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[Cites 44, Cited by 0]

Delhi District Court

Sh. Alok Singh & Ms. Namrita Singh vs Union Of India on 5 July, 2008

                                        1


           IN THE COURT OF SHRI YASHWANT KUMAR : 
           ADDITIONAL DISTRICT JUDGE (LAC) : DELHI

LAC No.         : 375/1/06              AWARD NO : 13/2001­02
Old No.         : 39/02                 VILLAGE       : Jantar Mantar, 
                                                        New Delhi
In the matter of :

Sh. Alok Singh & Ms. Namrita  Singh
Both children of late Sh.Pushpender Singh
R/o H.No.90, Sector­8­A, Chandigarh
                                                        ...petitioners

                                     Versus

1       Union of India,
        through the Land Acquisition 
        Collector, District New Delhi
        Jam Nagar House, Delhi

2       Delhi Metro Rail Corporation Ltd.
        NBCC Building, Bhishma Pitamah Marg,
        Pragati Vihar, New Delhi­ 110003
                                          ...Respondents

A W A R D REFERENCE U/S 18 OF THE LAND ACQUISITION ACT 1 Vide notification No.F­7(35)/95/L&B/LA/Vol.XI/18814 dt. 31.03.2000 U/s 4 of the Land Acquisition Act (hereinafter referred to as the LA Act) and declaration was also made vide notification No.F­7(35)/95/L&B/LA/Vol.XI/ 2198 dt. 23.05.2000 U/sec. 6 of the LA Act and the notification No.F­7(35)/95/L&B/LA/Vol.XI/ 2198 dt. 23.05.2000 U/sec. 17(1) of the LA Act, the land measuring 10800 sq. mtrs. in respect of the property bearing plot no.2, Block no.125 known as 8, Jantar Mantar, New Delhi as per statement U/sec. 19 of the LA Act vide the award no.13/2001­02 was acquired by the Govt. for making Traffic Integration and Intake shaft for under ground Metro at Patel Chowk MRTS Station. The Land Acquisition 2 Collector (hereinafter referred to as LAC), after completing all the requirements as provided under the Act, awarded the compensation @ Rs.18,480/­ per sq. mtr. besides statutory benefits. 2 Feeling dissatisfied with the quantum of compensation awarded by the LAC, the petitioners herein filed petition U/s 18 of the LA Act for proper adjudication/market value of the acquired land which was sent to the reference court.

3 In this reference petition, the petitioners have sought the enhancement of compensation on the grounds among others that the petitioners are co­owners having a combined 12.5% share in the property measuring 10,800 sq. mtrs situated on plot no.2 in block no.125 also known as 8, Jantar Mantar Road, New Delhi. The petitioners have received the said award under protest. Out of the total compensation assessed in the said award, an amount of Rs.15,81,64,867/­ of the said compensation, in terms of section 17 (3A) of the LA Act has been disbursed to all the co­owners of the said property as per their respective shares in the same, vide order/ interim award dt.03.10.2000, passed by the LAC. The petitioners have received the said interim award and the money disbursed there under protest. As there was some dispute as to the apportionment and rights pertaining to the claim of some portion of the compensation to be awarded in lieu of the acquisition of the said property and the same was referred to the Ld. ADJ, Delhi 3 which dispute was decided vide order dt. 29.05.2001 by the Ld. ADJ, Delhi, therefore, in these circumstances, the petitioners along with other co­owners of the said property were awarded further sum of Rs.5,18,91,840/­ as compensation in lieu of the acquisition of the said property. The said order has been duly executed and the money has accordingly been disbursed to the petitioners and the other co­owners of the above mentioned property in accordance with their respective shares.

4 The petitioners are very much aggrieved with the aforesaid award made in respect of the aforesaid property of the petitioners and do not accept the same. Since the emergency provisions u/sec. 17 (1) of the LA Act were made applicable to the said property, therefore, the petitioners were deprived of their valuable rights to file their objections u/sec. 5­A of the LA Act against the proposed acquisition of their property. The petitioners having no other option had duly filed their claims before the LAC on 07.09.2000 in terms of notifications u/sec. 9 & 10 of the LA Act. According to the petitioners, the LAC has assessed the market value of the land situated on the said property @ Rs.18,480/­ per sq. mtr. and this figure is totally illusory, ridiculously low and unrealistic. The petitioners have calculated the market value of the acquired land on the basis of true potential which it could have been put, had it not been acquired and the petitioners have calculated the minimum market value of the property in question which can fetch 4 on as­is­where­is condition computed on the basis of comparative chart providing the details of the sale price of various properties situated in the vicinity of the said property evidenced by appropriate documents like registered sale deeds, etc. @ Rs.1,29,372/­ per sq. mtr. In addition to the above prevailing land rate, the petitioners have further claimed compensation @ Rs.5,000/­ per tree for 225 trees standing in the property. The petitioners have also claimed compensation for incidental damages suffered by them u/sec. 23 of the LA Act. The LAC has not only failed to consider, determine and assess and market value of the said property as on 31.03.2000 which comes to Rs.1,93,434/­ per sq. mtr. but has wrongly, illegally and arbitrarily assessed the market value of the land only on the basis of schedule of market price of land in Delhi issued by Ministry of Urban Development, Govt. of India vide letter No.J22011/4/95/LD dt.16.04.1999 for residential areas in the vicinity of which the said properties situated. The LAC has gravely erred in not considering the fact that the schedule of market price of the land issued by the Ministry of Urban Development referred to above is merely an inter office memo and is only meant for charging stamp duty and the amount of un­earned increase from the landlord/ perpetual lessees while granting them permission to sell their property for their own use and purpose. Therefore, the schedule of market price does not at all represent the current market value of an acquired land which in the present case is situated in a very very posh locality, known as 8, 5 Jantar Mantar Road, New Delhi, having the primemost location, situation, environment and various other unique advantages and benefits besides a great potential of being developed into a Group Housing Complex and even a commercial complex for which plans had been submitted for approval to various authorities in respect of which sanction had been given and the petitioners & the other co­ owners of the said property had fulfilled and completed with all the necessary requirements including the payment of development charges amounting to Rs.5,37,66,993/­ during the period 1994­95. The said development charges deposited by the petitioners were not reimbursed back to them for almost a decade and in the circumstances, the petitioners were losing heavy interest of the same.

5 It is also the case of the petitioners that the LAC has gravely erred in brushing aside and ignoring the fact that the final approval for constructing a Group Housing Complex at property bearing No.5, Jantar Mantar Road, which is on the same road on which the said property is situated, had also been granted by the Competent Authorities while the petitioners' project for constructing a Group Housing Complex was subsequently cancelled/ terminated only on account of the proposed acquisition of the claimant's property and on the issuance of the notification u/sec. 4 & 6 of the LA Act. Had there been no acquisition proceedings against the petitioners' property, the petitioners would 6 have been entitled to construct a Group Housing Complex on the acquired property as the owner of 5 Jantar Mantar Road, New Delhi had been allowed to do so. The true market value of the acquired property having potential of being developed or built up as multi­ storeyed group housing complex has been mentioned in para G on page no.7 of the reference petition. The acquired property is possessed of a great potential of being developed and a multi­ storeyed commercial complex as is also advertised by Metro and the spaces therein could have been sold at a very high prices namely, minimum at Rs.20,000/­ per sq. ft. and so the property in question has the market price of Rs.2,08,90,89,500/­ (inclusive of 5,00,00,000/­ i.e. the price for parking spaces). The LAC has committed a grave error of fact and law in totally ignoring and brushing aside the comparative chart of market prices of different properties sold in the adjoining areas/ vicinity of the said property provided and submitted by the petitioners in the claims filed by them. The comparative chart so submitted by the petitioners was in respect of residential properties, which in fact, possesses lesser market value and do not have the potentiality of being developed into Group Housing Complex or even an commercial complex while on the contrary the said property has a great potential of being developed into a Group Housing Complex and even a commercial complex. Moreover, the list of properties mentioned in the comparative chart, provided by the petitioners in their claim, though, situated nearby are in fact inferior in comparison to the 7 locality/ area in which the said property is situated, namely, Jantar Mantar Road.

6 It is further the case of the petitioners that the LAC has arbitrarily and unreasonably brushed aside and totally ignored the sale instance provided by the petitioners of property bearing no.22, Ratendon Road (now known as Amrita Shergil Marg) measuring 4400 sq. yards i.e. 3679 sq mtrs. which was sold in a public auction held by the Hon'ble High Court of Delhi in favour of M/s H.S. Real Estate in October, 1999 vide its order dt. 03.12.1999 passed in Execution Case No.173/1999 titled Sh.B.K.Khanna Vs K.N.Khanna. The said property had a very shabby and dilapidated small building constructed in the year 1951 and the norms and rules of any construction on the land therein is subject to the Lutyen's Bangalow Zone restrictions/ guidelines dt. 08.02.1988 issued by the Ministry of Urban Development under which no construction either by way of addition or alteration to the existing structure is permissible and allowed. The sale price of the said property bearing no.22, Ratendon Road, New Delhi as on October, 1999 was @ Rs.71,380/­ per sq. mtr. The another relevant feature of the property no.22, Ratendon Road, New Delhi which minimized its auction sale price was that there was a long and multifarious litigation between the two brothers/ co­owners of that property namely, B.K.Khanna and K.N.Khanna and the said multifarious litigation was pending in the Hon'ble High Court of Delhi and the 8 said property was sold by public auction with all those disputes which were pending between the two brothers. The said property was sold subject to final result of litigation which considerably lowered down its sale price. Had the property bearing no.22, Ratendon Road, New Delhi been free from litigations and the Lutyen's Bungalow Zone Restrictions, the same would have fetched a much higher value i.e. even double or more than the highest bidder of the same has paid.

7 In addition to the above, the petitioners had produced sale instances of property bearing flat no.35, Dakshineshwar building, 10, Hailey Road, plot no.30, Block No.148, known as 11, Barakhamba Road, New Delhi and property bearing no.68, Golf Links, New Delhi and others to evidence the high market value of the acquired property. The flat No.35, Dakshineshwar building, 10, Hailey Road was purchased by M/s Lomin Agencies (Pvt.) Ltd. and M/s Promark Commercial (Pvt.) Ltd. in the year 1996 for a sale consideration of Rs.1,00,00,000/­. The total area of the said flat was 1450 sq. ft. (134 sq. mtr.) and the rate at which the said flat was sold is Rs.74,624/­ per sq. mtr. Further, property bearing no.11, Barakhamba Road, New Delhi was sold vide registered sale deed dt. 06.10.1997 to M/s UNI Chand Builders (P) Ltd. having an area of 4791 sq. mtrs. @ Rs.58,443/­ per sq. mtr. If the increase in prices from the year October, 1997 to March, 2000 is computed/ added to Rs.58,443/­ per sq. mtr., the market value of the property in 9 question in March, 2000 would be approximately Rs.90,000/­ per sq. mtr. The property bearing no.68, Golf Links, New Delhi was sold vide registered sale deed dt. 03.06.1998 to M/s Southern Petro Chemicals Industries Corporation Ltd. The total area of the said property is 404 sq. mtrs. and the rate at which the said property sold was Rs.1,39,266/­ per sq. mtr. If the increase in prices from the year June, 1998 to March, 2000 is computed/ added to Rs.1,39,266/­ per sq. mtr., the market value of the said property in March, 2000 would be approximately at Rs.1,84,206/­ per sq. mtr. The property bearing no.61, Golf Links, New Delhi was sold @ Rs.1,16,618/­ per sq. mtr. to DBS Financial Services Pvt. Ltd. If the increase in prices from the year 1999 to March, 2000 is computed/ added to Rs.1,16,618/­ per sq. mtr., the market value of the said property in March, 2000 would be approximately at Rs.1,44,169/­ per sq. mtr. The petitioners have mentioned the comparative chart of the said properties in para Q on page 13 & 14 of the reference petition. 8 The petitioners have also stated in the reference petition that the property in question is situated in the heart of New Delhi and is in very close proximity to Parliament House, Rashtrapati Bhawan, North Block and South Block, Sansad Marg, other private and government buildings, used for office/ commercial purpose schools, hospitals, shopping market, banks, courts (particularly Hon'ble High court and Hon'ble Supreme Court), Connaught Place which is a premier shopping, retail and commercial centre of India. 10 The said property is also well connected as it is walking distance from Bus stops, Taxi stands, Auto Rickshaw stands, etc. Further, the said property has an excellent environment as India Gate Lawns, Boat Club, National Stadium, etc. surrounded it. In the circumstances, the said property is located in a place, where it will provide the metro with a very access, having a great potential for commercial use. This fact is also evidenced by the site plan of Delhi filed with the reference petition in pointing the location of the property in question. Even otherwise, the LAC has himself admitted & observed in the impugned award that the acquired property is located in the Connaught Place area which is fully developed commercially and is dotted with beautifully constructed government accommodations, private accommodations, buildings, etc. and that the property in question has the said potential. Even though, the LAC has also stated in the said award that the aforesaid facts are to be kept in mind yet while determining the market value of the said property as on 31.03.2000, the LAC has wrongly, illegally, arbitrarily & un­reasonably assessed the market value of the said property at an ridiculously low rate on the basis of the alleged scheduled market price for land in Delhi for collection of stamp duty, etc, issued by the Ministry of Urban Development, Government of India, dt. 16.04.1999 @ Rs.18,480/­ per sq. mtr. In these circumstances, the LAC has totally disregarded the Law laid down by the Hon'ble Supreme Court of India, which its numerous judgments has held that in order to determine the market price of 11 ''the said property''/ land the following factors are to be taken into account:

i Past, present and future potential of ''the said property'', ii Locality in which ''the said property'' is situated, iii Added benefits and advantages of ''the said property'' in comparison to the other lands situated in close proximity/ vicinity to ''the said property'' & iv Comparable sales, i.e. the sales price of other lands/ properties similarly situated v Opinion of experts

9 The petitioners have also stated that the LAC has arbitrarily and illegally taken into consideration four properties mentioned in the impugned award, having respective land rates of Rs.3,478/­ per sq. mtr, Rs.10,549/­ per sq. mtr., Rs.14,286/­ per sq. mtr. and Rs.14,444/­ per sq. mtr. The LAC has wrongly, erroneously and thoughtlessly compared the market value of the said property with the alleged value of parking space located in basement of Harsh Bhawan, a small flat located in basement of Harsha Bhawan and two residential spaces situated at Hanuman Lane. The comparison of the said four properties by the LAC for assessing the market value of the said property/ acquired land is wholly illogical, illegal, arbitrary and totally out of the context. These properties can in no event and wildest of imaginations, represent the market value of 8, Jantar Mantar Road, New Delhi and in the circumstances, they can in no event be compared with the said acquired property. To 12 compare the land in question, having an area of 2.67 acres, situated in the most prime and poshest locality of the country, having a beautifully constructed building on it, surrounded by huge private lawns and 250 trees, with a parking space and a small flat in the basement of a commercial building (Harsh Bhawan) situated in a very very congested and highly polluted area and the residential spaces in Hanuman Lane which is a very narrow and congested back lane of Hanuman Road and is mainly used for providing spaces for servant quarters is not only illegal, illogical and out of context but is also ridiculous. The petitioners have enclosed the photographs of the above mentioned four properties situate at Harsh Bhawan and Hanuman Lane and the area adjoining them for ready reference. The LAC has also committed a grave error in grossly undervaluing the price of the 55 big trees and 38 medium trees. Whereas, there were 75 big trees and 125 medium trees in the acquired property. The petitioners have also claimed the statutory benefits i.e. interest of the market price of the land including solatium u/sec. 28 & 34 of the LA Act in view of the judgment passed by the Apex Court in the case titled Sunder Vs UOI on 19.09.2001. On these grounds among others, the petitioners have filed this reference petition claiming Rs.1,93,434.21 ps. per sq. mtr. on the basis of its true potential. The petitioners have also claimed for damages in addition to compensation for valuable trees standing in the property besides statutory benefits as averred in the reference petition. 13 10 The UOI, in its written statement, has raised the objections on the grounds that the petitioners are not recorded owner/bhoomidar of the land under reference, as such he is not entitled to get any compensation. Moreover, the LAC has forwarded the compensation of this land to the court of ADJ U/sec. 30­31 of the LA Act. The petitioners are not entitled to receive the enhancement of compensation in respect of land in question as the L&DO is the recorded owner of the same. The compensation was also assessed in the name of L&DO by the LAC. The correctness of the khasra numbers, their area and the extent of share of the petitioners therein admitted only to the extent as specified by the LAC in his statement furnished U/sec. 19 of the LA Act. In response to the notice issued by the LAC u/sec. 9 &10 of the LA Act, the petitioners have preferred claim. There was no structure, tree, well, or tube well on the land in question at the time of publication of notification u/sec. 4 of the LA Act.

11 DMRC, in its written statement, has raised the objections on the ground that the LAC has taken into consideration all the material placed before him and has also considered among other things the potential of the said land while arriving at the market price of the said land. The LAC has correctly assessed the market value of the property by taking into consideration all the relevant factors. The petitioners have failed to produce any documents to 14 substantiate their claim that the relevant municipal authorities approved the alleged project of the petitioners or that the petitioners took any steps to commence the said project. In any case, the status of the property acquired under the act is to be judged as on the date of acquisition and not according to the use to which such property could be put in future. The petitioners have submitted hypothetical scenario which cannot be a substitute for an legal evaluation of the market price of the property in question. The evidence submitted by the petitioners was of the properties which were neither situated in the same area nor were similar to the property in question. Further, the evidence provided by the petitioners itself had great variances in the price and thus was not dependable for evaluation of the market price. The example of the properties mentioned in the said paragraph are neither equivalent in area to the property in question nor the said properties are situated in the vicinity of the property in question. 12 It is further stated that the price which a property fetches at an auction can never be the true yardstick of the current and prevailing market price, as the parameters and the dimensions of an auction sale are totally different and cannot in any circumstances be equated with a voluntary transaction at arms length which occurs on a principal to principal basis of a sale of a property. An auction by its very nature entails of fixation of a reserved price of the property below which the bids of prospective 15 bidders are not accepted. The bidding process by its very definition has competitive offers by varied parties, ingrained into it and thus cannot be reflective of the uninfluenced price of the property. The example of property no.22, Ratendon Road, New Delhi is inappropriate as not only it is a smaller property but also situated about 5 kms. approximately away from the property in question and further it was sold by an auction which cannot the uninfluenced market price of the property. An example of a constructed flat which is sold on the square feet basis and is also of a very small area, apart from it not being situated in the vicinity of the property in question cannot in any circumstances be considered for fixation of a market value of the property in question which is in total about 10,800 sq. mtr. in area. A sale deed of 1997 and that too of a property which is not only smaller in a size but also situated far away from the property in question cannot be reckoned for fixation of the market price of the property in question in March, 2000. A thumb rule of loading the price of the property by 15% annually cannot be accepted as it is contrary to legal principles as established by the apex court and as it is also contrary to the facts & circumstances relating to the sale and purchase of the property in the city of Delhi in the relevant period. The property at Barakhamba Road mentioned in the reference petition is a property situated in the commercial area and thus cannot be compared with the property in question where the commercial use of the land is not permitted. The property no.68, 16 Golf Links, New Delhi is not only a small property consisting of only 404 sq. mtrs. as stated by the petitioners themselves but it is also situated about 6 kms away from the property in question and thus it cannot be the basis for calculation of the market price of the property in question. The property no.61, Golf Link, New Delhi is admittedly smaller in size in comparison with the property in question and it is situated approximately 6 kms away from the property in question. Therefore, the said property in Golf Links cannot form the basis for the fixation of the market price of the property in question. All other averments made in the reference petition have been denied except matter of record by DMRC. 13 The petitioners have filed the replications to the written statements filed by the respondents wherein the averments made in the reference petition have been reaffirmed and the defence taken in the written statements by the respondents has been denied.

14 On the pleadings of the parties, the following issues were framed by the Ld. Predecessor Court on 25.11.2002 which are as under :

1 What was the right, title and interest of the petitioners in the acquired property?
2 To what enhancement in compensation, if any, the petitioners is entitled to?
3 Relief 17

15 The petitioners, in support of their case, have examined Sh.Kamal Raj Sharma, Judicial Assistant, Record Room, High Court of Delhi as PW1 who brought the summoned record pertaining to the Ex. case no.173 of 91 titled as Bimal Krishan Khanna Vs K. N. Khanna & Ors., the certified copy dt. 03.12.1999 has been proved as Ex.PW1/A. Sh.Prabhu Lal, UDC, Sub­Registrar, 7, I.N.A., New Delhi who brought the summoned record pertaining to the sale deeds of property no.11, Barakhamba Road, New Delhi and property no.68, Golf Links and examined himself as PW2. PW2 has proved the certified copies of the aforesaid sale deeds as Ex.PW2/A & Ex.PW2/B respectively. Sh.Hans Raj, Inspector, Appropriate Authority, Janpat Bhawan, New Delhi also brought the summoned record in respect of property no.61, Golf Link, New Delhi and was examined as PW3. PW3 has proved the certified true copy of the same as Ex.PW3/A. Sh.S.R.Battachariya, UDC, Land & Development, Nirman Bhawan, New Delhi has been examined as PW4 who brought the summoned record regarding the letter dt. 09.01.1995 issued to Hardev Singh & Ors. and proved the copy of the same as Ex.PW4/A. PW4 identified the signatures of Sh.L.D. Ganotra on the said letter which has been exhibited as Ex.PW4/B. Sh. Vishwa Mitera Ken, Govt. approved valuer, R/o 16, Hanuman Road, New Delhi was also examined as PW5 who has tendered his affidavit as Ex.PW5/A and also proved the original valuation report duly signed by him in LAC No.21/2002 as Ex.PW5/B on 08.01.2003. 18 16 On 05.02.2003, it was requested by the Ld. Counsel for the petitioners in the reference court that all the five cases may be consolidated as the subject matter of the property in question is the same. Ld. Counsel for the respondents have no objection if all the cases are consolidated. Therefore, vide order dt. 05.02.2003 of the Ld. Predecessor Court, all the similar cases have been consolidated and the case of LAC No.41/2002 (New LAC No.377/1/06) titled Adil Singh Vs UOI & Anr. has been treated as leading case wherein the evidence of the cases has been recorded.

17 However, it is pertinent to mention here that the counsel for the petitioner in LAC No.41/2002 (New LAC No.377/1/06) titled Adil Singh Vs UOI & Anr. filed an application u/sec. 151 CPC seeking necessary directions i.e. for allowing him to lead additional evidence. However, vide order dt. 02.09.2006 of this reference court, the said application was dismissed. C.M.No.14322/ 06 and C.M. (M) No.1673/06 was filed by the petitioner therein in the Hon'ble High Court of Delhi. Certified copy of the order dt. 31.10.2006 in the aforesaid C.M. No.14322/ 06 and C.M. (M) No.1673/06 passed by the Hon'ble High Court of Delhi was filed whereby the Hon'ble High Court of Delhi while disposing the petition and the application held as under :

''After some hearing it is agreed that there is no requirement of the petitioners leading any additional evidence in view of the fact 19 that judicial notice can be taken by the ADJ of the Distances of the different properties from the suit property in respect of which the petitioners has already led evidence about the value of such properties. The distances are given in para 5 of the application and it is open to the respondent to point out whether there is any discrepancy in the said distances. '' 18 In compliance of the order dt. 31.10.2006 of the Hon'ble High Court of Delhi, the respondents were given opportunities by this reference court to point out whether there is any discrepancy in the said distances but no such discrepancy was pointed out by the respondents. However, an application u/sec. 151 CPC was filed by DMRC for making necessary directions and seeking adjournment of this reference stating the facts that the SLP has been filed by DMRC before the Hon'ble Supreme Court of India against the orders dt. 31.10.2006 passed by the Hon'ble High Court of Delhi. Vide order dt. 11.05.2007 of the Hon'ble Supreme Court of India, the appeal filed by DMRC was allowed. Operative part of the said order dt. 11.05.2007 of the Hon'ble Supreme Court of India is as under :
''In our opinion, it would be in the interest of justice if the order which has been passed by the High Court without hearing opponent No.2 (appellant herein) is set aside and the High Court will decide the same after affording an opportunity of hearing to the said opponent. We are not expressing any opinion on the merits of the case. The matter is remitted to the High Court. The High Court will decide it on its own merits.
It is also stated that the matter was very old and several adjournments were granted before the reference court. Though 20 it was stated by the learned counsel for the appellant that many adjournments were sought by the respondent, we also express no opinion. The High Court will decide the same in accordance with law as expeditiously as is possible preferably within a period of three months from the date of the receipt of the copy of this order.'' 19 An application u/sec. 151 CPC was again filed by the petitioner in LAC No.41/2002 (New LAC No.377/1/06) titled Adil Singh Vs UOI & Anr. for adducing additional evidence on the ground that the evidence was not in existence at the time of leading and concluding the evidence by the petitioner and the respondents and according to the petitioner, the documents sought to be adduced as additional evidence are necessary for proper adjudication of this reference. Vide order dt. 05.12.2007 of this reference court, in LAC No.41/2002 (New LAC No.377/1/06) titled Adil Singh Vs UOI & Anr., the aforesaid application u/sec. 151 CPC was allowed. An order dt. 12.12.2007 passed by the Hon'ble High Court of Delhi in C.M.(M) No.1673/2006 filed by the petitioner therein was received in this reference court whereby this reference court was directed to take on record an authentic map of the Union Territory of Delhi or an extract thereof and as issued by either UOI or Govt. of NCT, Delhi or the surveyor General or any department or statutory authority under the aegis of UOI or Govt. of NCT, Delhi and consider the facts of distance of roads in Delhi while considering the evidence led by the petitioner therein to sale instances of various properties in Delhi.
21
20 Sh.Adil Singh/ petitioner, in LAC No.41/2002 (New LAC No.377/1/06) titled Adil Singh Vs UOI & Anr., has examined himself as PW6 who has tendered his examination in chief by way of affidavit as Ex.PW6/1. PW6, in his affidavit Ex.PW6/1, has exhibited the original public notice dt. 02.04.2007 issued by DMRC in the English Daily Newspaper ''The Times of India'' as Ex.PW6/A, ''request for proposal'' document published/ issued by DMRC calling for tenders and laying down conditions for development of a Five Star Hotel at the acquired property and also providing the detailed location of the acquired property as Ex.PW6/B, original map of Delhi (containing the scale) issued by the Survey of India (Deptt. of Govt. of India) to measure the distances between the properties as Ex.PW6/C, the original receipt dt. 12.12.2007 issued by the Survey of India on the purchase of the aforesaid map as Ex.PW6/D, photocopy of map published by Eicher Goodearth Ltd.

as Ex.PW6/E (Ex.PW6/E is the photocopy and the same has been marked as Mark­X) and the original city map Booklet published by Eicher Goodearth Ltd. as Ex.PW6/F. Whereas, the counsel for the respondents filed the attested copy of schedule of market rates and exhibited as Ex.RW1/A and further tendered in evidence the certified copy of sale deed Ex.RW1/B to E. 21 I have heard the Ld. Counsel for the parties and have perused the entire records. My issue­wise findings are as under: 22

ISSUE NO.1

22 The onus to prove this issue is upon the petitioners. The petitioners have averred in the reference petition that there was a dispute to the apportionment and rights in respect of the claim of some portion of the compensation which was referred to the Ld. ADJ, Delhi and the said dispute was decided vide order dt. 29.05.2001 by the Ld. ADJ, Delhi. The petitioners along with other co­owners of the said property were awarded further sum of Rs.5,18,91,840/­ as compensation of the property in question. It is further averred in the reference petition that the said order has been duly executed and the money has been disbursed to the petitioners and the other co­owners of the above mentioned property as per their respective shares. The petitioners have also filed copy of the said judgment dt. 29.05.2001 passed by the Ld. ADJ, Delhi in LAC No.96/2000 titled UOI Vs Adil Singh & Ors. whereby L&DO has been held entitled to compensation at Rs.960/­ and rest of the compensation has been awarded to the petitioners herein and the co­sharers. The respondents have neither led any evidence nor proved any document in rebuttal. Even otherwise, the counsel for the parties have not apprised to this court, if any appeal against the judgment passed by the Ld. ADJ, Delhi in the reference u/sec. 30­31 of the LA Act, is pending before the Hon'ble High Court of Delhi. Thus, I hold that the petitioners have got the right, title and interest as per their shares in the property in question. This issue is answered accordingly.

23

ISSUE NO.2 23 Before deciding this issue, let us examine whether the reference petition has been filed within a period of limitation. The petitioners have averred in the reference petition that since the emergency provisions u/sec. 17 (1) of the LA Act were made applicable to the said property, therefore, the petitioners were deprived of their valuable rights to file their objections u/sec. 5­A of the LA Act against the proposed acquisition of their property, therefore, the petitioners had no option but filed their claim before the LAC on 07.09.2000 in terms of notifications u/sec. 9 & 10 of the LA Act. Perusal of the record reveals that the award No.13/2001­ 2002 which is in question was announced by the LAC on 05.03.2002. The petitioners have filed the reference petition dt. 12.04.2002 u/sec. 18 of the LA Act before the LAC on 20.05.2002. In this context, a reliance can be placed upon the judgment reported as Bharat Chand Dilwali Vs UOI 1988, RLR 224 wherein it was held by the Hon'ble High Court of Delhi that bare knowledge of the award is not enough. Parties must have knowledge of the contents of the award. Further in Rajjan Hirabhai Motibhai & Ors Vs Deputy Collector, Land Acquisition and Rehabilitation, Panam project, Godhra and Ors AIR 1995 Gujrat 170, it was held by the Hon'ble High Court of Gujarat that Collector has not merely to intimate parties about passing of award but he has to communicate essential contents of award, if not copy of award. The respondents have not led any evidence to prove on record that the reference 24 petition is barred by limitation. Therefore, I hold that the reference petition has been filed within the period of limitation. 24 Now, I shall decide the issue no.2. The onus to prove this issue is upon the petitioners and the respondents. It has been held in several judgments of the Hon'ble Supreme Court as well as the Hon'ble High Court of Delhi that while assessing the market value of the land which is acquired by the government, situation, nature, potential/ user and neighbouring land, etc, is to be considered. In this context, 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'' 25 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.'' In the case of Shakuntalabai (Smt) & Ors. Vs. State of Maharashtra, reported as (1996) 2 SCC 152 wherein it was held by the Hon'ble Supreme Court of India 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 aforesaid 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 26 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.''

25 Now, let us examine whether the land in question, as averred in the reference petition, can fetch the minimum market value @ Rs.1,29,372/­ per sq. mtr. on as­is­where­is condition computed on the basis of comparative chart providing the details of the sale price of various properties situated in the vicinity of the said property evidenced by appropriate documents like registered sale deeds, etc. However, the petitioners have claimed the market value of the land in question @ Rs.1,93,434/­ per sq. mtr. as on 31.03.2000. Whereas, the LAC, according to the petitioners, has wrongly, illegally and arbitrarily assessed the market value of the land only on the basis of schedule of market price of land in Delhi assessed by Ministry of Urban Development, Govt. of India vide letter No.J22011/4/95/LD dt.16.04.1999 for residential areas in the vicinity of which the said properties situated. The petitioners have also averred that the schedule of market price of the land issued by the Ministry of Urban Development does not represent the current market value of an acquired land which in the present case is situated in a very very posh locality, known as 8, Jantar Mantar Road, New Delhi, having the prime most location, situation, environment and various other unique advantages and benefits besides a great potential of being developed into a Group Housing Complex and even the commercial complex for which plans had been submitted for 27 approval to various authorities and sanction had been given and the petitioners & the other co­owners of the said property had fulfilled and completed with all the necessary requirements including the payment of development charges amounting to Rs.5,37,66,993/­ during the period 1994­95.

26 The petitioners have further stated that the LAC has himself admitted & observed in the impugned award that the acquired property is located in the Connaught Place area which is fully developed commercially and is dotted with beautifully constructed government accommodations, private accommodations, buildings, etc. and that the property in question has the said potential. Perusal of the award in question reveals that the LAC, while determining the market value of the property in question, has admitted in the head MARKET VALUE on page 3 of the award which is as under:

''the land under acquisition is located in Connaught Place area which has been well developed urban/ locale over a long period. This is dotted with beautifully constructed Govt. accommodation, private accommodation, buildings, etc. and the land under acquisition is residential in nature as well. These were kept in mind while arriving at the market value of the land under acquisition in reference to the date of notification u/sec. 4 of the LA Act, 1894 which is 31.03.2000.''

27 The petitioners in support of their evidence have examined Sh.Kamal Raj Sharma, Judicial Assistant, Record Room, High Court of Delhi as PW1 who has proved the certified copy dt. 03.12.1999 28 pertaining to the Ex. case no.173 of 91 titled as Bimal Krishan Khanna Vs K. N. Khanna & Ors. as Ex.PW1/A. In Ex.PW1/A, property bearing no.22, Ratendon Road (now known as Amrita Shergil Marg) measuring 4400 sq. yards i.e. 3679 sq mtrs. was sold for amounting to Rs.26.26 crores in a public auction held by the Hon'ble High Court of Delhi in favour of M/s H.S. Real Estate in October, 1999 vide its order dt. 03.12.1999 passed in Execution Case No.173/1999 titled Sh.B.K.Khanna Vs K.N.Khanna. Sh.Prabhu Lal, UDC, Sub­Registrar, 7, I.N.A., New Delhi has been examined as PW2 who has proved the certified copies of the sale deeds pertaining to property no.11, Barakhamba Road, New Delhi and property no.68, Golf Links. as Ex.PW2/A & Ex.PW2/B respectively. In Ex.PW2/A, the property no.11, Barakhamba Road, New Delhi was sold vide registered sale deed dt. 06.10.1997 to M/s UNI Chand Builders (P) Ltd. having an area of 4791 sq. mtrs. @ Rs.58,443/­ per sq. mtr. In Ex.PW2/B, the property bearing no.68, Golf Links, New Delhi measuring 404 sq. mtrs was sold @ Rs.1,39,266/­ per sq. mtr. vide registered sale deed dt. 03.06.1998 to M/s Southern Petro Chemicals Industries Corporation Ltd. Sh.Hans Raj, Inspector, Appropriate Authority, Janpat Bhawan, New Delhi has also been examined as PW3 who has proved the certified true copy of the sale certificate dt. 22.03.1999 pertaining to the property no.61, Golf Link, New Delhi as Ex.PW3/A. In Ex.PW3/A, the property bearing no.61, Golf Links, New Delhi which is the residential plot measuring 1641 sq. yards was sold for a consideration of 29 Rs.16,00,00,000/­ to DBS Financial Services Pvt. Ltd. The certified true copy of the agreement dt. 26.11.1998 for sale of the said property has also been filed on record.

28 The counsel for the petitioners has argued that the circulars and the notified rates of land issued by the Govt. for determination of market value do not represent the true market value of the land on the date of notification u/sec. 4 of the LA Act. In support of his arguments, the counsel for the petitioners has relied upon the judgment dt. 17.01.1996 passed by the Hon'ble Supreme Court of India reported as U.P.Jal Nigam, Lucknow through its Chairman & Anr. Vs Kalra Properties (P) Ltd., Lucknow & Ors. (1996) 3 SCC 124, it was held that basic value register maintained under Stamp Act for collection of stamp duty cannot form basis for determination of market value. Circulars issued by the Govt. for determination of market value on the basis of basic valuation register are illegal. In the judgment dt. 21.08.1998 passed by the Hon'ble High Court of Delhi in RFA No.65/1981 reported as Bhola Nath & Ors. Vs Union of India 1998 VI AD (DELHI) 159, wherein it was held by the Hon'ble DB of High Court of Delhi that the Govt. notified rates of land are not the basis of compensation. The Ld. Additional District Judge rightly declined to take into consideration the Govt. notified rates of land in the area. The object of the notification of the rates by the Government is quite different and these rates never represent the market value of land in any 30 particular area. The counsel for the petitioners has further argued that meaning of market value has been discussed and held by the Hon'ble Supreme Court of India in the judgment dt. 11.02.1987 passed by the Hon'ble Supreme Court of India in Civil Appeal No.696 of 1973 reported as Mahabir Prasad Santaka & Ors. Vs Collector Cuttack & Ors. AIR 1987 SC 720, it was held that market value means what a willing purchaser would pay to a willing seller for the property having regard to the advantages available to the land and the development activities which may be going on in the vicinity and the potentiality of the land. An offer of sale of land to industrialists on concessional rate with a view to induce them to set up their industries in a particular area does not reflect the prevailing market value of the land. The indsutriaslists who were offered the land at concessional rates are not the willing purchasers. It cannot be ignored that price of land near the vicinity of industrial area is bound to rise.

29 The counsel for the petitioners has further relied upon the judgments in respect of the certified copies of the sale deeds proved by the petitioners on record. In the judgment dt. 02.08.2001 passed by the Hon'ble High Court of Andhra Pradesh in A.S. No.562 of 1997 reported as Sub­Collector & Land Acquisition Officer, Gudur Vs. Venkata Kumaraswamy 2001 (2) LACC 585, it was held that certified copies are admissible in evidence if genuineness of registered sale deed is not in dispute. 31 Parties to the transaction need not be examined. In the judgment dt. 25.08.2001 passed by the Hon'ble Supreme Court of India in Civil Appeal No.6016 of 1999 with Civil Appeal Nos.6017­6032 of 1999 reported as State of Haryana Vs Ram Singh 2001 (2) LACC 247, wherein for determining market value of acquired land, two sale instances were relied upon. The said sale instances were rejected on the ground that neither vendor nor vendee was examined. It was held by the Hon'ble Supreme Court that certified copies of registered sale deeds are admissible in evidence. Case was remanded for proper valuation of the land value. In the judgment dt. 27.02.2001 passed by the Hon'ble Supreme Court of India in Civil Appeal No.1560 of 2001 reported as Land Acquisition Officer & Mandal Revenue Officer Vs V.Narasaiah 2001 (1) LACC 380, wherein the market value was enhanced by the Hon'ble High Court relying on a sale instance. State pleaded that neither vendee nor vendor were examined, therefore, it is not admissible. It was held by the Hon'ble Supreme Court that order of High Court is proper. Examination of parties of the sale deed is not essential. The contents of document of certified copy is admissible in evidence.

30 The counsel for the petitioners has argued that the rates of small area can also be the basis for fixation of larger area. Further, the fact of willing buyer and seller of property as per the principles laid down by the Hon'ble Apex Court should also be taken into 32 account while determining the true market value of the acquired land. In this regard, the counsel for the petitioners has relied upon the judgment dt. 28.02.2003 passed by the Hon'ble Supreme Court of India in Civil Appeals Nos.11733­34 of 1995 with No.11735 of 1995 reported as Ravinder Narain & Anr. Vs Union of India (2003) 4 SCC 481, wherein it was held that rate fixed for smaller plots in the same vicinity can be the basis of fixation of rate for larger area acquired. There is no absolute prohibition against it. Therefore, where there is no other material, it is open to the adjudicating court to make comparison of the prices paid for small plots of land subject to necessary deductions/ adjustments. It was further held that while determing the market value of the land acquired it has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner. The price which a willing vendor might reasonably expect to receive from the willing purchaser must be taken into consideration while at the same time disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must be disregarded. Potentiality of land is also to be considered based on materials as are available. Impracticability of determining the potential value is writ large in almost all cases. There is bound to be some amount of guess work involved while determining the potentiality. In the judgment dt. 04.05.1990 in First Appeal Nos.80, 79 & 78 of 1987 reported as State of U.P. & Ors. Vs Ratan Behari & Anr. 1990 ALL 33 L.J. 535, it was held that normally, the sale deed with smaller area could not be made basis to determine the compensation of bigger areas. However, no hard and fast rule can be laid down in respect of such matters. It depends upon the facts and circumstances of the case. Where no sale deed containing bigger areas is available, the sale deed containing smaller area can be made guide with certain modification keeping in view the surroundings of land and the utility and potentiality of land.

31 The counsel for the petitioners has also argued that even a signle sale deed can also be considered for determining of the true market value. In this context, the counsel for the petitioners has relied upon the judgment dt. 08.03.2002 passed by the Hon'ble High Court of Bombay reported as The Special Land Acquisition Officer, Mhada Vs. Zarine Ashrafali Jariabhai 2002 (2) LACC 82, it was held that for the determination of acquired land, lone comparable sale instance can be relied upon. The counsel for the petitioners has further argued that even sale transaction pertaining to four years prior to acquisition of the land can also be considered for assessing the market value of the acquired land. In support of this argument, the counsel for the petitioners has relied upon the judgment dt. 27.12.2004 passed by the Hon'ble High Court of Andhra Pradesh in FA Nos.2228, 2229, 2230, 2316, 2317 & 3123 of 2004, AS No.2228 of 2004 titled Singareni Colliers Co. Ltd. Vs Kandula Ramaiah & Ors. 2005 (1) LACC, 487, wherein the 34 reference court enhanced market value relying sale instances pertaining to four years prior to the notification u/sec. 4 (1). Beneficiary appellant contending that claimants had knowledge of acquisition and sale instances were cooked up. No evidence brought on record to prove the cooked up theory. The Hon'ble High Court held that no interference is required with the order of reference court determining market value on the basis of sale deeds. The counsel for the petitioners has also argued that so far as distance of the other properties to be considered for fixing the true market value of the acquired land is concerned, even the property at a distance of 2 ½ kms can also be considered for determination of true market value. In this regard, the counsel for the petitioners has relied upon the judgment dt. 07.02.1994 passed by the Hon'ble High Court in F.A No.191 of 1987 resported as State of Maharashtra & Anr. Vs Abdul Sattar & Ors. AIR 1995 Bombay 85, wherein the land covered under sale deed Exhibit 52 at a distance of 2 ½ kms. from the acquired land located in the city was relied upon. Both these lands had equal characteristic of potential values as housing site. It was held that distance between these two lands matters little. The counsel for the petitioners has argued that even judicial notice of distance can also be taken for which the counsel for the petitioners has relied upon the judgment reported as 1962 GLR 787 wherein, according to the petitioners, it was held that it is not necessary to lead evidence to measure distance between the properties but judicial notice can be taken. 35 32 The counsel for the petitioners has also argued that even public auction rates can also be considered for which the counsel for the petitioners has relied upon the judgment dt. 16.07.1991 passed by the Hon'ble High Court of Delhi in RFA No.262 of 1972 reported as Hans Raj Bhalla Vs UOI 45 (1991) DLT 131 (DB), it was held that the public auction has been considered as the most important method of evaluating the market value and prices received in the public auction must be given due sanctity. The counsel for the petitioners has also argued that the property in question has a high potential which can fetch much higher rates than the rates fixed by the LAC. Even otherwise, the property has a great potential of being developed into a Group Housing Complex and even the commercial complex. In support of this argument, the counsel for the petitioners has relied upon the judgment dt. 27.01.1995 passed by the Hon'ble Supreme Court of India in Civil Appeals Nos.1037­39 of 1995 reported as P.Ram Reddy & Ors. Vs Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad & Ors. (1995) 2 SCC 305, it was held that building potentiality of acquired land must be taken into consideration. It was also held that building potentiality is possibility of user of acquired land for building purposes in the immediate or near future.

33 Whereas, the counsel for the respondents have argued that 36 the burden of proof to prove the market value lies upon the petitioners. In this context, the counsel for the respondents have relied upon the judgment dt. 13.12.1996 passed by the Hon'ble Supreme Court of India in Civil Appeals Nos.16967­71 of 1996 reported as Manipur Tea Co.Pvt. Ltd. Vs Collector of Hailakandi (1997) 9 SCC 673, it was held that burden of proof lies on the claimants who must produce evidence to prove the market value. Burden does not shift over to the Government. Compensation awarded by the LAO is an offer which binds the government but it is not conclusive. In the judgment dt. 21.04.1997 passed by the Hon'ble Supreme Court of India in Civil Appeal No.3147 of 1997 reported as Land Acquisition Officer & Sub­Collector, Gadwal Vs Sreelatha Bhoopal (Smt) & Anr. (1997) 9 SCC 628, it was held that burden is on the claimant to prove by acceptable evidence for higher compensation. Award of the Land Acquisition Collector is not evidence stricto sensu but with a view to do substantial justice, the court can look into it and consider the material collected therein. The counsel for the respondents have also argued that the petitioners has not proved on record the similar sale transactions of adjoining properties of the same potentialities and having the bonafide transaction & similar advantages. In this regard, the counsel for the respondents have relied upon the judgment dt. 12.09.1996 passed by the Hon'ble Supreme Court of India in Civil Appeals Nos.4327 of 1991 with Nos.12566­70 of 1996 reported as Basant Kumar & Ors. Vs Union of India & Ors. (1996) 11 SCC 542, 37 it was held that burden is always on the claimant to prove the market value and the court should adopt realistic standards and pragmatic approach in evaluation of the evidence. The doctrine of equality in determination and payment of same compensation for all claimants involved in the same notification is not a good principle. In the judgment dt. 28.02.2003 passed by the Hon'ble Supreme Court of India in Civil Appeals Nos.11733­34 of 1995 with No.11735 of 1995 reported as Ravinder Narain & Anr. Vs Union of India (2003) 4 SCC 481, it was held that principles of fixation of market value with reference to comparable sales to be followed to minimise speculation. It was further held that the requisites for a sale to merit consideration as a comparable sale are :­ i When sale is within a reasonable time of the date of notifiation under section 4 (1); 

ii       it should be a bona fide transaction;

iii      it should be of the land acquired or of the land adjacent to
the      land acquired; and 

iv       it should possess similar advantages.

In the judgment dt. 07.09.2005 passed by the Hon'ble Supreme Court of India in Civil Appeals Nos.1428 of 2004 with other Nos. reported as Ranvir Singh & Anr. Vs UOI (2005) 12 SCC 59, it was held that burden of proof that the acquired land and the land covered by sale transaction bear similar or same potentialities or advantageous features lies on the claimant.

38

34 The counsel for the respondents have further argued that sale deeds of small areas are not comparable to the bigger areas which is in question. In support of this arguments, the counsel for the respondents have relied upon the judgment dt. 23.07.1998 passed by the Hon'ble Supreme Court of India in Civil Appeal No.3450 of 1998 with transfer case ( C ) No.43 of 1996 reported as State of J&K Vs. Mohammad Mateen Wani & Ors. (1998) 6 SCC 233, it was held that sale instances of small area cannot be said to be comparable sale instances. In the judgment dt. 24.02.2006 passed by the Hon'ble Supreme Court of India in Civil Appeals Nos.1288 of 2006 with other nos. reported as Rishi Pal Singh & Ors. Vs Meerut Development Authority & Another (2006) 3 SCC 205, it was held that exemplars of small plots can be taken into consideration specially when other relevant or material evidence not available provided adequate discount given in that behalf. The counsel for the respondents have also argued that the sale deeds relied upon by the petitioners are at a far distance which cannot be the basis for determining the market value. In this context, the counsel for the respondents have relied upon the judgment dt. 14.09.2005 passed by the Hon'ble Supreme Court of India in SLPs (C) Nos.24578­79 of 2004 with other nos. reported as Defence Estate Officer Vs Faizunnisa & Ors. (2006) 9 SCC 162, it was held that land in respect of which sale deed produced by way of evidence located far away from the land sought to be acquired 39 cannot form basis for assessing market value. In the judgment dt. 25.10.1996 passed by the Hon'ble Supreme Court of India in Civil Appeal Nos.14526 of 1996 reported as P.Rajan & Anr. Vs Kerala State Electricity Board & Anr. (1997) 9 SCC 330, it was held that land covered by the sale transaction situated within the municipal limits in a developed area at a distance of 2 ½ kms from the acquired land cannot be relied upon. In the judgment dt. 23.08.1996 passed by the Hon'ble Supreme Court of India in Civil Appeals Nos.11924 & 11934 of 1996 reported as Gujarat Industrial Development Corpn. Vs Narottambhai Morarbhai & Anr. (1996) 11 SCC 159, it was held that sale deed in respect of land situated at a distance of 2 kms from the acquired land is not relevant.

35 The counsel for the respondents have also argued that the property in question does not have the potential, even otherwise, the petitioners has not proved on record the potential of the land as claimed by the petitioners in his reference petition. Therefore, the LAC, after considering the situation, location and surroundings of the land, has rightly assessed the market value of the property in question. In support of their arguments, the counsel for the respondents have relied upon the judgment dt. 30.10.1998 passed by the Hon'ble Supreme Court of India in Civil Appeals Nos.7690 of 1994 with Nos.7691­7698, 7701 of 1994 & 5354­56 of 1998 reported as Kanwar Singh & Ors. Vs Union of India (1998) 8 SCC 40 136, it was held that though bonafide sale transaction showing price paid on or near date of section 4 notification for smaller land with similar advantages are well recognized, however, unless proved otherwise, situation and potentiality of land situated in two different villages would be different. In the judgment dt. 13.04.2005 passed by the Hon'ble Supreme Court of India in Civil Appeals Nos.2485 of 2001 with Nos.2486­87 of 2001 reported as Viluben Jhalejar Contractor (dead) by LRs Vs State of Gujarat (2005) 4 SCC 789, it was held that comparable instances of sale of lands, which have proximity from time angle as well as situation angle, can be considered and a suitable adjustments to be made having regard to various positive and negative factors. In case of acquisition of a large area for specific purpose, deductions can be made by way of development charges.

36 Sh.S.R.Battachariya, UDC, Land & Development, Nirman Bhawan, New Delhi has been further examined PW4 who has proved the letter dt. 09.01.1995 issued to Hardev Singh & Ors. as Ex.PW4/A. PW4 has also identified the signatures of Sh.L.D. Ganotra on the said letter which has been exhibited as Ex.PW4/B. In PW4/A, it is specifically stated that the lessor/ L&DO has no objection for the sanction and release of the building plan for the construction of multi­storeyed Group Housing Building by the NDMC and for commencing the construction pertaining to the plot no.2, block­125, known as 8, Jantar Mantar Road, New Delhi. It is 41 further stated in Ex.PW4/A that the NDMC will sanction the completion plan and the occupation certificate after obtaining another 'No Objection Certificate' from this office which will be issued only after the remaining dues are received by this office/ L&DO. Sh.Vishwa Mitera Ken, Govt. approved valuer, R/o 16, Hanuman Road, New Delhi has been examined as PW5 who has tendered his affidavit as Ex.PW5/A and also proved the original valuation report duly signed by him as Ex.PW5/B. PW5 has deposed that he is a Civil Engineer and worked with railway from 1962 to 1987 and remained post in all the civil related matters. After retirement, he has done the valuation of more than 100 properties and also done the valuation of the land in question. PW5 has further deposed that the use of the property in question is residential. PW5 took note of the adjoining properties i.e. multi­ storeyed complex, namely, Deep Building and the other one is of Feroz Shah Road & Prithvi Raj Road. The numbers of those properties have been mentioned in his valuation report. PW5 had inspected the property in question in August, 2000. When a question was asked by the counsel for the respondents, PW5 replied that on the front side of the property, there is a road. On the right side of the property, there is a multi­storeyed complex. On the left side, there is small road and across it, is the building. On its back also, there is a road and then thereafter there are commercial complexes, details of which is given in his valuation report. PW5 has further deposed that there are three building 42 constructed on the plot in question i.e. main building, Annexy and survant quarters. PW5 has estimated the built up area on the basis of the CPWD rates i.e. the basic plinth area rates of 1992 based on cost index 100. Copy of that circular was brought by PW5 and marked as Mark­B. However, PW5 has deposed that he did not issue any notice to the LAC for his visiting the property in question. PW5 has denied the suggestion that he has never gone to the property in question. During cross examination, PW5 has deposed that he did not calculate the market value of the land in question on the basis of the method adopted by the Govt. However, PW5 vol. that he has applied the developer method. PW5 also deposed that he has referred to the built up land in case No.1 of his report on internal sheet­II as the same was adjacent to the plot in question i.e. known as Dhawan Deep Building. PW5 has further deposed that he has not referred to any particular building on Prithvi Raj Road on which he had mentioned about the built up appartment having been sold of Rs.12,500/­ per sq. ft. PW5 vol. that he was told this rate by the property dealer. PW5 has denied the suggestion that he did not see any relevant documents or the No Objection Certificate by the L&DO to arrive at the market value of the land in question. Since the valuer has not issued any notice to the LAC prior to his visiting to the property in question, even otherwise, rates quoted by valuer on the basis of property dealer hearsay and the market value of the land has not been calculated on the basis of method adopted by the Govt. and further relevant 43 documents have not been referred to and examined by the valuer, therefore, the valuation report Ex.PW5/A cannot be considered for determining the fair market value of the land in question as on 31.03.2000.

37 PW6, in the similar reference i.e. LAC No.377/1/06 titled Adil Singh Vs UOI & Anr., has proved the original public notice dt. 02.04.2007 issued by DMRC in the English Daily Newspaper ''The Times of India'' as Ex.PW6/A. In Ex.PW6/A, DMRC has advertised the tender notice for an opportunity to build and operate Five Star Hotel in the heart of Delhi mentioning that as a part of its own going efforts to generate resources for part financing the MRTS Project through property development, DMRC has identified as parcel of land at 8, Jantar Mantar adjacent to Patel Chowk, MRTS station measuring 10,800 sq. mtrs. approximately for commercial development as Five Star/ Business Hotel. PW6 has further tendered in evidence ''request for proposal'' document for 8, Jantar Mantar issued by DMRC calling for tenders as Ex.PW6/B. In Ex.PW6/B, DMRC has laid down certain conditions for development of a Five Star Hotel at the property in question. In Ex.PW6/B, details of the site i.e. property in question have also been mentioned among others as mentioned in the Ex.PW6/A. 38 The counsel for the respondents on the aforesaid aspects as proved by PW6 has relied upon the judgment dt. 25.07.2001 44 passed by the Hon'ble Supreme Court of India reported as State of Haryana Vs Ram Singh AIR 2001 SCC 2532, it was held that Under S.23 (1) in determining the amount of compensation to be awarded for land acquired under the Act, the Court shall take into consideration the market value of the land at the date of publication of the notification under S. 4(1). The statute does not allow for payment of any further amount on account of 'potential value' over and above the market value. In the judgment dt. 25.07.2001 passed by the Hon'ble Supreme Court of India in Civil Appeal Nos.6016 of 1999 with Nos.6017­32 of 1999 reported as State of Haryana Vs Ram Singh (2001) 6 SCC 254, it was held that payment of any amount over and above market value, on account of potential value, is not permitted. Potential value of acquired land may be taken into account when determining its market value, but once market value has been determined, no further amount may be added on to it. In the judgment dt. 29.11.1994 passed by the Hon'ble Supreme Court of India in Civil Appeal Nos.4056­57 of 1984 with other Nos. reported as Tarlochan Singh & Anr. Vs State of Punjab & Ors. (1995) 2 SCC 424, it was held that future development and potential prospective use of acquisition, etc. are not relevant. Even purpose of acquisition is not relevant. In view of the aforesaid judgments of the Hon'ble Supreme Court of India and the Hon'ble High Courts and also the provisions under the LA Act, the advantages and benefits, if any to be made by the Govt. of the acquired land after the date of acquisition u/sec. 4 of the LA Act 45 cannot be given to the petitioners while considering and determining the true market value of the land in question as on 31.03.2000. Therefore, in view of the aforesaid judgments, the aforesaid evidence does not support the case of the petitioners on the aspect of future potential and benefits of the land which cannot be considered at all while determining the market value of the land in question as on 31.03.2000 i.e. the date of notification u/sec. 4 of the LA Act in the present reference.

39 PW6, in the similar reference i.e. LAC No.377/1/06 titled Adil Singh Vs UOI & Anr., has further proved the original map of Delhi (containing the scale) issued by the Survey of India (Deptt. of Govt. of India) to measure the distances between the properties as Ex.PW6/C, the receipt of the said map has also been proved as Ex.PW6/D, photocopy of map published by Eicher Goodearth Ltd. as Mark­X and the original city map Booklet published by Eicher Goodearth Ltd. as Ex.PW6/F. The sale deed proved by PW1 as Ex.PW1/A pertaining to the land situate at 22, Ratendon Road, sale deed proved by PW2 pertaining to the property at 68, Golf Link, New Delhi as Ex.PW2/B and the sale deed proved by PW3 pertaining to the property at 61, Golf Link, New Delhi as PW3/A are at a far distance which cannot be compared & considered for determining the true market value of the land in question, therefore, the aforesaid sale deeds Ex.PW1/A, Ex.PW2/B and Ex.PW3/A are discarded in view of the aforesaid judgments relied 46 upon by the parties. Now, let us further examine whether the sale deed pertaining to the property situate at 11, Barakhamba Road, New Delhi proved by PW2 as Ex.PW2/A is helpful for determining the true market value of the property in question. As per the original map of Delhi as Ex.PW6/C, the property at Barakhamba Road, New Delhi which is Ex.PW2/A is at a distance of about 1.3 kms which is less than the distance of 2 ½ kms as held in the judgment dt. 07.02.1994 passed by the Hon'ble High Court in F.A No.191 of 1987 reported as State of Maharashtra & Anr. Vs Abdul Sattar & Ors. AIR 1995 Bombay 85, therefore, the sale deed of the property situate at 11, Barakhamba Road, New Delhi is the best piece of evidence which can be compared with the property in question since both the properties i.e. the property in question and the property situate at 11, Barakhamba Road, New Delhi are in well developed areas surrounded with well built up properties, roads, etc. Ex.PW2/A, the property no.11, Barakhamba Road, New Delhi was sold vide registered sale deed dt. 06.10.1997 to M/s UNI Chand Builders (P) Ltd. having an area of 4791 sq. mtrs. @ Rs.58,443/­ per sq. mtr.

40 The counsel for the petitioners has also argued that the sale deeds proved by the petitioners on record are prior to the date of acquisition of the property in question, therefore, escalation in price @ 12% p.a. be also given at the rates of the sale deeds proved by the petitioners while enhancing the compensation. In this 47 context, the counsel for the petitioners has relied upon the judgment dt. 03.02.1995 passed by the Hon'ble High Court of Delhi in RFA No.718 of 1990 with cross Appeal No.816 of 1990 reported as Rameshwar Solanki Vs Union of India AIR 1995 Delhi 358, wherein past practice of High Court to give escalation at rate of Rs.1000/­ per bigha was discarded and escalation given at rate of 12% per year by High Court in earlier decision was held proper. The counsel for the respondents, on the aspect of escalation in price, have also relied upon the judgment dt. 02.11.2000 passed by the Hon'ble Supreme Court of India in Civil Appeal No.4310 of 1997 reported as Land Acquisition Officer Vs B.Vijender Reddy & Ors. (2001) 10 SCC 669, it was held that it is true, in the fixation of rate of compensation under the Land Acquisition Act, there is always some element of guesswork. But that has to be based on some foundation. It must spring from the totality of evidence, the pattern of rate, the pattern of escalation and escalation of price in the years preceding and succeeding Section 4 notification etc. If escalation price @ 12% p.a. is calculated on the amount of Rs.58,443/­ per sq. mtr. from 06.10.1997 to 31.03.2000 in view of the judgment in the case of Rameshwar Solanki (Supra), it would come to Rs.75,878/­ per sq. mtr.

41 The counsel for the petitioners has further argued that the property in question is at prime location and fully developed, therefore, no deduction upon the enhancement in compensation 48 can be made. In this regard, the counsel for the petitioners has relied upon the judgment dt. 18.09.1991 passed by the Hon'ble Supreme Court of India in Civil Appeals Nos.1221 and 1222 of 1977 reported as Bhagwathula Samanna & Ors. Vs Special Tahsildar & Land Acquisition Officer, Visakhapatnam Municipality AIR 1992 SC 2298, it was held that deduction in land value is not warranted when it is already developed and has roads, drainage, electricity, communications in vicinity. In this context, I would 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%. However, even otherwise, if the maximum deduction @ 25% upon the aforesaid rate of Rs.75,878/­ is allowed, it would come to Rs.56,908/­ per sq. mtr. as on 31.03.2000. Therefore, considering all the facts & circumstances, evidence led by the parties and also relying upon the judgments of the Hon'ble High Court and the Hon'ble Supreme Court of India, I have no hesitation to hold that the fair market value of the property in question was Rs.56,908/­ per sq. mtr. as on 31.03.2000.

42 The counsel for the petitioners has claimed interest on market price of the land including solatium u/sec. 28 & 34 of the LA 49 Act, in this regard, the counsel for the petitioners has relied upon the judgment dt. 19.09.2001 passed by the Hon'ble Supreme Court of India in Civil Appeal Nos.6271 with 5272 to 6274 of 1998 & 1032, 1185 to 1193 & 2705 of 1999 & 2437 to 2437 to 2445 of 2000 reported as Sunder Vs Union of India AIR 2001 SC 3516, it was held that compensation awarded in land acquisition cases means compensation vis­a­vis liability to pay interest. Solatium paid on account of compulsory acquisition under Section 23 (2) forms part of compensation awarded. State is liable to pay interest @ 9% on solatium. In view of the aforesaid judgment of the Hon'ble Apex Court, the petitioners is also entitled to the interest and solatium U/sec. 28 & 34 of the LA Act. The petitioners have not led any evidence for the other claims as averred in the reference petition, therefore, the petitioners are not entitled for the said claim. This issue is answered accordingly.

RELIEF 43 In view of my findings on the above issues, the market value of the land of the petitioners situate at plot no.2, Block­125 also known as 8, Jantar Mantar, New Delhi acquired vide the notification dt. 31.03.2000 U/sec. 4 of the LA Act is fixed @ Rs.56,908/­ per sq. mtr. The petitioners are entitled to enhancement in compensation as per their shares according to the details mentioned in the statement u/sec.19 of the LA Act. Besides it, the petitioners shall also be entitled to get solatium U/s 23 (2) of 50 the LA Act @ 30% on the enhanced amount of compensation and interest U/s 28 of the 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 Supreme Court reported as 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 according to their shares 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 05.07.2008                                               ADDL. DISTRICT JUDGE (LAC)
                                                                                 DELHI
                                         51


                                                             LAC No.  375/1/06

05.07.2008 

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 according to their shares 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/05.07.2008
                                   52


                                                   LAC No.  375/1/06

04.07.2008 

Present­      None

Order is not ready. Put up for orders on 05.07.2008.

ADJ/LAC/DELHI/04.07.2008