Ramkishan Narhari Sangewar vs State Of Mah & Ors
2016 Latest Caselaw 3588 Bom

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                                                                           6801.04 wp.odt

                      IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                               
                                 BENCH AT AURANGABAD

                                WRIT PETITION NO. 6801 OF 2004




                                                       
    Shri Ramkishan s/o. Narhari Sangewar
    Age 79 years, Occ, Social Worker,
    R/o. Kuntur, Tq. Naigaon,
    Dist. Nanded.




                                                      
                                                     .. PETITIONER'S
    VERSUS

    1]     The State of Maharashtra
           through its Secretary,




                                           
           Freedom Fighters Cell,
           General Administration Department,
                              
           Mantralaya, Mumbai-32.

    2]     The Chairman,
                             
           High power committee of
           Freedom Fighters Cell,
           General Administration Department,
           19th floor, Opp. Mantralaya,
           New Administration Building,
      

           Mumbai-32.
   



    3]     The Desk Officer/section officer,
           General Administration Department
           Freedom Fighters Cell,
           19th floor, Opp. Mantralaya,
           Mumbai-32.





    4]     The Collector,
           Nanded, Dist. Nanded.

                                                            ... RESPONDENTS.





    Mr. V.S. Panpatte, Advocate for the petitioner.
    Mr. B.A. Shinde, AGP for respondent Nos. 1,3 and 4.
    Mr. B.B. Kulkarni, Advocate for respondent No.2.


                                               CORAM : S.V. GANGAPURWALA
                                                     & K.K. SONAWANE, JJ.

DATE OF RESERVING JUDGMENT : 4TH APRIL, 2016 DATE OF PRONOUNCEMENT OF JUDGMENT : 5TH JULY, 2016.

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ORAL JUDGMENT [ PER K.K. SONAWANE, J.] :-

1] By this petition, the petitioner is agitating the validity,

correctness and propriety of the impugned order passed by the respondent

dated 4th August, 2004, rejecting the claim for grant of benefit of Samman

Pension as envisaged under the Freedom Fighter Pension Scheme, 1972.

2] The factual matrix emerging from the circumstances on record

in this petition is that, the petitioner had taken active participation in the

Hyderabad Liberation Movement and worked as an underground freedom

fighter. He had participated in the activities like campaigning against the

erstwhile Nizam Government. He had collected funds for the sake of

Liberation Movement. He supplied weapons to the activists of the

movement. He was providing secret information about the police activities

to the other workers etc. The petitioner participated in the freedom

movement as underground freedom fighter. The veteran leaders - Shri

Vitthal Bhosale, Kondiba Surne, Nagorao Mugal, Bhujangrao Panchal, Govind

More, Rajendra Sangewar and others were the associates of the petitioner in

the liberation movement.

3] According to the petitioner, the Government of India introduced

a scheme providing grant of pension to the freedom fighters and considering

the eligibility criteria, he is entitled to get the benefit of pension under the

scheme. Therefore, in the year 1990, the petitioner preferred an

application and claimed the benefit of Samman Pension under the

Government Scheme. The petitioner submitted all the requisite documents

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in support of his claim including the affidavits of veteran leaders/freedom

fighters of the Liberation Movement. However, the respondent authority did

not take into consideration the claim of the petitioner and kept the

application pending uptill 1995. The circumstances constrained the

petitioner to file Writ Petition No. 4344 of 1995 and after appreciating the

facts and circumstances, this Court issued directions to the respondents to

decide the application of the petitioner on merits within a period of six

months. Thereafter, the concerned Collector forwarded the proposal to the

Government Authority. However, after considering the relevant documents

produced on behalf of petitioner, the government authority was not

convinced to grant pensionary benefits to the petitioner and rejected the

claim vide order dated 16.11.1996, on the ground that the petitioner failed

to fulfill the eligibility criteria required under the scheme. Being dissatisfied

with the order of rejection of claim, petitioner again approached to this

Court and filed W.P. No. 744 of 1998 for re-appraisal of his proposal for grant

of pensionary benefit under the scheme. Meanwhile, the petitioner moved

another application on 30.4.1998 in prescribed proforma before the District

collector, accompanying with all requisite documentary evidence for grant of

pensionary benefit under the scheme. Petitioner appended the affidavits of

veteran freedom fighters, namely, S/Shri Gangaprasad Yetalkar, Govindrao

More, Nagorao Mugal in support of his claim. These freedom fighters have

certified that the petitioner had actively participated in the Liberation

Movement. In the proceeding of W.P. No. 744 of 1998, the directions were

issued by this Court to the respondent to decide the claim of the petitioner

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afresh within the period of six months. Despite the efforts to pursue the

application, the petitioner did not receive any response from Government

authority. Eventually petitioner received the letter dated 10-12-2001, from

respondent in which it has been communicated to the petitioner that his

claim cannot be granted for non-compliance of conditions prescribed in the

Government Resolution dated 4.7.1995. The petitioner immediately filed a

representation on 15.1.2002 against the rejection of his claim and requested

to review the earlier order dated 10.12.2001. Moreover, the circumstances

constrained the petitioner to file another writ petition No. 3465 of 2003 and

put in question the genuineness and correctness of the order of rejection of

his claim. At last, the petitioner succeeded in the petition to get the

impugned order of rejecting the claim set aside and the proceedings once

again remanded back to the respondent for hearing afresh within a period of

six months. The petitioner taking abundant precaution, filed another

representation dated 21.6.2004, in detail and requested to grant his claim

for pensionary benefit under the scheme. Unfortunately, at this juncture

also, the claim of the petitioner for grant of pension came to be turned

down by the respondent, vide impugned order dated 4.8.2004 for the reason

that the petitioner did not fulfill the eligibility criteria as contemplated

under the scheme. Being aggrieved thereby, the petitioner has preferred

the present writ petition for redressal of his grievances.

4] The respondent No.1 appeared and vociferously opposed the

contentions put forth on behalf of the petitioner by filing affidavit in reply.

According to respondent No.1, the petitioner has claimed himself to be an

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underground freedom fighter of the Hyderabad Liberation Movement. He

had an involvement in the activities like hoisting the flag, spreading the

thoughts of Shri Ramanand Tirth, creating awareness against the Hyderabad

regime, providing assistance to the underground freedom fighter by

supplying them food, arms, ammunitions etc. He had also participated in

the activities like cutting the SHINDI trees, disrupting the rail tracks. It has

been submitted that considering the role played by the petitioner in the

Liberation Movement, it cannot be said that he was an underground freedom

fighter.

It was not possible for him to do all these activities by making

himself underground. The petitioner did not comply with the eligibility

crieria as prescribed under the Government Resolution dated 4.7.1995. The

petitioner did not produce any document of his suffering or he was

compelled to remain away from the house or expelled from the educational

institution. He had not produced any document about any severe assault by

the police resulting into his physical disability. There was no evidence to

show that the petitioner was absconding, nor there was any newspaper

cutting or jail certificate in regard to freedom fighters who filed an affidavit

in support of claim of the petitioner. The respondents also criticized that

the petitioner has mentioned that he had applied in the year 1990 in

prescribed format. However, petitioner produced the documents i.e his

own affidavit and affidavit of Vitthal Nagoba executed in the moth of

January, 1995 and November, 1995. These affidavits reflect that the

petitioner must have filed the application in the year 1995. Therefore, the

eligibility criteria prescribed under the Government Resolution dated

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4.7.1995 are applicable to the petitioner's case. In view of the directions of

this Court in W.P. No. 3465 of 2003, the claim of the petitioner was re-

examined and at that time also, the petitioner was found not entitled for

financial benefits of pension within the ambit of Government Resolution

dated 4.7.1995. The petitioner claimed the benefit under the category as

underground freedom fighter. But his activities demonstrate that it was not

necessary for the petitioner to go underground. The respondents put in

controversy the genuineness of the affidavit of Shri Nagorao Mogal. The

recitals of the affidavits of the petitioner and affidavit of Nagorao Mugal

appear identical and similar one. The jail certificate of Nagorao Mogal

reflects his imprisonment for the offence punishable under Section 243

which is an offence relating to counterfeit currency. It has no nexus with the

activities of the Liberation Movement. In such circumstances, the claim of

the petitioner came to be rejected once again on the ground of insufficiency

of proof for his entitlement to get benefit of Samman Pension Scheme.

5] At the outset, it would be imperative to take into consideration

the basis of the claim of the petitioner to appreciate the controversial issue

of correctness, validity and propriety of the impugned order dated 4.8.2004.

It is not in dispute that after various earlier resolutions, the Government of

Maharashtra formulated the specific scheme to determine the eligibility

criteria for Freedom Fighter Pension vide Govt. Resolution dated 4.7.1995.

There are two different categories under the scheme, namely, one under the

category of "underground freedom fighters" and another is, "Prisoner

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freedom fighters". Since the petitioner preferred the application under the

category of "underground freedom fighters", he has to comply with the

following pre-requisites stipulated under the Government Resolution dated

4.7.1995 to claim the benefit of the scheme. The conditions are :-

[1] The applicant should submit a certificate stating as to

what type of problems and hardships he had undergone following his

participation in the freedom movement;

[a] he had remained away from his house or family;

[b]

he had to leave education or expelled from the

educational institution;

[c] he was severely beaten up by the police which resulted

in disability;

[2] The certificate of two freedom fighters of their

respective area who were convicted for minimum two years or who

were declared absconding or who remained absconded for atleast two

years. These certificates should be accompanied with the copies of

Jail Certificate showing imprisonment or proclamation of conviction or

absconding as well as duly verified affidavits of the freedom fighters

issuing the certificates.

[3] Certified copy of the Government document of that time,

if any, available regarding the fact that he remained underground.

[4] The original newspaper of news item published

containing information about the name of the petitioner being

underground freedom fighter.

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[5] At the time of recommendation, the District Gaurav

Committee shall submit their opinion.

6] The impugned order dated 4.8.2004, rejecting the claim of the

petitioner demonstrate that the petitioner did not produce any relevant

document as required under the aforesaid Government Resolution dated

4.7.1995, except the affidavit of certain persons. But, these affidavits were

also not found considerable to fulfill the eligibility criteria to derive the

benefit under the scheme The petitioner failed to submit the documents of

his suffering on account of his involvement/participation in the freedom

movement. He had not produced the proof that the circumstances

compelled him to live away from the household or he was expelled from the

educational institution, or that he gave up education or he has suffered

disability due to beating inflicted by the police. The petitioner did not

furnish the news at that time showing his name as underground freedom

fighter published in the newspaper nor any Government record stating that

the petitioner was an underground freedom fighter.

7] Shri Panpatte, learned counsel for the petitioner vehemently

submitted that the impugned order, rejecting the claim of the petitioner is

improper, perverse and contrary to the object and purpose of the scheme.

The respondent authority did not appreciate the documents produced on

record by the petitioner in its proper perspective and adopted an

hyper-technical approach. He further submits that in such cases the

standard of proof is not required at par with the proof required in criminal

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cases. But, the claim is required to be determined on the basis of

probabilities. The respondents have committed error while discarding the

affidavits of veteran freedom fighter like Shri Mogal and others, produced on

record by the petitioner. According to learned counsel, the claim of the

petitioner was filed prior to the year 1990 and, therefore, the eligibility

criteria laid down under the Government Resolution dated 4.7.1995 would

not be made applicable to the claim of the petitioner. However, the

petitioner filed affidavits of other veteran freedom fighters who have

certified that the petitioner had an active participation and involvement in

the Hyderabad Mukti Sangram. In support of his submissions, the learned

counsel for the petitioner has relied on the judgments :-[1] Mukundlal

Bhandari Vs. Union of India AIR 1993 SC 2127 [2] Guru Dayalsingh Vs.

Union of India (2001) SCC page 8 [3] Chhotubhai H.L. Patel Vs. State of

Gujarat and others AIR 1996 Gujarat 291 [4] judgment in SLP Civil

No. 8899 of 2010 Kamalbai Sinkar Vs. State of Maharashtra and others.

Eventually, the learned counsel for the petitioner prayed to quash and set

aside the impugned order and issue directions for grant of pensionary

benefits to the petitioner.

8] It is to be noted that the alleged scheme came to be introduced

as "Swatantrya Sainik Samman Pension Scheme". The scheme is meant to

benefit the freedom fighters. As observed by the Apex Court in the matter

of "Mukundlal Bhandari vs. Union of India" reported in AIR 1993 SC

2127, the object of the scheme was to honour and where it was necessary

also to mitigate the suffering of those who had given their all for the country

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in the hour of its need. The scheme was not to reward or compensate the

sacrifices made in the freedom movement. It would be contrary to the spirit

to convert the scheme into some kind of programme of compensation. The

scheme should retain its high objective with which it was motivated.

9] Pursuant to the aforesaid object and purpose of the scheme,

what is necessary in the matter of such claim, is to determine the factum of

eligibility of the petitioner to award the benefit of the scheme. It is clear

that after rejection of the claim on 16.11.1990 the petitioner moved another

application in prescribed proforma on 30.4.1998 before the District Collector

with additional documents and thereafter directions were issued by this

Court in W.P. No. 744 of 1998 to decide the said claim afresh within six

months. The proof of involvement/participation of the petitioner in the

Liberation movement would be the decisive factor to ascertain eligibility of

the petitioner for benefit of the scheme. It would be fallacious to

appreciate that the petitioner preferred the claim prior to the year 1990 and

hence, the yardstick laid down under the Government Resolution dated

4.7.1995 would not be made applicable to his claim. In contrast, in

view of the judgment of the Full Bench of this Court in the matter of

"Tukaram Ramji Koli Vs. State of Maharashtra", the criteria determined

under the Government Resolution dated 4.7.1995 is applicable to all cases

which are pending on the given dates with the Collector, however, the old

cases already decided will not be reopened.

10] At this juncture, it would be profitable to make a reference to

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the guidelines delineated by the Apex Court in the case of "State of

Maharashtra Vs Namdeo" reported in (2013) 14 SCC 225. The Apex

Court, after considering the observations made in Mukundlal Bhandari's case

(referred to supra) as well in the case of "Gurudayal Singh Vs. Union of

India" reported in (2001)8 SCC 8, etc. laid down the principles for

examination of the claim of the freedom fighters to ascertain their locus-

standi for benefit under the scheme. The Apex Court,in para. 18 and 19 of

the aforesaid judgment observed thus :-

"18. The aforementioned discussion leads us to sum up the

legal position as under:

(a) The claims of the freedom fighters are to be dealt with, with sympathy.

(b) The authorities are not to go by the test of "beyond

reasonable doubt" and standard of proof based on this principle has to be discarded.

(c) On the contrary, the principle of probability is to be applied and eschewing the technicalities, the approach should be to uphold the entitlement.

(d) When the Scheme itself mentions the documents which are required to be produced by the applicant, normally those documents need to be produced to prove the claim.

(e) The High Court exercising writ jurisdiction does not sit in judgment over the decision of the State Government like an appellate authority. The order of the State Government is to be

examined applying the parameters of judicial review which are available in examining the validity of such orders.

(f) Even if the order is found to be perverse or flawed, the High Court can, at the most, remit back to the State Government to reconsider the case.

However, this Court has also observed that there may be cases where because of long lapse of time or other circumstances beyond the control of the applicant, it is almost impossible or cumbersome to procure and produce all the stipulated documents. In such cases, the claim cannot be summarily

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rejected for want of documents, even though as per the

Pension Scheme, such documents are to be provided. We are of the opinion that to meet such eventualities, the following principle needs to be added:

(g) On the basis of evidence/documents/material submitted by the applicant, the Government should examine whether it is a genuine case and the documents produced establish that the applicant had participated in the freedom movement. It should

be done by applying the principle of probability. If the material/documents produced are otherwise convincing, the Government in appropriate cases may not insist on strict compliance with all the requirements stated in the Scheme.

19. These principles show a clear path as to how the claims

under the Freedom Fighters' Pension Scheme are to be examined."

11] In the matter in hand, the petitioner did not succeed to place

on record any other material except the affidavits of certain persons to

substantiate his claim. Admittedly, this is the fourth round of litigation in

the claim proceedings of the petitioner. It appears that sufficient

opportunity was granted to the petitioner to furnish the proof, as

contemplated under the Scheme vide Government Resolution dated

4.7.1995. No doubt, the scheme itself reflects the documents to be

produced by the claimant for pensionary benefit. But, on each and every

occasion, the respondent authority turned down the petitioner's claim for

want of sufficient proof. The respondent authority found reluctant to act

upon the bare documents of affidavits of certain persons placed on record by

the petitioner. The respondent authority repeatedly insisted for other

substantial proof required under the scheme. Eventually, the circumstances

and facts on record compelled the respondent authority to reject the claim

once again vide order dated 4.8.2004 which is subject matter of this writ

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petition.

12] We have carefully examined the claim of the petitioner and the

documents appended with it. We do not find any infirmity in the impugned

order passed by the respondent authority. We would reiterate that except

the affidavits of certain persons, the petitioner failed to produce any other

relevant document to substantiate his claim, as required under the

Government Resolution dated 4.7.1995. In such circumstances, it would be

hazardous to allow the claim of the petitioner merely on the basis of

affidavits produced on record, by ignoring other requirements as

contemplated under the scheme vide Government Resolution dated

4.7.1995. It would amount to misuse and abuse of the process prescribed to

ascertain eligibility of the claimant under the scheme. We would like to

make a reference of the judgment of the Apex Court, in the matter of

Namdeo (cited Supra), wherein, the Apex Court has dealt with similar

situation and refused to keep implicit reliance on the bare affidavits filed on

record on behalf of claimant therein. The Apex Court, in the said judgment,

in para. 20 and 21, elucidate as under :-

"20. In the present case, as already noted above, except the affidavits of the two freedom fighters, no other material is placed to substantiate the claims. Approach of the High Court accepting the version of the respondents merely on affidavits, ignoring the requirements of the Scheme altogether, is fraught with

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dangers and would be prone to misuse and abuse. We

can appreciate that direct evidence of having participated in the freedom movement, which events

occurred almost 70 years ago, may not be available and therefore it should not be deemed that this Court is insisting on such direct evidence in order to enable an

applicant to succeed in his claim. At the same time, the Government Resolution dated 4-7-1995 enlists the documents, on the production of whereof, the

respondents could substantiate their participation and

involvement in the freedom movement. In a given case, if there is some cogent material on the basis of which

satisfaction can be arrived at about the participation in the agitation, the Government may relax the other requirements. However, it would be for the State Government to exercise such a discretion, in a given

case, if it is otherwise fully satisfied that the material

produced demonstrate that the applicant is a freedom fighter.

21. In the present case, the Government rejected the

claim by passing a speaking order to the effect that certain documents required under the Government Order dated 4-7-1995 had not been furnished. Once, the claim

is rejected on these grounds and such an order is in consonance with the requirement of the Scheme dated 4-7-1995, no fault can be found with such an order particularly when no case for dispensation of these requirements was made out by the respondents. The claims were based only on the affidavits with no other material. We are of the opinion that if claims are

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allowed merely on such affidavits, that would amount to

giving a complete go-by to the requirements of the Scheme. This cannot be allowed. We are, therefore, of

the opinion that the High Court could not have invalidated the orders of the Government..

13] In view of the above discussion, we are not inclined to nod in

favour of the petitioner for the reliefs claimed in the petition. The

impugned order passed by the respondent authority appears in consonance

with the Government Resolution dated 4.7.1995. The documents produced

on record do not appear sufficient to point out active

participation/involvement of the petitioner in the Hyderabad Liberation

Movement. There are no documents available on record except the

affidavits of certain persons to substantiate the claim and it would be unsafe

to draw favourable inference on the basis of bare affidavits, ignoring the

other requirements as prescribed under the Government Resolution dated

4.7.1995. In the result, writ petition being devoid of merit stands

dismissed. Rule is discharged. In the circumstances, there shall be no

orders as to costs.

            [K.K. SONAWANE,J]                            [S.V. GANGAPURWALA, J]

    grt/-