Shivram Rama Lokhande vs The State Of Maharashtra And ...
2017 Latest Caselaw 432 Bom

                                   1                         wp7598.13

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                AURANGABAD BENCH, AURANGABAD

                     WRIT PETITION NO. 7598 OF 2013


Shivram s/o Rama Lokhande,
age 87 years, occ. Nil,
R/o Paradh, Tq. Bhokardan,
District Jalna                               ...Petitioner
                     
             VERSUS

1]    The State of Maharashtra,
      through Principal Secretary,
      General Administration Department,
      (Freedom Fihter's Section),
      Mantralaya,
      Mumbai-400 032,

2]    Freedom Fighter's High Power
      Committee, New Administrative
      Building, 8th Floor,
      Mantralaya, Mumbai-32,
      through its Member Secrertary,

3]    Desk Officer, 
      General Administration Department,
      (Freedom Fighters Section),
      Mantralaya, Mumbai-400 032,

4]    The Collector, Jalna,
      District Jalna                         ...Respondents

                                   .....
Shri S.R.Choukidar, advocate h/f
Shri V.S.Panpatte, advocate for petitioner
Smt. M.A.Deshpande,  A.P.P.  for respondent nos. 1 and 4
Shri Bhushan Kulkarni, advocate for respondent nos. 2 and 3
                                    .....




::: Uploaded on - 07/03/2017                 ::: Downloaded on - 08/03/2017 00:39:22 :::
                                         2                           wp7598.13

            CORAM  :  S.V.GANGAPURWALA & K.L.WADANE, JJ.

DATE OF RESERVING THE JUDGMENT : 1. 2.2017 DATE OF PRONOUNCEMENT OF THE JUDGMENT : 3.3.2017

J U D G M E N T : (Per K.L.Wadane, J.)

Rule. Rule made returnable forthwith. Heard finally

with the consent of learned counsel for the respective parties.

2. The petitioner assails the order passed by respondent

no.2 dated 9.10.2012 whereby claim of the petitioner for grant

of Sanman Pension as underground freedom fighter is rejected.

3. The brief facts of the case may be stated as

follows : -

It is the contention of the petitioner that he had

participated in freedom movement called as "Hyderabad Mukti

Sangram" during the period 1947-48 and has worked as

underground freedom fighter in the said movement. The

3 wp7598.13

petitioner had actively participated and involved in the activities,

such as :

(i) Campaigning the people against Erstwhile Nizam.

(ii) Distributed pamphlets to the people against Nizam Government.

(iii) Collection of funds for the movement.

(iv) Supply of arms/weapons and information to the volunteers.

(v) Providing meals to the Senior volunteers.

(vi) Sharing secret information of police movement to the workers.

          (vii)      Arranging for attacks on police.

          (viii)     Cutting of trees on Government land.

          (ix)       Making arrangement for meeting of Senior 
                     freedom fighters.

4. The petitioner had worked as underground freedom

fighter under the leadership and guidance of veteran freedom

fighter Wamanrao Lokhande, Khanderao Khalse and had

participated and taken training at Jambhora Camp.

4 wp7598.13

5. The Government of India has introduced the pension

scheme, namely "Swabhiman Sanman Pension" whereby the

persons who fought in various freedom struggles and

participated were declared to be entitled and eligible for the

benefits flowing from the said scheme.

6. The petitioner submitted an application to respondent

no.1 on 29.12.1981 requesting the respondents to grant

Sanman Pension as underground freedom fighter for his

participation in the Hyderabad Mukti Sangram movement.

7. The Collector/respondent no.4 by communication

dated 20.8.1984 informed to respondent no.3 that the petitioner

had participated in the movement and is eligible to get the

Pension, but the respondent no.2 has not taken any decision.

8. On 5.1.1982 the petitioner forwarded an application to

the respondent in prescribed form, so also the affidavit of one

Janu Narwade, however, the claim of the petitioner was

5 wp7598.13

rejected by respondent no.2 on 14.5.1999 without giving any

special reason. Said decision was not communicated to the

petitioner. The petitioner came to know about rejection of his

claim in the year 2012.

9. Again on 1.3.2012 the petitioner has submitted an

application for reconsideration of his claim with affidavit of one

Khanderao Khalse. Subsequently, the petitioner was given

questionnaire to which he has answered. It is further

contended by the petitioner that the claim of the petitioner was

accepted by two members of the Committee, however, the

Hon'ble Chief Minister has disapproved the same and

accordingly it was communicated by the impugned

communication, dated 9.10.2012.

10. The claim of the petitioner was rejected on the ground

that there was no evidence to show that the petitioner was

required to stay away from home. He was required to leave the

education or expel from the education or he suffered atrocities

6 wp7598.13

from police and also suffered disablement. Similarly, there is

no evidence on record to show that the petitioner suffered

imprisonment for two years or was proclaimed offender. The

petitioner had not submitted any Government record certifying

that the petitioner was underground freedom fighter, nor he

submitted a document in the form of news paper indicating that

he was underground freedom fighter. Lastly, the claim of the

petitioner was not recommended by Zilla Gaurav Samiti.

11. Affidavit on behalf of respondent nos. 1 to 3 is placed

on record and it is contended that the case of the petitioner is

governed as per Government Resolution dated 4.7.1995 and

the criteria or the conditions laid down in the afore said

Government Resolution have not been complied with by the

petitioner. Therefore, the petitioner is not entitled to claim

Sanman Pension.

12. The proposal of the petitioner was placed before Zilla

Gaurav Samiti on 24.3.1998. The Zilla Gaurav Samiti did not

7 wp7598.13

recommend the name of the petitioner for grant of Sanman

Pension. On 4.7.1995 the proposal of the petitioner was placed

before the High Power Committee. The High Power Committee

rejected the proposal and accordingly it was communicated to

the petitioner.

13. It is further contended that the petitioner has

produced Xerox copy of the list of persons who participated in

the movement, however, the original thereof was not available

with the Tahsildar. When the matter was placed before

respondent no.2 for consideration, the Member Secretary and

Sabhapati expressed their views in favour of the petitioner,

however, the Chairman of the Committee i.e. the Hon'ble Chief

Minister rejected the proposal.

14. The original record and proceeding of the file is

available for perusal. We have gone through the entire record.

8 wp7598.13

15. We have heard the arguments of Mr. Panpatte,

learned counsel for the petitioner and Mrs. Deshpande, learned

A.G.P. for the respondents/State.

16. Mr. Choukidar, learned counsel for the petitioner has

contended that when the petitioner has initially submitted

application for grant of Sanman Pension, there was no

necessity to recommend the name of the petitioner by Zilla

Gaurav Samiti, as Zilla Gaurao Samiti was not in existence at

that time. Therefore, the Government Resolution, dated

4.7.1995 is not applicable.

17. Secondly Mr. Choukidar argued that two member of

the High Power Committee has expressed their opinion in

favour of the petitioner and have recommended to grant

Sanman Pension to the petitioner. In such situation, the

Hon'ble Chief Minister has no power to reject it, since majority

members have recommended the name of the petitioner.

9 wp7598.13

18. Thirdly, Mr. Choukidar contended that the name of

the petitioner is appearing in the list of the persons who actually

participated in the movement including underground freedom

fighters. The said list is produced on record, which shows the

name of the petitioner therein.

19. According to Mr. Choukidar this is a basic document

on which it can safely be inferred that the petitioner has actively

participated in the Hyderabad Mukti Sangram movement as

underground freedom fighter.

20. As against this, the learned A.G.P. has argued that

when the proposal of the petitioner was placed before the High

Power Committee for its consideration, at that time the

Government Resolution, dated 4.7.1995 was in existence and

the conditions laid down in the afore said Government

Resolution are not complied/fulfilled. So the petitioner is not

entitled to claim the Sanman Pension.

10 wp7598.13

21. We have gone though the averments of both the

sides and heard the arguments advanced by them.

Considering the rival claim of the parties, it is necessary to

determine whether the petitioner has fulfilled all the criteria as

per the Government Resolution of 1995 to get Sanman

Pension.

22. We have perused the Xerox copy of the list produced

on record, which is not an authentic document. Therefore, it is

unsafe to rely upon contents of the Xerox copy of the list.

Further, it is argued by Mrs. Deshpande, learned A.G.P. that

the Zilla Gaurav Samiti has not recommended the name of the

petitioner. In such circumstances, respondent no.2 has rightly

rejected the claim of the petitioner.

23. Admittedly the petitioner has not produced any

evidence to show that he was required to stay away from his

home, nor he was required to leave the education or that he

was not expelled from the educational institution. He further

11 wp7598.13

failed to establish that he was subjected to any kind of atrocities

by police due to his participation in the freedom movement.

There is no evidence on record to show that the petitioner has

undergone imprisonment for two years or he was proclaimed

offender.

24. Though it is the contention of the petitioner that since

he was underground freedom fighter, his name did not figure in

any of the news paper and further it is contended that at the

initial stage the Zilla Gaurav Samiti was not in existence.

Therefore, question of its recommendation did not arise. It is

material to note that except the affidavit of freedom fighter,

nothing is placed on record to show that he had actively

participated in the freedom fighters movement. The Xerox copy

of the list of the freedom fighters, who attended the camp in the

year 1947-48 is placed on record in which the name of the

petitioner figured. However, we are of the opinion that since

this document is Xerox copy, it is unsafe to believe on such

document. The petitioner failed to produce the certified copy of

12 wp7598.13

the list of freedom fighters which is one of the important

condition. It is said that the Tahsil Office also does not have the

original.

25. In such situation, the claim of the petitioner for grant

of Sanman Pension on the basis of mere affidavit of freedom

fighter is not sufficient, as it ought to have been coupled with

the other documents showing participation of the petitioner in

the movement and/or having suffered because of such

participation in any of the ways as stated in Government

Resolution, dated 4.7.1995.

26. On perusal of the minutes of the High Power

Committee, it reveals that the Department has referred the

available evidence on record. On perusal of further contents of

the minutes it appears that point wise reasons are recorded

about available evidence, and based upon such evidence the

Department has recommended to reject the proposal of the

petitioner. Based upon such reasons, the Hon'ble Chief

13 wp7598.13

Minister has rejected the proposal.

27. In such circumstances, we are of the opinion that the

opinion expressed by the Hon'ble Chief Minister is based upon

the factual aspects. The recommendation made by other two

members i.e. Member Secretary and Sabhapati are without any

basis and contrary to the factual aspects of the matter. Further

more, the Zilla Gaurav Samiti has not recommended the name

of the petitioner and their opinion/finding is based upon the

enquiry made by them.

28. Mr. Choukidar, learned counsel for the petitioner has

placed reliance on the judgment of this Court in the case of

Tukaram s/o Ramji Koli and others vs The State of

Maharashtra and others, reported in 2000 (1) Bom.C.R. 686

to contend that the petitioner has applied for pension in the year

1982. It cannot be said that the claim/petition of the petitioner

submitted in the year 1982 was pending for consideration.

14 wp7598.13

From the record, it appears that it was rejected long back and

subsequently after the Government Resolution of 1995 the

petitioner has again submitted an application in the format for

reconsideration of his claim. Obviously, the provisions of the

Government Resolution of 1995 are applicable to the facts of

the present case.

29. In view of the above, we find no merit in the Writ

Petition. therefore, it is liable to be dismissed and accordingly it

is dismissed with no order as to costs.

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

dbm/wp7598.13