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WRIT PETITION NO.1299 OF 2008
Date of decision: 9th July, 2008.
For approval and signature.
THE HONOURABLE SHRI JUSTICE F.I. REBELLO.
THE HONOURABLE SHRI JUSTICE S.B. DESHMUKH.
1. Whether Reporters of Local Papers }
may be allowed to see the judgment? }
2. To be referred to the Reporter or not? }
3. Whether Their Lordships wish to see
the fair copy of the judgment? }
4.
Whether this case involves a substantial
question of law as to the interpretation
}
}
of the Constitution of India, 1950 or }
any Order made thereunder? }
5. Whether it is to be circulated to the }
Civil Judges? }
6. Whether the case involves an important }
question of law and whether a copy of }
the judgment should be sent to Mumbai, }
Nagpur and Panaji offices? }
[ S.U.Tupe ]
Personal Assistant to
the Honourable Judge.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.1299 OF 2008
Gulabbai w/o Gopaldas Gujrati,
Age: 70 years, Occupation : Nil,
R/o. C/o. Girish Gopaldas Gujrati,
besides Prashant Classes,
Panhaleshwar Galli, Chopda,
Tq. Chopda, District Jalgaon.
.... PETITIONER
VERSUS
1. Union of India,
through the Secretary,
Ministry of Home Affairs,
Government of India, New Delhi.
2. The State of Maharashtra,
Through its Secretary,
General Administration Department,
Freedom Fighters Cell,
Mantralaya, Mumbai.
3. The Collector, Jalgaon,
District Jalgaon.
.... RESPONDENTS
...
Shri.N.L. Jadhav, Advocate for petitioner.
Shri.Alok Sharma, Standing Counsel for
Union of India.
Shri.S.D. Kaldate, AGP for respondents - State.
...
CORAM: F.I. REBELLO, AND
S.B. DESHMUKH, JJ.
DATE : 9TH JULY, 2008.
ORAL JUDGMENT: ( PER : F.I. REBELLO, J.)
. Rule, heard forthwith.
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2. The petitioner is the widow of Gopaldas
Kanhyalal Gujrati. The late Gopaldas Kanhyalal
Gujrati had participated in the Indian
Independence Movement and was sentenced for six
months by Dharangaon Magistrate on 28-08-1942. He
was released on 12-01-1943 unconditionally, as per
the Government Resolution bearing Hd No.
6528/4(21156) dated 09-01-1943. The husband of
the petitioner is receiving Freedom Fighters
Pension from the Government of Maharashtra.
3. It is
the petitioner's case that the
Government of India also grants a pension.
Accordingly, the petitioner's late husband had
applied for Freedom Fighters Pension from the
Central Government. The same was rejected on
04-12-1974 on the ground that the actual
imprisonment of the husband of the petitioner was
less than six months. A fresh application was
submitted on 31-12-1982 supported by required
documents. In the meantime, the husband of the
petitioner expired. After that, the petitioner
pursuing the matter and has submitted all required
documents on 27-07-2007. In spite of receiving of
the application, the Central Government has
neither granted pension nor communicated anything
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to the petitioner. Under these circumstances, the
present petition has been filed.
4. The Sanctioning Authority for the pension
is the Union of India through the Secretary,
Ministry of Home Affairs, Government of India, New
Delhi. The competent authority in the State of
Maharashtra to send the proposal of the petitioner
to respondent No.1 is the Secretary of General
Administration Department, Freedom Fighters Cell,
Mantralaya, Mumbai. Respondent No. 3 is the
Collector,
Jalgaon, is also authority to forward
necessary information to the State and Union
Government.
5. According to the petitioner, on the death
of her husband on 29-09-1996, she had persuaded
the matter with the Central Government. Her case
was recommended by the President of District
Facilitation Committee Jalgaon to the Government
of Maharashtra for grant of Freedom Fighters
Pension from the Central Government. The
Collector of Jalgaon, according to the petitioner,
submitted the proposal to the Government of
Maharashtra on 27-06-2003. Various other
dignitaries also supported the claim of the
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petitioner. Several representations were made by
the petitioner from time to time. It is set out
that late husband of the petitioner had not made a
request nor was his sentence curtailed on account
of any such request. The curtailment was purely a
decision of the then Government. It is submitted
that considering law declared by the Supreme
Court, the petitioner would be entitled to Freedom
Fighters Pension granted by the Central Government
and rejection of the petitioner’s case is,
therefore, arbitrary and consequently liable to be
set aside.
6. Reply has been filed on behalf of
respondent No. 1 by Manmohan Banarasi Das, Under
Secretary in the Freedom Fighter Division of
Ministry of Home Affairs, Lok Nayak Bhawan, New
Delhi. It is set out in the affidavit, based on
information gathered from the office record, that
Swatantrata Sainik Sanman Pension Scheme, 1980 was
introduced by the Government of India during the
Silver Jubilee Year of the Independence. That the
necessary condition for considering the
application of any individual is that the State
Government should recommend the individual’s case
to the Central Government. Only those
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applications which have been duly recommended by
the State Government are considered by the Central
Government. In the petitioner’s case, it was
informed that it was not a fit case for
recommendation in terms of communication of the
Collector of Jalgaon, on 03-06-1986. Even on this
count, it is submitted that the petitioner is not
entitled to Freedom Fighters Pension introduced by
the Government of India. Reliance is placed on
the judgment of the Supreme Court in the case of
Manoharlal Azad vs. Union of India and others,
{(2002) 10
SCC 568},
568} to contend that only those
individual who have undergone the actual
imprisonment of six months is entitled to claim
the Freedom Fighters Pension and therefore, on
this count, the petitioner’s husband was not
entitled for the Freedom Fighters Pension. The
claim of the petitioner’s husband was rejected on
the ground that actual imprisonment was less than
six months. As the petitioner’s husband was not
eligible for the said pension, the petitioner has
not right to claim it. Consequently, the petition
be dismissed.
7. The issue, therefore, for consideration is
whether the petitioner’s late husband, who is
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admittedly a freedom fighter and who had been
sentenced to six months imprisonment, but had
suffered lesser imprisonment on account of release
unconditionally in terms of Government Resolution
dated 09-01-1943, was entitled to the Freedom
Fighters Pension granted by respondent No.1.
8. The relevant rule of clause (a) of
Paragraph – 4 of the “Freedom Fighters’ Pension
Scheme, 1972” extended to all freedom fighters
from 01-01-1980 reads as under :
“(a) A person who had suffered a minimum
imprisonment of six months in the mainland
jails before independence. However, ex-INA
personnel will be eligible for pension if
the imprisonment detention suffered by them
was outside India.”
. We may, therefore, first consider the case
law as relied upon by the petitioner in support of
the contention that the Supreme Court has
considered the said clause. The first such
judgment is in the case of Surja and others vs.
Union of India and another, {1992 (1) Mah.LR 388}
= (1992 SC 777). Learned Supreme Court, in that
matter, has been pleased to hold on the facts
there, that the petitioners had participated in
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Arya Samaj movement (who were also entitled to
pension under Swatantrata Sainik Samman Pension
Scheme) and were sentenced to undergo imprisonment
for six months. While they were undergoing
sentence, without praying for any remission, a
general amnesty was declared by the then Nizam on
his birthday and the sentence was reduced and the
petitioners were set free. The Court held that it
was a fact that the petitioners were sentenced to
six months imprisonment and the fact that
remission was granted, would not take away their
right to earn pension.
ig This judgment was followed
in the case of Mukund Lal Bhandari and others vs.
Union of India and others (1993 AIR SCW 2508).
The Court reiterated view taken in the case of
Surja (Supra). In other words, if the period of
six months sentence was curtailed, not on account
of any act of seeking remission by the person, but
on account of the State or Authorities
unilaterally granting remission or curtailing the
period of sentence would not disentitle the
applicant from getting pension.
9. Learned counsel on behalf of the
respondents however has drawn our attention to the
judgment of the Supreme Court, in the case of
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Union of India and others vs. Manohar Lal Azad
and another (Supra). On the facts there, it was
submitted before the learned Supreme Court that
the applicant for pension did not fulfil
eligibility criteria. On behalf of respondents,
reliance was placed on the judgment of Surja
(Supra). The Supreme Court posed to itself the
question as to whether the first respondent is
entitled to pension under Samman Pension Scheme.
The Court noted from the scheme that the
eligibility criteria to earn pension under that
scheme
is that one should be Freedom Fighter and
suffering imprisonment. Freedom Fighter is
defined in Clause (a) of Para. 4 of the Scheme
and on perusal of that clause, the Supreme Court
observed as under:
“A perusal of this clause makes it
abundantly clear that what is germane is
suffering a minimum imprisonment of sixmonths in the mainland before independence
but not merely suffering an order awarding
imprisonment of six months by a competent
court. Explanation 2 to Para 4, however,
treats the period of normal remission up to
one month as part of actual imprisonment.”
. After considering the observations in Surja
(Supra), the Court proceed to observe that it was
clear that on the peculiar facts of that case, it
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was held that each of the petitioners there,
satisfied the condition for earning the benefit of
pension. The Court further proceeded to observe
as under :
“We are unable to read that judgment as
laying down that where a person has beensentenced to imprisonment for six months or
more but if he comes out within a month or
so, for whatever reason, without serving
his sentence, he will still be a freedom
fighter within the meaning of the Scheme
and eligible for the samman pension. Tosay so, in our opinion, would amount to
giving a go-by to the definition of the
expression“freedom fighter”
substituting new eligibility criteria for
andthe Scheme enlarging its scope which is not
only impermissible but also contrary to thespirit of the Scheme framed on the basis of
the material and keeping in mind the class
of the political sufferers who would be the
beneficiaries of the Samman Pension
Scheme.”
. Therefore, considering the judgment in the
case of Manoharlal Azad (Supra), the law as
declared would require the applicant to have
suffered six months actual imprisonment subject to
the proviso whereby normal remission of one month
is considered as a part of actual imprisonment.
10. Admittedly, on the facts in the instant
case, the late husband of the petitioner was
sentenced on 28-08-1942. In the ordinary course,
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he would have been released on 27-02-1943. He was
however released on 12-01-1943. Even if we add
one month as a remission, then the period of six
months would have expired on 11-02-1943. The
husband of the petitioner, therefore, in terms of
the judgment in the case of Manohar Lal (Supra),
had not undergone the actual sentence of six
months.
11. On behalf of petitioner, learned counsel
submits that the judgment in the case of Surja
(Supra)
and Mukund Lal (Supra) are of co-ordinate
Benches and another co-ordinate Bench could not
have taken a view which is contrary to the view
taken in the judgment in the case of Surja
(Supra), which was followed in the case of Mukund
Lal (Supra). It is true as noted by the
Constitution Bench of the Apex Court in Union of
India vs. Raghubir Singh (dead) by L.Rs. (AIR
1989 SC 1933), wherein the Supreme Court observed
as under :
“A pronouncement of law by a Division Bench
of the Supreme Court is binding on a
Division Bench or a smaller same number of
judges and in order that said decision be
binding, it is not necessary that it should
be a decision rendered by the Full Court or
a Constitution Bench of the Court.”
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. We have considered the said submission. In
the first instance, all the judgments are of
Co-ordinate Benches of two Judges. When there be
so conflicting judgments of Co-ordinate Benches of
the Supreme Court, as pointed out by the Full
Bench of the Court in Kamleshkumar Ishwardas Patel
vs.Union of India and others ( 1994 Mh.L.J.1668),
it is open to the Court to consider the judgment
which in its opinion is the better in point of law
irrespective
pronounced.
of
The
ig when
fact,
the
however,
judgments
remains
were
that
insofar as case of Manohar Lal (Supra) is
concerned, the Supreme Court considered the
judgment in the case of Surja (Supra). It is true
that case of Mukund Lal (Supra) was not considered
but if we peruse the judgment in the case of
Mukund Lal (Supra), the Court excepted the ratio
of the judgment in the case of Surja (Supra). The
other aspect of the matter is that the judgment in
the case of Surja (Supra) was directly under
consideration by the Supreme Court in Manoharlal
Azad (Supra). The Supreme Court noted that the
judgment in Surja (Supra) was rendered on the
peculiar facts of that case and then declared the
position of law, that an applicant must have
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actually suffered a minimum imprisonment of six
months less the remission period of one month. On
being sentenced and suffering imprisonment, if the
sentence was curtailed not on account of the
applicant’s request but by the State, it would not
be sentence undergone for six months. It is not
possible for us, therefore, to take a view
different than the view taken in the case of
Manohar Lal Azad (Supra) considering that the case
of Surja (Supra) was in issue and considered and
explained in Manohar Lal Azad (Supra). The law as
it now stands
ig would be the law as declared in
Manohar Lal (Supra) and that would be the law
binding on the courts under Article 141 of the
Consitution of India.
12. Considering the above, as the petitioner’s
husband had not suffered actual six months
imprisonment, it is not possible for us to
entertain with the decision taken by respondent
No.1 rejecting the claim of the petitioner and
consequently, Rule discharged. There shall be no
order as to costs.
[ S.B. DESHMUKH, J.] [ F.I. REBELLO, J.]
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sut/u/JULY08/wp1299.08
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