Shalini Laxman Chavan vs Union Of India And 4 Ors
2021 Latest Caselaw 14670 Bom

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                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    ORDINARY ORIGINAL CIVIL JURISDICTION
                                          WRIT PETITION (L) NO.20074 OF 2021

                    Shalini Laxman Chavan                                ... Petitioner
                               V/s.
                    Union of India & Ors                                 ... Respondents


                    Mr.Jitendra M. Pathade with Mr.Shrikant U. Radkar for the Petitioner.
                    Ms.P.H.Kantharia G.P. for the Respondent-State.

                                                     CORAM: UJJAL BHUYAN AND
                                                            MADHAV JAMDAR, JJ.

                                                    DATE      : 7TH OCTOBER, 2021.

                    P.C:-

Heard Mr.Jitendra Pathade, learned Counsel for the Petitioner and Ms.P.H.Kantharia, learned Government Pleader for the Respondent-State.

2. Petitioner before us is a 90 years old widow. She claims that her husband late Laxman R. Chavan had participated in the freedom movement in 1942. He was convicted and sentenced to imprisonment for 18 months with fine of Rs.50/- along with default stipulation under Rule 56(4) of Defence of India Rules, 1942 on 12.02.1943 for such participation. Initially he was lodged in Thane District Prison where after he was transferred to Byculla Prison on 17.04.1944. However, on 29.06.1944 he was released from prison. Laxman R. Chavan died on 12.03.1965. The only son of the Petitioner also expired thereafter.

3. It is stated that Petitioner had made an application before Respondent No.3 to obtain imprisonment certificate and accordingly on 18.12.1996 Respondent No.3 had issued imprisonment certificate bearing No.JJ/5629 of Digitally signed by HEMANT HEMANT CHANDERSEN CHANDERSEN SHIV SHIV Date: 2021.10.08 17:55:16 +0530 hcs

1.w20074.21.doc 1966.

4. State of Maharashtra formulated a scheme for freedom fighters called the Freedom Fighters Pension Scheme, 1972 (briefly "said Scheme").

5. Petitioner made application before Respondent No.3 on 16.07.1993 for grant of pension under the said Scheme.

6. However, despite long lapse of time, Petitioner has not been granted pension under the said Scheme.

7. Aggrieved, present Writ Petition has been filed seeking a direction to the Respondents to grant pension to the Petitioner or to pay ex-gratia amount.

8. On 24.09.2021 we had passed the following order :

"2. Petitioner before us is a 90 year old senior citizen and widow of late Laxman Ramchandra Chavan. It is stated that late Laxman Ramchandra Chavan was a freedom fighter who had participated in the Quit India Movement in 1942 in connection with which he had undergone imprisonment in the Byculla jail from 17.04.1944 to 11.10.1944.

3. Late Laxman Ramchandra Chavan expired on 12.03.1965.

4. Though the State of Maharashtra has framed a pension scheme for freedom fighters called Swatantrata Sainik Sanman Pension Scheme, 1980, benefit of the said scheme has not been extended to the hcs

1.w20074.21.doc petitioner.

5. According to learned counsel for the petitioner this is on account of the fact that the old records in the Byculla District Prison containing details of late Laxman Ramchandra Chavan's imprisonment may have been destroyed.

6. Be that as it may, from the available materials on record, theredoes not appear to be any dispute as to the status of late Laxman Ramchandra Chavan as a freedom fighter and as regards petitioner as the widow of late Laxman Ramchandra Chavan. If that be so then withholding of freedom fighter's pension that too for such a long period is not justified.

7. Ms.Kantharia, learned GP to obtain instructions and apprise the Court in this regard on the next date."

9. Subsequently, on 1.08.2021 Ms.Kantharia, learned Government Pleader sought for time to file affidavit. Considering the age of the Petitioner and the issue before us, this Court granted time till today vide order dated 1.10.2021.

10. Today, learned Government Pleader has tendered reply affidavit in the Court which we have accepted. The same may be kept as part of the record.

11. In the reply affidavit filed on behalf of Respondent No.2, basic stand taken is that Petitioner is not eligible for grant of pension as she has not submitted original imprisonment certificate which is a mandatory document hcs

1.w20074.21.doc required to be submitted before the authority for grant of pension as per Government Resolution dated 4.07.1995.

12. Ms.P.H. Kantharia, learned Government Pleader while resisting the writ petition has also submitted a compilation of judgments in support of her contention that documents required under the scheme will have to be submitted to be considered eligible.

13. We have heard learned Counsel for the parties at some length.

14. In Mukund Lal Bhandari Vs. Union of India, AIR 1993 SC 2127 Supreme Court considered the Freedom Fighters Pension Scheme, 1972. When it was initially framed it provided for payment of pension to freedom fighters who had suffered minimum imprisonment of six months and whose gross income did not exceed Rs.5000.00. From August 1980, the Scheme was extended to all freedom fighters irrespective of their income and as a token of honour (Samman) to them. In that case, the Government had declined claim of the claimants to receive pension under the Freedom Fighters Scheme on three grounds :-

(i) Petitioners had not produced required proof in support of their claim that they had participated in the freedom movement and were sentenced to imprisonment for six months or more;

(ii) They had filed their application before the Government after the date prescribed for filing applications;

(iii) If they satisfied the qualifying conditions they would be entitled to pension only from the date they produced required documentary hcs

1.w20074.21.doc proof in support of their claim and not from earlier date.

15. Supreme Court dealt with each of the grounds. Insofar sufficiency of proof it was held that it was not possible for the Court to scrutinize the documents which was the function of the Government. Regarding second ground, Court took the view that almost all the freedom fighters must have grown pretty old, if they were alive. Where the freedom fighters are not alive and their widows and unmarried daughters have to prefer claims, in such cases position may still be worse with regard to their knowledge of the prescribed date. If the Scheme has been introduced with the genuine desire to assist and honour those who had given the best part of their life for the country, it ill-behoves the Government to raise pleas of limitation against such claims. In fact, the Government should find out the freedom fighters or their dependents and approach them with the pension instead of requiring them to make applications for pension. That would be the true spirit of working out the Scheme, the object of which is to honour the freedom fighters. It was therefore held that there cannot be a rigid time-limit for making out such applications. Whatever be the date on which the claimants made the applications the benefits should be made available to them.

16. Supreme Court observed that it is unreasonable to expect that freedom fighters and their dependents would be readily in possession of required documents. In the very nature of things, such documents have to be secured either from the jail records or from persons who have been named in the Scheme to certify the eligibility. Thus the claimants have to rely upon third parties. What is necessary in matters of such claims is to ascertain the factum of eligibility. The point of time when it is ascertained is unimportant. The prescription of a rigid time-limit for the proof of entitlement in the very nature of things is demeaning. Therefore, Supreme hcs

1.w20074.21.doc Court held that benefit should flow from the date of the application and not from any other date.

17. We may also note that Supreme Court in State of Maharashtra Vs. Namdeo, (2013) 14 SCC 225, summed up the legal position as regards claim of freedom fighters to pension under the Freedom Fighter Pension Scheme in the following manner :

"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 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 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.

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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 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, 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 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."

18. Supreme Court in the above case 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 stipulated documents. In such cases, the claim cannot be summarily rejected for want of documents even though as per pension scheme such documents are to be provided. To meet such eventualities, Supreme Court laid down the principle that on the basis of evidence/documents/material submitted by the applicant, the Government should examine whether it is a genuine case and 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/evidence are otherwise convincing and points to the genuineness of the case, the Government in appropriate cases may not insist on strict compliance with all requirements stated in the Scheme. hcs

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19. In view of above, we pass the following order :

(i) Let the Writ Petition be admitted for hearing.

(ii) Member Secretary of District Legal Services Authority, District Raigad shall proceed to the residence of the Petitioner along with requisite number of legal aid Counsel/Para-legal volunteer and assist the Petitioner in collecting convincing material/documents/evidence which may be affidavit of neighbours or respectable persons of the locality.

(iii) After collecting material/documents/evidence the same shall be presented by the Secretary of District Legal Services Authority to Respondent No.2 who shall apply the principle of probability while analyzing the material/documents/evidence placed before him including the documents already produced where after he shall pass appropriate order in respect of the claim of the Petitioner within two months from presentation of material/documents/evidence.

(iv) In the interim, considering the age of the Petitioner and the fact that she has been pursuing her case since 1993, we direct that she shall be paid pension under the aforesaid Scheme from the month of October 2021 which shall be subject to outcome of the Writ Petition.

20. Stand over to 6th January, 2022.

      [MADHAV JAMDAR, J.]                           [UJJAL BHUYAN, J.]