Vikas Popli v. Union of India & 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. IN THE HIGH COURT OF DELHI ATNEW DELHI Reservedon : February08, 2012 Pronouncedon :March 14, 2012 1A.APP.421/2010(VILLAGEMASOODABAD) SURKSHPRASADaliasHARIKISHAN Appellanl Through: Mr.B.D.Sharma,Mr.S.K.Rout, Ms.SukhdaDhamijaand Mr.B.K.Routray,Advocates versus UNION 01' INDIA &ANR. Through; Respondents Mr.SanjayPoddar,SeniorAdvocate with Mr.SanjayPathak,Ms.K.Kiran Pathak,Mr.SuryaNath Pandcy, Mr.YeeshuJain and Ms.Navlin'Swain Advocatesfor I.AC/UOI • No. 421/2010 -No. 443/2010 •No. 455/2010 No. 458/2010 No. 462/2010 No. 465/2010 No. 469/2010 No. 478/2010 No. 584/2010 ^^^o7n)TZ72(nt I'A.App LA.App LA.App. LA.App. lA.App. lA.App. I-A.App. LA.App. tA.A^p. (la.a^ AND LA.App LA.App LA.App, LA.App. LA.App. LA.App. LA.App I^App A.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 I'A.App. No LA.App; No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App.No.I 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 APPHALSFILIiDBY UNION OF INDIA LA.App. No. 746/2010 LA Ann No 5Q/70I9 r a a '-A.App.No. 747/2010 LA.App No' 748/7mo ' r-A.App.No. 751/2010 LA App No'TO/M O ^49/2010 ^v./vpp.No. 75j/2010 LA.App.No. 754/2010 Page 1 f: % r.A.App. No. T.A.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. 755/20] 0 LA.App. No. 756/2010 859/2010 LA.App. No. 860/2010 862/2010 LA.App. No. 863/2010 866/2010 LA.App. No. 867/2010 869/2010 LA.App. No. 267/2011 21/2012 LA.App. No. 56/2012 LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. 858/2010 861/2010 865/2010 868/2010 752/2010 (Relating to NotificationNo. F.7/60/2001/L&B/LA/MRTS(S/W)/7674 of05.08.2003issuedunder Section4 ofthe Land AcquisitionAct, 1894 &AwardNo. 5/2005-06ofVillageMasoodabad,Delhi) COl^M: HON'BLE MR. JUSTICE SUNIL GAUR ORDER

14.03.2012

¶1VoY •Najafgarh Depot, MKTS Project',610 bighas and 13 biswas . of land of Village Masoodabad was acquired vide Notificationof 5"' August, 2003 under Section4 ofthe Land AcquisitionAct, 1894 which was followed by Notificationof8"' August,2003 under SecUon6 ofthe LandAcquisitionAct, 1894 resultingin passingofAwardNo.5/2005-06 grantingcompensafionat the rate of Rs.15.70 lacs per acre on the basis of indicativeprice fixed by the Governmentof NCT of Delhi for the agricultural lands in Delhi.

¶2In the reference sought by the claimants, interest @10% per annum was grantedby the ReferenceCourt for the period of two years, i.e., Irom the date of fixing of the minimum agriculturalpricc upto the date of Notification, i.e., compensation amount stood enhanced to Rs.18,84,000per acre for the acquiredland in question. In the instantappeals,furtherenhancementof Rs.50 lacs per acre is soughtby the claimants,whereasthe respondentin theirappealshave sought settingaside of the impugnedorder of the ReferenceCourt and restorationof the Award. Since the grounds urged in these appeals is lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 2 ' (.1 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. " 5. During the course of hearing, it was pointed out by learned counsel for the appellants/claimants that Village Masoodabad was urbanizedin the year 1963 and zonal developmentplan was preparedby Delhi DevelopmentAuthorityin the year 1974 and the acquisitionof the land in questionwas for the proposedresidentialpurpose.Much reliance was placed upon Award (Ex.PW-1/3)pertainingto Village Mangolpur Khurd and Award (Ex.PW-1/4)of Village MohammadpurMunirka 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 Dclhi-Najafgarhmetalled road and in the adjoiningVillageNangli Sakrawati,there arc industries and NajafgarhIndustrialArea is in the vicinity.

¶6Accordingto the learned counsel for the appellants/claimants,the best pieceofevidence,i.e. allotmentoi land in VillageMasoodabadand Najafgarhby DDA to Delhi Jal Board at the rate of Rs.20 lacs per acre in the year 1993 has been illegallydiscarded by the ReferenceCourt. Reliance is placed upon the decisions reported in Tindey & Ors. Vs. UnionofIndia&Anr, 2000(54)DRJ(DB) 384; RN.Singhvs. Unionof LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page .3 ...J , India, 1997 I AD (Del) 83; Hari Chand vs. Union of India, 91 (200.1) DLT 602, DelhiDevelopmentAuthorityvs. LandAcquisitionCollector

¶6Ors., 130(2006)D1 1(DB);AtmaSingh (died) throughLRs v.?. 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. vs. Union ofIndia & Anr., 2004 VIII AD (SC) 37; Om Prakash va". 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 Counselfor the respondentsthat adoptionofthe auctionrates ofDDA or L&DO rates in respectof agriculturalland stands negated by the Apex Court in decisionin Lai Chand vs. 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 acqun-ed land in questioncontinuedto be used as agriculturalland and therefore, instances of Village Mangolpur Khurd and Village MohammadpurMunirkaarc of no 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 regardmg said instances to be comparablefor determiningthe market value ofthe land mquestion.Reliancewas placed upon decisionofthe Apex Courtin Satpal&Ors. Fs. UnionofIndia,(1997) 11 SCC 423 to assertthat if in ashortperiodthere is asharp increasein price, than the usual prevalenttrend in the market,such an instancecannot be tak( cen as 'A APP-N"- 421/2010l^ectedAppealsof Page 4 V"..' fr realistic price unless and until the reasons for such shaip rise are explainedand there is no explanationto justifythe adoptionofDelhi Jal Board instance to determinethe market value of the acquired land in question.

¶8As regards the potentialityof the acquired land in question is concerned,it is contendedby learnedSeniorcounsel 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/claimantsare distinguishableon facts.

¶9In the appeals preferred by the respondents,enhancementin the compensationamountis assailedon the groundthat the annual increase to be given is dependentupon the nature of evidence led and in the instantmatters,there is no evidenceshowingincreasein the marketprice of the land mquestiontill its acquisition.It is assertedthat doing away ol classificationof acquired lands in question by Reference Court is illogical and without any justification. Thus, setting aside of the impugnedjudgmentand restoringofthe Award of the Land Acquisition Collectoris soughtby the respondents.

¶10factorsand testto determinethe true marketvalueofthe acquired land have been restated by the Apex Court in its recent decision in Radha Mudaliyar vs. Special TehsUdar (Land Acquisition) Tamil NaduHousingBoard,(2010) 13 SCC 384, in thesewords:- Compamble sales instances are the safest methodfor determiningthe market value ofthe acquiredland and as laid down in Shaji Kuriakose v. Indian Oil Corpn. Ltd.,

(2001) 7SCC 650, it shouldsatisfythefactors, inter alia,

(1) the salemust be agenuinetransaction;(2) the saledeed must have been executedat the time proximateto the date oj issuanceofnotificationunder Section 4of the Act; (3) LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 5 the land covered by the sale must be in the vicinity of the acquired land; (4) the land covered by the sale must be similar to the acquired land; and (5) size of the plot of the land covered, by the sale be comparable to the acquired land. The sales instances should,preferably be closest to the date of the notification as then alone it would satisfy the touchstone of the principles contemplated under Section 23 of the Act, as held in Kanwar Sin^h v. Union of India,

(1998)8 see 136." 1I. Having heard learned counsel for 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 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 lact 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 furtherextensionand 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 regardingthe topographyof the area adjoining the 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 documentadversely reflects that on the easternside of VillageMasoodabad,there is Najafgarhdrain, which lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 6 v:.-- yr.y insteadof enhancingthe potentiality,rather diminishesit. The witness who was got, examined to prove the aks shizra of Village Wang/i Sakrawati(i;x.PW-4/l)concedesthatthe metalledroad betweenVillage Nangli Sakrawatiand VillageMasoodabadis not reflectedin the aks shizra.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 VillageMangolpurKhurd and under Award (Ex.PW-1/4)ofVillageUohammadpurMuniricawith the acquiredland in question.Rather,as per evidenceof the 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(F.x.PW-1/3 &Ex.PW-1/4)to determinethe fair marketvalueofthe acquiredland in question.Selfservingdepositionof claimantsregardingpotentialityof acquiredlands in question,in the absenceof corroborativeevidence,is not enoughto return positive findingon this crucial aspect,particulaily in view of the fact that evidenceregardingindustriesbeing there in the ^ vicinityofacquiredlandsis lacking.

¶14So 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 respect of this transactionhas concededthat he is not able to tell the distancefrom the said land to the land in question.Therefore,ReferenceCourt has rightly not reliedupon the DelhiJalBoardinstance(Ex.PW-4/1).

¶15It has come in evidenceofthe appellants/claimantsthat there is no Governmenthospitalor collegein VillageMasoodabadand the evidence LA.App.No-. 421/2010&ConnectedAppealsofVillageMasoodabad Page7 €} regarding the acquired land in question being surrounded b}' 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 agriculturalpuipose 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 acquiredland in questionwere beingused for agriculturalpurposeby the appellants/claimantsand so, adoptionof 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 Notification under Section 4 of the Land AcquisitionAct, 1894. Such a view is beingtaken as the acquiredland 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 Kuldeep Singh (supra).

¶17Regarding increase of 10% per annum over and above the minimum indicativeprice fixed by Governmentof NC1' 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 1AApp. No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 8 o •. .•! ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10% perannum wliilerelyingupon tlie decisionin Harpat(supra).

¶18In the light ofthe fore-goingnarration,Ifind no infirmityin the impugnedjudgment in which lair compensationhas been assessed in respectol the acquiredland in question.ReferenceCourthas 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 classificationof 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. Ifany, depositedby eitherside with the RegistrarGeneralofthis Court, to the concernedReferenceCourt. March 14, 2012 picb ' A.App. No. 421/2010¥^n"octedAppeals Masoodabad 5UNILGAUR) JUDGE Page 9

£-• IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 + LA. AFP. 1012/2010 % VIKAS POPLI ..... Appellant Through: Mr.B.D.Sharma, Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates versus UNION OF INDIA & ANR Through: Respondent 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 (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