r IN THE inGH COURT OF DELHI + LA APP. No. 252-55/2005 Judgment reserved on ; April 21,2006 % Judgmentdeliveredon : April..^.?.,2006 # Jagdeshwar & Ors ....Appellant ! through: Mr. Deepak Khosla with Mr. LS. Dahiya, Advocates. Versus $ Union of India & Another ....Respondents through; Mr. Sanjay Poddar for LAC. Ms. Pinki Anand & Mr. Sandeep Aggarwal for DSIDC. CORAM: HON'BLE MR. JUSTICE SWATANTER KUMAR HON'BLE MR. JUSTICE S. L. BHAYANA 1. Whether reporters of local paper may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether the judgment should be referred in the Digest? SWATANTER KUMAR, J. For orders see, LA APP. No. 91/2005 SWAT?TOTERKLnVIAR (JUDGE) April27,2006 S.L.BHAYANA ' vk (JUDGE) Digitally Signed By:AMULYA Signing Date:03.02.2024 15:15 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 1/ i c I ' % # T 1. IN THE fflGH COURT OF DELHI LAAPP. No. 91/2005 Judgment reserved on : April 21,2006 Judgmentdeliveredon : April..?;?,2006 Gajraj Singh ....Appellant through; Mr. Deepak Khosla with Mr. I.S. Dahiya, Advocates. Versus Union of India & Another ....Respondents through: Mr. Sanjay Poddar for '' LAC. Ms.Pinki Anand & Mr. Sandeep Aggarwal for DSIDC, AND • ; LAAPP. Nos. 69/2005, 70/2005,71/2005, 72/2005,73/2005, 74/2005,75/2005,76/2005,80/2005,81/2005,82/2005, 83/2005, 84/2005,85/2005,88/2005,89/2005,90/2005, 159/2005,252-55/2005,256-57/05,539/2005,591/2005, 622/2005,674/2005, 675/2005; .677/2005, 415/2003& RFAs. 408/2002 & 580/2003. CORAM: HON'BLE MR. .TUSTICE SWATANTER KUMAR HON'BLE MR. .TUSTICE S. L. BHAYANA Whete reportersoflocal-papermay beallowedto seethe judgment? To be referredto thereporteror not? ' Whe^erthejudgmentshouldbereferredin theDigest? " SWATANTER KUMAR. T. r. The above noticed 30 appeals- have been preferred by the LAAPP. 91/2005 & connected matters Page 1 of 32 , u ..-_J claimants/ownersof the acquiredland againstthe commonjudgmentandorder of the learned Additional District Judge, Delhi dated 30*^ November, 2004 whereinthe Courtheld that the claimantswerenot entitledto any enhancement in compensation awarded by the Land Acquisition Collector vide its award No.22/97-98and answeredthe referencespreferred to that Court under Section 18 oftheLandAcquisiitionAct(hereinafterreferredto astheAct) accordingly. Though we propose to dispose of all the appeals by this common judgmentbutwewouldbereferringto the factsofthecasein GajrajSingh(LA (Appl.) 91/2005).The appellantsclaim to be owners of land measuringabout 170bighas and 2 biswas situatedin khasraNos. 43/13 (4-16),42/14(1-14),16 • ( (4-8), 17 (5-6),23 (2-14,24 (4-16),25(4-16),66/2(94-16),9 (4-16),12(4-16), 19(4-16),22 (4-16),70/2(5-4) asBhumidarin possessionof landin'whichthe appellant had the share as reflected in the revenue record. Notification -under Section4 was issuedon 15"^ November,1996 acquiring940 bighaand 6 biswa of land in the revenue estate of Village'Holambi Kalan. Declaration in furtherancethereto was issued under Section6 of the Act on 21'^ November, 1996. The Collectorissuednotices to the parties and after followingthe due process, divided the land into 2 different categories and vide its award dated 30*^ March, 1998 awarded the compensationto the clamiarits.@Rs.1,86,500/- ! X perbighafor lan'dfallingin categoryAand @Rs.l,61,500/-for the landfalling in categoryB. Dissatisfiedwith this awardofthe Collector,the appellantsand otherland ownershad filed references,which were disposedof by the learned LAAPP. 91/2005 & connected matters Page 2 of 32 Reference Court vide order dated 22"'' December, 2001. The reference Court had enhanced the compensation payable to the claimants @Rs.2,41,452 for V • category A land and @Rs.2,01,452/- for-category B land. The Union of India as well as claimants had filed appeals against the said award. In the case of Chaliu Ram Vs. Union of India & Qrs (RFA No. 522/2002 decided onSOth November, 2003), the Division Bench of this Court had remanded the matter and the Court directed as under " No doubt the claimants were assisted by the lawyers but it ; does not mean that the farmers should not be given afi opportunity to lead the evidence on material aspect. Union of India objected for grant of such an opportunity. It is stated that it would amount to filling the gaps. Looking to the peculiar facts and circumstances of the'case and in order to the complete justice this Court is of the opinion that opportunity should be given to claimants as well as the acquiring authority to lead evidence in this behalf. It is in view of the opinion that we have expressed • hereinabove, the appeals preferred by the clamiants as well as the acquking authority are requked to be disposed of with the direction to the Reference Court to complete the exercise of regarding evidence land deliver fresh award within a period of sixmonths. At the sametimeifthe adjouiTimentsarejsoughtfor and granted by the Reference Court, then the time shall stand "automaticallyextendedto the extent adjournmentis granted. On behalf of the Union of India it was, submitted that they have deposited the amount in the Court in most of the • cases and in some of the cases amount has been withdrawn. We are told^at the claimantswho have withdrawnthe amount,itis on furnishing a bank guarantee. It is in view of this; we dkect that bank guarantees shall stand extended tjll period of six months expires from the date of decisionthat may be made by the Reference Court. It goes without saving that if amount is reducedjby the ReferenceCourt. The claimantswho have taken the money shall have to restitute without'any demur and at the LAAPP. 91/2005 & connected matters Page 3 of 32 same time if there is change in the amount in favour of the claimants, the "amount will have to be paid by the Union of India. In view of what is stated hereinabove, the award made by the Reference Court is set aside with the direction to permit the parties to lead the evidence taking into, consideration the' fresh evidence recorded as well as evidence already there and to decide the reference in accordance withlaw." Upon remand of the case, by the High Court, the Reference Court permitted the parties to lead oral and documentary evidence. From the record, it is apparent that the parties produced some evidence especially-in regard to determination of market value of the acquired land relatable to the agricultural yield of the land in question. However, vide its award dated 30^ November, 2004, the Reference Court, as akeady noticed, declined to enhance any compensation and maintained the compensation awarded by the Land Acquisition Collector, giving rise to the present appeals. Learned counsel appearing for the appellants contended that the impugned judgment of the Reference Court is liable to be set aside as the Court has erred in appreciating tiie evidence produced by the parties on record and has erroneouslyignored the statementof PW-3, PW-4 and PW-5 in, regard to agricultural yield, location, potential and direct evidence, which would justify ( the prayer of the claimants for enhancement of the compensation. It is also seriously contended that while referring to the policy of the Government and the award of the Collector, the ReferenceCourt ignored the material facts that i for the financial year referred to in the award,would end on 31®' March, 1996 LAAPP. 91/2005 & connected matters Page 4 of 32 V- J- / 'V while the Notification in the present case was issued on 15'*' November, 1996 and as such for the period of more than 6 months, the enhancement in value even in terms of policy of the Government should have been granted to the claimants. Besides the fact that Court had not coaectly applied the settled principles of law relating to acquisition of land, the Court has even fallen in f error of fact, which calls for setting aside of the* said judgment and the claunantspray for grant of compensationat the rate of Rs.286 per sq. yard i.e. Rs.lOO/- over and above the compensationawarded by the Collector. In the f prayer clause of appeal, the appellants pray for grant of uniform rate of compensation@Rs.3 lakh per bighainsteadof Rs.l,86,500/-as grantedby the Collector and affirmed by the Reference Court. The Reference Court in terms of order of remand was to consider the evidence led by the parties both prior to and after passing of order of remand. No evidence was admittedlyled by the appellantsby way of sale deeds in relationto acquiredland or even.theadjacentland. The emphasisof the appellantis mainly on Exh. PWl/8, the letter issued by DSIDC to the allottees of the industrial shed in Village Bhorgarh as according to the appellants,the land of this villageis adjacentto the acquiredland and has a directimpact on the developmentand potentialof the acquiredland. In this regard they also relied upon the statements of PWl A.K. Mohani, AG-II, DSIDC, PW-3 ;RAVINDER pal, LDC, Isbr, 'DDA,and PW-4 Hari Om. Patwariof theVillageHolambiKalan. Furtherthey reliedupon Exh. PW-2/A, LAAPP. 91/2005 & connected matters Page 5 of 32 v which is a circular issued by the Ministry of Urban Development to recover premium and ground rent from varous institutions at the rates indicated therein. One of the clairhants Gajraj Singh had been examined as PW-5, who besides producing the khasra girdawari for the year 1991-92 Ex.PW.5/A, stated that he used to cultivate the land till acquisition and was sowing rice and wheat therein. According to hrni, the land was at a distance of about 1-1/2 km. ^' from the DSIDC shed constructed at Bhorgarh and Shahpur Garhi. T^e i respondentdid not lead any oral evidenceeither at the initialor the subsequent stage. They had earlier tendered in evidence Exh. RX-1 to RX-5. In order words, this is the complete evidence of the respondent before the Reference Court. The Court in view of the above evidence is to examine whether the judgmentunder appeal decliningto enhancetlie compensationpayableto ther-s^ clamiantsand affirmingthe award of the Collectoris an order which is fair, equitableand inconformitywith the provisionsof Section23 of the Actor not? In terms of the order of the remand of the High Court, a specific direction was given to the Reference Court to permit the parties to lead evidencewith particularemphasison agriculturalyield and then determinethe fair market value of the acqukedland as on the date of acquisition. Thus, it willbe appropriatetoexaminethis aspectof thecaseat thefirstinstance. VALUATION ON THE BASIS OF AGRICULTURAL YIELD LAAPP. 91/2005 & connected matters Page 6 of 32 i- . f L' Once the order of remand was made by the High Court and the partieshave acceptedthat order, it would primarilylead to one result that the land in question was an agriculturalland at the time of acquisition. PW-5 Gajraj Singh, one of the claimants, in his statement has stated ±at he used to cultivatethelandtill acquisitionand he was sowingrice and wheat and so was the entry recorded in the khasra gnrdawari for the year 1991-92 being EX.PW5/A. In view of this evidenceand theorderof theHigh Courtdated,30*^ November,2003 in RFA 522/2002,it has tobetakenfor allpracticalintentand purposes that the land in questionwas an agriculturalland or was at least an agriculturalland at the time of acquisitionof the land in question.In order to establishtheir claim on the basis of agriculturalyield, the claimantsexamined PW-6 Nirdesh Kumar, who is a residentof VillageHolambiKalan, Delhi for the lastmore than 35 years. He statedthat he owns 1acre ofagriculturalland inVillageHolambi Kalan. The land was stated to be of good quality for agriculturalpurposesandwas irrigatedby-canalwater. He specificallystatedin his examinationin chiefthat he and Gajraj used to cultivatevegetablesin the land i.e. Gobhi,Palak,Maithiand Mooli. In one Kila, theyget the gobhicrop of about300 to 400 molds. Accordingto him, they used to get nearly4crops in a year and would earn approximatelyRs.l lakh from all the crops in one' year after deductingthe expenses. He producedthe paymentsheets issuedby MotherDairy, l elhi to him. One ofthepayment'sheetswas markedas Mark- A-1. In his farther examination in chief he stated as under LAAPP. 91/2005 & connected matters Page 7 of 32 . "In oneyear, we have four crops. Two of Palak, one cauliflower and one radish." Inhis cross-examination,hewas specificallyasked and hedid not deny the suggestionthat he was cultivatingvegetableson the land and such price is determinedby the demandin the market. He also stated in his cross- examinationthat he sells his crops to Mother Dairy and producedmark-A, a computerisedstatementissuedby the Mother Dauy officialsand he had sold 9585kg. ofcauliflowerto motherDairyofficialswith"effectfrom 1 December, 2003 to 7"* December, 2003 at differentrates. Besides mark-A, he did not producedanythingto show tliat what was the sale price ofvegetables. In his cross-examination,he specificallymade astatementthatfor the year 2003, the o* totalproductionofcauHflowerfrom 6bighasofland was 9585kgs. and he had receivedapaymentof Rs.56,671/-,which was given to him by cheque by the' Mother Dairy. Therespondentshadledno evidencein thisregard. The ReferenceCourtrejectedthe entireevidenceproducedby the claimants for two reasons. Firstly that there was no cogent evidence documentson recordto supportthe statementof PW-6 and secondlymark-Ai relatedto to the year 2003 and thus, was inconsequentialor irrelaventas the notificationin question was issued on 15th November, 1996. If was also noticed by the ReferenceCourt that khasra girdawarifor the year 1994-95, 1995-96were nctfiled. Thecontentionofthe claimantsthatthe multiplierof 15-16 or is LAAPP. 91/2005 & connectedmatters Page 8 of 32 1. years should be applied was also rejected by the Reference Court by holding that as the claimants had failed to prove the income from the agricultural produce, the market value of the land could not be determined and declined to interfere in the valuation given by the Collector. It is true that onus to prove main and ancillaryissues for determiningthe fair market value of the acquired land at the time of acquisition wouldlie upon the claimantsbut equallytrue is thatbeforetheReferenceCourttherewas someonus upontherespondentsonce the claimantsdischargedtheprimaryonus placedupon them. The evidencejed in a casehas to be construedwithpervasiveview keepingin mind the class of persons,who are partiesto the lis. Thereis no disputeto the fact that the land in question'is being used for agriculturalpurposes and the claimants,who are small agriculturistsWere not expectedto maintainaudited books of accounts, particularly in the year of 1990. The Court would have to look into the •statement ofPW-5 and PW-6 whilekeepinginmind the fact that they are small agriculturistshaving 1 to 6 acres of land in the entire acquired land, the claimantscouldhave producedwitnessesfrom MotherDairy to prove Mark-A inaccordancewith law but the Courtcannotlose sightof tHe fact that Mark-A is acomputerisedstatementissuedby the MotherDairyand as per statementof PW-6, the paymentswere made by the MotherDairyby cheques. He did give the exactamountof Rs.56,671/- in relationto the paymentmade to him during the year 2003. PW-6 had stated that he did not maintain the accounts. To apply the test of dischargeof onus beyond any reasonabledoubt strictlyto LAAPP. 91/2005 & connected matters Page 9 of 32 o acquisitionmattersmay not meet tlie ends ofjustice. In cases of compulsive acquisition, some amount of guess work is to be done by the Court and somewhatliberalapproachwouldhave to be applied. The statementsofPW-5 and PW-6 was recordedon oath and nothing so divestingcame out in cross- examinationso as to completelydefeat tlieir claim for higher compensation. On the contrary,the case oftherespondentsinevidenceorotherwiseis that the land was being used for agriculturalpurposes. Once this fact is admitted,it may not"be entirelyjustand faur to the claimantsthat statementsof PW-5 an^ PW-6 are disbelieveidby the courtparticularlywhen the,respondentschosenot toleadanydocumentaryor oralevidenceonthis issue. While relying on the statements of PW-5 and PW-6, learned counselappearingfor the appellantarguedtliatwhileapplyingthe multiplierof 15 to the income of the claimants,"tliey would be entitledto compensation @Rs.l5lakhsperacre. Forthispurpose,his submissionis as under:- (a) thereturnoftwo palakcropsin the year -Rs.40,000/- Lessexpenses Rs. 5,000/- • Net Income (b) thereturnofonecauliflowercrop Less expenses Net Income I (c) thereturnofone radishcrop LAAPP.91/2005& connectedmatters - Rs.35,000/- - Rs.50,000/- - Rs." 10,000/- -Rs.40,000/- -Rs.30,000/- Page 10 of 32 less expenses -Rs. 5,000/- Net Income -Rs.25,000 Totalof (a), (b) and(c)is Rs.1,00,000/-and by applyingthemultiplierof 15the same becomes Rs. 15,00,000/-. The learned Reference Court in fact did not refer to the above computationasit heldthattherewas nocogentevidenceto supporttheclaimof the claimants. WhilereferringtothejudgmentofSupremeCourtin the case of . ExecutiveDirector Vs. Sarat Chandra Bisoi &AnQther(2000) 6 SCC 326 the learned ReferenceCourt mentionedthat multiplierof 15 or 16 would be appropriate multiplier but as there was no evidence to determine the annual returnfrom the agriculturalproduceby'theclaimantsas held by the Supreme Courtin the case of State of UP & Another Vs. Raiindra Singh AIR 1996SC 1564, the question of determiningthe compensationon that basis was not possible. In thecase of ExecutiveDirector (supra),theSupremeCourthad '(^, clearlystatedthatone ofthe methodto find outthe annualincomeofthe land, which the ownerhas been derivingoris expectedtoderivefrom the use of the land and capitalisethe same by adoptingamultiplier. The onus to prove such' incomeis on the claimant. The statementof PW-5 and PW-6 in the present case is not worthy of rejectionjust because the completeaccounts were not j produced and particularlywhen they stated that they were not having such LAAPP. 91/2005 & connected matters Page 11 of 32 books of accounts. Not to maintain books of accounts for such agricultural holdings is neither unusual nor an unexpected conduct of a normal human being. In our view, the learned reference Court was not entirely right in completely rejecting the entire evidence led by tliese two witnesses in regard to •agricultural produce and the return therefrom. In the case of The State of Gujarat & Ors. Vs. Rama Rana & Ors IT 1997 (1) SC 444, the Supreme Court stated the principlesthat Court shouldexamineoral evidenceof tlie claimantcarefullyapplyingtest of normal pmdentman. The Courtcan even accept the oral statementof Sarpanch and applythemultiplierof 10years. TheSupreme Courtheld as under "5. It is undoubtedlytme that one of the methods of determinationof compensation,in the absenceof best evidence, namely, sale deeds, is the realised value of the crop. Normally,they shouldhave producedthe statistics from the Agricultural Department as to the nature of the ' crops and the prices prevailing at that time. But unfortunately, neither claimants nor the Government took any -steps to adduce that best evidence. It is a fact that tlie Governmenthave failed to adduce any evidencein thatbehalf. However,wecannotrejecttheoral evidence of the witnesses on that ground alone. The court has statutory duty to the society to subject the oral evidence to great scrutiny, applying the test of normal man, i.e, whetherhe would be willingto purchasethe land at the rates proposed by the Court. On the touch stone of this, the Court should evaluate the evidenceobjectivelyand dispassionatelyand reach a finding on compensation. The reference Court has accepted the evidence of the Sarpanch to be the reliable person. Therefore, , we proceed on that premise. The appropriate multiplier shouldbeof 10 years as settledby severaljudgmentsof this Court. Necessarily,50% of the net value towards cultivationexpensesrequiresto be deducted. The award •LAAPP. 91/2005 & connected matters Page 12 of 32 ,.j ' -I y of the reference Court as confirmed by the High Court stands set aside and the value of the crop as determined by the reference Court at Rs.2,050/- as average annual income stands upheld. Multiplier of 10 years should be applied and deduction of 50% towards cultivation expenses should be made. After giving deduction, the balance will be the net value of the land. On that basis, the claimants are entitled to Rs.20,500/- per acre with solatium @30% on enhanced compensation and interest on enhanced compensation @0.9% per annum for one year from the date of taking possession and 15% per annum till date of deposit into the court under the Act as amended by Act 68 of 1984, namely 30% solatium on the enhanced compensation, interest on the-''enhanced compensation, interest on the enhanced compensation from the date of taking possession for one year at 9% and ^ thereafter at 15% till date of deposit." • From the above judgment, it is clear that some reasonable amount has to be deducted on account of expenses in relation to maintenance of the land, transportation of agricultural produce and other incidental expenses, which a grower is bound to incur. In different cases, multiplier of different years have been applied by the Court right from 8 years to 18 years. Reasonableness in computation and nature of the land with its potential are the basis for determination of just fan: market value of the land. PW-5 and PW-6 have stated that they were not maintaining regular accounts. Thus, for this reason, their statement on oath cannot be entirely discarded by the Court nor can they take undue advantage of non-productionof books. Agricultural producehas to be computedon the basis of the statementmade by PW-5 & PW-6. Accordingto them they are havinga returnfrom agriculturalproduceof nearly Rs. 1,20, )00per year and they only incur the expenses of Rs.17,500/-on LAAPP. 91/2005 & connected matters Page 13 of 32 (]T O i i: !•! " all the four crops.This figurebeinglittleonthelowersideand keepingin view thefact the farmer wouldincur expenditureon seeds,maintenanceof fields and ?• crops,lookingafterthe crop, transportationetc. for the four crops, anothersum of Rs.5,000/- can safely be added. Thus giving gross return of nearly 95,000/- annually,applyinga multiplierof 10years in terms of the abovejudgment.The value of the land on the basis of agricultural yield would come to Rs.9,50,000/- per acre. SALE DEEDS ' • I # It is not possible for the Court to apply the most appropriate method for computing the fair market value of the land on the date of acquisition/issuance of notification under Section 4 by way of sale deeds because the-present case is a case of no evidence under this head. As far as petitioners are concerned, despite grant of two opportunities i.e. before passing of the first judgment by the Reference Court and"then after the order of remand by the High Court, they produced no sale deeds. The respondents had only placed on record Exh. RX-1 to Exh,.RX-5 i.e. copies of the sale deeds in relation to sale of the land in Village Holambi Kalan, which are inconsequential , inasmuch as the Collector had already awarded compensation higher than the rates indicated in those .sale deeds. The Union of India is not aggrieved and in any case as per provisions of Section 25 , the Reference Court or this Court would have no jurisdiction to reduce the amount awarded by the Collector to acquisition proceedings. Thus, no detailed discussion on 7' the claimants in land LAAPP. 91/2005 & connected matters Page 14 of 32 i- this issue is called for. LOCATION, POTENTIONAL & COMPARIBILITY OF THE ; ACQUIRED LAND WITH SURROUNDING LAND There cannot be any dispute to the legal'proposition that in the absence of direct evidence by way of sale deeds relating to the acquired land itself, the Court may refer to the evidence by way of sale deeds or other documentsotherwiseadmissiblein evidencein regard to the surroundinglands to the acquired land. Criteria for determining fair mttet value of the land, thus, has to be decided on the basis of comparable instances of sale or other evidence,which wouldprovidea correctperceptfor the Courtin arrivingatjust and fair market value of the acquired land at the time of acquisition. The evidenceproducedbefore the Court,therefore,must consist of comparableand relevant documentary evidence and oral evidence, which otherwise would relate itself to tlie various factors enumerated in the provisions of Section 23(1). In the award of the Collector it was noticed that the claimants had claimed exorbitant prices of land but had led no evidence in support of their claims. While relying upon the policy announced by the Govt. of NCT of Delhi, price ' of agricultural land was fixed @Rs.lO lakhs per acre for acquisition of agricultural land w.e.f. 1" April, 1997. This price was earlier stated to be Rs.4.65 lakhs per acre with effectfrom 21^ April,1990. As further noticedin the award, the two classes of land under BlockA and Block B were based upon the reasoning that Block-A was agricultural land and was being used for LAAPP. 91/2005 & connected matters Page 15 of 32 c(y\ i agriculture while Block-B land was where the quality of land was not so good and there were Gadhas and Bhatta Ground and in that area earth has been taken out for making bricks. Even in the award also it was specifically recorded that at the timeof takingoverpossessionof thelandon 26^June, 1997,Kharifcrop was standing on the vacant land and possession was taken with crops. Compensation for crop was not given as according to the field staff the crop was harvested by the interested persons and there was no need to give the * ' y compensation for the crops in the award. In other words, this best evidence •i was available with the respondent and for the reasons best known to the respondent, no evidence was produced before the Court. PW-1 A.K. Mohani had produced"original record before the Court and had stated that industrial plots were allottedto various persons and a plot measuringabout 350 sq.mtr. was offered to one Balluram @Rs:650/-per sq.mtr. Photocopy of the offered land was exhibited on record as Ex.PWl/A. He conceded that he was not aware whether development charges were included in the said rate. The land was situatedin VillageBhorgarh. However,he didnotknowhowthepricewas calculatedand