Somesh Paliwal 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. March 14, 2012 pkb GAUR) 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 Reserved on : Febmary 08, 2012 Pronounced on : March 14, 2012 LA.APP.421/2010(VILLAGEMASOODABAD) SUl^^SHPRASADaliasHARI KISHAN Appellant Through: Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Suklida Dhamija and Mr.B.K.Routray, Advocates versus UNION 01' INDIA & ANR. Through: Respondents Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathalc, Ms.K.Khan Pathak,Mr.SuryaNath Pandcy, Mr.Yeeshu Jain and Ms.Navlin Swain, Advocates for LAC/UOI • No. 421/2010 • No. 443/2010 No. 455/2010 No. 458/2010 No. 462/2010 No. 465/2010 No. 469/2010 No. 478/2010 No. 584/2010 No. 1012/2010 LA.App LA.App LA.App. LA.App. LA.App. LA.App. LA.App. LA.App. LA.App. LA.App. ANID LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App.No. 1 441/2010 444/2010 456/2010 459/2010 463/2010 467/2010 470/2010 580/2010 585/2010 013/2010 LA.App LA.App LA.App.

1.A.App. LA.App. LA.App. LA.App. LA.App. LA.App. LA.App. .No. 442/2010 • No. 446/2010 No. 457/2010 No. 4.60/201 0 No. 464/2010 No. 468/2010 No. 471/2010 No.^83/2010 No.1^011/2010 No. 12/2012 AND APPEAI,Sfiled by IJNIONOF INDIA LA.App.No. 746/2010 LA.App.No. 59/2012 LA.App.No. 710/2011 LA.App.No. 747/2010 LA.App.No. 748/2010 LA.App.No. 749/2010 LA.App.No. 751/2010 LA.App.No. 753/2010 LA.App.No. 754/2010 .A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 1 LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. 755/2010 LA.App. No. 756/2010 859/2010 LA.App. No. 860/2010 862/2010 LA.App. No. 863/2010 866/2010 LA.App. No. 867/2010 869/2010 LA.App. No. 267/2011 21/2012 LA.App. No. 56/2012 LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. 858/2010 861/2010 865/2010 868/2010 752/2010 (Relating to NotificationNo. 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

¶1For 'NajafgarhDepot, MKTS Project',610 bighas and 13 biswas of land of Village Masoodabadwas acquired vide Notificationof 5"' August, 2003 under Section4 ofthe Land AcquisitionAct, 1894 which was followed by Notificationof 8"^ August, 2003 under Section6 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% pcr annum was grantedby the ReferenceCourt for the periodoftwo years, I.e., irom the date of lixing of the 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,furtherenhancementofRs.50 lacs per acre is soughtby the claimants,whereasthe respondentin theirappealshave sought settingaside of the impugnedorder of the ReferenceCourt and restorationof the Award. Since the grounds urged in these appeals is lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad 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 acquiredlands as agriculturalland and did not appreciatethe potentialityof the acquired land as building site and assessmentof the compensationin respectofthe acquired land 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 foi the appellants/claimantsthat Village Masoodabad was uibanizedin the year 1963 and zonal developmentplan was preparedby Delhi DevelopmentAuthorityin the year 1974 and the acquisitionofthe land mquestionwas for the proposedresidentialpurpose.Much reliance was placed upon Award (Ex.PW-1/3)pertainingto Village Mangolpur Khurd and Award (Ex.PW-1/4)of Village MohammadpurMunirka of the Land Acquisition Collector, wherein compensationwas assessed while taking into considerationthe I.&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 learnedcounsel for the appellants/claimants,the bestpieceofevidence,i.e. allotmentof land in VillageMasoodabadand Najafgarhby DDA to Delhi Jal Board at the rate ofRs.20 lacs per acre in the year 1993 has been illegallydiscarded by the ReferenceCourt. Reliance is placed upon the decisions reported in Tindey &On. Vs. UnionofIndia&Am, 2000(54)DRJ(DB) 384; P.N.Singhvs. Unionof lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodlM Page 3 India, 1997 I AD (Del) 83; Harl Chand V5. Union ofIndia, 91 (2001) DLT 602; DelhiDevelopmentAuthorityvs. LandAcquisitionCollector &Ors., 130(2006)D1 1(DB);AtniaSingh (died) throughLRs w. State of Haryana & Anr., AIR 2008 SC 709; Mahabir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors., (1987) 1 SCC 587; Thakur KuldeepSingh (D) Thr. L.R. & Ors vs. Union of India Ors., AIR 2010 SC 1272; Prakash (D) by LRs & Ors. vs. Union ofIndia & Anr., 2004 VIII AD (SC) 37; Oni Prakashvs. StateofHaryana<&. Ors, 20] 1 IV AD (SC) 382; Sqgunthala(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 auctionratesofDDA or L&DO rates in respectof agriculturalland stands negated by the Apex Courtin decisionmLai 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 MohammadpurMunirkaare 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 comparablefor determiningthe market value ofthe land in question.Reliancewas placedupon decisionof the Apex Courtin Satpal&Ors. Vs. Union ofIndia, (1997)11SCC 423 to assertthat ifmashort period there is asharp increasein price,than the usual prevalenttrend in the market,such an instancecannot be taken as lAApp,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 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,there is no evidenceshowingincreasein the marketprice of the land in questiontill its acquisition.It 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 restoringofthe Award ofthe 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 determiningthe market value of the acquired land and as laid down in Shaji Kuriakose v. Indian Oil Corpn. Ltd., ^

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

(1) the sale mustbea genuinetransaction;(2) the sale deed must have been executedat the time proximateto the date of issuanceof notificationunder Section 4 of the Act; (3) I.A.App,No. 421/2010&ConnectedAppealsofVillageMasoodabad Page5 X) the land coveredby the sale must he 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 contemplatedunder 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, conimercial 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 reiteratedby the Apex Court in Atma Singh (supra). It is in this context, I have scrutinizedthe 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 ah shizra(Rx.PW-2/1) ofthis villagedoes not throw any light on this vital aspect, except that the evidence led to prove this documentadversely reflects that on the easternside ol VillageMasoodahad,there is Najafgarhdrain, which I.A.App.No. 421/2010&ConnectedAppealsofVillageMasoodahad Page 6 instead of enhancingthe potentiality,rather diminishesit. The witness wlio was got examined to prove the ala shizra of Village Nangli Sakrawati(Kx.PW-4/l)concedesthat the metalledroad betweenVillage Nangli Sakrawatiand Village Masoodabadis not reflected in the ah shizra.Evidenceofthis witness(PW-4) insteadofadvancingthe caseof the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredland in question.

¶13Thereis no evidenceto establishthe comparabilityofthe acqun-ed lands underAward(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)pertainedto West Patcl Nagar for Metro Project. Thus, in the considered opinion of this Court, ReferenceCourt has rightlyexcludedthe aforesaidAwards (hx.PW-1/3 & Ex.PW-1/4)to determinethe fair marketvalue ofthe acquiredland in question. Selfserving depositionof claimantsregardingpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is not enough to return positivefinding on this crucial aspect,particulaily in view of the fact that evidenceregardingindustriesbeing there in the vicinityof acquiredlandsis 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 respcct of this transactionhas concededthat he is not able to tell the distance from the said land to the land in question.Therefore,ReferenceCourt has lightly not reliedupon the DelhiJalBoard,instance(Ex.PW-4/1).

¶15Ithas come in evidenceofthe appellants/claimantsthat there is no Governmenthospitalor collegein VillageMasoodabadand the evidence LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page7 regardingthe acquired land in questionbeing surroundedby developed colonies is lacking. In the face of 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. Plaving 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 mdicativepriceofthe 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 VillageMasoodabadbeing declaredas urban, the acquiredland in questionwere beingused for agriculturalpurposeby the appellants/claimantsand so, adoptionof indicativeprice of agricultural lands by Government of NCl^ 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. Suchaview is beingtaken as the acquiredland in question was admittedlyundevelopedand therefore,adoptionofDDA 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 Thakurliuldeep 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&ConnectedAppealsofVillageMasoodabad Page 8 ' - ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10% per annum whilerelyingupon the decisionin Harpat(supra).

¶18In the light of the fore-goingnarration,I find no infirmityin the impugnedjudgment in which fair compensationhas been assessed in lespectofthe 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 appealsofUnionofIndiaare dismissed,while leavingthe partiesto bear their own costs. Registryis directedto remit the compensationamount, if any, depositedby eitherside with the RegistrarGeneralofthis Court, to the concerned Reference Court. AApp. No. 421/2010&ConnectedAppealsofVillageMasoodabad 5UNILGAUR) JUDGE March 14, 2012 pkb Page 9

+ % IN THE HIGH COURT OF DELHI AT NEW DELHI LA.APP. 583/2010 SOMESHPALIWAL Through: versus UNION OF INDIA & ANR Through: Reserved on : February 08, 2012 Pronounced on : March 14, 2012 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.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