Delhi District Court
Smt. Kamlesh Kumari vs Union Of India on 8 July, 2011
IN THE COURT OF SH. SANJEEV KUMAR:
ADDITIONAL DISTRICT JUDGE : ROHINI COURTS : DELHI
LAC No. 437A/08
UID no. 02404C0137712008
IN RE :
1. SMT. KAMLESH KUMARI, W/O SH KULDEEP KUMAR
MAHAJAN
2. SH. KULDEEP KUMAR MAHAJAN, PROP OF M/S K.N.
ENTERPRISES,
BOTH R/O H. NO. 663, SECTOR6, BAHADURGARH,
(HARYANA)
......PETITIONERS
Versus
1. UNION OF INDIA
THROUGH LAND ACQUISITION COLLECTOR,
NORTHWEST, DELHI.
2. SLUM AND JJ DEPTT. THROUGH
COMMISSIONER OF MUNICIPAL CORPORATION OF
DELHI,
TOWN HALL, NEW DELHI110006.
.........RESPONDENTS
Award No. 06/200405
Village GHEVRA
Date of Award/ Date
LAC No.437A/08 Page 1 of 23
of Announcement of Award
Notification U/S 4 F.11 (81)/2000/L&B/LA/18032
dt. 06.02.2003
Notification U/s 6 F.11(81)/2000/L&B/LA/1317
dt. 30.4.2003
Date of Receipt of Reference : 18.11.2005
Date of Arguments : 06.06.2011
Date of Decision : 08.07.2011
REFERENCE PETITION UNDER SECTION 18 OF THE
LAND ACQUISITION ACT 1894
J U D G M E N T
1. A large tract of land measuring 943 bighas 18 biswas in village Ghevra, Delhi, was acquired by the Govt. for a public purpose namely for rehabilitation of JJ Clusters. Notification u/s 4 of The Land Acquisition Act, 1894 (hereinafter referred to as 'LA Act') was issued on 06.02.2003 vide notification no.F.11 (81)/2000/L&B/LA/18032. Declaration u/s 6 LA Act was made on 30.4.2003 vide notification no. F.11(81)/2000/L&B/LA/1317 ; Thereafter, Award bearing no. 6/200405 was announced on 26.06.04. The LAC has determined the compensation at the uniform LAC No.437A/08 Page 2 of 23 rate of Rs.15,70,000/ per acre.
1.1 The petitioner being dissatisfied with the market value determined by the LAC, filed the present petition u/s 18 of the LA Act, seeking reference to this court. The Land Acquisition Collector (hereinafter referred to as "LAC") forwarded the same to this court, for adjudication.
2. The brief facts as mentioned in the petition are that petitioner no. 1 was the owner/bhumidar in possession of land bearing khasra no. 23/1, measuring (12) situated in the Revenue Estate of Village Ghevra, Delhi110081, whereas petitioner no. 2 was running industry as sole proprietor on the aforesaid land under the name and style of M/s S.K.M. Enterprises. Said land was acquired along with other land of village Ghevra for public purpose namely rehabilitation of JJ Clusters. LAC has passed award bearing no. 6/200405 was announced on 26.06.04 & determined the market value of the land at the uniform rate of Rs.15,70,000/ per acre.
3. The petitioners have challenged the said award on the following LAC No.437A/08 Page 3 of 23 grounds:
i) that LAC has assessed the compensation as agricultural land and not as industrial land though it was surrounded by number of industries, and there were number of residential quarters were constructed by the factory/land owners for the residence for workers;
ii) land of the petitioner was levelled throughout and petitioner has spent huge amount in raising the level of the land, construction of industrial sheds, office block, security shed, toilet and bath, stores, meter room, boundary wall with iron gate which were demolished without given any opportunity to petitioner no. 2 to remove the same resulting loss of Rs.3,00,000 for damages to machinery Rs.2,00,000/ for damages to stock and raw material;
iii) that LAC has failed to award for damages as petitioner no.2 had to dismantle the machinery and restart the same at new place resulting in damages to the extent of Rs.3,00,000/ and also suffered loss of income to the extent of Rs.5,00,000/
iv) that LAC has erred in not assessing the market value of the structures which was not only in existence on the time of LAC No.437A/08 Page 4 of 23 notification u/s 4 but also recorded in the revenue record;
4. The reference petition was contested by Union of India (hereinafter referred to as 'UOI') as well as Department of Slum & JJ MCD (hereinafter referred to as "MCD") vide their written statement, in which they had strongly denied that LAC has not assessed the appropriate market value of the land. The UOI in his reply has denied that their exist any standing trees, crops, tube well etc on the land of the petitioner.
5. Respondent no. 2 MCD in its reply has stated that land is acquired for the purpose of public interest i.e. for shifting of J J Cluster. On merit it is denied that petitioner no. 2 was running industries in the name of M/s L. M. Enterprises and was the sole proprietor. It is also denied that his land was surrounded by a large number of industries. It is also denied that land was levelled with mettled road or it was situated on metalled road. It is stated that LAC has taken all the facts into account while granting compensation to the petitioner hence, compensation granted by the LAC is just and adequate. Both the respondents has prayed that no compensation for structures and LAC No.437A/08 Page 5 of 23 machinery should be granted in favour of the petitioner and present petition be dismissed.
6. After the completion of pleadings of the parties, the following issues were framed :
1. Whether the Delhi Land Reform Act is applicable to the land in dispute and if so, to what effect?
2. Whether there was any superstructure on the land and if so, to what amount of compensation petitioner is entitled in this regard?
3. To what enhancement, if any, the petitioner is entitled to?
4. Relief.
7. In support of his claim, the petitioners have examined eight witnesses i.e. Sh. Kuldeep Kr. Mahajan, petitioner no. 2 as PW1, Ram Kumar, UDC/AZI, A& C Department, MCD, Najafgarh as PW2. Sh. Abhishek AO, Oriental Insurance Company as PW3, Sh. S.K. Wadhwa, Valuer, Sh. Pawanjeet, Assistant Zonal Officer, Najafgarh asPW5A (inadvertently no PW number is given, he will be referred as PW5A) . Sh. Naresh Kumar, LDC, L & DO Office as PW5. Sh. Kamal Singh, Manager , Syndicate Bank as PW6. Sh. Anil Kumar, Branch Manager, Oriental Insurance who is inadvertently LAC No.437A/08 Page 6 of 23 mentioned as PW6 (hereinafter will be referred as PW6A). PW7 Sh. Suresh Kumar, Patwari.
8. On the other hand respondents have not lead any evidence.
9. I have heard the Ld. Counsel for the parties and have also carefully considered the record. My issuewise findings are given hereinafter.
10. FINDINGS OF ISSUE NO. 1 : 10.1 Since petitioner has led no evidence to prove that notification u/s 507 of Delhi Municiple Act has been issued till the date land was acquired by Govt. Therefore, by virtue of section 1 of Delhi Land Reform Act, the land would be governed by the provisions of Delhi Land Reform Act, even if it was being used for nonagriculture purpose. Hence, I held that provision of Delhi Land Reform Act was applicable to the land in dispute till it was acquired by the Govt. But in my view disputed land being governed by DLR Act it does not affect the market value of the land in question as market value depend upon number of factors.
LAC No.437A/08 Page 7 of 23
11. FINDINGS ON ISSUE NO. 2 Compensation for structure: 11.1 Ld. counsel for the petitioner has contended that LAC has not awarded any compensation for the structure as the petitioner had constructed a factory on the acquired land consist of shed, office block, security shed, toilet and bath stores, meter room boundary wall with iron gate and cost of structure was Rs.15,00,000/. Ld. counsel for the petitioner had relied upon the testimony of petitioner no. 2, who had deposed in his examination in chief led by way of affidavit that acquired land was purchased by petitioner no. 1 in year 1993 for a sum of Rs.1,07,000/ and a sum of Rs.8,560/ was paid as stamp duty and registration charges. He was running a industry under the name and style of M/s K.M. Enterprise on the said land, which was registered with sales tax department and was paying income tax. He has constructed a manufacturing unit consist of shed, office, block, toilet, etc. He proved the photograph of factory as Ex.PW1/3. He paid various taxes to Govt. The bills were proved as ex. PW1/17 to PW1/19. He further depose that the property was assessed for property tax by the MCD and LAC No.437A/08 Page 8 of 23 prove notice /bill raise by MCD as Ex. PW1/24 to Ex. PW1/26. During cross examination he has admitted that the did not file any document of purchase of machinery to prove the suffer damage of Rs.3,00,000/.
He has also examined PW2 Sh. Ram Kumar UDC/AZ1, A & C Department from MCD has proved the notice issued u/s 126 to M/s K.M. Enterprise as Ex. PW1/24 and Ex. PW1/25. During his cross examination witness has admitted that in response to the notice no tax was deposited till date. PW4 S.K. Wadhwa has deposed that he is Government approved valuer and proved the valuation report as Ex. PW4/1. In cross examination he has admitted that he has not brought any document to prove he is approved valuer. PW5A Pawanjeet, Zonal Officer, MCD has proved the property tax bill raised by MCD as Ex.PW1/22, PW1/24 and Ex. PW1/25. He has also deposed that a sum of Rs.61,200/ plus interest was demanded by property tax for period from 01.04.1996 to 31.03.2004.
LAC No.437A/08 Page 9 of 23 PW5 Naresh Kumar LDC & L&DO Office has proved the schedule rates of land in different areas of Delhi from 01.04.1998 to 31.03.2000 as Ex. PW5/1.
PW6 Sh. Kamal Kumar Kataria, Manager, Syndicate Bank, Nangloi Branch has deposed that Bank has given loan to M/s K.M. Enterprise against hypothecation deed of property and Machine & prove relevant document as Ex. PW6/1 and Ex.PW6/14.
Sh. Anil Kumar Aggarwal, Branch Manager, Oriental Insurance Company Ltd., who was also inadvertently examined as PW6 but now will be referred as PW6/A has proved the insurance policy for period 09.08.2001 to 08.08.02 issued in the name of M/s K.M. Enterprises in respect of property as Ex.PW6/1 and stock as Ex.PW6/2 for the period from 29.09.02 to 28.09.03 as Ex. PW6/3 and Ex. PW6/4 respectively. During cross examination witness has admitted that he do not know whether the property against which policy was issued was LAC No.437A/08 Page 10 of 23 unauthorisedly constructed or not.
11.2 From the testimony of PW2 Sh. Ram Kumar who has deposed that MCD issued notice u/s 126 DMC Act Ex. PW1/24 and Ex. PW1/25 to M/s K.M. Enterprises for payment House Tax it is proved that there was a structure on the acquired land. Further from the testimony of PW6 Sh. Kamal Singh Kataria, Manager, Syndicate Bank, Nangloi Branch, it is proved that Syndicate Bank had given loan to M/s K.M. Enterprises. Nothing has come out from the cross examination of this witness to deny that land in question was not being used for running a factory or there exist no structure. In fact main stress of Ld. Counsel for the UOI was that structure, if any was illegal and therefore, despite running factory by the petitioner, they are not entitle to compensation for structure.
In support of his contention Ld. counsel for the UOI had relied upon the judgment of (1) Naresh Kumar and others Vs. GNCT( Delhi), W P (C) 2185/2008 dated 04.03.10 , (2) State of Orissa Vs. Taj Kishore Dass , AIR 1996 SC 1508 and (3) LAC No.437A/08 Page 11 of 23 Bhagat Ram Vs. Kisan & Others, AIT 1985SC 962.
11.3 On the other hand in rebuttal, Ld. counsel for the petitioner had relied upon the judgement Lal Chand Vs. UOI VII (2009) SLT
439. 11.4 As per factor eight of section 24 of LA Act any increase of the valuation of land on account of its use it is forbidden by law or oppose by public policy is to be ignored by the court. As per section 23 of the Delhi Land Reform Act a person cannot use his land for any other purpose other than agricultural or any other purpose connecting to it. Section 23 of the DLR Act 1953 is reproduced as below: " Use of holding for industrial purposes(1) A Bhumidhar or Asami shall not be entitled to use his holding or part thereof for industrial purposes, other than those immediately connected with any of the purposes referred to in Section 22, unless the land lies within the belt declared for the purpose by the Chief Commissioner by a notification in the Official Gazette: LAC No.437A/08 Page 12 of 23
Provided that the Chief Commissioner may, on application presented to the Deputy Commissioner in the prescribed manner, sanction the use of any holding or part thereof by a Bhumidhar for industrial purpose even though it does not lie within such a belt (2) Where permission for industrial purposes is accorded, the provision of this Chapter relating to devolution shall cease to apply to the Bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject."
The petitioner had not placed any document to prove that he has obtained any sanctioned from the prescribed authority for constructing factory. Hence, in my view the petitioner was using the land in violation of provision of section 23 of DLR Act, hence, cannot be awarded compensation for his illegal use, though he might have suffered loss. In this regard I found support from judgement relied upon by the Ld. counsel for the respondent titled as Naresh Kumar and other (Supra). In that case also LAC in review award No. 6/0304 had disallowed the compensation for structure on the ground that same was illegal . Against the said review award petitioner had filed LAC No.437A/08 Page 13 of 23 writ petition in the High Court and Division Bench of Hon'ble Justice Shri Sanjay Kishan Kaul & Hon'ble Justice Ms. Veena Birbal in page No. 6 and 7 of judgement while quoting Section 24 of the Land Acquisition Act ( hereinafter called as LA Act) had held that without sanction of MCD compensation cannot be granted for illegal structure. The relevant para of the said judgment is reproduced as below: " Matters to be neglected in determining compensation But the Court shall not take into consideration "xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx eighthly , any increase to the value of the land on account of its being put to any use which is forbidden by law or opposed to public policy". Under the said provision, compensation for illegal structure is to be neglected. The factum of there being illegal structure is not in dispute. Petitioner has annexed the copy of Review Award with the writ petition. In the said review award, reasons for deduction are given. Petitioner has not stated anything in this regard in the petition nor has filed rejoinder denying the said averments. Further nothing is placed on record to show that structure existing at the time of acquisition were in accordance with the Sanction Plan of MCD or that construction was done as per Building Bye Laws. Petitioners cannot be allowed to take advantage of their own illegal acts. Technicalities cannot be allowed to defeat the express provisions of the Statute. Provisions of Section 24 Clause 8 are very clear. Huge public money is involved. It will not be in the public interest also to accept the contention of petitioner.
LAC No.437A/08 Page 14 of 23 As far as contention of the Ld. counsel for the petitioner that since construction was very old and no action was taken by the authority U/S 81 of the DLR Act, therefore, his structure has become legal and petitioner is entitled to compensation. I do not find any force in this contention, no illegal act can be made legal only because the authorities have not chosen as per law. 'No two wrongs can make one right.' It is also known fact that the Govt. officials who have duty to stop illegal construction have failed to do their duty and result is the numerous unauthorised colony on agricultural land. But in action of govt. official does not anyway make the illegal structure of petitioner as legal and how so far old it was. As far as judgment relied upon by the petitioner is concerned I am of the view that same is not applicable in the facts of the present case as the first judgement titled as Nilima Gupta Vs. Yogesh Saroha and other 156 ( 2009), DLT 129 is concerned in this case Hon'ble Justice S .N. Dhingra has held LAC No.437A/08 Page 15 of 23 that once illegal construction is made on the agricultural land and which are converted into plots and full unauthorised colonies on the said land it losses its character and does not remain agricultural land and Civil Courts have jurisdiction to entertain the suit U/S 6 of the Specific Relief Act. This judgement has been given by the Hon'ble Justice by keeping the fact of the realities as exist in the unauthorised colonies which were plots on the agricultural land. Whereas in the present case the petitioner's land was purely an agricultural land and petitioner has not proved that it was an approved industrial area or petitioner was allowed by appropriate authority to use the land for industrial purpose. Therefore, I am of the view that DLR Act is applicable in the present case. Jjudgement relied upon by the Ld counsel for the petitioner titled as Bihari Lal Vs. UOI, AIR 1979 Delhi 84 , in my view same is also not applicable because in that case the petitioner had constructed a house on the agricultural land, therefore, the court was of the view that as per section 3 (12) of the DLR Act a dwelling house on the holding by the tenure holder is regarding as improvement, whereas in the present LAC No.437A/08 Page 16 of 23 case petitioner had constructed a chemical factory, which is not connected for the purpose ancillary to the agricultural, further failed to prove that land is being used for agricultural purpose.
As far as another contention of the petitioner that he was not given time to remove the machinery before demolishing the factory, therefore, he is entitle to Rs.3,00,000 to machinery. I am of the view that the evidence led by petitioner itself contradict his contention that he was not aware about demolition proceedings. From the possession report Ex.PW7/1 it is proved that Government had first took possession of the unbuilt land on 22.08.03 which also include land of khasra no. 1,2,3 and possession of khasra no. 23/1 left being built up which was only taken on 15.10.03 as proved from possession report Ex. PW7/2. Thus petitioner was very well aware on 22.08.03 that Govt. is going to take possession of the land and he could remove the machinery but he intentionally chooses not to remove the same for almost 2 months and hence if any damage was done to the machinery it was the non fault of LAC No.437A/08 Page 17 of 23 petitioner and he cannot be compensated for the same. In view of the above discussions I held that petitioners are not entitle to any compensation for structure as same being raised illegal in violation of provisions of DLR Act.
Issue no. 2 decided accordingly.
12. FINDINGS ON ISSUE NO. 3
: 12.1 Ld. Counsel for the petitioners has contended that valuation of land fixed by LAC is not proper and he has not adopted the correct method of valuation. He has treated the land of petitioner as agricultural land and granted the compensation at the minimum rate determined by the Govt. for agricultural land, whereas petitioner's land was being used for running industries, hence he should be given compensation at industrial rate. He has contended that petitioner has constructed office block, security shed, toilet, stores, etc. but LAC has not granted any compensation for structure, market value of which would not be less than Rs.1,50,000/.
LAC No.437A/08 Page 18 of 23 12.2 Now coming to the market value of the land in question. It is settled position that market value of the land cannot be determined with mathematically accuracy & certain guess work has to be applied while determining the market value. There are various method to determine market value such as :
i) the price paid
ii) the expert opinion
iii) the net income method/agricultural yield method.
12.3 It is settled law that onus is on the petitioner to prove that he is entitle to higher market value.
12.4 In order to discharge burden petitioner has not produced any sale deed through PW1 has stated in his examination in chief that petitioner no.1 has purchased the acquired land for a sum of Rs.1,15,560/ (included stamp duty of Rs.8,650/) in the year 1993. Hence, in the absence of any evidence if we give increase at the rate of 12% since the year 1996 and therefore, 10% till the date of notification u/s 4 as held recently by LAC No.437A/08 Page 19 of 23 Hon'ble Justice Pardeep Nandrajog in case Chiranji Lal Vs. UOI LA Appl. No. 489/2008 decided on 2nd June 2011, the market value would come to Rs.2,26,497 only, which is less than what LAC has awarded. Hence, petitioner is not entitle to any enhancement on the basis of sale transactions. 12.5 As far as another contention of Ld. Counsel for petitioner that his land should be treated as industrial land & rate of industrial land should be given to him, I do not found such contention tenable for the reason given in the issue no. 2. Further it is admitted fact that land of petitioner was not situated in any authorised industrial area for the reason that land was used for industry without any sanction from authority. Petitioner has also not led any evidence to prove that he was allowed by any authority to use the land for industrial purpose. No such sanction has been proved on record. Petitioner has only proved through the evidence led by him, he was using the acquired land for running industry. Merely by proving that his land was subject to levy of property tax by MCD or he has obtained loan against the factory from bank or insured the factory does not make a nonindustrial area an authorised industrial area. Levy LAC No.437A/08 Page 20 of 23 of property tax is based on the use of land, whether it is authorise or unauthorised it does not make a nonindustrial area into industrial, similarly grant of land also not deposed upon factory being authorised or unauthorised bank is only concerned with the security of its loan. If bank official is satisfied that sufficient collateral security has been furnished by its customer they can give the loan. Similarly Insurance company is also concerned with their business & not bothered whether the insured property is situated in authorised area or unauthorised area. Hence, I held that merely because petitioner was using the agricultural land as a factory does not convert his land into industrial land and therefore, he is not entitle to market value at the rate determine by the Govt. for various industrial areas.
12.6 As far as reliance of schedule of rates determined by Ministry of Urban Officers for various area in Delhi is concerned in my view same cannot be relied upon to determined rate of agricultural as there rates are for commercial/residential property as mentioned in letter Ex. PW5/1 relied upon by petitioner. In support of my view I rely upon Lal Chand Vs. LAC No.437A/08 Page 21 of 23 UOI. Hence, I held that petitioner's land is not different from other land of village Ghevra which was also acquired through the same notification u/s 4 dated 06.02.2003. Sinch in Chiranji Lal Vs. UOI (supra) Hon'ble Justice Sh. Pardeep Nandrajog has already determined the market value of land of village Ghevra acquire through notification dated 06.02.2003 as Rs.4,03,425 per bigha. In my view petitioner is also entitle to the same market value. Therefore, I determine the market value of petitioner's land @ Rs.4,03,425/ per bigha. Besides above, petitioners shall also be entitled to other statutory benefit i.e. 12% Addl. Amount as per section 23 (1) A & 30% solatium u/s 23 (2) & will be entitle to interest on the market value @ 9% per annum for the first year & 15% for subsequent year till the making of payment of enhanced compensation by LAC as per provision of Section 28 of the Act.
Issue no. 3 decided accordingly.
13. RELIEF 13.1 In view of the findings on Issue no.1 & Issue no. 2, the LAC No.437A/08 Page 22 of 23 petitioner is entitled to the following reliefs:
i) that petitioner would be entitled to market value of his land @ Rs.4,03,425 per acre.
ii) additional amount u/s 23 (1A) @ 12% p.a., on the market value from the date of notification u/s 4 of the LA Act till the date of award or dispossession, whichever is earlier ;
iii)solatium u/s 23(2) of LA Act @ 30% on the enhanced amount of compensation ;
iv)interest under Section 28 of L.A Act at the rate of 9% per annum for the first year from the date of dispossession and at the rate of 15% per annum on the difference between the enhanced compensation awarded by this court and the compensation awarded by the LAC for the subsequent period till the payment ;
14. Reference is disposed of accordingly. Decree sheet be prepared accordingly. Copy of this judgment be also sent to LAC for information. File be consigned to record room.
Announced in the open court (SANJEEV KUMAR)
today on 08.07.2011 ADDITIONAL DISTRICT JUDGE01:
DELHI
LAC No.437A/08 Page 23 of 23