Delhi District Court
Mittal Traders vs Union Of India on 15 February, 2016
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
LAC No. 21/10/06
Unique Case ID No. 02401C0605782006
Area: Tilak Nagar Industrial Area,
Minakshi Garden, New Delhi
Date of Notification u/s 4 : 09.10.2003
Date of Notification u/s 6 : 03.12.2003
Award No.: 12/DC(W)/2004-2005 dated 15.07.2004
Mittal Traders,
through its Proprietress,
Smt. Renuka Jain,
C/o WZ-F-167, Uttam Nagar,
Near State Bank of India,
Delhi-110059. ....Petitioner
versus
1. UNION OF INDIA
Through Land Acquisition Collector,
District West, Delhi.
2. Delhi Metro Rail Corporation Ltd.
NBCC Place, Pragati Vihar,
Bhishma Pitamah Marg,
Pragati Vihar,
New Delhi - 110053. .....Respondents
Date of institution of the case : 15.07.2006
Date of reserving of judgment : 06.02.2016
Date of pronouncement of judgment : 15.02.2016
(Reference under Section 18 of Land Acquisition Act)
JUDGMENT
1. The Government of NCT of Delhi acquired total land measuring 2686.56 Sq. meter (1515.66 + 1170.90) LAC No. 21/10/06 Mittal Traders vs. UOI & Anr. 1/12 under Section 4 of the Land Acquisition Act, 1984 (hereinafter referred to as 'the Act') vide notification no. F.7(26)/2003/LA/L&B/MRTS (W)/ 11473 dated 09.10.2003 also under Section 6 vide notification no.
F.7(26)/2003/LA/L&B/MRTS (W)/20698 dated 03.12.2003. The land was notified under Section 17 (i) vide notification no. F7(26)/2003/LA/L&B/MRTS(W)/20699 dated 03.12.2003. The land was acquired for the purpose of Mass Rapid Transit System Project.
2. The Land Acquisition Collector (hereinafter referred to as 'the Collector') passed award no. 12/2004-2005 dated 15.07.2004 under Section 11 of the Act. The Collector determined the market value of the land under acquisition 1515.66 sqm @ Rs.17,870/- per sqm. and 1170.90 sqm. @ Rs.10,569/- per sqm.
3. According to statement of Section 19 of the Act filed by the Collector petitioners were shown as recorded owner of the acquired land.
Sl. Entry Name of Field Total Share Kind Details of
No. No. petitioners No. area of Trees/
Bigha - soil Buildings/
Biswa Crops
Mittal Traders through NIL NIL
its Prop. Smt. Renuka
Jain
4. The petitioner filed the reference under Section 18 of the Act against the findings and determination of the market value of the land/property made by the Land Acquisition Collector, West (hereinafter referred to as 'Collector (West)' has been referred to the reference court.
LAC No. 21/10/06 Mittal Traders vs. UOI & Anr. 2/12
5. In brief, the facts are that the petitioner firm Mittal Traders is a sole proprietor firm owned by Smt. Renuka Jain and was having its office and running business activities from property no. WZ-101, Meenakshi Garden, Tilak Nagar, Delhi-110018 (hereinafter referred to as 'the subject premises') for the last more than 20 years. The total area in occupation and possession of the petitioner was 1080 sq. feet on the ground floor in the building. It is stated that the subject premises was an authorized and approved commercial building and the entire surrounding of the building is highly densed with commercial activities.
6. It is stated that the petitioner had taken the subject premises on a long term agreement. Thereafter, the petitioner made alteration/amendment according to necessity and spent huge amount. Till acquisition the subject premises was maintained with high quality material and all sort of modern amenities/fixture and fittings were procured.
7. It is further stated that the petitioner is engaged in the business of trading and imports and was having seven staff members. The annual turn over of the petitioner was Rs.2,00,00,000/- and running in huge profits. The petitioner is also maintaining the Accounts Book. The staff engaged in the petitioner were very experienced and petitioner was commanding good reputation, goodwill and clientele in the market and was having almost monopoly in its filed.
8. It is further stated that the subject premises has been acquired vide above award and notice of acquisition under Section 6 of the Act was published after taking over the LAC No. 21/10/06 Mittal Traders vs. UOI & Anr. 3/12 possession and demolition of the subject premises. The petitioner filed its objections and claimed that in case the Authorities acquire the premises then it be paid a sum of Rs.3,00,00,000/- as compensation towards loss of goodwill, prestige and clientele; Rs.50,10,600/- towards damages to fittings and fixtures and for re-installation; Rs.10,30,750/- towards shifting expenses, connectivity and other ancillary and incidental expenses; Rs.2,10,30,300/- per annum towards earning as gross profits which would be suffered by the petitioner. The petitioner has already challenged the acquisition proceedings before the Hon'ble High Court in separate Writ petition.
9. It is further stated that as the premises was demolished before publication of notice under Section 6 of the Act, the petitioner could not take out his goods, lap top, computers, C.D. and other records. The Collector (West) awarded Rs.4,62,240/- for structure and nothing has been awarded for loss of business and other damages.
10. It is further stated that the subject premises was near to all wholesale markets of Delhi and being the single commercial market of West Delhi, the petitioner had number of customers from the surrounding areas. The subject premises was situated in very thick populated Abadi of Tilak Nagar. The entire area is fully developed area and was having all amenities/facilities of modern life like Electricity, Water, Telephone, Transport Schools, Colleges, Cinemas, Post Office, Hospitals and nursing Home etc. LAC No. 21/10/06 Mittal Traders vs. UOI & Anr. 4/12
11. The petitioner challenged the award, interalia, on the following grounds:
12. The Collector (West) has failed to consider that the premises was situated in heart of West Delhi and erred in fixing the market value of the land and structure at too low and inadequate rate. The Collector (West) has ignored the fact that the premises of the petitioner was an authorized and approved commercial premises and was surrounded all around by approved residential and commercial colonies much prior to issuance of notification under Section 4 of the Act.
13. The Collector (West) has failed to consider that the subject premise was situated in thick populated area in the wholesale market and the super structure raised by the petitioner was of high values. The valuation report submitted by petitioner was discarded without assigning reasons and valuation report of PWD was accepted unilaterally without assigning any reasons.
14. The Collector (West) has not considered the damages to be suffered by the petitioner on account of shifting of business and loss of goodwill, clientele, service of the staff and damages and loss of important documents as the building was demolished without publication of notice under Section 6 of the Act. The Collector (West) had also not correctly considered the amount to be spent by the petitioner on account of relocation of office, shifting expenses, installation of office equipments and other incidental expenses.
LAC No. 21/10/06 Mittal Traders vs. UOI & Anr. 5/12
15. It is prayed that petitioner be paid lump sum amount of Rs.3,00,00,000/- towards loss of goodwill, prestige and clientele; Rs.50,70,600/- towards damages of structure, installations, fittings and fixtures standing in the premises; Rs.10,30,750/- for relocation of office, shifting expenses, installation of office equipments and other incidental expenses; Rs.2,10,30,300/- per annum towards gross profit, loss of earnings due to suspension of business activities etc.; Rs.1,50,00,000/- towards actual damages suffered by the petitioner due to non-publication of the notification before taking possession; exemplary costs of 20 times with 30% solatium.
16. Written Statement filed by Union of India, in which preliminary objections taken that Delhi Land Reforms Act is applicable to the land in dispute. The land was occupied at the instance of DDA, which has also to make the payment for acquisition. The petitioner is not a recorded owner in the revenue record. The compensation has been assessed in the name of recorded owner as per revenue record. The land in question is not surrounded by any developed or undeveloped colony and can only be used for agriculture. There was no structure, treewell or tubewell on the land in question at the time of publication of notification under Section 4 of the Act. On merits, all the averments in reference petition are denied. It is stated that the compensation has been legally and correctly assessed by the Collector (West) and the same is adequate and just. Therefore, reference petition may be dismissed. The petitioner is also not entitled to compensation for loss of earnings severance charges.
LAC No. 21/10/06 Mittal Traders vs. UOI & Anr. 6/12
17. Respondent no.2/DMRC also filed written statement and stated that Mittal Traders has not been recorded owner/tenant of property in question. Property No. WZ-101, Meenakshi Garden, New Delhi comprised of 222.83 sq. mtr. of land owned by various persons. The petitioner has not placed any document on record to prove its title to the property in question. Respondent no.2 denied regarding the commercial activity or land in question. All the contents of the written statement and grounds are denied. It is stated that the petition may be dismissed with exemplary cost.
18. No rejoinder filed by petitioner to the written statement of both the respondents.
19. On the basis of pleadings, my Ld. Predecessor vide order dated 03.02.2007 framed the following issues:
1. What is the right, share and interest of the petitioner in the acquired land?
2. What was the market value of the acquired land on the date of issuance of notification u/s 4 of the LA Act?
3. To what enhancement in compensation, if any is the petitioner entitled?
4. Relief.
LAC No. 21/10/06 Mittal Traders vs. UOI & Anr. 7/12
20. Petitioner Smt. Renuka Jain, Proprietress of Mittal Traders (only affidavit filed and not tendered in evidence) in support of her case only filed affidavit and failed to step into the witness box; PW2 Sh. Hari Dutt Kaushik, Kanoongo, LAC (West) office, Rampura; PW3 Sh. Rameshwar Dayal, Registered Architect; PW4 Sh. G.C. Sardana, Head Clerk, L & B Department, Vikas Bhawan, New Delhi. As per statement of Ld. Counel for the petitioner, petitioner evidence was closed vide order dated 19.08.2015.
21. Respondent no.1 - Union of India, as per statement of Sh. Vijay Sharma, Advocate tendered award no. 12/DC(W)/2004-2005 as Ex. R-1. Statement of Sh. A.S. Rao, Law Officer of respondent no.2/ DMRC tendered certified copies of judgments dated 15.07.2008 in LAC No. 40/05 in case titled 'Khush Bakt Rai vs. UOI' decided by Sh. O.P. Gupta, Ld. ADJ as Ex. R2 - 1; judgment dated 15.07.2008 in LAC No. 50/05, titled 'M/s. Suri Brothers Vs. UOI' decided by Sh. O.P. Gupta, Ld. ADJ as Ex. R2 - 2; judgment dated 04.05.2009 in LAC No. 145/09 titled 'Harbans Singh vs. UOI' decided by Sh. Ashwani Sarpal, Ld. ADJ as Ex. R2 - 3 and judgment dated 19.04.2010 in LAC no. 80/09 titled 'Madan Lal Khurana vs. UOI' decided by Sh. Ashwani Sarpal, Ld. ADJ as Ex. R2 - 4. Thereafter, evidence was closed on behalf of respondent no.2/ DMRC.
22. I have heard Sh. I.S. Dahiya, Ld. Counsel for the petitioner, Sh. Vijay Sharma, Ld. Counsel for the Union of India and Sh. A. S. Rao, Law Officer of respondent no. 2/DMRC and also gone through the written submissions. My findings on issues are as under:
LAC No. 21/10/06 Mittal Traders vs. UOI & Anr. 8/12 ISSUE NO. 1 to 3
23. The petitioner filed affidavit but failed to appear in the witness box. Therefore, the affidavit cannot be read and relied because neither examination in chief recorded nor witness appeared for cross-examination. In the absence of testimony of proprietress Smt. Renuka Jain, petitioner failed to prove the reference petition.
24. The petitioner examined PW3 Sh.Rameshwar Dayal, the Valuer. He also proved this valuation report Ex. PW1/15. In the cross-examination, he deposed that he had visited the property on 26th / 27th November, 2003 i.e. one month prior to the day of acquisition of the property i.e. 23.12.2003. He admitted that he did not measure the premises personally. He further admitted that initially area was residential but later on converted into commercial. The year of construction informed by the petitioner was 2002. He further admitted that the petitioner approached him for assessing the value of disputed property. However, he denied the suggestion that the report is false. It is pertinent to mention here that in mid November, the petitioner himself approached the PW3 Sh.Rameshwar Dayal for assessing the valuation. It suggests that he has already the knowledge of acquisition, therefore, prepared himself from all corners. Therefore, it suggests that he must have taken all the steps to secure all his belongings and prepared himself for acquisition, which has to be followed on 23.12.2003. I have gone through the report Ex. PW1/15. PW3 admitted that the report is prepared on the instructions of the petitioner. The LAC No. 21/10/06 Mittal Traders vs. UOI & Anr. 9/12 report has not mentioned what are the approved standards taken by valuer for determining the valuation of land, rent, cost of construction and other technical details on 06.12.2003. The notification of acquisition was in force since October, 2003 and for Metro Project. But the Valuer has not joined any official of land department for preparation of his report. He has not annexed the Government approved rates or any other authenticated government document which are the basis of his valuation report. He has also not conducted joint inspection. The report is also not certified by any governed concerned official. It is prepared on the instructions of the petitioner, therefore, does not inspire confidence and it cannot be relied in the present circumstances being ex-parte report. The valuation report without associating the representative of LAC is liable to be rejected. It is supported by the judgment of 'Kalawati Devi vs. Haryana State' 1996 (2) PLR 471.
25. The fundamental basis of claim of all the compensation is the loss and profit of the business activities of the petitioner. However, petitioner failed to appear in the witness box nor examined any witness or produced any document of her business profit after shifting to the alternative premises as alleged. It is pertinent to mention here that as per averments in para 5 of petition, petitioner engaged in trading and import business, however, there is no detail provided of the goods and no requisite documents for carrying out import business filed on record. Petitioner also not examined any witness from the Import Export Department to prove the registration, which is mandatory for carrying out import business. She has not filed any statement LAC No. 21/10/06 Mittal Traders vs. UOI & Anr. 10/12 of account, statement of Income Tax Returns or any correspondence that any document of import or trading or statement of bank account showing the transaction or payment of salary to the employed staff. No agreement or rent receipt filed on record. There is no document filed on record showing that after acquisition, she has been carrying on business from the alleged alternative premises. During whole trial, she failed to produce any rent receipt. Therefore, this plea is unbelievable and not established by the petitioner.
26. The petitioner has not produced any documents for filing of Annual Returns with the Income Tax Department, which is mandatory, may be petitioner is exempted from Income Tax being Importer or Exporter.
27. Hence, on the basis of above observation and discussion, the petitioner miserably failed to prove and establish entitlement for compensation of Rs.3,00,00,000/- towards loss of goodwill, prestige and clientele; Rs.50,70,600/- towards damages of structure, installations, fittings and fixtures standing in the premises; Rs.10,30,750/- for relocation of office, shifting expenses, installation of office equipments and other incidental expenses; Rs.2,10,30,300/- per annum towards gross profit, loss of earnings due to suspension of business activities etc.; Rs.1,50,00,000/- towards actual damages suffered by the petitioner due to non-publication of the notification before taking possession; exemplary costs of 20 times with 30% solatium.
28. Therefore, petitioner failed to establish right, share and interest in the acquired land and there is no ground LAC No. 21/10/06 Mittal Traders vs. UOI & Anr. 11/12 for enhancement of any compensation. Hence, issue nos. 1 to 3 are decided against the petitioner and in favour of the respondents.
ISSUE NO.4 (RELIEF)
29. In view of my discussion on issue nos. 1 to 3, the petitioner is not entitled for enhancement of any compensation as prayed in the petition. The reference is answered accordingly.
30. A copy of the judgment be sent to Land Acquisition Collector (West) for information and necessary action.
31. Decree sheet be prepared accordingly.
32. File be consigned to Record Room.
Announced in the open court today the 15th day of February, 2016.
(Sanjay Kumar) ADJ-02,West/Delhi 15.02.2016 LAC No. 21/10/06 Mittal Traders vs. UOI & Anr. 12/12