Delhi District Court
Major General Kapil Mehra vs Union Of India on 24 February, 2007
IN THE COURT OF SHRI YASHWANT KUMAR :
ADDITIONAL DISTRICT JUDGE (LAC) : DELHI
LAC NO : 452/1/06 AWARD NO : 2/1998-99
(Old LAC No. 41/98, 210/05) VILLAGE : Mehrauli,
New Delhi
In the matter of :
1 Major General Kapil Mehra
S/o Sh. Girdhari Lal Mehra
2 Sh. Deepak Mehra
S/o Sh. Girdhari Lal Mehra
3 Smt. Dr. Sushma Khanna
D/o late Sh. Girdhari Lal Mehra
R/o C-302, Som Vihar, New Delhi
...Petitioners
Versus
1 Union of India
through Land Acquisition Collector,
District South, Mehrauli, Badarpur Road,
New Delhi.
2 Delhi Development Authority,
through its Vice Chairman,
Vikash Sadan, INA, Vikas Sadan,
New Delhi.
...Respondents
AWARD REFERENCE U/S 18 OF THE LAND ACQUISITION ACT 1 Vide notification No. F9(1)/97/L&B/LA-6040 dt. 19.02.1997 U/s 4 of the LA Act (hereinafter referred to as the ACT) and declaration was also made vide notification No. F9(1)/97/L&B/LA- 23225 dated 13.02.1998 U/sec. 6 of the LA Act, the land including the land of the petitioners situated in the revenue estate of village Mehrauli, New Delhi was acquired by the Govt. for Planned Development of Delhi. The Delhi Land Acquisition Collector (hereinafter referred to as LAC) after completing all the requisite formalities as provided under the Act passed the award bearing No. 2/1998-99 and awarded the compensation @ 10,00,000/- per acre. 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 this reference court .
3 In this reference petition, the petitioners have sought the enhancement of compensation on the grounds that late Sh.Girdhari Lal Mehra, the recorded owner of the property in question who expired on 01.12.1985 and is survived by his LRs as the names mentioned above. The amount of compensation awarded by the LAC is too low, grossly inadequate, arbitrary and not in accordance with law. The LAC has not taken into consideration at all the situation of the land under reference which is part and parcel of the modern developed residential colony namely, Vasant Kunj. The land under reference is a part of the fully developed Sector-A of Vasant Kunj colony. It is not out of the place to mention that Vasant Kunj is a posh colony of South Delhi and is situated in close vicinity of Kutub Minar historical township of Mehrauli, famous chattarpur temples and lies on the Mehrauli Palam Airport Road. There is also a famous japanese school which is patronized by the affluent sections of the society as well as foreigners adjoining to the land in question. In all respects, the land in question is a prime land. In assessing the market value of the land, the LAC has relied upon the notification of land & Building Deptt., bearing No.F.9(20)/80/L&B/LA/8820 dt.25.07.1997 which according to him is indicative of price of agricultural land and according to which price of agricultural land was Rs.10,00,000/- per acre as on 01.04.1997. It is also stated that the land in question was not agricultural but was part and parcel of developed Vasant Kunj Colony, even in the records of Delhi Development Authority. The land was earmarked for a police Station and a higher Secondary School. The LAC has erred in not taking into consideration, the DDA sale price of land at public auctions in Vasant Kunj Colony itself, where the land of the petitioner is located. The land of the petitioners was free-hold whereas the land at Vasant Kunj which has been sold by the DDA at public auction is lease hold. The price of freehold land is at least 1- 1/2 times the lease hold land. The petitioners have claimed @ Rs.50,000/- per sq. yard (Rs.5,00,00,000/- per bigha) and also claimed Rs.20,00,000/- for trees and Rs.3,00,000/- for cost of well besides statutory benefits.
4 The UOI, in its written statement has raised the objection on the grounds that the 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 petitioners therein admitted only to the extent as specified by the LAC in his statement furnished U/s 19 of the LA Act. The land in question is not surrounded by any developed or un-developed colony and can only be used for agricultural. On merits, it is stated that the compensation has been legally and correctly assessed by the LAC and the same is adequate and just and it was taken into consideration the situation of the land and all the facts including potentiality of the land in question while assessing the market value of the land. It is also stated that there was no well on the land in question at the time of notification U/sec. 4 of the LA Act. All other averments made in the reference petition by the counsel for the petitioners have been denied.
5 DDA, in its written statement, has raised the objection on the grounds that the Delhi Land Reforms Act is applicable to the land in dispute which reduce its market value. The correctness of khasra nos., its area and the extent of share of the petitioner therein is admitted to the extent as stated by the LAC in his statement U/sec. 19 of the LAC. The aforesaid land has no potential value and it can be used only for agriculture purpose. The said land is not surrounded by any developed colony. There is no developed or undeveloped colony in the land which is under acquisition in the instant award. There was no tube-well or well in the land in dispute at the time of notification U/sec. 4 of the LA Act. The petitioner is not entitled to any damage and severance charges. On merits, it is also stated that the land bearing kh. no.1300/1 min /697 (12-00) total 12 bighas has been renotified u/sec. 4 & 17 of the LA Act. The land has been acquired vide award no. 2/1998-99. The land has been transferred to Horticulture Deptt as per the land records.
6 The petitioners filed the replications to the written statement of UOI & DDA and re-affirmed the averments made in the reference petition and defence taken by the UOI & DDA in their written statement has been denied.
7 It is pertinent to mention here that in the LAC No.20/93, the reference u/s 30-31 of the LA Act in respect of the land bearing kh. nos. 1300/1/697 (12-00), 1300/2/700 (10-00) & 1300/2/1/699 (1-00) total measuring 23 bighas situate in villlage Mehrauli, New Delhi acquired vide award No.83/1982-83 announced on 25.03.1983 was decided by Sh.Kuldeep Singh, Ld.ADJ, Delhi on 17.09.1994 whereby it was held that on the date when the land in dispute was taken in possession by the LA Collector after acquisition, Sh.Chunni Lal had not been left with any right and hence he is not entitled to claim compensation rather the LRs of Sh.Girdhari Lal are entitled to receive compensation in respect of the acquired land bearing kh. no.1300/1/697 (12-00) in the peculiar circumstances of the case. 8 Sh. Girdhari Lal Mehra, father of the petitioners herein had also filed the reference dt. 14.09.1983 u/s 18 & 30 of the LA Act titled Sh.Girdhari Lal Mehra Vs UOI, Sh.Chunni Lal, Sh.Kehar Singh & Sh.Madan Lal before the LAC on 14.09.1983 for referring the matter to the court of Ld. District Judge, Delhi which was referred by the LAC and the same was registered as LAC No.449/1983 in the reference court on 23.12.1983. During the pendency of the reference, Sh.Girdhari Lal had expired on 01.12.1985 and vide the order dt. 01.11.1993 passed by the then Ld. ADJ, Delhi, the LRs, namely, Smt.Prakash Mehra (widow), Sh.Manmohan Mehra, Sh.Kapil Mehra, Sh.Deepak Mehra (sons) and Smt.Sushma Khanna (daughter) were brought on record as LRs of deceased Sh.Girdhari Lal Mehra. It was also ordered that the said LRs shall be entiteld to claim compensation in equal share which is payable to Girdhari Lal Mehra. Thereafter, this reference further proceeded which continued till 12.01.1999 when, Sh.N.S.Negi, counsel for the petitioners made a statement before the reference court that under instructions from the petitioners, he withdraws the said reference petition. In view of the said statement of the petitioner's counsel, the aforesaid reference petition in LAC No.260/93 (old LAC No.449/1983) was dismissed as withdrawn and the reference file was consigned to record room.
9 On the pleadings of the parties, following issues were framed by the Ld. Predecessor court on 02.11.1999 which are as under :
1 What was the market value of the land, Trees, in dispute at the time of section 4 Notification date?
2 To what enhancement in compensation, the petitioners are entitled?
3 Whether there existed any well on the land in dispute if so what was its market value?
4 Whether the Collector has not complied with the provisions of Section 17(3)(A) of the Land Acquisition Act, if so whether the petitioners are entitled to interest from 19.02.1997 to date of payment?
5 Whether the petitioners are entitled to 12% additional amount u/s 23 (1) (A) of LA Act from 25.03.83 to 18.9.98?
6 At what rate and on what amount the petitioners are entitled to interest U/s 34 of the LA Act?
7 Relief.
10 The counsel for the petitioners, in support of his case for enhancement in compensation, filed the certified copy of the memo of parties along with the affidavit of Mr. Shamim Ahmed, Director (Land Management) (HQ), Delhi Development Authority, Vikas Sadan, INA, New Delhi which was filed in CCP No.461 of 1996 before the Hon'ble High Court of Delhi as Ex.A-1; the certified copy of the civil contemp application No.46/1996 in Civil Writ Petition No.1134 of 1992 titled Maj. Gen (Retd.) Kapil Mehra & Ors Vs Sh.U.S.Jolly & Anr as Ex.A-2 ; the certified copy of the affidavit of Maj. Gen. (Retd.) Kapil Mehra in the aforesaid contemp application in Civil Writ Petition No.1134 of 1992 as Ex.A-3 ; the certified copy of the judgment dt. 30.01.1996 passed by the Hon'ble High Court of Delhi in C.W.No. 1134 of 1992 titled Major Genl. (Retd.) Kapil Mehra & Ors Vs UOI & Ors. as Ex.A-4 ; certified copy of the said C.W.P. No.1134 of 1992 as Ex.A-5 ; certified copy of the affidavit of Major General (Retd.) Kapil Mehra in support of the aforesaid C.W.P.No.1134 of 1992as Ex.A-6 ; certified true copy of the perpetual lease deed executed on 18.02.1997 between Delhi Develoopment Authority ( Land & Housing Deptt.) on behalf of President of India being the lessor and Sh.Ashwani Kumar & Smt.Kiran Bala w/o Sh.Ashwani Kumar, 237, Kailash Hills (LGF), New Delhi-65 being lessee in respect of residential plot measuring 218.50 sq. mtrs bearing no.59 Sec-C, Pocket-5, Residential Scheme Vasant Kunj, New Delhi in consideration of the amount of Rs.75,05,000/- as Ex.A-7 ; certified true copy of the perpetual lease deed executed on 10.02.1997 between Delhi Development Authority (Land & Housing Deptt) on behalf of the President of India being the lessor and Miss. Nidhi Arora d/o Mr. B.R.Arora, A- II, Greater Kailash Enclave-II, New Delhi being the lessee in respect of residential plot measuring 220 sq. mtrs bearing no.05 Sec-C, Pocket-5, Residential Scheme Vasant Kunj, New Delhi in consideration of the amount of Rs.96,55,000/- as Ex.A-8, certified true copy of the perpetual lease deed executed on 13.01.1997 between DDA on behalf of the President of India being the lessor and Sh.Jitender Bhutani S/o Sh.Madan Lal, Sh.Ravinder Juneja S/o Sh.M.R.Juneja, Mrs.Rashmi Juneja W/o Sh.Ravinder Juneja, Gali No.5, 1/9217, West Rohtash Nagar, Shahdara, Delhi being the lessee in respect of residential plot measuring 231 sq. mtrs bearing no.08 Sec-C, Pocket-5, Residential Scheme Vasant Kunj, New Delhi in consideration of the amount of Rs.1,01,61,000/- as Ex.A-9 & certified true copy of the perpetual lease deed executed on 27.03.1997 between DDA on behalf of the President of India being the lessor and Sh.Sanjeev Batra S/o Sh.S.L.Batra and Mrs. Shelly Batra w/o Sh.Sanjeev Batra C/o HDFCL 39, Hauz Khas Village, Daryacha, New Delhi-16 being the lessee in respect of residential plot measuring 242 sq. mtrs bearing no.05 Sec-C, Pocket-5, Residential Scheme Vasant Kunj, New Delhi in consideration of the amount of Rs.1,37,60,000/- as Ex.A-10.
11 The counsel for the respondents in support of their evidence have also filed the attested to be true copy of the khasra Girdawari of the land bearing kh. nos.1300/697 situate in village Mehrauli, New Delhi for the year 1977-78 to 1980-81 as Ex.R-1; attested to be true copy of the Khasra Girdawari of the said land for the year 1986- 87 to 1989-90 as Ex.R-2; attested to be true copy of the khasra Girdawari of the aforesaid land for the year 1990-94 as Ex.R-3; certified copy of the Khasra Girdawari of the said land for the year 1994 -98 as Ex.R-4; true copy of the letter No.F.9(20)/80/L&B/LA/8822-66 dt.28.07.1997 issued by Jt. Secretary (L&B), Govt. of NCT of Delhi, Land & Building Deptt., Vikas Bhawan, New Delhi addressed to the Secretary (Revenue), Govt. of NCT of Delhi, Tis Hazari, Delhi in respect of the fixation of indicative price of agricultural land/land situated in river bed between the forward bunds as Ex.R-5. Further, Sh.S.C.Chandana, Executive Engineer, SWD-IV, DDA, Vasant Kunj, New Delhi has been examined as RW1.
12 In the present reference, the petitioner no.3, Smt.Prakash Mehra, widow of deceased Sh.Girdhari Lal Mehra died on 06.03.1999 and vide order dt. 27.03.2001 passed by the Ld. Predecessor Court, the name of Smt.Prakash Mehra was deleted from the array of the parties in this reference. However, till the final stage of this reference, the amended memo of parties was not filed by the counsel for the petitioners and it only came to the notice of this court at the time of dictating the judgment and after directions to the counsel for the petitioiners, the amended memo of parties was filed on 12.02.2007.
13 I have heard the petitioner & counsel for the parties and further have perused the synopsis of the case, written ''winding up arguments'' by the petitioners, judgments relied upon & filed by the counsel for the parties as well as the entire records. ISSUE NOS. 1, 2 & 3.
14 The issue nos. 1, 2, & 3 are inter-connected and I shall decide these issues together. The onus to prove these issues is upon the petitioners. The petitioners have sought enhancement in compensation on the aforesaid grounds which are not repeated here for the sake of brevity. Before considering & evaluating the market value of the acquired land on the date of notification i.e. 19.02.1997 U/sec. 4 of the LA Act, 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 P.Ram Reddy & Others Vs Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad & Ors (1995) 2 Supreme Court cases 305, the Hon'ble Supreme Court of India held that :
''Building potentiality has to be decided on the basis of material placed on record or made available and as such material must be supported by reliable documentary evidence. Therefore, if the acquired land has the building potentiality, its value, like the value of any other potentiality of the land should necessarily be taken into account for determining the market value of such land.'' 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.'' 15 In the present reference, the LAC while assessing the market value of the acquired land has considered in the award No.2/1998-99 announced on 18.09.1998 that while determining the market value of the land as on 19.02.1997 i.e. the date of notification U/s 4 of the LA Act, several factors such as location of the land and price policy of the Govt. regarding acquisition of agricultural land are to be taken into consideration. The LAC in the aforesaid award has further considered that the claimant asked for the compensation at Rs.25,000/- per sq. yard but the claimant has not given any documentary evidence in support of his claim. The LAC also considered that the notification of the land & Building Deptt. Bearing No.F9(20)/80/L&B/LA/8820 dt. 25.07.1997 provides that w.e.f. 01.04.1997, the indicative price for agricultural land acquired by the Govt. would be Rs.10,00,000/- per acre. It was again considered by the LAC that the indicative price of the agricultural land would also apply to all such cases where land has been notified u/s 4 of the LA Act before 01.04.1997 and awards have not been announced as yet. In such cases, indicative price of Rs.10,00,000/- per acre may be discounted @ 11.5% per annum compounded rate of interest besides statutory benefits.
16 The petitioners have averred in their reference petition that the LAC has erred in not taking into consideration the DDA sale price of the land at public auction in Vasant Kunj Colony itself where the land of the petitioners is located. The petitioners, in support of their said contention, have relied upon the perpetual lease executed by DDA in respect of the plots situate in Vasant Kunj, New Delhi and the said perpetual leases have been exhibited as Ex.A-7 to Ex.A-10. The respondents have also examined Sh.S.C.Chandana, Executive Engineer, SWD-IV, DDA, Vasant Kunj, New Delhi as RW1 who produced the record pertaining to C-5, Vasant Kunj, New Delhi. The record included a layout plan indicating plot no.59, 8, 13 & 5. These are the plots among total 61 plots developed by DDA and the area includes parks, roads, sewer lines, water lines & electrification internal and external. The other public utility like parks has also been mentioned in the layout plan which has been proved by RW1 as Ex.DR-1/A. In this context, I would prefer to place a reliance upon the judgment dt. 03.03.2005 in WP (C ) 76-79/2004 titled Chet Ram Sharma & Ors Vs UOI & Ors, the land situate in village Bahapur, New Delhi was acquired vide the notification dt. 28.11.2002 U/s 4 (1) r/w/sec. 17 (1) (4) of the LA Act, the Hon'ble High Court of Delhi observed that :
''Not much material has been placed before us which could help the court to determine the fair market value of the land in question while the petitioners have placed whole emphasis on the fact that the land sought to be acquired by the respondents vide their notification U/s 4 dt. 28.11.2002 is part of a fully developed commercial area and has great potential and they are entitled to the present market value prevalent in the area at the relevant time. The petitioners rely upon the public auction conducted by the DDA in relation to plot No. 70, Nehru Place, wherein the land was auctioned at a price of Rs.1,91,666/- per sq. mtr.
The Hon'ble High Court of Delhi further observed that it was concerned only with the fixation of a fair market price of the land, prima facie. While determining prospective use of the land or its future potential and development by itself, cannot be the only basis for the court to determine the market value of the acquired land. It is for the claimants to prove on record that the land or its surrounding areas have been fully developed at the time of notification. Granting of compensation is a mtter of serious consequence and thus cannot be based upon the element of conjuncture. Reference in this regard can be made to the judgment of the Supreme Court in the case of B.G. Kulkarani Vs Special Land Acqusition Officer JT 1996 (4) SC 220 as well as Trilochan Singh Vs State of Punjab 1995 LACC 283 SC. Normally, the auction by public authorities of fully developed plots cannot be stated to be a fair guiding factor for determining the fair market value of the land sought to be acquired by the Government at a subsequent stage. Of course, location, potential, utility would be the relevant factors which the court upon due proof by the claimant, may take into consideration. Auction of a developed plot by a public authority may not be a proper guide for determination of such compensation. It will be appropriate to refer to the judgment in the case of Santa (Died) & Ors Vs State of Haryana & Anr 2000 (2) PLR 501 while referring to various judgments of the Supreme Court as well as of that Court, it was held as under:-
''It is settled principle of law that the plot which are developed by the Government or its instrumentalities in the larger public interest after incurring huge expenditure cannot form basis for determining the compensation payable to the land being acquired by the Government for achieving that very public purpose. The cost indicated includes various other ingredients and does not indicate the excessive cost factor of the land price. It was for the claimants to bring appropriate evidence on record for bifurcation of such costing before they could derive any benefit from such documents.
This court has the occasion to discuss the relevancy of such public auctions or allotment of plots by the public bodies in different cases. In the case of State of Haryana and another V.Ram Chander and others, RFA No. 37 of 1996 decided on 13.05.1999 while considering somewhat similar question where auctions were held by HUDA of commercial areas, the Court observed as under:-
''Those instances are to my mind not relevant considerations for determining the fair market value of the acquired land at the time of notification. Varied reasons can be given for rejecting these instances. Firstly, these plots are developed plots on which the Government or HUDA has already spent considerable amount. Secondly, these are commercial sites and can never be equated to the value of huge agricultural land like the land acquired in the present case. Thirdly, these auction prices are not true index of a fair market value of the land at the relevant time because of the element of speculation and unfair competition in such auctions. Fourthly, the auctions have an element of uncertainty and they cannot be equated to a sale deed. It will depend on the terms and conditions of the auction because normally very meager amount in payable at the time of auction and balance is to be paid in instalments. Whether balance amount was paid or not, whether final documents of lease-deed or sale deed were executed in favour of the bidder? Ex. P31 and Ex. P32 are based on such terms only and lastly but not the least these are such small pieces of land that they cannot form a reasonable and fair basis for determination of compensation payable to the claimants. Once this evidence is held to be irrelevant, the compensation cannot be granted on the mere asking of the claimants which they stated in their examination in chief and PW3, PW4 and PW9 respectively.
Again in the case of State of Haryana Vs Rajinder Kumar, RFA No. 2351 of 1998 decided on 03.06.1999 the court held as under:-
''Serious expenditure and efforts are put in by the State or authorities like PUDA before the developed, residential or commercial plots are put to public auction. Cost of land is one of the components of the minimum auction price fixed by the authorities. Auction price is not the price indicative only of the cost of land. It includes various other factors and components in its composition. It is a matter of public knowledge that it includes maintenance, construction and maintenance of roads in times to come, element of interest payable on different heads and other ancillary factors. An auction/bid is primarily is a speculative feature.
The Hon'ble High Court of Delhi in the aforesaid WP ( C) 76- 79/2004 held that :
''Thus, we have no hesitation in coming to the conclusion that the auction held by the DDA in regard to plot No. 70 in the year 1995 cannot be the sale criteria for determining the compensation payable to the land owners, prima facie, and at this stage of the proceedings. We would not prefer to rely upon this document as the petitioner can hardly be permitted to take undue advantage of public obligations of the Government and its development policies.'' It was further held by the Hon'ble High Court of Delhi that :
''Admittedly the area has been developed by the DDA as a commercial area. However, under the lay out plan, the area was marked only for public utility services and thus it cannot get any commercial value.'' 17 The rates of the specific piece of land sold through public auction, as the petitioners-herein have relied upon, cannot be the basis for determining the fair market value of the land in question.
In the case of Chet Ram (Supra), the petitioners/ claimants claimed that the acquired land is a part of commercial area. The Hon'ble High Court of Delhi placing reliance upon the judgments of the Hon'ble Supreme Court of India, has held that while determining the prospective use of the land or its future potential and development by itself cannot be the only basis for the court to determine the market value of the acquired land and therefore, granting of compensation is a matter of serious consequence and thus cannot be based upon the element of conjuncture. It was further held by the Hon'ble High Court of Delhi in the aforesaid case that normally, the auction by public authorities of fully developed plots cannot be stated to be a fair guiding factor for determining the fair market value of the land sought to be acquired by the Govt. at a subsequent stage. Therefore, auction of a developed plot by public authority may not be a proper guide for determination of such compensation. While rejecting these instances of sale of a developed plot by public auction, various reasons have been given by the Hon'ble High Court of Delhi as well as the Hon'ble Supreme Court in various judgments. Thus, in view of the evidence led by the petitioners, respondents & also the aforesaid judgments of the Hon'ble High Court of Delhi & the Hon'ble Supreme Court of India, I hold that the petitioners herein are not entitled for enhancement in compensation of the acquired land on the basis of the rates of a developed plot sold by the Govt. through public auction.
18 The counsel as well as Sh.Kapil Mehra, petitioner herein, in support of their arguments for enhancement in compensation, have relied upon the judgments which are as under :
In Rameshwar Solanki Vs UOI AIR 1995 Delhi 358, it was held by the Hon'ble High Court of Delhi in its judgment dt. 03.02.1995 that :
''In view of the judgment reported as AIR 1988 Delhi 316 (Supra), wherein escalation at the rate of 12% per year has been given following the statutory provisions made by the amendments in the Act, we think it appropriate to discard the practice of this court to give escalation at the rate of Rs.1,000/- per bigha, and accordingly, in line with that judgment it is appropriate that from 1981 till the date of notification in January, 1984, i.e. two years, the appellant would be entitled to escalatiion at the rate of 12% on the market value proved by him vide Ex.A.W.1/1 to Ex.A.W.1/6 i.e. to say Rs.56,470/-per bigha. having accepted the price of the land in village Palam at Rs.56,470/- per bigha in the year 1981, we have to increase the same by 12% per annum twice as a result of which the price of the land on the date of notification i.e. in January, 1984 comes to Rs.70,836/-. Deducting 1/3rd from the price, the market value comes to Rs.47,224/-. The market price of the land on the date of notificatioin in village Palam is, therefore, Rs.47,224/- per bigha.'' In Jas Rath Vs UOI 95 (2002) DLT 605 (DB), it was held by the Hon'ble High Court of Delhi vide its judgment dt. 04.09.2001 that in order to fix the market value as on 31.12.1981 and increase of 12% per annum would be reasonable one.
In Bhullan Singh Vs UOI 15 DLT (1979) 239 decided on 09.10.1978, it was held by the Hon'ble High Court of Delhi that it is settled law smaller parcels of land generally fetch higher prices than large tracts of land. In the later case, if the market value is to be found out on the basis of plotable area then almost 1/3rd or 1/4th of the land has to be left for common utility services like roads and public places. This would not have to be done in smaller parcels of land.
In Bhagwathula Samanna and others Vs Special Tahsildar & Land Acquisition Officer, Visakhapatnam Municipality AIR 1992 SC 2298, it was held by the Hon'ble Supreme Court of India that :
''The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circumstances it would be permissible to take into account the price fetched by the small plots of land. If the larger tract of land because of advantageous position is capable of being used for the purpose for which the smaller plots are used and is also situated in a developed area with little or no requirement of further development, the principle of deduction of the value for purpose of comparison is not warranted. With regard to the nature of the plots involved in these two cases, it has been satisfactorily shown on the evidence on record that the land has facilities of road and other amenities and is adjacent to a developed colony and in such circumstances it is possible to utilise the entire area in question as house sites. In respect of the land acquired for the road, the same advantages are available and it did not require any further development. We, are, therefore, of the view that the High Court has erred in applying the principle of deduction and reducing the fair market value of land from Rs.10/- per sq. yard to Rs.6.50 paise per sq. yard. In our opinion, no such deduction is justified in the facts and circumstances of these cases.''
19 The petitioners have also relied upon the judgments as mentioned in the written winding up arguments as well as the rebuttal arguments filed by them which I have also gone through. 20 Whereas, the counsel for the respondents, in support of their defence, have argued that when the land was acquired, it was agricultural. The petitioners have relied upon the lease deeds of the plots situate in Vasant Kunj, New Delhi but, no sale deed of Mehrauli, Delhi has been filed by the petitioners. The counsel for the respondents have relied upon the two sale deeds which are as D-1 & D-2. D-1 is the true copy of the sale deed executed on 20.12.1996 between Sh.P.K.Padmanabhan S/o Dr. R.K.Naryanan R/o 132, Golf Links, New Delhi - vendor and Sh.Satish Khosla S/o Sh.B.P.Khosla R/o B-3/48, Safdarjung Enclave, New Delhi - vendee. Wherein, the vendor, the absolute owner/ bhumidar of agricultural land measuring 15 bighas and 18 biswas comprised in Mustatil No.25, Killa No.21 (1-11), Mustatil No. 29, Killa No.1 (4-8), 9 (0-2), 10/1 (1-0), 10/2 (3-10), Mustatil No. 39, Killa No.6 (4-12) and 15/1/2 (0-15) with boundary walls situated within the revenue estate of village Mehrauli, Tehsil Mehrauli, New Delhi sold the aforesaid land to the vendee for a total consideration of Rs.1,44,000/-. Ex.D-2 is the true copy of the sale deed executed on 20.12.1996 between Sh.P.K.Padmanabhan S/o Dr. R.K.Narayanan R/o 132, Golf Links, New Delhi - vendor and Sh.Satvir Singh S/o Ch.Surat Singh R/o 178/3, Neb Sarai, New Delhi - vendee. wherein, the vendor, the recorded owner of 34 bighas and 3 biswas of agricultural land comprised in Mustatil No. 29, Killa Nos. 1 (4-8), 9 (0-2), 10/1 (1-0), 10/2 (3-10), Mustatil No. 30, Killa No.6(4-12), 15/1/2 (0-15), Mustatil No.24, Killa Nos. 13/2 (0-16), 4 (1-15), 14/1 (3-15), 3/2 (1-16), 8/1 (2-3), 17 (4-16), 25/21 (1-11) & 47/9/2 (3-4) situated within the revenue estate of village Mehrauli, Tehsil Mehrauli, New Delhi out of which the vendor sold the land bearing Kh. no.24/13/2 (0-16), 4 (1-5), 14/1 (3-15), 3/2 (1-16), 8/1 (2-3) & 17 (4-16) to the vendee for a total consideration of Rs.1,36,000/-. The counsel for the respondents have further relied upon the award No.83/1982-83 dt. 25.03.1993 of the land situate in village Mehrauli, New Delhi which was acquired vide the notification dt. 13.11.1959 u/s 4 of the LA Act as Ex.D-3. Ex.D-4 is also the award No.2/1998- 99 pertaining to the land situate in village Mehrauli, New Delhi which was acquired vide the notification dt. 19.02.1997 u/s 4 of the LA Act and further relied upon the judgments which are as under :
In LAC No.484/1993 titled V.K.Goel Vs UOI & Anr, the land situate in village Lal Dora Abadi of Mehrauli, New Delhi was acquired vide the notification dt. 11.04.1988 u/s 4 of the LA Act.
The LAC assessed Rs.28,800/- and Rs.8,500/- for the structure existing thereon i.e. Rs.37,300/- for both. The reference court enhanced the compensation from Rs.37,300/- to Rs.44,014/-
besides statutory benefits.
In Government of Andhra Pradesh Vs H.E.H., The Nizam, Hyderabad AIR 1996 SC 3142, agency for which land in question was acquired, acquiring adjacent land and selling it @ Rs.35/- per sq. yard out of it Rs.29/- was collected towards tentative development charges. Sales of neighbouring lands taken place in the year 1975 after full development with evidence of Rs.29 as development charges. The land owner was held entitled to compensation of Rs.8/- per sq. yard after deduction of development charges.
21 Ex.A-4 is the judgment dt. 13.01.1996 passed by the Hon'ble High Court of Delhi C. W. No.1134 of 1992 titled Maj. Gen. (Retd.) Kapil Mehra & Ors Vs UOI & Ors, it was held that :
''the acquisition proceedings with respect to kh. no. 1300- min old, 697 new measuring 12 bighas situated in the revenue estate of Mehrauli, Delhi are quashed. The respondents are directed to restore possession of the said land to the petitioners within 90 days. If for any reason, it is not possible to restore possession, then the petitioners would be entitled to alternative equal area of land'' 22 Ex. A-1 is the affidavit of Mr. Shamim Ahmed, Director (Land Management) (HQ), Delhi Development Authority, Vikas Sadan, New Delhi verified on 26.02.1997 whereby the said director deposed that the land in question which had been purported to have been acquired under the provisions of land acquisition Act was utilised in respect of housing scheme known as Vasant Kunj residential scheme. However, in view of the interim order, which had passed in the writ petition, the land was maintained as green area. In the composite land in respect of Vasant Kunj Residential scheme, the land in question is earmarked for police station and for a higher secondary school. Therefore, it was not feasible for the DDA to give the possession of the land as the same was part of a huge residential scheme which has been completed by the DDA.
The only alternative with the DDA was to allow an alternative plot to the petitioner. No land, similarly situate was available for allotment to the petitioner. In these circumstances, it was felt that it would be necessary to acquire the land and accordingly, notification u/s 4 of the Land Acquisition Act was issued on 19.02.1997 and the Lt. Governor of Delhi has also been pleased to invoke the provisions of section 17 (1) and 4 of the Land Acquisition Act. The Lt.Governor further directed that the provisions of section 5 (a) will not apply to this acquisition. It was also submitted in the said affidavit that the petitioner would be paid the market value of the land as obtaining on 19.02.1997 and this, as legally advised, would be sufficient compliance of the orders of the Hon'ble High Court of Delhi.
23 The land in question has already been acquired vide the notification dt.19.02.1997 u/s 4 of the LA Act and the compensation amount has been assessed in the name of four persons namely, Smt.Prakash Mehra w/o Sh.Girdhari Lal Mehra, Sh.Deepak Mehra, Maj.Gen. Kapil Mehra - both sons of Sh.Girdhari Lala Mehra & Ms.Sushma Khanna - daughter of Sh.Girdhari Lal Mehra as per the statement u/s 19 of the LA Act. Sh.Girdhari Lal Mehra is the original claimant of the land in question.
24 The counsel for the petitioners as well as the respondents have relied upon the perpetual leases, sale deeds, awards & the aforesaid judgments of the Hon'ble Supreme Court of India and the Hon'ble High Courts in support of their case as to what would be the fair market value of the on the date of notification u/s 4 of the LA Act i.e. 19.02.1997. In Ex.D-1, the land measuring 15 bighas 18 biswas situate in village Mehrauli, New Delhi was sold for Rs.1,44,000/- on 20.12.1996. In Ex.D-2, the land measuring 18 bighas 5 biswas situate in village Mehrauli, New Delhi was sold for Rs.1,36,000/- on 20.12.1996. Before considering and assessing the fair market value of the acquired land as on 19.02.1997, I would prefer to rely upon the judgment dt. 17.04.1998 in RFA No.186/86 titled Nand Kishore Vs UOI 73 (1998) DLT 108 ; 1998 (IV) AD (Delhi) 46 wherein, the issue for enhancement in compensation of the land situate in village Mehrauli was also involved. The land situate in village Mehrauli, New Delhi was acquired vide the notification dt. 21.11.1978 u/s 4 of the LA Act and the Hon'ble High Court of Delhi fixed the market value @ Rs.30,000/- per bigha. In the aforesaid case i.e. Sh.V.K.Goel Vs UOI & Anr (Supra), the Ld. ADJ, Delhi fixed the market value @ Rs.44,014/- as on 11.04.1988. In the present reference, the LAC, after taking into consideration the indicative price for agricultural land w.e.f. 01.04.1997, fixed the market value of the acquired land @ Rs.2,05,642.07 per bigha as on 19.02.1997 i.e. the date of notification u/s 4 of the LA Act. If 12% per annum escalation in price is calculated from 21.11.1978 to 19.02.1997 on the amount of Rs.30,000/-, it shall be Rs.1,02,000/- approx. and if, 12% per annum escalation in price is calculated from 11.04.1988 to 19.02.1997 on the amount of Rs.44,014/-, it shall be Rs.46,771/- meaning thereby, the market value of the acquired land would be at Rs.90,785/- per bigha as on 19.02.1997. The LAC has already awarded Rs.2,05,642.07 per bigha as on 19.02.1997 which is already the more amount in compensation awarded by the LAC as on 19.02.1997. Therefore, I have no hesitation to hold that the LAC has rightly assessed the market value of the acquired land at Rs.2,05,642.07 per bigha as on 19.02.1997. Thus, the petitioners are not entitled to enhancement in compensation. 25 In the award No.2/1998-99, the LAC has specifically stated that there is no well and structure on the land under acquisition, hence, no compensation is assessed for the same. The compensation in respect of the trees of the land will be paid later on vide supplementary award. Union of India, in its WS, has also stated that compensation regarding trees will be assessed and paid through supplementary awards since the valuation of the trees could not be made at the time of making of the instant awards. Supplementary awards regarding trees can be legally made. The petitioners have claimed Rs.20,00,000/- as costs of trees over the acquired land. The petitioners have not led any evidence to prove that the costs of the trees over the acquired land was Rs.20,00,000/- on the date of notification. Therefore, in the absence of any evidence, the petitioners are not entitled to claim the compensation of Rs.20,00,000/- for trees. However, the petitioners shall be entitled to the compensation amount of trees as per the supplementary award as admitted by the LAC/ Union of India. As far as the claim of the well is concerned, the LAC in the award No.2/1998-99 has stated that neither well nor any structure existed on the land under acquisition and no compensation was assessed for the same. Whereas, the petitioners have avered in their reference petition that there was an all weather, sweet water well measuring out diameter 14' -4'', inner diameter 12' - 00'', water level depth 62' - 00'' and claimed compensation of well at Rs.3,00,000/-. The petitioners have also not led any evidence rebutting the fact & contention of the respondents that there was no well on the land under acquisition. Therefore, in the absence of any evidence, the petitioner are also not entitled to the compensation of 'well'. These issues are answered accordingly. ISSUE NO. 4 26 The onus to prove this issue is also upon the petitioners. The petitioners have stated in the reference petition that the provisions of section 17 (1) of the Land Acquisition Act 1894 have been invoked, but the collector has failed to tender 80% of the compensation as estimated by him as required by the provisions of Sub Sec. 3 (A) of sec. 17. This is an illegality and the petitioners are entitled to be compensated by way of payment of interest on 80% of the value of compensation, at the rate of 15% per annum from 19.02.1997 till the date of payment.
Sub- Section 3 (A) of section 17 provides as under :
''Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3) :-
(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and
(b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prevented, the provisions of section 31, sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section.
27 As per the award no.2/1998-99, the LAC, while calculating the interest on the compensation of the acquired land, stated that the possession of the land under acquisition was taken over on 25.03.1983. Union of India, in its WS, has stated that non- tendering of 80% of the estimated compensation prior to taking of possession as per sub section 3 (A) of Section 17 will not make the award illegal and void. In view of the above, I hold that if the petitioners have not been given the benefit under sub section 3 (A) of section 17 of the LA Act, the petitioners shall be entitled for the interest from 19.02.1997 till the date of payment. This issue is answered accordingly.
ISSUE NO. 5 28 The land in question was acquired vide the notification dt. 19.02.1997 u/s 4 of the LA Act. Whereas, the possession of the land under acquisition was taken over on 25.03.1983 and the LAC vide his award no.2/1998-99 awarded the additional amount w.e.f. the date of the notification u/s 4 to date of award i.e. 19.02.1997 to 18.09.1998 (one year seven months).
Section 23 1 (A) reads as under :
''In addition to the market value of the land, as above provided, the court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market-value for the period commencing on and from the date of the publication of the notification under section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
Explanation - In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded.'' 29 The petitioners have relied upon the judgment reported in State of Punjab Vs (Smt.) Raminder Kaur & Anr 1998 LACC 610, notification u/s 4 of the LA Act was issued for acquisition of the land. Possession of the land was taken. Later on, notification acquiring the land was quashed by the Hon'ble High Court.
Another notification u/s 4 issued for acquiring the same land. It was held by the Hon'ble High Court of Punjab & Haryana that market value of the acquired land to be determined as on the date of second notification. It was further held that land owners would be entitled to interest on the amount of compensation from the date they were dispossessed.
30 Whereas, the counsel for the respodnents have relied upon the judgment reported in R.L.Jain (D) Vs DDA & Others AIR 2004 SC 1904, it was held that :
''In order to decide the question whether the provisions of S.34 of the Act regarding payment of interest would be applicable to case where possession has been taken over prior to issuance of notification under S. 4 (1) of the Act it is necessary to have a look at the Scheme of the Land Acquisition Act. Acquisition means taking not by voluntary agreement but by authority of an Act of Parliament and by virtue of the compulsory powers thereby confirmed. In case of acquisition the property is taken by the State permanently and the title of the property vests in the State. The Land Acquisition Act makes complete provision for acquiring title over the land, taking possession thereof and for payment of compensation to the landowner. The scheme of the Act does not contemplate taking over of possession prior to the issuance of notification under S. 4(1) of the Act and if possession is taken prior to the said notification it will dehors the Act. It is for this reason that both Ss. 11 (1) and 23(1) enjoin the determinatioin of the market value of the land on the date of publication of notification under S. 4(1) of the Act for the purpose of determining the amount of compensation to be awarded for the land acquired under the Act. These provisions show in unmistakable terms that publication of notification under S. 4 (1) is the sine qua non for any proceedings under the Act.'' It was further held that :
''In a case where the land owner is dispossessed prior to the issuance of preliminary notification under S. 4(1) of the Act the Governement merely takes possession of the land but the title thereof continues to be with the land owner. It is fully open for the land owner to recover the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the Government retains possession of the property. Where possession is taken prior to the issuance of the preliminary notification. It will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the land owner is entitled while determining the compensation amount payable to the landowner for the acquisition of the property. The provision of S. 48 of the Act land support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank rate may be awarded. Further, land owner had received almost double amount of compensation. Therefore, even on equitable ground he is not entitled to any amount from the date of dispossession till the date of second notification u/s 4 (1) of the Act.
31 In the present reference, the possession of the land in question was taken over on 25.03.1983 and the notification u/s 4 of the LA Act was issued on 19.02.1997. Therefore, in view of the provisions u/s 23 1 (A) of the LA Act and also the aforesaid judgment in the case of R.L.Jain (Supra), the petitioners are not entitled to the amount from the date of dispossession till the date of second notification u/s 4 (1) of the Act i.e. from 25.03.1983 to 19.02.1997. This issue is answered accordingly. ISSUE NO. 6 32 The LAC in his award no. 2/1998-99 has stated that the owner of the land in question is entitled to an additional interest @ 12% per annum on the then market value of the land i.e.Rs.26,400/- per bigha fixed by the then LAC vide award no.83/1982-83. However, the petitioners have averred in thier reference petition that under the heading 'interest' the Land Acquisition Collector has erred in granting additional interest @ 12% per annum on Rs.26,400/- per bigha as per award No.83/1982-83. It is further stated that it is not understood how award no.83/1982-83 which has been quashed by the Hon'ble High Court of Delhi has any relevance in granting interest in the present case. It is also stated that in award no.83/1982-83 the total amount was not Rs.26,400/- per bigha. In fact interest at the rate of 9% on the market value should have been granted from 25.03.1983 to 24.03.1984 and thereafter at the rate of 15% from 25.03.1984 to the date of payment on the total value assessed under section 34 of the Land Acquisition Act. The UOI in its WS has stated that the LAC has awarded additional interest in accordance with the provisions of the LA Act.
Section 34 of the LA Act reads as under :
''When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited.
Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifrteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.''
33 In the present reference, two notifications u/s 4 of the LA Act were also issued for acquisition of the land. Therefore, in view of the provisions u/s 34 of the LA Act and also the aforesaid judgment in the case of R.L.Jain (D) Vs DDA & Others (Supra), the petitioners are not entitled to interest amount u/s 34 of the LA Act from the date of dispossession till the date of second notification u/s 4 of the LA Act. This issue is answered accordingly.
RELIEF 34 In view of my findings on issue nos. 1, 2, 3, 5 & 6, the petitioners are not entitled to enhancement in compensation of the acquired land bearing Kh. nos.1300/1 min (697) measuring 12 bighas as per the statement u/s 19 of the LA Act. The petitioners are further not entitled to the compensation of well, trees, additional amount u/s 23 (1) (A) from 25.03.1983 till 18.09.1998 and also interest u/s 34 of the LA Act as claimed in the reference petition. However, the petitioners shall be entitled to the interest u/s 17 (3) (A) of the LA Act for the period from 19.02.1997 till the date of payment. However, the petitioners shall be entitled to the compensation amount of trees as per the supplementary award, if any, as admitted by the LAC/ Union of India. This reference is answered accordingly.
A copy of this award be sent to the concerned LAC to make the payment of the aforesaid amount of compensation to the petitioners within three months from today. 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 24.02.2007 ADDL. DISTRICT JUDGE (LAC)
DELHI
LAC No. 452/1/06
24.02.2007
Present- Petitioner in person
None for the respondents
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 aforesaid amount of compensation to the petitioners within three months from today. 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/24.02.2007