LA.APP./541/2011 of UNION OF INDIA Vs PARMANAND & ANR

*IN THE HIGH COURTOF DELHIAT NEW DELHI

+LA.APP. 541/2011 & CM No. 15655/2011 (stay)

UNION OF INDIAAppellantThroughMr. Yeeshu Jain, Advocate

versus

PARMANAND & ANRRespondent

ThroughNemo

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

ORDER%15.05.2012

Learned counsel for the appellant does not dispute that this appealindeedhastobedismissedin viewof thedecisionof thisCourtinLA.App.421/2010(Village Masoodabad)in Suresh Prasad @ Hari KishanVs. UnionofIndia &Anotherrenderedon 14"^March,2012.

In view thereof, this appeal is dismissed with no orders as to costs.If the compensation amount had already not been deposited, then theappellantisdirectedtodepositthesamewiththeReferenceCourtconcerned.

With these observations, the appeal and the application for stay aredisposed of.

MAY 15, 2012

[IL GAUR, J

Signature Not Verified

IN THE HIGHCOURTOF DELHIAT NEW DELHI

Reserved on : February 08, 2012Pronounced on : March 14, 2012

LA.APP.421/2010

(VILLAGE MASOODABAD)

SURESH PRASAD alias KMU KISHANAppellantThrough;Mi-.B.D.Sharma, Mr.S.K.Rout,Ms.Suklida Dhamija andMr.B.K.Routray,Advocates

versus

UNION OF INDIA & ANR.RespondentsThrough:Mr.Sanjay Poddar, Senior Advocatewith Mr.Sanjay Pathalc, Ms.K.KiranPathak, Mr.Surya Nath Pandey,Mr.Yeeshu Jain and Ms.Navlin Swain,Advocatesfor LAC/UOIANDLA.App.No. 421/2010LA.App.No. 441/2010LA.App. No. 442/2010LA.AppNo. 443/2010LA.App,No. 444/2010LA.App. No. 446/2010I.A.App.No. 455/2010LA.App.No. 456/2010LA.App, No. 457/2010LA.App.No. 458/2010LA.App,No. 459/2010LA.App, No. 460/2010LA.AppNo. 462/2010LA.App,No. 463/2010LA.App,No. 464/2010LA.AppNo. 465/2010LA.AppNo. 467/2010LA.App,No. 468/2010LA.AppNo. 469/2010LA.AppNo. 470/2010LA.AppNo. 471/2010LA.AppNo. 478/2010LA.AppNo. 580/2010LA.AppNo. 583/2010LA.AppNo. 584/2010LA.AppNo. 585/2010LA.AppNo. 1011/2010LA.AppNo.1012/2010LA.App,No.1013/2010LA.AppNo. 12/2012with Mr.Sanjay Pathalc, Ms.K.KiranPathak, Mr.Surya Nath Pandey,Mr.Yeeshu Jain and Ms.Navlin Swain,Advocatesfor LAC/UOIANDLA.App.No. 421/2010LA.App.No. 441/2010LA.App. No. 442/2010LA.AppNo. 443/2010LA.App,No. 444/2010LA.App. No. 446/2010I.A.App.No. 455/2010LA.App.No. 456/2010LA.App, No. 457/2010LA.App.No. 458/2010LA.App,No. 459/2010LA.App, No. 460/2010LA.AppNo. 462/2010LA.App,No. 463/2010LA.App,No. 464/2010LA.AppNo. 465/2010LA.AppNo. 467/2010LA.App,No. 468/2010LA.AppNo. 469/2010LA.AppNo. 470/2010LA.AppNo. 471/2010LA.AppNo. 478/2010LA.AppNo. 580/2010LA.AppNo. 583/2010LA.AppNo. 584/2010LA.AppNo. 585/2010LA.AppNo. 1011/2010LA.AppNo.1012/2010LA.App,No.1013/2010LA.AppNo. 12/2012

AND

APPEALS FILED BY UNION OF INDIA

LA.App.No. 746/2010LA.App.No. 59/2012LA.App.No. 710/2011LA.App.No. 747/2010 LA.App.No. 748/2010 LA.App.No. 749/2010LA.App.No. 751/2010 LA.App.No. 753/2010 LA.App.No. 754/2010

LA.App.No. 421/2010 &ConnectedAppealsofVillageMasoodabad

LA.App. No. 755/2010LA.App. No. 859/2010LA.App. No. 862/2010LA.App. No. 866/2010LA.App. No. 869/2010LA.App. No. 21/2012

LA.App. No. 756/2010LA.App. No. 860/2010LA.App. No. 863/2010LA.App. No. 867/2010LA.App. No. 267/2011LA.App. No. 56/2012

LA.App. No. 858/2010LA.App. No. 861/2010LA.App. No. 865/2010LA.App. No. 868/2010LA.App. No. 752/2010

(Relating to Notification No. F.7/60/2001/L&B/LA/MRTS(S/W)/7674of 05.08.2003issued under Section 4 of the Land AcquisitionAct, 1894& Award No. 5/2005-06 of Village Masoodabad,Delhi)

COl^M:

HON'BLE MR. JUSTICE SUNIL GAUR

ORDER14.03.2012

1.For 'Najafgarh Depot, MRTS Project',610 bighas and 13 biswasof land of Village Masoodabadwas acquired vide Notificationof 5"'August, 2003 under Section 4 of the Land Acquisition Act, 1894 whichwas followedby Notificationof 8"" August,2003 under Section6 of theLand Acquisition Act, 1894 resulting in passing of Award No.5/2005-06granting compensation at the rate of Rs.15.70 lacs per acre on the basisof indicative price fixed by the Governmentof NCT of Delhi for theagriculturallands in Delhi.

2.In the reference sought by the claimants, interest @10% perannum 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 thedate of Notification, i.'e., compensation amount stood enhanced toRs.18,84,000 per acre for the acquired land in question.

3.In the instant appeals, further enhancement of Rs.50 lacs per acreis soughtby the claimants,whereasthe respondentin their appealshavesought setting aside of the impugned order of the Reference Court andrestoration of the Award. Since the grounds urged in these appeals is

common, therefore, by this common order, these appeals are beingdisposed of.

4.On behalf of the appellants/claimants, it is urged that the learnedReference Court has wrongly treated acquired lands as agricultural landand did not appreciate the potentiality of the acquired land as buildingsite and assessment of the compensation in respect of the acquired landought to have been made on the basis of the average auction rate ofresidential and commercial plots in Dwarka and the rates charged by theDDA while allotting alternative plots is valid basis to arrive at truemarket value of the acquired land in question.

5.Duringthe course of hearing,it was pointedout by learnedcounselfor theappellants/claimantsthatVillageMasoodabadwasurbanized in the year 1963 and zonal development plan was prepared byDelhi Development Authority in the year 1974 and the acquisition,oftheland in question was for the proposed residential purpose. Much reliancewas placed upon Award (Ex.PW-1/3) pertaining to Village MangolpurKhurd and Award (Ex.PW-1/4) of Village Mohammadpur Munirka ofthe Land Acquisition Collector, wherein compensation was assessedwhile taking into consideration the L&DO rates. It is pointed out thatsome parcel of acquired land abuts the main Delhi-Najafgarh metalledroad and in the adjoining Village Nangli Sala-awati, there are industriesand Najafgarh Industrial Area is in the vicinity.counselfor theappellants/claimantsthatVillageMasoodabadwasurbanized in the year 1963 and zonal development plan was prepared byDelhi Development Authority in the year 1974 and the acquisition,oftheland in question was for the proposed residential purpose. Much reliancewas placed upon Award (Ex.PW-1/3) pertaining to Village MangolpurKhurd and Award (Ex.PW-1/4) of Village Mohammadpur Munirka ofthe Land Acquisition Collector, wherein compensation was assessedwhile taking into consideration the L&DO rates. It is pointed out thatsome parcel of acquired land abuts the main Delhi-Najafgarh metalledroad and in the adjoining Village Nangli Sala-awati, there are industriesand Najafgarh Industrial Area is in the vicinity.

6.According to the learned counsel for the appellants/claimants,thebest piece of evidence, i.e. allotment of land in Village MasoodabadandNajafgarhby DDA to Delhi Jal Board at the rate of Rs.20 lacs per acrein 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)DRJ(DB) 384; P.N.Singh vs. Unionof

India, 1997 I AD (Del) 83; Hari Chand vs. Union of India, 91 (2001)DLT 602; Delhi Development AuthorityLand Acquisition Collector& Ors., 130(2006) DT 1(DB); Atma Singh (died) through LRs V5. Stateof Haryana & Anr., AIR 2008 SC 709; Mahabir Prasad Santuka andOrs.Vs Collector,Cuttackand Ors., (1987)1 SCC 587; ThakurKuldeep Singh (D) Thr. L.R. & Ors V5. Union of India & Ors., AIR2010 SC 1272; Om Prakash(D) by LRs & Ors. vs. Union of India &Anr., 2004 VIII AD (SC) 37; Om Prakash vs. State ofHaryana & Ors,2011 IV AD (SC) 382; Sagunthala(dead) throughLRs vs. SpecialTehsildar(L.A.)and ors.,AIR 2010SC984;MaheshDattatrayThirthkarV5. State of Maharashtra,AIR 2009 SC 2238, to assert thatthe compensation claimed in these appeals is just and reasonable.7.On behalf of the respondents,it was asserted by learned SeniorCounsel for the respondents 9^ that adoption of the auction rates ofDDA or L&DO rates in respect of agricultural land stands negated bythe Apex Court in decision in Lai Chand vs. Union of India and Anr.,(2009)15 SCC 769. It was also urged by learned counsel for therespondentsthat despite Village Masoodabadbeing declared to beurbanized,the acquiredland in question continuedto be used asagricultural land and therefore, instances of Village Mangolpur Khurdand Village MohammadpurMunirka are of no availand the instance ofallotment of land by DDA in favour of Delhi Jal Board cannot be treatedto be representative price of the lands in the vicinity as the evidence islacking regarding said instances to be comparable for determining themarket value of the land in question.Reliancewas placed upon decisionof the Apex Court mSatpal & Ors. Vs. Union ofIndia, (1997) 11 SCC423 to assert that if in short period there is sharp increase in price,than the usual prevalent trend in the market, such an instance cannot be

taken as realistic price unless and until the reasons for such sharp rise areexplained and there is no explanation to justify the adoption of Delhi JalBoard instance to determine the market value of the acquired land inquestion.

8.As regards the potentiality of the acquired land in question isconcerned, it is contended by learned Senior counsel for the respondentsthat no development activity took place in the vicinity nor any building. activity had started in the adjoining areas despite Village Masoodabadbeingdeclaredas urbanandso thedecisionsrelieduponby theappellants/claimantsare distinguishableon facts.

9.In the appeals preferred by the respondents, enhancement in thecompensationamount is assailed on the ground that the annual increaseto be givenIndependentupon the nature of evidence led and in theinstant matters, there is no evidence showing increase in the market priceof the land in question till its acquisition. It is asserted that doing awayof classificationof acquired lands in question by Reference Court isillogicaland withoutany justification.Thus,settingaside of theimpugned judgment and restoring of the Award of the Land AcquisitionCollector is sought by the respondents.10.Factors and test to determine the true market value of the acquiredland have been restated by the Apex Court in its recent decision inRaclha Mudaliyarvs. SpecialTehsildar(Land Acquisition)Tamil

Nadu Housing Board, (2010) 13 SCC 384, in these words:-

"Comparable sales instances are the safest method fordeterniining the market value of the acquired land and aslaid down in Shaji Kuriakose v. Indian Oil Corpn. Ltd.,(2001) 7 SCC 650, it should satisfy thefactors, inter alia,(1) the sale must be genuine transaction;(2) the sale deedmust have been executed at the time proximate to the dateof issuance of notification under Section 4 of the Act; (3)

the land covered by the sale must be in the vicinity of theacquired land; (4) the land covered by the sale must besimilar to the acquired land; and (5) size of the plot of theland covered by the sale be comparableto the acquiredland. The sales instances should preferably be closest to thedate of the notification as then alone it would satisfy thetouchstone of the principles contemplated under Section 23of the Act, as held in Kanwar Singh v. Union of India,(1998)8 see 136."

11.Having heard learned counsel for the parties in these matters andupon perusal of the impugned judgment,evidence on record and thedecisions cited, I proceed on the premise that the burden of provinginadequacyofthecompensationamountisupontheappellants/claimants.Nowitistobeseenastowhethertheappellants/claimantshave been successful in discharging this burden ornot.12.No doubt, purposefor which the acquisitionis made is animportant factor, but the question as to whether the acquired land haspotential value or not, is primarily one of fact depending upon itscondition, situation, user to which it is put or is reasonably capable ofbeing put and proximityto residential,commercialor industrialorinstitutional area. Theexisting amenities likewater,electricity,possibility of their fiirther extension and the prospects of development inthe area have to be taken into consideration. It has been so reiterated bythe Apex Court in Atma Singh (supra). It is in this context, I havescrutinized the evidence on record and I find that there is hardly anyevidence regarding the topographyof the area adjoiningthe acquiredland in questionand the evidenceled regardingthe aks shizra (Ex.PW-2/1) of this village does not throw any light on this vital aspect, exceptthat the evidence led to prove this document adversely reflects that onthe easternside of VillageMasoodabad,there is Najafgarhdrain, which

instead of enhancing the potentiality, rather diminishes it. The witnesswho was got examined to prove the aks shizra of Village NangliSakrawati (Ex.PW-4/1) concedes that the metalled road between VillageNangli Sakrawati and Village Masoodabad is not reflected in the aksshizra. Evidence of this witness (PW-4) instead of advancing the case oftheappellants/claimantsregardingthepotentiality,reducesthepotentiality of the acquired land in question.

13.There is no evidence to establish the comparability of the acquiredlands under Award (Ex.PW-1/3) pertaining to Village Mangolpur Khiirdand under Award (Ex.PW-1/4) of Village MohammadpurMunirka withthe acquired land in question. Rather, as per evidence of the concernedofficial (PW-10), Award (Ex.PW-10/1)pertainedto West Patel Nagarfor MetroProject.Thus,in the consideredopinionof this Court,ReferenceCourthas rightlyexcludedthe aforesaidAwards|Ex.PW-1/3|^ai^^Ex.PW-1,^to determinethe fair marketvalueofthe acquiredlandin question. Self serving deposition of claimants regarding potentiality ofacquired lands in question, in the absence of coordinativeevidence, isnot enough to return positive finding on this crucial aspect, particularlyin view of the fact that evidence regarding industries being there in thevicinity of acquired lands is lacking.14.So far as the Delhi Jal Board instance (Ex.PW-4/1) is concerned,I find that even its comparability with acquired land in question is notestablished as the witness (PW-5) who has deposed in respect of thistransactionhas conceded that he is not able to tell the distancefi-om thesaid land to the land in question. Therefore, Reference Court has rightlynot relied upon the Delhi Jal Board instance (Ex.PW-4/1).15.It has come in evidence of the appellants/claimants that there is noGovernment hospital or college in Village Masoodabad and the evidence

regardingthe acquiredland in questionbeing surroundedby developedcolonies is lacking. In the face of such deficientevidence,there is no for enhancementofin the instant Such ascope compensation appeals.conclusion is being drawn while keeping in view the ratio of theprecedents cited. Having failed to establish the potentiality of theacquired land in question, the appellants/claimantshave to remaincontent with the assessment of compensation on the basis of theindicativepriceofthe agriculturalland by GovernmentofNCT ofDelhias undisputedly,the acquired land in question were being used foragriculturalpurposeat the time of its acquisition.

16.Upon scrutiny of the evidence on record, it becomes quiteapparentthat despiteVillageMasoodabadbeing declaredas urban, theacquiredland in questionwere beingused for agriculturalpurposeby theappellants/claimantsand so, adoptionof indicativeprice of agriculturallands by Government of NCT of Delhi appears to be reasonablecriteria for determining the market value of the acquired land inquestion, as on the date of Notificationunder Section 4 of the LandAcquisitionAct, 1894. Such view is being taken as the acquired land inquestionadmittedly undeveloped and therefore, adoption of DDAauction rates or L&DO rates is not permissible in view of the dictum ofthe Apex Court in Lai Chand (supra), which has been quoted withapproval by the Apex Court in its latest decision in Thakiir KuldeepSingh (supra).

17.Regardingincreaseof 10% perannumoverand above theminimum indicative price fixed by Government of NCT of Delhi, thesame cannot be assailed by the respondent as the Reference Court hasdone so while relying upon decision of the Apex Court in Union ofIndiavs. Harpat,(2009)14 SCC375.ThisCourtfindsthatthe

ReferenceCourtwas justifiedin grantingthe aforesaidincreaseof 10%annumwhilethe decisioninperrelyinguponHarpat(supra).18.In the lightofthe fore-goingnarration,Ifind no infirmityin theimpugnedjudgmentin which fair compensationhas been assessed inrespectofthe acquiredland in question.ReferenceCourthas rightlynotclassified the acquired land in question into 'A' category and 'B'category, as Land AcquisitionCollectorin'theAward in questionhasunequivocally stated that no classificationof the acquired land isrequiredto be done as the acquiredland is leveled.19.theoftheas well asConsequentially, appeals appellants/claimantsappealsofUnionofIndiaare dismissed,whileleavingthe partiesto beartheir own costs. Registryis directedto remitthe compensationamount,ifany, depositedby eitherside with the RegistrarGeneralofthis Court,to the concerned Reference Court.