Union of India v. Rajeev Locahn & Anr

ORDER

14.03.2012 For orders see LA.APP.421/2010, titled as Suresh Prasad alias Hari Kishan vs. Union ofIndia & Anr. 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. IN THE HIGH COUR1 OF DELHI AF NEW DELHI Reservedon : February08, 2012 Pronounced on : March 14, 2012 PA,APP.42]/20I0(VH.LAGEMASOODABAD) SUIII^SIIPRASADalias IIARJ KISIIAN Appellant Through: Mr.B.D.Sharma,Mr.S.K.Roul, Ms.Sukhda Dhamija and Mr.B.K.RoLIIray, AdVocates versus UNION OI'MNDIA&ANR. Through: Respondents Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Ms.K.Kiran Pathak,Mr.SuryaNath Pandey, Mr.YeeshuJain and Ms.NavlinSwain, Advocates for LAC/UOI

1.A./Vpp. No. LA..App. No. 1-A.App. No. LA.App. No. LA.App. No. i.A.App. No. LA.App. No. I.A.App. No. I.A.App. N(x i -A.App.No. I 421/2010 443/2010 455/2010 458/2010 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. I.A.App. No. LA.App. No. 1-A.App. No. LA..A,pp. No. LA.App. No. LA.App.No. 1 441/2010 444/20! 0 456/2010 459/2010 463/2010 467/2010 470/2010 580/2010 585/2010 013/201 0 I.A.App. No.

1.A.App. No. LA.App. No. LA.App. No. I.A.App. No. L.A.App. No. LA,App..No. LA.App. No. 1-A.App.No. 1 LA.App. No. 442/20 !0 446/20! 0 457/2010 460/2010 464/2010 468/2010 471/2010 583/2010 01 1/2010 12/2012 AND APPEAJ.SFILED BY UNION OF INDIA LA.App.No. 746/2010 LA.App.No. 59/2012 FA.App.No. 710/2011 LA.App.No. 747/2010 LA.App,No. 748/2010 LA.App.No 749/2010 l-A.App.No. 751/2010 LA.App.No. 753/2010 [.A.App.No. 754/2010 l.A App, No. 421/2010&ConnectedAppealsofVillagelMa,soodaba7 agjjgaKaaviiiiiiiii^Miwi mi l^a.qe 1 j/ 7- . ' •/ I.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 LA.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. 21/20L2 LA.App.No. 56/2012 (Relating to Notification No. F.7/60/2001/L&B/LA/MR'fS(S/W)/76/4 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 SIJNIL GAUR ORDER %

14.03.2012

¶1For 'NqjqfgarhDepot, MKTS Project', 610 bighas and 13 biswas of land of Village Masoodabad was acquired vide Notificationof 5"' August, 2003 under Section 4 of the Land Acquisition Act, 1894 which was followed by Notificationof 8"' August, 2003 under Section 6 of tbie 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 price 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 Reference Court for the period of two years, i.e., from 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 LA.App. No. 421/2010 & Connected Appeals of Village Masoodabad 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 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 marlcet value of the acquired land in question.

¶5During 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 reliance was placed upon Award (Ex.PW-1/3)pertainingto Village Mangolpur Khurd and Award (Ex.PW-1/4) of Village Mohammadpur Munirka of the T.and 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 adjoiningVillage Nangli Sakrawati, there are industries and Najafgarh Industrial Area 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 rate of Rs.20 lacs per acre in the year 1993 has been illegally discarded by the Reference Court. Reliance is placed upon the decisions reported in Tiitdey & Ors. Vs. Union ofIndia&Anv, 2000(54)DRJ(DB) 384; P.N.Singhvs. Unionof -A.App. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 3 India, 1997 I AD (Del) 83; Harl CItand vs. Union of India, 91 (2001) I3f/r 602; Delhi Development Authority kv. Land Acquisition Collector & Ors., 130(2006) DT I(DB); Atma Singh (died) through LRs rv. 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 v.v. Union of India & Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs & Ors. rs. Union of India & Anr., 2004 VlII AD (SC) 37; Om Prakash State of Haryana & Ors, 201 I IV AD (SC) 382; Sagunthala (dead) through LRs vs. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thirthkar vs. State of Maharashtra, AIR 2009 SC 2238, to assert that the compensation claimed in these appeals isjust and reasonable.

¶7On behalf of the respondents, it was asserted by learned Senior Counsel for the respondents that adoption of the auction rates of DDA or l.&DO rates in rcspect of agriculturalland stands negated by the Apex Court in decision in Lai Chand vs. Union of India and Anr., (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 agricultural land and therefore, instances of Village Mangolpur Khurd and Village Mohammadpur Munirka are of no avail and the instance of allotment of land by DDA in favour of Delhi Jal Board cannot be treated to be representativeprice of the lands in the vicinityas the evidenceis lacking regarding said instances to be comparable for determining the market value of the land in question. Reliancewas placed upon decision of,the Apex Court in Satpal & Ors. Vs. Union of India, (1997) 11 SCC 423 to assertthat li in a short period there is a sharp increasein price, than the usual prevalent trend in the market, such an msiancc cannot be taken as -A.App. No. &ConnectedAppealsofVillageMasoodabad Page 4 gs I 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 instantmatters, there is no evidenceshowing 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 impugnedJudgment 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:- "Comparable sales instances are the safest methodfor 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,

(I) the sale must be a genuine transaction: (2) the sale deed must have been executed at the tim.e proximate to the date of issuance of notificationunder Section 4 of the Act; (3) I.A.App.No. 421/2010 &ConnectedAppealsofVillageMasoodabad Page 5 the land coveredby the sale must be in the vicinityof the acquired land; (4) the land covered by the sale nuisl be similarto the acquiredland: and (5) size ofthe plot ofthe land covered by the sale be comparable to the acquired land. The sales instancesshould,preferablybe closestto the date of the notificationas then alone it would satisfy the touchstoneof the principlescontemplatedunderSection23 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 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 whcthci-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 lo whether the acquired land has potential value or not, is primarily one of l^ct 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 js in this context, 1 have scrutinizedthe evidence on record and I 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) of this village does not throw any light on this vital aspect, except that the evidence led to prove this document adversely reflects that on the eastern side ol Village Masood.abad,there is Najalgarhdrain, which IAApp. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page6 /• instead of enhancingthe potentiahty.rather diminishesit. The witness who was got examined to prove the ak.s slnzra of ViUage Nangh Sakrawati(l-x.PW-4/l)concedestliatthe metalledroad betweenVillage Nangli Sakrawatiand Village Masoodabadis not reflected in the afc shm-a. Evidenceofthis witness(PW-4)insteadofadvancingthe case of the appellants/claimants regarding the potentiality, rcduees the potentiality ofthe acquiredland in question.

¶13There is no evidenceto establishthe comparabilityofthe acquired landsunderAward(Ex.PW-1/3)pertainingto VillageMangolpurKhwd and under Award (Ex.PW-1/4)ofVillageMohammadpurMunirkawith the acquired land in question.Rather, as per evidenceof the concerned official (PW-10), Award (Ex.PW-lO/l)pertained to West Patcl Nagar for Metro Project. Thus, in the considered opinion of this Court, ReferenceCourt has rightlyexcludedthe aforesaidAwards(Ex.PW-1/3 &Kx.PW-1/4)to determinethe fair marketvalueofthe acquiredland ui question.Selfseeingdepositionof claimantsregardingpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is not enoughto return positivefindingon this crucial aspect,particularly in view ofthe fact that evidenceregardingindustriesbeing there in the vicinityofacquiredlands is lacking.

¶14So far as the DelhiJal Boardinstance(Bx.PW-4/1)is concerned, I find that even its comparabilitywith acquired land in question is not establishedas the witness (PW-5) who has deposed in respcct of this transactionhas concededthat he is not able to tell the distance from the said land to the land in question.Therefore,ReferenceCourt has rightly not reliedupon the DelhiJal Boardinstance(Ex.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthat there is no Governmenthospitalor collegein VillageMasoodabadand the evidence lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page7 •f regarding the acquired land in question being surrounded by developed colonics 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 acquired land in question vv'ere 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 Masooclabad being declared as urban, the acquired land in question were beihg used for agricultural purpose by the appellants/claimants and so, adoption of indicative price of agricultural lands by Government of NC T 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. Such 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 view of the dictum of the Apex Court in Lai Chanel (supra), which has been quoted with approval by the Apex Court in its latest decision in TItakur Kiildeep Singh (supra).

¶17Regarding increase of 10% per annum over and above the minimum indicative price fixed by Government of NC'f 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 V5. Harpai,

(2009) 14 SCC

¶375Hiis Court finds that the LA.App. No. 421/2010 &ConnectedAppealsofVillageMasoodabad Page 8 V •r ReferenceCourt was justifiedin grantingthe per annum while relyingupon the decisionin Harpat(supra). IS. In the light of the fore-goingnarration, impugned judgment in which fair compensat aforesaid increase of 10% I find no infirmity in the ion has been assessed in icspectofthe acquiredland in question.RefenjnceCourt has rightlynot classified the acquired land in question int category, as Land Acquisition Collector in th unequivocally stated that no classification requiredto be done as the acquiredland is leve

¶19Consequentially,the appealsofthe appe appealsofUnion of India are dismissed,while their own costs. Registry is directed to remit tl il any, depositedby eitherside with the Regist to the concerned Reference Court. March 14, 2012 pkb U,A|,p.No. 421/2010 &Cor,netted 3 'A' category and 'B' c Award in question has yf the acquired land is ed. Iants/claim ants as well as caving the parties to bear le compensation amount, •ar General of this Court, NIL GAIJR) JUDGE Page 9

% IN THE HIGH COURT OF DELHI AT NEW DELHI LA.APP. 861/2010 UNION OF INDIA Through: versus RAJEEV LOCAHN & ANR Through: 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 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