Union of India v. Ram Chander & 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 riL 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 DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 LA.AP1\421/201.0(VILLAGEMASOODABAD) SURl^SH PRASADalias IlARl KISHAN Appellant Through: Mr.B.D.Sharma,Mr.S.K.Rout, Ms.SiikhdaDhamija and Mr.B.K.Routray, Advocates versus l.fNlGN OF^ INDIA & ANR. Through: Respondents Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Ms.K.Kiran Pathak,Mr.SuryaNath Pandey, Mi.Yeeshu Jain and Ms..NavjinSwain, Advocates For LAC.^UOl LA.App. No. FA.App. No. I.A.App. No. I.A.App. No. FA.App. No. i:A.App. No. I.A.App. No. FA.App, No. r.A.App; No. FA.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 FA.App. No. FA.App. No. •I.A.App. No. FA.App. No. I-A.App. No. FA.App. No. FA^.App.No. FA.App. No. FA.App. No. FA.App.No. 1 •441/2010 444/201 0 456/2010 459/2010 463/2010 467/2010 470/2010 580/2010 585/2010 013/2010 FA.App. No.

¶1A.App. No^ i;A.App, No, FA.App. No. FA.App. No. FA.App. No. FA.App. No. FA.App. No. FA.App.No. 1 FA.App. No. 442/2010 446/2010 457/2010 '460/20 i 0 464/2010 468/2010 471/2010 583/2010 011/2010 12/20! 2 AND APPFAFSFIFEDBY LNIONOF INDIA FA.App. No. 746/2010 I.A.App. .No. 747/2010 FA.App. No. 751/2010 FA.App. No. 59/2012 FA.App.No. 710/2011 I.A.App.No. 748/2010 f.A.App. No. 749/2010 1-.A.App.No. /53/2010 FA.App. No. 754/2010 i.A...pp,N.. ..21/2010&C..nectcd7i^p^^;;iroTvmag7]SS^ I'agc 1 LA.App.No. 755/2010 LA.App. No. 756/2010 LA.App. No. 859/2010 LA.App. No. 860/2010 LA.App. No. 862/2010 LA.App. No, 863/2010 L.A.App.No. 866/2010 LA.App.No. 867/2010 LA.App.No. 869/2010 LA.App.No. 267/2011 LA.App.No. 21/2012 LA.App.No. 56/2012 (Relating to Notification No. F.7/60/2001/L&B/LA/MRlS(S/W)/7674 of 05.08.2003issued under Section4 of the Land AcquisitionAct, 1894 & Award No. 5/2005-06 of Village Masoodabad, Delhi) COl^M: HON'BLE MR. JUSTICE SUNIL GAUR ORDER %

14.03.2012

¶1For 'NajafgarhDepot, MKTS Project', 610 bighas and 13 biswas of land of Village Masoodabad was acquired vide Notillcationof 5'" August, 2003 under Section 4 of the l.and Acquisition Act, 1894 which was followed by Notificationof 8"' .August,2003 under Section6 of the Land Acquisition Act, 1894 resulting in passing of Award No.5/2005-06 granting compensation at the rate of Rs.15.70 lacs per acre on the basis of indicative pricc 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 pricc upto the dale 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 LA.App. No. 858/2010 LA.App. No. 861/2010 LA.App. No. 865/2010 LA.App. No. 868/2010 LA.App. No. 752/2010 I.A.App, No. 421/2010 & Connected Appeals of Village Masoodabad Page common, therefore, by this common order, these appeals arc 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 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 (lix.PW-1/3)pertainingto Village Mangolpur Khurd and Award (Bx.PW-1/4) of Village Moiiammadpur 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 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 Village N4asoodabadand Najafgarhby DDA to Delhi Jal Board at the rate of Rs.20 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 LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 3 -# India, 1997 1 AD (Del) 83; Hari Chand vs. Union of India, 91 (2001) DL 1 602; Delhi Developnient Authority rv. Land Acquisition Collector & Ors., 130(2006) DT l(DB); Atnia Singh (died) through LRs vs. State of Haryana & 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. v^. Union of India & Anr., 2004 VIII AD (SC) 37; Om Prakash vs. State of Haryana & Ors, 201 1 IV AD (SC) 382; Sagunthala (dead) through LRs v.s. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thirthkar v.v. State of Maharashtra, AIR 2009 SC 2238, U) assert that the compensationclaimedin these appeals isjust 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 kv. 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 questioncontinuedto be used as agriculturalland and therefore, instances of Village Mangolpur Khurd and Village MohammadpurMunirkaare of no avail and the instanceof allotmentof land by DDA in tavour of Delhi .lal Board cannot be treated to be 1epiesentcitiveprice ofthe lands in the vicinityas the evidenceis lackine; legaidingsaid instances to be comparable for determiningthe market value ofthe land in question.Reliancewas placed upon decisionofthe Apex Court in Satpai&Ors. Vs. Union ofIndia, (1997) 11 SCC 423 to assertthat jI in a short periodthere is a sharp increasein price, than the usual prevalenttrend in the market,such an instancecannotbe taken as t-A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad pggg4 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.

¶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 ra. Special Tehsildar (Land Acquisition) Tamil Nadu Housing Board, (2010) 13 SCC 384, in these words;- "Coinparab/e sales instances are the safest method for determining the market value of the acquired land, and as laid down 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 imder Section 4 of the Act; (3) .A.App,No. 421/2010 &ConnectedAppealsofVillageMasoodabad Page 5 I h the land coveredby the sale inusl he in the vlcuiityofthe acquired,land; (4) the land covered, by the sale must he sunilarto the acquiredland; and (5) size ofthe plot ofthe land covered by the sale be comparable to the acqidred land. The sales instancesshouldpreferablybe closestto the date ofthe notificationas then alone it would, satisfy the touchstoneof the principlescontemplatedunderSection23 of the Act, as held in Kanwar Singh v. Unioti of India

(J998)8 see 136. "

¶11Having heard learned counsel for the parties in these matters and upon perusal oi the impugned Judgment, evidence on record and the decisions cited, 1proceed 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. 1^. No doubt, purpose for which the acquisition is made is an uiiportantfactor, but the question as to whetherthe 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, eieetriciiy, possibilityoftheir furtherextensionand the prospectsofdevelopmentin the area have to be taken into consideration.It has been so reiteratedby the Apex Court in Atmu Singh (supra), ll is in this context, 1have scrutinizedthe evidenceon record and I find that there is hardly any evidence regarding the topographyof the area adjoiningthe acquired land in questionand the evidenceled regardingthe ah-shizra(Ex.PW-2/1) ofthis villagedoes not throw any light on this vital aspect,except that the evidence led to prove this documentadverselyreflectsthat on the easternsideof VillageMa^oodabaJ,there is Naiafgarhdrain, which No. 421/2010 &Connected If instead of enhancingthe potem'iaiity,ratlier diminishesit. The witness who was got examined to l^rove the ales shizm of Village Nangh Sakmwali(Ex.PW-4/1)concedesthatthe metalledroad betweenVillage Nangli Sakrawatiand VillageMasoodabadis not reflected in the ah Mzra.Evidenceofthis wimess(PW-4)insteadofadvancingthe case of the appellants/claimants regarding the potent.alily, reduces the potentialityoftlie acquiredland in question.

¶13Thereis no evidenceto establishthe comparabilityofthe acquired lands underAward (Ex.PW-1/3)pertainingto VillageMangolpurKhurd and under Award (Ex.PW-1/4)ofVillageMohammadpurMunirkawith the acquired land in question.Rather, as per evidenceof the concerned official (PW-10), Award (Ex.PW-lO/l)pertainedto West Patel Nagar for Metro Project. Thus, in the considered opinion of this Court, ReferenceCourt has rightlyexcludedthe aforesaidAwards (Ex.PW-lO &Ex.PW-1/4)to determinethe fair marketvalueofthe acquiiedland in question.Selfsei-vingdepositionof claimantsregardingpotentialityof acquiredlands in question,in the absence of corroboradveeviaence,is not enough to return positivefindingon this crucialaspect, partieulaily in view of the fact that evidenceregardingindustriesbeing there in the vicinityofacquiredlands is lacking.

¶14So far as the DelhiJal Boardinstance(Ex.PW-4/r)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 the distancefrom the said land to the land in question.Therefore,ReferenceCourthas rightly not reliedupon the DelhiJalBoardinstance(bx.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthatthere is no • Governmenthospitalor collegein VillageMasoodabadand the evidence • .A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad ''age / Vi // 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 foiled 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 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 AcquisitionAct, 1894. Such a view is being taken as the acquired land in question was admittedly undevelopedand therefore, adoption of DDA auction rates or L&DO rates is not permissible in view of the dictum of the Apex Court in La! Chanel (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 indicativeprice fixed by Governmentof NCT of Delhi, the same cannot be assailed by the respondentas the ReferenceCourt has done so while relying upon decision of the Apex Court in Union of India vs. HavpaU (2009) J4 SCC 375. This Court finds that the I.A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad I'age8 ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10% per annum whilerelyingupon the decisionin Harpat(supra). )8. In the light of the fore-goingnarration,1find no infirmityin the impugnedjudgment in which fair compensationhas been assessed in respectof the acquiredland in question.ReferenceCourt has rightly not 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,while leavingthe partiesto bear their own costs. Registryis directedto remit the compensationamount, ifany, depositedby eitherside with the RegistrarGeneralof this Court, to the concerned Reference Court. March 14, 2012 pkb NA^App, No. 421/2010» TSUNIL CAUR)

+ % IN THE HIGH COURT OF DELHI AT NEW DELHI LA.APP. 867/2010 UNION OF INDIA Through: versus RAM GRANDER & ANR Through: Reserved on : February 08, 2012 Pronounced on : March 14, 2012 Appellant Mr.SanjayPoddar,SeniorAdvocate 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 Dhamij a and Mr.B.K.Routray, Advocates (Relating to NotificationNo. F.7/60/2001/L&B/LA/MRTS(SAV)/7674 of 05.08.2003 issued under Section 4 of the Land Acquisition Act, 1894 & Award No. 5/2005-06of VillageMasoodabad,Delhi) CORAM: HON'BLE MR. JUSTICE SUNIL GAUR