Mohini Devi vs State Of Uttarakhand And Others

Sanjaya Kumar Mishra, J

By filing this writ petition, the petitioner has prayed for issuance of a writ in the nature of Certiorari quashing the order dated 25.10.2018 passed by respondent no. 4 (Annexure No. 1 to the writ petition) denying the family pension of freedom fighter to the petitioner. Petitioner has also prayed for issuance of a writ of Mandamus commanding and directing the respondents to grant benefit of the family pension treating her as successor of freedom fighter.

The facts of the case may succinctly be stated as follows:

The petitioner’s husband was stated be a freedom fighter, who participated in the freedom struggle against British Rule in India. On 22.12.1978, husband of the petitioner late Shri Mathura Dutt Kabdal died. On 04.11.1991, late Shri Mathura Dutt Kabdal was conferred the status of freedom fighter and the Additional District Magistrate, Nainital issued a certificate (Annexure No. 3 to the writ petition) in this regard. After death of the petitioner’s husband, petitioner applied for family pension as dependent of freedom fighter. On 27.03.2018, the Joint Magistrate, Lal Kuan obtained report from all concerned and submitted his report to the District Magistrate, Nainital along with documents of the petitioner. On 26.03.2018, petitioner was advised to again submit her particulars with District Administration, Nainital. On 25.10.2018, upon receipt of the letter issued by the District Magistrate, a decision was taken by the Department of Home, refusing the proposal of granting freedom fighter successor pension to the petitioner.

Learned counsel for the petitioner would take us through the document, especially Annexure No. 2 to the writ petition, which shows that husband of the petitioner was convicted and sentenced by the criminal Court for imprisonment till the rising of the Court and to pay a fine of Rs. 20/- and in default, to undergo rigorous imprisonment for two months under Section 38(5) of the Defence of India Rules, 1939. Rule 38 (5) prohibits any person from carrying or bringing in possession of any material, which may be taken as revolution or to assist the enemy. The said Rules were framed under the Defence of India Act,.

It is submitted on the behalf of the petitioner that the petitioner could not pay the fine of Rs. 20/-, therefore, he was incarcerated for two months. However, there is no material to show that he underwent the imprisonment. At the same time, this Court is taking note of the fact that State has taken a plea that there is no evidence or material that the petitioner’s husband did pay Rs. 20, as a fine imposed by the Court. Thus, it can safely be assumed at this stage that the husband of the petitioner has been incarcerated for two months during the British Rule, as he had violated the Defence of India Rule, which is definitely in pursuance of the activity as freedom fighter. Moreover, it is seen from the document that is attached to the writ petition that a number of schools and public institutions have opened in name of petitioner’s husband. In some of the documents, it is seen that the then Chief Minister of Uttarakhand was also felicitating the petitioner’s husband as freedom fighter.

The Scheme of giving pension to the freedom fighter has been formulated by the State with an intention to pay respect to such freedom fighters, who had taken part in the freedom struggle of India and in pursuance thereof, they had suffered incarceration or had been given other kind of torture. Such Scheme is in fact recognizing the contributions of such person(s) by providing him or his dependent a pension. It is in fact a pious obligation of the State Government to recognize the contribution of persons, who had made India independent.

Learned Addl. CSC for the State submits that the case of the petitioner does not come within the scope of the Scheme for grant of family pension, as it is meant for those freedom fighters who had been incarcerated for two months or more. However, from the circumstances / evidence available in this case, it is apparent that husband of the petitioner had undergone rigorous imprisonment for two months, as a default sentence.

In my considered opinion, such applications should not come to the Court and the State Government should consider the same in its proper perspective and in such a way that it should be taken as duty and obligation of the State towards freedom fighters on whose sacrifices we have achieved freedom and proud to say that we are free Indians.

In that view of the matter, this Court is of the opinion that writ petition should be allowed. Accordingly, it is allowed. The rule is made absolute. Impugned order dated 25.10.2018 passed by respondent no. 4 is hereby quashed and respondents are directed to grant benefit of family pension to the petitioner treating her as a successor of freedom fighter from the date of her application within a period of three months from the date of production of certified copy of this order.