Madhya Pradesh High Court
Sheel Chand Jain vs The State Of M.P. & Anr on 2 July, 2013
Equivalent citations: AIR 2014 (NOC) 40 (M.P.)
Author: Anil Sharma
Bench: Anil Sharma
1 W.P.No.2320/96
HIGH COURT OF MADHYA PRADESH : JABALPUR
DB: HON'BLE SHRI JUSTICE RAJENDRA MENON
&
HON'BLE SHRI JUSTICE ANIL SHARMA, JJ.
Writ Petition No. 2320/1996
Sheel Chand Jain
-Versus-
State of M.P. & Ors.
---------------------------------------------------------------------------------------
Shri R. K. Samaiya, Advocate for the petitioner.
Shri Rajesh Tiwari, Govt. Advocate for the respondents / State.
---------------------------------------------------------------------------------------
ORDER
(02/07/2013) As per Anil Sharma, J:
The petitioner has filed this petition under Article 226/227 of the Constitution of India for issuance of a writ of certiorari for quashing the order passed by the Collector, Tikamgarh (MP) vide Annexure-P/14, by which, the benefits of pension under the Madhya Pradesh Swatantrata Sangram Sainik Samman Nidhi Niyam, 1972 (hereinafter referred to as "the Rules of 1972") has been denied to the petitioner.
2. The petitioner herein had filed a representation for getting the benefits of freedom fighter under the provisions of Rules of 1972 and the Collector, Tikamgarh had directed an enquiry to be conducted by Dy. Collector, Tikamgarh vide order dated 26.4.1985 (Annexure-P/1). Dy. Collector vide letter dated 25.8.1986 asked the petitioner to submit the documents regarding his participation in freedom fight movement. In response to the letter (Annexure-P/2), the petitioner submitted certificates of the Member of the Legislative Assembly dated 30.8.1973 (Annexure-P/3). The Collector, Tikamgarh also certified that the name of the petitioner has been entered in the list of freedom fighters as serial no. 140 2 W.P.No.2320/96 vide order dated 5.7.1989 (Annexure-P/4). The petitioner in response to the letter (Annexure-P/2) submitted full details of his participation in the freedom fight movement and in other activities pertaining to the freedom fight movement to the Collector, Tikamgarh (Annexure-P/5) but when the petitioner could not get any response, he again submitted representation of dated 26.9.1988 (Annexure-P/6) to the State Government's Secretary of General Administration Department. Thereafter, on the recommendation of the Collector, Tikamgarh and inquiry made by the Collector, the petitioner was called at Bhopal vide letter dated 15.8.1989 and he was honoured by giving certificate by the then Chief Minister for participation in the freedom fight movement vide Annexcure-P/7. When the petitioner did not receive any order for getting pension (Samman Nidhi), he submitted certificates issued by Ex-parliamentarian Shri Laxmi Narayan Nayak and Shri Magan Lal Goyal but vide impugned order Annexure-P/14 the claim of the petitioner has been rejected, being aggrieved thereof, the petitioner has filed this petition and also challenged the validity of sub rule 6 of Rule 3 of the Rules of 1972.
3. A Full Bench of this court consisting of 5 Judges on a reference vide order dated 11.3.2010 has held that Rule 3 (6) of the Rules of 1972 is a valid piece of legislation and it has been further held that the term "sanction order" (Swikriti Aadesh) would also mean the date on which order is passed by the State Government rejecting the application in a case where such an order is set aside by higher forum holding that Swatantrata Sangram Senani would be entitled for pension (samman nidhi).
3 W.P.No.2320/96
4. Therefore, only question remains for consideration in this petition is whether the Collector is justified in passing the impugned order Annexure-P/14 or not ?
5. On perusal of the order Annexure-P/14 it is clear that the fact regarding jail sentence or the period for remaining underground have not been proved according to the rules, therefore, the claim of the petitioner has been rejected.
6. Learned counsel for the respondents has drawn attention of this Court towards the order sheet dated 8/12/1996 vide Annexure- R/II in which it has been mentioned that the petitioner has not given any solid proof in his favour and has also not produced any government record showing that he remained underground from 13.11.1945 to 22.11.1946 and he has also not mentioned any reason for remaining underground and the Collector has not recommended in his favour.
7. It is an admitted fact that the petitioner has submitted two certificates of contemporary freedom fighters in the proforma according to Rules of 1972 namely Annexure-R/IV is the certificate given by Ex-parliamentarian Shri Laxmi Narayan Nayak and another certificate Annexure-R/V issued by Shri Ram Sahay Tiwari, Ex. Member of Parliament, Chhatarpur.
8. Learned counsel for the respondents / State has submitted that in the Annexure-R/IV, the period during which the petitioner remained underground has been mentioned as 13.11.1945 to 22.4.1946 and in Annexure-R/V has been mentioned as 15.1.1942 to 30.7.1942. It is further submitted that the petitioner is not claiming that he remained underground twice in different places. It is further submitted that the petitioner has not mentioned the 4 W.P.No.2320/96 period in which he remained underground and he has also not mentioned the period when he was confined in jail.
9. It is submitted by learned counsel for the respondents / State that looking to the contrary certificates and further considering the fact that the petitioner himself has not mentioned any date of remaining underground or the date on which he was confined in jail on account of taking part in the freedom fight movement, therefore, the Committee is fully justified in rejecting the claim of the petitioner.
10. Learned counsel for the petitioner on the other hand has cited a judgment of Hon'ble Apex Court in the matter of Gurdial Singh vs. Union of India and others (2001) 8 SCC 8, in which it has been held that for determination of eligibility under the Rule, 1972, standard of proof required for is not the same as is required in a criminal case or in case adjudicated upon rival contentions or evidence of parties. Since the object of the Scheme is to honour, and to mitigate the sufferings of, the freedom fighters, a liberal and not a technical approach should be adopted. Hence, a claim under the Scheme should be determined on the basis of probabilities and not by applying the test of "beyond reasonable doubt".
11. The Apex Court has also held in the matter of Gurdial Singh (supra) that the object of Rule, 1972 is to honour and to mitigate the sufferings of the freedom fighters.
12. Learned counsel for the petitioner has also cited judgments of this Court passed in the matter of Jaganath Bharati vs. State of M.P. & Anr. 2007 (I) MPJR SN 22 and Damodar vs. State of M.P. & Anr. 2004 (I) MPJR SN 4, in which considering the provisions of Rule 3 (3) and 3 (4) it has been held that the fact proved by certificate of another freedom fighter who actually 5 W.P.No.2320/96 remained in jail and Chief Minister also issued appreciation certificate in favour of the petitioner, the petitioner is also entitled to get the benefit of pension under the Rules of 1972.
13. According to Rule 2 of the Rules, 1972, definition of Swatantra Sangram Sainik / freedom fighter includes a person who was confined for "one day" or more during freedom movement according to sub rule (3). According to sub rule (8) of the Rule 2, a person who has not undergone any sentence but has remained underground, he has been declared "offender" and against whom, reward has been declared for his arrest has also been treated as freedom fighter but more important is sub rule (13) of Rule 2 which is reproduced hereinbelow :-
(rsjg) ftlus jhok pkoy dkaM] fiiyksnk dkaM] dqjokbZ vkanksyu] pj.k iknqdk vkanksyu] lkgkoy xksyh dkaM] Xokfy;j tkxhj d"Be fojks/kh vkanksyu rFkk vksjNk vkanksyu esa Hkkx fy;k gks] iztkeaMy vkanksyu] gSnjkckn vk;Z lekt vkanksyu esa Hkkx fy;k gks
14. Sub rule (13) has been added by way of amendment in the year 21.11.1984 and 10.2.1988 for taking benefits under sub rule (13) of Rule 2 but freedom fighter has only to prove that he has participated in the freedom fight movement.
15. The petitioner has participated in Orchha movement which is also known as Madhuvan movement and this fact has been certified by two ex-member of Parliament namely Shri Laxmi Narayan Nayak and Shri Ram Sahay Tiwari by Annexures-R/IV and R/V, respectively. It is important to note that Annexures-R/IV and R/V have been given on 28.3.1988 and 4.4.1985, respectively and on the basis of these two certificates, the petitioner has been honoured by the then Chief Minister of M.P., Shri Motilal Vora, vide Annexure-P/7 dated 15th of August, 1989.
6 W.P.No.2320/96
16. Learned counsel for the petitioner has also drawn attention of this court towards the fact that the Collector, Tikamgarh has also certified vide Annexure-P/4 dated 5.7.1989 that the name of the petitioner has been entered in the list of freedom fighters as Sr. No.140.
17. The petitioner took part in the freedom fight movement of Orchha. Certificates vide Annexures-P/3 and P/4 have been given after more than 40 years of the movement, therefore, considering the long gap of period it is not expected that exact date shall be remembered by anyone nor nobody is expected to keep the record of the period during which he remained underground during freedom movement. Therefore, in the absence of record of the period of remaining underground, only mentioning the fact that a person has remained underground during freedom movement by contemporary person is sufficient proof of remaining underground during freedom fight movement in absence of any contrary on the record. Further, according to sub rule (13) of Rule 2 of the Rules of 1972, taking part in Orchha movement itself is sufficient proof to declare participant a freedom fighter. Therefore, certificates vide Annexures-P/3 and P/4 should have been considered as a proof of participation of the petitioner in the freedom fight movement of Orchha or Madhuvan. Rules itself presumed that there has been a movement in Orchha which is known as Orchha movement. Therefore, considering the presumption, the petitioner ought to have been declared freedom fighter under the Rules of 1972 and consequently, he was entitled to get the benefit of pension (samman nidhi) under the Rules of 1972.
18. Considering the fact that the Apex Court has held that very object of Rules of 1972 is to honour and to mitigate the sufferings 7 W.P.No.2320/96 of the freedom fighters and on considering the same object, a liberal and not a technical approach should be adopted, the respondents are not justified in rejecting the claim of the petitioner by the order Annexure-P/14 and particularly when there is no record available before the authorities in rebuttal the claim of the petitioner.
19. Further, the Collector, Tikamgarh has issued certificate Annexure-P/4, according to which, the name of the petitioner has been entered in the list of freedom fighters as Sr. No. 140 and such entry has not been found concocted and false and the then Chief Minister of M.P., Shri Motilal Vora has also issued certificate Annexure-P/7 dated 15th August, 1989.
20. Therefore, the petitioner is entitled to get the benefit of pension (samman nidhi) being a freedom fighter under the Rules of 1972 from the date of rejection of claim by the Collector viz 8.12.1995, according to the judgment passed by the Full Bench.
21. Keeping in view the aforesaid, the petition is allowed and the impugned order Annexure-P/14 is hereby quashed. The respondents are directed to release pension / Samman Nidhi to the petitioner with effect from the date of order passed on 8.12.1995 and the entire amount along with interest @ 12% p.a., be paid to the petitioner within a period of two months from the date of receipt of certified copy of this order and it is also directed that the pension / Samman Nidhi shall be paid to the petitioner in future regularly.
With the aforesaid directions, petition stands allowed and disposed of.
(Rajendra Menon) (Anil Sharma)
Judge Judge
Parouha/-