Union of India & Anr v. Suresh Parshad @ Hari Kishan

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 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 COURJ OF DELni AT NEW DELHI Reserved on : February 08, 20! 2 PronoLineed on ; March !4, 2012 I.A.APP.42i/2010(VILLAGEMASOODABAD) SURliSIIPRASADalias HARl KISMAN Appellant Ihrough: Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Sukhda Dhainija and Mr.B.K.Routray, Advocates versus UNION 01-INDIA & ANR. Through; Respondents Mr.Sanjay Poddai", Senior Advocate with Mr.Sanjay Pathak, Ms.lv.Kiran Pathak,Mr.SuryaNath Pandey, Mr.Yeeshu Jain and Ms.Naviin Swain, Advocates for LAC/UQI I.A.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. f.A.App. No. J.A.App.No. 1 421/2010 443/2010 455/2010 458/2010 462/2010 465/2010 469/2010 478/2010 584/2010 012/2010 . AND L.A.App. No. LA.App. No. LA.App. No. LA.App. No. 1A.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 013/201 0 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. LA.App.No. 1 LA.App. No. 442/201 0 446/2010 457/2010 460/2010 464/2010 468/2010 471/2010 583/2010 01 1/2010 12/2012 AND appl:als filhd by union of india LA.App.No. 746/2010 LA.App. No. 59/2012 LA.App. No. 7I0/20JI LA.App.No. 747/2010 LA.App.No. 748/2010 [.A..App.No 749/2010 I.A.App.No. 751/2010 LA.App. No. 753/2010 LA.App.No. 754/2010 l.A.Ap],.No. 421/2010&ConneclcdAppealsofVillageMasoodabad l^age 1 / Q.A.App.No. 755/20LA.App.No. 756/2010 LA.App.No. 858/2010 LA".App.Nl^59/2010 LA.App.No. 860/2010 LA.App.No. 861/2010 LA.App.No. 862/2010 l.A.App,No. 863/2010 l.A.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 of the Land AcquisitionAct, 1894 & Award No. 5/2005-06of VillageMasoodabad,Delhi) COl^M: MON'BLE MR. JUSTICE SUNIL GAUR ORDER %

14.03.2012

¶1For 'NajafgarhDepot, MKTS Project\ 610 bighas and 13 biswas ol land of Village Masoodabad was acquired vide Notificationof 5"' August, 2003 under Section4 of the Land AcquisitionAct, 1894 which was followed by Notificationof 8'" August, 2003 under Section6 ofthe 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 Ibr 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 of Notification, i.e., compensation amount stood enhanced to Rs.18,84,000per acre for the acquiredland in question.

¶3In the instantappeals, furtherenhancementof Rs.50 lacs per acre IS sought by the claimants,whereasthe 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 I.A.App,No, 421/2010&ConnectedAppeal.sofVillageMa.soodabacI Page common, therefore, by this common order, these appeals arc being disposed of

¶4On behalfof the appellants/claimants,it is urged that the learned ReferenceCourt has wronglytreatedacquired lands as agriculturalland and did not appreciatethe potentialityof the acquired land as building site and assessmentofthe compensationin respectofthe 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 of hearing, it was pointed out by learned counsel for the appellants/claimantsthat Village Masoodabad was urbanizedmthe year 1963 and zonal developmentplan was preparedby Delhi DevelopmentAuthorityin the year 1974 and the acquisitionofthe land in questionwas for the proposedresidentialpurpose.Much reliance was placed upon Award (Ex.PW-1/3)pertainingto Village Mangolpur Khuid 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 of acquired land abuts the main Delhi-Najafgarhmetalled road and in the adjoiningVillageNangli Sakrawati,there are industries and NajalgarhIndustrialArea is in the vicinity.

¶6Accordingto the learnedcounsel for the appellants/claimants,the best piece of evidence,i.e. allotmentof land in VillageMasoodabadand Najafgarhby DDA to Delhi Jal Board at the rale of Rs.20 lacs per acre in the year 1993 has been illegallydiscarded by the ReferenceCourt. Rcliance is placed upon the decisions reported in Tindey Ors. Vs. UnionofIndia&Anr, 2000(54)DRJ(DB) 384; P.N.Singhvs. Unionof I.A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad p^gc3 ly India, 1997 [ AD (Del) 83; Havi Chand vs. Union ofIndia, 91 (200,1) D\:v 602; DelhiDevelopmentAuthorityvs. LandAcquisitionCollector &Ors., 1j0(2006)D1 1(DB);AtmaSingh (died) through LRs kv. State of Haryana & Anr., AIR 2008 SC 709; Mahahir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors., (1987) 1 SCC 587; rhakur Kuldeep Singh (D) Thr. L.R. & Ors vs. Union ofIndia & Ors., AIR 20]0 SC 1272; Om Prakash (D) by LRs & Ors. vs. Union ofIndia & Anr., 2004 VIII AD (SC) 37; Om Prakash vs. StateofHaryana&Ors, 201 1 IV AD (SC) 382; Sagunthala(dead) through LRs rv. Special Tehsildar (L.A.) and ors., AIR 20]0 SC 984; Mahesh Dattatray Thirthkarvs. State ofMaharashtra,AIR 2009 SC 2238, to assert that the compensationclaimedin these appealsis just and 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 Chandvs. Union ofIndiaandAnr., (2009) 15 SCC 769. It was also urged by learned counsel for the respondentsthai 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 of no avail and the instanceofallotmentof land by DDA in lavour of Delhi Jal Board cannot be treated to be representativepriceof the lands in the vieinityas the evidenceis lacking regarding said instances to be comparablefor determiningthe market value of the land in question.Reliancewas placed upon decisionof the Apex Court in Satpal&Ors. Vs. Union ofIndia, (1997) I1SCC 423 to assertthat if in ashort periodtl^ere 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 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. 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 v.s. Spexial 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 v. Indian Oil Corpn. Ltd.,

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

(1) the sale must be a genuine transaction; (2) the sale deed must have been executed at the time proximate to the date of issuance of notificationunder Section 4 of the Act: (3) LA.App. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 5 the land covered by the sale must he in the vicinityof the acquired land; (4) the land covered by the sale must he similar to the acquired land; and (5) size of theplot of the land covered by the sale be comparable to the acquired land. The sales instances shouldpreferably be closest to 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. "

¶11ITaving 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 appcllants/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, commercial or industrial or institutional area. The existing amenities like water, electricity, possibilityoftheir 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, Thave scrutinizedthe evidence on record and ] find that there is hardly any evidence regarding the topography of the area adjoining the acquired land in questionand the evidenceled regardingthe aks shizra (Ex.PW-2/1) ofthis village does not throw any light on this vital aspect, cxcepi thai the evidence led to prove this document adversely reflects that on the eastern side of Villagehdasoodabad,diere is Najafgarhdrain, which I.A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 6 4-; J1 instead of enhancingthe potentiality,rather diminishesit. The witness who was got examined to prove the aks shizra of Village Nangb Sakrawati(llx.PW-4/1)concedesthatthe metalledroad betweenVillage Nangli Sakrawati and Village Masoodabadis not reflected in the ah shizra.Evidenceofthis witness(PW-4)insteadofadvancingthe case of the appellants/claimants regai'ding the potentiality, reduces the potentialityofthe acquiredland in question.

¶13There is no evidenceto establishthe comparabilityofthe acquu'ed lands under Award (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 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 marketvalue ol the acquiredland in question. Self servingdepositionof claimantsregardingpotentialityol 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 vicinityofacquiredlands is lacking.

¶14So far as the DelhiJal Boardinstance(Ex.PW-4/])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 DelhiJal Boardinstance(Ex.PW-4/]). ]5. Ithas come in evidenceofthe appellants/claimantsthat there is no Governmenthospitalor collegein VillageMasoodabadand the evidence LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page7 I"; &-• I regardingthe acquired land in question being surroundedby developed colonics is lacking. In the tace 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 acquired land in question, the appellants/claimantshave to remain contcnt with the assessment of compensation on the basis of the indicativeprice of the agriculturalland by GovernmentofNCTof 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 appaientthat despite VillageMmoodabadbeing declared as urban, the acquiredland in questionwere beingused for agriculturalpurposeby the appellants/claimantsand so, adoption of indicativeprice of agricultural lands by Government ot NC'I^ of Delhi appears to be a reasonable criteria for determining the market value of the acquired land in question, as on the date of Notification under Section 4 of the Land AcquisitionAct. 1894. Such aview is being taken as the acquiredland in question was admittedlyundevelopedand therefore,adoption ofDDA auctionrates or L&DO rates is not permissiblein view ofthe dictum of the Apex Court in Lai Chanel (supra), which has been quoted with approval by the Apex Court in its latest decision in Thakm Kuldeep Singh (supra).

¶17Regarding increase of 10% per annum over and above tlie mmiimiin indicativeprice fixed by Governmentof NCT of Dellii, the same cannot be assailed by tlie respondentas tlio ReferenceCourt has done so wliile relying upon decision of the Apex Court in Union of India V,. Haypat. (2009) 14 SCC 375. This Court finds that the •A.App. No, 421/2010&ConnectedAppealsofVillageMa.'iooclaliad Page 8 ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10% per annum while relyingupon the decisionin Harpat(supra).

¶18In the light of the fore-goingnarration,1find no infirmityin the impugnedJudgment in which fair compensation has been assessed in rcspectof the acquiredland in question.ReferenceCourt has rightlynot classified the acquired land in question into 'A' category and 'B' category, as Land AcquisitionCollector in 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,whileleavingthe partiesto bear their own costs. Registryis directedto remit the compensationamount, if any, depositedby eitherside with the RegistrarGeneral ofthisCourt, to the concerned Reference Court. [SUNILGAUR) JUDGE March 14, 2012 pkb No. 421/20,0 Appo.K,ofVillage

+ % IN THE HIGH COURT OF DELHI AT NEW DELHI LA.APP. 753/2010 UNION OF INDIA & ANR Through: versus Reserved on : February 08, 2012 Pronounced on : March 14, 2012 Appellant 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 SURESH PARSHAD @ HAM KISHAN Respondent Through: Mr.B.D.Sharma, Mr.S.K.Rout, Ms.Suldida Dhamija and Mr.B.K.Routray, Advocates (Relating to Notification No. F.7/60/2001/L&B/LAyMRTS(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