Ritualistic adherence to the condition of state policy regardless of some of them being impossible of performance, is not the way a welfare state is constitutionally expected to function: Karnataka High Court

A writ of certiorari issued quashing the impugned Endorsement to sanction Freedom Fighter pension to the petitioner and settle all the arrears within a period of six weeks, failing which they shall personally & collectively pay him Rs. 1000/- for the delay of each day brooked as held by the Hon’ble Karnataka High court in the matter of Gundu Rao Desai V. State Of Karnataka, [WP No. 7948 of 2021].

The Facts of the case are as follows that the petitioner’s claims for the Freedom Fighter Pension have been rejected on the ground of endorsement, that he has not produced the affidavits of the two-person who were detained with him because of their participation in the struggle for independence of the country. The petitioner had made a claim for pension on 19.03.1998, except that the file moved from this office table to that for two decades and nothing has happened.

The Ld. AGA appeared for the respondent vehemently opposed the writ petition contending that the requirement of producing a certain document is a matter of state policy that regulates the grant of Freedom Fighter Pension which is structured in the requirement and cannot be flattered.

The Hon’ble Justice Krishna S. Dixit  before the Karnataka High Court, heard the learned counsel and having persuaded the petition paper held that Hon’ble Karnataka High Court is inclined to grant Indulgence in the matter for following reason, “During the freedom struggle , several nationals sacrificed their lives , limbs & liberty and obviously their families is too get affected ; all this happened unseen and unsung; other who survived the struggle and lived after the Dawn of Freedom , need to be protected, presumably they being Central Government and State Government have promulgated Freedom Fighter Pension Schemes; the fulfilment of requirement of such scheme should not be insisted upon mindlessly and impossibly”,  and adhering to the Submission of Ld. Counsel for the Petitioner, the Hon’ble Court took the precedent of E.P Royappa V. State of Tamil Nadu [AIR 1947 SC 555], and stated that, “all the action of the state be legislative or executive should, be animated by reason and justness it is more when the cause of Freedom Fighter who are in late evening of their lives.”

The Hon’ble Court subsequently found that in all civilized Jurisdiction where conditions prescribed by the statues are or became impossible of performance, they are treated either as having complied or their compliance being dispensed with, subject to all just exception, placing reliance on “Maxwell On The Interpretation Of Statues” Twelfth Edition, LexisNexis – Butterworth Wadhawa at page 326 treats the subject under “IMPOSSIBILITY OF COMPLIANCE”, which further implies the enactment that imposes duties upon conditions, when it has not been constructed as conditions precedent to the exercise of jurisdiction, subject to the maxim, lex non cogit ad impossibilia. They are understood as dispensing with the performance of what is prescribed when the performance of it is impossible.

Thus, where an act provided that an appellant should send notice to the respondent of his having entered into a recognizance, in default of which the appeal should not be allowed, it was held that the death of the respondent was not fatal to the appeal, but dispensed with service.

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