Delhi District Court
37.Sh. Chander Bhan (Deceased) vs . Union Of India & on 25 April, 2018
33.IN THE COURT OF SH. NEERAJ GAUR
34.ADDITIONAL DISTRICT JUDGE : ROHINI COURTS : DELHI
35.
36.LAC No. 261/16
37.SH. CHANDER BHAN (DECEASED) Vs. UNION OF INDIA &
ANR.
38.
39.THROUGH LRS
40.
41.1. SH. DHARAMBIR
42. S/O LATE SH. CHANDER BHAN
43.
44.2. SH. PAWAN KUMAR
45. S/O LATER SH. SATBIR
46. (IMPLEADMENT OF LRS VIDE ORDER DT.08-8-11)
47.
48. BOTH R/O VILLAGE & P.O. BARWALA
49. DELHI.
50. ....
PETITIONERS
Versus
51.1. UNION OF INDIA THROUGH
52. LAND ACQUISITION COLLECTOR,
53. NORTH WEST, KANJHAWALA, DELHI
54.
55.2. DELHI DEVELOPMENT AUTHORITY (DDA)
56. THROUGH
57. VICE CHAIRMAN
58. VIKAS SADAN, INA MARKET, NEW DELHI
........RESPONDENTS
Award No. 12/2005-06
Village BARWALA
Date of Award/ Date of
Announcement of Award 05-08-2005
LAC No.261/16 page 30 of 30
Notification U/S 4 F.11(19)/01/L&B/LA/20112
dt. 21-03-2003
Notification U/s 6 F.11 (11)/04/L&B/LA/28281
dt. 19-03-2004
59. Date of Possession 06-10-2005
60.
Date of Receipt of Reference : 23-04-2011
Date of Arguments :18-04-2018
Date of Decision: 25-04-2018
REFERENCE PETITION UNDER SECTION 18 OF THE
LAND ACQUISITION ACT 1894
AWARD:
(BY THE COURT U/S 26 OF LAND ACQUISITION ACT- 1894
ON REFERENCE PETITION U/S 18 OF THE ACT):
1. This reference under section 18 of Land Acquisition Act, 1894 (hereinafter called as LA Act), was sent to the reference court by the Land Acquisition Collector (hereinafter referred as LAC).
2. As per the LAC Award, a large tract of land measuring 6129 bigha 10 biswa and 10 biswansi of village Barwala, Delhi, was acquired by the Govt. for a public purpose namely "Rohini Residential Scheme, under Planned Development of Delhi". Notification under Section 4 of The Land Acquisition Act, 1894 (hereinafter referred to as 'LA Act') was issued on 21.03.2003. Declaration under Section 6 was made on 19.03.2004. Thereafter, Award bearing no. 12/2005-06/DC (NW) was LAC No.261/16 page 30 of 30 announced by Land Acquisition Collector (hereinafter referred to as LAC) on 05.08.2005. The LAC determined the market price of the acquired land as Rs.15,70,000/- per acre for land falling in Block 'A', Rs.14,00,000/- per acre for land falling in 'B' Block and Rs.12,30,000/- per acre for land falling in 'C' Block.
3. The petitioner being dissatisfied with the market value determined by the LAC, filed the present petition u/s 18 of the LA Act, seeking reference to this court. The Land Acquisition Collector forwarded the same to this court, for adjudication.
4. The brief facts of the petitioner's case are that he is the co-owner / co-bhumidar having ½ share of the land bearing khasra no. 7/7/1 (1-
16), 7/8 (4-16), 7/19 (3-18), 7/12 (4-16), 10/1 (4-16), 32/13 min (4-
11), 32/14 (4-16), 32/15 (4-16), 32/16/1 (2-00) total measuring 36 bighas 05 biswas situated within the Revenue Estate of Village Barwala, Delhi (the said land). The said land was acquired vide notification dated 21.03.2003.
5. The petitioners have preferred the present reference under section 18 of the Act essentially on the grievance that the market value of the acquired land has been erroneously determined at a low rate by the LAC so as to be Rs. 15.70 lacs/- per acre. Among the grounds urged in the petition are the assertions that :-
LAC No.261/16 page 30 of 30 a. LAC has assessed the compensation on the basis of conjunctures and surmises without looking at the actual market rate of land prevailing in the area. The said land is attached to the residential area of Rohini having a great market value which was overlooked by the LAC.
b. LAC also ignored that the said land is surrounded by Industrial area of Bawana and Narela developed by DSIDC, residential area of Rohini and Narela Sub-city and vicinity to GT road. c. LAC did not consider that in areas surrounding the said land. There are several godowns, farmhouses, private colonies and factories where the government has provided all civic amenities like road, buses, drainage, railways, electricity, school, college, hospital etc. d. The said land is quite levelled and fit for residential/ commercial industry and its market value could not be less than Rs.5,000/- per square yards.
e. The adjoining lands developed by DSIDC has been allotted @ more than Rs.10,000/- per square yards that was not taken into account by the LAC while fixing the market value. f. LAC ignored that the said land was very fertile and was producing atleast three crops in one year. The said land was connected with nearby canal through a water course.
LAC No.261/16 page 30 of 30 g. The LAC had taken into account the indicative price effective on 01.04.2001 but he did not give any increase thereon till the date of the notification.
h. No compensation has been awarded for the two tubewell fitted with diesel engine on the said land.
6. The case of the petitioner can be summed up by stating that the award was bad due to inadequacy of compensation and incorrect assessment of market value of land inter-alia due to non-consideration of relevant factors like potentiality and fertility of the suit land, the surrounding colonies and developed areas, the market value of the adjoining areas/villages, the sale deeds of other lands of the contemporary period, nearness to the National Highway and industrial areas, non-consideration of the amenities available in the suit land etc.
7. The petitioner prayed the compensation as under:
a) compensation @ Rs.5,000/- per square yard regarding his land besides interest @ 30% per annum and solatium as per law;
b) Rs.80,000/- per bigha as damages towards severance;
c) Rs. 2,00,000/- for the cost of boring the tubewell and the equipments;
d) Rs.4,00,000/- damages for compulsory acquisition;
e) Rs.5,00,000/- on account of change of business;
LAC No.261/16 page 30 of 30
f) Interest @ 18 % p.a. without any TDS;
g) Alternate Plot.
8. The respondent no.1/the Union of India (UOI)/Land Acquiition Collector contested the reference petition by filing the Written Statement. The petition has been contested mainly on the ground that the LAC awarded adequate compensation to the petitioner after taking into consideration all the relevant factors. LAC has correctly assessed the market value of the land after taking into account the market rates prevailing at the time of notification under Section 4 of LA Act. They have stated that the said land was not surrounded by any developed or under-developed colony and could be used for only agricultural purposes. The LAC, in order to assess the fair market value, adopted the Indicative Price fixed by the government for the agricultural land as on 01.04.2001. The indicative price was Rs.15,70,000/- for block A land and the fair market value was correctly assessed.
9. On its part, the DDA i.e. respondent No.2 made averments almost identical to those of respondent No.1 in its written statement.
10. During admission-denial of documents, the counsel for petitioner admitted the statement given u/s 19 of the Act. The following issues were framed on 21.09.2011 :-
I)Whether the petitioner is entitled to enhancement in LAC No.261/16 page 30 of 30 compensation, if so, to what amount?
II) Relief.
EVIDENCE
71.
72.
11. In evidence, the petitioner examined 12 witnesses. PW-2 Sh.Ishwar Das was the Kanoogo from Land and Building Department who brought the attested copies of letters of various dates from 1990 to 2008 for fixation of minimum price of the agricultural land in UT of Delhi. The letters are marked as Ex.PW2/1 (colly).
12. PW-3 Sh.Devender Singh was the UDC from Sub-registrar Office who brought the record regarding registration of 2 sale deeds dated 25.04.2001 and one sale deed dt 21.10.1998, marked as Ex.PW3/1 to Ex.PW3/3.
13. PW Sh.R.A.Sharma was the UDC from DDA who brought the record regarding a perpetual lease deed dated 09.03.1999 of plot No.34, pocket -16, sector- 20, Rohini. The same is marked as Ex.PW4/1.
14. Sh.Sanjay Kumar from DSIDC brought the record regarding two letters Ex.PW5/1 and Ex.PW5/2.
15. PW-6 Sh.Govind Kumar Sharma from DDA brought a Demand cum Allotment letter dated 01.06.2009 and 05.06.2009 with regard to the allotment of land for construction of a Heli pad at Sector-36 LAC No.261/16 page 30 of 30 Rohini. The documents are Ex.PW6/1 and Ex.PW6/2.
16. PW-7 Sh.Mishri Lal from Horticulture Department did not bring the summoned record and his statement was not concluded. In his place, Sh. K.R.Maan/ PW-9 brought the record i.e. the certified copy of monthly report Ex.PW9/1 to Ex PW9/3 regarding cultivation of fruits and vegetables. He deposed that the reports were prepared after making surveys in all 66 villages falling in Alipur block.
17. PW-8 Sh.Swaran Kumar, Halka Patwari brought the Aks Sizra of village Barwla Ex.PW8/1 and the Khasra Girdawari for the year 2004
-05. This witness further deposed that village Pooth Khurd touches the boundary of village Barwala on the North West side. Whereas village Khera Khurd touches the boundary in North and East side. Village Pehladpur and Pansali touches the boundary of village Barwala on the East side. Village Karala touches the boundary on the South side. He also deposed that a canal passes through village Barwala and three main roads were connected with village Barwala.
18. PW-10 Sh.Parvinder Singh from DSIDC brought the details of expenses incurred for development of Bawana Industrial Area, Phase I, Pooth Khurd, Holambi Khurd and Holambi Kalan. The report filed by him is Ex.PW10/1.
19. PW-11 Ms.Usha Chaturvedi from Land and Building Department LAC No.261/16 page 30 of 30 did not bring the complete record and her statement was not concluded. In her place, Sh.Dhiraj Maan/ PW-12 brought the record i.e. the Indicative Price policy dated 30.05.1990, 25.07.1997, 09.08.2001 ( marked as Ex.PW12/1) and dated 09.08.2008 (marked as Ex.PW12/2).
20. Petitioner examined himself through affidavit Ex.PW1/1. He reiterated his case on oath.
21. The petitioner closed his evidence on 13.01.2016. Despite opportunity none of the respondent led any evidence.
22. Final arguments were addressed at length by the respective counsels who relied upon their own documents and a multitude of precedents.
23. The arguments of the petitioner, for canvassing the enhancement of market value of the land, can be sub-divied into following categories:
A. Parity on the basis of the sale deeds of other lands (Ex.PW3/1 to Ex.PW3/3);
B. Parity with the market value and circle rates of surrounding areas of Bawana Industrial Area, developed and allotted by DSIDC/DDA (PW5 & PW10);
C. Proposed development of Heli Pad in Rohini (PW6);
D. Agriculture produce from the land in dispute (PW9);
LAC No.261/16 page 30 of 30
24. Indicative prices of agriculture lands in Delhi (PW 12 & PW2).
LEGAL PROVISIONS
25. Section 23 of the Land Acquisition Act, 1894 deals with matters to be considered in determining compensation:-
23. Matters to be considered in determining compensation -(1) In determining the amount of compensation to be awarded for land acquired under this Act, the court shall take into consideration-
first, the market value of the land at the date of the publication of the notification Under Section 4, Sub-section (1).
secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof;
thirdly, the damage (if any, sustained by the person interested , at the time of the Collector's taking possession of the land, by reason of severing such land from his other land;
fourthly, the damage (if any), sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;
fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration Under Section 6 and the time of the Collector's taking possession of the land.
(1A) In addition to the market value of the land above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification Under Section 4, Sub-section (1), in respect of such lend to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
Explanation- In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded. (2) In addition to the market-value of the land, as above provided the court shall LAC No.261/16 page 30 of 30 in every case award a sum of thirty per centum on such market-value, in consideration of the compulsory nature of the acquisition." Section 24 of Land Acquisition Act, 1894 with regard to the matters to be neglected in determining the compensation:-
"24. Matters to be neglected in determining compensation. - But the Court shall not take into consideration-first, the degree of urgency which has led to the acquisition;
secondly, any disinclination of the person interested to part with the land acquired;
thirdly, any damage sustained by him which, if caused by a private person, would not render such person liable to a suit;
fourthly, any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration under section 6, by or in consequence of the use to which it be put;
fifthly, any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired;
sixthly, any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired, will be put;
seventhly, any outlay or improvements on, or disposal of, the land acquired, commenced, made or effected without the sanction of the Collector after the date of the publication of the [notification under section 4, subsection(1); [or] eighthly, any increase to the value of the land on account of its being put to any use which is forbidden by law or opposed to public policy."
Sale Deeds/Exemplars
26. Before considering this aspect, it will be apposite to note down the observations made in a recent judicial pronouncements on the subject. The Hon'ble Delhi High Court, in Bhola Nath Sharma Through Lrs. vs Union Of India Through Lac & Anr. on 23 March, 2016 LA APP. Nos.109/2013 & 76/2013 made observations, relevant to the context in hand. The LAC No.261/16 page 30 of 30 relevant extracts are reproduced herein below:
"65. The law with respect to calculation of the market value of the acquired land and the compensation to be given to the landlords is well established. Section 23 of the Act clearly lays downs the principles.
66. Market value of the land means what a willing purchaser would pay to a willing seller for the property having regard to the advantages available to the land and the development activities which may be going on in the vicinity and the potentiality of the land.
67. While fixing the market value of the acquired land, what are required to be kept in mind are the geographical situation of the land; the existing use of the land and the location as well as other advantages appurtenant to the land. The market value of the other land situated in the same locality or adjacent locality would also be an important factor for determination of the reasonable market value of the acquired land.
68. In Viluben Jhalejar Contractor vs. State of Gujarat, (2005) 4 SCC 789, the Supreme Court laid down the following principles for determination of market value of the acquired land:-
17. Section 23 of the Act specifies the matters required to be considered in determining the compensation; the principal among which is the determination of the market value of the land on the date of the publication of the notification under sub- section (1) of Section 4.
18. One of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor. It is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not.
19. Market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase.
Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, other sale instances as well as other evidences have to be considered.
20. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-à- vis the land under acquisition by placing the two in juxtaposition. ............................."
27. In Jai Singh v UOI in LA Appeal No 266/08 decided by LAC No.261/16 page 30 of 30 the Delhi High Court on 23.08.2011, Hon'ble Justice Pradeep Nandrajog made the following observations:
"22. As held in the decisions reported as 1995 (1) SCC 717 Land Acquisition Officer Eluru & Ors. Vs. Jsti Rohini & Anr. (Refer para 6) and 2009 (14) SCC 369 Mohd. Raufuddin Vs. Land Acquisition Officer (Refer para 13) sale transactions evidenced in a sale deed which are tendered in evidence by virtue of Section 51A of the L.A.Act 1894 have not to be ipso facto treated as an exemplar sale deed to determine the market value of land in an area for the reason there may be special circumstances which have led the buyer to pay a higher price. The true test is the price which a well informed willing buyer would pay to an equally well informed seller without being influenced by any special circumstances or the fancy to buy a particular piece of land. An informed buyer would be one who has studied the market and has apprised himself of all available land in the area; has understood the topology of the area and the prevailing prices. If a buyer has a fancy for a particular piece of land, he may pay a much higher price and this would not be a good index of fair market value of the lands in the area. I would be failing if I do not highlight that the Union of India had relied upon the sale deed dated 20.5.2002, which was accepted by the learned Reference Court pertaining to the notification dated 27.1.2003 where-under agricultural land in village Rajapur Kalan was sold by an agriculturist to an agriculturist for a much lesser price i.e. `17,74,109/- per acre as against the price which comes to `63.478 lakhs per acre for Ex.PW-1/2 and `28.89 lakhs per acre for Ex.PW-1/3. The 2 sale deeds Ex.PW-1/2 and Ex.PW-1/3, themselves are having intrinsic evidence of the fanciful price and ex-facie destroy each other."
28. The first foundational argument on behalf of the petitioner is that the LAC ignored the sale deeds/ market value of the land of the surrounding areas. The first set of documents relied upon by the petitioners for canvassing a higher market value to be assessed for the acquired land in question were Ex.PW3/1 to Ex.PW3/3. He highlighted that the sale deed dated 25.04.2001(ExPW3/1) is in respect of 2 bigha 19 biswas of land of village Khera Khurd that was sold for Rs.32.40 lacs. The second sale deed is also dated 25.04.2001(ExPW3/2) and is in respect of 10 Biswas of land of LAC No.261/16 page 30 of 30 village Khera Khurd that was sold for Rs.4 lacs. The last sale deed is dated 21.10.1998 (Ex PW3/3). In this sale deed, 9 bigha 12 biswas of land of village Karala was sold out for Rs.44 lacs.
29. It was the contention of the Ld. Counsel for the petitioners that the LAC had conducted a perfunctory enquiry by not taking into account the location of the acquired land near the NH1 and also the real/prevailing market value of similarly situated land/properties in the immediate vicinity. Relying extensively upon the three sale deeds, Ld.counsel for petitioner contended that the value of land of village Karala was Rs.22 lacs per acre as on 21.10.1998. The value of land of Khera Khurd was Rs.55-60 lacs per acre as on 25.04.2001. He submitted that all the aforementioned villages are either adjacent or nearby the village Barwala and the land of the petitioner could very well fetch the market rate of Rs.70 lacs per acre on the date of notification u/s 4 of the LA Act.
30.Ld. counsel for the respondent/UOI vehemently militated against the argument of the petitioner and counter argued that the sale deeds, relied by the petitioner, deserve to be discarded on following two counts:-
a) lack of proximity of LAC No.261/16 page 30 of 30 situation/distance from Village Barwala
b) lack of proximity of time from the notification u/s. 4 of the LA Act.
31.The ld counsel for the Union of India submitted that the court is required to determine the real market value and not be swayed by self serving and lay documents relied upon by the petitioners to support an inflated claim.
Extensive reliance was placed by the Ld. Counsel on the decision in Lal Chand vs Union of India & Anr. AIR 2010 SC 170 and two other decisions inter alia State of UP & Anr. Vs Rajender Singh AIR 1996 SC 1564 and Bhola Nath & Ors vs Union of India 1998 VI AD (Delhi) 159.
32. Garnering support from the decision in Lal Chand case (Supra), Ld counsel for Union of India amplified his argument that the sale deeds relied upon by a petitioner in a reference under section 18 of the LA Act could be trusted by the court only if the land was comparable in its location and use with the acquired land. In this context, the Ld counsel elaborated that none of the documents (Ex.PW3/1 to Ex.PW3/3) relied upon by the petitioners were indicative of land similar to the acquired land.
LAC No.261/16 page 30 of 30
33. In the light of the dictum of the Superior Courts, I will now proceed to analyze the sale deeds. With the perspective that the drawing of a nexus between the lands cited in the tendered sale deeds and the acquired land is the sine qua non for meriting reliance on the consideration amounts mentioned in such sale deeds, the court shall scrupulously examine the documents Ex. PW3/1 to Ex PW3/3.
34. The two Sale Deeds Ex PW3/1 and Ex PW3/2 are in respect of land of village Khera Khurd. Both of them are not a good exemplers for the following reasons:
a) both of them are of 25.04.2001 and not close to the date of notification on 27.01.2003;
b) the vendors in both were a religious society namely "The Society Franciscan Brothers Khera Khurd" and vendee was also a similar society namely "The Society Of Sisters of Destitude, Jivodaya Hospital". Such sale deeds are not a reliable exempler in view of the decision in Jai Singh Case (supra) because prima facie, the vendees are having fancing for the land;
c) the sale deed pertains to an adjoining village and there is nothing on record that the lands are comparable.
LAC No.261/16 page 30 of 30
35. The third sale deed of 21.10.1998 Ex.PW3/3 is in respect of land of village Karala. It is also not a good exemplar for the following reasons:
a) the sale deed pertains to an adjoining village and there is nothing on record that the lands are comparable;
b) the Vendee is religious institution " Radha Soami Satsang Beas"
as such the sale deed is not a reliable exempler in view of the decision in Jai Singh Case (supra) because the vendee is prima facie having fancing for the land;
c) This sale deed is also remote in time from the notification of 21.03.2003.
36. In view of the foregoing discussion, I may conclude that the sale deeds relied by the petitioner are not reliable for assessing the fair market value of the petitioner's land.
Parity with the land developed and allotted by DSIDC/DDA
37. Having addressed the first method of assessment proposed by the petitioner, I will now proceed to decide next leg of the argument of the counsel for the petitioners which was that the DSIDC and DDA made allotments of other nearby land at much LAC No.261/16 page 30 of 30 higher prices and the circle rates prevailing at the time of the acquisition were much higher. Deriving support from the evidences brought by PW4 (Perpetual Lease Deeds) & PW5 (allotment made by DSIDC), it was argued that the land of the petitioner deserved higher market value.
38. For taking guidance on this aspect, the court would again advert here to the decision in Lal Chand (Supra) wherein the Apex Court rejected any indicative/authoritative value to the rates published in such schedules. Reference may specifically be made to the following excerpts from the said decision.
"7. On careful consideration, we are of the view that such allotment rates of plots adopted by Development Authorities like DDA cannot form the basis for award of compensation for acquisition of undeveloped lands for several reasons. Firstly market value has to be determined with reference to large tracts of undeveloped agricultural lands in a rural area, whereas the allotment rates of development authorities are with reference to small plots in a developed lay out falling within Urbana. Secondly DDA and other statutory authorities adopt different rates for plots in the same area with reference to the economic capacity of the buyer, making it difficult to ascertain the real market value, whereas market value determination for acquisitions is uniform and does not depend upon the economic status of the land loser. Thirdly we are concerned with market value of freehold land, whereas the allotment "rates" in the DDA Brochure refer to the initial premium payable on allotment of plots on leasehold basis. We may elaborate on these three factors.
8. First factor: The percentage of 'deduction for development' to be made to arrive at the market value of large tracts of undeveloped agricultural land (with potential for development), with reference to the sale price of small developed plots, varies between 20% to 75% of the price of such developed plots, the percentage depending upon the nature of development of the lay out in which the exemplar plots are situated. The 'deduction for development' consists of two components. The first is with reference to the area required to be utilised for developmental works and the second is the cost of the development works. For example if a residential layout is formed by DDA or similar statutory authority, it may utilise around 40% of the land area in the layout, for roads, drains, parks, play grounds and civic amenities (community facilities) etc. The Development Authority will LAC No.261/16 page 30 of 30 also incur considerable expenditure for development of undeveloped land into a developed layout, which includes the cost of levelling the land, cost of providing roads, underground drainage and sewage facilities, laying waterlines, electricity lines and developing parks and civil amenities, which would be about 35% of the value of the developed plot. The two factors taken together would be the `deduction for development' and can account for as much as 75% of the cost of the developed plot. On the other hand, if the residential plot is in an unauthorised private residential layout, the percentage of `deduction for development' may be far less. This is because in an un-authorized lay outs, usually no land will be set apart for parks, play grounds and community facilities. Even if any land is set apart, it is likely to be minimal. The roads and drains will also be narrower, just adequate for movement of vehicles. The amount spent on development work would also be comparatively less and minimal. Thus the deduction on account of the two factors in respect of plots in unauthorised layouts, would be only about 20% plus 20% in all 40% as against 75% in regard to DDA plots. The `deduction for development' with references to prices of plots in authorised private residential layouts may range between 50% to 65% depending upon the standards and quality of the layout. The position with reference to industrial layouts will be different. As the industrial plots will be large (say of the size of one or two acres or more as contrasted with the size of residential plots measuring100 sq.m. to 200 sq.m.), and as there will be very limited civic amenities and no playgrounds, the area to be set apart for development (for roads, parks, playgrounds and civic amenities) will be far less; and the cost to be incurred for development will also be marginally less, with the result the deduction to be made from the cost of a industrial plot may range only between 45% to 55% as contrasted from 65 to 75% for residential plots. If the acquired land is in a semi-developed urban area, and not an undeveloped rural area, then the deduction for development may be as much less, that is, as little as 25% to 40%, as some basic infrastructure will already be available. (Note: The percentages mentioned above are tentative standards and subject to proof to the contrary).
9. Therefore the deduction for the 'development factor' to be made with reference to the price of a small plot in a developed lay out, to arrive at the cost of undeveloped land, will be for more than the deduction with reference to the price of a small plot in an unauthorized private lay out or an industrial layout. It is also well known that the development cost incurred by statutory agencies is much higher than the cost incurred by private developers, having regard to higher overheads and expenditure. Even among the layouts formed by DDA, the percentage of land utilized for roads, civic amenities, parks and play grounds may vary with reference to the nature of layout - whether it is residential, residential- cum-commercial or industrial; and even among residential layouts, the percentage will differ having regard to the size of the plots, width of the roads, extent of community facilities, parks and play grounds provided. Some of the layouts formed by statutory Development Authorities may have large areas earmarked for water/sewage treatment plants, water tanks, electrical sub-stations etc. in addition to the usual areas earmarked for roads, drains, parks, playgrounds and community/civic amenities. The purpose of the aforesaid examples is only to show that the `deduction for development' factor is a variable percentage and the range of percentage itself being very wide from 20% to 75%.
LAC No.261/16 page 30 of 30
10. Second factor: DDA and other statutory development authorities adopt different rates for allotment, plots in the same layout, depending upon the economic status of the allottees, classifying them as high income group, middle income group, low income group, and economically weaker sections. As a consequence, in the same layout, plots may be earmarked for persons belonging to economically weaker section at a price/premium of Rs. 100/- sq.m, whereas the price/premium charged may be Rs.150/- per sq.m for members of low income group, Rs.200/- per sq.m for persons belonging to middle income group and Rs. 250/- per sq. m. for persons belonging to High income groups. The ratio of sites in a layout reserved for HIG, MIG, LIG and EWS may also vary. All these varying factors reflect in the rates for allotment. It will be illogical to take the average of the allotment rates, as the 'market value' of those plots, does not depend upon the cost incurred by DDA statutory authority, but upon the paying capacity of the applicants for allotment.
11. Third factor: Some development authorities allot plots on freehold basis, that is by way of absolute sale. Some development authorities like DDA allot plots on leasehold basis. Some have premium which is almost equal to sale price, with a nominal annual rent, whereas others have lesser premium, and more substantial annual rent. There are standard methods for determining the annual rental value with reference to the value of a freehold property. There are also standard methods for determining the value of freehold (ownership) rights with reference to the annual rental income in regular leases. But it is very difficult to arrive at the market value of a freehold property with reference to the premium for a leasehold plot allotted by DDA. As the period of lease is long, the rent is very nominal, some times there is a tendency among public to equate the lease premium rate (allotment price) charged by DDA, as being equal to the market value of the property. However, in view of the difficulties referred to above, it is not safe or advisable to rely upon the allotment rates/auction rates in regard to the plots formed by DDA in a developed layout, in determining the market value of the adjoining undeveloped freehold lands. The DDA brochure price has therefore to be excluded as being not relevant.
Whether the circle rates/guideline value rates can be relied upon to determine the market value?
12. The appellant relied upon the notification dated 21.1.1981 issued by the Land Division of Government of India, Ministry of Works and Housing, notifying the Schedule of Market Rates of land in different parts of Delhi and various outlying areas - showing the minimum rates Rs.400/- per sq. yard for residential and Rs.800/- sq. yard for non- residential plots. The question is whether the same could be relied upon for determination of market value in regard to land acquisition. When the matter came up before this Court in the earlier round, the counsel for the appellant had conceded that such rates could not form the basis for determining the market value of the acquired lands. In spite of it, the learned counsel for appellant submitted before us that though the said circle rates cannot be the basis for determining the market value, it may be taken note of as one of the relevant pieces of evidence indicative of the market value. There is some confusion as to whether such basic rates/guideline value/minimum registration value rates could form the basis for determining the market value.
LAC No.261/16 page 30 of 30
13. This Court in Jawajee Nagnatham v. Revenue Divisional Officer [1994 (4) SCC 595] and several cases following it, including Land Acquisition Officer, Eluru vs Jasti Rohini [1995 (1) SCC 717], U.P. Jal Nigam, Lucknow through its Chairman vs M/s. Kalra Properties (P) Ltd. Lucknow [1996 (3) SCC 124] and Krishi Utpadan Mandi Samiti Sahaswan v. Bipin Kumar [2004 (2) SCC 283] held that maket value under section 23 of LA Act cannot be fixed on the basis of the rates mentioned in the Basic Valuation Registers' maintained for the purpose of detection of undervaluation and collection of proper stamp duty. 13.1) In Jawajee Nagnatham, the land owners had appealed to the Andhra Pradesh High Court against the order of Reference Court, claiming increase, relying up on the market value entered in the Basic Valuation Register maintained by the Revenue Authorities under the Stamp Act. The High Court rejected the claim based on the Basic Valuation Register, as such Register had no evidentiary value or statutory basis. In appeals by the land owners, this Court held that the Basic Valuation Register was maintained for the purpose of collecting stamp duty under Section 47A of the Indian Stamp Act, 1899 (as amended in Andhra Pradesh); that Section 47A conferred no express power to the Government to determine the market value of the lands prevailing in a particular area, village, block, district or region and to maintain Basic Valuation Register for levy of stamp duty in regard to instruments presented for registration; that there was no other statutory provision or rule having statutory force providing for maintaining such Valuation Register; and therefore, such Register prepared and maintained for the purpose of collecting stamp duty had no statutory base or force and cannot form the basis to determine the market value of any acquired land under Section 23 of the LA Act. Jasti Rohini also arose from Andhra Pradesh and followed Jawajee Naganatham and held that the Basic Valuation Register had no statutory basis. 13.2) The case of U.P. Jal Nigam arose from Uttara Pradesh. In that case, the land owner filed a writ petition seeking a direction to U.P. Jal Nigam to pay compensation in regard to lands acquired on the basis of market value assessed by the Collector, Lucknow. The High Court allowed the petition and directed the U.P. Jal Nigam to pay compensation at the rate determined by the Collector, on the basis of the basic valuation circulars issued for purposes of stamp duty. This Court reversed the decision of the High Court following its earlier decision in Jawajee Naganatham and held that the Collector committed an error in determining the market value on the basis of Basic Value Circulars. Jawajee Naganatham was again followed in Bipin Kumar, which is another case from Uttar Pradesh. 13.3) All the four decisions rejected the value entered in the Basic Valuation Registers, on the ground that they had no statutory basis having regard to the provisions of stamp law applicable in the respective States (Andhra Pradesh and Uttar Pradesh) and cannot be the basis for determination of market value under Section 23 of LA Act.
14. There are also another set of decisions considering such circle rates could be considered as prima facie basis, for purposes of ascertaining the market value and determining whether there was any undervaluation of the instrument for purposes of stamp duty, which is a revenue collection exercise. We may refer to one of those cases, that is Ramesh Chand Bansal v. District Magistrate/Collector, Ghaziabad [1999 (5) SCC 62], wherein this Court held :
LAC No.261/16 page 30 of 30 "Reading S. 47-A with the aforesaid R. 340-A it is clear that the circle rate fixed by the Collector is not final but is only a prima facie determination of rate of an area concerned only to give guidance to the Registering Authority to test prima facie whether the instrument has properly described the value of the property. The circle rate under this Rule is neither final for the authority nor to one subjeted to pay the stamp duty. So far sub-sections (1) and (2) it is very limited in its application as it only directs the Registering Authority to refer to the Collector for determination in case property is under-valued in such instrument. The circle rate does not take away the right of such person to show that the property in question is correctly valued as he gets an opportunity in case of under-valuation to prove it before the Collector after reference is made."
15. In R. Sai Bharathi v. J. Jayalalitha [2004 (2) SCC 9], while examining the issue in the context of a case relating to disproportionate assets, this Court held :
"The guideline value is a rate fixed by authorities under the Stamp Act for purposes of determining the true market value of the property disclosed in an instrument requiring payment of stamp duty. Thus the guideline value fixed is not final but only a prima facie rate prevailing in an area. It is open to the registering authority as well as the person seeking registration to prove the actual market value of property. The authorities cannot regard the guideline valuation as the last word on the subject of market value. x x x x This scheme of the enactment and the Rules contemplate that guideline value will only afford a prima facie basis to ascertain the true or correct market value. Undue emphasis on the guideline value without reference to the setting in which it is to be viewed will obscure the issue for consideration. It is clear, therefore, that guideline value is not sacrosant as urged on behalf of the appellants, but only a factor to be taken note of, if at all available in respect of an area in which the property transferred lies."
16. It should however be noted that as contrasted from the assessment of market value contained in non-statutory Basic Value Registers, the position may be different, where the guideline market values are determined by Expert Committees constituted under the State Stamp Law, by following the detailed procedure laid down under the relevant rules, and are published in the State Gazette. Such state stamp Acts and the Rules thereunder, provide for scientific and methodical assessment of market value in different areas by Expert Committees. These statutes provide that such committees will be constituted with officers from the Department of Revenue, Public Works, Survey & Settlement, Local Authority and an expert in the field of valuation of properties, with the sub- registrar of the sub-registration district as the member secretary. They also provide for different methods of valuation for lands, plots, houses and other buildings. They require determination of the market value of agricultural lands by classifying them with reference to soil, rate of revenue assessment, value of lands in the vicinity and locality, nature of crop yield for specified number of years, and situation (with reference to roads, markets etc.). The rates assessed by the committee are required to be published inviting objections/suggestions from the members of public. After considering such objections/suggestions, the final rates are published in the Gazette. Such published rates are revised and updated periodically. When the guideline market values, that is, minimum rates for LAC No.261/16 page 30 of 30 registration of properties, are so evaluated and determined by expert committees as per statutory procedure, there is no reason why such rates should not be a relevant piece of evidence for determination of market value. One of the recognised methods for determination of market value is with reference to opinion of experts. The estimation of market value by such statutorily constituted expert committees, as expert evidence can therefore form the basis for determining the market value in land acquisition cases, as a relevant piece of evidence. It will be however open to either party to place evidence to dislodge the presumption that may flow from such guideline market value. We however hasten to add that the guideline market value can be a relevant piece of evidence only if they are assessed by statutorily appointed Expert Committees, in accordance with the prescribed assessment procedure (either street-wise, or road-wise, or area-wise, or village-wise) and finalised after inviting objections and published in the Gazette. Be that as it may. We have referred to this aspect only to show that there are different categories of Basic Valuation Registers in different states and what is stated with reference to the stamp law in Andhra Pradesh or Uttar Pradesh, may not apply with reference to other states where state stamp laws have prescribed the procedure for determination of market value, referred to above.
17. In this case, there is nothing to show the circle rates have been determined by any statutorily appointed committee by adopting scientific basis. Hence, the principle in Jawajee Naganatham will apply and they will not be of any assistance for determining the market value. Further, they do not purport to be the market value for lands in rural areas on the outskirts of Delhi, nor the market values relating to Rithala village. The circle rates relate to urban/city areas in Delhi and are wholly irrelevant. Whether the award relating to acquisition on 24.10.1961 is relevant."
39. The ratio laid down in Lal Chand's case is unambiguous that the rates fixed by authorities like DDA and DSIDC or for that matter the circle rates fixed by the government agencies are not a good guide for determining the market value of a land. The court thus finds that the petitioner has not been able to establish the principle canvassed by him inter alia that the area of the acquired land be treated at par with the areas allotted by DDA/DSIDC for determining a higher market value than what was assessed by the LAC in the Award.
LAC No.261/16 page 30 of 30
YIELD BASED ASSESSMENT
40. The extended reliance of the petitioner is the contention that the yield of the acquired land was from Rs. 1 to Rs. 1.25 lacs per bigha per year. Reliance has been placed on the testimony of PW-9 Sh. K.R. Mann who was from the Horticulture Department. He had brought the monthly reports dated 31.03.2004, 31.03.2005 & 31.03.2006 (Ex PW9/1 to 3) regarding the vegetable production. I have perused the report which gives the area under vegetable production and the actual vegetable production in the Alipur Block. The question before the court is whether such report can be acted upon for ascertaining the yield of petitioner's land?
41. As regards the yield from the land of the petitioner, Ld. Counsel for Union of India argued that the indicative prices of agricultural land inhere the agricultural produce expected from the land. He submitted that LAC had adopted the indicative price method for determining the market value and had rightly determined the same. He further argued that the indicative prices are fixed by the government on the basis of opinions of expert committees after extensive surveys.
42. The petitioner, apart from his oral claim of earning from the land from Rs. 1 to 1.25 lacs, has not placed on record any LAC No.261/16 page 30 of 30 document to corroborate his claim. The petitioner was having ½ share in 36 Bighas and 05 Biswas of land and as per his own claim, his income should be Rs. 18 to 20 lacs per year. He has, however, not placed on record any document showing the sale of such high volume of agricultural produce. No proof of any expenditure regarding employment of staff, electricity, irrigation, purchase of diesel, use of any tractor etc. has been filed. No proof of making any payment to any government agency for extracting water from any canal has been filed. The unsubstantiated and uncorroborated claim of petitioner to the compensation on the basis of yield does not appear to be reliable method for determining the market value. The reports filed by PW-9 are also not reliable because the income from the specific land of the petitioner was the better criteria and not the general report based on survey of sample lands.
43. Having addressed the contention of the petitioner regarding yield basis assessment, this court is still tasked with the duty to determine the correct market value of the land. The LAC determined the market value as on 21.03.2003 on the basis of indicative prices effective on 01.04.2001. Certainly, the LAC has not given any enhancement in value from 01.04.2001 to 21.03.2003. For this very reason, the market value assessed by the LAC can not be LAC No.261/16 page 30 of 30 considered as the fair market value.
44. Ld. Counsel for petitioner argued that the land falling in Village Barwala should be treated at par with the land of the 10 villages involved in Jai Singh's case because the topography of village Barwala and other villages are the same.
45. The Hon'ble Delhi High Court, in Jai Singhs case decided the market value of lands of 10 villages. As per the deposition of PW- 8 Sh. Swaran Kumar, Halka Patwari and as per the Aks Sijra Ex PW 8/1, four of these ten villages are touching the boundaries of village Barwala. The notifications involved in Jai Singh's case were from 07.08.2000 to 27.01.2003. For determining the market value on the date of a particular notification, the Hon'ble Court relied upon the indicative price effective on 01.04.2001 and also a sale deed dated 25.05.2002. It indicates that the indicative prices can be treated as a good guide for determining the market value.
46. Ld Counsel for Union of India rebutted this contention and argued that if the land of adjoining villages are considered then all the villages of Delhi have to be treated at par. Such method, he argued, may lead to anomalous situation wherein the land of village of East Delhi may have to be treated with at par with the land of Lutyen's Delhi.
LAC No.261/16 page 30 of 30
47. I have examined the rival arguments. To some extent,I agree with the contention of Ld. Counsel for UOI that deciding the value on the basis of value of the land of adjoining village, as an absolute rule, is not a prudent rule. The situation in hand is however a bit different. The 4 villages touching the boundries of village Barwala are not merely adjoining but surrounding it. In Jai Singh's case, 10 villages namely Pooth Khurd, Holami Kalan, Holambi Khurd, Bawana, Khera Khurd, Narela, Alipur, Rajapur Kalan, Shahpur Gadi and Sanoth were treated at par. All these villages were falling within an area falling between " V" formed by NH-10 and NH-1. Village Barwala is touching its boundaries with four of the aforementioned villages. There is nothing on record to show that the petitioner's land in particular was suffering from any locational or inherent disadvantage. There is further nothing on record to exhibit that the agricultural land of village Barwala was in any way inferior to the lands of the villages touching its boundary. Village Barwala is also falling in the same geographical "V" area. Under these circumstances, I am finding it difficult to give treatment to the land of the petitioner inferior to any of the villages that were the subject matter in Jai Singh's case.
48. As a necessary follow through, I will proceed to LAC No.261/16 page 30 of 30 determine the question as to what was the fair market value of the acquired land on the date of the notification under section 4 of the Act i.e. 21.01.2003. The best available basis for assessment are the Indicative Prices and/or the market value of the adjoining land (determined in Jai Singh case) or a combination of both. Support can be drawn from the judgement in Jai Singh's case. The relevant excerpts are as under:
"59. Taking the logical reasoning a little further it assumes importance that as per the minimum price notified by the Government as of 1.4.2000 the per acre price was `13.82 lakhs and as of 1.4.2001 the same was `15.7 lakhs per acre i.e. the percentage increase between the year was 11.5% per annum. If I treat Category ‗A' land price at `18.655 lakhs as of 20.5.2002 based on the sale deed Ex.R-2, deducting the price by 11% per annum, the price as of 1.4.2001 would come to approximately `16.40 lakhs per acre and this would highlight that when contrasted with the minimum price notified by the Government at `15.7 lakhs per acre as of 1.4.2001, the price differential is `70,000/- per acre i.e. 4.46%. Since exactness can never be achieved while determining fair market value of a large chunk of land with reference to a few sale deeds where small parcels of land are sold for the reason even within a colony, the size, the location, the frontage etc. of a piece of land would vary the price by plus or minus 5%. What I wish to highlight is that even the sale deed in question yields to us a fair index as per which the minimum price notified by the Government has an element of rationality and acceptability."
49. Since I have already held that village Bawala deserves to be given the same treatment as any of the 10 villages involved in Jai Singh's case. The best and rational course is to treat, as base value, the market value of the adjoining village that was determined in Jai Singh's case. Then to suitably update the same upto the date of notification. Adopting this method, the market value of village Rajapur Kalan vis a vis the notification dated 27.01.2003 shall be treated as the base value as its notification is nearest in time with the notification dated 21.03.2003 involved in the present case. The value LAC No.261/16 page 30 of 30 of category A land was adjudicated in Jai Singh's case as Rs. 19,43,500/- per acre in para 97 of the judgment. Giving the percentage increase at the rate of 11.5% per annum, the value as on 21.03.2003 comes out to Rs. 19,80,750/- per acre [{1943500 x (11.5/100) x (2/12)} = 37250 + 1943500 = 1980750]. I accordingly adjudicate the market value of land of the petitioner as Rs. 19,80,750/- per acre. An enhancement of Rs 4,10,750/- per acre is accorded.
50. Besides above, petitioner shall be entitled to other statutory benefits under the LA Act viz. 12% additional amount [as per section 23 (1A)] and 30% solatium [u/s 23 (2)] and will be entitled to interest under Section 28 of L.A Act on the fair market value @ 9% per annum for the first year and @ 15% for subsequent year till the making of payment of enhanced compensation by LAC as per provision of Section 28 of the Act.
Issue no. 1 is decided accordingly.
88.51. Findings on Issue No.2 - RELIEF In view of the findings on Issue no.1, the petitioner/s are granted the following reliefs: -
1. fair market value @ Rs.19,80,750/- per acre for category A land, for the acquired land as per statement u/s 19 of the LA Act thereby giving an enhancement of Rs.4,10,750/- per acre;
2. additional amount @ 12% per annum on the fair market value u/s 23 (1A) of the LA Act, from the date of notification u/s 4 of the LA Act till the date of award or dispossession, whichever is LAC No.261/16 page 30 of 30 earlier ;
3. solatium u/s 23(2) of LA Act @ 30% on the enhanced amount of compensation ;
4. interest under Section 28 of L.A Act @ 9% per annum for the first year from the date of dispossession and at the rate of 15% per annum on the difference between the enhanced compensation awarded by this court and the compensation awarded by the LAC for the subsequent period till its payment ;
89.52. The share(s) of the petitioner(s) would be determinable as per the statement u/s 19 of the L.A. Act proved on record and the said statement shall constitute a part of this award.
90. 53. Reference petition stands answered. Parties to bear their own costs. A copy of this award be sent to the LAC for necessary information, action and expeditious compliance for remittance of the amount. File be consigned to record room.
91. Announced in the
92.Open Court on 25-04-2018
93. (NEERAJ GAUR) ADJ-01/North District, Rohini Courts/Delhi LAC No.261/16 page 30 of 30