Narbada Devi v. UOI & Anr

ORDER

14.03.2012 For orders see LA.APP.421/2010, titled as Suresh Prasad alias Hari Kishan vs. Union of India & Am. fL 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. ■t:' S IN Till II1(;H ( ()l k l OF l)F LIII AT NFW DFLIII Reserved on ; February 08, 2012 Pronounced on : March 14, 2012 LA.AI'P.421/2010 (VILLAGE MASOODABAD) SUkF:SIl PRASAD alias IIARI KISIIAN Appellant rhrough: Mr.B.D.Sharma, Mr.S.K.Roui, Ms.Sukhda I^hamija and M r. IT K. R o u t ray, A d \' oc a t c s versus < 4-LWION OF INDIA & ANR. Through: Respondents Mr.Sanjay Poddar. Senior Advocate with Mr.Sanjay Pathak, Ms.K.Kiran Pathak. Mr.Sur\a Nath Pandev, Mr.Yeeshu Jain and Ms.Navlin Swain, Advocates for I .AC7UOI i.A.App. No F A.App. No I.A.App. No FA.App. No I.A.App. No i.A.App. No I.A.App. No FA.App. No I.A.App. No FA.App,No. . 421/2010 . 443/2010 . 455/2010 458/2010 . 462/2010 . 465/2010 .469/2010 ,478/2010 , 584,/2010 1012/2010 AND FA.App. No. 441/2010 FA.App. No. 444/2010 FA.App. No. 456/2010 FA.App. No. 459/2010 FA.App. No. 463/2010 FA.App. No. 467'2010 FA.App. No. 470/2010 FA.App. No. 580/2010 FA.App. No. 585,/2010 FA.App.No. 1013/2010 FA.App. No. 442./'2010 FA.App. No. 446/2010 FA.App. No. 457/2010 FA..App. No 460/2010 1 A.App. No. 464/2010 I .A.App. No. 468/2010 FA.App. No. 47F'201O FA.App. No. 383/2010 FA.App.No. 101 1/2010 FA.App. No. 12/2012 AND appf:afs fifi;d by union of india FA.App. No. 746/2010 FA.App. No. 59/2012 FA.App.No 710/201 i -VApp. No. 747/2010 FA.App. No. 748/2010* FA.App. No. 749/N)10 I.A.App. No. 751/2010 FA.App. No. 753/2010 FA.App. No. 754/2010 !.A Ap(). No. 42 1/7.010 Conneclrd AppcoLs ol Village .MH.sondabod Vi, I,A.App. No. 755/2010 LA.App. No. 756/2010 LA.App. No. 858/2010 I.A.App. No. 859/2010 LA.App. No. 860/2010 l.A.App. No. 861/2010 LA.App. No. 862/2010 lA.App. No. 86.3/2010 LA.App. No. 865/2010 LA.App. No. 866/2010 LA.App. No. 867/2010 I.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 I.A.App. No. 56/2012 (Relating to Notification 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: IION'BIJ: MR. JUSTICE SUNIL GAUR O I) E R

14.03.2012

¶1I-or 'Na/afgarh Depot. MRTS Project'^ 610 bighas and 13 bis was ol land ol Village Masoodabad was acquired vide Notification of 5"' August, 2003 under Section 4 of the Land Acquisition Act, 1894 which was followed 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 of Rs. 15.70 lacs per acre on the basis of indicative price fi.Kcd by the Government of NG f of Delhi for the agricultural lands in Delhi.

¶2In the reference sought by the claimants, interest /^L10% per annum was granted by the Reference Court 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 enliancement 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. M\/2{n 0 & Connected Appeals of Village Ma.soodalaad Pago i-' ittiiilifiiiiiiii common, therefore, by this common order, these appeals are being disposed of.

¶4On behalf of the appellants/claimants, it is urged that the learned Reference Court has wrongly treated aequired lands as agricultural land and did not appreciate the potentiality of the acquired land as building site and assessment of the eompensation in respect of the aequired 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 of hearing, it was pointed out by learned counsel 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 (Hx.PW-1/3) pertaining to Village Mangolpur Khuid and Award (i',x.PW-l/4) ol 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 paicel ol acquired land abuts the main Delhi-Naiafgarh 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 piece of evidence, i.e. allotment of land in Village Masoodabad and Najafgarh by DDA to Delhi .lal Board at the rate of Rs.20 lacs per acre in the year 1993^has been illegally discarded by the Reference Court. Reliance is placed upon the decisions reported in Tindey & Ors. Vs. Union of India Anr, 200()(54)DRJ (DB) 384; P.N.Sin^h vs. Union of 1 AApp. No. 421 /2010 & Comicrted Appeals of ViFagc Ma'soodabafl India, 1997 I AD (Del) 83; Hari Chand v.v. Union of India, 91 (2001) DLl 602; Delhi Development Authority v.v. Land Acquisition Collector & Ors., 130(2006) Di 1(DB); Atma Singh (died) through LRs r.v. State of Haryana Anr., AIR 2008 SC 709; Mahahir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors., (1987) 1 S( C 587; Thakur Kid deep Singh (D) Thr. L.R. & Ors vs. Union of India & Ors., AIR 2010 SC 1272; Om Prakash (D) hy LRs & Ors. vs. Union of India <& Anr., 2004 VllI AD (SC) 37; Om Prakash r.v. State of Haryana Ors, 201 1 IV AD (SC) 382; Sagunthala (dead) through LRs vs. 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 ( ourt in decision in La! Chand rv. Union of India and Anr., (2009) 15 see 769. It was also urged by learned counsel for the respondents that despite Village Masoodabad being declared to be urbani/ed. the acquired land in question continued to be used as agricultural land and therefore, in.stanccs ol Village Mangolpur Khurd and Village Mohammadpur Munirka arc of no avail and the in.stance of allotment of land by DDA m lavour of 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 of the land in question. Reliance was placed upon decision of the Apex Court in Satpal & Ors. Vs. Union of India, (1997) 1 1 SCC 423 lo assert that if m a short period there is a sharp increase in price, than the usual prevalent trend in the market, such an instance cannot be taken as i^A.App. No. 421/2010 & Connected Appeals of Village Maswdab^^d Page 4 aiiiu 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 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 of classilication oi 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 satisfy the factors, inter alia,

(I) the sale must he a genuine transaction: (2) 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) 1-A.App. No. 421/2010 & Connorteci Appeals of Village Masoodabad Page 5 the land covered by the sale must he in the vicinity of the accjuired land: (4) the land covered by the safe must be similar to the acquired land: and (5) size oi the plot of the kind covered by the sale be comparable to the acquired land. Ike sales instances should preferably be closest to the date of the notification as then alone it would satisfy the touchstone of the principles contemplated under Section 23 of the Act. as held in Kanwar Sinyh v. Union of India.

(199S)S see 136.- 1 1. Having heard learned eounsel lor die 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 appcllants/claimants have been successful in discharging this burden or not.

¶12No doubt, purpose for which the acquisition is made is an important tactor, 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 whieh it is put or is reasonably capable of being put and proximity to residential, commercial or industrial or institutional area, 'i'he existing amenities like water, electricity, possibility of their further extension and the prospects of development in the area have to be taken into consideration. It has been so reiterated by the Apex Court in Atma Sinifh (supra). It is in this context, I have scrutinized the evidence on record and I find that there is hardlv anv evidence legarding the topography ol the area adjoining the acquired land in question and the evidence led regarding the aks shizra (1 x.l^W-2/1) of this village does not throw any light on this vital aspect, except that the evidence led to prove this document adversely rcilccts that on the eastern side ol Village Masoodcihcuf there is Najafgarh drain, which I.A.App. No. 421/2(tl0 & Connortcd Appeal.s of s instead of enhancing the potentiality, rather diminishes it. The wttness who was got examined to prove the aks .shizra of Village A'on«/i SukrawuU (l-;x.l'W-4/l) concedes that the metalled road between Village Nangli Sakrawati and Village Masoodahad is not reflected in the ah shizm. lividence of this witness (PW-4) instead of advancing the case of the appellants/claimants regarding the potentiality, reduces the potcntialily of the acquired land in question.

¶13There is no evidence to establish the comparability of the acquired lands under Award (Ex.PW-1/3) pertaining to Village Mangolpur Khurd and under Award (Ex.PW-1/4) of Village Mohammadpur Munirka with the acquired land in question. Rather, as per evidence of the concerned official (PW-10). Award (Ex.PW-10/1) pertained to West Patel Nagar for Metro Project. Thus, in the considered opinion ot this Court. Reference Court has rightly excluded the aforesaid Awards (Ex.PW-1/3 & l/x.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 m 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 m the vicinity of acquired lands is lacking.

¶14So far as the Delhi Jal Board instance (Ex.PW-4/1) 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 trom the said land to the land in question, fhercfore. Reference Court has rightly not relied upon the Delhi Jal Board instance (Ex.PW-4/1). 1 5. It has come in evidence of the appellants/claimants that there is no Government hospital or college in Village Masoodahad and the evidence I.A.App. No. 421 /2010 & Conncrtcd Appeals of Village Masoodabad Page 7 « regarding the acquired land in question being surrounded by developed colonies is lacking, in the face ol such deficient evidence, there is no scope lor enhancement of compensation in 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/claimants have to remain content with the assessment of compensation on the basis of the indicative price of the agricultural land by Govei-nment of NCT of Delhi as undisputedly, the acquired land in question were being used for agricultural purpose at the time of its acquisition.

¶16Upon scrutiny of the evidence on record, it becomes quite apparent that despite Village Masoodahad being declared as urban, the acquired land in question were being used for agricultural purpose by the appellant.s/claimants and so, adoption of indicative price of agricultural lands by Government ol NCI of Delhi appears to be a reasonable criteria for determining the market value of the acquired land in question, as on the date of 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 rates or L&DO rates is not permissible in 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 Thakur KuUlcep Singh (supra).

¶17Regarding increase oC 10% per annum over and above the minimum mdicalivc price lixed by Government of NC 1 ol' Delhi, the same cannot he assailed by the respondent as the Reference Court has done so while relying upon decision ol the Apex Court in Union of India V.V. Horpat. (2009) 14 SCC 375. This Court finds that the l-A.App. No. 421/2010 & Connected Appeals of Villaut. Miiso.icl.ili.nl' Page 8 # Rclcrcncc Court was juslilied in granting the aforesaid increase oi 10% per annum while relying upon the decision in Harpat (supra),

¶18In the light of the fore-going narration. I llnd 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 classilied the acquired land in question into 'A' category and IV category, as Land Acquisition Collector in the Award in question has unequivocally stated that no classiiication of the acquired land is lequired to be done as the acquired land is leveled. Consequentially, 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 Ceneral of this Court, to the concerned Reference (\)urt. ^ (SlJNrCCAlJR) March 14, 2012 JUDGE f^fh 1/ lo'iJ-cMC' r/V)- 5 ^ K f,.. /-i ^7 ''7 LA.App. No. 421/201 0 & Connoctod Appeoi.s of" Village .Masoodabad f'age 4 I

IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.APP. 463/2010 Reserved on ; February 08, 2012 Pronounced on : March 14, 2012 NARBADA DEVI Appellant Through; Mr.B.D.Sharma, Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates versus IJOI & 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/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