Union of India v. Harish & 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 [L 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. !N THE HIGH COURT OF DELHI AT NEW DEUH Reserved on ; February 08, 2012 Pronounced on : March 14, 2012 I.A.APP.42-1/2010(VILLAGEMASOODABAD) SlJRJ'.SIlPRASADaliasIIAIU KISIIAN Appellant Through: Mr.B.D.Sharma,Mr.S.K.Rout, Ms.Sukhda Dhajnija and Mr.B.K.Routray, Advocates versus UNION 01' INDIA & ANI^. Through: Respondents Mr.Sanjay Poddar, Senior Advocatc with Mr.Sanjay Pathak, Ms.K.Kiran Pathak,Mr.SuryaNath Pandcy, Mr.Yeeshu .Jain and Ms.Navlin Swain. Advocates for LAC/UOl l.A.App. No. FA.App. No. l.A.App. No. LA.App. No. LA.App. No. LA.App. No. l.A.App. No. l.A.App. No. FA.App. No. IvA.App.No. I 421/2010 443/2010 455/2010 458/2010 462/2010 465/2010 469/2010 478/2010 584/2010 012/2010 AND LA.App. No. I.A..4pp. 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.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.App. No. LA.App. No. LA.App. No. LA.App. No. iLA.App. No. LA.App. No. LA.App.No. 1 LA.App. No. 442/20! 0 446/2010

457./2010 460/2010 464/2010 468/2010 471/2010 583/2010 01 1/2010 12/2012 • AND APPEAI.SFIM-D by union of INDIA 1-A.App.No, 746/2010 l.A.App.No. 59/2012 l.A.App.No. 7'0/90lI Aa''''' m°' '-A.App,No. 748/2010 LA.App.No. 749/2010 l.A.App.No. 721/2010 l.,A.App.No. 753.'20I0 l,A.App.No, 754./20I0 I.A,Ap",No, 421/2010 &Connected Page 1 LA.App. No. l.A.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. )° 755/2010 LA.App.No. 756/2010 LA.App.No. 858/2010 859/2010 LA.App.No. 860/2010 LA.App.No. 861/2010 862/2010 LA.App.No. 863/2010 LA.App.No. 865/2010 866/2010 LA.App.No. 867/2010 LA.App.No. 868/2010 869/2010 LA.App. No. 267/2011 LA.App.No. 752/2010 21/2012 LA.App. No. 56/2012 (Relating to NotificationNo. F.7/60/2001/L&B/LA/MRTS(S/W)/7674 of 05.08.2003issuedunder Section4 of the Land AcquisitionAct, 18,94 & AwardNo. 5/2005-06of VillageMasoodabad,Delhi) CORAM: HON' BLE MR. .TUSTICE SUNIL GAUR ORDER %

14.03.2012

¶1For 'NcijafgarhDepot, MKTS Project\ 610 bighas and 13 biswas of land of Village Masoodabad was acquired vide Notificationof August, 2003 under Section 4 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.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.l 8,84,000 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 l.A.App.No.421/2010 & Connected Appeals of Village Masoodabad Page 2 /• 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 coursc 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 [.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-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 VillageiVlasoodabadand Najafgarh by DDA to Delhi .iai 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. Unionof LA.App. No. 421/2010 &Connected.AppealsofVillageMasoodabad Page 3 India, 1997 1 AD (Del) 83; Hari Cfunid vs. Union of India, 91 (2001) DL I 602; Delhi Development Authority rs. Land Acquisition Collector & Ors., 130(2006) DT I(IDB); Atma Singh (died) through LRs vs. State of Hary ana & 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 Union of India & Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs & Ors. us. Union of India Anr., 2004 VIIT AD (SC) 37; Om Prakash State of Haryana eft Ors, 201 1 IV AD (SC) 382; Sagunthala

(dead) through LRs I'.v. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thirthkar vs. State of Maharashtra, AIR 2009 SC 2238, lo asscn 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 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 lo be urbanized, the acquired land in question continuedto be used as agriculturalland and therefore, instances of Village Mangolpur Khurd and Village Mohammadpur Munirka are oi no avail and the instance of allotment of land by DDA in lavour of Delhi Jal Board cannot be treated to be representativeprice of the lands in the vicinii}'as the evidenceis lacking regarding said instances to be comparable for determiningthe market value of the land in question.Reliancewas placed upon decisionof the Apex Court in Satpal&Ors. Vs. Union ofIndia, (1997) 11 SCC 423 to assertthat ifin a short period there is a sharp increasein price, than the usual pievalenttiend in the market,such an instancecannotbe taken as .A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad ' Page4 t) 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 F^oard 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 Vlasoodabad 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. Tt is asserted that doing away of classification of acquired lands in question by Reference Court is illogical and without any Justification, 'fhus, setting aside of the impugned judgment and restoring of the Award of the I.and 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 Muda/iyar kv. 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 down in Shaj'i 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) .A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 5 .1' / the land coveredby the sale must he in the vicinityofthe acquired,land; (4) the land covered by the sale must be similarto the acquiredland; and. (5) size ofthe plot ofthe land covered by the sale be com.parableto 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)8 see 136.'• ' ' ' 1I. Having heard learned counsel for the parties in these mattersand 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 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 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, possibilityoftheirfurtherextensionand the prospectsofdevelopmentin the area have to be taken into consideration.It has been so reiteratedby the Apex Court in Atma Singh (supra). It, is in this context, I 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) ol this villagedoes not throw any light on this vital aspect, except that the evidence led to prove this documentadversely rellects that on the easternside of VillageMasoodabad,there is Najafgarhdrain, which l^A.App.No. 421/2010&ConnectedAppealsofVillageMa.^oociabad Page 6 instead of enhancingtlie potentiality,rather diminishesit. The witness who was got examined to prove tltc .fa .vtoz™of Village Nang/, Sakrawali(l!x.PW-4/l)concedesthatthe metalledroad betweenVillage Nangli Sakrawati and Village Masoodabadis not reflected in the afa Mzra. Uvideneeofthis witness(PW-4)insteadofadvancingthe case of the appellants/claimants regarding the potentiality, leduccs thc,^ potentialityofthe acquiredland in question. 13, Thereis no evidenceto establishthe comparabilityofthe acquired landsunder Award(Ex.PW-1/3)pertainingto VillageMangolpurKhurd and under Award (Bx.PW-1/4)of VillageMohammadpurMunirkawith the acquiredland in question.Rather, as per evidenceof the concerned official (PW-10), Award (Ex.PW-IO/l)pertainedto West Patel Nagar for Metro Project. Thus, in the considered opinion ol this Court, ReferenceCourt has rightlyexcludedthe aforesaidAwards(Kx.PW-l/3 &Kx.PW-1/4)to determinethe fair marketvalue ol the acquiredland m question.Self sei-vingdepositionof claimantsregardingpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is not enough to return positivefindingon this crucial aspect,particularly in view of the fact that evidenceregardingindustriesbeingthere mthe vicinityofacquiredlands is lacking.

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

¶15It has come in evidenceofthe appellants/claimantsthat Iheie is no Governmenthospitalor collegein Village\4asoodahacland the evidence l.A.App,No. 421/2010&ConnectedAppealsofVillageMasoodabad Page7 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 ofiNCT 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 Govemment of NCI" of Delhi appears lo 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% pei-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 v.v. Harpat,

(2009) 14 SCC

¶375'fhis Court finds that the I.A.App. No. 421/2010 &ConnectedAppealsofVillageMasoodabad Page 8 RcfeienceCourt was justifiedin grantingthe aforesaidincreaseof 10% per annum while relyingupon the decisionin Harpal(supra).

¶18In the light of the fore-goingnarration,1find no infirmityin the impugned judgment in which fair compensation has been assessed in respectofthe acquired land in question.ReferenceCourt has rightlynot classified the acquired land in question into 'A' category and 'B' category, as l.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 appealsofUnionofIndiaare dismissed,whileleavingthe partiesto bear their own costs. Registryis directedto remit the compensationamount, if any, depositedby eitherside with the RegistrarGeneral of (his Court, to the concerned Reference Court. • '"''TSUNIL(,;AIJR) JUDGE March 14, 2012 pkb U.App,No. 421/2010&ConnMcdAp"cn,l.sofVilbge ,

+ % * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 LA.APP. 860/2010 UNION OF INDIA 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 Through: versus I-IARISH & ANR Respondent Through: 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