UOI v. Ram Dayal Rawal & Anr

ORDER

14.03.2012 For orders see LA.APP.421/2010, titled as Suresh Prasad alias Hari Kishan V5. Union ofIndia & Anr. March 14, 2012 pkb flL 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 : February 08,:2012 Pronounced on ; March 14, 2012 LA.APP.421/2010-(VILLAGEMASOODABAD) SURl^SHPRASADalias HARl KISFIAN Appellant Through: Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Sukhda Dhainija and Mr.B.K.Routray, Advocates versus UNION OF TNDIA & ANR. Through: Respondents Mr.SanJay Poddar, Senior Advocate with Mr.SanJay Pathak, .iVls.K.Kiran Pathak,Mr.SuryaNath Pandey, Mr.YceshuJain and Ms.NavlinSwain, Advocates for LAC/UOI LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App, No. LA.App. No. LA.App. No. LA.App. No. FA.App. No. LA.y\pp.No. 1 421/2010 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. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. 1A.App.No.l 441/2010 444/2010 456/2010 459/2010 463/2010 467/2010 470/2010 580/2010 585/2010 013/2010 I.A.App. No. LA.App. No. I.A.App, No. LA.App. No. IA. App. No. LA.App. No. LA.App. No. LA.App. No.

1.A.App.No.! I.A.App. No. 442/2010 446/2010 457/2010 460/2010 464/2010 468/2010 47-172010 583/20! 0 01 l/20!() 12/2012 AND APPEALSFILED BY UNION 0I< INDIA LA.App.No. 746/2010 LA.App.No. 59/2012 l.A.App.No. 710/2011 LA.App.No. 747/2010 LA.App.No. 748/2010 LA.App.No. 749/2010 LA.App.No. 751/2010 LA.App.No. 753/2010 LA.App.No 754/9010 l.A-App,No. 421/2010&ConnectedAppealsofVillageMasoodabfld' Page "A LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. IA.App. No' 755/2010 LA.App. No. 756/2010 859/2010 LA.App. No. 860/2010 862/2010

1.A.App.No. 863/2010 866/2010 LA.'App.No. 867/2010 869/2010 I.A.App. No. 267/2011 21/2012 LA.App. No. 56/2012 LA.App. No. 858/2010 LA.App. No. 861/2010 r.A.App. No. 865/2010 I.A.App. No. 868/2010 LA.App. No. 752/2010 (Relating to NotificationNo. F.7/60/2001/L&B/LA/MRTS(S/W)/7674 of 05.08.2003issued under Section4 of the Land AcquisitionAct, 1894 "& Award No. 5/2005-06of VillageMasoodabad, Delhi) CORAM: BON'BLE MR. JUSTICE SUNIL GAUR ORDER

14.03.2012

¶1Ihm" 'Najafgarh Depot, MRTS Project', 610 liighas and 13 biswas ol" land of Village Masoodabad was acquired vide Notificationof 5^'^ August, 2003 under Section 4 of the l.and Acquisition Act, 1894 which was followed by Notificationof 8"' August, 2003 under Section6 of the Land Acquisition Act, 1894 resulting in passing of Award No.5/2005-06 granting compensation at 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 rcfcrence sought by the claimants, interest @10% per annum was granted by the Reference Court for the period of two years, i.e., Ifom the date of fixing of the minimum agricultural price upto the date of Notification, i.e., compensation amount stood enhanced to Rs. 18,84,000 per acre for the acquired land in question. •

¶3In the instant appeals, further enhancement of Rs.50 lacs per acre is sought by the claimants, whereas the respondent in their appeals have sought setting aside of the impugned order of the Reference Court and restoration of the Award. Since the grounds urged in these appeals is I,A.App. No. 421/2010 & Ccnnecled Appeals of Village Ma.soodabad I'age 2 m common, therefore, by this common order, these appeals are being disposed of.

¶4On behalf of the appellants/claimants,it is urged that the learned Reference Court has wrongly treated acquired lands as agricultural land and did not appreciate the potentiality of the acquired land as building site and assessment of the compensation in respect of the acquired land ought to have been made on the basis of the average auction rate of residential and commercial plots in Dwarka and the rates charged by the DDA while allotting alternative plots is a valid basis to arrive at true market value of the acquired land in question.

¶5rXiring the course of" hearing, it was pointed out by learned counsel for the appellants/claimants that Village Masoodabad was urbanized in the year 1963 and zonal development plan was prepared by Delhi Development Authority in the year 1974 and the acquisition of the land in question was for the proposed residential purpose. Much rcliancc was placed upon Award (Ex.PW-1/3)pertainingto Village Mangolpur Khurd and Award (Ex.PW-lM) of Village Mohammadpur Munirka of the [.and Acquisition Collector, wherein compensation was assessed while taking into consideration the l.&DO rates. It is pointed out that some parcel of acquired land abuts the main Delhi-Najafgarh metalled road and in the adjoining Village Nangli Sakrawati, there are industries and Najafgarh Industrial Area is in the vicinity.

¶6According to the learned counscl for the appellants/claimants, the best piece of evidence, i.e. allotment of land in Village Masoodabad and Najafgarhby DDA to Delhi .lal Board at the rate of Rs.20 lacs per acre in the year 1993 has been illegallydiscarded by the Reference Court. Reliance is placed upon the decisions reported in Tindey & Ors. Vs. Union ofIndia & Anr, 2000(54)DRJ(DB) 384; P.N.Singhvs. Union of LA.App. Mo. 421/2010&ConnectedAppealsofVillageMasoodabad Page .3 India, 1997 I AD (Del) 83; Hari Chand ta". Union of India, 91 (2001) DT/r 602; Delhi Development Authority V5. Land Acquisition Collector & Ors., 130(2006) DT 1(DB); Atma Singh (died) through LRs vs. State, of Haryana & Anr., AIR 2008 SC ,709; Mahabir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors.,

(1987) 1 SCC 587; Thakur Kuldeep Singh (D) Thr. L.R. & Ors vs. Union of India & Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs & Ors. vs. Union of India & Anr., 2004 VllT AD (SC) 37; Om Prakash va". State of Haryana & Ors, 201 1 IV AD (SC) 382; Sagunthala (dead) through LRs kv. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thirthkar rv. State of Maharashtra, AIR 2009 SC 2238, to assert that the compensationclaimed in these appealsisjust and reasonable.

¶7On behalf of the respondents,it was asserted by learned Senior Counsel for the respondentsthat adoptionof the auction rates of DDA or L&DO rates in respectof agriculturalland stands negated by the Apex Court in decision in Lai Chand Union ofIndia andAnr., (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 question continuedto be used as agriculturalland and therefore, instances of Village Mangolpur Khurd and Village N4ohammadpurMunirkaare ol no avail and the instanceof allotmentof land by DDA in favour of Delhi Jal Board cannot be treated to be representativepriceofthe lands in the vicinityas the evidenceis lacking regarding said instances to be comparablefor determiningthe market value ol the land in question.Reliancewas placed upon decisionof the Apex Court in Satpal&Ors. Vs. UnionofIndia, (1997) I1SCC 423 to assertthat if in a short period there is asharp increase in price,, than Ihe usual prevalenttrend in the market,such an instancecannot be taken as -A.App.No. 421/2010&ConnectedAppealsofVillageMasoodal)ad Pag(, .-r realistic price unless and until the reasons for such sharp ris^^re explained and there is no explanation to justify the adoption of Delhi Jal Board instance to determine the liiarket 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 til! its acquisition. It is asserted that doing away of classification of acquired lands in question by Reference Courl 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 V5. 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 Kitriakose v. Indian Oil Corpn. Ltd.,

(200J) 7 SCC 650, it should satisfy thefactors, inter alia.

(1) the sale must, he 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) LA.App. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 5 the land covered by the sale must be in the vlcinUyof the • acquired land; (4) the land covered by the sale must he ' similarto the acquiredland; and (5) size of the plot of the land covered by the sale be comparable to the acquired land. The sales instancesshouldpreferablybe closestto the date of the notificationas then alone it would satisfy the touchstone of the principles contemplatedunder Section 23 of the Act, as held in Kanwar Singh v. Union of India

(1998)8 see 136." 1I. Having heard learned counsel for the parties in these mattersand-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 appelJants/claimantshave been successfulin dischargingthis burden or not.

¶12No doubt, puipose for which the acquisition,is made is an miportant factor, but the question as to whether the acquired land has potential value or not, is primarily one of feet 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, possibilityol theirilirtherextensionand 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 1fmd that there is hardly any evidence regardingthe topographyof the area adjoiningthe acquired land mquestionand the evidenceled regardingthe aks shizra (Hx.PW-2/]) of this villagedoes not throw any light on this vital aspect, except that the evidence led to prove this documentadversely rcHects that on the easternside of VillageMasoodahacfthere is Najafgarhdrain, which lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 6 m -f) instead of enhancingthe potentiality,rather diminishesit. The witness who was got examined to prove the ah Mzra of Village NangJ,. Sakra^ati(F,x.PW-4/i)concedesthatthe ^netalledroad betweenVdlage Nangh Salaawaliand Village MmoockAadis not reflected in the afa Mzra.Evidenceofthis witness(PW-4)insteadofadvancingthe case ot the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredlandin question. Thereis no evidenceto establishthe comparabilityofthe acquired landsunderAward(Ex.PW-1/3)pertainiirgto VillageMangolpurKhurd and underAward (Ex.PW-1/4)ofVillageMohammadpurMmirkawith the acquiredland in question.Rather,as per evidenceof the concerned official (PW-iO), Award (Ex.PW-lO/l)pertainedto West Pate! Nagar for Metro Project.'Thus, in the considered opinion of this Court, ReferenceCourthas rightlyexcludedtlie aforesaidAwards(ExPW-1/3 &Ex.PW-1/4) to determinethe fair marketvalueofthe acquired,land m question.Selfservingdepositionof claimantsregardingpotentialityof acquired lands in question,in the absenceof corroborativeevidence,is not enough to return positivefindingon this crucialaspect,particularly in view ofthe fact that evidenceregardingindustriesbeingthere in the vicinityofacquiredlands is lacking.

¶14So fer as the DelhiJal Boardinstance(Ex.PW-4/1)is concerned, 1find that even its comparabilitywith acquired land in questionis not establishedas the witness (PW-5) who has deposed mrespect 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 comein evidenceofthe appellants./claimantsthattheie is no Governmenihospitalor collegein VillageMasoodabadand the evidence ..App.No. 421/2010&ConnectedAppealsofVillageMasoodabad ^ '• regarding the acquired land in question being surrounded by developed colonies is lacking. In the face of sUch deficient evidence, there is no scope for enhancement of compensation in 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/claimants have to remain content with the assessment of compensation on the basis of the indicative price of the agricultural land by Government of NCT of Delhi as undisputedly, the acquhed land in question were being used for agricultural purpose at the time of its acquisition.

¶16Upon scrutiny of the evidence. on record, it becomes quite apparent that despite Village A4asoodcibad being declared as urban, the acquired land in question were being used for agricultural purpose by the appellants/claimants and so, adoption of indicative price 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 Notification under Section 4 of the Land Acquisition Act, 1894. Sucli.a view is being taken as the acquired land in question was admittedly undeveloped and therefore, adoption of DDA auction rates or L&DO rates is not permissible in viev^ 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 Thakur Kuldeep Singh (supra).

¶17Regarding increase of 10% per annum over and above the minimum indicative price fixed by Government of NCf of Delhi,, the same cannot be assailed by the respondent as the Reference Court has done so while relying upon decision of the Apex Court in Union of India rv. Harpat,

(2009) 14 SCC

¶375This Court finds that the .A.App.No. 421/2010 &ConnectedAppealsofVillageMasoodabad Page 8 •a'" •it-RcferenccCourt was justifiedin grantingthe aforesaidincreaseof 10% per annum while relyingupon the decisionin Harpat(supra).

¶18In the light of the fore-goingnarration,I find no infirmityin the impugnedJudgment in which fair compensationhas been assessed in icspectof the 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 appealsofUnionofIndiaare dismissed,while leavingthe partiesto bear their own costs. Registryis directedto remit the compensationamount, if any, depositedby eitherside with the RegistrarGeneralofthis Court, to the concerned Reference Court. I^A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabaci p.,g^9 SIJNIL GAUR) JUDGE March 14, 2012 pkb

+ % IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 LA.APP. 755/2010 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 RAM DAYAL RAWAL & ANR. Respondent Through: 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