TMI Blog1962 (1) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... mellitus. In the view of the medical board the disability had aggravated by was service and the degree of disablement was assessed at 50 per cent incapable of improvement . He was granted provisional pension described as a pending enquiry award at ₹ 88/8/- with effect from 8th of November, 1946. Subsequently the pension was made a permanent disability pension also with effect from 8th of November, 1946, but the amount was reduced to ₹ 82/8/-. The petitioner was given some other employment till 1953 in the Delhi Ordnance Depot. By letter dated 23rd of March, 1955, the petitioner was informed that the pension granted to him stood cancelled and it was explained subsequently that the board had re-assessed disablemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht under Article 31 for whose protection a wit under Article 226 could be entertained. The petitioner had been in service since 1939 and became entitled, according to the first medical board, to the disability pension which on subsequent examination by another board came to have been assessed wrongly. Mr. Jindra Lal on behalf of the respondent has contended that there is no statutory right to receive a pension and the question whether it constitutes property or no becomes an irrelevant matter. My attention has been invited to Annexure R/1, which reproduced a copy of the Army Instruction 388/50 where with Rule 374 of the Pension Regulations for the Army in India was revised. Under this revised instruction, which is of the year 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was permissible it could have been in accordance with the rules and certainly no order could have been made unilaterally without the petitioner being afforded in opportunity to show cause against it. Under Art. 226 of the Constitution the power of this Court extends to the granting of relief which has the effect of enforcing the right of an individual conferred on him by Part III of the Constitution. Now under Art. 31(1) of Part III of the Constitution it is solemnly stated that no person shall be deprived of his property save by authority of law . Once it is assumed that the petitioner had a right of property to be protected there could be no escape from the conclusion that he has been deprived of it in the most arbitrary manner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... How can it be said that these findings of the board were the outcome of some misunderstanding or that the disability was only 20 per cent not attributable to or aggravated by service factors? The decision taken by the authorities is hit by the famous pronouncement of Lord Atkin in Eshugbayi Eleko v. Officer Administering Government of Nigeria AIR 1931 PC 248, at p. 251 that the executive. can only act in pursuance of the powers given at it by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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