Gopal Dass 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 fIL 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. TN THE high COURT OF DELHI AT NEW DELHI Reservedon : February08, 2012 Pronouncedon : March 14, 2012 I^A.APP.42j/2010(VILLAGEMASOODAIMD) SIJRI-SHPRASADaliasIlARI KLSHAN AnDellant Through: MrJBilSharma,MnS^'C Ms.SukhdaDhamijaand Mr.B.K.Routray,Advocates versus miON OF INi:)IA&ANR. Through: Respondents Mr.SanjayPoddar,SeniorAdvocate with Mr.SanjayPathak,Ms.K.Kiran Pathak,Mr.SuryaNath Pandcy, Mr.YceshuJain and Ms.NavlinSwain AdvocatesforLAC/UOI I.A.App f^A.App I-A.App, I-A.App. r^A.App. I-A.App. LA.App. lA.App. TA.App. i-A.App No. 42]/20]0 No. 443/2010 No. 455/2010 No. 458/2010 No. 462/2010 No. 465/2010 • No. 469/2010 • No. 478/2010 •No. 584/2010 No.1012/2010 AND LA.App LA.App LA.App, LA.App. LA.App. LA.App. LA.App. LA.App. LA.App. LA.App •No. 441/2010 •No. 444/2010 No. 456/2010 No. 459/2010 No. 463/2010 No. 467/2010 No. 470/2010 • No. 580/2010 •No. 585/2010 •No.1013/2010 LA.App r.A.App LA.App, LA.App. I-A.App. LA.App. LA.App. LA.App. LA.App LA.App No. 442/2010 No. 446/2010 No. 457/2010 No. 460/2010 No. 464/2010 • No. 468/2010 • No. 471/2010 . No. 583/2010 No. 1011/2010 No. 12/2012 AND APPRALSfiled by [JNIONof INDIA r-A.App.Na 747/20IS LA App No 7w"mo !a'a"''' ' o-«.i A,,..,....iisjssr Page 1 r.A.App. No. LA.App; No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. 755/2010' LA.App.No. 756/2010 LA.App. No. 858/2010 859/2010 LA.App.No. 860/2010 LA.App. No. 861/2010 LA.App. No. 863/2010 [.A.App. No. 865/2010 LA.App. No. 867/2010 LA.App. No. 868/2010 LA.App.No. 267/2011 LA.App. No. 752/2010 LA.App. No. 56/2012 862/2010 866/2010 869/2010 21/2012 (Relating to Notification No. F.7/60/2001/L&B/LA/MRTS(S/W)/7674 of05.08.2003issuedunder Section4 ofthe Land AcquisitionAct, 1894 &AwardNo. 5/2005-06ofVillageMasoodabad,Delhi) COllAM: HON'BLE MR. JUSTICE SUNIL GAUR ORDER %

14.03.2012

¶1For 'NajafgarhDepot, MKTS Project',610 bighas and 13 biswas , of land of Village Masoodabad was acquired vide Notificationof 5^'^ August, 2003 under Section4 ofthe Land AcquisitionAct, 1894 which was followed by Notificationof8"' August, 2003 under Section6 ofthe Land AcquisitionAct, 1894 resultingin passingofAward No.5/2005-06 grantingcompensationat the rate of Rs.15.70 lacs per acre on the basis of indicativeprice fixed by the Governinentof NCT of Delhi for the agricultural lands in Delhi.

¶2In the reference sought by the claimants, interest @10% per annum was grantedby the ReferenceCourt for the period of two years, i.e., from the date of fixing of the minimum agriculturalprice upto the date ot 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 soughtby the claimants,whereasthe respondentin theirappealshave sought settingaside of the impugned order of the ReferenceCourt and lestorationof the Award. Since the grounds urged in these appeals is lAApp. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 2 ' ' ,"V-common, therefore, by this common order, these appeals are being disposed of.

¶4On behalf of the appellants/claimants, it is urged that the leamed Reference Court has wrongly treated acquired lands as agricultural land and did not appreciate the potentiality of the acquired land as building site and assessmentof the compensationin respect of 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 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 urbanizedin the year 1963 and zonal developmentplan was preparedby Delhi DevelopmentAuthorityin the year 1974 and the acquisitionof the land in questionwas for the proposedresidentialpurpose.Much reliance was placed upon Av/ard (lix.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 Delhi-Najafgarh metalled road and in the adjoining Village Nangli Sakrawati, there are industries and Najafgarh Industrial Area is in the vicinity.

¶6Accordingto the learned counsel for the appellants/claimants,the best piece of evidence, i.e. allotmentof land in Village Masoodabadand Najafgarhby DDA to Delhi Jal Board at the rate of Rs.20 lacs per acre in the year 1993 has been illegally discarded by the Reference Court. Reliance is placed upon the decisions reported in Tindey & Ors. Vs. Union ofIndia &Anr, 2000(54)DRJ(DB) 384; P.N.Singhvs. Union of LA.App.No. 421/2010 &ConnectedAppealsofVillageMasoodabad Page 3 India, 1997 I AD (Del) 83; Hari Chandvs. Union of India, 9] (2001) Di;r 602; DelhiDevelopmentAuthonty LandAcquisitionCollector &Ors., 130(2006)D1 1(DB);AtmaSingh (died) throughLRs rv. State of IJaryana & Am., AIR 2008 SC 709; Mahahir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors., (1987) 1 SCC 587; Thakur KuldeepSingh (D) Thr. L.R. & Ors vs. Union ofIndia & Ors., AIR 2010 SC 1272; Ont Prakash (D) by LRs Ors. Union ofIndia & Anr., 2004 VIII AD (SC) 37; Om Prakashvs. StateofHaryana&Ors, 2011 IV AD (SC) 382; Sagunthala(dead) through LRs rv. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thirthkarvs. State ofMaharashtra,AIR 2009 SC 2238, to assert that ,,thecompensationclaimedin theseappealsis justand reasonable,

¶7On behalfof the respondents,it was asserted by'learnedSenior Counsel for the respondentsthat adoptionofthe auctionratesofDDA or L&DO rates in respectof agriculturalland 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 acquiredland mquestioncontinuedto be used as agriculturalland and therefore, instances of Village Mangolpur Kliurd and Village MohammadpurMunirkaare ofno avail and the instanceofallotmentof land by DDA in favour of Delhi Jal Board cannot be treated to be representativepriceofthe lands in the vicinityas the evidenceis lacking regarding said instances to be comparablefor determiningthe market value o( the land in question.Reliancewas placed upon decisionof the ' Apex Court in Satpal&Ors. Vs. Union ofIndia, (1997) 11SCC 423 to assertthat ifmashortperiodthere is asharp increasein price,than the usual prevalenttrend in the market,such an instancecannot be taken as No. 421/2010&ConnectedAppealsofVillageMasoodabad /-• •0 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,itis 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 If compensationamount is assailedon the ground that the annual increase to be given is dependent upon the nature of evidence led and in the instantmatteis,there is no evidenceshowingincreasein the marketprice I ofthe land in questiontill its acquisition.It is assertedthat doing away of classificationof acquired lands in question by Reference Court is i_, illogical and without any justification. Thus, setting aside of the F-' • impugnedjudgmentand restoringofthe Award ofthe Land Acquisition •i Collectoris soughtby the respondents.

¶10Factorsand 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 these words:- "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 shouldsatisfy thefactors, inter alia,

(1) the sale must be agenuinetransaction;(2) the saledeed must have been executedat the time proximateto the date . ofissuanceofnotificationunder Section 4 ofthe Act; (3) LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad ' p^ges • - 4? the land covered by the sale must be in the vicinity of the acquired land; (4) the land covered by the sale must he similar to the acquired land; and (5) size of theplot of the land covered by the sale be comparable to the acquired. land. The sales instances shouldpreferably be closest to the date of the notification as 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. "

¶11Having heard learned counsel for the parties in these matters and upon perusal ol 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, possibilityoftheirfurtherextensionand the prospectsofdevelopmentin the area have to be taken into consideration.It has been so reiteratedby the Apex Court in AUna Singh (supra). It is in this context, I have scrutinizedthe evidence on rccord and I find 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 thi'ow any light on this vital aspect, except that the evidence led to prove this documentadverselyreflects that on the easternside of VillageMasoodabad,there is Najafgarhdrain, which LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 6 r / instead of enlmncingllie potentiality,rather diminishesit. The witness who was got examined to prove the aks shizra of Village Nangb Sah-awali(Ex.PW-4/1)concedesthatthe metalledroad betweenVillage Nangli Sakrawatiand VillageMasoodabadis not reflected in the ah 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 VillageMangolpiirKhurd and under.Award(Ex.PW-1/4)of VillageMohammadpurMunirkawith 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 &Ex.PW-1/4)to determinethe fair marketvalueofthe acquiredland in question.Selfservingdepositionof claimantsregardmgpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is not enoughto return positivefindingon this crucial aspcct, particularly 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, 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,ReferenceCourthas rightly not reliedupontheDelhiJalBoardinstance(Ex.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthatthereis no Governmenthospitalor collegein VillageMasoodabadand the evidence l.A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad ' regardingthe acquired land in questionbeing surroundedby developed colonies is lacking. In the face of such deficient evidence, 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 acquired land in . question, the appellants/claimantshave to remain content with the assessment of compensation on the basis of the indicativepriceof the agriculturalland by Governmentof NCT of Delhi as undisputediy,the acquired land in question were being used for agriculturalpurposeatthe time of its acquisition.

¶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, adoption of DDA auction rates or L&DO rates is not permissiblein view of the dictum of the Apex Court in Lai Chanel (supra), which has been quoted with approval by the Apex Court in its latest decision in Thakur Kuldeep 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 Reference Court has done so while relying upon decision of the Apex Court in Union of India vs. Harpai, (2009) 14 SCC 375. This Court finds that the I.A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page8 Si r ReferenceCourt wasjustifiedin grantingthe aforesaidincreaseof 10% perannum whilerelyinguponthe decisionin Harpat(supra).

¶18In the iightof the fore-goingnarration,I find no innrmityin 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 'IV category, as I.and AcquisitionCollectorin the Award in question has unequivocally 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,whileleavingthe partiesto bear their own costs.Registryis directedto remitthe compensationamount. Ifany, depositedby eitherside with the RegistrarGeneralofthis Court,' to the concernedReferenceCourt. March 14, 2012 pkb ^A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad r,'-- - —w— fSUNILGAUR) JUDGE Page 9

IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.APP. 442/2010 Reserved on : February 08, 2012 Pronounced on : March 14, 2012 GOPAL DASS Appellant Through: Mr.B.D.Sharma, Mr.S.K.Rout, ^ Ms.SukhdaDhamija and Mr.B.K.Routray, Advocates versus 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: HON'BLE MR. JUSTICE SUNIL GAUR