Rajiv Lochan v. Union of India & Anr

ORDER

14.03.2012 For orders see LA.APP.421/2010, titled as Suresh Prasad alias Hari Kishan V5. Union ofIndia & Am. March 14, 2012 pkb JUNIL GAUR) JUDGE 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. v IN HIE HIGH COURT OF DELHI AT NEW DELHI Reserved on ; February 08, 2012 Pronounced on ; March 14, 2012 LA.APP.421/2010(VILLAGEMASOODABAD) SlJRIiSIlPRASADalias IIARI K.ISI1AN Appellant Through: Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates versus UNION OI'-INDIA&ANR, Respondenls Through: Mr.SanjayPoddar,Senior Advocate with Mr.Sanjay Pathak, Ms.K.Ki ran Pathak,Mr.SuryaNath Pandey, Mr.Yceshu Jain and Ms.Navlin Swain, Advocates for LAC/UOI AND LA.App.No. 421/2010 (h^pp.No. 441/2010] LA.App. No. 442/2010 LA.App. No. 443/2010 lX7^j5]rNrr^l:4472^^ I.A.App.No. 446/2010 LA.App.No. 455/2010 LA.App.No. 456/2010 LA.App. No. 457/2010 LA.App.No. 458/2010 LA.App.No. 459/2010 LA.App. No, 460/2010 LA.App.No. 462/2010 I.A.App.No. 463/2010 LA.App.No. 464/2010 I.A.App.No. 465/2010 LA.App.No. 467/2010 LA.App.No. 468/2010 LA.App.No. 469/2010 LA.App.No. 470/2010 LA.App.No. 471/2010 LA.App.No. 478/2010 LA.App.No. 580/2010 LA.App. No. 583/2010 [.A.App.No. 584/2010 lA.App.No. 585/2010 LA..App.No.101 1/2010

1.A.App.No.1012/2010 LA.App.No.1013/2010 LA.App.No. 12/2012 AND APPFALS FILFD BY UNION OF INDIA LA.App.No. 746/2010 LA.App. No. 59/2012 LA.App.No. 710/2011 LA.App.No. 747/2010 LA.App.No. 748/2010 LA.App.No. 749/2010 LA.App.No. 751/2010 LA.App,No. 753/2010 LA.App.No. 754/2010 I.A.App,No, 421/2010&ConnectedAppealsofVillagcMasoodahad V % LA.App.No. 755/2010 LA.App. No. 756/2010 LA.App. No. 858/2010 LA.App.No. 859/2010 LA.App.No. 860/2010-LA.App.No. 861/2010 LA.App.No. 862/2010 LA.App.No. 863/2010 LA.App.No. 865/2010 LA.App.No.'866/2010 LA.App. No. 867/2010 lA.App. No. 868/2010 LA.App. No. 869/2010 LA.App.No. 267/2011 l.A.App.No. 752/2010 LA.App. No. 21/2012 LA.App. No. 56/2012 (Relating to Notification No. F.7/60/2001/L&B/LA/MRTS(S/W)/7674 of 05.08.2003issuedunder Section4 ofthe Land AcquisitionAct, 1894 &AwardNo. 5/2005-06ofVillageMasoodabad,Delhi) COl^M: HON'BLE MR. JUSTICE SUNIL GAUR ORDER

14.03.2012

¶1bor NajafgarhDepot, MKTS Project\ 610 bighas and 13 biswas of land of Village Masoodabadwas acquired vide Notificationof 5"' August, 2003 under Section 4 of the Land AcquisitionAct, 1894 which was followed by Notificationof 8"^ August, 2003 under Section6 of the Land AcquisitionAct, 1894 resultingin passingofAward No.5/2005-06 grantingcompensationat the rate ofRs.15.70 lacs per acre on the basis of indicativeprice fixed by the Governmentof NCT of Delhi for the agricultural lands in Delhi.

¶2In the reference sought by the claimants, interest @10% per annum was granted by the ReferenceCourt for the period of two years, i.e., from the date of fixing of the minimuin agriculturalprice upto the date oi -Notification, i.e., compensation amount stood enhanced to Rs.18,84,000per acre for the acquiredland in question.

¶3In the instantappeals,furtherenhancementof Rs.50 lacs per acre is sought by the claimants,whereasthe respondentin their appealshave sought setting aside of the impugned order ofthe ReferenceCourt and restorationol the Award. Since the grounds urged in these appeals is IAApp. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 2 common, therefore, by this common-order, these appeals arc being disposed of.

¶4On bchall ofthe appellants/claimants,it is urged that the learned ReferenceCourt has wronglytreated acquired lands as agriculturalland and did not appreciatethe potentialityof the acquiredland as building site and assessmentof the compensationin respectof the acquiredland ought to have been made on the basis of the average auction rate of residentialand commercialplots in Dwarkaand the rates chargedby the DDA while allottingalternativeplots is a valid basis to arrive at true marketvalue ofthe acquiredland in question.

¶5During the course of hearing, it was pointed out by learned counsel for the appellants/claimantsthat Village Masoodabad was urbanizedin the year 1963 and zonal developmentplan was preparedby Delhi DevelopmentAuthorityin the year 1974 and the acquisitionofthe land mquestionwas for the proposedresidentialpurpose.Much rcliancc was placed upon Award (Ex.PW-1/3)pertainingto Village Maiigolpur Khurd and Award (Ex.PW-1/4)of Village MohammadpurMunirka of the Land Acquisition Collector, wherein compensationwas assessed while taking into considerationthe L&DO rates. It is pointed out that some parcel oi: acquired land abuts the main Delhi-Najafgarhmetalled road and in the adjoiningVillageNangli Sakrawati,there are industries and NajafgarhIndustrialArea is in the vicinity.

¶6Accordingto the learnedcounsel for the appellants/claimants,the best piece ot evidence,i.e. allotmentof land in VillageMasoodabadand Najalgarhby DDA to Delhi Jal Board at the rate of Rs.20 lacs per acre mthe year 1993 has been illegallydiscardedby the ReferenceCourt. Reliance is placed upon the decisions reported in Tindey &Ors, Vs. UnionofIndia&Anr, 2000(54)DRJ(DB) 384; P.N.Singhvs. Unionof •' lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 3 • Q India, 1997 I AD (Dei) 83; Hnri Chand vs. Union ofIndia, 91 (2001) Di;r 602; DelhiDevelopmentAuthorityvs. LandAcquisitionCollector Ors., 1j0(2006)DI AtmaSingh (died) throughLRs ra. State of Haryana & Anr., AIR 2008 SC 709; Mahahir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors., (1987) 1 SCC 587; Thakur Kuldeep Singh (D) Thr. L.R. & Ors vs. Union ofIndia &Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs &Ors. kv. Union ofIndia & Anr., 2004 VIIT AD (SC) 37; Oni Prakash vs. StateofHaryana&Ors, 2011 IV AD (SC) 382; Sagunthala (dead) through LRs vs. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thirthkarvs. State ofMaharashtra,AIR 2009 SC 2238, to assert that Ihc compensationclaimedin these appealsis just and reasonable.

¶7On behalf of the respondents,it was asserted by learned Senior Counselfor the respondentsthat adoptionofthe auctionrates ofDDA or L&DO rates mrespectof agricultural,land stands negated by the Apex Court in decisionin Lai Chandvs. Union ofIndiaandAnr., (2009) 15 SCC 769. It was also urged by learnedcounsel for the respondentsthat despite Village Masoodabad being declared to be urbanized, the acquired land in questioncontinuedto be used as agriculturalland and therefore, instances of Village Mangolpur Khurd and Village MohammadpurMunirkaare of no avail and the instanceofallotmentof land by DDA in favour of Delhi .lal Board cannot be treated to be representativepriceofthe lands in the vicinityas the evidenceis lacking regardingsaid instances to be comparablefor determiningthe market value ofthe land in question.Reliancewas placed upon decisionofthe Apex Courtin Satpal&Ors. Vs. UnionofIndia,(1997) 11 SCC 423 to assertthat if in ashort period there is asharp,increasein price,than the _2lWnt trend in the market,such an instancecannotbe taken as Connected •p rccilistic price unless and until the reasons for such sharp rise are explained and there is no explanation to Justify 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 showing increase 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 determinethe true market value of the acquired land have been restated by the Apex Court in its recent decision in Radha Mudaliyar vs. Special TehsUdar (Land Acquisition) Tamil Nadu Housing Board, (2010) 13 SCC 384, in these words "Comparable sales instances are the safest methodfor determining the market value of the acqidred.land and as laid down in Shaji Kuriakose v. Indian Oil Corpn. Ltd.,

(2001) 7 SCC 650, it shouldsatisf}> thefactors, inter alia,

(1) the sale must be a genuinetransaction:(2) the sale deed must have been executedat the time proximateto the date of issuanceof notificationunder Section 4 of the Act; (3) .A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 5 i' the land coveredby the sale must be in the vicinityof the acquired land; (4) the land covered by the sale must be similarto. the acquiredland.; and (5) size of the plot of the land covered by the sale be comparable to the acquired land. The sales instancesshouldpreferably be closestto the date of the notificationas then alone it would satisfy the touchstoneof theprinciples contemplated,under Section 23 of the Act, as held in Kanwar. Singh v. Union of India,

(1998)8 see 136." Having heard learned counsel for the parties in these mattersand 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 acquiredland 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, commcrcial or industrial or mstitutional area. The existing amenities like water, electricity, possibilityoftheirfurtherextensionand the prospectsofdevelopmentin the area have to be taken into consideration.It has been so reiteratedby the Apex Court mAtma Singh (supra). It is in this context, I have scrutinizedthe evidence on record and I find that there-ishardly any evidence regardingthe topographyof the area adjoiningthe acquired land in questionand the evidenceled regardingthe aks shizra(Ex.PW-2/1) ofthis villagedoes not throw any light on this vital aspect,except that the evidence led to prove this documentadverselyreflectsthat on the easternside ofVillageMasoodabad,there is Najafgarhdrain, which IAApp. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 6 ./ insteadof enhancingthe potentiahty,rather diminisliesit. The witness who was got examined to prove the aks shizra of Village Vangh Sakrawati(Ex.PW-4/1)concedesthatthe metalledroad betweenVillage Nangli Sakrawatiand VillageMasoodabadis not reflectedmthe aks shizra.Evidenceofthis wimess(PW-4)insteadofadvancingthe case of the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredland in question.

¶13Thereis no evidenceto establishthe comparabilityofthe acquired landsunderAward(F.x.PW-1/3)pertainingto VillageMangolpiirKhvd-and under Award (Ex.PW-1/4)of VillageMohammadpurMmirkawith 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(Ex.PW-1/3 &Hx.PW-1/4)to determinethe fair marketvalueofthe acquiredland in question.Selfservingdepositionof claimantsregardingpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is not enoughto returnpositivefindingon this crucialaspect, particularly in view of the fact that evidenceregardingindustriesbeing there mthe vicinityofacquiredlands is lacking.

¶14So far as the DelhiJal Boardinstance(Ex.PW-4/1)is concerned, I find that even its comparabilitywith acquiredland 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 DelhiJalBoardinstance(Ex.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthat theie is no Governmenthospitalor collegein VillageMasoodabadand the evidence l.A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 7 € legardingthe acquiredland 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. Having failed to establish the potentiality of the acquiied land in question, the appellants/claimantshave to remain contcnt with the assessment of compensation on the basis of the indicativeprice ofthe agriculturalland by GovernmentofNCT ofDelhi as undisputedly,the acquired land in question were being used for agriculturalpurposeat the time ofits acquisition.

¶16Upon scrutiny of the evidence on record, it becomes quite appaientthat despite VillageMasoodabadbeing declaredas urban, the acquiredland in questionwere beingused for agriculturalpurposeby the appellants/claimantsand so, adoptionof 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 aview is beingtaken as the acquiredland in question was admittedlyundevelopedand therefore, adoption of DDA auctionrates orL&DO rates is not permissiblein view ofthe dictum of the Apex Court in Lai Chanel (supra), which has been quoted with approval by the Apex Court in its latest decision in ThakwKuldeep Singh (supra).

¶17Regarding increase of 10% per annum over and above tlie minimum indicativeprice fixed by Governmentof NCT of Deilii, tiie same cannot be assailed by tiie respondentas the ReferenceCourt has done so while relying upon decision of the Apex Court in Union of India v., Harpa,, (2009) 14 SCC 375. This Court finds that the Appeal.ofVillage Page 8 ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10% per annum whilerelyingupon the decisionin Harpat(supra). IS. In the light of the fore-goingnarration,I find no infirmityin the impugnedjudgment in which fair compensationhas been assessed in respectofthe acquiredland in question.ReferenceCourt has rightlynot classified the acquired land in question into 'A' category and 'B' category, as I.and AcquisitionCollector in the Award in question has unequivocally stated that no classificationof the acquired land is requiredto be done as the acquiredland is leveled.

¶19Consequentially,the appealsofthe appellants/claimantsas well as appealsofUnionofIndiaare dismissed,whileleavingthe partiesto bear their own costs. Registryis directedto remit the compensationamount, if any, depositedby eitherside with the RegistrarGeneralof this Court, to the concerned Reference Court. March 14, 2012 pkb "-TSUNILGAUR) JUDGE Page 9

+ % IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 LA.APP. 441/2010 RAJIV LOCHAN versus Appellant Through: Mr.B.D.Sharma, Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates UNION OF INDIA & ANR Through: Respondent Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Ms.K.Kiran Pathak, Mr.Surya Nath Pandey, Mr.Yeeshu Jain and Ms.Navlin Swain, Advocates for LAC/UOI (Relating to Notification No. F.7/60/2001/L&B/LA/MRTS(S/W)/7674 of 05.08.2003 issued under Section 4 of the Land Acquisition Act, 1894 & Award No. 5/2005-06 of Village Masoodabad, Delhi) CORAM: ilON'BLE MR. JUSTICE SUNIL GAUR