IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 828 of 2008-D Reserved on: 02.11.2011 Decided on: 16.12.2011 Kailasho Devi, wife of late Shri Majnu Ram, Resident of Village and P.O. Marhana, Tehsil Ghumarwin, District Bilaspur, H.P. …Petitioner. Versus 1. Union of India through its Secretary, Ministry of Home Affairs Freedom Fighters Division, Lok Nayak Bhawan, New Delhi 2. State of H.P. through the Chief Secretary to the Government of Himachal Pradesh, Shimla …Respondents. Civil Writ Petition under Article 226 of the Constitution of India for issuance of an appropriate writ, order or direction to the respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioner: Ms. Vandana Kuthiala and Mr. Vijay Bhatia, Advocates, for the petitioner. For the respondents: Mr. Janesh Mahajan, Central Government Standing Counsel, for respondent No. 1. Mr. Vivek Singh Thakur, Additional Advocate General, for respondent No. 2. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- Deepak Gupta, J. The petitioner has prayed that the Union of India be directed to declare her husband, Shri Majnu Ram, to be a Freedom Fighter eligible for pension under the Freedom Fighter's Pension Scheme, 1972 and she being the widow be held entitled to pension under the scheme. She has further prayed that this pension and the arrears of pension may be paid to her alongwith interest. 2. To appreciate the rival contentions of the parties, it would be appropriate to refer to the relevant provisions of the Freedom Fighter's Pension Scheme. Under Clause 4 of the Scheme, a person who had suffered a minimum imprisonment of six months in the mainland jails before independence is eligible for grant of pension. In case of ex-INA personnel, they would be entitled to pension if the imprisonment/detention was suffered outside India. In case of women and Scheduled Caste/Scheduled Tribe Freedom Fighter, the period of imprisonment is three months. Further, a person who has remained underground for more than six months is also eligible for grant of pension provided the period of internment/externment was six months or more. Clause 6 of the scheme lays down the manner in which an application for grant of pension has to be submitted and as per the scheme, the application has to be submitted through the Chief Secretary of the State concerned. Under Clause 10, the State Government in consultation with the State Advisory Committee has to verify the entitlement to pension and if the person is found eligible, pension may be granted. -: 3 :- 3. The most important issue is how to prove the claim of imprisonment/detention etc. In the present case, we are concerned with internment or externment. Clause 9(c) of the policy, which is relevant for our purpose, reads as follows: “9............. (a).............. (b)............. (c) INTERNMENT OR EXTERNMENT (i) Order of internment or externment or any other corroboratory documentary evidence. (ii) Certificates from prominent freedom fighters who had themselves undergone imprisonment for two years or more if the official records are not available.(Annexure II in the application).” 4. Shri Majnu Ram applied for the pension on 12th January, 1983. In the application filed by Shri Majnu Ram, he had stated that he remained underground during the period October 1946 to October 1948. He had also alleged that during this period, the police had arrested him on a number of occasion. This application was rejected by the Central Government on the ground that the same had not been filed within time. I have perused the original record and I found that alongwith this application, no other supporting evidence had been filed. This application was rejected on 16th March, 1983 only on the ground that the same had been submitted after the prescribed date. Shri Majnu Ram did not agitate the matter any further and kept silent. It appears that he expired in the year 1990. Admittedly, Shri Majnu Ram was declared to be a Freedom Fighter by the State of Himachal Pradesh on 13.06.1996 and was granted pension payable under the State -: 4 :- Scheme. He was also issued the certificate in recognition of his services as a Freedom Fighter. 5. Thereafter, on 18th March, 2002, the applicant Smt. Kailasho Devi, w/o Shri Majnu Ram sent a letter to the Secretary, All India Congress Committee, New Delhi with a copy to the Minister of Home Affairs, praying that Freedom Fighter's Family Pension under the Central Government Scheme be granted to her. On 5th April, 2002, the Union of India responded to be letter of Smt. Kailasho Devi and requested her to file an application in the prescribed form alongwith necessary documentary certificates. Thereafter, Smt. Kailasho Devi filed another application on 5th April, 2002, under the Swatantrata Sainik Samman Pension Scheme. In Majnu Ram's application, it had been stated that in the year 1946, Raja of Bilaspur had externed him outside Bilaspur on account of his Praja Mandal activities. He also stated that he had been arrested by the Police on a number of occasions. However, in the application filed by his widow Kailasho Devi, all that was stated was that by verbal orders of Raja of Bilaspur, he had been externed. No corroborative evidence was filed and it was only stated that corroborative evidence has been filed before the State Government 6. The corroborative evidence relied upon by the petitioner, which is on the record of the Union of India, is a certificate issued by one Shri Sukh Lal, who is also receiving pension under the State Scheme, in which he has stated that Majnu Ram was externed from Bilaspur State from 1946 to 1948. -: 5 :- Alongwith the writ petition, the petitioner has also filed a document, Annexure P-9, issued by one Shri Bhagat Ram, who was also the holder of the Freedom Fighter's Pension in which it is stated that Shri Majnu Ram was externed from Bilaspur State/remained underground for 24 months during the period 1945 to 1946 on account of his participation in the Movement during the freedom struggle. It appears that this is a copy of the certificate submitted when pension was sought under the State Scheme. Therefore, now there are two different versions on record. As per Majnu Ram, husband of the petitioner himself, he was externed from 1946 to 1948. This is also certified by Sukh Lal. But the certificate issued by Bhagat Ram is totally contrary to it and according to him, Majnu Ram remained underground during the period 1945 to 1946. Therefore, there are two contradictory certificates before this Court. 7. As per clause 9 (c) (ii) of the Scheme quoted hereinabove, the certificates should be from prominent Freedom Fighters, who have themselves undergone imprisonment for two years or more if the official records are not available. In this case, the official records are not available. No order of internment or externment is on record. There is no material on record to show that the persons who have issued the certificates in favour of Majnu Ram had themselves undergone imprisonment for two years. 8. Ms. Vandana Kuthiala, Advocate, contends that these very certificates issued by Sukh Lal and Bhagat Ram should be considered to be the corroborative documentary evidence. In this -: 6 :- behalf she has relied upon certain judgments of this Court. In CWP No. 540 of 1990, titled Lekh Ram versus Union of India and another, decided on 11.05.1993, a Division Bench of this Court held as follows: “Under 1972 Scheme as also 1980 Scheme, the act of internment and externment could be proved by the actual order of internment and externment or in absence thereof by any corroboratory documentary evidence. In the absence of non-availability of official record, the same could be proved by production of certificate from prominent freedom fighter(s). In case the order of externment was passed orally, as has been in the instant case, there is no question of the act of externment being proved by production of copy of an order. An oral order obviously cannot be proved by a written order. Obviously the same could be proved by other corroborative evidence. The certificate of Deputy Superintendent of Police would be a relevant piece of evidence and can be considered to be a corroborative piece of evidence. Similarly when the Scheme do provide for accepting the certificates of prominent freedom fighters having suffered imprisonment of two years or more, there is no reason why certificates appended by the petitioner alongwith application could have been discarded.” 9. Another judgment relied upon by the learned counsel for the petitioner is CWP No. 539 of 1990, titled Prabhu Ram versus Union of India and another, decided on 29.12.1994. In my opinion, these judgments have no application to this case because there the Court was dealing mainly with certificates, issued by Shri Kartar Singh, Ex. Dy.S.P. of Bilaspur State, who was the Superintendent of Police in the Bilaspur State and had certified that the petitioner had been externed. 10. The contention of Ms. Vandana Kuthiala that even the certificates issued by other Freedom Fighters, who may not have undergone two years' imprisonment, can be considered to be the corroborative evidence is not well founded. When the Scheme -: 7 :- requires an assertion to be proved in a particular manner, then it has to be proved in that manner alone. No doubt, the Freedom Fighters who have sacrificed a lot for the country need to be recognized and appropriately rewarded, but at the same time, one cannot be oblivious to the ground reality that day in and day out a number of cases are coming before this Court where persons, who are not entitled to such benefits, claim the same. 11. No doubt, Shri Majnu Ram was a Freedom Fighter since he was recognized as such by the State Scheme. However, under the State Scheme even a person,who had been externed for a period of less than six months could be termed as a Freedom Fighter, whereas under the Central Scheme, only those who were externed for more than six months could be termed as Freedom Fighters. In fact, in a number of cases, this Court decided that certificates issued by the police officials or member of judiciary of Bilaspur State, who were aware about the persons externed, could be accepted as corroborative evidence. However, the scheme requires that if the Freedom Fighters themselves are to give the certificates, then only those Freedom Fighters who had suffered imprisonment for a minimum period of two years in jail in connection with the freedom struggle and whose area of operation was same as that of the applicant were eligible to give this certificate. In the present case, there are no certificates of such Freedom Fighters. Therefore, the decision of the Union of India rejecting the application of the petitioner cannot be said to be illegal. -: 8 :- 12. The petition is therefore dismissed. No costs. (Deepak Gupta) Judge December 16, 2011 (rajni)