Delhi District Court
( Through The Ld. Counsel Sh.Deepak ... vs Union Of India on 29 April, 2008
1
IN THE COURT OF SHRI YASHWANT KUMAR :
ADDITIONAL DISTRICT JUDGE (LAC) : DELHI
LAC No. : 204/1/07 AWARD No. : 148/1980-81
Old No. : 141/82 VILLAGE : Hauz Rani, Delhi
In the matter of :
M/s Delhi Towers (Private) Ltd.,
115, Ansal Bhawan, Kasturba Gandhi Marg,
New Delhi
through Sh.Sushil Ansal, Managing Director
( Through the Ld. Counsel Sh.Deepak Khosla )
...Petitioner
Versus
1 Union of India
2 The Land Acquisition Collector, Delhi
(Through the Ld. Counsel Sh.Rajesh Raina & Sh.Sanjay Diwan )
...Respondents
Reference received on : 04.09.1982 Award reserved on : 29.04.2008 Award announced on : 29.04.2008 AWARD REFERENCE U/S 18 OF THE LAND ACQUISITION ACT 1 Vide notification No.F7(57)/76-L&B(1)(2)(3) dt. 16.10.1980 respectively U/s 4, 6 & 17 of the Land Acquisition Act (hereinafter referred to as the LA Act). The land including the land of the petitioner situate in the revenue estate of village Hauz Rani, Delhi was acquired by the Govt. for extension of Govt. farm. The Land Acquisition Collector (hereinafter referred to as LAC), after completing all the requirements as provided under the Act, 2 announced the award bearing No.148/1980-81 and awarded the compensation @ Rs.10,000/-per bigh besides statutory benefits. 2 Feeling dissatisfied with the quantum of compensation awarded by the LAC, the petitioner herein filed petition U/s 18 of the LA Act for proper adjudication/market value which was sent to the reference court.
3 In the reference petition, the petitioner sought the enhancement of compensation on the grounds that the petitioner is the owner in possession of the land bearing khasra nos.407 (2-
05), 408 (2-09), 424 min (1-09) which has been acquired vide the above said award. The LAC has awarded the compensation @ Rs.10/- per sq. yard besides solatium @ 15% and interest @ 6% p.a. The compensation assessed and awarded by the LAC is too low, inadequate, unreasonable, unjust, arbitrary, illusory and is not acceptable to the petitioner. It is further stated that the land of the petitioner is of great potential value as agricultural, industrial and residential site. The land of the petitioner is surrounded by various posh residential colonies viz. Panch Sheel Enclave, Press Enclave, Malviya Nagar Extension, Saket, Sarvodaya Enclave, etc. The land of the petitioner is very fertile and is also of great potential value as agricultural land as it gives three crops in a year. All sorts of civic amenities such as Bus service, school, college, hospital, telephone, water supply and electric supply are easily 3 available to the land of the petitioner. All around the land of the petitioner, various posh farm houses have been developed. On these grounds among others, the petitioner has filed this reference petition claiming @ Rs.250/- per sq. yard besides other statutory benefits.
4 The UOI has filed written statement dt. 16.11.1982 wherein, UOI has raised the objections on the ground that the Delhi Land Reforms Act is applicable to the land in dispute, therefore, it reduces the market value of the land considerably. The petitioner is not owner. M/s G.S.Dugal & Co. and M/s Elbee Dugal Engg. Co. (P) Ltd are necessary parties and therefore, they may be impleaded as respondents. The compensation is disputed and has been sent to the court of Ld. ADJ, Delhi u/sec. 30-31. The LAC has correctly assessed the compensation keeping in view all the relevant facts and law. The other averments made in the reference petition have been denied except matter of record. Further, after revival of the proceedings of this reference, UOI has again filed written statement on 07.01.2008 stating the facts that Delhi Land Reforms Act is applicable to the land in dispute. The correctness of the khasra nos., their area and the extent of share of the petitioner therein 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 petitioner has preferred claim. The land in question is 4 not surrounded by any developed or un-developed colony and can only be used for agriculture. 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. It is also stated that the compensation has been legally and correctly assessed by the LAC and the same is adequate & just.
5 Vide order dt. 30.11.1982 of the Ld. Predecessor Court, the proceeding of this reference petition was stayed sine die since the reference u/sec. 30-31 of the LA Act was pending. While adjourning this reference sine die, the counsel for the parties also present and it was directed by the Ld. Predecessor Court that the claimants will not be entitled to interest for the period of stay. Thereafter, an application dt. 26.09.2007 u/sec. 151 CPC for revival of the proceedings of this reference u/sec. 18 of the LA Act was filed by the petitioner on 28.09.2007. Vide order dt. 05.11.2007 of this reference court, the proceedings of this reference u/sec. 18 of the LA Act were revived to its original number.
6 Vide order dt. 12.11.2007, Forest Department, being the beneficiary of the acquired land, was impleaded as necessary party. Thereafter, upon the request of the counsel for Forest Department, notice of this reference petition was also issued to Development Department.
57 The counsel for Forest & Development Department has filed separate replies to the revival application treating the said replies as also replies to the claim petition of the petitioner stating the facts among others that the land in question in village Hauz Rani was acquired by Development Department for setting up a Govt. Seed Farm. During 1994, only part of the acquired land was handed over to Forest Department to be developed as a City Forest. The details of the land handed over to the Forest Department have not been available and development department as failed to make available records in this respect despite repeated requests. Therefore, the burden of paying enhanced compensation rests with development department who intended the land and incurred the liability. Therefore, the name of the respondent, Deputy conservator of Forests (South), Department of Forests & Wild Life has been sought to be deleted from the array of the parties. It is also stated that the office of the Development Commissioner made a detailed enquiry and status reported dt. 21.04.2008 of Seed Farms, Hauz Rani, New Delhi which was prepared by the Executive Magistrate on the basis of the Khasra Girdawari submitted by the Field Inspector/ Kanungo dt. 21.04.2008, wherein the complete details of khasra numbers & the land acquired in the aforesaid award is given. 6 8 On the pleadings of the parties, the following issues were framed by this reference court on 25.04.2008 which are as under:
1 Whether the petitioner has any right, title or interest in the land in question? OPP 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 petitioner is entitled to enhancement in compensation, if so, to what amount? OPP 4 Relief
9 The counsel for the petitioner, in support of the claim of the petitioner, has tendered in evidence the certified copy of the judgment dt. 11.05.2007 passed by this reference court in LAC No.159/2/06 titled UOI Vs Nawaz Khan & Ors. as Ex.P-1, copy of the judgment dt. 10.09.1994 passed by the Hon'ble High Court of Delhi in RFA No.161/83 titled Mohd. Khalil & Ors. Vs UOI as Mark-A and an order dt. 27.09.2001 passed by the Division Bench of Hon'ble High Court in CM No.1154/85 in RFA No.161/83 as Mark-B. Whereas, the counsel for the respondents have tendered in evidence the copy of the award No. 148/1980-81 of village Hauz Rani, Delhi as Ex.R-1.
10 I have heard the Ld.Counsel for the parties and have perused the entire records. My issue-wise findings are as under:- 7
ISSUE NO.1
11 The onus to prove this issue is upon the petitioner. The petitioner has claimed in the reference petition that he is owner and in possession of the land bearing khasra nos.407 (2-
05), 408 (2-09), 424 min (1-09) which has been acquired vide the award in question. Perusal of the statement u/sec. 19 of the LA Act forwarded by the LAC also reveals the khasra nos.407 (2-5), 408 (2-09) & 424/2 (1-09) of the land situate at village Hauz Rani, Delhi which was acquired vide the award in question. The counsel for the petitioner to prove his right, title and interest of the land in question, has filed & relied upon the certified copies of the memorandum and the award/ judgment dt. 11.05.2007 passed by this reference court in LAC No.159/2/06 titled UOI Vs Sh.Nawaz Khan & Ors. as Ex.P-1. In the memorandum, the names of 16 IPs including the petitioner herein as IP no.3 have been mentioned. The relevant part of the award dt.11.05.2007 in Ex.P-1 is reproduced as under :
''4 A perusal of Naqsha Muntzamin pertaining to village Hauz Rani, Delhi vide award no.148/1980-81 filed by the LAC reveals that Sh.Nawaz Khan S/o S.Teja has been shown as the owner/ bhumidar of the land bearing khasra no.424/1 (1-08) to the extent of 27th share; custodian has been shown as the owner/ bhumidar of the land bearing khasra no.424/2 (1-09); Mohd. Dadrish & Wahibuddin - sons of Nawaz khan have been shown as the owners/ bhumidhars of the land bearing khasra no.409 (2-05) to the extent of 1/3rd share each; Sh. Mahavir Prashad S/o Sh.Parmanand has been shown as the owner/bhumidhar of the land bearing khasra no.407 (2-05) and 8 408 (2-09) to the extent of 3/8th share each; Sh.Ayub Khan, Mohd.
Safi & Yaqub Khan - all sons of Mohd. Anbha have been shown as the owners/ bhumidhars of the land bearing khasra nos.407 (2-05) and 408 (2-09) to the extent of 1/6th share each and Sh.Sabhey S/o Nawaz Khan has been shown as the owner/ bhumidhar of the land bearing khasra nos.403/2 (1-18) & 402/2 (1-14) to the extent of ½ share. The nature of the aforesaid land is shown as Chaahi land. The IPs claiming their interest in the acquired land were given opportunities by the reference court so that they may appear and contest their claims but the IP no.4 on the one hand and the IP nos.2, 3, 15 & 16 have appeared through their counsel and contested their claims. Despite opportunities given, IP no.4 has failed to file its evidence.
5 The IP nos.2 & 3 in their claim petition have stated that they were owners in possession of the entire land bearing khasra nos.424/1 (1-8), 424/2 (1-9), 409 (2-5), 407 (2-5), 408 (2-9), 403/2 (1-18), 402/2 (1-14) of village Hauz Rani, Delhi at the time of the award and no other claimant has any right, title or interest in the compensation or the land. It is also stated that with respect of khasra no.409 in the Naqsh Muntzamin at Sr.No.191,192, 193, Mohd. Idrish & Wahabuddin are shown as sons of Nawaz Khan each having 1/3rd share in khasra no.409 but this entry is incorrect and Sh.Nawaz Khan has two sons namely, Mohd. Idrish and Wahabuddin and a mutation no.358 of 1974 was sanctioned on 31.05.1984 in favour of the said sons. Mohd. Idrish and Wahabuddin sold their ½ share each in khasra no.409 (2-5) in favour of Sh.Om Prakash/ IP no.2 vide registered sale deed dt. 16.05.1980 & 17.05.1980 respectively. Mutation of sale could not be sanctioned before the announcement of the award, therefore, compensation was assessed by the LAC in the name of vendors. As far as khasra nos.407 (2-5) and 408 (2-9) are concerned, the compensation for these khasra numbers has been assessed in the name of Mahabir Prashad to the extent of 3/8th share and Iyub Khan, Mohd. Safi & Yaqub Khan each to the extent of 1/6th share. However, Sh.Mahabir Prashad had transferred his 3/8th share by means of a registered sale deed dt. 16.06.1980 in favour of Om Prakash/ IP no.2 herein as such the compensation for 3/8th share assessed in the name of Sh.Mahabir Prashad is payable to IP no.2. 9 Likewise, Iyub Khan, Mohd. Safi & Yaqub Khan had also transferred their ½ share jointly by registered sale deed dt. 13.06.1980 in favour of M/s Delhi Towers Pvt. Ltd., therefore, the said company is entitled to the compensation assessed in the name of Sh.Iyub Khan, Mohd. Safi & Yaqub Khan.
6 Further, Sh.Sabbe in whose favour compensation has been assessed with respect of khasra no.403/2 (1-18) & 402/2 (1-14) had transferred his interests in the said land to Smt.Bimla Devi/ IP no.15 herein vide registered sale deed who thereafter transferred her interest in the land to Sh.Om Prakash/ IP no.2 vide registered sale deed dt. 23.05.1980, therefore, the compensation assessed in the name of Sh.Sabbe is also payable to IP no.2. As per the IP nos.2 & 3 sons of Nawaz Khan transferred 1/4th share in khasra no.424 to the extent to 1/4th in the name of M/s Delhi Towers Pvt. Ltd. vide the registered sale deed and in khasra no.424/1 and 13 ½ /65 shares were transferred by the owners in favour of Sh.Mahabir Prashad who in turn sold the shares purchased by him to Sh.Om Prakash/ IP no.2 vide registered sale deed dt. 16.06.1980. Mohd. Idrish and Wahabuddin sold their 13 ½ /30 share in khasra no.424/1 and 13 ½ /65 share in khasra no.424/2 to Sh.Om Prakash/ IP no.2 vide registered sale deed dt. 16.05.1980 and as such compensation for the said share is also payable to IP no.2. According to IP nos.2 & 3, Mohd. Idrish and Wahabuddin also transferred their 13 ½ /30 in khasra no.424/1 and 13 ½ /65 share in khasra no.424/2 in favour of the IP no.2 vide registered sale deed dt. 17.05.1980. The aforesaid sale deeds have been filed on record by the said IPs. IP no.16 also filed the claim petition whereby he has specifically stated that he does not claim any right, title or interest in any of khasra numbers subject matter of this reference or compensation thereof referred to the court. The other IPs have failed either to contest their claims or to file and lead their evidence. Whereas, IP nos.2 & 3 have proved on record by leading their evidence through sale deeds that they have acquired the right, title and interest in the property in question, therefore, the IP nos.2 & 3 are entitled to receive the compensation as per their shares discussed above in respect of the land in question.'' 10 12 Since the petitioner herein has proved his right, title and interest of the land in question according to his shares in the reference u/sec. 30-31 of the LA Act as discussed above in Ex.P-1, therefore, the petitioner is entitled to enhancement in compensation of his share in the acquired land, if awarded by this reference court. This issue is answered accordingly. ISSUE NOS.2 & 3 13 Both the issues are inter-connected and I shall decide both the issues together. The onus to prove these issues is upon the petitioner and the respondents. The petitioner has sought enhancement in compensation awarded by the LAC on the grounds mentioned in the reference petition which are not repeated herein for the sake of brevity. 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 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 11 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.'' 12 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.''
14 Let us examine the case of the petitioner herein after applying the aforesaid principles laid down by the Hon'ble Supreme Court as well as the Hon'ble High Court of Delhi. The counsel for the petitioner, in support of his evidence for enhancement in compensation, has relied upon the copy of the judgment dt. 10.09.1984 passed by the Hon'ble High Court of Delhi in RFA No.161/83 titled Mohd. Khalil & Ors. Vs UOI as Mark-A. In Mark-A, the land situate at village Hauz Rani, Delhi was acquired vide the same notification dt. 16.10.1980 u/sec. 4, 6 13 & 17 of the LA Act. The LAC assessed the market value of the acquired land @ Rs.10,000/- per bigha besides statutory benefits. On reference, the Ld. ADJ, Delhi fixed the market value @ Rs.19,000/- per bigha. The Hon'ble High Court of Delhi further enhanced the compensation and fixed the market value of the land @ Rs.30,000/- per bigha as on 16.10.1980. The counsel for the petitioner has further relied upon the copy of the order dt. 27.09.2001 passed by the Hon'ble DB of the High Court of Delhi in C.M. No.1154/85 in RFA No.161/83 as Mark-B. In Mark-B, the Hon'ble High Court has held that :
''In view of the fact that reference court answered the reference after 30.04.1982 and in view of the decision of Supreme Court in Union of India & Another Vs. Raghubir Singh (dead) by LRs etc. AIR 1989 SC 1933 the claimant will be entitled to benefit of enhanced solatium and interest. Accordingly, prayer made in the application is allowed. Claimant is held entitled to solatium @ 30% instead of 15% and interest in place of 6% p.a. to 9% p.a for a period of one year from the Collector taking possession and thereafter @ 15% p.a. till payment.'' 15 In the present reference, the land situate at village Hauz Rani, Delhi was acquired vide the same notifications dt.
16.10.1980. Thus, my decision is also supported with the aforesaid judgment dt. 10.09.1984 in RFA no.161/83 which is mark-A. Therefore, the market value of the acquired land as mentioned in the statement U/s 19 of the LA Act is fixed @ 14 Rs.30,000/- per bigha as on the date of notification U/s 4 of the LA Act i.e. 16.10.1980. The petitioner is entitled to enhanced compensation of the land in question.
16 Let us further examine whether the petitioner is entitled to interest for the stay period. Vide order dt. 30.11.1982 of the Ld. Predecessor Court, the proceeding of this reference petition was stayed sine die since the reference u/sec. 30-31 of the LA Act was pending. While adjourning this reference sine die, the counsel for the parties also present and it was directed by the Ld. Predecessor Court that the claimants will not be entitled to interest for the period of stay. The counsel for the petitioner has argued that on 30.11.1982, the petitioner was not present for giving the statement that the petitoner shall not claim the interest for the stay period. However, the counsel for the respondents have also argued that since the counsel for the parties were present at the time of passing the order on 30.11.1982, therefore, the petitioner is not entitled to interest for the stay period. The counsel for the petitioner, in support of his arguements, has referred the judgment dt. 29.07.2005 in RFA No.360 of 2001 reported in the case of Chander Vs UOI & Anr. 122 (2005) DLT 517 (FB). The Hon'ble High Court of Delhi in the aforesaid judgment considered at length the distinction between inviting order of court and court making order of its own. The Hon'ble High Court held that:15
''In a case where the court has made an order of its own of staying the proceedings, then the claimant should not be asked to suffer. In such a situation it was open to the other side to move the higher forum with the request to proceed with the matter so as to avoid the payment of amount of interest for the interregnum. In the case of M/s Lekh Raj and Co. V. Union of India and others, Civil Appeal No.5690 of 1985 decided on 24.03.1992, the Apex Court in a somewhat similar situation, where the Court had stayed proceedings of its own and refused to grant interest during the interregnum for the period 17.11.1968 to 23.07.1974 as there was a stay order, pointed out that, ''Though the grant of interest under section 28 of the Land Acquisition Act is discretionary with the Court but in the facts and circumstances of this case, we are of the view that the discretion has wrongly been exercised by the High Court. A dispute of apportion of compensation under section 30 of the Act is the progency of the Act and since the court thought to stay the proceedings for enhancement of compensation, the act of the court in these circumstances could not go to prejudice the accrual of interest on compensation which was kept retained by the State in the interval''. It is in view of this the Apex Court allowed interest for the period for which it was declined...'' It was further held that :
''In view of what we have discussed hereinabove, we hold that the principle laid down in the case of Union of India Vs Rajiv Gupta (Supra) for payment of interest during the period the proceedings remained stayed at the instance of the claimant with the statement that he shall not claim interest during the period of stay, interest is required to be granted is not in consonance with law. This court is of the opinion that when a claimant requested the Court to stay the proceedings with the statement that the party shall not claim any interest during the period of stay, the party cannot claim any interest for such period.'' 16 17 In the present reference, it reveals from the order dt.
30.11.1982 passed by the then Ld. ADJ, Delhi that no specific statement was made either by the petitioner or the counsel for the petitioner that the petitioner shall not claim any interest during the period of stay. The facts and circumstances of the present case are squarely covered by the aforesaid judgment of the Hon'ble High Court of Delhi. Thus, in view of the said judgment of the Hon'ble High Court of Delhi, I hold that the petitioner is also entitled to the interest for the stay period on the enhanced compensation. These issues are answered accordingly. RELIEF 18 In view of my findings on the above issues, the market value of the land in question is fixed @ Rs.30,000/- per bigha as on 16.10.1980 i.e. the date of notification u/sec. 4 of the LA Act. Therefore, the petitioner is entitled to enhancement in compensation of the acquired land in question situate at village Hauz Rani, New Delhi as per his share mentioned in the award dt. 11.05.2007 passed the reference court in LAC No.159/2/06 titled UOI Vs Nawaz Khan & Ors. and also according to the statement U/s 19 of the LA Act forwarded by the LAC. Besides it, the petitioner shall also be entitled to get solatium U/s 23 (2) of the LA Act @ 30% on the enhanced amount of compensation and interest U/s 28 of the LA Act @ 9% per annum for the first year from the date of dispossession and @ 15% per annum on the difference 17 between the enhanced compensation awarded by this court and the compensation awarded by the LAC for the subsequent period till the payment. The petitioner is further entitled to interest on solatium and additional amount in terms of judgment of Hon'ble Supreme Court reported as Sunder Vs UOI reported in DLT 2001 (SC) 569. This reference is answered accordingly.
A copy of this award be sent to the concerned LAC to make the payment of the enhanced amount of compensation to the petitioner according to his share within three months from today. While making the calculations due regard shall be made to deduct the amount initially arrived at by the LAC to avoid any duplication. There shall be no order as to costs. Decree sheet be prepared accordingly. The file be consigned to Record Room.
Announced in open court ( YASHWANT KUMAR )
on 29.04.2008 ADDL. DISTRICT JUDGE (LAC)
DELHI
18
LAC No. 204/1/07
29.04.2008 (At 04.00 p.m.)
Present- None
Vide separate award dictated and announced in the open court, this reference is answered accordingly.
A copy of this award be sent to the concerned LAC to make the payment of the enhanced amount of compensation to the petitioner according to his share within three months from today. While making the calculations due regard shall be made to deduct the amount initially arrived at by the LAC to avoid any duplication. There shall be no order as to costs. Decree sheet be prepared accordingly. The file be consigned to Record Room.
( YASHWANT KUMAR ) ADJ/LAC/DELHI/29.04.2008