Gobind Ram Joshi v. Union of India & Anr.

0 LA.APP. 143/2012 This appeal pertains to acquisition of land of the appellant in Village- Masoodabad, which stood acquired vide Notification of 5 " August, 2003 under Section 4 of the Land Acquisition Act, 1894. • Counsel for the appellant fairly concedes that in view of order of this Court in LA.App No. 1195/2008 Ranbir Sharma Vs. Unin of India & Anr., rendered on 61h January, 2012, this appel has to be indeed dismissed. Accordingly, this appeal stands dismissed, with no order as to costs. —iiUR)

JUDGE MAY 029 2012 rs H LA.APPNo.14312012 Page 2 IN THE HIGH COURT OF i)ELII.i AT NEW DELHI 3 Reserved on: February 08, 2012 Pronounced on: March 14, 2012 LA.AP.P.42 1/2010 (VILLAGE MASOO[1])AIA[1])) SURESJI.PRASA.D alias HART KISHAN. Appellant lhrough: Mr.B.D.Sharrna Mr.S.K.Rout, Ms.Sukhda J)hamija and Mr.B.K.Routray, Advocates versus UNION OF JN.I)IA & ANR..... Respondents Through: Mr.Sanjay Poddar, Senior Advocate with Mr. Sanj ay Pathak Ms.K.Kiran Pathak, M.r. Surv a Nath Pandey, Mr. Yeeshij Jain and Ms.Navljn Swain, Advocates for LAC/UOj AND LA.App. No. 421/201() LA.App. No. 443/2010 LA.App. N[9]. 455/2010 LAApp. No. 458/2010 LA.App. No. 462/201() LA.App. No. 465/2010 LA.APP. No. 469/2010 LA.App. No. 478/2010. LA.App. No. 584/2010 LA.App.No. 1012/2010 LA.App. No. 441/2010 LA.App. No. 444/2010 LA.App. No. 456/2010 LA..App. Nb. 459/201 0

1. A.App. No. 463/2010 LA.App. No. 467/2010 LA.App. No. 470/2010 LA.App. No. 580/2010 LA.App. No. 585/2010 I A.App.No. 1013/2010 LA.App. No. 442/201() LA.App. No. 446/2010 LA. App. No. 457/2010 LA.App. No, 460/2010 LA.App. No. 464/201 0 iA.App.• NC). 468/2010 LA.App. No. 471/201.0 LA.App. No. 583/2010 LA.App.No.1 01 1/2010 LA.App. No. 1 2/20 12 AND APPEALS FILEI)13Y UNION OF INDIA LA.App. No., 746/201() LA.App. No. 59/2012 LA.App. No. 710/2011 LA.App. No., 747/2010 LA.App. No. 748/2010 LA.App. No. 749/201() LA.App. No. 751/2010 LA.App. No. 753/2010 LA.App. No. 754/2010 A.App. No. 421/2010 & Connected Appeals of Village Masoodahad Page '1 LA.App. No 755/201() LA.App. No. 859/2010 LA.App. No. 862/2010 LA.App. No. 866/2010 LA.App. No. 869/2010 LA.App. No. 21/2012 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 1 1 LA.App. No. 56/2012 LA.App. No. 858/2010 LA.App. No. 86112010 LA.App. No. 865/2010 LA..App. No. 868/2010 LA.App. No. 752/2010 a (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• IJON'BLE M..R. 1JUSTICE SUNIL GAUR ORDER. 14.03.2012

1. For Waja/garh Depot MR[7] Project', 610 bighas and 13 biswas of land of Village Masoodabad was acquired vide Notification of 5t11 August, 2003 under Section 4 of the Land Acquisition Act, 1 894 which was followed by Notification of 8tI August, 2003 under Section 6 of the Land Acquisition Act, 1894 resulting in passing of Award No.5/2005-06 granting compensation at the rate of R.s. 15.70 lacs per acre on the basis of indicative price fixed by the Government of NCT of I)eihi for the agricultural lands in Delhi. In the reference sought by the claimants, interest @1.0% per annum 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 the date of Notification, i.e., compensation amount stood enhanced to.Rs. 1 8,84,000 per acre for the acquired land in question. In the instant appeals, further enhancement of Rs.50 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 A.ward. Since the grounds urged in these appeals is............-.. JA.App. No. 421/2010 & Connected Appeals of Village Masoodahad Page 2 / common, therefore, by this common order, these appeals are being disposed of on behalf of the appellants/claimants it is urged that the learned Reterence 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 DI)A while allotting alternative plots is a valid basis to arrive at true market value of the acquired land in question. I)uring the course of hearing, it was pointed out by learned counsel for the appellants/claimants that Village Masoodahad was urbanized in the year 1963 and zonal development plan was prepared by I)elhi I)eveloprnent Authority in the year 1974 and the acquisition of the land in question was for the proposed residential purpose. Much reliance was placed upon Award (Ex.PW-I/3) pertaining to Village Mangolpur Khurd and Award (Ex.PW-1/4) of Village Moharnrnadpur Munirka of the Land Acquisition Collector, wherein compensation was assessed while taking into consideration the L&D() rates. It is pointed out that some parcel of acquired land abuts the main.Delhi-Najafgarh metalled road and in the adjoining Village Nangli Sakrawati, there are industries and Najafgarh Industrial Area is in the vicinity. According to the learned counsel for the appellants/claimants, the best piece.of evidence, i.e. allotment olland in Village Masoodabad and Najafgarh by I)I)A to I)elhi Jal 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 Tindey & Ors. Vs. Union ofIndia & Anr, 2000(54)DRJ (DB) 384; P.NSingli vs. Union of LA.App. No. 421/2010 & Connected Appeals of Village Masoodabad Page 3 india, 1997 I Al) (Dcl) 83; Har; Chaid i's. Union of India, 91(2001) I)LT 602; Delhi Development A uthority vs. LandAcquisition Collector & Ors., 1 30(2006) i)T 1(1)13); Alma Sing/i (died) through LRs vs. State of Haryana & Anr., AIR 2008 Sc 709; Mahabir Prasad Santuka and Ors. Vs Collector, Cuttack and Ors., (1987) 1 SCC 587; Thakur Ku/deep Singh (D) Thr. L.R. & Ors vs. Union qfIndia & Ors., AIR 2010 sc 1272; Om Prakash (D) by LRs & Ors. vs. Union of india & Anr., 2004 Viii Al) (SC) 37; Om Prakash vs. State of Haryana & Ors, 2011 IV AD (SC) 382; Sagunthala ('dead) through LRs vs. Special Tehsildar (L.A.) and ors., AIR 2010 sc 984; Mahesh Dattatray T/iirt/ikar vs. State of Maharashtra, AIR 2009 SC 2238, to assert that the compensation claimed in these appeals is just and reasonable.

7. on behalf of the respondents, it was asserted by learned Senior Counsel for the respondents that adoption of the auction rates of I)I)A or L&I)() rates in respect of agricultural land stands negated by the Apex Court in decision in Lal Chand vs. Union of india and Anr., (2009) 15 SCC 769. It was also urged by learned counsel for the respondents that despite Village Masoodabad being declared to he urbanized, the acquired land in question continued to be used as agricultural land and therefore, instances of Village Mangolpur Khurd and Village Mohamrnadpur Munirka are of no avail and the instance of allotment of land by T)i)i\ in favour of i)elhi Jal Board cannot he treated to he representative price of the lands in the vicinity as the evidence is lacking regarding said instances to be comparable for determining the market value, of the land in question. Reliance was placed upon decision of the Apex Court in Satpal & Ors. Vs. Union ofIndia, (1997) 11 SCC 423 to assert that if in a short period there is a sharp increase in price., than the usual prevalent trend in the market, such an instance cannot be taken as LA.App. No. 421/2010 & Connected Appeals of Village Masoodabad Page 4 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 place in the vicinity nor any building activity had started in the a4joining 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 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 mai'ket price of the land in question till its acquisition. It is asserted that doing away of classification of acquired lands in question by Reference Court is illogical and without any justification. Thus, setting 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 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:- "Comparable 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 the factors, inter alia, (1) the sale must be a genuine transaction, (2) the sale deed must have been executed at th time proximate to the date of issuance of notification under Section 4 of the Act; ('3) LA.App. No. 421/2010 & Connected Appeals of Village Masoodabad Page 5 the land covei ed by the sale inust he in the vicinity, of the acquired land; (4) the land covered by. the sale must be similar to the acquired land, and (5) size of the piol of the land covered by the sale be comparable to the acquired land. The sales instances should preferably be closest to the date Of the notification as then alone it would satisfj. the touchs lone of the principles contemplated under Section 23 of the Act, as held in Kanwar Singh v. Union of India, (1998)8 SCC 136."

II. ITaving 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 successful in discharging this burden or not. -

12. No doubt, purpose for which the accluisition is made is an important factor, 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 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 o he taken into consideration. It has been so reiterated by the Apex Court in Alma Sing/i (.supra). it is in this context, I have scrutinized the evidence on record and I find that there is hardly any evidence regaiding the topogi-aphy of the area adjoining the acquired land in question and the evidence led regarding the aks shizra (Ex.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 Village Masoodabad, there is Najafgarh drain, which LA.App. No. 421/201() & Connected Appeals of Village Masoodabad Page. 6 (1 instead of enhancing the potenialiy,.ratber diminishes it. The witness who was got examined to prove the aks shizra of Village Nangli Sakrawaii (Ex.PW-4/1) 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 me pu11Lua11y, potentiality of the acquired land in question. 13; There is no evidence to establish the comparability of the acquired lands under Award (Ex.PW-/3) pertaining to Village Mangolpur Khurd and under Award (Ex.PW-1/4) of Village Mohammu'ldpur Munirka with the, acquired land in question. Rather, as per evidence of the concerned official (PW-lO), Award (Ex.PW-iO/) pertained to West Patel Nagar for Metro Project. Thus, in the considered opinion of this Court, Reference Court has rightly excluded the aforesaid Awards (Ex.PW-l/3 & Ex.PW-l/4) to determine the fair market value of the acquired land in question. Self serving deposition of claimants regarding potentiality of acquired lands in question, in the absence of corroborative evidence, is not enough to return positive finding on this crucial aspect, particularly in view of the fact that evidence regarding industries being there in the vicinity 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 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, R.eference Court has rightly not relied upon the Delhi Jal Board instance (Ex.PW-4/1).

5. it has come in evidence of the appellants/Claimants that there is no Government hospital or college in Village Masoodabad and the evidence Page 7 LA.App. No. 421/2010 & Connected regarding the acquired land in question being surrounded by developed colonies is lacking. in the face of such deficient evidence,, there is no 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 failed 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 ihdicative price of the agricultural land by Government of NCT of I)elhi as undisputedly, the acquired land in question were being used for agricultural purpose at the time of its acquisition. Upon scrutiny of the evidence on record, it becomes quite • apparent that despite Village Masoodahad 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 I)elhi 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 DDA auction rates or L&DO rates is not permissible in view of the dictum of the Apex Court in La! Ghand (supra), which has been quoted with approval by the Apex Court in its latest decision in Thakur Kuideep Sing/i (supra)L. Regarding increase of 10% per annum over and above the minimum indicative price fixed by Government of NCT of Delhi, the same cannot be assailed by the respondent as the Reference Court has done so while relying upon decision of the Apex Court in Union of India vs. Harpat, (2009) 14 SCC 375. This Court finds that the LA.App. No. 421/2010 & Connected Appeals of Village Masoodabad Page 8 Reference Court was justified in granfing the aforesaid increase of 10% per annum while relying upon the decision in Hàrpai (supra). 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. Reference 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 tobe done as the acquired land is leveled. Consequentially, the appeals of the appellants/clajmaiits as well as appeals of Union of India are dismissed, while leaving the parties to bear their own costs. Registry is directed to remit the compensation amount, if any, deposited by either side with the Registrar (Ineral of this Court, to the concerned Reference Court. SUN1L GAtJR) JUDGE March 14, 2012 pkh JCA / k LA.App. No, 42/201 0 & Cbnnected Appeals of Village Masoodabad Page 9 $13 * IN THE HIGH COURT OF DELHI AT NEW DELHI • + LA.APP. 143/2012 • GOBIND RAM JOSHI DECD THR LRS Appellant Through: Proxy counsel (appearance not given)

VERSUS

JUSTICE SUNIL GAUR ORDER 12.12.2012 k. Vide office note, typographical error pointed out in the order of Iid May 2012 is that instead of LA.App. No.421/2010, Suresh Pashad alias 1-Jan Kishan vs. Union ofIndia & ann., inadvertently citation of LA.App. No. 1 195/2008 Ranbir Sharma vs. Union of India, rendered on 6th January, 2012 has been noted. Let LA.App. No. 421/2010, Suresh Parshad alias Han Kihan vs. Union of India & ann., rendered on 1 4th March, 2012, be substituted in place of LA. App. No. 1195/2008, Ranbir Shanma vs. nd Union of India, rendered on January, 2012 in the order of 2• May, 2012. iLGAUR,J. DECEMBER 12, 2012 pkI