Delhi District Court
Sh. Jagdish Bharadwaj vs Union Of India Through on 9 February, 2011
IN THE COURT OF SH. SANJEEV KUMAR:
ADDITIONAL DISTRICT JUDGE : ROHINI COURTS : DELHI
LAC No.250A/09
UID No. 02404C0080502009
IN RE :
SH. LAXMI DEVI W/O SH. RAGHUBIR SINGH (DECEASED)
THROUGH LRS
1. SH. JAGDISH BHARADWAJ
2. SH. NARESH KUMAR BHARADWAJ,
BOTH SS/O SH. RAGHUBIR SINGH
R/O VILLAGE ALIPUR, DELHI
...... PETITIONER
Versus
1. UNION OF INDIA THROUGH
LAND ACQUISITION COLLECTOR,
NORTH WEST,
DELHI.
2. DELHI DEVELOPMENT AUTHORITY
VIKAS SADAN, DELHI (DDA).
........RESPONDENTS
Award No. 15/200304
Village ALIPUR
Date of Award/ Date of
Announcement of Award 28.08.2003
Notification U/S 4 F.10(4)/97/L&B/LA/7329
dt. 22.08.2001
Notification U/s 6 F.10(4)/97/L&B/LA/6752
LAC No. 250A/09 Page 1 of 33
dt. 05.07.2002
Date of Receipt of Reference :30.07.2005
Date of Arguments : 25.01.2001
Date of Decision: 09.02.2011
REFERENCE PETITION UNDER SECTION 18 OF THE
LAND ACQUISITION ACT 1894
J U D G M E N T
1. Vide this judgment I shall decide the reference u/s 18 of Land Acquisition Act, 1894 (hereinafter called as LA Act), filed by the petitioner for enhancement in compensation of the land bearing khasra no. 15/19(17), 15/22(49) total measuring 5 bigha 16 biswas situated in the revenue estate of village Alipur, Delhi.
2. Brief facts of the case are that large tract of Land measuring 512 bigha 16 biswa of village Alipur, Delhi, was acquired by the Govt. for a public purpose namely "Construction of 100 meter wide road in Narela Freight Complex Delhi under planned Development of Delhi". Notification under Section 4 of The Land Acquisition Act, 1894 (hereinafter referred to as 'LA Act') was issued on 22.08.2001 and corrigendum was issued on 26.06.2002. Declaration under Section 6 was made on 05.07.2002; Thereafter, Award bearing no. 15/200304 was announced by Land Acquisition Collector (hereinafter referred to as LAC) on 28.08.03. The LAC No. 250A/09 Page 2 of 33 LAC determined the market price of the acquired land as Rs.15,70,000/ per acre for category A land and Rs.14,00,000/ per acre for category B.
3. Being aggrieved of the said market value petitioner has challenged the said award on the following grounds :
a) that market value assessed by the LAC is imaginary and based upon the government policy and order no. F.9(20)/80/L&B/LA/6696 dated 01.04.2001 issued by the Govt. of NCT of Delhi while fixing indicative price of the agricultural land applicable from 01.04.2001 ignoring the judgment of High Court where it is held that value cannot be so fixed on the information given by the outside authority or booklet or directory issued by government. The market value of the acquired land is only to be assessed and determined strictly as provided by law u/s 23 and 24 LA Act;
b) that land of the petitioner has been acquired for contruction of 100 meter wide road in Narela Freight Complex therefore, LAC should have taken into consideration the present physical and existing development in and around the land of petitioner, the future potentiality of the land;
c) that LAC has failed to considered that DDA has increased the rates of alternative plots from Rs.750/ to Rs.6200/ per sq. yard, which make it clear that land of petitioner has high potential value and the fact that prices of land has increased 10 times;
d) that LAC has failed to appreciate that the land of the petitioner is adjacent to already developed industrial area and village abadi and LAC No. 250A/09 Page 3 of 33 has all facilities /civic amenities like developed metalled roads, electricity, hospitals, Govt. Schools, Public Schools, Colleges, Computer institutes, full fledged post office, health gym, modern panchayat ghar and most frequently served by DTC and various other private transporters as the G.T. Road i.e. National Highway 1 and the main Delhi Narela Road passes through the village Alipur.
There are nationalised bank as well as established hospitals in and around village Alipur and BDO, SDM OFfice and various other Govt. offices, fully developed and famous market, various management institutes, are already existing at Village Alipur;
e) that LAC has failed to consider that land of the petitioner is surrounded by various industrial areas like Alipur Industrial Area, Nangli Poona Industrial Area, Siraspur Industrial Area, Libaspur Industrial Area, Shahbad industrial area, Badli industrial area, Pehladpur Industrial area, and Bawana Industrial Area & Narela Industrial Area, Kundli Industrial Area in Haryana, adjacent to the village Alipur and also several godowns and big market at Narela and market value in those industrial area and colonies are more than Rs.10,000/ per sq. yards therefore, prices of the acquired land should have been assessed minimum rate of Rs.10,000/ per sq. yards;
f) that LAC has failed to appreciate that Delhi Jammu Railway Line passes through the land of petitioner and other land under acquisition and land of the petitioner was very fertile as same was irrigated by Sweet Water of West Yamuna Canal, which passes LAC No. 250A/09 Page 4 of 33 adjacent to the land of petitioner from which petitioner is growing three crops in a year;
g) that LAC has failed to appreciate that various palatial farm houses have been constructed in the adjoining villages like Bhorgarh, Rajapur Kalan, Holambi Kalan, Narela, Budhpur on G. T. Karnal Road and Alipur - Khera Road, DelhiNarela road where the land was not less than Rs.15,000/ per sq. yards;
h) that LAC has not taken into consideration the various salepurchase transactions of land in village Alipur and adjoining villages;
i) LAC has wrongly rejected two sale deeds of village Mamurpur and Narela, which was much prior to the date of notification u/s 4 of LA Act and relied upon the sale deed dated 04.02.2001 to come into the conclusion that market value is decreased where the LAC has also ignored the contents and theme of Government policy and letters of Govt. of NCT of Delhi based upon which LAC has decided the market value of the land at the rate of Rs.15,70,000/ per acre;
j) that LAC has not given any compensation for existing crops as he has suffered a loss of Rs.1 lac which he invested on growing crops;
k) that LAC has not given compensation for loss suffered by him due to change of place of abode and set up some other business, as after the acquisition of land he was left with no source of income, hence, he should have been paid Rs.5 lac on this account.
4. The petitioner has claimed compensation of her land at the rate of Rs.10,000/ per sq. yards. Besides this he claimed compensation of LAC No. 250A/09 Page 5 of 33 Rs.10,000/ per bigha for loss and damages done to the standing crops and vegetables, Rs.20,000/ for damages done to standing trees, Rs.5,00,000 for change of place of their business and abode.
5. The reference petition was contested by Union of India (hereinafter referred to as 'UOI') as well as Delhi Development Authority (hereinafter referred to as "DDA").
6. In the written statement filed on behalf of respondent no. 1/UOI it is stated that land of petitioner was not surrounded by developed or under developed colonies and can only be used for agricultural purpose and Delhi Land Reform Act was applicable to the said land. It is further stated that compensation awarded by LAC is fair, reasonable and adequate on the basis of market rate and petitioner is not entitle to any enhancement in the compensation awarded by the LAC.
7. In the written statement of Respondent no. 2/DDA, it is denied that the potential value of land of the petitioner is Rs.10,000/ per sq. yard. It is further denied that petitioner has suffered loss and injury due to compulsory change of nature and place of business and he has suffered a loss of crops. It is further stated that LAC has awarded the just and adequate compensation after taking into consideration all the facts relevant for determining the compensation and as such petitioner is not entitle to any enhancement in the compensation. LAC No. 250A/09 Page 6 of 33
8. During the pendency of the case, petitioner has expired and her LRs as mentioned in the memorandum of parties above were substituted as petitioners vide order dated 02.05.07 and on the same day following issues were framed :
1. Whether the petitioner is entitled to any enhancement in compensation. If so, to what amount ?
2. Relief.
9. In support of her claim, the substituted petitioner have examined 5 witnesses.
PW1 is Petitioner No. 2 Sh. Naresh Kumar Bhardwaj, who led his examination in chief by way of affidavit (no exhibit given). PW2 is Sh. Vijay Parkash, UDC, Land and Building Department, Vikas Bhawan, who has proved the copies of circulars dated 03.05.90 and 09.08.2001 as Ex. PW2/1 and Ex. PW2/2.
PW3 is Sh.Manjit Singh, Patwari, SDM Office, Narela, who has deposed about the location of the land.
PW 4 is Satish Chand Goel, Head Clerk from Office of Executive Engineer, E Building Narela Zone, who has proved the computerised list of motels Ex. PW4/1 and computerised list of farm houses since 2000 falling under Narela Zone as Ex.PW4/2.
LAC No. 250A/09 Page 7 of 33 PW5 is Sh. Satish Kumar, Patwari LAC NW has produce a list of award announced by LAC NW in respect of village Holambi Kalan, Holambi Khurd, Shahpur Garhi, Sanoth, Khera Khurd, Khera Kalan and Bhorgarh as Ex. PW5/1.
10. On the other hand Ld. Counsel for respondent has only tender the copy of award as Ex. R1 and copy of sale deed dated 04.12.01 of village Narela as Ex. R2.
11. I have heard the Ld. Counsel for the parties and considered the record. My issuewise findings are given hereinafter.
12. FINDINGS ON ISSUE NO. 1 : 12.1 There is no mathematical formula to determine the market value of land. Various methods has been adopted by the higher courts to determine the market value.
Recently in Special Land Acquisition Office Vs. Karigowda & Ors. 2010 AD (SC) 345 it is observed by Lordship of Supreme Court that normally following methods are adopted to determine market value such as :
a) Sales Statistics Method : Sales must be genuine and bonafied should have been executed at the time proximate to the date of notification u/s 4 of the Act, the land concerned by sale must be in the vicinity of the acquired land. The land covered under the sale LAC No. 250A/09 Page 8 of 33 instances should have similar potential and occasion as that of acquired land.
b) Capitalization of Net Income method - In this method of determination of market value, capitalization of income method or expert opinion method has been affiliated.
c) Agricultural yeild basis method - Annual agricultural yield of acquired land and keeping in mind the potential and nature of land, wet (irrigated), dry and barren (banjar).
And it depend upon facts of each case which factor is more suitable to determine the market value.
12.2 Ld. counsel for the petitioners has contended that LAC has determined the market value of the petitioner's land at the rate of Rs.15,70,000/ per acre on the basis of government policy, whereas petitioners should have been paid compensation on the basis of sale transaction and potentiality of land. The onus was on the petitioners to prove that they are entitled to higher market value of their land then what LAC has determined, as it was held in in State of UP & Anothers Vs. Rajender Singh AIR 1996 SC 1564, Hon'ble Supreme Court Judge held that "the onus is on the petitioners to prove that their lands are capable of fetching higher compensation then what has been determine by the LAC and that he is entitle for enhance compensation.".
LAC No. 250A/09 Page 9 of 33 In order to prove that petitioners are entitle to higher compensation they have examined 7 witnesses.
13. Market value on the basis income accrued from the agricultural yield/land Ld. counsel for the petitioner has contended that petitioner was earning Rs.1 Lac per bigha per annum from her land through cultivation. To prove the same he has relied upon testimony of PW1 Naresh Kumar who is one of the substituted petitioner. PW1 in his examination in chief led by way of affidavit has deposed that petitioner's land was very fertile and productive & they used to grow flower crops and was earning at least Rs. 100,000 per bigha per season and were growing three crops in a year. On perusal of his testimony, I found that in cross examination he has admitted that he was not maintaining any record of the yield and earning. Further in the claim Smt. Laxmi Devi had not mentioned that she was earning Rs.1,00,000/ per bigha rather in the relief para she sought damages for her crop @ Rs.10,000/ per bigha only, which make highly improbable to presume that when she was earning Rs.1,00,000/ per bigha from the crops she will claim damage to her crop for only Rs. 10,000/ per bigha. Hence, in the absence of any documentary proof of income, statement of PW1 does not inspire much confidence. Therefore, I held that petitioners have failed to prove that they were was earing Rs. 1,00,000/ per bigha per season from the lend in question. Hence, I held that petitioners are not entitle to any enhancement in compensation on the basis of agriculture income.
LAC No. 250A/09 Page 10 of 33
14. Market value on the basis of sale transactions 14.1 Best method to determine the market value is the sale transaction In 'Special Deputy Collector and Anrs. Vs. Kara Sambasine Rao and Anrs. AIR 1997 SC 2625', it is held that "the acid test would be whether a hypothetical willing vendor would sold over the land and willing purchaser be willing to buy the land as a prudent purchaser in normal condition prevailing in the open market in the locality in which the acquired land are situated as on the date of notification u/s 4 of the LA Act".
Further, in UOI Vs. Pramod Gupta 2004 RCR Civil 235 it is held that :
"the best method as well known would be the amount which a willing purchaser would pay to the owner of the land in the absence of any direct evidence in the court however, may take recourse to various other methods."
14.2 While reverting back to the present case, PW1 has proved sale deeds of village Khera Khurd & other of village Mamurpur as Ex. PW1/1 & PW1/2 respectively. Beside this petitioner has also relied upon one sale deed of village Khera Khurd as Mark 'A', one sale deed of village Narela as Mark B and various allotment letters whereby DDA has sold alternative plot as MarkC (Collectively) and two allotment letter dated 28.03.2006 and 25.04.2006 issued LAC No. 250A/09 Page 11 of 33 by DSIDC as Mark D collectively.
14.3 On the other hand, respondents have relied upon sale deed Ex. R2 dated 01.04.2001 of village Narela.
14.4 Ld. Counsel for the petitioner has contended that LAC has wrongly rejected the sale deed of village Mamurpur i.e. Ex. PW1/2 on filmsy ground. He has drawn my attention to page 9 para 2 of the award under the heading market value which is reproduce as below :
"Some of the claimant have filed the documentary evidence in the form of certified copy of the sale deed executed on 25.03.2000 for a sum of Rs.26,75,000.00 per acre in respect of one acre of land situated in village Mamoorpur in support of their claim.
On perusal of his claim it is found that the claimant has not at all stressed on the said sale deed in support of his claim. Also it is well established that in determining compensation, the valuation fetched for smaller plot of land cannot be applied to lands covering a very large area. The larger area of land cannot possibly fetch the same rate at which smaller plots are sold. Moreover, the location of the two land situated in village Alipur and that in Mamurpur differ considerably". LAC No. 250A/09 Page 12 of 33
Ld. counsel has contended that there are number of judgments where in it is held by Hon'ble Supreme Court that the sale price of smaller piece of land can be looked upon while determining the market price of large land. In support of his contention he has relied upon the judgment titled as Ravinder Narayan & Ors. Vs. UOI AIR 2003 SC 1987, in which it is observed by Supreme Court that :
"It cannot, however, be laid down as an absolute proposition that the rates fixed for the small plots cannot be the basis for fixation of the rate. For example, where there is no other material it may in appropriate cases be open to the adjudicating Court to make comparison of the prices paid for small plots of land. However, in such cases necessary deductions/adjustments have to be made while determining the prices"
Ld. Counsel has further contended that LAC should have relied upon the sale deed of village Mamurpur i.e. Ex. P2 and what he could have made necessary deductions from the sale price mentioned in the sale deed of village Mamurpur towards development cost and thereafter he could arrive at just market value. He further contended that sale price as mentioned in sale deed Ex. PW1/2 is Rs.26,75,000/ which after adding stamp duty LAC No. 250A/09 Page 13 of 33 comes to Rs.28,89,000/ per acre.
14.5 Ld. Counsel for the petitioner has further relied upon the sale deed dated 25.04.2001 of village Khera Khurd Ex. PW1/1 where in 10 biswas land has been sold @ Rs.4,00,000/ it becomes Rs.4,32,000/ after adding stamp duty, which comes to Rs.41,47,200 per acre.
14.6 Ld. Counsel for the petitioner has argued that though these sale deeds are not of same village, but they are of adjacent village, which are at a distance of just few acre from the land of petitioner and court can rely upon the sale deed of adjoining village while determining the market value. He has argued that with respect to sale deed of village Mamurpur market value comes around Rs.28,89,000/ per acre after adding the amount of stamp duty. And if 30% deduction is made towards development cost of market price would come to approximate Rs. 20 lacs. Whereas with regard to the sale deeds of Khera Khurd it would be Rs. 41,47,200/ per acre. Ld. Counsel has further argued that this Court can determine the market value by deducting appropriate percentage of petitioner's land as cost development of land and even if 30% deduction is made, cost of land of petitioner would not be less than Rs.30 lacs. And even if, average price of these two sale deed is taken Rs. 35 lacs per acre approximately & after 30% deduction, petitioner would be entitled to 24 lacs LAC No. 250A/09 Page 14 of 33 approximately.
14.7 On the other hand, Ld. Counsel for the UOI Sh. Sachin Nawani argued that sale deed Ex. PW1/1 & PW1/2 and mark A and mark B can not be relied upon to determine the market value as they are of different village and petitioner has led no evidence to prove that potentiality of land under sale deed is same as that of petitioner's land. As 'Kanwar Singh Vs. UOI' (1998) 8 SCC 136 where in 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".
I have considered the arguments of both the parties. 14.8 In Land Acquisition Officer Vs. Nookala Rajamallu (2003) 12 SCC 334 Supreme Court has held that following conditions are required to be met before accepting a sale deed for the purpose of determining the market value :
a) It can be broadly stated that the element of speculation is reduced to a minimum if the underlying principles of fixation of market value with reference to comparable rates are made :
i) when sale is within a reasonable time of the date of notification under section 4(1) :
ii) It should be a bonafide transaction LAC No. 250A/09 Page 15 of 33
iii) It should be the land acquired or land adjacent to the land acquired
iv) It should possess similar advantages.
In Ranvir Singh Vs. UOI (2005) 12 SCC 59 in para 34 it is held that:
"it a well settled law that he sale deeds pertains to the operation of the land which are subject to close would be the most relevant piece of the evidence for assigning the market value of the land."
Further in Lal Chand Vs. UOI it is held that :
"Mere production of some exemplar deeds without 'connecting' the subject matter of the instrument, to the acquired lands will be of little assistance in determining the market value. Section 51A of the LA Act only exempts the production of the original sale deed and examination of the vendor or vendee."
14.9 Let us apply the said test on sale deed relied upon by parties. On perusal of sijra Ex. PW3/1, I found that both village Mamarpur and village Khera Khurd are not even adjacent to the village Alipur. Neither seller nor purchaser has been examined by the petitioner to prove that location, potentiality of the land of sale deed Ex. PW1/1 and Ex. PW1/2 is similar to acquired land. LAC No. 250A/09 Page 16 of 33 Further, with regard to sale transaction of village Khera Khurd Ex. PW1/1, it is a sale between two nongovernment Cristian Organisation and definitely same is not for agricultural purpose. On perusal of sale deed Ex. PW1/2, it is apparent that land has been purchased by Radha Swami Satsang, which is a religious Trust. Therefore, purpose of purchasing land definitely is not agricultural purpose as they are not going to cultivate the land. Hence, I am of the view that land under sale deed Ex. PW1/1 & PW1/2 did not satisfy the criteria suggested by Supreme Court in above mentioned judgements, as neither the potentiality and location of the land is similar nor purpose of purchase is same. Hence, same cannot be relied upon to determine market value of petitioner land.
14.10 On the other hand respondent has also relied upon sale deed R2 th dated 4 December 2001 of village Narela where in vendee has sold his ¼ share in 34 bigha 2 biswa land i.e. 170 biswa, for a sum of Rs.13,60,000/ which comes to Rs.7,65,747 per acre, however, since respondents have also not examined either vendor or vendee therefore, again reiterate that land under this sale deed cannot be compared with petitioner's land, further as mentioned in the sale deed that vendor is in need of money, therefore, it cannot be ruled out that land has been sold below the market price. Hence the sale deed R2 also cannot be relied upon to determine market value. LAC No. 250A/09 Page 17 of 33
14.11 As far as allotment letters mark C (colly) are concerned, allotment letter dated 04.01.2000 pertain to plot no. 52 Pocket 03, Sector A 5 to plot no. 46, block R, Pocket - 3 and third letter pertain to plot no. 95, blockR, pocket3 situated in Narela Residential Scheme. In these letters DDA have Sold 70 sq. meter plot each @ Rs.3028 per sq. meter in the year which comes to Rs.1,22,51,288/per acre. 14.12 While mark 'D' is the allotment letter issued by DSIDC. While first letter is dated 28.03.2006 issued to R.S. Enterprise with respect allotment of 100 sq. mtr. Plot in Bawana PhaseII @ Rs. 5150 per sq. mtr. Which comes to Rs. 20836900/ per acre and second letter dated 20.04.2000 issued to Saroj Engineering @ Rs. 3000 sq. mtr. Which comes to Rs. 12138000/ per acre. Ld. Counsel for the petitioner has contended from these allotment letters, it is proved that DDA and DSIDC has allotted the land in the colony and industrial area developed by them at much higher rates and said fact is not taken into consideration by the LAC while determining market value. LAC should have determined the market value by deducting appropriate percentage for development of these plots. 14.13 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 LAC No. 250A/09 Page 18 of 33 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).
14.14 I have considered the arguments and gone through the evidence. It is not in dispute that DDA & DSIDC has allotted plots at much higher rates. It is not in dispute that DDA or DSIDC allot the plot after developing the same. The plots mark 'C' have been allotted for residential purpose, in Narela residential area whereas plots mark 'D' have been allotted for industrial purpose situated in industrial area in Bawana PhaseII, whereas petitioner has himself admitted in his cross examination that his land is purely agricultural. Thus, I am agree with the contention of Ld. Counsel for UOI that there can not be any comparison between petitioner land which is purely agricultural land and land allotted by DDA & DSIDC which has been allotted after developers. In this regard I rely upon Lal Chand Vs. UOI VII (2009) SLT 439 decided on 12.08.2009 has held that "7. On careful consideration, we are of the view that 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 LAC No. 250A/09 Page 19 of 33 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 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 LAC No. 250A/09 Page 20 of 33 '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 semi developed 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 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 LAC No. 250A/09 Page 21 of 33 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/ 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, LAC No. 250A/09 Page 22 of 33 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 also Division Bench of the High Court of Delhi rejected the demand of petitioner to give rate of land, as which DDA sold plots. In this case 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 LAC No. 250A/09 Page 23 of 33 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 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 LAC No. 250A/09 Page 24 of 33 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).
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 LAC No. 250A/09 Page 25 of 33 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 the conclusion that the High Court has wholly erred in relying upon Exhibit A1 in determining the market value of the LAC No. 250A/09 Page 26 of 33 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:
"28. The High Court did not consider any relevant criteria on the basis whereof it could LAC No. 250A/09 Page 27 of 33 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 possibility of reduction of the rate at a future date could not be ruled out."
LAC No. 250A/09 Page 28 of 33
In the light of above said judgment, I held that land rate at which was fixed by DDA or DSIDC allotted plot cannot be a good exampler to determine market price of undeveloped agricultural land. Hence, I held that petitioner has failed to prove that he is entitle to higher market value on the basis of sale transaction.
15. Market value on the basis of location, potentiality and others factor.
15.1 Ld. counsel for the petitioner has contended that the LAC has not taken into account the location, potentiality of the land, that same is fit for residential/commercial purpose and is very closed to the developed area of Narela, Rohini Township and Bawana Industrial area where DDA and DSIDC has developed residential colony and Industrial area respectively. To prove the location of land Ld. Counsel has relied upon testimony of PW3 Sh. Manjit Singh, Patwari who has proved Sizra of Village Alipur Ex. PW3/1. On perusal of the sizra, I found that North of village Halambi Kalan are village Bakoli, in south of village Budhpur, in the east of village Bakhtawarpur and in the west village Holami Kalan, Khera Kalan is situated. PW3 has further deposed that petitioner land is situated at a distance of 9 kila from extended abadi. There are plots, godown, factories in extended village abadi, electricity connection are available to such godwon and factories, G.T. Road are eastern village Alipur, which connect. In cross examination witness has admitted that land in question is 2 Kilometer away from Alipur bypass. He has stated that he cannot say, permission from competent authority has been obtained for running factories.
LAC No. 250A/09 Page 29 of 33 15.2 Though Ld. Counsel for petitioner has further contended that many farm houses and motels have been constructed in and around petitioner land. To prove the same he has relied upon testimony of PW4 Sh. Satish Chand Goel, Head Clerk, Office of Executive Engineer Building, Narela Zone, MCD, who has proved the list of farm houses sanctioned since 2000 in Narela 300 MCD as Ex. PW4/2, list of motels situated in Narela Zone as PW4/1. But on perusal of list of motel Ex. PW4/1, it is proved that fifteen motels have been sanctioned, but one of these list only for two motels have been sanctioned upto year 2001 i.e. Srl. no. 1 & 2 of the list, which are situated in the village Bakoli where as rest are sanctioned after way back of Section 4 notification, which cannot be relied upon as only development upto Section 4 notification can be looked upon to determine market value. Similarly on perusal of list of sanctioned farm houses Ex. PW4/2 it is proved that sanction of 35 farm houses has been given year 2000 onward but only sanction of one farm houses has been given i.e. Srl. no. 35 prior to Section 4 notification. Further no date of completion of said farm house has been mentioned, therefore it is not proved whether farm house has been actually constructed or not. Thus, petitioner has failed to prove that much development has taken place in and around village Alipur prior to Section 4 notification. However, certainly it prove that petitioner land has future potentiality which is further prove from document Ex. PW5/1 which is the list of award announced by LAC with respect to village Holambi Kalan, Holambi Khurd, Sanoth, Shahpurgarhi, Khera Khurd & Bhorgarh, Alipur, Mamarpur, Narela etc. These land has been acquired LAC No. 250A/09 Page 30 of 33 by DDA and DSIDC to develop residential colony and industrial area. Ld. counsel for the petitioner has contended that LAC has determined the market value on the basis of govt. policy of fixing minimum rate of agriculture land @ Rs.15,70,000/ which was made effective from 01.04.2001, where as notification u/s 4 was issued on 22.08.2001 but the LAC has not granted any increase for the intervening period 01.04.2001 to 22.08.2001 Ld. Counsel has contended that considering the potentiality of the land at least 15% increase should be given for the intervening period.
15.3 On the other hand, ld. Counsel for respondent has argued that since petitioner has failed to prove that there is any increase in market value from 01.04.01 to 22.08.01, therefore petitioner is not entitle to any enhancement.
15.4 As stated above LAC has determined market value on the basis of Govt. policy. From the two Govt. policy proved by petitioner i.e. Dated 03.05.90 and 09.08.09 i.e. Ex. PW2/1 and PW2/2 respectively, it is proved that while in year 1990 Govt. has determined the minimum market price of agricultural land @ Rs. 4.65 lac per acre, it increase it to Rs. 15,70,000/ in year 2001. Thus it cannot be said that Govt. has not taken into account potentiality of land, while determining minimum price of agricultural land.
But, I found force in the contention of Ld. Counsel for the petitioner that atleast petitioner is entitle to escalation for the intervening period from LAC No. 250A/09 Page 31 of 33 the date when the Government policy become effective till the date of notification u/s 4 of the LA Act i.e. 01.04.2001 to 22.08.2001. There are numerous judgment which fortify my this view. In Mahinder Singh Vs. UOI LA Appeal no. 866/2005 decided by Delhi High Court on 11.05.06 Hon'ble High Court has awarded 11.5% compound interest for the intervening period whereas in Partap Singh Vs. UOI LA Appeal no. 780/2008 dated 19.12.2008 Hon'ble High Court has granted 12% increase for the intervening period between two sale deed since gap was about 10 months approx. Similarly in Bedi Ram & Ors. Vs. UOI and Ors. 93(2001) DLT 150, 12% increase has been given by the High Court. Considering all these judgment I am of the view that it would be justified to give increase @ 12% for the intervening period between the date of government policy & notification u/s 4 of LA Act (i.e. 01.04.2001 to 22.08.2001 = 143 days) it comes to Rs.16,43,811/ per acre. Thus petitioner get an enhancement of Rs.73,811 per acre. Hence, I determine the market value @ Rs. 1643811 per acre. Besides this petitioner should be entitle to 12% additional amount u/s 23(1)A and 30% Solatium u/s 23(2) of LA Act. He should also be entitle to 9% interest per annum as the enhancement compensation for the first year and thereafter 15% per annum till the realization of last enhanced compensation as per Section 28 of LA Act.
16. Since petitioner has not evidence to prove that he has suffered loss of standing crops or trees due to acquisition therefore he is not entitle to any compensation for it. This claim for loss of crops and standing trees is hereby LAC No. 250A/09 Page 32 of 33 rejected.
Issue no. 1 decided accordingly.
17. ISSUE NO. 2. Relief.
In view of the findings on Issue no.1, the petitioner is entitled to the following reliefs:
a) Petitioner shall be entitled to market value @ of Rs. 1643811/ per acre thus getting an enhancement of Rs. 73811/ per acre.
b) 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 ;
c) solatium u/s 23(2) of LA Act @ 30% on the enhanced amount of compensation ;
d) 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 enhanced compensation awarded by this court and the compensation awarded by the LAC for the subsequent period till its payment .
18. Reference is disposed of accordingly. Decree sheet be prepared accordingly. A copy of the judgment be sent to LAC for necessary action. File be consigned to record room.
Announced in the open court (SANJEEV KUMAR)
today on 09.02.2011 ADDITIONAL DISTRICT JUDGE:
DELHI
LAC No. 250A/09 Page 33 of 33