Delhi District Court
Mr.M.L.Wadhera vs Union Of India on 27 January, 2012
IN THE COURT OF MS.NIVEDITA ANIL SHARMA,
ADDITIONAL DISTRICT JUDGE-02, WAKF TRIBUNAL,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Suit Number : 01/08.
Unique ID Number : 02403C0975762008.
Reference under section 18 of Land Acquisition Act
1. Mr.M.L.Wadhera
2. Mr.Rohit Wadhera
3. Mr.Amit Wadhera
(All through their General Attorney)
Mr.A.C.Kapoor
Resident of Triveni Garden, Gadaipur,
Jaunpura Road, Mehrauli District, New Delhi-110030.
.............................................................................................Petitioners.
Versus
1. Union of India
(Service to be effected through its Secretary)
Ministry of Urban Development, Nirman Bhawan, New Delhi.
2. Government of National Capital Territory of Delhi
Land and Building Department,
Vikas Bhawan, New Delhi.
3. Delhi Metro Rail Corporation
..........................................................................................Respondents
.
Award Number : 02/2004-2005.
Award announced on : 08.10.2004.
Purpose of acquisition : For station facility of MRTS
project on Connaught Place
-Dwarka Corridor of DMRC Ltd.
Name of Village/Locality : Barakhamba Road, Connaught
Place, New Delhi.
Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
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Date of institution of reference petition : 06.02.2006.
Date of conclusion of arguments : 27.01.2012.
Date of judgment : 27.01.2012.
Appearances: Mr.Bharat Ahuja, counsel for all the petitioners.
Petitioner number 1 in person.
Mr.Sachin Nawani, counsel for the respondent number 1.
Mr.B.K.Vashisht, counsel for the respondent number 2.
Mr.S.K.Jha, counsel for the respondent number 3.
**********************************************************
JUDGMENT
1. This is a case of a senior citizen i.e. petitioner number 1, Mr.M.L.Wadhera, who is of advanced age of 78 years and an endeavour has been made to dispose the same expeditiously.
2. This is a reference petition under section 18 of the Land Acquisition Act (hereinafter referred to as the Act) filed by Mr.M.L.Wadhera, Mr.Rohit Wadhera and Mr.Amit Wadhera through their General Attorney, Mr.A.C.Kapoor, the petitioner, against Union of India, the respondent number 1 (hereinafter referred to as the UOI), the Government of National Capital Territory of Delhi, Land and Building Department, respondent number 2 (hereinafter referred to as the L & DO) and Delhi Metro Rail Corporation, the respondent number 3, (hereinafter referred to as the DMRC). The petitioners, claiming to be the owner of this property, got their petition under section 18 of the Act referred to the Court for enhancement of compensation awarded in respect of the acquired land.
Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
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PETITION
3. It is averred by the petitioners that a flat measuring 1100 square feet bearing No.B-9, Kanchanjunga, situated in the basement within the acquired land of 592 square meters at Kanchanjunga Building, 18, Barakhamba Road, New Delhi, owned by the petitioners, had been acquired vide award bearing number 02/2004 dated 08.10.2004 vide issuance of notification under sections 4 and 17 of the Act dated 27.04.2004 and notification under section 6 of the Act dated 09.06.2004 for the purpose of Delhi Metro Rail Corporation for the construction of Metro Rail Station. Possession of this land was taken on 06.07.2004. The Land Acquisition Collector (herein after referred to as LAC) has assessed the compensation @ Rs.57,960/- per square meter which is too low, arbitrary, without any reasonable basis and the same is not acceptable to the petitioner. LAC treated this land as being used for commercial purposes vide his award dated 08.10.2004 and assessed the amount of compensation at Rs.57,960/- per square meter (or Rs. 5,385.115 sq. feet). Separate compensation of Rs.31,45,063/- was awarded for structure/other things as per the valuation report given by DMRC duly vetted by PWD. The property in question which is known as Kanchanjunga Building, 18, Barakhamba Road, New Delhi is of commercial nature and also had many fixtures and amenities which had to be reconstructed due to the acquiring of the land for the respondent number 3, DMRC regarding which the petitioners had to bear expenses and unnecessary expenses. As the front portion of the property in Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
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question had been acquired, the value of the property has tremendously deteriorated as there is no frontage left in the building and even the access of the building has to be made from rear side due to which there is loss of business, electricity charges. Petitioner has claimed the compensation amount as inadequate and unjustified on several grounds. As the property in question was a lease hold property, so a separate reference under section 30-31 of Land Acquisition Act was also forwarded due to dispute of apportionment of the compensation amount between the petitioner (lessee) and L&DO (Lessor). Request for enhancement of the compensation for the acquired land is made. In the present reference, the petitioner has claimed enhanced compensation of land at the rate of Rs.1 lac per meter as well as some other losses occurred to them due to acquisition proceedings by taking several grounds which shall be discussed later on.
SERVICE AND WRITTEN STATEMENTS
4. Both the respondents i.e. UOI and L & DO were served with the notice of the reference petition and pursuant there to, they had appeared and filed their respective written statements contesting the case wherein they have controverted and rebutted all the averments made in the petition submitting that the compensation award is justified ,correct and reasonable.
5. During the pendency of the matter, vide order dated 08.05.2006 of the learned predecessor of this Court, the DMRC was Suit Number : 01/08.
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impleaded as a necessary party and was served with the notice of the reference petition. The DMRC filed its written statement contesting the case wherein it has controverted and rebutted all the averments made in the petition submitting that the compensation award is justified,correct and reasonable.
6. It is also submitted that the compensation has been awarded on the higher side as MNCs etc. have shifted from Barakhamba Road, Connaught Place to the satellite towns of Gurgaon and Noida and market value of the property has diminished. Prayer for the dismissal of the reference petition is made.
ISSUES
7. From the pleadings of the parties, vide order dated 02.08.2006 of the learned predecessor, the following issues were framed:
1. What was the market value of the property in question at the time of issuance of notice u/s 4 of the LA Act? OPP.
2. Whether the petitioner is entitled to enhancement of compensation, if so,to what amount? OPP.
3. Relief.
EVIDENCE
8. In order to prove their case, the petitioners have examined as many as five witnesses namely Mr.Subhash Kapoor, their General Power of Attorney, as PW1 and petitioner number 1, Mr.M.L.Wadhera, Suit Number : 01/08.
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as PW2.
9. The petitioner's evidence had been closed on 21.05.2009 and thereafter the petitioner had been examined subsequently after an application filed on behalf of the petitioner under section 151 of the CPC for leading additional evidence had been allowed vide order dated 27.01.2012.
10. On behalf of the respondents, Mr.G.U.Ratra, Deputy Land Building Officer, was examined as RW1. The counsel for the UOI also tendered in evidence the copy of award, schedule of market rates and five sale deeds were only tendered in evidence.
11. PW1, Mr.Subhash Kapoor, has filed his affidavit in his examination in chief reiterating and reasserting the averments made in the reference. He has also relied upon the copy of lease deed with M/s Tata Finance Ltd. as Ex.PW1/2. He has been cross examined at length.
12. PW2, Mr.M.L.Wadhera, petitioner number 1, has filed his affidavit in his examination in chief reiterating and reasserting the averments made in the reference. In his cross examination, he has deposed that he does not know whether Kanchanjunga Building has been re-entered by the L & DO and whether any writ petition is filed against the order of the L & DO to re-enter the property. He has not filed any sale deed with respect to ascertaining the market value of the Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
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land in question before the LAC before the award was passed. Kanchanjunga Buildingwas constructed on the lease hold land leased by the L & D O. He has not filed any document of ownership of the petitioners of the flat. He has denied the various suggestions given to him by the respondents.
13. RW1, Mr.G.U.Ratra, Deputy Land Building Officer , has filed his affidavit in his examination in chief reiterating and reasserting the averments made in the written statement. In his cross examination, he has deposed that he does not have any personal knowledge of the rates prevailing in the Connaught Place in the year 2004 and he does not have any personal knowledge of the proceedings before the LAC.
14. The respondents have also laid reliance on copies of five sale deeds of adjoining areas which are Ex.RW2/2 to Ex.RW2/6.
ARGUMENTS
15. I have heard the arguments at length and have given my conscious thought and prolonged consideration to the material on record, relevant provision of law and the precedents on the point.
16. After due consideration, the issues are decided as follows:
ISSUE NUMBER 1 Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
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17. Issue number 1 is........What was the market value of the property in question at the time of issuance of notice u/s 4 of the LA Act? OPP.
18. Before deciding these issues, let us examine whether the reference petition has been filed by the petitioner within the limitation period. The award in question was announced on 30.06.2004 and the Indraprakash Apartment Occupants Association (Regd.) had filed a letter/application/ reference dated 14.07.2004 to the LAC who declined vide order dated 24.04.2006. Vide order dated 16.01.2007 of the Hon'ble High Court of Delhi, the letter dated 14.07.2004 was ordered to be treated as a request for a reference under section 18 of the Act and for referring the same to the Court.
19. In this context, a reliance can be placed upon the judgment reported as Bharat Chand Dilwali v. UOI 1988, RLR 224 wherein it was held by the Hon'ble High Court of Delhi that bare knowledge of the award is not enough. Parties must have knowledge of the contents of the award. Further in Rajjan Hirabhai Motibhai & Ors v. Deputy Collector, Land Acquisition and Rehabilitation, Panam Project, Godhra and Ors., AIR 1995 Gujrat 170, it was held by the Hon'ble High Court of Gujarat that Collector has not merely to intimate parties about passing of award but he has to communicate essential contents of award, if not copy of award. The counsel for the respondents have not led any evidence on record that the essential contents of the award were Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
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communicated and the petitioners had constructive or actual knowledge of the award at the time of announcement of the award by the LAC and the reference petition is barred by limitation. Therefore, as there is nothing on record which shows that petition is barred by limitation, I hold that the reference petition has been filed within the period of limitation.
20. The crucial date to find out and assess the quantum of compensation is the date of notification under section 4 of the Act i.e. 27.04.2004. The petitioners, in their present reference petition, have claimed compensation for land at the rate of Rs.1 lac per square meter but their own admission made in his claim application, it is claimed that the falt in question was fetching a rent of Rs.22,000/- per month and as such 16 times the annual rental formula is applicable for the grant of compensation. It is also claimed that the capitalization method is to be applied in the case of rented properties and keeping in view all these facts, the claimants claimed a compensation of Rs.44,00,000/- plus solatium of 30 % plus interest at the rate of 12 % from the date of notification till the date of payment. The contents of the award so disclose and no dispute is raised in this regard by petitioner. Counsel for the respondents have argued that the maximum limit of enhanced amount, if any shall be Rs.44,00,000/- only, if petitioners are otherwise able to prove it, so claim made by petitioners now in the reference petition at Rs.1 lac per square meter as the market price of the land is liable to be rejected outrightly being highly excessive, unreasonable, Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
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inappropriate and beyond the demand.
21. 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 sought to be acquired by the government, situation, nature, potential/ user and neighbouring land, etc, is to be considered. In this context, I would prefer to rely 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. v. 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.
22. In Spl. Tehsildar, Land Acqn. Vishakhapatnam v. 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 Suit Number : 01/08.
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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.
23. In the case of Shakuntalabai (Smt) & Ors. v. State of Maharashtra, (1996) 2 SCC 152, 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 behalfof 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.
24. It is pertinent to mention here that the Hon'ble Supreme Suit Number : 01/08.
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Court of India and the Hon'ble High Court of Delhi have held in catena of judgments that same rate of compensation should be awarded to the claimants for similarly situated land, same date of notification and same purpose of acquisition of the land.
25. In Krapa Rangiah v. Special Deputy Collector, Land Acquisition (1982) 2 SCC 374, the Hon'ble Supreme Court of India held that the area being comparable, the situation also being the same and all the plots having been acquired under the selfsame notification for Housing Scheme it seems to us proper that the same rate of compensation should be awarded to the claimant herein as was awarded by the High Court in Appeal No.50 of 1970. The Hon'ble Supreme Court enhanced the compensation granted to the claimant by Rs. 2 per sq. yard. with consequential increase in solatium and interest.
26. The hon'ble Supreme Court in the case reported as Nand Ram v. State of Haryana, JT 1988 (4) SC 260 has held that if a compensation amount is already fixed for a land then the same amount of compensation has to be given to other land owners whose similarly placed and situated adjacent is acquired under the same notification.
The state cannot refuse to pay in respect of lands acquired under the same notification, compensation awarded to the land owners whose similarly situated lands had been acquired under the same notification for the same purpose by the notification of the same date.
Suit Number : 01/08.
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27. The counsel for respondents, in this regard, have relied upon judgment of the hon'ble Supreme Court reported as Union of India v. Pramod Gupta, AIR 2005 Supreme Court 3708 where in it is held that compensation amount should not exceed the amount claimed. However, this submission is liable to be rejected because Supreme Court in this judgment dealt with the provisions of section 25 of Land Acquisition Act as it stood prior to year 1984 which has now been amended and there are now no bar to claim compensation in excess to the demands once raised.
28. The petitioner, as PW2, in paragraph number 2 of his affidavit of evidence has averred that the land in question was owned by all the petitioners but this fact is totally wrong as it was a land belonging to L & DO and the petitioner was only a lessee of the same.
Similarly, in some paragraphs of his affidavit, he had claimed compensation for beyond the pleadings and these facts point out towards malafide intention of the petitioners to mislead the Court but it can be ignored.
29. There is no dispute that the acquired property in question which is a lease hold property was being used as a commercial property. LAC had also as per his award treated it as commercial one. Earlier, the permissive use of the same was residential, but there is no dispute that petitioner got converted the same into commercial use in the year 1989 by following the proper procedure and by paying necessary conversion Suit Number : 01/08.
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charges.
30. The petitioner number 1, in his affidavit of evidence, has given details about the nature of construction, facilities available, use and benefits of his building but forgot that LAC had not acquired his Kanchanjunga Building or any part of the same but has acquired only some open vacant space in front of this building where there was no ground level construction and that space was only maximum used as parking or land scapeing purposes. Therefore, the Court while deciding this issue is only concerned with the market value of land and not with the structure of main building situated at some distance, though certain underground structure i.e. water tank existing in the acquired land can be taken note of.
31. Now in order to solve the controversy, what was the market value of the land in question, whether compensation awarded by the LAC under the award at the rate of Rs.57,960/- per square meter (or Rs. 5,385.115 square feet) is justified and whether the petitioner is entitled for any enhancement of compensation, following points raised by the parties in evidence and arguments are being considered. The relevant date to find out the market value of the property is to be taken as the date of notification under section 4 of Land Acquisition Act i.e. 27.04.2004 .
(i) SALE DEED OF THE SAME ACQUIRED PROPERTY:
Suit Number : 01/08.
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32. Acquired land in question is a leasehold land and petitioner was only a lessee of the same and not its owner. According to the judgment of the hon'ble Supreme Court reported as Shakuntlabai v.
State of Maharashtra, (1996) 2 SCC 152 and T.S. Ramachandra Shetty v. Chairman, Karnataka Housing Board, II (2009) SLT 638 the best way to determine the market value of acquired land is to find out at what rate it was purchased by the owner and in that situation, value of adjacent or nearby lands need not be taken into consideration. In another matter, Bangaru Narasingha Rao v. Revenue Divisional Officer, AIR 1982 SC 63, it was held that there cannot be any doubt that the best evidence of the market value of the acquired land is afforded by transactions of sale in respect of that very acquired land, provided of course there is nothing to doubt the authenticity of the transactions. But here in this case, as the petitioner was not the owner of the acquired land but it was owned by a Government agency i.e. L & DO, so no question of looking into any previous sale deed of this property arises. Otherwise also there is no such sale deed on record. As this method is not available to the Court to find out the approximate market value of the land, so, accordingly, other methods have to be searched to find out the market value of the acquired property in question.
(ii) SALE DEEDS OF NEARBY AREAS
33. Another important way to assess the market value of the acquired land is to see at what rate similar type of lands in the same or Suit Number : 01/08.
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nearby areas were sold during the relevant period as held by the hon'ble Supreme Court in Special Deputy Collector v. Kurra Sambasiva Rao, AIR 1997 SC 2625 and APMC v. Land Acquisition Collector, JT 1996 (9) SC 432. In these cases, the theory of a prudent buyer was involved and it was held that the judge should sit in the arm chair of the willing buyer and seek an answer to the question whether in the given set of circumstances as a prudent buyer, he would offer the same market value which the Court proposed to fix for the acquired lands in the available market conditions.
34. The petitioner number 1, as PW2, has not placed on record any sale deed whereas counsel for respondents also placed on record five sale deeds Ex.R-2 to R-7 to show the approximate market value of the similar type of properties in the same and adjoining areas. The details of sale deeds are as under:
SALE DEEDS RELIED UPON BY THE RESPONDENTS Sr. Ex.
Description of Area Sold Date of Sale Average
No. No. property Sale consideratio value in
n rupees
in Rupees
1. RW1/2 M-11, Gokul 98.167 sq. 28.08.2002 17,10,000 17,419.29
Niwas meter per sq.
Connaught Or meter
Place 1056.67 Or
(constructed sq. feet 1,618.29
upper ground per sq. feet
floor with roof
rights and AC)
Suit Number : 01/08.
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2. RW1/3 B-45-47, 59.060 sq. 05.09.2002 30,00,000 50,795.80
Connaught meter per sq.
Circus , New Or meter
Delhi 635.72 sq. Or
(shop on ground feet Rs.
floor) Or 4,719.05
per sq. feet
3. RW1/4 M-11, Gokul 98.167 sq. 28.08.2002 17,10,000 17,419.29 Niwas meter per sq. Connaught Or meter Place 1056.67 Or (constructed sq. feet 1,618.29 upper ground per sq. feet floor with roof rights and AC)
4. RW1/5 M-11, Gokul 98.167 sq. 28.08.2002 17,10,000 17,419.29 Niwas meter per sq. Connaught Or meter Place 1056.66 Or (constructed sq. feet 1,618.29 upper ground per sq. feet floor with roof rights and AC)
5. RW1/6 6, Central Lane, 275.92 sq. 10.03.2003 1,25,00,000 45,302.98 Babar Road, meter per sq. Bengali Market Or meter (constructed 2969.978 Or property from sq. feet 4,208.78/-
basement to per sq. feet
second floor)
37. Mere production of sale deeds on record itself is not Suit Number : 01/08.
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sufficient to consider the same in evidence. Similarly mere registration of document itself is not sufficient to prove its contents also. Though under the Act, production of certified copies of sale deeds instead of original is admissible but it is also required that vendor or vendee or scribe of those sale deeds should be examined. Full Bench of the hon'ble Supreme Court in the case reported as Special Deputy Collector v. Kurra Sambasive Rao, AIR 1997 SC 2625 held as follows:
"Section 51-A of the Act only dispense with the production of the original sale deed and directs to receive certified copy for the reason that parties to the sale transaction would be reluctant to part with the original sale deed since acquisition proceedings would take long time before award of the compensation attains finality and in the meanwhile the owner of the sale deed is precluded from using the same for other purposes vis-à-vis this land. The marking of the certified copy per se is not admissible in evidence unless it is duly proved and the witnesses viz. the vendor or the vendee are examined."
38. Similar view was made in another judgment of the hon'ble Supreme Court in the case reported as P. Ram Reddy v. Land Acquisition Officer, (1995) 2 SCC 305 wherein it is held that the certified copies of registered documents, though accepted as evidence of transactions recorded in such documents, the Court is not bound to act upon the contents of those documents unless person connected with such documents gives evidence in court as regards them and such evidence is accepted by the court as true.
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39. Here, in the present case under consideration, both the parties have simply placed on record the sale deeds without examining the party to those deeds so in view of the law laid down above, sale deeds of both the parties cannot be considered in evidence and liable to be rejected straightway. However, still even if the same are relied upon and taken into consideration, then also the same are of no help to any of the parties for the following grounds and reasons.
40. Sale deeds, Ex. RW1/2, RW1/4 and RW1/5, produced by the respondents are pertaining to same date, on the same floor adjacent to each other in the same premises and purchasers of the same belongs to same family. These sale deeds are relating to constructed property along with facilities of heavy AC and roof rights. The same cannot be relied upon and are not fit to be taken as reflecting true market value as the nature of acquired land is totally different from the property sold under these sale deeds. Sale deed Ex. RW1/2 is relating to small shop whereas sale deed Ex.RW1/6 is situated at some distance and relates to residential property. Sale deeds Ex. RW1/2 to 6 produced by respondents, if are taken into consideration would, in fact, reduce the compensation amount already awarded by the Collector to a considerable extent which is not permissible in law and thus these sale deeds cannot become basis of assessing the market value of the acquired land in question. Otherwise also, if the contents of the award are seen then also it appears that Collector himself had not relied upon the same but assessed the compensation amount on basis of market Suit Number : 01/08.
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rates as approved by the Government. Moreover, these sale deeds relate to smaller size constructed property or shops and not in respect to any vacant plots such like the acquired land in question and therefore are unfit to become base of calculation of approximate value of acquired land.
41. Accordingly, none of the sale deeds either produced by the respondents can be considered and are found not fit to determine the approximate market value of the acquired land in question. The various case laws cited relating to general tendency of the people to undervalue the sale consideration in sale deeds is not relevant to the present situation when the sale deeds of both parties are being rejected.
(iii) ABSENCE OF ANY VALUATION REPORT OR OTHER EVIDENCE
42. The petitioners have not examined any Government approved valuer, property dealer or real estate broker to determine the market value of the acquired land in question. How and on which basis, they are claiming sum of Rs.1 lac per square meter as market rate on the date of notification is not disclosed. If any demand is raised then the basis of that demand should be also disclosed but here there is no evidence on record that there was any increase of prices in the area of Barakhamba Road at the relevant time of acquisition or what was the extent and percentage of that increase.
Suit Number : 01/08.
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43. Request of the learned counsel for the petitioner to take judicial notice of the fact that from year 1997 to 2003, there was an escalation of prices of immovable properties in Delhi cannot be accepted because the burden to prove this issue was upon the petitioner in which he has failed. Otherwise also, there is no criteria available to find out the extent and degree of such alleged escalations. In the absence of any such evidence, there remains no other option except to follow the Government approved rates of land in the area where acquired land in question is situated and to give yearly appreciations as per settled law.
(iv) SCHEDULE OF MARKET RATES OF GOVERNMENT AND YEARLY APPRECIATION
44. Under the Schedule of Market Rates issued on 16.04.1999 by the Ministry of Urban Affairs and Development (Land Division), the Government has fixed prices of land in the different areas in Delhi State and as per this circular the land rate in Barakhamba Road was assessed at Rs.57,960/- for commercial use valid till 31.03.2000. This land rate thereafter was not revised after 31.03.2000. LAC also has relied upon the same in his award and fixed the amount of compensation accordingly. Notification under section 4 of the Act was issued on 27.04.2004 . LAC concerned at the time of passing of award had not given any appreciation of almost three years on these rates.
45. Hon'ble Delhi High Court in the case of Ajay Kumar v.
Suit Number : 01/08.
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Govt. of NCT of Delhi, WP (C) no. 2109/08 decided on 17-2-2009 has held that the circle rates though are meant for imposing minimum stamp duty purposes but can be relied upon if there is a close proximity of notification under section 4 of the Land Acquisition Act and there is no other evidence to determine the market value.
46. After rejecting the sale deeds, this fact is now not in dispute and in fact admitted one that except the schedule of market rate, there is no other criteria available on record to determine the market value of the acquired land. The learned counsel for the petitioner has relied upon case laws like Bedi Ram v. Union of India, 93 (2001) DLT 150, Rameshwar Solanki v. Union Of India, 57 (1995) DLT 410 and Delhi Simla Catholic Archdiocese v. Union Of India, 2002 VI AD (Delhi) 315 and has argued that normally 12% appreciation per year is given by the courts on proved sale deeds or established previous market rates etc. so at least this much appreciation should have been allowed to the petitioner even on the market value as fixed under the award. However, as per decision of the hon'ble Supreme Court given in Mehtab Singh v. State of Haryana, AIR 1995 SC 667, grant of 12% increase in price in each and every acquisition is not necessary. It depends upon the degree of escalation in the market.
47. The hon'ble Apex Court in the case reported as The General Manager, ONGC v. Rameshbhai Jivanbhai Patel, JT 2008 (9) SC 480 held that increase in market value in urban/semi-urban areas Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
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is about 10% to 15% per annum, the corresponding increase in rural areas would at best be around half of it, that is about 5% to 7.5% per annum, in the absence of evidence of sudden spurts or fall in prices.
48. The petitioners have not brought on record an iota of evidence regarding degree of escalation of land rates in any particular year or during acquisition proceedings but keeping in view the fact that Barakhamba Road is a prime commercial area located in metropolitan city of Delhi and the capital of India, the Court, by treating the same as urban area, deems it proper to give appreciation of 12% per annum. Accordingly, I am of the considered opinion that the LAC was required to give appreciation of the period from 01.04.2000 to 27.04.2004 on the market value of Rs.57,960/-.
49. Here it is pertinent to mention that in the LAC case titled as S.Tej Pratap Singh v. Union of India and another, Suit Number :
53/08/06; Unique Case ID Number: 02403C0974282008 decided on 06.07.2011 pertaining to acquiring of lease hold vacant land measuring 584.780 square meters out of property/land bearing plot number 48, Block 148, also known as 23, Barakhamba Road, New Delhi, owned by S.Tej Pratap Singh, the petitioner, acquired vide award bearing number 1/2004 dated 30.06.2004, this Court has ordered enhancement of compensation at Rs.23,469/- (Rs.81,429 - Rs.57,960) per square meter in respect of his acquired land.
Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
M.L.Wadhera and others v. Union of India and others. -:: Page 23 of 30 ::-
50. Paragraphs 42, 43 and 63 of the said judgment are reproduced as under:
42. Hence, after giving yearly compounded appreciation at the rate of 12% per year on the Government approved rates, the market value of the acquired land in question is assessed as follows:
Ist year appreciation = Rs.57,960/- x 12% = Rs.6,955.20 (01.04.2000 to 31.03.2001) (Base market price as on 31.03.2001 = Rs.57,960/- + Rs.6,955.20 =Rs. 64,915.20 paisa 2nd year appreciation = Rs.64,915.20 x 12% = Rs.7789.824 (01.04.2001 to 31.03.2002) (Base market price as on 31.03.2002 = Rs.64,915.20+ Rs.7789.824 =Rs. 72,705.024 paisa 3rd year appreciation = Rs.72,705.024 x 12% =Rs. 8724.60 (01.04.2002 to 28.03.2003) (Market price as on 28.03.2003 = Rs.72,705.024 + Rs. 8724.60 =Rs.81,429.62 paisa
43. Since three days are taken extra, so the round figure of compensation according to the market value of the acquired land in question should have been assessed at Rs.81,429/- per square meter. The compensation awarded to petitioner by LAC at the rate of Rs.57,960/- per square meter is inadequate and unreasonable. The petitioner is, accordingly, entitled to enhancement at Rs.23,469/- (Rs.81,429 - Rs.57,960) per square meter in respect of his acquired land.
63. The petitioner is, therefore, entitled to enhancement of compensation to the tune of Rs. 23,469/- per square meter along with 30% solatium. He is also entitled to additional amount at the rate of 12% p.a. from the date of notification till Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
M.L.Wadhera and others v. Union of India and others. -:: Page 24 of 30 ::-
the date of possession i.e. 28.03.2003 to 22.07.2003 as per provisions of section 23 (1-A) of the Act. The petitioner shall be entitled to the interest at the rate of 9% for first year from the date of taking of possession of land in question and 15% for subsequent years till the entire payment of compensation is made as per section 28 of the Act. The claims of the petitioner regarding the other different type of losses are rejected.
51. Hence, as the property in question is situated similarly, the said enhancement is also required to be made in favour of the petitioners in order to maintain parity. The evidence relied upon or led by parties has already been discussed and considered in detail in another case titled as S.Tej Pratap Singh v. Union of India and another, Suit LAC Number 53/08/06; Unique Case ID Number 02403C0974282008, decided on 06.07.2011 by this Court. There is no additional ground or evidence on record in this case which gave any other special concession to the petitioners or to make their land superior to other's land acquired by the respondents.
(v) APPLICABILITY OF ANY DEDUCTION FROM THE COMPENSATION AMOUNT
52. The learned counsel for the respondents, while citing case law Special Tehsildar v. Smt. A. Mangala Gowri, AIR 1992 SC 666, Subh Ram v. Haryana, State 2010 I AD (SC) 619 and Kalawati Devi v. Haryana State, 1996 (2) Punjab Law Reporter 471 also have argued that deductions of atleast 50-60% should be made in case of any enhancement of value of acquired land but this plea is not acceptable. It Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
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is deposed by PW1 that all sorts of facilities and civic amenities were available in the acquired property which was touching on two sides and area was fully developed. This fact is not in dispute that the area was duly approved for commercial activities by the competent authorities as well as by Master Plan of Delhi. It was admittedly well connected with transport and telephone, electricity, water and sewerage facilities were provided therein. There was no further chance to develop the same in any manner. The hon'ble Supreme Court in the case reported as Bhagwathula Samanna v. Special Tehsildar, AIR 1992 SC 2298 held that deduction in land value is not warranted when it is already developed and every type of facilities are available in the vicinity. In such circumstances, no deduction from the compensation amount as assessed above is permissible.
53. Accordingly, this issue is decided in favour of the petitioners and against the respondents by holding that on the date of notification under section 4 of the Land Acquisition Act, LAC was required to take the amount of Rs.81,429/- per square meter as the market value of the acquired land in question.
ISSUE NUMBER 2
54. Issue number 2 is .......... Whether the petitioner is entitled to enhancement of compensation, if so,to what amount? OPP LOSSES Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
M.L.Wadhera and others v. Union of India and others. -:: Page 26 of 30 ::-
55. The petitioners, in their reference petition, have claimed compensation on various accounts such as loss of rental income etc.
56. However, in his affidavit of evidence, the petitioner number 1 has only claimed compensation for the loss of construction of the structure of the flat using first class material but no proof of any such losses is brought on record by him. Non raising of any such claims in evidence clearly leads to the inference that averments made in reference petition in respect of various kinds of losses suffered were totally false and non existing because it is not the case of the petitioners that they are forgoing those other losses.
57. Similarly it is also not disclosed what portion of which particular floor had remain unoccupied during the period when construction work of metro station was going on after the acquisition. How and on which basis this loss is assessed floor wise or portion wise is not disclosed and no breakup of the same is provided. No income tax or house tax return was filed to show the alleged losses suffered on this account. No rebate has been sought by the petitioner from NDMC in payment of house tax due to alleged non occupation of the building. Moreover the property in question was lease hold property and could not have been sold to any one by the petitioners so the question of non availability of buyers does not arise. Accordingly, the claim raised by the petitioners cannot be believed because in the petition, petitioner allegedly suffered losses on this count.
Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
M.L.Wadhera and others v. Union of India and others. -:: Page 27 of 30 ::-
58. The petitioners have claimed that due to the construction of the metro, the MNCs and other commercial and business houses have shifted to the adjoining satellite cities of Delhi but they have not produced any witness from any MNC or commercial and business house to substantiate his averments. They have also not cared to produce any documentary evidence to the same effect also. Their contentions appears to be a bald averment which is unsubstantiated and therefore, cannot be taken into consideration.
59. Mere fact that some of the averments made by PW2 have remained unrebutted due to non cross examination by itself is not sufficient to grant compensation as demanded and treat that unrebutted deposition as gospel truth. Petitioners should have been specific and must have given basis of such alleged losses with complete details but he has so failed.
60. Therefore, in such a situation, no damages for other heads, as claimed, can be allowed.
61. This issue is accordingly decided by holding that the petitioner is entitled to enhancement of compensation on account of land only and his other claims for compensation are declined.
ISSUE NUMBER 3 Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
M.L.Wadhera and others v. Union of India and others. -:: Page 28 of 30 ::-
62. Issue number 3 is the relief.
63. In view of above discussions, the reference is disposed off by holding that compensation awarded to the petitioners at Rs.57,960/- per square meter by the LAC was inadequate and unreasonable. The petitioners were required to be paid compensation at the rate of Rs. 81,429/- per square meter.
64. The petitioners are, therefore, entitled to enhancement of compensation to the tune of Rs. 23,469/- per square meter along with 30% solatium. They are also entitled to additional amount at the rate of 12% p.a. from the date of notification till the date of possession i.e. 28.03.2003 to 22.07.2003 as per provisions of section 23 (1-A) of the Act. The petitioners shall be entitled to the interest at the rate of 9% for first year from the date of taking of possession of land in question and 15% for subsequent years till the entire payment of compensation is made as per section 28 of the Act. The claims of the petitioners regarding the other different type of losses are rejected.
65. Needless to mention here that the amount of compensation to which the petitioners, as per their proportionate share, are entitled as per the award, shall be released to them subject to the outcome in the petition for apportionment under sections 30 and 31 of the Act.
66. Copy of this order be sent to LAC for information and Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
M.L.Wadhera and others v. Union of India and others. -:: Page 29 of 30 ::-
deposit of balance amount immediately to avoid further burden upon the Government exchequer.
67. The file be consigned to record room.
Announced in the open Court on (NIVEDITA ANIL SHARMA) this 27th day of January, 2012. ADJ-02, Wakf Tribunal, New Delhi.
Suit Number : 01/08.
Unique Case ID Number : 02403C0975762008.
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