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:

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 pet