Delhi District Court
Sh.Shiv Charan vs . Uoi on 2 February, 2007
-:1:- LAC NO.29/06
Sh.Shiv Charan vs. UOI
IN THE COURT OF A.K.MENDIRATTA, ADDITIONAL
DISTRICT JUDGE : DELHI
LAC No. 29/06
Sh.Shiv Charan
Son of Sh.Bhola
R/o Village Aali, New Delhi .........Petitioner
VERSUS
1.Union of India
Through Land Acquisition Collector,
Delhi.
2.National Thermal Power Corp.
Through its General Manager
Badarpur, New Delhi. .........Respondents.
Village : AALI
Award No. : 9/94-95
Date of notification u/s 4 : 16.10.92
JUDGMENT
1. Petitioner's land as referred in statement u/s 19 of the Land Acquisition Act (herein after to be referred as the said Act) was acquired for construction of Ash pond of Badarpur Thermal Power Station vide Award no. 9/94-95 by the government by following due procedure as prescribed under the said Act. The land was notified under section 4 of the LA Act on16.10.92 which was followed by a declaration under section 6 of the Act dated 23.3.93. After considering the claims filed by the interested persons pursuant Contd.....
-:2:- LAC NO.29/06Sh.Shiv Charan vs. UOI to notices u/s 9 & 10 of the Act, LAC assessed the market value of the land @ Rs.4.65 lacs per acre on the basis of the policy of Government of Delhi dated 03.5.90 whereby minimum price of agricultural land was fixed @ Rs. 4.65 lacs per acre w.e.f. 27.4.90.
LAC observed that the land under acquisition is not developed and public facilities such as roads, parks, schools, dispensaries, etc are not available. He further noted that no Award had been recently passed in village. Reference was further made to awards passed in village Jaitpur which is quite adjacent to village Aali, namely award no. 2/90-91 involving date of notification u/s 4 on 22.6.89, Award no. 3/91-92 involving date of notification u/s 4 on 10.10.90, Award no. 6/91-92 involving date of notification u/s 4 on 30.5.90, Award no. 1/94-95 involving date of notification u/s 4 on 16.10.92 wherein the rate of land was fixed by the LAC on the basis of policy of Government of Delhi dated 03.5.90 @ Rs. 4.65 Lacs per acre. LAC also referred to three sale deeds dated 04.2.92 executed in village Aali and assessed the market value of land @ Rs. 4.65 Lacs per acre or Rs. 96,875/- per bigha.
2. Dis-satisfied by the land rates assessed by the LAC, petitioner preferred a reference petition u/s 18 of the LA Act which was in turn forwarded by the LAC for assessment by the Reference Court.
The case of the petitioner is that he was not present at the Contd.....
-:3:- LAC NO.29/06Sh.Shiv Charan vs. UOI time of announcement of Award nor any notice u/s 12 (2) of the LA Act was issued or served upon the petitioner. It is averred that the land is developed and surrounded by posh colonies and industrial area of Tuglakabad railway station, Sarita Vihar, Badarpur and other colonies. Further the land of village Aali is stated to have more potential value than village Jaitpur as it is situated near to Delhi and main Mathura Road. Compensation was accordingly claimed @ Rs.3000/- per sq. yard.
3. In the W/S, filed on behalf of Union of India it was submitted that the assessment made by the LAC was adequate and just. It was further submitted that petitioner had not preferred a claim in response to notice issued by LAC u/s 9 & 10 of the Act.
Similar stand was adopted by NTPC.
4. On the pleadings of the parties following issues were framed :-
ISSUES:
1. Whether the reference is within limitation ?
2. What was the market value of the acquired land on the date of issuance of notification u/s 4 of the LA Act ?
Contd.....
-:4:- LAC NO.29/06Sh.Shiv Charan vs. UOI
3. To what enhancement in compensation, if any, is the petitioner is entitled ?
4. Relief.
5. Petitioner in support of his case tendered in evidence copy of policy of Government of Delhi dated 03.5.90 and 25.7.97, Awards pertaining to village Jaitpur and copies of judgments pertaining to assessment of land in village Jaitpur, Jasola, Bahapur, Tuglakabad, Palam. The same were exhibited with the consent of the parties as Ex. P1 to P11 and are detailed as under :-
Ex. P1 is copy of policy of Government of Delhi dated 3.5.90 whereby minimum price of agricultural land for purpose of acquisition was fixed @ Rs.4.65 lacs per acre in Delhi w.e.f 27.4.90.
Ex. P2 is copy of policy of Government of Delhi dated 25.7.97 whereby minimum price of agricultural land for purpose of acquisition was fixed @ Rs.10 lacs per acre in Delhi w.e.f 1.4.97.
Ex. P3 is copy of the Award No. 3/91-92 dated 30.7.91 pertaining to village Jaitpur whereby land notified u/s 4 on 10.10.90 was assessed @ Rs.4.65 lacs per acre.
Ex. P4 is copy of the Award No. 6/91-92 dated 2.12.91 pertaining to village Jaitpur.
Ex.P5 is certified copy of the judgment passed in LAC No.31/94 dated 30.10.06 entitled Jagmal. vs. UOI whereby land Contd.....
-:5:- LAC NO.29/06Sh.Shiv Charan vs. UOI notified u/s 4 on 10.10.90 in village Jaitpur was assessed by the Reference Court @ Rs.5,39,400/-.
Ex.P6 is certified copy of the judgment passed in LAC No.133/94 dated 4.11.04 entitled Dayal Singh vs. UOI pertaining to assessment of land in village Jaitpur, notified u/s 4 on 16.10.92 @ Rs.6,51,000/- per acre by the Reference Court.
Ex.P7 is certified copy of the judgment passed in RFA No. 408/86 dated 19.10.01 entitled Dhoom Singh Vs. UOI whereby rate of land notified u/s 4 on 15.6.79 in village Jasola was assessed @ Rs.2,240/- per sq.yard.
Ex. P8 is copy of judgment passed in RFA no. 65/81 reported as 1998 Vol. VI AD (Delhi) 159 entitled Bhola Nath & Ors. Vs. UOI whereby rate of land notified u/s 4 on 30.6.78 in village Bahapur was assessed @ Rs.2,000/- per sq.yard.
Ex. P9 is copy of judgment passed in RFA no. 461/95 reported as 1991 (2001) DLT 602 (DB) entitled Hari Chand Vs. UOI whereby rate of land notified u/s 4 on 1.6.92 in village Tuglakabad was assessed @ Rs.3,000/- per sq.yard.
Ex. P10 is copy of judgment passed in RFA no. 718/90 reported as 57 (1995) DLT 410 (DB) entitled Rameshwar Solanki Vs. UOI whereby rate of land notified u/s 4 on 27.1.84 in village Palam was assessed @ Rs.47,224/- per bigha.
Ex. P11 is copy of judgment reported in AIR 1992 SC 150, in SLP (Civil) No. 7662/85 entitled Gokal Vs. State of Haryana Contd.....
-:6:- LAC NO.29/06Sh.Shiv Charan vs. UOI dated 10.9.91 by the Hon'ble Supreme Court of India.
Petitioner also examined PW-1 Sh.Ashok Kumar, Halka Patwari. He deposed that Mathura Road passes through village Aali. The land of village Jasola and Aali is similar for purpose of agriculture. Village Aali was stated to be located at a distance of 3 km from Apollo hospital. He further admitted that land in village Jasola had been developed for commercial and residential purpose.
During cross examination he deposed that acquired land is situated about 3 km from Mathura Road and has been acquired for purpose of ash pond collection for NTPC and no development had taken place in the area where the land had been acquired. The developed land in village Jasola was stated to be at a considerable distance from acquired land. He further stated that he could not say whether in the year 1996 same development existed on Mathura Road. Distance between Village Ali and Jasola was stated to be about 3 km.
Petitioner also examined Sh.A.K.Ojha A/c Clerk from the office of LAC on the point of limitation. He deposed that payment was received by the petitioner from office of LAC on 17.6.94 and no notice u/s 12(2) of LA Act was received by the petitioner. He further deposed that petitioner moved an application for payment of compensation dated 13.6.94 and the payment was made on 17.6.94.
During cross examination he deposed that the Contd.....
-:7:- LAC NO.29/06Sh.Shiv Charan vs. UOI reference was filed by the petitioner on 2.12.94 and notice u/s 9 and 10 was served upon the petitioners.
6. Respondent UOI in support of their case tendered in evidence Award alongwith policy of Government of Delhi dated 03.5.90 & 25.5.97 which were exhibited as Ex. R1 to R3 with the consent of the parties.
7. I have heard Counsel for the petitioner, Counsel for UOI and perused the entire record. My issue-wise findings are as under:-
8. ISSUE NO. 1 : The award in the present case was announced on 6.6.94. The reference appears to have been filed before the LAC on 2.12.94 and has thereafter been forwarded to the reference court for assessment of the value of the land in accordance with law. The petitioners have claimed that no notice u/s 12(2) of the LA Act was served upon the petitioner and the date of knowledge is claimed from 13.6.94. Even the payment to the petitioner is stated to have been released on 17.6.94 as recorded in statement u/s 19. The reference as such is claimed to be within limitation i.e within 6 months from 13.6.94 ( date of knowledge).
Petitioner has further relied upon 2005 VII AD (SC) 665, AIR 1985 Gujrat 170, AIR 1989 Gujrat 56, AIR 1989 P & H 261, 1988 RLR 224, AIR 1963 SC 1604 in support of the contentions Contd.....
-:8:- LAC NO.29/06Sh.Shiv Charan vs. UOI on point of limitation.
The principle of law has been clearly enunciated in the cases referred by the counsel for the petitioners. The question for consideration is the date which the petitioner can be presumed to have actual or constructive notice of the passing of the award. The above said principles may now be applied in the present case to determine the date of knowledge of the petitioner (actual or constructive) of the passing of the award which may be considered as starting point for calculating the period of limitation.
No evidence has been led by the respondents to prove in case the petitioners were present at the spot at time of announcement of Award or if they had been served with any notice after passing of the award. In the absence of any evidence being led by the respondents to the aforesaid extent the reference cannot be deemed to be barred by limitation. Even the payment appears to have been made to the petitioners only on 17.6.94 as observed in statement u/s 19. As such the reference is within 6 months of date of knowledge i.e 13.6.94 as claimed by the petitioners. In view of above the reference is within limitation. The issue is accordingly decided.
9. ISSUE NO. 2 & 3 : Counsel for the petitioner has urged that the rate of land in the adjoining village Contd.....
-:9:- LAC NO.29/06Sh.Shiv Charan vs. UOI Jasola and Tuglakabad was much more than assessed by the LAC and the same be taken into consideration while assessing the value of land in the present case. It is also submitted that the rate of land even in village Jaitpur which is further far away from village Aali and is not adjoining the main road, has been assessed at higher rates in Award no. 1/94-95 involving the same date of notification u/s 4 i.e. 16.10.92.
Counsel has further vehemently urged that the sale deeds relied upon by the respondents and referred in the Award do not reflect the true market value of the land as the land which is the subject matter of the aforesaid sale deeds had been notified u/s 4 of LA Act on 06.4.64 and the possession of the same has even been taken subsequently on 28.7.04 in Award no. 3/97-98 (Suppl.).
9. On the other hand counsel for UOI has vehemently urged that the bonafides of the three sale deeds filed in other cases and referred in Award executed on 04.2.92 in village Aali cannot be doubted since there was no bar in execution of the sale deeds as the proceedings initiated for acquisition were stayed as per the orders passed by the Hon'ble High Court, which were vacated on 14.12.95 in Civil Writ Petition no. 562/83 & 563/83. It is also urged that the transactions were between the private parties and there is no occasion that the same could have been fabricated. It is urged that the rate of land has been correctly assessed by the LAC.
Contd.....
- : 10 : - LAC NO.29/06Sh.Shiv Charan vs. UOI
10. It is settled law that the best piece of evidence to assess the market value of acquired land in the village are the instances of sale of land in the same village and the other material depicting the market value in the same village may also be helpful. In absence of any such material, reliance can be placed on instances of prices of land in adjoining villages subject to the condition that the potentiality, location and nature of land in the adjoining villages is comparable.
11. In the case of Shakuntalabai (Smt) & Ors. Vs. State of Maharashtra, reported as (1996) 2 SCC 152, their Lordships have categorically observed that when on record there is evidence of the value of the acquired land itself, then it is unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent land. The relevant portion of the said judgment reads as under:-
'It is seen that if there is evidence or admission on behalf of the claimants as to the market value commanded by the acquired land itself, the need to travel beyond the boundary of the acquired land is obviated. The need to take into consideration the value of the lands adjacent to the acquired land or near about the area which possessed same potentiality to work out the prices fetched therein for determination of market value of the acquired land would arise only when there is no evidence of the value of the Contd.....- : 11 : - LAC NO.29/06
Sh.Shiv Charan vs. UOI acquired land. In a case where evidence of the value of the acquired land itself is available on record, it is unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent lands.'' Since the instances of sale in land in village Aali relied by respondents and referred by LAC in the Award are available the sale prices of the land in village Jasola, Tuglakabad and Bahapur is not required to be looked into. Further it has not been proved on record incase the potentiality and quality of land in village Jasola and Tuglakabad is the same as that of village Aali and as such the sale deeds pertaining to aforesaid villages cannot be relied upon to assess the market value in village Aali. It has further come on record in other cases pertaining to same reference that village Madanpur Khadar is located between village Jasola and Ali and distance between 2 villages is about 3 km. Further Mathura Road is stated to be about 6 km from the acquired land. Even village Tuglakabad and Bahapur is more beneficially located than village Aali. For the foregoing reasons, the rate of land in village Jasola, Bahapur and Tuglakabad can not be compared to assess the rate of land in village Aali and Ex.P 7, 8, 9 and 10 are not relevant.
It may also be observed that the acquired land on the date of notification u/s 4 was being utilized for agricultural purposes Contd.....- : 12 : - LAC NO.29/06
Sh.Shiv Charan vs. UOI and no electrical and municipal connection for water was available.
Even the purpose of acquisition in adjacent land, falling in village Jaitpur was for construction of ash pond and as such there could not have been any substantial appreciation of prices, as no building activities could have taken place. In view of above, the land in villageAali cannot be compared with village Jasola and Tuglakabad.
12. The 3 sale deeds referred by LAC executed on 04.2.92 in village Aali were referred and also relied by respondents in other cases whereby 3 bigha 10 biswas of land was sold for consideration of Rs.3,40,000/-, 2 bigha 15 biswas for consideration of Rs. 2,66,500/- and 2 bigas 3 biswas for consideration of Rs.2,09,000/-. The said sale deeds have been dealt by me in other cases and observations made in LAC No. 147/94 entitled Hari Chand Vs. UOI decided on 22.12.06 may be beneficiary reproduced as under:-
"The next question for consideration is whether the sale deeds Ex. R1 to R3 relied upon by the respondents which have been referred in the Award can be considered as reliable and indicate the prevalent market value of the land.
The respondents have pointed out that the land involved in the aforesaid 3 sale deeds was already notified u/s 4 on 06.4.64 and even the Award with respect to the same has been passed vide Award no. 3/97-98 (Suppl.) and the possession has been taken in 2004. It is vehemently contended that since the land already stood notified u/s 4 the title of the same could not have been validly passed. It is submitted that the same were undervalued and do not depict bonafide transactions indicating the prevalent market value.
On the other hand counsel for UOI has urged that the aforesaid sale deeds had been executed for due consideration and since the proceedings for award had been stayed by the Hon'ble High Court which were subsequently vacated in 1995 there was no bar for the parties to enter into the sale transactions, which also constituted Contd.....- : 13 : - LAC NO.29/06
Sh.Shiv Charan vs. UOI of a built up area.
In my considered view the fact that the land stood notified u/s 4 restrains the parties from entering into any sale transaction. The consideration in such circumstances wherein the land has been notified u/s 4 of LA Act is bound to be lower than the transactions involving the land free from any such limitations. I am therefore, of the view that Ex. R1 to R3 executed about 8 months prior to notification u/s 4 may not reflect the correct value of land."
13. It may be noted that no appreciation in market value of land has been granted by LAC for a period of about 29 months and 19 days (from 27.4.90 till 16.10.92 {(i.e. date of policy of Government of Delhi till date of notification u/s 4)}.
The trend of fixing prices in Delhi has been duly noticed in 2002 (VI) AD (DELHI) 315 entitled Delhi Simla Catholic Archdiocese Vs. Union of India and another, in para 12, by Hon'ble Delhi High Court as under :-
Judicial notice can be taken of the fact that there has been rise in market prices of the lands in and around Delhi ever-since the land came to be acquired by successive notifications issued for development of Delhi. In fact prices started rising immediately after partition of the country because of the influx of refugees, who wanted to settled in India. The first acquisition in large scale took place when notification itself for Planned Development of Delhi had the effect of rise in market values of the land. Delhi thereafter had been expanding resultantly putting more and more pressure on lands, which still remained un-acquired.
Thereafter there have been series of notifications issued. Prices increased by leaps and bounds. In the absence of any Contd.....- : 14 : - LAC NO.29/06
Sh.Shiv Charan vs. UOI other material as regards sale instances of similar lands, this Court adopted various principles to arrive at fair market value for a subsequent period when for earlier period market value is already determined finally either by this Court or by the Supreme Court. Earlier principle followed was to allow an increase at the rate of Rs.1,000/- per years. Discarding the said principle, appreciation was allowed in subsequent judgments on percentage basis ranging from 6% to 12% p.a. Choice at which rate increase is to be allowed depends upon number of circumstances including the locality where the land is acquired, the period of acquisition etc. Considering the locality and its importance, we are of the view that an increase at the 12% per year over the base rate of Rs.19,000/- per bigha as on 13.11.1959, fair market value can be worked out for the lands, which were acquired through the two notifications issued on 4.4.1964. Allowing such an increase in the absence of any other material, is an established method, which has also been followed even by Supreme Court in Gokal Vs. State of Haryana AIR 1992 S.C. 150 wherein increase by 50% was allowed for a period of three years.
Allowing an increase of 12% p.a. From the market value of Okhla land as on 13.11.1959, we are of the view that fair market value as on the date of the two notifications i.e. 4.4.1994 and 6.4.1994 for the land situate in Okhla will be Rs.29,025/- per bigha.
Reference in this regard may also be made to Rameshwar Solanki & Anr. vs. UOI & Anr. 57, (1195) DLT 410, Bedi Ram Vs. UOI &Anr. 93 (2001) DLT 150 (DB).
Contd.....
- : 15 : - LAC NO.29/06Sh.Shiv Charan vs. UOI
14. The rate of land also appears to have been fixed by the Government even for the subsequent years after granting an appreciation @ of 10 to 12% p.a, as per policies dated 03.5.90 (w.e.f. 274.90 @ Rs.4.65 lacs per acre), 25.7.97 (w.e.f. 01.4.97 @ Rs.10 lacs per acre), 24.9.98 (w.e.f. 01.4.98 @ Rs.11.20 lacs per acre), 10.9.01 (w.e.f. 01.4.99 to 31.3.01 @ Rs. 12.16 lacs and 13.82 lacs per acre), 09.8.01 (w.e.f. 01.4.01 @ Rs.15,70,000/- per acre), 30.8.05 (w.e.f. 30.8.05 @ Rs.17,58,400/- per acre) keeping in view the trend of rising prices. The appreciation of prices has been wrongly denied by the LAC from 27.4.90 to 16.10.92 i.e date of notification u/s 4 of LA Act, since there is no reliable evidence on record to show that the prices examined stagnant contrary to the rates fixed by the government as per policies for later years adopting an increase @ 10%
-12%, as referred to above. I am therefore of the view that the market value of land situated in village Ali be assessed after giving appreciation @ 12% p.a for about 29 months by approximation ( in place of 29 months and 19 days) to arrive at just and fair market value of acquired land. Accordingly, by taking base value @ Rs.4.65 lacs p.a. on 27.4.90 and by giving appreciation of 12% per annum for a period of 29 months, the market value of acquired land would be Rs.5,99,850/- per acre.
At this stage, it may also be appropriate to refer to another contention urged on behalf of petitioner that appreciation be granted from 2.6.89 instead of 27.4.90,considering that the Contd.....
- : 16 : - LAC NO.29/06Sh.Shiv Charan vs. UOI assessment of land was made in village Jaitpur @ Rs.4.65 Lacs per acre in award no. 2/90-91 involving date of notification u/s 4 on 2.6.89 and on the aforesaid basis assessment was further made in Award no. 1/94-95 by granting appreciation from 02.6.89 till 16.10.92 (i.e. date of notification u/s 4 in aforesaid case) @ Rs.6,51,000/- per acre.
I may observe that in Dayal Singh Vs. UOI, LAC no. 14/01, decided by this court on 28.2.05 the rate of land in village Jaitpur acquired vide Award No. 2/90-91 involving date of notification u/s 4 on 02.06.89 has been assessed @ Rs. 4.65 lacs per acre. The land in aforesaid village was also acquired for purpose of ash pond for BTPS. The rate assessed by this court has been upheld in appeal by the Hon'ble High Court. However, it may be noted that in the aforesaid case the government had agreed to the demand of the petitioners / villagers to grant the value of land as per the policy of Government of Delhi effective from 27.4.90 for the land notified u/s 4 on 02.6.89. In my considered view the basis of assessment w.e.f. 02.6.89 cannot be adopted for other villages as the concession for extending the rates fixed as per policy dated 3.5.90 for assessment of land in village Jaitpur was extended by the Government only as an exception. The same cannot be extended to base the value uniformly in all other villages from 2.6.89. Further it may also be observed that no evidence has come on record to show that the rate of land in Contd.....
- : 17 : - LAC NO.29/06Sh.Shiv Charan vs. UOI village Aali was about 4.65 Lacs per acre on 2.6.89. The counsel has also urged that enhancement be granted @ 12% compounded or more in view of the judgment passed by Hon'ble High Court in Bedi Ram's case 93 (2001) DLT 150 and Ex. P11. However, I am of the considered view, that unless the specific evidence regarding increase at compounded rates comes on record it would not be appropriate to grant the enhancement at 12% compounded rate of interest. The compounded rate has even not been adopted by this Court for assessment of land in village Jaitpur as no evidence was brought on record indicating increase of prices at compounded rate.
I, therefore, assess the fair value of land as on 16.10.92 after giving an appreciation for a period of 29 months as already discussed above @ Rs.5,99,850/- per acre. The issue is accordingly decided.
I have already assessed the market value of the land on the aforesaid rates in LAC no. 147/94 entitled Hari Chand Vs. UOI decided on 22.12.06 and find no grounds to differ from the same.
15. RELIEF: In view of findings on issue no.
1, I am of the view that petitioners are entitled to compensation @ Rs.5,99,850/- per acre. Besides this petitioners are also entitled to 30% solatium on the market value of land fixed in this case. Petitioner shall also be entitled to interest on the enhanced amount/ compensation awarded by this court under section 28 @ 9% per Contd.....
- : 18 : - LAC NO.29/06Sh.Shiv Charan vs. UOI annum from the date of award or dispossession whichever is earlier till the expiry of one year and thereafter @ 15% per annum till payment. Petitioner shall further be entitled to additional amount of 12% p.a. on the market value fixed in this case under section 23(1A) of the said Act from the date of notification under section 4 of the said Act till the date of dispossession or award whichever is earlier. Petitioner is further entitled to interest on solatium and additional amount in terms of judgment of Hon'ble Apex Court entitled Sunder vs UOI reported in DLT 2001 (SC) 569.
While making the calculations due regard shall be made to deduct the amount initially arrived at by the LAC to avoid any duplication. No orders as to costs.
16. A copy of this judgment be sent to the Land Acquisition Collector concerned for information . The petition stands disposed off accordingly. File be consigned to record room. Announced in the open court (A.K.MENDIRATTA) Dated : 2.2.07 Additional District Judge, Delhi.
Contd.....
- : 19 : - LAC NO.29/06Sh.Shiv Charan vs. UOI 2.2.07 Present : Counsel for petitioner Counsel for respondent Arguments further heard. Vide separate judgment the reference is disposed off. File be consigned to record room.
(A.K.MENDIRATTA) Additional District Judge, Delhi.
Contd.....