Union of India v. Rakesh Kumar

ORDER %

14.03.2012

¶1For 'NajafgarhDepot, MKTS 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 followed by Notificationof 8"' August, 2003 under Section 6 of the Land AcquisitionAct, 1894 resultingin passingofAward No.5/2005-06 grantingcompensationat the rate of Rs.15.70 lacs per acre on the basis of indicative pricc fixed by the Governmentof NCT of Delhi for the agricultural lands in Delhi.

¶2In the reference sought by the claimants, interest (2^)10% per annum was granted by the ReferenceCourt for the period of two years, i.e., from the date of fixing of the minimum agriculturalprice upto the date of Notificafion, i.e., compensation amount stood enhanced to Rs.l8,84,000per acre lor the acquiredland in question. j. in the instantappeals,furtherenhancementof Rs.50 lacs per acre is sought by the claimants,whereasthe respondentin their appeals have sought setting aside of the impugned order of the ReferenceCourt and restorationof the Award. Since the grounds urged in these appeals is • l-A.App.No. 421/2010&ConnectedAppealsofVillageMa.soodaba(l Page 2 t) </ . - II common, therefore, by this common order, these appeals arc being disposed of

¶4On behalfof the appellants/claimants,il is urged thai the learned ReferenceCourt has wrongly treated acquired lands as agriculturalland and did not appreciatethe potentialityof the acquired land as building site and assessment.ofthe compensationin respectofthe acquired land ought to have been made on the basis of the average auction rate of residentialand commercialplots in Dwarkaand the rates chargedby the DDA while allotting alternativeplots is a valid basis to arrive at true marketvalueof the acquiredland in question.

¶5During the course of hearing, it was pointed out by learned counsel for the appellants/claimantsthat Village Masoodabad was urbanizedin the year 1963 and zonal developmentplan was prepared by Delhi DevelopmentAuthorityin the year 1974 and the acquisitionof the land mquestionwas for the proposedresidentialpurpose. Much rcliancc was placed upon Award (ltx.PW-1/3)pertainingto Village Mangolpur Khurd and Award (ILx.PW-lM)of Village MohammadpurMunirka of the I.and Acquisition Collector, wherein compensation was assessed while taking into considerationthe i:&DO rates. It is pointed out that some parcel of acquired land abuts the main Delhi-Najafgarhmetalled road and in the adjoiningVillage Nangli Sakrawati,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 Masoodabadand Najafgarhby DDA to Delhi .lal Board at the rate of Rs.20 lacs per acre in the year 1993 has been illegallydiscarded by the Reference Court. Reliance is placed upon the decisions reported in Tindey &Ors. Kv. UnionofIndia&Anr, 2000(54)DR.I(DB) 384; P.IW.Singhvs. Unionof No. ^^1112010& India, 1997 I AD (Del) 83; Hail Chand vs. Union ofIndia, 91 (2001) 1)1;r 602; Peihi DevelopmentAuthorityvs. LandAcquisitionCollector &Ors., 1j0(2006)D1 1(DB);AtniaSingh (died) through LRs rv. State of Haryana & Anr., MR 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 rv. Union ofIndia & Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs & Ors. w. Union ofIndia & Anr., 2004 VIII AD (SC) 37; Om Prakashvs. StateofHaryana&Ors, 2011 IV AD (SC) 382; Sagunthala(dead) through LRs vs. Special Tehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray Thirthkarvs. State ofMaharashtra,AIR 2009 SC 2238, to assert that the compensationclaimedin theseappealsis justand reasonable.

¶7On behalfof the respondents,it was asserted by learned Senior Counsel for the respondentsthat adoptionofthe auctionrates ofDDA oi" L&DO rates in respectof agriculturalland stands negated by the Apex Court in decisionin Lai Chandw. Union ofIndiaandAnr., (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, mstances of Village Mangolpur Khurd and Village MohammadpurMunirkaare ofno avail and the instanceofallotmentof land by DDA in favour of Delhi Jal Board cannot be treated to be representativepriceofthe lands in the vicinityas the evidenceis lacking regardingsaid instances to be comparable for determiningthe market value of the land in question.Reliancewas placed upon decisionof the Apex CourtmSatpal&Ors. Vs. UnionofIndia, (1997) 11SCC 423 to assertthat if in ashort period there is asharp increasein price,, than the usual prevalenttrend in the market,such an instancecannot be taken as• -A.App. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 4 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 ol the acquired land in question is concerned,it is contendedby learned Seniorcounsel for the respondents that no developmentactivitytook place in the vicinitynor any building activity had started in the adjoiningareas 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 ofthe land in questiontill its acquisition.It is assertedthat doing av\'ay ol classificationol' acquired lands in question by Reference Court is illogical and without any justification. Thus, setting aside of the impugnedjudgmentand restoringofthe Award ofthe Land Acquisition Collectoris sought by the respondents.

¶10Factorsand test to determinethe true marketvalueofthe acquired land have been restated by the Apex Court in its recent decision in Radha MudaUyar vs. Special TehsUdar (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 acquiredland and as laid down in Slwji Kuriakose v. Indian Oil Corpn. Ltd.,

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

(I) the sale must be a genuinetransaction:(2) the saledeed must have been executedat the time proximateto the date ofissuanceofnotificationunder Section 4 ofthe Act; (3) \A. App. No. A21I2Q1Q&ConnectedAppealsofVillageMasoodabad Page5 E the land coveredby the sale musi he in the vicinilvof the acquired kind; (4) the land covered hy the sale mii.sl he similarto the acquiredland: and (5) size of the plot ofthe land covered hy the sale he comparable to the acquired land, line sales instancesshouldpreferahlyhe closestto the date of the notificationas then alone it would satisfy the touchstone of the principles contemplated under Section 23 of the Act, as held in Kamvar Sin^h v. Union of hidia

(1998)8 see 136."

¶11Ilaving 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 successful in dischargingthis burden or not.

¶12No doubt, purpose for 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 reasonablycapable of being put and proximity to residential, commercial or industrial or institutional area. The existing amenities like water, electricity, possibilityoftheir iiirtherextensionand the prospectsofdevelopmentin the area have to be taken into consideration.It has been so reiteratedb the Apex Court mAlma Singh (supra). It is in this context, 1he scrutinizedthe evidence on record and I find that there is hardly any evidence regarding the topographyof the area adjoining the acquii'cd land in questionand the evidenceled regardingthe aks shizra (Rx.PW-2/1) of this village does not throw any light on this vital aspect, except that the cvidcncc led to prove this documentadversely renects that on the easternside oi VrllageMasoodabad,there is Najafgarhdrain, which ave I'A-App-No. 421/2010&ConnectedAppealsofVillageMa.soodabad instead of enhancingthe potentiality,rather ditliinishesit. The witness who was got exatnined to prove the aks share, ol' Village NansU Saknimili(l-;x.PW-4/l)concedestiiatthe metalledroad betweenVillage Nangli Salcrawatiand Village Masoodahadis not reflected in the ah Mzra.Evidenceofthis witness(PW-4)insteadofadvancingthe case of the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredland in question.

¶13There is no evidenceto establishthe comparabilityofthe acquired lands underAward(Ex.PW-1/3)pertainingto VillageMangolpwKlnird and under Award (Ex.PW-l/4)of Village MohanvnadpurMimirkawith the acquiredland in question.Rather, as per evidenceof the concerned olTicia'l (PW-IO), Award (Fix.PW-IO/l)pertained to West Patel Nagar for Metro Project. I'hus, in the considered opinion ol this Court, ReferenceCourthas rightlyexcludedthe aforesaidAwards(Ex.PW-1/3 & F.x.PW-l/4).todeteriTiinethe fair marketvalue ol the acquiredland in question.Selfservingdepositionof claimantsregardingpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is not enoughto return positivefindingon this crucial aspect,particularly in view of the fact that evidenceregardingindustriesbeing thei'e in the vicinityofacquiredlands is lacking.

¶14,So l^r as the DelhiJal Boardinstance([•x.PW-4/1) is conccrned, 1find that even its comparabilitywith acquired land in question is not establishedas the witness (PW-5) who has deposed in respect of this transactionhas concededthat lie is not able to tell the distancefrom the said land to the land in question.Therefore,ReferenceCourt has lightly not reliedupon the DelhiJal Boardinstance(Lx.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthatthere is no Governmenthospitalor collegein VillageMasoodabadand the evidence LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabatj Page7 W" ;W regardingliic acquired land in question being surroundedby developed colonics is lacking. In the facc of such deHcient evidence, there is no scope for enhancementof compensationin the instant appeals. Such a conclusion is being drawn while keeping in view the ratio of the piecedents cited. Having tailed to establish the potentiality of the acquired land in question, the appellants/claimantshave to remain content with the assessment of compensation on the basis of the indicativeprice of the agriculturalland by Governmentof NCT of Delhi as undisputedly, the acquired land in question were being used for agriculturalpurposeat the time ofits acquisition.

¶16Upon scrutiny of the evidence on record, it becomes quite apparentthat despite Village Masoodabaclbeing declared as urban, the acquiredland in questionwere being used for agriculturalpurposeby the appellants/claimantsand so, adoption of indicativeprice 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 Notificationunder Section 4 of the Land AcquisitionAct 1894. Such aview is being taken as the acquiredland in question was admittedlyundevelopedand therefore, adoption of DDA auctionrates or L&DO rates is not permissiblein view 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 TltakuvKuldeep Singh (supra).

¶17Regarding increase of 10% per annum over and above the minimum indicativeprice fixed by Governmentof NC'i^ 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. Harpat, (2009) 14 SCC 375. This Court finds that the LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 8 .0 RclcrcnceCourt was justifiedin grantingthe aforesaidincreaseof 10% per annum while relyingupon the decisionjn Harpat(stipra).

¶18hi the light of the fore-goingnarration,I find no infirmityin the impugned judgment in which fair compensationhas been assessed in respectofthe acquiredland in question.ReferenceCourt has rightlynot classified the acquired land in question into 'A' category and ^3' category, as [.and AcquisitionCollector in the Award in question has unequivocally stated that no classification of the acquired land is lequiiedto be done as the acquiredland is leveled. I9. Consequentially,the appealsofthe appellants/claimantsas well as appealsofUnion of hidia arc dismissed,while leavingthe partiesto bear their own costs. Registry is directed to remit the compensationamount, II any, depositedby citherside with the RegistrarGeneralofthis Court, to the concerned Reference Court. ,^"T^NIL GA[JR) JUDGE March 14, 2012 pkb i.A.App.No. 421/2010&ConncctodAppealsofvillageMasooclaT^ ad y

liS 11-fE HIGH COURT'OF DEiJU iN'EVV DELHI Reserved on : February 08, 2012 Pronounced on ; K4arch 14, 2012 LA.APP.421/2010(VILLAGEMASOODABAD) SURl'SI1PRASADalias [lARJ KISMAN Appellani, I'hrough: Mr.B.D.Sharma,Mi-.S.K.Rout, Ms.Sukhda Dhaini ja and Mr.B.K.Roulray, Advocates versus UNION OF- INDIA & ANR. I'hrough: Respondents Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Ms.K.Kiran Pathak,Mr.SuryaNath Pandey, Mr.YeeshuJain and Ms.NavlinSwain, Advocates for I.AC/UOI f-A.App. No. FA.App. No. I.A.App. No. FA.App. No. 1.A.App. No. FA.App. No. I-A.App. No. F.A.App. No. i.A.App. No. 1.A.App.No. 1 421/2010 443/2010 455/2010 458/2010 462/2010 465/201 0 469/2010 478/2010 584/2010 012/2010 AND FA.App. No, FA.App. No. f..A.App. No, FA.App. No, F.A.App. No. F.A.App. No. FA..App. .No. i.A.App. No. FA.App. No. J.A.App.No. 1 441/2010 444/2010 456/201 0 459/2010 463/2010 467/201 0 470/201 0 580/2010 585/2010 013/2010 FA.App. No. 1.A..App. No. FA.App. No, i..A.App, No. ! A.App. No, F,A,App. No. FA.App. No. 1,A.App. No. r.-.A.App.No. 1 FA.App. No. 442/20.! 0 446/201 f) 457/2010 460/2010 464/20! 0 468/201 0 471/2010 583,/2010 Oi l/20i0 12/2012 AND APPJvAI.SFIFFD BY UNION OF INDIA I-A.App.No. 746/2010 FA.App. No. 59/2012 FA.Anp. No. 710/20!1 FA.App. No. 747/2010 LA.App.No. 748/2010 FA.App.No 749P{)\i) I.A.App,No. 751/2010 FA.App. No. 753/2010 F.A.App.No 754/''0!0 ^A.App. No. 421/2010 ConncctcdApponLsof I'ago 1 LA.App.No. 755/2010 LA.App. No. 756/2010 LA.App.No. 858/2010 I.A.App.No. 859/2010 LA.App. No. 860/2010 LA.App. No. 861/2010 LA.App. No. 862/2010 T.A.App.No. 863/2010 I.A.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 LA.App. No. 752/2010 i.A.App. No. 21/2012 LA.App. No. 56/2012 (Relating to NotificationNo. F:7/60/2001/L&B/LA/MRrS(S/W)/7674 of 05.08.2003issued under Section4 ofthe Land Acquisition./\ct, 1894 & Award No. 5/2005-06of VillageMasoodabad,Delhi) CORAM: HON'BLE MR. JUSTICE SUNIL GAUR