Mohd. Yaseen And Others vs Mohd. Asif And Others

HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - C No. - 21943 of 2012
Mohd. Yaseen and others
…..Petitioner(s)
Versus
Mohd. Asif and others
…..Respondent(s)
Counsel for Petitioner(s) : Dushyant Singh, M.C. Singh, Mohit
Kumar, Rahul Srivastava
Counsel for Respondent(s) : C.S.C., M.N.singh, Mahesh Narain
Singh, Mahesh Narayan Singh
A.F.R.
Court No. - 2
HON'BLE J.J. MUNIR, J.
HON'BLE INDRAJEET SHUKLA, J.
Order on Civil Misc. Delay Condonation Application No. Nil of 2026
and Civil Misc. Substitution Application No. Nil of 2026
1. Both these applications have been moved in Court today. These
applications are taken on record. Let them be numbered by the Office.
2. The delay condonation application has been moved seeking to
condone the delay in making the application for substitution seeking to
bring on record the heirs and LRs of respondent nos. 3 and 5, who have
since passed away.
3. Mr. M.N. Singh, Advocate, who appears for the contesting
respondents and has instructions on behalf of the heirs and LRs states

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that he does not wish to file a counter affidavit to the delay condonation
application.
4. We have perused the delay condonation application and the
affidavit in support thereof. Respondent no. 3, Smt. Shagufta passed
away on 11.04.2026 leaving behind her heirs and LRs as respondent nos.
1 and 2, who are already on record.
5. Likewise, respondent no. 5, Smt. Mahmoodan died on 28.11.2013
leaving behind respondent no. 4, her son, Mohammad Hashim, as her
heir and LR. Mohammad Hasim too passed away and his heirs have
already been substituted pursuant to our orders passed yesterday.
6. The cause shown for the delay is sufficient. The application is
allowed.
7. The delay in preferring the substitution application is condoned
and the substitution application is treated to be within limitation.
8. So far as substitution application goes, it has been moved to bring
on record the heirs and LRs of respondent nos. 3 and 5. We notice that
the heirs of respondent no. 3 are already on record as respondent nos. 1
and 2 and those of respondent no. 5 are also on record presently as the
heirs and LRs of respondent no. 4, who too has passed away in the
meanwhile.
9. There is good ground to grant substitution. The substitution
application is allowed. 
10. Let a note be made in the cause title against the names of
respondent no. 3 that her heirs and LRs are already on record as
respondent nos. 1 and 2 and a similar note against the name of
respondent no. 5 be also made that her heirs and LRs are already on
record as respondent nos. 4/1, 4/2 and 4/3. 
11. Let the substitution be carried out by the office forthwith.

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WRIC No. - 21943 of 2012
Order on WRIT - C No. - 21943 of 2012
Mohd. Yaseen and others …..Petitioner(s)
Versus
Mohd. Asif and others …..Respondent(s)

1. This writ is directed against an order dated 23.04.12 passed by
Additional District Magistrate (Administration) acting as the competent
authority under the National Highways Act, 1956 (for short the Act of
1956), apportioning compensation between the petitioners on one hand
and the original respondent nos. 1 to 5 on the other, granting them a
moiety each.
2. Heard learned Counsel for the petitioner, Mr. M.N. Singh, learned
Counsel appearing on behalf of respondent nos. 1 to 5 and Mr. Sharad
Chandra Upadhyay, learned Standing Counsel appearing on behalf of
respondent nos. 6 and 7.
3. The case of the petitioners is that the land in regard to
compensation whereof the dispute has arisen was originally held by one
Abdul Hakeem. He was succeeded by generations after him and the
property devolved upon parties according to following pedigree:
अब्दुल हकीम
|
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| |
आलाउद्दीन छोटे
( ) |
लावल्द
--------------------------------------------

| |

अब्दुल शकूर अब्दुल गफ़ूर
|

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| | | |

0 0 0 0
मो यासीन मो इस्माईल मो इब्राहीम मो मुरसलीम

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| | |

0 0 ( ) 0
मो कासिम मो महमूदन बेवा मो हासिम

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WRIC No. - 21943 of 2012
|

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| | |

मो 0 आसिफ मो 0 यूसुफ श्रीमती शगुफता
( पुत्र ) ( पुत्र ) ( बेवा )
4. We notice that Abdul Hakeem had two sons, namely, Alauddin and
Chhote. Alauddin died issue-less and his line failed. The dispute here has
arisen amongst heirs of Abdul Hakeem descended through his son
Chhote. Chhote had two sons Abdul Shakur and Abdul Gafur. The
petitioners represent Abdul Shakur’s branch, whereas respondent nos. 1
to 5, represent the branch of Abdul Gafur. 
5. The land in dispute was acquired under the National Highways
Act,1956 vide notification under Section 3A published on 04.12.2009
and 3(B) published in the gazette on  16.06.2010. A notice under Section
3G was issued, which was published in Hindi Daily ' Amar Ujala' and
‘ Dainik Hindustan ’, both dated 23.07.2010. An award was passed on
28.02.2011, awarding a total sum of Rs. 25,35,29,509/-.
6. The dispute arose between the petitioners on one hand and
respondent nos. 1 to 5 on the other regarding apportionment of
compensation. The petitioners contented that the late Alauddin had
transferred his agricultural holdings by way of oral gift ( Hiba ) in favour
of the late Abdul Shakur, one of his two nephews, whose branch is
represented by the petitioners. The petitioners, therefore, say that they
would have a 3/4th share in the land acquired, and a fortiori, the
compensation payable. The respondents would be entitled to a 1/4th.
One of the principal questions that arose for consideration, therefore,
was whether, in the case of tenure land governed by the U.P. Zamindari
Abolition and Land Reforms Act, 1956 (U.P.Z.A. & L.R. Act, 1956), an
oral gift could be made under the personal law of parties. The contention
was that the U.P.Z.A. & L.R. Act, 1956 is uniformally applicable to all
the tenure holders regardless of their religion and the personal laws

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WRIC No. - 21943 of 2012
governing other properties of theirs. The U.P.Z.A. & L.R. Act carries
provisions regarding making of gift under Section 152 of the said Statute
and gift of a transferable tenure can be made by a bhumidhar in
accordance with Section 154 of the U.P. Z.A. & L.R. Act alone.
7. On the other hand, it was urged that there is no specific provision
in the U.P.Z.A. & L.R. Act providing for gift of a bhumidhari land.
Section 154 of the said Act does not contemplate the gift of such land. It
was urged that since there was no specific mode of gift provided under
the U.P.Z.A. & L.R. Act, Section 129 of the Transfer of the Property Act,
1882 would apply, entitling a bhumidhar , who was a Muslim to transfer
his land by making an oral gift in accordance with the Mohammadan
law. Section 2 of the Muslim Personal Law (Shariat) Application Act,
1937, did not abrogate or override this rule of Mohammedan law. In
support of this contention, reliance was placed on a decision of this
Court in Mohammad Ali vs. Board of Revenue, 2001 (92) RD 282.
8. From the aforesaid state of things, what we find is that there was
a serious contention between parties on facts and law about their shares
in the land since acquired, and a fortiori, regarding apportionment of
compensation between them. It was a full-fledged lis and not merely a
case, where the shares of parties were, more or less, agreed upon and the
matter one where the competent authority could determine the shares
almost as non-contentious business. 
9. The Act of 1956 makes provision in regard to apportionment of
compensation  under Section 3H, which reads:
" 3H.  Deposit and payment of amount.—
(1) The amount determined under section 3G 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.

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WRIC No. - 21943 of 2012
(2) 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.
(3) 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.
(4) 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) Where the amount determined under section 3G by
the arbitrator is in excess of the amount
determined by the competent authority, the
arbitrator may award interest at nine per cent. per
annum on such excess amount from the date of taking
possession under section 3D till the date of the
actual deposit thereof.
(6) 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. "
10. Learned Counsel for the petitioner invited our attention to Sub-
section (4) of Section 3H and submitted that in the event of a dispute
arising between co-sharers of the land acquired under the Act,
apportionment of compensation or any part thereof or to any person to
whom the same or any part thereof is payable, could not be done by the
competent authority. The competent authority would have to refer the

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WRIC No. - 21943 of 2012
dispute for decision of the principal Civil Court of original jurisdiction
within the limits of whose jurisdiction the land is situate. This, 
according to the learned Counsel for the petitioner, is the inescapable
effect to Sub-section (4) of Section 3H. 
11. On the other hand, Mr. M.N. Singh, learned Counsel appearing on
behalf of respondent nos. 1 to 5 submits that Sub-section (3) of Section
3H of the Act of 1956 provides that where several persons claim to be
interested in the amount deposited under Sub-section (1), the competent
authority is empowered to determine the persons, who in opinion of the
authority, are entitled to receive compensation payable to each of them.
This power, according to Mr. M.N. Singh, learned Counsel for
respondent nos. 1 to 5, entitles the competent authority to apportion
shares between parties. We do not agree. 
12. The power under Sub-section (3) of Section 3H is a power given
to the competent authority to distribute compensation according to the
shares of parties so long as the entitlement to the compensation with
reference to the shares of each largely remains a non-contentious issue.
If shares of parties are apparently well settled, there is no difficulty for
the competent authority to proceed under Sub-Section (3) of Section 3H
and pay compensation according to each co-sharer’s entitlement.
However, if a dispute arises between parties in the sense of a lis with
each party propounding a different share for himself based on past
transactions and the law applicable, it is a matter which can alone be
determined by the principal Civil Court of original jurisdiction within
whose jurisdiction the land acquired is located. The competent authority
in a situation of the latter kind would have no jurisdiction to decide upon
entitlement of shares of parties and distribute compensation according to
his opinion. The only course left open to the competent authority would
be to make a reference of the dispute for the decision of competent Civil
Court within whose jurisdiction the acquired land is located. We are

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fortified in the view that we take by the authority of the Supreme Court
in Vinod Kumar and others vs. District Magistrate, Mau and others,
AIR 2023 SC 3337. In Vinod (supra) , it has been held:
“33. We are of the view that when it comes to
resolving the dispute relating to apportionment of
the amount determined towards compensation, it is
only the Principal Civil Court of original
jurisdiction which can do so. Principal Civil Court
means the Court of the District Judge.
34. Our final conclusion is as under: 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, then, 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. The competent
authority possesses certain powers of the Civil
Court, but in the event of a dispute of the above
nature, the summary power, vesting in the competent
authority of rendering an opinion in terms of sub-
section (3) of Section 3H, will not serve the
purpose. The dispute being of the nature triable by
the Civil Court that the law steps in to provide
for that to be referred to the decision of the
Principal Civil Court of original jurisdiction. The
dispute regarding apportionment of the amount or
any part thereof or to any person to whom the same
or any part thereof is payable, would then have to
be decided by that Court.”
13. In the circumstances, we are of opinion that the competent
authority/Additional District Magistrate had no jurisdiction to apportion
compensation between the petitioners on one hand and respondent nos. 1
to 5 on the other. He had to make a reference of the dispute to the
principal Civil Court of original jurisdiction within whose jurisdiction
the land acquired is situate. 
14. In the result, this writ petition succeeds and is allowed . The
impugned order dated 23.04.02012 is hereby quashed . The competent

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authority/Additional District Magistrate Bulandshahr is ordered to
forthwith make a reference of the dispute to the principal Civil Court of
original jurisdiction within whose jurisdiction the land is acquired. 
15. There shall be no order as to costs.
16. Let this order be communicated to the Additional District
Magistrate, Bulandshahr through the learned Chief Judicial Magistrate,
Bulandshahr by the Registrar (Compliance) by Monday next. 
(Indrajeet Shukla, J.) (J.J. Munir, J.)
July 24, 2026
Deepak Pandey
Digitally signed by :-
DEEPAK KUMAR PANDEY
High Court of Judicature at Allahabad