Bombay High Court
Smt. Sushilabai Purushottam ... vs The State Of Maharashtra on 8 December, 2010
Bench: Naresh H. Patil, Shrihari P. Davare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
WRIT PETITION NO. 4497 OF 2007
1 Purushottam Vyankatrao Dehedkar
age 87 years, occ. Nil,
r/o Dahedkarwadi,
District Jalna,
(deceased) through L.Rs.
1(A)
Smt. Sushilabai Purushottam Dehedkar,
age 80 years, occ. Household,
r/o Dahedkarwadi, Old Jalna,
Dist. Jalna,
1(B) Vinayak s/o Purushottam Dehedkar,
age 56 years, occ. service,
r/o as above,
1(C) Arun s/o Purushottam Dehedkar,
age 52 years, occ. Business,
r/o as above,
1(D) Nandkishor s/o Purushottam Dehedkar,
age 50 years, occ. Private Service,
r/o as above,
1(E) Ravikumar s/o Purushottam Dehedkar,
age 47 years, occ. service,
r/o as above,
1(F) Chandrakant s/o Purushottam Dehedkar,
age 45 years, occ. service,
r/o as above. ...Petitioners
::: Downloaded on - 09/06/2013 16:40:59 :::
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VERSUS
1 The State of Maharashtra,
through its Secretary,
General Administration Department,
Mantralaya, Mumbai 400 032,
2 High Power Committee of
Freedom Fighter,
through its President
Government of Maharashtra,
Sachivalaya, Administrative Building,
Bombay 32,
3 The Collector,
Jalna. ...Respondents
.....
Shri S.P.Deshmukh, advocate for the petitioners
Shri V.D.Godbharle, A.G.P. for respondent nos. 1 and 3
Shri Bhushan B. Kulkarni, advocate for respondent no.2
.....
CORAM : NARESH H. PATIL
AND
SHRIHARI P.DAVARE, JJ.
DATE OF RESERVING
THE JUDGMENT : 02.12.2010
DATE OF PRONOUNCING
THE JUDGMENT : 08.12.2010
J U D G M E N T : (Per Shrihari P. Davare, J.)
1 Rule. Rule made returnable forthwith. With the consent of
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the learned counsel for the parties, the petition is taken up for final
hearing at the admission stage itself.
2 The petitioner, namely, Purushottam Vyankatrao
Dehedkar, who was of 87 years, filed the present petition under
Article 226 of the Constitution of India and prayed as under :-
" (A)
This petition be kindly allowed;
(B) Record and proceedings in respect of the
petitioner's claim for freedom fighter's benefits with the
respondents be kindly called;
(C) By issue of writ of certiorari or any other appropriate
writ, order or direction in the nature of certiorari, impugned
orders dated 10.11.2006 and 4.7.1995 issued by respondents
be quashed and set aside;
(D) By issue of writ of mandamus or any other writ,
order or direction in the nature of mandamus, the respondents
be kindly directed to grant to the petitioner freedom fighter's
pension with effect from 1.1.1995 along with all incidental,
ancillary and consequential benefits;
(E) By issue of writ of mandamus or any other writ,
order or direction in the nature of mandamus, the respondents
be kindly directed to grant to the petitioner freedom fighter's
pension with effect from 1.1.1995 along with all incidental,
ancillary and consequential benefits; "
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3 During the pendency of the present petition, the petitioner
expired and his heirs and legal representatives as petitioner nos.
1(A) to 1(F) have been brought on record, as per order of this Court
passed on 4.8.2008 in Civil Application No. 8208 of 2008, who
pursued the present petition.
4 Respondent no. 1 is the State of Maharashtra represented
through its Secretary, General Administration Department, Mumbai;
whereas respondent no. 2 is High Power Committee of Freedom
Fighters represented through its President, Government of
Maharashtra, Mumbai and respondent no. 3 is the Collector, Jalna.
5 The petitioner claims to have participated in freedom
struggle and took part in Vande Mataram movement and also claims
to have engaged himself in multifarious activities of freedom struggle.
It is also claimed that the name of the deceased petitioner was struck
off from the school record and he was dubbed as Congress gunda by
Razakars and he was also given life threats and was driven out of his
village namely Dahedkarwadi.
6 It is also claimed that deceased petitioner was a member
of Satyagraha in "Hyderabad Mukti Sangram" and he was
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Swayansevak. It is further claimed that deceased petitioner worked
with renowned freedom fighters and also worked under the
leadership of Late Padmavibhushan Govindbhai Shroff and Senior
Freedom Fighter namely Shri Bhausaheb Vaishampayan. It is also
stated that deceased petitioner had to maintain mother of Late
renowned freedom fighter Shri Bhausaheb Vaishampayan by taking
risk of his life.
7 Moreover, it is further stated that deceased petitioner
became old and his economic condition was deteriorating and he
had become dependent on others, and therefore, he applied for
freedom fighter's benefits in the prescribed format and produced the
affidavits of freedom fighters and relevant papers. He also wrote a
letter to respondent no.3 on 13.11.1996 pointing out his involvement
in the freedom struggle as an underground freedom fighter and
appended required affidavits of renowned freedom fighters and the
relevant certificates from the School along with the said Application.
8 Moreover, deceased petitioner also wrote letter to
respondent no.2 on 15.2.2003, since there was no progress in
respect of his application for benefits of freedom fighter. Moreover,
deceased petitioner sent communication dated 19.7.2003 to the
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Chairman of respondent no.2, but still he did not receive any
response from the said authorities. So also, considering the pitiable
condition of deceased petitioner, the Member of Legislative
Assembly had written a letter to the concerned Minister on 7.9.2003
and requested for consideration of deceased petitioner's claim.
However, still there was no response from the concerned authorities,
and therefore, deceased petitioner filed Writ Petition No. 3236 of
2004 before this court. However, deceased petitioner withdrew the
said petition and by order dated 17.4.2006, the deceased petitioner
was permitted to apply afresh after submission of all the documents
as required to be submitted by virtue of Government Resolution
dated 4.7.1995 within the period of three months from 17.4.2006 and
the respondents were directed to examine the case of deceased
petitioner afresh in the light of the documents submitted by deceased
petitioner by order dated 17.4.2006.
9 Accordingly, it is the contention of the deceased petitioner
that as per the said liberty, deceased petitioner submitted an
application with almost all documents. However, respondent no.1
issued communication/order dated 10.11.2006 and thereby rejected
the claim of the deceased petitioner for grant of freedom fighter's
pension to him for want of compliance of the Government Resolution
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dated 4.7.1995. Being aggrieved and dissatisfied by the said order,
deceased petitioner filed the present petition and impugned the said
order/communication dated 10.11.2006.
10 Learned counsel for the petitioners submitted that
deceased petitioner had made substantial compliance of the
requirements as per the Government Resolution dated 4.7.1995 and
produced almost all the requisite documents along with his
application, as well as produced the recommendation given by the
Member of Legislative Assembly regarding his participation in the
freedom movement. However, it is the grievance of the petitioner/s
that in spite of the said substantial compliance made by deceased
petitioner, the respondents authorities have passed the cyclostyled
orders mechanically, without application of any mind, and thereby
rejected the deceased petitioner's claim. It is also argued by the
learned counsel for the petitioners that claim of deceased petitioner
was negatived by the respondents authorities for non-fulfillment of
some conditions by adopting hyper technical approach. It is further
submitted that the concerned Government Resolution dated 4.7.1995
prescribes general guidelines and the object of the said scheme is to
extend the benefits to freedom fighters, and therefore, strict
compliance of the norms of said Government Resolution dated
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4.7.1995 is not expected, but the substantial compliance thereof is
sufficient to subserve the ends of justice.
11 To substantiate the proposition put forth by the learned
counsel for the petitioners, he relied upon the case of Gurdial Singh
vs Union of India and others, reported at AIR 2001 SC 3883,
wherein it is held that :-
" 8. The standard of proof requires in such cases is not
such standard which is required in a criminal case or in
a case adjudicated upon rival contentions or evidence of
the parties. As the object of the scheme is to honour
and to mitigate the sufferings of those who had given
their all for the country, a liberal and not a technical
approach is required to be followed while determining
the merits of the case of a person seeking pension
under the scheme. It should not be forgotten that the
persons intended to be covered by scheme have
suffered for the country about half a century back and
had not expected to be rewarded for the imprisonment
suffered by them. Once the country has decided to
honour such freedom fighters, the bureaucrats
entrusted with the job of examining the cases of such
freedom fighters are expected to keep in mind the
purpose and object of the scheme. The case of the
claimants under this scheme is required to be
determined on the basis of the probabilities and not on
the touch-stone of the test of 'beyond reasonable
doubt'. Once on the basis of the evidence it is
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probabilised that the claimant had suffered
imprisonment for the cause of the country and during
the freedom struggle, a presumption is required to be
drawn in his favour unless the same is rebutted by
cogent, reasonable and reliable evidence.
9 We have noticed with disgust that the
respondent Authorities have adopted a hyper-technical
approach while dealing with the case of a freedom
fighter and ignored the basic principles/objectives of the
scheme intended to give the benefit to the sufferers in
the freedom movement. The contradictions and
discrepancies, as noticed hereinabove, cannot be held
to be material which could be made the basis of
depriving the appellant of his right to get the pension.
The case of the appellant has been disposed of by
ignoring the mandate of law and the Scheme. The
impugned order also appears to have been passed with
a biased and close mind completely ignoring the verdict
of this Court in Mukund Lal Bhandari's case. We further
feel that after granting the pension of the appellant, the
respondents were not justified to reject his claim on the
basis of material which already existed, justifying the
grant of pension in his favour. The appellant has
unnecessarily, been dragged to litigation for no fault of
his. "
12 Learned counsel for the petitioners also placed reliance
upon the observations made by the Apex Court in the case of
Ramchandra D. Erande vs Union of India and another, reported
at AIR 1997 BOMBAY 129, which are as follows :-
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" 6. In our opinion, the petitioner has made out a
case for being granted the pension under the scheme. It
is obvious from the material produced by the petitioner
that he satisfies all the criteria laid down under the
scheme. He has undergone imprisonment for more than
six months. In fact, for a period of 9 months and 21 days
the petitioner was in jail. This he has done while
participating in the freedom movement. The petitioner
is today more than 70 years of age. Cases of freedom
fighters require sympathetic consideration. They risked
their lives and considered liberty for the country more
important than their personal liberty. But for their
sacrifices this country would not have attained freedom.
This fact need not be repeatedly emphasised. It is in
appreciation of such sacrifices that the State
Government as well as Central Government have
thought it fit to frame such pension scheme. The very
object of such schemes would be defeated if hyper-
technical views are taken. Time and again this Court
has come across such matters and, therefore, we think
it necessary to deprecate such attitude being adopted
by the authorities concerned. In fact all possible efforts
must be made to trace out such persons by apt publicity
to make such persons aware of such schemes. They
should be convinced that this country has not forgotten
them and their sacrifices have not gone in vain. They
should be further convinced, which can be done only if
the authorities realise the spirit underlying such
schemes, that the benefits under the scheme are in
appreciation of their sacrifices and not alms doled out.
May be the lack of appreciation of the spirit underlying
the schemes, as is evident from the attitude of the
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authorities, has scared away these freedom fighters. "
13 Accordingly, learned counsel for the petitioners urged that
the impugned order dated 10.11.2006 issued by respondent no.1 is
based on hyper technical approach, and hence, same be quashed
and set aside and the respondents be directed to grant freedom
fighter's pension to the petitioners, as prayed for.
The respondents opposed the present petition vehemently
and Dnyanadev Laxman Sul, Under Secretary, General
Administration Department, Freedom Fighter Cell, Mantralaya,
Mumbai filed the affidavit in reply and denied the averments and
contentions made by the petitioners therein unless admitted
specifically. It is stated that deceased petitioner applied for freedom
fighter's pension through the District Collector, Jalna on 29.11.1996
and the Zilla Gaurav Samiti had recommended the case of deceased
petitioner in the meeting dated 14.5.1999. Accordingly, the State
Government scrutinized the application of deceased petitioner in the
light of the provisions of the Government Resolution dated 4.7.1995.
However during the scrutiny, it was found that deceased petitioner
had not produced necessary documentary evidence in support of his
claim, and hence, his claim was rejected, and accordingly, deceased
petitioner was informed by letter dated 11.9.2003. It is also stated
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that though Zilla Gaurav Samiti had recommended the case of
deceased petitioner, the said recommendation is not binding on the
Government, as per the ratio laid down by this court in the case of
Tukaram Ramji Koli vs State of Maharashtra, since if the
recommendation of Zilla Gaurav Samiti is made after 4.7.1995, such
cases be scrutinized as per criteria laid down in the Government
Resolution dated 4.7.1995, which are as follows :-
" (i) The documentary evidence stating as to
what type of problems and hardships, the applicant had
undergone due to participation in the Freedom
Movement :-
(a) Whether he had to remain away from his
home & family.
(b) Whether he had to give up education or he
was expelled from any education institution.
(c) Whether he was beaten up by the police in
such manner, that he became permanently disabled.
(ii) The certificate of two freedom fighters of their
respective areas who had either undergone at least 2
years imprisonment or those who had been declared
absconded or who had been absconded for at least 2
years for participation in Freedom Movement due to
issuance of warrant.
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(iii) Certified copy of the Government record,
which proves that he was an underground freedom
fighter.
(iv) The original newspaper of relevant time with
the news describing that the applicant was underground
for participation in the freedom struggle.
(v) Recommendation of Zilla Gaurav Samiti. "
It is further stated that the petitioner had again applied to
High Power Committee at State level for consideration of his claim
without production of any documentary evidence as per the
Government Resolution dated 4.7.1995. Hence, his application was
rejected and deceased petitioner was informed accordingly by letter
dated 16.2.2006. Thereafter, deceased petitioner approached this
court by filing Writ Petition No. 3236 of 2004 and this court issued
above referred directions on 17.4.2006 and pursuant to the said
order dated 17.4.2006, deceased petitioner produced the documents
to the Government and the case of deceased petitioner was
scrutinized on the basis of said documents. However during
scrutiny, it was found that Zilla Gaurav Samiti of Jalna District has
not recommended the case of deceased petitioner, as he has not
fulfilled the criteria laid down in the Government Resolution dated
4.7.1995. Hence, the Government took the decision of rejection, and
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accordingly, informed deceased petitioner by letter dated
10.11.2006.
16 Respondents further stated that deceased petitioner has
submitted affidavits of two freedom fighters, but jail certificates
showing two years suffering were not annexed with said affidavit filed
by Narayan Jadhav nor the record shows that Narayan Jadhav was
declared absconding for two years during freedom movement.
Accordingly, deceased petitioner failed to produce documentary
evidence as prescribed in the Government Resolution dated
4.7.1995.
17 Learned counsel for the respondents also pointed out that
two members of Zilla Gaurav Samiti were favourable with deceased
petitioner, but the Member Secretary dissented to recommend the
name of deceased petitioner. It is also submitted by learned counsel
for the respondents that the School certificate dated 4.10.1996
produced by deceased petitioner discloses that though his name was
struck off from the record of school from 19.1.1939, but again his
name was registered from 7.9.1939, and therefore, it does not
amount to compliance of the requirement of the Government
Resolution dated 4.7.1995.
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18 It is further canvassed by leaned counsel for the
respondents that the Government Resolution dated 4.7.1995
contemplates that the name of the underground freedom fighter is
required to be published along with his information in the then news
paper i.e. in the news paper published at the time of freedom
movement, but name of deceased petitioner was published in the
news paper published in the year 1996, and therefore, also same
does not amount to compliance of the Government Resolution dated
4.7.1995.
19 To substantiate the contentions of the respondents,
learned counsel relied upon the case of Mukund Lal Bhandari and
others vs Union of India and others, reported at AIR 1993 SC
2127, wherein it is observed that the pension can only be sanctioned
after submission of requisite documentary evidence by the claimant.
Hence, learned counsel for the respondents canvassed that since
the deceased petitioner failed to produce requisite documents, as per
Government Resolution dated 4.7.1995, the petitioners are not
entitled for freedom fighter's pension.
20 Learned counsel for the respondents also placed reliance
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on the case of the State of Maharashtra and others vs Raghunath
Gajanan Waingankar, reported at 2004 AIR SCW 4701, wherein it
is held by Hon'ble Supreme Court that :-
" The High Court exercising writ jurisdiction does not sit
in judgment over the decision of the State Government
like an appellate authority. Ordinarily, the High Court
exercising writ jurisdiction cannot enter into re-
appreciation of evidence and reverse the findings
arrived at by the State Government unless they be
perverse or be such as no reasonable man acting
reasonably could have arrived at. If the High Court
found that the decision arrived at by the State
Government was flawed in any way then the High Court
should have, after laying down the necessary principles
or guidelines or issuing directions, directed the State
Government to reconsider the case of the respondent.
In no case, the High Court could have in exercise of its
writ jurisdiction relaxed the need for full satisfaction of
the necessary requirements on the fulfilment of which
alone the respondent's entitlement to the release of
freedom fighters' pension depended. "
21 Accordingly, learned counsel for the respondents
submitted that the case of the petitioners does not come under the
purview of the Government Resolution dated 4.7.1995, and
therefore, the case of deceased petitioner was rightly rejected by
respondent no.2 by reasoned order dated 10.11.2006, which cannot
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be faulted with, and hence, no interference therein is called for, and
consequently, present petition deserves to be dismissed.
22 We have perused the contents of the present petition,
annexures enclosed herewith, concerned file maintained by the
respondents, impugned order dated 10.11.2006, the Government
Resolution dated 4.7.1995 and also considered the observations
made in the Rulings cited by both the learned counsel for respective
parties carefully, as well as considered the submissions advanced by
the parties anxiously, and at the out set, it is apparent that deceased
petitioner herein had claimed the pension of freedom fighter under
the category of underground freedom fighter as per the Government
Resolution dated 4.7.1995 and the requirements thereof have been
specified in the said Government Resolution dated 4.7.1995.
However, on perusal of deceased petitioner's application and
annexures submitted therewith from the concerned file maintained by
the respondents, it is amply clear that deceased petitioner did not
produce the necessary requisite documents along with the said
application, and therefore, the observations made by respondent no.
1 in that respect cannot be faulted with. Moreover, learned counsel
for the respondents rightly pointed that the school certificate dated
4.10.1996 produced by deceased petitioner along with his application
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reflects that the name of deceased petitioner was struck off from the
school record from 19.1.1939, but again his name was registered
from 7.9.1939, and hence, same cannot be construed as compliance
of the requirement of said Government Resolution dated 4.7.1995.
23 Moreover, it is also one of the requirements of the said
Government Resolution dated 4.7.1995 that the name of
underground freedom fighter along with his information be published
in the then news paper i.e. news paper published at the time of
relevant freedom movement, but the news paper produced by
deceased petitioner is of the recent year i.e. 1996, in which name of
deceased petitioner appears to have been published, and therefore,
same also cannot be construed as compliance of the requirements of
the Government Resolution dated 4.7.1995.
24 Besides that, deceased petitioner himself admitted in para
20 of the present petition that he has produced affidavits of two
freedom fighters, who were imprisoned, along with his application,
but as far as the extent of their sentences and declaration of them
being absconding could not be produced by him. Thus, since it is one
of the requirements of the said Government Resolution dated
4.7.1995 and same could not be complied with by deceased
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petitioner, as stated and admitted by him in para 20 as afore said, it
also amounts to non-compliance of the requirement of the
Government Resolution dated 4.7.1995.
25 As regards the argument advanced by learned counsel for
the petitioners that the deceased petitioner has produced almost all
necessary documents and made substantial compliance of the
requirements of Government Resolution dated 4.7.1995 and hyper
technical approach cannot be adopted by expecting strict compliance
of the norms of Government Resolution dated 4.7.1995, it is material
to note that Hon'ble Supreme Court has observed in the case of
State of Maharashtra vs Raghunath Waingankar, reported at 2004
AIR SCW 4701 (supra) that, "In no case, High Court could have in
exercise of its writ jurisdiction relaxed the need of full satisfaction of
the necessary requirements on the fulfillment of which alone, the
respondent's entitlement to the release of the freedom fighters'
pension depended.", and hence, in no case production of documents
as contemplated under Government Resolution dated 4.7.1995 can
be relaxed, and accordingly, there is no substance in argument
canvassed by learned counsel for petitioner of alleged substantial
compliance, and hence, same is required to be discarded.
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26 Accordingly, applying the parameters of the Government
Resolution dated 4.7.1995 to the deceased petitioner's application
and annexures therewith, it is amply clear that the deceased
petitioner failed to comply with the requisitions contained in the said
Government Resolution dated 4.7.1995, and hence, there is no flaw
in the impugned order while rejecting the claim of deceased
petitioner. Thus, after having the comprehensive view of the matter,
we are of the considered opinion that the impugned order dated
10.11.2006 cannot be faulted with, and we do not find any infirmity or
perversity therein, and therefore, no interference therein is called for
under the extraordinary jurisdiction of this court, and hence, present
petition deserves to be rejected.
27 In the result, present petition, which is sans merits, stands
dismissed with no order as to costs. Rule stands discharged
accordingly.
(SHRIHARI P. DAVARE, J.) (NARESH H.PATIL, J.)
dbm/wp4497.07
