Harish v. UOI & Anr

ORDER

14.03.2012 For orderssee LA.APP.421/2010,titledasSuresh 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 COURT OF DELHI AT NEW DELHI Reserved pn : February 08, 2012 Pronounced on : March 14, 2012 LA.APP.421/2010(VILLAGEMASOODABAD) SIJT^^SHPRASADaliasHARIKISIiAN ..... Appellant Through; Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Sukhda Dhainija and Mr.B.K.Routray, Advocates versus LINION 01^" INDIA & ANR. Through; Respondents Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathal<,Ms.K.Kiran Pathak,Mr.SuryaNath Pandey, Mr.YeeshuJain andMs.NavlinSwain, Advocates for LAC/UOI LA.App LA.App LA.App LA.App LA.App LA.App LA.App LA.App r.A.App LA.App. • No. 421/2010 • No. 443/2010 . No. 455/2010 . No. 458/2010 No. 462/2010 No. 465/20,10 No. 469/2010 No. 478/2010 No. 584/2010 No. 1012/2010 ANID • No. 441/20.10 .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 LA./Vpp LA.App LA.App LA.App LA.App LA.App LA.App LA.App, LA.App. LA.App. LA.App. LA.App. LA.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 T^o. 471/2^ No. 583/2010 No.lOl 1/2010 No. 12/2012 AND APPEALSFILEDBYUNIONOF 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 I,A.App.No. 749/2010 LA.App.No. 751/2010 LA.App.No. 753/2010 t,A.App.No. 754/2010 I.A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 1 •) % LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. 755/2010 859/2010 862/2010 866/2010 869/2010 21/2012 LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. 756/2010 860/2010 863/2010 867/2010 267/2011 56/2012 LA.App. No. LA.App. No. LA.App.. No. LA.App. No. LA.App. No. 858/2010 861/2010 865/2010 868/2010 752/2010 (Relating to NotificationNo. F.7/60/2001/L&B/LA/MRTS(S/W)/7674 of 05.08.2003issuedunder Section4 of the Land AcquisitionAct, 1894 & AwardNo. 5/2005-06of VillageMasoodabad,Delhi) CORAM: HON'BLE MR. JUSTICE SUNIL GAUR ORDER

14.03.2012

¶1For 'NajafgarhDepot, MKTSProject',610 bighas and 13 biswas of land of Village Masoodabadwas acquired vide Notificationof 5"' August, 2003 under Section4 ofthe Land AcquisitionAct, 1894 which was followedby 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 grantedby the ReferenceCourt for the periodof two years, I.e., from the date of fixing of the minimum agriculturalprice upto the date of Notification, i.e., compensation amount stood enhanced to Rs.18,84,000per acre for the acquiredlandin question.

¶3In the instantappeals,furtherenhancementofRs.50 lacs per acre is soughtby the claimants,whereasthe respondentin theirappealshave sought settingaside of the impugnedorder of the ReferenceCourt and restorationof the Award. Since the grounds urged in these appeals is I.A.APP.No. 421/201 O Rage 2 •# \l 1/ common, therefore, by this common order, these appeals are being disposed of.

¶4On behalfof the appellants/claimants,it is urged that the leained ReferenceCourt has wronglytreatedacquiredlands 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 marketvalueofthe acquiredlandinquestion.

¶5Durmg the course of hearing, it was pointed out by learned counsel for the appellants/claimantsthat Village Masoodabad was urbanizedin the year 1963 and zonaldevelopmentplan was preparedby DelhiDevelopmentAuthorityin the year 1974 and the acquisitionofthe land mquestionwas for the proposedresidentialpurpose.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 compensationwas assessed while taking into,considerationthe L&DO rates. It is pointed out that some parcel of acquiredland abuts the main Delhi-Najafgarhmetalled, road and mthe adjoiningVillageNangli Sakrawati,there are industries and NajafgarhIndustrialAreais in the vicinity.

¶6Accordingto the learnedcounselfor the appellants/claimants,the bestpieceofevidence,i.e. allotmentofland in VillageMasoodabadand Najafgarhby DDA to Delhi Jal Board at the rate ofRs.20 lacs per acre mthe year 1993 has been illegallydiscarded by the ReferenceCourt. Reliance is placed upon the decisionsreported in Tindey &Ors. Vs. UnionofIndia&Anr, 2000(54)DRJ(DB) 384;RN.Singh vs. Unionof AApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad I'- /> India, 1997 I AD (Del) 83; Hari Chand vs. Union ofIndia, 91 (2001) DLT 602, DelhiDevelopmentAuthorityvs. LandAcquisitionCollector &Ors., 130(2006)D1 1(DB);AtmaSingh (died) throughLRs V5. State of Haryana & Anr., AIR 2008 SC 709; Mahabir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors., (1987) 1 SCC 587; Tltakur KuldeepSingh (D) Thr. L.R. & Ors vs. Union ofIndia &Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs &Ors. V5. Union ofIndia Anr., 2004 VIII AD (SC) 37; Om Prakashvs. 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. StateofMaharashtra,AIR 2009 SC 2238, to assertthat the compensationclaimedin theseappealsis justand 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 Court in decisionin Lai Chand V5. UnionofIndiaandAnr., (2009) 15 SCC 769. It was also urged by learnedcounsel for the respondentsthat despite Village Masoodabad bemg declared to be urbanized, the acquu-ed land in questioncontinuedto be used as agriculturalland and therefore, mstances of 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 lands in the vicinityas the evidenceis lacking regardingsaid instancesto be comparablefor determiningthe market value ofthe land in question.Reliancewas placedupon decisionof the Apex Courtin Satpal&Ors. Vs. Union ofIndia,(1997) 11 SCC 423 to assertthat if in ashort periodthere is asharp increasein price,than the usual prevalenttrend in the market,such an instancecannotbe taken as lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 4 •x y /3 realistic 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 contendedby learnedSeniorcounsel for the respondents that no developmentactivitytook place in the vicinitynor 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 prefen-edby the respondents,enhancementin 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,there is no evidenceshowingincreasein the marketprice ofthe 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 soughtbythe respondents.

¶10Factorsand testto determinethe true marketvalueofthe 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:- "Comparablesales instances are the safest method for determiningthe marketvalue of the acquiredland and as' laid down in Shaji Kuriakose v. Indian Oil Corpn. Ltd.,

(2001) 7SCC 650, itshouldsatisfy thefactors, inter alia,

(1) the sale mustbe a genuinetransaction;(2) the saledeed must have been executedat the time proximateto the date ofissuanceofnotificationunder Section 4 ofthe Act; (3) LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 5 the land coveredby the sale iniist be in the vicinityof the acquired land; (4) the land, covered by the sale must he similarto the acquiredland; and (5) size of the plot of the land covered by the sale be comparable to the acquired land. The sales instancesshouldpreferablybe closestto the date of the notificationas then alone it would satisfy the touchstoneof theprinciples contemplatedunder Section 23 of the Act, as held in Kanwar Singh v. Union of India

(1998)8 see 136."

¶11Havingheard learnedcounsel for the partiesin these mattersand upon perusal ol the impugned judgment, evidence on record and the decisions cited, I proceed on the premise that the burden of proving madequacy 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 whetherthe 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, possibilityoftheirfiirtherextensionand 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 1find that there is hardly 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 Najai^arhdrain, which lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 6 •V*. • insteadof enhancingthe potentiality,rather diminishesit. The witness who was got examined to prove the aks shizra of Village Nangli Sakrawati(Ex.PW-4/1)concedesthatthe metalledroad betweenVillage Nangli Sakrawatiand Village Masoodabadis not reflectedmthe aks shizra.Evidenceofthiswitness(PW-4)insteadofadvancingthe caseof 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 underAward (Ex.PW-1/4)ofVillageMohaminadpurMunirkawith the acquiredland in question.Rather, as per evidenceof the concerned official (PW-10), Award (Ex.PW^lO/1)pertainedto West Patel Nagar for Metro Project. Thus, in the considered opinion of this Court, ReferenceCourthas rightlyexcludedthe aforesaidAwards (bx.PW-1/3 &Ex.PW-1/4)to determinethe fair marketvalueofthe acquiredland in question.Self sewing depositionof claimantsregardingpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is not enoughto returnpositivefindingon this crucialaspect,particularly in view of the fact that evidenceregardingindustriesbeingthere mthe vicinityof acquiredlandsislacking.

¶14So far as the DelhiJal Boardinstance(Ex.PW-4/1)is concerned, I find 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 relieduponthe DelhiJalBoardinstance(Ex.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthatthere is no Governmenthospitalor collegein VillageMasoodabadand the evidence LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 7 legardingthe acquiiedland in questionbeing 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 acquired land in question, the appellants/claimantshave to remain content with the assessment of compensation on the basis of the indicativepriceofthe agriculturalland by GovernmentofNCT ofDelhi as undisputedly,the acquired land in question were being used for agriculturalpurposeat the timeofits acquisition.

¶16Upon scrutiny of the evidence on record, it becomes quite apparentthat 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'4of the Land AcquisitionAct, 1894. Such,aview is beingtaken as the acquiredland in question was admittedlyundevelopedand therefore,adoptionofDDA auction,rates orL&DO rates is not permissiblein view ofthe dictumof 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 Vnwn of India vs. Harpat, (2009) 14 SCC 375. Tliis Court finds that the U.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 8 ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10% per annum whilerelyingupon the decisionin Harpat(supra).

¶18In the light of the fore-goingnarration,Ifind no infirmityin the impugnedjudgmentin which fair compensationhas been assessed in respectofthe acquiredland in question.ReferenceCourthas 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 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 concerned Reference Court. March 14, 2012 pkb A.App. No. 421/2010&ConnectedAppealsofVillageMasoodabad JUNILGAUR) JUDGE Page 9

•1 ; IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on ; February 08, 2012 Pronounced on ; March 14, 2012 + LA.APP. 468/2010 % HARISH Appellant Through: Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Suldida Dhamija and Mr.B.K.Routray, Advocates versus UOI & ANR Respondent Through: Mr.SanjayPoddar,SeniorAdvocate withMr.SanjayPathak,Ms.K.Kiran Pathak, Mr.Surya Nath Pandey, Mr.Yeeshu Jain and Ms.Navlin Swain, Advocates for LAC/UOI (Relating to NotificationNo. F.7/60/2001/L&B/LA/MRTS(S/W)/7674 of05.08.2003issuedunder Section4 ofthe Land AcquisitionAct, 1894 & AwardNo. 5/2005-06of VillageMasoodabad,Delhi) CORAM: HON'BLE MR. JUSTICE SUNIL GAUR