# Nagappa v. Gurudayal Singh reported

- **Citation:** (2013) 2 ILRA 752
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-20
- **Bench:** Rajiv Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nagappa-v-gurudayal-singh-reported-42584
- **Pages:** 5

## Headnote

Constitution of India,Art. 226- Power of
Review-petition decided on basis of
statement
made
by
counselsubsequently found that the statement
in so called compromise itself based
upon fraud by importer nothing preluded
the High Court to exercise powers of
review-to prevent miscarriage of justiceReview application allowed.

Held: Para-15
In view of the aforesaid legal proposition
and the facts narrated hereinabove, there
are
genuine
and
reasonable
grounds
justifying invocation of powers of the review.
Accordingly, the review petition is hereby
allowed. The judgment and order dated
18.8.2008 passed in writ petition No.478
(Cons.) of 2007 Rajkumari and another
versus Dy. Director of Consolidation and
others, is hereby recalled. The writ petition is
restored to its original number and the
interim order is also revived.

Case Law discussed:
AIR 1963 1909; 1999(1) UPLBEC 396-FB

## Text

752 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

17. Although the appellant had
suffered
50%
disablement,
the
documentary evidence shows that he will
require treatment in future. The Tribunal
has not awarded any compensation for
future treatment, which would necessarily
include doctor's fee, cost of medicine,
transportation, diet etc. Keeping in view
the high cost of living, we feel that ends
of justice will be served by awarding a
lump sum amount of Rs. 2 lacs for future
treatment.

18. The award made by the Tribunal
for pain, suffering and trauma and in lieu
of loss of the future prospects is wholly
inadequate. The claimant will neither be
able to work properly nor he will be able
to lead a normal life. His future prospects
are also bleak. Therefore, it is apposite to
award reasonable and just compensation
to the appellant for pain, suffering and
trauma caused due to the accident and
loss of amenities and enjoyment of life
which, in our view, should be Rs.2 lacs.

19. It is true that in the petition filed
by him under Section 166 of the Act, the
appellant had claimed compensation of
Rs. 9,75,000.00 only, but as held in
Nagappa Vs. Gurudayal Singh reported
in (2003) 2 SCC 274, in the absence of
any bar in the Act, the Tribunal and for
that reason any competent Court is
entitled to award higher compensation to
the victim of an accident.

20. Admittedly, there is no evidence
on record to establish the actual income of
the injured/appellant No.2 and as such,
compensation would be awarded on the
basis of notional income of the injured.
Hon'ble Supreme Court in the case of
Laxmi
Devi
and
others
versus
Mohammad Tabbar and another [2008
(2) TAC 394 (SC)] has held that notional
income to be Rs.3,000/- per month after
deduction of 1/3rd personal expenses, the
annual income shall come to Rs.24,000/-.

21. From the perusal of the records,
it
reflects
that
the
age
of
the
injured/appellant No.2, at the time of
accident, was about 39 years and as such,
as per Second Schedule of Section 163 A
of the Motor Vehicles Act, multiplier of
16 is to be applied. Accordingly, applying
the multiplier of 16, the total income shall
be Rs.3,84,000/-. In addition to the said
amount, claimants are also entitled to
Rs.2,00,000/- for future medical expenses
and other expenses.

22. In the result, the impugned
judgment and award dated 31.10.2005 is
modified and it is declared that the
claimants/appellants shall be entitled to
total compensation of Rs.5,84,000.00. He
shall also be entitled to interest @ 6% per
annum from the date of filing the claim
petition till realization. The Oriental
Insurance Company Ltd. is directed to
pay
the
enhanced
amount
of
compensation to the claimant/appellant
with interest @ 6% within a period of
three months from today in the form of a
Demand Draft prepared in their name.

23. The appeal is allowed partly, in
above terms.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.05.2013

BEFORE
THE HON'BLE RAJIV SHARMA, J.
Review Petition No. 190(Cons.) of 2008

Smt. Raj Kumari and Anr. ...Petitioners
Versus
2 All] Smt. Raj Kumari and Anr. Vs. D.D.C. Faizabad
753
D.D.C
Faizabad
...Opposite Paties

Counsel for the Petitioners:
Sri Shiwa Kant Tewari
Sri D.C. Mukherjee and Sri Manoj Kumar
Srivastava

Counsel for the Opposite parties:
Sri Vijay Bahadur Verma

Constitution of India,Art. 226- Power of
Review-petition decided on basis of
statement
made
by
counselsubsequently found that the statement
in so called compromise itself based
upon fraud by importer nothing preluded
the High Court to exercise powers of
review-to prevent miscarriage of justiceReview application allowed.

Held: Para-15
In view of the aforesaid legal proposition
and the facts narrated hereinabove, there
are
genuine
and
reasonable
grounds
justifying invocation of powers of the review.
Accordingly, the review petition is hereby
allowed. The judgment and order dated
18.8.2008 passed in writ petition No.478
(Cons.) of 2007 Rajkumari and another
versus Dy. Director of Consolidation and
others, is hereby recalled. The writ petition is
restored to its original number and the
interim order is also revived.

Case Law discussed:
AIR 1963 1909; 1999(1) UPLBEC 396-FB

(Delivered by Hon'ble Rajiv Sharma, J.)

1. Heard Sri Shiva Kant Tewari,
learned counsel for the petitioners and Sri
Vijay Bahadur Verma, learned Counsel
for the contesting respondents.

2. This Review Petition has been
preferred against the judgment and order
dated 18.8.2008 passed in Writ Petition
No.478 (Cons.) of 2007 Rajkumari and
another
versus
Deputy
Director
of
Consolidation and others, whereby this
Court dismissed the writ petition on the
statement
of
the
Counsel
for
the
contesting respondents that consequent to
compromise,
the
Settlement
Officer
(Consolidation) decided the appeal on
18.1.1994 and Revision preferred against
the same was also dismissed by the
Deputy Director of Consolidation.

3. In the instant Review Petition,
learned
Counsel
for
the
applicants/petitioners contended that on
18.8.2008 when the case was dismissed,
the counsel conducting the case, namely,
Sri L. P. Ojha was suffering from viral
fever and could not attend the Court.
Therefore, the necessary and relevant
facts could not be brought to the notice of
this Court and the Counsel appearing on
behalf of the respondents concealed the
material facts resulting in grave injustice.

4. As regards the error in the
judgment under review, Counsel for the
petitioners
has
submitted
that
the
petitioner No.2, namely, Smt. Saraswati
Devi (now dead) was the owner of the
property who transferred the land through
a sale deed in favour of Smt. Raj Kumari,
petitioner No.1. Therefore, after selling
the property the petitioner No.2 has no
right or authority to execute the alleged
compromise deed dated 18.1.1994 in
favour of contesting opposite parties. It is
said that the opposite parties got executed
a compromise deed dated 18.1.1994
through an impostor and on the said basis,
Settlement
Officer
(Consolidation)
disposed of the appeal in terms of the
compromise vide order dated 18.1.1994.
It has been pointed out that the private
respondents were well aware of the fact
that the petitioner No.1 has become the
owner after execution of sale deed by the
754 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
petitioner
No.2,
but
she
was
not
impleaded as party in appeal.

5. It has been vehemently argued
that on the date when the writ petition was
dismissed, the counsel for the opposite
parties were present, as would be apparent
from the perusal of the impugned
judgment, but they concealed the material
and relevant facts deliberately resulting in
ex parte dismissal of writ petition. It has
been prayed that serious injustice would
be caused if the aforesaid order is
recalled.

6. On behalf of contesting opposite
parties, it has been submitted that land of
chak no.1028 and 1071 situated at village
Kirkhauli,
pargana
Magalsi,
Tehsil
Sohaval, District Faizabad was recorded
in the name of Smt. Saraswati Devi, W/o
Harihar Singh in the basic year. On
30.11.1955, late Harihar Singh executed a
Will in which he stated that the name of
Smt. Saraswati Devi shall be recorded in
the revenue records as Guzara-Dariya
(Heen Hayati) and she shall have no right
to transfer, mortgage, or sell her movable
or immovable property and after her
death, real brother Baksh Singh and his
descendants shall be owners of the
property. On the basis of the aforesaid
Will, Sahab Baksh Singh filed a timebarred objection under Section 9-A (2) of
U.P. Consolidation of Holdings Act,
which was rejected by the Consolidation
Officer,
Maqbara
vide
order
dated
10.9.1993. Thereafter, Sahab Baksh Singh
preferred an appeal where late Smt.
Saraswati Devi entered into compromise
and
the
Settlement
Officer
(Consolidation) disposed of the appeal in
terms of the compromise vide order dated
18.1.1994. Late Smt. Saraswati Devi and
Raj Kumari Devi preferred revision but
the Deputy Director of Consolidation
dismissed it vide judgment and order
dated 28.6.2007. Therefore, there is no
error apparent in the impugned judgment
and the Review Petition is liable to be
dismissed.

7. Before dealing with the merits of
the case, it is relevant to point out that
during pendency of Review Petition, Smt.
Saraswati Devi (petitioner No.2) died
having
no
legal
heirs,
except
the
applicant/petitioner
No.1
Smt
Raj
Kumari, who is the sole legal heir and
representative of petitioner No.2. The
application for substitution in this regard
was allowed vide order dated 10.4.2009.

8. A perusal of the record shows that
petitioners, namely, Smt. Raj Kumari and
Smt. Saraswati Devi filed a writ petition
No. 478 (Cons) of 2007 against the order
dated 28.6.2007 passed by the Deputy
Director of Consolidation in Revision
No.591/484/235, Smt.Saraswati Devi and
others versus Sahab Singh under Section
48 of Uttar Pradesh Consolidation of
Holdings Act arsing out of order dated
18.1.1994 passed by the Settlement
Officer
(Consolidation)
in
Appeal
No.3927 under Section 11 (1) of The
Uttar Pradesh Consolidation Act, Sahab
Singh versus State of U.P. and others by
which
the
Deputy
Director
of
Consolidation dismissed the revision
preferred by the petitioners.

9. In the writ petition, there is a
specific averment that the petitioner No.2
transferred the entire share in chak
No.1071 and 1028 to petitioner No.1 by
executing a sale deed dated 20.11.1992.
The father of respondent nos.3 to 5 raised
objection against the mutation proceeding
initiated on the basis of sale deed. But
2 All] Smt. Raj Kumari and Anr. Vs. D.D.C. Faizabad
755
ultimately, vide order dated 2.11.1994, in
case No.238 under Section 12 of the Uttar
Pradesh Consolidation of Holdings Act,
an order for mutation of name of
petitioner No.1, in place of petitioner
No.2, on the basis of sale deed dated
20.11.1992 was passed. It appears that
Sahab Singh preferred an appeal bearing
No.3927 under Section 11 (1) of the Act
against
an
imaginary
order
dated
10.9.1993 passed by the Consolidation
Officer in TB under Section 9 (A) (2) of
the Act wherein the lower Court's file was
summoned. The officer reported that no
such file is available. However, without
considering the report and on the basis of
compromise, alleged to be executed by
petitioner no.2, the Settlement Officer
(Consolidation) passed the order dated
18.1.1994.

10. Petitioners have taken a specific
plea in the writ petition that compromise
was executed by some impostor and the
Settlement
Officer
(Consolidation),
without verifying the facts and taking into
account the report of Consolidation
Officer, disposed of the appeal in terms of
the compromise. I find force in the
submission advanced by the petitioners
that when late Smt. Saraswati Devi had
executed the sale deed in favour of
petitioner No.1, there was no occasion for
her to enter into a compromise in respect
of the land of which she was no more the
owner.

11. In order to verify the fact, record
of
consolidation
authorities
was
summoned, but the relevant record could
not be produced and a statement was
made by the Standing Counsel that in
view of the provisions of Appendix - I of
U.P. Correction Manual, the records have
been weeded out. Taking the serious view
of the matter, this Court vide order dated
27.4.2010 directed the Consolidation
Officer to conduct an enquiry. In the
supplementary affidavit dated 22.3.2012,
sworn
by
the
Principal
Secretary
(Appointment), who was the erstwhile
Consolidation Commissioner, mentioned
in para 4 that the Deputy Director of
Consolidation, Faizabad Sri R.N. Singh
Yadav
conducted
an
enquiry
in
furtherance of a previous enquiry dated
18.6.2010. In his report, he has stated that
there is no evidence showing the decision
of case No. TB under Section 9 (A) (2) of
the Consolidation of Holdings Act; Ram
Baksh Singh versus Saraswari Devi and
others by the Consolidation Officer on
10.9.1993; rather, in Peshi Bahi (cause
list) another case with the same title
appears
to
have
been
decided
on
20.2.1995. The Deputy Director of
Consolidation has also given his opinion
that the appeal has been filed against the
imaginary and non-existing order dated
10.9.1993 and after getting the appeal
decided
falsely
vide
order
dated
18.1.1994, an entry has been made in the
weeding register in order to conceal the
entire fraudulent and unlawful exercise,
whereas the fact is that no such file of the
Court of Consolidation Officer was
available. The file of the appellate Court
appears to have been weeded out before
expiry of the prescribed period solely with
the intention to cover up the entire forged
and fraudulent act and exercise.

12. Thus, it is quite clear that the
opposite parties did not bring the correct
facts before the Court and on the contrary,
concealed/suppressed the material facts
resulting in miscarriage of justice.

13. At this juncture, I would like to
refer the decision rendered by the Apex
Court in Shivdeo Singh and others Vs..
756 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
State of Punjab and others, AIR 1963
SC 1909, wherein a five Judge Bench of
the
Hon'ble
Supreme
Court
while
examining the power of review of the
High Court, held as under:

"There is nothing in Article 226 of
the Constitution to preclude a High Court
from exercising the power of review
which inheres in every court of plenary
jurisdiction to prevent miscarriage of
justice or to correct grave and palpable
errors committed by it. In entertaining B's
petition the High Court thereby did what
the principles of natural justice required it
to do."

14. A Full Bench of this Court in the
case of Dinesh Kumar Gupta versus
State of U.P. 1999(1) UPLBEC 396-FB
while considering the powers of review of
the High Court, arising out of proceedings
under article 226 of the Constitution, held
as under:-

"We consider appropriate to remind
ourselves as to what is the scope of
review jurisdiction of this Court rising out
of a proceedings under article 226 of the
Constitution of India. This has already
been answered by the Supreme Court
through its two 5 judges, decisions and
accordingly no longer res-integra. In
Shivdeo Singh and other Vs State of
Punjab and others, AIR 1963 SC 1909, it
was held that there is nothing in Article
226 of the Constitution to preclude a High
Court from exercising the power of
review which inheres in very court of
plenary jurisdiction to prevent miscarriage
of justice or to correct grave and palpable
errors committed by it. In State of Gujarat
Vs Sardar Begum and others, AIR 1976 SC
1695, it was held that if a patent error has
crept in due to inadvertence the same could
and should have been suo motu corrected by
the High court in the exercise of its inherent
jurisdiction even after the expiry of the
ordinary period of limitation, if any
prescribed for a review application".

15. In view of the aforesaid legal
proposition
and
the
facts
narrated
hereinabove, there are genuine and
reasonable grounds justifying invocation
of powers of the review. Accordingly, the
review petition is hereby allowed. The
judgment and order dated 18.8.2008
passed in writ petition No.478 (Cons.) of
2007 Rajkumari and another versus Dy.
Director of Consolidation and others, is
hereby recalled. The writ petition is
restored to its original number and the
interim order is also revived.

16. List the writ petition before the
appropriate bench dealing with the
Consolidation matters in the month of
July, 2013 and it shall not be treated as
tied up matter. As the old lady is litigating
since 1993, the matter shall be listed
within first ten cases of cause list.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2013

BEFORE
THE HON'BLE BHARAT BHUSHAN, J.

Criminal Revision No. 251 of 2003

Jai Ram and Ors.
 ...Revisionists
Versus
State of U.P. and Anr. ...Opp. Parties

Counsel for the Revisionists:
Sri A.K. Sachan, Sri Ajay Kumar Srivastava
Sri Anand Priya Singh

Counsel for the Opp. Parties:
A.G.A., Sri D.P. Singh, Sri P.K. Dubey