Union of India v. Mukesh Kumar & 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 fIL 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 HIGW COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 I.y\.APP.421/2010 (VILLAGEMASOODABAD) SlJRliSHPRASADaliasHARI KISHAN • Appellant Through: Mr.B.D.Sharma, Mr.S.K.Roul, Ms.Sukhda Dhamija and. Mr.B.K.Routray, v(\,dvocates versus UNION INDIA & 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 I..y\C/U01 kA.App. No. I.A.App. No. f.A.App. No. LA.App. No. 1vX.App. No.

1.A.App. No. i-A.App. No. L.A.App. No. l-A.App. No. kA.App.No. 1 421/2010 443/2010 455/2010 458/201.0 462/2010 465/20,10 469/2010 478/2010 584/2010 012/2010 AND LA.App. No. I.A.App. No. I.,A-App. No. LA..A.pp. No. I.A.App. No. LA.App. No. 1-A.App. No. LA.App. No, LA.App. No. LA.App.No, 1 441/2010 444/201 0 456/2010 459/2010 463/2010 467/2010 470/2010 580/2010 585/2010 013/2010 LA.App. No. r.,A.App. No. l.A.yVpp.No,

1.A.App. No. LA..App. No. l-/.A.App.No. I-A.App. No. LA.App. No.

1.A.App.No. 1 LA.App. No, 442/201 0 •^(46/2010 457/2010 460/201 0 464/2010 468/2010 471/2010 583/2010 011/2010 12/2012 AND APPEy\r.SFILEDBY LJNIONOF INDIA LA.App.No. 746/2010 LA.y\pp.No. 59/2012 I.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. 754/2010 Page 1 i.A.App,No. 42 1/20]0&ConnectedAppealsofVinagcrMa.soodJl^^ .. .-y LA.App.No. 755/2010 LA.A^p.No. 756/2010 LA.App.No. 858/2010 TAApp No 859/2010 UkApp.No. 860/2010 LA.App.No. 861/2010, LA Add. No. 862/20IO.WTa.App.No. 863/2010 LA.App.No. 865/2010 lXAppi;^^^6/2010 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/VvO/7674 of05.08.2003.issued under Section4 ofthe Land AcquisitionAct, 1894 & AwardNo. 5/2005-06ofVillage Masoodabad,Delhi) COl^M: g) MON'BLE MR. JUSTICE SUNIL GAUR O R PER %

14.03.2012

¶1For 'NajafgarhDepot, MRTS Project',610 bighas and 1j> biswas of land of Village Masoodabad was acquired vide Notificationof 5"' August, 2003 under Secfion4 ofthe l.,and 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.15.70lacs per acrc on the basis of indicativeprice fixed by the Governmentof NCI oi Delhi lor 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 instant appeals, further enhancement of Rs.50 lacs per acre is sought by the claimants,whereasthe respondentin their appeals have sought setting aside of the impugnedorder of the Reference Court and restoration of the Award. Sincc the grounds urged in these appeals is LA.App. No. 421/2010 &Connected AppealsofVillageMasoodabad Page 2 jo T • n 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 oFthe 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.

¶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 rcliance was placed upon Award (rix.PW-1/3)pertaining to Village Mangolpur Khurd and Award (Ex.PW-1/4) of Village Mohammadpur Munirka of the I.and Acquisition Collector, wherein compensation was assessed while taking into consideration the L&DO rates. It is pointed out that some pcircel 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 counsel for the appellants/claimants, the best piece of evidence, i.e. allotment of land in Village Masoodabad and Najalgarh by DDA to Delhi Jal Board at the rate of Rs.2() lacs per acre in the year 1993 has been illegally discarded 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 •A.App, No. 421/2010&ConnectedAppealsofVillagoMa.soodabad Page 3 • J^r • India, 1997 I AD (Del) 83; Hari C/iand vs. Union of India, 9] (200] ) DL r 602; Delhi Development Authority rv. Land Acquisition Collector & Ors., 130(2006) D T 1(DB); Atma Sinf^h (died) through LRs v.v. State of Haryana & Anr., AIR 2008 SC 709; Mahahir Prasad Santuka and Ors. Kv Collector, Cuttack and Ors.,

(1987) 1 SCC 5S7; Thakur Kuldeep Singh (D) Thr. L.R. Ors ra. Union of India & Ors., AIR 2010 SC 1272; Oni Prakash (D) by LRs & Ors. vs. Union of India & Anr., 2004 VIII AD (SC) 37; Om Prakash State of Haryana & Ors, 201 1 IV AD (SC) 382; Sagunthala (dead) through LRs v.9. 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 compensationclaimed in these appealsisjust and reasonable.

¶7On behalf of the respondents, it was asserted by learned Senior Counsel (brthe respondentsthat adoption of the auction rates of I)DA or L&DO rates in rcspectof agriculturalland stands negated by the Apex Court in decision in Lai Chand rv. 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 agriculturalland and therefore, instances of Village Mangolpur Khurd and Village MohammadpurMunirkaare ot no avail and the instanceof allotmentof land by DDA in favour of Delhi Jal Board cannot be treated to be 1epicsentativepriceofthe lands in the vicinityas the evidenceis lacking regarding said instances to be comparablefor determiningthe market value ol the land in question.Reliancewas placed upon decisionofthe Apex Court mSatpal&Ors. Vs. Union ofIndia, (1997) 11SCC 423 to assertthat if in a short period there is a sharp increase in price, than the usual pievalenttrend in the market,such an instancecannot be taken as l-A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad "PagM 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, enliancement 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 vs. 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 doM>n 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) I.A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 5 Mi-fAi'-i h the land coveredby the sale must be in the vicinityof the acquired,land; (4) the land covered by the sale must he similarto the acquiredland: and (5) size ofthe plot ofthe land covered by the sale he comparable to the acquired land. The sales instancesshouldpreferablyhe closestto the date of the notificationas then alone it would satisfy the touchstoneof the principlescontemplatedunder Section23 of the Act, as held, in Kanwar Singh v. Union of India.

(1998)8see 136.'' ^ ' . '

¶11Having heard learned counsel for the parties in these mattersand perusal of the impugned judgment, evidence on record and the •u '' . • 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 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 lo 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, possibilityoftheirfurtherextensionand the prospectsofdevelopmentin the area have to be taken into consideration.It has been so reiteratedby the Apex Court mAtma Singh (supra). It is in this context, J have scrutinizedthe evidence on record and I llnd that there is hardly any evidence regarding the topographyof the area adjoining the acquired land mquestionand the evidence led regardingthe aks shizra (Ex.PW-2/1) of this villagedoes not throw any light on this vital aspcet, except that the evidence led to prove this documentadversely reflects that on the easternside ol Village Masoodabcuilthere is Najatgarhdrain, which l-A.App.No. 421/2010&ConnectedAppealsof Vilk,geMisoodabad ' "/ J insteadof enhancingthe potentiality,rather diminishesit. The witness who was ,ot examined to prove the shi.ra of Village Nan.l, Sakra^an(l.x.PW-4/1)eoneedesthat the metalledroad between Village Nangli Sakrawatl and Village MasoaJuhaJis not reflected in the ah shizro.Evidenceofthis witness(PW-4)insteadofadvancingthe caseof the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredland in question.

¶13There is no evidenceto establishthe comparabilityofthe acquired landsunderAward(Ex.PW-1/3)pertainingto VillageMangolpurKhurd and under Award (Ex.PW-1/4)ofVillageh4ohammadpurMunirkawith the acquired land in question.Rather,as per evidenceof the concerned official (PW-10), Award (Ex.PW-IO/l)pertained to West Patel Nagar for Metro Project. Thus, in the considered opinion of this Court, ReferenceCourt has rightlyexcludedthe aforesaidAwards(Kx.PW-1/3 &Bx.PW-1/4)to determinethe lair marketvalueofthe acquitedland in question.Selfservingdepositionof claimantsregardingpotentialityof acquiredlands in question,in the ab.seneeofcorroborativeevidence,is not enoughto return positivefindingon this crucial aspect,particularly in view of the fact that evidenceregardingindustriesbeing thete in the vicinityofacquiredlandsis lacking.

¶14So far as the DelhiJal Boardinstance(Ex.PW-4/1)is concerned, Ifind that even its comparabilitywith acquired land in question is not establishedas the witness (PW-5) who has deposed in respect ol this transactionhas concededthat he is not able to tell the distanceIrom the said land to the land in question.Therefore,ReferenceCourt has rightly not reliedupon the DelhiJalBoardinstance(Ex.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthat there is no Governmenthospitalor collegein VillageMasoodabadand theevidence LrAp7""oT2l72'oiV& AppealsofVillageMasoodabad ^=^8^ 1 -3• // regardingthe acquired land 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 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 NC'f of Delhi as undisputedly,the acquired land in question were being usec) for agricultural purpose at the time of its acquisition.

¶16Upon scrutiny of the evidence on record, it becomes jquite apparent that despite Village Masoodabad 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 laud 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 quoteci with approval by the Apex Court in its latest decision in Thakur Kiddeep Singh (supra).

¶17Regarding increase of 10% per annum over and abo^'e the minimum indicative price fixed by Government of NCT of Dehi, 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 vs. Harpat, (2009) 14 SCC-375. This Court finds tllat the I.A.App.No. 421/2010 &Connected Appeals ofVillageMasoodabad Page 8 r\ f 4^ 4' RctcrenceCourt was Justitied in grantingthe atbresaidincreaseof 10% per annum while relyingupon the decisionin Harpaf 18, In the light of the fore-goingnarration,\ Hnd no infirmityin the impugnedJudgment in which tkir compensationhas been assessed in lespectof the acquired land 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. 19, Consequentially,the appealsofthe appellants/claimantsas well as appealsofUnion ofIndiaare dismissed,while leavingthe parties.tobear their own costs. Registry is directed to remit the compensationamount, ifany,depositedby eitherside with the RegistrarGeneralofthis Court, to the concerned Rel^erenceCourt. ^ ""I'SUNILCAIJR) JUDGE March 14, 2012 pkb I'A.App, No. 421/2010 &

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on ; Februaiy 08, 2012 Pronounced on : March 14, 2012 + LA.APP. 862/2010 % UNION OF INDIA Through: versus Appellant Mr.SanjayPoddar, SeniorAdvocate with Mr.Sanjay Pathak, Ms.K.Kiran Pathak, Mr.SuryaNath Pandey, Mr.Yeeshu Jain and Ms.Navlin Swain, Advocates for LAC/UOI MUKESHKUMAR& ANR Respondent Through; 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