Delhi District Court
Smt. Kamlesh Goel vs Govt. Of Nct Of Delhi on 12 March, 2012
LAC No. 29/11/09
IN THE COURT OF MS. MAMTA TAYAL: ADJ:
SOUTH WEST: NEW DELHI.
LAC No. 29/11/09
In the matter of :- Award - 03/07-08
Village - Najafgarh
Smt. Kamlesh Goel
W/o Shri Har Saroop Goel
R/o 3/5 Jaidev Park,
New Delhi -110026
...Petitioner
vs.
1. Govt. of NCT of Delhi
To be served through
Land Acquisition Collector ( South-West),
Delhi.
2. Delhi Jal Board
Varunalya Phase-I, Jhandewalan,
New Delhi.
3. Delhi Development Authority.
Through Vice Chairman,
Vikas Sadan, INA, New Delhi. .. Respondents
Filed on :- 26.03.2009
Reserved on :- 27.02.2012
Decided on :- 12.03.2012
LAC No. 29/11/09 Page 1/25 DOO 12.03.2012
LAC No. 29/11/09
JUDGMENT
1. This reference under Section 18 of L. A. Act 1894 ( herein after referred to as the Act) has been received from Land Acquisition Collector, District South-West.
2. Vide notification No. F. 10 (49)/02/L&B/LA/8491 dated 29.08.2006, passed under Section 4 of the Act, Notification No. F. 10 (49)/02/L&B/LA/10984 dated 12.10.06 passed under Section 17 (1) of the Act and Notification No. F. 10 (49)/02/L&B/LA/10983 dated 12.10.2006 passed under Section 6 of the Act, the land parcel measuring 52 Bigha 13 Biswa forming part of village Najafgarh was acquired by Delhi Govt. vide Award No. 3/2007-08/South-West District, dated 20.08.2007, for construction of water treatment Plant, Dwarka.
3. The market value of the land in question was determined by the Collector with reference to the date of Notification under Section 4 of the Act i.e 29.08.2006, taking the indicative price fixed by Govt. of NCT of Delhi for agricultural land in Delhi as Rs. 17,58,400/- (Rs. Seventeen lakh fifty eight thousand LAC No. 29/11/09 Page 2/25 DOO 12.03.2012 LAC No. 29/11/09 four hundred only) per acre vide letter No. F.9 (20)/80/L&B/LA/6720 dated 30.08.2005.
4. The petitioner, Smt. Kamlesh Goel being owner of land ad-measuring 4 Bigha 16 Biswa, part of Khasra No. 41/20, acquired vide the said award applied to the Collector under Section 18 of the Act detailing her grievances against the award, resulting into a reference to the court as aforesaid.
5. In her statement of claim, Smt. Kamlesh Goel averred that the compensation assessed by Land Acquisition Collector on the basis of rates indicated by Govt. way back in August 2005 is wholly insufficient and unreasonably low as it does not represent the true market value of the land at the time of notification. The land is surrounded by well developed Industrial, Commercial and Residential areas having all basic amenities.
Metro Rail as well as Dwarka sub city are located nearby. Even KMP Expressway is coming up touching the claimant's land. All these material facts were completely ignored by LAC before arriving at a conclusion. In fact, Delhi Govt itself has enhanced the minimum circle rate to Rs. 75 lakhs per acre in the year 2007 LAC No. 29/11/09 Page 3/25 DOO 12.03.2012 LAC No. 29/11/09 reflecting that the value fixed in 2005 was no longer indicative of correct value of land in the area. Though the land was acquired by invoking Section 17 of the Act pertaining to urgent requirement but no work was carried out on the land for several months suggesting that the land was acquired in haste just to avoid payment of enhanced market value. It was further stated that the claimant had constructed a house and a tube well having electricity connection at the site. There were several fully grown timber trees standing at the spot and no compensation in lieu thereof was paid to the claimants. It was prayed by the claimant that she be awarded compensation @ Rs. 12,000/- per sq. yards along with other consequent benefits as detailed in the petition. She averred that in the alternative the compensation be paid as per the circle rates fixed by Delhi Govt w.e.f 18.07.2007. Lastly claimant relied upon a sale deed dated 02.08.2006 pertaining to a plot of land measuring 3 Bigha 2 Biswa in the adjoining village of dichaunkalan whereby the land was sold @ Rs. 56.50 lakhs per acre and claimed that compensation ought to be awarded atleast at the said rate.
6. The claim was contested by Union of India as well LAC No. 29/11/09 Page 4/25 DOO 12.03.2012 LAC No. 29/11/09 as DDA by filing their respective written statements. Both the respondents pleaded that the compensation was rightly assessed by the Collector and no enhancement is called for.
7. On the pleadings of the parties following issues were framed vide order dated 31.05.2010:-
1. Whether the DLR Act was applicable to the land in question at the time of notification? OPD.
2. Whether the plaintiff is entitled to the enhancement of compensation as claimed? OPP
3. Relief.
8. Parties were called upon to adduce their evidence in support of their contentions. Sh. Prem Chand, brother in law of the petitioner filed his affidavit as CW-1. UDC from the office of Sub-
Registrar-IX, Kapashera was examined as CW-2 who proved the copy of sale deed dated 02.08.2006 registered at Sl. No. 10192, book no. 1, volume no. 3031 at pages 64 to 79 as Ex.CW1/2.
Head clerk, Revenue Department, Delhi proved the notification pertaining to circle rates of land and immovable properties in Delhi as Ex.CW3/A. Naib Tehsildar, L & B Department, Delhi proved LAC No. 29/11/09 Page 5/25 DOO 12.03.2012 LAC No. 29/11/09 the copies of Notifications from 03.05.90 to 24.01.2008 fixing the indicative price of agricultural land in Delhi as Ex.CW4/A to Ex.CW4/H. CW-5 is Head Clerk, Property Tax Department, MCD, New Delhi. He proved the Property Tax guide book as Ex.CW5/A. The next witness examined on behalf of petitioner is Kanungo from office of LAC who testified that no claim petition was filed by the petitioner before LAC. The clerk from office of Sub-Registrar-IX, Kapashera was examined as CW-7 who proved the two sale deeds, both dated 21.07.2006 registered at Sl. No. 9657 and 9656 of book No. 1, Volume No. 3006 at pages 15 to 39 and 1 to 14 as Ex.CW7/A and Ex.CW7/B respectively. The last witness summoned by the petitioner is Sarjeet Singh, Patwari from Tehsil Najafgarh, New Delhi who proved the Aksizra of village dichaunkalan and Najafgarh as Ex.CW8/1 and Ex.CW8/2 respectively and deposed that distant between khasra No. 24/6 of village Dhichaukala and land in question may be around 4-5 kilometer. Village Najafgarh is urbanized while village Dhichau Kalan is not. DMRC depot at Masoodabad is about 1 Kilometer away from the land of claimant. He could not say whether LAC No. 29/11/09 Page 6/25 DOO 12.03.2012 LAC No. 29/11/09 proposed Express way adjoins the land under consideration or not and whether the said land was surround by developed colonies.
He further stated that land in question is at a distance of 1.5 Km to 2 Km from Dwarka Sub city. In cross-examination he replied that there is Najafgarh drain between Dwarka Sub city and the land of petitioner. He accepted that land adjoining Najafgarh drain is low lying area called as Najafgarh Jheel and it extends for 3-4 Km.
There is village Nagli Sakrawati between Najafgarh Jheel and the land in question.
9. After petitioner's evidence was closed, Sh. S.S. Dalal, counsel for Union of India tendered on behalf of Union of India the award Ex.R-1 towards its evidence. No evidence was adduced by DDA. Hence, the case was posted for final arguments.
Written arguments have been filed on behalf of petitioner while oral submissions have been made on behalf of Union of India. None came forward on behalf of DDA to address any arguments.
10. I have perused the entire records in the light of rival submissions of both the sides. My findings in the above issues are as follows:
LAC No. 29/11/09 Page 7/25 DOO 12.03.2012 LAC No. 29/11/09 ISSUE No. 1.
The onus of proving this issue was on the respondents to show how the applicability of the Delhi Land Reforms Act had adversely effected the market value of the land which was acquired for the planned development of Delhi. In the absence of any material on record, there is no reason to hold that the mere applicability of the Delhi Land Reforms Act reduced the market value of the land in question. This issue is, therefore, answered against the respondents and in favour of the claimants. ISSUE NO. 2
The main question in this reference is whether the collector has determined the market value of the land in question rightly or the petitioner is entitled to further enhancement in the market value of the land in question.
It is now well settled principle of law that while determining the compensation under Section 23(1), the court should sit in the arm chair of a prudent willing purchaser in the open market and see whether he would be willing to offer the same price as is proposed to be fixed by the Land Acquisition Officer as market LAC No. 29/11/09 Page 8/25 DOO 12.03.2012 LAC No. 29/11/09 value for the same or similar lands possessed of all the advantageous features. This is the test which is to be kept in mind by the court while analyzing the evidence and reference court has to answer affirmatively taking into consideration all the relevant factors.
11. The petitioner in support of her claim has chiefly relied upon following factors:-
1. Minimum price of agricultural land as fixed by Delhi Government w.e.f.
19.12.07.
2. Circle rate of the properties announced by the Government w.e.f. 18.07.07.
3. Sale transaction of village dichaunkala.
4. The land being surrounded by well developed colony and lying close to metro rail and KMP Expressway.
5. Damages suffered by petitioner on account of severage of her land.
6. Loss or profit being earned by the petitioner from the acquired land.
7. Compensation in respect of house, trees etc. standing on the said land.
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12. Minimum price of agricultural land as fixed by Delhi Government w.e.f. 19.12.07. - Admittedly the notification under Section 4 of Act in the present case was issued on 29.08.06. Hence the market value of the land was to be fixed with reference to the notification dated 29.08.06 only. The indicative price of agricultural land in Delhi as fixed by Govt. of Delhi as on 29.08.06 was Rs. 1758400/- per acre, which was taken into account by the collector for determination of the market value.
Obviously in 2006 the collector could not have relied upon rates which were fixed by the Government after about 1½ years. Hence this plea of the petitioner is liable to be rejected.
13. Circle Rate:- Petitioner has contended that the circle rate of the property in Delhi as announced by Government to be effective from 18.07.07 ought to have been taken as basis for determining the market value of land in question.
Hon'ble Supreme Court in the case of Lal Chand Vs. Union of India and Anr. 163 (2209) Delhi Law Times 299 (SC) has dealt with the question of relevance of schedule of market rates with reference to market value of agricultural land in LAC No. 29/11/09 Page 10/25 DOO 12.03.2012 LAC No. 29/11/09 Delhi in following terms:-
(i) The appellant relied upon the notification dated 21.01.1981 issued by the Land Division of Government of India, Ministry of Works and Housing, notifying the Schedule of Market Rates of land in different parts of Delhi and various outlying area- showing the minimum rates Rs. 400/- per sq. yard for residential and Rs. 800/- sq. yard for non-residential plots.
The question is whether the same could be relied upon for determination of market value in regard to land acquisition. When the matter came to before this Court in the earlier round, the Counsel for the appellant had conceded that such rates could not form the basis for determining the market value of the acquired lands. In spite of it, the learned Counsel for appellant submitted before us that though the said circle rates cannot be the basis for determining the market value, it may be taken note of as one of the relevant pieces of evidence indicative of the market value. There is some confusion as to whether such basic rates/ guideline value/ minimum registration value rates could form the basis for LAC No. 29/11/09 Page 11/25 DOO 12.03.2012 LAC No. 29/11/09 determining the market value.
(ii). This Court in Jawajee Nagnatham Vs. Revenue Divisional Officer, 1994 (4) SCC 595, and several cases following it, including Land Acquisition Officer, Eluru Vs. Jasti Rohini, 1995 (1) SCC 717; U.P Jal Nigam, Lucknow through its Chairman Vs. M/s Kalra Properties (P) Ltd. Lucknow, 1996(3) SCC 124 and Krishi Utpadan Mandi Samiti Sahaswan Vs. Bipin Kumar, I (2004) SLT 422=2004(2) SCC 283, held that market value under Section 23 of LA Act cannot be fixed on the basis of the rates mentioned in the Basic Valuation Registers maintained for the purpose of detection of undervaluation and collection of proper stamp duty.
(iii). In Jawajee Nagnatham, the land owners had appealed to the Andhra Pradesh High Court against the order of Reference Court, claiming increase, relying upon the market value entered in the Basic Valuation Register maintained by the Revenue Authorities under the Stamp Act. The High Court rejected the claim based on the Basic Valuation Register, as such Register had no evidentiary value or LAC No. 29/11/09 Page 12/25 DOO 12.03.2012 LAC No. 29/11/09 statutory basis. In appeals by the land owners, this Court held that the Basic Valuation Register was maintained for the purpose of collecting stamp duty under Section 47A of the Indian Stamp Act, 1899 ( as amended in Andhra Pradesh); that Section 47A conferred no express power to the Government to determine the market value of the lands prevailing in a particular area, village, block, district or region and to maintain Basic Valuation Register for levy of stamp duty in regard to instruments presented for registration; that there was no other statutory provision or rule having statutory force providing for maintaining such valuation register, and therefore, such register prepared and maintained for the purpose of collecting stamp duty had no statutory base or force and cannot form the basis to determine the market value of any acquired land under Section 23 of the LA Act. Jasti Rohini also arose from Andhra Pradesh and followed Jawajee Nagantham and held that the Basic Valuation Register had no statutory basis.
(iv). The case of U.P Jal Nigam arose from LAC No. 29/11/09 Page 13/25 DOO 12.03.2012 LAC No. 29/11/09 Uttar Pradesh. In that case, the land owner filed a writ petition seeking a direction to U.P Jal Nigam to pay compensation in regard to lands acquired on the basis of market value assessed by the Collector, Lucknow. The High Court allowed the petition and directed the U.P. Jal Nigam to pay compensation at the rate determined by the Collector, on the basis of the basic valuation circulars issued for purposes of stamp duty. This Court reversed the decision of the High Court following its earlier decision in Jawajee Naganatham and held that the Collector committed an error in determining the market value on the basis of Basic Value Circulars. Jawajee Naganatham was again followed in Bipin Kumar, which is another case from Uttar Pradesh.
(v). All the four decisions rejected the value entered in the Basic Valuation Registers, on the ground that they had no statutory basis having regard to the provisions of stamp law applicable in the respective States ( Andhra Pradesh and Uttar Pradesh) and cannot be the basis for determination of market value LAC No. 29/11/09 Page 14/25 DOO 12.03.2012 LAC No. 29/11/09 under Section 23 of LA Act.
(vi). There are also another set of decisions considering such circle rates could be considered as prima facie basis, for purposes of ascertaining the market value and determining whether there was any undervaluation of the instrument for purposes of stamp duty, which is a revenue collection exercise. We may refer to one of those cases, that is Ramesh Chand Bansal vs. District Magistrate/ Collector, Ghaziabad, V (1999) SLT 570=III (1999) CLT 183 (SC)=1999 (5) SCC 62, wherein this Court held:
"Reading Section 47-A with the aforesaid Rule 340-A it is clear that the circle rate fixed by the Collector is not final but is only a prima facie determination of rate of an area concerned only to give guidance to the Registering Authority to test prima facie whether the instrument has properly described the value of the property. The circle rate under this Rule is neither final for the authority nor to one subjected to LAC No. 29/11/09 Page 15/25 DOO 12.03.2012 LAC No. 29/11/09 pay the stamp duty. So far Sub-sections (1) and (2) it is very limited in its application as it only directs the Registering Authority to refer to the Collector for determination in case property is undervalued in such instrument. The circle rate does not take away the right of such person to show that the property in question is correctly valued as he gets an opportunity in case of undervaluation to prove it before the Collector after reference is made".
(vii). In R. Sai Bharathi V. J. Jayalalitha, VII (2003) SLT 274 = 2004 (2) SCC 9, while examining the issue in the context of a case relating to disproportionate assets, this Court held:
"The guideline value is a rate fixed by authorities under the Stamp Act for purposes of determining the true market value of the property disclosed in an instrument requiring payment of stamp duty. Thus the guideline value fixed is not final but only a prima facie rate prevailing in an area. It is open to the LAC No. 29/11/09 Page 16/25 DOO 12.03.2012 LAC No. 29/11/09 registering authority as well as the person seeking registration to prove the actual market value of property. The authorities cannot regard the guideline valuation as the last word on the subject of market value. XXXX This scheme of the enactment and the Rules contemplate that guideline value will only afford a prima facie basis to ascertain the true or correct market value. Undue emphasis on the guideline value without reference to the setting in which it is to be viewed will obscure the issue for consideration. It is clear, therefore, that guideline value is not sacrosanct as urged on behalf of the appellants, but only a factor to be taken note of, if at all available in respect of an area in which the property transferred lies."
(viii). It should however be noted that as contrasted from the assessment of market value contained in non-statutory Basic Value Registers, the position may be different, where the guideline market values are determined by LAC No. 29/11/09 Page 17/25 DOO 12.03.2012 LAC No. 29/11/09 Expert Committees constituted under the State Stamp Law, by following the detailed procedure laid down under the relevant rules, and are published in the State Gazette. Such State Stamp Acts and the Rules thereunder, provide for scientific and methodical assessment of market value in different areas by Expert Committees. These statutes provide that such committees will be constituted with officers from the Department of Revenue, Public Works, Survey and Settlement, Local authority and an expert in the field of valuation of properties, with the sub-registrar of the Sub-registration District as the Member Secretary. They also provide for different methods of valuation for lands, plots, houses and other buildings. They require determination of the market value of agricultural lands by classifying them with reference to soil, rate of revenue assessment, value of lands in the vicinity and locality, nature of crop yield for specified number of years, and situation ( with reference to roads, market, etc.). the rates assessed by the committee are required to be published LAC No. 29/11/09 Page 18/25 DOO 12.03.2012 LAC No. 29/11/09 inviting objections/ suggestions, the final rates are published in the Gazettee. Such published rates are revised and updated periodically. When the guideline market values, that is, minimum rates for registration of properties, are so evaluated and determined by expert committees as per statutory procedure, there is no reason why such rates should not be a relevant piece of evidence for determination of market value.
One of the recognized methods for
determination of market value is with
reference to opinion of experts. The
estimation of market value by such statutorily constituted expert committees, as expert evidence can therefor form the basis for determining the market value in land acquisition cases, as a relevant piece of evidence. It will be however open to either part to place evidence to dislodge the presumption that may flow from such guideline market value. We however hasten to add that the guideline market value can be a relevant piece of evidence only if they are assessed by statutorily appointed Expert Committees, in LAC No. 29/11/09 Page 19/25 DOO 12.03.2012 LAC No. 29/11/09 accordance with the prescribed assessment procedure 9either street-wise, or road-wise, or area-wise, or village-wise) and finalized after inviting objections and published in the Gazette. Be that as it may. We have referred to this aspect only to show that there are different categories of Basic Valuation Registers in different states and what is stated with reference to the stamp law in Andhra Pradesh or Uttar Pradesh, may not apply with reference to other States where State Stamp laws have prescribed the procedure for determination of market value,. Referred to above.
(ix). In this case, there is nothing to show the circle rates have been determined by any statutorily appointed committee by adopting scientific basis. Hence, the principle in Jawajee Naganatham will apply and they will not be of any assistance for determining the market value. Further, they do not purport to be the market value for lands in rural areas on the outskirts of Delhi, nor the market values relating to Rithala Village. The circle rates relate to urban/ city areas in Delhi and are LAC No. 29/11/09 Page 20/25 DOO 12.03.2012 LAC No. 29/11/09 wholly irrelevant.
Resultantly in consonance with dictum of Hon'ble Apex Court, the circle rates cannot be taken as basis of market value of the agricultural land in the instant case as well.
14. Sale transaction of village Dichaunkala:-
Petitioner has relied upon the sale deed of adjoining village of dichaunkala to plead that it was reflective of actual market value rate of agricultural land in the area prevailing at the relevant time. To buttress his contention that village dichaunkala is just adjoining village Najafgarh, petitioner got proved on record, through PW8, Aksh sizra of village Najafgarh and dichaunkalan. No doubt the said villages are adjoining, however it is settled law that in case the sale exempler of the village where acquisition had taken place is available, it is not advisable to refer to sale deeds of neighbouring villages. The most striking factor in the present case is that not only the sale deed of same village but actually the sale deed of same land, that too, of just one month prior to the date of notification under Section 4 has been proved on record by witness of the petitioner herself. Admittedly the petitioner had purchased LAC No. 29/11/09 Page 21/25 DOO 12.03.2012 LAC No. 29/11/09 the land in question vide registered sale deed dated 21.07.2006. The consideration paid by the petitioner for the purchase of the land under reference is exactly the same which was the minimum land rate for agricultural land fixed by Delhi Government vide its letter dated 30.08.05 i.e. Rs. 1758400/- per acre. The petitioner herself did not step into witness box in the present case. On her behalf, her brother in law Shri Prem Chand appeared as CW1 claiming to be brother of husband of petitioner. He also filed on record his affidavit towards evidence. Neither in his affidavit nor in his statement in the court, it was even remotely averred by CW1 that in the sale deeds EX.CW7/A and Ex. CW7/B, vide which the petitioner had purchased the land in question, the correct market value was not mentioned or that the sale deeds were under valued for any reason whatsoever. No evidence has been brought on record by or on behalf of petitioner to establish that the actual consideration paid by her for the said land was more than the amount reflected in the sale deeds. It is not the case of the petitioner that the said transaction was sham or bogus. It has been reiterated by Hon'ble Superior courts in a catena of judgments that LAC No. 29/11/09 Page 22/25 DOO 12.03.2012 LAC No. 29/11/09 the true market value of comparable land is the price paid by the willing purchaser to the willing seller and the best evidence is the comparable sale instances. Undisputedly the sale exemplars EX.CW7/A and EX. CW7/B pertaining to same land are comparable instances for determination of the market value of the land in question.
15. The land having potential and utility on account of its being surrounded by well developed colony and lying close to metro road and KMP Express way:-
Petitioner has stated that her land is surrounded by land where DDA has developed a colony named Dwarka and this fact should have been noted by LAC. However except bald statement of CW1, the petitioner has brought no evidence, leave aside documentary evidence, suggesting that the acquired land was suitable for development or had any benefit or advantage of facilities in the surrounding areas. It is well settled law that the agricultural land cannot be compared with the developed land for determining its market value, though both may be adjoining or situated at a little distance. For determining the market value, it is LAC No. 29/11/09 Page 23/25 DOO 12.03.2012 LAC No. 29/11/09 trite that the nature of land plays an important role [ Refer Raj Devi Vs. Union of India 145 (2007) DLT 438(DB)].
16. As regards the pleas of trees standing on the land, the damage if any caused to the petitioner by severage of land and loss of profit earned from the land, again not even an iota of evidence has been adduced by the petitioner to substantiate her contentions in that regard. There is nothing to establish that petitioner had got any land building plans sanctioned from the concerned authority or raised any authorized construction there. In absence of the same, obviously no compensation in that regard can be allowed.
17. For the foregoing reasons, I am satisfied that no enhancement in the instant case can be allowed. The petitioner is thus entitled to receive the compensation for the acquired land at the rate as determined by LAC along with the statutory benefits as per law. Petitioner is also entitled to benefits of Sunder Vs. Union of India, as per law. Reference stands answered in these terms.
18. Copy of the order be sent to LAC (SW) for LAC No. 29/11/09 Page 24/25 DOO 12.03.2012 LAC No. 29/11/09 necessary information and compliance. File be consigned to record room.
Announced in the open Court on the day of 12.03.2012.
(MAMTA TAYAL) ADDL. DISTRICT JUDGE DWARKA COURTS: NEW DELHI LAC No. 29/11/09 Page 25/25 DOO 12.03.2012