Delhi District Court
Sh. Brijvir Singh S/O Sh.Balbir Singh vs Union Of India on 23 January, 2008
1
IN THE COURT OF SHRI YASHWANT KUMAR :
ADDITIONAL DISTRICT JUDGE (LAC) : DELHI
LAC No. : 93/1/07 AWARD No : 29/DC/E/2005-06
VILLAGE : Kondli, Delhi
In the matter of :
1 Sh. Brijvir Singh S/o Sh.Balbir Singh
R/o D-74, Sector -12, Noida, UP
2 Sh. P.D.Aggarwal S/o Sh.G.D. Aggarwal
R/o F-23, Preet Vihar, Delhi
3 Sh. Rishi Pal S/o late Sh.Karan Singh
R/o village Gharoli, Delhi-96
4 Sh. Shyamvir S/o Sh.Likhi Ram
R/o village Gharoli, Delhi-96
(Through Ld. Counsel Sh. Inder Singh )
...Petitioners
Versus
1 Union of India,
through the Land Acquisition
Collector/ADM, East Distt., L.M.Bundh,
Shastri Park, D.C.Office East, Delhi
2 Delhi Development Authority,
through its Vice Chairman,
Vikas Sadan, INA Market, New Delhi
(Through Ld. Counsel Sh.Rajesh Raina & Sh. S. S. Mittal )
...Respondents
AWARD REFERENCE U/S 18 OF THE LAND ACQUISITION ACT 1 Vide notification No.F.8(14)/99/L&B/LA/24998 dt.13.02.2004 U/s 4 of the LA Act (hereinafter referred to as the Act) followed by declaration vide notification No.F.8(14)/99/L&B/LA/8748 dt. 20.08.2004 U/sec. 6 of the LA Act, the land of the petitioners situate in the revenue estate of village Kondli, Delhi was acquired by the Govt. for construction of road under PDD. The Land Acquisition 2 Collector (hereinafter referred to as LAC), after completing all the requirements as provided under the Act, announced the award bearing No.29/DC/(E)/2005-06 and awarded the compensation @ Rs.17,64,000/- per bigha besides statutory benefits. 2 Feeling dissatisfied with the quantum of compensation awarded by the LAC, the petitioners herein filed petition U/s 18 of the LA Act for proper adjudication/market value of the acquired land which was sent to the reference court.
3 In this reference petition, the petitioners have sought the enhancement of compensation on the grounds that the petitioners are the co-bhumidars/ owners of the land bearing khasra no.670/414/2 measuring 6 bighas 7 biswas situated in the revenue estate of village Kondli, Delhi. According to the petitioners, the entire proceedings to acquire the land are wrong, illegal and without jurisdiction, therefore, the petitioners have not accepted the market value assessed by the LAC and other contents of the award. The LAC did not consider the potential value of the land in question at the time of assessing the market value. The LAC did not consider that the entire revenue estate of this village was surrounded by posh and developed colonies by DDA and other private colonizers such as Noida, Mayur Vihar, Gharoli Dairy Farm, several factors of Noida, Metro Hospital and other several Group Housing Societies are available adjacent to the land of the petitioners. All civic amenities 3 such as water, electricity, transport, school, roads and hospitals, Cinema Halls, Colleges, markets are available adjacent to the land in question long prior to the date of notification u/sec. 4 of the LA Act. It is further stated that the LAC has failed to take into consideration that entire acquired land of the petitioners are being used for commercial purposes and the acquired land can easily be used for commercial purposes as the same is levelled and developed by DDA/ respondent no.2 long prior to the date of notification u/sec. 4 of the LA Act. It is also stated that LAC has failed to take into consideration that the acquired land of the petitioners is adjacent to the several group housing societies built by the Govt. as well as private builders and also DDA flats are available on the land of the petitioners as per award of the LAC, therefore, the land of the petitioners has great potentiality. As per the impugned award made by the LAC that the LAC has categorically mentioned that the land under acquisition is already under the physical possession of DDA and is developed and connected by road. In fact, road has already been constructed on a part of the land under acquisition and the remaining portion of the land under acquisition is built up and residential. Much of the surrounding areas have been converted into multi storied residential flats.
4 It is further stated that the LAC did not consider the schedule of market rates fixed by the Ministry of Urban Development for the commercial land in East Delhi and which is in a particular for Geeta 4 Colony area, Delhi. According to the schedule of rates published by the Govt. of India, Ministry of Work & Housing Land Division for the year 2001 is @ Rs.50,000/- per sq. yard for the commercial land in Geeta Colony area where the land is situated on the date of notification u/sec. 4 of the LA Act. The land of the petitioners is situated at the crucial location, therefore, the petitioners could have sold the land by way of private sales to the willing purchasers and would have easily fetched the market value of more than Rs.50,000/- per sq. yard on the date of notification u/sec. 4 of the LA Act. The LAC have announced some awards recently to acquire the land in East, Delhi such as award no.1/1999-2000 of village Chandrawali, 13/DC/(East)/2004-05, 14/DC/(East)/2004-05 and 15/DC/2004-05 of village Khureji Khas and other parts of Delhi in which the LAC had fixed the market value on the basis of schedule of rates fixed by the Govt. for particular area at particular time without deduction even development charges. The land in question is fully developed and deserves much more than the schedule of rates fixed by the Govt. The possession of the land in question was taken over by the Govt. on 16.03.1979, therefore, the petitioners are also entitled for interest u/sec. 34 & 28 of the LA Act from the date of taking possession to the date of making payment @ 15% per annum. The LAC issued a notice u/sec. 12 (2) of the LA Act for filing the present reference petition which was received by the petitioners a week before filing this reference petition u/sec. 18 of the LA Act, therefore, the reference petition has been filed within the period of limitation. On these 5 grounds among others, the petitioners have filed this reference petition claiming Rs.50,000/- per sq. yard besides statutory benefits. 5 The UOI, in its written statement, has raised the objections on the ground that the Delhi Land Reform Act is applicable to the land in dispute. The correctness of the khasra nos., their area and the extent of share of the petitioners therein have been admitted only to the extent as specified by the LAC in his statement furnished U/s 19 of the LA Act. The land in question is not surrounded by any developed or un-developed colony and can only be used for agriculture. There was no structure, tree, well, or tube well on the land in question at the time of publication of notification U/sec. 4 of the LA Act.
6 DDA, in its written statement, has raised the objections on the ground that the LAC, while making award No.29/DC(E)/2005-06 relating to the village Kondli, Delhi, had taken into consideration the market value of the land on the basis of sale deeds of the adjoining lands of the area as well as all other documents which were made available and produced before the LAC. Moreover, the area of the land and other appurtenance/ amenities/ facilities were also taken into consideration while assessing the compensation by the LAC. The amount awarded by the LAC in the present case is adequate, sufficient, just and legal. It is based on cogent and reliable evidence and hence there is no scope for enhancement of the amount of 6 compensation. The present reference petition is barred by the period of limitation. It is further stated that without prejudice to the aforesaid preliminary objections, the petitioners are not admitted to be the owners/bhoomidars of the land in question and as such have no locus standi to file the present petition for enhancement of compensation. However, DDA has admitted to the extent that the land bearing khasra nos.670/414/2 total measuring 06 bighas 07 biswas, as also detailed in the statement u/sec. 19 of the LA Act situate in the revenue estate of village Kondli, Delhi was acquired by the LAC vide the award no.29/DC(E)/2005-06 and the physical possession of the land in question has also been delivered by the LAC and Land & Building Department to DDA on 09.05.2007. All other averments made in the reference petition have been denied by DDA. 7 On the pleadings of the parties, the following issues were framed by this court on 18.10.2007 which are as under:
1 What was the market value of the land in question at the time of issuance of notification u/s 4 of the LA Act?
Onus on parties.
2 Whether the petitioner is entitled to enhancement in compensation, if so, to what amount? OPP 3 Relief 8 Sh.Rishi Pal / petitioner no.3 has examined himself on behalf of the petitioners as PW1 who has tendered his examination in chief by way of affidavit as Ex.PW1/A. PW1, in his affidavit, has exhibited 7 the documents i.e. the copy of the Aks-Sizra of village Kondli, Delhi as Ex.PW1/1, original photographs of the land in question as Ex.PW1/2 to Ex.PW1/5, original copy of Delhi Map showing the location of the land in question as Ex.PW1/6, order of District Magistrate, NOIDA dt. 01.04.2002 along with the English translation of the same as Ex.PW1/7, certified copy of the lease deed dt. 25.08.2003 as Ex.PW1/8, certified copy of the lease deed dt. 19.11.2003 as Ex.PW1/9, certified copy of the sale deed dt. 29.04.2005 as Ex.PW1/10, certified copy of the sale deed dt. 14.08.2003 as Ex.PW1/11, certified copy of the sale deed dt. 17.07.2002 as Ex.PW1/12, certified copy of the sale deed dt. 29.08.2003 as Ex.PW1/13, certified copy of the sale deed dt. 23.01.2003 as Ex.PW1/14, certified copy of the sale deed dt. 23.07.2003 as Ex.PW1/15, copy of the schedule of rates fixed by the Govt. of India, Ministry of Urban Development land & development office, Nirman Bhawan, New Delhi dt. 16.04.1999 as Ex.PW1/16, copy of the scheme of Delhi Development Authority for converting the land in Delhi from leasehold to freehold as per DDA's brochure of April, 2003 as Ex.PW1/17, the circle rates for valuation of land and immoveable properties in Delhi fixed by the Govt. NCT of Delhi dt. 18.07.2007 as Ex.PW1/18 and certified copy of the affidavit of Sh.V.K.Singhal, Director (Land Management) Delhi Development Authority, Vikas Sadan, New Delhi filed in CW P No.2370 / 95 titled as Bhagat Singh Vs National Capital Territory of Delhi dt. 12.01.1996 as Ex.PW1/19. Sh.Sajjan Kumar S/o Sh.Roshan Lal, R/o village Kondli, Delhi, an 8 independent witness has been examined as PW2. Sh.Ombir Singh S/o Sh. Pritam Singh R/o village Kondli, Delhi, an independent witness has also been examined as PW3. Sh.Ishaque Khan, Junior Engineer, ED-12, Geeta Colony, DDA Office, Delhi has also been examined as PW3 (Sh.Ishaque Khan has been inadvertently given the witness number as PW3 instead of PW4. By this order, it is clarified that Sh.Ishaque Khan examined as PW3 shall be read in evidence as PW4 and the documents exhibited and proved by Sh.Ishaque Khan shall be read in evidence as Ex.PW4/1 and Ex.PW4/2 instead of Ex.PW3/1 & Ex.PW3/2.
9 The counsel for the petitioner, in support of his case, has also tendered in evidence the certified copy of award
No.13/DC(East)/2004-05 pertaining to village Khureji Khas, Delhi as Ex.P-1, certified copy of the award No.28/2005-06/DC(South) pertaining to village Yusuf Sarai, New Delhi as Ex.P-2, certified copy of the award No.02/DC/(South)/2006-07 pertaining to village Garhi Jharia Maria, New Delhi as Ex.P-3, certified copy of the judgment dt. 30.05.2006 passed by this Hon'ble Court in LAC No.42/1/06 titled Rajender Pd. Marwaha Vs UOI pertaining to village Khureji Khas, Delhi as Ex.P-4, copy of the reported judgment dt. 21.08.1998 passed by the Hon'ble High Court in RFA No.65/81 titled Bhola Nath Vs UOI pertaining to village Bahapur, New Delhi as Ex.P-5, certified copy of the judgment dt. 30.03.2001 passed by the Hon'ble High Court in RFA No.461/95 titled Hari Chand Vs UOI pertaining to village 9 Tughlakabad, New Delhi as Ex.P-6, certified copy of the judgment dt. 21.02.2003 passed by the Hon'ble High Court in RFA No.114/98 titled S.S.Aggarwal & Anr. Vs UOI pertaining to village Jasola, New Delhi as Ex.P-7, copy of the reported judgment dt. 04.09.2001 passed by the Hon'ble High Court in RFA No.204/99 titled Mahant Atma Ram Chela Mahant Sita Ram Vs UOI pertaining to village Yusuf Sarai, New Delhi as Ex.P-8 and certified copy of the judgment dt. 26.07.2007 passed by this Hon'ble Court in LAC No.11/2/07 titled UOI Vs Bhagat Singh & Ors. as Ex.P-9. Whereas, the counsel for the respondents have tendered in evidence the copy of the award no.29/DC(E)/2005- 06 pertaining to the village Kondli, Delhi as Ex.R-1. 10 I have heard the Ld. Counsel for the parties and have perused the entire records. My issue-wise findings are as under : ISSUE NOS. 1 & 2 11 Before deciding the issue nos. 1 & 2, let us examine whether there is any dispute of the land in question with any person and further whether the reference petition is barred by limitation. From the entire records of the file, it reveals that no such evidence has been filed on record to prove that the land is disputed with any other person. However, it is stated in the statement u/sec. 19 of the LA Act forwarded by the concerned LAC that the petitioners are not the recorded owner as per the record. The counsel for the petitioners has filed the copy of the certified copy of the judgment dt. 26.07.2007 10 passed by this reference court in LAC No.11/2/07 titled UOI Vs Bhagat Singh & Ors. which is Ex.P-9. Vide the award/ judgment dt. 26.07.2007 passed by the reference court in LAC No.11/2/07 titled UOI Vs Bhagat Singh & Ors., the petitioners herein have been held entitled to receive the compensation. The award in question was announced on 30.09.2005 and the reference petition was filed before the concerned LAC vide diary no.143 on 14.11.2005 meaning thereby the reference was filed within a period of limitation. Thus, I hold that there is no dispute for the land in question and the reference petition has been filed within a period of limitation. Therefore, the petitioners having the right, title and interest in the land in question are entitled to enhancement in compensation, if awarded by the reference court.
12 Now, I shall decide the issue nos.1 & 2. The issue nos. 1 & 2 are inter-connected and I shall decide both the issues together. The onus to prove these issues is upon the petitioners and the respondents. The petitioners have sought enhancement in compensation awarded by the LAC on the grounds mentioned in the reference petition which are not repeated herein for the sake of brevity. It has been held in several judgments of the Hon'ble Supreme Court as well as the Hon'ble High Court of Delhi that while assessing the market value of the land which is acquired by the government, situation, nature, potential/ user and neighbouring land, etc, is to be considered. In this context, I would prefer to rely 11 upon the judgments of the Hon'ble Supreme Court of India as well as the Hon'ble High Court of Delhi. The basic test was laid down by the Hon'ble Supreme Court in Special Dy. Collector & Anr. Vs Kurra Sambasiva Rao & Others, AIR 1997 SC 2625 and it was held that :
''The court is required to keep at the back of its mind that the object of assessment is to arrive at reasonable and adequate market value of the lands. In that process, though some guess work is involved. Feats of imagination should be eschewed and mechanical assessment of the evidence should be avoided. Even in the absence of oral evidence adduced by the Land Acquisition Officer or the beneficiaries, the judges are to draw from their experience the normal human conduct of the parties and bona fide and genuine sale transactions are guiding star in evaluating the evidence. Misplaced sympathies or undue emphasis solely on the claimants right to compensation would place very heavy burden on the public exchequer to which other everyone contributes by direct or indirect taxes'' In Spl. Tehsildar, Land Acqn. Vishakhapatnam Vs Smt. A. Mangala Gowri AIR 1992 Supreme Court 666, it was held by the Hon'ble Supreme Court of India that :
''In determining the market value of the land, the price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land possessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notification would supply the date to assess the market value. Where there were bona fide and genuine sale transactions in respect of the same land under acquisition wherein the claimant who was vendee had sold at Rs.5 per sq. yard, the High Court would not be justified in excluding such transactions and placing reliance on award of some other land for awarding compensation at the rate of Rs.10 per sq. yard, within a time lag of nine months from the bona fide transaction by seller.'' 12 In the case of Shakuntalabai (Smt) & Ors. Vs. State of Maharashtra, reported as (1996) 2 SCC 152 wherein it was held by the Hon'ble Supreme Court of India that when on record there is evidence of the value of the acquired land itself, then it is unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent land. The relevant portion of the aforesaid judgment reads as under :
''It is seen that if there is evidence or admission on behalf of the claimants as to the market value commanded by the acquired land itself, the need to travel beyond the boundary of the acquired land is obviated. The need to take into consideration the value of the lands adjacent to the acquired land or near about the area which possessed same potentiality to work out the prices fetched therein for determination of market value of the acquired land would arise only when there is no evidence of the value of the acquired land. In a case where evidence of the value of the acquired land itself is available on record, it is unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent lands.''
13 Let us examine the case of the petitioners herein after applying the aforesaid principles laid down by the Hon'ble Supreme Court as well as the Hon'ble High Court of Delhi. PW1, in his affidavit, has relied upon the documents from Ex.PW1/1 to Ex.PW1/19. Ex.PW1/1 is the copy of the Aks-Sizra of village Kondli, Delhi which reveals about the layout plan of re-settlement colony at Kondli, phase-I by approved by DDA as on 13.07.1983 which shows that the land in question and the other adjoining lands were changed for residential purpose in the year 1983. Ex.PW1/2 to Ex.PW1/5 are the original photographs of the land in question and Ex.PW1/6 is the original copy of Delhi Map which also reveals that the land of the petitioners 13 is situate in the developed colony i.e. houses, flats, roads, etc.and surrounded by the other developed colonies. The petitioners have also claimed Mayur Vihar Residential Colony and New Kondli resettlement Colony are at a distance of about 50 mtrs. from the land in question. Therefore, all the colonies have similar potential value so far as the market value is concerned. According to the petitioners, the acquisition in the area Mayur Vihar, NOIDA, Vasundhara, etc. which are the adjoining areas and localities was going on since 1959 to 2003 since a large scale notification was issued in the year 1959 in east Delhi for the purpose of planned development of Delhi. Perusal of the award no.29/DC(E)/2005-06 Ex.R-1 reveals that the LAC has also discussed and admitted the location, potential & development of the land in question which is as under :
''The land under acquisition is already under the physical possession of the DDA and is developed and connected by roads. In fact, road has already been constructed on a part of the land under acquisition and the remaining portion of the land under aquisition is built up and residential. Much of the surrouding areas have been converted into multi-storied residential flats...''
14 The petitioners have claimed that the land of the petitioners is adjacent to the NOIDA township and the rates of adjoining township of NOIDA as on 01.04.2002 are from Rs.2,500/- per sq. mtr. to Rs.15,000/- per sq. mtr. The petitioners to prove on record the potential and rates of the adjacent township of NOIDA have relied upon the Ex.PW1/7 which is the order of District Magistrate, NOIDA 14 dt. 01.04.2002 along with its English translation wherein the rates have been fixed from Rs.2,000/- per sq. mtr to Rs.15,000/- per sq. mtr. as on 01.04.2002. Ex.PW1/8 is the certified copy of the perpetual lease deed dt. 25.08.2003 of commercial plot no.CSC-1 total area measuring 1304.50 sq. mtrs of village Kondli in convenient shopping centre situate at Kondli (Housing Mixed Sector) for Rs.1,58,00,000/- which comes to Rs.12,112/- per sq. mtr. Ex.PW1/9 is also the certified copy of the perpetual lease deed dt. 19.11.2003 of commercial plot no.CSC-II, total area measuring 696 sq. mtrs. in convenient shopping centre situate at Kondli (Housing Mixed Sector) for Rs.84,50,000/- which comes to Rs.12,140/- per sq. mtr. Ex.PW1/12 is the certified copy of the sale deed dt. 17.07.2002 which also pertains to the shop no.12, block-G, Sector-18 NOIDA, District Gautam Budh Nagar, U.P. measuring 60 sq. mtrs. was sold for a total consideration amount of Rs.72,00,000/-. Ex.PW1/15 is the certified copy of the transfer deed cum sale deed dt. 23.07.2003 which pertains to shop no.18 measuring 37.50 sq. mtrs. situate in block-L- 93, Sector-11, NOIDA, District Gautam Budh Nagar, U.P. duly allotted by NOIDA Authority which was sold for a total consideration amount of Rs.6,50,000/-. In this context, I would place a reliance upon the judgment dt. 03.03.2005 in WP (C ) 76-79/2004 titled Chet Ram Sharma & Ors Vs UOI & Ors, the land situate in village Bahapur, New Delhi was acquired vide the notification dt. 28.11.2002 U/s 4 (1) r/w/sec. 17 (1) (4) of the LA Act, the Hon'ble High Court of Delhi observed that :
15
''Not much material has been placed before us which could help the court to determine the fair market value of the land in question while the petitioners have placed whole emphasis on the fact that the land sought to be acquired by the respondents vide their notification U/s 4 dt. 28.11.2002 is part of a fully developed commercial area and has great potential and they are entitled to the present market value prevalent in the area at the relevant time.'' The Hon'ble High Court of Delhi in the aforesaid WP ( C) 76-79/2004 held that :
''Admittedly the area has been developed by the DDA as a commercial area. However, under the lay out plan, the area was marked only for public utility services and thus it cannot get any commercial value.''
15 In the case of Chet Ram (Supra), the claimants claimed that the acquired land is a part of commercial area. The Hon'ble High Court of Delhi referring the judgments of the Hon'ble Supreme Court of India, held that while determining the prospective use of the land or its future potential and development by itself cannot be the only basis for the court to determine the market value of the acquired land and therefore, granting of compensation is a matter of serious consequence and thus cannot be based upon the element of conjuncture. Whether the acquired land may be treated as fit for commercial purpose, the Hon'ble Supreme Court of India in the judgment reported in the case of M.C.Mehta Vs UOI & Ors AIR 2006 SC 1325, has held that the provision for household industries in residential areas does not mean converting residential houses in the commercial shops. It only means permitting activities of household industry in a part of a residential property. It does not mean that residential properties can be used for commercial and trading 16 activities and sale and purchase of goods. It was further held by the Hon'ble Supreme Court of India in the aforesaid case that it has rightly not been disputed by any counsel that neither layout plan, nor the building plan, can be sanctioned by MCD except in the manner and for the purpose provided in the Master Plan. If in the master plan, the land use is residential, MCD cannot sanction the plan for any purpose other than residential. Therefore, misuse of residential premises for commercial purposes has outrightly been rejected by the Hon'ble Supreme Court. The petitioners, in the present reference, have not led any documentary evidence that the acquired land is quite fit for commercial purpose as per the master plan. Therefore, I have no hesitation to hold that the case of the petitioners herein on the aspect of use of land is squarely covered as per the aforesaid judgments of the Hon'ble Supreme Court of India and the Hon'ble High Court of Delhi. Thus, the petitioners herein are not entitled to the commercial rates of the land in question as on the date of notification i.e. 13.02.2004 u/sec. 4 of the LA Act. 16 The petitioners have also claimed that the land in question has also the potential of developed residential area apart from the fact that it is also fit for commercial purpose. In this regard, the petitioners have relied upon the sale deeds. Ex.PW1/10 is the certified copy of the sale deed dt. 29.04.2005 of the plot area measuring 100 sq. yards in khasra no.197 situate at village Kondli, Delhi which was sold for Rs.5,00,000/- which comes to Rs.5,000/- per 17 sq. mtr. as on 29.04.2005. Ex.PW1/11 is the certified copy of the transfer deed cum sale deed dt. 14.08.2003 pertaining to the house constructed on residential leasehold plot bearing no.399 measuring 450 sq. mtrs. including covered and un-covered areas situate at 15-A within new Okhla Industrial Development Area (NOIDA), District Gautam Budh Nagar, U.P. duly allotted by NOIDA Authority which was sold for a total consideration amount of Rs.1,16,00,000/-which comes to Rs.35,555/- per sq. mtr. as on 14.08.2003. Ex.PW1/13 is the certified copy of the sale deed dt. 29.08.2003 of residential leasehold built property no.31 measuring area 440.70 sq. mtrs. in block-A, sector-17 within new Okhla Industrial Development Area (NOIDA), District Gautam Budh Nagar, U.P. which was also sold for an amount of Rs.80,00,000/-. Ex.PW1/14 is the certified copy of the transfer deed cum sale deed dt. 23.01.2003 in respect of the house constructed on residential leasehold plot bearing no.53 measuring 112.5 sq. mtrs. situate in block-L of Sector-11 within new Okhla Industrial Development Area (NOIDA), District Gautam Budh Nagar, U.P. duly allotted by NOIDA Authority which was sold for a total consideration amount of Rs.16,14,000/-which comes to Rs.14,327/- per sq. mtr. as on 23.01.2003.
17 The land in question was acquired vide the notification dt. 13.02.2004 u/sec. 4 of the LA Act and the LAC assessed Rs.1,750/- per sq. yard of the land in question as on 13.02.2004. In Ex.PW1/10, the residential property situate at village Kondli, Delhi was sold for 18 Rs.5,000/- per sq. mtr. as on 29.04.2005. In Ex.PW1/11, the residential property situate at NOIDA was sold for Rs.35,555/- per sq. mtr. as on 14.08.2003. In Ex.PW1/13, the residential property situate at NOIDA was sold for Rs.14,327/- per sq. mtr. as on 29.08.2003 and in Ex.PW1/14, the residential property situate at NOIDA was sold for Rs.18,141/- per sq. mtr. as on 23.01.2003. The average rate of the aforesaid residential properties situate at NOIDA in Ex.PW1/11, Ex.PW1/13 & Ex.PW1/14 which are also the adjoining areas but not in close proximity to the land in question comes to Rs.22,674/- per sq. mtr. from the period 23.01.2003 to 29.08.2003. However, the average rate of Rs.22,674/- per sq. mtr. between the said period is on higher side. If the maximum deduction @ 38.72% is allowed for the Noida rates as per the judgment of the Hon'ble High Court in Ex.P-6 which has been upheld by the Hon'ble Apex Court, it would come to the fair minimum market value @ Rs.13,831/- per sq. mtr. which is also much higher than the rate as per the residential property sold for Rs.5,000/- per sq. mtr. in Ex.PW1/10. Therefore, I hold that the sale deeds in Ex.PW1/11, Ex.PW1/13 and Ex.PW1/14 cannot be considered to fix the fair market value of the land in question as on 13.02.2004.
18 The petitioners have also claimed that there are several judgments of the Hon'ble High Court of Delhi and the Hon'ble Supreme Court of India whereby the rates for the agricultural land have been fixed on the basis of schedule of the rates fixed by Govt. of 19 India, Ministry of Urban Development, L&DO, Nirman Bhawan, New Delhi. The petitioners have further claimed that Jhil Khurenja and Geeta Colony situate in East Delhi are the adjoining colonies to the village Kondli, Delhi. Therefore, the petitioners have relied upon the Ex.PW1/16 which is the copy of the schedule of rates fixed by the Govt. of India, Ministry of Urban Development land & development office, Nirman Bhawan, New Delhi dt. 16.04.1999. As per the said schedule, the prices for transfer of the land situate at Jhil Khurenja and Geeta Colony for the corresponding period i.e. 01.04.1996 till 31.03.1998 comes to Rs.2,805/-per sq. mtr for residential areas and Rs.5,865/- per sq. mtr. for commercial areas. If the escalation @ 10% per annum of Rs.2,805/- per sq. mtr. from 01.04.1996 till the date of notification u/sec. 4 of the LA Act of the land in question i.e. 13.02.2004 is calculated, it would come to Rs.4,731/- per sq. mtr. 19 The petitioners have further claimed that as per the scheme of Delhi Development Authority for converting the land in Delhi from leasehold to freehold as per DDA's brochure of April, 2003 whereby the rate of the land situate in Kondli, Delhi for the purpose of converting the land from leasehold to freehold is Rs.3,073/- per sq. mtr. The said brochure has been proved as Ex.PW1/17. Further, the Govt. of NCT of Delhi has fixed the minimum rates (circle rates) for valuation of lands and immoveable properties in Delhi for the purpose of market value vide the notification No.F.2(12)/Fin. (E.I)/partfile/vol.1(ii)/3548 dt. 18.07.2007 issued by the revenue 20 department, Govt. of NCT, Delhi. The locality of Kondli falls in category G and the minimum circle rate of category -G is Rs.13,700/- per sq. mtr. The said rates and notification has been proved as Ex.PW1/18. Ex.PW1/19 is the certified copy of the affidavit of Sh.V.K.Singhal, Director (Land Management) Delhi Development Authority, Vikas Sadan, New Delhi filed in CW P No.2370/95 titled as Bhagat Singh Vs National Capital Territory of Delhi dt. 12.01.1996 whereby it has already been admitted by the Director (Land Management) DDA that the possession of the land had already been taken over and it was developed and various construction made over the property. Further, the very important master plan road with a width of 30 mtrs. connecting NOIDA to Shahdara is passing through this land.
20 Now, let us peruse the awards of the LACs and judgments passed by the Hon'ble High Court of Delhi and Ld.ADJs, Delhi relied upon by the counsel for the petitioners herein and to examine as to how far the aforesaid awards and judgments are relevant and applicable for determining the fair market value of the land in question. Ex.P-1 is the award No.13/DC(East)/ 2004-05 whereby the land situate at village Khureji Khas, Delhi vide the notification dt. 04.04.2000 u/sec. 4 of the LA Act was acquired. The LAC assessed the market value of the acquired land @ Rs.3,086/-per sq. mtr. as on 04.04.2000. Ex.P-2 is the copy of the award No.28/2005- 06/DC(South) in which the land situate at village Yusuf Sarai, New 21 Delhi vide the notification dt. 01.08.2003 u/sec. 4 of the LA Act was acquired. The LAC assessed the market value of the acquired land @ Rs.12,760/-per sq. mtr. as on 01.08.2003. Ex.P-3 is the copy of the award No.02/DC/(South)/2006-07 pertaining to the acquired land situate at village Garhi Jharia Maria, New Delhi whereby the rates of land acquired vide the notification dt. 26.04.2005 U/sec. 4 of the LA Act has been assessed @ Rs.9,240/-per sq. mtr. as on 26.04.2005. Ex.P-4 is the certified copy of the judgment dt. 30.05.2006 passed by this reference court in LAC No.42/1/06 titled Rajender Pershad Marwaha Vs UOI & MCD pertaining to village Khureji Khas, Delhi. This reference court, after considering the materials placed on record, fixed the market value of the acquired land @ Rs.6,172/- per sq. mtr. as on 21.08.2003. Ex.P-5 is the copy of the reported judgment dt. 21.08.1998 passed by the Hon'ble High Court of Delhi in RFA No.65/81 titled Bhola Nath & Ors. Vs UOI 1998 VI AD (DELHI) 159 wherein the land situate at village Bahapur, New Delhi was acquired, the Hon'ble High Court of Delhi fixed the market value of the acquired land @ Rs.2,000/- per sq. yard as on 30.06.1978 i.e. the date of notification u/sec. 4 of the LA Act. Ex.P-6 is the certified copy of the judgment dt. 30.03.2001 passed by the Hon'ble High Court in RFA No.461/95 along with other RFAs titled Hari Chand Vs UOI wherein the land situate at village Tughlakabad, New Delhi was acquired, the Hon'ble High Court of Delhi fixed the market value of the acquired land @ Rs.3,000/- per sq. yard as on 01.06.1992 i.e. the date of notification u/sec. 4 of the LA Act. Ex.P-7 is the certified copy 22 of the judgment dt. 21.02.2003 passed by the Hon'ble High Court in RFA No.114/98 titled S.S.Aggarwal & Ors. Vs UOI & Ors. wherein the land situate at village Jasola, New Delhi was acquired, the Hon'ble High Court of Delhi fixed the market value of the acquired land @ Rs.7,390/- per sq. yard as on 06.01.1995 i.e. the date of notification u/sec. 4 of the LA Act and Ex.P-8 is the copy of the reported judgment dt. 04.09.2001 passed by the Hon'ble High Court in RFA No.204/99 titled Mahant Atma Ram Chela Mahant Sita Ram Vs UOI, wherein the land situate at village Yusuf Sarai, New Delhi was acquired, the Hon'ble High Court of Delhi fixed the market value of the acquired land @ Rs.12,500/- per sq. yard as on 12.01.1984 i.e. the date of notification u/sec. 4 of the LA Act.
21 In P.Ram Reddy & Ors. Vs Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad & Ors (1995) 2 SCC 305, it was held by the Hon'ble Supreme Court of India that :
''Building potentiality has to be decided on the basis of material placed on record or made available and as such material must be supported by reliable documentary evidence. Therefore, if the acquired land has the building potentiality, its value, like the value of any other potentiality of the land should necessarily be taken into account for determining the market value of such land.'' In Municipal Committee, Bhatinda & Ors. Vs Balwant Singh & Ors. (1995) 5 SCC 433, it was held by the Hon'ble Supreme Court that:
''The Ld.Single Judge while accepting that the lands are possessed of potential value, placed reliance on Ex.A-92 plan prepared by AW-4 and 23 stated that the acquired land abut Sirhind Canal towards the West and beyond Sirhind Canal is the Thermal colony. Towards the south, the acquired land abuts on Bhatinda-Barnala Road, Central Aviation Microwave Centre is also towards the South of the acquired land. The Aviation Centre also abuts on the aforesaid road. Bhatinda - Mansa - Talwandi Sabo Road joins Bhatinda - Barnala Road just in the middle of the acquired land towards the West. These is a bridge over Sirhind Canal for Bhatinda - Barnala road. There are two cinema houses besides numerous residential houses on both sides of that road besides several homes on Bhatinda - Barnala road. There is a residential colony in khasra no.1978. It could thus be seen that though the lands were agricultural lands on the date of notification, since they are situated within the municipal limits and nearer to the built-up area, the lands have potential value for residential or commercial purposes. The division Bench also reaffirmed the finding that the lands are possessed of potential value. We, therefore, hold that the lands are possessed of potential value.'' In Aksi bituced in Koyappathodi V. State of Kerala (AIR 1991 SC 20207), it was held by the Hon'ble Supreme Court that :
''It is settled law that the methods of valuation to be adopted in ascertaining the market value of the land as on the date of the notification are : (i) opinion of experts; (ii) the price paid within a reasonable time in bona fide transaction of the purchase or sale of the lands acquired or the lands adjacent to the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired. These methods, however, do not preclude the Court from taking any other special circumstances obtained in an appropriate case into consideration. As the object being always as near as possible in an estimate of the market value in arriving at a reasonable correct market value, it may be necessary to take even two or all those matters into account inasmuch as the exact valuation is not always possible as no two lands may be the same either in respect of the situation or the extent or the potentiality nor is it possible in all cases to have reliable material from which that valuation can be accurately determined.24
As regards the location of the property vis-a-vis its potentiality, the Collector in his award observed that :
''The present land being adjacent to the land of village Kondli is very much similar in fertility, nature and other factors therefore the award announced recently in village Kondli can be taken as a proper and adequate guidance in this case but the land under acquisition being much nearer to the main road and U.P. Border and Industrial complex has better chances to fetch more market value as compared to Kondli. Secondly it has good potentiality of building purposes....'' Even otherwise, the petitioner's land is on the date of notification was agricultural one, whereas the land rates of residential plots are being applied to the land of the petitioners while assessing the market value of the land of the petitioners. This is being so done because of looking at the potentiality of the land. Still it is considered expedient to take lowest rate as were prevalent of the residential plots in the year 1981...''
22 PW1, during cross examination, has deposed that the entire land in question was already in the possession of the DDA since 1979 even prior to the acquisition. The land in question touches the Noida boundary and is also at the distance of half km from Vasundhara Enclave and Mayur Vihar is also at a distance of half km. PW1 has further deposed that there is a development on his land after the possession in 1979. The part of the land, there was school named Bharti public school and on the part of the land, there was a resettlement colony in block-C, 45 mtr. double road and park also by the DDA but there is no multi-stored building on the land in question. PW2 & PW3 who are the independent witnesses produced by the petitioner. PW2 has deposed that he is residing in colony known as New Kondli since 1982 and New Kondli colony falls on the 25 land in village Kondli, Delhi. PW2 has also deposed that he is the allottee of the property since 1989 and prior to that there was a developed area. There was no such agricultural land in village Kondli, Delhi since 1992. There is a distance between his property and NOIDA about half and one km and the rates of the NOIDA are higher in comparison to New Kondli. PW2, during his cross examination, has also deposed that Mayur Vihar-III is one and a half km away from New Kondli. PW3 has deposed that he is residing in colony known as New Kondli, Delhi since 1988 and also deposed the same facts which have been deposed by PW2. Sh.Ishaque Khan, Junior Engineer, Geeta Colony, DDA Office has been examined as PW3 (Sh.Ishaque Khan/ PW3 shall now be discussed as PW4 to avoid any confusion). PW4 has specifically deposed that the allotment for plots in the resettlement colony were going since 1988 and since then development in the area was going on. The resettlement colony, Kondli falls on the land of revenue estate of village Kondli, Delhi. PW4, during his cross examination, has deposed that it is correct that the allotment of the resettlement is going on in his presence in village Kondli, Delhi. PW3 (now PW4) brought the allotment register of settlement colony kondli block-C-1 and Block- C-2 and deposed that there is a distance of 50 mtrs approximately between block-B and Block-C. Block-C is adjacent to the main road. The development in Block-C-I and Block-C-2 of resettlement colony was happened from 1984 to 1988.
2623 The acquired land situate in Ex.P-2, Ex.P-3, Ex.P-5 to Ex.P-8 are not adjacent to the land in question. However, the counsel for the petitioners has relied upon the aforesaid exhibits to prove on record that the LACs while assessing the market value of the acquired land in Ex.P-2, Ex.P-3, Ex.P-5 to Ex.P-8 have considered the rates fixed by the Govt. The sale deed dt. 29.04.2005 of the plot area measuring 100 sq. yards in khasra no.197 situate at village Kondli, Delhi in Ex.PW1/10 was sold for Rs.5,00,000/-. The counsel for the petitioners has argued that the land mentioned in the sale deed Ex.PW1/10 is situate in the agricultural area where the abadi has developed but the land in question is much developed land which has the higher potential value than the land in Ex.PW1/10. However, this contention of the counsel for the petitioners has been opposed by the counsel for the respondents. Perusal of the Ex.PW1/10 reveals that this land is situate to old abadi (abad deh). Whereas, the LAC in the award Ex.R-1 has admitted that the land in question is already developed and connected by roads. Even road has already been constructed on a part of the land under acquisition and the remaining portion of the land under acquisition is built up and residential. Further, much of the surrounding areas have been converted into multi-storied residential flats. Therefore, the land in Ex.PW1/10 cannot be compared for assessing the potential and fair market value of the land in question as on 13.02.2004. 27 24 As per the evidence led by the petitioners, the acquired land situate at Khureji Khas in Ex.P-1 and Ex.P-4 is the adjoining land at a distance of half km to the land in question. In Ex.P-4, the land situate at Khureji Khas, Delhi was acquired vide the notification dt. 04.04.2000 u/sec. 4 of the LA Act. However, this reference court, after having considered the materials placed on record and the judgments, fixed the market value @ Rs.6,172/- per sq. mtr. as on 04.04.2000. If the escalation in price @ 10% per annum of Rs.6,172/- per sq. mtr. fixed by this reference court as on 04.04.2000 till the date of notification u/sec. 4 of the LA Act of the land in question i.e. 13.02.2004 is calculated, it would come to Rs.8,553/- per sq. mtr. as on 13.02.2004. It is pertinent to mention here that the area under acquisition has been found to be in a fast developing part of a municipal town, development activity was in progress which has been admitted by the LAC in the award Ex.R-1. In this context, I would place reliance upon the judgment dt. 26.09.1996 passed by the Hon'ble High Court of Delhi in RFA No. 554 of 1992 in the case of Dharamvir & Ors Vs UOI, it was held that acquired land was surrounded by developed area which had already roads and railway line, therefore, there was no justification for deduction towards development cost to the extent of 30% or to the extent of 25%. However, even otherwise, if the maximum deduction @ 38.72% upon the aforesaid rate of Rs.8,553/- is allowed, it would come to Rs.5,241/-per sq. mtr. or Rs.4,838/- per sq. yard as on 13.02.2004. Therefore, I have no hesitation to hold that the fair market value of 28 the land in question was Rs.4,838/- per sq. yard as on 13.02.2004. The possession of the land in question had already been taken over by the Govt. since 1979 as per the affidavit of the Director (Land Management), DDA which is the admitted fact in Ex.PW1/19 and DDA is the beneficiary of the aquired land in question, therefore, the petitioners shall also be entitled to statutory benefits from 01.01.1980. These issues are answered accordingly. RELIEF 25 In view of my findings on the above issues, the market value of the land of the petitioners bearing khasra no.670/414/2 (6-07) situate at village Kondli, Delhi acquired vide the notification dt. 13.02.2004 U/sec. 4 of the LA Act is fixed @ Rs.4,838/- per sq. yard as per the details mentioned in the statement u/sec.19 of the LA Act. The petitioners shall be entitled to enhancement in compensation as per their shares of the land mentioned in the statement u/s 19 of the LA Act. Besides it, the petitioners shall also be entitled to get additional amount u/sec. 23 (1A) of LA Act @ 12% per annum on the market value from the date of notification u/sec. 4 of the LA Act till the date of award. The petitioners shall also be entitled to the interest as per section 28 @ 9% for the first year from 01.01.1980 and thereafter 15% p.a. for the subsequent year. The petitioners shall also get solatium u/sec. 23 (2) of LA Act @ 30% on the enhanced amount of compensation on the difference between the enhanced compensation awarded by this court and the compensation awarded 29 by the LAC for the subsequent period till the payment. The petitioners are further entitled to interest on solatium and additional amount in terms of judgment of Hon'ble Apex court titled Sunder Vs UOI reported in DLT 2001 (SC) 569. This reference is answered accordingly.
A copy of this award be sent to the concerned LAC to make the payment of the enhanced amount of compensation to the petitioners within three months from today. While making the calculations due regard shall be made to deduct the amount initially arrived at by the LAC 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 23.01.2008 ADDL. DISTRICT JUDGE (LAC)
DELHI
30
LAC No. 93/1/07
23.01.2008
Present- None
Vide separate award dictated and announced in the open court, this reference is answered accordingly.
A copy of this award be sent to the concerned LAC to make the payment of the enhanced amount of compensation to the petitioners within three months from today. While making the calculations due regard shall be made to deduct the amount initially arrived at by the LAC 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/23.01.2008