Mahender Pal @ Chander Mohan 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 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. I'.r.v' IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : Febmaiy 08, 2012 Pronounced on ; March 14, 2012 LA.APP.421/2010(VILLAGEIMASOODABAD) SURliSIlPRASADalias1lARl KISHAN 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 Pandey, Mr.Yeeshu Jain and Ms.Navlin Swain. Advocates for LAC/lJOl . LA.App i.A.App LA.App l.A.App l.A.App LA.App LA.App LA.App f.A.App LA.App. • No. 421/2010 • No. 443/2010 . No. 455/2010 No. 458/2010 No. 462/20 iO No. 465/2010 No. 469/2010 No. 478/2010 No. 584/2010 No. 1012/2010 AND LA.App l^.App dXA . No. 441/2010 . No. 444/70_m No. 456/2010 pp LA.App LA.App LA.App LA.App l.A.App, LA.App, LA.App. No. 459/2010 No. 463/2010 No. 467/2010 No. 470/2010 No. 580/2010 No. 585/2010 •No. 1013/2010 T.A.App I..A.App iWa^. l.A.App. LA.App. LA.App. LA.App. LA.App. LA.App. LA.App. No. 442/2010 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' AND APPIiALSFILI<DBY UNION OF INDIA LA.App.No. 746/2010 LA.App. No. 59/2012 LA.App.No. 710/2011 LA.App.No. 747/2010 l.A.App.No, 748/2010 l.A.App.No.749/2010 LA.App.No. 751/2010 LA.App.No. 753/2010 l.A.App.No. 7.54/2010 "t ..i-. A r.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 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 [.A.App.No. 752/2010 LA.App. No. 21/2012 LA.App. No. 56/2012 (Relating to Notillcation No. L.7/60/2001/L&B/LA/MRTS(S/W)/7674 of 05.08.2003issued under Section4 of the I.and AcquisitionAct, 1894 &Award No. 5/2005-06ofVillageMasoodabad,Delhi) CORAM: HON'BLE MR. JUSTICE SUNIL GAUR ORDER %

14.03.2012

¶1For •Najqfgarh Depot, MKTS Project',610 bighas and 13 biswas of land of Village Masoodabad was acquired vide Notificationof 5"' August, 2003 under Section 4 ofthe Land AcquisitionAct, 1894 which was followed by Notificationof 8"' August, 2003 under Section 6 of the 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 period of two years, I.e., from the date of fixing of the minimum agriculturalprice upto the date ol Notification, i.e., compensation amount stood enhanced to Rs.18,84,000per acre for the acquiredland in question. In the instantappeals, furtherenhancemenLof Rs.50 lacs pei-acre is soughtby the claimants,whereasthe respondentin theirappealshave sought settingaside of the impugned order of the ReferenceCourt and ^storationof the Award. Since the grounds urged in these appeals is ic.'sagsgEgajgam. lAApp. No. Page 2 wT / common, Lhci-cfore, by this common order, these appeals are being disposed of.

¶4On behall of the appellants/claimants,it is urged that the learned ReferenceCourt has wrongly treated acquired lands as agricultural"land 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 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 zonafdevelopmentplan was preparedby Delhi DevelopmentAuthorityin the year 1974 and the acquisitionofthe land in questionwas for the proposedresidentialpurpose.Much reliance was placed upon Award (l.:x.PW-i/3)pertainingto Village Mangolpur Khuid and Award (bx.PW-1/4)of Village MohammadpurMunirkaof the r.and Acquisition Collector, wherein compensationwas assessed whjle 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 Najal^arhIndustrialArea is in the vicinity.

¶6Accordingto the learnedcounsel for the appellants/claimants,die best pieceofevidence,i.e. allotmentof land in Village Masoodabadand Najafgarhby DDA to Delhi .lal 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. Fs. UnionofIndia&Anr, 2000(54)DRJ(DB) 384; RN.Singhvs. Unionof lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad & India, 1997 I AD (Del) '6?>\ Hdn Chand rv. Union of India, 91 (200!) Di;i' 602; Delhi DevelopmentAuthority kv. Land Acquisition Collector & Ors., 130(2006)DT 1(DB);AtmaSingh (died) throughLRs \>s. State of Haryana <§ Anr., AIR 2008 SC 709; Mahabir Prasad Santuka and Ors. Vs Collector, Cuttack and ^Ors., (1987) 1 SCC 587; Thakur Kuldeep Singh (D) Thr. L.R. & Ors Union of India & Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs & Ors. vs. Union of India & Anr., 2004 VIII AD (SC) 37; Om Prakash vs. 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. State of Maharashtra,AIR 2009 SC 2238, to assert that the compensationclaimedin these appealsis justand reasonable.

¶7On behalfof the respondents,it was asserted by learned Senior Counsel for the respondentsthat adoptionof the auctionrates of DDA or L&DO lates in respect of agriculturalland stands negated by the Apex Court in decisionin Lai Chand vs. Union ofIndia andAnr., (2009) 15 SCC 769. It was also urged by learned counsel for the respondentsthat despite Village Masoodabad being declared to be urbanized, the acqun-ed land in questioncontinuedto be used as agriculturalland and therefore, instances of Village Mangolpur Khurd and Village lUohammadpurMunirkaarc oi no avail and the instanceofallotmentof land by DDA in favour of Delhi Jal Board cannot be treated to be representativepricc ofthe lands in the vicinityas the evidenceis lacking regardnig said instances to be comparablefor determining,the market value of the land in question.Reliancewas placed upon decisionof the Apex Court in Satpal&Ors. Vs. UnionofIndia, (1997) I] SCC 423 to assertthat if in ashort period there is asharp increasein price,than the usual prevalenttrend in the market,such an instancecannotbe taken as I^A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 4 realistic price iinjess, and until the reasons for such sharp rise are explained and there is no explanation to Justify the adoption of Delhi .lal 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 evidenceshowing increase in the market price ot the land in question till its acquisition. It is asserted that doing away of classification of 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 ra. Special Tehsildar (Land Acquisition) Tamil Nadu Housing Board, (2010) 13 SCC 384, in these words:- "Coinparable sales instances are the safest method for deterinining the market value of the acquired land and as laid down in Shaji Kuriakose v. [ndian Oil Corpn. Ltd.,

(2001) 7 SCC 650, it should satisfy the factors, inter alia,

(1) the sale must be a genuinetransaction; (2) the sale deed must have been executedat the time proximate to the date of issuanceof notificationunder Section 4 of the Act; (3) LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 5 i'', f-u.' the land coveredhy the_sale must he in the vicinityof the acquired land; (4) ' the' land covered, by the sale must be 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 the principles contemplated,under Section 23 of the Act, as held in Kanwar Singh v. Union of India.

(1998)8see 136." • ' ' ] 1. Having 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, puipose for which the acquisition is made is an important factor, but the question as to whether the acquired land has potential value or not, is primarily one of tact 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, possibilityoftheir lurtherextensionand the prospectsofdevelopmentin the area have to be taken into consideration.It has been so reiteratedbv •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 regarding the topography oi the area adjoining the acquired land in questionand the evidenceled regardingthe aks shizra(Ex.PW-2/1) of this village does 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 l-A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 6 instead of enhancingthe potenliality,rather diminishesit. The witness who was got examined'to'proVe''the ak Mzra of Village Nangli Sakrawati(Ex.PW-4/1)concedesthatthe metalledroad betweenVillage Nangli Saki-awati and VillageMasoodabadis not reflected in the ah shizra.Evidenceofthis witness(PW-4)insteadofadvancingthe caseof the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredland in question. There is no evidenceto establishthe comparabilityofthe acquired landsunderAward (Ex.PW-1/3)pertainingto VillageMangolpurKkurd and under Award (Hx.PW-1/4)of VillageMohammadpurMimirkawith the acquiredland in question.Rather, as per evidenceof the concerned official (PW-IO), Award (Cx.PW-lO/l)pertainedto West Patel 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 enough to return positivefindingon 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-4/1)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 reliedupon the DelhiJalBoardinstance(Ex.PW-4/]).

¶15Ithas come in evidenceofthe appellants/claimantsthat there is no Governmenthospitalor collegein VillageMasoodabad.and the evidence LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page7 regardingthe acquired'land in questionbeing surroundedby developed colonies is lacking. In the face df'.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 indicativepriceof the agriculturalland by Governmentof NCT of Delhi as undisputedly,the acquired land in question were being used for agriculturalpurposeatthe time of its acquisition.

¶16Upon scrutiny of the evidence on record, it becomes quite apparentthat,despiteVillageMasoodabadbeing declaredas urban, the acquiredland in questionwere beingused for agriculturalpurposeby the appellants/claimantsand so, adoptionofindicativeprice ofagricultural 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 auctionratesorL&DO.ratesis not permissiblein view ofthe dictum of. the Apex Court in La! 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 Union of India vs. Harpat, (2009) 14 SCC 375. This Court finds that the I.A.App.No. 421/2010&ConnectedAppealsofVillageMa.-ioodabad Page 8 '";V. • ..-I/''*-;-, ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10% per annum while relyingupon the decisionin Harpat(supra).

¶18In the light of the fore-goingnarration,Ifind no indrmityin the impugned judgment in which fair compensationhas been assessed in respectofthe acquiredland in question.ReferenceCourt has rightlynot classified the acquired land in question into 'A' category and 'B' category, as I.and AcquisitionCollector in the Award in question has unequivocally stated that no classiiication of the acquired land is requiredto be done as the acquiredland is leveled. ' .19. Consequentially,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 concernedReferenceCourt. March 14, 2012 pkb TSUNILCAUR) lUDGE

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 + LA.APP. 456/2010 MAHENDERPAL @CHANDERMOHAN Appellant Through; Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates versus UOI & ANR Respondent Through: Mr.SanjayjPoddar,SeniorAdvocate with Mr.Sanjay Pathalc,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 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