Delhi District Court
Surender Gupta vs Union Of India on 16 May, 2024
In The Court of Sh. Ajay Garg,
District Judge-01, (East),
Karkardooma Courts, Delhi.
LAC No.09/2018
CNR No. DLET01-003026-2018
In the matter of :-
1.) Sh. Surinder Gupta
S/o Sh. Devi Sahai Gupta
2.) Smt. Sunita
W/o Sh. Surinder Gupta
D/o Sh. Shiv Charan Dass Gupta
Both R/o B-2/432, Yamuna Vihar, Delhi-110053.
.....Petitioners
Versus
1.) Union of India
Through LAC/ADM East
L.M. Bundh, Shastri Nagar,
D.C. Office, East District, Delhi.
2.) Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi.
.....Respondents
Award No. 04/2009-10/East
Village Ghondli
Date of Institution : 01.09.2010
Reserved on : 03.05.2024
Date of Decision : 16.05.2024
Notification U/s 4 : F.8(3)/2000/L&B/LA/396 dt.
13.04.2007.
Notification U/s 6 : F.8(3)/2000/L&B/LA/14030 dt.
04.01.2008.
LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 1 of 26
Reference Petition U/s 18 of the Land Acquisition Act, 1984.
JUDGMENT
(I) BRIEF FACTS:- 1.) This judgment shall decide the reference petition no.
09/2018 preferred by petitioners, Sh. Surinder Gupta and Smt. Sunita for the enhancement of the compensation against compulsory acquisition of their property bearing no.E-8/6, area measuring 132.4 sq. yd. (as stated in statement U/s 19 of L.A. Act) falling in Khasra No.312 min situated in the Colony known as Krishna Nagar in the revenue estate of Village Ghondli, Delhi vide Award No.04/2009-10/East dated 31.12.2009, passed by the Land Acquisition Collector (hereinafter referred to as 'LAC'), East, Delhi.
2.) To decide the reference U/s 18 L.A. Act r/w statement U/s 19 of the Act sent by the LAC Delhi, the relevant dates and facts which are necessary for adjudication in the present matter are being given herein under:-
i) Date of notification U/s 4 of the Act : 13.04.2007
ii) Date of notification U/s 6 of the Act : 04.01.2008
iii) Date of award : 31.12.2009
iv) Area of the locality : Ghondli
v) Project :Municipal Park of the Krishna Nagar, Ghondli
vi) The land use of area as per award : Residential
vii) Petition referred to court on : 01.09.2010 (II) BACKGROUND:-
1.) The petitioners being owners of property bearing no.E-8/6, LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 2 of 26 area measuring 227 sq.yds. falling in Khasra No.312 min situated in the Colony known as Krishna Nagar in the revenue estate of Village Ghondli, filed the present reference against the award No.04/2009/10/East passed on 31.12.2009, thereby assessing the market value of the land @ Rs.3647/- per sq.mtr. which is not acceptable to the petitioners. The petitioners challenged the said Award on the following grounds:-
i) The LAC has failed to assess the actual potential value of the land in question. He further failed to consider the development of Delhi and at the time of notification U/s 4 as well the rates of land in question were higher than granted by LAC.
ii) The said land was a fully developed area and surrounded by commercial complexes. The said land is favourable for commercial as well as industrial purposes also. In view of the same, the market value of the land has been assessed very low.
iii) The LAC has miserably failed to consider all the civic amenities like water, electricity, hospitals, railway station bus terminal, schools, colleges etc exist prior to notification U/s 4 of L.A. Act. The said land was even surrounded by fully developed colonies like Krishna Nagar, Shyam Lal College, Jagatpuri, South Anar Kali, Preet Vihar, Karkardooma etc.
iv) Further, the property in question has already been regularized as industrial area and petitioners have also set up their industrial area there and they have also raised construction to carry out their industrial activities.
v) The LAC has failed to consider that revenue estate of Village Ghondli has been urbanized in the year 1996 much LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 3 of 26 prior to issuance of notification U/s 4 of L.A. Act.
vi) In addition, LAC has not awarded the compensation for the damages of heavy structures exist on the said property.
The petitioners spent crores of rupees towards purchase and development of said property.
vii) In order to assess the correct value of the said land, the LAC should have taken into consideration the value of other properties in the said area. The rates prevailing in the market were not less than Rs.50,000/- per sq. yd., petitioner claimed Rs.50,000/- per sq. yd. for the said property. In support, petitioners had conducted valuation of the property in question by Govt. Approved Valuer and the valuer after inspecting the property, calculated the market value of said property @ Rs.30,000/- to Rs.35,000/- per sq. yds. in the year 2004.
viii) Further, MCD is in possession of said property since last 35 years, therefore petitioners are entitled to interest/ damages @15% p.a., solatium @ 30% on the market value in terms of judgment in case titled as 'Sunder vs. Union of India' passed by the Hon'ble Supreme Court, interest @ 12% U/s 23 (i)
(a), interest @ 9% U/s 28 of L.A. Act and interest @ 15% till payment of enhanced compensation.
ix) Petitioners claims Rs.2,00,00,000/- on account of damages of super structure, shifting charges and loss of business, which was caused by acquisition of his land.
In view of the above reasons, this reference was filed by the petitioners before this Court.
2.) Notices of the reference petition were issued to the respondents and on completion of service, the respondents had LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 4 of 26 put their appearance/(s), before the Court, through Counsel and had filed their separate written statements, in the matter.
3.) In the written statement, LAC pleaded that the land admeasuring 264 sq.yds. was acquired for the public purpose i.e. Municipal Park of Krishna Nagar, Ghondli vide Award No. 4/2009-10/ East dated 31.12.2009 and notice U/s 9 & 10, L.A. Act was issued on 24.01.2008 for filing of claims by interested persons. In response, Sh. Surender Gupta and Smt. Sunita filed their claims in respect of property bearing no. E-8/6, admeasuring 132.4 sq.yds. (110.7 sq. mtr.) @ Rs.50,000/- per sq.yds. The said claim of the petitioners is admitted to the extent of statement U/s 19 of L.A. Act. Further, the area of land and other amenities/facilities were also taken into consideration by the LAC while issuing the award and the amount awarded is just and legal. However, petitioners are claiming exorbitant market value for the said land. In support, reliance has been placed upon the award no. 4/2009-10/East and statement U/s 19 of L.A. Act. Further, LAC has taken into account the market value of said land at the time of publication of notification U/s 4, L.A. Act and assessed the fair market value on the basis of 'Schedule of Market Rates' in Delhi issued by L&DO Ministry of Urban Affairs and Employment. In view of the same, LAC has awarded 30% rise for the period 2000 to 2006 on L&DO price i.e. Rs.2805/- per sq. mtr. which came to be fixed @ Rs.3647/- per sq. mtr. Further, petitioners are not entitled to compensation in respect of structure since there was no structure over the land at the time of acquisition. The land in question was not surrounded by any developed colony, standing trees, boundary, well or male LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 5 of 26 wall at the time of notification U/s 4 of L.A. Act. Therefore, the reference filed by petitioner is not maintainable and liable to be dismissed.
4.) DMRC in their written statement stated that there is no illegality in the award no.04/2009-10/East in respect of property in question and the compensation determined by LAC i.e. Rs.3647/-per sq.mtr. is entirely in accordance with law & therefore petitioner is not entitled to claim enhanced compensation. Accordingly, the reference petition U/s 18 of L.A. Act filed by the petitioners is liable to be dismissed being not maintainable.
5.) During pendency of the case, respondent no.2- MCD was proceeded ex-parte vide order dated 03.03.2012 due to their continuous non-appearance.
(III) ISSUES:-
1.) On the basis of pleadings of the parties, following issues were framed vide order dated 16.07.2011:-
a) Whether the petitioners are entitled for the enhancement of the amount of compensation? (OPP)
b) Relief.
(IV) EVIDENCE:-
1.) In order to substantiate their case, petitioners have examined three witnesses:-
a) PW1- In order to substantiate its case, Sh. Surender LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 6 of 26 Kumar Gupta, petitioner no.1 has examined himself as PW1 and tendered his evidence by way of affidavit Ex.PW1/A. He has relied upon the following documents:-
Mark A- Gazette notification dt. 03.06.1996. Mark B- Eicher map of Delh.
Ex.PW1/1- Certified copy of sale deed dt.
23.07.2007.
Ex.PW1/2- Certified copy of sale deed dt.
21.06.2009.
Ex.PW1/3- Certified copy of sale deed dt.
11.08.2009.
Ex.PW1/4- Valuation report of land in question. Ex.PW1/5- Copy of judgment reported in 91(2001) DLT-602.
Ex.PW1/6- Certified copy of sale deed dt.
09.07.2007 in respect of property no.A-5/26 of Plot no.26, Block A-5, admeasuring 233.33 sq.yds., village Ghondli.
Mark C- Copy of circle rate in Delhi.
Mark D- Copy of award no.6/92-93 of Village Tolstoy.
Mark E- Copy of award no.1/2011-12 of Village Jhilmil Tahirpur.
Mark F- Copy of judgment passed in LAC no.
42/1/06, Village Khureji Khas.
Mark G- Copy of judgment passed in LAC no.
63/08, Village Kallu Sarai.
Mark H- Copy of judgment passed in LAC no.
19/1/06.
LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 7 of 26 He was cross-examined by counsel for Union of India but none appeared for DMRC.
b) PW2- Sh. B.P. Singh, Govt. Approved Valuer been examined as PW2, who has proved his valuation report i.e. Ex.PW1/4 and deposed that he has inspected the property in question. He has been cross-examined at length by counsel for respondent no.1.
c) PW3- Sh. Virender Kumar, Record Keeper, O/o Sub- Registrar-VIII, Geeta Colony, Delhi was examined as PW3 who has proved the certified copy of sale deed dt. 09.07.2007 as Ex.PW3/A executed by Sita Ram and Raj Pal in favour of Varahi Diamond and Finance Ltd. He was cross-examined by counsel for respondent no.1.
No other witness has been examined by the petitioner. Therefore, vide separate statement dated 27.05.2016 petitioner's evidence stands closed.
2.) In order to substantiate its case, respondent no.1- Union of India has tendered the copy of Award No.4/2009-10 dated 31.12.2009 pertaining to Village Krishna Nagar, Ghondli as Ex.R1. No witness has been examined on behalf of MCD i.e. respondent No.2.
3.) After conclusion of evidence, final arguments were heard and the judgment dated 02.01.2017 was passed by my Ld. Predecessor. Feeling aggrieved, the petitioner challenged the said judgment before the Hon'ble High Court, thereby, seeking LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 8 of 26 enhancement of the compensation amount awarded by this Court. Upon which the Hon'ble High Court, vide its order, dated 11.01.2018, set aside the impugned judgment of this Court and remanded back the matter to this Court, for recording of additional evidence and for passing order afresh, in accordance with law.
4.) In view of the directions of the Hon'ble High Court, Sh. Surinder Kumar Gupta, petitioner no.1 has tendered his additional evidence by way of an affidavit Ex.PW1/X and relied upon the following documents:-
Ex.PW1/1- Notification of urbanization issued by Govt. dt. 03.06.1966.
Ex.PW1/2- Eicher map of Delhi.
Ex.PW1/3 to Ex.PW1/5- Certified copies of sale deeds of same area i.e. Krishna Nagar for the year 2007 to 2009.
Ex.PW1/6- Valuation report of property in question (objected by counsel for Union of India).
Ex.PW1/7 to Ex.PW1/13- Judgments and award passed by LAC.
5.) Despite umpteen opportunities, no evidence was led by the respondents and vide order dated 26.08.2023, right to lead RE was closed and matter was listed for final arguments.
(V) ARGUMENTS:-
a) In support, ld. Counsel for petitioners argued that the LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 9 of 26 present reference pertains to Khasra no.312, admeasuring 227 sq.yds situated in Village Ghondli and petitioners have received the compensation amount awarded by LAC. Further, the orders passed in present proceedings shows that the acquired land is residential/ commercial in nature as per the master plan and zonal development plan. Therefore, petitioners would have earned at least Rs.1,00,000/- per sq.yd. by development/ sale of acquired land. The entire revenue estate of village Ghondli was declared urbanized vide notification dated 03.06.1966. To prove their case, petitioners had also conducted valuation of the property in question by Govt. Approved Valuer and the valuer after inspecting the property, calculated the market value of said property in the year 2004 @ Rs.30,000/- to Rs.35,000/- per sq. yds. and assessed the value of property in question @ Rs.63,60,000/-. The acquired land has already been regularized as industrial area and the only source of livelihood for the petitioners. Further, the properties situated in the same area had a value not less that Rs.50,000/- per sq.yd. The petitioners are also entitled to the damages @ Rs.2,00,00,000/- on account of loss of business and shifting of machineries and interest on solatium in terms of judgment passed by the Hon'ble Supreme Court in 'Sundar vs. UOI'. Further, if the said land was not acquired and developed and used for commercial purposes, its value would not be less than Rs.1,00,000/- per sq.yd. The acquired land was surrounded by all the civic amenities and connected to ring road, outer ring road and national highway and it did not require any further development at the time of its acquisition, therefore, no development cost is liable to be deducted. The petitioners have relied upon several sale deeds pertaining to properties situated in LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 10 of 26 Delhi and there is nothing in the cross-examination of PW1 to dispute those sale deeds, therefore, they are deemed to be admitted. Accordingly, petitioners are entitled to the enhanced compensation along-with other benefits since LAC has failed to assess the correct market value as no property inquiry was ever conducted by him. He further failed to consider the future potential of the acquired land while assessing its market value. It is a settled law that claimants are entitled to the highest value which similar land in the locality have, therefore, the sale deed having the highest value should be considered.
b) In respect of cumulative increase of 15% every subsequent year from the date of sale, the petitioners have relied upon the judgments passed by the Hon'ble Supreme Court in case titled as ' Anjani Monu Desai vs. State of Goa and Anr.' 2010 13 SCC 710 and 'Krishi Utpadan Mandi Samiti vs. Bipin Kumar and Anr.' 2004 2 SCC 283. Further, in support, petitioners have relied upon the following judgments and their relevant paragraphs are reproduced herein:-
(i) Ashok Kumar & Ors. vs. State of Haryana & Ors. (2015) 15 SCC 200 wherein it is so held:-
"18. The increase in market value is calculated with reference to the market value during the immediate preceding year. When market value is sought to be ascertained with reference to a transaction which took place some years before the acquisition, the method adopted is to calculate the year to year increase. As the percentage of increase is always with reference to the previous year's market value, the appropriate method is to calculate the increase cumulatively and not applying a flat rate.
19. In light of the aforesaid view of this Court, the Reference Court has correctly ascertained the premium to LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 11 of 26 be paid @ 12% per annum with cumulative effect from the date of earlier acquisition, dated 02.07.1985 to the acquisition herein dated 29.01.1990 and therefore, determined the fair market value of acquired lands as Rs.394 per square yards".
(ii) 'Madhusudan Kabra & Ors. vs. State of Maharashtra & Ors.' (2018) 1 SCC 40, relevant para is reproduced herein:-
"Having regard to the facts and circumstances of this case, we are of the view that the interests of justice would be served by fixing annual increase on the exemplar, in the peculiar facts of this case by 15% at compounding rate".
(iii) 'Arun Kumar & Ors. vs. Union of India & Ors.' (2018) 13 SCC 222 wherein it is held that:-
"There is no dispute that in similar cases, the enhancement was granted by this Court with the compensation calculated on the basis of 15% increase on cumulative basis. Therefore, these appeals are allowed and the judgment as far as the annual increase is concerned, shall stand substituted as follows:- All the appellants will be entitled to 15% increase at Rs.192 per square yard for the gap period of two years and six months on cumulative basis."
(iv) 'Mehrawal Khewaji Trust vs. State of Punjab' 2012 V AD (SC) 110, relevant para is produced herein for ready reference:-
"It is clear that when there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied, that it is a bona fide transaction has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. In our view, it seems to be only fair that where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 12 of 26 value should be preferred to the rest unless there are strong circumstances justifying a different course. It is not desirable to take an average of various sale deeds placed before the authority/ court for fixing fair compensation".
(v) 'Subh Ram & Ors. vs. Haryana State & Anr.' 2010 AD (SC) 619, wherein it is so held"-
"Ex. R.2 dated 27.01.1984 relied on by the LAC relates to sale of one acre of land for a price of Rs.30,000/- per acre. This is far less than the compensation that was offered by the LAC. Having regard to the large variance between the market value disclosed by the twelve sale deeds exhibited and relied upon by the Claimants (average of which is Rs.78/85) and the market value disclosed by Ex.R2 (Rs.6/19 per sq.yd) relied upon by LAC and having regard to the fact that the value disclosed "by Ex.R2 was even less that what was offered by the LAC, it has to be inferred that Ex.R2 was either Grossly undervalued or was a distress sale and has to be Excluded from consideration, as being unreliable".
(vi) 'Om Prakash vs. State of Haryana & Ors.' 2011 IV AD (SC) 383, wherein it is held that"-
"Although, in the present matter, sale instances around or near abouts the date of Notification of the present acquisition are available yet these cannot justify or explain the potential of a particular piece of land on the date of acquisition as the potential can be recognized only some time in the future and it is open to a land owner claimant to contend that the potential can be examined first at the time of the Section 18 reference, the first appeal in the High Court or in the Supreme Court in appeal as well. We must also highlight that Collectors, as agents of the state government, are extraordinarily chary in awarding compensation and the land owners have to fight for decade before they are able to get their due. We can take the present case as an example. The land was notified for acquisition in May 1990. The Collector rendered his award in May 1993 awarding a sum of Rs.2,00,000/- per acre. The reference Court by its Award LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 13 of 26 dated January, 2001 increased the compensation to Rs.125/- per square yard for the land of the road behind the ECE Factor and Rs.150/- per square yard for the land abutting the road which would come to Rs.6,05,000/- and Rs.7,26,000/- respectively for the two pieces of land. This itself is a huge increase vis-a-vis the Collector's award, the High Court in first appeal by its judgment of 24th September, 2007 enhanced the compensation for the two categories to Rs.135/- and 160/- respectively making it Rs.6,53,400/- and Rs.7,74,400/- in other words this is the compensation which ought to have been awarded by the Collector at the first time of his award on 12 th May, 1993. This has, however, come to the land owner for the first time as a result of the judgment of the High Court which is under challenge in this appeal; in other words, a full 17 years from the date of Notification under Section 4 and 14 years from the date of the Award of the Collector on which date the possession of the land must have been taken from the landowner. Concededly, the Act also provides for the payment of the solatium, interest and additional amount but we are of the opinion, and it is common knowledge, that even this payments do not keep pace with the astronomical rise in the prices in many parts of India, and most certainly in North India, in the land price and cannot fully compensate for the acquisition of the land and the payment of the compensation in driblets. The 12% per annum increase which Courts have often found to be adequate in compensation matters hardly does justice to those landowners whose land have been acquired as judicial notice can be taken of the fact that the increase is not 10 or 12 or 15% per year but is often up to 100% a year for land which has the potential of being urbanized and commercialized such as on the present case. Be that as it may, we must assume that the landowners were entitled to the compensation fixed by the High Court on the date of the Award of the Collector and had this amount been made available to the landowner on that date, it would have been possible for them to rehabilitate their holdings in some other place. The exercise has been defeated for the simple reason that the payment of compensation has been spread over almost two decades. In this view of the matter, we are of the opinion that a landowner is entitled to say that if the compensation proceedings continued over a period of almost over 20 years as in the present LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 14 of 26 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 acquire 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 could be applicable where the possession of the land has been taken pursuant to proceedings under the acquiring act and not to those cases where land is already in possession of the government and is subsequently acquired".
c) Further, counsel for petitioner also placed reliance on the judgments passed by the Hon'ble High Court in cases titled as:-
'Adil Singh vs. Union of India & Ors.' in L.A. Appeal No.612/2008 and 'Tirpat Kaur vs. Union of India & Another' in L.A. Appeal No.749/2018 wherein annual increase of 15% at compounding rate has been granted. It is further clarified by the Hon'ble High Court in CM No. 25530/2021 that appellants are entitled to statutory amount U/s 23 (1A) of L.A. Act.
d) In support, Ld. Counsel for Union of India argued that petitioners have filed the present reference petition against the acquisition of their land vide award no.04/2009-10/East and notification U/s 4 of L.A. Act was issued on 13.04.2007. The market value for acquired land has been fixed @ Rs.3647/- per sq. mtr. by the LAC. Feeling aggrieved, petitioners filed the present reference petition before this Court and the Ld. Predecessor of this Court vide order dated 02.01.2017 had enhanced the compensation from Rs.3647/- per sq. mtr. to Rs.18,400/- per sq. mtr. Thereafter, said order/ judgment was challenged before the Hon'ble High Court and the matter was LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 15 of 26 remanded back. The schedule of rates issued by L&DO for the period 01.04.1998 to 31.03.2000 is applicable on the nearby areas of Geeta Colony which is adjacent to Village Ghondli. Therefore, the instant matter is liable to be dismissed.
e) Ld. Counsel for respondent no.2- MCD filed their written submissions wherein it is stated that LAC awarded the compensation for said land on the basis of market value. After completion of proceedings under Land Acquisition Act, 1894, physical survey of land was conducted by the LAC as per which the total land acquired is 264.8 sq.yds. or 221.40 sq.mtr.
Thereafter, possession of said land was handed over to Land & Building Department and respondent no.2 deposited the awarded amount to LAC for disbursement. Further, LAC has awarded the fair compensation amount since the same was awarded on the residential rates. On the basis of evidence led by the parties and circle rates, Ld. Predecessor of this Court enhanced the compensation to Rs.18,400/- per sq.mtr. However, the Hon'ble High Court has remanded back the matter by setting aside the order dated 02.01.2017 while relying upon the judgments in case titled as 'Union of India vs. Savitri Devi', 2017 SCC online 1400, 'Lal Chand vs. Union of India & Anr. (2009)' and 'Government (NCT of Delhi) & Ors. vs. Ajay Kumar & Ors.' (2014) 13 SCC 734. Further, the said land was acquired for public purposes and any enhancement in market value of such land is in contravention of settled principle and laws. Therefore, the present reference petition filed by the petitioners is liable to be dismissed as the compensation awarded by the LAC is just, fair and reasonable.
f) Arguments heard at length. Heard. Record perused.
LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 16 of 26 Considered. Accordingly, Issue-wise findings are as follows:-
(V) ISSUE-WISE FINDINGS:-
Issue no.1: Whether the petitioners are entitled for the enhancement of the amount of compensation? (OPP)
a) Onus to prove this issue is upon the parties. At the outset, it is pertinent to mention herein that though petitioners filed claim for land admeasuring 227 sq.yds. falling in Khasra no.312 min situated in Krishna Nagar, Village Ghondli. However, as per the statement U/s 19 of L.A. Act referred to this Court, the petitioners are entitled to compensation in respect of Plot no. E- 8/6, admeasuring 132.4 sq.yds. only. Admittedly, the Union of India or the beneficiary i.e. MCD has not led any positive evidence to support the awarded market value of the land in question except the award Ex.R-1. Even after the matter was remanded back to this Court for fresh hearing by order of the Hon'ble High Court, none of the respondent has led any evidence. On the other hand, petitioner in support of his claim has relied upon the following sale deeds:-
Ex.PW Date Locality Area per Total Amount Amount Nature of sq.yard per sq.yard property Ex.PW1/1 23.07.2007 Krishna 61.5 27,00,000/- 43,902/- Freehold Sale Deed Nagar Built-up Property Ex.PW1/2 21.06.2009 Krishna 100 32,75,000/- 32,750/- Freehold Sale Deed Nagar Built-up Property Ex.PW1/3 11.08.2009 Krishna 283 47,40,000/- 16,749/- Freehold Sale Deed Nagar Built-up Property Ex.PW1/6 09.07.2007 Krishna 233.33 3,25,00,000/- 1,39,287/- Freehold Sale Deed Nagar Built-up Property LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 17 of 26
b) Apart from this petitioners have relied upon the Awards vide Mark D and Mark E, however, the same is not applicable to the instant case since they pertains to distant areas i.e. Tolstoy Marg and Jhilmil Tahirpur. Further, petitioners have relied upon the valuation report as per which the market value of the acquired land in November, 2004 assessed @ Rs.30,000/- per sq. yd. The said valuation was conducted in November, 2004 i.e. prior to issuance of the notification U/s 4 of the award in question.
c) Now coming to the issue before hand, with the passage of time, the law for ascertainment of the market value of the acquired land has evolved and various methods have been adopted by the Higher Courts to ascertain the market value of the land under acquisition. From a holistic readings of the various pronouncements of the various Higher Courts, the following guidelines can be safely culled out as under:-
"• While determining the amount of compensation payable in respect of lands acquired by the State, market value of the same is to be determined. The basic principle is that market value means the price that a willing purchaser would pay to a willing seller for a property having due regard to its existing condition with all existing advantages and its potential possibility when laid out in the most advantageous manner excluding any advantage due to carrying out of the scheme for which the property had been compulsorily acquired. • There are different methods ascertaining market value. The methods of valuation which may be adopted are (i) opinion of experts (ii) price paid within reasonable time (ii) any bonafide transaction of purchase of land acquired or land adjacent having similar advantages (iii) capitalization method or its potential value for acquisition or developed or developing colonies or nearness to roads etc. • The comparable sales method is the preferred mode over other methods of valuation. The most relevant piece of evidence which can form basis of determining market value are sale deeds pertaining to portion of land belonging to the same area which has been acquired, executed prior to the date of LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 18 of 26 notification under Section 4 of the Act. Factors to be kept in mind for determining market value on comparable sale method are that (i) sale must be a genuine transaction (ii) sale must have been executed at a time proximate to the date of issuance of notification under Section 4 of the Act, (iii) land covered by the sale must be in the vicinity of the acquired land, (iv) land covered by the sale must be similar to the acquired land and (v) the size of the plot of land covered by the sale must be comparable to the and acquired. If all the factors are satisfied then there is no reason why sale value of the land covered by the sales be not given for the acquired land. However if there is dissimilarity regarding location, sale, site or nature of land between the land covered by sale and lands acquired, it is open to the Court to proportionately reduce the compensation for the acquired lands than what is reflected in the sale depending upon advantages attached to the land.
• Where there were several exemplars with reference to similar land it was a general rule that highest exemplar, if the Court was satisfied that the same was a bonafide transaction, has to be considered and accepted. When land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bonafide transaction between a willing purchaser and a willing seller near about the time of acquisition.
• Market value of the land is to be determined as on the date of publication of notification under Section 4 (1) of the Act and not as it prevails on the date on which land has been fully developed. In the absence of any direct evidence, the Court may take recourse to other methods. Admissible evidence in which cases would be the judgments and awards passed in respect of acquisition of land made in the same village or neighbouring village. Such judgments and awards in the absence of any other evidence like sale deeds reports of experts and other relevant evidence, would be evidentiary value where notification under Section 4 of the Act is subsequent to a judgment or an award in respect of an earlier acquisition of land in the same or neighbouring villages. Increase in the market value as determined in the previous award can be given. The converse i.e. where notification under Section 4 (1) of the Act is subsequent, then a decrease can also be effected for arriving at a market value.
• Compensation cannot be ascertained with mathematical accuracy. Comparable instances have to be identified having regard to proximity of time as well as proximity with respect to situation. In order to determine market value of land acquired suitable adjustment will have to be made for various positive LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 19 of 26 and negative factors which have been described as under:-
Positive factors Negative factors
(i) largeness of area
(i) smallness of size
(ii) situation in the interior at a
(ii) proximity to a road distance from the road
(iii) frontage on a road
(iii) narrow strip of land with very
(iv) nearness to developed area small frontage compared to depth
(v) regular shape
iv) lower level requiring the
(vi) level vis-a-vis land under depressed portion to be filled up acquisition
(v) remoteness from developed
(vii) special value for an owner locality of an adjoining property to whom
vi) some special disadvantageous it may have some very factors which would deter a special advantage.
purchaser • Section 23 of the Act lists the factors to be considered by the Court to determine compensation. It provides that the claimant will be entitled to market value of the land as on the date of publication of notification under Section 4(1) of the Act. He would also be entitled to damages if any suffered by him because of acquisition of land. The function of the Court in determining the amount of compensation is to ascertain market value of the land as on the date of notification under Section 4 of the Act. The burden is on the claimant to establish that the amount awarded to him by the Land Acquisition Collector is inadequate and that he is entitled to more. Only if the initial burden is discharged the burden shifts on the State to justify the award.
• Section 24 of the Act precludes subsequent developments from being taken into considerable to determine compensation. • Need to take into consideration the value of the land adjacent to the acquired land or near-about area which possess same potentiality to work out the price fetched for determination of market value of the acquired land arises only when there is no evidence of value of the acquired land. Where evidence regarding value of the acquired land itself is on record, it is unnecessary to travel beyond that evidence in considering market value particularly for the adjacent land. • The lands which are freehold and lands which are burdened with encumbrances make a difference while attracting a willing purchaser. Freehold land commands a higher compensation as compared to lands which are burdened with encumbrances. The effect of tenants in occupation would be an encumbrance and no willing purchaser would offer the same price as would be offered for freehold land.
LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 20 of 26 • The guideline value or circle rates fixed by the authorities under the Stamp Act for determination of market value of the property are not final but are only prima facie rates prevalent in the area. The guideline value or circle rate cannot be taken to be of such worth on the aspect of market value of the land. However such guideline factors which are contained in non- statutory basic value registers are different when compared to the guideline market value and circle rates as determined by expert committees constituted under State Stamp law. Determination of guideline value or circle rates by expert committees constituted under a State Stamp Act are effected after following detailed procedure laid down in the relevant rules and publication in the State Gazette after inviting objections or suggestions from the members of public. Such guidelines value or minimum rates for registration of properties determined under statutory procedure can form a relevant piece of evidence for determining market value.
• If the sale deeds relied upon by the State reveals a lesser market value than the compensation awarded by the Collector, the same cannot be ignored but Section 25 of the Act provides that the Court should not award an amount which is lesser than what was awarded by the Collector.
• In the case of Om Prakash versus State of Haryana & Others reported in 2011 IV AD (SC) 384 it was held by the Hon'ble Supreme Court that the question of potentiality or potential value of acquired land can be recognized only some time in future and it was open to the land owners to contend that potential can be examined firstly at the time of reference under Section 18 of the Act, first appeal before the Hon'ble High Court or even in the Hon'ble Supreme Court as well. It was held that the collector is an agent of State Government and they are extra ordinarily chary in awarding compensation and land owners have to fight for decades before they are able to get their dues. It was held that although the Act provided for payment of solatium, interest and additional about it was common knowledge that even these payments do not keep pace with the astronomical rise in prices in many parts of India and most certainly in North India and these payments cannot fully compensate for acquisition of land and payment of compensation in driblets. It was held that 12% per annum increase which courts have often found to be adequate in compensation matters hardly does justice to those land owners whose lands have been acquired as judicial notice can be taken of the fact that the increase is not 10 or 12 or 15 per cent per annum but is often up to 100% in a year for the land which has the potential of being urbanized or commercialized. The LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 21 of 26 Hon'ble Supreme Court further held that there is wide spread tendency to undervalue the sale price and provision of Collector's rates has only marginally corrected the anomaly as these rates are also abnormally low and do not reflect the true value.
• In the case of Shub Ram versus State of Haryana & Another reported in 2010 (I) AD (SC) 619 the Hon'ble Supreme Court found that the sale deeds relied upon by the LAC reveals consideration which was far less than the compensation offered by the LAC. In view of large variance in the market value disclosed by the sale deeds relied upon by the LAC and those by the claimants and the fact that value of the land disclosed in the sale deed relied upon by the LAC was even less than it was offered by itself. The inference which was drawn by the Hon'ble Supreme Court was that the sale deeds relied upon by the LAC were undervalued or were distress sales and are to be excluded from consideration as being unreliable."
d) However, since no sale exemplars have been placed on record either by respondent no.1- Union of India or respondent no.2- MCD before this Court, it is a case of a scanty evidence led by the petitioners versus no evidence led by the respondents, at this juncture, I am remindful of the observation made in the case titled as "Narendra & Ors. Vs. State of Uttar Pradesh & Ors." 2017 XII AD (SC) 288 wherein it is held that:-
"Prof. (Dr.) N.R. Madhava Menon who explains the meaning and contour of social justice adjudication as the application of equality jurisprudence evolved by the Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the socio-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Court has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 22 of 26 not to result in miscarriage of justice. The Courts, in such situations, generally invoke the principle of fairness and equality which are essential for dispensing justice".
e) Applying the above principles and considering the fact that the respondents have not led any evidence to rebut the evidences led by the petitioner, the best way to ascertain the market value in the case before hand is to rely upon comparable sale deeds/lease deeds filed by the petitioner only. Though the petitioners have also relied upon the award pertaining to distant areas, however, apart from sale deeds Ex.PW1/1 to Ex.PW1/3 and Ex.PW1/6, Mark D and Mark E are discarded as neither proximity nor similarity with the land in question has been shown, rather pertains to the different areas of Delhi. Therefore, in order to assess the market value of land in question on the date of notification, reliance is placed on the sale deeds/ lease deeds of Krishna Nagar i.e. Ex.PW1/1 to Ex.PW1/3 and Ex.PW1/6. Ex.PW1/1 to Ex.PW1/3 and Ex.PW1/6 are the sale deeds pertaining to the freehold built-up residential plots of Krishna Nagar for the years 2007 & 2009.
f) Admittedly, rates of lease hold property are lesser than freehold property. At the same time, built-up property attracts more market value as compared to vacant land. In "Anjani Molu Dessai Vs. State of Goa & Anr." (2010) 13 SCC 710, the Hon'ble Apex Court has observed as under:-
"13. The legal position is that even where there are several exemplars with reference to similar lands, usually the highest of all the exemplars, which is a bona fide LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 23 of 26 transactions, will be considered. Where however there are several sales of similar lands whose prices range in a narrow bandwidth, the average thereof can be taken, as representing the market price. But where the values disclosed in respect of two sales are markedly different, it can only lead to an inference that they are with reference to dissimilar lands or that the lower value sale is on account of under-
valuation or other price depressing reasons."
g) Thus, taking average of above sale transactions vide Ex.PW1/1 to Ex.PW1/3 and Ex.PW1/6, the market value of residential plots in the vicinity of Krishna Nagar between year 2007 to 2009 comes to Rs.58,172/- sq. yard. (Rs.43,902/- + Rs.32,750/- + Rs.16,749/- + Rs.1,39,287/- divided by 4).
h) However, since there cannot be a straight jacket formula to assess the market value of one piece of land on the basis of market value of other pieces of adjacent land, other factors such as size, status, development of the area concerned comes into picture.
i) Therefore, in the totality of circumstances, considering the prevailing market rate of residential plots in Krishna Nagar, their size, development status, potentiality, proximity in time/place vis-a-vis land in question, I am of the considered opinion, that after deducting 30% on account of cost of construction, from the average market value of residential areas of Krishna Nagar, would be the comparable market value of the acquired land on the date of notification i.e. 13.04.2007. Hence, it is held that LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 24 of 26 market value of the land in question is assessed at Rs.40,720.4/- per sq.yard (Rs.58,172/- per sq.yard - 30% = Rs.40,720.4/- per sq.yard).
j) Accordingly, the petitioners herein, namely, Sh. Surinder Gupta and Smt. Sunita are held entitled to the compensation @ Rs.40,720.4/- per sq.yard in respect of their half share each out of property bearing Plot no.E-8/6, admeasuring 132.4 sq.yard (110.7 sq.mtr.) falling in Khasra no.312 min situated in Krishna Nagar, Village Ghondli, land acquired vide award in question. Accordingly, issue no.1 is decided in favour of the petitioners and against the respondents.
Relief.
a) In view of the findings on issue no. 1, the petition/ reference filed U/s 18 of L.A. Act, is allowed. The petitioners had claimed compensation of Rs.50,000/- per sq.yard, which is now fixed and allowed @ Rs.40,720.4/- per sq.yard.
b) According to the awards, solatium was allowed @ 30%. Accordingly, the solatium is also allowed @ 30% on the market value, as determined above, as per provisions of L.A. Act, 1894.
c) The petitioner has also claimed interest, as per law. According to the award, 12% interest was allowed on the market value, fixed by the LAC U/s 23(1)A of LA Act, 1894 from the date of notification U/s 4 of Act (13.04.2007) till the date of possession. Accordingly, the same is also allowed on the present LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 25 of 26 market value, fixed as above.
d) According to the award, interest U/s 34 of LA Act, 1894 was also allowed observing that MCD had taken the land 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 till expiry of one year and thereafter, @ 15% per annum till payment. The same is also allowed on the enhanced market value of the land in question, as determined above.
e) 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.04/2009- 10/East dated 31.12.2009.
A copy of this judgment be sent to SDO/LAC concerned to make the payment of the enhanced amount of compensation to the petitioners within three months from today.
No order as to cost.
File be consigned to the record room.
Announced in the open
Court on 16.05.2024 (Ajay Garg)
District Judge-01
(East)/KKD/Delhi
LAC No.09/18 Surinder Gupta Vs. Union of India Pg No. 26 of 26