Delhi District Court
Sh. Baljit Singh S/O Late Sh.Ram Lal vs Union Of India on 30 April, 2008
1
IN THE COURT OF SHRI YASHWANT KUMAR :
ADDITIONAL DISTRICT JUDGE (LAC) : DELHI
LAC No. : 64/1/08 AWARD No : 29/2003-2004
VILLAGE : Shahpur Garhi, Delhi
In the matter of :
Sh. Baljit Singh S/o late Sh.Ram Lal
R/o VPO- Shahpur Garhi,
Delhi - 110040
(Through Ld. Counsel Sh. Hirendra Kumar)
...Petitioner
Versus
1 Union of India,
through Secretary, Land & Building,
Vikas Bhawan, ITO, New Delhi
2 Delhi Development Authority,
through its Vice Chairman,
Vikas Sadan, INA Market, New Delhi
(Through Ld. Counsel Sh.Sachin Nawani & Ms. Renu Gutpa)
...Respondents
Reference received on : 05.04.2008
Award reserved on : 30.04.2008
Award announced on : 30.04.2008
AWARD
REFERENCE U/S 18 OF THE LAND ACQUISITION ACT
1 Vide notification No.F.10(32)/96/L&B/LA/2736 dt. 16.05.2002
U/s 4 of the Land Acquisition Act (hereinafter referred to as the LA Act) followed by declaration vide notification No.F.10(32)/96/L&B/ LA/1299 dated 30.04.2003 U/sec. 6 of the LA Act, the land of the petitioner situate in the revenue estate of village Shahpur Garhi, Delhi was acquired by the Govt. for freight Complex Narela under 2 PDD. The Land Acquisition Collector (hereinafter referred to as LAC), after completing all the requirements as provided under the Act, announced the award bearing No.29/2003-04 and awarded the compensation @ Rs.15.70 lacs per acre or Rs.16,354.16 per biswas besides statutory benefits.
2 Feeling dissatisfied with the quantum of compensation awarded by the LAC, the petitioner 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 petitioner has sought the enhancement of compensation on the grounds that the petitioner is the owner/ bhoomidhar and in cultivatory possession of 1/4th share of the land under acquisition out of khasra nos.16 (4-16), 17/1 (2-
16), 17/2 (2-00), 24 (4-16), 25 (4-16) & 26 (0-07) total land area measuring 19 bighas 11 biswas situate in the revenue estate of village Shahpur Garhi, Delhi which has been acquired vide the award in question. The LAC has not adopted the correct method of valuation. The market value of the acquired land cannot be fixed on the basis of any such policy of the Govt. Therefore, the market value of the acquired land is only to be determined by keeping in view the marketability and potentiality of the land and also U/sec. 23 & 24 of the LA Act. Further, the LAC should have taken into consideration the future potentiality of the land and should have determined the 3 market value by keeping in view the market value as fixed by the Govt. for allotment of residential plots/ flats. In this context, the petitioner has relied upon the judgment passed by the Hon'ble High Court of Delhi reported as AIR 1985 Delhi 298. Relevant part of the said judgment of the Hon'ble High Court has been mentioned for this reference petition which is as under :
''That prospects and possibilities of future development, i.e. potentiality ought to be taken into account in assessing the market value. Potentiality means such used to which the land to be put in the near reasonable future. It is the duty of the valuer to take into consideration every intrinsic quality and intrinsic circumstances which tends to push the value either up or down...''
4 It is further stated that all the amenities of life, like water, electricity, metalled roads, general market, post office, banking facility, hospitals, higher secondary schools, college, fire station, telephone exchange, Narela Railway station, police station, Narela Anaj Mandi adjacent to the Narela Township which was urbanized in the year 1922 and having commercial as well as industrial area is very near, many project were available to the land of the petitioner much prior to the date of notification u/sec. 4 of the act but the LAC did not consider this fact while making the said award. It is also stated that many palatial farm houses in the close vicinity of the revenue estate of the village Holambe Kalan, Alipur, Rajapur Kalan, Kureni, etc. it is open secret that the cost of the land of such farm houses is not less than Rs.15,000/- per sq. yard which also increases 4 the marketable values of the land of the petitioner and the land of the petitioner is situated on Narela - Alipur road with constructed farm house but the LAC has not assessed the correct value of the structure along with standing tree. On these grounds among others, the petitioner has filed this reference petition claiming Rs.15,000/- per sq. yard. The petitioner has also claimed Rs.1,00,000/- for severing charges and Rs.1,00,000/- for damage besides statutory benefits. The petitioner has also filed an application U/sec. 5 of the Limitation Act for condonation of delay in filing the reference petition u/sec.18 of the LA Act on the ground that the department could not provide any information by any summon to the petitioner, however, the petitioner received the information about announcement of the award by the LAC from the villagers on 15.04.2004 and thereafter the reference petition has immediately been filed before the LAC.
5 The UOI, in its written statement, has raised the main objections on the grounds among others that land has been acquired for the public porpose namely for establishing the Narela Freight Complex under the Planned Development of Delhi. Notices u/s 9 & 10 were issued to the land owners/ interested persons inviting claims of the land. Pursuant to the notices, claims were filed by the affected persons claiming different value of the land. After considering all the claims of the land owners/ interested parties, the LAC made and pronounced the award in question u/sec. 11 of the 5 LA Act. The claim of the petitioner with respect to measurements, apportionment and compensation of the land or structure has been admitted by UOI to the extent of section 19 statement of the LA Act and the award no.29/2003-04. The compensation assessed by the LAC is sufficient and reasonable and it reflects the true market value prevailing at the time of the notification u/s 4 of the LA Act. Various factors were taken into account while assessing the market value. The petitioner is claiming excessive and exorbitant market value of the land and structures. DLR Act is applicable to the land in dispute. The petitioner is not entitled for compensation in respect of any construction or structure which was raised without the sanction of law. However, it is stated that at the time of issuance of notification u/sec. 4 of the Act, there were no structures, tree, well on the land in question except mentioned in the award and the statement u/sec. 19 of the LA Act in question. The land in question is not surrounded by any developed or un-developed colony and can be used for agricultural purposes only. It is further stated that the LAC in order to assess the fair market value of the land adopted the indicative price fixed by the Govt. of NCT of Delhi for the agricultural land in Delhi as Rs.15,70,000/- per acre for the year 2001-2002 conveyed by the order No.F9(20)/80/L&B/LA/6696 dt. 09.08.2001 which are applicable w.e.f. 01.04.2001. The LAC adopted the indicative price fixed by the Govt. of NCT of Delhi as 15,70,000/- per acre for the land acquired. The market value of the land was assessed as per the rate prevailing during the corresponding period of land besides 6 other statutory benefits. The LAC rightly assessed the market value of the land keeping in view all the aspects enumerated u/s 23 & 24 of the LA Act. Thus, the LAC assessed the fair market value of the land after considering the level of development, locality and situation of the area of the land in question.
6 Written statement has not been filed by DDA since this reference court has already decided the notification dt. 16.05.2002 pertaining to village Shahpur Garhi, Delhi vide award no.29/2003- 04, therefore, the counsel for DDA has adopted the same written statement filed by UOI.
7 On the pleadings of the parties, the following issues were framed by this court on 29.04.2008 which are as under:
1 What was the market value of the land in question at the time of issuance of notification u/s 4 of the LA Act? Onus on parties.
2 Whether the petitioner is entitled to enhancement in compensation, if so, to what amount? OPP 3 Relief
8 The counsel for the petitioner, in support of his case, has tendered in evidence the photocopy of the certified copy of the judgment dt. 31.10.2007 by this reference court in case titled Sh.Mahavir Vs UOI & DDA in LAC No.426/1/06 as Mark-A. Whereas, the counsel for the respondents have tendered in evidence 7 the copy of the award no.29/2003-2004 pertaining to the village Shahpur Garhi, Delhi as Ex.R-1.
9 I have heard the Ld. Counsel for the parties and have perused the entire records. My issue-wise findings are as under : ISSUE NO. 1 & 2 10 Both the issues are inter-connected and I shall decide both the issues together. Before deciding the issue nos. 1 & 2, let us examine whether there is any dispute of the land in question with any other person. From the entire records, it reveals that no such evidence has been filed on behalf of the respondents on record to prove that the land is disputed with any other person. Even otherwise, the statement u/sec. 19 of the LA Act forwarded by the concerned LAC also reveals that the amount of the compensation has been assessed in the name of the petitioner and paid to him on 05.08.2004 against his 1/4th share as mentioned in the statement u/sec. 19 of the LA Act. Therefore, I hold that there is no dispute for the land in question and the petitioner having the right, title and interest in the land in dispute is entitled to enhancement in compensation, if awarded by the reference court. Further, the award in question was announced on 15.03.2004 and the reference petition was filed before the LAC vide no.5260/NT/LAC dt.20.07.2004. The respondents have not led any evidence to prove that the reference petition has been filed beyond the period of 8 limitation. Thus, I also hold that in view of the reasons stated in the reference petition and the application u/sec. 5 of the Limitation Act, this reference petition has been filed within a period of limitation. 11 Now, I shall take up the issue nos.1 & 2. The onus to prove these issues is upon the petitioner 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'' 9 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 10 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 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.''
12 In the award no.29/2003-2004/ Ex.R-1, the LAC has specifically stated that the land under acquisition is agricultural land and is being used for agriculture purposes. The interested persons have generally claimed exorbitant prices of land but they have not filed any documentary evidence in support of their claim and the claims filed by the interested persons could not form the basis of determination of market value. However, the office of the LAC was in possession of a sale deed executed on 04.12.2001 in respect of the land measuring 8 bighas 10.1/2 biswas situated in village Narela for a sum of Rs.22,88,390.00 i.e. 12,89,000.00 (approx.) per acre, therefore, the LAC observed that the market value of the land has not increased but has either remained same since the financial year 2001 or has decreased marginally. Thus, the LAC, in view of the absence of any documentary evidence on behalf of the interested persons, adopted a policy announcement which came into effect from the financial year 2001-2002, the Govt. of NCT of Delhi fixed the indicative price of agricultural land @ Rs.15.70 lacs per acre for the acquisition of agricultural land vide their order 11 No.F.9(20)/80/L&B/ LA/6696 dt.09.08.2001 which are applicable w.e.f. 01.04.2001. Therefore, the LAC has found Rs.15.70 lacs per acre to be the most reasonable price as on 16.05.2002. The LAC, therefore, determined the market value of the land under acquisition @ 15.70 lacs per acre.
13 Now, let us examine whether the land in question, as averred in the reference petition, is very fertile and levelled without any kind of depression or defect and whether all the amenities of life, like water, electricity, metalled roads, general market, post office, banking facility, hospitals, higher secondary schools, college, fire station, telephone exchange, Narela Railway station, police station, Narela Anaj Mandi adjacent to the Narela Township and having commercial as well as industrial area is very near and further many palatial farm houses in the close vicinity of the revenue estate of the village Holambe Kalan, Alipur, Rajapur Kalan, Kureni, etc. In this context, I would place a reliance upon the judgment dt. 03.03.2005 in WP (C ) 76-79/2004 titled Chet Ram Sharma & Ors Vs UOI & Ors, the land situate in village Bahapur, New Delhi was acquired vide the notification dt. 28.11.2002 U/s 4 (1) r/w/sec. 17 (1) (4) of the LA Act, the Hon'ble High Court of Delhi observed that :
''Not much material has been placed before us which could help the court to determine the fair market value of the land in question while the petitioners have placed whole emphasis on the fact that the land sought to be acquired by the respondents vide their notification U/s 4 dt. 28.11.2002 is part of a fully 12 developed commercial area and has great potential and they are entitled to the present market value prevalent in the area at the relevant time.'' The Hon'ble High Court of Delhi in the aforesaid WP ( C) 76- 79/2004 held that :
''Admittedly the area has been developed by the DDA as a commercial area. However, under the lay out plan, the area was marked only for public utility services and thus it cannot get any commercial value.''
14 In the case of Chet Ram (Supra), the claimants claimed that the acquired land is a part of commercial area. The Hon'ble High Court of Delhi referring the judgments of the Hon'ble Supreme Court of India, held that while determining the prospective use of the land or its future potential and development by itself cannot be the only basis for the court to determine the market value of the acquired land and therefore, granting of compensation is a matter of serious consequence and thus cannot be based upon the element of conjuncture. A reliance can also be had upon the judgment reported in the case of M.C.Mehta Vs UOI & Ors AIR 2006 SC 1325, it was held by the Hon'ble Supreme Court of India as under :
Provision for household industries in residential areas does not mean converting residential houses in the commercial shops. It only means permitting activities of household industry in a part of a residential property. It does not mean that residential properties can be used for commercial and trading activities and sale and purchase of goods. Master Plan contemplates shops in District Centres, community 13 Centres, Local Shopping Centres etc. and not in residential areas.
In respect of planning, reference can usefully be made to Section 313 of the DMC Act as well. The said section provides for the requirement of layout plan of the land. It, inter alia, provides that before utilizing, selling or otherwise dealing with any land U/sec. 312, the owner thereof shall send to the Commissioner a written application with a layout plan of the land showing various particulars including the purpose for which the building will be used. For breach of Section 313, action can be taken U/sec. 314. It has rightly not been disputed by any counsel that neither layout plan, nor the building plan, can be sanctioned by MCD except in the manner and for the purpose provided in the Master Plan. If in the master plan, the land use is residential, MCD cannot sanction the plan for any purpose other than residential.
Building Bye-Laws for the Union Territory of Delhi, 1983, in particular Bye-Law Nos. 2.17, defining the expressions 'Conversion' and ''To Erect' which reads as under:
''2.17. Conversion - The change of an occupancy to another occupancy or change in building structure or part thereof resulting into change of space or use requiring additional occupancy certificates''.
The introduction of the ad hoc Registration Scheme would not only regularize the illegalities but further encourage more illegalities to take place by sending a wrong message underlying the press release. This ad hoc scheme has been stayed by this Court.
Mr. Ashwini Kumar, learned Senior Advocate appearing for MCD, also contended that since there is a large scale misuse of residential premises for commercial purposes, it is a physical impossibility to remove the misuser. The contention deserves outright rejection.'' 14
15 It is pertinent to mention here while considering the nature and use of the acquired land, the Hon'ble Supreme Court of India in the case of M.C.Mehta Vs UOI (Supra) has held that the provision for household industries in residential areas does not mean converting residential houses in the commercial shops. It only means permitting activities of household industry in a part of a residential property. It does not mean that residential properties can be used for commercial and trading activities and sale and purchase of goods. It was further held by the Hon'ble Supreme Court of India in the aforesaid case that it has rightly not been disputed by any counsel that neither layout plan, nor the building plan, can be sanctioned by MCD except in the manner and for the purpose provided in the Master Plan. If in the master plan, the land use is residential, MCD cannot sanction the plan for any purpose other than residential. Therefore, misuse of residential premises for commercial purposes has outrightly been rejected by the Hon'ble Supreme Court. Further, adhoc registration schemes have also been stayed by the Hon'ble Supreme Court. The petitioner herein has not been able to prove by the documentary evidence that the acquired land is leveled one and is fit for residential/ commercial, industrial & building purpose and surrounded by already developed industrial area and further in close vicinity of residential area of Rohini. Therefore, I have no hesitation to hold that the case of the petitioner herein on the aspect of use of land is squarely covered as per the 15 aforesaid judgments passed by the Hon'ble Supreme Court of India and the Hon'ble High Court of Delhi. Thus, the petitioner herein is not entitled to the residential or commercial rates of the land in question.
16 The counsel for the petitioner, in support of his evidence for enhancement in compensation of the land in question, has also relied upon the photocopy of the certified of the judgment dt. 31.10.2007 passed by this reference court in LAC No.426/1/06 titled Mahavir Vs UOI & DDA which is Mark-A. In Mark-A, the land situate at village Shahpur Garhi, Delhi was acquired vide the notification dt.16.05.2002 (23.05.2002 typed in Mark-A due to clerical mistake) u/sec. 4 of the LA Act and this court had given thorough consideration to the materials placed on record i.e. the sale deeds relied upon and the evidence led by the parties. However, this reference court, while considering the evidence of the parties, referred the judgment dt.11.05.2006 passed by the Hon'ble DB of the High Court of Delhi in LA Appl. No.866/2005 titled Mahender Singh Vs UOI & Ors. wherein the land situate in the revenue estate of village Bawana, Delhi were acquired vide the notification dt. 15.11.1996 u/s 4 & 17 (i) of the LA Act followed by the declaration u/s 6 of the LA Act on 21.11.1996. The lands were acquired for public purpose namely ''Shifting of Industrial area from City area of Delhi/ New Delhi''. The LAC divided the entire lands into two blocks i.e. A & B and assessed the market value of the land 16 for block-A at Rs.1,86,500/- per bigha and for the land of block-B at Rs.1,61,500/- per bigha. The Hon'ble High Court of Delhi, after considering the materials placed on record and also referring various judgments of the Hon'ble High Courts and the Hon'ble Supreme Court, held as under :
''The judgment under appeal to some extent suffers from factual and errors or law. As a court of appeal, these errors must be corrected. We hold that the claimants are entitled to the following reliefs :
a) The order maintaining the categorisation of the acquired land into groups A and B is set aside. All claimants, whose lands have been acquired vide notification dated 15th November, 1996 in the revenue estate of village Bawana would be entitled to uniform rate of compensation.
b) The claimants would be entitled to increase in the awarded amount of compensation from 1st April, 1996 to 15th November,1996 (the date of notification under section 4 under the Act) @ 11.5% compounded annually on the compensation awarded by the Reference Court/ Collector that would roughly give them total enhanced compensation of Rs.1,99,904.68 p. per bigha.
c) The claimants are entitled to interest on the amount of solatium for the period for which they have not been paid interest in accordance with law.
d) The claimants would be entitled to all the benefits of interest and statutory payments under the provisions of the Act including Section 23 (1-A) of the Act on the enhanced compensation.
e) The claimants would also be entitled to proportionate costs.'' 17 17 In the case of Mahender Singh (Supra), the notification u/s 4 of the LA Act was issued on 15.11.1996 and the appellants therein were held entitled to increase in the awarded amount of compensation from 01.04.1996 to 15.11.1996 @ 11.5% compounded annually on the compensation awarded by the reference court/ collector which roughly gave them total enhanced compensation of Rs.1,99,904.68 p. per bigha. Therefore, my decision is again supported with the aforesaid judgment of the Hon'ble High Court of Delhi in the present reference. The petitioner herein is entitled to increase in the awarded amount of compensation from 01.04.2001 to 16.05.2002 @ 11.5% compounded annually on the compensation awarded by the LAC. The petitioner has not led any evidence in support of his claim for severing charges and for damage as averred in the reference petition, therefore, the petitioner is not entitled for the said claim. These issues are answered accordingly.
RELIEF 18 In view of my findings on the above issues, the petitioner is entitled to increase in the awarded amount of compensation from 01.04.2001 to 16.05.2002 @ 11.5% compounded annually on the compensation awarded by the LAC as per his 1/4th share for the land bearing khasra Nos.16 (4-16), 17/1 (2-16), 17/2 (2-0), 24 (4-16), 25 (4-16) & 26 (0-7) total measuring 19 bighas 11 biswas, situate at Village Shahpur Garhi, Delhi according to the statement U/sec. 19 of the LA Act situate in the revenue estate of village Shahpur Garhi, 18 Delhi which was acquired by the Govt. for freight Complex Narela under PDD vide award no.29/2003-2004 announced on 15.03.2004. Besides it, the petitioner shall also be entitled to all the benefits of interest and statutory payments including Section 23 (1-A) of the LA Act in the enhanced compensation. This reference is answered accordingly.
A copy of this award be sent to the concerned LAC to make the payment of increase in the awarded amount of compensation to the petitioner 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 30.04.2008 ADDL. DISTRICT JUDGE (LAC)
DELHI
19
LAC No. 64/1/08
30.04.2008 (At 04.00 p.m.)
Present- None
Vide separate award dictated and announced in the open court, this reference u/s 18 of the LA Act is answered accordingly.
A copy of this award be sent to the concerned LAC to make the payment of increase in the awarded amount of compensation to the petitioner 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/30.04.2008