Delhi District Court
Sh. Ashok Kumar vs Union Of India Through on 12 January, 2011
IN THE COURT OF SH. SANJEEV KUMAR:
ADDITIONAL DISTRICT JUDGE : ROHINI COURTS : DELHI
LAC No.199A/09
IN RE :
SH. ASHOK KUMAR
S/O SH. KEVAL KRISHAN
R/O KP163, MAURYA ENCLAVE,
PITAMPURA, DELHI
...... PETITIONER
Versus
1. UNION OF INDIA THROUGH
LAND ACQUISITION COLLECTOR,
NORTH WEST,
DELHI.
2. DELHI DEVELOPMENT AUTHORITY
VIKAS SADAN, DELHI (DDA).
........RESPONDENTS
Award No. 33/200304
Village HOLAMBI KALAN
Date of Award/ Date of
Announcement of Award 03.03.2004
Notification U/S 4 F.10(4)/97/L&B/LA/7329
dt. 22.08.2001
Corrigendum F.10(4)/97/L&B/LA/5148
dt. 26.06.2002
Notification U/s 6 F.10(4)/97/L&B/LA/7910
dt. 26.07.2002
LAC No. 199A/09 Page 1 of 42
Date of Receipt of Reference : 17.07.2006
Date of Arguments : 27.10.2010
Date of Decision: 12.01.2011
REFERENCE PETITION UNDER SECTION 18 OF THE
LAND ACQUISITION ACT 1894
J U D G M E N T
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. A large tract of Land measuring 1094 bigha 17 biswa of village Holambi Kalan, Delhi, was acquired by the Govt. for "development of Freight Complex at Narela under planned Development of Delhi". Notification under Section 4 of The Land Acquisition Act, 1894 (hereinafter referred to as 'LA Act') was issued on 22.08.2001 and corrigendum was issued on 26.06.2002. Declaration under Section 6 was made on 26.07.2002; Thereafter, Award bearing no. 33/200304 was announced by Land Acquisition Collector (hereinafter referred to as LAC) on 31.03.2004. The LAC determined the market price of the acquired land as Rs.15,70,000/ per acre.
LAC No. 199A/09 Page 2 of 42
3. The brief facts as stated in the reference are that petitioner Ashok Kumar was the owner/bhumidar of land bearing khasra no. 26/5 (4
16), 6(416), 15 (40) total measuring 13 Bighas 12 Biswas, situated within the Revenue Estate of Village Holambi Kalan, Delhi (the said land). The said land was acquired by Govt. and LAC has passed the award granting Rs.15,70,000/ per acre as market value to the petitioner. Being dissatisfied to the said value he challanged the award by filing the reference u/s 18 of Land Acquisition Act, 1894.
4. The petitioner has challenged the said award on the following grounds :
a) that LAC has assessed the compensation merely on the basis of surmise and conjecture without looking into actual rate of the land prevailing in the area;
b) that LAC has failed to appreciate that the land of the petitioner is adjoining to the Alipur Road and village Abadi and has great market value;
c) that LAC has not correctly assessed the market value as he has determined the market value on the basis of Govt. policy dated 09.08.01 whereby, indicative price of agricultural land has been fixed @ Rs. 15.70 lacs per acre whereas he should have assessed the market value strictly as per the order under Section LAC No. 199A/09 Page 3 of 42 23 & 24 LA Act, 1894.
d) that LAC has not taken into consideration the registered sale deed of land bearing no. 47/9 measuring 04 bighas 16 biswas which was sold @ Rs. 26,75,000/ situated in the Village Mamoorpur which is adjacent to the Village Holambi Kalan.
e) That LAC has failed to appreciate that the acquired land of Village Holambi Kalan is better than localities than the land of adjoining village because it is adjacent to various developed colonies.
f) That LAC has failed to appreciate that many palatial farm houses have been constructed in the revenue estate of village Holambi Kalan where the rate is not less than 15,000/ per sq. yards which is marketable value of the land of the petitioner.
g) That LAC has not awarded proper compensation of the trees details of which are given as below: Srl. No. Trees No.s Age 1 Eucalyptus 40 15 yrs.
2 Ashok 50 08 yrs.
3 Palm 50 20 yrs.
4 Mango 10 10 yrs 5 Gauva 20 10 yrs.
He should have awarded Rs. 10,000/ per bigha for the crops and Rs. 500,000/ for the trees standing in his share LAC No. 199A/09 Page 4 of 42
h) that LAC has not awarded compensation for the adequate tubewell and kothi, swimming pool, boundary wall fountain etc. consturcted by the petitioner of which had spent a huge sum.
i) that LAC has failed to appreciate that DSIDC has sold the adjoining land of the industrial units @ Rs.8,000/ per sq. yards. Respondent no. 2 i.e. DDA also allotting the land @ Rs.6,200/ per sq. yards, therefore, petitioner is also entitle to atleast that much less rate;
j) that LAC has failed to appreciate that land of the petitioner is very fertile and productive and give atleast 3 crops in a year, as the same was having a water course connected with the canal which is adjoining to the land of the petitioner;
k) that LAC has also erred in not awarding the compensation due to compulsory change of nature and place of business/livelihood;
l) that LAC has also erred in awarding the compensation of boundary walls.
5. The petitioner has claimed compensation of his land at the rate of Rs.5,000/ per sq. yards. Besides this he claimed compensation of Rs.20,000/ per bigha for loss and damages sustained by him on account of being deprived of farming on the land and he also claimed Rs. 5 Lacs for boring of tube well, cost of equipments, construction of pucca room and standing trees and Rs. 40,00,000/ LAC No. 199A/09 Page 5 of 42 for construction of farm house etc. and Rs. 10,000/ for tubewell
6. The reference petition was contested by Union of India (hereinafter referred to as 'UOI') as well as Delhi Development Authority (hereinafter referred to as "DDA").
7. Both the respondents have filed their written statement, in which they had taken many objections to the claim filed by the petitioners. In its written statement filed on behalf of respondent no. 1/UOI it is stated that land of petitioner was not surrounded by developed or under developed colonies and can only be used for agricultural purpose and Delhi Land Reform Act was applicable to the said land it is further stated that there was no structure, tree, tubewell etc. on the land of the petitioner. It is further stated that compensation awarded by LAC is fair, reasonable and adequate on the basis of market rate and petitioner is not entitle to any enhancement in the compensation awarded by the LAC.
8. In the written statement of Respondent no. 2/DDA, it is denied that land of the petitioner was levelled land and fit for residential/commercial purpose. It was further denied that at the time of notification u/s 4 market value of the land in the area was Rs.5,000/ per sq. yards. It is further denied that petitioner has suffered loss and injury due to compulsory change of nature and place of business and he has suffered a loss of crops. It is further LAC No. 199A/09 Page 6 of 42 stated that LAC has awarded the just and adequate compensation after taking into consideration all the facts relevant for determining the compensation and as such petitioner is not entitle to any enhancement in the compensation.
9. During the admissiondenial of documents, petitioner has admitted statement u/s 19 of Land Acquisition Act sent by LAC.
10. After the completion of pleadings of the parties, the following issues were framed :
1. Whether the petitioner is entitled to any enhancement in compensation. If so, to what amount ?
2. Relief.
11. In support of his claim, the petitioner has examined 7 witnesses.
He examined himself as PW1 and led his evidence by way of affidavit (no exhibits given).
PW2 Sh. Vijay Prakash, UDC, L&B Deptt., who has proved copies of circular / polices dated 3.05.90 and 09.08.01 whereby government fixed minimum price of agricultural land as Ex. PW2/1 & Ex. PW2/2 respectively PW3. M.D. Sharma, Patwari from SDM Office, Narela, Delhi, who has proved the Aks Sizra as Ex. PW2/5 and LAC No. 199A/09 Page 7 of 42 khasra girdawari of the acquired land for the year 2001 2002 to 200405 as Ex. PW2/4 (Colly).
PW4 Sh. Vijay Kumar Gaur, UDC Office of Sub registrarVIA, who has proved sale deed dated 25.04.01, registered as document no. 6053, in addl. Book no. 1, volume no. 1556 on pages 48 to 66 registered on 25.04.01/03.05.01 of Village Khera Khurd already as Ex. PW1/1 and sale deed dated 31.03.2000 registered vide no. 3505 in addl. Book no. 1, volume no. 992 on pages 107 to 120 registered on 01.04.2000 as Ex. PW1/2 of village Mamoorpur. He has also proved sale deed dated 25.04.01 registered vide no. 6045 in addl. Book no. 1, volume no. 1556 on pages 67 to 70 registered on 03.05.01 of village Khera Khurd as Ex. PW4/1 and perpetual lease deed dated 25.09.03 registered vide no. 22308 in addl. Book no. 1, volume no. 3857 on pages 154 to 160 registered on 26.09.03 as Ex. PW4/2 PW5 Sh. Satish Sharma, Head Clerk L&B Deptt., who has proved policy letter bearing no.
F.9(20)/80/L&B/LA/15065 dated 24.01.08 as Ex. PW5/1 PW6 Sh. Ashwani Dhawan, UDC SR VIB, Narela, who has proved sale deed dated 22.12.06 registered no. LAC No. 199A/09 Page 8 of 42 16168, Book no. 1, volume no. 609 on pages 1 to 240 as Ex. PW6/1.
PW6A Jagdish Kumar, Head Clerk, MCD Office, Narela, who is inadvertently mentioned as PW6. Now, in order to identify his testimony he will be referred as PW6A in future. He has proved list of farm houses sanctioned since 2000 in Narela Zone as Ex. PW6/1 running into two pages and report regarding the sanctioned motels in Narela Zone as Ex. PW6/2. PW7 Sh. Satish Kumar, Patwari LAC(NW), has proved list of all awards announced by LAC as Ex. PW7/1.
12. On the other hand Ld. Counsel for respondent has examined only one witness RW2 Sh. Om Parkash, LDC, O/o SubregistrarVI A, who proved that sale deed dated 19.03.97 registered as document no. 2178 in addl. Book no. 1, volume no. 304 on pages 148 to 154 as Ex. RW2/A, sale deed dated 19.03.97 registered as document no. 2177 in addl. Book no. 1, volume no. 304 on pages 143 to 147 as Ex. RW2/B, sale deed dated 19.03.97 registered as document no. 2174 in addl. Book no. 1, volume no. 304 on pages 123 to 130 as Ex. RW2/C, sale deed dated 19.03.97 registered as document no. 2172 in addl. Book no. 1, volume no. 304 on pages 108 to 114 as Ex. RW2/D, sale deed dated 19.03.97 registered as document no. LAC No. 199A/09 Page 9 of 42 2179 in addl. Book no. 1, volume no. 304 on pages 155 to 159 as Ex. RW2/E and sale deed dated 19.03.97 registered as document no. 2181 in addl. Book no. 1, volume no. 304 on pages 165 to 174 as Ex. RW2/F and besides this Ld. Counsel for UOI has also tendered copy of the award as Ex. R1.
13. I have heard the Ld. Counsel for the parties and have also carefully considered the record. My issuewise findings are given hereinafter.
14. FINDINGS ON ISSUE NO. 1 : 14.1 Recently in Special Land Acquisition Office Vs. Karigowda & Ors. 2010 AD (SC) 345 it is observed by Supreme Court that normally following methods are adopted to determine market value such as :
a) Sales Statistics Method : Sales must be genuine and bonafied should have been executed at the time proximate to the date of notification u/s 4 of the Act, the land concerned by sale must be in the vicinity of the acquired land. The land covered under the sale instances should have similar potential and occasion as that of acquired land.
b) Capitalization of Net Income method - In this method of determination of market value, capitalization of income method or expert opinion method has been affiliated. LAC No. 199A/09 Page 10 of 42
c) Agricultural yeild basis method - Annual agricultural yield of acquired land and keeping in mind the potential and nature of land, wet (irrigated), dry and barren (banjar).
And it is depend upon facts of each case which factor is more suitable to determine the market value.
14.2 Ld. counsel for the petitioner has contended that LAC has determined the market value of the petitioner's land at the rate of Rs.15,70,000/ on the basis of policy of the government policy whereby indicative price of agricultural land at the rate of Rs.15,70,000/ per acre. Petitioner was not satisfied with the said market value fixed by the LAC and he has contended that his land capable of fetching higher prices. The onus is on the petitioner to prove that he is entitle to higher market value of his land then what LAC has determined as it was held in in State of UP & Anothers Vs. Rajender Singh AIR 1996 SC 1564, Hon'ble Supreme Court Judge held that "the onus is on the petitioners to prove that their lands are capable of fetching higher compensation then what has been determine by the LAC and that LAC No. 199A/09 Page 11 of 42 he is entitle for enhance compensation.". In order to prove that petitioner is entitle to higher compensation petitioner has examined 7 witnesses. Let testimony of witness be examined on the basis of various method suggested by Supreme Court.
15. Market value on the basis income accrued from the agricultural yield/land 15.1 Ld. counsel for the petitioner has contended that petitioner was earning Rs.One Lac per bigha. In order to prove same Ld. Counsel for the petitioner has relied upon the testimony of petitioner who examined himself as PW1. He has deposed in his affidavit para 6 that his land was very fertile and productive & he used to grow flower crops and was earning at least Rs. 100,000 per bigha per season and he was growing three crops in a year but the khasra girdawari Ex. PW2/1 of year 200102 relied upon by petitioner do not support the contention of petitioner that he was growing flower as in the girdawari crops of wheat and vegetable have been shown thus khasra girdawari is itself contradicting his statement. Further no documentary evidence has been produced by him in support of his income. Further in his claim he has not LAC No. 199A/09 Page 12 of 42 mentioned that he was earning Rs.1,00,000/ per bigha rather as appear from the ground (p) of the claim petition filed by him wherein he has only seek damages for his crop @ Rs.10,000/ per bigha, which make highly improbable to presume that when he was earning Rs.1,00,000/ per bigha from the crops he will claim damage to his crop for only Rs10,000/ per bigha. Hence, his statement does not inspire much confidence. Therefore, I held that petitioner has failed to prove that he was earing Rs. 100,000 per bigha per season from the lend in question. Hence, he is not entitle to any enhancement compensation on the basis of agriculture income.
16. Market value on the basis of sale transactions 16.1 Best method to determine the market value is the sale transaction In Special Deputy Collector and Anrs. Vs. Kara Sambasine Rao and Anrs. AIR 1997 SC 2625 it is held that the acid test would be whether a hypothetical willing vendor would sold over the land and willing purchaser be willing to buy the land as a product land in normal condition prevailing in the open market in the locality in which the acquired land are situated as on the date of notification u/s 4 of the LA Act. In UOI Vs. Pramod Gupta 2004 RCR Civil 235 it is held that LAC No. 199A/09 Page 13 of 42 "the best method as well known would be the amount which a willing purchaser would pay to the owner of the land in the absence of any direct evidence in the court however, may take recourse to various other methods."
In Ranvir Singh Vs. UOI (Supra) in para 34 it is held that "it a well settled law that he sale deeds pertains to the operation of the land which are subject to close would be the most relevant piece of the evidence for assigning the market value of the land."
16.2 While reverting back to the present case, petitioner has relied upon sale deed of village Mamurpur, Khera Khurd & Holambi Kalan itself which are exhibited as Ex. PW1/1, PW1/2, PW4/1 &PW6/1. Ld. Counsel for the petitioner has contended that LAC has wrongly rejected the sale deed of village Mamurpur on filmsy ground. He has pointed out my attention to page 21 para 2 of the award under the heading market value which is reproduce as below :
LAC No. 199A/09 Page 14 of 42
"The interested persons have generally claimed exorbitant prices of their land by making claims about Rs.2,500.00 per sq. yards to Rs.16,000.00 per sq. yards. Some of the claimant have filed the documentary evidence in the form of certified copy of the sale deed executed on 25.03.2000 for a sum of Rs.26,75,000.00 per acre in respect of one acre of land situated in village Mamoorpur in support of their claim.
It is well established that in determining compensation, the valuation fetched for smaller plot of land cannot be applied to lands covering a very large area. The larger area of land cannot possibly fetch the same rate at which smaller plots are sold. Hence, the sale deed furnished by the claimants/interested persons to ascertain the market value of the land under acquisition cannot be applied to the land under reference. Moreover, this office is in possession of a sale deed executed on 04.12.2001 in respect of land measuring 8 biha 10.½ Biswas and situated in village Narela for a sum of Rs.22,88,390.00 i.e. Rs.12,89,000 (approx.) per acre. LAC No. 199A/09 Page 15 of 42 It can clearly be stated that the market value of the land has not increased but has either remained same or has decreased marginally since the financial year 2001. The claims therefore, cannot form the basis for determination of market value.
Ld. counsel has contended that the LAC has rejected the sale deed of village Mamurpur, which was of Rs.26,75,000/ only on the ground that valuation fetch for smaller plot of land cannot be applied to lands covered very large area. Whereas there are number of judgments where in it is held by Hon'ble Supreme Court that the sale price of smaller piece of land can be looked upon while determining the market price of large land. In support of his contention he has relied upon the judgment titled as Ravinder Narayan & Ors. Vs. UOI AIR 2003 SC 1987, in which it is observed by Supreme Court that :
"It cannot, however, be laid down as an absolute proposition that the rates fixed for the small plots cannot be the basis for fixation of the rate. For example, where there is no other material it may in appropriate cases be open to the adjudicating LAC No. 199A/09 Page 16 of 42 Court to make comparison of the prices paid for small plots of land. However, in such cases necessary deductions/adjustments have to be made while determining the prices"
Ld. Counsel has further contended that LAC could have made necessary deductions from the sale price mentioned in the sale deed of village Mamurpur towards development cost and thereafter he could arrive at just market value. He further contended that sale price as mentioned in sale deed Ex. PW1/2 is Rs.26,75,000/ which after adding stamp duty comes to Rs.28,89,000/ per acre even if 30% deduction is made from the sale price, it would be around Rs.20 lac per acre.
Ld. Counsel for the petitioner has further relied upon the sale deed of village Khera Khurd Ex. PW1/1 where in 2 bigha 19 biswas land has been sold @ Rs. 32,40,000/ and sale deed Ex. PW4/1 wherein 10 bigha land has been sold @ Rs. 4 lacs. Average price of sale deed of village Khera Khurd comes to Rs. 50,64,347/ per acre and if 30% deduction is made it comes to Rs. 35,45,073/ per acre and since it is settled that land holder should be given best price of his land, therefore, parties should be given market value presently @ Rs. 35 lacs LAC No. 199A/09 Page 17 of 42 per acre.
Beside this, petitioner has also relied upon sale deed of village Holambi Kalan which was executed on 22.12.06 wherein 47 bigha 10 biswa land has been sold @ Rs. Four crore fifty lacs which comes to @ Rs. 4736/ bigha on Rs.4547368 per acre. 16.3 On the other hand Ld. Counsel for UOI has argued that it is well settled law that when the sale deed of acquired land is available then court cannot look into the sale deed of any other land whether it is adjoining land or land of another village. He has contended that he has proved six sale deed of village Holambi Kalan in which land holder had themselves purchased the land exactly 4 years 5 months back at much lower rate than what the LAC has awarded and even 15% increase is given on the said rate even than the rate awarded by the LAC is 10 times more than at what rate petitioner has himself purchased the land therefore, he is not entitle to any enhancement. I have perused the sale deed Ex.PW2/A to Ex. PW2/F, which was produced in evidence.
Details of sale deed of Holambi Kalan relied upon by the petitioner are as follows:
LAC No. 199A/09 Page 18 of 42
Exhibit Date Area Amount
(sale price + stamp duty)
RW1/A 19.03.1997 7 bigha 13 biswas Rs.2,43,000
RW1/B 19.03.1997 4 bigha 16 biswas Rs.1,62,000
RW1/C 19.03.1997 1 bigha 12 biswas Rs.1,62,000
RW1/D 19.03.1997 4 bigha Rs.3,78,000
RW1/E 19.03.1997 4 bigha 3 biswas Rs.1,62,000
RW1/F 19.03.1997 9 bigha 13 biswas Rs.3,24,000
Ld. Counsel for the UOI has further contended that 577 bigha land was sold @ Rs.14,30,000/ which comes to Rs.2748 per biswa and Rs.2,37,920/ per acre and even after 15% escalation per year from 19.09.1997 till the date of notification u/s 4 LA Act i.e. 22.08.2001(47 months) it comes to Rs.3,77,698/ per acre whereas LAC has awarded Rs.1,57,0000/ per acre which is 5 times higher. Hence, petitioner is not entitle to any enhancement. I have heard the arguments & perused the sale deed. In support of his contention Ld. Counsel for UOI has relied upon Shakuntala Bai & Others Vs. State of Maharashtra 1996(2) SCC 152. 16.4 I have considered the sale deed relied upon by petitioner and respondents. The sale deed relied upon by petitioner is of different village whereas sale deed relied upon by respondents/UOI is of same village and infact pertains to the acquired land. Hence, said sale deed is best piece of evidence LAC No. 199A/09 Page 19 of 42 as the land has been purchased by petitioner himself. It would be relevant to refer here the judgment of Supreme Court Shakuntalabai (SMT) & Ors. Vs. State of Maharashtra (Supra) In this case also the land owner has himself purchased the land at much lower rate then what the Land Acquisition Officer has granted to him. Land Acquisition Officer has granted market value of the front portion of the land ad measuring 4 Acres 18 Guntas at Rs.5,500/ per acre and for remaining land measuring 15 Acres 32 Guntas at the rate of Rs.4,500/ per acre where as reference court enhanced the compensation at the rate of Rs.1.25 per sq. ft. for the front portion of the land at Rs.one per sq. ft. for rest of the land, which was set aside by the High Court and High Court confirmed the rate given by the Land Acquisition Officer. The land holders filed appeal in the Supreme Court and Lordship of Supreme Court in para 4 has held that :
"that the High Court had not committed any manifest error of law or omitted to apply any correct principle of law. It is seen that if there is evidence or admission on behalf of the claimants as to the market value commanded by the acquired land itself, the need to travel beyond the boundary of the acquired land is obviated. The need to take LAC No. 199A/09 Page 20 of 42 into consideration the value of the lands adjacent to the acquired land or near about the area which possessed same potentiality to work out the prices fetched therein for determination of market value of the acquired land would arise only when there is no evidence of the value of the acquired land. In a case where evidence of the value of the acquired land itself is available on record, it is unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent lands. As stated earlier 38 and 44 might command different market value to the land situated in approved layouts, since the appellant himself had purchased the self same acquired lands in 1857 at Rs.10,000 for the entire 20 acres of land, the High Court was right in its view to consider the very same evidence to determine the compensation to the acquired land. On the assessment of the increase in the value by 10 times, the High Court had accepted that assessment of the appellant himself as PW9 and upheld the award of the Land Acquisition Collector since it reflects the same price as granted in the award under Section 11." LAC No. 199A/09 Page 21 of 42
Further in Kanwar Singh & Others Vs. UOI 1998 VIII ADSC 93 it is held that instances of adjoining villages cannot be taken to be of great evidentary value. Ld. Counsel for the petitioner has contended that sale deed Ex. PW2/A to Ex. PW2/F cannot be relied upon as there is a gap of more than 4 years, but I do not find any force in the contention of Ld. Counsel for the petitioner that since sale deed of petitioner is of 4 years and 5 months back and since than lots of change has taken place in and around the petitioner's land and potentiality of the petitioner's land has increased to the great extent therefore, this sale deed cannot be relied upon rather I am in completely agreement with the contention of Ld. Counsel for the UOI, Sh. Diwan, that sale deed upto 4 or 5 years prior to acquisition can be relied upon to determine market value. I found support of my this view in judgment titled as Oil and Industrial Gas Corporation Ltd. Vs. Rameshbhai Jivanbhai Patel & Anrs. III (2008) CCT 317 SC wherein Lordhship has held that :
"the said method is reasonably safe where the relied on sale transactions /acquisitions proceeds the subject acquisition by only a few years i.e. Upto 45 years."
LAC No. 199A/09 Page 22 of 42
The sale deed relied upon by UOI pertain to the land of village Holambi Kalan itself which was acquired through the same notification. Hence, in view of the above I held that sale deed of village Khera Khurd and Mamurpur cannot be relied to decide market value in this case and since value of sale deed relied upon by UOI is much less than what LAC has awarded.
16.5 As far as sale Ex. PW6/1 is concerned same is of dated 22.12.2006. Though the said sale deed pertained to the village Holambi Kalan itself, but since same has been executed after almost five years of the acquisition of land. It cannot be denied that due to acquisition of land lot of development has taken place in these five years which might have increase the value of the land. Therefore, it would not be safe to rely upon the said sale deed to determine the market value of the land which was acquired way back in the year 2001. 16.6 In view of the above, I held that petitioner has failed to prove that he is entitle to enhancement in compensation on the basis of sale transactions.
17. Land rate on the basis of location, potentiality and surrounding of LAC No. 199A/09 Page 23 of 42 land 17.1 Ld. counsel for the petitioner has contended that the LAC has not taken into account the potentiality of the land, that same is fit for residential/commercial purpose and is very closed to the developed area of Narela and Bawana where DDA and DSIDC has developed residential colony and Industrial area respectively. To prove the location of land Ld. Counsel has relied upon testimony of PW3 Sh. M.D. Sharma, Halka Patwari who has proved Aks Sizra of Village Holambi Kalan Ex.PW2/5. He has deposed that as per sizra in North of village Holambi kalan are Shahpurgarhi, Bhorgarh, Sanoth and Rajapur kalan, in south of village Holambi Kalan are Holambi Khurd, in the east of village Holambi kalan are Alipur and in the west of village Holambi Kalan are Bawana. The Narela Road and Ambala Railway Line touches boundary of village Holambi kalan, Bhorgarh Industrial Area also touches the boundary of village Holambi Kalan. The land in question touches the road which connects Holambi Kalan to Alipur - Narela road. Ld. Counsel for the petitioner has further argued that land of village Holambi Kalan and adjacent village has been acquired through various award for development of Narela Residential area and Narela Industrial Park. To prove this he has relied upon documents Ex. PW7/1 LAC No. 199A/09 Page 24 of 42 which is the list of award announced by LAC with respect to village Holambi Kalan, Holambi Khurd, Sanoth, Shahpurgarhi, Khera Khurd & Bhorgarh. This list do doubt prove that land of village Holambi Kalan & adjoining land has been acquired prior to notification of present case for the development of Industrial area and Residential area. Ld. Counsel for the petitioner has argued that DDA and DSIDC has allotted the land in the colony and industrial area developed by them and such as Narela Residential area and Narela Industrial Part at much higher rates and said fact is not taken into consideration by the LAC while determining market value. He has further argued that petitioner is entitle to same rate at which DDA & DSIDC has allotted plots. 17.2 To prove that DDA and DSIDC has sold plots at higher rate Ld. Counsel has relied upon copy of allotment letter of plot no. 52 Pocket 03, Sector A5, situated in Narela Residential Scheme, Mark D dated 04.01.2000 by which DDA Sold 70 sq. meter plot @ Rs.3028 per sq. meter in the year which comes to Rs.1,22,51,288/per acre. Perpetual lease deed dated 25.09.2003 Ex. PW4/2 wherein commercial plot no. 2 measuring 198 sq. meter at Narela Distt. Centre for Rs.48,16,000/ which comes to Rs.24,323 per sq. meter or Rs. 9,84,11,797/ per acre. Besides this, Ld. Counsel has also LAC No. 199A/09 Page 25 of 42 relied upon letter dated 20.04.2000 Mark E where DSIDC has proposed to sold the 100 sq. meter land @ Rs.3000/ per sq. meter in Narela Industrial area, which comes to Rs.1,21,38,000 per acre. Ld. Counsel for the petitioner has contended that LAC should have taken these rate inconsideration while determining the market value of the petitioner's land.
17.3 On the other hand Ld. Counsel for the respondent has argued that land of the petitioner was totally agricultural land and the same cannot be used for other purpose except for agricultural, hence, petitioner cannot be awarded the rate at which DDA and DSIDC has been allotting land to various plot holders. In support of this contention he has relied upon the judgment Lal Chand Vs. UOI VII (2009), SLT 439 and Ranvir Singh Vs. UOI 123 (2005) DLT 252 (SC).
17.4 I have considered the arguments and gone through the evidence. There is no doubt that acquired land is situated in the near the Industrial area of Narela and Narela residential colony developed by DDA in Narela. This is also not in dispute that DDA & DSIDC has allotted plots at much higher rates. But question is can the petitioner be given same rate at which DDA and DSIDC have selling their plots ? Answer is 'No' as recently Hon'ble justice Ravinderan in judgment Lal LAC No. 199A/09 Page 26 of 42 Chand Vs. UOI VII (2009) SLT 439 decided on 12.08.2009 has held that "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 layout 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 th 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 th eland loser. Thirdly, we are concerned with market value of free hold 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 of 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 layout in which the exemplar plots are situated. The 'deduction for development' consists LAC No. 199A/09 Page 27 of 42 of two components. The first is with reference to the area required to be utilised for development 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 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 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 because in an unauthorised layouts, usually no land will be set apart for parks, play ground and community facilities. Even if any land is set apart, it is likely to be minimal. The roads and drain will also be narrower, just adequate or 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 LAC No. 199A/09 Page 28 of 42 position with reference to industrial layout will be different. As the industrial plots will be large (say of the size of one or two acres or more as contrasted with size of residential plots measuring 100 sq. me to 200 sq.m) and as there will be very limited civic amenities and no play grounds, the area to be set apart for development (for roads, park, play grounds 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% and 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 of 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 layout, 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 layout 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 LAC No. 199A/09 Page 29 of 42 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 substations, etc. in addition to the usual areas earmarked for roads, drains, parks, play grounds and community/civic amenities. The purpose of the aforesaid examples is only to show that the 'deduction of development' factor is a variable percentage and the range of percentage itself being very wide from 20% to 75%.
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 person 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 factors: Some development authorities allot plots on freehold basis, that is by way of absolute LAC No. 199A/09 Page 30 of 42 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, sometimes there is a tendency among public to equate the lease premium rate (allotment price) charged by DDA, as beign 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."
In Laxmi Narain Bansal etc. Vs. UOI, RFA No. 677/1994 decided on 30.09.2008 and Division Bench of the High Court of Delhi while relying upon judgment Ranvir Singh Vs. UOI (2005) 12 (SCC) 59 Hon'ble Judge has observed that the judgment of Ranvir Singh culled out the principles as follows: LAC No. 199A/09 Page 31 of 42
a) Market value of the acquired land has to be assessed not only having regard to the comparable sales method but also having regard to the size of the land or other features thereof and several other relevant factors.
b) The market value of fully developed land cannot be compared with a wholly undeveloped land and even when they are adjoining or situated at a little distance.
While laying down this principle, the court commented upon the incorrect approach by the High Court to the contrary in the following words.
"25 The High Court without having regard to different sizes and different categories of land separately took into consideration the value of 48 sq.m. Of land at the rate of Rs.150 per sq. m. It keeping in view the fact that the Delhi Development Authority sought to create leasehold right whereas upon acquisition of land a freehold rights would be created, LAC No. 199A/09 Page 32 of 42 multiplied the said figure by two and arrived at a conclusion that the market value of 1 sq. m. of land at Rohini would be Rs.300/. The means figure thereof was taken at Rs.200/ per sq. m. as wholesale price of freehold plots in a developed condition. From the said Rs.200, 60% had been deducted towards costs of development and considering the large extent of land, the retail market price was worked out at Rs.80 per sq. m.
26. While adopting the said method, in our opinion, the High Court committed manifest errors. The market value of a fully developed land cannot be compared with a wholly underdeveloped land although they may be adjoining or situated at a little distance. For determining the market value it is trite, the nature of the lands plays an important role."
c) What price is fetched after full development cannot be the basis for fixing compensation in respect of the land which was agricultural LAC No. 199A/09 Page 33 of 42 (reliance was placed on Bhim Singh Vs. State of Haryana, (2003) 10 SCC 529).
d) For determining the market value, the sale deeds pertaining to portion of lands which are subject to acquisition would be the most relevant piece of evidence for assessing the market value of the acquired lands. Even market conditions prevailing as on the date of notification are relevant.
e) Sale price in respect of small piece of land cannot be the basis for determination of the market value of a large stretch of land, isolated deed of sale showing a very high price cannot be the sole basis for determining the market value. The court referred to the earlier judgment in the case of Union of India Vs. Ram Phool (2003) 10 SCC 167, wherein the judgment of this court granting compensation on the basis of sale price in respect of a small piece of land was set aside observing as under:
LAC No. 199A/09 Page 34 of 42
"6...It has been held in a catena of decision of this Court that the sale price in respect of a small bit of transaction would not be the determinative factor for deciding the market value of a vast stretch of land. As has been stated earlier, the extent of land acquired in the case in hand i.e. 5484 bighas. In that view of the matter, we have no hesitation to come to the conclusion that the High Court has wholly erred in relying upon Exhibit A1 in determining the market value of the acquired land extending to 5484 bighas. Since the onus is on the claimant to lead evidence on the determination of market value and if Exhibit A1, is taken out of consideration, then there is no residue of evidence on which the determination made by the High court enhancing the compensation awarded by the Reference Court should be sustained."
f) A judgment of Award determining the amount of compensation is not conclusive. It would merely be a piece of evidence. There cannot be any LAC No. 199A/09 Page 35 of 42 fixed criteria for determining the increase in the value of land at a fixed rate.
g) It was not necessary that the value of the freehold lands would be double the value of the leasehold lands. There has to be some basis for such a conclusion. This observation was made while commenting upon the perpetual lease deed executed by the DDA in respect of Rohini itself, after the development, as is clear from para 28 of the judgment, which reads as under:
"28. The High Court did not consider any relevant criteria on the basis whereof it could come to the conclusion that the value of the freehold lands would be double the value of the leasehold lands. The fact that in terms of the brochure the leasehold was to be perpetual one and the ground rent payable thereof was absolutely nomina being Re.1 per plot per annum for the first five years and thereafter at the rate 2 ½% of the total amount of premium, which was to be LAC No. 199A/09 Page 36 of 42 enhanced only after every 30 years, was relevant factor which should have been taken into consideration for arriving at a finding in that behalf. It is worth noting that the terms and conditions were set out for sale by the Delhi Development Authority on behalf of the President of India of perpetual leasehold rights in the residential plots under the Rohini Scheme.
29. A large amount of money was spent for development of Rohini over a period of 20 years. A large area has been earmarked for schools, hospitals, community halls, etc. May other advantages were also provided. In law it may be perceived that the scheme floated by DDA may not be viable and as such the possibility of reduction of the rate at a future date could not be ruled out."
In the light of above said judgment, I held that land rate at which was fixed by DDA or DSIDC allotted plot cannot be a good exampler to determine market price of undeveloped agricultural land.
LAC No. 199A/09 Page 37 of 42
18. Ld. Counsel for the petitioner has also contended that LAC has determined the market value on the basis of govt. policy of fixing minimum rate of agriculture land dt. 09.08.2001 Ex. PW4/1. In the said policy minimum rate was fixed @ Rs.15,70,000/ which made effective from 01.04.2001, where as notification u/s 4 was issued on 22.08.2001 but the LAC has not granted any compensation for the price rise for the intervening period 01.04.2001 to 22.08.2001 Ld. Counsel has contended that 12% increase should be given for the intervening period.
19. On the other hand Ld. Counsel for the respondent has contended that since Rs.15,70,000/ is determined by the LAC is fair compensation therefore, petitioner is not entitle to any enhancement.
20. On going through the award, in para 2nd of page 22 LAC has mentioned that "In a policy announcement which came into effect from the financial year 20012002, Government of National Capital Territory of Delhi fixed the indicative prices of agricultural land @ Rs.15,70,000.00 per acre for the acquisition of agricultural land vide their order No. F.9(20)/80/L&B/LA6696 dated 09.08.2001 which are applicable with effect from 01.04.2001.
LAC No. 199A/09 Page 38 of 42 The notification under section 4 was issued on 22.08.2001 and the price of the land is to be determined as on the date of notification under section 4 of the Land Acquisition Act itself. Hence, in view of the above facts I find Rs.15,70,000.00 per acre to be the most reasonable price for the agricultural land as on 22.08.2001. I accordingly, determine the market value of the agricultural land @ Rs.15,70,000.00 per acre." Thus from the perusal of award it is apparent that minimum rates of agricultural land made applicable from 01.04.2001, whereas in case notification u/s 4 was issued on 22.08.2001. I found force in the contention of Ld. Counsel for the petitioner that atleast petitioner is entitle to escalation for the intervening period i.e. from the date when the Government policy become effective till the date of notification u/s 4 of the LA Act i.e. 01.04.2001 to 22.08.2001. There are numerous judgment which fortify my this view, in Mahinder Singh Vs. UOI Hon'ble High Court has awarded 11.5% compound interest for the intervening period between two notification where as in recently in Partap Singh Vs. UOI LA Appeal no. 780/2008 dated 19.12.2008 Hon'ble High Court has granted 12% increase for the intervening period between two sale deed since gap was about 10 months approx. LAC No. 199A/09 Page 39 of 42 Similarly in Bedi Ram & Ors. Vs. UOI and Ors. 93(2001) DLT 150, 12% increase has been given by the High Court. Considering all these judgment I am of the view that it would be justified to give increase @ 12% for the intervening period between the date of government policy & notification u/s 4 of LA Act (i.e. 01.04.2001 to 22.08.2001 = 143 days) it comes to Rs.16,43,811/ per acre. Thus petitioner get an enhancement of Rs.73,811 per acre
21. As far as tubewell is concerned LAC in his award has given the detail of khasra numbers in which tubewell is existed but it does not contain khasra numbers of petitioner's land in the list. No independent evidence has been led by petitioner to prove that there was tubewell in his land, hence I held that petitioner has failed to prove that there was any tubewell in his land. Hence, he is not entitle to any compensation on this account.
22. As far as compensation for standing trees and structures is concerned, since LAC has mentioned that he will determine the compensation for trees and structure in supplementary award, hence I am of the view that this issue cannot be decided through present award.
23. I summarise the issue no. 1 as follows:
LAC No. 199A/09 Page 40 of 42
a) that petitioner shall be entitle to market value at the rate of its Rs.16,43,811/ thus getting an enhancement of Rs.73,811/ per acre;
b) Besides above, petitioner shall be entitled to other statutory benefit i.e 12% Addl. Amount as per section 23 (1) A & 30% solatium u/s 23 (2) & will be entitle to interest on the market value @ 9% per annum for the first year & 15% for subsequent year till the making of payment of enhanced compensation by LAC as per provision of Section 28 of the Act.
c) that petitioner's claim for enhancement of compensation for tubewell and others structure is rejected.
Issue no. 1 decided accordingly.
24. Findings on Issue No.2 - RELIEF 24.1 In view of the findings on Issue no.1, the petitioner is entitled to the following reliefs:
a) enhancement in compensation from Rs.15,70,000 per acre to Rs.16,43,811 per acre i.e. enhancement @ Rs.73,811/ per acre for the land as per statement u/s 19 LA Act ;
b) additional amount u/s 23 (1A) @ 12% p.a., on the market value from the date of notification u/s 4 of the LA Act till LAC No. 199A/09 Page 41 of 42 the date of award or dispossession, whichever is earlier ;
c) solatium u/s 23(2) of LA Act @ 30% on the enhanced amount of compensation ;
d) interest under Section 28 of L.A Act at the rate of 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 ;
24.2 Reference is disposed of accordingly. 24.3 Decree sheet be prepared accordingly. A copy of the judgment be sent to LAC for necessary action. 24.4 File be consigned to record room.
Announced in the open court (SANJEEV KUMAR) today on 12.01.2011 ADDITIONAL DISTRICT JUDGE:
DELHI LAC No. 199A/09 Page 42 of 42