Deepak Sachdeva vs Union Of India
2011 Latest Caselaw 1637 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+
%                                                  22nd March, 2011

1. L.A.App. 228/2009

DEEPAK SACHDEVA                                              ...... Appellant
                            Through:   Ms. Sukhda Dhamija, Mr. S.K.Rout and
                                       Mr. S.K.Sharma, Advocates


                            VERSUS

UNION OF INDIA                                                 ...... Respondent

Through: Mr. Ramesh Ray, Mr. Ashish Tanwar, Adv. for Mr. Sanjay Poddar, Advocate.

2. L.A.App. 242/2009

ROYAL MARBLES & ORS                                          ...... Appellants

Through: Ms. Sukhda Dhamija, Mr. S.K.Rout and Mr. S.K.Sharma, Advocates

VERSUS

UNION OF INDIA & ANR. ...... Respondents Through: Mr. Ramesh Ray, Mr. Ashish Tanwar, Adv. for Mr. Sanjay Poddar, Advocate.

3. L.A.App. 438/2009

UNION OF INDIA                                     ...... Appellant
                            Through:   None.


                            VERSUS

MR. KULDEEP KOHLI & ANR.                                     ...... Respondents
                     Through:          Ms. Sukhda Dhamija, Mr. S.K.Rout and
                                       Mr. S.K.Sharma, Advocates




 4. L.A.App. 439/2009

UNION OF INDIA                                    ...... Appellant
                            Through:   None.


                            VERSUS

SUPER MARBLE & ORS                                      ...... Respondents

Through: Ms. Sukhda Dhamija, Mr. S.K.Rout and Mr. S.K.Sharma, Advocates

5. L.A.App. 440/2009

UNION OF INDIA ...... Appellant Through: None.

                            VERSUS

R.B.CHARKHA & ANR.                                      ...... Respondents

Through: Ms. Sukhda Dhamija, Mr. S.K.Rout and Mr. S.K.Sharma, Advocates

6. L.A.App. 451/2009

VIRENDER BHUTANI & ANR. ...... Appellants Through: None.

                            VERSUS

UNION OF INDIA & ANR.                                    ...... Respondents

Through: Mr. Ramesh Ray, Mr. Ashish Tanwar, Adv.

for Mr. Sanjay Poddar, Advocate for UOI.

 7. L.A.App. 561/2009

UNION OF INDIA                                    ...... Appellant
                            Through:   None.

                            VERSUS

RAKESH KUMAR BABBAR                                          ...... Respondent
                  Through:             Ms. Sukhda Dhamija, Mr. S.K.Rout and
                                       Mr. S.K.Sharma, Advocates.

8. L.A.App. 575/2009

UNION OF INDIA                                    ...... Appellant
                            Through:   None.

                            VERSUS

M/S LIBERTY TILES & MARBLES                                  ...... Respondent
                      Through:         Ms. Sukhda Dhamija, Mr. S.K.Rout and
                                       Mr. S.K.Sharma, Advocates

9. L.A.App. 20/2010

UNION OF INDIA                                    ...... Appellant
                            Through:   None.

                            VERSUS

UTTAM BUILDERS & ANR.                                        ...... Respondents
                   Through:            Ms. Sukhda Dhamija, Mr. S.K.Rout and
                                       Mr. S.K.Sharma, Advocates

10. L.A.App. 62/2010

UNION OF INDIA                                    ...... Appellant
                            Through:   None.

                            VERSUS

KISHAN LAL & ORS.                                       ...... Respondents

Through: Ms. Sukhda Dhamija, Mr. S.K.Rout and Mr. S.K.Sharma, Advocates

11. L.A.App. 381/2010

N.S.MITTAL ...... Appellant Through: None.

                            VERSUS

UNION OF INDIA & ORS                                    ...... Respondents

Through: Mr. Ramesh Ray, Mr. Ashish Tanwar for Mr. Sanjay Poddar, Advocate for UOI.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

L.A.Appeal Nos.228/2009, 242/2009, 451/2009, 381/2010 (By Land Owners)

L.A.Appeal Nos.438/2009, 439/2009, 440/2009, 561/2009, 575/2009, 20/2010, 62/2010 (By Union of India)

VALMIKI J. MEHTA, J (ORAL)

1. These two sets of first appeals under Section 54 of the Land Acquisition

Act, 1894 (hereinafter referred to as the 'Act') have been preferred against

the impugned judgment and decree dated 16.10.2008 of the Reference

Court of the ADJ under Section 18 of the Act. Whereas the land owners in

their appeals have prayed for higher compensation and also statutory

benefit under Section 34 of the Act, which was denied to them by the

Reference Court, the Union of India in its appeals has prayed for reduction in

the market value of the land determined by the impugned judgment.

Counsel for the parties agree that since the facts and the evidence led in the

cases is more or less identical, the appeals can be disposed of by a common

judgment.

2. A notification under Section 4 of the Act was issued on 5.4.1999 for

acquiring land for construction of the Raja Garden Fly Over. The owners of

these lands are the persons who applied for a reference under Section 18 of

the Act seeking enhancement of compensation and thereafter have filed

these appeals for further enhancement of compensation and other statutory

benefits. The Award in this case was passed by the Land Acquisition Collector

on 24.4.2001 being Award No.1/DCW/2001-2002. The Land Acquisition

Collector granted compensation considering the lands as only being capable

of being used for residential purposes only. By the impugned judgment, the

Reference Court of the ADJ has held that the lands are commercial in nature

and accordingly granted commercial rates for the acquired lands on the

basis of the schedule of rates for commercial premises issued by the Ministry

of Urban Affairs and Development, Department of Urban Ministry (Land

Division) dated 16.4.1999 with respect to lands situated in Ramesh Nagar, a

colony adjacent to and falling behind Rajouri Garden, in which the acquired

lands are situated.

3. In the Reference Court, the land owners examined the witness PW-1

from the office of the Land & Development Office, Government of India,

Nirman Bhawan, and which witness proved the schedule of rates of land in

Delhi dated 16.4.1999. The land owners also led the evidence of the Town

Planner of the Municipal Corporation of Delhi (MCD) to show that shops were

sanctioned on the ground floor of buildings constructed on the lands which

were acquired by the subject notification and the upper floors in the

buildings were residential. The Union of India relied upon various sale deeds

being Ex.R-2 to R-6 with respect to lands falling in village Basai Darapur, a

colony which is situated even behind Ramesh Nagar. By the impugned

judgment, the Reference Court of ADJ has held the land use as commercial in

view of the deposition of PW-2, Town Planner of MCD. The trial court has

also accepted the schedule of rates dated 16.4.1999 for the commercial

rates of Ramesh Nagar, a colony situated just behind Rajouri Garden where

the subject lands are situated.

4. Learned counsel for the appellant sought to argue that the Reference

Court of ADJ ought to have granted commercial rates of West Patel Nagar

and not of Ramesh Nagar. I cannot agree, because admittedly, the area of

West Patel Nagar is situated many kilometers away from the acquired lands

whereas Ramesh Nagar is situated adjacent to and behind Rajouri Garden

where the acquired lands are situated. The other argument of the learned

counsel for the appellant in reply to the grounds of appeal of Union of India

in its appeals for reduction of compensation was that the commercial rates

stated in the schedule of rates dated 16.4.1999, are to be taken only as a

basis/starting point, inasmuch as, the said schedule would contain basically

general average rates and which general average rates are liable to be

modified/increased as per the superior location of a commercial plot/shop,

and, it was contended that since the acquired lands in this case were

situated right on the main Ring Road, the Reference Court of the ADJ has

correctly accepted the commercial rates as specified in the schedule dated

16.4.1999. It was argued that a shop or showroom on the main Ring Road

has a very vantage location and was far more valuable and having more

market value than the general rates of commercial areas in Ramesh Nagar.

It was argued that rates of the subject lands would be at least 50% to 100%

higher than rates of commercial premises in Ramesh Nagar.

5. Unfortunately, the Union of India remained unrepresented by its

counsel in its appeals which were filed by the Union of India. The counsel

who appeared for Union of India only appeared for Union of India as the

respondent in the appeals filed by the land owners. I have waited for the

counsel for the Union of India to argue its appeals right from 2.15 PM,

however, although it is 3.30 PM, the counsel for Union of India, Ms. Deepika,

Advocate has not appeared, I have therefore, perused the record with

respect to the appeals filed by the Union of India. A perusal of the same

shows that the only relevant ground raised in these appeals filed by Union of

India is that the Reference Court of the ADJ has committed an error in

granting the commercial rates with respect to the acquired lands because as

per the evidence of the Town Planner of MCD, led by the land owners

themselves, only the ground floor was commercial and not the upper floors

which were residential.

6. In my opinion, the appeals, both of the land owners and also of the

Union of India, are liable to be dismissed for the reasons set out herein below

except the fact that the appellants-land owners would be entitled to the

statutory benefit under Section 34 of the Act of payment of interest at 15%

after one year from the date of taking possession of the acquired lands and

which has not been granted by the impugned judgment.

7. The trial court has rightly relied upon the deposition of PW-2, Town

Planner of MCD, to hold that the ground floor of the buildings constructed on

the subject lands could be used for commercial purposes. The Union of India

did not file any counter evidence to show that the ground floor could not be

used for commercial purposes. I, therefore, hold that the ground floor of

buildings on the acquired lands could be used for commercial purposes

inasmuch as the plans which were sanctioned for the properties were of

commercial use with respect to the ground floor. That is, however, not the

end of the matter because the ADJ prima facie seems to have erred in

granting commercial rates with respect to the entire lands i.e., for all the

floors inasmuch as the schedule dated 16.4.1999 would only be applicable if

the complete use of all floors is commercial. The question therefore is what

should be the rate which should be awarded for the acquired lands keeping

in view the fact that the ground floor could be used for commercial purposes

and the upper floors were to be used for residential purposes. In my opinion,

the argument of the counsel for the appellants carries weight that the rate

fixed in the schedule of rates dated 16.4.1999 is only indicative of general

commercial rates and in appropriate cases, the said rates are liable to be

enhanced in view of the advantageous location which can be found in the

facts of a particular case. In the facts of the present cases, the commercial

properties situated on the main Ring Road will obviously have more

commercial value than the commercial property which is situated not on the

main Ring Road but somewhere inside in Ramesh Nagar. The rates of

commercial properties in Ramesh Nagar have thus to be enhanced when

applied to the subject lands on main Ring Road as Ramesh Nagar is situated

not on main Ring Road but behind Rajouri Garden and the rates of Ramesh

Nagar can thus apply for the subject acquired lands only by suitably

enhancing the same. Balancing therefore the fact that the appellants have

claimed higher compensation and the Union of India has claimed reduction of

compensation, on the ground that only ground floor could be used for

commercial purpose, I find that in the peculiar facts and circumstances of the

present cases the average commercial rates as found in the circular dated

16.4.1999 of the Ministry of Urban Affairs and Development should be

granted with respect to the acquired lands as a whole.

I must note that every exercise for determining of the market value of

the land is necessarily fraught with certain amount of guess work and it is

indeed very difficult to get perfect exaction for the rates to be determined.

In the facts of the present cases, I am forced to resort to partial intelligent

guess work because no evidence has been led on behalf of either of the

parties, i.e., the Union of India or the land owners as to what should be the

rates of properties where ground floor can be used for commercial purposes

and first floor and above for residential purposes and I have before me only

the circular for commercial rates of Ramesh Nagar which has to be

conditioned by the fact of the prime showroom locations of the subject

properties on the main Ring Road. In my opinion, the ends of justice will be

served in the facts of the present cases by not interfering with the

determination of compensation as arrived at by the Reference Court of ADJ in

the impugned judgment.

8. It is not disputed by the counsel for Union of India/respondent in the

appeals as filed by the land owners, that the Reference Court of ADJ has

erroneously not granted the statutory benefit of 15% interest after one year

of taking possession of the acquired lands in terms of Section 34 of the Act.

The proviso to Section 34 of the Act clearly provides that if compensation is

not paid or deposited within a period of one year from the date on which

possession is taken of the acquired lands, interest at 15% shall be payable

from the date of expiry of the period of one year on the amount of

compensation which has not been paid or deposited before the date of

expiry of such period. I therefore hold that the appellants will be entitled to

statutory benefit of 15% rate of interest in terms of the proviso to Section 34

of the Act.

9. In view of the above, I determine the market value of the lands at

14,490/- per square meter, the rate determined by the reference court. The

appellants will also be entitled to other statutory benefits as granted by the

Reference Court of the ADJ in the impugned judgment. In addition to the

above, and as already stated by me, the appellants /land owners will be

entitled to statutory benefit of the proviso to Section 34 of the Act. Decree

sheet be prepared. Trial court record be sent back.

MARCH 22 , 2011                                       VALMIKI J. MEHTA, J.
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