Delhi District Court
At Present Residing At A-2/16 vs Union Of India on 29 January, 2007
IN THE COURT OF SHRI YASHWANT KUMAR :
ADDITIONAL DISTRICT JUDGE (LAC) : DELHI
LAC NO : 38/1/06 AWARD NO : 5/DC/N/2001-02
(Old No. : 96/02) VILLAGE : Delhi-Patti (Pul
Bangash Area), Delhi
In the matter of :
Smt. Monika Kapoor
W/o Sh.Sanjay Kapoor
Prop. of M/s Schott Electricals,
8711, Roshan Ara Road, Delhi
At present residing at A-2/16,
Model Town, Delhi
...Petitioner
Versus
1 Union of India
through Land Acquisition Collector/ADM,
(North-District), Tis Hazari Courts, Delhi
2 Delhi Metro Rail Corporation
through its Chairman, N.B.C.C. Build.,
Bhishma Pitamah Marg, Lodhi Road,
CGO Complex, New Delhi
...Respondents
AWARD REFERENCE U/S 18 OF THE LAND ACQUISITION ACT 1 Vide notification No.F7(19)2000-L&B/LA/M.R.T.S/6712 dated 08.08.2000 U/s 4 of the LA Act (hereinafter referred to as the ACT) and declaration was also made vide notification No.F7(19)2000-L&B/LA/M.R.T.S/10647 dated 17.10.2000 U/sec. 6 of the LA Act. The land including the land of the petitioner situated in the revenue estate of village Delhi Patti (Pul Bungash Area), Delhi was acquired by the Govt. for Mass Rapid Transit System. The Land Acquisition Collector (hereinafter referred to as LAC) after completing all the requisite formalities as provided under the Act passed the award bearing No.05/DC/N/2001-02 and awarded the compensation @ Rs.6,930/- per sq. mtr.
2 Feeling dissatisfied with the quantum of compensation awarded by the LAC, the petitioner herein filed reference petition U/s 18 of the LA Act for proper adjudication/market value which was sent to the reference court. 3 In the reference petition, the petitioner has sought the enhancement of compensation on the grounds that the petitioner is a person interested as owner in possession of the land and structures of property bearing no. 8711 (Part), Roshanara Road, New Delhi which has been acquired vide the above mentioned award. The petitioner has been running a manufacturing unit of electrical goods in the said property under the name and style of M/s Schott Electricals as sole proprietor. The LAC has grossly erred in treating the property of the petitioner as residential property. The LAC further erred in taking into consideration that all around the property of the petitioner, there was large number of factories/ manufacturing units, commercial establishments, besides few properties which was being used as commercial-cum- residential. The LAC while assessing the market value has admitted the fact that the value is being fixed taking into consideration the current land use, its potentiality in future, proximity of the land to the nearby developed areas and the land being used for confirming and non- confirming purposes, but he failed to take into the consideration all the factors and that the property of the petitioner is being used for commercial-cum- industrial purposes, its potentiality in future, proximity of the land to the fully developed industrial units, markets etc., where all the facilities and amenities like purchase of raw material and sale of finished goods was readily available besides all other facilities for the purpose of manufacturing like electric, power, sewer connections, regular transport of all the types including railway, bus, transportation etc. In fact the property of the potitioner was surrounded on all sides by industrial units, commercial markets, close to banks and whole sale markets. The LAC has failed to take into consideration that the property of the petitioner is a freehold property. The LAC has grossly erred in not assessing any amount for dismentalling, shifting, storage and re-fixing of the machinery. During dismentalling and shifting, some of the machineries and goods have been damaged. Joint survey conducted by DMRC and the staff of the LAC calculated the area as 123.47 sq. mtrs. in possession of the petitioner and 113.99 sq. mtrs. as built up area. Whereas, the LAC has assessed the compensation only for 80 sq. mtrs. in favour of the petitioner. Therefore, the petitioner is entitled to receive full compensation in the area of the land in her possession i.e. 123.47 sq. mtrs besides 113.99 sq. mtrs. for built up area. On these grounds, the petitioner has filed this reference petition and has claimed Rs.50,000/- per sq. yard of the land in question besides the compensation for dismentalling, shifting, storage, re-fixing of machineries and also the structures as per the valuation report filed by the petitioner.
4 The UOI, in its written statement has raised the objections on the ground that the Delhi Land Reform Act is applicable to the land in dispute. The correctness of the khasra nos., their area and the extent of share of the petitioner therein admitted only to the extent as specified by the LAC in his statement furnished U/s 19 of the LA Act. In response to notice issued by the LAC U/sec 9 & 10 of the LA Act and petitioner has preferred claim. The land in question is not surrounded by any developed or un-developed colony and can only be used for agricultural. There was no structure, tree, well, or tube well on the land in question at the time of publication of notification U/sec. 4 of the LA Act. 5 DMRC, in its written statement, has raised the objections on the ground that the land was acquired under the LA Act vide the LAC bearing award no.5/DC/N/2001-2002. The possession of the land was taken through the transport department on 10.07.2001 & 16.07.2001. The compensation for the property in question are properly assessed by the LAC. The compensation awarded is rational and as per the fair market value, the compensation for the land in question are assessed by the LAC considering the situation of the land in the vicinity and thus arriving at the ''fair market value''. All the averments made in the reference petition have been denied except those specifically admitted in this written statement by DMRC.
6 On the pleadings of the parties, the following issues were framed by this court on 19.04.2006 which are as under :
1 What is the area of land acquired from the petitioner?
Onus on parties.
2 What was the market value of the property in question at the time of issuance of notice U/s. 4 of the LA Act? Onus on parties.
3 Whether the petitioner is entitled to enhancement of compensation, if so, to what amount? OPP 4 Relief.
7 The petitioner, in support of her case, filed her evidence by way of affidavit but the petitioner herself has not appeared for tendering her affidavit and also for examination in evidence. Therefore, the evidence by way of affidavit filed by Ms.Monika Kapoor/petitioner shall not be read in evidence. However, the petitioner has appointed her husband Sh.Sanjay Kapoor as an attorney to depose on her behalf in evidence. Sh.Sanjay Kapoor has been examinedas PW3 who has exhibited his affidavit as Ex.PW3/A. Sh.Subhash Chandra Chawla, UDC, Commercial Land Branch, Vikas Sadan, New Delhi has been examined as PW1 who has proved the perpetual lease deed dt.22.11.1995 as Ex.PW1/1, possession letter Ex.PW1/2, site plan of DDA Ex.PW1/3. The counsel for the petitioner has also tendered in evidence the certified copy of the evidence conducted in the LAC No.32/1/06 titled H.S.Hyde & Co. Vs UOI & Anr as Ex.P-4 (Colly). Whereas, the counsel for the respondents have tendered in evidence the award No.5/DC/N/2001-2002 of the area of Pul Bangash, Delhi accounced on 20.06.2001 as Ex.R-1, the copies of the sale deed No.2046 executed on 13.03.1995 & registered on 13.03.1995 as Mark-A (certified copy of the same has already been filed in LAC No.76/1/06 title Sheela Rani, award No.3/1999-2000 of village Delhi-Patti on 12.09.2006) and copy of the sale deed No.7421 executed on 14.01.1997 & registered on 14.01.1997 as Mark-B (certified copy of the same has already been filed in LAC No.76/1/06 title Sheela Rani, Award No.3/1999-2000 of village Delhi-Patti on 12.09.2006). The counsel for the respondents have also tendered in evidence the copy of the letter No.F.20 (2)2000 MP/PT-IV addressed to the Chief Engineer (N- III), Delhi Metro Rail Corporation Ltd from the Director (AP) II regarding the land near Pul-Bangash Metro Station as Mark-C. 8 I have heard the counsel for both the parties and have perused the entire records. My issue-wise findings are as under:-
ISSUE NO. 1 9 The onus to prove this issue is upon the petitioner. The petitioner has evered in the reference petition that joint survey conducted by DMRC and the staff of the LAC calculated the area as 123.47 sq. mtrs. in possession of the petitioner and 113.99 sq. mtrs. as built up area. Whereas, the LAC has assessed the compensation only for 80 sq. mtrs. in favour of the petitioner. Sh.Sanjay Kapoor/ PW3, during his cross examination, has deposed that ''it is correct that I have not filed any documents showing the ownership of this land in this court because I was paid compensation by the LAC as the owner of the property. I have submitted in the office of the LAC in respect of the land power of attorney, agreement to sell and WILL executed in favour of Ms. Monika Kapoor, others were the owners of the property who executed above said documents in favour of Ms. Monika Kapoor. PW3 has denied the suggestion that the actual area is less than 123.47 sq. mtrs.'' A perusal of the award no.5/DC/N/2001-2002 Ex.R-1 reveals that the petitioner filed the agreement to sell, GPF and WILL in support of her claim before the LAC. Perusal of the statement u/s 19 of the LA Act also reveals that the total area of the acquired land is mentioned as 74.54 sq. mtrs. as vacant land and 113.99 sq. mtrs. as built up area. The LAC has assessed the compensation as full share of the acquired land in favour of the petitioner. The objections to the statement u/s 19 of the LA Act was also filed by the petitioner. DMRC filed reply to the objections wherein, the contentions made in the reference petition have been denied except those specifically admitted in the reply. Parawise comments to the objections filed by the petitioner to the statement u/s 19 of the LA Act was also filed by the LAC wherein the LAC has stated that the property no.8711 as mentioned at S.No.24, table no.2 of the award no.5/DC/N/2001-2002 for which two claimants namely, Smt.Monika Kapoor and Sh.Sanjay Kapoor. M/s Himalaya Electrical claimed u/s 9 & 10 for compensation of the acquired property area admeasuring 80 sq. mtrs. With due consideration and on the basis of documents, the compenation was awarded in favour of Smt.Monika Kapoor. Thus, M/s Himalaya Electricals has not claimed/ shared in the said property. Moreover, after making award, a dispute was raised upon the area 5.46 sq. mtr. by Sh.Rakesh Gupta, an occupier and it was agreed upon before the nine occupiers of the property no.8711 that the compensations for the area 5.46 sq. mtrs. be given to him. The petitioner has not filed any document and failed to prove that the built up area is 123.47 sq. mtrs. Therefore, the petitioner is not entitled to compensation for the built up area of 123.47 sq. mtrs. This issue is answered accordingly.
ISSUE NOS. 2 & 3.
10 The onus to prove these issues is upon the petitioner. The petitioner has sought enhancement in compensation on the aforesaid grounds which are not repeated herein for the sake of brevity. Before considering & evaluating the market value of the acquired land on the date of notification i.e. 08.08.2000 U/sec. 4 of the LA Act, I would prefer to rely upon the judgments of the Hon'ble Supreme Court of India as well as the Hon'ble High Court of Delhi. The basic test was laid down by the Hon'ble Supreme Court in Special Dy. Collector & Anr. Vs Kurra Sambasiva Rao & Others, AIR 1997 SC 2625 and it was held that :
''The court is required to keep at the back of its mind that the object of assessment is to arrive at reasonable and adequate market value of the lands. In that process, though some guess work is involved. Feats of imagination should be eschewed and mechanical assessment of the evidence should be avoided. Even in the absence of oral evidence adduced by the Land Acquisition Officer or the beneficiaries, the judges are to draw from their experience the normal human conduct of the parties and bona fide and genuine sale transactions are guiding star in evaluating the evidence. Misplaced sympathies or undue emphasis solely on the claimants right to compensation would place very heavy burden on the public exchequer to which other everyone contributes by direct or indirect taxes'' In P.Ram Reddy & Others Vs Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad & Ors (1995) 2 Supreme Court cases 305, the Hon'ble Supreme Court of India held that :
''Building potentiality has to be decided on the basis of material placed on record or made available and as such material must be supported by reliable documentary evidence. Therefore, if the acquired land has the building potentiality, its value, like the value of any other potentiality of the land should necessarily be taken into account for determining the market value of such land.'' In Spl. Tehsildar, Land Acqn. Vishakhapatnam Vs Smt. A. Mangala Gowri AIR 1992 Supreme Court 666, it was held by the Hon'ble Supreme Court of India that :
''In determining the market value of the land, the price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land possessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notification would supply the date to assess the market value. Where there were bona fide and genuine sale transactions in respect of the same land under acquisition wherein the claimant who was vendee had sold at Rs.5 per sq. yard, the High Court would not be justified in excluding such transactions and placing reliance on award of some other land for awarding compensation at the rate of Rs.10 per sq. yard, within a time lag of nine months from the bona fide transaction by seller.''
11 In the present reference, the LAC while assessing the market value of the acquired land observed in the award No.5/DC/N/ 2001-02 Ex. R-1 that while determining the market value of the land as on 08.08.2000 i.e. the date of notification U/s 4 of the LA Act, several factors such as location of the land, its current land use, potentiality of future land use, the proximity of the land to the nearby developed areas, price policy of the Govt. regarding acquisition of land are to be taken into consideration. The LAC in the aforesaid award has considered the claims of the 54 interested persons including the petitioner herein and decided their claims which is as under :-
''In response to the notices issued U/s 9 & 10 of the LA Act, as many as 54 claims were received from the interested persons. The list of claims and evidence has been listed in Table No.1 furnishing the relevant details. In the claims, no documentary evidence was furnished in support of market price for land claimed. These claimed market prices are not only exorbitantly high, but also not supported by any credible documentary evidence. Hence, such claims do not reflect the true market value of land, hence rejected. Similarly, the claimants have furnished evaluation reports which were considered but not accepted as the properties were got evaluated through the Public Works Deptt., of Govt. Of Delhi having a uniform basis. Further, the claims regarding business loss, loss towards shifting have been filed by the intetrested persons without furnishing any basis and cogent reasons. Hence, such unsubstantiated claims are also not acceptable''.
12 As per the award of this reference, for determination of the market value of the land under acquisition, two methods of valuation of land were followed by the LAC to arrive at the true market value on the date of notification U/s 4 of the Act. In one method, the recorded transaction of sales of similar lands in the nearby vicinity were enquired into. It was noted that, very few registered sales transactions were carried out, which were also of very small parcels of land. Hence, the method of comparing similar lands sale transactions was found unsuitable for arriving at the fair market value of the locality, as required U/s 23 of the LA Act, 1894. In the other method, the schedule of market rates of lands in various localities of Delhi intimated/circulated by the Department of Urban Development, Ministry of Urban Affairs and Employment vide its notification No. J-22011/4/95- LD dt. 16.04.1999 was considered. The schedule of market rates notified as above have been given as indicative market prices and arrived at by experts after considering all the relevant factors affecting land prices in Delhi. The indicative market value of land for residential purpose in the Roshanara Road area of Delhi has been given as Rs.6,930/- per sq. mtr. which has been accepted as the true market value of land covered in this award.
13 The petitioner has relied upon the commercial rates on the land sold by DDA through public auction on the basis of the evidence led in LAC No.32/1/06 titled M/s H.S.Hyde & Co. & Anr Vs UOI & Anr which is Ex.P-4 (colly). In Ex.P-4 (colly), Sh.Bir Singh, Assistant, Commercial Land Deptt., DDA was examined as PW11 who produced the records of commercial plot no.2 in LSC, Gulabi Bagh, near Shashtri Nagar, Delhi. PW11 deposed that the plot was auctioned in open auction on 30.08.1995 for an amount of Rs.81,10,000/- having an area of 162 sq. mtrs. The perpetual lease deed of the said commercial plot was proved as Ex.PW11/2 and the possession letter dt. 22.11.1995 was also proved as Ex.PW11/3. Whereas, the respondents relied upon the sale deed executed on 14.01.1997 by Sh.Dinesh Kumar S/o late Sh.Ram Bhaj in respect of the land measuring 50 sq. yards situate at Roshanara Road, Delhi as Mark-A which was sold for a consideration of Rs.40,000/- the certified copy of which was filed and relied by the respondents in LAC No.56/1/06 titled Raj Kumar & Ors Vs UOI & Anr. The counsel for respondents have argued in the present reference that where there is a khasra number of the land, it falls under the head 'agricultural area' unless it is converted to lease hold or freehold. The area under this award comes within the slum area. The counsel for the petitioner has opposed to the contention of the counsel for the respondents. 14 In this context, I would prefer to place a reliance upon the judgment dt. 03.03.2005 in WP (C ) 76-79/2004 titled Chet Ram Sharma & Ors Vs UOI & Ors, the land situate in village Bahapur, New Delhi was acquired vide the notification dt. 28.11.2002 U/s 4 (1) r/w/sec. 17 (1) (4) of the LA Act, the Hon'ble High Court of Delhi observed that :
''Not much material has been placed before us which could help the court to determine the fair market value of the land in question while the petitioners have placed whole emphasis on the fact that the land sought to be acquired by the respondents vide their notification U/s 4 dt. 28.11.2002 is part of a fully developed commercial area and has great potential and they are entitled to the present market value prevalent in the area at the relevant time. The petitioners rely upon the public auction conducted by the DDA in relation to plot No. 70, Nehru Place, wherein the land was auctioned at a price of Rs.1,91,666/- per sq. mtr. The Hon'ble High Court of Delhi further observed that it was concerned only with the fixation of a fair market price of the land, prima facie. While determining prospective use of the land or its future potential and development by itself, cannot be the only basis for the court to determine the market value of the acquired land. It is for the claimants to prove on record that the land or its surrounding areas have been fully developed at the time of notification. Granting of compensation is a mtter of serious consequence and thus cannot be based upon the element of conjuncture. Reference in this regard can be made to the judgment of the Supreme Court in the case of B.G. Kulkarani Vs Special Land Acqusition Officer JT 1996 (4) SC 220 as well as Trilochan Singh Vs State of Punjab 1995 LACC 283 SC. Normally, the auction by public authorities of fully developed plots cannot be stated to be a fair guiding factor for determining the fair market value of the land sought to be acquired by the Government at a subsequent stage. Of course, location, potential, utility would be the relevant factors which the court upon due proof by the claimant, may take into consideration.
Auction of a developed plot by a public authority may not be a proper guide for determination of such compensation. It will be appropriate to refer to the judgment in the case of Santa (Died) & Ors Vs State of Haryana & Anr 2000 (2) PLR 501 while referring to various judgments of the Supreme Court as well as of that Court, it was held as under:-
''It is settled principle of law that the plot which are developed by the Government or its instrumentalities in the larger public interest after incurring huge expenditure cannot form basis for determining the compensation payable to the land being acquired by the Government for achieving that very public purpose. The cost indicated includes various other ingredients and does not indicate the excessive cost factor of the land price. It was for the claimants to bring appropriate evidence on record for bifurcation of such costing before they could derive any benefit from such documents.
This court has the occasion to discuss the relevancy of such public auctions or allotment of plots by the public bodies in different cases. In the case of State of Haryana and another V.Ram Chander and others, RFA No. 37 of 1996 decided on 13.05.1999 while considering somewhat similar question where auctions were held by HUDA of commercial areas, the Court observed as under:-
''Those instances are to my mind not relevant considerations for determining the fair market value of the acquired land at the time of notification. Varied reasons can be given for rejecting these instances. Firstly, these plots are developed plots on which the Government or HUDA has already spent considerable amount. Secondly, these are commercial sites and can never be equated to the value of huge agricultural land like the land acquired in the present case. Thirdly, these auction prices are not true index of a fair market value of the land at the relevant time because of the element of speculation and unfair competition in such auctions. Fourthly, the auctions have an element of uncertainty and they cannot be equated to a sale deed. It will depend on the terms and conditions of the auction because normally very meager amount in payable at the time of auction and balance is to be paid in instalments. Whether balance amount was paid or not, whether final documents of lease-deed or sale deed were executed in favour of the bidder? Ex. P31 and Ex. P32 are based on such terms only and lastly but not the least these are such small pieces of land that they cannot form a reasonable and fair basis for determination of compensation payable to the claimants. Once this evidence is held to be irrelevant, the compensation cannot be granted on the mere asking of the claimants which they stated in their examination in chief and PW3, PW4 and PW9 respectively.
Again in the case of State of Haryana Vs Rajinder Kumar, RFA No. 2351 of 1998 decided on 03.06.1999 the court held as under:-
''Serious expenditure and efforts are put in by the State or authorities like PUDA before the developed, residential or commercial plots are put to public auction. Cost of land is one of the components of the minimum auction price fixed by the authorities. Auction price is not the price indicative only of the cost of land. It includes various other factors and components in its composition. It is a matter of public knowledge that it includes maintenance, construction and maintenance of roads in times to come, element of interest payable on different heads and other ancillary factors. An auction/bid is primarily is a speculative feature.
The Hon'ble High Court of Delhi in the aforesaid WP ( C) 76-79/2004 held that :
''Thus, we have no hesitation in coming to the conclusion that the auction held by the DDA in regard to plot No. 70 in the year 1995 cannot be the sale criteria for determining the compensation payable to the land owners, prima facie, and at this stage of the proceedings. We would not prefer to rely upon this document as the petitioner can hardly be permitted to take undue advantage of public obligations of the Government and its development policies.'' It was further held by the Hon'ble High Court of Delhi that :
''Admittedly the area has been developed by the DDA as a commercial area. However, under the lay out plan, the area was marked only for public utility services and thus it cannot get any commercial value.'' 15 In the case of H.S.Hyde & Co. (Supra), the petitioners relied upon the plots sold by the DDA situate at Gulabi Bagh, Near Shakti Nagar, Delhi for fixing the market value as on the date of notification u/s 4 of the LA Act. This reference court in the case of H.S.Hyde & Co. (Supra) observed that the said plots are not the adjoining land to the land in question therein. Even otherwise, the commercial rates of a specific piece of land sold through public auction by the Govt., cannot be the basis for determining the fair market value of the land in question therein. In the case of Chet Ram (Supra), the petitioners/ claimants claimed that the acquired land is a part of commercial area. The Hon'ble High Court of Delhi placing reliance upon the judgments of the Hon'ble Supreme Court of India, has held that while determining the prospective use of the land or its future potential and development by itself cannot be the only basis for the court to determine the market value of the acquired land and therefore, granting of compensation is a matter of serious consequence and thus cannot be based upon the element of conjuncture. It was further held by the Hon'ble High Court of Delhi in the aforesaid case that normally, the auction by public authorities of fully developed plots cannot be stated to be a fair guiding factor for determining the fair market value of the land sought to be acquired by the Govt. at a subsequent stage.
Therefore, auction of a developed plot by public authority may not be a proper guide for determination of such compensation. While rejecting these instances of sale of a developed plot by public auction, various reasons have been given by the Hon'ble High Court of Delhi as well as the Hon'ble Supreme Court in various judgments.
16 The petitioners in the case of H.S.Hyde & Co. (Supra) furter claimed that the land use of the area acquired was flatted factories and there are large number of factories as commercial establishment all around the land of the petitioners therein meaning thereby, the acquired land, according to the petitioners thererin, is the commercial land and to prove this fact they produced the witnesses from the Govt. Deptt. PW1 deposed that M/s H.S.Hydes Co. is registered with the department of industries vide the Regd. Certificate dt. 27.08.1973 which was proved as Ex.PW1/A which was again re-issued on 06.07.1981 and the certificate of re-issuing was proved as Ex.PW1/B. In H.S.Hydes Co. case, PW1 in his cross -examination deposed that he has no record of the land use of the land in question as per the master plan for Delhi. However, before registering the industry, the department take into consideration the MCD license, partnership deed and ownership of the machinery. PW2, in H.S.Hyde Co. case during his cross-examination deposed that he does not know the land use of the area. PW3, the AEN, DMRC, in H.S.Hyde Co. case, specifically deposed in his cross-examination that as per the award as well as the master plan, the land use is residential in nature. PW5/ Sh.Rajender, Head Clerk, office of LAC in in H.S.Hyde Co. case also deposed that the Assistant Commissioner, MCD vide letter dt. 07.03.2006 informed that as per the list issued by Central Licensing Cell, Town Hall, both the areas Pul Bangash, Rani Jhansi Road and Roshanara Road Area are local commercial area for issuing of Licence under local commercial area as per rule. PW6, in H.S.Hyde Co. case, proved the application of the petitoiners therein for import and export code number (IEC) as Ex.PW6/1 and copy of the code issued to the petitioners therein as Ex.PW6/2. PW6, in H.S.Hyde Co. case, further deposed in his cross-examination that permission for import and export means IEC code and it is correct that the address of the company is not required for getting the IEC code. PW8/ petitioner no.1, in H.S.Hyde Co. case, in his cross-examination, deposed that the land in question is not a allotted flatted factory area but the land use is itself a flatted factory as per the master plan of MCD. However, PW8 admitted that in the master plan flatted factories are mentioned separately. PW8 further admitted that the property was not purchased from any Govt. Deptt./ DDA. PW10 Patwari from Tehsil Civil Lines, in H.S.Hyde Co. case, produced the original records regarding details of khasra no. 388 min village Delhi-Patti and deposed that the entire land was private land and is recorded as abadi Sahar Delhi out of which area of 6 bighas 13 biswas was acquired vide the award no. 5/DC/N/2001-2002 which was proved as Ex.PW10/1. 17 In this context, whether the land in question may be treated either residential or commercial, a reliance can be placed upon the judgment reported in the case of M.C.Mehta Vs UOI & Ors AIR 2006 SC 1325, it was held by the Hon'ble Supreme Court of India as under :
''For dealing with the question of power of MCD to seal the premises in case of misuser, it is necessary to examine few provisions of the DMC Act. The expression 'building' is defined in Section 2 (3) of the DMC Act as a house, out-house, stable, latrine, urinal, shed, hut, wall (other than a boundary wall) or any other structure, whether of masonry, bricks, wood, mud, metal or other material but does not include any portable shelter.
The expression 'land' as per section 2 (24) includes benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth and rights created by law over any street.
Section 2 (26) defines 'market' as under :
'Sec. 2 (26) - ''market'' includes any place where persons assemble for the sale of, or for the purpose of exposing for sale, meat, fish, fruits, vegetables, animals intended for human food or any other articles of human food whatsoever, with or without the consent of the owner of such place notwithstanding that there may be no common regulation for the concourse of buyers and sellers and whether or not any control is exercised over the business of, or the person frequenting, the market by the owner of the place or by any other person;'' Sec. 2 (34) defines 'Occupier' as under :
Sec.2 (34) ''Occupier'' includes -
(a) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable;
(b) an owner in occupation of, or otherwise using his land or building;
(c ) a rent-free tenant of any land or building;
(d) a licensee in occupation of any land or building; and
(e) any person who is liable to pay to the owner damages for the use and occupation of any land or building;'' U/sec. 2 (59) 'trade premises' means :
''2 (59) - ''trade premises'' means any premises used or intended to be used for carrying on any trade or industry;'' ''Sec. 331 Definition -
(C ) to convert into a dwelling house any building or any part of a building not originally constructed for human habitation or, if originally so constructed, subsequently appropriated for any other purpose;
(h) to convert into a stall, shop, warehouse or godown, stable, factory or garage any building not originally constructed for use as such or which was not so used before the change;
(j) to convert into or use as a dwelling house any building which has been discontinued as or appropriated for any purpose other than, a dwelling house.'' Clause (c), (h) & (j) are very significant. These clauses bring in the concept of user of a building.
It was further held by the Hon'ble Supreme Court that :
''in respect of an area where the notified/ specified land use is residential, sanction for erection of a commercial building cannot be accorded, as is apparent from sub-section (2) of Section 336.
Section 347 contains a specific prohibition for change of the use of any land or building. The said section reads as under :
''Sec. 347 Restrictions on uses of buildings. - No person shall, without the written permission of the Commissioner, or otherwise than in conformity with the conditions, if any, of such permission -
(a) use or permit to be used for human habitation any part of a building not originally erected or authorized to be used for that purpose or not used for that purpose before any alteration has been made therein by any work executed in accordance with the provisions of this Act and the bye-laws made thereunder:
(b) change or allow the change of the use of any land or building;
(c) convert or allow the conversion of one kind of tenement into another kind.'' A bare perusal of building bye-laws shows how relevant is the user, commercial or residential, and the large impact of occupation load on various facilities including water, sanitation and drainage.
Provision for household industries in residential areas does not mean converting residential houses in the commercial shops. It only means permitting activities of household industry in a part of a residential property. It does not mean that residential properties can be used for commercial and trading activities and sale and purchase of goods. Master Plan contemplates shops in District Centres, community Centres, Local Shopping Centres etc. and not in residential areas.
In respect of planning, reference can usefully be made to Section 313 of the DMC Act as well. The said section provides for the requirement of layout plan of the land. It, inter alia, provides that before utilizing, selling or otherwise dealing with any land U/sec. 312, the owner thereof shall send to the Commissioner a written application with a layout plan of the land showing various particulars including the purpose for which the building will be used. For breach of Section 313, action can be taken U/sec. 314. It has rightly not been disputed by any counsel that neither layout plan, nor the building plan, can be sanctioned by MCD except in the manner and for the purpose provided in the Master Plan. If in the master plan, the land use is residential, MCD cannot sanction the plan for any purpose other than residential.
Building Bye-Laws for the Union Territory of Delhi, 1983, in particular Bye-Law Nos. 2.17, defining the expressions 'Conversion' and ''To Erect' which reads as under:
''2.17. Conversion - The change of an occupancy to another occupancy or change in building structure or part thereof resulting into change of space or use requiring additional occupancy certificates''.
The introduction of the ad hoc Registration Scheme would not only regularize the illegalities but further encourage more illegalities to take place by sending a wrong message underlying the press release. This ad hoc scheme has been stayed by this Court.
Mr. Ashwini Kumar, learned Senior Advocate appearing for MCD, also contended that since there is a large scale misuse of residential premises for commercial purposes, it is a physical impossibility to remove the misuser. The contention deserves outright rejection.''
18 It is pertinent to mention here while considering the nature and use of the acquired land that the Hon'ble Supreme Court of India in the aforesaid case of M.C.Mehta Vs UOI (Supra) has held that the provision for household industries in residential areas does not mean converting residential houses in the commercial shops. It only means permitting activities of household industry in a part of a residential property. It does not mean that residential properties can be used for commercial and trading activities and sale and purchase of goods. Master Plan contemplates shops in District Centres, community Centres, Local Shopping Centres etc. and not in residential areas. It was further held by the Hon'ble Supreme Court of India in the aforesaid case that it has rightly not been disputed by any counsel that neither layout plan, nor the building plan, can be sanctioned by MCD except in the manner and for the purpose provided in the Master Plan. If in the master plan, the land use is residential, MCD cannot sanction the plan for any purpose other than residential. Therefore, misuse of residential premises for commercial purposes has outrightly been rejected by the Hon'ble Supreme Court. Further, adhoc registration schemes have also been stayed by the Hon'ble Supreme Court. In the present reference, perusal of the award Ex.R-1 by which the land of the petitioner was acquired reveals that the petitioners in support of their claim have not filed any document except agreement to seel, GPA & WILL before the LAC. PW3, in H.S.Hyde & Co. case, who was the witness produced by the petitioners therein admitted that as per award as well as the master plan, the land use is residential in nature. PW10 Patwari Tehsil Civil Lines, District North, Delhi, another witness of the petitioners in H.S.Hyde & Co. case also specifically deposed that the entire land was the private land and is recorded as abadi Sahar Delhi out of which the area of 6 bighas and 13 biswas was acquired vide the award no.5/DC/N/2001-2002. In the present reference, PW3 in his affidavit has deposed that the petitioner is registered with the sales tax local as well as central sales tax and was manufacturing and selling electrical goods. PW3 has exhibited in his affidavit the electrical bills as Ex.PW3/1, copy of central sales tax as Ex.PW3/2, copy of the registration of sales tax as Ex.PW3/3, copy of Delhi sales Tax form-37 as Ex.PW3/4, copy of licence from Bureau of Indian Standard as Ex.PW3/5, copy of old certificate of Central Sales Tax as Ex.PW3/6, copy of old certificate of Delhi Sales Tax as Ex.PW3/7 & copy of old form No.37 as Ex.PW3/8. PW3, in his cross- examination, has deposed that he has not filed any copy of the master plan showing the property in question which is commercial. It is crystal clear from the evidence led by the petitioner herein that the petitioner has not been able to prove by the documentary evidence that the acquired land was the commercial land allotted by the Govt. as per the master plan. The commercial and business activities on the acquired land does not change the use of the land from residential to commercial. In the present reference, the land in question is also similarly situate as the land situate in the case of H.S.Hyde & Co. (Supra). The respondents, in the present reference, have relied upon the letter dt. 28.12.2006 issued by Sh.S.P.Pathak, Director (AP) II addressed to the DMRC regarding land use of 425 sq. mtr. of land near Pul Bungash Metro Station which is marked as Mark-C wherein it is stated that ''with reference to above you have requested to provide the land use of the land under reference. This has been examined and it has been reported that land use of the area under reference is residential''. Therefore, in view of the decision made by this reference court in H.S.Hyde & Co. (Supra) and also the evidence led by the parties in the present reference, the case of the petitioner on the aspect of use of land is squarely covered in the aforesaid case of M.C.Mehta Vs UOI (Supra). Thus, I have no hesitation to hold that the petitioner herein is not entitled to the commercial rates as fixed by the L&DO as per their schedule of market rate vide letter dt. 16.04.1999 or even otherwise.
19 The counsel for the respondents have relied upon the award No.5/DC/N/2001-2002 of the area of Pul Bangash, Delhi accounced on 20.06.2001 as Ex.R-1, the copies of the sale deed No.2046 executed on 13.03.1995 & registered on 13.03.1995 as Mark-A (certified copy of the same has already been filed in LAC No.76/1/06 title Sheela Rani, award No.3/1999-2000 of village Delhi-Patti on 12.09.2006) and copy of the sale deed No.7421 executed on 14.01.1997 & registered on 14.01.1997 as Mark-B (certified copy of the same has already been filed in LAC No.76/1/06 title Sheela Rani, Award No.3/1999-2000 of village Delhi-Patti on 12.09.2006). In Ex.R-1, the LAC has specifically stated that the confirming land use of the area under the present acquisition is residential as per master plan. The sale deeds Ex.R-2 and Ex.R-3 in the aforesaid LAC No.56/1/06 executed long back in the year 1959 and 1958 respectively which are not relevant for considering and determining the market value of the acquired land as on 08.08.2000. Here, I would like to rely upon the judgment dt. 29.04.1997 reported in the case of Special Deputy Collector & Anr Vs Kurra Sambasiva Rao & Ors (1997) 6 SCC 41, it was held by the Hon'ble Supreme Court of India that marking of certified copies of sale deeds per se not admissible in evidence unless duly proved by witnesses. Therefore, the aforesaid sale deeds relied upon by the counsel for the respondents are not applicable and cannot be considered as the basis for fixing the fair market value of the land in question on the date of notification u/s 4 of the LA Act. 20 Vide the notification dt.12.06.1997 u/s 4 of the LA Act followed by declaration u/s 6 on 28.07.1997 pertaining to the land situate at Ram Bagh area forming part of Delhi village/ Delhi Patti, the LAC vide award no.3/1999-2000 assessed the market value of the acquired land @ Rs.1,247/- per sq. mtr. The LAC while assessing the fair market value of the acquired land vide the said award no.3/1999-2000 also considered the method of using the 'Schedule of Market Rates', issued by the Ministry of Urban Affairs & Employment, Govt. of India, for land transfers in Delhi and as per the schedule, the prices for land transfer for the corresponding period i.e 01.04.1996 till 31.03.1998 comes to Rs.6,300/- per sq. mtr. for residential areas and Rs.12,600/- per sq. mtr for commercial areas but the LAC considered the indicative price as per the schedule of market rate on a very higher side and assessed the market value at Rs.1,247/- per sq. mtr on the basis of sale prices. Feeling dissatisfied with the quantum of compensation awarded by the LAC, the petitioners therein filed reference petitions U/s 18 of the LA Act for proper adjudication/market value which were sent to the reference court. The reference court considered that the LAC, in the award no.3/1999-2000, relied upon the sale deeds for fixing the market value without giving any justified or cogent reasons for not considering the indicative rates i.e. schedule of market rates of the Govt. Whereas, the LAC in the present award has relied upon the schedule of market rates of the Govt. while fixing the market value of the acquired land as on 08.08.2000 of the same area which are situated at Pul Bangash - Roshanara Road area forming part of village Delhi -Patti, Delhi. In the present reference, the LAC has assessed the market value of the acquired land at Rs.6930/- per sq. mtr. on the date of notification u/sec. 4 of the LA Act i.e. 08.08.2000 on the basis of the indicative schedule of market rates notified by the Govt. It has been held in the catena of judgments of the Hon'ble High Court of Delhi and the Hon'ble Supreme Court of India that there has been steep rise in prices of land throughout national Capital Territory of Delhi and while fixing the fair market value, it has to be assessed whether the lands in acquisition are possessed of potential value on the date of notification. Further, the Hon'ble Supreme Court of India and the Hon'ble High Court of India have also held in various judgments that escalation of prices given at 12% per year is proper. In this context, I would place reliance upon the judgment reported in Rameshwar Solanki Vs UOI AIR 1995 Delhi 358, it was held that past practice of High Court to give escalation at rate of Rs.1000/- per bigha discarded and escalation given at 12% per year by High Court in earlier decision was proper. In Municipal Committee, Bhatinda & Ors Vs Balwant Singh & Ors (1995) 5 SCC 433, it was held by the Hon'ble Supreme Court that agricultural lands situated with the municipal units and near to the built up area are possessed of potential value. In Vijay Singh & Ors Vs UOI & Ors 111 (2004) DLT 751 (DB), it was held by the Hon'ble High Court of Delhi that there exists no hard and fast rule or strait jacket formula having firm legal backing for computing rate of escalation in price of acquired land and exercise depends on various factors viz. period for which escalation required to be computed, general rate of growth of money during that period. It was further held by the Hon'ble High Court of Delhi that in case at hand relevant period is of about 5 years from 1979-1984 and rate of 12% per annum would form just and reasonable basis for computing escalation during this period. 21 This reference court, while considering and assessing the potential, nature & location of the acquired land vide award no.3/1999-2000 fixed the market value at Rs.6,300/- per sq. mtr. on the date of notification u/s 4 of the LA Act i.e. 12.06.1997. The land in question acquired vide the notification dt.08.08.2000 u/s 4 of the LA Act is also situate and forming part of village Delhi- Patti, Delhi as the land acquired vide the award no.3/1999-2000. Between the aforesaid two awards i.e. award no.3/1999-2000 and 5/DC/N/2001-2002, relevant period is of about 3 years from 1997 to 2000. The reference court has assessed Rs.6,300/- per sq. mtr. market value of the acquired land as on 12.06.1997 vide award no.3/1999-2000 and the LAC, vide award no.5/DC/N/2001-2002 has assessed Rs.6,930/- per sq. mtr of the acquired land as on 08.08.2000. There is a difference of 3 years in the said both notifications dt. 12.06.1997 & 08.08.2000 and escalation in prices at Rs.630/- i.e. (Rs.6,930 - Rs.6,300 = Rs.630/-) for three years of the lands situate in the same area would not be just & reasonable. Therefore, relying upon the aforesaid judgments of the Hon'ble Supreme Court of India & the Hon'ble High Court of Delhi, adding escalation in price at the rate of 12% per annum would be the reasonable basis for assessing the market value of the land in question over the rate of Rs.6,300/- per sq. mtr. till the date of acquisition of the land in question. Further, the area under acquisition has been found to be in a fast developing part of a municipal town and development activity was in progress. Therefore, deduction towards development costs to the market value of the acquired land would not be justified. In this context, I would further place reliance upon the judgment dt. 26.09.1996 passed by the Hon'ble High Court of Delhi in RFA No. 554 of 1992 in the case of Dharamvir & Ors Vs UOI, it was held that acquired land was surrounded by developed area which had already roads and railway line, therefore, there was no justification for deduction towards development cost to the extent of 30% or to the extent of 25%. In the case of Anil Kumar Sharma Vs UOI 86 (2000) DLT 825 (DB), it was held by the Hon'ble High Court of Delhi that acquired land was already developed and possessed of amenities. No reason to hold that fair market value of the land in vicinity as on the date of notification for similar plots would less than Rs.800/- per sq. mtr or less than Rs.345/- sq. yard. No scope for further deductions. Thus, I have no hesitation to hold that it would meet ends of justice if the fair market value of the acquired land in the present reference is assessed @ Rs.8,568/- per sq. mtr. on the date of its acquisition as on 08.08.2000.
22 Now, let us examine whether the petitioner is entitled to the compensation for dismentalling, shifting, storage, re-fixing of machineries and also the structures as per the valuation report filed by the petitioner. PW3 in his affidavit has exhibited the valuer report as Ex.PW3/9, original site plan as Ex.PW3/10, original calculation report of profit & loss as mark-A and the details calculation prepared by Chartered Accountant for permanent loss of earning as Ex.PW3/11. PW3 in his cross examination has deposed that it is correct that Ex.PW3/10 is not approved by the competent authority but it is signed by the approved valuer. PW3 has further deposed that he does not have the personal knowledge of the valuation report as he is not a technical person and approved valuer. The petitioner has not produced & proved the aforesaid documents i.e valuation report, calculation report of profit & loss, permanent loss of earnings, etc. by the approved valuer as well as the Chartered Accountant. The petitioner has failed to prove on record that she has suffered with the loss of dismentalling, shifting, storage, re-fixing of machineries and also the structures. Thus, I hold that the petitioner is not entitled for loss of dismentalling, shifting, storage, re-fixing of machineries and also the structures as claimed in the reference petition. These issues are answered accordingly. RELIEF 23 In view of my findings on issue no.1, the market value of the land of the petitioner situate at Pul Bangash -Roshnara Road area forming part of village Delhi
- Patti acquired vide the notification dt. 08.08.2000 U/sec. 4 of the LA Act is fixed @ Rs.8,568/- per sq. mtr. as per the details mentioned in the statement u/sec.19 of the LA Act. Besides it, the petitioner shall also be entitled to get additional amount u/sec. 23 (1A) of LA Act @ 12% per annum on the market value from the date of notification u/sec. 4 of the LA Act till the date of award or dispossession, whichever is earlier. The petitioner shall also get solatium u/sec. 23 (2) of LA Act @ 30% on the enhanced amount of compensation and interest u/sec. 28 of LA Act @ 9% per annum for the first year from the date of dispossession and @ 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. The petitioner is further entitled to interest on solatium and additional amount in terms of judgment of Hon'ble Apex court titled Sunder Vs UOI reported in DLT 2001 (SC)
569. This reference is answered accordingly.
A copy of this award be sent to the concerned LAC to make the payment of the enhanced amount of compensation to the petitioner within three months from today. While making the calculations due regard shall be made to deduct the amount initially arrived at by the LAC to avoid any duplication. There shall be no order as to costs. Decree sheet be prepared accordingly. The file be consigned to Record Room.
Announced in open court ( YASHWANT KUMAR )
on 29.01.2007 ADDL. DISTRICT JUDGE (LAC)
DELHI
LAC No. 38/1/06
29.01.2007
Present- None
Vide separate award dictated and announced in the open court, this reference is answered accordingly.
A copy of this award be sent to the concerned LAC to make the payment of the enhanced amount of compensation to the petitioner within three months from today. While making the calculations due regard shall be made to deduct the amount initially arrived at by the LAC to avoid any duplication. There shall be no order as to costs. Decree sheet be prepared accordingly. The file be consigned to Record Room.
( YASHWANT KUMAR ) ADJ/LAC/DELHI/29.01.2007