Delhi District Court
West District vs . on 11 May, 2010
In the court of Ashwani Sarpal, Additional District Judge-05,
West District, Tis Hazari, Delhi.
Sh. K.L. Katyal & Ors.
vs.
Union of India & another
(LAC no. 27/08)
Award no.---13/DCW/2006-07
Village:-------------------Mundka
Date of institution---22-9-2008
Date of decision:----11-5-2010
(Reference under section 18 of Land Acquisition Act)
*****************************************
JUDGMENT:-
For the purposes of construction of 100 meter link road connecting National Highway-10 to Dwarka Sub-City in village Mundka-Bakkarwala and to give effect to other schemes of Planned Development of Delhi, agricultural land measuring 200 Bigha 5 Biswa in village Mundka was acquired on the basis of notification under section 4 of Land Acquisition Act dated 17-6-2005. Notification under section 6 of the Act was issued on 31-5-2006. Land Acquisition Collector announced a formal award bearing no. 13/DCW/2006-07 on 31-5-2007 and fixed the value of the land at Rs. 15,70,000/- per acre (or to say Rs. 3,27,083.33 per Bigha or Rs. 16,354.16 per Biswa). No compensation was awarded for any structure on the ground that no authorized structure was found standing on the acquired land. Collector also awarded separate compensation for trees, tubewell and well also. However it is not clear from the record when the possession of the acquired land was taken.
Land measuring 1 Bigha 3 Biswa comprising of Khasra no. 85/6 (1-3) belonging to four petitioners was also acquired under the above award. Petitioners being not satisfied with the compensation amount got their petition under section 18 of the Act referred to the court for enhancement of the same on various grounds. They LAC No.27/2008 Page 1/13 described the compensation amount as inadequate and unjustified and demanded compensation of land at the rate of Rs. 5,000/- per sq. yard. They also claimed compensation of Rs. 1 lakh for rooms, Rs. 2 lakhs for boundary wall, Rs. 20,000/- for Iron Gate and Rs. 3,000/- each for 6 trees standing on the land.
Respondents Union of India and Delhi Development Authority contested the matter and described the compensation amount as justified, correct and reasonable though DDA failed to file its written statement. On the basis of pleadings of the parties, following issues were framed vide order dated 6-2-2009;
1) What was the market value of the acquired property in question at the time of issuance of notification u/s 4 of Land Acquisition Act? OPP
2) Whether petitioner is entitled for any enhancement, if yes to what an extent? OPP
3) Relief.
In order to prove their case, petitioner no. 1 examined himself only as PW-1 whereas on behalf of UOI, copy of award Ex. R-1 was simply tendered in evidence. I have heard counsel for the parties and gone through the record. My decision on above mentioned issues is as under;
Issues no. 1 and 2:-
Both these issues are required to be dealt with together. The relevant date to assess the market value of the acquired land in question is 17-6-2005 when the notification under section 4 of the Land Acquisition Act was issued.
Delhi High Court in Ishwar Singh vs. Land Acquisition Collector 2008 VI AD (Delhi) 209 dealt with the powers of Collector while conducting an enquiry under section 11 of Land Acquisition Act for determining the compensation amount in respect of acquired land. Court held that powers given to Collector under this Act is quasi- judicial in nature and he is bound to examine the objections raised by the land owners, briefly dealt with the same in arriving at a conclusion and take into consideration all the circumstances relevant for proper and correct market value of the acquired land.
Here in the present case, if the contents of the award Ex. R-1 are considered, then certainly it can be said that the Collector had not dealt with the matter for LAC No.27/2008 Page 2/13 determination of compensation in proper manner and had not taken into consideration all the relevant facts. He apparently had not dealt with all the contentions of the land owners. Award does not show that he had personally inspected the area before assessing the quantum of compensation of the acquired land. He relied upon minimum govt. rates given in circular dated 9-8-2001 (applicable with effect from 1-4-2001) for assessing the market value but no appreciation of about four years and three months was given. Accordingly, it is held that award Ex. R-1 is not complete and proper in all respects.
As per award Ex. R-1, agricultural land was acquired by the govt. PW-1 also admitted in his affidavit of evidence that at the time of acquisition it was an agricultural land. He in cross examination also stated that he was doing agricultural work in the property in question. This agricultural land could not have been used for any other purposes due to restrictions imposed under Delhi Land Reforms Act. Petitioners have not brought on record any document to show that any notification under section 507 of Delhi Municipal Corporation Act had been issued to declare this village as urbanized or user of land has been permitted to be changed. Hence in absence of any such notification or permission, it has to be held that at the time of issuing of notification under section 4 of the Act, acquired land in question was situated in rural area and it could not have been used for any commercial or industrial purposes. Otherwise also land has been acquired by govt. not for any commercial or industrial purposes but only for construction of link road being used for general public. These factors have to be taken into consideration while determining the potentiality of the acquired land.
Following points raised during arguments on basis of evidence led by the parties on record are being discussed as under one by one.
a) Yearly appreciation of land:-
Counsel for the petitioners relied upon case laws Bedi Ram vs. Union of India 93 (2001) DLT 150, Rameshwar Solanki vs. Union Of India 57 (1995) DLT 410, Om Prakash vs. UOI 2010 (114) DRJ 402 and Delhi Simla Catholic Archdiocese vs. Union Of India 2002 VI AD (Delhi) 315 and argued that normally 12% appreciation per year is given by the courts on proved sale deeds or established previous market rates etc. so atleast this much appreciation should have been allowed to the petitioners even on the market value as fixed under the award. However as per LAC No.27/2008 Page 3/13 decision of Supreme Court given in Mehtab Singh vs. State of Haryana AIR 1995 Supreme Court 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.
Supreme Court in The General Manager, ONGC vs. 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.
Part of village Mundka has been notified as Industrial area as per notification of Delhi Govt. dated 17-11-2007 Ex. PW1/6. However this subsequent notification of village is of no help to the petitioners as the relevant date to assess the compensation amount in this matter is of 17-6-2005 when notification under section 4 of Land Acquisition Act was issued. Thus the notification Ex. PW1/6 cannot be taken into consideration and is of no consequences. Village Mundka had not been urbanized till the date of notification under section 4 of the Act and land in question was being used for agricultural purposes only. So keeping in view the fact that it is a part of National Capital and was having proximity to the developed areas of Delhi especially Dwarka residential sub-city, I treat the same as semi-urban area and deem it proper to give appreciation of 10% per annum, if otherwise is held applicable. Delhi High Court in Pratap Singh vs. UOI LAA no. 193 of 2006 decided on 19-12-2008 also approved appreciation of 10% p.a. in respect of land acquired in nearby village Tikri Kalan.
b) Sale deeds of same and adjoining village:-
There is a difference in between minimum price and fair market value. In normal circumstances, fair market value is higher than the minimum price but to what an extent it is higher, the onus is upon the petitioners to establish it. An 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 Supreme Court in Special Deputy Collector vs. Kurra Sambasiva Rao AIR 1997 SC 2625 and APMC vs. Land Acquisition Collector JT 1996 (9) SC 432. In these cases, theory of 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.LAC No.27/2008 Page 4/13
Sale deeds relating to the acquired land or of the same village executed within a reasonable time which otherwise are genuine is the best piece of evidence for determining the market value of the acquired land as per view of Supreme Court given in Special Tehsildar, Land Acquisition vs. Smt. A. Mangala Gowri AIR 1992 Supreme Court 666. Thus the reliance upon awards, judgments and even the policy of the govt. would be made by the court only in absence of such reliable best evidence.
PW-1 relied upon four sale deeds Ex. PW1/2 to 5. No sale deed is relied upon by the respondents. Supreme Court in Cement Corporation of India vs. Durya 2004 (2) All India Land Acquisition and Compensation Cases 540 held that certified copies of sale transactions itself are admissible in evidence as it attaches presumption of genuineness and there is no need to examine vendor or vendee but if this presumption is rebutted by any other evidence then there is a necessity to examine vendor or vendee. The details of sale deeds produced by petitioners are as under;
Ex. No. Village Area sold Date Sale Average value
where of sale consideration In rupees
land in rupees
situated (stamp duty
not included)
PW1/2 Mundka 1 Bigha 5-8-96 4,75,000 4,13,043.46 per
3 Biswa Bigha or
20,652.17 per
Biswa
PW1/3 Mundka 1 Bigha 12-11-99 4,80,000 4,00,000 per
4 Biswa Bigha or 20,000
per Biswa
PW1/4 Mundka 1 Bigha 17 5-10-04 10,00,000 10,81,081 per
Biswa (½ Bigha or
share) 54,054.054 per
Biswa (for full
share)
PW1/5 Hiran 4 Bigha 16 5-8-03 75,00,000 15,62,500 per
Kudna Biswa Bigha or 78,125
per Biswa
LAC No.27/2008 Page 5/13
Scale used:- (1 Acre=4 Bigha 16 Biswa=96 Biswa)
(1 Bigha=20 Biswa)
The sale deed Ex. PW1/5 is of village Hiran Kudna. When sale deeds of same village in which land is acquired are available then sale deed of adjoining or nearby villages need not be looked into. Otherwise also it is not established on record even by single evidence that land situated in village Hiran Kudna and village Mundka are similar in situation, location, potentiality and utility etc. Accordingly the sale deed Ex. PW1/5 produced by the petitioners pertaining to the different adjacent village Hiran Kudna cannot be taken into consideration when other three sale deeds on record of the same village are available. Hence only sale deeds Ex. PW1/2 to 4 are left for determination of market value.
Sale deed Ex. PW1/2 was executed on 5-8-96 about 8 years 10 months prior to the date of notification under section 4 of the Act which took place on 17-6- 2005. The land rate was Rs. 4,13,043/- per Bigha as per Ex. PW1/2 but after more then three years, the rate was Rs. 4,00,000/- per Bigha as per sale deed Ex. PW1/3 executed on 12-11-99 about 5½ years prior to the date of notification. It shows downward trend in the value of land in the village. On the other hand, sale deed Ex. PW1/4 executed on 5-10-2004 about 8 months prior to the date of notification point out the value of land at Rs. 5,40,000/- per Bigha.
First two sale deeds Ex. PW1/2 and 3 relied upon by the petitioners cannot be treated as executed within a reasonable time. All three sale deeds also cannot be considered when it is not established what was the exact location, distance between the land sold under it and acquired land of the petitioners, advantages and facilities attached to it etc. The increase price of these sale deeds may be due to some special value or advantage to the purchaser resulting in enhanced price. In absence of any evidence of similarity of nature, location, utility etc. of the pieces of land sold under sale deeds Ex. PW1/2 to 4 as compared to the acquired land in question, these sale deeds cannot be relied upon and are liable to be rejected. Otherwise also these sale deeds are relating to smaller size of plots whereas acquisition had taken place in respect of very large tract of land. These sale deeds of smaller plots cannot truly represent the market value of the bigger size plots. Law is well settled as per decision of Supreme Court given in cases Collector of Lakhimpur vs. Bhuban Chandra Dutta (1972) 4 SCC 236, Kausalya Devi vs. Land Acquisition Officer (1984) 2 SCC 324 and Land LAC No.27/2008 Page 6/13 Acquisition Officer vs. Nookala Rajamallu (2003) 12 SCC 334 that normally sale transactions relating to smaller piece of land could not be a true test for determining compensation payable to the owners of large tract of land.
The land in this village Mundka could not have been used for any other purpose except for agricultural. Sale deeds Ex. PW1/2 to 4 says that purchaser had to use this land for agricultural purposes only. No evidence is brought on record by the petitioners that the land sold under these sale deeds was not used subsequently for any commercial or residential or industrial purposes but always used for agricultural purposes. It is suspected that the land purchased under these sale deeds Ex. PW1/2 to 4 was to be used by vendees in contravention of provisions of Delhi Land Reforms Act and accordingly the increase of value of such land cannot be taken into consideration being hit by clause 8 of section 24 of Land Acquisition Act.
In such circumstances, sale deeds produced by petitioners Ex. PW1/2 to 5 cannot be held fit for determining the market value of the acquired land in question and thus are hereby rejected. In that situation, court has to rely upon other evidence brought on record.
c) Enhancement of compensation on basis of previous decision of court:-
In village Mundka itself, earlier also some land was acquired vide notification dated 21-3-2003 under two separate awards bearing no. 1 and 3 of year 2005-06 and matter came before this court. The compensation was enhanced under those awards at Rs. 15,92,215.71 per acre (or Rs. 3,31,711.60 per Bigha or Rs. 16,585.58 paisa per Biswa) as per judgments given in cases Om Parkash vs. UOI and Hoshiyar Singh vs. UOI decided on 1-7-2009. Counsel for respondents requested that those judgments should be taken into consideration whereas on behalf of petitioners, it is argued that in adjoining village Bakkarwala, on the basis of notification of same date i.e. 17-6-2005 court had awarded compensation at Rs. 20,35,255 per acre (or 4,24,011.44 per Bigha or Rs. 21,200.57 per Biswa) as per judgment given in case Kailashwati vs. UOI decided on 26-4-2010. After considering the findings given in these judgments decided by this court, the minimum rates fixed by the govt. itself as well taking into consideration the date of notifications, I am of the view that the findings given in Kailashwati's case shall have direct bearing upon this matter. Under the present award in question, the criteria used and method adopted in Kailashwati's case has to be applied.LAC No.27/2008 Page 7/13
(d) Minimum value of land as fixed by government:-
Petitioners have brought on record some circulars Ex. PW1/1 (colly) issued by Land and Building Department of Delhi Govt. fixing the minimum value of agricultural land. As per one circular, value of land is fixed at Rs. 17,58,400/- per acre to be effective from 30-8-2005. This value was further enhanced to Rs. 53,00,000/- per acre with effect from 18-12-2007 vide circular dated 24-1-2008.
There is no dispute of the fact that earlier to it there was a circular dated 9- 8-2001 under which minimum value of the agricultural land at Rs. 15,70,000/- per acre was fixed with effect from 1-4-2001. Reference of this circular can be found also in the award Ex. R-1 as on its basis, Collector fixed the compensation amount. Admittedly in between circular dated 9-8-2001 and 30-8-2005, no other circular showing minimum rate of the agricultural land was issued by the govt.
Delhi High Court in Jai Prakash vs. Union Of India, LA. APP. no. 783/06 decided on 4-7-08 held that purpose of fixing the minimum price for agricultural lands is not to check the tendency of undervaluation of land but has been fixed with a view to giving to the land owners a fair deal by stipulating a minimum price which the Collectors would keep in mind while determining compensation for the lands acquired from the owners. In this case, High Court by loading and offloading appreciation on two circulars regarding minimum value, fixed the market value of the land in question.
In the award Ex. R-1, minimum rates of agricultural land as fixed by the govt. circular dated 9-8-2001 applicable with effect from 1-4-2001 were relied upon by the Collector. Notification under section 4 of the Act in respect of acquired land of the petitioners was issued on 17-6-2005 nearly after about 4 years and 2½ months but no yearly appreciation was allowed by Collector. There is a justification in this demand of the petitioners that they should have been given minimum yearly appreciation as per law for about 4¼ years from 1-4-2001 till 17-6-2005. Non-giving of any appreciation by the Collector to the land owners, who were wrongly deprived of the same, makes out a ground for enhancement in compensation.
Rate of agricultural land given in circular dated 30-8-2005 is very close to the date of notification under section 4 of the Act i.e. on 17-6-2005 but court has also to take into consideration the previous 4 years old circular dated 9-8-2001. Subsequent circular dated 24-1-2008 is not required to be considered at all as it is too remote and is of very later period. Request made on behalf of petitioners for taking into consideration rates of land mentioned in circular dated 24-1-2008 is hereby rejected.LAC No.27/2008 Page 8/13
As there is difference of 74 days (13 days of June + 31 days of July + 30 days of August) in the year 2005 so if average offloading appreciation rate at 10% p.a. of these 74 days is deducted from the price fixed under this circular dated 30-8-2005 then market value of the land on 17-6-2005, the date of notification under section 4 of the Act comes to Rs. 17,22,750.25 (17,58,400 - 35,649.75) paisa as per following calculations.
17,58,400 x 10 x 74 = 35,649.75
100 x 365
The minimum price of agricultural land as per circular issued by govt. dated 9-8-2001 effective from 1-4-2001 was fixed at Rs. 15,70,000/- per acre. If 10% yearly appreciation upon Rs. 15,70,000/- is given for 1538 days counted from 1-4-2001 to 17- 6-2005 (365 x 4= 1460 days from 1-4-2001 to 31-3-2005 + 78 days from 1-4-2005 to 17-6-2005), then the market value of the land on the date of notification under section 4 of the Act would come to Rs. 23,47,758.50 paisa per acre as per calculations given below.
(A) One year or 365 days appreciation @ 10% as on 1-4-2002 = 15,70,000 x 10 = 1,57,000 100 Hence value of land as on 1-4-2002 comes to Rs. 17,27,000/- (Rs.
15,70,000 + 1,57,000) per acre.
(B) One year or 365 days appreciation @ 10% as on 1-4-2003 = 17,27,000 x 10 = 1,72,700 100 Hence value of land as on 1-4-2003 comes to Rs. 18,99,700/- (Rs. 17,27,000 + 1,72,700) per acre.
(C) One year or 365 days appreciation LAC No.27/2008 Page 9/13 @ 10% as on 1-4-2004 = 18,99,700 x 10 = 1,89,970 100 Hence value of land as on 1-4-2004 comes to Rs. 20,89,670/- (Rs. 18,99,700 + 1,89,970) per acre.
(D) One year or 365 days appreciation @ 10% as on 1-4-2005 = 20,89,670 x 10 = 2,08,967 100 Hence value of land as on 1-4-2005 comes to Rs. 22,98,637/- (Rs. 20,89,670 + 2,08,967) per acre.
(E) 78 days appreciation
@ 10% as on 17-6-2005 = 22,98,637 x 10 x 78 = 49,121.55
100 x 365
Hence value of land as on 17-6-2005 comes to Rs. 23,47,758.55/- (Rs. 22,98,637 + 49,121.55) per acre.
If both loading figure of Rs. 23,47,758.55 on basis of circular dated 9-8-2001 and offloading figure of Rs. 17,22,750.25 on basis of circular dated 30-8-2005 are added and then divided by 2 while applying the formula given by Delhi High Court in above mentioned Jai Prakash's case, then the average market value of the land in question as on the date of notification would come to Rs. 20,35,254.30 per acre (or round figure as Rs. 20,35,255 per acre). The same amount of compensation was awarded in respect of land acquired for same purpose in village Bakkarwala in respect of notification of same date i.e. 17.06.05 which is situated adjacent to village Mundka. Petitioners should have been given minimum compensation at this rate by the Collector and allowing compensation at Rs. 15,70,000 per acre is not reasonable and adequate.
LAC No.27/2008 Page 10/13(e) Location of the land:-
However there is an additional advantage of the acquired land in village Mundka which was not available to other villages such as Bakkarwala. There is a railway station in village Mundka and its boundaries are touching National Highway no.
10. The site plan annexed with notification issued by govt. Ex. PW1/6 clearly point out that National Highway-10 abuts this village. Moreover the land in question was acquired for purpose of constructing link road to National Highway. Supreme Court in Union of India vs. Mangat 2001 (4) RCR (Civil) 815 , Municipal Committee Vs Balwant Singh 1995 (3) R.R.R. 294 and V. Hanumantha Reddy vs. Land Acquisition Collector 2004 (1) RCR (Civil) 496 is of the view that market value of the land which abuts National Highway would be much more than the land which is away from it. Location of land is one of the prime factors to assess market value. The land which is farther away from the national highway cannot be given the same value which abuts it.
Petitioners have not led any evidence to show at what distance their acquired land was situated from National Highway no. 10 but it is true that village Mundka is situated in between village Bakkarwala and National Highway and thus naturally it could fetch higher price in comparison to land situated in village Bakkarwala which is at far off distance from National Highway. During arguments, parties pointed out/marked on the site plan annexed with notification Ex. PW1/6 to show where the acquired land under this whole award is situated though it is not clear at which exact place, land of the petitioners falls. It is stated that the whole of block of land acquired falls within distance of about half Kilometer radius from National Highway. It transpires from the site plan that acquired land is at small distance from National Highway so some special benefit can be given to the petitioners for location of land adjacent to the National Highway. Counsel for petitioner cited some judgments of Punjab and Haryana High Court Raj Kumar Vs State of Haryana 1998 (1) RCR (Civil) 278, Union of India Vs Kehar Singh 1992 (1) RRR 191 and Bikkar Singh Vs The Land Acquisition Tribunal, Ludhiana 1995 (1) RRR 705 and prayed for giving appropriate enhancement of the compensation on account of proximity of the land acquired with the National Highway. In absence of any clear evidence, the 'Belting System' can not be applied upon the acquired land and whole of the acquired land has to be treated as a single block. The land in question was an agricultural land and would not have got any extra special potential due to acquisition as the same was not to be used for any LAC No.27/2008 Page 11/13 commercial, residential or industrial purpose. The maximum benefit the land owner could get due to proximity of National Highway was the easy approach to the National Highway or at the maximum could get the benefit of taking their machinery, tools and crops etc. to and from acquired land. In my view 5% extra compensation over the rate fixed above has to be given to land owners keeping in view the proximity of their land to National Highway.
In the reference petition, petitioners also claimed some compensation on account of structure, boundary wall or trees etc. but no proof in this regard is produced in evidence. Petitioners have no photographs to show existence of any tree or construction. No revenue record is produced to show that any tree existed at site. Moreover no construction could have been raised on the agricultural land. Petitioners have not brought on record any sanctioned site plan or approval of competent authority which allows them to raise construction of room and boundary wall. No bill or receipt of Iron Gate is placed on record. Hence in such circumstances, petitioners are held not entitled to any compensation on account of rooms, boundary wall or Iron Gate or trees. They are entitled to enhanced compensation in respect of land in question only.
Accordingly, these two issues are decided in favour of the petitioners and against the respondents. It is held that compensation awarded by Collector at Rs. 15,70,000/- per acre was deficient, inadequate and unreasonable. After considering the rate of land and after giving extra 5% on account of proximity to National Highway, the compensation should have been at Rs. 21,37,017.75 per acre (or Rs. 4,45,212.03 per Bigha or Rs. 22,260.60 per Biswa). The compensation amount thus is liable to be enhanced to such an extent.
Issue no. 3 (Relief):-
In view of above discussions, reference is disposed off by holding that compensation awarded to petitioners at Rs. 15,70,000/- per acre (or to say Rs. 3,27,083.33 per Bigha or Rs. 16,354.16 per Biswa) by LAC was inadequate and unreasonable. Petitioners were required to be paid compensation at the rate of Rs. 21,37,017.75 per acre (or Rs. 4,45,212.03 per Bigha or Rs. 22,260.60 per Biswa) for land. Petitioners are thus entitled to enhancement of compensation to the tune of Rs. 5,67,017.75 per acre (or Rs. 1,18,128.69 per Bigha or 5,906.44 per Biswa) along with 30% solatium under section 23 (2) of Land Acquisition Act.LAC No.27/2008 Page 12/13
Petitioners are also entitled to additional amount under section 23 (1-A) at the rate of 12% p.a. from the date of notification under section 4 of the Act till the date of award or date of possession which ever is earlier.
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. Copy of this order be sent to LAC for information and deposit of balance amount immediately to avoid further burden upon the govt. exchequer. Decree be prepared and file be consigned to record room.
(Ashwani Sarpal)
Dt. 11-5-2010 Additional District Judge
LAC No.27/2008 Page 13/13