REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 6850-6851 OF 2003

KENDRIYA KARAMCHARI SEHKARI

GREH NIRMAN SAMITI LTD., NOIDA … APPELLANT

VERSUS

STATE OF U.P. & ANR. … RESPONDENTS

WITH

CIVIL APPEAL NOs. 6854-6855 OF 2003

V. SINGH … APPELLANT

VERSUS

STATE OF U.P. & ANR. … RESPONDENTS

WITH

CIVIL APPEAL NOs. 6852-6853 OF 2003

VIJAY SINGH … APPELLANT

VERSUS

STATE OF U.P. & ANR. … RESPONDENTS

WITH

CIVIL APPEAL NOs. 6856-6857 OF 2003

CHARAN SINGH … APPELLANT

VERSUS

STATE OF U.P. & ANR. … RESPONDENTS

WITH

CIVIL APPEAL NOs. 6858-6859 OF 2003

CHARAN SINGH … APPELLANT

VERSUS

STATE OF U.P. & ANR. … RESPONDENTS

WITH

CIVIL APPEAL NO. 6860 OF 2003

AJAY SINGH … APPELLANT

VERSUS

STATE OF U.P. & ANR. … RESPONDENTS

WITH

CIVIL APPEAL NO. 6861 OF 2003

A. SINGH … APPELLANT

VERSUS

STATE OF U.P. & ANR. … RESPONDENTS

WITH

CIVIL APPEAL NO. 6862 OF 2003

RAN SINGH … APPELLANT

VERSUS

STATE OF U.P. & ANR. … RESPONDENTS

J U D G M E N T

2

C.K. THAKKER, J.

1. In the present group of appeals, the

appellants have challenged the judgment and

final order dated September 03, 2001 passed by

the High Court of Judicature at Allahabad in

Civil Miscellaneous Writ Petition No. 31958 of

2001 and companion matters as also the order

dated January 04, 2002 passed in Review Civil

Miscellaneous No. 85091 of 2001 and cognate

matters.

2. Since common questions of fact and law

have been involved in all these appeals, it is

appropriate to deal with and decide them by a

common judgment.

3. To appreciate the controversy raised

by the appellants, it may be appropriate to

narrate the facts of the case in Civil Appeal

Nos. 6850-6851 of 2003. According to the

Kendriya Karamchari Sehkari Grah Nirman Samiti

Ltd.(‘the Samiti’ for short)-appellant herein,

proceedings under Land Acquisition Act, 1894

3

(hereinafter referred to as ‘the Act’) for

acquisition of 325.353 acres of land of village

Chhalera, Pargana & Tehsil Dadri, District

Gautam Budh Nagar had been initiated. The land

was sought to be acquired for public purpose,

viz., Planned Development of New Okhla

Industrial Development Authority (NOIDA),

Gautam Budh Nagar. Preliminary notification

under Section 4 read with Section 17 of the Act

by applying urgency clause, was issued on

October 30, 1987. It was published in the

Official Gazette on February 27, 1988. The

final notification under Section 6 read with

Section 17 of the Act was issued on June 12,

1989 and published in Official Gazette on

December 14, 1989. Notices were published in

the newspaper indicating acquisition of land of

various land-owners on February 05, 1990. Award

was made by the Special Land Acquisition

Officer, NOIDA, District Ghaziabad in terms of

Dispute No. 135 of 1988-92 on February 04,

1992. According to the appellant, the Land

4

Acquisition Officer awarded compensation to the

land-owners at the rate of Rs.43.64 ps. per sq.

yard. It may be stated that according to the

appellant-Samiti, it purchased a part of the

land on November 15, 1990. The land was

transferred in the name of the Samiti. It is

the case of the appellant Samiti that several

land-owners were not satisfied with the amount

of award offered by the Land Acquisition

Officer and they sought Reference under Section

18 of the Act. More than 50 such References,

therefore, came up for consideration before the

Reference Court. The Court of the Additional

Upper District Judge-X, Ghaziabad by judgment

and order dated August 28, 2000 enhanced the

compensation awarded to the land-owners by

holding that the land-owners were entitled to a

sum of Rs.148.75 ps. per sq. yd. with 30%

solatium and 12% interest per annum. It was

also observed that the amount paid pursuant to

the award passed by the Land Acquisition

Officer would be adjusted while making payment

5

by the authorities as per the order in

Reference.

4. So far as the appellant-Samiti is

concerned, it could not make Reference along

with other land-owners under Section 18 of the

Act. It, therefore, filed an application

through its President Charan Singh, son of late

Budh Singh on September 06, 2000 to the

Additional District Magistrate (Land

Acquisition), Gautam Budh Nagar under Section

28A of the Act, inter alia, praying therein

that the land of the applicant had been

acquired for public purpose, the applicant, who

was the President of the Samiti, had purchased

the land from the Samiti in December, 1990 and

his name had also been entered in the Revenue

Record. It was also stated by him that he could

not challenge the Award passed by the Land

Acquisition Officer. The Reference Court,

however, decided the Reference in other cases

and granted enhanced compensation. The same

benefit, therefore, should be allowed to him

6

also on the basis of the order passed by the

Reference Court. The said application was made

on September 06, 2000 i.e. within a period of

three months from the date of decision in the

Reference.

5. The main grievance of the applicant

was that though in the light of the decision of

Reference Court allowing the Reference and

granting enhanced compensation to other land-

owners, the appellant also ought to have been

granted the similar benefit and he ought to

have been paid additional amount as held by the

Reference Court, no decision had been taken by

the Additional District Magistrate and his

application was kept pending. According to the

applicant, probably it was done keeping in view

the fact that being aggrieved by the order

passed by the Reference Court, the authorities

preferred appeal being FAO No. 456 of 2001,

etc. and the order passed by the Reference

Court was challenged in the High Court. It also

appears that the High Court entertained those

7

appeals and also passed interim order of stay

on September 17, 2001. By the said order,

operation of the order passed by the Reference

Court was stayed on condition that NOIDA would

deposit the entire amount awarded under the

Reference within two months from the date of

the order. The claimants were permitted to

withdraw 25% of such amount without furnishing

security and further 25% on furnishing

security. The remaining amount (50%) was

ordered to be invested in Fixed Term Deposit in

a Nationalized Bank.

6. The appellant also felt that the

action of keeping pending the application of

the appellant instituted under Section 28A of

the Act was taken in pursuance of policy

decisions taken by the State vide two

Government Orders, dated January 14, 1994 and

June 13, 2001. According to the appellant, the

Government Orders provided that if an order

passed by a Reference Court enhancing

compensation is challenged by the authorities

8

and the matter is pending before a High Court

or the Supreme Court and an application under

Section 28A has been made by the persons who

had not sought Reference, such applications

should be kept pending till the matter is

finally disposed of by the High Court as well

as by the Supreme Court and no enhanced

compensation should be paid to the applicants

under Section 28A of the Act at the enhanced

rate.

7. The appellant being aggrieved by the

non-disposal of his application under Section

28A of the Act, because of Government Orders,

challenged the validity of both the Government

Orders dated January 14, 1994 and June 13, 2001

by filing Writ Petition No. 31958 of 2001 in

the High Court of Judicature at Allahabad.

Similar writ petitions were filed by other

land-owners.

8. The Division Bench of the High Court,

however, on a totally irrelevant and extraneous

ground, viz., that the underlying object of

9

Section 28-A of the Act was to protect ‘little

Indians’ who because of their poverty and

ignorance, could not file an application

seeking Reference under Section 18 of the Act

which was not the position in the case on hand.

According to the High Court, since the

petitioner before the High Court could not be

said to be a ‘little Indian’ who could not seek

Reference due to ‘poverty or ignorance’, his

application was liable to be dismissed. The

Court, in this connection, referred to and

relied upon a decision of the said Court in

Nanak Chand & Ors. v. State of U.P., (1996) 2

All WC 1294. The petition was accordingly

dismissed.

9. The appellant was convinced that the

High Court was wholly wrong in dismissing the

writ petition on the ground which was not at

all germane or relevant and Nanak Chand had no

application as it was decided in completely

different set of circumstances. He, therefore,

filed Review Petition but by a cryptic order

10

even Review Petition was dismissed. The

appellant, therefore, has approached this Court

by filing the present appeal.

10. Similar question has been raised by

the appellants in all other matters.

11. On April 12, 2002, notice was issued.

Similar notices were issued in other matters.

Leave was granted on August 29, 2003. The

matters were thereafter placed for final

hearing and that is how the matters are before

us.

12. We have heard learned counsel for the

parties.

13. The learned counsel for the appellants

submitted that the order passed by the High

Court was totally erroneous and wholly ill-

founded. The question before the High Court was

not as to maintainability of application under

Section 28A of the Act. The controversy was

limited to the validity or otherwise of

Government Orders of 1994 and 2001. The High

Court misconstrued the prayer of the appellants

11

and dismissed the petition which was illegal

and improper. The counsel also urged that the

High Court was wrong even in interpreting

Section 28A of the Act as held by this Court in

several cases. The only requirement of

application under Section 28A of the Act is

that an order must have been passed by a

Reference Court under the Act and the person

moving an application under Section 28A must

not have sought such Reference. Admittedly, in

the instant case, the Award passed by the Land

Acquisition Officer and the offer made by him

was not accepted by certain land-owners and the

Award was challenged by them. The appellant was

not one of those land-owners. Reference Court

enhanced the amount of compensation. It was,

therefore, open to the appellant to seek

similar relief by invoking Section 28A of the

Act. He, accordingly, made an application. The

Additional District Magistrate did not reject

the application of the appellant on the ground

that no such application was maintainable. He,

12

however, did not decide it. The grievance of

the appellant-landowner was limited to a

direction to the Additional District Magistrate

to decide the application. The High Court,

however, held that the application filed by the

appellant under Section 28A was itself not

maintainable which has caused serious prejudice

to the appellant.

14. The counsel submitted that the

underlying object of Section 28A of the Act is

to treat equals equally and the point is

concluded by several pronouncements of this

Court. Hence, even if a person is not poor or

‘little Indian’, he cannot be deprived of the

benefit of Section 28A. On that ground also,

the order passed by the High Court deserves to

be set aside. A prayer was, therefore, made to

quash and set aside order passed by the High

Court as also two Government Orders challenged

in the writ petition by issuing a writ of

mandamus ordering the respondents to act as per

the order passed by the Reference Court, to

13

decide the application under Section 28A of the

Act and to pay enhanced compensation to the

appellants.

15. The learned counsel for the

respondent-authority, on the other hand,

supported the order passed by the High Court.

He submitted that the Statement of Objects and

Reasons behind enacting Section 28A of the Act

was explicitly clear. The provision has been

inserted in the Act with a view to protect

‘little Indians’ who due to poverty or

ignorance of law could not challenge the Award

passed by the Land Acquisition Officer by

seeking Reference. If a person who is otherwise

aware of legal provisions and is in a position

to challenge the Award by seeking Reference

under Section 18 of the Act, he cannot take

advantage of his own in-action or negligence by

claiming enhanced compensation in favour of

other persons who had sought Reference. It was

also submitted that in any case, after the

decision by the Reference Court, if the State

14

or acquiring body has challenged the legality

and validity of the enhanced amount of

compensation in the High Court or in the

Supreme Court and the matter is sub judice, no

amount can be paid to an applicant who has made

an application under Section 28A of the Act

inasmuch as the main controversy and the order

on the basis of which such application is made

is pending adjudication before the superior

Court. The action of the Collector of not

deciding the application, thus, is strictly in

accordance with law as also equitable and no

prejudice can be said to have been caused to

the applicant.

16. It was also submitted that an

application under Section 28A of the Act can be

made only by ‘person interested’. In the

instant case, according to the respondents,

notification under Section 4 was issued in 1987

and notification under Section 6 was issued in

1989. Even according to the appellant, he

purchased the property in November, 1990 i.e.

15

after both the notifications were issued and

published. He, therefore, by no stretch of

imagination, can be termed as ‘person

interested’. On that ground also, the

application under Section 28A of the Act, was

not maintainable and the appellant could not

have filed a writ petition nor he could have

challenged the order passed by the High Court

since he had no interest in the land when the

land was acquired. On all these grounds, it is

submitted that, the appeals deserve to be

dismissed.

17. Having heard learned counsel for the

parties, in our opinion, the appeals deserve to

be partly allowed.

18. It is no doubt true that a preliminary

objection has been raised by the respondents as

regards locus of the appellant herein.

According to the respondents, application under

Section 28A was filed (Civil Appeal No. 6850 of

2003) by Charan Singh, son of late Shri Budh

Singh in his individual capacity and not for

16

and on behalf of the Samiti and such an

application was not maintainable. The

contention of the appellant, on the other hand,

is that the objection raised by the respondents

is not well founded inasmuch as the

application, which is produced on record,

itself expressly recites that the application

has been made by the Samiti ‘through its

President’ Charan Singh. It is true that the

land was purchased by the appellant from the

Samiti and his name had been entered in Revenue

Record. But the appellant was also the

President of the Samiti and an application was

made in the capacity of the President.

19. We would have entered into the said

question provided it had been considered by the

High Court and appropriate decision had been

taken thereon. The High Court, however, has not

decided the maintainability or otherwise of

application and locus standi of the appellant

herein. The High Court, relying on Nanak

Chand, dismissed the writ petition holding that

17

the petitioner before the Court could not be

said to be a ‘little Indian’ who could not seek

Reference under Section 18 of the Act because

of ‘poverty and ignorance’. We, therefore,

leave the question of maintainability of

application under Section 28A of the Act by the

appellant open.

20. So far as interpretation of Section

28A is concerned, it may be stated that the

said provision came to be inserted by the Land

Acquisition (Amendment) Act, 1984 (Act 68 of

1984) with effect from September 24, 1984.

21. The said Section reads as under;

28A. Re-determination of the amount of

compensation on the basis of the award

of the Court.-

(1) Where in an award under this Part,

the Court allows to the applicant any

amount of compensation in excess of the

amount awarded by the Collector under

section 11, the persons interested in

all the other land covered by the same

notification under section 4, sub-

section (1) and who are also aggrieved

by the award of the Collector may,

notwithstanding that they had not made

an application to the Collector under

section 18, by written application to

18

the Collector within three months from

the date of the award of the Court

require that the amount of compensation

payable to him may be re-determined on

the basis of the amount of compensation

awarded by the Court:

Provided that in computing the period of

three months within which an application

to the Collector shall be made under

this sub-section, the day on which the

award was pronounced and the time

requisite for obtaining a copy of the

award shall be excluded.

(2) The Collector shall, on receipt of

an application under sub-section (1),

conduct an inquiry after giving notice

to all the persons interested and giving

them a reasonable opportunity of being

heard, and make an award determining the

amount of compensation payable to the

applicants.

(3) Any person who has not accepted the

award under sub-section (2) may, by

written application to the Collector,

require that the matter be referred by

the Collector for the determination of

the Court and the provisions of sections

18 to 28 shall, so far as may be, apply

to such reference as they apply to a

reference under section 18.

22. In the Statement of Objects and

Reasons, for insertion of Section 28A, it was,

inter alia, observed;

19

“Considering that the right of

reference to the civil court under

Section 18 of the Act is not usually

taken advantage of by inarticulate and

poor people and is usually exercised

only by the comparatively affluent land-

owners and that this causes considerable

inequality in the payment of

compensation for the same or similar

quality of land to different interested

parties, it is proposed to provide an

opportunity to all aggrieved parties

whose land is covered under the same

notification to seek re-determination of

compensation, once any one of them has

obtained orders for payment of higher

compensation from the reference court

under Section 18 of the Act”.

23. The provision came up for

consideration before this Court in several

cases. In the leading case of Mewa Ram

(Deceased) by his Lrs. & Ors. v. State of

Haryana through The Land Acquisition

Collector, Gurgaon, (1986) 4 SCC 151, this

Court held that having regard to the Statement

of Objects and Reasons of the Amendment Act, it

is clear that Section 28A is intended and meant

for the inarticulate and poor people who by

reason of their poverty and ignorance have

failed to take advantage of the right of

20

Reference to Civil Court under Section 18 of

the Act. It was also held that the provision

was not intended to reopen an Award which had

attained finality and was of binding nature.

24. Again, in The Scheduled Caste Co-

operative Land Owning Society Ltd., Bhatinda

v. Union of India and others, (1991) 1 SCC 174,

the Court held that once a claimant has sought

and secured a Reference under Section 18 of the

Act and an order is passed, he cannot

thereafter invoke Section 28A of the Act for

re-determination of compensation.

25. In the well known decision in Babua

Ram & Ors. v. State of U.P. & Anr., (1995) 2

SCC 689, this Court considered the question in

detail. It was held that before Section 28A of

the Act can be invoked, a person must show that

he is person interested and is aggrieved as in

respect of other lands covered by the

same notification under Section 4, higher

compensation has been awarded. An aggrieved

person who had not made an application for

21

Reference under Section 18 of the Act thus

becomes entitled to apply under Section 28A of

the Act. The right to an aggrieved person under

Section 28A arises only when the Reference

Court grants compensation in excess of the

amount awarded by the Collector under Section

11. It was also observed that such an

application can be made in writing by any

‘aggrieved’ person. The said expression would

cover any interested person who had failed to

make an application for Reference under Section

18 and would not be confined to those who

received compensation under protest. It was

also indicated that Section 28A is a ‘complete

Code’ in itself providing substantive right to

‘an aggrieved person’ to claim compensation

equal to that awarded to his neighbour covered

by the same notification under Section 4(1).

26. In Union of India & Anr. v. Pradeep

Kumari & Ors., (1995) 2 SCC 736, this Court

discussed the object underlying Section 28A of

22

the Act and observed that such object would be

better achieved by giving the expression ‘an

award’ in Section 28A its natural meaning as

meaning the award that is made by the court in

Part III of the Act after the coming into force

of Section 28A. If the said expression in

Section 28A(1) is thus construed, a person

would be able to seek re-determination of the

amount of compensation payable to him provided

the following conditions are satisfied;

(i) An award has been made by the court

under Part III after the coming into

force of Section 28A;

(ii) By the said award the amount of

compensation in excess of the amount

awarded by the Collector under Section

11 has been allowed to the applicant in

that reference;

23

(iii) The person moving the application under

Section 28A is interested in other land

covered by the same notification under

Section 4(1) to which the said award

relates;

(iv) The person moving the application did

not make an application to the Collector

under Section 18;

(v) The application is moved within three

months from the date of the award on the

basis of which the re-determination of

amount of compensation is sought; and

(vi) Only one application can be moved

under Section 28A for re-determination

of compensation by an applicant.

27. A Constitution Bench of this Court in

Union of India (UOI) & Anr. V. Hansoli Devi &

Ors., (2002) 7 SCC 273 held that dismissal of

24

an application seeking reference under Section

18 on the ground of delay also would not come

in the way of the claimant for re-determination

of compensation under Section 28A of the Act.

Such person can be said to be a ‘person

aggrieved’ and would be entitled to make an

application to receive compensation provided

the conditions of the said section are complied

with.

28. From the aforesaid decisions, in our

judgment, the law is well settled and it is

that against an award, if the Reference Court

allows the applicant and awards any amount of

compensation in excess of the amount awarded by

the Land Acquisition Officer under Section 11

of the Act, any person interested in the land

covered by the same notification may make an

application under Section 28A of the Act within

the period specified in the said section and

may seek the same relief which has been granted

to other land-owners by the Reference Court.

25

29. We are, however, of the considered

opinion that the appellant is not entitled to

the relief he prayed in the writ petition

before the High Court as well as before us in

the present proceedings so far as the direction

to decide his application under Section 28A of

the Act is concerned. It is true that once

Reference Court decides the matter and enhances

the compensation, a person who is otherwise

eligible to similar relief and who has not

sought Reference, may apply under Section 28A

of the Act. If the conditions for application

of the said provision have been complied with,

such person would be entitled to the same

relief which has been granted to other persons

seeking Reference and getting enhanced

compensation. But, it is equally true that if

Reference Court decides the matter and the

State or acquiring body challenges such

enhanced amount of compensation and the matter

is pending either before the High Court or

before this Court (Supreme Court), the

26

Collector would be within his power or

authority to keep the application under Section

28A of the Act pending till the matter is

finally decided by the High Court or the

Supreme Court as the case may be. The reason

being that the decision rendered by the

Reference Court enhancing compensation has not

attained ‘finality’ and is sub judice before a

superior Court. It is, in the light of the said

circumstance that the State of U.P. issued two

Government orders on January 14, 1994 and June

13, 2001.

30. We see no illegality in keeping the

applications under Section 28A of the Act

pending till the issue is finally settled by

the Court and a decision has been arrived at.

31. The point is no longer res integra. In

Babua Ram, a similar contention was raised

before this Court. It was submitted on behalf

of the claimant invoking Section 28A of the Act

27

that once a Reference Court enhances the

compensation and a person similarly situated

makes an application under Section 28A of the

Act, the Collector is bound to decide the

application and grant enhanced compensation. It

was, therefore, submitted that the Collector/

Land Acquisition Officer was under obligation

to re-determine compensation by granting

benefit of the order of the Reference Court.

32. Negativing the contention, this Court

observed;

“However, with a view to avoiding

uncertainty and fluctuation, it would be

appropriate that, the Collector, while

paying compensation under Section 31,

should explain in vernacular language of

the claimant informing all persons

interested in the compensation that they

have a right to protest the compensation

determined under s. 11 before receiving

the same; has right to seek reference in

writing under Section 18 to the civil

court and that the application should be

made expressing the specific objections

in writing within the limitation

prescribed under Section 18. In case of

his failure to avail of the same, he

would not be entitled to further right

28

and remedy to seek higher compensation.

In case the claimant to be illiterate,

it should be properly explained to him

in his mother tongue. The statement made

in this behalf by the Collector should

be in the mother tongue of the claimant.

The Collector should append a

certificate that it was truly, correctly

and properly explained and obtain the

signature or thumb impression in token

thereof and this should be kept as part

of the record of the award proceedings.

He should also maintain a regular

register in his office in the serietum

duly signed by him and sealed and be

kept in the personal custody of the

Collector. This would not only obviate

the hardship to the interested persons

but also prevent corrupt practices in

fabricating the applications for

reference after the bar of limitation.

In this behalf, it is also necessary

that the Collector/L.A.O. should also

maintain another register for receipt of

the applications under Section 28A

indicating the date of its receipt, seal

of the office and personal signature of

the Collector/L.A.O. concerned and the

receipt thereof duly communicated to the

government or the authorised officer in

proviso to s. 11 of the Act”.

33. The view in Babua Ram was reiterated

in U.P. State Industrial Development Corpn.

Ltd. v. State of U.P. & Ors., (1995) 2 SCC 766.

There, the Court stated;

“The entire controversy has been

considered by this Court in Babua Ram

29

and Ors. v. State of U.P. dated

4.10.1994 rendered in C.A. Nos. 563/94 &

batch and held that since an appeal has

been preferred by the State against the

award of the Dist. Judge made under

Section 26 of the Act, the proper course

open to the L.A.O., on an application

made under Section 28-A(1) of the Act,

would be to keep the applications under

Section 28-A(1) pending till the appeal

filed against the award of the Dist.

Judge is disposed of by the High Court

and then to take action as per Section

28-A(2) of the Act. Following the law

laid down therein and subject to

directions contained therein, we hold

that the High Court was not right in

dismissing the writ petitions.

Therefore, the order of the High Court

is set aside. The award of the Collector

made under Section 28-A(2) is quashed.

The Collector/L.A.O. is directed to keep

the application filed under Section 28-A

(1) of the Act pending till the disposal

of the appeal. On receipt of the

judgment from the High Court or in an

appeal by this Court the L.A.O. is

directed to determine the compensation

based on the final judgment according to

law”.

34. In our opinion, therefore, the

Collector was right in not deciding the

application in view of the fact that the order

passed by the Reference Court was challenged by

the New Okhla Industrial Development Authority

30

(NOIDA) by filing first appeals before the High

Court. The High Court had entertained the

appeals and also passed interim order. The

contention of the appellants before the High

Court that Government Orders dated January 14,

1994 and June 13, 2001 were illegal, arbitrary

and ultra vires has no force. In fact, those

Government Orders are in consonance with law

laid down by this Court in Babua Ram and other

cases. We, therefore, see no infirmity in the

action of the Collector in not deciding the

applications.

35. For the foregoing reasons, in our

opinion, the appeals deserve to be partly

allowed. The order passed by the High Court in

all these matters are set aside but validity of

Government Orders dated January 14, 1994 and

June 13, 2001 is upheld.

36. We may, however, hasten to add that as

observed hereinabove, we are not deciding about

the locus standi of the appellant. As and when

the question will come up before the

31

Collector/Land Acquisition Officer, after the

disposal of first appeals before the High Court

or before this Court or after the decision

attains finality, such question as to

maintainability may be decided on its own

merits after hearing the parties. All

contentions of all parties are kept open.

37. The appeals are accordingly allowed to

the extent indicated above. In view of the

facts and in the circumstances of the cases,

however, there shall be no order as to costs.

………………………………………………J.

(C.K. THAKKER)

NEW DELHI, ………………………………………………J.

NOVEMBER 07, 2008. (D.K. JAIN)

32