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Chhattisgarh High Court · body

2009 DIGILAW 20 (CHH)

BRIJLAL SHARMA v. UNION OF INDIA

2009-01-19

SATISH K.AGNIHOTRI

body2009
JUDGMENT 1. By this petition, the petitioner seeks a direction to the respondent No.1/ Union of India to grant Swatantrata Sainik Samman Pension (for short, "SSSP") under the provisions of Bharat Sarkar Sainik Samman Scheme, 1980 (for short, "the Scheme"). 2. The indisputable facts, in nutshell, as projected by the petitioner are, that the respondent No.1 introduced a scheme known as Freedom Fighters Scheme 1972 for grant of pension to freedom fighters and their family. The said scheme was later on modified and new scheme namely Swatantrata Sainik Samman Pension Scheme, 1980 was introduced with effect from 1-8-l980 (Annexure P/2). One of the eligibility conditions for grant of pension under Clause (4) of the Scheme is that a person has gone underground for more than six months. The petitioner is a treed on fighter and duly recognized by the State of Chhattisgarh. The petitioner is receiving freedom fighters pension from the State Government under M.P. Swatantrata Sangram Sainik Samman Nidhi Rules, 1972 (for short, "the Rules 1972") (Annexure P/13). The petitioner is entitled to grant of SSSP under the Scheme. The petitioner in accordance with scheme made an application on 28-1-1982 (Annexure P/1) which was received on 2-2-1982. The last date for submitting the application under the Scheme was 31-3-1982. The respondent No.1 rejected the application of the petitioner which was communicated to the petitioner by letter dated 21-7-1998. The petitioner thereafter submitted his representation dated 13-12-1999 the same was also rejected by order dated 7-2-2000 (Annexure P/12). Thus. this petition. 3. Mr. A.K. Tiwari, learned counsel appearing for the petitioner would submit that the claim of the petitioner was rejected on three grounds which are as under: "i. The petitioner as only l3-14 of his age during the freedom movement which creates doubt that wamll1t of arrest would have not been issued against, a minor. ii. The certifier (Shri Magan Lal Bagri) at one place did not indicate any reason for the petitioners remaining underground. While in another certificate being same date as the earlier one all the three reasons has been tick marked creating doubt about the genuineness of the certificate. iii. The petitioner did not produce any Court record or Non Availability of Records Certificate (for short "NARC") which is a pre-requisite to substantiate the claim of underground suffering. iv. While in another certificate being same date as the earlier one all the three reasons has been tick marked creating doubt about the genuineness of the certificate. iii. The petitioner did not produce any Court record or Non Availability of Records Certificate (for short "NARC") which is a pre-requisite to substantiate the claim of underground suffering. iv. In the application (Annexure P/1) the petitioner stated that during the Quit India Movement, 1942, the petitioner was arrested on 9th August, 1942 and was kept in Police Lockup for 36 hours. Thereafter, again when he actively participated in a March violating Section 144, an arrest warrant was issued due to which he remained underground from 15-9-1942 till October, 1943. The said warrant of arrest was issued on 15-9-1942. Further, the petitioner has also stated that in the year 1946-1947 -1948, he participated in the Agitation under the Hindustan Lal Sena and Congress Socialist Party for unification of the federations." 3. Learned counsel would further submit that the respondent No,1 considers the claim of the freedom fighters for pension on the basis of the report submitted by the State Government after due investigation. In the present case, the respondent No.2/State has not only recommend for grant of SSSP, but granted State Freedom Fighters Pension also. So far as the ground of rejection i.e., the petitioner was minor at that point of time is of no relevance as several minors have jumped into the freedom struggle leaving their schools and colleges. The Supreme Court in a catena of decisions has taken the judicial notice of the fact that freedom fighters of 12 and 15 years of age took part in the freedom struggle. Further, there is no provision under the Scheme also that a freedom fighter, who was minor during freedom struggle, cannot claim benefit of the pension scheme. With regard to Personal Knowledge Certificate (for short, "PKC") ofShri Magan Lal Bagri that he does not belong to the same District, is baseless. The application was not rejected on the ground that PKC is issued by a certifier was not genuine or forged or fabricated. With regard to Personal Knowledge Certificate (for short, "PKC") ofShri Magan Lal Bagri that he does not belong to the same District, is baseless. The application was not rejected on the ground that PKC is issued by a certifier was not genuine or forged or fabricated. PKC issued by Shri Magan Lal Bagri was verified by the State Government and Slill Magan Lal Bagri, who was a Member of Parliament from Mahasamund constituency, belongs to the same District i.e., District Raipur, as Mahasamund constituency was a part of the District Raipur in the erstwhile State of C.P. & Barar Province of the country. In respect of NARC, Clause 9 (b)(2) of the Scheme specifically provides that if the Government records are not available, in that event the fact can be established by a certificate issued by eminent freedom fighter who had undergone imprisonment for at least five years or more. Shri Magan Lal Bagri had submitted PKC, who had undergone imprisonment for more than five years. It is a case of NARC as it is proved by the certificate (Annexure P/ 14) issued by the Superintendent of Police, Raipur. The State Government before making the recommendation for grant of pension under the Scheme has done due investigation and verification. The reasons assigned by the respondent No.1 for rejection of the claim of the petitioner is arbitrary, unreasonable and against the provisions and object of the Scheme. Thus, the petitioner is entitled to the benefit of the pension with effect from the date of application, made within the prescribed time. 4. Per contra, Mr. S.K. Beriwal, learned counsel appearing for the respondent No.1 /Union of India would submit that in the Scheme, eligibility criteria for pension was modified and the minimum requirement of six months was reduced to three months in case of women and SC/ST Freedom Fighters. In case of other Freedom Fighters, it was made minimum six months imprisonment/abscondencel internment/externment on the basis of the jail certificate. In the event, the jail certificate is not available, it is required to produce NARC and co-prisoner certificate. In case the certifier is an MP or MLA or an Ex-MP or Ex-MLA who had been freedom fighter himself only one certificate is sufficient. In case of the applicant claiming underground suffering, he was required to submit Court's Government's orders proclaiming the applicant as an offender or any other document. In case the certifier is an MP or MLA or an Ex-MP or Ex-MLA who had been freedom fighter himself only one certificate is sufficient. In case of the applicant claiming underground suffering, he was required to submit Court's Government's orders proclaiming the applicant as an offender or any other document. If the records are not available, the requirement is the certificate from NARC from the State Government and PKC from a prominent freedom fighter having two years imprisonment. He should fulfill any of the conditions i.e., he should be a proclaimed offender, or an award for his arrest/head was announced against him, or a detention order was issued against him but could not be served. 5. Learned counsel would further submit that the petitioner ,has not submitted any certificate, except a certificate issued by Shri Magan Lal Bagri, who was a Member of Parliament and has suffered imprisonment for more than five years. Since Shri Magan Lal Bagri belongs to other district, his certificate was not considered. The petitioner had not submitted Matriculate or Birth Registration Certificate for the purpose of verifying his age. The claim of the petitioner for 13 months underground from 15-9-1942 to 31-10-1943 was not supported by any document. The State Government of-course duly recommended, on scrutiny, the application of the petitioner for grant of pension, the State Government made it clear that the petitioner was involved in students' movement and had gone underground during the freedom movement. Shri Magan Lal Bagri in his certificate had not stated any reason for the petitioner's remaining underground. The petitioner has tick marked all the three reasons which create doubt about the genuineness of the certificate. On full and proper enquiry, the claim of the petitioner was not found and as such the same was rejected in accordance with the Scheme. 6. Mr. A.S. Kachhawaha, learned Deputy Advocate General appearing for the respondents No.2 and 3/State would submit that the petitioner is a freedom fighter and accordingly the State Government is giving Rs.5000/- per month as Samman Nidhi under the scheme of M.P. Freedom Fighter Samman Pension Yojna, 1980 with effect from 1-3-1997 to the petitioner. The State Government has made recommendation after due verification on 29-8-1997 (Annexure R-2/2). 7. I have heard learned counsel for the parties, perused the pleadings and documents appended thereto. The State Government has made recommendation after due verification on 29-8-1997 (Annexure R-2/2). 7. I have heard learned counsel for the parties, perused the pleadings and documents appended thereto. It is evident that the Government of India specifically framed a scheme namely Swatantrata Sainik Samman Pension 1972 thereafter Bharat Sarkar Sainik Samman Scheme, 1980 was framed which came into force with effect from 1-8-1980. 8. Clause (4) of the Scheme provides for eligibility, which reads as under: The petitioner submitted an application alongwith PKC certificate issued by Magan Lal Bagri, Ex Member of Parliament, who had undergone imprisonment for more than five years, to the effect that the petitioner remained underground for more than six months for the period from 15th September, 1942 to 31st October, 1943. In addition, the Superintendent of Police has also given NARC on 20.03.1990 (Annexure P/14) to the effect that no records of the relevant time are available. It is an admitted case of the learned counsel appearing for the respondent No.1, Government of India, that if the government records are not available, the same can be established by a certificate (PKC) issued by an eminent freedom fighter who had undergone imprisonment for at least five years or more. There is no doubt about imprisonment of Shri Bagri for more than five years and NARC issued by the Superintendent of Police. b the present case, NARC is also available and the certificate (PKC) is also given by known freedom fighter, Magan Lal Bagri. 11. The second objection that Magan Lal Bagri does not belong to the same District is not tenable. Magan Lal Bagri was an Ex Member of Parliament from Mahasamund and at the relevant time, Mahasamund was a part of the District Raipur under the C.P & Berar Province. The State Government has categorically recommended that on verification, it was found that he had gone underground during his schooling. Thus, the reason for not granting pension on the ground that he was minor, is baseless. 12. In R. Narayan Vs. Union of India & another, the Hon'ble Supreme Court observed as under: "10. The State Government has categorically recommended that on verification, it was found that he had gone underground during his schooling. Thus, the reason for not granting pension on the ground that he was minor, is baseless. 12. In R. Narayan Vs. Union of India & another, the Hon'ble Supreme Court observed as under: "10. The Scheme has been formulated with a view to acknowledge the services rendered to the country by patriotic citizens during the freedom movement and who had suffered at the hands of the British Rulers in one way or the other and to compensate them in some measure for their sacrifices for the sake of the country. The respondents are therefore not justified in refusing to grant pension to the appellant under clause (e) of the Scheme on the ground that the permanent incapacitation suffered by him does not satisfying the requirements of clause (e) of the Scheme.... 11. ..... There is neither justice nor grace in the respondents putting forth such objections. No one can really expect official records to have been preserved for a period of 40 years to prove the treatment given to the petitioner for the injuries sustained by him during the freedom struggle. Hence the objection relating to non-production of official records of the relevant period by the appellant to prove the sustainment of injury by him deserves outright rejection as well as outright condemnation...." 13. In Mukund Lal Bhandari and others Vs. Union of India and others, the Hon'ble Supreme Court observed as under: "6. 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." 14. The Supreme Court, in Gurdial Singh Vs. Union of India and other;, dealing with a case where the Union of India rejected the claim on the ground that Gurdial Singh was only 15 years of age at that time, it was observed as under: "6. The scheme was introduced with the object of providing grant of pension to living freedom fighters and their families and to the families of martyrs. The scheme was introduced with the object of providing grant of pension to living freedom fighters and their families and to the families of martyrs. It has to be kept in mind that millions of masses of this country had participated in the freedom struggle without any expection of grant of any scheme at the relevant time. It has also to be kept in mind that in the partition of the country most of citizens who suffered imprisonment were handicapped to get the relevant record from the jails where they had suffered imprisonment. The problem of getting the record from the foreign country is very cumbersome and expensive. Keeping in mind the object of the scheme, the concerned authorities are required that in appreciating the scheme for the benefit of freedom fighters a rationale and not a technical approach is required to be adopted. It has also to be kept in mmd that the claimants of the scheme are supposed to be such persons who had given the best part of their life for the country. This Court in Mukand Lal Bhandari's case (supra) observed: "The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. In fact many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affiont to the sense of patriotism with which they plunged in the Freedom Struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available in respective of the income limit. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available in respective of the income limit. Secondly, and this is equally important to note, since we are by this decision making the benefit of the scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. Lastly, the pension under the present Scheme is not the only benefit made available to the freedom fighters or their dependents. The preference is employment, allotment of accommodation and in admission to schools and colleges of their kith and kin etc., are also the other benefits which have been made available to them for quite sometime now." The petitioner was granted relief in that case. 15. Having regard to the facts situation of the case and in view of the dicta laid down by the Hon'ble Supreme Court in the cases (supra), the respondent No.1 is directed to reconsider the case of the petitioner and pass appropriate order in accordance with law, within a period of four months from the date of receipt of a copy of this order. 16. Accordingly, the petition stands disposed of. No order as to Costs. Petition Allowed.