Delhi High Court
Bed Ram vs Uoi & Ors. on 7 June, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 1st June, 2011
Judgment Delivered On: 7th June, 2011
LA APP.NO.59/2007
BED RAM ......Appellant
Through: Mr.B.P.Gupta, Mr.Deepak Khosla and
Mr.L.C.Chechi, Mr.R.B.Singh, Mr.Satish
K.Verma and Mr.Rajesh Gupta, Advocates.
Versus
UOI & ORS. ......Respondents
Through: Mr.Sanjay Poddar, Standing Counsel (LA),
GNCT Delhi with Mr.R.C.Ray, Advocate
for R-1.
Mr.Ajay Kumar Verma, Standing Counsel
DDA.
And
+LA.APP.41/2007 & CM /2011 (Cross Objections), LA.APP.
58/2007 & CM 3856/2011, LA.APP.60/2007, LA.APP.61/2007,
LA.APP.62/2007, LA.APP.63/2007 & CM 11398/2011,
LA.APP.64/2007 & CM No.942/2011, LA.APP. 65/2007,
LA.APP.66/2007 & CM No.2547/2011, LA.APP.73/2007 & CM
No.938/2011, LA.APP.87/2007, LA.APP.89/2007, LA.APP.91/2007,
LA.APP.412/2007, LA.APP.310/2008, LA.APP.748/2008 & CM
No.945/2011, LA.APP.802/2008, LA.APP.1028/2008,
LA.APP.1033/2008, LA.APP.1034/2008, LA.APP.1037/2008,
LA.APP.89/2009 & CM 11380/2011, LA.APP.116/2009,
LA.APP.130/2009, LA.APP.553/2009, LA.APP.559/2009 & CM
No.923/2011, LA.APP.595/2009 & CM 916/2011, LA.APP.2/2010,
LA.APP.8/2010, LA.APP.101/2010 & CM No.914/2011,
LA.APP.380/2010, LA.APP.957/2010, LA.APP.958/2010,
LA.APP.3/2011, LA.APP.29/2011, LA.APP.54/2011 & CM 9964/2011,
LA.APP.155/2011, LA.APP.156/2011 & CM 11360/2011,
LA.APP.59/2007 & connected Page 1 of 32
LA.APP.159/2011, LA.APP.251/2011, LA.APP.40/2007,
LA.APP.42/2007, LA.APP.43/2007, LA.APP.44/2007,
LA.APP.293/2007, LA.APP.335/2008, LA.APP.1104/2008,
LA.APP.1105/2008, LA.APP.1106/2008, LA.APP.1107/2008,
LA.APP.647/2009, LA.APP.650/2009, LA.APP.311/2010,
LA.APP.314/2010, LA.APP.315/2010, LA.APP.316/2010,
LA.APP.388/2010, LA.APP.699/2010, LA.APP.930/2010,
LA.APP.931/2010, LA.APP.933/2010, LA.APP.934/2010,
LA.APP.1065/2010 & CM 11370/2011, LA.APP.372/2007,
LA.APP.501/2008, LA.APP.508/2008 & CM No.14151/2008,
LA.APP.509/2008, LA.APP.564/2008, LA.APP.565/2008 & CM
No.14141/2008, LA.APP.609/2008, LA.APP.631/2008,
LA.APP.737/2008, LA.APP.739/2008 & CM No.1548/2011,
LA.APP.816/2008, LA.APP.817/2008, LA.APP.876/2008,
LA.APP.966/2008 & CM 1568/2011, LA.APP.992/2008 & CM
No.1288/2009, LA.APP.994/2008 & CM No.523/2009, LA.APP.
995/2008, LA.APP.996/2008 & CM No.1035/2009, LA.APP.
1016/2008, LA.APP. 1035/2008, LA.APP. 1036/2008, LA.APP.
1039/2008, LA.APP. 1041/2008, LA.APP. 1102/2008, LA.APP.
1136/2008, LA.APP.1204/2008 & CM No.919/2011, LA.APP.
1234/2008, LA.APP. 1236/2008, LA.APP. 1235/2008 & CM
11397/2011, LA.APP.550/2009 & CM NO.967/2011,
LA.APP.551/2009 & CM No.11383/2011, LA.APP. No.576/2009 & CM
11386/2011, LA.APP. 580/2009, LA.APP. 607/2009 & CM
11389/2011, LA.APP. 25/2010, LA.APP. 253/2010, LA.APP.
263/2010, LA.APP. 264/2010, LA.APP. 454/2010, LA.APP.677/2010
& CM 11373/2011, LA.APP.678/2010 & CM 11395/2011, LA.APP.
679/2010, LA.APP.680/2010 & CM NO.958/2011, LA.APP.681/2010
& CM No.961/2011, LA.APP.682/2010 & CM 11393/2011, LA.APP.
683/2010, LA.APP.911/2010 & CM No.11364/2011,
LA.APP.946/2010, LA.APP. 947/2010, LA.APP. 949/2010, LA.APP.
951/2010, LA.APP. 952/2010, LA.APP. 140/2011 & LA.APP.560/2009
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
LA.APP.59/2007 & connected Page 2 of 32
PRADEEP NANDRAJOG, J.
1. Un-numbered cross objections and civil miscellaneous
applications which are in the nature of cross objections, if any,
lying unnumbered in the above captioned appeals may be
numbered by the Registry.
2. The instant decision decides aforenoted appeals and
cross objections in such appeals where cross objections are filed.
3. The river Yamuna is not only an important feature of
the city of Delhi, but is also a major source of water supply to the
city. It draws its water from the Yamunotri Glacier in the upper
reaches of the Himalayas and on the way to the plains, is enriched
by the river Tons and needless to state, numerous streams and
rivulets enrich the river in its onward journey. It travels a distance
of about 400 km in the plains before joining river Ganga at
Allahabad.
4. It enters the city of Delhi from the North and flows
Southward and covers a length of nearly 50 km while flowing
through Delhi, of which about 22 km is within the urban stretch
and the balance 28 km in the rural stretch.
5. Over the last century the quality of the water in the
river has deteriorated due to increased waste water discharge, not
only within the city of Delhi, but even upstream, when flowing
through the city of Yamuna Nagar and the city of Panipat, both in
the State of Haryana, where rapid industrialization has resulted in
industrial effluent being discharged into the river water. The eco-
system supporting migratory avifauna and the ground water has
continuously degraded, requiring immediate attention for
conservation.
6. Various plans to harness the potential of the river have
been discussed since early 1980 with reference to the navigational
potential of the river; the aesthetics of the river and requirement of
it being blended with the city of Delhi, as is the river „Thames‟ in
England and the river „Seine‟ in France.
7. Bodies such as the „Ministry of Environment and
Forests‟, „Central Water Power Research Station‟ and „National
Environmental Engineering Research Institute‟ have been
suggesting remedial measures in various reports submitted from
time to time, proposing plans for integration of river Yamuna in the
planning, for the development of the National Capital Region, and
of necessity which includes the National Capital Territory of Delhi.
8. Of the various proposals made, emphasizing the
ecological role of the „Flood Plains‟, abutting the river bed of the
river Yamuna and its conservation imperatives, channelization of
river Yamuna has been proposed, not only for the purposes of flood
control but even drainage improvement and reduction in bank
erosion. Of necessity, the proposals envisage modification of the
river channel, keeping into account the conventional methods for
channelization, involving enlargement of the channel by widening
and/or deepening, to increase the channel capacity to carry water
that would have otherwise spread on to the flood plain.
9. The Nodal Authority for the Planned Development of
Delhi, the much maligned Delhi Development Authority, which is
accused by many of having created urban chaos in Delhi, had
evolved the „Environmental Management Plan‟ for the stretch of
river Yamuna in the National Capital Territory of Delhi, with the
overall objective of rejuvenating the river. The plan delineates the
requirement of the city and makes recommendations after Initial
Environmental Examination of the proposed activities in the „River
Front Development Plan‟.
10. Briefly, the report delineates guidelines for
development of river Yamuna as it flows in the city of Delhi by
dividing the same into various stretches.
11. One such stretch is between the ITO Barrage till the
ILFS-NOIDA Link Bridge in the South and further beyond, in the
Southern direction, as the river flows past the city of Delhi and
enters the State of Uttar Pradesh in the Southern boundary of the
city of Delhi.
12. The stretch with which we are concerned in the instant
Land Acquisition Appeals, is the stretch of the river as it crosses
NH-24 (at the popular bridge called the Nizamuddin Bridge over
the river Yamuna) and proceeds towards the South, crossing lands
of village Behlolpur Khadar, Kilokari, Khizrabad, Jogabai, Okhla,
Jasola and Madanpur Khadar, all of which lie on the Western bank
of the river and Nangli Rajapur and Chuck Chilla, which lie on the
Eastern bank of the river. Graphically reproduced the plan
prepared by the learned Reference Court on inspection carried on
21.11.2006, and to be found in the record of LAC No.2/1998 Bhopal
Singh Vs. UOI & Anr. (in respect of village Nangli Rajapur) would be
as under:-
13. „River Bed‟ is defined as the area, over which the river
flows and denotes the area which, in the ordinary or regular course
of nature, is covered by the waters of the river. „Flood Plain‟ is the
land adjacent to a river, which because of its level topography,
floods when the river overflows.
14. The lands which are subject matter of acquisition in the
instant appeals, lie in the Flood Plain area of river Yamuna, and
mostly in the Western bank and except for a few patches, where
agricultural activities can be undertaken, the land is mostly
grassland, bushy and shrub vegetation. The aquatic vegetation is
very poor in this stretch due to degraded water quality of river
Yamuna.
15. The lands are comprised in the revenue estate of
village Kilokari, Khizrabad and Nangli Rajapur.
16. Flood discharge and levels, at different gauging
stations in river Yamuna, indicate flooding of the area whenever
monsoon is normal or in excess.
17. As would be evident from the plan of the area prepared
by the learned Reference Court, and as extracted hereinabove by
me, the lands with which I am concerned is between the river bank
and the Forward Bund. It has been graphically narrated by the
learned Reference Court in its report dated 22.11.2006, relevant
extract whereof would read as under:-
"The spot inspection has been conducted in terms of
order dated 13.11.06 in the presence of officials from
DDA (Sh. M.M. Rao, Director L.M.), Sh. S.K. Singh (LAC
South), Sh. Raj Shekhar (D.C. South), Sh. Atul Kumar
(Ex. Engineer, Irrigation & Flood Control Department)
who are accompanied with other team of officials from
respective departments. Counsel for the petitioners as
well as respondents are also present.
The officials led to embankment of River Yamuna in
village Nangli Rajapur via Marginal Bund Road through
„Pantoon Road‟. A rough sketch (i.e. Site plan by
approximation) prepared by officials of DDA to give a
broad idea of the location of villages has been handed
over. The same is Annexure 1 and clearly depicts the
location of villages Behlolpur Khadar, Nangli Rajapur,
Kilokari, Chuck Chilla, Khizrabad, Jogabai, Okhla, Jasola
and Madanpur Khadar.
A copy of site plan indicating the khasra no‟s of village
Nanglirazapur has been handed over by officials of LAC
South. The officials explained at site that some of the
Khasra no‟s which are sub-merged or likely to be sub-
merged and are adjacent to water stream has been de-
notified while the others had been acquired. The same
are reflected in different shades in the site plan
(Annexure II). The officials informed that the acquired
land extended upto 500 metres and may be more from
the stream of water which was flowing currently. The
land on both sides at the „site spot‟ appeared to be
under cultivation. However, it is pertinent to note that
officials from Irrigation and Flood Control Department
informed that as and when the water level in river
Yamuna crosses a mark of 204.83, the land gets
covered with water, depending on amount of discharge
of water in the river. It was also pointed out that owing
to aforesaid reasons no development has been
permitted from „Marginal Bund Road‟ till embankment
of River Yamuna (As depicted in Annexure - I). It was
observed that there was no substantial development
except that land appears to be utilized near the site for
agricultural purpose.
Thereafter the officials led to show the approximate
location of land of village Kilokari, Behlolpur and
Khizrabad from Ring Road and D.N.D. Road. The
officials showed that no activity/development on the
land near to the embankment could be undertaken
except for agricultural activity. The spot inspection
commenced at about 2.40 p.m. and has been
completed at about 4.45 p.m.
Sd-
(ANOOP KUMAR MENDIRATTA)
ADDL. DISTRICT JUDGE: DELHI
22.11.2006"
18. It may be highlighted that the Forward Bund, as the
very name suggests, is the raised embankment to contain the
flooded river as and when it overflows, so that the city of Delhi is
not inundated with water, during monsoon. It is obvious that due
to this, there is hardly any construction activity in the area in
question, for the reason most of it is low lying area and is flood
prone. In the words of the learned Reference Court, the topology,
nature and potential for utilization of the subject lands, may be
reproduced by me. It reads as under:-
"As per notification dated 23.6.89 placed on record
about 3500 Hectares of land starting from a point 1 km.
upstream, Wazirabad Barrage road till it outs the
boundary of Union Territory was proposed to be acquired
for channelization of river Yamuna. The purpose of the
project itself suggests the land in the river bed adjacent
to the existing stream of water was to be acquired. The
acquired land being in river bed on forward bund as such
can be safely inferred to be covered during some parts
of the year with water and may be cultivable for other
parts of the year. No evidence has been led by the
petitioners to show that the land was not situated in the
forward bund area. Considering the situation of the land
in the river bed it may not be capable of being utilized as
a normal agricultural land or building site despite the
village being urbanized and cannot be compared with
land other than situated in river bed in village Kilokari.
The development may have taken place in and around
village Kilokari but the same cannot change the
handicaps of land situated in a forward bund area owing
to its typical location and likelihood of flooding during
the monsoons. I may also observe that a mere
construction of an isolated boundary wall or a solitary
temple without indicating the nature of construction
cannot lead to an inference that the land could be used
as a building site or could be compared to land falling
outside the forward bund area. The value of land as
such needs to be assessed by this Court considering the
aforesaid factors."
19. The quote hereinabove extracted by me is from the
reference order dated 18.10.2006 in LAC No.1/2003 titled Bed Ram
Vs. UOI & Anr.
20. By virtue of a notification dated 23.6.1989 issued under
Section 4 of the Land Acquisition Act 1894, a vast track of land ad-
measuring 3500 hectares was proposed to be acquired at public
expense, for a public purpose, namely, „Channelization of Yamuna
River‟. Lands of various villages were covered by the said
notification and needless to state included lands comprised in the
revenue estate of village Khizrabad, Kilokari and Nangli Rajapur. It
may be clarified that not all agricultural lands in the revenue
estate of said 3 villages were notified for the proposed acquisition.
Only the lands which were between the Forward Bund and the river
Yamuna and as stand graphically described by the learned Judge
and as extracted hereinabove in para 17, were the ones which
were proposed to be acquired.
21. The notification in question was followed by a
declaration issued under Section 6 of the Land Acquisition Act
1894 on 22.06.1990 wherein the area and the Khasra number in
each village in respect whereof the notification was issued were
detailed.
22. Pertaining to the revenue estate of village Khizrabad,
subject matter of the present appeals, the Land Acquisition
Collector announced an Award bearing No.18/1992-93. Pertaining
to village Kilokari the Award No.14/1992-93 was announced on
19.6.1992 and pertaining to village Nangli Rajapur the Award
No.16/1992-93 was announced on 19.6.1992.
23. In all the awards, the Land Acquisition Collector
assessed the fair market value of the subject lands for all 3 villages
@ `27,334/- per bigha and needless to state held that the land
owners would be entitled to the interest and such other statutory
benefits as were to be paid on the compensation assessed as per
the Land Acquisition Act 1894.
24. While assessing the fair market value of the lands as on
23.6.1989 i.e. the date of the notification issued under Section 4 of
the Land Acquisition Act 1894, the Land Acquisition Collector took
into consideration various registered sale deeds reflecting the
stated price and therefrom computed that the average price of the
land would come to `18,736/- per bigha. But, noting that vide
Office Order dated 3.5.1990 the Government of Delhi had notified
the minimum price of agricultural land in the Union Territory of
Delhi having 2 rates; `4,50,000/- per acre for agricultural lands
and `1,50,000/- per acre for land situated in the river bed, since
the notification under Section 4 with which he was concerned was
dated 23.6.1989, depressed, by discounting the price by 15% per
annum and concluded by holding that the fair market price as of
23.6.1989 would be `27,344/- per bigha. This price determined for
the land in village Kilokari was held to be price payable for the
acquired land in the other 2 villages as well for the reason the Land
Acquisition Collector assessed the compensation on the minimum
price notified by the Government itself as on 3.5.1990 for the lands
situated in the river bed.
25. Dissatisfied with the assessment made by the Land
Acquisition Collector, the appellants herein sought reference under
Section 18 of the Land Acquisition Act 1894, which was referred to
the Reference Court as per Section 18 of the Act.
26. The learned Reference Court, after framing the issues
in the reference before it and after permitting the parties to lead
evidence in support of their claim, disposed of the references
made, by and under various orders fixing the fair market price at
`89,600/- per bigha for the acquired lands.
27. I note that the reasoning of the learned Reference
Court is pari-materia in each order.
28. The record of the learned Reference Court shows that
before making the assessment, vide order dated 13.11.2006, it
recorded that the Court would inspect the site and notice whereof
was deemed to be given to the parties as per the order.
Thereafter, in the presence of the learned counsel for such parties
who chose to be present at the inspection and in the presence of
the representative of the Land Acquisition Collector and DDA the
learned Judge made a site visit on 22.11.2006 and prepared a spot
inspection report and a site plan, both of which have been
extracted by me hereinabove in para 12 and 17 above.
29. It may be noted that the learned Judge took various
photographs which are placed in LAC No.2/1998 Bhopal Singh Vs.
UOI & Anr. and the same show that the lands are low lying lands
and are, as described by the learned Judge in the report which I
have extracted in para 17 hereinabove.
30. It is not in dispute that the land in question, falls in an
area, which is between the river Yamuna and Ring Road. Since I
am, with consent of learned counsel for the parties treating LA
App.No.59/2007 as the lead matter, it would be relevant to note
that the appellant thereof Bed Ram, appeared in the witness box
as PW-7 before the Reference Court, and admitted in his cross-
examination that except for a petrol pump and the two shops,
there is no abadi around the land. It is also admitted that there is
a naala (drain) in village Kilokari. He admitted that since
construction was not allowed by the Government, no other
construction could come up.
31. Various documents were proved before the learned
Reference Court by various parties and find a mention in the
various orders passed by the learned Reference Court, but I need
not note the same because, before me, while arguing the appeals
learned counsel for the parties pressed into aid only one sale deed
dated 17.3.1988, Ex.PW-3/1 in the reference sought by Bed Ram.
Besides, learned counsel relied upon the decision reported as
Tindey & Ors Vs. Union of India & Anr. 2000 (54) DRJ 384 (DB),
wherein a Division Bench of this Court assessed the market value
for the land situate in village Khizrabad acquired pursuant to a
notification dated 10.05.1976 and assessed the compensation @
`35,000/- per bigha as of 10.5.1976. I may highlight that land
which was subject matter of consideration in Tindey‟s case (supra)
was saline land (salabi) and was acquired for purposes of
constructing a pilot cut in the reach from Nizmudding Bridge to
Okhla Weir. Learned counsel also relied upon the decision
reported as Diwan Ram Swaroop & Ors Vs. Union of India 1992 (48)
DLT 600 perusal whereof shows that the land situate in village
Khizrabad was acquired pursuant to a notification dated
03.06.1961 and was assessed at `12,500/- per bigha.
32. I may highlight that the decision in Diwan Ram
Swaroop‟s case (supra) was the basis on which decision was
premised in Tindey‟s case (supra). In Tindey‟s case, taking the
land value at `12,500/- per bigha as of 3.6.1961 by giving an
annual increment of 12% but denying a progressive increase, the
sum worked out was `35,000/- per bigha. With reference to the
decision reported as Bedi Ram Vs. UOI & Anr. 2001 (93) DLT 150
and a decision dated 4.2.2011 disposing of RFA No.582/1994 Bal
Krishan Kapahi Vs. UOI & Anr. as also a decision of the Supreme
Court reported as Nand Ram Vs. State of Haryana JT 1988 (4) SC
260, it was urged in the alternative, that if the price as per sale
deed dated 17.3.1988 was not to be adopted and the sale price
determined in Diwan Ram Swaroop‟s case was taken to be base
price, percentage increase adopted by the learned Trial Judge as
12% be adopted but the benefit of the progressive increase should
be given and in respect of the plea I must note that learned
counsel made a concession that as was done in Bedi Ram‟s case,
initial increase could be @ 6% per annum followed by 10% per
annum and then 12% per annum, with the cut off years being
1959-1965 (6%), 1966-1973 (10%) and 1974 onwards (12%).
33. Pressing the first argument that the sale deed dated
17.3.1988 should be adopted by this Court to determine the fair
market value as of 23.4.1989, learned counsel heavily relied upon
the decision of the Supreme Court reported as G.Prema Vs. Special
Tehsildar (2010) 12 SCC 502 and the decision reported as Om
Prakash Vs. State of Haryana & Ors. 2011 (IV) AD (SC) 383 and
urged that as held therein the development around the place
which had taken place over the years, where the subject lands
were situate, had to be factored in while determining the fair
market value of the acquired lands. Relying upon the testimony of
Devi Ram PW-6 in the reference pertaining to Bed Ram, the
Patwari of village Kilokari, learned counsel argued that he admitted
that the land in question is situated in a developed area, having
building potentiality, inasmuch as the land situated in village
Kilokari and Khizrabad were acquired for the planned development
of Delhi in the years 1959 and 1961 and on which acquired lands
DDA had developed the residential colonies named „Friends
Colony‟, „Kalindi Colony‟ and „Maharani Bagh‟. It was thus urged
that the area in question had great potentiality; the same being a
reflection of the 3 colonies having come up on the earlier acquired
lands. Pertaining to the sale deed dated 17.3.1988, Ex.PW-3/1,
referred to by me hereinabove, it was argued that the vendor and
vendee of the sale deed were not the residents of the area in
question and thus, the sale transacted between them had to be
taken as the basis for determining the market value of the
acquired land and could not be ignored by labeling the same as a
tainted document and not to be ignored as per the reasoning of
the learned Trial Judge, which reasoning is as under:-
"It may further be observed that, there is no evidence
to reflect that there could have been an increase in
prices of land as per sale deed dated 17.3.88 @ Rs.
2,07,500 per bigha relied by petitioner when compared
with Ex.R1 (Rs.43,200/- per bigha) or min. price fixed
w.e.f. 27.4.90 as per policy within a short span of time.
It is a known fact that the scheme of acquisition is
known to the villages and residents much before the
actual notification u/s 4 is issued as numerous surveys
are made prior to any acquisition proceedings. As such
the execution of sale deed at enhanced rates to claim
increased compensation cannot be ruled out. For the
aforesaid reasons sale deed dated 17.3.88 relied by
petitioner does not appear to be reliable to assess the
value of land."
34. I have extracted the quote herein above from the
decision dated 25.9.2006 in LAC No.1/2003 „Bed Ram vs. UOI &
Anr.‟.
35. Pertaining to village Kilokari, an additional argument
was advanced which was predicated on the decision dated
10.10.1984 in RFA No.117/1974 Smt.Angoori Devi vs. UOI & Ors.
wherein pertaining to a notification dated 13.11.1959 fair market
value assessed by this Court for lands in village Kilokari was
`26,000/- per bigha as against `12,500/- per bigha for the land in
village Khizrabad wherein in Diwan Ram Swarup‟s case (supra)
compensation assessed as of the date 3.6.1961 was `12,500/-. It
was thus urged that it was apparent that land in village Kilokari
was more valuable than the rest and for which it was urged that
Kilokari needs to be dealt with on a better footing.
36. Per contra, Shri Sanjay Poddar, Standing Counsel for
the Land Acquisition Collector urged that the Trial Court had visited
the spot and had acquired spot knowledge about the land and its
topography, and has recorded a categorical finding of fact, to the
effect that the acquired lands are in the river bed on Forward Bund
and as such, can safely be inferred to be covered during some part
of the year with water and may be cultivable for other parts of the
year. Since the lands fall in the river bed, they may not be capable
of being utilized as a normal agricultural land and in any case are
unsuitable to be built upon. The development may have taken in
and around village Kilokari and village Khizrabad, but the same
was on the lands on the western side of Ring Road, instant lands
are on the eastern side of Ring Road; the earlier acquired lands
were not low lying lands. They were just like any other ordinary
agricultural lands. Counsel stated that the situational
disadvantage of the instant lands was writ apparent and that mere
isolated construction of a petrol pump and 2 unauthorized shops to
which Sh.Bed Ram had referred to in his testimony were of no
significance. Learned counsel highlighted that the witnesses had
admitted that no construction was permissible on the land and
thus urged that merely because 3 colonies: Maharani Bagh, Kalindi
Colony and New Friends Colony had come up on the acquired lands
mainly of village Kilokari and partly of village Khizrabad could not
impact the potentiality of the instant lands which were qualitatively
disadvantageously situated, being on the eastern side of Ring Road
and across the Forward Bund spanning the area between the
Forward Bund and the river Yamuna.
37. Learned counsel clarified that even if it be held that the
learned Trial Judge has inadvertently referred to as the subject
lands as forming the River Bed rather than the Flood Plain land, but
hasten to add that this does not impact the reasoning of the
learned Trial Judge inasmuch as the land being the Flood Plain land
was prone to water-logging and indeed this was the reason why
hardly any crop was grown on the lands and the fact that the
natural vegetation on the land being grass land, bushy and shrub
vegetation.
38. In reply to the arguments pertaining to the progressive
increase to be effected while determining the fair market value of
the land, Shri Sanjay Poddar relied upon the latest judgment of the
Supreme Court reported as General Manager, Oil & Natural Gas
Corporation Ltd Vs. Rameshbhai Jivanbhai Patel & Anr. 2008 (14)
SCC 745 and highlighted paragraphs 13 and 14 thereof.
39. Learned counsel highlighted that the solitary sale deed
relied upon i.e. the sale deed dated 17.03.1988 executed by Shri
Ranjit Singh S/o Shri Badlu Ram in favour of Shri Vinod Kumar S/o
Shri Kedar Nath, whereby a parcel of land ad-measuring 1 bigha 1
biswa was sold for a sum of `2,07,500/-, the recitals of the same
would show that `40,000/- was paid in advance and balance i.e.
`1,67,500/- was to be paid at the time of registration of the sale
deed. The sale deed did not make it clear as to what was the
mode of payment of balance sale consideration. Counsel
highlighted that the sale deed was executed a few months prior to
the date of the notification in question and justified the reasoning
of the learned Trial Judge which was questioned by the learned
counsel, which reasoning I have extracted in para 33 above.
Learned counsel further urged that except for this solitary sale
deed, no other evidence in the shape of voluntary sale transaction
has been placed on record by the appellants/land-owners. Counsel
highlighted that in rebuttal, the Union of India submitted 4 sale
deeds, Ex.R-1 to Ex.R-4 which were also considered at the time of
announcing the awards which showed that the average sale price
was `18,736/- per bigha. Counsel highlighted that 2 sale deeds out
of these 4 were executed by the land-owners/claimants, namely,
Smt.Angoori Devi. Counsel urged that the paucity of sale deeds
showed paucity of sale transactions and thus there was no demand
for the land in question and thus concluded that the land did not
have any potentiality to command higher value as claimed by the
appellants. Learned counsel contended that the learned Reference
Court has rightly rejected the solitary sale-deed relied upon by the
appellants. Learned counsel highlighted that such types of
documents are created not only for the purposes of inflating the
price, but also to secure alternative plots inasmuch as the Large
Scale Acquisition Policy for Agricultural Lands in Delhi requires that
the individual, whose land is acquired, must have more than 1
bigha land to be entitled to a residential plot in a developed
colony. Learned counsel highlighted the decision of the Supreme
Court reported as Mohammad Raofuddin Vs. Land Acquisition
Officer 2009 (14) SCC 367, wherein it was observed as under:-
"12. In Shaji Kuriakose v. Indian Oil Corpn. Ltd. this
Court had observed as under: (SCC pp. 652-53, para
3)
"3. ... While fixing the market value of the
acquired land, comparable sales method of
valuation is preferred than other methods of
valuation of land such as capitalisation of net
income method or expert opinion method.
Comparable sales method of valuation is
preferred because it furnishes the evidence for
determination of the market value of the
acquired land at which a willing purchaser would
pay for the acquired land if it had been sold in the
open market at the time of issue of notification
under Section 4 of the Act. However, comparable
sales method of valuation of land for fixing the
market value of the acquired land is not always
conclusive. There are certain factors which are
required to be fulfilled and on fulfilment of those
factors the compensation can be awarded,
according to the value of the land reflected in the
sales. The factors laid down inter alia are: (1) the
sale must be a genuine transaction, (2) that the
sale deed must have been executed at the time
proximate to the date of issue of notification
under Section 4 of the Act, (3) that the land
covered by the sale must be in the vicinity of the
acquired land, (4) that the land covered by the
sales must be similar to the acquired land, and
(5) that the size of plot of the land covered by the
sales be comparable to the land acquired. If all
these factors are satisfied, then there is no
reason why the sale value of the land covered by
the sales be not given for the acquired land.
However, if there is a dissimilarity in regard to
locality, shape, site or nature of land between
land covered by sales and land acquired, it is
open to the court to proportionately reduce the
compensation for acquired land than what is
reflected in the sales depending upon the
disadvantages attached with the acquired land."
40. It was argued by Mr.Sanjay Poddar and for which
learned counsel relied upon the decision of the Supreme Court
reported as Kanwar Singh & Ors. vs. Union of India 1998 (8) SCC
136, that the lands situated in various villages acquired through
the same notification cannot be given the same market value
unless and until it is proved that the situation and potentiality of
the land in 2 different villages are the same. To this effect, he
pointed out that even in Nand Ram‟s case (supra), relied upon by
the appellants, it was held that the similarly situated land in a
village is to be given the same price and not all. Thus, it was
argued that unless and until the potentiality and situation of the
land sought to be acquired are similar to the land sought to be
compared, a uniform rate cannot be awarded. This argument of
learned counsel I am noting was in response to the submission
made that the solitary sale deed pertaining to village Kilokari be
treated as reflective of the market value of lands in village
Khizrabad and village Nangli Razapur. Mr.Sanjay Poddar further
argued that while assessing the market value of the acquired
lands, the principle, as laid down in Mohammad Raofuddin‟s case
supra is to be followed; namely, (i) the court is duty bound to
ensure that the compensation determined is just and fair not only
to the individual whose property is acquired, but also to the public
which has to pay for it; and (ii) the land situated on the frontage
having special advantages cannot be treated at par with the land
situated in the interior undeveloped area. Further, the court is
required to act as a willing and informed buyer and seller, meaning
thereby, such a buyer and seller must be unaffected by the special
needs of a particular purchase and must have the information
required by a prudent person relating to the land sought to be
acquired. Counsel highlighted that the learned Trial Court, which
had visited the site, has acted as an informed buyer and seller
while recording the finding about the nature of the land, which
finding cannot be disturbed without any cogent evidence.
41. Mr.Ajay Verma, learned counsel for DDA while adopting
the arguments advanced by Mr.Sanjay Poddar, added that the land
acquired for residential colonies was not the purpose under the
present notification and that as held in the decision reported as
Executive Director vs. Sharat Chandra Bisoi 2000 (6) SCC 326,
lands can be classified as situated near a river or at a distance
there-from i.e. within a village belting can be resorted to.
42. In rejoinder, learned counsel for the appellants,
submitting rejoinder submissions through Mr.B.P.Gupta, Advocate
relied upon the decision of this court reported as Baldev Singh
Dhillon & Ors. Vs. Union of India & Ors 2005 (121) DLT 606, and
with reference to paragraphs 23 and 70 thereof contended that in
the said decision, pertaining to the instant lands, where the
challenge to the acquisition was that there was no ground to
invoke the urgency clause i.e. Section 17(1) and 17(4) of the Land
Acquisition Act 1894 thereby denying the right of hearing to the
land-owners affected under Section 5(A) of the Act, the
respondents had cited the looming threat of unauthorized
colonization as the reason to deny such right and therefrom
counsel sought to infer that the lands had a potentiality for
development and colonization. Mr.L.C.Chechi, learned counsel
supplemented, with reference to a notification dated 25.1.1995
issued under Section 48(2) of the Land Acquisition Act 1894 read
with an order dated 5.11.2004, both of which were not filed before
the learned Reference Court, but were taken on record as
additional evidence pursuant to an application filed under Order 41
Rule 27 of the Code of Civil Procedure, and urged that the
notification and the order prove that the lands which were under
the River Bed were de-notified from acquisition as they were held
not required for the purpose for which the acquisition was made,
and therefrom counsel urged that it was apparent that the
remaining lands were not „River Bed‟.
43. Having considered the submissions urged by learned
counsel for the parties I propose to deal with the same after noting
the decision of the Supreme Court reported as (2008) 14 SCC 745
General Manager Oil & Natural Gas Corporation Ltd. Vs.
Rameshbhai Jivanbhai Patel & Anr.
44. The matter reached the Supreme Court, on the facts
that an area ad-measuring 13 hectares and 17 ares, in village
Ijapura within District Mehsana, Gujarat was acquired for an ONGC
installation, for which the notification under Section 4 of the Land
Acquisition Act 1894 was issued on 15.9.1992. The Land
Acquisition Collector determined the fair market value of the land
as of 15.9.1992 at `2.10 per square meter. On a reference sought,
the Reference Court enhanced the compensation by determining
the fair market value at `17.10 per square meter. The reasoning of
the Reference Court was that in the absence of any sale deeds in
the village in question, the only material was Ex.15, being an
award pertaining to a notification dated 6.1.1987 whereunder land
in a neighbouring village named Santhal was assessed to a fair
compensation at the rate of `10 per square meter, as also Ex.16,
which related to another land near the village Ijapura i.e. land in
village Chalsana, of which fair compensation was also assessed at
`10 per square meter pertaining to a notification dated 31.7.1986.
Thus, taking `10 per square meter to be fair market value for the
years 1986 and 1987, since notification being considered was
dated 15.9.1992, the Reference Court increased the value,
cumulatively at the rate of 10% per annum and thereafter reduced
`2 per square meter on account of distance factor between village
Ijapura and other 2 villages, thereby arriving at the figure of `17.10
per square meter. The High Court dismissed the appeal against
the decision of the Reference Court. This is how the matter
reached the Supreme Court.
45. The Supreme Court opined, on the facts of the said
case, that in the absence of any evidence relating to sale
transactions in village Ijapura and having regard to the proximity
of village Santhal with the acquired lands of village Ijapura, it
would be reasonable to determine the market value of lands in
village Ijapura with reference to the value of land in village Santhal
and village Chalsana. Thus, the Supreme Court held that it would
be reasonable to hold that in the year 1987, value of land in village
Ijapura was the same as in village Santhal and this would mean
that as of the year 1987, value of land in village Ijapura was `10
per square meter. The Supreme Court thereafter considered the
second question, as to what should be the percentage increase to
be given per annum and the further question whether the same
should be cumulative i.e. progressive or simple. With reference to
the decisions reported as (1992) 4 SCC 659 Ranjit Singh Vs. UT of
Chandigarh, (2004) 2 SCC 283 Krishi Utpadan Mandi Samiti Vs.
Bipin Kumar and (2005) 9 SCC 594 Land Acquisition Officer and
Revenue Divisional Officer Vs. Ramanjulu, where Courts had
accepted escalation in market value of land at the relevant time
from percentages ranging between 10% to 15% per annum, the
Supreme Court held that one has to be careful with respect to:
Whether the land was comprised in an urban, semi-urban or a rural
area. In para 13 and 14 of its opinion, the Supreme Court
observed as under:-
"13. Primarily, the increase in land prices depends on four
factors: situation of the land, nature of development in
surrounding area, availability of land for development in the
area, and the demand for land in the area. In rural areas,
unless there is any prospect of development in the vicinity,
increase in prices would be slow, steady and gradual, without
any sudden spurts or jumps. On the other hand, in urban or
semi-urban areas, where the development is faster, where
the demand for land is high and where there is construction
activity all around, the escalation in market price is at a
much higher rate, as compared to rural areas. In some
pockets in big cities, due to rapid development and high
demand for land, the escalations in prices have touched even
30% to 50% or more per year, during nineties.
14. On the other extreme, in remote rural area where there
was no chance of any development and hardly and buyers,
the prices stagnated for years or rose marginally at a
nominal rate of 1% or2% per annumn. There is thus a
significant difference in increases in market value of lands in
urban/semi-urban areas and increases in market value of
lands in the rural areas. Therefore, if the increase in market
value in urban/semi-urban areas is about 10% or 15% per
annumn, the corresponding increases in rural areas would at
best be only around half of it, that is, about 5% to 7.5% per
annum. This rule of thumb refers to the general trend in the
ninetites, to be adopted in the absence of clear and specific
evidence relating to increase in prices. Where there are
special reasons for applying a higher rate of increase, or any
specific evidence relating to the actual increase in prices,
then the increase to be applied would depend upon the
same."
46. Thereafter, the Supreme Court noted that the
acquisition in Ranjit Singh‟s case (supra), pertained to lands on
which Sector 41 in the city of Chandigarh was developed i.e. the
land was abutting the urban city of Chandigarh. The land in Bipin
Kumar‟s case (supra) was adjoining the Badaun - Delhi Highway
and was in a semi-urban area and the land which was subject
matter of consideration in Ramanjulu‟s case (supra) pertained to
the 3rd phase development of the existing and established
industrial estate in the urban area. It was in this context that the
Supreme Court expressed an opinion in para 13 and 14 of its
decision, as extracted hereinabove.
47. The observations in para 14 of the decision pertaining
to remote rural areas are equally applicable where the land is such
that there is hardly any chance of any development and hardly any
buyer to purchase the land; and hence prices stagnating.
48. Needless to state, the situation of the land and its
surrounding areas, including availability of land in the area and
demand thereof are the factors which lower prices in rural areas
and these would equally be the factors which would depress price
rise even if the land is in an urban area, but is so placed in the city,
that its potential for development is meager.
49. Marshy lands along river banks, lands in Flood Plain,
prone to flooding, would be in this category, even if it is in an
urban or a semi-urban area.
50. Reverting back to the decision of the Supreme Court in
Ramesh Bhai‟s case (supra), highlighting that for lands where
potentiality was established, a safe thumb rule held applicable by
the Court, could be to increase the market value by 10% to 15%
per annum, but this thumb rule was expressly made subject to a
variation, where peculiar features were available in the form of
evidence to increase the growth up to even 30% per annum or
depress the same to half i.e. 5% to 7.5% per annum.
51. Applying the aforesaid principles, it was observed that
since the subject lands were in a rural area and there was no
development activity in the area for a long period of time,
appropriate escalation per annum should be 7.5% and no more.
52. Stating that the escalations should be at a cumulative
rate i.e. progressively and not at a flat rate, the Supreme Court, in
para 20 and 21 of its opinion, held that commencing with the rate
of `10/- per square meter in the year 1987 and according benefit of
cumulative rate of increase to be 7.5% per year, the price would
rise to `14.35 per square meter in the year 1992 and as against
deducting `2/- on account of distance factor as done by the Court
of Reference and as upheld by the High Court, since the Supreme
Court was applying a lower percentage cumulative rate of
escalation, the deduction effected was `1.35 per square meter and
accordingly the fair market value determined was `13/- per square
meter.
53. With respect to the sale deed dated 17.3.1988 it has to
be highlighted that apart from the reasoning given by the learned
Trial Judge there are good further reasoning to ignore the same
and I have highlighted the same while noting the argument of
Sh.Sanjay Poddar Advocate in para 39 above and since I am
accepting the entire reasoning of the argument I need not re-state
the same as my reasons, but lest I am accused of being a copy cat
and not evidencing that I have independently applied my mind to
the argument I record that a solitary sale transaction would be an
unsafe measure since a solitary swallow does not mean the onset
of Spring and that a solitary tree is no indication that one has
reached the woods. I need not pen down the catena of judgments
penned in this Court by learned Judges wherein a little in excess of
1 bigha of agricultural land was acquired a few days prior or a few
months prior to a proposed acquisition to avail the benefit of an
alternative residential plot in a developed area at a concessional
price as per the Large Scale Acquisition Policy for Agricultural
Lands in Delhi. It assumes importance that under the sale deed 1
bigha and 1 biswa of land was transacted on 17.3.1988. As I have
highlighted herein above, issue of re-development of the river
Yamuna was being considered for a long period of time and there
is every possibility of Sh.Vinod Kumar being a smart man who
knew somebody in the corridors of power and got wind of the
proposed acquisition. I wonder what meaningful agricultural
activity can be carried on by a person on 1 bigha and 1 biswa land?
That apart, as observed by the Supreme Court in the decision
reported as Union of India vs. Ram Phal 2003 (10) SCC 166, while
assessing the value of a large tract of land situated in various
villages a solitary sale transaction of a small parcel of land should
be ignored as it would be unsafe to assess the market value of a
large tract of land based thereon. The law relating to sampling
tells us that for a sample to be representative of the whole it must
be a fair percentage of the whole and not a trifle. I reiterate my
reasoning in paras 47 and 48 above.
54. The question would be whether the percentage
increased worked out by the learned Trial Judge i.e. 12% per
annum on a flat rate with reference to the land price `35,000/- per
bigha as determined in Tindey‟s case (supra), which I note
pertained to a notification dated 10.5.1976 for lands in village
Khizrabad (land being salabi and thus a guidance to me of being in
the flood plain of the river) is correct and whether the same has to
be applied progressively and not at the flat rate.
55. I have already held herein above that the instant lands
are on the Flood Plain, not on the river bed as held by the learned
Reference Court, but the same would make no difference inasmuch
as being on the flood plain of the river, the land is low lying,
shallow, mostly grassland, bushy and with shrub vegetation. The
aquatic vegetation is very poor and the area gets flooded
whenever the monsoon is normal or in excess. The learned
Reference Court has highlighted the topology of the land with
reference to a personal visit and I accept the same. The instant
lands are situationally disadvantaged and are qualitatively
different, being inferior, to other lands in the revenue estate of
village Kilokari and Khizrabad which were acquired earlier on, on
which the colonies of Maharani Bagh, Kalindi Colony and New
Friends Colony were colonized. It is for this reason the decision in
RFA No.117/1974 Smt. Angoori Devi vs. UOI wherein pertaining to
a notification dated 13.11.1959, for land in village Kilokari fair
market value assessed was `26,000/- per bigha cannot be the
basis for fixing the fair market value of the subject lands. I
highlight that pertaining to village Khizrabad, for similar land,
pertaining to a notification dated 10.5.1976, in Tindey‟s case
(supra) fair market value assessed as of said date was `35,000/-
per bigha. The argument of Sh.L.C.Chechi Advocate, noted in
paragraph 42 above (last portion), needs to be dealt with here.
The notification releasing lands are the „River Bed‟ and the „Flood
Plain‟. It is apparent that the authorities as also the Reference
Court have used the expression „River Bed‟ and „Flood Plain‟ as
interchangeable, not realizing that the two are different; and as
explained in para 13 above. The subject lands are „Flood Plain‟
and not „River Bed‟ and as held by me in paras 47 and 48 above,
the consequence of the lands being „Flood Plain‟ have to follow.
56. On the principle of percentage increase as per Bedi
Ram‟s case (supra), relied upon by learned counsel for the land-
owners, wherein progressive increase for various stretches of years
was applied at 6%, 10% and 12% per annum, suffice would it be to
state that the same was on the basis of evidence of such an
increase. I am guided on the issue by the decision of the Supreme
Court in Ramesh Bhai‟s case (supra) wherein the Supreme Court
cautioned the Courts that while applying the thumb rule of
percentage increase in the price of lands, one must not be
oblivious of positive evidence to show a greater price rise or lack of
any evidence of sales, meaning thereby prices being stagnant or
increasing marginally by 1% or 2% per annum and in such cases
pertaining to rural areas the thumb rule being to take the price
increase between 5% to 7.5% per annum. I have already held
herein above that the peculiar features, which are negative in
character, for the instant lands would require the thumb rule
required to be adopted for rural areas as applicable to the instant
lands on the principles I have extracted in Rameshbhai‟s case
(supra). I may highlight that the decision of a learned Single Judge
of this Court in Baldev Singh Dhillon‟s case (supra), which was
relied upon by learned counsel for the appellants, in para 73
thereof, brings out that there is no development potential in the
land save and except to develop it as a green area after
channelizing the river Yamuna and use the same for people to
stroll around and enjoy the cool breeze after toiling hard in the hot
summer; not more than 15% of the area is capable of a meaningful
use.
57. But, I hasten to add that, the futuristic use of a land
after acquisition would not be a basis to infer a fair market value,
which is the mandate of Section 24 of the Land Acquisition Act
1894.
58. Whatever be the percentage increase per annum in the
value of the land, as per the decision in Rameshbhai‟s case (supra)
the same has to be applied in progression.
59. Taking into account all the factors herein above noted,
of fact and of law, in my opinion the fair market value of the
instant subject lands require the same to be fixed with reference to
the decision in Tindey‟s case (supra) by taking the land value at
`35,000/- per bigha as of 10.5.1976 and applying the percentage
increase not at 12% per annum but at 7.5% per annum and
applying the same progressively for a period of 13 years, since the
notification with which I am concerned is dated 23.6.1989, I reach
the figure in sum of `89,614.37 per bigha.
60. The learned Reference Court has determined the
compensation at `89,600/- per bigha by adopting the annual price
rise to be 12% but applying the same at a flat rate to the base rate
of `35,000/- per bigha.
61. But, I have worked out the figure to reach the sum of
`89,614.37 by commencing from the base date 10.5.1976 and
applying the same for a period of 13 years which will take me to
the date 10.5.1989, I am conscious of the fact that the notification
requires me to proceed ahead by another 43 days and therefore
logically requiring to further enhance the sum, but noting that
mathematical precision is not to be achieved while assessing fair
compensation and that if difference between dates is negligible,
the same has to be ignored and thus I bring the curtains down by
according my imprimatur to the price determined by the learned
Reference Court.
62. Pertaining to the cross objections filed by the Union of
India, I note that the challenge was to the learned Trial Judge
holding that land value appreciated by 12% per annum. The
challenge was on the ground that the poor quality, locational and
otherwise, of the land did not warrant said presumption to be
raised.
63. In view of my reasoning hereinabove dealing with the
rival contentions pertaining to the appeals filed by the land
owners, and the conclusions arrived at, the inevitable consequence
has to be, the dismissal of all the cross appeals and cross
objections filed by the Union of India.
64. Thus, all appeals as also the cross objections are
dismissed, leaving the parties to bear their own costs.
(PRADEEP NANDRAJOG)
JUDGE
JUNE 07, 2011
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