Mr. Kalka Prasad Agarwal & Anr. vs Lieutenant Governor Of Delhi & ...
2010 Latest Caselaw 1448 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                          Date of decision: 16.03.2010

+                               WP (C) No.12974-75 of 2006

MR. KALKA PRASAD AGARWAL & ANR.          ...PETITIONERS
                   Through: Mr. V.P. Singh, Sr. Advocate with Mr.
                            Mukul Dhawan, Advocate.

                                           Versus

LIEUTENANT GOVERNOR OF DELHI & ORS.       ...RESPONDENTS
                  Through:   Mr. Sanjay Poddar, Advocate
                             for the LAC.
                             Mr. Rajiv Bansal & Mr. Harshit
                             Agarwal, Advocates for the DDA.
                             Ms. Sudershani Ray, Advocate
                             for the MCD.


+                               WP (C) No.7754 of 2007

SHRI AJEET PRASAD AGGARWAL                                  ...PETITIONER
                    Through:                    Mr. Anand Yadav, Advocate.

                                           Versus

UNION OF INDIA & ORS.                                   ...RESPONDENTS
                                Through:        Mr. Sanjay Poddar, Advocate
                                                for the LAC.
                                                Mr. Rajiv Bansal & Mr. Harshit
                                                Agarwal, Advocates for the DDA.
                                                Ms. Sudershani Ray, Advocate
                                                for the MCD.


+                               WP (C) No.2286 of 2008

SHRI AMBA PRASAD AGGARWAL & ANR.        ...PETITIONERS
                   Through: Mr. Anand Yadav, Advocate.

                                           Versus

UNION OF INDIA & ORS.                                   ...RESPONDENTS
                                Through:        Mr. Sanjay Poddar, Advocate
                                                for the LAC.
                                                Mr. Rajiv Bansal & Mr. Harshit
                                                Agarwal, Advocates for the DDA.
                                                Ms. Sudershani Ray, Advocate
                                                for the MCD.


_____________________________________________________________________________________________
WP (C)Nos.12974-75 of 2006, 7754 of 2007 & 2286 of 2008                          Page 1 of 17
 CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MS. JUSTICE VEENA BIRBAL

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                           YES

2.        To be referred to Reporter or not?                            YES

3.        Whether the judgment should be                                YES
          reported in the Digest?


SANJAY KISHAN KAUL, J. (Oral)

1. These petitions raise a common question of law about the validity of

an award under the Land Acquisition Act, 1894 (hereinafter referred

to as the said Act) where the award deals with a notification under

Section 4 of the said Act which does not pertain to the land in

question.

2. In order to appreciate the controversy the factual matrix of the

matters are being set out separately hereinafter:

WP (C) No.12974-75/2006

3. The two petitioners are sons of late Shri Moti Ram. A notification

was issued under Section 4 of the said Act on 13.11.1959 and the

land of the petitioners was not covered under the said notification.

However, another notification was issued under Section 4 of the said

Act on 24.10.1961 which included the land of the petitioners as part

of block No.20. The land is situated in khasra No.1295/84 which

measures 9 bighas. A part of the land had been sold by the

predecessor-in-interest of the petitioners, being the father late Shri

Moti Ram. The land in question measuring 1 bigha 1 biswa

(equivalent to 1050 sq.yds) being part of this 9 bighas is in question. _____________________________________________________________________________________________

4. Undisputedly no objections were filed under Section 5A of the said

Act to the notification issued under Section 4 of the said Act dated

24.10.1961. A declaration was made on 15.12.1966 and the award

No.223/86-87 came to be made on 17.9.1986. Shri Moti Ram, in the

mean time, had passed away on 30.3.1984. The possession of the

land was undisputedly not taken over.

5. Late Shri Moti Ram during his lifetime filed CWP No.2685/1981

praying that the land bearing No.1283/67/2 was not part of

notification under Section 4 of the said Act dated 13.11.1959 as the

same was situated on the southern boundary of Ring Road and

western boundary of Mathura Road. This writ petition was disposed

of on 21.4.1982 holding that in view of the disputed questions raised

the same could not be decided in the writ proceedings. Late Shri

Moti Ram thereafter filed a suit for declaration and permanent

injunction claiming the same relief in July, 1982 and subsequently

passed away on 30.3.1984 leaving behind four sons and two

daughters as his legal heirs.

6. The award No.223/86-87 was passed on 17.9.1986 predicated on the

notification under Section 4 of the said Act dated 13.11.1959

referring to the land in khasra No.1295/84 measuring 9 biswas. This

is despite the undisputed position that the notification under Section 4

of the said Act dealing with khasra No.1259/84 was dated

24.10.1961.

7. The legal heirs of late Shri Moti Ram enjoyed interim stay from

1.8.1988 on the ground of notification dated 13.11.1959 not applying

to the land in question. On the demise of late Shri Moti Ram a suit _____________________________________________________________________________________________

for partition was filed by one of the sons against the other legal heirs

and a compromise decree was passed on 26.5.1989 in terms whereof

the two petitioners herein got one-half undivided share each in the

land forming part of khasra No.1295/84 in Village Kilokari, Mathura

Road, New Delhi.

8. The Union of India sought to amend their written statement in the

declaratory proceedings on 24.1.1984 seeking to state that a clerical

error has crept in the award and the notification under Section 4 of

the said Act was actually dated 24.10.1961 and not 13.11.1959. This

application was, however, dismissed on 20.11.2004 and a CM (Main)

Petition challenging the order of dismissal of the application for

amendment is pending consideration in the Delhi High Court.

9. The petitioners wanted sanction from the MCD for construction and

on seeking so, the Deputy Secretary (LA) informed the Senior Town

Planner of the MCD that as per the land record register a notification

dated 24.10.1961 under Section 4 of the said Act had been issued in

respect of the land in question followed by the declaration under

Section 6 of the said Act on 15.12.1966. This information was sent

on 5.7.2005.

10. It is the plea of the petitioners that the Government of NCT of Delhi

is now threatening to grab the land of the petitioners under the award

No.223/86-87 even though the whole award is predicated on a

notification dated 13.11.1959 issued under Section 4 of the said Act

in respect of the land of the petitioners while no such notification

exists. The only notification issued under Section 4 of the said Act is

_____________________________________________________________________________________________

dated 24.10.1961 in respect of which no award has been made till

date.

11. The petitioners claim knowledge of these proceedings only when

they sought sanction of the plan in the year 2005 and the status of the

land was inquired into. This is the explanation for the delay in

approaching the Court. The factual matrix is not really disputed by

the LAC as per the counter affidavit but the plea of delay and laches

has been raised as the award was announced on 19.9.1986. It has

been further pleaded that the declaration under Section 6 of the said

Act was issued on 15.12.1966 and the petitioners had taken no care to

file objections to the notification under Section 4 of the said Act

dated 24.10.1961, which covered the land of the petitioners. The

stand of the DDA is no different.

WP (C) No.2286/2008

12. The facts of this case are identical to WP (C) No.12974-75/2006

except that this writ petition pertains to land measuring 18 biswas

(850 sq.yds.) forming part of the same khasra No.2195/84.

WP (C) No.7754/2007

13. Late Shri Jagannath purchased a piece of land at Village Kilokari,

Mathura Road, New Delhi on 2.1.1940 and is stated to have

constructed shops thereon. This area ceased to be a rural area and

became part of urban area on 4.3.1954 and the shops were given

municipal number No.429 to 429/25. Shri Jagannath also paid house

tax in respect of the same. Late Shri Jagannath executed a Will dated

17.7.1956 bequeathing the said property in favour of his grandsons

including the petitioner. Thereafter the facts are similar as the parties _____________________________________________________________________________________________

are the same and the partition suit filed included this property and in

pursuance to the final decree the property bearing No.335-A,

Jagannath Market, Hari Nagar, Ashram, Mathura Road, New Delhi

fell to the share of the petitioner and was mutated in the records of

the MCD accordingly in 1996.

14. The petitioner agreed to sell the property to M/s. Panna Lal Om

Parkash & Company Private Limited on 1.9.2005 and the transaction

was to be completed on or before 31.8.2006. M/s. Panna Lal Om

Parkash & Company Private Limited filed a suit for specific

performance against the petitioner on 28.8.2006 and interim orders

against the petitioner were granted 30.8.2006. It is at the stage of

filing of the replication that the petitioner came to know of pendency

of some acquisition proceedings and the petitioner filed an

application under the Right to Information Act on 11.6.2007. The

petitioner was informed by the Land & Building Department of the

Government of NCT of Delhi on 3.8.2007 that the property of the

petitioner was notified and a declaration under Section 6 of the said

Act had been made on 15.12.1966. The award No.221/86-87 was

announced on 17.9.1986. This resulted even in some criminal

proceedings against the petitioner.

15. On receipt of the award through efforts made by the petitioner it

came to light that the same pertained to the notification under Section

4 of the said Act dated 13.11.1959 and a declaration under Section 6

of the said Act dated 6.1.1969. A corrigendum dated 22.9.1986 to

award bearing No.221/86-87 was issued as some trees had been

_____________________________________________________________________________________________

inadvertently left out of the award and the award was modified under

Section 13A of the said Act allowing for compensation for trees.

16. The petitioner has further alleged that the award pertains land bearing

khasra No.1193/70 measuring 1 bighas and 3 biswas of the petitioner

and khasra No.1202/1194 owned by Shri Daljit Singh and others. On

the land owned by Shri Daljit Singh and others a kothi is stated to

have been constructed and the same form part of Nathu Ram Sweets,

Friends Colony and has been given property No.91. The shops of the

petitioner and the kothi are stated to have been constructed almost at

the same time. Surprisingly, the declaration under Section 6 of the

said Act dated 6.1.1969 refers to the total area of 4 bighas and 6

biswas of khasra Nos.1193/70 and 1702/1194. Thus, the declaration

under Section 6 of the said Act does not mention the khasra number

of Shri Daljit Singh and others as mentioned in the award as the

award mentions the khasra No.1202/1194 while the declaration under

Section 6 of the said Act mentions the khasra No.1702/1194.

17. The respondents have filed no counter affidavit to the said petition

despite opportunity granted and it is the stand of the learned counsels

that the counter affidavits filed in WP (C) No.12974-75/2006 would

suffice.

The Common Ground:

18. A discussion of all this factual matrix, thus, makes it abundantly clear

that undisputedly while making the awards reference to the

notifications under Section 4 of the said Act is not in respect of the

land of the petitioners but some other notification. Not only that the

complete award runs and repeatedly gives the date of 13.11.1959 and _____________________________________________________________________________________________

even determines the compensation on that basis. Thus, the plea of

the petitioners is that there is actually no notification existing under

Section 4 of the said Act and the same cannot be styled as a mistake.

Without prejudice to that it is the case of the petitioner that the

mistake, if any, can only be remedied as per Section 13A of the said

Act, which reads as under:

"[13A. Correction of clerical errors, etc. - (1) The Collector may, at any time but not later than six months from the date of the award, or where he has been required under section 18 to make a reference to the Court, before the making of such reference, by order, correct any clerical or arithmetical mistakes in the award or errors arising therein either on his own motion or on the application of any person interested or a local authority:

Provided that no correction, which is likely to affect prejudicially any person, shall be made unless such person has been given a reasonable opportunity of making a representation in the matter.

(2) The Collector shall give immediate notice of any correction made in the award to all the persons interested.

(3) Where any excess amount is proved to have been paid to any person as a result of the correction made under sub- section (1), the excess amount so paid shall be liable to be refunded and in the case of any default or refusal to pay, the same may be recovered as an arrear of land revenue.]"

19. It is, thus, the submission of the petitioners that the period of six (6)

months as stated aforesaid has long passed and no mistake has been

corrected. It is also the submission of the petitioners that the plea of

the respondents that the petitioners can get their compensation

determined under Section 18 of the said Act is also misconceived as

the reference court would have to go by the date of the award of

13.11.1959 which is not the relevant date for determination of

compensation. It is pleaded that in such a case delay and laches

_____________________________________________________________________________________________

cannot come in the way of the petitioners which delay and laches are

in any case explained as the petitioner had no knowledge about the

proceedings. It has been urged that in any case the respondents

conduct also has to be examined in respect of delay & laches as the

scheme of the Act envisages the respondents to take possession but

admittedly no possession was taken over in the last half a century.

20. On the other hand, the respondents have rested their case on the

aspect of delay & laches in challenging the award and on the

principle that the award is only an offer of compensation after its

determination and the option is available to the petitioners to seek

enhancement of compensation.

21. In order to appreciate respective pleas learned counsels for the parties

have referred to various judgements.

22. Learned counsels for the petitioners referred to the Division Bench

judgement of this Court in Sandeep Kakkar & Ors. Vs. Union of

India & Ors. 111 (2004) DLT 291. It was observed in the said

judgement that once there is no notification issued under Section 4 of

the said Act qua the land of the petitioners any further action vis-à-

vis declaration under Section 6 of the said Act or passing of award

would be without jurisdiction and ultra vires. In the said case neither

possession was taken over nor award enforced nor any objections

raised by the respondents to the maintainability of the writ petition on

ground of delay, laches or waiver as no return had been filed.

23. Learned counsel also submitted by reference to Matwal Chand Vs.

Union of India 2004 (75) DRJ 461 that if the notification under

Section 4 of the said Act excluded evacuee property from acquisition _____________________________________________________________________________________________

and undisputedly the land was evacuee property, the notification did

not cover the said land and the declaration issued under Section 6 of

the said Act was consequentially illegal.

24. Learned counsels for the petitioners emphasized that it should not be

lost sight of that proceedings under the said Act are expropriatory in

nature and the provisions of the statute should, thus, be strictly

construed as it deprives a person of his land without consent in view

of the observations of the Supreme Court in Hindustan Petroleum

Corporation Limited Vs. Darius Shapur Chennai & Ors. JT 2005 (8)

SC 470.

25. On the other hand learned counsel for the LAC made elaborate

submissions to defend the conduct of the respondents and to canvass

the plea that despite the awards referring to some other notification

under Section 4 of the said Act, the notification should not be struck

down and at best the petitioners should be left to the remedy of

seeking enhancement of compensation under Section 18 of the said

Act by reference to the notifications of a subsequent date which

covered the land of the petitioners. In this behalf learned counsel

referred to the judgement of the Division Bench of this Court in Babu

Ram & Ors. Vs. Union of India 125 (2005) DLT 259. It was

submitted that the plea of Section 6 of the said Act being void ab

initio and non est in the eyes of law and thus delay and laches not

standing in the way of the petitioners had been rejected. A void order

may be challenged at any stage but once the order is enforced any

writ petition filed subsequent to such enforcement would give rise to

consideration of delay. Learned counsel sought to draw a distinction _____________________________________________________________________________________________

between a voidable order and a void one to advance the plea that the

award in question at best could be said to be voidable. In this behalf

learned counsel referred to the observations made in the following

paragraphs:

"17. Dealing with the question of invalidation of an order, H.W.R. Wade and C.F. Forsyth have in their treatise Administrative Law - Eighth Edition observe:

"The truth is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be „a nullity‟ and „void‟ but these terms have no absolute sense: their meaning is relative, depending upon the Court‟s willingness to grant relief in any particular situation. If this principle of legal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results."

18. We may also at this stage refer to the following passage from the decision Smit Vs. East Elloe Rural District Council (1956) AC 736, where Lord Radcliffe has emphasized the need for resorting to legal proceedings to establish the cause of invalidity of an order and to have it quashed for otherwise the order remains valid:

"An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the case of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."

19. As to what is void and what is voidable, has been subject matter of numerous judicial pronouncements but before we refer to some of those decisions, we may usefully extract the following passage from De Smith, Woolf and Jowell in their treatise Judicial Review of Administrative Action, Fifth Edition, para 5-044, where the concept of void and voidable has been summarized as follows:

"Behind the simple dichotomy of void and voidable acts (invalid and valid until declared to be invalid) lurk terminological and conceptual problems of excruciating complexity. The problems arose from the premise that if an act, order or decision is ultra vires in the sense of outside jurisdiction, it was said to be invalid, or null and void. If it is _____________________________________________________________________________________________

intra vires it was, of course, valid. If it is flawed by an error perpetrated within the area of authority or jurisdiction, it was usually said to be voidable; that is, valid till set aside on appeal or in the past quashed by certiorari for error of law on the face of the record."

26. Learned counsel, thus, submitted that the words of Lord Radcliffe as

upheld in Babu Ram & Ors. case (supra) that the impugned

notification does not "bear the brand of invalidity upon its forehead"

would equally apply to the present case.

27. Learned counsel also sought to draw strength from observations

made by a Division Bench of this Court in Santosh Kumar & Ors.

Vs. Union of India & Ors. 2006 VII AD (Delhi) 7 for the plea of

delay & laches. The said judgement relied upon the observations in

Aflatoon & Ors. Vs. Lieutenant Governor of Delhi & Ors. AIR 1974

SC 2077 where while observing that a valid notification under

Section 4 of the said Act was a sine qua non for initiation of

proceedings for property it was held that there was no reason why the

petitioner should wait to challenge the validity of such a notification

on the ground that the particulars of public purpose was not specified

therein. Another judgement referred to in that case is State of

Rajasthan & Ors. Vs. B.R. Laxmi & Anr. (1996) 6 SCC 445 on the

Supreme Court setting aside the exercise of power by the High Court

under Article 226 of the Constitution of India in case where an award

was passed and possession was taken. In that context it was observed

that though the order may be void, if a party does not approach the

Court within reasonable time which is always a question of fact and

have the order invalidated, it would amount to it having acquiesced

or waived by its conduct.

_____________________________________________________________________________________________

28. Learned counsel also referred to the recent judgement of the Supreme

Court in Om Parkash Vs. Union of India & Ors. 2010 (2) SCALE

153 to advance the plea of delay & laches.

29. Lastly learned counsel referred to his Bible of Roshanara Begum Vs.

Union of India AIR 1996 Delhi 206 to advance the plea not to quash

the awards. It was observed in para 121 as under:

"121. ....So, even if there arc glaring errors committed by the Collector in making the awards and there has been non- application of mind or even mechanical signing of the award by the Collector and before that by the authorised officer on behalf of the Government in giving prior approval would not mean that the awards have not been made within the stipulated period because if the awards are not acceptable to the aggrieved persons, they can always seek reference to the courts concerned for enhancement of the compensation. The awards so made which come into existence on signing of the awards by the Collector are valid and enforceable against the Government whose authorised officer had appended his signatures on the award giving the prior approval. That in our view would meet with the requirements of law and the petitioners have no locus standi to challenge the awards on the ground that prior approval has been given in a mechanical manner and the awards have been signed by the Collector also in a mechanical manner without application of mind. A large number of judgments lay down that non-service of notices under Sections 9, 10 or under Section 12 of the Act do not vitiate the acquisition proceedings. (See Ezra Vs Secretary of State (supra ),Kasturi Pillai Vs Municipal Council Air 1920 Mad 417, ShivdevSinh Vs State of Bihar & Others, AIR1963Pat201 , Prasanna Kumar Dass & Others Vs State of Orissa 1956 Orissa 114, Yousuf Begam Vs State of Andhra Pradesh & Others, AIR1969AP10 , P.KShaikh Vs Stale of West Bengal & Others, AIR1976Cal149 , Lakhbir Chand Vs Land Acquisition Collector, Delhi & Others, AIR1979Delhi53 , Slate of Punjab Vs Gurdial Singh & Another, MANU/PH/0130/1984, Manakchand Sarupchand Lunavat & Others Vs Stale of Maharashtra & Others, AIR1989Bom339 and and Dr.G.H.Grant Vs State of Bihar. [1965]3SCR576 .)"

30. Interestingly the aforesaid judgement in Roshanara Begum case

(supra) has also been referred to by learned counsels for the

petitioners to contend that paragraphs from the judgement cannot be _____________________________________________________________________________________________

read in isolation but have to be read as a whole and in that context

what was observed in paras 196 & 197 is stated to be apposite to the

present case, which read as under.

"196. It has been urged before us that the writ petition has been brought belatedly as Section 6 declaration had been issued in 1969 whereas the writ petition had been filed in 1981. It is not the case where any defect in the Section 4 notification is being highlighted like that the same was not published in accordance with the provisions of the Act. What has been pointed out is that the notification issued on 13th November 1959 did not at all pertain to the land in question as it was evacuee land at that time. If the notification on the face of it is not applicable to the land in question, the same is honest and any proceedings taken for acquiring the land on the basis of such a notification issued under Section 4. which did not pertain to the land in question, would be void ah initial and without jurisdiction.

197. In our view, once it is shown that there was no notification issued under Section 4 pertaining to the particular land, the subsequent proceedings being void, the petitioner would not be debarred from challenging such proceedings even belatedly. So, this petition is liable to be allowed."

31. We have examined the rival pleas. The factual matrix is not in

dispute. The awards in question are predicated on a notification

under Section 4 of the said Act dated 13.11.1959. The complete

awards not only use the date of the notification as 13.11.1959 in one

place but the same date is repeatedly referred to in the award. If one

may say so the thread which runs through the award is of the

notification dated 13.11.1959 and compensation has also been

computed on that basis. A question arises whether the same can be

said to be a mistake or even a non-application of mind which would

not call for interference by this Court but would relegate the parties

to have their compensation adjudicated under Section 18 of the said

Act? In our view the answer to the same is in the negative.

_____________________________________________________________________________________________

32. The respondents cannot be permitted to hide behind the plea of a

mere typographical error or mistake in the award nor the date of the

notification under Section 4 of the said Act could be said to be

inadvertently incorrectly recorded. The very compensation has been

calculated on that basis as on 1959. The petitioners are right in

contending that the mistake, if any, had to be corrected in terms of

Section 13A of the said Act. That is the procedure prescribed under

the said Act and must be strictly followed. We are fortified in our

view because of the observations made in Hindustan Petroleum

Corporation Limited case (supra) that the provisions of the said Act

being expropriatory in nature must be strictly construed. We cannot

ignore the fact that though the right to the land is no more a

fundamental right but it remains a constitutional right under Article

300A of the Constitution of India. The procedure by which the LAC

hears parties and frame awards requires it to be vetted by the higher

authorities. None of these authorities deemed it fit to scrutinize the

papers carefully enough though the mistake was apparent. Not only

that the so called mistake was never sought to be corrected by

exercising rights under Section 13A of the said Act. In the third case

such a right was exercised but only to include an element of

compensation which was excluded while calculating compensation

for trees.

33. The respondents cannot be permitted to plead in such a case where

Section 4 notification does not even pertain to the land of the

petitioners that the petitioners should be relegated to their remedy

_____________________________________________________________________________________________

under Section 18(1) of the said Act of seeking enhancement of

compensation. The Section 18 (1) of the said Act reads as under:

"PART III

Reference to Court and Procedure Thereon

18. Reference to Court. - (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested."

34. A reading of the aforesaid provision shows that on making the

reference the Court would deal with objections as to measurement of

land, amount of compensation, the person to whom it is payable or

apportionment of compensation. The said amount of compensation

has to relate to the date of acquisition which is the notification under

Section 4 of the said Act. It is the moot point whether the Court can

really modify the date itself with reference to which the

compensation has to be calculated.

35. The plea of the petitioners is fortified by the conduct of the

respondents in not only an award being made on the premise of a

notification under Section 4 of the said Act which does not pertain to

the land of the petitioners but to the factum of the respondents having

taken no steps to take possession of the land. The procedure under

the said Act is to be completed with possession of the land being

taken as the purpose of acquisition is a public purpose. The idea is

not to complete paper work to acquire the land and thereafter sit quiet

for half a century. Thus, there is force in the contention of the

petitioners even on this account.

_____________________________________________________________________________________________

36. If the factum of the awards being predicated on a notification under

Section 4 of the said Act not pertaining to the land of the petitioners

and compensation being calculated accordingly is coupled with the

failure of the respondents to take any steps to take possession of the

land for almost half a century, we have no doubt that the only result

can be to quash the awards in question insofar as the petitioners are

concerned. The Bible of the respondents, Roshanara Begum case

(supra), in fact, supports the case of the petitioners if the observations

in paras 196 & 197 are taken into account. Learned counsels for the

respondents has tried to distinguish this case on the basis that in that

case there was no Section 4 notification while in the present case

there is a Section 4 notification though the same does not form the

basis of the award. We see no difference on account of the same

since the award is predicated on a Section 4 notification which does

not cover the land of the petitioners.

37. We are, thus, of the view that the impugned awards dated 17.9.1986,

& 19.9.1986 are liable to be quashed and set aside qua the petitioners

in view of the facts set out hereinabove and the Rule is made absolute

leaving the parties to bear their own costs.

SANJAY KISHAN KAUL, J.

MARCH 16, 2010                                          VEENA BIRBAL, J.
b'nesh

_____________________________________________________________________________________________