Union Of India & Another vs Sadhu Saran Shahi
2009 Latest Caselaw 53 Del

5
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     LPA 1055/2007
      UOI & ANR.            ..... Appellant
                    Through Mr. Sanjeev Sachdeva, Adv.
                             Mr. Preet Pal Singh, Adv.

              versus
      SADHU SARAN SHAHI       ... Respondent
                   Through
      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE SANJIV KHANNA
            ORDER

% 12.01.2009

1. Union of India has filed the present Letters Patent Appeal against the

judgment dated 13th March, 2007, allowing the writ petition and granting

freedom fighters' pension under the Swatantra Sainik Samman Pension

Scheme, 1980.

2. Counsel for the appellant has drawn our attention to the certificate of

one Mr. Basawan Singh, who had admittedly spent 15 years in Jail during

the freedom struggle but submitted that the said certificate is not a relevant

evidence for showing that the respondent No.1 was a freedom fighter and

had remained underground to avoid arrest for participating in the freedom

struggle. Our attention was drawn to Clause 9 of the said scheme in

support of the said contention.

3. Clause 9 of the said scheme specifically refers to evidence required to be submitted by an applicant, who makes a claim for freedom fighters

pension. The heading of the Clause itself indicates how and what evidence

should be submitted by the applicant to prove his/her claim. Sub Clause (b)

deals with evidence required to be introduced by an applicant, who had

remained underground.

4. Requirement to Sub Clause b to clause 9 reads as under:-

"9. HOW TO PROVE TO CLAIMS (EVIDENCE REQUIRED):-

The applicant should furnish the documents indicated below whichever is applicable.

XXXX

b(ii). Certificates from Veteran Freedom Fighters who had themselves undergone imprisonment for five years or more if the official records are not forthcoming due to their non-availability."

5. Respondent No.1 herein has produced certificate issued by Mr. Basawan Singh, admittedly a freedom fighter, who had spent 15 years in Jail. It is not disputed that Mr. Basawan Singh is a veteran freedom fighter and is qualified to issue the said certificate relied upon by the respondent No.1. As per the scheme itself, the said certificate is an evidence, which proves the claim of the applicant. The appellants, while framing the scheme were conscious of the fact that at this distinct point of time, a liberal and not a technical approach is required and, therefore, certificates issued by veteran freedom fighters, who have spent more than 5 years in Jail, should be accepted as correct. The respondent No.1 has satisfied the said requirement.

6. There is also evidence on record that an FIR and arrest warrants

were issued against the respondent No.1 and these were

cancelled/discharged in the year 1948 under Section 494 of the Code of

Criminal Procedure, 1898. Counsel for the appellants submitted that all

political FIRs for participation in freedom struggle were cancelled in the

year 1946. This argument of the appellants cannot be accepted for failure

of the British Government or interim Government to cancel FIRs or arrest

warrants on or before 1946, cannot be a ground to deny freedom fighters'

pension. Admittedly the FIR was registered in 1943, when freedom struggle

was at its peak. Mr. Basawan Singh, a freedom fighter has confirmed that

respondent No.1 had gone underground to avoid arrest.

7. The fact that Mr. Basawan Singh was himself under arrest when the

respondent No.1 had gone underground cannot be a ground to disbelieve

the said certificate. Mr. Basawan Singh must have information and

knowledge about activities of the respondent No.1 and has, therefore,

issued the said certificate. Mr. Basawan Singh could have come to know

about the political case against the respondent No. 1 and the fact that he

had gone underground from a number of sources, including personal

meeting with the respondent no.1., information from friends etc. It will not be proper to speculate and hold that the certificate is false. Clause 9 cannot

be read in a technical manner. Learned Single Judge has referred to

judgment of the Supreme Court in Gurdial Singh Vs. Union of India &

Ors, reported in (2001) 8 SCC 8 in which it has been held that standard of

proof required in such cases is not such as is required in criminal cases or

civil cases, which are adjudicated upon on the basis of evidence of parties

and on the basis of rival contentions. Endeavour should be to mitigate the

suffering.

8. Keeping all these aspects in mind, we do not find any merit in this

appeal and the same is dismissed.

CHIEF JUSTICE

SANJIV KHANNA, J.

JANUARY 12, 2009 NA/VKR/P