Union of India v. Narbada Devi & Anr

ORDER

14.03.2012 For orders see LA.APP.421/2010, titled 2iS Suresh Prasad alias Hari Kishan v^. Union ofIndia & Anr. 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;:PELHi NEW DELHI ' Reserved on ; h'ebruary 08, 2012 Pronounced on : March !4, 2012 LA.APP.421/2010(VILLAGE MASOODABAD) SURP:SHPRASADalias IIAFU KISMAN Appellant Through: Mr.B.D.Sharma, Mr.S.K.Rout, Ms.Sukhda Dhamijaand Mr.B.K.Routray, Advocates versus UNION OF INDIA & ANR. Through: Respondents Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Ms.K.Kiran Pathak,Mr.SuryaNath Pandey, Mr.YeeshuJain and Ms.NeivlinSwain, Advocates for r.AC/UOi [.A.App. No. LA.App. No. j.A.App. No. 1-A.App, No. l.A.App. No. l^A.App. No. LA.App. No. hA.App. No. i-A.App. No. i.-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. LA.App. No. LA.App, No. l.A.App. No. LA.App. No. LA.App. No. LA.App.No.l 441/2010 444/2010 456/2010 459/201 0 463/2010 467/201 0 470/2010 580/2010 585/2010 013/2010 LA.App. No. 1vA.App. No. LA.App. No, i.A.App. No, i-A.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App.No. 1 LA.App. No. 442/2010 446/2010 457/2010 460/2010 464/2010 468/2010 471/2010 583/2010 01 1/2010 12/2012 AND APPr-:A[.sfill:d by union of inf^ia i.A.App.No. 746/2010 LA.App, No, 59/2012 l.A App No 7I0/-'01. -A.App. No, 747/2010 l.A.App,No. 748/20i0 l.A.App No 749/^010 I.A,App.No, 7M/2010 l,A,App.No. 753/2010 I.A.Apl,:Na ^S^OIO ('age 1 j LA.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 I.A.App.No. 752/2010 LA.App.No. 21/2012 LA.App. No. 56/2012 (Relating to Notification No. L.7/60/2001/L&B/LA/MR'lS(S/W)/7674 of 05.08.2003issued under Section 4 of the Land AcquisitionAct, 1894 & Award No. 5/2005-06 of Village Masoodabad, Delhi) CO RAM: HON'BLE MR. JUSTICE SUNIL GAIJR ORDER %

14.03.2012

¶1For 'NajafgarhDepot, MRTS Project', 610 bighas and 13 biswas of land of Village Masoodabad was acquired vide Notificationoi 5"' August, 2003 under Section4 of the [.and AcquisitionAct, 1894 which was followed by .Notificationof 8"' August, 2003 under Section 6 of the Land AcquisitionAct, 1894 resultingin passingof Award No.5/2005-06 grantingcompensationat the rate of Rs.15.70 lacs per acre on the basis of indicative price fixed by the Government of NCI' 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 I.A.App. No. 421 /201() & 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 thai 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.

¶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 (he proposed residential purpose. Much rcliancc was placed upon Award (Fix.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. It is pointed out that some parcel of acquired land abuts the main Delhi-Najalgarhmetalled road and in the adjoiningVillageNangli Sah'awati, 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 Village N4asoodabadand by DDA to Delhi Jal Board at the rate ol Rs.20 lacs per acrc rn the year 1993 has been illegally discarded by the Reference Court. Reliance is placed upon the decisions reported in Tindey Ors. Ks. UnionofIndia&Anr, 2000(54)DRJ(DB) 384; P.N.Singhvs. Unionof .A.App. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 3 India, 1997 I AD (Del) 83; Hari Chand vs. Union of India, 91 (2001) DLT 602; Delhi Development Authority w. Land Acquisition Coilecior & Ors., 130(2006) DT 1(DB); Atma Sin^h (died) through LRs vs. State of Haryana tS Anr., AIR 2008 SC 709; Mahabir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors.,

(J987) 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 vs. State ofHaryana & Ors, 2011 IV AD (SC) 382; Sagunthala

(dead) through LRs vs. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thirthkar kv. State of Maharashtra, AIR 2009 SC 2238, to assert that the compensation claimed in these appeals is just 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 respect of agriculturalland stands negated by the Apex Court in decision in Lai Chand kv. Union of India 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 questioncontinuedto be used as agriculturalland and therefore, instances of Village Mangolpur IChurd and Village MohammadpurMunirkaare of no avail and the instanceof allotmentof land by DDA in favour of Delhi Jal Board cannot be treated to be 1epiesentativeprice ofthe lands in the vicinityas the evidenceis lacking legaiding said instcinces to be comparable (or determiningthe market value ofthe land in question.Reliancewas placed upon decisionofthe Apex Court in Satpal&Ors. Vs. Union ofIndia, (1997) 11 SCC 423 to dsseit that i( in a shortperiod there is a sharp increase in price, than the usual picvalenttrend in the market, such an instancecannotbe taken as I-A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad ^ ir- £- 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 evidenceshowingincreasein the marketprice of the land in questiontill its acquisition.Ft is asserted that doing av^^ay of classificationof acquired lands in question by Reference Court is illogical and without any justification. Thus, setting aside of the impugnedjudgmentand restoringof the Award of the Land Acquisition Collector is sought by the respondents.

¶10Factorsand testto determinethe true marketvalue of the acquired land have been restated by the Apex Court in its recent decision in Radha Muclaliyar va". Special Tehsilclar (Land Acquisition) Tamil Nadu Housing Board, (2010) 13 SCC 384, in these words:- "Coinparable sales instances are the safest method for determining the market vahie of the acquired land and as laid down in Shaji Kuriakose v. Indian Oil Corpn. Ltd.,

(2001) 7see 650, it should satisf}> 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 issuanceof notificationunder Section 4 of the Act; (3) .A.App,No.- 421/2010&ConnectedAppealsofVillageMasoodabad Page5 V the land coveredby the sale must he in the vicinitvofthe 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 be comparableto the acquired land. The sales instancesshouldpreferablybe closestto the date ofthe notificationas then alone it would satisfy the touchstoneoftheprinciplescontemplatedunderSection23 of the Act, as held in Kaimar Singh v. Union of India

(1998)8 see 136." \ 1. Having heard learnedcounsel 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 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 aequ.sition is made is aji 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 reasonablycapableof being put and proximity to residential, commercial or industrial or institutional area. The existing amenities like water, electricity, possibilityoftheirfurtherextensionand the pi'ospectsofdevelopmcnlin •the ai-ea have to be taken into consideration.It has been so reiteratedby (he Apex Court in Atma Singh (supra). It is in this context, I have sci-utinizedthe evidence on .-ecoi-d and I find that lhe,-e is hardly any evidence regai'dingthe topographyof the area adjoining the acquired land in questionand the evidenceled regai'dingthe ah shizra(Ex.PW-2/1) of this villagedoes not thi-owany light on this vital aspect,except that the evidence led to prove this documentadve,-selyreflectsthat o,t the easternside ofVillage thei-e is Najafgaitd,-ain, which IAApp. No. 421/2010&CoimectedAppealsofVillageMa,50odabad Page 6 # instead of enhancingthe potentiality,rather diminishesit. The witness who was got examined to prove the ak. Mzra of Village Nangh Sakra^ati(F,x.PW-4/l)xoneedesthatthe metalledroad betweenVillage Nangli Sakrawatiand Village Masoodabadis not reflected in the a/« shiz.a.Evidenceofthiswitness(PW-4)insteadofadvancingthe case ot the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredland in question.

¶13Thereis no evidenceto establishthe comparabilityofthe acquired landsunderAward(Ex.PW-1/3)pertainingto VillageMangolpurKhurd and under Award (Ex.PW-1/4)ofVillageMohamwadpurMunirkawith the acquired land in question.Rather,as per evidenceof the concerned ofllcial (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(Hx.PW-1/3 &, l'ix.PW-1/4)to determinethe fair marketvalueofthe acquiredland in question..Selfservingdepositionof claimantsregardingpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is not enoughto return positivefindingon this cmcial aspect,particularly in view of the fact that evidenceregardingindustriesbeing there in the vicinityofacquiredlands is lacking. -- 14. So far as the DelhiJal Boardinstance(Ex.PW-4/1)is concerned, 1find that even its comparabilitywith acquired land in question is not establishedas the witness (PW-5) who has deposed in respect ot this transactionhas concededthat he is not able to tell the distancefrom the said land to the land in question.Therefore,RelerenceCourthas rightly not relieduponthe DelhiJal Boardinstance(Ex.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthatthere is no Governmenthospitalor collegein VillageMasoodabadand the evidence lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 7 a f ' 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/claimEmts 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.

¶16Upon scrutiny of the evidence on record, it becomes 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 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 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 V5, Harpat,

(2009) 14 SCC

¶375This Court finds that the -A.App. No. 421/2010 &Connected Appeals of Village Masoodabad Page 8 'S if.- :K f RclerenceCourt was justifiedin grantingtiie aforesaidincreaseof 10% per annum whilerelyingupon the decisionin Harpat(supra).

¶18In the light of the fore-goingnarration,I find no infirmityin the mipugnedjudgment in which fair compensationhas been assessed in respectofthe acquiredland in question.ReferenceCourt has rightlynot classiiied 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 requiredto be done as the acquiredland is leveled.

¶19Consequentially,the appealsofthe appellants/claimantsas well as appealsofUnion ofIndiaare dismissed,whileleavingthe partiesto bear cheu own costs. Registryis directedto remitthe compensationamount, li any, depositedby eitherside with the RegistrarGeneralofthis Court, to the concerned ReferenceCourt. March 14, 2012 pkb / ago V ^IJNILGAUR) JUDGE

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 + LA.APP. 859/2010 % UNION OF INDIA Through: versus NARBADA DEVI & ANR Through: 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