LA.APP./863/2010 of UNION OF INDIA Vs RAKESH KUMAR

liS 11-fE HIGH COURT'OFDEiJUiN'EVV DELHI

Reserved on : February 08, 2012Pronounced on ; K4arch 14, 2012

LA.APP.421/2010(VILLAGEMASOODABAD)

SURl'SI1PRASADalias [lARJ KISMANAppellani,I'hrough:Mr.B.D.Sharma,Mi-.S.K.Rout,Ms.Sukhda Dhaini ja and

Appellani,

Mr.B.K.Roulray, Advocates

versus

UNION OF- INDIA & ANR.

Respondents

I'hrough:Mr.Sanjay Poddar, Senior Advocate

with Mr.Sanjay Pathak, Ms.K.KiranPathak,Mr.SuryaNath Pandey,Pathak,Mr.SuryaNath Pandey,

Mr.YeeshuJain and Ms.NavlinSwain,Advocatesfor I.AC/UOI

AND

f-A.App. No.421/2010FA.App. No,441/2010FA.App. No.442/20.! 0FA.App. No.443/2010FA.App. No.444/20101.A..App. No.446/201 f)I.A.App. No.455/2010f..A.App. No,456/201 0FA.App. No,457/2010FA.App. No.458/2010FA.App. No,459/2010i..A.App, No.460/20101.A.App. No.462/2010F.A.App. No.463/2010! A.App. No,464/20! 0FA.App. No.465/201 0F.A.App. No.467/201 0F,A,App. No.468/201 0I-A.App. No.469/2010FA..App. .No.470/201 0FA.App. No.471/2010F.A.App. No.478/2010i.A.App. No.580/20101,A.App. No.583,/2010i.A.App.No.584/2010FA.App. No.585/2010r.-.A.App.No. 1Oi l/20i01.A.App.No. 1012/2010J.A.App.No. 1013/2010FA.App. No.12/2012

AND

APPJvAI.SFIFFD BY UNION OF INDIA

I-A.App.No. 746/2010 FA.App. No. 59/2012

FA.Anp. No. 710/20!1

FA.App. No. 747/2010 LA.App.No. 748/2010 FA.App.No 749P{)\i)I.A.App,No. 751/2010 FA.App. No. 753/2010 F.A.App.No 754/''0!0

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LA.App.No. 755/2010 LA.App. No. 756/2010 LA.App.No. 858/2010I.A.App.No. 859/2010LA.App. No. 860/2010 LA.App. No. 861/2010LA.App. No. 862/2010T.A.App.No. 863/2010 I.A.App.No. 865/2010LA.App.No. 866/2010LA.App. No. 867/2010 LA.App. No. 868/2010LA.App. No. 869/2010LA.App. No. 267/2011LA.App. No. 752/2010i.A.App. No. 21/2012LA.App. No. 56/2012

(Relating to NotificationNo. F:7/60/2001/L&B/LA/MRrS(S/W)/7674of 05.08.2003issued under Section4 ofthe Land Acquisition./\ct, 1894& Award No. 5/2005-06of VillageMasoodabad,Delhi)

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

ORDER14.03.2012

1.For 'NajafgarhDepot, MKTS Project',610 bighas and 13 biswasof land of Village Masoodabad was acquired vide Notificationof 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 passingofAward No.5/2005-06grantingcompensationat the rate of Rs.15.70 lacs per acre on the basisof indicative pricc fixed by the Governmentof NCT of Delhi for theagriculturallands in Delhi.

2.In the reference sought by the claimants, interest (2^)10% perannum was granted by the ReferenceCourt for the period of two years,i.e., from the date of fixing of the minimum agriculturalprice upto thedate of Notificafion, i.e., compensation amount stood enhanced toRs.l8,84,000per acre lor the acquiredland in question.in the instantfurtherenhancementof Rs.50 lacs acrej.appeals, peris sought by the claimants,whereasthe respondentin their appeals havesought setting aside of the impugned order of the ReferenceCourt andrestorationof the Award. Since the grounds urged in these appeals is •

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common, therefore, by this common order, these appeals arc beingdisposed of

4.On behalfof the appellants/claimants,il is urged thai the learnedReferenceCourt has wrongly treated acquired lands as agriculturallandand did nottheof the land as appreciate potentiality acquired buildingsite and assessment.ofthe compensationin respectofthe acquired landought to have been made on the basis of the average auction rate ofresidentialand commercialplots in Dwarkaand the rates chargedby theDDA while allotting alternativeplots is valid basis to arrive at truemarketvalueof the acquiredland in question.

5.During the course of hearing, it was pointed out by learnedcounsel for thethat Masoodabad was appellants/claimants Villageurbanizedin the 1963 and zonal was year developmentplan prepared byDelhi DevelopmentAuthorityin the year 1974 and the acquisitionof theland mquestionwas for the proposedresidentialpurpose. Much rclianccwas placed upon Award (ltx.PW-1/3)pertainingto Village MangolpurKhurd and Award (ILx.PW-lM)of Village MohammadpurMunirka ofthe I.and Acquisition Collector, wherein compensation was assessedwhile taking into considerationthe i:&DO rates. It is pointed out thatsome parcel of acquired land abuts the main Delhi-Najafgarhmetalledroad and in the adjoiningVillage Nangli Sakrawati,there are industriesand NajafgarhIndustrialArea is in the vicinity.

6.Accordingto the learned counsel for the appellants/claimants,thebest piece ofevidence,i.e. allotmentof land in Village MasoodabadandNajafgarhby DDA to Delhi .lal Board at the rate of Rs.20 lacs per acrein the 1993 has beendiscarded the Reference Court. year illegally byReliance is placed upon the decisions reported in Tindey &Ors. Kv.UnionofIndia&Anr, 2000(54)DR.I(DB) 384; P.IW.Singhvs. Unionof

No. ^^1112010&

India, 1997 I AD (Del) 83; Hail Chand vs. Union ofIndia, 91 (2001)1)1;r 602; Peihi DevelopmentAuthorityvs. LandAcquisitionCollector&Ors., 1j0(2006)D1 1(DB);AtniaSingh (died) through LRs rv. Stateof Haryana & Anr., MR 2008 SC 709; Mahahir Prasad Santuka andOrs. Vs Collector, Cuttack and Ors., (1987) 1 SCC 587; ThakurKuldeep Singh (D) Thr. L.R. & Ors rv. Union ofIndia & Ors., AIR2010 SC 1272; Om Prakash (D) by LRs & Ors. w. Union ofIndia &Anr., 2004 VIII AD (SC) 37; Om Prakashvs. StateofHaryana&Ors,2011 IV AD (SC) 382; Sagunthala(dead) through LRs vs. SpecialTehsildar (L.A.) and ors., AIR 2010 SC 984; Mahesh DattatrayThirthkarvs. State ofMaharashtra,AIR 2009 SC 2238, to assert thatthe compensationclaimedin theseappealsis justand reasonable.7.On behalfof the respondents,it was asserted by learned SeniorCounsel for the respondentsthat adoptionofthe auctionrates ofDDA oi"L&DO rates in respectof agriculturalland stands negated by the ApexCourt in decisionin Lai Chandw. Union ofIndiaandAnr., (2009) 15SCC 769. It was also urged by learned counsel for the respondentsthatdespite Village Masoodabad being declared to be urbanized, theacquired land in questioncontinuedto be used as agriculturalland andtherefore, mstances of Village Mangolpur Khurd and VillageMohammadpurMunirkaare ofno avail and the instanceofallotmentofland by DDA in favour of Delhi Jal Board cannot be treated to berepresentativepriceofthe lands in the vicinityas the evidenceis lackingregardingsaid instances to be comparable for determiningthe marketvalue of the land in question.Reliancewas placed upon decisionof theApex CourtmSatpal&Ors. Vs. UnionofIndia, (1997) 11SCC 423 toassertthat if in ashort period there is asharp increasein price,, than the•usual prevalenttrend in the market,such an instancecannot be taken as

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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 ol the acquired land in question isconcerned,it is contendedby learned Seniorcounsel for the respondentsthat notook in thenor developmentactivity place vicinity any buildingactivity had started in the adjoiningareas despite Village Masoodabad declared as urban and so the decisions relied thebeing upon byappellants/claimants are distinguishable on facts.

9.In the appeals preferred by the respondents, enhancement in thecompensation amount is assailed on the ground that the annual increaseto be given is dependent upon the nature of evidence led and in theinstantmatters,there is no evidenceshowingincreasein the marketpriceofthe land in questiontill its acquisition.It is assertedthat doing av\'ayol classificationol' acquired lands in question by Reference Court isillogical and without any justification. Thus, setting aside of theimpugnedjudgmentand restoringofthe Award ofthe Land AcquisitionCollectoris sought by the respondents.

10.Factorsand test to determinethe true marketvalueofthe acquiredland have been restated by the Apex Court in its recent decision inRadha MudaUyar vs. Special TehsUdar (Land Acquisition) TamilNadu Housing Board, (2010) 13 SCC 384, in these words:-

"Comparable sales instances are the safest method fordeterminingthe market value of the acquiredland and aslaid down in Slwji Kuriakose v. Indian Oil Corpn. Ltd.,(2001) 7SCC 650, it shouldsatisfy thefactors, inter alia,(I) the sale must be genuinetransaction:(2) the saledeedmust have been executedat the time proximateto the dateofissuanceofnotificationunder Section 4 ofthe Act; (3)

the land coveredby the sale musi he in the vicinilvof theacquired kind; (4) the land covered hy the sale mii.sl hesimilarto the acquiredland: and (5) size of the plot oftheland covered hy the sale he comparable to the acquiredland, line sales instancesshouldpreferahlyhe closestto thedate of the notificationas then alone it would satisfy thetouchstone of the principles contemplated under Section 23of the Act, as held in Kamvar Sin^h v. Union of hidia(1998)8 see 136."

11.Ilaving heard learned counsel for the parties in these mattersandupon perusal of the impugned judgment, evidence on record and thedecisions cited, I proceed on the premise that the burden of provinginadequacyofthe • compensationamountisupontheappellants/claimants. Now it istobeseenastowhether thehave been successful inthis burden orappellants/claimants dischargingnot.

12.No doubt, purpose for which the acquisition is 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 reasonablycapable ofbeing put and proximity to residential, commercial or industrial orinstitutional area. The existing amenities like water, electricity,possibilityoftheir iiirtherextensionand the prospectsofdevelopmentinthe area have to be taken into consideration.It has been so reiteratedbthe Apex Court mAlma Singh (supra). It is in this context, 1heavescrutinizedthe evidence on record and I find that there is hardly anyevidence regarding the topographyof the area adjoining the acquii'cdland in questionand the evidenceled regardingthe aks shizra (Rx.PW-2/1) of this village does not throw any light on this vital aspect, exceptthat the cvidcncc led to prove this documentadversely renects that onthe easternside oi VrllageMasoodabad,there is Najafgarhdrain, which

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instead of enhancingthe potentiality,rather ditliinishesit. The witnesswho was got exatnined to prove the aks share, ol' Village NansUSaknimili(l-;x.PW-4/l)concedestiiatthe metalledroad betweenVillageNangli Salcrawatiand Village Masoodahadis not reflected in the ahMzra.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 underAward(Ex.PW-1/3)pertainingto VillageMangolpwKlnirdand under Award (Ex.PW-l/4)of Village MohanvnadpurMimirkawiththe acquiredland in question.Rather, as per evidenceof the concernedolTicia'l (PW-IO), Award (Fix.PW-IO/l)pertained to West Patel Nagarfor Metro Project. I'hus, in the considered opinion ol this Court,ReferenceCourthas rightlyexcludedthe aforesaidAwards(Ex.PW-1/3& F.x.PW-l/4).todeteriTiinethe fair marketvalue ol the acquiredland inquestion.Selfservingdepositionof claimantsregardingpotentialityofacquiredlands in question,in the absenceof corroborativeevidence,isnot enoughto return positivefindingon this crucial aspect,particularlyin view of the fact that evidenceregardingindustriesbeing thei'e in thevicinityofacquiredlands is lacking.

14.So l^r as the DelhiJal Boardinstance is ,([•x.PW-4/1) conccrned,1find that even its comparabilitywith acquired land in question is notestablishedas the witness (PW-5) who has deposed in respect of thistransactionhas concededthat lie is not able to tell the distancefrom thesaid land to the land in question.Therefore,ReferenceCourt has lightlynot relied the DelhiJal Boardinstanceupon(Lx.PW-4/1).15.It has come in evidenceofthethatthere is no appellants/claimantsGovernmenthospitalor collegein VillageMasoodabadand the evidence

regardingliic acquired land in question being surroundedby developedcolonics is lacking. In the facc of such deHcient evidence, there is no for enhancementofin the instant Such ascope compensation appeals.conclusion is being drawn while keeping in view the ratio of thepiecedents cited. Having tailed 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 ofitsagriculturalpurpose acquisition.

16.Upon scrutiny of the evidence on record, it becomes quiteapparentthat despite Village Masoodabaclbeing 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 aview is being taken as the acquiredland inquestion was admittedlyundevelopedand therefore, adoption of DDAauctionrates or L&DO rates is not permissiblein view of the dictum ofthe Apex Court in La! Chand (supra), which has been quoted withapproval by the Apex Court in its latest decision in TltakuvKuldeepSingh (supra).17. increase of 10% annum over and above theRegarding perminimum indicativeprice fixed by Governmentof NC'i^ of Delhi, thesame cannot be assailed by the respondentas the ReferenceCourt hasdone so while decision of the Court in Union of relying upon ApexIndia vs. Harpat, (2009) 14 SCC 375. This Court finds that the

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RclcrcnceCourt was justifiedin grantingthe aforesaidincreaseof 10% annum while the decisionper relyinguponjn Harpat(stipra).18.hi the light of the fore-goingnarration,I find no infirmityin theimpugned judgment in which fair compensationhas been assessed inrespectofthe acquiredland in question.ReferenceCourt has rightlynotclassified the acquired land in question into 'A' category and ^3'category, as [.and AcquisitionCollector in the Award in question hasunequivocally stated that no classification of the acquired land islequiiedto be done as the acquiredland is leveled.I9.theoftheas well asConsequentially, appeals appellants/claimantsappealsofUnion of hidia arc dismissed,while leavingthe partiesto beartheir own costs. Registry is directed to remit the compensationamount,II any, depositedby citherside with the RegistrarGeneralofthis Court,to the concerned Reference Court.

March 14, 2012pkb

^"T^NIL, GA[JR)JUDGE

i.A.App.No. 421/2010&ConncctodAppealsofvillageMasooclaT^ady