Delhi District Court
Ms. Bimla Devi vs Union Of India on 7 March, 2020
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR, ADDITIONAL
DISTRICT JUDGE-04, CENTRAL, TIS HAZARI COURTS, DELHI
LAC No. 27/17
MS. BIMLA DEVI
THROUGH SPA
SH. NARAIN DASS AGGARWAL
S/O LATE BRIKH BHAN AGGARWAL
R/O 351, DEEPALI
PITAMPURA, DELHI ......Petitioner
Versus
1. UNION OF INDIA
THROUGH LAND ACQUISITION COLLECTOR
DISTT. NORTH, 1 KRIPA NARAIN MARG
DELHI
2. MUNICIPAL CORPORATION OF DELHI
(DISTRICT NORTH)
TOWN HALL, DELHI ......Respondents
Date of Institution : 01.11.2017
Date of judgment reserved on : 07.03.2020
Date of judgment : 07.03.2020
Petition for reference under Section 18 of Land Acquisition Act against the
findings and determination of market value of land structure loss of earning,
shifting etc. made by the LAC vide his Award
JUDGMENT
1. The present reference petition under Section 18 of Land and Acquisition Act, 1894 arising against Award No. 12/LAC/N/2012-13 dated 31.05.2012 which is Ex.PW1/R2 on record moved by petitioner of the acquired property no. 6780, Pulbangash, Delhi consisting of basement, ground, first and second floors for plinth area 7.75 per sq. mtrs. on each floor. It is reported in reference filed by LAC dated 16.10.2017 that the share of the petitioner is full in the land whose nature is commercial (hereinafter referred as reference property). It is noted that in the reference u/Sec. 30-31 of LA Act filed by LAC the name of Ms. Bimla Devi is mentioned though the present reference only pertains to Sh. Narain Dass Aggarwal. The SPA is filed at the stage of final arguments by the petitioner in the name of Ms. Bimla Devi. The reference sent by LAC mention that Ms. Bimla Devi was found owner and Sh. Naraindass Aggarwal had given NOC for payment hence the present reference petition is prepared in the name of Ms. Bimla Devi through her SPA Sh. Naraindass Aggarwal and Ahlmad is directed to change the title accordingly.
2. The petitioner is carrying business of sweet shop and milk under the name an style of Aggarwal Sweet and Milk Bar as proprietor. The present petition is filed within 42 days of pronouncement of Award. The reference property is located near Kashmere Gate, Daryaganj, Subzi Mandi, Ashoka Market, Filmistan, Azad Market, Sadar Bazar, Chandni Chowk, Kingsway Camp, ISBT, G.T. Road and hospitals all of which are commercial area. It is situated at main Rani Jhansi road abutting Pulbangash Metro station and have advertising potential. Minimum market value is Rs.7,71,914/- per sq. mtr. The market price cannot be calculated on the basis of L&DO rates which are only serving purpose of calculation of stamp duty and not to determine the market price. Civil line area is about 2 km away where the weighted average is not less than Rs.6.5 lakhs per sq. mtrs. The Pulbangash Metro station has FAR of 400 and the capitalized value for 20 years of leasehold property comes to Rs.5 lakh per sq. mtrs. Shifting charges are not granted to the petitioner. Petitioner is also entitled to damage on account of severance. The acquired land has full facilities and amenities of water, electricity, hospitals, schools, colleges and banks and University of Delhi has stone's throw distance. The LAC has awarded incorrect value of Rs.55,200/- per sq. mtr on the basis of circle rates of Revenue Department, Govt. of NCT of Delhi in the year 2007 which are for the purpose of stamp duty only. Citation are relied by petitioner at para (h) of the petition for determining the mode of computing the compensation which are reproduced hereasunder:
1. P. Ram Reddy & Ors. Appellants v. Land Acquisition Officer, Hyder reported as 1995 (2) SCC 305
2. Jawajee Nagnatham v. Revenue Divisional Officer, Adilabad, A.P. & Ors. Reported as (1994) 4 SCC 595
3. Special Land Acquisition Officer, Davangre v. P. Veerabhadarappa & Ors.
Reported as (1984) 2 Supra Court Cases 120 2.1 It is submitted that application of circle rates for calculation of market value is held illegal for which citation relied upon by the petitioner referred at para no. (I) of the petition which are reproduced hereasunder:
1. U.P. Jal Nigam Lucknow through its Chairman and another v. Kalra Properties (P) Ltd., Lucknow and others reported as (1996) 3 SCC 124
2. P. Ram Reddy etc. v. Land Acquisition Collector, Hyderabad
3. Land Acquisition Collector Eluru and others v. Jasti Rohini (Smt) and others reported as (1995) 1 SCC 717
4. Jawajee Nagnatham v. Revenue Divisional Officer Hence petitioner has demanded enhanced compensation at market value of Rs.5 lakh per sq. mtr. Rs. 15 lakh as value of structure and Rs.25 lakh as severance charges, Rs.10 lakh as cost of fixtures and fittings other than statutory and additional benefits. Vide Ex.PW1/R2 it is recorded that valuation of super structure could not be completed till the time of making of Award which would be subject matter of supplementary Award.
3. In the written statement filed by LAC/UOI it is submitted that the Khasra number to the extent of statement u/Sec. 19 of LA Act, 1894 is admitted. The present reference is barred by limitation drawn u/Sec. 18(2) of LA Act, 1894. The order passed by Land Acquisition Collector is reasoned based on consideration of market value on the date of notification u/Sec. 4 of LA Act, 1894. Hence it is submitted that the present petition may be dismissed.
4. In the written statement/objections filed by North DMC it is submitted that the LAC has also notified supplementary Award in respect of structures. There is no valuation carried on by PWD, GNCTD, CPWD plinth area rates. The claim is barred by limitation as the objections has to be filed within six months from the date of passing of Award by the Collector. The compensation is adequately awarded by LAC. It is submitted that the citation relied upon by the petitioner are not reliable and distinguishable. The area of petitioner cannot be compared with the area mentioned in reference petition at Ground-K. It is submitted that the present petition does not lie and other averments of petitioners are denied. Hence it is prayed that the petition may be dismissed.
5. On the pleadings of the parties and averments made issues were framed in the petition on 30.08.2018:
1. Whether the petitioner is entitled to market value of acquired land @ Rs.5 lakh per sq. mtr., Rs.15 lakh for structure, Rs.25 lakh for severance charges and Rs.10 lakh for cost of fixtures and fittings? OPP
2. Whether the present reference petition is barred by time? OPD-R2
3. Relief.
6. Sh. Vijender Kumar Aggarwal is examined as PW-1 being the sole witness and recorded before ld. Court Commissioner. The evidence of petitioner is closed vide separate statement of ld. Counsel for petitioner on 25.07.2019. The evidence on behalf of Union of India/respondent no. 1 was tendered by ld. Counsel Sh. S.K. Puri as RW-2 for R1. Respondent no. 2/North DMC has got examined the sole witness Sh. Brahmanand Perai, Assistant Commissioner in Land & Estate Deptt. as RW-1 for R2 and the evidence of respondents was closed on 10.10.2019 respectively. Final arguments are submitted by both the parties.
7. Final arguments are heard and record perused. Issuewise findings as follows:
8. ISSUE NO. 11. Whether the petitioner is entitled to market value of acquired land @ Rs.5 lakh per sq. mtr., Rs.15 lakh for structure, Rs.25 lakh for severance charges and Rs.10 lakh for cost of fixtures and fittings? OPP
8.1 It is submitted by the ld. Counsel for petitioner that vide Award Ex.PW1/R2 compensation was given to the petitioner. It is submitted that vide notification u/Sec. 4 of LA Act dated 20.04.2010 the area is mentioned as Pulbangash, Rani Jhansi Road. Vide notification dated 28.06.2010 u/Sec. 6 of LA Act the possession is deemed to have been taken by the LAC. The ld. Counsel for petitioner has referred at page 32 of the Award showing proximity of the area to St. Stephen hospital, Barf Khana, Civil Lines, Sadar Bazar. It is recorded that all the areas are full developed with multi storeyed buildings. The current land use is mentioned as commercial shops, offices and commercial establishments. The road is also mentioned as declared commercial vide the said notification. The Collector in the Award itself has awarded commercial rates.
8.2 The petitioner has relied on judgment titled Pankaj Bhardwaj v. UOI & Anr. vide LAC No. 3149/16 which is dated 26.08.2017 which has come in cross examination of PW-1 dated 25.04.2019 and hence for the purpose of identification the same is marked at the stage of final arguments Ex.PW1/4 which pertains to the same notification as mentioned at para no. 2 of the judgment. The location is same and the purpose for acquiring the land is same. The petitioner has relied on Ex.PW1/4 which is the copy of petition, statement of witness PW-1, PW-2, PW-3 and statement of ld. Counsel in case titled Pankaj Bhardwaj v. UOI & Anr. (supra). In the evidence of PW-2 Sh. T. Minz, Kanoongo the RTI obtained by petitioner herein were produced and which were discussed at para no. 29 of the judgment in Ex.PW1/4 wherein it was found that the acquired property is abutting properties acquired vide Award no. 8-12 and has similar market value. The RTI replies were produced in evidence by the petitioner also in case titled Ramesh Chander Gera v. UOI & Ors. In a reference petition u/Sec. 18 of LA Act decided on vide LAC no. 06/17 dated 31.10.2019. Hence on the ground of parity the evidence of RTI reply when the properties are situated near to each other under the same Award can be relied upon. It mentions the distance of the acquired property from Pulbangash metro station of DMRC and other properties all of which are abutted. The property acquired vide Award are at zero distance from Rani Jhansi road. In judgment dated 26.08.2017 in which both MCD and LAC was party has awarded the market value of the land @ Rs.2,14,280/- per sq. mtr for the notification dated 20.04.2010 u/Sec. 4 of LA Act. In the present case the notification u/Sec. 4 of LA Act is dated 20.04.2010 and notification u/Sec. 6 of LA Act is dated 28.06.2010. It is submitted by the petitioner that same instance of Nawab Ganj, Chandni Chowk, Delhi were considered and rejected which were very far from the acquired property. The MCD had went in appeal before Hon'ble High Court of Delhi however no stay is available for deposit of the decreed amount though MCD has not deposited the amount till date. Thereafter MCD went to Hon'ble Supreme Court of India in SLP no. 2023/2019 dated 15.07.2019 wherein directions are available in respect of MCD to deposit 50% of the enhanced amount without any security or guarantee with liberty to petitioner to withdraw the same.
8.3 It is submitted by the ld. Counsel for petitioner that in citation titled Krapa Rangiah v. Special Deputy Collector, Land Acquisition (1982) 2 SCC 374 it is held at para no. 3 that when the area are comparable and the situation being the same in both the cases then the rate for acquisition of the land in question must be the same as that awarded consequently and the compensation was enhanced accordingly. The relevant para is reproduced as under.:
3. Counsel for the State however contended before us that the Judgment under appeal according to him is a more reasoned one than the judgment of the High Court in which compensation at the rate of Rs. 9/-per sq. yd. has been awarded and on merits the rate of Rs. 7/-per sq. yd. at which the compensation has been awarded is justified and should not be interfered with. Having gone through both the judgments we are not impressed by the argument that the judgment of the High Court in the subsequent case in which compensation at the rate of Rs. 9/- was awarded is' not. a reasoned judgment or that it is any less reasoned than the judgment under appeal. The area being comparable, the situation also being the same and all the plots having been acquired under the self-same notification for Housing Scheme it seems to us proper that the same rate of compensation should be awarded to the claimant herein as was awarded by the High Court in Appeal No. 50 of 1970. We accordingly enhance the compensation granted to the claimant by Rs. 2/-per sq. yd. with consequential increase in solatium and interest.
There will be no order as to costs.
8.3.1 The petitioner has further relied on citation titled Nandram & Ors. v. State of Haryana JT 1988 (4) SC 260 wherein it is laid down at para no. 1 that the State cannot refuse to pay same rate in respect of lands acquired under the same notification same compensation awarded to the land owners whose similarly situated lands had been acquired under the same notification for the same purpose by the notification of the same date. The sale deed produced by the LAC is pertaining to the area Nawab Ganj, Azad Market and Civil Lines which are already rejected at para no. 30 of the said judgment and has been sub-judice before Hon'ble High Court of Delhi in appeal and for payment as per directions the matter is sub-judice in SLP No. 2023/2019 dated 15.07.2019. The above submissions regarding the sale deed of respondents was also considered and rejected in the case titled Pankaj Bhardwaj v. UOI in LAC no. 3149/16 vide judgment dated 26.08.2017. The said argument of the respondent was not accepted. The respondents cannot go against the Award already been passed by the LAC in view of bar u/Sec. 25 of LA Act that compensation cannot be granted lower than already awarded in the Award.
8.4 It is submitted by ld. Counsel for petitioner that the petition is within period of limitation and it is filed within 42 days from the date of pronouncement of the Award. Notice is given u/Sec. 52 of LA Act in which MCD did not appear and contested the notice. The present case is covered case in reference to judgment Pankaj Bhardwaj (supra). The sale deed Ex.R-7 pertains to area Chandni Chowk and sale deed Ex.R-5 pertains to area Azad Market which are not at all applicable to the facts of the present case. They are neither near nor similar to the area under consideration. The sale deed Ex.R-3 dated 10.11.2009 pertain to area Mohalla Bahargarh, Roshnara Road, Delhi-7 for land measuring 40 sq. yds for a sum of Rs.5,50,000/- whereby the second floor was sold. It is not shown that whether the said premises in Ex.R-3, Ex.R-5 and Ex.R- 7 were used for commercial purpose. It is settled law that even if the property is sold nearby even then it is required to see that how it is similar to the acquired property both in area and in its use. Further, the date of construction of suit property also has effect on it. The rate may vary even from one street to another street depending on the development carried out. Further, the acquired property of petitioner is on the main road situated at Rani Jhansi road abutting metro station. None of the sale deeds reflects that they are situated at main road as wide and populated as Rani Jhansi road. The respondents have failed to show the approximate distance of the above property to the property acquired. The acquired land is both in the nature of residential and commercial and it is admitted position of LAC that the commercial land rates are applicable and which were so awarded in the Award. The relevant citation is reproduced hereasunder:
It was held in case titled State of Maharastra v. Govind Rao Dashrath Patanga 2001 (SUPP) LACC 270 (Bombay) wherein it is held as under:
"It is common knowledge that even in the same village, no two lands, command same market-value. The lands abutting the main road or National Highway command higher market-value and as the location goes backward, market-value of interior land would be less even for the same kind of land. It is a settled legal position that the lands possessed of only similar potentiality or the value with similar advantages offer comparable parity of the value. It is common knowledge that the lands in the village spread over the vast extent. So all the lands cannot and should not be classified as possessed of same market-value. Burden is always on the claimant to prove the market-value."
8.5 Ld. Counsel for MCD has submitted that vide Ex.PW1/1(OSR) which is MPD 2021 pertain to Delhi mention the commercial streets, mixed use streets and pedestrian shopping streets. It is submitted that even when the road is declared commercial even then the premises may not be used for commercial purpose. It is noted that when the LAC itself has awarded the commercial rates after consideration of contention of both the parties then at this stage MCD is not permitted to go back on the same in view of citation titled Nandram (supra) and Section 52 of LA Act. The land in question is accepted as commercial property by the LAC and the rate offered to the petitioner by the LAC is for commercial property only in the Award Ex.PW1/R2 at page 34 where rate awarded by the LAC is Rs.55,200/- per sq. mtrs. for the area category "E". The compensation is awarded for land. The relevant citation from Hon'ble High Court of Delhi titled as Delhi Development Authority vs Ganga Singh on 11 July, 1980 Equivalent citations: 1980 CriLJ 1175, 18 (1980) DLT 354, 1981 RLR 186 is reproduced hereasunder:
(13) Exhibit DW 2/C is the copy of the receipt No. 765020 dated 24th November, 1962, by which the amount of Rs. 325.00 demanded by the Corporation in its letter Exhibit Dw 2/B was deposited by the landlady. From the documentary and oral evidence, noted above) it is evident that the prosecution has failed to cischarge its burden, namely, to prove that the building was put to non-conforming user from the year 1964. On the other hand the evidence supports the plea of the respondent that the building in question was being used for housing offices of the various concerns from 1961., i.e., prior to the coming into force of the Master Plan. The learned counsel for the Authority, however, contended that section 14 of the Act is a complete bar to any land or building being used for a purpose other than the one envisaged in the Master or Zonal Plan after the coming into operation of any of the plans in a zone and that no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan. (14) The learned counsel for the respondent on the contrary contended that the proviso to section 14 of the Act permits to continue to use any land or building for the purpose and to the extent for and to which it was being used upon the date on which any of the plans, viz., Master or Zonal comes into force. The learned counsel for the appellant controverting the plea advanced on behalf of the respondent, submitted that the exception carved out by the proviso to section 14 was available, .in case the Authority by regulations prescribes the terms and conditions upon which it shall be lawful to continue the old user of any land or building prior to the enforcement of the Act or any of the plans. (15) To settle the rival contentions, it would be .appropriate to note the provisions of Section 14 of the Act which reads as under :- "User of land and 14. After the coming into operation of any buildings in of the plans in a zone no person shall use contravention of or permit to be used any land or building plans, in that zone otherwise than in conformity with such plans : Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force."
The aim of the Act is to provide for the development of Delhi according to plan and for matters anciallary thereto. According to clause (d) of section 2 of the Act, unless the context otherwise requires, "development" with its grammatical variations means the carrying out of building, engineering, mining and other operations in, on, over or under land or the making change in any building or land and includes re-development. According to section 6 of the Act, the object of the Authority shall be to promote and secure the development of Delhi according to plan and for that purposes the Authority shall have the power to acquire, hold, manage and dispose of land and other property, to carry out building, engineering, mining, and other operations, to execute work in connection with supply of water and electricity, disposal of sewage and other services and amenities and generally to do anything necessary or expedient for purposes or such development and for such purposes incidental thereto.
(16) Planned development of Delhi as envisaged in the above-noted provisions of the Act was likely to take time and during the interventing period human activity was not desired to be brought to a standstill. The legislature knew that human problem was involved and a large segment of society engaged in trade could not be uprooted over-night. To tide over such difficulty, proviso to section 14 made it lawful to continue to use any land or building for the purpose and to the extent for and to which it was being used upon the date on which any of the plans came into force. It is true that proviso carves out an exception to the general rule embodied in section 14 and the exception envisaged in the proviso would be subject to such terms and conditions as may be prescribed in regulations made in that behalf. But if the Authority fails to make regulations no disability is created for using any land or a building for a purpose for which it was previously being used. Proviso to Section 14 is intended to relieve the hardship in carrying out the planned development of a zone. The words "use upon such terms and conditions as may be prescribed" in the proviso enable the Authority to restrict by regulations the use of any land or building for a purpose for which it was being previously used. In other words so long as regulations are not framed an occupier of a land or a building cannot be deprived of taking advantage of the proviso to section 14. Pending framing of the Regulations prosecution in respect of a non-conforming user prior to the coming into force of any of the plans, is misconceived. (17) The view that we have taken is reinforced by two earlier decisions in Sarojini Market Shopkeeper Association (Rogd.) another v. Union of India and others, 1964 Plr 1144 and Lal Singh and others v. The Lt. Governor, Delhi and others, . In Sarojini Market Shop-keepers Association's case, the construction of a building by the Union of India in Sarojini Nagar near the Sarojini Market and its use as shops to be allotted to various persons to facilitate their rehabilitation was objected to by the petitioners on the ground that the construction and use of the aforesaid building as shops was contrary to the provisions of the Master Plan and the provisions of the Delhi Development Act. The building was sought to be constructed at the site which was already being used as a shopping centre with a view to rehabilitate the persons thrown out of jobs as a result of fire which broke out in the said shopping centre. It was held that assuming the construction of the shops was not strictly in conformity with the Master Plan, the use of the land in dispute as a shopping centre was permissible under the proviso to Section 14 of the Act because the aforesaid land was previously used as a shopping centre and that the non-framing of the regulations could not stand in the way of the persons whom the shops in question were proposed to be allotted from using them for the purpose of selling their merchandise. It was observed that proviso to section 14 carves out an exception to the general rule laid down in that section. The exception embodied in the proviso would be subject to such terms and conditions as may be prescribed by regulations made in that behalf and where no regulations are made) the use of the land for a purpose for which it was being used on the date the plan came into force would not make it subject to any further restriction. The proviso to section 14 it was observed, does not create a disability but enables the use of land for a purpose for which it was previously being used and that the proposed allottees of the shops could not be deprived of the benefits of the proviso because of the omission of the authorities concerned to frame regulations mentioned in the proviso. It would be open to the authorities concerned to make regulations so as to restrict the use of the land for a purpose for which it was being previously used but so long as the regulations are not framed a party cannot be prevented from taking the full advantage of the proviso to section
14. (18) In case Lal Singh and others (supra) the petitioners challenged the acquisition of their lands and buildings, amongst others, on the ground that their Colony (Shakarpur Extension Colony) was in existence prior to 1959 in which the petitioners had built the residential houses over a large number of plots owned by them and that the aforesaid Colony had been car-marked as a residential area in the Master Plan for Delhi and that in the Draft Zonal Development Plan also, except for a small portion, it had been shown as residential area and that the houses built in the Colony did not in any way violate the land use pattern provided in the Master Plan The precise argument was that both according to the provisions of law contained in section 14 of the Act and the policy announced by the Government from time to time, the built up areas were not to be disturbed even if such areas were not in conformity with the Master Plan and the Zonal Development Plan. Dealing with the submission pertaining to section 14 of the Act, it was observed that the main part of the section prohibits the user of a land or building in a zone otherwise than in conformity with either the Master Plan or the Zonal Development Plan for the zone. But the proviso lays down an exception to the main provision, and states that the previous user to which the land or the building was being put on the date on which such plan came into force can be lawfully continued upon such terms and conditions as may be prescribed by regulations made in that behalf. It was observed that it is true that the proviso states that the continuation of the user has to be upon such terms and conditions as may be prescribed by regulations made in that behalf, but that does not mean that the exception recognised under the proviso does not operate so long as no regulations are made. The words "upon such terms and conditions as may be prescribed by regulations made in the behalf" in the proviso only enable the Authority concerned to make regulations prescribing terms and conditions for the continuation of the previous user. If regulations are not prescribing such terms and conditions, it only means that the continuation of the user permitted by the proviso would be subject to no terms and conditions. In other words, it was held, a person does not lose the benefit of the proviso if he is otherwise entitled to it, merely because the authority concerned has not chosen to make regulation prescribing terms and conditions for the continuation of the previous user. The concerned authority by closing not to avail of the enabling provision in the proviso, cannot circumvent the rest of the provision in the proviso and deprive the petitioners of the benefit conferred there under.
(19) The learned counsel for the appellant, however, contended that where, as in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment so as to exclude from it by implication what clearly falls within its express terms. There can be no dispute to the proposition sought to be urged but the proviso to section 14 as already noted above carves out an exception to the main rule embodied in section 14. The principle sought to be urged is accordingly of no consequence in the instant case.
(20) Reliance placed on Madras and Southern Maharatta Ry. Co. Ltd. v. Bezwada Municipality ; Links Advertisers and Business Promoters v. Commissioner Corporation of the City of Bangalore, ; and Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subash Chandra Yograj Sinha, , is misplaced, having no bearing on the question under consideration.
(21) The submission that where the language of a statutory provision is susceptible of two interpretations, the one which promotes the object of the provision, composts best with its purpose and preserves its smooth working, should be chosen in preference to the other which introduces inconvenience and uncertainly in the working of the statute, should be preferred is. equally of no avail. The provision of Section 14 and the proviso to it are not susceptible of two interpretations. The provision envisaged by section 14 is clear, while proviso to the said section carves out an exception to the prohibition for using or permitting to be used any land or building in a zone after the coming into operation of any of the plans in a zone otherwise than in conformity with such plan.
8.6 The ld. Counsel for MCD has relied on Ex.PW1/R1 which is schedule of commercial rates announced by Ministry of Urban Development, Govt. of India dated 02.05.2017. The rates were fixed w.e.f 01.04.2000 on recommendation of Land Rates Revision Committee (LRRC) under the Chairmanship of Addl. Secretary, UD. The recommendation was accepted to align the rates of commercial land to that of conversion land rates of DDA. The land rates were applicable on 01.04.2004 based on 100 FAR which will increase proportionally with the increasing FAR. Ld. Counsel for the MCD has referred to the said rates highlighting Roshnara Road and Azad Market which mentions a sum of Rs.43,923/- at column no. 10 which is w.e.f 01.04.2010 to 31.03.2011. At the first instance it is noted that the said rates were applied for the purpose of conversion of land use and not for determination of market value of the acquired land. Secondly it is required upon the respondents to show that the said determination of value of land is made by duly appointed Parliamentary Committee for such determination of market value after taking due evidence in this regard. In absence of the same the above rates cannot be accepted in view of citation titled Lal Chand v. Union of India & Anr. AIR 2010 SC 117(1) at para no. 16 and
17. In the said citation the reliance on stamp law and circle rates was rejected for the reasons stated. The relevant para are reproduced as under:
16. It should however be noted that as contrasted from the assessment of market value contained in non-statutory Basic Value Registers, the position may be different, where the guideline market values are determined by Expert Committees constituted under the State Stamp Law, by following the detailed procedure laid down under the relevant rules, and are published in the State Gazette. Such state stamp Acts and the Rules thereunder, provide for scientific and methodical assessment of market value in different areas by Expert Committees. These statutes provide that such committees will be constituted with officers from the Department of Revenue, Public Works, Survey & Settlement, Local Authority and an expert in the field of valuation of properties, with the sub-registrar of the sub-registration district as the member secretary. They also provide for different methods of valuation for lands, plots, houses and other buildings. They require determination of the market value of agricultural lands by classifying them with reference to soil, rate of revenue assessment, value of lands in the vicinity and locality, nature of crop yield for specified number of years, and situation (with reference to roads, markets etc.). The rates assessed by the committee are required to be published inviting objections/suggestions from the members of public. After considering such objections/suggestions, the final rates are published in the Gazette. Such published rates are revised and updated periodically.
When the guideline market values, that is, minimum rates for registration of properties, are so evaluated and determined by expert committees as per statutory procedure, there is no reason why such rates should not be a relevant piece of evidence for determination of market value. One of the recognised methods for determination of market value is with reference to opinion of experts. The estimation of market value by such statutorily constituted expert committees, as expert evidence can therefore form the basis for determining the market value in land acquisition cases, as a relevant piece of evidence. It will be however open to either party to place evidence to dislodge the presumption that may flow from such guideline market value. We however hasten to add that the guideline market value can be a relevant piece of evidence only if they are assessed by statutorily appointed Expert Committees, in accordance with the prescribed assessment procedure (either street-wise, or road-wise, or area-wise, or village-wise) and finalised after inviting objections and published in the Gazette. Be that as it may. We have referred to this aspect only to show that there are different categories of Basic Valuation Registers in different states and what is stated with reference to the stamp law in Andhra Pradesh or Uttar Pradesh, may not apply with reference to other states where state stamp laws have prescribed the procedure for determination of market value, referred to above.
17. In this case, there is nothing to show the circle rates have been determined by any statutorily appointed committee by adopting scientific basis. Hence, the principle in Jawajee Naganatham will apply and they will not be of any assistance for determining the market value. Further, they do not purport to be the market value for lands in rural areas on the outskirts of Delhi, nor the market values relating to Rithala village. The circle rates relate to urban/city areas in Delhi and are wholly irrelevant. Whether the award relating to acquisition on 24.10.1961 is relevant.
8.6.1 In the present case the claim is made for basement, ground, first and second floors and even if taken by the FAR of 100 per floor even then the area may exceed FAR of 100. The witness of MCD RW-1 nowhere talks about FAR however it is applicable to the facts of the present case. Merely filing the list of rates applicable for one purpose cannot be made applicable for another purpose. The FAR has to be considered as applicable in the said area. It is submitted by the petitioner that in the RTI from the office of MCD the FAR at Roshnara Road is given as 350. Further, the respondents have failed to explain that when the said L&DO rates vide Ex.PW1/R1 are applicable for conversion charges i.e. unearned increase in the value of land then how the same rates are applicable to the facts of the present case when the increase in favour of petitioner cannot be taken in the nature of unearned increase.
8.6.2 Other than this when the value of land was decided on the basis of 100 FAR in Ex.PW1/R1 then it is admitted case in Pankaj Bhardwaj v. UOI (supra) that the FAR of the area in question is 350. The value for Roshnara road at column no. 10 is mentioned as Rs.43,923/- for the FAR 100. Hence for FAR 350 the value comes to Rs.1,53,631/-. The said value is determined for the purpose of unearned increase for the purpose of conversion of land. However in the present case the purpose is determination of market value and not unearned increase therefore acceptance of the above value pleaded by North DMC is not correct method since own document of respondent no. 2 has accepted value higher than Rs.1,53,631/- for the leasehold land which is yet to be converted into freehold land. Therefore such value of freehold land after conversion has to be much higher than the above rate.
8.7 The respondents have pleaded that circle rates may be applied for awarding compensation to the petitioner. However circle rates are not for the purpose of determination of market value. The said rates are for determination of basic minimum rates to be considered for sale and purchase of property and were so determined for the purpose of payment of revenue to the Government. Hence the purpose of circle rates are quite different from the purpose of grant of compensation. Therefore the circle rates cannot be said to be applicable to the facts of the present case. The relevant citation in this regard is titled Lal Chand v. Union of India & Anr. (supra) is relied upon.
8.8 The petitioner has relied on judgment in Pankaj Bhardwaj (supra), its record in evidence and judgment is filed in the present reference for the purpose of identification of potentiality of the area. The petitioner has also relied upon judgment Ex.PW1/3 titled National Cold Storage and Refrigeration Pvt. Ltd. v. UOI & Ors. Reliance of same method is adopted as in Ex.PW1/3. In Ex.PW1/3 the instance of sale and purchase of property produce in evidence for residential area are taken into consideration and thereafter method of averages is adopted. Thereafter three times that of residential rates are taken into consideration for determination of commercial rates of land. The respondent in the present matter has produced sale deed dated 18.11.2009 Ex.R-5 pertaining to area Nawab Ganj, Pulbangash, Azad market, Delhi on property built up area measuring 39 sq. mtr. Another sale deed relied upon by the respondent is Ex. R-7 pertaining to Kucha Mahajani, Chandni Chowk, Delhi dated 29.05.2009 area measuring 79.16 sq. mtr for consideration of Rs.20 lakhs. The said property is not seen as commercial property in Ex.R-5 or Ex.R-
7. Further, the respondents have failed to submit that how the area Azad market and the area Chandni Chowk described in the above exhibits is similar and near to the Roshnara road or to the acquired land. Ld. Counsel for petitioner has pointed out that the above sale deeds were also relied upon by the respondents in Ex.PW1/3 where they failed to prove that the said sale deed pertains to the area similar to that of acquired land. In para no. 23 of Ex.PW1/3 it was found that the property in question falls under village Civil Station under the category "C" and that such instance had not been taken into consideration by the LAC as per the Award. However the purpose is to determine the correct market value and merely filing the sale deeds of various properties does not serve the purpose unless and until it is shown that the sale deed filed resemble the correct market value of the acquired land. In Pankaj Bhardwaj case (supra) at para no. 30 it is found that when the sale instance of Nawab Ganj, Chandni Chowk, Delhi which are far from acquired property are produced by the respondents herein then there is no reason that why Roshnara road, Kothi Mem, Boulevard road are not similar to the acquired land. It is potential of the land which has to be considered for the commercial land and thus so proved by the petitioner as discussed above. In Pankaj Bhardwaj case (supra) the reply to RTI from LAC mentions that the distance from Pulbangash Metro station to the acquired property is abutted and at zero distance from Rani Jhansi Road. The value submitted by the respondents in Ex.PW1/R1 discussed above is more than Rs.1,53,631/-. Hence keeping in view the facts and circumstances of the case and on the ground of parity with Ex.PW1/3 and Pankaj Bhardwaj case (supra) and for the same reason discussed in Ex.PW1/3 and in Pankaj Bhardwaj case (supra) it is found that petitioner is entitled for the same rate of compensation on the acquired land i.e. at the rate of Rs.2,14,280/- per sq. mtr as on the date of notification u/Sec. 4 of LA Act on 20.04.2010 and also on notification u/Sec. 6 of LA Act dated 28.06.2010. Accordingly the above rate is granted to the petitioner against the respondents and present issue is decided in favour of petitioner and against the respondents in respect of acquired land.
9. The Award Ex.PW1/R2 is perused and at page 34 of the same it mentions that the valuation of super structure could not be completed till the filing of the Award which will be covered by a supplementary Award. Hence the valuation in the present matter is not in reference to the super structure. The present reference is not moved with reference to the super structure. Therefore super structure is not an issue between the parties in the present reference and therefore it is held that issue no. 1 regarding structure, severance charges and cost of fixtures and fittings does not arise between the parties in the present reference and the same are held as non-issue between the parties and issue no. 1 regarding market value of acquired land is decided in favour of petitioner and against the respondents as discussed above in that petitioner is held entitled to rate of Rs.2,14,280/- per sq. mtr as on the date of notification u/Sec. 4 of LA Act on 20.04.2010 and also on notification u/Sec. 6 of LA Act dated 28.06.2010.
10. ISSUE NO. 22. Whether the present reference petition is barred by time? OPD-R2 10.1 The Section 30 of LA Act, 1894 requires Collector of its own motion to make a reference to the Court. It is so laid down in case citation Dahal Jung v. Hem Kumari Devy AIR 1960 Tripura 18 that under this provision the Collector has power of discretion and this provision does not contain definite provision for limitation. No specific time is provided within which a reference u/Sec. 30 should be made. When the question is purely one of title it is open to the Collector to forward the reference whether the period has expired or not. It was laid down in citation titled Nanak Chand v. Piran Ditta AIR 1941 Lahore 268. The above two citations are referred and noted at page no. 1142 in the book titled "Commentary on the Land Acquisition Act," 8th Edition by Sh. Om Prakash Aggarwala.
10.1.1It is submitted by ld. Counsel for petitioner that the petition is within the period of limitation and it is filed within 42 days from the date of pronouncement of the Award. The Award Ex.PW1/R2 is dated 31.05.2012 and objection filed by the petitioner before LAC is dated 12.07.2012 vide diary no. 320 as bears on the front page of the petition. In any case the objections are filed by the petitioner within 06 weeks as apparent on the face of record. The respondents are required to show notice of this Award to the petitioner after its pronouncement on 31.05.2012 which respondents have failed to show. In any case the objections are filed within the period of limitation and the petition is held not barred by limitation.
10.2 The respondents have failed to show or lead any evidence in this respect that how and on which particular date the present petition is time barred. In fact there is no specific cross-examination in this respect of PW-1. Hence in view of settled law above it is held that the respondents have failed to discharge burden of proof under the present issue. Accordingly present issue is decided against the respondents and in favour of petitioner.
11. ISSUE NO. 3: R E L I E F 11.1 In view of findings under issues above the petitioner is held entitled to the compensation on the acquired land at the rate of Rs.2,14,280/- per sq. mtr as on the date of notification u/Sec. 4 of LA Act on 20.04.2010 and also on notification u/Sec. 6 of LA Act dated 28.06.2010 as per statement u/Sec. 19 of Land Acquisition Act, 1894 available on record with solatium and other benefits as applicable. Petitioner is also held entitled to interest in view of law laid down in case citation Sunder v. UOI DLT 2001 (SC) 569. The petitioner is entitled to benefit on the above amount u/Sec. 23(1)(A) and u/Sec. 23(2) of Land Acquisition Act, 1894. The reference is answered accordingly.
Copy of the present judgment and decree sheet be sent to LAC within 15 days from tomorrow to make the payment of enhanced amount to the petitioner within 03 months from the date of present judgment having due regard for deduction of amount already paid and to avoid duplication. No order as to costs. Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally signed by
JOGINDER
Announced in the open Court
JOGINDER PRAKASH
PRAKASH NAHAR
Date: 2020.03.11 15:58:09
NAHAR
on 07.03.2020. +0530
(JOGINDER PRAKASH NAHAR)
ADDL. DISTRICT JUDGE-04
CENTRAL/TIS HAZARI COURT/DELHI