UOI v. Narvada Devi & 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 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 ; Februaiy 08, 2012 Pronounced on : March 14, 2012 LA.APP.421/2010(VILLAGE MASOODABAD) SIJRP:SHPRASADaliasHARI KLSMAN 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.Surya.NalhPandcy, Mr.Yeeshu Jain and Ms.Navlin Swain, Advocates for LAC/UQI 1-A.App. No. r.A.App. No. I.A.App. No. LA.App. No. I.A.App. No. r.A.App. No. LA.App. No. LA.App. No. [.A.App. No. J.A.App.No. I 421/2010 443/2010 455/2010 458/2010 462/2010 465/20,10 469/2010 478/2010 584/2010 012/2010 AND LA.App. No. LA.App. No. LA.App. No. LA.App. No. l.A.App. No. LA.App. No. LA.App. No. LA.App. No.

1.A.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. No. r.A.App. No. LA.App. No. r.A.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. r.A.App.No. 1 LA.App. No. 442/2010 446/2010 457/2010 460/201 0 464/2010 468/201 0 471/2010 583/2010 01 1/2010 12/2012 AND APPI'ALS FILLD by UNION OF INDIA I'A No. 59/2012 1,A.App.No. 710/20Ji -A.App.No. 747/2010 LA.App.No. 748/2010 LA.App.No. 74Q/?n10 I.A.App.No. 751/2010 LA.App.No. 753/2010(^T^pp.No 754«(M^ No. 421/2010&ConnectedAppeal.sofVillageMasooclabad Page 1 / 6 LA.App. No. 755/2010 LA.App. No. 756/201 0 LA.App. No. 858/2010 l.A.App. No. 859/2010 I.A.App. No. 860/2010 IA.App. No. 861/2010 LA.App. No. 862/2010 LA.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.7/60/2001/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

¶1Lor 'NajafgarhDepot, h4RTS Project\ 610 bighas and 13' biswas of 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 of the Land AcquisitionAct, 1894 resultingin passingofAward No.5/2005-06 giantingcompensationat the rate of Rs.15.70 lacs per acre on the basis of indicativeprice fixed by the Governmentof NCT of Delhi for the agricultural lands in Delhi.

¶2hi the reference sought by the claimants, interest @10% per annum was granted by the ReferenceCourt for the period of two yeai's, i.e., from the date ol 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. -5. In the instantappeals,furtherenhancementof Rs.50 lacs per acre is soughtby the claimants,whereasthe respondentin theirappealshave sought setting aside ofthe impugned order ofthe ReferenceCourt and restorationof the Award. Since the grounds urged in these appeals is I-A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad I'age 2 I common, therefore, by this common order, these appeals are being disposed of.

¶4On behalf of the appellants/clainiants, 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 Dwarkaand 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 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 I.and Acquisition Collector, wherein compensation was assessed while taking into considerationthe L.&DO rates, ft is pointed out that some parcel of acquired land abuts the'main Delhi-Najafgarhmetalled load and in the adjoiningVillageNangli Sakrawati,there are industries and NajafgarhIndustrialArea is in the vicinity.

¶6Accordingto the learned counsel for the appellants/claimants,the best piece ofevidence,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 &Ors. Kv. UnionofIndia&Anr, 2000(54)DRJ(DB) 384; P.N.Singhvs. Unionof -A.App.No. 421/2010&ConnectedAppealsofVillagc'^oodabTr"™^'"""'^ tlr-.. i •• • India, 1997 I AD (Del) 83; Hari Cliand vs. Union of India, 91 (2001) DL r 602; Delhi DevelopmentAuthority vs. Land AcquisitionCollector & Ors., 130(2006)D'r \(DB)\AtmaSingh (died) through LRs State oj Haryana & Anr., AIR 2008 SC 709; Mahahir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors., (1987) 1 SCC 587; Thakur Kuldeep Singh (D) Thr. L.R. & Ors kv. 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 vs. StateofHaryana& Ors, 201 1 IV AD (SC) 382; Sagunthala(dead) through LRs vs. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thirthkarvs. State of Maharashtra,AIR 2009 SC 2238, to assert that the compensationclaimed in these appealsis justand reasonable.

¶7On behalfof the respondents,it was asserted by learned Senior Counselfor the respondentsthat adoptionofthe auctionrates ofDDA or L&DO rates mrespectof agriculturalland stands negated by the Apex Court in decisionin Lai Chandvs. Union ofIndiaandAnr., (2009) 15 S(X 769. It was also urged by learned counsel for the respondentsthat despite Village Masoodabad being declared to be urbanized, the acquired land in questioncontinued to be used as agriculturalland and thcrciore, mstances 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 representativepricc ot the lands in the vicinityas the evidenceis lacking regarding said instancesto be comparablefor determiningthe market value of the land in question.Reliancewas placedupon decisionofthe Apex CourtmSatpal&Ors. Vs. UnionofIndia, (1997) 11 SCC 423 to assertthat if in ashortperiodthere 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 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. Tt 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 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 v. 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 executed at the time proximate to the date of issuance of notification under Section 4 of the Act; (3) :.A,App.No. 421/2010 &ConnectedAppealsofVillageMasoodabad Page 5 A / 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 plot 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 India,

(1998)8 see 136." I 1. Having heard learned counsel for the parties in these matters and upon perusal of the impugned judgment, evidence on record and the decisions cited, 1 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 reasonablycapablc of being put and proximity to residential, commercial or industrial or institutional area, 'fhe 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 1 find that there is hardly any evidence regarding the topographyof 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, except that the evidence led to prove this document adversely rcHects that on the easternside of VillageMasoodabad,there is Najafgarhdrain, which LA.App. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 6 v^"-' IS., insteadof enhancingthe potentiality,rather diminishesit. The witness who was got examined to prove the afa .Mzra of Village Nangh Sakrc^ati(F,x.PW-4/l)eoneedesthatthe metalledroad betweenVillage Nangli Sakrawatiand Village Masoodabadis not reflected in the aks shizra.Evidenceofthis witness(PW-4)insteadofadvancingthe caseof the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredland in question. 13, There is no evidenceto establishthe comparabilityofthe acquired landsunderAward(Ex.PW-1/3)pertainingto VillageMangolpwKhurd and underAward (Ex.PW-1/4)ofVillageMohammadpurMunirkawith the acquiredland in question.Rather,as per evidenceofthe concerned official (PW-10), Award (Ex,PW-10/l)pertainedto West Patel Nagar for Metro Project, Thus, in the considered opinion of this Court, ReferenceCourthas rightlyexcludedthe aforesaidAwards (Ex.PW-l/3 &Ex,PW-l/4)to determinethe fair maricetvalueofthe acquiredland in question,-Selfservingdepositionof claimantsregardingpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is nol enough to return positivelindingon this crucialaspect,particularly in view of the fact that evidenceregardingindustriesbeing there in tiie vicinityofacquiredlands is lacking.

¶14So far as the DelhiJal Boardinstance(Ex.PW-4/1)is concerned, ^ Ifind that even its comparabilitywith acquiredland in questionis 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 reliedupontheDelhiJalBoardinstance(Ex.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthat there is no Governmenthospitalor collegein VillageMasoodabadand the evidence l,A.App.No, 421/2010&ConnectedAppealsofVillageMasoodabad '7

¶13regardingthe acquiredland in question being surroundedby developed colonies is lacking. In the face of such deficient evidence, 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 mdicativeprice of the agriculturalland by Governmentof NCT 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/clannantsand so, adoption of indicativeprice of agricultural lands by Government of NCT 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 beingtaken as the acquiredland in question was admittedlyundevelopedand therefore,adoption ofDDA auctionrates orL&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 mmimum mdicativeprice 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&ConnectedAppealsofVillageMa.soodabad Page 8 -X .f' •*. ReferenceCourt was justifiedin grantingthe aforesaid increaseof 10% per annum whilerelyingupon the decisionin Harpat(supra).

¶18In the light of the fore-goingnarration,I find no inllrmityin the impugned judgment m which ftiir compensationhas been assessed in icsp.cctof the acquired land 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 appeilants/claimantsas well as appealsofUnionofIndiaare dismissed,whileleavingthe partiesto bear Iheir own costs. Registiyis directed to remit the compensationamount, ifany, depositedby eitherside with the RegistrarGeneralof this Court, to the concerned Reference Court. c ^•"•'TSUNTL GAUR) , JUDGE March 14,2012 pkb l-A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 9

+ % IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 LA.APP. 754/2010 UOI Appellant Through; 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 versus NARVADA DEVI & ANR. Through: Respondent Mr.B.D.Sharma, Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates (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