Delhi District Court
Dharamvir vs . Uoi on 9 January, 2007
-:1:- LAC No. 145/94
Dharamvir vs. UOI
IN THE COURT OF A.K.MENDIRATTA, ADDITIONAL
DISTRICT JUDGE : DELHI
LAC No. 145/94
1. Sh.Dharamvir
S/o Sh. Shivlal
R/o Village Aali, P.O. Badarpur,
New Delhi .........Petitioner
VERSUS
1.Union of India
Through Land Acquisition Collector,
Delhi.
2.National Thermal Power Corp.
Through its General Manager
Badarpur, New Delhi. .........Respondents.
Village : AALI
Award No. : 9/94-95
Date of notification u/s 4 : 16.10.92
JUDGMENT
1. Petitioner's land as referred in statement u/s 19 of the Land Acquisition Act (herein after to be referred as the said Act) was acquired for construction of Ash pond of Badarpur Thermal Power Station vide Award no. 9/94-95 by the government by following due procedure as prescribed under the said Act. The land was notified under section 4 of the LA Act on16.10.92 which was followed by a declaration under section 6 of the Act dated 23.3.93. After considering the claims filed by the interested persons pursuant to notices u/s 9 & 10 of the Act, LAC assessed the market value of Contd.....
-:2:- LAC No. 145/94Dharamvir vs. UOI the land @ Rs.4.65 lacs per acre on the basis of the policy of Government of Delhi dated 03.5.90 whereby minimum price of agricultural land was fixed @ Rs. 4.65 lacs per acre w.e.f. 27.4.90.
LAC observed that the land under acquisition is not developed and public facilities such as roads, parks, schools, dispensaries, etc are not available. He further noted that no Award had been recently passed in village. Reference was further made to awards passed in village Jaitpur which is quite adjacent to village Aali, namely award no. 2/90-91 involving date of notification u/s 4 on 22.6.89, Award no. 3/91-92 involving date of notification u/s 4 on 10.10.90, Award no. 6/91-92 involving date of notification u/s 4 on 30.5.90, Award no. 1/94-95 involving date of notification u/s 4 on 16.10.92 wherein the rate of land was fixed by the LAC on the basis of policy of Government of Delhi dated 03.5.90 @ Rs. 4.65 Lacs per acre. LAC also referred to three sale deeds dated 04.2.92 executed in village Aali and assessed the market value of land @ Rs. 4.65 Lacs per acre or Rs. 96,875/- per bigha.
2. Dis-satisfied by the land rates assessed by the LAC, petitioner preferred a reference petition u/s 18 of the LA Act which was in turn forwarded by the LAC for assessment by the Reference Court.
The case of the petitioner is that LAC erred in fixing the market value of the land on the basis of policy of Government of Contd.....
-:3:- LAC No. 145/94Dharamvir vs. UOI Delhi w.e.f. 26.4.90 without giving any enhancement till date of notification u/s 4. It was further submitted that land had a potential value and is fit for residential and industrial purposes and adjacent to Faridabad, Sarita Vihar and Badarpur plant colonies. The land is also stated to be provided with essential amenities of life like road, transport, etc. The compensation was accordingly claimed @ Rs.4000/- per sq. yard alongwith other benefits.
3. In the W/S, filed on behalf of Union of India it was submitted that the assessment made by the LAC was adequate and just. It was further submitted that petitioner had not preferred a claim in response to notice issued by LAC u/s 9 & 10 of the Act. In the replication the averments made in the reference were reiterated and reaffirmed and those made in the W/S were denied.
Similar stand was adopted by NTPC.
4. On the pleadings of the parties following issues were framed :-
ISSUES:
1. What was the market value of the land at the time of issuance of notification u/s 4 of Land Acquisition Act ?
2. To what enhancement in compensation, if any, the petitioner is entitled ?
3. Relief.
Contd.....
-:4:- LAC No. 145/94Dharamvir vs. UOI
5. Petitioner in support of his case relied upon various awards, sale deeds and judgments which are detailed as under:-
Ex.P1/1 is copy of Award no. 1/96-97 of village Jasola.
Ex.P-1/2 is copy of judgment reported in 91 (2001) DLT 602 (DB) entitled Hari Chand Vs. UOI pertaining to assessment of land in village Tuglakabad notified u/s 4 on 1.6.92 @ Rs. 3000/- per sq. yd.
Ex.P3 is certified copy of sale deed dated 28.2.96 whereby one bigha of land was sold for consideration of Rs.
4,90,000/- in village Aali.
Ex. P4 is certified copy of sale deed dated 23.2.96 whereby one bigha of land was sold for consideration of Rs.
4,20,000/- in village Aali.
Ex.P5 is copy of judgment passed in RFA No. 601,603, 604/92 entitled Anil Kumar Sharma vs. UOI pertaining to village Kondli whereby the rate of land notified u/s 4 on 17.11.80 and 25.2.81 was assessed @ Rs. 345/- per sq.yd.
Ex. P6 is copy of judgment passed in RFA no.
781/90 entitled Rameshwar Solanki Vs. UOI whereby rate of land notified u/s 4 on 27.1.84 in village Palam was assessed @ Rs. 47,224/- per bigha.
Contd.....
-:5:- LAC No. 145/94Dharamvir vs. UOI Petitioner also examined four witnesses namely PW- 1 Sh.Ramesh Chand, LDC from DDA, PW-2 Sh.Mahinder Singh, PW-3 Sh.Bishamber Dayal and PW-4 Sh.Surinder Singh.
PW-1 Sh.Ramesh Chand, from the office of Sub- Registrar proved sale deed dated 28.2.96 (Ex. P4) executed w.r.t. sale of 1 bigha of land in village Aali by Mahinder Singh in favour of Sh.Arjun S/o Sh.Bishamber R/o Village Seelampur for consideration of Rs.4,90,000/-. He also proved sale deed dated 23.2.96 (Ex. P3) whereby 1 bigha of land in village Aali was sold by Sh.Bishamber Dayal & Ors. in favour of Surinder Singh for consideration of Rs. 4,20,000/-.
PW-2 Sh.Mahinder Singh deposed that he had sold 1 bigha of land in village Aali to Sh.Arjun for sum of Rs.4,90,000/- and had received the consideration in cash. During cross examination he deposed that he knew Arjun Singh 4-5 yrs. prior to the date of sale of land. He denied the suggestion that the sale transaction had been executed at higher rates to get more compensation as the villagers knew that land was likely to be acquired. He further stated that the sale consideration was received in 2/3 installments which he could not tell exactly and the same was not deposited in any bank account though he had a bank account.
PW-3 Sh.Bishamber Dayal deposed that land sold vide Ex. P3 (i.e. sale deed dated 23.2.96 involving sale of 1 bigha of Contd.....
-:6:- LAC No. 145/94Dharamvir vs. UOI land for consideration of Rs.4,20,000/-) was used by him for agricultural purposes. The sale deed was executed on 23.2.96 and the entire sale consideration was received in cash. During cross examination he deposed that he could not tell how many witnesses were there at the time of execution of sale deed but stated that they may be two or three. He further deposed that he had a bank account but did not deposit the money in the bank. He further stated that he did not made any declaration with the income tax authorities and had not taken any permission for sale of land in question. The deal is stated to be finalized through a mediator and the consideration is stated to have been paid on the same date in the registrar office. He denied the suggestion that the same had been executed to get more compensation for the acquired land.
PW-4 Sh.Surinder Singh deposed that he had purchased a piece of land measuring 1 bigha for consideration of Rs.4,20,000/- vide sale deed ex. P4 and the sale consideration was paid in cash. During cross examination he admitted that land was purchased after issuance of notification u/s 4 of LA Act on 16.10.92. He further admitted that land in question had no authorized or unauthorized colonies near the land in dispute. He also deposed that he had not filed on record any khasra girdawaris showing cultivation of crops on the land in question but denied that the land was banjar.
6. Respondents in support of their case filed Contd.....
-:7:- LAC No. 145/94Dharamvir vs. UOI photocopy of three sale deeds dated 04.2.92 which have been referred in the Award and the same were exhibited as Ex. R1 to R3.
Ex. R1 is sale deed dated 04.2.92 whereby 3 bigha 10 biswas of land (K.no. 9/2 & 10) in village Aali was sold for consideration of Rs.3,40,000/-.
Ex. R2 is sale deed dated 04.2.92 whereby 2 bigha 15 biswas of land (K.no. 12) in village Aali was sold for consideration of Rs.2,66,500/-.
Ex. R3 is sale deed dated 04.2.92 whereby 2 bigha 3 biswas of land (K.no. 11) in village Aali was sold for consideration of Rs.2,09,000/-.
7. I have heard Counsel for the petitioner, Counsel for UOI and perused the entire record. My issue-wise findings are as under:-
8. ISSUE NO. 1 & 2: Counsel for the petitioner has urged that the rate of land in the adjoining village Jasola was much more than assessed by the LAC and the same be taken into consideration while assessing the value of land in the present case. It is also submitted that the rate of land even in village Jaitpur which is further far away from village Aali and is not adjoining the main road, has been assessed at higher rates in Award no. 1/94-95 involving the same date of notification u/s 4 i.e. 16.10.92.
Contd.....
-:8:- LAC No. 145/94Dharamvir vs. UOI Counsel has further vehemently urged that the sale deeds relied upon by the respondents do not reflect the true market value of the land as the land which is the subject matter of the aforesaid sale deeds had been notified u/s 4 of LA Act on 06.4.64 and the possession of the same has even been taken subsequently on 28.7.04 in Award no. 3/97-98 (Suppl.). Counsel has also referred to 2002 (64) DRJ 226 (DB) entitled Bhuley Vs. UOI, AIR 1975 Supreme Court 1670 entitled Dollar Company Vs. Collector of Madras and 65 (1997) Delhi Law Times 512 (DB) Delhi High Court entitled Smt. Jaswant Kaur Vs. The Lt. Governer & Ors.
9. On the other hand counsel for UOI has vehemently urged that the bonafides of the sale deeds relied upon by the respondents cannot be doubted since there was no bar in execution of the sale deeds as the proceedings initiated for acquisition were stayed as per the orders passed by the Hon'ble High Court, which were vacated on 14.12.95 in Civil Writ Petition no. 562/83 & 563/83. It is also urged that the transactions were between the private parties and there is no occasion that the same could have been fabricated. It is urged that the rate of land has been correctly assessed by the LAC.
10. It is settled law that the best piece of evidence to assess the market value of acquired land in the village are the Contd.....
-:9:- LAC No. 145/94Dharamvir vs. UOI instances of sale of land in the same village and the other material depicting the market value in the same village may also be helpful. In absence of any such material, reliance can be placed on instances of prices of land in adjoining villages subject to the condition that the potentiality, location and nature of land in the adjoining villages is comparable.
11. In the case of Shakuntalabai (Smt) & Ors. Vs. State of Maharashtra, reported as (1996) 2 SCC 152, their Lordships have categorically observed that when on record there is evidence of the value of the acquired land itself, then it is unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent land. The relevant portion of the said judgment reads as under:-
'It is seen that if there is evidence or admission on behalf of the claimants as to the market value commanded by the acquired land itself, the need to travel beyond the boundary of the acquired land is obviated. The need to take into consideration the value of the lands adjacent to the acquired land or near about the area which possessed same potentiality to work out the prices fetched therein for determination of market value of the acquired land would arise only when there is no evidence of the value of the acquired land. In a case where evidence of the value of the acquired land itself is available on record, it is unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent Contd.....- : 10 : - LAC No. 145/94
Dharamvir vs. UOI lands.'' Since the instances of sale in land in village Aali referred by respondents are available the sale prices of the land in village Jasola, Tuglakabad and Kundli is not required to be looked into. Further it has not been proved on record incase the potentiality and quality of land in village Jasola and Tuglakabad is the same as that of village Aali and as such the sale deeds pertaining to aforesaid villages cannot be relied upon to assess the market value in village Aali. It has further come on record in other references pertaining to same award that village Madanpur Khadar is located between village Jasola and Ali and distance between 2 villages is about 3 km. Further Mathura Road is stated to be about 6 km from the acquired land.
Even village Tuglakabad is more beneficially located than village Aali. For the foregoing reasons, the rate of land in village Jasola and Tuglakabad can not be compared to assess the rate of land in village Aali and Ex.P1/1, ½ and Ex.P5 are not relevant.
It may also be observed that the acquired land on the date of notification u/s 4 was being utilized for agricultural purposes and no electrical and municipal connection for water was available.
Even the purpose of acquisition in adjacent land, falling in village Jaitpur was for construction of ash pond and as such there could not have been any substantial appreciation of prices, as no building Contd.....- : 11 : - LAC No. 145/94
Dharamvir vs. UOI activities could have taken place. In view of above, the land in villageAali cannot be compared with village Jasola and Tuglakabad.
12. The next question for consideration is whether the sale deeds Ex. R1 to R3 relied upon by the respondents which have been referred in the Award can be considered as reliable and indicate the prevalent market value of the land.
The respondents have pointed out that the land involved in the aforesaid 3 sale deeds was already notified u/s 4 on 06.4.64 and even the Award with respect to the same has been passed vide Award no. 3/97-98 (Suppl.) and the possession has been taken in 2004. It is vehemently contended that since the land already stood notified u/s 4 the title of the same could not have been validly passed. It is submitted that the same were undervalued and do not depict bonafide transactions indicating the prevalent market value.
On the other hand counsel for UOI has urged that the aforesaid sale deeds had been executed for due consideration and since the proceedings for award had been stayed by the Hon'ble High Court which were subsequently vacated in 1995 there was no bar for the parties to enter into the sale transactions, which also constituted of a built up area.
In my considered view the fact that the land stood notified u/s 4 restrains the parties from entering into any sale transaction. The consideration in such circumstances wherein the land Contd.....
- : 12 : - LAC No. 145/94Dharamvir vs. UOI has been notified u/s 4 of LA Act is bound to be lower than the transactions involving the land free from any such limitations. I am therefore, of the view that Ex. R1 to R3 executed about 8 months prior to notification u/s 4 may not reflect the correct value of land.
13. The counsel for the petitioner has also relied upon sale deeds Ex.P3 and P4 i.e sale deeds dated 28.2.96 and 23.2.96 in village Ali whereby 1 bigha of land in village Aali was sold for consideration of Rs. 4,90,000/-and 4,20,000/- respectively. At the outset it, may be observed that the said sale deeds are not revelant in the present case as they have been executed about more than 3 years later than the date of notification u/s 4 in the present case. Further the testimony of PW-3 Sh.Bishambar Dayal who was vendor in sale deed dated 23.2.96 reveals that the entire transaction had been paid in cash even without any declaration with the income tax authorities. The transaction does not inspire any confidence since the amount was not tendered by cheque or drafts in accordance with law. Similarly the sale deed dated 28.2.96 does not inspire confidence as the transaction in aforesaid case was also in cash as deposed by PW-4. It may be observed that land in village Ali has been under acquisition in subsequent awards and it cannot be ruled out that the transactions may have been entered to claim an enhanced value, as the proceedings for acquisition are known to the villagers on account of surveys taken in advance in the village, much prior to date of notification u/s 4.
Contd.....
- : 13 : - LAC No. 145/94Dharamvir vs. UOI
14. It may be noted that no appreciation in market value of land has been granted by LAC for a period of about 29 months and 19 days (from 27.4.90 till 16.10.92 {(i.e. date of policy of Government of Delhi till date of notification u/s 4)}.
The trend of fixing prices in Delhi has been duly noticed in 2002 (VI) AD (DELHI) 315 entitled Delhi Simla Catholic Archdiocese Vs. Union of India and another, in para 12, by Hon'ble Delhi High Court as under :-
Judicial notice can be taken of the fact that there has been rise in market prices of the lands in and around Delhi ever-since the land came to be acquired by successive notifications issued for development of Delhi. In fact prices started rising immediately after partition of the country because of the influx of refugees, who wanted to settled in India. The first acquisition in large scale took place when notification itself for Planned Development of Delhi had the effect of rise in market values of the land. Delhi thereafter had been expanding resultantly putting more and more pressure on lands, which still remained un-acquired. Thereafter there have been series of notifications issued. Prices increased by leaps and bounds. In the absence of any other material as regards sale instances of similar lands, this Court adopted various principles to arrive at fair market value for a subsequent period when for earlier period market value is already determined finally either by this Court or by the Supreme Court. Earlier principle followed was to allow an increase at the rate of Rs.1,000/- per years. Discarding the said Contd.....- : 14 : - LAC No. 145/94
Dharamvir vs. UOI principle, appreciation was allowed in subsequent judgments on percentage basis ranging from 6% to 12% p.a. Choice at which rate increase is to be allowed depends upon number of circumstances including the locality where the land is acquired, the period of acquisition etc. Considering the locality and its importance, we are of the view that an increase at the 12% per year over the base rate of Rs.19,000/- per bigha as on 13.11.1959, fair market value can be worked out for the lands, which were acquired through the two notifications issued on 4.4.1964. Allowing such an increase in the absence of any other material, is an established method, which has also been followed even by Supreme Court in Gokal Vs. State of Haryana AIR 1992 S.C. 150 wherein increase by 50% was allowed for a period of three years.
Allowing an increase of 12% p.a. From the market value of Okhla land as on 13.11.1959, we are of the view that fair market value as on the date of the two notifications i.e. 4.4.1994 and 6.4.1994 for the land situate in Okhla will be Rs.29,025/- per bigha.
Reference in this regard may also be made to Rameshwar Solanki & Anr. vs. UOI & Anr. 57, (1195) DLT 410, Bedi Ram Vs. UOI &Anr. 93 (2001) DLT 150 (DB).
15. The rate of land also appears to have been fixed by the Government even for the subsequent years after granting an appreciation @ of 10 to 12% p.a, as per policies dated 03.5.90 (w.e.f. 274.90 @ Rs.4.65 lacs per acre), 25.7.97 (w.e.f. 01.4.97 @ Rs.10 lacs per acre), 24.9.98 (w.e.f. 01.4.98 @ Rs.11.20 lacs per acre), Contd.....
- : 15 : - LAC No. 145/94Dharamvir vs. UOI 10.9.01 (w.e.f. 01.4.99 to 31.3.01 @ Rs. 12.16 lacs and 13.82 lacs per acre), 09.8.01 (w.e.f. 01.4.01 @ Rs.15,70,000/- per acre), 30.8.05 (w.e.f. 30.8.05 @ Rs.17,58,400/- per acre) keeping in view the trend of rising prices. The appreciation of prices has been wrongly denied by the LAC from 27.4.90 to 16.10.92 i.e date of notification u/s 4 of LA Act, since there is no reliable evidence on record to show that the prices remained stagnant contrary to the rates fixed by the government as per policies for later years adopting an increase @ 10% -12%, as referred to above. I am therefore of the view that the market value of land situated in village Ali be assessed after giving appreciation @ 12% p.a for about 29 months by approximation ( in place of 29 months and 19 days) to arrive at just and fair market value of acquired land. Accordingly, by taking base value @ Rs.4.65 lacs p.a. on 27.4.90 and by giving appreciation of 12% per annum for a period of 29 months, the market value of acquired land would be Rs.5,99,850/- per acre.
At this stage, it may also be appropriate to refer to another contention urged on behalf of petitioner that appreciation be granted from 2.6.89 instead of 27.4.90,considering that the assessment of land was made in village Jaitpur @ Rs.4.65 Lacs per acre in award no. 2/90-91 involving date of notification u/s 4 on 2.6.89.
I may observe that in Dayal Singh Vs. UOI, LAC no. 14/01, decided by this court on 28.2.05 the rate of land in village Jaitpur acquired vide Award No. 2/90-91 involving date of Contd.....
- : 16 : - LAC No. 145/94Dharamvir vs. UOI notification u/s 4 on 02.06.89 has been assessed @ Rs. 4.65 lacs per acre. The land in aforesaid village was also acquired for purpose of ash pond for BTPS. The rate assessed by this court has been upheld in appeal by the Hon'ble High Court. However, it may be noted that in the aforesaid case the government had agreed to the demand of the petitioners / villagers to grant the value of land as per the policy of Government of Delhi effective from 27.4.90 for the land notified u/s 4 on 02.6.89. In my considered view the basis of assessment w.e.f. 02.6.89 cannot be adopted for other villages as the concession for extending the rates fixed as per policy dated 3.5.90 for assessment of land in village Jaitpur was extended by the Government only as an exception. The same cannot be extended to base the value uniformly in all other villages from 2.6.89. Further it may also be observed that no evidence has come on record to show that the rate of land in village Aali was about 4.65 Lacs per acre on 2.6.89.
I, therefore, assess the fair value of land as on 16.10.92 after giving an appreciation for a period of 29 months as already discussed above @ Rs.5,99,850/- per acre. The issue is accordingly decided.
I have already assessed the market value of the land on the aforesaid rates in LAC no. 147/94 entitled Hari Chand Vs. UOI decided on 22.12.06 and find no grounds to differ from the same.
16. RELIEF: In view of findings on issue no.
Contd.....
- : 17 : - LAC No. 145/94Dharamvir vs. UOI 1, I am of the view that petitioners are entitled to compensation @ Rs.5,99,850/- per acre. Besides this petitioners are also entitled to 30% solatium on the market value of land fixed in this case. Petitioner shall also be entitled to interest on the enhanced amount/ compensation awarded by this court under section 28 @ 9% per annum from the date of award or dispossession whichever is earlier till the expiry of one year and thereafter @ 15% per annum till payment. Petitioner shall further be entitled to additional amount of 12% p.a. on the market value fixed in this case under section 23(1A) of the said Act from the date of notification under section 4 of the said Act till the date of dispossession or award whichever is earlier. Petitioner is further entitled to interest on solatium and additional amount in terms of judgment of Hon'ble Apex Court entitled Sunder vs UOI reported in DLT 2001 (SC) 569.
While making the calculations due regard shall be made to deduct the amount initially arrived at by the LAC to avoid any duplication. No orders as to costs.
17. A copy of this judgment be sent to the Land Acquisition Collector concerned for information . The petition stands disposed of accordingly. File be consigned to record room. Announced in the open court (A.K.MENDIRATTA) Dated : 09.1.07 Additional District Judge, Delhi.
Contd.....
- : 18 : - LAC No. 145/94Dharamvir vs. UOI LAC No. 09.1.07 Present : Sh.S.K.Verma, Adv. for the petitioner.
Sh.Sudershan Joon, Adv. for UOI.
Counsel submits that no further authorities is to be referred. Arguments concluded. Vide separate judgment reference is disposed off. File be consigned to Record Room.
(A.K.MENDIRATTA) ADJ : Delhi : 09.1.07 Contd.....