Rukminbai Asaram Kale vs The State Of Maharashtra And ...
2021 Latest Caselaw 11015 Bom

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

                        WRIT PETITION NO. 8029 OF 2021

        Smt. Rukhminbai wd/o Asaram Kale,
        Age 81 years, Occu. Nil,
        R/o. Sambhaji Chowk, Behind Hotel Sagar,
        towards North Bus-stand,
        Khalwadi, Paithan, Tq. Paithan,
        Dist. Aurangabad.                ...Petitioner.

                -Versus-

1.      The State of Maharashtra,
        Through its Principal Secretary,
        General Administration Department,
        Mantralaya, Mumbai-32.

2.      The High Power Committee,
        Freedom Fighters Cell,
        19th Floor, General Administration
        Department, Mantralaya, Mumbai-32,
        Through its Member Secretary.

3.      The Desk Officer,
        General Administration Department,
        New Administrative Building,
        Freedom Fighters Cell,
        19th Floor, Mantralaya, Mumbai-32.

4.      The Collector,
        Aurangabad, Dist. Aurangabad.                            ...Respondents.

-------------------------------------------------------------------------------------------
                    Mr. V. S. Panpatte, Advocate for petitioner.
                    Mr. P. K. Lakhotiya, A.G.P. for respondents.
-------------------------------------------------------------------------------------------


                                 CORAM            :      S.V. GANGAPURWALA &
                                                         R.N. LADDHA, JJ.

W.P. No.8029/2021

RESERVED ON : 02/08/2021 PRONOUNCED ON : 13/08/2021

JUDGMENT : [PER R.N. LADDHA, J.]

Rule. Rule made returnable forthwith. Heard finally by

consent of learned Counsel for the Parties.

2. By this writ petition the petitioner Smt. Rukhminbai,

widow of Asaram Daulatrao Kale who died on 5 April 2017, claims to

have been entitled to be conferred with benefits of Pension which,

according to her, should have lawfully accrued to her deceased

husband Asaram, during his life time, under the "Swatantrya Sainik

Sanman Pension Scheme, 1980" (the 'Scheme' for short).

3. The material averments in the petition may be summarized

as under:

(a) The petitioner is the widow of Asaram Kale, who had been

claiming himself to be a freedom fighter. This Asaram Kale is claimed

to have made an application to the District Collector, Aurangabad on

November 24, 1994 which was accompanied by the requisite

documentary evidence, for grant of pension under the Scheme. The

petitioner claims that her husband and upon his death, she herself is

W.P. No.8029/2021

entitled to the benefit of the Scheme. According to the petitioner, her

husband had actively participated in the Hyderabad Liberation

Movement and as a consequence thereof had suffered various losses

and hardships. Moreover, he had to remain underground during the

period 1947-48.

(b) The petitioner says that on the eve of the Silver Jubilee of

the Independence of the Country, in the year 1972, a Central Scheme

was introduced which provided for grant of pension to freedom

fighters and their eligible dependents if the said freedom fighters had

died. Later, in the year 1980, with certain modifications, this Scheme

was renamed the "Swatantrya Sainik Sanman Pension Scheme, 1980".

(c) The monthly pension was considered a token of respect for

the contribution of freedom fighters in the freedom struggle. The

Scheme as well as the Government Resolution dated 4 July, 1995

prescribed the Eligibility Criteria for grant of pension, under which,

her husband and upon his death, the petitioner was entitled to receive

pension under the Scheme. It is the case of the petitioner that though

the District Gaurav Committee had forwarded the application made by

her deceased husband to the concerned Authority, there was no further

action taken on it. He had, therefore, made a Representation dated

W.P. No.8029/2021

February 16, 2011 to the Deputy Secretary, GAD, Government of

Maharashtra, requesting grant of pension. However, nothing was

conveyed to him. According to the petitioner, for the first time in the

month of January 2014, her husband came to know that his claim for

pension under the Scheme was rejected on 12 May 1999. Upon

learning of the rejection, he made a representation dated 17 February

2014 and also submitted Commendatory Affidavits of veteran freedom

fighters. Again, on 22 April 2015 he sent a detailed representation to

the Deputy Secretary, GAD, (Freedom Fighters Cell), Government of

Maharashtra. It is claimed by the petitioner that by letters dated 10

September 1998, 10 April 2008 and 21 June 2015; the Members of the

Parliament and Member of Legislative Assembly respectively had also

recommended the claim of her husband. Unfortunately, on 5 April,

2017 her husband died. The petitioner then obtained all relevant

documents, sought legal advice and made an application dated 9

October, 2020 to the respondent No 3, appending therewith a

Certificate purportedly issued by Police Patil of village Nandar, Taluqa

Paithan dated 7 June 1996, which was available with her and also

submitted the Commendatory Affidavits of veteran freedom fighters

with their Certificates of imprisonment.

(d) However, her claim for pension came to be turned down

W.P. No.8029/2021

by relying on Govt Resolution dated 2 June 2016, by the order dated

4 November, 2020. According to the petitioner, the decision taken by

the State Govt was erroneous as it failed to consider the material

placed on record.

4. We have heard Mr. V. S. Panpatte, learned counsel for the

petitioner and Mr. P. K. Lakhotiya, learned A.G.P. for the respondents.

5. Mr. Panpatte, learned counsel for the petitioner submits

that late Asaram Kale had participated in Hyderabad Liberation

Movement and on account of such participation, he had to suffer

various losses and hardships. Necessary documentary evidence in

proof thereof had been furnished along with the application. The

concerned Authority, however, did not appreciate the documents

produced on record in their proper perspective. Since the deceased

husband of petitioner met the criteria laid down in the Government

Resolution dated July 4, 1995, the District Gaurav Committee had also

recommended the proposal. The case of the petitioner's husband under

the Scheme was required to be determined on the basis of

probabilities. He further submits that the case of the petitioner has

been disposed of by ignoring the mandate of law and the Scheme. The

impugned orders are grossly desultory and hence not compatible with

W.P. No.8029/2021

various decisions. He relied on the following cases:

            (i)         Mukund Lal Bhandari and Ors. Vs. Union of
                        India and Ors., AIR 1993 SC 2127;

            (ii)        Gurdial Singh Vs. Union of India and Ors.,
                        (2001) 8 SCC 8;

            (iii)       State of Tamil Nadu and Anr. Vs. A. Manickam
                        Pillai, AIR 2010 SC 670;

            (iv)        Judgment in Writ Petition No.7189/2014,
                        Smt. Laxmibai wd/o. Baburao Kadam Vs. The
                        State of Maharashtra and Ors., dated
                        26.3.2019;

            (v)         Judgment in Writ Petition No. 2632/2011,
                        Punjaram s/o. Madhav Indewad Vs. The State
                        of Maharashtra, dated 28.8.2013;

            (vi)        Judgment in Writ Petition No. 2831/2000
                        along with connected Writ Petitions
                        Kishansinha s/o. Tukaramsinha Chandel Vs.
                        The State of Maharashtra and Ors., dated
                        26.7.2010;

            (vii)       Tukaram Ramji Koli Vs State of Maharashtra &
                        Ors., 1999(3) Mh.L.J. 735; and

            (viii)       Judgement in Writ Petition no. 4633 of 2016,
                        Sarubai w/o Narayansinh Thakur Vs The State
                        of Maharashtra & Ors., Dated 04.3.2020.

6. In the above premise, the learned counsel for the

petitioner prayed for quashing and setting aside the impugned orders/

communications dated 12 May, 1999 and 04 November, 2020

respectively, further prayed for grant of pensionary benefits under the

W.P. No.8029/2021

Scheme to the petitioner.

7. Mr. P. K. Lakhotiya, learned A. G. P. appearing for the

respondents, on the other hand, submitted that the husband of the

petitioner had applied for grant of pension in the year 1994; the claim

was considered and rejected by the concerned Authority. It was

communicated to him on 12 May 1999 and the said order had become

final. The order was not challenged. After an enormous delay of 22

years of the rejection of deceased Asaram's claim, this petition is filed.

According to him, the petition suffers from delay and latches. Again,

the documentary evidence filed by the husband of the petitioner did

not meet the conditions laid down in the Scheme and Government

Resolution dated July 4, 1995. The mere fact that some certificates

had been submitted or recommendations had been made would not

entitle the husband of the petitioner to pensionary benefits. The

benefit accorded by the said Government Resolution was

circumscribed by the conditions laid down in the said Scheme and the

Government Resolution dated July 4, 1995.

8. As a second limb, the learned A. G. P. invited our attention

to the Government Resolution dated June 2, 2016 and submitted that

the Government has taken a decision, not to sanction the pensionary

W.P. No.8029/2021

benefits to a freedom fighter after his death, even if his proposal was

under consideration, at the time of his death.

9. Before adverting to the submissions canvassed across the

Bar, it would be appropriate to have a look at the Government

Resolution dated July 4, 1995. The said Government Resolution enlists

the documents on the production of which a person could substantiate

his participation and involvement in the freedom movement. The

conditions enumerated in the said Government Resolution are as

under :

"(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 to remain away from his house or
            family.
               (b)      He had to give up education or had been
            expelled from the educational institution.
               (c)      He was so severely beaten up by the police that
            he suffered a disability.


            (2)         The certificates of two freedom fighters of the area

who were convicted for a minimum of two years or who were declared absconding or who remained absconding for at least two years. These certificates should be accompanied

W.P. No.8029/2021

with the copies of Jail Certificates showing incarceration or proclamation of absconding as well as duly verified affidavits of the freedom fighters issuing the certificates.

(3) Certified copy of the Government record of that period, if any, available regarding the fact that he remained underground.

(4) A copy of the newspaper in which the news item was published containing information about the name of the applicant being an underground freedom fighter.

(5) While submitting their opinion, the District Gaurav Committee shall clearly mention the criteria in respect of the said opinion."

10. The aforesaid Government Resolution itself mentions the

documents which are required to be produced along with the

application. Upon perusal of record it is seen that the documentary

evidence filed by the husband of the petitioner did not meet any of the

criteria prescribed by the said Government Resolution. It is the case of

the petitioner that her deceased husband had made an application on

November 24, 1994 for grant of pension under the Scheme and had

also appended therewith a certificate of Camp Incharge Pralhadrao

Kulkarni and affidavits of veteran freedom fighters Keshav Ware and

Gopalrao Chavan, respectively. However, upon perusal of letter dated

W.P. No.8029/2021

October 17, 1997 addressed to the Deputy Secretary, GAD, Mumbai by

the office of the Collector, Aurangabad, it is seen that deceased Asaram

had submitted two applications dated November 24, 1994 and

December 6, 1994, which were in the prescribed format for grant of

pension. The said applications were accompanied by a photocopy of

his own affidavit dated October 26, 1994; his Age Certificate issued by

the Civil Surgeon and a photocopy of affidavit of veteran freedom

fighter Keshav Tulshiram Ware only. Prior to rejection of his pension

claim vide communication dated December 30, 1994, respondent No.4

had called upon Asaram to submit the following documents:

(a) Proof of declaration regarding proclaimed offender under Cr.P.C.;

(b)     Proof of seizure warrant of property;

(c)     Proof from the record of police or Magistrate about having his

        absconded;

(d)     Age proof from Civil Surgeon or school;

(e)     Affidavits of two freedom fighters attested by the Resident

        Deputy Collector; and

(f)     Original certificate of the Camp Leader.

From this, it is crystal clear that deceased Asaram did not file original

documents. He chose to file only a photocopy of his own affidavit as

well as a photocopy of an affidavit of freedom fighter Keshav Ware.

W.P. No.8029/2021

Thereafter, on September 16, 1997 as well, he was asked to submit

original documents. However, he did not submit the same till his

application was rejected as communicated by the letter dated 12 May,

1999. We find photocopies of some affidavits, on record, namely that

of Khanderao Khalse dated 04 April, 2008, Babanrao alias

Kashinathrao Kulkarni dated 20 January, 2010 and Nivrutti Raut dated

16 September, 2004. It is obvious that these were submitted long after

his application was rejected. Further, he failed to submit the certificate

of the problems and hardships faced or undergone by him following

his participation in the freedom movement nor had he filed proof that

he had to remain away from the house or that he had to quit

education or that he was expelled from the educational institution or

that he was so severely beaten up by the police that he suffered a

disability. He further failed to produce any newspaper containing a

news item that he was reported to be an underground freedom fighter

nor did he produce any Government Record stating or even suggesting

that he was an underground freedom fighter. Though he claimed to

have remained underground, he was not declared a proclaimed

offender, nor any award for his arrest was announced. There is no

material available on record to show that any detention order was ever

issued but was not served upon him. In short, the husband of the

petitioner did not furnish the required proof as contemplated under

W.P. No.8029/2021

the Scheme and the Government Resolution dated July 4, 1995. On

the contrary, by his communication dated 17 February, 2014, he almost

admitted that he did not possess nor could he produce the mandatorily

required supporting documents. On the contrary, he made an attempt

to argue that in the circumstances of his case, these documents were

not required at all. While so arguing, he made a clear reference to the

letter dated 12 May, 1999 whereby he was communicated the rejection

of his application as aforesaid.

11. Again, even if deceased Asaram had submitted such affidavits to

the concerned Authority before rejection of his application, his claim

to pension could not have been considered. In the case of Ramkishan

s/o. Narhari Sangewar Vs. State of Maharashtra and Ors., 2016 (5)

Mh.L.J. 195, a Division Bench of this Court to which one of us (S.V.

Gangapurwala, J.) was a party, had refused to place implicit reliance

on bare affidavits. In this context, useful reference may also be made

to the Judgement of the Hon'ble Supreme Court in the case of State of

Maharashtra Vs. Namdeo, (2013) 14 SCC 225, wherein the Hon'ble

Supreme Court in paragraphs 20 and 21 observed 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

W.P. No.8029/2021

altogether, is fraught with 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 materials 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 allowed merely on such affidavits, that would amount to

W.P. No.8029/2021

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."

12. It is therefore, clear that pension under the Scheme can

only be sanctioned upon proof as prescribed by the Scheme and in no

other manner. As long as such proof is not available, the benefit of the

Scheme cannot be conferred upon the applicant. This aspect is

highlighted in the cases of West Bengal Freedom Fighters'

Organization Vs. Union of India and Ors., AIR 2004 SC 5143; Union of

India Vs. Bikash R. Bhowmik and Ors., (2004) 7 SCC 722; and Union

of India Vs. A. Alagam Perumal Kone and Ors., AIR 2021 SC 1212. In

the instant case, the concerned Competent Authority had rejected the

claim of the husband of the petitioner on the ground that the

application was not supported by the requisite documents.

13. It further appears from the record that the husband of the

petitioner made an application for grant of pension as far back as in

the year 1994. His claim under the Scheme was however, rejected in

the year 1999. Thereafter, for about a period of 18 long years he was

simply content with forwarding a communication dated 16 February

2011 threatening to undertake fast unto death in front of the

W.P. No.8029/2021

Mantralaya. Again, on 17 February 2014 & 22 April 2015 he made

written representations to buttress his claim by attempting to furnish

reasons for non compliance of conditions prescribed by the

Government Resolution dated 4 July 1995. We are of the firm view

that the reasons which had been put forth by deceased Asaram, the

original claimant, for non-compliance of the mandatory requirements

as laid down by the Government Resolution dated 4 July 1995 were

not valid and adequate to exempt him from the said conditions.

Moreover, there is no such provision of exemption in the said

Government Resolution. On the contrary, to claim pension under the

Scheme, one has to furnish the required proof as contemplated by the

Scheme & unless a person fulfills the eligibility criteria as prescribed in

the Scheme, he or she cannot claim such pension as a matter of right.

14. There is yet another vulnerability in the claim of the

present petitioner in that according to her the fact of rejection of the

application for pension made by her deceased husband Asaram, was

learnt by him in the year 2014. In the first place, there is nothing in

the entire petition to explain as to how and in what manner deceased

Asaram came to know in the year 2014 that his application dated 24

November, 1994 was rejected in the year 1999. His representations

dated 17 February, 2014 and 22 April, 2015, do not even contain a

W.P. No.8029/2021

whisper that he had come to know of the rejection of his application of

the year 1994 for the first time in the year 2014. This contention of the

petitioner thus has no legs to stand upon.

15. Furthermore, the submission is required to be appreciated

in the backdrop of the fact that the impugned order dated 12 May,

1999 came to be challenged after an inordinate delay of 22 long years

of rejection of the claim of the petitioner's husband, who, incidentally,

during his life time did not choose to challenge the same before this

Court. In any case, the petitioner herein has no locus standi to lay a

claim to pension under the Scheme once her deceased husband's claim

to the same was rejected by the concerned Authority.

16. Again, the Government Resolution dated June 2, 2016

extinguishes the claim of a dead Applicant and his or her spouse or

heirs. The relevant portion of the aforesaid Government Resolution

reads thus:

"1. In a case, sanction of Freedom Fighter pension is under consideration of State Government and a decision as to sanction or rejection of the pension is not taken and the applicant dies pending such decision, his application shall not be considered. On the death of the applicant, the spouse or heirs shall not be entitled to

W.P. No.8029/2021

arrears in his name.

2. In a case, the State Government has taken a decision to reject the Freedom Fighter Pension and thereafter the applicant dies, then the spouse (husband or wife) of the applicant cannot apply for review of the decision (though the evidence of participation in freedom struggle is available after death of the applicant). Such application, if made, shall not be considered."

It is pertinent that this Government Resolution is not under challenge

in the present petition. In the circumstances, the petitioner's claim

cannot be countenanced.

17. We have gone through the Judgments relied upon by the

learned counsel for the petitioner. After referring to the various

Judgments, cited above, the learned counsel for the petitioner

submitted that a strict interpretation is not called for while considering

the grant of pension under the Scheme and a liberal approach should

be adopted. Further, according to him, the facts in the present petition,

are quite similar to the facts obtaining in an unreported Judgment of

this Court dated March 4, 2020 in Sarubai Narayansingh Thakur Vs.

The State of Maharashtra and others, W.P. No.4633 of 2016. In that

W.P. No.8029/2021

case, the claim for the grant of pension was pending and was not

decided during the lifetime of the applicant, who died on 19 July,

1997, long before the Government Resolutation dated 02 June, 2016

was brought into effect. However, in the present case, the facts are

totally different. The claim for pension made by deceased Asaram was

rejected during his lifetime in the year 1999. This Asaram, as stated

above, died on 05 April, 2017, long after his claim for the grant of

pension under the Scheme was rejected. Thus, the aforesaid

unreported ruling cited by the learned counsel for the petitioner, is

clearly distinguishable.

18. Importance of the role of freedom fighters in the

movement for independence of the country is highly appreciated.

India's freedom movement against the foreign yoke was witness to an

overwhelming participation of people throughout the country. While

many selflessly gave their lives to protect the dignity of their

motherland, others got injured and embraced imprisonment. They

have made the highest sacrifice at the altar of the freedom struggle

and for that reason, deserve the highest respect. The Scheme for grant

of pension to the freedom fighters is a benevolent gesture and deserves

to be considered liberally, but the same cannot be construed in such a

manner that the requirements prescribed for the grant thereof are

W.P. No.8029/2021

rendered a dead letter.

19. Resultantly, we find no substance in the petition &

accordingly the same stands dismissed.

Rule is discharged. There shall be no order as to costs.

 [ R.N. LADDHA, J.]                        [S.V. GANGAPURWALA, J.]


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