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2010 DIGILAW 1027 (CAL)

Paritosh Goswami v. STATE OF WEST BENGAL

2010-08-20

ASHIM KUMAR BANERJEE, PRASENJIT MANDAL

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Judgment :- Prasenjit Mandal, J. This review application is against the judgment and order dated 02.04.2009 passed by this Hon’ble Division Bench in M.A.T. No.1447 of 2005 and F.M.A. No.897 of 2009 thereby rejecting the appeal. The short case of the applicant is that the applicant joined the freedom struggle at the age of 19 years when he was a student of class – VIII of Sarada Charan Aryan Institution. He took part in the Quit Indian Movement in 1942. For that reason, he was confined to Alipore Central Jail from 25.08.1942 to March, 1943. Thereafter, he suffered an order of externment for a period from March, 1943 to March, 1944. Thereafter, on the advice of the senior leaders, the applicant went to Mainmansingh (now in Bangladesh) where he worked for freedom struggle upto 1946. The applicant applied to the proper authority for pension as per the S.S.S.P. scheme in 1981 and his case was recommended by the State Government in 1981 on the basis of externment suffered by him and supported by the certificate of a veteran freedom fighter. But his case was not considered. Then he moved a writ petition being C.O. No. 8095(W) of 1996. The Hon’ble Court directed the State Government to verify the claim of the applicant. Upon taking into consideration the papers filed by the applicant, the Central Government rejected the claim of the applicant. Thereafter, the applicant filed another writ application being W.P. No. 17135(W) of 2000 and the Hon’ble Court dismissed the writ application holding that the applicant failed to satisfy the conditions for having a pension under the said scheme. Being aggrieved, the applicant preferred an appeal which was also dismissed by the impugned order. Thereafter, the applicant has preferred this review application. Mr. Mukherjee, appearing on behalf of the applicant, submits that at the time of filing the application certain documents namely, the certificate dated 05.03.1993 issued by ex. M.P. Geeta Mukherjee and the letter dated 07.09.1992 of ex. M.P. Ajit Kumar Panja could not be produced before this Hon’ble Court and as such those two letters should be considered now. The two ex. M.Ps. supported the claim of the applicant and the freedom fighter gave the certificate that the applicant was kept behind the bar and he suffered externment for being a freedom fighter and so there is a scope for review of the impugned judgment. The two ex. M.Ps. supported the claim of the applicant and the freedom fighter gave the certificate that the applicant was kept behind the bar and he suffered externment for being a freedom fighter and so there is a scope for review of the impugned judgment. He also contends that the applicant should not suffer for any mistake committed by his conducting lawyer. In fact, those two certificates from the ex. M.Ps. had been obtained long time back; but could not be filed because of wrong advice. So, these two certificates should be considered. He has also contended that Sri Adwaita Charan Dutta is a bona fide freedom fighter and he is the certifier in the instant case and so the applicant should be sympathetically considered. He has also contended that necessary papers from the Alipore Central Jail could not be produced by the applicant because of the fact that the condition of the register was deplorable and some of the pages of the register were eaten by white ants and so all the pages of the register of the concerned jail could not be verified. He contends since nothing was obtained on search with regard to externment, the certificate issued by the freedom fighter should have been the basis of pension. The State Advisory Committee was not proper in rejecting the recommendation of the State Government. So, it is not the case that as per record it could not be decided that the applicant was not in the jail for the period as stated in the application. The concerned pension authority must have acted on the basis of the certificate issued by the freedom fighter. Therefore, there is a scope for review of the judgment. On the other hand, Mr. Chattopadhyay submits that the applicant, in fact, could not produce or discover any new materials in support of his application for review. He could not show any reasonable ground for justification to entertain the application for review. Accordingly, this application for review is meritless and it should be dismissed. After hearing the submission of the learned counsel of both the sides and on perusal of the materials on record and the written statement on behalf of the applicant, we find that the copy of the certificate issued by Sri Adwaita Charan Dutta was filed earlier and it was duly considered in the impugned judgment delivered by us. After hearing the submission of the learned counsel of both the sides and on perusal of the materials on record and the written statement on behalf of the applicant, we find that the copy of the certificate issued by Sri Adwaita Charan Dutta was filed earlier and it was duly considered in the impugned judgment delivered by us. The certificate issued by the State Government recommending the case of the applicant for pension was also placed at the time of disposal of the appeal. Such letter of the State Government dated 24.07.1991 issued by the Deputy / Assistant Secretary to the Government of West Bengal to the Secretary to the Government of India, Ministry of Home Affairs was duly considered by us at the time of passing the impugned judgment. So, these two documents are not new ones but duly considered by us at the time of delivering the impugned judgment. So far as the letters of ex. M.Ps., namely, Geeta Mukherjee and Ajit Kumar Panja, are concerned, we find that these two letters do not amount to certificates from the competent certifiers. The letter of Geeta Mukherjee addressed to the Deputy Secretary in the Ministry of Home Affairs, Government of India was to intervene into the matter so that the pension was released to the applicant as early as possible on the basis of the recommendation made by the State Government in its letter dated 24.07.1991. So, this letter is nothing but a request only from an ex M.P. to the concerned Ministry to take steps. This letter does not indicate that the applicant fulfils the condition to have the pension under the S.S.S.P. scheme. Similar is the position with regard to the letter written by ex. M.P., Ajit Kumar Panja dated 07.09.1992 addressed to the Minister of State for Home Affairs, Government of India, New Delhi. This letter is nothing but a request from an ex. M.P. to the concerned Ministry for sympathetic consideration of the application forwarded by the applicant earlier. This does not support the essential conditions to have the pension under the said scheme. So, these two letters, in our view, are not in any way helping the applicant to get the impugned order reviewed. Mr. M.P. to the concerned Ministry for sympathetic consideration of the application forwarded by the applicant earlier. This does not support the essential conditions to have the pension under the said scheme. So, these two letters, in our view, are not in any way helping the applicant to get the impugned order reviewed. Mr. Mukherjee contends that the documents could not be produced from the Alipore Central Jail because of the fact that some pages of the concerned register was in deplorable condition for being eaten up by white ants. It is not the case that record is not available. So, all the relevant registers could not be verified. In such a situation, the certificate issued by the certifier should be considered as genuine. In this regard, we like to mention that similar submission was forwarded before us at the time of passing the impugned judgment. So, this is not a new fact at all and the entire situation has been clearly analysed at the time of passing the impugned judgment. Mr. Mukherjee has referred to the decision of S.P.V. Ramaswamy Vs. State of Tamil Nadu & Ors. reported in AIR 1992 Madras 320 and he has submitted that as per observations, giving importance to the entry in the convict register alone will not hold good, especially after a gap of nearly 40 years as there is a note that certain pages of the register had been eaten up by white ants. At present, production of the relevant papers or certificate should not be stressed much. With due respect to Mr. Mukherjee, we are constrained to observe that everything was considered in our earlier judgment and upon due consideration of the entire situation, we have held that the applicant has failed to produce the relevant papers in support of his contention to have the pension under the said scheme. If we discuss the same, it would be nothing but a repetition of the earlier judgment. We are, therefore, of the view that the said decision is not applicable in the instant situation. Mr. Mukherjee has also referred to the decision of Rafiq & anr. Vs. Munshilal and Anr. reported in AIR 1981 SC 1400 and submitted that for the lawyer’s default, the applicant should not suffer and so there is a scope for review of the impugned judgment. Mr. Mukherjee has also referred to the decision of Rafiq & anr. Vs. Munshilal and Anr. reported in AIR 1981 SC 1400 and submitted that for the lawyer’s default, the applicant should not suffer and so there is a scope for review of the impugned judgment. This matter has been discussed earlier and in fact, the two letters issued by the two M.Ps., we are of the view, have no material value so far as the prayer of the applicant is concerned. Those are mere requests to the concerned authority to have sympathetic consideration over the matter referred to. We have also considered the page nos.31, 32, 33, 39 60 and 86 of the Paper Book to which our attention was drawn by the learned Advocate for the applicant. The page no.31 is a direction from the under Secretary to the Government of India to the State Government for verification of the claim of Paritosh Goswami from the official record. Page no.32 relates to the earlier order passed by this Hon’ble Court in the writ application bearing C.O. No.8095(W) of 1996 filed by the applicant earlier. Page no.39 is a part of the letter issued by the Director, Government of India, Ministry of Home Affairs to the applicant stating that the name of the applicant has not been traced out in the relevant register and that none of the sufferings, as claimed by the applicant, was confirmed by the evidence from the official records. The records were available but the suffering of the applicant was not proved. Accordingly, the applicant was ineligible for pension and so his pension stands rejected. These are not at all in favour of the applicant but statement of facts as to why the prayer of the applicant for pension under the said scheme was rejected. Page no.60 of the affidavit-in-opposition filed by the State / respondent is nothing but a general observation that the applicant failed to produce any iota of evidence in support of his claim. At the same time, that page no.60 of the P.B. indicates that the authentic official records such as, I.B. index books for open and secret works of the political persons, green lists, Bengal revolutionary books do not disclose any activity of the applicant as a freedom fighter. The page no.86 refers to reply given by the applicant to the affidavit-in-opposition and it is a simple denial statement. The page no.86 refers to reply given by the applicant to the affidavit-in-opposition and it is a simple denial statement. Therefore, the certificate issued by Sri Adwaita Charan Dutta is not enough to allow the prayer of the applicant. In view of the above, we are of the opinion that the application does not, at all, come within the purview or Order 47 Rule 1 of the C.P.C. We hold that the application is meritless. It is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be made available to the learned Advocate for the parties on their usual undertakings. I agree.