# Radhey Shyam v. U.O.I. & Ors

- **Citation:** (2021) 10 ILRA 704
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-07
- **Case number:** Land Acquisition No. 22953 of 2021
- **Bench:** Rajan Roy, Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-v-u-o-i-ors-46405
- **Pages:** 5

## Headnote

A. Civil Law - Land acquisition
-
Payment of compensation - National
Highways Act, 1956 - Sections 3G(5) &
3H - Arbitration and Conciliation Act,
1996 - Sections 34 & 36 - 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 - Rule 3.

Section 3H of the Act, 1956 read with the
aforesaid Rules, 2019 themselves contain
a mechanism for payment of the amount
awarded by the Arbitrator and as such
recourse to Section 36 of the Act, 1996 Act
may not be necessary. Remedy u/s 36 of the
Act 1996 would not apply at least at this stage
of the case. Of course, in the event the award
of the Arbitrator is challenged u/s 34 of the Act,
1996, then, the withdrawal and disbursement as
envisaged in Rule 3 of Rules, 2019 may not take
place. (Para 7, 8)
10 All. Radhey Shyam Vs. U.O.I. & Ors.
705
In the present case, award dated 12.03.2018 in
its entirety has been challenged u/s 34 of the
Act, 1996. However, it is not confirmed whether
the petitioner's land is included in the said
award. (Para 9)

Petitioner is allowed to approach the competent
authority, under the Act, 1956, who shall verify
the fact as to whether there is an award in
favour of the petitioner, if it is so, whether it has
been challenged by the authority or any other
aggrieved person u/s 34 of the Act, 1996 or not.
If the award has not been challenged, then,
authority shall proceed in accordance with S. 3H
of the Act, 1956 read with Rules, 2019. And in
case there is a challenge to the award u/s 34 of
the Act, then of course, authority cannot
proceed any further, but in such eventuality,
petitioner shall be informed in writing about the
factual position. (Para 10)

Writ petition disposed of. (E-4)

## Text

704 INDIAN LAW REPORTS ALLAHABAD SERIES
light
of
the
judicial
declaration
of
invalidity, it would be deemed to have
never existed on the statute book. Viewed
in that light also it is manifest that the
decision of the Supreme Court in V.
Somyashree is clearly distinguishable since
there the Court was called upon to render
judgment in light of the Karnataka Rules as
they stood and in the absence of any
challenge to the constitutional validity of
those provisions.

13. The undisputed position which
thus emerges from the aforesaid discussion
is that consequent to the expression
"unmarried" as appearing in Rule 2 (c)
being struck down by this Court as
constitutionally invalid, "daughters" per se,
irrespective of whether they were married
or divorced, would be entitled to be
recognised as being entitled to claim the
benefit of the 1974 Rules. This, of course,
subject to the well accepted caveat that they
would, like sons, have to establish a
position of financial dependency at the time
of the untimely demise of the government
servant. In light of the position in law as
found by the Court, learned Standing
Counsel submitted that the ends of justice
would merit the matter being remitted to
the third respondent to consider the claim
of the petitioner afresh.

14. Accordingly the writ petition is
allowed. The impugned order of 24 May
2021 is hereby quashed. The matter shall
stand remitted to the third respondent for
considering the claim of the petitioner
afresh. It is only clarified that this Court
has interfered with the impugned order
solely on the grounds and for the reasons
noted above. All other aspects germane to
the consideration of grant of compassionate
appointments
which
would
include
consideration of factors such as a situation
of financial despondency as well as the
petitioner being dependent of the deceased
government servant are left open to be
considered
independently
by
the
respondents.
----------
(2021)10ILR A704
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.10.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SURESH KUMAR GUPTA, J.

Land Acquisition No. 22953 of 2021

Radhey Shyam ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Abhay Raj Singh

Counsel for the Respondents:
C.S.C., A.S.G., Sarvesh Kumar Dubey

A. Civil Law - Land acquisition
-
Payment of compensation - National
Highways Act, 1956 - Sections 3G(5) &
3H - Arbitration and Conciliation Act,
1996 - Sections 34 & 36 - 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 - Rule 3.

Section 3H of the Act, 1956 read with the
aforesaid Rules, 2019 themselves contain
a mechanism for payment of the amount
awarded by the Arbitrator and as such
recourse to Section 36 of the Act, 1996 Act
may not be necessary. Remedy u/s 36 of the
Act 1996 would not apply at least at this stage
of the case. Of course, in the event the award
of the Arbitrator is challenged u/s 34 of the Act,
1996, then, the withdrawal and disbursement as
envisaged in Rule 3 of Rules, 2019 may not take
place. (Para 7, 8)
10 All. Radhey Shyam Vs. U.O.I. & Ors.
705
In the present case, award dated 12.03.2018 in
its entirety has been challenged u/s 34 of the
Act, 1996. However, it is not confirmed whether
the petitioner's land is included in the said
award. (Para 9)

Petitioner is allowed to approach the competent
authority, under the Act, 1956, who shall verify
the fact as to whether there is an award in
favour of the petitioner, if it is so, whether it has
been challenged by the authority or any other
aggrieved person u/s 34 of the Act, 1996 or not.
If the award has not been challenged, then,
authority shall proceed in accordance with S. 3H
of the Act, 1956 read with Rules, 2019. And in
case there is a challenge to the award u/s 34 of
the Act, then of course, authority cannot
proceed any further, but in such eventuality,
petitioner shall be informed in writing about the
factual position. (Para 10)

Writ petition disposed of. (E-4)

(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Suresh Kumar Gupta, J.)

1. Petitioner seeks payment of the
compensation awarded by the Arbitrator
under Section 3G(5) of the National
Highways Act, 1956 on 12.03.2018 in Case
No. 887 of 2018.

2.

The
petitioner's
counsel
categorically states that he is not seeking
any enhancement of the amount awarded,
by means of this petition.

3. The counsel for the National
Highway Authority informs that a similar
writ petition bearing No. 533 (LA) of 2021
has been decided on 11.01.2021 by this
Court relegating the petitioner to the
remedy available under Section 36 of the
Arbitration and Conciliation Act, 1996,
therefore, in this case also as there is a
remedy for enforcement of the award under
the said provision and as the Act, 1996 is
applicable in the case at hand in view of
sub-section (6) of Section 3G of the
National Highways Act, 1956 therefore,
this petition should also be dismissed in
terms
of
the
said
judgement.
The
judgement referred by Shri Sarvesh Kumar
Dubey, learned counsel for National
Highway Authority reads as under:

"Heard.

Petitioners
herein
seek
enforcement of an arbitral award dated
19.02.2020. The acquisition was made
under the National Highways Act, 1956. As
per provisions of Section 3G(6) subject to
the provisions of this Act, the provisions of
the Arbitration and Conciliation Act, 1996
(hereinafter referred as "Act, 1996" ) shall
apply to every arbitration under this Act.

Learned
counsel
for
the
petitioners
admits
to
the
fact
that
concerned opposite party has challenged
the arbitral award dated 19.02.2020 under
Section 34 of the Act, 1996.

Learned
counsel
for
the
concerned opposite party asserts that such
arbitral award is executable under Section
36 of the Act, 1996, therefore this writ
petition is not maintainable especially as
challenge to the said award is still pending.
However, he is not in a position to inform
the Court as to what is the stage of the
proceedings under Section 34 of the Act,
1996 and whether there is any interlocutory
order therein.

Nevertheless
considering
the
availability of remedy under Section 36 of
the
Act,
1996
this
petition
is
not
maintainable. Accordingly, the petition is
dismissed. This order is being passed
without prejudice to the rights of the
parties.

It is further provided that if any
proceedings under Section 34 of the Act,
1996 is pending before the concerned
706 INDIAN LAW REPORTS ALLAHABAD SERIES
Court below, as informed by the learned
counsel for the opposite parties, then the
Court below shall consider and dispose of
the same in accordance with law at the
earliest."

4. The counsel for the petitioner
has invited our attention to Sub-section (6)
of Section 3H which provides- where the
amount determined by the arbitrator is in
excess of the amount determined by the
competent authority, the excess amount
together with interest, if any, awarded
under sub-section (5) 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 and the provisions of
sub-sections (2) to (4) shall apply to such
deposit. As per sub- section (2) of Section
3H, which becomes applicable in the
context of sub-section (6) referred herein
above, as soon as may be after the amount
has been deposited under sub-section (1),
the competent authority shall on behalf of
the Central Government pay the amount to
the person or persons entitled thereto. As
per sub-section (3) of Section 3H - where
several persons claim to be interested in the
amount deposited under sub-section (1), the
competent authority shall determine the
persons who in its opinion are entitled to
receive the amount payable to each of
them. As per sub-section (4) of Section 3H-
if
any
dispute
arises
as
to
the
apportionment of the amount or any part
thereof or to any person to whom the same
or any part thereof is payable, the
competent authority shall refer the dispute
to the decision of the principal civil court
of original jurisdiction within the limits of
whose jurisdiction the land is situated.

5. Thus, subject to the provisions of
sub-sections (3) and (4) of Section 3H, in
the event of an excess amount having been
awarded by the arbitrator under Section
3G(5), the said amount would not only be
deposited in terms of sub-section (6) of
Section 3H 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, but the same
would also be payable by the competent
authority
on
behalf
of
the
Central
Government to the person or persons
entitled thereto in view of sub-section (2)
of Section 3H. Even in cases where a
determination is made under sub-section
(3) of Section 3H or the matter is
determined after a reference under subsection (4) of Section 3H, such amount
would be deposited accordingly and paid to
the person or persons entitled thereto.

6. In the context of sub-section (6) of
Section 3H, we may also refer to the Rules
known as 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. Rule 3 of
the Rules, 2019 provides as under:

"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
10 All. Radhey Shyam Vs. U.O.I. & Ors.
707
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 3G of the Act within fifteen days of
the raising of demand by the competent
authority, and

(b) Where the amount determined
by the Arbitrator under sub-section (7) of
Section 3G of the Act is in excess of the
amount determined by the competent
authority, the excess amount, together with
interest, if any, awarded by the Arbitrator,
within 30 days of the communication of
Arbitrator's award, unless such Award has
been further challenged by either of the
aggrieved parties.

Explanation.- The authorisation
limits, revolving in nature, are explained
with the help of an illustration as under: -

Say, the amount of award is Rs.
200 crore for which the CALA places
demand
on
the
acquiring/
executing
agency. The executing agency shall issue
an authorisation in favour of CALA to draw
an amount up to Rs. 200 crore from the
Central account, in limits of Rs. 50.00 crore
at any point in time. As the CALA keeps
disbursing the amount, the limit of Rs.
50.00
crore
shall
keep
getting
automatically recouped and so on till the
utilisation of total amount of authorisation
of Rs. 200 crore.

(ii)
The
executing
agency,
authorised by the Central Government in
this behalf, shall ensure that the requisite
account is maintained with a Scheduled
Commercial Bank, against which an
authorisation limit is issued in favour of the
competent authority for disbursement of the
compensation amount, duly determined
under Section 3G of the Act, to the
landowners or persons interested therein.
Further, the said authorisation limit shall
be utilised by the competent authority for
the intended purpose of disbursement and
shall be duly reflected in the books of
accounts of the executing agency for the
purpose
of
proper
monitoring
and
reconciliation thereof and any interest
earned thereon shall be credited into the
said account and shall belong to the
executing agency.

(iii) In cases where the executing
agency
of
a
project
is
any
State
Government or Union territory, the amount
shall preferably be disbursed through the
Public Financial Management System of
the Ministry of Finance.

(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."

7. From the aforesaid provision, it is
evident that the competent authority is
entitled to withdraw money from the
account referred in Rule 3 of the Rules,
2019 as per requirements, without any
further reference to the land acquiring
agency, for disbursement to the land
owners or persons interested therein and in
a case where the amount determined by the
Arbitrator under sub Section (7) of Section
3G of the Act, 1956 is in excess of the
amount determined by the competent
708 INDIAN LAW REPORTS ALLAHABAD SERIES
authority, the excess amount, whether with
interest, if any, awarded by the arbitrator.
The same can be withdrawn within 30 days
of the communication of the Arbitrator's
award for disbursement to the land owners
or persons interested therein, unless such
award has been further challenged by either
of the aggrieved parties. Thus, Section 3H
of the Act, 1956 read with the aforesaid
Rules,
2019
themselves
contain
a
mechanism for payment of the amount
awarded by the Arbitrator, as such, there is
merit in the contention of learned counsel
for petitioner that recourse to Section 36 of
the Act, 1996 Act may not be necessary. Of
course, in the event the award of the
Arbitrator is challenged under Section 34
of the Act, 1996, then, the withdrawal and
disbursement as envisaged in Rule 3 of
Rules, 2019 may not take place. We were
not apprised of these rules on the earlier
occasion, when we decided Writ Petition
No. 533 (LA) of 2021.

8. In view of the opening word of
Sub-section (6) of Section 3G - "subject to
the provisions of this Act" as there is a
mechanism for payment of the amount
awarded by the Arbitrator under Section 3H
read with Rules, 2019, therefore, the
remedy under Section 36 of the Act 1996
would not apply at least at this stage of the
case. This aspect of the matter could not be
considered earlier.

9. Shri Dubey, learned counsel for the
National Highway Authority says that the
award dated 12.03.2018 in its entirety has
been challenged under Section 34 of the
Act, 1996. However, he is not sure as to
whether the petitioner's land is included in
the said award.

10. We are of the considered opinion
that the matter can be resolved by allowing
the petitioner to approach the competent
authority, under the Act, 1956, who shall
verify the fact as to whether there is an
award in favour of the petitioner, if it is so,
whether it has been challenged by the
authority or any other aggrieved person
under Section 34 of the Act, 1996 or not. If
the award has not been challenged, then, he
shall proceed in accordance with Section
3H of the Act, 1956 read with Rules, 2019
as discussed herein above. If he finds that
there is a challenge to the award under
Section 34 of the Act, then of course, he
cannot proceed any further, but in such
eventuality, he shall inform the petitioner in
writing about the factual position. This
exercise shall be completed within one
month. Whether the remedy under Section
36 of the Act, 1996 would be available in
the event the provisions of Section 3H of
the Act, 1956 and Rules, 2019 are not
complied, or not, and whether it will be
available after disposal of proceedings
under Section 34 or for that matter during
its pendency, if there is no stay of the
award, are questions which are left open for
consideration in some other appropriate
case.

11. With the aforesaid observations,
the writ petition is disposed of.
----------

(2021)10ILR A708
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2021

BEFORE

THE HON'BLE JASPREET SINGH, J.

Consolidtation No. 2572 of 1978

Lalta Prasad & Ors. ...Petitioners
Versus
Haunsla Prasad & Ors. ...Respondents