# Sohan v. State Of U.P

- **Citation:** (2016) 5 ILRA 148
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-25
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sohan-v-state-of-u-p-43778
- **Pages:** 12

## Headnote

Satish Tandon, U.S. Awasthi
.................................

Held:

Specific performance of contract based on arbitration/settlement is enforceable where the
agreement is proved, consideration is established, and the plaintiff has shown continuous readiness and
willingness to perform his part of the contract.

A family settlement/award arrived at through mediation, even if not a formal decree of court, is
binding upon the parties when acted upon and supported by part performance.

Joint family property (HUF property) can validly be the subject matter of a contract for sale by the Karta,
and such contract is enforceable if entered into for legal necessity or benefit of the family.
5 All. Sohan Vs State Of U.P.

149
Mere subsequent denial or resiling from an agreement, after accepting substantial consideration, does
not invalidate the contract nor disentitle the plaintiff from relief of specific performance.

Plaintiff's suit for specific performance was rightly decreed, as defendants failed to establish any legal
infirmity in the agreement or award, whereas the plaintiff proved payment of consideration and entitlement.

Dismissal of the connected suit challenging the agreement/award was justified, as the defendants
could not disprove the arbitration/settlement nor establish fraud, coercion, or illegality.

Equitable relief under the Specific Relief Act was correctly exercised in favour of the plaintiffs,
considering long-standing family arrangement, part performance, and balance of equities.

Case Law discussed:

The judgment discusses and applies principles laid down in the following categories of precedents:

On Specific Performance
Readiness and willingness under Section 16(c), Specific Relief Act
Discretion of court under Sections 20 & 21 (pre-amendment)

On Family Settlement / Arbitration
Law relating to binding nature of family settlements
Enforceability of arbitral/mediated awards acted upon by parties

On Hindu Undivided Family (HUF) Property
Powers of Karta to alienate joint family property
Sale for family necessity or benefit

On Effect of Part Performance
Acceptance of consideration and possession as strong corroborative evidence

On Civil Appeals under Section 96 CPC
Scope of interference with findings of fact
Presumption in favour of trial court's decree unless perversity shown

## Text

148 INDIAN LAW REPORTS ALLAHABAD SERIES
arising out of Case Crime No. 223 of 2012, under Sections 363, 366 IPC, Police Station Alambagh,
District Lucknow are sustained. Consequently, the finding of impugned conviction and imposition
of sentence recorded by the trial court is set aside.

29. In the result, the appeal succeeds and is allowed. Appellant is accordingly found not guilty
of charges under Sections 363, 366 IPC under aforesaid crime number and he is acquitted of the
same.

30. In this case, the appellant is in jail. He be set free forthwith, if he is not wanted in
connection with any other case after compliance of Section 437A Cr.P.C.

31. Let a copy of this order be certified to the trial court for its intimation and necessary
follow-up action.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2016

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.

First Appeal No.- 528 Of 1983

Sohan ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
J.C. Srivastava, Baleshwer Verma, J.S. Srivastava, N. Lal, P.K.S. Paliwal

Counsel for the Respondent:
Satish Tandon, U.S. Awasthi
.................................

Held:

Specific performance of contract based on arbitration/settlement is enforceable where the
agreement is proved, consideration is established, and the plaintiff has shown continuous readiness and
willingness to perform his part of the contract.

A family settlement/award arrived at through mediation, even if not a formal decree of court, is
binding upon the parties when acted upon and supported by part performance.

Joint family property (HUF property) can validly be the subject matter of a contract for sale by the Karta,
and such contract is enforceable if entered into for legal necessity or benefit of the family.
5 All. Sohan Vs State Of U.P.

149
Mere subsequent denial or resiling from an agreement, after accepting substantial consideration, does
not invalidate the contract nor disentitle the plaintiff from relief of specific performance.

Plaintiff's suit for specific performance was rightly decreed, as defendants failed to establish any legal
infirmity in the agreement or award, whereas the plaintiff proved payment of consideration and entitlement.

Dismissal of the connected suit challenging the agreement/award was justified, as the defendants
could not disprove the arbitration/settlement nor establish fraud, coercion, or illegality.

Equitable relief under the Specific Relief Act was correctly exercised in favour of the plaintiffs,
considering long-standing family arrangement, part performance, and balance of equities.

Case Law discussed:

The judgment discusses and applies principles laid down in the following categories of precedents:

On Specific Performance
Readiness and willingness under Section 16(c), Specific Relief Act
Discretion of court under Sections 20 & 21 (pre-amendment)

On Family Settlement / Arbitration
Law relating to binding nature of family settlements
Enforceability of arbitral/mediated awards acted upon by parties

On Hindu Undivided Family (HUF) Property
Powers of Karta to alienate joint family property
Sale for family necessity or benefit

On Effect of Part Performance
Acceptance of consideration and possession as strong corroborative evidence

On Civil Appeals under Section 96 CPC
Scope of interference with findings of fact
Presumption in favour of trial court's decree unless perversity shown

(Delivered by Hon'ble Surya Prakash Kesarwani, J.)

1. Heard Sri Y.D. Sharma, learned counsel for the applicant/ appellant and Sri Shivam Yadav,
learned counsel for the respondent on Delay Condonation Application No.123032 of 2014 and
Civil Misc. Recall Application No.123034 of 2014, Delay Condonation Application No.351666 of
2011 and Modification Application No.351669 of 2011, Delay Condonation Application No.4846
of 2015 and Civil Misc. Review Application No.4845 of 2015.

2. As per memorandum of appeal, this appeal was preferred by the claimant appellant on the
following grounds:

"1. Because the learned District Judge has erred in not awarding the compensation at
the rate of Rs.10/- per square yard or Rs.30,250/- per bigha.
150 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Because the learned District Judge has committed error of law in not treating the sale
deeds Ex.1 to Ex.7 filed by the claimant as exemplar sale deeds. The said deeds were exemplar sale
deeds and should have been relied upon in assessing the amount of compensation payable to the
appellant.

3. Because it is settled by the decision of the Supreme Court that even if a small parcel of
land is sold at a particular rate and thereafter the rest of the plot is acquired, the compensation
should be given at the rate at which the small parcel of land had been sold earlier.

4. Because the learned District Judge has acted illegally in ignoring the fact that the
compensation of land acquired by Noida in the adjoining village Raghunathpur had been
awarded by the Special Land Acquisition Officer, Ghaziabad vide his award dated 28.09.1978 at
the rate ranging between Rs.12,924.65 and Rs.24,450=53 per bigha. This fact furnished good
exemplar for awarding the compensation to the appellant at the rate of Rs.10/- per square yard.

5. Because the learned District Judge has not considered the fact that the land being very
near to Delhi and a number of coloneys and Industries existing near the land acquired, the land
has a great potential value as a building site and as such compensation should have been awarded
at the rate claimed by the appellant.

6. Because having held that the land acquired should be treated as potential building
site, the learned District Judge has grossly erred in not awarding the compensation at the rate of
Rs.10/- per square yard or Rs.30,250/- per bigha."

3. The appeal was allowed and the relief as prayed was granted by this court by order
dated 29.03.2008 as under:

"Heard Shri P.K.S. Paliwal learned counsel for the appellant and Sri U.S. Awasthy
learned counsel for NOIDA respondent No.2 and learned standing counsel for respondent No.1.

This appeal is directed against judgment award and decree dated 27.02.1982 given by
District Judge, Ghaziabad in L.A. Reference No.157 of 1977. The said reference was decided along
with 5 other references including L.A. Reference No.160 of 1977. The judgment in L.A. Reference
No.160 of 1977 was challenged through first appeal No.83 of 1983 which has been allowed by me
today holding that claimants-appellants are entitled to the compensation taking the market value of
their acquired land at the relevant time to be Rs.30250/- per bigha.

For the reasons disclosed in the judgment of first appeal No.83 of 1983, this appeal is
also allowed. Impugned judgment is modified and it is held that appellants are entitled to the
compensation taking the market value of their acquired land at the relevant time to be Rs.30250/-
per bigha or Rs.10/- per sq.yd. along with 15% solatium and 6% interest."
5 All. Sohan Vs State Of U.P.

151

4. Learned counsel for the applicant/ appellant submits that Section 23(2) of the Land
acquisition Act,1894, was amended by Act 68 of 1984. The acquisition was made by notification
under Section 4 of the Act dated 30.04.1976. Possession was taken on 21.07.1976. The award was
passed on 08.03.1977. The reference was decided by the court of District Judge, Ghaziabad by
judgment dated 27.02.1982. Therefore, the applicant/ appellant was entitled for solaltium as per
amended provision of Section 23-(2) of the Act, which was not granted by this court in the order
dated 29.03.2008. Consequently, the aforesaid order dated 29.03.2008 deserves to be modified/
recalled/ reviewed.

5. In support of his submissions, he relies upon decisions of Hon'ble Supreme Court in the
case of M/s Arti Spinning Mills Etc. Etc. Vs. State of Haryana and another, 2016 (2) Supreme
395 (paras-3 to 6), Mehrawal Khewaji Trust (Regd.), Faridkot Vs. State of Punjab and others,
2012 (4) Supreme 66 (paras-6, 13 and 15) and New India Assurance Co. Ltd. Vs. Hilli
Multipurpose Cold Storage Pvt. Ltd., 2016 (1) Supreme 319 (para-19).

6. No other point has been argued on the aforesaid applications by learned counsel for the
applicant/ appellant.

7. Sri Shivam Yadav, learned counsel for NOIDA- respondent No.2 submits that the
modification/ review/ recall applications are wholly misconceived and the review/ recall of the
order dated 29.03.2008 being sought by the applicant/appellant is totally beyond scope of Order
XLVII Rule 1 of C.P.C. as well as settled principles of review. He submits that Section 23-(2) of
the Act was amended prospectively and the benefit of this provision is not at all applicable to
acquisition already completed and the award given, in view of Section 30(2) of the Amending Act
1984. He submits that even if a different view on merit has been taken in another decision, that
cannot be made a ground for review of the order/ judgment dated 29.03.2008, which was passed on
merit after hearing the parties whereby the appeal was allowed. He submits that whatever relief was
sought by the appellant was granted by the High Court by order dated 29.03.2008 and as such there
is no question of modification/ recall/ review of the order.

8. I have carefully considered the submissions of the learned counsel for the parties.

DISCUSSION AND FINDINGS

Modification Application:-

9. Undisputedly, the first appeal was heard on merit and the relief as sought in the appeal by
the appellant was granted by judgment dated 29.03.2008. It is not disputed by the applicant/
appellant that he was well aware of the aforesaid judgment. However, Modification Application
No.351669 of 2011 was filed on 25.11.2011 for modification of the judgment dated 29.03.2008 on
the ground that in First Appeal No.548 of 2001, a higher compensation of Rs.28.12 per square yard
has been granted by a Division Bench by order dated 18.01.2011.
152 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The aforesaid modification application has been filed along with a delay condonation
application but it is not supported by any affidavit. Chapter XI Rule 12 of the Allahabad High
Court Rules (hereinafter referred to as 'the Rules') provides that the application under Section 5 of
the Limitation Act for condonation of delay shall be supported by an affidavit setting out in the
form of a narrative the material facts and circumstances of the case including the date on which the
applicant/ appellant relies. The delay of about three years has not been explained at all. Under the
circumstances, the delay condonation application filed for condonation of delay in filing the
modification application, is hereby rejected in the absence of any explanation for delay.

Recall Application:-

11. The Delay Condonation Application No.123032 of 2014 for condonation of delay in filing
the Recall Application was submitted by the applicant/ appellant on 01.04.2014 after more than
six years of the judgment dated 29.03.2008. A single affidavit has been filed in support of delay
condonation application as well as recall application which is not as per Chapter XI Rule 12 of the
Rules. In the aforesaid common affidavit, the applicant/ appellant has not explained the delay in
filing the recall application even though he was well aware of the judgment dated 29.03.2008 and
had earlier filed a modification application on 25.11.2011. In paragraph-7 of the affidavit, the
applicant has merely stated that he could not file the recall application within time because he was
not well versed of the judgment of Division Bench of this court and the judgments of Apex Court
and other farmers whose lands were acquired, had got excess compensation. This is totally false
inasmuch as in the affidavit filed in support of the above noted modification application, the
applicant has given the same details of various judgments in paragraphs-3 to 5 and taken the same
grounds for modification in paragraphs 3 to 7 of the affidavit. No other explanation has been
offered by the applicant for condonation of delay in filing the recall application. Thus, in the
absence of any proper explanation for delay in filing the recall application, the delay cannot be
condoned and consequently, delay condonation application deserves to be rejected and is hereby
rejected.

Review Application

12. The Delay Condonation Application No.4846 of 2015 for condonation of delay in filing
the review application, was filed on 13.01.2015, i.e. after about seven years of the judgment dated
29.03.2008. In the affidavit filed in support of delay condonation application, the only explanation
has been offered by the applicant in paragraph-2 that due to wrong advice of the advocate of the
District Court, he could not file review application within time. The explanation offered is wholly
false on the very face of it, inasmuch as the applicant has earlier filed modification application in
the year 2011 and thereafter, filed a recall application in the year 2014. Both these applications
were filed by the applicant through the same counsel who has filed review application. There is no
allegation that any wrong advice was given to him by the High Court counsel or those applications
were filed by him on the advice of the District Court counsel. That apart, there is absolutely no
explanation for delay in filing the review application. Consequently, in the absence of any proper
5 All. Sohan Vs State Of U.P.

153
explanation for delay, the delay condonation application deserves to be rejected and is hereby
rejected.

13. Since above noted three delay condonation applications for condonation of delay in filing
the modification, recall and review applications respectively have been rejected and as such the
above noted modification, recall and review applications are also rejected.

Petition filed on the basis of judgment in another case- Whether proper explanation for
delay or ground for review:-

14. In the Rup Diamonds Vs. Union of India, 1989 (2) SCC 356 (para-8) Hon'ble Supreme
Court laid down the law that petitioners were not vigilant but were content to be dormant and chose
to sit on the fence till somebody else's case came to be decided, then their case cannot be
considered on the analogy of one where a law had been declared unconstitutional and void by a
court, so as to enable persons to recover monies paid under the compulsion of a law later so
declared void.

15. In the case of State of Karnataka Vs. S.M. Kotrayya, (1996) 6 SCC 267, while
considering the provisions of limitation under Section 21 of the Central Administrative Tribunal
Act, 1985, Hon'ble Supreme Court held that the explanation offered was that the applicants/
petitioners came to know of the relief granted by the Tribunal in August 1989 and that they filed
the petition immediately thereafter, is not a proper explanation at all. What was required of them to
explain under sub-sections (1) and (2) of Section 21 was as to why they could not avail of the
remedy of redressal of their grievances before the expiry of the period prescribed under sub-section
(1) or (2). It was held that the Tribunal was wholly unjustified in condoning the delay.

16. In the case of State of Orrisa Vs. Mamta Mohanty, 2011 (3) SCC 436 (para-54),
Hon'ble Supreme Court rejected the delay condonation application holding where the petitioner
approached the Court after coming to know of the relief granted in a similar case as the same
cannot furnish a proper explanation for delay and laches.

17. In the case of Mafatalal Industries Ltd. vs. Union Of India, 1997 (5) SCC 536 (para79), nine Judges Constitution Bench of Hon'ble Supreme Court, held as under:

"79.We may now consider a situation where a manufacturer pays a duty
unquestioningly - or he questions the levy but fails before the original authority and keeps quiet.
It may also be a case where he files an appeal, the appeal goes against him and he keeps quiet. It
may also be a case where he files a second appeal/revision, fails and then keeps quiet. The orders
in any of the situations have become final against him. Then what happens is that after a year,
five years, ten years, twenty years or even much later, a decision is rendered by a High Court or
the Supreme Court in the case of another person holding that duty was not payable or was
payable at a lesser rate in such a case. (We must reiterate and emphasize that while dealing with
this situation we are keeping out the situation where the provision under which the duty is levied is
154 INDIAN LAW REPORTS ALLAHABAD SERIES
declared unconstitutional by a court; that is a separate category and the discussion in this
paragraph does not include that situation. In other words, we are dealing with a case where the
duty was paid on account of misconstruction, misapplication or wrong interpretation of a provision
of law, rule, notification or regulation, as the case may be.) Is it open to the manufacturer to say
that the decision of a High Court or the Supreme Court, as the case may be, in the case of
another person has made him aware of the mistake of law and, therefore, he is entitled to refund
of the duty paid by him? Can he invoke Section 72 of the Contract Act in such a case and claim
refund and whether in such a case, it can be held that reading Section 72 of the Contract Act along
with Section 17 (1)(c) of the Limitation Act, 1963, the period of limitation for making such a claim
for refund, whether by way of a suit or by way of a writ petition, is three years from the date of
discovery of such mistake of law? Kanhaiya Lal is understood as saying that such a course is
permissible. Later decisions commencing from Bhailal Bhai have held that the period of
limitation in such cases is three years from the date of discovery of the mistake of law. With the
greatest respect to the learned Judges who said so, we find ourselves unable to agree with the
said proposition. Acceptance of the said proposition would do violence to several well accepted
concepts of law. One of the important principles of law, based upon public policy, is the sanctity
attaching to the finality of any proceeding, be it a suit or any other proceeding. Where a duty has
been collected under a particular order which has become final, the refund of that duty cannot be
claimed unless the order (whether it is an order of assessment, adjudication or any other order
under which the duty is paid) is set aside according to law. So long as that order stands, the duty
cannot be recovered back nor can any claim for its refund be entertained. But what is happening
now is that the duty which has been paid under a proceeding which has become final long ago -
may be an year back, ten years back or even twenty or more years back - is sought to be recovered
on the ground of alleged discovery of mistake of law on the basis of a decision of a High Court or
the Supreme Court. It is necessary to point out in this behalf that for filing an appeal or for
adopting a remedy provided by the Act, the limitation generally prescribed is about three months
(little more or less does not matter). But according to the present practice, writs and suits are being
filed after lapse of a long number of years and the rule of limitation applicable in that behalf is
said to be three years from the date of discovery of mistake of law. The incongruity of the situation
needs no emphasis. And all this because another manufacturer or assessee has obtained a decision
favourable to him. What has indeed been happening all these years is that just because one or a
few of the assessees succeed in having their interpretation or contention accepted by a High Court
or the Supreme Court, all the manufacturers/assessees all over the country are filing refund claims
within three years of such decision, irrespective of the fact that they may have paid the duty, say
thirty years back, under similar provisions - and their claims are being allowed by courts. All this
is said to be flowing from Article 265 which basis, as we have explained hereinbefore, is totally
unsustainable for the reason that the Central Excises Act and the Rules made thereunder including
Section 11-B /Rule 11 too constitute "law" within the meaning of Article 265 and that in the face of
the said provisions - which are exclusive in their nature - no claim for refund is maintainable
except of law which is violated by permitting the above situation is the sanctity of the provisions of
the Central Excises and Salt Act itself. The Act provides for levy, assessment, recovery, refund,
appeals and all incidental/ancillary matters, Rule 11 and Section 11-B, in particular, provide for
refund of taxes which have been collected contrary to law, I.e., on account of a misinterpretation or
5 All. Sohan Vs State Of U.P.

155
misconstruction of a provision of law, rule, notification or regulation. The Act provides for both the
situations represented by Sections 11-A and 11-B. As held by a seven Judge Bench in Kamala Mills
following the principles enunciated in Firm & Illuri Subbayya Chetty the words "any assessment
made under this Act" are wide enough to cover all assessments made by the appropriate authorities
under the Act whether the assessments are correct or not and that the words "an assessment made"
cannot mean an assessment properly and correctly made. It was also pointed out in the said
decision that the provisions of the Bombay Sales Act clearly indicate that all questions pertaining
to the liability of the dealer to pay assessment in respect of their transactions are expressly left to
be decided by the appropriate authorities under the Act as matters falling within their jurisdiction.
Whether or not a return is correct and whether a transaction is exigible to tax or not are all
matters to be determined by the authorities under the Act. The argument that the finding of the
authority that a particular transaction is taxable under the Act is a finding on a collateral fact and,
therefore, resort to civil court is open, was expressly rejected and it was affirmed that the whole
activity of assessment beginning with the filing of the return and ending with the order of
assessment falls within the jurisdiction of the authorities under the Act and no part of it can be said
to constitute a collateral activity not specifically or expressly included in the jurisdiction of the
authorities under the Act and no part of it can be said to constitute a collateral activity not
specifically or expressly included in the jurisdiction of the authorities under the Act. It was
clarified that even if the authority under the Act holds erroneously, while exercising its jurisdiction
and powers under the Act that a transaction is taxable, it cannot be said that the decision of the
authority is without jurisdiction. We respectfully agree with the above propositions and hold that
the said principles apply with equal force in the case of both the Central Excises and Salt Act and
the Customs Act. Once this is so, it is ununderstandable how an assessment/adjudication made
under the Act levying or affirming the duty can be ignored because some years later another
view of law is taken by another court in another person's case. Nor is there any provision in the
Act for reopening the concluded proceedings on the aforesaid basis. We must reiterate that the
provisions of the Central Excise Act also constitute "law" within the meaning of Article 265 and
any collection or retention of tax in accordance or pursuant to the said provisions is collection or
retention under "the authority of law" within the meaning of the said article. In short, no claim for
refund is permissible except under and in accordance with Rule 11 and Section 11-B. An order or
decree of a court does not become ineffective or unenforceable simply because at a later point of
time, a different view of law is taken. If this theory is applied universally, it will lead to
unimaginable chaos. It is, however, suggested that this result follows only in tax matters because
of Article 265. The explanation offered is untenable, as demonstrated hereinbefore. As a matter of
fact, the situation today is chaotic because of the principles supposedly emerging from Kanhaiya
Lal and other decisions following it. Every decision of this Court and of the High Courts on a
question of law in favour of the assessee is giving rise to a wave of refund claims all over the
country in respect of matters which have become final and are closed long number of years ago.
We are not shown that such a thing is happening anywhere else in the world. Article 265 surely
could not have been meant to provide for this. We are, therefore, of the clear and considered
opinion that the theory of mistake of law and the consequent period of limitation of three years
from the date of discovery of such mistake of law cannot be invoked by an assessee taking
advantage of the decision in another assessee's case. All claims for refund ought to be,l and ought
156 INDIAN LAW REPORTS ALLAHABAD SERIES
to have been, filed only under and in accordance with Rule 11/ Section 11-B and under no other
provision and in no other forum. An assessee must succeed or fail in his own proceedings and the
finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just
because in another assessee's case, a similar point is decided in favour of the
manufacturer/assessee. (See the pertinent observations of Hidayatullah, C.J. In Tilokchand
Motichand extracted in para 46.) The decisions of this Court saying to the contrary must be held
to have been decided wrongly and are accordingly overruled herewith." (Emphasis supplied by
me)

18. Thus, the sole ground taken by the applicant/ appellant in modification, recall and review
applications on the basis of alleged subsequent decision of a Division Bench allegedly in respect of
a similarly situated person, after three/ six years of the decision in the above noted first appeal of
the present applicant which attained finality, is neither a ground for condonation of delay nor a
ground for modification or recall or review of the decision in the first appeal of the applicants.
Thus, even on merit, such review or recall applications deserve to be rejected in view of law laid
down by the Constitution Bench of Hon'ble Supreme Court in the case of Mafatlal Industries
(supra).

Scope of Review:-

19. In the case of Desraj Vs. Union of India, 2004 (7) SCC 753 (paras-5, 6 & 14), Hon'ble
Supreme Court considered the grounds for review in the matter of compensation for land
acquisition and observed/ held as under:

"5.In the impugned judgments, the High Court has taken note of the fact that the
appellants did not challenge the judgment of the High Court dated 11.10.1984 in appeal, as was
done by Pratap Singh and others. As a result, judgment and decree dated 11.10.1984 in their cases
became final. In the impugned judgment, the High Court has stated thus:-

"It is pertinent to note that the applicants herein, namely, the appellants in RFAs Nos.
143/75 & 130/75, did not challenge the judgment dated 11.10.1984 in appeal, as was done by
Pratap Singh and others. As a result, judgment and decree dated 11.10.1984 in their case became
final."

6. The High Court also has noticed that although in the review applications reliance was
sought to be placed on Section 28-A of the Act claiming re-determination of the amount of
compensation equal to that awarded to other interested persons in the same village, however,
during the course of the hearing, learned counsel for the appellants abandoned that plea in the
light of the judgment of this Court in Jose Antonio Cruz Dos R. Rodriguese & Anr. etc. vs. Land
Acquisition Collector & Anr. [ JT 1996 (10 SC 573]. In this view, the High Court, by the impugned
judgments, dismissed the review applications filed by the appellants.
5 All. Sohan Vs State Of U.P.

157

14.Admittedly, the appellants in these cases did seek for reference under Section 18 of the
Act; filed appeals before the High Court and after the High Court delivered the judgment on
11.10.1984, did not challenge the same. The applications were not made under Section 28-A of the
Act within the prescribed period of limitation also in these cases. At any rate, the grounds raised in
the review applications were not the grounds which could be accepted to review or modify the
judgment of the High Court dated 11.10.1984. In our view, the High Court was right in dismissing
their review applications for the reasons stated in the impugned judgments."

20. That apart even on merit, the aforesaid review/ modification or recall applications are
wholly misconceived inasmuch as the appellant/ applicant has completely failed to point out
manifest error in the judgment dated 29.03.2008. He has further failed to bring his case within the
purview of Order XLVII Rule 1, C.P.C. Consequently, the aforesaid applications including the
review applications are wholly misconceived in view of the law laid down by Hon'ble Supreme
Court in the cases of Raja Satraji Vs. Mohd. Ajmat Azim Khan, 1971 (2) SCC 200 (para-13),
Delhi Pradesh Registered Medical Practitioner's Association Vs. Union of India, 2011 (4)
SCC 296 (paras-9 to 11) and Surendra Koli Vs. State of U.P., 2014 (16) SCC 718.

21. The jurisdiction and scope of review is not that of an appeal and it can be entertained only
when an error is apparent on the face of record. Once an order has been passed by this Court, a
review thereof must be subject to the rules of the game and cannot be lightly entertained. A review
of a judgment is a serious step, therefore, the court should be reluctant to resort to it except where a
glaring omission or patent mistake or like grave error has crept in the earlier judgment. A mere
repetition of old arguments or minor mistakes of inconsequential import are insufficient for review.
Review of the earlier order cannot be done unless the court is satisfied that material error, manifest
on the face of the order, undermines its soundness or results in miscarriage of justice, which I do
not find in the present set of facts. Review is not a routine procedure. An error which is not selfevident and has to be detected by a process of reasoning can hardly be said to be an error apparent
on the face of the record justifying the Court to exercise its power of review. Review proceedings
have to be strictly confined to the ambit and scope of Order XLVII Rule 1 C.P.C. In a review, it is
not open to the Court to re-appreciate the evidence and lead a different conclusion, even if that is
possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition
unless it is clear that there is an error apparent on the face of the record or for some reason akin
thereto. It is not re-hearing of the original matter. The power of review cannot be confused with
appellate power which enables an appellate court to correct all errors committed by a subordinate
court. As long as the point is already dealt with and answered, the parties are not entitled to
challenge the impugned judgment in the guise that an alternative view is possible under the review
jurisdiction.

22. A review will be maintainable on discovery of new and important matter or evidence
which, after the exercise of due diligence, was not within knowledge of the appellant or could not
be produced by him or there is mistake or error apparent on the face of the record or for any other
sufficient reason. The phrase "any other sufficient reason" has been interpreted in Chhajju Ram
vs. Neki, AIR 1922 PC 112 approved by Hon'ble Supreme Court in Moran Mar Basselios
158 INDIAN LAW REPORTS ALLAHABAD SERIES
Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., (1955) 1 SCR 520, to mean "a reason
sufficient on grounds at least analogous to those specified in the rules". Same principles had been
reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., JT 2013 (8) SC
275.

23. A review will not be maintainable on repetition of old and overruled arguments, minor
mistakes of inconsequential import, for original hearing of the case, in the absence of any material
error, manifest on the face of the order, undermines its soundness or results in miscarriage of
justice, possibility of two views on the subject, the error which has to be fished out and searched,
for appreciation of evidence on record, when same relief as sought in review petition was negatived
at the time of arguing the main matter. These principles also find support from the law laid down
by Hon'ble Supreme Court in the case of Kamlesh Verma Vs. Mayawati, 2013 (8) SCC 320.

Whether Market Value can be determined on the basis of Market Value of another land
of a subsequent acquisition:-

24. In the Review Application the applicant has relied upon a judgment of a division bench
dated 19.05.2010 in First Appeal No.1056 of 1999, Raghuraj Singh and others Vs. State of U.P.
and others relating to village Bhangel by which market value of land acquired in the year 1988 or
1989 was determined at Rs.297.00 per square yard. The said judgment has no relevance in the
present set of facts for reasons that the acquisition in question was made in the year 1976 of lands
of a different village. In the case of Bhupal Singh Vs. State of Haryana, (2015) 5 SCC 801
Hon'ble Supreme Court specifically considered similar question of determination of market value
under Section 23 of the Act and held that the fair market value of the acquired land is required to be
determined under Section 23 of the Act on the basis of the market rate of the adjacent lands
similarly situated to the acquired lands prevailing on the date of acquisition or/ and prior to
acquisition but not subsequent to the date of acquisition. Para-27 of the aforesaid judgment is
reproduced below:

"27. As rightly argued by learned counsel for the respondent, the fair market value of the
acquired land is required to be determined under Section 23 of the Act on the basis of the market
rate of the adjacent lands similarly situated to the acquired lands prevailing on the date of
acquisition or/and prior to acquisition but not subsequent to the date of acquisition. In
appropriate cases, addition of 10% per annum escalation in the prices specified in the sale deeds
(if filed and relied on) in relation to adjacent similarly situated lands for fixing the market value of
the acquired land may be permitted. Such is, however, not the case in hand. Here is the case where
firstly, no sale deeds were filed by the appellants to prove the fair market value of the acquired
land and secondly, what they now want this Court to do is to take into consideration the rate of
those lands which were acquired ten years after the date of acquisition in question and then
reduce the value of such land by 10% every year so as to determine the fair market value of the
acquired land in question. In our view, such procedure for determination is not provided in the
Act."

 (Emphasis supplied by me)
5 All. Amar Nath Kapoor & Ors. Vs Krishna Gopal Kapoor & Ors.

159

Whether relief can be granted beyond pleadings and relief prayed:-

25. There is yet another ground on which these applications deserve to be rejected. As already
noted in preceding paragraphs of this judgment, whatever relief was sought by the appellant was
granted by this court by judgment dated 29.03.2008. The relief attempted to be sought by means of
the above noted three applications namely modification, recall and review applications, cannot be
even entertained in the absence of any manifest error in the order dated 29.03.2008, on the settled
legal proposition that a relief not founded on the pleadings, can not be granted. This view is well
supported by the judgments of Hon'ble Supreme Court in State of Orrisa Vs. Mamta Mohanty,
2011 (3) SCC 436 (para-55), Trojan and Co. Vs. Nagappa Chettiar, AIR 1953 SC 235, Ishwar
Dutt Vs. Collector (LA), 2005 (7) SCC 190 and State of Maharashtra Vs. Hindustan
Construction Co. Ltd., 2010 (4) SCC 518.

Applicability of amended Section 23(2):-

26. In the case of Union of India and another Vs. Raghubir Singh (dead) by LRs. Etc.
(1989) 2 SCC 754 (paras-32, 33 and 34), Constitution Bench of Hon'ble Supreme Court considered
the provisions of Section 23 and Section 11 of the Act and Section 30(2) of the Amending Act,
1984 and held that the enhanced solatium of 30% shall, by virtue of Section 30(2) shall apply only
to the award by the Collector or by the court made between 30.04.1982 and 24.09.1984. In the
present set of facts admittedly the award by the S.L.A.O. was made on 08.03.1977 and by the court
on 27.02.1982 which is prior to the cut off dates. Thus even on merit the judgment dated
29.03.2008 passed by this court in the present appeal awarding solatium @ 15% does not suffer
from any error.

27. In view of the above discussions, all the above noted applications filed by the applicant/
appellant, are dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAKESH SRIVASTAVA, J.

First Appeal No.- 629 Of 2005
&
First Appeal No.- 177 Of 2006

Amar Nath Kapoor & Ors. ...Appellants
Versus
Krishna Gopal Kapoor & Ors. ...Respondents