Chimnabai Dhondiba Waghmare vs The State Of Maharashtra And ...
2016 Latest Caselaw 7543 Bom

                                                                   22wp11728-15.odt
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD
                        22 WRIT PETITION NO. 11728 OF 2015




                                                                           
        Chimnabai w/o Dhondiba                      ...        Petitioner 




                                                   
        Waghmare
        Age 87 years, Occu: Household
        R/o Adas, Tq. Kaij Dist. Beed

        VERSUS




                                                  
    1. The State of Maharashtra,
       Through its Secretary,
       Central Administration




                                            
       Department( Freedom Fighter
       Division), Mantralaya, Mumbai.

    2. The District  Collector,
                                ig                  ...       Respondents
       Beed, District Beed
                              
               Advocate for Petitioner : Mr. Thombre S. S. 
            AGP for Respondents State: Mrs. A. V. Gondhalekar 
           Advocate for Respondent No.2 : Mr. Bhushan Kulkarni
      


                                     CORAM   :  S. V. GANGAPURWALA & 
   



                                                 K. L. WADANE, JJ.

DATE : 21st December, 2016

ORAL JUDGEMENT:

1. Rule. Rule made returnable forthwith. With

consent of parties, the petition is taken up for final

disposal.

2. The petitioner was given Freedom Fighter Pension

on the ground that the husband of the petitioner had

participated in the Hyderabad Mukti Sangaram.

Subsequently, the order is passed for cancelling the

22wp11728-15.odt said pension and further claiming recovery and criminal

action against the petitioner.

3. The learned counsel for the petitioner submits

that the petitioner is presently aged about 88 years.

Based on the documents received initially, the husband

of the petitioner had applied for the grant of Freedom

Fighter Pension and upon his death the petitioner has

applied for grant of Freedom Fighter Pension on

account of participation of deceased husband of the

petitioner in Hyderabad Mukti Sangaram. The learned

counsel submits that after considering the entire

record, Freedom Fighter Pension was sanctioned in the

year 2009 w.e.f. December, 2005. The learned counsel

submits that the petitioner has not submitted any fake

document. Even the report submitted by the Civil

Judge, Senior Division Ambejogai on 16.02.2008 states

that the husband of the petitioner was imprisoned and

charged for the offence under section 243 of the Nizam

Penal Code. The husband of the petitioner had

participated in the movement against the Nizam State.

Only on the basis of the report of the Superintendent

of Central Prison, Andhra Pradesh, the respondents

came to the conclusion that the petitioner has obtained

Freedom Fighter Pension on forged document. The same is

22wp11728-15.odt not the case. The learned counsel relies on the

judgment of the Apex Court in the case of Ram Rao Vs.

District Collector, Beed, delivered in Civil Appeal

Nos. 10624-10636/2013 dated 25th November, 2013 and

another judgment of the Apex Court in Civil Appeal Nos.

10237-38 of 2016 (Lala Laxman Kirdat & Etc. Vs. State

of Maharashtra & ors)dated 21st October, 2016.

4. Mr. Kulkarni, learned Advocate for respondent

No.2 submits that relying on the documents submitted,

the Freedom Fighter Pension was granted assuming that

the husband of the petitioner had participated in the

Hyderabad Mukti Sangram. However, upon further enquiry,

it was revealed that the certificate of imprisonment

produced by the petitioner was never issued by the

Superintendent, Central Prison Hyderabad and the said

document was forged and fabricated. Such communication

was also made on 31.01.2014 by the Director General of

Prison and Correctional Services, Government of Andhra

Pradesh. According to the learned counsel, the

petitioner is guilty of fraud, forgery and preparing

fake document. As such, the order of cancelling the

said Freedom Fighter Pension, recovery and to prosecute

the petitioner is rightly passed.

22wp11728-15.odt

5. The learned AGP submits that the person who is

benefited on the basis of erroneous document cannot be

protected.

6. We have considered the submissions.

7. It appears that the petitioner has produced the

documents issued by the Superintendent, Central Prison,

Hyderabad i.e. the certificate of imprisonment of her

husband dated 04.11.2006 stating that he was under

trial under section 243 of the Nizam Penal Code. Upon

subsequent verification, it was found that the said

certificate was never issued by the Superintendent,

Central Prision, Hyderabad. There is no reason to

doubt the communication of the Director General of

Prison and Correctional Services, Government of

Andhera Pradesh stating that no certificate was issued

by the Superintendent,Central Prison, Hyderabad.

8. It does not appear that the claim of the

petitioner was totally unfounded. The Civil Judge,

Senior Division, Ambejogai has communicated to the

Collector under communication dated 16.02.2008 that

original record of the Court is in Urdu and with the

help of Urdu expert, the record has been verified

again and combined report of the accused has been

22wp11728-15.odt given, vide letter No.2175 dated 20th June, 2007. The

said record was reverified and it was found that name

of Dhondiba Tuka (Mang) Waghmare i.e. Husband of the

petitioner appears and that he was arrested and was

charged for the offence under section 243 of the of

Nizam Penal Code and even charge sheet was filed

wherein the name of the deceased husband of the

petitioner also appears. Such communication of the

learned Civil Judge Senior Division Ambejogai to the

Collector, Beed, dated 16.02.2008 is not disputed. The

said communication does exist. As such, it cannot be

said that the claim, initially made by the husband of

the petitioner and subsequently by the petitioner, of

the deceased husband of the petitioner participating in

the Hyderabad Mukti Sangaram was baseless or unfounded.

We may observe that, the same would not be sufficient

in view of the subsequent communication of the Director

General of Prison and Correctional Services, that no

certificate was issued by the Superintendent, Central

Prison, Hyderabad, at the relevant time. We are not

interfering with the order cancelling the pension

granted to the petitioner. However, considering that

the petitioner is aged 88 years and a widow, who has

no other avocation for livelihood, directing recovery

22wp11728-15.odt against the petitioner would place the petitioner in

hardship. We set aside the order impugned to the

extent of claiming recovery and prosecution against the

petitioner. The rest of the order cancelling the

pension is upheld.

9. Rule is accordingly made partly absolute in

above terms. No costs.

(K. L. WADANE, J.) (S. V. GANGAPURWALA, J. ) JPC