Unjha Nagarpalika vs State Of Gujarat
2022 Latest Caselaw 9231 Guj

     C/LPA/1347/2022                          ORDER DATED: 18/10/2022




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/LETTERS PATENT APPEAL NO.1347 of 2022
                           In
      R/SPECIAL CIVIL APPLICATION NO.13500 of 2021
                          With
  CIVIL APPLICATION (FOR INTERIM RELIEF) NO.1 of 2022
                            In
        R/LETTERS PATENT APPEAL NO.1347 of 2022
=========================================
                          UNJHA NAGARPALIKA
                                Versus
                           STATE OF GUJARAT
=========================================
Appearance :
MS KRUPA P. SONI FOR MR MEHUL H RATHOD for the Appellant.
MS DIVYANGNA JHALA, AGP ON ADVANCE COPY SERVED TO GOVERNMENT
PLEADER for the Respondent No.1.
MR CHINTAN V ACHARYA for the Respondent No.2.
=========================================

 CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
       and
       HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                     Date : 18/10/2022
                       ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A. J. DESAI)

1. By way of the present appeal under Clause 15 of the Letters Patent, the appellant - original respondent No.2 has challenged oral judgment dated 9.3.2022 passed by learned Single Judge in captioned writ petition by which the writ petition filed by the respondent No.2 herein - original petitioner challenging order dated 11.9.2020 passed by the appellant - Nagarpalika relying upon Rule 91 of the Gujarat Civil Services (Pension) Rules, 2002 holding that since the original petitioner had remarried, the family pension was discontinued, was allowed and the said order dated 11.9.2020 was quashed and set aside and the appellant Nagarpalika was directed to resume paying the benefit of family pension to the

C/LPA/1347/2022 ORDER DATED: 18/10/2022

original petitioner w.e.f. 1.1.2013.

2. We have heard Ms. Krupa P. Soni, learned advocate appearing for Mr. Mehul H. Rathod, learned advocate for the petitioner and Mr. Chintan V. Acharya, learned advocate appearing for the respondent No.2 - original petitioner on caveat.

3. The short facts arise from the record are as under :-

4. That husband of the original petitioner, namely , Dashrathbhai Ramjibhai Patel was working as peon with the appellant Nagarpalika and he died on 21.8.2010. Thereafter, the original petitioner i.e. Sarojben Dashrathbhai Ramjibhai Patel was getting family pension for a period of two years i.e. upto 9.11.2012. Thereafter, the family pension was stopped to the original petitioner on the ground that original petitioner had remarried on 28.1.2012 to one Savjibhai Pathubhai Rajgor which marriage was registered on 29.2.2012.

5. Hence, the original petitioner preferred writ petition and learned Single Judge after hearing the parties, allowed the writ petition of the original petitioner as stated herein above.

6. Ms. Krupa P. Soni, learned advocate appearing for the appellant - Nagarpalika would submit that learned Single Judge has erred in allowing the writ petition of the original petitioner by not appreciating the fact that the original petitioner had remarried and hence, as per Rule 91 of the Gujarat Civil Services (Pension) Rules, 2002, the person is not entitled for family pension if he or she has remarried. She would further submit that said rule would indicate

C/LPA/1347/2022 ORDER DATED: 18/10/2022

that the period for which family pension is payable, shall be in case of a widow or a widower until the death or remarriage, whichever is earlier. She, therefore, would submit that the appeal may be admitted and the order of learned Single Judge may be quashed and set aside.

7. On the other hand, learned advocate Mr. Chintan V. Acharya appearing for the respondent No.2 herein - original petitioner would submit that the original petitioner had preferred Hindu Marriage Petition No.42 of 2012 before the Civil Court, Deesa to declare the marriage of the original petitioner with Savjibhai Pathubhai Rajgor as null and void. The said petition was dismissed by order dated 24.8.2015. Against the said order, the original petitioner has preferred Regular Civil Appeal No.28 of 2015 and the learned 2nd Additional District Judge, Deesa allowed the appeal of the original petitioner and the marriage of the original petitioner with Savjibhai Pathubhai Rajgor was decalred as void. He would further submit that the said order has become final and hence, learned Single Judge has rightly accepted the petition of the original petitioner. He, therefore, would submit that the present appeal may be dismissed.

8. We have heard learned advocates appearing for the respective parties. Learned advocate appearing for the appellant has failed to establish contrary facts which have been recorded by learned Single Judge. When the second marriage of the original petitioner was held to be void by competent Court of law, it cannot be said that the original petitioner has remarried and hence, she cannot be said to have remarried and on that basis, family pension cannot be withheld. Learned Single Judge while accepting the

C/LPA/1347/2022 ORDER DATED: 18/10/2022

petition of the original petitioner has considered all the aspects of the matter, particularly, Rule 91 of the Rules and discussed in detail about the same. Relevant findings recorded by learned Single Judge in paragraphs 10 to 12 reads as under :-

"10. What therefore is evident from the facts

narrated herein above is that the stand of the

Nagarpalika appears to be that Rule 91 will be

triggered, inasmuch as, the petitioner has entered into

a 2nd marriage. That is the defence even as is evident

from the affidavit-in-reply filed by the Chief Officer of

the Nagarpalika. Rule 91 of the Rules would indicate

that the period for which family pension is payable,

shall be in case of a widow or a widower until the

death or remarriage, whichever is earlier. The affidavit

further indicates that in view of the order of the trial

Court, the Rules squarely applied and, therefore,

family pension was rightly discontinued. The

submission of the learned counsel for the respondent -

Nagarpalika cannot be accepted in view of the fact

that the deposition of Jahuben, the first wife of

Savjibhai Pathubhai Rajgor, which the learned counsel

for the respondent - Nagarpalika wants the Court to

rely upon was discussed by the Appellate Court and

the Appellate Court observed that it was an admitted

fact by the deponent (Savjibhai Pathubhai Rajgor) that

he had firstly entered into a marriage with Jahuben

and, therefore, it is the duty on the part of the

deponent to prove the fact that, he has taken legal

divorce with Jahuben when he married the petitioner

C/LPA/1347/2022 ORDER DATED: 18/10/2022

and even under the Evidence Act such burden lies

upon the opponent. Observations of the Appellate

Court and the operative portion of the order would

indicate that the Court declared the marriage of the

petitioner with Savjibhai Pathubhai Rajgor as void.

11. In view of this position, it is no longer open for

the respondent - Nagarpalika to rely on the evidence,

observations and the findings of the trial Court to deny

the benefits of family pension to the petitioner.

12. The affidavit dated 12.6.2012 produced before

this Court for perusal of the petitioner also becomes

insignificant in view of the order of the Appellate Court

dated 20.1.2020."

9. We are in complete agreement with the findings recorded by learned Single Judge. We do not find any reason to interfere with the said findings. The appeal fails and is accordingly dismissed. Connected application also stands dismissed.

(A. J. DESAI, J)

(MAUNA M. BHATT,J)

SAVARIYA