Shishir Kumar, J.:—Heard learned counsel for the parties.
This application has been filed by the defendants/respondents for review of final judgment passed by this Court dated 28.05.2010
Sri Anand Prakash Srivastava, learned counsel for the U.P Avas Vikas Parishad has submitted that Sri Chaudhary, Senior Advocate, will appear in the matter and will argue the review application on merits.
Admittedly, the appeal was heard in presences of both the parties at length and after noticing each and every argument, made on behalf of the parties, the judgment was passed allowing the appeal vide judgment and order dated 28.05.2010 It is settled in law that review application can be filed and argued by the same counsel, who appeared at the time when the case was argued and decided on merits. No other counsel can submit before the Court regarding the fact whether any argument or question raised by him has been considered by the Court or not. Further, from the judgment dated 28.05.2010, it appears that the question for consideration before the Court was regarding approval of the auction of the land by the competent authority. Though, from the record it appears that a specific question was asked by the Court and it was also argued that whether in view of Section 106 of the Evidence Act, the fact relating to delegation of power to the Assistant Housing Commissioner was especially within the knowledge of the respondent authority of the Board. The document in this regard were with them, but the original documents were not produced before the court below by the Housing Commissioner and the concerned authorities of the Board, though pleaded by the plaintiff/appellant that the Assistant Housing Commissioner himself had admitted before the court below that he was empowered to hold the auction and execute the contract/agreement. Thus, he had allotted three shops and executed contract/agreement under the authority delegated to him by the Board as Assistant Housing Commissioner, Bareilly. The claim of the highest bidder, like the plaintiff/appellant, who has offered the highest bid and deposited the amount asked for by the Board immediately after the auction proceedings were concluded, ought not to have been thrown out like this as it has been done in the present case. A finding has been recorded that this Court has noted that through out the proceeding right from 1977 till date an interim order was available to the plaintiff/appellant and as per learned counsel for the plaintiff/appellant, the plot in question is still lying vacant. The main thrust of the argument made was regarding the delegation of power to the Assistant Housing Commissioner regarding approval of the auction. The admission of the Assistant Housing Commissioner in his statement-in-chief as DW-1 that he had the authority to finalize and conclude the auction has been completely ignored by the lower court causing serious pre judice to the rights of the appellant which has been established upon the fall of hammer. After noticing all these things, the Court has allowed the second appeal and the order passed by the court below was set aside.
In view of the aforesaid facts and circumstances, in my opinion, such review application, filed on behalf of respondents, cannot be entertained and allowed. Therefore, this application for review is dismissed.
No order as to costs.