Union of India v. Somesh Paliwal & Anr

ORDER o/o

14.03.2012 For orders see LA.APP.421/2010, titled as Suresh Prasad alias Hari Kishan vs. Union ofIndia & Anr. JIL GAUR) JUDGE March 14, 2012 pkb 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 DKLHI NEW DELHI Reserved on : February 08, 201 2 Pronounced on : March 14, 2012 LA.APP.421/2010(VILLAGEMASOODABAD) SURHSUPRASADalias UARI KlSIIAN 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 Pandcy, Mr.YccshuJain and Ms.NavlinSwain, Advocates for LAC/UOl 1,A.App. No. LA.App. No. LA.App. No. T.A.App. No. LA.App. No. LA.App. No. L.A.App.No. LA.App. No.

1.A.App. No.

1.A.App.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. l.A.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App.No.l 441/2010 444/2010 456/2010 459/2010 463/2010 467/2010 470/2010 580/2010 585/2010 013/2010 LA.App. No. LA.App. No. LA.y\pp. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App.No. I I..A.App. No-442/2010 446/2010 457/2010 460/2010 464/2010 468/2010 471/201,0 583/2010 01 1/2010 •) APPL:ALSFIIiiD BY UNION OP INDIA i.A.App,No. 746/2010 LA.App,No. 59/2012 I.A.App.No. 7l0/20iI I^°" tA.App.No. 748/2010 I.A.App.No. 749/2010 t.A.App.No. 751/2010 LA.App.No. 753/2010 LA.App.No. 754/2010 •A.App. No. 421/2010&ConnectedAppealsofVillageMasoodabad I'age 1 a LA.App. No. 755/2010 LA.App.No. 756/2010 LA.App. No. 858/20]0 LA.App. No. 859/2010 LA.App.No. 860/2010 LA.App.No. 861/2010 LA.App.No. 862/2010 L.A.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 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. 5/2005-06 of VillageMasoodabad, Delhi) CORAIVl: nON'BLE MR. JUSTICE SUNIL GAUR O R D E R %

14.03.2012

¶1Lor 'NajafgarhDepot, MRTS Project\ 610 bighas and 13 biswas of land of Village Masoodabad was acquired vide Notillcationot 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 passingof Award No.5/2005-06 grantingcompensationat the rate of Rs.l 5.70 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 (t/]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.. conipensation amount,- slood enhanced to Rs.18,84,000 per acre lor ihe acquired land in question.

¶3In the instant appeals, forther 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 & Connected Appeals of Village Masoodabad Page 2 a common, therefore, by this cofflmoii 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 potentialityof the acquired land as buildiiig 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.

¶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 Dclhi-Najafgarh metalled road and in the. adjoining Village Nangli Sakrawati, there are industries and Najal'garh Industrial Area is in the vicinity.

¶6Accordingto the learned counsel for the appellants/claimants,the best piece of evidence,i.e. allotmentof land in VillageMasoodabadand Najafgarhby DDA to Delhi Ja| Board at the rate of Rs.20 lacs per acre m the year 1993 has been illegally discarded by the ReferenceCourt. Reliance is placed,upon the decisions reported in Tindey & Ors. Vs. UnionofIndia&Anr, 2000(54)DRJ(DB) 384; P.N.Singhvs. Union of ,A.App. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 3 j I India, 1997 T AD (Del) 83; Hari Chan d vs.Vnion of India, 91 (2001) Dl/r 602; Delhi Development Authority w. 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. LR. 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 v.v. State of Haryana & Ors, 201 1 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 V compensation claimed in these appeals is just and reasonable. /. On behalf ol the respondents, it was asserted by learned Senior Counsel for the respondentsthat adoption of the auction rates of DDA or L&DO rates in respectof agriculturalland stands negated by the Apex Court in decision in Lai Chand vs. 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 acquired land in question continued to be used as agriculturalland and I therefore, instances of Village Mangolpur Khurd and Village MoharamadpurMunirkaare of no avail and the instanceof allotmentof hy DDA in favour of Delhi Jal Board cannot be treated to be 1epiesentativepricc ol' the lands in the vicinityas the evidenceis lacking regarding said instances to be comparable for determiningthe market value ofthe land in question.Reliance was placed upon decisionofthe Apex Court in Satpal&Ors. Kv. Union ofIndia, (1997) 11 SCC 423 to asseitthat li in a short period there is a shai-p increase in price, than the usual prevalenttrend in the market, such an instancecannot be taken as -A.App. No. 421/2010&ConnectedAppeal.soPVillageMa.soodabad 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. 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.

¶10Factorsand test to determinethe true marketvalue of the acquired land have been restated by the Apex Court in its recent decision in i Radha MudaUyar vs. Special Tehsildar (Land Acquisition) Tamil Nadu Housing Board, (2010) 13 SCC 384, in these words "Comparable sales instances are the safest methodfor cleterminingthe market value of the acquired land and as laid down in Shaji Kuriakose v. Indian Oil Corpn. Ltd..

(2001) 7 SCC 650, it shouldsatisfy thefactors, inter alia.

(1) the sale must be a genuine transaction: (2) the sale deed must have been executedat the time proximate to the date of issuance of notificationimder Section 4 of the Act; (3) -A.App,No. 421/201.0&ConnectedAppealsofVillageMasoodabad Page5 •C' 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 of the plot ofthe 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 touchstoneof the principlescontemplatedunderSection 23 of the Act, as held in Kanwar Singh v. Union of India

(1998)8see 136:' ^ ' ' I1. Having heard learned counsel For 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 appcllants/claimants.Now it is to be seen as to whether the appellants/claiinantshave been successfulin dischargingthis burden or not.

¶12No doubt, purpose for which the acquisition,is made is an important fector, 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 reasonablycapabic of being put and proximity to residential, commercial or industrial or institutional area. The existing amenities like water, electricity, possibilityoi their furtherextensionand the prospectsofdevelopmentin the area have to be taken into consideration.It has been so reiteratedby the Apex Court \\\ Atma Singh (supra). Tt is in this context, 1have scrutinizedthe evidence on record and 1llud that there is hardly any evidence regarding the topographyof the area adjoining the acquired land in questionand the evidence led regardingthe aks shizra(Hx.PW-2/1) ol this villagedoes not throw any light on this vital aspect, exccpl that the evidence led to prove this documentadversely rcHects that on the easternside of VillageMasoodabcufthere is Najafgarhdrain, which KA.App, No. 421/2010&ConnectedAppealsofViHage Page 6 /5 ^ ' • insteadof enhancingthe potentiality,mthev diminishes.t^ Ihe witness who was got examined to prove the ak.s sh.ra of Vihage Nan.li Sakra.a,.i(llx.PW-4/1)concedesthatthe metalledtoad betweenV.llage Nangli Sakrawati and Village Masoodahadis not reflected in the atv Mzra.bvidenceofthis witness(PW-4)insteadof advancingthe case oj the appellants/claimants regarding the potentiality, reduces the', potentialityofthe acquiredland in question. I3^ Thereis no evidenceto establishthe comparabilityofthe acquired landsunderAward(Ex.PW-1/3)pertainingto VillageMangolpwKhurd and under Award(Ex.PW-1/4)of VillageMohamwadpurMunirkawith the acquiredland in question.Rather,as per evidenceofthe concerned official (PW-10), Award (Ex.PW-lO/l)pertained to West Patel Nagar for Metro Project. Thus, in the considered opinion of this Court, ReferenceCourt has rightlyexcludedthe aforesaidAwards (F,x.PW.l/3 &Ex.PW-l/4)to determinethe fair marketvalueofthe acquiredland in question.Selfservingdepositionof claimantsregardingpotentialityof acquired lands in question,in the absenceof corroborativeevidence,is not enough to reUirn positive findingon this cracialaspect,particularly in view of the fact that evidenceregardingindustriesbeing there in the vic;inityofacquiredlands is lacking. 14* So far as the DelhiJalBoardinstance(Ex.PW-4/f)is concerned, I-find that even its comparabilitywith acquired land in question is not establishedas tlte 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 relied upon the DelhiJal Boardinstance(I.sx.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthat theic is no Governmenthospitalor collegein VillageMasoodabadand the evidence LA.App.No. A'n/?m08i ConnectedAppealsofVillageMasoodabad I'age7 f :• V.' regardingthe acquired land in question'being surroundedby 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 acquired land in question were being used for agricultural purpose at the time of its acquisition.

¶16^ Upon scrutiny of the evidence on record, it becoines quite 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 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 La! Chand (supra), which has been quoted with approval by the Apex Court in its latest decision in Thakur Kiildeep Singh (supra).

¶17Regarding increase of 10% per •annum over and above the minimum indicative price fixed by Government of NCT 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 vs. Harpat,

(2009) 14 SCC

¶3751'his Court finds that the .A.App.No. 421/2010 &Connected Appeals of Village Masoodabad Page 8 , k w ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10% per annum whilerelyingupon the decisionin Harpat(supra).

¶18In the light of the fore-^goingnarration,I find no inHrmity in the impugned judgment m which fair compensationhas been assessed in lespcctof the acquired land in question.ReferenceCourthas rightlynot', classified the acquired land in question into 'A' category and 'B' category, as I.and AcquisitionCollector in the Award in question has unequivocally stated that no classification of the acquired land is lequiredto be done as the acquiredland is leveled.

¶19Consequentially,the appealsofthe appellants/claimantsas wellas appealsofUnionofIndiaare dismissed,whileleavingthe partiesto bear theirown costs. Registryis directedto remit the compensationamount, ifany, depositedby eitherside with the RegistrarGeneralofthis Court, to the concerned ReferenceCourt. March 14, 2012 pkb I.A.APP.No. 421/2010&ConnectedAppestsofVillageMasooclabad ' ' TSIJNILGAUR) .lUbGE Page 9

IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.APP. 869/2010 Reserved on : February 08, 2012 Pronounced on : March 14, 2012 UNIONOF INDIA Appellant Through: Mr.SanjayPoddar,SeniorAdvocate with Mr.SanjayPathak, Ms.K.Kiran Pathak, Mr.Surya Nath Pandey, Mr.Yeeshu Jain and Ms.Navlin Swain, Advocates for LAC/UOI versus SOMESHPALIWAL& ANR Respondent Through: Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Suldida 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