Akash 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 JIL 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.APP.421/2010(VILLAGEMASOODABAD) SIJI^HSHPRASADaliasHAI^ KISPLAN ..... 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: Respondents Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Ms.K.Kiran Pathak,Mr.SuryaNath Pandey, Mr.Yecshu Jain and Ms.Navlin Swain, Advocates for LAC/UOI LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. •LA.App. No. I.A.App.No. 1 421/2010 443/2010 455/2010 458/2010 462/2010 465/2010 469/2010 478/2010 584/2010 012/2010 AND LA.App. No. LA.App. No. LA.App. No. LA.App. No. IvA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App. No. LA.App.No. 1 441/2010 LA 444/2010 LA 456/2010 LA 459/2010 LA 463/2010 LA, 467/2010 LA. 470/2010 LA, 580/2010 LA. 585/2010CS" 013/2010 App. No. App. No. App. No. App. No. App. No. App. No. App. No. App. No. .442/2010 446/2010 457/2010 460/2010 464/2010 468/2010 471/2010 583/2010 App.No.jQl 1/2010 • I.A.App. No. 12/2012 AND APPEALS FILED BY UNION OF INDIA LA.App.No. 746/2010 LA.App.No. 59/2012 LA.App.No. 710/2011 ^LA.App.No. 747/201,0 LA.App.No. 748/2010 LA.App.No. 749/2010 LA.App.No. 751/2010 LA.App.No.,753/2010 LA.App.No. 754/2010 I.A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page - % LA.App. No. I.A.App. No. f.A.App. No. LA.App. No. LA.App. No. LA.App. No. 755/2010 LA.App.No. 756/2010 LA.App.No. 859/2010 LA.App. No. 860/2010 F.A.App.No. 862/2010 LA.App.No. 863/2010 LA.App.No. 866/20]0 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 858/2010 861/2010 865/2010 868/2010 752/2010 (Relating to NotificationNo. F.7/60/200]/L&B/LA/MRTS(S/W)/7674 of05.08.2003issuedunder Section4ofthe Land AcquisitionAct, 1894 &Award No. 5/2005-06ofVillageMasoodabad,Delhi) CORAM: 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 Notificationof 5"' August, 2003 under Section4 of the Land AcquisitionAct, 1894 which was followed by Notificationof 8"'^ August, 2003 under Section6 ofthe Land AcquisitionAct, 1894 resultingin passingofAward No.5/2005-06 grantingcompensationat the rate ofRs.15.70 lacs per acre on the basis of indicativepricc fixed by the Governmentof NCT of Delhi for the agricultural lands in Delhi.

¶2In the refcrence sought by the claimants, interest @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 ol .Notification, i.e., compensation amount stood enhanced to Rs.18,84,000per acre for the acquiredland in quesfion.

¶3In the instantappeals, furtherenhancementof Rs.50 lacs per acre IS soughtby the claimants,whereasthe respondentin theirappealshave sought setting aside 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 common, therefore, by this common order, these appeals are being disposed of.

¶4On behalfof the appellants/claimants,it is urged that the learned ReferenceCourt has wronglytreatedacquiredlands as agriculturalland and did not appreciatethe potentialityofthe acquiredland as building site and assessmentofthe compensationin respectofthe acquired land ought to have been made on the basis of the average auction rate of lesidentialand commercialplots in Dwarkaand the rates chargedby the DDA while allottingalternativeplots 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 preparedby Delhi DevelopmentAuthorityin the year 1974 and the acquisitionofthe land in questionwas for the proposedresidentialpurpose.Much reliancc was placed upon Award (Ex.PW-1/3)pertainingto Village Mangolpiir' Khuid and Award (Ex.PW-1/4)of Village MohammadpuriVIumrka 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-Najafgarhmetalled road and in the adjoiningVillageNangli Sakrawati,there are industries and NajafgarhIndustrialArea is in the vicinity.

¶6Accoidingto the learnedcounsel for the appellants/claimants,the best pieceofevidence,i.e. allotmentofland in VillageMasoodabadand Najafgarh.byDDA to Delhi .lal 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; P.N.Singhvs. Unionof I-A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 3 I . //" "i . /• V Oi India, 1997 I AD (Del) 83; Hari Chand vs. Union ofIndia, 91 (200.1) Di;r 602; DelhiDevelopmentAuthorityra. LandAcquisitionCollector &Ors., 130(2006)D1 AtmaSingh (died) throughLRs w. State ofHaryana & 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 ofIndia & Ors., AIR 2010 SC 1272; Om Prakash (D) by LRs &Ors. vs. Union ofIndia & Anr., 2004 VIII AD (SC) 37; Om Prakash vs. 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 auctionratesofDDA 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 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 regarding said instances to be comparablefor determiningthe market value of the land mquestion.Reliancewas placed upon decisionof the Apex Court in Satpal&Ors. Vs. UnionofIndia, (1997) 11 SCC 423 to assertthat it in ashort period there is asharp increasein price., than the usual prevalenttrend in the market,such an instancecannot be taken as I^A.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad 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 contendedby 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 evidenceshowingincreaseinthe marketprice of the land in question till its acquisition. It is asserted that doing away of classificationof acquired lands in question by Reference Court is illogical and without any justification. Thus, setting aside of the impugnedjudgment and restoring of the Award of the Land Acquisition Collector is sought by the respondents.

¶10Factors and test to determinethe true market value 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:- "Co/nparable 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 thefactors, inter alia,

(1) the sale must be a genuine transaction; (2) the sale deed must have been executedat the time proximate to the date of issuance of notification under Section 4 of the Act; (3) .A.App.No. 421/2010 &ConnectedAppealsofVillageMasoodabad Page 5 • the land coveredby the sale must be in the vicinityof the acquired land; (4) the land covered, by the sale must be siinilarto the acquiredland; and (5) size of the plot of the land covered by the sale be comparable to the acquired land. The sales instancesshouldpreferablyhe closestto the date of the notificationas then alone it would satisfy the touchstoneof the principles contemplated,luider Section 23 of the Act, as held un Kanwar Sin^h v. Union of India

(1998)8see 136." ' ] I. 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, puipose for which the acquisition is made is an impoitant fcictor, 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, possibilityoftheirfurtherextensionand the prospectsofdevelopmentin the aiea have to be taken into consideration.It-has been so reiteratedby the Apex Court in Atma Singh (supra). It is in this context, 1have scrutinizedthe evidence on record and I find that there is hardly any evidence regarding the topographyof the area adjoining the acquired land in questionand the evidenceled regardingthe aks shizra(Hx.PW-2/1) of this villagedoes not throw any light on this vital aspcct, excepl that the evidence led to prove this documentadversely rclTects that on the easternside of VillageMasoodabad,there is Najafgarhdrain, which l.A.App,No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 6 r'0 instead of enliancingthe potentiality,ratlier diminisliesit. The witness who was got examined to prove the aks shizra of Village Ncwgli Sakrawati(Ex.PW-4/1)concedesthat the metalledroad betweenVillage Nangli Sakrawatiand Village Masoodabadis not reflected in the ah shizra.Hvideneeofthis witness(PW-4)insteadofadvancingthe case of the appellants/claimants regarding the potentiality, reduces the potentialityofthe acquiredland in question.

¶13There is no evidenceto establishthe comparabilityofthe acqun-ed lands underAward(Ex.PW-1/3)pertainingto VillageMangolpurKhurd and under Award (Ex.PW-1/4)ofVillageMohaminadpurMunirkawith the acquiredland 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 considered opinion of this Court, ReferenceCourt has rightly excludedthe aforesaidAwards (Rx.PW-1/3 & Ex.PW-1/4)to determinethe fair marketvalueof the acquiredland in question.Self serving depositionof claimantsregardingpotentialityof acquired lands in question,in the absenceof corroborativeevidence,is not enough to return positivefinding on this crucial aspect,particulaily in view of the fact that evidenceregardingindustriesbeing there mthe vicinityof acquiredlandsis 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 distance from the said land to the land in question.Therefore,ReferenceCourt has rightly not relieduponthe DelhiJalBoardinstance(Ex.PW-4/1).

¶15.It has come in evidenceof the appellants/claimantsthat theie is no Governmenthospitalor collegein VillageMasoodabad.and the evidence LA.App.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 7 regardingthe acquired land in question being surroundedby developed colonies is lacking, hi the face of such deficientevidence, there is no scope for enhancementofcompensationin the instant appeals. Such a conclusion is being drawn while keeping in view the ratio of the piecedents cited. Maving tailed to establish the potentiality of the acquiied land in question, the appellants/claimantshave to remain content with the assessment of compensation on the basis of the indicativepriceofthe agriculturalland by GovernmentofNCT ofDelhi as undisputedly,the acquired land in question were being used for agriculturalpurposeat the timeofits acquisition.

¶16Upon scrutiny of the evidence on record, it becomes quite appaientthat despite VillageMasoodabadbeing declared as urban, the acquiredland in questionwere beingused for agriculturalpuiposeby 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 Notificationunder Section 4 of the Land AcquisitionAct, 1894. Suchaview is beingtaken as the acquiredland in question was admittedlyundevelopedand therefore,adoption of DBA auctionrates orL&DO rates is not permissiblein view ofthe dictum of the Apex Court in Lai Chand (supra), which has been quoted with appioval by the Apex Court in its latest decision in ThakurKuldeep Singh (supra).

¶17Regarding increase ot 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 tile Apex,Court in Vnlon of India .,s. Ha,p"t, (2009) 14 SCC 375. Tiiis Court finds that the lAApp.No. 421/2010&ConnectedAppealsofVillageMasoodabad Page 8 W: V/.' O RefeienceCourt was justifiedin granlingtlie aforesaidincreaseof 10% per annum while relyingupon the decisionin Harpat(supra).

¶18In the light of the fore-goingnarration,I find no infirmityin the impugned judgment m which fair compensation has been assessed in icspcctof the acquiredland in question.ReferenceCourt has 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 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 partieslo bear their own costs. Registryis directedlo remit the compensationamount, Ifany, depositedby eitherside with the RegistrarGeneralofthis Court, to the concernedReferenceCourt. SUNILGAUR) March 14,2012 picb

1.A.APP.No.421/20{^"nea.,AppealsofVillage ,

s IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : February 08, 2012 Pronounced on : March 14, 2012 + LA.APP. 1011/2010 % AKASHPOPLI 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 LACAJOI (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