Judgment 1. Smt. Lajwanti filed suit for declaration against the Union of India and State of Haryana to the effect that the stoppage and discontinuance of the freedom fighter pension of her late husband Devi Chand as mentioned in endorsement letter No. Pen. V/F.F/79.80/146-47 dated 27-7-1979 conveyed to late Devi Chand in letter bearing No. Pen.IV/FF/81/3550-51 dated 28-9-1981 issued by the Accounts Officer of the office of the Accountant General, Haryana Chandigarh is wrong, incorrect, against law and against the facts, unsustainable, unwarranted, arbitrary, non est, unenforceable, void, without any reason, unauthorised, uncalled for, non-speaking and the plaintiff is legally and factually entitled to receive and recover the pension amount given to her deceased husband Devi Chand and also to the amounts/arrears along with interest thereon with effect from 1-10-1981 and further she is entitled to the increased rate of pension at the rate of Rs. 750.00 per month from the Union of India and at the rate of Rs. 300.00 per month from the State of Haryana and for mandatory injunction directing the defendants to release the outstanding amounts of pension of her late husband Devi Chand to her, along with the increased amount with interest. It is alleged in the plaint that she is the widow of Devi Chand son of Ram Chand r/o Sirsa who was a freedom fighter and his pp. No. was 1638/GRFF. Devi Chand was a renowned freedom fighter. He took active part in the freedom struggle along with other patriots, Devi Chand along with other partiots took out a procession against British imperialism in June 1932 in Okara City (Now in Pakistan). Among others who participated in the procession, was one Shri Parkash Chand, a Hindu Drum Beater. All the processionists including Devi Chand was sentenced to five months imprisonment along with fine of Rs. 25.00. Her husband Devi Chand could not pay the amount of fine. He had to remain in Jail for six months in all. The order sentencing the processionists, including Sh. Devi Chand to jail was passed by the Magistrate in Tehsil Office, Okara. During the period of six months in jail Devi Chand was first taken to Montgommery from Okara and then to Lahore jail. Thereafter, he was released from Borstal Jail, Lahore on 23-12-1932. Keeping in view the sacrifices of Sh. Devi Chand, Deputy Commissioner. Devi Chand to jail was passed by the Magistrate in Tehsil Office, Okara. During the period of six months in jail Devi Chand was first taken to Montgommery from Okara and then to Lahore jail. Thereafter, he was released from Borstal Jail, Lahore on 23-12-1932. Keeping in view the sacrifices of Sh. Devi Chand, Deputy Commissioner. Sirsa recognised his work as of immense character and issued identity card to him. Besides this, Smt. Indira Gandhi the then Prime Minister of India also issued him "Tamra Patra" bearing No. 240 on 15/08/1972. He was honoured for the services rendered to the nation by him by the Principal and Staff of the National College, Sirsa (Now Government Post Graduate College, Sirsa). Thereafter, Government of Haryana in recognition of his services to the nation recommended his name for pension which was ultimately granted to him with effect from 15-8-1972, Devi Chand continued drawing pension till 30-9-1981. Thereafter his pension was discontinued without assigning any reason. Devi Chand wrote many letters to the authorities requesting them to release freedom fighter pension to him but to no effect. Devi Chand was a poor man with limited resources. His widow Lajwanti is also equally poor. She has no independent source of income. She was totally dependent on the income of her husband Devi Chand. Stoppage of pension by the defendants was wholly unjustified, illegal, against law and against facts, unenforceable, void, non est and uncalled for. Stoppage or discontinuation of pension is a very serious matter. No opportunity of hearing much less valid or adequate was ever given to Devi Chand who died on 1-5-1988 in as pitious condition, fighting for his right with the defendants. 2. Defendants contested the suit of the plaintiff. It was urged that the Freedom Fighters Pension Scheme, 1972 came into force with effect from 15-8-1972. The scheme provides for the grant of pension to the living freedom fighters, their families if the freedom fighters are no more now and to the widow of the martyrs. The minimum pension sanctioned to a freedom fighter was Rs. 200.00 per month in the case of living freedom fighters and Rs. 100.00 per month (where the freedom fighter was not alive) in a widow of the freedom fighter but in any case not more than one member of a family could be granted pension. The minimum pension sanctioned to a freedom fighter was Rs. 200.00 per month in the case of living freedom fighters and Rs. 100.00 per month (where the freedom fighter was not alive) in a widow of the freedom fighter but in any case not more than one member of a family could be granted pension. The rate of monthly pension was enhanced from time to time and now a widow gets the amount of pension which is equivalent to a living freedom fighters pension at the rate of Rs.750.00 per month from 14-11-1988 onwards. Under the scheme, a freedom fighter is one who had undergone at least six months sufferings/imprisonment/detention against an executive order/underground sufferings/externment/internment) in connection with the freedom struggle. Participation in the INA and in the Indian Independence League is also treated as participation in the National Liberation Movement. The Freedom Fighters Pension Scheme, 1972 was further liberalized in 1988 and it was renamed as "Swatantrata Sainik Samman Pension Scheme, 1980". It came into force with effect from 1-8-1980. The sufferings in respect of SC/ST and women Freedom Fighters were reduced to three months with a view that a large number of freedom fighters from weaker section could be benefitted. The income ceiling of Rs. 5000.00 per annum was also removed from 1-8-1980 onwards. The freedom fighters irrespective of their income would be eligible for the grant of pension if they, satisfy the other conditions of eligibility. Devi Chand applied for the grant of freedom fighter pension under the 1972 Scheme. In his application dated 22-4-1972 he stated that he was arrested in 1932 at Okara while doing anti-British activities. He claimed, that Magistrate. Montgommery awarded him 5 months rigorous imprisonment and fine of Rs. 25.00, or in default of payment of fine one month more rigorous imprisonment. He claimed to have undergone six months sufferings in all. He did not send any evidence of his suffering from official records or from any sitting or former MP/MLA, a certificate of co-prisonership for a minimum period of six months in connection with freedom movement. Freedom fighters, in whose cases, the official record of their sufferings was not available.could send a co-prisoners certificate with a certificate from the concerned jail authority indicating that the relevant record was/is not available now. Freedom fighters, in whose cases, the official record of their sufferings was not available.could send a co-prisoners certificate with a certificate from the concerned jail authority indicating that the relevant record was/is not available now. The Government of Harvans forwarded its recommendation in October, 1973 wherein vide its list containing various names in their letter dated 20-9-1973 did not recommend this case for the grant of pension. The case of the plaintiffs husband was processed and sanction of pension was accorded to late Devi Chand inadvertently. Sanction was issued on 22-11-1973 and it was provisional in nature. It was further urged that late Devi Chand had shown his age in his application in 1972 as 54 years. It means that he was born in 1918 and took part in 1932 Civil Disobedience Movement when he was hardly 14 years old. Late Devi Chand was thus under aged and an under aged was generally not awarded rigorous imprisonment during those days. He could either be awarded physical punishment or fine but he could not be awarded both rigorous imprisonment and fine simultaneously. It was also urged that assuming that Devi Chands version was correct in this case, the imprisonment/sufferings awarded was for 5 months which was less than the prescribed requirement of 6 months sentence under the scheme. There is no evidence from records whether the fine was paid or not. On the receipt of reference from the Government of Haryana in September, 1978 where it was mentioned that there was a case ITR No. 111 dated 19-3-1978 under S. 420, IPC in Police Station, Dabwali against some persons including late Devi Chand and the State Government had desired that necessary document in respect of these cases may be made available to them, the case of late Sh. Devi Chand was reviewed instantaneously and it was noticed that sanction was made in this case through over sight while Government of Haryana did not recommend his case in their letter dated 20-9-1973. The pension granted to late Devi Chand was suspended on 29-6-1979 and a show cause notice was issued simultaneously. The reasons of the ineligibility of the freedom fighter for the grant of pension were clearly informed that he did not produce any jail certificate of his sufferings. The pension granted to late Devi Chand was suspended on 29-6-1979 and a show cause notice was issued simultaneously. The reasons of the ineligibility of the freedom fighter for the grant of pension were clearly informed that he did not produce any jail certificate of his sufferings. Even after the receipt of show cause notice, Devi Chand did not produce any document that he had been sentenced to 6 months sufferings and the pension was finally cancelled in December 1982 by the Home Ministry. Late Devi Chand was thus not proved to be a freedom fighter. He had failed to produce any documentary evidence regarding his sufferings. 3. On these pleadings of the parties, the following issues were framed : 1. Whether the plaintiff is entitled to the relief of declaration with consequential relief of mandatory injunction as prayed for in the head note of the plaint? OPP 2. Whether the plaintiff has no cause of action to file the present suit? OPD 3. Whether the suit of the plaintiff is not maintainable in the present form? OPD 4. Whether the suit of the plaintiff is bad for want of notice under S. 80 of CPC? OPD 5. Whether the suit of the plaintiff is bad for want of mis-joinder and non-joinder of necessary parties? OPD 6. Relief. 4. Vide order dated 24-10-1994 Senior Subordinate Judge, Sirsa dismissed the plaintiffs suit, in view of his finding that the plaintiff has failed to prove that her late husband Devi Chand had participated in the freedom struggle and that his participation in the freedom struggle was viewed as an act of defiance against British Imperialism. It was also found that she had failed to prove that on that score, her late husband Devi Chand was sentenced to undergo six months sufferings/imprisonment/detention. A direction was, however, given to the defendants to locate/procure the record, if any, showing the detention of late Devi Chand from the concerned jail authorities in Pakisthan. It was also directed that if at any stage it transpired that late Devi Chand did remain in jail for a total period of six months, plaintiffs case shall be taken up de novo at once to meet the ends of justice. 5. Feeling dissatisfied with the order of Senior Subordinate Judge, Sirsa dated 24-10-1974 Smt. Lajwanti filed Civil Appeal No.34 of 1994/1998. 5. Feeling dissatisfied with the order of Senior Subordinate Judge, Sirsa dated 24-10-1974 Smt. Lajwanti filed Civil Appeal No.34 of 1994/1998. Defendants Union of India/State of Haryana filed Civil Appeal No. 33 of 1994/1998. 6. Vide order dated 16-4-1998, Additional District Judge, Sirsa allowed Civil Appeal No. 34 of 1994/1998 filed by Lajwanti and dismissed Civil Appeal No. 33 of 1994/1998 filed by the Union of India/State of Haryana. In consequence she was given declaration that she was entitled to the pension amount with effect from 1-10-1981 at the rate prevailing from time to time, with interest at the rate of 12% per annum. She was also given declaration that she was entitled to be paid pension in future also as per her entitlement. 7. Not satisfied with the order of Additional District Judge, Sirsa dated 16-4-1998, two appeals have been filed i.e. one by the Union of India namely RSA No. 92 of 1999 and the other by the State of Haryana namely RSA No. 1314 of 1999. 8. As both these appeals have arisen from one and the same order of Additional District Judge, Sirsa dated 16-4-1998. I will dispose of both these appeal through this common order. 9. It was submitted by the learned counsel for the Union of India that late Devi Chand was not answering the description of a freedom fighter as given in the Freedom Fighters Pension Scheme, 1972 . The Freedom Fighters Pension Schme, 1972 provides the conditions which go to make a person eligible for the grant of freedom fighters pension. It reads as under : "4. Who is eligible? For the purpose of grant of Samman Pension under the scheme, a freedom fighter is" (a) a person who had suffered a minimum imprisonment of six months in the mainland jails before Independence. However, Ex-INA personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India. (b) the minimum period of actual imprisonment for eligibility of pension has been reduced to three months in case of women and SC/ST freedom fighter from 1-8-1980. 10. It was submitted that Smt. Lajwanti has failed to prove that her husband Devi Chand been sentenced to undergo six months rigorous imprisonment. (b) the minimum period of actual imprisonment for eligibility of pension has been reduced to three months in case of women and SC/ST freedom fighter from 1-8-1980. 10. It was submitted that Smt. Lajwanti has failed to prove that her husband Devi Chand been sentenced to undergo six months rigorous imprisonment. It was submitted that pension was introduced to the freedom fighters by way of Samman to them during 25th anniversary (Silver Jubilee Year) of Independence under a central scheme by the Government of India. The scheme commenced from 15/08/1972 and provided for the grant of pension to living freedom fighters and their families, if they are no more alive, and to the families of martyrs. Till 31-7-1980 the freedom fighters pension was admissible only to those who were in need of financial assistance on account of their meagre annual gross income. An annual income ceiling of Rs. 5000.00 was enforced for eligibility to pension. From 1-8-1980, the benefit of the pension scheme was extended to all freedom fighters as a token of "Samman" to them. 11. It was submitted that the perusal of the aforesaid clause (a) of para 4 of the Scheme makes it abundantly clear that what is germane is suffering of minimum imprisonment of six months in the mainland jails before Independence but not merely suffering an order awarding imprisonment of six months, It was also submitted that Devi Chand had nowhere shown that he was eligible for the grant of freedom fighters pension. If he was granted freedom fighters pension under some mistaken belief the benefit of freedom fighter pension could be withdrawn from him. It was submitted that in the application filed by Devi Chand for the grant of pension, he had given his age as 54 years in 1972. If that was so, he was born in the year, 1918. In the year, 1932 i.e. when he was 14 years old, he could not understand the import of what freedom to the motherland from the foreign yoke connotes and further he could not be sentenced to any rigorous imprisonment because of such a raw age. It was submitted that the grant of "Tamra Patra" Ex. P-1 to Devi Chand as freedom fighter on 15-8-1972 under a mistake of fact did not confer upon him an indefeasible right to continue to draw pension. It was submitted that the grant of "Tamra Patra" Ex. P-1 to Devi Chand as freedom fighter on 15-8-1972 under a mistake of fact did not confer upon him an indefeasible right to continue to draw pension. As soon as it became known to the Government that he was not answering the description of freedom fighter as given in the Freedom Fighters Scheme, 1972, the order sanctioning freedom fighter pension to him was withdrawn. It was submitted that if he was honoured by the Principal and Staff of the National College, Sirsa recognizing him as a freedom fighter, that was of no consequence when there was no basis for such recognition proved by Devi Chand. It was submitted that for his being eligible for drawing freedom fighters pension, he was required to send a co-prisoners certificate with a certificate from the concerned jail authority indicating that the relevant records were/are not available now. It was submitted that he did not send any certificate of his sufferings from official records or from sitting or former MP/MLA a certificate of co-prisonership for a minimum period of months in connection with the freedom movement. 12. It was submitted that it was a case where Devi Chand did not have any evidence to show, that he was a freedom fighter and that he took active part in the freedom struggle along with other patriots and he took procession against British Imperalism in June, 1932 along with one Parkash Chandra a Hindu Drum Beater. It was submitted that the High Court should not interfere with the order of the Government whereby the Government has rejected his claim to the grant of freedom fighter pension. 13. In support of this submission, learned counsel drew my attention to Union of India V/s. R. V. Swamy alias R. Vellaichamy, AIR 1997 Supreme Court 2069 where it was held that where there is no proof that he was actually sentenced and he was relying on certificates of prominent freedom fighters and the Government rejected his claim, it being matter of appreciation of evidence, High Court could not direct grant of pension to applicant. 14. In Union of India V/s. Mohan Singh (1996) 10 SCC 351 the High Court directed the Government to consider the case of the respondent therein for grant of Freedom Fighter Pension. 14. In Union of India V/s. Mohan Singh (1996) 10 SCC 351 the High Court directed the Government to consider the case of the respondent therein for grant of Freedom Fighter Pension. The respondent therein relied upon a certificate of co-prisoner and an MLA and sought pension on that basis. The Government considered the certificate and found the same as not acceptable. When the second writ petition was admitted on the ground that the certificate of MLA was sufficient proof, the Hon ble Supreme Court following the judgment in Mukand lal Bhandaris case 1993 AIR SCW 2508 at 2512-13 held as follows: "As regards the sufficiency of the proof, the Scheme itself mentions the documents which are required to be produced before the Government. It is not possible for this Court to scrutinize the documents which according to the petitioners, they had produced in support of their claim and pronounce upon their genuineness. It is the function of the Government to do so. We would therefore direct accordingly. 15. It was submitted that the Hon ble Supreme Court has thus held that the High Court would not interfere where the Government on appreciation of evidence has come to the conclusion that the freedom fighters claim to pension sought to be made out by the so-called freedom fighter is not made out. 16. It was submitted that a case FIR No. 111 dated 19-1-1978 was registered under Sec. 420, IPC at Police Station, Dahwali against the several so-called freedom fighters including Devi Chand for having put in false claim to freedom fighters pension. State Government called upon them to furnish some documents so that it could be examined whether they had been granted freedom fighter pension justifiably. The State of Haryana recommended the withdrawal of pension from Devi Chand. As such the grant of pension to him was suspended on 29-6-1979 and a show cause notice was issued to Devi Chand simultaneously. After the rceipt of show cause notice, Devi Chand failed to produce any documentary evidence regarding his claim to sufferings. His pension was finally cancelled in December, 1982 by the Home Ministry Devi Chand was not proved to be a freedom figher. His case for the grant of freedom fighters pension was never recommended. He was granted pension inadvertently and provisionally, which was liable to be cancelled without any notice. His pension was finally cancelled in December, 1982 by the Home Ministry Devi Chand was not proved to be a freedom figher. His case for the grant of freedom fighters pension was never recommended. He was granted pension inadvertently and provisionally, which was liable to be cancelled without any notice. It was submitted that assuming that he had been sentenced to 5 months rigorous imprisonment and fine of Rs. 25.00 for taking out a procession among others processionists against British imperialism there is no evidence that the amount of fine was not paid by him and that he actually underwent 6 months suffering. 17. Learned counsel for Smt. Lajwanti, on the other hand, submitted that her husband Devi Chand was a freedom fighter inasmuch as he had undergone six months rigorous imprisonment in a jail now falling within the Pak territory for having taken out procession against British imperialism in the month of June, 1932 in Okara City. It was submitted that he was allowed pension and for withdrawal of pension, he ought to have been heard. It was submitted that even if the application was not accompanied by the necessary proof of eligibility, the pension under the Freedom Fighters Scheme, could not be discontinued. In support of this submission, he drew my attention to Rattan Devi alias Rattan Singh V/s. Union of India 1994 (3) SLR 791. It was submitted that the Union of India/State of Haryana should have taken precaution before granting pension to Devi Chand. 18. Suffice it to say, it was for late Devi Chand to adduce proof in support of his eligibility to freedom fighters pension. Freedom Fighters Pension was only "Samman" conferred on freedom fighters by the Government, which was in recognition of the sacrifices made by them for liberating the mother- land from the foreign yoke. Who is eligible for the grant of "Samman Pension" has been dealt with in the scheme itself. He has had to furnish a certificate from a co-prisoner who should either be a sitting MP/MLA or former MP/MLA that he was a co-prisioner with him for a minimum period of six months in connection with freedom movement, if he was unable to produce evidence from the official record of his suffering. The statement of Smt. Lajwanti P.W. 1 is of no consequence as she gave her age as 60 years as on 18-3-1994. The statement of Smt. Lajwanti P.W. 1 is of no consequence as she gave her age as 60 years as on 18-3-1994. In other words she was born in the year, 1934. Her statement could have been given some credence if she were the spouse of Devi Chand in the year, 1932. 19. Plaintiff is seeking the continuation of freedom fighter pension allowed to her husband. Her claim is not barred by any provision of the Pension Act, 1871 because freedom fighters pension scheme has created a right in favour of a freedom fighter in recognition of his sacrifices for securing liberation of his mother land from foreign yoke. For the reasons given above, both these appeals succeed and are allowed. In consequence, the plaintiffs suit is dismissed, in the peculiar circumstances of the case, the parties are left to bear their own costs throughout. Appeals allowed.