Smt. Dwarkabai W/O Natthuji Umale ... vs The State Of Maharashtra Thr. Its ...
2016 Latest Caselaw 1386 Bom

    WP 242/16                                            1                            Judgment


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.




                                                                                          
                          WRIT PETITION No. 242/2016




                                                                  
    Smt.Dwarkabai Wd/o Natthuji Umale,
    Aged about 80 years, Occupation : Household,
    through her Power of Attorney
    Shri. Arun S/o Natthuji Umale,




                                                                 
    Aged about 52 years, Occupation: Labour,
    R/o.Chaitanya Wadi, Lahan Umari,
    Akola, Tq. And District Akola.                                                PETITIONER

                                        .....VERSUS.....




                                                 
    1.            The State of Maharashtra,
                  through its Secretary,
                              
                  Department of General Administration,
                  Mantralaya, Mumbai-32.

    2.            The District Collector, Akola,
                             
                  District Akola.                                                    RESPONDENTS

                      Shri A.D. Girdekar, counsel for the petitioner.
           Shri A.M. Joshi, Assistant Government Pleader for the respondents.
      


                                            CORAM :SMT.VASANTI A.NAIK AND
                                                       V.M. DESHPANDE, JJ.        

DATE : 11 TH APRIL, 2016.

ORAL JUDGMENT (PER : SMT.VASANTI A. NAIK, J.)

RULE. Rule made returnable forthwith. The petition is heard

finally at the stage of admission with the consent of the learned counsel

for the parties.

2. By this petition, the petitioner seeks a declaration that the

deceased husband of the petitioner was a Freedom Fighter and the

petitioner being his widow, is entitled for pension under the Freedom

Fighters' Pension Scheme. The petitioner has sought a direction to the

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respondents to pay the pension to the petitioner under the Freedom

Fighters' Pension Scheme along with the consequential benefits.

3. The petitioner is the widow of late Natthuji Umale, who,

according to the petitioner, had actively participated in the Freedom

Struggle. According to the petitioner, the husband of the petitioner was

arrested while distributing pamphlets within the locality of Akola and was

punished for the offence punishable under Section 18 of the Press

Emergency Power Act. According to the petitioner, the deceased husband

of the petitioner had undergone Simple Imprisonment for a period of

twenty one days from 26.08.1942 to 15.09.1942 and was also required to

pay a fine of Rupees Five. After the death of the husband of the

petitioner, the petitioner moved an application for grant of family pension

under the Freedom Fighters' Pension Scheme. It is the case of the

petitioner that the said application was pending with the State

Government and the same was rejected by an order dated 03.10.2015.

The petitioner has indirectly challenged the order dated 03.10.2015 and

has sought a declaration that the petitioner is entitled to family pension

under the Freedom Fighters' Pension Scheme.

4. Shri Girdekar, the learned counsel for the petitioner,

submitted that the petitioner is entitled to family pension as per the

Freedom Fighters' Pension Scheme in view of the Government Resolution

WP 242/16 3 Judgment

dated 04.07.1995. It is stated that the claim of the petitioner was

wrongfully rejected by the order dated 03.10.2015 as it is not necessary

for a Freedom Fighter to remain in jail for a period of more than one

month. It is submitted that the deceased husband of the petitioner had

undergone simple imprisonment for a period of twenty one days for the

offence punishable under Section 18 of the Press Emergency Power Act.

It is stated that the imprisonment of a Freedom Fighter would entitle the

Freedom Fighter or his widow to the pension under the Freedom Fighters'

Pension Scheme. It is submitted that it was necessary for the respondents

to have allowed the application made by the petitioner as the husband of

the petitioner was imprisoned for a period of twenty one days and there is

nothing in the Government Resolution dated 04.07.1995 that requires the

imprisonment for a period of one month.

5. Shri Joshi, the learned Assistant Government Pleader

appearing on behalf of the respondents, submitted that the application of

the petitioner was verified by the Desk Officer of the respondent no.1 and

it was found that the petitioner had not applied as per the Government

Resolution dated 04.07.1995. It is stated that the petitioner had not

annexed the original certificate of the Jail Superintendent about the

imprisonment. It is, however, fairly admitted that there is nothing in the

Government Resolution dated 04.07.1995 that requires the Freedom

Fighter to undergo minimum sentence of one month before seeking the

WP 242/16 4 Judgment

pension under the Freedom Fighters' Pension Scheme. It is stated that an

appropriate order may be passed in the circumstances of the case.

6. On hearing the learned counsel for the parties and on a

perusal of the Government Resolution dated 04.07.1995, it appears that it

was necessary for the respondents to grant the pension under the

Freedom Fighters' Pension Scheme to the petitioner, who is a widow of

the Freedom Fighter. Only while seeking pension for underground

Freedom Fighters, minimum imprisonment for a period of two years is

necessary. No period of imprisonment is prescribed for the entitlement of

Freedom Fighters to receive the pension under the Freedom Fighters'

Pension Scheme. It is not in dispute that the husband of the petitioner

had undergone simple imprisonment for twenty one days for the offence

punishable under Section 18 of the Press Emergency Power Act that was

related to the Freedom Movement. If that be so, the petitioner would be

entitled to receive the pension as per the Government Resolution dated

04.07.1995 being the widow of a Freedom Fighter, who had suffered

imprisonment. In the circumstances of the case, it would be necessary to

direct the State Government to pay the pension to the petitioner in terms

of the Freedom Fighters' Pension Scheme.

7. Though the petitioner would be entitled to the pension under

the Freedom Fighters' Pension Scheme, the petitioner would not be

WP 242/16 5 Judgment

entitled to the arrears of pension from the date of the application. If the

petitioner had made an application to the respondents for grant of

pension in the year 1996 and if the application of the petitioner was not

decided within a reasonable time, it was necessary for the petitioner to

file appropriate proceedings with a prayer to grant pension to the

petitioner and/or for a direction to decide the application of the

petitioner. However, the petitioner did not do anything in the matter for

long. It is the case of the petitioner that the petitioner made

representations to the State Government but, they were not answered. It

is well settled that if an application is made to the State claiming a relief

and if the application is not decided within a reasonable time, it would be

necessary for the party to approach the Court for either seeking the relief

claimed in the application or for a decision on the application. The delay

as long as the one occasioned in this case would result in the dismissal of

a petition on the ground of laches if the cause of action is not continuous.

It is, no doubt, true that the cause of action in case of pensionary benefits

continues from month to month but, it is well settled that in case of delay

in filing the writ petition beyond the period of three years, the monetary

relief could be restricted even in case of pensionary benefits only for a

period of three years preceding the date of filing of the writ petition. In

cases where the cause of action is not continuous, a writ petition seeking

a particular relief would be barred by laches as mere making of

representations to an authority would not stop the period of limitation. It

WP 242/16 6 Judgment

is held by the Hon'ble Supreme Court from time to time that monetary

relief could be granted for a period of three years preceding the date of

filing of the writ petition even if the cause of action is continuous.

Monetary benefits payable towards pension are also governed by the

same rule. It would be necessary to refer to the judgments reported in

(1995) 5 SCC 628 (M.R. Gupta Versus Union of India & Others),

(1997) 11 SCC 13 (Jai Dev Gupta Versus State of H.P. & Another),

(2007) 9 SCC 274 (Shiv Dass Versus Union of India & Others), (2008) 8

SCC 648 (Union of India & Others Versus Tarsem Singh), in this regard.

Hence, though the petitioner would be entitled to family pension, the

petitioner would be entitled to the arrears of the family pension only for a

period of three years preceding the date of filing of the writ petition, i.e.

from 15.12.2012.

8. Hence, for the reasons aforesaid, the writ petition is partly

allowed. It is hereby declared that the petitioner is entitled to family

pension under the Freedom Fighters' Pension Scheme. The respondents

are directed to pay regular family pension to the petitioner from May-

2016. The arrears of pensionary benefits with effect from 15.12.2012

should be paid to the petitioner within aperiod of six weeks. If the

aforesaid direction is not complied with, the respondents would be liable

to pay the aforesaid amount to the petitioner with interest at the rate of

18% per annum.

WP 242/16 7 Judgment

Rule is made absolute in the aforesaid terms with no order as

to costs.

                  JUDGE                                    JUDGE

    APTE