Smt. Yadavalli Bathukamma vs The Union Of India
2022 Latest Caselaw 6699 Tel

            HON'BLE SRI JUSTICE K.LAKSHMAN

               WRIT PETITION No.13236 OF 2022

ORDER:

Heard Mr. Ganesh Bhujanga Rao Vadduri, learned counsel for

the petitioner and Mr. Kalvala Sanjeev, learned Standing Counsel for

respondent Nos.1 and 2 and learned Government Pleader for Revenue

appearing on behalf of respondent Nos.3 and 4.

2. This writ petition is filed to declare the inaction of

respondent Nos.2 to 4 in considering the grant of pension to the

petitioner from 02.02.2008 as illegal and for a consequential direction

to the respondents to release pension under freedom fighters pension

w.e.f. 02.02.2008 and 28.04.2014.

3. FACTS:

i) According to the petitioner, her husband late Edavalli

Guravaiah was a freedom fighter. He died on 14.08.2007. During his

life time, he had applied for freedom fighters pension and his claim

was not considered.

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ii) The petitioner has made an application on 02.02.2008 with

respondents with a request to pay pension to her under Swatantrata

Sainik Samman Pension (SSSP) Scheme, 1980 since she is widow of

freedom fighter. She has also submitted a representation dated

28.01.2014, the same was not considered.

iii) Vide proceedings, dated 27.02.2014, respondent No.2

informed the petitioner that she is not entitled for pension as per

revised policy and guidelines issued by the Ministry under letter

No.45/03/2014-FF(P), dated 06.08.2014. Therefore, on the said

ground, the request made by the petitioner for grant of pension under

SSSP Scheme, 1980 was rejected. Therefore, the present writ petition.

4. CONTENTIONS OF RESPONDENT Nos.1 & 2:

i) Respondent Nos.1 and 2 have filed counter contending that

the present writ petition is hit by doctrine of res judicata. The earlier

writ petition vide W.P. 10303 of 2015 filed by the petitioner seeking

pension under the aforesaid Scheme was dismissed on merits on

26.11.2018. The petitioner herein had filed the present writ petition

seeking the very same relief and, therefore, the lis involved in the

KL,J W.P. No.13236 of 2022

present writ petition is hit by doctrine of res judicata. The petitioner

has no locus to claim pension under the aforesaid Scheme.

ii) SSS Yojana is in existence since 1972. The husband of the

petitioner, who died on 14.08.2007, never applied for grant of pension

under the said SSS Yojana. After the death of her husband, the

petitioner cannot seek to substitute herself in place of her husband

who never applied for the same.

iii) As per Clause 1.5 of the revised policy guidelines of SSS

Yojana, dated 06.08.2014, the petitioner is not entitled for pension

under the Scheme.

iv) The respondents have also relied upon decisions in Issac

Sam v. Union of India1 and Deivanai v. Union of India2 rendered by

the Madras High Court and also Smt. Yashodabai Balwant Adhav v.

Union of India3 rendered by the Bombay High Court at Aurangabad

Bench.

. Order dated 19.06.2018 in W.P. No.27687 of 2012

. Judgment dated 16.06.2021 in W.A. (MD) No.1233 of2021

. Order dated 23.01.2020 in W.P.No.7121 of 2019

KL,J W.P. No.13236 of 2022

v) With the aforesaid submissions, the respondents sought to

dismiss the writ petition.

5. ANALYSIS AND FINDING OF THE COURT:

i) The above said rival submissions would reveal that though

the petitioner herein is claiming that her husband, a freedom fighter,

made an application seeking pension under the SSS Yojana, the same

was not granted, she did not file any document in support of the same.

On the other hand, it is specifically contended by the respondents that

the said Scheme is in existence since 1972, and the husband of the

petitioner never applied for grant of pension under the said Scheme.

The petitioner did not file any reply to the said counter denying the

said fact. Therefore, the contention of the petitioner that her husband

applied for grant of pension and the same was not considered by the

respondents cannot be accepted.

ii) The husband of the petitioner died on 14.08.2007. The

petitioner made an application on 02.02.2008, but she has not filed

copy of the same. However, according to the respondents, the

petitioner submitted application only on 28.01.2014 seeking grant of

KL,J W.P. No.13236 of 2022

pension under the aforesaid Scheme. They have considered the said

application and rejected the request made by her by referring to the

revised policy guidelines issued by the Ministry vide letter

No.45/03/2014-FF(P), dated 06.08.2014. The respondents have filed

copy of the aforesaid policy guidelines.

iii) As per Clause - 1.5 of the revised policy guidelines, no

pension shall be sanctioned in the name of the freedom fighter after

his/her death even if his/her matter was under examination. This also

entails that no life time arrears or dependent pension shall be

sanctioned to his/her spouse/daughter after the death of the freedom

fighter.

iv) The Madras High Court in Issac Sam1, held that son of

freedom fighter is not entitled for pension under SSSP Scheme, after

the death of his father. The Bombay High Court also took the same

view. A Division Bench of Madras High Court at Madurai Bench in

Deivanai2 held that "the appellant herein cannot seek to substitute

herself in the place of her husband and pursue the claim after the

demise of appellant husband".

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v) It is also relevant to note that in Jagadamba Devi v. Union

of India4, the Apex Court categorically held that SSSP Scheme, 1980

is a document based Scheme and the documents required for

eligibility for Samman Pension as mentioned in the Scheme has to be

produced by the applicant in support of his claim duly verified and

recommended by the concerned State Governments. Due to the

discrepancies and ambiguities relating to the documents and due to

non-production of requisite certificate, benefit of the Scheme could

not be extended. It is not possible for the Court to scrutinize the

documents as to its sufficiency or otherwise.

vi) It is also relevant to note that the petitioner had filed a writ

petition vide W.P. No.10303 of 2015 to declare the action of the

respondents in rejecting the case of the petitioner for freedom fighter

pension dated 27.02.2014 on the ground that the revised policy

guidelines issued under letter dated 27.02.2013 as illegal and for a

consequential direction to the respondents to consider the application

of the petitioner for claim of the freedom fighters pension irrespective

of the guidelines dated 06.08.2014. The said writ petition was

4. (2017) 3 SCC 688

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dismissed on merits and on consideration of the contentions of both

sides. The petitioner herein did not file any appeal challenging the

said order. She filed the present writ petition, to consider grant of

pension to her from 02.02.2008.

vii) Section - 11 of the Code of Civil Procedure, 1908, deals

with res judicata, and it says that no Court shall try any suit or issue in

which the matter directly and substantially in issue has been directly

and substantially in issue in a former suit between the same parties, or

between parties under whom they or any of them claim, litigating

under the same title, in a Court competent to try such subsequent suit

or the suit in which such issue has been subsequently raised, and has

been heard and finally decided by such Court.

viii) Explanation - IV to Section - 11 of the C.P.C., says that

any matter which might and ought to have been made ground of

defence or attack in such former suit shall be deemed to have been a

matter directly and substantially in issue in such suit.

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ix) Explanation - V says that any relief claimed in the plaint,

which is not expressly granted by the decree, shall for the purposes of

this section, be deemed to have been refused.

6. CONCLUSION:

i) As discussed above, the petitioner herein had filed W.P.

No.10303 of 2015 challenging the rejection order 27.02.2014 and for

a consequential direction to grant pension to the petitioner. The said

writ petition was dismissed on 26.11.2018 on merits, considering the

contentions of both sides. The petitioner did not prefer appeal

challenging the said order and on the other hand filed the present writ

petition with the very same relief. Therefore, according to this Court,

the present writ petition is hit by the doctrine of res judicata.

Therefore, viewed from any angle, the petitioner is not entitled for any

relief, much less the relief sought in the present writ petition. The writ

petition is devoid of merits and the same is liable to be dismissed.

ii) The present Writ Petition is accordingly dismissed.

However, in the circumstances of the case, there shall be no order as

to costs.

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As a sequel, miscellaneous petitions, if any, pending in the writ

petition shall also stand closed.

_________________ K. LAKSHMAN, J 12th December, 2022 Mgr