Delhi District Court
Shri Pramod Kumar vs Union Of India Through on 12 October, 2011
IN THE COURT OF SHRI ARUN BHARDWAJ: ADJ:
SOUTH WEST: NEW DELHI.
LAC No. 53/11/06
In the matter of :
Shri Pramod Kumar,
S/o Late Shri Ramanand,
R/o H. No. WZ1581,
Village Nangal Raya,
New Delhi - 110 046.
... Petitioner
Versus
1. Union of India through
Land Acquisition Collector (South West),
Kapashera, New Delhi.
2. DDA through its
ViceChairman,
INA, Vikas Sadan,
New Delhi.
... Respondents
Village : Nangal Raya
Award No.: 09/200506
Filed on : 07.08.2006
Reserved on : 07.10.2011
Decided on : 12.10.2011
LAC No. 53/11/06 Page 1/30
JUDGMENT:
1. This is a reference under Section 18 of the Land Acquisition Act, 1894.
2. Subject matter of this reference is land measuring 5 biswa (i.e. 250 sq. yds.) out of Kh. No. 128/2 of Village Nangal Raya which is an urbanized village.
3. In this case, possession of the land in question was taken over before the acquisition of land. The possession was taken over in 1991. Notification under Section 4 of the L.A. Act was issued on 27.05.2004. Notification / declaration under Section 6 of the L.A. Act was made on 12.08.2004. Notification under Section 17 of the L.A. Act was also issued on the same date. The award was passed on 26.12.2005.
4. Initially, LAC gave a sum of Rs. 15,06,521/ towards 80% of the estimated compensation of the land when notification under Section 17(1) of the Land Acquisition Act was issued.
5. This figure was arrived at by LAC on the basis of L&DO rates for residential land in locality in vicinity of the land in question.
6. However, while passing the award, LAC reduced the compensation to just Rs. 3,23,153/ calculated @ Rs. 864/ per sq. yds. based on sale deeds of area and demanded refund of excess LAC No. 53/11/06 Page 2/30 payment of Rs. 11.83 lacs from the petitioner.
7. LAC explained rejection of rates fixed by L&DO by observing that '... the L&DO rate, which covers a large area cannot be taken as representative price of a small tract of land...'
8. LAC awarded interest payable as per LA Act w.e.f. 17.12.2004 when possession pursuant to notification under Section 17(1) of LA Act was taken and handed over to DDA, the beneficiary. (In heading of Award, this date is 12.08.2004).
9. Petitioner, in his reference petition, has stated that the L&DO rates for commercial land and not residential land should have been looked into for deciding the market value of the land in question because the land was used for commercial purposes by DDA since 1988. Therefore, compensation @ Rs. 40,000/ per sq. yds. was prayed.
10. Petitioner has also stated in the reference petition that the DDA itself had fixed rates to convert leasehold property into freehold for adjoining area @ Rs. 14,980/ per sq. yds. Therefore, petitioner stated that the market value assessed by the Collector is undervalued.
11. Petitioner has also stated that interest should be paid to him w.e.f. 1988 when possession was taken and not from the date of notification under Section 17(1) of Act.
12. Sale deeds relied by LAC have been challenged by LAC No. 53/11/06 Page 3/30 petitioner as of far away area and undervalued.
13. Union of India did not file any written statement.
14. The beneficiary, DDA filed its written statement and stated that the LAC while making the award had taken into consideration the market value of the land on the basis of sale deeds of the adjoining lands as well as other documents which were made available and produced before the LAC. It was also stated that the LAC has taken into account facilities available near the land while assessing the compensation and any enhancement of the amount of compensation will not be justified and reference is liable to be dismissed.
15. DDA also took an objection that DLR Act was applicable to the land in question at the time of notification which reduces the market value of the land and therefore the amount awarded by LAC is adequate, sufficient, just and legal.
16. DDA also took an objection that the petitioner is not owner of the land in question and has no locus standi to file the reference petition.
17. DDA has denied that petitioner is entitled to claim any enhanced compensation for his acquired land or any amount for tube wells and wells with built up boundaries, crops, trees or any other amount towards rehabilitation charges. Therefore, DDA prayed for dismissal of the reference. (References to tubewells, crops etc. in LAC No. 53/11/06 Page 4/30 written statement of DDA shows that written statement was prepared mechanically as it is nobody's case that the land in question had tubewell, crops etc.).
18. From the pleadings of parties, following issues were framed: i. Whether Delhi Land Reforms Act is applicable to the land in dispute, if so, its effect?
ii. Whether petitioner is entitled to receive enhanced compensation, if so, to what amount?
iii. Relief.
19. Petitioner has examined six witnesses including himself in support of his case.
20. Petitioner entered witness box as PW1 and filed his affidavit in evidence and following documents were proved and exhibited: i. Ex. PW1/1: Copy of representation dated 12.10.99 made to DDA. (In this representation, petitioner had prayed for allotment of a plot of equal size by DDA in lieu of his unacquired land. This representation mentions about a civil suit bearing Suit No. 3224/91 filed before Hon'ble High Court of Delhi which was transferred to District Courts and was given new Suit No. 139/94 due to change in pecuniary jurisdiction. What is the nature of this suit? What is the status of this suit today? Petitioner has not preferred to share the same with this Court.) ii. Ex. PW1/2: Standing instructions issued by Land LAC No. 53/11/06 Page 5/30 and Building Department to LACs to assess land in respect of urbanized villages as per L&DO rates to avoid unnecessary litigation.
iii. Ex. PW1/3: Claim filed by petitioner under Section 9 of the LA Act. In this representation, petitioner claimed compensation @ Rs. 40,000/ per sq. mtr. In the same claim, petitioner claimed compensation @ Rs. 17,870/ per sq. mtr. which are the conversion charges charged by DDA for conversion of leasehold industrial plot to freehold in Mayapuri Rewari Line Industrial Area.
iv. Ex. PW1/4: Notice dated 27.12.05 under Section 12(2) of the Act which was issued to petitioner by LAC intimating announcement of award.
v. Ex. PW1/6: Attested copy of award.
21. PW2 and PW4 are same witness i.e. LDC, L&DO, Nirman Bhawan, New Delhi. This witness proved the schedule of market rates of land in Delhi from 1991 to 2001. This witness deposed that after the year 2000 rates were not revised and rates for residential and commercial land for 'Tihar' were Rs. 6,930/ and Rs. 14,490/ per sq. mtr. respectively. Tihar is said to be the nearest locality to urbanized village Nagal Raya.
22. PW3, Shri Ved Prakash, Naib Tehsildar, Land & Building Department proved standing instructions issued by Land & Building Department to LACs to assess compensation of urbanized LAC No. 53/11/06 Page 6/30 land at rates of L&DO. These instructions were already exhibited as Ex. PW1/2 and were again exhibited as Ex. PW3/2 and 3. Minutes of meeting were exhibited as Ex. PW3/1.
23. PW5 was Shri Jag Pal Singh, Patwari, New Lease Branch, DDA. This witness proved letter dated 16.05.2005 which was exhibited as Ex. PW5/A. As per this letter, possession of Plot No. D3/12 falling in Kh. No. 128/2 was handed over to allottee on 20.10.91.
24. PW6, Shri Jamal Ahmad, Planning Assistant, DDA, Vikas Minar has stated that Mayapuri Industrial Area was approved on 01.08.1990. Master Plan and Zonal Plan were exhibited as Ex. PW6/1 and 2 respectively.
25. Shri Ravinder Kumar, Patwari, LAC was referred as PW6 instead of PW7. This witness was examined to prove notice under Section 12(1) of the Act as Ex. PW6/A. This notice is already exhibited as Ex. PW1/4.
26. PW7 examined by petitioner was Shri R.C. Gupta, UDC, Industrial Land Branch, DDA. As per this witness, land rates for Mayapuri Industrial Area prevailing in the year 2004 were Rs. 21,195/ per sq. mtr.
27. On behalf of Union of India, reliance was placed on award in question which was exhibited as Ex. R1 and six sale deeds whose certified copies were exhibited as Ex. R2 to R7. Perusal of LAC No. 53/11/06 Page 7/30 sale deeds shows the following: S. No. Date Area Amount Rate
1. 24.05.05 52 sq. yds. Rs. 50,000.00 Rs. 961/ per sq. yds.
2. May, 2004 55 sq. yds. Rs. 50,000.00 Rs. 909/ per sq. yds.
3. 28.05.04 118 sq. mtr. Rs, 1,00,000.00 Rs. 847/ per sq. yds.
4. 29.05.04 126 sq. yds. Rs. 1,00,000.00 Rs. 793/ per sq. yds.
5. 29.05.04 125 sq. yds. Rs. 1,00,000.00 Rs. 800/ per sq. yds.
6. 29.05.04 103 sq. yds Rs. 1,00,000.00 Rs. 970/ per sq. yds.
28. DDA did not bring on record any evidence.
29. Arguments were addressed by Shri Ravinder Singh, learned counsel for petitioner and Shri S.S. Dalal, learned counsel for Union of India. Written arguments were also filed by both the parties. Learned counsel for petitioner also filed on record copies of judgments relied upon by him.
30. Issue wise findings are as under: Issue No. 1: Since land in question is urbanized, Delhi Land Reforms Act, 1954 does not apply to it. Reliance can be placed on Indu Khurana vs. Union of India: WP(C) 4143/2003 dated 26.03.2010 and Sardar Singh & Anr. vs. Government of NCT of Delhi and Anr.: WP (C) No. 6789/08 dated 05.08.2010. This issue is answered in favour of petitioner holding that Delhi Land Reforms Act, 1954 does not apply to the land in question. Therefore, there is no question of any adverse affect on the market value of the land in LAC No. 53/11/06 Page 8/30 question.
31. Issue No. 2: LAC had given Rs. 15,06,521/ towards 80% of the estimated compensation before passing the award. However, relying upon sale deeds referred above, compensation was reduced to just Rs. 3,23,153/ @ Rs. 865/ per sq. yds. and petitioner was called upon to return excess payment of Rs. 11.83 lacs.
32. Respondents have relied upon certified copies of sale deeds. However, vendor, vendee or attesting witnesses or scribe of sale deeds was not examined.
33. In the case of Special Dy. Collector and Anr. etc. vs. Kurra Sambasiva Rao and Ors., Civil Appeal No. 37953814 of 1997 dated 29.04.1997 and reported in SUPREME COURT JUDGMENTS ON LAND ACQUISITION(199404) Volume II Page No. 1253 it is held in para 8 as under: "Para 8. The best evidence of the value of property are the sale transactions in respect of the acquired land to which the claimant himself is a party; the time at which the property comes to be sold; the purpose to which it is sold; nature of the consideration; and the manner in which the transaction came to be brought out. They are all relevant factors. In the absence of such a sale deed relating to the acquired land, the sale transaction relating to the neighbouring lands in the vicinity of the acquired land. In that case, the features required to be present are:
it must be within a reasonable time of the date of the notification; it must be a bona fide transaction; it should LAC No. 53/11/06 Page 9/30 be a sale of land similar to the land acquired or land adjacent to the land acquired; and it should possess similar advantageous features. These are relevant features to be taken into consideration to prove the market value of the acquired land as on the date of the notification published under Section 4 (1) of the Act. This would be established by examining either the vendor or the vendee. If it is proved that they are not available, the scribe of the document may also be examined in that behalf. Section 51A of the Act only dispenses with the production of the original sale deed and directs to receive certified copy for the reason that parties to the sale transaction would be reluctant to part with the original sale deed since acquisition proceedings would take long time before award of the compensation attains finality and in the meanwhile the owner of the sale deed is precluded from using the same for other purposes visavis this land. The marking of the certified copy is per se is not admissible in evidence unless it is duly proved and the witnesses, viz. the vendor or the vendee, are examined. This principle has been repeated in a catena of subsequent decisions of this Court."
34. In the case of Kumari Veerain and Ors. vs. State of Andhra Pradesh : SLP No. 4021/1995 dated 28.02.95 reported in SUPREME COURT JUDGMENTS ON LAND ACQUISITION (199404) Page No. 457 it is held in para 5 as under: "Para 5. It is true that the certified copies of the sale deeds are admissible in evidence as secondary evidence under Section 51A of the Act since owners would be reluctant to part with their original sale deeds. But unless LAC No. 53/11/06 Page 10/30 either the vendor or the vendee has been examined as witnes to testify not only the consideration paid but also their specific knowledge and the circumstance in which the sale deed came to be executed nearness to the lands etc., the sale deeds cannot be relied on to determine market value of the acquired lands. The true nature and situation of the respective lands are relevant and germane as comparable sales for determination of the compensation and are required to be brought on record through admissible evidence and tested on the anvil of common experience. Therefore, by mere marking the documents Exs. A3, A4, A8 and A10 by themselves do not amount to proof of the aforementioned factors."
35. In the case of Union of India etc. vs. Sunil Chandra Saha and Anr. : Civil Appeal No. 5559/94 dated 25.07.95 reported in SUPREME COURT JUDGMENTS ON LAND ACQUISITION (199404) Page No. 541 it is held in para 2 as under: "Para 2. Both the claimants and the Land Acquisition Officer merely marked the sale deeds without examining either the vendor or the vendee to bring on record the circumstance in which the sale deeds came to be executed, the distance of the lands to the acquired lands, the nature of the respective lands and whether they would offer comparable sales to determine just and fair market value to the acquired lands. In the absence of such relevant and material evidence it would be difficult o determine compensation in respect of the acquired lands."
36. In the case of State of UP and Anr. vs. Rajendra LAC No. 53/11/06 Page 11/30 Singh: Civil Appeal No. 2921/96 dated 25.01.96 reported in SUPREME COURT JUDGMENTS ON LAND ACQUISITION (199404) Page No. 779 it is held in para 3 as under: "Para 3. It is further settled law that the sales transactions filed either in the narration of award or documents, without examination of either the vendee or by the vendor is not evidence."
37. In the case of Meharban & Ors. vs. The State of U.P. and Ors. : Civil Appeal No. 4216/97 dated 30.04.97 reported in SUPREME COURT JUDGMENTS ON LAND ACQUISITION (199404) Page No. 1262 it is held in para 13 as under: "Para 13. Since none connected with the sale deeds was examined, the sale deeds are inadmissible in evidence though certified copies marked under Section 51A are available."
38. In the case of A.P. State Road Transport Corporation, Hyderabad represented by Managing Director vs. P.Venkaiah and Ors.: Civil Appeal No. 3404 of 97 dated 28.04.97 reported in SUPREME COURT JUDGMENTS ON LAND ACQUISITION (199404) Volume I Page No. 815 it is held in para 3 as under: "Para 3. Acceptance of certified copy of the sale deed under Section 51A relates only to the production of the original sale deeds but it does not dispense with proof of LAC No. 53/11/06 Page 12/30 the contents of the documents, relative features visavis the land under acquisition. All is needed to be proved by examining the persons connected with the same and parties to the document."
39. In Ex. R2, address of vendeee and vendor is same. It cannot be ruled out that the sale may be between a tenant - landlord or relations and therefore undervalued.
40. In Ex. R3, vendor and vendee are husband and wife. Therefore, it cannot be ruled out that sale consideration was nominal amount.
41. In Ex. R4, vendor and vendee are father and son. Therefore, it cannot be ruled out that sale consideration was nominal amount.
42. In Ex. R5, vendor and vendee are residents of same address. They may be relations or landlord - tenant and that is why sale consideration is undervalued.
43. In Ex. R6, vendor and vendee are residents of the same address. It appears that they are relations or landlord - tenant and that is why sale consideration is undervalued.
44. Lastly, Ex. R7 is also between relations because one of the two vendors is husband of vendee. All the parties are resident of same address. Therefore, even this sale is doubtful and it appears that being between relations it is not showing true market value. LAC No. 53/11/06 Page 13/30
45. In the case of Lal Chand Vs. Union of India & Ors. : 163 (2009) Delhi Law Times 299 (SC), it is held as under:
29. There would be lesser likelihood of rejection of a sale deed exhibited to prove the market value, if some witness speaks about the property which is the subject matter of the exemplar sale deed and explains its situation, potential, as also about the similarities or dissimilarities with the acquired land. The distance between the two properties, the nature and situation of the property, proximity to the village or a road and several other factor may all be relevant in determining the market value. 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.
46. Therefore, in the absence of vendor and vendee attesting witness, scribe of these sale deeds and in view of the fact that the sale deeds are between relations or where address of vendor and vendee is same which creates doubts about genuineness of sale considerations shown in these sale deeds, same cannot be relied upon to determine the market value of the land in question.
47. LAC rejected L&DO rates for determining market value of land in question for the reason that rates of larger land can't be the basis to determine market value of smaller land. However, there is no precedent where market value of larger tract of land is ignored to LAC No. 53/11/06 Page 14/30 determine market value of smaller piece of land. Law is rather to the contrary which is that sale price of a small piece of land cannot be relied upon to determine the market value of a large tract of acquired land. Therefore, reason given for rejection of L&DO rates for determining value of the land in question by LAC has no precedence.
48. Petitioner in this reference has claimed market value @ Rs. 40,000/ per sq. yds. However, in his written arguments he has restricted the relief to Rs. 21,195/ per sq. mtr. as this was the market rate fixed by DDA for the year 200405 in respect of same industrial land in Rewari Line Mayapuri Industrial Area where the land in question is situated.
49. Petitioner claims that when DDA took possession of its land under Section 17 of LA Act in the year 2004, the land was already developed as industrial area and therefore he claimed market value for a fully developed industrial area.
50. Petitioner has not given any evidence of extent of development existing on the land in question in the year 1991 when DDA took its possession without acquiring the land.
51. When DDA has developed the land into industrial land, petitioner cannot claim compensation for developed industrial area without having spent a single penny for development.
52. When statutory agency like DDA develops the land, cost incurred is much higher than cost incurred by private developers. LAC No. 53/11/06 Page 15/30 DDA has to provide waterlines, electricity lines, roads, drainage and land is to be leveled. However, as industrial plots are usually large (say of the size of one or two acres or more as contrasted with the size of residential plots measuring 100 sq. mtr. to 200 sq. mtr. ) and limited civic amenities are to be provided, cost of development will be ranging from 45% to 55%. If the acquired land is in a semi developed urban area, and not an undeveloped rural area, then the deduction for development may vary 25% to 40% as some basic infrastructure will already be available. The percentages mentioned above are tentative standard and subject to proof to the contrary. These are the observations of Hon'ble Supreme Court in the case of Lal Chand (supra). By this analogy, the cost of land in question would be Rs. 21,195 x 40/100 = Rs. 8,478/ and Rs. 21,195 - Rs. 8,478 = Rs. 12,717/ per sq. mtr.
53. In the case of Ajay Kumar vs. Government of NCT of Delhi : CWP No. 2109/08 dated 12.05.2011, Hon'ble High Court of Delhi had noted that a notification dated 23.02.2011 is issued by the Land and Building Department of Government of Delhi as per which it was notified that minimum rates for valuation of land and immovable properties (circle rates) shall henceforth be considered by the LAC as one of the factors for determining the compensation of the land under the provisions of the Land Acquisition Act.
54. Said notification is as under: LAC No. 53/11/06 Page 16/30 "Government of National Capital Territory of Delhi, Land & Building Department, B Block, Vikas Bhawan, New Delhi - 110 092 No. F.9(20)/80/L&B/L.A/15346 dated 23.02.2011 NOTIFICATION No. F.9(20)/80/L&B/L.A., The Government of National Capital Territory of Delhi is pleased to notify that the minimum rates for valuation of land and immovable properties (circle rates) shall henceforth be considered by the Land Acquisition Collector as one of the factors for determining the compensation of land under the provisions of the Land Acquisition Act, 1894 (1 of 1894). The Land Acquisition Collector may, by recording reasons in writing, determine the compensation based on other factors, if he is satisfied that circle rates are not serving as an effective factor for determining the compensation of land acquired through award under the said Act.
BY ORDER AND IN THE NAME OF THE LIEUTENANT GOVERNOR OF THE NATIONAL CAPITAL TERRITORY OF DELHI.
(Vinay Kumar) Addl. Secretary (L&B)"
55. In this judgment, the Hon'ble High Court of Delhi directed that this notification would apply to acquisition proceedings which were initiated prior to the date of this notification but a reference or appeal is pending before the Competent Courts as such a reference or appeal is in continuation of the acquisition proceedings. The circle rates came into force w.e.f. 18.07.2007. LAC No. 53/11/06 Page 17/30
56. Since there is a time gap between notification under Section 17(1) of L.A. Act which is dated 12.08.2004 and coming into force of the circle rates on 18.07.2007, market value can be ascertained by reducing the circle rate @ 12% per annum for a period of 35 months. As per this calculation, market value would be 13700x35/100 = 4795. When Rs. 4,795/ are reduced from Rs. 13,700/, the market value would be = Rs. 8,905/ per sq. mtr. which will be 210 x 8905 = Rs. 18,70,050/.
57. Preference will be given for determining market value in this case upon circle rates than schedule of market rates (i) because it is the mandate of Hon'ble High Court in order noted above (ii) Schedule of market rates were prepared w.e.f. 1998 and are 6 years old when compared to date of notification under Section 4 of Act which is dated 27.05.2004. On the other hand, circle rates came into force w.e.f. 18.07.2007 and by reducing the circle rates @ 12% per annum for a period of 35 months, more realistic rates can be ascertained than by giving escalation to schedule of market rates for 6 years i.e. from 01.04.98 to 27.05.04.
58. Even after deducting 40% of charges for development cost, market rate fixed by DDA for land in Rewari Line Mayapuri Industrial Area can't be followed because it involves guess work for development charges.
59. Resultantly, market value of land in question is LAC No. 53/11/06 Page 18/30 determined @ of Rs. 8,905/ per sq. mtr. and total compensation payable for 250 sq. yds. or 210 sq. mtr. would be Rs. 18,70,050/.
60. In a case of this type, interest can be claimed only w.e.f. date of notification under Section 17(1) of the Award and not from date of dispossession prior to acquisition. Prior to notification under Section 17(1) of LA Act, petitioner could have claimed rent / damages as provided by Hon'ble Supreme Court in the case of RL Jain (Supra) which is neither assessed by LAC nor claimed by petitioner in this reference.
61. Issue No. 3 : Relief: Though the written statement of DDA is prepared mechanically but there is an objection in para 3 that reference petition is barred by limitation. Said objection is as under: "3. That the present reference petition is barred by the period of limitation and hence the same is not maintainable."
62. Petitioner was conscious of this likely objection. Therefore, the petitioner had already pleaded in the reference petition in para 11 as under: "11. That the petitioner was not present at the time of announcement of the said award and came to know about the said award through notice dated 27/12/2005 under section 12(2) of the Land Acquisition Act hereinafter further referred to as "The Act". Further, after the receipt of the said notice, the petitioner applied for the certified copy of the award which was delivered to the petitioner LAC No. 53/11/06 Page 19/30 in the first week of the January, 2006. From the said attested copy of the award, the petitioner came to know about the contents of the award which were not in the knowledge of the petitioner at the time when the said award was announced / made as such. In view of the said facts, the present reference petition is with in time."
63. There is no issue visavis limitation.
64. However, under Section 3 of the Limitation Act, Court has to see whether suit is within limitation or not even if there is no objection to limitation in written statement of defendant.
65. In this reference petition, DDA has taken objection of limitation.
66. Section 3 of Limitation Act is as under: "3. Bar of Limitation - (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence."
67. Petitioner cannot be said to be taken by surprise on the question of limitation because even in the absence of issue of limitation, petitioner has led evidence to show that the reference is within limitation.
68. Petitioner has stated in his evidence by way of affidavit in para 10 as under: "10. That the Land Acquisition Collector in total LAC No. 53/11/06 Page 20/30 disregard of the said Standing Instructions announced Award No. 9/0506 on 26.12.2005 in which the land was not assessed even as per the L&DO rates for commercial or residential properties as per the whims and fancies of the LAC in an arbitrary manner. While assessing the market value as per the said award, the Land Acquisition Collector has even ignored the mode of calculation vide which the 80% of the estimated compensation was assessed earlier on the basis of L&DO rates which was even paid to me on 18.10.2004 before the announcement of the award. I was not present at the time of announcement of the award and I came to know about the announcement of the award through notice dated 27.12.2005 under Section 12(2) of the LA Act. Thereafter I applied for the certified copy of the award which was delivered to me in the first week of January, 2006 and from the attested copy of the award I came to know about the essential contents of the award which were not in my knowledge earlier. Thereafter I filed the present reference petition which is within time. Copy of notice under Section 12(2) of the L.A. Act is Ex. PW1/4. Copy of application filed by me for certified copy of the said award is Ex. PW1/5. Attested copy of the award supplied to me by the LAC is January, 2006 is Ex. PW1/6."
69. Petitioner has addressed arguments on the point of limitation. Para 5 of the written arguments of petitioner is as under: "5. That thereafter the award in question i.e. Award No. 09/200506 dated 06.12.2005 was announced (Ex.R1). At the time of announcement of the award, the petitioner was not present and as such a notice, after the LAC No. 53/11/06 Page 21/30 announcement of the award, under Section 12(2) of the Act dated 27.12.2005 had been sent to the petitioner by the Land Acquisition Collector (Ex. PW1/4 Page195). The petitioner thereafter applied for the certified copy of the award and got the same on 02.01.2006. (Ex. PW1/6 Page 197 to 203). After going through the contents of the award the petitioner was shocked to see that in the award the market value of the land was fixed at much lower rate i.e. at Rs. 864/ per sq. yds. only which is less than the rate on which the land was earlier assessed at the time of taking over the possession of the land on papers i.e. as per L&DO rates for residential properties of Rs. 6930/ per sq. mtr. After coming to know the contents of the award the present reference petition was filed on 09.05.2006 which is within time. (AIR 1963 SC 1604 and AIR 1988 GUJ 223). The petitioner vide his claim under Section 9 (1) of the Act claimed compensation at the rate of Rs. 40,000/ per sq. mtr. (Ex. PW1/3 Page 191193).
70. Therefore, even in the absence of an issue on limitation, question of limitation is now taken up and it will not cause any prejudice or it cannot be said that petitioner was caught unaware because petitioner has pleaded all the facts available with him to show that reference is within limitation, petitioner has produced all the relevant evidence to show that the reference is within limitation and has addressed arguments on the limitation in written arguments and has supported his arguments on limitation by citing judgments.
71. Reference Court can see the limitation in a reference LAC No. 53/11/06 Page 22/30 under Section 18 of LA Act is clear from Officer on Special Duty (Land Acquisition) Vs. Shah Manilal Chandulal: 1996(9) SCC 414 and Mohammed Hasnuddin Vs. State of Maharashtra : AIR 1979 SC 404.
72. Period of limitation for filing a reference under Section 18 is provided in sub Section (2) and it reads as under: "Section 18. (2) The application shall state the grounds on which objection to the award is taken:
Provided that every such application shall be made -
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub section (2), or within six months from the date of the Collector's award, whichever period shall first expire.
73. Petitioner was neither present nor represented before the LAC when the award was passed. Therefore, clause (a) of Sub Section 2 has no applicability.
74. Clause (b) has two contingencies which are (i) if the person making reference had received a notice under Section 12(2) of the LA Act, in that event reference has to be preferred within 6 weeks of receipt of notice or (ii) the reference has to be filed within six months from date of the Collector's award.
LAC No. 53/11/06 Page 23/30
75. Period of six months is to be computed from the date essential contents of award came to the knowledge of the applicant making reference under Section 18 of LA Act. Reference can be made to:
1. Raja Harish Chandra Raj Singh Vs. The Dy. Land Acquisition Officer: AIR 1961 SC 1500.
2. Bharat Chand Dilwali Vs. Union of India : 1988 Rajdhani Law Reporter 224.
76. Petitioner was served with a notice under Section 12(2) of LA Act on 27.12.05. Six weeks (42 days) expired on 07.02.05. This reference is filed on 09.05.05. Therefore, same is barred by limitation.
77. Petitioner has stated that he came to know about the essential contents of award on 02.01.2006 when he applied and got certified copy of award.
78. Even if period for limitation is to commence from this date i.e. 02.01.2006, 42 days lapsed on 13.02.06. Reference is filed on 09.05.05. Hence, it is barred by limitation.
79. Argument of petitioner that limitation should commence from 02.01.06 and period of six months should be given from date of knowledge of essential contents of award is contrary to statute which provides six months limitation only to such a person who was neither present nor represented before LAC when award was LAC No. 53/11/06 Page 24/30 passed and who was not given notice under Section 12(2) of LA Act.
80. Period of six months is not provided to one who was present or was represented when LAC announced the award. Period of limitation for such a person in six weeks only.
81. Similarly, period of six months is not provided to one who was served with a notice under Section 12 (2) of LA Act. Period of limitation for such a person is six weeks from the date of service of notice.
82. Even if limitation is counted from the date when petitioner came to know essential contents of the award i.e. 02.01.2006, still period of limitation would remain six weeks and not six months. Therefore, reference is time barred.
83. Petitioner has relied upon (i) State of Punjab, Appellant v. Mst. Qaisar Jehan Begum and another, Respondents : AIR 1963 SC 1604 (ii) Ishbhai Umarbhai, Petitioner V. State of Gujarat and another, Respondents: AIR 1988 SC 223 in support of his contentions that petition is within limitation.
84. In case of Mst. Qaisar Jehan Begum, petitioners were not given notice under Section 12(2) of LA Act. This fact distinguishes the said judgment from the facts of this reference. Here, petitioner was served with notice under Section 12 (2) of LA Act on 27.12.05 and had received certified copy of award on 02.01.06 but LAC No. 53/11/06 Page 25/30 reference was filed on 09.05.05. Petitioner cannot be given six months from the date of receiving notice under Section 12 (2) of LA Act / receiving certified copy of award. In such an event, period of limitation is six weeks otherwise legislature would have provided for a period of six months for all the three eventualities i.e. six months from the date petitioner comes to know essential contents of award even if he was present or represented when award was passed; six months from the date of knowledge of essential contents of award even if petitioner was served with notice under Section 12 (2) of LA Act and again six months to be computed from the passing of award meaning knowledge of essential contents of award in case applicant was neither present when award was passed nor was served with the notice under Section 12 (2) of the L.A. Act.
85. Second case of Ishabhai Umarbhai is also distinguishable because in that case also neither the petitioner was served with a notice under Section 12 (2) of LA Act nor he had taken certified copy of award unlike this case where petitioner was served with notice under Section 12 (2) of LA Act and had also received certified copy of order more than six weeks before filing the reference.
86. Essential contents of award are also mentioned in notice under Section 12(2) of LA Act. It mentions (i) name of village Nangal Raya where land was situated, (ii) purpose of acquisition i.e. LAC No. 53/11/06 Page 26/30 Planned Development of Delhi - Rewari Railway Line Industrial Area Mayapuri, PhaseII, (iii) notification under Section 4 of LA Act No. F 9(69)2003/L&B/LA 3284 dated 27.05.2004, (iv) notification under Section 6 of LA Act No. F9(69)/2003/L&B/LA/8249 dated 12.08.2004, (v) notification under Section 17 of LA Act No. F 9(69)/2003/L&B/LA/8250 dated 12.08.2004 (vi) date of award 26.12.05 (vii) amount of compensation offered. (Petitioner was given 80% of estimated compensation Rs. 15,06,521/ and was asked to refund excess compensation of Rs. 11,83,367.21 which showed compensation awarded by Collector was Rs. 3,23,159.79).
87. In the case of Bhagwan Dass v. State of Uttar Pradesh: 2010 (3) SCC 545, it is held by the Hon'ble Supreme Court in para 28 that: "28. The following position therefore emerges from the interpretation of the proviso to Section 18 of the Act:
(i)
(ii)
(iii)
(iv) If a person interested receives a notice under Section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice under Section 12(2) of the Act was the date of knowledge of the contents of the award."
88. In the case of Mahadeo Bajirao Patil v. State of LAC No. 53/11/06 Page 27/30 Maharashtra : (2005) 7 SCC 440, in para 11 and 12, it is held as under: "11. It is by now well settled that notice under Section 12(2) of the Act is a clear intimation of making of the award requiring the owner or person interested to receive the compensation awarded under Section 11 of the Act. It is not necessary that the notice should contain all the details of the award including the consideration by the Land Acquisition Collector and its manner of determination of the compensation. No particular form is prescribed by the Act or the rules.
12. In the case of State of Punjab v. Satinder Bir Singh this Court held : (SCC p. 332, para 8).
"8. The question then is whether the notice under Section 12 (2) is a valid notice. From a conjoint reading of Section 11 and 12, it is clear that notice is only an intimation of making of the award requiring the owner or person interested to receive the compensation awarded under Section 11. On receipt of the notice, if the person interested receives compensation without protest, obviously no reference need be made. The determination of compensation becomes final and binds the parties. When he receives the compensation under protest as contemplated under Section 31 of the Act, the need to make the application for reference under Section 18(1) would arise. At that juncture, it will be open to the person interested either to make an inspection of the award which was conclusive between him and the Collector by operation of Sub Section 1 of Section 12, or seek a certified copy of the award from the Collector and the contents. Thereon he could make necessary objection for LAC No. 53/11/06 Page 28/30 the determination inter alia, of compensation for the land. It is not necessary that the notice should contain all the details of the award including his consideration and its manner of determination of the compensation as opined by the learned Judge of the High Court. It is not incumbent that the person interest should immediately make the reference application on his compensation under Section 31.
In other words, receipt of amount and the making the reference application are not simultaneous. The statutory operation of limitation mentioned by Section 18 (2) does not depend on the ministerial act of communication of notice in any particular form when the Act or rules has not prescribed any form. The limitation begins to operate from the moment the notice under Section 12 (2) of LA Act is received or as envisaged by Section 18 (2).
89. In the case of Land Acquisition Officer v. Shivabai & Ors. : (1997) 9 SCC 710, it is held that: It is now settled law that it is not necessary that the award or its copy should be served on the claimant alongwith notice under Section 12 (2) of the Act.
90. In Poshetty v. State of A.P. : (1996) 11 SCC 213, it was held that when such interested person who was present personally or through the representative at the time of making the award, is not required to be supplied the copy of the award, it cannot be contended that the award should be served along with notice to a person who was not present.LAC No. 53/11/06 Page 29/30
91. Therefore, reference is dismissed being barred by limitation.
92. Decree be prepared in terms of this order. Copy of order be sent to LAC (SW) and file be consigned to record room.
Announced in the open Court on the 12th day of October, 2011 (ARUN BHARDWAJ) ADDL. DISTRICT JUDGE DWARKA COURTS: NEW DELHI LAC No. 53/11/06 Page 30/30