SRINAGAR, Sept. 30, KDC: Holding that “fraud unravels everything” and that the passage of time cannot validate illicit financial gains, the High Court of Jammu & Kashmir and Ladakh has dismissed a petition filed by a Border Security Force (BSF) personnel challenging the recovery of Rs 6 lakh ex-gratia relief drawn in 1997 for six family members falsely reported as killed in militant violence who had actually migrated to Pakistan-occupied Kashmir (PoK).
Dismissing the writ petition, Justice Rajnesh Oswal upheld the recovery proceedings initiated by the Union Territory administration and BSF authorities, which directed the deduction of the Rs 6 lakh relief from the petitioner’s salary in 30 monthly installments to reimburse the public exchequer.
The petitioner, Nazir Ahmad Mir, a resident of village Shalla Bathu near the Line of Control (LoC) in Kupwara district and a serving BSF jawan, claimed that his residential house was torched by militants in May 1993, resulting in the brutal killing of his father, mother, two brothers, and two sisters.
Four years later, in 1997, Mir lodged an application at Police Station Kupwara. Following a Daily Diary report and death certificates issued by local authorities, the District Level Screening-cum-Coordination Committee approved ex-gratia relief of Rs 1 lakh for each deceased family member on September 15, 1997, which was disbursed exclusively to him.
The controversy surfaced in May 1999 following a published newspaper report titled “Government gives away relief package for dead families living in PoK”. Subsequent inquiries ordered by the Ministry of Home Affairs, the J&K Home Department, and the Divisional Commissioner, Kashmir, uncovered that Mir’s relatives had not been killed in militancy, but had crossed the LoC into PoK alongside other border residents.
An administrative probe conducted by the Additional Deputy Commissioner (ADC), Kupwara, confirmed that the ex-gratia had been fraudulently procured through fabricated records in active collusion with local police and revenue personnel. Consequently, BSF authorities issued orders in July 2023 to recover the full amount from his salary.
Challenging the recovery before the High Court, Mir’s counsel argued that the ex-gratia had been sanctioned following an official inquiry over 25 years ago and could not be reopened. He contended that Indian authorities had no mechanism to verify facts in PoK, asserting that the recovery was arbitrary and carried out without affording him a reasonable opportunity of hearing.
Justice Rajnesh Oswal rejected these contentions, pointing out that official records demonstrated Mir had been issued notice and his statement was recorded during the inquiry conducted by the ADC, Kupwara, in 2001, leaving his plea of natural justice without merit.
Scrutinizing the timeline and factual claims, the court observed, “One fact that becomes apparent from the aforementioned report is that the alleged incident occurred in May 1993; yet, after a considerable lapse of four years, the report dated 08.03.1997 was entered into the Daily Diary Register of Police Station Kupwara. Notably, the death certificates were likewise issued later, in September 1997. A specific query was posed by this Court to the learned counsel appearing for the petitioner as to whether the bodies of the deceased family members were handed over to the petitioner. The learned counsel candidly submitted that the bodies were never delivered to him. It strains credulity that the petitioner’s family members allegedly passed away in 1993, yet the petitioner remained silent for four long years without making any effort to ascertain their whereabouts.”
Highlighting the fraudulent nature of the claim, the Bench ruled that allowing Mir to retain the funds would amount to sanctioning unjust enrichment.
“It appears that verification exercise was triggered following a 1999 news report exposing fraudulent compensation claims for persons alive in PoK. Crucially, in the present case, not even a single body of the petitioner’s alleged deceased family members was ever found,” the Court said, adding” Respondent Nos. 2 to 4 rightly concluded that the sanction of Rs 6.00 lakhs was procured in collusion with police and revenue officials. Permitting the petitioner to retain these funds would perpetuate unjust enrichment, as the very basis of the grant has been established as false.”
“From the multiple decisions of this Court on ‘fraud’, what follows is that fraud and justice cannot dwell together, the legislature never intends to guard fraud, the question of limitation to exercise power does not arise, if fraud is proved, and even finality of litigation cannot be pressed into service to absurd limits when a fraud is unravelled,” the Court added.
Holding that the petition lacked legal merit, the High Court dismissed the plea and upheld the recovery process against the soldier.
Advocate Dar Khurshid appeared for the petitioner. Central Government Counsel Faizan Ganai, appearing vice Deputy Solicitor General of India T. M. Shamsi, represented the Union of India and BSF authorities, while Government Advocate Ilyas Laway appeared for the respondent UT administration. (KDC)
