,•{, •fSSSi','^ ;'!"'i.-'"^ ftSts, ^°:-'' V 'i J/;? 'w..:" "<:41%s' ,'^y AEA ^•/•o? HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 263 of 2001 PETITIONER : Brijlal Sharma. VERSUS RESPONDENTS : Union of India & Others. (B*:nii»"t;!t; lllB'^'.?';^^E; Post for pronouncement of the Judgment and Order on ^/01/2009 Sd/- Satish K. Agnihatn Judge Petitioner HIGH COURTOFCHHATTISGARH: BILASPUR Writ Petition No. 263 of 2001 Brijlal Sharma, S/o. Late Shri Asharam Sharma, aged about 73 years, (Agriculturist), R/o. Qtr. No.11, Sahkari Marg, Choubey, Colony, Raipur (CG). Resporident s Versus 1. Union of India (Bharat Sarkar) (through: Ministry of Home Affairs, Freedom Figh'ter's Division), Loknayak Bhavan, Khan Market, New Delhi 110003. 2. State of Chhattisgarh, through the Secretary, Department of Home Affairs, D.K.S. Bhawan, Mantralaya, Raipur. 3. The Collector, Raipur, Gollectorate Premises, Distt. Raipur. (Writ Petition under Article 226/227 of Constitution of India) SB: Hon'ble Mr.Satish K. Agnihotri, J. Present: Mr. A.K. Tiwari, counsel for the petitioner. Mr. S.K. Beriwal, Sanding counsel for Union of India/respondent No.1. Mr. A.S. Kachhawaha, Deputy Advocate General for the State/respondent No.2 and 3. JUDGMENT & ORDER (Passed on this f 1 day of January, 2009) tliaffiiff 1) By this petition, the petitioner seeks a direction to the respondent No.l/Union Qf India to grant Swatantrata Sainik Samman Pension (for short, "SSSP") under the provisions of Bharat Sarkar Sainik Samman Scheme, 1980 (forshort, "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 'a^ceisy ttt'nSSS E;'%.?:''''"'&K?'tic'' 3) scheme namely Swatantrata Sainik Samman Pension Scheme, 1980 was introduced with effectfrom 1-8-1980 (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 freedom fighter and duly recognized by the State of Chhattisgarh. The petitioner is receiving freedom fighters pension from the State Government under M.P. Swatantra Sangram Sainik Samman Nidhi Rules, 1972 (for short, "the Rutes 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 lasf dafe 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. T 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 was only 13-14 of his age during the freedom movement which creates doubt that warrant 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 ll'fl ';KS1 UJliJI '• ^t^sli 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 9 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 teaving 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 i|lip:'F7DF"B BSSSElsK^ p aseo ui sqiuoiu esjq) 0^ paonpsj SGM sqiuoiu x\s p lueLUSjinbsj lunujiuiuj SL|I pue pe^ipouu sem uoisued JQJ euaiuo AiiiiqiBiie 'aiuoqog 9L]} ui IBL|I iiaiqns p|noM eipui ^o uoiun/i.'ON luspuodssj 9i|l jo^ Buuesdde lasunoo peujee] '|BMuag •»'s 'JIAI 'efluoo jaj •siuii pequosejd 341 uiqiiwv epeuj 'uoiieoiidde p siep 34} ujoj^ psye L|I]M UQisusd 84} j0 ysusq SL|l 01 pSffllUS Sl J9UO!l!}9d 81)} 'snqi -3013403 sqi p pafqo pue suoisiAOjd aqi }suie6e pue aiqBuosesjun '^iejiiqje si jauofiiisd 94) y) luiep siiuo uoipsfej jo^ |,'0|\| luepuodsaj e^ Aq pau6isse suoseej aijl •uoiteoyuoA pue uo!ie6tisaAui snp euop sei) stuaifos 8L|i japun uoisuad 10 luejB jo^ uoiiepusaiLuooej 941 6u]>]ELU sjo^sq IUGIUUJSAOQ sieig SL|I -jndiey 'soiioj io iu9pusiuusdn9 9141 Aq penssi (^l./d 9-inxsuuv) sieoyiyeo sqi Aq peAOjd si }\ se oyVN 1° sseo e si II 'sjeeA eAy ueq) sjoai joi lusLuuosudLui suoBjspun peii OL|W 'y>\d psuituqns peL| uBeg \e~\ ue6e|A| UMS 'sJOiu jo sjeeA SAy ises| ie joi lueiuuosuduu! suo6jspun pei) oqm JSiqBij. Luopaaj^ lueuiiua Aq penssi e^eoijipso e Aq paqsiiqeise eq ueo pe^ 04) IU9A9 }eq} ui 's|qe]]BAB lou eje spjoosj tuaujujeAog sq^ ^1 leqi sspiAojd A||eoyp9ds 9Luei|39 81)} ;o (g)(q) 6 ssneio 'oyVN .1° toadsaj u[ •Aj}unoo ai|i p souiAOJd jejeg '§ 'd'O p sieis SIILIAAISJB eq} U! jndiey puisiQ sqi 10 iJed e sem /(ousniiisuoo punaiBsei.|B|/\| se'jndiBy tO!4S!a''s'! IOUISIQ SLUES 9i)i oi s6uo|aq 'Aouaniiisuoo puniuBsei4e|/\| LUOJ^ iU9Lue',]jed y) jaqLua|fi| e SBM oqm 'u6eg ]e-i ueBe^ uqs Pue lUsiuujeAOQ eieis SL|I Aq psyusA SBM uBBg [B-I ue6B]/\| uqs Aq penss! o»cl •psieouqe^ jo paBjoj. jo suinusB iou SEM jayi.lJeo e Aq panssi si o>id leW punojB gqi uo pepsfej lou SB uoiieoiidde 341 'sssieseq si 'IOUISIQ SLUES eqi 01 Buo|sq lou ssop 94 IBLII uGeg |e~| ueBei/\| uiis 10 (,,0>|d,, 'VOLIS (fr 'm»w ^y if ^'sgSaS't. 1 I, "^'as^^ | ^ .^,,^// '^^g^'" /s^ .^9'^y "•<aS!3SSS!!y ^tJ^S^t^ 5) women and SC/ST Freedom Fighters. In case of other Freedorn Fighters, it was made minimum six months imprisonmenV abscondence/internmenVexternment 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. If the records are not available, the requirement is the certificate from NARC from the State Government and PKC from a prominenf 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 detentionorder was issued against him but could not be served. Learned counsel would further subrhit 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 Lat 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 ctear ^-^^-^-_;^@.-^^-- Ksial'ft ^t"^""~""'^ thatthe petitioner was involved in students' movement and had gone underground during thefreedom movement. Shri MaganLal Bagri in his certificate had not stated any reason for the pefitioner'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 AdvocateGeneral 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. It is evidentthat the Government of India specifically framed a scheme namely Swatantrata Sainik Samman Pension 1972 thereafter Bharat Sarkar SainikSamman 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: (4 ) ^-T T1T5T t ? ift^FTT ^ SIEfrT WTfH ^RFT Tp3p Wt urr^ ^ ITOtuR c& f^P?, 'Wd'^cll '?? srf^r t - 7iK a» it yun u*hK:; -^ l'lk ^. JSQ. ^. 'I^S. ^1*M^ h^l^ 112. [ JX l&h iMblr j^al^. t?lpii^ ^1*11 IA& i^s ia is±i11413 y^biS ^iy t^jtP. ^fc (13-) 1 Ua IttkJS lthi£^ b& ysUA InM* ^ j"M J^US Ut ^kK ^i JJt Pyh" ^fe fe) 1 ys ^it ^ fe^ifcys ^t^ ^uz ys ^k ^fe j^ia Jayfc ^. l^. ItUt ^. ki^ue lui&pw. pyhi^. yi^iy i->yte> ^^ (ti) 1 ^3 ^IS ^ Va. ^k 3& Jg(J2iS ^fc bmtfeay/^yiik s^. y Ite lh-l> Ih'i^J pyictoy ^. ^J^ ^hte Ui. Ue Uiii- lEit- ^-^^t* ^ 2A yite ^l^ Pyho ^fe (li.) . I lt6 US^ j^f. P(hlU &-^h [ Ihi Ifr^ Ihty ^.11" lA^lte I* ^-^M^t- (Jt>^l"j (g) 1 ^ ^h. ^12. llnhlh \f >\t^>h hl^) * ^•lbS'*h ^.ky Ih. y.lP'th?,y ^b^p. (g) VB. 'UB yau^K nyijs. ^12. (i.) ^ ^ia° 'ja iSis. pifyfc. tb^ OjriC t|3ta| ? ^ (-(St< aa. ^a J^yts ^fc 1 ll^t,·llI^ it-y ^cfe t-1f3bho j^ llnH. ?ll^J * ^l^lttiy fa|bte |* IBIclh y> t*l(;h (fr) JkJ^ ^. hS^ i& UaBL ^k ^fe j^ laP-Mf ^ J^jteK b^UiAUsJ^ ^ ^ilh. ^a. J^ ibk IM^SP 9 ) (h|^ hi^W. klln^h tt> InMby \f pklk l*>l.tj (g) I lltft'lln ibltt ^ It^^J I* 11"^ *yw (^ ^ik iiAUaUi. ^fc y^k ifeji (z) 1U1± UE^ ^fc 15^ ^ l^lsM^t- Ui3U/* ilS^llft * ^lctitejlM hISliL (|.) ln?.(b(])aW. 1 ^ ItilL I&^ &Sfe (-(?h kyi ^. 086I.-8-1. ^te j§|y& h<fe ^L iffe ^fc liai^ *yi^ib ^fc i^ ^ ^ m^Ui ^fc ^ioji h i*>ttik * ihyi^i^ ipi^pw^ * P]II" uiijb.^i®^ jiEU^h. (a) 1 ^ |j>l* IlTl^ j^B. ^lsMnt- 'P(^ ^SI^ y Wlh. ^13-t» bjh' ^.|3 Islh * ^l»h B^. ^ (•Srbh'^us) ^tUe Pt-ifil^ ^^ ptipft. ^h l ^ i^i^ il&l^ ^fe. J^ ^fe y^±aa ksfe ^ hife i^ jj^. ^ ti^. SsSt ^h ^. l^U&US t-H-^ (<fc) *!S3'-^ //^\ y 1% • ^ fcaassaak. S ^S'StSSSS''. S ;! i ^ ^-- .^v.^ <^ '•VVff'^ .^..-.ffl^' ,|!»s!- pei) oqm 'iusujeiiJBd p jsqiu8|/\] X3 'uBeg |B-] UBBB|/\| Aq penssi a)eoyi)jso o>|d L|i]M6uo|B uoifBoiidde ue psuiujqns jsuoitited eqi (oi. I IS^lifi ^ 1-193 112: ^* W>IR-^te K- IbH- 'lk^lK- lt> ^h.^ Ih ^* J;SL|£>. J^. l^htliL' (l3.) (l.- Saiyyh lc^ ^S^Ue) ^ j^h l^. hl^ ^. t^laK: S^S ^Vl-P' Ih jab b.Jh h.M> ^jS-l^ l^h InlkK ^. jh.yit-g. IP^pfcrit IS»RK 'lp [3 ^ hsi^hp' ?']*y ^.1*?.^ yh. 1 h^jlb. ^> t^^V> ^1*S *y^llftK [3 *h jA (» kPjr^'h * (h.^l^ Ug^ l^lt-l.;* IPI^PW^ (-.Ih l--l|n jP(t>^>l^lkK j+ yM[f * ^M-lcteiy M&K: l^-lsMn^ h.|^lhri< Itel^ |h'yi^g> IPI&pW- . iiitl^it (g) ] InlkK (jr\^IW.b (bMcbAJ'K te^e ^. UE. i^iie ^2. i^^ittoy ^3lb ih. [j»-teMn^ te^uA (l.) : t-M.Ktaiy IbteK? Ih. 1^-bMnt- t2^1& (it) 1 j^y^h. J^ <hv> ta]t>K> sfeigjie (T^P' ui. ^. b.1h hW> ^j3-l"J l&h InlkK ^; (h.yit-^ lUISUM' (-.Ik ^lln ^U |3 t- tsl*>hPt ^•l*y y.lcfeM^ ^(Jl (^) 1 .(^ 2lk 2l^ i^US ^ yfteMn^ Ih. (3 lhl> lh.cy ^y^ hl^S ^y ^ (-Ib^* MU(h>.IJ |* ^F\ Ih ^lbS-tteh ^S^ kH-lTj l&h InlkK y"NWti ^W K> N^lfc * M*M^ 1 h^\t!lt^ t> ^* Phjl^ Ifal^hffi (I.) - ^L V\'h}{t ^ (&) (Saiyyh i^ ^tlth k&J^lfi) ^ B>(«UF» |cb |q]bK? | V>^ h^lij (l&h InlkK ^^-^"ty I*) Ith InlkM l^ ^g^. ^fc. JaUA 'feit. ^. h^bK> Ik^ t-lhiy Ih. h^bl^ bH.^ t.1hpb (i Ujtey [* ^Py k ^h InlhK J^ M*M^ h.^l^ Ih. ?^-l"Jtt IPiy 'ydtfc^lS I^ iy§^ ^ue |}»-^Mnt- | i^. (cfc) I ^tfc D'&^K '[3 1->|3 ^fll^ |^ ln^ll»b ugytOjt^y 'iji^Ufi - (h-aift fii^ue) l ^fe ay ^i& j&i& (6) jspun se sspiAojd SLuaqog 34^0 (6) ssneio (6 1 ys ^it. js SiEt h? ^* jahi^ ^. ^K>11» 1»;?)]5J y>H-l"J I. *yi(ti ptiiA. J+B.S 1 |te ^l> |ji lt"K> ^fe ]^ji ^h ^. liltt ^. ht^. ^. ^U&US ^fe lyjb ^^. iii. ys ytk ^ ^b ii^a tjffrp uz. ys ^ii ^ 'f^tf ^l>[b tfi i^bM^t- Itz. t-l^[b ^. ^ih^ [*H.I"J ^ ^Jho SJ2. b|^lf; (fr) all('l"!"i»«n.:" 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. In 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 Raipurunder 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 v. Union of India & anofher , 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 AIR 1990 SC 746 M 10 k'ife&-;;^. :^;&:s'^:.^g- 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 satisfy the requirements of clause (e) of the Scheme.... 11. ...There is neither justice nor grace in the respondents putting forth such objections. No ohe 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 v. 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 claimand 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 v. Union of India and others , dealing with a case where the Union of India r,ejected 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. It has to be kept in mind that millions of masses of this country had participated jn 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 (1993) Supp (3) SCC 2 AIR2001 SC 3883 '•S'f-.^.^-dB^V^ l^ .a sa<!s J.:f t?5t»B-,.;T<".%¥{:%! ¥* ^^*^%^-. n '^.^SSsa^'-S;^ '^ ^tf's a»S •-'ftwJ 11 15) 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 mind 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 objpct 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 affront 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 irrespective 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. 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 ;J^;L^^'^.'^-^^ '•^t!s"' .&.~"£'f'^' •.•^'•s^: •<.' //fs% "% / &..,,.„.,.,. ": 1 ' V|.s»^,, 'y'" .;•"';'' ^s^" 12 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 asto costs. Sd/- Satish K. Agnihotri Judge Raju/ AmiV Thakur :stiififti!i •.^•:;'-rus''">:: 1L