Delhi District Court
Shri Hari Kishan @ Suresh Parsad vs Union Of India on 27 May, 2013
IN THE COURT OF SH. ALOK AGARWAL, ADDITIONAL DISTRICT JUDGE:
DWARKA COURTS: NEW DELHI.
LAC. No. 67/10
Village : Masoodabad
Award No. : 02/2007-2008
UID No: 02405C0295452010
In the matter of:-
1. Shri Hari Kishan @ Suresh Parsad
S/o Shri Sultan Singh
R/o Village & P.O. Najafgarh,
New Delhi.
...Petitioner
Versus
1. Union of India
Through Land Acquisition Collector
South-West District, Kapashera,
New Delhi.
2. Delhi Jal Board
Through its Director/ Chief Executive Officer
Jhandelwalan Extension,
New Delhi.
3. DDA
Through its Vice Chairman
Vikas Sadan, I.N.A Market
Delhi.
...Respondents
LAC No: 67/10 1 D.O.O. 27.05.2013
Filed on : 21.10.2010
Reserved on : 22.05.2013
Decided on : 27.05.2013
J U D G M E N T :-
1. This is a reference under Section 18 of the Land Acquisition Act, 1894.
2. Vide a notification under Section 4 of LA Act dated 29.08.06 and declaration under Section 6 of LA Act dated 12.10.2006, 351 Bigha 18 Biswa and 05 Biswansi of land forming part of village Masoodabad was notified for acquisition for a public purpose namely, construction of 40 Million Gallon Daily Water Treatment Plant in Dwarka.
3. The Petitioner Hari Kishan Alias Suresh Prasad S/o Sultan Singh was bhumidar of a piece of the acquired land as mentioned in statement under Section 19 of LA Act which is extracted below:-
Item Name of petitioner Field No. Total Area Kind No. Bigha Biswa of Soil 14 Hari Kishan Alias 438 min 2-09 Suresh Prasad S/o 446 7-4 Sultan Singh 448/2 3-14 592/2 2-00 593/2 2-00 Kitta 5 17-07 As per the statement , date of possession was taken on 02.11.06.
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4. This statement was admitted as correct by the Counsel for the petitioner, to the extent of khasra numbers and area.
5. For determining the market value of the land with reference to the date of notification under Section 4 of L.A. Act, the collector relied upon the indicative price fixed by Govt. of NCT of Delhi for agricultural land in Delhi @ Rs. 17,58,400/- per acre as conveyed by the Dy. Secretary ( L.A) Land Building department vide letter No. F-9 (20)/80/L & B/LA/6720 dated 30.08.2005. Therefore, market value of the land under acquisition was determined @ Rs. 17,58,400/- per acre.
6. Aggrieved by market value of his land as determined by the collector, petitioner has filed the present reference petition for enhancement of compensation.
7. The petitioner claimed that the aforesaid land of village Masoodabad was urbanized vide notification dated 13.06.1963. The land ceased to be agricultural land and became urbanized land on the date of issuance of notification.
8. The petitioner claimed that the Collector has erred in not taking into consideration the potential value of the acquired land which is situated near the village Nangli Sekrawati which is an industrial area and the acquired land is eminently suited for industrial purposes and has valued the land on the basis of agricultural land.
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9. The petitioner further claimed that at the time of assessing the market value of acquired land, village Masoodabad formed part of the village Najafgarh which is the main commercial center of the entire rural areas.
10. The next contention of the petitioner is that LAC has assessed the market value of the land on the basis of Govt. notification which does not reflect the true market value of the acquired land due to its unique future as regards its locations, potentialities and existing advantages. It was claimed that all public utilities and facilities like electricity, transport, hospitals, schools & sports stadium were available in Najafgarh, prior to the issuance of notification under Section 4, LA Act.
11. The petitioner has further averred that there are building activities near the adjoining to the acquired land and a number of residential colonies have come up in existence near the acquired land.
12. The petitioner has contended that LAC has also not taken into consideration the factum of sale of commercial plots in open auction by DDA in the Dwarka Project which is just adjoining the acquired land and that LAC has not assessed the fair market value of the acquired land and that land in other part of Delhi acquired for Metro Project has been assessed as commercial and has been awarded compensation at the rate of more than Rs. 16,000/- per sq. yds.
13. It is further claimed by the petitioner that acquired land is levelled land and is not having any pits and therefore acquisition of the land have LAC No: 67/10 4 D.O.O. 27.05.2013 deprived the petitioner from the better fruits of the land as adjoining of the land almost fully developed and that in the open market, the value of the acquired land is more than @ Rs. 50,000/- per square meter.
14. It is further claimed by the petitioner that LAC has also not assessed the damages of the crops suffered by the petitioner and that LAC has also not assessed the compensation of the land of the petitioner as per provision of Land Acquisition Act and the interest has not been paid to the petitioner while the petitioner is legally entitled for 15% interest on the total amount from the date of taking over the possession till the passing of the award.
15. It is further contended by petitioner that award of LAC is erroneous as the same has not been passed within the stipulated period of time.
16. The petitioner claimed compensation at the rate of Rs. 50,000/- per square meter, solatium at the rate of 30% and the interest as per provisions of Land Acquisition Act, Rs. 1,00,000/- per acre of crops destroyed due to the possession having been taken over by the respondents and other benefits as per provisions of law.
17. On 14.02.2011 on the pointing out of Delhi Jal Board that DDA is also a requisitioning party, notice of the reference was issued to DDA.
18. Union of India, Delhi Jal Board and DDA have filed their written statements opposing any enhancement of compensation. They have claimed that the LAC has assessed the market value at just and reasonable rates.
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19. On pleadings of the parties, the following issues were settled:-
1. What was the market value of the land in question on the date of notification under Section 4 of the LA Act?
2. Whether petitioner is entitled to enhancement in compensation?
3. Relief.
20. In support of its claim, petitioner has examined 15 witnesses in all. Petitioner Hari Kishan @ Suresh Prashad has deposed as PW12.
Apart from filing his affidavit of evidence, he has proved a copy of notification stated to be issued by Ministry of Works & Housing on 20.08.1974 placing the lands vesting in the Govt. of India in some of the villages including Masoodabad at the disposal of the DDA for the purpose of development and maintenance. The copy of the notification was marked as A1. The notification has also been proved from record by PW14 Jagdish Chander, Kanungo from the office of Deputy Director, NL-I as Ex.PW14/1.
21. Shri Gajender Singh, Draughtman from office of Town Planning, MCD was examined as PW1. He has proved the notification issued on 23.05.1963 under Section 507 of the DMC Act declaring about 19 villages in Delhi including Massodabad as urbanized. The notification has been Marked as PW1/A. LAC No: 67/10 6 D.O.O. 27.05.2013
22. PW2 Shri Manish, Halka Patwari from Tehsil, Najafgarh, Delhi proved the akssizra of village Najafgarh and Masoodabad as Ex.PW2/A and Ex.PW2/B respectively.
23. The petitioner has proved the allotment of Gaon Sabha Land in village Hasanpur, Ghummanhera, Rawata, Chhawala and Pindwala Khurd of South West District for the construction of Sewage Pumping station to Delhi Jal Board in the year 2007. PW4 Yogender Kumar, Village Level Worker from office of BDO produced and proved the letter from Director ( Panchayat) to the Chief Executive Officer of Delhi Jal Board dated 27.02.2008 which mentions a premium of Rs. 17,00,417/- and the ground rent of Rs. 42,510/- for 1 Bigha of land. It is stated that in the letter premium has been calculated @ Rs. 81.62 lacs per acre and the ground rent @ 2.5 % of the premium. The said demand was also confirmed by PW7 Shri Ajay Gupta, Superintendent Engineer, office of Delhi Jal Board, further stated that the payment had already been released to Director of Panchayat but the possession of the land had not yet been taken.
24. Yet another allotment of Gaon Sabha lend in village Masoodabad itself and Najafgarh for construction of Mini Sewage Treatment Plant and Sewage Pumping Station for Najafgarh township has also been proved by the petitioner. PW8 is Sh. Surender Singh, Kanungo from office of Delhi Jal Board proved the allotment letter dated 18.11.93 as Ex.PW8/A which shows the rate of premium as 20 lacs per acre and ground rent @ 2.5% per annum of the premium. He has also proved the possession slips of LAC No: 67/10 7 D.O.O. 27.05.2013 taking over of the land. Further another allotment once again of Gaon Sabha land to Delhi Jal Board for construction of Mini Sewage Treatment Plant in Village Rewla Khanpur proved by PW11 Manoj, Village Level Worker, BDO Office, Najafgarh, New Delhi Ex.PW11/1 ( Collectively) shows that 6 Bigha and 10 Bishwas of Gaon Sabha land in vilalge awla Khanpur was released to Delhi Jal Board in the year 2008 for the above purpose on a premium calculated @ Rs. 81.62 lacs per acre and ground rent @ 2.5 % thereof.
25. Apart from the allotment of Gaon Sabha land, the petitioner has relied upon an award passed by LAC for acquisition of the land in village Mangolpur Khurd. The Award proved by PW5 Sh. Mukesh Chander, Planning Assistant from office of Director Planning, Dwarka as E.xPW5/A shows that the market value was calculated treating the land as residential @ Rs. 3710/- per sq. mt.
26. Shri Mukesh Chander, Planning Assistant from office of Director Planning, Dwarka who is mistakenly numbered as PW5 although he as the sixth witness proved the Zonal Development Plan of Najafgarh area as Ex.PW5/A.
27. PW6 is Yogesh Kumar, Draftsman from office of Town Planning Department, MCD who proved the plans submitted by Residential Welfare Association of unauthorized Colony namely Indira Park for regularization of the same. It is claimed that the said colony exits in village Masoodabad.
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28. The petitioner has examined Shri Ved Prakash, Naib Tehsildar from L & B Department, Govt. of NCT of Delhi as PW9. He has proved notifications issued from time to time by the Land and Building Department of Delhi Administration which is minimum price of agricultural land in the Union Territory of Delhi for the purpose of acquisition. The same has been proved as Ex.PW9/A collectively.
29. The petitioner has also heavily relied upon two sale deeds both executed on 12.04.05 in respect of two different pieces of land in village Masoodabad, one of which is for 6 Bigha and 17 Bishwas of land in village Masoodabad stated to sold for a consideration of Rs. 93,45,750/- and the second sale deed in respect of 13 bigha and 8 ½ Biswas is for the consideration of Rs. 1,82,78,000/-. Both pieces of land are stated to purchased by Radha Swami Satsang Beas. The Chief Zonal Secretary of Radha Swami Satsang Beas Shri G.P.S. Bhalla has been examined as PW10 who has proved both the sale deeds on record as Ex.PW10/1 and Ex.PW10/2 respectively.
30. On behalf of respondent UOI, it's counsel Shri J.R. Mathur, Advocate tendered the award as Ex. R1. He also tendered certified copy of some sale deeds of village Masoodabad itself executed on 23.08.2004, another one of 08.10.2004 and on 28.01.2005 as Ex. R2 to R5 respectively.
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31. Delhi Jal Board has also sought to prove that although the land was requisitioned for the purpose of construction of a water treatment plant by Delhi Jal Board, the same has infact been taken by Delhi Jal Board on lease from DDA. The letter of allotment on lease by DDA to Delhi Jal Board on the ground rent @ Rs. 1/- per acre has been proved as RW2/1. This is to show that the liability to pay the enhanced compensation is of DDA and not of the Delhi Jal Board.
32. Ld. Counsel for DDA has adopted the evidence adduced by Union of India.
33. I have heard Sh. B.D. Sharma, Advocate, appearing for petitioner, Sh. J.R. Mathur, advocate for UOI, Sh. Arvind Gupta for DDA and Sh. Tarun Kumar for Delhi Jal Board and have perused the entire records. I have also carefully considered the written arguments filed on behalf of both, the petitioner and UOI. My findings on the issues are as under:-
34. Issue No. 1 :- The golden rule for determination of the market value of the acquired land as laid down in Raja Vyricherla Narayana Gajapatiraju V. Revenue Divisional Officer, Vizagapatnam, AIR 1939 PC 98 by the Privy Counsel and followed till date is that the market value is the price for the land, a willing vendor might reasonably expect to obtain any willing purchaser. It is for the purpose of arriving at such price, that various methods adopted by the courts have been evolved. The best evidence would obviously be the sale exemplars of adjacent or nearby lands of comparable size where the transaction being bonafide is made LAC No: 67/10 10 D.O.O. 27.05.2013 soon before the date of issuance of notification under Section 4 of the LA Act. The above principles have been reiterated in various judgments by the Hon'ble Apex Court. Quoting from one of them, Radha Mudaliyar Vs. Tahsildar, ( 2010) 13 SCC 384 ' Comparable sales instances are the safest method for determining the market value of the acquired land and as laid down in Shaji Kuriakose Vs. Indian Oil Corpn. Ltd. [(2001) 7 SCC 650], it should satisfy the factors, inter alia, ( 1) the sale must be a genuine transaction; (2) the sale deed must have been executed at the time proximate to the date of issuance of notification under Section 4 of the Act; (3) the land covered by the sale must be in the vicinity of the acquired land; (4) the land covered by the sale must be similar to the acquired land; and ( 5) size of the plot of the land covered by the sale be comparable to the acquired land. The sales instances should preferably be closest to the date of notification as then alone it would satisfy the touchstone of the principles contemplated under Section 23 of the Act, as held in Kanwar Singh Vs. Union of India [(1998) LAC No: 67/10 11 D.O.O. 27.05.2013 8 SCC 136]'.
35. However, when such sale exemplars are not found, other methods are employed for arriving at for the market value while always keeping in mind the statutory mandate of factors to be considered as laid down in Section 23 of the LA Act and the factors to be excluded from consideration as given under Section 24. The provisions may be reproduced here as :
36. Section -23 - Matters to be considered in determining compensation-
(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration :-
First, the market value of the land at the date of the publication of the [notification under Section 4, sub -section (1)] Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof;
Thirdly, the damage ( if any) sustained by the person interested, at the time of the Collector's taking LAC No: 67/10 12 D.O.O. 27.05.2013 possession of the land, by reason of servering such land from his other land;
fourthly, the damage ( if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other prperty, movable or immovable, in any other manner, or his earnings; fifthly, if , in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses ( if any) incidental to such change; and sixthly, the damage ( if any) bonafide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land.
37. Section 24 - Matters to be neglected in determining compensation - But the Court shall not take into consideration-
First, the degree of urgency which has led to the acquisition;
secondly, any disinclination of the person interested to LAC No: 67/10 13 D.O.O. 27.05.2013 part with the land acquired;
thirdly, any damage sustained by him which, if caused by a private person, would not render such person liable to a suit;
fourthly, any damage which is likely to be caused to the land acquired, after th date of the publication of the declaration under Section 6, by or in consequence of the use to which it will be put;
fifthly, any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired;
sixthly, any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired, will be put, seventhly, any outlay or improvements on, or disposal of the land acquired, commenced, made or effected with the santion of the local authority after the date of the declaration of the area as a planning area under section 8 of the Pondicherry Town and Country Planning Act, 1969; eighthly, the special suitability or adaptability of the land for any purpose, if that purpose is a purpose to which it could be applied in pursuance of any law or for which there is no market apart from the special needs of the LAC No: 67/10 14 D.O.O. 27.05.2013 local authority;
ninethly, any increase in the value of the land by reason of the use thereof or any premises thereon in a manner which could be restrained by any Court, or is contrary to law or is deterimental to the health of the inmates of the premises or to the public health.
38. In the case on hand, the LAC has awarded the compensation on the basis of the indicative price fixed by the Govt. for agricultural land w.e.f. 30.08.05. It may be noted here that the price as per the own declaration of the Land and Building Department of Govt. of NCT of Delhi contained in letter dated 30.08.05, is the minimum price to be paid to the land owners for their agricultural land acquired by the Govt. anywhere in Delhi. It is specifically stated therein that the actual rates of compensation will be determined by the Land Acquisition Collector in accordance with the provision of the Land Acquisition Act and the prevalent case law.
39. The petitioner has sought enhanced compensation broadly on the following grounds:
1. Even more than one year before the notification under Section 4, land in the same village of Masoodabad was purchased by M/s Radha Swami Satsang for a huge amount which comes to about Rs. 65 lacs per acre as evidenced by sale deeds Ex.PW10/1 and Ex.PW10/2 .
LAC No: 67/10 15 D.O.O. 27.05.2013
2. Allotment of land by Gaon Sabha to the Delhi Jal Board in village Masoodabad itself as long back as in 1993 at the premium of Rs. 20 lacs per acre and ground rent @ of 2.5 % of the premium ( Ex.PW8/A).
3. Allotment of land by Gaon Sabha in nearby villages in the same district SW for the same purpose to Delhi Jal Board in the year 2008 at a premium of Rs. 81.62 lacs per acre and ground rent @ 2.5 % of the premium ( Ex.PW4/A).
4. Urbanization of village Masoodabad as long as back in 1963 vide notification issued under Section 507 of DMC Act ( Ex.PW1/A).
5. Earmarking of the village Masoodabad for residential purposes in the Zonal Development Plan for DDA prepared in 1974 ( Ex.PW5/A) and collector's award for land acquired in similarly placed village Mangolpur Khurd assessing the compensation at Rs. 3170 per Sq. Meter( Ex.PW5/A).
6. Vicinity of the village Masoodabad to highly developed area of Najafgarh and industrialized area of villae Nangli Sakrawati and the residential colony of Dwarka as per the Akssizra ( Ex.PW2/A and Ex.PW2/B).
7. The progressive quantum leap of the minimum price of agricultural land as fixed by Govt., in the relevant years as LAC No: 67/10 16 D.O.O. 27.05.2013 per Ex.PW9/A ( collectively).
40. Ld. Counsel for Union of India has on the other hand, argued that as per the evidence on record, inspite of urbanization of the village in 1963 the land used as mainly remained agricultural till the acquisition of the land. He has sought to refute the claim of enhanced compensation on the basis of sale deeds pertaining to Radha Swami Satsang on the ground that the prices indicated in the sale deed are exorbitant. He has pointed out that the vendee PW9 has admitted that he did not look for any other land in the village but purchased the land in question at whatsoever price it was available since this land was most suited for the purpose of his institution. He has further argued that same sale deeds have been discussed by the Hon'ble High Court of Delhi in a number of judgments and have been held to be not indicative of the market value of the land.
41. It is also contended on behalf of Union of India that the instances of allotment of land on lease to any Govt of Department cannot be taken as basis for determination of the market value of the land since this cannot be likened to the price agreeable by the willing purchaser to be paid to a willing seller.
42. Lastly and most importantly, Ld. Counsel for Union of India has contended that land in same village was earlier was acquired by Union of India twice in the very recent past i.e. vide award no. 5/2005-2006 and 11/2005-2006. The compensation in case of award no. 5/2005-2006 has LAC No: 67/10 17 D.O.O. 27.05.2013 already been decided by the Hon'ble High Court and in case of 11/2005-2006, the same has been decided by Ld. Reference Court. ld. Counsel has argued that it is these two awards which are to be taken as basis for awarding compensation in the present case, apart from the minimum indicative price, as relied upon by the Collector.
43. Let us now consider the evidence adduced by the petitioner in support of his claim for enhanced compensation and its effects.
44. Sale deeds of land purchased by M/s Radha Swami Satsang Beas:
The petitioner has relied upon two sale deeds both executed on 12.04.05 by different vendors in favour of M/s Radha Swami Satsang Beas vide Ex.PW10/1, one Chaman Lal Malhotra is shown to as sold 6 Bigha and 17 bishwas of land to the above said vendee for a consideration of Rs. 93,47,750/-. Ex.PW10/2 is the sale executed by by Smt. Nirmal Kumari selling 13 Bigha and 8 ½ Biswas of land for a consideration of Rs. 1, 82, 78,000/-. The average price of land as per the two sale deeds comes to about Rs. 60 lacs per acre. The sale deeds have been duly proved by producing the certified copies thereof and then getting the same also proved through PW10, Shri G.P.S. Bhalla who had purchased the land on behalf of M/s Radha Swami Satsang Beas.
45. However, the same sale deeds and other purchases of lands by M/s Radha Swami Satsang Beas in villages Masoodabad and Pochanpur have already been discussed by the Hon'ble High Court in various judgments including LA Appeal No. 111/10 ( village pochanpur) decided LAC No: 67/10 18 D.O.O. 27.05.2013 on 06.01.2012. It is indicated in the said judgment that the same sale deeds have also been the subject matter of discussion in LA Appeal No. 266/08 ( Jai Singh Vs. Union of India ) decided on 23.08.2011 and in LA Appeal No. 999/10, Raj Singh Vs. Union of India decided on 19.08.2011. In these cases, the Hon'ble High Court has held that these sale deeds cannot be taken as indicative of market value of land since they pertain to purchase of a large area of land by a religious institution for a specific purpose and show an unexplained spurt in the price of the land. The Hon'ble High Court has followed the judgment of the Hon'ble Supreme Court in Satpal & Ors. Vs. Union of India ( 1997) 11 SCC 423 wherein it has held that " if there is no explanation whatsoever for such a sharp increase in price of land in such a short time. The rise in price is more than 100 percent within a very short period which is not the usual prevailing trend in rise of prices in the area where the acquired land is situated. The more realistic sale deed, therefore be relied on those instances for assessing the market value of acquired land'
46. While considering the sale deeds relied upon by the petitioner on one hand, it is also necessary to examine the evidence led by the respondent in this regard in the form of four sale deeds, which are as follows:
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(a) 2 Bigha and 8 Biswas of land sold by Shri Parveen
Badera on 23.08.04 for rs. 7,85,000/- ( approximate rate comes to Rs. 15 lacs per acre) proved as Ex.R2.
(b) 1 Bigha and 4 Biswas of land sold by Shri M.L. Gambhir on 08.10.04 for Rs. 4 crores (approximate rate Rs. 16 lacs per acre) proved as Ex.R3.
(c) Another parcel of 1 Bigha and 4 Biswas of land sold by M.L. Gambhir on 01.10.04 for Rs. 4 lacs (approximate Rs. 16 lacs per acre) proved as Ex.R4..
(d) 500 Sq. yards of land sold by one Hamid Khoker on 20.01.05 for Rs. 1,15,000/- ( approximate Rs. 14 lacs per acre ) proved as R5.
47. As compared to the sale deeds relied upon by the respondents and even the price of agricultural land fixed by the Government, the sale deeds relied upon by the petitioner do show an exorbitant and manifold increase in the price. PW10 when cross examined on behalf of Union of India, did not deny that at the time of these purchases, land could be available in Masoodabad at cheaper rates also, but explained that he decided to purchase this land since the same was most suitable for the purpose of Radha Swami Satsang Beas. Thus the purchase of this land was for a specific purpose and the most suitable land for this purpose was LAC No: 67/10 20 D.O.O. 27.05.2013 purchased. Price of the same was not a constant. In view of this, the sale transaction relied upon by the petitioner cannot be indicative of the correct market value as prevailing at that time, nor the consideration thereof will qualify as the 'price, a willing purchaser would agree to pay a willing vendor'.
48. I am, therefore of the view that sale deeds Ex.PW10/1 and Ex.PW10/2 cannot be relied upon for the purpose of determine the market value of the land in village Masoodabad.
49. Instances of allotment of Gaon Sabha land on lease basis The petitioner has next relied upon two instances allotment of Gaon Sabha land to Delhi Jal Board for construction of Sewage Pumping Station in the year 2008 and to Delhi Water Supply and Sewage disposal undertaking for a similar purpose in the year 1993. In 1993 some land belonging to the Gaon Sabha of some villages was allotted charging a premium of Rs. 20 lacs per acre and ground rent of 2.5 % per annum of the premium. Then, land of Gaon Sabha of village Ghumanhera was allotted in 2008 to Delhi Jal Board on lease basis. The premium charged was Rs. 81.62 lacs per acre and the ground rent was 2.5% per annum on the premium. There were the rates fixed for allotment of any Gaon Sabha Land in Delhi to any Govt. body and had the approval of the Lt. Governor of Delhi, as expressly mentioned in one of the letters of approval Ex.PW4/A. LAC No: 67/10 21 D.O.O. 27.05.2013
50. The petitioner has also proved on record various letters from L & B Department to Secretary ( Revenue) , Govt. of NCT of Delhi fixing the minimum price of agricultural land to be paid to the land owners at the time of acquisition. These letters have been proved as Ex.PW9/A collectively. The said letters also mention that the prices so fixed had the approval of the Lt. Governor of Delhi.
51. The huge difference in rates of premium for leasing out lands to Got. Bodies and the total consideration payable to private land owners on acquisition, both fixed by the same authority, may look surprising at the first sight. However, the fact remains that the rates of allotment as fixed between two Govt. authorities cannot provide any guidance in the matter of determining the price as would be agreed upon between ' a willing vendor and a willing vendee' which, as is well established, is the determining factor for market value in case of acquisition of land.
52. Effect of urbanization:-
The petitioner has proved the notification issued under Section 507 of the DMC Act on 13.06.1963 declaring 19 of the villages in Delhi as Urban including the village Masoodabad. He has also proved the Zonal Development Plan prepared by DDA in 1974 vide which the site of village Masoodabad was earmarked for residential purposes. However the petitioner while deposing as PW12 has admitted in his cross examination that all his acquired land was being used for agricultural purpose only till its acquisition. He has further stated that he was himself cultivating the LAC No: 67/10 22 D.O.O. 27.05.2013 land before its acquisition. In his further cross examination, he has deposed that there is now an unauthorized residential colony, Power Sub Station and 5-6 schools in the area, but he has reiterated that before its acquisition the land was being used for agricultural purpose only.
53. It is now well settled that mere issuance of notification under Section 507 of the DMC Act does not by itself cause any spurt in the price of the land unless some development has actually taken place. In this case even after 43 years of urbanization, the land use had mainly remained agricultural as is evidenced by the deposition of the petitioner himself. The factors affecting the potentiality of the acquired land for the purpose of determination of its market value have been elaborated by the Hon'ble Supreme Court in T. Rama Reddy Vs. UOI reported as ( 1995) 2 SCC 305 and then in Udh Das Vs. State of Haryana & Ors reported as 2010 (9) SCALE 41. Both these judgments indicate that a particular land can be held to have higher potentiality based on actual physical evidence of development. The said inference cannot be arrived at wholly by conjectures or surmises.
54. While the location specific factors as put forth by the petitioner are proposed to be dealt with in the succeeding paragraphs, I do not find that issuance of notification under Section 507 of the DMC Act in this case has by itself had any effect on the potentiality and consequently, the market value of the land.
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55. Potentiality of the land- location specific factors Ld. Counsel for the petitioner has strongly contended that village Masoodabad lies in the vicinity of Najafgarh which is highly developed area and of village Nangli Sakrwati which is by now industrialized. It is stated that Najafgarh and Dwarka P)hase-II have been developed by the Delhi Development Authority. Various residential colonies had developed even on the land of village Masoodabad prior to the issuance of notification under Section 4 of LA Act. He has also argued that the land in question was infact a commercial site and was best suited for industrial/ commercial purpose. The adjoining village Najafgarh has already developed as the main commercial centre for the entire region and has all facilities of electricity, water, transport, hospital, sports stadium and market etc.
56. PW2 Halka Patwari of Tehsil Najafgarh, who has proved the aksizra of village Najafgarh and Masoodabad, also stated in his examination in chief that most of the agricultural land of village Masoodabad is built up. To a similar effect is the deposition of PW13 Halka Patwari of Tehsil Najafgarh who had again proved the aksizra of village Najafgarh. However PW2 in his cross examination has admitted that the acquired land of the petitioner touches the kakrola drain no. 8. He has also stated that no commercial activity or market infacat touches the acquired land and that there is no authorized colony on the said land.
LAC No: 67/10 24 D.O.O. 27.05.2013 Similarly, PW13 has admitted that in the Khasra Girdawaries, the land of Masoodabad has been shown as agricultural land. He did not comment upon the suggestion that there was no authorized construction on the acquired land. In any case, there is no clear indication that the construction referred to by these two witnesses had come up before the issuance of notification under Section 4 of the LA Act.
57. Moreover all the factors as highlighted by the petitioner have been dealt with by the Hon'ble High Court in Suresh Prashad @ Hari Kishan Vs. Union of India ( LA Appeal No. 42/2010), decided on 14.03.2012. This appeal was infact been preferred by the same petitioner against the order passed by the Ld. Reference Court in case of an earlier acquisition of another parcel of his own land as in the same village. After noting the same contentions of the petitioner, the Hon'ble High Court has held that the petitioner has failed to establish higher potentiality of the acquired land. In the said case, the Hon'ble High Court had upheld the award of the Ld. Reference Court assessing the market as Rs. 18,84,000/- per acre as on the date of notification under Section 4 of the LA Act which was 05.08.2003.
58. The Progressive increase method The last contention of Ld. Counsel for the petitioner is that the courts have been awarding increase usually @ 12 % per annum over the market value assessed for notification issued on prior dates. However, the minimum price of agricultural land fixed by the Govt. as proved on LAC No: 67/10 25 D.O.O. 27.05.2013 record by Ex.PW9/A collectively, itself shows that the the land prices have been increasing as a much higher rate. The minimum price fixed w.e.f. 30.08.2005 vide a letter dated 30.08.2005 at Rs. 17, 58, 400/- per acre while vide a notification dated 24.01.08, the minimum rate w.e.f. 18.12.2007 has been fixed at Rs. 53 lacs per acre. Both the notifications have been issued with the approval of the Hon'ble Lt. Governor. The Collector in the present case has relied upon the notification w.e.f. 30.08. 2005.
59. The notification under Section 4 in the case on hand had been issued on 29.08.2006. Ld. Counsel, has, therefore, contended that the market value even if computed on the basis of minimum prices fixed by teh Government itself, should be half way between 17,48,000/- ( as on 30.08.2005 ) and 53 lacs ( as on 18.12.2007).
60. From the above two notifications, which are duly proved on record, it is clear that the Govt. itself has increased the minimum rate payable to the land owners by three times in a period of 28 months. This could be either because of very large scale development taken place after 2005-2006 or, it may be that the rates fixed earlier by the Government did not reflect the realistic market value. Once again there is no evidence on record to arrive at a conclusion on either of these two propositions. Even if the spurt is due to large scale development , after 2005, it cannot be conjecturized as to how much of it was before and how much after the date of notification under Section 4 issued in this LAC No: 67/10 26 D.O.O. 27.05.2013 case. In these circumstances, in the absence of any concrete evidence or explanation on record, it is not possible to give concrete finding of increase in the market value, based on the minimum price fixed w.e.f. a future date.
61. Market value as fixed in other Awards/Judgments Various notifications under Section 4 of the Act issued in respect of lands in Masoodabad as well as other nearby villages have led to passing of several awards of acquisition in the past. The land of village Masoodabd itself has been acquired twice earlier in the recent past vide awards No. 5 and 11 of 2005-2006. Market values have been fixed by the courts in these two cases as on the dates on their respective modifications.
62. In Union of India Vs. Promod Gupta reported as 2005 (12) SCC,1, the Hon'ble Supreme Court of India has held that the evidence of judgments and award passed in respect of acquisition of similar land, subject to such increase or decrease as may be applicable having regard to the accepted principles laid down, would be most relevant for determining the market value in case other direct evidence is not available.
63. Some part of the land belonging to this petitioner himself was acquired vide award no. 5/2005-2006. After the enhancement awarded by the Ld. Reference Court in that case, the petitioner filed an appeal to the Hon'ble High Court. His appeal being LAA No. 42/2010 was disposed of on 14.03.2012, upholding the market value of Rs. 18.84 lacs per acre LAC No: 67/10 27 D.O.O. 27.05.2013 as fixed by the Ld. Reference Court. In the absence of adequate evidence with regard to appropriate sale exemplers and to the potentiality of the land, and following the judgment of the Hon'ble Supreme Court in Pramod Gupta (Supra), I am of the view that the market value fixed in the said appeal as on the date of notification in that case will form the most appropriate basis for determining the market value of the petitioner's own land as on the date of notification in this case.
64. As to the quantum of increase per annum, an increase of 12% per annum in compensation between the date of notification and the date of taking over of possession, is statutorily recognized under Section 23 (1) A of the land acquisition Act. This means that over and above the market value fixed by the court as on the date of notification under Section 4, the petitioner is statutorily entitled to an amount of 12 % per annum of the said market value till he is actually deprived of the possession and use of the land.
65. In the case of village Kakrola which falls in the same district, the Hon'ble High Court of Delhi granted an increase of 12% per annum in the market value vide a judgment in Ved Prakash Vs. Union of India ( LA Appeal No. 69/2007), decided on 23.10.2008. Similarly in case of other nearby villages i.e. Bharthal, Pochanpur and Bijwasan in a judgment Ranbir Sharma Vs. Union of India ( LA Appeal decided on 06.01.2012) the Hon'ble High Court has again approved the award of an increase of 12 % per annum in market value as awarded by Ld. Reference Court.
LAC No: 67/10 28 D.O.O. 27.05.2013 Infact the Hon'ble High Court awarded a further 10% increase in those cases on account of the proven vicinity of the said land to International Airport and other developments taking place in that area.
66. In view of the above, the petitioner has to be granted an increase of 12% per annum over and above market value as fixed by the Hon'ble High Court in LA Appeal No. 42/10.
67. In the said case, the market value was fixed as 18.84 lacs per acre in respect of the notification issued on 05.08.03. The notification under Section 4 in this case is dated 29.08.06. Accordingly granting an increment of 12 % per annum at Rs. 18.84 lacs, the market value as on 29.08.06 would come to Rs. 25.62 lacs per acre. Issue No. 1 is decided accordingly.
68. Issue No. 2In view of my decision on issue no. 1, the petitioner is entitled to the enhanced market value of Rs. 25.62 lacs per acre which means an increase of Rs. 8.04 lacs per acre or Rs. 1,67,500/- per bigha. He shall also be entitled to the other statutory benefits.
69. Relief: -
(i) Petitioner is entitled to receive compensation @ Rs. 25.62 lacs per acre i.e. an increase of Rs.
8.04 lacs per acre or Rs. 1,67,500/- per bigha in respect of land and share as detailed in para 3.
(ii)Petitioner is entitled to receive additional amount @ 12% per annum under Section 23 (1A) of the LAC No: 67/10 29 D.O.O. 27.05.2013 Land Acquisition Act, 1894 from the date of notification under Section 4 of the LA Act i.e. 29.08.2006 till petitioner was actually deprived of the possession and use of the land.
(iii) Petitioner is entitled to receive solatium @ 30% on the enhanced compensation under Section 23 (2) of LA Act.
(iv) Petitioner is entitled to receive interest @ 9% per annum for first year from date of possession and @ 15% per annum for subsequent period till compensation is paid to the petitioner or deposited in the court.
70. The reference is answered accordingly. Let a copy of the judgment be sent to the LAC(SW) for information and necessary action. Let the compensation be calculated by LAC and disbursed to petitioner after deducting compensation already paid. Decree be prepared in terms of judgment and file be consigned to record room.
Announced in the open Court
on 27th day of May, 2013 (ALOK AGARWAL)
ADDL. DISTRICT JUDGE
DWARKA COURTS: NEW DELHI
LAC No: 67/10 30 D.O.O. 27.05.2013
LAC No: 67/10 31 D.O.O. 27.05.2013
LAC No: 67/10 32 D.O.O. 27.05.2013