Delhi District Court
Sh. Kartar Singh vs Union Of India on 6 September, 2010
IN THE COURT OF SH. SANJEEV KUMAR:
ADDITIONAL DISTRICT JUDGE01 : ROHINI COURTS : DELHI
LAC No. 104A/09
UID 02404C0048422009
IN RE :
SH. KARTAR SINGH
S/O LAL CHAND
R/O VILLAGE & PO SANOTH
DELHI
...... PETITIONER
Versus
1. UNION OF INDIA
THROUGH LAND ACQUISITION COLLECTOR,
NORTHWEST, DELHI.
2. DELHI DEVELOPMENT AUTHORITY
THROUGH ITS VICE CHAIRMAN,
VIKAS SADAN, INA MARKET NEW DELHI.
.........RESPONDENTS
Award No. 17/0304
Village SANNOTH
Date of Award/ Date
of Announcement of Award 22.10.2003
Notification U/S 4 F.11 (56)/2001/L&B/LA/14043
LAC No. 104A/09 Page 1 of 34
dt. 07.12.2001
Notification U/s 6 F.11 (56)/2001/L&B/LA/16237
dt.16.01.2002
Notification U/s 17 (i) F.11(56)/2001/L&B/LA/16238
dt.16.01.2002
Date of Receipt of Reference : 01.07.2005
Date of Arguments : 27.07.2010
Date of Decision : 06.09.2010
REFERENCE PETITION UNDER SECTION 18 OF THE
LAND ACQUISITION ACT 1894
J U D G M E N T
1. A large tract of land ad measuring 222 bighas 05 biswas 10 biswansi in village Sannoth, Delhi, was acquired by the Govt. for a public purpose namely for shifting of industrial units from the city area of Delhi/New Delhi. Notification u/s 4 of The Land Acquisition Act, 1894 (hereinafter referred to as 'LA Act') was issued on 07.12.2001. Declaration u/s 6 & 17 (i) LA Act was made on 16.01.2002 ; Thereafter, Award bearing no. 17/0304 was announced on 22.10.2003. The Land Acquisition Collector (hereinafter called as 'LAC') determined market price of the acquired land as Rs.15,70,000 per acre. LAC No. 104A/09 Page 2 of 34
2. The brief facts giving rise to the present reference petition are that petitioner is the owner of the land bearing Khasra nos.29//11min(104), 30//15min(013), 17min(006) total measuring 2 bigha 03 biswas, situated in the revenue estate of Village Sanoth, Delhi. The said land was acquired along with other land for for public purpose namely for construction of 80 meter vide road for development of Narela Township under Planned Development of Delhi. LAC has determined the market value @ Rs.15,70,000 per acre. Being aggrieved with the said value the petitioner has challenged the said award on the following grounds :
i) the market value as assessed by LAC is highly inadequate and unjust and does not represent the true market value of the land prevailing in the area ;
ii) the LAC has failed to appreciate that the land of the petitioner is very fertile and productive being irrigated through sweet water ;
it was giving commercial and seasonal crops ;
iii) the LAC has failed to appreciate that the said land is levelled and has great potential value;
iv) that the said land of the petitioner has a great potential value as his land is situated on the main road and surrounded by farm houses, 80 mtrs wide road connecting to the G.T. Karnal Road, LAC No. 104A/09 Page 3 of 34 Bahadurgarh, Rohtak Road, Rohini Posh Residential Colonies, Industiral buildings, Narela Industrial Areas, wheat Mandi Fruit Mandi, railway station, Ghoga Air Port, DSIDC area Bawana and Main High Way road Narela to Bawana, Narela FCI Godown etc.
v) that LAC has grossly erred for not awarding any compensation for residential house, Dharam Kanta and other ancillary constructions i.e. For shelter for animals and tubewell of the petitioner and the same was constructed /installed by petitioner much prior to the notification u/s 4 LA Act;
vi) that DSIDC has provided the adjoining land to the Industrial unit @ more Rs.8,000/ per sq. yards;
vii) that land of the petitioner is very fertile and give atleast 3 crops in a year;
viii) that land of petitioner was having trees and LAC has not given sufficient compensation for trees ;
ix) that LAC has not awarded compensation for trees, crops, tubewell, pucca room etc.
3. The petitioner has demanded compensation of his land @ Rs.5,000 per sq. yards. He has also claimed compensation of Rs.35 lacs for his LAC No. 104A/09 Page 4 of 34 residential house, dharam kanta and other structure and Rs.10,000/ for damage done to crops, Rs.20,000 for loss of trees and Rs.1.5 lac for tubewell.
4. 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") vide their written statement, in which they had strongly denied that LAC has not assessed the appropriate market value of the land. The UOI in his reply has denied that their exist any standing trees, crops, tube well etc on the land of the petitioner.
5. Respondent no. 2 DDA in his reply has stated that land is acquired for the purpose of public interest i.e. for construction of 80 meter vide road for development of Narela Township under Planned Development of Delhi and the LAC has taken all the facts into account while granting compensation to the petitioner hence, compensation granted by the LAC is just and adequate. Both the respondents has prayed that no enhancement should be granted in favour of the petitioner and present petition is dismissed.
LAC No. 104A/09 Page 5 of 34
6. During admission denial of documents Ld. Counsel for the Petitioner has admitted the statement u/s 19 LA Act and following issues were framed:
1. Whether the petitioner is entitled to any enhancement in compensation. If so, to what amount ?
2. Relief.
7. In support of his claim, the petitioner has examined 5 witnesses :
Petitioner has examined himself as PW1 and tendered his affidavit (no exhibit given). He has also filed Khasra girdawari for the year 200001 Ex. PW1/A, electricity bills as Ex. PW1/B, certified copy of valuation report as Ex. PW1/C and reference petition as Ex. PW1/D. PW2 Sh. Sanjeev Kumar, Halka Patwari Village Bawana has proved the khasra girdawari for the year 199899 and 19992000 of land bearing khasra no. 29/11 min, 30/15 min and 30/17 min, situated in village Sanoth are Ex.PW2/1 and PW2/2 respectively. PW3 Sh. Baljeet Singh, Asstt. Grade III, DSIDC Bawana has proved LAC No. 104A/09 Page 6 of 34 the details of expenses incurred as Ex. PW3/1 (Colly). PW4 Sh. R.P. Srivastava, Asstt. GradeI, Office of Commissioner of Industries has proved the letter of allotment of plot under Relocation Scheme to M/S Rathore Enterprises as Ex. PW4/1 PW5 Sh. Shyambir Singh, Patwari from LAC (NW) has proved the kabja Karyawahi of village Sanoth vide award no. 17/200304, valuation reports of khasra no. 30/15, Dharam Kanta, Sanoth in the names of Sh. Kartar Singh, Sh. Mohan Lal and Sh. Pawan Kumar as Ex. PW5/1. He has also proved the file of supplementary award no. 12A/200506 of award no. 12/200506, proceedings sheets of supplementary award and valuation report of Khasra no. 28/23, 24, 29/1, 33/3/1, 4/1/1 as Ex. PW5/2.
8. The counsel for respondent no. 1 has not lead evidence and placed reliance upon the award in question Ex. R1.
9. I have heard the Ld. Counsel for the parties and have also carefully considered the record.
LAC No. 104A/09 Page 7 of 34
10. FINDINGS ON ISSUE NO. 1 :
10.1. It is an established fact that the compensation payable for the land acquired by the Government, cannot be ascertained with mathematical accuracy. The price of such land can be assessed taking into account inter alia, the opinion of valuators or experts ;
the price paid within a reasonable time in a bona fide transaction of purchase of the acquired land or the lands adjacent to the acquired land and possessing similar advantages and a number of year's purchase of the actual or immediate prospective profits from the acquired land. The other factors relevant for this purpose are the land's nature, its location, potential including surrounding developed area etc. 10.2. Valuation on the basis of Agricultural Yield The petitioner led his examinationinchief by way of affidavit reiterating abovesaid averments made in the petition. He has stated in para 8 of his examinationinchief, that his land was yielding 3/4 crops in a year i.e. Rice, wheat, vegetables like tomatoes & lady fingers. In para 9 he has deposed that he used to earn Rs.1,00,000 to Rs.1,25,000/ per bigha after deduction of LAC No. 104A/09 Page 8 of 34 cost. In his crossexamination, stated that he was also earning from the milk and that he was paying tax annually but he do not remember whether it was income tax. He has admitted the fact that he has not filed any document with respect to yield from the said land and income therefrom.
10.3. Not going into this any further, even if the petitioner is believed that he was getting three to four commercial & seasonal crops in a year from the said land, it is significant to note that the petitioner had not stated anything in his petition, about the quantum of produce, the rate of crops. Hence, first time stating in the evidence that he was earning Rs.One Lac to One Lac Five Thousand cannot be accepted as true, particularly in the absence of any corroboratory evidence.
10.4. Hence, I held that the petitioner has failed to substantiate his averment about the earnings from agricultural produce from the said land. He has failed to prove his claim for enhancement on the basis of agricultural yield.
LAC No. 104A/09 Page 9 of 34
11. Valuation on the basis of Sale Deeds 11.1. In the award, the LAC has observed that interested persons though generally claimed exorbitant prices of their land but have not filed any documentary evidence in support of their claim. Even before this court, the petitioner has failed to place on record any sale deed of this village or of any other neighbouring village. 11.2. On the other hand, Ld. Counsel for the UOI had adopted the evidence of Lakhi Ram Vs. UOI LAC No. 133/05, which was decided by Ld. ADJ Ms. Poonam A. Bamba on 01.11.2007. In that case UOI has produced a copy of a sale deed executed on 04.12.2001 by one Sh. Sumer Singh son of Sh. Sahi Ram with respect to 8 bighas 101/2 biswas of land, situated in the revenue estate of village Narela, for a sum of Rs. 13,60,000/ Ex. R2. The rate of land as per this sale deed comes to around Rs. 1,59,531/ per bigha i.e. less than the compensation already awarded by the LAC @ Rs. 2,87,916.66/ per bigha. This sale deed is of no relevance in the instant case, in view of the provisions of Section 25 LA Act which reads as under : Amount of compensation awarded by court not to be lower than the amount awarded by the Collector : The amount of compensation LAC No. 104A/09 Page 10 of 34 awarded by the court shall not be less than the amount awarded by the Collector under section 11."
It would also be pertinent to mention here that the Hon'ble High Court in its judgment dated 27.04.2006 in Gajraj Singh Vs. UOI, [2006 VI AD (Delhi) 13], had observed with respect to the sale deed of a lessor amount relied upon by the UOI in that case as under : "The sale deeds.............. are inconsequential inasmuch as the Collector had already awarded compensation higher than the rates indicated in those sale deeds. The Union of India is not aggrieved and in any case as per provisions of Section 25, the Reference Court or this Court would have no jurisdiction to reduce the amount awarded by the Collector to the claimants in land acquisition proceedings. Thus, no detailed discussion on this issue is called for."
Thus, in view of Section 25 LA Act and the settled position of law, the sale deed Ex. R2 relied upon by the respondent is of no assistance, to arrive at market value of the acquired land, on that basis.
11.3. However, since petitioner has failed to proved on record any sale deed of higher value than what LAC has awarded therefore, I held that petitioner is not entitle to enhancement of compensation on LAC No. 104A/09 Page 11 of 34 the basis of sale transaction.
12. Valuation on the basis of Location, Potential and Comparability of the Acquired Land with Surrounding Land : 12.1. Ld. Counsel for the petitioner has contended that LAC has failed to appreciate the true potential of his land ; that LAC has failed to consider that all the amenities like electricity, water, tele communications etc. are available to the petitioner's land ; the petitioner's land is surrounded by Farm Houses, Residential colony of Rohini, Narela Industrial Area, Wheat and fruit Mandi, Railway Staion, Ghoga Airport, Narela FCI Godown ; it is connected to G.T. Karnal Road, Bahadurgarh Rohtak Road by 80 meter wide road ; that the market value of the land in the area is more than Rs. 15,000/ per sq. yds. ; that the petitioner's land had potential for usage for residential/commercial purposes. 12.2. The respondents have denied these averments. UOI has stated that the said land is not surrounded by any developed or undeveloped colony and was basically an agricultural land and cannot be compared with the industrial land and land of developed colonies. LAC No. 104A/09 Page 12 of 34 It is further stated that the petitioner failed to file any claim/objections and any documents in support, before LAC. 12.3. PW1 in his examinationinchief has deposed that though the said land was being used for agricultural purposes, but it was fit for usages as residential, commercial and industrial site ; that land of village Sanoth is surrounded by the revenue estate of villages Bawana, Narela, Holambikalan and Holambi Khurd. Ld. Counsel for the petitioner has argued that land of village Bawana, which is adjoining the acquired land has been developed for shifting of industries from city area of Delhi/New Delhi and is now known as DSIDC Industrial Complex ; that Narela Township comprising of residential, commercial and industrial locations is hardly at a distance of about 2 km from the acquired land ; G.T. Karnal Road is hardly 2 KM away from land under acquisition ; NarelaBawana Road passes adjoining the land under acquisition ; the land under acquisition is adjacent to DelhiAmritsarAmbala Railway Lines and lies between HolambiNarela Railway Station. In view of the same, the acquired land had great potential value, which has been ignored by LAC & Even if 50% deduction is made in land rates offered by DDA and DSIDC to petitioner, market valueof the land LAC No. 104A/09 Page 13 of 34 of petitioner would not be less than Rs.2000 per sq. meter. 12.4. The petitioner's witness PW2 Sh. Sanjeev Kumar, Halka Patwari, village Sanoth, proved shijra Ex. PW2/3 of village Sanoth and he has proved the location of the land. He has deposed that land comprised in khasra no. 30/15 min and 30/17 min is situated in main Narela - Bawana Road touches the khasra no. 30/15 towards east. The Sannoth and Ghogha crossing of Narela Road is 425 feet away from the land in question. The boundary of village Bawana is approximately one acre away from the land comprising in Khasra no. 30/17. Accordingly to said Aks Sizra in North of village Sannoth are Rajapur Kalan, Bhorgarh, Bankner. In South of village Sannoth are Holambi Kalan and Bawana. In the east of village Sannoth are Rajapurkalan and Holambikalan and in the west of Village Sanoth are Bawana and Ghogha.
12.5. Respondent has not disputed the location of the land or that development has been going on in villages Bawana and Narela. Same also reflects on the potential of the land of village Sanoth. But at the same time, it has to be kept in mind that the land for LAC No. 104A/09 Page 14 of 34 Narela Township was started to be acquired from 1963 and was developed over a period of more than 30 years. Therefore, it needs to be examined whether the land of the petitioner had the potential of fetching a price of Rs. 5,000/ per sq. yds., if sold in open market. As already noted above, no sale deed has been produced by the petitioner ; Sale deed produced by UOI is inconsequential. Petitioner's counsel has contended that DDA & DSIDC had sold the plot in Narela Township and Narela Development area at much higher rate than Rs.5000/ per sq. yard claimed by the petitioner. He has relied upon document Ex. PW4/1 which is a allotment letter of industrial plot no. 6 measuring 250 sq. meter in sector 3, Bawana which were sold by DSIDC @ Rs.4,200/ per sq. meter on 23.10.2000. 12.6. On the other hand Ld. Counsel for UOI has argued that rate at which DDA & DSIDC had allotted there plot cannot be compared with petitioner's land as petitioner's land is purely agricultural land whereas DDA & DSIDC is selling plot after developing it. In support of the contention Ld. Counsel has relied upon number of judgments like Ranbir Singh Vs. UOI (2005) 12 (SCC_ 59 & Lal LAC No. 104A/09 Page 15 of 34 Chand Vs. UOI VII (2009) SLT 439.
12.7. I have perused the judgment relied upon by UOI. In Lal Chand Vs. UOI VII (2009) SLT 439 decided on 12.08.2009 while dealing with the similar issue 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. In a recent judgment 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. 104A/09 Page 16 of 34
1. 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.
2. 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.
3. What price is fetched after full development cannot be the basis for fixing compensation in respect of the land which was agricultural (reliance was placed on Bhim Singh Vs. State of Haryana, (2003) 10 SCC 529).
4. 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.
5. 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.
Reference in this regard can also be made to the dictum of Hon'ble High Court in American Universal Electric (India) Ltd. Vs. UOI 2001 II AD (Delhi) 867, wherein it was held that that there could be hardly any comparison between an undeveloped agricultural land, though intended to be used for residential purpose and that of a developed one. In R.P. Singh LAC No. 104A/09 Page 17 of 34 Vs. Union of India AIR 2005 SC 4189 it was held that :
"Contention raised by the counsel for appellant that they should be paid higher compensation because the respondents were now selling the land at the rate of Rs.25 lac per bigha cannot be accepted. Counsel for the respondent has brought the notice that the land is now fully developed and for its development respondent have spent a lot of money and the claimant would not be entitle to a higher price simply after 40 years of acquisition and its development, the land was being sold at higher price."
In view of the observations made above, I am of the view that petitioner's claim that he is entitled to a minimum compensation of Rs.5,000/ per sq. yds. as land in neighbouring Narela Township/Narela Industrial Area, Rohini Residential Complex, was being sold at much higher price, can not be accepted. But at the same time, the fact that development has been going on in the neighbouring villages of Bawana, Narela, Holambi Kalan etc. does reflect on potential of the adjoining land which is to be taken into account while determining market value. 12.8. The petitioner has further argued that the LAC has awarded compensation for petitioner's land on the basis of minimum LAC No. 104A/09 Page 18 of 34 agricultural price of Rs. 15,70,000/ per acre, as on 01.04.2001 as fixed vide Govt. policy circular dated 09.08.2001; that the notification u/s 4 LA Act in the instant case was issued on 07.12.2001; the LAC has not granted any compensation towards the rise in prices during the period 01.04.2001 to 07.12.2001. 12.9. Ld. Counsel for the respondents have themselves adopted the evidence of Lakhi Ram Vs. UOI (Supra) in which Ld. Counsle Predecessor had already decided the market value of village Sannoth @ Rs.16,99,042 on the basis of giving increase @ 12% of intervening period between the date of govt. policy and section 4 notification. The present reference pertain to same village and same award and land of petitioner has been acquired by same notification u/s 4 of LA Act. No evidence has been produced by the respondent that land of petitioner is of inferior quality then the petitioner's land. Hence, I determine the market value of petitioner's land @ Rs.16,99,042 per acre giving an enhancement of Rs.129,042/ per acre.
13. Compensation for structure: LAC No. 104A/09 Page 19 of 34 13.1. Ld. counsel for the petitioner has contended that LAC has not awarded any compensation for the structure as the petitioner had constructed a residential house, Dharam Kanta and other ancillary constructions like shelter for animals and tube well on the acquired land.
13.2. Petitioner has claimed Rs.35 lac for cost of structure. To prove the existence of structure Ld. counsel for the petitioner had relied upon the testimony of petitioner/ PW1 Kartar Singh who in his examination in chief led by way of affidavit ( no exhibit given) has deposed in para No.4 "that prior to and at the time of acquisition of my above land there use to exist 10 rooms alongwith latrine , bathroom, kitchen, kotha, shed/ shelter for cattle as well as Dharam Kanta on a portion of 10 biswa........... The aforesaid 10 rooms were being used by me for storage of agricultural produces , cattle feeds and for habitations of cattle as well as keep by me for my dairy farm business. The existence of the above structure/ construction on my above land as on the date of notification and acquisition of my land is duly reflected from the Khasra Girdawari for the year 20002001, electricity as well as water bills and certified copy of the valuation report obtained by the LAC lying in the file pertain to the award in question and same is EX PW 1/A, PW 1/B ( colly) and PW 1/C respectively. Ld. counsel for the petitioner has further contended that even LAC has got carried out the valuation of the said land through approved valuer and assessed that total LAC No. 104A/09 Page 20 of 34 cost of construction is Rs.8,04,050/. The said valuation report is collectively EX PW 5/1".
Ld. counsel further contended that LAC got the structure evaluated through the valuer Shri B P Singh, who has given his report who has assessed the value of structure as Rs.8,04,050/. Thus petitioner is entitled to the said sum as cost of structure. 13.3. On the other hand Shri N.S. Diwan, Ld. counsel for UOI had contended though LAC has got conducted survey of the structure and valuation of the structure through PWD but LAC had rejected the compensation of the structure as same was illegal and was built up without the permission of the authority. Hence, petitioner is not entitle to any compensation for the structure. 13.4. In support of his contention Ld. counsel for the UOI had relied upon the judgment of (1) Naresh Kumar and others Vs. GNCT( Delhi), W P (C) 2185/2008 dated 04.03.10 , (2) State of Orissa Vs. Taj Kishore Dass , AIR 1996 SC 1508 and (3) Bhagat Ram Vs. Kisan & Others, AIT 1985SC 962. On the other hand in LAC No. 104A/09 Page 21 of 34 rebuttal, Ld. counsel for the petitioner had relied upon the judgement.
13.5. I have heard the arguments and have gone through the record. 13.6. As per factor eight of section 24 of LA Act any increase of the valuation of land on account of its use it is forbidden by law or oppose by public policy is to be ignored by the court. 13.7. As evident from the report of valuer Shri B P Singh as EX PW 5/1 relied upon by the petitioner himself that there was Dharam Kanta on petitioner land. Even the petitioner has himself admitted in his claim about the existence of Dharam Kanta. Thus the petitioner was using his land for commercial purpose. 13.8. As per section 23 of the Delhi Land Reform Act a person cannot use his land for any other purpose other than agricultural or any other purpose connecting to it. Section 23 of the DLR Act 1953 is reproduced as below: " Use of holding for industrial purposes(1) A Bhumidhar or Asami shall not be entitled to use his holding or part LAC No. 104A/09 Page 22 of 34 thereof for industrial purposes, other than those immediately connected with any of the purposes referred to in Section 22, unless the land lies within the belt declared for the purpose by the Chief Commissioner by a notification in the Official Gazette:
Provided that the Chief Commissioner may, on application presented to the Deputy Commissioner in the prescribed manner, sanction the use of any holding or part thereof by a Bhumidhar for industrial purpose even though it does not lie within such a belt .
(2) Where permission for industrial purposes is accorded, the provision of this Chapter relating to devolution shall cease to apply to the Bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject."
13.9. The petitioner had not placed any document to prove that he has obtained sanctioned from the prescribed authority for constructing Dharam Kanta. Hence, in my view the petitioner was using the land for the purpose which was not connected with agriculture, therefore, he was using the land for the purpose in violation of provision of section 23 of DLR Act, hence, cannot be awarded compensation for his illegal use, though he might have suffered loss. In this regard I found support from judgement relied upon by the Ld. counsel for the respondent titled as Naresh Kumar and LAC No. 104A/09 Page 23 of 34 other (Supra). In that case also LAC in review award No. 6/03 04 had disallowed the compensation for structure on the ground that same was illegal . Against the said review award petitioner had filed writ petition in the High Court and Division Bench of Hon'ble Justice Shri Sanjay Kishan Kaul & Hon'ble Justice Ms. Veena Birbal in page No. 6 and 7 of judgement while quoting Section 24 of the Land Acquisition Act ( hereinafter called as LA Act) had held that without sanction of MCD compensation cannot be granted for illegal structure. The relevant para of the said judgment is reproduced as below: " Matters to be neglected in determining compensation But the Court shall not take into consideration "xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 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". Under the said provision, compensation for illegal structure is to be neglected. The factum of there being illegal structure is not in dispute. Petitioner has annexed the copy of Review Award with the writ petition. In the said review award, reasons for deduction are given. Petitioner has not stated anything in this regard in the petition nor has filed rejoinder denying the said averments. Further nothing is placed on record to show that structure existing at the time of acquisition were in accordance with the Sanction Plan of MCD or that construction was done as per Building Bye Laws. Petitioners cannot be allowed to take advantage of their own illegal acts. Technicalities cannot be allowed to defeat the express provisions of the Statute. Provisions of Section 24 Clause 8 are very LAC No. 104A/09 Page 24 of 34 clear. Huge public money is involved. It will not be in the public interest also to accept the contention of petitioner.
13.10. As far as contention of the Ld. counsel for the petitioner that since construction was very old and no action was taken by the authority U/S 81 of the DLR Act, therefore, his structure has become legal and petitioner is entitled to compensation. I do not find any force in this contention, no illegal act can be made legal only because the authorities have not chosen as per law. 'No two wrongs can make one right.' It is also known fact that the Govt. officials who have duty to stop illegal construction have failed to do their duty and result is the numerous unauthorised colony on agricultural land. But in action of govt. official does not anyway make the illegal structure of petitioner as legal and how so far old it was.
13.11. Another contention put forward by the Ld. counsel for the petitioner that entire structure was not use for Dharam Kanta purpose and only small portion was used for Dharam Kanta, whereas rest of the built up premises was used for residential purpose and animal husbandary as he was running dairy, which LAC No. 104A/09 Page 25 of 34 is permissible as per section 22 of Delhi Land Reform Act and also is a improvement as per section 3 (12) of the LA Act. I am agree with this contention of Ld. counsel for the petitioner that agricultural land as per DLR Act can be used for purpose some other which are connected to the agricultural. Section 22 of the Delhi Land Reform Act 1995 "a Bhumidhar or Asami can use his land for any purpose connecting with agriculture , horticulture or animal husbandry which include pessiculture and poultry farming.
Section 3(12) of the Land Acquisition Act is reproduce below:
" Definitions: " improvement" means with reference to a holding
i) a dwelling house erected on the holding by the tenureholder for his own occupation or any other constructions erected or set up by him on the holding for purpose connected with agricultural, horticultural or animal husbandry which includes pisciculture and poultry farming;
(ii) any work which adds materially to the value of the holding and is consistent with the purpose aforesaid, which if not executed on the holding, is either executed directly for its benefit or is, after execution made directly beneficial to is; and subject to the forgoing provisions of this clause, includes
a) the construction of wells, water channels and other works for the supply or distribution of water for the purpose aforesaid;
b) the construction of works for the drainage of land or for the protection LAC No. 104A/09 Page 26 of 34 of land from erosion or other damage by water;
c) the reclaiming, clearing, enclosing, levelling or terracing of land;
d) the erection in the immediate vicinity of the holding otherwise than on the village site, of buildings required for the convenient or profitable use or occupation of the holding;
e) the constructions of tanks or other works for the storage of water for purposes aforesaid;
f) the planting of trees and groves on the holding;
g) the renewal or reconstructions of any of the foregoing works or such alterations therein or thereto, as are not of the nature of mere repairs;
Provided that such water channels, embankments, enclosures, temporary wells, or other works as are made by a tenure holder in the ordinary course of his requirements for purposes aforesaid shall not be deemed to be improvements;
To prove his contention that land was used for keeping the cattle and residential purpose, petitioner's counsel had again relied upon testimony of Petitioner in which petitioner has deposed that he had constructed 10 rooms alongwith latrine, bathroom, kitchen, kkotha, shed/ shelter etc. on a portion of 10 biswa of land. But same is contrary to the valuation report relied upon by the petitioner himself. As per valuation report Ex.PW 5/1 (collectively) total construction has been shown on only 110 sq.meter, which come to only 2.6 biswa. Hence, valuation report relied upon by the petitioner did not support the case of the petitioner that there were construction on 10 biswas of acquired LAC No. 104A/09 Page 27 of 34 land. Further petitioner had not led any evidence to prove that how much constructed portion was used for Dharam Kanta and how much for residential and for keeping the animal, the onus was on him to prove the same. In the absence of evidence it is not possible to segregate the portion which was used for residential or for keeping the animal was for Dharam Kanta. Therefore, entire construction had to be presumed to be used for commercial purpose, which is forbided under the law.
13.12. Even otherwise from the perusal of provisions of section 22 of the DLR Act and Section 3(12) of the LA Act it is apparent that construction for dwelling house is permitted to a land holder if it is constructed for his own occupation or for purpose connected with agriculture which include animal husbandary also. But to came in the ambit of improvement petitioner had to prove that he was using the remaining land for agricultural purpose and that constructed for dwelling house on small portion & remaining land should was used for agricultural purpose or purpose connected to it. On examination of khasra girdawari of land of 29/11min, 30/15 min and 30/17 of year 199899 and 200001 min Ex.PW2/1 and LAC No. 104A/09 Page 28 of 34 Ex. PW2/2 I found that column of crop has been left blank, which means that land was not used for agricultural purpose. Hence, when the land was not used for agricultural purpose, it cannot come into the ambit of improvement.
13.13. In support of his claim for structure Ld. Counsel for the petitioner has also strongly relied upon the supplementary award No. 12 A/200506 of village Barwala Ex. PW5/2 passed by LAC. Ld. Counsel has contended that in the similar situation compensation of structure has been awarded by the LAC, where as compensation for petitioner has been declined, which is arbitrary act on the part of LAC. I have perused the award, no doubt LAC had awarded the compensation for structure. But he has awarded the same mainly on the ground that land is covered under Punjab Act, hence DLR Act not apply on the same. Since that question is not before this court that whether under Punjab Land Revenue Act illegal construction is allowed or not, I will desist to comment on it. However, as far as DLR Act is concerned it completely forbid use of land for any purpose other than agricultural, therefore, construction carried on by the petitioner on acquired land is illegal as stated above as per section 24 of LA Act for grant of LAC No. 104A/09 Page 29 of 34 compensation for anything which is forbidden by law. 13.14. As far as judgment relied upon by the petitioner is concerned I am of the view that same is not applicable in the facts of the present case as the first judgement titled as Nilima Gupta Vs. Yogesh Saroha and other 156 ( 2009), DLT 129 is concerned in this case Hon'ble Justice S .N. Dhingra has held that once illegal construction is made on the agricultural land and which are converted into plots and full unauthorised colonies on the said land it losses its character and does not remain agricultural land and Civil Courts have jurisdiction to entertain the suit U/S 6 of the Specific Relief Act. This judgement has been given by the Hon'ble Justice by keeping the fact of the realities as exist in the unauthorised colonies which were plots on the agricultural land. Whereas in the present case the petitioner's land is purely an agricultural land and nowhere petitioner has stated in his evidence or claim that this was an unauthorised colony. Therefore, I am of the view that DLR Act is applicable in the present case. Another judgement relied upon by the Ld counsel for the petitioner titled as Bihari Lal Vs. UOI, AIR 1979 Delhi 84 , in my view same is LAC No. 104A/09 Page 30 of 34 also not applicable because in that case the petitioner had constructed a house on the agricultural land, therefore, the court was of the view that as per section 3 (12) of the DLR Act a dwelling house on the holding by the tenure holder is regarding as improvement, whereas in the present case petitioner has constructed Dharam Kanta, which is not connected for the purpose ancillary to the agricultural, further failed to prove that land is being used for agricultural purpose.
14. In view of the above discussions I held that petitioner has failed to prove that he is entitled for compensation for the structure. Therefor, his claim for structure is hereby declined.
15. Though petitioner has claimed Rs.10000/ per bigha loss and damages for depriving of farming of land but he has failed to lead any evidence in this regard. Hence, his claim in this regard is declined.
16. The petitioner has not led any evidence that he suffered loss of Rs.20,000/ on account of loss of trees, hence, this claim is also declined.
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17. The findings on Issue no.1 is summarized hereunder:
i) Petitioner has failed to prove his claim for enhanced compensation (a) on the basis of agricultural yield; and (b) on the basis that his land would have fetched higher price than fixed by LAC, being fit for residential/commercial purpose.
ii) Petitioner is entitle to enhanced compensation @ Rs. 16,99,042/ per acre for his entire land, thus getting an enhancement of Rs.1,29,042 per acre.
iii)Petitioner is entitle to 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 the date of award or dispossession, whichever is earlier.
iv) Petitioner is entitle to solatium u/s 23(2) of LA Act @ 30% on the enhanced amount of compensation.
v) Petitioner is entitle to 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 LAC No. 104A/09 Page 32 of 34 till the payment.
vi)Petitioner's claim for compensation of structure is hereby decline.
vii)Petitioner's claim for loss of crops and trees is decline.
18. Findings on Issue No.2 - RELIEF
19. In view of the findings on Issue no.1, the petitioner is entitled to the following reliefs:
a) enhancement in compensation @ Rs. 1,29,042/ per acre ;
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 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 the payment ;
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e) that Petitioner is not entitle for any compensation for the structure ;
f) that petitioner is not entitle for any compensation for loss of crops and trees.
19.2. Reference is disposed of accordingly.
19.3. Decree sheet be prepared accordingly. Copy of this order be sent to LAC for information.
File be consigned to record room.
Announced in the open court (SANJEEV KUMAR)
today on 06.09.2010 ADDITIONAL DISTRICT JUDGE01:
ROHINI COURT: DELHI
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