Girish Kumar v. Union of India & Anr

ORDER

14.03.2012 For orders see LA.APP.421/2010, titled as Suresh Prasad alias Hari Kishan vs. Union ofIndia & Anr. March 14,2012 pkb JIL 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. IN THE HIGH COUR! OF DELHI AT NEW DELHI Reserved on ; February 08, 2012 Pronounced on : March 14, 2012 LA.APP.421/2010(VILLAGEMASOODABAD) SUlUtSHPRASADaliasHAJU KISHAN Appellant Through: Mr.JB.D.Sharma,Mr.S.K.Roul, Ms.Sukhda Dhamija and Mr.B.fC.Routray, Advocates versus UNION OF INDIA & ANR. Through; Respondents Mr.Sanjay Poddar, Senior Advocate with N4r.Sanjay Pathak, Ms.K.Kiran Pathak,Mr.SuryaNath Pandey, Mr.YeeshuJain and Ms.Navlin Swain, Advocates for LAC/UOI LA.App. No. FA.App. No. I.A.App. No. LA.App. No. I.A..App. No. FA.App. No. I.A.App. No. LA.App. No. I.A.App. No. l.A.App.No. 1 421/2010 443/2010 455/2010 458/2010 462/2010 4'65/2010 469/2010 478/2010 584/2010 012/2010 AND -LA^pp.No. 441/2010^ JL^pp. No. 444/20H) L/DTpp. No. 456/20To 459/2010 463/2010 467/2010 470/2010 580/2010 585/2010 1013/20] 0 LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. r.A.App. No. I.A.App:No. C^A.App. No. 1A.App. No. LA.App. No. LA.App. No.

1.A.App. No. LA.App. No. LA.App. No. LA.App. No. i-A.App.No.! LA.App. No. 442/2010 446/2010 457/2010 460/20! 0 464/2010 468/2010. 471/2010 583/2010 01 1/2010

12./2012 . AND APPEALSFILEDBY UNIONOF 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 l.A.App.No. 753/2010 LA.App.No. 754/2010 i.A.App,No. 421/2010&ConnectedAppeal.sofVillageM;-..soodabad Page 1 f.A.App.No. 755/2010' LA.App.No. 756/2010 LA.App.No. 858/2010 I.A.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 I.A.App.No. 752/2010 LA.App. No. 21/2012 LA.App. No. 56/2012 (Relating to NotificationNo. F.7/60/2001/L&B/LA/MRTS(S/W)/7674 of 05.08.2003issuedunder Section4 of theLand AcquisitionAct, 1894 & Award No. 5/2005-06ofVillageMasoodabad,Delhi) CORAM: HON'BLE MR. JUSTICE SUNIL GAUR O R D E R %

14.03.2012

¶1Lor 'NajafgarhDepot, MKTS Project',610 bighas and 13 biswas of land of Village Masoodabadwas acquired vide Notificationof 5"' August, 2003 under Section4 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 of Rs.15.70 lacs per acrc on the basis of indicative price fixed by the Government of NC'l^ c^llHlTTIbrthe-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 offixing ofthe minimum agriculturalprice upto the date of Notification, i.e., compensation amount stood enhanced to Rs.18,84,000per acre for the acquiredland in question.

¶3In the instantappeals,furtherenhancementofRs.50 lacs per acre IS soughtby the claimants,whereasthe.respondentin their appealshave sought setting aside of the impugned order of the ReferenceCourt and lestoiationol the Award. Since the grounds urged in these appeals is LA.App.No. 421/201Q&ConnectedAppealsofVillageMasoodakid ^ # common, therefore, by this common order, these appeals are being disposed of.

¶4On behalfof the appellants/claimants,it is urged that the learned ReferenceCourt has wronglytreated acquiredlands as agriculturalland and did nqt appreciatethe potentialityof the acquired land as building site and assessmentofthe compensationin respectofthe acquired laiuK 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 marketvalueofthe 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 in questionwas for the proposedresidentialpurpose.Much reliancc was placed upon Award (ltx.PW-1/3)pertainingto Village [\4angolpur Khuid and Award (l:iX.PW-l/4)of Village MohammadpurMunirka of the Land Acquisition Collector, wherein compensation was assessed while taking into considerationthe L&DO rates. It is pointed out thai some parcel ofacquired land abuts the main Dclhi-Najafgarhmetalled load and in the adjoiningVillage Nangli Sakrawati,there are industries and NajafgarhhidustrialArea is in the vicinity.

¶6Accordingto the learnedcounselfor the appellants/claimants,the bestpieceofevidence,i.e. allotmentofland in VillageMasoodabadand Najafgarhby DDA to Delhi .lal Board at the rate ofRs.20 lacs per acre in the year 1993 has been illegallydiscarded by the ReferenceCourt. Reliance is placed upon the decisions reported in Tindev &Ors. Vs. UnionofIndia&Anr, 2000(54)DRJ(DB) 384;RN.Singhvs. Unionof I.A.App,No. 421/2010&ConnectedAppealsoTviii^cMasoodabad Page 3 India, 1997 I AD (Del) 83; Had Chand vs. Union ofIndia, 91 (2001) DLT 602; DelhiDevelopmentAuthoHtyvs. LandAcquisitionCollector & Ors., 130(2006)D1 1(DB);AtmaSingh (died) throughLRs vs. 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. LR. & Ors vs. Union of India & Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs & Ors. vs. Union ofIndia & Anr., 2004 VllT AD (SC) 37; Om 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 the compensationclaimedin theseappealsis justand reasonable.

¶7On behalfof the respondents,it was asserted by learned Senior Counselfor the respondentsthat adoptionofthe auctionrates ofDDAor L&DO rates in respectof agriculturalland stands negated by the Apex Court in decision in Lai Chand Union ofIndiaandAnr., (2009) 15 SCC 769. It was also urged by learnedcounsel for the respondentsthat despite Village Masoodabad being declared to be urbanized, the acquiredland in question continued to be used as agriculturalland and thcielore, instances ol Village Mangolpur Khurd and Village MohammadpurMunirkaare ofno avail and the instanceofallotmentof land by DDA in favour of Delhi Jal Board cannot be treated to be representativepriceofthe landsin the vicinityas the evidenceis lacking regardmg said instances to be comparablefor determiningthe market value of the land in question.Reliancewas placedupon decisionof the Apex Court mSatpaliSLOrs. Vs. Union ofIndia,(1997) 11 SCC 423 to assertthat il in ashoit peiiod there is asharp increase in pricc, than the usual prevalenttrend in the market,such an instancecannot be taken as I.A.APP,No. 421/2010&ConnectedAppealsofVillageMasoodabS "./ • realistic price unless and until the reasons for sucli 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 contendedby learnedSeniorcounsel 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. t

¶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 instantmatters,'-thereis no evidenceshowingincreasein the marketprice of the land in questiontill its acquisition.It is assertedthat doing away oI classificationof acquired lands in question by Reference Court is illogical•and without any justification. Thus, setting aside of the impugnedjudgmentand restoringof the Award of the Land Acquisition Collector is sought by the respondents.

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

(2001) 7 SCC 650, it shouldsatisfy the factors, inter alia,

(1) the sale must be a genuinetransaction;(2) the sale deed must have been executedat the time proximateto the dale of issuanceof notificationunder Section 4 of the Act; (3) .A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad ' / page5 '' the land coveredby the sale must be in the vicinityof the acquired land; (4) the land covered by the sale must he similar to the acquiredland; and (5) size of the plot of the land covered by the sale be comparable to the acquired land. The sales instancesshould,preferablybe 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 m Kanwar Singh v. Union of India.

(1998)8 see 136/' I1. 1laving 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 mipoitantfactor, 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, possibilityoftheir furtherextensionand the prospectsofdevelopmentin the area have to be taken into consideration.It has been so reiteratedby the Apex Court in Atma Singh (supra). It is in this context, I have scrutinizedthe evidence on record and 1 find that there is hardly any evidence regarding the topographyof the area adjoining the acquired land in questionand the evidenceled regardingthe aks shizra (Bx.PW-2/1) ol this villagedoes not throw any light on this vital aspect, cxccpt that the evidence led to prove this documentadversely I'efiects that on the easternside ofVillage Masoodabad,there is Najafgarhdrain, which l-A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page6 instead of enhancingthe potentiality,rather diminishesit. The witness who was got examined to prove the aks shizra of Village Nan^h Sakrawati(l'.x.PW-4/l)concedesthat the metalledroad betweenVillage Nangli Sakrawati and Village Ma.wodabadis not reflected in the aks shizra.Evidenceofthis witness(PW-4)insteadofadvancingthe case of the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredland in question.

¶13Thereis no evidenceto establishthe comparabilityofthe acquired landsunderAward(Ex.PW-1/3)pertainingto VillageMangolpurKhurd and under Award (Ex.PW-1/4)ofVillageMohammadpurMunirkawith the acquiredland in question.Rather, as per evidenceof the concerned official (PW-10), Award (Ex.PW-10/1)pertained'toVv^est Patcl Nagar for Metro Project. Thus, in the considered opinion ol this Couit, ReferenceCourthas rightlyexcludedthe aforesaidAwards (hx.PW-1/3 & Ex.PW-1/4)to determinethe fair marketvalue oi the acquiredland in question. Self servingdepositionof claimantsregardingpotentialityot acquiredlands in question,in the absence of corroborativeevidence,is not enough to return positivefindingon this crucialaspect,particulaily in view of the fact that evidenceregardingindustriesbeing there in the vicinityofacquiredlands is lacking.

¶14So far as the DelhiJal Boardinstance(Ex.PW-4/1)is concerned, Tfind 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,Reference.Court has rightly not reliedupon the DelhiJal Boardinstance(Ex.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthat there is no Governmenthospitalor collegein VillageMasoodabadand the evidence lAApp.No. 421/201.0&ConnectedAppealsofVillageMasoodabad ^ Page7 ^icgaidingthe acquired land in question being surroundedby developed colonics 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 piecedents cited. Having 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 indicativepriceof the 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 apparentthat despite Village Masoodahadbeing dech^ed as urban, the acquiredland in questionwere beingused for agriculturalpurposeby the appellants/claimantsand so,.adoptionof indicativeprice of agricultural lands by C}^^^er^itof NCT of Delhi appears to be a ren.son^ criteria for determining the market value of the acquired Lnnd 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 ofDDA auctionrates or L&DO rates is not permissiblein view of the dictum of the Apex Court in Lai Chand (supra), which has been quoted with approval by the Apex Court in its latest decision in Thakiir Kulcleep Singh (supra).

¶17Regarding increase of 10% per annum over and above the minimum indicativeprice fixed by Governmentof NCT of Delhi, the same cannot be assailed by the respondentas the ReferenceCourt has done so while relying upon decision of the Apex Court in Union of India vs. Harpat, (2009) 14 SCC 375. This Court finds that the I.A.App,No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 8 f , I., ReferenceCourt was Justifiedin grantingthe aforesaidincreaseof 10% per annum while relyingupon the decisionin Harpat(supra).

¶18hi the light of the fore-goingnarration,1find no infirmityin the impugned judgment in which fair compensationhas been assessed in respectofthe acquiredland.in question.ReferenceCourt has rightlynot d^sified the acquired land in question into 'A' category and ^cfOcgory, as Land AcquisitionCollectorin the Award in q^tion has _ur^ivocally stated that no classification of the acquired land is requiredto be done as the acquiredland is leveled.

¶19Consequentially,the appealsofthe appellants/claimantsas well as appealsofUnionofIndiaare dismissed,while leavingthe partiesto bear Jj^cirown costs.Registryis^-ectedto i^^i^j^^iT^compensat amoTii^t, il any, depositedby citherside with the RegistrarGeneral of this Court, to the concerned Reference Court. lAApp. No. 421/2010&ConnectedAppealsofVillageMasoodabad JNIL GAUR) JUDGE March 14, 2012 pkb Page 9

( ) s: IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 + LA.APP. 444/2010 % GIRISH KUMAR 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 NotificationNo. F.7/60/200l/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: HON'BLE MR. JUSTICE SUNIL GAUR