UOI v. Gopal Dass & 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 [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. A IN THE HIGH COURT OF DELHI AI NEW DELI!I Reserved on : February 08, 2012 Pronouneed on : March 14, 20! 2 J.A.APP.421/20J0(VH.LACE MASOODABAD) SURlvSnPRASAI)alias IJARI KISMAN Appellant Through: Mr.B.D.Sharma, Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B. K.Routray, Advocates versus UNION OV 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 (or LAC/UOI A.App. No A.App. No A.App. No A.App, No A.App. No A.App. No A.App. No A-.App. No A. App. No A.App.No. . 421/2010 . 443/2010 . 455/2010 . 458/2010 . 462/2010 . 465/2010 . 469/2010 . 478/2010 . 584/2010 1012/2010 AND l.A.App. I;A.App. LA.App. LA.App. LA.App. LA.App. LA.App. LA.App. LA.App. LA.App. No. 441/2010 No. 444/2010 No. 456/2010 No. 459/2010 No. 463/2010 No. 467/2010 No. 470/2010 No. 580/2010 No. 585/2010 No. 1013/2010 AND LA.App LA.App LA.App

1.A.App LA.App LA.App LA.App LA.App LA.App. LA.App. . No. 442/20 10 • No. 446/2010 . No. 457/2010 No. 460/2010 No. 464/2010 No. 468/2010-No. 471/2010 No. 583/2010 No.lOl 1/2010 No. 12/2012 APPL;ALS FILLD by union OF INDIA LA.App.No. 746/2010 LA.App.No. 59/2012 LA.App. No. 710/201I LA.App. No. 747/2010 LA.App.No. 748/2010 LA.App No 749/7010 i.A.App, No^ 751/2010 I.A.App,No. 753/2010 l.A.App.No, 754/2010 No. 421/20.10SConnoclccIAppc^iLsofVillHocMasoodalofi(i I'ago 1 LA.App. No. 755/2010 I.A.App. No. 859/2010 .A.App. No. 756/201(3 l.A.App. No. 858/20 .A.App. No~S6D72irnr LA.App. No. 861/2010 LA.App.No. 862/2010 LA.App.No. 863/2010 I.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 I.A.App.No. 267/2011 I.A.App, No. 752/2010 LA.App. NO.-21/2012 l.A.App. No. 56/2012 (Relating to Notification No. F.7/60/2001/L&B/r.A/MRTS(S/W)/7674 ol 05.08.2003issued under Section4 of the Land AcquisitionAct, 1894 & Award No. 5/2005-06of VillageMasoodabad,Delhi) CORAM: ^ HON'BI E MR. JUSTICE SUNIL GAUR ORDER %

14.03.2012

¶1Vor 'NajafgarhDepot, MKTS Project',610 bighas and 13 biswas of land o( Village Masoodabad was acquired vide Notificationof 5"' August, 2003 under Section4 of the Land AcquisitionAct, 1894 which was followed by Notilicationof 8"^ August, 2003 under Section 6 of the

1.and AcquisitionAct, 1894 resultingin passingofAward No.5/2005-06 grantingcompensafionat the rate of Rs.15.70 lacs per acre on the basis ''Tclicativcprice 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 grantedby the ReferenceCourt for the period oftwo years, -i.e., from the date of fixing of the minimum agriculturalprice upto the date ol 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 appeals have sought setting aside of the impugned order of the ReferenceCourt and restorationol the Award. Since the grounds urged in these appeals is LA.App. No. 421/2010&ConnectedAppealsofVillageMasoodabad © common, therefore, by this common order, these appeals arc being disposed of.

¶4On behalf of the appellants/claimants, it is urged that the learned Rclerence Court has wrongly treated acquired lands as agricultural land and did not appreciate the potentiality of the acquired land as building site and assessmentof the compensationin respectof the acquiredland ought to have been made on the basis of the average auction rate of residentialand commercialplots in Dwarkaand the rates chargedbythe DDA while allotting alternative plots is a valid basis to arrive at true market value of the acquired land in question.

¶5During the course of hearing, it was pointed out by learned counsel for the appellants/claimantsthat Village Masoodabad was urbanizedin the year 1963 and zonal developmentplan was preparedby Delhi DevelopmentAuthorityin the year 1974 and the acquisitionofthe land in questionwas lor the proposedresidentialpurpose.Much rcliancc was placed upon Award (lix.PW-l/3)pertainingto Village Mangolpur Khurd and Award (Rx.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 NajafgarhIndustrialArea is in the vicinity.

¶6Accordingto the learned counsel for the appellants/claimants,the best pieceofevidence,i.e. allotmentofland in Village Masoodabadand Najafgarhby DDA to Delhi Jal Board at the rate of Rs.20 lacs per acre mthe year 1993 has been illegallydiscarded by the Reference Court. Reliance is placed upon the decisions reported in Tindey & Ors. Vs. Union of India&Anr, 200()(54)DR.I(DB) 384;RKSinghvs. Unionof LA.App. No. 421/2010&ConnectedAppealsofVillagoMasoodabad ifl India, 1997 I AD (Del) 83; Hari Chand kv. Union of India, 9\ (2001) DL l 602; Delhi DevelopmentAuthority vs. Land Acquisition Collector & Ors., 130(2006)fTl" 1(DB);Atma Singh (died) through LRs vs. State of IIaryana cS Anr., AIR 2008 SC 709; Mahabir Prasad Santuka and Ors. Ks Collector, Cuttack and Ors., (1987) 1 SCC 587; Thakur Kuldeep Singh (D) Ihr. L.R. & Ors vs. Union of India & Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs & Ors. vs. Union of India & Anr., 2004 VIII AD (SC) 37; Om Prakash State of Haryana Ors, 20] 1 IV AD (SC) 382; Sagunthala(dead) through LRs vs. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray ritirthkar vs. State of Maharashtra, AIR 2009 SC 2238, to assert thai the compensalionclaimed in these appeals is just and reasonable.

¶7On behalfof the respondents,it was asserted by learned Senior Counsel for the respondentsthat adoptionof the auction rates of DDA or L&DO rates in respectol agriculturalland stands negated by the Apex Court in decision in Lai Chand rv. 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 aequiied land in questioncontinuedto be used as agriculturalland and therefore, instances of Village Mangolpur Khurd and Village MohammadpurMunirkaarc ol no avail and the instanceol'allotmentof land by DDA in favour ol Delhi .lal Board cannot be treated to be 1epiesentativeprice of the lands in the vicinityas the evidenceis lacking legaiding said instances to be comparable lor determiningthe market value ol the land in question. Reliance was placed upon decisionofthe Apex Court in Satpal&Ors. Vs. Union ofIndia, (1997) 11SCC 423 to assert that it in a shortperiod there is a sharp increasein price, than the usual prevalenttrend in the market, such an instancecannot be taken as ^A.App. No. 421/20]0&ConnectedAppealsofVillageMasoodabad Page4 realistic price unless and until tlie reasons for such sharp rise 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 determinethe true market value of the 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:- "Coinparable sales instcmces are the safest, methud for determining the market vahie of the acquired land and as laid down in Shaji Kurlakose v. Indian Oil Corpn. Ltd.,

(2001) 7 SCC 650, it should satisf}' thefactors, inter alia,

(1) the sale must he a genuine transaction; (2) the sale deed must have been executedat the time proximate to the date of issuanceof notificationimder Section 4 of the Act; (3) LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page5 .^r • . the land -coveredhy 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 the plot of the . land covered by the sale be comparable to the acquired land. The sales instancesshould,preferably 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 KanM'ar Singh v. Union of India,

(1998)8 see 136."

¶11Having licard learned counsel lor 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 successllilin dischargingthis burden or not.

¶12No doubt, purpose for which the acquisition is made is an important factor, 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, llie existing amenities like water, electricity, possibilityoftheir furtherextensionand the prospectsofdevelopmentin the area have to be taken into consideration.It has been so reiteratedbv ' the Apex Court in Afma Singh (supra). It is in this context, 1 have scrutinizedthe evidence on record and 1 Und that there is hardly any evidence regarding the topographyof the area adjoining the acquired land in questionand the evidenceled regardingthe ales shizra(Ex.PW-2/1) of this village does not throw any light on this vital aspect, except that the evidence led to prove this documentadversely reflects that on the easternside ofVillageMasoodabad,there is Najafgarhdrain, which l-A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page6 instead of enhancingthe potentiality,rather diminishesit. The witness who was got examined to prove the ah shizra of Village Nangh •sakrawati (P,x.PW-4/l)concedesthatthe metalledroad betweenVillage Nangli Sakrawati and Village Ma^oodabadis not reflected in the a/a Evidenceofthis witness(PW-4)insteadofadvancingthe case of the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredland in question. I3 Thereis no evidenceto establishthe comparabilityofthe acquired landsunder Award (rix.PW-1/3)pertainingto VillageMcmgolpvrKhurd and under Award (lix.PW-1/4)of Village MohammadpurMunh-ka with the acquired land in question.Rather,as per evidenceof the concerned official (PW-10), Award (Kx.PW-lO/l)pertained to West Patel Nagar for Metro Project. Thus, in the considered opinion of this Court, ReferenceCourthas rightlyexcludedthe aforesaidAwards(hx.PW-1/3 & Ex.PW-1/4)to determinethe fair marketvalueol the acquiredland in question.Selfservingdepositionof claimantsregardingpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is not enough to return positivefindingon this crucial aspect, particulaily in view of the fact that evidenceregardingindustriesbeing there in the vicinityofacquiredlands is lacking.

¶14So far as the DelhiJal Boardinstance(l-:x.PW-4/l)is concerned, "1find 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 relieduponthe DelhiJal Boardinstance(Ex.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthat there is no Governmenthospitalor collegein Villageh4asoodohadand the evidence .A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad m-3i.V, \r. regardingthe acquired land in question being surroundedby developed colonics 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. Maving failed to establish the potentiality of the acquired land in question, the appellants/claimants have to remain content with the assessment of compensation on the basis of the indicativeprice of the agriculturalland by Governmentof NCT of Delhi as undisputedly,the acquired land in question were being used for agriculturalpurposeat the time of its acquisition.

¶16Upon scrutiny of the evidence on record, it becomes quite apparentthat despite VillageMasoodabadbeing declared as urban, the acquiredland in questionwere beingused for agriculturalpurposeby the appellants/claimantsand so, adoption of indicativeprice of agricultural lands by Government ot 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,adoption of DDA 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 ThakurKuldeep 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 RefercnccCourt has done so while relying upon decision of the Apex Court in Union of India vs. Havpai. (2009) 14 SCC 375. This Court finds that the LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 8 ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10% pel annum while relyingupon the decisionin Harpat(supra).

¶18In the light of the fore-goingnarration,\ find no inllrmityin the impugnedJudgment 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 [.and 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 of this Court, to the concerned Reference Court. v.. ^"^TSlJNILGAIJR) .RIDGE March 14, 2012 pkb I^A-Api.No.421/2010 Appo,!.,of ,

+ % h IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 LA.APP. 756/2010 UOI ^ Appellant Through: Mr.SanjayPoddar,SeniorAdvocate with Mr.Sanjay Pathak, Ms.K.Kiran Pathak, Mr.Surya Nath Pandey, Mr.Yeeshu Jain and Ms.Navlin Swain, Advocates for LAC/UOI versus GOPAL DASS & ANR. Through: Respondent Mr.B.D.Sharma, Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates (Relating to NotificationNo. 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