Delhi District Court
Sh. Farzand Ali vs ) Union Of India on 20 March, 2023
IN THE COURT OF SH. AJAY GARG,
ADDITIONAL DISTRICT JUDGE-01,
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
LAC No.18/2018
CNR No. DLET01-009729-2018
In the matter of :-
Sh. Farzand Ali
S/o Late Sh. Aflatoon
R/o 252, Khuraji Khas, Delhi-51
.....Petitioner
Versus
1.) Union of India
Through Land Acquisition Collector
Dist. East
2.) East Delhi Municipal Corporation
Through its Dy. Commissioner
Shahdara (East Zone), Karkardooma,
Delhi.
.....Respondents
Award No. 15/DC (East) 2004-05
Village Khurejee Khas
Date of Institution : 04.09.2006
Reserved on : 20.03.2023
Date of Decision : 20.03.2023
Notification U/s 4 : F.8(14)/98/L&B/LA/4176 dt.
16.06.2002.
Notification U/s 6 : F.8(19)/98/L&B/LA/4638 dt.
09.06.2003
Notification U/s 17 : F.8(19)/98/L&B/LA/4640 dt.
09.06.2003
Reference Petition U/s 18 of the Land Acquisition Act, 1894.
LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 1 of 29
JUDGMENT
1. This judgment shall decide the reference petition no. 18/2018 preferred by petitioner, Sh. Farzand Ali for the enhancement of the compensation against compulsory acquisition of his 1/4th undivided share in ancestral land out of land measuring 1937.17 sq. meters (2 bigha 6 biswa) in Khasra no.10/16, main Khureji Khas vide Award No. 15/DC (East) 2004- 05 which was approved by Secretary (Revenue) on 26.08.2004 and was announced by the Land Acquisition Collector (hereinafter referred to as "LAC"), East on 06.09.2004.
To decide the reference U/s 18 L.A. Act r/w statement U/s 19 of the Act sent by the LAC Delhi, the relevant dates and facts which are necessary for adjudication in the present matter are being given herein under:-
i) Date of notification U/s 4 of the Act : 16.06.2002
ii) Date of notification U/s 6 of the Act : 09.06.2003
iii) Date of notification u/s 17 of the Act : 09.06.2003
iv) Date of award : 06.09.2004
v) Area of the locality : Khureji Khas
vi) Project :Peripheral roads/ drains
vii) The land use of area as per award : Residential
viii) Petition referred to court on : 04.09.2006
2. Background:- The petitioner is owner of 1/4th undivided share in land measuring 1937.17 sq. meters (2 bigha 6 biswa) in Khasra no.10/16, main Khureji Khas situated in the revenue estate of Village Khureji Khas. The said land was compulsorily acquired by the LAC vide award No. 15/DC (East) LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 2 of 29 2004-05. Feeling aggrieved, the petitioner challenged the legality and validity of the acquisition proceedings and the quantum of the compensation awarded in respect of the land under acquisition by LAC. The petitioner has not accepted the findings and determination of the LAC, who grossly erred in awarding compensation at the rate of Rs.3395/- per sq. meter which is on the lowest side in the area. It is further averred that the market value of the land was not less than Rs.30,000/- per sq. meter in the year 2002-2003 being commercial land. Interest on the solatium has been claimed since not awarded by the LAC.
Hence, this reference u/s 18 of L.A. Act.
3. Upon notice, respondent Union of India appeared and filed their written statement.
In their written statement, Union of India stated that Delhi Land Reforms Act is applicable to the land in dispute. The land was acquired at the instance of MCD, which has to make the payment. MCD is a necessary and proper party for adjudication of the proceedings and it be impleaded as party in the case. The correctness of khasra numbers, their area and extent of share of the petitioners admitted only to the extent, as specified by LAC in his statement U/s 19 of LA Act. The land in question is not surrounded by any developed or undeveloped colony and can only be used for agricultural purposes. There was no structure, tree, well or tube well on the land in question at the time of publication of notification U/s 4 of LA Act. In reply on merits, it is averred that the compensation has been legally and correctly assessed by the LAC and same is adequate and just. The petitioners are not entitled for any enhancement of compensation LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 3 of 29 and prayed for dismissal of the reference petitions.
Vide order dated 24.01.2007, MCD was impleaded as respondent no.2 being beneficiary of the acquisition. Upon notice, MCD filed their reply stating that there is no legal infirmity, perversity or illegality in the award No.15/DC(East)2004-05 land measuring 1937.12 (2 bighas 6 biswa) in khasra No.10/16 Khurejee Khas. Respondent no.1 / Union of India vested with the powers under the provisions of LA Act to determine the compensation, therefore, the amount of compensation determined by the LAC @ Rs.3395/- after considering the matter in its entirety, is legally perfect and is in accordance with law. In reply on merits, it is averred that petitioner is not entitled for enhancement of compensation, once amount determined by LAC, is accepted. Hence, award passed is in consonance with the provisions of LA Act. The petitioner is not entitled for enhanced compensation as alleged and after denying other averments, it has sought dismissal of petition.
4. From the pleadings of the parties, following issues were framed vide order dated 09.07.2007:-
1. What was the market value of the land in question at the time of issuance of notification U/s 4 of the L.A. Act? Onus on parties.
2. Whether the petitioner is entitled to enhancement in compensation, if so, to what amount? OPP
3. Relief.
5. Vide order dated 05.03.2008 passed by the Hon'ble Delhi High Court, the reference petition bearing LAC No.19/18 LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 4 of 29 was treated as lead case and consolidated evidence was recoded in that case and adopted in connected reference petitions bearing LAC No.15/18, 18/18, 20/18 & 22/18.
In order to substantiate the case, one of the petitioner, namely Sh. Anand Prakash Gupta, in reference petition No.19/18, has stepped in witness box as PW1 and tendered his evidence by way of affidavit Ex. PW-1/A. In his affidavit i.e. Ex.PW-1/A, he has placed reliance on the documents Ex.PW1/1 to Ex.PW1/41, which are as under:-
Ex.PW1/1 - perpetual lease deed.
Ex.PW1/2 - certified copy of lease deed dt.08.07.2004. Ex.PW1/3 - certified copy of lease deed dt. 06.05.2005. Ex.PW1/4 - certified copy of sale deed dt. 12.04.2006. Ex.PW1/5 -certified copy of perpetual lease deed dt. 18.11.2005. Ex.PW1/6- certified copy of perpetual lease deed dt. 31.05.2002. Ex.PW1/7 - certified copy of sale deed dt. 25.07.2005. Ex.PW1/8- certified copy of perpetual lease deed dt. 01.09.2005. Ex.PW1/9 - photographs of site of the land. Ex.PW1/10 - photographs of adjoining area. Ex.PW1/11 - certified copy of judgment dt. 23.01.2008. Ex.PW1/12 - certified copy of demarcation report dt.11.10.1999. Ex.PW1/13 - certified copy of report dt. 12.03.2004 Ex.PW1/14 - certified copy of sale deed dt. 31.10.2005. Ex.PW1/15 - certified copy of conveyance deed dt. 12.05.2005. Ex.PW1/16 - certified copy of indenture of sale dt. 19.04.2005. Ex.PW1/17 - certified copy of sale deed dt. 21.10.2005. Ex.PW1/18 - certified copy of sale deed dt. 08.10.2004. Ex.PW1/19 - certified copy of agreement to sell dt. 11.05.2005. Ex.PW1/20 - certified copy of proposal-cum-resolution no. 227 LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 5 of 29 dt. 14.09.1998.
Ex.PW1/21 - certified copy of letter dt. 02.11.1999 scribed by Dy. Director, Shahdara Zone, MCD to SDM/LAC, Preet Vihar.
Ex.PW1/22 - certified copy of letter dt. 19.02.2001 scribed by Dy. Director, Shahdara Zone, MCD to SDM/LAC, Preet Vihar.
Ex.PW1/23 - certified copy of letter dt. 24.04.2001 scribed by Dy. Director, Shahdara Zone, MCD to SDM/LAC, Preet Vihar.
Ex.PW1/24 - certified copy of judgment dt. 03.09.1973 passed by the Revenue Assistant.
Ex.PW1/25 - certified copy of judgment dt. 16.04.1975 passed by Sh. HKS Malik, Ld. ADJ.
Ex.PW1/26 - certified copy of judgment dt. 21.04.1995 in RSA No. 50/1976.
Ex.PW1/27 - certified copy of judgment dt. 14.05.1998 passed by Division Bench of the Hon'ble High Court. Ex.PW1/28 - certified copy of judgment dt. 05.12.2001 in CR No. 245/2001.
Ex.PW1/29 - certified copy of order passed by the Hon'ble Apex Court in SLP (Civil) No.1054/2002 dt. 25.01.2002. Ex.PW1/30 - certified copy of order dt. 24.07.2006 in Contempt Case No. 59/2006.
Ex.PW1/31 - certified copy of order dt. 16.11.2006. Ex.PW1/32 - certified copy of order dt. 17.04.2007 passed by the Hon'ble High Court.
Ex.PW1/33 - original letter dt. 30.04.2008. Ex.PW1/34 - original envelope in which original letter was LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 6 of 29 received.
Ex.PW1/35 - signed office copy of notice to produce documents dt. 22.07.2008.
Ex.PW1/36 to Ex.PW1/39- original postal receipts. Ex.PW1/40 & Ex.PW1/41 - certified copy of Kabza Karwahi and site plan respectively.
6. PW2 Sh. Narottam Sharma, Assistant, Commercial Land Branch, DDA, Vikas Sadan, Near INA, New Delhi has brought the office copy from the office of DDA in respect of perpetual lease deed dated 01.09.2005 executed by the President of India in favour of Parmesh Construction Co. Ltd. The same was exhibited as Ex.PW1/8. PW2 has been exhaustively cross- examined by counsel for Union of India and counsel for MCD and discharged.
PW3 Sh. Pooran Chand, Assistant, Old Scheme Branch from the office of DDA, who has produced the original records of plot No.33, 34 & 35, Block No.8, measuring 91.20 sq. meters each situated in the colony commonly name Geeta Colony, Delhi.
PW4 Sh. Raj Kumar Rana, Assistant, LAB Residential, C-Block, DDA, Vikas Sadan, INA, Delhi, who has produced the records of plot No.C-160-A & D-272, ad measuring 135.58 and 174.78 sq. meters respectively situated in the colony commonly name Vivek Vihar, Delhi. No other witness is examined by the petitioner.
All the witnesses were exhaustively cross-examined by ld. counsel for respondents.
Thereafter, vide separate statement, petitioner's LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 7 of 29 evidence was closed on 15.11.2010.
7. In defence, respondent no.1/Union of India has tendered the award No.15/DC(East)/2004-05, passed by the LAC, which was announced on 06.09.2004, as Ex.R1 and photocopy of sale deed executed on 17.02.2003 as mark A. Ld. Counsel for MCD had adopted the evidence led by respondent no.1 and separate statement was recorded to this effect.
Thereafter, respondents' evidence was closed on 05.11.2011. After conclusion of evidence, final arguments were heard and the judgment dated 28.08.2015 was passed by my Ld. Predecessor. Feeling aggrieved, the petitioner challenged the said judgment before the Hon'ble High Court, thereby, seeking enhancement of the compensation amount awarded by this Court. Upon which the Hon'ble High Court, vide its order, dated 22.03.2018, set aside the impugned judgment of this Court and remanded back the matter to this Court, for recording of additional evidence and for passing order afresh, in accordance with law.
8. In view of the directions of the Hon'ble High Court, Sh. Sanjay Sharma, Administrative Officer, Land and Estate Departement, EDMC (R2W1) has tendered his affidavit Ex.R2W1/A and relied upon Ex.R2W1/1 (Copy of notification bearing no. L&DO/F-24013/3/2013-CDN/106 dated 02.05.2017). The cross-examination of R2W1 remained pending since 20.09.2019 and vide order dated 11.10.2022, one last and final opportunity was granted to MCD to lead RE. However, despite umpteen opportunities, the evidence of R2W1 was not concluded LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 8 of 29 and vide order dated 09.11.2022, respondent's evidence was closed on the submissions of respondent no.2 that the matter be listed for final arguments as they do not wish to lead RE.
9. Arguments heard at length. Record perused. Considered. Accordingly, my issue-wise findings are as follows:-
Issue No.1 & 2:
1. What was the market value of the land in question at the time of issuance of notification U/s 4 of L.A. Act? Onus on parties.
2. Whether the petitioner is entitled to enhancement of compensation of the land in question, if so, to what amount? OPP
10. Onus to prove this issue is upon the parties. Admittedly, the Union of India or the beneficiary i.e. MCD has not led any positive evidence to support the awarded market value of the land in question except the award Ex.R-1 and sale deed dated 17.02.2003 i.e. Mark A. Sale Deed (Mark A) cannot be relied upon as neither proved by filing certified copy nor pertains to the vicinity of the area in question. Even after the matter was remanded back to this Court for fresh hearing by order of the Hon'ble High Court, none of the respondent has led any evidence. Though MCD produced R2W1- Sh. Sanjay Sharma, Administrative Officer, Land and Estate Department, EDMC, who tendered evidence i.e. Ex.R2W1/A, however, the same is of no use as he was not produced for cross-examination by the petitioner, thus his testimony cannot be looked into. Even otherwise, on subsequent date i.e. 09.11.2022, respondent evidence was closed at the instance of respondent no.2 only. On LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 9 of 29 the other hand, petitioner in support of his claim has relied upon the following sale deeds:-
Ex.PW Date Locality Area Total Amount Amount Nature of per per property sq.m. sq.m.
Ex.PW1/1 06.01.2004 Vivek Vihar 135.58 27,42,395/- 20,227/- Residential
Perpetual Plot
Lease Deed
Ex.PW1/2 08.07.2004 Geeta 91.20 15,05,399/- 16,506/- Residential
Perpetual Colony Plot
Lease Deed
Ex.PW1/3 06.05.2005 Geeta 91.20 16,21,198/- 17,776/- Residential
Perpetual Colony Plot
Lease Deed
Ex.PW1/4 12.04.2006 Geeta 91.20 17,04,000/- 18,684/- Built-up
Agreement Colony Property
to sell
Ex.PW1/5 18.11.2005 Geeta 91.20 16,43,256/- 18,018/- Residential
Perpetual Colony Plot
Lease Deed
Ex.PW1/6 31.05.2002 Vivek 174.78 32,70,000/- 18,709/- Residential
Perpetual Vihar Plot
Lease Deed
Ex.PW1/7 25.07.2005 Dayanand 260.4 1,29,50,000/- 49,750/- Residential
Sale Deed Vihar Built-up
Property
Ex.PW1/8 01.09.2005 Karkardo- 192 5,40,10,000/- 2,81,302/ Commercial
Perpetual oma - Plot
Lease Deed
Ex.PW1/14 31.10.2005 Anand 301 75,00,000/- 24,916/- Residential
Sale Deed Vihar Built-up
Property
Ex.PW1/15 12.05.2005 Jhilmil 272.8 50,00,000/- 18,328/- Residential
Conveyance Tahirpur Built-up
Deed Property
Ex.PW1/16 19.04.2005 Preet 476.52 1,30,00,000/- 27,281/- Residential
Indenture of Vihar Plot
Sale
Ex.PW1/17 21.10.2005 East Azad 431.4 55,00,000/- 12,749/- Residential
Sale Deed Nagar Built-up
Property
Ex.PW1/18 08.10.2004 Preet Vihar 309.3 1,60,00,000/- 51,729/- Residential
LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 10 of 29
Sale Deed Built-up
Property
Ex.PW1/19 11.05.2005 Laxmi 925.01 2,41,45,167/- 26,102/- Commercial
Agreement Nagar Property
to Sell Floor
11. Further, ld. Counsel for the petitioner in support of her contentions has also relied upon the judgment passed by another Court in case titled as "Chandra Pratap Singh Vs. Union of India & Anr.". Apart from this, the petitioner has also claimed the damages at the rate of 6% per annum upon the market value from the actual date of taking over the possession in the year 1970 till the date of notification i.e. 16.06.2002.
Per contra, ld. Counsel for the respondent no.1 argued that the land in question was acquired for the purpose of public park wherein the beneficiary is the MCD, thus, merely because of existence of park and milk booth, the land cannot be considered as commercial one since it is an agricultural land without any amenities or public utilities. He further submits that the land in question was acquired for the welfare of the residents of the area and thus have no commercial value. In support, he has relied upon the judgments of the Hon'ble Supreme Court titled as "India GOA Housing Board Vs. Rameshchandra Govind Pawaskar & Anr." and "Lal Chand Vs. Union of India". He further submits that commercial rates of the land in question cannot be awarded considering the situation and potential value of the acquired land. He further submits that the lease deeds/ sale deeds placed on record by the petitioner cannot be relied upon as they have not been proved by the vendor and vendee. In support he has relied upon the judgments titled as "Lal Chand Vs. Union of India, AIR 2010 SC 170" and "P. Ram Reddy Vs. Land LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 11 of 29 Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad etc. JT 1995 (1) S.C. 593". He further submits that even the judgment of another Civil Court titled as "Chandra Pratap Singh" (supra) cited by the petitioner cannot be considered as it pertains to the area of Jhilmil Tahirpur which is at the distance of 7 to 8 kms. He further submits that while assessing the market value of the acquired land, the sale instances of the adjoining land cannot be considered because every land has different potentialities as held by the Hon'ble Supreme Court in case titled as "Kanwar Singh & Ors. Vs. Union of India"
AIR 1999 SC. He also argued that the circle rates cannot be taken into consideration for assessing the market value of the land in question and rather the sale deed is the best evidence for assessing the market value, if proved, according to law. In support, reliance was placed upon judgment of the Hon'ble Supreme Court titled as "Government of NCT of Delhi & Ors. Vs. Ajay Kumar & Ors.". Ld. Counsel also submitted that since the determination and compensation in the instant case were made on the basis of the report of Expert Committee, i.e. Schedule of Rates circulated by L&DO, Ministry of Urban Affairs and Employment, it is just and adequate. He further submits that acquired land of Khureji Khas is inferior to Geeta Colony as later one is splendid colony and cannot be compared with the land which is purely underdeveloped or without any amenities. He further submits that additional damages/ compensation claimed qua alleged possession by the MCD is not maintainable since the physical possession of the land under acquisition has been taken by the Land and Building Department on 24.01.2007 only. Even otherwise, no plea in this regard has LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 12 of 29 been taken by the petitioner before the LAC and thus cannot be claimed at this juncture. Finally, he submits that the market value of the land in question awarded by the Ld. LAC is just and appropriate. Thus, petitioner is not entitled to further enhancement in the said rates.
12. Respondent no.2 i.e. MCD has also raised similar arguments in support of their contentions and relied upon the following case laws:-
i) Shaji Kariakose & Anr. Vs. Indian Oil Corporation & Ors: AIR 2001 SC 3341
ii) Cement Corporation of India Ltd. V Purya & Ors.
reported in VI (2004) SLT 276 = IV (2004) CLT 164 (SC) = (2004) 8 SCC 270
iii) Administrator General of West Bengal V Collector, Varanasi.
iv) A.P. Housing Board Vs. K. Mohan Reddy.
v) G.M. Oil and Natural Gas Corporation Ltd. Vs. Ramsehbhai Jivanbhai Patel.
vi) Union of India Vs. Savitri Devi.
vii) Lal Chand Vs. Union of India & Anr.
viii) Government (NCT of Delhi) & Ors. Vs. Ajay Kumar & Ors.
13. Submissions heard. Considered. Before adverting to the issue in question, I deem it appropriate to go through the statements of Objects and Reasons of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 which repealed the earlier Land Acquisition Act, 1894.
14. The Land Acquisition Act, 1894 has been repealed and has been replaced by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 13 of 29 Resettlement Act, 2013. The 'Statement of Objects and Reasons' preceding the Act contains on insight as to why it was thought necessary to repeal the 1894 Act. Relevant portion of the same is reproduced as under:-
"Statement of Objects and Reasons- the Land Acquisition Act, 1894 is the general law relating to acquisition of land for public purposes and also for companies and for determining the amount of compensation to be made on account of such acquisition. The provisions of the said Act have been found to be inadequate in addressing certain issues related to the exercise of the statutory powers of the State for involuntary acquisition of private land and property. The Act does not address the issues of rehabilitation and resettlement to the affected persons and their families.
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7. There is an imperative need to recognize rehabilitation and resettlement issues as intrinsic to the development process formulated with the active participation of affected persons and families. Additional benefits beyond monetary compensation have to be provided to families affected adversely by involuntary displacement. The plight of those who do not have rights over the land on which they are critically dependent for their subsistence is even worse. This calls for a broader concerted effort on the part of the planners to include in the displacement, rehabilitation and resettlement process framework, not only for those who directly lose their land and other assets but also for all those who are affected by such acquisition. The displacement process often poses problems that make it difficult for the affected persons to continue their traditional livelihood activities after resettlement. This requires a careful assessment of the economic disadvantages and the social impact arising out of displacement. There must also be holistic effort aimed at improving the all-round living standards of the affected persons and families.
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13. To ensure comprehensive compensation package for the land owners a scientific method for calculation of the market value of the land has been proposed. Market value calculated will be multiplied by a factor of two in the rural areas. Solatium will also be increased up to 100 per cent of the total compensation. Where land is acquired for urbanization, 20 per cent of the developed land will be offered to the affected land owners.
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14. Comprehensive rehabilitation and resettlement package LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 14 of 29 for land owners including subsistence allowance, jobs, house, one acre of land in cases of irrigation projects, transportation allowance and resettlement allowance is proposed.
15. Comprehensive rehabilitation and resettlement package for livelihood losers including subsistence allowance, jobs, house, transportation allowance and resettlement allowance is proposed.
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17. Twenty-five infrastructural amenities are proposed to be provided in the resettlement area including schools and play grounds, health centres, roads and electric connections, assured sources of safe drinking water, Panchayat Ghars, Anganwadis, place of worship, burial and cremation grounds, village level post offices, fair price shops and seed- cum-fertilizers and storage facilities.
18. The benefits under the new law would be available in all the cases of land acquisition under the Land Acquisition Act, 1894 where award has not been made or possession of land has not been taken".
15. The statement of objects and reasons preceding the 2013 Act reveal that the legislature was aware that the 1894 Act has proved to be grossly inadequate when it came to assessment of compensation for lands which are compulsorily acquired. The 1894 Act also did not provide for rehabilitation and resettlement of persons affected by acquisition. Under the 2013 Act, solatium has been increased to 100% as compared to 30% under the 1894 Act. Further, for rural areas, the market value arrived at is to be multiplied by a factor of "2". Where land is acquired for urbanization, 20% of the developed land will be offered to the land owners. It is further provided that the benefits under the 2013 Act were proposed to be available in all cases of acquisition under 1894 Act where award had not been passed or possession had not been taken over.
LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 15 of 29
16. Section 26 of the 2013 Act provides the manner in which the Collector is to determine market value of lands. It lays down the criteria to be followed by the Collector and prescribes that the Collector shall adopt, amongst others, the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated. Thus the 2013 Act statutorily incorporated circle rates for consideration for determining market value. Section 24 of the 2013 Act provides that in certain cases, land acquisition process under the 1894 Act shall be deemed to have lapsed. It provides that in cases where the Collector has not rendered his award then the provisions of 2013 Act would apply. Section 24(2) further provides that where an award has been passed by the Collector five years or more prior than the commencement of the 2013 Act but physical possession of acquired lands has been taken over or the compensation has not been paid, the said proceedings shall be deemed to have lapsed. Thus, the intent and purport of the 2013 Act was to provide the substantial benefits available under the 2013 Act to as many persons as possible. Unfortunately, for the petitioner, herein, he does not fall within the parameters of Section 24 of the 2013 Act so as to be entitled to its benefits.}
17. Now coming to the issue before hand, with the passage of time, the law for ascertainment of the market value of the acquired land has evolved and various methods have been adopted by the Higher Courts to ascertain the market value of the land under acquisition. From a holistic readings of the various pronouncements of the various Higher Courts, the following LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 16 of 29 guidelines can be safely culled out as under:-
"• While determining the amount of compensation payable in respect of lands acquired by the State, market value of the same is to be determined. The basic principle is that market value means the price that a willing purchaser would pay to a willing seller for a property having due regard to its existing condition with all existing advantages and its potential possibility when laid out in the most advantageous manner excluding any advantage due to carrying out of the scheme for which the property had been compulsorily acquired.
• There are different methods ascertaining market value. The methods of valuation which may be adopted are (i) opinion of experts (ii) price paid within reasonable time (ii) any bonafide transaction of purchase of land acquired or land adjacent having similar advantages (iii) capitalization method or its potential value for acquisition or developed or developing colonies or nearness to roads etc. • The comparable sales method is the preferred mode over other methods of valuation. The most relevant piece of evidence which can form basis of determining market value are sale deeds pertaining to portion of land belonging to the same area which has been acquired, executed prior to the date of notification under Section 4 of the Act. Factors to be kept in mind for determining market value on comparable sale method are that (i) sale must be a genuine transaction (ii) sale must have been executed at a time proximate to the date of issuance of notification under Section 4 of the Act, (iii) land covered by the sale must be in the vicinity of the acquired land,
(iv) land covered by the sale must be similar to the acquired land and (v) the size of the plot of land covered by the sale must be comparable to the and acquired. If all the factors are satisfied then there is no reason why sale value of the land covered by the sales be not given for the acquired land. However if there is dissimilarity regarding location, sale, site or nature of land between the land covered by sale and lands acquired, it is open to the Court to proportionately reduce the compensation for the acquired lands than what is reflected in the sale depending upon advantages attached to the land.
• Where there were several exemplars with reference to similar land it was a general rule that highest exemplar, if the Court was satisfied that the same was a bonafide transaction, has to be considered and accepted. When land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bonafide transaction between a willing purchaser and a willing seller near about the time of acquisition.
• Market value of the land is to be determined as on the date of publication of notification under Section 4 (1) of the Act and not as it prevails on the date on which land has been fully developed. In the absence of any direct evidence, the Court may take recourse to other methods. Admissible evidence in which cases would be the LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 17 of 29 judgments and awards passed in respect of acquisition of land made in the same village or neighbouring village. Such judgments and awards in the absence of any other evidence like sale deeds reports of experts and other relevant evidence, would be evidentiary value where notification under Section 4 of the Act is subsequent to a judgment or an award in respect of an earlier acquisition of land in the same or neighbouring villages. Increase in the market value as determined in the previous award can be given. The converse i.e. where notification under Section 4 (1) of the Act is subsequent, then a decrease can also be effected for arriving at a market value. • Compensation cannot be ascertained with mathematical accuracy. Comparable instances have to be identified having regard to proximity of time as well as proximity with respect to situation. In order to determine market value of land acquired suitable adjustment will have to be made for various positive and negative factors which have been described as under:-
Positive factors Negative factors
(i) largeness of area
(i) smallness of size
(ii) situation in the interior at a
(ii) proximity to a road distance from the road
(iii) frontage on a road
(iii) narrow strip of land with very
(iv) nearness to developed area small frontage compared to depth
(v) regular shape
iv) lower level requiring the
(vi) level vis-a-vis land under depressed portion to be filled up acquisition
(v) remoteness from developed
(vii) special value for an owner locality of an adjoining property to whom it
vi) some special disadvantageous may have some very factors which would deter a special advantage.
purchaser • Section 23 of the Act lists the factors to be considered by the Court to determine compensation. It provides that the claimant will be entitled to market value of the land as on the date of publication of notification under Section 4(1) of the Act. He would also be entitled to damages if any suffered by him because of acquisition of land. The function of the Court in determining the amount of compensation is to ascertain market value of the land as on the date of notification under Section 4 of the Act. The burden is on the claimant to establish that the amount awarded to him by the Land Acquisition Collector is inadequate and that he is entitled to more. Only if the initial burden is discharged the burden shifts on the State to justify the award.
• Section 24 of the Act precludes subsequent developments from being taken into considerable to determine compensation. • Need to take into consideration the value of the land adjacent to the acquired land or near-about area which possess same potentiality to work out the price fetched for determination of market value of the acquired land arises only when there is no evidence of value of the acquired land. Where evidence regarding value of the acquired land itself is on record, it is unnecessary to LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 18 of 29 travel beyond that evidence in considering market value particularly for the adjacent land.
• The lands which are freehold and lands which are burdened with encumbrances make a difference while attracting a willing purchaser. Freehold land commands a higher compensation as compared to lands which are burdened with encumbrances. The effect of tenants in occupation would be an encumbrance and no willing purchaser would offer the same price as would be offered for freehold land.
• The guideline value or circle rates fixed by the authorities under the Stamp Act for determination of market value of the property are not final but are only prima facie rates prevalent in the area. The guideline value or circle rate cannot be taken to be of such worth on the aspect of market value of the land. However such guideline factors which are contained in non-statutory basic value registers are different when compared to the guideline market value and circle rates as determined by expert committees constituted under State Stamp law. Determination of guideline value or circle rates by expert committees constituted under a State Stamp Act are effected after following detailed procedure laid down in the relevant rules and publication in the State Gazette after inviting objections or suggestions from the members of public. Such guidelines value or minimum rates for registration of properties determined under statutory procedure can form a relevant piece of evidence for determining market value.
• If the sale deeds relied upon by the State reveals a lesser market value than the compensation awarded by the Collector, the same cannot be ignored but Section 25 of the Act provides that the Court should not award an amount which is lesser than what was awarded by the Collector.
• In the case of Om Prakash versus State of Haryana & Others reported in 2011 IV AD (SC) 384 it was held by the Hon'ble Supreme Court that the question of potentiality or potential value of acquired land can be recognized only some time in future and it was open to the land owners to contend that potential can be examined firstly at the time of reference under Section 18 of the Act, first appeal before the Hon'ble High Court or even in the Hon'ble Supreme Court as well. It was held that the collector is an agent of State Government and they are extra ordinarily chary in awarding compensation and land owners have to fight for decades before they are able to get their dues. It was held that although the Act provided for payment of solatium, interest and additional about it was common knowledge that even these payments do not keep pace with the astronomical rise in prices in many parts of India and most certainly in North India and these payments cannot fully compensate for acquisition of land and payment of compensation in driblets. It was held that 12% per annum increase which courts have often found to be adequate in compensation matters hardly does justice to those land owners whose lands have been acquired as judicial notice can be taken of the fact that the increase is not 10 or 12 or 15 per cent per annum but is often up to 100% in a year for LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 19 of 29 the land which has the potential of being urbanized or commercialized. The Hon'ble Supreme Court further held that there is wide spread tendency to undervalue the sale price and provision of Collector's rates has only marginally corrected the anomaly as these rates are also abnormally low and do not reflect the true value.
• In the case of Shub Ram versus State of Haryana & Another reported in 2010 (I) AD (SC) 619 the Hon'ble Supreme Court found that the sale deeds relied upon by the LAC reveals consideration which was far less than the compensation offered by the LAC. In view of large variance in the market value disclosed by the sale deeds relied upon by the LAC and those by the claimants and the fact that value of the land disclosed in the sale deed relied upon by the LAC was even less than it was offered by itself. The inference which was drawn by the Hon'ble Supreme Court was that the sale deeds relied upon by the LAC were undervalued or were distress sales and are to be excluded from consideration as being unreliable."
18. The principles of law as enunciated are now to be applied to the facts and circumstances of this case in order to ascertain market value of the land of the petitioner which have compulsorily been acquired by the State. Before proceeding further, it will be first appropriate to ascertain the nature of the land which was acquired by the LAC. For this purpose one can straight away refer to the contents of the award of this case i.e. Ex.R-1 of the LAC relevant portion of which is reproduced hereunder:-
"The village Khureji Khas has already been urbanized and there is no agriculture land right now. As per the notification, the total area of the land measuring 2 Bighwa 6 Bishwa (1937.17 sq. mtrs) was notified for acquisition. However, as per requirement of the MCD (the requisition agency) physical survey was carried out by the Land Acquisition staff by conducting necessary measurement of the site, its verification from the site plans of MCD in conjunction with the revenue records, the total area as required by the MCD was found as per notification.
To arrive at a fair market value, the locality of the site, the situation of the area, the quality, potentiality and LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 20 of 29 use of land were kept in mind. The properties under acquisition are situated in Village Khureji Khas and surrounded by residential areas. Therefore, the same are being assessed on residential rates.
Keeping the above facts in mind, two methods of valuation of land under execution are examined. As a second method, the schedule of rates circulated by L&DO Ministry of Urban Affairs and Employment vide letter dated 15.04.1999 for the period from 01.04.1998 to 31.03.2000 was referred. It was noted that the indicative price of the land in the nearby area of Geeta colony was notified @ of Rs.2805/- per sq. metr. (Rs.2,345/- per sq. yard) for residential use. The residential colony of Geeta Colony is adjacent to the village Khureji Khas.
Therefore, the rates notified for Geeta Colony are taken as the basis for arriving at the market value of the above referred land in Khureji Khas. However, the rates notified by the L&DO are applicable up to 31.03.2000 only and the same are not yet revised. Whereas the notification u/s 4 was issued on 10.06.2002 i.e. in the financial year 2002-03. By looking into rates announced in the past by the L&DO for different periods, it was found that the rates were applicable up to 31.03.1998 were enhanced by 10% to arrive at the new rates which made applicable from 01.04.1998 to 31.03.2000. On the same basis and in view of the non-availability of the new rate from 01.04.2000. I consider 10% enhancement of the notified rate of Rs.2805/- per sq. meter for the period 01.04.2000 to 31.03.2002 which works out to be Rs.3086/- per sq. mtr. (Rs.2580/- per sq. yds). On the same anology the rates for the period 01.04.2002 to 31.03.2004 is also worked out by enhancement of 10% over and above the rate of Rs.3086/-.
Therefore, the market value of the land has been arrived at Rs.3395/- per sq. meter for the period 01.04.2002 to 31.03.2004 for the land under acquisition."
19. Upon holistic reading of this award, it can safely be gathered that the land in question is urbanized and not agricultural. Further, acquired land is surrounded by residential LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 21 of 29 areas and is adjacent to Geeta Colony. Existence of a developed park since 1970 is not in dispute. Therefore, the contentions contrary to this raised by the ld. Counsels for the respondents are rejected outrightly. Now, the factual matrix emerging on the basis of record is as under:-
20. The land in question is admeasuring 2 bigha 6 biswa on which MCD was maintaining a park since 1970. As per the kabza karwahi Ex.PW1/40, the land under acquisition is known as Chander Nagar Park having boundary wall with fencing on all sides. In center of the park, there was a water body of 30 ft X 50 ft having several fountains. Electric poles are installed on all the four corners as well as in the center of park. Further, as per site plan Ex.PW1/41 prepared at the instance of respondents only, the land in question was surrounded by roads from three sides and the construction on the fourth side. Upon conjoint reading of kabza karwahi and site plan and the findings of the Ld. LAC recorded in the Award No. 15/DC(East)2004-05, it can safely be gathered that the photographs Ex.PW1/9 (colly.) & Ex.PW1/10 (colly.) placed on record by the petitioners reflect the true picture and the status of the land in question at the time of acquisition. As per these photographs, the land in question is surrounded by fully developed residential units and having all the basic amenities. Admittedly, MCD park is in existence since 1970. Meaning thereby, basic amenities ought to have been made available for the beneficial enjoyment of the park. Thus, the contentions of respondents qua land being undeveloped and lacking basic amenities is rejected. At the same time, the contention to the effect that land in question could not fetch LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 22 of 29 commercial value is upheld since it was primarily a residential area. Even the presence of MCD park indicates it to be residential area. However, reliance by the petitioner on the judgment of another Court in case titled as "Chandra Pratap Singh" (supra), is misplaced it being passed by concurrent jurisdiction Court and of different area. Further, as far as contention of lease deeds/ sale deeds not proved by vendor or vendee is concerned, the law is no more res integra that examination of vendor or vendee is not necessary as held in "Cement Corporation of India Ltd. Vs. Purya & Ors." (Civil Appeal No. 6986/2003). Even otherwise, PW2, PW3 & PW4 are the officials of DDA i.e. the vendor in respect of perpetual lease deed Ex.PW1/1 to Ex.PW1/6 & Ex.PW1/8 duly proved its execution. Hence, this contention is also rejected. As far as claim of damages from the date of actual possession i.e. year 1970 is concerned since it has been raised only at the stage of arguments, the same cannot be considered being beyond pleadings. Another contention that every land has different potentialities and thus, sale instances of adjoining land cannot be considered also do not hold water since, the LAC himself relied upon the rates of Geeta Colony stated it to be adjacent colony. Further since neither side has tendered the sale deed of the land in question, the best way to assess the market value is by comparing the sale deeds of adjacent land. Keeping in mind the above said factual position, potentiality and the status of the land in question, at the time of notification of the acquisition, the market value of the land in question has to be assessed.
21. The LAC has awarded the compensation on the LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 23 of 29 basis of the Schedule of Rates circulated by L&DO Ministry of Urban Affairs and Employment for the period 01.04.1998 to 31.03.2000, however, as per the catena of judgments, the same cannot be the basis of ascertainment of true market value of the land in question and the best method to assess the market value of the land in question is what a willing purchaser would pay to a willing seller for a similarly placed land. Further, the Schedule of Rates placed on record by R2W1 (though not proved) shows that the Schedule of Residential Land Rates vide Ex.R2W1/1 are the rates accepted by the L&DO to align the rates of residential land being administered by L&DO to that of conversion land rates of DDA for residential properties only and thus does not depict the market rates. Further, on perusal of these land rates, it is observed that the common rates were prescribed for the entire East Delhi irrespective of the potentiality, development and topography of the different areas of East Delhi. Thus, since the entire East Delhi has been categorized in Zone-V and the common rate has been prescribed, the same cannot be the basis for ascertaining the true market value of the land in question.
However, since it is a case of a scanty evidence led by the petitioner versus no evidence led by the respondents, at this juncture, I am remindful of the observation made in the case titled as "Narendra & Ors. Vs. State of Uttar Pradesh & Ors." 2017 XII AD (SC) 288 wherein it is held that:-
"Prof. (Dr.) N.R. Madhava Menon who explains the meaning and contour of social justice adjudication as the application of equality jurisprudence evolved by the Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the socio-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 24 of 29 disadvantage of the weaker party. In such a situation, the Court has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. The Courts, in such situations, generally invoke the principle of fairness and equality which are essential for dispensing justice".
22. Applying the above principles and considering the fact that the respondents have not led any evidence to rebut the evidences led by the petitioner, the best way to ascertain the market value in the case before hand is to rely upon comparable sale deeds/lease deeds filed by the petitioner only. Though the petitioner has relied upon the sale deeds/ lease deeds of various areas such as Vivek Vihar, Preet Vihar, Dayanand Vihar etc., however, apart from Geeta Colony, the rest are discarded as neither proximity nor similarity with the land in question has been shown, rather pertains to the affluent areas of East Delhi. However, since the LAC himself has relied upon the rates of Geeta Colony and stated it to be adjacent to the land in question, I find no reason to differentiate between the market value of Geeta Colony and the land in question if similarly placed. Therefore, in order to assess the market value of land in question on the date of notification, reliance is placed on the sale deeds/ lease deeds of Geeta Colony i.e. Ex.PW1/2 to Ex.PW1/5. Ex.PW1/2, Ex.PW1/3 and Ex.PW1/5 are the lease deeds pertaining to the residential plots of Geeta Colony for the years 2004 & 2005. As per these lease deeds, market value of the lease hold plots are ranging between Rs.16,000/- per sq.m. to Rs.18,000/- per sq.m. Ex.PW1/4 is the sale deed of April, 2006 for residential built-up property of Geeta Colony @ Rs.18,684/- per sq.m. At the same time, though circle rates cannot be the sole LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 25 of 29 criteria to assess the market value but a good prima facie indicator. In this case, the circle rate for land in question falling in the area of Chander Nagar under Category 'F' was Rs.16,100/- per sq.m. in the year 2007.
23. Admittedly, rates of lease hold property are lesser than freehold property. At the same time, built-up property attracts more market value as compared to vacant land. In "Anjani Molu Dessai Vs. State of Goa & Anr." (2010) 13 SCC 710, the Hon'ble Apex Court has observed as under:-
"13. The legal position is that even where there are several exemplars with reference to similar lands, usually the highest of all the exemplars, which is a bona fide transactions, will be considered. Where however there are several sales of similar lands whose prices range in a narrow bandwidth, the average thereof can be taken, as representing the market price. But where the values disclosed in respect of two sales are markedly different, it can only lead to an inference that they are with reference to dissimilar lands or that the lower value sale is on account of under-valuation or other price depressing reasons."
Thus, taking average of above sale transactions vide Ex.PW1/2 to Ex.PW1/5, the market value of residential plots in the vicinity of Geeta Colony between year 2004 to 2006 comes to Rs.17,746/- per sq.m. Considering it to be the average market value in 2006, after deducting 40% (10% decrease in value for each preceding year), the average market value of residential plots in Geeta Colony comes to Rs.10,647.6 per sq. meter in the year 2002.
24. However, since there cannot be a straight jacket LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 26 of 29 formula to assess the market value of one piece of land on the basis of market value of other pieces of adjacent land, other factors such as size, status, development of the area concerned comes into picture.
Therefore, in the totality of circumstances, considering the prevailing market rate of residential plots in Geeta Colony, their size, development status, potentiality, proximity in time/place vis-a-vis land in question, I am of the considered opinion, that after deducting 10% on account of size difference, 10% on account of development status and 10% on account of proximity in place totalling to 30% from the average market value of residential areas of Geeta Colony would be the comparable market value of the acquired land in 2002. Hence, the market value of the land in question i.e. 2 bigha 6 bishwa (1937.17 sq.m.) falling under Khasra No. 10/16 situated in the revenue estate of Village Khureji Khas is assessed at Rs.7,453.32 (Rs.10,647.6-30% = Rs.7,453.32/- per sq.m.).
25. Accordingly, the petitioner herein, namely, Sh. Farzand Ali is held entitled to the compensation @ Rs.7,453.32 per sq.m. in respect of his 1/4th undivided share out of 2 bigha 6 biswa land acquired vide award in question. Accordingly, issue nos. 1 and 2 are decided in favour of the petitioner and against the respondents.
Issue No.3: (Relief).
26. In view of the findings on issue nos. 1 and 2, the petition/ reference filed U/s 18 of L.A. Act, is allowed. The LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 27 of 29 petitioner had claimed compensation of Rs.30,000/- per sq.metre, which is now fixed and allowed @ Rs.7,453.32 /- per sq.metre.
27. According to the awards, solatium was allowed @ 30%. Accordingly, the solatium is also allowed @ 30% on the enhanced market value, as determined above, as per provisions of L.A. Act, 1894.
The petitioner has also claimed interest, as per law. According to the award, 12% interest was allowed on the market value, fixed by the LAC U/s 23(1)A of LA Act, 1894 from the date of notification U/s 4 of the Act (16.06.2002) till the date of possession or date of award whichever is earlier. Accordingly, the same is also allowed on the present market value, fixed as above.
28. Further, as per Section 34 of Land Acquisition Act, interest U/s 34 of LA Act, 1894 is also granted on the enhanced market value @ 9% per annum from the date of possession till expiry of one year and thereafter, @ 15% per annum till payment.
29. The above reliefs are subject to the deductions of compensation / solatium / additional benefits / interest U/s 34 of LA Act, 1894, which have already been received by the petitioner, as were fixed by the LAC vide Award No.15/DC (E)/2004-05 dated 06.09.2004.
A copy of this judgment be sent to Land Acquisition Collector concerned for necessary information, action and immediate compliance for remittance of amount.
LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 28 of 29 Answered accordingly. No order as to cost.
File be consigned to the record room.
Announced in the open Court on 20.03.2023 (Ajay Garg) Additional District Judge-01 (East)/KKD Courts/Delhi LAC No.18/18 Farzand Ali Vs. Union of India & Anr. Pg No. 29 of 29