Ram Dayal Rawal 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 & Am. March 14, 2012 pkb tS^ScAuiR) 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 AI NEW DELHI Reservedon : February08, 20]2 Pronounced on ; March 14, 2012 LA.APP.421/2010(VILLAGEMASOODABAD) SURl-SHPRASADalias HARJ KISHAN Appellant Ihrough: Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Sukhda Dhainijaand Mr.B.K.Routray, Advocates versus UNION 01' INDIA & ANR. Through: Respondents Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathd<,Ms.K.Kiran Pathak,Mr.SuryaNath Pandey, Mr.YeeshuJain and Ms.Navlin Swain. Advocates for LAC/UOJ l.A.App. No. 1-A.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. •App. No. 469/2010 ".App. jNa 421/2010 443/2010 455/2010 458/20.10 462/2010 465/2010 LA.App. No. l.A.App.No. I 478/2010 584/2010 012/201 0 AND LA.App. No. LA.App, No. LA.App. No. LA.App. No. I.A.Aj^:).No. I^/V<App. No. .A.App. No. LA.App. No. L.A.App. No. LA.App.No. 1 441/2010 444/201 0 456/201 0 459/2010 463/2010 467/201 0 470/2010 580/2010 585/2010 013/201 0 LA.App. No. I-.A.App. No. LA.App. No. I.A.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No,

1.A.App.No. 1 I^A.App. No. 442/201 0 446/201 0 457/2010 460/20! 0 464/2010 468/2010 471/2010 583/2010 01 1/2010 12/2012 AND APPHALSfiled by UNION OF INDIA LA.App.No. 746/2010 LA.App.No. 59/20J2 l.A.App No 710/901I -A.App.No. 747/2010 LA.App,No. 748/2010 LA.App No 749/90|0 I-A.App.No. 751/20,0 l.A.App.No. 753/2010 ...A.App:Na 754/2010 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 T.A.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 NotificationNo. F.7/60/2001/L&B/LA/MRTS(S/W)/7674 of 05.08.2003issuedunder Section4 ofthe l.and AcquisitionAct, 1894 & Award No. 5/2005-06ofVillageMasoodabad,Delhi) COIMM: HON'BLE MR. JUSTICE SUNIL GAUR Q R D E R %

14.03.2012

¶1For 'NajafgarhDepot, MKTS Project', 610 bighas and 13 biswas of land of Village Masoodabadwas acquired vide Notificationof 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 passingof Award No.5/2005-06 grantingcompensationat the rate of Rs.15.70 lacs per acre on the basis of indicativeprice fixed by the Governmentof NC f of Delhi for the agricultural lands in Delhi.

¶2In the reference sought by the claimants, interest @10% per annum was granted by the ReferenceCourt ibr the period of two years, i.e., liom the date of fixing oi the minimum agriculturalprice upto the date ol Notification, i.e., compensation amount stood enhanced to Rs.l8,84,000per acre for the acquiredland in question.

¶3In the instantappeals,furtherenhancementof Rs.50 lacs per acre IS soughtby the claimants,whereasthe respondentin their appealshave sought settingaside of the impugnedorder of the ReferenceCourt and restorationof the Award. Since the grounds urged in these appeals is l-A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad cominon, therefore, by this common order, these appeals are being disposed of.

¶4On behalfof the appellants/claimants,it is urged that the learned ReferenceCourt has wrongly treated acquired lands as agriculturalland and did not appreciatethe potentialityof the acquired land as building site and assessmentof the compensationin respectof the acquired land ought to have been made on the basis of the average auction rate of residentialand commercialplots in Dwarka and the rates chargedby the DDA while allotting alternativeplots is a valid basis to arrive at true marketvalue oJ the acquiredland in question.

¶5During the course of hearing, it was pointed out by learned counsel for the appellants/claimantsthat Village Masoodabad was utbanizedin the year 1963 and zonal developmentplan was preparedby Delhi DevelopmentAuthorityin the year 1974 and the acquisitionofthe land in questionwas for the proposedresidentialpurpose. Much rcliancc was placed upon Award (Ex.PW-]/3)pertainingto Village Mangolpur Khuid and Award (hx.PW-1/4)of Village MohammadpurMunirka of the Land Acquisition Collector, wherein compensation was assessed while taking into considerationthe [,&D0 rates. It is pointed out that some parcel of acquired land abuts the main Delhi-Naiafgarhmetalled road and in the adjoiningVillageNangli Sakrawati,there are industries and NajafgarhIndustrialArea is in the vicinity.

¶6Accordingto the learned counsel for the appellants/claimants,the best pieceofevidence,i.e. allotmentof land in VillageMasoodabadand Najafgarhby DDA to Delhi .Jal Board at the rate of Rs.20 lacs per acre mthe year 1993 has been illegallydiscarded by the ReferenceCourt. Reliance is placed upon the decisions reported in Tindev Ois. Vs. UnionofIndia&Anr, 2000(54)DRJ(DB) 384; P.N.Singhvs. Unionof I.A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad m- &•••• •'C-'- - ' India, 1997 I AD (Del) 83; Had Chand vs. Union ofIndia, 91 (2001) DL F602; DelhiDevelopmentAuthontyvs. LandAcquisitionCollector &Ors., 1j0(2006)DI 1(DB); AtmaSingh (died) through LRs rv. 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 of India & Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs & Ors. va. Union ofIndia & Anr., 2004 VIII AD (SC) 37; Om Prakashvs. StateofHaryana&Ors, 20] 1 IV 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 just and reasonable.

¶7On behalfof the respondents,it was asserted by learned Senior Counselfor the respondentsthat adoptionofthe auctionrates ofDDA or Lc&DO rates in respectof agriculturalland stands negated by the Apex Court in decision in Lai Chandw. 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 question continued to 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 regardmg said instances to be comparablefor determiningthe market value oJ the land in question.Reliancewas placed upon decisionof the Apex CourtmSatpal<& Ors. Vs. Union ofIndia, (1997) 11SCC 423 to assertthat ifin 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 i:) 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 Seniorcounsel 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,there isno evidenceshowingincreasein the marketprice of the land in questiontill its acquisition.Tt is assertedthat doing away of classificationof acquired lands in question by Reference Court is illogical and without any justification. Thus, setting aside of the impugnedjudgmentand restoringof the 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 "Comparable sales instances are the safest method for 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,

(I) the sale must be a genuinetransaction:(2) the saledeed must have been executedat the time proximateto the date of issuanceof notificationunder Section 4 ofthe Act; (3) !.A,App.No. 421/2010&ConnectedAppealsofVillageMasoodabad iK? P the land covered by the sale must be in the vicinityof the acquired, land; (4) the land covered by the sale must he 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 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 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 impoitant factoi, 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, possibilityoftheirfurtherextensionand the prospectsofdevelopmentin the area have to be taken into consideration.It has been so reiteratedbv the Apex Court in AUna Singh (supra). It is in this context, I have scrutinizedthe evidence on record and 1find that there is hardly any evidence regarding the topographyof the area adjoining the acquired land in questionand the evidenceled regardingthe aks shizra (liix.PW-2/1) ol this villagedoes not throw any light on this vital aspect, except that the evidence led to prove this documentadversely refiects that on the easternside of VillageMasoodabad.there is Najafgarhdrain, which -A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 6 7^. [ instead of enhancingtlie potentiality,rather diminishesit. The witness who was got examined to prove the aks shizra ol Village Nangli Sakrawati(IIx.PW-4/1)concedesthat the metalledroad betweenVillage Nangli Sakrawati and Village Masoodabadis not reflected in the aks Mzra. Evidenceofthis witness(PW-4)insteadofadvancingthe caseof the appellants/claimants regardhig the potentiality, reduces tlie potentialityofthe acquiredland in question. There is no evidenceto establishthe comparabilityofthe acqwred lands underAward (Ex.PW-1/3)pertainingto VillageMangolpurKhiird and under Award (Ex.PW-1/4)of VillageMohammacipurMunirkawith the acquiredland in question.Rather, as per evidenceof the concerned official (PW-IO), Award (Bx.PW-10/1)pertained to West Patcl Nagar for Metro Project. Thus, in the considered opinion oi this Court, ReferenceCourt has rightlyexcludedthe aforesaidAwards (hx.PW-1/3 & Ex.PW-1/4)to determinethe fair marketvalueofthe acquiredland in question. Self servingdepositionof 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 in the vicinityofacquiredlands is lacking. ]4. 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 distancefrom the said land to the land in question,'fherefore, ReferenceCourt has rightly not relied upon the DelhiJal Board,instance(Ex.PW-4/]).

¶15It has come in evidenceofthe appellants/claimantsthat there is no Governmenthospitalor collegein VillageMasoodabad.and the evidence uA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page7 K regardingtlie acquired land in question being surroundedby developed colonics is lacking. In the facc ol 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 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 indicativepriceof the agriculturalland by Governmentof NCT of 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 apparentthat despite Village Masoodabadbeing declared as urban, the acquiredland in questionwere being used for agriculturalpurposeby the appellants/claimantsand so, adoption of 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 o/DD/I 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 Thakur Kuldeep Singh (supra).

¶17Regarding increase of 10% per annum over and above the minimum indicativeprice lixed by Governmentof NCI' of Delhi, the same cannot be assailed by the respondentas the ReferenceCourt has done so while reJying upon decision of the Apex Court in Union of India vs. Harpat, (2009) 14 SCC 375. This Court finds that tlie /3 RclerenceCourt was justifiedin grantingtlie aforesaidincreaseof 10% perannum while relyingupon tiie decisionin Hm-pat(supm).

¶18In the ligiitof the fore-goingnarration,Ifind 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 'B' category,as J.and AcquisitionCollectorin the Award in question has unequivocally stated tltat no classificationof the acquired land .s requiredto be done as the acquiredland is leveled.

¶19Consequentially,the appealsofthe appellants/claimantsas well as appealsofUnionofIndiaare dismissed,while leavingthe partiesto bear theirown costs. Registryis directedto remit the compensationamount, il-any,depositedby eitherside with the RegistrarGeneralofthis Cou.t, to the conccrnedRcfcrenccCourt. March 14, 2012 pkb 'AAPP. NO, Page 9 TS'UNrLGAUR) JUDGE

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: February 08, 2012 Pronounced on : March 14, 2012 + LA.APP. 469/2010 % RAM DAYAL RAWAL Through: 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.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Ms.K.Kiran Pathak, Mr.Suiya 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