BHANU PRATAP SINGH Vs. STATE OF U.P

JUDGEMENT

(1.) HEARD learned counsel for the parties. Miscellaneous Case No.250 of 1981State vs. Tej Narain and others which was a case under Section 30 of Land Acquisition Act for apportionment of compensation was decided by Additional District Judge/Nagar Mahapalika Tribunal, Lucknow on 11.5.1999 on the basis of compromise. Plots in dispute were 991 and 992. In this revision the dispute is confined to plot no. 992. There were three sets of co-sharers of the plot. One was Smt. Prem Kumari the second was Tej Narain and Roop Narain and the third co-sharer was Smt. Prem Lata Thakur. Applicant in this revision claims to be successor of Smt. Prem Lata Thakur who had died during pendency of proceedings before the court below. The reference was decided on 11.5.1999 on the basis of compromise. Smt. Prem Lata Thakur had 25 bigha 18 biswa share in plot no.992. In the compromise it was mentioned that she had sold almost her entire share (24 bigha 19 biswas 13 biswancies) to different persons. Applicant had been substituted in the reference as legal representative of Smt. Prem Lata Thakur. Initially after the death of Smt. Prem Lata Smt. Kanchan Lata had been substituted. Thereafter at the place of Kanchan Lata after her death applicant was substituted. Applicant was not signatory to the compromise on the basis of which the Misc. Case was decided on 11.5.1999. In the order dated 11.5.1999 it is mentioned that apart from the signatories to the agreement no other party was contesting hence proceedings against them were taken ex-parte. Thereafter applicant filed review application before the court below in the form of Misc. Case No.5C of 1999 Bhanu Pratap Singh vs. Tej Narain and others. Additional District Judge, Lucknow through order dated 23.3.2002 dismissed the review petition as not maintainable. The said order has been challenged through this revision.

(2.) THE court below in the impugned order after reciting the facts referred to the Supreme Court Judgment reported in Meera Bhanja vs. Nirmala Kumari Chaudhary A.I.R. 1995 S.C. Page 445, regarding scope of interference in review. One more judgment of the Supreme Court was also mentioned thereafter reference of which is not legible. Thereafter the court below held that review petition was not like an appeal as held by the Supreme Court. In the impugned order the allegation of the applicant that he had been impleaded, he was not signatory to the compromise and he had not been heard before passing the order was not disbelieved. No finding regarding these pleas were given. Learned counsel for the applicant has argued that review petition was quite maintainable. However, learned counsel for the opposite parties has argued that review petition was not maintainable and either the applicant should have filed restoration application or should have challenged the basic order of 1999 through appeal. Learned counsel for the opposite parties has also questioned the maintainability of the revision. Under Order 47 Rule 7 C.P.C. it has been provided that against rejection of review no appeal is maintainable. By virtue of Section 53 Land Acquisition Act C.P.C. applies to the proceedings under Land Acquisition Act. Accordingly, revision is quite maintainable. In this regard reference may be made to Smt. Vidyavati vs. Shri Devi Das A.I.R. 1977 S.C. 397. In the said case review had been allowed. The said order was appealable before District Judge however, instead of filing appeal before District Judge, the aggrieved party filed revision before High Court and Supreme Court held that the revision was maintainable. On the same principle if review is dismissed revision would be maintainable as remedy of appeal is barred by virtue of Order 47 Rule 7 C.P.C. In this regard learned counsel for the applicant has also cited an authority of the Supreme Court reported in Suresh Chandra Nanhorya vs. Rajendra Rajak 2006 (24) L.C.D. 1684 (S.C.). In the said case High Court had allowed the revision without hearing opposite party's counsel. Thereafter review was filed which was dismissed by the High Court as not maintainable. Supreme Court held that review petition was maintainable. A Full Bench authority of Patna High Court in A.I.R. 1955 Patna 370 held that a dismissal in default other than on the ground of failure to appear is open to review and not restoration. In this regard reference may also be made to A.I.R. 1958 Patna 521, A.I.R. 1929 Cal 513, A.I.R. 1981 Karnataka 35 and A.I.R. 1915 Cal 662. Accordingly the review petition was quite maintainable. The court below should have decided the same on merit. If the applicant is party in the proceedings then the proceedings cannot be finally decided on the basis of compromise to which applicant was not signatory and if it has been done then it is open to review.