Rajamma v. Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021/10TH AGRAHAYANA, 1943** ## **R.P.NO.1071 OF 2019** **AGAINST THE JUDGMENT DATED 21.08.2019 IN W.A.NO.1176 OF 2019** **OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/S:** **RAJAMMA, AGED 86 YEARS W/O. CHENNI KUMARAN, CHELAKKAPPALLIL, PADIKACHIRAYIL, KALAVAMKODAM P O, CHERTHALA, KERALA.** **BY ADV K.P.GEETHA MANI** ## **RESPONDENT/S:** - **1 THE UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI, PIN-110003.** - **2 THE DEPUTY SECRETARY TO GOVERNMENT, FREEDOM FIGHTERS' DIVISION, MINISTRY OF HOME AFFAIRS, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI, PIN-110003.** - **3 THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **BY ADV SRI.JAISHANKAR V.NAIR, CGC** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON** **01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.P.NO.1071 OF 2019 -2- ## **O R D E R** ## **Anil K. Narendran, J.** The petitioner has filed this review petition under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, seeking an order to review the judgment of this Court dated 21.08.2019 in W.A.No.1176 of 2019, whereby that writ appeal was allowed by setting aside the judgment of the learned Single Judge dated 24.05.2018 in W.P.(C)No.33947 of 2011, holding that the petitioner is entitled to dependent pension under Swatantrata Sainik Samman Pension Scheme, 1980 (SSS Pension Scheme) only with effect from the date of Ext.P8 order of the 1[st] respondent, i.e., with effect from 04.12.2008. 2. Heard the learned counsel for the petitionerappellant. 3. The learned counsel for the petitioner-appellant would contend that there is an error apparent on the face of record and hence the judgment of this Court dated 21.08.2019 in W.A.No.1176 of 2019 is liable to be reviewed. The facts of the case in **Union of India and another v. Kaushalya Devi [(2007) 9 SCC 525]** was different from the facts of the case R.P.NO.1071 OF 2019 -3- on hand. In **Kaushalya Devi** there was no primary evidence and pension was granted mainly based on the oral testimony of some other detenue. On the other hand, in the case of the petitioner, primary evidence was available. Though the primary evidence (Ext.P1) was not for the required period, that document shows that the petitioner’s husband had undergone detention at Sub Jail prior to the detention in Central Prison. That fact is evident from the report of the Tahsildar (Ext.P6), which has more evidentiary value than the oral statement made by a co-prisoner. That being the position, the principle laid down in the decision in **Kaushalya Devi** has no application. Therefore, in the judgment sought to be reviewed, this Court erred in relying on the decision in **Kaushalya Devi** . 4. The petitioner filed W.P.(C)No.33947 of 2011 under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents herein to sanction and disburse her Dependent Pension under SSS Pension Scheme from the date of the application, i.e., from 19.03.1998 and disburse the arrears thereon with interest. The further relief sought for was a declaration that the petitioner is entitled R.P.NO.1071 OF 2019 -4- to get Dependent Pension under SSS Pension Scheme from the date of application and further direct the respondents to issue necessary orders to that effect. By the judgment dated 24.05.2018 of the learned Single Judge, W.P.(C)No.33947 of 2011 was allowed by directing the respondents to disburse the Dependent Pension to the petitioner from the date of application, within a period of three months. Feeling aggrieved by the said judgment, the respondents filed W.A.No.1176 of 2019 under Section 5 of the Kerala High Court Act, 1958. 5. Before the Division Bench, relying on the judgment in **Union of India v. Radhamony [2005 (4) KLT 27]** , the learned counsel for the appellant-petitioner contended that, the petitioner is entitled for Dependent Pension, with effect from the date of application. Per contra, the learned Central Government Counsel, relying on the judgment of the Apex Court in **Union of India and another v. Kaushalya Devi [(2007) 9 SCC 525]** contended that, if the claim was allowed on the basis of benefit of doubt, the pension should be granted not from the date of application, but from the date of order. R.P.NO.1071 OF 2019 -5- 6. Annexure 2 to SSS Pension Scheme deals with eligibility conditions and evidentiary requirements for SSS Pension. Para. 2.1 of Annexure 2 deals with the documents to be furnished in the case of imprisonment, which reads thus; "2.1 In case of imprisonment: (a) Imprisonment/detention certificate from the concerned jail authority, District Magistrate or the State Govt. indicating the period of sentence awarded, date of admission, date of release, facts of the case and reasons for release. (b) In case records of the relevant period are not available, the secondary evidences in the form of 2 coprisoner certificates (CPC) from freedom fighters who have proven jail suffering of minimum 1 year and who were with the applicant in the jail could be considered provided the State Government/Union Territory Administration concerned, after due verification of the claim and its genuineness, certifies that documentary evidences from the official records in support of the claimed sufferings were not available. In case the certifier happens to be a sitting or Ex. M.P./M.L.A., only one certificate in place of the two is required." 7. In the judgment sought to be reviewed, this Court noticed that, the claim made by the petitioner for Dependent Pension is on the strength of Ext.P1 extract of Register of Undertrial Prisoners in Central Prison, Thiruvananthapuram and R.P.NO.1071 OF 2019 -6- Ext. P6 report of the Tahsildar, Cherthala dated 25.11.1971. As per Ext.P1, late Chenni Kumaran, husband of the claimant had undergone under-trial imprisonment in Central Prison, Thiruvananthapuram from 27[th] Vrischikam 1123 (13.12.1947) to 16.06.1123 (30.01.1948) in connection with P.E.No.10/123 of Special Magistrate, Alleppey. Admittedly, the period covered by Ext.P1 is less than the minimum imprisonment of six months specified in clause (a) of paragraph 3 of the SSS Scheme. In Ext. P6 report of the Tahsildar, it is reported that late Chenni Kumaran was under detention for a period of 10 months. Ext.P6 report cannot be taken as a primary evidence in order to prove a claim for Samman Pension/Dependent Pension under SSS Pension Scheme, in view of the provisions under clause (a) of Para. 2.1 of Annexure 2. 8. In **Puthusseri Valiya Veettil Thambayi Amma v. Union of India and another [2011 (2) KHC 891]** this Court noticed that in **Mukund Lal Bhandari and others v. Union of India and others, [(1993) Supp (3) SCC 2]** the Apex Court held that the payment has to be effected under 'Swatantrata Sainik Samman Pension Scheme', irrespective of whether the R.P.NO.1071 OF 2019 -7- application was accompanied by necessary proof of eligibility or not and the same had to be effected from the date on which the original application was received. The law having been declared by the Apex Court was accordingly relied on by the Division Bench of this Court in **Union of India v. Radhamony, [2005 (4) KLT 27]** by allowing the appeal and overruling the judgment rendered earlier to the contrary, as reported in **Krishnankutty v. Union of India [2003 (1) KLT 21]** . 9. However, in the subsequent decision rendered by the Apex Court in **Union of India and another v. Kaushalaya Devi [(2007) 9 SCC 525]** the Apex Court held that if the claim was allowed 'on the basis of benefit of doubt', the pension should be granted not from the date of application, but from the date of order. If the pension that has been given under the Scheme is on the basis of 'primary evidence', i.e., jail certificate and not on the basis of any secondary evidence of 'co-prisoner's certificate' (CPC) it is not by extending any benefit of doubt, so as to restrict the benefits by giving effect only from the date of the order/Judgment as stipulated by the R.P.NO.1071 OF 2019 -8- Apex Court in **Kaushalaya Devi** . If the suffering is proved by 'primary evidence', the claimant is entitled to have the benefit with effect from the date of the application itself. 10. In the judgment sought to be reviewed, this Court found that, the Dependent Pension under SSS Pension Scheme, which has already been granted to the petitioner by Ext.P8 order, is not on the basis of any primary evidence, but based on secondary evidence. The said fact was not disputed by the learned counsel for the petitioner herein. Therefore, this Court found that the petitioner herein is not entitled for Dependent Pension from the date of application and she is entitled for the same only with effect from the date of Ext.P8 order. Accordingly, W.A.No.1176 of 2019 was allowed, setting aside the judgment in W.P.(C) No.33947 of 2011, holding that the petitioner herein is entitled for Dependent Pension under the SSS Pension Scheme only with effect from the date of Ext.P8 order. 11. In **Thungabhadra Industries Ltd v. Government of Andhra Pradesh [AIR 1964 SC 1372]** the Apex Court held that, review is, by no means an appeal in disguise, R.P.NO.1071 OF 2019 -9- whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors. 12. In **Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC 167]** the Apex Court held that, if the view adopted by the Court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record. 13. In **Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715]** the Apex Court, in the context of the power of review under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 held that, a judgment may be open to review, inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1 of the Code. In exercise of the jurisdiction under Order XLVII, Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited R.P.NO.1071 OF 2019 -10- ' ' purpose and cannot be allowed to be an appeal in disguise . 14. Later, in **Lily Thomas v. Union of India [(2006) 3 SCC 224]** the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 15. In **Anantha Reddy N. v. Anshu Kathuria [(2013) 15 SCC 534]** the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits. 16. In view of the law laid down by the Apex Court in the decisions referred to supra, the review jurisdiction under Order XLVII, Rule 1 of the Code is very limited and unless there is mistake or error apparent on the face of the record, the judgment does not call for review. Further, whilst exercising R.P.NO.1071 OF 2019 -11- such power of review, the Court cannot be oblivious of the provisions contained in Order XLVII, Rule 1 of the Code and that the limits within which the Courts can exercise the power of review have been well settled in a catena of decisions. 17. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, none of the grounds raised in these review petitions fall within the ambit and scope of Order XLVII, Rule 1 of the Code. In the result, the Review Petition fails for the aforesaid reason and the same is accordingly dismissed. **sd/ANIL K. NARENDRAN, Judge** **sd/ANU SIVARAMAN, Judge** bkn/-