Delhi District Court
Sh. Ashok Kumar vs Union Of India on 25 January, 2007
1
IN THE COURT OF SHRI YASHWANT KUMAR :
ADDITIONAL DISTRICT JUDGE (LAC) : DELHI
LAC NO :104/1/06 AWARD NO : 03/1999-00
(Old LAC No.86/02) VILLAGE : Delhi Patti.
In the matter of :
Sh. Ashok Kumar
S/o Sh. Kashmiri Lala,
Q.P.65, Pitam Pura,
Delhi ...Petitioner
Versus
1 Union of India
through Land Acquisition
Collector/ADM, North Distt.,
Tis Hazari Courts, Delhi.
2 Delhi Metro Rail Corporation
Through its Chairman, NBCC Building,
Bhisham Pitamah Marg, Lodhi road,
CGO Complex, New Delhi.
...Respondents
AWARD REFERENCE U/S 18 OF THE LAND ACQUISITION ACT 1 Vide notification No.F7(35)95-L&B/LA/11/5506 dated 12.06.1997 U/s 4 of the LA Act (hereinafter referred to as the ACT) and declaration was also made vide notification No.F7(35)95/L&B/LA/8918 dated 28.07.1997 U/sec. 6 of the LA Act. The land including the land of the petitioner vide bearing property No.9063/23, Ground Floor situate at Ram Bagh, Delhi in the revenue estate of village Delhi Patti (Pul Bungash Area), Delhi was acquired by the Govt. for Mass Rapid Transit System. The Delhi Land Acquisition Collector (hereinafter referred to as LAC) after completing all the requisite formalities as provided under the Act passed the award bearing No.03/1999-2000 awarded the compensation @ Rs.1,247/- per sq. mtr. 2 Feeling dissatisfied with the quantum of compensation awarded by the LAC, the petitioner herein filed reference petition U/s 18 of the LA Act for proper 2 adjudication/market value which was sent to the reference court. 3 In the reference petition, the petitioner has sought the enhancement of compensation on the grounds that the petitioner is a person interested in property bearing No.9063/23, Ground Floor, in the commercial locality of Ram Bagh, Azad Market, Old Rohtak Road, Delhi having purchased the rights from Gujrawalan Gurkula Trust Society (Regd.) including the rights to transfer the property, subletting the same, make additions or alterations in the said property without payment of any consideration to any person and is doing the business of garment fabrication and is having showroom for sale. The petitioner is enjoying the rights of an owner and is entitled to receive full amount of compensation. The property acquired is a commercial property situate in a commercial locality and is being used prior to the date of notification U/sec. 4 of the LA Act by the petitioner for commercial purposes. The properties all around the property acquired are also commercial properties. All the amenities and facilitities were available to the land to run the above said business, light and power connections, telephone connectioins, regular transport, metalled roads, commercial markets etc. much prior to the date of notification U/sec. 4 of the Act. The land acquired is a commercial-cum-industrial land. None of the sale transactions relied upon by the LAC can be made basis for fixing market value of the acquuired property as they were not the genuine sale deeds between a willing seller and purchaser. The LAC has further erred in not relying on the minimum rates fixed by the Land & Development office of Union of India and Delhi Development Authority for the area acquired vide above award and the rate fixed for the surrounding areas. The same acquisition Collector in respect of the land acquired on the basis of notification U/sec. 4 of the same date and for the same purpose in civil lines residential area has fixed market value vide award No.2/1999-2000 @ Rs.6,300/- per meter for residential lands. The land of the petitioners is a fully developed, 3 commercial land in respect of which land & development office has fixed the market value of land @ Rs.12,600/- per sq. mtr. for transfer of leasehold rights. The market value of the freehold land is much more than a leasehold land where the land holder has not paid any premium or lease money. The market value of the land alone if sold in open market under the conditions of demand and supply was not less than Rs.20,000/- per sq. mtr. The petitioner claims the same. The LAC has not taken into consideration the reports prepared by the Government valuers and has not accepted the same without assigning any reason. The LAC has altogether ignored the claim of the petitioner for loss of earnings, shifting charges, damage to the machineries, raw material etc. The petitioner claims Rs.1,68,682/- for structures as per valuation report from Government approved valuer already submitted, Rs.3,00,000/- as loss of income; Rs.1,00,000/- as shifting charges and refixing charges and Rs.3,00,000/- as rehabilitation charges. On these grounds, the petitioner has filed this reference petition.
4 The UOI, in its written statement has raised the objections on the ground that the Delhi Land Reform Act is applicable to the land in dispute. The correctness of the khasra nos., their area and the extent of share of the petitioner therein admitted only to the extent as specified by the LAC in his statement furnished U/s 19 of the LA Act. In response to notice issued by the LAC U/sec 9 & 10 of the LA Act and petitioner has preferred claim. The land in question is not surrounded by any developed or un-developed colony and can only be used for agricultural. There was no structure, tree, well, or tube well on the land in question at the time of publication of notification U/sec. 4 of the LA Act. 5 DMRC, in its written statement, has raised the objections on the ground that the petitioner has lease hold right as mentioned in the award and LAC accordingly awarded the compensation correctly. The LAC has granted 4 compensation to tenants as per their rights in the properties as such the amount of compensation awarded by the LAC is adequate and just. All the averments made in the reference petition have been denied except those specifically admitted in this written statement by DMRC.
6 On the pleadings of the parties, the following issues were framed by this court on 22.03.2006 which are as under :
1 Whether the petitioner is the owner of the property in question? OPP 2 What was the market value of the land in question at the time of issuance of notice u/s 4 of the LA Act? OPP 3 Whether the petitioner is entitled to enhancement of compensation, if so, to what extent? OPP 4 Relief
7 The petitioner in support of his case for enhancement in compensation has examined himself as PW1 who has exhibited the documents Ex.PW1/1 to Ex.PW1/6. Ex.PW1/1 is the valuation report, Ex.PW1/2 is the original site plan & Ex.PW1/3 & Ex.PW1/4 are the power connection bills. Ex.PW1/5 & Ex.PW1/6 have not been filed on record, therefore, Ex.PW1/5 & Ex.PW1/6 have been de-exhibited vide order dt. 14.08.2006 of this court. Whereas, the counsel for the respondents have tendered in evidence the award no.3/1999-2000 of village Delhi Patti dt. 30.07.1999 as Ex.R-1. The copy of the sale deed no.2046 executed & registered on 13.03.1995 by Ms. Shamina Khatoon & Ors in favour of Ms.Amna Bi as Mark-A. Copy of sale deed no.7421 executed & registered on 14.01.1997 as Mark-B. (certified copies of the said sale deeds have already been filed in LAC No.76/1/06). 8 I have heard the Ld. Counsel for both the parties and have perused the entire records. My issue-wise findings are as under:-
5
ISSUE NO.1
9 The onus to prove this issue is upon the petitioner. The petitioner/ PW1 has deposed in his affidavit that he purchased the property in question from Gujranwala Gurukula Trust Society (Regd.) including the rights to transfer the property, subleting the same, making additions or alterations without payment of any consideration to any person and has been doing the business of garment fabrications and is having showroom for sale. The adjoining property bearing no.9063/23A, manufacturing unit was being run by the brother of PW1 with industrial licence issued by the Municipal Corporation of Delhi. PW1, during his cross-examination, has also deposed that he purchased the land in dispute from Gujranwala Gurukula Trust Society (Regd.) on the lease basis in the year 1995. PW1 has also produced and filed the settlement/ lease deed which has been exhibited as Ex.PW1/B. The rent of twenty years was adjusted as the lease amount. A perusal of the statement U/s 19 of the LA Act also reveals that there is no mention of the other interested persons disputing about the ownership of the property in question. Even otherwise, the respondents have also not led any evidence to prove on record that the petitioner is not the owner of the acquired land. Therefore, in the absence of any evidence in rebuttal, I hold that the petitioner is the owner of the acquired land bearing no.9063/23, Ram Bagh, Azad Market, Old Rohtak Road, Delhi. This issue is answered accordingly.
ISSUE NOS. 2 & 3 10 The issue nos. 2 & 3 are inter connected and I shall decided both the issues together. The onus to prove these issues is upon the petitioner. The petitioner has sought enhancement in compensation on the aforesaid grounds which are not repeated herein for the sake of brevity. Before considering & evaluating the market value of the acquired land on the date of notification i.e. 12.06.1997 U/sec. 4 of the 6 LA Act, I would prefer to rely upon the judgments of the Hon'ble Supreme Court of India as well as the Hon'ble High Court of Delhi. The basic test was laid down by the Hon'ble Supreme Court in Special Dy. Collector & Anr. Vs Kurra Sambasiva Rao & Others, AIR 1997 SC 2625 and it was held that :
''The court is required to keep at the back of its mind that the object of assessment is to arrive at reasonable and adequate market value of the lands. In that process, though some guess work is involved. Feats of imagination should be eschewed and mechanical assessment of the evidence should be avoided. Even in the absence of oral evidence adduced by the Land Acquisition Officer or the beneficiaries, the judges are to draw from their experience the normal human conduct of the parties and bona fide and genuine sale transactions are guiding star in evaluating the evidence. Misplaced sympathies or undue emphasis solely on the claimants right to compensation would place very heavy burden on the public exchequer to which other everyone contributes by direct or indirect taxes'' In P.Ram Reddy & Others Vs Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad & Ors (1995) 2 Supreme Court cases 305, the Hon'ble Supreme Court of India held that :
''Building potentiality has to be decided on the basis of material placed on record or made available and as such material must be supported by reliable documentary evidence. Therefore, if the acquired land has the building potentiality, its value, like the value of any other potentiality of the land should necessarily be taken into account for determining the market value of such land.'' In Spl. Tehsildar, Land Acqn. Vishakhapatnam Vs Smt. A. Mangala Gowri AIR 1992 Supreme Court 666, it was held by the Hon'ble Supreme Court of India that :7
''In determining the market value of the land, the price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land possessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notification would supply the date to assess the market value. Where there were bona fide and genuine sale transactions in respect of the same land under acquisition wherein the claimant who was vendee had sold at Rs.5 per sq. yard, the High Court would not be justified in excluding such transactions and placing reliance on award of some other land for awarding compensation at the rate of Rs.10 per sq. yard, within a time lag of nine months from the bona fide transaction by seller.''
11 The LAC, in the award no.3/1999-2000 Ex.R-1, has considered the claims of the 63 interested persons including the petitioner herein and decided their claims that ''in response to the notices issued U/s 9 & 10 of the LA Act, as many as 63 claims were received from the interested persons. The list of claims and evidence has been attached herewith containing full details. But in support of claims/ demands put forth by the claimants, no logical reasons have been submitted neither any documentary evidence have been enclosed in support of thier claims''. Further, the LAC in the said award Ex.R-1 while assessing the market value of the acquired land as on 12.06.1997 i.e. the date of notification U/s 4 of the LA Act has also considered several factors such as location of the land, claims filed by the interested persons, sale prices of similar lands sold in the neighbourhood over a period of five years before the date of notification u/s 4 of the LA Act. 12 The sale deeds of the land situate Pul Bangash, Azad Market, Malka Ganj, Jawahar Nagar & Subzi Mandi from the year 1993 to 1997 have been considered by the LAC in the award Ex.R-1. In the said sale deeds, the rate is varying from 324.00 per sq. yard to 2857.14 per sq. yard. The LAC, to remove the inconsistencies among these prices, calculated and taken into consideration the average sale price which 8 worked out to Rs.1303/- per sq. yard. The LAC further considered that this sale consideration includes the sale price of land and sale price of structures appurtenant thereto. In this area, the structures are quite old and are constructed in a haphazard manner. The quality of consitruction is poor, most of these are temporary sheds. Hence, the LAC considered appropriate ratio of the cost of land to the cost of construction at 80 : 20 i.e. 80% to the cost of land and 20% to the cost of structure. On this principle, according to the LAC, the average sale price of the land only works out to Rs.1043/- per sq. yard or Rs.1,247/- per sq. mtr. Besides the above method, another method of using the 'Schedule of Market Rates' issued by the Ministry of Urban Affairs & Employment, Govt. of India for land transfers in Delhi was also considered. As per the schedule, the prices for land transfer for the corresponding period i.e. 01.04.1996 till 31.03.1998 which comes to Rs.6300/- per sq. mtr for residential areas and Rs.12,600/- per sq. mtr. for commercial areas have been noted and before arriving at fair market value, the LAC observed the following factors including the land under acquisition :
A The nature of land use is mixed. Petty commercial establishments, non-conforming household industries, one go- down, small rooms on top of the shops used for residence, cover the area.
B The area is not located on the main road and can be approached through a narrow opening from the main road.
C The area is surrounded by squatter settlements on the front and railway line on the back.
13 The LAC observed that perusal of the above factors indicates that the potential for development in this area is very limited. Therefore, keeping the above in mind, the LAC considered that the rates indicted by the Ministry of Urban Affairs 9 & Employment are on a very higher side particularly for this area in comparison to the actual registered rates on transfer of similar lands. Thus, the LAC considered the market value arrived at by averaging the registered sale prices registered over five years of similar lands in the neighbourhood as the 'Fair Market Value' which was assessed at Rs.1,247/- per sq. mtr for the land and the same was finalized as the basis for compensation. In this context, I would also prefer to place a reliance upon the judgment dt. 03.03.2005 in WP (C ) 76-79/2004 titled Chet Ram Sharma & Ors Vs UOI & Ors, the land situate in village Bahapur, New Delhi was acquired vide the notification dt. 28.11.2002 U/s 4 (1) r/w/sec. 17 (1) (4) of the LA Act, the Hon'ble High Court of Delhi observed that :
''Not much material has been placed before us which could help the court to determine the fair market value of the land in question while the petitioners have placed whole emphasis on the fact that the land sought to be acquired by the respondents vide their notification U/s 4 dt. 28.11.2002 is part of a fully developed commercial area and has great potential and they are entitled to the present market value prevalent in the area at the relevant time. The petitioners rely upon the public auction conducted by the DDA in relation to plot No. 70, Nehru Place, wherein the land was auctioned at a price of Rs.1,91,666/- per sq. mtr. The Hon'ble High Court of Delhi further observed that it was concerned only with the fixation of a fair market price of the land, prima facie. While determining prospective use of the land or its future potential and development by itself, cannot be the only basis for the court to determine the market value of the acquired land. It is for the claimants to prove on record that the land or its surrounding areas have been fully developed at the time of notification. Granting of compensation is a mtter of serious consequence and thus cannot be based upon the element of conjuncture. Reference in this regard can be made to the judgment of the Supreme Court in the case of B.G. Kulkarani Vs Special Land Acqusition Officer JT 1996 (4) SC 220 as well as Trilochan Singh Vs State of Punjab 1995 LACC 283 SC. Normally, the auction by public authorities of fully developed plots cannot be stated to be a fair guiding factor for determining the fair market value of the land sought to be acquired by the Government at a subsequent stage. Of course, location, potential, utility would be the relevant factors which the 10 court upon due proof by the claimant, may take into consideration.
Auction of a developed plot by a public authority may not be a proper guide for determination of such compensation. It will be appropriate to refer to the judgment in the case of Santa (Died) & Ors Vs State of Haryana & Anr 2000 (2) PLR 501 while referring to various judgments of the Supreme Court as well as of that Court, it was held as under:-
''It is settled principle of law that the plot which are developed by the Government or its instrumentalities in the larger public interest after incurring huge expenditure cannot form basis for determining the compensation payable to the land being acquired by the Government for achieving that very public purpose. The cost indicated includes various other ingredients and does not indicate the excessive cost factor of the land price. It was for the claimants to bring appropriate evidence on record for bifurcation of such costing before they could derive any benefit from such documents.
This court has the occasion to discuss the relevancy of such public auctions or allotment of plots by the public bodies in different cases. In the case of State of Haryana and another V.Ram Chander and others, RFA No. 37 of 1996 decided on 13.05.1999 while considering somewhat similar question where auctions were held by HUDA of commercial areas, the Court observed as under:-
''Those instances are to my mind not relevant considerations for determining the fair market value of the acquired land at the time of notification. Varied reasons can be given for rejecting these instances. Firstly, these plots are developed plots on which the Government or HUDA has already spent considerable amount. Secondly, these are commercial sites and can never be equated to the value of huge agricultural land like the land acquired in the present case. Thirdly, these auction prices are not true index of a fair market value of the land at the relevant time because of the element of speculation and unfair competition in such auctions. Fourthly, the auctions have an element of uncertainty and they cannot be equated to a sale deed. It will depend on the terms and conditions of the auction because normally very meager amount in payable at the time of auction and balance is to be paid in instalments. Whether balance amount was paid or not, whether final documents of lease-deed or sale deed were executed in favour of the bidder? Ex. P31 and Ex. P32 are based on such terms only and lastly but not the least these are such small pieces of land that they cannot form a reasonable and fair basis for determination of compensation payable to the claimants. Once this evidence is held to be irrelevant, the compensation cannot be granted on the mere asking of the claimants which 11 they stated in their examination in chief and PW3, PW4 and PW9 respectively.
Again in the case of State of Haryana Vs Rajinder Kumar, RFA No. 2351 of 1998 decided on 03.06.1999 the court held as under:-
''Serious expenditure and efforts are put in by the State or authorities like PUDA before the developed, residential or commercial plots are put to public auction. Cost of land is one of the components of the minimum auction price fixed by the authorities. Auction price is not the price indicative only of the cost of land. It includes various other factors and components in its composition. It is a matter of public knowledge that it includes maintenance, construction and maintenance of roads in times to come, element of interest payable on different heads and other ancillary factors. An auction/bid is primarily is a speculative feature.
The Hon'ble High Court of Delhi in the aforesaid WP ( C) 76-79/2004 held that :
''Thus, we have no hesitation in coming to the conclusion that the auction held by the DDA in regard to plot No. 70 in the year 1995 cannot be the sale criteria for determining the compensation payable to the land owners, prima facie, and at this stage of the proceedings. We would not prefer to rely upon this document as the petitioner can hardly be permitted to take undue advantage of public obligations of the Government and its development policies.'' It was further held by the Hon'ble High Court of Delhi that :
''Admittedly the area has been developed by the DDA as a commercial area. However, under the lay out plan, the area was marked only for public utility services and thus it cannot get any commercial value.''
14 Sh.Ashok Kumar/ PW1 has deposed in his affidavit that he is doing the business of garment fabrications and is having showroom for sale in the property bearing no. 9063/23 in the commercial locality of Ram Bagh, Azad Market. The land use in mixed petty commercial non-confirming house-hold industries etc. The land use of the land is commercial and should have been assessed at commercial rates. In this context, whether the land in question may be treated 12 either residential or commercial, a reliance can be placed upon the judgment reported in the case of M.C.Mehta Vs UOI & Ors AIR 2006 SC 1325, it was held by the Hon'ble Supreme Court of India as under :
''For dealing with the question of power of MCD to seal the premises in case of misuser, it is necessary to examine few provisions of the DMC Act. The expression 'building' is defined in Section 2 (3) of the DMC Act as a house, out-house, stable, latrine, urinal, shed, hut, wall (other than a boundary wall) or any other structure, whether of masonry, bricks, wood, mud, metal or other material but does not include any portable shelter.
The expression 'land' as per section 2 (24) includes benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth and rights created by law over any street.
Section 2 (26) defines 'market' as under :
'Sec. 2 (26) - ''market'' includes any place where persons assemble for the sale of, or for the purpose of exposing for sale, meat, fish, fruits, vegetables, animals intended for human food or any other articles of human food whatsoever, with or without the consent of the owner of such place notwithstanding that there may be no common regulation for the concourse of buyers and sellers and whether or not any control is exercised over the business of, or the person frequenting, the market by the owner of the place or by any other person;'' Sec. 2 (34) defines 'Occupier' as under :
Sec.2 (34) ''Occupier'' includes -
(a) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable;
(b) an owner in occupation of, or otherwise using his land or building;13
(c ) a rent-free tenant of any land or building;
(d) a licensee in occupation of any land or building; and
(e) any person who is liable to pay to the owner damages for the use and occupation of any land or building;'' U/sec. 2 (59) 'trade premises' means :
''2 (59) - ''trade premises'' means any premises used or intended to be used for carrying on any trade or industry;'' ''Sec. 331 Definition -
(C ) to convert into a dwelling house any building or any part of a building not originally constructed for human habitation or, if originally so constructed, subsequently appropriated for any other purpose;
(h) to convert into a stall, shop, warehouse or godown, stable, factory or garage any building not originally constructed for use as such or which was not so used before the change;
(j) to convert into or use as a dwelling house any building which has been discontinued as or appropriated for any purpose other than, a dwelling house.'' Clause (c), (h) & (j) are very significant. These clauses bring in the concept of user of a building.
It was further held by the Hon'ble Supreme Court that :
''in respect of an area where the notified/ specified land use is residential, sanction for erection of a commercial building cannot be accorded, as is apparent from sub-section (2) of Section 336.
Section 347 contains a specific prohibition for change of the use of any land or building. The said section reads as under :
''Sec. 347 Restrictions on uses of buildings. - No person shall, without the written permission of the Commissioner, or otherwise 14 than in conformity with the conditions, if any, of such permission -
(a) use or permit to be used for human habitation any part of a building not originally erected or authorized to be used for that purpose or not used for that purpose before any alteration has been made therein by any work executed in accordance with the provisions of this Act and the bye-laws made thereunder:
(b) change or allow the change of the use of any land or building;
(c) convert or allow the conversion of one kind of tenement into another kind.'' A bare perusal of building bye-laws shows how relevant is the user, commercial or residential, and the large impact of occupation load on various facilities including water, sanitation and drainage.
Provision for household industries in residential areas does not mean converting residential houses in the commercial shops. It only means permitting activities of household industry in a part of a residential property. It does not mean that residential properties can be used for commercial and trading activities and sale and purchase of goods. Master Plan contemplates shops in District Centres, community Centres, Local Shopping Centres etc. and not in residential areas.
In respect of planning, reference can usefully be made to Section 313 of the DMC Act as well. The said section provides for the requirement of layout plan of the land. It, inter alia, provides that before utilizing, selling or otherwise dealing with any land U/sec. 312, the owner thereof shall send to the Commissioner a written application with a layout plan of the land showing various particulars including the purpose for which the building will be used. For breach of Section 313, action can be taken U/sec. 314. It has rightly not been disputed by any counsel that neither layout plan, nor the building plan, can be sanctioned by MCD except in the manner and for the purpose provided in the Master Plan. If in the master plan, the land use is residential, MCD cannot sanction the 15 plan for any purpose other than residential.
Building Bye-Laws for the Union Territory of Delhi, 1983, in particular Bye-Law Nos. 2.17, defining the expressions 'Conversion' and ''To Erect' which reads as under:
''2.17. Conversion - The change of an occupancy to another occupancy or change in building structure or part thereof resulting into change of space or use requiring additional occupancy certificates''.
The introduction of the ad hoc Registration Scheme would not only regularize the illegalities but further encourage more illegalities to take place by sending a wrong message underlying the press release. This ad hoc scheme has been stayed by this Court.
Mr. Ashwini Kumar, learned Senior Advocate appearing for MCD, also contended that since there is a large scale misuse of residential premises for commercial purposes, it is a physical impossibility to remove the misuser. The contention deserves outright rejection.''
15 Though, the petitioner has deposed in his evidence that he is doing the business of garment fabrications and is having showroom for sale in the acquired land and electric connection has been installed over the acquired land. PW1, in his cross examination, has deposed that the acquired property was used for commercial purpose for making plastic wastes. When the counsel for the respondents put a suggestion to PW1, PW1 deposed that there is no need to take for the work of plastic wastes. Again, the counsel for the respondents put a question to PW1 that ''have you got any document from the lessor showing that the land in question is being used for commercial purposes''. PW1 deposed that ''I do not have any document issued by the lessor that the land in question is being used for commercial purpose''.
1616 It is crystal clear that no evidence has been produced by the petitioner that the property in question was purchased as commercial in nature. Therefore, the petitioner has not been able to prove that the acquired land was the commercial land as per the master plan. The commercial and business activities on the acquired land does not change the use of the land from residential to commercial. In view of the above facts & circumstances and also the aforesaid judgments, I have no hesitation to hold that the case of the petitioner on the aspect of use of land is squarely covered in the aforesaid case of M.C.Mehta Vs UOI (Supra). Thus, the petitioner is not entitled to the commercial rate of the acquired land. 17 The petitioner, in support of his claim for enhancement in compensation, has deposed in his affidavit that the property was situate on a metalled road and all the amenities and facilitities for carrying on successfully business like regular transport, network of metalled roads, commercial markets, branches of various banks, etc. were available much prior to the date of notification u/s 4 of the LA Act. The Petitioner in his affidavit has further deposed that the property situate in the same revenue estate enjoying the same availability and facilitities was acquired vide award no.5/DC/N/2001-2002 as well as the other awards of the same north district i.e. civil lines etc. awarded the market value for residential use as fixed by the Govt. of India, Ministry of Urban Development, L&DO, Nirman Bhawan, New Delhi and the market rates as fixed by UOI from 01.04.1991 to 31.03.1998 for residential use was fixed @ Rs.6,300/- per sq. mtr. and for commercial use @ Rs.12,600/- per sq. mtr. as the minimum rates for the purpose of transfer of property charging un-increased lease money etc. PW1 in his cross-examination has deposed that there is main road of 60 ft. width in front of his property and there are no hawkers in front of his property. When the counsel for the respondents put a question to PW1, PW1 deposed that ''I have not filed any document in support of my claim that the market value of the land should be at least Rs.12,600/- per sq. 17 mtr. However, it has been filed in other cases as well as in the case of his brother title Yashpal Arora Vs UOI''.
18 In the similar references, the claimants have relied upon the copy of the award no.5/DC/N/ 2001-2002 and the copy of the award No.12/2001-2002. In the aforesaid awards no.5/DC/N/2001-2002, the notification u/s 4 of the LA Act pertaining to the land situate at Pul Bangash- Roshanara Road Area forming part of village Delhi Patti was issued on 08.08.2000 wherein, the LAC assessed the market value @ Rs.6,930/- per sq. mtr as on 08.08.2000 and in the award no.12/2001-2002, the notification u/s 4 of the LA Act pertaining to the village/ area situate at Mehta Building, Old Rohtak Road, Ram Bagh, Delhi was issued on 15.10.2001 wherein the LAC assessed the market value @ Rs.6,930/- per sq. mtr. The LAC, while assessing the fair market value of the acquired land in the award Nos.5/DC/N/2001-2002 and 12/2001-2002, considered the indicative market value of the land for residential purposes as per the schedule of market rates notified by the Govt. The LAC assessing the fair market value of the acquired land situate at Ram Bagh area Delhi Patti in the present reference also considered the method of using the 'Schedule of Market Rates' issued by the Ministry of Urban Affairs & Employment, Govt. of India, for land transfers in Delhi and as per the schedule, the prices for land transfer for the corresponding period i.e 01.04.1996 till 31.03.1998 comes to Rs.6,300/- per sq. mtr. for residential areas and Rs.12,600/- per sq. mtr for commercial areas but the LAC considered the indicative price as per the schedule of market rate on a very higher side without giving any cogent reasons in his award and assessed the market value at Rs.1,247/- per sq. mtr on the basis of sale prices. 19 On the one hand, the LAC in the award Ex.R-1 herein is relying upon the sale deeds for fixing the market value without giving any justified or cogent reasons for not considering the indicative rates i.e. schedule of market rates of the Govt. On 18 the other hand, the LACs in the aforesaid award Nos.5/DC/N/2001-2002 and 12/2001-2002 have relied upon the schedule of market rates of the Govt. while fixing the market value of the acquired land as on 08.08.2000 & 15.10.2001 of the same area which are situated at Pul Bangash - Roshanara Road area forming part of village Delhi Patti and Rohtak Road, Ram Bagh, Delhi. The land in question is also situate at Ram Bagh forming part of Delhi village/ Delhi Patti. The counsel for the respondents have also relied upon the photocopy of the sale deed executed & registered on 13.03.1995 by Ms. Shamina Khatoon & Ors in favour of Ms.Amna Bi as Mark-A and copy of sale deed no.7421 executed & registered on 14.01.1997 as Mark-B, certified copies of which have already been filed in LAC NO.76/1/06. Mark-A and Mark-B are the sale deeds executed in the year pertaining to the land situate at village Pul Bangash & Roshanara Road which were executed on 13.03.1995 and 14.01.1997 respectively. Here, I would like to point out that the sale prices of the land or the properties for fixing the fair market value of the acquired land on the date of notification u/s 4 of the LA Act have to be considered if the market rates of the area wherein the acquired land situate have not been fixed by the Govt. but in the present reference, the Govt. has already fixed the market rates of the area where the land in question situate for residential/ commercial purposes on the date of notification u/s 4 of the LA Act i.e. Rs.6,300/- per sq. mtr. for residential purposes. Therefore, the aforesaid sale deeds relied upon by the counsel for the respondents are not applicable and cannot be considered as the basis for fixing the fair market value of the land in question on the date of notification u/s 4 of the LA Act. Further, the area under acquisition has been found to be in a fast developing part of a municipal town, development activity was in progress. Therefore, deduction towards development costs to the market value of the acquired land would not be justified. In this context, I would place reliance upon the judgment dt. 26.09.1996 passed by the Hon'ble High Court of Delhi in RFA No. 554 of 1992 in the case of Dharamvir & Ors Vs UOI, it was held that 19 acquired land was surrounded by developed area which had already roads and railway line, therefore, there was no justification for deduction towards development, cost to the extent of 30% or to the extent of 25%. In the case of Anil Kumar Sharma Vs UOI 86 (2000) DLT 825 (DB), it was held by the Hon'ble High Court of Delhi that acquired land was already developed and possessed of amenities. No reason to hold that fair market value of the land in vicinity as on the date of notification for similar plots would less than Rs.800/- per sq. mtr or less than Rs.345/- sq. yard. No scope for further deductions. Thus, I have no hesitation to hold that the market value of the land in question situate at Ram Bagh area forming part of Delhi village/ Delhi Patti acquired vide the notification dt. 12.06.1997 u/s 4 of the LA Act was at Rs.6,300/- per sq. mtr.
20 The petitioner has also claimed Rs.1,68,682/- for structures as per valuation report from Government approved valuer already submitted, Rs.3,00,000/- as loss of income; Rs.1,00,000/- as shifting charges and refixing charges and Rs.3,00,000/- as rehabilitation charges. The petitioner/ PW1 has exhibited the valuation report for cost of construction as Ex.PW1/1, site plan of the property as PW1/2, Electricity bill as Ex.PW1/3, telephone bill as Ex.PW1/4 and income tax return filed at the relevant period as Ex.PW1/C. The petitioner has not produced any witness i.e. the valuer, Govt. official/ officer, etc. to prove the Ex.PW1/1 to Ex.PW1/4 & Ex.PW1/C that the petitioner has suffered with the loss for structure, income, shifting charges, refixing charges and rehabilitation charges as claimed in the reference petition whereas, the LAC has already considered all the aforesaid facts while fixing the market value of the acquired land. Thus, I hold that the petitioner has also failed to prove the loss to structure, income, shifting charges etc. as aforesaid and is not entitled for the same. These issues are answered accordingly. RELIEF 20 21 In view of my findings on the above issues, the market value of the land of the petitioner situate at Ram Bagh area forming part of Delhi Village/Delhi Patti acquired vide the notification dt. 12.06.1997 U/sec. 4 of the LA Act is fixed @ Rs.6,300/- per sq. mtr. as per the details mentioned in the statement u/sec.19 of the LA Act. Besides it, the petitioner shall also be entitled to get additional amount u/sec. 23 (1A) of LA Act @ 12% per annum on the market value from the date of notification u/sec. 4 of the LA Act till the date of award or dispossession, whichever is earlier. The petitioner shall also get solatium u/sec. 23 (2) of LA Act @ 30% on the enhanced amount of compensation and interest u/sec. 28 of LA Act @ 9% per annum for the first year from the date of dispossession and @ 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. The petitioner is further entitled to interest on solatium and additional amount in terms of judgment of Hon'ble Apex court titled Sunder Vs UOI reported in DLT 2001 (SC)
569. This reference is answered accordingly.
A copy of this award be sent to the concerned LAC to make the payment of the enhanced amount of compensation to the petitioner within three months from today. While making the calculations due regard shall be made to deduct the amount initially arrived at by the LAC to avoid any duplication. There shall be no order as to costs. Decree sheet be prepared accordingly. The file be consigned to Record Room.
Announced in open court ( YASHWANT KUMAR )
on 25.01.2007 ADDL. DISTRICT JUDGE
(LAC)
DELHI
21
LAC No. 104/1/06
25.01.2007
Present- None
Vide separate award dictated and announced in the open court, this reference is answered accordingly.
A copy of this award be sent to the concerned LAC to make the payment of the enhanced amount of compensation to the petitioner within three months from today. While making the calculations due regard shall be made to deduct the amount initially arrived at by the LAC to avoid any duplication. There shall be no order as to costs. Decree sheet be prepared accordingly. The file be consigned to Record Room.
( YASHWANT KUMAR ) ADJ/LAC/DELHI/25.01.2007