Delhi High Court
Mahant Atma Ram Chela Mahant Sita Ram vs Union Of India on 4 September, 2001
Equivalent citations: 95(2002)DLT58, 2002(61)DRJ169
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Devinder Gupta, J.
1. This appeal field under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") is for further enhancement is amount of compensation payable to the appellant for a plot of land measuring 14 biswas comprised in Khasra No.71 situate at Yusuf Sarai, New Delhi.
2. Appellant's land was acquired for planned Development of Delhi through notification issued under Section 4(1) of the Act on 12.10.1983 for which declaration under Section 6 was made on 12.1.1984.
3. The Collector Land Acquisition offered compensation @ 1/- per sq. yard. Feeling dis-satisfied the appellant sought reference. The Reference Court assessed the market value @ Rs.75/- per sq. yard. Still feeling dis-satisfied the appellant preferred this appeal claiming compensation @ Rs.50,000/- per sq. yard.
4. The appellant had been in possession of the plot in question till 27.11.1975 when during emergency he was forcibly dispossessed there from. as the appellant had been dispossessed from the property otherwise than in due course of law he was left with no other option except to file S.No. 1190/78 on the Original Side of this Court claiming decree for possession and for recovery of damages. As the appellant's land had a prime location in Yusuf Sarai market. it appears that a via media was found out in the civil suit and accordingly a compromise was entered into under which the respondents agreed to acquire the land under the provisions of the Act and to pay compensation to the appellant in accordance with law. I.A. 2011/82 was filed in S.No.1190/78 Mahant Atma Ram vs. Union of India & Ors . under Order 23 Rule 3 CPC. In the bargain for settlement it was agreed that DDA will give a lease hold plot 60-B-7, Safdarjung Extension, Development Area, New Delhi measuring 225 sq. metre to the appellant at pre determined rate of Rs.418/- per sq. metre for which the appellant was to pay the price of the plot within three months from the date of allotment. The appellant was to withdraw the claim for possession, compensation and mesne profit and DDA also agreed to withdraw its claim for damages/eviction proceedings which were stated to be pending against the appellant before the Estate Officer of the DDA. The appellant agreed that he will have no objection to the notification being issued under the provisions of the Act is order to formally acquire to property and it was agreed that the respondents may take formal possession of the land forthwith. It was also agreed amongst the parties that the appellant will be entitled to compensation according to law for the aforementioned property. Ex. P.W. 3/8 is the copy of the order passed by the Court on the application filed under Order 23 Rule 3 CPC which reads as under :-
"This is an application under Order 23 Rule 3 read with Section 151 CPC, incorporating the compromise arrived at between the plaintiff and defendants No.1 to 4. The application is, however, signed by the counsel for defendant No.2 only, and none for the other defendants. Mr. Arun Mohan states that the settlement is in reality with defendant No.2, the principal party involved in this case. A separate statement of the counsel for the plaintiff and the counsel for defendant No.2 has been recorded. A decree in terms of this settlement is passed which will be operative between the plaintiff and the Delhi Development Authority, defendant No.2. As the plaintiff is not seeking any relief any longer against the other defendants, the suit qua them shall stand dismissed. Parties are left to bear their own costs.
This decree has been passed in terms of the amendment introduced in Order 23 Rule 3 CPC with effect from 1977."
5. Pursuant to the aforementioned order, notification under Section 4 of the Act was issued on 12.10.1983 notifying the intention of the Government to formally acquire the property and it is not in dispute that the appellant was also allotted a plot of land in Safdarjung Extension, Development Area in terms of the compromise.
6. There is no dispute as regards the location of the acquired plot that it was located on the main Mehrauli Road, now known as Arubindo Marg and just opposite to the South Zone, office of Municipal Corporation of Delhi. Ex.P.W.1/1 is the plan showing location of the acquired plot. Adjacent to the acquired plot is Hindustan Petrol Pump and opposite to the same in addition to the South Zone office of Municipal Corporation of Delhi another petrol pump, hotel and shops are located. The acquired land was a part of Yusuf Sarai Market and accordingly to the evidence led by the appellant it commanded best possible situation. The Collector, Land Acquisition on his visit inspected the plot and in his award recorded location thereof and reason which prevailed with him in not allowing full market value of the plot, observing that it was meant only for public purpose and had no market value. The Collector remarked:-
"The land was inspected by me is a part of the Main Mahrauli Road. At present some portion of the land has been included in the Road and a small portion has been developed as a puce path way besides the road as per revenue record the land is recorded as Geir Mumkin Piao in the ownership of Shamlet deh in the Jamabandi for the year 1908-9. In the Jamabandi for the year 1961-62 the land is recorded in the ownership of Shamlet deh and in possession of Rai Bahadur Madho Prasad s/o Shri Hardhan Singh for running a charitable Piao. On the material date, use of the land in question is recorded as Geir Mumkin Sarak. The entries of the revenue record shows that since the year 1908-9, the land is meant for public use and it is being used as such even now i.e. earlier it was used for a Piao and now a road has been constructed on the land. In the record of rights for the year 1880, I description of the land has been given as Piao Wala well with sweet water. It is also mentioned that this well is not being used for irrigation but it is being used by the residents of the village for drinking water and for the travellers. All these description of the land in question and its entry in the revenue record goes to show that the land under acquisition had been and is for a public purpose. The land which has such a long history since 1880 for the use of public, there is hardly any market value especially when a road of common use has been constructed over it."
7. The Collector even discarded the evidence adduced by the appellant before him in assessing market value since in opinion of the Collector the acquired land was entered in the Municipal Corporation's record as Piao and was thus meant only for public purpose.
8. Before the Reference Court the claimant/appellant led oral well as documentary evidence. P.W.1 Shri Sat Parkash Singh Chadha proved the site plan Ex. P.W.1/1 showing location of the plot. P.W.2 Shri Des Raj Arora, Superintendent, DDA (Commercial Land), Vikas Sadan, INA, New Delhi deposed on the basis of the official record maintained by DDA that three plots were sole by public auction on 9.2.1982 in Yusuf Sarai, namely, plot Nos. 12, 17 and 18. All measuring 225 sq. metres. In the public auction highest bid offered for said plots were Rs.80,00,000/-, Rs.82,00,000/- and Rs.86,10,000/- respectively. The appellant appeared as P.W.3 and stated the condition and location of the property as on the date of notification under Section 4 of the Act that the land was in his actual possession and he was making commercial use thereof. He was having business and office at the site. Proper electricity and water connections were available. He was praying house tax and in MCD record it was described as plot No.44. Not only that the plot actually was under commercial use by him, even in the Master Plan the land use had been described as commercial. He stated that the acquired land was located on the main Mehrauli Road (Arubindo Marg) in front of MCD office and adjacent thereto was a petrol pump, which is still in existence. Opposite to the land, there is Green Park Colony and on back side of the land, there was land on DDA on which on construction has been raised. Just close to the land there was and is a commercial centre of DDA, opposite to General Raj School. After tendering certified copies of registered lease deeds Ex. P.W.3/9 to Ex.P.W.3/13 the claimant/appellant closed his evidence.
9. No evidence was adduced by the respondent except tendering a certified copy of registered lease deed Ex.D-1. During course of arguments the Reference Court by its orders dated 29.8.98 got produced on record copy of the application filed under Order 23 Rule 3 CPC and the order passed thereon. The Reference Court thereafter proceeded to answer the reference by the impugned award. Evidence adduced by the appellant i.e. instances of the auction of three plots, auctioned on 9.2.82 and the certified copies of the perpetual lease deed, Ex.P.W.3/9 to Ex.P.W.3/13 were discarded on the ground that the title of the appellant over the acquired land was in dispute, which the appellant could get cleared only in the year 1993 as is evident from judgment Ex.P.W.3/31 delivered by Additional District Judge in Land Acquisition Case No. 58/93 which was a reference under Sections 30/31 of the Act. According to the Reference Court the land of which title was in dispute could never fetch price like a developed plot auctioned by DDA. Accordingly he proceeded to rely upon copy of sale deed Ex.D-1 relating to a plot of land located in Kotla Mabarakpur, which reflected a market value @ Rs.75/- per sq. yard and thus proceeded to answer the reference holding the claimant/appellant entitled to compensation at that rate. While answering the reference, the Reference Court also deprived the appellant of interest payable under Section 34 of the Act on the ground that the interest under Section 34 is payable only in those case where possession is taken by the Collector Land Acquisition in pursuance to the acquisition proceedings and also of the fact that the appellant had in the application filed under Order 23 Rule 3 CPC agreed not to claim any damages. Therefore, the appellant's claim for interest under Section 34 of the Act was rejected.
10. We have duly considered the submissions made at the bar and gone through the record. Learned counsel for the appellant contended that though on record evidence had been adduced to show market rate of smaller plots but in the instant case acquired plot of land being larger in size different criteria will have to be adopted since in a developed colony and in place like Delhi having commercial potential availability of larger plots is scarce. Obviously larger plots, if available, would fetch higher amount, for which purpose he referred to document Ex.P.W.3/13, which is a copy of perpetual lease executed between President of India and M/s. Indian Oil Corporation with respect to plot No.1 situate in close proximity to the acquired land at Yusuf Sarai Market for an area measuring 2438.10 sq. mts. Consideration reflected in the document is Rs.25,33,69,689/-. Following chart would reflect the trend of the price of various plots of land auctioned within Yusuf Sarai Community Centre and located adjacent to the acquired land:-
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Date of Plot Area Consideration Average rate Average rate
auction No. (in sq.mtrs.)(in Rupees) (in Rupees) (in Rupees)
sq.mts. sq.yds.
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9.2.82 12 225 84,00,000/- 37,333.33 31,226.76 9.2.82 17 225 82,00,000/- 36,444.44 30,483.27 9.2.82 18 225 86,10,000/- 38,2666.66 3,20,074.24 2.1.84 22 150 26,00,000/- 17,333.33 14,525.00 29.6.90 18 225 2,75,00,000/- 1,22,222.22 1,02,230.00 2.1.84 20 150 23,06,000/- 15,373.33 12,882.68 2.1.84 19 225 34,81,000/- 15,471.11 12,940.52 23.1.89 1 2438.10 25,33,69,689/- 1,03,920.95 86,891.25
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11. The first three instances have been proved by P.W.2 and the remaining five are evidenced by documents Ex.P.W.3/9 to Ex.P.W.3/13. Market trend would suggest that in the year 1982 lease hold rights in a commercial plot measuring 225 sq. metres in Yusuf Sarai in public auction fetched price between 82 lacs to 86 lacs whereas two years thereafter, namely, in the auction conducted on 2.1.84 plot No. 19, measuring 225 sq. metres, also being commercial plot, in the same locality could fetch only Rs.34,81,000/-. Commercial plots measuring 150 sq. metres were auctioned on 2.1.84 for Rs.23 lacs to 26 lacs. Plot which was transferred to Indian Oil Corporation on 23.1.89 was bigger in size measuring 2438.10 sq. metres and the consideration reflected in the document is more than 25 crores. On 29.6.80 plot No.18 measuring 225 sq. metres was reauctioned and fetched an amount of Rs.2,75,000/-. This would reflect the trend of market prices of lease hold plots between 1982 to 1984 suggesting that either there was slump or some other adverse situations due to which there has been sharp decline in the market values of plots. None of the parties has brought on record any circumstances or reason of such a sharp decline in the market value but it is a fact situation, as is reflected in the deeds that commercial plots in the same locality of same dimension were auctioned for an amount of more than 80 lacs in 1982 could in the auction held on 2.1.84 fetch only Rs.34,81,000/-.
12. Notification under Section 4 of the Act in the instant case was issued on 12.10.1983. Therefore,it would not be unreasonable to infer that the instances of the auctions, which took place on 9.2.82 may not be so relevant as compared to the instances for the auction which took place on 2.1.1984. It is now judicially recognised principle that transactions relating to sales of properties contiguous to the acquired property which took place not only before the date of preliminary notification issued under Sub-section (1) of Section 4 of the Act but also of a later date and quite close to the preliminary notification would also constitute a guiding factor in determining the market value of land as on the date of the preliminary notification. It depends upon the facts and circumstances of each case that how a transaction brought on record has to be dealt with. Post notification sales of some and similar land in the locality cannot altogether be ignored, in case the court comes to the conclusion that the post notification sale reflected true market trend, or to show upward downward trend in the market.
13. The Reference Court was not justified in altogether ignoring the instance brought on record on the ground that the title of the appellant was not clear. Title was disputed only in proceedings under the Land Acquisition Act, for which reference under Section 30 of the Act was sought and which was answered in favor of the appellant. That factor alone cannot be a ground to deprive a claimant of the fair amount of compensation payable, in accordance with the provisions of the Act. When a land in compulsorily acquired, what basically is required to be done for determining compensation is to arrive at the market value of land on the date of notification issued under Section 4 of the Act. The market value within the ambit of Section 23 of the Act would be the price at which the vendor and vendee would be willing to sell or purchase the land. The consideration in terms of price received for land in and around the locality under bona fide transaction on the date of notification issued under Section 4 of the Act or a few days before or after the issuance of notification under Section 4 of the Act generally shows the market value of the land in the vicinity, therefore, the market value of the acquired land has to be assessed in terms of those transactions. In Karan Singh vs. Union of India it was held that the sale transactions of land on or about the issue of notification under Section 4 of the Act is the best piece of evidence for determining the market value of the acquired land. Often evidence of instances of transaction of sale of land on or about the date of notification under section 4 or not available. In the absence of such evidence contemporaneous transactions in respect of lands having similar advantages and disadvantages would be a good piece of evidence for determining the market value of the acquired land.
14. Reliance placed by the Reference Court on certified copy Ex.D-1 produced by respondents was not justified. No doubt under Section 51-A of the Act a certified copy of a document registered under the Registration Act, may be accepted as evidence of the transaction recorded in such document but the value to be attached to such document depends upon the facts and circumstances of each case. Perusal of Ex.D-1 shows that it was a sale transaction inter se the members of the same 'family' Shri Vijay Bansal and Mahesh Kumar Bansal, sons of Jawala Prashad and Fatch Chand being the vendors transferred their right in favor of a family company, namely M/s. Jawala Prashad & Company Pvt. Ltd. By this deed plot of land No. 58 measuring 267 sq. yards situate at Arjun Nagar, Kotla Mubarakpur, New Delhi was transferred for a consideration of Rs.20,000/-. No reliance could be placed on this document in order to arrive at market value of the land in the vicinity since the sale deed on the face of it does not show that it was a bona fide sale transaction as on 12.11.1984 depicting correct market value of the land in the locality and more particularly when sale prima facie is by members of the same family in favor of a family company.
15. From the aforementioned table of different transactions it would be seen that the average price realised in public auctions of lease hold commercial plots was in the range of approximately Rs.30,000/- to Rs.32,000/- per sq. years as on the date of auction which took place on 9.2.1982. The average price reflected in the auction held about two years later were Rs.12,800/-to Rs.14,500 per sq. yard. The transaction evidenced by document Ex.P.W.3/13 and P.W.3/10 reflecting price of Rs.1,02,230/- and Rs.86,890/- sq. yard have altogether to be taken out of consideration since they are for a period of almost six years subsequent to the date of the preliminary notification. Only transaction as proved by P.W.2 and evidenced by documents Ex.P.W.3/9, P.W.3/11 and P.W.3/12 would be relevant basis from which we have to arrive at a conclusion as to the fair market rate as on the date of preliminary notification. Considering the location, potentiality of the land and the fact that it was located within a locality which already stood developed long ago and being a compact plot of land abutting main road in front and flanked by developed plots which required no further developed since it was already in commercial use by the plaintiff and adjacent land already been utilised by the respondent, we are of the view that Rs.12,500/- would be the fair market value as on the date of preliminary notification.
16. As regards claim for interest, the Reference Court was not justified in depriving the appellant of the same. It is not in dispute that the land had already been coupled unauthorisedly by the respondent. There is, however, no material on record to suggest about the extent of unauthorised possession of the respondents for which suit was filed. Perusal of Ex.P.w.3/8, copy of the order passed on 24.5.1982 by learned Single Judge of this Court, in the suit filed by the appellant against the respondents and the certified copy of the application under Order 23 Rule 3 CPC do suggest that the appellant in consideration for the settlement had agreed to withdraw his claim for damages, compensation and mesne profits. It was also agreed that the respondents may formally take possession of the land forthwith. It would thus imply that pursuant to the compromise dated 24.5.1982 the respondents agreed to take possession of the property. The claim for compensation and damages for the period till 24.5.1982 stood waived. Considered for waiver being allotment of a leasehold plot to the appellant by the respondents at pre-determined rate. Thus for all intents and purposes the date of the appellant's dispossession will have to be taken as 24.5.1982 and not any date prior thereto. The Reference Court was also not justified that interest is payable only from the date of the Collector taking possession. Possession was taken under agreement between the parties, pursuant to the compromise. Section 34 enjoins upon the Collector, Land Acquisition to pay interest on the price of acquired land from the date of possession. Date of possession may be pursuant to the award made by the Collector or may be prior thereto. Payment of interest under Section 34 of the Act is not dependent on any claim to be made by the person, whose land has been acquired. Once the provisions of Section 34 are satisfied it is obligatory for the Collector to pay interest. Supreme Court in Shree Vijay Cotton and Oil Mills Ltd. vs. State of Gujarat held that if the Collector fails to make payment of interest under Section 34 of the Act, the same can be claimed from the Court, in proceedings under Section 18 of the Act or even from the Appellate Court. It was further held that there is inherent evidence in the wordings of Sections 28 and 34 of the Act to show that the framers of the Act intended to assure payment of interest to the person whose land was acquired and it was not the intention to subject the said payment to procedural hazards. Interest to be paid under Section 34 and also under Section 28 of the Act is of a different character than the amount of compensation payable under Section 23(1) of the Act. The amount of compensation under Section 23(1) of the Act is an award under Section 26 of the Act and is subject to the rules of procedure and limitation whereas the interest payable under the Act can be claimed at any stage of the proceedings under the Act. Same principles were reiterated in a subsequent decision in Manipur Tea Co. Pvt. Ltd. vs. Collector of Hailakandi .
17. The claimant/appellant never gave up his right to claim due compensation under the provisions of the Act in accordance with law. He gave up only the claim for damages for use and occupation up to the date of entering into the compromise. Therefore, in our view the Reference Court was not at all justified in depriving the appellant of the interest.
18. The Reference Court was also not justified in allowing additional amount in terms of Section 23(1A) of the Act @ 12% p.a. The additional amount payable under Section 23(1A) is payable on the market value determined for the period commencing on and from the date of publication of the notification under sub-section 1 of Section 4 of the Act to the date of award of the Collector or to the date of taking possession of the land, whichever is earlier. Since possession was and will be demand to have been stood taken over prior to the issuance of notification under Sub-section (1) of Section 4 of the Act, there was no occasion to have ordered payment of any additional amount under Section 23(1A) of the Act. The claimant otherwise is entitled to interest right from the date of dispossession till payment. As such the award of the reference court to the extent of allowing additional amount under Section 23(1-A) of the Act is liable to be set aside and is hereby set aside.
19. Consequently the appeal is allowed with proportionate costs. The impugned award is modified holding the claimant/appellant entitled to compensation @ Rs.12,500/- per sq. yard. Over and above the amount of compensation the claimant/appellant will be paid solarium @ 30% on the enhanced amount of compensation and interest @ 9% p.a. for a period of one year from 24.5.1982 and thereafter @ 15% p.a. till the date of payment of the amount of compensation.
20. In case interest is held payable on solarium by the Supreme Court in a pending reference made to the larger bench by order dated 10.8.1998 in Kapur Chand Jain (Dead) and others vs. State of Government of H.P. and others , the claimants will also be paid interest accordingly.