Preeti Sharma 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 & Am. March 14,2012 pkb 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 COURT OF DFXHl AT NEW DELHI Resei-vedon ; February08, 2012 Pronouncedon : March 14, 2012

1.A.APP.421/2010(VILLAGEMASOODABAD) SURJtSHPRASADaliasHARIKISHAN Appellant Ihrough: Mr.B.D.Sharma,Mr.S.K.Rout, Ms.SukhdaDhamijaand Mr.B.K.Routray,Advocates versus UNION OF INDIA &ANR. Through: ••••• Respondents Mr.SanjayPoddar,SeniorAdvocate with Mr.SanjayPathak,Ms.K.Kiran Iathak,Mr.SuryaNath Pandcy, Mr.YeeshuJain and IVfs.NavIin'Swain. Advocates foi" I.AC/UOI f.A.App. No. I-A.App.No. LA.App. No. LA.App. No. LA.App.No. LA.App. No. I-A.App.No. I^A.App.No. I^A.App. No. I-A.App.No. 1 421/2010 443/2010 455/2010 458/2010 462/2010 465/20,10 469/2010 478/2010 584/2010 012/2010 AND LA.App LA.App LA.App, LA.App. LA.App. LA.App. LA.App. LA.App. LA.App. IA.App No. 441/2010 No. 444/2010 No. 456/20] 0 No. 459/2010 No. 463/2010 No. 467/2010 • No. 470/2010 • No. 580/2010 • No. 585/2010 No. 1013/2010 LA.App. No. I'A.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App.No, 1 LA.App. No. 442/2010 446/2010 457/2010 460/2010 464/2010 468/2010 471/2010 583/2010 01 1/2010 12/2012 AND APPLAI.SPILHD by UNION OF INDIA I.A.App.No 747/20l'o lA m"' I-A.App.No. 710/2011 •.A.Ap'1,. No.-mZl LA No"' pp. iNo. /^J/2010 LA.App. No. 754/2010 Page 1 •. .,r LA.App.No. 755/2010 LA.App.No. 756/2010 LA.App.No. 858/2010 LA.App.No. 859/2010 I.A.App.No. 860/2010 I.A.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 LA.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 of05.08.2003issuedunder Section4 ofthe Land AcquisitionAct, 1894 &AwardNo. 5/2005-06ofVillageMasoodabad,Delhi) COIMM: HON'BLE MR. JUSTICE SUNIL GAUR ORDER %

14.03.2012

¶1For 'NajafgarhDepot, MKTSProject\.6\Qbighas and 13 biswas of land of Village Masoodabad was acquired vide Notificationof 5^'' August, 2003 under Section4 of the Land AcquisitionAct, 1894 which was followed by Notificationof 8"' August, 2003 under Section6 ofthe Land AcquisitionAct, 1894 resultingin passingofAwardNo.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 oftwo years, i.e., from the date of fixing of the minimum agriculturalprice uplo the date of NotiiIcation, i.e., compensation amount stood enhanced to Rs.18,84,000per acrc for the acquiredland in question. .5. In the instantappeals,lurtherenhancementof Rs.50 lacs per acre is sought by the claimants,whereasthe respondentin theirappealshave sought settingaside ofthe impugnedorder ofthe ReferenceCourt and restorationof 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 are being disposed of.

¶4On behalf of the appellants/claimants, it is urged that the learned Reference Court has wrongly treated acquired lands as agricultural land and did not appreciate the potentiality of the acquired land as building site and assessment of the compensation in respect of the acquired land ought to have been made on the basis of the average auction rate of residential and commercial plots in Dwarka and the rates charged by the DDA while allotting alternative plots is a valid basis to arrive at true market value of the acquired land in question.

¶5During the course of hearing, it was pointed out by learned counsel for the appellants/claimants that Village Masoodabad was urbanized in the year 1963 and zonal development plan was prepared by Delhi Development Authority in the year 1974 and the acquisition of the land in question was for the proposed residential purpose. Much reliance was placed upon Award (Ex.PW-1/3)pertainingto Village Mangolpur Khurd and Award (Ex.PW-1/4)of Village MohammadpurMunirka of the Land Acquisition Collector, wherein compensation was assessed while taking into considerationthe L&DO rates. It is pointed out that some parcel of acquired land abuts the main Dclhi-Najafgarh metalled road and in the adjoining Village Nangli Sakrawati, there are industries and Najafgarh Industrial Area is in the vicinity.

¶6According to the learned counsel for the appellants/claimants,the best piece of evidence, i.e. allotmentof land in VillageMasoodabadand Najafgarhby DDA to Delhi Jal Board at the rate of Rs.20 lacs per acre in the year 1993 has been illegallydiscarded by the Reference Court. Reliance is placed upon the decisions reported in Tindey & Ors. Vs. UnionofIndia&Am, 2000(54)DRJ(DB) 384; P.N.Singhv.v. Unionof AApp. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page3 India, 1997 I AD (Del) 83; Hari Chand vs. Union ofIndia, 91 (2001) DL I 602; DelhiDevelopmentAuthorityvs. LandAcquisitionCollector & Ors., 130(2006)D'F 1(DB);AtmaSingh (died) throughLRs vs. State of Haryana tS Anr., AIR 2008 SC 709; Mahabir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors., (1987) 1 SCC 587; Tliakur Kuldeep Singh (D) Thr. L.R. & Ors vs. Union of India & Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs & Ors. rv. Union ofIndia & Anr., 2004 VIII AD (SC) 37; Om Prakashvs. StateofHaryana&Ors, 2011 IV AD (SC) 382; Sagunthala(dead) through LRs v.v. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Maliesh Dattatray Thirthkarvs. State ofMaharashtra,AIR 2009 SC 2238, to assert that the compensationclaimedin these appealsis Just and reasonable.

¶7On behalfof the respondents,it was asserted by learned Senior Counselfor the respondentsthat adoptionofthe auctionrates ofDDA or L&DO rates in respectof agriculturalland stands negated by the Apex Courtin decisionin Lai Chandvs. Union ofIndiaandAm., (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 ol Village Mangolpur Khurd and Village MohainmadpurMunirkaarc ofno avail and the instanceofallotmentof land by DDA in favour of Delhi .Jal Board cannot be treated to be representativeprice ofthe lands in the vicinityas the evidenceis lacking legaidingsaid instancesto 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 ashortperiodthere is asharp increasein price,than the usual prevalenttrend in the market,such an instancecannotbe taken as I^A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page4 m. • W-lealistic price unless and until the reasons for such shaip rise are explainedand there is no explanationto justifythe adoptionofDelhi Jal Board instance to determinethe market value of the acquired land in question.

¶8As regards the potentialityof the acquired land in question is concerned,it is contendedby learnedSeniorcounselfor the respondents that no developmentactivitytook place in the vicinitynor any building activityhad started in the adjoiningareas despite Village Masoodabad being declared as urban and so the decisions relied upon by the appellants/claimantsare distinguishableon facts.

¶9In the appeals preferred by the respondents,enhancementin the compensationamount is assailedon 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 of classificationof acquired lands in question by Reference Court is illogical and without any justification. Thus, setting aside of the impugnedjudgmentand restoringofthe Award ofthe Land Acquisition Collectoris soughtby the respondents.

¶10Factoisand test to determinethe true marketvalue ofthe acquired land have been restated by the Apex Court in its recent decision in Radha Mudaliyar vs. Special TehsUdar (Land Acquisition) Tamil NaduHousingBoard,(2010) 13 SCC 384, in thesewords;- "Comparablesales instances are the safest methodfor determiningthe market value of the acquiredland and as laid down in Shaji Kuriakose v, Indian Oil Corpn. Ltd.,

(2001) 7SCC 650, it shouldsatisfythefactors, inter alia,

(1) the sale must be a genuinetransaction;(2).the saledeed must have been executedat the time proximateto the date of issuanceofnotificationunder Section 4 ofthe Act; (3) [AApp.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 acquired land; 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 the principles contemplatedunder Section 23 of the Act, as held in Kanwar Singh v. Union of India,

(1998)8 see 136. "

¶11Having 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 successflilin dischargingthis burden or not.

¶12No doubt, purpose for which the acquisition is made is an importantfactoi, 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 aiea. Ihe existing amenities like water, electricity, possibilityoftheir Hirtherextensionand 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 scrutmizedthe evidence on record and I find that there is hardly any evidence regardingthe topographyof the area adjoiningthe acquired land in questionand the evidenceled regardingthe aks shizra(Eix.PW-2/1) of this villagedoes not throw any light on this vital aspect, except that the evidence led to prove this documentadverselyreflects that on the easternside ofVillageMasoodabad,there is Najafgarhdrain, which I.A.App,No. 421/2010&ConnectedAppeaLsofVillageMasoodabad instead of enhancingthe potentiality,ratlierdiminishesit. The witness who was got examined to prove the aks shixra of Village Nangli Sakrawati(Ex.PW-4/1)concedesthatthe metalledroad betweenVillage Nangli Sakrawati and VillageMasoodabadis not reflected in the aks shizra.Evidenceofthis witness(PW-4)insteadofadvancingthe case of the appeilants/claimants-regarding the potentiality, reduces the potentialityofthe acquiredland in question.

¶13There is no evidenceto establishthe comparabilityofthe acqun-ed landsunderAward(Ex.PW-1/3)pertainingto VillageMangolpurKhurd and under Award (Ex.PW-1/4)ofVillageMohammadpiirMunirkawith the acquiredland in question.Rather, as per evidenceofthe 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 &Ex.PW-1/4)to determinethe fair marketvalueofthe acquiredland in question.Self servingdepositionof claimantsregardingpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is not enoughto return positivefinding on this crucial aspect, particularly in view of the fact that evidenceregardingindustriesbeing there in tjie 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-S) 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 VillageMasoodabad.and the evidence LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page7 regarding the acquired land in question being surrounded by developed colonies is lacking. In the face of such deficient evidence, there is no scope for enhancement of compensation in 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 acquired land in question, the appellants/claimants have to. remain content with the assessment of compensation on the basis of the indicative price of the agricultural land by Government of NCT of Delhi as undisputedly, the acquired land in question were being used for agriculturalpurposeatthe time of itsacquisition.

¶16Upon scrutiny of the evidence on record, it becomes quite apparentthat despite VillageMasoodabadbeing declared as 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 Notification under Section 4 of the Land. AcquisitionAct, 1894. Such a view is beingtaken as the acquiredland in question was admittedlyundevelopedand therefore,adoptionofDDA auction rates or L&DO rates is not permissible in 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 ThakurKuldeep 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. HarpaU (2009) 14 SCC 375. This Court finds that the I^A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 8 ReferenceCourt wasjustifiedin grantingthe aforesaidincreaseof 10% perannum wliilerelyingupon the decisionin Harpat(supra).

¶18In tlie light of the fore-goingnarration,Ifind no infirmityin Ihe 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 Land AcquisitionCollectorin the Award in question has unequivocally stated that no classificationof the acquired land is requiredto be doneas the acquiredland is leveled.

¶19Consequentially,the appealsofthe appellants/claimantsas well as appealsofUnionofIndiaaredismissed,whileleavingthe partiesto bear their own costs. Registryis directedto remit the compensationamount. Ifany, depositedby eitherside with the RegistrarGeneralofthis Court, to the concernedReferenceCourt. March 14, 2012 pkb 5UNILGAUR) JUDGE Page 9

+ L % IN THE HIGH COURT OF DELHI AT NEW DELHI LA.APP. 446/2010 PREETI SHARMA Through: versus UNION OF INDIA & ANR Through: Reserved on : February 08, 2012 Pronounced on ; March 14, 2012 Appellant Mr.B.D.Sharma, Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates 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