$-4 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 15t /une, 2011 Judgment Delivered On: 71h 1une, 2011 + LA.APP.60/2007 • DHARAM PAL (D) THRU LRs .....AppelIants Through: Mr.B.P.Gupta and Mr.Rajesh Gupta, Advocates. Versus • UNION OF INDIA &ANR. Respondents Through: Mr.Sanjay Poddar, Advocate Mr.Ramesh Ray, Advocate and • Mr.Ashish Tanwar, Advocate for UOI. • Mr.Ajay Verma, Advocate for DDA. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG Whether the Reporters of local papers may be allowed to see the judgment? To be referred to Reporter or not? • 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. For orders see LA.APP. No.59/2007 (PRADEEfU AG JUNE 07, 2011 FDRAJOG). -. dk Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified S • * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved On: 1" IL/ne, 2011 Judgment Delivered On: 70 IL/ne, 2011 LAAPP.NO.59/2007 BED RAM Appeftant Through: Mr.B.P.Gupta,, Mr.Deepak Khosla and M r. L .'C. C he c hi, M r .R. B . Si n g h, M r.5 at I s h K.Verma and Mr.Rajesh Gupta, Advocates. Versus UO& ORS. Respdndents Through: Mr.Sanjay Poddar, Stnding Counsel (LA), GNCT Delhi with Mr.R.C.Ray, Ad\focate forR-1. Mr.Ajay Kumar Verma, Standing Counsel DDA. +LA.APP.41/2007 And & CM 12011 (Cross Obiections), LA.APP. • 5812007 & CM 3856/2011, LA.APP.60/2007, LA.APP.61/2007, LA.APP.6212007,. LA.APP.63/2007 & CM 11398/2011J LA.APP.6412007 •& CM No942/2011, 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 L 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 9964/2011L LA.APPJ55/2011, LA.APP.156/2011 & CM 11360/2011, LA.APP.59/2007 & connected Page 1 of 32 LA.AP.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. 1 1D4/2008, LA.APPJ105/2008, LA.APP.1106/2008, LA.APP.1107/2008, LA.APP.647/2009, LA.APP.650/2009, LA.APP.3.1112010, LA.APP.314/2010, 0 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 NoJ4141/2008, LA.APP.609/2008, 0 LA.APP.631/2008, LA.APP.737/2008, LA.APP.739/2008 & CM No.1548/2011, LA.APP.816/2008, 0 LA.APP.817/20080, 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.996/200 & CM No.1035/2009, LA.APP. 1016/2008, LA.APP, 1035/2008, LA.APP 1036/2008, LAAPP. 1039/2008, LA.APP, 1041/2008, LA.APP. 1102/2008, LA.APP. 1136/2008, LAAPPJ204/2008 & 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.551/209 & CM N0.11383/2011, LA.APP. No.576/2009 & CM • OS 11386/2011, LA.APP. 58012009, 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 1137312011, LA.APP.678/2010 & CM 11395/2011, LA.APP. • 679/2010, LA.APP.68o/2o10 & 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.946/20 10, LA.APP. 947/2010, LA.APP 949/2010, •LA.APP. 0 O 951/2010 LA.A.PP. 952/2010, LA.APP. 140/2011 & LA.APP560/2009 0 O CORAM: 0 HONIBOLEMR. JUSTICE PRADEEP NANDRAJOG 1. Whether the Reporters of local papers may be allowed to see the judgment? 0 S O 2. To be referred to Reporter or not? . 3 Whether the judgment should be reported in the Digest? LA.APP.59/2007 & donnected • 0 • Page Z of 32 2° PRADEEP NAN DJOG, 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. The instant decision decides aforenoted appeals and cross objections in such appeals where cioss obiections are filed The river Yamuna s not only an important feature of the city of Delhi, but is also a majorsouice of water supply to the city. It draws its water, from the Yamunotri Glacier in the upper reachesof the Himalayas and on the way to the plains, is enriched by the river Tons and needless to state, numerous, streams and . rivulets enrichthe river in its onward journey. It travels a distance of abbut 400 km in the plains before joining river Ganga at Allahabad. It enters the city of Delhi from the North and flovv 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. S. Over the last century the quality of the water in the river has deteriorated due to increased waste water discharge, not only within thecity 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 apid indstrialization has resulted in • industrial effluent being discharged into the river water. The ceo- system supporting migratory, avifauna and the ground water has LA.APP.59/2007 & connected •1 21, continuously degraded, requiring immediate attention for conservation. Various plans to harness the potential of the river have been discussed since early 1980 with reference to the navigational potntial of the river; the aesthetics of the river and requirement of it being blended with the city of Delhi, as is the rivet: 'Thames' in England and the river 'Seine' in France. Bodies such as the Ministry of Environment and Forests', 'Central Water Power Researcft Station' and 'National Environmental Engineering Research Institute' have been suggesting remedial measures in various reports submitted from time to time; propoing 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. 2 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, channelizatioti of river Yamuna has been proposed, not only for the purposes of flood control but even drainage improvement and reduction in bnk 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 DelhL Development Authority, which is • accused by many of having created urban chaos in Dcliii, had evolved the 'Environmental Management Plan' for the stretch of LA.APP.59/2007 & connected • • • • Page 4 of 32 0 . / I . river Yamuna in the National Capital Territory of Delhi, with the 22 overall objective of rejuvenatipg 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' Briefly, the report delineates guidelines f o r development of river Yamuna as it flows in the city of Delhi by dividing the same into various stretches. One such stretch is between the ITO Barrage till the ILFS-NOIA 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 The stretch with which we are doncernedin the instant Land Acquisition ApeaIs, is the stretch of the river as ft crosses NH-.24 (at the popular bridge called the Nizamuddin Budge over the river Yamuna) and proceeds towards the South, crossing lands of village Behlolpur Khadar, Kulokari, Khuzrabad, jogabau Okhla jasola and Madanpur Khadar, all of which lie on the Western bank of the river and Nangli R.ajapur and Chuck Chilla, which lie on the Eastern bank of the river. Gaphically reproduce.d the plan prepared by the learned Reference Court on insFJCtiofl carried on 21.11.2006, and to be found in the record of LAC 'No.2/1998 B/7opa/ S!ncjh Vs; UO/ & Anr. (in respect of village Nangli Rajapur) \Nould be as under:- S I LA.APP.59/2007 & connected Page 5 of32 - )?('7? (I 0 'River he 13 Bed' is defined as the area over which rivei flows and denotes the area which, in the ordinary or regular couie of nature, is covered by the':waters of the river. 'Flood Plain' is the land adjacent to a river, which because of its le\/el topography, floods when the river oveflows. The lands which are subject matter of acquisition in the instant appeals, lie in the Flood Plin area of river Yamuna, and mostly in the Western bank and except for a few patches wheie agricultural, activities can be undertaken, the land is :rnostly grassland, bushy and shrub vegetation. The aquatic vegetation is very poor in this stretch due to degraded. 'water quality of river Yarnuna. The lands are comprised in the rvenue, estaLe of village Kilokari, Khizrabad and Nangli Rajapur. , Flood discharge and levels, at different gauging stations in river Yamuna, indicate flooding of the area whenever monsoon is normal or in excess As Would be 'evident from the plan of the area prepared by the learned Reference Court, and as extracted .herein'abo\/e 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 repQrt dated 22.11.2006, rle\/ant 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 Shekha.r (D.C. South), Sh. Atül Kumar (Ex. Engineer, Irrigation & Flood Control Department) who are accompanied with other team of officials from LA.APP.59/2007 & connected . Page 7 of 32 S EJ respective departments. . Counsel for the petitioners as. 2,5 well as respondents are also present. The officials led to embankment of River YamuiHa in village Nangli Rajapur via Marginal Bund Road through 'Pantoon Road'. A rough sketch (i.e. Site plan by aprrpximation) prepared by officials of DDA to give a broad idea of the location, of villages has beenhanded 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 viHage 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 differnt shades in the site plan (Annexure ID. The officials informed that the acquired S . land extended upto 500 metres and may be more from the stream of w,ter which was flowing currently. The land on bOth sides at the 'site spot' appeared to be 2 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 1 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 Anne;xure - I). It was observed that there was no substantial developmenL except that land appears to be utilized near the site for' S. agricultural purpose; .. . Thereafter the officials led to show the approximate location of', land of village Kilokari, Behlolpur and S Kh'izrabad 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 a.gricultural activity. The spot inspection LA.APP.59/2007 & connected '. Page 8 of 32 4 commenced at about 2.40 p.m. and has \ been comleted at about 4.45 p.m. Sd- (ANOOF KU MAR M EN DIRATTA) ADDL. DISTRICT JUDGE: DELHI 22.11.2006" 18. lt may be hihliQhted that the Forward Bund, as the very name suggests, is the raised embankment to ontain the flooded river as and when it oveiflows, so that the city of Delhi is not in6ndated with water, during monoon. It is obvious that due to this, thre 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 Hectaresof land starting from a point 1 km. upstream, •Wazirabad Barrage road till it outs the boundary of Union Territory was proposed to be accluired 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. Consideringthe sitUation of the land inthe 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 pwing LA.APP.59/2007 & connected Page 9 of 32 S . !1 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. Thevalue of land as such needs to be assessedby this Court considering the aforesaid factors." 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. . . By virtue of a notification dated 23.6.1989 issued under Section 4 of the Land Acquisition Act 1894, .a \/ast track of land d-' measuring 3500 hectaes 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 leai ned Judge and as extracted hereinabove in para 17, were the ones which were proposed to be acquired. • The notificatiOn in question , was followed by a declaation issued . under Section 6 . of the Land Acquisition Act 1894 on 22.06.1990 wherein the area and the Khasra number in •eact village in respect whereof the notification was issued were detailed. LAAPP.5.9/2007 & connected Page 10 of 32 22 Pertaining to the revenue estate of village Khizrabacl, subject matter of the present appeals, the Land Acquisition Collector announced. an Avard 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. 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 While as.essing 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 ofthe land would come to 18,736/- per biha. But, noting that \/ide Office Order dated 3 5 1990 the Government of Delhi had notified the minimum price of agricultural land in the Union Teiiitoiy of Delhi having 2 rates 4,50,000/- per acre for agricultuial lnnds and 1,50,000/- per acre for land situated in the river bed, since the notification under Section 4with which he was concerned was dated 236.198, depressed, by discounting the price by 15% per , annum and concluded by holding that the pair 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 LA.APP.59/2007 & connected . . Page ii of 32 El 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 refer red 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 mai ket price at 89,600/- per bigha for the acquired lands 27r I note that the reasoning of the learned ReFerence Court is pari-materia in each order. 28 The record of the learned Reference CouiL shows Lhat 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 paities who chose to be present at the inspection and in the presence of the represehtative 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 S/nqh Vs. UO/ & Anr. and the same show that the lands are, low lying lands LA;APP59/2007& connected . . . . Page 12 of 32 S 's and are, as described by the learned judge in the report which I have extracted in para 17 hereinabove 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.59/2 Q07 as the lead matter, it would be' relevant to note that the appellant theeof Bed Ram, appeared in the witness box as PW-7 before the Reference Court, and admitted in his cross- examination that except 'for a petrel punp and the two shops, there is no abadi around the land It is also admitted that theie is a haa/a (drain) in village Kilokh. He admitted that since construction was not allowed, by the Government, no other construction could come up. Various douments were proved before the learned Reference . Court by various parties and find a mention in the varidus orders passed by the learned Reference Court, but I need not note the same because, before me whiiC arguing the appeals learned counsel for, the parties pressed into aid only one sale deed dted17.3.1988 Ex.PW-3/1 in the referencè.sOught by Bed Ram. Besides, learned counsel relied upon the decision reported as T/ndey & Ors Vs. Un/On of/nd/a & Anr. 2000 (54) DRJ 384 (DB), wherein a Division Bench'of this'Court assessed,the make't value for the land situate' in village l(hizrabad 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 T/ndes case (supra) was saline land (saIabi) and was acquired fon purposes of constructing a pilot cut in the reach from Nizrnudding Bridge to LA.APP.59/2007 & connected ' ' Page 13 of 32 Okhla Weir. Learned counsel also relied upon the deision reported as Diwan Rain Swaroop & Ors Vs. Un/on of/nd/a 1992 (48) DLT 600 perusal whereof shows that the land situate in village Khizrbad was acquired pursuant to a notificatLon dated 03.06.1961 and was assessed at12,500I- per bigha. • 32. 1 may hihlight that the decision in Diwan Rain Swaroo1o's case (supra) was the basis on which decision was premised in T/ndej/s, case (supra). In T/ndey's case, taking the land value at 12;50.0/- per bigha as of 3.6.1961 by giving an nnual increment of 12% but denying a progressive increase, the sum worked out was 35,000/ per bigha. With reference to the decision reported as Bed/ Rain Vs. .UO/ & Anr 2001 (93) DLI 150 and a deciion dated 4.2.2011 disposing of RFA No.582/1994 J/ Krtshan Kapahi Vs. UO/ & Anr, as. also a decision of the Suprern Court . reporte.d as A/and Rain Vs State of Haryana JI 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 Bed/ Ram's case, initial increase could be @ 6% per annum followed by 10% per apnum and then 12% per annum, with the cut off years 'being 1959-1965 (6%), 1966-1973 (10%)an'd 1974 onwards (12%). 33 . . Pressing:the.first..argurnent 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 upoi LA.APP.59/2007 & connected Page 14 of 32 I S S 'SI the decision of the Supreme Court reported as G.Pref77a Vs. Spec/al Tehs/ldar (2010) 12 5CC 502 alid the decision reported as Q Prakash Vs. State of Haryna & 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 [he faii market value of the acquired lands. Relying upon the.testimony of 'Devi Ram PW-6 in the reference pertaining to Bed Ram, the Patvvari 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 acquiied lands DDA had developed the residential, colonies named 'Fhends ' Colony', 'Kalindi Colony' and 'Maharani Bagh' It was thus urged that the area in question had great potentiality, the same being a reflection of the3 colonies having come up On the earlier acquired lands. 'Pertaining to the sale deed dated "17.3.1988, ExP\Af-3/1,' referred to by me hereinabove, it was argued that the