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2001 DIGILAW 115 (ALL)

AYODHYA PRASAD v. UNION OF INDIA

2001-02-07

B.K.ROY, D.R.CHAUDHARY

body2001
( 1 ) THE petitioner, who claims to be a freedom fighter, has come up with a prayer to issue a writ, order or direction in the natue of certiorari quashing the order dated 3-2-1999 as contained in Annexure-1 and to direct the Respondents to pass an order reviving his political pension granted to him by order dated 31-5-1975 and to pay up-to-date arrears from 1977 and continue to pay the same during his life time. ( 2 ) TE undisputed factual matrix of the case, as born out from the records are as follows :-FROM Annexure-4 to the writ petition and Annexure-1 to the Supplementary affidavit it is apparent that vide letter dated 31-5-1975 Ministry of Home Affairs, Government of India informed the Accountant General U. P. II, Allahabad that the Government of India had sanctioned a sum of Rs. 200. 00 per month as political pension to the petitioner which the petitioner continued to4 receive till it was cancelled vide Government Order No. 164 ZK 16-82-208 K. P. /78 dated 6-11-1982 as communicated to the petitioner vide District Magistrate, Bandas letter dated 18-12-1982 (as contained in Annexure-3 ). The District Magistrate, Banda by the same letter also asked the petitioner to approach the Ministry of Home Affairs, Government of India for his grievances, if any, in the matter and directed him to deposit the amount received within one week failing which strong steps will be taken for their recovery. The petitioner approached the Government of India but without any success. He then moved this Court through Civil Misc. Writ Petition No. 8470 of 1983 seeking quashing of the communication dated 18-12-1982 aforesaid. That Writ Petition was finally disposed of by order dated 18-8-1998 with the following direction to the respondent Union of India "to decide the matter himself or get it decided by any appropriate authority on a representation to be made by the petitioner within a period of two weeks from today. The approprite authority will decide the matter within a period of three months from the date of making the said representation after giving the petitioner opportunity of hearing. The approprite authority will decide the matter within a period of three months from the date of making the said representation after giving the petitioner opportunity of hearing. " Respondent No. 1 vide order dated 3-2-1999 rejected the representation of the petitioner without giving any opportunity of hearing to the petitioner solely on the ground that the report from Government of Uttar Pradesh regarding his detention under the Defence of India Rules for a period of six months has not been received even though through the letters dated 21-10-1998 and 25-1-1999 (Annexure 8 and 9) the information was already furnished by the State of U. P. ( 3 ) THIS Court by order dated 9-9-1999 granted time to learned Standing Counsel for the Central Government and the State Government to file counter affidavits within one month. Despite the time granted, no counter has been filed either by the Central or by the State Government. The Hearing and Submissions made :- ( 4 ) SRI J. H. Khan, holding brief of Sri W. H. Khan, learned counsel appearing for the petitioner, took us to the pleadings of the petitioner and the various Annexures. ( 5 ) SRI Khan contended that the petitioner was imprisoned under the Defence of India Ruls and had remained under detention for more than six months in the District Jail, Banda and the respondents after having examined the requisite material had sanctioned him the political pension but the Government of India respondent No. 1 has cancelled that pension in a wholly arbitrary manner, mechanically, without application of mind and without affording any opportunity of hearing to the petitioner; the material in regard to imprisonment of the petitioner, sent by the Government of Uttar Pradesh has been deliberately overlooked; and thus the order impugned deserves to be set aside. ( 6 ) SRI Mahendra Bahadur Singh, learned Standing Counsel appearing for the Union of India submitted that letters were sent to Respondent No. 1 to file counter affidavit but no one turned up to file the same. Sri Singh, however, argued that the order impugned has been passed as the State Government did not send its report regarding detention of the petitioner in jail under the Defence of India Rule for a period of six months which was called for by the Government of India and tried to justify passing of the impugned order. Sri Singh, however, argued that the order impugned has been passed as the State Government did not send its report regarding detention of the petitioner in jail under the Defence of India Rule for a period of six months which was called for by the Government of India and tried to justify passing of the impugned order. ( 7 ) SRI Sabhajit Yadav, learned Standing Counsel appearing for the State of Uttar Pradesh also took up initially a similar stand in regard to non filing of counter affidavit but later on took us to Annexures 8 and 10 to the writ petition and on the strength of these Annexures submitted that the State Government has already sent the required report stating very clearly that the petitioner was detained from 19-1-1944 to 30-7-1944 in the District Jail Banda under the Defence of India Rules. Our Findings :- ( 8 ) UNDISPUTEDLY the letters dated 21-10-1998 and 25-1-1999 (Annexure 8 and 10 to the writ petition) furnished the required information to the Central Government that the petitioner was detained for a period of six months in District Jail Banda under the Defence of India |rules. Further from Annexure 9 to the writ petition it is clear that the Jail Superintendent and District Magistrate, Banda had already issued Certificate dated 13-6-1975 certifying the fact that the petitioner had remained from 19-1-1944 to 30-7-1944 in detention in the District Jail, Banda under the |defence of India Rules. ( 9 ) UPON regard being had to the uncontroverted pleadings and discussions aforesaid and invoking the doctrine of non-traverse we are of the view that on the face of5 record i. e. Annexures 8, 9 and 10 to the writ petition the submission made by Sir Singh are devoid of merits and thus not accepted. On the other hand submissions made by Sri Khan finds full support from the aforesaid three Annexures coupled with the uncontroverted pleadings. Moreover Sri Yadav, learned Standing Counsel for the State of Uttar Pradesh has very fairly conceded the fact that the petitioner was jailed and had remained imprisoned under the Defence of India Rules for six months and the report in this regard has already been sent to the Ministry of Home, Government of India. Moreover Sri Yadav, learned Standing Counsel for the State of Uttar Pradesh has very fairly conceded the fact that the petitioner was jailed and had remained imprisoned under the Defence of India Rules for six months and the report in this regard has already been sent to the Ministry of Home, Government of India. ( 10 ) WE, accordingly, hold that the petitioner was imprisoned in the District Jail, Banda for a period of six months from a 19-1-1944 to 30-7-1944 under the Defence of India Rules. ( 11 ) THE imprisonment aforesaid being requisite condition for entitlement to the political pension under the scheme of grant of political pension to the freedom fighters the impugned order in which the Government Order No. 164 Z. K. 16-82-208 KP/78 dated 6-11-1982 stood merged, therefore, deserves to be quashed. The Result :- ( 12 ) IN the result this writ petition is allowed. The order impugned dated 3-2-1999 (Annexure 1 to the writ petition) passed by the under Secretary, Ministry of Home Government of India, New Delhi, is quashed and the Respondent No. 1 is commanded to resume political pension of the petitioner and pay arrears from 1977 till the date of its resumption within a period of three months. ( 13 ) THERE is no question of deposit by the petitioner of his pension amount which he had received as pension as directed vide order dated 6-11-1982. ( 14 ) IN the pecular facts and circumstances we hold that the petitioner is also entitled to cost quantified to Rs. 1,000. 00 only of this proceeding from Respondent No. 1. ( 15 ) THE office is directed to hand over a copy of this order to Sri Mahendra Bahadur Singh, learned Standing Counsel of the Union of India and Sri Sabhajit Yadav, learned Standing Counsel for the State within one week for its intimation to and follow up action the Respondent. Petition allowed. .