Lokesh & Anr 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 -(SunSgau^ 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 S Reserved on : February 08, 2012 Pronounced on : March 14, 2012 ' LA.APP.421/2010(VILLAGEMASOODABAD) PRASADalias HAW KISHAN Appellant Through; Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Sukhda Dhainija and Mr.B.K.Routray, Advocates versus UNION 01-' INDIA&ANR. Respondents riirough: Mr.SanjayPocidar,SeniorAdvocate with Mr.Sanjay Pathalc,Ms.K.Kiran . Pathak,Mr.SuryaNath Pandey, Mr.YeeshuJain and Ms.NavlinSwain, Advocates for LAC/UOI AND r.A.App.No. 421/2010 LA.App.No. 441/2010 LA.App. No. 442/2010 LA.App.No. 443/2010 LA.App.-No.444/2010 l.A.App.No 446/2010 LA.App.No. 455/2010 LA.App.No. 456/2010 l.A.App,No. 457/2010 LA.App.No. 458/2010 LA.App.No. 459/2010 LA.App. No. 460/2010 LA.App.No. 462/2010 j^^A^AACLj^).463/2010, L/^p. No. 464/2010 465/20.1OQ^.App.No. 467/201oTrXAnn.No. 468/2010 LA.App.No. 469/2010 LA.App. No. 470/2010 LA.App.No. 471/2010 LA.App.No. 478/2010 LA.App.No. 580/2010 LA.App.No. 583/2010 585/2010 LA.App.No.lOl1/2010 LA.App.No.1012/2010 LA.App.No.1013/2010 LA.App.No. 12/2012 AND APPKALSFILEDBY UNION OF INDIA l-A.App.No. 59/2012 LA.App.No. 710/201I [-A.App.No. 748/2010 l.A.App No 749/9010 KA-App.No. 751/2010 l.A.App.No. 753/2010 l.A.App.Na 754/2'o,0 Page 1 / 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 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. 267/20.11 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 of 05.08.2003issuedunder Section4 of the Land AcquisitionAct, 1894 & Award No. 5/2005-06ofVillageMasoodabad,Delhi) CORAM: HON'BLE MR. JUSTICE SUNIL GAUR ORDER %

14.03.2012

¶1For 'NajafgarhDepot, MKTSProject',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 Notificationof 8^' August, 2003 under Section 6 ofthe Land AcquisitionAct, 1894 resultingin passingofAward No.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 periodoftwo years, i.e., from the date of fixing of the minimum agriculturalprice upto the date oi Notification, i.e., compensation amount stood enhanced to Rs.18,84,000per acre for the acquiredland in question.

¶3In the instantappeals,turtherenhancementof Rs.50 lacs per acre IS sought by the claimants,whereasthe respondentin theirappeals have sought settingaside of the impugned order of the ReferenceCourt and restorationof the Award. Since the grounds urged in these appeals is lAApp.No. 421/2010&ConnectedAppealsofViii^geMasoodabad• Page 2 common, therefore, by this common order, these appeals are 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 potentialityof the acquii-ed land 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 acquiredland in question.

¶5During the course of hearing, it was pointed out by learned counsel for the appellants/claimantsthat Village Masoodabad was urbanizedin the year 1963 and zonal developmentplan was preparedby Delhi-DevelopmentAuthorityin the year 1974 and the acquisitionofthe land in questionwas for the proposedresidentialpurpose.Much reliance was placed upon Award (Ex.PW-1/3)pertainingto Village Mangolpur Khuid and Award (bx.PW-1/4)of Village MohammadpurMunirkaof the T.and 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-Najafgarhmetalled road and in the adjoiningVillageNangli Sakrawati,there are industries and NajafgarhIndustrialAreais in the vicinity.

¶6Accordmgto the learnedcounsel for the appellants/claimants,the bestpieceofevidence,i.e. allotmentofland in VillageMasoodabadand Najalgarhby DDA to Delhi .Jal Board at the rate of Rs.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; P.N.Singhvs:Unionof lAApp.No. 421/2010&ConnectedAppealsofVillage ^ India, 1997 I AD (Del) 83; Hari Chand vs. Union ofIndia, 91 (2001) D[;r 602; DelhiDevelopmentAuthorityvs. LandAcquisitionCollector &Ors., 1j0(2006)D1 \(DB),AtmaSingh (died) through LRs kv. 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. vs. Union ofIndia & Anr., 2004 VIII AD (SC) 37; Om Prakash StateofHaryana&Ors, 2011 TV AD (SC) 382; Sagunthala(dead) through LRs vs. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thirthkarvs. State ofMaharashtra,AIR 2009 SC 2238, to assert that 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 Courtmdecision in Lai Chandvs. Union ofIndiaandAnr., (2009) 15 SCC 769. It was also urged by learned counsel for the respondentsthat despite Village Masoodabad being declared to be urbanized, the acquiredland in question continuedto 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 representativepriceof the lands in the vicinityas the evidenceis lacking regarding said instances to be comparablefor determiningthe market value of the land in question.Reliancewas placed upon decisionof the Apex Court in Satpal&Ors. Vs. Union ofIndia, (1997) II 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 LA.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 learned Senior counsel for the respondents that no developmentactivity 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 instantmatters,there is no evidenceshowingincreasein the marketprice of the land in questiontill its acquisition.It is assertedthat doing av/ay of classificationof acquired lands in question by Reference Court is illogical and without any Justification. Thus, setting aside of the impugnedJudgmentand restoringofthe Award of the Land Acquisition Collectoris soughtbythe respondents.

¶10hactors and test to determinethe true marketvalueofthe acquired land have been restated by the Apex Court in its recent decision in Radha Mudaliyar ys. Special TehsUdar (Land Acquisition) Tamil Nadu Housing Board, (2010) 13 SCC 384, in these words:- "Comparablesales instances are the safest method for determiningthe market yahte of the acqinredland and as laid down in Shaji Kuriakose v. Indian Oil Corpn. Ltd.,

(2001) 7SCC 650, it shoiddsatisfy thefactors, inter alia,

(I) the sale must be a genuinetransaction:(2) the sale deed must have been executed,at the time proximateto the date of issuanceof notificationunder Section 4 ofthe Act; (3) .A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 5 f m , -:c) Ihe 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 acquiredland; 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 touchstone of the prmciples contemplated,under Section 23 of the Act, as held, in Kanwar Singh v. Union of India,

(1998)8 see 136. " \ 1. Having heard learned counsel for the parties in these mattersand 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 successfulin dischargingthis burden or not.

¶12No doubt, purpose for which the acquisition is made is an miportantfactor, 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 aiea 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 scrutini/cdthe evidence on record 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) 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 lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad ^ o instead of enhancingthe potentiality,rather diminishesit. The witness who was got examined to lorove the aks shizra of Village Nangh Sakrawati(l-x.PW-4/l)concedesthat the metalledroad betweenVillage Nangli Sakrawati and Village Masoodabadis 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 lands under Award(Ex.PW-1/3)pertainingto VillageMangolpurKhurd and under Award (Ex.PW-1/4)ofVillageMohammadpurMunirkawith the acquiredland in question.Rather, as per evidenceof the concerned official (PW-10), Award (Ex.PW-10/1)pertained to West Patcl Nagai for Metro Project. Thus, in the considered opinion ol this Court, ReferenceCourt has rightlyexcludedthe aforesaidAwards (Ex.PW-1/3 & Ex.PW-l/4)to determinethe fair marketvalueofthe acquiredland in question. Selfserving depositionof claimantsregardingpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is not enough to returnpositivefinding on this crucialaspect, paiticulaily in view of the fact that evidenceregardingindustriesbeing there in the vicinityof acquiredlands is lacking.

¶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 distance from the said land to the land in question.Iherefore,ReferenceCourt has lightly not reliedupon the DelhiJalBoardinstance(Ex.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthattheie is no Governmenthospitalor collegein VillageMasoodabadand the evidence LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page7 JV icgaidingthe acquired land in question being surroundedby developed colonies is lacking. In the face of such deficientevidence,there is no scope tor 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 time ofits acquisition.

¶16Upon scrutiny of the evidence on record, it becomes quite appaientthat despite Village hdasoodabadbeing 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 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 ofthe dictum of the Apex Court in Lai Chand (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 NCl^ of Delhi, the same cannot be assailedby 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 that the lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad /5 RcferenccCourt was Justifiedin grantingtine aforesaidincreaseof 10% per annum while relyingupon the decisionin Harpat(supra).

¶18In the light of the fore-goingnarration,I find no infirmityin the impugnedJudgment in which fair compensationhas been assessed in respectofthe acquiredland in question.ReferenceCourthas rightlynot classified the acquired land in question, into 'A' category and 'IB' 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. ]9. Consequentially,the appealsofthe appellants/claimantsas well as appealsofUnionofIndiaare dismissed,while leavingthe partiesto bear their own costs. Registryis directedto remit the compensationamount, li any, depositedby eitherside with the RegistrarGeneralofthis Court, to the concernedReferenceCourt. March 14, 2012 pkb U.Ap,xNo,421/20,0&ConnectedAppcisof , — UNIL GAUR) JUDGE

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 + LA.APP. 467/2010 % LOKESH & ANR Thtough: versus UNION OF INDIA & ANR Through: Appellant Mr.B.D.Sharma, Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates Respondent 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.7/60/200l/L&B/LA/MRTS(S/W)/7674 of 05.08.2003issuedunder Section4 of the Land AcquisitionAct, 1894 & Award No. 5/2005-06of VillageMasoodabad,Delhi) CORAM: HON'BLE MR. JUSTICE SUNIL GAUR