Delhi District Court
Mrs. Satya Chowdhry W/O Late Ch. Brahm ... vs Union Of India & Anr on 23 October, 2008
IN THE COURT OF SHRI YASHWANT KUMAR :
ADDITIONAL DISTRICT JUDGE (LAC) : DELHI
LAC No. :132/1/07 AWARD No : 1091
VILLAGE : Shakurpur, Delhi
In the matter of :
1 Mrs. Satya Chowdhry W/o late Ch. Brahm Perkash
R/o 96, Anupam Apts, M.B. Road, New Delhi
2 Mr. Suresh Chowdhry S/o late Ch. Brahm Perkash
R/o 6-A, J Block Officers Flat, R.K.Puram, New Delhi
3 Mr. Sidharth Chowdhry S/o late Ch. Brahm Perkash
R/o 96, Anupam Apts, M.B. Road, New Delhi
4 Mr. Ajay Chowdhry S/o late Ch. Brahm Perkash
R/o I-43, Jangpura Ext., New Delhi
...Petitioners
Versus
Union of India & Anr.
...Respondents
Reference received on : 27.09.2007
Award reserved on : 22.10.2008
Award announced on : 23.10.2008
AWARD
REFERENCE U/S 18 OF THE LAND ACQUISITION ACT
1 Vide notification No.F.15(130)/55-LSG dt. 05.03.1960 U/s 4 of the Land
Acquisition Act (hereinafter referred to as the LA Act) followed by declaration u/s 6 of the LA Act vide the notification F.15(130)/55-LSG dt. 05.03.1960, the land including the land of the petitioners situate in the revenue estate of village Shakurpur, Delhi was acquired by the Govt. for the construction of Ring Road Phase-V at village Shakurpur. The Land Acquisition Collector (hereinafter referred to as LAC) after completing all the requirements as provided under the Act, announced the award bearing No.1091 on 22.11.1960 and awarded the compensation @ Rs.2400/- per bigha for Ghairmumkin gher Bagh Nehri and Rs.500/- per bigha for ghairmumkin Johar, Khal, Chah, Pits, cremation ground and shore besides other compensation & statutory benefits.
2 Feeling dissatisfied with the quantum of compensation awarded by the LAC, the petitioners herein filed petition U/s 18 of the LA Act for proper adjudication/market value of the acquired land which was sent to the reference court.
3 In this reference petition, the petitioners have sought the enhancement of compensation on the grounds that the petitioners are the interested persons in the land in question being the owners of 1/6th share in the land mentioned in award no.1091 and measuring 18 bighas 07 biswas. Originally, the said land in question stood in the name of their father late Ch.Brahm Perkash. The petitioners are the legal heirs of late Ch. Brahm Perkash. The father of the petitioners never told the petitioners that he had some land in the Shamlat Deh which has been acquired by the respondent and the same is mentioned in the Annexure. The petitioners have, therefore, come to know only on 16.02.1994 about the acquisition of the land which has been acquired vide the above mentioned award. No notice u/s 4, 6 or U/s 12(2) of the LA Act was served upon the petitioners or upon their father or upon the adult member of the family of the petitioners. Therefore, the petitioners came to know about the award in question only on 16.02.1994 when the petitioners gathered information from the revenue authorities. The land is situated near posh colonies like Sawan Park, Punjabi Bagh, etc. On these grounds among others, the petitioners have filed this reference petition claiming the market value of the land in question @ Rs.12,000/- per bigha besides other statutory benefits. 4 The UOI, in its written statement, has raised the objections on the ground that the Delhi Land Reform Act is applicable to the land in dispute. The correctness of the khasra nos., their area and the extent of share of the petitioners therein has been admitted only to the extent as specified by the LAC in his statement furnished U/s 19 of the LA Act. In response to notice issued by the LAC U/sec 9 & 10 of the LA Act, the petitioners have preferred claim. The land in question is not surrounded by any developed or un-developed colony and can only be used for agricultural. There was no structure, tree, well, or tube well on the land in question at the time of publication of notification U/sec. 4 of the LA Act. The reference is beyond limitation. All other averments made in the reference petition except matter of record have been denied by UOI. Despite opportunities given, written statement has not been filed by CPWD, therefore, the right for filing of written statement by CPWD was closed.
5 On the pleadings of the parties, the following issues were framed by this court on 20.08.2008 which are as under:
1 Whether the reference is barred by the limitation? OPD 2 What was the market value of the land in question at the time of issuance of notification U/sec. 4 of the LA Act? Onus on parties 3 Whether the petitioners are entitled to enhancement in compensation, if so, to what amount? OPP 4 Relief
6 Despite opportunity given, petitioner nos.1 to 3 have not filed any documentary evidence. However, Sh.Ajay Chaudhary/petitioner no.4 has examined himself as PW1 and adopted the same evidence as led in the similar leading reference in LAC No.131/1/07 titled as Satya Chaudhary & Ors. Vs UOI. Whereas, the counsel for the respondents have tendered in evidence the copy of the award no.1091 of village Shakurpur, Delhi as Ex.R-1. The counsel for the respondents have also adopted the same evidence and cross examination as led & conducted by the counsel for the respondents in the similar leading reference in LAC no.131/1/07 titled as Satya Chaudhary & Ors. Vs UOI.
7 I have heard the counsel for the parties and have perused the entire records. My issue wise findings are as under:
ISSUE NO. 1 8 The petitioners, in their reference petition, have averred that the father of the petitioners never told the petitioners that he had some land in the Shamlat Deh which has been acquired by the respondent. The petitioners have, therefore, come to know only on 16.02.1994 about the acquisition of the land which has been acquired vide the award No.1091. No notice u/s 4, 6 or U/s 12(2) of the LA Act was served upon the petitioners or upon their father. Whereas, the respondent, in its written statement, has stated that the compensation has been assessed in favour of Gaon Sabha who is the recorded owner in the revenue records and the petitioners have filed the reference petition beyond limitation. However, the counsel for the petitioners has argued that the limitation period for filing of the reference u/s 18 of the LA Act shall be computed from the date of knowledge of the award announced by the LAC which was not in the knowledge of the petitioners till 16.02.1994 since no notice was served upon the petitioners who are the interested persons in the land in question. The counsel for the petitioners has also referred section 3, 5A, 18, 25, 30 & 31 of the LA Act in support of his arguments on the limitation aspect. The counsel for the petitioners has relied upon the judgment reported in Parsottambha Maganbhai Patel & Ors Vs State of Gujarat & Ors. AIR 2005 SC 3464, it was also held by the Hon'ble Supreme Court that the claimants had no knowledge of declaration of award till payment of compensation to them. Application filed by the applicants within 6 months from the date of knowledge of declaration of the award is not barred by Limitation. In Abdulla Kadar Husseinbhai Lakdawala Vs Special Land Acquisition Officer, Thane AIR 1988 Bombay 18, it was held by the Hon'ble High Court of Bombay that intimation only about date and time of hearing given to the claimants and intimating not mentioning that it was for fixation of compensation. Date of hearing fixed within the stipulated period of 15 days. Provisions of section 9 not complied with, therefore, reference filed without filing a claim before the Land Acquisition Officer is maintainable.
9 The counsel for the petitioners has also argued that the land of the petitioners is not the waste land, therefore, it cannot be vested with Gaon Sabha. In this regard, the petitioner no.4 has adopted the same evidence as led in the similar leading reference in LAC No.131/1/07 titled as Satya Chaudhary & Ors. Vs UOI. This reference court, after having considered the materials placed on record and evidence led by the parties, has already passed the award/ judgment in the said LAC No.131/1/07 wherein, the petitioner no.4 has relied upon the copy of the payment to the extent of 1/12th share in the Shamlat Deh land pertaining to Ch.Brahm Perkash acquired vide award no.680 which was Mark-A, copy of the award no.680 as Mark-B, copy of the judgment dt. 23.09.1997 passed by the then Ld.ADJ, Delhi in LAC No.1/95 titled Satya Choudhary & Ors. Vs UOI & Anr. pertaining to the award no.1747/1/93-94/28-A as Mark-C. In LAC No.131/1/07, Mark-A is the certificate dt. 02.02.2007 issued by the LAC to Sh.Brahm Perkash stating the fact that the compensation amount was paid to Sh.Brahm Perkash in respect of the land bearing khasra nos.1224 min (70-92), 1273 (10-97), 1246 min (0-
13), 1248 (0-1), 1250 (0-10), 1252 (0-4), 1245 min (0-4), 1251 (0-4) & 1200 (0-25). Mark-B is the copy of the award no.680 pertaining to the land situate at village Shakurpur, Delhi acquired vide the notification dt. 25.07.1950 u/s 4 of the LA Act published in the locality of 24.08.1950 wherein the total land under acquisition measuring 20.41 acres had been classified as banjar Qadim and the names of 20 claimants (owners), including Ch.Brahm Perkash father of the petitioners herein, have been mentioned. The khasra numbers which are mentioned in the Mark-A i.e. the compensation certificate issued by the LAC and the khasra numbers mentioned in the statement u/s 19 of the LA Act are different. Therefore, the said payment certificate Mark-A and the copy of the award no.680 Mark-B are not relevant and do not support the case of the petitioners herein since the land and the award are different in the present reference. The counsel for the petitioners has also relied upon the judgment dt. 23.02.1973 in the case of Gaon Sabha of Lado Sarai Vs Jage Ram ILR 1973 I Delhi 984 and has referred page nos.990 & 997. Page no.990 reads as under :
''................................
The Ld. Judge summed up his conclusions as follows:
''Till the land is used for agriculture it is not land within the meaning of the definition and the Act does not apply to it. Hence, if the land happens to be mountanous or sub-mountanous i.e. Ghair mumkin pahar or happens to be Banjar Qadim or Banjar Jadid i.e. not under cultivation then the proprietor remains the owner thereof. It is only when the land is used for agriculture or for a purpose subservient to agriculture that the land came within the definition of land as given in section 3 (13) of the Act and it is only at that stage that the provisions of the Act become applicable to it.'' Page no.997 reads as under :
''........................
In our opinion it is a mistake to consider that banjar qadim or ghair mumkin are not agricultural lands. These two types of land are also covered by the provisions of the Act. In Land Revenue Assessment Rules 1929 which were framed by the Governor General in exercise of the powers conferred by Section 60 of the Punjab Land Revenue Act, 1887 on December 23, 1929, by notification No.6073-R dated December 23, 1929 under Rule 2, Sub-rule (2), it is stated that :
(2) The most important classes of uncultivated land are as follows :-
(a) banjar jadid : land which has remained unsown for
four successive harvests;
(b) banjar qadim : land which has remained unsown for eight
successive harvests ; and
(c ) ghair mumkin : land which has for any reason
become un-cultivable, such as land under roads,
buildings, stream, canals, tanks, or the like, or land
which is barren, sand or ravines.''
10 The counsel for the petitioners, on the aspect of waste lands, has also relied
upon the judgment reported in the case of State of Gujarat Vs Gujarat Revenue Tribunal & Ors. AIR 1980 SC 91 and further relied upon the judgment passed by the Ld. ADJ, Delhi in LAC No.8 of 1969 UOI Vs Gaon Sabha Mahipal Pur in support of his arguments on the aspect of right, proprietory right. Whereas, the counsel for respondents have argued that the petitioners are not the interested persons in the land in question as per the provisions u/s 18 of the LA Act. The word 'claiming' is important in section 3 of the LA Act which signifies that if any person interested in the land acquired by the Govt. may file the claim but the petitioners have not preferred to file the claim or objections, if any, for their compensation before the LAC. The petitioners are also well aware and having the knowledge of the award in question and the proceedings held before the LAC since the time when the possession of the land in question was taken over by the Govt. The counsel for the respondents have relied upon the judgment reported in the case of Bashirudin & Ors Vs UOI & Ors. 2006 IX AD (DELHI) 734 wherein it was held by the Hon'ble High Court of Delhi that the land acquisition proceedings commenced with issuance of section 4 notification on 25.11.1980 cannot be sought to be challenged in 2000 after a gap of nearly two decades, particularly where there is no plausible explanation whatsoever in petition. It was further held that award already been made and petitioners no longer in possession and further the petitioners also, on their own showing, did not file any objections u/s 5 A of the Act. The counsel for the respondents have further relied upon the judgment reported in the case of Ram Niwas & Ors. (Shri) Vs Lt. Governor & Ors. 2007 VIII AD (Delhi) 493 wherein it was held by Hon'ble Mr. Justice Vikramjit Sen of the High Court of Delhi that persons who have not filed objections u/s 5 A of the LA Act cannot be allowed to take advantage of their default. If petitioners would have had any grievance against section 6 declaration, they would have laid challenge to the same. The counsel for the respondents have also relied upon the judgment reported in the case of Yash Pal Singh (Shri) Vs UOI & Ors. 2006 IX AD (DELHI) 442 on the point of limitation and also the copy of the award/ judgment dt. 28.09.2007 passed by this reference court in the similar reference in LAC No.67/1/06 titled as Satya Chowdhary & Ors.
Vs UOI & Anr. which is Mark-A wherein the aforesaid aspects have also been discussed in detail by this court.
11 As per the statement U/s 19 of the LA Act, the petitioners have not been shown as the recorded owners whereas the Gaon Sabha has been shown as the recorded owner. Further, the petitioners have not filed any document of proprietory right or ownership of the land in question. In LAC No.131/1/07, PW1, in his cross examination, has also admitted that as per revenue record, the petitioners are not the recorded owners of the land in question. In LAC No.131/1/07, PW1 has further admitted during his cross examination that the names of the petitioners are not entered in khatauni, khasra Girdawaries, etc. of the revenue department. PW1 has specifically deposed in his cross examination that he cannot produce any document in favour of his father in regard to the ownership of the land vide award no.1227. PW1 has also admitted that he has never filed any objection before the LAC and even otherwise, the petitioners have not filed any claim for enhancement of compensation before the LAC. There is no rebuttal by the petitioners to the evidence led by the respondents. Therefore, it emerges from the materials placed on record, evidence led by the parties and the aforesaid judgments relied upon, the notification u/s 4 of the LA Act issued on 05.03.1960 followed by the declaration u/s 6 of the LA Act on 05.03.1960, possession of the land taken over by the Govt., award announced on 22.11.1960 and the land in question vested with the Gaon Sabha which was later on handed over to the Govt., no objection or claim filed by the petitioners since the petitioners are not the interested persons and even otherwise, there is delay of about 33 years in filing the reference petition u/s 18 of the LA Act. Thus, I hold that the petitioners are not the interested persons, the petitioners have not proved on record their ownership and have got no right, title or interest in the land in question and even otherwise, this reference petition is highly barred by time and not maintainable. This issue is answered accordingly.
ISSUE NOS. 2 & 3 12 Both the issues are inter-connected and I shall decide both the issues together. The onus to prove these issues is upon the petitioners and the respondents. It has been held in several judgments of the Hon'ble Supreme Court as well as the Hon'ble High Court of Delhi that while assessing the market value of the land which is sought to be acquired by the government, situation, nature, potential/ user and neighbouring land, etc, is to be considered. In this context, I would prefer to rely upon the judgments of the Hon'ble Supreme Court of India as well as the Hon'ble High Court of Delhi. The basic test was laid down by the Hon'ble Supreme Court in Special Dy. Collector & Anr. Vs Kurra Sambasiva Rao & Others, AIR 1997 SC 2625 and it was held that :
''The court is required to keep at the back of its mind that the object of assessment is to arrive at reasonable and adequate market value of the lands. In that process, though some guess work is involved. Feats of imagination should be eschewed and mechanical assessment of the evidence should be avoided. Even in the absence of oral evidence adduced by the Land Acquisition Officer or the beneficiaries, the judges are to draw from their experience the normal human conduct of the parties and bona fide and genuine sale transactions are guiding star in evaluating the evidence. Misplaced sympathies or undue emphasis solely on the claimants right to compensation would place very heavy burden on the public exchequer to which other everyone contributes by direct or indirect taxes'' In Spl. Tehsildar, Land Acqn. Vishakhapatnam Vs Smt. A. Mangala Gowri AIR 1992 Supreme Court 666, it was held by the Hon'ble Supreme Court of India that :
''In determining the market value of the land, the price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land possessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notification would supply the date to assess the market value. Where there were bona fide and genuine sale transactions in respect of the same land under acquisition wherein the claimant who was vendee had sold at Rs.5 per sq. yard, the High Court would not be justified in excluding such transactions and placing reliance on award of some other land for awarding compensation at the rate of Rs.10 per sq. yard, within a time lag of nine months from the bona fide transaction by seller.'' In the case of Shakuntalabai (Smt) & Ors. Vs. State of Maharashtra, reported as (1996) 2 SCC 152 wherein it was held by the Hon'ble Supreme Court of India that when on record there is evidence of the value of the acquired land itself, then it is unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent land. The relevant portion of the aforesaid judgment reads as under :
''It is seen that if there is evidence or admission on behalf of the claimants as to the market value commanded by the acquired land itself, the need to travel beyond the boundary of the acquired land is obviated. The need to take into consideration the value of the lands adjacent to the acquired land or near about the area which possessed same potentiality to work out the prices fetched therein for determination of market value of the acquired land would arise only when there is no evidence of the value of the acquired land. In a case where evidence of the value of the acquired land itself is available on record, it is unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent lands.''
13 In the present reference, the LAC has fixed the market value of the land acquired vide the notification dt. 05.03.1960 u/s 4 of the LA Act as per the categorization of the land as discussed above. The petitioner, in support of his case for enhancement in compensation, has adopted the same evidence as led in the similar leading reference in LAC 131/1/07 titled as Satya Choudhary & Ors. Vs UOI & Anr. wherein the petitioners have tendered in evidence the copy of the judgment dt. 23.09.1997 passed by the then Ld.ADJ, Delhi in LAC No.1/95 titled Satya Chowdhary and Ors Vs UOI & DDA as Mark-A wherein the reference u/s 28-A (3) of the LA Act was answered in respect of the land situate in village Shakurpur, Delhi acquired vide the notification dt. 13.11.1959 u/s 4 of the LA Act. Further, the petitioner has also relied upon the certified copy of the judgment dt. 26.10.1984 passed in RFA No.35/82 in Siri Kishan & Ors. Vs UOI & etc. which has also been tendered in evidence as Ex.PW1/4 in LAC No.131/01/07 entitled Satya Chowdhary and Ors Vs UOI & Anr wherein, the Hon'ble High Court of Delhi has fixed the market value of the land at Rs.7,500/- per bigha in addition to statutory benefits in view of the reasons recorded in Ram Mehar Vs UOI RFA No.409/71 decided on 15.10.1979. However, the petitioners herein have not proved on record their right, title or interest in the land in question and even otherwise, the reference petition has been filed much beyond the period of limitation as prescribed under the provisions of the LA Act, therefore, the petitioners are not entitled to enhancement in compensation of the land in question in the present reference. These issues are answered accordingly.
RELIEF 14 In view of my findings on the above issues, the petitioners have not proved on record their right, title or interest of the land in question and the petition u/s 18 of the LA Act has been filed much beyond the period of limitation as prescribed under the provisions of the LA Act, therefore, the petitioners are not entitled to enhancement in compensation of the land in question. This reference is answered accordingly.
A copy of this award be sent to the concerned LAC for his information. There shall be no order as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open court ( YASHWANT KUMAR )
on 23.10.2008 ADL.DISTRICT JUDGE (LAC)
DELHI
LAC No. 132/1/07
23.10.2008
Present- None
Vide separate award dictated and announced in the open court, this reference is answered accordingly.
A copy of this award be sent to the concerned LAC for his information. There shall be no order as to costs. Decree sheet be prepared accordingly. The file be consigned to Record Room.
( YASHWANT KUMAR ) ADJ/LAC/DELHI/23.10.2008