Delhi District Court
Reference Under Section 18 Of Land ... vs Union Of India on 6 July, 2011
IN THE COURT OF MS.NIVEDITA ANIL SHARMA,
ADDITIONAL DISTRICT JUDGE-02, WAKF TRIBUNAL,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Suit Number : 53/08/06.
Unique ID Number : 02403C0974282008.
Reference under section 18 of Land Acquisition Act
S.Tej Pratap Singh
Son of S.Shamsher Singh
11/16, Vasant Vihar, New Delhi.
...................................................................................................Petitioner.
Versus
1. Union of India
To be served through
Land Acquisition Collector, Delhi.
2. Delhi Metro Rail Corporation
To be served through
Its General Manager
Mori Gate, Delhi.
..............................................................................................Respondents.
Award Number : 1/2004-2005.
Award announced on : 30.06.2004.
Purpose of acquisition : For station facility of MRTS
project on Connaught Place
-Dwarka Corridor of DMRC Ltd.
Name of Village/Locality : Barakhamba Road, Connaught
Place, New Delhi.
Date of institution of reference petition : 23.11.2004
Date of conclusion of arguments : 06.07.2011.
Date of judgment : 06.07.2011.
Appearances: Mr.Deepak Khosla, counsel for the petitioner.
Mr.N.L.Singh, counsel for the respondent number 1.
Mr.S.K.Jha, counsel for the respondent number 2.
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Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
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JUDGMENT
1. This is a reference petition under section 18 of the Land Acquisition Act (hereinafter referred to as the Act) filed by S.Tej Pratap Singh, the petitioner, against Union of India, the respondent number 1 (hereinafter referred to as the UOI) and Delhi Metro Rail Corporation, the respondent number 2, (hereinafter referred to as the DMRC). Petitioner, claiming to be the owner of this property, got his petition under section 18 of the Act referred to the Court for enhancement of compensation awarded in respect of the acquired land.
PETITION
2. It is averred by the petitioner that lease hold vacant land measuring 584.780 square meters out of property/land bearing plot number 48, Block 148, also known as 23, Barakhamba Road, New Delhi, owned by S.Tej Pratap Singh, the petitioner, had been acquired vide award bearing number 1/2004 dated 30.06.2004 vide issuance of notification under section 4 of the Act dated 28.03.2003 and notification under section 6 of the Act dated 17.04.2003 for the purpose of Delhi Metro Rail Corporation for the construction of Metro Rail Station. Possession of this land was taken on 22-7-2003. The Land Acquisition Collector (herein after referred to as LAC) has assessed the compensation @ Rs.57,960/- per square meter which is too low, arbitrary, without any reasonable basis and the same is not acceptable to the petitioner. LAC treated this land as being used for commercial purposes vide his award dated 30.06.2004 and assessed the amount of compensation at Rs.57,960/- per square meter (or Rs. 5,385.115 sq. feet). Separate compensation of Rs.1,16,69,964/- was awarded for structure/other things as per the valuation report given by DMRC duly vetted by PWD. The property in question which is known as Narain Manzil Building, 23 Barakhamba Road Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
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is of commercial nature and also had besides its other fixtures and amenities, pump house, two jockey pumps, two electric fire pump etc., two underground water tanks worth capacity of five lac liters which had to be reconstructed due to the acquiring of the land for the respondent number 2, DMRC regarding which the petitioner had to bear expenses and unnecessary expenses to the tune of Rs.5 lacs. As the front portion of the property in question had been acquired, the value of the property has tremendously deteriorated as there is no frontage left in the building and even the access of the building has to be made from rear side due to which there is loss of business, electricity charges. Petitioner has claimed the compensation amount as inadequate and unjustified on several grounds. As the property in question was a lease hold property, so a separate reference under section 30-31 of Land Acquisition Act was also forwarded due to dispute of apportionment of the compensation amount between the petitioner (lessee) and L&DO (Lessor). Request for enhancement of the compensation for the acquired land is made. In the present reference, the petitioner has claimed enhanced compensation of land at the rate of Rs.4 lacs per meter as well as some other losses occurred to him due to acquisition proceedings by taking several grounds which shall be discussed later on.
SERVICE AND WRITTEN STATEMENTS
3. Both the respondents i.e. UOI and DMRC were served with the notice of the reference petition and pursuant there to, they had appeared and filed their respective written statements contesting the case wherein they have controverted and rebutted all the averments made in the petition submitting that the compensation award is justified ,correct and reasonable. It is also submitted that the compensation has been awarded on the higher side as MNCs etc. have shifted from Barakhamba Road, Connaught Place to the Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
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satellite towns of Gurgaon and Noida and market value of the property has diminished. Prayer for the dismissal ofthe reference petition is made.
ISSUES
4. From the pleadings of the parties, vide order dated 05.04.2006 of the learned Predecessor, the following issues were framed:
1. What was the market value of the property in question at the time of issuance of notice u/s 4 of the LA Act? OPP.
2. Whether the petitioner is entitled to enhancement of compensation, if so,to what amount? OPP.
3. Relief.
EVIDENCE
5. In order to prove its case, the petitioner, Mr.Tej Pratap Singh, has examined as many as five witnesses namely himself as PW1, Mr.Sanjay Kandpal as PW2, Mr.S.S.Kaushik as PW3, Mr.S.L.Fimate as PW4 and Mr.Dinesh Khanna as PW5. On behalf of the respondents, the copy of award, schedule of market rates and five sale deeds were only tendered in evidence.
6. PW1, Mr.Tej Pratap Singh, has filed his affidavit in his examination in chief reiterating and reasserting the averments made in the reference. He has also relied upon the certified copy of sale deed of property bearing number 11 Barakhamba Road as Ex.P1. In his cross examination, he has admitted that initially property number 23 Barakhamba Road was having the permissive use for residential purposes and the user was subsequently converted to commercial. He has not proved the cost of the underground water tank constructed by him initially and and after acquisition of the land.
He has denied the various suggestions given to him by the defendants.
7. PW2, Mr.Sanjay Kandpal, Record Keeper, Chief Architect Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
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Department, NDMC Palika Bhawan, New Delhi has proved the completion certificate of premises number 23 Barakhamba Road, New Delhi and has proved the same as Ex.PW2/1.
7. PW3, Mr.S.S.Kaushik, Assistant Divisional Officer, Delhi Fire Service, Connaught Place, New Delhi has proved the letter number F. 6/MS/DFS/87/1845 dated 6/11/87 whereby a no objection certificate for construction of High Rise Building at 23 Barakhamba Road was granted and same is Ex.PW3/1. He has also proved the letter Ex.PW3/2 wherein the inspection was carried out after the completion and communication was addressed to the Chief Architect. After the shifting of the water tank inspection was again carried out and a letter in this regard was issued which is dated 01.06.2004 and is Ex.PW3/3.
8. PW4, Mr.S.L.Fimate, Assistant L & DO Department Nirman Bhawan, New Delhi has proved Ex.PW4/1, the letter dated 24.11.1998 issued by Assistant Settlement Commissioner whereby a sum of Rs.2,59,43,226.00 alongwith other charges were demanded as conversion charges.
9. PW5, Mr.Dinesh Khanna, has also filed his affidavit in his examination in chief wherein he has reiterated and reasserted the averments made in the reference and has supported the claim of the petitioner. He has deposed that he is a qualified Chartered Accountant and is in the employment of petitioner for last more than 20 years. The petitioner has paid conversion charges of Rs.2,59,43,226/- to the Land & Development Office whereupon the petitioner was permitted to construct a multi storeyed commercial building. Petitioner has also shifted/rebuilt the water tank of the capacity of 5,00,000 litres to the side set back portion for which he has incurred a cost of Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
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Rs.Fifty Lacs. The shifting of the tanks was mandatory as due to acquisition the respondent number 2 had to dug up the area with a view to make underground metro station and other ancilliary super structure. In his cross examination, he has admitted that he has not filed any document for the cost incurred upon the reconstruction of the alternate underground water tanks.
10. The Union of India has preferred not to lead any evidence in support of its contentions.
11. The counsel for DMRC has tendered the copy of award number 01/2004-2005 dated 30.06.2004 pertaining to village/locality of Barakhamba Road, Connaught Place, New Delhi as Ex.RW2/1. He has also tendered in evidence the copy of schedule of market rates bearing number J-22011/4/95-
LD dated 16.04.1999 issued by Ministry of Urban Affairs and Employment, Department of Urban Development(Land Division) Ex.RW2/2.
12. The petitioner has relied upon Ex.P1 i.e. sale deed of property bearing number 11, Barakhamba Road, which is residential in nature wherein the price of land in October, 1997 was Rs.58450/-per sqm.
13. The respondents have also laid reliance on copies of five sale deeds of adjoining areas which are Ex.RW2/2 to Ex.RW2/6.
ARGUMENTS
14. I have heard the arguments at length and have given my conscious thought and prolonged consideration to the material on record, relevant provision of law and the precedents on the point. I have also carefully perused the written arguments filed on behalf of the parties as well Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
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as the documents relied upon by them.
15. After due consideration, the issues are decided as follows:
ISSUE NUMBER 1
16. Issue number 1 is........What was the market value of the property in question at the time of issuance of notice u/s 4 of the LA Act? OPP.
17. The crucial date to find out and assess the quantum of compensation is the date of notification under section 4 of the Act i.e. 28.03.2003. The petitioner, in his present reference petition, has claimed compensation for land at the rate of Rs.4 lacs per square meter but his own admission made in his claim application filed before LAC under section 9 of the Act after the date of issue of notification under section 4 reveals that he had assessed sum of Rs.1,12,623/- per square meter as the current market price of the acquired land in question. The contents of the award so disclose and no dispute is raised in this regard by petitioner. Counsel for the respondents have argued that the maximum limit of enhanced amount, if any shall be Rs. 1,12,623/- per square meters only, if petitioner is otherwise able to prove it, so claim made by petitioner now in the reference petition at Rs.4 lac per square meter as the market price of the land is liable to be rejected outrightly being highly excessive, unreasonable, inappropriate and beyond the demand.
18. The counsel for respondents, in this regard, have relied upon judgment of the hon'ble Supreme Court reported as Union of India v. Pramod Gupta, AIR 2005 Supreme Court 3708 where in it is held that Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
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compensation amount should not exceed the amount claimed. However, this submission is liable to be rejected because Supreme Court in this judgment dealt with the provisions of section 25 of Land Acquisition Act as it stood prior to year 1984 which has now been amended and there are now no bar to claim compensation in excess to the demands once raised.
19. The petitioner, as PW1, in paragraph number 2 of his affidavit of evidence has averred that the land in question was owned by him but this fact is totally wrong as it was a land belonging to L & DO and the petitioner was only a lessee of the same. Similarly, in some paragraphs of his affidavit, he had claimed compensation for loss occasioned due to alleged non availability of buyers of his property but the terms of lease totally prohibits him to sell and transfer the lease hold property to anyone. These facts point out towards malafide intention of the petitioner to mislead the Court but it can be ignored.
20. There is no dispute that the acquired property in question which is a lease hold property was being used as a commercial property. LAC had also as per his award treated it as commercial one. Earlier, the permissive use of the same was residential, but there is no dispute that petitioner got converted the same into commercial use in the year 1989 by following the proper procedure and by paying necessary conversion charges. PW4 has proved regarding fact of payment of complete conversion charges and permission granted by the L & DO to raise multiple storeyed building on it. The petitioner raised construction of 18 storeyed building over it and PW2, from office of Chief Architect Department, NDMC, has proved the issue of completion certificate of this property Ex. PW2/1 after building was found constructed according to the sanctioned site plan.
Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
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21. PW3, from office of Delhi Fire Service, has proved the letters Ex.PW3/1 and PW3/2 regarding issuing of no objection certificate for construction of High Rise Building and to occupy the same. He also deposed about letter Ex. PW3/3 regarding approval about shifting of the underground water tank after the acquisition proceedings were completed.
22. However, the piece of land acquired was only an open vacant land situated on front side of 18 storeyed building 'Narain Manzil' and there is nothing on record to point out that any permission was given to raise any construction over this vacant acquired plot in question. It is stated that this acquired place was being used as a parking space and for the purpose of land scaping. PW5 has filed a map, Ex.PW5/2, on record though in respect of different context pertaining to shifting of underground water tank but it reveals that there was no construction over the acquired land and it was only a vacant land.
23. The petitioner, in his affidavit of evidence, has given details about the nature of construction, facilities available, use and benefits of his 18 storied building but forgot that LAC had not acquired his 'Narain Manzil' building or any part of the same but has acquired only some open vacant space in front of this building where there was no ground level construction and that space was only maximum used as parking or land scapeing purposes. Therefore, the Court while deciding this issue is only concerned with the market value of land and not with the structure of main building situated at some distance, though certain underground structure i.e. water tank existing in the acquired land can be taken note of.
24. Now in order to solve the controversy, what was the market Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
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value of the land in question, whether compensation awarded by the LAC under the award at the rate of Rs.57,960/- per square meter (or Rs. 5,385.115 square feet) is justified and whether the petitioner is entitled for any enhancement of compensation, following points raised by the parties in evidence and arguments are being considered. The relevant date to find out the market value of the property is to be taken as the date of notification under section 4 of Land Acquisition Act i.e. 28.03.2003.
(i) SALE DEED OF THE SAME ACQUIRED PROPERTY:
25. Acquired land in question is a leasehold land and petitioner was only a lessee of the same and not its owner. According to the judgment of the hon'ble Supreme Court reported as Shakuntlabai v. State of Maharashtra, (1996) 2 SCC 152 and T.S. Ramachandra Shetty v. Chairman, Karnataka Housing Board, II (2009) SLT 638 the best way to determine the market value of acquired land is to find out at what rate it was purchased by the owner and in that situation, value of adjacent or nearby lands need not be taken into consideration. In another matter, Bangaru Narasingha Rao v. Revenue Divisional Officer, AIR 1982 SC 63, it was held that there cannot be any doubt that the best evidence of the market value of the acquired land is afforded by transactions of sale in respect of that very acquired land, provided of course there is nothing to doubt the authenticity of the transactions. But here in this case, as the petitioner was not the owner of the acquired land but it was owned by a Government agency i.e. L & DO, so no question of looking into any previous sale deed of this property arises. Otherwise also there is no such sale deed on record. As this method is not available to the Court to find out the approximate market value of the land, so, accordingly, other methods have to be searched to find out the market value of the acquired property in question.
Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
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(ii) SALE DEEDS OF NEARBY AREAS
26. Another important way to assess the market value of the acquired land is to see at what rate similar type of lands in the same or nearby areas were sold during the relevant period as held by the hon'ble Supreme Court in Special Deputy Collector v. Kurra Sambasiva Rao, AIR 1997 SC 2625 and APMC v. Land Acquisition Collector, JT 1996 (9) SC 432. In these cases, the theory of a prudent buyer was involved and it was held that the judge should sit in the arm chair of the willing buyer and seek an answer to the question whether in the given set of circumstances as a prudent buyer, he would offer the same market value which the Court proposed to fix for the acquired lands in the available market conditions.
27. The petitioner, as PW1, has placed on record only one sale deed Ex. P-1 whereas counsel for respondents also placed on record five sale deeds Ex.R-2 to R-7 to show the approximate market value of the similar type of properties in the same and adjoining areas. The details of sale deeds are as under:
SALE DEED PRODUCED BY THE PETITIONER Sr. Ex. Description Area sold Date Sale Average no. No. of property of sale consideration value in rupees 1 P-1 Plot no. 11, 4,791 sq. 06.10.1997 28 Crores 58,442.913 Barakhamba meter per sq. Road Or meter or 51,569.89 5,429.524 sq. feet per sq. feet (1 sq. feet=0.9290 sq. meter Or Suit Number : 53/08.
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1 sq. meter=10.763 sq. feet) SALE DEEDS RELIED UPON BY THE RESPONDENTS Sr. Ex. Description of Area Sold Date of Sale Average No. No. property Sale consideratio value in n rupees in Rupees
1. RW2/2 M-11, Gokul 98.167 sq. 28.08.2002 17,10,000 17,419.29 Niwas meter per sq. Connaught Or meter Place 1056.67 Or (constructed sq. feet 1,618.29 upper ground per sq. feet floor with roof rights and AC)
2. RW2/3 B-45-47, 59.060 sq. 05.09.2002 30,00,000 50,795.80 Connaught meter per sq. Circus , New Or meter Delhi 635.72 sq. Or (shop on ground feet Rs.
floor) Or 4,719.05
per sq. feet
3. RW2/4 M-11, Gokul 98.167 sq. 28.08.2002 17,10,000 17,419.29
Niwas meter per sq.
Connaught Or meter
Place 1056.67 Or
(constructed sq. feet 1,618.29
Suit Number : 53/08.
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upper ground per sq. feet
floor with roof
rights and AC)
4. RW2/5 M-11, Gokul 98.167 sq. 28.08.2002 17,10,000 17,419.29
Niwas meter per sq.
Connaught Or meter
Place 1056.66 Or
(constructed sq. feet 1,618.29
upper ground per sq. feet
floor with roof
rights and AC)
5. RW2/6 6, Central Lane, 275.92 sq. 10.03.2003 1,25,00,000 45,302.98 Babar Road, meter per sq. Bengali Market Or meter (constructed 2969.978 Or property from sq. feet 4,208.78/-
basement to per sq. feet
second floor)
28. Mere production of sale deeds on record itself is not sufficient to consider the same in evidence. Similarly mere registration of document itself is not sufficient to prove its contents also. Though under the Act, production of certified copies of sale deeds instead of original is admissible but it is also required that vendor or vendee or scribe of those sale deeds should be examined. Full Bench of the hon'ble Supreme Court in the case reported as Special Deputy Collector v. Kurra Sambasive Rao, AIR 1997 SC 2625 Suit Number : 53/08.
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held as follows:
"Section 51-A of the Act only dispense with the production of the original sale deed and directs to receive certified copy for the reason that parties to the sale transaction would be reluctant to part with the original sale deed since acquisition proceedings would take long time before award of the compensation attains finality and in the meanwhile the owner of the sale deed is precluded from using the same for other purposes vis-à-vis this land. The marking of the certified copy per se is not admissible in evidence unless it is duly proved and the witnesses viz. the vendor or the vendee are examined."
29. Similar view was made in another judgment of the hon'ble Supreme Court in the case reported as P. Ram Reddy v. Land Acquisition Officer, (1995) 2 SCC 305 wherein it is held that the certified copies of registered documents, though accepted as evidence of transactions recorded in such documents, the Court is not bound to act upon the contents of those documents unless person connected with such documents gives evidence in court as regards them and such evidence is accepted by the court as true.
30. Here, in the present case under consideration, both the parties have simply placed on record the sale deeds without examining the party to those deeds so in view of the law laid down above, sale deeds of both the parties cannot be considered in evidence and liable to be rejected straightway. However, still even if the same are relied upon and taken into consideration, then also the same are of no help to any of the parties for the following grounds and reasons.
31. Sale deed Ex.P-1 relied upon by the petitioner pertains to residential property and not commercial property. The property sold under this sale deed at the rate of Rs. 58,442.913 per square meter on 06.10.1997 (about 5 ? months prior to the date of notification under section 4 of the Act) Suit Number : 53/08.
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is reported to be situated at a distance of about six buildings away from the acquired land in the same area, same side and on the same road. The learned counsel for the petitioner has requested to take into consideration this sale deed and atleast assess the value of the acquired land by giving yearly appreciation as permissible under law. There is a certified copy of judgment dated 14.05.2008 given in LAC number 377/06 by the Court of Mr.Yashwant Kumar, learned Additional District Judge, wherein in respect of land acquired in village Jantar Mantar on basis of notification under section 4 of the Act dated 31.03.2000 vide award number 13/2001-02, the compensation amount was enhanced from Rs.18,480/- to Rs.56,908/- per square meter. In this judgment, this sale deed Ex. P-1 has been relied upon but in my view this judgment is not of so much help to the petitioner as each case has to be decided on basis of its own facts and circumstances. Otherwise also, it is informed by counsel for respondents that this judgment is under challenge in hon'ble High Court. The contents of this sale deed Ex.P-1 clearly point out that purchasers wanted to raise multi storeyed residential building complex on it and for this specific purpose had bought it. There is no evidence on record to show that acquired land in question and property sold under Ex.P-1 are contiguous to each other. Otherwise also, the sale deed further shows that besides constructed portions, servant quarters, garages, open space etc. were also sold. Contents of this sale deed prima facie show that purchaser had apparently given higher price with specific intention to construct multiple storeyed residential complex. Therefore, the market value as disclosed in Ex.P-1 cannot be said as representing real value qua the acquired property of the petitioner. This sale deed Ex. P-1 is also in respect of not only land but building constructed thereon along with its fittings, fixtures, water, sewerage and electricity connections was also sold as well as some other facilities in respect of already obtained some approvals of competent authority etc. which Suit Number : 53/08.
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is not the position in the present case. This sale deed cannot be treated as true representation of the market value of the acquired land in question. Thus the average sale consideration under this sale deed Ex. P-1 cannot be treated as comparable to the value of the acquired vacant land because some deductions against cost of constructions, superstructure, other fittings and fixtures as well as for facilities provided have to be made in sale consideration of Ex. P-1 but how much approximate deductions should be made for building, fittings and fixtures, different type of connections etc., facilities is not possible to ascertain in absence of any evidence to show the approximate value of the these things. It has not come on record what was the extent, nature and area of construction and superstructure existing on that sold plot, what kind of fittings and fixtures were there and what was its approximate value and what were the charges for transfer or sale of connections already installed therein. As it is not possible to segregate the value of land, building constructed on it and other items and facilities, so I am of the considered view that this sale deed Ex. P-1 cannot become base for ascertaining the even approximate value of the acquired vacant land in question when it is not known how much average value of land only has to be taken into consideration after deducting the value of constructions, fitting and fixtures, facilities etc. The sale deed, Ex. P-1, therefore, cannot help the petitioner in any manner for increasing the amount of compensation and accordingly is rejected while placing some reliance upon the decision of the hon'ble Supreme Court given in the case reported as P. Rajan v. Kerala State Electricity Board, (1997) 9 SCC 330 and our own hon'ble High Court given in the case reported as Raj Devi v. UOI, 145 (2007) DLT 438.
32. Sale deeds, Ex. RW2/2, RW2/4 and RW2/5, produced by the respondents are pertaining to same date, on the same floor adjacent to each Suit Number : 53/08.
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other in the same premises and purchasers of the same belongs to same family. These sale deeds are relating to constructed property along with facilities of heavy AC and roof rights. The same cannot be relied upon and are not fit to be taken as reflecting true market value as the nature of acquired land is totally different from the property sold under these sale deeds. Sale deed Ex. RW2/2 is relating to small shop whereas sale deed Ex.RW2/6 is situated at some distance and relates to residential property. Sale deeds Ex. RW2/2 to 6 produced by respondents, if are taken into consideration would, in fact, reduce the compensation amount already awarded by the Collector to a considerable extent which is not permissible in law and thus these sale deeds cannot become basis of assessing the market value of the acquired land in question. Otherwise also, if the contents of the award are seen then also it appears that Collector himself had not relied upon the same but assessed the compensation amount on basis of market rates as approved by the Government. Moreover, these sale deeds relate to smaller size constructed property or shops and not in respect to any vacant plots such like the acquired land in question and therefore are unfit to become base of calculation of approximate value of acquired land.
33. Accordingly, none of the sale deeds either produced by the petitioner or the respondents can be considered and are found not fit to determine the approximate market value of the acquired land in question. The various case laws cited relating to general tendency of the people to undervalue the sale consideration in sale deeds is not relevant to the present situation when the sale deeds of both parties are being rejected.
(iii) ABSENCE OF ANY VALUATION REPORT OR OTHER EVIDENCE Suit Number : 53/08.
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34. The petitioner has not examined any Government approved valuer, property dealer or real estate broker to determine the market value of the acquired land in question. How and on which basis, he is claiming sum of Rs.4 lacs per square meter as market rate on the date of notification is not disclosed. If any demand is raised then the basis of that demand should be also disclosed but here there is no evidence on record that there was any increase of prices in the area of Barakhamba Road at the relevant time of acquisition or what was the extent and percentage of that increase.
35. PW1, in his statement, has averred that he had consulted some brokers and conducted personal survey but has not disclosed the name of any such property broker nor it is revealed from whom he had made inquiries about the rates of land and depreciated value of the property. Request of the learned counsel for the petitioner to take judicial notice of the fact that from year 1997 to 2003, there was an escalation of prices of immovable properties in Delhi cannot be accepted because the burden to prove this issue was upon the petitioner in which he has failed. Otherwise also, there is no criteria available to find out the extent and degree of such alleged escalations. In the absence of any such evidence, there remains no other option except to follow the Government approved rates of land in the area where acquired land in question is situated and to give yearly appreciations as per settled law.
(iv) SCHEDULE OF MARKET RATES OF GOVERNMENT AND YEARLY APPRECIATION
36. The copy of Schedule of Market Rates issued on 16.04.1999 by the Ministry of Urban Affairs and Development (Land Division) is Ex.RW2/2. Under this Schedule, the Government has fixed prices of land in the different areas in Delhi State and as per this circular the land rate in Suit Number : 53/08.
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Barakhamba Road was assessed at Rs.57,960/- for commercial use valid till 31.03.2000. This land rate thereafter was not revised after 31.03.2000. LAC also has relied upon the same in his award and fixed the amount of compensation accordingly. Notification under section 4 of the Act was issued on 28.03.2003. LAC concerned at the time of passing of award had not given any appreciation of almost three years on these rates.
37. Hon'ble Delhi High Court in the case of Ajay Kumar v. Govt. of NCT of Delhi, WP (C) no. 2109/08 decided on 17-2-2009 has held that the circle rates though are meant for imposing minimum stamp duty purposes but can be relied upon if there is a close proximity of notification under section 4 of the Land Acquisition Act and there is no other evidence to determine the market value.
38. After rejecting the sale deeds, this fact is now not in dispute and in fact admitted one that except the schedule of market rate, there is no other criteria available on record to determine the market value of the acquired land. The learned counsel for the petitioner has relied upon case laws like Bedi Ram v. Union of India, 93 (2001) DLT 150, Rameshwar Solanki v. Union Of India, 57 (1995) DLT 410 and Delhi Simla Catholic Archdiocese v. Union Of India, 2002 VI AD (Delhi) 315 and has argued that normally 12% appreciation per year is given by the courts on proved sale deeds or established previous market rates etc. so at least this much appreciation should have been allowed to the petitioner even on the market value as fixed under the award. However, as per decision of the hon'ble Supreme Court given in Mehtab Singh v. State of Haryana, AIR 1995 SC 667, grant of 12% increase in price in each and every acquisition is not necessary. It depends upon the degree of escalation in the market.
Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
S.Tej Pratap Singh v. Union of India and another. -:: Page 19 of 30 ::-
39. The hon'ble Apex Court in the case reported as The General Manager, ONGC v. Rameshbhai Jivanbhai Patel, JT 2008 (9) SC 480 held that increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increase in rural areas would at best be around half of it, that is about 5% to 7.5% per annum, in the absence of evidence of sudden spurts or fall in prices.
40. The petitioner has not brought on record an iota of evidence regarding degree of escalation of land rates in any particular year or during acquisition proceedings but keeping in view the fact that Barakhamba Road is a prime commercial area located in metropolitan city of Delhi and the capital of India, the Court, by treating the same as urban area, deems it proper to give appreciation of 12% per annum. Accordingly, I am of the considered opinion that the LAC was required to give appreciation of almost three years (from 01.04.2000 to 28.03.2003) on the market value of Rs.57,960/-. The shortage of three days in completing the period of three years can be ignored and thus the appreciation for the complete three years period is liable to be taken into account.
41. The learned counsel for the petitioner has cited some judgments i.e. Udho Dass v. State of Haryana, MANU/SC/0717/2010, Hasanali Walimchand v. State of Maharashtra, 1998 (2) SCC 388, Land Acquisition Officer v. Smt. L. Kamalamma, AIR 1998 SC 781 and P. Ram Reddy v. Land Acquisition Officer, JT 1995 (1) SC 593 and has argued that potential value of the acquired land in near future be also appreciated and some enhancement on this account be also added but this request is rejected because the area where the acquired land is situated is Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
S.Tej Pratap Singh v. Union of India and another. -:: Page 20 of 30 ::-
already fully developed commercial area for the last few decades and will remain the same forever. There is therefore no further chance of its any other use superior to commercial purpose and no appreciation of the land in question is available for giving any other use. In fact, the acquired land has been used for benefit of general public for construction of metro rail station and not for any other commercial use. Therefore, these judgments are not applicable in the present facts and circumstances.
42. Hence, after giving yearly compounded appreciation at the rate of 12% per year on the Government approved rates, the market value of the acquired land in question is assessed as follows:
Ist year appreciation = Rs.57,960/- x 12% = Rs.
6,955.20
(01.04.2000 to 31.03.2001)
(Base market price as on 31.03.2001 = Rs.57,960/- + Rs.
6,955.20
=Rs. 64,915.20
paisa
2nd year appreciation = Rs.64,915.20 x 12% = Rs.
7789.824
(01.04.2001 to 31.03.2002)
(Base market price as on 31.03.2002 = Rs.64,915.20+ Rs.
7789.824
=Rs. 72,705.024
paisa
Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
S.Tej Pratap Singh v. Union of India and another. -:: Page 21 of 30 ::-
3rd year appreciation = Rs.72,705.024 x 12% =Rs.
8724.60
(01.04.2002 to 28.03.2003)
(Market price as on 28.03.2003 = Rs.72,705.024 + Rs.
8724.60
=Rs.81,429.62
paisa
43. Since three days are taken extra, so the round figure of compensation according to the market value of the acquired land in question should have been assessed at Rs.81,429/- per square meter. The compensation awarded to petitioner by LAC at the rate of Rs.57,960/- per square meter is inadequate and unreasonable. The petitioner is, accordingly, entitled to enhancement at Rs.23,469/- (Rs.81,429 - Rs.57,960) per square meter in respect of his acquired land.
(v) APPLICABILITY OF ANY DEDUCTION FROM THE COMPENSATION AMOUNT
44. The learned counsel for the respondents, while citing case law Special Tehsildar v. Smt. A. Mangala Gowri, AIR 1992 SC 666, Subh Ram v. Haryana, State 2010 I AD (SC) 619 and Kalawati Devi v. Haryana State, 1996 (2) Punjab Law Reporter 471 also have argued that deductions of atleast 50-60% should be made in case of any enhancement of value of acquired land but this plea is not acceptable. It is deposed by PW1 that all sorts of facilities and civic amenities were available in the acquired property which was touching on two sides and area was fully developed. This fact is not in dispute that the area was duly approved for commercial activities by the competent authorities as well as by Master Plan of Delhi. It Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
S.Tej Pratap Singh v. Union of India and another. -:: Page 22 of 30 ::-
was admittedly well connected with transport and telephone, electricity, water and sewerage facilities were provided therein. There was no further chance to develop the same in any manner. The hon'ble Supreme Court in the case reported as Bhagwathula Samanna v. Special Tehsildar, AIR 1992 SC 2298 held that deduction in land value is not warranted when it is already developed and every type of facilities are available in the vicinity. In such circumstances, no deduction from the compensation amount as assessed above is permissible.
45. Accordingly, this issue is decided in favour of the petitioner and against the respondents by holding that on the date of notification under section 4 of the Land Acquisition Act, LAC was required to take the amount of Rs.81,429/- per square meter as the market value of the acquired land in question.
ISSUE NUMBER 2
46. Issue number 2 is .......... Whether the petitioner is entitled to enhancement of compensation, if so,to what amount? OPP LOSSES
47. The petitioner, in his reference petition, has claimed compensation on various accounts such as loss of Rs.5 crores towards shifting of underground tank situated in the acquired land to side set back, loss on account of shifting of water, sewage and storm water connection from front side to rear side, total blockage of the alleged front entrance, distorted front face of the building, loss of Rs.3 crores per month due to non occupancy of the building and non availability of tenants because of absence of front passage, non availability of water, parking space etc., loss of Rs. 30 Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
S.Tej Pratap Singh v. Union of India and another. -:: Page 23 of 30 ::-
lakhs suffered towards compulsory electricity charges due to absence of occupancy and full use of electricity supply etc. The petitioner has also stated in his petition that value of his building has been reduced to an extent of 30% due to the acquisition proceedings roughly amounting to Rs.60 crores.
48. However, in his affidavit of evidence, the petitioner has only claimed compensation for the loss of distorted front portion and did not claim anything towards other losses as prayed for in the reference petition. He even did not utter any single word about those other losses which were referred to in detail in his reference petition. Even no proof of any such losses is brought on record by him. On the other hand, the petitioner has admitted in his cross examination that he has not filed any document regarding cost and expenses of underground water tank and its alleged shifting to another place. Non raising of any such claims in evidence clearly leads to the inference that averments made in reference petition in respect of various kinds of losses suffered were totally false and non existing because it is not the case of the petitioner that he is forgoing those other losses.
(i) WATER TANK
49. PW5 who is the chartered accountant of the petitioner has deposed that due to shifting/rebuilding the underground water tank of the capacity of 5 lakhs liters from the acquired portion to the side set back portion, sum of Rs.50 Lakhs were incurred. He has also deposed that due to construction of metro station, the building remained unoccupied causing loss of Rs.75-80 lakhs per month to the petitioner. He has also deposed about the loss caused due to non use of electricity and depreciation of value of building by 30-35%.
Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
S.Tej Pratap Singh v. Union of India and another. -:: Page 24 of 30 ::-
50. The statement of PW5 in respect of these above losses cannot be believed as in order to substantiate the same, no documentary evidence is brought on record. Even if for the sake of arguments, it is presumed that petitioner had filed such documents before LAC as alleged by PW5, then also he had the opportunity to summon the official of the concerned LAC to produce the same or can file on record its copies or could issue notice under Order 12 Rule 8 CPC to LAC to produce the same but no such steps were taken and thus an adverse inference has to be raised against the petitioner by presuming that no such documents as alleged ever existed.
51. PW5 is saying that underground water tank of capacity of 5 lakhs liters was shifted but the record of Delhi Fire Service Ex.PW3/2 reveals that total capacity of underground water tank was only 2.5 lakhs liters whereas letter Ex. PW3/3 points out that new shifted water tank was having capacity of only 3 lakhs liters. On the other hand, when the petitioner himself has not asked for any compensation for these losses in his own affidavit, then the deposition of this witness PW5 about such losses on basis of vague and general type of averments cannot be accepted. PW5, in his affidavit, has deposed that the expenses of Rs.50 lakhs in respect of shifting of underground water tank were incurred but in the petition, the petitioner has described these expenses at Rs.5 crores. It is also not disclosed from which person or company this alleged shifting was got done and how and in which manner the payment was made for doing such work. No witness has been examined from that agency or company which had done this alleged shifting work. It is also not disclosed when the alleged work of shifting of tank started and when it was completed. In absence of any such evidence, I do not find any ground to grant compensation on this account of alleged shifting of underground water tank.
Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
S.Tej Pratap Singh v. Union of India and another. -:: Page 25 of 30 ::-
(ii) LOSS DUE TO CONSTRUCTION AND NON OCCUPATION
52. Similarly it is also not disclosed what portion of which particular floor had remain unoccupied during the period when construction work of metro station was going on after the acquisition. How and on which basis this loss is assessed floor wise or portion wise is not disclosed and no breakup of the same is provided. No income tax or house tax return was filed to show the alleged losses suffered on this account. No rebate has been sought by the petitioner from NDMC in payment of house tax due to alleged non occupation of the building. Moreover the property in question was lease hold property and could not have been sold to any one by the petitioner so the question of non availability of buyers does not arise. Accordingly, the claim raised by PW-5 regarding suffering of this loss to the tune of Rs. 70-80 lakhs per month cannot be believed because in the petition, petitioner allegedly suffered losses of Rs. 3 crores per month on this account. In the later part of his cross examination, PW-5 admitted that even prior to the acquisition, building was lying vacant, so in such situation, the effect of acquisition proceedings cannot be blamed for sufferance of this loss. There is thus huge discrepancy in respect of amount of such alleged loss and it is difficult for the court either to believe the averments made in the petition preferred by petitioner or deposition of his witness PW-5 especially when petitioner himself is silent on this account.
(iii) UN-UTILIZED ELECTRICITY CONNECTION
53. Similarly no electricity bill of relevant period is placed on record regarding un-utilized electricity connection. No request was made to the electricity supplying company for rebate of compulsory electricity charges due to under utilization. Even there is no electricity bill on record to point out Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
S.Tej Pratap Singh v. Union of India and another. -:: Page 26 of 30 ::-
that petitioner was asked to pay Rs.2 lacs per month as minimum electricity charges for about three years. If PW5 is to be believed then it can be said that petitioner suffered the loss in respect of electricity charges amounting to Rs. 72 lacs (Rs.2 lacs per month or Rs.24 lacs per year x 3 years) whereas petitioner in his petition had described this loss at Rs.30 lacs only. PW5 did not know even what was the sanctioned load of electricity connection because in first line of paragraph number 10 of his affidavit, he has left blank about the sanctioned load. The statement of this witness that he was a qualified chartered accountant, working with petitioner for the last 20 years and was managing his financial interest cannot be accepted as no document has been produced on record in this regard. Due to huge discrepancies in the petition and in the statement of PW5, non claiming of any such loss by the petitioner in his own affidavit of evidence and unsupported claim raised on basis of vague and general averments compels this court to reject all these claims raised on behalf of petitioner.
(iv) LOSS FOR BLOCKED PASSAGE
54. The petitioner has alleged in his reference petition that front portion of the building was acquired which was facing Barakhamba Road and due to this his front passage was totally blocked because of which he was compelled to provide temporary/kachha passage from back side only and thus face of the building has been substantially distorted. If the letter Ex.PW3/1 is taken into consideration then it reveals that building has approach from backside (western side) also and the backside service road is 20 meter wide.
55. The petitioner has not brought on record sanctioned site plan of the building which could show what was the length of the front side of the Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
S.Tej Pratap Singh v. Union of India and another. -:: Page 27 of 30 ::-
building as well as there was no other big passage leading to the building except front side. There is no evidence that due to acquisition of land, the front passage was totally blocked and there was no possible entrance left for any vehicle or person to proceed towards main building. It is not brought on record what was the width of the exact passage prior to the acquisition and thereafter. PW5 has produced map Ex.PW5/2 though it was relating to shifting of underground tank but somehow it also shows location and position of the building. There is also one rough map forwarded along with the reference petition by LAC which point out that only 34 meters long front portion was acquired. If both the maps are correlated then it can be held that the acquired portion was situated somewhere in between the entry and exit gates of the premises. After deducting the length of acquired portion which constitute approximately 1/3rd of the total length, there remains about 2/3rd long stretch on front side which could be used for ingress and outgress as well as for parking of some vehicle. The averment of the petitioner, made in reference petition, that due to acquisition, his total passage from front side has been blocked appears to be incorrect. Otherwise also, the letter of Delhi Fire Service Ex.PW3/1 says that only maximum 16 cars could be parked in the area in between entry and exit gates though basement of building could accommodate more than 150 cars. Therefore, it can be said that no substantial loss has occurred to the petitioner for alleged depriving him of the parking space or alleged blocking of entire entry from Barakhamba Road side.
(v) DIMINISHED VALUE
56. The petitioner claimed that value of his building has reduced to an extent of 30% due to acquisition proceedings of alleged front portion and in this regard, he has consulted architects, brokers etc. The petitioner has not given names of any such architect or broker nor produced them in the Court Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
S.Tej Pratap Singh v. Union of India and another. -:: Page 28 of 30 ::-
nor any report prepared by them is brought on record. What was the approximate cost of the building and what could it fetch on the date of notification or thereafter, there is nothing on record in this regard. There is discrepancy also in this regard in the statements of PW1, PW5 as well as the petition filed by the petitioner. The petitioner, in his affidavit, has described this loss at 30% of the total cost of the building but neither disclosed what the quantum of this loss was or what the approximate cost of the whole building was. However, his reference petition says that this loss was about Rs.60 crores whereas PW5 says this loss at Rs.50 crores.
57. The petitioner has claimed that due to the construction of the metro, the MNCs and other commercial and business houses have shifted to the adjoining satellite cities of Delhi but he has not produced any witness from any MNC or commercial and business house to substantiate his averments. He has also not cared to produce any documentary evidence to the same effect also. His contention appears to be a bald averment which is unsubstantiated and therefore, cannot be taken into consideration.
58. Mere fact that some of the averments made by PW1 and PW5 have remained unrebutted due to non cross examination by itself is not sufficient to grant compensation as demanded and treat that unrebutted deposition as gospel truth. Petitioner should have been specific and must have given basis of such alleged losses with complete details but he has so failed.
59. Therefore, in such a situation, no damages for other heads, as claimed, can be allowed.
60. This issue is accordingly decided by holding that the petitioner is Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
S.Tej Pratap Singh v. Union of India and another. -:: Page 29 of 30 ::-
entitled to enhancement of compensation on account of land only and his other claims for compensation are declined.
ISSUE NUMBER 3
61. Issue number 3 is the relief.
62. In view of above discussions, the reference is disposed off by holding that compensation awarded to the petitioner at Rs.57,960/- per square meter by the LAC was inadequate and unreasonable. The petitioner was required to be paid compensation at the rate of Rs.81,429/- per square meter.
63. The petitioner is, therefore, entitled to enhancement of compensation to the tune of Rs. 23,469/- per square meter along with 30% solatium. He is also entitled to additional amount at the rate of 12% p.a. from the date of notification till the date of possession i.e. 28.03.2003 to 22.07.2003 as per provisions of section 23 (1-A) of the Act. The petitioner shall be entitled to the interest at the rate of 9% for first year from the date of taking of possession of land in question and 15% for subsequent years till the entire payment of compensation is made as per section 28 of the Act. The claims of the petitioner regarding the other different type of losses are rejected.
64. Copy of this order be sent to LAC for information and deposit of balance amount immediately to avoid further burden upon the Government exchequer.
65. The file be consigned to record room.
Announced in the open Court (NIVEDITA ANIL SHARMA) on this 06th day of July, 2011. ADJ-02, Wakf Tribunal, New Delhi.
Suit Number : 53/08.
Unique ID Number : 02403C0974282008.
S.Tej Pratap Singh v. Union of India and another. -:: Page 30 of 30 ::-