1 wp4497.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 4497 OF 2007 1 Purushottam Vyankatrao Dehedkar age 87 years, occ. Nil, r/o Dahedkarwadi, District Jalna, (deceased) through L.Rs. 1(A) Smt. Sushilabai Purushottam Dehedkar, age 80 years, occ. Household, r/o Dahedkarwadi, Old Jalna, Dist. Jalna, 1(B) Vinayak s/o Purushottam Dehedkar, age 56 years, occ. service, r/o as above, 1(C) Arun s/o Purushottam Dehedkar, age 52 years, occ. Business, r/o as above, 1(D) Nandkishor s/o Purushottam Dehedkar, age 50 years, occ. Private Service, r/o as above, 1(E) Ravikumar s/o Purushottam Dehedkar, age 47 years, occ. service, r/o as above, 1(F) Chandrakant s/o Purushottam Dehedkar, age 45 years, occ. service, r/o as above. ...Petitioners 2 wp4497.07 VERSUS 1 The State of Maharashtra, through its Secretary, General Administration Department, Mantralaya, Mumbai 400 032, 2 High Power Committee of Freedom Fighter, through its President Government of Maharashtra, Sachivalaya, Administrative Building, Bombay 32, 3 The Collector, Jalna. ...Respondents ..... Shri S.P.Deshmukh, advocate for the petitioners Shri V.D.Godbharle, A.G.P. for respondent nos. 1 and 3 Shri Bhushan B. Kulkarni, advocate for respondent no.2 ..... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE JUDGMENT : 02.12.2010 DATE OF PRONOUNCING THE JUDGMENT : 08.12.2010 J U D G M E N T : (Per Shrihari P. Davare, J.) 1 Rule. Rule made returnable forthwith. With the consent of 3 wp4497.07 the learned counsel for the parties, the petition is taken up for final hearing at the admission stage itself. 2 The petitioner, namely, Purushottam Vyankatrao Dehedkar, who was of 87 years, filed the present petition under Article 226 of the Constitution of India and prayed as under :- “ (A) This petition be kindly allowed; (B) Record and proceedings in respect of the petitioner’s claim for freedom fighter’s benefits with the respondents be kindly called; (C) By issue of writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari, impugned orders dated 10.11.2006 and 4.7.1995 issued by respondents be quashed and set aside; (D) By issue of writ of mandamus or any other writ, order or direction in the nature of mandamus, the respondents be kindly directed to grant to the petitioner freedom fighter’s pension with effect from 1.1.1995 along with all incidental, ancillary and consequential benefits; (E) By issue of writ of mandamus or any other writ, order or direction in the nature of mandamus, the respondents be kindly directed to grant to the petitioner freedom fighter’s pension with effect from 1.1.1995 along with all incidental, ancillary and consequential benefits; “ 4 wp4497.07 3 During the pendency of the present petition, the petitioner expired and his heirs and legal representatives as petitioner nos. 1(A) to 1(F) have been brought on record, as per order of this Court passed on 4.8.2008 in Civil Application No. 8208 of 2008, who pursued the present petition. 4 Respondent no. 1 is the State of Maharashtra represented through its Secretary, General Administration Department, Mumbai; whereas respondent no. 2 is High Power Committee of Freedom Fighters represented through its President, Government of Maharashtra, Mumbai and respondent no. 3 is the Collector, Jalna. 5 The petitioner claims to have participated in freedom struggle and took part in Vande Mataram movement and also claims to have engaged himself in multifarious activities of freedom struggle. It is also claimed that the name of the deceased petitioner was struck off from the school record and he was dubbed as Congress gunda by Razakars and he was also given life threats and was driven out of his village namely Dahedkarwadi. 6 It is also claimed that deceased petitioner was a member of Satyagraha in “Hyderabad Mukti Sangram” and he was 5 wp4497.07 Swayansevak. It is further claimed that deceased petitioner worked with renowned freedom fighters and also worked under the leadership of Late Padmavibhushan Govindbhai Shroff and Senior Freedom Fighter namely Shri Bhausaheb Vaishampayan. It is also stated that deceased petitioner had to maintain mother of Late renowned freedom fighter Shri Bhausaheb Vaishampayan by taking risk of his life. 7 Moreover, it is further stated that deceased petitioner became old and his economic condition was deteriorating and he had become dependent on others, and therefore, he applied for freedom fighter’s benefits in the prescribed format and produced the affidavits of freedom fighters and relevant papers. He also wrote a letter to respondent no.3 on 13.11.1996 pointing out his involvement in the freedom struggle as an underground freedom fighter and appended required affidavits of renowned freedom fighters and the relevant certificates from the School along with the said Application. 8 Moreover, deceased petitioner also wrote letter to respondent no.2 on 15.2.2003, since there was no progress in respect of his application for benefits of freedom fighter. Moreover, deceased petitioner sent communication dated 19.7.2003 to the 6 wp4497.07 Chairman of respondent no.2, but still he did not receive any response from the said authorities. So also, considering the pitiable condition of deceased petitioner, the Member of Legislative Assembly had written a letter to the concerned Minister on 7.9.2003 and requested for consideration of deceased petitioner’s claim. However, still there was no response from the concerned authorities, and therefore, deceased petitioner filed Writ Petition No. 3236 of 2004 before this court. However, deceased petitioner withdrew the said petition and by order dated 17.4.2006, the deceased petitioner was permitted to apply afresh after submission of all the documents as required to be submitted by virtue of Government Resolution dated 4.7.1995 within the period of three months from 17.4.2006 and the respondents were directed to examine the case of deceased petitioner afresh in the light of the documents submitted by deceased petitioner by order dated 17.4.2006. 9 Accordingly, it is the contention of the deceased petitioner that as per the said liberty, deceased petitioner submitted an application with almost all documents. However, respondent no.1 issued communication/order dated 10.11.2006 and thereby rejected the claim of the deceased petitioner for grant of freedom fighter’s pension to him for want of compliance of the Government Resolution 7 wp4497.07 dated 4.7.1995. Being aggrieved and dissatisfied by the said order, deceased petitioner filed the present petition and impugned the said order/communication dated 10.11.2006. 10 Learned counsel for the petitioners submitted that deceased petitioner had made substantial compliance of the requirements as per the Government Resolution dated 4.7.1995 and produced almost all the requisite documents along with his application, as well as produced the recommendation given by the Member of Legislative Assembly regarding his participation in the freedom movement. However, it is the grievance of the petitioner/s that in spite of the said substantial compliance made by deceased petitioner, the respondents authorities have passed the cyclostyled orders mechanically, without application of any mind, and thereby rejected the deceased petitioner’s claim. It is also argued by the learned counsel for the petitioners that claim of deceased petitioner was negatived by the respondents authorities for non-fulfillment of some conditions by adopting hyper technical approach. It is further submitted that the concerned Government Resolution dated 4.7.1995 prescribes general guidelines and the object of the said scheme is to extend the benefits to freedom fighters, and therefore, strict compliance of the norms of said Government Resolution dated 8 wp4497.07 4.7.1995 is not expected, but the substantial compliance thereof is sufficient to subserve the ends of justice. 11 To substantiate the proposition put forth by the learned counsel for the petitioners, he relied upon the case of Gurdial Singh vs Union of India and others, reported at AIR 2001 SC 3883, wherein it is held that :- “ 8. The standard of proof requires in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the scheme. It should not be forgotten that the persons intended to be covered by scheme have suffered for the country about half a century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the scheme. The case of the claimants under this scheme is required to be determined on the basis of the probabilities and not on the touch-stone of the test of ‘beyond reasonable doubt’. Once on the basis of the evidence it is 9 wp4497.07 probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence. 9 We have noticed with disgust that the respondent Authorities have adopted a hyper-technical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been passed with a biased and close mind completely ignoring the verdict of this Court in Mukund Lal Bhandari’s case. We further feel that after granting the pension of the appellant, the respondents were not justified to reject his claim on the basis of material which already existed, justifying the grant of pension in his favour. The appellant has unnecessarily, been dragged to litigation for no fault of his. “ 12 Learned counsel for the petitioners also placed reliance upon the observations made by the Apex Court in the case of Ramchandra D. Erande vs Union of India and another, reported at AIR 1997 BOMBAY 129, which are as follows :- 10 wp4497.07 “ 6. In our opinion, the petitioner has made out a case for being granted the pension under the scheme. It is obvious from the material produced by the petitioner that he satisfies all the criteria laid down under the scheme. He has undergone imprisonment for more than six months. In fact, for a period of 9 months and 21 days the petitioner was in jail. This he has done while participating in the freedom movement. The petitioner is today more than 70 years of age. Cases of freedom fighters require sympathetic consideration. They risked their lives and considered liberty for the country more important than their personal liberty. But for their sacrifices this country would not have attained freedom. This fact need not be repeatedly emphasised. It is in appreciation of such sacrifices that the State Government as well as Central Government have thought it fit to frame such pension scheme. The very object of such schemes would be defeated if hyper- technical views are taken. Time and again this Court has come across such matters and, therefore, we think it necessary to deprecate such attitude being adopted by the authorities concerned. In fact all possible efforts must be made to trace out such persons by apt publicity to make such persons aware of such schemes. They should be convinced that this country has not forgotten them and their sacrifices have not gone in vain. They should be further convinced, which can be done only if the authorities realise the spirit underlying such schemes, that the benefits under the scheme are in appreciation of their sacrifices and not alms doled out. May be the lack of appreciation of the spirit underlying the schemes, as is evident from the attitude of the 11 wp4497.07 authorities, has scared away these freedom fighters. “ 13 Accordingly, learned counsel for the petitioners urged that the impugned order dated 10.11.2006 issued by respondent no.1 is based on hyper technical approach, and hence, same be quashed and set aside and the respondents be directed to grant freedom fighter’s pension to the petitioners, as prayed for. 14 The respondents opposed the present petition vehemently and Dnyanadev Laxman Sul, Under Secretary, General Administration Department, Freedom Fighter Cell, Mantralaya, Mumbai filed the affidavit in reply and denied the averments and contentions made by the petitioners therein unless admitted specifically. It is stated that deceased petitioner applied for freedom fighter’s pension through the District Collector, Jalna on 29.11.1996 and the Zilla Gaurav Samiti had recommended the case of deceased petitioner in the meeting dated 14.5.1999. Accordingly, the State Government scrutinized the application of deceased petitioner in the light of the provisions of the Government Resolution dated 4.7.1995. However during the scrutiny, it was found that deceased petitioner had not produced necessary documentary evidence in support of his claim, and hence, his claim was rejected, and accordingly, deceased petitioner was informed by letter dated 11.9.2003. It is also stated 12 wp4497.07 that though Zilla Gaurav Samiti had recommended the case of deceased petitioner, the said recommendation is not binding on the Government, as per the ratio laid down by this court in the case of Tukaram Ramji Koli vs State of Maharashtra, since if the recommendation of Zilla Gaurav Samiti is made after 4.7.1995, such cases be scrutinized as per criteria laid down in the Government Resolution dated 4.7.1995, which are as follows :- “ (i) The documentary evidence stating as to what type of problems and hardships, the applicant had undergone due to participation in the Freedom Movement :- (a) Whether he had to remain away from his home & family. (b) Whether he had to give up education or he was expelled from any education institution. (c) Whether he was beaten up by the police in such manner, that he became permanently disabled. (ii) The certificate of two freedom fighters of their respective areas who had either undergone at least 2 years imprisonment or those who had been declared absconded or who had been absconded for at least 2 years for participation in Freedom Movement due to issuance of warrant. 13 wp4497.07 (iii) Certified copy of the Government record, which proves that he was an underground freedom fighter. (iv) The original newspaper of relevant time with the news describing that the applicant was underground for participation in the freedom struggle. (v) Recommendation of Zilla Gaurav Samiti. “ 15 It is further stated that the petitioner had again applied to High Power Committee at State level for consideration of his claim without production of any documentary evidence as per the Government Resolution dated 4.7.1995. Hence, his application was rejected and deceased petitioner was informed accordingly by letter dated 16.2.2006. Thereafter, deceased petitioner approached this court by filing Writ Petition No. 3236 of 2004 and this court issued above referred directions on 17.4.2006 and pursuant to the said order dated 17.4.2006, deceased petitioner produced the documents to the Government and the case of deceased petitioner was scrutinized on the basis of said documents. However during scrutiny, it was found that Zilla Gaurav Samiti of Jalna District has not recommended the case of deceased petitioner, as he has not fulfilled the criteria laid down in the Government Resolution dated 4.7.1995. Hence, the Government took the decision of rejection, and 14 wp4497.07 accordingly, informed deceased petitioner by letter dated 10.11.2006. 16 Respondents further stated that deceased petitioner has submitted affidavits of two freedom fighters, but jail certificates showing two years suffering were not annexed with said affidavit filed by Narayan Jadhav nor the record shows that Narayan Jadhav was declared absconding for two years during freedom movement. Accordingly, deceased petitioner failed to produce documentary evidence as prescribed in the Government Resolution dated 4.7.1995. 17 Learned counsel for the respondents also pointed out that two members of Zilla Gaurav Samiti were favourable with deceased petitioner, but the Member Secretary dissented to recommend the name of deceased petitioner. It is also submitted by learned counsel for the respondents that the School certificate dated 4.10.1996 produced by deceased petitioner discloses that though his name was struck off from the record of school from 19.1.1939, but again his name was registered from 7.9.1939, and therefore, it does not amount to compliance of the requirement of the Government Resolution dated 4.7.1995. 15 wp4497.07 18 It is further canvassed by leaned counsel for the respondents that the Government Resolution dated 4.7.1995 contemplates that the name of the underground freedom fighter is required to be published along with his information in the then news paper i.e. in the news paper published at the time of freedom movement, but name of deceased petitioner was published in the news paper published in the year 1996, and therefore, also same does not amount to compliance of the Government Resolution dated 4.7.1995. 19 To substantiate the contentions of the respondents, learned counsel relied upon the case of Mukund Lal Bhandari and others vs Union of India and others, reported at AIR 1993 SC 2127, wherein it is observed that the pension can only be sanctioned after submission of requisite documentary evidence by the claimant. Hence, learned counsel for the respondents canvassed that since the deceased petitioner failed to produce requisite documents, as per Government Resolution dated 4.7.1995, the petitioners are not entitled for freedom fighter’s pension. 20 Learned counsel for the respondents also placed reliance 16 wp4497.07 on the case of the State of Maharashtra and others vs Raghunath Gajanan Waingankar, reported at 2004 AIR SCW 4701, wherein it is held by Hon’ble Supreme Court that :- “ The High Court exercising writ jurisdiction does not sit in judgment over the decision of the State Government like an appellate authority. Ordinarily, the High Court exercising writ jurisdiction cannot enter into re- appreciation of evidence and reverse the findings arrived at by the State Government unless they be perverse or be such as no reasonable man acting reasonably could have arrived at. If the High Court found that the decision arrived at by the State Government was flawed in any way then the High Court should have, after laying down the necessary principles or guidelines or issuing directions, directed the State Government to reconsider the case of the respondent. In no case, the High Court could have in exercise of its writ jurisdiction relaxed the need for full satisfaction of the necessary requirements on the fulfilment of which alone the respondent’s entitlement to the release of freedom fighters’ pension depended. “ 21 Accordingly, learned counsel for the respondents submitted that the case of the petitioners does not come under the purview of the Government Resolution dated 4.7.1995, and therefore, the case of deceased petitioner was rightly rejected by respondent no.2 by reasoned order dated 10.11.2006, which cannot 17 wp4497.07 be faulted with, and hence, no interference therein is called for, and consequently, present petition deserves to be dismissed. 22 We have perused the contents of the present petition, annexures enclosed herewith, concerned file maintained by the respondents, impugned order dated 10.11.2006, the Government Resolution dated 4.7.1995 and also considered the observations made in the Rulings cited by both the learned counsel for respective parties carefully, as well as considered the submissions advanced by the parties anxiously, and at the out set, it is apparent that deceased petitioner herein had claimed the pension of freedom fighter under the category of underground freedom fighter as per the Government Resolution dated 4.7.1995 and the requirements thereof have been specified in the said Government Resolution dated 4.7.1995. However, on perusal of deceased petitioner’s application and annexures submitted therewith from the concerned file maintained by the respondents, it is amply clear that deceased petitioner did not produce the necessary requisite documents along with the said application, and therefore, the observations made by respondent no. 1 in that respect cannot be faulted with. Moreover, learned counsel for the respondents rightly pointed that the school certificate dated 4.10.1996 produced by deceased petitioner along with his application 18 wp4497.07 reflects that the name of deceased petitioner was struck off from the school record from 19.1.1939, but again his name was registered from 7.9.1939, and hence, same cannot be construed as compliance of the requirement of said Government Resolution dated 4.7.1995. 23 Moreover, it is also one of the requirements of the said Government Resolution dated 4.7.1995 that the name of underground freedom fighter along with his information be published in the then news paper i.e. news paper published at the time of relevant freedom movement, but the news paper produced by deceased petitioner is of the recent year i.e. 1996, in which name of deceased petitioner appears to have been published, and therefore, same also cannot be construed as compliance of the requirements of the Government Resolution dated 4.7.1995. 24 Besides that, deceased petitioner himself admitted in para 20 of the present petition that he has produced affidavits of two freedom fighters, who were imprisoned, along with his application, but as far as the extent of their sentences and declaration of them being absconding could not be produced by him. Thus, since it is one of the requirements of the said Government Resolution dated 4.7.1995 and same could not be complied with by deceased 19 wp4497.07 petitioner, as stated and admitted by him in para 20 as afore said, it also amounts to non-compliance of the requirement of the Government Resolution dated 4.7.1995. 25 As regards the argument advanced by learned counsel for the petitioners that the deceased petitioner has produced almost all necessary documents and made substantial compliance of the requirements of Government Resolution dated 4.7.1995 and hyper technical approach cannot be adopted by expecting strict compliance of the norms of Government Resolution dated 4.7.1995, it is material to note that Hon’ble Supreme Court has observed in the case of State of Maharashtra vs Raghunath Waingankar, reported at 2004 AIR SCW 4701 (supra) that, “In no case, High Court could have in exercise of its writ jurisdiction relaxed the need of full satisfaction of the necessary requirements on the fulfillment of which alone, the respondent’s entitlement to the release of the freedom fighters’ pension depended.”, and hence, in no case production of documents as contemplated under Government Resolution dated 4.7.1995 can be relaxed, and accordingly, there is no substance in argument canvassed by learned counsel for petitioner of alleged substantial compliance, and hence, same is required to be discarded. 20 wp4497.07 26 Accordingly, applying the parameters of the Government Resolution dated 4.7.1995 to the deceased petitioner’s application and annexures therewith, it is amply clear that the deceased petitioner failed to comply with the requisitions contained in the said Government Resolution dated 4.7.1995, and hence, there is no flaw in the impugned order while rejecting the claim of deceased petitioner. Thus, after having the comprehensive view of the matter, we are of the considered opinion that the impugned order dated 10.11.2006 cannot be faulted with, and we do not find any infirmity or perversity therein, and therefore, no interference therein is called for under the extraordinary jurisdiction of this court, and hence, present petition deserves to be rejected. 27 In the result, present petition, which is sans merits, stands dismissed with no order as to costs. Rule stands discharged accordingly. (SHRIHARI P. DAVARE, J.) (NARESH H.PATIL, J.) dbm/wp4497.07