LA.A.No.173/2007 & batch matters Page 1 of 35 * IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.A No.173 of 2007 with +LA.A. Nos. 164/2007, 165/2007, 166/2007, 167/2007, 168/2007, 169/2007, 170/2007, 172/2007, 175/2007, 177/2007, 178/2007, 179/2007, 180/2007, 181/2007, 182/2007, 183/2007, 184/2007, 186/2007, 187/2007, 189/2007, 190/2007, 192/2007, 193/2007, 200/2007, 203/2007, 204/2007, 205/2007, 206/2007, 207/2007, 209/2007, 210/2007, 211/2007, 213/2007, 224/2007, 233/2007, 272/2007, 278/2007, 281/2007, 294/2007, 375/2007, 1125/2008, 68/2010 and 47/2010. Reserved on : 09.03.2010 Pronounced on: 03.06.2010 IN THE MATTER OF : BHULE RAM ..... Appellant in LAA 173/07 MEENU GULATI ..... Appellant in LAA 164/07 RAMESHWARI DEVI(DECD.)THR’ LRS. ..... Appellants in LAA 165/07 SURESH KUMAR ..... Appellant in LAA 166/07 VIRENDER KUMAR & ORS. ..... Appellants in LAA 167/07 RAMESH KUMAR & ANR. ..... Appellants in LAA 168/07 RAJ KUMARI ..... Appellant in LAA 169/07 MAHENDER SINGH ..... Appellant in LAA 170/07 SHARDA RAM ..... Appellant in LAA 172/07 BISHAMBAR DAYAL AND ORS. ..... Appellants in LAA 175/07 AAMIR SAAD FAROOQI ..... Appellant in LAA 177/07 ZAKIA FAROOQI ..... Appellant in LAA 178/07 MASTER ROHIT ..... Appellant in LAA 179/07 BHIM SINGH ..... Appellant in LAA 180/07 PARASRAM(DECD) THR’ LRS. ..... Appellants in LAA 181/07 RAJESH ..... Appellant in LAA 182/07 RICHPAL(DECD.)THR’ LRS. ..... Appellants in LAA 183/07 MASTER SACHIN ..... Appellant in LAA 184/07 BHIM SINGH ..... Appellant in LAA 186/07 BHULE AND ORS. ..... Appellants in LAA 187/07 MAHENDER SINGH AND ORS. ..... Appellants in LAA 189/07 GODHU(DECD.)THR’ LRS. ..... Appellants in LAA 190/07 CHANDRU AND ORS. ..... Appellants in LAA 192/07 AMI LAL AND ORS. ..... Appellants in LAA 193/07 ASARFI DEVI ..... Appellant in LAA 200/07 SHEORAM ..... Appellant in LAA 203/07 SIRI RAM(DECD.)THR’LRS. & ORS. ..... Appellants in LAA 204/07 DHANNI RAM(DECD.)THR’ LRS.& ORS. ..... Appellants in LAA 205/07 RAM KISHAN AND ORS. ..... Appellants in LAA 206/07 KARAN SINGH AND ORS. ..... Appellants in LAA 207/07 LA.A.No.173/2007 & batch matters Page 2 of 35 DHUM SINGH/DHARAM SINGH AND ORS. ..... Appellants in LAA 209/07 ARJUN SINGH ..... Appellant in LAA 210/07 SURINDER SINGH ..... Appellant in LAA 211/07 O.P.GUPTA ..... Appellant in LAA 213/07 SATISH KUMAR ..... Appellant in LAA 224/07 PURAN MAL BANSAL ..... Appellant in LAA 233/07 HARI CHAND ..... Appellant in LAA 272/07 MOOL CHAND AND ORS. ..... Appellants in LAA 278/07 SHRI CHANDER @ CHANDU ..... Appellant in LAA 281/07 LAXMAN SINGH(DECD)THR’LR & ORS. ..... Appellants in LAA 294/07 SHRI KURE ..... Appellant in LAA 375/07 PARVEEN AKHTAR ..... Appellant in LAA 1125/08 MANO DEVI AND ANR. ..... Appellants in LAA 68/2010 KHEM CHAND(DECD)THR’LR ..... Appellant in LAA 47/2010 Through Mr. Deepak Khosla, Advocate for the appellants in LAA 164/2007, 165/2007, 166/2007, 167/2007, 168/2007, 169/2007, 170/2007, 172/2007, 173/2007, 175/2007, 177/2007, 178/2007, 179/2007, 180/2007, 181/2007, 182/2007, 183/2007, 184/2007, 190/2007, 192/2007, 193/2007, 200/2007, 210/2007, 211/2007, 213/2007, 224/2007, 233/2007, 272/2007, 278/2007, 281/2007, 294/2007, 375/2007, 1125/2008, 68/2010 and 47/2010. Mr. Om Prakash, Advocate for the appellants in LAA 186/2007, 187/2007, 189/2007, 203/2007, 204/2007, 205/2007, 206/2007, 207/2007 and 209/2007. versus UNION OF INDIA & ORS. ….. Respondents Through Mr. Sanjay Poddar, Advocate with Mr.Ramesh Ray, Advocate for the respondent/Union of India. Mr. S.K.Taneja, Sr. Advocate with Mr. Puneet Taneja and Mohd. Asgar Ali, Advocates for respondent/NTPC. CORAM * HON'BLE MS.JUSTICE HIMA KOHLI LA.A.No.173/2007 & batch matters Page 3 of 35 1. Whether Reporters of Local papers may be allowed to see the Judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? HIMA KOHLI, J. 1. This common judgment shall dispose of the appeals filed by the appellants under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as `the Act’), challenging the fixation of market value of the land acquired by the Land Acquisition Collector(LAC) situated in village Aali, pursuant to an Award No.4/1998-99 pronounced on 23.2.1999, after issuance of Notification under Section 4 and 17(1) of the Act on 31.10.1996, which ripened in a Declaration under Section 6 of the Act, issued on 26.2.1997. The total land acquired by the above Award measures 996 bighas and 8 biswas. 2. With the consent of the parties, LA.A No.173 of 2007 is being treated as the lead case. While learned counsel for the appellants, Mr.Deepak Khosla, addressed arguments on behalf of all the appellants, respondent/UOI was represented by Mr.Sanjay Poddar, Advocate, and Mr.S.K. Taneja, Sr. Advocate addressed arguments on behalf of respondent/NTPC. 3. The purpose of acquiring the land was for Planned Development of Delhi, namely, for construction of Ash Pond by respondent/NTPC. Under the Award No.4/1998-99, the market value of the land was fixed by Land Acquisition Collector at Rs.1,94,088/- per bigha, based on the minimum rate LA.A.No.173/2007 & batch matters Page 4 of 35 fixed by the Delhi Government for agricultural land, apart from solatium and other statutory benefits. While assessing the market value of the land in question on 30.10.1996, the LAC observed that there was no previous award in the preceding year, which could be referred to or taken into consideration. He declined to take into consideration two sale deeds of land measuring 1 bigha each, valued at Rs.4,20,000/-, executed in February, 1996 and relied upon by the claimants, on the ground that while the sale deeds were only for 1 bigha each, the acquired land was 1000 times more than that and there was a certain fall in the price when the land is taken in bulk, instead of smaller plots. Instead, the LAC relied on the policy of the Delhi Government dated 25.7.1997 which had fixed the corresponding appreciation of land @ 11.5% p.a. as market value so fixed on 30.5.1990, which was Rs.4,65,000/- per acre. Taking into consideration, the said minimum rate fixed under the aforesaid policy as the best factor to determine the market value, the LAC fixed the market value of the land @ Rs.1,94,088/- per bigha, as payable to the expropriated land owners. 4. Aggrieved by the said determination of market value of the land, the appellants filed a reference petition before the learned Additional District Judge under Section 18 of the Act. Vide judgment and order dated 23.08.2007, the learned Additional District Judge fixed the market value of the acquired land at Rs.1,96,940/- per bigha, apart from granting solatium and other statutory benefits, in terms of the judgment of the Supreme Court in the case of Sunder Vs. UOI reported as DLT 2001 (SC) 569. The said rate of the land was again determined by the learned Additional District Judge on the basis of the minimum rate fixed by the Government for LA.A.No.173/2007 & batch matters Page 5 of 35 agricultural land. But the enhancement in the market value of the land from Rs.1,94,088/- per bigha to Rs.1,96,940/- per bigha took place on account of an error of calculation detected in the assessment made by the LAC, resulting in a difference of Rs.2,852/- per bigha. Dis-satisfied by the judgment and order of the Reference Court, the appellants have filed the present appeals praying inter alia for enhancement of the compensation payable for the acquired land, by fixing the same as Rs.5,00,000/- per bigha (i.e., @ Rs.500/- per sq.yd. or @ Rs.24,00,000/- per acre), besides statutory benefits, including solatium and interest etc. 5. Counsel for the appellants assailed the impugned judgment and submitted that the Reference Court erred in discarding the two sale deeds pertaining to land situated in the same village, which were duly proved on record and were exhibited as Ex.P-1 & P-2. Ex.P-1 is a sale deed dated 28.2.1996 in respect of khasra No.785 measuring 1 bigha, sold for a consideration of Rs.4,90,000/-. Ex.P-2 is a sale deed dated 23.2.1996 in respect of khasra No.815/2 measuring 1 bigha, sold for a consideration of Rs.4,20,000/-. He stated that the vendors and the vendees of the sale deeds were duly examined in the Reference Court and there was no justification for discarding the said documents only for the reason that the sale consideration was paid in cash and when received by the vendors, was not deposited in the bank. He asserted that the sale transactions, subject matter of both the sale deeds were bona fide and were between a willing purchaser and a willing seller and that requisite mutation was also sanctioned pursuant to the sale deeds. It was further submitted that the land subject matter of the two sale deeds was also acquired under the LA.A.No.173/2007 & batch matters Page 6 of 35 instant notification and the instant award and the purchasers of the land under the two sale deeds were claimants before the Reference Court and appellants before this Court, in separate appeals, registered as LA.A. No. 210/2007 and LA.A. No. 211/2007. 6. Mr.Khosla submitted that in case of compulsory acquisition, the sale of similar land in the very same locality is the best evidence and a land owner is entitled to base his claim on the highest value fetched by a sale transaction of similar land in the same locality. It was also stated that the two sale deeds were executed prior to the issuance of the preliminary notification and were the best evidence available. Thus, according to him, there was no reason for the LAC and the Reference Court to have ignored the two sale deeds in question, particularly when the UOI did not produce any other sale transaction of a larger plot in village Aali during the relevant period and nor did the Revenue Authorities have in their power and possession, any other documentary evidence. In support of the said submission, he relied on the following judgments:- (i) Sri Rani M.Vijayalakshmamma Rao Bahadur, Ranee of Vuyyur Vs. The Collector of Madras 1969 Madras Law Journal 45 (para 2) (ii) Union of India Vs. Nand Kishore and others AIR 1982 DELHI 452(DB) (iii) Mani Ram Sharma and etc. vs. Union of India AIR 1986 Delhi 149(DB) (iv) Spl.Tehsildar Land Acquisition, Vishakapatnam Vs. Smt. A.Mangala Gowri AIR 1992 SC 666 (headnote A) (v) Land Acquisition Officer Revenue Divisional Officer, Chittor Vs. L.Kamalamma (Smt) Dead by LRs and others (1998) 2 SCC 385 (headnote b para 6) LA.A.No.173/2007 & batch matters Page 7 of 35 7. It was further canvassed by the counsel for the appellants that the mere distance of 3 Kms. between village Jasola and village Aali itself is not relevant as both the lands are in the same vicinity, and therefore the determination of the market value of the land in village Aali could be based on the prices of the land situated in village Jasola. On this aspect, he referred to the decision of the Supreme Court in the case of Thakarsibhai Devjibhai and others Vs. Executive Engineer, Gujarat and another reported as AIR 2001 SC 2424. He also relied on the topography of the land as reflected from the Eicher Map placed on the record and on the deposition of PW-1, Sh.Ashok Kumar, the Halqa Patwari of village Aali, who had stated that the nature of land in village Jasola and village Aali were similar. It was submitted that the land in village Aali was fairly developed, as the outlet of M/s Haldiram and the NTPC colony existed in the area and the said colony had the facilities of electricity, water, roads etc. Further, the land of village Aali is surrounded by Mohan Co-operative Society, Indraprastha Apollo Hospital, and that Jasola Sports Complex and Jasola Vihar are in close vicinity of the land in question. It was also urged that in a batch of appeals pertaining to village Jasola, lead matter being, RFA No.114/98, S.S. Aggarwal & Ors. vs. UOI decided on 21.2.2003, the Division Bench had fixed the market value of the land in the year 1995 @ Rs.7,390/- per sq.yd. (i.e., Rs.74,00,000/- per bigha) and considering the fact that village Aali and village Jasola are both situated on Mathura Road which is an arterial road leading from Ashram Chowk to Badarpur border and that village Aali is situated only a little further away from village Jasola, the value of the acquired land could not be as low, as determined by the courts below. LA.A.No.173/2007 & batch matters Page 8 of 35 8. Per contra, counsel for the respondent/UOI supported the impugned judgment and submitted that the Reference Court had rightly discarded the two sale deeds(Ex.P-1 & Ex.P-2), as they did not reflect the representative price for fixing the price of a large chunk of land. He further submitted that the sale transactions were not bonafide for the reason that the entire transaction was in cash and the sale deeds were executed more than three years after issuance of the preliminary notification. Support was sought to be drawn from the judgment of the Supreme Court in the case of Land Acquisition Officer vs. Nookala Rajamallu reported as (2003) 12 SCC 334 to urge that the conditions required to be met in order to adopt the price reflected in the Sale Deeds, as laid down in the aforesaid judgment, were not fulfilled. In response to the argument of the counsel for the appellants that reliance could have been placed on the price of land fixed for village Jasola, counsel for the respondent/UOI submitted that no comparison could have been drawn with village Jasola for the reason that the criteria for determining the value of the land is not “contiguity of the land”, but “potentiality of the land” and that value of the land in village Aali could not be compared with village Jasola merely because it was situated some three kilometers away. He argued that the testimony of PW-1 had to be discarded as he failed to produce any document to establish that the nature, use, potentiality and advantages of the land in village Aali could be held comparable to the land situated in village Jasola. 9. Mr.Poddar denied that the land in village Aali was developed, or situated on an arterial road, i.e., Mathura Road. Rather, reference was made to the same Eicher map, to submit that the acquired land was situated LA.A.No.173/2007 & batch matters Page 9 of 35 near the Agra canal, and was at least 3 kilometers away from the main road, that it did not have any infrastructure by way of road, water, electricity or sewage and as was apparent from the two sale deeds produced by the appellants, the acquired land was agricultural in nature. He also referred to a decision in the case of Union of India Vs. Zila Singh reported as (2003) 10 SCC 167 and in the case of Land Acquisition Officer Vs. Nookala Rajamallu reported as (2003) 12 SCC 334 and urged that a small piece of land cannot be compared with a large tract of acquired land. To substantiate his submission that there could be no comparison between the land situated in village Aali and village Jasola and that the appellants had failed to prove that the situation and potentiality of land in both the villages is the same, he relied on the following judgments: (i) Baldev Singh and others Vs. State of Punjab through Collector (1996) 10 SCC 37 (para 2) (ii) Satpal & Ors. Vs. Union of India JT 1997 (8) SC 213 (para 4 to 6) (iii) Kanwar Singh Vs. Union of India (1998) 8 SCC 136 (potentiality of land) (iv) Land Acquisition Officer Vs. Nookala Rajamallu (2003) 12 SCC 334. (v) Raj Devi Vs. UOI (2007) 145 DLT 438 (vi) General Manager, ONGC Ltd. Vs. Rameshbhai Jivanbhai Patel and another (2008) 14 SCC 745 (para 10) 10. Finally, counsel for the respondent/UOI pointed out that there exists another material evidence, by way of a decision of the Division Bench of this Court dated 30.11.2007 in a batch of matters, lead matter being LA.A.No.173/2007 & batch matters Page 10 of 35 LA.A.No.92/2007, entitled “Nirmal Vs. UOI”, which relates to land acquired in the same village, for the same public purpose, and covered under notification dated 16.10.1992, and can be taken into consideration for determining the market value of the land in village Aali. He also submitted that after discussing the very same evidence, the Division Bench had discarded the two sale deeds (Ex.P-1 and P-2) and held that the appellants/landowners therein were entitled to compensation @ Rs.6,51,000/- per acre, with proportionate statutory benefits. 11. Counsel for the respondent No.2/NTPC adopted the arguments addressed by the counsel for the respondent No.1/UOI, and went on to add that in the impugned judgment, mention was made of order dated 21.3.2007 in LAC No.4/06, entitled “Shafiq-ur-Rehman Vs. UOI”, pertaining to the same award, in which case it was observed that 1 bigha of acquired land was purchased by the petitioner therein/Shafiq-ur-Rehman for a consideration of Rs.1 lac by virtue of a sale deed dated 18.12.2005 executed 10 months’ prior to the date of notification issued under Section 4, which showed that the market value of the land was much less than the value assessed by the LAC at Rs.1,94,088/- per bigha. After extracting the aforesaid observations made in LAC No.4/06, the Reference Court observed in the impugned order that the sale deed in question in respect of 1 bigha of land in village Aali reflected that the prevalent market value of the acquired land was much less than what was mentioned in the sale deeds relied upon by the appellants. It was contended by the counsel for the respondent No.2/NTPC that the findings of the Reference Court as above have not been LA.A.No.173/2007 & batch matters Page 11 of 35 assailed by the appellants in the present appeals and hence they are deemed to be accepted as correct. 12. In rebuttal, counsel for the appellants contended that in the case of Nirmal(supra) the Division Bench of this Court did not deal with the two sale deeds in question and made no comments in respect thereof and hence the assumption of the counsel for the respondent/UOI that the two sale deeds were discarded, is misplaced. He strenuously urged that the appellants having adduced evidence by producing sale deeds, had discharged the initial onus placed on them to prove the issues framed by the Reference Court and thereafter, the onus shifted to the respondents, which they had failed to discharge, as they did not place on record any evidence to establish the correct price of the acquired land. With respect to the allegation of the respondent/UOI that the two sale deeds were not bonafide, it was stated by the counsel for the appellants that no material was brought on record by the respondent/UOI to cast any doubt on the sale deeds. 13. It was further stated on behalf of the appellants that it was not as if there were frequent acquisitions of land in village Aali and hence the question of creating or fabricating evidence did not arise. In support of the argument that merely because the two sale deeds in question were too close to the date of issuance of notification was itself not sufficient to reject the said evidence, reference was made to a judgment of the Supreme Court in the case of Mehta Ravindrarai Ajitrai(deceased by L.Rs) and others Vs. State of Gujarat reported as AIR 1989 SC 2051. It was further submitted that fixation of compensation based on mis-declared values in respect of LA.A.No.173/2007 & batch matters Page 12 of 35 transactions to which the claimants are not a party, cannot bind them. Reliance was placed on an order dated 17.2.2009 passed by a Division Bench in WP(C) No.2109/08 entitled “Ajay Kumar Vs. Govt of NCT of Delhi”, to rebut the argument of the respondents that the appellants could not claim the price as fixed for the land situated in village Jasola. Counsel for the appellants stated that as the development was taking place in a phased manner in the area, expansion was being slowly undertaken towards the main Mathura road and that the future potential of the land had to be a matter of consideration while determining the market value of the land in question. He referred to a decision of the Supreme Court in the case of P. Ram Reddy & Anr. Vs. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Ors. reported as (1995) 2 SCC 305 and of this Court in the case of Mani Ram Sharma and etc. Vs. Union of India reported as AIR 1986 Delhi 149, to support the above plea. 14. With respect to the submission made by the counsel for the respondent No.2/NTPC that order dated 21.3.2007 passed by the Reference Court in LAC No.4/06, entitled “Shafiq-ur-Rehman vs. UOI”, was of relevance, counsel for the appellants stated that the rate shown in the sale deed in question was far less than the price fixed for agricultural land in the policy of the Delhi Government dated 25.7.1997 which indicated the minimum price fixed for agricultural land in Delhi. He stated that taking into consideration the policy of the Delhi Government, the LAC had determined the market value of the land in question at Rs.1,94,088/- per bigha at a later date and hence the sale deed dated 18.12.1995 referred to in the case of Shafiq-ur-Rehman, ought to be treated as a case of under valuation. In LA.A.No.173/2007 & batch matters Page 13 of 35 support of the aforesaid submission, he relied on a judgment of the Division Bench of this court dated 21.02.2003 in RFA No.114/1998 entitled “S.S. Aggarwal Vs. UOI”. Reliance was also sought to be placed on a recent decision of the Supreme Court in the case of Subh Ram & Ors. Vs. Haryana State & Anr. reported as 2010 I AD (SC) 619, to state that the aforesaid sale deed dated 18.12.1995 could not have been considered as the LAC had himself assessed the market value of the land at Rs.194 per.sq.yard, which after necessary correction was carried out by the Reference Court, came to a figure of Rs.196 per sq.yard. 15. In his sur-rejoinder, counsel for the respondent No.1/UOI stated that it is apparent from a perusal of the impugned judgment, that the Reference Court had only discussed the sale deed dated 18.12.1995, but had not made it the basis for assessing the market value of the acquired land. On the issue of under valuation, he sought to rely on a decision of the Supreme Court in the case of Lal Chand Vs. Union of India & Anr. reported as 2009 11 Scale 627(para 3) wherein the evidentiary value of undervalued sale deeds in determining the market value was discussed. 16. I have heard the counsels for the parties and have carefully considered their respective submissions, besides the judgments relied upon by both the sides, in the light of the findings returned by the Reference Court. 17. As much emphasis has been laid by the counsel for the appellants on the two sale deeds (Ex.P1 and P2) pertaining to the land situated in village Aali itself, as being important pieces of evidence for LA.A.No.173/2007 & batch matters Page 14 of 35 assessing the market value of the acquired land, the evidentiary value of such documents requires examination. The law mandates that when the State compulsorily deprives a person of his land for public purpose, by invoking the provisions of the Land Acquisition Act, he must be paid compensation in accordance with law, i.e., he must be paid the true market value of the acquired land. It has been held in a catena of decisions, that the market value as postulated in Section 23(1) of the Act, is deemed to be the just and fair compensation for the acquired land and that the words “market value” would be the price of the land prevailing on the date of publication of the preliminary Notification under Section 4(1) of the Act. The acid test for determining the market value of the land is the price, which a willing vendor might reasonably expect to obtain from a willing purchaser. In determining the market value, the factors enumerated in Section 23 are to be taken into consideration, and those set out in