Delhi District Court
Shri Rajesh Malik vs Union Of India on 13 May, 2011
IN THE COURT OF SHRI ARUN BHARDWAJ, ADJ:
SOUTH WEST: NEW DELHI
LAC No. 124/09/05
In the matter of :
Shri Rajesh Malik
Son of Shri V.P. Malik,
R/o A253, New Friends Colony,
New Delhi. ... Petitioner
Versus
1. Union of India
Through Land Acquisition Collector,
SouthWest District, Kapashera,
New Delhi.
2. Delhi Metro Rail Corporation Ltd.
... Respondents
Village : Masoodabad
Award No.: 05/200506
Filed on : 06.10.2005
Heard on : 26.04.2011
Decided on : 13.05.2011
JUDGMENT:
1. Petitioner was the recorded owner of land measuring measuring 1 bigha and 4 biswa in Khasra No. 409 min in village Masoodabad, New Delhi.
LAC No. 124/09/05 Page 1/28
2. Vide Award No. 05/200506, 610 bigha and 13 biswa of land of village Masoodabad was acquired for MRTS Project, Najafgarh Depot.
3. In that award, land of the petitioner was also acquired.
4. Collector determined the market value @ Rs. 15.70 lacs per acre. He took into consideration indicative price fixed by the Govt. of NCT of Delhi for agricultural land for arriving at the said market value.
5. Collector got valuation of 43 structures existing on the acquired land. However, as all those structures were unauthorized and illegal, no relief was given for valuation of the structures.
6. Petitioner was not satisfied with the market value determined by the Collector and filed reference under Section 18 of LA Act for enhancing market value from Rs. 15.70 lacs per acre to Rs. 20,000/ per sq. mtr.
7. Petitioner has stated in the reference petition that he was running a LPG agency of Indian Oil Corporation under name and style of M/s. Raj Flames as its sole proprietor. He was using the site for storing Gas Cylinders. Land and structures were his godown.
8. Petitioner has stated that the Collector could not have assessed the market value of his godown on the basis of minimum rates of agricultural land as land in question was used as a commercial site with the prior permission and approval of the Chief Fire Officer, LAC No. 124/09/05 Page 2/28 Delhi Administration and Chief Controller of Explosives, Govt. of India. Gas cylinder godown was constructed as per specifications of the above authorities.
9. For enhancement of market value, petitioner has also relied upon the fact that the land in question was urbanised in the year 1963 when notification under Section 507 of DMC Act was issued and the land had become urban land and had ceased to be rural area.
10. Petitioner has further stated that amenities and facilities of urban land such as roads, availability of electricity and telephone connections, nearness to schools, banks, hospitals, market etc. were available to the land much prior to notification under Section 4 of L.A. Act.
11. Petitioner has also raised an objection that even the market value as assessed by the Collector is not according to the price fixed by the Govt. of Delhi as Collector has failed to give increase in the price as indicated in the notification for the purpose of charging stamp duty by the Delhi Administration.
12. Additionally, the petitioner also claimed Rs. 22,66,500/ towards structures, Rs. 3 lacs for loss of business and Rs. 5,000/ for relocating his business.
13. On the other hand, case of Union of India through LAC is that Delhi Land Reforms Act is applicable to the land in dispute; land in question is not surrounded by any developed or under LAC No. 124/09/05 Page 3/28 developed colony and can be used only for agricultural purposes; there were no structures or tubewells on the land in question, compensation has been legally and correctly assessed by the Collector and the same is adequate and just.
14. Beneficiary, DMRC filed its separate written statement and opposed any further enhancement in the market value of the land in question.
15. Petitioner did not file any replication.
16. On the basis of the pleadings of the parties, following issues were framed: i. Whether Delhi Land Reforms Act is applicable to the land in dispute, if so, its effect? OPD ii. To what enhancement of compensation the petitioner is entitled to? OPP iii. Relief.
17. Petitioner examined 11 witnesses in support of his case.
18. Petitioner himself appeared as PW1. He stated almost similar facts as were stated by him in the reference petition.
19. Petitioner stated that his gas godown had 7 foot high boundary walls having huge steel gates with storage capacity of 560 cylinders of 14.2 kg each.
20. Petitioner has also stated that there was no agricultural activity in the vicinity of land in question as there were a number of LAC No. 124/09/05 Page 4/28 manufacturing units all around the land in question.
21. Petitioner exhibited valuation report of his godown prepared by Govt. approved valuer as Ex. PW1/1. Certified copy of judgment in LAC No. 46/2006 titled as Union of India vs. Rajesh Malik which was a reference under Section 3031 of L.A. Act, was exhibited as Ex. PW1/2. In this judgment, petitioner was given relief for 20% of remaining compensation determined by the Collector.
22. In the crossexamination, petitioner admitted that: i. He never deposited conversion charges with DDA for change of user of land.
ii. Neither he ever applied nor any authority ever granted him permission for using the land for commercial purposes.
iii. Site plan for godown was never sanctioned by any authority like MCD or DDA.
iv. As per his sale deed Ex. PW1/D1 the land was agricultural.
23. Halka Patwari of the village Masoodabad was examined as PW2. He produced Aksizra of village Masoodabad as Ex. PW2/1. This witness stated that village Masoodabad is surrounded by village Nangli Sakrawati, Kakrola and Najafgarh. Village Najafgarh touches village Masoodabad from two sides.
24. In his crossexamination, PW2 stated that: i. Kh. No. 409 was agricultural land, ii. he could not say whether there was any development over concerned khasra number before construction of LAC No. 124/09/05 Page 5/28 Metro, iii. he described the land as 'Be chirag Mauza' and iv. he stated that there is no metal road near Kh. No. 409.
25. Station Officer of Delhi Fire Services was examined as PW3. He produced No Objection Certificate given by Delhi Fire Services to Petitioner for gas godown as Ex. PW3/1. This witness did not appear for crossexamination. Rather PW8 Shri Hari Singh, Divisional Officer of Delhi Fire Services appeared at a later stage. Therefore, evidence of PW3 is liable to be ignored.
26. Draughtsman from the office of Town Planner was examined as PW4. He produced notification under Section 507 of Delhi Municipal Corporation Act which was exhibited as Ex. PW4/1. As per this notification, land of village Masoodabad was urbanized in the year 1967 and it ceased to be rural area.
27. A clerk from the office of L & DO was examined as PW5. He produced schedule of market rates as Ex. PW5/1. In this, village Masoodabad is not named and nearest locality is Najafgarh Industrial Area whose residential and commercial land rates are indicated in the schedule.
28. PW6 was a repeat because this witness had already produced notification under Section 507 of DMC Act which was exhibited as Ex. PW4/1.
29. A clerk from DDA was examined as PW7. He LAC No. 124/09/05 Page 6/28 produced auction register showing rates for residential land in Dwarka. Same was exhibited as Ex. PW7/1
30. Divisional Officer of Delhi Fire Services was examined as PW8/1. He produced NOC given by Delhi Fire Officer dated 15.06.99 as Ex. PW8/1.
31. Letter dated 11.02.2000 written by Chief Fire Officer was exhibited as Ex. PW8/4. In this letter, Indian Oil Corporation was directed to produce a document that the site in question is conforming to MPD - 2001. It was also stated that in case same is not given, NOC issued earlier shall stand withdrawn.
32. Letter dated 23.02.2000 written by Indian Oil Corporation to Delhi Fire Services was given Ex. PW8/2. In this letter, Indian Oil Corporation requested Chief Fire Officer not to take any action against godown site of the petitioner as LPG is an essential commodity and it will inconvenience the general consumers. It was also stated in that letter that Indian Oil Corporation is referring the matter to DDA to advice in the matter as Indian Oil Corporation was not in a position to comment whether LPG godown is conforming to MPD 2001 or not.
33. Letter dated 25.02.2000 was given Ex. PW8/3. This letter was given by Delhi Fire Services to Indian Oil Corporation stating that since Indian Oil Corporation was sorting out the problem of gas godown conforming to MPD 2001 with DDA, Delhi Fire LAC No. 124/09/05 Page 7/28 Services agrees to withhold the action for the time being till a clarification is sought by Indian Oil Corporation and Delhi Fire Services is posted out it.
34. PW8 also exhibited letter dated 24.02.2000 as Ex. PW8/5. This is a detailed letter from Chief Fire Officer to Indian Oil Corporation. In this letter, it is stated that earlier a committee used to finalize LPG sites all over Delhi in the DDA and in this committee a representative of Delhi Fire Services also always used to be there. Once such sites were approved by the DDA in line with the Master Plan of Delhi 2001, thereafter sites used to be allotted by Indian Oil Corporation to the parties. It was also stated in that letter that few sites were referred by Indian Oil Corporation to Delhi Fire Services who gave NOC because IOC enclosed a letter that DDA has not allotted the sites and accordingly people used to buy agricultural land and after seeing the Fire Safety requirements, Delhi Fire Services was issuing NOC. It was stated in that letter that new practice of issuance of NOC by Delhi Fire Services is not at all in line with MPD 2001 and such sites are not in conformity with the Master Plan of Delhi 2001. It was also stated that there is no statutory requirement to get any of the building plans sanctioned in the above referred areas. It was cautioned that this could lead to chaotic conditions and if a disaster occurs in that area, the entire responsibility will be shifted to Delhi Fire Services. The Chief Fire Officer also stated that he has issued letters LAC No. 124/09/05 Page 8/28 to all LPG agencies to give a certificate from the appropriate authority that LPG godown is in conformity with the MPD 2001 and the land owing agency (Dy. Commissioner of the area) has to give Delhi Fire Services a NOC, then only the Delhi Fire Services can consider such cases for grant of NOC. IOC was directed not to send any case if the above said guidelines are not followed and if the parties do not have any such clearances, no case will be entertained by the Delhi Fire Services. A copy of that letter was also endorsed to the Commissioner (Planning), DDA, Vikas Sadan, New Delhi.
35. In his crossexamination, the witness stated that he has no personal knowledge of the case as he was not posted in the division which dealt with the case. The witness stated that as per record, petitioner did not fulfill the conditions recorded in letter dated 15.06.2009 and no final NOC was given to the petitioner. The witness further stated that no intimation was given to Fire Department by the petitioner regarding compliance of conditions mentioned in letter dated 15.06.2009. The witness stated that while granting NOC, the department considers necessary conditions which are pertaining to fire safety and are not concerned with the land use of the proposed site. The witness further stated that the petitioner did not place any document to show that site in question conforms with MPD 2001. The witness also stated that no clarification was given to Fire Department as mentioned in Ex. PW8/3 meaning thereby that no clarification from LAC No. 124/09/05 Page 9/28 DDA was ever communicated to Fire Department that site in question conforms with MPD 2001.
36. Government approved valuer was examined as PW9. He had prepared valuation report Ex. PW1/1. The witness stated that the owner of the property did not disclose the purpose of valuation report. Valuer was not knowing that property in question has been acquired. The witness could not remember what was surrounding the property in question. He stated that he did not remember anything. He stated that he had not seen any document to show that the property in question has been sanctioned commercial use by the authorities. He admitted that without verifying the documents he had valued the property as commercial. He had not seen documents to find out whether property was leasehold or freehold. He admitted that property was situated on agricultural land. He had no knowledge whether any plan was sanctioned by the authorities for property in question. He admitted that he did not try to ascertain whether the structure i.e. the property in question was authorized or unauthorized. The witness stated that he came to know year of construction of property from the owner. The witness stated that had he known that valuation report shall be filed before the Court, he would not have given the same.
37. Dy. Controller of Explosives was examined as PW10. This witness exhibited license given to store compressed gas in cylinders by Petroleum and Explosives Safety Organizations, Govt. of LAC No. 124/09/05 Page 10/28 India as Ex. PW10/1. The witness deposed that the license was surrendered in the year 2003 but was valid up to 2005.
38. Petitioner examined the Patwari as PW10. He exhibited the valuation report prepared by the DMRC as Ex. PW11/1. As per this valuation report, the total value of the structures was Rs. 4,36,873/.
39. Petitioner also filed certified copies of evidence recorded in the case of Suresh Prashad vs. Union of India which is LAC No. 51/09/05 in support of his case. Reference petition in the case of Suresh Prashad was also with respect to award in question.
40. On behalf of respondents, award in question was exhibited as R1 and copies of five sale deeds relied upon by respondents were exhibited from R1 to R5.
41. Arguments were addressed by Ms. Sukhda Dhamija, learned counsel for the petitioner, Shri J.R. Mathur, learned counsel for Union of India and Shri S.K. Jha, learned counsel for DMRC.
42. Issue wise findings are as under: Issue No. 1: Notification under Section 507 of DMC Act urbanizing the land in question dated 23.05.1963 is on record as Ex. PW4/1. After issuance of this notification land in question ceases to be rural area. In view of judgment of Hon'ble High Court in the case of Indu Khurana vs. Gram Sabha and Ors. WP (C) 4143/03 dated LAC No. 124/09/05 Page 11/28 26.03.2010, the affect of notification under Section 507 (a) of Delhi Municipal Corporation Act, 1957 is that on the urbanization of rural area, provisions of Delhi Land Reforms Act ceases to apply. Therefore, this issue is answered holding that Delhi Land Reforms Act, 1957 did not apply to the land in question and therefore, there was no question of any adverse affect on the market value of the land in question on that score.
43. Issue No. 2: So far as affect of (i) notification under Section 507 of DMC Act, 1957 which is Ex. PW4/1 (ii) schedule of market rates which are Ex. PW5/1, (iii) auction register of land in Dwarka which is Ex. PW7/1 and (iv) certified copy of evidence recorded in the case of Suresh Prashad vs. Union of India LAC No. 51/09/05 is concerned, same is discussed in detail and rejected vide judgment dated 21.12.2009 passed in the case of Shri Suresh Prashad. Therefore, the evidence noted above is not being discussed again in this judgment.
44. The only new evidence which is to be discussed to find out whether petitioner is entitled to higher market value than already determined in the case of Suresh Prashad is the evidence of PW1, the petitioner, where he has claimed that the land in question cannot be assessed treating the same as agricultural land because petitioner was running a gas godown at the land in question and that the land in question be treated as a commercial land. LAC No. 124/09/05 Page 12/28
45. Simultaneously, evidence of PW8 witness from Delhi Fire Services, is also to be considered to find out whether same allows treating the land of petitioner as commercial site. Evidence of PW9 who is Government approved valuer who gave his valuation report and evidence of PW11, the Patwari who proved valuation report of the structures at land in question is to be considered for value of structures existing at the site.
46. During arguments, counsel for petitioner filed written submissions three times thrice.
47. In the first written synopsis, petitioner has stated that the land was built up as a commercial property with prior permission of concerned authorities. Petitioner relied upon license dated 11.01.2000 to store compressed gas in cylinders issued by the Chief Controller of Explosives which is Ex. PW10/1 and NOC issued by Chief Fire Officer, Delhi Administration dated 15.06.1999 as Ex. PW3/1. Petitioner has relied on evidence of PW8 Shri Hari Kishan, Divisional Officer of Delhi Fire Services where he stated that NOC dated 15.06.1999 was not revoked as the question of revoking the NOC was kept in abeyance. Petitioner has relied upon license given by Dy. Controller of Explosives to contend that as per the license the premises cannot be used for any purpose other than for keeping compressed gas filled in cylinders. On the basis of this condition, petitioner has contended that land use of petitioners land on the date of LAC No. 124/09/05 Page 13/28 notification under Section 4 of L.A. Act was commercial in nature. Petitioner has also relied on evidence of PW10 where he has stated that sanctioned plan of the gas godown is part of license to contend that gas godown was as per sanctioned plan. Petitioner has contended that once a license was obtained from Chief Controller of Explosives, it is deemed to be a complete sanction itself to authorize the petitioner to use the land for said purpose alone. Petitioner has also stated that the judgment in the case of Suresh Prashad passed by this Court is distinguishable because the land was used by Shri Suresh Prashad for agricultural purposes but the land of the petitioner was not being used for cultivation but used for commercial purposes. Therefore, the petitioner claimed that the market value of the land in question be determined on the basis of a commercial site.
48. In the written arguments filed by the petitioner on 13.09.2010, the petitioner has averred that liquefied petroleum gas is covered under the Essential Commodity Act, 1955 and being an essential commodity it does not require any further permission to use the land by any other authority. Petitioner has relied upon valuation report of PWD where it is shown that on the land in question LPG godown was running. On the basis of this, petitioner has contended that potentiality of the land cannot be ruled out.
49. In the written submission dated 02.02.2011 filed by the petitioner, petitioner has stated that petitioner is entitled to LAC No. 124/09/05 Page 14/28 commercial value of his land as per schedule of market rates and under no circumstances the market value of the land be calculated treating the land in question as agricultural land. Petitioner has stated that the land of petitioner falls into Zone K of the MPD 2001. Petitioner has contended that as per land use plan, there is no area of Zone K which is notified as agricultural area and the same reflects mixed land that is residential and commercial.
50. Petitioner has relied upon following case law in support of his case: i. S. Sujan Singh vs. Yad Ram : 36 (1988) Delhi Law Times 413 : In this case, it was held that where with regard to agricultural land an agreement to sell was executed for the purposes of building houses, same was not invalid because agricultural land can be used for purposes other than those mentioned in Section 22 of Delhi Land Reforms Act, 1954 with the permission of Dy. Commissioner and if no permission was given, land can be used for purposes mentioned in Delhi Land Reforms Act, 1954. This judgment is not relevant for the purpose of decision of this reference. ii. Lt. Governor of Delhi & Ors. Vs. Gurpratap Singh :
113(2004) Delhi Law Times 690 (DB) : In this case it was held that where a motel was constructed after approval of MCD and DDA, permission to change land user under Section 23 of Delhi Land Reforms Act, 1954 was not required. This judgment is also not relevant for the purposes of decision of this reference.
iii. S.S. Aggarwal vs. Union of India & Ors. : RFA 114/98 LAC No. 124/09/05 Page 15/28 dated 21.02.2003: In this case, effect of notification under Section 507 of Delhi Municipal Corporation Act, 1957 was considered. However, decisive factor for rendering the judgment was that revenue estate of Jasola was development area where lot of development activity had already taken place and had become one of the prestigious areas in the National Capital Territory of Delhi. Therefore, key words are development activity on the land in question. For deciding present reference, what development activity had existed on acquired land would be relevant and would be considered in following paras.
iv. Chandan & Ors. vs. U.O.I. : 48 (1992) DLT 202(DB) : In this case 1/3rd deduction was made from circular of Central Government containing information for guidance of leaseholders fixing the market value of the residential plots in Kalkaji. Question of deduction becomes relevant only after a conclusion is reached that circular of Central Government fixing market value for guidance of leaseholders of residential plots is applicable for determining the market value.
v. Brig. Sahib Singh Kalha & Ors. vs. Amritsar Improvement Trust & Ors: AIR 1982 SC 940; Award of Collector based on belting system was upheld and deductions of 33% and 20% in other cases in market value was upheld. In present case, Collector has not used any belting method. Therefore, judgment is not applicable to the facts of the case.
vi. Spl. Tehsildar, Land Acquisition Vishakhapatnam vs. Smt. A. Mangala Gowri : AIR 1992 SC 666: In this case market value was determined on the basis of a sale deed by LAC No. 124/09/05 Page 16/28 giving 1/3rd deduction. In this case, petitioner is not relying upon any sale deed of acquired land and therefore the judgment is not applicable.
vii. Bhagwathula Samanna & Ors. vs. Special Tehsildar & Land Acquisition Officer Vishakhapatnam Municipality:
AIR 1992 Supreme Court 2298. This judgment was cited to argue that where the land in question is already developed no deduction is to be applied. However, before applying this judgment to this case it is to be seen whether the land in question was fully developed or not.
viii. Bhagat Ram vs. Kishan : AIR 1985 SC 962. This judgment is also on the question that sale deed is not invalid if agricultural land is sold for construction ofs houses. Therefore, this judgment also has no application to the reference in hand.
ix. Ajit Singh & Ors. vs. DDA : 2005 DLT 336. This judgment was filed to show preparation and operation of Zonal Development Plan as per Delhi Development Act, 1957 and has no application to the case in hand.
x. Pratap Singh vs. Union of India : L.A. Appeal No. 193/06 dated 27.11.2008. This judgment was cited to show that once the area is urbanized under Section 507 of DMC Act, this is a factor to be kept in mind by determining the market value.
51. After considering the pleadings of the parties, evidence on record and judgments cited by the petitioner, it cannot be said that the market value of the land in question can be determined LAC No. 124/09/05 Page 17/28 treating the same as a commercial land.
52. Permission by Chief Fire Officer and Chief Controller of Explosives to use the land as gas godown does not change the user of the land from agricultural to commercial.
53. Chief Fire Officer by granting permission considers only Fire Safety requirements and not user of the land. Similarly, relying upon NOC of Chief Fire Officer, Controller of Explosives also cleared the site. However, the same does not show that user of the land was changed from agricultural to commercial.
54. Delhi Fire Service or Controller of Explosives are not vested with any jurisdiction to change user of the land.
55. Ex. PW8/5 which is letter dated 24.02.2000 written by Chief Fire Officer to Indian Oil Corporation endorsing a copy to Commissioner (Planning), DDA makes the position very clear in this regard.
56. As per said letter, Chief Fire Officer had protested to Indian Oil Corporation that the procedure for allocation of sites for LPG godown used to be that a committee used to finalize LPG sites all over Delhi in the DDA and in this committee a representative of Delhi Fire Service also always used to be there. Sites were approved in line with master plan. The role of Delhi Fire Service was to issue directives for ensuring the safety in particular godown.
57. In the said letter, it is also written that by way of a LAC No. 124/09/05 Page 18/28 new practice, 3/4 sites were referred by Indian Oil Corporation to Delhi Fire Service who gave NOC relying on a letter of Indian Oil Corporation that DDA had not alloted the sites for gas godowns. Delhi Fire Service issued NOC after seeing the Fire Safety requirements only. Gas godown of present petitioner was also one of those sites.
58. It is protested by Chief Fire Officer that this new practice is not at all in line with MPD 2001 nor such sites are in conformity with Master Plan of Delhi 2001.
59. It is also stated that people are complaining against grant of NOC by Delhi Fire Services in favour of such gas godowns.
This could lead to chaotic conditions and tomorrow if a disaster takes place in that area, the entire responsibility will be shifted on Delhi Fire Service.
60. It was further mentioned in Ex. PW8/5 that Delhi Fire Service has written letters to all the gas godown owners to give a certificate from the appropriate authority that LPG godowns are in conformity with MPD 2001 and the land owing agency (Dy. Commissioner of the area) has to give NOC then only Delhi Fire Service can consider such cases for grant of NOC.
61. The above makes it abundantly clear that NOC given to petitioner by Delhi Fire Service for gas godown for land in question was the de hors the previous practice where DDA used to approve the sites in conformity with MPD 2001.
LAC No. 124/09/05 Page 19/28
62. In Ex. PW8/4, which is letter dated 11.02.2000, written by Chief Fire Officer to Indian Oil Corporation regarding gas godown of the petitioner, IOC was advised to furnish a document that the site in question where the LPG godown is proposed to be constructed is conforming to MPD 2001.
63. Letter Ex. PW8/4 was written on 11.02.2000. Possession of the land was taken on 23.09.2003 i.e. after more than three years of that letter. Neither Indian Oil Corporation nor petitioner furnished any document from DDA that the gas godown is conforming to MPD 2001.
64. Petitioner has stated that amenities and facilities of urban land such as roads, availability of electricity and telephone connections, nearness to schools, banks, hospitals, market etc. were available to the land much prior to the notification under Section 4 of L.A. Act. But petitioner has brought on record no evidence of existence of roads abutting the land in question. Petitioner has also not given any evidence that he had electricity connection for commercial purposes or any electricity connection at all. There is no evidence of availability of telephone to the land in question. Except for a bald statement, there is no evidence that there was any school, bank, hospital or market near the land in question.
65. In the evidence, petitioner stated that there were number of manufacturing units all around the land in question. But LAC No. 124/09/05 Page 20/28 there is no evidence of even one manufacturing unit around the land in question. Petitioner has admitted that he had purchased the land on 02.07.1999 vide Ex. PW1/D1. The land in question was agricultural land in the said sale deed.
66. PW2, Halka Patwari of village Masoodabad has deposed that the land in question was surrounded by villages from all the four directions. These villages are Nangli Sakrawati, Kakrola and Najafgarh. This witness in his crossexamination stated that the land in question was agricultural land. Although the witness was Halka Patwari but he could not say whether there was any development over concerned khasra number before its acquisition by the Collector. Rather the land in question was described as 'BeChirag Mauza'. The witness categorically stated that there is no metaled road near Kh. No.
409.
67. The government approved valuer, PW9, who had prepared valuation report Ex. PW1/1 could not depose what was surrounding the property in question. He had not seen any document before making his valuation report that property in question has been sanctioned commercial use by the authorities. The witness admitted that property was situated on agricultural land.
68. Therefore, there is no evidence on the record that there was any development or availability of amenities and facilities of urban land to the land in question.
LAC No. 124/09/05 Page 21/28
69. As noted above, petitioner in his crossexamination has deposed that he never deposited conversion charges with DDA for change of use of land; neither he ever applied nor ever any authority granted permission for using the land for commercial purposes; site plan for godown was never sanctioned by any authority like MCD or DDA and as per sale deed by which petitioner became owner of the land, the land was agricultural land.
70. In this regard, Section 53 of Delhi Development Act is relevant which is as under : "Effect of other laws. (1) (2) (3) Notwithstanding anything contained in any such other law
(a) ....
(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained."
71. A perusal of Section 53 of Delhi Development Act shows that mere approval by Delhi Fire Service or Controller of Explosives does not amount to change of user of land by DDA.
72. Petitioner had summoned witness from DDA who was PW7, who produced auction register showing rates for residential land for Dwarka but petitioner did not summon any witness of DDA to LAC No. 124/09/05 Page 22/28 bring on record land use of the land in question or whether the running of gas godown on land in question was as per MPD 2001.
73. Counsel for the petitioner has relied upon the judgment passed by the Hon'ble High Court in the case of Deepak Sachdeva vs. Union of India in L.A. Appeal No. 228/09 dated 22.03.2011 to submit that schedule of market rates can be relied upon for determining the market value of land which is commercial in nature.
74. In the case of Deepak Sachdeva, land owners had led evidence of the Town Planner of the MCD to show that shops were sanctioned on the ground floor of buildings constructed on the lands which were acquired by the subject notification and the upper floors in the buildings were residential.
75. In present case, petitioner had also summoned a witness, PW4 from the office of Town Planner. However, the evidence of this witness was restricted to placing on record notification under Section 507 of DMC Act. However, no effort was made by the petitioner to elicit from this witness about the land use of the land in question.
76. Section 24 of the Land Acquisition Act, 1984 provides that the Court cannot take into consideration any increase to the value of the land on account of its being put to any use which is forbidden by law or opposed to public policy.
LAC No. 124/09/05 Page 23/28
77. As a last minute effort, learned counsel for the petitioner tried to show that land use plan of the land in question is not agricultural but the same is mixed land i.e. residential and commercial. Counsel for the petitioner filed along with written arguments, copy of land use plan.
78. Filing on record any document along with written arguments cannot take the place of evidence. As noted above, petitioner has not examined any witness to show that land use of the land in question was mixed or commercial.
79. Even otherwise, a perusal of Master Plan of Delhi perspective 2001 does not show any K Zone which according to petitioner is mixed plan use.
80. Resultantly, the conclusion is that petitioner is not entitled to claim compensation of land in question by treating the land in question as a commercial land.
81. The next question is with regard to cost of structures. Collector got valuation of structures in question from PWD.
82. As per this valuation report, the value of the structures was Rs. 4,36,873/.
83. As against this, valuation report relied upon by the petitioner which is Ex. PW1/1 prepared by PW9 the value is Rs. 22,66,500/.
84. Ex. PW1/1 is not acceptable because the witness PW9 LAC No. 124/09/05 Page 24/28 had conceded that he had prepared the report without verifying the documents and had treated the property as commercial without any basis.
85. In the case in hand, there is nothing on record to show permission in favour of petitioner to erect gas godown by DDA or Dy. Commissioner.
86. In the case of State of Orissa Vs. Rajakishore Das AIR 1996 SC 1508, respondent had constructed the building without permission of any authority. It was held that the government is entitled to have the unauthorized construction demolished, unless the owner himself voluntarily demolishes and takes the value of the building structure as salvage material. It was further held that authorities are not bound by such construction and the state is not bound to pay compensation of the value of such a building constructed unauthorizedly.
87. In the case of Naresh Kumar Vs. Govt of NCT of Delhi 2010 (174) DLT 355, certain compensation was awarded in contravention of Section 24 of the Act. According to respondents, no compensation ought to have been awarded to the petitioner in respect of said structures. Therefore review of award was done and fresh review award was passed which was challenged before Hon'ble High Court.
88. It was held that nothing is placed on record to show LAC No. 124/09/05 Page 25/28 that structure existing at the time of acquisition was in accordance with Sanction Plan of MCD or that construction was done as per Building Bye Laws. Petitioners can not take advantage of their own wrong. Resultantly, writ petition was dismissed.
89. In the case of Special Land Acquisition Officer Vs. Karigowda and Ors. Civil appeal No. 3838/10 dated 28.04.2010 it is again reiterated by Hon'ble Supreme Court that Sections 23 and 24 of the Act provide a complete scheme which can safely be termed as statutory guidelines and factors which are to be considered or not to be considered by the court while determining the market value of the acquired land. It is not permissible for authorities to go beyond the scope and purview of the provisions or the pre requisites stated in these provisions for determination of the market value of the land. Expression shall in Section 24 of L A Act would have to be construed as mandatory and not directory because the language of Section 24 of L A Act mandates that the court shall not take into consideration the matters indicated in firstly to eighthly of Section 24 of the Act. Section 24 has a list of negative factors visavis the land under acquisition which is to be taken into consideration while determining the amount of compensation.
90. Therefore, petitioner can't be given benefit for structures.
91. There is no evidence that the petitioner suffered any LAC No. 124/09/05 Page 26/28 loss of Rs. 3,00,000/ by changing his gas godown from land in question to same other place. Therefore, no benefit can be given to the petitioner for loss of business. Similarly, no benefit can be given to the petitioner for shifting charges in the absence of any evidence.
92. Therefore, petitioner has not succeeded in persuading this Court to take a different view for market value of the land in question than already taken in the case of judgment in the case of Suresh Prasad vs. Union of India which is LAC No. 51/09/05 dated 21.12.2009.
93. In the case of Suresh Prasad, further escalation @ 10% per annum was given between the date of notification indicating minimum price of agricultural land in Delhi and date of notification under Section 4 of Land Acquisition Act. Petitioner is also entitled to the same relief.
94. Reliefs :
(i) petitioner is entitled to receive compensation @ Rs. 3,92,500/ per bigha i.e. an increase of Rs. 65,417/ per bigha.
(ii) petitioner is entitled to receive additional amount @ 12% under Section 23(1A) of the Land Acquisition Act, 1894.
(iii) petitioner is entitled to receive solatium @ 30% per annum on the enhanced compensation.
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(iv) petitioner is entitled to receive interest @ 9% per annum for first year from possession and @ 15% per annum for subsequent period till payment.
(v) petitioner is entitled to benefit of Sunder vs. Union of India: 93 (2001) DLT 153.
(vi) Petitioner will get no interest between 14.12.2009 till 20.01.2010.
95. 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 petitioner after deducting compensation already paid. Decree be prepared in terms of reference and file be consigned to record room.
Announced in the open Court
on the day of 13th May, 2011 (ARUN BHARDWAJ)
ADDL. DISTRICT JUDGE
DWARKA COURTS: NEW DELHI
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