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Himachal Pradesh High Court · body

2017 DIGILAW 7 (HP)

Mahanti Devi v. Union Of India

2017-01-02

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT Chander Bhusan Barowalia, J. —The present writ petition is maintained by the petitioner against the respondents praying therein for the following reliefs :- "(a) for issuance of an appropriate writ in the nature of mandamus directing the respondents to declare the husband of the petitioner a freedom fighter and the petitioner be granted pension under the Swatantarta Saini Samman Pension Scheme, 1980 from the date of her application; (b) to quash the order of rejection dated 11.4.2007 (Annexure-PK); (c) to direct the respondents to pay arrears of pension to the petitioner alongwith interest @ 12% per annum from the date of application; (d) to direct respondent No. 2 to decide the application of the petitioner within a period of three months as per the guidelines laid down by the Apex Court in the matter of Mukund Lal Bhandari v. Union of India, reported in AIR 1993 SC 2127 . " 2. The petitioner has submitted that her husband was an active worker of the Praja Mandal Movement, and he earned the displeasure of the Ruler of Bilaspur State and he was externed under the verbal orders of the Ruler in May, 1946, and was threatened that he would be arrested and jailed, if he entered Bilaspur State. The Praja Mandal Movement was also banned by the Ruler of Bilaspur State and the husband of the petitioner could only return to his home in October, 1948 after the merger of Bilaspur State in the Union of India. During this period of externment the petitioner''s husband and his family suffered both physically and financially. 3. It has also been alleged that in the year 1972, the Government of India promulgated a Scheme known as "Freedom Fighters Pension Scheme 1972" with the intention of recognizing the sacrifices made by those, who had struggled for the freedom of the Country. 4. It has been contended that the Freedom Fighter''s Pension Scheme was further liberalized in the year,1980 and re-named as the Swatantarta Sainani Samman Pension Scheme, 1980. Under this Scheme, the benefit of the pension was extended to all Freedom Fighters, as a token of Samman to them and the monthly pension was also increased. Further, it has been alleged that respondent No. 1 later issued a clarification to the effect that certificates issued by the Freedom Fighters, who had suffered two years imprisonment, would be conclusive proof under the Scheme. 5. Further, it has been alleged that respondent No. 1 later issued a clarification to the effect that certificates issued by the Freedom Fighters, who had suffered two years imprisonment, would be conclusive proof under the Scheme. 5. It has further been contended that the husband of the petitioner firstly applied to respondents No. 1 and 2 for the grant of pension on 22.8.1975, but his claim was rejected, being time barred, on 29.9.1975. The petitioner''s husband again represented to the respondents on 27.10.1995, but he did not receive any response from them. It has also been contended that the husband of the petitioner had resigned himself to his fate till the Hon''ble Supreme Court of India removed the restriction of limitation in the matter of freedom fighters. It has been stated that the husband of the petitioner came to know in the end of 1994, Hon''ble Supreme Court of India, had issued directions to the Union of India, in the matter of Mukand Lal Bhandari v. Union of India, AIR 1993 SC 2127 , not to reject application form of the Freedom Fighters on the ground of delay and that it was the duty of the Union of India to identify the persons, who had worked for the freedom of the Country and accord them due recognition and pension in accordance with the Scheme. It has also been averred that the Hon''ble Apex Court has observed in the matter of Mukand Lal Bhandari (supra) that all the applications should be decided by respondent No. 1 within a period of three months. 6. It has further been contended that in pursuance of the judgment of the Hon''ble Apex Court, mentioned above, the husband of the petitioner filed CWP No. 987 of 1998, before this Court, wherein he prayed, inter-alia, that the respondents be directed to declare him to be the freedom fighter and to grant him pension under the Scheme from the date of his application. 7. In reply to the said writ petition, respondent No. 2 stated that the husband of the petitioner had not applied for grant of pension under the Scheme promulgated by the State Government. However, respondent No. 1 did not file any reply to the writ petition. 7. In reply to the said writ petition, respondent No. 2 stated that the husband of the petitioner had not applied for grant of pension under the Scheme promulgated by the State Government. However, respondent No. 1 did not file any reply to the writ petition. In pursuance to the reply filed by respondent No. 2, the petitioner made a prayer before this Court that he would submit a fresh application alongwith original supporting documents to respondent No. 1. Vide order dated 28.10.1996, this Court had been pleased to direct respondent No. 1 to decide the fresh application of the husband of the petitioner, in the light of the decision of the Hon''ble Apex Court rendered in Mukand Lal Bhandari''s case. Further, it has been averred that the petitioner has applied under the State Scheme also on 21.9.2011. However, the husband of the petitioner did not receive the intimation sent by his counsel about the order passed by this Court on 28.10.1996 and due to that he could not apply to the respondents within the time laid down by the Court. Subsequently, the petitioner''s husband visited the office of his counsel after the winter vacation of 1998 and on coming to know about the order passed by this Hon''ble Court, the petitioner''s husband again applied to respondent No. 1, on 20.3.1998, on the prescribed proforma. It has also been averred that alongwith the application, the petitioner appended a certificate issued by Sant Ram, Former Minister-cum-Superintendent of Police, Bilaspur State. According to the policy framed by respondent No. 1, this certificate is sufficient proof under the Scheme of the sufferings undergone by Freedom Fighters. It has been submitted that the petitioner''s husband also submitted an affidavit explaining the delay in submitting his application. In support of his claim the petitioner''s husband also submitted certificates issued in his favour by Narottum Dutt Shastri, Vice-President, Bilaspur State Praja Mandal, Ganga Ram Bhardwaj, Freedom Fighter and Jai Ram, Freedom Fighter, as corroboratory evidence of the sufferings undergone by him. 8. It has further been contended that the petitioner''s husband sent reminders to the respondents, but to no avail. It has also been averred that vide letter dated 6.4.1998, respondent No. 2 asked him to route his application through the Deputy Commissioner, Bilaspur. 8. It has further been contended that the petitioner''s husband sent reminders to the respondents, but to no avail. It has also been averred that vide letter dated 6.4.1998, respondent No. 2 asked him to route his application through the Deputy Commissioner, Bilaspur. Finally, vide letter dated 26.11.1998, respondent No. 1 wrote to respondent No. 2 to verify the authenticity of the certificate submitted by the petitioner''s husband and to furnish recommendations about the eligibility and entitlement of the grant of pension to the husband of the petitioner. It has also been contended that the Deputy Commissioner, Bilaspur, vide his letter, dated 1.12.1998, asked the petitioner''s husband to submit the certificates and affidavit in his office, so that further action could be taken in the matter. 9. It has been contended that before the petitioner''s husband could take further action in the matter, he was shocked to receive a letter dated 8.12.1998, from respondent No. 1, whereby his case was rejected on the ground that the State Government had checked the records, but there was no indication that he had participated or suffered imprisonment in Praja Mandal Movement. It has also been contended that respondent No. 1 requested, respondent No. 2 to verify the claim of the petitioner''s husband and vide letter, dated 1.12.1998, respondent No. 2 asked the petitioner''s husband to submit his documents in the office of the Deputy Commissioner, Bilaspur, for taking further action in the matter. It has been alleged that respondents did not apply their minds at all to the case of the petitioner''s husband, since his case was rejected barely one week after the petitioner''s husband was asked to submit his documents in the office of the Deputy Commissioner, Bilaspur. Further that respondent No. 1 had rejected the case of the petitioner''s husband on false and arbitrary grounds without even awaiting the report from respondent No. 2, even though it is the policy of respondent No. 1 to base its decision on the recommendation of respondent No. 2, which shows that respondent No. 1 had adopted a vindictive approach and had rejected the case of the petitioner without considering the same. So, it has been alleged that such action of respondent No. 1 was in contravention of the law laid down by the Hon''ble High Court, as well as, the Hon''ble Supreme Court of India, which inter-alia amounts to willful disobedience of the judgments passed by the Courts. 10. It has also been contended that the order of rejection was harsh, arbitrary and oppressive and was based on non-application of mind. Further more, respondent No. 1 had acted contrary to its own Policy, where by certification of sufferings by the then Superintendent of Police, is considered a sufficient evidence under the Scheme. Even otherwise, this Hon''ble Court has defined the term corroboratory evidence under the Scheme and has laid down that in the absence official records, certificates from fellow Freedom Fighters would be sufficient corroboratory evidence under the Scheme. It has been submitted that a number of similarly situated persons have been declared to be the Freedom Fighters and eligible for receiving benefits under the Scheme by the respondents, as well as, this Hon''ble Court on the basis of a certificate issued by the then Police authorities and thus the petitioner could not be discriminated. It has been submitted that the petitioner''s case also fell fully within the ambit of the Scheme. It has also been submitted that CWP No. 374 of 2000, which was filed before this Court was allowed on 2.1.2006, vide which the respondents were directed to consider the case of the petitioner afresh in the light of the observations made it and various decisions of the this Court in Prabhu Ram v. Union of India and another rendered in CWP No. 539 of 1990, dated 29.12.2004 , and other such petitions. It has also been submitted that respondent No. 1 was directed to decide the same within six weeks from the date of receipt of the order by the learned counsel for the Union of India. However, the husband of the petitioner did not hear from the respondent No. 1 till September, 2006 and he was forced to serve a legal notice on 23.9.2006 to respondent No. 1. Thereafter, respondent No. 1 replied to the counsel for Union of India on 13.10.2006, with a copy to the counsel for the petitioner''s husband requesting him to send the copy of the judgment to them at the earliest. 11. Thereafter, respondent No. 1 replied to the counsel for Union of India on 13.10.2006, with a copy to the counsel for the petitioner''s husband requesting him to send the copy of the judgment to them at the earliest. 11. It has been contended that the claim of the petitioner''s husband was rejected by respondent No. 1 on 11.4.2007. It has been submitted that after receiving the rejection letter, the petitioner''s husband was thoroughly disillusioned and disappointed and thereafter his health started deteriorating day by day and finally he died on 23.1.2008. Thereafter, the petitioner discovered the record file kept by her late husband regarding his pension claim. It has been alleged that she is an illiterate and domesticated lady and her financial and health conditions are also not very sound. So, on the advice of her well-wishers, she contacted the counsel and wished to file the present writ petition. Therefore, the petitioner, being aggrieved and dissatisfied by the letter of rejection, dated 11.4.2007, she seeks for quashing of the same. 12. It has been submitted that the Hon''ble Apex Court has held that the freedom fighters cannot be expected to produce un-impeachable evidence at the fag of their lives and also the grounds of rejection are in contravention of their own policies. It has also been contended that respondent No. 1 has not even bothered to apply its mind to the claim and that to reject the legitimate claim of the petitioner''s husband on such ground is highly ridiculous and shows the callous, cursory and indifferent approach adopted by respondent No. 1, despite the clear direction of the Hon''ble Court. It has also been contended that this Court had directed respondent No. 1 to consider the case of the petitioner''s husband in the light of the decisions, whereby it has been held that it is the Policy of respondent No. 1 to accept the claims based on verbal orders issued by the then Raja of Bilaspur, if the claimant produces a certificate by the Home Minister/Superintendent of Police/Deputy Superintendent of Police of erstwhile State of Bilaspur. Respondent No. 1 was also directed to consider the case of the petitioner''s husband in the light of various decisions of this Hon''ble Court, however, the action of respondent No. 1 is also highly contemptuous towards this Court as no reference much less consideration has been made to the various judgments passed by this Court. It has also been contended that the order of rejection is discriminatory and arbitrary besides being violative of the fundamental rights of the petitioner''s husband, since he has submitted proof of his sufferings in accordance with the requirements of the Scheme, as well as, the law laid down by the Hon''ble Apex Court. It has been contended that respondent No. 1, as well as, this Hon''ble Court has already granted pension to a number of similarly situated persons, as the petitioner''s husband, on the basis of documentary proof like others and the order of rejection is, thus, liable to be quashed and the petitioner''s husband becomes entitle to be declared as a freedom fighter. 13. Respondent No. 1 filed its counter-affidavit and submitted that the Samman Pension to Freedom Fighters is regulated under the Swatantrata Sainik Samman (SSS) Pension Scheme, 1980. It has been submitted that initially a Freedom Fighters Pension Scheme, 1972, was started from 15.8.1972, which was provided for the grant of pension of living freedom fighters and their families. And to the families of the martyrs. Such Scheme was further liberalized in 1980 and was renamed as "Swatantrata Sainik Samman Pension Scheme, 1980" and under the above Scheme, a person is eligible for Swantantrata Sainik Samman Pension, if he had undergone at least one of the sufferings prescribed in the Scheme (Imprisonment/detention against an executive order/underground sufferings/Externment/internment etc.) on account of his participation in the freedom struggle. Participation in the INA and in the Indian Independence League is also treated as participation in the National Liberation Movement. It has been submitted that, as per the provisions of the Pension Scheme, 1980, any application, who claims any of the above mentioned sufferings, is required to produce documentary evidence in support of his claimed sufferings. Participation in the INA and in the Indian Independence League is also treated as participation in the National Liberation Movement. It has been submitted that, as per the provisions of the Pension Scheme, 1980, any application, who claims any of the above mentioned sufferings, is required to produce documentary evidence in support of his claimed sufferings. It has also been submitted that the claim of the petitioner''s husband for grant of such Pension was examined in accordance with the directions dated 2.1.2006 of this Hon''ble Court, as per the provisions & eligible criteria of Swantantrata Sainik Samman Pension Scheme, 1980 and available documentary evidence, but the petitioner was not found eligible for grant of Samman Pension and his claim was rejected vide orders dated 8.12.1998, 11.4.2007 respectively. 14. Respondent No. 2 in its reply, submitted that petitioner''s husband had applied for the grant of Samman Pension under Swantantrata Sainik Samman Pension Scheme, 1972 to respondent No. 1 in the year, 1975 (i.e. on 22.8.1975), which was rejected as the date of such application had already been expired on 31.3.1974, as per the Scheme of that time. It has also been submitted that the petitioner''s husband had to apply afresh on the prescribed performa for granting him pension under the Central Scheme, namely Swantantrata Sainik Samman Pension Scheme, 1980 for the grant of financial assistance under the State Scheme, namely Scheme for the grant of financial assistance by the Government of Himachal Pradesh to the Freedom Fighters of Himachal Pradesh in pursuance to the directions given by this High Court in CWP No. 987/1996 on 28.10.1996. It has also been submitted that the husband of the petitioner did not apply for the grant of financial assistance/Samman Rashi under the State Scheme to respondent No. 2 till date and respondent No. 2 came to know the fact of making application only on receipt of the present petition. 15. It has been submitted that since the petitioner is a resident of District Bilaspur, H.P. and had to submit her claim through the SDM, Sadar, Bilaspur, who after verifying the contents of the claim, has to send it to the Deputy Commissioner, Bilaspur. On enquiry, it was found from the Deputy Commissioner/SDM, Bilaspur that the petitioner had submitted her claim to the Sub Divisional Magistrate, Sadar, Bilaspur, under both the Schemes, who had made enquiry. 16. On enquiry, it was found from the Deputy Commissioner/SDM, Bilaspur that the petitioner had submitted her claim to the Sub Divisional Magistrate, Sadar, Bilaspur, under both the Schemes, who had made enquiry. 16. Respondent No. 2 had also filed a supplementary-affidavit in compliance of the directions issued by this Court, dated 30.7.2012, in the present petition in reference to the application submitted by the petitioner for State freedom fighters pension. It has been submitted that the State Government had framed the Scheme in the year 1985 for the financial assistance to the eligible persons, who claim to be freedom fighter due to their participation in various freedom movements of the India. According to the procedure prescribed in the said Scheme, all eligible freedom fighters who are alive and in case of death their spouses who had not remarried after the death of freedom fighter would be eligible for financial assistance under the said Scheme. They have to apply on the prescribed form to the S.D.M. concerned indicating therein the sufferings faced by them. It has further been submitted that the State has come to know of this fact only when a copy of the petition was received from the Advocate General''s office on 28.12.2011. It has been submitted that after coming into notice of the fact that the petitioner had applied for financial assistance under the State Scheme, 1985, the matter was taken up with the Deputy Commissioner, Bilaspur and Sub Divisional Officer, Sadar, Bilaspur to intimate the whereabouts of the application submitted by the petitioner, however, her case has not been recommended for grant of pension. It has also been submitted that the applicant/petitioner has not indicated the sufferings of her husband made while he participated in the Prajamandal Movement of the Bilaspur State against Col. No. 12 of the Form meant for applying for declaring freedom fighter and sanctioning financial assistance under the State Scheme. It has also been submitted that the applicant/petitioner has not indicated the sufferings of her husband made while he participated in the Prajamandal Movement of the Bilaspur State against Col. No. 12 of the Form meant for applying for declaring freedom fighter and sanctioning financial assistance under the State Scheme. Thereafter, the Form was sent back to the Deputy Commissioner, Bilaspur to get the same completed from the petitioner, but the Deputy Commissioner, instead of getting the form completed from the petitioner reiterated his stand taken in the earlier letter dated 7.3.2012, due to which the original application form was sent with a direction to the petitioner on 17.9.2012 and with a request to get the same completed by indicating the sufferings of her husband for taking decision to declare her husband, as freedom fighter, after his death and sanctioning Samman Rashi to the petitioner. However, the petitioner did not return the application form back after doing the needful therefore, it was not possible to take further action in the matter in the absence of the completed application form. 17. It has been submitted that after recommendation of the concerned Deputy Commissioner, such applications are placed before the Sub Committee of the Freedom Fighters Welfare Board whereafter, it will be placed before the State Level H.P. Freedom Fighter Welfare Board alongwith the recommendation of the Sub-Committee, for final decision and presently both the H.P. Freedom Fighter Welfare Board and Sub-Committee are under process for re-constitution, which may take some time and under the Scheme, no other authority is competent to take decision on such applications/claims. Therefore, respondent No. 2-State prayed for the grant of 6 months to comply with the directions given by the High Court to decide the case of the petitioner in the interest of justice. 18. Heard learned counsel for the parties. 19. 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. 20. On the other hand, the learned counsel appearing vice Additional Solicitor General of India has argued that the petitioner could not establish that her husband was Freedom Fighter, whereas the learned Additional Advocate General has argued that the petitioner has not completed Col. 20. On the other hand, the learned counsel appearing vice Additional Solicitor General of India has argued that the petitioner could not establish that her husband was Freedom Fighter, whereas the learned Additional Advocate General has argued that the petitioner has not completed Col. No. 12 of the application form, which pertains to kinds of sufferings faced by the person claiming Freedom Fighter Samman Rashi and to indicate the sufferings faced by her husband and the name of the movement etc. and even by their last letter, which is annexed with the supplementary affidavit, dated 17.9.2012, the petitioner has been asked to send her application along with all other documents, which she has failed to produce, so her husband cannot be held entitled to be declared as a freedom fighter and eligible for such pension under the Scheme framed by the State Government. 21. The next question, which arises, is with regard to delay and latches. It has been alleged that the husband of the petitioner had first applied to respondents No. 1 and 2 for the grant of pension on 22.8.1975, but his claim was rejected being time barred on 29.9.1975. He again represented on 27.10.1995, but he did not receive any response from them. Thereafter, he again filed CWP No. 987 of 1996 for the grant of the pension under the Scheme and the Court directed the petitioner to apply for such relief which now the petitioner has applied under the State Scheme on 21.9.20011. However, stated that the petitioner''s husband did not receive the intimation sent by his counsel about the order passed by this Court on 28.10.1996 and could not apply to the respondents within the time granted by the Court. Thereafter, the petitioner''s husband again applied to respondent No. 1 on 20.3.1998 on the prescribed performa. The husband of the expired on 23.1.2008. The State Government sent the application of the petitioner to the Deputy Commissioner, Bilaspur to get the same completed from the petitioner but the later returned the same as it to the State Government instead of getting the form completed from the petitioner and reiterated his stand taken in earlier dated 7.3.2012, which seems that the Deputy Commissioner, Bilaspur has not discharged duty cast upon him. As per the Scheme of the State Government, meant for the Freedom Fighters of the State, 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." 22. 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 2011. 23. The respondents are required to have taken into consideration the fact that the Scheme provides for financial assistance to the Freedom Fighters and the widow of the Freedom Fighters and it is a social obligation, as well as, the respect to those who have suffered to bring independence to the Country, but the respondents, on technical reasons, one reason or the other, are keeping pending the matter of the petitioner. The record shows that the petitioner has proved on record that her husband suffered externment. The record also shows that the respondents came to know about the fact latest by 01.1.2012, through the writ petition, maintained by the petitioner, but in spite of that, they had not acknowledged the right of the petitioner. In these circumstances, this Court finds that the writ is required to be issued to the respondents to provide financial assistance/pension to the petitioner as per the updated Scheme called "Scheme For The Grant Of Financial Assistance By The Government Of Himachal Pradesh To The Freedom Fighters Of Himachal Pradesh." 24. Needless to notice that the application of the petitioner is pending with the Authorities for the simple reason that she has not mentioned with respect to the sufferings undergone by the husband of the petitioner. Though, it is clear from the writ petition, which is duly supported by the affidavit of the petitioner, that her husband was externed from Bilaspur State in the year 1946 and he returned only in the year 1948, when the Bilaspur State merged in the Union of India. Though, it is clear from the writ petition, which is duly supported by the affidavit of the petitioner, that her husband was externed from Bilaspur State in the year 1946 and he returned only in the year 1948, when the Bilaspur State merged in the Union of India. The other documents on record also show that the husband of the petitioner has suffered in the Praja Mandal Movement. The petitioner cannot be expected to produce the evidence at this tangential stage to prove her case beyond all reasonable doubts. It is a beneficiary legislation and is in fact granting the respect to the Freedom Fighters and the widow(s) of the Freedom Fighters, who have not re-married. It has also come on record that the petitioner has not re-married and also that, as per the Scheme, which has been relaxed from time to time, the petitioner is entitled for the pension as per the relaxation, which has come from time to time, because her husband has suffered externment and sufferings and she has not remarried, at least from the date the last relaxation came i.e. from 1.1.2012. 25. 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, called "Scheme For The Grant Of Financial Assistance By The Government Of Himachal Pradesh To The Freedom Fighters Of Himachal Pradesh" from 01.1.2012, when the respondents got knowledge through writ petition as averred in the reply. So, the respondents are required to be directed to consider and grant pension to the petitioner w.e.f. 01.01.2012 under the Central, as well as, State Scheme, as it has come on record by way of affidavits that her husband has undergone sufferings because of his externment and other affidavits of the Freedom Fighters. 26. In these circumstances also, it is directed that the respondents will grant pension/financial assistance to the petitioner under the Central, as well as, the State Scheme and the arrears will be granted to the petitioner with effect from 01.01.2012. 27. With the above directions, the writ petition is disposed of with no order as to costs. 28. All pending application(s) if any, also stand(s) disposed of.