Delhi District Court
Ashwani Arora vs Union Of India on 15 December, 2020
IN THE COURT OF Ms. MANJUSHA WADHWA, ADJ-02, SHAHDARA,
KARKARDOOMA COURTS, DELHI
LAC No. 07/16
ASHWANI ARORA
C-43, Surya Nagar
Ghaziabad-201011.
................Petitioner
Versus
1. UNION OF INDIA,
Through Land Acquisition Collector
District-Shahdara, DC Office Complex
Nand Nagri, Delhi-110093.
2. Delhi Metro Rail Corporation Ltd.
Metro Bhawan, Fire Brigade Lane,
Connaught Place, New Delhi-110001.
........Respondents
_________________________________________________________
LAC No. 8/16
Smt. Kanta Kumari Arora
C-43, Surya Nagar,
Ghaziabad 201011.
................Petitioner
Versus
1. UNION OF INDIA,
Through Land Acquisition Collector
District-Shahdara, DC Office Complex
Nand Nagri, Delhi-110093.
2. Delhi Metro Rail Corporation Ltd.
Metro Bhawan, Fire Brigade Lane,
LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 1/67
LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA
LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA
LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA
Connaught Place, New Delhi-110001.
........Respondents
_________________________________________________________
LAC No. 6/2016
Sh. Vijay Arora
C-43, Surya Nagar,
Ghaziabad 201011.
................Petitioner
Versus
1. UNION OF INDIA,
Through Land Acquisition Collector
District-Shahdara, DC Office Complex
Nand Nagri, Delhi-110093.
2. Delhi Metro Rail Corporation Ltd.
Metro Bhawan, Fire Brigade Lane,
Connaught Place, New Delhi-110001.
........Respondents
_________________________________________________________
LAC No. 09/2016
Sh. Amit Arora.
C-43, Surya Nagar,
Ghaziabad 201011.
................Petitioner
Versus
1. UNION OF INDIA,
Through Land Acquisition Collector
District-Shahdara, DC Office Complex
Nand Nagri, Delhi-110093.
2. Delhi Metro Rail Corporation Ltd.
Metro Bhawan, Fire Brigade Lane,
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LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA
LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA
LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA
Connaught Place, New Delhi-110001.
........Respondents
_________________________________________________________
Date of Institution : 22.08.2015
Date of reserving judgment : 10.12.2020
Date of judgment : 15.12.2020
Arguments addressed by:-
Sh. Arvind Sharma, Advocate for the petitioners.
Sh. Mridul Jain, Advocate for Union of India.
Sh. Vijay Kumar, Section Officer (Legal) for DMRC (hereinafter
referred to as 'SO(L)')
JUDGMENT
1. Vide this judgment, this Court shall decide all the aforesaid four reference petitions filed under section 18 of Land Acquisition Act, 1894 (hereinafter referred to as 'L.A. Act, 1894') arising out of common award dated 31.12.2007 with respect to village Jhilmil, Tahirpur, Delhi.
2. Succinctly put, facts leading to filing of present petition are that the notification dated 12.04.2006 under Section 4 of the L.A. Act, 1894 was issued by the Land Acquisition Collector (hereinafter referred to as "LAC") for acquisition of land/properties coming in the way of construction of Shahdara Dilshad Garden Corridor of Delhi MRTS Project Phase II at G.T. Road Shahdara situated in Village Jhilmil Tahirpur, which was followed by the Notification dated 22.05.2006 under Section 6 & 17(1) of L.A. Act, 1894. On 17.08.2006, properties in question (located in Gali No.1B, Friends colony, GT Road, Shahdara, Delhi) are stated to have been acquired for the aforesaid purpose by the LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 3/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA LAC. Keeping in view the use of the land under acquisition as commercial/industrial, the LAC assessed the market value of the land @ Rs. 6450/- per sq. mtr. with respect to 16 Bigha 16 Biswa i.e. 14068 Sqr. mtr. of land which came to Rs.9,07,38,600/-. Further, solatium at the rate of 30% of market value alongwith the additional amount @ 12% of market value w.e.f. 12.04.2006 to 17.08.2006 was allowed apart from cost of structure appended to the said land and statutory interest under Section 34 of Act. Thus, an Award for total amount of Rs.22,14,55,073/- was passed by the LAC.
3. Being aggrieved from the lesser rate fixed by LAC for the acquired land, the petitioners filed application/petition under Section 18 of L.A. Act, 1894 before the LAC on 11.03.2008. The LAC made reference of the aforesaid four applications before Ld. Predecessor of this Court on 21.08.2015. As per said reference, the LAC had initially dismissed the said applications as time barred on 09.03.2011 and had made reference only on 21.08.2015 in compliance of direction passed by Hon'ble High Court of Delhi in the writ petitions filed by the petitioners.
4. In the present petitions, the petitioners have raised various grounds interalia stating that the market value assessed by Ld. LAC is not as per specified norms; valuation made by M/S A Khanna and Associates does not reflect the true value of structures appurtenant to the lands in question; the Valuer has applied cost index of 123 instead of cost index of 261 issued by CPWD; LAC has erred in not awarding LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 4/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA compensation under all subclauses of section 23 of L.A. Act, 1894 and LAC has also erred in calculating days while awarding statutory interest in the award.
5. Separate written statement was filed on behalf of respondent nos. 1 and 2. Both the respondents took an objection that petitions are time barred. On merits, the respondents stated that compensation as assessed by the LAC reflects the true market value prevailing at the time of notification U/s 4 of L.A. Act, 1894, which had been assessed after considering all the aspects. It is also their case that the structures appurtenant to the land under acquisition were got evaluated by PWD of Govt. of NCT of Delhi, which were accepted by the LAC after due consideration. The respondents thus prayed for dismissal of present petitions.
6. Vide order dated 12.01.2018, following issues were framed by the Ld. Predecessor of this court as:-
1. Whether the claimant proves that the compensation arrived at by Land Acquisition Officer is unfair in the circumstances of the case and calls for enhancement? OPP
2. Whether the claim is within limitation? OPP
3. What relief?
7. According to the petitioners, they had received notice under Section 9A of the L.A. Act with respect to 1433 of sq meter of land. Pe-
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rusal of said notice shows that said area of 1433 sq. meter belongs to aforesaid four petitioners in the following ratio as:-
(1) Jagdish Kumar- 204 sq. meter (2) Amit Arora -83.615 sq. meter (3) Vijay Arora-83.615 sq. meter (4) Ashwani Kumar-1080.530 sq. meter.
8. At the outset, it is mentioned that during the course of arguments, it has been jointly submitted that in all the aforesaid petitions, combined evidence has been recorded in 'Ashwani Kumar Vs UOI' except the petitioner in each case, who has been examined as CW- 13 therein.
9. In order to prove the case, the Petitioners have examined Sh. Moti Lal Prasad, Executive Engineer, CPWD, Nirman Bhavan, Delhi as CW-1, who has proved the statement of cost index of CPWD for the period from 01.01.1992 to 01.10.2007 as Ex.CW1/1, plinth area rates as on 01.01.1992 as Ex. CW1/2 and plinth area rates as on 01.10.2007 as Ex. CW1/3. During cross-examination by respondent no.1, he submitted that plinth area rates are used for making preliminary estimate of the construction proposed to be done as per specification. He further testified that if construction is not as per specification, rate may vary and cost index can work if only the cost of base year is available.
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10. Sh. Anuj Khanna, Sr. Assistant from the office of Industries Department was examined as CW-2. He has proved the Circular dated 11.11.2009 regarding rates of industrial land issued by Commissioner of Industries, DSIIDC Ltd., Delhi as Ex. CW2/1 and attested copy of Circular dated 10.07.2008 regarding conversion charges issued by Commissioner of Industries, DSIIDC Ltd., Delhi as Ex. CW2/2. During cross-examination, he testified that he has no knowledge of formulating the schedule of rates brought by him.
11. Sh. Rohit, LDC from the office of ADM, Land & Acquisition Branch, North West, Khanjhawala has proved certified copy of award dated 20.06.2008 of village Khanjhawala as Ex. CW3/1. Sh. M.N.Sharma, Patwari from the office of LAC, South West, DC Office, Kapashera, New Delhi has proved certified copy of award dated 06.01.2012 of village Bijwasan as Ex. CW4/1 and certified copy of award dated 01.02.2012 of village Bijwasan as Ex. CW4/2. Sh. G.S. Meena, Kanoongoo, office of LAC South, New Delhi was examined as CW-5. He has proved certified copy of award dated 28.09.2002 of village Mehrauli as Ex. CW5/1. Sh. Prabhu Nath Singh, Kanoongo, office of LAC North, New Delhi was examined as CW-6. He has proved certified copy of award dated 01.11.2002 of village Shahbad Daulatpur as Ex. CW6/1; certified copy of award dated 26.10.2004 of village Shahbad Daulatpur as Ex. CW6/2 & certified copy of award dated 15.12.2005 of village Shahbad Daulatpur as Ex. CW6/3. During cross-examination, all the aforesaid three witnesses denied knowledge of filing of any litigation qua said awards, and if filed, result of the same.
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12. Sh. Gurdass Chand, Naib Tehsildar, DMRC, Metro Bhavan, New Delhi was examined as CW-7. He has proved certified copy of valuation report dated 20.04.2006 in the name of Amit Kumar in respect of property bearing no. 340/48, Friends colony Industrial area, GT Road, New Delhi prepared by M/s A. Khanna & Associates as Ex. CW7/1; certified copy of valuation report dated 20.04.2006 in respect of property of Jagdish Kumar bearing no. 340/48, Friends Industrial Area, GT Road, Delhi as EX. CW7/2; certified copy of valuation report dated 20.04.2006 in respect of property of Ashwani Kumar and Vijay Kumar bearing no. 340/48, Friends Colony Industrial Area, GT Road, Delhi as EX. CW7/3; certified copy of letter dated 05.01.2016 written to Secretary (Land & Building Dept) , Vikas Bhawan, Delhi requesting for land on permanent basis as Ex. CW7/4; certified copy of letter dated 07.11.2005 written to Secretary (Land & Building Dept), Vikas Bhawan, Delhi requesting for land on permanent basis as Ex. CW7/5. During cross-examination, CW- 7 deposed that he has been posted in the concerned branch since 17.10.2006. He testified that he has not brought any document showing that how, when, by whom the document brought by him reached to DMRC. He denied any personal knowledge of the matter.
13. Sh. R.P.Verma, Patwari in the office of LAC, Shahdara, DC Office complex, Nand Nagri, Delhi-110093 has been examined as CW-8. He has proved certified copy of letter dated 06.07.2009 issued in favour of Ld. ADJ, North East depositing an amount of Rs. 11,05,68,832/- as Ex. CW8/1; certified copy of letter dated 29.05.2008 issued in favour of LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 8/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA Dy. Secretary (L & A), Land & Building Depts, Vikas Bhawan requesting for release of compensation amount as Ex. CW8/2; certified copy of award of village Chandrawali dated 20.07.1999 as Ex. CW8/3; certified copy of award dated 22.07.2008 of village Jhilmil Tahirpur as Ex. CW8/4. During cross-examination, he deposed that he has been posted in Shahdara District since May, 2014. He further deposed that area of Chandrawali was earlier falling in District East and area of Jhilmil Tahirpur was earlier falling in District North-East. He further testified that documents brought by him were prepared in respective District and after creation of District Shahdara, documents were transferred to Shahdara. He testified that he was never posted in District East or North East.
14. Sh. Tajinder Pal Singh, SCD, office of Recovery Officer, DRT- II, Jeevan Tara Building, Parliament Street, New Delhi has been examined as CW-9. He testified that he has brought the summoned record i.e. record file of 'PSB vs. R.G. Metal Industries' bearing RC No.25/06. He has proved the document i.e. report of Court Auctioneer Sh. R.K. Venaik dated 21.12.2006 as Ex. CW9/1 and Annexure C attached with aforesaid report as Ex. CW9/2. He has also proved the notice of public auction as Ex. CW9/3. During cross-examination, he admitted that documents Ex. CW9/1 and Ex. CW9/2 are not certified copies nor there is any mentioning showing the said documents were issued from DRT.
15. Sh. Ram Naresh, Jr. Assistant, office of Divisional Commissioner, Revenue Department (HQ), Govt of NCT of Delhi LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 9/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA stepped into the witness box as CW-10 but his examination was deferred for want of summoned record.
16. CW-11 Sh. Rajender Sharma testified that he is running a factory in tenanted premises i.e. 1/342-1E, Gali no.1, Friends Colony, Industrial area, Shahdara, Delhi-110095. He further testified that tenanted premises and property bearing no. 340/48, Friends Colony, Industrial Area, GT Road, Shahdara, are in the same industrial area at a distance of 300 meters from each other. He testified that as per his memory, market rate in the year 2006 was Rs. 75,000/- per sq. meter. During cross-examination, he could not tell the income from his factory and income from the factory running on property bearing no. 340-48. He denied the suggestion that he is deposing falsely about the market rate of property as Rs. 75,000/- per sq. meter in the year 2006.
17. Sh. Rakesh Kumar was examined as CW-12. He testified that he is running a factory at 520, GT road Shahdara and is at a distance of about 200 meters from property bearing no. 340/48, Friends Colony, Industrial Area, GT Road, Shahdara. He deposed that as per his memory, market rate was about Rs.65,000-70,000/ per sq. yard in the year 2006. During cross-examination, he deposed that he is running a factory since 1993 but his further cross-examination was deferred for want of sale deed.
18. The petitioners namely Ms. Kanta Kumari W/o late Sh. Jagdish Kumar Arora; Sh. Ashwani Kumar Arora S/o late Sh. Jagdish Kumar LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 10/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA Arora; Sh. Vijay Kumar Arora S/o Late Sh. Jagdish Kumar Arora and Amit Kumar Arora S/o Late Sh. Jagdish Kumar Arora were examined as CW-13 in their respective petition. Relevant cross-examination of CW- 13 shall be considered while deciding the issues.
19. Sh. Rakesh, Jr. Assistant from the office of Divisional Commissioner, Revenue Dept. Shamnath Marg, Delhi-110054 was examined as CW-14. He has placed on record Notification of Circle rate during the period of 2001 to 2010 as Ex. CW14/1 and Ex. CW14/2. He has denied any personal knowledge of the record.
20. Sh. Sunil Kumar, Assistant L & DO was examined as CW-15. He has proved certified copy of summoned record dated 02.05.2017 as Ex. CW15/1. He has also denied any personal knowledge of the record.
21. Sh. Suresh Malik, Proprietor Suresh Malik & Associates, Janak Puri, New Delhi-110058 was examined as CW-16. He has proved the valuation report dated 17.01.1998 in respect of property no. 1/641, Village Chandrawali, Shahdara, Delhi measuring 233 sq. yards as Ex. CW16/1. During cross-examination, he testified that he has prepared the valuation report on the basis of location and size of the plot. He was confronted with portion X to X1 of the report wherein it is recorded that said report has been prepared on the basis of inquiries made from Local Property Dealers. He testified that they generate guiding factors from local property dealers and thereafter process that factor as per their calculation. He testified that he had prepared the report on the basis of LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 11/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA telephonic instructions from Oriental Bank of Commerce. He could not recall the name of Branch of OBC where he had handed over the original report.
22. Sh. Anil Kumar Sharma, ASO, Lab Residential, DDA, Vikas Sadan, INA, Delhi was examined as CW-17. He has proved certified copy of summoned record in respect of properties auctioned by DDA during the period of 2006 to 2012 as Ex. CW17/1.
23. Sh. Manish Kumar, Senior Secretariat Assistant from DDA, Vikas Sadan, INA, Delhi was examined as CW-18. He has proved copy of Circulars dated 23.06.2004, 18.04.2006, 20.04.2007, 04.06.2009, 09.07.2010, 21.08.2012 and some pages relating to average auction rates of properties (total 20 pages) as Ex. CW18/1. The documents were objected on behalf of the respondents on the ground that certificate under Section of 65-B of Indian Evidence Act is not annexed with the computer-generated documents. During cross-examination, he denied personal knowledge of the record brought by him. He admitted that circular dated 21.08.2012 is out of ambit of the documents mentioned in the list annexed with the summons. He stated that he has inadvertently brought the same.
24. Sh. Nishikant Sharma, DCD, Office of Sub Registrar (IV-A), DC Office, Nand Nagri, Delhi was examined as CW-19. He has proved registered sale deed dated 26.06.2007 executed in favour of Sh. Abhishek Jain as Ex. CW19/1.
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25. On the other hand, respondent no.1 has examined Sh. Mridul Jain, counsel for respondent no.1 as R1W1. He has proved certified copy of award No. 2/2007-2008, North East pertaining to Village Jhilmil Tahirpur, Delhi issued by office of LAC Shahdara as Ex.R-1. The respondent no.1 has not examined any other witness and closed RE.
26. The respondent no.2 has examined Sh. Vijay Kumar, Sr. Legal Assistant from DMRC as R2W1. He has tendered certified copy of sale deeds as Ex. R-2/2 (running into 53 pages) along with list of documents as Ex. R-2/3 and covering letter dated 28.02.2019 issued by the office of Sub Registrar IV-A, Shahdara, Seema Puri, Delhi as Ex. R-2/1. The details of sale deeds as produced vide Ex. R-2/2 are as follows:-
S. Date of sale Sale Property details Seller Buyer N deed. considera Name Name O. tion and rate per Sq mtr 1 27.02.2006 Part of property No. M/S Sanjay Rs. 467 & 483, Oberoi Kumar 10,00,000/ admeasuring 441 sq. Ltd. Gupta
- for 441 yds out of total area through HUF sq. measuring 4700 sq yds attorney yds(368.7 forming part of Khewat Aditya 5 sq. mtr.). no. 462/498, Khasra Mohan Rate is no. 1097/283 to 289, Chopra.
Rs. 226 & 299 situated in
2712.01pe abadi of GT Road
r sq. mtr Village Tahirpur Estate
Shahdara, Delhi.
2 27.02.2006. Rs. Property No. 467 & M/S Ms.
9,00,000/- 483, area measuring Oberoi Anita
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for 300 sq. 300 sq. yds out of total Ltd. Jain
yds(250.8 area measuring 4700 through
3 sq.mtr) sq yds forming part of attorney
Rate is Khewat no. 462/498, Aditya
Rs. Khasra no. 1097/283 to Mohan
3588.08 289, 226 & 299 situated Chopra.
per sq. in abadi of GT Road
mtr Village Tahirpur Estate
Shahdara, Delhi.
3 06.12.2006 Rs. Property no. 467 & 483, Mrs. Anita
4,90,000/- area measuring 150 sq. Renu Jain
for 150 Sq yds out of total area Vedvyas
Yds(125.4 measuring 300 sq yds and Smt
1 sq. mtr.). forming part of Khewat Sneh
Rate is no. 462/498, Khasra Vedvyas
Rs. no. 1097/283 to 289, (purchas
3907.18 226 & 299 situated in ed from
per sq. abadi of GT Road M/S
mtr. Village Tahirpur Estate Oberoi
Shahdara, Delhi. Ltd.)
4 06.07.2007 Rs. Property No. 467 & Mrs. Anita
4,90,000/- 483, area measuring Renu Jain
for 150 Sq 150 sq. yds out of total Vedvyas
Yds. 300 Sq Yds forming and Smt
(125.41 part of Khasra no. Sneh
sq. mtr.). 109/28 to 28 & 22 & 29 Vedvyas
Rate is situated in abadi of GT (purchas
Rs. Road, Village Tahirpur ed from
3907.18 Estate Shahdara, Delhi. M/S
per sq. Oberoi
mtr. Ltd.)
27. R2W1 Sh. Vijay Kumar, Sr. Legal Assistant (DMRC) has also placed reliance upon certified copies of seven sale deeds Ex R-2/4 obtained from the office of Sub Registrar IV, Seelampur, Delhi vide letter dated 10.12.2019 Ex. R-2/3 issued by the office of Sub Registrar IV, LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 14/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA Seelampur, Delhi. He has denied personal knowledge of the sale deeds. The details of sale deeds Ex. R-2/4 are reproduced hereinunder as:-
Sl. Sale Considerat Property details. Seller Buyer No Deed ion . Registra amount tion no. and rate and per sq mtr.
date 1 543, Rs. 65 sq. yds. Ginna Ajay 13.02.2 1,50,000 property No.1/536- Devi(pur Kumar 004 for 65 Sq D/1, part of property chased Jain Industria Yds(54.34 no.1/536-D, Friends from l sq. mtr). Colony Industrial M/S Rate is Area, out of Khasra Disha 2760.54. no. 334/35-32-29, Entertai per sq. mtr 313-311-310, Vill. nment Jhilmil, Tahirpur, GT Pvt Ltd.) Road, Shahdara, Delhi-95 2 2565, Rs. 60 sq. yds bearing M/S Smt sale 1,20,000/- prop. No. 1/536/B- Disha Sunita deed for 60 Sq 10 out of Prop. Entertai Batra dated Yds(50.16. 1/536/B, area nment 22.03.2 sq. mtr). measuring 1240 sq. (P) Ltd.
004 Rate per yds and area
register Sq mtr is measuring 775 sq
ed on Rs. yds situated in the
15.07.2 2392.34/-. abadi of Friends
004 Colony Industrial
Industria area out of Khasra
l no. 334/35-32-29,
313-311-310 in the
area of village
Jhilmil, Tahirpur,
G.T. Road, Illaqa
Shahdara, Delhi-95.
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3 2714, Rs. 100 sq. yds, portion M/S Smt Alka
sale 3,00,000/- of prop. bearing Ganpati Gupta
deed for 100 Sq 520-A, bearing plot Rollings
dated Yds(83.61 - 3, Khasra no. Pvt. Ltd.
22.04.2 sq.mtr). 378/299/303 &
004 Rate is Rs. 379/299/303
register 3588.08 situated in Vill.
ed on per sq. mtr Jhilmil, Tahirpur, GT
22.07.2 Road, Shahdara.
004
4 2713, 4,80,000 170 sq. yds prop. M/S S. Avtar
sale for 170 Sq earing 520A, plot Ganpati Singh
deed Yds( 142.1 no. 14, part of Rollings
dated 4 sq. mtr). khasra no. Pvt. Ltd
17.05.2 Rate is Rs. 378/299/303
004 3376.95 &379/299/303
register per sq. situated in Vill.
ed on mtr. Jhilmil, Tahirpur, GT
22.07.2 Road, Shahdara.
004
5 3741, Rs. 80 sq. yds out of M/S Smt.
sale 1,60,000/- area measuring Disha Madhu
deed for 80 Sq 1240 sq yds, prop. Entertai Bansal
dated Yds( 66.89 1/536/B-4-A, out of nment
29.07.2 Sq mtr). Prop. No. 1/536 Pvt. Ltd.
004 & Rate is Rs. situated in abadi of
register 2391.98 Friends Colony
ed on per sq. mtr Industrial Area
17.09.2 Khasra no. 334/35-
004 32-20, 313-311-310
Industria situated in Vill.
l Jhilmil, Tahirpur, GT
Road, Shahdara.
6 3999 & Rs. 50 sq. yds, property M/S Sandhya
28.09.2 1,50,000/- bearing no. 520-A, Ganpati Jain
004 for 50 Sq part of Khasra no. Rolling
Yds(41.80. 378/299/303 & Pvt Ltd.
sq. mtr). 379/299/303
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Rate is Rs. situated in Vill.
3588.51 Jhilmil, Tahirpur, GT
per sq.mtr. Road, Shahdara,
Delhi.
7 4460 & Rs. 110 sq. yds M/S Sadhna
27.10.2 3,00,000/- property bearing no. Ganpati Jain
004 for 110 Sq 520-A, part of Rolling
Yds. Khasra no. Pvt Ltd.
(91.97 sq 378/299/303 &
mtr). Rate 379/299/303
is Rs. situated in Vill.
3261.93 Jhilmil, Tahirpur, GT
per sq mtr. Road, Shahdara,
Delhi.
Issue no. 1 : Whether the claim is within limitation? OPP
28. Ld. Counsel for the Petitioners submitted that the petitioners were served with notice dated 08.01.2008 under Section 12(2) of L.A. Act, 1894 on 19.01.2008 without copy of award. He contended that limitation to file reference application shall begin from the date of constructive knowledge of the contents of the Award. He submitted that the petitioners/claimants had applied for certified copy of award on 24.01.2008 and the same was received by them on 12.02.2008; thus, the time consumed in obtaining copy of the Award i.e. from 24.01.2008 to 12.02.2008 should be excluded and the period of limitation be extended by 19 days. He thus submitted that the Reference applications filed before the LAC on 11.03.2008, are well within the period of limitation. He has placed reliance on the judgment of the Hon'ble Apex Court passed in the case of Premji Nathu v State of Gujarat AIR 2012 LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 17/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA SC 1624 and Bhagwan Das and Others v State of U.P. AIR 2010 SC 1532. He further contended that the Award was corrected under Section 13-A of the Act vide corrigendum issued by the L.A.C on 07.04.2008, which is evident from letter of LAC dated 29.5.2008 Ex. CW8/2, and thus fresh notice under section 12(2) of L.A. Act, 1894 was required to be issued, which has not been done in the present cases. It is his further contention that LAC could issue notice under section 12(2) of L.A. Act, 1894 only after receipt of the compensation amount, whereas the LAC vide his letter dated 29.05.2008 Ex. CW8/2 had made a request for release of award amount and the same was received only vide letter dated 04.06.2008. In support of the aforesaid contention, he has placed reliance on the judgment of the Hon'ble Apex Court passed in the case of DDA versus Sukhbir Singh AIR 2016 SC 4275 and Hon'ble High Court of Delhi in Sh. Mahender Kumar Vs Land Acquisition Collector 2006 (90) DRJ 240. He thus submitted that the reference applications filed by the petitioners on 11.03.2008, are within the period of limitation.
29. On the other side, Ld. Counsel for the respondent no. 1 submitted that he had moved application under Order 7 Rule 11 CPC for rejection of present petitions on the ground that the applications for reference under Section 18(1) of L.A. Act, 1894 are barred by limitation, however, the said applications were dismissed by Ld. Predecessor of this Court vide order dated 12.08.2016. He further submitted that respondent no.1 had moved another application under Order 47 Rule 1 read with Section 151 CPC for review of order dated 12.08.2016 on the LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 18/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA ground that the petitioners had not placed proof of obtaining certified copy of award on record and hence order dated 12.08.2016 is required to be reviewed. He submitted that vide order 19.05.2017, the order dated 12.08.2016 was reviewed to the effect that issue of limitation would be decided after leading evidence by the parties and it is for the petitioners to satisfy the court that the reference petitions are within limitation. He submitted that the petitioners have not yet filed any proof as to when the certified copy of award dated 31.12.2007 was applied and the date of receipt of same to claim exclusion of period. He thus submitted that present petitions are time barred.
30. SO (L) of respondent no.2 submitted that the petitioners have not proved that they had applied for certified copy of award on 24.01.2008 and had received the same on 12.02.2008 to justify delay of 29 days in filing the reference petitions. He further contended that as per section 12(2) of L.A. Act, 1894, the LAC has to only provide information regarding essential contents of the award and there is no requirement of supplying copy of award along with the notice. He further submitted that fact of issue of corrigendum on 05.04.2008 would not extend the period of limitation as the petitioners have to either take the date of award as 31.12.2007 or 05.04.2008 as to seek the remedy accordingly.
He further contended that vide said corrigendum, the LAC has only corrected the typographical error of word 'residential' to 'commercial', which could not prejudice any interested person, and therefore, the limitation period will start from the date of receipt of notice under Section 12(2) of L.A. Act, 1894. He has placed reliance on the judgment of LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 19/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA Hon'ble Apex Court passed in Bhagwan Dass vs. State of UP AIR(2010)SC1532. He further contended that as the land was acquired under Section 17 of L.A. Act, 1894, thus, the issuance of notice under Section 12(2) of L.A. Act, 1894, is in accordance with law.
31. Heard and perused the record.
32. In order to decide the issue of limitation, one may peruse section 18 of of L.A. Act, 1894, which is reproduced hereinunder as :-
"18. Reference to Court. - (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award is taken:
Provided that every such application shall be made-
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire".
33. It is apparent from the reading of aforesaid section that the application stating the grounds of objection to the award is to be made within 6 weeks from the date of award if the applicant was present or LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 20/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA represented before the Collector or within 6 weeks of receipt of notice under section 12(2) of L.A. Act, 1894 or within six months of date of passing of award, whichever is earlier.
34. It is relevant to note herein that under Section 19 of L.A. Act, 1894, the Collector makes reference and state in writing the requirements as stipulated under sub-sections (a) to (d) therein. The conjoint reading of Section 18 & 19 of L.A. Act, 1894 infers that the Collector shall make reference under section 19 to the Court only if the application under Section 18(1) is made within the prescribed period laid down in either of the provisos to Section 18(2). Perusal of record shows that vide order dated 09.03.2011 passed by LAC, the applications under section 18 of L.A. Act, 1894 were rejected as time barred and references in the present cases were made before the Ld. Predecessor only on 21.08.2015, when directed by Hon'ble High Court of Delhi vide order dated 28.05.2015 passed in W.P. (C) 5704/2015, W.P. (C) 5705/2015, W.P. (C) 5708/2015 and W.P. (C) 5709/2015. The aforesaid order is reproduced hereinunder as:-
"These petitions only seek a direction to the Land Acquisition Collector to forward the petitions under Section 18 of the Land Acquisition Act, 1894 to the Reference Court. According to the petitioner, the petitions have been pending before the Land Acquisition Collector since the year 2008.
We dispose of these petitions with a direction that the Land Acquisition Collector shall forward the reference petitions to the Reference Court within a period of six weeks from today in accordance with law."LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 21/67
LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA
LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA
LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA
35. Pertinently, the aforesaid order does not reflect that the respondents have raised a plea of limitation in the aforesaid writ petitions. Be that as it may, since the specific issue of limitation has been framed, this court is looking into the said issue of limitation on merits.
36. The petitioners claimed to have received the notice dated 08.01.2008 under Section 12(2) of L.A. Act, 1894 on 19.01.2008 and filed the reference petitions before the LAC on 11.03.2008. Admittedly, notice under Section 12(2) of L.A. Act, 1894 was not accompanied with the copy of award dated 31.12.2007, which is also apparent from the notice itself. The petitioners further claim that certified copy of the award was applied on 24.01.2008, which was received on 12.02.2008 and the time of 19 days consumed in obtaining certified copy of award should be excluded.
37. The relevant question for consideration for deciding plea of limitation is whether the copy of the award was mandatorily required to be sent to the petitioners along with notice under Section 12(2) of L.A. Act, 1894. Section 12(2) of L.A. Act, 1894 mandates the Collector to give immediate notice of his award to interested persons who were neither present personally nor represented at the time of passing of award.
38. The Hon'ble Apex Court in Bhagwan Dass & Ors vs. State of UP & Ors. (supra) has observed in para 12 as:-LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 22/67
LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA
LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA
LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA
"12. The following position therefore emerges from the interpretation of the proviso to section 18 of the Act :
(i) If the award is made in the presence of the person interested (or his authorised representative), he has to make the application within six weeks from the date of the Collector's award itself.
(ii) If the award is not made in the presence of the person interested (or his authorised representative), he has to make the application seeking reference within six weeks of the receipt of the notice from the Collector under section 12(2).
(iii) If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice under Section 12(2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award.
(iv) If a person interested receives a notice under section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice under section 12(2) of the Act was the date of knowledge of the contents of the award. A person who fails to make an application for reference within the time prescribed is not without remedy.
It is open to him to make an application under section 28A of the Act, on the basis of an award of the court in respect of the other lands covered by the same acquisition notification, if there is an increase. Be that as it may."
39. The Hon'ble Apex Court in Premji Nathu vs. State of Gujarat (supra) after taking note of aforesaid judgment has observed as:-
LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 23/67LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA
LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA
LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA
"15. .... This implies that copy of the award had not been sent to the appellant along with the notice and without that he could not have effectively made an application for seeking reference. On behalf of the State Government, no evidence was produced before the Reference Court to show that copy of the award was sent to the appellant along with the notice. Unfortunately, while deciding issue No.3, this aspect has been totally ignored by the Reference Court which mechanically concluded that the application filed on 8.4.1985 was beyond the time specified in Section 18(2)(b). The learned Single Judge of the High Court also committed serious error by approving the view taken by the Reference Court, albeit without considering the fact that the notice issued by the Collector under Section 12(2) was not accompanied by a copy of the award which was essential for effective exercise of right vested in the appellant to seek reference under Section 18(1)."
40. It is thus trite from the reading of the aforesaid judgment that it was necessary to send copy of award alongwith notice under section 12(2) of L.A. Act, 1894. Once copy of award was not sent to the petitioners, the petitioners could not have effectively filed an application for seeking reference under Section 18(1) of L.A. Act, 1894.
41. Pertinently, copy of award dated 31.12.2007 placed on record reflects that certified copy of the award was obtained, however, date of applying of certified copy is not mentioned and date of receipt of the same is not legible thereon. After the judgment has been reserved, the original certified copy of award was filed in one of the petitions namely 'Kanta Kumari Vs UOI and anr'. Filing of same at this stage was objected to on behalf of the respondents. Be that as it may, the LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 24/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA date of applying of certified copy of award is also not mentioned even on original certified copy of award while it shows that the same was obtained on 12.02.2008. Even otherwise, it was for the LAC to ensure that copy of award be sent to the petitioners along with notice under Section 12(2) of L.A. Act, 1894.
42. It is also the case of the petitioners that the LAC had to send notice under Section 12(2) of L.A. Act, 1894 only after receipt of the compensation amount. Ld. Counsel for the petitioners has placed reliance on the judgment of Hon'ble Apex Court passed in DDA vs. Sukhbir Singh (supra) and Mahender Kumar Vs. LAC (supra). The Hon'ble Apex court has observed in aforesaid judgement as :-
"22. A cursory reading of these paragraphs will show that it is only pursuant to judicial orders that the State wakes up from its slumber. It is important to note that a notice of award under Section 12(2) to persons interested can only be issued after money is received by the Land Acquisition Collector, and that the said Collector shall not take possession of land unless and until compensation amount is received by him. Further, actual payment to land owners must be made latest within a period of 60 days. It is high time that the State realizes that persons whose property is expropriated need to be paid immediately so as to rehabilitate themselves. Also, it cannot be forgotten that the amount usually offered by way of an award of a Land Acquisition Collector under the 1894 Act is way below the real market value, which is only awarded and paid years later when the reference proceedings culminate in judgments of the High Courts and of this Court.".
43. It is apparent from the reading of aforesaid judgment that LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 25/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA notice under section 12(2) of L.A. Act, 1894 could only be issued by the LAC only after receipt of compensation amount. Apparently, vide letter dated 29.05.2008 Ex. CW8/2, LAC had made request to Dy. Secretary (Land & Building Department) for remitting the balance amount of compensation.
44. In order to rebut the aforesaid contention, the respondents have made reference to Section 17 of L.A. Act, 1894 and stated that the land in question was acquired for public purpose i.e. construction of Metro Corridor under urgency clause, which empowers the LAC to take possession of the land within 15 days of the publication of Notice as mentioned in Section 9 of L.A. Act, 1894, and thus, the submission of the petitioners in this regard is not tenable. In order to appreciate the said contention, it is necessary to refer section 17 of L.A. Act, 1894, relevant subsections of which are reproduced hereinunder as :-
17. Special powers in case of urgency. - (1) In cases of urgency whenever the appropriate Government, so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section 1). [take possession of any land needed for a public purpose]. Such land shall thereupon [vest absolutely in the [Government], free from all encumbrances.
(2)--------
(3) In every case under either of the preceding sub- sections the Collector shall at that time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and from any other damage sustained by them caused by such sudden dispossession and not excepted in section 24;
LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 26/67LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA
LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA
LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA
and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.
3[(3A) 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 person 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.
(3B) The amount paid or deposited under section (3A), shall be taken into account for determining the amount of compensation required to be tendered under section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under section 11, the excess may, unless refunded within three months from the date of Collector's award, be recovered as an arrear of land revenue].
[(4) ------------------------------------------------------------------------"
45. Subsection 3A of Section 17 of L.A. Act, 1894 mandates that the LAC shall tender payment of 80% of compensation to the petitioners before taking possession of the land acquired in case of urgency. As per letter dated 29.05.2008 Ex. CW-8/2, the LAC had requested the L&B department to remit the amount and likewise as per letter dated 06.07.2009 Ex. CW-8/1, the amount was deposited by LAC before the court, so question of offering of 80% compensation on the date of acquisition on 17.08.2006 appears to be implausible. Even, nothing has LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 27/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA been placed on record by the respondents that the LAC had availability of 80% of the compensation amount to tender the same to the petitioners in terms of Section of 17(3A)(a) of L.A. Act, 1894. The petitioners have also stated on affidavit that LAC had failed to pay and/or deposit the amount of compensation within the meaning of Section 17 or Section 30/31 of the L.A. Act,1894 and the amount of compensation was deposited by LAC under Section 31 of the L.A. Act with this Court on 06.07.2009 without first offering the amount to them. The said deposition of the petitioners has not been rebutted in evidence by the respondents.
46. Section 17 of L.A. Act, 1894 provides for tendering of 80% of compensation to the petitioners before acquisition of land, therefore, Section 12(2) of L.A. Act, 1894 does not come into operation prior to receipt of compensation amount by the LAC. In the absence of non- payment/ non offer of any part of compensation on the date of acquisition of properties in question on 17.08.2006, there is no merit in the contention of the respondents that issuance of notice under Section 12(2) of L.A. Act, 1894 is in accordance with law.
47. The third limb of argument of Ld. Counsel for the petitioners is that since the corrigendum was issued under Section 13A of L.A. Act, 1894 on 05.04.2008, limitation period shall commence from the said date. In this regard, Section 13A of L.A. Act, 1894 is reproduced hereinunder as :-
LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 28/67LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA
LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA
LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA
"13A. Correction of clerical errors, etc. - (1) The Collector may, at any time but not later than six months from the date of the award, or where he has been required under section 18 to make a reference to the Court, before the making of such reference, by order, correct any clerical or arithmetical mistakes in the award or errors arising therein either on his own motion or on the application of any person interested or a local authority:
Provided that no correction, which is likely to affect prejudicially any person, shall be made unless such person has been given a reasonable opportunity of making a representation in the matter.
(2) The Collector shall give immediate notice of any correction made in the award to all the persons interested. (3) ......................................................................"
48. It is explicit from the reading of aforesaid section that notice was required to be given only if the correction is likely to affect prejudicially any person and not otherwise. Thus, the aforesaid contention of ld. Counsel for the petitioners that fresh period of limitation shall start from the date of corrigendum i.e. 05.04.2008 is not sustainable inasmuch as LAC could correct any clerical or arithmetical mistakes in the award not later than six months of the date of award and prior to making reference under Section 18 of L.A. Act, 1894. It is relevant to note herein that vide said corrigendum dated 05.04.2008, the LAC had admittedly corrected the word 'residential' to 'commercial' in the award, which is not of such nature as to prejudicially affect any of the petitioners herein. Thus, the issuance of Corrigendum will not extend the period of limitation.
LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 29/67LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA
LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA
LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA
49. The cumulative effect of the aforesaid discussion is that the LAC was required to send notice under Section 12(2) of L.A. Act, 1894 alongwith the award, which has admittedly not been sent to the petitioners. Further, nothing has been pointed out by the respondents to show that the LAC had received 80% of the compensation amount on 17.08.2006 i.e. date of acquisition of the properties in question and on 08.01.2008 i.e. date of issuance of notice under section 12(2) of L.A. Act, 1894. Rather, there is letter dated 29.05.2008 Ex. CW8/2, which shows that the LAC had asked Land & Building Department to remit the amount of compensation in respect of acquisition of land of Village Jhilmil Tahirpur and letter dated 06.07.2009 Ex. CW8/1 whereby compensation amount had been deposited with Ld. Predecessor of this Court. Therefore, in terms of ratio of judgment of Hon'ble Apex Court passed in DDA vs. Sukhbir Singh (supra), no valid notice under section 12(2) of L.A. Act, 1894 was issued to the petitioners/claimants herein.
50. Pertinently, proviso (b) to Section 18(2) of the L.A. Act, 1894 stipulates that the application for reference could be made within 6 weeks of receipt of notice under Section 12(2) from the LAC or within six months from the date of Collector's award, whichever period shall first expire. In the instant case, the sending of notice under Section 12(2) of L.A. Act, 1894 was premature, therefore, no such valid notice was sent to the petitioners. In such circumstances, second limb of proviso (b) to Section 18(2) shall apply i.e. application for reference was to be preferred within six months from the date of award. In view thereof, the reference applications filed before the LAC on 11.03.2008 are within six LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 30/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA months of the award dated 31.12.2007 i.e. within period of limitation. Accordingly, this issue is decided in favour of the petitioners and against the respondents.
Issue no.1: Whether the claimant proves that the compensation arrived at by Land Acquisition Officer is unfair in the circumstances of the case and calls for enhancement ? OPP
51. Before considering the rival contentions of the parties, one may peruse the summary of the award dated 31.12.2007 as:-
1. Rate of one Sq. Meter (Residential) Rs. 6450/-
2. Market value of the land measuring Rs. 9,07,38,600/- 16 Bigha 16 Biswa i.e. 14068 sq. Mts.
3. Solatium @ 30% of market value Rs. 2,72,21,580/-
4. Additional amount @ 12% of market Rs. 38,18,479/-
Value w.e.f 12.04.2006 (date of Not. U/s 4 to 17.08.2006 (Date of possession (128 days)
5. Cost of structures Rs. 7,35,83,520/-
6. Total amount of compensation Rs.19,53,62,179/-
7. Interest U/s 34 of L.A. Act @ 9% for one Rs.1,75,82,596/- Year.
8. Interest U/s 34 of L.A. Act @ 15% Rs. 85,10,298/-
for 106 days.
9. Total Rs.22,14,55,073/-.
52. Ld. Counsel for the petitioners submitted that Section 23 of LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 31/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA L.A. Act, 1894 mandates that LAC has to consider all the aspects as provided under sub clause first to sixthly of the said section. He submitted that as per sub clause first, market value of the land is to be determined on the date of issuance of notification under Section 4 of L.A. Act, 1894, which is 12.04.2006 in the instant case. He contended that the LAC had fixed the market value of land @ Rs.6450/- per sq. meter vide award dated 31.12.2007, which is meagre for the commercial land. For assessment of market value of land, he has mainly relied upon the documents i.e. (a) sale deed dated 20.03.2006 Ex.CW13/3 in respect of plot no. 1, Patparganj Industrial Complex admeasuring 2000 sq. meter which was sold for sale consideration of Rs. 9.25 Crores i.e. @ Rs.45,000/- per sq. meter; (b) Office Memorandum/Circular of the Ministry of Urban Development, Land and Development Office, Government of India dated 02.05.2017 Ex.CW-15/1 which provides land rate as Rs. 30,000/- per sq. meter w.e.f. 01.04.2006 to 31.03.2007; (c) Circular of DDA dated 18.04.2006 Ex.CW-18/1, which provides the conversion rates of commercial/ industrial properties from leasehold to freehold for 2006-2007; (d) Circular dated 11.11.2009 Ex.CW-2/1 issued by the office of Commissioner of Industries, Govt. of NCT of Delhi, which notifies the market rate for disposal of land and for charging unearned increase on industrial land allotted by the department for the year 2006-2007 as Rs. 22,289/- per sq mtr.; (e) document dated 10.07.2008 Exhibit CW-2/2 which provides conversion rate/charges in respect of industrial plots from lease hold to free hold for the year 2006- 2007 as Rs. 18,000/- per sq mtr.; (f) auction sale of industrial property admeasuring 105 sq yds in Gali No. 6, Friends Colony Industrial Area by LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 32/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA Debts Recovery Tribunal-II, on 21.12.2006 vide Ex. CW-9/1, Ex. CW- 9/2, Ex. CW-9/3 and Ex. CW-19/1 for Rs. 46,70,000/- i.e. @ Rs. 53,192/- per sq. meter.; (g) Valuation report dated 17.01.1998 Ex. CW-16/1, prepared by Government approved valuer in respect of property in Village Chandrawali, as per which the prevailing market rate in Jan, 1998 was Rs.25,000/- to Rs.30,000/- per sq. yards which would be around Rs. 70,000/- per sq mtr in the year 2006; (h) Ex. CW-14/1 & Ex. 14/2, which is record of office of the department of revenue regarding Circle rates; & (i) Copy of Master Plan of Delhi-2021 Ex. CW13/16 to show Jhilmil Industrial Area, Patpar Ganj Industrial Area and Friends Colony Industrial Area in Category -'G'.
53. Ld. Counsel for the R-1 and SO (L) of respondent no. 2 submit- ted that the petitioners through CW9 from the office of Recovery Officer, DRT-II, New Delhi, CW17 & CW-18 from the office of DDA, Vikas Sadan, INA, New Delhi placed on record auction proceedings of the properties conducted in different parts of Delhi and NCR but the same is not rele- vant as the said properties are far away from the acquired land. It is fur- ther submitted that the Hon'ble Apex Court in the judgment of Executive Engineer, Karnataka Housing Board vs. Land Acquisition officer, Gadag and Ors. 2011 (2) SCC 246 has observed that Courts are wary of relying upon auction sale transaction when other regular traditional sale transactions are available while determining the market value of ac- quired land. It is further submitted that the petitioners have also relied upon various documents viz Circle rates implemented after year 2007 as well as sale deed executed on 20.03.2006 Ex. CW13/3 for the LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 33/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA property located at Patparganj Industrial Area, which is at a distance of 8 to 9 Kms from the land in question and to substantiate the same, copy of google map was also filed during course of the arguments. It is further submitted that various factors like location in the interior at a distance from the road, narrow strip of land with very limited access, remoteness from the developed locality and falling adjacent to railway track proves that potentiality of the land is very low. It is further contended that the petitioners through CW15, witness from the office of L&DO has produced on record schedule of land rates w.e.f. 01.04.2000 onwards of different areas of Delhi vide Ex. CW15/1 issued by L & DO, however, the same is not applicable as it has been notified on 02.05.2017 i.e. after 11 years of date of notification under Section 4(1) of the L.A. Act on 12.04.2006 and it has no retrospective effect. It is also contended that certified copies of sale deeds as Ex. R2/2 (colly) and Ex. R2/4 (colly) pertaining to the same area were obtained from Sub Registrar Seelam Pur, Delhi for the period near to the notification issued under Section 4 of L.A. Act, 1894, which gave average rate of sale varying from Rs. 2712.01 per sq. meter to Rs. 3907.18 per sq. meter while the LAC has fixed the market value @ Rs.6450/- per sq. meter which is more than the true and correct mar- ket value of land based on facts, circumstances and prevailing market rate at the time of acquisition. It is thus urged that fair and reasonable market value has been assessed by the LAC which does not require any interference. Ld. Counsel for respondent no.1 has relied upon Bijender & Ors. vs. State of Haryana & Ors., MANU / SC / 1362 / 2017 in sup- port of the contention that comparable sale deeds should be established by adducing material evidence by examining the parties to the LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 34/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA sale or persons having personal knowledge of the sale transactions, which focuses on the fact whether the transactions relied on are genuine and bonafide transactions or not.
54. Heard and perused the record.
55. The LAC while assessing the market value of land has ob- served that properties under acquisition are situated adjacent to Shah- dara flyover and have commercial as well as industrial activity in the vicinity. He has considered the Joint survey report conducted by the offi- cials of Land Acquisition Collector (Land & Building Department) and DMRC to ascertain the use of the land under acquisition. To assess the market rate of land, LAC had considered the schedule of rates circulated by Ministry of Urban Affairs and Employment, Department of Urban De- velopment (land Division) vide No. J-22011/4/95-LD dated 16.04.1999 for the period from 01.04.1998 to 31.03.2000 which was Rs. 2805/- per sq. meter for residential land and Rs. 5865/- per sq. meter for commer- cial land in Jheel Khuranja; Rs. 2805/- per sq. meter for residential land and Rs. 5865 per sq. meter for commercial land in Geeta Colony; Rs. 1980/- per sq. meter for residential land and Rs. 4140/- per sq. meter for commercial land in Narela and other outlying colonies. The LAC has applied the rate of Rs. 5865/- per sq meter for commercial land in Jheel Khurenja and Geeta Colony by stating that area of Jheel Khuranja and Geeta Colony though not in immediate proximity of the land under acqui- sition, but are nearest in terms of distance and gave 10% escalation over the rate effective from 01.04.1998 to 31.03.2000 and held that rate of Rs.
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5865/- per sq. meter after escalation of 10% comes to Rs. 6451.50 which was rounded off to Rs. 6450/-.
56. The assessment of market value of acquired land on the basis of rate effective for the period from 01.04.1998 to 31.03.2000 as circu- lated by Land Division of Ministry of Urban Development is not legally sustainable as the LAC was required to assess the rate as prevalent on 12.04.2006 i.e. date of notification under Section 4 of L.A. Act, 1894. The grant of escalation of 10% on Rs. 5865/- per sq. meter for the period of six years would not justify the assessment of fair market value of land in question.
57. Section 23 of L.A. Act, 1894 provides that in order to determine the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration the market value of the land on the date of publication of notification under section 4(1).
58. In Kapil Mehra vs. UOI MANU/SC/0947/2014, the Hon'ble Apex Court has observed that market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaf- fected by the special needs of a particular purchase, and where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, other sale instances as well as other evidence have to be considered. It has been further observed that for the purpose of fixa- tion of fair and reasonable market value of any type of land, abnormally high value or abnormally low value sales should be carefully discarded.
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The factors have also been mentioned in para 10, which are required to considered in determining the market value of the land as:-
(i) existing geographical situation of the land ;
(ii) existing use of the land;
(iii) Already available advantages, like proximity to national or state highway or road and/or developed area and ;
(iv) Market value of other land situated in the same locality/village/area or adjacent or very near to the ac-
quired land.
59. In Karnataka Urban Water Supply & Drainage Board & Ors. vs. K.S.Gangadharappa & Anr. MANU/SC/0598/2009, the Hon'ble Apex Court has observed as:-
"11. It can be broadly stated that the element of speculation is reduced to minimum if the underlying principles of fixation of market value with reference to comparable sales are made as:-
(i) when sale is within a reasonable time of the date of notification under Section 4(1);
(ii) it should be a bona fide transaction;
(iii) it should be of the land acquired or of the land adjacent to the land acquired; and
(iv) it should possess similar advantages."
60. The petitioners have placed reliance on the sale deed Ex.CW19/1, which has been executed by DRT with respect to free hold built up property bearing no. 1/422, admeasuring 105 sq. yards part of Khasra no. 1124/324 in village Jhilmil Tahirpur, Friends Colony Industrial LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 37/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA area, Gali no. 6, Shahdara, Delhi and the sale was pursuant to public auction notice dated 21.12.2006 Ex. CW9/3 whereby the reserved price was fixed at Rs. 35.00 Lacs, however, the same was sold for Rs. 46,70,000/-. The Petitioner Kanta Kumari has testified in para 42 of her evidence by way of affidavit that the aforesaid property was at a distance of 500 meters from the property in question. She further deposed that both the properties were located in the same industrial area which is no- tified in category 'G' in the list of colonies notified by Govt. of Delhi.
61. The petitioners have also relied upon the sale deed dated 20.03.2006 Ex. CW13/3 in respect of plot no.1 Patparganj Industrial Area, Delhi admeasuring 2000 sq. meter which was sold for Rs. 9.25 Cr. i.e. @ Rs. 45,000 per sq. meter. The petitioners have stated on affidavit that Patparganj Industrial area is one of the 3 approved industrial areas including Jhilmil Industrial area and Friends Colony Industrial area, which falls under category 'G' in the listed colonies notified by the Govt. of NCT of Delhi. According to the petitioners, property situated in Pat- parganj Industrial Area is at a distance of 3 Kms from the property in question. During cross-examination, CW-13 Kanta Kumari reiterated that land involved in sale deed dated 20.03.2006 is at a distance of ap- proximately 3 Kms from the land in question. She also testified that Pat- parganj Industrial Area was developed by Department of Industries, Jhilmil Industrial Area was developed by DSIIDC and Friends Colony In- dustrial Area was developed on its own.
62. The petitioners have also relied upon the auction notices dur- ing the period of 2006-2012 issued by DDA with respect to residential LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 38/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA properties located at various locations. The auction notices have been proved by CW-17 Sh. Anil Kumar Sharma, ASO, Lab Residential, DDA, Vikas Sadan, INA, Delhi as Ex. CW17/1 in respect of properties auc- tioned by DDA for the period of 2006 to 2012. Since the aforesaid auc- tion notices do not pertain to the vicinity where the properties in question are located, the said notices of the DDA are not relevant for the purpose of ascertaining the market value of the land in question.
63. Regarding comparable sale transactions, the petitioners have thus mainly relied upon aforesaid two sale deeds i.e. Ex.CW13/3, which is sale transaction dated 20.03.2006 pertaining to property in Patparganj Industrial Area and Ex.CW19/1 which pertains to auction sale transac- tion dated 21.12.2006 in the same area as per auction notice Ex.PW9/3 and auctioneer report Ex.CW-9/1. It has already come on record that the property located in Patparganj Industrial Area was at a distance of 3 Kms from the properties in question and property sold by way of auction sale conducted on dated 21.12.2006 was at a distance of 500 meters from the properties in question. Having considered the distance between property located in Patparganj Industrial Area and properties in question as 3 Kms, this court would prefer to look into the sale transaction dated 21.12.2006 which is with respect to the property located within 500 mtr of the properties in question and is contemporaneous in point of time to the date of notification under section 4(1) of L.A. Act, 1894.
64. Besides the aforesaid sale transactions, the petitioners have also relied upon Ex.CW15/1, which is schedule of commercial land rates issued on dated 02.05.2017 by Ministry of Urban Development, Land LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 39/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA and Development office, Govt. of India, which provides for fixation of rates of commercial land being administered by L&DO w.e.f. 01.04.2000 onwards. Perusal of the aforesaid schedule shows that rate for com- mercial land for the period w.e.f. 01.04.2006 to 31.03.2007 was Rs. 30,000/- for Jheel Khurenja; Rs.30,000/- for Geeta Colony and Rs. 12,000/- for Narela and other outlying colonies. However, SO (L) of re- spondent no. 2 submitted that said schedule of commercial land rates notified vide Circular dated 02.05.2017 Ex. CW15/1 is not having retro- spective application.
65. In the impugned award, the LAC has relied upon the Circular dated 16.04.1999 issued by the same department for the period from 01.04.1998 to 31.03.2000 which provided the rate as Rs. 5865/- per sq. meter for commercial land of Jheel Khuranja and Geeta Colony, though land in question were notified to be acquired on 12.04.2006. Perusal of Ex. CW15/1 shows that Land & Development office of Ministry of Urban Development after considering the recommendations of Land Rates Re- vision committee (LRRC) under the Chairmanship of Addl. Secretary (UD) had accepted the recommendations and aligned the rates of com- mercial land being administered by L & DO to that of conversion land rates of DDA for commercial properties w.e.f. 01.04.2000 onwards. Since the rates stands notified vide Ex. CW15/1 w.e.f. 01.04.2000 on- wards, therefore logically, any assessment will have to be done on the basis of said rates for the relevant period.
66. The petitioners have also relied upon Circular of DDA dated LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 40/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA 18.04.2006 Ex. CW18/1 which provides revised rates for conversion of commercial/industrial properties from leasehold to free hold for the financial year 2006-2007 for East Delhi as Rs. 18,000/- per Sq mtr for industrial properties. The petitioners have also placed reliance on Ex. CW14/1 & Ex. CW14/2, which is the record maintained in the office of Revenue Department in respect of notification of circle rates during the period 2001 to 2010 proved on record by CW-14 Sh Rakesh, Jr. Assistant from the office of Dy. Commissioner (Revenue Department). In response to the same, it was contended on behalf of the respondents that the circle rate is also not applicable for assessment of market value of land as held in Lal Chand vs. UOI AIR 2010 SC 170. In the said case, the Hon'ble Apex Court has observed in para 16 that the guideline market value can be a relevant piece of evidence only if they are assessed by statutorily appointed Expert Committees, in accordance with the prescribed assessment procedure and finalized after inviting objections and published in the Gazette. Therefore, it is inferred that the circle rate cannot be by itself the only guiding factor/basis for the purpose of ascertaining the market value of the properties in question, if there are other cogent and other contemporaneous material available for assessing the market value of the land in question.
67. On the other side, the respondents have relied upon 4 sale deeds Ex. R-2/2 for the period of 2006-2007 and thereafter, upon mov- ing application under Order 8 Rule 1 CPC, another 7 sale deeds for the period of February, 2004 to October, 2004 Ex. R-2/4 were placed on record. Ld. Counsel for the petitioners had pointed out that DMRC had LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 41/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA sought low value sale deeds as per para 4 of the said application and thus, the said sale deeds Ex. R-2/4 cannot be considered for ascertain- ing the market value of properties in question.
68. The Hon'ble Apex Court has held in Lal Chand vs. UOI (supra) that the distance between the two properties, the nature and sit- uation of the property, proximity to the village or a road and several other factors may all be relevant in determining the market value. Mere pro- duction of some exemplar deeds without `connecting' the subject matter of the instrument, to the acquired lands will be of little assistance in de- termining the market value.
69. It is also worthwhile to mention herein that the 4 sale deeds Ex. R2/2 pertaining to the year 2006-2007 do not indicate that the said sale deeds are for industrial/commercial land. Further, there is nothing on record to find out the distance between the properties sold vide said sale deeds Ex. R-2/2, Ex. R-2/4 and properties in question. Pertinently, R2W1 Sh. Vijay Kumar has denied personal knowledge of said sale deeds. It is also not out of place to mention herein that all the four sale deeds Ex. R-2/2 pertain to different areas of same chunk of property and the buyer is also same in three of sale deeds. Therefore, it was neces- sary for the respondents to examine the buyer in the aforesaid sale deeds to prove that the said sale transactions are genuine and bonafide. In view thereof, the said sale deeds fall out of zone of consideration for assessing market value of the land in question, irrespective of the fact that they are of contemporaneous period to the date of notification under section 4 of L.A. Act, 1894.
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70. The respondent no.2 /DMRC has stated in para 4 of the appli- cation under order 8 Rule 1 CPC that it had approached the Sub Regis- trar, Seelampur/Seelampuri to provide certified copies of low value sale deeds near to the time of date of notification issued under Section 4 of L.A. Act, 1894 so that same could be relied upon in evidence to avoid extra financial burden from the enhancement of compensation amount of the acquired land and the concerned Sub registrar had supplied the same accordingly. It is thus evident from bare perusal of Section 4 of the aforesaid application that respondent no.2, in order to avoid en- hancement of the compensation amount, had asked for low value sale deeds, which dents the case of the respondent no.2/DMRC.
71. The aforesaid seven sale deeds Ex. R2/4 are with respect to Village Jhilmil, Tahirpur, GT Road, Shahdara, Delhi for the area ranging from 50 sq. yards to 110 sq. yards. Pertinently, all the seven sale deeds for the period of February 2004 to October 2004 are with respect to dif- ferent areas of two chunk of properties and one of the said two chunk of properties (i.e. Prop. No. 1/536 situated in abadi of Friends Colony In- dustrial Area Khasra no. 334/35-32-20, 313-311-310 situated in Village Jhilmil, Tahirpur, GT Road, Shahdara) is in Friends colony Industrial Area and three sale deeds have been executed with respect to different areas of the said chunk of property. Indeed, said sale deeds are of Feb- ruary, July and September, 2004 i.e. much prior to 12.04.2006, date of notification under section 4(1) of L.A. Act, 1894. Further, in the absence of any specific details regarding nature and proximity of the said chunk of industrial property to the properties in question, the said sale deeds LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 43/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA also fall out of zone of consideration. Accordingly, it would neither be relevant nor be prudent to rely upon sale deeds Ex R-2/2 and Ex. R-2/4 while assessing the market value of the lands in question.
72. It is not out of place to mention herein that LAC has not relied upon the sale deeds Ex. R-2/2 and Ex. R-2/4 to arrive at market value of the properties in question, and infact, the said sale deeds provide the rates lower than the rate awarded by the LAC.
73. In Anjani Molu Dessai vs State Of Goa & Anr, 2010 (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 the exemplars, which is a bona fide transaction, 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. Consequently averaging can not be resorted to. We may refer to two decisions of this Court in this behalf."
74. Reading of the aforesaid judgment envisages that where there are several exemplars with reference to similar land, usually the highest of the exemplars, which is a bona fide transaction, will be considered. In the instant case, auction sale conducted on 21.12.2006 vide auction LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 44/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA notice Ex CW-9/3 and sale deed dated 26.06.2007 Ex CW-19/1 reveals the land rate as Rs. 53,192/- per sq. meter and is also nearest to the properties in question. The rates given by the governmental authorities for the relevant period are in consonance with the rate of the property which was sold by way of auction vide sale deed Ex CW-19/1. It is relevant to mention herein that during the cross-examination of CW-13, nothing has been put to the witness that the auction sale was not genuine or bonafide or that the said property is not in the vicinity of the properties in question and is not similar to them. On the other side, R2W1 Sh. Vijay Kumar has simply tendered the sale deeds by stating that the said four sale deeds of the year 2006-2007 Ex.R2/2 (53 pages) have been issued by the office Sub Registrar IVA, Shahdara/Seelam Puri vide covering letter dated 28.02.2019 Ex.R2/1 and seven sale deeds of the year 2004 Ex. R-2/4 have been issued from the office of Sub Registrar IV, Seelampur vide covering letter dated 10.12.2019 Ex.R2/3. In cross-examination, R2W1 has denied personal knowledge of the sale deeds produced on record by him.
75. It is again relevant to note herein that the LAC has also not relied upon the said 11 certified copies of sale deeds, Ex.R2/2 and Ex. R2/4. The LAC has passed the award on the basis of schedule of rates circulated by Ministry of Urban Development (Land Division) vide Circular dated 16.04.1999 for the period from 01.04.1998 to 31.03.2000, though the relevant date for the said purpose was 12.04.2006 i.e. date of notification under section 4 of L.A. Act, 1894. The LAC had given 10% escalation on the rate of Rs 5,865/-, which was the rate notified for LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 45/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA Jheel Khuranja and Geeta colony having considered the fact that notification under section 4(1) of L.A. Act, 1894 was issued on 12.04.2006. Since the fresh Schedule of commercial land rates by L & DO, Ministry of Urban Development Ex. 15/1 had already come into operation w.e.f 01.04.2000, which provides rate as Rs. 30,000/- w.e.f. 01.04.2006 to 31.03.2007 for Jheel Khuranja and Geeta Colony, therefore, the rate assessed by Ld. LAC is apparently on lower side. In view thereof, this referral court will be well within its jurisdiction to take note of the same in considering the prayer of the petitioners in seeking the enhancement. Admittedly, the properties in question are freehold commercial/industrial properties, therefore, the value of conversion rate from leasehold to freehold also should have been taken into consideration by LAC while assessing its market value, which exercise was not undertaken by the LAC. The conversion rate from leasehold to freehold for industrial properties located in East Delhi (wherein the properties in question are located) as per Circular dated 18.04.2006 Ex. CW-18/1 is Rs. 18,000/- per sq mtr. Therefore, upon adding conversion rate of Rs. 18,000/- per sq mtr. to Rs. 30,000/- per sq mtr, which is market value of commercial land as per Circular dated 02.05.2017 Ex. CW-15/1 for the period of 01.04.2006 to 31.03.2007, the land rate comes to Rs. 48,000/- per sq. mtr. for the properties in question.
76. Indeed, the aforesaid rate of Rs. 48,000/- per sq. mtr. calculated as per the guidelines of the Government Authorities is less than the sale consideration of the property measuring 105 sq. LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 46/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA yards (87.80 sq. meters) sold by way of auction on 21.12.2006, for Rs. 46,70,000/- i.e. @ Rs.44,476/- per sq. yard (Rs. 53,189/- per sq. meter) to one Sh. Abhishek Jain vide sale deed Ex.CW19/1, which is located at a distance of 500 meters from the properties in question. No material has been brought on record either by way of affirmative evidence or by way of cross-examination on the part of respondents, to create any doubt on the bonafide of the said auction sale. Therefore, there is no reason for this court to discard the rate of Rs. 48,000/- per sq. mtr as calculated vide circular of Govt. Authorities when there is also a sale deed Ex CW 19/1 which provide the rate as Rs. 53,189/- per sq meter for the property auctioned on 21.12.2006, which is contemporaneous in point of time to the date of notification U/s 4(1) of L.A. Act, 1894.
77. SO (L) of respondent no.2 has also urged that the sale price of the auction sale conducted vide sale deed Ex. CW19/1 cannot be relied upon to ascertain the market value of the properties in question. In support of his contention, he has relied upon the judgment of Hon'ble Apex Court passed in Kapil Mehra vs. Union of India, MANU/SC/0947/2014 and Executive Engineer, Karnataka Housing Board Vs LAC Gadag and Ors, 2011 (2) SCC 246. This Court has carefully gone through the aforesaid two judgments and noticed that judgment of Executive Engineer, Karnataka Housing Board vs. LAC Gadag & Ors. (supra) has been taken note of by Hon'ble Apex Court in Kapil Mehra vs. Union of India (supra). Relevant paras 26 and 28 of Kapil Mehra vs. Union of India are reproduced hereinunder as:-
LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 47/67LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA
LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA
LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA
"26. While considering the competition involved in auction sales of commercial/residential plots and observing that the element of competition in auction sales make them unsafe guides for determining the market value of the acquired lands, in Executive Engineer, Karnataka Housing Board v. Land Acquisition Officer, Gadag And Ors., (2011) 2 SCC 246 paras 6 & 7, this Court held as under:-
"6. But auction-sales stand on a different footing. When purchasers start bidding for a property in an auction, an element of competition enters into the auction. Human ego, and desire to do better and excel over other competitors, leads to competitive bidding, each trying to outbid the others. Thus in a well advertised open auction- sale, where a large number of bidders participate, there is always a tendency for the price of the auctioned property to go up considerably. On the other hand, where the auction-sale is by banks or financial institutions, courts etc. to recover dues, there is an element of distress, a cloud regarding title, and a chance of litigation, which have the effect of dampening the enthusiasm of bidders and making them cautious, thereby depressing the price. There is therefore every likelihood of auction price being either higher or lower than the real market price, depending upon the nature of sale. As a result, courts are wary of relying upon auction-sale transactions when other regular traditional sale transactions are available while determining the market value of the acquired land. This Court in Raj Kumar v. Haryana State (2007) 7 SCC 609 observed that the element of competition in auction-sales makes them unsafe guides for determining the market value.
7. But where an open auction-sale is the only comparable sale transaction available (on account of proximity in situation and proximity in time to the acquired land), the court may have to, with caution, rely upon the price disclosed by such auction-sales, by providing an appropriate deduction or cut to offset the competitive hike in value. In this case, the Reference Court and the High LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 48/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA Court, after referring to the evidence relating to other sale transactions, found them to be inapplicable as they related to far away properties. Therefore we are left with only the auction-sale transactions. On the facts and circumstances, we are of the view that a deduction or cut of 20% in the auction price disclosed by the relied upon auction transaction towards the factor of "competitive price hike"
would enable us to arrive at the fair market price." (Underlining added)
28. The general rule that the sale prices of the comparable sales should be relied upon for calculating the market value will not apply when the sale transactions relied upon are auction sales. As per the decision in Karnataka Housing Board's case (2011) 2 SCC 246, in our view, 20% deduction is to be made for competitive bidding. Deducting 20% i.e. Rs.8,984/- from Rs.44,921/-, balance arrived at Rs.35,937/- per sq. yard is fixed as the value for the acquired land."
78. The reading of the aforesaid judgment infers that likelihood of auction price being either higher or lower than the real market price depends upon the nature of sale and where the auction sale is by banks or financial institutions, Courts etc. to recover dues, there is an element of distress, cloud regarding title and a chance of litigation would have impact depressing the price which is not the case in normal bidding where human ego and desire leads to competitive bidding and the same results in higher price than the normal price. Coming back to the auction sale dated 21.12.2006 in the instant case, the sale is by DRT, and thus, the auction sale price would ordinarily be on lower side than the normal market price. In view thereof, the contention of SO (L) of respondent no. 2 that auction sale price cannot be considered by this Court, LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 49/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA is bereft of any merit.
79. In the totality of the facts and circumstances of the present case, it would be in the fitness of things to enhance the market rate of lands in question from Rs. 6450/- per sq. mtr. to Rs. 48,000/- per sq mtr as against Rs. 53,189/- per sq. meter which pertains to auction sale, having considered that the said auction sale was conducted almost after about eight months of the date of notification under section 4(1) of L.A. Act, 1894. Thus, it is held that rate of land is enhanced from Rs. 6,450/- per sq. mtr. to Rs. 48,000/- per sq mtr. This conclusion covers the relief as under subclause firstly of section 23(1) of L.A. Act, 1894.
80. Coming to subclause secondly of section 23(1) of L.A. Act, 1894, ld. Counsel for the petitioners has submitted that the LAC has awarded less amount towards acquisition of value of structure appurtenant to the land in question. He submitted that the valuation of the building structure was got evaluated by PWD from M/s A. Khanna & Associates, Govt. recognized valuer and his report was adopted by the LAC in the impugned award. He contended that the said valuer had adopted the cost index of 123 instead of 254, which ought to have been applied as per cost index chart issued by CPWD Ex. CW1/1. It is further submitted that as per Income Tax Department, cost index of 285 is applicable for valuation made on 20.04.2006 as per rates issued on 01.01.1992.
81. It is submitted on behalf of respondents that there is no error in the valuation report and the assessment of rates of structure LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 50/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA appurtenant to the land in question by the LAC.
82. The petitioners have examined Sh. Gurdass Chand, Naib Tehsildar, Metro Bhawan, who has proved certified copies of valuation reports i.e. report for the property of Sh. Amit Kumar as Ex. CW7/1, report for the property of Sh. Jagdish Kumar as Ex. CW7/2 and report for property of Sh. Ashwani Kumar and Sh. Vijay Kumar as Ex. CW7/3. This Court has perused the aforesaid valuation report of M/s A. Khanna & Associates dated 20.04.2006, which shows that valuation was done on 15.04.2006 with respect to industrial units of the petitioners. Part II of the said report reflects that replacement value of the building has been based on the CPWD plinth area rates issued vide letter dated 29.06.1992 adjusted by latest cost index and deviation from standard specifications. Apparently, the valuer has taken the cost index of 123 besides other relevant factors to arrive at structural value of the building.
83. In order to prove that cost index of 254 ought to have been adopted instead of 123, the petitioners have relied upon statement of CW-1, who has proved cost index of CPWD for the period from 01.01.1992 to 01.10.2007 Ex. CW1/1, plinth area rate of CPWD as on 01.01.1992 Ex. CW1/2 and plinth area rates of CPWD as on 01.10.2007 Ex. CW1/3.
84. Perusal of Statement of cost index of CPWD Ex. CW1/1 shows that it was 236 as on 01.04.2006. Same rate is also provided in the LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 51/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA reply dated 08.01.2015 which is given to petitioner Ashwani Kumar by CPWD in response to his RTI application. In view thereof, cost index of 236 ought to have been applied while assessing structural value of the properties in the question by the valuer (A. Khanna & Associates in report dated 20.04.2006). Accordingly, cost index of 236 be taken instead of 123 in arriving at structural value of the properties in question. Consequently, it is directed that the cost of structure calculated by M/s A. Khanna & Associates vide valuation report dated 20.04.2006 on the basis of cost index of 123, be modified by the LAC by applying the cost index as 236.
85. Regarding grievance of petitioners pertaining to subclause fourthly and fifthly of section 23(1) of L.A. Act, 1894, it is apt to refer to the claims of petitioners separately as mentioned in their respective evidence by way of affidavit. Their relevant cross-examination shall also be considered separately in this regard in the succeeding paragraphs.
Case of Kanta Kumari
86. CW13 Ms. Kanta Kumari in para 120 of her evidence by way of affidavit has claimed Rs. 18.00 Lacs towards loading, unloading, shifting and transportation charges etc.; Rs. 45.00 Lacs on account of loss incurred towards sale of plant and machinery; Rs. 20.00 Lacs towards damage suffered to stocks due to shifting; Rs. 15.00 Lacs as salary paid to the employees and retrenchment expenses during the period of shifting; Rs. 25.00 Lacs towards loss of profit from business due to LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 52/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA acquisition and thus claimed a sum of Rs. 123.00 Lacs as compensation within sub clause fourthly of Section 23 of L.A. Act, 1894. In para 121 of the said affidavit, CW-13 stated that LAC was required to assess and pay for expenses for change of place of business in consequence of acquisition of land and claimed a sum of Rs. 20.00 Lacs in this regard within the meaning of sub clause fifthly of L.A.Act, 1894.
87. CW-13 Ms. Kanta Kumari during her cross-examination dated 06.12.2018 testified that she has not filed any bill/ voucher/ bank statements etc. on record to show expenses incurred upon displacement/shifting/loading/unloading/transportation of factory from the land in question. She volunteered that she has placed on record the balance sheet for the year ending on 31.03.2007 showing the expenses incurred in shifting. She testified that she started business around April, 1999 but has not placed any document in this regard. She further testified to have not placed any document on record to show that the business was running in continuation from 1999 to 2005. She further testified that losses claimed in para 119 of her evidence by way of affidavit are not shown in the balance sheet ending on 31.03.2006 as the same is shown in the balance sheet of the year ending on 31.03.2008. She testified that all the 3 manufacturing units were separate units and she can place on record relevant documents in this regard. She admitted that no document prior 12.04.2006 is on record which can show purchase /sale /income /expenditure/profit/loss of her business at the land in question. She testified that she will try to bring the same on next date of hearing. She volunteered that balance sheet LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 53/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA for the financial year ending on 31.03.2006 is on record. She testified that she was carrying on manufacturing of aluminium sheets and products on the land in question and has placed on record MCD license to run manufacturing unit of aluminium sheets and products. In her cross-examination dated 14.12.2018, she placed on record documents Ex. CW13/14 to Ex. CW13/17 and marked A-34 to A-40.
Case of Amit Kumar Arora
88. CW-13 Sh. Amit Kumar has stated in para no. 116 of his evidence by way of affidavit that he was running a manufacturing unit from the property in question and because of complete acquisition of land, he had to remove all his movable and fixtures from the property in question which included stocks, plants, machinery and ancillaries. He has further testified in para no. 117 that he had to make an expenditure of about Rs. 9.00 lacs towards loading, unloading, shifting and transportation charges etc. He has also claimed an amount of Rs.8.00 Lacs on account of loss incurred on sale of plant and machinery; Rs.10.00 lacs as loss suffered to stocks due to shifting; Rs. 9.00 lacs as salary and retrenchment expenses paid to employees during the period of shifting; Rs. 8.00 lacs towards loss of profit from the business due to acquisition and thus claimed total amount of Rs.44.00 lacs under the Sub clause fourthly of Section 23 of the LA Act. He has further claimed an amount of Rs.15.00 lacs in para 118 of his evidence by way of affidavit towards expenses incidental to change of business premises under sub clause fifthly of L.A. Act.
LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 54/67LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA
LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA
LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA
89. During cross-examination, CW-13, Sh. Amit Arora deposed that he has not placed on record any document showing any expenses incurred on structure. He further testified that he has not placed any document regarding installation of lift on the land in question. He further testified that he has also not placed on record any Bill /voucher / bank statement etc. to show expenses incurred upon displacement/shifting /loading/unloading/transportation of his factory from the land in question. He testified that he can bring the said documents alongwith other relevant documents. He further testified that prior to acquisition, he was not running any business on the land in question, however, family business was going on in the land in question, which was being looked after by his father. He further testified that no rent was being paid for the use of said land. He admitted that no document prior to 12.04.2006 is on record which can show purchase/sale/income /expenditure /profit/loss of his business at the property in question. He further testified that the balance sheet for the financial year ending on 31.03.2006 is on record, which is dated 19.09.2006. He testified that he was carrying on manufacturing of household utensils on the land in question and has placed on record MCD license to run the said manufacturing unit. On 06.11.2018, his further cross-examination was deferred for want of documents, however, no documents were produced on 14.12.2018.
Case of Vijay Arora.
90. CW-13 Sh. Vijay Arora has stated in para no. 118 of his LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 55/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA evidence by way of affidavit that he was running a manufacturing unit from the property in question and because of complete acquisition of land, he had to remove all his movable and fixed assets from the property in question which included stocks, plants, machinery and ancillaries. He has further testified in para no. 119 that he had to make an expenditure of about Rs. 10 lacs towards loading, unloading, shifting and transportation charges etc. He has further claimed an amount of Rs.33.00 lacs on account of loss incurred on sale of plant and machinery; Rs. 20.00 lacs as loss suffered to stocks due to shifting; Rs. 12.00 lacs as salary and retrenchment expenses paid to the employees during the period of shifting; Rs. 15.00 lacs towards loss of profit from the business due to acquisition and thus claimed total amount of Rs.90.00 lacs under the Sub clause fourthly of Section 23 of the LA Act. He has further claimed an amount of Rs.15.00 lacs in para no. 120 of his evidence by way of his affidavit towards expenses, incidental to change of business premises under sub clause fifthly of L.A. Act.
91. During cross-examination CW-13, Sh. Vijay Arora deposed that he has not placed on record any document showing any expenses incurred on structure. He further testified that he has not placed any document regarding installation of lift on the land in question. He has also not placed on record any Bill /voucher / bank statement etc. to show expenses incurred upon displacement/shifting /loading/unloading/transportation of his factory from the land in question. He volunteered that he has placed on record the balance sheet for the year ending on 31.03.2007 showing the expenses incurred in shifting.
LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 56/67LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA
LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA
LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA
He testified that he started business around April 2000 but he has not placed any document to show that the business was in continuation from 2000 to 2005. He further testified that losses claimed by him in para no. 119 of evidence by way of affidavit are not shown in the balance sheet ending on 31.03.2006 as the same is shown in the balance sheet for the year ending on 31.03.2008. He further testified that all the three manufacturing units were separate units, however, the same is not on record. He admitted that no document prior to 12.04.2006 is on record which can show purchase/sale/income /expenditure /profit/loss of his business at the property in question. He volunteered that the balance sheet for the financial year ending on 31.03.2006 is on record, which is dated 19.09.2006. He testified that he was carrying on manufacturing of non-stick and household utensils on the land in question and has placed on record MCD license to run the said manufacturing unit. His further cross examination was deferred for want of documents. In cross- examination dated 14.12.2018, he has placed on record documents Ex. CW13/13 to Ex. CW13/18 and documents marked as Mark A-30 to A
-36.
Case of Ashwani Kumar
92. CW-13 Sh. Ashwani Kumar has stated in para no. 118 of his evidence by way of affidavit that he was running a manufacturing unit from the property in question and because of complete acquisition of land, he had to remove all his movables and fixed assets from the property in question which included stocks, plants, machinery and LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 57/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA ancillaries. He has further testified in para no. 119 that he had to make an expenditure of about Rs. 9.00 lacs towards loading, unloading, shifting and transportation charges etc. He has further claimed an amount of Rs.12.00 lacs on account of loss incurred on sale of plant and machinery; Rs. 10.00 lacs as loss suffered to stocks due to shifting; Rs. 9.5 lacs as salary and retrenchment expenses paid to the employees during the period of shifting; Rs. 12.00 lacs towards loss of profit from the business due to acquisition and thus claimed total amount of Rs.52.50 lacs under the Sub clause fourthly of Section 23 of the L.A. Act, 1894. He has further claimed an amount of Rs.15.00 lacs in para no. 120 of his evidence by way of his affidavit towards expenses, incidental to change of business premises under sub clause fifthly of L.A. Act, 1894.
93. During cross examination, CW-13 Sh. Ashwani Kumar deposed that he has not placed on record any document showing any expenses incurred on structure. He further testified that he has not placed any document regarding installation of lift on the land in question. He has also not placed on record any Bill /voucher / bank statement etc. to show expenses incurred upon displacement/shifting /loading/unloading/transportation of his factory from the land in question. He volunteered that he has placed on record the balance sheet for the year ending on 31.03.2007 showing the expenses incurred in shifting. He testified that he started business around April 2005. He further testified that losses claimed by him in para no. 119 of evidence by way of affidavit are not shown in the balance sheet ending on 31.03.2006 as LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 58/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA the same is shown in the balance sheet for the year ending on 31.03.2008, however, same is not on record but he can bring the same alongwith other relevant documents. He admitted that no document prior to 12.04.2006 is on record which can show purchase/sale/income /expenditure /profit/loss of his business at the property in question. He volunteered that the balance sheet for the financial year ending on 31.03.2006 is on record, which is dated 19.09.2006. He testified that he was carrying on manufacturing of pressure cooker and utensils on the land in question and has placed on record MCD license to run the said manufacturing unit. His further cross examination was deferred for want of documents. In cross-examination dated 14.12.2018, he has placed on record documents Ex. CW13/5 to Ex. CW13/7 and documents marked as A-28 to A-31.
94. Perusal of testimony of CW-13 in all the aforesaid petitions shows that the petitioners have not placed on record the inventory of plant and machinery as well as of stocks, which was available on 17.08.2006 i.e. date of possession. Further, the petitioners have not placed on record any document showing the labour incurred on removing the plant, machinery as well as stocks from the land in question and freight charges for the same. There is nothing on record to infer as to what was the fixed and moveable assets lying in the properties in question at the time of acquisition.
95. During the course of arguments, Ld. Counsel for the petitioners has relied upon auditor's report along with balance sheet as LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 59/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA on 31.03.2006 and auditor's report with balance sheet as on 31.03.2007. Needless to say, the balance sheet as on 31.03.2006 has no significance inasmuch as date of notification Under Section 4(1) of L.A. Act, 1894 is dated 12.04.2006. Further, perusal of balance sheet as on 31.03.2007 reflects the shifting charges and retrenchment expenses but it is not clear as to whether the said shifting charges are with respect to shifting of the plant, machinery and stocks from the properties in question. Moreover, no bills of shifting of the plant and machinery have been filed on record by the petitioners. Similarly, it is not clear whether the retrenchment expenses are on account of shifting of place of business. There is also nothing on record to show that whether the petitioners have infact shifted the place of business to any other place. It is also not proved on record whether any loss of income was due to change of place of business, if any.
96. In view of foregoing discussion, the court is not inclined to accept the claim of the petitioners under aforesaid subclauses fourthly and fifthly of section 23(1) of L.A. Act, 1894 inasmuch as there is no legally admissible and relevant evidence to support the said claims. Merely, audit reports cannot make the basis of considering the said claims as the said audit report is not accompanied by relevant supporting material namely bills/vouchers/bank statements etc. Further, it may be noted that even author of audit report was not examined by the Petitioners and Income Tax Returns for the relevant period were not filed on record. Hence, for want of any reliable evidence on record, this court is not inclined to grant the claims under the subclauses fourthly and LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 60/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA fifthly of section 23(1) of L.A. Act, 1894.
97. Under the clause sixthly of section 23(1) of L.A. Act, 1894, the claim of petitioners is that declaration under Section 6 of L.A. Act, 1894 was issued on 22.05.2006 and physical possession was taken on 17.08.2006 and thus 50% per annum appreciation in the value of land should have been awarded for a period of 87 days, which expired between the period of issuance of declaration under Section 6 and date of physical possession. In order to prove the same, CW13 has relied upon the auction notices issued by the DDA during the period of 2002 to 2008. In this regard, suffice it to state that the auction notices of the DDA are with respect to properties located at different locations of Delhi except auction notice dated 21.12.2006 Ex. CW9/3, which pertains to the vicinity of the properties in question and thus, other notices are not applicable to the present case. In the absence of any evidence regarding appreciation of land value, the claim under subclause sixthly of section 23(1) of L.A. Act, 1894 is disallowed.
98. With respect to interest awarded by LAC, it is submitted by Ld. Counsel for the petitioners that as per Section 34 of L.A. Act, 1894, interest has to be awarded from the date of taking possession till date of payment. It is further submitted that possession of properties in question was taken on 17.08.2006, whereas award was passed by the LAC on 31.12.2007 and in the award, the LAC has admitted calculating interest under Section 34 from the date of possession i.e. 17.08.2006 till date of award, however, LAC had wrongly taken date of award as 30.11.2007 LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 61/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA instead of 31.12.2007, which led to award of less interest for 31 days till the date of award.
99. Perusal of award shows that LAC has calculated the interest from 17.08.2006 to 30.11.2007 i.e. for one year and 106 days. The LAC has erred in mentioning the date of award as 30.11.2007 and accordingly, not awarded interest to the petitioners for 31 days for which they were entitled to. If one calculates the number of days from 17.08.2006 to 31.12.2007, same comes to one year and 137 days and thus, the applicants are entitled to interest for 31 days, in addition to period of one year and 106 days, in terms of Section 34 of L.A. Act, 1894.
100. Further, amount of compensation awarded by the LAC vide impugned award dated 31.12.2007 has not admittedly been paid to the petitioners. As per record, amount of compensation was deposited before Ld. Predecessor of this Court on 06.07.2009 Ex.CW8/1, and therefore, the petitioners would also be entitled to interest on the awarded compensation by the LAC from the date of award till the date of deposit in terms of Section 34 of L.A. Act, 1894.
101. Ld. Counsel for the respondent no.1 has pointed out during the course of arguments that Ms. Kanta Kumari petitioner in LAC No. 08/2016, Kanta Kumari Vs Union of India, had filed an application under Order 22 Rule 3 CPC along with other three petitioners, (sons of late Sh Jagdish Kumar Arora), who are remaining LRs of Late Sh.
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Jagdish Kumar Arora for seeking substitution as his LRs. He further submitted that the said application was disposed of vide order dated 06.10.2017 by Ld. Predecessor of this Court whereby only Kanta Kumari was allowed to continue the present petition. Ld. Counsel for the respondent no.1 has further argued that other legal heirs cannot claim the benefit of enhancement of compensation since there was no reference filed by them. In this regard, ld. Counsel for the petitioners has drawn the attention of this court to the judgment of Hon'ble Apex Court reported as Manu/SC/0436/1991, A. Viswanatha Pillai and ors Vs. Special Tehsildar for Land and Acquisition No. IV and ors. wherein the Hon'ble Apex Court has observed as under:-
"It is settled law that one of the co-owners can file a suit and recover the property against strangers and the decree would enure to all the co-owners. It is equally settled law that no co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand he has right, title and interest in every part and parcel of the joint property or coparcenary under Hindu Law by all the coparceners. In Kanta Goel v. B.P. Pathak & Ors,. [1977] 3 S.C.R. 4 12, this Court upheld an application by one of the co-owners for eviction of a tenant for personal occupation of the co-owners as being maintainable. The same view was reiterated in Sri Ram Pasricha v. Jagannath & Ors., [1977]1 S.C.R. 395 and Pal Singh v. Sunder Singh (dead) by Lrs. & Ors., [1989] 1 S.C.R. 67. A co-owner is as much an owner of the entire property as a sole owner of the property. It is not correct to say that a co- owner's property was not its own. He owns several parts of the composite property along- with others and it cannot be said that he is only a part owner or a fractional owner in the property. That position will undergo a change only when partition takes place and division was effected by metes and bounds. Therefore, a co- owner of the property LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 63/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA is an owner of the property acquired but 'entitled to receive compensation pro-rata. The State would plead no waiver nor omission by other co-owners to seek reference nor disentitle them to an award to the extent of their legal entitlement when in law they are entitled to. Since the acquired property being the ancestral coparcenary and continued to be kept in common among the brothers and the income derived therein was being shared in proportion of their shares by all the brothers it remained as joint property. As co-owners everyone is entitled to 1/4 share therein. It was also laid by this Court in a recent judgment in Ram Kumar & Ors. v. Union of India & Ors., [1991] 1 SCR 649 that it is the duty of the Collector to send full information of the survey numbers under acquisition to the court and make reference under section 18 and failure thereof is illegal. The same ratio would apply to the facts in this case as well. When one of the co-owner or coparceners made a statement in his reference application that himself and his brothers are dissatisfied with the award made by the Collector and that they are entitled to higher compensation, it would be clear that he was making a request, though not expressly stated so but by necessary implication that he was acting on his behalf and on behalf of his other co-owners or coparceners and was seeking a reference on behalf of other co-owners as well. What was acquired was their totality of right, title and interest in the acquired property and when the reference was made in respect thereof under section 18 they are equally entitled to receive compensation pro-rata as per their shares. The courts below committed manifest error in refusing to pass an award and payment thereof to the appellants merely on the ground that there was no mention in this regard in the reference application or two of them sought reference in respect of two awards and the last one made no attempt in their behalf. The claimants are entitled to payment of the enhanced award by the Civil Court pro-rata of their 1/4 share each with 15 per cent solatium and 4 per cent interest as awarded by the Civil Court. The appeals are LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 64/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA accordingly allowed with costs of this Court."
102. In view of ratio of aforesaid judgment, non-substitution of other LRs of late Sh. Jagdish Kumar Arora in LAC no. 8/16 "Kanta Kumari vs. Union of India & Ors." would not come in their way in claiming the awarded compensation alongwith enhancement and other statutory benefits.
103. Further, perusal of aforesaid order dated 06.10.2017 shows that the ld. Predecessor of this Court had observed that the petitioner Kanta Kumari would not be entitled to any interest on any enhancement for the period of delay of 535 days in preferring the application under Order 22 Rule 3 CPC. In view thereof, the interest for a period of 535 days is not payable in LAC No.8/16, Kanta Kumari vs. Union of India & Anr.
RELIEF-
104. In view of the findings on issue no. 1 and 2, reference is answered in favour of the petitioners and against the respondents in the following manner:-
a) The market value of land in question is enhanced from Rs. 6,450/- per sq mtr to Rs. 48,000/- per sq mtr and accordingly, LAC is directed to rework the same;
b) The cost index of 236 be taken instead of 123 in arriving at structural value of the properties in question and accordingly, LAC is directed to rework the cost of structure by applying the cost index of 236;LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 65/67
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LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA
c) The LAC is directed to rework the component of interest as per directions given in aforesaid paras 99 & 100.
d) In addition, the petitioner would also be entitled to all statutory benefits, being 30% solatium on the market value in view of the compulsory nature of acquisition as per section 23 (2) of the L.A.Act, 1894 and an additional amount of 12% p.a. on the market value as provided under Section 23 (1A) of the L.A. Act,1894. The petitioners would also be entitled to interest on the enhanced compensation @ 9% per annum from the date of dispossession till expiry of one year and thereafter @ 15% per annum till payment.
e) The observations in paras 102 & 103 regarding LAC No. 08/2016 'Kanta Kumari vs. Union of India & Anr.' would be considered by him while paying enhanced compensation.
(f) As the compensation has been enhanced and reference succeeds, the petitions are allowed with cost of Rs. 11,000/- each.
105. Reference is answered accordingly. This Court also places on record appreciation for the hard work done and assistance provided by the Ld. Counsels for the petitioner and respondent no. 1 as well as SO (L) of respondent no. 2 especially during these days of Virtual hearing, on account of ongoing Covid Pandemic.
106. Copy of this judgment be sent to the concerned LAC for LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 66/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA information and necessary compliance within three months of its receipt. File be consigned to Record Room.
107. A copy of the judgment be placed in the file of LAC No. 06/16 Vijay Kumar Arora vs. Union of India, LAC No. 08/16 Kanta Kumari Arora vs. Union of India and LAC No. 09/16 Amit Kumar Arora vs. Union Digitally signed of India MANJUSHA by MANJUSHA WADHWA WADHWA Date: 2020.12.15 17:01:25 +0530 (MANJUSHA WADHWA) Addl District Judge-02, Shahdara Karkardooma Courts, Delhi.
(Announced on 15.12.2020 through CISCO WEBEX APP) LAC No. 6/16 VIJAY KUMAR ARORA Vs. UNION OF INDIA Page No. 67/67 LAC No. 7/16 ASHWANI KUMAR Vs. UNION OF INDIA LAC No. 8/16 KANTA KUMARI ARORA Vs. UNION OF INDIA LAC No. 9/16 AMIT KUMAR ARORA Vs. UNION OF INDIA