Bombay High Court

Bhagwat Rajaram Wankhede & Ors vs The Desk Officer Freedom Figherss ... on 21 June, 2017

Bench: T.V. Nalawade

                                                             WP No. 6441/05
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                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                      WRIT PETITION NO. 6441 OF 2005

1.     Bhagwat Rajaram Wankhede
       (Deceased through his L.Rs.)

1.a) Sakhahari Bhagwat Wankhede
     Age: 53 Years.

1.b) Raghunath Bhagwat Wankhede
     Age: 75 Years.

1.c) Dattatraya Bhagwat Wankhede
     Age: 72 Years.
     Petitioner Nos. 1a to 1c
     R/o Mahankal Vadagon,
     Tq. Shrirampur, Dist. Ahmednagar.

1.d) Kausalyabai Vinayak Avhad
     Age: 65 Years,
     R/o Undirgaon, Tq. Shrirampur,
     Dist. Ahmednagar.

1.e) Sau. Indubai Sudhakar Kapse,
     Age: 55 Years, R/o Panache
     Pargaon,Tq. Shrigonda,
     Dist. Ahmednagar.

2.     Keshav Devram Avhad
       (Deceased through his L.Rs.)

2.a) Parigabai Keshav Avhad
     Age: 70 Years, Occu: Household

2.b) Macchindra Keshav Avhad
     Age: 50 Years.

2.c) Gorakshnath Keshav Avhad
     Age : 47 Years.

2.d) Jagannath Keshav Avhad
     Age: 43 Years.




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2.e) Ramesh Keshav Avahad
     Age: 40 Years.

          All R/o Mahankal Vadgaon
          Post Malewadi. Taluka Shrirampur,
          District Ahmednagar.

3         Bajirao Vithal Badhak
          (Deceased through his L.Rs.)

3.a) Smt. Anjanabai Bajirao Badakh
     W/o Bajirao Badakh
     Age: 65 Years.

3.b) Nivruti Bajirao Badakh
     Age: 45 years.

3.c) Ramdas Bajirao Badakh
     Age: 40 Years.

3.d) Sanjay Bajirao Badakh
     Age: 30 years.

          (Petitioner Nos. 3a to 3d
          R/o Mahankal Vadgaon,
          Post Malewadi, Tq. Shrirampur,
          Dist. Ahmednagar.

3.e) Smt. Saraswati Jaganath Bhosale
     Age: 43 Years, R/o At Waladgaon,
     Tq. Shrirampur, Dist. Ahmednagar.

3.f)      Mrs. Mangal Shivaji Thorat,
          Age: 38 Years, R/o At Malewadi,
          Tq. Shrirampur, Dist. Ahmednagar.

3.g) Mrs. Shobha Anil Modi,
     Age: 28 Years, R/o At Haregaon,
     Tq. Shrirampur, Dist. Ahmednagar.

4.        Raghunath Abaji Chormal
          Age: 72 Years.

5.        Bhagwat Genuji Badhakh
          (Deceased through his L.Rs)




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5-a) Tarabai Bhagwant Badakh,
     Age: 60 Years, Occu: Household,
     Mahankhal Vadgaon, Tq. Shrirampur,
     Dist. Ahmednagar.

5.b) Parshuram Bhagwant Badakh,
     Age: 30 Years.

5.c) Sandip B. Badakh,
     Age: 27 Years.

5.d) Surekha Ashok Chawan,
     Age: 40 Years,
     R/o Petitioner Nos 5.b to 5.d,
     Bhagur, Tal. Vaijapur,
     District. Aurangabad.

5.e) Savita Shivaji Chavan,
     Age: 37 Years,
     R/o Awalgaon, Tql. Vaijapur,
     District. Aurangabad.

5.f)   Sharada Khushalrao Chavan,
       Age: 35 Years, Occu: H.H.
       R/o At Chikalthan, Tql. Kanned,
       District Aurangabad.               ....Petitioners

               Versus

1.     The Desk Officer,
       Freedom Fighter's Pension
       Cell, General Administration
       Department, Mantralaya,
       Mumbai 32.

2.     The Collector, at Aurangabad
       Aurangabad.

3.     The Collector, At Ahmednagar
       Ahmednagar.

4.     The State of Maharashtra,
       Through: General Administration
       Department, Mantralaya,




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          Mumbai-32.                                  ....Respondents


Mr. S.D. Kulkarni, Advocate for Petitioners.
Mr. Bhushan Kulkarni, Advocate for respondent Nos 1 & 4.
Mrs. V.N. Patil (Jadhav), AGP for Respondent Nos. 2 and 3.


                                   CORAM       :   T.V. NALAWADE AND
                                                   SANGITRAO S. PATIL, JJ.

                                   DATED   :       June 21, 2017.


ORAL JUDGMENT : [PER T.V. NALAWADE, J.]

.                 The petition is filed for giving directions to respondents

to grant freedom fighter's pension to the petitioners. Both the sides

are heard.

2. It appears that initially the proceeding was filed by five

persons, but during pendency of the petition, four petitioners died

and their legal heirs have come on record to prosecute the matter.

3. The petitioners had applied for giving benefit of the

aforesaid scheme, of freedom fighter's pension and as their

applications were not considered and decided, they had filed various

proceedings like Writ Petitions Nos. 1013/1994 and 4857/1997.

Directions were given by this Court to take decision within the period

fixed by this Court. Even the contempt proceeding was filed and it

was submitted that they had supplied necessary record on the basis

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of which the matters could have been decided. The learned counsel

for petitioners submitted that when the applications were filed by the

petitioners, there was a procedure provided for deciding the matters

in Government Resolution ('GR' for short) of the year 1992 and that

procedure ought to have been followed by the respondents for

deciding the matters. The learned counsel submitted that in GR of

the year 1995, procedure was changed and additional material

mentioned in the GR was required to be produced for getting the

benefit. It is contention of the petitioners that as their applications

were already pending, the procedure prescribed in GR of 7.8.1992

ought to have been followed, but the procedure of subsequent GR

was followed and so, interference is warranted in the matters.

4. Affidavit in reply is filed by respondents in which

information is supplied on factual aspects of the matters. It appears

that there was no recommendation of Zilla Gaurav Samiti of that

district, of the districts of the petitioners for giving such benefit and

the applications moved by the petitioners before that Samiti were

rejected and so, the benefit could not have been given to the

petitioners. The relevant dates are mentioned and in almost all the

cases, in January 1995, the applications made before Zilla Gaurav

Samiti were rejected by the said Samiti.

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5. It appears that there were conflicting views of different

benches of this Court on the point involved. Ultimately the matter

was referred to the Full Bench and in the case reported as 1999

Mh.L.J. 735 [Tukaram Ramji Koli Vs. State of Maharashtra

and Ors.] this disputed point was set at rest. There was GR of

5.9.1992 in which the recommendation of Zilla Gaurav Samiti was

necessary for granting freedom fighter's pension of the State

Government. In GR of 1995 more conditions were imposed and the

applicants were required to produce the record showing that the

freedom fighters had undergone the imprisonment or there was

other record like arrest etc. and that portion is quoted by Full Bench

at para No. 3A of the judgment which is as follows :-

"3A. The freedom fighters are required to furnish the

following evidence along with their applications.

(A) The freedom fighters who have undergone the imprisonment (1) the original certificate issued by the concerned Jailor in respect of imprisonment undergone (by the freedom fighter), (AA) Freedom Fighters who remained absconded due to issuance of arrest warrant.

(1) Certificate of concerned Officer in respect of arrest warrant.

(2) If declared as absconded by the Court, then the

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certified copy of the Court Record (should be submitted).

(3) The original news report published in the relevant newspaper in respect of the absconded freedom fighter."

At para No. 8 of the judgment, the Full Bench has laid down that :-

"8. Accordingly, we answer the above questions referred to this Court as follows:-

(a) The said Government Resolution No. POS- 1093/FN.127/FF Cell Mantralaya, dated 4th July, 1995 shall apply to all pending applications before the Collector as on 4th July, 1995 except in cases where Zilla Gaurav Samiti has already recommended the case for pension to the Government.

(b) For the reasons recorded hereinabove, the decision of the earlier Division Bench in Writ Petition No. 5376 of 1995 decided on 2nd September, 1998 stands overruled.

(c) We have not examined the vires of the Government Resolution No. POS- 1093/FN.127/FF Cell Mantralaya dated 4th July, 1995. The said question is expressly left open."

6. In the present matter, not only there was absence of the

recommendations of the Zilla Gaurav Samiti, but there was decision

of Zilla Gaurav Samit and the applications made for sending the

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recommendations are rejected. This single circumstance was

sufficient for using circular of 1995 and for rejection of claim.

7. The learned counsel for the petitioners tried to take

support of some observations made by this Court in Writ Petition

No. 5496/2005 [Gajdhar s/o. Narayan Wankhede Vs. The

Desk Officer and Ors.] decided on 6.1.2017. The facts of this

case were totally different and there was already recommendations

of the Zilla Gaurav Samiti and the dispute was only in respect of