1 IN THE COURT OF SH. BHUPESH KUMAR : ADDL. DISTRICT JUDGE : 02 : WEST DISTRICT : DELHI. In the matter of (LAC no. 33/10/08) Smt. [ENTITY] W/o Sh. V.K. Singh R/o 117-B, Village Nawada, School Road, Uttam Nagar, New Delhi. Vs. 1. [ENTITY]. 2. [ENTITY] Through its Chairman, Lodhi Road, New Delhi. Award No. 2/2005-06 Village :- Nawada Majra Hastsal Date of Institution :- 11.03.2008 Date of decision :- 20.04.2011 (Reference under Section 18 of [ACT]) JUDGMENT
1. For the purpose of Mass Rapid Transit System (MRTS) project, the land measuring 4341.90 sq.meter situated at Nawada Majra, Hastsal was acquired on the basis of notification U/[SECTION] of [ACT] dated 16.10.03. The notification U/[SECTION] of [ACT] was issued on 12.11.03. The award dated 10.11.05 was passed by the Ld. Land Acquisition Collector fixing the value of property @ Rs. 7500/- per sq. meter whereas different rates of the superstructure of different claimants were given on the basis of report filed by [ENTITY] duly vetted by PWD. The property bearing plot no. 18A and 19 measuring 210 sq. yards forming part of Khasra no. 510-511 was also acquired under the said award. The petitioner claimed to be owner of the property measuring 210 sq. yards got his petition U/[SECTION] of the [ACT] referred to the Court in respect of the land and superstructure on various ground. The petitioner was using the property for residential cum commercial purpose and was running his business. The petitioner described the compensation amount inadequate and unjustified and prayed for compensation to the tune of Rs. 20,000/- per sq. yards, Rs. 13.0 lac for superstructure, Rs. 2.0 lac for loss of business and goodwill, 30% solatium, 12% additional compensation and 15% interest till the date of payment etc.
2. Respondent UOI and [ENTITY] contested the case and described the compensation amount as justified.
3. On the basis of pleadings of parties following issues were framed on 26.2.09 by my Ld. Predecessor Court :-
1. What was the market value of acquired property in question at the time of issuance of notification U/[SECTION] of [ACT]? OPP.
2. Whether petitioner is entitled for any enhancement, if yes, to what an extent? OPP
3. Whether the present reference is not maintainable being time barred? OPR
4. Relief.
4. The petitioner in support of its case has examined four witnesses. PW1 is Sh. [ENTITY], Asstt. from Commercial Land Branch, DDA. He has brought on record perpetual lease deed dt. 7.10.02 as Ex. PW1/1 and ex. PW1/2 measuring about 260 sq meter for consideration of sum of Rs. 2,35,01,000/- and Rs. 1.92 Crore respectively.
PW2 is Smt. [ENTITY]. She has proved the sale deed Ex. PW2/A and stated to the effect that she has purchased the property of measuring 80 sq yards against a sum of Rs. 6.60 lac.
PW3 is petitioner herself and has lead his evidence by way of affidavit Ex. P-3, wherein she deposed on the similar lines to that of his petition.
PW4 is Sh. [ENTITY]. This witness claimed to be valuer of th property and proved the valuation report as Ex. PW1/5 and site plan as PW4/1. The witness further submitted to the effect that he has valued the property @ Rs. 20,000/- per sq. yards. PE closed.
5. On behalf of UOI evidence copy of award No. 2/DCW/2005-06 of Village Nawada has exhibit R-1. But no witness was examined on behalf of the DDA. RE was closed.
6. I have heard the arguments of ld. Counsel for both parties besides going through the material available on record.
7. My issue-wise findings are as under :
ISSUE no. 1 and 2 are taken up together being intermingled.
ISSUE NO. 1 : What was the market value of acquired property in question at the time of issuance of notification U/[SECTION] of [ACT]? OPP.
ISSUE NO. 2 : Whether petitioner is entitled for any enhancement, if yes, to what an extent? OPP The onus to prove both these issues was on the petitioner. Ld. Counsel for petitioner has submitted that the property which was acquired in this matter was a residence cum shop situated in Bhagwati Garden Colony, KK Commercial Complex, Uttam Nagar. The property was purchased by the petitioner on 17.9.96. At the time of assessing the compensation of the property, the Land Acquisition Collector has not considered the entire aspects, facts and circumstances. The property was considered as agricultural land for the purpose of assessing the compensation, whereas, the property was a residence cum shop where the petitioner was residing and running commercial activities. The petitioner was enjoying the water, electricity, telephone connection etc. installed by concerned Government departments. It was surrounded by well developed colonies. It has been further submitted that during the said relevant period two shops were sold by the DDA vide sale deed Ex.PW1/1 and PW1/2 situated in the same vicinity just across the road at much higher price i.e. for a sum of Rs. 1.92 crore and for Rs. 2.35 crores. Further, in order to substantiate this contention qua the higher prices of the land in the same vicinity at relevant period, the petitioner has examined PW2 Smt. [ENTITY] who had purchased one shop of 80 sq. yards @ Rs. 6.60 lac and proved the sale deed as Ex. PW2/A. It has been further submitted that PW4 [ENTITY] approved valuer has assessed the value of the property @ Rs. 20,000/- per sq. yards and cost of construction @ Rs. 500/- per sq. feet. By relying upon all these documents and submissions it was submitted that the plaintiff has succeeded in bringing on record sufficient material that on the day when the notification U/[SECTION] of [ACT] was issued the price of the property was at much higher rates. Prayer has been made to grant enhanced compensation of acquired land to the petitioner.
On the other hand, Ld. Counsel for UOI as well as of DDA have submitted to the effect that the property was rightly assessed for the purpose of payment of compensation.
8. I have heard the arguments of ld. Counsel for both parties besides going through the material available on record carefully.
One of the main grievance of the Ld. Counsel for petitioner is that despite the fact that the petitioner was running shop / commercial activity from the property in question where the concerned authorities have provided electricity, water and telephone connection etc. since long, Land Acquisition Collector has considered the property as agricultural land and paid less compensation.
On this score, before proceedings ahead for ready reference the relevant portion of [SECTION] of [ACT] is reproduced which is as under :-
24. Matters to be neglected in determining compensation.- But the Court shall not take into consideration
first, the degree of urgency which has lead to the acquisition.
secondly, eighthly, any increase to the value of the land
on account of its being put to any use which is forbidden by law or opposed to public policy.
9. In this matter, the petitioner at any stretch of time has not claimed that the superstructure existing at the spot at the time of acquisition was in accordance with building bye laws or approved sanctioned plan from the concerned authorities. It transpires that the construction over the property in question was illegal and unauthorized.
By plain reading of [SECTION] of [ACT], it reveals that the Court can ignore any increased value of the land if the same is put to use in case it is forbidden by law. Therefore, raising any construction over the agricultural land and using the premises for commercial activity was unauthorized act of the petitioner. Reliance can be made in case [PRECEDENT], Hon'ble Supreme Court has inter alia, hold as under:-
The construction was unauthorized Therefore, the authorities are not bound by such construction. Consequently, the State is not bound to pay compensation of the value of such a building constructed unauthorizedly.
Hence, under these circumstances, the petitioner cannot be awarded compensation at commercial rates on the basis of the fact that the petitioner was running commercial activities from agricultural land.
In case any electricity or telephone connection were installed in the premises by concerned authorities it does not make the act of the petitioner legal as the said authorities have no power to allow the change of the user of land.
10. Ld. Counsel for petitioner has also stressed on the score that the DDA has sold two shops at much higher price vide sale deed Ex. PW1/2 and Ex. PW1/3 on 7.10.02 i.e. during the relevant period when the notification U/[SECTION] of [ACT] was issued in this matter.
On this score it has been contented by Ld. Counsel for respondent that both these shops were sold by the DDA in open public auction. In the open public auction the highest bid is accepted as the auction in open public always goes on higher side. It has been further submitted that the DDA auctioned the shop only after developing the area. The reliance was made in case [PRECEDENT], wherein, Hon'ble Supreme Court has held as under :-
Compensation-DDA brochure giving provisional rates for allotment of plot on lease hold basis, not relevant evidence. Such allotment rates of plots adopted by Development Authorities like DDA cannot form basis for award of compensation for acquisition of undeveloped lands, for several reasons. Firstly, market value has to be determined with reference to large tracts of undeveloped agricultural lands in rural area, whereas allotment rates of development authorities are with reference to small plots developed layout falling within Urbana. Secondly, DDA and other statutory authorities adopt different rates for plot in same area with reference to economic capacity of buyer, making it difficult to ascertain real market value, whereas market value determination for acquisition is uniform and does not depend upon economic status of land loser. Thirdly, this Court is concerned with market value of freehold land, whereas allotment "rates" in DDA brochure refer to initial premium payable on allotment of plots on lease hold basis. Factors elaborated by this Court.
In the light of above judgment it is found that sale of any property in the area developed by DDA cannot be considered at par with the construction raised over the agricultural land unauthorizedly for granting compensation. This aspect also does not help the petitioner.
11. In regard to the sale deed Ex. PW2/A brought on record during the evidence of smt. [ENTITY]. It is found that in the present matter vide award in question 4341.90 sq. meter property was acquired, whereas PW2 Smt. [ENTITY] vide sale deed Ex. PW2/A has purchased only 80 sq. yards. Proportionately the property purchased by PW2 is of very meager area comparing to the property acquired in the matter. The compensation cannot be assessed on the basis of the sale transaction of a very small area. The reliance can be made in case [PRECEDENT], wherein, it was held as under :-
"In determining compensation, the value fetched for small plot of land cannot be applied to lands covering a very large extent. The large area of land cannot possibly fetch a price at the same rate at which small plots are sold."
12. Regarding the property assessed by Government approved valuer as came in the evidence of PW4 [ENTITY], it is found that he has assessed the value @ Rs. 20,000/- per sq. yards. But no reliance can be made on the valuation of the property assessed by the valuer because the notice of the visit of the valuer was not issued to the respondent before inspecting the property. The exparte report was furnished by the valuer. In case [PRECEDENT], it was, inter alia, held as under :-
I am of the view that in this regard, no enhancement is called for. The report is an ex- parte one and no notice was given to the department when the expert inspected the site and determined the market value of the wells and structure.
13. On the score of change and shifting of business, it is found that the petitioner has not brought on record any statement of account/sale transaction etc. of his earlier business, if any running from the acquired property nor the petitioner has brought on record any material to show that he has shifted its business to somewhere else. The details of expenditure incurred by him, if any, while shifting his business were not furnished. Therefore, the contention of Ld. Counsel for petitioner on this score is also without any force. In the light of above discussion it is found that the petitioner has failed to bring on record any cogent material that on the day when notification U/[SECTION] of [ACT] was made, the value of the property was on the higher side to that of the value assessed by the Land Acquisition Collector and that the petitioner is entitled for any such enhancement of value. Accordingly, both these issues stands decided against the petitioner and in favor of the respondents.
14. ISSUE NO. 3 : Whether the present reference is not maintainable being time barred? OPR On this score it is found that the award was made by the Addl. District Magistrate/ LAC (West) on 10.11.05. Whereas the present reference was made on 18.7.06. In view of provisions of [SECTION] [ACT] the reference can be made to the Collector within six weeks from the date of Collector's award if the award is passed in the presence of party or within six weeks from the receipt of notice in case no person was present over there or within six months from the date of collectors award whichever is earlier.
In the present case the award in question dt. 10.11.05 reveals that in response to the notice issued U/[SECTION] and [SECTION] of [ACT] the petitioner alongwith other effected persons have filed objections. Even oral as well as documentary evidence was lead before Land Acquisition Collector which was dealt with at the time of passing of award. It transpires that the petitioner was having knowledge of pendency of proceeding before LAC and it could be safely presumed that the petitioner was having knowledge of passing of award on the day when it was passed. Under these circumstances the contentions of the petitioner that no notice of passing of award was received or that the petitioner came to know about passing of award on 22.4.06 i.e. on day when the petitioner went to office of LAC to enquire about the award is found to be after thought and without any merit. The entire circumstances reveals that the reference was made after the period of limitation of six weeks after the passing of award. In case [PRECEDENT], Hon'ble Supreme Court has, inter alia, hold as follows :-
that it follows that it is the duty of the court to see that the statutory conditions laid down in [SECTION] have been complied with, and it is not debarred from satisfying itself that the reference which it is called upon to hear is a valid reference. The court has, therefore, jurisdiction to decide whether the reference was made beyond the period prescribed by the provisio to [SECTION] of the Act, and if it finds that it was so made, decline to answer reference .
15. In the light of aforesaid discussion it is found that the compensation awarded by Land Acquisition Collector vide award Ex. R-1 was just, adequate and reasonable and the petition is liable to be dismissed. The same stands dismissed accordingly. File be consigned to record room.
([ENTITY]) Addl. District Judge-02 / West District/Delhi (Announced in open court on 20.4.2011)