Gulshan 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 of India & Anr. JUDGE March 14,2012 pkb 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.

1.A.App. No. 421/2010 l.A App. No. 443/2010

1.A.App. No. 455/2010 l\.App No. 458/2010 LA.App. No. 462/2010 l.A.App. No. 465/2010 I A . 'PP. No, 469/20 1 0 A . A pp. No. 478/2010 LA.App. No. 5841/2010 l.A . pp. No. 101 2/201 0 L-1 N THE HiGH COL.JRT OF .l)ELL1J AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 I A .APP.42 1 /201 0 (VILLAGE MASOODAI3AJ)) SURIS11 PRASAI) alias i :L\RJ KISI-TAN.. .... .Appellant Through: Mr.13.D.Sharma, Mr.S.K.Roui, Ms.Sukhda Dhamija and Mr.B.K..Routray, A(lvocatcs versus ."No UNIoN OF 1NI)IA & ANR. Respondents lhrough: 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 f'or LAC/lJOi AND LA.App. No. 441/2010 JA App. No, 442/2010 I No. 444/2010 l.A .App. No. 446/2010 LA.Anp. No. 456/2010 1 '\ .App. No. 457/20 I () I .A.App. NC). 4591/2010 LA. App. No. 460/2010 I A.App. No. 463/2010 1 A App. No 464/2010 LA.App. No. 467"2() 10 LA.A pp. No. 468/2010 LA..App. No. 470/2010 LA.App. No. 471/2010 I A App No 80/ 2)10 1 A App Jo 8 L2 () LA.App. No. 585/2010 V.App.No. 1011/2(10 NC). 12/2012 AND APPEALS FIIJ/-I) BY UNION OF INDIA I .A.App. No. 746/2010 LA.App. No. 59/2() 12 Li\.App. No. 710/2011 J. I A.App. No. 747/2010 A.App. No. 748/2010 LA.Apj No. 749/2010 l../\.App. No. 751 /2()10 LA.App. No. 753/2010 L/\,App. No. 754/2(,I10 .A.App. No. 421/2011) &. Connected Appeals of Village M'sooda1)ad Page 1 / LA.App. No. 755/2010 l.A.App. No. 859/2010 LA.App. No. 862/201.0 LA.App. No. 866/2010 LA.App. No. 869/2010 LA.App. No. 21/20 12 .LA.App. No. 756/2010 LA.App. No. 860/2010 LA.App. No. 863/2010 LA.App. No. 867/2010 LA.App. No. 267/20.11 LA.App.No. 5 6/20 12-LA.App.No. 858/2010 LA.App. No. 861/2010 LA..App. No. 865/20 1.0 i.A.App. No. 868/2010 LA.App. NC). 752/2010 4i (Relating to Notification No. F.7/60/200 I /L&B/LA/MRTS(S/W)/7674 of 05.08.2003 issued under Section 4 of the Land Acquisition Act, 1 894 & Award No. 5/2005-06 of Village Masoodabad, Delhi) CORAM: UON'BLF: MR. JUSTICE SUINIL GAUR ORDER. .14.03.2012

1.. For 'Najafgarh Depot, MI?TS Project', 610 bighas and 1.3 biswas of land of Village Masoodabad was acquired vide Notification of 5' August, 2003 under Section 4 of the Land Acquisition Act, 1 894 which was followed by Notification of 8 August, 2003 under Section 6 of the l,.and Acquisition Act, 1894 resulting in passing of Award No.5/2005-06 granting compensation at the rate of Rs.1. 5.70 lacs per acre on the basis of' indicative price fixed by the Government. of NC1' of Delhi for the agricultural lands in T)elhi. In the reference sought by the claimants, interest @1 O% per annum was granted by the Reference Court fir 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. in the instant appeals, further enhancement of Rs.5() 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. 421/2010 & Connected Appeals of Village Masoodahad Page 2 % 4ft I comm on, therefore, by this common order, these appeals are being disposed of. On 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 l)l)A while allotting alternative plots is a valid basis to arrive at true market value of the acquired land in question. J)uring 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 I)evelopment Authority in the year 1974 and the acquisition of the land in question was for the proposed residential purpose. Much re! iancc was placed upon Award (Fx.PW 1/3) pertaining to Village Mangolpur Khurd and Award (Fx.PW-1/4) of Village Mohammadpur Munirka of • the Land 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 1)elhi-Najafgarh metalled . road and in the adjoining Village Nangli Sakrawati, there are industries and Najafgarh Industrial Area is in the vicinity.

¶6According to the learned counsel for the appellants/clajmajits.tlie best piece of evidence, i.e. allotment of land in Village Masoodabad and Najafarh by I)I)A to 1)elhi JaI 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 Tindep & Ors. Vs. Union o/ India & Anr, 2000(54)DRJ (1)13) 384 P.NSingIi vs. Union of LA.App. No. 421/2010 & Connected Appeals of Village Masoodabad Page 3 / I vz india, 1997 1 Al)

(I)el) 83 Hari Cliand vs. Union of India, 91. (2001) DL].' 602; Delhi Development Auihonitp vs. Land A cquisition collector & Ors., 1 30(2006) fYI' 1(1)13); Atina Sing/i (died) through LRs i's. State )tJI'II1WiI 1 a & Ann., AIR 2008 SC 709; Mahabir Prasad Santuka and Ons. Vs Go//ector, Cu/tack and Ors., (1987) I SCC 587; T/iakur Ru/deep Sing/i (D) Thr. L.R. & Ors vs. Union of India & Ors., AIR 2010 SC 1272; Urn Prakash (D) 4v L.Rs & Ors. vs. Union of India &. ,4nr., 2004 VIII Al) (S(") 37; Urn Prakasi, i's. State of 1-Jaryana & Ors, 2011 IV Al) (SC) 382; Sagunthala (dead) through LRs vs. Special Tehsiidar (L.A.) and ors., AIR 2010 SC 984; Mahesh Dattatray T/iirthkar vs. State of Maharashtra, AIR 2009 SC 2238, to assert that the cornpensaton claimed in these appeals is just and reasoab]e.

¶7On behalf of the respondents, it was asserted by learned Senior Counsel for the respondents that adoption of the auction rates of 1)DA or i L&DO rates in respect of agricultural land stands negated by the Apex Court in decisjon in Lal c/Wild vs. (Inion of India (hid Ann., (2009) 5 SCC 769. It was also urged by learned counsel for the respondents that despite Village Masoodahad being declared to be urbanized, the acquired land in question continued to be used as agricultural land and / therefore, instances of Village Mangolpur Khurd and Village . •Mohammadpur Munirka are of no avail and the instance of allotment of land by I)I)A in favour of i)elhi Jal Board cannot be treated to he representative price of the lands in the vicinity as the evidence is lacking regarding said instances to he comparable for determining the market value OF the l4nd in question. Reliance was placed upon decision of the Apex Court in Satpal & Ors. V. Union of India, (1 997) 1 1 SCC 423 to assert that if in a short period there is a sharp iiic•ea.Sc in price, than the usual prevalent trend in the market, such an instance cannot be taken as LiApp.N o. 421 / Masoodaha d Page 4 / I Y I ~ 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. As 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 plaôe 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. In the appeals preferred by the respondents, enhancement in the Go 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. U is asserted that doing away of classi!cation of acquired lands in question by Reference Court is illogical and without any justification. 'I'hus, settng aside of the impugned judgment and restoring of the Award of the Land Acquisition Collector is sought by the respondents. Factors and test to determine the true market value of the acquired ob Radha Mudaliar i's. Special Tehslldar (Land Acquisition) Thrnil land have been restated by the Apex Court in its recent decision in Nadu Housing Board, (2010) 13 SCC 384, in these words:- "Comparable sales instances are the saftst method for determining the market value of the acquired land and as laid down in Shaji Kuriakose v. Indian Oil Corpii. Ltd..

(2001) 7 SCC 650, it should satisfy tHe fOctors, inter a/ia,

(1) the sale must be a genuine transaction, (2) thes ale deed must have been executed at the ti/ne proximate to the date of issuance of notification under Section 4 of the Act; "3) lA.App. No. 421/2010 & Connected Appeals of Village Masoodahad Page 5 > the land covered hr the sale must be in the v/cm liv of the acqu.red land; (4) the land covered of the sale must he similar to the acquired land: and (5) size of the plot of the land covered of the sale be comparable to the acquired land The sales instances should pre/rah/y he closest to the date of the notl/tcation as then a/one it woulcis atzs/v the touchstone of the principles conic/np/cited under Section 23 of the 4c1, as he/c! in Kanwar Singh v. Union of India,

(1998)8 SCC 136." H. 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/claimants have been sLiccessful in discharging this burden or ii ot.

¶12No doubt, purpose for which the acquisition is made is an important factor, but the question as to whether the acquire.d land has potential value or not, is primarily one of fact depending upon its condition, situation, user to which it is put or is reasonably capable of • being put and proximity to residential, commercial or industrial or institutional area. The existing amenities like water, electricity, possibility of their further extension and the prospects of development in the area have to he taken into consideration, it has been so reiterated by the Apex Court in Atnu, Sing/i (supra). It is in this context, 1 have scrutinized the evidence on record and I lind that there is hardly any evidence regarding the topography of the area adjoining the acquired land in qustioii and the evidence led regarding the aks shizra (E. PW-2/1.) of this village does not throw any light on this vital aspect, except that the evidence led to prove this document adversely reflects that on the eastern Side of \/i]lagc /\iasooc/ahad, there is Najalarh drain, which LA.App. No.421/2010 &. Connected Appeals of Village Masoodahad Page 6 \'L-V / instead of enhancing the potentiality, rather diminishes it. The witness who was got examined to prove the aks shizra of Village Nangli Sakrawaii (Ex.PW-4/l) concedes that the metalled road between Village Nangli Sakrawati and Village Masoodabad is not reflected in the aks shizra. Evidence of this witness (PW-4) instead of advancing the case of the appellants/claimants regarding the potentiality, reduces the potentiality of the acquired land in question.

¶13There is no evidence to establish the comparability of the acquired lands under Award (Ex.PW-1/3) pertaining to Village Mangolpu r r Khud and under Award (Ex.PW-1/4) of Village Alfohainivadpur Munirka with the acquired land in question. Rather, as per evidence of the concerned official (PW-lO), Award (Ex.PW-lO/i) pertained to West Patel Nagar for Metro Project. Thus, in the considered opinion of this Court, Reference Court has rightly excluded the aforesaid i\wards (h.PW-i/3 &. Ex.VW-1/4) to determine the fair market value of the acquired land in qustion. Self serving deposition of claimants regarding potentiality of acquired lands in question, in the absence of corroborative evidence, is not enough to eturn positive fin4ing on this crucial aspect, particularly irt view of the fact that evidence regarding industries being there in the vicinity of acquired lands is lacking.

¶14So far as the Delhi Jal i3oard instance (i.x.PW-4/1) is concerned, I find that even its comparability with acquired land in question is not established as the witness (PW-5) who has deposed in respect of this transaction has conceded that he is not able to tell the distance from the said land to the land in question. Therefore, Reference Court has rightly not relied upon the Delhi Jal Board instance (Ex.PW-4/1).

¶15It has come in evidence of the appellants/claimants that there is no Government hospital or college in Village Masoodabad and the evidence ... -•.. LA.App. No. 421/2010 & Connected Appeals of Village Masoodabad Page 7 regarding the acquired land in question being surrounded by developed colonies is lacking. In the face of Such dcflcient evidence, there is no 7 , to 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 thiled 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 Pvlasoodabad 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 Acquisition Act, 1894. Such a view is being taken as the acquired land in question was admittedly undeveloped and therefore, adoption of DJJ4 auction rates or L&DO rates is not permissible in view of the dictum of the Apex Court in La! G/iand (supra), which has been quoted with approval by the Apex Court in its latest decision in Thakur Ku/deep Sing/i (s u pra).

¶17Regarding increase of 10% per annum Over and above the minimum indicative p1-ice fixed by Government of NCT of Delhi, the same cannot he assailed by the respondent as the Reference Court has done so while relying upon decision of the Apex Court in Union qf Ind,a vs. Harpat, (2009) 14 SCC 375. This Court finds that the -_ LA.App. No. 421/2010 & Connected Appeals of Village Masoodahad Page 8 H' S ReThrence Court was justified in granting the aforesaid increase of I G°A per annum while relying upon the decision in ilarpat (supra). 18 . In the light of the fore-going narration, I find no infirmity in the impugned judgment in which fair compensation has been assessed in respect of the acquired land in question. Rerference Court has rightly not classified the acquired land in question into 'A' category and 'B' category, as Land Acquisition Collector in the Award in question has unequivocally stated that no classification of the acquired land is required to be done as the acquired land is leveled. 1 9. Consequentially, the appeals of the a,- .)pellal-Its/claimants as well as appeals of Union of India are dismissed, while iea\/ing the parties to bear thei.r own costs. Registry is directed to remit the compensation amount, if any, deposited by either Side with the Registrar General of this Court, to the concerned Re ferc.nce Court. - çtJNJL GAUR) March 14, 2012 JUDGE pl<b nA.App. No. 421/2010 &. Connected Appeals of Village Masoodahad I age)

* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: February 08, 2012 Pronounced on : March 14, 2012 + LA.APP. 1013/2010 GULSHAN POPLI Appellant Through: Mr.B.D.Sharrna, Mr.S.K.Rout, Ms.Sukhda Dhamija and Mr.B.K.Routray, Advocates versus UNION OF INDIA & ANR Respondent Through: 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