State Of Uttarakhand vs Hema Devi And Others
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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

          THE CHIEF JUSTICE SHRI VIPIN SANGHI

                            AND

         JUSTICE SHRI RAMESH CHANDRA KHULBE

                   Dated: 28TH JULY, 2022

           (1) SPECIAL APPEAL No.100 OF 2022

State of Uttarakhand                           ...... Appellant

                            Vs.

Hema Devi and others                        ...... Respondents

(2) SPECIAL APPEAL No.13 OF 2022

State of Uttarakhand and others ...... Appellants

Vs.

Leela Devi and others ...... Respondents

(3) SPECIAL APPEAL No.14 OF 2022

State of Uttarakhand and others ...... Appellants

Vs.

Jamuna Devi and others ...... Respondents

(4) SPECIAL APPEAL No.15 OF 2022

State of Uttarakhand and others ...... Appellants

Vs.

Rama Bhandari and others ...... Respondents

(5) SPECIAL APPEAL No.16 OF 2022

State of Uttarakhand and others ...... Appellants

Vs.

Leela Syatari and others ...... Respondents (6) SPECIAL APPEAL No.17 OF 2022

State of Uttarakhand and others ...... Appellants

Vs.

Padma Negi and others ...... Respondents

(7) SPECIAL APPEAL No.18 OF 2022

State of Uttarakhand and others ...... Appellants

Vs.

Aneeta Devi and others ...... Respondents And

(8) SPECIAL APPEAL No.122 OF 2022

State of Uttarakhand and others ...... Appellants

Vs.

Basanti Devi and others ...... Respondents

Presence: -

Shri J.P. Joshi, learned Addl. A.G. assisted by Mr. Anil K. Bisht, learned Addl. CSC and Mr. BPS Mer, learned B.H. for the State. Shri Rakesh Thapliyal, learned senior counsel assisted by Shri Rajesh Sharma and Manoj Kumar for the Union of India.

Shri I.D. Paliwal, learned Standing Counsel for the State of U.P.

JUDGMENT: (Per Shri Vipin Sanghi, Chief Justice)

These special appeals have been preferred by the State of Uttarakhand to assail the judgments rendered by the learned Single Judge in the writ petitions preferred by the respondent/petitioners to claim ex gratia on account of the martyrdom of the next of kin of claimants. In Special Appeal Nos.13, 14, 15, 16, 17 and 18 of 2022, the challenge is to the judgment rendered by a learned Single Judge of this Court in a batch of writ petitions, wherein, the private respondents were the writ petitioners, decided on 06.08.2021. In Special Appeal Nos.100 and 122 of 2022, the challenge is to a short order passed by the learned

Single Judge, allowing the claims as aforesaid, vide order dated 31.08.2021. The learned Single Judge, while passing the short order, has placed reliance on his earlier judgment dated 06.08.2021 rendered in Writ Petition (M/S) 511 of 2021 "Jamuna Devi vs. State of Uttarkhand and others.

2. The dates on which the next of kin of the respondents have attained martyrdom is prior to 05.03.2014. This date is relevant for the reasons which we would unfold shortly.

3. On 05.03.2014, the State of Uttarakhand issued a Government Order declaring that the State would pay ex gratia upto Rs.10,00,000/- as a lump sum amount to the widow, parents and children of the soldier, who has attained martyrdom in several wars and borders skirmishes. An issue arose whether the State policy of the Government to grant ex gratia was prospective and effective from 05.03.2014 onwards, or whether it applied to such cases where the soldiers attained martyrdom even prior to 05.03.2014. The admitted position is that this issue was finally settled by the Supreme Court in "State of Uttarakhand vs. Manju Devi, (SLP No.030176 of 2018)." The Supreme Court dismissed the said Special Leave Petition preferred by the State of Uttarakhand against the decision rendered by the Division Bench of this Court in Special Appeal No.399 of 2018, holding that the said policy of the Government of Uttarakhand, contained in the G.O dated 05.03.2014, was applicable to even such cases where the soldier attained martyrdom prior to 05.03.2014.

4. When the respondents preferred their respective writ petitions claiming benefit of the said G.O. dated 05.03.2014, the State of Uttarakhand, filed its counter affidavit, contending that the writ petitioners were not

entitled to the said relief on the premise that the State Legislature had passed an enactment called the "Uttarakhand Martyr's Dependent Ex gratia Grant Act, 2020 (Uttarakhand Act No.05 of 2021)" which, according to the State, disentitled the widows/dependents of Martyrs of the State of Uttarakhand, who got martyred prior to 05.03.2014, the release of any ex gratia amount. The learned Single Judge, by the impugned detailed judgment dated 06.08.2021, rejected the said submission of the appellant and allowed the writ petitions.

5. The submission of learned counsel for the appellant before us is that on a reading of Section 1(2) of the aforesaid Act, as also Section 8 of the said Act, it is clear that the claim for ex gratia by the widow or dependents of Martyrs, who got martyred before 05.03.2014, could not be sustained. Section 1 and Section 8 of the said Act, which are relied upon by the appellant, reads as follows: -

"Section 1:- This Act may be called the Uttarakhand Martyr's Dependent Ex-Gratia Act,2020.

(2) It shall be applicable to widows/ dependents of such martyrs of war, borders skirmishes and internal security duties serving in Defence Forces or Para Military Forces who attained martyrdom in said operations on or after 05.03.2014 and are permanent residents of the State of Uttarakhand.

(3) It shall come into force at once.

Section 8:- Notwithstanding anything contrary contained in any other Act/judgment/ decree/order or directions of any Court, the provisions of this Act shall be valid and effective."

6. Section 1(2) of the Act states that it shall be applicable to widows/dependents of such martyrs of war, borders skirmishes and internal security duties serving in Defence Forces or Para Military Forces who attained

martyrdom in said operations on or after 05.03.2014 and are permanent residents of the State of Uttarakhand. The submission of the appellant is that since the benefit under the Act is restricted to those cases where martyrdom was attained on or after 05.03.2014, by implication, no ex gratia is admissible in respect of cases where martyrdom was attained prior to 05.03.2014.

7. According to the learned counsel for the appellant, the judgment of this Court in SPA No.399 of 2018 and the order of the Supreme Court dismissing the Special Leave Petition dated 26.11.2018, being contrary to the provisions of Section 1(2) of the Act, do not have any surviving validity and effect after the enactment of the aforesaid Act.

8. We have heard learned counsels and considered the submissions and we find no merit in the aforesaid submissions of learned counsel for the appellant. A plain reading of Section 1(2) of the Act shows that it applies to cases where martyrdom was attained on or after 05.03.2014, provided other conditions with regard to permanent residence in State of Uttarakhand etc. are fulfilled. The Act is silent about those cases where martyrdom was attained prior to 05.03.2014. Pertinently the G.O. dated 05.03.2014, which has already been interpreted by the Division Bench of this Court, and which interpretation has been accepted even by the Supreme Court, is still in force and has not been rescinded either by the Government on its own or overridden and repealed by the aforesaid Act. Neither Section 1(2) nor any other provision of the Act suggests that the said G.O. dated 05.03.2014 ceased to be of effect upon the enactment of the aforesaid Act by the State Legislature. Since the martyrdom in the case of the respondent-petitioners was

attained prior to 05.03.2014, their cases are not covered by the provision of the Act. However, that does not mean that their claims would not be examined with reference to a governmental policy contained in the G.O. dated 05.03.2014 which, as we have stated above, continues to remain in operation.

9. Aforesaid being the position, the claims of the respondent, in our view, were rightly allowed by reference to the G.O. dated 05.03.2014.

10. Reliance placed on Section 8 is also misplaced. Section 8 states that notwithstanding anything contrary contained in any other Act/judgment/decree/order or directions of any Court, the provisions of this Act shall be valid and effective. Since the Act applies to cases of martyrdom after 05.03.2014, the judgments of this Court, and the order passed by the Supreme Court holding that the G.O dated 05.03.2014 has retrospective effect, cannot be said to be contrary to any provision of the Act. Therefore, by force of Section 8 of the Act, the effect of the judgments of this Court, and the order of the Supreme Court, as referred to above, does not stand nullified.

11. The learned counsel for the appellant has also raised a grievance with regard to certain observations made in the impugned judgment dated 06.08.2021. Since these appeals have been heard and are being decided today from the said judgment, the said judgment merges in our judgment being rendered today. Anything held by the learned Single Judge in the impugned judgment dated 06.08.2021, which is not in consonance with our judgment, shall have no force.

12. All the appeals are disposed of in the aforesaid terms.

13. Pending application, if any, stands disposed of accordingly.

___________________ VIPIN SANGHI, C.J.

______________ RAMESH CHANDRA KHULBE, J.

Dated: 28th July, 2022 R.Bisht