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    Balvinder Singh Mahal Petitioner v. Union Of India And Another S

    1

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

    CWP No.: 2569 of 2012

    Date of Decision: 10.08.2017

    ______________________________________________________________________ .

    Balvinder Singh Mahal ….Petitioner. Vs. P

    Union of India and another …..R

    Coram: H espond . ents.

    The Hon'ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 Yes. f

    For the petitioner: Ms. Tim Saran , A o dvocate. For the respondents: Mr. An r grez t Kapoor, Advocate, vice Mr. Ashok Sharma, ASGI, for respondent No. 1.

    M u r. Vikram Thakur, Deputy Advocate o General, for respondent No. 2. Ajay Mohan Goel, Judge (Oral):

    B C y way of this writ petition, the petitioner has prayed for the following reliefs: h

    (i) That the respondents may kindly be g

    directed to grant the status of freedom fighter i

    family to the petitioner and his family, so that H

    the stigma of so called deserter may be removed. (ii) Directing the respondents to consider the case of the father of the petitioner for granting all benefits being extended to all freedom fighters under the freedom fighters policy, which has been adopted and followed by the State of

    Himachal Pradesh and is applicable to all

    Whether the reporters of the local papers may be allowed to see the Judgment?

    2

    freedom fighters for the purpose of pension/pensionary benefits/reservation for the wards of freedom fighters and other benefits etc.

    (iii) Any other order as this Hon'ble Court may .

    deem fit, just and proper in the facts and circumstances of the present case, may be P

    passed in the interest of justice. .

    (iv) Entire record pertaining to instant case may please be summoned and examinedH, which would help this Hon'ble Court to f arri ve at just conclusion.

    (v) The writ petition t ma y o kindly be allowed with costs."

    2. Case of the pe u tition r er is that late Havaldar Sh. Harnam Singh died in the year, 2005 and his wife thereafter died in the year, 2008 and petitioner is one of o their legal heirs/representatives. As per the

    petitioner, his f ath C er served in the British Army with full devotion, honesty and dedication and he was also given out of turn promotion as Havaldar. A h s per the petitioner, his father also took active part in freedom str i ug g gle and for the said reason, he was ordered to be discharged by the then Brigade Commander of Rajmak Brigade of the British Army. It is

    H further averred in the petition that father of the petitioner fought the second World War till his forcible discharge from the British Army. Grievance raised in the petition is that unfortunately father of the petitioner is known as a deserter in the local area despite the fact that he

    was forcibly discharged from the British Army on account of his activities

    in the freedom struggle of the Nation. In these circumstances, this writ

    3

    petition has been filed praying for the reliefs already mentioned hereinabove.

    3. In the reply so filed to the petition by respondent No. 2, the .

    stand taken by the State is that father of the petitioner was recruited in British Army as a Soldier and he retired from the post of Havaldar . aPnd at no point of time, he in any manner participated in National Freedom Struggle. It is further mentioned in the reply that father ofH the petitioner fought Second World War as a Soldier of the B o ritish f Army, which had no connection with the freedom moveme t nt of India. It further finds mentioned in the reply that representation filed by the petitioner to extend to him the benefit of free u dom f r ighter already stood rejected by the State on the ground that his father was ineligible to be declared as a freedom fighter in accordance with the Swatantrata Sainik Samman

    Pension Scheme, 19 C 80. o4. I ha ve heard the learned counsel for the parties and have also gone h through the pleadings as well as documents appended along g with the petition. 5. i

    Annexure P-5 is the order of discharge of the father of the H petitioner issued by Brigade Commander of Rajmak Brigade dated 01.06.1945. A perusal of the same demonstrates that the father of the petitioner was enrolled with the British Army on 13.11.1932 and he stood discharged from the same on 01.06.1945. It is nowhere mentioned in this discharge certificate that the said discharge of the father of the petitioner

    was on account of his having participated in the freedom struggle of the

    4

    country. On the other hand, a perusal of the discharge certificate demonstrates that it finds mentioned therein that the bearer's conduct, i.e. conduct of the father of the petitioner and character while with the .

    Army had been exemplary. Now, whether or not the father of the petitioner participated in the freedom struggle of India and whethe . r oPr not he was discharged from the Army on account of h is H alleged active participation in the freedom struggle of India are disputed questions of fact, which cannot be gone into in a petition so o filed f under Article 226 of the Constitution of India.

    6. Learned counsel for the p t eti tioner could not give any

    satisfactory answer as to why th u e fath r er of the petitioner had not applied for being conferred the status of a freedom fighter during his life time, as it is evident from the av o erments made in the writ petition that Shri Harnam Singh, i.e. father of the petitioner, was alive till 2005. In fact, this Court can r ea C d in between lines in order to infer that this entire exercise ha h s been undertaken by the petitioner to take benefit of the conce g ssions which are accruable to the kith and kin of freedom fighters. Ev i en otherwise, in my considered view, this Court can not either confer H the status of freedom fighter upon the family of the petitioner, as has been prayed for, nor any direction can be issued by this Court that the stigma of so called deserter may be removed from the name of his father. By no stretch of imagination this Court can issue a mandamus to the inhabitants of the native place of the petitioner directing them not to allegedly treat the father of the petitioner as a deserter. Passing any such

    5

    order evidently is beyond the jurisdiction so conferred upon this Court by the Constitution of India under Article 226 of the same.

    7. Accordingly, as there is no merit in the petition, the same is .

    therefore dismissed. Miscellaneous applications, if any, also . s P tand disposed of. No order as to costs.

    (Ajay M ohan Goel) Judge H August 10, 2017 (bhupender)

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    Balvinder Singh Mahal Petitioner v. Union Of India And Another S
    (Aug 10, 2017)