Mukesh Kumar v. UOI & Anr

O R D E R

14.03.2012 For orders see LA.APP.421/2010, titled as Suresh Prasad alias Hari Kishan vs. Union of India & Anr. -tSUNIL 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 IHK HICH COURT OF DFLIIl AT NEW DELHI Reserved on : February 08. 2012 ^ Pronouneed on : Mareh 14, 2012 .A.APP.421/2010 (VILLAGE MASOODABAD) SURIiSl I PRASAD alias I lARI KIS! IAN Appellanl Ihrough; Mr.B.D.Sharma, Mr.S.K.Rout, Ms.Sukhda Dhamija and M r.B. K.RouIray, Advoeales versus UNION ()!■ INDIA & ANR. rhroLigh: Respondents Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Ms.K.Kiran Pathak, Mr.Surya Nath Pandey, Mr.Yeeshu Jain and Ms.NavIin Swain, ■Advocates for LAC/UOI AND I.A.App. No. I .A.App. No. FA.App. No. 1 .A.App. No. (UAT^p. No. LA.Af^No. LA.App. No. I.A.,App. No. F.A.App. No. I.A.App.No. ; 421/2010 443/2010 455/2010 458/2010 TOTIm 465/2010 469/2010 478/2010 584/2010 012/2010 LA.App. LA.App. LA.App. pp. A. A pp. A.App. LA.App. LA.App. LA.App. LA.App. No. 441/2010 No. 444/2010 No. 456/2010 No. 450/2010 No. 463/2010 No. 467/2010 No. 470/2010 No. 580/2010 No. 585/2010 No. 1013/2010 LA.App. I A..A pp. L.A.App. LA.App. LA..App. L.A.,App. LA..App. LA..A pp. LA.App. L.A.App. No. 442/20! 0 No. 446/2010 No. 457/2010 No 460/2010 No. 464/2010 No. 468/2010 No. 471/2010 No. 583/2010 No. 101 1/2010 No. 12/2012 AND APPEALS FIIi-D BY UNION OF INDIA LA.App. No. 746/2010 LA.App. No. 59/2012 LA.App. No. 710/201 1 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 ,A.App. No. 421/2010 & Comioctcd Appeals of Village Masoodabad bage 1 ' A' l.A.App. No. 755/2010 LA.App. No. 756/2010 I.A.App. No. 858/2010 l.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 l.A.App. No. 868/2010 LA.App. No. 869/2010 LA.App. No. 267/201 1 LA.App. No. 752/2010 LA.App. No. 21/2012 LA.App. No. 56/2012 (Relating to Notirication No. F.7/60/2001/L&B/LA/MR rS(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'RLL MR. JI STICK SDML (;AUR % O R i) E R %

14.03.2012

¶1I-or 'Najafgarh Depot. MKTS Project ',610 bighas and 13 biswas of land of Village Masoodabad was acquired vide Notification of 5"' August, 2003 under Section 4 of the Land Acquisition Act, 1894 which was tbllowed by Notification of 8"' August, 2003 under Section 6 of the Land Acquisition Act, 1894 resulting in passing of Award No.5/2005-06 granting compensation at the rate ol Rs. 15.70 lacs per acre on the basis of indicative price fixed by the Government of NC f of Delhi for the agricultural lands in Delhi.

¶2In the reference sought by the claimants, interest (//^10% per annum was granted by the Reference Gourt for the period of two years, i.e., from the date of fixing of the minimum agricultural price upto the date of Notification, i.e., compensation amount stood enhanced to Rs. 18,84,000 per acre for the acquired land in question.

¶3In the instant appeals, further enhancement of Rs.50 lacs per acre is sought by the claimants, whereas the respondent in their appeals have sought setting aside of the impugned order of the Reference Court and restoration of the Award. Since the grounds urged in these appeals is l.A.App. No. 421/2010 & Connected Appeals ofVillage Masoodabad Page 2 common, therefore, by this common order, these appeals are being disposed of.

¶4On behalf of the appellants/elaimants, 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 ol hearing, it was pointed out by learned eounsel 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 (h:x.PW-l/3) pertaining to Village Mangolpur Khurd and Award (hx.PW-I/4) of Village Mohammadpur Munirka of the Land .Acquisition Collector, wherein compensation was assessed while taking into consideration the 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.

¶6According to the learned counsel for the appellants/claimants, the best pieee ot evidence, i.e. allotment of land in Village Masoodabad and Najafgarh by DDA to Delhi Jal Board at the rate of Rs.20 lacs per acre m the year 1993 has been illegally discarded by the Reference Court. Reliance is placed upon the decisions reported in Tindey tS Ors. Kv. Union of India & Anr, 2000(54)DR.I (DB) 384; P.N.Sinfjh vs. Union of -A.App. No. 421/2010 & Connoctod Appeals of Village M^odah.id" Page .3 *5. • India, 1997 I AD (Del) 83; Hari Chand v.v. Union of India, 91 (2001) Di /i 602; Delhi Development Authority v.v. Land Acquisition Collect^}) & Ors., 130(2006) D l 1(DB); Atma Sin^dt (died) through LRs r.v. StaTe of Haryana & Anr., AIR 2008 SC 709; Mahahir Prasad Santuka and Ors. Us Collector, Cuttack and Ors., (1987) 1 SCC 587; Thakur Kuldeep Sin0t (D) Thr. L.R. & Ors vs. Union of India & Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs & Ors. v.v. Union of India & Anr., 2004 VIII AD (SC ) 37; Ont Prakash v.v. State of Haryana Ors, 201 1 iV AD (SC) 382; Sagunthala (dead) through LRs v.v. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thirthkar vs. State of Maharashtra, AIR 2009 SC 2238, to assert that the compensation claimed in these appeals is just and reasonable.

¶7On behalf of the respondents, it was asserted by learned Senior Counsel for the respondents that adoption of the auction rates of DDA or L&DO rates in respect of agricultural land stands negated by the Apex C ourt in decision in Lai Chand v.v. Union of India and Anr., (2009) 15 sex 769. It was also urged by learned counsel for the respondents that despite Village Masoodabad being declared to be urbanized, the acquired land in question continued to be used as agricultural land and therefore, instances of Village Mangolpur Khurd and Village Mohammadpur Munirka are of no avail and the instance of allotment of land by DDA in lavour ol Delhi Jal Board cannot be treated to be representative price ol the lands in the vicinity as the evidence is lacking regarding said instances to be comparable for determining the market value ol the land m question. Relirmce was placed upon decision of the Apex Court in Satpal <6 Ors. Vs. Union of India, (1997) I I SCX' 423 to assert that if in a short period there is a sharp increase in price, than the iKSLial prevalent trend in the market, such an instance cannot be taken as l-A.App. No. 421/2010 & Connected Appeai.s !)f fajte 4 A, t realistic price unless and until the reasons for such sharp rise are explained and there is no explanation to justify the adoption of Delhi .lal 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 ol 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 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 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 sati.sf-the factors, inter alia,

(1) the sale must he a genuine transaction:-(l) 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) lAApp. No. 421/2010 & Connected Appeals of Village Masoodabad Page 5 1 i the land covered by the sate must he in the vicinity of the acquired land: (4) the land covered by the sale must be 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 instances should preferably be elosest to the date of the notification as then alone it would satisfy the touchstone of the principles contemj)la1ed under Section 23 of the .Act. as held in Kanwar Singh v. Union of India,

(1998)8 see 136." Having heard learned eounsel for the parlies 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/claimants have been successful in discharging this burden or not.

¶12No doubt, purpose for which the acquisition is made is an important factor, but the question as to whether the acquired land has potential value or not, is primarily one ol fact depending upon its condition, situation, user to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial or institutional area. The existing amenities like water, electricity, possibility ol their iurther extension and the prospects oi development in the aiea have to be taken into consideration. It has been so reiterated by the Apex Court in Atnw Singh (supra). It is in this context, 1 have scrutinized the evidence on record and I llnd that there is hardly any evidence regarding the topography of the area adjoining the acquired land in question and the evidence led regarding the aks shizra (Tx.PW- /I) ol this village docs not throw any light on this vital aspect, except that the evidence led to prove this document adversely rcllects that on the eastern side ol Village Masoodabad, there is Najafgarh drain, which l.A.App. No. 421/2010 & Connected Appeals of Village Ma.soodabad Page 6 n n 4-p: I instead of enhancing the potentiality, rather diminishes it. The witness who was got examined to prove the aks .shizra of Village Ncmgh (Tx.l'W-4/l) concedes that the metalled road between Vtilage Nangli Sakrawati and Village Masoodahad is not renected in the aks shizra. hvidence ofthis witness (PW-4) instead of advancing the case of the appellants/elaittiants regarding the potentiality, reduces the potentiality of the acquired land in question. 13, There is no evidence to establish the comparability of the acquired lands under Award (Ex.PW-1/3) pertaining to Village Mangolpvr Khiird and under Award (lix.PW-lM) of Village Mohammadpur Mimirka with the acquired land in question. Rather, as per evidence of the eonecrncd official (PW-10), Award (Ex.PW-lO/l) pertained to West Patel Nagar for Metro Project. Thus, in the considered opinion ol this Court, Reference Court has rightly excluded the aforesaid Awards (Ex.PW-1/3 & lix.PW-1/4) to determine the fair market value ol the acquired land in question. Self serving deposition of claimants regarding potentiality of acquired lands in question, in the absence of corroborative evidence, is not enough to return positive finding on this crucial aspect, particularly in view of the fact that evidence regarding industries being there in the vicinity of acquired lands is lacking.

¶14So far as the Delhi Jal Board instance (l':x.PW-4/l) is concerned. I find that even its comparability with acquired land in question is not established as the witness (PW-5) who has deposed in respect of this transaction has conceded that he is not able to tell the distance from the said land to the land in question. Therefore, Reference Court has rightly not relied upon the Delhi Jal Board instance (p:x.PW-4/l).

¶15It has come in evidence of the appellants/claimants that there is no Government hospital or college in Village Masoodahad and the evidence I.XXpp. No. 421/2010 & Connected Appeals of Village Masoodahad fcv regarding ihe acquired land in question being surrounded by developed colonies is lacking. In the lace ol such dellcient 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 piecedents 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 beiim used for agricultural purpose at the time of its acquisition.

¶16Upon scrutiny of the evidence on record, it becomes quite apparent that despite Village Masondahad being declared as urban, the acquiied land in question were being used for agricultural purpose by the appellants/claimants and so, adoption of indicative price of agricultural lands by C3overnment 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 oi Notification under Section 4 of the Land Acquisition Act, 1894. Such a view is being taken as the acquired land in question was admittedly undeveloped and therefore, adoption of DDA auction rales or L&DO rates is not permissible in view of the dictum of the Ape.x Court in La! Chand (supra), which has been quoted with approval by the Ape.x Court in its latest decision in Thakur Kiddeep Sin^h (supra).

¶17Regarding incrca.sc ol' 10% per annum over and above the minimum indicative price fixed by Government of NCT of Delhi, the same cannot be assailed by the respondent as the Reference Court has done so while relying upon decision of the Apex Court In Union of India vs. Havpau (2009) 14 SCC 375. This Court finds that the F^clcrcncc C ourl was juslificd in granting the aibresaid increase of 10% pei annum while relying upon the decision in Harpaf (supra).

¶18In the light ol the fore-going narration, 1 find no inllrmity in the impugned Judgment in which fair compensation has been assessed in respect of the acquired land in question. Reference Court has rightly not classified the acquired land in question into 'A' category and 'B' category, as Land Acquisition Collector in the Award in question has unequivocally stated that no classification of the acquired land is required to be done as the acquired land is leveled.

¶19Consequentially, the appeals of the appellants/claimants as well as appeals of Union of India are dismissed, while leaving the parties to bear their own costs. Registry is directed to remit the compensation amount, il any, deposited by either side with the Registrar General of this Court, to the eoneerned Reference Court. March 14, 2012 pkb UNIL CAIJR) JIIIK.E -A.App, No. 421/2010 & Connected Appeals of )odabad Page 9

IN THE HIGH COURT OF DELHI AT NEW DELHIh Reserved on : February 08, 2012 Pronounced on : March 14, 2012 + LA.AFP. 462/2010 MUKESIl KUMAR Through: Appellant Mr.B.D.Sharma, Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates versus UOI & ANR Respondent Through: 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 "/o (Relating to Notification No. F.7/60/2001/L&B/LA/MR1 S(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