Smt. Rakhamabat Annappa Gurav vs The State Of Maharashtra And Ors.
2004 Latest Caselaw 975 Bom

JUDGMENT

S.U. Kamdar, J.

1. The petitioner in the present petition is seeking a direction from this Court that the petitioner should be granted freedom fighters pension and denial thereof by the respondent by their order dated 29.1.2003 is illegal and therefore should be quashed and set aside. Some of the material facts of the present case are as under :-

2. The petitioner claims to be a freedom fighter because of her participation in Quit India Movement in the year 1942. It is the further case of the petitioner that she was also arrested on 11.7.1945.

3. On 15.1.1985, the petitioner made an application for grant of freedom fighter's pension on the ground that she has participated in the Quit India Movement in the year 1942 and was arrested on 11.7.1945 and was released on 2.2.1946. On 16.1.1995, a Retired Police Inspector issued a certificate that on 11.7.1945 the petitioner was arrested. On 1.5.1995, the petitioner once again addressed another letter to District Collector, Sangli requesting him to consider her case for grant of pension under the Freedom Fighters Pension Scheme. On 12.5.1995, a reminder was sent. Advocate Rajbhau Zarkar claiming to be a member of the Freedom Fighter Association addressed a letter dated 28.6.1995 to the 3rd respondent namely, the Collector, Sangli to scrutinise the application of the petitioner for pension paper. On 12.8.995, once again a request was made by the petitioner to consider her case. On 17.2.1999, the State Government called upon the petitioner to provide for necessary documents to consider her case for grant of pension. On 12.7.2000, the petitioner submitted various documents in reply to the State Government's aforesaid letter. On 8.8.2000, the petitioner was informed that her case is under consideration. On 24.10.2000, Tahasildar, Jat issued a letter to the petitioner inter alia stating therein that the Jail register for the year 1945 to 1946 was not available and accordingly request for issuance of a certificate in favour of the petitioner indicating that she was arrested during the said period cannot be granted. On 22.3.2001, the petitioner once again asked the respondent to sanction the pension as according to the petitioner she has complied with all the requirements.

4. Since there was no response, the petitioner filed a writ petition in this Hon'ble court being Writ Petition No. 5213 of 2002 seeking mandatory direction to the Government that they should decide the representation and application of the petitioner for grant of pension. In the said writ petition, the petitioner also inter alia stated that Gaurav Samittee has given a recommendation for grant of pension to the petitioner. It was further stated that inspite of the said recommendation made by the Gaurav Samittee and that the petitioner having produced all the relevant documents, the case of the petitioner was not decided by the State Government. On 24.9.2002, the Division Bench of this Court directed the Government to decide the petitioner's case as expeditiously as possible and in any way within a period of eight weeks therefrom. On 29.1.2003, a Desk Officer by a communication rejected the claim of the petitioner for pension inter alia on the ground that the petitioner has failed to establish that she is eligible for grant of the pension.

5. We have heard the learned counsel for the petitioner. The documents which are produced by the petitioner do not establish that the petitioner has in fact participated in the Freedom Struggle. The affidavit filed by one of the so called freedom fighters states that the petitioner used to supply food to the freedom fighters when they were in jail whereas another affidavit states that the petitioner was arrested on 11.7.1945 but gives no details for what charge and in which jail she was kept. The documents produced by the petitioner are totally insufficient to establish the claim of the petitioner for the purpose of freedom fighter's pension.

6. The learned counsel for the petitioner however strenuously relied upon a judgment of the Division Bench of this Court in the case of Raghunath Gajanan Waingankar v. State of Maharashtra and Ors. . and inter alia contended that once there is a recommendation by Guarav Samiti for grant of pension and certifying that the petitioner has participated in Freedom Struggle, the petitioner is automatically entitled to grant of pension and rejection thereof by the authorities is totally illegal and without jurisdiction. The aforesaid Division Bench judgment, inter alia states as under :-

"3. We have heard the learned Counsel for both the sides. We have carefully gone through the proceedings. We are rather' shocked to read the impugned order passed by the Desk Officer of the State Government that the petitioner had not complied with the criteria prescribed for the freedom fighters' pension. According to us, the Desk Officer of the State Government had no power to sit in appeal over the unanimous decision of the Mumbai Upanagar Zilla Gaurav Samiti which had unanimously recommended the case of the petitioner after scrutinising the material before it, that the petitioner had participated in the freedom struggle of Goa. The Committee has accepted the case of the petitioner in toto and has further observed that the petitioner had substantiated his case from the circumstantial evidence that he had participated in the Goa liberation movement. The Committee has narrated in detail the material which was placed before it by the petitioner in support of his case. According to us it was, therefore, not open for the Desk Officer to sit in appeal or revision on the unanimous decision of the Committee. Even on the question of criteria, we are satisfied that the petitioner has satisfied the required conditions to get the pension under the scheme. According to use there is preponderance of material in support of the petitioner, The committee has also considered the whole material and has unanimously recommended the case of the petitioner, in the circumstances, the impugned order of the Desk Officer dated 23rd July 2003 is totally illegal, improper and without jurisdiction. The Desk Officer should have simply accepted the unanimous recommendation of the Committee and ought to have sanctioned pension to the petitioner."

7. We have considered the judgment of the Division Bench of the High Court. We find that the judgment of the Division bench holding that once there is a recommendation of the Gaurav Samittee then automatically the petitioner is entitled to grant of freedom fighter's pension is not correct principally because the attention of the Division Bench of this Court was not drawn to a G.R. issued by the government pertaining to the said Gaurav Samiti and its role being No. LGS-1090/D.F.F.O/S.C.-l/FF, dated 22.5.1990. The said G.R. makes it clear that the report of the Gaurav Samiti is only recommendatory and not binding on the Government. The government is required to take its own decision after considering the documents produced by the person for grant of any such benefit. The said para. 2 of the said G.R. reads as under :-

"Government now further orders that terms of reference of reconstitute District Gaurav Samitis shall be as under-

A) To give opinion as per Government Rules on the applications received from district, seeking pension or other facilities being freedom fighter.

B) To help for immediate disposal of applications, made as per rule, for grant by the freedom fighters or their heirs for medical treatment, daughter's marriage or by widows or widowers of such freedom fighters, after their death.

C) To take proper steps and make efforts to see that children of freedom fighters shall get job as per available priority in service.

D) To hold gatherings of freedom fighters.

E) To take proper measures to help freedom fighters, to give guidance to them as well as to solve their genuine difficulties."

8. In view of the fact that attention was not drawn of the Division Bench to the said G.R. which specifically provides role of Gaurav Samittee only as recommendatory body the view taken by the Division Bench in the case of Raghunath Gajanan Waingankar v. State of Maharashtra and Ors. (supra), is erroneous, we are of the view that the decision of the Division Bench does not propound a correct proposition of law and is per incurium as it has failed to notice the said resolution dated 22.5.1990 and its express provision that Gaurav Samiti's recommendation is only of recommendatory nature and the same is not binding on authorities. We, therefore, hold that the Division Bench judgment is not a correct proposition of law and the same is per incurium.

7. In light of the aforesaid view we have taken, we are of the opinion that the petitioner is not entitled to any relief in the present petition. The petitioner has failed to establish her case on merits. The petitioner has also failed to show documentary evidence in support of her claim. In view of the aforesaid, the present petition is liable to be dismissed. We dismiss the same accordingly. However, there shall be no order as to costs.

Parties to act on an ordinary copy of this order duly authenticated by the Private Secretary of this Court.