Delhi District Court
Smt. Promila Bhardwaj vs Union Of India on 26 August, 2017
1
IN THE COURT OF SH. TARUN SAHRAWAT, ADDITIONAL
DISTRICT JUDGE-04, CENTRAL,
TIS HAZARI COURTS, DELHI
LAC No. 3150/16 AWARD NO.11/LAC/N/11-12
Dated: 19.08.2011
AREA: KOTHI MEM (RANI JHANSI ROAD)
IN THE MATTER OF:
1. SMT. PROMILA BHARDWAJ
W/O LATE SH. I.M. BHARDWAJ
R/O B-44, PANCHSHEEL ENCLAVE
NEW DELHI-110017
2. SH. RAJENDER MOHAN BHARDWAJ
S/O LATE DR. RAM KRISHAN BHARDWAJ
R/O B-44, PANCHSHEEL ENCLAVE
NEW DELHI-110017
3. SH. VIRENDER MOHAN BHARDWAJ
S/O LATE DR. RAM KRISHAN BHARDWAJ
R/O B-44, PANCHSHEEL ENCLAVE
NEW DELHI-110017
4. SH. PARDEEP BHARDWAJ
S/O LATE DR. RAM KRISHAN BHARDWAJ
R/O P-66, C.R. PARK
NEW DELHI ....Petitioners
Versus
1. UNION OF INDIA
THROUGH LAND ACQUISITION COLLECTOR
DISTT. NORTH, DELHI
LAC NO. 3150/16
PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 1 of 34
2
2. MUNICIPAL CORPORATION OF DELHI
THROUGH ITS COMMISSIONER
TOWN HALL, DELHI ....Respondents
DATE OF INSTITUTION : 20.11.2012
DATE OF JUDGMENT RESERVED ON : 26.08.2017
DATE OF JUDGMENT : 26.08.2017
REFERENCE UNDER SECTION 18 OF THE LAND
ACQUISITION ACT AGAINST THE FINDINGS AND
DETERMINATION OF MARKET VALUE OF LAND AND
STRUCTURES, MEASUREMENT ETC. MADE BY THE LAND
ACQUISITION COLLECTOR VIDE AWARD NO. 11/LAC/N/11-
12
JUDGMENT
1. Vide this award, I shall dispose of the instant reference u/sec. 18 of the Land Acquisition Act, 1894 preferred by the petitioners against the respondents being aggrieved with the quantum of compensation awarded by the LAC, in lieu of the acquisition of the land/property of the petitioners' property.
2. Vide Notification No. F.10/36/06/L&B/LA/872 dated 20.04.2010 under section 4 of LA Act, declaration u/sec. 6 of the Act vide notification no. F.10/36/06/L&B/LA/5533 LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 2 of 34 3 dated 28.06.2010, the land of the petitioner as specifically stated in revised statement u/sec. 19 of LA Act submitted by LAC, situated at Kothi Mem has been acquired by the Government and possession of the same has already been taken on 30.11.2010. The Land Acquisition Collector, after completing all the formalities as provided under the Act assessed the market value of the land of the petitioners @ Rs.55,200/- per sq. mtr.
3. Briefly stated averments made in the present reference are that the petitioners are the owner in respect of the property bearing no. 6596, Kothi Mem, Rani Jhansi Road, situated in the commercial area of Pul Bungash, Delhi and son of petitioner no. 1 was running a commercial establishment on the acquired property much prior to the date of notification u/sec. 4 of LA Act. The son of petitioner no. 1 is a lawyer who was operating his office on the acquired property much prior to the date of notification. As per the petitioner's claim, the market value of the land and structure, loss of earnings etc. as assessed by the LAC is inadequate for the following reasons:
(i) That the LAC has ignored the prevailing market rate of the acquired area as he has passed an award LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 3 of 34 4 without taking into consideration the location, potentiality and the commercial value of the acquired land. As per the petitioner's version, his land was declared as commercial vide notification F.13/96/2006-UD/16071 dated 07.09.2007 and thus, the LAC failed to give the due appreciation @ 12% p.a. compounded annually from 07.09.2007 till date.
(ii) That the LAC has ignored that all the facilities and amenities of life such as electricity, water, transportation, schools, hospitals, banks, colleges etc. were available to the acquired land much prior to the date of notification and as such, the prevailing market rate as on the date of notification was not less than Rs.5 Lakhs per sq. yds.
(iii) That the LAC did not take into consideration the various auctions which had taken place by the reputed companies in respect of other properties situated in the acquired area.
(iv) That the LAC did not take into consideration the lease hold documents in respect of the properties which were leased out at Pul Bungash, Metro LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 4 of 34 5 Station, Delhi which is having an F.A.R. of 400 and capitalized value of the lease hold properties comes to Rs.5 Lakhs per sq. mtr. on the basis of capitalization method of 20 years.
(v) That the LAC also did not allow shifting charges which the petitioner had to incur on account of compulsory nature of acquisition and as such the petitioner has to start his commercial establishment from the beginning.
4. On the basis of above mentioned grounds, the petitioner has prayed for compensation for the land @ Rs.5 Lakhs per sq. mtr. and Rs.30 Lakhs for the structure existing on the acquired land and Rs.50 Lakhs on account of shifting purpose/damages. Besides that, the petitioner has also claimed the statutory benefits as per the Land Acquisition Act, 1894.
5. In the written statement filed on behalf of respondent no. 1 UOI/LAC, some preliminary objections were raised such as:
(i) That the present reference is barred by the Law of Limitation and therefore, it has to be LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 5 of 34 6 dismissed at the very threshold u/sec. 18(2) of the LA Act;
(ii) That fair, reasonable and adequate market value is always a question of fact depending upon the evidence adduced, circumstantial evidence and probabilities arising in each case and thus, the onus of claiming compensation is always on the claimant;
(iii) That the petitioner has not brought any specific and cogent evidence on record to claim the higher compensation and as such, the order passed by the LAC is reasonable considering the market value as on the date of notification u/sec. 4 of the LA Act and hence, the present reference is liable to be dismissed.
6. In reply on merits, all the grounds taken by the petitioner for enhancement of compensation have been denied by respondent no. 1.
7. In the written statement filed on behalf of respondent no.
2/MCD, some preliminary objections were raised such as:
LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 6 of 34 7(i) That the petitioner has no locus standi to file the present suit and thus, the present petition u/sec. 18 of the LA Act, 1894 is not maintainable in the eyes of law.
(ii) That the impugned award is based on the sound reasons and the evidence/documents produced during proceedings of the award have been rightly assessed by respondent no.
1/LAC in respect of the compensation amount vis-a-vis the land and the structure thereon.
8. In reply on merits, the respondent no. 2 denied that the petitioner is the owner in respect of the property in question and that the market value of the land and structure, loss of earnings etc. as assessed by LAC is on the lower side as alleged. Further, it has been submitted that the petitioner is not entitled for the enhanced compensation as alleged market rate towards the cost of land and the structure is not based on any documentary evidence and that the averments as stated in the petition are based on figment of imaginations of the petitioner and the same has got no relation to the reality. With these LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 7 of 34 8 submissions the respondent no. 2 also prayed for dismissal of the present petition with costs.
9. Vide order dated 04.01.2014 passed by my Ld. Predecessor, issues were framed as follows:
1.Whether the petitioner is entitled for compensation as prayed for? OPP
2.Whether petitioner is entitled to statutory benefits as per land acquisition Act, 1984?
OPP
3.Whether the present petition is not maintainable? OPD-2
4.Whether petitioner has no locus standi? OPD-2
5. Relief.
10. In order to substantiate his claim, the Ld. Counsel for petitioner adopted the entire evidence led in case titled as Pankaj Bhardwaj v. Union of India & Anr. bearing LAC No. LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 8 of 34 9 16/12, Sh. T. Minz, Kanoongo from the office of LAC, Central as PW-2, and Sh. Vinod Kumar Pandey, Halka Patwari from SDM office, Civil Lines, Delhi as PW-3. It is pertinent to mention here that Ld. Counsel for petitioner also tendered the evidence led in the case titled National Cold Storage & Refrigeration Pvt. Ltd. v. UOI & another bearing LAC No. 5/1/11.
11. On the other hand, the respondent nos. 1 i.e. Union of India got summoned Sh. Surya Prakash, the Record keeper/LDC from Sub Registrar office-I, Kashmere Gate, Delhi and examined him as RW-1, who proved three sale deeds viz. (i) Sale deed dated 10.11.2009 executed by Sh. Rajiv Kumar in favour of Smt. Anuja Saini registered on 18.11.2009 as Ex.RW-1/B; (ii) Sale deed dated 18.11.2009 executed by Ms. Amreen in favour of Mrs. Neelam registered on 21.11.2009 as Ex.RW-1/D, and; (iii) Sale deed dated 29.05.2009 as Ex.RW-1/F. Further, Ld. Counsel for UOI relied upon the award in question and proved it as Ex. RW-1/A and thus, closed evidence on behalf of respondent no. 1.
12. Further, Ld. Counsel for the respondent no. 2 got examined Sh. J.D. Atkaan, Assistant Engineer(Project), LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 9 of 34 10 S.P. Zone, North DMC as R2W1 who proved the copy of zonal development plan pertaining to the land in question as Ex.R2W1/1 and also report of Town Planning Department as Ex.R2W1/2. Respondent no. 2 also examined Sh. Roop Singh, Architectural Assistant, Town Planning Department who relied upon the abovesaid documents and filed the certificate u/sec. 65-B of Indian Evidence Act, 1872 as amended uptodate and thereafter closed its evidence.
13. I heard the final arguments advanced by the Ld. counsel for the opposite parties and perused the evidence including all documents placed on record.
14. My findings on the above issues are as follows:
ISSUE NOS. 1 & 2:
1.Whether the petitioner is entitled for compensation as prayed for? OPP &
2.Whether petitioner is entitled to statutory benefits as per land acquisition Act, 1984?LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 10 of 34 11
OPP
15. Both issues are taken up together, issue no. 1 is with regard to enhancement of compensation and issue no. 2 is in respect of statutory benefits as per Land Acquisition Act, 1894. As apparent, the onus to prove these issues lies on the petitioner. The petitioner having been aggrieved, by the compensation awarded by the LAC, sought enhancement through the reference made and have put forth a number of grounds on which he claims to be entitled to the enhanced compensation. Here, I may mention that even a slight disturbance or variation in routine unsettles a person and that too depends upon the degree of impact and vulnerability of the individual, the actual impact, thus, may even be devastating. In these circumstances, unsettling someone alongwith the entire family with habitat and hearth lock, stock and barrel can very well be imagined especially when establishment is stable and running for quite sometime. The proximity not only breeds contempt but also develops into fascination, bondings and different types of relations between the individual, and at times encompasses in itself, the relationship between the humans, animals and even the stones and structures. One may, more often than not, feel LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 11 of 34 12 pain of leaving particular abode, locality, city or country.
16. Against this backdrop, un-setting someone from his abode is, without doubt, disturbing if not devastating but then it has to be coped up depending upon the circumstances especially when it is supported by the legislation (though the new Act has been passed by the parliament and it has also come into force) and when there is no escape or no way out and has limited rather no option to exercise but to toe the line or so to say that no option whatsoever except the one thrusted upon by the circumstances.
17. In the instant matter, the requirement to broaden the road and to create/construct a grade separator at Rani Jhansi Road was the need of the hour and the creation of the same armed and empowered with the will of Government to remove all possible obstacles with all the might of the state in order to have smooth passage/path/road in place at the earliest in the City of Delhi resulted into acquisition of land even in thickly populated urban landscape under the Land Acquisition Act, 1894 and persons whose land/houses were the subject matter of the notification under section 4 of Land Acquisition Act for this purpose were not even given an option to file any objections as LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 12 of 34 13 contemplated under Section 17(3A) of Land Acquisition Act thereby leaving them practically with no option but to concede to the Directives of Government. In such scenario those who were displaced could have only consoled themselves that they got suitable compensation, which may compensate them to the extent possible though at times there cannot be a compensation for such situations. To fulfill the same, the Govt. acquired the land adjoining various roads including Pul Bangash and in the process, some individuals were forced to surrender their houses/shops/factory and land (commercial as well as industrial) which, of course, was not to their liking or pleasure.
18. It was compulsory acquisition so much so that land was required on urgent basis and therefore, the formalities with regard to the provisions of Land Acquisition Act which under normal circumstances, are routinely followed were dispensed with resorting to Section 17 of LA Act.
19. After processing the matter, the compensation was fixed by the Land Acquisition Collector at the rate of Rs.55,200/- per sq. mtr. which was not acceptable to the claimant and therefore, the reference was made u/sec. 18 of Land LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 13 of 34 14 Acquisition Act whereby the claimant has sought enhancement in the amount of compensation based upon various facts such as, (i) that the LAC has ignored the prevailing market rate of the acquired area as he has passed an award without taking into consideration the location, potentiality and the commercial value of the acquired land as the land was declared as commercial vide notification F.13/96/2006-UD/16071 dated 07.09.2007; (ii) that the LAC has ignored that all the facilities and amenities of life much prior to the date of notification and as such the prevailing market rate as on the date of notification was not less than Rs.5 Lakhs per sq. yds; (iii) that the LAC did not take into consideration the lease hold documents in respect of the properties which were leased out at Pul Bungash, Metro Station, Delhi and capitalized value of the lease hold properties comes to Rs.5 Lakhs per sq. mtr. on the basis of capitalization method of 20 years; (iv) that the LAC also did not allow shifting charges which the petitioner had to incur on account of compulsory nature of acquisition and as such, the petitioner has to start his commercial establishment from the beginning. It has been asserted that while awarding the compensation, the Land Acquisition Collector has not taken into account all these LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 14 of 34 15 factors and has awarded the compensation which is not suitable to the kind of properties, acquired by the Govt.
20. In his evidence led by way of affidavit, PW-1 deposed that his property acquired u/sec. 4 of the LA Act was a commercial property being situated on a commercial declared road vide notification no. F.13/96/2006-UD/16071 dated 07.09.2007 as is admitted in the award of Land Acquisition Collector itself. Copy of said notification has been proved as Ex.PW-1/1. PW-1 further deposed that all the properties acquired vide award no. 9/LAC/N/2010-11, 10/LAC/N/2010-11 and 12/LAC/N/2010-11 and in the present award are similar in location, potentiality and market value since they are abutting each other and there is no difference in the land use of properties acquired vide all the above awards. He deposed that all the properties were abutted to commercial declared roads as per the above mentioned notifications and all the properties have been acquired for the same purpose i.e. construction of grade separator at Rani Jhansi Road from St. Stephen Hospital to Filmistan Cinema. He further deposed that the property of National Cold Storage is situated at a distance of less than 500 meters and the Methodist Church is abutted to the property of National Cold Storage. PW-1 LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 15 of 34 16 also proved the judgment passed in the case of Abhishek Gupta v. U.O.I as Ex.PW-1/2 and National Cold Storage and Refrigeration Pvt. Ltd. v. Union of India and others as Ex.PW-1/3 wherein this court had enhanced the market value of property bearing no. 18 as well as property no. 12-14-16 Boulevard Road as well as the property of National Cold Storage.
21. PW-1 further deposed that his property is situated at zero distance from the commercial and thickly populated areas of Roshnara Road, Pulbangash Metro Station, Old Subzi Mandi, Naya Mohalla, Azad Market and Sadar Bazar and it is evident from the Eicher City Map, Delhi exhibited as Ex.PW-1/4.
22. Having heard the arguments and perused the record, firstly, it will be appropriate to refer the broad parameters laid down by the Hon'ble Supreme court of India, in the case titled as "Chaman Lal Hargovind v. Special Land Acquisition Officer (1988) 2 SCC 751" wherein it was observed that the case of enhancement of compensation on account of acquisition of land are required to be considered on the following parameters:-
"4. The following factors must be etched on the LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 16 of 34 17 mental screen:
(1) A reference under section 18 of the Land Acquisition Act is not an appeal against the award; and the court cannot take into account the material relied upon by the Land Acquisition Officer in his award unless the same material is produced and proved before the court.
(2) So also the award of the Land Acquisition Officer is not to be treated as judgment of the trial court open or exposed to challenge before the court hearing the reference. It is merely an offer made by the Land Acquisition Officer and the material utilized by him for making his valuation cannot be utilized by the court unless produced and proved before it. It is not function of the court to sit in appeal against the award, approve or disprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellant court.
(3) The court has to treat the reference as an LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 17 of 34 18 original proceedings before it and determine the market value afresh on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the material produced in the court of course, the material placed an proved by the other side can also be taken into account for this purpose.
(5) The market value of land under acquisition has to be determined as on the crucial date of publication of notification under section 4 of the Land Acquisition Act (dates of notifications under section 6 & 9 are irrelevant).
(6) The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 18 of 34 19 at a reasonable price.
(7) In doing so by the instances method, the court has to correlate the market value reflected in the most comparable instance which provides the index of market value.
(8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of acquisition of land).
(9) Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivate the purchaser to pay a higher price on account of the resultant improvement in development prospects.
(10) The most comparable instances out of the genuine instances have to be identified on the following considerations:
(i) proximity from time angle.
(ii) proximity from situation angle.LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 19 of 34 20
(11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition.
(12) A balance sheet of plus and minus factors may be drawn for this purpose and the relevant factors, if any, be evaluated in terms of price variation as a prudent purchaser should do.
(13) The market value of the land under acquisition has thereafter to be deducted by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors.
(14) The exercise indicated in clause (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 20 of 34 21 illustrative (not exhaustive) factors:
Plus factors Minus factors
1. Smallness of size 1. Largeness of areas
2. Proximity to a road 2. Situation in the interior
at a Distance from the
road
3. frontage on a road 3. narrow strip of land
with very small frontage
compared to depth
4. nearness to developed area 4. lower level requiring
the depressed portion
to be filled up
5. regular shape 5. remoteness from
developed locality
6. level vis-a-vis land under 6. some special
disadvantageous
acquisitionfactor which
would deter it
purchaser
7. Special value for an owner
of an adjoining property to whom
it may have some very special
advantage.
(15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide.
(16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 21 of 34 22 purchaser of land in which position the judge must place himself.
(17) These are general guidelines to be applied with understanding informed with common sense.
23. Before I advert to the respective contentions of the Ld. Counsel for the opposite parties, let us discuss the statutory provisions of law, precedent and the findings arrived at in other similar cases. The reference petition u/sec. 18 of the Land Acquisition Act is made pursuant to the dis-satisfaction of the petitioners to the amount/market value determined as compensation on the date of acquisition of land.
24. On this, firstly let us go through the conditions precedent to the making of a reference under Section 18 of LA Act, 1894 as under:
3. Conditions Precedent to the Making of a Reference under Section 18 "As per Section 18(2) of the Land Acquisition Act, the following conditions must be complied with before the Collector can make a reference and for the court to exercise jurisdiction and entertain the reference:LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 22 of 34 23
(1) a written application to the Collector, (2) by a person interest who had not accepted the award, (3) stating the ground of objection as to the measurements of the land or to the amount of compensation or as to the persons to whom it is payable or as the apportionment of the compensation money among the persons interested, (4) within the period of time prescribed therefor under proviso to section 18(2)."
25. These formalities are matters of substance and their compliance is a condition precedent to the exercise of the power of reference under section.
26. In the case titled as Mahadeo Krishna v. Mamlatar of Alibeg, AIR 1944 Bom 200 it was held as under:
"The court is bound to satisfy itself that the reference made to it by the collector complies with the specified conditions, so as to give the court jurisdiction to hear the reference. If the reference does not comply with the terms of the Act the court cannot entertain it."LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 23 of 34 24
27. In the instant case, I am satisfied that before making of the reference Land Acquisition collector has complied with the aforementioned specified conditions. Further, I find that acquisition in this matter, was of compulsory in nature as enlisted in section 17 of the Land Acquisition Act, 1894 and the petitioner was not given an opportunity to file objections under section 5-A of the Land Acquisition Act which, in the present reference, was the commercial property of the petitioner who was using the said property for commercial activities in order to earn his livelihood. All the civic amenities were available to the land in question. The acquired property was completely abutted to the Boulevard road, which was acquired for the same purpose i.e. construction of a grade separator at Rani Jhansi Road and was pertaining to the same area i.e. Civil lines area of village Civil Station.
28. Against the backdrop of the present scenario, the acquisition for the purpose of grade separator at Rani Jhansi Road, which undoubtedly is good for larger part of the public, by the Govt. cannot be faulted or questioned but in these circumstances and even otherwise, the IPs were entitled to suitable compensation which according to LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 24 of 34 25 the Govt. has already been given to them, but being not satisfied, the present reference under section 18 of the L.A. Act came into being. In the instant matter where the acquisition was of compulsory nature, one did not have even the opportunity to question it but to resign to one's fate and accept the monetary compensation. Thus, the compensation (consolation) in the form of money should be potent enough atleast to console if not compensate.
29. PW-2 Sh. T. Minz, Kanoongo proved the RTI replies dated 06.09.2012, 05.10.2012 and 17.09.2012 vide Ex.PW-2/1 to Ex.PW-2/3 sent by the LAC which are clear admission that the acquired property which is situated at Rani Jhansi Road, Delhi are abutting properties acquired vide award No. 8, 9, 10, 11 and 12. The RTI replies Ex.PW-2/2 and Ex.PW-2/3 also clarify that all the properties acquired vide award no. 9, 10, 11 and 12 are abutting each other and thus, the market value of properties acquired vide these awards is similar to the market value of the properties acquired vide the present award. Similarly, PW-3 Sh. Vinod Kumar Pandey, Halka Patwari from the office of SDM Civil Lines, Delhi appeared with the Aks Shajra and deposed that the areas of Kothi Mem, Roshnara Road, Boulevard Road, Pulbangash, Delhi are touching each LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 25 of 34 26 other.
30. Respondent no. 1/LAC relied on sale instances of Nawab Ganj, Pul Bangash and Chandni Chowk, Delhi which are very far to the acquired property. The respondent no. 1 proved that if the areas of Chandni Chowk etc. are similar in location and potentiality then obviously, the areas of Kothi Mem, Roshnara Road and boulevard road are also similar in location and potentiality to the acquired properties. Respondent no. 1 stated that property of the petitioner is situated on commercial street/road but it does not mean that the property is used for commercial purpose.
31. Respondent no. 2/MCD examined Sh. J.D. Atkaan, AE (Projects), S.P. Zone as RW-2, who deposed that the award passed by the LAC is passed as per the provisions of the L.A. Act, 1954. Thus, the contention of the MCD that the land use of the acquired property is residential in nature does not hold water more specifically in terms of para "Current Land use" of the award. The respondent no. 2/MCD has never challenged the award passed by the respondent no. 1 and rather admitted it to be correct. Moreover, the case of the petitioner is squarely covered by LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 26 of 34 27 the market value fixed by the Ld. Predecessor in respect of land acquired vide award no. 8, 9/LAC/N which were announced for the same purpose i.e. construction of grade separator at Rani Jhansi Road, Delhi. Since all the properties acquired vide award No. 8, 9 etc. are similar in location and potentiality to the properties acquired vide the present award. The date of notification u/sec. 4 of the LA Act of award no. 9/LAC/n/10-11 was 24.08.2009 wherein the Ld. Predecessor fixed the market value as Rs.Two lakhs per sq. mtrs. as on 24.08.2009.
32. In P. Rama Reddi & Ors. v. Land Acqusition Officer, HUDA Hyderabad (1995) 2 SCC 305, parameters was enumerated as follows:
"(i) the situation of the acquired land vis-a-vis the city or the town or village which had been growing in size because of its commercial, industrial, educational, religious or any other kind of importance or because of its explosive population:
(ii) the suitability of the acquired land for putting up the buildings, be they residential, commercial or industrial, as the case may be;LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 27 of 34 28
(iii) possibility of obtaining water and electric supply for occupants of buildings to be put up on that land;
(iv) absence of statutory impediments or the like for using the acquired land building purposes;
(v) existence of highways, public roads, layout of building plots or developed residential extensions in the vicinity or close proximity of the acquired land;
(vi) benefits or advantageous or educational institution, health care centers, or the like in the surrounding areas of the acquired land which may become available to the occupiers of buildings, if built on the acquired land;
(vii) and lands around the acquired land or the acquired land itself being in demand for building purposes, to specify a few."
33. The counsel for the petitioner with the aid of several judgments contended that claimants are entitled to the highest value of the land and relied upon the sale deeds in this context as discussed in "National Cold Storage and LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 28 of 34 29 Refrigeration Pvt. Ltd. v. UOI and Ors" and asserted that the sale deed having highest value should be given consideration to award the compensation. In this context, petitioner also relied upon the judgment in (1969) 1 MLJ (SC) 45, (1968) 2 SCJ 869, (1984) 86 Punj. RL 540.
34. The Ld. Counsel for the respondent relied upon a case of Methodist Church v. UOI wherein this court had assessed the market value on the basis of residential land use way back in 2000 but the said judgment is also of no use since the acquisition in the present case were initiated in the year 2010 i.e. after the publication of notification of the change of land use vide notification dated 15.09.2006 duly issued by the Ministry of Urban Development. Therefore, the said sale deeds are rejected in this case as well on the same reasoning as was given by my Ld. Predecessor in case of "National Cold Storage and Refrigeration Pvt. Ltd. v. UOI and Ors."
35. In the award itself, it has been categorically mentioned that at the time of acquisition, the property acquired was a part of well developed area of Kothi Mem area of Rani Jhansi Road and all the civil amenities were available to the property acquired and that all the area was well LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 29 of 34 30 developed area before the date of notification u/sec. 4 of the LA Act, 1894. It was observed by LAC that the allowed use of land under present acquisition was commercial, hence, Rs.55,200/- per sq. meter was accepted as just and fair market value for the land under the acquisition.
36. Thus, the land use of the acquired properties is determined as commercial which is similar to the land use in respect of property no. 18, Boulevard Road, Civil Lines, Area Village Civil Station.
37. The evidence filed by the respondent no. 1 is based on the sale deeds which have already been discarded in the case titled "National Cold Storage and Refrigeration Pvt. Ltd. v. UOI and Ors" and hereby discarded in the present case as well since the said case has been mainly relied upon by the petitioner in order to prove the market value being similar in location and potentiality.
38. The evidence filed by respondent no. 2 is also discarded/rejected on account of the reasons stated in the preceding paras. All the said documents duly relied upon by the respondents failed to prove that any residential units were in existence as on the date of notification u/sec.
LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 30 of 34 314 and they also failed to prove that the land use was correctly assessed by the LAC.
39. From the above, I conclude that the market value of the land of the petitioner for the share and area as mentioned in revised statement u/sec. 19 of the Act in respect of property acquired in Kothi Mem, Rani Jhansi Road which has been acquired vide notification No. F.10/36/06/L&B/LA/872 dated 20.04.2010 under section 4 of the LA Act is arrived at Rs.2,34,000/- per sq. mtr. as on the date of notification since the notification in award No. 10/LAC/N/10-11 dated 15.04.2010 and this court had assessed Rs.2,34,000/- per sq. mtr. for the land acquired under award no. 10/LAC/N/10-11, the date of notification in the instant case is 20.04.2010, and if appreciation @ 12% p.a. is admissible, then by depreciating the market value at the same very rate @ 12% p.a., the petitioner will be entitled to the market value of the acquired properties @ Rs.2,14,280/- per sq. mtr. Besides, the said amount, the petitioners would also be entitled to solatium @ 30% under section 23(2) of the LA Act on the value of land as well as structures and the petitioners would also be entitled to additional amount @12% p.a. from the date of notification under section 4 till the date of award or date of LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 31 of 34 32 dispossession whichever is earlier as per section 23(1-A) of the LA Act. Apart from this the petitioners would also be entitled to interest @9% p.a. for the first year from the date of dispossession and @15% p.a. thereafter till the enhanced amount is paid to the petitioners.
40. Further, I find that the petitioner has failed to prove that he is entitled to shifting/severance charges and as such, the petitioner is therefore, held not entitled to any amount of compensation as shifting/severance charges. Hence, the issue nos. 1 and 2 are answered accordingly.
ISSUE NOS. 3 & 4:
3.Whether the present petition is not maintainable? OPD-2
4.Whether petitioner has no locus standi?
OPD-2
41. The onus to prove these issues was to be discharged by respondent no. 2. However, I find that the witnesses examined by respondent no. 2 namely Sh. J.D. Atkaan, R2W1 and Sh. Roop Singh, R2W2 remained silent on this aspect, in their testimony. In the circumstances, it is evident that respondent no. 2 failed to discharge its onus LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 32 of 34 33 to prove these issues, hence, these issue nos. 3 and 4 are decided against the respondents and in favour of the petitioner.
RELIEF
42. In view of the findings qua the issues herein above, the reference is answered in favour of the petitioner and the market value of the land of the petitioner for the share and area as mentioned in revised statement u/sec. 19 of the Act in respect of property acquired in Kothi Mem, Rani Jhansi Road which has been acquired vide notification No. F.10/36/06/L&B/LA/872 dated 20.04.2010 under section 4 of the LA Act is arrived at Rs.2,34,000/- per sq. mtr. as on the date of notification since the notification in award No. 10/LAC/N/10-11 dated 15.04.2010 and this court had assessed Rs.2,34,000/- per sq. mtr. for the land acquired under award no. 10/LAC/N/10-11, the date of notification in the instant case is 20.04.2010, and if appreciation @ 12% p.a. is admissible, then by depreciating the market value at the same very rate @ 12% p.a., the petitioner will be entitled to the market value of the acquired properties @ Rs.2,14,280/- per sq. mtr. Besides, the said amount, the petitioners would also be entitled to solatium @ 30% LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 33 of 34 34 under section 23(2) of the LA Act on the value of land as well as structures and the petitioners would also be entitled to additional amount @12% p.a. from the date of notification under section 4 till the date of award or date of dispossession whichever is earlier as per section 23(1-A) of the LA Act. Apart from this the petitioners would also be entitled to interest @9% p.a. for the first year from the date of dispossession and @15% p.a. thereafter till the enhanced amount is paid to the petitioners.
43. The reference is answered accordingly. Copy of the award be sent to the concerned LAC to make payment of enhanced amount of compensation to the petitioners within three months from today. The amount already paid on the basis of compensation awarded by the LAC, if any, shall be taken care off in order to avoid any over payment. No order as to costs.
Decree be drawn accordingly. File be consigned to the record room.
Announced in the open court on 26th August 2017 (TARUN SAHRAWAT) ADDL. DISTRICT JUDGE-04 CENTRAL/TIS HAZARI COURT/DELHI LAC NO. 3150/16 PROMILA BHARDWAJ & ORS. v. UNION OF INDIA & ANR. Page 34 of 34