Vipin Kumar v. UOI & 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 DELHI AT NEW DELHI Reserved on ; February 08, 2012 Pronounced on : March 14, 2012 LA.APP.421/2010(VILLAGEMASOODABAD) SlJRl^SIlPRASAI)alias IlARf KISIIAN Appellant Ihrough; Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates versus UNION OF INDIA & ANR. Through: Respondents Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Ms.K.Kiran Pathak,Mr.SuryaNath Pandcy, Mr.YceshuJain and Ms.NavlinSwain, Advocates for LAC/UO! rA.App. No. LA.App. No. F.A.App. No. FA.App. No. i.A.App. No. I.A.App. No. LA.App. No. LA.App.-No. f.A.App. No. J.A.App.No. ] 421/2010 443/2010 455/2010 458/2010 462/2010 465/2010 469/2010 478/2010 584/2010 012/2010 AND . No. 441/2010 . No. 444/2010 No. 456/2010 No. 459/2010 No. 463/2010 No. 467/2010 No. 470/2010 No. 580/2010 LA.App LA.App LA.App LA.App LA.App LA'.App, LA.App. I^App No. 585/2010, LA.App.No. 1013/2010 AND I.A.App r.A.App i-A.App i.A.App LA.App LA.App LA.App :.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 appeals FILEDby IJNiONOF INDIA LA.App.No. 746/2010 LA.App.No. 59/2012 LA.App.No. 710/2011 I-'A.App.No. 748/2010 i.A.App No 749/9010 LA.App,No. 751/20,0 LA.App.No. 753/2010 LA.App. No: 754/20,0 No, 42,/20K) Page 1 k" 9. LA..App.No. 755/2010 LA.App. No. 756/2010 LA.App. No. 858/2010 LA.App. No. 859/2010 LA.App. No. 860/2010 LA.App. No; 861/2010 LA.App.No. 862/2010" LA.App.No. 863/2010 I.A.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 r.A.App. No. 21/2012 T.A.App. No. 56/2012 (Relating to Notification No. F.7/60/2001/L&B/LA/MRTS(S/W)/7674 of 05.08.2003issued under Section4 of the Land AcquisitionAct, 1894 & Award No. 5/2005-06of VillageMasoodabad,Delhi) COIMM: HON'BLE MR. JUSTICE SUNIL GAUR ORDER %

14.03.2012

¶1l"or 'NajafgarhDepot, MKTS Project',610 bighas and 13 bisvvas of land of Village Masoodabad was acquired vide NotiHcation of 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 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 period oftwo years. •I.e., from the date of fixing,ofthe minimum agriculturalprice upto the date ol Notiiication, i.e., compensation amount stood enhanced to Rs.l8,84,000per acrefor the acquiredland in question.

¶3In the instantappeals,furtherenhancementof Rs.50 lacs per acre is sought by 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 l.A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad <7 common, therefore, by this common order, these appeals arc being disposed of.

¶4On behalfof the appellants/claimants,it is urged that the learned ReferenceCourt has wronglytreated acquired lands as agriculturalland and did not appreciatethe potentiality,of the acquired land as building site and assessmentofthe compensationin respectofthe 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 acquiredland in question.

¶5During the course of hearing, it was pointed out by Icai'ned counsel for the appellants/claimantsthat Village Masoodabad was uibanizedin the year 1963 and zonal developmentplan was preparedby Delhi DevelopmentAuthorityin the year 1974 and the acquisitionofthe land mquestionwas for the proposedresidentialpurpose.Much reliance was placed upon Award (lix.PW-1/3)pertainingto Village Mangolpur Khuid 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 acquired land abuts the main.Delhi-Najafgarhmetalled road and in the adjoiningVillageNangli Sakrawati,there are industries and NajafgarhhidustrialArea is in the vicinity.

¶6Accordingto the learnedcounsel for the appellants/claimants,the best pieceofevidence,i.e. allotmentof land 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 Tindey &Ors. Vs. UnionofIndia&Anr, 2000(54)DRJ(DB)384; RN.Singhvs. Unionof lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 3 India, 1997 I AD (Del) 83; Hari Chand vs. Union ofIndia, 91 (2001) Di;r 602; DelhiDevelopmentAuthorityvs. LandAcquisitionCollector &Ors., 1j0(2006)D1 1(DB);AtmaSingh (died) throughLRs v.9. State ofHaryana & Anr., AIR 2008 SC 709; Mahahir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors., (1987) 1 SCC 587; Thakur Kuldeep Singh (D) Thr. L.R. &Ors vs. Union ofIndia &Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs &Ors. ra. Union ofIndia & Anr., 2004 VIII AD (SC) 37; Om Prakash va-. StateofHaryana&Ors, 201 I IV AD (SC) 382; Sagunthala(dead) through LRs vs. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thu'thkarvs. StateofMaharashtra,AIR 2009 SC 2238, to assert that the compensationclaimedin theseappealsis Just and reasonable.

¶7On behalfof the respondents,it was asserted by learned Senior Counsellor the respondentsthat adoptionofthe auctionratesofDDA or I.&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 in questioncontinuedto be used as agriculturalland and therefore, instances 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^ instances to be comparable for determiningthe market value of the land in question. Reliancewas placed upon decisionof the Apex Court in Satpal&Ors. Vs. Union ofIndia,(1997) 11 SCC 423 to assertthat if in ashort period there is asharp increasein price,,than the usual prevalenttrend in the market,such an instancecannot be taken as I^A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 4 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 learnedSeniorcounselfor the respondents that no developmentactivitytook 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 instantmatters,there is 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 restoringofthe Award ofthe Land Acquisition \ Collectoris soughtby the respondents.

¶10factorsand test to determinethe true marketvalueofthe acquired land have been restated by the Apex Court in its recent decision in Radha Mudaiiyar vs. Special Tehsildar (Land Acc/uisition) Tamil Nadu HousingBoard,(2010) 13 SCC 384, in these words:-"Comparable sales 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 salemust be agenuinetransaction:(2) thesaledeed must have been executedat the time proximateto the date of issuanceofnotificationunder Section.4 of the Act; (3) lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 5 € the land covered by the sale must be in the vicinityof 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 instancesshouldpre.ferablybe closestto the date of the notificationas then alone it would satisfy the touchstone of theprinciples contemplated,under Section_23 of the Act, as held in Kanwar Singh v. Union of India,

(1998)8 see 136." '

¶11Maving 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 successful in 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, possibilityoi their Iintherextensionand 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 I 11nd 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) of this villagedoes not throw 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 I.A.•App. No. 421/2010&ConnectedAppealsoFVillageMasoodabad Page 6 f •M instead of enhancingthe potentiality,rather diminishesit. The witness who was got examined to prove the aks shizra of Village Nangh 'Sakrawati(Ex.PW-4/1)concedesthatthe metalledroad betweenVillage Nangli Sakrawati and Village Masoodabadis not reflected in the aks shizra.Evidenceofthis witness(PW-4)insteadofadvancingthe case of the appellants/claimants regarding the potentiality, ieduces the potentialityofthe acquiredland in question.

¶13There is no evidenceto establishthe comparabilityofthe acqun-ed lands underAward (Ex.PW-1/3)pertainingto MangolpurKhurd 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 Patcl 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 claimantsregardingpotentialityof acquired lands in question,in the absenceof corroborativeevidence,is not enough to return positivefinding on this crucial aspect, particularly in view of the fact that evidenceregardingindustriesbeing there in the vicinityofacquiredlands is lacking.

¶14So far as the DelhiJal Boardinstance(Ex.PW-4/l)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,ReferenceCourt has lightly not reliedupon the DelhiJalBoardinstance(Ex.PW-4/1). ]5. It has come in evidenceofthe appellants/claimantsthat theie is no Governmenthospitalor collegein VillageMasoodabadand the evidence IAApp. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page ^ -••6 regardingthe acquiredland in questionbeing surroundedby developed colonies is lacking. In the face of such deficientevidence,there is no scope for enhancementofcompensationin 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 indicativeprice ofthe 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 appaientthat despiteVillageMasoodabadbeing 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 4 of the Land AcquisitionAct, 1894. Such aview is beingtaken as the acquiredland in question was admittedlyundevelopedand therefore,adoption of DDA auctionrates 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 ThakurlUildeep 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 tiiat die ^A.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,I find no inllrmityin the impugnedJudgment in which fair compensationhas been assessed in lespcctofthe acquiredland in question.ReferenceCourt has rightlynot classified the acquired land in question into 'A' category and 'B' category, as Land AcquisitionCollector in the Award in question has unequivocally stated that no classiilcation of the acquired land is icquiredto be done as the acquiredland is leveled.

¶19Consequentially,the appealsofthe appellants/claimantsas well as appealsofUnionofIndiaare dismissed,whileleavingthe partiesto bear theii own costs. Registiyis directedto remitthe compensationamount, ifany, depositedby eitherside with the RegistrarGeneralofthis Court, to the concerned ReferenceCourt. ^"TS'UNILCAUR) . JUDGE March 14, 2012 pkb -A.App. No. 421/2010&ConncctcdAppealsofVillageMasoodabad Page 9

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 + LA.APP. 585/2010 % VIPIN KUMAR Appellant Through: Mr.B.D.Sharma, Mr.S.K.Rout, Ms. Sukhda Dhamij a 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 (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