Bombay High Court
Sitaram Rupaji Zalake vs The State Of Mah And Ors on 5 July, 2016
Bench: S.V. Gangapurwala
1 WP-3033.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3033 OF 2013
Sitaram S/o Rupaji Zalake,
Age: 87 years, Occu; Pensioner,
R/o Talyachiwadi, Tq. Hadgaon,
Dist. Nanded. ...PETITIONER
versus
1. The State of Maharashtra,
Through its Secretary,
General Administration Department,
Mantralaya, Mumbai.
2. Freedom Fighter's High Power Committee
New Administrative Building,
8th Floor, Mantralaya
Mumbai-32
Through its Member Secretary.
3. The Desk Officer,
General Administration Department,
(Freedom Fighters Section )
Mantralaya, Mumbai - 32.
4. The Collector,
Nanded, Dist. Nanded. ...RESPONDENTS
.....
Mr. V.S. Panpatte, Advocate for petitioner
Mrs.N.B. Patil, AGP for respondents No.1, 3 and 4
Mr. B.B. Kulkarni, Advocate for respondents No. 2
.....
CORAM : S. V. GANGAPURWALA AND
K.K. SONAWANE, JJ.
RESERVED ON : 28 th JUNE, 2016.
DELIVERED ON : 5th JULY, 2016.
ORAL JUDGMENT :- ( Per: K.K. Sonwane, J.)
1. Rule. Rule made returnable forthwith. Heard the learned
counsel appearing for parties finally with consent.
2 WP-3033.13
2. This petition arises out of order dated 3rd November, 2006
rebuffing claim of the petitioner for grant of benefit of "Sanman
Pension" as contemplated under 'Freedom Fighter Pension Scheme
1972'. According to petitioner, he had an involvement in 'Hyderabad
Mukti Sangram' as underground freedom fighter. He played prominent
role in the combat occurred in village Kalhali Tahsil Kandhar. He had
participated in the activities like campaign against Nizam Government,
supply of arms and weapons to the activist of the liberation movement,
providing them meals, secret information about police activities,
cutting of trees etc. The petitioner had also taken part in "Jungle
Satyagraha" under the leadership of Jaywantrao Wipankar,
Tagadpallay, More etc.. The petitioner attended State Congress Party
Session held at Hyderabad.
3. It has been contended that the Government of Maharashtra has
introduced "Sanman Pension Scheme" to provide monetary assistance
to the freedom fighter for their scarifies in the freedom movement.
Therefore, petitioner moved an application on 07-10-1995 in the
prescribed proforma for grant of pension being underground freedom
fighter. He had also submitted his own affidavit accompanied with
affidavits of his associates, namely, Kondiba Sakharam Pawar, Maroti
Narayan Amrate. The application of the petitioner was processed by
the 'District Gaurav Samiti' and forwarded the same to the respondent
-authority with favourable recommendation to grant pension benefits to
the petitioner. But, lateron there was no communication to the
petitioner in regard to the progress into the matter. The petitioner
3 WP-3033.13
made endeavour for the informations about the decision, if any, taken
by respondent - authority on his application for awarding pension
benefits to him. But, he did not receive any response. Therefore,
petitioner ventured to seek information by invoking remedy under
Right to Information Act, 2005. Eventually, petitioner received the
letter on 03-11-2011 from respondent-authority and it was
communicated to him that his application came to be rejected on
03-11-2006 for want of sufficient proof as prescribed under
Government Resolution dated 04-07-1995.
4. Being dissatisfied with the decision of respondent - authority,
petitioner immediately submitted detailed representation dated
07-04-2012 and furnished additional evidence comprising documents
of certificates of Police Patil, affidavits of Bajirao Garole, Smt.
Anusayabai Dhole, Pundlik Bhise, Kashiba Mirasse, Ganpatrao @ Ganya
Tagadpallay etc. All these veteran freedom fighters, in their affidavits
had given details about participation of the petitioner in freedom
movement. The petitioner also produced certificates of these freedom
fighters with his application. It has been contended that petitioner has
complied with all requisite criteria of eligibility for freedom fighter
pension. Hence, he requested to upset the impugned order dated
03-11-2006 and grant benefit of pension under "Pension Scheme"
introduced by the Government.
5. Mr. Panpatte learned Counsel for petitioner vehemently
submitted that impugned order dated 03-11-2006 is perverse,
unsustainable and not within ambit of object and purpose of the
4 WP-3033.13
scheme. It would unreasonable to expect the evidence beyond
reasonable doubt to prove the eligibility criteria of the freedom fighter.
The evidence of the affidavits of veteran freedom fighters were liable to
be considered in favour of petitioner. But, the respondent-authority did
not apply mind in proper manner and by adopting superficial approach
rejected the application of the petitioner. According to learned counsel
Mr. Panpatte, the petitioner has filed representation dated 07-04-2012
with additional evidence. But, respondent-authority did not consider
the same uptill this time. The petitioner submitted the affidavits of his
associate freedom fighters, namely, Bajirao Garole, Smt. Anusayabai
Dhole, Pundlik Bhise, Kashiba Mirasse, Ganpatrao @ Ganya
Tagadpallay etc. The petitioner had participation in the movement as
underground freedom fighter. The respondent-authority was pleased to
award benefit of pension to the other associates of the petitioner
without any documents of their sufferings, hardship etc. However, the
application of the petitioner was turned down by applying different
yardstick, which caused injustice to the petitioner. It is settled rule of
law that claim of the freedom fighter is required to be determined on
the probabilities and not on test of beyond reasonable doubt. The
learned counsel Mr. Panpatte blamed that respondent - authority did
not consider the recommendations of "District Gaurav Samiti"
favourable to the petitioner and arbitrarily rejected the application
without any reasonable cause. The act of rejection of claim for non-
availability of direct evidence is contrary to the requirement of the
scheme. The Division Bench of this Court in writ petition No. 2632 of 2011
(Poonjaram S/o Madhav Indewad Vs. State of Maharashtra ) held that
5 WP-3033.13
freedom fighter's pension is essential to be granted, if any one of the
conditions stipulated in the Government Resolution dated 04-07-1995
is fulfilled. Therefore, learned counsel requested to appreciate the
additional evidence produced on record on behalf of the petitioner and
grant him the benefit of pension under Government Resolution dated
04-07-1995.
6. We have given anxious consideration to the arguments
canvassed on behalf of both sides. Admittedly, earlier application for
the petitioner for grant of benefit of pension came to be rejected by
respondent - authority on 03-11-2006. Thereafter, petitioner took
efforts to convince the respondent - authority under his representation
dated 07-04-2012 accompanying with additional evidence as required
under Government Resolution dated 04-07-1995. The petitioner had
produced affidavits of his other associate freedom fighters, namely,
Bajirao Garole, Smt. Anusayabai Dhole, Pundlik Bhise, Kashiba Mirasse,
Ganpatrao @ Ganya Tagadpallay etc. He had also submitted the
certificates issued by concerned Police Patil in regard to involvement of
the petitioner in liberation movement. According to the petitioner,
these documents are sufficient to prove eligibility criteria for pension
benefit as required in Government Resolution dated 04-07-1995. But,
all these efforts on the part of petitioner did not evoke result.
Therefore, circumstances constrained the petitioner to approach this
Court by filing the present writ petition.
7. It is to be noted that respondent-authority filed affidavit in-reply
on record and admitted the contentions put forth on behalf of
6 WP-3033.13
petitioner about his representation dated 07-04-2012. It is also not
put into controversy that the petitioner attempted to produce additional
evidence comprising documents of certificates of Police Patil, affidavits
of veteran freedom fighters, namely, Bajirao Garole, Smt. Anusayabai
Dhole, Pundlik Bhise, Kashiba Mirasse, Ganpatrao @ Ganya
Tagadpallay etc. But, no concrete decision has been communicated on
the part of respondent-authority to the petitioner on the factum of
additional evidence accompanied with representation dated
04-07-2012. We find that respondent - authority has to consider all
these vital documents produced on record on behalf of the petitioner
afresh to redress his grievances.
8. At this juncture, it is worthy to mention that the Apex Court in
the case "Mukundlal Bhandari vs. Union of India" reported in AIR 1993 SC
2127, observed that the object of the scheme was to honour and where
it is necessary also to mitigate the suffering of those who had given
their all for the country in the honour of its need. It is made clear that
the scheme was not to reward or compensate the sacrifices made in
the freedom movement. The scheme is meant to provide benefits to
the freedom fighters as token of honour to them. The object of the
scheme was to assist, honour and acknowledge valuable sacrifices of
the freedom fighters in liberation movement. No doubt, the benefit of
pension was required to be sanctioned only after requisite proof in
support of petitioner's claim as laid down under Government Resolution
dated 04-07-1995. Once application is completed in all respect as per
Government Resolution dated 04-07-1995, the Collector shall place it
7 WP-3033.13
before the "Zilla Gaurav Smiti" for its recommendations. As mentioned
supra the scheme is not to reward or compensate the sacrifices made
in the liberation movement, but it is in token of honour to them.
Therefore, in case petitioner has the sufficient documents in his
custody to prove eligibility criteria for benefit of pension, it would
imperative that sufficient opportunity is essential to be given to the
petitioner to establish his locus-standi for such pension benefit.
9. The learned counsel Mr. Kulkarni for respondent-authority taking
recourse of the legal guidelines delineated in the case of State of
Maharashtra and others Vs. Raghunath Gajanan Waingankar reported in
(2004)6 Supreme Court Cases 584 has rightly pointed out that the
additional evidence produced on behalf of the petitioner cannot be re-
appreciated by exercising the writ jurisdiction. The High Court cannot
sit in judgment over the decision of the State Government like
appellate authority. Therefore, it would unjust and inappropriate to
accept the contentions put forth on behalf of respondent.
10. It is true that as held by the Apex Court in the case of
Raghunath Gajanan Waingankar (Supra), the High Court exercising its
jurisdiction could not sit in judgment being appellate authority over the
decision of the State Government. But, it is for the respondent -
authority to re-appreciate and re-consider the evidence, if any,
produced on record to determine eligibility criteria of the petitioner for
benefit of pension under the scheme. It would be reiterated that in
case there would not be any re-appraisal of the additional evidence of
the petitioner, definitely, it would cause prejudice and injustice to him.
8 WP-3033.13
Obviously, the document by way of additional evidence as stated above
would be the vital evidence to prove eligibility criteria of the petitioner
to claim pensionary benefit under the scheme. Hence, we find it
justifiable to relegate the matter to the respondent-authority for its
re-appraisal and decision afresh. It would sub-serve the purpose to
enable the petitioner to establish factum of his eligibility criteria for
pension purpose.
11. In light of above, the impugned order dated 03-11-2006 is
hereby quashed and set aside. The matter is remanded back to
respondent - authority for reconsideration of the claim of the petitioner
afresh. The petitioner is at liberty to produce additional documents, if
any, by way of evidence before the respondent-authority for
appreciation on its own merit.
12. The petitioner is senior citizen of nearabout 90 years old.
Therefore, respondent-authority shall take endeavour to decide his
claim expeditiously at earliest, preferably within a period of four (04)
months from the date of this order.
13. In the result, the Writ petition is allowed in aforesaid terms. Rule
is made absolute accordingly. There shall be no order as to costs.
Sd/- Sd/-
[ K. K. SONAWANE, J.] [S. V. GANGAPURWALA, J.]
MTK
