IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.411 of 2005 TRIBANI HAZARI Versus THE UNION OF INDIA & ORS ----------- For the Petitioner :- Mr. Vivekanand Pd. Singh For the State :- Mr. G.A. 7 For the Union of India :- Mr. Prashant Kashyap (Central Govt. Counsel) 2 30.1.2009 Heard the parties. For the reasons mentioned in this application (I.A. No. 7029 0f 2007), the name of the writ petitioner is directed to be deleted as he has died on 21.1.2005 after filing of this writ application on 7.1.2005 and in his place, the name of his wife Sujan Devi is to be substituted. In this writ application, the petitioner has made a prayer to the following effect:- “A. Seeking indulgence of the Hon’ble Court by issuing order/direction/appropriate with in the nature of mandamus commanding the respondents to grant Freedom Fighters Pension to the petitioner.] I. The arrear of pension. II. The due amount of pension on account of revision of pension. B. Issuance of order/appropriate writ directing the respondents to pay cost of the litigation through out. C. For granting relief or other reliefs which deem fit and proper to the petitioner.” 2 Counsel for the petitioner, on being drawn attention of this Court towards the claim for payment of pension under the Freedom Fighter Pension Scheme of the petitioner which had already been rejected way back on 30.6.1986, submits that the delay of nearly 19 years in filing of the writ application would still be not fatal because the authorities of the Government of Bihar were still considering his case and were making necessary enquiry as would be evidenced from different annexures annexed to the writ application. In fact, the counsel for the petitioner went on to submit that as the officials of the Government of Bihar were still considering his case, the petitioner did not consider it necessary to assail the aforementioned order of the Government of India dated 30.7.1986 but, when it was ultimately found that no action was being taken on the said enquiry of the of the official of the State of Bihar, the petitioner had been left with no alternative but to move before this Court by filing this writ application and that is how, he has also made an admission in paragraph no.9 of the writ application while considering the fact of the order of the Government of India dated 30.6.1986 that the said order was illegal and should be set aside. Counsel for the petitioner has further relied on the judgment of the Apex Court in the case of Ram 3 Chand & Ors. Vs. Union of India & Ors. reported in AIR 1994 (1) SCC 44 as also a Division Bench judgment of this Court in the case of Union of India Vs. Jaganath Prasad Keshari reported in 2008 (4) PLJR 41. In support of his contention, he has submitted that the delay in the present case would no be fatal. Counsel for the Union of India, with reference to the counter affidavit, has stated that the matter became so old that the Government of India was now not in a position to say anything more save and except that the case of the petitioner for grant of pension under the Freedom Fighter Pension Scheme was rejected on 30.7.1986 as the relevant file of the petitioner would not be traced after 21 years at the time of filing of the counter affidavit. A question therefore, would arise as to whether this Court can issue mandamus for directing payment of pension to the petitioner in presence of an order dated 30.7.1986 rejecting the prayer of the petitioner for grant of such pension. The obvious answer will have to be in negative and in fact, the petitioner in paragraph no. 9, in a very cryptic manner, had conveniently made an attack to the said order by saying that such order was illegal, arbitrary and was fit to be set aside. Nonetheless, the main relief now pressed by the counsel for the petitioner 4 is to quash the order dated 30.7.1986. If that be so, can this writ application after almost 21 years of the cause of action, can be maintained by the petitioner? Again, an answer will be firmly in negative. The reliance placed by the counsel for the petitioner on the judgment of the Apex Court in the case of Ram Chand is also wholly misplaced. That was the case of Land Acquisition Act in which no order had been passed rather the land acquisition proceeding was being questioned on the ground of procedural infirmity and statutory infirmity. It was in that context, that the Apex Court had held that statutory inaction on the part of the authorities would not give them a right to question the delay in filing the writ application. This Court would fail to understand as to how the judgment of Ram Chand (supra) could be made applicable to the facts of this case. Here is a case wherein the authorities under the scheme required to consider had already passed an order in the year 1986 and therefore the petitioner cannot even allege that there was inaction on the part of the Government of India. At this stage, this Court must notice the so-called explanation of delay in filing the writ application which has been only explained by the counsel for the petitioner with reference to certain annexures which the petitioner 5 had filed with the writ application and to the authorities of the State Government for making an another enquiry and since that enquiry had remained pending, it must be presumed that the delay in assailing the order of the Government of India had remain explained. As a matter of fact, the Government of Bihar, being a nodal agency or a recommending agency, had no role to deliver once the application of the petitioner was rejected on merits by the Government of India unless the Government of India itself wanted to review the order. The Government of Bihar, in fact, having no authority to re-open the matter, the exercise undertaken at the behest of the petitioner, would not give him a ground for explaining the delay in filing of the writ application. That being so, the explanation of delay of more than twenty one years in filing of this writ petition cannot be accepted by this Court. The next decision cited by the counsel for the petitioner in the case of Jaganath Prasad Keshari (supra) also has to be understood in the context of the facts of that case. There, the writ petitioner of that case in fact was already allowed pension from the date of making the application. which was later on sought to be reviewed by the Government of India and in that context, when the Government of India took a plea that there was a delay 6 of about 4 ½ years in claiming such benefit by the writ petitioner, this Court had rejected the said submission on the ground that if the scheme propounded by the Government of India was giving certain benefit to the Freedom Fighter, that could not have been questioned by the Government of India itself if such delay was pertaining to continuing such cause of action. The marked distinction in the aforesaid Division Bench judgment, Jagganath case (supra) in between a continuing cause of action vis-à-vis action which has already been concluded. In the case of the petitioner, once his claim for pension had been rejected, the running of clock had been stopped and there was no continuing cause of action of him. That being so, this Court would find that the delay of almost 21 years in filing of this writ application remain wholly explained and accordingly, this application is dismissed on account of delay and laches. Rsh (Mihir Kumar Jha, J.)