Union of India v. Diwan Chand & Anr

ORDER %

14.03.2012

¶1For 'Najafgarh Depot. ^4RTSProject', 610 bighas and 13 biswas of land of Village Masoodabad was acquired vide Notification of 5^'' August, 2003 under Section 4 of the 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 of Rs.15.70 lacs per acre on the basis of indicative pricc fixed by the Government of NCT' of Delhi For the agricultural lands in Delhi.

¶2In the reference sought by the claimants, interest @10% per annum was granted by the ReierenccCourt for the period of two years, i.e., from the date of llxing ofthe minimum agriculturalprice upto the dale ol Notification, i.e., compensation amount stood enhanced to Rs. 18,84,000per acre lor the acquiredland in question.

¶3In the instantappeals, further enhancementofRs.50 lacs per acre IS sought by the claimants,whereas the respondentin their appealshave sought setting aside of the impugned order of the ReferenceCourt and restorationof the Award. Since the grounds urged in these appeals is -A.App. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 2 common, therefore, by this common order, these appeals arc being disposed of

¶4On behalf of the appellants/claimants, it is urged that the learned ReferenceCourt has wronglytreated 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 charged by the DDA while allotting alternative plots is a valid basis to arrive at true marketvalue of the acquiredland in question.

¶5During the course oi hearing, it was pointed out by learned counsel ioi the appellants/claimantsthat Village Masoodabad was urbanizedin 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 compensation was assessed while taking into considerationthe L&DO rates. It is pointed out that some parcel ofacquired land abuts the main Delhi-Najafgarhmetalled road and in the adjoiningVillageNangli Sakrawati,there are industries and NajafgarhhidustrialArea is in the vicinity.

¶6Accordingto the learnedcounsel for the appellants/claimants,the best pieceofevidence,i.e. allotmentof land in VillageMasoodabadand Najai^arhby DDA to Delhi Jal 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 Tindcy S Ors. Vs. UnionofIndia&Anr, 200()(54)DR.)(DB) 384; RN.Sin^.hvs. Unionof I^A.App.No. 421/2010&ConnectedAppealsofVillagcMasoodabad Pago 3 India, 1997 I AD (Del) 83; Hari Chand vs. Union of India, 91 (2001) DL1 602; Delhi Development Authority Land Acquisition Collector & Ors., 130(2006)D'F \(DBy,Atma Singh (died) through LRs vs. State of Haryana <& Anr., AIR 2008 SC 709; Mahahir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors., (1987) I SCC 587; Thakur Kuldeep Singh (D) Thr. LR. & Ors w. Union of India & Ors., AIR 2010 SC 1272; Oni Prakash (D) by LRs & Ors. ks. Union of India & Am., 2004 Vin AD (SC) 37; Oni Prakash kv. StateofHaryana&Ors, 2011 IV AD (SC) 382; Sagunthala(dead) through LRs v.v. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thirthkarvs. State ofMaharashtra,AIR 2009 SC 2238, to assert that the compensationclaimedin these appealsis justand reasonable.

¶7On behalfof the respondents,it was asserted by learned Senior Counselfor the respondentsthat adoptionofthe auctionrates ofDDA or L&DO lates in respectof agriculturalland stands negated by the Apex Court in decision in Lai Chand uv. 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 acquired land in question continued to be used as agriculturalland and therefore, instances of Village Mangolpur Khurd and Village MohammadpurMunirkaarc ofno avail and the instanceofallotmentof land by DDA in lavour of Delhi Jal Board cannot be treated to be representativepricc ofthe lands in the vicinityas the evidenceis lacking regarding said instances to be comparablefor determiningthe market value of the land in question.Reliancewas placed upon decisionof the Apex CourtmSatpal&Ors. Vs. Union ofIndia, (1997) 11 SCC 423 to assertthat if in ashort period there is asharp increasein pricc, than the usual prevalenttrend in the market,such an instancecannot be taken as I^A.App.No. 42]/2010&ConnectedAppealsofVillag^asoodab^ Page 4 r3 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 classification of acquired lands in question by Reference.Court is illogical and without any justification, 'fhus, 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 kv. 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 Indian Oil Corpn. Ltd.,

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

(1) the sale must be a genuine transaction: (2) the sale deed must have been executedat the time proximate to the date of issuance of notificationunder Section 4 of the Act: (3) .A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page5 /7 the land covered by the sale must be in the vicinity of the acquired land;

(4) the land covered by the sale must be similar to the acquired land: and (5) size of the plo! of the land, covered, by the sale be comparable to the acquired land. The 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 Singh v. Union of hndia,

(1998)8 see 136." 1I. 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 successfulin dischargingthis burden or not.

¶12No 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 institutional area. 11ie existing amenities like water, electricity, possibilityof their furtherextensionand 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 J find that there is hardly any evidence regarding the topographyof the area adjoining the acquired land in questionand the evidenceled regardingthe aks shizra (T-x.PW-2/1) ol this villagedoes not throw any light on this vital aspect, except that the evidence led to prove this document adverselv renccls that on the easternside ol VillageMasoodabad,there is Najafgarhdrain, which l.A.App.No. 42V2010&ConncctcdAppealsofVillageMasoodabad instead of enhancingthe potentiahty,rather diminishesit. The witness who was got examined to prove the aLs shizra of Village Na.gl, Sakra.:ti(Ex.PW-4/1)concedesthat the metalledroad betweenVillage Nangli Sakrawati and Village Masoodahadis not reflected in the a/a Mzra. Evidenceofthiswitness(PW-4)insteadofadvancingthe case ot 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-1/4)ofVillageMohammadpurUunivkawith the acquiredland in question.Rather,as per evidenceof the concerned official (PW-10). Award (Ex.PW-10/1)pertainedto West Patel Nagar for Metro I'roject. Thus, in the considered opinion ol this Court, ReferenceCourt has rightlyexcludedthe aforesaidAwards (Ex.PW-l/3 &Ex.PW-1/4)to determinethe fair marketvalueofthe acquiredland in question.Selfservingdepositionof claimantsregardingpotentialityof acquired lands 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)ls 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 distance Irom the said land to the land in question.Therefore,ReferenceCourt has lightly not reliedupon the DelhiJal Boardinstance(hx.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthat theie is no Governmenthospitalor collegein Villagehdasoodabadand the evidence LA.App.No. 421/2010&Connected.AppealsofVillageMasoodabad Page7 t ' /• f /• • V('-. regardingthe acquired land in question being 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. 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 indicativeprice of the agriculturalland by Governmentof NCT of Delhi as undisputediy,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 despite VillageMasopdabadbeing declared as urban, the acquiredland in questionwere beingused for agriculturalpurposeby the appellants/claimantsand so, adoption of indicativeprice 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 Notificationunder Section 4 of the Land AcquisitionAct, 1894. Such aview is being taken 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 Thakur Kukleep Singh (supra).

¶17Regaiding increase oi 10% per annum over and above the minimum indicativeprice fixed by Governmentof NCT of Delhi, the same cannot be assailed by Ihc respondentas the Reference Court has done so wliile relyhig upon decision of the Apex Couit in Union of India vs. Harpat, (2009) 14 SCC 375. This Court finds that the '.A.App.No. 421/2010&ConnectedAppealsofVillageMa.soodalMd Page 8 •. .r- % ReferenceCourt was justifiedin grantingthe albresaidincreaseof 10° per annum whilerelyingupon the decisionin Harpat(supra).

¶18hi the light ofthe lore-goingnai'ration,I find no inHrmity in 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 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 appealsofUnionof hidiaare dismissed,while leavingthe partiesto bear their own costs. Registryis directedto remit the compensationamount, if any, depositedby eitherside with the RegistrarGeneralof this Court, to the concerned Reference Court. " TSUNILGAUR) JUDGE March 14, 2012 pkb I'A-APP- ^21/2010&Cm^ed A^,Lsof

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 COIJRI" OF DELHI AT NEW DELHT Reserved on ; February 08, 2012 Pronounced on : March 14, 2012 LA.APP.421/2010(VILLAGE MASOODAJ5AD) SURl^SHPRASADalias IIARI KISMAN Appellant Through; 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/UOI LA.App. No. LA.App. No. f.A.App. No. LA.App. No. LA.App. No. L.A.App. No. LA.App. No. LA.App. No. [-A.App. No. l.A.App.No.l 421/2010 443/2010 455/2010 458/20.10 462/2010 465/20,1 0 469/2010 478/2010 584/2010 012/201 0 AND LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. I.A.App. No. LA.App. No. LA.App. No. LA.App.No. 1 441/2010 444/201 0 456/2010 459/2010 463/2010 467/201 0 470/2010 580/2010 585/2010 013/201 0 T-A.App. No. T.A.App. No. LA.App. No. LA.App. No, LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App.No. I I,.A.App. No. AND APPEALS FILI'D BY UNION OF INDIA LA.App.No. 746/2010 LA.App.No. 59/2012 \ LA.App.No. 710/201 IJ LA.App.No. 747/2010 LA.App.No. 748/2010 i:X7Vp^n^J^~74979(^ LA.App.No. 751/2010 LA.App.No. 753/2010 LA.App.No. 754/2010 I.A.App,No. 42t/201()&ConnectedAppealsofVillageMasoodabad 442/201 0 446/2010 457/2010 460/2010 464/201 0 468/201 0 471/2010 583/2010 01 I /201 0 12/2012 Pago 1 o l.A.App. No. 755/2010 LA.App. No. 756/2010 LA.App. No. 858/2010 LA.App. No. 859/2010 LA.App. No. 860/2010 Ly\.App. No. 861/2010 LA.App. No. 862/2010 l.A.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 Notification No. F.7/60/200l/L&B/LA/MRTS(S/W)/7674 of 05.08.2003issuedunder Section4 of the Land AcquisitionAct, 1894 & Award No. 5/2005-06 of Village Masoodahad, Delhi) CORAM: HON'BLE MR. JUSTICE SUNIL GAUR