Union of India v. Satish Kumar & Anr

ORDER

14.03.2012 For orders see LA.APP.421/2010, titled as Suresh Prasad alias Had Kishan vs. Union ofIndia & Am. March 14, 2012 pkb rUNIL 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. o m THE HIGH COlJR'i:,:t)''F-DELHI •AT'NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 LA.APP.421/2010(VILLAGEMASOODABAD) SURlvSHPRASADalias HARJ KLSHAN Appellant Through: Mr.B.D.Sharma,Mr.S.K^Roul, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates versus UNION 01-INDIA & ANR. Through: Respondents Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay-Pathak, Ms.X.Kiran Pathak,Mr.SuryaNath Pandey, Mr.YeeshuJ:ain and Ms.NavlinSwain, Advoc^atcs .for LAC/UOI T.A.App. No. r.A.App. No. LA.App. No. LA.App. No. I.A.App. No. LA.App. No. f.A.App. No. LA.App. No. I-A.App. No. l..A.App.No. 1 421/2010 443/2010

455./2010 458/20 ]0 462/2010 465/20,10 469/2010 478/2010 584/2010 012/2010 AND' L/V.App.No. I..A.App.No. LA.App. No. LA.App-. No. IvA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. I.A.App.No. I AND 441/2010 444/2010 456/2010 459/2010 463/2010. 467/2010, 470/2010 580/2010. 585/2010 013/201 0 • LA.App. No. l.A.App, No. l..A.App. No.- i.A, App.-.No. LA.A.pp.No. LA.App. No. LA.App. No. LA.App. No.

1..A.App.No.,! LA.App. No. 442/2010 446/2010' .• 457/20.1 0 460/201 0 ; 464/2010 468/2010 471/2010 583/2010 011/2010 12/2012 APPIiAI.SFILED BY UNION OF INDIA LA.APP. No. 710/201 I KA.App.No. 747/2010 LA.App.No. 748/20]0 LA.App,No. 749/7010 LA.App.No. 751/2010 LA.App.No. 753/2010 r",\.App.No, 754/2010 l.A.App.No. 421/2010&ConnectedAppealsofVi'.lageMasoodabad Page 1 . .r , l.A.App. No. LA.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/MRlS(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 O R D E R %

14.03.2012

¶1l^'or 'NajafgarhDepot, MRTS Project', 610 bighas and 13 biswas of land of Village Masoodabad was acquired vide Notificationof 5"^ August, 2003 under Section 4 of the Land AcquisitionAct, 1894 which was followedby Notificationof 8^'' August, 2003 under Section6 of the Land Acquisitiony\ct, 1894 resultingin passingof y\wardNo.5/2005-06 granting compensation at the rate of Rs.15.70 lacs per acre on the basis of indicative price fixed by the Government of NC'f of Delhi for tlie 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, liirther 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/^010 & Connected Appeals o.fVillage Masoodabad Page 2 m common, therefore, by this common order, these appeals are being disposed of

¶4On behalf of the appellants/claimants,it is urged that the learned Refcrence 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 rcliancc was placed upon Award (n.x,PW-l/3) pertaining to Village Mangolpur Khurd and Award (lix.PW-1/4) of Village Mohammadpur Munirka of the T.and Acquisition Collector, wherein compensation was assessed while taking into consideration the 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 .lal 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)DR.I(DB) 384; P,N.Singhvs. Union of .A.App.No. 421/2010&ConnectedAppealsofVillagef^asoodabad Page 3 • m India, 1997 1 AD (Del) d.3] Hari Chand vs. Union of India, 91 (2001) D\A' 602; Delhi Development Authority vs. Land Acquisition Collector & Ors., 130(2006) DT 1(DB); Atnia Singh (died) through LRs w. 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 Union of India & Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs &. Ors. vs. Union of India & Anr., 2004 VIIl AD (SC) 37; Om Prakash State of Haryana & Ors, 201 1 IV AD (SC) 382; Sagunthala

(dead) through LRs v-v. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thirthkar i'.v. State of Maharashtra, AIR 2009 SC 2238, to assert that the compensation claimed in 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 Lhc Apc\ ('ourt in decision in Lai Chand vs. Union of India and Anr,, (2009) !5 SCC 769. It was also urged by learned counsel for the respondenisthai despite Village Masoodabad being declared to be urbanized, the acquired land in question continued to be used as agriculturalland and therefore, instances of Village Mangolpur Khurd and Village Mohammadpur Munirica are ol no avail and the instance of allotment of land by DDA in iavour of Delhi Jal Board cannot be treated to be lepiesentativeprice of the lands in the vicinityas the evidenceis lacking regarding said instances to be comparablefor determiningthe market value of the land in question.Reliancewas placed upon decisionof the Apex Court in Satpal& Ors. Vs. Union ofIndia, (1997) 11SCC 423 assert that it in a short period there is a sharp increase in price, than ihe usual pievalcnttrend in the market, such an ijistancecannot be taken as ^A.App. No. 421/20-10&ConnectedAppealsofVillageMasooclaload Page4 / realistic price unless and iintil 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 acquii'ed 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 evidenceshowing increasein the marketprice ol the land in questiontill its acquisition.It is asserted that doing away of classificationof acquired lands in question by Reference Court is illogical and without any justification. 'I'hus, setting aside of the impugnedjudgment and restoringof the Award of the Land Acquisition Collector is sought by the I'espondents.

¶10factors and test to determinethe true marketvalue of the 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 detennmlng the market value of the acquired land and as laid down in Shaji Kuriakose v. Indian Oil Corpn. Ltd.,

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

(I) the sale must be a genuine transaction; (2) the sale deed must have been executedat the time proximate to the dale of issuanceof notificationunder Section 4 of the Act: (3) .A.App. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page5 • frs u the land coveredby.(he safe nmsi be 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 he com.parable.to the acquired land. The sales instancesshouldpreferablybe closestto the date of the notificationas then alone it would satisfy the touchstoneof theprinciplescontemplatedunderSection 23 of the Acl\ as held, in Kanwar Singh v. Union of India

(1998)8 see 136." ' ' '

¶11Having 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 madequacy 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, puipose lor which the acquisition is made is an important factor, 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 reasonablycapablc 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 mAtma Singh (supra). It is in this context, 1have scrutinizedthe evidence on record and I find that there is hardly any evidence regardingthe topographyof the area adjoining the acquired land mquestionand the evidenceled regardingthe aks shizra(Hx.PW-2/1) of this villagedoes not throw any light on this vital aspect, cxcept that the evidence led to prove this documentadversely reflects that on the easternside of VillageMasoodabad,there is Najafgarhdrain, which l.A.App,No.,421/2010&ConnectedAppeal.sofVillagoMasoodabad Page 6 •/ fi/ instead of enhancingtlie,potentiality,rather diminishesit. The witness who was got examined to prove the ah, Mzra of Village Nangl, sakra^ali(Ux.PW-4/1)coneedes,thatthe metalledroad betweenVillage Nangli Sakrawati and Village Masoodabadis not reflected in the aks shizm.Evidenceofthis witness.(PW-4)insteadofadvancingthe caseof the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredland in question.

¶13Thereis no evidenceto establishthe comparabilityofthe acquired landsunderAward(Ex.PW-1/3)pertainingto VillageMangolpwKhurd and under Award (Ex.PW-1/4)ofVillageMohammadpwMunirkawith , the acquired land in question.Rather,as per evidenceofthe concerned official (PW-10), Award (Ex.PW-10/1)pertainedto West Patcl Nagar for Metro Project. Thus, in the con.sidered opinion oi thus Court. ReferenceCourthas rightlyexcludedtlie aforesaidAwards (Kx.PW-1/3 &Hx.P'W-1/4)to determinethe fair marketvalueofthe acqtiiiedland in question.Selfservingdepositionof claimantsregardingpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is not enoughto return positivefindingon this crucialaspect,particularly in view ofthe fact that evidenceregardingindustriesbeingthere in the vicinityofacquiredlandsis lacking.

¶14So far as the DelhiJal Boardinstance(Ex.PW-4/1)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 distancetrom the said land to the land in question.Therefore,ReferenceCourt has iightly not reliedupon the DelhiJal Boardinstance(Ex.PW-4/1).

¶15It has conie hi evidenceofthe appellants/clamiantsthatthere is no Governmenthospitalor collegein VillageMasoodabadand the evidence l,A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 7 I-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 tailed 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 oi" indicative price of agricultural lands by Government of NCf 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 admittedlyundevelopedand 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 Kiddeep Singh (supra).

¶17Regarding increase of 10% per annum over and above the minimum indicativeprice fixed by Governmentof NCT of I'^elhi, 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 375. This Court finds that the .A.App.No. 421/2010 &ConnectedAppealsofVillageMasoodabad Page 8 ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10% per annum while relyingupon the decisionin Harpat(supra). IcS. In the light of the fore-goingnarration,\ find no infirmity in the impugnedJudgment mwhich fair compensationhas been assessed in respectof the acquiredland in question.ReferenceCourthas rightlynot classified the acquired land in question into 'A' category and 'B' category, as Land AcquisifionCollectorin the Award in quesfion 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 directed to remit the compensationamount, if any, depositedby citherside with the RegistrarGeneral of this Court, lo the concerned Reference Court. March 14, 2012 pkb I^A.App.No. 421/2010 & UNI.L GAUR) JUDGE Page 9

+ % IN THE HIGH COURT OF DELHI AT NEW DELHI LA.APP. 865/2010 UNION OF INDIA Through: versus SATISH KUMAR & ANR Through: Reserved on : February 08, 2012 Pronounced on : March 14, 2012 Appellant Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathalc,Ms.K.Kiran Pathak, Mr.Surya Nath Pandey, Mr.Yeeshu Jain and Ms.Navlin Swain, Advocates for LACAJOI Respondent 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