Dlf United Limited And Ors. vs Union Of India (Uoi) And Ors.
2000 Latest Caselaw 1126 Del

JUDGMENT

Devinder Gupta, J.

1. These appeals arise out of a common judgment of Additional District Judge, Delhi in Land Acquisition Cases Nos. 1.9 and 20 of 1966, answering the references and thereby determining the amount of compensation payable for acquisition of land situate within the revenue estate of Kharera, Delhi.

2. Through notification issued under Section 4 of Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') on 21.11.1962, a plot of land measuring 9 bighas 5 biswas comprised in Khasra Nos. 279 (3-0), 621/280 (2-5), 622/280 (1-19), 619/283/1 (0-9), 620/283/1 (0-8)and 284/1 (1-4) situate within the revenue estate of Kharera, Delhi was notified for being acquired for public purpose, namely the Planned Development of Delhi. This plot of land was held by D.L.F. United Limited and was reserved by it for the purposes of school in its approved colony, namely Hauz Khas enclave. Preliminary notification was followed by declaration under Section 6, which was made on 15.2.1963. Compensation was claimed by DLF @ Rs. 40/- per sq. yd. for its rights in the land and its was claimed that this plot of land had already been leased out to a Charitable Trust, i.e. Lal Chand Public Charitable Trust, who also claimed compensation for acquisition of its rights in the land,

3. The Collector Land Acquistion on 4.5.1963 made his award No. 1575 offering compensation @ Rs. 4,000/- per bigha. As regards apportionment of compensation, the Collector Land Acquisition held that the land was shown in revenue records to be owned by DLF and was part of its Hauz Khas Enclave and in the lay-out plan had been shown as site reserved for school. DLF had already sold their rights in the area left for common purposes to various plot holders. The area reserved for school had been leased out in the name of Lal Chand Public Charitable Trust, which in his view appeared to be part of DLF United Limited. Accordingly, he held that compensation should go to the Education Department rather than to DLF or to Lal Chand Public Charitable Trust. Feeling aggrieved by the award of the Collector Land Acquisition, reference was sought both by DLF United Limited and Lal Chand Public Charitable Trust for determination of the amount of compensation and for apportionment.

4. The Reference Court by the impugned judgment assessed the market value of land Rs. 7,500/- per bigha as on the date of notification under Section 4 of the act and held DLF United Limited and Lal Chand Public Charitable Trust entitled to compensation in the ratio of 1999. Against this judgment of the Reference Court, three appeals have been filed. RFA Nos. 367/79 and 368/79 are by DLF United Limited; and Lal Chand Public Charitable Trust respectively for further enhancement in the amount of compensation and RFA No. 369/79 by Union of India seeking reduction of the amount of compensation. At this stage, it may be mentioned that there is no dispute inter-se DLF United Limited and Lal Chand Public Charitable Trust regarding apportionment that DLF United Limited is entitled to 1 % of the amount of compensation whereas Lal Chand Public Charitable Trust is entitled to the remaining 99% of the amount of compensation.

5. We have heard learned counsel for the parties. On behalf of Union of India, it was urged that neither DLF not the Trust are entitled to compensation. This submission has no force and cannot be accepted. Neither the Education Department nor Residents Welfare Association have come forward in claiming compensation for the acquired land. In the absence of claim by anybody else, we are of the opinion that it was rightly held by the Reference Court that no other person other than DLF and Trust was entitled to the amount of compensation.

6. The Reference Court in the impugned judgment critically analysed the evidence led by the parties as regards instances pertaining to prices of the land in the vicinity, the potential value of the land in question being a site fit for residential buildings and came to the conclusion that the condition attached to the land in disputed that the same could be used only for construction of a school building affected its market value to a great extent and for that reason, it commanded a much lesser market value than the one it would have commanded had there been no such restriction attached to its user that only school building could be constructed over there. It was urged on behalf of the claimants that even though there was a restriction imposed in the lay-out plan, it did not affect its market value. On acquisition the owner is entitled to full market value. As such, we will have to analyse the sale instances brought to our notice during the course of the arguments by both sides. Before doing so, we will note down the exact location of the acquired plot.

7. The Collector in his award observed that the land under acquisition is situate on one of the internal roads of Hauz Khas Enclave. It was still undeveloped and no plots had been marked on he spot as per the approved lay-out plan of Hauz Khas Enclave area. This plot could not be divided into plots as it was reserved only for school. Hauz Khas Enclave had been inhibited for the last several years, but no school had been started by DLF United Limited. The land was still undeveloped.

8. Learned counsel for the appellant with the help of plan (Exhibit R2) tried to lay emphasis of equal advantages available to the land situate within the revenue estates of Kharera and Kalu Sarai. It was contended that the revenue estates of Kharera and Kalu Sarai were adjacent to each other. Hauz Khas Enclave had been carved out of the land situate within the revenue estate of Kharera. Therefore, it would not be unreasonable to place reliance upon the sale instances of Kalu Sarai also. He referred to some of the awards of the Reference Court determining the amount of compensation payable for acquisition of the property situate within the revenue estates of kharera and kalu Sarai and also sales certificates with respect to plots of land put to auction by the Rehabilitation Department under the provisions of Disabled Persons. (Compensation and Rehabilitation ) Act, 1954. Reliance was also placed upon four instances of sale of plots by DLF United Limited from out of the developed colony of Hauz khas Enclave.

9. Exhibit Al is copy of award of Additional District Judge passed on 3.6.1964 in Land Acquisition Case No. 569 of 1962 titled as H.C. Nagar v. Union of India'. Land measuring 4 bighas 3 biswas situate at Village Kharera was acquired by notification issued under Section 4 of the Act on 12.6.1962. Market value was assessed @ Rs.

17,000/- per bigha. Exhibit A2 is copy of another award of Additional District Judge passed on 14.8.1967. in Land Acquisition Case No. 568 of 1962 titled as 'Masonic Friends Co-operative House Building Society Limited, Delhi v. Union of India' Compensation for 21 bighas 14 biswas of land situate at Village Kharena acquired through notification issued under Section 4 of the Act on 12.6.1961 was assessed at Rs. 1.7,000/-per bigha. Exhibit A3 is copy of another award delivered by additional District Judge, Delhi on 9.5.1963 in Land Acquisition Case No. 611 of 1962 titled as 'Mahesh Dass etc. v. Union of India'. For 4 bighas 6 biswas of land situate within the revenue estate of Kalu Sarai acquired through notification issued under Section 4 of the Act on 18.8.1960, market value was assessed at Rs. 17,000/- per bigha. Exhibit A4 is copy of sale certificate dated 24.2.1960. 11 biswas of land situate in Kalu Sarai was put to auction on 27.2.1959. Highest bid of Rs. 27,000/- was accepted by adjusting compensation claim of one M.R. Sachdeva. Exhibit A5 is copy of another sale certificate for 2 bighas 1 biswas of land situate at kalu Sarai, which was put to auction on 27.2.1959 and highest bid of Rs. 50,000/- was accepted. The rates reflected in Exhibits A4 and A5 are Rs. 49,000/- per bigha and Rs. 23,800/- per bigha. Exhibit A6 is copy of sale deed dated 27.9.1962 by which DLF Housing and Construction Private Limited sold a plot measuring 444 sq. yds. in residential colony of Hauz Khas Enclave in favour of Mrs. Meera Mukherjee for a total consideration of Rs. 18,981/-, i.e. @ Rs. 42.75 p. per sq. yd. Similarly Exhibit A7 is copy of another sale deed dated 8.6.1961 by which DLF Housing and Construction Private Limited transferred one plot in residential colony of Hauz Khas Enclave measuring 300 sq. yds. for a consideration of Rs. 15,675/- which reflects a rate of Rs. 52.25 per sq. yd. Exhibit A8 is copy of sale deed dated 24.3.1962 by which DLF Housing and Construction Private Limited sold a plot of land measuring 319 sq.yds in residential colony of Hauz Khas Enclave in favour of Prem Nath Kaul for a consideration of Rs. 14,849.45 p. i.e. @ Rs. 46.55p. per sq. yd. Exhibit A9 is copy of sale deed dated 27.11.1963 by which DLF Housing and Construction Private Limited sold in favour of M.G. Mathur a plot of land measuring 500 sq. yds. situate in Hauz, Khas Enclave for Rs. 21,375/- i.e. @ Rs. 42, 75p. per. sq. yd.

10. Exhibit R1 is copy of award of Additional District Judge, Delhi in Land Acquistion Case No. 210 of 1966 decided on 3.10.1967. For 2 bighas of land situate at Kalu Sarai acquired through notification dated 25.8.1962, compensation was assessed @ Rs. 7,500/- per bigha. Exhibit R3 is copy of award of Additional District Judge, Delhi dated 13.2.1967 in Land Acquisition Case No. 570 of 1962.13 bighas 9 biswas of land acquired through notification dated 12.6.1961 was assessed @ Rs. 7,000/- per bighas. Exhibit R4 is copy of award of Additional District Judge passed on 29.3.1968 in Land Acquisition Case No. 25 of 1964. For 18 biswas of land situate in kalu Sarai, acquired through notification dated 25.8.1962, compensation was assessed at Rs. 10.70 per sq. yd.

11. There is no manner of doubt and as is reflected from the oral evidence adduced by the claimants, namely Amrit Lal (AW1), S.S. Mann (AW2), Prem Nath Kaul (AW3), Harbans Lal (AW4), Jagdish Narain (AW5), R.P. Burman (AW6) and R.K. Jain (AW7), and it has also not been disputed on behalf of Union of India that DLF United Limited had already developed considerable land of Village Kharera as Hauz Khas Enclave for which lay-out plan was also approved. 62.29% of the area was shown under various plots, 24.31% under roads, 5.59% under lawns and remaining 7.81% area was reserved for school. Since plot in question was reserved for school, it could not be utilised by DLF United Limited for any other purpose. For setting up of school, it was leased out of Lal Chand Public Charitable Trust. Before school could be constructed, it was acquired for public purpose. Had the area not been reserved for school, it cannot be denied that the same could have utilised by DLF for the purpose of residential colony.

12. It is a basic principle in determining the amount of compensation that the land value should be fixed not only by reference to the use to which it was being put at the time at which its value had to be determined, but also to the uses to which it is reasonably capable of being put in future. All its existing advantages and its potential possibility when laid out in its most advantageous manner should be taken into account. The Court is not precluded to take into account any special circumstances apart from the methods of valuation to be adopted in order to arrive, as nearly as may be, at an estimated of the market value. The estimated market value depends largely on evaluation of many imponderables and may involve, to some extent, a matter of guess work. The mere fact that DLF United Limited did not utilize the land, as it was reserved for school, will not debar either the DLF or the Trust from claiming compensation consideration the potential value of the land.

13. As on the date of preliminary notification, the land was located in a developed colony with a rider attached to it that it could be utilised only for the purpose school. It is a matter of common knowledge in Delhi that even at the stage when u_ land was acquired, a plot of land even for construction of school could not be had at a lesser cost than the one for which a similar plot could be had for residential purposes. Both parties have not led any evidence as regards the market value of similarly situate plots, which could be utilised only for construction of schools. However, in assessing the market value, the Reference Court was influenced by the fact that as the land was reserved for school, it could not fetch the same market value as a piece of land which could be utilised for residential purposes. This approach was not the correct approach. While determining compensation, the Court was required to consider suitability of the acquired land for varied purposes including putting up buildings for residential, commercial or industrial purposes. What was required to be shown by the claimants was that the land was possessed of potential value largely as a site for building for residential or commercial or industrial purposes. Setting up of school, if not residential in our opinion would at least be commercial purpose. Market rate in any case would be equal or higher than the residential plots and not less than that.

14. Notification under Section 4 in the instant case was issued on 21.11.1962 and as would be reflected from the sale deed (Exhibits A6 to A8) that developed residential plots immediately before the said date were sold by DLF Housing and Construction Private Limited in the same colony at the rate of more than Rs. 40/- per sq.yd. Two of such sale deeds are of the plots adjacent to the plot in question. Being sale transaction of developed plots of land would at least indicate market value immediately prior to issuance of notification under Section 4 that plots could be had in the range of Rs. 42.75p. per sq. yd. to Rs. 52.25p per sq. yd. In case the acquired land is considered to be having potentiality of being used for building purposes either residential or commercial in the near future, the question would be that how much of land out of the acquired land would become available to be made into plots similar to those in the developed lay-out colony. The colony already had the facility of roads and other infrastructures. The only draw-back was that this plot could not be sub-divided and had not to be sold as such. But there was no prohibition in the DLF to sell the land to anybody at market rate for purposes of running a school. Had the plot not been reserved for school purposes, it would have been possible for DLF to have carved out more plots out of the land in question. For doing that it would have been necessary for it to leave certain area for common purposes. The entire area could not be divided into plots. In order to arrive at fair market value hypothical plotting can be done considering the same to have potential of residential building sites. For that it would be reasonable to say that at least there forth of area of plot could be utilised for carving out of plots and the remaining one fourth left out for common purposes, other infrastructure being available in developed colony.

15. We have sale instances ranging from Rs. 42.75p. per sq. yd. to Rs. 52.75p. per sq. yd. in the same vicinity immediately prior to issuance of preliminary notification under Section 4 of the Act. It would not be unreasonable for us to deduct one fourth for common areas. Taking the fair market value of developed residential plots at Rs. 42/-per sq. yd. which was the minimum rate for developed plots, as on the date of notification we are of view that Rs. 32.50 p. per sq. yd. would be the fair market value of the land as on the date of notification.

16. Consequently, we allow RFA Nos. 367/79 and 368/79 with proportionate costs. The claimants-DLF United Limited and Lal Chand Public Charitable Trust are held entitled to compensation @ Rs 32.50p. per sq. yd. in the ratio of 1:99 as was held by the Reference Court. Over and above the amount of compensation, the claimants will be paid solatium @ 15% on the enhanced amount of compensation and interest @ 6% p.a. from the date of Collector taking possession till payment on the enhanced amount of compensation. RFA No. 369/79 is dismissed.