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2005(5) Supreme 836
Supreme Court of India
(From Bombay High Court)
Arijit Pasayat & B.N. Srikrishna, JJ.
Bhaurao Dagdu Paralkar —Appellant
versus
State of Maharashtra and Ors. —Respondents
Civil Appeal Nos. 5162-5167 of 2005
(Arising out of SLP (C) Nos. 11344-11349/2004)
Decided on 22-8-2005
Counsel for the Parties :
For the Appellant : A.V. Savant, Sr. Advocate, Naresh Kumar, Advocate.
For the Respondents : R.Mohan, Additional Solicitor General, U.U. Lalit, Sr. Advocate, Sanjay V. Kharde, Ms. Chandan Ramamurthi, Hemant Sharma, Manish Sharma, Ms. Sushma Suri, Manoj Swarup, S.S. Shinde, V.N. Raghupathy, T. Mahipal, Uday B. Dube and Kuldip Singh, Advocates.
Held : As noted at the threshold, the genuine freedom fighters deserve to be treated with reverence, respect and honour. But at the same time it cannot be lost sight of that people who had no role to play in the freedom struggle should not be permitted to benefit from the liberal approach required to be adopted in the case of the freedom fighters, most of whom in the normal course are septuagenarians and octogenarians. It baffles one, beyond comprehension, when claim is made by a person who was not even born during the freedom struggle to be a freedom fighter. Learned counsel for the appellant has submitted a list which makes an interesting reading. Some of the beneficiaries were born in 1951 and some in 1955. Accepting claims of such persons to be freedom fighters would be making a mockery of the scheme which is intended for genuine freedom fighter. The approach of the High Court is clearly untenable. Sampling cannot be the method for determining the truth or otherwise of the allegations or claims made. Each case was required to be individually examined. On that score alone, the High Court’s judgment is vulnerable. Allegations made were to the effect that fraud has been practiced. (Para 9)
Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception committed by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would not have been exercised. The misrepresentation must be in relation to the conditions provided in a section on existence or non-existence of which the power can be exercised. But non-disclosure of a fact not required by a statute to be disclosed may not amount to fraud. Even in commercial transactions non-disclosure of every fact does not vitiate the agreement. “In a contract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain. In public law the duty is not to deceive. (Para 13)
Judgment
Arijit Pasayat, J.—Leave granted.
2. When one talks of freedom fighters’ the normal image that comes to one’s mind is a person who had suffered physically and mentally for unshackling chains of foreign rule in our country. The normal reaction when one sees such person is one of reverence, regard and respect. The brave courageous deeds of these person is a distinctive part of India’s fight for freedom. Many persons lost their lives, many were injured and large number of such persons had languished in jails for various periods. The common thread which must have passed through the minds of these people is their sole objective to see that their motherland has a government to its own, free from foreign rule. But these images get shattered when one hears that with a view to gain financially, vague documents have been produced, false claims of participation in the freedom movement have been made. It is a sad reflection on the moral values of the citizens of our country that a large number of cases have surfaced where it has been established that people who were not even born when the freedom fight was on or the country got independence or were toddlers when the country got independence have applied for and managed to get “Sammanpatra”, pensionary and other allied benefits. The appeals at hand deal with such allegations. This is “Asanman” (disrespect) to the whole country and such dishonourable ventures have to be dealt with sternness to send out a message that they are not freedom fighters, but are traitors sullying the name of freedom fight.
3. In these appeals challenge is to the judgment delivered by a Division Bench of the Bombay High Court at Aurangabad Bench by which several writ petitions were disposed of.
4. Writ petitions came to be filed before the High Court challenging the grant of benefits to such phantoms masquerading to be freedom fighters. The basic allegation in the writ petitions was that in the Beed District of Maharashtra, there were large number of persons who had been granted pensionary benefits under the Freedom Fighters’ Pension Scheme (in short the ‘Scheme’). Such writ petitions were purported to have been filed by persons in public interest. In one case the petition was filed by a freedom fighter who claimed that he was surprised to see the number of persons falsely claiming to be freedom fighters. The prayer essentially was to hold detailed enquiry and to cancel the pensionary benefits and for a direction to recover the amounts which had already been paid along with the prayer for initiation of criminal proceedings against the bogus claimants. It was pointed out that in as many as 354 bogus claims have been allowed in the concerned district. Such persons were availing pensionary and other benefits which are to be availed only by genuine freedom fighters. It was highlighted in the petitions that some of the so called freedom fighters were all of tender age and/or were not born when freedom struggle was fought. In respect of others it was alleged that they managed to get freedom fighters’ pension by submitting forged, false and fabricated documents. A Division Bench of the High Court taking cognizance of the petitions and the serious allegations made therein constituted a three-member Enquiry Committee headed by a retired Judge of the Maharashtra Administrative Tribunal and two other members who were practising advocates from the Bead District. They were required to enquiry into the claims of so called freedom fighters. The Committee was constituted by order dated 3.12.2002. Allegations were made that out of 3000 applications filed, 354 were ineligible and the High Power Committee of the State had wrongly recommended payment of pension holding them to be freedom fighters. It is stated that there are two Committees i.e. District Level Committee (District Gaurav Committee) and State Level High Power Committee which are required to examine the claims. The High Court after perusing the 3000 applications r
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