Delhi District Court
Sh. Bhuley (Deceased) vs Union Of India on 19 March, 2008
1
IN THE COURT OF SHRI YASHWANT KUMAR :
ADDITIONAL DISTRICT JUDGE (LAC) : DELHI
LAC No. : 192/1/07 AWARD NO : 1295/1962
Old No. : 30/96 VILLAGE : Badarpur, Delhi.
In the matter of :
1 Sh. Bhuley (deceased)
through his LRs
i Smt. Shanti Devi ] wife
ii Smt. Maya ] daughter
iii Sh. Vijay Singh ] son
iv Sh. Rajender Parshad ] son
v Sh. Raje Singh ] son
vi Sh. Raj Pal ] son
All residents of village Badarpur, New Delhi-44
2 Sh. Jagdish S/o late Sh. Ram Rikh
R/o village Badarpur, New Delhi-44
...Petitioners
Versus
1 Union of India
through Land Acquisition Collector,
(South), Office at DC Office Court Complex,
M. B. Road, Saket, New Delhi
2 Delhi Development Authority
through its Vice Chairman,
INA Market, Vikas Sadan, New Delhi
...Respondents
AWARD REFERENCE U/S 28A (3) OF THE LAND ACQUISITION ACT, 1984 1 Vide notification No.F.15(245)/60/LSG dated 10.11.1960 U/s 4 of the LA Act (hereinafter referred to as the ACT) and declaration was also made vide notification No. F.1(23)/61-L&H(ii) dated 28.12.1961 U/sec. 6 of the LA Act, the land of the petitioners situated in the revenue estate of village Badarpur, Delhi was acquired by the Govt. for Planned Development of Delhi. The Land Acquisition Collector (hereinafter referred to as LAC) 2 after completing all the requirements as provided under the Act, announced the award bearing No1295/1962 and awarded the compensation of the land in question @ Rs.500/- per bigha. However, the petitioners filed an application u/sec. 28 A of the LA Act for re- determination of compensation of the land in question on the basis of the judgments of the reference court. Vide award/ order dt. 19.05.1995, the LAC re-determined the compensation @ Rs.10,000/- per bigha besides statutory benefits.
2 Feeling dissatisfied with the benefits and interests awarded by the LAC, the petitioners herein filed reference petition U/s 28 A (3) of the LA Act for proper adjudication/determination of the benefits as provided under the Act of the acquired land which was sent to the reference court. 3 In this reference petition u/sec. 28-A (3) of the LA Act, the petitioners have sought for determination of benefits of additional amount and interest on the grounds that the land of the petitioners bearing khasra nos.7/22/1 (4-14), 7/23/1 (0-8), 10/2/1 (1-12) to the extent of their shares in the land situated in the revenue estate of village Badarpur, New Delhi was acquired vide the aforesaid award. The petitioners have not filed any reference petition u/sec.18 of the LA Act, therefore, the petitioners have filed the reference petition u/sec. 28A of the LA Act in respect of their aforesaid land acquired through the said award on the basis of the judgment passed by the then Ld.ADJ, Delhi on 26.05.1992 in LAC No.18 of 1992 titled Duli Chand Vs UOI in which the compensation was awarded @ Rs.10,000/- per bigha in addition to solatium @ 30% p.a. on the market value of the land. Additional amount of 12% p.a. on the market value from 3 the date of notification u/sec. 4 of the Act to the date of award or date of taking over the possession whichever is earlier. The petitioners were further granted interest u/sec. 28 of the Act from the date of award or possession whichever is earlier @ 9% p.a. for one year and thereafter @ 15% p.a. till the date of payment of compensation in the court. It is also stated that the above benefits were granted by the then Ld.ADJ, Delhi in the light of judgment passed by the Hon'ble Supreme Court of India in the case of UOI Vs Zora Singh and others in Civil Appeal No.4668 of 1991 and reported in judgment today 1991 (4) SCJ 3 and the said judgment passed by the Hon'ble Supreme Court of India is final and binding on the parties. 4 It is further stated by the petitioners that after hearing the parties to the present petition, the LAC (ME), Delhi vide his order dt. 19.05.1995 passed an award of Rs.10,000/- per bigha in favour of the petitioners in respect of the land in question. In addition to the aforesaid market value, the LAC also allowed solatium @ 30% on the market value and interest @ 9% p.a. on the enhanced compensation from the date of taking over the possession of the land to the date of payment. Therefore, no sufficient ground for not allowing additional amount @ 12% p.a. has been given in the order dt. 19.05.1995 of the LAC. The LAC has failed to appreciate the finding of the then Ld.ADJ, Delhi in LAC No.18 of 1992. The LAC has not further appreciated the facts and law of the land as per the decision of Hon'ble Supreme Court of India in not allowing the additional amount @ 12% p.a. U/sec. 23 (1-A) of the LA Act from the date of notification u/sec. 4 of the Act to the date of award or possession whichever is earlier. The LAC has also failed to appreciate that the UOI has not preferred an appeal so far against the judgment dt. 26.05.1992 passed in 4 LAC No.18 of 1992 by the then Ld.ADJ, Delhi against the grant of additional amount @ 12% and against the grant of interest U/sec. 28 of the Act @ 15% p.a. after one year. The LAC did not take into consideration the judicial pronouncement of the Hon'ble Supreme Court of India in case Zora Singh Vs UOI. In the said case, the Hon'ble Supreme Court has discussed the matter in length in respect of grant of solatium, additional amount and interest. On these grounds among others, the petitioners have filed the present reference petition.
5 The UOI, in its reply, has raised the objections on the ground that the present petition is time barred and the same deserve to be dismissed on this count. The petitioner is not entitled to solatium @ 30% on the market value of the land u/sec. 23 (2) and additional amount @ 12% u/sec. 23 (1-A) of the Act in view of the judgment entitled K.S.Paripooran Vs State of Kerala & Ors. Moreover, in this case, the award pertains to the period prior to the amendment dt. 30.04.1982 in the Act. All other averments made in the petition U/Sec. 28A of the LA Act have been denied except matter of record. Despite opportunities given, the counsel for DDA has not filed written statement/reply, therefore, the right for filing of the reply to the petition u/sec. 28 A of the LA Act by the counsel for DDA was closed on 27.02.2008.
6 This reference petition was adjourned sine die vide the order dt. 10.07.1996 of the Ld. Predecessor Court. However, upon the application of the petitioners, this reference petition was revived to its original number vide order dt. 25.10.2007 of this reference court. During the pendency of this reference, Sh.Bhule/ petitioner no.1 had expired on 23.05.1998. Vide 5 order dt. 25.10.2007 of this reference court, the LRs of Sh.Bhule were brought on record.
7 On the pleadings of the parties, following issues were framed by the this court on 27.02.2008 which are as under :
1 Whether the petitioner is entitled to additional amount and interest as prayed for ? OPP 3 Relief.
8 The counsel for the petitioners, in support of his case, has tendered in evidence the certified copy of the judgment dt. 26.05.1992 passed by the then Ld. ADJ, Delhi in LAC No.22 of 1992 titled Inder Singh Vs UOI as Ex.P-1, photocopy of the certified copy of the order dt. 28.02.1996 passed by the then Ld. ADJ, Delhi in LAC No.108/94 titled Sohan & Ors. Vs UOI as Mark-A and photocopy of the attested copy of the award/ order announced by Sh.Surjit Lal, LAC (ME), Delhi dt. 12.01.1996 in the case Liak Ram & Ors Vs UOI as Mark-B. The counsel for the respondents have tendered in evidence the copy of the order dt. 19.05.1995 passed by Sh.Surjit Lal, LAC on the application U/sec. 28-A of the LA Act for re-determination of the compensation of the land acquired vide award no.1295 of 1962 of village Badarpur, Delhi as Ex.R-1.
9 I have heard the Ld. Counsel for the parties and have perused the entire records. My issue-wise findings are as under:- ISSUE NO. 1 10 Before deciding this issue, it is relevant to mention here that 6 whether this reference petition u/sec. 28-A (3) of the LA Act has been filed within the period of limitation. The LAC announced the order on 19.05.1995 which is Ex.R-1 whereas, this reference petition dt. 22.05.1995 was filed before the LAC. No evidence has been filed by the respondents to the effect that this reference petition has been filed beyond the period of limitation. Thus, I hold that this reference petition has been filed within the period of limitation. Now, I shall decide the issue no.1. The onus to prove this issue is upon the petitioners. The petitioners have sought additional amount & interest on the aforesaid grounds which are not repeated herein for the sake of brevity. Let us examine the case of the petitioners for determination of the additional amount & interest on the awarded compensation of the land in question. The counsel for the petitioners in support of his case has relied upon the aforesaid judgments Ex.P-1 & Mark- A and also copy of the order dt. 12.01.1996 announced by the LAC which is mark-B. As per the order dt. 19.05.1995 which is Ex.R-1, the LAC re- determined the market value of the land of the petitioners therein @ Rs.10,000/- per bigha as per provisions U/sec. 28-A of the LA Act. The petitioners were also entitled to solatium @ 30% on the market value of the land u/sec. 23 (2) of the LA Act. Since the award no.1295/1962 pertains to the period prior to 30.04.1982, the petitioners therein were not entitled to additional amount @ 12% u/sec. 23 (1-A) in view of the judgment dt. 12.09.1994 passed by the Hon'ble Supreme of India in the case of K.S.Paripooran Vs State of Kerala & Ors. However, the petitioners therein were also entitled to interest only @ 9% p.a. on determined compensation from the date of taking over the possession to the date of payment as the department was filing an appeal against the grant of interest beyond 9%. Ex.P-1 which is the certified copy of the judgment dt. 26.05.1992 passed by 7 the then Ld. ADJ, Delhi in LAC No.22 of 1992 titled Inder Singh Vs UOI wherein, the petitioner filed the reference petition u/sec. 18 of the LA Act against the compensation awarded by the LAC of the land acquired vide the award no.1436 of 1962-63 of village Badarpur, Delhi. The then Ld. ADJ, Delhi enhanced the compensation and the petitioner was held entitled to compensation @ Rs.10,000/- per bigha of the acquired land. It was also held in Ex.P-1 that though the award of the Land Acquisition Collector is prior to the date of amendment of Section 23 (1-A) of the Land Acquisition Act yet as per the decision made in Zohra Singh Vs Union of India the petitioner shall be entitled to the benefits as provided under section 23 (1-A) of the Act. It was further held that the petitioner shall also be entitled to solatium at the rate of 30 per cent of the market value of the land. It was also held that furthermore, the petitioner shall also be entitled to additional amount of 12 per cent on the above market value from the date of publication of notification under section 4 of the Act to the date of award or to the date of taking the possession whichever is earlier. It was further held that the petitioner shall also be entitled to interest at the rate of 9 per cent per annum for one year on enhanced compensation from the date of possession of the land and thereafter interest at the rate of 15% per annum till the date of payment of excess amount.
11 Mark-A is the photocopy of the certified copy of the order dt. 28.02.1996 passed by the then Ld. ADJ, Delhi in LAC No.108/94 titled Sohan & Ors. Vs UOI wherein, the petitioner filed the reference petition u/sec. 28 A (3) of the LA Act for determination of the benefits as provided in the LA Act 1984 in respect of the land acquired vide the notification dt. 10.11.1960 u/sec. 4 of the LA Act which was followed by the declaration dt. 10.08.1962 8 u/sec. 6 of the LA Act vide the award bearing no.1436/1962-63 of village Badarpur, Delhi. The LAC fixed the market value of the land @ Rs.4000/-, Rs.3500/-, Rs.2,500/- and Rs.800/- per bigha for A,B,C & D block land respectively. However, the LAC, upon the application of the petitioners u/sec. 28 A of the LA Act on the basis of the judgments of the then Ld. ADJ, Delhi awarded the compensation @ Rs.10,000/- per bigha for all blocks of land besides awarding solatium @ 30% on the market value u/sec. 23 (2) and interest U/sec. 28 of the LA Act @ 9% per annum but the LAC refused to allow additional benefits u/sec. 23 (1-A) of the LA Act. The only issue involved in mark-A was whether the petitioner therein was entitled to the benefit of additional amount and interest. The then Ld. ADJ, Delhi considered various aspects, provisions under the LA Act and relied upon the judgments including the fact that the LAC allowed interest to the petitioner therein only @ 9% p.a. mentioning that the department has been filing appeals against grant of interest beyond 9%, meaning thereby the LAC disallowed interest @ 15% p.a. solely on the ground that department/UOI was preferring appeals against grant of interest beyond 9% which cannot be said to be proper and judicious reason for disallowing interests in favour of the petitioner therein @ 15% p.a. Thus, the then Ld. ADJ, Delhi in the aforesaid case which is Mark-A held that the petitioner therein is entitled to get interest on the excess sum of compensation u/sec. 28 of the Act @ 9% p.a. for first one year from the date of dispossession and 15% p.a. for the subsequent period till payment. Mark-B is the photocopy of the award/order dt. 12.01.1996 announced by Sh.Surjit Lal, LAC (ME), Delhi in the case Liak Ram & Ors Vs UOI wherein, LAC re-determined the market value of the land of the petitioners therein @ Rs.10,000/- per bigha as per provisions U/sec. 28-A of the LA Act. The petitioners were also entitled to 9 solatium @ 30% on the market value of the land u/sec. 23 (2) of the LA Act. As the award no.1295/1962 pertains to the period prior to 30.04.1982, the petitioners therein were not entitled to additional amount @ 12% u/sec. 23 (1-A) in view of the judgment dt. 12.09.1994 passed by the Hon'ble Supreme of India in the case of K.S.Paripooran Vs State of Kerala & Ors. It is relevant to mention here that in the judgment Mark-B, the petitioners therein were also held entitled to interest @ 9% p.a. u/sec. 34 for a period of one year from the date of taking over the possession and thereafter @ 15% p.a. till payment on the excess amount which has been increased in terms of section 28-A of the Act (as amended).
12 The counsel for the petitioners herein, in support of his arguments, has referred section 28 A of the LA Act, 1984 which reads as under :
''Re-determination of the amount of compensation on the basis of the award of the court :
(1) where in an award under this part, the court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector U/sec. 11, the persons interested in all the other land covered by the same notification U/sec. 4, Sub-Section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector U/sec. 18, by written application to the Collector within three months from the date of the award of the court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the court: Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.10
(2) The Collector shall, on receipt of an application under Sub-Section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants.
(3) Any person who has not accepted the award under sub-Section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference U/sec. 18.''
13 The judgment Ex.P-1 relied upon by the counsel for the petitioners herein was passed on 26.05.1992. In the judgment Mark-B, the petitioners therein were not entitled to additional amount @ 12% u/sec. 23 (1-A) in view of the judgment in the case of K.S.Paripooran Vs State of Kerala & Ors. Since the date of the award in question is prior to 30.04.1982, therefore, I hold that the petitioners herein will not get additional amount of 12% U/s 23(1-A) of the Act as per the judgment of the Hon'ble Supreme Court of India in the case of K.S.Paripoornan Vs State of Kerela & Ors JT 1994 (6) Supreme Court, page 182. In Mark-A, the petitioner therein was held entitled to get interest on the excess sum of compensation u/sec. 28 of the Act @ 9% p.a. for first one year from the date of dispossession and 15% p.a. for the subsequent period till payment. However, in Mark-B, the petitioners therein were also held entitled to interest only @ 9% p.a. u/sec. 34 for a period of one year from the date of taking over the possession and thereafter @ 15% p.a. till payment on the excess amount which has been increased in terms of section 28-A of the Act (as amended). Therefore, my decision is also supported with the aforesaid judgment which is Mark-A and also the award/ order dt. 12.01.1996 of the LAC which is Mark-B, therefore, 11 the petitioners herein are only entitled to interest @ 9% p.a. on the excess sum of compensation u/sec. 28 of the Act for the first one year from the date of dispossession and @ 15% p.a. for the subsequent period till payment. Since there was no specific direction passed by the Ld. Predecessor Court while adjourning this reference petition sine die on 10.07.1996 in respect of the claim of the petitioners for the intervening period, therefore, I hold that the petitioners are also entitled to the claim for the intervening period i.e. from the date of adjourning this reference petition sine die till the date of its revival. This issue is answered accordingly.
RELIEF 14 In view of my findings above on issue no. 1, the petitioners herein are only entitled to interest @ 9% p.a. on the excess sum of compensation u/sec. 28 of the Act for the first one year from the date of dispossession and thereafter @ 15% p.a. for the subsequent period till payment. This reference is answered accordingly.
A copy of this award be sent to the concerned LAC to make the compensation/ interest amount to the petitioners within three months from today. While making calculations of the compensation amount i.e. interest amount, due regard shall be made to deduct the amount already received by the petitioners to avoid any duplication. There shall be no order as to costs. Decree sheet be prepared accordingly. The file be consigned to Record Room.
Announced in open court ( YASHWANT KUMAR )
on 19.03.2008 ADDL. DISTRICT JUDGE (LAC)
DELHI
12
LAC No. 192/1/08
19.03.2008
Present- None
Vide separate award dictated and announced in the open court, this reference u/sec. 28-A (3) of the LA Act is answered accordingly.
A copy of this award be sent to the concerned LAC to make the compensation/ interest amount to the petitioners within three months from today. While making calculations of the compensation amount i.e. interest amount, due regard shall be made to deduct the amount already received by the petitioners to avoid any duplication. There shall be no order as to costs. Decree sheet be prepared accordingly. The file be consigned to Record Room.
( YASHWANT KUMAR ) ADJ/LAC/DELHI/19.03.2008