# State Of U.P. & Ors v. Ishan International Education Society, Patna

- **Citation:** (2022) 3 ILRA 651
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-02
- **Case number:** Civil Misc. Review Application No. 349 of 2021
- **Bench:** Rajesh Bindal, C.J. Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-ishan-international-education-society-patna-48224
- **Pages:** 13

## Headnote

Civil Procedure Code, 1908 - Section 114 -
Order 47 - Rule 1 - Review - Error
Apparent
on
record
-
Review
not
permissible where practically arguments
have to be reheard - an order cannot be
reviewed on grounds, which were not
existing at the time of passing of the
initial order under review - Only the
material, which was available, as on the
date of initial order, could be referred to
or relied upon for the purpose of review of
such
order
-
happening
of
some
subsequent event or development cannot
be taken note of for declaring the initial
order/decision as vitiated by an error
apparent (Para 40)

Process of acquisition started before the
enactment of the 2013 Act, however, the award
was announced on May 8, 2015 i.e. after the
2013 Act came into force - In the order under
review, the Division Bench relied upon a
communication from the Government of India
dated October 26, 2015 and directed that the
market value of the land has to be determined
as on January 1, 2014 - Review was sought on
the ground that there is error apparent on
record, as reliance on a communication issued
by Government of India is misplaced for the
reason that it was not an order issued under
Section 113 of the 2013 Act - Even otherwise, if
the aforesaid communication is taken to be
issued under Section 113 of the 2013 Act, the
same having not been laid before the Parliament
is otherwise also non est and could not have
been relied upon - Held - Practically, the
arguments have to be reheard - not a case
where the error is apparent on record as review
of the order is sought on the ground of
subsequent communication of Government of
India dated September 26, 2018, which were
not existing at the time of passing of initial
order by this Court. Review petition liable to be
dismissed

Dismissed . (E-5)

List of Cases cited :

## Text

3 All. State of U.P. & Ors. Vs. Ishan International Education Society, Patna
651
(2022)03ILR A651
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Civil Misc. Review Application No. 349 of 2021
(In WRIT -C No. 60276 of 2015)
With
Civil Misc. Review Application No. 359 of 2021
(In WRIT -C No. 60276 of 2015)

State Of U.P. & Ors. ...Petitioners
Versus
Ishan International Education Society,
Patna ...Respondent

Counsel for the Petitioners:
Mr. Tushar Mehta, Senior Advocate through
V.C., Mr. Raghvendra Singh, Advocate
General through V.C., Mr. M.C. Chaturvedi,
Additional Advocate General, Ms. Archana
Singh, Additional Chief Standing Counsel,
Mr. Gopal Chandra Saxena, Standing
Counsel, Mr. Arun Singh, Advocate, Ms.
Sakshi Kakkar, Advocate, Mr. Shakti Singh,
Advocate

Counsel for the Respondent:
Mr. Chandan Sharma, Advocate, Mr. Shiva
Kant Mishra, Advocate

Civil Procedure Code, 1908 - Section 114 -
Order 47 - Rule 1 - Review - Error
Apparent
on
record
-
Review
not
permissible where practically arguments
have to be reheard - an order cannot be
reviewed on grounds, which were not
existing at the time of passing of the
initial order under review - Only the
material, which was available, as on the
date of initial order, could be referred to
or relied upon for the purpose of review of
such
order
-
happening
of
some
subsequent event or development cannot
be taken note of for declaring the initial
order/decision as vitiated by an error
apparent (Para 40)

Process of acquisition started before the
enactment of the 2013 Act, however, the award
was announced on May 8, 2015 i.e. after the
2013 Act came into force - In the order under
review, the Division Bench relied upon a
communication from the Government of India
dated October 26, 2015 and directed that the
market value of the land has to be determined
as on January 1, 2014 - Review was sought on
the ground that there is error apparent on
record, as reliance on a communication issued
by Government of India is misplaced for the
reason that it was not an order issued under
Section 113 of the 2013 Act - Even otherwise, if
the aforesaid communication is taken to be
issued under Section 113 of the 2013 Act, the
same having not been laid before the Parliament
is otherwise also non est and could not have
been relied upon - Held - Practically, the
arguments have to be reheard - not a case
where the error is apparent on record as review
of the order is sought on the ground of
subsequent communication of Government of
India dated September 26, 2018, which were
not existing at the time of passing of initial
order by this Court. Review petition liable to be
dismissed

Dismissed . (E-5)

List of Cases cited :

1. Hori Lal Vs St.of U.P. & ors., Writ-C No.
44731 of 2016, 09.03.2017

2. Hori Lal Vs St. of U.P. & ors. Civil Appeal
No.1462 of 2019, 05.02.2019

3. Aligarh Development Authority Vs Megh Singh
& ors. Civil Appeal No. 4821 of 2016 12.02.2019

4. The St. of W.B. & ors. Vs Kamal Sengupta &
ors. (2008)8 SCC 612

5. Kunhayammed & ors. Vs St. of Kerala & anr.
(2000)6 SCC 359

(Delivered by Hon'ble Rajesh Bindal, C.J.)
652 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Review of the order dated May 9,
2017 passed by the Division Bench of this
Court has been sought by filing the present
applications.

2. Before we notice the arguments
raised by the learned counsel for the
parties, we deem it appropriate to notice
certain dates, which are not in dispute.

RELEVANT
DATES
PERTAINING
TO
REVIEW
APPLICATION
FILED
BY
THE
STATE

Date of Decision
of
the
Writ
Petition
(order
under review)
May 9, 2017
Date of dismissal
of Special Leave
Petition
filed
against the order
dated
May
9,
2017
February 9, 2021
Date of filing of
present
Review
Application
October 27, 2021

RELEVANT DATES PERTAINING TO
REVIEW APPLICATION FILED BY
THE GHAZIABAD DEVELOPMENT
AUTHORITY

Date of Decision
of
the
Writ
Petition
(order
under review)
May 9, 2017
Date of dismissal
of Special Leave
Petition
filed
against the order
July 19, 2017
dated
May
9,
2017
Date of dismissal
of
Review
Petition
filed
before
Hon'ble
the
Supreme
Court against the
order dated July
19, 2017
December 5, 2017
Date of dismissal
of
Curative
Petition
August 28, 2019
Date of filing of
present
review
application
October
27,
2021

SUBMISSIONS OF PARTIES

3. Mr. Tushar Mehta, learned Senior
Advocate appearing for the applicants,
submitted that the legal issue involved in
the present case is as to the date on which
the amount of compensation payable to the
land owners has to be assessed. It is with
reference to Section 24(1)(a) of the Right to
Fair Compensation and Transparency in
Land
Acquisition,
Rehabilitation
and
Resettlement
Act,
2013
(hereinafter
referred to as ''the 2013 Act').

4. In the case in hand, the process of
acquisition started before the enactment of
the 2013 Act, however, the award was
announced on May 8, 2015 i.e. after the 2013
Act came into force. The date for assessment
of compensation was taken as the date on
which notification under Section 4 of the
Land Acquisition Act, 1894 (hereinafter
referred to as ''the 1894 Act') was issued. In
the order under review, the Division Bench of
this
Court,
while
relying
upon
a
communication from the Government of
3 All. State of U.P. & Ors. Vs. Ishan International Education Society, Patna
653
India dated October 26, 2015, had directed
that the market value of the land has to be
determined as on January 1, 2014. Even in
the cases where the acquisition proceedings
started when the 1894 Act was in force, the
date of issuance of notification under Section
4 of the 1894 Act, is the crucial date for
assessment of compensation. The aforesaid
communication from Government of India
was relied upon, without the same being
placed on record by the writ petitioners. The
same was considered to be a direction issued
by the Government of India under Section
113 of the 2013 Act. However, Section
113(2) of the 2013 Act provides that any
order issued under Section 113 of the 2013
Act has to be laid before the Parliament. It
was not done. Hence, the same could not be
relied upon by the Court. When the confusion
arose with reference to the aforesaid
communication of Government of India,
clarification was issued by the Government
of India on September 26, 2018 that the
earlier communication dated October 26,
2015 was not issued under Section 113 of the
2013 Act.

5. Mr. Mehta, learned Senior Advocate,
while referring to Section 24(1)(a) of the
2013 Act, submitted that it does not talk
about the date on which the compensation is
to be assessed. Section 26 of the 2013 Act
deals with determination of market value of
the land. Proviso to Section 26 of the 2013
Act
provides
that
crucial
date
for
determination of compensation is the date on
which the notification under Section 11 of the
2013 Act is issued. The same is similar to
Section 4 of the 1894 Act. As the provisions
of the 2013 Act are quite clear, there was no
ambiguity, which required clarification.

6. As legal issues are involved, which
need to be considered, present review
applications are maintainable.

7. In response thereto, learned counsel
for the respondent submitted that a perusal
of communication dated October 26, 2015
shows that the same was issued in response
to a clarification sought by the State of
Maharashtra. It was only after taking
opinion from the Department of Legal
Affairs, Ministry of Law & Justice that the
clarification was issued. It is only an order
passed under Section 113 of the 2013 Act,
which is to be laid before the Parliament,
not the direction. In the case in hand, it is
clearly
a
direction
issued
by
the
Government of India. He further submitted
that there is huge delay in filing the Review
Applications.

8. Learned counsel for the respondent
referred to an order passed by Division
Bench of this Court in Writ-C No. 44731
of 2016, titled as Hori Lal v. State of U.P.
and others, decided on March 9, 2017,
vide which bunch of writ petitions, where
similar claim was made by the writ
petitioners, was dismissed. The matter was
taken to Hon'ble the Supreme Court. In
Civil Appeal No.1462 of 2019, titled as
Hori Lal v. State of U.P. and others,
decided on February 5, 2019, the claim of
the land owners was conceded by the State,
while
relying
upon
the
aforesaid
communication of the Government of India
dated October 26, 2015 to the extent that
the date for assessment of market value of
the land for which the acquisition process
started under the 1894 Act and is
completed under the 2013 Act, is to be
taken as January 1, 2014. The stand of the
State was accepted. Reference was also
made to another order of Hon'ble the
Supreme Court dated February 12, 2019
passed in Civil Appeal No. 4821 of 2016
titled as Aligarh Development Authority
v. Megh Singh and others, where similar
stand taken by the State has been noticed
654 INDIAN LAW REPORTS ALLAHABAD SERIES
and while relying upon the earlier order
passed in Hori Lal's case (supra), the
compensation was directed to be assessed
as on January 1, 2014.

9. Once the stand taken by the State
before Hon'ble the Supreme Court in earlier
litigation with reference to the same issue is
in terms of the clarification issued by the
Government of India October 26, 2015, it
should not be permitted to raise a different
plea in the present case.

10. It was further argued that reliance
on the communication issued by the
Government of India on September 26,
2018 is totally misplaced for the reason that
it was not in place when the writ petition
was decided by this Court. Only the
material, which was available as on that
date, could be referred to or relied upon for
the purpose of review of any order passed.
After the dismissal of Special Leave
Petitions,
Review
Petition
and
even
Curative Petition by Hon'ble the Supreme
Court, nothing lies in the mouth of the
review-applicant to re-open the issue before
this Court. In support, reliance was placed
upon a judgment of Hon'ble the Supreme
Court in The State of West Bengal and
others v. Kamal Sengupta and others
(2008)8 SCC 612.

11. In response, Mr. Mehta, learned
Senior Advocate, submitted that even if the
Special Leave Petitions or Review Petition
had been dismissed by the Supreme Court,
review is maintainable as the order passed
by this Court, review of which is sought,
does not merge with the order of Hon'ble
the Supreme Court. In support, reliance
was placed upon a judgment of Hon'ble
Supreme Court in Kunhayammed and
others v. State of Kerala and another
(2000)6 SCC 359.

12. He further submitted that there is
error apparent on record, as reliance on a
communication issued by Government of
India is misplaced for the reason that it was
not an order issued under Section 113 of
the 2013 Act. It is established from the
subsequent
communication
of
the
Government of India. Even otherwise, if
the aforesaid communication is taken to be
issued under Section 113 of the 2013 Act,
the same having not been laid before the
Parliament is otherwise also non est and
could not have been relied upon. The
communication is dated October 26, 2015
whereas it was relied upon by this Court in
its order May 9, 2017 and there were
number of sessions of Parliament in
between. He further submitted that even
otherwise concession given by the State
counsel, on a matter of law, is not binding.

DISCUSSIONS

13. Heard learned counsel for the
parties and perused the paper book.

14. The notifications under Sections 4
and 6 of the 1894 Act in the case in hand
were issued on October 16, 2004 and
November 28, 2005, respectively. As the
award could not be announced before the
2013 Act came into force, the same was
announced on May 8, 2015 in terms of the
provisions of the 2013 Act. Delay was on
account of pendency of litigation. The writ
petition was filed in this Court. The sole
contention
was
that
the
date
of
determination of the compensation for the
acquired land should be taken as January 1,
2014, the date on which the 2013 Act came
into force. In support of the arguments,
reliance
was
placed
upon
the
communication issued by the Government
of India dated October 26, 2015. It is stated
to be under Section 113 of the 2013 Act.
3 All. State of U.P. & Ors. Vs. Ishan International Education Society, Patna
655
The letter of the Government of India was
relied upon by this Court while accepting
the writ petition holding that for assessment
of compensation the date should be taken
as January 1, 2014. This Court also
observed that the Government of India had
not issued any order rather had issued only
the directions after taking the opinion from
the Department of Legal Affairs, Ministry
of Law & Justice and these directions were
not required to be laid before the two
Houses of Parliament and are also not
inconsistent with the provisions of the 2013
Act.

15. It may be relevant to add here that
the aforesaid order of the Government of
India dated October 26, 2015, on which
reliance was placed upon by the writ
petitioners, was not part of the record, as
apparently the same was produced in Court
at the time of hearing, which had been
extracted in toto in the order dated May 9,
2017. Otherwise, the existence thereof has
not been disputed by the learned counsel
for the review-applicants.

16. Before we proceed to deal with
the arguments raised by the learned counsel
for the parties, it would be apt to refer to
certain provisions of the 2013 Act.

17. Sections 24, 26 and 113 of the
Right
To
Fair
Compensation
And
Transparency
In
Land
Acquisition,
Rehabilitation And Resettlement Act, 2013,
are extracted below:-

"24. Land acquisition process
under Act No. 1 of 1894 shall be deemed
to have lapsed in certain cases.-(1)
Notwithstanding anything contained in this
Act, in any case of land acquisition
proceedings initiated under the Land
Acquisition Act, 1894,-

(a) where no award under section
11 of the said Land Acquisition Act has
been made, then, all provisions of this Act
relating
to
the
determination
of
compensation shall apply; or

(b) where an award under said
section 11 has been made, then such
proceedings shall continue under the
provisions of the said Land Acquisition
Act, as if the said Act has not been
repealed.

(2)
Notwithstanding
anything
contained in sub-section (1), in case of land
acquisition proceedings initiated under the
Land Acquisition Act, 1894 (1 of 1894),
where an award under the said section 11
has been made five years or more prior to
the commencement of this Act but the
physical possession of the land has not
been taken or the compensation has not
been paid the said proceedings shall be
deemed to have lapsed and the appropriate
Government, if it so chooses, shall initiate
the proceedings of such land acquisition
afresh in accordance with the provisions of
this Act:

Provided that where an award has
been made and compensation in respect of
a majority of land holdings has not been
deposited
in
the
account
of
the
beneficiaries,
then,
all
beneficiaries
specified in the notification for acquisition
under
section 4 of
the
said
Land
Acquisition Act, shall be entitled to
compensation in accordance with the
provisions of this Act."

XXX

"26. Determination of market
value of land by Collector.-(1) The
Collector shall adopt the following criteria
656 INDIAN LAW REPORTS ALLAHABAD SERIES
in assessing and determining the market
value of the land, namely:--

(a) the market value, if any,
specified in the Indian Stamp Act, 1899 (2
of 1899) for the registration of sale deeds
or agreements to sell, as the case may be, in
the area, where the land is situated; or

(b) the average sale price for
similar type of land situated in the nearest
village or nearest vicinity area; or

(c)
consented
amount
of
compensation as agreed upon under subsection (2) of section 2 in case of
acquisition of lands for private companies
or for public private partnership projects,
whichever is higher:

Provided
that
the
date
for
determination of market value shall be the
date on which the notification has been
issued under section 11.

(2) The market value calculated
as per sub-section (1) shall be multiplied by
a factor to be specified in the First
Schedule.

(3) Where the market value under
sub-section (1) or sub-section (2) cannot be
determined for the reason that-

(a) the land is situated in such
area where the transactions in land are
restricted by or under any other law for the
time being in force in that area; or

(b) the registered sale deeds or
agreements to sell as mentioned in clause
(a) of sub-section (1) for similar land are
not available for the immediately preceding
three years; or

(c) the market value has not been
specified under the Indian Stamp Act, 1899
(2 of 1899) by the appropriate authority,
the State Government concerned shall
specify the floor price or minimum price
per unit area of the said land based on the
price calculated in the manner specified in
sub-section (1) in respect of similar types
of land situated in the immediate adjoining
areas:

Provided that in a case where the
Requiring Body offers its shares to the
owners of the lands (whose lands have been
acquired) as a part compensation, for
acquisition of land, such shares in no case
shall exceed twenty-five per cent, of the
value so calculated under sub-section (1) or
sub-section (2) or sub-section (3) as the
case may be:

Provided
further
that
the
Requiring Body shall in no case compel
any owner of the land (whose land has been
acquired) to take its shares, the value of
which is deductible in the value of the land
calculated under sub-section (1):

Provided also that the Collector
shall,
before
initiation
of
any
land
acquisition proceedings in any area, take all
necessary steps to revise and update the
market value of the land on the basis of the
prevalent market rate in that area:

Provided also that the appropriate
Government shall ensure that the market
value determined for acquisition of any
land
or
property
of
an
educational
institution established and administered by
a religious or linguistic minority shall be
such as would not restrict or abrogate the
right
to
establish
and
administer
educational institutions of their choice."
3 All. State of U.P. & Ors. Vs. Ishan International Education Society, Patna
657

XXX

"113.
Power
to
remove
difficulties.-(1) If any difficulty arises in
giving effect to the provisions of this Part,
the Central Government may, by order,
make such provisions or give such
directions
not
inconsistent
with
the
provisions of this Act as may appear to it to
be necessary or expedient for the removal
of the difficulty:

Provided that no such power shall
be exercised after the expiry of a period of
two years from the commencement of this
Act.

(2) Every order made under this
section shall be laid, as soon as may be
after it is made, before each House of
Parliament."

18. The communications from the
Government of India dated October 26,
2015 and September 26, 2018, are also
extracted below:

"Government of India
Department of Land Resources
Ministry of Rural Development

Hukum Singh Meena, IAS

Joint Secretary

Dated 26th October, 2015

Dear,

Please refer to your letter No.
R&FD/General-2014 CR-31/A4, dated the
11th September, 2014 regarding directions
under section 113 of the Right to Fair
Compensation and Transparency in Land
Acquisition,
Rehabilitation
and
Resettlement Act, 2013.
2. The issues raised by you along with the
view of this Department were sent to the
Department of Legal Affairs, Ministry of
Law & Justice for opinion in the matter.
The issues raised by the Government of
Maharashtra and the opinion of the
Department, as concurred in by the
Department of Legal Affairs, thereon are
enumerated below:-

S.
No.
Issues raised
by
the
Government
of
Maharashtra
Opinion of the DoLR
1.
While
determining
the
amount
of
compensatio
n
under
Section
27
of
the
RFCTLARR
Act, 2013 of
Hon'ble
Supreme
Court's
orders
are
followed or
cost of assets
have to be
separately
computed in
addition
to
cost of land?

Under Section 26 of
the RFCTLARR Act,
2013 market value of
the land is determined
while under section
27, value of all assets
attached to the land is
added to die market
value to determine, the
amount
of
compensation. Thus, it
is not contradictory to
me Supreme Court's
orders quoted in me
letter of Maharashtra
Government.

2.
Under
Section
24(1),
the
reference
date
for
calculating
12% interest
Under section 24 (1),
the reference date for
calculating
12%
interest should be date
of
preliminary
notification
under
Land Acquisition Act,
658 INDIAN LAW REPORTS ALLAHABAD SERIES
should
be
date
of
preliminary
notification
under Land
Acquisition
Act,
1894.

1894. Department of
Land
Resources
agrees to this, as there
is no other reference
date,
that
can
be
treated as equivalent
to
date
of
SIA
notification under die
RFCTLARR
Act,
2013.
3.
For
calculation
of
market
value, under
Section
24
(1)(a),
reference
date should
be
01.01.2014
(commence
ment
of
RFCTLARR
Act,
2013)
or date of
issuing
preliminary
notification
under Land
Acquisition
Act, 1894?
The reference date for
calculation of market
value, under Section
24(1) (a) should be
01.01.2014
(commencement
of
RFCTLARR
Act,
2013), as the Section
reads "in any case of
land
acquisition
proceedings
initiated
under
the
Land
Acquisition Act, 1894,
where no award under
section 11 of the said
Land Acquisition Act
has been made then,
all provisions of this
Act relating to the
determination
of
compensation
shall
apply Under section
26 reference date is
date of preliminary
notification,
but
section 24 is a special
case of application of
the
Act.
In
retrospective
cases,
and a later date of
determination
of
market
value
is
suggested
(i.e.
01.01.2014)
with
a
view to ensure that the
land
owners/farmers/affect
ed
families
get
enhanced
compensation
under
the
provisions
of
RFCTLARR
Act,
2013
(as
also
recommended
by
Standing
Committee
in its 31st report).

Sd/-

(Hukum Singh Meena)

Shri Manu Kumar Srivastava

Principal Secretary

Revenue & Forest Department

Government of Maharashtra,

Copy to :-

All
Principal
Secretaries
of
States/UTs
(except
of
States
of
Maharashtra
& Govt. of Jammu &
Kashmit) for information and necessary
action.

(Hukum Singh Meena)

Joint Secretary (LR)

Tele No. 011-23063462"

XXX

"No.13013/2017-LRD
Government of India
Ministry of Rural Development
Department of Land Resources
NBO Building, Nirman Bhawan, New
Delhi

Dated:26th September, 2018

To,
3 All. State of U.P. & Ors. Vs. Ishan International Education Society, Patna
659

Shri Vikas Kharge

Secretary, Revenue & Forest
Department

Government of Maharashtra,

Mantralaya Annex-32

Subject : Clarification regarding
reference date for calculation of market
value in cases of land acquisition under LA
Act, 1894-reg.

Sir,

I am direction to refer to your letter
no. R& FD/General-2014/CR-31/A-4 dated
3rd May, 2017 addressed to the Secretary,
Ministry of Law & Justice in reference to this
Department's D.O. letter no.13013/01/2014LRD
(pt)
dated
26.10.2015,
letter
no.13013/01/2014-LRD dated 14.06.2016
and your letter no.R&FD/ General-2014/CR31/A-4 dated 30th October, 2017 on the
subject mentioned above and to say that:

(i) The quantum of compensation
and rate of interest is to be decided by a
quasi-judicial
authority/collector
by
application of his own mind, based on facts &
merits of each case as per the relevant
provision of law.

(ii) D.O. Letter No.13013/01/2014LRD
(pt)
dated
26.10.2015
of
this
Department is only a D.O. letter and not an
order under Section 113 of the Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement
Act, 2013.

Yours faithfully,

Sd/-

(Hukum Singh Meena)
Joint Secretary to the Government of India

Tel 011-23063462"

REGARDING
CLARIFICATION
ISSUED BY THE GOVERNMENT OF
INDIA

19. Section 113(1) of the 2013 Act
enables the Government of India to issue any
order to remove difficulty arising in giving
effect to the provisions of that part. Though the
2013 Act is not divided into different parts,
however, there are XIII Chapters. Section 113
of the 2013 Act is part of Chapter XIII. This
Chapter contains Sections 91 to 114. Any order
passed under Section 113 of the 2013 Act
cannot be inconsistent with the provision of the
2013 Act, rather is meant for removal of any
difficulty. Every order made under the aforesaid
section has to be laid before each House of
Parliament.

20. In the case in hand, it is not in dispute
that the communication dated October 26,
2015, which is stated to be issued under Section
113 of the 2013 Act, was not laid before any of
the House of Parliament. This Court had made
a distinction in two words used in Section 113
of the 2013 Act i.e. ''order' and ''direction'. A
distinction is sought to be made while referring
to Sub-section (2) thereof holding that only an
order passed under Section 113 of the 2013 Act
is to be laid before the Parliament and not the
direction. The issue may require consideration
as to whether the aforesaid two terms are
different or the word ''order' has been used in
generinc sense.

21. A perusal of the communication dated
October 26, 2015 reveals that State of
Maharashtra had sought certain directions with
reference to the 2013 Act from the Government
of India. It was clarified that for the purpose of
calculation of market value, the crucial date is
January 1, 2014, in case the acquisition process
660 INDIAN LAW REPORTS ALLAHABAD SERIES
was initiated under the 1894 Act and was
completed under the 2013 Act.

22. The aforesaid communication was
later on clarified by the Government of
India vide letter dated September 26, 2018
to mean that the same was not issued under
Section 113 of the 2013 Act. Letter dated
September 26, 2018 was issued after the
decision of writ petition by this Court on
May 9, 2017 and even dismissal of the
Special Leave Petition and Review Petition
filed by the Ghaziabad Development
Authority, on July 19, 2017 and December
5, 2017, respectively.

EARLIER ORDERS OF COURT

23. The fact remains that in the case
in hand the Division Bench of this Court, in
the order under review, relied upon the
aforesaid
clarification
issued
by
the
Government of India dated October 26,
2015 and directed for taking the date of
assessment of compensation as January 1,
2014.

24. Prior to that, a Division Bench of
this Court in Hori Lal's case (supra) had
rejected the same argument while holding
that the proper remedy is available to the
land owners under Section 64 of the 2013
Act for assessment of fair compensation.
The order passed by this Court in Hori
Lal's case (supra) was subject matter of
challenge before Hon'ble the Supreme
Court in Civil Appeal No.1462 of 2019
titled as Hori Lal v. State of U.P. and
others, which was disposed of on February
5, 2019. In the aforesaid order the stand
taken by the State was recorded that the
crucial
date
for
assessment
of
compensation shall be taken as January 1,
2014, in case where the acquisition
proceedings started before commencement
of the 2013 Act.

25. Subsequent thereto, in the order
passed by Hon'ble the Supreme Court in
Aligarh Development Authority's case
(supra) also Hon'ble the Supreme Court
while relying upon earlier order passed in
Hori Lal's case (supra) directed that the
compensation in similar situation has to be
given taking the crucial date as January 1,
2014. The notification under Section 4 of
the 1894 Act shall be deemed to be issued
as on January 1, 2014.

26. In the case in hand, the Special
Leave Petition filed by the Ghaziabad
Development Authority was dismissed on
July 19, 2017 and the Special Leave
Petition filed by the State was dismissed on
February 9, 2021. The Review Petition as
well as the Curative Petition filed by the
Ghaziabad Development Authority were
also dismissed on December 5, 2017 and
August 28, 2019, respectively.

27. Earlier, this Court in Writ-C
No.15804 of 2016 titled as Prahlad Singh
and others v. State of U.P. and others,
decided on September 26, 2016, while
relying upon the communication issued by
the Government of India dated October 26,
2015, had taken the view that the crucial
date for assessment of compensation is
January 1, 2014.

28. Prior to the order passed by the
Division Bench of this Court in the case in
hand on May 9, 2017, this Court vide order
dated April 18, 2017 passed in Writ-C
No.44720 of 2016 titled as Krishna Autar
and others v. State of U.P. and others,
while relying upon the communication
issued by the Government of India dated
October 26, 2015, had taken the view that
the
crucial
date
for
assessment
of
compensation is January 1, 2014. The
Special Leave Petition (Civil) Diary
3 All. State of U.P. & Ors. Vs. Ishan International Education Society, Patna
661
No.26271 of 2017, titled as Moradabad
Development
Authority
v.
Krishna
Autar and others filed by the Moradabad
Development
Authority
against
the
aforesaid Division Bench judgment of this
Court was dismissed on December 5, 2017.
Even the Review Petition filed by the
Moradabad Development Authority was
dismissed by Hon'ble the Supreme Court
on February 6, 2018.

29. Vide order dated March 28, 2017
passed by Division Bench of this Court in
Writ-C No.40 of 2017, titled as Deepak
Kumar and others v. State of U.P. and
others,
direction
was
issued
for
determination of compensation as on
January 1, 2014. It was a case in which the
acquisition process was initiated under the
1894 Act, however, the award was
announced after the 2013 Act came into
force. Reliance was placed upon the
communication issued by the Government
of India dated October 26, 2015. It may be
out of place, if not added here, that the
Ghaziabad Development Authority vide
Special Leave Petition (Civil) No.25061
of
2017,
titled
as
Ghaziabad
Development
Authority
v.
Deepak
Kumar Singh and others had challenged
the aforesaid order passed by Division
Bench of this Court, wherein vide order
dated September 22, 2017 leave was
granted and operation of the order passed
by this Court was stayed.

30. In yet another case bearing WritC No.9277 of 2019, titled as Natthu Singh
and others vs. State of U.P. and others,
Division Bench of this Court vide order
dated March 14, 2019 relying upon the
judgment of Hon'ble the Supreme Court in
Aligarh Development Authority's case
(supra),
directed
for
assessment
of
compensation as on January 1, 2014.
Against the aforesaid order, Special Leave
Petition (Civil) Diary No.30658 of 2019,
titled as the State of Uttar Pradesh and
others v. Nathu Singh and others was
filed by the State of U.P. in which notice
was issued on September 11, 2019 and
proceedings in the pending contempt
petition were stayed. It was directed to be
tagged with Special Leave Petition (Civil)
No.24242 of 2018.

31. Against the Division Bench
judgment of this Court dated April 18,
2017 passed in Writ-C No.44720 of 2016,
titled as Krishna Autar and others v.
State of U.P. and others, the State of U.P.
filed Special Leave Petition (Civil)
No.27415 of 2018, titled as State of U.P.
and others v. Krishna Autar and others
before the Hon'ble Supreme Court, wherein
vide order dated September 4, 2018 notice
was issued and operation of the impugned
order passed by Division Bench of this
Court was stayed. While passing the order
dated September 4, 2018, Hon'ble the
Supreme Court, on the basis of the
statement made at the Bar that the issue,
which is subject matter of consideration in
the aforesaid special leave petition, is
pending consideration before the Larger
Bench in Special Leave Petition (Civil)
No.9036-9038 of 2016, titled as Indore
Development Authority and others v.
Manoharlal and others, directed that the
said matter be listed after the judgment is
rendered by the Larger Bench.

CONCLUSIONS

32. Prior to the order passed in the
case in hand, this Court in Prahlad Singh's
case (supra), vide order dated October 26,
2016 directed that the compensation be
assessed as on January 1, 2014. Nothing
was stated before this Court by either of the
662 INDIAN LAW REPORTS ALLAHABAD SERIES
parties as to whether the aforesaid order
passed by this Court was challenged before
Hon'ble the Supreme Court or not.

33. Further, prior to the order passed
by this Court in the case in hand on May
9, 2017, this Court vide order dated
March 9, 2017 passed in Hori Lal's case
(supra) had dismissed the said writ
petition, in which similar claim was
made. Immediately thereafter, this Court
vide orders dated March 28, 2017 and
April 18, 2017 passed in Deepak Kumar
and others' case (supra) and Krishna
Autar and others' case (supra), filed
raising the same issue, allowed the said
writ petitions taking the view that the
crucial
date
for
assessment
of
compensation is January 1, 2014.

34. In Special Leave Petition (Civil)
No.25061 of 2017 filed by the Ghaziabad
Development
Authority
against
the
judgment of this Court dated March 28,
2017 passed in Deepak Kumar and
others' case (supra), leave was granted by
Hon'ble the Supreme Court and operation
of the impugned order was stayed, vide
order dated September 22, 2017.

35. Against the judgment of this
Court dated April 18, 2017 passed in
Krishna Autar and others' case (supra),
Special Leave Petition (Civil) Diary
No.26271 of 2017 filed by the Moradabad
Development Authority was dismissed by
Hon'ble the Supreme Court on November
14, 2017. Whereas in Special Leave
Petition No.25061 of 2017 filed by the
State of U.P. and others against the same
judgment, notice was issued and operation
of the impugned order of the Division
Bench of this Court was stayed, vide order
dated September 4, 2018.

36. Further, this Court in Natthu
Singh and others' case (supra) had granted
the relief to the land owners relying upon
the order of Hon'ble the Supreme Court in
Aligarh Development Authority's case
(supra). Against that order, in the Special
Leave Petition filed by the State of U.P.
and others, notice was issued and pending
contempt proceedings were stayed, vide
order dated September 11, 2019.

37. Considering the aforesaid factual
matrix, one thing is clear that the State has
not been diligent in pursuing its case where
identical issues were involved before this
Court. Apparently, the facts were also not
properly presented before Hon'ble the
Supreme Court with reference to pendency
or decision of the cases.

38. Though dismissal of the Special
Leave Petition may not be a bar for
entertaining
the
Review
Application,
however, the fact remains that where this
Court had taken the view that crucial date
for assessment of compensation is January
1, 2014, Special Leave Petitions filed by
State
and
Ghaziabad
Development
Authority in the case in hand were
dismissed by Hon'ble the Supreme Court,
whereas three Special Leave Petitions, as
referred to in the preceding paragraphs,
have been entertained thereafter and are
pending consideration. Where the view
taken by this Court was that the land
owners are not entitled for assessment of
compensation as on January 1, 2014.

39. Further, for interpretation of the
communication of the Government of India
dated October 26, 2015, arguments are
sought to be readdressed referring to the
subsequent communication of Government
of India dated September 26, 2018, which
3 All. Smt. Sharma Devi & Ors. Vs. State of U.P. & Ors.
663
came in existence after the writ petition
was decided by this Court.

40. Practically, the arguments have to
be reheard. In the facts and circumstances
of the case, it may not be a case where the
error is apparent on record as review of the
order is sought on grounds, which were not
existing at the time of passing of order by
this Court.

41. For the reasons mentioned above,
we do not find any case is made out for
entertaining
the
present
Review
Applications. The Review Applications
along with all accompanying applications
are, accordingly, dismissed.
----------
(2022)03ILR A663
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.03.2022

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ C No. 649 of 2022

Smt. Sharma Devi & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Shiv Pal Singh

Counsel for the Respondents:
C.S.C.

A. Civil Law - Allotment of fair price shop
on compassionate ground - Indian Stamp
Act, 1899 - Section 47-A - The very nature of
compassionate appointment is the financial
need or necessity of the family. The daughterin-law on the death of her husband does
not cease to be a part of the family. The
concept that such daughter-in-law must go back
and stay with her parents is abhorrent to our
civilized society. Such daughter-in-law must,
therefore, have also right to be considered
for compassionate appointment as she is
part of the family where she is married
and if staying with her husband's family.
(Para 6)

The daughter in law upon death of her
husband does not cease to be part of
family. Applying the same logic in the
case of daughter in law which has not
been widowed, it can be seen that the
later would have a better claim than a
widowed daughter in law since she
continues to be a part of family as much
as a widowed daughter in law. As such
no
distinction
can
be
carved
out
between a daughter in law whose
husband
is
alive
and
a
widowed
daughter in law. (Para 7)

It is apparent that petitioner's application for
compassionate appointment of the fair price
shop in question has been rejected only on
the ground that she does not come within the
definition of 'family' as per paragraph IV(X) of
the GO dated 5th August, 2019 since
petitioner is the daughter in law of the earlier
fair price shop agreement holder. This aspect
of the matter having already been covered by
the judgments of this Court, the ground for
rejection
of
petitioner's
application
for
compassionate
appointment
is
clearly
unsustainable. (Para 2, 8)

Writ petition allowed. (E-4)

Precedent followed:

1. Pushpa Devi Vs St. of U.P. & ors., Writ-C No.
18519 of 2021, Order dated 22.11.2021 (Para 3)

2. U.P. Power Corp. Ltd. Vs Smt. Urmila Devi,
2011(3) ADJ 432 (Para 3)

Present petition challenges orders dated
12.01.2022
whereby
petitioner's
application for allotment of fair price shop
on
compassionate
ground
has
been
rejected.

(Delivered by Hon'ble Manish Mathur, J.)