Smt.Anusayabai Khanderao Sure vs Union Of India
2013 Latest Caselaw 148 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                             CIVIL APPELLATE JURISDICTION




                                                                                 
                             WRIT PETITION NO. 9273 OF 2003




                                                         
    Smt.Anusayabai Khanderao Sure                                 ...Petitioner
          vs
    Union of India                                                ...Respondent
                                           .....
    Mr.Uday P. Warunjikar for the Petitioner.




                                                        
    Mr.S.B. Shetye with Mr.A.R. Varma for the Respondent.
                                           .....

                                     CORAM : A.S. OKA AND
                                             S.C. GUPTE, JJ.

ig : 13th NOVEMBER 2013 Oral Judgment (Per A.S. Oka, J.) :

Heard learned Counsel for the petitioner and the learned Counsel

for the respondent.

2 The Petitioner is the widow of a freedom fighter by the name

Khanderao Sure. The case made out in the petition is that the petitioner's

husband actively participated in the Bharatnagar Satyagraha in the 1939 in old

Hyderabad State and was sentenced to rigorous imprisonment for 11 months

under Sections 122 and 164 of the Taziral by Nazim Sahib Adalth, Patihan on 7 th

May 1939. The certificate of imprisonment annexed to the petition shows that the

petitioner's husband was detained in the Aurangabad Central Prison from 8 th

May 1939 and was released on 10 th August 1939 on the basis of an order of the

Government. Prayers were made initially by the petitioner's husband and

thereafter by the petitioner for grant of pension under the Swatantrata Sainik

Samman Pension Scheme, 1980 (for short "the said scheme"). On 15 th June

2001, an order was passed holding that the petitioner's husband was disentitled

to benefit of the said scheme as the condition of suffering actual imprisonment of

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six months was not complied with.

2 The submission of the learned Counsel for the petitioner in support

of this petition which is that the petitioner's husband was admittedly convicted to

suffer imprisonment for 11 months and he was released earlier before the

completion of period of six months only on the basis of the order of the

Government. He urged that there is nothing on record to show that the

petitioner's husband either tendered pardon or made any application to any

authority for reducing substantive sentence. He relied upon a decision of the

Apex Court in the case of Mukund Lal Bhandari and others vs. Union of India

and others1. He urged that Apex Court has taken a view that the technicality

should not come in the way of grant of pension to freedom fighters under the

said scheme if the claim is found to be genuine. He also invited our attention to

the decision of the Apex Court in the case of Surja and others vs. Union of

India and another2. He invited our attention to paragraph 7 of the said decision.

He submitted that the petitioners before the Apex Court, who were claiming

pension under the said scheme, were similarly placed as the present petitioner's

husband. He pointed out that all of them were convicted for a term exceeding six

months and only as a result of general amnesty declared by the Nizam of

Hyderabad, that their substantive sentences were reduced and the petitioners

were set free even before completing sentence of six months. He urged that the

Apex Court has held that grant of such remission will not dis- entitle the freedom

fighters to their right under the scheme. He also relied upon another decision of

the Apex Court in the case of Duli Chand and others vs. Union of India 3

which according to him deals with the cases of similarly placed persons. Lastly,

1 AIR 1993 SC 2127(1) 2 (1991) 4 SCC 366 3 1990 (Supplementary) SCC 762

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he invited our attention to the decision of the Apex Court in the case of Union of

India and others vs. Manohar Lal Azad and another 4. He urged that the

decision in the case of Surja (supra) will continue to apply as identically placed

freedom fighters were held as eligible by the Apex Court for entitlement to

pension under the said scheme. He, therefore, submitted that based on the

observations made in the case of Manohar Lal Azad (supra), the right which

was accrued to the petitioner's husband could not be denied because he did not

undergo the actual sentence of six months on account of remission granted by

the Nizam. He urged that the benefit of pension cannot be denied to the

petitioner's husband and consequently to the petitioner.

3 We have carefully considered the submissions. As far as the

eligibility of freedom fighters to receive the benefit of the said scheme is

concerned, there is no dispute. Clause (a) of paragraph 4 of the scheme defines

a "freedom fighter" to be a person who has suffered minimum imprisonment of

six months in the mainland jail before independence. We must note here that in

the amended scheme which is annexed to the reply, identical eligibility has been

prescribed in Clause 2.2 thereof. Thus, on a plain reading of the eligibility

condition, a person is entitled to the benefit of the scheme provided he had

actually suffered minimum imprisonment of six months on account of

participation in freedom struggle. Relevant clause does not merely provide that a

person has to be convicted to suffer imprisonment of a period of minimum six

months. The emphasis seems to be on the person concerned actually

undergoing imprisonment for a minimum period of six months.

    4            At this stage, we must note that in the case of Mukund (supra), the
    4        ( 2002) 10 SCC 568



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Apex Court dealt with an issue whether an application for grant of pension under

the said scheme could be entertained after the cut-off date. The issue which

arises for consideration in this petition did not arise before the Apex Court. In the

case of Surja (supra), we find that the petitioners were similarly placed as the

petitioner's husband in the present case. Though they were sentenced to suffer

minimum imprisonment of six months, they were let-off before undergoing the

entire sentence on the basis of general amnesty declared by Nizam. Paragraph

7 of the said judgment is relevant which reads thus :

"7.

Freedom Fighters' Pension Scheme of 1972 was renamed as "Swatantrata Sainik Samman Pension Scheme 1980". The brochure published by the Union of India indicates : "A person who had suffered a minimum

imprisonment for six months in the mainland jails before independence in the struggle for independence is eligible to be admitted to the benefits of the pension," It has already been indicated that each of the petitioners had been convicted and was ordered to suffer

imprisonment of more than six months. The petitioner's assertion that they did not claim remission has not been

doubted or disputed. In the facts of the case it would be appropriate to hold that each of the petitioners satisfied the condition for earning the benefit of pension and the fact that while undergoing sentence which was for a

period beyond six months remission had been granted and they were let off earlier would not take away their right to earn pension. Learned Attorney General appearing for the respondents has accepted this construction of the entitlement clause."

5 The decision in the case of Surja (supra) was considered

subsequently by the Apex Court in the case of Manohar Lal Azad (supra). This

was also a case where a person claiming to be a freedom fighter was denied the

benefit of pension under the said scheme. An argument was canvassed by the

appellant before the Apex Court that once it is established that the Criminal

Court awarded sentence of punishment of six months to the freedom fighter, it is

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not necessary that he should actually undergo the imprisonment for the entire

period. Reliance was placed on the case of Surja (supra). In paragraph 9, the

Apex Court made a reference to paragraph 7 of the decision in the case of Surja

(supra) by quoting it verbatim. In paragraph 10, the Apex Court held thus :

"10. From the above observations it is clear that on the peculiar facts of that case it was held that each of the

petitioners therein satisfied the condition for earning the benefit of pension. We are unable to read that judgment as laying down that where a person has sentenced to imprisonment for six months or more but if he comes out within a month or so, for whatever reason, without

serving his sentence, he will still be a freedom fighter within the meaning of the Scheme and eligible for the

samman pension. To say so, in our opinion, would amount to giving a go-by to the definition of the expression "freedom fighter" and substituting new eligibility criteria for the Scheme enlarging its scope

which is not only impermissible but also contrary to the spirit of the Scheme framed on the basis of the material and keeping in mind the class of the political sufferers who would be the beneficiaries of the Samman Pension Scheme." (underline supplied)

6 Thus, what has been held by the Apex Court is that the decision in

the case of Surja (supra) does not lay down any law. The Apex Court

specifically held that accepting such argument will amount to giving a go-by to

the definition of the freedom fighter and substituting new eligibility criteria for the

scheme enlarging its scope.

7 What binds this Court is the law laid in the case of Manohar Lal

Azad (supra) in view of what is held in paragraph 10 thereof.

8 In the circumstances, we cannot find fault with the view taken by

the authorities that the petitioner's husband did not fulfill the eligibility criteria

provided under the scheme as he had not actually undergone imprisonment for a

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period of six months.

9 We find no fault in the action of respondents of denying pension to

the petitioner. There is no merit in the petition. The same is rejected. Rule is

discharged with no order as to costs.

    (S.C. Gupte, J.)                                                      (A.S. Oka, J.)