Bombay High Court
Smt. Dwarkabai W/O Natthuji Umale Thr. ... vs The State Of Maharashtra Thr. Its ... on 11 April, 2016
Author: Vasanti A. Naik
Bench: Vasanti A.Naik, V.M. Deshpande
WP 242/16 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 242/2016
Smt.Dwarkabai Wd/o Natthuji Umale,
Aged about 80 years, Occupation : Household,
through her Power of Attorney
Shri. Arun S/o Natthuji Umale,
Aged about 52 years, Occupation: Labour,
R/o.Chaitanya Wadi, Lahan Umari,
Akola, Tq. And District Akola. PETITIONER
.....VERSUS.....
1. The State of Maharashtra,
through its Secretary,
Department of General Administration,
Mantralaya, Mumbai-32.
2. The District Collector, Akola,
District Akola. RESPONDENTS
Shri A.D. Girdekar, counsel for the petitioner.
Shri A.M. Joshi, Assistant Government Pleader for the respondents.
CORAM :SMT.VASANTI A.NAIK AND
V.M. DESHPANDE, JJ.
DATE : 11 TH APRIL, 2016.
ORAL JUDGMENT (PER : SMT.VASANTI A. NAIK, J.)
RULE. Rule made returnable forthwith. The petition is heard finally at the stage of admission with the consent of the learned counsel for the parties.
2. By this petition, the petitioner seeks a declaration that the deceased husband of the petitioner was a Freedom Fighter and the petitioner being his widow, is entitled for pension under the Freedom Fighters' Pension Scheme. The petitioner has sought a direction to the ::: Uploaded on - 13/04/2016 ::: Downloaded on - 29/07/2016 21:51:30 ::: WP 242/16 2 Judgment respondents to pay the pension to the petitioner under the Freedom Fighters' Pension Scheme along with the consequential benefits.
3. The petitioner is the widow of late Natthuji Umale, who, according to the petitioner, had actively participated in the Freedom Struggle. According to the petitioner, the husband of the petitioner was arrested while distributing pamphlets within the locality of Akola and was punished for the offence punishable under Section 18 of the Press Emergency Power Act. According to the petitioner, the deceased husband of the petitioner had undergone Simple Imprisonment for a period of twenty one days from 26.08.1942 to 15.09.1942 and was also required to pay a fine of Rupees Five. After the death of the husband of the petitioner, the petitioner moved an application for grant of family pension under the Freedom Fighters' Pension Scheme. It is the case of the petitioner that the said application was pending with the State Government and the same was rejected by an order dated 03.10.2015.
The petitioner has indirectly challenged the order dated 03.10.2015 and has sought a declaration that the petitioner is entitled to family pension under the Freedom Fighters' Pension Scheme.
4. Shri Girdekar, the learned counsel for the petitioner, submitted that the petitioner is entitled to family pension as per the Freedom Fighters' Pension Scheme in view of the Government Resolution ::: Uploaded on - 13/04/2016 ::: Downloaded on - 29/07/2016 21:51:30 ::: WP 242/16 3 Judgment dated 04.07.1995. It is stated that the claim of the petitioner was wrongfully rejected by the order dated 03.10.2015 as it is not necessary for a Freedom Fighter to remain in jail for a period of more than one month. It is submitted that the deceased husband of the petitioner had undergone simple imprisonment for a period of twenty one days for the offence punishable under Section 18 of the Press Emergency Power Act.
It is stated that the imprisonment of a Freedom Fighter would entitle the Freedom Fighter or his widow to the pension under the Freedom Fighters' Pension Scheme. It is submitted that it was necessary for the respondents to have allowed the application made by the petitioner as the husband of the petitioner was imprisoned for a period of twenty one days and there is nothing in the Government Resolution dated 04.07.1995 that requires the imprisonment for a period of one month.
5. Shri Joshi, the learned Assistant Government Pleader appearing on behalf of the respondents, submitted that the application of the petitioner was verified by the Desk Officer of the respondent no.1 and it was found that the petitioner had not applied as per the Government Resolution dated 04.07.1995. It is stated that the petitioner had not annexed the original certificate of the Jail Superintendent about the imprisonment. It is, however, fairly admitted that there is nothing in the Government Resolution dated 04.07.1995 that requires the Freedom Fighter to undergo minimum sentence of one month before seeking the ::: Uploaded on - 13/04/2016 ::: Downloaded on - 29/07/2016 21:51:30 ::: WP 242/16 4 Judgment pension under the Freedom Fighters' Pension Scheme. It is stated that an appropriate order may be passed in the circumstances of the case.
6. On hearing the learned counsel for the parties and on a perusal of the Government Resolution dated 04.07.1995, it appears that it was necessary for the respondents to grant the pension under the Freedom Fighters' Pension Scheme to the petitioner, who is a widow of the Freedom Fighter. Only while seeking pension for underground Freedom Fighters, minimum imprisonment for a period of two years is necessary. No period of imprisonment is prescribed for the entitlement of Freedom Fighters to receive the pension under the Freedom Fighters' Pension Scheme. It is not in dispute that the husband of the petitioner had undergone simple imprisonment for twenty one days for the offence punishable under Section 18 of the Press Emergency Power Act that was related to the Freedom Movement. If that be so, the petitioner would be entitled to receive the pension as per the Government Resolution dated 04.07.1995 being the widow of a Freedom Fighter, who had suffered imprisonment. In the circumstances of the case, it would be necessary to direct the State Government to pay the pension to the petitioner in terms of the Freedom Fighters' Pension Scheme.
7. Though the petitioner would be entitled to the pension under the Freedom Fighters' Pension Scheme, the petitioner would not be ::: Uploaded on - 13/04/2016 ::: Downloaded on - 29/07/2016 21:51:30 ::: WP 242/16 5 Judgment entitled to the arrears of pension from the date of the application. If the petitioner had made an application to the respondents for grant of pension in the year 1996 and if the application of the petitioner was not decided within a reasonable time, it was necessary for the petitioner to file appropriate proceedings with a prayer to grant pension to the petitioner and/or for a direction to decide the application of the petitioner. However, the petitioner did not do anything in the matter for long. It is the case of the petitioner that the petitioner made representations to the State Government but, they were not answered. It is well settled that if an application is made to the State claiming a relief and if the application is not decided within a reasonable time, it would be necessary for the party to approach the Court for either seeking the relief claimed in the application or for a decision on the application. The delay as long as the one occasioned in this case would result in the dismissal of a petition on the ground of laches if the cause of action is not continuous.
It is, no doubt, true that the cause of action in case of pensionary benefits continues from month to month but, it is well settled that in case of delay in filing the writ petition beyond the period of three years, the monetary relief could be restricted even in case of pensionary benefits only for a period of three years preceding the date of filing of the writ petition. In cases where the cause of action is not continuous, a writ petition seeking a particular relief would be barred by laches as mere making of representations to an authority would not stop the period of limitation. It ::: Uploaded on - 13/04/2016 ::: Downloaded on - 29/07/2016 21:51:30 ::: WP 242/16 6 Judgment is held by the Hon'ble Supreme Court from time to time that monetary relief could be granted for a period of three years preceding the date of filing of the writ petition even if the cause of action is continuous.
Monetary benefits payable towards pension are also governed by the same rule. It would be necessary to refer to the judgments reported in (1995) 5 SCC 628 (M.R. Gupta Versus Union of India & Others), (1997) 11 SCC 13 (Jai Dev Gupta Versus State of H.P. & Another), (2007) 9 SCC 274 (Shiv Dass Versus Union of India & Others), (2008) 8 SCC 648 (Union of India & Others Versus Tarsem Singh), in this regard.
Hence, though the petitioner would be entitled to family pension, the petitioner would be entitled to the arrears of the family pension only for a period of three years preceding the date of filing of the writ petition, i.e. from 15.12.2012.
8. Hence, for the reasons aforesaid, the writ petition is partly allowed. It is hereby declared that the petitioner is entitled to family pension under the Freedom Fighters' Pension Scheme. The respondents are directed to pay regular family pension to the petitioner from May-
2016. The arrears of pensionary benefits with effect from 15.12.2012 should be paid to the petitioner within aperiod of six weeks. If the aforesaid direction is not complied with, the respondents would be liable to pay the aforesaid amount to the petitioner with interest at the rate of 18% per annum.
::: Uploaded on - 13/04/2016 ::: Downloaded on - 29/07/2016 21:51:30 :::WP 242/16 7 Judgment Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
APTE
::: Uploaded on - 13/04/2016 ::: Downloaded on - 29/07/2016 21:51:30 :::