Delhi High Court
Union Of India (Uoi) vs Sh. Parbhati And Ors. [Along With La. ... on 27 April, 2006
Equivalent citations: 133(2006)DLT333
Author: Swatanter Kumar
Bench: Swatanter Kumar, S.L. Bhayana
JUDGMENT Swatanter Kumar, J.
1. Since the appellant has made good the deficiency in Court fee and the ad valorem court fee has been placed on the file, all the applications bearing CMs No. 2064/2006, 2067/2006 and 2080/2006 filed by the appellants under Section 149 of the Code of Civil Procedure (for short 'CPC') have become infructuous and are accordingly disposed of.
2. CMs No. 2064/2006, 2067/2006 and 2080/2006 stand accordingly disposed of.
3. By this order I would also dispose of the above three applications bearing CM No. 2065/2006, CM No. 2068/2006 and CM No. 2081/2006 filed by the appellant under Section 5 of the Limitation Act for condensation of delay in filing the present appeals on merits. The facts giving rise to the present appeals fall in a very narrow compass. The appropriate Government had issued a notification under Section 4 of the Land Acquisition Act (hereinafter referred to as 'the Act') on 10.11.1986 and the declaration under Section 6 of the Act was issued on 5.3.1987 intending to acquire 99 bighas 6 biswas of land situated in the revenue estate of village Kapashera for a public purpose namely 'for linking of Palam Diversion, NH No.8 with Gurgaon, Bye Pass vide Award No. 14/88-89 of village Kapashera.
4. The Collector in consonance with the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'), made and pronounced the award under Section 11 of the Act being Award No. 14/88-89 on 3.3.1989. As per the award, the Collector had awarded a sum of Rs. 13,660/- per bigha for the lands acquired. The Collector took the average market value of the sale transactions between 28.10.1985 to 6.11.1986, while fixing the market value of the acquired land at the relevant time, when the notification under Section 4 of the Act was issued. Claimants were dissatisfied with the reasoning of the Collector and also alleged that the Collector had not taken into consideration any evidence, documentary or otherwise. Being dissatisfied with the award of the Collector, the claimants filed references under Section 18 of the Act for enhancement of the compensation, which in turn were referred to the learned Additional District Judge, Delhi. The learned Additional District Judge after having permitted the parties to lead evidence in support of their respective claims, vide his order dated 29.7.2005 decided the reference and enhanced the market value to Rs. 15,000/- per bigha.
5. The Union of India felt aggrieved from the said enhancement and has filed the above three appeals praying that the records of the concerned LACs (LAC No. 1322/1993, LAC No. 1338/1993 and LAC No. 1130/1993) be called for and the judgment dated 29.7.2005 be set aside and the award of the Collector be restored.
6. The appeals filed by the appellants are also barred by time. For condensation of delay in filing the appeal, the appellants have also filed CMs No. 2065/2006, 2068/2006 and 2081/2006 praying that the delay of 52 days in filing the present appeals be condoned. It has been stated in the applications that after the pronouncement of the award, the file was submitted to different Departments including for seeking opinion of the Deputy Legal Advisor, L&B. The opinion was approved on 22.11.2005 which was subsequently received in the Office of the Deputy Commissioner on 25.11.2005 and the Land Acquisition Collector after receiving the opinion directed the Naib Tehsildar, LA, to process the papers and get the appeal filed within time, after completing the necessary formalities. According to them the delay has occurred for bonafide reasons and is not intentional.
7. Notice of the appeals as well as the applications for condensation of delay was issued to the respondents. As per report of the Registry, the respondents have been served. Despite service, nobody appeared on behalf of the respondents No. 1 to 13. However, the learned Counsel appearing for the respondent No. 14 appeared and made a statement that they are supporting the case of the appellant on merits as well as for condensation of delay. Vide order dated 30.3.2006, the respondents No. 1 to 13 were ordered to be proceeded against ex parte in these proceedings.
8. There is no opposition to the application for condensation of delay and in any case for the reasons stated in the application, which are supported by affidavits, we are satisfied that the appellants have been able to show sufficient cause for condensation of delay of 52 days in filing the appeal. Consequently, the applications for condensation of delay are allowed, the delay in filing of the appeals is condoned. CMs No. 2065/2006, 2068/2006 and 2081/2006 also stand disposed of accordingly.
9. Now, coming to the merits of the appeals. The contention of the learned Counsel appearing for the appellant is that there was no material before the learned Trial Court to arrive at a finding leading to enhancement of the compensation payable to the claimants. It is also contended that the Court has misapplied the principle in the case of Ramesh Solanki v. Union of India AIR 1995 Delhi 358 in granting 12% enhancement. The known principle is that the compensation payable to the claimants can be enhanced only on the basis of positive documentary and oral evidence. The claimants having failed to lead any evidence, either with regard to the potentiality or similarity of the land, the Court could not have enhanced the compensation with reference to the previous award and applied the principle of 'Annual Percentage Increase'. Keeping in view the pleadings of the parties, the Reference Court had framed the following issues:-
(i) What was the fair market value of the land in dispute at the time of notification u/s 4 of the Act and what amount of enchanced compensation, if any, the petitioner is entitled?
(ii) Relief.
10. Issue No. 1 was answered in favor of the claimants and by enhancing the compensation payable @ 15,000/- per bigha instead of Rs. 13,660/- as granted by the Collector. There is hardly any merit in the contention raised on behalf of the appellants that the principle of 'Annual Percentage Increase' cannot be applied as a preposition of law. It is a settled principle that wherever direct evidence is not available, the Court in its discretion, if otherwise satisfied of ingredients for enhancement of compensation in terms of the scheme of the Act, it cannot be said that resort to such a principle is impermissible in law. The learned Judge, relied upon Ex.P1, the award in LAC No. 877/1993 Atri & Atri v. Union of India relating to Village Samalkhan, where the notification under Section 4 was issued on 1.10.1986, and the notification in the present case was subsequent thereto. It is a well accepted cannot of law governing the acquisition proceedings that the potential location, utility of the land would have to be similar before the compensation awarded in the lands of the adjacent villages or adjacent areas can be made the basis for awarding the compensation. While the learned Reference Court rightly relied upon the judgment of the Supreme Court in the case of Sita Ram v. Union of India 79 (1979) DLT 10 (DB) in coming to the conclusion that where there is large scale acquisition of lands in various villages which are adjacent to each other and have the same potential, then the pattern of evaluation the same valuation should be consistently followed by the Court. But where the learned court erred in recording findings is apparent from paragraph 12 of the judgment which reads as under:-
12. Although there is no evidence on record that Village Samalka and village Kapashera are situated adjacent to each other, yet I am of the view that judicial notice can be taken of this fact because in the map of NCT Delhi both these villages have been shown adjacent to each other.
11. The learned Counsel appearing for the appellant relied upon a judgment of the Supreme Court in the case of Kanwar Singh v. Union of India to state that it is not necessary for the court to rely upon the compensation awarded to the claimants of the adjoining villages for the situation and potentiality of the lands in the adjoining villages were different and there cannot be a dispute to this preposition.
12. There cannot be a presumption in relation to matters of fact. The fact must be pleaded and proved in accordance with law. In our view, the learned Counsel could not have taken a judicial notice of the fact that the NCT map of Delhi showed both the villages adjacent to each other and therefore they would be entitled to the same compensation. To this extent, we are unable to sustain the findings recorded by the Court. The onus was on the parties, primarily on the claimants, to prove the potentiality and similarity between the acquired lands of the adjacent villages. In the case of Panna Lal Ghosh and Ors. v. Land Acquisition Collector and Ors. AIR 2004 Supreme Court 1179, again the Supreme Court reiterated the principle enunciated in the case of Balak Ram Gupta. There is no direct evidence on this issue and the reliance placed upon by the learned Court upon the map of NCT of Delhi which was neither exhibited on record nor was tendered in evidence, does not appear to be a correct approach of law. In view of the aforestated circumstances, we accept this appeal partially and set aside the award dated 29.7.2005 passed by the learned Additional District Judge, Delhi, and remand the matter back with the direction that the parties would appear before the Reference Court on (sic) and lead evidence on that issue in accordance with law. This direction, we are issuing in the interest of justice and to ensure that the compensation awarded to the owners of the lands are in accordance with law. The Court cannot overlook the fact that the acquisition is not a voluntary sale on the part of the claimants. It is a compulsion where the claimants are left with no choice but to surrender their lands in accordance with law. To give advantage to the State on such pleas may not be a legal approach in consonance with the scheme of the Act because to give just and fair market value of the land as it existed at the time of the notification is the obligation of the State.