The State Of Karnataka vs Gundurao Desai
2022 Latest Caselaw 3511 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 2ND DAY OF MARCH 2022

                          PRESENT

          THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

     THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

               W.A. No.1292 OF 2021 (GM-RES)
                             IN
               W.P. No.7498 OF 2021 (GM-RES)
BETWEEN:

1.    THE STATE OF KARNATAKA
      DEPARTMENT OF HOME
      DR. AMBEDKAR VEEDHI
      BENGALURU-560001
      REPRESENTED BY ITS
      ADDITIONAL CHIEF SECRETARY.

2.    THE DEPUTY COMMISSIONER
      BELLARY DISTRICT
      BELLARY - 583101.

3.    THE ASSISTANT COMMISSIONER
      HOSPETE, BELLARY DISTRICT
      BELLARY - 583201.

4.    THE TAHSILDAR
      HOSAPETE TALUK
      TALUK OFFICE BUILDING
      HOSPETE, BELLARY DISTRICT
      BELLARY - 583201.

                                           ... APPELLANTS

(BY MR. DHYAN CHINAPPA, ADDL. A.G. A/W
  MRS. VANI H, AGA)
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AND:

GUNDURAO DESAI
AGED ABOUT 94 YEARS
S/O VENKOBORAO DEASI
R/AT NO.242, 4TH WARD
NEAR RAMA TEMPLE
DESAI ONI, VENKATAPURA
KAMALAPURA, BELALRY-583221.
                                             ... RESPONDENT

(BY MR. C.M. NAGABHUSHANA, ADV., FOR C/R1)
                          ---

      THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO ALLOW THE WRIT APPEAL AND SET
ASIDE THT ORDER DATED 07.09.2021 PASSED BY THE LEARNED
SINGLE JUDGE IN W.P. NO. 7498/2021. GRANT SUCH OTHER
RELIEFS WHICH HON'BLE COURT DEEMS FIT THE FACTS AND
CIRCUMSTANCES OF THE CASE.

     THIS W.A. COMING ON FOR PRELIMINARY HEARING, THIS
DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

                         JUDGMENT

This intra court appeal has been filed against order

dated 07.09.2021 passed by learned Single Judge, by which

writ petition preferred by respondent viz., a freedom fighter

who is aged about 94 years has been allowed and appellants

herein have been directed to sanction freedom fighter's

pension to the respondent with effect from date of his

application i.e., 19.03.1998 and settle all the arrears within a

period of six weeks, failing which the appellant have been

held personally and collectively liable to pay sum of

Rs.1,000/- for everyday's delay.

2. Facts giving rise to filing of this appeal briefly

stated are that the respondent had participated in the

freedom struggle of the country. Under the policy framed by

the Government, the respondent is required to file affidavit of

two persons who were detained with him for their

participation for the struggle for independence of the

country. The respondent submitted a claim for grant of

freedom fighter's pension 19.03.1998, which was turned

down by the appellants by an order dated 20.07.2019 on the

ground that the respondent has failed to file affidavit of two

persons who were detained by him because of their

participation in the struggle for independence. The

respondent assailed the validity of the said order in a writ

petition. The learned Single Judge, inter alia, held that where

the conditions prescribed by the statutes have become

impossible for performing, such conditions are treated either

as having been complied with or their compliance being

dispensed with. The writ petition was accordingly allowed

with the directions as aforesaid.

3. Learned Additional Advocate General submits

that the policy framed by the State Government requires the

affidavit of two persons who have been detained with him in

connection with their participation for independence. It is

also urged that since the aforesaid condition has not being

complied with, the respondent has been held to be not

eligible for pension. Alternatively, it is contended that the

order passed by the learned Single Judge, not be treated as

precedent and in the event writ appeal being dismissed, the

appellants undertake to comply with the directions contained

in the order of the learned Single Judge within a period of

four weeks from today.

4. On the other hand, learned counsel for the

respondent fairly submitted that in view of the undertaking

given by learned Additional Advocate General that the

directions contained in the order passed by learned Single

Judge shall be complied with within a period of four weeks

from today, the condition with regard to payment of cost of

Rs.1,000/- per day for the period of delay in passing the

order granting pension be modified.

5. We have considered the submissions made by

learned counsel for the parties. It is not in dispute that the

respondent is a freedom fighter. It is also not the case of the

appellants that the claim of the respondent is based either on

any forgery or fraud. In the peculiar facts of the case, we do

not find any ground to differ with the view taken by the

learned Single Judge. However, the undertaking furnished by

the Additional Advocate General that the claim of the

respondent shall be settled by the appellants within a period

of four weeks from today is placed on record.

6. In view of aforesaid statement made by learned

Additional Advocate General and in the facts of the case, the

condition imposed for payment of cost of Rs.1,000/- per day

for the delay caused in settling the claim of respondent

beyond the period of four weeks is modified. It is directed

that the appellants shall settle the claim of the respondent

and shall make payment of arrears of pension to him within a

period of four weeks from today. To the aforesaid extent, the

judgment passed by learned Single Judge is modified.

In the result, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

SS