Union of India v. Madho Parshad & 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 BELffl AT NEW DELHI Reserved on : February 08, 20! 2 Pronounced on : March 14, 2012 IA.APP.421/2010(VILLAGEMASOODABAD) SURP.SI]PRASADalias MARl KISHAN Appellant Through: Mi-.B.D.Sharma,Mr.S.K.Rout, Ms.Sukhda Dhamija and 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 Pandcy, Mr.YeeshuJain and Ms.NavIinSwain, Advocates for LAC/UOi l.A.App. No. LA.App. No. I.A.App. No. kA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App.No.l 421/2010 443/2010 455/2010 458/2010 462/2010 465/2010 469/2010 478/2010 584/2010 012/2010 AND LA.App LA.App I.A.App LA.App LA.App. LA.App. LA.App. LA.App. LA.App. LA.App. - No. 441/2010, . No. 444/2010 . No. 456/2010 . No. 459/2010 No. 463/2010 No. 467/2010 No. 470/2010 No. 580/2010 No. 585/2010 No. 1013/2010 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. 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 APPEAI.SFILED BY LINIGNOF INDIA l.A.App.No. 746/2010 LA.App. No, 59/201.2 I.A.App.No 710/901, •A.App.No, 747/2010 LA.App, No, 748/2010 LA,App. No 749/2010 i.A,App,No. 75,./20IO LA.App.No. 753/2010 LA.App.No: 754/2o!o i.A.App.No. 421/2010&QwncctedAppeals Page 1 V LA.App. No. T.A.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. 755/2010 859/2010 862/2010 866/2010 869/2010 21/2012 LA.App.No. 756/20LO LA,App. LA.App.No. 860/2010 LA.App. LA.App.No. 863/2010 l.A.App, LA.y\pp.No. 867/2010 LA.App LA.App.No. 267/2011 LA.App LA.App. No. 56/2012 (Relating to NotificationNo. F.7/60/2001/L&B/LA/MR1 of 05.08.2003issuedunder Section4 of the Land Acquisiti & AwardNo. 5/2005-06of VillageMasoodabad,Delhi) COl^M: HON'BLE MR. JUSTICE SUNIL GAUR ORDER %

14.03.2012 No. 858/2010 No. 861/2010 No. 865/2010 No. 868/2010 No. 752/2010 S(S/W)/7674 on Act, 1894

¶1For 'NajqfgarhDepot, MRTS Project',610 bighas and 13 biswas of land of Village Masoodabad was acquired vide Notificationof 5''^ August, 2003 under Section4 of the Land AcquisitionAct, 1894 which was followed by Notificationof 8"' August, 2003 under Section6 ofthe I.and AcquisitionAct, 1894 resultingin passingof Award No.5/2005-06 grantingcompensationat the rate of Rs.15.70lacs 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.l 8,84,000 per acre for the acquired land in question. 3,. In 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 Ma.soodabad Page 4>- t-I 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.

¶5During the course of hearing, it was pointed out by learned coimsel 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 Land 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-Najafgarh metalled road and in the adjoining Village Nangli Sakrawati, there are industries and Najafgarh 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 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, UnionofIndia&Anr, 2000(54)DRJ(DB) 384; P.N.Singhvs. Unionof # .A.App,No. 421/2010&ConnectedAppealsofVillageMasoodabad Page3 V India, 1997 I AD (Del) ?>3-Hari Chand vs. Union of India, 91 (2001) DL 1 602; Delhi Development Authority kv. Land Acquisition Collector & Ors., 130(2006) DT 1(DB); Atma Singh (died) through LRs vs. State of Hary ana & Anr., AIR 2008 SC 709; Mahahir 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. V5, Union of India & Anr., 2004 VIII AD (SC) 37; Om Prakash vs. State of Hary ana & Ors, 2011 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 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 respectof agriculturalland stands negated by the Apex Court in decisionin Lai Chand vs. Union ofIndia andAm., (2009) 15 SCC 769. It was also urged by learnedcounsel for the respondentsthat despite Village Masoodabad being declared to be urbanized, the acquiredland in questioncontinuedto be used as agriculturalland and therefore, instances of Village Mangolpur Khurd and Village Mohammadpur Munirka are of no avail and the instance of allotjnent of land by DDA in lavour of Delhi Jal Board cannot be treated to be representativeprice ofthe 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 in Satpal&Ors. Vs. Union ofIndia, (1997) 11 SCC 423 to assertthat if in a shortperiodthere is a sharp increasein price, than the usual prevalenttrend in the market,such an instancecannot be taken as i.A.App,No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 4 <•* V. - .5M' f V 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 instantmatters,there is no evidenceshowingincrease in the marketprice of the land in questiontill its acquisition.It is assertedthat doing away 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 test to determinethe true marketvalue ofthe 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 determiningthe market value of the acquired land and as laid down in Shaji Kuriakose v. Indian Oil Corpn. Ltd.,

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

(1) the sale mustbea genuinetransaction;(2) the sale deed must have been executedat the time proximateto the date of issuanceofnotificationunder Section 4 of the Act; (3) LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page5 ' ' the land coveredby the sale must be in the vicinityofthe accjuiredland; (4) the land covered by the sale must he similarto the acquiredland; and (5) size oftheplotofthe land covered by the sale be comparable to the acquired land. The sales instancesshouldpreferablybe closestto the date ofthe notificationas then alone it would satisfy the touchstoneof theprinciplescontemplatedunderSection23 of the Act, as held in Kanwar Singh v. Union ofIndia

(1998)8 see 136."

1.1. riavingheard iearned counselfor 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 madequacy of the compensation amount . is upon the appellants/claimants/Nowit is to be seen as to whether the appellants/clamiantshave been successfulin dischargingthis burden or not.

¶12No doubt, purpose for which the acquisition is made is an miportantfactor, 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 reasonablycapable of being put and proximity to residential, commercial or industrial or mstitutional area. The existing amenities like water, electricity, possibilityoftheirllirtherextensionand 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, I have scrutinizedthe evidence on record and 1find that there is hardly any evidence regardingthe topographyof the area adjoiningthe acquired land in questionand the evidenceled regardingthe aks shizra(Ex.PW-2/1) of this villagedoes not throw any light on this vital aspect, except that the evidenceled to prove this documentadverselyreflectsthat on the easternside ofVillageMasoodabad,there is Najal^arhdrain, which lAApp,No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 6 insteadof enhancingthe potentiality,rather diminishesit. The witness wlio was got examined to prove the afa shi.ra of Village Ncmgh Sakrawati(Ex.PW-4/1)concedesthatthe metalledroad betweenVillage Nangli Sakrawatiand VillageMmoodabadis not reflectedin the ah Mzra.Evidenceofthis witness(PW-4)insteadofadvancingthe case of the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredland in question.

¶13Tliereis no evidenceto establishthe comparabilityoftlie acquired landsunderAward(Ex.PW-1/3)pertainingto VillageMangolpurKhurd and under Award (Ex.PW-1/4)of VillageMohammadpurMunirkawith the acquiredland in question.Rather,as per evidenceofthe concerned official (PW-10), Award (Ex.PW-10/1)pertainedto West Patel Nagar for Metro Project. Thus, in the considered opinion of this Court, ReferenceCourthas rightlyexcludedthe aforesaidAwards(Ex.PW-1/3 &Ex.PW-1/4)to determinethe fairmarketvalueofthe acquiredland in question.Selfservingdepositionof claimantsregardingpotentialityof acquiredlands in question,in the absence of corroborativeevidence,is not enoughto returnpositivefindingon this crucialaspect,particularly in view of the fact that evidenceregardingindustriesbeingthere mthe vicinityofacquiredlands is laclcing. ' 14. So far as the DelhiJal Boardinstance(Ex.PW-4/1)is concerned, I find that even its comparabilitywith acquiredland in question is not establishedas the witness (PW-5) who has deposed in I'espect of this transactionhas concededthat he is not able to tell the distancefrom the said land to the land in question.Therefore,ReferenceCourthas rightly not reliedupon the DelhiJal Boardinstance(Ex.PW-4/l).

¶15It has come in evidenceofthe appellants/claimantsthat there is no Governmenthospitalor collegein VillageMasoodabadand the evidence l^A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page is /J 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 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 Masoodahad 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 marlcet 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 viev/ 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 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 v/hile relying upon decision of the Apex Court in Union of India vs. Harpat,

(2009) 14 SCC

¶375This Court finds that the -A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 8 v-v.:!'.. fi- •v.. ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10% per annumwhilerelyingupon the decisionin Harpat(supra).

¶18In the light of the fore-goingnarration,I find no infirmityin the impugnedjudgment in which fair compensationhas been assessed in respectofthe 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,whileleavingthe partiesto bear tfieirown costs. Registryis directedto remit the compensationamount, li any, depositedby eitherside with the RegistrarGeneralofthis Court, to the concernedReferenceCourt. March 14, 2012 pkb I, I.A.APP. No. 421/2010 & age Masoodabad ^ rSUNILGAUR) JUDGE Page 9

* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 + LA.AFP. 868/2010 UNIONOF INDIA ' Appellant Through: Mr.SanjayPoddar,SeniorAdvocate withMr.SanjayPathak,Ms.K.Kiran Pathak,Mr.Surya Nath Pandey, Mr.Yeeshu Jain and Ms.Navlin Swain, Advocates for LAC/UOI versus MADHOPARSHAD&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 05.08.2003issuedunder Section4 of the Land AcquisitionAct, 1894 & AwardNo. 5/2005-06of VillageMasoodabad,Delhi) CORAM: HON'BLE MR. JUSTICE SUNIL GAUR