Delhi District Court
Sh. Prem Nath Malhotra vs Union Of India on 21 February, 2007
IN THE COURT OF SHRI YASHWANT KUMAR :
ADDITIONAL DISTRICT JUDGE (LAC) : DELHI
LAC NO : 71/1/06 AWARD NO : 03/1999-00
(Old LAC No. 15/03) VILLAGE : Delhi Patti.
In the matter of :
1 Sh. Prem Nath Malhotra
S/o late Sh. Munshi Ram
R/o 966/37, Jandi Street,
Harbanspura, Ludhiana (Pb)
2 Smt. Sheela Rani
W/o late Sh. Munshi Ram
R/o 966/37, Jandi Street,
Harbanspura, Ludhiana (Pb)
3 Sh. Anil Kumar Malhotra
S/o late Sh. Munshi Ram
R/o 966/37, Jandi Street,
Harbanspura, Ludhiana (Pb)
4 Sh. Om Parkash Malhotra
S/o late Sh. Munshi Ram
R/o H. No.601, Gali No.2,
Hargobind Nagar, Ludhiana (Pb)
...Petitioners
Versus
Union of India
through Lan Acquisition
Collector/ADM, North Distt.,
Tis Hazari Courts, Delhi
...Respondent
AWARD REFERENCE U/S 18 OF THE LAND ACQUISITION ACT 1 Vide notification No.F.7(35)95/L&B/LA/11/5506 dated 12.06.1997 U/s 4 of the Land Acquisition Act (hereinafter referred to as the ACT) and declaration was also made vide notification No.F.7(35)95/L&B/LA/11/8918 dated 28.07.1997 U/sec. 6 of the LA Act, The land including the land of the petitioners vide bearing kh. no.828/756/419 measuring 1 bigha 11 biswas situated in the revenue estate of village Delhi Patti (Pul Bungash Area), Delhi was acquired by the Government for public purpose namely for ''Mass Rapid Transit System Project''. The Land Acquisition Collector, Delhi (hereinafter referred to as LAC) after completing all the requisite formalities as provided under the Act passed the award bearing No.03/1999-00 and awarded the compensation @ Rs. 1,247/- per sq. mtr.
2 Feeling dissatisfied with the quantum of compensation awarded by the LAC, the petitioners herein filed reference petition U/s 18 of the LA Act for proper adjudication/market value which was sent to the reference court. 3 In the reference petition, the petitioners have sought the enhancement of compensation on the grounds that the petitioners are the legal heir of late Sh.Deviditta Mal & late Sh.Hans Raj who had purchased the aforesaid acquired land along with others co-owners late Sh.Agia Ram & late Sh.Kidar Nath in public auction held on 05.01.1959 by the Government of India, Ministry of Rehabilitation against adjustment of the money in respect of their claims of the properties left by them in Pakistan at the time of the partition of the country. The petitioners, became the legal heir after their death and were in possession and use of the acquired land in question. The compensation amount which has been awarded and being paid at the rate of Rs.1,247/- per sq. yard is neither fair nor reasonable and is too low taking into consideration the nature and potential values of the land in question. The land owned by the petitioners was purchased by their ancestors against the adjustment of amount of the compensation of their properties left in Pakistan. The land owned by the petitioners is situated on the main high- way and abutted on more than 100 ft. wide road on its front. It is not situated in the narrow street and congested locality. It is most conveniently approachable being situated on the main highway. It is situated between the two important railway stations of the capital viz. Sabzi Mandi and Kishanganj. It is also situated in close proximity of the highly developed commercial area and biggest business centres like Azad Market, Sabzi Mandi, old Rohtak Road, rohtak Road and Sadar etc. The market price of the land even at the time of acquisition of the land was not less than Rs.25,000/- to Rs.30,000/- per sq. mtr and even the L&DO land rates as notified by the Government for the land price in this area is much more than awarded by the LAC for the land in question. On these grounds, the petitioners have filed this reference petition.
4 The UOI, in its written statement has raised the objections on the ground that the land has been acquired for the public porpose namely, Mass Rapid Transit System Project. Notices u/s 9 &10 were issued to the land owners/ interested persons inviting claims of the affected properties. Pursuant to the notices, number of claims were filed by the affected persons claiming different value of the land and properties. The claim of the petitioner with respect to measurements, apportionment and compensation of the land is admitted to the extent of section 19 statement of the LA Act. The compensations assessed by the LAC is sufficient and reasonable and it reflects the true market value prevailing at the time of the notification u/s 4 of the LA Act. Various factors were taken into account while assessing the market value. The petitioner is claiming excessive and exorbitant market value of the land and structures. The LAC considered the market value of the land at the date of publication of notification u/s 4 of the Act i.e. on 12.06.1997. The LAC in order to assess the fair market value of the land considered the ''schedule of market rates'' of lands in various locality in Delhi issued by the Ministry of Urban Affairs & Employment, Government of India for land transfer for the corresponding period i.e. 01.04.1996 till 31.03.1998 which were in a very higher side. The LAC rightly assessed the market value of the land keeping in view all the aspects enumerated u/s 23 & 24 of the LA Act. The LAC assessed the fair market value of the land after considering its current use, potentiality for the future land use, proximity of land to the nearby area. The LAC also considered the permissive use of the land of the area of the land in question under the master plan. The market value of the land assessed at Rs.1,247/- per sq. mtr.
5 DMRC, in its written statement, has stated that the petitioners are said to be one of the legal heir of co-owners (late Sh.Devidutta Mal, Sh.Hans Raj, Sh.Agia Ram and Sh.Kedar Nath) of vacant plot no.829/756/419 measuring 1 bigha and 11 biswas. The possession of the plot was taken on 10.08.2000. The land was taken over vide LAC award No.03/1999-2000. The possession of the land has been taken over for the Delhi Metro Rail Project, rest of the contentions are denied and need no reply on behalf of the answering respondent. The land in question was vacant land/ plot having no structure on the plot only one boundary wall existed towards the road side and the land was required for MRTS Project for Pratap Nagar Station. The amount of the compensation awarded by the LAC is adequate and just. All the averments made in the reference petition have been denied except those specifically admitted in the written statement by DMRC. 6 On the pleadings of the parties, the following issues were framed by this court on 18.05.2006 which are as under :
1 What was the market value of the land in question at the time of issuance of notice u/s 4 of the LA Act? Onus on parties.
2 Whether the petitioner is entitled to enhancement of compensation, if so, to what amount? OPP 3 Relief
7 The petitioners in support of their case for enhancement in compensation have examined Sh.Joginder Lal Malhotra S/o late Sh.Diwan Chand Malhotra as PW1 who has exhibited the copy of the award no.5/DC/N/2001-2002 as Ex.PW1/1 and the copy of the award No.12/2001- 2002 as Ex.PW1/2. Sh.Subhash Malhotra S/o late Sh.Bhagwan Dass Malhotra has been examined as PW2. Sh.Roop Singh, LDC from Land & Development office, Govt. of India, Nirman Bhawan, New Delhi has been examined as PW3 who has proved the schedule of market rates, Ministry of Urban Affiars & Employment, Land Devisioin, Nirman Bhawan, New Delhi as Ex.PW3/1. Whereas, the counsel for the respondents have tendered in evidence the award no.3/1999-2000 of village Delhi Patti dt. 30.07.1999 as Ex.R-1, photocopy of the sale deed executed & registered on 26.05.1959 as Mark-A, photocopy of the sale deed dt. 04.07.1958 as Mark-B. (the attested copies of the said sale deeds have already been exhibited in LAC No.72/1/06. The copy of the sale deed no.2046 executed & registered on 13.03.1995 by Ms. Shamina Khatoon & Ors in favour of Ms.Amna Bi as Ex.R-2. Copy of sale deed no.7421 executed & registered on 14.01.1997 as Ex.R-3. (certified copies of the said sale deeds have already been filed in LAC NO.76/1/06). 8 I have heard the Ld. Counsel for both the parties and have perused the entire records. My issue-wise findings are as under:- ISSUE NOS. 1 & 2 9 Both issues are inter-connected and I shall decide both the issues together. The onus to prove these issues is upon the petitioners. The petitioners have sought enhancement in compensation on the aforesaid grounds which are not repeated herein for the sake of brevity. Before considering & evaluating the market value of the acquired land on the date of notification i.e. 12.06.1997 U/sec. 4 of the LA Act, I would prefer to rely upon the judgments of the Hon'ble Supreme Court of India as well as the Hon'ble High Court of Delhi. The basic test was laid down by the Hon'ble Supreme Court in Special Dy. Collector & Anr. Vs Kurra Sambasiva Rao & Others, AIR 1997 SC 2625 and it was held that :
''The court is required to keep at the back of its mind that the object of assessment is to arrive at reasonable and adequate market value of the lands. In that process, though some guess work is involved. Feats of imagination should be eschewed and mechanical assessment of the evidence should be avoided. Even in the absence of oral evidence adduced by the Land Acquisition Officer or the beneficiaries, the judges are to draw from their experience the normal human conduct of the parties and bona fide and genuine sale transactions are guiding star in evaluating the evidence. Misplaced sympathies or undue emphasis solely on the claimants right to compensation would place very heavy burden on the public exchequer to which other everyone contributes by direct or indirect taxes'' In P.Ram Reddy & Others Vs Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad & Ors (1995) 2 Supreme Court cases 305, the Hon'ble Supreme Court of India held that :
''Building potentiality has to be decided on the basis of material placed on record or made available and as such material must be supported by reliable documentary evidence. Therefore, if the acquired land has the building potentiality, its value, like the value of any other potentiality of the land should necessarily be taken into account for determining the market value of such land.'' In Spl. Tehsildar, Land Acqn. Vishakhapatnam Vs Smt. A. Mangala Gowri AIR 1992 Supreme Court 666, it was held by the Hon'ble Supreme Court of India that :
''In determining the market value of the land, the price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land possessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notification would supply the date to assess the market value. Where there were bona fide and genuine sale transactions in respect of the same land under acquisition wherein the claimant who was vendee had sold at Rs.5 per sq. yard, the High Court would not be justified in excluding such transactions and placing reliance on award of some other land for awarding compensation at the rate of Rs.10 per sq. yard, within a time lag of nine months from the bona fide transaction by seller.''
10 The LAC, in the award no.3/1999-2000 Ex.R-1, has considered the claims of the 63 interested persons including the petitioners herein and decided his claims that ''in response to the notices issued U/s 9 & 10 of the LA Act, as many as 63 claims were received from the interested persons. The list of claims and evidence has been attached herewith containing full details. But in support of claims/ demands put forth by the claimants, no logical reasons have been submitted neither any documentary evidence have been enclosed in support of thier claims''. Further, the LAC in the said award Ex.R-1 while assessing the market value of the acquired land as on 12.06.1997 i.e. the date of notification U/s 4 of the LA Act has also considered several factors such as location of the land, claims filed by the interested persons, sale prices of similar lands sold in the neighbourhood over a period of five years before the date of notification u/s 4 of the LA Act. 11 The sale deeds of the land situate Pul Bangash, Azad Market, Malka Ganj, Jawahar Nagar & Subzi Mandi from the year 1993 to 1997 have been considered by the LAC in the award Ex.R-1. In the said sale deeds, the rate is varying from 324.00 per sq. yard to 2857.14 per sq. yard. The LAC, to remove the inconsistencies among these prices, calculated and taken into consideration the average sale price which worked out to Rs.1303/- per sq. yard. The LAC further considered that this sale consideration includes the sale price of land and sale price of structures appurtenant thereto. In this area, the structures are quite old and are constructed in a haphazard manner. The quality of consitruction is poor, most of these are temporary sheds. Hence, the LAC considered appropriate ratio of the cost of land to the cost of construction at 80 : 20 i.e. 80% to the cost of land and 20% to the cost of structure. On this principle, according to the LAC, the average sale price of the land only works out to Rs.1043/- per sq. yard or Rs.1,247/- per sq. mtr. Besides the above method, another method of using the 'Schedule of Market Rates' issued by the Ministry of Urban Affairs & Employment, Govt. of India for land transfers in Delhi was also considered. As per the schedule, the prices for land transfer for the corresponding period i.e. 01.04.1996 till 31.03.1998 which comes to Rs.6300/- per sq. mtr for residential areas and Rs.12,600/- per sq. mtr. for commercial areas have been noted and before arriving at fair market value, the LAC observed the following factors including the land under acquisition :
A The nature of land use is mixed. Petty commercial establishments, non-conforming household industries, one go- down, small rooms on top of the shops used for residence, cover the area.
B The area is not located on the main road and can be approached through a narrow opening from the main road. C The area is surrounded by squatter settlements on the front and railway line on the back.
12 The LAC observed that perusal of the above factors indicates that the potential for development in this area is very limited. Therefore, keeping the above in mind, the LAC considered that the rates indicted by the Ministry of Urban Affairs & Employment are on a very higher side particularly for this area in comparison to the actual registered rates on transfer of similar lands.
Thus, the LAC considered the market value arrived at by averaging the registered sale prices registered over five years of similar lands in the neighbourhood as the 'Fair Market Value' which was assessed at Rs.1,247/- per sq. mtr for the land and the same was finalized as the basis for compensation.
13 I would also prefer to place a reliance upon the judgment dt. 03.03.2005 in WP (C ) 76-79/2004 titled Chet Ram Sharma & Ors Vs UOI & Ors, the land situate in village Bahapur, New Delhi was acquired vide the notification dt. 28.11.2002 U/s 4 (1) r/w/sec. 17 (1) (4) of the LA Act, the Hon'ble High Court of Delhi observed that :
''Not much material has been placed before us which could help the court to determine the fair market value of the land in question while the petitioners have placed whole emphasis on the fact that the land sought to be acquired by the respondents vide their notification U/s 4 dt. 28.11.2002 is part of a fully developed commercial area and has great potential and they are entitled to the present market value prevalent in the area at the relevant time. The petitioners rely upon the public auction conducted by the DDA in relation to plot No. 70, Nehru Place, wherein the land was auctioned at a price of Rs.1,91,666/- per sq. mtr. The Hon'ble High Court of Delhi further observed that it was concerned only with the fixation of a fair market price of the land, prima facie. While determining prospective use of the land or its future potential and development by itself, cannot be the only basis for the court to determine the market value of the acquired land. It is for the claimants to prove on record that the land or its surrounding areas have been fully developed at the time of notification. Granting of compensation is a mtter of serious consequence and thus cannot be based upon the element of conjuncture. Reference in this regard can be made to the judgment of the Supreme Court in the case of B.G. Kulkarani Vs Special Land Acqusition Officer JT 1996 (4) SC 220 as well as Trilochan Singh Vs State of Punjab 1995 LACC 283 SC. Normally, the auction by public authorities of fully developed plots cannot be stated to be a fair guiding factor for determining the fair market value of the land sought to be acquired by the Government at a subsequent stage. Of course, location, potential, utility would be the relevant factors which the court upon due proof by the claimant, may take into consideration. Auction of a developed plot by a public authority may not be a proper guide for determination of such compensation. It will be appropriate to refer to the judgment in the case of Santa (Died) & Ors Vs State of Haryana & Anr 2000 (2) PLR 501 while referring to various judgments of the Supreme Court as well as of that Court, it was held as under:-
''It is settled principle of law that the plot which are developed by the Government or its instrumentalities in the larger public interest after incurring huge expenditure cannot form basis for determining the compensation payable to the land being acquired by the Government for achieving that very public purpose. The cost indicated includes various other ingredients and does not indicate the excessive cost factor of the land price. It was for the claimants to bring appropriate evidence on record for bifurcation of such costing before they could derive any benefit from such documents.
This court has the occasion to discuss the relevancy of such public auctions or allotment of plots by the public bodies in different cases. In the case of State of Haryana and another V.Ram Chander and others, RFA No. 37 of 1996 decided on 13.05.1999 while considering somewhat similar question where auctions were held by HUDA of commercial areas, the Court observed as under:-
''Those instances are to my mind not relevant considerations for determining the fair market value of the acquired land at the time of notification. Varied reasons can be given for rejecting these instances. Firstly, these plots are developed plots on which the Government or HUDA has already spent considerable amount. Secondly, these are commercial sites and can never be equated to the value of huge agricultural land like the land acquired in the present case. Thirdly, these auction prices are not true index of a fair market value of the land at the relevant time because of the element of speculation and unfair competition in such auctions. Fourthly, the auctions have an element of uncertainty and they cannot be equated to a sale deed. It will depend on the terms and conditions of the auction because normally very meager amount in payable at the time of auction and balance is to be paid in instalments. Whether balance amount was paid or not, whether final documents of lease-deed or sale deed were executed in favour of the bidder? Ex. P31 and Ex. P32 are based on such terms only and lastly but not the least these are such small pieces of land that they cannot form a reasonable and fair basis for determination of compensation payable to the claimants. Once this evidence is held to be irrelevant, the compensation cannot be granted on the mere asking of the claimants which they stated in their examination in chief and PW3, PW4 and PW9 respectively.
Again in the case of State of Haryana Vs Rajinder Kumar, RFA No. 2351 of 1998 decided on 03.06.1999 the court held as under:-
''Serious expenditure and efforts are put in by the State or authorities like PUDA before the developed, residential or commercial plots are put to public auction. Cost of land is one of the components of the minimum auction price fixed by the authorities. Auction price is not the price indicative only of the cost of land. It includes various other factors and components in its composition. It is a matter of public knowledge that it includes maintenance, construction and maintenance of roads in times to come, element of interest payable on different heads and other ancillary factors. An auction/bid is primarily is a speculative feature.
The Hon'ble High Court of Delhi in the aforesaid WP ( C) 76-79/2004 held that :
''Thus, we have no hesitation in coming to the conclusion that the auction held by the DDA in regard to plot No. 70 in the year 1995 cannot be the sale criteria for determining the compensation payable to the land owners, prima facie, and at this stage of the proceedings. We would not prefer to rely upon this document as the petitioner can hardly be permitted to take undue advantage of public obligations of the Government and its development policies.'' It was further held by the Hon'ble High Court of Delhi that :
''Admittedly the area has been developed by the DDA as a commercial area. However, under the lay out plan, the area was marked only for public utility services and thus it cannot get any commercial value.'' 14 Sh. Joginder Lal Malhotra/ PW1, in his affidavit in evidence, has deposed that the land of the petitioner is situated between Sabzi Mandi Railway Station and Mehta Building and is surrounded by Azad market, old Rohtak Road, Kishan Ganj Railway Station, etc. PW1, in his cross-
examination, has deposed that it is correct that the plot was never used for any residential or commercial purpose prior to the notification but they were thinking to use it for commercial purpose. Sh.Subhash Malhotra/ PW2 has deposed in his affidavit that the land acquired vide award no. 3/1999- 2000, almost entire land was being used for commercial purposes which fact is clear from the award itself as there are number of transport company, business establishments, factories/ manufacturing units which fact is clear from the claim filed by various persons. The land use of the land was commercial on the date of notification and huge multi-stored commercial building has been constructed on the land of the petitioners. PW2 has further deposed that in between Rohtak Road and Roshanara Raod almost entire land is built up and being used for commercial purposes. Lands of Pul Bangash and Ram Bagh award are touching each other having same potentiality and adjoin same amenties and facilities. In this context, whether the land in question may be treated either residential or commercial, a reliance can be placed upon the judgment reported in the case of M.C.Mehta Vs UOI & Ors AIR 2006 SC 1325, it was held by the Hon'ble Supreme Court of India as under :
''For dealing with the question of power of MCD to seal the premises in case of misuser, it is necessary to examine few provisions of the DMC Act. The expression 'building' is defined in Section 2 (3) of the DMC Act as a house, out-house, stable, latrine, urinal, shed, hut, wall (other than a boundary wall) or any other structure, whether of masonry, bricks, wood, mud, metal or other material but does not include any portable shelter.
The expression 'land' as per section 2 (24) includes benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth and rights created by law over any street.
Section 2 (26) defines 'market' as under :
'Sec. 2 (26) - ''market'' includes any place where persons assemble for the sale of, or for the purpose of exposing for sale, meat, fish, fruits, vegetables, animals intended for human food or any other articles of human food whatsoever, with or without the consent of the owner of such place notwithstanding that there may be no common regulation for the concourse of buyers and sellers and whether or not any control is exercised over the business of, or the person frequenting, the market by the owner of the place or by any other person;'' Sec. 2 (34) defines 'Occupier' as under :
Sec.2 (34) ''Occupier'' includes -
(a) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable;
(b) an owner in occupation of, or otherwise using his land or building;
(c ) a rent-free tenant of any land or building;
(d) a licensee in occupation of any land or building; and
(e) any person who is liable to pay to the owner damages for the use and occupation of any land or building;'' U/sec. 2 (59) 'trade premises' means :
''2 (59) - ''trade premises'' means any premises used or intended to be used for carrying on any trade or industry;'' ''Sec. 331 Definition -
(C ) to convert into a dwelling house any building or any part of a building not originally constructed for human habitation or, if originally so constructed, subsequently appropriated for any other purpose;
(h) to convert into a stall, shop, warehouse or godown, stable, factory or garage any building not originally constructed for use as such or which was not so used before the change;
(j) to convert into or use as a dwelling house any building which has been discontinued as or appropriated for any purpose other than, a dwelling house.'' Clause (c), (h) & (j) are very significant. These clauses bring in the concept of user of a building.
It was further held by the Hon'ble Supreme Court that :
''in respect of an area where the notified/ specified land use is residential, sanction for erection of a commercial building cannot be accorded, as is apparent from sub-section (2) of Section 336.
Section 347 contains a specific prohibition for change of the use of any land or building. The said section reads as under :
''Sec. 347 Restrictions on uses of buildings. - No person shall, without the written permission of the Commissioner, or otherwise than in conformity with the conditions, if any, of such permission - (a) use or permit to be used for human habitation any part of a building not originally erected or authorized to be used for that purpose or not used for that purpose before any alteration has been made therein by any work executed in accordance with the provisions of this Act and the bye-laws made thereunder:
(b) change or allow the change of the use of any land or building;
(c) convert or allow the conversion of one kind of tenement into another kind.'' A bare perusal of building bye-laws shows how relevant is the user, commercial or residential, and the large impact of occupation load on various facilities including water, sanitation and drainage.
Provision for household industries in residential areas does not mean converting residential houses in the commercial shops. It only means permitting activities of household industry in a part of a residential property. It does not mean that residential properties can be used for commercial and trading activities and sale and purchase of goods. Master Plan contemplates shops in District Centres, community Centres, Local Shopping Centres etc. and not in residential areas.
In respect of planning, reference can usefully be made to Section 313 of the DMC Act as well. The said section provides for the requirement of layout plan of the land. It, inter alia, provides that before utilizing, selling or otherwise dealing with any land U/sec. 312, the owner thereof shall send to the Commissioner a written application with a layout plan of the land showing various particulars including the purpose for which the building will be used. For breach of Section 313, action can be taken U/sec. 314. It has rightly not been disputed by any counsel that neither layout plan, nor the building plan, can be sanctioned by MCD except in the manner and for the purpose provided in the Master Plan. If in the master plan, the land use is residential, MCD cannot sanction the plan for any purpose other than residential.
Building Bye-Laws for the Union Territory of Delhi, 1983, in particular Bye-Law Nos. 2.17, defining the expressions 'Conversion' and ''To Erect' which reads as under:
''2.17. Conversion - The change of an occupancy to another occupancy or change in building structure or part thereof resulting into change of space or use requiring additional occupancy certificates''.
The introduction of the ad hoc Registration Scheme would not only regularize the illegalities but further encourage more illegalities to take place by sending a wrong message underlying the press release. This ad hoc scheme has been stayed by this Court.
Mr. Ashwini Kumar, learned Senior Advocate appearing for MCD, also contended that since there is a large scale misuse of residential premises for commercial purposes, it is a physical impossibility to remove the misuser. The contention deserves outright rejection.'' 15 It is pertinent to mention here while considering the nature and use of the acquired land, the Hon'ble Supreme Court of India in the aforesaid case of M.C.Mehta Vs UOI (Supra) has held that the provision for household industries in residential areas does not mean converting residential houses in the commercial shops. It only means permitting activities of household industry in a part of a residential property. It does not mean that residential properties can be used for commercial and trading activities and sale and purchase of goods. It was further held by the Hon'ble Supreme Court of India in the aforesaid case that it has rightly not been disputed by any counsel that neither layout plan, nor the building plan, can be sanctioned by MCD except in the manner and for the purpose provided in the Master Plan.
If in the master plan, the land use is residential, MCD cannot sanction the plan for any purpose other than residential. Therefore, misuse of residential premises for commercial purposes has outrightly been rejected by the Hon'ble Supreme Court. Further, adhoc registration schemes have also been stayed by the Hon'ble Supreme Court. The petitioners have neither proved by the documentory evidence nor PW1 has been able to establish that the land in question was being used for commercial purposes. In a similar reference in LAC No.32/1/06 titled M/s H.S.Hyde & Co. Vs UOI & Anr, the AEN, DMRC was examined as PW3 who specifically deposed in his cross- examination that as per the award as well as the master plan, the land use is residential in nature. It is clear from the testimony of PW1 that the claim sought by the petitioners of the land use for commercial purposes is without any basis and therefore, the evidence produced and relied upon by the petitioners does not support the case of the petitioners for commercial rates in view of the judgment of the Hon'ble Supreme Court of India in the case of M.C.Mehta Vs UOI (Supra). The petitioners have also not been able to prove by the documentary evidence that the acquired land was the commercial land allotted by the Govt. as per the master plan. Even otherwise, the commercial and business activities on the acquired land does not change the use of the land from residential to commercial. Therefore, I have no hesitation to hold that the case of the petitioners on the aspect of use of land is squarely covered in the aforesaid case of M.C.Mehta Vs UOI (Supra). Thus, the petitioners herein are not entitled to the commercial rates of the land in question.
16 PW1, during his cross-examination, has deposed that the station of Subzi Mandi is at a distance of about 600 sq. Yards. There is no encroachment on the plot of the petitioners and the land was bounded with boundary wall with two big iron gates. PW1 has further deposed that his plot is on the main road and there is no difference between the road and his plot. PW1 has denied the suggestion that some milk vendors were sitting in front of his plot. The respondents have not proved on record that the milk vendors were sitting in front of the land in question. PW1 has also denied the suggestion that the potentiality of hte land mentioned in the award no.5/DC/N/2001-2002 and 12/DC/N/2001-2002 are in the better position than the plot of this reference, award no.3/1999-2000 since it has been encroached by the milk vendors. PW3 has proved on record the schedule of market rates from the year 1996 to 2000 as fixed by Ministry of Urban Affairs & Employment, Land Division, Nirman Bhawan as Ex.PW3/1. In the Ex.PW3/1, the rates for Roshanara Road, Kamla Nagar, Shakti Nagar, Azad Market, Malka Ganj, etc. zone-IV, North Delhi has been fixed Rs.6,930/- per sq. mtrs. for residential land and Rs.14,490/- per sq. mtr. for commercial land. PW2 is one of the co-owners of the land in question who has also deposed that there is no encroachment on the plot in question. In the award of the present reference Ex.R-1, the notification u/s 4 of the LA Act pertaining to the land situate at Ram Bagh area forming part of Delhi village/ Delhi Patti was issued on 12.06.1997 wherein the LAC assessed the market value of the acquired land @ Rs.1,247/- per sq. mtr. The LAC assessing the fair market value of the acquired land situate at Ram Bagh area Delhi Patti in the present reference also considered the method of using the 'Schedule of Market Rates' issued by the Ministry of Urban Affairs & Employment, Govt. of India, for land transfers in Delhi and as per the schedule, the prices for land transfer for the corresponding period i.e 01.04.1996 till 31.03.1998 comes to Rs.6,300/- per sq. mtr. for residential areas and Rs.12,600/- per sq.mtr. for commercial areas but the LAC considered the indicative price as per the schedule of market rate on a very higher side without giving any cogent reasons in his award and assessed the market value at Rs.1,247/- per sq. mtr on the basis of sale prices. On the one hand, the LAC in the award Ex.R-1 herein is relying upon the sale deeds for fixing the market value without giving any justified or cogent reasons for not considering the indicative rates i.e. schedule of market rates of the Govt. On the other hand, the LACs in the aforesaid other notifications/ awards have relied upon the schedule of market rates of the Govt. while fixing the market value of the acquired land as on 08.08.2000 & 15.10.2001 of the same area which are situated at Pul Bangash - Roshanara Road area forming part of village Delhi Patti and Rohtak Road, Ram Bagh, Delhi. The land in question is also situate at Ram Bagh forming part of Delhi village/ Delhi Patti. In this context, I would place reliance upon the judgment dt. 30.03.2001 in the case reported as Hari Chand Vs UOI 91 (2001) DLT 602 (DB), it was held as under:
"Reference Court not justified in having continued to bank upon earlier award in which scheduled rates of 1966 made basis - because of steep rise in prices of land not only in and around acquired area but throughout national Capital Territory of Delhi and because of successive acquisitions, fresh rates were notified, latest rates announced in 1992 - No reason why 1992 rates would not have been made basis by Reference Court in determining fair market value as on 01.06.1992.''
17 The counsel for the respondents have also relied upon the copy of the sale deed no.2046 executed & registered on 13.03.1995 by Ms. Shamina Khatoon & Ors in favour of Ms.Amna Bi which is Ex.R-2. Ex.R-2 is the sale deed of the land situate at village Pul Bangash & Roshanara Road which was executed on 13.03.1995. Here, I would like to point out that the sale prices of the land or the properties for fixing the fair market value of the acquired land on the date of notification u/s 4 of the LA Act have to be considered if the market rates of the area wherein the acquired land situate have not been fixed by the Govt. but in the present reference, the Govt. has already fixed the market rates of the area where the land in question situate for residential/ commercial purposes on the date of notification u/s 4 of the LA Act i.e. Rs.6,300/- per sq. mtr. for residential purposes. Even otherwise, in the judgment dt. 29.04.1997 reported in the case of Special Deputy Collector & Anr Vs Kurra Sambasiva Rao & Ors (1997) 6 SCC 41, it was held by the Hon'ble Supreme Court of India that marking of certified copies of sale deeds per se not admissible in evidence unless duly proved by witnesses. Therefore, the aforesaid sale deed relied upon by the counsel for the respondents cannot be considered as the basis for fixing the fair market value of the land in question on the date of notification u/s 4 of the LA Act. Further, the area under acquisition has been found to be in a fast developing part of a municipal town, development activity was in progress. Therefore, deduction towards development costs to the market value of the acquired land would not be justified. In this context, I would further place reliance upon the judgment dt. 26.09.1996 passed by the Hon'ble High Court of Delhi in RFA No. 554 of 1992 in the case of Dharamvir & Ors Vs UOI, it was held that acquired land was surrounded by developed area which had already roads and railway line, therefore, there was no justification for deduction towards development cost to the extent of 30% or to the extent of 25%. In the case of Anil Kumar Sharma Vs UOI 86 (2000) DLT 825 (DB), it was held by the Hon'ble High Court of Delhi that acquired land was already developed and possessed of amenities. No reason to hold that fair market value of the land in vicinity as on the date of notification for similar plots would less than Rs.800/- per sq. mtr or less than Rs.345/- sq. yard. No scope for further deductions. Thus, I have no hesitation to hold that the market value of the land in question situate at Ram Bagh area forming part of Delhi village/ Delhi Patti acquired vide the notification dt. 12.06.1997 u/s 4 of the LA Act was at Rs.6,300/- per sq. mtr. The petitioners have not led any evidence and failed to prove on record the claim sought for structure, trees, etc., therefore, the petitioners are not entitled for the same. These issues are answered accordingly.
RELIEF 18 In view of my findings on the above issues, the market value of the land of the petitioners situate at Ram Bagh area forming part of Delhi Village/Delhi Patti acquired vide the notification dt. 12.06.1997 U/sec. 4 of the LA Act is fixed @ Rs.6,300/- per sq. mtr. as per the details mentioned in the statement u/sec.19 of the LA Act. Besides it, the petitioners shall also be entitled to get additional amount u/sec. 23 (1A) of LA Act @ 12% per annum on the market value from the date of notification u/sec. 4 of the LA Act till the date of award or dispossession, whichever is earlier. The petitioners shall also get solatium u/sec. 23 (2) of LA Act @ 30% on the enhanced amount of compensation and interest u/sec. 28 of LA Act @ 9% per annum for the first year from the date of dispossession and @ 15% per annum on the difference between the enhanced compensation awarded by this court and the compensation awarded by the LAC for the subsequent period till the payment. The petitioners are further entitled to interest on solatium and additional amount in terms of judgment of Hon'ble Apex court titled Sunder Vs UOI reported in DLT 2001 (SC) 569. This reference is answered accordingly.
A copy of this award be sent to the concerned LAC to make the payment of the enhanced amount of compensation to the petitioners within three months from today. While making the calculations due regard shall be made to deduct the amount initially arrived at by the LAC to avoid any duplication. There shall be no order as to costs. Decree sheet be prepared accordingly. The file be consigned to Record Room.
Announced in open court ( YASHWANT KUMAR )
on 21.02.2007 ADDL. DISTRICT JUDGE (LAC)
DELHI
LAC No. 71/1/06
21.02.2007
Present- None
Vide separate award dictated and announced in the open court, this reference is answered accordingly.
A copy of this award be sent to the concerned LAC to make the payment of the enhanced amount of compensation to the petitioners within three months from today. While making the calculations due regard shall be made to deduct the amount initially arrived at by the LAC to avoid any duplication. There shall be no order as to costs. Decree sheet be prepared accordingly. The file be consigned to Record Room.
( YASHWANT KUMAR ) ADJ/LAC/DELHI/21.02.2007