Delhi High Court
Jai Prakash vs Union Of India & Anr. on 1 February, 2012
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
%
Reserved on: January 12, 2011
Pronounced on: February 01, 2012
+ LA.APP. 115/2011 (VILLAGE BAMNOLI)
JAI PRAKASH ..... Appellant
Through: Mr.B.S.Maan, Mr.Amit Maan, Mr.R.S.Verma,
Mr.Jai Prakash, Ms.Smita Maan and Mr.Jitin
Tewathia, Advocates (R-14-16, 22, 30, 34, 38-
45, 51-53)
Mr.Mohinder Singh Charak, Advocate for
appellant in R-112 and respondent in R-63
Mr.B.D.Sharma, Mr.S.K.Rout,
Mr.B.K.Routray, Mr.Vinay Kumar, Advocates
in (R-84 to 86, 88-102, 104)
Mr.S.K.Rout and Mr.B.K.Routray, Advocates
(in R-74 and for respondent on R-79)
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr.Sanjay Poddar, Senior Advocate with
Mr.Sanjay Pathak, Ms.Navlin Swain,
Ms.K.K.Kiran and Mr.S.N.Pandey, Advocates
for UOI
Mr. Yeeshu Jain, Advocate for UOI (R-1 to 5,
18-37, 47, 49, 50-52, 55-73, 75-81, 113-123
Mr.Arun Birbal, Mr.Bankey Bihari Sharma,
Ms.Amita Singh, Mr.S.K.Sethi and Mr.Kunal
Sharma, Advocates for DDA in (R-74-77 &
80)
Mr.Mohinder Singh Charak, Advocate (R-63
and 112)
AND
LA.APP. 16/2011 LA.APP. 17/2011 LA.APP. 18/2011
LA.APP. 19/2011 LA.APP. 20/2011 LA.APP. 21/2011
LA.APP. 22/2011 LA.APP. 23/2011 LA.APP. 24/2011
LA.APP. 90/2011 LA.APP. 91/2011 LA.APP. 92/2011
LA.APP. 93/2011 LA.APP. 94/2011 LA.APP. 95/2011
LA.App. No. 115/2011 & connected Appeals of Village Bamnoli Page 1 of 15
LA.APP. 115/2011 LA.APP. 133/2011 LA.APP. 166/2011
LA.APP. 167/2011 LA.APP. 168/2011 LA.APP. 170/2011
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LA.APP. 499/2011 LA.APP. 501/2011 LA.APP. 502/2011
LA.APP. 503/2011 LA.APP. 504/2011 LA.APP. 505/2011
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LA.APP. 513/2011 LA.APP. 524/2011 LA.APP. 533/2011
LA.APP. 573/2011 LA.APP. 574/2011 LA.APP. 575/2011
LA.APP. 576/2011 LA.APP. 577/2011 LA.APP. 590/2011
LA.APP. 592/2011 LA.APP. 645/2011 LA.APP. 638/2011
LA.App. 196/2011 LA.App. 278/2011 LA.App. 279/2011
LA.App. 280/2011 LA.App. 281/2011 LA.App. 282/2011
LA.App. 283/2011 LA.App. 284/2011 LA.App. 285/2011
LA.App. 287/2011 LA.App. 288/2011 LA.APP. 184/2011 &
C.M.No. 10953/2011
(Cross-objection)
(Relating to Notification No.9(50)/2004/L&B/LA/13211 of 04.11.2004
issued under Section 4 of the Land Acquisition Act, 1894 & Award No.
1/2007-2008 of 06.08.2008, Village Bamnoli, New Delhi)
LA.App. No. 115/2011 & connected Appeals of Village Bamnoli Page 2 of 15
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
% 01.02.2012
1. Above captioned appeals and cross-objections relate to acquisition
of about 2100 bighas of land in Village Bamnoli, Delhi notified for
Planned Development of Delhi vide Notification of 4th November, 2004
under the Land Acquisition Act, 1894 and since the impugned order of
the Reference Court in these appeals uniformly grants compensation at
the rate of `17,45,000 per acre with statutory benefits, therefore, with
the consent of learned counsel for the parties, who were present at the
final hearing, these matters were heard together and are being
adjudicated upon by this common order.
2. Land Acquisition Collector while relying upon the indicative price
fixed by Government of NCT of Delhi for agricultural land in Delhi for
the period in question, had determined the market value of the acquired
land in question at the aforesaid rate of `15,70,000/- per acre of leveled
land in Block A, whereas for the acquired land excavated beyond one
meter, i.e., Block B land, compensation was determined at the rate of
`14,13,000/- per acre.
3. Not satisfied with the aforesaid Award of Land Acquisition
Collector, before the Reference Court, appellants/claimants had relied
upon Notification of 24th October, 1994 issued by the Municipal
Corporation of Delhi declaring the land in 20 villages including the
instant village to be urbanized. Reliance was also placed upon
Notification of 16th October, 2000 declaring change of land use of the
acquired land in question and thereupon, Delhi Development Authority
had prepared Zonal Development Plan for Dwarka Sub City in Dwarka,
New Delhi.
4. While relying upon seven sale instances (Ex.PW-1/7 to Ex.PW-
1/13) of the year 1999, relating to agricultural land in Village Pochanpur
purchased by a religious society - Radha Swami Satsang, Beas, and
certified copy of Sale Deed of 27th September, 2004 (Ex.PW-1/14) of
Village Bharthal, enhancement in compensation was sought. Reference
Court upon evaluation of the evidence on record concluded that there
was no evidence to the effect that location, potential and utility of the
land in the Villages of Bharthal, Pochanpur and Bamnoli is similar and
had chosen not to rely upon the aforesaid sale instances as the Sale
instance of this very village was available.
5. In the absence of the evidence of the Vendor/Vendee of the
aforesaid sale instances, Reference Court had discarded the aforesaid
sale instances relied upon by the appellants/claimants, while adverting to
paragraph no: 29 of the Apex Court decision in Lal Chand vs. Union of
India and Anr., (2009) 15 SCC 769. Before dealing with the sale
instances (Ex.R-I and Ex.R-II) of Village Bamnoli, Reference Court had
refused to apply Delhi Development Authority auction rate for the
commercial plots or the schedule of market rates for Vasant Vihar by
placing implicit reliance upon the Apex Court decision in Lal Chand
(supra) to hold that market price for the developed land cannot be
applied while determining the market price of the undeveloped
agricultural land in Delhi.
6. To fortify the aforesaid finding, Reference Court has extensively
quoted the passages from the Apex Court decision in Lal Chand (supra)
and thereafter, had proceeded to discard heavily relied upon instance of
allotment of 14.5 acres of the acquired land by Delhi Development
Authority to the Power Department of Government of NCT of Delhi for
construction of 715 Mega Watt Gas Based Power Plant/Project, while
holding as under:-
"77. The allotment of 1.5 hectare of land for a premium of
`297.42 lakh per acre is an inter departmental allotment.
Buyer and seller both are agencies of state. Since no
development/ construction can take place on the land in
question without permission of DDA in view of Section 12
of the Delhi Development Act, 1957 determination of
premium for allotment of land in development area is not an
ordinary sale between a prudent buyer and seller. Premium
of land in such an allotment cannot be called the market
price of land which a prospective buyer of similar land
sitting in his armchair would be willing to pay.
78. Moreover, there is a time gap of three years between
date of Notification under Section 4 of LA Act which is
04.11.2004 and date of allotment which is 25.11.2007.
Market price of land allotted after 3 years of Notification
under Section 4 of LA Act cannot be taken into
consideration for determining market value on the date of
Notification under Section 4. As per Section 24 of LA Act,
the Court shall not take into consideration any increase to
the value of the land acquired likely to accrue from the use
to which it will be put when required."
7. On the aspect of the acquired land being declared urbanized and of
being in the development zone, the pertinent findings returned by the
Reference Court are as under:-
"94. Land of petitioner is agricultural land although it is
in urbanized area and in development zone. The land
continued to be agricultural land even till issuance of
Notification under Section 4 of LA Act in the year 2004
would show that in spite of being in capital of country
having explosive population, no residential colony,
approved or unapproved came up on the land in question
and it would negate possibility of land in question having
potential for building site even in near future.
95. The petitioner has brought no evidence, leave aside
documentary evidence that the acquired land was suitable
for putting up buildings, be they residential or commercial
or industrial as the case may be. There is no building
activity started on the land in question even after passing of
a decade since area was urbanized."
8. On the question of potentiality of the acquired land, Reference
Court has taken note of the fact that this acquired land is surrounded on
all four sides by Villages - Bharthal, Bijwasan, Pochanpur and Dhul
Siras. Noticing that acquired land is in the vicinity of Dwarka, where
DDA is developing colonies and therefore, adoption of the minimum
rates for agricultural land fixed by the Government of Delhi by the Land
Acquisition Collector was not justified. Upon considering the two sale
instances of 25th October, 2004 (Ex.R-1) and of 20th April, 2004 (Ex.R-
2) of this very village, Reference Court had discarded the sale instance
(Ex.R-2) as sale consideration of `9,02,496 per acre was found to be
depressed and had chosen to rely upon the sale instance (Ex.R-1)
depicting sale consideration of `17,45,108 which was found to be
comparable.
9. In the instant appeals, it was vehemently urged on behalf of the
appellants that the effect of Notification of 24th October, 1994 declaring
the acquired lands being fit for urbanization and Notification of 16th
October, 2000 regarding the change of land use under the Master Plan of
Delhi has not been considered by the Reference Court to appreciate the
true potential of the acquired land. Reliance was placed upon decision of
the Apex Court in Special Land Acquisition Officer & Anr vs. M.K.
Rafiq Saheb, (2011) 7 SCC 714, by learned counsel for the appellants to
contend that in view of the aforesaid Notifications, the acquired land
cannot be treated as an agricultural land for determination of its market
value.
10. Aforesaid contention is noticed for being outrightly rejected as the
acquired lands may not to be termed as agricultural land but they were
certainly undeveloped. Government's minimum rates for the agricultural
land applicable to Delhi have been rightly discarded by the Reference
Court. So, reliance placed upon M.K. Rafiq Saheb (supra), is clearly
misplaced, as the Reference Court has determined the market value of
the acquired land while relying upon a sale exemplar of this very village.
11. There is no question of discarding the aforesaid Notifications. In
fact, inspite of the aforesaid Notifications no development activity was
there on the acquired lands as no permission was sought by the owners
of the acquired lands under Delhi Development Act and therefore, it can
be safely concluded that the acquired lands were undeveloped and the
same could not be compared with developed lands for determining the
market value of the acquired land. Thus, reliance placed by appellant's
counsel upon Udho Dass vs. State of Haryana & Ors., 2010 (9) SCALE
41 is of no avail.
12. Rejection of auction rates of Delhi Development Authority, in
Sector 20 and 22 of Dwarka, by the Reference Court, is assailed by
learned counsel for the appellants by contending that the acquired land is
fully comparable with the aforesaid land and is in proximity and
therefore, the market value of the acquired land ought to have been fixed
with reference to the auction rates of the Delhi Development Authority.
Reference Court has not only relied upon the decision of Apex Court in
Lal Chand vs. Union of India and Anr., (2009) 15 SCC 769 but has
extensively quoted relevant passages therefrom to hold that the sale
consideration of the developed lands cannot be applied to the acquired
lands which are undisputedly undeveloped. At the hearing in these
appeals, learned counsel for the appellant could not distinguish the
decision of the Apex Court in Lal Chand (supra), whose ratio squarely
applies to the instant cases. Therefore, I find that the Reference Court
has rightly refused to apply Delhi Development Authority auction rates
for determining the market value of the acquired land.
13. While reiterating the well settled principle of law that comparable
sale instances, are the best piece of evidence to be considered by the
Court for the purpose of determining the compensation, Apex Court in
its recent decision in „Radha Mudaliyar Vs. Special Tahsildar (Land
Acquisition Tamil Nadu Housing Board) (2010) 13 SCC 384 has
observed as under:-
"13. Comparable sales instances are the safest method for
determining the market value of the acquired land and as
laid down in Shaji Kuriakose v. Indian Oil Corpn. Ltd., it
should satisfy the factors, inter alia (1) the sale must be
genuine transaction; (2) the sale deed must have been
executed at the time proximate to the date of issuance of
notification under Section 4 of the Act; (3) the land covered
by the sale must be in the vicinity of the acquired land; (4)
the land covered by the sale must be similar to the acquired
land and (5) size of the plot of the land covered by the sale
be comparable to the acquired land. The sales instances
should preferably be closest to the date of notification as
then alone it would satisfy the touchstone of the principles
contemplated under Section 23 of the Act, as held in
Kanwar Singh vs. Union of India."
14. Fixation of the market value of the acquired land on the basis of
the sale instances (Ex.PW-1/7 to Ex.PW-1/14) of the adjoining villages,
as sought by the appellants stands rightly rejected by the Reference
Court as the sale instances of this very village are available. When it is
so, then there is no need to look for the sale instances of the adjoining
villages.
15. On the aforesaid reasoning, adoption of the L&DO rates to fix the
market value of the acquired lands sought by the appellants is outrightly
rejected. Appellants' counsel had relied upon decision of the Apex
Court in Kiran Tandon vs. Allahabad Development Authority, (2004)
10 SCC 745 and in Valliyammal and Anr vs. Special Tehsildar (Land
Acquisition) and Anr., AIR 2011 SC 2937 to assert that deduction of
40% towards development charges was improper and where large area,
not fully developed, is acquired, normally, deduction of about 33% is
permissible. The need to look for sale instances in the vicinity is
obviated in view of the fact that the sale instances of the instant village
are available and so the requirement of considering the applicability of
the sale instances (Ex.PW-1/7 to Ex.PW-1/14) would arise only when
sale instance (Ex.R-1) is found to be not comparable. Therefore,
reference to the aforesaid decisions by learned counsel for the appellants
is of no consequence.
16. During the course of hearing, learned counsel for the appellants
had strongly relied upon the instance of allotment of 14.5 hectares (37
acres approximately) by Delhi Development Authority to the Power
Department of Delhi Government on leasehold basis at a consideration
of `297.42 lacs per acre with 2.5% annual ground rent to claim
enhancement of compensation at the rate of `40 lacs per acre over and
above the market value fixed by the Reference Court as the allotment of
the aforesaid land was out of the acquired land. With much vehemence,
it was asserted by learned counsel for the appellants that the aforesaid
allotment is clearly comparable and therefore, on its basis the
compensation ought to be enhanced while treating the acquired land to
be at par with the aforesaid land allotted to Power Department of
Government of Delhi.
17. To meet the aforesaid stand of the appellants, it was pointed out
by learned senior counsel for the Respondents that aforesaid allotment
by Delhi Development Authority to Power Department of Government
of Delhi was made in November, 2007 and the possession of the
aforesaid land was handed over to the Power Department of Government
of Delhi in February, 2008 and the acquisition of the land in question is
of November, 2004 and during the intervening period land rates had
steadily increased and therefore, aforesaid allotment cannot be made the
basis to determine the market value of the acquired land as the
intervening gap is of three years.
18. The factors to be considered to determine the market value of the
acquired lands as reiterated by the Apex Court in General Manager, Oil
and Natural Gas Corporation Ltd vs. Rameshbhai Jivanbhai Patel and
Anr, (2008) 14 SCC 745, are 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 the
nineties.
14. On the other extreme, in remote rural areas where
there was no chance of any development and hardly any
buyers, the prices stagnated for years or rose marginally at
a nominal rate of 1% or 2% per annum. 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% to 15% per
annum, 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
nineties, 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.
15. Normally, recourse is taken to the mode of
determining the market value by providing appropriate
escalation over the proved market value of nearby lands in
previous years (as evidenced by sale transactions or
acquisitions), where there is no evidence of any
contemporaneous sale transactions or acquisitions of
comparable lands in the neighbourhood. The said method is
reasonably safe where the relied-on sale transactions/
acquisitions precede the subject acquisition by only a few
years, that is upto four to five years. Beyond that it may be
unsafe, even if it relates to a neighbouring land. What may
be a reliable standard if the gap is only a few years, may
become unsafe and unreliable standard where the gap is
larger. For example, for determining the market value of a
land acquired in 1992, adopting the annual increase
method with reference to a sale or acquisition in 1970 or
1980 may have many pitfalls. This is because, over the
course of years, the "rate" of annual increase may itself
undergo drastic change apart from the likelihood of
occurrence of varying periods of stagnation in prices or
sudden spurts in prices affecting the very standard of
increase."
19. Being mindful of the ratio of the decision of the Apex Court in
ONGC (supra), I find that the instance of institutional allotment
(Ex.PW13/1) of the year 2007 heavily relied upon by the appellants
would not be a useful guide to determine the market value of the land in
question, as the said allotment was made after a period of three years
from the date of acquisition of the land in question. It is so said because
the sale exemplar of the relevant period of this very village in question is
available. Therefore, the aforesaid instance of allotment of land to the
Power Department of Government of Delhi has been rightly rejected by
the Reference Court.
20. Now what is required to be considered is whether the sale instance
(Ex.R-1) relied upon by the Reference Court is a comparable instance or
not. Undisputedly, sale instance (Ex.R-1) is of this very village and is of
October, 2004 whereas the land in question was acquired vide
Notification of November, 2004. Evidently, aforesaid sale instance
(Ex.R-1) is not only relevant but is comparable as it has not been shown
by the appellants as to what are the distinguishing features which would
make it inapplicable to determine the market value of the acquired lands.
Finding of the Reference Court that when the sale instance (Ex.R-1) was
exhibited no objection was raised by the claimants and as per section 51-
A of Land Acquisition Act, 1894, a certified copy of a registered
document is acceptable in evidence and since this document has been
tendered in evidence by the Respondents, the same can be read against
them, remains unimpeachable.
21. However, to meet the aforesaid finding of the Reference Court, it
was submitted by learned counsel for the appellants that opportunity to
lead rebuttal evidence to show that sale instance (Ex.R-1) is not reliable
or bona fide, an application to lead rebuttal evidence was filed before the
Reference Court which was illegally rejected vide order of 25th August,
2010 and therefore, this matter needs to be remanded back to the
Reference Court to enable the appellants to lead rebuttal evidence to
demolish aforesaid sale instance (Ex.R-1).
22. First of all, appellants ought to have objected to the exhibition of
aforesaid sale instance (Ex.R-1). Having not done so, appellants have to
face the legal consequences. Secondly, even if application of the
appellants for leading rebuttal evidence was rejected by the Reference
Court, nothing had stopped them from moving an application for leading
additional evidence in the appeal to lead evidence in order to demolish
the sale instance (Ex.R-1). Not only this, even during the course of
hearing, nothing was urged to show as to how the sale instance (Ex.R-1)
is not genuine/reliable or comparable.
23. In the light of the evidence on record, I am of the considered
opinion that the Reference Court has rightly relied upon the sale instance
(Ex.R-1) to determine the market value of the acquired lands. Finding no
merit in the instant appeals of claimants and cross-objection by one of
them, the same are dismissed while leaving the parties to bear their own
costs.
24. So far as appeals of the Respondents are concerned, I find no
substance in them, because the determination of the market value of the
acquired land by the Reference Court has been done while relying upon
the sale instance (Ex.R-1) produced by the Respondents themselves.
Regarding doing away of the classification of the acquired land into 'A'
block and 'B' Block by the Reference Court is concerned, I find that
this classification has a reasonable basis. That is to say, land with top
soil and the land without top soil cannot be put at par as the market value
of the land without top soil is bound to be lesser than the market value of
the land with top soil.
25. Endorsing the price differentiation between 'A' category land and
'B' category land, my esteemed brother Pradeep Nandrajog, J., in a
recent decision in LA.App. No.266/2008, titled as Jai Singh & Ors. vs.
Union of India & Ors., rendered on 23rd August 2011, while relying on
the decision of the Division Bench of this court in Gajraj Singh vs.
Union of India, 2006 (VI) AD Delhi 13, has held as under:-
"56. In Gajraj Singh‟s case (supra), the price differential
worked out was `25,000/- per acre. I have noted
hereinabove that the acquisition in Gajraj Singh‟s case
pertained to the date 15.11.1996. In Gajraj Singh‟s case the
price for Category „A‟ land determined was `9,76,121/- per
acre and for Category „B‟ land the price determined was
`9,51,121/- per acre and the price differential comes to
about 2.5% with reference to the price of Category „A‟
land.
57. I thus hold that Gajraj Singh‟s case should be my
guiding star for price differential in the instant cases as
well and thus I hold that wherever Category „A‟, Category
„B‟ and Category „C‟ have to be differentiated on price, the
differential should be 2.5%."
26. Consequentially, the finding of the Reference Court regarding the
'A' category and 'B' category land being similarly situated having same
potentiality and because they are acquired for the same public purpose,
cannot be sustained in the light of the aforesaid observations. However,
the claim of the Union of India, to seek adoption of the minimum
indicative price of agricultural land in Delhi while forgetting that the
Appellant - UOI itself has relied upon the sale instance (Ex.R-1), merits
rejection.
27. In view of the afore-going narration, I find that no substance in the
appeals filed by claimants as well as in cross objection of one of the
claimants and the same are dismissed. So far as the appeals filed by
Union of India are concerned, the same are partly allowed to the extent
that the compensation awarded by the Reference Court for the 'B'
category of lands (as noticed in the Award of the Land Acquisition
Collector) is reduced from `17,45,000 per acre to `17,01,375/- per acre.
28. Before parting this order, I would like to bring on record that the
brevity of this order is occasioned by the fact that the impugned
judgment is well considered on facts and the law. Therefore, I have
purposefully not adverted to the entire evidence on record and the
relevant evidence, i.e. of the sale exemplars has been taken into
consideration by me in this order.
29. The above captioned appeals and cross-objection are disposed of
with direction to the Registry to remit the compensation amount, if any,
deposited by either side with the Registrar General of this Court, to the
concerned Reference Court.
(SUNIL GAUR)
JUDGE
February 01, 2012
pkb/rs
