Delhi District Court
Shri Karan Singh vs Union Of India on 27 September, 2011
IN THE COURT OF SHRI ARUN BHARDWAJ: ADJ:
SOUTH WEST: NEW DELHI
LAC No. 38/11/06
In the matter of :
1. Shri Karan Singh,
2. Shri Satya Prakash,
3. Shri Rajinder Singh,
All sons of Late Shri Ram Saroop,
R/o RZ326/299, Gitanjali Park,
Gali No. 5, West Sagarpur,
New Delhi - 110 046.
... Petitioners
Versus
1. Union of India
Through Land Acquisition Collector,
District SouthWest,
Kapashera, New Delhi.
2. Delhi Development Authority,
Through its ViceChairman,
Vikas Sadan, INA Market,
New Delhi. ... Respondents
Award No. : 2/0607
Village : Nangal Raya
Filed on : 04.10.2006
Reserved on : 26.09.2011
Decided on : 27.09.2011
LAC No. 38/11/06 Page 1/30
JUDGMENT:
1. This is a reference under Section 18 of Land Acquisition Act, 1894.
2. Vide Award No. 2/200607, land comprising in Kh. No. 270/1 measuring 3 biswa was acquired for the Planned Development of Delhi.
3. Notifications under Section 4, 6 and 17 (1) of the Act were issued on 05.05.2006 and 09.05.2006 respectively.
4. LAC, relying upon three sale deeds determined market value of the land @ Rs. 960/ per sq. yds. As possession of the land was taken on 26.08.2000 i.e. 68 months before the date of notification under Section 4 of L.A. Act, the Collector also awarded rent / damages Rs. 40,800/. So far as compensation for structures is concerned, no relief was given to the petitioners for want of any evidence for structures.
5. Petitioners have filed this reference under Section 18 of L.A. Act against the award in question and have prayed compensation @ Rs. 50,000/ per sq. yds., Rs. 2,00,000/ as rent and Rs. 15,00,000/ for structures.
6. Petitioners have stated in the claim petition that the property measuring 174 sq. yds. had 9 rooms, 2 bathrooms, 2 latrines and 1 kitchen. This property was demolished by DDA without its LAC No. 38/11/06 Page 2/30 acquisition and transferred to Department of Delhi Administration.
7. Father of the petitioners had filed a writ petition before the Hon'ble High Court of Delhi being Civil Writ Petition No. 5954/2000 titled as Ram Saroop vs. Government of NCT of Delhi and Ors. This writ petition was decided on 02.05.2006. The Hon'ble High Court directed that damages be paid to the petitioners from the date of taking over possession till the date of payment along with bank rate interest, besides market value.
8. The contention of the petitioners is that the land which has been acquired is not 150 sq. yds. but is 174 sq. yds. The property in question had electricity, water and sewer connections. Petitioners claim that they were also paying property tax. According to petitioners, the value of structures which was first class construction, was not less than Rs. 15,00,000/.
9. Petitioners stated that the Collector has not examined whether the sale instances mentioned in the award are genuine sale transactions between a willing buyer and willing seller. Petitioners have also stated that the Collector has also ignored that area was urbanized since 1966 and has failed to apply at least lowest market rates for the purpose of charging unearned increase fixed by Government of India, Ministry of Urban Development, Land and Development Office, Nirman Bhawan, New Delhi. LAC No. 38/11/06 Page 3/30
10. Union of India did not file its written statement.
11. The beneficiary, DDA filed its written statement and stated that the LAC while making the award had taken into consideration the market value of the land on the basis of sale deeds of the adjoining lands of the area as well as other documents which were made available and produced before the LAC. It was also stated that the LAC has taken into account facilities available near the land while assessing the compensation and any enhancement of the amount of compensation will not be justified and reference is liable to be dismissed.
12. DDA also took an objection that DLR Act was applicable to the land in question at the time of notification which reduces the market value of the land and therefore the amount awarded by LAC is adequate sufficient just and legal.
13. DDA also took an objection that the petitioners are not owner of the land in question and have no locus standi to file the reference petition.
14. DDA has denied that petitioner is entitled to claim any enhanced compensation for their acquired land or any amount for tubewells and wells with built up boundaries, crops, trees or any other amount towards rehabilitation charges. Therefore, DDA prayed for dismissal of the reference. (References to tubewells, crops etc. in written statement of DDA shows that written statement was prepared LAC No. 38/11/06 Page 4/30 mechanically as it is nobody's case that the land in question had tubewell, crops etc.)
15. On 20.05.2009, following issues were framed: i. Whether the petitioners are entitled to the enhancement of the compensation? If yes, to what amount? OPP.
ii. Whether the LAC has acquired and taken possession of 174 sq. yds. of land and not 0.3 biswas? OPP iii. Relief.
16. Shri Rajender Singh, Petitioner No. 3 entered the witness box as PW1 and stated similar facts in evidence by way of affidavit as already stated in claim petition and exhibited following documents: i. Ex. PW1/1: Sale deed dated 24.09.1962 in favour of grandfather of petitioners.
ii. Ex. PW1/2: Certified copy of writ petition filed before the Hon'ble High Court of Delhi.
iii. Ex. PW1/3: Certified copy of judgment passed by Hon'ble High Court of Delhi.
iv. Ex. PW1/4 to Ex. PW1/10: Electricity bills. v. Ex. PW1/11 to Ex. PW1/14: Water Bills.
17. In his crossexamination, PW1 stated that as proof of construction on land in question he has filed the site plan. He denied the suggestion that only 150 sq. yds. of land was acquired and not 174 sq. yds. He stated that his grandfather had raised the construction on LAC No. 38/11/06 Page 5/30 the said property and he is not aware whether sanction for construction of the house was obtained from the authority. Rest of the suggestions contrary to his case were also denied.
18. PW2 examined by the petitioners was Junior Judicial Assistant from the Hon'ble High Court of Delhi who produced the record of Writ Petition (Civil) No. 5954/2000 titled as Ram Swaroop vs. Government of NCT decided on 02.05.2006. Certified copy of the same was already exhibited as Ex. PW1/2.
19. PW3 examined by the petitioners was Superintendent of Land Development Office who produced schedule of market rates dated 16.04.1999 which were exhibited as Ex. PW3/1 and Ex. PW3/2.
20. PW4 examined by the petitioners was a Clerk from Billing Section of DDA's accounts office who produced average auction rate of the residential plots by the DDA in Janak Puri from the year, 200206 which were exhibited as Ex. PW4/1.
21. PW5 examined by the petitioners was a Clerk from the Office of SubRegistrarII, Kashmere Gate, Delhi who had brought the original record of the sale deed dated 24.09.1962 which was already exhibited as PW1/1.
22. PW6 examined by the petitioners was Halka Patwari of village Nangal Raya who had brought certified copy of Aksizra of village Nangal Raya which was exhibited as Ex.PW6/1. This witness deposed that the distance between Nangal Raya and village Tihar is LAC No. 38/11/06 Page 6/30 less than 2 kms. Village Tihar is touching the boundary of village Nangal Raya and is located on the North West of Village Nangal Raya and on the southern side of village Nangal Raya there is village Sagarpur.
23. PW7 (although again referred as PW6 in the records) was Head Clerk from MCD who stated that due to torrential rain, the summoned records regarding property tax of property in question were got destroyed.
24. On 09.02.2011, learned counsel for Union of India stated that he does not wish to tender any sale deed in evidence but award of the Collector be read in evidence.
25. During arguments, it was argued on behalf of counsel for the petitioners that a reference under Section 18 is not an appeal against the award and the Court cannot take into account the material relied upon by the LAC in his award unless the same material is produced and proved before the Court. In this regard, reliance was placed on Chiman Lal Hargovind Das Appellants v. Special Land Acquisition Officer, Poona and Anr., Respondents : AIR 1988 Supreme Court 1652. Therefore, it was argued by counsel for the petitioners that as sale deeds relied upon by LAC in the award have not been proved in this reference, those sale deeds cannot be looked into for determining the market value of the land in question.
26. At this stage, counsel for Union of India filed LAC No. 38/11/06 Page 7/30 application for additional evidence for reopening of the respondents evidence. For the reasons given in the application, the application was allowed and Union of India was given another opportunity to lead further evidence.
27. Availing this opportunity given to the LAC belatedly, now, counsel for Union of India, proved on record three sale deeds whose details are as under: S. No. Exhibit Date Area Amount Locality
1. RW1/1 13.04.2006 90 sq. yds. Rs. 40,000/ West Sagarpur
2. RW1/2 29.05.2004 126 sq. yds. Rs. 1,00,000/ Nangal Raya
3. RW1/3 03.05.2006 103 sq. yds. Rs. 1,20,000/ Nangal Raya
28. After Union of India was given opportunity to lead additional evidence, petitioners also sought and were given permission to tender in evidence certified copy of Award No. 5/LAC/N/0809 of village Delhi Patti which was exhibited as Ex. P1 and the Delhi Stamp (Prevention of under Valuation of Instruments) Rules, 2007 as Ex. P2.
29. Arguments were addressed by Ms. Sukhda Dhamija, learned counsel for the petitioners and Shri J.R. Mathur, learned counsel for Union of India. DDA was already proceeded ex parte on 23.03.2011.
30. Learned counsel for the petitioners argued that the sale deeds relied upon by the Collector cannot be considered for the purposes of determining the market value of the land in question LAC No. 38/11/06 Page 8/30 because Ex. RW1/1 which is dated 13.04.2006 is showing sale consideration @ Rs. 444/ per sq. yds. However, sale deed Ex. RW1/2 which is dated 29.05.2004 is showing sale consideration at Rs. 793/ per sq. yds. It is contended that it is an admitted fact that prices of immovable properties are rising in Delhi but RW1/1 is showing a negative trend which shows that this sale deed is not a normal sale deed and is result of certain unexplained factors due to which this low sale consideration is shown in the sale deed.
31. Ex. RW1/1 is also assailed on the ground that this sale deed is of Sagarpur whereas the property in question was in Nangal Raya.
32. Ex. RW1/2 is assailed by counsel for the petitioner because as per this sale deed the address of vendor and vendee is the same. It is argued that either it is a nominal sale between relations or is a sale between tenant and landlord and that is why the sale price is so low.
33. Ex. RW1/3 is assailed because it is a sale deed executed by a father in favour of his son. For this reason, it is argued that this is not sale between a willing buyer and a willing seller unaffected by the special needs of a particular purchase.
34. Counsel for the petitioners have also argued that the three sale deeds relied upon by LAC cannot be considered for determining the market value as neither the vendor nor the vendee of LAC No. 38/11/06 Page 9/30 these sale deeds were examined. Reliance is placed on several judgments of Hon'ble Supreme Court. First judgment is Special Dy. Collector and Anr. etc. vs. Kurra Sambasiva Rao and Ors., Civil Appeal No. 37953814 of 1997 dated 29.04.1997 and reported in SUPREME COURT JUDGMENTS ON LAND ACQUISITION (199404) Volume II Page No. 1253. In para 8 of this judgment, it is held as under: "Para 8. The best evidence of the value of property are the sale transactions in respect of the acquired land to which the claimant himself is a party; the time at which the property comes to be sold; the purpose to which it is sold; nature of the consideration; and the manner in which the transaction came to be brought out. They are all relevant factors. In the absence of such a sale deed relating to the acquired land, the sale transaction relating to the neighbouring lands in the vicinity of the acquired land. In that case, the features required to be present are:
it must be within a reasonable time of the date of the notification; it must be a bona fide transaction; it should be a sale of land similar to the land acquired or land adjacent to the land acquired; and it should possess similar advantageous features. These are relevant features to be taken into consideration to prove the market value of the acquired land as on the date of the notification published under Section 4 (1) of the Act. This would be established by examining either the vendor or the vendee. If it is proved that they are not available, the scribe of the document may also be examined in that behalf. Section 51A of the Act only dispenses with the production of the original sale deed and directs to receive certified copy LAC No. 38/11/06 Page 10/30 for the reason that parties to the sale transaction would be reluctant to part with the original sale deed since acquisition proceedings would take long time before award of the compensation attains finality and in the meanwhile the owner of the sale deed is precluded from using the same for other purposes visavis this land. The marking of the certified copy is per se is not admissible in evidence unless it is duly proved and the witnesses, viz. the vendor or the vendee, are examined. This principle has been repeated in a catena of subsequent decisions of this Court."
35. Second judgment relied upon is Kumari Veerain and Ors. vs. State of Andhra Pradesh : SLP No. 4021/1995 dated 28.02.95 reported in SUPREME COURT JUDGMENTS ON LAND ACQUISITION (199404) Page No. 457. In para 5, it is held as under: "Para 5. It is true that the certified copies of the sale deeds are admissible in evidence as secondary evidence under Section 51A of the Act since owners would be reluctant to part with their original sale deeds. But unless either the vendor or the vendee has been examined as witnes to testify not only the consideration paid but also their specific knowledge and the circumstance in which the sale deed came to be executed nearness to the lands etc., the sale deeds cannot be relied on to determine market value of the acquired lands. The true nature and situation of the respective lands are relevant and germane as comparable sales for determination of the compensation and are required to be brought on record LAC No. 38/11/06 Page 11/30 through admissible evidence and tested on the anvil of common experience. Therefore, by mere marking the documents Exs. A3, A4, A8 and A10 by themselves do not amount to proof of the aforementioned factors."
36. Third judgment referred is Union of India etc. vs. Sunil Chandra Saha and Anr. : Civil Appeal No. 5559/94 dated 25.07.95 reported in SUPREME COURT JUDGMENTS ON LAND ACQUISITION (199404) Page No. 541. In para 2, it is held as under: "Para 2. Both the claimants and the Land Acquisition Officer merely marked the sale deeds without examining either the vendor or the vendee to bring on record the circumstance in which the sale deeds came to be executed, the distance of the lands to the acquired lands, the nature of the respective lands and whether they would offer comparable sales to determine just and fair market value to the acquired lands. In the absence of such relevant and material evidence it would be difficult o determine compensation in respect of the acquired lands."
37. Fourth judgment relied upon by petitioners is State of UP and Anr. vs. Rajendra Singh: Civil Appeal No. 2921/96 dated 25.01.96 reported in SUPREME COURT JUDGMENTS ON LAND ACQUISITION (199404) Page No. 779. In para 3, it is held as under: "Para 3. It is further settled law that the sales transactions LAC No. 38/11/06 Page 12/30 filed either in the narration of award or documents, without examination of either the vendee or by the vendor is not evidence."
38. Next reference is made to Meharban & Ors. vs. The State of U.P. and Ors. : Civil Appeal No. 4216/97 dated 30.04.97 reported in SUPREME COURT JUDGMENTS ON LAND ACQUISITION (199404) Page No. 1262. In this judgment, in para 13, it was noted: "Para 13. Since none connected with the sale deeds was examined, the sale deeds are inadmissible in evidence though certified copies marked under Section 51A are available."
39. Lastly, reference is made to A.P. State Road Transport Corporation, Hyderabad represented by Managing Director vs. P.Venkaiah and Ors.: Civil Appeal No. 3404 of 97 dated 28.04.97 reported in SUPREME COURT JUDGMENTS ON LAND ACQUISITION (199404) Volume I Page No. 815 where in para 3, it is held: "Para 3. Acceptance of certified copy of the sale deed under Section 51A relates only to the production of the original sale deeds but it does not dispense with proof of the contents of the documents, relative features visavis 193, the land under acquisition. All is needed to be proved by examining the persons connected with the same and parties to the document."
LAC No. 38/11/06 Page 13/30
40. Further, counsel for the petitioners have argued that in the case of village Mangolpur Khurd and village Mohammed Pur Munirka LAC himself had granted compensation as per schedule of market rates. Reliance is placed on Delhi Development Authority vs. Land Acquisition Collector and Ors. : 130 (2006) Delhi Law Times 1(DB) and Delhi Development Authority vs. Land Acquisition Collector and Ors. : 131(2006) Delhi Law Times 194 (DB).
41. Petitioners have also relied upon the judgment of Hon'ble High Court in the case of Deepak Sachdeva vs. Union of India, L.A. Appeal No. 22/09 dated 22.03.2011 where also market value was determined on the basis of schedule of market rates.
42. Counsel for the petitioners has also relied upon certified copy of award of village Delhi Patti which is Award No. 05/LAC/N/0809 in which LAC himself has relied upon schedule of market rates for determining the market value.
43. Lastly, counsel for the petitioner has strongly relied upon the case titled as Ajay Kumar vs. Government of NCT of Delhi : CWP No. 2109/08 dated 12.05.2011. In this case, Hon'ble High Court had noted that a notification dated 23.02.2011 is issued by the Land and Building Department of Government of Delhi as per which it was notified that minimum rates for valuation of land and LAC No. 38/11/06 Page 14/30 immovable properties (circle rates) shall henceforth be considered by the LAC as one of the factors for determining the compensation of the land under the provisions of the Land Acquisition Act. In this judgment, the Hon'ble High Court of Delhi directed that this notification would apply to acquisition proceedings which were initiated prior to the date of this notification but a reference or appeal is pending before the Competent Courts as such a reference or appeal is in continuation of the acquisition proceedings.
44. Therefore, counsel for the petitioners argued that market value of the land in question be determined with reference to schedule of market rates, Ex. PW3/1. As per this schedule, the comparable area for land in question is Tihar I and II in Zone III West Delhi as per which the price of residential area is Rs. 6,930/ per sq. mtr. Since these schedules are effective from 01.04.1998, counsel for the petitioners argued that yearly enhancement @ 12% be given till 05.05.2006, the date of notification under Section 4 of L.A. Act. As per this calculation, market value would be 12/100 x 6930 x 7 = 5821 + 6930 = Rs. 12,751/ per sq. mtr. which will be 126 x 12751 = Rs. 16,06,626/.
45. In the alternate, it was argued that the circle rates came into force w.e.f. 18.07.2007 and market value be determined on the basis of circle rates.
46. Since there is a time gap between notification under LAC No. 38/11/06 Page 15/30 Section 4 of L.A. Act which is dated 05.05.2006 and coming into force of the circle rates on 18.07.2007, market value be ascertained by reducing the circle rate @ 12% per annum for a period of 14 months. As per this calculation, market value would be 13700x14/100 = 191813700 = Rs. 11,782/ per sq. mtr. which will be 126 x 11782 = Rs. 14,84,532/.
47. On the other hand, learned counsel for Union of India Shri J.R. Mathur placed heavy reliance of Section 51A of the Land Acquisition Act to contend that certified copy of sale deed may be accepted as evidence of the transaction recorded in such documents. Therefore, it was argued that when the sale deeds of the same colony are available there is no need to refer to schedule of market rates or circle rates for determining the market value of the land in question.
48. Issue wise findings are as under:
49. ISSUE NO. 2: Whether the LAC has acquired and taken possession of 174 sq. yds. of land and not 0.3 biswa? Onus of proof of this issue was on the petitioners. It is the case of petitioners that they had purchased 174 sq.yds. of land vide registered sale deed Ex. PW1/1. Entire land was acquired after demolition of the house. Petitioners were not left with possession of 24 sq. yds. of land. Therefore, they are entitled for compensation for 174 sq. yds. of land as against 150 sq. yds. which according to LAC is the acquired land. Petitioners have stated in objections to the statement under Section 19 LAC No. 38/11/06 Page 16/30 of L.A. Act that in revenue records if the land is less than 1/2 biswas i.e. less than 25 sq. yds., the revenue record does not mention exact area. Petitioners have also stated that in the site plan filed on record in CWP No. 5954/2000, area of built up property is correctly mentioned.
50. However, except for a bald statement in claim petition and evidence by way of affidavit, petitioners have not brought on record any evidence to show that the land acquired was not 150 sq. yds. but 174 sq. yds.
51. Petitioners have not proved on record the site plan.
52. Petitioners have themselves stated at page 7 of their writ petition, Ex. PW1/2 that area 03 in Kh. No. 270/1 was pertaining to House No. WZ1391/15 and was mutated in the name of the petitioner.
53. In para 4 of the order dated 02.05.2006, the Hon'ble High Court also noted as under: "Para 4. Undisputed position is that 3 biswa of land comprised in Khasra No. 270/1 belong to the petitioner on which he had a house in the revenue estate of Village Nangal Raya was unacquired. This fact has been admitted by DDA in para 6 of the counter affidavit. Possession was taken over by force and house was demolished."
54. Therefore, petitioners have themselves stated that their house was over 3 biswa of land and this admitted fact is recorded in the order of Hon'ble High Court also. In absence of any other evidence LAC No. 38/11/06 Page 17/30 to the contrary, this issue is decided against petitioners and in favour of respondents holding that only 3 biswa of land belong to petitioners was acquired and acquired land was not 174 sq. yds.
55. ISSUE NO. 1: Whether the petitioners are entitled to the enhancement of compensation, if yes, to what amount?
56. This issue includes (i) What is the market value of the land in question, (ii) What is the rent payable to the petitioners w.e.f. 26.08.2000 to 05.05.2006 and (iii) What are the damages payable to the petitioners towards demolition of their house / structures.
57. Compensation for demolition of house/structures : Perusal of record shows that the grandfather of petitioners had purchased 174 sq. yds. of land vide Ex. PW1/2 which is sale deed dated 24.09.1962. At that time, it was a vacant piece of land. However, petitioners claim that a house was constructed on this piece of land. To prove this, petitioners rely upon Ex. PW1/4 to Ex. PW1/10 which are electricity bills and Ex. PW1/11 to Ex. PW1/14 which are water bills. However, the extent of construction and the year of construction are not forthcoming from the records. How much was the covered area is no where mentioned.
58. This property of the petitioners was demolished illegally by DDA on 21.08.2000. The DDA took over possession of the property without acquiring the same.
LAC No. 38/11/06 Page 18/30
59. Petitioners were constrained to file a writ petition before the Hon'ble High Court which was decided on 02.05.2006 with following directions: "10. I accordingly dispose of the writ petition, issuing a conditional mandamus as follows: 'In case a notification under Section 4 of the Land Acquisition Act followed by notification dispensing with enquiry under Section 5(A) and a declaration under Section 6 of the Land Acquisition Act is issued within two weeks from today, Land Acquisition Collector would proceed under Section 9 of the Land Acquisition Act and would publish his award within a period of two months thereafter. While publishing the award, Land Acquisition Collector would take note of the law laid down in R.L. Jain's case (supra). Compensation assessed would be paid to the petitioner as also rent or damages payable for the period prior to Section 4 Notification during which petitioner remained out of possession. This would be determined by the Land Acquisition Collector in terms of decision in R.L. Jain's case (supra). In case Section 4 Notification is not issued within two weeks from today, possession would be restored to the petitioner within next 48 hours. In said eventuality, petitioner would be free to resume possession and for which SHO of local Police Station will render all assistant to the petitioner. In such eventuality, it would be open to the petitioner to file a civil suit for damages for unauthorized occupation by respondents for the period respondents remained in possession of the writ land as also for destruction of his home.
LAC No. 38/11/06 Page 19/30
(ii) I impose costs of Rs. 25,000/ against the Secretary, (L.A), Land & Building Department, Govt. of NCT of Delhi. This cost would be paid by Govt. of NCT of Delhi to the petitioner and would be recovered from the salary of the Secretary, (L.A.), Land & Building Department, Govt. of NCT of Delhi. I further direct that in the service file of the Secretary, (L.A.), Land & Building Department, Govt. of NCT of Delhi, a copy of the present decision would be placed with an entry in the service file that this Court has adversely opined upon the working of Secretary, (L.A.), Land & Building Department, Govt. of NCT of Delhi.
(iii) Cost would be paid by respondent No. 1 within 4 weeks from todays.
11. Dasti on payment of usual charges."
60. The LAC while passing the award rejected the claim of Rs. 15,00,000/ as raised by the petitioners towards structures with following reasoning: "In order to examine the claim for damages / structures the documents filed by the claimants were examined. They have filed a copy of sale deed of the property made in the year 1962 in favour of Shri Ram Narain S/o Shri Bhagwan Singh, copy of electricity bill, mutation papers of MCD and a site plan of the property. The claimants did not file any document regarding the structure existing on the land and no detail of construction made over the property was furnished. They did not file any sanction plan or any other paper concerning proof of expenditure of Rs. 15,00,000/ as mentioned in their claim dated LAC No. 38/11/06 Page 20/30 15.05.2006. They also did not file documentary or other proof for loss of Rs. 2,00,000/ to the house hold and other goods. Therefore, in the present case, landowners have not submitted any sanctioned plan from any authority nor any permission from Govt./ local body etc. have been placed on record. Even no proof related to approval of building is received so far. According to the present policy of the Govt. circulated by Secretary, Land & Building Department, GNCT of Delhi vide circular No. F11(56)/2001/L&B/LA/2335257 dated 09.01.2004 and again vide F1/26/88/L&B/WC dated 12.05.2006, no compensation is payable for the unauthorized structures which have been built without any sanction plan. The Land Acquisition Act 1894, Section 24 clause 8 also lays down the following: Matters to be neglected in determining the compensation "eighty, any increase o the value of the land on account of its being put to any use which is forbidden by law or opposed to public policy." In absence of documentary or any other proof, the claims for structure / damages cannot be considered."
61. In this reference, except for making a bald statement that petitioners property comprised of 9 rooms, 2 bathrooms, 2 latrines and 1 kitchen, there is no evidence to assess any compensation for structures. Petitioners have contended that the value of the structures which was first class construction was not less than Rs.15 lacs.
62. In the evidence, petitioners have remained contended by merely marking photocopy of site plan as Mark A. Nothing is LAC No. 38/11/06 Page 21/30 available on record to show the extent of construction, year of construction and cost of construction. Although petitioners may not have sanctioned plans and completion certificate if the house was constructed before urbanization of area but the petitioners were expected to bring on record evidence of their construction. There is no report of any valuer estimating value of construction. There is no evidence of any independent witness regarding existence of construction, year of construction and quality of construction. The mere fact that the property was having electricity, water and sewer connection cannot enable this Court to assess the quantum of damages for demolition of the house. Moreover, from electricity bills Ex. PW1/410 and water bills Ex. PW1/11 to 14 only Municipal Number of the house is known but those bills do not show that the property was in Kh. No. 270/1 which is the property in question.
63. Resultantly, no relief can be given to the petitioners visavis damages for demolition of their house. The claim of petitioners for Rs. 15 lacs for damages for demolition of their house is therefore, rejected.
64. Market value of the land in question: LAC has determined market value of the land in question of the basis of three sale deeds Ex. RW1/13. Counsel for LAC summoned the records from the office of SubRegistrar for the purposes of exhibiting the three sale deeds but did not examine vendor or vendee of any of the LAC No. 38/11/06 Page 22/30 three sale deeds. In the case of Lal Chand vs. Union of India & Ors. :
163 (2009) Delhi Law Time 299 (SC), the Hon'ble Supreme Court has held that:
29. There would be lesser likelihood of rejection of a sale deed exhibited to prove the market value, if some witness speaks about the property which is the subject matter of the exemplar sale deed and explains its situation, potential, as also about the similarities or dissimilarities with the acquired land. The distance between the two properties, the nature and situation of the property, proximity to the village or a road and several other factor may all be relevant in determining the market value. Mere production of some exemplar deeds without 'connecting' the subject matter of the instrument, to the acquired lands will be of little assistance in determining the market value. Section 51A of the LA Act only exempts the production of the original sale deed and examination of the vendor or vendee.
65. Counsel for the petitioners has rightly raised doubts about the credibility of the three sale deeds relied upon by the LAC inasmuch as Ex. RW1/1 is showing a negative trend in the sale consideration when compared to the sale consideration of two years prior to it which cannot be true as there is increase in price of immovable property in Delhi.
66. Ex. RW1/2 is between a vendor and vendee where address of the two is the same. Counsel for petitioners has rightly raised a doubt that either this sale transaction is between relations or LAC No. 38/11/06 Page 23/30 between landlord and tenant that is why the address of vendor and vendee is the same. In the case of Viluben Jhalejar Contractor vs. State of Gujarat : (2005) 4 SCC 789, it is held that "It is beyond any Cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in the possession and in enjoyment in the property and in cases where he is not".
67. Lastly, Ex. RW1/3 is between father and son. Therefore, none of the sale deeds can be taken into consideration for determination of market value in this case.
68. Counsel for the petitioners has relied upon the order of Hon'ble High Court in the case of Ajay Kumar. Notification extracted in that order is as under: "Government of National Capital Territory of Delhi, Land & Building Department, B Block, Vikas Bhawan, New Delhi - 110 092 No. F.9(20)/80/L&B/L.A/15346 dated 23.02.2011 NOTIFICATION No. F.9(20)/80/L&B/L.A., The Government of National Capital Territory of Delhi is pleased to notify that the minimum rates for valuation of land and immovable properties (circle rates) shall henceforth be considered by the Land Acquisition Collector as one of the factors for determining the compensation of land under the provisions of the Land Acquisition Act, 1894 (1 of 1894). The Land Acquisition Collector may, by recording LAC No. 38/11/06 Page 24/30 reasons in writing, determine the compensation based on other factors, if he is satisfied that circle rates are not serving as an effective factor for determining the compensation of land acquired through award under the said Act.
BY ORDER AND IN THE NAME OF THE LIEUTENANT GOVERNOR OF THE NATIONAL CAPITAL TERRITORY OF DELHI.
(Vinay Kumar) Addl. Secretary (L&B)"
69. That this notification is applicable to the reference in hand is clear from following observations of the Hon'ble High Court: "We may note that the notification uses the word 'henceforth' and thus according to us it would naturally apply to all acquisition proceeding either made after this order or where acquisition proceedings are prior to the date of this notification but a reference or appeal is pending before the competent courts as such a reference or appeal is in continuation of the acquisition proceedings."
70. Preference will be given for determining market value in this case upon circle rates than schedule of market rates (i) because it is the mandate of Hon'ble High Court in order noted above (ii) Schedule of market rates were prepared w.e.f. 1998 and are 7 years old when compared to date of notification under Section 4 of Act which is 05.05.2006. On the other hand, circle rates came into force w.e.f. 18.07.2007 and by reducing the value of minimum rates @ 12% LAC No. 38/11/06 Page 25/30 per annum for a period of 14 months, more realistic rates can be ascertained than by giving escalation to schedule of market rates for 7 years i.e. from 01.04.98 to 05.05.06.
71. Resultantly, market value of land in question is determined @ of Rs. 11,782 per sq. mtr. and total compensation payable would be Rs. 14,84,532/.
72. Compensation for Rent: Claim for rent payable to petitioners can be agitated in present proceedings is evident from RL Jain (D) by LRs vs. DDA & Ors. : JT 2004 (3) SC 272 wherein para 18, it is held as under: "Para 18. In a case where the land owner is dispossessed prior to the issuance of preliminary notification under Section 4(1) of the Act the government merely takes possession of the land but the title thereof continues to vest with the land owner. It is fully open for the land owner to recover the possession of his land by taking appropriate legal proceedings. He is thereof only entitled to get rent or damages for use and occupation for the period the government retains possession of the property. Where possession is taken prior to the issuance of the preliminary notification, in our opinion, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the land owner is entitled while determining the compensation amount payable to the land owner for the acquisition of the property. The provisions of Section 48 of the Act lend support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank LAC No. 38/11/06 Page 26/30 rate maybe awarded."
73. After having decided the market value on the basis of three sale deeds Ex. RW1/13 @ Rs. 960/ per sq. yds., the Collector determined the rent @ Rs. 600/ per month by giving following reasoning: "As per the authoritative pronouncement of the Hon'ble Supreme Court to assess the market value of the land on the basis of the rent multiplier of 20 years can be applied on the annual rent of the land. In the present case, the market value of the land is available, which is assessed in the present case at Rs. 1,44,000/. In order to assess the rent of the land it will be proper to adopt the market value of the land for rent, which is worked out to app. Rs. 7200/ per year or Rs. 600/ per month or Rs. 40,800/ for the period of 68 months. Therefore, following the above method, I assess the market rent of the land for the relevant period, i.e. 68 months at Rs. 40,800/ or annually Rs. 7200/ or Rs. 600/ per month."
74. When method followed by LAC for determining the rent is taken into consideration, the rent payable in the light of market value being Rs. 14,84,532/ would be Rs. 4,20,617 (Rs. 14,84,532/20 = Rs. 74,226/12 = 6185 x 68 = Rs. 4,20,617/).
75. However, in this claim petition, the petitioners have claimed rent Rs. 2,00,000/. Relief for rent cannot be given more than the rent prayed by the petitioners themselves.
76. Section 25 of L.A. Act before and after amendment LAC No. 38/11/06 Page 27/30 may also be referred to. As per original Section 25 "When the applicant had made a claim to compensation pursuant to any notices given under Section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under Section 11. Other two SubSections need not be referred to. By the Act of 68 of 1984 Section 25 was substituted by the new Section 25 which reads as under: "The amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11."
77. The effect of amendment in Section 25 of the Act was considered by full Court in Special Land Acquisition Officer vs. Kallangouda and others reported in AIR 1994 Karnataka 112 as under: "The above provision does not either by implication or explicitly limit the compensation amount that could be claimed by a claimant. The Section on the other hand make it plain that under no circumstances, the award made by the Court should be less than the amount awarded by the Collector. The only limitation on the power of the Court in awarding compensation appears to be that the Court cannot award a compensation lower than the one awarded by LAO. By implication it means that the Court can award higher compensation than what was awarded by the LAO. Significantly, the Section remains untrammeled by any conditions enjoining the making of claim higher than what was sought for before LAC No. 38/11/06 Page 28/30 the LAO. In other words, the Section does not forge a connecting link between the claim made before the LAO and a claim made before the Court. The result is the claimant will be free to claim any amount before the Court as compensation and this liberty to claim any amount in Court remains totally uninhibited by any claim made before the LAO even if there is a great disparity between the two claims that is the one made before the LAO and one made before the Court. We must emphasize here that the Section itself being silent about any barriers that either prohibit making of a higher claim before the Court visavis the claim made before the LAO, there is no need at all for claimant to offer any explanation whatsoever as to why he made a lower claim before the LAO while hiking it up before the Court. The law does not enjoin any such explanation."
78. Therefore, although a petitioner can claim more compensation than claimed by him before the Collector but the reference Court cannot grant him higher compensation than claimed by the petitioner.
79. Therefore, this issue is answered holding that the compensation payable for rent would be Rs. 2,00,000/.
80. ISSUE NO. 3: Relief: i. Petitioners are entitled to receive compensation @ Rs. 11,782/ per sq. mtr. for 150 sq. yds. (or 126 sq. mtrs.) of acquired land.
ii. Petitioners are entitled to receive additional LAC No. 38/11/06 Page 29/30 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 which in this peculiar case would be 09.05.2006 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.
vi. Petitioners are entitled to claim of Rs. 2,00,000/ towards rent for 68 months with interest @ 6% per annum from the date of demolition i.e. 26.08.2000 till payment.
vii. Claim of petitioners for structures is rejected.
81. The reference is answered accordingly. Let a copy of the same be sent to the LAC(SW) for information and necessary action. Let balance compensation be calculated and disbursed to petitioners after deducting compensation already paid. Decree be prepared in terms of judgment and file be consigned to record room. Announced in the open Court on the 27th day of September, 2011 (ARUN BHARDWAJ) ADDL. DISTRICT JUDGE DWARKA COURTS: NEW DELHI LAC No. 38/11/06 Page 30/30