Kumari Sadhana Bera vs Union Of India And Others
2023 Latest Caselaw 6705 Cal

AD-14
Ct No.09
04.10.2023
TN
                            WPA No. 19043 of 2023

                             Kumari Sadhana Bera
                                      Vs.
                            Union of India and others


             Mr. Ramdulal Manna,
             Ms. Manju Manna (Dey),
             Mr. Sabyasachi Mondal,
             Mr. Sayan Mukherjee,
             Ms. Payel Khanra
                                                   .... for the petitioner

             Mr. Asok Kumar Chakrabarti,
             Mr. Kumar Jyoti Tewari
                               .... for the respondent nos. 1, 2 & 3

Mr. Tanay Chakraborty, Ms. Mrinalini Majumdar ...for the State

1. Learned counsel for the petitioner contends that

the petitioner is an unmarried dependant

daughter of her father who was a freedom fighter

and was getting freedom fighter pension under

the Swatantrata Sainik Samman Pension

Scheme.

2. Learned counsel contends that the petitioner's

application for the said pension was refused by

the respondent authorities initially, upon which a

writ petition was moved. Subsequently, the

petitioner's application was considered and was

refused on the ground of long lapse of time in

making the application after the expiry of the

petitioner's father. The other ground cited by the

respondents was that the petitioner was regularly

employed from 1979 to 2007 till superannuation.

3. It is argued by learned counsel for the petitioner

that it is well-settled that the question of

limitation has to be looked into liberally by the

courts. Learned counsel submits that in a welfare

State, the question of limitation cannot be an

absolute bar in grant of a relief, if the petitioner

was otherwise entitled to it in law. Learned

counsel submits that in several cases, this court

and the Supreme Court has taken a lenient view

in such context.

4. It is submitted that the petitioner acted in the

Gandhi Ashram and earned a paltry honorarium.

5. Learned Additional Solicitor General cites State of

Madhya Pradesh and another vs. Bhailal Bhai

and others, reported at AIR 1964 SC 1006. By

placing particular reliance on paragraph 21 of the

same, it is argued that the provisions of the

Limitation act do not as such apply to the grant

of relief under Article 226. However, the

maximum period fixed by the legislature as the

time within which the relief by a suit in a civil

court must be brought may ordinarily be taken to

be a reasonable standard by which delay in

seeking remedy under Article 226 can be

measured. The courts may consider the delay

unreasonable even if it is less than the period of

limitation prescribed for a civil action for the

remedy but where the delay is more than this

period, it will almost always be proper for the

court to hold that it is unreasonable.

6. The period of limitation prescribed for recovery of

money paid by mistake under the Limitation Act

is three years from the date when the mistake is

known, it was observed.

7. Learned Additional Solicitor General reiterates

the grounds as cited by the respondent

authorities and submits that in view of the

petitioner having regularly earned an income

from 1979 to 2007, it cannot be said that the

petitioner is eligible to the pension-in-question.

8. That apart, it is argued that contradictory

statements have been made in the writ petition,

on the one hand the petitioner claiming that the

petitioner is the only unmarried and unemployed

daughter of her father and on the other that the

petitioner's father left behind his sons and

daughters, who are the other legal heirs of the

father.

9. The petitioner has solely applied for the family

pension, depriving other legal heirs of the

deceased freedom fighter. Moreover, she was not

a nominee in the pension account, it is

contended.

10. Thus, it is argued, the petitioner's application for

family pension was rightly rejected under the

scheme.

11. A perusal of the scheme-in-question indicates

that after the death of the pensioner, the transfer

of pension to the spouse/daughter will only be

considered if she applies for transfer of pension

within six months of the death.

12. Clause 5.2 further stipulates that application

received after six months shall not be considered

by the Bank but referred to the Ministry, which

shall then take a view whether to allow

dependent pension or not or whether any arrears

are to be paid.

13. Clause 6.1.2 indicates that the Banks must

ensure that a dependent pension is not

sanctioned to a spouse or a daughter of a

freedom fighter, if, inter-alia, the

spouse/daughter is working in a private sector or

having his/her own business/activity than

income from such job/activity exceeds

Rs.20,000/- per month.

14. In the circumstances of the present case, it is

found that the petitioner was earning an

honorariam from a "Gandhi Ashram" from the

year 1979 to 2007 till her superannuation.

15. It is to be noted that the father of the petitioner

expired as long back as on February 18, 1996.

However, the petitioner made her first claim for

family pension only on July 11, 2007.

16. The inordinate delay of 11 years in between is not

explained by the petitioner.

17. Moreover, the conduct of the petitioner itself

indicates that the reason for the petitioner not

claiming pension previously despite the demise of

her father in the year 1996 was her employment,

which continued till 2007 when she was

superannuated.

18. The co-incidence is a bit too much in respect of

the year when the petitioner was superannuated

from her service and the year when she made an

application for family pension, both being in the

year 2007.

19. Thus, the petitioner, for all practical purposes,

could not be said to be a dependant of her father,

who had earned his rights for getting the freedom

fighter pension as per his own acts.

20. The petitioner is merely a chance seeker, who

waited till her superannuation from a job and

only thereafter applied for being eligible for the

purpose of getting her father's freedom fighter

pension.

21. The scheme-in-question contemplates honouring

the freedom fighters, on whose sacrifice the

nation stands. It was justified on the part of the

respondent authorities to refuse the prayer of the

petitioner, not only because the prayer was made

after a long lapse of 11 years from the date of

demise of her father but also on the ground that

the petitioner was merely seeking to take a

chance after having retired from her job.

22. In any event, the rider in Clause 6.1.2 regarding

income not exceeding Rs.20,000/- applies to a

person having his or her own business/activity.

23. Even without going into the exact quantum of the

honorariam/income earned by the petitioner, she

was otherwise not eligible in view of Clause 5.2,

by virtue of which she was to apply within six

months. Although the discretion has been left on

the respondent authorities to consider an

application, even if filed after the period of six

months, there has to be some proportionality in

the delay occasioned by an applicant and the

stipulated time as per the concerned scheme.

Clause 5.2 of the concerned scheme clearly

envisages that the application under normal

circumstances has to be made within six months

from the date of death.

24. The inordinate delay of 11 years after the demise,

by no stretch of imagination, can be said to have

any proportionality with the said period as

envisaged in the scheme. Thus, the refusal of the

respondents is valid on all such scores.

25. Insofar as the question of limitation is concerned,

the issue which arises here is not the limitation

in filing the writ petition but the limitation in the

petitioner applying in the first instance for the

pension-in-question.

26. The judgments cited or relied on by the parties

primarily revolve around the domain of grant of

relief under Article 226 of the Constitution of

India which is not squarely applicable in the

present case. In fact, the ratio of State of Madhya

Pradesh and another vs. Bhailal Bhai and others

is somewhat apt in the present circumstances,

since in the present case, the date on which the

right of the petitioner to claim the pension first

accrued was the date of demise of her father on

February 18, 1996.

27. After lapse of three years thereafter, it cannot be

said that the petitioner's claim for the quantum

of money was valid.

28. The question of continuity of the cause of action,

which might have alleviated the rigour of

limitation, would only arise in the event the

petitioner had applied within the time stipulated

for a money claim in law.

29. Having not done so, and having waited for her

superannuation, the petitioner was not entitled to

get the benefit of the freedom fighter pension

scheme.

30. On a more basic level, the petitioner was not a

dependant of her father at the time of his demise

and was having an income, thus not being

entitled to the pension at the time of her father's

death.

31. Hence, there is no scope of interference with the

refusal of the respondents to pay the family

pension to the petitioner under the freedom

fighters' pension scheme.

32. Accordingly, WPA No. 19043 of 2023 is

dismissed, without any order as to costs.

33. Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)