Ritualistic adherence to the condition of state policy regardless of some of them being impossible of performance, is not the way a welfare state is constitutionally expected to function: Karnataka High Court

IN THE HIGH COURT OF KARNATAKA BENGALURU DATED THIS THE 7TH DAY OF SEPTEMBER 2021 THE HON BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 7498 OF 2021 GUNDURAO DESAI AGED ABOUT 94 YEARS S O VENKOBORAO DESAI R AT NO.242 4TH WARD NEAR RAMA TEMPLE DESAI ONI VENKATAPURA KAMALAPURA BELLARY 583 221. … PETITIONER BY SRI.C.M.NAGABHUSHANA ADVOCATE) 1. THE STATE OF KARNATAKA DEPARTMENT OF HOME DR. AMBEDKAR VEEDHI BENGALURU 560 001. REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY. 2. DEPUTY COMMISSIONER BELLARY DISTRICT BELLARY 583 101. 3. ASSISTANT COMMISSIONER HOSAPETE BELLARY DISTRICT BELLARY 583 201. 4. THE TAHSILDAR HOSAPATE TALUK TALUK OFFICE BUILDING HOSAPETE BELLARY DISTRICT BELLARY 583 201. BY MR. SHRIDHAR HEGDE HCGP) … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R 3 TO CONSIDER THE ORIGINAL LETTER DATED 27.12.1995 VIDE ANNX P SUBMITTED BY THE PETITIONER TO CONSIDER FOR FREEDOM FIGHTER PENSION. THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY THE COURT MADE THE FOLLOWING: Petitioner claiming to be a freedom fighter is knocking at the doors of writ Court grieving against the endorsement dated 20.07.2019 a copy whereof is at Annexure P which has the following text: “ªÀiÁ£ÀågÉÃ «µÀAiÀÄ: ²æÃ zÉÃ¸Á¬Ä UÀÄAqÀÄgÁªï ªÀiÁf CzsÀåPÀëgÀÄ mË£ï ¥ÀAZÁAiÀÄw ºÁUÀÆ ¸ÁévÀAvÀæöå ºÉÆÃgÁlUÁgÀgÀÄ PÀªÀÄ¯Á¥ÀÄgÀ ºÉÆ¸À¥ÉÃmÉ vÁ®ÆèPÀÄ EªÀjUÉ ¸ÁévÀAvÀæöå ºÉÆÃgÁlUÁgÀgÀ ¦AZÀtÂAiÀÄ£ÀÄß ªÀÄAdÆgÀÄ ªÀiÁqÀÄªÀ §UÉÎ. G¯ÉèÃR: vÀªÀÄä ªÀÄ£À« ¢£ÁAPÀ:26.06.2019. ªÉÄÃ®ÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ ¢£ÁAPÀ:26.05.2019gÀ vÀªÀÄä ¥ÀvÀ æzÀ°è E£ÉÆß§â ¸ÀºÀ§A¢ §UÉÎ ªÀÄ»w MzÀV¸À®Ä ¥Àæ¸ÀÄvÀÛ ¸ÁzsÀå«®èªÉAzÀÄ w½¹gÀÄwÛÃj. ¸ÀPÁðgÀzÀ DzÉÃ±À ¸ÀASÉå:r¦JCgï 89 ¦J¦üÓ 1994 ¢£ÁAPÀ:27.12.1995gÀ£ÀéAiÀÄ ¸ÁévÀAvÀæöå ºÉÆÃgÁlUÁgÀjUÉ À£À ªÀÄAdÆgÀÄ ªÀiÁqÀ®Ä CUÀvÀå«gÀÄªÀ zÁR¯ÉUÀ¼À°è gÁdå PÉÃAzÀæ UËgÀªÀzs MAzÀÄ ªÀÄµÀð eÉÊ®Ä ²PÉë C£ÀÄ¨sÀ«¹gÀÄªÀ E§âgÀÄ ¸ÁévÀAvÀæöå AiÉÆÃzs ¥ÀqÉ¢gÀÄªÀ ªÀÄÆ® ¸ÀºÀ§A¢ü ¥ÀæªÀiÁt ¥ÀvÀæUÀ¼À£ÀÄß MzÀV¸À¨ÉÃPÁVgÀÄvÀÛzÉ. æªÀ£ÀÄß ªÀiÁvÀæ MzÀV¹gÀÄwÛÃj. DzÀgÉ ¤ÃªÀÅ M§âgÀ ¸ÀºÀ§A¢ü ¥ÀvÀ À£À ªÀÄAdÆgÀÄ ªÀiÁqÀ®Ä DzÀÝjAzÀ ¤ªÀÄUÉ gÁdå PÉÃAzÀ ¸ÀPÁðgÀzÀ ¤AiÀÄªÀÄUÀ¼À°è CªÀPÁ±À«gÀÄªÀÅ¢®èªÉAzÀÄ w½¸À®Ä £Á£ÀÄ æ UËgÀªÀzs 2. The net effect of the above Endorsement is the rejection of petitioner’s claim for Freedom Fighters Pension on the ground that he has not produced the affidavit of two persons who were detained with him because of their participation in the struggle for Independence of the country those days petitioner had made the claim for pension on 19.03.1998 itself except that the file moved from this office table to that nothing has happened though more than two decades have slipped away at least as a concession to the shortness of human life things could have been accomplished in a few years even if they were moved with snail speed that did not happen reveal the records be that as it may. After service of notice the official respondents have entered appearance through the learned AGA who vehemently opposes the writ petition contending that the requirement of producing certain documents is a matter of State Policy that regulates grant of Freedom Fighters Pension and therefore the impugned endorsement which is structured on this requirement cannot be faltered he hastens to add that an argument to the contrary has abundant abuse potential inasmuch as even unscrupulous claims may be sustained and therefore no concession in matters of the kind can be shown as to requirement of producing the necessary documents so contending he seeks dismissal of the writ petition. 4. Having heard the learned counsel for the parties and having perused the petition papers this Court is inclined to grant indulgence in the matter as under and for the following reasons: a) During the Freedom Struggle several nationals sacrificed their lives limbs & liberty and obviously their families too got affected all this happened unseen & unsung others who survived the struggle and lived after the Dawn of Freedom needed to be protected presumably they being incapable of paddling their life boats therefore both the Central Government and the State Governments have promulgated Freedom Fighters Pension Schemes fulfillment of requirement of such Schemes should not be insisted upon mindlessly and impossibly as rightly argued C.M.Nagabhushana he is more than justified in adding that ritualistic adherence to the conditions of State Policy regardless of some of them being impossible of performance is not the way a Welfare State is constitutionally expected to function the Apex Court in E.P.ROYAPPA vs. STATE OF TAMIL NADU AIR 1974 SC 555 has observed that all actions of the State be legislative or executive should be animated by reason & justness it is more so when the cause of Freedom Fighters who are in the late evening of their lives is involved the impugned Endorsement does not reflect this approach to the matter more particularly when the Freedom Fighters are a vanishing class majority of them having already closed their eyes statistically speaking. b) There is no much dispute as to petitioner being a nonagenarian he having attained age of 94 years is in the late evening of the life the approach of State and its officials has to be very gentle & humane while considering the claim of such persons the Apex Court time & again has observed that just claims of the citizens cannot be rejected on flimsy grounds if the petitioner has crossed the age of 94 years it sounds unjust & arbitrary to say the least to expect the co detenues elder to him to be alive and much less available for swearing to an affidavit expected under the conditions of State Policy petitioner has specifically stated in so many words in his letter dated 20.01.2021 a copy whereof is at Annexure Q that only one of the co detenues is alive and others are dead & gone that being the position asking him to produce the affidavits of two co detenues virtually amounts to compelling him to retrieve the dead from their grave infuse soul into their body and ask them to swear to the affidavit this is an impossibility at least with all the progress the medical science has till now achieved. c) In all civilized jurisdictions where conditions prescribed by the statutes are or become impossible of performance they are treated either as having been complied or their compliance being dispensed with subject to all just exceptions into which argued case of the petitioner does not fit “Maxwell on The Interpretation of Statutes” Twelfth Edition LexisNexis Butterworths Wadhwa at page 326 treats the subject as under: “3. IMPOSSIBILITY OF COMPLIANCE. Enactments which impose duties upon conditions are when these are not construed as conditions precedent to the exercise of a jurisdiction subject to the maxim lex non cogit ad impossibilia. They are 7 understood as dispensing with the performance of what is prescribed when performance of it is Thus where an Act provided that an appellant should send notice to the respondent of his having entered into a recognisance in default of which the appeal should not be allowed it was held that the death of the respondent was not fatal to the appeal but dispensed with the service.” d) The approach of the statutory authorities to the compassionate policies of the State such as Freedom Fighters Pension Schemes should not hijack justice in the ritualistic adherence to the black letter of law and in a gross disregard to its spirit otherwise they may be likened to surgeons who would rather have their patients dead in accordance with the principles of surgery than live contrary to that is not a happy thing to happen in an arguably sane world it is not the case of respondents that the petitioner is guilty of fraud fabrication or the like the Apex Court in KAMALA BAI SINKAR vs. STATE OF MAHARASHTRA 11 SCC 754 has observed that where the claim of an pension aspirant is probablized the same cannot be negatived in the absence of derogatory factors in fact the Apex Court directed payment of Freedom Fighters Pension with all the arrears there is no reason for not granting relief to the petitioner on the similar lines there being no contra material warranting its denial. In the above circumstances this writ petition succeeds a Writ of Certiorari issues quashing Endorsement respondents 1 2 & 3 are mandamussed to sanction Freedom Fighters Pension to the petitioner with retrospective effect from 19.03.1998 and settle all the arrears within a period of six weeks failing which they shall personally & collectively pay him Rs.1 000 for the delay of each day brooked the said amount after payment may be recovered from the erring officials in accordance with law. It is open to the answering respondents to solicit any document information from the side of petitioner as are required for accomplishing the mandated task however subject to the rider that in the guise of such solicitation no delay shall be brooked. Now no costs. Snb Sd 

Summary: A writ of certiorari issued quashing the impugned Endorsement to sanction Freedom Fighter pension to the petitioner and settle all the arrears within a period of six weeks, failing which they shall personally &amp; collectively pay him Rs. 1000/- for the delay of each day brooked as held by the Hon’ble Karnataka High court in the matter of Gundu Rao Desai V. State Of Karnataka, [WP No. 7948 of 2021]. The Facts of the case are as follows that the petitioner’s claims for the Freedom Fighter Pension have been rejected on the ground of endorsement, that he has not produced the affidavits of the two-person who were detained with him because of their participation in the struggle for independence of the country. The petitioner had made a claim for pension on 19.03.1998, except that the file moved from this office table to that for two decades and nothing has happened. The Ld. AGA appeared for the respondent vehemently opposed the writ petition contending that the requirement of producing a certain document is a matter of state policy that regulates the grant of Freedom Fighter Pension which is structured in the requirement and cannot be flattered. The Hon’ble Justice Krishna S. Dixit  before the Karnataka High Court, heard the learned counsel and having persuaded the petition paper held that Hon’ble Karnataka High Court is inclined to grant Indulgence in the matter for following reason, “During the freedom struggle , several nationals sacrificed their lives , limbs &amp; liberty and obviously their families is too get affected ; all this happened unseen and unsung; other who survived the struggle and lived after the Dawn of Freedom , need to be protected, presumably they being Central Government and State Government have promulgated Freedom Fighter Pension Schemes; the fulfilment of requirement of such scheme should not be insisted upon mindlessly and impossibly”,  and adhering to the Submission of Ld. Counsel for the Petitioner, the Hon’ble Court took the precedent of E.P Royappa V. State of Tamil Nadu [AIR 1947 SC 555], and stated that, “all the action of the state be legislative or executive should, be animated by reason and justness it is more when the cause of Freedom Fighter who are in late evening of their lives.” The Hon’ble Court subsequently found that in all civilized Jurisdiction where conditions prescribed by the statues are or became impossible of performance, they are treated either as having complied or their compliance being dispensed with, subject to all just exception, placing reliance on “Maxwell On The Interpretation Of Statues” Twelfth Edition, LexisNexis – Butterworth Wadhawa at page 326 treats the subject under “IMPOSSIBILITY OF COMPLIANCE”, which further implies the enactment that imposes duties upon conditions, when it has not been constructed as conditions precedent to the exercise of jurisdiction, subject to the maxim, lex non cogit ad impossibilia. They are understood as dispensing with the performance of what is prescribed when the performance of it is impossible.