Himachal Pradesh High Court
Balvinder Singh Mahal vs Union Of India And Another on 10 August, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 2569 of 2012
Date of Decision: 10.08.2017
.
______________________________________________________________________
Balvinder Singh Mahal ....Petitioner.
Vs.
Union of India and another .....Respondents.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the petitioner: Ms. Tim Saran, Advocate.
For the respondents: Mr. Angrez Kapoor, Advocate, vice Mr.
Ashok Sharma, ASGI, for respondent No.
1.
Mr. Vikram Thakur, Deputy Advocate
General, for respondent No. 2.
Ajay Mohan Goel, Judge (Oral):
By way of this writ petition, the petitioner has prayed for the following reliefs:
(i) That the respondents may kindly be directed to grant the status of freedom fighter family to the petitioner and his family, so that the stigma of so called deserter may be removed.
(ii) Directing the respondents to consider the case of the father of the petitioner for granting all benefits being extended to all freedom fighters under the freedom fighters policy, which has been adopted and followed by the State of Himachal Pradesh and is applicable to all Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 16/08/2017 23:56:04 :::HCHP 2freedom fighters for the purpose of pension/pensionary benefits/reservation for the wards of freedom fighters and other benefits etc.
(iii) Any other order as this Hon'ble Court may .
deem fit, just and proper in the facts and circumstances of the present case, may be passed in the interest of justice.
(iv) Entire record pertaining to instant case may please be summoned and examined, which would help this Hon'ble Court to arrive at just conclusion.
(v) The writ petition may kindly be allowed
with costs."
2. Case of the petitioner is that late Havaldar Sh. Harnam Singh died in the year, 2005 and his wife thereafter died in the year, 2008 and petitioner is one of their legal heirs/representatives. As per the petitioner, his father served in the British Army with full devotion, honesty and dedication and he was also given out of turn promotion as Havaldar. As per the petitioner, his father also took active part in freedom struggle and for the said reason, he was ordered to be discharged by the then Brigade Commander of Rajmak Brigade of the British Army. It is further averred in the petition that father of the petitioner fought the second World War till his forcible discharge from the British Army.
Grievance raised in the petition is that unfortunately father of the petitioner is known as a deserter in the local area despite the fact that he was forcibly discharged from the British Army on account of his activities in the freedom struggle of the Nation. In these circumstances, this writ ::: Downloaded on - 16/08/2017 23:56:04 :::HCHP 3 petition has been filed praying for the reliefs already mentioned hereinabove.
3. In the reply so filed to the petition by respondent No. 2, the .
stand taken by the State is that father of the petitioner was recruited in British Army as a Soldier and he retired from the post of Havaldar and at no point of time, he in any manner participated in National Freedom Struggle. It is further mentioned in the reply that father of the petitioner fought Second World War as a Soldier of the British Army, which had no connection with the freedom movement of India. It further finds mentioned in the reply that representation filed by the petitioner to extend to him the benefit of freedom fighter already stood rejected by the State on the ground that his father was ineligible to be declared as a freedom fighter in accordance with the Swatantrata Sainik Samman Pension Scheme, 1980.
4. I have heard the learned counsel for the parties and have also gone through the pleadings as well as documents appended alongwith the petition.
5. Annexure P-5 is the order of discharge of the father of the petitioner issued by Brigade Commander of Rajmak Brigade dated 01.06.1945. A perusal of the same demonstrates that the father of the petitioner was enrolled with the British Army on 13.11.1932 and he stood discharged from the same on 01.06.1945. It is nowhere mentioned in this discharge certificate that the said discharge of the father of the petitioner was on account of his having participated in the freedom struggle of the ::: Downloaded on - 16/08/2017 23:56:04 :::HCHP 4 country. On the other hand, a perusal of the discharge certificate demonstrates that it finds mentioned therein that the bearer's conduct, i.e. conduct of the father of the petitioner and character while with the .
Army had been exemplary. Now, whether or not the father of the petitioner participated in the freedom struggle of India and whether or not he was discharged from the Army on account of his alleged active participation in the freedom struggle of India are disputed questions of fact, which cannot be gone into in a petition so filed under Article 226 of the Constitution of India.
6. Learned counsel for the petitioner could not give any satisfactory answer as to why the father of the petitioner had not applied for being conferred the status of a freedom fighter during his life time, as it is evident from the averments made in the writ petition that Shri Harnam Singh, i.e. father of the petitioner, was alive till 2005. In fact, this Court can read in between lines in order to infer that this entire exercise has been undertaken by the petitioner to take benefit of the concessions which are accruable to the kith and kin of freedom fighters.
Even otherwise, in my considered view, this Court can not either confer the status of freedom fighter upon the family of the petitioner, as has been prayed for, nor any direction can be issued by this Court that the stigma of so called deserter may be removed from the name of his father.
By no stretch of imagination this Court can issue a mandamus to the inhabitants of the native place of the petitioner directing them not to allegedly treat the father of the petitioner as a deserter. Passing any such ::: Downloaded on - 16/08/2017 23:56:04 :::HCHP 5 order evidently is beyond the jurisdiction so conferred upon this Court by the Constitution of India under Article 226 of the same.
7. Accordingly, as there is no merit in the petition, the same is .
therefore dismissed. Miscellaneous applications, if any, also stand disposed of. No order as to costs.
(Ajay Mohan Goel)
Judge
August 10, 2017
(bhupender)
r to
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