# Mohammad Shahid & Ors v. Union of India & Ors

- **Citation:** (2024) 7 ILRA 615
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-04
- **Case number:** Writ C No. 16025 of 2024
- **Bench:** Manoj Kumar Gupta, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-shahid-ors-v-union-of-india-ors-52259
- **Pages:** 6

## Headnote

A. (Civil Law-The National Highways Act,
1956-Section 3-H)- The State Government
will deposit the compensation amount before
taking possession is not a provision enabling the
Central Government to delay payment of the
616 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation amount and contend that the
compensation would be paid as and when
possession is taken. (Para 15)

B. Rule 3 of the National Highways (Manner of
Depositing
the
Amount
by
the
Central
Government; Making Requisite Funds Available
to the Competent Authority for Acquisition of
Land) Rules, 2019-Mandates the executing
agency would make available requisite funds to
the competent authority as determined under
Section 3-G of the Act within 15 days of the
raising of demand by the competent authority.
Office Memorandum of the Central Government
dated 23rd November 2023, on which reliance is
being placed, is not applicable in respect of the
compensation amount, which NHAI is liable to
deposit under any award given under the
provisions of the National Highways Act in
respect of acquisitions in progress at the time of
its issuance. The Office Memorandum would
only apply to new projects of acquisition and
works
and
contracts
and
not
to
the
compensation amount under an existing award.
The plea on basis of which NHAI is refusing to
accord financial approval to the amount
awarded as compensation is not sustainable in
law. (Para 16, 18)

Writ Petition allowed. (E-15)

## Text

7 All. Mohammad Shahid & Ors. Vs. Union of India & Ors.
615
certificate obtained from the concerned
local authority:

Provided that in case of an
independent area or an independent
commercial area the promoter may from a
separate Association for its management, if
required.".

(b) In sub-section (5) after the
existing proviso, the following proviso shall
be inserted, namely:-

"Provided further that the amount
collected by the promoter towards interest
free maintenance security shall also be
transferred to the Association at the time of
handing over of the common areas and
facilities."

12. It is apparent from the impugned
order dated 15.01.2020 that the sole ground
for cancellation of the registration of
Respondent No. 1 is that the occupancy of the
flats of the building was less than 60%
therefore, in view of the provisions made in
the Act, 2016, the registration of Petitioner
No. 1 could not have been done.

13. The Court finds that Section 1(2) of
the Act, 2016 categorically provides that the
Act, 2016 shall come into force on such date
as the State Government may by notification
in the official gazette appoint but till date, the
State Government has not notified the date
with effect from which the Act, 2016 will
come into force. The aforesaid inference has
been drawn by the Court as State respondents
in their Counter-Affidavit have not given any
detail of such notification and even further in
spite of various opportunities granted by this
Court, the State respondents have not
produced any such notification.

14. Once this Court finds that the Act of
2016 itself did not come into force as till date,
the State Government has not issued
notification as contemplated under Section
1(2) of the Act, 2016, the amendments sought
to be incorporated by the Act, 2016 in the
Act, 2010 have not become effective. The
registration of Petitioner No. 1 has been done
as per Section 14(2) of the Act of 2010 but
the said registration has been cancelled
relying on the amended Section 14(2) in
terms of the Act, 2016 whereas the Act, 2016
itself has not come into force till date, as till
date notification contemplated under Section
1(2) of the Act, 2016 has not been issued.

15. In view of the aforesaid reasons, the
impugned order dated 15.01.2020 passed by
Respondent No. 4 cannot sustain in the eyes
of law.

16. Accordingly, this writ petition is
allowed. The order dated 15.01.2020 passed
by Respondent No. 4 is hereby quashed.
----------
(2024) 7 ILRA 615
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2024

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Writ C No. 16025 of 2024

Mohammad Shahid & Ors. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shiv Kant Mishra

Counsel for the Respondents:
A.S.G.I., C.S.C., Sri Rajesh Kumar Jaiswal

A. (Civil Law-The National Highways Act,
1956-Section 3-H)- The State Government
will deposit the compensation amount before
taking possession is not a provision enabling the
Central Government to delay payment of the
616 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation amount and contend that the
compensation would be paid as and when
possession is taken. (Para 15)

B. Rule 3 of the National Highways (Manner of
Depositing
the
Amount
by
the
Central
Government; Making Requisite Funds Available
to the Competent Authority for Acquisition of
Land) Rules, 2019-Mandates the executing
agency would make available requisite funds to
the competent authority as determined under
Section 3-G of the Act within 15 days of the
raising of demand by the competent authority.
Office Memorandum of the Central Government
dated 23rd November 2023, on which reliance is
being placed, is not applicable in respect of the
compensation amount, which NHAI is liable to
deposit under any award given under the
provisions of the National Highways Act in
respect of acquisitions in progress at the time of
its issuance. The Office Memorandum would
only apply to new projects of acquisition and
works
and
contracts
and
not
to
the
compensation amount under an existing award.
The plea on basis of which NHAI is refusing to
accord financial approval to the amount
awarded as compensation is not sustainable in
law. (Para 16, 18)

Writ Petition allowed. (E-15)

(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Manish Kumar Nigam, J.)

1. The prayer made in the instant
petition is for a direction to the respondents
to pay compensation to the petitioners in
pursuance of award of the Competent
Authority, Bareilly dated 06.07.2023 in
respect of land bearing Gata no.156 area
0.6053 hectare of revenue Village- Sarniya,
Tehsil and District- Bareilly and also
interest on the compensation amount.

2. The case of the petitioners is that
their land aforesaid was notified for
acquisition on 28.01.2022 under Section 3A of the National Highways Act, 1956 (for
short 'the Act') followed by notification
under Section 3-D of the Act dated
13.09.2022. An award was declared by the
competent authority on 06.07.2023. The
value
of
land
determined
is
Rs.3,02,65,000/- and of super structure as
Rs.2,95,64,257/-. Thus, the petitioner has
become
entitled
to
a
sum
of
Rs.5,98,29,257/- plus solatium and other
statutory benefits. The total sum would be
Rs.12,48,72,386/-. The competent authority
addressed a communication to the Project
Director, NHAI on 17.07.2023 for making
available the requisite amount to facilitate
payment of the compensation amount to the
affected persons. The Project Director, in
turn,
sent
a
communication
dated
19.10.2023 to the higher authorities seeking
financial approval. It seems that the higher
authorities of NHAI did not accord
financial approval and as a result whereof
the compensation amount has not been paid
to the petitioners so far.

3. The competent authority in its
instructions
supplied
through
learned
Standing Counsel took the stand that the
amount has not been made available to him
by NHAI and, therefore, compensation has
not been paid.

4. The Project Director, NHAI has
filed his affidavit on behalf of respondent
no.5 (NHAI) and therein it is not disputed
that the subject land of the petitioner was
acquired under the provisions of National
Highways Act, 1956. However, the stand
taken is that the Ministry of Road Transport
and
Highways
through
Office
Memorandum dated 23.11.2023 placed ban
on incurring additional expense/liability
under
Bharatmala
Pariyojana
and,
therefore, the compensation amount has not
been approved nor transmitted to the
7 All. Mohammad Shahid & Ors. Vs. Union of India & Ors.
617
account
of
competent
authority
for
payment. Copy of the Office Memorandum
dated 23.11.2023 has been brought on
record as Annexure CA-2 and it reads as
follows:

"F. No. RW/G-20011/08/2023-W&A
Government of India
Ministry of Road Transport & Highways
Transport Bhawan, 1, Parliament Street,
New Delhi-11001
New Delhi 23rd November, 2023
OFFICE MEMORANDUM

Sub: Non-creation of any liability
under Bharatmala Pariyojana Phase-I.

I am directed to inform that
during the meeting held on 10.11.2023
under the chairmanship of Secretary,
Expenditure on Pre-Budget discussion for
deciding Revised Estimate of 2023-24 and
Budgetary Estimate of 2024-25, it was
clarified that no new liability is to be
created
under
Bharatmala
Pariyojana
Phase-I until the revised CCA approval is
obtained. This has been further reiterated
vide Secretary, Expenditure D.O. letter
dated 16.11.2023 in which it has been
categorically mentioned that

"(i) No new works are approved
and no contracts are awarded under
Bharatmala under any phase until CCEA
approval is received (ii) No Expenditure is
incurred beyond the level of 20% above the
amount approved by the CCEA in 2017,
except for (a) inevitable payments such as
contractually
payable
amounts
under
ongoing contracts, (b) expenditure under
Vivad Se Vishwas 1 & 2 schemes (which
have been separately sanctioned by the
Government)".

2. Accordingly, all concerned are
requested to strictly adhere to the above
direction of the Secretary, Expenditure and
no additional liabilities are to be created
including liabilities on land acquisition and
pre-construction
activities
under
Bharatmala Pariyojana without approval of
the Competent Authority.

(Kamal Parkash)
Under Secretary to the Govt. of India
Telphone: 011-23710454
Planningmorth@gmail.com"

5. Reliance has been placed on
Section 3-H of the Act to contend that the
petitioners
would
be
entitled
to
compensation only when possession of the
acquired land is taken from them. Since,
NHAI, at present, is not taking possession,
therefore,
there
is
no
question
of
compensation amount being paid to the
petitioners.

6. Learned counsel for the petitioner
submits that once the respondents had
issued notification under Section 3-D of the
Act and as a result whereof the land had
vested in the Central Government, it is not
open to it to refuse to pay compensation on
the ground that it does not intend to take
possession and the amount would be paid
as and when possession is taken.

7. We have considered the rival
submissions and perused the material
placed on record.

8. Sub-section (2) of Section 3-D of
the Act unequivocally lays down that on
publication of the declaration under Section
3-D(1), the land shall vest absolutely in the
Central
Government
free
from
all
encumbrances.

9. Section 3-E stipulates that where
any
land
is
vested
in
the
Central
Government under sub-section (2) of
Section 3-D and the amount determined by
the competent authority under Section 3-G
618 INDIAN LAW REPORTS ALLAHABAD SERIES
with respect to the said land has been
deposited under sub-section (1) of Section
3-H, the competent authority may by notice
in writing, direct the owner as well as any
other person, who may be in possession of
such
land,
to
surrender
or
deliver
possession thereof within sixty days of
service of notice. In case any person
refuses to deliver possession, the competent
authority can use such force as is required
to enforce surrender of the land. Section 3F confers power in the Central Government
to enter and do other act necessary upon the
land
for
carrying
out
the
building,
maintenance, management or operation of a
national highway or part thereof or any
other work connected therewith.

10. Section 3-F is extracted below for
ready reference:

"3-F. Right to enter into the
land where land has vested in the
Central Government.--Where the land has
vested in the Central Government under
section 3-D, it shall be lawful for any
person
authorised
by
the
Central
Government in this behalf, to enter and do
other act necessary upon the land for
carrying out the building, maintenance,
management or operation of a national
highway or a part thereof, or any other
work connected therewith."

11. Section 3-G invests the competent
authority
with
power
to
determine
compensation.

12. Section 3-H stipulates as follows:

"3-H. Deposit and payment of
amount.--(1)
The
amount
determined
under section 3-G shall be deposited by the
Central Government in such manner as
may be laid down by rules made in this
behalf by that Government, with the
competent
authority
before
taking
possession of the land."

13. It is evident from the scheme of
the Act that the title in the land vests in the
Central
Government
free
from
all
encumbrances upon publication of the
declaration under Section 3-D(1) of the
Act. Thereafter, the Central Government is
conferred with power to enter and do other
act necessary upon the land for carrying out
the building, maintenance, management or
operation of a national highway or a part
thereof or any other work connected
therewith.

14. The consequence of vesting is that
the real owner is divested of his title in the
land and he cannot deal with it in any
manner. At the same time, as noted above,
although, actual physical possession of
such land could be taken only after the
compensation amount is deposited by the
Central Government with the Competent
Authority but it gets power to enter upon
the land to carry out necessary act for
building, maintenance, management and
operation of a national highway.

15. Section 3-H(1), which mandates
that the State Government will deposit the
compensation
amount
before
taking
possession is not a provision enabling the
Central Government to delay payment of
the compensation amount and contend that
the compensation would be paid as and
when possession is taken. Rather the said
provision is for the benefit of the tenure
holders, whose lands had been acquired
under the provisions of the Act. It is a
safeguard against taking over of possession
of
the
land
without
payment
of
compensation. The said provision cannot
be interpreted to confer power on the
7 All. Mohammad Shahid & Ors. Vs. Union of India & Ors.
619
Central Government to delay payment of
compensation to the affected persons, who
have been divested of their title.

16. The said conclusion also stands
fortified by Rule 3 of the National
Highways (Manner of Depositing the
Amount by the Central Government;
Making Requisite Funds Available to the
Competent Authority for Acquisition of
Land) Rules, 2019, which mandates that
the executing agency (NHAI herein) would
make available requisite funds to the
competent authority as determined under
Section 3-G of the Act within fifteen days
of the raising of demand by the competent
authority. The competent authority on
receipt of the amount would disburse the
same to the land owners or the persons
interested
therein
by
electronically
crediting the said amount into their
respective bank accounts. Relevant part of
Rule 3 is extracted below:

"3. The manner of making
requisite funds available to the competent
authority shall be as follows:-

(i) Subject to provisions of the
Act, the executing agency authorised by the
Central Government in this behalf, shall
open and maintain an account with one or
more Scheduled Commercial Banks for
remittance
of
the
amount
for
land
acquisition
across
the
country,
with
arrangements for access to such account by
the
competent
authority
for
specific
jurisdiction as per authorisation of limits by
the executing agency. The Executing
Agency shall, on the demand raised by the
competent authority before announcement
of the award, issue requisite authorisation
limits in favour of the competent authority
for withdrawal of amount from such
account as per requirements from time to
time for disbursement to the landowners or
persons interested therein through an
electronic banking mechanism as per extant
Reserve Bank of India regulations and the
said authorisation limits, revolving in
nature, shall entitle the competent authority
to withdraw money from such account as
per requirements, without any further
reference to the land acquiring agency, for
disbursement to the landowners or persons
interested therein, as follows:-

(a) The amount determined under
section 3-G of the Act within fifteen days
of the raising of demand by the competent
authority, and

..............................................

..............................................

(iv) The competent authority
shall, in turn, disburse the compensation
amount to the landowners or the persons
interested
therein
preferably
by
electronically crediting the said amount
into their respective bank accounts."

17. As such, the stand taken by NHAI
in its counter affidavit for declining to pay
compensation is manifestly against the
scheme of the Act and is, accordingly,
rejected.

18. The Office Memorandum of the
Central Government on which reliance is
being placed, is not applicable in respect of
the compensation amount, which NHAI is
liable to deposit under any award given
under the provisions of the National
Highways Act in respect of acquisitions in
progress at the time of its issuance. The
Office Memorandum would only apply to
new projects of acquisition and works and
contracts and not to the compensation
amount under an existing award. Therefore,
even, the aforesaid plea on basis of which
NHAI is refusing to accord financial
approval to the amount awarded as
620 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation is not sustainable in law and
is thereby rejected.

19. The writ petition is allowed.

20. A mandamus is issued to NHAI to
make available compensation amount to the
competent authority for being paid to the
petitioner and other affected persons in
accordance with law within a period of four
weeks from the date of communication of
the instant order.

21. No order as to costs.
----------
(2024) 7 ILRA 620
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ C No. 18084 of 2022
And
Writ C No. 18087 of 2022

Ranjeet Singh ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Subodh Kumar

Counsel for the Respondents:
C.S.C.

A. Uttar Pradesh Imposition of Ceiling on
Land Holdings Act, 1960 - An adult son and
a 'mother', both of whom are tenure-holders,
would not constitute a family. Under Section
3(7) of the Act, 'family' in relation to a tenureholder means the tenure-holder himself or
herself, their spouse (excluding a judicially
separated spouse), minor sons, and minor
daughters (excluding married daughters). Under
Section 3(17) of the Act, a 'tenure-holder' is
defined as a person who holds a holding but
does not include: (a) a woman whose husband
is a tenure-holder, or (b) a minor child whose
father or mother is a tenure-holder. A conjoint
reading of the definition of 'family' concerning a
tenure-holder and the definition of a 'tenureholder' under Sections 3(7) and 3(17) of the Act
makes it clear that an adult son, as defined
under Section 3(11-A) of the Act, and a
'mother',
both
tenure-holders,
would
not
constitute a family under Section 3(7) (Para 19).

B. Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950, Section 169 -
compulsory registration of a will - Section
169 of the Act of 1950 amended by U.P.
Act No. 27 of 2004, w.e.f. 23.08.2004. Prior
to amendment S. 169 required that all Wills
must be in writing and attested by two persons.
Prior to the amendment, there was no
requirement for registration. Issue : If a Will
that was executed prior to the amendment by
U.P. Act No.27 of 2004 without registration and
perfectly valid, but by time succession opened
out with the death of the testator, the
requirement
of
registration
had
been
introduced, would be valid or not ? Held: A Will
that was validly executed, would not be
rendered invalid for non-registration because
succession opened out after the U.P. Act No.27
of 2004 had come into operation. The provisions
of sub-Section (3) of Section 169 of the Act of
1950,
to
the
extent
that
they
require
compulsory registration of a will, have been
declared ultra vires and void in Pramila Tiwari v.
Anil Kumar Mishra and others, 2024 SCC OnLine
All 1588 (Para 25, 26, 28).

C. Ranjeet Singh and his mother, Smt. Surjeet
Kaur, were independent tenure-holders with
agricultural holdings. Ranjeet Singh had 6.970
hectares of land, while Smt. Surjeet Kaur had
1.855 hectares. Surjeet Kaur bequeathed her
holding of 1.855 hectares to her three married
granddaughters via an unregistered Will dated
14.07.2004. Prescribed Authority found that
Surjeet
Kaur's
Will,
made
to
her
granddaughters, was an attempt to circumvent
the ceiling limits of the Act. Held :Ranjeet Singh
and his mother, Smt. Surjeet Kaur were not a
family for the purpose of application of ceiling to
their holdings by clubbing them. Their holdings
would have to be separately reckoned for the
purpose of the Act. Ranjeet Singh had a total