Union of India v. Ashok Kumar Kapur & Ors

ORDER o/"

14.03.2012 For orders see LA.APP.421/2010, titled as Suresh Prasad alias Hari Kishan vs. Union ofIndia & Am. JIL GAUR) JUDGE March 14, 2012 pkb Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. IN THE HIGH COURT :>F LHi AT NEW DELHI Reserved on Februaiy 08, 2012 Pronouneed on : iVIarch 14, 2012 LA.APP.421/2010(VH.LACF.MASOODABAD) SURl-:SIi PRASADalias IIARI KlSl IAN Appellant Through: ' Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates versus UNION 01' TNDTA & ANR. Through: Respondents Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak. Ms.K.Kiran Pathak, Mr.Surya Nath Pandey, Mr.Yccshu Jain and Ms.Navlin Swain, Advocates ibr I.AC7U01 1-A.App. No. LA.App. No. ].A.App. No. LA.App. No. LA.App. No. L.A.App. No. f.A.App. No. r.A.App. No. I.A.App. No. LA.App.No. 1 421/2010 443/2010 455/2010 458/2010 462/2010 465/2010 469/2010 478/2010 584/2010 012/2010 AND LA.App. No. LA.App. No. LA. App. No. LA.App. No. i.A.App. No. LA.App. No. I-A.App. No. LA.App. No. f.A.App. No. LA.App.No. 1 441/2010 444/2010 456/2010 459/2010 463/2010 467/2010 470/2010 580/2010 585/2010 013/2010 LA.App. No. I.-A.App. No. LA.App. No. fvA.App. No. I.A.App. No. LA.App. No. LA.App. No-. LA.App. No, 1-A.App.No. 1 LA.App, No. 442/2010 446/2010 457/2010 460/2010 464/2010 468/2010 471/2010 583/20 i 0 01 1/201 {) 12/2012 AND APPl'^AI.SFILLD BY UNION OF INDIA l.A.App.No. 746/2010 LA.App. No. 59/2012 LA.App. No. HOPOlI LA.App. No. 747/2010 LA.App.No. 748/2010 LA.App. No. 749/2010 I-A.App.No. 751/2010 LA.App.No. 753/2010 LA..'\pp.No 754/^010 l.A.App.No. 421/Z01()&ConnectedAppe,ilsofVill^.Mssoo^ba7 # [.A.App.No. 755/2010 l.A.App."No. 756/2010 I.A.App.No. 858/2010 l.A.App. No. 859/2010 l.A.App. No. 860/2010 LA..^pp. No. 861/2010 l.A.App. No. 862/2010 l.A.App, No. 863/2010 l,A.App. No. 866/2010 LA.App. No. 867/2010 LA.App. No. 869/2010 LA.App. No. 267/201 1 LA.App. No. 21/2012 LA.App. No. 56/2012 l.A.App. No. 865/2010 LA.App. No. 868/2010 LA.App. No. 752/2010 (Relating to Notification No. F.7/60/2001/L&B/LA/MRTS(S/W)/7674 of 05.08.2003issuedunder Section4 of the Land AcquisitionAct, 1894 & AwardNo. 5/2005-06of VillageMasoodabad,Delhi) CORAM: ITON'BLE MR. JUSTICE SUNTL GAUR O R D E R %

14.03.2012

¶1Lor 'NajafgarhDepot, MKTS Project', 610 bighas and 13 biswas of land of Village Masoodabad was acquired vide Notillcation of 5"' August, 2003 under Section 4 of the Land AcquisitionAct, 1894 which was followed by Notificationof 8"' August, 2003 under Section 6 of the Land AcquisitionAct, 1894 resultingin passingof Av/ardNo.5/2005-06 grantingcompensationat the rate of Rs.15.70 lacs per acre on the basis of indicative pricc fixed by the Government of NCT of Delhi for the agricultural lands in Delhi.

¶2In the reference sought by the claimants, interest @iO% per annum was granted by the ReferenceCourt for the period of two years, i.e., from the date oi: llxing of the minimum agriculturalpricc upto the date ol Notillcation, i.e., compensation amount stood enhanced to Rs. 18,84,000per acrc for the acquiredland in question.

¶3In the instantappeals, further enhancementofRs.50 lacs per acre IS sought by the claimants,whereas the respondentin their appealshave sought setting aside of the impugned order of the ReferenceCourt and restorationol the Award. Since the grounds urged in these appeals is LA.App. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 2 India, 1997 I A[) (Del) c,j: Htiri Chand rv. Union ofIndia, 9! (2001) f)i;r 602; DeihiDevdopmentAuthorityvs. LandAcquisitionCollector &Ors., 130(2006)D'F \ AtnuiSingh (died) through LRs w. State of Haryana & Anr., AIR 2008 SC 709; Makahir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors., (1987) 1 SCC 587; Thakur Kuldeep Singh (D) Ihr. L.R. & Ors vs. Union of India & Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs & Ors. vs. Union ofIndia & Anr., 2004 VlII AD (SC) 37; Om Prakash vs. StateofHaryana&Ors, 201] IV AD (SC) 382; Sagunthala(dead) through LRs rv. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thirthkarvs. State of Maharashtra,AIR 2009 SC 2238, to assert that the eompensationclaimed in these appeals is just and reasonable.

¶7On bchalCof the respondents,it was asserted by learned Senior Counsel (or the respondentsthat adoptionofthe auctionratesofDDA or L&DO rates in respectof agriculturalland stands negated by the Apex Court in decision'mLai Chand vs. Union ofIndia andAnr., (2009) 15 SCC 769. It was also urged by learned counsel for the respondentsthat despite Village Masoodabad being declared to be urbanized, the acquired land in question continued to be used as agriculturalland and therefore, instances ol Village Mangolpur Khurd and Viliaoe to MohammadpurMunirkaare of no avail and the instanceof allotmentof land by DDA in favour of Delhi Jal f3oard cannot be treated to be representativeprice of the lands in the vicinityas the evidenceis lacking regarding said instances to be comparable for determiningthe market value ol the land in question. Reliancewas placed upon decisionof the Apex Court in Satpal&Ors. Vs. UnionofIndia, (1997) 11SCC 423 to assert that if in ashort periodthere is asharp increasein price,than the usual prevalenttrend in the market,such an instancecannot be taken as I.A.App.No. 421/2010 &Connected realistic price unless and until the reasons for such sharp rise are explained and there is no explanation to justi fy the adoption of Delhi Jal Board instance to determine the market value of the acquired land in question.

¶8As regards the potentiality of the acquired land in question is concerned, it is contended by learned Senior counsel for the respondents that no development activity took place in the vicinity nor any building activity had started in the adjoining areas despite Village Masoodabad being declared as urban and so the decisions relied upon by the appellants/claimants are distinguishable on facts.

¶9In the appeals preferred by the respondents, enhancement in the compensation amount is assailed on the ground that the annual increase to be given is dependent upon the nature of evidence led and in the instant matters, there is no evidence shov^nngincrease in the market price of the land in question till its acquisition. It is asserted that doing away of classification of acquired lands in question by Reference Court is illogical and without any justification. Thus, setting aside of the impugned judgment and restoring of the Award of the Land Acquisition Collector is sought by the respondents.

¶10Factors and test to determine the true market value of the acquired land have been restated by the Apex Court in its recent decision in Raclha Muclaliyar vs. Special Tehsildar (Land Acquisition) Tamil Nadu Housing Board, (2010) 13 SCC 384, in these words:- "Comparable sales instances are the safest method for determining the market value of the acquired land and as laid down in Shaji Kuriakose v. Indian Oil Corpn. Ltd.,

(2001) 7 SCC 650, it should satisfy the factors, inter alia, (]) the sale must be a genuine transaction; (2) the sale deed must have been executed at the time proximate to the date of issuance of notification under Section 4 of the Act: (3) ,A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 5 •-• \V.- the land coveredby the sale must be in the vicinityof the acquired land; (4) the land covered by the sale must he similarto the acquiredland; and (5) size of the plot of the land covered by the sale be comparable to the acquired - . land. The sales instancesshouldpreferablybe closestto the date of the notificationas then alone it would satisfy the touchstone of the principles contemplated under Section 23 of the Act, as held in Kanwar Singh v. Union of India

(1998)8 see 136." 1]. Having heard learned counsel for the parties in these matters and upon perusal of the impugned judgment, evidence on record and the decisions cited, I proceed on the premise that the burden of proving inadequacy of the compensation amount is upon the appellants/claimants. Now it is to be seen as to whether the appellants/claimantshave been successfulin dischargingthis burden or not.

¶12No doubt, purpose for which the acquisition is made is an importantfactor, but the question as to whether the acquired land has potential value or not, is primarily one of fact depending upon its condition,situation,user to which it is put or is reasonablycapable of being put and proximity to residential, commercial or industrial or institutional area. The existing amenities like water, electricity, possibilityoi their furtherextensionand the prospectsofdevelopmentin the area have to be taken into consideration.It has been so reiteratedby the Apex Court in AUna Sin^ih (supra). It is in this context, 1 have scrutinizedthe evidence on record and 1 fmd that there is hardly any evidence regarding the topographyof the area adjoining the acquired land in questionand the evidenceled regardingthe aks shizra (Ex.PW-2/1) ofthis villagedoes not throw any light on .this vital aspcct, except that the evidence led to prove this document adversely reflects that on the easternside oi VillageMasoodahad,there is Najafgarhdrain, which l-A.App.No. 421/2010&ConnectedAppeafsofViHagcMasoodabad Page6 instead of enhancingthe potentiality,rather diminishesit. The witness who was got examined to prove the ciLs shizra ol Village Nangli Sakrawali(l^x.PW-4/1)concedesthat the metalledroad betweenVillage Nangli Sakrawati and Village Masoodabadis not reilected in the aks shizra.Evidenceofthis witness(PW-4) insteadofadvancingthe case of the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredland in question.

¶13There is no evidenceto establishthe comparabilityofthe acquired lands under Award (Bx.PW-1/3)pertainingto VillageMangolpurKhurd and under Award (Ex.PW-lM)of VillageMohainmadpurMunirkawith the acquiredland in question.Rather, as per-evidenceof the concerned official (PW-10), Award (Ex.PW-10/1)pertainedto West Patel Nagar for Metro Project. Thus, in the considered opinion of this Court, ReferenceCourthas rightlyexcludedthe aforesaidAwards (Hx.PW-1/3 & Hx.PW-1/4)to determinethe fair marketvalue ol the acquiredland in question. Selfservingdepositionof claimantsregardingpotentialityol acquiredlands in question,in the absence of corroborativeevidence,is not enough to return positivefinding on this crucial aspect, particularly in view of the factthatevidenceregardingindustriesbeing there in the vicinityofacquiredlands is lacking.

¶14So fer as the DelhiJal Boardinstance(Ex.PW-4/1)is concerned, 1find that even its comparabilitywith acquired land in question is not establishedas the witness (PW-5) who has deposed in respect of this transactionhas concededthat he is not able to tell the distancefrom the said land to the land in question.Therefore,ReferenceCourt has rightly not reliedupon the DelhiJal Boardinstance(Ex.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthat theie is no Governmenthospitalor collegein VillageMasoodabadand the evidence ,A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad P'lRc7 / regardingthe acquired land in question being surroundedby developed colonies is lacking. In the face of such deficientevidence, there is no scope for enhancementof compensationin the instant appeals. Such a conclusion is being drawn while keeping in view the ratio of the precedents cited. Maving failed to establish the potentiality of the acquired land in question, the appellants/claimantshave to remain content with the assessment of compensation on, the basis of the indicativeprice of the agriculturalland by Governmentof NCT of Delhi as undisputedly, the acquired land in question were being used for agriculturalpurposeat the time of its acquisition.

¶16Upon scrutiny of the evidence on record, it becomes quite apparentthat despite VillageMasoodabadbeing declared as urban, the acquiredland in questionwere being used for agriculturalpurposeby the appellants/claimantsand so, adoption of indicativeprice of agricultural lands by Government of NCT of Delhi appears to be a reasonable criteria for determining the market value of the acquired land in question, as on the date of Notificationunder Section 4 of the Land AcquisitionAct, 1894. Such a view is being taken as the acquiredland in question was admittedlyundevelopedand therefore, adoption ofDDA auctionrates or L&DO rates is not permissiblein view ofthe dictum of the Apex Court in Lai Chand (supra), which has been quoted with approval by the Apex Court in its latest decision in ThakurKuldeep Singh (supra).

¶17Regardmg increase of 10% per annum over and above the minimum indicativeprice hxed by Governmentof NCT of Delhi, the same cannot be assailed by the respondentas the Reference Court has done so while relying upon decision of ttie Apex Court in Union of India vs. Harpm, (2009) 14 SCC 375. Tliis Court finds that the I.A.App.Mo. 421/2010&. ConnectedAppealsofVillageMasoodl^ Page 8 ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10% per annum while relyingupon the decisionin Harpat(supra).

¶18In the light of the fore-goingnarration,f find no inllrmityin the impugned judgment in which lair compensation has been assessed in icspectof the acquired land in question. ReferenceCourt has rightlynot classified the acquired land in question into 'A' category and 'B' category, as Land AcquisitionCollector in the Award in question has unequivocally stated that no classification of the acquired land is requiredto be done as the acquiredland is leveled. J9. Consequentially,the appealsofthe appellants/claimantsas well as appealsofUnionofIndiaare dismissed,while leavingthe partiesto bear their own costs. Registry is directedto remit.thecompensationamount, if any, depositedby eitherside with the RegistrarGeneral of this Court, to the concerned Reference Court. '"TSUNTLGAUR) . JUDGE March 14, 2012 pkb Masoodabad g

Oi IN THE HIGH COURT OF DELHI AT NEW DELHI + LA. App. No. 21/2012 Reserved on ; February 23, 2012 Pronounced on : March 14, 2012 UNIONOF INDIA ••-APPELLANT Through: Mr.SanjayPoddar,SeniorAdvocate withMr.SanjayPathalc,Ms.K.Kiran Pathak, Mr.Surya Nath Pandey, Mr.Yeeshu Jain and Ms.Navlin Swain, Advocates for LAC/UOI VERSUS ASHOKKUMARKAPUR& ORS. ••.RESPONDENTS Through: Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Suldida Dhamija and Mr.B.K.Routray, Advocates (Relatingto NotificationNo. F.7/60/2001/L&B/LA/MRTS(S/W)/7674 of 05.08.2003issuedunder Section4 of the Land AcquisitionAct, 1894 & Award No. 5/2005-06of VillageMasoodabad,Delhi) CORAM: HON'BLE MR. JUSTICE SUNIL GAUR