Delhi District Court
National Cold Storage & ... vs Union Of India on 30 April, 2013
IN THE COURT OF AJAY GOEL: ADDITIONAL DISTRICT JUDGE-14
CENTRAL DISTRICT : DELHI.
LAC NO. 5/1/11
AWARD NO. :- 10/LAC/N/10-11 dated 22.12.10
LAND:- Bouleward Road
VILLAGE: Civil Station
National Cold Storage & Refrigeration(P) Ltd.
Having its Regd. Office at:
C-120, Naraina Industrial Area,
New Delhi, Through its Director:
Sh. B.K. Gupta.
............... Petitioner
VERSUS
1. Union of India
Through
Land Acquisition Collector
Delhi: District Civil Station
2. Municipal Corporation of Delhi
Through
The Commissioner, MCD of Delhi
Town Hall, Delhi
3. Union of India
Through Secretary
Ministry of Urban Affairs and Development
Land and Development Office,
Nirman Bhawan, New Delhi.
............... Respondents
Date of filing reference:- 16.05.2011 Date of assignment to this court:- 13.08.2012 Date of argument:- 09.04.2013 Date of decision:- 30.04.2013 LAC NO. 5/1/11 Page:-1/28 AWARD Reference u/s 18 of The Land Acquisition Act
1. Vide notification no. F.7(15)/09/L&B/LA/575 dated 15.4.10 u/s 4 of LA Act, declaration vide notification no. F.7(15)/09/L&B/LA/5528 dated 28.6.10 u/s 6 of LA Act and notification under Section 9 dated 6.7.10 the land including the land of the petitioner situated at 18, Bouleward Road as per statement u/s 19 of the Land Acquisition Act was acquired by the Govt. and possession was taken on 30.7.10. The Land Acquisition Collector after competing all the formalities as provided under the Act assessed the market value of the land and awarded the compensation @ Rs. 54,600/- per sq. mtr..
2. Vide this award, I shall dispose off the instant reference u/s 18 of the Land Acquisition Act preferred by the petitioner against the respondents being aggrieved with the quantum of compensation awarded by LAC in lieu of the acquisition of land of petitioner. It was stated that the petitioner is a Private Limited Company and a piece of land situated at junction of G.T. Road and Boulevard Road, Delhi was perpetually leased out to petitioner vide lease deed dated 6.9.1951 by Notified Area Committee initially for a period of 30 years at a premium of Rs.52,280/- and on a yearly rent of Rs.1307/- which was renewable for two further periods of 30 years each at the option of petitioner. The land as stated was later on transferred from Notified Area Committee to L&DO. As stated before expiry of first term petitioner exercised its option to renew the lease which was confirmed by L&DO subject to payment of Rs.71,848.87/- which amount was paid by the petitioner and was duly accepted by L&DO. As stated land in question was leased to the petitioner for the purpose of setting up a factory for the manufacture of ice and for other commercial activities such as running a cold storage for storing goods other than foods and vegetables. As stated in pursuance of the lease deed petitioner erected a building for the aforesaid purpose. It was stated that in and around 28.11.06 petitioner applied LAC NO. 5/1/11 Page:-2/28 for conversion of the property in question to freehold, however despite completing all the formalities L&DO did not convert the property in question to freehold and therefore petitioner preferred a writ before Hon'ble High Court and Hon'ble High Court allowed the said writ petition and directed the L&DO to convert the property in question to freehold. As stated petitioner has fully paid the conversion charges and the cheque for the same was also encashed by L&DO on 23.4.10. It was stated that though L&DO preferred appeal against the said order dated 5.4.10 of Hon'ble High Court but no interim stay has been granted in the matter. It was stated that notification u/s 4 of the Land Acquisition Act dated 15.4.10 bearing no. F.7(15)/09/L&B/LA/575 was published on 17.4.10 and at the time of publication of said notice the property in question was a freehold property. As stated land in question was sought to be acquired for public purpose of constructing a Grade Separator at Rani Jhansi Road, Delhi. It was stated that though there was no urgency but Government of NCT applied the provision of Section 17(1) of the Land Acquisition Act to the property in question. Thereafter ADM, District North issued notifications u/s 9 and 10 of the Land Acquisition Act both dated 6.7.10 and then petitioner filed its detailed claims before the ADM whereby petitioner had claimed Rs.7,71,914/- per sq. mtr as market value of the land in question. However, Land Acquisition Collector totally ignored the cogent and reliable evidence supplied by the petitioner to calculate the market value of the acquired property and had illegally valued the property @ Rs.54,600/- per sq. mtr. on the basis of Circle Rates circulated by Revenue Deptt. Govt. of NCT of Delhi vide order no. F2(12) Fin(E.1)/part file/VOL.I/(II)/3548 dated 18.7.08. Accordingly, aggrieved by the award no. 10/LAC/N/10-11 dated 22.12.10 of Land Acquisition Collector petitioner preferred present reference under disposal before this court.
3. Respondent no. 1 and 3 filed separate written statements to the instant reference whereas despite opportunities respondent no. 2 did not file the written statement and accordingly its defence was struck off vide order dated 22.1.13.
4. In written statement filed on behalf of LAC it was submitted that notification u/s LAC NO. 5/1/11 Page:-3/28 4 & 17 of Land Acquisition Act in the area/village " Civil Station" Rani Jhansi Road was issued on 15.4.2010 and declaration u/s 6 was issued on 28.6.10. As stated the land had been acquired for the public purpose i.e. for construction of grade separator at Rani Jhansi Raod. Notices u/s 9 & 10 were issued to the land owners/interested persons inviting claims of the affected properties. As stated after considering all the claims of the land owners/interested parties the Land Acquisition Collector made and pronounced the award no. 10/LAC/2010-2011 on 22.12.2010. It was stated that compensations assessed by the Land Acquisition Collector is sufficient and reasonable and it reflects the true market value prevailing at the time of notification u/s 4 of Land Acquisition Act. It was stated that petitioner is claiming excessive and exorbitant market value of the land and structures. Accordingly, it was prayed that instant reference preferred by the petitioner be dismissed.
5. In written statement filed on behalf of respondent no. 3 LD&O, it was contended by the L&DO that a plot measuring 0.54 acres (2185.30 sq. meters) at Junction of Bouleward Road near old Subzi Mandi was allotted to National Cold Storage by erstwhile notified area Committee on 10.1.1951 which was for limited period of 30years but was further renewed for a period of 30 years w.e.f 5.9.1981. It was stated that out of the total area measuring 2185.30 sq. mtr. a piece of land measuring 1087 sq. mtr was resumed in pursuance of clause (xi) of the lease vide this office letter no. L-II-I (1352)/2000/650 dated 9.11.00 for allotment of land to Delhi Metro Rail Corporation for public purpose and further a piece of land measuring 400 sq. mtr was resumed and allotted to Delhi Metro vide office letter no. L-II-I(1352)/2000/110 dated 17.2.06 for public purpose. It was stated that as such area measuring 1487 sq. mtr total area was resumed from 18, Boulevard Road, Delhi and area measuring 693.30 sq. mtr was left with petitioner. As stated on 5.12.06 petitioner applied for conversion of said land to freehold which was rejected by the department as the case was not covered by conversion policy and conversion charges deposited were refunded vide cheque bearing no. 037270 dated 5.2.07 for Rs.6,07,711/-. As stated after cancellation LAC NO. 5/1/11 Page:-4/28 petitioner preferred writ petition before Hon'ble High Court and Hon'ble High Court allowed the said writ petition against which order respondent L&DO preferred an appeal which is pending. It was stated that vide notification u/s 4 of the Land Acquisition Act dated 15.4.10 bearing no. F.7(15)/09/L&B/LA/575 published on 17.4.10 Government of NCT sought to acquire the petitioners land (khasra no. 277 min) measuring 1183.96 sq. mtrs.. It was stated that Land Acquisition Collector, Delhi awarded compensation in ratio of 75% to petitioner and 25% to L&DO in lieu of acquisition of 1183.96 sq. mtr of land in question, however petitioner cannot be said to be in possession of 1183.96 sq. mtr land as 1487 sq. mtr. was already resumed from it as per L&DO's record. It was stated that L&DO never received any compensation in lieu of the land in dispute acquired by Govt. of NCT of Delhi.
6. Separate replications to the respective written statements were filed in which contents of the reference were reiterated and those of the written statement were denied.
7. On the pleadings of the parties following issues were framed vide order dated 22.1.13:-
1) What was the floor market value of the land in question acquired by the respondent at the time of notification under Section 4 of Land Acquisition Act ?OPP
2) Whether the amount of compensation awarded to the petitioner through award no. 10/LAC/N/10-11 is appropriate?OPP
3) Whether the petitioner is entitled to enhanced to the compensation amount, and if so, at what rate?OPP
4) Relief.
8. Vide order dated 8.2.13 an additional issue was farmed and thereafter issues in the matter stood as follows:-
1) What was the floor market value of the land in question acquired by the respondent at the time of notification under Section 4 of LAC NO. 5/1/11 Page:-5/28 Land Acquisition Act ?OPP
2) Whether the amount of compensation awarded to the petitioner through award no. 10/LAC/N/10-11 is appropriate?OPP
3) Whether the petitioner is entitled to enhanced to the compensation amount, and if so, at what rate?OPP
4) Whether the respondent no. 3 is entitled to any share in compensation awarded by the collector?OPP
5) Relief.
9. Petitioner in support of its case examined Sh. Kumar Srinivasan as PW-1, PW-2 Sh. Pravesh Ghai, PW-3 Sh. T. Minz, Kanoongo, PW-4.
10.In evidence of respondent no. 1 LAC, Ld. Cl. for LAC tendered award in question as Ex. R-1, sale deed dated 24.12.09 Ex. R-2, sale deed dated 10.11.09 Ex. R-3, sale deed dated 18.11.09 Ex. R-4, sale deed dated 29.5.09 Ex. R-5 whereas respondent no. 3 examined Sh. C. Daulaguphu as RW-3/1.
11.I have heard Cl. for both the parties as well as perused the record. I have given thoughtful consideration to the rival submissions made by the parties. My issuewise findings are as under:-
12.Issues no. 1 to 3:- All these issues are taken up together as they are interconnected. 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 it claims to be entitled to the enhanced compensation. Even 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 LAC NO. 5/1/11 Page:-6/28 relationship between the humans animals and even the stones and structures. One may, more often than not, feel the pain of leaving particular abode, locality, city or country.
13. Against this backdrop, unsettling someone from his abode is, without doubt, disturbing if not devastating but then it has to be coped up depending upon the circumstance especially when it is supported by the Legislation (may be through a more than hundred years old 'colonial' legislation, not much amended, retaining its basic features) 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.
14. 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 contemplated under Section 17-A 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 at Bouleward Road for the purpose of grade separator at Rani Jhansi Road and in the process, some individuals were forced to surrender their houses/shops/establishment/factory and land (commercial as well as industrial) which of-course was not to their liking or pleasure.
15. It was a compulsory acquisition so much so that land was required LAC NO. 5/1/11 Page:-7/28 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. After processing the matter, the compensation was fixed by the Land Acquisition Collector at the rate of Rs.54,600/- per sq. mtr. which was not acceptable to the claimants and therefore, the reference was made under Section 18 of Land Acquisition Act whereby the claimants have sought enhancement in the amount of compensation based upon various facts that it was an area located in heart of city, located very close to the prestigious Delhi University, Interstate Bus Terminal, Railway Station, Popular and big markets, on the legendary Grant Trunk Road. Since the land was in possession of its owner for long and they had raised commercial structure over the same according to their own requirement, choice and taste and in the process invested handsome amount of money, were deprived of not only of the means of livelihood but they were also deprived off with the benefits which were available to the claimants on account of its situational advantages and the potential of the property from commercial angle specially when metro is going near the property in question.
All the amenities of good life were available to the claimant at a stones throw and that too of a very high standard and better quality. To elaborate, the claimants have asserted that the land/ houses surrounded by popular residential and commercial areas like Kamla Nagar, Roop Nagar, Shakti Nagar, Malka Ganj, Barf Khana and reputed Delhi University in its toe besides having important commercial civic, educational hospitality and medical establishment such as Oberai Meiden's Hotel, Tirath Ram Shah Hospital, St. Stephen Hospital, District Courts and Railway Claims Tribunals etc., surrounded by lush green area located adjacent to the Northern Ridge which has become so important in the city life as it is a sort of big source of fresh air oxygen which is scarce if not elusive and missing in this metropolis choking with various kinds of pollutions. The importance of such a place can very well be imagined. Whereas while awarding the compensation, it is asserted that the LAC NO. 5/1/11 Page:-8/28 Land Acquisition Collector has not taken into account all these factors and has awarded the compensation which is not suitable to the kind of properties which have been acquired by the Govt.
16. All the above facts and circumstance coupled with the documents the claimants have also placed reliance upon indicating the value of the properties in the vicinity qua which the transactions took place in or around the same time when the notification was published in order to drive home their case that value of the property should have been far more than what has been awarded to the claimants and demanded/ sought that the compensation may be given at the rate of Rs.2,38,474/- per sq. meter alongwith solatium, additional amount coupled with the interest etc. so far as the property at Bouleward Road, village Civil Lines belonging to petitioner is concerned.
17. The MCD, respondent no. 2 which is the beneficiary of the land acquired in the instant reference did not bother to contest the present reference.
18. In this regard, it will be appropriate to refer the broad parameters laid down by the Hon'ble Supreme Court of India in case of Chaman Lal Hargovind Dass Vs. Special Land Acquisition Officer (1988) 3 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 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 utilised LAC NO. 5/1/11 Page:-9/28 by him for making his valuation cannot be utilised by the court unless produced and proved before it. It is not the 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 appellate court.
(3) The court has to treat the reference as an 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 and 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 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).
LAC NO. 5/1/11 Page:-10/28
(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 motivated 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.
(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 may be evaluated in terms of price variation as a prudent purchaser would do. (13) The market value of the land under acquisition has thereafter to be deduced 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 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
LAC NO. 5/1/11 Page:-11/28
to depth
4. nearness to developed 4.lower level requiring the
area 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
acquisition factor 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. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land of say 10000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or when urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards.
(16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which LAC NO. 5/1/11 Page:-12/28 position the judge must place himself.
(17) These are general guidelines to be applied with understanding informed with common sense"
19. In P. Rama Reddi & others Vs. Land Acquit ion 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;
(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 for building purposes;
(v) existence of highways, public roads, layouts 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."
20. In the present case, the acquisition was of compulsory nature as enumerated in Section 17 of the Land Acquisition Act where the IPs were not given opportunity to question the acquisition of the property which was scheduled to be acquired, which incidentally in the instant reference was not only the lands rather the commercial property of the IP carrying out their LAC NO. 5/1/11 Page:-13/28 business for quite sometime facilitated by all necessary perquisites and amenities of a good standard of living. Besides, a handsome amount was spent in constructing the commercial building which was surrounded by an open area added with trees which some way fortunate ones in this city are enjoying. All the civic amenities, essentials for good life were within a stone's throw. The property acquired was located near the National Highway which has its roots in the History even prior to the Mughal period, the foundation of which was laid down by Afghan Ruler Sher Shah Suri and which is now known as Grand Trunk Road. The extended ranges of Aravali Mountains are in the vicinity known as Northern Ridge, University of Delhi is almost adjacent to the properties, facilities like good markets, ISBT, Asia's biggest Court Tis Hazari, Vidhansabha, Lt. Governor's House, being in the periphery of the properties. It is apparent that all the amenities which one may aspire for were available to the IPs at practically no or a very short distance and they were comfortably doing teh business having settled life. The emergent acquisition not only affected the perpetuity, peace, settled life etc. but even created a void in their lives which only a displaced person can feel.
21. The humans by nature are very emotional and tend to get involved with the living objects which is pretty common but it is also not unheard to a kind of fascination/ attachment even to the non-living things. In case, if non- living thing happens to be the abode of family full of memories right from the infancy, adolescence, teens, adulthood and old age, practically all stages of life coupled with happiness, events, anguish, sorrow, jubilation etc. thrown in by fair amount, then it is very difficult to disassociate oneself even from the non-living objects.
22. Against the back drop of the above scenario, the acquisition for the purpose of grade separator at Rani Jhansi Raod, which undoubtedly is good for larger part of the public, by the Govt cannot be faulted or questioned but in these circumstance and even otherwise, the IPs were entitled to suitable compensation which according to the Govt. has already been given to them, LAC NO. 5/1/11 Page:-14/28 but being not satisfied, the present references under Section 18 of the LA Act came into being. However, there cannot be a compensation for the settled life, memories of good times, inextricably attached not only with individuals but place(s) also. There can only be a consolation. Given a choice, no amount of compensation may persuade or compel someone for parting one's house and hearth. 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. And if even that is not suitable than it would be nothing but adding salt to the injury. In any case, there are certain things which cannot be compensated. Thus, the compensation (consolation) in the form of money should be potent enough atleast to console if not compensate. It should not appear to be a kind of mockery to the compulsorily uprooted person under the authority and might of the state, gagged by a century old legislation enacted by British (Colonial) Government. The recent hue and cry and the assurance extended by the Govt. to review the LA Act which is being acted upon with an alarming speed speaks unto itself about the whole issue concerning the land acquisitions in this country. The IP/petitioner has given certain instances of sale and purchase of property which is reflected herein below to show that they are entitled to amount of enhanced compensation.
S. Descript Location Land use Area in Sale Value Sale Sale date Dist Dista Rate per Commerc
No ion of /village Sq. (Rs.) value anc nce sq. Mtr. ial rate
property Mtrs. per sq. e as by After i.e. triple
mtr. the road enhancem the
(Rs.) cro from ent by residentia
w acqui 12% p.a. l rate
flies red Upt the
(km prope date of
) rty/ Section 4
land notice i.e
(kms 15.4.10
)
1 9, Attaur Civil Residential 418.1 81000 19376 04/08/95 1.5 2.5 1,02,759 3,08,276
Rahman Lines
Lane
2 31, Civil Residential 519.2 3,5000000 67410 06/01/10 1.5 2.1 70322 2,10,967
Rajpur Lines
Road
LAC NO. 5/1/11 Page:-15/28
3 1, Civil Residential 1131.16 32,12,49,717 28351 15/12/00 3 3.5 81827 2,45,482
Cavalry Lines
Lane
4 12, Raj Civil Residential 486.61 3,00,00,000 61651 03/02/10 1 1.7 63057 1,89,170
Niwas Lines
Marg,
Civil
Lines
Average sale price per sq. mtr. of the aforesaid four properties comes to Rs. 2,38,474/- per sq. mtr..
23. On the other hand the respondent no. 1 LAC has produced four sale deed Ex. R-2 to R-5 to prove the rate of residential land before the date of notification and have come up with the plea that the method adopted by the LAC in assessing the compensation was appropriate and he has taken into consideration all the factors which were relevant and material. Respondent no. 3 L&DO has not at all produced any independent evidence regarding the market rate and rather have placed reliance upon the evidence produced by the petitioner. Their only argument is that whatever market rate is prescribed the same be given to them or apportioned between petitioner and respondent no. 3. It has been correctly argued by petitioner that as compared to the evidence led on behalf of the respondent No. 1 the evidence brought on record by the petitioner reflects the correct picture and the area shown by respondent is far away and valuation of the property falling in category 'E' locality have been produced. The petitioner has also submitted that the sale deeds of properties produced in evidence by respondent no. 1 are not comparable with the acquired property because the sale deeds brought in by the respondent no. 1 are of properties which are extremely small residential floors ad-measuring 100 sq. mtrs. while the property in question is a four side open property ad-measuring 1183.96 sq. mtrs. The petitioner has submitted that rather in one of the case of Methodist Church Vs. Union of India this court itself had fixed the rate of residential property as Rs.28,351/- pertaining to the land acquired way back in 2000 for metro in nearby situated property in the area of Civil Lines and the judgment Ex. PW-1/25 is the judgment LAC NO. 5/1/11 Page:-16/28 passed in Chaman Lal Mehra Vs. UOI on 14.7.11 with respect to the property involved with the same notification in which the judgment of Methodist Church Vs. UOI was passed. The instances of sale deed relied upon by the respondent cannot be taken into account for two reasons firstly admittedly the property in question falls under village 'Civil Station' as mentioned in the award which comes under Category 'C' as mentioned in the circle rates of Delhi issued vide notification no. F.1(152)/Regn. Br./Div.com./2011/780 dated 4.12.12 read with notification no. F.2(12)/Fin.(E.I)/Part File Vol(ii)/3548 dated 18.7.07 and secondly none of such instances have been taken into account by LAC as per the award. Moreover, the LAC himself has fixed the rate Rs.54,600/- per sq. mtr. and even if the factor of 2 is applied deeming the property as industrial property (though the same is refuted and agitated by the petitioner for the reasons mentioned herein after) still the rates shown by the respondent do not correspond with the rates given by the LAC. The reasons mentioned by the LAC was that sale deed produced by the claimant pertained to freehold properties but the LAC did not take into account the order of Hon'ble High Court whereby this property was also ordered to be converted into freehold on 5.4.10. The second reason given was that the sale deed were out dated but even that is so then 12% per annum enhanced value upto the date of notice issued u/s 4 of LAC Act could have been considered. The Ld. LAC has found fault with the calculations of the petitioner but had failed to give reasons regarding his calculations and has not at all discussed as to what was the basis with the respondent to get the market value fixed at the value assessed by LAC. So reasons prevailing in the mind of LAC while passing the award in question is not available before this court. In these circumstances, the court should keep in mind the estimation and expectation of prospective buyers and sellers. Reference can be made to UOI Vs. Pramod Gupta and Ors 2005(12) SCC 1 wherein it has been held that :-
"24.-While determining the amount of compensation payable in LAC NO. 5/1/11 Page:-17/28 respect of the lands acquired by the State, the market value therefor indisputably has to be ascertained. There exists different modes therefor.
25.-The best method, as is well known, would be the amount which a willing purchaser would pay to the owner of the land." Reference can be made to the judgment in (Viluben Jhalejar Contractor Vs. State of Gujarat (2005) 4 SCC 789)."
24. It has been held in various pronouncements by different Forum that comparable sale value method is most relevant and appropriate method to determine the value of the land acquired so as to award compensation to the affected persons. Reference can be made to Union of India Vs. Pramod Gupta (supra) wherein it has been held that :
"The reference court, it is trite, has to apply the comparable sales method as also the situation of the land which is to be appreciated keeping in view the fact as to whether acquired land is similar to any land sold in the vicinity.
It is no doubt true that courts adopt, comparable sales method of valuation of land while fixing the market value of the acquired land. While fixing the market value of the acquired land, comparable sales method of valuation is preferred than other methods of valuation of land such as capitalization of net income method or expert opinion method. Comparable sales method of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act." Reference can be made to the judgment in (V. Hanu-manthua Reddy Vs. Land Officer & Mandal & ors (2003) 12 SCC 642).
25. The example brought on record by the petitioners indicate that transaction took place within the reasonable time from the acquisitions and of the instances of sales relied upon, were bonafide transactions and not only the LAC NO. 5/1/11 Page:-18/28 properties were located in the adjacent area/ vicinity but had more or less some advantages that were there with the land acquired. The counsel for the petitioner has 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 and asserted that the sale deed having highest value should be given consideration to award the compensation. In this context petitioners have relied upon the judgment in (1969) 1 MLJ (SC) 45, (1968) 2 SCJ 869, (1984) 86 Punj. RL 540.
26. Thus, in these circumstances the instances of the sale deed given by the respondents are hereby discarded. Certain instances have been given by the petitioner as given above and even if the first instance regarding the property bearing no. 9 Atur Rehman Lane, Civil Lines is discarded being much prior to the time still the sale deeds of other property regarding which the transaction had been held are of proximity in time and situation of the property and so the property rate for residential property lies somewhere Rs. 63,057/- per sq. mtr to Rs.81,827/- per sq. mtr. and if the weighted average ratio of sale price is applied then it comes to near about some where Rs. 80,602/-. The weighted average ratio is taken because it also takes the different areas/sizes of the properties into account while taking out the average sale price. (The formula applied to compute the weighted average is to take the total value of the different properties by multiplying the individual plot area by the land rate after escalation at the rate of 12% p.a upto the date of acquisition/ Section 4 notice and dividing the sum total of such values by the sum total of the areas of said properties). Even the Govt. Approved valuer who has deposed as Pw-2 has in his valuation report Ex. PW-2/3 has assessed the value of the acquired land at Rs. 2,43,987/- per sq. meter for commercial land which comes to around Rs.81,329/- per sq. meter for residential land. Accordingly Rs. 78,000/- per sq. mtr. would be a reasonable amount for a residential property as on the date of Section 4 notification. No contrary report has been filed by respondent. The law cannot be applied by divorcing it LAC NO. 5/1/11 Page:-19/28 from the ground realities and hard facts. The Courts are not supposed to shut its eyes rather expected to be alive and responsive to the circumstances and situations prevailing at the ground, only then cause of justice and substantial justice would be addressed and the Courts would be able to justify its existence for the society. The evidence led by the petitioner is potent enough to persuade the court to conclude that the petitioners should get appropriate compensation of the acquired land and appropriateness has to be ascertained on the basis of evidence led before the court by the contesting parties. There cannot be two opinion about the situational advantages, which were available to the land acquired and various benefits emerging out of that if not of the immense potential which was there and could have been available to the owners of the land but for the acquisition. In such circumstances, where the persons were forced under compulsory acquisition to remove their house/establishment and were forced to settle somewhere else, could not possibly be compensated in terms of money but can only be consoled. Therefore, there cannot any kind of compensation on the aspects of life which are associated, attached and revolve around the place, but then in the larger interest of the society, the acquisition is being made by the Govt. and attempt is being also made to rationalize the payment of compensation. The rationalization sometime goes a haywire which results into inappropriate, impractical and disadvantageous situation incapable to eliminate, feeble to remove and insufficient to compensate the loss. Thus, considering all aspects raised by the parties, it appears that the respondents have not come up with anything which may dent the claim of the IP's for enhancement of the compensation amount.
27. Ld. Counsel for the respondents have heavily relied upon the judgment in Sant Parmanand Blind Relief Mission Versus Union of India and Virender Kumar Jain & others Vs. Union of India to hammer their point that the market value fixed by the Govt. is sufficient compensation. The petitioners have tried to distinguish their case by asserting that in these two LAC NO. 5/1/11 Page:-20/28 cases the petitioners did not come forward to lead evidence in support of their claims for enhancement of compensation amount. More so, the case of Virender Kumar Jain (Supra) is apparently not attracted and cannot be a parameter being unrealistic inasmuch as the compensation so awarded on the basis of purchase price of the property which was Rs.188.57 per sq. meter which is far less than the market value determined by the Schedule of Rates provided by the Govt. Agency. Apparently, the said transaction was not a genuine transaction. Since no such situation is there with the case of the petitioners, therefore, Virender Kumar Jain's case (Supra) would not be attracted and it is apparently ridiculously on the lower side and appears to be nothing but a ruse to the whole transaction which was there in that case. No two case are similar, and therefore, the decision are as such not binding rather have persuasive value depending upon the closeness, similarity and Principle of Law involved. In case, the Principle of Law is applicable then of course the judgment is binding, but then the peculiarity in the facts are to be taken into consideration with each case. In this context, reference can be made to the judgment of M.L. Khullar Versus UOI 109 (2004) DLT 163 in which it was observed that the decision is authority for which it is decided and not what can be legible be deduced there from. In this context, reference can be made to the other segment where it has been observed in P.S. Rao Versus State JT 2002 (2) SC 1 that "circumstantial flexibility on additional or different facts may make a word of difference between the conclusion of two cases." Thus, the case relied upon by the respondents are apparently not attracted to the instant case. There cannot be any hard and fast straight jacket formula to work out the appropriate compensation and there is always some amount to guess for which is always involved in the whole exercise and possibly the same cannot be denied but one thing is very much clear that rate of compensation awarded by the LAC is less than what ought to have. It was observed by the Hon'ble Supreme Court in Special Tehsildar Land Acquisition, Vishakhapatnam Vs. Mangala Gauri AIR 1992 SC 666, that the 'market value' will postulate the LAC NO. 5/1/11 Page:-21/28 price of the land prevailing on the date of the notification u/s 4 of LA Act. And market price/value is nothing but what the property can fetch through a transaction between a willing purchaser and a willing buyer without any impediment of any sort such as no obligation or compulsion to sell and no necessity to buy. Reference can be made to M.M Mullick Vs. Secretary of State, AIR 1924 Cal 574. As regards fixing or ascertaining the price the best evidence was the authentic transaction of sale in respect of the every land that was acquired, as was held in Barganu Narasimha Rao Naidu Vs. RDC Vijaynagaram 1980 (1) SCC 75. So the market value is fixed at Rs. 78000/-. It will be per sq. meter for residential property.
28. Now I am coming to the question of nature of land. In order to prove that the land in question is commercial and not industrial the petitioner has produced Ex. PW-1/16, the certified copy of the report dated 30.7.2010, the certified copy of RTI reply letter dated 6.12.10 exhibited as Ex. PW-3/1, Annexure A-3 to notification no. F 13/46/2006-UD/16071 dated 15.9.06 Ex. PW-1/19. All the aforesaid documents as exhibited in the statements of PWs clearly reflect that property in question is a commercial property. Even otherwise in vicinity of the property in question only shops are there meaning thereby the property in question cannot be covered under residential property or industrial property. It has also come in the deposition of PW-1 that no manufacturing activity has been carried out in the property in question and the same is used for the purpose of storage of perishable items. No dent could be created in the statement of PW-1 during cross examination regarding this respect. Rather LAC himself expressly has stated in the award that acquired property is commercial in nature and there was no reason for LAC to deviate from his own observation. There was nothing before the LAC to observe that land was allotted for industrial activity nor it is the case of the L&DO that the land could be used only for industrial purposes and in these circumstances the deposition of witnesses of petitioner has to be accepted. There is no dispute regarding the fact that petitioner is a registered company LAC NO. 5/1/11 Page:-22/28 under Indian Companies Act and when the petitioner is dealing with storage of perishable items and is not into manufacturing of any article, hence the same cannot be covered or termed as an industry. Thus, it is hereby held that land is question is commercial land and is used for such purpose only. It is settled that the commercial rates of land are three times of the residential rates of land. As already observed above the residential land rate of the land in question is fixed @ Rs.78,000/- per sq. mtrs and applying the same above formula the commercial rate of the land in question comes to Rs.2,34,000/- per sq. mtrs.. Thus all the issues are decided in favour of the petitioner and against the respondents and market value of the land in question is fixed @ Rs. 2,34,000/- per sq. mtrs. deeming the property in question as commercial and thus the compensation awarded to the petitioner is less and petitioner is entitled for the enhanced compensation.
29. Issue no. 4:- It is the contention of the petitioner that the land in question is a freehold property and therefore respondent no. 3 has no right or share in the compensation awarded by the LAC. In support of this contention the petitioner has produced the certified copy judgment of Hon'ble High Court dated 5.4.10 Ex. PW-1/9, copy of cheque bearing no. 274946 dated 28.11.06 Ex. PW-1/6 vide which conversion charges were paid, bank statement Ex. PW-1/7 of petitioner showing clearance of cheque Ex. PW-1/6, letter dated 20.4.10 vide which petitioner had returned the refund cheque to respondent Ex. PW-1/8, bank statement of petitioner showing that the cheque bearing no. 950079 was duly encashed Ex. PW-1/10. The controversy is three fold existing between the petitioner and respondent no. 3. Firstly the respondent no. 3 has submitted that the area acquired by the Government i.e. 1183.96 sq. mtrs was not at all in possession of the petitioner as most of the area had already been repossessed by L&DO, hence the petitioner is not entitled to any amount qua the whole area. The next argument is that the order passed by Ld. Single Judge of Hon'ble High Court of Delhi is still subjudice in LPA filed by the department and so they are not duty bound to LAC NO. 5/1/11 Page:-23/28 get the property converted to freehold. Thirdly, even if all those arguments are decided against respondent no. 3 still by virtue of being paramount lessor they have every right to get the apportionment done between the petitioner and the respondent. The arguments have been refuted by the Cl. for the petitioner by submitting that the whole case based by the respondent no. 3 is misconceived. The respondent no. 3 has submitted that the total area given to the petitioner was 2185.30 sq. mtrs but the Cl. for the petitioner has relied upon Ex. PW-1/2 to show that 3300 sq. yards area was handed over to the petitioner and the same could not be refuted by the respondent no. 3. Witness RW-3/1 Daulaguphu could not place on record anything to contend that the area given was 2185.30 sq. mtrs and not 3300sq. yards i.e. 2759.13 sq. mtrs.. There is no dispute that area 1487 sq. mtrs has already been resumed by DMRC and both the parties have consensus to the same. Thus, area balance in possession of petitioner comes to 1272.13 sq. mtrs and so even after acquisition residual area comes to 88.17 which was still in possession of petitioner but as it was of no use so it has become insignificant. Even the possession letter Ex. PW-1/16 shows that possession of 1183.96 sq. mtrs was taken from the petitioner so the argument of the respondent no. 3 does not hold any water.
30. The petitioner has produced following evidence to prove that the contention of the respondent no. 3 is wrong and the actual land available at the time of Section 4 Notification and at the time the possession was taken was 1183.96 sq. meters:-
i) The report of possession proceedings of the said land dated 30.7.10 signed by Kanoongo (L&B Department), Patwari(LA North), Naib Tehsildar (LA North), Naib Tehsildar (MCD/L&E), Kanoongo (MCD/L&E), Patwari(MCD/L&E), JE(MCD Project), AE (MCD Project) clearly states that the said land is a commercial land admeasuring 1183.96 sq. mtrs. The certified copy of the report dated 30.7.10 is exhibited as Ex. PW-1/16.
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ii) Join survey report of the said land dated 8.12.09 signed by Patwari(LA North), Kanoongo T. Minz(LA North), Naib Tehsildar(LA North), Patwari(MCD/L&E), Naib Tehsildar (MCD), Kanoongo(MCD/L&E), Kanoongo (L&B Dept.), Field Kanoongo(Civil Lines), Patwari(Civil Lines), AE(MCD), JE(MCD) and Surveyor(MCD/L&B) clearly states that the said land is admeasuring 1183.96 sq. mtrs. In fact the site plan of the said land prepared at site by the above officials also clearly shows that the said land is admeasuring 1183.96 sq. mtrs. Certified copy of the Joint Survey Report dated 8.12.09 is Ex. PW-1/17.
iii) Award no. 10/LAC/N/10-11 exhibited as Ex.
Pw-1/22 clearly states under the heading "Measurement of True Area"
that:-
" According to the notification u/s 4 and declaration u/s 6 of the Act the total area of the land under acquisition was 1183.96 sq. mtrs. there was no dispute between the area notified as 1183.96 sq. mtrs and the area as measured by AE, MCD while preparing Tatima Field Book and the area available at site at the time of the taking possession i.e. on 30.7.10 and the same was found to be available by Land and Estate Department of MCD at the time of taking possession."
Further in the said award under the heading "
Land use" it has clearly been stated that some portion of the land was in adverse possession of the petitioner. The relevant para of the Award is reproduced hereunder:-
" The property acquired was under use for cold storage and refrigeration works and was situated on Boulevard Road. The property was originally allotted to M/s National Cold Storage and Refrigeration Pvt. Ltd. for the same purpose by Notified Area committee which was subsequently transferred to Land and Development office and subsequent extension of lease has been done by LAC NO. 5/1/11 Page:-25/28 L&DO in favour of M/s National Cold Storage and Refrigeration Pvt. Ltd. Though some area has been in adverse possession of the claimants i.e. National Cold Storage & Refrigeration Ltd. for a very very long period of more than 50 years which was also in the same use."
In addition to the above, Ex. PW-1/2 clearly shows that possession of land ad-measuring 2759.13 sq. mtrs/3300 sq. yards of land was handed over to the petitioner on 11.3.1948 by the modified area committee. This document has not been refuted by the respondents at any stage. Having said this even if the contention of the respondent no. 3 is accepted that land ad-measuring 1087 sq. mtrs. was repossessed from the petitioner in the year 2000 and again land ad-measuring 400 sq. mtrs was repossessed from the petitioner in the year 2005 still land ad-measuring 1272.13 sq. mtrs remained with the petitioner at the time of notification u/s 4. Under Section 4 Notification land ad-measuring 1183.96 sq. mtrs was acquired. Even after this as per records land ad- measuring 88.17 sq. mtrs still remains with the petitioner. However the petitioner has not claimed any compensation in this regard. Thus in these circumstances the plea of respondent no. 3 is rejected and it is held that area 1183.96 sq. mtrs. was acquired from the petitioner by respondent no. 1 for respondent no. 2.
31. The other two argument that the area has not been declared freehold so they are entitled to the relief is also of no use because when the possession was taken and compensation was calculated by LAC and reference was made u/s 18 there was clear cut directions of Hon'ble High Court of Delhi in writ petition Ex. PW-1/9 and order dated 5.4.10 vide which L&DO was duty bound to get the land converted to freehold. Rather it is strange case where the petitioner has deposited the amount twice which is lying with L&DO regarding the conversion from leasehold to freehold and the respondent no. 3 has never bothered to even forcibly refund it and have not sought any direction from any court for the same. Admittedly there is no stay in the LPA and thus LAC NO. 5/1/11 Page:-26/28 the argument of the respondent no. 3 is misconceived. There is a simple answer to the argument of the respondent no. 3 that if before the acquisition, the property would have been converted to freehold and thereafter if the land has been acquired what would have been the status of L&DO i.e. respondent no. 3. The preposition can be simply answered that they have no right of compensation in that eventuality and facts and circumstances have not at all improved the case of L&DO in the present case. So this cannot be a case as apportionment of compensation between landlord and tenant but in a way this is a compensation claimed by an owner who has taken the property on lease hold from Government required to be converted into freehold as per directions of Hon'ble High Court. It was admitted by the witness of the respondent no. 3 that if the property would have been converted to freehold then they would have no right to claim any compensation. Thus, in these circumstances the respondent no. 3 has failed to prove its case and this issue is decided in favour of the petitioner and against the respondents and it is held that respondent no. 3 is not entitled to any share in the compensation awarded by the Collector.
19.Relief:- In view of the findings qua the issues herein above, the reference is answered and market value of the land of the petitioners in respect of the property bearing 18, Bouleward Road which was acquired through the notification No. F.7(15)/09/L&B/LA/575 dated 15.4.10 U/s 4 of the LA Act, is fixed at Rs.2,34,000/- per sq. meter, which the petitioner shall be entitled to claim compensation from the concerned LAC as mentioned in the Statement under Section 19 of LA Act on which 30% Solatium shall be admissible to the petitioners in terms of Section 23 of L.A. Act. The interest @ 12 % p.a. from the date of notification u/s 4 of LA Act till the date of award or possession which ever is earlier as per Section 23 of LA Act is also granted. As the acquisition was compulsory in nature, therefore, the petitioners is entitled to the interest at the rate of 9% for the first year from the date of dispossession and at the rate of 15% on the difference between the enhanced compensation awarded by this Court and the compensation awarded by the LAC for the LAC NO. 5/1/11 Page:-27/28 subsequent period till the payment is made to the petitioners. The petitioner is further entitled to the interest on the Solatium/ additional amount in terms of the judgment of Hon'ble Supreme Court of India in Sunder Versus UOI DLT (2001) SC 569. Reference is answered accordingly. Copy of the Award be sent to the concerned LAC to make payment of enhanced amount of compensation to the petitioner 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. As the 25% amount was awarded to the respondent no. 3 by LAC now as per observations made herein above the same be given to the petitioner. No order as to cost. Decree be drawn accordingly. File be consigned to record room.
Announced in open court (Ajay Goel)
on 30.4.13 ADJ-14(Central)/Delhi
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