New Okhla Industrial Development Authority vs Smt. Rajo Devi

Heard Sri Ramendra Pratap Singh, learned Counsel for review - applicant/Appellant and Sri G.N. Verma, senior advocate assisted by Sri Amit Verma, learned Counsel for Respondent.

This is an application for review/recall of order dated 10.8.2010. Plaintiff - Respondent Smt. Rajo Devi filed Original Suit No. 7 of 1991 Smt. Rajo Devi v. Noida for permanent injunction, which was decreed by V Additional Civil Judge, Ghaziabad vide judgment and order dated 7.7.1993. The said judgment and decree was challenged by NOIDA before this Court by means of First Appeal No. 599 of 1993. Appeal was allowed vide judgment and order dated 5.1.2010 by a Division Bench of this Court consisting of Hon''ble Prakash Chandra Verma, J and Hon''ble Ram Autar Singh, J. The Bench found that the possession of the land in question was taken by NOIDA after payment of compensation to the Plaintiff - Respondent under the award and the matter of enhancement of compensation was pending and, therefore, there was no justification for grant of interim injunction or to protect the possession of the Plaintiff - Respondent. The Appeal was allowed and the judgment and decree passed by the trial Court was set-aside. In the meantime, Plaintiff - Respondent Smt. Rajo Devi also filed a Writ Petition No. 36296 of 2009, which was dismissed with costs quantified at Rs. 25,000/-by another Bench of this Court but the amount of cost was subsequently reduced by the said Bench vide order dated 11.11.2009 to Rs. 10,000/-.

Civil Misc. Correction/Review/Recall Application No. 28210 of 2010 was filed on behalf of Plaintiff - Respondent Smt. Rajo Devi, which was disposed of vide order dated 10.8.2010 the following order was passed:

Heard learned Counsel for the parties. Review application is allowed only to the extent that the cost imposed Rs. 10,000/-is deleted and Respondents shall not be evicted except in accordance with law.

Against the said order dated 10.8.2010, the instant Review Application has been filed by NOIDA.

Since Hon''ble Ram Autar Singh, J. has retired, this matter has been laid before this Court for hearing.

Learned Counsel for the Appellant - applicant submits that costs were imposed by another Bench of this Court while dismissing the writ petition and the said order could not have been reviewed or recalled by this Court in First Appeal. The next submission is that in judgment and order dated 5.1.2010 allowing the First Appeal, this Court has given a specific finding that possession of land in question was taken over by NOIDA after payment of compensation to the Plaintiff - Respondent and, therefore, the Court could not pass a direction in the Review Application that the Respondents shall not be evicted except in accordance with law. Learned Counsel for Plaintiff - Respondent is unable to justify his earlier prayer or the order dated 10.8.2010.

Since the Appeal filed by NOIDA was allowed and judgment and decree passed by learned Civil Judge was set-aside and no cost was imposed in the appeal, there was no question of waiving the cost quantified at Rs. 10,000/-in the writ petition. An order passed in the Writ Petition could not have been reviewed in a Review Application filed in First Appeal. It is also obvious that possession of the land in dispute was taken over by NOIDA after payment of compensation to the Plaintiff - Respondent and, therefore, no injunction could have been granted in favour of the Plaintiff - Respondent to the effect that the Respondents shall not be evicted except in accordance with law, whereas the correct position was that the Respondents had already been evicted in pursuance of acquisition proceedings. Moreover, the relief granted by order dated 10.8.2010 were not even prayed for by learned Counsel for the Respondents in the review application. Consequently, order dated 10.8.2010 is liable to be reviewed and recalled and is accordingly recalled.

Civil Misc. Review/Recall Application No. 255495 of 2010 dated 27.8.2010 filed by NOIDA is allowed.