Union of India v. Rajesh Khatri & Anr

ORDER

23.12.2011 For orders see LA.APP No. 608 of 2009. December 23, 2011 rs LA.App No.608/2009 & Connected matters JIL GAUR) JUDGE Page 2 IN THE HIGH COURT OF DELHIAT NEW ^ , Rpsprvedon: Noveiyber^Ml Pronouncedon: 23' December,2011_ + T.A AFP No,608/2009 SHRIl^LAMESHKUMAR na ""vp"^p'-un : Through: Mr. Deepak Kliosla & Mr. V.P. R.ma, Advocates. versus union of INDIA &ORS. ••••• with Through- -Mr. Sanjay Podar, Senior Advocate with Mr.Sanjay'Kumar Pathak, Ms. K.Kaiaoudi Ku-an, Mr. Mohitrao Jadhav & Ms. Navhn Swam, Advocates. AND LAAPM15MU.LA,^^ 1-^0/9010 TAAPP 176/20.10 & CM No. 12873/^JJ_^iWiLL T-T^Tr^^T^nnin TAAPP 229/2010, LA,MP233Z2giO,_J^V,AJLL 9S6/7010&CM No. 17Q34/2011(cross obie_ctionsl^IAAPP-^^^^^^ TT^po^p/onT?^.T.A APP ^9 /2010rLAAPP_271/mQ^.APL lAAPP •4.17/7010 & CM No.3584/20U (cross obiections), 419/7.010. LA APP 425/2010. LA.APP 4^/?.0iQ, I.A./>£g^6-/2M. TAApp \j7/7ni0 T.A APP 548/2010,fLA.ATO 54,^201o7Ul.A!^ ^0/7010 rA.APP 551/2010/lA.APP55~mOTO^^^£5ia I AAPP 5.54/2010 T^ APP •;-;s/9nio T.A APP 556/2010, LA.-A1:£ 557/7010 LA.APP 55R/7.010. LA.APP 550/7,010, LA.APP 560M10. LA.APP 561/2010, ],A.APP 562/2010, LA.APP 563/2010, '.^.i/7nin TA APP 565/2010. T.A APP 567/2010. LA.APP I AAPP 569/2010. LA.APP 570/2010. LA.APP 571/2010, LA.AJ'P 77/7010 LA.APP TA APP S74/7010. LAAPP 57S/20m I.A APP 576/2010. T.A.APP 77.0/2011, LA.APP 771/2010. LA^^^ 777/7.010. LA APP 773/2010 LA.APP 774/7.010, LA.APP 77j/ma. LA-AppNo.608/2009SConnectedmatters ' ^3gel ' T.A.APP 805/2010..LA.APP 822/2010, LA.APP 824/2010 & CM No.l0333/20i1 (cross-objection),LA.APP 864/2010,LA.APP 901/2010^ LA.APP 902/2010, LA.APP 962/2010..LA.APP 1014/2010, LA.APP 1015/2010, LA.APP 1016/2010, LA.APP 1027/2010,—LA^.PP 1032/2010.LA.APP 1035/2010,LA.APP 1037/2010,LA.APP 1038/2Qi0 & CM No.12952/2011 Tcross-obiections),LA.APP 1039/2010 (CM No.12875/2011 & CM No.12876/2011 (cross objections), LA.APP 154/2011. LA.APP 158/20.11. LA.APP 274/2011, LA.APP 368/2011, LA.APP 379/2011. LA.APP 384/2011 & LA.APP 411/2011 Ih (Relating to NotificationNo. F.No.ll(36)/94-L&B/LA/5722dated 5 April, 1995 issuedunder Section4 ofthe Land AcquisitionAct, 1894 & Award No. 19/97-98, Village-Shalipur Garhi, Delhi) COliAM: HON'BLE MR. JUSTICE SUNIL GAUR ORDER ' • 2312.2011

¶1The above captionedappeals arise out of Award No.19/97-98 of the concernedLand AcquisitionCollectorpertainingto the agricultural land in the revenue estate of Village-Shahpiir Garhi, Delhi, which was .acquired by the respondentvide Notificationof 5^'^ April, 1995 under Section 4 of the Land Acquisition Act, 1894. The market price of the acquired land in question-was determined by the Land Acquisition Collector@^8,01,600/-per acre or ^1,67,000/-per bigha.'

¶2In the Reference sought under Section 18 of the Land Acquisition Act, 1894 by the claimants/ land owners i.e. the appellants, the Reference Court has enliancedthe compensation to ?8,16,720/- per acre. Not satisfied with the aforesaid enhancement of ?15,120/- per acre for the acquired land, appellantshave,come up in these appeals to seek much higher compensationi.e. enhanced compensation@ ?100/- per square yard.

¶3For development of Freight Complex in Narela Project, vide Notificationof 5^'' April, 1995, under Section4 of tlie'LandAcquisition LA.App No.608/2009&Connectedmatters Page2 I' R I;!;; & I'-'i.', j !!./• I '' i!l ; 'i:i Act, a large area of agriculturalland measuring733 bighas and 10 biswas of Village-SliahpurGarhi, Delhi was acquiredby the respondents.The factual details disclosing as to how in-pursuance to the aforesaid Notification,AwardNo. 19/97-98cameto bepassedand the substanceof the evidenceled beforethe ReferenceCourtstandsnotedin the impugned judgmentand is not requiredto be recapitulated.

¶4Before the Reference Court, assessment of the market value of the acquiredland in questionwas soughton the basis ofDDA predetermined rate of the year 1992-93pertainingto Narela ResidentialScheme and on the strengthofDSIDC approvedlandrate for allotment'ofplots in Narela hidustrialComplex,which stands negated in the impugnedorder while relying upon decision of the Apex Court in Union of India Kv. Ram F/joo/.(2003) 10 see 167. On the aspect ofpotentialityofthe acquired land in question being near the developed land, Reference Court has extensivelyrelied upon DivisionBench decisionofthis Court in Gajraj Singh Vs. Union of India 2006 VI AD (Delhi) 13 in maintaining enhancement@11.5% from the effectivedate of governmentpolicy of fixing minimum price of agriculturallands in Delhi, till Notification under Section4 ofthe Land AcquisitionAct was issued.Notingthat the boundary of Village-Shahpur Garhi touches the boundary of Village-HolambiKalan,ReferenceCourt in the impugnedjudgmenthas assessed the compensationin the instant case on the basis of the compensation, assessedby this Courtin GqjrajSingh (Supra)relatingto Notificationof 15"' November, 1996, under Section4of Land AcquisitionAct, 1894, pertaining to Village - Holambi Kalan.

¶5In theseappeals,at the final hearing,the counselspresenton behalf ofthe appellantsas well as seniorcounselfor the respondentswere heard and with their assistance,the impugnedjudgment and the record was LA.App No.608/2009 & Connected matters • Page 3 r/' ^y'y' r' perused. Since tlie submissions adK^anced by both the sides in these appealswere common,therefore,with the consentoflearnedcounselfor the parties,these appeals and cross-objectionsare being decidedby this common order. ' .

¶6The grounds of challenge to the Award of Land Acquisition Collector before the Reference Court are being noticed herein, for the reason that the same very grounds have been urged in these appeals on behalf of the appellants. These are:- 'i) That LAC has given very low rate of market value though the land of the petitioner has .got potential value as the land of the petitioner is surrounded by the biggest colony of Asia namelyRohini and the land was acquired for the commercial activities;

ii) that LAC has not taken into considerationthat land has been acquired for commercial activities such as for setting of freight complex, therefore, market value of the land sliould be fixed at the rate of Rs.5,000/- per sq.meter.

iii) that his land is situated quite close to the residential area of Narela and DSIDC Complex due to which his land has more potential value;

iv) that land of the petitioneris betweentwo roads including a national highway i.e. Government Karnal Road, and Delhi Narela Road, therefore, it has great potentialityfor residentialandcommercialpurposes; that palatial farm house has been constructed in the same revenue estate in which land of the petitioner has been situated;

v) that land of the petitioneris fully developedand has all the modern facilities/ necessities i.e. telephone,, electric, connection,water supply, public schools and SSN College and most frequent service of DTC buses and other private transport.'

¶7In substance, aforesaid grounds are the submissions advanced on behalfof the appellantsbeforethis Courtto challengethe impugnedorder of the ReferenceCourt. Undisputedly,the land use of the acquiredland in LA.App No.608/2009 &Connectedmatters . ' Page 4 54'' . ' • r' question was agriculturalat the time of issuance of Notificationunder Section4 of Land AcquisitionAct in question.The main groundto seek enhancementof compensationput forth on behalfof the appellantsis the potentialvalue of the land in question.Thoughthe standofthe appellants herein before the Reference Court was that the land in question is strategically located from the commercial and industrial point of view, as ) it is just two kilometres away from Narela Green Mandi and three kilometres away from DSIDC Industrial Complex and that if has a great market value and potentiality, as it has been acquired for the development of Rohini Residential Scheme.

¶8Appellants claim that acquired land is in close proximity of Industrial Area developed by DSIDC and residential colony developed by DDA, and they rely upon Letter of Allotment (EX. PW-l/A) of a plot in Narela Industrial Complex @ ^650/- per square meter in the year 1990 by DSIDC. It is also claimed by the appellants that allotment of alternate plot under the Narela Residential Scheme by DDA in the year 1992-93, was available @ ^650/- per square meter as per demand cum allotment letter (EX. PW2/1). Thus, seeking parity with aforesaid rates of developed lands, enhancement in compensation is sought by' the appellants.

¶9On the factual aspect, it stands noted in the impugned judgment that the land of the villages adjoining the village in question, including village-Holambi Kalan, has been acquired for the development of industrial area and Narela residential area in Narela. Conceding that the acquired, land is in proximity of the industrial area developed by DSIDC, learned senior counsel for the respondent has clarified that the purpose of acquisition of the land in question is solely for the development of freight complex in Narela. However, it was disputed that the acquired land in LA.App No.608/2009 & Connected matters Page 5 question is surrounded by any developed .colony and thus, it was contended that the appellants cannot claim enhancement (3f the' compensation by relying upon the rate of land in Narela Industrial Complex Or under the Narela Residential Scheme floated by DDA. In this regard reliance was placed upon the decision of the Apex Court in Lai Chand Vs. Union of India & Anr, (2009) 15 SCC 769. Reliance v/as also placed upon a decision of a Coordinate Bench of this Court in LA.APP 266/2008Jai Singh Vs, Union ofIndia &'Anr. , renderedon August, 2011, wherein in relation to.this village, pertainingto an acquisition of land vide Notificationof 16^'^ May, 2002, amount of compensationwas determined at ?18,65,500/-per acre while relying upon a DivisionBench decisionof this Courtin Gajraj Singh Vs. Union ofIndia 2006 IV AD (Delhi) 13.

¶10Even in the impugnedjudgment,in the absence of sale instances', Reference Court has relied upon Gajraj Singh (Supra), wherein pertainingto acquisitionof the land of the adjoiningvillage-Holambi Kalan, in relation to Notification of 15^'' November, 1996, the compensationdeterminedwas @ ^9,76,121/-per acre for A Category land and @?9,51,121/-per acre fox B Categoryland.

¶11ReferenceCourt has rightly concludedthat grounds of challenge laid to the Award, as noted in paragraphNo.6 herein above, againstthe Award inquestion,remainsunsubstantiatedby the=appellants.

¶12While relying upon two decisions of the Apex Court in Bhim Singh Vs. State ofHaiyana (2003) 10 SCC 529 & Union ofIndia Vs. 'Ram Phool (2003) 10 SCC 167, claim of the appellantsto apply DDA and DSIDC rates to the land in questionstands repelledby holding that no willingpurchaserwould buy agriculturalland in questionatthe rate on whichgovernmentis allottingdevelopedland. LA.AppNo.608/2009&Connectedmatters Page (3 •

¶13During the course of hearing, learned counsel for the appellants were not able to show that the aforesaid decisions are inapplicable nor i any decision to the contrary was cited. Infact, Apex Court in its recent decision in Lai Chand Vs, Union of India (2009) 15 SCC 769 has reiterated in no uncertain terms that the rates for allotment of developed .. land by the DDA cannot be the basis for calculation of the market value of the acquired undeveloped lands. The pertinent observations made in paragraphs No.44 & 48 in Lai Chand (Supra), which deserves to be highlighted, are as under '44. One of the recognized methods for determination of market vahie is with reference to the opinion ofexperts. The estimation of market value by such statutorily constituted Expert Committees, as expert evidence can therefore form, the basis for determining the market value in land, acquisition cases, as a relevant piece ofevidence. It will be however open, to either party to place evidence to dislodge the presumption that mayflow from such,guideline market value. We, however, hasten, to add that the guideline market value can. be a. releva.n.t piece of evidence only if they are assessed, by statutorily appointed Expert Committees, in accordance with the prescribed assessment procedure (either streetwise, or roadwise, or areawi.se, or villa.gewi.se) and finalized after inciting objections and published, in the gazette. Be that as it m.ay.

¶48Even if the relied upon transaction is only t)A>o to three years prior to the acquisition, the Court shoidd, before adopting a standard escalation, satisfy itself that there were no adverse circumstances. For example, if the acqidsition is of the year 2009, it may not be possible to determine the market value, based on the 2007 or 2008 prices, by providing an increase of 12yo or 15% per year, as the newspaper reports disclose that the price of immovableproperties in most areas of the country came down, by more than 40%Jo 50%from, the 2007 rates. Caution is therefore necessary before increasing the price y\nth reference to the old transactions. Be that as it may. It is clear that the award, made in regard to. a. 1961 acquisition Mnll not be of any usefor determining the m.arket valuefor a 1981 acqidsition.' LA.App No.608/2009&Connectedmatters Page 7 iSfe r'" - •' •14. The aforesaiddecisionofthe Apex Courtin LaiSingh (Supra),has been followedby aCoordinateBenchofthis Courtin JaiSingh (Supra), whichalso applieson all fours inthesemattersas well.

¶15On the potentialityaspect,neitherthe map /sizra(EX. PW3/A)nor any other evidence,establishesthat apart from the DSIDC, there is any developmentin the vicinity of the acquired land. As already observed above, no sale instancesofthe nearbyarea are forthcomingto depictthe potentialityofthe area in question.It has to be kept in mind that the land in questionhas beenacquiredfor developmentofthe freightcomplexand not for the developmentofaresidentialarea. Exceptthe oral assertionof the appellants/claimantsthat the acquiredland is for the developmentof the RohiniResidentialArea,thereis no tangibleevidenceto establishdiis factual assertion.

¶16Cross objectionsfiled by the respondentsto maintainthe rate of compensationfixed by the Land AcquisitionCollector'and not to adopt the ratio ofdecisionin Gajra](Supra), are found to be withoutsubstaace foi the reason that undisputedlyGajraj (Supra) has attainedfinalityand becauseit has not been shown by the respondentsas to how this decision of the DivisionBench of this Court has been wrongly applied by the ReferenceCourt to the facts of the instantcases. Rather,I find that the ReferenceCourthas correctlyrelieduponthe decisionin Gajraj(Supra), to arriveat the correctmarketvalueofthe acquiredlandin question.

¶17Since the decision of the DivisionBench-of this case in Gajraj (Supra), has attained finality and it is the basis of,the decision of a CoordinateBenchofthis Courtin JaiSingh (Supra),and is also the basis of the impugned order, therefore,I find no infirmityin the impugned order, adoptingthe rate of compensationas fixed by DivisionBendi of this Court in Gajraj(Supra),in the matterofadjoiningvillage-Holainbi LA.AppNo.608/2009&Connectedmatters Page 8 11?'!''j ' • ii^"' : /' Kalan. Even the reductionofthe rate ofcompensationassessed@11.5% compoundinterestfrom the date ofNotificationof 15"^ November, ]996 in Gajraj(Supra)to date ofNotificationof S"' April, 1995 in the^instant case IS concerned,I find the sameto be in conformityAvith the decisionin Gajraj (Supra), wherein annual compounding @11.5% has been approved.

¶18As neither side could fmd fault iii the-impugned judgment determiningtlie marketvalue of the land in question@?8,16,720/-per acre, therefore,the appealsofthe claimantas well as cross-objectionsof (he respondentsare dismissed,withno orderas to costs.Accordingly,all the above-mentionedappeals and cross-objectionsare disposedof with direction to the Registiy to remit the compensatioiiamount, if any, depositedby eitlierside with the Registrai'Generalof this Court, to the concerned Reference Court. December 23, 2011 l\S LA.App No.608/2009&Connectedmatters Page; 9

% + IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 8^'^November, 2011 Pronounced on: 23''^December, 2011 130/2010, LA.APP 176/2010 & CM No. 12873/2011, LA.APP 177/2010, LA.APP 179/2010, LA.APP 184/2010, LA.APP 214/2010, LA.APP219/2010, LA.APP 229/2010, LA.APP233/2010, LA.APP 234/2010, LA.APP 235/2010, LA.APP 236/2010, LA.APP 237/2010, LA.APP 240/2010, LA.APP 241/2010, LA.APP 255/2010, LA.APP 256/2010 & CM No. 12934/2011 (cross objections), LA.APP 257/2010, LA. APP. 258/2010, LA. APP /2010, LA.APP ' 271/2010, LA.APP 413/2010, LA.APP 414/2010, LA.APP 415/2010, LA.APP 416/2010, LA.APP 417/2010 & CM No.3584/2011 (cross objections), LA.APP 419/2010, LA.APP 425/2010, LA.APP 453/2010, LA. APP 546/2010, LA.APP 547/2010, LA.APP 548/2010, LA.APP 549/20.1JQ, LA.APP 550/2010, LA.APP 551/2010, LA.APP 552/2010, LA.APP 553/2010, LA.APP 554/2010, LA.APP 555/2010, LA.APP 556/2010, LA.APP 557/2010, LA.APP 558/2010, LA.APP 559/2010, LA.APP 560/2010, LA.APP 561/2010, LA.APP 562/2010, LA.APP 563/2010, LA.APP 564/2010, LA.APP 565/2010, LA.APP 567/2010, LA.APP 568/2010, LA.APP 569/2010, LA.APP 570/2010, LA.APP 571/2010, LA.APP 572/2010, LA.APP 573/2010, LA.APP 574/2010, LA.APP 575/2010, LA.APP 576/2010, LA.APP 770/2011, LA.APP 771/2010, LA.APP 772/2010, LA.APP 773/2010, LA.APP 774/2010, LA.APP 775/2010, LA.APP 805/2010, LA.APP 822/2010, LA.APP 824/2010 & CM No. 10333/2011 (cross-objection). LA.APP 864/2010, LA.APP 901/2010, LA.APP 902/2010, LA.APP 962/2010, LA.APP 1014/2010, LA.APP 1015/2010, LA.APP 1016/2010, LA.APP 1027/2010, LA.APP 1032/2010, LA.APP 1035/2010, LA.APP 1037/2010, LA.APP 1038/2010 & CM No.12952/2011 (cross-objections), LA.APP 1039/2010 (CM No.12875/2011 & CM No. 12876/2011 (cross objections), LA.APP 154/2011, LA.APP 158/2011, LA.APP 274/2011, LA.APP 368/2011, LA.APP 379/2011, LA.APP 384/2011 & LA.APP 411/2011 (Relating to Notification No. F.No.l l(36)/94-L&B/LA/5722 dated LA.App No.608/2009 & Connected matters Page 1 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. 5"" April, 1995 issuedunderSection4 oftheLand AcquisitionAct, 1894 & Award No. 19/97-98, Village- Shahpur Garhi, Delhi) Present: Mr. Deepak Khosla & Mr. V.P. Rana, Advocates for appellants. Mr. Sanjay Podar, Senior Advocate with Mr.Sanjay Kumar Pathak, Ms. K.Kamoudi Kiran, Mr. Mohit Rao Jadhav & Ms. Navlin Swain, Advocates. CORAM: HON'BLE MR. JUSTICE SUNIL GAUR