Karnataka High Court
Laxmi Kom Venkanna Nayak vs Government Of India on 13 September, 2002
Equivalent citations: AIR2003KANT54, 2002(6)KARLJ310, AIR 2003 KARNATAKA 54, 2002 AIR - KANT. H. C. R. 2751, (2003) 3 ALLINDCAS 217 (KAR), 2003 (3) ALLINDCAS 217, (2002) ILR (KANT) (4) 5170, (2002) 6 KANT LJ 310, (2002) 7 SERVLR 494, (2003) 4 ESC 2131
Author: P. Vishwanatha Shetty
Bench: P. Vishwanatha Shetty
ORDER P. Vishwanatha Shetty, J.
1. In this petition the petitioner has sought for a direction to the respondent to grant the family pension under Swathantratha Sainik Samman Pension Scheme to her treating her as a separate entity in terms of the Government Circular dated 28th July, 1982 in No. 8/16/81-(P) issued by the respondent.
Brief facts of the case, which may be relevant for disposal of this petition, may be stated as hereunder.
2. The petitioner claims that she is the first wife and widow of late Venkanna Hamanna Nayak who was a Freedom Fighter; and the said Venkanna Hamanna Nayak was receiving pension under "Swathantratha Sainik Samman Pension Scheme" (hereinafter referred to as 'the Scheme') from the respondent till his death on 22nd October, 1992; and upon his death, the petitioner being the widow of said late Venkanna Hamanna Nayak applied for grant of family pension under the Scheme both to State and Central Governments by means of representation dated 5th January, 1994, copies of which have been produced as Annexures-A and A1 respectively to the petition; and after necessary enquiry and on the recommendation of the Deputy Commissioner of Uttara Kannada, Karwar, the petitioner was sanctioned family pension of Rs. 250/- per month by the State Government by means of its communication dated 7th August, 1993, a copy of which has been produced as Annexure-C to this petition; and another sum of Rs. 250/- was paid to the second wife of the said late Venkanna Hamanna Nayak, one Smt. Satamma. It is the further case of the petitioner that the Deputy Commissioner, Uttara Kannada, Karwar by means of his letter dated 25th June, 1995, a copy of which has been produced as Annexure-D to this petition, had recommended to the State Government to secure the family pension under the Scheme, payable to the petitioner on the death of her husband, late Venkanna Hamanna Nayak in the same way that is being paid to Smt. Satamma who was the second wife of the said late Venkanna Hamanna Nayak; and the State Government also, by means of its communication dated 25th September, 1999, a copy of which has been produced as Annexure-Dl to this petition, recommended to the respondent to sanction the family pension under the Scheme on the ground that she was the first wife of late Venkanna Hamanna Nayak. The respondent, by means of its communication dated 25th November, 1999, a copy of which has been produced as Annexure-E to this petition, has turned down the request of the petitioner for payment of family pension under the Scheme; and hence the petitioner has approached this Court by this petition.
3. Sri Dayanand S. Naik, learned Counsel appearing for the petitioner submitted that undisputed materials on record clearly establishes that the petitioner is the first wife of late Venkanna Hamanna Nayak. In terms of the scheme introduced by the respondent, the respondent cannot refuse to pay the family pension payable to the petitioner under the Scheme on the ground that her late husband has not notified to the respondent that the petitioner was his wife and he had only notified one Smt. Satamma as his wife. In support of the claim of the petitioner that the petitioner is the first wife of late Venkanna Hamanna Nayak, the learned Counsel relied upon the heirship certificate dated 8th January, 1993, a copy of which has been produced as Annexure-B to this petition issued by the Tahsildar, Ankola, Uttara Kannada District certifying that the petitioner is the first wife of late Venkanna Hamanna Nayak and Smt. Satamma is the second wife; and the said late Venkanna Hamanna Nayak had children both through the petitioner and his second wife Smt. Satamma; and also the letter, Annexure-D, dated 25th June, 1995 written by the Deputy Commissioner, Uttara Kannada District to the Government of Karnataka recommending the case of the petitioner for securing the sanction of family pension from the respondent and also the communication, Annexure-Dl, dated 25th November, 1999 written by the State Government to the respondent wherein the State Government had recommended to the respondent to sanction the Family Pension under the Scheme to the petitioner. He also drew my attention to the entry in the revenue records, a copy of which has been produced as Annexure-G made on 16th July, 1957 wherein an entry regarding the decree made by the Civil Court allotting certain properties to the petitioner towards her maintenance by late Venkanna Hamanna Nayak. It is the further submission of Sri Naik that as per the scheme sponsored by the respondent, a copy of which has been produced as Annexure-F to this petition, if there are more than one widow, each of the widow is eligible for dependent family pension at full applicable rate treating her as a separate entity; and therefore, the respondent cannot refuse to pay the pension to the petitioner as per the scheme introduced by the respondent. In support of his contention, Sri Naik relied upon the judgment of the Hon'ble Supreme Court in the case of Mukund Lal Bhandari and Ors. v. Union of India and Ors., and drew my attention to paragraph 5 of the judgment.
4. However, Sri Aravind Kumar, Additional Central Government Standing Counsel appearing for the respondent strongly repelling the contention of the Counsel for the petitioner submitted that since the late Venkanna Hamanna Nayak did not notify that the petitioner was his wife either in the application filed for grant of family pension under the scheme or in the affidavit filed before the respondent; and he had only asserted that Smt. Satamma was the only wife, the respondent was fully justified in negativing the claim of the petitioner for payment of family pension under the Scheme. He pointed out that in the absence of the deceased freedom fighter pointing out to the respondent that the petitioner was his wife, the respondent was fully justified in transferring the family pension under the Scheme to Smt. Satamma who was nominated for payment of family pension by the respondent. It is his further submission that the family pension under the Scheme is payable only to the dependent of the freedom fighter and the petitioner cannot be treated as a dependent of late Venkanna Hamanna Nayak. He pointed out that the averments made by the petitioner in the petition itself would show that she was living separately and she had obtained a decree for maintenance against her husband; and therefore, the petitioner cannot be treated as a dependent of late Venkanna Hamanna Nayak.
5. In the light of the rival contentions advanced by the learned Counsels appearing for the parties the two questions that would emerge for my consideration in this petition are:
(i) Whether the petitioner is the first wife of late Venkanna Hamanna Nayak as claimed by her?
(ii) Whether, in the event of the petitioner being held as the first wife of late Venkanna Hamanna Nayak, the petitioner would be entitled for payment of family pension in terms of the Scheme introduced by the respondent?
6. Re: Question (i).--No doubt, it is the case of the respondent that late Venkanna Hamanna Nayak, both in the application filed on 10th July, 1992 seeking for grant of family pension under the Scheme, and also in the affidavit filed on 18th July, 1992, in support of his claim for payment of pension, did not indicate that the petitioner was his wife; and he had only indicated Smt. Satamma was his wife with seven children whose names were set-out in the application filed by him and had nominated only Smt. Satamma as a person who is entitled to receive the family pension. As it could be seen from Communication, Annexure-E, dated 25th November, 1999, written by the respondent to the Under Secretary, Government of Karnataka, the claim of the petitioner for grant of family pension was rejected on the short ground that late Venkanna Hamanna Nayak did not indicate that the petitioner was his wife. It is useful to refer to the relevant portion of the said communication which reads as follows:
". . . .As the late freedom fighter did not indicate about his having any second wife during his lifetime, it is not possible for this Ministry to consider the case of Smt. Laxmi for transfer of family pension at this stage".
Therefore, from the reading of Communication, Annexure-E, the only ground assigned by the respondent to reject the claim of the petitioner for grant of family pension was that late Venkanna Hamanna Nayak did not indicate that the petitioner was his wife. The question is, under the scheme, if the deceased freedom fighter has left more than one widow, each of the widows are entitled to be treated as separate entity and family pension is made payable, whether the claim of the petitioner could be rejected only on the sole ground that the deceased freedom fighter has not indicated at any point of time during his lifetime that the petitioner was his wife. In my considered view, if the materials on record satisfactorily prove that the petitioner is the first wife of late Venkanna Hamanna Nayak as claimed by her, it is not permissible for the respondent to negative the claim of the petitioner for grant of family pension. May be the circumstance, that late Venkanna Hamanna Nayak did not either in his application or in the affidavit filed indicate that the petitioner was his wife, is one of the circumstances or piece of evidence that the respondent may have to take into consideration while considering the claim of the petitioner that she is the wife of late Venkanna Hamanna Nayak. Ultimately, whether the petitioner is the wife of late Venkanna Hamanna Nayak or not is required to be decided by the respondent on objective assessment of the materials placed by the petitioner before the respondent. It is necessary to point out that when the Scheme has been introduced by the respondent keeping in mind the sacrifice made by the people who have fought for the freedom of this country, the claim of the widows of such freedom fighter after their lifetime cannot be lightly or in a mechanical manner rejected. Such a decision would not only suffer from the vice of arbitrariness and unreasonableness, it could be dubbed as one showing great disrespect or dishonour to the souls of the freedom fighters who sacrificed their life for the sake of the country. It is useful to refer to the observation made by the Hon'ble Supreme Court in the case of Mukund Lal Bhandari, supra, at paragraph 5 of the judgment. Paragraph 5 of the judgment reads as under:
". . . It is only later, i.e., from 1st August, 1980 that the benefit was extended to all irrespective of their income. The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need".
From the reading of the observation made by the Hon'ble Supreme Court, it is clear that the scheme was introduced more as a recognition for the sacrifice made by the freedom fighter than to compensate the freedom fighter by awarding monetary benefits. It is also the case of the petitioner that Smt. Satamma, who has been referred to as the wife by late Venkanna Hamanna Nayak, is the second wife of late Venkanna Hamanna Nayak. The heirship certificate, Annexure-B, dated 8th January, 1993 issued by the Tahsildar, Ankola, clearly shows that the petitioner is the first wife and through her late Venkanna Hamanna Nayak had two sons by name Ramesh Venkanna Gaonkar and Vittala Venkanna Gaonkar; and Smt. Satamma was the second wife and through her he had seven children whose names are set-out in the said heirship certificate. It is not in dispute that the State Government on an enquiry being held and after being satisfied that the petitioner is the first wife of late Venkanna Hamanna Nayak, had sanctioned family pension to petitioner also, in addition to the family pension granted to Smt. Satamma. The entries made in the Revenue Records, Annexure-G, dated 16th July, 1957 shows that there was some dispute between the petitioner and her husband, late Venkanna Hamanna Nayak and towards her maintenance certain items of lands were given to the petitioner. The petitioner has asserted that she is the first wife of late Venkanna Hamanna Nayak. The decision of the State Government taken to sanction family pension to the petitioner, the heirship certificate and the entry in the Revenue Records made at an undisputed point of time, would clearly support the case of the petitioner that she is the first wife of late Venkanna Hamanna Nayak. Normally, while considering these questions, the human experience would show that, it is very rarely a lady with children, would claim that she is the wife of a person who is not her husband. That too, in the present case, the heirship certificate produced supports the claim of the petitioner that she has two sons born through her husband, late Venkanna Hamanna Nayak. Under these circumstances, if the materials referred to above produced by the petitioner is considered objectively, it is not possible to take the view that the petitioner is not the first wife of late Venkanna Hamanna Nayak. No doubt, the decision required to be taken by the respondent is an administrative decision. But since the said decision affects the claim of the petitioner for payment of family pension, the respondent is required to take a decision objectively and on consideration of the material produced by the petitioner. The fact that the State Government had considered the claim of the petitioner for grant of family pension introduced by the State Government on the ground that she is the wife of late Venkanna Hamanna Nayak is a circumstance which cannot be lightly rejected by the respondent. It is reasonable to expect that the State Government would not part with its finances lightly to a person who is not entitled to claim the family pension. Therefore, I have no hesitation to come to the conclusion that the petitioner is the first wife of late Venkanna Hamanna Nayak.
Re: Question (ii).--The Circular, Annexure-F relied upon by the learned Counsel appearing for the petitioner, indicates that in cases where the freedom fighter pensioner dies leaving behind him more than one widow, dependent family pension under the Swathantratha Sainik Samman Pension Scheme is required to be paid to each of the widows treating the widows as separate entities and granting each of them full quantum of family pension. It is useful to extract the relevant portion of the Government Circular, Annexure-F, dated 28th July, 1982 which reads as hereunder:
"I am directed to state that as per the extent rules, in cases where the freedom fighter pensioner dies leaving behind more than one widow, the dependent family pension is sanctioned to each of the widows at full admissible rate treating them as separate entities".
Therefore, from the reading of the Government Circular issued by the respondent, it is clear that if the freedom fighter pensioner dies leaving behind him more than one widow, each of the widows are entitled for grant of family pension under the Scheme by treating each one of them as a separate entity. Therefore, the only question that remains to be considered is that, merely because the husband of the petitioner late Venkanna Hamanna Nayak had not nominated the petitioner for payment of family pension both in the application filed seeking of grant of family pension under the Scheme, and also in the affidavit filed in support of his claim for payment of family pension relied upon by Sri Aravind Kumar, whether the petitioner can be deprived of her right to seek family pension under the Scheme? As noticed by me earlier, the scheme has been introduced by the respondent keeping in mind the sacrifices made by the freedom fighter to secure independence to the Country; and the object of the scheme was to achieve two purposes, (1) to honour the freedom fighters for the sacrifice they have done for the country; and (2) to mitigate the hardship and sufferings. Therefore, the Scheme introduced by the Government of India makes the sanction of family pension on the death of the freedom fighter to each of the widows when there are more than one widow. In my view the circumstance that the freedom fighter, in his application or the affidavit filed has not indicated the name of one of his wives cannot be made as a basis to reject the claim of a widow of the freedom fighter, if it is established that the applicant for payment of award of the pension, was the widow of a freedom fighter. I have already taken the view while considering question No. (i) that the materials on record would clearly establish that the petitioner is a widow of late Venkanna Hamanna Nayak. Therefore, the only question that remains to be considered is, whether there is any merit in the submission of Sri Aravind Kumar, that since the petitioner was admittedly not residing with her husband at the time of his death, she is not entitled for payment of family pension under the Scheme? In my view there is no merit in the said submission. Clause 3 of the Scheme states who are eligible dependents, if the freedom fighter is not alive. According to the said clause, mother father, widower/widow if he/she has not since remarried, unmarried daughters are entitled. It is useful to extract the relevant portion of the said provision which reads as follows:
"3. Who are eligible dependents.--For the purpose of grant of Samman pension, family includes (if the freedom fighter is not alive) mother, father, widower/widow if he/she has not since remarried, unmarried daughters.
Not more than one eligible dependent can be granted pension and in the event of availability of more than one dependent the sequence of eligibility will be widow/widower, unmarried daughters, mother and father".
Therefore, from the, reading of the above provision, it is clear that the Scheme does not require that either the widow or any of the persons referred to therein are required to reside along with freedom fighter who was getting the pension at the time of his death and they should not have any other source of income. The clause extracted above, as noticed by me earlier, provides for grant of family pension if the freedom fighter is not alive, to mother, father, widower/widow (if he/she has not since remarried) or unmarried daughters. Therefore, the widow of a freedom fighter, irrespective of the fact whether she was residing with the freedom fighter at the time of his death or not; whether she has any source of income or not, is not a factor that is required to be taken into consideration while considering the claim for payment of family pension under the Scheme. As noticed by me earlier, the payment of pension, as observed by the Hon'ble Supreme Court is more of honour for the sacrifices made by the freedom fighter for the sake of the country. Therefore, I am unable to accept the submission of Sri Aravind Kumar that in view of the claim made by the petitioner in paragraph 7 of the petition that she had instituted civil proceedings against her husband, late Venkanna Hamanna Nayak and obtained a decree for the maintenance, she cannot be treated as eligible dependent of late Venkanna Hamanna Nayak and as such she is not entitled for award of family pension under the Scheme. Therefore, in the light of the discussion made above, I am of the view that the petitioner is entitled for award of family pension under the Scheme.
7. Now, the one other question that would arise for consideration is, from what date the petitioner would be entitled for family pension? Since the family pension is being paid to the widow of a freedom fighter, the same is required to be paid from the date of death of the freedom fighter. Admittedly, in this case, one Smt. Satamma was being paid family pension under the Scheme from the date of the death of late Venkanna Hamanna Nayak. Therefore, merely because the petitioner made a claim for family pension only on 5th January, 1994 cannot be a ground to deprive the petitioner for payment of family pension under the Scheme from the date of death of her husband, late Venkanna Hamanna Nayak.
8. Normally, in a matter like this, I would have directed the respondent to reconsider the claim of the petitioner for grant of family pension under the Scheme. However, having regard to the facts and circumstances of the case, and keeping in mind that the petitioner is a Senior Citizen aged more than 76 years, I am of the view, it would be in interest of justice to direct the respondent to sanction the family pension under the Scheme payable to the petitioner. Otherwise, the procedural delay and any error committed by the respondent again, may deprive the fruits of the Scheme introduced by the respondent during the petitioner's lifetime. In my view, this Court, while exercising its power under Article 226 cannot be oblivious to the fact situations and refuse to do complete justice to the parties. The principle laid down by the Division Bench of this Court in the case of State of Karnataka v. G. Lakshman, makes it clear that it is permissible for this Court to give such a direction. It is useful to refer to the observation made at paragraph 34 of the judgment which reads as follows:
"The learned Single Judge referred to the decision of the Supreme Court in Gujarat Steel Tubes Limited v. Gujarat Steel Tubes Mazdoor Sabha and Ors., for the proposition, that the High Court may make a final order in writ petitions without remanding the matter to the authorities, in appropriate cases. In para 79 the Supreme Court observed that:
". . . . So broad are the expressive expressions designedly used in Article 226 that any order which should have been made by the lower authority could be made by the High Court. The very width of the power and the disinclination to meddle except where gross injustice or fatal illegality and the like are present, inhibit the exercise but do not abolish the power".
Again at para 146 (at page 1931) it is said:
"What the Tribunal may in its discretion do, the High Court too, under Article 226, can, if facts compel do".
This proposition is reiterated in another decision, in Comptroller and Auditor General of India, Gian Prakash, New Delhi and Anr. v. K.S. Jagannathan and Anr., It is suffice, if para 20 (at page 546) is reproduced here.-
"There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion".
(emphasis supplied) Having regard to these principles, and the facts of this case, it has to be held that, this Court need not send back in every licensing case, the matter for a fresh decision by the Licensing Authority".
9. Therefore, in the light of the discussion made above, I make the following:
ORDER
1. The respondent is directed to grant the family pension payable to the petitioner in terms of the Swathantratha Sainik Samman Pension Scheme introduced by the respondent in terms of the Government Circular-Annexure-F, dated 28th July, 1982 made in No. 8/16/81-(P) issued by the respondent, from the date of death of her husband, late Venkanna Hamanna Nayak.
2. The respondent is given six weeks time from today to comply with the direction given above.
10. In terms stated above, this petition is allowed and disposed off. Rule issued is made absolute. However, no order is made as to costs.