JUDGMENT
Syed Bashir-Ud-Din, J.
1. The order dated 9.5.2001 of District Judge Budgam in review application No. 60/2000 in terms allowing the Review of Order dated 1.4.2000 and succession certificate dated 10.4.2000, is under challenge in this petition under Sections 103 and 104 of the Constitution of J&K State, corresponding to Articles 226 and 227 of the Constitution of India.
2. One Hilal Ahmad Sr. Grade constable of Police department posted at P/s Parimpora Srinagar died in harness. His mother Sarva Begum moved an application for Succession certificate in respect of the amount due to the deceased as ex-gratia, leave salary, GP Fund and out of Welfare Police Fund and Janta insurance scheme. The District Judge Budgam allowed the application in succession file No. 60/2000 on 1.4.2000 and held Sarva mother of the deceased and Hassena wife of deceased entitled to the amount of Rs. 5, 98, 000/- with interest in the ratio of 3/4 and 1/4 respectively. Besides it is mentioned in the certificate that the mother (Sarva Begum) is entitled to receive family pension sanctioned to the deceased’s family. This order dated 1.4.2000 was allowed by issuance of Succession Certificate on 10.4.2000.
3. Mst. Haseena widow subsequently filed an application for review to claim entitlement to receive pension in place of Sarva Begum the mother. The review application No. 60/2000 allowed by court on 9.5.2001. In place of Sarva Begum deceased wife Mst. Haseena was directed to be treated as person entitled to receive family pension consequent on death of said Hilal Ahmed.
4. The Ld. Counsel for the petitioner submits that the above impugned review order suffers from jurisdictional error in as mush as the District Judge Budgam has no power of review Under J&K Succession Act and the order passed is non-est in the eye of law. The Succession Certificate in respect of the family pension has been issued on compromise. The term family has to be read in the wider context and if so read, the mother is included to be read in the wider context and if so read, the mother is included as the person who is legally entitled to receive the pension. Haseena Bano. Widow cannot receive the pension as she has by her own act disentitled herself to receive the pension.
5. Ld. Counsel for contesting respondent No. 5 opposes and contests the contention and submits that the District Judge has reviewed its order to correct an error apparent on the face of the record. There is no illegality attached to the order. Mst. Haseena as wife of the deceased Sr. Grade constable alone is entitled to the exclusion of deceased’s mother and others to receive the family pension under J&K Family Pension Cum-Gratuity Rules, 1964. This is more so as the deceased’s mother is already receiving family pension of her deceased husband who too happen to be employee of J&K police. She cannot receive two pensions in view of the bar created by the rules.
6. Section 19 (3) of the Succession certificate Act 1920 A.D. (hereafter Act) read as:-
(3) Subject to the provisions of Sub-section (1) and of Orders 46 and 47 and Sections 113 to 115 of the Code of Civil Procedure as applied by Section 141 of that Code, an order of a District Court under this Act shall be final.”
7. The bare reading of the section would show that apart from the appeal provision contained by Sub-section (1) & (2) of Section 19, the Sub-section (3) of the Act as quoted above has applied by incorporation provisions of reference, revision and review of judgment/order as contained in Civil Procedure Code to the proceedings and grant of succession certificate under the J&K Succession Certificate Act. Proceedings and the order under the Act is amenable to revision, reference and Review as would apply in other cases under Section 141 of CPC. If so the review is permissible to the extent in the circumstances as made applicable by the code of Civil Procedure to the proceedings for Succession Certificate Act. After all the proceedings are in a court of Civil jurisdiction.
8. The District Judge seized of the Succession proceedings has allowed the review for the reasons that in the main application for grant of succession certificate there was no prayer made even by mother Sarva Begum about grant of certificate in respect of Family Pension. The Family Pension is governed by J&K Provisions of Family Pension-cum-Gratuity Rules, 1964 (hereafter the Rules).
9. Rule 11-A of the Rules speaks of eligibility of widow or the minors to receive pension under Rule 24 with instruction, specifically provides that other than minor children family pension is not payable and that too on terms of Rule 24 (c), if the claimants himself/herself is. already in receipt of pay/pension. All these facts were not disclosed in the application and proceedings. Apart from the question whether provisions of Succession Certificate Act can be applied or substituted for provisions of Rules providing for and authorizing family pension, the suppression and concealment of above referred facts appear to be the reason for the District Judge to pass the impugned order, impugned Review, which he is empowered to do inter alia under Section 19 (3) of the Succession Certificate Act 1977 (BE)
10. The maintainability of the proceedings under Articles 226 and 227 in the facts and circumstances of this case, is beyond parameters.
11. In Sadhasna Lodh v. National Insurance Co. Ltd. (AIR 2003 SCW 930) the court observed:-
“… Where a statutory right to file an appeal has been provided for it is not open to High Court to entertain a petition under Article 227 of the Constitution, Even if where a remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, Only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution… The supervisory jurisdiction conferred on the High Court under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record., much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision.”
13. In the above view of the matter, the petition is dismissed.
