Ashwani Kumar @ Anr v. Union of India & Anr

ORDER %

14.03.2012 For orders see LA.APP.421/2010, titled as Suresh Prasad alias Hari Kishan V5. Union ofIndia &Am. INIL 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. !N THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 LA.APP.421/2010(VILLAGEMASOODABAD) SUR1".SHPF^ASADalias MARI KISIIAN Appellant Through: Mr.B.D.Sharma,Mr.S.K.Roul, Ms.Sukhda Dhamija and Mr.B.K.Rou1!'ay, AdVocates versus UNION 01' INDIA &ANR. Respondents Through: Mr.SanjayPoddar,Senior Advocate with Mr.Sanjay Pathak, Ms.K.Kiran Pathak,Mr.SuryaNath Pandey, Mr.YeeshuJain and Ms.Navlin Swain, Advocates for LAC/UO] AND kA.App. No. 421/2010 LA.App.No. 441/20]0 1.A.App.No. 442/20!0 I-.A.App.No. 443/2010 LA.App.No. 444/2010 l.A.App,No. 446/2010 LA.App.No. 455/2010' l.A.App.No. 456/2010 i AAnp Mo zis7/-'p] LA.App.No. 458/2010 LA.App.No. 459/2010 (CvApiT^46a^5()]0 LA.App.No. 462/2010 LA.App,No. 463/2010 bv:7V^^jrN^r^M72(7T0 LA.App.No. 46.5/2010 LA../\pp.No. 467/20!0 [..A.App.No. 468/2010 l.A.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 l.A.App.No. 584/2010 LA.App.No. 585/2010 LA.App.No.1011/2010 LA.App.No.1012/2010 LA.App.No.1013/2010 LA.App.No. 12/2012 AND APPEAI.SFILPiDBY UNION OFINDIA LA.App.No. 746/2010 LA.App.No. 59/2012 l.A.App.No. 710/2011 LA.App. No. 747/2010 LA.App.No. 748/2010 LA.App, No. 749/7010 LA.App.No. 751/2010 l.A.App-.No. 753/2010 LA.App. No. 754,/20!0 l.A.App,No. 421/20]0&ConnectedAppealsofVillageMa.soodabaci Page § / 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. 267/2011 LA.App.No. 752/2010 LA.App. No. 21/2012 LA.App. No. 56/2012 (Relating to Notification No. 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

¶1Tor 'NajafgarhDepot, MKTSProject', 610 bighas and 13 biswas of land of Village Masoodabad was acquired vide Notificationof 5"' ' August, 2003 under Section 4 of the l.and AcquisitionAct, 1894 which was followed by Notificationof 8"' August, 2003 under Section6 of the Land AcquisitionAct, 1894 resultingin passingof Award No.5/2005-06 grantingcompensationat the rate of Rs.15.70 lacs per acre on the basis of indicative pricc fixed by the Government of NC1' 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 offixing ofthe minimum agriculturalprice upto the date of Notification, i.e., compensation amount stood enhanced to Rs.18,84,000per acre for the acquiredland in question.

¶3In the instantappeals, iiirtherenhancementof Rs.50 lacs per acre IS soughtby the claimants,whereasthe respondentin their appealshave sought setting aside of the impugned order of the ReferenceCourt and restorationof the Award. Since the grounds urged in these appeals is I.A.App,No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 2 common, therefore, by this common order, these appeaJs 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 potentialityof 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 marketvaliieof the acquiredland in question.

¶5During the course of hearing, it was pointed out by learned counsel for the appellants/claimantsthat Village Masoodabad was urbanizedmthe year 1963 and zonal developmentplan was preparedby Delhi DevelopmentAuthorityin the year 1974 and the acquisitionofthe land in questionwas for the proposedresidentialpurpose.Much reliancc was placed upon Award (lix.PW-1/3)pertainingto Village Mangolpur Khurd and Award (Cx.PW-lM)of Village N4ohammadpurMunirka 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 NajafgarhIndustrialArea is in the vicinity.

¶6Accordingto the learnedcounselfor the appellants/claimants,the best pieceofevidence,i.e. allotmentof land 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.KSinghvs. Unionof I^A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 3' •X ^9' . 0-/.; .ills Mi -.t'c-'s ;• -' India, 1997 I AD (Del) 83; Han Chand vs. Union ofIndia, 91 (2001) DL r 602; DelhiDevelopmentAuthorityvs. LandAcquisitionCollector &Ors., 1j0(2006)D1 1(DB);AtmaSingh (died) throughLRs r?. State of Haryana & Anr., AIR 2008 SC 709; Mahabir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors., (1987) I 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 Prakashv^. 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 assert that the compensationclaimedin these appealsis justand reasonable.

¶7On behalfof the respondents,ii was asserted by learned Senior Counselfor the respondentsthat adoptionofthe auctionrates ofDDA or L&DO rates rn respectof agriculturalland stands negated by the Apex• Court in decisionin 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 acquired land in questioncontinuedto be used as agriculturalland and therefore, instances of Village Mangolpur Khurd and Village MohammadpurMunirkaarc 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 comparablelor determiningthe market value ofthe land in question.Reliancewas placed upon decisionof the Apex CourtmSatpal&Ors. Vs. UnionofIndia,{mi)11SCC 423 to assertthat if in ashort period there is asharp increasein price,, than the usual prevalenttrend in the market,such an instance.cannotbe taken as 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 learnedSeniorcounsel 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 instantmatters,thereis 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 of the Land Acquisition Collector is sought by the respondents.

¶10factorsand test to 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 deternuningthe market value of the acquiredland and as laid down in Shaji Kuriakose v. Indian Oil Corpn. Ltd., (200]) 7SCC 650, it shouldsatisfy thefactors, inter alia, (]) the sale must be a genuinetransaction;(2) the saledeed must have been executedat the time proximateto the date ofissuanceofnotificationimder Section 4 ofthe Act; (3) lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 5 ' /• ' I' the land covered by the sale 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 he comparable to the acquired land. The sales instancesshouldpreferably be closest to the date of the notificationas 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 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 importantiactoi, 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 furtherextensionand the prospectsofdevelopmentin the aiea have to be taken into consideration.It has been so reiteratedbv the Apex Court in Atnia Singh (supra). It is in this context, I have scrutmizedthe evidence on record and I Tmd that there is hardly any evidence legarding the topographyot the area adjoining the acquired land in questionand the evidenceled regardingthe aks shizra(Ex.PW-2/1) ol this village does not throw any light on this vital aspect, except that the evidence led to prove this documentadversely reflectsthat on the easternside of VillageMasoodabad,there is Najafgarhdrain, which IAApp. No. 421/2010&ConnectedAppealsofVillageMa.soodabad Page 6 M f s ^ rr u instead of enhancingtine potentiality,ratlier diminisliesit. The witness who was got examined to prove the ofo Mzra of Village Nangli Salcrawali(l-:x.PW-4/l)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 acquiredlandin question. Thereis no evidenceto establishthe comparabilityofthe acquired lands underAward(Ex.PW-1/3)pertainingto VillageMangolpurKhiird and under Award (Ex.PW-1/4)ofVillageMohaminadpurMimirka with 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 acquiredlands in question,in the absenceof corroborativeevidence,is not enoughto return positivefinding on this crucial aspect,particularly in view of the fact that evidenceregardingindustriesbeing there mthe vicinityoi acquiredlands is lacking. 14; So 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.Therefore,ReferenceCourthas rightly not reliedupon the DelhiJalBoardinstance(Ex.PW-4/1).

¶15Ithas come in evidenceofthe appellants/claimantsthat there is no Governmenthospitalor collegein VillageMasoodabad.and the evidence I.A.App.No. 4-21/2D10&ConnectedAppealsofVillageMasoodabad Page ' regardingthe acquired land in question being surroundedby developed colonies is lacking. In the face ot 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 piecedents cited. Having failed to establish the potentiality of the acquiied land in question, the appellants/claimantshave to remain content with the assessment of compensation on the basis of the indicativepriceofthe agriculturalland by GovernmentofNCTof Delhi 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 VillageMasoodahadhQmg declaredas urban, the acquiredland in questionwere being used for agriculturalpurposeby the appellants/claimantsand so, adoptionof indicativeprice of agricultural lands by Government ol 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 being taken as the acquiredland in question was admittedlyundevelopedand therefore, adoption ofDDA auctionrates or L&DO rates is not permissiblein view of the dictum of the Apex Court in Lai Chand (supra), which has been quoted with approval by the Apex Court in its latest decision in ThakiirKuldcep 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 Lndia vs. Harpat, (2009) 14 SCC 375. This Court finds that the LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 8 •k:.' , I' •! ' .M ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10% per annum whilerelyingupon the decisionin Harpat(supra).

¶18In the light of the fore-goingnarration,I fmd no infirmityin the impugnedjudgment in which fair compensationhas been assessed in respectof the 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 appealsofUnionofhidiaare dismissed,while leavingthe partiesto bear their own costs. Registryis directedto remit the compensationamount, ifany, depositedby eitherside with the RegistrarGeneralofthis Court, to the concernedReferenceCourt. March 14, 2012 pkb 1-A.App.No. 421/2010&^^;;n;;^d UNJL GAUR) JUDGE Page 9

IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.APP. 460/2010 Reserved on : February 08, 2012 Pronounced on : March 14, 2012 ASHWANIKUMAR @ ANR Appellant Through: Mr.B.D.Sharma, Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates versus UNION OF INDIA & 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