P. BHASKARAN v. STATE OF KERALA AND DISTRICT COLLECTOR, ALAPPUZHA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929** ## **WP(C).No. 1180 of 2006(M)** **------------------------------------** **PETITIONER:** **------------------** **P.BHASKARAN, KALALAYA, NEHRU TROPHY WARD, AVALUKUNNU.P.O, ALAPPUZHA.** **BY ADV. SRI.J.OM PRAKASH** **RESPONDENTS:** **-----------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVT., DEPARTMENT OF GENERAL ADMINISTRATION, SECRETARIAT, THIRUVANANTHAPURAM.** ## **2. THE DISTRICT COLLECTOR,** **ALAPPUZHA.** **BY GOVERNMENT PLEADER SMT.T.B.RAMANI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.1180/2006** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXT.P1:- COPY OF THE APPLICATION AND THE ORDER IN CASE NO.P.E. 7/1122 OF THE CJM COURT, ALAPPUZHA DT. 16.4.98.** **EXT.P2:- COPY OF THE ORDER OF THE IST RESPONDENT DT. 17.5.2003.** **EXT.P3:- COPY OF THE CERTIFICATE ISSUED BY B,K,CHAKRAPANI DT. 20.6.04.** **EXT.4:- COPY OF THE ORDER OF THE 2ND RESPONDENT DT. 5.12.73 GRANTING STATE PENSION.** **EXT.P5:- COPY OF THE ORDER OF THE ORDER SECRETARY TO GOVERNMENT OF INDIA DT. 18.6.03.** **EXT.P6:- COPY OF THE TRUE EXTRACT OF THE CONVICT REGISTER RELATING TO H.K. CHAKRAPANI DT. NIL OF THE THIRUVANANTHAPURAM CENTRAL JAIL.** **EXT.P7:- COPY OF THE ORDER OF THE IST REPORT DT. 7.9.05.** _**/**_ **TRUE COPY/** ## **P.A. TO JUDGE** **tss** ## **T.R.RAMACHANDRAN NAIR, J.** **= = = = = = = = = = = = = = =** ## **WP(C).No.1180 OF 2006-M.** **= = = = = = = = = = = = = = =** **Dated this the 4[th] day of January, 2008.** ## **J U D G M E N T** **This writ petitioner is filed seeking to quash Ext.P7 by which the application of the petitioner for grant of pension under the Kerala Freedom Fighters Pension Scheme was rejected. The case of the petitioner is that the petitioner was an active participant of the Punnapra Vayalar Struggle and he was arrayed as an accused before the Special Magistrate Court, Alappuzha in Case No.P.E.7/1122(M.E.) and the court issued a non-bailable warrant against him. In order to evade arrest the petitioner went underground for more than six months from October, 1946 to May, 1947. As a result of which the court declared the petitioner as a proclaimed offender.** **2. The application was initially rejected as per Ext.P2. Therein the grounds for rejection were that the certificate issued by Sri.Kunjan Sukumarn and Sri.S.Damodaran are not in proper form and that evidence based on official records have not been produced.** **WP(C).No.1180 OF 2006-M.** **2** **Thereafter, the petitioner produced Ext.P3 which is a personal knowledge certificate issued by Sri.H.K.Chakrapani in the proper form. Ext.P4 is the proceedings of the District Collector granting pension to Sri.H.K.Chakrapani, the certifier. The certifier is the recipient of Swatantrata Sainik Samman Pension under the Central Government which is evidenced by Ext.P5. Ext.P6 is the true extract of the convict register of Central Prison, Thiruvananthapuram relating to the certifier Sri.H.K.Chakrapani. But by Ext.P7 again on similar grounds that no official records have been produced, the application was rejected.** **3. The petitioner submits that he has produced Ext.P1 nonavailability of record certificate issued by the Chief Judicial Magistrate Court, Alappuzha wherein an application for copy of the jail records in Case No.P.E.7/122 was rejected as records are not available. In the light of Ext.P1 and the personal knowledge certificate issued by Sri.H.K.Chakrapani Ext.P3, the learned counsel submits that the Government should have considered the matter on merits. It is also pointed out that as per the scheme the said documents would be sufficient in the absence of original records from the court. The** **WP(C).No.1180 OF 2006-M.** **3** **petitioner relied upon the judgment of this Court in WP(C). No.33452/2006 wherein also on similar circumstances this Court directed to reconsider the matter.** **4. The respondents have filed a counter-affidavit in this case. In para.6 it is stated that as per the Government Circular No.57183/FFP B1/93/GAD dated 31.12.1993 it was informed that the application received after 31.3.1994 will be considered only on the production of documentary evidence from official records such as warrant of arrest, court records, jail records clearly showing the applicant's sufferings in connection with the freedom struggle. The question is whether the said reasoning adopted by the respondents is correct in the light of the well accepted principles.** **5. Going by the scheme, in the absence of the official records the petitioner is entitled to produce the personal knowledge certificate from a prominent freedom fighter along with the non-availability of record certificate which is sufficient for consideration of application. The circular dated 31.12.1993 cannot defeat the right of the petitioner for grant of pension if he is eligible under the scheme.** **6. A similar question was considered by the Apex Court in the** **WP(C).No.1180 OF 2006-M.** **4** **decisions reported in** _**R.Narayanan v. Union of India**_ **(AIR 1990 SC 746) and in** _**Mukund Lal Bhandari v. Union of India**_ **(AIR 1993 SC 2127). In R.Narayanan v. Union of India (AIR 1990 SC 746), the Hon'ble Supreme Court held that after a long number of years a freedom fighter cannot be compelled to produce official records for consideration of an application for pension. As regards reliance placed on the cut of date provided in the Circular, the said stand also cannot be justified as legal or genuine in view of the decision of the Apex Court. In Mukund Lal Bhandari v. Union of India (AIR 1993 SC 2127) the Apex Court held that the date prescribed in any past or future notice inviting the claims should be regarded more as a matter of administrative convenience than as a rigid time-limit. The relevant findings contained in para.4 which is extracted below:** **“4. As regards the sufficiency of the proof, the Scheme itself mentions the documents which are required to be produced before the Government. It is not possible for this Court to scrutinize the documents which according to the petitioners, they had produced in support of their claim and pronounce upon their genuineness. It is the function of the Government to do so. We would, therefore, direct accordingly.** **As regards the contention that the petitioners had filed their applications after the date prescribed in that behalf, we are afraid that the Government stand is not** **5** **WP(C).No.1180 OF 2006-M.** **justifiable. 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 preferred 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. The Scheme has rightly been renamed in 1985 as the Swatantra Sainik Samman Pension Scheme to accord with its object. We, therefore, cannot countenance the plea of the Government that the claimants would only be entitled to the benefit of the Scheme if they made applications before a particular date notwithstanding that in fact they had suffered the imprisonment and made the sacrifices and were thus otherwise qualified to receive the benefit. We are, therefore, of the view that whatever the date on which the claimants make the applications, the benefit should be made available to them. The date prescribed in any past or future notice inviting the claims, should be regarded more as a matter of administrative convenience than as a rigid timelimit.** **Coming now to the last contention advanced on behalf of the Government, viz., that the benefit of the Scheme should be extended only from the date the claimant produces the required proof of his eligibility to the pension, we are of the view that this contention can be accepted only** **6** **WP(C).No.1180 OF 2006-M.** **partially. There have been cases, as in the present case, where some of the claimants had made their applications but either without the necessary documentary proof or with insufficient proof. It is unreasonable to expect that the freedom fighters and their dependents would be readily in possession of the required documents. In the very nature of things, such documents have to be secured either from the jail records or from persons who have been named in the Scheme to certify the eligibility. Thus the claimants have to rely upon their parties. The records are also quite old. They are bound to take their own time to be available. It is, therefore, unrealistic to expect that the claimants would be in a position to produce documents within a fixed time limit. What is necessary in matters of such claimants is to ascertain the factum of the eligibility. The point of time when it is ascertained, is unimportant. The prescription of a rigid time-limit for the proof of the entitlement in the very nature of things is demeaning to the object of the Scheme. We are, therefore, of the view that neither the date of the application nor the date on which the required proof is furnished should make any difference to the entitlement of the benefit under the Scheme. Hence, once the application is made, even if it is unaccompanied by the requisite eligibility data, the date on which it is made should be accepted as the date of the preferment of the claim whatever the date on which the proof of eligibility is furnished.”** **6. In the light of the above principles the reasons stated in Exts.P2 and P7 that there is delay in submitting the application and that unless the applicant produces official records the application cannot be considered are not justified. Ext.P7 is hence quashed. There will be a direction to the first respondent to consider the application of** **7** **WP(C).No.1180 OF 2006-M.** **the petitioner along with supporting materials on its merit and pass appropriate orders within two months from the date of receipt of a copy of this judgment.** **The writ petition is allowed as above.** **T.R.RAMACHANDRAN NAIR, JUDGE.** **kvs/**