Delhi District Court
Shankar vs . Uoi on 9 September, 2014
Shankar vs. UOI
In the Court of Additional District Judge02, South District,
Room No. 602, Sixth Floor, Saket Courts Complex, New Delhi
In the matter of :
LAC No. 24/2011
[Unique ID No. 02403C0004561993]
Shri Shankar, S/o Shri Chaitan (deceased) through his sole LR
Shri Saroop Chand @ Saroopa, (deceased)
through his LRs (i), (ii) & (iii), namely
(i) Shri Yad Ram, S/o Late Shri Saroop Chand @ Saroopa
(Deceased through his LRs)
(a) Smt. Kiran, Wd/o Late Shri Yad Ram
(b) Shri Sanjay, S/o Late Shri Yad Ram
(c) Shri Rajeev, S/o Late Shri Yad Ram
(d) Shri Bhagat Ram, S/o Late Shri Yad Ram
(e) Smt. Sarla, D/o Late Shri Yad Ram
(ii) Shri Gopal Singh, S/o Late Shri Saroop Chand @ Saroopa
(Deceased through his LRs)
(a) Shri Rajinder, S/o Late Shri Gopal
(b) Shri Pawan, S/o Late Shri Gopal
(iii)Shri Naipal Singh, S/o Late Shri Saroop Chand @ Sarupa
All R/o House No. 131 & 134, Village Saria Julena,
P.O. Jamia Nagar, New Delhi110025.
...... Petitioners
Versus
1. Union of India (Through the Secretary),
Ministry of Rehabilitation, Jaisalmer House, New Delhi.
2. Land Acquisition Collector / ADM,
Defence Colony (South), M.B. Road, Saket, New Delhi30.
LAC No. 24/2011 Page 1 of 26
Shankar vs. UOI
3. Shri Ram Narayan, S/o Shri Lal Kanji Mal
4. Shri Parshotam Dass, S/o Shri Lak Kanji Mal
5. Shri Bal Kishan Dass, S/o Shri Lal Kanji Mal
6. Shri Laxman Singh, S/o Shri Lal Kanji Mal
All C/o M/s. Shri Lal Kanji Mal & Sons,
Scindia House, Connaught Place, New Delhi01.
7. Shri Kacheru, S/o Shri Phudan,
R/o Village Khijrabad, New Delhi25.
8. Shri Sohan Lal, S/o Shri Mohan Lal,
R/o 16 Golf Link, Mathura Road, New Delhi03.
9. Shri Laxmi Narayan, S/o Shri Lekh Raj,
R/o 1665, Kucha Dakhni Rai, Darya Ganj, New Delhi02.
10. Shri Lal Singh, S/o Shri Mukhtiar Singh,
C/o Shri Laxmi Narayan,
1665, Kucha Dakhni Rai, Darya Ganj, New Delhi02.
11. Firm, Lal Mal Sangam Lal (Through its Manager Seth Tulsi Dass)
Katra Pyara Lal, Chandni Chowk, Delhi06.
12. Shri Daulat Ram, S/o Shri Bhagwan Dass,
C/o M/s. Bhagwan Dass & Sons Jewellers, Dariba Kalan, Delhi06.
13. Shri Ram Chander, S/o Shri Bansi Dhar,
R/o Village Mehrauli, New Delhi30.
14. Shri Raghubir Singh, S/o Rai Bhadur Sultan Singh,
R/o Chhatta Rai Bhadur Sultan Singh, Kashmere Gate, Delhi06.
15. Shri Chiranji, S/o Shri Jawahar Lal,
R/o 1660, Kucha Dakhni Rai, Darya Ganj, New Delhi02.
16. Delhi Development Authority (through its Vice Chairman),
Land Acquisition Branch, Vikas Sadan, Near INA Market, New Delhi23.
...... Respondents
LAC No. 24/2011 Page 2 of 26
Shankar vs. UOI Reference Received from LAC on : 26.03.1962 (LAC No. 135/1962) Date of Institution : 08.01.2011 (LAC No. 24/2011) { 26.03.1962 (LAC No. 135/1962)} Decision Reserved on : 12.08.2014 Date of Decision : 09.09.2014 AWARD (by the Court u/s 26 of the Land Acquisition Act, 1894) 1.1. (Introduction) In order to decide the petitioner's reference petition u/s 18 of the Land Acquisition Act 1894 (in brief the Act, 1894) read with statement u/s 19 of the Act sent by the Land Acquisition Collector, Delhi, the relevant dates, features and facts are given below:
(i) Date of notification U/s 4 of the Act 13.11.1959
(ii) Date of notification U/s 6 of the Act 26/27.07.1961
(iii) for Project Planned Development of Delhi (iva) Date of possession taken 07.02.1962 (ivb) Location/Name of Village Village Joga Bai (va)Award Number U/s 11 of Act by LAC 1238 & date of award 30.12.1961 (vb) Area under acquisition 210 Bigha (via) Date of reference petition to LAC 26.03.1962 (vib) Petition referred to Court on 26.03.1962 1.2 Pursuant to preliminary notification dated 13.11.1959 under section 4 of the Land Acquisition Act, 1894 (in brief the Act, 1894), LAC No. 24/2011 Page 3 of 26 Shankar vs. UOI followed by declaration vide notification dated 26/27.07.1961 under section 6 of the Act, 1894, the Delhi Administration acquired land measuring 210 bigha in Village Jogabai, Tehsil and District Delhi for Planned Development of Delhi. All concerned were heard, inclusive of the interested persons applied before Land Acquisition Collector and considering the location of land, it was put into Block A, Block D visavis the other claims of trees, wells and other structure were also considered, finally it result into Award No. 1238 (now Ex. R2) of Village Jogabai by Land Acquisition Collector, Delhi, followed by a supplementary Award No. 1238 (also Ex. R2), while excluding certain land measuring 4 bigha 4 biswa, which was subject matter of another Award No. 585. The Land Acquisition Collector relied upon Award No. 1212 of Village Khizarabad and considered rate of Rs. 2,500/ per bigha in respect of land falling under Block B and Rs. 4,000/ per bigha in respect of land falling in Block A duly mentioned in paragraph 4 of the Award. Then, the petitioner Shankar preferred a reference petition under section 18 of the Act, 1894 against respondents no. 1 and 2 before Land Acquisition Collector, Delhi. The said petition along with statement under section 19 of the Act, 1984 has been sent to the Court by the Land Acquisition Collector to decide the reference by giving details of acquired area and amount of compensation LAC No. 24/2011 Page 4 of 26 Shankar vs. UOI that Shankar is owner of half (1/2) share of land comprising Khasra No. 77 (26), 78/1/3 (27), 130 (58), 131 (017), 75/2 (013) and also having half (1/2) share as a non occupancy tenant in the land comprising Khasra No. 127 (519), 133 (66) and 88/1 (23) (hereinafter referred as the acquired land). The acquired land was treated under BlockB for the purposes of compensation.
Petitioner's Case 2.1 Petitioner Shankar is feeling aggrieved by the said Award, filed a reference petition under section 18 of the Act, 1894 before Land Acquisition Collector, Delhi. It was sent to the Court in 26.03.1962. The petitioner had sought enhanced compensation, being owner of the land acquired; the petitioner's petition was stayed to enable him to furnish detail / particulars of owners of land. The file was consigned to record room by order dated 10.10.1962 by the Court. Again file was called on application. The notices were published for other respondents no. 3 to 15 in the Statesman dated 12.08.2008 and for want of their appearance, they were proceeded exparte on 27.04.2009. The petitioner expired and his legal representatives were brought on record, as reflected in array of parties. LAC No. 24/2011 Page 5 of 26 Shankar vs. UOI 2.2 The petitioner assails the impugned Award of LAC that the market value of the land has not been correctly assessed and awarded, since the petitioner's land abuts on the main road leading to Okhla, it has great potential value, the fertility of land has also not been considered, particularly flowers and vegetables are growing on it, the annual income of petitioner is about Rs. 2,500/ per bigha. The LAC ought to have held that land could be used for commercial and building purposes, since colonies have sprung up in the neighbouring area, the applicant ought to have been awarded compensation @ Rs. 30,000/ per bigha.
However, the Collector erred in considering / accepting the other Award No. 1212, as basis for compensation visavis ignoring the sale transactions produced by the petitioner and other villagers, besides ignoring the prices of land in Delhi and its suburbs are repeatedly on an increase, therefore, the said Award No. 1212 could not have been made basis for the present Award under challenge. The compensation has been awarded at a ridiculously low side. The LAC should have also given due consideration regarding damages sustained by the petitioner are arisen of severance of their land and future possibility of land being applied to profitable and beneficial purposes. The other surrounding lands should have also been considered, for which the petitioner had brought evidence LAC No. 24/2011 Page 6 of 26 Shankar vs. UOI on record. The Block A and Block B of lands, devised by Ld. LAC are in fact form a single patch and are of same value but it has been considered otherwise erroneously by the Collector. The amount awarded is based on pure imagination and conjectures. Therefore, the petitioner is entitled for enhanced compensation. The petitioner seeks enhanced compensation in respect of land acquired.
UOI / Respondent No. 1's Case 3.1 The Union of India / respondent no. 1 by way of compact reply, opposed the petition stating that petitioner is owner of half share (½) of land comprising Khasra No. 77 (26), 78 (27), 130 (58), 131 (017) and 75 (013). The respondent no. 1 denies all averments of petitioner, duly reflected in paragraph 2.2, above. The respondent no. 1 also explains that the Collector had not only considered all aspects but also taken into account and consideration all relevant facts placed before him. He had also justified in dividing the land in two Blocks for ascertaining the rate of compensation and the compensation has been awarded by taking into account all factors, inclusive of valuation assessed in Award No. 1212. The valuation is based on material and ground realities, it is not based on conjectures or imaginations, as alleged. The land has been valued after LAC No. 24/2011 Page 7 of 26 Shankar vs. UOI considering all relevant data.
However, the petitioner filed the replication, while denying the objections taken in the reply by further elucidating that detail petition carries the correct averments and the same has been reaffirmed stating that Ld. LAC ought not to have based his decision on pure conjectures and imaginations, he should have taken into consideration the data, material and record provided by the petitioner, which have not been considered despite relevant to the issues and for determining correct market value of land under acquisition, the petition is reaffirmed correct. DDA / Respondent Case 3.2 The respondent / Delhi Development Authority also opposed the reference petition that the findings given by Collector in his Award is based on market value of the land on the basis of sale deeds of adjoining land of the area and other record made available. In addition, the area of land and other appurtenance / amenities / facilities were also taken into consideration while assessing the compensation. The land in question, the area and extent of share of petitioner specified by LAC being not disputed, is not surrounded by developed or undeveloped land at the time of publication of notification under section 4 of the Act, 1984 nor there was LAC No. 24/2011 Page 8 of 26 Shankar vs. UOI any structure, trees, well or tubewell on the land in question at the time of publication of such notification. The LAC awarded the amount is based on cogent and reliable evidence, the amount awarded is perfect, just and proper and there is no scope for any enhancement. The compensation has been assessed legally and correctly by LAC, the same is adequate and just.
The reference petition pertains to land bearing Khasra No. 77 (26), 78/1/3 (27), 130 (58), 131 (017), 75/2 (013), 127 (519), 133 (66) and 88/1 (23), which has been acquired vide Award No. 1238. The physical possession has been taken over DDA on 7.2.1962 through notification under section 22(i) F10(7)80L&B and F8(49) 63L&H(ii) and the land was transferred to New Delhi Friends Colony, C.H.II S. dated 13.02.1963 as per land record. The petitioner is not entitled, as claimed, to compensation for loss of earning or severance charges nor for any enhanced compensation and the reference petition is liable to be dismissed.
However, the petitioner filed the replication of the reply of DDA, while reiterating the feature of petition as correct and denying the contentions of reply that the criteria adopted by the LAC in assessing the market value is arbitrarily, unjust, wrong and LAC has grossly undervalued LAC No. 24/2011 Page 9 of 26 Shankar vs. UOI the land in question. The petition is correct, the petitioner is owner as well as occupancy / nonoccupancy tenant as per revenue record. 3.3 The respondents no. 3 to 15 were served by way of publication in "the Statesman" dated 12.08.2008, however, for want of their appearance, they were proceeded exparte, there is no reply or petition by them.
Issues 4.1 On 11.05.2010, Ld. Predecessor framed the following issues for determination :
1. Whether the petitioner has any right, title or interest in the acquired disputed land ? If so, to what extent and share ?
2. What was the market value of the acquired land as on the date of notification under section 4 of the LA Act ?
3. To which petitioner is entitled to any enhancement of compensation ? If so how much ?
4. Relief.
Evidence 4.2 In order to establish the issues, petitioner's LR No. (iii) Shri Naipal Singh stepped into the witness box as an exclusive witness and he LAC No. 24/2011 Page 10 of 26 Shankar vs. UOI has relied upon the documentary record of Jamabandi of the year 194748 (now Ex. PW1/1), Jamabandi of the year 196162 (now Ex. PW1/2), record of Khasra Girdawari of 1960 to 1962 (now Ex. PW1/3 and Ex. PW1/4) {for proving that land revenue record is in favour of petitioner from the period 19471948}; the certified record of judgment dated 04.07.1979 in LAC No. 136/1977 (UOI vs. Sohan Lal) by the Court of Ld. Additional District Judge, Delhi and orders dated 02.01.1980 (now Ex. PW1/5 to Ex. PW1/7) {to prove that in reference petition under section 31(2) of the Act, 1894 that the amount was apportioned amongst the interested persons after considering Jamabandi and other record}; PW1 also tendered judgment in appeal, reported as 45 (1991) DLT 76 DB under the title Delhi Simla Catholic Archdiocese vs. UOI (now Ex. PW1/8) {that rate of compe nsation for land acquired of Village Bahapur was considered in respect of land acquired in Village Jogabai visavis other determinants, for assessing the market value of acquired land, then quantum of compensation was fixed} and judgment dated 04.01.1983 in LAC No. 151/1980 under the title Sarup Chand vs. UOI (now Ex. PW1/9) {to prove that the case of Delhi Simla Catholic Archdiocese (Supra) was followed in this judgment (Ex. PW1/9) while determining amount of compensation} in order to prove the issues. Then petitioner's evidence was closed. LAC No. 24/2011 Page 11 of 26 Shankar vs. UOI 4.3 The respondent no. 1 has tendered Award and supplementary Award (now Ex. R1 and Ex. R2) on 02.11.2010 and then evidence was closed by the respondents / UOI and DDA. As apparent, the other respondents remained absent / exparte, no evidence has been led on their part.
Final Hearing
5. At the juncture of final hearing, Shri S.S. Panwar, Counsel for petitioner, Shri S.K Puri, Counsel for UOI / respondent no. 1 and Shri P.M. Bhatt, Counsel for DDA / respondent, advanced their respective submission. It does not require to reproduce them, since the contentions will be referred as appropriate stage.
Findings 6.1 First of all, Shri S.S. Panwar, Ld. Counsel for petitioner requests that not only compensation is to be enhanced but also appropriate directions is to be given for apportionment of the compensation. It is submitted that initially, there were two respondents to LAC No. 24/2011 Page 12 of 26 Shankar vs. UOI the reference petition but lateron other respondents (viz. Respondents no. 3 to 15) were impleaded to the array of respondents by application of petitioner,notices issued to them were not served, hence the notices were published in the Statesman, however, they remained absent. The petitioner has also led evidence with regard to apportionment of compensation. Therefore, this Court has to determine both issues of enhancement of compensation as well as apportionment of compensation amongst all interested persons. Ld. Counsel relies upon Sharda Devi vs. State of Bihar (2003) 3 SCC 128, wherein fine distinction has been carried with regard to reference under section 18 of the Act, 1894 and under section 31 of the Act, 1894 that both are independent in nature, either from the point of discretion of Land Acquisition Collector, in the former case, he has no option but to refer the reference petition to the reference Court vis avis there is a prescribed limit for preferring reference petition by the petitioner before the LAC, visavis the scope of Section 31 with regard to apportionment of awarded amount amongst the interested persons but scope of Section 18 is with regard to determination of compensation, measurement, claimants of compensation. Further reliance is placed on Inder Parshad vs. UOI (1994) 5 SCC 239, with regard to apportionment of compensation between the lessee and the owner qua Nazul land owned LAC No. 24/2011 Page 13 of 26 Shankar vs. UOI by Government. It was held , by modifying the order of Civil Court, while fixing the proportion of 75%:25% between the lessee and the Government. It is submitted that on the same analogy, the amount is to be apportioned.
6.2 Whereas Shri S.K. Puri, Counsel for UOI and Shri P.M. Bhatt, Counsel for DDA, opposed this request of petitioner that it is a reference petition under section 18 of the Act, having different scope from reference under section 30/31 of the Act. In case respondents no. 3 to 15 have been impleaded, it does not mean the petition is to be treated as a reference under section 30/31 of the Act along with petition under section 18 of the Act.
6.3 The contentions are assessed. First of all, it is to be decided whether it is a reference under section 18 or 31 of the Act, 1894, The answer lies in the record itself. The petitioner filed petition U/s 18 of the Act, the statement under section 19 of the Act forwarded, by Land Acquisition Act, with the reference petition details about land acquired, wherein the petitioner is shown as owner some part of land and in another part land he is shown nonoccupancy tenant. When the petitioner brought LAC No. 24/2011 Page 14 of 26 Shankar vs. UOI and filed an application qua respondents no. 3 to 15, the Land Acquisition Collector was directed repeatedly from order dated 12.10.2001 till 30.07.2004 by repeated adjournment to furnish names of owners of land (of nonoccupancy tenants). However, it was not furnished. In Ram Prakash Aggarwal vs. Gopi Krishan through LRs 2013 SCCR 537, it was held to the extent that a person feeling aggrieved may make an application before Land Acquisition Collector for reference under section 18 or 30 of the Act, but he cannot make an application for impleadment or apportionment before the Reference Court. The Land Acquisition Collector has not deposited any amount in Court for apportionment under section 30/31 of the Act to be apportionment amongst the interested persons. Therefore, it is a reference petition under section 18 of the Act. However, since the petitioner has been shown nonoccupancy tenant having half share in some part of land, for that purposes, the interest and share is to be determined and reference is to be answered. With this findings, now the formal issues are taken.
Issue No. 1 Whether the petitioner has any right, title or interest in the acquired disputed land ? If so, to what extent and share ? 7.1 The issue no.1 is taken firstly, as appears the onus to prove LAC No. 24/2011 Page 15 of 26 Shankar vs. UOI this issue lies on the plaintiff. Accordingly to petitioner, the revenue record is in the name of the petitioner and now he being represented by his Legal Representatives, there is no evidence by the opposite side to disprove his or their claim. The petitioner has rights, title and interest in the land acquired. He has also share in compensation to be apportioned as per his entitlement.
7.2 Whereas, it is opposed by the respondent Union of India through its Counsel Shri S.K. Puri and by Delhi Development of Authority through its counsel Shri P.M. Bhatt, that it is not a case apportionment but u/s 18 of the Act, the petitioner could not prove issue no. 1 in his favour. 7.3 The submissions of the both the sides are analyzed. It has already been held in paragraph 6 above, that it is reference petition U/s18 of the Act, therefore, from that point of view issue no.1 is to be seen. In the petition U/s 18 of the Act, the petition claims compensation in respect of land acquired, without citing measurement/area and khasra numbers of land acquired, but in replication, the petitioner claimed his status of owner as well as non occupancy tenant in certain land. Statement U/s 19 of the Act (Ex R1) was tendered by Union of India in its evidence, prior to it, this LAC No. 24/2011 Page 16 of 26 Shankar vs. UOI statement was also tendered to petitioner, it was admitted on 9.10.2001 by counsel of petitioner (who is also present counsel of petitioner). Hence, this statement U/s 19 of the Act, is a proved and admitted document. The Jamabandis also narrates name of petitioner. Thus documents narrate status of petitioner as owner as well as nonoccupancy tenant of acquired land, viz. Shankar is owner of half (1/2) share of land comprising Khasra No. 77 (26), 78/1/3 (27), 130 (58), 131 (017), 75/2 (013) and having half (½) share as a non occupancy tenant in the land comprising Khasra No. 127 (519), 133 (66) and 88/1 (23). Therefore, petitioner has title, interest and share a in the land to the extend aforementioned measurement vis a vis rights of nonoccupancy tenant in said land. The issue no.1 is decided in favour of the petitioner and against respondents. Issues No. 2 & 3 What was the market value of the acquired land as on the date of notification under section 4 of the LA Act ?
To which petitioner is entitled to any enhancement of compensation ? If so how much ?
8.1 Now both the Issues No. 2 and 3 taken together, since it involves common discussion. Although onus to prove issues has not been mentioned, but the nature of issue no. 2 suggests that onus lies on the LAC No. 24/2011 Page 17 of 26 Shankar vs. UOI parties and onus to prove issue no. 3 lies on the petitioner.
According to Union of India and the Delhi Development Authority, the detailed Award (Ex. R2) is exhaustive, which was passed after considering all aspects like potential value of the land, the surroundings, nature of land and its use, demographic position, even it was divided into BlockA and BlockB, then award was passed. There is no material produced by the petitioner to infer any thing contrary to the conclusion drawn by Land Acquisition Collector in respect of market value and compensation awarded. The possession of land was taken on 7.2.1962. Further, the petitioner had not lodged any specific claim/ amount before Land Acquisition Collector pursuant to receipt of notice u/s 9 of the Act and award is of 30.12.1961, therefore, unamended provisions of section 25 of the Act 1894 will apply, consequently for want of any specific claim/amount by the petitioner, the amount awarded by Collector would be amount of compensation and it cannot be exceeded by the court. Ld Counsel relied upon precedent 'Land Acquisition Officer cum DSWO A P Appellant Vs M/s B V Reddy and sons AIR 2002 SC 1045', that provisions of unamended section 25 of Act, 1894 will apply to present case as amended provisions of section 25 of the Act will be effective prospectively to all acquisitions which are consequent to 24.9.1984, the date of LAC No. 24/2011 Page 18 of 26 Shankar vs. UOI amendment came into force.
But the petitioner has reservations, that no scientific criteria has been mentioned in devising the BlockA and BlockB, the land falls in same patch but it was treated differently. Secondly, the land is at prime location, it abuts on main road leading Okhla, which is one of institutional and industrial areas. It has potential value, which may be judged from the present scenario. The other adjacent land acquired in the area by same Award, has already been assessed in number of judgments, which have been relied in evidence. Hence, Land Acquisition Collector has not assessed correct market value of land nor awarded it to the petitioner, but market value stand established by findings given by superior courts. Accordingly, the petitioner is entitled for enhanced compensation with statutory benefits. In addition ld. Predecessor has also enhanced the amount at market rate of Rs.15,000/ per bigha in same award in another case/LAC no.362/1/2006 Bhola through LRs Vs UOI by judgment dated 18.8.2006, the petitioner is to be treated equally.
Now Ld. Counsel for Union of India requests that precedent Land Acquisition Officer cum DSWO A P Appellant Vs M/s B V Reddy and sons was not brought to the information of Ld. Predecessor, but it does not mean that it cannot be considered in the present case. LAC No. 24/2011 Page 19 of 26 Shankar vs. UOI 8.2.1 The rival submission are considered and analyzed in the light of record, statutory provisions of law and law laid down in precedent/case law either presented on behalf of petitioner or otherwise. The reference petition under section 18 of the Act, is pursuant to dis satisfaction of petitioner to the amount / market value of land determined as compensation on the date of acquisition of land. The petitioner has dual capacity namely coowner of the acquired land and also non occupancy tenant in some other part of land acquired. Section 23(1) of the Act, 1894 lays down the matters to be considered by court in determining the compensation and section 24 of the Act, 1894 talks about the matters to be neglected in determining the compensation. In Adusmilli Gopala Krishna vs. Special Deputy Collector AIR 1980 SC 1870, it was held the court has to consider nature of land, present use and its capacity for higher potential, its precise location in relation to adjoining land, the use to which neighbouring land has been put and impact of such use on land acquired, while assessing the compensation. In Tribeni Devi and others vs. The Collector AIR 1972 SC 417, it was held that the principles for determination of compensation payable to owner of land is the market value which is determined by reference to the price which a seller might LAC No. 24/2011 Page 20 of 26 Shankar vs. UOI reasonably expect to obtain from a willing purchaser but as this may not be possible to ascertain with any amount of precision, the Authority charged with the duty to award compensation is bound to make an estimate judged by an objective standard. In Suresh Kumar vs. Town Improvement Trust AIR 1989 SC 1222 it was held that in estimating the market value of land, the proper way to ascertaining the market value of land is by taking into consideration the special value of land, which ought to be attached to the special advantage possessed by the land like its proximity to developed urbanized areas. Further, the court has to ascertain as best as possible from the materials before it what a willing vendor might reasonably expect to obtain from the willing purchaser for the land in that particular position and with that particular potentiality. The value of the potentiality has to be determined on such material as a available and without indulgence in fits of imagination. 8.2.2 The other position of the petitioner is of nonoccupancy tenant. The occupancy tenant and nonoccupancy tenants have certain rights, which are understood like the occupancy tenant enjoy certain rights and their rent cannot be increased without following rule of law governing them or they cannot be dispossessed without breach of provisions, like LAC No. 24/2011 Page 21 of 26 Shankar vs. UOI non payment of rent. Whereas, in case of nonoccupancy tenant the liability to enhancement of rent is larger than of occupancy tenant. Otherwise there is no larger difference of distribution of compensation to occupancy tenant and nonoccupancy tenants. So far distribution between the landlord and the tenant is concerned, the principle to be followed is to ascertain the amount of rent payable to the landlord and capitalized that rent at many years purchase, then put the money value upon the change if any, of enhancement of he existing rent, total these up and given the same to the landlord, the tenant to get the balance only. In Harkishan & ors Vs. Delhi Simla Catholic Archdiocese 19 (1981) DLT 138 - the principles of how to value the respective interest of the landlord and the tenant was discussed visavis method of apportionment was explained that when the land is acquired by the Government for building site, the tenants have the occupancy rights then compensation should be apportioned in equal shares between the landlord and the the tenants. For having regard to this situation, it cannot be said that either the tenant or the landlord is in a more dominant position in this respect. Without each agreeing, no building can be constructed. Their rights of veto are of equal strength. To say the benefit of enhanced value of land should go both to the landlord and the tenant.
LAC No. 24/2011 Page 22 of 26 Shankar vs. UOI 8.2.3 Hence, the petitioner has interest in both capacity as owner as well as nonoccupancy tenant to receive the amount. In Delhi Simla Catholic Archdiocese vs. UOI 45 1991 DLT 76 (supra) all the aspect were dealt in detail which are relevant and important for determining market value of land / the compensation, it was also in respect of Award no. 1238 of Village Jogabai, which is also subject matter of the present petition and also in respect of another Award no. 1369 of Village Bahapur. The compensation at the rate of Rs. 15,000/ per bigha was determined on the date of preliminary notification besides other statutory benefits. Therefore, the petitioner has established issues no. 2 that on date of preliminary notification under section 4 of the Act, the market value of the land acquired was Rs. 15,000/ per bighas.
However, when Award dated 30.12.1961 was passed by Land Acquisition Collector then section 25 (unamended) of the Act, 1894 was law and in B V Reddy case (supra) the Hon'ble Supreme Court of India and Hon'ble High Court of Delhi in Hari Chand & others Vs UOI and others (LAA no.954/2008 dod 28.10.2009) also made it crystal clear that amended provisions of section 25 of the Act, would apply to the acquisitions of land made subsequent to 24.9.1984, therefore, this case is governed by law existing prior to amendment of section 25 of the Act, LAC No. 24/2011 Page 23 of 26 Shankar vs. UOI which are rules as to amount of compensation. Section 25 of the Act, mandates that when applicant makes claim to compensation pursuant to notice U/s 9 of the Act, the amount awarded to him by the court shall not exceed the amount claimed and it should not be less than the amount awarded by the Collector U/s 11 of the Act. In case the applicant has refused to make claim or omitted, without sufficient reasons, to make claim, the amount awarded by the court shall in no case exceed the amount awarded by the Collector. The petitioner has omitted/not made any specific claim pursuant to notice U/s 9 of the Act, therefore, compensation amount is not to exceed the amount awarded by Collector. The Collector had awarded the compensation @ Rs.2,500/ per bigha. Thus the petitioner could not prove issue no.3 in his favour for any enhanced compensation. The issue no.3 is decided against the petitioner. Accordingly, both the issues are disposed off. The other aspect of claim like annual income or severance charges could not have been proved by the petitioner.
Issue No. 4 - Relief
9. In view of the findings given on Issues no. 1 to 3 above, the petitioner/LRs are held entitled for compensation @ Rs.2,500/ per bigha, LAC No. 24/2011 Page 24 of 26 Shankar vs. UOI as determined by Land Acquisition Collector, in respect of petitioner's land acquired as detailed in the statement under section 19 of the Act, 1894, besides 30% solatium under section 23(2) of Act, in lieu of compulsory acquisition of land, interest @ 12% per annum under section 23(1) from the date of notification upto the date of award by LAC (i.e. 30.12.1961) or date of taking of possession (i.e. 07.02.1962), whichever is earlier; 9% interest on excess amount awarded by court (from 07.02.1962 / the date of possession of land to payment of excess amount in the court, for within one year) and 15% per annum interest on such excess amount for subsequent period of one year till amount is deposited in court. Since petitioner is owner of half (1/2) of land comprising Khasra No. 77 (26), 78/1/3 (27), 130 (58), 131 (017), 75/2 (013), the compensation will be half (½) of the land acquired in the capacity of coowner. Similarly petitioner is having half (1/2) share as a non occupancy tenant in the land comprising Khasra No. 127 (519), 133 (66) and 88/1 (23), the compensation will be 50% of half (1/2) of land comprising Khasra No. 127 (519), 133 (66) and 88/1 (23) in the capacity of nonoccupancy tenant.
The reference petition stand answered. Both the sides will bear their own costs. Memo of costs be drawn. A copy of this Award be LAC No. 24/2011 Page 25 of 26 Shankar vs. UOI sent to Land Acquisition Collector, Delhi, for necessary information, action and immediate compliance on his part, after the period of first appeal is over.
Announced in the open Court (INDER JEET SINGH)
on 18 Bhadra, Saka 1936 Addl. District Judge02 (South), Saket
th
New Delhi / 09.09.2014
LAC No. 24/2011 Page 26 of 26