Kottarathil Lakshmi v. State of Kerala and District Collector

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929** **WP(C).No. 30909 of 2003(D)** **-------------------------------------** **PETITIONER:** ## **-------------------** **KOTTARATHIL LAKSHMI W/O.LATE O.V.DAMODARAN, NEAR RAILWAY STATION, CHIRAKKARA P.O., TELLICHERRY, KANNUR DISTTRICT.** **BY ADV. SRI.M.K.DAMODARAN (SR.) SRI.V.S.BOBAN** **RESPONDENTS:** **-----------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION (FREEDOM FITHTERS PENSION (B), DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** **2. THE DISTRICT COLLECTOR, CIVIL STATION, KANNUR.** **BY GOVERNMENT PLEADER SMT.N.SUDHADEVI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2008, THE COURT ON 08/02/2008 DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.30909/2003** ## **APPENDIX** ## **PETITIONERS EXHIBITS** ## **EXT.P1:- COPY OF THE APPLICATION DT. 3.8.81 OF THE PETITIONER RETURNED BY THE DISTRICT COLLECTOR WITH ENDORSEMENT DT. 21.8.81.** **EXT.P2:- COPY OF THE APPLICATION DT. 26.11.99 SUBMITTED BY THE PETITIONER IN THE PRESCRIBED FORM.** **EXT.P3:- COPY OF THE PERSONAL KNOWLEDGE CERTIFICATE ISSUED BY SRI.KUNIYIL KRISHNAN DT. NIL.** **EXT.P4:- COPY OF THE CERTIFICATE OF SUFFRAGE ISSUED BY SRI.N.C.SEKHAR DT.25.7. 81.** **EXT.P5:- COPY OF THE CERTIFICATE ISSUED BY STI.T.K.RAJU DT. 30.7.81.** **EXT.P6:- COPY OF THE COMMUNICATION NO.51669/FFP/B2/2001/GAD DT. 19.9.01.** **EXT.P7:- COPY OF THE REPORT ISSUED BY THE CHIEF JUDICIAL MAGISTRATE, THALASSERY DT. 14.3.01.** **EXT.P8:- COPY OF THE REPORT ISSUED BY THE REVENUE DIVISIONAL OFFICER, THALASSERY DT. DT. 30.11.99.** **EXT.P9:- COPY OF THE REPORT ISSUED BY THE CIRCLE INSEPCTOR OF POLICE, THALASSERY, DT. 24.11.99.** **EXT.P10:- COPY OF THE COMMUNICATION DRT. 7.3.01 FROM THE SUPERINTENDENT, CENTRAL PRISON, BELLARI.** **EXT.P1:- COPY OF THE REPRESENTATION DT. 13.12.01 BEFORE THE IST RESPONDENT.** **EXT.P12:- COPY OF THE COMMUNICATION NO.57398/FFP/B2/2002/LAD DT. 26.8.02. EXT.P13:- COPY OF THE REPORT APPEARD IN THE DESHABHIMANI DAILY DT. 2.8.02. EXT.P14:- COPY OF THE JUDGMENT DT. 15.6.92 IN OP. NO.10325/88.** _**/**_ **TRUE COPY/** **P.S.TO JUDGE** **tss** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) NO.30909 of 2003-D** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of February, 2008.** ## **JUDGMENT** This writ petition projects the unfortunate case of the widow of a freedom fighter. The petitioner is the widow of late Shri O.V. Damodaran. Shri Damodaran died in the year 1964 and hence could not apply for freedom fighters pension. He was one of the participants in the Anti War Demonstration held on 15.9.1940 at Tellicherry Beach. Against him a non bailable arrest warrant was issued consequent on the registration of a criminal case by the British police. He was one of the accused in the case and another prominent freedom fighter Shri Kuniyil Krihsnan was the second accused. 2. Initially the petitioner filed an application for pension in the year 1981 which was returned by the District Collector as per Ext.P1 stating that the application received after 31.7.1981 will not be considered. Ext.P2 is the further application submitted under the Swathanthratha Sainik Samman Pension Scheme, which is dated 26.11.1999. 3. Along with Ext.P1, the petitioner had produced the certificates from prominent freedom fighters, Shri Kuniyil Krishnan, Shri N.C. Sekhar WPC 30909/2003 -2- Ex.M.P., Shri T.K. Raju and Shri K.V. Kunhiraman Nambiar. All these certifiers were recipients of Central pension as well as State pension. Ext.P3 is the personal knowledge certificate issued by Shri Kuniyil Krishnan. It is clearly stated therein that he is a recipient of Central Freedom Fighters' Pension under the Ministry of Home Affairs Order No.19/1/Genl/73-FF-VIII dated 30.8.1973 and State Freedom Fighters Pension under the Kerala Government as per Order No.R.Dis.4954/72 dated 24.1.1972. It shows that he was one of the recipients of Thamrapathra. He has certified that Shri O.V. Damodaran was a bonafide freedom fighter and remained underground for more than one year, viz. from 16.9.1940 to December 1964, as arrest warrant was issued against him. It is also stated that he himself was arrested and taken into custody on 17.9.1940 and was charge sheeted as the second accused in that case. One Shri P.K. Madhavan was the first accused in the said case and Shri P.K. Madhavan and Shri Damodaran evaded arrest and went underground. It is also made clear in the certificate that on the crucial day during Anti War Movement held on 15.9.1940, Shri Damodaran suffered injuries and that he had suffered great loss and damage personally and had sacrificed for the cause of the freedom. Ext.P4 is the certificate issued by Shri N.C. Sekhar Ex.M.P. and the details of grant of Central pension is given in the certificate itself. In Ext.P5 Shri WPC 30909/2003 -3- T.K. Raju also has certified about the underground sufferings of Shri Damodaran and the orders by which he had been granted Central Freedom Fighters Pension, Kerala State Freedom Fighters Pension and Thamrapathra. 4. But, again by Ext.P6, the application was rejected on the ground that the Anti-war Movement is not one recognised for Kerala Freedom Fighters Pension and that the petitioner has not produced the certificate showing the imprisonment and other details of the certifiers. In fact, the petitioner has produced herein Ext.P7 certificate issued by the Chief Judicial Magistrate' s Court, Thalassery stating that the records in C.C. No.100/1940 are not available in the court. Ext.P8 is the certificate issued by the Revenue Divisional Officer, Thalassery stating that the case records in connection with the arrest warrant issued against Shri Damodaran, are not available. To the same effect is the certificate, Ext.P9 issued by the Circle Inspector of Police, Thalassery. By Ext.P10, the Superintendent of Central Prison, Bellary has certified that the convict admission registers of Allipuram and Central Jail, Bellary for the period of 1941 could not be traced and hence he is unable to furnish the jail certificate of Shri Kuniyil Krishnan. 5. By Ext.P11, the petitioner forwarded these materials again to the first respondent. Again by Ext.P12, the application for State pension is WPC 30909/2003 -4- rejected on the ground that the defects have not been cleared and that the Anti-war Movement is not one approved for grant of pension. 6. Learned counsel for the petitioner submitted that the approach made by the respondents to deny the grant of pension under the State scheme is totally incorrect and illegal, in that the widow of a freedom fighter is denied pension for technical reasons alone. Learned counsel relied on Ext.P14 judgment in O.P. No.10325/1988, passed in a similar case filed by another prominent freedom fighter, Shri Arayakandi Achuthan wherein a similar objection raised by the respondents to dispute the claim was criticized by this court and this court, on the basis of the certificate issued by Shri K.V. Kunhiraman Nambiar, directed the State Government to recommend the applicant's case for grant of pension under the S.S.S. Pension scheme. Learned counsel specifically relied upon the following observations in the above judgment to contend that the claim is allowable: “...........In the instant case, it is beyond controversy that petitioner remained underground during the period from 21.10.1939 to 6.4.1941 on account of a warrant issued for his arrest by the Executive First Class Magistrate, Tellicherry. The warrant for his arrest was issued for participation in the anti-war propaganda, organised by the Indian National Congress. It is common knowledge that during 1939 to 1941 there was anti-imperialist movement throughout the country at the instance of the Indian National Congress. The certificate issued by the Tahsildar, Tellicherry has been ignored by the Collector and Advisory Committee solely on the ground that the certificate did not make WPC 30909/2003 -5- mention of the particular national movement in which petitioner participated. To say the least, it shows the ignorance of the Collector and the members of the District Advisory Committee about the national movement that was in vogue throughout the country during the said period.” Going by the above observations, this court held that during 1939 to 1941 there was anti-imperialist movement throughout the country at the instance of the Indian National Congress including anti-war propaganda. 7. The respondents have filed a counter affidavit and an additional counter affidavit, wherein the stand taken is that the Anti-war movement took place on 15.9.1940 is not a movement approved by State Government for Kerala Freedom Fighters' Pension. It is averred that there are only 27 movements approved by the State Government to consider for grant of pension under the State scheme. It is further pointed out that the petitioner has not produced the jail records of certifiers to get sanction of pension. It is submitted that since the applicant is not eligible for Kerala Freedom Fighters' pension, she is not eligible for SSS Pension also. 8. The question is whether the approach made by the respondents is correct or not. As far as the non-inclusion of Anti-war movement 1940 held in Thalassery Beach on 15.9.1940, it is seen from the list of movements that the said movement is not included among the movements recognised for grant of State pension. But, Anti-imperialistic procession held on WPC 30909/2003 -6- 12.12.1946 at Kankole is one approved by the State Government to grant the State pension. Ext.P13 is a Press report showing details of the Anti-war movement held on 15.9.1940. The police opened fire and two participants in the rally, viz. Shri Abu and Shri Chathukutty died in the said police firing and injuries were caused to several persons. The name of Shri Kuniyil Krishnan has also been mentioned as one of the senior leaders who had participated in the movement along with late Shri Damodarn and others. It is also reported that even though so many freedom fighters who participated in the movement were able to get pension, the petitioner herein alone is denied. Mention is also made about the raids conducted by British police in his residence, causing loss and damage. 9. The question is whether the attitude taken in the matter is correct or not. Going by the description of the movement, it is clear that the Antiwar demonstration held in 1940 in Thalassery Beach was one against the anti-imperialistic war against the British Government and hence was part of the freedom movement under the leadership of Indian National Congress. The fact that two participants died due to police firing and several others have sustained injuries, shows that it was one of the important movements. In fact, when the details about the movement and the other aspects are available historically, it is not understandable as to why the said movement WPC 30909/2003 -7- is not recognised for grant of pension. It is in that context the observations made by this court in Ext.P14 judgment have to be considered. His Lordship was pleased to hold that “it is common knowledge that during 1939 to 1941 there was anti-imperialist movement throughout the country at the instance of the Indian National Congress.” Therefore, according to me, the Government should have initiated steps to recognise Anti-war movement held in 1940 at Thalassery Beach for the purpose of grant of State pension, rather than clinging on technicalities. Why the same has not been recognised, is not explained in the counter affidavits. Such movements where the freedom fighters had to die due to police firing and several others had sustained injuries, ought to have been recognised. It is also not disputed that Shri Kuniyil Krishnan, a prominent freedom fighter was also one of the accused in the said case who was apprehended and put in different jails. Hence, the certificate issued by him ought to have been accepted, even without production of other documents like warrant of arrest. The Government cannot plead that it is not in possession of historical details of these movements and it cannot also take such an attitude against the widow of a prominent freedom fighter whose underground sufferings have been certified by prominent freedom fighters who themselves had been recipients of State pension and Central pension. Even after Ext.P14 WPC 30909/2003 -8- judgment, it is surprising as to why the Government has not bestowed its attention for recognising the Anti-war movement in 1940 as part of the freedom movement. The findings therein are binding on it. 10. The next aspect is the non production of convict registers and other details of the certifiers. The Honourable Supreme Court in **R. Narayanan v. Union of India** (AIR 1990 SC 746) in similar circumstances, held that no one can really expect official records to have been preserved for a period of 40 years to prove the treatment given to the claimant in that case for the injuries sustained by him during the freedom struggle and the rejection of the claim on that basis, is not correct. Their Lordships held in paragraph 10 as follows: “The Scheme has been formulated with a view to acknowledge the services rendered to the country by patriotic citizens during the freedom movement and who had suffered at the hands of the British Rules in one way or the other and to compensate them in some measure for their sacrifices for the sake of the country. The respondents are therefore not justified in refusing to grant pension to the appellant under clause (e) of the Scheme on the ground that the permanent incapacitation suffered by him does not satisfy the requirements of clause (e) of the Scheme.” In a later decision of the Apex Court reported in **Mukund Lal Bhandari v.** **Union of India** (AIR 1993 SC 2127) the responsibility of the Government to find out freedom fighters and to give solace to them, has been WPC 30909/2003 -9- emphasised. The following findings in paragraph 4 are apt for the purpose of this case also: “It is common knowledge that those who participated in the freedom struggle either at the national level or in the erstwhile Nizam State, are scattered all over the country and most of them may even be inhabiting the remotest parts of the rural areas. What is more, almost all of them must have now grown pretty old, if they are alive. Where the freedom fighters are not alive and their widows and the unmarried daughters have to prefer claims, the position may still be worse with regard to their knowledge of the prescribed date. What is more, if the Scheme has been introduced with the genuine desire to assist and honour those who had given the best part of their life for the country, it ill behoves the Government to raise pleas of limitation against such claims. In fact, the Government, if it is possible for them to do so, should find out the freedom fighters or their dependents and approach them with the pension instead of requiring them to make applications for the same. That would be the true spirit of working out such Schemes. Hence, whatever the date on which the claimants make the applications, the benefit should be made available to them. The date prescribed in any part or future notice inviting the claims should be regarded more as a matter of administrative convenience than as a rigid time-limit.” It is, therefore, axiomatic that the dependent of a freedom fighter should not be shown the door by clinging on technicalities and want of official records. They have to be treated with honour and respect. 11. In this case, it is clear from the certificates of the prominent certifiers that they are recipients of Central Freedom Fighters Pension and State Freedom Fighters Pension. The orders under which they have been granted pension, are clearly mentioned in Exts.P3, P4 and P5. It is clear WPC 30909/2003 -10- from the N.A.R.C. issued from the various offices that the official records are not available. When the details about the certifiers are well known and are covered by the orders of grant of pension to them itself, it is not proper to reject the claim of the dependent of a freedom fighter for want of copies of official records relating to them. Those orders can be verified by Government. The petitioner is unable to produce the same since the records are not available. Therefore, according to me, as held by the Apex Court in R. Narayanan's case (AIR 1990 SC 746), since records are not available, merely on that ground, pension cannot be denied. 12. This is a case where the sufferings of the petitioner's late husband have been clearly certified by the prominent freedom fighters who have also been sanctioned pension for their part in the movements concerned. The respondents should have acted in a more responsible manner to conduct local enquiries as to the details of the sufferings of the petitioner's late husband and get details of the case in which he was involved, as the said details are clearly mentioned in the certificate issued by Shri Kuniyil Krishnan also. Rather than directing the local officers to make such enquiries and send reports, the attitude taken to deny the claim on the ground of non production of the records, is to be deprecated, especially in the light of the observations of the Apex Court in Mukund Lal Bhandari's WPC 30909/2003 -11- case (AIR 1993 SC 2127). 13. Therefore, as far as this case is concerned, the Government should bestow its attention to the crucial aspect of granting recognition to the Anti-war movement which culminated in the death of two freedom fighters on 15.9.1940 at Thalassery Beach and causing injuries to several others like the petitioner's husband. Therefore, I quash Exts.P6 and P12. The first respondent is directed to consider recognition of 'Anti-war Demonstration' held on 15.9.1940 at Tellicherry Beach as part of Freedom Movement, for the purpose of grant of Freedom Fighters' Pension in the light of Ext.P14 judgment, and the observations made herein. The first respondent is further directed to consider the claim of the petitioner for grant of pension in the light of the binding decision of this court in Ext.P14 judgment and in the light of the certificates produced by her and not to reject the same on technicalities. The above shall be done within a period of four months from the date of production of a copy of this judgment. The original petition is allowed as above. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**