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2016 DIGILAW 2683 (HP)

GULABU DEVI v. STATE OF H. P.

2016-12-19

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present writ petition is maintained by the petitioner against the respondents praying therein for the following relief:- "(a) for issuance of an appropriate writ in the nature of mandamus directing the respondents to calculate all the arrears with respect to the financial assistance as provided to the widows of freedom fighters, including the arrears of the Pension Scheme and to pay the same to the petitioner with interest @ 9% per annum." 2. The petitioner has submitted that she is an old aged lady and her husband was Freedom Fighter, who participated in the freedom struggle, for which, he was not only jailed, but property was confiscated and the family had to remain underground for a long period. It has also been averred that on 25th Anniversary of the Independence, the husband of the petitioner was awarded with 'Tamar Patra'. The petitioner never tried to know that whether any acknowledgement or any financial assistance was given to her late husband or not. It has been alleged that the husband of the petitioner had died on 12.6.1997 and thereafter, the petitioner started feeling the need of financial assistance and, as such, she made many representations to the respondent- State, including respondent No.2 to grant assistance to the petitioner being a widow of a Freedom Fighter. 3. It has also been alleged that the petitioner initially was made to fill up the forms with regard to pension under the 'Swatantara Sainik Samman Pension' Scheme, which is a Central Government Scheme, however, nothing fruitful could be done and thereafter also when the petitioner kept on writing regularly, so many inquiries were made and ultimately, it was recommended to grant such benefit to the petitioner. 4. Further, it has been contended that respondent No.2 had also directed the Sub Divisional Magistrate (C), Arki to conduct an inquiry within a week and to establish the entitlement of the petitioner, vide its letter dated 5.12.2009. The Sub Division Magistrate (C) conducted a thorough inquiry, which established that late husband of the petitioner had participated in the freedom struggle and he was even tortured during the relevant time. It has also been averred that the husband of the petitioner never got any financial assistance. The Sub Division Magistrate (C) conducted a thorough inquiry, which established that late husband of the petitioner had participated in the freedom struggle and he was even tortured during the relevant time. It has also been averred that the husband of the petitioner never got any financial assistance. During the inquiry, it was also found that the husband of the petitioner was awarded with a 'Tamar Patra' on 15.8.1972 by the then Prime Minister, Smt. Indira Gandhi. It has also been stated in the inquiry report that the petitioner has not got any financial assistance. 5. It has been contended that the case of the petitioner was recommended by respondent No.2 to respondent No.1, alleging therein that the petitioner be granted all assistance, which is granted to the family of the freedom fighters, vide letter dated 16.2.2010. Although a period of more than four years has elapsed yet nothing has been heard from any quarter and the petitioner has been deprived of her lawful entitlements. 6. It has been contended that the husband of the petitioner was the freedom fighter and this fact has been acknowledged by the State Government so many times. However, the reasons best known, the husband of the petitioner never availed any financial assistance and it seems that neither he had ever applied for such assistance. It has been submitted that the petitioner was in dire need of such assistance, so she started communications with the respondents. It has been alleged that the petitioner started communication with the respondents for the last 17 years, but apart from the recommendations, nothing has been done. 7. It has also been contended that though the matter was dealt with at various levels and once the recommendations were made by respondent No.2, it was incumbent upon respondent No.1 to have acted and granted the benefits in the shape of financial assistance, whatever is provided under the Scheme to the petitioner. 8. Respondent No.1 filed its reply. Respondent No.2 also filed its separate reply. 8. Respondent No.1 filed its reply. Respondent No.2 also filed its separate reply. In the reply, respondent No.1 has submitted that as per the 'H.P. Swatantara Sainani Samman Scheme, 1985 (hereinafter referred to be as the 'Scheme'), for the grant of financial assistance by the Government of Himachal Pradesh to the Freedom Fighters of the State, notified in the year 1985, any person, who claims himself eligible for financial assistance, has to apply on the prescribed proforma to the Sub Divisional Magistrate of his/her area, who after verification of the particulars, shall submit the same to the concerned Deputy Commissioner and thereafter, the Deputy Commissioner forward the application to the State Government with appropriate recommendations, which are placed before the Sub Committee of the H.P. Freedom Fighter Welfare Board and the Committee after considering the same, recommends it to the Board for confirmation. It has further been submitted that the petitioner was never declared Freedom Fighter by the Government under the "H.P. Swatantrata Sainani Samman Scheme, 1985", because the husband of the petitioner did not apply for any financial assistance, as per the provision of the said Scheme, indicating therein the sufferings faced by him during the freedom struggle movement and submitted the proof of his confiscated property, imprisonment, as well as, reasons for remaining underground. The replying respondent has denied that the husband of the petitioner was Freedom Fighter. It has further been stated that award of giving Tamra Patra is not the criteria for awarding Freedom fighter status under the State Scheme and giving the Tamra Patra was the Scheme of the Centre Government and not of the State Government. Had the husband of the petitioner could applied for declaring him Freedom Fighter, he could have declared as Freedom Fighter, if found eligible by the State Government and got sanctioned Samman Rashi under the State Scheme. It has been denied that the husband of the petitioner had submitted any representation to respondent No.1. However, it has been admitted that the case of the petitioner was received in the office of respondent No.1, on 16.2.2010, in reference to her application submitted to the Deputy Commissioner, Solan. It has been denied that the husband of the petitioner had submitted any representation to respondent No.1. However, it has been admitted that the case of the petitioner was received in the office of respondent No.1, on 16.2.2010, in reference to her application submitted to the Deputy Commissioner, Solan. Respondent No.2, in its reply has also submitted that the husband of the petitioner was never declared, Freedom Fighter, by the State Government, under the Scheme, because he had never applied for any financial assistance, indicating therein the sufferings faced by him, during the freedom struggle movement and has not submitted any proof of confiscated property, imprisonment and the awarding of the Tamra Patra to the husband of the petitioner, is not the criteria of the Scheme, meant for the Freedom Fighter status, as giving of these Tamra Patra was the Scheme of the Government of India and not of the State Government. Further it has been submitted that the petitioner has made concocted story just to derive undue benefit. Thereafter, supplementary affidavits were also filed by the respondents separately. In the supplementary affidavit, respondent No.2, has submitted that on receipt of letter dated 14.1.2013, the replying respondent referred the matter to the Sub Divisional Magistrate, Arki on 26.11.2014, to enquire into the claim made by the present petitioner and to report on the prescribed proforma for grant of financial assistance by the Himachal Pradesh Government to the Freedom Fighters of Himachal Pradesh. The Sub Divisional Magistrate, Arki, District Solan, H.P., also submitted his report mentioning therein that Gulabu Devi (petitioner) could not produce any documentary evidence in support of her claim that her husband was a freedom fighter or he was jailed during the freedom movement. Respondent No.1, in his supplementary-affidavit, has submitted that, after examining the case of the petitioner, it was found that the petitioner being not covered under the said Scheme. Further, it has been found that the petitioner has failed to prove or provide the record or documentary evidence that the husband of the petitioner had ever participated in the freedom struggle and Prajamandal Movements, undergone imprisonment or remained underground. It has been submitted that the award giving Tamra Patra is not the criteria for awarding Freedom Fighter status under the State Scheme, as giving these Tamra Patra was the Scheme of the Government of India and not of the State Government. 9. It has been submitted that the award giving Tamra Patra is not the criteria for awarding Freedom Fighter status under the State Scheme, as giving these Tamra Patra was the Scheme of the Government of India and not of the State Government. 9. Heard learned counsel for the parties. 10. Learned counsel for the petitioner has argued that the petitioner is an old lady and is in her 80's and is being denied for the benefits under the Scheme by the respondents without any reasons on one pretext or the other. On the other hand, the learned Additional Advocate General has argued that the petitioner could not establish that her husband was Freedom Fighter and even by their last letter, which is annexed with the supplementary affidavit, dated 7.1.2015, the petitioner has been asked to send her application along with all other documents, which she has failed to produce. So far as the 'Tamar Patra" issued to the husband of the petitioner on 15th August, 1972, is concerned, there is no dispute. A copy of the same is also found on the record. It is also on record that the Deputy Commissioner had asked the Sub Divisional Officer (C), Arki to conduct an inquiry and give his report, which was forwarded by the Sub Divisional Officer to the higher authorities on 24.7.2012, wherein he has stated that late Sukh Ram, who was the husband of the petitioner and son of Narayanu, belonged to the family of the freedom fighters and his family has not received any assistance. He has further stated that Sukh Ram had expired on 12.6.1997 and that the widow of the freedom fighter Gulabu Devi is entitled for the help from the Government and sent his report for further examination. Now, this is the report which is given by a Public Officer, while discharging his official duties. 11. The next question, which arises, is with regard to delay and latches. It has been alleged that the husband of the petitioner had expired on 12.6.1997. Admittedly, the husband of the petitioner never claimed any assistance from the Government being freedom fighter, however, the Scheme, which is annexed with the reply of the respondents, shows that the widows of the Freedom Fighters are entitled for the benefits. It has been alleged that the husband of the petitioner had expired on 12.6.1997. Admittedly, the husband of the petitioner never claimed any assistance from the Government being freedom fighter, however, the Scheme, which is annexed with the reply of the respondents, shows that the widows of the Freedom Fighters are entitled for the benefits. The Scheme, under reference, provides as under:- "(ii) Spouses of such freedom fighters will also be eligible for this assistance under the scheme provided she/he has not re-married after the death of Freedom Fighter, and the freedom fighter would have been eligible for this financial assistance had he/she been alive." 12. Now, the petitioner is alive and not re-married, so, she is entitled for the financial assistance, as per the rules and the action of the respondents in not granting financial assistance cannot be upheld, simply for the reason that she has not applied for the financial assistance till the year 2010. 13. In view of the above facts and circumstances, it is ordered that the respondents will provide financial assistance to the petitioner under the updated Scheme dated 30.4.2005, called "SCHEME FOR THE GRANT OF FINANCIAL ASSISTANCE BY THE GOVERNMENT OF HIMACHAL PRADESH TO THE FREEDOM FIGHTERS OF HIMACHAL PRADESH" from March, 2010, when the application of the petitioner was sent/recommended by the authorities below. 14. Consequently, the writ petition is allowed in the interest of justice and consequently the respondents are directed to provide financial assistance to the petitioner from March, 2010, when her application was sent/ recommended by the authorities below. However, in the peculiar facts and circumstances of the case, parties are left to bear their own costs. 15. All pending application(s) if any, also stand(s) disposed of.