Delhi District Court
Sh. Ramesh Kumar S/O Sh. Umed Singh vs Union Of India on 14 July, 2011
IN THE COURT OF SH. SANJEEV KUMAR:
ADDITIONAL DISTRICT JUDGE : ROHINI COURTS : DELHI
LAC No. 536A/08
UID No.02404C0178322008
IN RE :
1. SH. RAMESH KUMAR S/O SH. UMED SINGH
2. SH. NARESH KUMAR S/O SH. UMED SINGH
3. SH. INDER SINGH S/O SH. HARI SINGH (DECEASED)
THROUGH LRS
i) SMT. SARBATI - WIFE
ii) SH. RAMBIR - SON
iii) SH. MAHABIR - SON
iv) SH. KRISHAN KUMAR - SON
4. SH. JAIPAL SINGH S/O SH. HARI SINGH (DECEASED)
THROUGH LRS
i) SH. MANISH - SON
ii) SUNITA - DAUGHTER
iii) MANISHA - DAUGHTER
5. SH. SURESH KUMAR S/O SH. MAHENDER SINGH
ALL R/O PANA PAPOSIAN, NARELA, DELHI
...... PETITIONERS
Versus
1. UNION OF INDIA
LAND ACQUISITION COLLECTOR,
NORTH WEST,
LAC No.536A/08 Page 1 of 25
DELHI.
2. DELHI DEVELOPMENT AUTHORITY
THROUGH ITS VICE CHAIRMAN,
VIKAS SADAN, NEW DELHI.
........RESPONDENTS
Award No. 24/200304
Village NARELA
Date of Award/ Date of
Announcement of Award 29.01.2004
Notification U/S 4 F.11(16)/99/L&B/LA/1410
dt. 02.5.2001
Notification U/s 6 F.11 (16)/99/L&B/LA/1422
dt. 23.4.2002
Date of Receipt of Reference : 31.01.2008
Date of Arguments : 07.06.2011
Date of Decision: 14.07.2011
REFERENCE PETITION UNDER SECTION 18 OF THE
LAND ACQUISITION ACT 1894
J U D G M E N T
1. A large tract of Land measuring 1140 bigha 5 biswa 8 biswani of village Narela, Delhi, was acquired by the Govt. for a public purpose namely "development of Sector 1, 2,3 & 4, Narela Phase 1/1 under LAC No.536A/08 Page 2 of 25 Planned Development of Delhi". Notification under Section 4 of The Land Acquisition Act, 1894 (hereinafter referred to as 'LA Act') was issued on 02.05.2001. Declaration under Section 6 was made on 23.4.2002; Thereafter, Award bearing no. 24/0304 was announced by Land Acquisition Collector (hereinafter referred to as LAC) on 29.01.2004. The LAC determined the market price of the acquired land as Rs.15,70,000/ per acre for land falling in Block 'A' and Rs.14,00,000/ per acre for land falling in 'B' Block. 1.1 The petitioners being dissatisfied with the market value determined by the LAC, filed the present petition u/ s 18 of the LA Act, seeking reference to this court. The Land Acquisition Collector forwarded the same to this court, for adjudication.
2. The brief facts giving rise to the present reference petition are that petitioners are the owners/bhumidars of the 1/8TH, 1/8TH, 1/4TH, 1/4TH AND 1/4TH share respectively, of the land under acquisition out of khasra no.80//18/2(20), 86//2(416), 3(416) measuring 11 Bighas 12 Biswas, situated within the Revenue Estate of Village LAC No.536A/08 Page 3 of 25 Narela, Delhi (the said land). The said land was acquired vide notification dated 02.05.2001. In view of the urgency of the scheme the provision of section 17 (1) of the act were also made applicable. The declaration u/s 6 of the LA Act was made vide notification dated 23.04.02 ; The LAC granted the compensation viz. Rs.15,70,000/ per acre for land falling in Block 'A' and Rs.14,00,000/ per acre for land falling in 'B' Block. Land of the petitioners was placed in category 'A', thus was granted compensation @ Rs.15,70,000 per acre.
3. The petitioners have challenged the said award on the following grounds:
i) that LAC had not adopted the correct method of valuation; and determined the market value on the basis of policy of the Government of NCT, fixing indicative price of the agricultural land @ Rs.15,70 lac for the purposes of acquisition in the entire Delhi whereas price of land should have been assessed considering the situation and potentiality of land;
ii) that market value of the acquired land cannot be so fixed and should be assessed as per provisions of section 23 and 24 of LA Act, 1984;
LAC No.536A/08 Page 4 of 25
iii) that LAC has failed to consider the present physical and existing development in and around the land of the petitioners;
iv) that LAC has failed to consider that land of village Mamurpur was sold at a much higher price of Rs.26,75,000/ per acre (4 bigha 16 biswa) on 28.03.2000;
v) that the land of the petitioners is adjacent to various already developed area and village abadi and all the civic facilities like metaled roads, electricity, hospitals, schools, computer institutes, full fledged post office, health gym and colleges are available near the land in question. Thus land of the petitioners has great future potentiality to be used for commercial, industrial or residential purposes ;
vi) that the land of the petitioners is at much better location as it is connected to the main road connecting two National Highways i.e. NH1 (G.T. Karnal Road) and the Delhi Jammu Railway Line.
vii) that land of the petitioners is very fertile and having sweet water for better irrigation, it gives three commercial crops in a year.
viii) that LAC has failed to appreciate that around the land of petitioners many palatial farm houses have been developed and LAC No.536A/08 Page 5 of 25 constructed in the revenue estate of village Narela and adjoining villages and cost of such farm houses is not less than Rs.15,000/ per sq. yards.
ix) that LAC has failed to appreciate that land is surrounded by Industrial Area of Bawana, G.T. Road Industrial Area of Village Alipur, Narela Industrial Area, Bhorgarh Industrial Area, several godowns, factory, and market value of land was not less than Rs.10,000/ per sq. yards.
x) that the LAC has failed to appreciate that DSIDC has allotted the adjoining land to the Industrial Units @ Rs.8,000/ per sq. yards.
xi) that land of the petitioners has number of trees of Eucalyptus, Shisham, Shahtoot, Neem and Kikar and LAC has not awarded the sufficient compensation of the said trees on the said land.
xii) that LAC has not awarded sufficient compensation for loss sustained by the petitioners on account of destruction of the standing crops & trees.
xiii) that LAC has not awarded sufficient compensation for boring, tube well/well etc. LAC No.536A/08 Page 6 of 25
4. The petitioners have demanded the compensation of the acquired land at the rate of Rs.5,000/ per sq. yards. He has also claimed compensation of Rs.20,000/ per bigha for standing crops, Rs.50,000/ for standing crops, Rs.1,00,000/ for construction of Khotha, Boundary wall, Fencing, etc. existing on the land, Rs.5,00,000/ for change of place of their business and abode and Rs.1,00,000/ for well/tubewell.
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. Both the respondents have filed their written statement, in which they had taken many objections to the claim filed by the petitioners.
7. In the preliminary objections respondent no. 1 UOI has stated that DLR Act is applicable to the land in dispute and petitioners are not entitle for construction or structure which is raised without the sanction of law. It is further submitted that LAC has assessed the market value of land as per rates prevailing during the corresponding period for different categories of land besides other statutory benefits. LAC No.536A/08 Page 7 of 25
8. DDA in its reply/WS, has also contended that LAC has passed the award taking into consideration the market value of the land on the basis of sale deeds of the adjoining lands of the area and the compensation awarded by the LAC is just and reasonable, therefore, claim of the petitioners is liable to be dismissed. It was also denied that all civic amenities were available near the land in question.
9. During the admissiondenial of documents, Ld. Counsel for petitioners has admitted statement u/s 19 of Land Acquisition Act sent by LAC.
10. During the pendency of case, petitioner no. 3 & 4 have expired and their LRs as mentioned in the memorandum were impleaded in their place.
11. After the completion of pleadings of the parties, the following issues were framed :
1. Whether the petitioners is entitled to any enhancement in compensation. If so, to what amount ?
2. Relief.
LAC No.536A/08 Page 8 of 25
12. In support of their claim, the petitioner no.1 has examined himself as PW1 and tender his examination in chief by way of affidavit Ex.PW1/A and relied upon the sale deed dated 25.04.2001 of village Khera Khurd and sale deed dated 28.03.2000 of village Mamurpur Ex.Pw1/2 & Ex.PW1/3 respectively & khasra girdawari of his land for the year 199495 to 200304 Ex.PW1/3 to Ex.PW1/12 respectively. PW2 Sh. Manoj Dahiya, Halka Patwari of village Narela has also proved the khasra girdawari Ex.PW1/3 to Ex. PW1/12. Ld. Counsel for the petitioner has also tendered the copy of certified copy of the judgment passed by this court in case titled as Rekha Gupta Vs. UOI LAC No. 99A/09 dated 15.05.2010 as Ex.P1.
13. On the other hand respondent had not lead any evidence and only tender the copy of award as Ex. R1 and relied upon the evidences led by UOI in the leading case titled as Rekha Gupta Vs. UOI.
14. I have heard the Ld. Counsels for the parties and have also carefully considered the record. My issuewise findings are given hereinafter. LAC No.536A/08 Page 9 of 25
15. FINDINGS ON ISSUE NO. 1 : 15.1 Petitioners have contended that valuation of land determined by LAC is not reasonable as LAC has not adopted the correct method of valuation. However, he has not lead any evidence to support his contention that how the LAC was wrong in fixing market value of land. Ld. Counsel for the petitioners only relied upon the judgment titled as Rekha Gupta Vs. UOI (Supra) stated that award be passed in terms of the said judgment and the same enhancement which was granted in the said judgment be also granted to him.
15.2 Rekha Gupta Vs. UOI (Supra) pertained to the same award, same village and same notification by which the land of the present petition is acquired. In the said case I have determined the market rate @ Rs. 15,85,000/ per acre by giving enhancement @ 12% simple interest for the intervening period i.e. 01.04.2001 to 02.05.2001 (round of 1 month) on the market value determined by LAC i.e. Rs.15,70,000/ per acre as notification u/s 4 was issued 02.05.2001 where as govt. policy LAC No.536A/08 Page 10 of 25 came into effect from 01.04.2001 while relying upon the judgment of Rameshwar Solanki & another Vs UOI & another, AIR 1995 DELHI 358, wherein escalation at the rate of 12% per annum was allowed to arrive at a fair market value, which comes to Rs.15,85,700/(Rs.15,70,000+Rs.15,700). Since both the parties have relied upon Rekha Gupta Vs. UOI, I find no justification to differ from the said judgment. Thus I determine market price of the said land @ Rs.15,85,700/ per acre for Category 'A'.
16. Is Category of Land justified:
16.1 Ld. Counsel for petitioners has argued that some of the petitioner's land have been wrongly placed in category 'B' whereas his entire land was leveled one and there was no gaddas (pits) in the land. Hence, there was no justification given by LAC placing his land under category 'B'. Ld. Counsel has submitted that no survey of land whatsoever was ever conducted by acquiring department or by ld. LAC before placing his land in category 'B' hence, there was no basis to place his land in category 'B'.
LAC No.536A/08 Page 11 of 25 16.2 On the other hand Ld. Counsel for UOI has argued that LAC has correctly placed some land of the petitioners in category 'B' as there were 34 feet gaddas in the said land. Ld. Counsel for respondent has further argued that in Ludhiana Improvement Trust vs. Bijeshwar Singh Chahel (1996) 9 SCC 188 Hon'ble Supreme Court has categorically held that belting system can be adopted by LAC as level up and level low lying land cannot command the same market price.
16.3 I have heard the arguments of Ld. Counsels and perused the record.
16.4 LAC has divided the land into two categories on the basis of quality of land LAC has observed in award page 39 para 2 that:
"assessment of land falling in B Block is concerned attention is required to be made to the level of land. As stated earlier land is of gaddhas upto 34 feet. From this land earth has been taken out. To make this law leveled inferior quality land leveled, earth filling will have to be done. Local inquiries were made and it came to my notice LAC No.536A/08 Page 12 of 25 that for removing earth upto 34 feet the land owners of these land had received money @ Rs.120 lacs per acre at that time ie. 103 years back. Attention is drawn to the Award 10/99/2000 of village Sannoth wherein the land having Gaddhas upto 3 feet have been categorized in Block 'B' on the market value assessed of the B Block land was lower by Rs.1,20,000,00 from the A block leveled land i.e. the owner of B block land received a sum of Rs.1.20,000,00 per acre on selling their land. The land in village Sannoth under reference was notified under section 4 of Land Acquisition Act on 01.06.1998. After taking into the consideration the increase in the market value of the land notified subsequently, the market value of B Block is to be reduced by Rs.1,70,000 per acre on 27.10.2003 i.e. The date of notification under section 4 of LA Act in the present matter in comparison with the market value of leveled 'A' Block land. As such I assess the market value of B Block land @ Rs.14,00,000/ per acre.
16.5 As per section 19 statement some land of the petitioners has been placed in category 'B'. There is no doubt that LAC can categorise the land on the basis of quality of land. Belting system has been approved by the Higher Courts to make differentiation in the market value. In Ludhiana Improvement Trust Vs. Brijeshwar Singh Chahal and anothers (1996) 9SCC page 188. Hon'ble Supreme Court has categorically held that LAC No.536A/08 Page 13 of 25 belting system can be adopted by LAC and leveled up and leveled low lying land cannot command the same market price. Hon'ble Supreme Court in para no. 5 has laid down the following law:
"We cannot appreciate the stand taken by the claimants as a fact have to establish that levelled up land & low lying land commenced same market value and that, therefore, they are required to be awarded at same rate. It is seen that Land Acquisition Officer has himself stated which was not disputed in the reference court that depth of the land is 3 to 6 ft. unless the land is leveled up it cannot commenced the same market value as the levelled up land. Under these circumstances, the High Court was clearly in error in holding that the belting system cannot be adopted and compensation should be awarded of all land at the uniform rate."
In Gajraj Singh Vs. UOI LAA No.91/2005, Division Bench of Delhi High Court has also upheld the categorisation of land on LAC No.536A/08 Page 14 of 25 the basis of quality of land. Thus I do not find that there is adopting belting system and fixing different rate of land on the basis of quality of land. However, it is to be seen whether LAC has correctly placed the land of the petitioners in the category B. 16.6 Ld. Counsel for the petitioners has argued that though land of the petitioners has been placed under category B however, land was levelled land and there was no gadhas (pits) in his land. Petitioners have proved khasra girdawari of the year 199495 to 200304 Ex. PW1/3 to Ex.PW1/12 of the land to support the fact that they were cultivating the land. 16.7 Onus is on the Union of India to prove that quality of land of petitioners was inferior to other land & it has pit upto 34 feet. As normal rule is that all the land holders whose land has been acquired through same notification should be paid same rate unless LAC comes to the conclusion on the basis of cogent evidence on record that land is of inferior quality. 16.8 As Hon'ble High Court in LA Appeal no. 866/2005, titled as Mahender Singh Vs. UOI, Division Bench of our own High LAC No.536A/08 Page 15 of 25 Court while dealing with similar question had set aside the categorization of land, vide its judgment dated 11.05.2006. Following were the observations made by the Hon'ble High Court with respect to categorization of land : "10. ....................... The land which is being used for Bhatta purpose is having "Gadhas" upto three feet from which earth has been taken out for making bricks. This also includes "Bhatta Grund". Hence, for the purpose of assessing the market value, land can fairly be divided into two blocks.
11. The above findings of the Collector are based on what evidence or record is not reflected in the entire award. It cannot be disputed that at the time of the acquisition of the land, survey of the acquired land is conducted wherein every details in relation to the acquired land are expected to the noticed. This report is the very foundation on the basis of which any authority or court can come to the LAC No.536A/08 Page 16 of 25 conclusion as to what was the user/state of the land at the time of acquisition. Unfortunately, in the present case, neither such a report appears to have been made available to the Collector nor was it produced before the Reference Cout despite a specific plea being led by the claimants in this regard. There are findings of fact and must be recorded on the basis of some oral or documentary evidence which is maintained in the normal course of business of Department of the State. In the event, there is no documentary or oral evidence to support such a finding it would certainly call for judicial correction. The Collector in the entire award does not even notice that he had the occasion to visit the acquired land or any part thereof during the acquisition proceedings. Thus, we have to examine this finding of fact on the basis of the evidence produced before the Reference Court. ............. The possession LAC No.536A/08 Page 17 of 25 thereof was taken vide kabza karwai (possession report) dated 18.12.1996 which was signed by as many as 15 persons from different Departments. .............. In this possession report, there is no reference to brick kilns, brick gadhas or gadhas of the level of 3 feet or more. In the copy of the khasra girdawaris for the year 199697, 199798 in relation to the part of the land, there is no indication again that there was any brick kiln on the acquired land or part thereof.
12 ...........
13 ..........
15. .............
16. ............
17. Above is the documentary and oral evidence led by the claimants before the Reference Court. On the other hand, for the reasons best known to them, the respondents chose to withhold from the Reference Court all LAC No.536A/08 Page 18 of 25 the relevant evidence. They opted not to examine any witness or produce any documents before the Reference Court. The survey report which ought to have been prepared prior to the acquisition was not produced either before the Reference Court or even before this Court. These are the documents which are in power and possession of the respondents and are maintained by them during the normal course of their business in completing the acquisition proceedings. In the event a party withholds the best evidence in its power and possession, the court would normally draw adverse inference against the party withholding the evidence. The learned Counsel appearing for the respondents argued that the onus was on the claimants and it was not obligatory on the part of the respondents to produce any evidence. This argument is based on misconception of law and fact. Certainly the LAC No.536A/08 Page 19 of 25 claimants approached the court for enhancement of compensation awarded to them by the Collector and the primary onus was upon the claimants. But, at the same time, Union of India supports the award of the Collector and there is an implied onus upon them to show to the satisfaction of the Reference Court that the award should be affirmed by the Court on facts as proved before the Collector and the law settled by the Court. The concept of onus shifts from one party to the other keeping in view of the facts and circumstances of the case.... The general and broad principle of evidence is that a party which affirms has the onus probandi. Another test is which party would fail if no evidence was led on a factual averment. .......... It was the argument of the Union of India that there was pits and gadhas in the lands and certain persons were running the brick kilns on the LAC No.536A/08 Page 20 of 25 acquired lands. According to them this fact was correctly noticed in the award of the Collector............... Thus, as far as the respondents are concerned, their averments that part of the acquired land in the revenue estate of village Bawana was of inferior quality is a plea supported by no evidence and the Collector made no attempt to justify his findings with reference to any records maintained by the Acquisition Department itself in normal course of its business.
18 .........
19 .........
20. Categorisation of land is an exception to the general rule of awarding uniform compensation for the acquired lands. This has to be proved, as a matter of fact, and it would be impermissible to infer such factual presumptions, particularly when the evidence led by the claimants stares the respondent in LAC No.536A/08 Page 21 of 25 face. .................. and the Collector in his wisdom neither visited the site nor based his findings on any revenue records i.e. khasra girdhwari, survey reports, jamabandi etc. ................... the findings of the Collector in regard to categorisation, is a finding which cannot be sustained by this court.
16.9 While reverting to the facts of present case absolute no evidence has been led by the respondents to prove that there was 34 feet pits in the land of petitioners. LAC has stated that on local enquiries it came to his notice that earth has been removed from the land which are placed in category 'B' but no such enquiry report has been placed on record nor any witness has been examined who has conducted the said enquiry. As stated in the Mahinder Singh case (supra) categorisation is an exception to the general rule of awarding uniform compensation for the acquired lands. Thus burden was on the respondents to prove that land of petitioners have 34 feet pit (gadhas) and same was to inferior quality. But they have LAC No.536A/08 Page 22 of 25 failed to led any evidence to discharge the burden on the other hand petitioners has proved that khasra girdawari from year 199495 to year 200304 Ex.PW1/3 to Ex. PW1/12 that they were cultivating the land. No remark has been given in khasra girdawari that there were any pit in the land upto 34 feet. Thus in view of the above evidence and settled position of law, I held that findings of LAC to place the petitioner's land in category 'B' cannot be sustained and are set aside, petitioners shall be entitle to compensation of category 'A' land for their entire land.
17. Petitioners have also claimed for standing crops, but they have not led any evidence to prove that they were not awarded sufficient compensation for crops, hence I hold that petitioners are not entitled to any enhancement in compensation for the same.
18. Besides above, petitioners shall be entitle to other statutory benefits i.e 12% Addl. Amount as per section 23 (1) A & 30% solatium u/s 23 (2) & will be entitle to interest on the market value @ 9% per annum for the first year & 15% for subsequent year till the making of payment of LAC No.536A/08 Page 23 of 25 enhanced compensation by LAC as per provision of Section 28 of the Act. However, LR of petitioner no. 4 shall not be entitle to interest for the period from 24.03.2008 to 17.09.2008 excluding 90 days in view of the order dated 07.07.09.
Issue no. 1 decided accordingly.
19. Findings on Issue No.2 - RELIEF In view of the findings on Issue no.1, the petitioners are entitled to the following reliefs:
i) petitioners shall be entitle to compensation of category 'A' land for the entire land;
ii) enhancement in compensation from Rs.15,70,000 per acre to Rs.15,85,700 per acre i.e. enhancement @ Rs. 15,700/ per acre for the land as per statement u/s 19 LA Act ;
iii) 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 ;
iv) solatium u/s 23(2) of LA Act @ 30% on the enhanced amount of compensation ;
LAC No.536A/08 Page 24 of 25
v) 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. LRs of petitioner no.4 are not entitle to interest for the period from 24.03.2008 to 17.09.2008 excluding 90 days.
19.2 Reference is disposed of accordingly. 19.3 Decree sheet be prepared accordingly. A copy of the judgment be sent to LAC for necessary action.
19.4 File be consigned to record room.
ANNOUNCED IN OPEN COURT (SANJEEV KUMAR)
TODAY i.e. ON 14.07.11 ADJ01/ROHINI/DELHI
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