Delhi District Court
Sh. Anand Prakash Gupta vs Union Of India on 27 August, 2015
In The Court of Virender Kumar Goyal
Additional District Judge01 (East)
Karkardooma Courts, Delhi
LAC (New) No.17/1/08/07 (Old) No.211/1/07
Unique Case ID No.02402C0 74142 2006
In the matter of :
Sh. Anand Prakash Gupta
S/o Late Sh. Asa Ram Gupta
R/o III/466, Bara Thakur Dwara
Shahdara, Delhi110032 .....Petitioner
Versus
1. Union of India
Through Land Acquisition Collector
East District, L.M. Bandh, Near Geeta
Colony, Delhi110051.
2. Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi110006. .....Respondents
Date of institution : 26.11.2007
Arguments heard on : 17.07.2015
Judgment announced on : 27.08.2015
JUDGMENT
1. Brief facts of the case, relevant for the disposal of the present reference, are that the petitioner has filed the reference U/s 18 of the Land Acquisition Act, 1894 against Award No. 01/200708/East dated 03.05.2007, passed by the Land Acquisition Collector, East, Delhi, on the averments that land LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.1 of 29 comprised khasra No.10/16 (4 bigha 5 biswa) was / is the ancestral land of petitioner, wherein admittedly, he was having 1/8th undivided share till the day of publishing of impugned award. The said land has been acquired by the Government vide above said award. The petitioner is aggrieved not only by acquisition but also by quantum of compensation awarded by LAC. The LAC has awarded compensation for land @ Rs. 3647/ per sq. meter. No other person is having right, title and interest in the land or its any part except petitioner. Petitioner is wholly entitled qua compensation of 1/8th undivided share.
2. The deceased father of the petitioner and other persons, being owners of land admeasuring 4 bigha 5 biswa comprised in kila No.16 of rectangle No.10 (khasra no.16/10) situated in the revenue estate of Village Khureji Khas, Ilaqa & Tehsil Shahdara, Delhi110032, had filed a suit for ejectment against Union of India / Municipal Corporation of Delhi before Revenue Assistant, Delhi, who had illegally encroached upon the said land. Revenue Assistant vide its judgment and decree dated 03.09.1973 had decreed the suit for possession. An appeal was filed by Union of India against said judgment and decree, which was dismissed by Sh. H K S Malik, the then Ld. ADJ, Delhi on 16.04.1975. Second appeal bearing RSA No.50/1976 was also filed by Union of India, which was dismissed by LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.2 of 29 Hon'ble High Court of Delhi on 21.04.1995. MCD filed writ petition (Civil) No.1935/1998 before Hon'ble High Court of Delhi, against judgment and decree dated 03.09.1973, which was dismissed by Division Bench of Hon. High Court on 14.05.1998. The decree dated 03.09.1973 became final and binding, which was put for execution on or about 18.12.1995 and same remained pending, as despite repeated requests, Executing Court had not issued warrants of possession to put the Decree Holders into actual physical possession of 4 bigha 5 biswa land. The matter was kept in abeyance. The petitioner alongwith his cosharers had approached the Hon'ble High Court under Article 227 of Constitution of India, as warrants of possession were not issued and directions were issued for Executing Court to issue warrants of possession in respect of land in reference and to proceed with the execution petition forthwith so as to execute the decree in accordance with law. Despite directions, nothing was done by executing court. Accordingly, contempt proceedings were initiated, out of which, one contempt petition is still subjudice. In interregnum, Municipal Corporation of Delhi approached the Hon'ble High Court of Delhi and filed civil revision petition No.245/2001 thereby praying that execution proceedings be stayed, which was dismissed on 05.12.2001 and an SLP was preferred against LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.3 of 29 said judgment, which was also dismissed by Hon. Apex Court on 25.01.2002. Even then, warrants of possession were not issued by Executing Court. In 2004, by Award No. 15/DC(E)/200405 dated 06.09.2004, LAC had acquired 2 bigha 6 biswa land, out of 4 bigha 5 biswa. Another contempt petition bearing contempt case (civil) No.5963/2006 is subjudiced before Hon'ble High Court of Delhi. In view of said proceedings, LAC proceeded very hurriedly in publishing the impugned award dated 03.05.2007 regarding acquiring of 1 bigha 12 biswa land i.e. 1345 sq. meters. The award has not been counter signed by the Secretary (Revenue) of Government of National Capital Territory of Delhi. The acquired land was notified u/s 4 of Land Acquisition Act, 1894 in terms of notification No.F.8(13)/2006/L&B/8232 dated 24.08.2006. The requisite notification U/s 6 of Act was issued vide No.F. 8(13)2006/L&B/LA/11987 dated 01.11.2006. In order to take possession of said land, Government issued another notification U/s 17(1) of said Act vide notification No.F. 8(13)/2006/L&B/LA/11988 dated 01.11.2006. Prescribed notices U/s 9(1) and 10(1) of said Act were issued on 15.11.2006 and the actual physical possession of acquired land (1 bigha 12 biswa) was taken over by Land & Building Department on 24.01.2007 in terms of notification dated LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.4 of 29 01.11.2006. On the same day, MCD was put in actual physical possession of the same. The entire area of village Khureji Khas, Tehsil Shahdar was urbanized way back on 23.05.1963 vide Notification No.RNZ/526. This supplemented the earlier notification No.F9/5/59R&S dated 28.12.1959 which was followed by another notification No.GSR 486 dated 12.04.1962 under Act 59 of 1958. The provisions of Delhi Rent Control Act, 1958 were extended to entire locality vide notification No.S.O.1236 dated 23.3.1979. The land admeasuring 2 bighas 6 biswa was acquired in terms of Award No.15/DC(E)/20042005 dated 06.09.2004. The remaining land admeasuring 1 bigha 12 biswas was / is available for acquisition and has been acquired by impugned award dated 03.05.2007. The petitioner had preferred his claim before LAC, but, was not considered. The petitioner is advised to initiate this reference, more so, he is seriously aggrieved with the findings of LAC, which are based on sheer ipsi dixit. The award under reference is not sustainable in the eyes of law.
3. The award under reference is challenged on various grounds inter alia that it is not sustainable on admitted facts. LAC failed to appreciate entire revenue estate of Village Khureji Khas which was urbanized in terms of notification dated 23.05.1963 i.e. more than 40 years ago. The entire area had developed into LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.5 of 29 a highly congested urban city. The land prices in the locality are astronomical, whereas, compensation has been awarded at the rate of Rs.3647/ per sq. meter. LAC ought to have held that prevailing land prices in the locality was of Rs.25000/ per sq. meter and not a penny less in the year 200607. LAC failed to appreciate that there had been phenomenal rise in the land prices during last few years in Delhi and particularly in last two years. LAC failed to appreciate that after urbanization of entire locality in the vicinity of land, the value of land under reference was not less than Rs.25000/ per sq. meter at the time of issuance of notification U/s 4 of Act. LAC failed to appreciate that site under acquisition was fully developed and there was already provision of pucca roads / parks and street lights etc. All civic amenities were already available at the site, hence, land rates adopted by LAC were apparently much below prevailing rates/prices. Mother dairy, milk both etc. already existing at the site. Mother dairy was paying fanciful rent to MCD for use of small part of site. LAC failed to appreciate surroundings of site. The site was adjacent to Community Centre of MCD in the heart of Chander Nagar, Shahdara South, Delhi110051, which fetched rent/license fee of Rs.10000/ per day to MCD. Despite this, LAC deliberately ignored the potential of land for determining the market value, by brushing aside the following LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.6 of 29 land marks near site, as under :
a) Sh. Anandpur Trust Charitable Diagnostic Centre Delhi, C9/4, Krishna Nagar, Delhi110051 (barely 300 meters away)
b) Spring Bells Public School (Recognised) (barely 200 meters away) affiliated to the CBSE, Delhi.
c) Vijaya Bank, Khureji Khas, Delhi110051 (just 200 meters away).
d) Gynopeds Clinic (a mother and child care institution) (run by qualified MBBS MD Medical practitioners) (100 meters away).
e) a mosque (150 meters away).
4. The land was to be valued as per residential rates provided by Land & Development Officer, Ministry of Urban Development, Government of India, New Delhi, but, LAC has not appreciated the rates, as notified. The alleged land rates were farcical, which cannot be said to be reasonable for determining market value of land in question. LAC has not awarded interest to the claimant / petitioner on 80% compensation, which has been awarded in the impugned award. LAC never served any notice to the claimant / petitioner for completing alleged formalities for payment of 80% compensation and refused the same on flimsy grounds. LAC has not released 80% compensation despite being aware about the proceedings under Contempt of Court Act, 1971 against officials of office of Deputy Commissioner of East Delhi already subjudiced before Hon'ble High Court of Delhi. This was/is sheer victimization of petitioner. LAC ought to have awarded compensation to the LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.7 of 29 petitioner @ Rs.25000/ per sq. meter instead of Rs.3647/ per sq. meter. LAC has not made any effort to determine the actual / prevailing market value of land. Award is not based on sound reasonings. The method adopted by LAC for determining the value of land is apparently unjustifiable. LAC has ignored sections 23&24 of LA Act 1894 while determining the compensation and pronouncing the impugned award. Award passed by LAC is not only erroneous but is also unfair and unreasonable. It has been published with a predetermined mind in undue haste and even it is not countersigned by Secretary (Revenue). The land was acquired for public purposes but was put to disposal of MCD, so, it is effective and necessary party for adjudication the reference and prayed that he be awarded compensation @ Rs.25000/ per sq. meter besides solatium and interest alongwith all other benefits prescribed under the law.
5. Notices of the petition were issued to the respondents and on completion of service, both the respondents had filed separate written statements.
6. It is averred by respondent No.1 / Union of India in the written statement that Land Reform Act is applicable to the land in dispute. The land was acquired at the instance of MCD which has to make the payment. MCD is a necessary and proper party for adjudication of the proceedings and it be impleaded as party LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.8 of 29 in the case. LAC while making award under reference had taken into consideration the market value of the land on the basis of sale deeds of adjoining lands of the area, as well as, other documents which were made available and produced before LAC. Moreover, the area of land and other amenities were taken into consideration by LAC, so, the reference for enhancement of amount of compensation is not maintainable. The amount awarded by LAC in respect of land in question is adequate, sufficient, just and legal, which is based on cogent and reliable evidence, hence, there is no scope of enhancement. Without prejudice to the said preliminary objections, the petitioner is not admitted to be owner/Bhumidar/interest person in respect of land in question, as such, the petitioner has no locus standi to file present reference. The correctness of khasra numbers, their area and share of petitioner are admitted only, as specified by LAC in his statement furnished U/s 19 of LA Act. In response to notice issued by LAC u/s 9&10 of LA Act, the petitioner has preferred the claim. The land in question is not surrounded by any developed or under developed colony and can only be used for agricultural purpose. There was no standing trees, boundary wall or main wall on the land in question at the time of publication of notification U/s 4 of LA Act. In reply on merits, it is averred that the compensation has LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.9 of 29 been legally and correctly assessed by the LAC and same is adequate and just. The petitioner is not entitled for any enhancement of compensation. The petitioner is also not entitled for loss of earnings and severance charges and after denying other averments, it has prayed for dismissal of the petition.
7. It is averred by the respondent no.2 / MCD in the reply that application U/s 18 of LA Act is not maintainable. There is no legal infirmity, perversity or illegality in the award under reference. Respondent no.1 / Union of India vested with the power under the provisions of LA Act to determine the compensation. Therefore, the amount of compensation determined by the LAC @ Rs.3647/ per sq. meter after considering the matter in its entirety, is legally perfect and is in accordance with law. The judicial pronouncement vests on distinguishable facts, as such, same are applicable to the facts and circumstances of the case. Hence, no order / directions are to be passed against MCD. In reply on merits, it is averred that applicant is not entitled for enhancement of compensation, once amount determined by LAC, is accepted. Hence, award passed is in consonance with the provisions of LA Act. The applicant is not entitled for compensation @ Rs.25000/ per sq. meter, as alleged and after denying other averments, it has sought LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.10 of 29 dismissal of application.
8. From the pleadings of the parties, following issues were framed vide order dated 14.03.2008 :
(a) Whether the petitioner has any right, title or interest in the land in question ? OPP
(b) What was the market value of the land in question at the time of issuance of notification U/s 4 of the LA Act ? Onus on parties.
(c) Whether the petitioner is entitled to enhancement in compensation, if so, to what amount ? OPP
(d) Relief.
9. In order to prove his case, the petitioner has examined himself as PW1, vide his affidavit Ex.PW1/A. He has reiterated the contents of petition, in his affidavit. He has relied upon the documents from Ex.PW1 to Ex.PW1/52. He was cross examined at length by the ld. counsel for respondent no.1 / Union of India. His cross examination, as done by ld. counsel for respondent no.1, was adopted by ld. counsel for respondent no.2 / MCD.
10. Petitioner has also examined PW2 Sh. Narottam Sharma, Assistant, Commercial Land Branch, DDA, Vikas Sadan, Near INA, New Delhi, who has proved perpetual lease deed dated 01.09.2005 Ex.PW1/8. He has been jointly cross examined by the ld. counsels for the respondents. No other witness is examined by the petitioner.
11. The counsel for respondent no.1 has tendered award No. LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.11 of 29 1/200708 passed by the LAC, East Ex.R1 and photocopy of sale deed executed on 17.02.2003 for a sum of Rs.1 lac registered vide registration No.1031 mark A. Ld. counsel for respondent no.2 has adopted the same. No other witness is examined by the respondents.
12. I have heard the ld. counsels for the parties and perused the record.
Findings on issue no.1 Whether the petitioner has any right, title or interest in the land in question ? OPP
13. According to the petition, father of the petitioner was owner of the land measuring 4 bighas 5 biswas comprising in kila No. 16 of rectangle No.10 (khasra no.16/10) situated in the Village Khureji Khas. It is further averred that land was illegally encroached by the MCD and thereafter all the litigations, order of Revenue Assistant was found to be correct. Hence, thereafter the land was acquired for MCD by the LAC. It is contended that if the land was already belonging to the government then there was no need to acquire the same. Whereas, on the other hand, in the WS filed on behalf of Union of India, it is averred that petitioner is not admitted to be the owner/Bhumidar/interested person with respect to the land in question and has no locus standi to file the present reference LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.12 of 29 petition. MCD has not denied the ownership of land in question of the petitioners.
14. According to the judgment of Revenue Assistant, Delhi, which has been upheld throughout during various litigations. Issue no.1 was framed as to whether the petitioner is owner of the land and according to the same, in support of the issue, the petitioner has filed copy of Jamabandi for 196869, in which the petitioner is recorded owner of suit land i.e. Khasra No.10/16. It was further upheld that no evidence in rebuttal on this issue was brought by the defendants i.e. MCD & UOI, so, it was held that plaintiffs are owners of suit land and issue was decided in favour of plaintiffs. The plaintiffs in the said judgment are Sh. Asha Ram Gupta, Bhupender Kumar, Mahender Kumar and Aflatoon, out of which, the present petitioners Sh. Anand Prakash Gupta is son of Asha Ram Gupta, Bhupender Kumar is the same petitioner, Mahender Kumar is also same petitioner, one petitioner Chander Prakash is also LR of Asha Ram Gupta and one Farzand Ali is LR of Aflatoon, so, the present petitioners are LRs and themselves, who were plaintiffs before the court of Revenue Assistant.
15. Now, before this court also, respondents have not been able to brought on record any evidence in support of the issue to the extent that petitioner is not owner of land in question. LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.13 of 29
16. On behalf of respondent / Union of India, only award has been tendered in evidence and on behalf of MCD, the evidence led by the Union of India has been adopted.
17. In the cross examination, PW1 has stated that he has not filed any revenue record i.e. khasra girdawari and khatoni to show the ownership of land in question in this reference. He has also stated that in the cross that he has not filed sale deed of land in question to show his ownership nor has filed any Jamabandi from the year 196869 to 2002. This cross examination is of no relevance, as this issue of ownership has already been decided by the court of Revenue Assistant before whom the documents were produced and the said judgment was announced on 03.09.1973 in which MCD and Union of India were party and said judgment has been upheld throughout in all further litigations between the parties, so, this cross examination has no meaning regarding challenging the ownership of suit land of the petitioners.
18. In view of the same, the findings of the Revenue Assistant about ownership of land in question of the present petitioners were uphold throughout during the period of previous litigations and in this petition, except denying the title, respondent / Union of India has not brought any evidence to rebut the fact that petitioner has no right, title or interest in the land in question. LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.14 of 29 Accordingly, this issue is decided in favour of petitioner and against the respondents.
Findings on issues no.2&3 Issue No.2 : What was the market value of the land in question at the time of issuance of notification U/s 4 of the LA Act ? Onus on parties.
Issue No.3 : Whether the petitioner is entitled to enhancement in compensation, if so, to what amount ? OPP
19. According to issue no.2, both the parties have to prove as what was the market value of the land in question at the time of issuance of notification U/s 4 of LA Act.
20. The total land under the ownership of petitioners was 4 bighas and 5 biswas in Khasra No.10/16. The award is Ex.R1 vide which land measuring 1 bigha 12 biswa of Village Khureji Khas was acquired. Notification was issued by the Land & Building Department on 24.08.2006. Whereas, the award has been passed and was announced on 03.05.2007. The Land Acquisition Collector has calculated market value of the land, as per schedule of rates, as circulated by Ministry of Urban Development, Government of India, New Delhi vide notification dated 15.04.1999 for period 01.04.1998 to 31.03.2000, wherein the indicated prices of land in the nearby area of Geeta Colony were notified @ Rs.2805/ per sq. meter for residential use. As LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.15 of 29 the rate was applicable to the year 2000 only, so, it was to be increased by 10% for every two years without cumulative effect and rates at the time of notification U/s 4 of LA Act in the year 2006 was fixed @ Rs.3647/ per sq. meter and further compensation for structure, solatium, additional benefits and interest were awarded. In the said award Ex.R1, all these petitioners have been shown as owners/occupants/interested persons who have filed their claim before the LAC.
21. Now during the evidence, several sale deeds and other documents have been placed on record, exhibited and proved, showing the rates of land at a higher range in comparison to the rates, as fixed by the LAC in the year 2006 at the time of issuing the notification U/s 4 of LA Act. These are of nearby localities. PW1 have been cross examined on behalf of Union of India, wherein the petitioner Anand Prakash Gupta has stated that MCD was in possession of land since 1970 and land was being used as Park since 2002. He has denied the suggestion that land measuring 1937.17 sq. meter was neither developed nor any amenities and facilities were available in the year 2002. Photographs have been placed on record showing various types of constructions surrounding the land in question.
22. It is contended by the ld. counsel for the petitioners that the rate which was taken up by the LAC of Rs.2805/ for the year LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.16 of 29 2000 was required to be increased 10% every two year till 2006 with cumulative effect, but, he has not done so. Various sale deeds i.e. Ex.PW1/1 is of the area of Vivek Vihar, Ex.PW1/17 is of the year 2005 of area East Azad Nagar, Ex.PW1/2 of the year 2004 of area Geeta Colony, Ex.PW1/4 of the area of Jheel Khuranja, Ex.PW1/5 i.e. perpetual lease deed of the year 2005 of area of Geeta Colony, another lease deed of the year 2002 of the area of Vivek Vihar, Ex.PW1/7 of the year 2005 of area of Dayanand Vihar, Ex.PW1/8 i.e. perpetual lease deed of Community Centre, E11, Karkardooma, Ex.PW1/16 of the year 2005 of area of Preet Vihar, Ex.PW1/14 of the year 2005 of area Anand Vihar, Ex.PW1/19 of the year 2005 of District Centre Laxmi Nagar, Ex.PW1/18 of the year 2004 of Preet Vihar have been placed on the record. So, not even single sale deed or perpetual lease deed has been placed on record by the petitioners for the relevant year of 2006 of the area of Chander Nagar to show that rate of land prevailing at the time of acquisition of suit land, higher to the rate fixed by LAC.
23. The ld. counsel for the petitioners has also filed certified copy of the reference in respect of some other award of Village Kondli Ex.PW1/11 and further judgment of reference U/s 18 of LA Act given by the court of Ld. ADJ regarding land of Village Kondli, wherein Ld. ADJ fixed the rate of land as Rs.8553/ per LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.17 of 29 sq. meter as on 13.02.2004. Certified copy of Kabja Karwahi has also been filed, which is Ex.PW1/12A. It is of 2006. At that time, one mother dairy booth was found to be constructed and land was found to be on road. In Ex.PW1/13A, it is mentioned that the land in question was already under the maintenance of MCD.
24. The ld. counsel for the petitioners has relied upon the various judgments, as to how the rate of land is to be calculated and has relied upon Kapil Mehra (Major General) & Ors. v. Union of India & Anr. 176 (2011) DLT 361, wherein it has been held that "increase in land price is dependent on situation of land, nature of development in surrounding area, availability of land for development in area and demand for land". It has been further held in the said judgment that "what is relevant for court to see is better use to which land is reasonably capable of being put in immediate or near futurein absence of any evidence to contrary, potentiality and advantages of subject land situated in Pocket A and parcels of land situated in Pocket C can be safely concluded to be similar in nature".
25. It is further contended by the ld. counsel for the petitioners that even according to Kabja Karwahi, there was mother dairy booth, being run commercially at the site at that time and photographs have been placed on record Ex.PW1/42 to 1/51. LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.18 of 29 According to which, there is Shri Anandpur Trust Charitable Diagnostic Centre. One Spring Bells Public Sr. Sec. School, One Satsang Bhawan, Sharma Dental Clinic, Govt. Boys Sr. Sec. School, Govt. Girls Sr. Sec. School, Vijaya Bank, Madrasa, which being run in the adjoining of land in question, which shows the potentiality of the land. There is a temple also and Community Centre is also being run from there in the adjoining, so, the land in question was having huge potentiality for commercial use and was situated on the road. These photographs have been filed in the year 2008. Whereas, at the time of Kabja Karwahi Ex.PW1/12A. No such building was found in the area adjoining to the land in question except mother dairy booth, which shows that all these buildings came into existence later on.
26. On the other hand, it is contended on behalf of the respondents that even before acquisition, land in question was being used and maintained for the Park for the residents of the area, so, it was not having any commercial potentiality in any manner, as claimed by the petitioners. It has also been contended by the respondents that rates of other colonies like Vivek Vihar, East Azad Nagar, Geeta Colony, Jheel Khuranja, Dayanand Vihar, Preet Vihar, Anand Vihar are not applicable to compare and enhance the rate of land in question of Chander LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.19 of 29 Nagar. It is further contended that land was undeveloped, hence, it could not be compared with the developed land, for which, sale deeds have been placed on record and in support of the same, ld. counsel for respondents has relied upon Lal Chand v. Union of India & Anr. AIR 2010 S.C. 170, wherein it has been held that "(E) Land Acquisition Act (1 of 1897) Ss.51A, 23 CompensationDetermination of market valuecontemporaneous transactioncertified copy of sale deed may be received in evidence by courthowever court have discretion to rely upon it or reject it as unacceptable for reasons to be recorded".
27. It is further contended that the locality of Chander Nagar cannot be compared with the locality of Vivek Vihar, East Azad Nagar, Geeta Colony, Jheel Khuranja, Dayanand Vihar, Preet Vihar, Anand Vihar and also about nature of land, whether developed or undeveloped, shape, size are to be considered and in this respect, he has relied upon judgment Valliyammal and Anr. v. Special Tehsildar (Land Acquisition) and Anr. (2011) 10SCR 293, wherein it has been held that "1.1 in fixing the market value of the acquired land, which is undeveloped or underdeveloped, the courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land is acquired(para 17)(309F LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.20 of 29 G)".
28. Regarding potentiality of the land in question, again the petitioner has relied upon judgment Om Prakash v. State of Haryana, 2011 IV AD (SC) 382, wherein it has been held that "if the compensation proceedings continued over a period of almost 20 years as in the present case, the potential of the land acquired from him must also be adjudged keeping in view the development in the area spread over the period of 20 years if the evidence so permits and cannot be limited to the near future alone. We, therefore, feel that in the circumstances, the appellants herein were fully entitled to say that the potential of the acquired land had not been fully recognized by the High Court or by the Reference Court. We must add a word of caution here and emphasize that this broad principle would be applicable where the possession of the land has been taken pursuant to proceedings under an acquiring Act and not to those cases where land is already in possession of the Government and is subsequently acquired."
29. In the second written submissions, judgment passed by Sh. Reetesh Singh, Ld. ADJ01, North East, KKD Courts, Delhi in case Chandra Pratap Singh v. Union of India & Anr. has been filed alongwith Master Plan for Delhi 2021.
30. On the other hand, ld. counsel for the respondents have LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.21 of 29 contended that various photographs and materials are to be considered, while deciding the value of the land i.e. enlargeness of the area, acquisition, category, nature of area etc. and again reiterated that land in question was already under the possession of the MCD and was being used and maintained as a Park, so, it was not having any building, potentiality of commercial viability, so, the rate as fixed by the LAC, was according to the law, after considering all the facts and circumstances and in this respect, he has relied upon judgment UOI v. Pramod Gupta (supra).
31. In support of his contention, ld. counsel for the respondent no.1 has relied upon following judgments, as under : (1) UOI v. Pramod Gupta 2005(12) SCC 1 (2) ONGC Ltd. v. Sendhabhai Vastram Patel & Ors. 2005 (6) SCC 454 (3) R P SIngh v. UOI 2005 (7) SCC 24 (4) Gafar & Ors. v. Moradabad Development Authority 2007 (7) SCC 614 (5) Ranvir Singh & Ors. v. UOI 2005 (12) SCC 59 (6) UP Jal Nigam v. M/s. Kalra Properties Pvt. Ltd. AIR 1996 SC 1170 (7) Land Acquisition Officer v. Morisetty Satyanarayana 2002 (10) SCC 570 (8) Printers House Pvt. Ltd. v. Cold Storage & Food Products & Ors. 1994 (2) SCC 134 (9) Topandas Kundamal v. State 1995 (5) SCC 336 (10) Shakuntala Bai & Ors. v. State of Maharashtra 1996 (2) SCC 152 (11) Kanwar Singh & Ors. v. UOI 1998 (8) SCC 136 LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.22 of 29 (12) M B Gopal Krishna & Ors. v. The Special Duty Collector AIR 1996 SC 3149 (13) Lal Chand v. UOI 163 (2009) DLT 299 (SC) (14) Bule v. UOI 170 (2010) DLT 371 (15) Revenue Division Officer, Kurnool District v. M. Ramakrishna Reddy (D) by LRs (2011) SCC 648
32. In support of his contention, Ld. counsel for the petitioner has relied upon following judgments, as under : (1) Om Prakash v. State of Haryana & Ors.
(2) Satish & Ors. v. State of UP & Ors.
(3) Valliyammal and Another v. Special Tehsildar (Land Acquisition) and Another etc. (4) Kapil Mehra (Major General) & Ors. v. Union of India & Another (5) Lal Chand v. Union of India (6) Madishetti v. LAO (7) Judgment dated 24.05.2014 passed by ADJ Karkardooma Court (8) Subhash Batra v. Union of India and Another
33. It is an admitted fact that even before acquisition of land in question, the same was being used by MCD under its control as park. From the photographs placed on record, it is clear that nearby there is a temple, school and small temporary shops. The park is surrounded by certain shops, as visible from the photographs. A mother dairy booth, charitable trust, school, bank are there near land in question but they cannot be treated as commercial establishments, being public services and long back before acquisition, the land in question was being used as LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.23 of 29 park for residents of the area, so, it cannot be said that the land in question was having any potential of commercial use or was having any high value of commercial rates, as prevailing at that time in the area. The sale deeds as produced by the petitioners are of area nearby to the colony and strangely no sale deed of the Chander Nagar area has been produced and brought in evidence to prove the rate of land, which was prevailing at that time, so, it has to be seen as to how the value of the land is to be determined at the time of issuance of notification U/s 4 of LA Act. No nearby land has been acquired adjoining to the land in question or any proceedings have been filed to consider the rate.
34. It has also been contended by the ld. counsel for the petitioner that Community Centre nearby the suit land is being let out by the MCD @ Rs.10000/. In my view, the Community Centre cannot be treated as commercial establishment, as the same is being run by the MCD for the larger public interest. More so, the Community Centres are not receiving rent, as prescribed on day to day basis and are being used occasionally by the public at large, so, the same cannot be treated as commercial activity to consider the letting rate of the Community Centre per day, as contended.
35. The Ld. LAC relied upon the rates circulated by Ministry of Urban Affairs, Government of India vide order dated LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.24 of 29 15.04.1999 for the period 01.04.1998 to 31.03.2000 and in view of the non availability of new rates on 01.04.2000, LAC considered 10% enhancement on the notified rates of Rs.2805/ per sq. meter for every two years without cumulative effect. However, for Delhi, Delhi Stamp (Prevention of Under Valuation of Instruments) Rules, 2007 were introduced. This deals with the circle rates of various colonies according to their categories and the facts which are to be considered under each category in case of non agricultural land are area of land in sq. meter, minimum price fixed by the Government, if any, land use etc.
36. According to the section 4(2) of the Act, which runs as under : "As far as possible, once in two years in the month of April, the Deputy Commissioner of each District shall undertake the exercise of valuation of the following categories of immovable properties, in consultation with MCD, NDMC, Cantonment Board, DDA, L&DO etc. (as appropriate) and such other land owning authorities of the Government of India and the Government of National Capital Territory of Delhi."
37. Hence, it shows that valuation of the categories of the immovable property are to be made in consultation with the MCD/NDMC/Cantonment Board, DDA, L&DO etc., so, the LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.25 of 29 circle rates as prescribed are having certain guidelines, on which, the market value has been arrived at. According to the Written submissions filed on behalf of the petitioners, the land in question falling in the area of Chander Nagar F category, having circle rates of Rs.16100/ in the year 2007. Even otherwise, after 2000, L&DO has not revised the rates in any manner, so, LAC could not have taken 10% enhancement on the last notified rates after every two years without cumulative effect.
38. So, taking the circle rates, as were prevailing in the year 2007, is the best method to reach at the market value of the land in question at the time of issuance of notification U/s 4 of the LA Act.
39. In this respect, I am relying upon the judgment of Ld. ADJ01, North East, KKD, Delhi passed in the year 2014 in LAC No.1/2009 titled as Chandra Pratap Singh v. Union of India & Anr. of the area of Jhilmil Tahirpur, another judgmentt of which area has been upheld by the Hon'ble High Court of Delhi vide judgment dated 19.12.2014 titled as Subhash Batra v. Union of India and the method of calculating the valuation of the land on the basis of circle rates has been upheld.
40. It has been held by the Higher Courts at times that in the absence of any other evidence, firstly the sale deeds and LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.26 of 29 thereafter the judgments and awards in respect of the similar land acquired of the same village or other village shall be taken into consideration and reasonable increase or decrease depending upon the date of notification can be applied.
41. Now it is to be seen as to how decrease in percentage is to be made in the circle rates as the circle rates are of 2007, whereas, the notification u/s 4 of the LA Act was issued on 24.08.2006.
42. The Ld. ADJ01 in the judgment titled as Chandra Pratap Singh v. Union of India & Anr. has relied upon one another judgment as Seema Grover v. Government of NCT of Delhi, writ petition (C) 13122/09 decided on 08.11.2011, wherein the Hon'ble High Court of Delhi had held that act of the registry in dealing the reduction in 20% per year, which was notified on 18.07.2007 was proper as such mode of valuation was not unknown.
43. Under such circumstances, the reduction by such percentage in circle rates is arrived at the market value keeping in view the time difference between issuance of notification U/s 4 of LA Act and notification issued about the circle rates was reasonable and it has been upheld.
44. In view of above, the circle rates of suit land, which is falling in the area of Chander Nagar having category F was Rs.16100/ in the year 2007. Whereas, notification U/s 4 of LA Act was issued on 24.08.2006, so, by reducing 20% circle rates per year, LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.27 of 29 in the year 2006, it comes to Rs.12,880/. Under such circumstances, after considering the evidence brought on record and submissions of the ld. counsels for the parties, the market value of the land in question at the time of issuance of notification U/s 4 of LA Act, is fixed @ Rs.12,880/ per sq. meter.
45. According to the award No.01/200708/East dated 03.05.2007, the rate of land was fixed at Rs.3647/ per sq. meter and in view of above findings, the petitioner is entitled for enhancement of compensation in respect of rate of land to the extent of Rs.12,880/ per sq. meter, being reasonable market value at that time. Accordingly, issues no.2&3 are decided in favour of the petitioner and against the respondents.
46. Relief : Accordingly, in view of the findings on issue no. 1,2&3, the petitioner / reference filed U/s 18 of LA Act, is allowed. The petitioner has claimed compensation @ Rs. 25,000/ per sq. meter, which is now fixed and allowed @ Rs. 12,880/ per sq. meter.
47. According to the award, solatium was allowed @ 30%. Accordingly, the solatium is also allowed @ 30% on the market value, as determined above, as per provisions of LA Act, 1894.
48. The petitioner has also claimed interest, as per law. According to the award, 12% interest was allowed on the market LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.28 of 29 value, fixed by the LAC U/s 23(1)A of LA Act, 1894 from the date of notification U/s 4 of Act (24.08.2006) till the date of possession i.e. 24.01.2007. Accordingly, the same is also allowed on the present market value, fixed as above.
49. According to the award, interest U/s 34 of LA Act, 1894 was also allowed observing that MCD had taken the land on 24.01.2007 and as such petitioner is entitled to interest on the balance amount, as per section 34 of LA Act, 1894 @ 9% per annum from the date of possession i.e. 24.01.2007 to the date of payment. The same is also allowed on the enhanced market value of the land in question, as determined above.
50. The above reliefs are subject to the deductions of compensation / solatium / additional benefits / interest U/s 34 of LA Act, 1894, which have already been received by the petitioner, as were fixed by the LAC vide Award No. 01/200708/East dated 03.05.2007.
51. File be consigned to record room.
Announced in the open Court on 27.08.2015 ( Virender Kumar Goyal ) Additional District Judge01 (East)/KKD/Delhi / 27.08.15 LAC (New) No.17/1/08/07 (Old) No.211/1/07 Page No.29 of 29