Delhi District Court
Sh. Ishwar Singh vs Union Of India on 2 May, 2011
IN THE COURT OF SHRI ARUN BHARDWAJ, ADJ:
SOUTH WEST: NEW DELHI
LAC No. 252/09
In the matter of :
1. Sh. Ishwar Singh,
2. Sh. Satbir Singh,
3. Sh. Zile Singh,
4. Sh. Bhagwan Singh,
All sons of Sh. Munshi Ram,
All residents of Village Baghrola,
Delhi.
... Petitioners
Versus
1. Union of India
2. Land Acquisition Collector,
Delhi.
3. Delhi Development Authority,
Chairman, Vikas Sadan,
New Delhi.
... Respondents
Award No. : 1/992000
Village : Baghrola
Filed on : 10.11.2006
Reserved on : 27.04.2011
Decided on : 02.05.2011
JUDGMENT :
1. This is a reference under section 18 of the Land Acquisition Act, LAC No. 252/09 Page No.1/16 1894 (hereinafter referred to as the Act).
2. Notification under Section 4 of the Act was issued on 18.09.1998 and notifications under Section 17 and 6 of the Act were issued on 14.05.1999.
3. Award was passed on 18.11.1999.
4. Land measuring 9 bigha 14 biswa situated in village Bagdola, Tehsil Vasant Vihar, Delhi was acquired for planned development of Delhi for construction of Drain No.2.
5. Collector, for determining market value of the land, relied upon policy announcement which came into effect from 01.04.1998 vide notification No.F9(20)/18/L&B/LA/9227 dt. 24.09.1998 as per which Govt. of Delhi had indicated price of agricultural land @ Rs.11.20 lac per acre. Therefore, the Collector fixed the market value of agricultural land @ Rs.11.20 lacs per acre. It was also recorded in the award by the Collector that the indicated price of agricultural land would be applicable to all such cases where land has been notified under section 4 of Land Acquisition Act after 1st April, 1998 and award has not been announced.
6. Petitioners were the recorded owners of land in field No. 6//20/2(201) where each of them had 1/4th share.
7. Petitioners were not satisfied with the market value so determined by the Collector and filed reference under Section 18 of the Act for seeking enhancement of compensation to Rs.1 Crore per acre.
8. Petitioners have stated in the reference petition that Collector LAC No. 252/09 Page No.2/16 has not considered sale deeds, agreements etc.; land in question is surrounded by international airport, reputed institutions, colonies, industrial complexes and railway station etc.; facility of metalled road, bus service, hospital, college, school, market, water and electricity are available to the land in question, therefore, such land in question had building potential, land was most fertile giving 23 crops every year and land was surrounded by colonies like Janakpuri, Dwarka, Najafgarh, Mohan Garden etc.
9. Notice of reference petition was issued to Union of India through Land Acquisition Collector and to DDA, the beneficiary.
10. Union of India took an objection that Delhi Land Reforms Act is applicable to the land in question and compensation has been legally and correctly assessed by the LAC and same is adequate and just. DDA also filed its written statement separately opposing any further increase in the market value of the land in question.
11. From the pleadings of parties, following issues were framed: i. Whether the land in question is covered by DLR Act and if so its effect? OPD ii. Whether the petitioner is entitled to enhancement in compensation of the land in question, if so, to what amount? OPD iii. Relief.
12. The petitioner examined himself as PW1. Sh. S.S. Mehto, Superintendent from Land and Development Building was examined as PW2, who proved schedule of market rates of the land for the years 1st April, 1998 to LAC No. 252/09 Page No.3/16 31st March, 2000 which were exhibited as Ex.PW2/A and Ex.PW2/B. Sh. Rajender Singh, Draftsman of MCD was examined as PW3 who proved notification under section 507 of Delhi Municipal Corporation Act, 1957 as Ex. PW3/1. Sh. Deepak Suri, Patwari, was examined as PW4 who produced minimum price of agricultural land for different years in the Union Territory of Delhi as Ex.PW4/1 to Ex.PW4/7. Sh. Satish Kumar, Assistant from Ministry of Urban Development was examined as PW5 who produced notification dated 16.10.2000 as Ex.PW5/1. Sh. S.P. Nagar, UDC from DDA was examined as PW6 who filed average auction rates of residential land of Dwarka w.e.f 19921993 to 20072008 which was exhibited as PW6/1. Sh. Surat Singh, Halka Patwari of village Bagdola was examined as PW7 who produced Akshijra of village Bagdola which was exhibited as PW7/A and Khatonis for the years 198990 and 20022003 were exhibited as Ex.PW7/B and C. Lastly, Sh. Komal Grover, Planning Assistant from DDA was examined as PW8 who produced plan of Dwarka sub city which was exhibited as PW8/A.
13. On behalf of respondents, only award in question was exhibited as R1.
14. Arguments were addressed by Sh. Rajender Singh, learned Counsel for petitioners, Sh. J.R. Mathur, learned Counsel for Union of India and Sh. Arvind Gupta, learned Counsel for DDA.
15. Issue wise findings are as under: ISSUE NO.1: Petitioners have proved on record as Ex.PW3/1 notification under section 507 of Delhi Municipal Corporation Act, dated LAC No. 252/09 Page No.4/16 24.10.1994 as per which Revenue Estate of village Bagdola had ceased to be rural area.
16. In the light of judgment of Hon'ble High Court in the case of Indu Khurana Vs. Govt. of NCT of Delhi, in CWP No. 4143/03 dated 26.03.2010 Delhi Land Reforms Act ceases to apply to an agricultural land after the area is urbanized.
17. Therefore, issue No.1 is decided against the respondents holding that Delhi Land Reforms Act does not apply to the land in question.
18. ISSUE No.2: The law mandates when the state compulsorily deprives a person of his land for public purpose, by invoking the provisions of Land Acquisition Act, he must be paid compensation in accordance with law i.e. he must be paid the true market value of the acquired land. The market value as postulated in Section 23 (1) of the Act, is deemed to be the just and fair compensation for the acquired land and that the words market value would be the price of the land prevailing on the date of publication of the preliminary notification under Section 4 (1) of the Act. The acid test for determining the market value of the land is the price, which a willing vendor might reasonably expect to obtain from a willing purchaser. In determining the market value, the factors enumerated in Section 23 are to be take into consideration, and those set out in Section 24 are to be excluded.
19. In this case there is no sale deed to show market value of the land in question. The petitioner has placed reliance on schedule of market rates Ex.PW2/A and Ex. PW2/B. In Ex. PW2/A, the nearest locality to village LAC No. 252/09 Page No.5/16 Bagdola is Najafgarh Industrial Area where rate for residential land is Rs. 6,930/ per square meter.
20. Reliance is also placed by petitioner on Ex.PW3/1 which is notification issued under Delhi Municipal Corporation Act, 1957. Relying on this notification, it is argued that the land was urbanized and should have been given compensation for land in urban area.
21. To show general rise in prices, petitioner has relied upon Ex.PW4/1 to Ex.PW4/7 which are orders passed by Govt. of NCT of Delhi from time to time for fixation of minimum price of agricultural land in Delhi.
22. Petitioner has also relied upon notification dated 16/10/2000 which is Ex.PW5/1 which changed the rural use zone of the land in question to residential, commercial, Govt. use, public and semipublic facilities, public utility, recreational and transportation. Relying on this notification, petitioner has challenged the determination of market value of the land in question on the basis of agricultural land.
23. Lastly, petitioner has relied upon average auction rate of DDA. As per Ex.PW6/1, average auction rate of residential land in Dwarka in the year 200607 was Rs.1,76,020/ per square meter. Counsel for petitioners submitted that market value of the land in question should have been determined on the basis of average auction rate of agricultural land in Dwarka.
24. Counsel for petitioners also relied upon judgment titled as Delhi Development Authority Vs. Land Acquisition Collector and Others, 130(2006) Delhi Law Times 1 (DB) to contend that as the area was urbanized LAC No. 252/09 Page No.6/16 petitioners should be given compensation on the basis of schedule of market rates for land in question.
25. A perusal of cross examination of the petitioner shows that the land in question was being used for agricultural purposes till its acquisition. It was admitted that there is no Govt. hospital, school, college or commercial center or civic amenity in village Bagdola.
26. Effect of Notification under Section 507 of Delhi Municipal Corporation Act, 1957: If the land is situated within municipal limits and continues to remain agricultural it's market value cannot be determined with reference to market value of developed land. (Dev Sharma vs. Union of India and Ors.: 2005(2) LACC 170).
27. In the case of State of Maharashtra vs. Digambar Bhimshanker Tandale 1996(2) SCC 583, agricultural land situated within municipal limits was acquired. Since land had remained undeveloped, it was not considered as a building potential.
28. In the case of P. Ram Reddy & Ors. Versus LAO, Hyderabad (1995) 2 SCC 305 where the Hon'ble Supreme Court has dealt in detail about building potential of an acquired land. Para 9 of the said judgment is as under: "Para 9... An acquired land could be regarded as that which has a building potentiality, if such land although was used on the relevant date envisaged under Section 4(1) of the LA Act for agricultural or horticultural or other like purposes or was on that date even barren or waste, had the possibility of being used immediately or in the near future as land for putting an LAC No. 252/09 Page No.7/16 residential, commercial, industrial or other buildings. However, the fact that the acquired land had been acquired for building purposes, cannot be sufficient circumstance to regard it as a land with building potentiality, in that under clause (4) of Section 24 of the LA Act that any increase to the value of land likely to accrue from the use to which it will be put when acquired, is required to be excluded. Therefore, wherever, there is possibility of the acquired land not used for building purposes on the relevant date envisaged under section 4(1) of the LA Act, of being used for putting up buildings either immediately or in the near future but not in the distant future, then such acquired land would be regarded as that which has a building potentiality. Even so, when can it be said that there is the possibility of the acquired land being used in the immediate or near future for putting an buildings, would be the real question. Such possibility of user of the acquired land for building purposes can never be wholly a matter of conjecture or surmise or guess. On the other hand, it should a matter of inference to be drawn based on appreciation of material placed on record to establish such possibility. Material so placed on record or made available must necessarily relate to the matter such as: i. the situation of the acquired land visavis the city or the town or village which had been growing in size because of its commercial, industrial, educational, religious or any other kind of importance or because of its explosive population; ii. the suitability of the acquired land for putting up the buildings, be they residential, commercial or industrial, as the the case may be;
iii. possibility of obtaining water and electric supply for occupants of buildings to be put up on that land;
LAC No. 252/09 Page No.8/16 iv. absence of statutory impediments or the like for using the acquired land for building purposes;
v. existence of highways, public roads, layouts of building plots of developed residential extensions in the vicinity or close proximity of the acquired land;
vi. benefits or advantages or educational institutions, health care centres, or the like in the surround areas of the acquired land which may become available to the occupiers of buildings, if built on the acquired land; and vii. lands around the acquired land or the acquired land itself being in de demand for building purposes, to specify a few. The material to be so placed on record or made available in respect of the said matters and the like, cannot have the needed evidentiary value for concluding that the acquired land being used for building purposes in the immediate or near future unless the same is supported by reliable documentary evidence, as far as the circumstances permit. When once a conclusion is reached that there was the possibility of the acquired land being used for putting up buildings in the immediate or near future, such conclusion would be sufficient to hold that the acquired land had building potentiality and proceed to determine its market value taking into account the increase in price attributable to such building potentiality.
29. Reliance can also be placed upon the case of Umed Singh vs. Government of NCT of Delhi and Others: 69(1997) DLT 957 (DB) where it is held that 'no other provision of the Delhi Land Reforms Act or any other LAC No. 252/09 Page No.9/16 provision of any other enactment was brought to our notice due to which the revenue estate on being declared to be urbanized might affect the status of the land located therein. Accordingly, the lands situated in Village Bamnolli, irrespective of issuance of the notification under Section 507 of the Delhi Municipal Corporation Act, 1957 would continue to remain agricultural land and will not affect its status.'
30. Therefore, it is not an impossibility to have agricultural land in municipal area. There is no judgment that the moment notification under Section 507 of DMC Act is issued market value of agricultural land should be assessed as potential for building site. Building potential for acquired land has to be determined on the basis of material to be placed on record by claimants relating to matters succinctly enumerated in the case of P. Ram Reddy (Supra).
31. The fact that even after notification under section 507 of Delhi Municipal Corporation Act in the year 1993, the land was used for agricultural purposes only till the issuance of notification under Section 4 of the land acquisition Act in the year 1998 would show that in spite of being in the capital of country having explosive population, no residential colony, approved or unapproved, came up on the land in question and it negates possibility of land in question having potential for building site even in the near future. The Petitioners have brought no evidence, leave aside documentary evidence, that the acquired land was suitable for putting up buildings, be they residential/commercial or industrial as the case may be. There is no evidence of possibility of obtaining water and electric supply for occupants of building to be LAC No. 252/09 Page No.10/16 put up on that land. There is no evidence of benefits or advantages of educational institutions, health care centers or the like in the surrounding areas of acquired land, which may become available to occupiers of buildings, if built on the acquired land. There is nothing on record to show. Therefore, land in question neither had potential as building site on the date of Notification under Section 4 of the LA Act nor had said potential in near future of the acquisition. Resultantly, the market value of the land in question cannot be determined treating the land having building potential/ residential land and its market value can be determined only as agricultural land.
32. In the crossexamination the witness has clearly admitted that his land was an agricultural land. He stated in the reference petition that he was getting three crops a year from the said land. The petitioner also admitted clearly that there is no Government College or Hospital near the land in question. Therefore, no benefit can be given to the petitioner simply for the reason that the land was urbanised under Section 507 of DMC Act when there is no evidence of development and when admittedly the land remained agricultural land.
33. Effect of schedule of market rate and average auction rates of residential plots for Dwarka:
34. Date of preliminary notification under Section 4 of the Act is dated 18.09.98. As per Exhibit PW6/1 which is average auction rate of residential plots in Dwarka, there was no auction in the year 199293 to 200506. Auction records are only available for the year 200607. Therefore, LAC No. 252/09 Page No.11/16 no auction rates are available contemporaneously to date of notification under Section 4 of the Act. Those rates for 8 years after the preliminary notification are irrelevant for the purposes of determining market value. Reliance also cannot be made upon schedule of market rates of 'Najafgarh Industrial Area' as land in question is residential and neither commercial nor residential.
35. Besides the above, it is well settled by now that an agricultural land cannot be compared with a developed land for the purposes of determining market value of agricultural land. When agricultural land is acquired by the Government, lots of expenses are incurred on developing the same over a long period of time before it is sold either as residential plots or auctioned as commercial sites.
36. In the case of Ranvir Singh versus Union of India, it was held that market value of a fully developed land cannot be compared with a wholly underdeveloped land although they may be adjoining or situated at a little distance. For determining the market value, it is trite that the nature of the land plays an important role. This observation of Hon'ble Supreme Court was also quoted in Rajdevi versus Union of India 145 (2007) DLT 438 (DB). In the case of Ranvir Singh, reference was made to the case of Bhim Singh versus State of Haryana SCC (2003) 10 page 529 in following terms: "10... It was next submitted that the claimants were entitled to higher compensation as the respondents had in 1989 auctioned plots of land at the rate of Rs. 1,725/ to Rs. 2,510/ per sq. yard. In our view, this submission merely needs to be stated to be rejected. What price is fetched after LAC No. 252/09 Page No.12/16 full development cannot be the basis for fixing compensation in respect of land which was agricultural."
37. In the case of Lal Chand vs. Union of India reported in 163(2009) DLT 299 (SC), it is held as under: "Para 7... On careful consideration, we are of the view that such allotment rates of plots adopted by Development Authorities like DDA cannot form the basis for award of compensation for acquisition of undeveloped land for several reasons. Firstly, market value has to be determined with reference to large tracts of undeveloped agricultural land is a rural area, whereas the allotment rates of development authorities are with reference to small plots in a developed lay out falling within Urbana. Secondly, DDA and other statutory authorities adopt different rates for plots in the same area with reference to the economic capacity of the buyer, making it difficult to ascertain the real market value, whereas market value determination for acquisitions is uniform and does not depend upon the economic status of the land loser. Thirdly, we are concerned with market value of freehold land, whereas the allotment "rates" in the DDA Brochure refer to the initial premium payable on allotment of plots on leasehold basis..."
38. Moreover, in the case of Lal Chand (supra) the schedule of market rates of land in different parts of Delhi were specifically dealt with and it was held: "Para 17... In this case, there is nothing to show the circle rates have been determined by any statutorily appointed committee by adopting scientific basis. Hence, the principle LAC No. 252/09 Page No.13/16 in Jawajee Naganatham will apply and they will not be of any assistance for determining the market value. Further, they do not purport to be market value for lands in rural areas on the outskirts of Delhi nor the market values relating to Rithala village. The circle rates relate to urban / city areas in Delhi and are wholly irrelevant."
39. Therefore, it is held that average auction rates of residential plots in Dwarka as shown in Ex. PW6/1, schedule of market rates shown in Ex. PW2/A and PW2/B will have no bearing for determining market value of the land in question.
40. Effect of award of Mangolpur: A perusal of judgment passed by Hon'ble High Court in the case of Delhi Development Authority (supra) shows that the said land had been used for raising construction and enjoyed all civic amenities on account of its location within the developed colony. Said land was surrounded by pucca mettalled road. However, in this case, land was agricultural land. As per own words of petitioner, there is no government hospital, school, college or commercial centre or civic amenities in village Bagdola. The land in question was agricultural land.
41. Therefore, no parallels can be drawn between land of village Bagdola and land of village Mangolpur Khurd.
42. Effect of increase in minimum agricultural land in Delhi: As per Exhibit PW4/1 to PW4/7, there is a general trend of rise in minimum market price of agricultural land in Delhi. The policy announcement relied upon by the Collector came in to effect from 01.04.1998 vide notification dated 24.09.1998. LAC No. 252/09 Page No.14/16 Therefore, as per estimation of authorities, minimum rate of agricultural land as on 01.04.1998 was Rs. 11.20 lacs per acre. Preliminary notification in this case is dated 18.09.1998. If enhancement @ 12% per annum for a period of four months and twenty four days is granted, compensation payable would be Rs. 11,73,759/ per acre which can be rounded of to Rs.11,73,750/ per acre which is enhancement of Rs. 53,750/ per acre or Rs. 11,200/ per bigha. This would be the market value of the land in question.
43. Issue No. 3: Relief: i. Petitioners are entitled to receive compensation @ Rs. 11,73,750/ per acre i.e. an increase of Rs.53,750/ per acre or an increase of Rs. 11,200/ per bigha.
ii. Petitioners are entitled to receive additional amount @ 12% under Section 23(1A) of the Land Acquisition Act, 1894.
iii. Petitioners are entitled to receive solatium @ 30% per annum on the enhanced compensation.
iv. Petitioners are entitled to receive interest @ 9% per annum for first year from possession and @ 15% per annum for subsequent period till payment.
v. Petitioners are entitled to benefit of Sunder vs. Union of India: 93 (2001) DLT 153.
44. The reference is answered accordingly. Let a copy of the same be sent to the LAC(SW) for information and necessary action. Let balance LAC No. 252/09 Page No.15/16 compensation be calculated and disbursed to petitioners after deducting compensation already paid. Decree be prepared in terms of reference and file be consigned to record room.
Announcement in the open Court
on the 2nd day of May, 2011 (ARUN BHARDWAJ)
ADDL. DISTRICT JUDGE
DWARKA COURTS: NEW DELHI
LAC No. 252/09 Page No.16/16