# Anurag Srivastava & Ors v. National Highway Authority of India

- **Citation:** (2019) 2 ILRA 1814
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-06
- **Case number:** Writ C- No. 107 of 2019
- **Bench:** Pradeep Kumar Singh Baghel, Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anurag-srivastava-ors-v-national-highway-authority-of-india-44678
- **Pages:** 9

## Headnote

A. National Highway Act, 1956 - Section
3G (3) - Acquisition - Non-compliance of
procedure - Gazette notification shows
that notice is issued under section 3D
not under section 3G - Averment in
pleading that it is by mistake instead of
section
3G,
section
3D
has
been
published, is not acceptable in the
absence of corrigendum - Impugned
award
held
to
be
passed
without
following
procedure
prescribed
u/s
3G(3) of the Act. (Para 20, 23 & 26)

B.
National
Highway
Act,
1956
-
Procedure of acquisition - Effect of
violation
-
Under
scheme
of
Act,
notification has to be published in three
stages - First u/s 3A(2), second u/s
3D(2) and third u/s 3G(3) - Initial two
notice issued, but no third stage notice
has been brought on record - Prescribed
procedure not followed. (Para 21, 22 & 26)

Held :-The scheme of the amendment
brought by the Act 16 of 1997, whereby
Sections 3A to 3J have been inserted in the
Act, 1956, clearly shows that the notification
has to be published at three stages: first,
under Section 3A(2) declaring intention to
acquire the land and inviting objections;
secondly, under Section 3D(2) for declaration
to the effect that the land should be acquired
and on such declaration the land vests
absolutely in the Central Government; and
thirdly, under Section 3G(3) a public notice is
required to be published in two local
newspapers inviting the claims from all the
persons interested in the land.

Writ Petition allowed (E-1)

Case relied on :-
Sharda Yadav Vs U.O.I. & ors. (Writ-C No.
30046 of 2014, decided on 18/07/2014).
Case referred :-
Whirlpool Corp. Vs Registrar of Trade Marks
Mumbai & ors. (1998) 8 SCC 1.

## Text

1814 INDIAN LAW REPORTS ALLAHABAD SERIES
whether a road existed in between the
petitioners' plot no.523 and the rasta in
plot no.576.

12. In the event the Collector finds
that there is no rasta on the map and if he
finds that that there is no ingress and
egress for the petitioners from plot no.523
then he shall apply the provisions of
section 52-A of the U.P. Consolidation of
Holdings Act, 1953 and carve out a chak
road.

13. With these observations, the writ
petition is finally allowed.
----------

(2019)10ILR A 1814

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2019

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
THE HON'BLE PANKAJ BHATIA, J.

Writ C- No. 107 of 2019

Anurag Srivastava & Ors. ...Petitioners
Versus
National Highway Authority of India
Through Its Chairman & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Shyam Narain Rai, Sri Prashant
Mishra, Sri Ravi Kant.

Counsel for the Respondents:
A.S.G.I., C.S.C., Sri Neeraj Dube.

A. National Highway Act, 1956 - Section
3G (3) - Acquisition - Non-compliance of
procedure - Gazette notification shows
that notice is issued under section 3D
not under section 3G - Averment in
pleading that it is by mistake instead of
section
3G,
section
3D
has
been
published, is not acceptable in the
absence of corrigendum - Impugned
award
held
to
be
passed
without
following
procedure
prescribed
u/s
3G(3) of the Act. (Para 20, 23 & 26)

B.
National
Highway
Act,
1956
-
Procedure of acquisition - Effect of
violation
-
Under
scheme
of
Act,
notification has to be published in three
stages - First u/s 3A(2), second u/s
3D(2) and third u/s 3G(3) - Initial two
notice issued, but no third stage notice
has been brought on record - Prescribed
procedure not followed. (Para 21, 22 & 26)

Held :-The scheme of the amendment
brought by the Act 16 of 1997, whereby
Sections 3A to 3J have been inserted in the
Act, 1956, clearly shows that the notification
has to be published at three stages: first,
under Section 3A(2) declaring intention to
acquire the land and inviting objections;
secondly, under Section 3D(2) for declaration
to the effect that the land should be acquired
and on such declaration the land vests
absolutely in the Central Government; and
thirdly, under Section 3G(3) a public notice is
required to be published in two local
newspapers inviting the claims from all the
persons interested in the land.

Writ Petition allowed (E-1)

Case relied on :-
Sharda Yadav Vs U.O.I. & ors. (Writ-C No.
30046 of 2014, decided on 18/07/2014).
Case referred :-
Whirlpool Corp. Vs Registrar of Trade Marks
Mumbai & ors. (1998) 8 SCC 1.
(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)

1. The petitioners have instituted
this writ proceedings aggrieved by an
award dated 19th September, 2018 passed
2 All. Anurag Srivastava & Ors. Vs National Highway Authority of India Through Its Chairman & Ors. 1815
by the second respondent in respect of
their land which has been acquired under
the provisions of the National Highways
Act, 1956 .

2. The facts are these: the petitioner
no. 3 along with her two sons, namely,
Anurag Srivastava and Arvind Srivastava,
petitioner nos. 1 and 2 respectively, are
the owners of Plot Nos.257, 448 and 450
situated in Village Babura Bhairodayal,
Tehsil Lalganj, District Mirzapur. They
claim that they have residential house
over Plot Nos. 448-Kha and 450. The
residential house of the petitioners has a
garden with various varieties of trees
planted in it. Their residential house is
adjacent to the main road. The petitioners
claim that they are not using Plot Nos.
448, 257 and 450 for any agricultural
purpose. Plot Nos. 448 and 450 were chak
out during the consolidation proceedings
due to their non-agricultural usage. It is
stated that over Plot No. 257 the
petitioners have constructed a permanent
building, which is used as servant quarter
and for keeping animals i.e. cows,
buffaloes, etc.

3. The respondent no. 1, the
National Highway Authority of India2,
has undertaken a project for widening of
National Highway No. 7, from 98.640
Kms. to 140.265 Kms. in district
Mirzapur (Varanasi- Hanumana Section).
In this regard a notification under Section
3A of the Act, 1956 was published in the
Gazette of India, Extraordinary, on 15th
January, 2018. The petitioners' Plot Nos.
257, 448 and 450 admeasuring 0.0236,
0.0450 and 0.0260 hectares respectively
were included in the said notification
declaring the intention to acquire the land
shown in the notification. The said
notification
was
published
in
two
newspapers, namely, 'Dainik Jagran' and
'Times of India' on 03rd February, 2018.
Later the notification under Section 3D of
the Act, 1956 was published on 02nd
April, 2018.

4. The grievance of the petitioners is
that the respondents in hot haste without
proceeding
in
accordance
with
the
provisions of Section 3G(3) of the Act,
1956
proceeded
to
determine
the
compensation and passed an award dated
19th September, 2018. It is stated that no
publication was made in any newspaper
inviting objections from the persons and
the petitioners whose land was being
acquired and they have not been paid
adequate compensation.

5. It is averred in the writ petition
that without giving any opportunity of
hearing to the petitioners their land has
been
acquired
that
too
without
determining the adequate compensation
for the land of the petitioners. The
petitioners
claim
that
ignoring
the
valuation of the land, which is more than
Rs.6,500/- per square meter as per the
circle rate prepared by the District
Magistrate,
a
meager
amount
of
compensation at the rate of Rs.218/- per
square meter has been awarded. It is
stated that the petitioner's land has been
treated to be agricultural land ignoring the
evidence that a pucca house is standing
over it and the land is being used for nonagricultural purposes and it is located
within a short distance from the road. The
petitioners have brought on the record the
photographs
to
demonstrate
that
a
permanent structure is existing over the
acquired land.

6. A counter affidavit has been filed
on behalf of the first respondent. The
1816 INDIAN LAW REPORTS ALLAHABAD SERIES
stand taken by the respondent is that the
petitioners' land has been acquired for the
public interest. It is stated that on the plots
of the petitioners there are trees. It is
further stated that in the revenue record
no land has been mentioned as nonagricultural land. The land in question has
been acquired for the construction of four
lane and a joint survey has been made on
the acquired land of the petitioners by
Study
Point
Samiti,
Lucknow
and
employees
of
the
tehsil.
The
compensation awarded to the petitioners
is said to be adequate.

7. In reply to the averments made in
Paragraph-12 of the writ petition that
without publishing any notice under the
provisions of Section 3G(3) of the Act,
1956 the respondents have proceeded to
determine the compensation, a vague and
evasive reply has been made in the
counter
affidavit.
However,
a
supplementary counter affidavit has been
filed on behalf of the first respondent,
wherein it has been mentioned that
inadvertently in the notification dated
29th April, 2018 instead of Section 3G(3)
the provision has been mentioned as
3D(1) and it was a mistake.

8. We have heard Sri Ravi Kant,
learned Senior Advocate, assisted by Sri
Shyam Narain Rai, learned counsel for
the petitioners, and Sri Neeraj Dube,
learned counsel for the first respondent-
NHAI.

9.

Learned
counsel
for
the
petitioners submitted that no notice under
Section 3G(3) of the Act, 1956 has been
published
and
the
authorities
have
determined the compensation without
inviting objection. The notice under
Section 3G(3) of the Act, 1956 is
mandatory, hence the entire proceeding
for determining the compensation has
caused serious prejudice to the interest of
the petitioners. It was urged that the
compensation awarded to the petitioners
is totally inadequate and upon erroneous
assumption, therefore, it is arbitrary
exercise of power. Learned counsel for
the petitioners has placed reliance on a
judgment of a Division Bench of this
Court in the case of Sharda Yadav v.
Union of India and others, Writ-C No.
30046 of 2014, decided on 18th July,
2014.

10. Sri Neeraj Dube, learned counsel
for the first respondent, submitted that the
notice under Section 3G(3) of the Act,
1956 was published on 29th April, 2018,
but by mistake in the notice Section 3D
was mentioned.

11. We have considered the
submissions advanced by learned counsel
appearing for the parties and perused the
record.

12. Indisputably, the petitioners are
owners of Plot Nos. 257, 448 and 450,
which have been acquired by the first
respondent for widening of National
Highway. The Act, 1956 has been enacted
to provide for the declaration of certain
highways to be national highways and for
matters connected therewith. By the Act
16 of 1997, Sections 3, 3A, 3B, 3C, 3D,
3E, 3F, 3G, 3H, 3I and 3J have been
inserted in the Act, 1956. Section 3A
empowers the Central Government to
declare its intention to acquire any land,
which is required for the building,
maintenance, management or operation of
a national highway or part thereof, for
public
purpose.
A
notification
is
published in the official gazette declaring
2 All. Anurag Srivastava & Ors. Vs National Highway Authority of India Through Its Chairman & Ors. 1817
the intention to acquire such land. Subsection (2) of Section 3A provides that in
the notification a brief description of the
land is also to be mentioned. In addition
to the official gazette, as per sub-section
(3) of Section 3A the notice is also to be
published in two local newspapers.
Section 3B empowers the authorities to
make inspection, survey, measurement,
valuation, set out boundaries, etc. Section
3C gives an opportunity to the land
owners to file their objection within
twenty-one days from the date of
publication of the notification under subsection (1) of Section 3A. The objection,
so made, is considered by the competent
authority and after giving an opportunity
the competent authority can either allow
or disallow the objections. Section 3D
provides that if after the notification
published under sub-section (1) of Section
3A no objection is received by the
competent authority within the specified
period or where the objection has been
filed and it has been disallowed by the
competent authority, a report shall be
submitted by the competent authority to
the Central Government, which shall
declare by notification in the official
gazette that the land should be acquired
for the purpose mentioned in sub-section
(1) of Section 3A. Sub-section (2) of
Section 3D provides that after publication
of declaration in this section i.e. Section
3D(1), the land vests in the Central
Government free from all encumbrances.
Section 3E says that once the land is
vested in the Central Government and the
amount determined by the authority under
Section 3G has been deposited, the
competent authority may issue a notice to
the owner, who is in possession, to
surrender or deliver the possession to the
competent authority or any person duly
authorized by it. Section 3F gives a right
to the authority to carry out maintenance,
management or building of the national
highways.

13.

Under
Section
3G
the
compensation is determined in respect of
the land which is acquired. Sub-section
(3) of Section 3G provides that before
proceeding to determine the amount the
competent authority shall give a public
notice in two local newspapers, one of
which will be in a vernacular language,
inviting claims from all persons interested
in the land to be acquired.

14. Since the present dispute is in
respect of the requirement of publication
of notice, Sections 3D and 3G of the Act,
1956, which are relevant for the purpose,
are extracted below:

"3D.
Declaration
of
acquisition.--(1) Where no objection
under sub-section (1) of section 3C has
been made to the competent authority
within the period specified therein or
where
the
competent
authority
has
disallowed the objection under subsection (2) of that section, the competent
authority shall, as soon as may be, submit
a report accordingly to the Central
Government and on receipt of such
report, the Central Government shall
declare, by notification in the Official
Gazette, that the land should be acquired
for the purpose or purposes mentioned in
sub-section (1) of section 3A.

(2) On the publication of the
declaration under sub-section (1), the
land shall vest absolutely in the Central
Government free from all encumbrances.

(3) Where in respect of any
land, a notification has been published
under sub-section (1) of section 3A for its
acquisition but no declaration under sub-
1818 INDIAN LAW REPORTS ALLAHABAD SERIES
section (1) has been published within a
period of one year from the date of
publication of that notification, the said
notification shall cease to have any effect:

Provided that in computing the
said period of one year, the period or
periods during which any action or
proceedings to be taken in pursuance of
the notification issued under sub-section
(1) of section 3A is stayed by an order of
a court shall be excluded.

(4) A declaration made by the
Central Government under sub-section
(1) shall not be called in question in any
court or by any other authority."

"3G. Determination of amount
payable as compensation.-- (1) Where
any land is acquired under this Act, there
shall be paid an amount which shall be
determined by an order of the competent
authority.

(2) Where the right of user or
any right in the nature of an easement on,
any land is acquired under this Act, there
shall be paid an amount to the owner and
any
other
person
whose
right
of
enjoyment in that land has been affected
in any manner whatsoever by reason of
such acquisition an amount calculated at
ten per cent. of the amount determined
under sub-section (1), for that land.

(3)
Before
proceeding
to
determine the amount under sub-section
(1) or sub-section (2), the competent
authority shall give a public notice
published in two local newspapers, one of
which will be in a vernacular language
inviting claims from all persons interested
in the land to be acquired.

(4) Such notice shall state the
particulars of the land and shall require
all persons interested in such land to
appear in person or by an agent or by a
legal practitioner referred to in subsection (2) of section 3C, before the
competent authority, at a time and place
and to state the nature of their respective
interest in such land.

(5) If the amount determined by
the competent authority under sub-section
(1) or sub-section (2) is not acceptable to
either of the parties, the amount shall, on
an application by either of the parties, be
determined by the arbitrator to be
appointed by the Central Government.

(6) Subject to the provisions of
this Act, the provisions of the Arbitration
and Conciliation Act, 1996 (26 of 1996)
shall apply to every arbitration under this
Act.

(7) The competent authority or
the arbitrator while determining the
amount under sub-section (1) or subsection (5), as the case may be, shall take
into consideration--

(a) the market value of the land
on the date of publication of the
notification under section 3A;

(b) the damage, if any, sustained
by the person interested at the time of
taking possession of the land, by reason of
the severing of such land from other land;

(c) the damage, if any, sustained
by the person interested at the time of
taking possession of the land, by reason of
the acquisition injuriously affecting his
other immovable property in any manner,
or his earnings;

(d) if, in consequences of the
acquisition of the land, the person
interested is compelled to change his
residence or place of business, the
reasonable expenses, if any, incidental to
such change."

15. From a simple reading of
Sections 3D and 3G of the Act, 1956 it is
evident that the purposes of publication of
the notice in both the sections i.e.
Sections 3D and 3G are entirely different.
2 All. Anurag Srivastava & Ors. Vs National Highway Authority of India Through Its Chairman & Ors. 1819
Under Section 3D there is a declaration of
acquisition and after the notification is
made in the official gazette, the land vests
absolutely in the Central Government free
from all encumbrances. After acquiring
the land, the next step is determination of
compensation.
Section
3G(3)
again
requires
that
before
proceeding
to
determine
the
compensation,
the
competent authority shall give a public
notice in two local newspapers, one in
vernacular language, inviting claims from
all persons interested in the land to be
acquired. Sub-section (4) of Section 3G
clearly provides that the notice shall give
the particulars of the land and an
opportunity is to be afforded to the land
owner to appear in person or by his agent
or by a legal practitioner before the
competent authority before determining
the compensation.

16. In the present case, in
Paragraph-10 of the writ petition the
petitioners have made the following
averments:

"10. That in hot haste without
proceeding in accordance with the
provisions of Section 3G(3) of the Act of
1956, the respondents have proceeded to
determine the compensation by means of
an Award dated 19.9.18. It is stated that
no
publication
was
made
in
any
newspapers
inviting
objections
from
persons and the petitioners whose land
was being acquired for proper valuation
of his land which was being acquired
against the valuation of their land
proposed by the respondents so that
adequate compensation be determined
and paid to them. There was no
publication in any newspapers or any
local newspaper notifying the petitioners
or persons whose land was being
acquired of the date, time and place
where the objections had to be made
against the proposed valuation which was
being made by the respondents of the land
sought to be acquired for expansion of the
National
Highway
by
means
of
notification
dated
15.01.2018
and
03.02.2018."

17. The first respondent in its
counter affidavit has denied the said
statement and has made an evasive reply.
In Paragraph-11 of the counter affidavit it
is stated that a gazette notification under
Section 3D(2) [/kkjk 3?k] mi/kkjk (2)]
was made on 02nd April, 2018 and
thereafter under Section 3G(3) before
determination of compensation the notice
has been published in two newspapers in
'Amar Ujala' and 'Indian Express' on 29th
April, 2018, which have been brought on
record as CA-1 to the counter affidavit.
Paragraph-11 of the counter affidavit
reads as under:

"11.
That
the
contents
of
paragraph 10 of the writ petition are not
admitted. It is further stated that the
notification no. 1316 of the acquire land
of
village
Babura
Bhairav
Dayal
published in the Gazette under Section 3D
on 2.4.2018, thereafter under Section
3G(3) of NH Act before determination of
the
compensation
notice
has
been
published in two newspaper Amar Ujala
and India Express on 29.4.2018. A true
copy of the Gazette notification published
on 29.04.2018 is being filed for kind
perusal
of
this
Hon'ble
Court
as
Annexure No. CA-1 to this affidavit."

18. From a perusal of Paragraph-11
of the counter affidavit it is clear that no
specific reply has been given with regard
to issue raised by the petitioners that no
1820 INDIAN LAW REPORTS ALLAHABAD SERIES
notice was published under Section
3G(3).

19. Later a supplementary counter
affidavit has been filed by the first
respondent wherein it has been admitted
that by mistake in the notice under
Section 3G(3), Section 3D has been
mentioned. Paragraphs-3 and 4 of the
supplementary
counter
affidavit
are
reproduced hereunder:

"3. That the under Section
3D(1) of the NH Act, 1956 Gazette
notification
has
been
published
on
2.4.2018, thereafter under provision of
3G(3) of the Act notification has been
published in two newspaper Amar Ujala
and Indian Express on 29.4.2018, but due
to mistake of the publication it has been
shown in the newspaper Section 3D(1)
instead of 3G(3) of the Act.

4. That in para 11 of the main
counter affidavit (sworn on 24.02.2019)
correct provision of Section 3G(3) of NH
Act
1956
has
been
mentioned
in
accordance with which publication in two
local newspaper is done. However, in the
notification dated 29.4.2018 instead of
mentioning correct provision of 3G(3),
the provision has been mentioned as
3D(1). Accordingly this Supplementary
Counter affidavit taken on record treating
part of para 11 of the main counter
affidavit."

20. From a perusal of Paragraph-11
of the counter affidavit it is evident that
an incorrect statement has been made that
notice under Section 3G(3) of the Act,
1956 was published. In support of the said
statement the respondents have brought
on the record a gazette notification as CA1 to the counter affidavit. A perusal of the
said gazette notification shows that it is a
notice under Section 3D and not under
Section 3G as mentioned in Paragraph-11
of
the
counter
affidavit.
Later
a
supplementary counter affidavit has been
filed explaining that in the gazette
notification it has been wrongly shown as
Section 3D. In fact, it should be Section
3G(3). We are of the opinion that the said
explanation cannot be accepted. From a
perusal of the aforesaid pleadings we are
constrained to observe that the officers of
the NHAI have tried to evade the issue
and it was not fair on their part to give an
evasive and vague reply in their counter
affidavit. The NHAI is a statutory
authority and it is not expected from it to
conduct itself like an ordinary litigant. It
was its duty to place the correct facts
before
the
Court
fairly.
In
the
supplementary counter affidavit it has
been admitted that by mistake instead of
Section 3G(3), Section 3D has been
mentioned.

21. The scheme of the amendment
brought by the Act 16 of 1997, whereby
Sections 3A to 3J have been inserted in
the Act, 1956, clearly shows that the
notification has to be published at three
stages:
first,
under
Section
3A(2)
declaring intention to acquire the land and
inviting
objections;
secondly,
under
Section 3D(2) for declaration to the effect
that the land should be acquired and on
such declaration the land vests absolutely
in the Central Government; and thirdly,
under Section 3G(3) a public notice is
required to be published in two local
newspapers inviting the claims from all
the persons interested in the land.

22. It is admitted case that only two
notices
have
been
published
under
Sections 3A and 3D of the Act, 1956. No
other notice has been brought on the
2 All. Anurag Srivastava & Ors. Vs National Highway Authority of India Through Its Chairman & Ors. 1821
record by the authorities along with the
counter affidavit.

23. As regards the averment that in
the gazette notification by mistake in
stead of Section 3G Section 3D has been
published, it is not acceptable. If there
was a mistake in the publication in two
newspapers on 29th April, 2018, the
respondents ought to have issued a
corrigendum. No such step has been taken
to correct the mistake.

24. A Division Bench of this Court
in the case of Sharda Yadav (supra) has
considered the similar facts. In that case
also, the notice under Section 3G was not
issued. The Court held as under:

"Having
considered
the
submissions raised, we find that there is a
statutory obligation for publishing the
notice in two newspapers for the purpose
of award of compensation under Section
3-G of the Act. The petitioner has
categorically stated in paragraph 20 of
the writ petition that no such notice was
ever published nor any opportunity was
given to the petitioner to file any
objections.

Sri Mehrotra submits that the
notification dated 3.11.2011 should be
considered to be a notification published
in the newspaper under Section 3-G of the
Act.

We are afraid that the said
notification is a notification under Section
3-D and is not a notification under
Section 3-G of the Act. The averment
contained in paragraph 28 of the counter
affidavit is, therefore, misleading. The
respondents, therefore, have not complied
with a statutory provision containing the
principles of natural justice engrafted in
the Act itself. It is settled law that if an act
requires to be performed after publication
of the notice in the newspaper then it is
not a mere formality and the matter
relating
to
award
of
compensation
dealing with substantive right of a tenure
holder cannot be defeated by delivering
the award without complying with the
aforesaid provision. Once it is held that
the award is in violation of principles of
natural justice then it is not necessary for
this Court to relegate the petitioner to the
remedy under the 1996 Act. The award
itself being contrary to the provisions of
Section 3-G and in contravention thereof,
we have no hesitation to hold that the said
act of the authority was in complete
disregard of the statutory provisions
resulting in violation of principle of
natural justice. The question, therefore,
availing of any alternative remedy by the
petitioner on the facts of this case does
not arise and we are supported in our
view by the law pronounced by the Apex
Court
in
the
case
of
Whirlpool
Corporation Vs. Registrar of Trade
Marks, Mumbai and others, reported in
1998 (8) SCC Page 1.

The award which has been
rendered in relation to the agricultural land of
the petitioner is clearly in violation of Section
3-G of the Act as the award itself also
nowhere recites that any such notice was
published in the newspaper as required in the
said provision. Consequently, the impugned
award dated 30.4.2013 to the said extent is
quashed."

25. We find that the facts of this
case are squarely covered by the law laid
down by the co-ordinate Bench decision
of this Court in Sharda Yadav (supra).
Similar argument was raised in that case
also that notice under Section 3D be
treated as notice under Section 3G. In the
present case, it is admitted case of the
1822 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents that by mistake in the notice
under Section 3G(3), Section 3D was
mentioned but no corrigendum has been
issued. Moreover, the respondents have
not brought on the record the notice dated
29th April, 2018 in spite of filing a
supplementary counter affidavit.

26. For all the reasons mentioned above,
we find that the award dated 19th September,
2018 passed by the second respondent under
Section 3G of the Act, 1956 has been passed
without following the procedure prescribed
under Section 3G(3) of the Act, 1956, hence it
is quashed to the said extent. We grant liberty
to the petitioners to file objection in terms of
Section 3G(3) of the Act, 1956 before the
competent authority in respect of their +claim
that a construction is in existence and their
land is non-agricultural. The competent
authority shall consider their objections and
pass the award in accordance with law after
furnishing opportunity to the petitioners. The
said exercise be undertaken expeditiously,
preferably within four months from the date of
communication of this order.

27. Accordingly, the writ petition is
allowed. No order as to costs.
----------
(2019)10ILR A 1822

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2019

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.

Writ C No. 23471 of 2019

Santu ...Petitioner
Versus
State of U.P. & Ors. ...Respondents.

Counsel for the Petitioner:
Sri R.P.S. Chauhan

Counsel for the Respondents:
C.S.C., Sri Arun Kumar Srivastava

A. U.P. Zamindari Abolition and Land
Reforms Act,1950 - Section 331(3) read
with Order 43 Rule 1 C.P.C. - order
rejecting recall application on the ground
of delay is appealable under Order 43
Rule 1 CPC before the Board of RevenueAlternative remedy available.

Writ Petition rejected (E-9)

(Delivered by Hon'ble Anjani Kumar
Mishra, J.)

1. Heard Shri R.P.S. Chauhan, learned
counsel for the petitioner and Shri Arun
Kumar Srivastava for the Gaon Sabha,
respondent no.5 as also learned Standing
Counsel for the State-respondents.

2. The instant writ petition has been
filed seeking a writ of certiorari for quashing
the order dated 10.04.2019 passed by the
Additional Commissioner (Judicial) Bareily
Division, Bareilly refusing to condone the
delay in filing a restoration application for
recall of an order dated 27.01.2010, whereby
an appeal filed by the petitioner had been
dismissed for default.

3. The petitioner filed a suit under
Section 229B of the U.p Zamindari Abolition
and Land Reforms Act for declaration
claiming on the basis of a registered will
executed in his favour by one Nanuki.

4. The trial Court dismissed the suit vide
judgement and decree dated 19.12.2005.

5. The petitioner preferred an
appeal, which was dismissed for default
on
27.01.2010.