Delhi High Court
Major General Kapil Mehra And Ors. vs Union Of India And Anr. on 24 December, 2010
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LA.APP. 149/2007
Reserved on : 26.11.2010
Pronounced on: 24.12.2010
IN THE MATTER OF :
MAJOR GENERAL KAPIL MEHRA AND ORS. ..... Appellants
Through: Appellant No.1 in person.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr. Sanjay Poddar, Advocate with
Mr. Ramesh Ray, Advocate for respondent
No.1/Union of India.
Mr. Ashwani Kumar, Advocate with Mr. R.K.
Sharma, Advocate for respondent No.2/DDA.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
1. Whether Reporters of Local papers may Yes
be allowed to see the Judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
HIMA KOHLI, J.
1. The appellants are aggrieved by the judgment dated 24.02.2007
passed by the learned Additional District Judge, on a reference petition
under Section 18 of the Land Acquisition Act, 1894, holding inter alia that
they were not entitled to any enhancement in compensation, as fixed by the
LAC, of the acquired land bearing Khasra No.1300/1 min. (697) measuring
12 bighas situated in the revenue estate of village Mehrauli, New Delhi and
further, that they were not entitled to compensation for wells and trees; or
to an additional amount under Section 23(1)(A) from 25.03.1983 till
18.09.1998 or to interest under Section 34 of the Land Acquisition Act, 1894
(hereinafter referred to as `the Act‟). However, as per the supplementary
award, the appellants were held entitled to interest under Section 17(3)(A)
of the Act for the period from 19.02.1997 till the date of payment and to
compensation for trees, if any.
2. As the instant case has a chequered history, the relevant facts
need to be narrated before dealing with the respective submissions made by
the parties. The appellants were the owners of a parcel of land measuring
12 bighas (i.e. 12096 sq. yards) situated in Khasra No.1300/1 min.(old)
697(new) in Vasant Kunj, Mehrauli, New Delhi (hereinafter referred to as
"the said land"). On 13.11.1959, the said land was notified for acquisition,
along with the surrounding land under the Act. On 7.12.1966, a declaration
was issued under Section 6 of the Act. On 25.03.1983, the aforesaid land
was acquired under Award bearing No.83/82-83 and the LAC took
possession thereof and handed over the same to the DDA. The appellants
challenged the said acquisition proceedings and the award, by filing a writ
petition before the High Court, registered as Civil Writ Petition
No.1134/1992. The said writ petition was allowed by a Division Bench of
this Court vide judgment dated 30.01.1996 and the acquisition proceedings
in respect of the said land were quashed. The respondents were directed to
restore possession of the land to the appellants within 90 days with further
directions that if, for any reason, it was not possible to restore the
possession, then the appellants would be entitled to alternate land of equal
area.
3. The respondent/DDA challenged the aforesaid decision of the
Division Bench dated 30.01.1996 by preferring a Special Leave Petition in
the Supreme Court in November 1996. The said Special Leave Petition was
dismissed by the Supreme Court vide order dated 18.11.1996 and as a
result, the decision of the Division Bench attained finality. However, as the
respondent/DDA did not return the land to the appellants, the latter initiated
contempt proceedings by filing CCP No.461/1996 in this Court on
16.12.1996, wherein the Commissioner (Land Management), DDA and the
Vice Chairman, DDA were impleaded as respondents. On 19.02.1997, a
fresh notification was issued by the Land and Building Department, Govt. of
NCT of Delhi under Sections 4 and 17 of the Act, proposing to acquire the
land of the appellants for the development of Vasant Kunj under the planned
development of Delhi.
4. Simultaneously, on 26.2.1997, the Director (Land Management),
DDA filed an affidavit in the contempt proceedings stating inter alia that the
land in question was utilized in respect of a Housing Scheme known as
Vasant Kunj Residential Scheme, but in view of the interim order passed by
the Division Bench in Civil Writ Petition No.1134/1992, the land was
maintained as a green area. It was further stated that in the composite
plan, in respect of Vasant Kunj Residential Scheme, the land in question was
earmarked for a police station and a higher secondary school and that it was
not feasible for the DDA to return possession of the land to the appellants as
the same was part of a huge Residential Scheme and further, that no
alternate plot in a similarly situated area was available for allotment to the
appellants. It was lastly submitted that the appellants would be paid market
value of the land as obtaining on 19.02.1997, together with such other
amount as provided for under the Act. This was the triggering point for the
second round of litigation in respect of the subject land.
5. Award No.2/98-99 dated 18.09.1998 came to be announced by
the Land Acquisition Collector (LAC) in respect of the said land, whereunder
the market value of the land was assessed according to the date of
notification under Section 4 of the Act, i.e., 19.02.1997. As against the
claim of the appellants for compensation @ `25,000/- per sq. yard, apart
from solatium and interest, treating the land as agricultural land, the LAC
applied the indicative price for agricultural land acquired by the Government
as `10 lacs per acre to the appellants‟ lands, discounted @ 11.5% per
annum compounded rate of interest and awarded compensation @
`2,05,642.07 paise per bigha (i.e., `205/- per sq. yards). For taking such a
decision, the LAC took guidance from a notification issued by the Land and
Building Department dated 25.07.1997, which provided that w.e.f.
01.04.1997, the indicative price of agricultural land acquired by the
Government would apply to the land notified under Section 4 of the Act
before 01.04.1997. He also observed that the appellants had not given any
documentary evidence in support of their claim. In addition to the above,
the LAC held that the appellants were entitled to 30% solatium and other
benefits under the Act. The claim for compensation for the well and the
structure was, however, turned down by the LAC and compensation in
respect of trees on the land was directed to be paid later, by way of a
supplementary award. The appellants were held entitled to additional
interest @ 12% per annum on the market value of the land, i.e., `26,400/-
per bigha and to solatium @ 30% on the market value of the land as per
Section 23(2b) of the Act. In conclusion, the appellants were held entitled
to a total sum of `37,12,180.05 paise under the Award.
6. Aggrieved by the aforesaid Award, the appellants filed a
reference petition under Section 18 of the Act before the Additional District
Judge on 07.10.1998, which came to be decided by the impugned judgment
dated 24.02.2007. On the basis of the pleadings of the parties, the learned
ADJ framed the following seven issues on 2.11.1999 :-
1. What was the market value of the land, trees, in dispute at
the time of Section 4 Notification date?
2. To what enhancement in compensation, the petitioners are
entitled?
3. Whether there existed any well on the land in dispute, if so
what was its market value?
4. Whether Collector has not complied with the provisions of
Section 17(3)(A) of the Land Acquisition Act, if so whether
the petitioners are entitled to interest from 19.02.1997 to
date of payment?
5. Whether the petitioners are entitled to 12% additional
amount u/S 23 (1)(A) of I.A. Act from 25.3.83 to 18.9.98 ?
6. At what rate and on what amount the petitioners are
entitled to interest u/S 34 of the I.A. Act?
7. Relief.
7. In support of their case, the appellants filed certified copies of
the proceedings of WP(C)No.1134/1992 and the contempt petition, bearing
CCP No.461/1996 and the orders passed thereon by the High Court, as
mentioned above. They also filed certified copies of four perpetual lease
deeds of residential plots in Vasant Kunj executed during the period,
September 1995 to December 1996, between DDA and private parties,
tabulated as below :
Exh. Sale Date Plot No. Size Sale Price Rate
(sq.mtr) (`) (`/sq.yd)
A-7 22.09.95 59C 218.5 75,05,000 28,719
A-8 02.02.96 5C 220.0 96,55,000 36,695
A-9 02.02.96 8C 231.0 1,01,61,000 36,779
A-10 10.12.96 13C 242.0 1,37,60,000 47,542
8. On the other hand, the respondent/Union of India placed on
record, true copies of Khasra Girdawaries of the subject land, for the years
1977-78 to 1980-81, 1986-87 to 1989-90, 1990-94 and 1994-98 (Ex.R-1 to
R-4) and a copy of the letter dated 28.07.1997, issued by the Land and
Building Department, Govt. of NCT of Delhi, fixing indicative price of
agricultural land situated in river bed between the forward bunds (Ex.R-5).
The sole witness examined by the respondent was Shri S.C. Chandana,
Executive Engineer, SWD-IV, DDA(RW-1), who produced records pertaining
to cost of development of residential plots in Sector C, Pocket 5, Vasant
Kunj, New Delhi, including a layout plan indicating the plots of land
mentioned in para 7 above, (Ex.DR-1/A).
9. After hearing both sides, the learned ADJ concluded that the
rates of the specific pieces of land sold through public auction could not form
the basis for determining the fair market value of the subject land and that
while determining the prospective use of the land, its future potential and
development could not be the only basis to determine the market value of
the acquired land. Thus, while holding that auction of a developed plot by a
public authority was not a proper guide for determining the fair market value
of the acquired land, the lease deeds produced by the appellants were
discarded. The learned ADJ then referred to a decision of the High Court in
a case entitled Nand Kishore vs. UOI reported as 73(1998) DLT 108,
where the issue of enhancement in compensation of the land situated in
village Mehrauli was decided. In the aforesaid case, the land in question
was acquired vide notification dated 21.11.1978 issued under Section 4 of
the Act and the High Court fixed the market value of the expropriated land
@ `30,000/- per bigha. In another case, LAC No.484/1993, entitled V.K.
Goel vs. UOI & Anr., the learned ADJ assessed the market value of the land
situated in village Mehrauli, acquired vide notification under Section 4 of the
Act dated 11.4.1988, at `44,014/-. Taking into consideration the indicative
price for agricultural land w.e.f. 01.04.1997, as taken note of by the LAC in
the Award, the learned ADJ observed that if escalation in price of the land on
the amount of `30,000/- per bigha is calculated @ 12% p.a. from
21.11.1978 (the date of notification under Section 4 of the Act in the case of
Nand Kishore (supra)) to 19.2.1997 (the date of notification under Section 4
of the Act in the present case), it would have come to `1,02,000/-
(approximate) and if 12% p.a. is calculated on the amount of `44,014/-
from 11.4.1988 (the date of Section 4 notification in the case of LAC
No.484/1993) to 19.12.1997, it would have been `46,771/-. He, therefore,
opined that the market value of the acquired land, based on the calculations
in the aforesaid two cases, on 19.2.1997 would have been `90,785/- per
bigha, but having regard to the fact that the LAC had already awarded
`2,05,642.07 paise per bigha for the acquired land as on 19.02.1997, which
was much higher than the compensation calculated by him at `90,785/- per
bigha, the claim of the appellants for enhancement in compensation was
turned down. Aggrieved by the aforesaid decision, the appellants have
preferred the present appeal.
10. In the present appeal, the appellants have claimed market value
of the land @ `1,04,702/- per sq. yard; solatium @ 30% on the market
value; additional amount @ 12% on the market value for the period with
effect from the date of issuance of Section 4 Notification, i.e., from
19.02.1997 till the date of Award, i.e., till 18.09.1998; interest @ 9% under
Section 34 of the Act with effect from 19.02.1997, the date of issuance of
Section 4 Notification to 18.02.1998, i.e., one year from the date of issuance
of Section 4 Notification, and @ 15% from 19.02.1998 onwards till the date
of payment. Interest on the excess amount under Section 28 of the Act has
been claimed @ 9% from 19.02.1997 to 18.02.1998 and @ 15% from
19.02.1998 onwards till the date of payment. Appellants have also claimed
damages on the market value of the plot @ 7% p.a. from 25.3.1983 to
24.3.1984 and @ 13% p.a. from 25.3.1984 to 19.2.1997, along with interest
on damages @ 6% p.a. from 19.2.1997 till the date of payment.
11. It may be mentioned at the outset that part of issue No.1,
pertaining to the market value of the trees, and issue No.3, pertaining to
existence of any well on the land, have not been pressed by the appellants,
and hence, findings returned in that regard by the learned ADJ need not
detain this Court. Similarly, arguments were not addressed by the
appellants on the findings returned under issue No.4, pertaining to
entitlement of interest from 19.02.1997, under Section 17(3)(A) of the Act
and hence, the findings returned by the learned ADJ in that regard need no
discussion. Apart from the findings returned in the impugned judgment with
regard to the market value of the land at the time of issuance of Section 4
notification, the appellants have challenged the findings returned with
respect to issues No.5 & 6. Issue No.5 was framed with regard to
entitlement of the appellants, if any, to 12% additional amount under
Section 23(1)(A) of the Act from 25.03.1983 to 18.09.1998 and was decided
against them by holding that they were not entitled to the amount from the
date of dispossession till the date of issuance of the second notification
under Section 4 of the Act, i.e., from 25.03.1983 to 19.02.1997. The
appellants have stated that in view of the judgment of the Supreme Court in
the case of R.L. Jain vs. DDA & Ors., AIR 2004 SC 1904, which held that
where possession is taken before issuance of notification under Section 4 of
the Act, interest cannot be awarded for period anterior to publication of
notification under Section 4 of the Act, however the appellants would be
entitled to seek an additional amount under Section 23(1)(A) of the Act
w.e.f. 19.2.1997 to 18.9.1998, and damages for the period w.e.f. 25.3.1983
to 18.2.1997, damages for use of the land @ 7% for the first year and
thereafter, @ 13 % on the market value of the plot along with interest on
damages @ 6 % p.a. from the date of Section 4 notification till date of
payment. Issue No.6 was framed with regard to the rate of interest and the
amount, if any, to which the appellants were entitled under Section 34 of the
Act, which was also decided against them.
12. Appellant No.1, who appeared in person, and addressed
arguments on behalf of all the appellants, raised the following grounds to
assail the impugned judgment :
(i) The said land should have been returned to the appellants in
compliance with the judgment of the High Court dated
30.01.1996.
(ii) The said land was wrongly graded as agricultural land and
hence, compensation was not assessed on the basis of its true
market value.
(iii) The evidence tendered by the respondents in support of the
prevailing market value of the land was irrelevant, as it referred
to sale of agricultural lands, whereasthe plot of land in question,
situated in village Mehrauli, in which the residential colony
Vasant Kunj has developed, was urban and residential in nature.
(iv) The plot in question was fully developed and residential in nature
and had all the civic amenities provided by MCD at the time of
issuance of notification under Section 4 of the Act in February,
1997 and hence it was required to be assessed for compensation
at urban rates and not at rural rates.
(v) Certified copies of the four perpetual lease deeds (Ex.A-7 to
Ex.A-10), placed on the record by the appellants to prove the
prevailing market value of the land in Vasant Kunj at the time of
issuance of the notification under Section 4 of the Act, were
completely overlooked.
(vi) No amount whatsoever has been granted to the appellants
towards damages on the market value of the subject plot, w.e.f.
25.3.1983, the date when the first notification under Section 4 of
the Act was issued, till 19.2.1997, the date of issuance of the
second notification, in terms of the judgment of the Supreme
Court in the case of R.L. Jain vs. DDA (AIR 2004 SC 1904).
13. The appellant No.1 stated that for determination of the market
value of the acquired plot of land, they had filed copies of four perpetual
lease deeds which were executed during the period, September 1995 to
December 1996, well near about the time when the Section 4 Notification
dated 19.2.1997 was issued. To urge that the said lease deeds ought to
have formed the basis for ascertaining the true market value of the land on
the date of the notification, he referred to the decisions in the cases of
Jawajee Nagnatham vs. Revenue Divisional Officer, Adilabad, A.P. and Ors,
(1994) 4 SCC 595 and U.P. Jal Nigam, Lucknow (Through its Chairman) &
Anr. vs. Kalra Properties (P) Ltd., Lucknow, (1996) 3 SCC 124 (Para 5).
He stated that a perusal of the aforesaid lease deeds reflects a consistent
escalation in the price of land in Vasant Kunj, at a flat rate of 52% per
annum, and considering the fact that they satisfied all the seven parameters
laid down by the Supreme Court for assessing market value of acquired
land, which include proximity of location, proximity of time, possession of
similar advantages, bona fide transaction, etc., the learned ADJ was wrong
to overlook these factors while arriving at the fair market value of the
acquired land. To support his submissions, reference was made to the
following judgments :
i. Shri Rani M. Vijayalakshmamma Rao Bahadur vs. Collector
of Madras, (1961) 1 MLJ SC 45 (para 2)
ii. The State of Punjab vs. Inder Singh, 1969 (LXXI) PLR
1034 (para 6)
iii. Jogendra Nath Chatterjee & Ors. vs. State of West Bengal,
AIR 1971 Calcutta 458 (V 58 C 103) (Head Note „C‟)
(para20)
iv. Land Acquisition Collector, Punjab State Electricity Board,
Patiala vs. Aditya Kumar & Ors., 1984 (LXXXVI) PLR
540 (para 1)
v. Rameshwar Solanki vs. UOI, AIR 1995 Delhi 358 (both
on proximity of location/exact market value of the land)
14. The appellants stated that as compared to their land which was
freehold in nature and would have fetched a far better price in the open
market, the terms and conditions laid down in the perpetual lease deeds are
far more stringent in nature and have a restricting effect on their market
price. Reliance was placed on a decision of the Division Bench of this Court
in the cases of Jas Rath vs. UOI, reported as 95 (2002) DLT 605 (DB)
(para 20) and a decision of the Supreme Court in the case of UOI, through
Secretary, Ministry of Home Affairs, GOI, New Delhi & Ors. vs. A. Ajit Singh
reported as (1997) 6 SCC 50, to submit that the price relationship between
freehold property and leasehold property is 2:1 for residential plots.
15. The layout plan of Vasant Kunj drawn out in March 1987,
produced by RW-1 as Ex.DR1/A, was also relied upon by the appellant No.1
to submit that the same clearly shows that the acquired land had been
earmarked for a higher secondary school/police station. He contended that
if in the year 1987 itself, the land was shown as earmarked for the aforesaid
purpose, then the argument of the respondent that on the date of issuance
of Section 4 notification, in February 1997, the plot was agricultural in
nature was contrary to the records, more so when originally the said land
was acquired on 25.3.1983 and continued to remain in the possession of the
respondents thereafter.
16. In support of his submission that the LAC committed a patent
error in treating the subject land as agricultural in nature and in taking
recourse to the Government evaluation register/circle rates as reflected in
the notification dated 25.7.1997 issued by the Land & Building Department,
which provided that w.e.f. 1.4.1997, the indicative price of agricultural land
acquired by the Government would apply to land notified under Section 4 of
the Act before 1.4.1997, the appellant No.1 relied upon the following
judgments :
i. Jawajee Nagnatham vs. Revenue Divisional Officer,
Adilabad, (1994) 4 SCC 595 (para 5)
ii. Land Acquisition Officer, Eluru & Ors. vs. Jasti Rohini
(Smt.) & Anr., (1995) 1 SCC 717 (Head note „D‟)
iii. U.P. Jal Nigam, Lucknow (Through its Chairman) & Anr. vs.
Kalra Properties (P) Ltd., Lucknow, (1996) 3 SCC 124
(Para 5)
iv. Ranvir Singh & Anr. vs. UOI, (2005) 12 SCC 59 (Head
Note „C‟) (Para 24)
17. It was urged on behalf of the appellants that the nature of the
said land had changed from rural to urban and as the land in the area had
been converted to developed area through a special Gazette notification, its
character on the date of issuance of Section 4 notification was fully
developed and residential in nature. [(Refer : Delhi Development Authority
vs. Land Acquisition Collector & Anr. (130) 2006 DLT 1 (DB)].
18. On the other hand, Mr. Sanjay Poddar, Advocate, who appeared
for respondent No.1/Union of India, supported the impugned judgment and
submitted that the learned ADJ had rightly rejected the documentary
evidence produced by the appellants seeking enhanced compensation
namely, the certified copies of four perpetual lease deeds (Ex.A-7 to Ex.A-
10) executed by the DDA in respect of residential plots measuring between
218.5 to 242 sq. meters, on the ground that the acquired land in question
was surrounded by the area developed by DDA out of its own resources and
it was much larger in dimension as compared to the parcels of land covered
by the aforesaid perpetual lease deeds, and further, it was being maintained
as a green area on the date of the notification. It was emphasized that
small plots in a developed area could not be compared with a large
undeveloped plot for calculation of market value. He further submitted that
the principles for determination of compensation were well settled and the
prices reflected in the perpetual lease deeds could not be taken as reflecting
the representative price for the subject land, which was undeveloped.
19. Counsel for respondent No.1 pointed out that a status quo order
had been operating in WP(C) No.1134/92 filed by the appellants challenging
the earlier acquisition proceedings, which was ultimately allowed vide order
dated 30.1.1996, and that right through the said proceedings, the land was
maintained as a green area, which was a fact also borne out on a perusal of
para 5 of the affidavit filed by the DDA in the contempt proceedings initiated
by the appellants. The stand of the respondents was that as a result of the
said status quo order, no development activity could be undertaken on the
acquired land which retained its character of an agricultural piece of land, in
the midst of Vasant Kunj which was developed by the DDA. The application
of the notification issued by the Land & Building Department dated
25.7.1997 to the subject land, for assessing its market value, was sought to
be justified on the ground that the land was maintained as a garden right
from the beginning. He particularly referred to the revenue records (Khasra
Girdawaries), Ex.R-1 to Ex.R-4, for the years 1977-78 to 1980-81, 1986-87
to 1989-90, 1990-94, 1994-95, to fortify his submission that the said land
was shown as "Ghair Mumkin Bagh", and to the averments made by the
appellants in para 3 of the contempt petition where the acquired land was
described as a "fruit garden".
20. Lastly, it was urged that there was no other evidence placed on
record by the appellants to support their claim for higher compensation over
and above what was awarded by the LAC and upheld in the impugned
judgment, as the appellants had not stepped in the witness box and had
failed to file any affidavit in support of their claim, due to which no
opportunity was given to the respondents to cross-examine them with
regard to the documentary evidence placed by them on record (Ex.A-7 to
Ex.A-10). Mr. Poddar submitted that no oral evidence was produced by the
appellants to suggest that the acquired land possessed similar advantages to
the parcels of land, which were subject matter of the perpetual lease deeds
(Ex.A-7 to Ex.A-10), and thus they failed to demonstrate that the acquired
land and the lands covered by the sale transactions bear any similarity or
have similar potentiality/advantages/features so as to entitle them to claim
market value on parity. In support of his submissions, he relied on the
following decisions:-
i. RFA No.677/1994 entitled "Laxmi Narain Bansal vs. UOI"
decided on 30.9.2008 (paras 16 to 23)
ii. Bhim Singh & Ors vs. State of Haryana & Anr., (2003) 10
SCC 529 (paras 7 & 10)
iii. Delhi Housing Company vs. UOI & Anr., 111 (2004) DLT
246 (Para 3 to 6)
iv. UOI vs. Pramod Gupta (Dead) by LRs & Ors., (2005) 12
SCC 1 (Para 78)
v. Ranvir Singh & Anr. vs. UOI, (2005) 12 SCC 59 (Head
Note „C‟) (Paras 24-26 & 33)
vi. Raj Devi & Ors. Vs. UOI & Anr., 145 (2007) DLT 438
(paras 3,7,8, & 10)
vii. LAA No.673/2008 entitled "Ved Prakash & Ors. vs. UOI &
Anr." (paras 28 to 30)
21. In rebuttal, appellant No.1 reiterated the submissions made by
him earlier. He disputed the contention of the respondents that a small plot
in a developed area could not be compared with large undeveloped plots by
submitting that their plot measuring 2½ acres was not incomparable with a
parcel of land measuring 300 sq. yards and placed reliance on a decision of
the Supreme Court in the case of Bhagwathula Samanna & Ors. vs. Special
Tahsildar & Land Acquisition Officer, Visakhapatnam Municipality, reported
as AIR 1992 SC 2298, wherein the yardstick applicable for comparison of
small plots to big plots was elaborated. It was strenuously urged that the
Khasra Girdawaries relied upon by the respondents (Ex. R-1 to R-4) did not
reflect the correct position on the ground. Appellant No.1 stated that Ex.R-1
to R-4 are contrary to the respondents‟ own submission, as made in the
reply filed in CCP No.461/96, that in the composite plan of Vasant Kunj
Residential Scheme drawn in March 1987, the acquired land was earmarked
for a Higher Secondary School & a Police Station, and could not be returned
to the appellants as it was a part of a huge residential scheme.
22. With respect to the cost of development of land, the appellant
No.1 contended that the respondents had produced RW-1, an Executive
Engineer, DDA as a witness, who had taken only the plotable area into
consideration for arriving at the cost of development of residential land in
Sector „C‟, Pocket 5, Vasant Kunj, but he had erred in doubling the internal
and external cost. He stated that while the methodology used for calculating
the internal development cost and external development cost was correct,
but the conclusions arrived at by RW1 were erroneous. He further stated
that after the judgment of the Supreme Court in the case of R.L. Jain (D) by
LRs. vs. DDA & Ors., reported as AIR 2004 SC 1904, the cost of
development could not have been a relevant consideration towards
calculation of compensation in the present case, as it had been incurred
anterior to the issuance of the Section 4 notification. In the present case,
despite the fact that the acquired land in question had already been taken
possession of by the DDA in March 1987 itself, the appellants were still
willing to suffer one third deduction towards development costs, which
otherwise are deducted only for development of raw agricultural land.
23. This Court has heard extensive arguments addressed by the
parties and carefully considered their submissions in light of the documents
forming part of the trial court record and the judgments cited by both sides.
The pivotal issue which engages this Court is as to whether the market value
of the land in question was correctly assessed in the impugned judgment for
the purpose of grant of compensation to the appellants under the Act.
24. The law mandates that when the State compulsorily deprives a
person of his land for public purpose, by invoking the provisions of the Land
Acquisition Act, he must be paid compensation in accordance with law, i.e.,
he must be paid the true market value of the acquired land. It has been
held in a catena of decisions that the market value, as postulated in Section
23(1) of the Act, is deemed to be the just and fair compensation for the
acquired land and that the words "market value" would be the price of the
land prevailing on the date of publication of the preliminary notification
under Section 4(1) of the Act. The acid test for determining the market
value of the land is the price, which a willing vendor might reasonably
expect to obtain from a willing purchaser. In determining the market value,
the factors enumerated in Section 23 are to be taken into consideration, and
those set out in Section 24 are to be excluded. There cannot be any
mathematical accuracy in ascertaining the amount of compensation payable.
As noted in the case of Viluben Jhalejar Contractor (deceased) through LRs
v. State of Gujarat AIR 2005 SC 2214:
"Para 20: The amount of compensation cannot be ascertained
with mathematical accuracy. A comparable instance has to be
identified having regard to the proximity from time angle as
well as proximity from situation angle. For determining the
market value of the land under acquisition, suitable
adjustment has to be made having regard to various positive
and negative factors vis-à-vis the land under acquisition by
placing the two in juxtaposition. The positive and negative
factors are as under:
Positive factors Negative factors
(i) smallness of size (i) largeness of area
(ii) proximity to a road (ii) situation in the interior
at a distance from the road
(iii) frontage on a road (iii) narrow strip of land with
very small frontage
compared to depth
(iv) nearness to developed area (iv) lower level requiring the
depressed portion to be
filled up
(v) regular shape (v) remoteness from
developed locality
(vi) level vis-à-vis land under (vi) some special
acquisition disadvantageous factors
which would deter a
purchaser
(vii) special value for an owner of
an adjoining property to whom it
may have some very special advantage"
25. For ascertaining market value of the acquired land, the Court
can no doubt rely upon such sale transactions, which would offer a
reasonable basis to fix the price, for which purpose, a sale transaction
relating to a smaller parcel of land can be considered for the purpose of
assessing the market value in respect of a large tract of land, after making
appropriate deductions such as for development of land, for providing space
for roads, sewers, drains, expenses involved in formation of a layout, lump-
sum payments, as well as for the waiting period required for selling the sites
that would be formed and other expenses involved therein, but before doing
so, the evidentiary value of such a sale deed is required to be carefully
scrutinized. As held in the case of Land Acquisition Officer vs. Nookala
Rajamallu reported as (2003) 12 SCC 334, in order to adopt the price
reflected in the sale deed, the following conditions are required to be met:
"9. It can be broadly stated that the element of
speculation is reduced to a minimum if the
underlying principles of fixation of market value with
reference to comparable sales are made:
(i) when sale is within a reasonable time of the date
of notification under Section 4(1);
(ii) it should be a bona fide transaction;
(iii) it should be of the land acquired or of the land
adjacent to the land acquired; and
(iv) it should possess similar advantages
10. It is only when these factors are present, it can
merit a consideration as a comparable case (see
Special Land Acquisition Officer v. T.Adinarayan
Setty AIR 1959 SC 429)."
26. Appellant No.1 laid great emphasis on the fact that when it came
to returning the subject land back to the appellants, in terms of the order
dated 30.01.1996 passed by the Division Bench in W.P.(C) 1134/1992, the
DDA stated that the possession of the said land could not be returned to the
owners as the same was declared consumed in the Residential Scheme
called Vasant Kunj, but when it came to grant of compensation for the said
plot of land, it was graded as "agricultural" and the notification dated
25.07.1997 issued by the Land & Building Department was applied for
arriving at the fair market value of the land. In this regard, the stand of the
DDA, as taken by it in its affidavit dated 26.2.1997 filed in CCP
No.461/1996, is of relevance. Paras No. 6, 7 & 8 of the aforesaid affidavit
need to be highlighted and are reproduced hereinbelow for ready reference:
"Para 6. That the land in question is part of the
plans which have been prepared in respect of Vasant
Kunj Residential Scheme. The land is earmarked in
the said plan for use of the purpose of police station
and higher secondary school. It was not possible for
the Delhi Development Authority to release the land
in question. It was not possible for the Delhi
Development Authority to give back the possession
of the land as the same was part of the huge
residential scheme, which has been completed by
the Delhi Development Authority. The only
alternative with the DDA was to allot an alternative
plot to the petitioner. No land similarly situate was
available for allotment to the petitioner. In these
circumstances, it was felt that it would be necessary
to acquire the land and accordingly notification under
Sec. 4 of the LAA was issued on 19th February,
1997, and the Lt. Governor of Delhi has also been
pleased to invoke the provisions of Section 17(1) &
(4) of the Land Acquisition Act. The Lt. Governor
has further directed that the provisions of Section
5(a) will not apply to this acquisition.
Para 7. That it is respectfully submitted that
since the land could not be released because it was
part of a huge residential scheme, which has almost
been implemented, it became necessary for the DDA
to initiate acquisition proceedings and the land is
now being acquired and notification under Sections 4
& 17 have already been issued. The deponent
respectfully submits that the petitioner would be paid
the market price of the land as obtaining on
19.2.1997, and the deponent has been legally
advised that his would be sufficient compliance of
the orders of this Hon‟ble Court.
Para 8. That the deponent respectfully submits
that since the land could not be released, the
proceedings for its acquisition have been initiated
and the petitioner would be paid the market value as
obtaining in February, 1997, together with such
other amongst as provided under the LAA".
27. Having regard to the categorical stand taken by the DDA in its
aforesaid affidavit, to the effect that the land in question was a part and
parcel of the plans prepared in respect of Vasant Kunj Residential Scheme
and was earmarked in the site plan for the purpose of building a police
station and a higher secondary school and further, that it was not possible
for the DDA to return the possession of the land to the appellants, as it was
part of a huge residential scheme which had already been completed by the
DDA, the inevitable conclusion is that the market value of the expropriated
land could not have been determined by treating it as agricultural land.
28. A perusal of the impugned judgment passed by the Reference
Court shows that though notice was taken of the notification dated
25.07.1997 issued by the Land and Building Department, Govt. of NCT of
Delhi, whereunder the price of agricultural land, excluding the land situated
in river bed between the forward bunds, was fixed for acquisition purpose
w.e.f. 01.04.1997, @ `10 lacs per acre, ultimately reliance was placed on
the judgment of the Division Bench of this Court in the case of Nand Kishore
(supra). In the said case, which dealt with appeals pertaining to village
Mehrauli, notifications issued under Section 4 of the Act, starting with the
notification dated 13.11.1959 and ending with the notification dated
21.11.1978, were subject matter of consideration for the purposes of
examining the decision of the Reference Court assessing the market value of
the acquired land. In the aforesaid decision, while considering the claims of
the landowners for enhanced compensation, the Court took notice of the fact
that there was no evidence by way of sale deeds, to show what was the
prevailing market price of the land at the given time and hence, the Court
had to assess the same on the basis of other parameters, including the
earlier decisions of the Division Bench, fixing the market value of the land in
the same area. Taking into consideration the stand of the appellants therein
that while determining the market value of the acquired land, it ought to
have been considered that the land had great potential value as building
sites, as the entire Mehrauli area had been urbanized and there was a lot of
building activity in the area right from the year 1960 onwards, the Division
Bench had observed as below:-
"8. Coming to the aspect about the potential value of
the land as a building site it is first to be noted that
Mehrauli had a Notified Area Committee which is
apparent from Notifications No.F.8(8)/54-LSG(ii) and
F.8(8)/54-LSG containing the names of the members
of the Notified Area Committee. From these
notifications, it is clear that in the year 1957
Mehrauli had a Notified Area Committee. The
entire Village Mehrauli was urbanised by
Notification No.RNZ/526 dated 23rd May, 1963.
These notifications show that the entire Village
Mehrauli had the potentiality of being used as
building site. Potentiality of land would mean such
uses to which it can be put in the near future. It was
held by this Court in Anar Singh v. Union of India,
AIR 1985 Delhi 298 that "Potentiality is a right and
proper subject for consideration in ascertaining the
compensation to be paid on expropriation. Prospects
and possibilities of future development ought to be
taken into account in determining the price to be
paid for property compulsorily acquired". Thus for
determining the market value of the land under
acquisition the Court does not go by the actual use
to which the land was being put at the time of the
notification under Section 4. The Court has to see
the better use to which it is reasonably capable of
being put in the immediate or near future. If the
acquired land has the building potentiality, it should
necessarily be taken into account for determining its
market value. In determining building
potentiality several factors come into
consideration, such as the fact that there was a
Notified Area Committee in the area much
before the date of the notification under
section 4 of the Act; the suitability of the
acquired land for purposes of being used as
building site; availability of water and electric
supply in the area, accessibility to the land by
way of roads and path ways etc. Most of these
things were available in Mehrauli at the
relevant time. Keeping this in view we are of
the opinion that the land under acquisition had
good building potentiality at the relevant time
and it continued to enjoy this advantage during
the entire period under consideration in the
present batch of appeals." (emphasis added).
29. After taking note of the rising trend in the market price of the
land during the relevant period from the year 1955 onwards, which trend
continued during the entire period under consideration, i.e., w.e.f. November
1959 to November 1978, the Division Bench held that it had no hesitation in
holding that the lands, subject matter of the appeals, did enjoy good
potential value as building sites; further, that urbanization had started in the
area during the relevant period and a Notified Area Committee had come up
during the mid-fifties. In the absence of any evidence by way of sale
transactions during the relevant period, guidance was taken from a decision
of the Supreme Court in the case of Gokal vs. State of Haryana reported as
AIR 1992 SC 150 to fix the market value for various notifications under
consideration at amounts ranging from `10,000/- per bigha for the
notification issued under Section 4 of the Act on 13.11.1959 to `30,000/-
per bigha for the notification issued under Section 4 of the Act on
21.11.1978.
30. In the case in hand, it was fallacious on the part of the
Reference Court to fix the market value of the acquired land by calculating
escalation in the price @ 12% per annum from 21.11.1978 (the date of
issuance of Section 4 notification, subject matter of consideration in the case
of Nand Kishore(supra)) upto 19.02.1997 (the date of issuance of Section 4
notification in the present case). Adopting the aforesaid method for
determining the market value of the acquired land, by providing escalation
in the rate spanning over a couple of decades has been frowned upon by the
Courts. In the case of General Manager, ONGC Ltd. Vs. Rameshbhai
Jivanbhai Patel and another reported as (2008) 14 SCC 745, the Supreme
Court observed that taking recourse to the mode of determining the market
value by providing appropriate escalation over the proved market value of
nearby lands in previous years, where there is no evidence of any
contemporaneous sale transactions or acquisitions of comparable lands in
the neighbourhood, is a reasonably safe method only if applied for a period
of four to five years. But for a longer period of time, even if reliance is
placed on sale transactions/acquisitions related to neighbouring land, it
would still be an unsafe method and an unreliable standard for determining
market value, because over the course of years, the "rate" of annual
increase may itself have undergone a drastic change. Moreover, when in the
present case, the appellants had placed on record, sale transactions entered
into during the relevant period, there is no justification for adopting the
aforesaid method of escalation for ascertaining the fair market value of the
acquired land.
31. Further, application of the notification dated 25.07.1997, issued
by the Land and Building Department, Govt. of NCT of Delhi, to the subject
land was itself erroneous as the said notification dealt with the fixation of
indicative price of "agricultural land/land situated in the river bed between
the forward bunds". In view of the decision in the case of Nand Kishore
(supra), it was no longer debatable in the present case that the subject land
had great potential value as a building site. When such was the position
way back in the year 1963, when admittedly the entire village Mehrauli was
urbanised by virtue of a notification dated 23.05.1963, which itself
demonstrated that the land had the potentiality of being used as building
sites, it was untenable for the Reference Court to have fixed the market
value of the land, by treating it as agricultural land, after the passing of
almost three and a half decades.
32. Having arrived at the conclusion that the market value of the
land in question was incorrectly assessed in the impugned judgment, this
Court has now to examine the evidence produced on the basis of which the
appellants seek enhancement in the market value. The appellant No.1 had
contended that the true market value of the land could have been
determined with reference to the comparable land transactions entered into
during the relevant period, as the perpetual lease deeds placed on record
were of dates proximate to the date on which the land was acquired in the
present case and the same having been executed by the DDA would be
deemed to be bona fide in nature. The appellants had placed on record
certified copies of four perpetual lease deeds (Ex.A-7 to Ex.A-10), which
pertained to Pocket-C in the Vasant Kunj Residential Scheme for the period
from 22.09.1995 to 10.12.1996. While no reasoning has been given in the
impugned judgment for completely discarding the said documents, counsel
for the respondents had urged that the aforesaid documentary evidence
pertained to perpetual lease deeds executed by the DDA in respect of
residential plots measuring between 218.5 sq.mtrs. to 242 sq. mtrs., which
were small sized plots existing in an already developed area, and they could
not have been taken into consideration for calculation of market value in the
present case, as they did not reflect the representative price of the subject
land, which was undeveloped.
33. The aforesaid argument of the learned counsel for the
respondent cannot be accepted as an absolute proposition of law. Rather,
the same has to be examined in the contextual background. In the first
instance, one cannot overlook the fact that the value of freehold property is
always more than that of leasehold property, as the tenure of the latter
property is a fixed one and the terms and conditions imposed for holding
such a property are far more stringent in nature. So, the acquired land,
being freehold in nature, was unfettered by any conditions, and was in a
more advantageous position than the parcels of land which are subject
matter of perpetual lease deeds. As a result, this Court is inclined to agree
with the appellants that the perpetual lease deeds, placed on the record by
the appellants, could not have been completely discarded. However, some
deductions from the sale consideration could certainly have been made for
the reason that a large tract of land will not fetch the same price as a small
sized developed plot.
34. At the cost of the repetition, it may be reiterated that the
increase in land price is dependent on the situation of the land, nature of
development in surrounding area, availability of land for development in the
area, and the demand for land in that area. The Courts have taken judicial
notice of the fact that while in rural areas, ordinarily, increase in price would
be slow and gradual, in urban or semi-urban areas, where development is at
a fast pace, the demand for land is high and where there is construction
activity undertaken all around, escalation in the market price is at a much
higher rate and has touched 30% to 50% or more per year, during the
nineties. [Ref. General Manager, ONGC Ltd. (supra)].
35. In the instant case, the potential value of the land in question as
a building site was clearly admitted by the DDA itself, when it stated in its
affidavit dated 26.02.1997 that the acquired land of the appellants was part
of a huge residential scheme, known as Vasant Kunj Residential Scheme,
which had almost been fully implemented and thus, the land could not be
released to the appellants. Merely because the land was being maintained
as a green area by the respondent on the strength of an order of status quo
passed in Civil Writ Petition No.1134/1992, does not mean that the land did
not have the potential value as a building site. No doubt, one of the
parameters for fixing the market value of the acquired land is the
potentiality of the land, but the Courts do not go by the actual use to which
the land was being put at the time of the notification under Section 4. What
is relevant for the Court to see is the better use to which it is reasonably
capable of being put in the immediate or near future. In the words of the
Supreme Court, in the case of Suresh Kumar vs. Town Improvement Trust
reported as (1989) 2 SCC 329, a land which is certainly or likely to be used
in the immediate or reasonably near future for building purposes but which
at the valuation date is wasteland or has been used for agricultural
purposes, the owner, however willing a vendor he is, is not likely to be
content to sell the land for its value as waste or agricultural land as the case
may be. The possibility of it being used for building purposes would have to
be taken into account. However, it must not be valued as though it had
already been built upon. It is the possibilities of the land and not its realised
possibilities that must be taken into consideration. In other words, the value
of the land should be determined not necessarily according to its present
disposition, but laid out in its lucrative and advantageous way in which the
owner can dispose it of. It is well established that the special, though
natural adaptability of the land for the purpose for which it is taken, is an
important element to be taken into consideration in determining the market
value of the land. In such a situation, the land might have already been
valued at more than its value as agricultural land, if it had any other
capabilities. However, capabilities which are to be taken into consideration
are only reasonable and fair capabilities and not far-fetched and hypothetical
ones. In sum, in estimating the market value of the land all of the
capabilities of the land, and all its legitimate purposes to which it may be
applied or for which it may be adapted are to be considered and not merely
the condition it is in and the use to which it is applied by the owner at the
time.
36. It is an undisputed position as borne out from the layout plan of
the area filed by the respondents that the acquired land is situated in
Pocket-A of the Vasant Kunj Residential Scheme and the parcels of land,
subject matter of the perpetual lease deeds are situated in the adjoining
Pocket-C of the same scheme. Hence, in the absence of any evidence to the
contrary, the potentiality and advantages of the subject land situated in
Pocket-A and the parcels of land situated in Pocket-C can be safely
concluded to be similar in nature. Construction activity in the surrounding
area of the acquired land was almost complete at the time of issuance of the
Section 4 notification. The DDA itself had stated so in the year 1997, when it
filed an affidavit in the contempt proceedings. As for the availability of the
land for development in the area, the DDA had also admitted in clear terms
that no land was available in the similarly situated area for allotment to the
appellants. Therefore, it can be assumed that the demand of land in the
area was fairly high. As the land was admittedly situated within the Vasant
Kunj Residential Scheme implemented by the DDA, it has also to be held
that it possessed the potential value for use for building purposes.
37. Insofar as the question whether rates fixed for small plots of
land can form the basis for fixation of the rate for larger plots of land is
concerned, no absolute bar has been laid down in the judicial
pronouncements that the said rates cannot form the basis for fixation of the
rates of larger plots of land, as a determining factor for deciding the market
value thereof. Rather, in the case of Land Acquisition Officer, Revenue
Divisional Officer, Chittor Vs. Smt. L. Kamalamma (Dead) by LRs & Ors. K.
Krishnamachari and Others reported as (1998) 2 SCC 385, the Supreme
Court held that when no sales of comparable land were available where large
chunks of land had been sold, even land transactions in respect of smaller
extent of land could be taken note of as indicative of the price that may be
fetched in respect of large tracts of land, by making appropriate deductions
such as for development of the land by providing enough space for roads,
sewers, drains, expenses involved in formation of a lay out, lump sum
payment, as also for the waiting period required for selling the sites that
would be formed. As noticed in the case of Viluben Jhalejar(supra):
"Para 21: Whereas a smaller plot may be within the
reach of many, a large block of land will have to be
developed preparing a layout plan, carving out
roads, leaving open spaces, plotting out smaller
plots, waiting for purchasers and the hazards of an
entrepreneur. Such development charges may range
between 20% and 50% of the total price."
38. Further, Courts have recognized the fact that there can be two
set of deductions, one for the largeness of the land and another for the
development costs. The documents placed on record by the appellants
indicate that between September 1995 to December 1996, the DDA
executed perpetual lease deeds of residential plots in Pocket-C in Vasant
Kunj area at rates ranging from `28,719/- to `47,542/- per sq. yard. For
the purpose of ascertaining the fair market value of the acquired land, if an
average of the prices of the four perpetual lease deeds is taken, the figure
comes to `37,433.75 paise per sq.yard. To equalize the factor of the market
value of a small plot of land as compared to a large plot of land, a deduction
in the range of 30%-50% from the rate calculated at `37,433.75 paise per
sq.yard can be considered. Having regard to the entire facts and
circumstances of the present case, this Court is of the opinion that deduction
@40% from the average price of `37,433.75 paise per sq.yard shall be a
reasonable basis for arriving at the fair market value of the land. If so
deducted, the figure would work out to `22,460.25 paise per sq. yard.
39. In so far as the deduction towards development costs is
concerned, considering the fact that the acquired land was a tract measuring
12 bighas (i.e. 12096 sq.yards), as against the perpetual lease deeds placed
on the record by the appellants (Ex.A-7 to Ex.A-10), which measured
anywhere between 218.5 to 242 sq. mtrs. (i.e., between 261 to 290 sq.
yards), necessary deductions have also to be made for the extent of land
required for the laying of roads and other civic amenities, including expenses
on account of development of the site by laying-out roads, drains, sewers,
water and electricity lines etc. Such deductions have varied from 20% to
50%, and in the case of Administrator General of West Bengal Vs. Collector,
Varanasi reported as 1988 2 SCR 1025, deduction to the extent of even
53% was allowed. However, normally the Courts have allowed one third
deduction for such purpose. Being mindful of the aforesaid guidelines and
also taking into consideration the willingness expressed by the appellants, to
suffer one third deduction towards development costs, further one third
deduction is allowed on `22,460.25 paise per.sq.yard and the fair market
value of the acquired land, is determined @ `14,973.50 paise per sq.yard,
which is rounded off to `14,974/- per sq.yrd.
40. Accordingly, the appeal is allowed to the extent that the fair
market value of the subject land situated in the revenue estate of village
Mehrauli measuring 12 Bighas in respect of which, notification was issued
under Section 4 of the Act on 19.02.1997, is determined @ ` 14,974/- per
sq. yard. Besides the above, the appellants shall also be entitled to 30%
solatium on the above market value of the land under Section 23(2) of the
Act, 12% on the additional amount under Section 23(1-A) of the Act from
the date of notification issued under Section 4(1) of the Act to the date of
making of the award. On the enhanced market value, the appellant shall be
paid interest under Section 28 of the Act @ 9% per annum from 19.02.1997,
the date of issuance of Section 4 notification for the first year ending on
18.02.1998 and thereafter, @ 15% per annum till the date of tender of
compensation. Interest shall also be paid on the solatium and the additional
amount in view of the judgment of the Supreme Court in the case of Sunder
Vs. UOI reported as 93(2001) DLT 569(SC).
41. This leaves the claim of the appellants for damages on the
market value of the acquired land @7% per annum from 25.03.1983 to
24.03.1984 and @ 13% per annum from 25.03.1984 to 18.02.1997
alongwith interest on damages @ 6% per annum from 19.02.1997 till the
date of payment. In the case of R.L. Jain (supra), a decision rendered
during the pendency of the proceedings under Section 18 of the Act before
the learned Additional District Judge, the Supreme Court held that the
scheme of the Act does not contemplate taking over of possession prior to
issuance of notification under Section 4 of the Act and if possession is taken
prior to the said notification, it will be dehors the Act. It was further held as
below:-
"18. In a case where the land owner is dispossessed
prior to the issuance of preliminary notification
under Section 4(1) of the Act the government
merely takes possession of the land but the title
thereof continues to vest with the land owner. It is
fully open for the land owner to recover the
possession of his land by taking appropriate legal
proceedings. He is therefore only entitled to get
rent or damages for use and occupation for the
period the government retains possession of
the property. Where possession is taken prior
to the issuance of the preliminary notification,
in our opinion, it will be just and equitable that
the Collector may also determine the rent or
damages for use of the property to which the
land owner is entitled while determining the
compensation amount payable to the land
owner for the acquisition of the property. The
provision of Section 48 of the Act lend support to
such a course of action. For delayed payment of
such amount appropriate interest at prevailing bank
rate maybe awarded." (emphasis added)
42. In the present case, the earlier acquisition proceedings which
were initiated with respect to the subject land on 13.11.1959, were declared
to be null and void by a Division Bench of this Court vide judgment dated
30.01.1996. As a consequence of the decision in the case of R.L. Jain
(supra), the appellants herein cannot claim entitlement to compensation or
interest thereon for the period anterior to 19.02.1997, the date on which the
second notification under Section 4 was issued, though the LAC took
possession of the land on 25.03.1983. However, they could have claimed
entitlement to rent or damages on account of use and occupation of the said
land for the period the Government retained possession thereof, i.e., from
25.03.1983 to 18.02.1997. For determining the rent or damages for the use
of the property, recourse could have been taken by the appellants to the
provisions of Section 48 of the Act by approaching the LAC. The decision of
the Supreme Court, in the case of R.L. Jain (supra), came to be rendered on
12.03.2004, much after the award was announced by the LAC on
18.09.1998 and after filing of the reference petition by the appellants on
07.10.1998, but before the date of the impugned judgment. However, the
position on the record is that the appellants did not make any claim for
rent/damages for the use of the said land for the period anterior to the date
of Section 4 notification before the Reference Court, nor was any evidence
led on this point. As the scope of the present appeal is limited to examining
the decision of the Reference Court, no such relief can be granted in the
present proceedings. However, if the appellants have a remedy available to
them to claim rent/damages from the respondent, for the use and
occupation of the said land for the aforesaid period, in terms of the decision
in the case of R.L. Jain (supra), they may exercise their rights in accordance
with law, but without prejudice to the defences that may be available to the
respondent in that regard.
43. The appeal is allowed on the above terms with costs quantified
at `20,000/-.
(HIMA KOHLI)
DECEMBER 24, 2010 JUDGE
rkb/sk
