SCA/1598/1995 of CHHOTUBHAI H PATEL Vs STATE OF GUJARAT on 8 December 1995

ORAL JUDGMENT:

grant of Samman Pension as provided under the SwatantrataSainik Samman Pension Scheme, 1980 which was formerly knownas Freedom Fighters' Pension Scheme, 1972. The petitionerclaimed Samman Pension on the basis of his undergroundactivities for more than six months. Copy of theSwatantrata Sainik Samman Pension Scheme, 1980 has beenproduced by the petitioner at annexure-F to the petition. Acopy of the application submitted by him has also beenproduced at annexure-A to the petition. In support of hisclaim the petitioner filed affidavits of veteran freedomfighters, copies of which have been submitted along with thewrit petition. These are affidavits of Shri JugatrambhaiChimanlal Dave, Shri Kikubhai Jagannath Pathak and ShriMakanjibhai Patel. This application filed by the petitionerhas been forwarded by respondent No.2 to respondent No.1.Along with the affidavits of veteran freedom fighters, thepetitioner further submitted his own affidavit and extractfrom Surat Zilla Sevadal Itihas, letter of Collector, Suratand that of the Government of Gujarat, Sachivalaya,Gandhinagar, dated 17-9-1973.

2. Respondent No.1 vide his letter dated 5-11-1981asked the petitioner to explain about his undergroundactivities, which have been explained by the petitioner videhis letter dated 14-11-1981 produced at annexure-C.Respondent No.2, vide his letter dated 14-5-1985, intimatedthe petitioner that his claim is not acceptable as he hasnot produced satisfactory evidence relating to his claim onthe basis of underground suffering during the freedommovement, and also on the ground that respondent No.1 hasnot recommended the case of the petitioner for grant ofpension. Respondent No.1, on further approach by thepetitioner refused to consider his case on the ground ofnonproduction of record proving that the petitioner wentunderground during the Quit India Movement in August,1942.This has been done vide order dated 23-8-1995. Thereafterthe petitioner approached the office of the Commissioner ofPolice, Surat City, District Superintendent of Police, Surat(Rural) and the Police Sub Inspector, Kamrej in order to getsome record or evidence to prove participation of thepetitioner in the freedom struggle as desired by therespondents. The aforesaid three authorities by theirseparate communications informed the petitioner that theyare unable to provide relevant record proving that thepetitioner had gone underground or that the petitioner hadparticipated in the freedom struggle for independence. Thepetitioner produced the letters of all the aforesaidofficers to the Collector, Surat for doing the needful inthe matter. The petitioner thereafter continued to pursuethe matter with the respondents for grant of pension underthe scheme, but as nothing has been done in his favour he

has approached this Court by filing this writ petition.3. The District Collector, Surat, to whom thepetitioner submitted the certificates issued to him by thePolice authorities, has not given any reply to the same.Clause 9 of the scheme provides for, 'how to prove theclaims'. So far as the scheme which is based on theunderground activities in the freedom movement is concerned,it has been provided that documentary evidence by way ofCourt's/Government's orders proclaiming the applicant as anoffender, announcing an award on his head, or for his arrestor ordering his detention should be furnished. In absenceof those documents it has next been provided thatcertificate from veteran freedom fighters who had themselvesundergone imprisonment for five years or more, if theofficial records are not forthcoming due to theirnon-availability, should be produced. It is the case of thepetitioner that regarding his underground activity duringthe Quit India Movement, official records are notforthcoming, due to their non-availability. He submittedthree affidavits. From the first affidavit of ShriJugatrambhai Chimanlal Dave it is clear that he sufferedimprisonment for more than five years during the freedomstruggle. In the affidavit Shri Dave stated that thepetitioner remained underground for more than six monthsduring the period 1942 to 1946, as he was one for whosedetention orders were issued but he evaded arrest. So faras the affidavit of Shri Kikubhai Jagannath Pathak isconcerned, his imprisonment period is less than five years.But he has been awarded Tamra Patra and life time politicalcentral pension. Same is the case with Shri MakanjibhaiPatel whose imprisonment period is less than five years. Itis the quality and not the quantity which needs to beconsidered. In the present case, even if two affidavits ofprominent freedom fighters, namely, Shri Makanjibhai Pateland Kikubhai Jagannath Pathak are excluded, yet oneaffidavit remains of the freedom fighter who has undergoneimprisonment for more than five years during the freedommovement of the country.

4. Respondent No.1 has filed reply to the writ petitionand has come up with the case that the Advisory Committeehad decided to reject the case of the petitioner because hehas not produced any direct documentary evidence to showthat he was a freedom fighter. His claim for State Pensionwas also rejected on the same ground. So far as thecertificates given by the Police Commissioner, Surat City,District Superintendent of Police, Surat (Rural), and PoliceSub Inspector, Kamrej are concerned, no reason whatsoeverhas been given for their non-consideration.

with the case that the petitioner has not produced anydirect documentary evidence, like warrant, etc., As regardsthe certificates of the police authorities which have beenproduced by the petitioner, respondent No.1 has come up withthe case that the same do not comply with various provisionsof the scheme. This is only a bald statement made withoutpointing out the provision from the scheme that thecertificates are contrary to the same. I have alreadyreferred to the provisions of the scheme which provide thatwhere official records are not forthcoming due to theirnon-availability, certificates from veteran freedom fighterswho had themselves undergone imprisonment of five years haveto be produced. The petitioner has produced sufficientmaterial on record that the official record relating to hisunderground activities during the Quit India Movement or thefreedom movement are not available. He producedcertificates in the form of affidavits of veteran freedomfighters. Even if the two certificates are excluded, thenone certificate remains, and it is not the requirement ofthe scheme that on the basis of of one certificate pensionclaim is not maintainable.

6. Though reply has not been filed by respondent No.2,Mr. J.D. Ajmera, learned counsel appearing for respondentNo.2 has stated that the certificate submitted by thepetitioner of the freedom fighters who are receiving CentralPension are acceptable. It has also been stated by Mr.Ajmera that the State Government had sent the report whichwas received by the Ministry on 20th September, 1995 whereinthe State Government has not recommended the case in absenceof documentary evidence from the official record. It hasnext been contended by Mr. Ajmera that certificate ofnon-availability of record issued by the Commissioner ofPolice, Surat City, is not acceptable. Such certificateshould have been issued by the Court or by the office of theDistrict Magistrate. Unless such certificate is issued bythe District Magistrate's office or by the Court, the caseof the petitioner for grant of Samman Pension cannot beconsidered. Shri Ajmera very fairly conceded that it willbe open to the petitioner to produce certificate from theappropriate authority and thereafter the petitioner's casewill be again examined.

7. I am really shocked to see how respondents No.1 and2 have proceeded in the matter of consideration of theapplication of the petitioner who claims to be a freedomfighter for Samman Pension. Looking to the reply ofrespondent No.1 and the contention raised by learned counselfor respondent No.2 I am satisfied that the matter ofpension to freedom fighters has been dealt with in the mostcasual manner. No body has taken care sitting either at the Central Government offices or the State Government officesthat the petitioner has done what was within his reach andapproach. The petitioner could not have snatchedcertificates from the office of the District Magistrate,Surat. He obtained certificates from the police authoritiesof the district and submitted those certificates to theDistrict Magistrate, Surat way back on 22nd February,1991.In case the District Magistrate is not acting on theapplication of the petitioner which was submitted in theyear 1991, what the poor old man can do except approachingthis court? The defence of respondent No.1 is that thepetitioner's claim for grant of Samman Pension is notacceptable as he has not produced any direct documentaryevidence to show that he was a freedom fighter. Accordingto respondent No.1 such direct evidence must be in the formof warrant, etc.,This defence of respondent No.1 is totallycontrary to the requirements of the Samman Pension Scheme,1980.

8. It is really shocking that Mr. H.R.Pathak, DeputySecretary, General Administration Department, has filed theaforesaid affidavit without looking into the provisions ofthe Scheme. It appears that Mr. H.R.Pathak has not madecorrect statements in the affidavit. In the affidavit hehas stated that he has perused copy of the petition which isnot correct because in case he had perused copy of the writpetition to which the petitioner has annexed copy of theSwatantrata Sainik Samman Pension Scheme, 1980 he would nothave come up with such a defence in the reply. Therequirement of the scheme is production of certificate fromveteran freedom fighters where the official records are notavailable. At the same time the defence which has beentaken by respondent No.2 is also not acceptable. In suchmatters, this technical approach which has been adopted bythe learned counsel for respondent No.2 before this Court isundesirable. In the matter of grant of Swatantrata SainikSamman Pension the respondents should have taken realisticapproach and should have provided all possible assistance tothe claims of those persons so that expeditiously theirapplications are decided, and in case they are found to beeligible the pension may be given to them. The petitionerhas already attained the age of 75 years. For the last 14years the poor person is moving from pillar to post, and therespondents sitting in their air-conditioned offices aredealing with the case in a manner which is even contrary tothe provisions of the Scheme itself. In the year 1991 hesubmitted application to the Collector along with thecertificates issued by the Police Officers, but the DistrictMagistrate has not given any reply. In such cases theofficers at Gandhinagar in the Secretariate should havecared to see that the Collector issues the certificate. If respondents No.1 and 2 and their officers are unable to getthe certificate from the District Magistrate after thepetitioner had submitted the application along with thecertificates issued by the police authorities aboutnon-availability of record, how it could be expected fromthe petitioner that he will be able to get thesecertificates. Taking into consideration all the facts andcircumstances of the present case I am satisfied that it isa case where both the respondents have shown scant regardfor the provisions of the Scheme and the application of thepetitioner has been rejected wholly on arbitrary grounds.The application of the petitioner has not been considered inthe manner and the perspective in which it should have beendone.

Conclusion

9. In the result this writ petition is allowed in part.The order of rejection of the application of the petitioner,as well as the recommendation of the Advisory Committee ofthe State Government stating that the petitioner is notentitled to Swatantrata Sainik Samman Pension are quashedand set aside. Respondent No.1 is directed to takenecessary certificate from the District Magistrate, Surat,in respect of which the petitioner had submitted applicationin the year 1991. This exercise should be completed byrespondent No.1 within a period of one month from the dateof receipt of certified copy of this order. It is expectedof the District Magistrate, Surat, who is not a party to thepetition, that he may issue necessary certificate takinginto consideration the certificates issued by the DistrictSuperintendent of Police, Surat( Rural) which has beenbrought to his notice by the petitioner vide his applicationdated 23-2-1991 within the time as stipulated above.Thereafter, respondent No.1 will consider the application ofthe petitioner for grant of Swatantrata Sainik SammanPension within a period of one month and will send thepapers to respondent No.2 within 15 days thereafter.Respondent No.2 thereafter shall consider the matter withinone month of receipt of the recommendation from respondentNo.1, and in case it is found that the petitioner iseligible for pension, then necessary orders in that behalfshall be issued forthwith. In case the petitioner is notfound eligible for the grant of Samman Pension, reasonedorders shall be communicated to him forthwith by registeredA.D. post. The petitioner, if found eligible for sammanpension, shall be paid the same within a period of twomonths thereafter together with interest at the rate of 12%per annum from the due date. As an old person has beenunnecessarily harassed , and he had to come to this Courtfor redressal of his grievance, it is a fit case in whichthe respondents should be saddled with cost. RespondentNo.1 is directed to pay to the petitioner Rs.5,000/- (five thousand) towards cost of this petition. It is directedthat the amount of cost of Rs.5000/- shall be paid to thepetitioner by crossed demand draft drawn in his favour. Thepetition stands disposed of with the aforesaid directions.Notice stands disposed of.

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