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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.4633 OF 2016

Sarubai w/o Narayansinh Thakur

Age : 87 years, Occu : Household,

R/o. Sawargaon Mal, Tq. Hadgaon,

Dist. Nanded .. Petitioner

Versus

1.The State of Maharashtra

Through it’s Secretary,

General Administration Department,

(Feedom “Fighters Section),

Mantralaya, Mumbai – 32.

2.Freedom Fighters’ High Power Committee,

New Administrative Building,

8

th

Floor, Mantralaya,

Mumbai -32, through it’s

Membere Secretary.

3.The Desk Ofcer,

General Administration Department,

(Freedom Fighters Section),

Mantralaya, Mumbai-32.

4.The Collector,

Collector Ofce, Nanded .. Respondents

….

Mr V.S. Panpatte, Advocate for the petitioner

Mr P.N. Kutti, AGP for Respondents No.1 & 4

….

CORAM : SUNIL P. DESHMUKH &

B. U. DEBADWAR, JJ.

Date : 04-03-2020

ORAL JUDGMENT (PER : B.U. DEBADWAR, J. ) :

1.Rule. Rule made returnable forthwith and heard learned

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counsel for appearing parties fnally, by consent.

2.This is a petition under Article 226 of the

Constitution of India for setting aside order dated 23-06-2000

passed by respondent no.1 whereunder claim for freedom

fighters pension stands denied and for direction to respondents

to award all the benefits to petitioner, applicable to the

underground freedom fighters under the scheme ‘ Swatantrya

Sainik Sanman Pension ’ (hereinafter referred to as the

‘Scheme’) from 14-08-1995, declaring entitlement to the same

being widow of underground freedom fighter.

3.Facts giving rise to petition, in nutshell are as under :

. Petitioner is widow of one Narayansinh Kisansinh Thakur,

resident of village Sawargaon Mal, Tal. Hadgaon, District

Nanded, who had been an underground freedom fighter in

freedom struggle referred to as ‘Hyderabad Mukti Sangram ’,

during 1947-1948.

4.Government of Maharashtra with a view to honour and

assist persons, who had participated in the freedom struggle has

framed a scheme referred to as ‘ Swatantrya Sainik Sanman

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Pension’. The object of the scheme is to provide economic help

to freedom fighters and to pay tribute to persons, who had

fought and struggled for independence.

5.Husband of the petitioner namely Narayansinh Kisansinh

Thakur had actively participated in freedom struggle and had

taken part in several activities including supply of weapons and

secret information to the volunteers, attack on police and

campaign against erstwhile Nizam government.

6.Husband of the petitioner had also been participant in

awareness session at Sawargaon during Razakar movement,

wherein Nizam Police suddenly made attack on people /

freedom fighters and 12 people / freedom fighters were killed.

He had worked as an underground volunteer under the

leadership and guidance of veteran freedom fighters namely

Swami Ramanand Tirth, Late G.R. Palkar, Govindrao Narsingrao

More, Laxman Gaikwad, Nagorao Bhujangrao Mugal, Panchal,

Vithal Nagoba Bhosale, Gangaprasad Gangaram Vetalkar etc. In

the freedom struggle, alongwith him Punjabrao Masarao

Wadkute, Narayan Ganpatrao Sawant, Ganpatrao alias Ganya

Yadavrao Tagadpalle, Rathod and others had participated as

underground freedom fighters. In addition to aforesaid

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activities, Narayansinh Kisansinh Thakur had also engaged

himself in distributing Tiranga flags, Gandhi caps and weapons.

Besides, asked the people not to pay land revenue and other

taxes to the government. So also, he had p articipated in Dorli

Satyagraha under the instructions of Ganpatrao @ Ganya

Yadavrao Tagadpalle. The satyagrahis had arranged for flag

saluting programme at Sawargaon, in which near about four to

five thousand satyagrahis had participated under the leadership

of Jaiwantrao Waipankar, Yadavrao Master, Pawar, Bansilal

Toishniwal. When flag saluting programme was going on, the

Nizam police had suddenly attacked the gathering and number

of persons were killed. The offence in respect of the flag saluting

programme came to be registered against unknown 3000

freedom fighters including husband of the petitioner.

7.Narayansinh Kisansinh Thakur applied on 14-08-1995

claiming benefits of the Scheme extended to the underground

freedom fighters. In support of the claim, he had submitted his

affidavit in Form-’A’ giving details of participation, in Hyderabad

Mukti Sangram during the period 1947-1948, on stamp paper.

In addition to his own affidavit, he had also filed affidavits of

veteran freedom fighters namely Nagorao Bhujanga Mugal,

Bhujanrao Panduji Panchal and Lalu Ratna Rathod along with

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their imprisonment certificates and Sanman Patraks.

8.Narayansinh Kisansinh Thakur died on 19-07-1997. Upon

that the petitioner being his widow submitted her affidavit on

stamp paper to the Collector, Nanded on 24-07-1998 claiming

the benefits of Scheme to which her husband was entitled.

9.After scrutinizing the documents annexed to the

application, conducting the enquiry and interview of the

petitioner, all the members of District Honour Committee on 30-

09-1998 issued certificate expressing their satisfaction about

the claim and entitlement of the petitioner for the pension on

account of participation of her husband Narayansinh Kisansinh

Thakur in freedom struggle. District Honour Committee (ftYgk

xkSjo lferh) had issued the aforesaid certificate after passing the

resolution to this effect in a meeting convened on 28-08-1998.

10.Respondent No.4 - Collector Nanded, after satisfying

himself forwarded the claim of the petitioner along with

recommendation of the District Honour Committee to

respondent no.1 - State for consideration and passing necessary

orders. Though much time elapsed, nobody from respondents

communicated the petitioner about the decision taken in respect

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of her claim. After waiting for a long, when petitioner realized

that respondents are not paying heed to her claim, lastly vide

application dated 01-07-2011, under Right to Information Act

demanded copies of all the papers and documents from the file

concerning her claim including decision taken by High Power

Committee by paying requisite fees and following necessary

procedure.

11. According to the petitioner, after getting all the

papers and documents asked for including copy of the decision,

for first time on 07-09-2011 she came to know that her claim

for pension under Scheme had been purportedly rejected on

23-06-2000, whereas the claims of various underground

freedom fighters similarly situated as her husband, came to be

allowed.

12. Upon knowledge pertaining to the rejection of the

claim, the petitioner rushed to this Court with present writ

petition claiming aforesaid reliefs.

13. Respondent nos.1 to 4 resisted the claim by filing

affidavit-in-reply of Snehalata Tryambakappa Swami, Naib

Tahsildar attached to Collector Office Nanded, inter alia, denying

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compliance of Government Resolution dated 04-07-1995 and

entitlement of the petitioner to claim the pension under

Scheme. According to the respondents, upon the scrutiny in the

light of government resolution dated 04-07-1995 the proposal

for pension under Scheme moved by the petitioner was found to

be not tenable as it was not supported by evidence to satisfy

the condition nos.1, 3 and 4 of the said Government Resolution.

So also the claim was not supported by documentary evidence

which was essential. Besides respondent nos.1 to 4 resisted the

claim contending that, it is hit by Government Resolution dated

02-06-2016 which speaks that after the death of freedom

fighter no pension shall be sanctioned to his / her spouse / heirs

and accordingly prayed for dismissal of writ petition.

14. In view of aforesaid rival contentions in writ petition

and affidavit-in-reply submitted by respondents there arise two

issues, one is pertaining to sufficiency of material placed on

record to substantiate the claim of pension and another is

pertaining to effect of Government Resolution dated 02-06-2016

on the claim of pension to be granted under Scheme.

15. Mr V.S. Panpatte, learned counsel representing

petitioner while taking us through averments made in the writ

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petition, documents annexed thereto and various judgments of

the Apex Court and this Court explaining object of Scheme

submits that, the decision rejecting the claim of the petitioner is

an example of non-application of mind to the material provided

along with the application. The approach of the respondents is

completely contrary to the intention underlying the provisions of

the Scheme. The approach of the authority while scrutinizing

the claim was not proper and analogus with object of the

scheme. Mr Panpatte, learned counsel for the petitioner not

only demonstrated as to how the material placed on record by

the petitioner is sufficient to satisfy clause ‘A’ of condition no.1,

but also demonstrated as to how certificates of freedom fighters

namely Nagorao Mungal, Bhujangrao Pandoji Panchal and

Lalu Ratna Rathod annexed to the petition would be in

compliance of condition / requirement no.2 of the Government

Resolution of 1995 which are self-speaking about the role

played by Narayansinh Kisansinh Thakur in freedom struggle as

an underground freedom fighter.

16. Learned counsel Mr Panpatte while diverting our

attention towards the report of District Honour Committee

recommending pension to applicant on account of contribution

made by her husband Narayansinh Kisansinh Thakur in freedom

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movement of 1947-48, as an underground freedom fighter and

copy of report of High Power Committee, argued as to how

recommendation made by District Honour Committee is clear,

cogent and sufficient to establish genuineness of the claim of

pension made by the petitioner and as to how the order

rejecting the claim is not only cryptic, vague, but also contrary

to the material placed on record. While highlighting the non-

application of mind of the concerned authority, Mr Panpatte,

learned counsel for the petitioner submitted that, clauses ‘B’ and

‘C’ of condition / requirement no.1 of Government Resolution of

1995 are of little significance as Mr Narayansinh Kisansinh

Thakur had not joined any school and he had not been nabbed

by police while extending services as an underground freedom

fighter. Besides he demonstrates that affidavits of two

supporting freedom fighters are not contrary with the affidavit

of petitioner as observed by the authority in impugned order.

In view of all these submissions, Mr Panpatte submitted that,

material placed on record by the petitioner is clear, cogent and

sufficient to prove the claim, therefore, prayed to direct

respondent no.1 to issue or to grant pension under Swatantray

Sainik Sanman Pension Scheme to the petitioner by allowing

writ petition.

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17. Per contra, Mr P.N. Kutti, learned Additional

Government Pleader representing respondent nos.1 & 4 argued

that, after scrutiny of proposal forwarded by collector Nanded,

High Power Committee rightly rejected the same on realizing

that, it does not fulfill conditions / requirements of Government

Resolution dated 04-07-1995. There is no evidence to satisfy

conditions / requirements nos.1, 3 and 4. In the absence of

cogent evidence fulfilling all the conditions of the Government

Resolution, pension under the Swatantray Sainik Sanman

Pension Scheme cannot be granted. When there is no sufficient

documentary evidence to prove the participation of late

Narayansinh Kisansinh Thakur in freedom struggle, merely on

the basis of the vague affidavit of the petitioner and affidavits of

two supporting freedom fighters which are not consistent inter

se, claim of the petitioner cannot be entertained and granted.

The impugned order rejecting the claim based on record is

correct and proper, therefore, petition is liable to be dismissed.

In addition to that the petition is also liable to be dismissed as it

is hit by Government Resolution dated 02-06-2016.

18. In light of aforesaid submissions made at bar by

counsel representing both sides, now we turn towards evidence

placed on record and various decisions rendered by the Apex

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Court and this Court relied upon by learned counsel,

Mr Panpatte.

19. It is revealed from record that, late

Narayansinh Kisansinh Thakur had moved an application in

prescribed form to the Collector, Nanded on 14.08.1995 for

getting freedom fighters pension. During the pendency of that

application, he died on 19.07.1997. Upon death of the husband

petitioner submitted her affidavit before Collector, Nanded on

23.07.1998 and claimed pension being widow of late

Narayansinh Kisansinh Thakur.

20. In addition to her own affidavit referred to above,

petitioner has brought on record affidavits of three freedom

fighters namely Nagorao Bhujangrao Mungal, R/o. Village Ijali,

Tq. & Dist. Nanded, Bhujangrao Pandoji Panchal, R/o. Village

Ijali, Tq. & Dist. Nanded and Lalu Ratna Rathod, R/o.

Chikaltanda, Tq. & Dist. Nanded. In addition to affidavits of

three freedom fighters, petitioner has also brought on record,

copy of the news pertaining to the death of 12 freedom fighters

caused in a firing made by villagers of the village Sawargaon,

Tq. & Dist. Nanded, while they protecting tricolour flag hoisted

for protesting Nizam rule published in a book of Hyderabad

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Mukti Sangram (Hyderabad Liberation Movement) and copy of

charge-sheet in respect of the incident took place at village

Dorli, Tq. Hadgaon at Hadgaon Police Station against

Jaywantrao Nagorao Yadavrao, Master Ganya and 3000

absconding accused.

21. In her affidavit dated 23.07.1998, petitioner has

given full account of activities made by late Narayansinh

Kisansinh Thakur in independence struggle of 1947-48 against

Nizam rule as an underground freedom fighter. All the details of

those activities find place in her affidavit. Petitioner states in

her affidavit that, her husband late Narayansinh Kisansinh

Thakur had participated in the programme of hoisting tricolour

flag arranged by villagers of Sawargaon. Besides, he had joined

the freedom fighters who had cut standing trees of Shindi, Moh

from the forest to put the Nizam government in monetary loss.

In addition to that, her husband along with other freedom

fighters fought against soldiers of Nizams (Razakars), who had

suddenly committed attack on the villagers of village

Sawargaon, so also her husband - late Narayansinh Kisansinh

Thakur had active participation in Dorli Satyagrah, Patnoor

Satyagraph, Rohi Pimpalgaon Satyagrah, Chikala Satyagrah. In

addition to that, he had joined in tricolour flag hoisting at

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Kolgaon-Nava, distributed pamphlets, passed secret information

issued from Umarkhed Camp to various underground freedom

fighters and also joined the group of freedom fighters in the

foodgrains loot from kamari godown.

22. The affidavit of petitioner clearly depicts that names

of veteran freedom fighters under the leadership of whom her

husband participated in freedom movement as an underground

freedom fighter including aforesaid three freedom fighters

whose affidavits have been placed on record.

23. Out of the aforesaid three freedom fighters who

have submitted their affidavits in support of the claim of the

petitioner, Nagorao Bhujangrao Mungal and Bhujangrao Pandoji

Panchal, both R/o. Ijali, Tq. & Dist. Nanded, are the freedom

fighters who had undergone imprisonment for the period of two

years. Whereas, Lalu Ratna Rathod was the freedom fighter

who was declared as absconding and warrant was issued

against him for the reason of his participation in freedom

movement of 1947-48. Affidavits of first two freedom fighters

are supported by true copies of extract of register of undertrials

of Central Jail, Hyderabad and Certificate of Honour

(Sanmanpatra) issued to them by the State of Maharashtra in

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1984.

24. Respondents have not disputed genuineness of

either true copies of extract of Central Jail, Hyderabad or

Certificate of Honour. Both the true copies of extracts of

register no. 4/undertrial Central Jail, Hyderabad, are clear

enough to demonstrate that Nagorao Bhujangrao Mungal and

Bhujangrao Pandoji Panchal were the freedom fighters who had

undergone imprisonment for more than two years for acts

committed by them in freedom movement for which they were

charge-sheeted and tried. It is not in dispute that, Swatantrya

Sainik Sanman Pension came to be granted to the aforesaid

three freedom fighters, who have filed affidavits to support the

claim of the petitioner.

25. The affidavits of Nagorao Bhujangrao Mungal,

Bhujangrao Pandoji Panchal and Lalu Ratna Rathod appear to be

supporting the affidavit of the petitioner in respect of

participation of Narayansingh Kishansingh Thakur in freedom

movement of 1947-48 as underground freedom fighter.

26. Neither affidavit-in-reply submitted by the State sets

out alleged variance nor AGP could point out as to how those

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are at variance. Affidavits on record seem to throw enough light

on the various acts and deeds committed by late Narayansinh

Kisansinh Thakur, in freedom movement of 1947-48, as an

underground freedom fighter. There is no substance in main

two grounds on the basis of which the State appears to have

refused to grant pension to the petitioner going rigidly,

perfunctorily and pedantically.

27. No due credence is given to affidavits of three

freedom fighters out of which two freedom fighters have

undergone sentence of more than two years, copy of news

published in the book of Hyderabad Mukti Sangram and copy of

charge-sheet no.2/Aajur 1357 fasli relied upon by the petitioner.

Aforesaid documents pertain to participation of late Narayansinh

Kisansinh Thakur in freedom movement of 1947-48, those

would not be discarded outrightly. Three freedom fighters, who

have filed affidavits in support of claim of the petitioner clearly

state that, late Narayansinh Kisansinh Thakur participated in

freedom movement as an underground freedom fighter .

Insistence on specific documentary evidence pertaining to

involvement of late Narayansinh Kisansinh Thakur about playing

role, in view of aforesaid, is rather overbearing while to

considerable extent his involvement in freedom struggle

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appears to have ratification in the affidavits, contents of which

primarily converge on his participation and this aspect would

hardly be refutable. Pedantic strictness in such matters as

referred under judgments of supreme court and high court

would not subserve the laudable object under the Scheme.

28. Perusal of the Government Resolution dated 07-08-

1992 would reveal that, for being eligible to the benefits of the

freedom fighters’ scheme, the name ought to have been

recommended by the District Level Honour Committee. The

recommendations of, at least, two freedom fighters, should

have been held to be entitled under the said scheme and who

were knowing person concerned, from the time of movement,

should be annexed along with the application.

29. The Government Resolution dated 04-07-1995

provides for compliance of certain requirements in support of

the claim of the person seeking benefit under the freedom

fighters’ scheme. It calls for that, the applicant concerned will

have to substantiate as to what hardship he was required to

suffer. He would be required to prove that, either he was

compelled to leave his house, that he was required to leave his

education, or that he was assaulted by police in such a manner,

which resulted in his disability. However, on perusal of the

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provisions under the scheme, it would reveal that any of these

conditions is required to be fulfilled and not at all, all the three.

A person could be entitled under the scheme if he was required

to leave his house, or he was required to leave his education or

he was assaulted in such a manner that he received physical

disability. The said Government Resolution would further require

that, the certificates of two freedom fighters, who were

sentenced to suffer imprisonment for two years or who were

underground for a period of two years. The said Government

Resolution further provides that, if any official document in

support of the claim is available or if a newspaper item

reporting that the candidate concerned was absconding is

available, the same should also be submitted.

30. In Kamalbai Shankar Vs. State of Maharashtra

& Ors., Civil Apeal No.5344 of 2012 (@ SLP © No.8899 of

2010) decided on 20-07-2012 , the Apex Court after referring

decision in Gurdial Singh Vs. Union of India & Ors., [2001]

(8) SCC 81 observed as under :

“7. The standard of proof required in such cases

is not such standard which is required in a criminal

case or in a case adjudicated upon rival contentions

or evidence of the parties. As the object of the

Scheme is to honour and to mitigate the sufferings of

those who had given their all for the country, a

liberal and not a technical approach is required to be

followed while determining the merits of the case of

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a person seeking pension under the Scheme. It

should not be forgotten that the persons intended to

be covered by the Scheme had suffered for the

country about half-a-century back and had not

expected to be rewarded for the imprisonment

suffered by them. Once the country has decided to

honour such freedom fighters, the bureaucrats

entrusted with the job of examining the cases of

such freedom fighters are expected to keep in mind

the purpose and object of the scheme. The case of

the claimants under this Scheme is required to be

determined on the basis of the probabilities and not

on the touchstone of the test of “beyond reasonable

doubt”. Once on the basis of the evidence, it is

probabalized that the claimant had suffered

imprisonment for the cause of the country and during

the freedom struggle a presumption is required to be

drawn in his favour, unless the same is rebutted by

cogent, reasonable and reliable evidence.”

31. Undoubtedly, in case in hand, the claim of the

petitioner has been recommended by District Level Honour

Committee and out of the three freedom fighters, two have

undergone sentence of more than two years for their active

participation in freedom struggle. It has been demonstrated in

the three affidavits continuous participation of Late Narayansinh

Kisansinh Thakur in freedom movement of 1947-48 as an

underground fighter is clear and cogent.

32. The record reveals that after receiving the proposal

along with affidavits of three freedom fighters and

recommendation of District Honour Committee from the office of

Collector, Nanded, it was placed before High Power Committee

constituted by the Government. Upon perusal the check list

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brought on record by the petitioner after obtaining the same

from the Government under Right to Information Act, it can be

gathered that, Desk Officer, Deputy Secretary, Principal

Secretary and Member Secretary by their written note below

check list have unanimously recommended the claim of the

petitioner. However, subsequently the claim came to be rejected

by Chairman and State Minister, General Administration with a

very cryptic order stating that there is no compliance of clauses

'A' to 'C' of condition no.1 and there is variance between

affidavit of applicant and affidavits of freedom fighters, while

there does not appear to be any material inconsistency in

affidavits of freedom fighters which are consistent with the

affidavit of the petitioner. Affidavits to quite a large extent

convey on Narayansinh Kisansinh Thakur’s participation in

freedom movement continuously as an underground freedom

fighter, by remaining away from house. Therefore, the

impugned order is not only vague, but also is cryptic,

ambiguous and inconsistent with the recommendations of the

members of High Power Committee, discussed in para supra.

33. In case at hand, on the basis of preponderance of

probabilities, evidence discussed in para supra appears to be

quite probable, sufficiently complying with the object of the

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scheme discussed by the Hon'ble Supreme Court in para supra.

34. In Kishansinha s/o Tukaramsinha Chandel Vs.

The State of Maharashtra & Ors., (Writ Petition No.2831

of 2000) with connected writ petitions decided on 26-07-

2010, this Court observed as under :

“4. Perusal of the Government Resolution dated

7

th

August 1992 would reveal that for being eligible to

the benefits of the Freedom Fighters' Scheme, the

name ought to have been recommended by the

District Level Gaurav Samiti. The recommendations

of, at least, two freedom fighters, who have been

held to be entitled under the said scheme, and who

were knowing the candidate concerned, from the time

of movement, should be annexed along with the

application.

5. The Government Resolution dated 4

th

July

1995 has provided the details regarding evidence

which is to be submitted in support of the claim of

the persons seeking benefit under the Freedom

Fighters' Scheme. In so far as the claim under the

category of underground Freedom Fighters is

concerned, it is stipulated that the applicant

concerned will have to substantiate as to what

hardships he was required to suffer. He would be

required to prove that either he was compelled to

leave his house, that he was required to leave his

education, or that he was assaulted by Police in such

a manner, which resulted in his disability. However,

on perusal of the provisions under the Scheme, it

would reveal that either of these conditions is

required to be fulfilled and not all the three. A person

could be entitled under the scheme, if he was

required to leave his house, or if he was required to

leave his education or he was assaulted in such a

manner, that he received physical disability. The said

Government Resolution would further require that the

certificate of two freedom fighters who were

sentenced to suffer imprisonment for two years or

who were underground for a period of two years, in

support of the claim of the candidate should be

submitted. The said Government Resolution further

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provides that if any official document in support of

the claim is available or if any newspaper report,

reporting that the candidate concerned was

absconding, is available, the same should also be

submitted.”

35. In case at hand there is a clear and cogent evidence

about fulfillment of clause 'A' of condition nos.1, 2 and 5 viz.

remaining away from the house, affidavits of two freedom

fighters who have undergone sentence of more than three years

and clear recommendation of District Honour Committee ,

therefore, sufficiently complying with Government Resolution of

1995.

36. The petitioner has placed reliance on some of the

orders granting pension demonstrating that claims of other

similarly situated claimants i.e. Ramrao Namdeorao Pawar and

Pandurang Chudaji Munde have been granted. This aspect

cannot be overlooked while considering the case of the

claimants.

37. It is true that by Government Resolution dated 02-

06-2016 government has taken decision not to grant the

pension to the freedom fighters, who died, when his claim was

pending and his spouse will not be entitled to claim arrears of

pension. The facts of the case at hand are somewhat different.

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Initially, in the year 1995 late Narayansinh Kisansinh Thakur

had moved the application for grant of pension under Scheme,

but during the pendency of that application, he died. Thereafter,

the petitioner being widow of late Narayansinh Kisansinh

Thakur, as directed by respondent no.1, in the year 1998

submitted her fresh affidavit claiming pension giving details

about the participation of her husband late Narayansinh

Kisansinh Thakur in freedom struggle and claiming pension as a

widow of late Narayansinh Kisansinh Thakur. Therefore, present

claim would not be adversely affected aforesaid Government

Resolution dated 02-06-2016.

38. Having regard to the totality of record discussed

above in light of purpose and object underlying the freedom

fighters scheme discussed by Hon'ble Apex Court in Gurdial

Singh case (cited supra) and the age of the petitioner, we deem

it appropriate to allow the writ petition. Accordingly, we set

aside the impugned order and allow the writ petition in terms of

prayer clause ‘B’ and respondents would grant to her benefits

under the Scheme from 24-07-1998, the date of her

application / affidavit. Rule made absolute in above terms.

( B. U. DEBADWAR, J. ) ( SUNIL P. DESHMUKH, J. )

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