Delhi District Court
O.P.Gupta vs . Uoi on 18 April, 2007
-:1:- LAC No. 159/06
O.P.Gupta vs. UOI
IN THE COURT OF A.K.MENDIRATTA, ADDITIONAL
DISTRICT JUDGE : DELHI
LAC No. 159/06
1. Sh.O.P.Gupta S/o Sh. K.D.Gupta
R/o D-38, Kamla Nagar,
Delhi ......... Petitioner
VERSUS
1.Union of India
Through Land Acquisition Collector,
Kalkaji, New Delhi.
2.National Thermal Power Corp.
Through its Chairman
Badarpur, New Delhi. .........Respondents
Village : AALI
Award No. : 4/98-99
Date of notification u/s 4 : 31.10.96
JUDGMENT :
1. Petitioner's land as referred in statement u/s 19 of the Land Acquisition Act (hereinafter referred as the said Act) was acquired for planned development of Delhi, namely for construction of Ash pond by BTPS vide Award no. 4/98-99 by following due procedure as prescribed under the Act. Land was notified under section 4 and 17 of the Act on 31.10.96 which was Contd.....
-:2:- LAC No. 159/06O.P.Gupta vs. UOI followed by a declaration under section 6 of the Act on 26.2.97. After considering the claims filed by the interested persons pursuant to notices issued u/s 9 & 10 of the Act, LAC assessed the market value of the land @ Rs.1,94,088/- per bigha.
For the purpose of assessment of land, claimants relied upon as sale deed, with respect to sale of 1 bigha of land in village Aali for consideration of Rs.4,28,000/- per bigha. However, the same was not considered by the LAC on the ground that it pertained to a small plot of land and there is a certain fall in the prices when the land is taken in bulk. LAC further assessed the value of land relying upon policy of Government of Delhi dated 25.7.97 whereby rate of land was fixed @ Rs.10 lacs per acre w.e.f. 01.4.97. The rates were fixed after granting appreciation @ 11.5% p.a. on the market value of land fixed on 30.5.90 @ Rs. 4.65 lacs per acre as per policy dated 03.05.90.
2. Dis-satisfied by the land rates assessed by the LAC, petitioner preferred a reference petition u/s 18 of the LA Act which was in turn forwarded by the LAC to the Reference Court. for assessment.
Contd.....
-:3:- LAC No. 159/06O.P.Gupta vs. UOI The case of the petitioner is that LAC erred in assessing the value of land as the market value of the land in the vicinity was not less than Rs. 25,000/- per sq.yd. on the date of notification u/s 4. It was also averred that LAC failed to consider that the acquired land is located near developed colonies like Sarita Vihar and constituted the best evidence to assess the market value of land. Compensation was accordingly claimed at enhanced rates.
3. In the W/S, Union of India supported the assessment made by the LAC. It was further submitted that the land is not surrounded by any developed or undeveloped colony and could be used only for agricultural purpose. Further no claim is stated to have been preferred by the petitioner in response to notices issued u/s 9 & 10 of the Act.
Similar stand was adopted by BTPS.
4. On the pleadings of the parties following issues were framed :-
ISSUES:
1. Whether the reference is within limitation ?
Contd.....
-:4:- LAC No. 159/06O.P.Gupta vs. UOI
2. What was the market value of the acquired land on the date of issuance of notification u/s 4 of LA Act ?
3. To what enhancement in compensation, if any, is the petitioner entitled ?
4. Relief.
5. Petitioners in support of his case tendered in evidence photocopy of certified copies of two sale deeds dated 23.2.96 and 28.2.96 pertaining to sale of land in village Ali, copies of judgment pertaining to assessment of land in village Jasola, Bahapur, Tuglakabad and schedule of rates notified by Ministry of Urban Development vide office order no.19/99. Same were exhibited with the consent of parties and are hereinafter detailed as under :-
Mark A is photocopy of certified copy of sale deed dated 23.2.96 executed by Sh. Bishambar Dayal in favour of Sh.Surinder Singh whereby one bigha of land in village Aali was sold for consideration of Rs.4,20,000/-.
Contd.....-:5:- LAC No. 159/06
O.P.Gupta vs. UOI Mark B is photocopy of certified copy of sale deed dated 28.2.96 executed by Sh.Mahender Singh in favour of Sh.Arjun Singh, whereby one bigha of land in village Aali was sold for consideration of Rs. 4,90,000/-.
Mark C1 to C4 are copy of statements of the vendor / vendee involved in sale deeds Mark A and B, recorded in LAC No. 147/94 entitled Hari Chand Vs. UOI and statement of Sh.Ashok Kumar, Halka Patwari recorded therein. The said reference pertains to assessment of land in Award no. 9/94-95 involving date of notification u/s 4 on 16.10.92. The gist of same is briefly summarized as under :-
PW Sh.Bishamber Dayal deposed that land sold vide Ex. P3 (i.e. sale deed dated 23.2.96 involving sale of 1 bigha of land for consideration of Rs.4,20,000/-) was used by him for agricultural purposes. The sale deed was executed on 23.2.96 and the entire sale consideration was received in cash. During cross examination he deposed that he could not tell how many witnesses were there at the time of execution of sale deed but stated that they may be two or three. He further deposed that he had a bank account but did not deposit the money in the bank. He further stated that he did not made any declaration with the income tax authorities and had not taken any permission for sale of land in question. The deal is stated to be finalized through a mediator and Contd.....-:6:- LAC No. 159/06
O.P.Gupta vs. UOI the consideration is stated to have been paid on the same date in the registrar office. He denied the suggestion that the same had been executed to get more compensation for the acquired land.
PW- Sh.Mahinder Singh deposed that he had sold 1 bigha of land in village Aali to Sh.Arjun for sum of Rs.4,90,000/- and had received the consideration in cash. During cross examination he deposed that he knew Arjun Singh 4-5 yrs. prior to the date of sale of land. He denied the suggestion that the sale transaction had been executed at higher rates to get more compensation as the villagers knew that land was likely to be acquired. He further stated that the sale consideration was received in 2/3 installments which he could not tell exactly and the same was not deposited in any bank account though he had a bank account.
PW Sh.Surinder Singh deposed that he had purchased a piece of land measuring 1 bigha for consideration of Rs.4,20,000/- vide sale deed ex. P4 and the sale consideration was paid in cash. During cross examination he admitted that land was purchased after issuance of notification u/s 4 of LA Act on 16.10.92. He further admitted that land in question had no authorized or unauthorized colonies near the land in dispute. He also deposed that he had not filed on record any khasra girdawaris showing cultivation of crops on the land in question but denied that the land was banjar.
PW- Sh.Ashok Kumar, Halka Patwari village Aali deposed that village Madanpur Khadar is between village Jasola and Aali and all the three villages are located in same area.
Contd.....
-:7:- LAC No. 159/06O.P.Gupta vs. UOI Agricultural land of village Jasola was stated to be 3 km. away from village Aali. Aks sazra of village Madanpur Khadar was marked as mark X. Mathura Road was stated to be at a distance of 6 kms. from the land in question. Similarly Mohan Co-operative was stated to be at a distance of 6 kms. from the land in question and Sarita Vihar and Apollo Hospital at distance of about 7 kms. The fertility of soil in village Aali and Madanpur Khadar was stated to be same. During cross examination he deposed that land in village Aali had been earlier acquired for NTPC project. The land in question was stated to be cultivated and separated from Yamuna river by bund.
Mark D is photocopy of judgment and decree passed by the Hon'ble High Court in RFA no.155/98 entitled Om Prakash & Ors Vs. UOI & Ors whereby land notified u/s 4 on 06.1.95 in village Jasola was assessed @ Rs. 7,390/- per sq.yd.
Mark E is copy of judgment passed by the Hon'ble High Court in RFA no.114/98 entitled S.S.Aggarwal & Ors Vs. UOI & Ors whereby land notified u/s 4 on 06.1.95 in village Jasola was assessed @ Rs. 7,390/- per sq.yd.
Ex. P1 is photocopy of judgment passed by Hon'ble High Court in RFA No. 65/81 entitled Bhola Nath & Ors Vs. UOI reported in 1998 VI AD (Delhi) 159, whereby land notified u/s 4 on 30.6.78 in village Bahapur was assessed @ Rs.
Contd.....
-:8:- LAC No. 159/06O.P.Gupta vs. UOI 2000/- per sq. yd.
Ex. P2 is photocopy of judgment passed by Hon'ble High Court in RFA No. 461/95 entitled Hari Chand Vs. UOI reported in 91 (2001) Delhi 602 (DB), whereby land notified u/s 4 on 01.6.92 in village Tuglakabad was assessed @ Rs. 3000/- per sq. yd.
Mark F is office order no. 19/99 issued by the Ministry of Urban Development fixing market rates for the land situated in New Delhi/ Delhi w.e.f. 01.4.99.
6. Respondent UOI in support of its case relied upon Award along with copy of policies dated 03.5.90 and 25.7.97 issued by Government of NCT of Delhi (Land & Building Department). Same were exhibited as Ex. R1 to R3.
7. I have heard Counsel for the petitioner, Counsel for UOI and perused the record. My issue-wise findings are as under :-
8. ISSUE NO. 1 : The award in the present case was announced on 23.2.99. The reference is dated 6.12.99 Contd.....
-:9:- LAC No. 159/06O.P.Gupta vs. UOI and has thereafter been forwarded to the reference court for assessment of the value of the land in accordance with law. The counsel for petitioner has claimed that no notice u/s 12(2) of the LA Act was served upon the petitioner. The date of knowledge is claimed within 6 months before filing of reference. Even part payment to the petitioner is stated to have been released on 10.6.99 without disclosing the complete particulars of the award and delivery of copy. The reference as such is claimed to be within limitation i.e within 6 months from the date of knowledge.
The principle of law has been clearly enunciated in the cases referred by the counsel for the petitioners. The question for consideration is the date on which the petitioner can be presumed to have actual or constructive notice of the passing of the award. The said principles may now be applied in the present case to determine the date of knowledge of the petitioner (actual or constructive) of the passing of the award which may be considered as starting point for calculating the period of limitation.
No evidence has been led by the respondents to Contd.....
- : 10 : - LAC No. 159/06O.P.Gupta vs. UOI prove in case the petitioner was present at the spot at time of announcement of Award or if they had been served with any notice after passing of the award. In the absence of any evidence being led by the respondents to the aforesaid extent or raising any objection while forwarding the reference; the same cannot be deemed to be barred by limitation. Even the part payment appears to have been made to the petitioner only on 10.6.99 as observed in statement u/s 19 but without indicating in case the petitioner was supplied with a copy or details of the award. As such the reference is within limitation. The issue is accordingly decided.
9. ISSUE No. 2 & 3 : Counsel for the petitioner urged that the rate of land in village Aali be assessed on the basis of rates assessed in village Jasola. He further referred to judgment passed by the Hon'ble High Court in S.S. Aggarwal & Ors. Vs. UOI whereby rate of land notified u/s 4 on 06.1.95 in village Jasola was assessed @ Rs.7390/- per sq. yd. He also referred to the rates of land assessed in village Bahapur and Tuglakabad and claimed that the rates prevalent in the vicinity may be considered for assessing the value of land in village Aali.
Contd.....
- : 11 : - LAC No. 159/06O.P.Gupta vs. UOI The submissions were opposed on behalf of respondent on the ground that village Aali is surrounded by village Badarpur, Jaitpur and Molarbund and is far away from village Jasola. It was urged that potentiality and location of land had already been noticed by this court in other references pertaining to Award No. 3/97-98 and Award No 9/94-95.
10. It is settled law that the best piece of evidence to assess the market value of acquired land in the village, are the instances of sale of land in the same village and the other material depicting the market value in the same village may be also helpful. In absence of any such material, reliance can be placed on instances of prices of land in adjoining villages subject to the condition that the potentiality, location and nature of land in the adjoining villages is comparable.
11. In the case of Shakuntalabai (Smt) & Ors. Vs. State of Maharashtra, reported as (1996) 2 SCC 152, their Lordships have categorically observed that when on record there is evidence of the value of the acquired land itself, then it is Contd.....
- : 12 : - LAC No. 159/06O.P.Gupta vs. UOI unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent land. The relevant portion of the said 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 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.'' Since the instances of sale of land in village Aali have been relied upon by the petitioners, the sale prices of the land in village Jasola, Tuglakabad & Bahapur are not required to be looked into.
Further it has not been proved on record in case Contd.....- : 13 : - LAC No. 159/06
O.P.Gupta vs. UOI the potentiality, location and nature of land in village Jasola, Bahapur and Tuglakabad is the comparable to village Aali. As such the assessment of land in aforesaid villages cannot be relied upon to assess the market value in village Aali.
At this stage, I may mention that I have decided references pertaining to Award No. 9/94-95, village Aali wherein land was notified u/s 4 on 16.10.92. The location and potentiality of land of village Aali has duly come on record in the aforesaid references. It has come on record in the said references that village Aali is located at a distance of 3 kms from village Jasola and village Madanpur Khadar is intervening between the two villages. In view of above, it can be safely inferred that village Jasola and Aali are not adjoining. Further no reliable evidence has been led by the petitioners to show that the potentiality of land of village Jasola and Aali is comparable. The assessment in village Jasola at higher rates appears to be on account of development which had already commenced in the area and vicinity. In view of above, the rate of land assessed in village Jasola cannot be relied upon to assess the market value in village Aali as the location, potentiality and development is not comparable.
Contd.....- : 14 : - LAC No. 159/06
O.P.Gupta vs. UOI I may also mention that during course of arguments in references pertaining to award no. 3/97-98 village Aali, my attention was drawn to judgment passed by the Hon'ble High court in RFA No. 254/78 entitled UOI Vs. Bharat Singh & Anr. wherein land notified u/s 4 on 06.4.64 in village Molarband was assessed @ Rs. 12,000/- per bigha. Reference was therein made to the fact that village Molarband had same potentiality as the land in village Badarpur and it was also observed that village Molarband is adjacent to village Aali and Badarpur. It was further observed that the same rate had been awarded for the land notified u/s 4 on 06.4.64 in village Badarpur. The location and potentiality of village Aali as such appears to be more comparable to village Jaitpur and Badarpur than village Jasola, Tuglakabad, Tehkhand wherein development had commenced. Even in reference proceedings pertaining to award no 9/94-95 it was noticed that no substantial development had taken place in village Aali as the land had been largely acquired in village Ali and Jaitpur for construction of ash pond. Thus, no substantial development appears to have commenced in the village. Further the land could only be used for agricultural purposes. For the foregoing reasons, Contd.....- : 15 : - LAC No. 159/06
O.P.Gupta vs. UOI I am of the considered opinion that it may not be prudent to assess the value of land comparing it with village Jasola, Bahapur and Tuglakabad. As such Ex.P1,P2 & Mark D&E are not relevant to assess the value of land.The authorities relied bythe petitioner as such are not applicable in the facts and circumstances of the case.
12. Next, the Counsel for petitioners has relied upon sale deeds Mark A & B dated 23.2.96 and 28.2.96 whereby one bigha of land in each case was sold for consideration of Rs.4,20,000/- & Rs.4,90,000/- respectively, in village Ali. There is no dispute as to the proposition of law that the certified copies of judgment are admissible under evidence after incorporation of Section 51 A. However, the value of land can be supported or controverted, by other evidence to consider the reliability of the sale deeds. The question for consideration is whether the sale deeds relied by the petitioners are bonafide and genuine and reflect the prevalent market value of land.
I had an occasion to consider the reliability of aforesaid sale deeds in LAC NO. 147/94 entitled Hari Chand Vs. UOI & Ors pertaining to award no. 9/94-95 village Ali involving Contd.....
- : 16 : - LAC No. 159/06O.P.Gupta vs. UOI date of notification u/s 4 on 16.10.92, wherein the vendor and vendee of the aforesaid sale deeds were examined by the parties. Observations recorded by this court in LAC NO. 147/94 entitled Hari Chand Vs. UOI & Ors may be beneficially reproduced to assess the bonafdes of the said transactions.
'' Further the testimony of PW-2 Sh.Bishambar Dayal who was vendor in sale deed dated 23.2.96 reveals that the entire transaction had been paid in cash even without any declaration with the income tax authorities. The transaction does not inspire any confidence since the amount was not tendered by cheque or drafts in accordance with law. Similarly the sale deed dated 28.2.96 does not inspire confidence as the transaction in aforesaid case was also in cash as deposed by PW-4. It may be observed that land in village Ali has been under acquisition in subsequent awards and it cannot be ruled out that the transactions may have been entered to claim an enhanced value, as the proceedings for acquisition are known to the villagers on account of surveys taken in advance in the village, much prior to date of notification u/s 4."
In view of above, I am of the considered opinion that the aforesaid sale deeds cannot be relied upon to assess the market value of the land.
I may also mention that in LAC No. 4/06 entitled Shafiq ur Rehman Vs. UOI pertaining to same Award (decided on 21.3.07), one bigha of acquired land itself was purchased by petitioner Shafiq-Ur-Rehman vide sale deed dated 18.12.05 for consideration of Rs. 1 Lac. The observations recorded in said Contd.....
- : 17 : - LAC No. 159/06O.P.Gupta vs. UOI LAC No. 4/06 may be beneficially reproduced :-
"Since the instances of sale of land in village Aali have been relied upon by the respondents, the sale prices of the land in village Jasola & Tuglakabad are not required to be looked into. Rather in the present case, the petitioner himself had purchased the acquired land measuring one bigha in village Ali vide sale deed dated 18.12.95 for consideration of Rs.1 Lakh and further a sum of Rs. 8,000/- was paid towards stamp duty. The said sale deed has been executed about 10 months prior to the date of notification u/s 4 and the rates even as per the consideration paid by the petitioner was Rs. 1 Lac Per bigha. The same reflects that the market value of the land was much less than the amount assessed by the LAC @ Rs. 1,94,088/- per bigha. Even if an appreciation is assumed @ 12% p.a. from 18.12.95 till date of notification u/s 4 i.e 31.10.96, the rate of land would be far less than awarded by LAC."
The same also reflects that the prevalent market value of the acquired land was far less than the sale deeds relied upon by the petitioner.
I am also of the view that the rate of land cannot be assessed on the basis of rates notified by the Government of India as claimed by the petitioner, since the rates prevalent near the date of notification have been relied upon and give a clear indication of the prevalent market value of land.
13. The counsel for petitioner has Contd.....
- : 18 : - LAC No. 159/06O.P.Gupta vs. UOI next contended that appreciation be granted @ 12% p.a (compounded) on the rates fixed as per policy dated 3.5.90, whereby minimum rate of agricultural land was fixed @ 4.65 lacs per acre. Reference has also been made to Bedi Ram vs. UOI 93 (2001) DLT 150 DB. I find no merits in the contention raised by the petitioner as no evidence has been brought on record to show that the rate of land at the aforesaid time appreciated at compounded rates of 12% per annum orabove. The proposition of law referred by the counsel for petitioners in the judgments cited by him are well settled but each case is required to be decided on the facts and circumstances. In view of above the appreciation cannot be granted at the rates of 12% compounded or above, as contended by the counsel for the petitioner.
14. Counsel for the petitioner has further contended that the LAC has failed to correctly calculate the amount after adopting an increase @ 11.5% compounded and there is a difference of Rs. 2,852/- per bigha. Counsel for UOI admits the calculatory error to the aforesaid extent. In view of above, the rate of land as assessed by the LAC is enhanced to Rs.
Contd.....
- : 19 : - LAC No. 159/06O.P.Gupta vs. UOI 1,96,940/- per bigha.
15. Counsel for the petitioner has also urged that the LAC has not awarded the interest as contemplated u/s 34 of the Act, @ 9% p.a. for the first year and thereafter @ 15%p.a. Counsel for respondent / UOI has urged that in the summary of the award interest u/s 34 has been awarded from 4.2.97 (date of possession) till 18.2.99 (date of award). It is contended that on the basis of summary it cannot be presumed whether the interest has been calculated @ 9% for the entire period as claimed by the petitioner. It is further submitted that in case any discrepancy has crept in this regard in calculations, the same may be directed to be corrected on recalculation by the LAC. In view of above, LAC is directed to recalculate the interest u/s 34 and in case of any discrepancy the petitioner be paid the balance amount of interest.
16. Counsel for the petitioner has Contd.....
- : 20 : - LAC No. 159/06O.P.Gupta vs. UOI next contended that interest has not been calculated by the LAC in accordance with Sunder's judgment DLT 2001 (SC) 569, after including the solatium and additional amount. Counsel for UOI submits in case the interest has been granted u/s 34 without including the solatium and additional amount as directed by the Hon'ble Supreme in Sunder's case (supra), the LAC may be directed to recalculate and pay the same accordingly. In view of above, LAC is directed to recalculate the amount and in case the interest has not been granted on solatium and additional amount as contended above, the same be granted in accordance with judgment passed by the Hon'ble Apex Court in Sunder's case.
17. RELIEF : In view of findings on issue no. 1&2, the petitioner is entitled to compensation @ Rs. 1,96,940/- per bigha. Besides this, petitioner is also entitled to 30% solatium on the market value of land fixed in this case. Petitioner shall also be entitled to interest on the enhanced amount/ compensation awarded by this court under section 28 @ 9% per annum from the date of award or dispossession whichever is earlier till the expiry of one year and thereafter @ 15% per annum till Contd.....
- : 21 : - LAC No. 159/06O.P.Gupta vs. UOI payment. Petitioner shall further be entitled to additional amount of 12% p.a. on the market value fixed in this case under section 23 (1A) of the said Act from the date of notification under section 4 of the said Act till the date of dispossession or award whichever is earlier. Petitioner is further entitled to interest on solatium and additional amount in terms of judgment of Hon'ble Apex Court entitled Sunder vs UOI reported in DLT 2001 (SC) 569.
While making the calculations due regard shall be made to deduct the amount initially arrived at by the LAC to avoid any duplication. No order as to costs.
18. A copy of this judgment be sent to the Land Acquisition Collector concerned for information. The petition stands disposed off accordingly. File be consigned to record room.
Announced in the open court (A.K.MENDIRATTA) Dated : 18.4.07 Additional District Judge, Delhi.
Contd.....
- : 22 : - LAC No. 159/06O.P.Gupta vs. UOI 18.4.07 Present : Sh.S.K.Mehta, Adv. for the petitioner Sh.S.K.Puri, Counsel for UOI.
Counsel for NTPC.
Vide separate judgment the reference is disposed off. File be consigned to record room.
(A.K.MENDIRATTA) Additional District Judge, Delhi.
Contd.....