Delhi District Court
Rekha Gupta vs Union Of India on 15 May, 2010
IN THE COURT OF SH. SANJEEV KUMAR:
ADDITIONAL DISTRICT JUDGE : ROHINI COURTS : DELHI
LAC No. 99A/09
IN RE :
REKHA GUPTA
D/O SH. SHRI BHAGWAN GUPTA
R/O 2116, BAWANA ROAD,
NARELA, DELHI110040
...... PETITIONER
Versus
1. UNION OF INDIA
LAND ACQUISITION COLLECTOR,
NORTH WEST,
DELHI.
2. DELHI STATE INDUSTRIAL DEVELOPMENT CORPORATION
THROUGH ITS MANAGING DIRECTOR/CHAIRMAN,
N BOMBAY LIFE BUILDING, CONNAUGHT PLACE
NEW DELHI
........RESPONDENTS
Award No. 24/200304
Village NARELA
Date of Award/ Date of
Announcement of Award 29.01.2004
Notification U/S 4 F.11(6)/99/L&B/LA/1410
dt. 02.5.2001
Notification U/s 6 F.11 (16)/99/L&B/LA/1422
dt. 23.4.2002
Date of Receipt of Reference : 27.10.2006
Date of Arguments : 26.04.2010
Date of Decision: 15.05.2010
REFERENCE PETITION UNDER SECTION 18 OF THE
LAND ACQUISITION ACT 1894
J U D G M E N T
1
1. A large tract of Land measuring 1140 bigha 5 biswa 8 biswani of village Narela, Delhi, was acquired by the Govt. for a public purpose namely "development of Sector 1, 2,3 & 4, Narela Phase 1/1 under Planned Development of Delhi". Notification under Section 4 of The Land Acquisition Act, 1894 (hereinafter referred to as 'LA Act') was issued on 02.05.2001. Declaration under Section 6 was made on 23.4.2002; Thereafter, Award bearing no. 24/0304 was announced by Land Acquisition Collector (hereinafter referred to as LAC) on 29.01.2004. The LAC determined the market price of the acquired land as Rs.15,70,000/ per acre for land falling in Block 'A' and Rs.14,00,000/ per acre for land falling in 'B' Block. 1.1 The petitioner being dissatisfied with the market value determined by the LAC, filed the present petition u/s 18 of the LA Act, seeking reference to this court. The Land Acquisition Collector forwarded the same to this court, for adjudication.
2. The brief facts giving rise to the present reference petition are that petitioner is the owner/bhumidar of the land bearing Khasra no.86//4(4
16), measuring 4 Bighas 16 Biswas, situated within the Revenue Estate of Village Narela, Delhi (the said land). The said land was acquired vide notification dated 02.05.2001. In view of the urgency of the scheme the provision of section 17 (1) of the act were also made applicable. The declaration u/s 6 of the LA Act was made vide notification dated 23.04.02 ; The LAC granted the compensation viz. Rs.15,70,00 0/ per acre for land falling in Block 'A' and Rs.14,00,000/ per acre for land 2 falling in 'B' Block. Land of the petitioner was placed in category 'B', thus was granted compensation @ Rs.14,00,000 per acre.
3. The petitioner has challenged the said award on the following grounds :
i. that LAC has grossly erred in placing the land in 'B' category and had not adopted the correct method of valuation and determined the market value on the basis of policy of the Government of NCT, fixing indicative price of the agricultural land @ Rs.15,70 lac for the purposes of acquisition in the entire Delhi whereas price of land should have been assessed considering the situation and potentiality of land;
ii. that LAC has failed to consider the sale deed furnished by the petitioner for the land sold in vicinity @ Rs.26,75,000/ ; iii. that LAC has wrongly put his land in category B land, whereas land of the petitioner was levelled one and the petitioner has never removed any earth from his holding for any purpose and had awarded the compensation even less than the minimum rate prescribed by the govt.;
iv. that while assessing the rate of compensation LAC has not considered the claim of the petition u/s 9 & 10 of the LA Act v. that LAC has not given compensation of well equipped farm house and boundary walls
4. The petitioner has demanded the compensation of the acquired land at the rate of Rs.10,000/ per sq. yards. He has also claimed compensation of Rs.2,00,000/ for Tube well, Rs. 1,00,000/ for agriculture implements and compensation for standing crops @ Rs.10,000 per bigha.
3
5. Initially Union of India (UOI) was only cited as respondent but my Ld. Predecessor vide his order dated 18.01.2007 also impleaded Delhi State Industrial Development Corporation (hereinafter referred as DSIDC) as respondent.
6. Both the respondents have filed their written statement, in which they had taken many objections to the claim filed by the petitioners.
7. In the preliminary objections respondent no. 1 UOI has stated that DLR Act is applicable to the land in dispute and petitioner is not entitle for construction or structure which is raised without the sanction of law. It is further submitted that LAC has assessed the market value of land as per rates prevailing during the corresponding period for different categories of land besides other statutory benefits.
8. DSIDC in its reply/WS, has also contended that LAC has passed the award taking into consideration the market value of the land and there was no structure, trees, well and tubewell on the land.
9. During the admissiondenial of documents, petitioner has admitted statement u/s 19 of Land Acquisition Act sent by LAC.
10. After the completion of pleadings of the parties, the following issues were framed :
1. Whether the petitioner is entitled to any enhancement in compensation. If so, to what amount ?
4
2. Relief.
10. In support of her claim, the petitioner has examined 6 witnesses. Petitioner has examined herself (no PW given) and tendered her evidence by way of affidavit, (no exhibit given). Besides this she has proved the photocopy of sale deed of village Mamurpur (Narela) Delhi as Mark A. PW2 Shyambir, patwari, LAC OFfice, North West has brought the award file of award no. 24/200304.
PW3 Ghanshayam, Halka Patwari has proved the Shijra of village Narela as Ex. PW3/1 and khatoni of village Narela as Ex.PW3/2. PW4 Om Prakash was the official from Office of SubRegistrar, Pitampura and proved the sale deed of village Mamurpur, which was earlier marked as Mark A, as Ex. PW4/1.
PW5 Sh. Tilak Raj Sharma official from DDA, Land Sales Branch (Residential), Vikas Sadan, INA, Delhi has proved the notification dated 09.05.2000 with respect to predetermined rate in respect of land in Dwarka, Narela and Rohini for the year 200001 as Ex. PW5/1 and notification dated 04.04.2002 for the year 20022003 as Ex. PW5/2 and notification dated 27.02.2003 for the year 200102 as Ex. PW5/3. PW6 Naresh Kumar official of L & DO, Nirman Bhawan, Delhi has th proved the notification no.J22011/4/95LD dated 16 April 1999, which 5 is schedule of market rates alongwith market rates of different localities of Delhi as Ex. PW6/1.
PW 7 Kishan Chand UDC, DDA Commercial Land Brnach has proved the record of auction of commercial plot for the year 2004 to 2008 of Narela Zone as Ex. PW7/1.
11. On the other hand respondent had not lead any evidence and only tendered the copy of the award as Ex. R1 and also rely upon the evidence led in case titled as Prem Singh Vs. UOI LAC No. 69A/09.
12. I have heard the Ld. Counsel for the parties and have also carefully considered the record. My issuewise findings are given hereinafter.
13. FINDINGS ON ISSUE NO. 1 : 13.1 It is well settled fact that compensation payable for land acquired by the government cannot be ascertained with mathematically accuracy and certain guess work has to be made and there are various factors which can be taken into account while ascertaining the market value of the land such as:
1. The opinion of the valuer or experts
2. The price paid of the land within the reasonable time in bonafide purchase of the acquired land and of the land which is adjacent or near by to the acquired land having similar potentiality.
3. Capacity of land generating income through agricultural yield.
The land situated near by developed area which make the land capable for using the land for residential, commercial as well as 6 agricultural purpose.
4. No particular criteria is perfect for every kind of land to determine the market value and it depends upon the facts and circumstances of each case as to which criteria is to be adopted.
5. The onus is on the petitioner to prove that his land is capable of fetching higher price only what LAC has awarded. 13.2 LAC has determined the market value of the category 'A' land on the basis of the minimum rate of agricultural land fixed by Govt. through its policy dated 09.08.2001 which was applicable from 01.04.2001 and determined the market value of land at the rate of Rs.15,70,000/ per acre. The LAC has observed "that in the absence of any documentary evidence on record, I find that Rs.15,70,000/ per acre is most reasonable price on 02.05.01."
Petitioner being not satisfied with said award, has contended that the criteria adopted by LAC for fixing the land rate on the basis of Government policy is not appropriate and it should be determined on the basis of potentiality of the land and on the basis of sale deeds which have been executed for the land and around the land of the petitioner and the petitioner should have been awarded market value of Rs.10,000/ per sq. yards. 13.3 The petitioner has contended that petitioner was an agriculturist.
To prove this petitioner has relied upon her evidence by way of 7 affidavit (no exhibit given). In her examination in chief by way of affidavit she has deposed that she was in cultivatory possession of the land. In her cross examination she has stated that she was cultivating the land and had employed labours for agricultural work, but she has not produced any document to prove that what was the total produce from the land and his income from the land therefore, in the absence of said evidence it would not be possible to decide the market value on the basis of agricultural yield. Hence, petitioner has failed to prove her case that she is entitle to enhancement in compensation on the basis of agricultural yield.
13.4 Ld. Counsel for the petitioner Sh. N.S. Negi has argued that land in question has great potentiality, which the LAC has not taken into consideration while determining the market value of the land. He has argued that land of the village Narela & surrounding land of adjoining village like village Bhorgarh, Mamurpur, Holambi Kalan, Kureni etc. which was acquired through various award DDA has developed Narela residential area on the said land while DSIDC has developed the Narela Industrial plots due to which potentiality of land has increased rapidly and therefore, petitioner deserve much higher market price. To prove the location of land petitioner's counsel has relied upon the testimony of PW3 Ghanshyam Patwari who has proved Asks Sizra of village Ex. PW3/1. He has deposed that land of the Narela is bounded as under:
8 to the North is : Village Saboli which falls in Haryana, Mamurpur falls in Delhi to the South is : Village Kureni and Singhola to the East is : Village Singhola and Mamurpur to the West is : Village Banker and Bhorgarh Further the witness has deposed that all facilities like water, electricity etc. are available in the village Abadi in Narela and there was a government school and private school in village Narela.
13.5 Ld. Counsel for the petitioner has further submitted that DDA and DSIDC has sold the plots in the Narela residential area and Narela Industrial area at much higher rate. To prove this he has relied upon the testimony of PW5 Sh. Tilak Raj Sharma, UDC Land Sales Branch (Residential) DDA, who has proved the predetermined rates in respect of various land used in respect of various land used in Dwarka, Narela and Rohini of year 200001 to 200203, which is Ex. PW5/3. As per the said rates, rates of Narela area are as follows:
Category 200001 200102 200203
Land for CGHS 3117 3777 3966
Alternative Plots 2765 3233 3395
DDA Housing Scheme
SFS 3117 3777 3966
MIG 2597 3147 3305
LIG 1558 1889 1984
9
EWS 1040 1259 1322
Indl. Plots
JJ Squatters 1040 per 20.50 lac 21.53 lac
(Resettlement) sq. meter per acre per acre
Note: rate are in rupees
13.6 Ld. Counsel has further relied upon the testimony of PW6 who has produced the rates of auction of commercial/residential plots by the DDA in the year 2004 to 2008 in the Narela Zone shown as Ex. PW7/1. Ld. Counsel has stated from the perusal of this document it appear that a commercial plot of 540 sq. meter in Narela was auctioned @ Rs.32.40 Lacs. 13.7 Ld. Counsel has further argued that Ministry of Urban Affairs and Govt. of India has prepared a schedule of market rates of the year land in Delhi. As per which market rate of land was sold at a very higher price than the LAC has awarded. To prove this he has relied upon the testimony of PW6 Naresh Kumar, who has produced schedule of market rate as Ex. PW6/1. Ld. Counsel has contended that minimum market rate in Delhi fixed Ministry of Urban Affairs as Rs.2805 sq. per meter for East Delhi, whereas for Azadpur is Rs.5830/ per sq. meter for residential area. Ld. Counsel has contended that from his evidence it is proved that DDA and DSIDC was selling the plots at much higher rates and LAC should have taken into consideration these rates while determining the market value of petitioner's land and he can make suitable deduction from these rates for cost of development 10 of the land and no market rate would come to less than Rs.10,000 per sq. yards.
13.8 On the other hand Ld. Counsel for the respondent has argued that land of the petitioner was totally agricultural land and the same cannot be used for other purpose except for agricultural, hence, petitioner cannot be awarded the rate at which DDA and DSIDC has been allotting land to various plot holders. In support of this contention he has relied upon the judgment Lal Chand Vs. UOI VII (2009), SLT 439 and Ranvir Singh Vs. UOI 123 (2005) DLT 252 (SC). Ld. Counsel has further argued that this court in Prem Singh Vs. UOI LAC No. 69A/09 has already decided the market value of the land of village Narela acquired through the same notification u/s 4 as Rs.15,85,000/ per acre for category 'A' land.
13.9 I have considered the arguments and gone through the evidence.
There is no doubt that acquired land is situated in the near the Industrial area of Narela and Narela residential colony developed by DDA in Narela. This is also not in dispute that DDA & DSIDC has allotted plots at much higher rates. But question is can the petitioner be given same rate at which DDA and DSIDC have selling their plots. Hon'ble justice Ravinderan in judgment Lal Chand Vs. UOI VII (2009) SLT 439 decided on 12.08.2009 while dealing with the similar issue has held that: "7. On careful consideration, we are of the view that 11 such allotment rates of plots adopted by Development Authorities like DDA cannot form the basis for award of compensation for acquisition of undeveloped lands for several reasons. Firstly, market value has to be determined with reference to large tracts of undeveloped agricultural lands in a rural area, whereas the allotment rates of development authorities are with reference to small plots in a developed layout falling within Urbana. Secondly, DDA and other statutory authorities adopt different rates for plots in the same area with reference to the economic capacity of th buyer, making it difficult to ascertain the real market value, whereas market value determination for acquisitions is uniform and does not depend upon the economic status of th eland loser. Thirdly, we are concerned with market value of free hold land, whereas the allotment "rates" in the DDA Brochure refer to the initial premium payable on allotment of plots on leasehold basis. We may elaborate on these three factors.
8. First Factor: The percentage of 'deduction of development' to be made to arrive at the market value of large tracts of undeveloped agricultural land (with potential for development), with reference to the sale price of small developed plots, varies between 20% to 75% of the price of such developed plots the percentage depending upon the nature of development of the layout in which the exemplar plots are situated. The 'deduction for development' consists of two components. The first is with reference to the area required to be utilised for development works and the second is the cost of the development works. For example if a residential layout is formed by DDA or similar statutory authority, it may utilise around 40% of the land area in the layout, for roads, drains, parks, play grounds and civic amenities (community facilities) etc. The Development Authority will also incur considerable expenditure for development of undeveloped land into a developed layout, which includes the cost of levelling the land, cost of providing 12 roads, underground drainage and sewage facilities, laying waterlines, electricity lines and developing parks and civil amenities, which would be about 35% of the value of the developed plot. The two factors taken together would be the 'deduction for development' and can account for as much as 75% of the cost of developed plot. On the other hand, if the residential plot is in an unauthorised private residential layout, the percentage of 'deduction for development' may be far less. This because in an unauthorised layouts, usually no land will be set apart for parks, play ground and community facilities. Even if any land is set apart, it is likely to be minimal. The roads and drain will also be narrower, just adequate or movement of vehicles. The amount spent on development work would also be comparatively less and minimal. Thus the deduction on account of the two factors in respect of plots in unauthorised layouts, would be only about 20% plus 20% in all 40% as against 75% in regard to DDA plots. The 'deduction for development' with references to prices of plots in authorised private residential layouts may range between 50% to 65 % depending upon the standards and quality of the layout. The position with reference to industrial layout will be different. As the industrial plots will be large (say of the size of one or two acres or more as contrasted with size of residential plots measuring 100 sq. me to 200 sq.m) and as there will be very limited civic amenities and no play grounds, the area to be set apart for development (for roads, park, play grounds and civic amenities) will be far less; and the cost to be incurred for development will also be marginally less, with the result the deduction to be made from the cost of a industrial plot may range only between 45% and 55% as contrasted from 65 to 75% for residential plots. If the acquired land is in a semideveloped urban area, and not an undeveloped rural area, then the deduction for development may be as much less, that is, as little as 25% to 40% as some basic infrastructure will already be available. (Note: The percentages mentioned above 13 are tentative standards and subject to proof of the contrary).
9. Therefore the deduction for the 'development factor' to be made with reference to the price of a small plot in a developed layout, to arrive at the cost of undeveloped land, will be for more than the deduction with reference to the price of a small plot in an unauthorized private layout or an industrial layout. It is also well known that the development cost incurred by statutory agencies is much higher than the cost incurred by private developers, having regard to higher overheads and expenditure. Even among the layouts formed by DDA, the percentage of land utilized for roads, civic amenities, parks and play grounds may vary with reference to the nature of layout - whether it is residential, residential cum commercial or industrial; and even among residential layouts, the percentage will differ having regard to the size of the plots, width of the roads, extent of community facilities, parks and play grounds provided. Some of the layouts formed by statutory Development Authorities may have large areas earmarked for water/sewage treatment plants, water tanks, electrical substations, etc. in addition to the usual areas earmarked for roads, drains, parks, play grounds and community/civic amenities. The purpose of the aforesaid examples is only to show that the 'deduction of development' factor is a variable percentage and the range of percentage itself being very wide from 20% to 75%.
10. Second factor: DDA and other statutory development authorities adopt different rates for allotment, plots in the same layout, depending upon the economic status of the allottees, classifying them as high income group, middle income group, low income group, and economically weaker sections. As a consequence, in the same layout plots may be earmarked for persons belonging to economically weaker Section at a price/premium of Rs.100/ sq.m., whereas the price/premium charged may be Rs.150/ per sq. m. for members of low income group, Rs.200/ 14 per sq. m. for person belonging to middle income group and Rs.250/ per sq. m. for persons belonging to High income groups. The ratio of sites in a layout reserved for HIG, MIG, LIG and EWS may also vary. All these varying factors reflect in the rates for allotment. It will be illogical to take the average of the allotment rates, as the 'market value' of those plots, does not depend upon the cost incurred by DDA statutory authority, but upon the paying capacity of the applicants for allotment.
11. Third factors: Some development authorities allot plots on freehold basis, that is by way of absolute sale. Some development authorities like DDA allot plots on leasehold basis. Some have premium which is almost equal to sale price, with a nominal annual rent, whereas others have lesser premium, and more substantial annual rent. There are standard methods for determining the annual rental value with reference to the value of a freehold property. There are also standard methods for determining the value of freehold (ownership) rights with reference to the annual rental income in regular leases. But it is very difficult to arrive at the market value of a freehold property with reference to the premium for a leasehold plot allotted by DDA. As the period of lease is long, the rent is very nominal, sometimes there is a tendency among public to equate the lease premium rate (allotment price) charged by DDA, as beign equal to the market value of the property. However, in view of the difficulties referred to above, it is not safe or advisable to rely upon the allotment rates/auction rates in regard to the plots formed by DDA in a developed layout, in determining the market value of the adjoining undeveloped freehold lands. The DDA brochure price has therefore, to be excluded as being not relevant." In Laxmi Narain Bansal etc. Vs. UOI, RFA No. 677/1994 decided on 30.09.2008 and Division Bench of the 15 High Court of Delhi while relying upon judgment Ranvir Singh Vs. UOI (2005) 12 (SCC) 59 Hon'ble Judge has observed that the judgment of Ranvir Singh culled out the principles as follows:
a) Market value of the acquired land has to be assessed not only having regard to the comparable sales method but also having regard to the size of the land or other features thereof and several other relevant factors.
b) The market value of fully developed land cannot be compared with a wholly undeveloped land and even when they are adjoining or situated at a little distance.
While laying down this principle, the court commented upon the incorrect approach by the High Court to the contrary in the following words.
"25 The High Court without having regard to different sizes and different categories of land separately took into consideration the value of 48 sq.m. Of land at the rate of Rs.150 per sq. m. It keeping in view the fact that the Delhi Development Authority sought to create leasehold right whereas upon acquisition of 16 land a freehold rights would be created, multiplied the said figure by two and arrived at a conclusion that the market value of 1 sq. m. of land at Rohini would be Rs.300/. The means figure thereof was taken at Rs.200/ per sq. m. as wholesale price of freehold plots in a developed condition. From the said Rs.200, 60% had been deducted towards costs of development and considering the large extent of land, the retail market price was worked out at Rs.80 per sq. m.
26. While adopting the said method, in our opinion, the High Court committed manifest errors. The market value of a fully developed land cannot be compared with a wholly underdeveloped land although they may be adjoining or situated at a little distance. For determining the market value it is trite, the nature of the lands plays an important role."
c) What price is fetched after full development cannot be the basis for fixing compensation in respect of the land which was agricultural (reliance was placed on Bhim Singh Vs. State of Haryana, (2003) 10 SCC 529).
17
d) For determining the market value, the sale deeds pertaining to portion of lands which are subject to acquisition would be the most relevant piece of evidence for assessing the market value of the acquired lands. Even market conditions prevailing as on the date of notification are relevant.
e) Sale price in respect of small piece of land cannot be the basis for determination of the market value of a large stretch of land, isolated deed of sale showing a very high price cannot be the sole basis for determining the market value. The court referred to the earlier judgment in the case of Union of India Vs. Ram Phool (2003) 10 SCC 167, wherein the judgment of this court granting compensation on the basis of sale price in respect of a small piece of land was set aside observing as under:
"6...It has been held in a catena of decision of this Court that the sale price in respect of a small bit of transaction would not be the determinative factor for deciding the market value of a vast stretch of land. As has been stated earlier, the extent of land acquired in the case in hand i.e. 5484 bighas. In that view of the matter, we have no hesitation to come to 18 the conclusion that the High Court has wholly erred in relying upon Exhibit A1 in determining the market value of the acquired land extending to 5484 bighas. Since the onus is on the claimant to lead evidence on the determination of market value and if Exhibit A1, is taken out of consideration, then there is no residue of evidence on which the determination made by the High court enhancing the compensation awarded by the Reference Court should be sustained."
f) A judgment of Award determining the amount of compensation is not conclusive. It would merely be a piece of evidence. There cannot be any fixed criteria for determining the increase in the value of land at a fixed rate.
g) It was not necessary that the value of the freehold lands would be double the value of the leasehold lands. There has to be some basis for such a conclusion. This observation was made while commenting upon the perpetual lease deed executed by the DDA in respect of Rohini itself, after the development, as is clear from para 28 of the judgment, which reads as under:
19 "28. The High Court did not consider any relevant criteria on the basis whereof it could come to the conclusion that the value of the freehold lands would be double the value of the leasehold lands. The fact that in terms of the brochure the leasehold was to be perpetual one and the ground rent payable thereof was absolutely nomina being Re.1 per plot per annum for the first five years and thereafter at the rate 2 ½% of the total amount of premium, which was to be enhanced only after every 30 years, was relevant factor which should have been taken into consideration for arriving at a finding in that behalf. It is worth noting that the terms and conditions were set out for sale by the Delhi Development Authority on behalf of the President of India of perpetual leasehold rights in the residential plots under the Rohini Scheme.
29. A large amount of money was spent for development of Rohini over a period of 20 years. A large area has been earmarked for schools, hospitals, community halls, etc. May other advantages were also provided. In law it may be perceived that the scheme floated by DDA may not be viable and as such the 20 possibility of reduction of the rate at a future date could not be ruled out."
In the judgment Lal Chand Vs. UOI Hon'ble Supreme Court has further held that schedule market rates determined by the government also cannot be relied upon to determine the market valued as these rates are only for the purpose of levying stamp duty. Thus in the light of the above judgment I am of the view that rate on which DSIDC or DDA is selling the plot or market rate determined by the Government for the purpose of stamp duty for residential and commercial area cannot be basis for determining the market value of underdeveloped agricultural land. In the light of above said judgment, I held that land rate at which was fixed by DDA or DSIDC for allotting plot cannot be given to petitioner for his underdeveloped agricultural land.
Market value of the land on the basis of sale deeds
14. What should be the test of determining the market rate of land. The best method to determine the market value of the land is prevailing prices of sale and purchases between willing vendee & willing vender under normal circumstances. In Special Deputy Collector & Another Vs. Karra Sambasine Rao & Others AIR 1997 SC 2625 Supreme Court held that:
21 "the acid test would be whether a hypothetical willing vendor would offer the land and a willing purchaser in normal human condition would be willing to buy as a prudent man in normal conditions prevailing in the open market in the locality in which the acquired lands are situated as on the date of the notification under section 4 (1) of the Act. 14.1 Ld. counsel for the petitioner has argued that land in the adjacent village has been sold at much higher rate. To prove this he has relied upon the sale deed of village Mamurpur Ex. PW 4/1 which pertains to the village Mamurpur of 4 bigha 16 biswas for an amount of Rs.26,75,000/ dated 27.03.2000. Ld. Counsel has contended that though this sale deed are not of same village, but it is of adjacent village, which is at a distance of just few acre and court can take guidance from the sale deed of adjoining village while determining the market value. He has argued that market value comes around Rs.28,89,000/ per acre after adding the amount of stamp duty. and even if 30% deduction is made, on account of development of land cost of land of petitioner would not be less than Rs.20 lacs. Thus petitioner is entitled to atleast this much enhancement in market value. 14.2 On the other hand Ld. Counsel for the respondents have argued that when the sale deed of same village is available then the sale deed of adjoining village cannot be looked upon. He has relied upon the judgment titled as Kanwar Singh Vs. UOI (1998) 8 SCC 22 136 where in Hon'ble Supreme Court has held that :
"generally there would be different situation and potentiality of land situated in the different village unless it is prove that the situation and potentiality of land in two different villages are same".
Ld. Counsel for the respondents have also relied upon sale deed th proved in Prem Singh case (supra) executed on 4 December 2001 by one Sumer Singh in favour of on Mahender Singh of 8 bigha and 10/1/2 biswas land situated in the revenue estate of village Narela for a sum of Rs.13,60,000/ which would come around Rs.7,65,747 per acre. Ld. Counsel for UOI has argued that this sale deed pertained to the same village and though being executed after the date of notification which clearly shows that market value of the land was much less than what the LAC has awarded to the petitioner of his land even after 8 months of notification u/s 4 of the LA Act.
14.3 I have perused the sale deeds relied upon by both the parties.
Though petitioner has placed sale deed of village Mamurpur. This land has been purchased by vendee i.e. Radha Swami Satsang, which is prima facie a religious Trust. Therefore, purpose of purchasing land definitely would not be agricultural purpose as they are not going to cultivate the land, rather the land have been purchased for religious purpose.
23 Hence, on the basis of sale instances of village Mamurpur, in my view, would not be proper to determine the land rate as it does not appear to be a normal transaction made by a normal buyer in normal condition. Even otherwise, if we rely upon this sale deed, price is Rs.26,75,000 or Rs.28,00,000 after adding the stamp duty. If fifty percent is deducted out of the said amount for development of Road, Park, drainage, etc. as cost of development, it would at the most come to Rs.14,00,000 lac per acre and the market rate would be less then Rs.15,70,000 (Fifteen Lac Seventy Thousand) which was awarded by LAC. To support my this view I rely upon judgment Land Acquisition Officer, Kanmarapally and other 2007(12)SCC334 where the agricultural land was acquired and sale deed in respect of lal dora land was produced in evidence to show the market value, the court opined that while comparing the developed land with agricultural land, deduction @ 53% of the sale price should be made, which is clear from the following observation: "The evidence on record shows that the acquired lands were agricultural lands. Obviously their valuation would differ to a considerable value extent from the land used for house site. In such a case necessary deduction for the extent of land acquired for the formation of roads and other civic amenities, expenses of development of the 24 sites by laying on road, drain severs, water and electricity lines and the interest on the outlays for the period of determent of the realisation of the price, the profits on the venture etc. are to be made. (See Administration General of WB Vs. Collection Varanasi (1988) 2 SCC 150 ). In Brige Sahib Singh Lalha Vs. Amritsar Improvement Trust (1982) 1 SCC 419 the deduction of such development was taken as 53%." From this statement relied upon by petitioner himself, it is proved beyond doubt that land is not being used for agricultural purpose and being used for residential purpose, whereas petitioner's land as per his own admission is an agriculture land and it is also know fact that legally an agricultural land cannot be used for non agricultural purpose without permission. Thus land under the sale deed cannot be compared with the land of petitioner to determine market value as same is not agricultural land. Hence, in my view sale deed relied upon by the petitioner are not of much help to petitioner for his claim for enhancement of market value.
14.4 In view of the above, I hold that petitioner has failed to prove his case for enhancement of market value @ Rs.10,000/ per sq. yards on the basis of sale deed relied upon by him.
25
15. Another ground which Ld. Counsel for the petitioner has taken for enhancement of compensation is that land rate should be determined on the basis of grant of increase at 12% compounded annually on the rate determined with regard tot he land of Narela acquired through earlier Award. Ld. Counsel Sh. Deepak Khosla has argued that land of the village Narela was earlier acquired in the year 1963 vide notification u/s 4 dated 30.10.1963 with other villages like Kureni, Mamurpur, for the purpose of development of Narela Township where in Hon'ble Supreme Court has finally determined the market value @ Rs.18,750/ per bigha & if progressive increase @ 12% is allowed on the said amount from year 1963 than it would come to Rs.10,77,999 per bigha. Ld. Counsel has relied upon judgment Bedi Ram Vs, UOI 93 (2001) DLT 156 DB,UOI Vs. Amar Singh RFA No.464/88 dt. 07.02.2003, Jai Lal Vs. UI 94 (2001) DLT 429 in support of this contention.
16. On the other hand Ld. Counsel for the UOI has argued that progressive increase cannot be allowed as it cannot be said that all time land rate has been increased at same pace. Sometime land rate has been increased and some time it has fallen. He has further argued that government while determining minimum market value of agricultural land has already taken into account, the increase in the market rate.
26
17. I do not find any force in the contention of the petitioner's counsel that petitioner should be given 12% progressive increase on the rate which was determined by the Hon'ble Supreme Court for the land of village Narela acquired in the year 1963. Petitioner has himself placed on record UOI Vs. Amar Singh RFA No. 464/88 dated 07.02.2003 which he exhibited as PW1/6. In the said judgment Hon'ble High Court, while determining the land rate of village Bhorgarh which was acquired vide notification under section 4 of the Act on 25.10.1979 has discussed Bedi Ram Vs. UOI & Jailal Vs. UOI 94 (2001) DLT 429 and held that "in Jailal case progressive increase year by year was resorted to because of the reason that the land used had already changed. In the instant case land used has not been changed. As such instead of following the said method we are of the view that the principle laid down in Bedi Ram case (Supra) could be applied in this case allowing increase at a flat rate of 6% every year from 1963 to 1973 and from 1973 to 1974 @ 10% Per Annum on Rs.16750 in order to arrive at fair market value the amount thus would work out at Rs.38,305 or say Rs.38,300/ per bigha. If applying the same ratio in the present case, considering the fact that land used has not been changed the increase from 30.04.1963 till 02.05.2001 for 36 year from the ratio of Bedi Ram (Supra) at flat rate would as follows:
27 6% increase from 30.04.63 to 30.04.73 = 18750 X 10 X 6/100 i.e. 10 years = 11250 10% increase from 30.04.73 to 02.05.2001 = 18750 X 28 X 10/100 i.e 28 years = 52500 Total = 18750 +11250+52500 = 82500 per bigha However even if 12% increase is granted for entire period of 38 years it would come to = 18750 X 38 X 12/100 = 85500 Total = 18750 + 85500 = 104250 per bigha Thus, even in that account also petitioner is not entitle to any enhancement.
18. Recently Higher Courts have adopted another method to arrive fair market value i.e. for giving an increase for the intervening period between notification of government policy determining minimum market rate of agricultural land and notification u/s 4 of LA Act. In Mahender Singh Vs. UOI LA Appeal No. 866/2005 Hon'ble High Court vide its judgment dated 11.05.2006 while determining land rate of village Bawana which was acquired for shifting of Industries, Hon'ble Judge has determined the market rate of Rs.199904.68 per bigha after duly considering the potentiality of land and other facts. In the said case, notification u/s 4 was issued on 15.11.1996. LAC has determined the market value at Rs.186500 per bigha for category 'A' land. Hon'ble High Court granted enhancement @ 11.5% 28 compounded annually for the intervening period between two notification i.e notification vide which govt. made effective minimum market price of agricultural land and the notification u/s 4 of the Act & thus determined market value at Rs.199904.68 per bigha It is also pertinent to mention here that in Mahinder Singh case also petitioner has relied upon the land rates of Rohini Residential Scheme on which DDA allotted plots and the Hon'ble High Court also considered potentiality of land being very close to Rohini Industrial Area. Even if same increase is given to petitioner, it would come to Rs.323778/ per bigha or Rs.1554135/ per acre.
Calculation of same are as under:
Period between two notification i.e. Notification of this case i.e. 02.05.06 and notification of Mahender Singh Case i.e.15.11.96 = 4 years 5 months and 17 days rounded of 53 months Interest @ 11.5% for st 1 year on Rs.199904 = 199904 X 115 X 1/1000 Interest = Rs. 22989 Principal & Interest = 199904 +22989 Total = Rs. 222893 nd 2 year = 222893 X 115 X 1/1000 Interest = 25633 Principal & Interest = 222893+25633 Total = 248526 rd 3 year = 248526 X 115 X 1/1000 Interest = 28580 Principal & Interest = 245826+28580 Total = 277106 th 4 year = 277106 X 115 X 1/1000 Interest = 31867 Principal & Interest = 277106+31867 Total = 308973 for 5 months = 308973 X 11.5 X 1/1000 29 Interest = 14805 Principal & Interest = 308973+14805 Total = 323778 per bigha or Rs.1554135 per acre whereas in case in hand LAC has determined the more market value than what has been awarded in the Mahender Singh Case.
19. LAC has determine the market value in the case in hand also on the basis of govt. policy. LAC has mentioned in award that:
"In a policy announcement which came into effect from the financial year 200102 Govt. of National Capital Territory of Delhi fixed the indicative price of agricultural land @ Rs.15,70,000 per acre for the acquisition of agricultural land vide their order no. F.P (20)/80/L& B/LA 6696 dated 09.08.2001 which are effective from 01.04.2001. Even though govt. has enhanced the minimum market rate of agricultural land only on 01.04.2001 but I am of the view that in view of Mahender Singh Vs. UOI (Supra) even one month period should have been taken into account by LAC as land rate might have increased even in that period also. Hence I hold that petitioner should be given increase for the intervening period between two notifications.
In the present case notification u/s 4 was issued 02.05.2001 where as govt. policy came into effect from 01.04.2001. Hence, I consider it appropriate to grant enhancement @ 12% simple interest for the 30 intervening period i.e. 01.04.2001 to 02.05.2001 (round of 1 month) on the market value determined by LAC i.e. Rs.15,70,000/ per acre. In this regard, I also find support from the judgment of Mahender Singh Vs. UOI (Supra) and further I rely upon Rameshwar Solanki & another Vs UOI & another, AIR 1995 DELHI 358, wherein escalation at the rate of 12% per annum was allowed to arrive at a fair market value, which comes to Rs.15,85,700/ (Rs.15,70,000 + Rs.15,700). Thus I determine market price of the said land @ Rs.15,85,700/ per acre for category 'A' land.
20. Is Category of Land justified:
20.1 Ld. Counsel for petitioner has argued that petitioner's land have been wrongly placed in category 'B' whereas his entire land was leveled one and there was no gaddas (pits) in the land. Hence, there was no justification given by LAC placing his land under category 'B'. Ld. Counsel has submitted that no survey of land whatsoever was ever conducted by acquiring department or by ld. LAC before placing his land in category 'B' hence, there was no basis to place his land in category 'B'.
20.2 On the other hand Ld. Counsel for UOI has argued that LAC has correctly placed some land of the petitioner in category 'B' as there were 34 feet gaddas in the said land. Ld. Counsel for respondent has further argued that in Ludhiana Improvement Trust vs. Bijeshwar Singh Chahel (1996) 9 SCC 188 Hon'ble Supreme Court has categorically held that belting system can be adopted by LAC as level up and level low lying land cannot 31 command the same market price.
20.3 I have heard the arguments of Ld. Counsels and perused the record.
20.4 LAC has divided the land into two categories on the basis of quality of land LAC has observed in award page 39 para 2 that:
"assessment of land falling in B Block is concerned attention is required to be made to the level of land. As stated earlier land is of gaddhas upto 34 feet. From this land earth has been taken out. To make this law leveled inferior quality land leveled, earth filling will have to be done. Local inquiries were made and it came to my notice that for removing earth upto 34 feet the land owners of these land had received money @ Rs.120 lacs per acre at that time ie. 103 years back. Attention is drawn to the Award 10/99/2000 of village Sannoth wherein the land having Gaddhas upto 3 feet have been categorized in Block 'B' on the market value assessed of the B Block land was lower by Rs.1,20,000,00 from the A block leveled land i.e. the owner of B block land received a sum of Rs.1.20,000,00 per acre on selling their land. The land in village Sannoth under reference was notified under section 4 of Land Acquisition Act on 01.06.1998. After taking into the consideration the increase in the market value of the 32 land notified subsequently, the market value of B Block is to be reduced by Rs.1,70,000 per acre on 27.10.2003 i.e. The date of notification under section 4 of LA Act in the present matter in comparison with the market value of leveled 'A' Block land. As such I assess the market value of B Block land @ Rs.14,00,000/ per acre.
20.5 As per section 19 statement some land of the petitioner has been placed in category 'B'. There is no doubt that LAC can categorise the land on the basis of quality of land. Belting system has been approved by the Higher Courts to make differentiation in the market value. In Ludhiana Improvement Trust Vs. Brijeshwar Singh Chahal and anothers (1996) 9SCC page 188. Hon'ble Supreme Court has categorically held that belting system can be adopted by LAC and leveled up and leveled low lying land cannot command the same market price. Hon'ble Supreme Court in para no. 5 has laid down the following law:
"We cannot appreciate the stand taken by the claimants as a fact have to establish that levelled up land & low lying land commenced same market value and that, therefore, they are required to be awarded at same rate. It is seen that Land Acquisition Officer has himself stated which was not disputed in the reference court that depth of the land is 3 to 6 ft. unless the land is leveled up it cannot commenced the same market value as the levelled up 33 land. Under these circumstances, the High Court was clearly in error in holding that the belting system cannot be adopted and compensation should be awarded of all land at the uniform rate."
In Gajraj Singh Vs. UOI LAA No.91/2005, Division Bench of Delhi High Court has also upheld the categorisation of land on the basis of quality of land. Thus I do not find that there is adopting belting system and fixing different rate of land on the basis of quality of land. However, it is to be seen whether LAC has correctly placed the land of the petitioner in the category B. 20.6 Ld. Counsel for the petitioner has argued that though land of the petitioner has been placed under category B however, land was levelled land and there was no gadhas (pits) in his land. LAC/UOI has placed no documents or evidence to support the fact that there was gadhas in his land.
20.7 Onus is on the Union of India to prove that quality of land of petitioner was inferior to other land & it has pit upto 34 feet. As normal rule is that all the land holders whose land has been acquired through same notification should be paid same rate unless LAC comes to the conclusion on the basis of cogent evidence on record that land is of inferior quality. 20.8 As Hon'ble High Court in LA Appeal no. 866/2005, titled as Mahender Singh Vs. UOI, Division Bench of our own High Court while dealing with similar question had set aside the 34 categorization of land, vide its judgment dated 11.05.2006. Following were the observations made by the Hon'ble High Court with respect to categorization of land : "10. ....................... The land which is being used for Bhatta purpose is having "Gadhas" upto three feet from which earth has been taken out for making bricks. This also includes "Bhatta Grund". Hence, for the purpose of assessing the market value, land can fairly be divided into two blocks.
11. The above findings of the Collector are based on what evidence or record is not reflected in the entire award. It cannot be disputed that at the time of the acquisition of the land, survey of the acquired land is conducted wherein every details in relation to the acquired land are expected to the noticed. This report is the very foundation on the basis of which any authority or court can come to the conclusion as to what was the user/state of the land at the time of acquisition. Unfortunately, in the present case, neither such a report appears to have been made available to the Collector nor was it produced before the Reference Cout despite a specific plea being led by the claimants in this regard. There are findings 35 of fact and must be recorded on the basis of some oral or documentary evidence which is maintained in the normal course of business of Department of the State. In the event, there is no documentary or oral evidence to support such a finding it would certainly call for judicial correction. The Collector in the entire award does not even notice that he had the occasion to visit the acquired land or any part thereof during the acquisition proceedings. Thus, we have to examine this finding of fact on the basis of the evidence produced before the Reference Court.
............. The possession thereof was taken vide kabza karwai (possession report) dated 18.12.1996 which was signed by as many as 15 persons from different Departments.
.............. In this possession report, there is no reference to brick kilns, brick gadhas or gadhas of the level of 3 feet or more. In the copy of the khasra girdawaris for the year 199697, 199798 in relation to the part of the land, there is no indication again that there was any brick kiln on the acquired land or part thereof.
12 ...........
13 ..........
36
15. .............
16. ............
17. Above is the documentary and oral evidence led by the claimants before the Reference Court. On the other hand, for the reasons best known to them, the respondents chose to withhold from the Reference Court all the relevant evidence. They opted not to examine any witness or produce any documents before the Reference Court. The survey report which ought to have been prepared prior to the acquisition was not produced either before the Reference Court or even before this Court. These are the documents which are in power and possession of the respondents and are maintained by them during the normal course of their business in completing the acquisition proceedings. In the event a party withholds the best evidence in its power and possession, the court would normally draw adverse inference against the party withholding the evidence. The learned Counsel appearing for the respondents argued that the onus was on the claimants and it was not obligatory on the part of the respondents to produce any 37 evidence. This argument is based on misconception of law and fact. Certainly the claimants approached the court for enhancement of compensation awarded to them by the Collector and the primary onus was upon the claimants. But, at the same time, Union of India supports the award of the Collector and there is an implied onus upon them to show to the satisfaction of the Reference Court that the award should be affirmed by the Court on facts as proved before the Collector and the law settled by the Court. The concept of onus shifts from one party to the other keeping in view of the facts and circumstances of the case.... The general and broad principle of evidence is that a party which affirms has the onus probandi. Another test is which party would fail if no evidence was led on a factual averment. .......... It was the argument of the Union of India that there was pits and gadhas in the lands and certain persons were running the brick kilns on the acquired lands. According to them this fact was correctly noticed in the award of the Collector............... Thus, as far as the respondents are concerned, their averments 38 that part of the acquired land in the revenue estate of village Bawana was of inferior quality is a plea supported by no evidence and the Collector made no attempt to justify his findings with reference to any records maintained by the Acquisition Department itself in normal course of its business.
18 .........
19 .........
20. Categorisation of land is an exception to the general rule of awarding uniform compensation for the acquired lands. This has to be proved, as a matter of fact, and it would be impermissible to infer such factual presumptions, particularly when the evidence led by the claimants stares the respondent in face. .................. and the Collector in his wisdom neither visited the site nor based his findings on any revenue records i.e. khasra girdhwari, survey reports, jamabandi etc. ................... the findings of the Collector in regard to categorisation, is a finding which cannot be sustained by this court.
20.9 While reverting to the facts of present case absolute no evidence has been led by the respondents to prove that there was 34 feet pits in the land of petitioner. LAC has stated that on local 39 enquiries it came to his notice that earth has been removed from the land which are placed in category 'B' but no such enquiry report has been placed on record nor any witness has been examined who has conducted the said enquiry. As stated in the Mahinder Singh case (supra) categorisation is an exception to the general rule of awarding uniform compensation for the acquired lands. Thus burden was on the respondents to prove that land of petitioner have 34 feet pit (gadhas) and same was to inferior quality. But they have failed to led any evidence to discharge the burden. Thus in view of the above evidence and settled position of law, I held that findings of LAC to place the petitioner's land in category 'B' cannot be sustained and are set aside, petitioner shall be entitle to compensation of category 'A' land. 20.10 Petitioner has also claimed Rs.2,00,000/ on account of tubewell, Rs.1,00,000/ on account of agricultural implements, Rs.1,00,000 for standing crops but he has not led any evidence to prove that he was not awarded sufficient compensation for trees, hence I hold that petitioner is not entitled to any enhancement in compensation for tubewell, agricultural implements and standing crops. Hence, said relief is declined.
20.11 Findings of issue no.1 are summarize as under:
a) categorization of land with regard to petitioner's land is set aside he shall be entitle to compensation of category 'A' land;
b) petitioner shall be entitle to compensation @ Rs.15,85,700 per acre for his land, thus getting an enhancement @ Rs.1,85,700 per acre;
40
21. Besides above, petitioner shall be entitled to other statutory benefit i.e 12% Addl. Amount as per section 12 23 (1) A & 30% solatium u/s 23 (2) & will be entitle to interest on the market value @ 9% per annum for the first year & 15% for subsequent year till the making of payment of enhanced compensation by LAC as per provision of Section 28 of the Act.
Issue no.1 decided accordingly.
22. Findings on Issue No.2 - RELIEF 22.1 In view of the findings on Issue no.1, the petitioner is entitled to the following reliefs:
a) petitioner shall be entitle to compensation of category 'A' land for the entire land;
b) thus market value of the petitioner is enhanced from Rs.14,00,000/ per acre to Rs.15,85,700/ per acre, thus getting an enhancement @ Rs.1,85,700/ per acre for the land as per statement u/s 19 LA Act ;
c) additional amount u/s 23 (1A) @ 12% p.a., on the market value from the date of notification u/s 4 of the LA Act till the date of award or dispossession, whichever is earlier ;
d) solatium u/s 23(2) of LA Act @ 30% on the enhanced amount of compensation ;
e) interest under Section 28 of L.A Act at the rate of 9% per annum for the first year from the date of dispossession and at the rate of 15% per annum on the difference between the 41 enhanced compensation awarded by this court and the compensation awarded by the LAC for the subsequent period till its payment ;
22.2 Reference is disposed of accordingly. 22.3 Decree sheet be prepared accordingly. A copy of the judgment be sent to LAC for necessary action.
22.4 File be consigned to record room.
ANNOUNCED IN OPEN COURT (SANJEEV KUMAR) TODAY i.e. ON 15.05.2010 ADJ01/ROHINI/DELHI 42