Delhi District Court
Jain Enterprises vs Union Of India on 20 February, 2016
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
LAC No. 17/10/06
Unique Case ID No. 02401C0606152006
Area: Tilak Nagar Industrial Area,
Minakshi Garden, New Delhi
Date of Notification u/s 4 : 09.10.2003
Date of Notification u/s 6 : 03.12.2003
Award No.: 12/DC(W)/2004-2005 dated 15.07.2004
Jain Enterprises
through its Proprietor,
Sh. Sanjeev Jain,
C/o WZ-F-167, Uttam Nagar,
Near State Bank of India,
Delhi-110059. ....Petitioner
versus
1. UNION OF INDIA
Through Land Acquisition Collector,
District West, Delhi.
2. Delhi Metro Rail Corporation Ltd.
NBCC Place,
Bhishma Pitamah Marg,
Pragati Vihar,
New Delhi - 110053. .....Respondents
Date of institution of the case : 15.07.2006
Date of reserving of judgment : 06.02.2016
Date of pronouncement of judgment : 20.02.2016
(Reference under Section 18 of Land Acquisition Act)
LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 1/17
JUDGMENT
1. The Government of NCT of Delhi acquired total land measuring 2686.56 Sq. meter (1515.66 + 1170.90) under Section 4 of the Land Acquisition Act, 1984 (hereinafter referred to as 'the Act') vide notification no. F.7(26)/2003/LA/L&B/MRTS (W)/ 11473 dated 09.10.2003 also under Section 6 vide notification no.
F.7(26)/2003/LA/L&B/MRTS (W)/20698 dated 03.12.2003. The land was notified under Section 17 (i) vide notification no. F7(26)/2003/LA/L&B/MRTS(W)/20699 dated 03.12.2003. The land was acquired for the purpose of Mass Rapid Transit System Project.
2. The Land Acquisition Collector (hereinafter referred to as 'the Collector') passed award no. 12/2004-2005 dated 15.07.2004 under Section 11 of the Act. The Collector determined the market value of the land under acquisition 1515.66 sqm @ Rs.17,870/- per sqm. and 1170.90 sqm. @ Rs.10,569/- per sqm.
3. According to statement of Section 19 of the Act filed by the Collector petitioners were shown as recorded owner of the acquired land.
Sl. Entry Name of Field Total Share Kind Details of
No. No. petitioners No. area of Trees/
Bigha - soil Buildings
Biswa / Crops
Jain Enterprises through NIL NIL
Prop. Sanjeev Jain
4. The petitioner filed the reference under Section LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 2/17 18 of the Act against the findings and determination of the market value of the land/property made by the Land Acquisition Collector, West (hereinafter referred to as 'Collector (West)' has been referred to the reference court.
5. In brief, the facts are that the petitioner firm Jain Enterprises is a sole proprietor firm owned by Sh.Sanjeev Jain and was having its office and running business activities from property no. WZ-101, Meenakshi Garden, Tilak Nagar, Delhi- 110018 (hereinafter referred to as 'the subject premises') for the last more than 30 years. The total area in occupation and possession of the petitioner was 1080 sq. feet on the ground floor in the building. It is stated that the subject premises was an authorized and approved commercial building and the entire surrounding of the building is highly densed with commercial activities.
6. It is stated that the petitioner had taken the subject premises on a long term agreement. Thereafter, the petitioner made alteration/amendment according to necessity and spent huge amount. Till acquisition the subject premises was maintained with high quality material and all sort of modern amenities/fixture and fittings were procured.
7. It is further stated that the petitioner is engaged in the business of trading and imports and was having seven staff members. The annual turn over of the petitioner was Rs.2,00,00,000/- and running in huge profits. The petitioner is also maintaining the Accounts Book. The staff engaged in the petitioner were very experienced and petitioner was commanding good reputation, goodwill and clientele in the LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 3/17 market and was having almost monopoly in its filed. The petitioner has Import-Export Code number of Ministry of Commerce, Government of India.
8. It is further stated that the subject premises has been acquired vide above award and notice of acquisition under Section 6 of the Act was published after taking over the possession and demolition of the subject premises. The petitioner filed its objections and by its objections claimed that in case the Authorities acquire the premises then it be paid a sum of Rs.2,00,00,000/- as compensation towards loss of goodwill, prestige and clientele; Rs.40,36,610/- towards damages to fittings and fixtures and for re-installation; Rs.15,60,300/- towards shifting expenses, connectivity and other ancillary and incidental expenses; Rs.4,10,60,750/- per annum towards earning as gross profits which would be suffered by the petitioner.
9. It is further stated that as the premises was demolished before publication of notice under Section 6 of the Act, the petitioner could not take out his goods/belongings and other record. The Collector (West) awarded Rs.4,62,240/- for structure and nothing has been awarded for loss of business and other damages. It is stated that a sum of Rs.4,00,00,000/- be awarded as costs of goods, furniture and other paraphernalia etc. The petitioner has already challenged the acquisition proceedings before the Hon'ble High Court in separate Writ petition.
10. It is further stated that the subject premises was near to all wholesale markets of Delhi and being the single LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 4/17 commercial market of West Delhi, the petitioner had number of customers from the surrounding areas. The subject premises was situated in very thick populated Abadi of Tilak Nagar. The entire area is fully developed area and was having all amenities/facilities of modern life like Electricity, Water, Telephone, Transport Schools, Colleges, Cinemas, Post Office, Hospitals and nursing Home etc.
11. The petitioner challenged the award, interalia, on the following grounds:
12. The Collector (West) has failed to consider that the premises was situated in heart of West Delhi and erred in fixing the market value of the land and structure at too low and inadequate rate. The Collector (West) has ignored the fact that the premises of the petitioner was an authorized and approved commercial premises and was surrounded all around by approved residential and commercial colonies much prior to issuance of notification under Section 4 of the Act.
13. The Collector (West) has failed to consider that the subject premise was situated in thick populated area in the wholesale market and the super structure raised by the petitioner was of high values. The valuation report submitted by petitioner was discarded without assigning reasons and valuation report of PWD was accepted unilaterally without assigning any reasons.
14. The Collector (West) has not considered the damages to be suffered by the petitioner on account of LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 5/17 shifting of business and loss of goodwill, clientele, service of the staff and damages and loss of important documents as the building was demolished without publication of notice under Section 6 of the Act. The Collector (West) had also not correctly considered the amount to be spent by the petitioner on account of relocation of office, shifting expenses, installation of office equipments and other incidental expenses.
15. It is prayed that petitioner be paid lump sum amount of Rs.4,30,00,610/- towards loss of goodwill, prestige and clientele; Rs.50,15,900/- towards damages of structure, installations, fittings and fixtures standing in the premises; Rs.15,60,300/- for relocation of office, shifting expenses, installation of office equipments and other incidental expenses; Rs.4,00,30,610/- per annum towards gross profit, loss of earnings due to suspension of business activities etc.; Rs.4,00,00,000/- towards actual damages suffered by the petitioner due to non-publication of the notification before taking possession; exemplary costs of 20 times with 30% solatium.
16. Written Statement filed by Union of India, in which preliminary objections taken that Delhi Land Reforms Act is applicable to the land in dispute. The land was occupied at the instance of DDA, which has also to make the payment for acquisition. The petitioner is not a recorded owner in the revenue record. The compensation has been assessed in the name of recorded owner as per revenue record. The land in question is not surrounded by any developed or undeveloped colony and can only be used for agriculture. There was no structure, treewell or tubewell on the land in question at the LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 6/17 time of publication of notification under Section 4 of the Act. On merits, all the averments in reference petition are denied. It is stated that the compensation has been legally and correctly assessed by the Collector (West) and the same is adequate and just. Therefore, reference petition may be dismissed. The petitioner is also not entitled to compensation for loss of earnings severance charges.
17. Respondent no.2/DMRC also filed written statement and stated that Jain Enterprises has not been recorded owner/tenant of property in question. Property No. WZ-101, Meenakshi Garden, New Delhi comprised of 222.83 sq. mtr. of land owned by various persons. The petitioner has not placed any document on record to prove its title to the property in question. Respondent no.2 denied regarding the commercial activity or land in question. All the contents of the written statement and grounds are denied. It is stated that the petition may be dismissed with exemplary cost.
18. No rejoinder filed by petitioner to the written statement of both the respondents.
19. On the basis of pleadings, my Ld. Predecessor vide order dated 03.02.2007 framed the following issues:
1. What is the right, share and interest of the petitioner in the acquired land?
2. What was the market value of the acquired land on the date of issuance of notification u/s 4 of the LA Act?
3. To what enhancement in compensation, if any is the petitioner entitled?
4. Relief.
LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 7/17
20. Petitioners in support of his case examined PW1 Sh. Sanjeev Jain, Proprietor of Jain Enterprises (partly); PW2 Sh. Hari Dutt Kaushik, Kanoongo, LAC (West) office, Rampura; PW3 Sh. Rameshwar Dayal, Registered Architect; PW4 Sh. Sripat Singh, Foreign Trade Development Officer; PW5 Sh. G.C. Sardana, Head Clerk, L & B Department, Vikas Bhawan, New Delhi; PW6 Sh. Vinod Kumar Dahiya, Executive, HDFC Bank. As per statement of Ld. Counel for the petitioner, petitioner evidence was closed vide order dated 19.08.2015.
21. Respondent no.1 - Union of India, as per statement of Sh. Vijay Sharma, Advocate tendered award no. 12/DC(W)/2004-2005 as Ex. R-1. Statement of Sh. A.S. Rao, Law Officer of respondent no.2/ DMRC tendered certified copies of judgments dated 15.07.2008 in LAC No. 40/05 in case titled 'Khush Bakt Rai vs. UOI' decided by Sh. O.P. Gupta, Ld. ADJ as Ex. R2 - 1; judgment dated 15.07.2008 in LAC No. 50/05, titled 'M/s. Suri Brothers Vs. UOI' decided by Sh. O.P. Gupta, Ld. ADJ as Ex. R2 - 2; judgment dated 04.05.2009 in LAC No. 145/09 titled 'Harbans Singh vs. UOI' decided by Sh. Ashwani Sarpal, Ld. ADJ as Ex. R2 - 3 and judgment dated 19.04.2010 in LAC no. 80/09 titled 'Madan Lal Khurana vs. UOI' decided by Sh. Ashwani Sarpal, Ld. ADJ as Ex. R2 - 4. Thereafter, evidence was closed on behalf of respondent no.2/ DMRC.
22. I have heard Sh. I.S. Dahiya, Ld. Counsel for the petitioner, Sh. Vijay Sharma, Ld. Counsel for the Union of India and Sh. A. S. Rao, Law Officer of respondent no. 2/DMRC and also gone through the written submissions. My issue wise LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 8/17 findings are as under:
ISSUE NO. 123. The petitioner appeared in the witness box as PW1 and filed affidavit Ex. P1. He deposed that he had been running its business from the premises bearing no. WZ-101, Meenakshi Garden, Tilak Nagar, Delhi for the last more than 30 years from its acquisition. Petitioner was in possession of rented area of 1080 sq. ft. on the ground floor. Rent was Rs.10,000/- per month for a period of 10 years and now he has taken the rented accommodation of similar nature in the same locality @ Rs.40,000/- per month and paying Rs.40,000/- per month up to December, 2007. He proved rent agreement Ex. PW1/2.
Ld. Counsel for the petitioner submits that the petitioner was legal tenant in respect of the acquired property. The agreement Ex. PW1/2 proved by the petitioner. The owner of the property is Smt. Sarla Devi Jain. Therefore, the petitioner has every right and interest in the acquired property. On the other hand, Ld. Counsel for the respondent submitted that Ex. PW1/2 is a sham agreement and prepared only to get the compensation. It is an agreement between mother and son for 10 years and same is not registered. Ld. Counsel for the respondents submits that it is not a legal piece of evidence and not proved as per law. Therefore, it cannot be read as evidence in favour of the petitioners. He further submits that the petitioner has no interest or tenancy rights in respect of acquired land.
24. I have considered submissions of both the LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 9/17 Counsels and perused the record. It is pertinent to mention here that the petitioner Sh. Sanjeev Jain appeared in witness box on 09.07.2009 and his examination in chief was record. The cross-examination was deferred. However, despite ample opportunities, petitioner failed to appear for cross- examination. In these circumstances, on the basis of only examination in chief, the testimony of PW1 cannot be read and relied. In the absence of testimony of PW1, petitioner failed to prove the issue. Therefore, decided against the petitioner and in favour of respondents.
ISSUE NO. 2 & 325. In view of finding on issue no.1 that petitioner has no right, title or interest in respect of acquired land and the fact that present reference petition filed by the petitioner firm is to claim compensation under Section 23 of the Act and there is no averment in the petition regarding the determination of market value of the acquired land. Further more, no evidence led by the petitioner on these issues. Therefore, there is no occasion to determine the market value of the acquired land in the present facts and circumstances of the case. Further more, when petitioner is not the owner of the acquired land and has not claimed fair market value or determination of market value of the acquired land, then there is no question of enhancement of compensation as per Section 23 of the Act. Hence, on the basis of above observation and discussion, issue no. 2 and 3 also decided against the petitioner and in favour of the respondents.
26. There is no specific issue framed on alleged loss and damages caused to the petitioner on account of LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 10/17 acquisition, which are specifically pleaded and evidence also led by petitioner. It is taken up hereinafter and decided as well:
27. The onus to prove the alleged damages and loss is on the petitioner, who examined in total 6 witnesses as mentioned herein above. The vital witness is PW1 Sh. Sanjeev Jain, proprietor of petitioner firm. In the petition, the petitioner stated that he has been running Jain Enterprises at the acquired premises for the last more than 30 years and carrying out business of trading and import. Petitioner further relied on a letter of MCD dated 13.11.2003 Ex. PW1/1 but no witness from MCD examined and it was not addressed to the petitioner firm. The addressee of the letter Smt. Sarla Jain also not appeared in the witness box. Petitioner exhibited Ex. PW1/3, a typed statement of profit and loss account. It is not supported with any original document and not certified by Chartered Accountant. It is typed and signed by petitioner. Similarly, Ex. PW1/4B; a letter of Bank of Punjab Ltd., typed copy of pending orders in hand Ex. PW1/5; retrenchment compensation Ex. PW1/6; addresses of certain clients and brokers Ex. PW1/8; photocopy of police complaint Ex. PW1/10; list of office equipments destroyed Ex. PW1/11; list of fixtures, fittings and furnitures destroyed Ex. PW1/12; photocopy of an invoice Ex. PW1/13; delivery challan Ex. PW1/14; list of articles destroyed Ex. PW1/15. No original documents in support of these lists filed and proved. It is pertinent to mention here that the testimony of PW1 Sh. Sanjeev Jain cannot be read and relied because it is not a complete piece of evidence. PW1 Sh. Sanjeev Jain despite ample opportunities, failed to appear for cross-examination. Hence, LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 11/17 in the absence of legal testimony of PW1 Sh. Sanjeev Jain, and original documents of petitioner firm failed to prove the alleged losses.
28. Petitioner firm examined PW4 Sh. Sripat Singh, who proved Ex. PW4/1, a document issued by Foreign Trade Development Office. According to this documents, petitioner firm registered with this Department for carrying out import and export in the year 1999. As per law, it is essential to get registration for carrying out any import export business. It is pertinent to mention here that as per testimony of PW4, even this document is not proved as per law because original record has not been produced. PW4 had filed photocopy of the said document. In the absence of original record, it is not proved as per Evidence Act. Therefore, it cannot be read and relied. However, the plea of the petitioner firm that it has been carrying on business of export import for the last 30 years is not supported by Ex. PW4/1. Therefore, the petitioner failed to prove that the business has been carried on for the last 30 years.
29. The petitioner further examined PW3 Sh.Rameshwar Dayal, the Valuer. He also proved this valuation report Ex. PW1/17. In the cross-examination, he deposed that he had visited the property on 26 th / 27th November, 2003 i.e. one month prior to the day of acquisition of the property i.e. 23.12.2003. He admitted that he did not measure the premises personally. He further admitted that initially area was residential but later on converted into commercial. The year of construction informed by the petitioner was 2002. He further admitted that the petitioner LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 12/17 approached him for assessing the value of disputed property. However, he denied the suggestion that the report is false. It is pertinent to mention here that in mid November, the petitioner himself approached the PW3 Sh.Rameshwar Dayal for assessing the valuation. It suggests that he has already the knowledge of acquisition, therefore, prepared himself from all corners. Therefore, it suggests that he must have taken all the steps to secure all his belongings and prepared himself for acquisition, which has to be followed on 23.12.2003. I have gone through the report Ex. PW1/17. PW3 admitted that the report is prepared on the instructions of the petitioner. The report has not mentioned what are the approved standards taken by valuer for determining the valuation of land, rent, cost of construction and other technical details on 06.12.2003. The notification of acquisition was in force since October, 2003 and for Metro Project. But the Valuer has not joined any official of land department for preparation of his report. He has not annexed the Government approved rates or any other authenticated government document which are the basis of his valuation report. He has also not conducted joint inspection. The report is also not certified by any governed concerned official. It is prepared on the instructions of the petitioner, therefore, does not inspire confidence and it cannot be relied in the present circumstances being ex-parte report. The valuation report without associating the representative of LAC is liable to be rejected. It is supported by the judgment of 'Kalawati Devi vs. Haryana State' 1996 (2) PLR 471.
30. Now coming to Ex. PW1/18, which is a paper book, which was submitted by petitioner before the Collector LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 13/17 (West). It is not averred in the petition and it is not mentioned when and how the Ex. PW1/18 was submitted before the Collector (West). Even in the affidavit, no date has been mentioned. It is also not pleaded and deposed the relevance of Ex. PW1/18. Therefore, Ex. PW1/18 is not at all relevant for deciding the issue in question. Further, the petitioner also proved one document Ex. PW1/1, which is the letter addressed to Smt. Sarla Devi Jain by MCD authorities. No original has been produced through the concerned department. No documents, which shows the relevance of this reply by MCD to Smt. Sarla Devi Jain filed on record. It is not clear in what context the MCD has written this letter. Photocopy cannot be proved by the petitioner, therefore, Ex. PW1/1 is not a legal evidence and cannot be read and relied on behalf of the petitioner. It is pertinent to mention here that Ex. PW1/1 is not proved by PW1 on the basis of incomplete testimony. It further mentioned here that the Ex. PW1/1 is relied by PW1 Sh. Sanjeev Jain but his testimony is not subjected to cross-examination, therefore, it cannot be read and relied on behalf of the petitioner.
31. Another document proved by PW6 Sh. Vinod Kumar Dahiya is Ex. PW6/A, which is statement of account. However, it is mandatory as per law that statement of bank account shall be proved as per Bankers Books of Evidence Act. However, Ex. PW6/A does not bear any certification by the bank official as per Bankers Books of Evidence Act. Therefore, Ex. PW6/A is also not read and relied on behalf of the petitioner. More so, this account is very recent to the acquisition about one year prior to it. Although the petitioner claimed that he has been running the business for the last LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 14/17 more than thirty years from the date of acquisition in the petition and as per Import Export Department registered in 1998. In these inconsistent, incoherent pleas, Ex. PW6/A is also not a reliable legal piece of document.
32. The fundamental basis of claim of all the compensation is the loss and profit of the business activities of the petitioner. However, he has not examined any witness or produced any document of his business profit after shifting to the alternative premises as alleged by him. He has not filed any statement of account, statement of Income Tax Returns or any correspondence that any document of sale purchase or statement of bank account showing the transaction or payment of salary to the employed staff. He deposed that he has taken alternative premises at the monthly rent of Rs.40,000/- in the affidavit Ex. P1 but he has not averred in the petition. Therefore, it is an improvement. No agreement or rent receipt filed on record. There is no document filed on record showing that after acquisition, he has been carrying on business from the alleged alternative premises. It is pertinent to mention here that testimony of PW1 cannot be read and relied being incomplete and failed to pass the test of cross-examination. During whole trial, he failed to produce any rent receipt. Therefore, this plea is unbelievable and not established by the petitioner.
33. The petitioner has not produced any documents for filing of Annual Returns with the Income Tax Department, which is mandatory, may be petitioner is exempted from Income Tax being Importer or Exporter.
LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 15/17
34. The contents of the petition and affidavit Ex. P1 filed by the petitioner and the documents, although observed not to be admissible as per law and proved by the petitioner.
35. Hence, on the basis of above observation and discussion, the petitioner miserably failed to prove and establish entitlement for compensation of Rs.4,30,00,610/- towards loss of goodwill, prestige and clientele; Rs.50,15,990/- towards damages of structure, installations, fittings and fixtures standing in the premises; Rs.15,60,300/- for relocation of office, shifting expenses, installation of office equipments and other incidental expenses; Rs.4,00,30,610/- per annum towards gross profit, loss of earnings due to suspension of business activities etc.; Rs.4,00,00,000/- towards actual damages suffered by the petitioner due to non publication of the notification before taking possession; exemplary costs of 20 times with 30% solatium.
36. Therefore, there is no ground for enhancement of any compensation.
ISSUE NO.4 (RELIEF)
37. In view of my findings on issue nos. 1 to 3, the petitioner is not entitled for enhancement of any compensation as prayed in the petition. The reference is answered accordingly.
38. A copy of the judgment be sent to Land Acquisition Collector (West) for information and necessary action.
LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 16/17
39. Decree sheet be prepared accordingly.
40. File be consigned to Record Room.
Announced in the open court today the 20th February, 2016.
(Sanjay Kumar) ADJ-02,West/Delhi 20.02.2016 LAC No. 17/10/06 Jain Enterprises vs. UOI & Anr. 17/17