Mahamuda Khatun v. The State of Assam and 6 Ors

ORDER Date : 29.03.2023 Heard Mr. F.U. Borbhuiya, the learned counsel appearing on behalf of the petitioner. Mr. S. R. Baruah, the learned counsel appears on behalf of the Director of Pension, Ms. M. Mallik, the learned counsel appears on behalf of the Accountant General (A&E), Mr. N.J. Khataniar, the learned counsel appears for the respondent Nos. 1 and 3, Mr. A. Chaliha, the learned counsel appears on behalf of the Treasury Officer and Mr. S.C. Biswas, the learned counsel appears on behalf of the respondent No. 7.

¶2The instant writ petition was filed by one Mahamuda Khatun(since deceased) claiming to be the first wife of Late Abdul Salem. The case of the petitioner herein is that the respondent authorities have illegally given the family pension to the respondent No. 7 which ought to be given to the petitioner. The prayers in the writ petition are for setting aside and quashing the sanctioning letter of family pension issued in the name of the respondent No. 7; for a mandamus directing and commanding the respondents not to given effect to the sanctioning letter of family pension in the name of the respondent No. 7 as Page No.# 5/6 well also as for a direction that the respondent authorities should release the family pension in favour of the petitioner. In the meantime during the pendency of the writ petition, the petitioner Mahamuda Khatun expired on 7/4/2018. This aspect of the matter was brought to the notice of this Court by the sons of the petitioner by filing an Interlocutory Application being I.A. (C) No.604/2019

¶3In a recent judgment of the Full Bench in the case of Mustt. Junufa Bibi Vs. Mustt. Padma Begum reported in 2022 SCC Online Gau 2000, it has been categorically held that the first entitlement of the family pension would be to the eldest of the widow and upon the demise of the eldest of the widow, the second or such further widow would be entitled to and thereafter only the minor children would be entitled to.

¶4In view of the judgment of the Full Bench even assuming that the respondent No. 7 is the second wife, then also on the admitted death of the petitioner, the respondent No. 7 would be entitled to the family pension. Accordingly, the question of substituting the applicants of I.A.(C) No.604/2019 instead of the petitioner to the present writ petition does not arise as they are not entitled to the relief as sought for in the writ petition. Further as per the provisions of the Assam Service (Pension) Rules, 1969, the respondent No. 7 is now entitled to the family pension and as such the reliefs sought for in the writ petition cannot be granted to the Applicants of I.A.(C) No.604/2019. Consequently the instant writ petition therefore abates.

¶5At this stage, this Court also finds it relevant to take note of a submission of Mr. F.U. Borbhuiya to the effect that the pension being a property, the entitlement of the said pension to the mother of the applicants in I.A.(C) 604/2019 stood devolved upon the death of their mother and as such a direction be given to the respondent No. 7 for the purpose of payment of the Page No.# 6/6 said amount which she had received as family pension during the life time of the mother of the applicants.

¶6Mr. S.C. Biswas, the learned counsel appearing on behalf of the respondent No. 7 submitted that the respondent No. 7 is the only legally wedded wife of Lt. Abdul Salem and as such the question of the mother of the applicants getting any amount does not arise. He further submitted that this is an inter se dispute between two private individuals and as such this Court ought not to exercise any jurisdiction under Article 226 of the Constitution. This Court duly agrees to the submission made by Mr. S.C. Biswas to the effect that the dispute as to whether the applicants in I.A.(C) No. 604/2019 would be entitled to the said amount, would require an adjudication of the facts as to whether the mother of the applicants was the first wife of Lt. Abdul Salem which can only be decided by a forum wherein the facts could be adjudicated.

¶7Considering the above, this court therefore while disposing the writ petition as abated disposes off the interlocutory application by holding that the applicants are not entitled to be substituted to the writ petition on the grounds and reasons mentioned supra. However, the Applicants of I.A.(Civil) No. 604/2019 shall be ate liberty to take resort to such remedy as available under law for recovery of the amount from the respondent No. 7, if deemed fit.

¶8Accordingly, both the writ petition as well as the interlocutory application stand disposed off. JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010262432017 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1464/2017o MAHAMUDAoKHATUNo W/OoLT.oABDUSoSALAMoR/OoVILL-oALAMKHANIoP.O.oSINGARIAoBAZARoP.S.o NILAMBAZARoDIST.oKARIMGANJ,oASSAM VERSUSo THEoSTATEoOFoASSAMoando6oORS.o REP.oBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM,o EDUCATIONoELEMENTARYoDEPARTMENT,oDISPUR,oGUWAHATI-6. 2:THEoDIRECTORoPENSION oASSAM oHOUSEFEDoCOMPLEX oGUWAHATIo-6. 3:THEoDISTRICToELEMENTARYoEDUCATIONoOFFICER oKARIMGANJ oASSAM 4:THEoTREASURYoOFFICER oKARIMGANJ oDIST.oKARIMGANJ oASSAM 5:THEoACCOUNTANToGENERAL oASSAM oBELTOLA oGUWAHATI-27 Page No.# 2/6 6:THE BRANCH MANAGER UNITED BANK OF INDIA NILAMBAZAR BRANCH P.S. NILAMBAZAR DIST. KARIMGANJ 7:MUSSTT. MASNURUN NESSA @ MASNURN NESSA W/O LT. ABDUS SALAM VILL- ALAMKHANI P.S. NILAMBAZAR DIST. KARIMGANJ ASSA Advocate for the Petitioner : MR.R A CHOUDHURY Advocate for the Respondent : SC, ELEMENTARY EDUCATION Linked Case : I.A.(Civil)/604/2019 AZHAR HUSSAIN AND 3 ORS. S/O- LATE ABDUS SALAM AND LATE MAHAMUDA KHATUN @ MAHMUDA KHATUN R/O- VILL.- ALAMKHANI P.O.- SINGARIA BAZAR P.S.- NILAM BAZAR DIST.- KARIMGANJ PIN0 788719 2: ASHRAF HUSSAIN S/O- LATE ABDUS SALAM AND LATE MAHAMUDA KHATUN @ MAHMUDA KHATUN R/O- VILL.- ALAMKHANI P.O.- SINGARIA BAZAR P.S.- NILAM BAZAR DIST.- KARIMGANJ PIN0 788719 3: ALTAF HUSSAIN S/O- LATE ABDUS SALAM AND LATE MAHAMUDA KHATUN @ MAHMUDA KHATUN PageoNo.#o3/6 R/O-oVILL.-oALAMKHANI oP.O.-oSINGARIAoBAZAR oP.S.-oNILAMoBAZAR oDIST.-oKARIMGANJ oASSAM oPINtio788719 o4:oABDUSoSHAHID S/O-oLATEoABDUSoSALAMoANDoLATEoMAHAMUDAoKHATUNo@oMAHMUDAo KHATUNo R/O-oVILL.-oALAMKHANI oP.O.-oSINGARIAoBAZAR oP.S.-oNILAMoBAZAR oDIST.-oKARIMGANJ oASSAM oPINtio788719 oVERSUS THEoSTATEoOFoASSAMoando6oORS. REP.oBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM oEDUCATIONoELEMENTARYoDEPARTMENT oDISPUR oGUWAHATI-6. 2:THEoDIRECTORoOFoPENSION oHOUSEFEDoCOMPLEX oGUWAHATIo-6. o3:THEoDISTRICToELEMENTARYoOFFICER KARIMGANJ oASSAM oPIN-o788710 o4:THEoTREASURYoOFFICER KARIMGANJ oDIST.oKARIMGANJ oASSAM o5:THEoACCOUNTANToGENERAL oBELTOLA oGUWAHATI-27 o6:THEoBRANCHoMANAGER UNITEDoBANKoOFoINDIA oNILAMBAZARoBRANCH oP.S.oNILAMBAZAR Page No.# 4/6 DIST. KARIMGANJ 7:MUSSTT. MASNURUN NESSA @ MASNURN NESSA W/O LT. ABDUS SALAM VILL- ALAMKHANI P.S. NILAMBAZAR DIST. KARIMGANJ PIN- 788719 ------------ Advocate for : MR H R A CHOUDHURY Advocate for : GA ASSAM appearing for THE STATE OF ASSAM and 6 ORS. BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH