Delhi District Court
Mr. Rajnish Aggarwal vs Union Of India on 23 January, 2012
IN THE COURT OF MS.NIVEDITA ANIL SHARMA,
ADDITIONAL DISTRICT JUDGE-02, WAKF TRIBUNAL,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Suit LAC Number : 28/08.
Unique Case ID Number : 02403C0958492007.
Reference under section 18 of Land Acquisition Act
Mr. Rajnish Aggarwal
Son of Mr. R.S.Agarwal,
Resident of Flat No.612-A,
Inderparkash Building,
21, Barakhamba Road, New Delhi.
(Through Attorney Mr. Ashok Kumar Gupta)
...................................................................................................Petitioner.
Versus
1. Union of India
2. Delhi Metro Rail Corporation
3. Land and Development Office.
..............................................................................................Respondents.
Award Number : 1/2004-2005.
Award announced on : 30.06.2004.
Purpose of acquisition : For station facility of MRTS
project on Connaught Place
-Dwarka Corridor of DMRC Ltd.
Name of Village/Locality : Barakhamba Road, Connaught
Place, New Delhi.
Date of institution of reference petition :
10.07.2007.
Date of conclusion of arguments :
23.01.2012.
Date of judgment : 23.01.2012.
Appearances: Mr. Shyam Dutt, counsel for the petitioner.
Mr.N.L. Singh, counsel for UOI, respondent number 1.
Mr. S.K.Jha, counsel for DMRC, respondent number 2.
Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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Mr.Anmol Singh, counsel for L&DO, respondent number 3.
JUDGMENT
1. This is a reference petition under section 18 of the Land Acquisition Act (hereinafter referred to as the Act) filed by Mr. Rajnish Aggarwal through attorney Mr. Ashok Kumar Gupta, the petitioner, against Union of India, the respondent number 1 (hereinafter referred to as the UOI), Delhi Metro Rail Corporation, the respondent number 2, (hereinafter referred to as the DMRC) and Land and Development Office (hereinafter referred to as the L & DO), the respondent number 3. Petitioner, claiming to be the owner of flat number 612-A, a part of property/land bearing number 21, Barakhamba Road, New Delhi, got his petition under section 18 of the Act referred to the Court for enhancement of compensation awarded in respect of the acquired land.
2. It would be pertinent to mention here that the Indraprakash Apartment Occupants Association (Regd.) had filed a letter/application/ reference dated 14.07.2004 to the Land Acquisition Collector (hereinafter referred to as the LAC) who declined vide order dated 24.04.2006 to make a reference for enhancement of compensation under section 18 of the Act. The said order had been challenged and vide order dated 16.01.2007 of the Hon'ble High Court of Delhi, the letter dated 14.07.2004 was ordered to be treated as a request for a reference under section 18 of the Act and for referring the same to the Court. A letter/application, which is dated 20.09.2005, was also submitted by the petitioner to the LAC for enhancement of compensation.
PETITION Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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3. It is averred by the petitioner that lease hold vacant land measuring 541 square meters out of property/land bearing number 21, Barakhamba Road, New Delhi, the front portion, owned by the petitioner besides others on proportionate basis as per the flats under their ownership, had been acquired vide award bearing number 1/2004 dated 30.06.2004 vide issuance of notification under section 4 of the Act dated 28.03.2003 and notification under section 6 of the Act dated 17.04.2003 for the purpose of Delhi Metro Rail Corporation for the construction of Metro Rail Station. Possession of this land was taken on 22-7-2003. The LAC has assessed the compensation @ Rs.57,960/- per square meter on proportionate basis which is too low, arbitrary, without any reasonable basis and the same is not acceptable to the petitioner. LAC treated this land as being used for commercial purposes vide his award dated 30.06.2004 and assessed the amount of compensation at Rs.57,960/- per square meter (or Rs. 5,385.115 sq. feet). The property in question which is known as Indraprakash Building, 21 Barakhamba Road is of commercial nature and also had besides its other fixtures and amenities, pump house, electrical fire pumps, two electric fire pump etc., fire fighting system, drinking water system, boundary walls, underground water tanks which had to be reconstructed due to the acquiring of the land for the respondent number 2, DMRC regarding which the petitioner had to bear expenses and unnecessary expenses. Petitioner has claimed the compensation amount as inadequate and unjustified on several grounds. As the property in question was a lease hold property, so a separate reference under section 30-31 of Land Acquisition Act was also forwarded due to dispute of apportionment of the compensation amount between the petitioner (lessee) and L&DO (Lessor). Request for enhancement of the compensation for the acquired land is made. In the present reference, the petitioner has claimed enhanced Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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compensation of proportionate land as well as some other losses occurred to him due to acquisition proceedings.
SERVICE AND WRITTEN STATEMENTS
4. All the respondents i.e. UOI, DMRC and L & DO were served with the notice of the reference petition and pursuant there to, they had appeared and filed their respective written statements contesting the case wherein they have controverted and rebutted all the averments made in the petition submitting that the compensation award is justified ,correct and reasonable. It is also submitted that the compensation has been awarded on the higher side as MNCs etc. have shifted from Barakhamba Road, Connaught Place to the satellite towns of Gurgaon and Noida and market value of the property has diminished. It is also submitted that the L & DO has already re-entered into the property prior to its acquisition and the petitioner is nor entitled to any compensation. Prayer for the dismissal of the reference petition is made.
ISSUES
5. From the pleadings of the parties, vide order dated 23.07.2009 of the learned predecessor of this Court, the following issues were framed:
1. What was the market value of the land in question at the time of issuance of notification u/s 4 of the LA Act? OPP.
2. Whether the petitioners are entitled to enhancement in compensation, if so, to what amount? OPP.
3. Relief.
EVIDENCE
6. In order to prove its case, Mr. Ashok Gupta, Attorney of petitioner Mr. Rajnish Aggarwal has examined, himself as PW1, Mr. S.S.Mehto, Superintendent, L&DO, Nirman Bhawan, New Delhi as PW2;
Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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Mr. S.P.Nagar, UDC, Billing-II, A.O.(RL), DDA Vikas Sadan, New Delhi as PW3; Mr. Zia Haider, UDC, A.O (CL), DDA Vikas Sadan, New Delhi as PW4. Mr.Shyam Dutt, counsel for the petitioner, also made a statement on 28.07.2010 that he adopts the evidence of Mr.Sunil Srivastava, Record Clerk, Sub-Registrar-VII who has been examined in connected case in LAC No.55/08 since the matters arise out of the same award. The petitioner's evidence had been closed on 28.07.2010. Thereafter, the petitioner was permitted to examine himself as a witness vide order dated 23.12.2011 on his application. However, on 11.01.2012, the counsel for the petitioner had submitted that the evidence already recorded may be considered and the case be disposed off as the petitioner is unable to appear for evidence. The fact remains that the petitioner has failed to examine himself to substantiate his averments.
7. On behalf of the respondents, the copy of award, Ex.RW1/1, and the certified copies of the sale deeds, Ex.RW1/2 to Ex.RW1/6 were only tendered in evidence. All the respondents adopted each others evidence also.
ARGUMENTS
8. I have heard the arguments at length and have given my conscious thought and prolonged consideration to the material on record, relevant provision of law and the precedents on the point. I have also perused the written arguments filed on behalf of the L&DO.
9. After due consideration, the issues are decided as follows:
ISSUE NUMBERS 1 AND 2 Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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10. Issue number 1 is........What was the market value of the land in question at the time of issuance of notification u/s 4 of the LA Act?
OPP.
11. Issue number 2 is.........Whether the petitioners are entitled to enhancement in compensation, if so, to what amount? OPP.
12. Before deciding these issues, let us examine whether the reference petition has been filed by the petitioners within the limitation period. The award in question was announced on 30.06.2004 and the Indraprakash Apartment Occupants Association (Regd.) had filed a letter/application/ reference dated 14.07.2004 to the LAC who declined vide order dated 24.04.2006. Vide order dated 16.01.2007 of the Hon'ble High Court of Delhi, the letter dated 14.07.2004 was ordered to be treated as a request for a reference under section 18 of the Act and for referring the same to the Court.
13. In this context, a reliance can be placed upon the judgment reported as Bharat Chand Dilwali v. UOI 1988, RLR 224 wherein it was held by the Hon'ble High Court of Delhi that bare knowledge of the award is not enough. Parties must have knowledge of the contents of the award. Further in Rajjan Hirabhai Motibhai & Ors v. Deputy Collector, Land Acquisition and Rehabilitation, Panam Project, Godhra and Ors., AIR 1995 Gujrat 170, it was held by the Hon'ble High Court of Gujarat that Collector has not merely to intimate parties about passing of award but he has to communicate essential contents of award, if not copy of award. The counsel for the respondents have not led any evidence on record that the essential contents of the award were Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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communicated and the petitioners had constructive or actual knowledge of the award at the time of announcement of the award by the LAC and the reference petition is barred by limitation. Therefore, as there is nothing on record which shows that petition is barred by limitation, I hold that the reference petition has been filed within the period of limitation.
14. The crucial and relevant date to find out and assess the quantum of compensation is the date of notification under section 4 of the Act i.e. 28.03.2003. The evidence relied upon or led by parties has already been discussed and considered in detail in another case titled as S.Tej Pratap Singh v. Union of India and another, Suit LAC Number 53/08/06; Unique ID Number 02403C0974282008, decided on 06.07.2011 by this Court under the same Award. There is no additional ground or evidence on record in this case which gave any other special concession to the petitioners or to make their land superior to other's land acquired under the same notification and award. Infact, this case cannot be distinguished in any manner from another Suit LAC Number 53/08/06; Unique ID Number 02403C0974282008 already decided by this Court.
15. It has been held in several judgments of the Hon'ble Supreme Court as well as the Hon'ble High Court of Delhi that while assessing the market value of the land which is sought to be acquired by the government, situation, nature, potential/ user and neighbouring land, etc, is to be considered. In this context, 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. v. Kurra Sambasiva Rao & Others, AIR 1997 SC 2625 and it was held that :
Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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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.
16. In Spl. Tehsildar, Land Acqn. Vishakhapatnam v. Smt. A. Mangala Gowri AIR 1992 Supreme Court 666, it was held by the Hon'ble Supreme Court of India that :
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.
17. In the case of Shakuntalabai (Smt) & Ors. v. State of Maharashtra, (1996) 2 SCC 152, it was held by the Hon'ble Supreme Court of India that when on record there is evidence of the value of the acquired land itself, then it is unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent land. The relevant portion of the aforesaid judgment reads as under :
Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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It is seen that if there is evidence or admission on behalfof the claimants as to the market value commanded by the acquired land itself, the need to travel beyond the boundary of the acquired land is obviated. The need to take into consideration the value of the lands adjacent to the acquired land or near about the area which possessed same potentiality to work out the prices fetched therein for determination of market value of the acquired land would arise only when there is no evidence of the value of the acquired land. In a case where evidence of the value of the acquired land itself is available on record, it is unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent lands.
18. It is pertinent to mention here that the Hon'ble Supreme Court of India and the Hon'ble High Court of Delhi have held in catena of judgments that same rate of compensation should be awarded to the claimants for similarly situated land, same date of notification and same purpose of acquisition of the land.
19. In Krapa Rangiah v. Special Deputy Collector, Land Acquisition (1982) 2 SCC 374, the Hon'ble Supreme Court of India held that the area being comparable, the situation also being the same and all the plots having been acquired under the selfsame notification for Housing Scheme it seems to us proper that the same rate of compensation should be awarded to the claimant herein as was awarded by the High Court in Appeal No.50 of 1970. The Hon'ble Supreme Court enhanced the compensation granted to the claimant by Rs. 2 per sq. yard. with consequential increase in solatium and interest.
20. The hon'ble Supreme Court in the case reported as Nand Ram v. State of Haryana, JT 1988 (4) SC 260 has held that if a compensation amount is already fixed for a land then the same amount of Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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compensation has to be given to other land owners whose similarly placed and situated adjacent is acquired under the same notification. The state cannot refuse to pay in respect of lands acquired under the same notification, compensation awarded to the land owners whose similarly situated lands had been acquired under the same notification for the same purpose by the notification of the same date.
21. In the present case the petitioner has preferred not to examine himself as a witness and has examined his attorney Mr.Ashok Kumar. Vide order dated 28.07.2010 of the learned predecessor of this court, the petitioner's evidence had been closed in the affirmative and the petitioner had preferred not to examine himself in evidence. Thereafter, the petitioner was permitted to examine himself as a witness vide order dated 23.12.2011 on his application. However, on 11.01.2012, the counsel for the petitioner had submitted that the evidence already recorded may be considered and the case be disposed off as the petitioner is unable to appear for evidence. The fact remains that the petitioner has failed to examine himself to substantiate his averments. The evidence brought on the record by both the sides has been taken into consideration.
22. However, the conscience of this Court is satisfied that the evidence of the attorney of the petitioner is not sufficient for proving the case of the petitioner for plurality of reasons.
23. FIRSTLY there is no proper notarization of the Power of Attorney of petitioner as required in view of the judgment reported as Birla DLW Ltd v. Prem Engineering Works, 1999 I AD (Delhi) 739 (it has been held that for the presumption as to power of attorney, there are Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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twin requirements i.e. execution before and authenticated by Notary Public) and the special power of attorneys of the petitioner are required to be authenticated by the Notary Public as required in view of the judgment reported as Electric Construction and Equipment Co.Ltd. v. Jagjit Electric Works, 1986, Company Cases Vol.59 page 453 (It has been held that the presumption of proper execution not available unless it is executed before and authenticated by notary public). In Birla DLW Ltd v. Prem Engineering Works, 1999 I AD (Delhi) 739, the Delhi High Court, while holding that the power of attorney is not executed before the Notary, has observed as follows:
The endorsement by the Notary stating that he had verified the signature to be that of Mr.A.A.A.A. (executor) is vague. It does not disclose the basis of the verification. It cannot be said that twin requirement of execution and authentication by the Notary are met so as to draw the presumption of validity u/s 85 of Indian Evidence Act.
24. In the present case under consideration the Power of Attorney supposedly executed by the petitioner does not meet the criteria laid down in the above referred two judgments as there is no proper notarization as required under the law.
25. The petitioner is required to file the original power of attorney which is properly notarized and authenticated which has not been done in the present case under consideration.
26. SECONDLY one very major lapse has been observed regarding the execution of the Power of Attorney which clearly indicates that the case is not maintainable in the present form. The photocopy of the Power of Attorney executed by the petitioner, Mr.Rajnish Aggarwal, in Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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favour of Mr.Ashok Kumar Gupta and Mr.Rakesh Jain shows the date of its execution as 22.04.2002. The original document had been produced in the Court at the time of evidence. It is signed both by Mr.Rajnish Aggarwal and Mr.Ashok Kumar Gupta. On careful perusal of the same, it transpires that the petitioner has not executed the attorney for the purpose of evidence in the Court more specifically in the present matter.
27. Therefore, it is clear that Mr.Ashok Kumar Gupta did not have a proper Power of Attorney to appear in this case as a witness on behalf of petitioner for making the statement on behalf of petitioner.
28. THIRDLY The affidavits of the petitioner has not been filed but only the affidavit of his so called attorney is filed which are also not proper as he has specifically not deposed regarding which paragraphs of the affidavit are correct to his knowledge and which paragraphs are correct to his belief and which paragraphs are on the basis of the information received. (Reliance can be placed upon the judgments reported as M/s Miraj Marketing Corporation v. M/s Vishaka Engineering and another, 115 (2004) Delhi Law Times 471; Ranjit Construction Co.Ltd v. National Highways Authority of India & Anr., 107 (2003) Delhi Law Times 249; Ajit Singh v. State of Punjab, 1993 (1) Recent Criminal Reports 6 and Deepak Kumar v. The State of Haryana, 1994 (1) Recent Criminal Reports 92 wherein it has been held that the affidavit should not have vague or general. It must comply with requirement of valid affidavit as laid down in CPC. It should be confined to such facts as deponent is able to take from his own knowledge to prove, except on interlocutory application on which statements of his belief may be admitted, provided grounds thereof are stated. Deponent has to verify Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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which para of affidavit was true to his knowledge and which para on basis of information received. Verification on the affidavit has to indicate which para was to the knowledge of deponent and which para was correct to belief of deponent. The officer who attested the affidavit has to append his full signatures and his designation failing which the affidavit is not valid. The statement based on personal knowledge must be distinguished from the statement based on information and belief. In the case of statements based on information, the deponent shall disclose the source of his information. The affidavit is a mode of placing evidence before the Court. A party may prove a fact or facts by means of affidavit before the Court but such affidavit must be in accordance with rules and norms laid down and in accordance with the provisions contained in the Code. This is with a purpose to find out whether it would be safe to act on such evidence and to enable the Court to know as to what facts are based in the affidavit on the basis of personal knowledge, information and belief, as this is relevant for the purpose of appreciating the evidence placed before the Court in the form of affidavit. It is only on the basis of verification, it is possible to decide the genuineness and authenticity of the allegations and the deponent can be held responsible or the allegations made in the affidavit. If the statement of facts is based on information, the source of information must be disclosed in the affidavit. In a matter where allegations of malafide are made against a person or party, it is all the more necessary that the person filing affidavit in this regard must take care to verify the facts stated in the affidavit strictly in accordance with is mentioned herein above.
29. Therefore, it is clear that the affidavit of the petitioner and his attorney are required to be filed in accordance with the law which has not Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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been done in the present case under consideration. Both the petitioners and his attorney are required to file proper affidavits as required under the law. The affidavits are required to contain the complete, correct and true facts which apparently is not so in the present case under consideration.
30. FOURTHLY the identity of the petitioner is not established as apparently he was not present before the Notary and his signatures are also not identified. The petitioners was required to file his documents of identification to show his identity which has not been done.
31. FIFTHLY in the title of the case the name of petitioner is mentioned and the case is being persued on his behalf by / through Mr.Ashok Kumar Gupta, power of attorney.
32. In view of the judgment reported as Neelam Chopra v. Anil Chopra. I (1986) DMC 445, Delhi High Court, Vol.I. as well as RBF Nidhi Ltd. V. Sate of A.P., II (2003) BC 173:2003 (2) DCR 9: 2003 (2) RCR (Crl) 361 (A.P.), the petitioner is required to file the petition duly signed by him, along with proper documents of his identity.
33. SIXTHLY it cannot be said that the above mentioned judgments are not applicable to the present case which is a LAC matter as the same are in respect of criminal cases or company matters as the law regarding affidavits, verification of petition, notarization of attorneys, etc. is equally applicable to all the cases under all laws including LAC matters.
34. The conscience of this Court is completely satisfied that for the above reasons especially as the power of attorney is not proper, the Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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affidavit of the attorneys are not proper, the evidence of the attorney of the petitioner cannot be taken into consideration, etc., in the given circumstances, the statement of the attorneys of both the petitioners cannot be recorded.
35. Apparently the case in the present form cannot be said to be maintainable. Needless to mention that this is a case of very serious nature as the government revenue and exchequer are involved and therefore all the legal requirements are necessary to be fulfilled.
36. Therefore, I am of the considered opinion that the petitioner is not entitled to enhancement of compensation as given in S.Tej Pratap Singh v. Union of India and another, Suit LAC Number 53/08/06; Unique ID Number 02403C0974282008, decided on 06.07.2011 by this Court under the same Award, wherein the reference was disposed off by holding that compensation awarded to the petitioner at Rs.57,960/- per square meter by the LAC was inadequate and unreasonable.
37. All the claims of the petitioner for enhancement of compensation and regarding the different types of losses are rejected due to lack of evidence.
38. Accordingly, these two issues are decided against the petitioner and in favour of the respondents.
ISSUE NUMBER 3
39. Issue number 3 is the relief.
Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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40. In view of above discussions, reference is disposed off by holding that compensation awarded vide award number 1/2004-2005 to petitioner at the rate of Rs.57,960/- per square meter by LAC cannot be enhanced.
41. Needless to mention here that the amount of compensation to which the petitioner, as per his proportionate share, is entitled as per the award, shall be released to him subject to the outcome in the petition for apportionment under sections 30 and 31 of the Act.
42. Copy of this order be sent to LAC for information.
43. After the completion of all formalities, the file be consigned to record room.
Announced in the open Court (NIVEDITA ANIL SHARMA) on this 23rd day of January, 2012. ADJ-02, Wakf Tribunal, New Delhi.
Suit Number LAC 28/08.
Unique ID Number: 02403C0958492007.
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