$-52 ' ^ * IN THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved On: lune. 2011 ludoment Delivered On: tune. 2011 + LA.APP.1105/2008 ATTAR SINGH Appellant Through: Mr.L.C.Chech!, Advocate. 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 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? PRADEEP NANDRAIOG. I. For orders see LA.APP. No.59/2007 (PRADEEP NANDRAJOG) JUDGE JUNE 07. 2011 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 rn M.mNim.A M-Tt> ^ /' IN THE HIGtl COURT Of DCLIU AT NEW DCL+II % ludament Reserved On: lune. 2011 tudoment-Delivered On: lune. 2011 LAAPP.NO.59/2007 BED-RAM- Through: Mr.B.P.Gupta, Mr.Deepak Khosla and Mr.L.C.Chechi, Mr.R.B.Singh, Mr.Satish K-Vermaand Mr.Rajesh Gupta, Advocates. Versus UOI & ORS. Through: Respondents Mr.Sanjay Poddar, Standing Counsel (LA), GNCT Delhi with Mr.R.C.Ray, Advocate for R-1. Mr.Ajay Kumar Verma, Standing Counsel DDA. + LA.APP.41/2007 & CM And /2011 (Cross Obiections). 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.89/2009 & LA.APP.1034/2008. CM 11380/2011. LA.APP.1037/2008. 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. APP.251/2011. LA.APP.40/2007. LA.APP.42/2007. LA.APP.43/2007. LA.APP.44/2007. LA APP ?q37?na7. IT/VAPP. 1105/200 LA.APP.335/2008. LA.APP.1104/2008. LA.APP. 1106/2008. LA.APP.1107/2008. LA.APP.64//2U09." 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.816/2Q08. 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 & 1234/20GG. LA..^PP. 1236/2008. CM No.919/2011. LA.APP. 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 & 683/2010, LA.APP.911/2010 & CM 11393/2011,- LA.APP. 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 • V "\ PRADEEP NANDRAIOG. I. 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 Himaiayas and on the way to the piains, 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 Ailahabad. 4. It enters the city of Deihi 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 f ' and the balance 28 km in the rurai stretch. 5. Over the last century the quality of the water in the river has deteriorated due to increased waste water discharge, not oniy within the city of Deihi,, 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 industriai effiuent being discharged into the river water. The eco system supporting migratory avifauna and the ground water has LA.APP.59/2007 & connected Page 3 of 32 I' 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 LA.APP.59/2007 & connected Page 4 of 32 river Yamuna in the National Capital Territory of Delhi, with theIf 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, Okhia, 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 Bhopa! Singh Vs. UP! & Ann (in respect pf village Nangli Rajapur) would be as under:- LA.APP.59/2007 & connected Page 5 of 32 > •vSK nn j_/ f 4 y k- B n yisil^ I\ 1 \ L-to*« ..J^ A-' ^i- V »u n 4 •■■■h ®?s«r. aii^ if- -s: ffi iiH \ \ ,^ = -4 V V 1 ^ ' s, -4 . • \ \ ! Kjtottor .: :V5^:\ ^MV :\ . i.. Vs'g:-; -yn V-kW yrtI' I ; \ I ^\ \ \ \\ t» • : ,i^\ yi LA.APP.59/2007 & connected Page 6 of 32 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 qf officials from DDA (Sh. M.M. Rao, Director L.M.), Sh. S.K. Singh (LAC South), Sh. Raj Shekhar (D.C. South), Sh. AtuI 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 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 bv approximation) prepared bv officials of PDA 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, Okhia, Jasola and Madanpur Khadar. A copy of site plan indicating the khasra no's of village Nanglirazapur has been handed over bv officials of LAC South. The officials explained at" site that some of the f 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 LA.APP.59/2007 & connected Page 8 of 32 commenced at about 2.40 completed at about 4.45 p.m. p.m. and has been 5d- (ANOOP KUMAR MENDIRATTA) ADDL. DISTRICTJUDGE; 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 LA.APP.59/2007 & connected Page 9 of 32 •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. UP! & Ann 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. LA.APP.59/2007 & connected Page 10 of 32 a I- ~2T. Pertaining to the revenue estate-of village Khizratradr- 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 LA.APP.59/2007 & connected Page 11 of 32 ^V) Acquisition Coilector 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 Bhooa! Sinah Vs. UP! & Ann and the same show that the lands are low lying lands LA.APP.59/2007 & connected Page 12 of 32 a'v 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 Tindev & Ors Vs. Union of India & Ann 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 I which was subject matter of consideration in Tindev's case (supra) was saline land {salabD and was acquired for purposes of constructing a pilot cut in the reach from Nizmudding Bridge to LA.APP.59/2007 & connected Page 13 of 32 Okhia Weir. Learned counsel also relied upon the decision reported as Pi wan Ram Swaroop & Ors l/s. 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 highiight that the decision in Diwan Ram Swaroop's case (supra) was the basis on which decision was premised in TindeVs case (supra). In Tindev's case, taking the land value at n2,500/- per bigha as of 3.6.1961 by giving an annual increment of 12% but denying a progressive increase, the sum worked out was f35,000/- per bigha. With reference to the decision reported as Bedi Ram l/s. UO! & Ann 2001 (93) DLT 150 and a decision dated 4.2.2011 disposing of RFA No.582/1994 Ba! Krishan Kapahi Vs. UO! & Ann as also a decision of the Supreme Court reported as Nand Ram 1/5. State of Harvana IT 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 Swarooo'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 LA.APP.59/2007 & connected Page 14 of 32 the decision of the Supreme Court reported as G.Prema l/s. Special TehsUdar (2010) 12 SCC 502 and the decision reported as Om Prakash Vs. State of Harvana & 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 gr^at 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