Delhi High Court
Ganga Dass (Dead) Through His L.Rs. And ... vs Union Of India on 18 April, 2001
Equivalent citations: 2001IVAD(DELHI)925, 91(2001)DLT433, 2001(59)DRJ231, 2001 A I H C 3275, (2001) 59 DRJ 231, (2001) 91 DLT 433, (2001) 2 LACC 288, (2001) 2 ANDHWR 416
Author: Mukul Mudgal
Bench: Mukul Mudgal
ORDER Devinder Gupta, J.
1. The appellants/applicants are seeking review of the judgment of this Court delivered on 5.4.1984 in RFA No.167/69.
2. The facts in brief are that the appellants land admeasuring about 470 bighas situate within the revenue estate of village Wazirpur, Delhi was notified for being acquired at public expense for public purpose through notification issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") on 2/3-3-1957. Declaration under Section 6 of the Act was issued on 29.3.1961 for which Collector Land Acquisition made his award No.1231 on 2.12.1961. Another declaration was made on 18.4.1962 for which Collector Land Acquisition made his award No.1399. In this case we are concerned with only the land, which is the subject matter of declaration issued under Section 6 of the Act on 29.3.1961 for which award No.1231 was made on 2.12.1961.
3. While offering amount of compensation, Collector divided the land in three categories valuing land at the rate of Rs.1750/- Rs.1700/- and Rs.1500/- per bigha respectively. Feeling dissatisfied with the amount of compensation, claimants sought reference. Reference Court by his award dated 20.11.1968 enhanced the amount of compensation holding that the fair market value of land situate at village Wazirpur as on 2.9.1957 was Rs.2,250/- per bigha irrespective of its categorisation. Still feeling dissatisfied, the claimants filed appeal in this Court for further enhancement in the amount of compensation (RFA 167/89). The appeal was decided on 5.4.1984 with the observations that the appeal is fully covered by judgment separately delivered in RFA 134/69 ( Jagat Ram v. Union of India ) decided on 14.2.1980. For the reasons recorded in the judgment in Jagat Ram's case (supra) the claimants/appellants were also held entitled to enhancement of Rs.1,000-/ per bigha over and above the amount of compensation determined by Additional District Judge. Feeling dissatisfied the claimants approached Supreme Court by filing S.L.C.(C) No.10776 and 12320 of 1984. During pendency of the Special Leave Petitions the claimants/appellants raised an additional ground that for the land covered by the same notification, the High Court in another case had allowed compensation at higher rate. Taking note of this additional ground, Supreme Court on 5.4.1984 disposed of the Special Leave Petition reserving liberty to the appellants to apply to the High Court for higher amount of compensation observing that the High Court would be free to make its own decisions after hearing the parties. The order reads:-
"Heard learned counsel for the petitioner. Though reliance has been placed in the original application on a decision of the High relating to the notification under Sec.4 of the Land Acquisition Act dated 13.11.59, a petition has been filed in this Court for leave to raise additional grounds by alleging that compensation for the lands covered by the same notification has been granted at higher rates. The claim of higher compensation as is contended has been accepted in a connected matter. On this basis reliance is placed on the provision of the 1984 Amending Act to claim the higher rate of compensation. Liberty is given to the petitioner to apply on this score to the High Court and the High Court is free to make its own decision after hearing the parties. We express no opinion. In case the five Judges Bench of this Court decides that relief under the Amending Act of 1984 would be available to a case of this type, liberty is also given to the petitioner to apply for suitable modification on that score. The Special modification on that score. The Special Leave Petition is disposed of accordingly.
Applications for substitution are allowed."
4. Pursuant to the aforementioned order, this review application was instituted on 5.5.1988 seeking review of the judgment dated 5.4.1984 and claiming higher amount of compensation. Higher amount of compensation is claimed, inter alia, on the ground that the land covered by the similar notification and adjacent to the land of the appellants/applicants but situate in different revenue estate of Chokri Mubarkabad has been assessed at the rate of Rs.11,050/- per bigha. The said land was also acquired for the same public purpose. Therefore, the appellants cannot be awarded compensation at a merge rate of Rs.3,250/- per bigha as compared to Rs.11,050/- per bigha allowed for the adjacent land. It is also pleaded that there was enough material on record that there was a regular upward trend of rise in the market value of the lands in Wazirpur. The finding recorded in the judgment in Jagat Ram's case (supra) on the basis of which the appellants/applicants appeal was disposed of that land situate in village Wazirpur had no building potentiality are erroneous in as much as locality of Sawan Park was a colony which came up in the year 1952 and for development of the same, land in question was acquired, which automatically would show that the land had building potentiality in the year 1957. Thus the entire basis for further claim for enhancement at the rate of Rs.11,050/- is on the basis of the assessment of the amount of compensation payable for the land situate at village Chowkri Mubarkabad.
5. Along with review petition another application (CM.566/89) was also filed seeking amendment of the memorandum of appeal.
6. In so far as the application for amendment moved by the appellants/applicants is concerned, we are inclined to allow in view of the ration of the decisions of the Supreme Court in Harcharan v. State of Haryana ; Bhag Singh and others v. Union Territory of Chandigarh , Scheduled Caste Co-operative Land Owing Society Ltd. Bhatinda v. Union of India and others ; Chand Kaur and others v. Union of India ; Gokal v. State of Haryana and Buta Singh (Dead) by LRs. v. Union of India . The said application (CM.566/89) is allowed but subject to the condition of the appellant's making good deficiency in the amount of court fee within a period of four weeks from today.
7. By virtue of the modification dated 3.9.1957 issued under Section 4 of the Act, land situate at village Chowkri Mubarkabad was also acquired for the same public purpose. Declaration under Section 6 of the Act was also made on 29.3.1961 for which the Collector made his award No.1180 offering the amount of compensation at Varying rates for different categories of land at Rs.2850/- per bigha for Nehri Land; at the rate of Rs.2750/- per bigha for Gair Mumkin Land; Rs.700/- per bigha for Gairmumkin Land. Feeling dissatisfied the claimants sought reference. The reference was registered as LAC No.255/83 ( Dhani deceased through L.Rs. and others v. Union of India) and was answered by Shri H.P.Bagchi, Additional District Judge, Delhi by his award dated 31.8.1985. By the said award market value of the land situate at village Chowkri Mubarkabad was assessed at the rate of Rs.11,050/- per bigha acquired through notification dated 3.9.1957. The basis for arriving market value in the said case was the judgment of this Court in RFA No.140/74 ( Assa Ram and others v. Union of India). For the land situate in the same revenue estate i.e. village Chowkri Mubarkabad acquired through notification issued under Section 4 of the Act on 13.11.1959 market value was assessed at Rs.12,700/- per bigha in Assa Ram's case (supra). Taking the said market value of Rs.12,700/- per bigha as the base as on 13.11.1959 the Reference Court held that if 6% decrease per annum is allowed from the market value as on 13.11.1959, fair market value as on 3.9.1957 can be worked out. Therefore, by making deduction @ 6% p.a. from Rs.12,700/- per bigha it was held that as on 3.9.1957 Rs.11,050/- per bigha would be the fair market value.
8. Learned counsel for the appellant referred to plan annexure-D to the review application wherein land which was subject matter of LAC No.255/83 where compensation was assessed at Rs.11,050/- per bigha as on 3.9.1957 is shown in rust colour and the land which is the subject matter of the present review application for which compensation has been assessed at Rs.3250/- per bigha as on 3.9.1957 is shown in green colour. This plan has not been controverter. Perusal of the same would suggest that the land situate at village Chowkri Mubarkabad and Wazirpur acquired through the same notification were adjacent to each other. However, the fact that the lands were located in close proximity to each other alone would not be a ground for allowing same amount of compensation. In the absence of any material or evidence that as on the date of the notification under Section 4 of the Act, the lands of Chowkri Mubarkabad and Wazirpur were similarly situate had same potentiality and were comparable lands, it will not be permissible to allow compensation at the same rate.
9. Learned counsel for the respondent has referred to material on record, which is sufficient enough to hold that the lands were not similarly situate and were not having same and similar potentiality. Division Bench of this Court in its judgment in RFA No.134/69 ( Jagat Ram v. Union of India) which was made basis for deciding the appeal of the appellants recorded a finding of fact on appreciation of evidence and came to the conclusion that because of various factors land situate at Wazirpur to be valued as agricultural land and not as a building site. In addition, the land of Wazirpur was prone to accumulation of water during rainy season because of which the land was considered to be good enough only for agricultural purposes and not for construction activities. For that reason alone it appears that the claimants initially had laid their claim for compensation at the rate of Rs.5,000/- per bigha.
10. In case the contention of learned counsel for the appellant is accepted that the same market value be allowed to them, as was allowed to the owners of the adjacent village whose property was also acquired through the same notification for the same acquired through the same notification for the same public purpose on the same reasoning, we are of the view that the appellants will not be entitled to enhancement at the rates claimed. As has been noticed above, determination of the amount of compensation for land situate at village Chowkri Mubarkabad was by placing reliance upon determination of the amount of compensation for the acquisition, which had taken place through notification dated 13.1.1959 wherein Rs.12,700/- per bigha was held to be the market value. Reduction was made at the rate of 6% p.a. in arriving at the figure of Rs.11,050/- per bigha. In case that be the reasoning, we will have to take judicial notice of the market value for lands acquired in village Wazirpur through notification dated 13.11.1959. This Court in RFA 511/79 ( Tulsi Ram v. Union of India) decided on 6.9.1984 assessed the market value at the rate of Rs.6,500/- per bigha. For subsequent acquisition, which took place through notification dated 26.10.1961 within the same revenue estate of village Wazirpur, compensation was assessed at Rs.8,450/- per bigha by a Division Bench of this Court in Shri Swallehin v. Union of India and another . As compared to village Wazirpur where land acquired through notification dated 13.11.1959 was assessed at Rs.6,500/- per bigha for Chowkri Mubarkabad acquired through notification of the same date 13.11.1959 compensation was assessed at Rs.12,700/- per bigha in RFA NO.140/74 ( Assa Ram and others v. Union of India). Therefore, it will not be safe for us while assessing compensation for land situate at Wazirpur to place reliance upon determination of the amount of compensation made with respect to the properties situated at Chowkri Mubarkabad, more particularly in the absence of any evidence or material on record about comparison of the two lands.
11. On the same principle on which compensation was assessed for Chowkri Mubarkabad for the acquisition which took place through notification dated 3.9.1957, the applicants/appellants, may be entitled to the same benefit. In case as on 26.10.1961 the market value of the land at Wazirpur was Rs.8,450/- per bigha and on 13.11.1959 it was assessed at Rs.6,500/- per bigha, there is no reason why the same principle of deduction at the rate of 6% p.a. be not adopted to arrive at a fair market value as on 3.9.1957. On allowing deduction at the rate of 6% p.a. from the market value as on 13.11.1959, the fair market value as on 3.9.1957 would work out to be Rs.5,720/- per bigha irrespective of classification of land. There is another reason for not placing reliance upon the valuation of village Chowkri Mubarkabad for assessing compensation for land situate at Wazirpur. In so far as village Chowkri Mubarkabad the acquired land was found to be having building potentiality, whereas finding recorded on appreciation of evidence in the instant case is that the land was not having any building potentiality.
12. In view of the above, we allow the review application with proportionate costs and modify the judgment delivered on 5.4.1984 and hold the claimants/appellants to be entitled to compensation at the rate of Rs.5,720/- per bigha in addition to the other benefits, as allowed by the said judgment.