MAHENDER SINGH v.
UNION OF INDIA  INSC 780 (27 September 2010)
Judgement IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5215 OF 2009 Mahender
Singh .... Appellant (s) Versus Union of India .... Respondent(s)
P. Sathasivam, J.
appeal is directed against the final judgment and order dated 30.01.2006 of the
High Court of Delhi at New Delhi in L.P.A. No. 710 of 2005 whereby the High
Court allowed the appeal filed by the respondent herein and set aside the order
passed by the learned single Judge.
a. According to the
appellant, he is a freedom fighter, who sacrificed his studies in the freedom
struggle and had taken active part in the 1942 agitation and was forced to
remain an absconder for more than four years i.e. from 20.08.1942 till
September, 1946 as he was made an accused in G.R. Case No. 985 of 1942 and in
Mokama P.S. Case No. 259 (8) of 1942 titled State vs. Mahender Singh &
Ors., relating to the incidents of burning and damaging of a post office,
railway line etc. at Mokama during freedom struggle. In 1972, Freedom Fighters'
Pension Scheme was introduced by the Government of India for the grant of
pension to living freedom fighters and their families. In 1980, the benefit of
the Swatantra Sainik Samman Pension Scheme, 1980 (formerly known as `the
Freedom Fighters' Pension Scheme, 1972') was extended to all the Freedom
fighters as a token of Samman (respect) to them.
b. On 07.09.1981, the
appellant herein filed an application for pension under the Scheme which was registered
on 20.06.1981. After a detailed enquiry by the Bihar Government, the matter was
placed before the Advisory Board on 12/13.12.1995 which recommended for release
of pension to the appellant w.e.f. 01.08.1980.
In the absence of any
reply, the appellant again on 09.04.1997 sent a letter to the Government for
releasing his pension. Thereafter on 19.09.1997, the appellant sent a notice
through his advocate which remained unreplied.
On 15.12.1997, the
appellant filed a petition being W.P. No. 1248 of 1998 before the High Court of
Delhi. Vide order dated 26.03.1998, the petition was withdrawn by the appellant
on the assurance of the learned counsel for the respondents therein that as and
when they got the clarifications sought for in the representation of the
appellant, the representation shall be disposed of. The High Court further
directed the Government to take a decision on the representation within three
months of the receipt of the clarifications. Not getting any reply from the
Government, on 17.07.1998, the appellant sent a reminder to the respondent. On
10.12.1998, the appellant filed a Contempt Petition bearing C.C.P. No. 489 of
1998 before the High Court in which a show cause notice was issued to the Government
for non-complying with its order. However, on 17.12.1998, the appellant got a
registered letter from the Government refusing to grant him the freedom fighter
pension. On 17.04.2001, the High Court dismissed the contempt petition and
observed that if the appellant herein is aggrieved of the order of rejection of
his grant of pension by the Government, he may pursue appropriate remedy
provided in law.
c. Against the rejection
of the freedom fighter pension, on 28.11.2001, the appellant filed W.P.(C) No.
7439 of 2001 before the High Court and the same was allowed on 24.11.2003 by
the learned single Judge with costs quantified at Rs.10,000/- and also directed
the Government to grant pension to the appellant under the Scheme w.e.f.
01.08.1980. On not being released the pension by the Government, the appellant
filed a contempt petition on 08.09.2004. Challenging the judgment of the
learned single Judge dated 24.11.2003 in W.P. (C) No. 7439 of 2001, the
Government filed L.P.A. No. 710 of 2004 before the Division Bench of the High
Court. Vide order dated 30.01.2006, the Division Bench allowed the L.P.A. and
set aside the order of the learned single Judge.
Aggrieved by the said
order, the appellant has preferred this appeal by way of special leave petition
before this Court.
learned counsel for the appellant as well as the respondent.
only point for consideration in this appeal is whether the appellant has made
out a case for grant of freedom fighters pension in terms of Swatantra Sainik Samman
Pension Scheme, 1980 (hereinafter called "the Scheme"). According to
the appellant, he remained underground for more than six months as a proclaimed
offender. The Scheme provides for the manner of application, availability of
application forms, the time within which the applications are to be made, how
claims are to be proved etc. In this case, the appellant made the application
on 20.06.1981 which within the time prescribed.
let us consider the manner in which the claim is to be proved which is provided
in Para 9 of the Scheme which reads thus:
"9. HOW TO PROVE
THE CLAIMS (EVIDENCE REQUIRED) The applicant should furnish the documents
indicated below whichever is applicable.
Certificate from the
concerned jail authorities District Magistrate or the State Government in case
of non- availability of such certificates co-prisoner certificate from a
sitting MP or MLA or from an ex-MP or an ex- MLA specifying the jail period
(annexure I in the application form) (b) REMAINED UNDERGROUND:
evidence by way of court's/government orders proclaiming the applicant as an
offender, announcing an award on his head, or for his arrest or ordering his
detention (ii) Certificates from veteran freedom fighters which had themselves
undergone imprisonment for five years or more if the official records are not
forthcoming due to their non-availability.
(c) INTERNMENT OR
EXTERNMENT 6 (i) Order of internment or externment or any other corroboratory
from prominent freedom fighters who had themselves undergone imprisonment for
five years or more if the official records are not available.
(Annexure II in the
The Certifier veteran
freedom fighters in respect of underground suffering, internment/externment and
the applicant should belong to the same administrative unit before the
reorganization of States and their area of operation must be the same.
(d) LOSS OF PROPERTY
confiscation and sale of property orders of dismissal or removal from
As stated earlier,
the appellant laid his claim only on the ground that he had remained
underground for more than four years and from the aforesaid provision, it can
be seen that there are two modes of providing the evidence for the same. The
first one is by producing documentary evidence and the second where the
official records are not forthcoming due to their non-availability, the claim
is to be proved by certificates from the veteran freedom fighters who have
themselves undergone imprisonment for five years or more. In the case of the
appellant, he asserted that the official records are not traceable due to non- availability
and submitted a certificate from one Shri Jagdish Singh who was a veteran
Learned counsel for
the appellant also brought to our notice the recommendation dated 09.04.1997 of
the Government of Bihar recommending the case of the appellant for payment of
freedom fighters pension under the Scheme w.e.f. 01.08.1980.
is true that based on the particulars furnished by the appellant, the State
Screening Committee, Bihar recommended the case of the appellant for payment of
pension under the Central Scheme. However, the Central Government in the
absence of any authenticated records particularly the details about
"underground suffering" for a minimum period of six months and
finding that the certificate issued by Shri Jagdish Singh is not sufficient
rejected the claim of the appellant.
the light of the controversy particularly, the claim of the appellant and the
stand taken by the Government of India, we have carefully gone through the
eligibility provisions as well as relevant criteria to prove the claim under
the Scheme. In his application dated 07.03.1981, the appellant had merely
indicated that he remained underground from 1942 to 1946. As rightly pointed
out by the respondent, he did not indicate the details of the case in which he
had gone underground. Though the appellant has placed record of proceedings
which show that the relevant records were not available with them, the fact
remains the said Non-availability of Records Certificate (NARC) did not
indicate the date of disposal of the case as well as the relevant provisions of
the Indian Penal Code. In such circumstances, as rightly pointed out by the
respondent, it is not clear whether the said case, if any, was related to
freedom struggle and what was the duration of the claimed suffering of the
appellant. Though the appellant had given an opportunity to furnish the name of
co-accused in the same case, who are presently getting pension on the basis of
GR NO. 985/1942, the appellant was unable to furnish such details.
as the Personal Knowledge Certificate (PKC) of Shri Jagdish Singh, it is the
stand of the Government of India that the same is not acceptable as the
certifier was in jail for most of the period of the claimed suffering of the
appellant. In view of the same, it could not be possible for the certifier to
verify the period as well as the reasons of the claimed suffering of the
appellant based on his (Jagdish Singh) personal knowledge.
the State Advisory Committee and the Government of Bihar recommended the case
of the appellant for Central Scheme, it is pointed out by the learned counsel
for the respondent that the same is not binding on the Central Government in
the absence of required proof for the same. In other words, the recommendation
of the State Government is not final or conclusive and it is for the authority
of the Central Government granting such pension to make further inquiry in the
matter in terms of various conditions prescribed in the Scheme and to take a
the light of the above discussion, we conclude that the appellant has failed to
establish his claim for freedom fighter pension in terms of the Central Scheme,
on the other hand, we are in agreement with the conclusion arrived at by the
Division Bench of the High Court.
appeal fails and the same is dismissed.
No order as to costs.