LA.APP./21/2012 of UNION OF INDIA Vs ASHOK KUMAR KAPUR & ORS

IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on ; February 23, 2012Pronounced on : March 14, 2012

LA. App. No. 21/2012

UNIONOF INDIA

••-APPELLANTThrough:Mr.SanjayPoddar,SeniorAdvocatewithMr.SanjayPathalc,Ms.K.KiranPathak, Mr.Surya Nath Pandey,Mr.Yeeshu Jain and Ms.Navlin Swain,Advocates for LAC/UOI

VERSUS

••ASHOKKUMARKAPUR& ORS..RESPONDENTSThrough:Mr.B.D.Sharma,Mr.S.K.Rout,Ms.Suldida Dhamija andMr.B.K.Routray, Advocates

(Relatingto NotificationNo. F.7/60/2001/L&B/LA/MRTS(S/W)/7674

of 05.08.2003issuedunder Section4 of the Land AcquisitionAct, 1894& Award No. 5/2005-06of VillageMasoodabad,Delhi)

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

ORDER14.03.2012

For orders see LA.APP.421/2010, titled as Suresh Prasad alias

Hari Kishanvs. Union ofIndia & Am.

March 14, 2012

Signature Not Verified

Signing Date:03.10.2024 17:08:11pkbCertify that the digital and physical file havebeen compared and the digital data is as perthe physical file and no page is missing.

JIL GAUR)JUDGE

IN THEHIGHCOURT:>FLHiAT NEWDELHI

Reserved onFebruaiy 08, 2012Pronouneed on : iVIarch 14, 2012

LA.APP.421/2010(VH.LACF.MASOODABAD)

SURl-:SIi PRASADalias IIARI KlSl IAN

Appellant

Through: ' Mr.B.D.Sharma,Mr.S.K.Rout,Ms.Sukhda Dhamija and

Mr.B.K.Routray, Advocates

versus

UNION 01' TNDTA & ANR.

Respondents

Through:Mr.Sanjay Poddar, Senior Advocatewith Mr.Sanjay Pathak. Ms.K.KiranPathak, Mr.Surya Nath Pandey,Mr.Yccshu Jain and Ms.Navlin Swain,Advocatesibr I.AC7U01

AND

1-A.App. No.421/2010LA.App. No.441/2010LA.App. No.442/2010LA.App. No.443/2010LA.App. No.444/2010I.-A.App. No.446/2010].A.App. No.455/2010LA. App. No.456/2010LA.App. No.457/2010LA.App. No.458/2010LA.App. No.459/2010fvA.App. No.460/2010LA.App. No.462/2010i.A.App. No.463/2010I.A.App. No.464/2010L.A.App. No.465/2010LA.App. No.467/2010LA.App. No.468/2010f.A.App. No.469/2010I-A.App. No.470/2010LA.App. No-.471/2010r.A.App. No.478/2010LA.App. No.580/2010LA.App. No,583/20 i 0I.A.App. No.584/2010f.A.App. No.585/20101-A.App.No. 101 1/201 {)LA.App.No. 1012/2010LA.App.No. 1013/2010LA.App, No.12/2012

AND

APPl'^AI.SFILLD BY UNION OF INDIA

l.A.App.No. 746/2010 LA.App. No. 59/2012

LA.App. No. HOPOlI

LA.App. No. 747/2010 LA.App.No. 748/2010 LA.App. No. 749/2010I-A.App.No. 751/2010 LA.App.No. 753/2010 LA..'\pp.No 754/^010

l.A.App.No. 421/Z01()&ConnectedAppe,ilsofVill^.Mssoo^ba7

[.A.App.No. 755/2010l.A.App."No. 756/2010I.A.App.No. 858/2010l.A.App. No. 859/2010l.A.App. No. 860/2010LA..^pp. No. 861/2010l.A.App. No. 862/2010l.A.App, No. 863/2010l.A.App. No. 865/2010l,A.App. No. 866/2010LA.App. No. 867/2010LA.App. No. 868/2010LA.App. No. 869/2010LA.App. No. 267/201 1LA.App. No. 752/2010LA.App. No. 21/2012LA.App. No. 56/2012

(Relating to Notification No. F.7/60/2001/L&B/LA/MRTS(S/W)/7674of 05.08.2003issuedunder Section4 of the Land AcquisitionAct, 1894& AwardNo. 5/2005-06of VillageMasoodabad,Delhi)

CORAM:

ITON'BLE MR. JUSTICE SUNTL GAUR

O R R14.03.2012

1.Lor 'NajafgarhDepot, MKTS Project', 610 bighas and 13 biswasof land of Village Masoodabad was acquired vide Notillcation of 5"'August, 2003 under Section 4 of the Land AcquisitionAct, 1894 whichwas followed by Notificationof 8"' August, 2003 under Section 6 of theLand AcquisitionAct, 1894 resultingin passingof Av/ardNo.5/2005-06grantingcompensationat the rate of Rs.15.70 lacs per acre on the basisof indicative pricc fixed by the Government of NCT of Delhi for theagriculturallands in Delhi.

2.In the reference sought by the claimants, interest @iO% perannum was granted by the ReferenceCourt for the period of two years,i.e., from the date oi: llxing of the minimum agriculturalpricc upto thedate ol Notillcation, i.e., compensation amount stood enhanced toRs. 18,84,000per acrc for the acquiredland in question.

3.In the instant further enhancementofRs.50 lacs acreappeals, perIS sought by the claimants,whereas the respondentin their appealshavesought setting aside of the impugned order of the ReferenceCourt andrestorationol the Award. Since the grounds urged in these appeals isLA.App. No. 421/2010&ConnectedAppealsofVillageMasoodabadPage 2

India, 1997 I A[) (Del) c,j: Htiri Chand rv. Union ofIndia, 9! (2001)f)i;r 602; DeihiDevdopmentAuthorityvs. LandAcquisitionCollector&Ors., 130(2006)D'F \AtnuiSingh (died) through LRs w. Stateof Haryana & Anr., AIR 2008 SC 709; Makahir Prasad Santuka andOrs. Vs Collector, Cuttack and Ors., (1987) 1 SCC 587; ThakurKuldeep Singh (D) Ihr. L.R. & Ors vs. Union of India & Ors., AIR2010 SC 1272; Om Prakash (D) by LRs & Ors. vs. Union ofIndia &Anr., 2004 VlII AD (SC) 37; Om Prakash vs. StateofHaryana&Ors,201] IV AD (SC) 382; Sagunthala(dead) through LRs rv. SpecialTehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh DattatrayThirthkarvs. State of Maharashtra,AIR 2009 SC 2238, to assert thatthe eompensationclaimed in these appeals is just and reasonable.7.On bchalCof the respondents,it was asserted by learned SeniorCounsel (or the respondentsthat adoptionofthe auctionratesofDDA orL&DO rates in respectof agriculturalland stands negated by the ApexCourt in decision'mLai Chand vs. Union ofIndia andAnr., (2009) 15SCC 769. It was also urged by learned counsel for the respondentsthatdespite Village Masoodabad being declared to be urbanized, theacquired land in question continued to be used as agriculturalland andtherefore, instances olVillage Mangolpur KhurdandViliaoetoMohammadpurMunirkaare of no avail and the instanceof allotmentofland by DDA in favour of Delhi Jal f3oard cannot be treated to berepresentativeprice of the lands in the vicinityas the evidenceis lackingregarding said instances to be comparable for determiningthe marketvalue ol the land in question. Reliancewas placed upon decisionof theApex Court in Satpal&Ors. Vs. UnionofIndia, (1997) 11SCC 423 toassert that if in ashort periodthere is asharp increasein price,than theusualtrend in thesuch an instancecannot be taken as prevalent market,

I.A.App.No. 421/2010 &Connected

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

8.As regardsthe potentialityof the acquiredland in questionisconcerned, it is contended by learned Senior counsel for the respondentsthat no development activity took place in the vicinity nor any buildingactivity had started in the adjoining areas despite Village Masoodabadbeing declaredas urban and so the decisionsrelied upon by 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 given is dependentupon the nature of evidenceled and in theinstant matters, there is no evidence shov^nngincrease in the market priceof the land in question till its acquisition. It is asserted that doing awayof classification of acquired lands in question by Reference Court isillogical and without any justification. Thus, setting aside 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 restatedby the Apex Courtin its recent decisioninRaclha Muclaliyarvs. SpecialTehsildar(LandAcquisition)TamilNadu Housing Board, (2010) 13 SCC 384, in these words:-

"Comparable sales instances are the safest method fordetermining 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 the factors, inter alia,(]) 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)

•-• \V.-

the land coveredby the sale must be in the vicinityof theacquired land; (4) the land covered by the sale must hesimilarto the acquiredland; and (5) size of the plot of theland covered the sale be to the - . by comparable acquiredland. The sales instancesshouldpreferablybe closestto thedate of the notificationas 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."

1].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.Nowitistobeseenastowhetherthehave been successfulinthis burden orappellants/claimants dischargingnot.

12.No doubt, purpose for which the acquisition is made is animportantfactor, 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 reasonablycapable ofbeing put and proximity to residential, commercial or industrial orinstitutional area. The existing amenities like water, electricity,possibilityoi their furtherextensionand the prospectsofdevelopmentinthe area have to be taken into consideration.It has been so reiteratedbythe Apex Court in AUna Sin^ih (supra). It is in this context, 1 havescrutinizedthe evidence on record and 1 fmd that there is hardly anyevidence regarding the topographyof the area adjoining the acquiredland in questionand the evidenceled regardingthe aks shizra (Ex.PW-2/1) ofthis villagedoes not throw any light on .this vital aspcct, exceptthat the evidence led to prove this document adversely reflects that onthe easternside oi VillageMasoodahad,there is Najafgarhdrain, which

l-A.App.No. 421/2010&ConnectedAppeafsofViHagcMasoodabad

instead of enhancingthe potentiality,rather diminishesit. The witnesswho was examined to the ciLs shizra ol got prove Village NangliSakrawali(l^x.PW-4/1)concedesthat the metalledroad betweenVillageNangli Sakrawati and Village Masoodabadis not reilected in the aksshizra.Evidenceofthis witness(PW-4) insteadofadvancingthe case ofthe appellants/claimants regarding the potentiality, reduces thepotentialityofthe acquiredland in question.

13.There is no evidenceto establishthe comparabilityofthe acquiredlands under Award (Bx.PW-1/3)pertainingto VillageMangolpurKhurdand under Award (Ex.PW-lM)of VillageMohainmadpurMunirkawiththe acquiredland in question.Rather, as per-evidenceof the concernedofficial (PW-10), Award (Ex.PW-10/1)pertainedto West Patel Nagarfor Metro Project. Thus, in the considered opinion of this Court,ReferenceCourthas rightlyexcludedthe aforesaidAwards (Hx.PW-1/3& Hx.PW-1/4)to determinethe fair marketvalue ol the acquiredland inquestion. Selfservingdepositionof claimantsregardingpotentialityolacquiredlands in question,in the absence of corroborativeevidence,isnot enough to return positivefinding on this crucial aspect, particularlyin view of the factthatevidenceregardingindustriesbeing there in thevicinityofacquiredlands is lacking.14.So fer as the DelhiJal Boardinstance(Ex.PW-4/1)is concerned,1find that even its comparabilitywith acquired land in question is notestablishedas the witness (PW-5) who has deposed in respect of thistransactionhas concededthat he is not able to tell the distancefrom thesaid land to the land in question.Therefore,ReferenceCourt has rightlynot relied the DelhiJal Boardinstanceupon(Ex.PW-4/1).15.It has come in evidenceofthethat theie is no appellants/claimants

Governmenthospitalor collegein VillageMasoodabadand the evidence

regardingthe acquired land in question being 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. Maving failed to establish the potentiality of theacquired land in question, the appellants/claimantshave to remaincontent with the assessment of compensation on, the basis of theindicativeprice of the agriculturalland by Governmentof NCT of Delhias undisputedly, the acquired land in question were being used forat the time of itsagriculturalpurpose acquisition.

16.Upon scrutiny of the evidence on record, it becomes quiteapparentthat despite VillageMasoodabadbeing declared as urban, theacquiredland in questionwere being used for agriculturalpurposeby theappellants/claimantsand so, adoption of indicativeprice of agriculturallands Government of NCT of Delhi to be reasonable by appearscriteria 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 acquiredland inquestion was admittedlyundevelopedand therefore, adoption ofDDAauctionrates or L&DO rates is not permissiblein view ofthe dictum ofthe Apex Court in Lai Chand (supra), which has been quoted withapproval by the Apex Court in its latest decision in ThakurKuldeepSingh (supra).

17. increase of 10% annum over and above theRegardmg perminimum indicativeprice hxed by Governmentof NCT of Delhi, thesame cannot be assailed by the respondentas the Reference Court hasdone so while decision of ttie Court in Union of relying upon ApexIndia vs. Harpm, (2009) 14 SCC 375. Tliis Court finds that the

I.A.App.Mo. 421/2010&. ConnectedAppealsofVillageMasoodl^

ReferenceCourt was justifiedin grantingthe aforesaidincreaseof 10% annum while the decisioninper relyingupon Harpat(supra).18.In the light of the fore-goingnarration,f find no inllrmityin theimpugned judgment in which lair compensation has been assessed inicspectof the acquired land in question. ReferenceCourt has rightlynotclassified the acquired land in question into 'A' category and 'B'category, as Land AcquisitionCollector in the Award in question hasunequivocally stated that no classification of the acquired land isrequiredto be done as the acquiredland is leveled.J9.Consequentially,the appealsofthe appellants/claimantsas well asappealsofUnionofIndiaare dismissed,while leavingthe partiesto beartheir own costs. Registry is directedto remit.thecompensationamount,if any, depositedby eitherside with the RegistrarGeneral of this Court,to the concerned Reference Court.

March 14, 2012.pkb

'"TSUNTLGAUR)JUDGE

Masoodabadg