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Delhi District Court

Vinod Kumar Etc. vs . Uoi on 24 February, 2007

                                -:1:-            LAC NO.101/05
                                                 Vinod Kumar etc. vs. UOI



   IN THE COURT OF A.K.MENDIRATTA, ADDITIONAL
             DISTRICT JUDGE : DELHI


LAC No. 101/05

1. Sh.Vinod Kumar       }
2. Sh.Manoj Kumar       }
3. Sh.Anoj Kumar        } All S/o Sh.Bhagat Singh

4. Sh.Virender Kumar }
5. Sh.Pratap Singh       } S/o. Lt. Sh.Budh Singh
   All R/o Village Aali, New Delhi                     .........Petitioners


                              VERSUS

1. Union of India
   Through Land Acquisition Collector,
   Delhi.

2. Delhi Development Authority
  Vikas Sadan, I.N.A. Market,
  New Delhi.                                        .........Respondents.



                        Village    : AALI
                        Award No. : 3/97-98 Suppl.
                        Date of notification u/s 4: 6.4.64

JUDGMENT

1. Petitioner's land as referred in statement u/s 19 of the Land Acquisition Act (herein after to be referred as the said Act) was acquired for planned development of Delhi vide Award no. 3/97-98 Suppl. by following due procedure as prescribed under the said Act. The land was notified under section 4 of the Act on 06.04.64. It has been observed by the LAC that the award was to be announced in 1983, when some land owners approached the Hon'ble Contd.....

Vinod Kumar etc. vs. UOI High Court of Delhi vide Civil Writ Petition No. 562/83 and 563/83 wherein the orders of status quo were passed. The same were finally dismissed by the Full Bench of the Hon'ble High Court on 14.12.95. After considering the claims filed by the interested persons pursuant to notices u/s 9 & 10 of the Act, LAC assessed the market value of the land @ Rs.12,000/- per bigha following the judgment passed by Reference Court in LAC No. 112/93 entitled Sumitra Devi Vs. UOI & Ors. (pertaining to village Aali) wherein land was also notified u/s 4 of the Act on 06.4.64, and acquired vide award no. 206/86 - 87.

2. Dis-satisfied by the land rates assessed by the LAC, petitioners preferred a reference petition u/s 18 of the LA Act which was in turn forwarded by the LAC for assessment by the Reference Court.

The case of the petitioners is that LAC erred in assessing the market value of the land as he failed to consider that the land is located near developed colonies such as Sarita Vihar, Sukhdev Vihar, Okhla Industrial Area and was fit for industrial, residential and commercial purpose. It was further averred that land was provided with essential amenities of life like electricity, water and transport etc. The market value of land was stated to be not less than Rs.10,000/- per sq.yd. It was also submitted that neither the petitioner was present at the time of the pronouncement of the Award nor any notice u/s 12 (2) of the LA Act was served upon him. The knowledge for Contd.....

Vinod Kumar etc. vs. UOI filing the reference was claimed from 30.5.05, when the petitioner received compensation. Compensation of land was accordingly claimed @ Rs.10,000/- per sq. yard alongwith other benefits.

3. In the W/S, filed on behalf of Union of India it was submitted that the assessment made by the LAC was adequate and just. It was further submitted that petitioner had not preferred claim in response to notices issued by LAC u/s 9 & 10 of the Act and the land could be used only for agricultural purpose.

WS was not filed on behalf of DDA despite opportunity.

4. On the pleadings of the parties following issues were framed :-

ISSUES:

1. Whether the reference is within limitation ?

2. What was the market value of the acquired land as on the date of issuance of notification u/s 4 of LA Act ?

3. To what enhancement in compensation, if any, are the petitioners entitled ?

4. Relief.

5. Petitioners in support of their case tendered in evidence copies of judgments pertaining to assessment of land in village Jasola, Tehkhand, Bahapur and Tuglakabad. The same were Contd.....

Vinod Kumar etc. vs. UOI exhibited / marked with the consent of the parties as Ex. P1 to P4 and Mark A to C and are detailed herein under :-

           Mark A is copy of the judgment passed in                  LAC

No.13/04 dated 21.4.03      entitled Giasi vs. UOI        pertaining to

assessment of land in village Jasola, wherein land acquired vide Award no. 6D/86-87 and involving date of notification u/s 4 of LA Act on 06.4.64 was assessed @ Rs. 28,000/- per bigha by the Reference Court.

Ex.P1 is copy of the judgment passed in RFA No. 149/90 dated 20.9.01 entitled Laxmi Bai Vs. UOI reported in 94 (2001) DLT 881 wherein rate of land notified u/s 4 on 23.1.65 in village Tehkhand was assessed @ Rs. 40,000/- per bigha.

Ex.P2 is copy of the judgment passed in RFA No. 240/90 dated 20.7.92 entitled Chandan Vs. UOI reported in 48 (1992) DLT 202 (DB) wherein rate of land notified u/s 4 on 23.1.65 in village Tuglakabad was assessed @ Rs. 40,000/- per bigha.

Mark B is copy of the judgment passed in RFA No. 299/84 dated 23.4.91 entitled Virender Singh Vs. UOI whereby rate of land notified u/s 4 on 05.7.73 in village Tuglakabad was assessed Contd.....

Vinod Kumar etc. vs. UOI @ Rs. 68/- per sq.yard.

Ex.P3 is copy of the judgment reported as 62 (1996) DLT 302 DB entitled Ram Mohan Wahee vs. UOI whereby land notified u/s 4 on 30.11.59 in village Bahapur was assessed by the Hon'ble High Court @ Rs.19,000/- per bigha.

Ex.P4 is copy of the judgment reported as 59 (1995) DLT 623 (DB) entitled UOI Vs. DLF United Ltd. whereby land notified u/s 4 on 13.11.72 in village Bahapur was assessed by the Hon'ble High Court @ Rs.60,000/- per bigha.

Mark C is copy of Aks Sazara of village Ali, Madanpur Khadar and Jasola.

Petitioner also examined PW-1 Sh.Ashok Kumar, Halka Patwari and PW-2 Sh.A.K.Ojha, Accounts Clerk on the point of limitation.

PW-1 Sh.Ashok Kumar, Halka Patwari deposed that Mathura Road passes through village Aali and the land of village Jasola and Aali is similar for purpose of agriculture. Village Aali was stated to be located at a distance of 3 km from Apollo hospital. He further admitted that land in village Jasola had been developed for commercial and residential purpose.

Contd.....

Vinod Kumar etc. vs. UOI During cross examination he deposed that acquired land is situated about 3 km from Mathura Road and has been acquired for planned development of Delhi and no development had taken place in the area where the land had been acquired. The developed land in village Jasola was stated to be at a considerable distance from acquired land. He further stated that he could not say whether in the year 1964 same development existed on Mathura Road. Distance between Village Ali and Jasola was stated to be about 3 km.

Petitioner also examined Sh.A.K.Ojha A/c Clerk from the office of LAC on the point of limitation. He deposed that application for payment was filed by the petitioner in office of LAC on 20.5.05 and order for payment was passed on 6.6.05. Further no notice u/s 12(2) of LA Act was issued to the petitioner.

During cross examination he deposed that the reference was filed by the petitioner on 10.6.05 and the award had been announced on 05.12.97. He further stated that notice U/s 9 and 10 was served upon the petitioner but no notice u/s 12 (2) had been served.

6. Respondents in support of their case tendered in evidence Award No. 3/97-98 under consideration along with policies of government of Delhi dated 3.5.90 and 25.7.97 which were exhibited with consent of parties as Ex.R1 to R3.

Contd.....

Vinod Kumar etc. vs. UOI

7. I have heard Counsel for the petitioner, Counsel for respondent and perused the record. My issue-wise findings are as under:-

8. ISSUE NO. 1 : The award in the present case was announced on 05.12.97. The reference appears to have been filed before the LAC on 10.6.05 and has thereafter been forwarded to the reference court for assessment of the value of the land in accordance with law. The petitioner have claimed that no notice u/s 12(2) of the LA Act was served upon the petitioner and the date of knowledge is claimed from 20.5.05. Even the payment to the petitioner is stated to have been released on 07.6.05 as recorded in statement u/s 19. The reference as such is claimed to be within limitation i.e within 6 months from 20.5.05. (date of knowledge).

Petitioner has further relied upon 2005 VII AD (SC) 665, AIR 1985 Gujrat 170, AIR 1989 Gujrat 56, AIR 1989 P & H 261, 1988 RLR 224, AIR 1963 SC 1604 in support of the contentions on point of limitation.

The principle of law has been clearly enunciated in the cases referred by the counsel for the petitioners. The question for consideration is the date which the petitioner can be presumed to have actual or constructive notice of the passing of the award. The Contd.....

Vinod Kumar etc. vs. UOI above said principles may now be applied in the present case to determine the date of knowledge of the petitioner (actual or constructive) of the passing of the award which may be considered as starting point for calculating the period of limitation.

No evidence has been led by the respondents to prove in case the petitioners were present at the spot at time of announcement of Award or if they had been served with any notice after passing of the award. In the absence of any evidence being led by the respondents to the aforesaid extent the reference cannot be deemed to be barred by limitation. Even the payment appears to have been made to the petitioners only on 07.6.05 as observed in statement u/s 19. As such the reference is within 6 months of date of knowledge i.e 20.5.05 as claimed by the petitioners. In view of above the reference is within limitation. The issue is accordingly decided.

9. ISSUE No. 2 & 3 : Counsel for the petitioner has urged that the potentiality of land of village Jasola and Aali is same and the rate of land in village Aali be assessed on the basis of rates assessed in village Jasola. He has further referred to judgment passed by the reference court in LAC No. 15/04 entitled Hari Ram vs. UOI wherein land notified u/s 4 on 6.4.64 in village Jasola acquired vide Award No.6-D/86-87 was assessed @ Rs. 28,000/- per bigha. In support of the contention the counsel has further referred and relied Contd.....

Vinod Kumar etc. vs. UOI upon 1988 (4) SC 260 entitled Nand Ram & Ors Vs. The State of Haryana, (1982) 2 SCC 374 entitled Krapa Rangiah vs. Special Deputy Collector, Land Acquisition, 78 (1999) DLT 723 entitled Mangtoo @ Mangoo vs. UOI & Ors., AIR 1985 SC 1576 entitled P.N.Bhagwati CJ A.N.Sen & D.P.Madon and Civil Appeal No. 6667- 85 of 1983.

It is settled law that the best piece of evidence to assess the market value of acquired land in the village, are the instances of sale of land in the same village and the other material depicting the market value in the same village may also be helpful. In absence of any such material, reliance can be placed on instances of prices of land in adjoining villages subject to the condition that the potentiality, location and nature of land in the adjoining villages is comparable.

At this stage, I may mention that I have decided references pertaining to Award No. 9/94-95 village Aali involving notification of land u/s 4 on 16.10.92. The location and potentiality of land of village Aali has also duly come on record in the aforesaid references. It has come on record that village Aali is located at a distance of 3 kms from village Jasola and village Madanpur Khadar is intervening between the two villages. It can be safely inferred that village Jasola and Aali are not adjoining. The assessment in village Jasola at higher rates appears to be on account of development which Contd.....

Vinod Kumar etc. vs. UOI had already commenced in the area and vicinity. The rate of land assessed in village Jasola cannot be relied upon to assess the market value in village Aali as the location, potentiality and development is not comparable. The authorities relied by the petitioner as such are not applicable in the facts and circumstances of the case. On the same analogy the judgments pertaining to assessment of land in village Bahapur, Tuglakabad and Tehkhand Ex. P1 to P4 and Mark B are not applicable for purpose of assessment of value of land as no evidence has been led to show that potentiality and location of land of village Aali and aforesaid villages was comparable.

During course of arguments, my attention has also been drawn to judgment passed by the Hon'ble High court in RFA No. 254/78 entitled UOI Vs. Bharat Singh & Anr. wherein land notified u/s 4 on 6.4.64 in village Molarband was assessed @ Rs. 12,000/- per bigha. It may be noticed that reference was therein made to the fact that village Molarband had same potentiality as the land in village Badarpur and it was also observed that village Molarband is adjacent to village Aali and Badarpur. It was also observed that the same rate had been awarded for the land notified u/s 4 on 06.4.64 in village Badarpur. In view of above, it may not be prudent to assess the value of land comparing with village Jasola which lies at a distance of at least 3 km from the acquired land, ignoring the rate of land assessed in adjoining villages.

Contd.....

Vinod Kumar etc. vs. UOI

10. In order to assess the value of land LAC has relied upon judgment passed in LAC No.112/93 Smt.Sumitra Devi Vs. UOI & Anr. pertaining to Award no. 206/86-87 village Aali, wherein land notified u/s 4 on 6.4.04 was assessed by the reference court @ Rs. 12,000/- per bigha. Perusal of aforesaid judgment filed on record in LAC No.147/94 (entitled Hari Chand Vs. UOI decided on 22.12.06) reveals that the Ld. Reference court therein referred to judgment passed by Hon'ble High Court in RFA No.1972 entitled Ranjeet Vs. UOI whereby land notified u/s 4 on 6.4.64 in village Badarpur was assessed @ RS. 12,000/- per bigha. Reliance was also placed upon judgment passed by Hon'ble High Court in RFA No. 383/76 entitled Jagmal & Ors. Vs. UOI whereby the land notified u/s 4 on 12.6.69 in village Aali was assessed @ Rs.17,000/- per bigha. The Reference Court assessed the market value of land on 06.4.64 @ Rs.12,000/- per bigha by depreciating the value assessed by the Hon'ble High Court on 12.6.69 in RFA No. 383/96 by Rs.1000/- per bigha per year. I find no reasons to differ from the value of land which already stands assessed in Award no. 206/86-87 village Aali involving the same date of notification u/s 4. Nothing has been brought on record to show in case the nature of the land differed in any manner or as to why the said rate of land be not assessed in the present case.

Contd.....

Vinod Kumar etc. vs. UOI

11. The counsel has further vehemently urged that no interest has been awarded u/s 34 of the LA Act by the LAC since the award had been pronounced on 5.12.97 and the possession of land has thereafter been taken on 26.5.98. It is urged that since the payment had been released by the LAC to the petitioner only on 30.05.05 without granting the statutory interest under the provisions of section 34 of the Act, grant of interest from the date of possession till the date of payment be awarded. Similar contention for grant of interest u/s 34 has also been raised in other references pending before this Court.

The prayer is opposed by the counsel for UOI on the ground that the reference court cannot direct the award of interest u/s 34 of this Act and the interest may be granted by the reference court u/s 28 only in case of enhancement.

Section 34 provides that if the amount of compensation is not paid on or before taking the possession of land, the collector shall pay the amount awarded with interest thereon @ 9% p.a. from the time of taking possession until it shall have been so paid or deposited. The provision further provides for payment of interest @ 15% p.a. in case compensation or any part thereof is not paid or deposited within a period of one year from the date of which possession is taken.

Contd.....

Vinod Kumar etc. vs. UOI In the present Award the LAC did not grant interest u/s 34 since the possession of land had not been taken on the date of passing of the award. However, thereafter the possession of land has been taken in 1998 and payment has been made only in 2005. There are no grounds for with holding of interest u/s 34. The only question for consideration is whether the reference court is barred to allow the grant of interest under statutory provisions of law contemplated u/s 34, which the LAC has failed to grant since the possession of land had not been taken at time of pronouncement of Award. To my mind in case the reference court declines to exercise this power than the purpose of filing reference would only be confined to assess the value of land and the petitioner would always be constrained to separately approach the higher forum to claim the statutory interest u/s 34 if wrongfully denied. This may not be the correct interpretation of provisions of law. I am therefore of the view that the Reference court has the power to direct the grant of interest u/s 34 wherein it has been wrongly declined by LAC. The petitioner is accordingly also entitled to interest u/s 34 on the amount assessed by the LAC from the date of possession till the date of payment.

12. It has next been contended by the counsel for petitioner that the interest u/s 34 as allowed above is required to be calculated on solatium and additional amount u/s 23 (1A) in terms Contd.....

Vinod Kumar etc. vs. UOI of the judgment passed by the Hon'ble Apex Court reported in 93 (2001) DLT 569 entitled Sunder Vs. UOI. The counsel for UOI has opposed this prayer but has not been able to show any grounds for declining the prayer of the petitioner.

In Sunder's case (Supra) it has been categorically observed in para 16 that interest has to accrue as per Section 34 and Section 28 of the Act on compensation awarded, whether it is as per award initially passed by the collector or by the court later. It was further held in para 23 & 24 of the judgment that expression 'awarded amount' in S-34 would mean the amount of compensation worked out in provisions of S-23, including all the sub-sections thereof and any delay in making payment of said sum should enable the party to have interest on said sum until he receives the payments. It is thus evident that S-34 warrants the grant of interest on solatium and additional amount u/s 23(1 A).

I am therefore, of the considered view that the interest so calculated u/s 34 shall include the solatium and additional amount in terms of Sunder's case (Supra) if the same has not been earlier calculated and granted to the petitioner. The counsel at this stage has also submitted that since the petitioner was not a party to the writ proceedings wherein the stay orders were passed from 1983 to 1995, additional amount for the period of stay has been wrongly excluded Contd.....

Vinod Kumar etc. vs. UOI u/s 23 (1A). I am of the considered view that since no evidence has been led by the petitioner to the aforesaid extent the same cannot be considered. Even otherwise since the petitioner has enjoyed the possession of the land for which the status quo had been passed by the Hon'ble High Court, it may be too late in the day to claim the additional amount u/s 23 (1A) for the period for which the proceedings had been stayed on account of status quo orders passed by the Hon'ble High Court.

13. I, therefore, assess the fair value of land as on 06.04.64 @ Rs.12,000/- per bigha. The issue is accordingly decided.

14. RELIEF: In view of findings on issue no.1, I am of the view that petitioners are entitled to compensation @ Rs.12,000/- per bigha. Petitioner shall also be entitled to interest u/s 34 of the LA Act from the date of possession of land till the date of payment in terms of the aforesaid provision, if the same has not been granted by the LAC. Petitioner is further entitled to interest on solatium and additional amount in terms of judgment of the Hon'ble Apex Court entitled Sunder vs UOI reported in DLT 2001 (SC) 569.

Contd.....

Vinod Kumar etc. vs. UOI While making the calculations due regard shall be made to deduct the amount initially arrived at by the LAC to avoid any duplication. No orders as to costs.

15. A copy of this judgment be sent to the Land Acquisition Collector concerned for information. The petition stands disposed off accordingly. File be consigned to record room. Announced in the open court (A.K.MENDIRATTA) Dated : 24.2.07 Additional District Judge, Delhi.

Contd.....

Vinod Kumar etc. vs. UOI 24.02.07 Present : Counsel for petitioner Counsel for respondent Arguments heard. Vide separate judgment the reference is disposed off. File be consigned to record room.

(A.K.MENDIRATTA) ADJ/Delhi/24.02.07 Contd.....

Vinod Kumar etc. vs. UOI Contd.....