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 (S^IL 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 DELFH Reserved on ; February 08, 2012 Pronounced on : March 14, 2012 LA.APP.421/2010(VILLAGEMASOODABAD) SIJRF.SHPRASADalias HAR] KISHAN Appellant Through; Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates versus UNION 01' INDIA & ANR. Throush: Respondents Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Ms.K.Kiran Pathak,Mr.SuryaNath Pandey, Mr.YceshuJain and Ms.NavlinSwain, Advocates for LAC/UOl LA.App. No. r.A.App. No. LA.App. No. I.A.App, No. LA.App. No. I.A.App. No. LA.App. No. C^^AApj^No l.A.App.No. 1012/2010 421/2010 443/2010 455/2010 458/2010 462/2010 465/20.1 0 469/2010 ^8/2010, 584/2010 AND LA.App. No. I.A.App. No. LA.App. No. L.A.App. No. LA.App. No. LA.App. No. LA.App. No. No. I-A.App. No. !>A.App.No. 1 AND 441/2010 444/2010 456/2010 459/2010 463/2010 467/2010 470/2010 580/2010 585/2010 013/2010 LA.App. No. I.A.App, No. LA.App. No. LA.App. No. I.A.App. No. LA.App. No. I.A.App. No. LA.App. No. LA.App.No. J I.A.App. No. 442/201 0 446/2010 457/2010 460/2010 464/201 0 468/2010 471/2010 583/2010 01 1/2010 12/2012 APPiiALSFILED BY IjT^IONOF INDIA LA.App.No. 59/2012 LA.App.No 710/9011 LA.App.No. 747/2010 LA.App.No. 748/2010 LA.App,No 749/2010 I.A.APP.No. 751/2010 LA.App.No, 753/2010 T.A.App.No! 754/20,0 I.A.App, No. 421/2010 &Connected Pago 1 (y 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 LA.App.No. 858/2010 859/2010 LA.App.No. 860/2010 LA.App.No. 861/2010 862/2010 LA.App.No. 863/2010 LA.App.No. 865/2010 866/2010 LA.App.No. 867/2010 LA.App.No. 868/2010 869/2010 LA.App.No. 267/2011 LA.App.No. 752/2010 21/2012 LA.App. No. 56/2012 (Relating to NotificationNo. F.7/60/2001/L&B/LA/MRTS(S/WV7674 of05.08.2003issuedunder Section4 ofthe Land AcquisitionAct, 1894 &AwardNo. 5/2005-06ofVillageMasoodabad,Delhi) CORAM: HON'BLE MR. JUSTICE SUNIL GAUR ORDER %

14.03.2012

¶1I'or 'NajqfgarhDepot, MKTSProject',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% per annum was granted by the ReferenceCourt for the period oftwo years. I.e., from the date of Irxing of the minimum agriculturalprice upto the date ol Notriication, 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 ^.App. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 2 cominon, therefore, by this common order, these appeals are b^ 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 assessmentofthe compensationin respectoi the acquiredland ought to have been made on the basis of the average auction rate of residentialand commercialplots in Dwarkaand the i;ates chargedby the DDA while allottingalternativeplots is a valid basis to arrive at true marketvalueof the acquiredland in question.

¶5During the course of hearing, it was pointed out by learned counsel for the appellants/claimantsthat Village Masoodabad was uibanizedin the year 1963 and zonal developmentplan was preparedby DelhiDevelopmentAuthorityin the year 1974 and the acquisitionofthe land mquestionwas for the proposedresidentialpurpose.Much reliancc was placed upon Award (Hx.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 L&DO rates. It is pointed out that some parcel of acquired land abuts the main Delhi-Najafgarhmetalled load and in the adjoiningVillageNangli Sakrawati,there are industries and NajafgarhhidustrialArea is in the vicinity.

¶6Accordmgto the learnedcounselfor the appellants/claimants,the bestpieceofevidence,i.e. allotmentofland in VillageMasoodabadand Najal^arhby 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 & Ors. Vs. UnionofIndia&Anr, 2000(54)DRJ(DB) 384; P.N.Singhvs. Unionof AApp. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 3 India, 1997 I AD (Del) Han Chand vs. Union of India, DT;r 602; DelhiDevelopmentAuthorityuv. LandAcquisitionCollector &Ors., 1j0(2006)D1 1(DB);AtmaSingh (died) throughLRs w. State of Haryana & Anr., AIR 2008 SC 709; Mahahir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors., (1987) 1 SCC 587; Thakur KuldeepSingh (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; Oni Prakashvs. StateofHaryana&Ors, 2011 TV 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 assertthat the compensationclaimedin theseappealsis justand reasonable.

¶7On behalfof the respondents,it was asserted by learned Senior Counselfor the respondentsthat adoptionofthe auctionrates ofDDA or L&DO rates in respectof agriculturalland stands negated by the Apex Court in decisionin Lai Chand 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 acquu-ed 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 regardmg said instances to be comparablefor determiningthe market valueofthe land in question.Reliancewas placedupon decj^i^fthe Apex Court in Satpal&Ors. Vs. Union ofIndia, (1997)11SCC 42Tto^" assertthat if in ashort period there is asharp increasein price, than the usual prevalenttrend in the market,such an instancecannot be^akeivas I^A.App.No. 42V2010&ConnectedAppealsofVillageMasoodabad Page 4 realistic price unless and until the reasons for such sharp rise explained and there is no explanationto justify the adoption of Delhi Jal Botird 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 developmentactivitytook place in the vicinitynor any building activity had started in the adjoining areas despite VillageMasoodabad being declared as urban and so the decisions relied upon by the appellants/claimants are distinguishable on facts.

¶9In the appeals preferredby the respondents,enhancementin 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 Collectoris soughtby the respondents.

¶10I'actoisand 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 NaduHousingBoard,(2010) 13 SCC 384, in thesewords Coinpcuable sales instances are the safest method for determiningthe market value ofthe acqidredland and as ' laid down in Shaji Kuriakose v. Indian Oil Corpn. Ltd.,

(2001) 7SCC 650, it shouldsatisfy;the factors, inter alia,

(1) the sale must be agenuinetransaction:(2) the saledeed must have been executedat the time proximateto the date of issuanceofnotificationunder Section 4 of the Act; (3) TaApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad ,/. the land coveredby the sale must be in the vicinityof the acquired land; (4) the land covered by the sale must be similar to the acquiredland; and (5) size of the plot of the land covered by the sale be comparable to the acciuired land. The sales instancesshould,preferably be 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 w 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 successfulin dischargingthis burden or not.

12., No doubt, purpose for which the acquisition is made, is an importantfactor, 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, commcrcial or industrial or mstitutional area. The existing amenities like water, electricity, possibilityoftheir furtherextensionand the prospectsofdevelopmentin the area have to be taken into consideration.It has been so\-eiteratedby 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 aks shizra (L^x.PW-2/1) ol this villagedoes not throw any light on this,vitalaspect, except that the evidence'led to prove this documentadversely reflects that on the eastern side ofVillage Masoodabad,there is Najafgarhdrain, which I.A.App,No. 421/2010&ConnectedAppealsofVillageMasoodabad Page6 •r-rw instead of enliancingtlie potentiality,rather diminishesit. The witness who was got examined to prove the a/a Mzra of Village Nangh Sah-awati(Ex.PW-4/l)concedesthatthe metalledroad betweenVillage Nangli Sakrawati and Village Masoodabadis not reflected in the ah ,hizm.Evidenceofthis witness(PW-4)insteadofadvancingthe case of the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredland in question.

¶13Thereis no evidenceto establishthe comparabilityofthe acquired landsunderAward(Ex.PW-1/3)pertainingto VillageMangolpurKhurd and underAward (Ex.PW-l/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, RelferenceCourthas rightlyexcludedthe aforesaidAwards (1-.X.PW-I/3 &Ex.PW-l/4)to determinethe fair marketvalueofthe acquiredland in question.Selfservingdepositionof claimantsregardingpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is not enough to returnpositivefindingon this crucial aspect,particularly in view ofthe fact that evidenceregardingindustriesbeingthere in the vicinityofacquiredlands is lacking.

¶14So far as the DelhiJal Boardinstance(Ex.PW-4/1)is concerned, Tfind 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,ReferenceCourt has rightly not reliedupon the DelhiJalBoardinstance(hx.PW-4/1).

¶15It has conie in evidenceofthe appellants/claimantsthattheie is no Governmenthospitalor collegein VillageMasoodabadand the evidence i,A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page7 /• .J. • regardingthe acquired land in question being surroundedby developed colonies is lacking. In the face of such deficientevidence, there is ho scope for enhancementof compensationin the instant appeals. Such a conchision is being drawn while keeping in view the ratio of the piecedents 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 indicativeprice ofthe 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 apparentthat despiteVillageMasoodabadbeing declared as urban, the acquu-edland in questionwere being used for'agriculturalpurposeby the appellants/claimantsand so, adoption of indicativeprice of agricultural lands by CJovernment ol' NCT of Delhi appears to be a reasonable criteria for determining the marl<et value'of the acquired land in question, as on the date of Notificationunder Section 4 of the Land AcquisitionAct, 1894.Suchaviewis being tal<enas tlie acquiredland in question was admittedlyundevelopedand therefore,adoptionofDDA auctionratesor L&DO rates is not permissiblein view ofthe dictumof 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 fixed by Governmentof NC'f of Delhi, the same cannot be assailed by the respondentas the ReferenceCourt has done so while relying upon decision of the Apex Court in Unhn of Mia vs. Ha,-pa,, (2009) 14 SCC 375. This Court finds that Uie I.A,App.No. 421/2010&ConnectedAppealsofVillage ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10°/ per annum while relyingupon the decisionin Harpat(supra).

¶18In the hght of the fore-goingnarration,I find no infirmityin the impugnedJudgment in which ikir compensationhas been assessed in rcspectofthe acquiredland in question.ReferenceCourt has 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 appealsof Union ofIndiaare dismissed,whileleavingthe.partiesto bear their own costs. Registryis directedto remit the compensationamount, •I any, depositedby eitherside with the RegistrarGeneralofthis Court, 10 the concernedReferenceCourt. "-"TSlJNILGAUR) March 14, 20,2 picb Page 9

+ % IN THE HIGH COURT OF DELHI AT NEW DELHI LA.APP. 584/2010 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