IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) TUESDAY, THE SECOND DAY OF DECEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE S.V. BHATT WRIT PETITION No. 1691 of 2005 BETWEEN P.Jaya AND ... PETITIONER Government of Andhra Pradesh, Department of Irrigation, Rep. by its Assistant Engineer, RC Section, Vijayawada and others ...RESPONDENTS The Court made the following:
ORDER:
Heard.
2. Petitioner is the wife of Late Pagadala Venkateswara Rao. The writ petition is filed for Mandamus declaring the orders of respondent No.1 No.52/CC/195/2000-FF/S2, Government of India, Ministry of Home Affairs dated 21/22.06.2004, as illegal, arbitrary and contrary to Swatantrata Sainik Samman Pension Scheme, 1980 (for short ‘the Scheme’) and issue a consequential direction to respondents to grant freedom fighter (dependant pension) under the Scheme to the petitioner with effect from the application Dt. 14.03.1986.
3. Late Pagadala Venkateswara Rao was a resident of Guntur and settled in Mumbai as an Advocate. He was a freedom fighter and recognized by State of A.P. as political sufferer. During his life time, Pagadala Venkateswara Rao through applications dated 14.03.1980 and 14.03.1986 applied for benefits under the Scheme. From the material available on record, it appears that on 14.03.1986 either a fresh application or reminder was sent by Late Pagadala Venkateswara Rao. The petitioner being his wife is pursuing the litigation for the reliefs under the Scheme after the demise of her husband.
4. The case of petitioner is that the husband of petitioner satisfies the definition of freedom fighter and is entitled for benefits under the Scheme. The factual basis is that late Pagadala Venkateswara Rao has undergone imprisonment for more than six months at Central Prison, Bellary and Central Prison, Guntur in C.C.No.67/43 of Sub- District Magistrate, Guntur and under trial in Case No.7306/44 of Sub- District Magistrate, Guntur, respectively. In support of the plea that Pagadala Venkateswara Rao underwent imprisonment for six months and qualifies himself for all the benefits of a freedom fighter, the petitioner relies upon endorsement viz., L.Dis.8655/79-CT dated 31.12.1979, certificate issued by the Superintendent, Central Prison, Bellary No.JC/100/1300/87 dated 07.05.1987 and an excerpt from the work of a research scholar, who has published thesis on the freedom fighters and chronicled the periods of imprisonment etc. The petitioner relies upon the letter of the Mandal Revenue Officer in L.Dis.No.1356/88 dated .06.1989. The petitioner also relies upon the certificate issued by the Collectorate, Guntur, dated 03.03.1979 to the effect that the name of P.Venkateswarlu is registered as Sl.No.164 in the Register of political sufferers of Guntur Taluq maintained in Collector’s Office, Guntur.
The certificate of Sri Chebrolu Hanumaiah, Ex-M.L.C., certifying that P.Venkateswara Rao is a political sufferer, that he was sent to Bellary Central Jail for writing an article on Quit India.
The 1st respondent through the impugned proceeding rejected the request by observing as follows:
“On verification of the records, the State Government has declined to recommend for grant of pension as the claimed jail suffering of your late husband could be established only to the extent of 6 days from 28.08.1943 to 02.09.1943 in Central Prison, Bellary and not for one year as mentioned by you.
The finding recorded by the 1st respondent is on the strength of communication Rc.No.507/2005-2 dated 12.03.2007 of the District Collector, Guntur-3rd respondent and the letter No.16343/FF1/A1/2005 dated 13.03.2007 of the 2nd respondent.
5. On the application of Late Pagadala Venkateswara Rao, the Collector, Guntur, through communication in Rc.No.507/2005-2 dated 12.03.2007, forwarded the report to the 2nd respondent. The communication, dated 12.03.2007, is substantially based upon the report of the Revenue Divisional Officer (RDO), dated 20.02.2007. It is matter of interest that the RDO without properly appreciating the scope and content of various documents on which Late Pagadala Venkateswara Rao claimed the benefit of a freedom fighter under the scheme concluded that the freedom fighter was imprisoned for a period of six days from 28.08.1943 to 02.09.1943. The point for examination by the respondents was whether Late Pagadala Venkateswara Rao has placed material evidence in support of his imprisonment for six month for benefits under the Scheme. Further the judicial review of this court is confined to the limited extent of examining whether 2nd and 3rd respondents considered the material on record while recommending for rejection of petitioner’s claim. The outcome of the writ petition is dependant on the tenability of this recommendation and the material available on record.
6. In Gurdial Singh v. Union of India and others
[1]
, the apex court has considered the entitlement of freedom fighters for benefits under the scheme and the objective manner in which these applications are required to be considered. The relevant paragraphs in the reported case are 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 in the freedom struggle without any expectation 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 the citizens who suffered imprisonment were handicapped to get the relevant record from the jails where they had suffered 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 Mukan 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 object 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 of their dependents. The preference in 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 Court categorically mentioned that the pension under the scheme should be made payable from the date on which the application is made whether it is accompanied by necessary proof of eligibility or not.
7. The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the scheme. It should not be forgotten that the persons intended to be covered by scheme have suffered for the country about half a century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the scheme. The case of the claimants under this scheme is required to be determined on the basis of the probabilities and not on the touch stone of the test of ‘beyond reasonable doubt’. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence.
8. We have noticed with disgust that the respondent Authorities have adopted a hyper-technical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been passed with a biased and close mind completely ignoring the verdict of this Court in Mukund Lal Bhandari’s case (supra). We further feel that after granting the pension of the appellant, the respondents were not justified to reject his claim on the basis of material which already existed, justifying the grant of pension in his favour. The appellant has, unnecessarily, been dragged to litigation for no fault of his. This High Court has completely ignored its earlier judgments in CWP No.3790 of 1994 entitled Mohan Singh v. Union of India, decided on 01.06.1995 and CWP 14442 of 1995 decided on 11.12.1995.”
7. The decision reported in S.Lakshmi Narayana v. Special
[2]
Secretary, Freedom Fighters Division , has been brought to the notice of this court to contend that the facts in the reported case are similar to the case on hand and the petitioner is entitled to both the reliefs in the writ petition.
8. Keeping in mind, the ratio expressed by these authorities, the case on hand is considered.
9. Late Pagadala Venkateswara Rao is admittedly recognized as a political sufferer by the State of A.P. and he applied to 1st respondent for grant of benefits under the scheme on the premise that he had undergone six months of imprisonment at Central Prison, Bellary and Sub-Jail, Guntur. The details furnished by the applicant are as follows:
The Sub-Divisional Magistrate, Guntur, in C.C.No.67 of 1943, convicted late Pagadala Venkateswara Rao and sentenced him to six months RI. On 28.08.1943 he was lodged in Central Prison, Bellary. The applicant filed an appeal and he was granted bail by the appellate court and on 02.09.1943 he was released from Central Prison, Bellary. The applicant was one of the accused in Quit India Movement case. On release from Jail, it is his case that in under trial case No.7306/44 he was taken into custody and lodged in Sub-Jail, Guntur. From the endorsement dated 31.12.1979 issued by the office of the Collector, Guntur, the following information can be culled out:
L.Dis.8655/79-CT Collectors Office, Guntur Dt.31.12.1979.
ENDORSEMENT Sub: - Freedom Fighters copy of extract of imprisonment particulars is regain register – Application of Pagadala Venkateswarlu – Reg.
Ref: - Application dt. 26.12.1979.
&&& Certified that Sri Pagadala Venakteswarlu @ Venkateswar Rao S/o Kotaiah is the freedom fighter and his imprisonment particulars is Alipuram Camp Jail, Ballery as per Regain Register is as follows:
Sl. Convict Name & address Sec. Sentence Date Cased No. No. Father’s Profn. Under sent once No. of Name convi- date of admiss Court cted & Dt. Date of ex- less of senten- with by pri- ted tenced which trail 1 2 3 4 5 6 7 8 9 100-8011 Pagadala Venkateswar Rao 38(6) DIRS 6 MR 28.8.43 CC 67/43 S/o Kotaiah, Guntur 28.8.43 24.2.44 43 Student Sentence reduced SDM To IMR RI by Guntur Sub-
Judge, Guntur and IM Period Has already undergone in Sub-Jail Guntur.
(9) xx 2-9-43 on bail and Judgement declared on 13.9.1944.
Sd/- P.S.Varaprasada Rao For Collector, Guntur Sd/-
For Collector, Guntur
10. A combined reading of the information furnished by the Central Prison, Bellary, through letter, dated 07.05.1987 and also the endorsement, dated 31.12.1979, what appears as a prima facie case is that on the date of conviction, in C.C.No.67 of 1943 the applicant was an undertrial prisoner in case No.7306/44. It may be true that pursuant to the conviction, in C.C.No.67 of 1943, at the first instance, the applicant had undergone sentence for six days. But in the appeal filed by Pagadala Venkateswara Rao, while confirming the conviction, the sentence is reduced from six months to one month. Had it been a case where the applicant had not undergone sentence, he was required to complete the sentence of one month imposed by the appellate Court. On the other hand, the entries show that the imprisonment undergone at Sub-Jail, Guntur, is taken note of and the individual did not undergo imprisonment. It is observed in the Certificate dated 07.05.1981 that the applicant has undergone sentence in Sub-Jail, Guntur, vide 7306/44, dated 13.09.44. Had it been a case where the applicant has not undergone the sentence, certainly the applicant was under a legal obligation to undergo the sentence of one month as per the Judgment in C.A.No.128/43 on the file of Sub-Divisional Magistrate, Guntur. The other documents relied upon by the applicants are certificate, dated 05.03.1979, issued by Sri Chebrolu Hanumaiah, who is stated to be a person having personal knowledge of the imprisonment of an applicant in a bomb case between 1943-45. The reply dated 26.09.1999 of Late Pagadala Venkateswara Rao ought to have been considered by the 1st and 2nd respondents before deciding the claim of Late Pagadala Venkateswara Rao for grant of the benefits under the scheme. Thus, there is non-consideration of material evidence and wrong inferences are drawn by the 3rd respondent.
11. It is matter of record that the Sub-Jail, Guntur, is not in a position to furnish full details of the inmates/prisoners for the period 1943-45. If the certificate dated 07.05.1987 is presenting any difficulty in appreciating the actual period of imprisonment undergone by the applicant, the Collector or for that matter the RDO ought to have obtained a certified photo copy of the particulars from Central Prison, Bellary. It appears to this court that the material filed by the applicant is not considered in the right perspective by the respondents. It is an admitted fact that the State of Andhra Pradesh has recognized the said Pagadala Venkateswara Rao as a political sufferer and all the benefits to which a political sufferer is entitled to under the State Scheme are being provided. The applicant should not be subjected to denial of benefit under the Central Scheme on account of non-availability of record at Sub-Jail, Guntur. The impugned communication for the above reasons, non-consideration of relevant material, is liable to be set aside and accordingly, set aside.
12. This Court while recording the above findings is not suggesting a lenient or liberal consideration of applications received under the scheme, for a good number of bogus claims are made to avail the benefits. Therefore, the 3rd respondent with a view to ensure correctness in his recommendation, firstly, does not treat the application as one made for grant of assignment or Government land. Secondly, the application of Freedom Fighter is given detailed consideration and recommendation is made. Juxtaposing the case on hand with the above observation, it appears to this Court that the RDO has not made detailed enquiry into the assertions of the applicant and that failed to get further required information from Central Prison, Bellary. This approach has vitiated the recommendation.
13. Writ petition is, accordingly, allowed. The matter is remitted to the District Collector, Guntur/3rd respondent to re-examine the entire material in the application of late Pagadala Venkateswara Rao and send fresh report to the 2nd respondent. He is further specifically directed to secure or get photo copies of all the details furnished by the Central Prison, Bellary through Certificate, dated 07.05.1987. The District Collector-3rd respondent is directed to forward the fresh report to the 2nd respondent within two months from the date of receipt of a copy of this order. The 2nd respondent, on receipt of report from the 3rd respondent, is directed to forward the same to 1st respondent within a further period of four weeks.
Thereafter, 1st respondent shall take a decision within three months from the date of receipt of report from 2nd respondent. The above said exercise shall be completed as directed by this Court, as above. Petitioner being the widow of a freedom fighter and also aged requires priority of consideration.
As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
S.V. BHATT, J December 2, 2014 LMV
[1] (2001) 8 SCC 8
[2] 2014 (5) ALD 237