Hem Chander Malik v. U.O.I & Ors

ORDER

26.09.2011 For orders, see LA.App.No.358/2007. SEPTEMBER 26, 2011 mm PRADEEP NANDRAJOG. J. 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. * IN THE HIGH COURT OF DELHI AT NEW DELHI fD % ludament Reserved On: August 2011 ludament Delivered 0n:2&'' September. 2011 + LA.APP. 358/2007 HEM.CHANDER MALIK Appellant Through: Mr. J.V. Rana, Mr.Deepak Khosia, Mr.S.K.Yadav, Mr.S.K.Verma, Advocates • : Vs. , UOI & OTHERS ... Respondents Through: Mr.Sanjay Poddar, Senior Advocate & Mr.Sanjay Kumar Rathak, Mr.Sachin Nawani, Mr.Siddharth Panda Ms.K Kaomudi Kiran, Advocates for R-1. + LA.APP. 62/2004, LA.APP. 136/2004, LA.APP. 166/2004, RFA 422/2001, RFA 304/2002, RFA 448/2002, RFA 481/2002, RFA 497/2002, RFA 572/2002. • y (Relating to Notification under Section 4 of the Land Acquisiton Act 1894 dated 23.12.1994 & Award No. 13/1996-97, Village-Shahbad Daulatpur) AND + LA.APP. 573/2009, LA.APP. 298/2010, LA.APP. 599/2010, LA.APP. 791/2010, LA.APP. 378/2011, LA.APP. 396/2011. (Relating to Notification under Section of Land Acquisition Act 1894 dated

28.04.1995 & Award No. 1/1998-99, Village-Shahba.d Daulatpur) AND • . , + LA.APP.-353/2008, LA.APP. 354/2008, LA.APP. 358/2008, LA.APP.. 372/2008, LA.APP. 524/2008, LA.APP. 884/2008, LA.APP. 1000/2008, LA.APP. 1005/2008 LA.App.No.358/2007 & connected matters • (Reiatlng to.- Notification under Section'.

¶4-.of the.". Land Acquisition Act 1894 dated. 2'7.T0.i999. & Award No. 29/2002-03, Village-Shahbad OaQlatpur) • CORAM: HON'BLE MR. JUSTICE ,PRADEEP NANDRAJQG .

¶1Whether the Reiporters pf local p9.peFS,:may be allo.wed : •to see the judgment? .'

¶2To,be referred to'Reporter or not? '

3.-Wheth,er the judgment should be reported, in the Digest? • - PRADEEP NANPRAIOG, I. ' ' . . 1. • Vide three a.wards as afore-noted'pronounced pursuant to thr&e .notifications issued under Section of -the Land Acquisition Act 1894 , qn • •23;12.1994,,• ,28,.4.1995

27.10.1999, agricultural in ,village-Shahbad ,DauIatpur were acquired for development of Rohini. Phase.-lV,. It ,m.ay,.,be highlighted.that lands for the colony Rohini were first acquired in the year 1961 and from time to time acquisitions were made as and when Rohini Phase-l', Rohini Phase-11 and Rohini Phase-Ill were'developed, and colonized. The .effect of what I have highlighted 'is that by the -time; subject acquisitions were effected, the surrounding lands,had ndtpnjy been acq,uire,d but •had been fully developed and largely-colpniz^ci and thus'the subject lands had.acquired a building potentiality. \

2.- • When judgment was reserved iri the •.•instant appeals. pn

19.8.2011', arguments were:. advanced decision reserved in Appeals pertaining to'-,acquisition of land in'the adjoining; village Rithala. Agricultural lands' of. said 'villag'e LA.App.No.358/2007 & coxmected matters •• • ••Vvf Rithala were also acquired for the expansion of the Rohini Residential Scheme pursuant to a notification dated 21.7.1993 issued under Section 4 of the Land Acquisition Act 1894.

¶3Arguments advanced in the instant appeals were the same as were advanced iri the appeals to village Rithala and thus, since I have dealt with the arguments while pronouncing decision today in the appeals pertaining to village Rithala, I need not re-pen arguments my reasons . dealing with the same.

¶4Suffice would it be to, state that amongst other arguments, one argument advanced, respect to . subject having, acquired a building potentiality. This was, one of the many arguments advanced in the appeals to village Rithala.

¶5I had rejected all arguments save and except the one qua building potentiality' and for which reasons could be gathered from decision pronounced today to village Rithala lead matter is LA.APP.No.656/2008 Sushi! Kumar vs. (JO! & Ors. The same, may be treated as incorporated by reference in the present decision..

¶6With . reference to-the decision of the Supreme Court reported as 1995 (2) SCC 305 P.Ram Reddv & Ors. i/s. Land Acquisition Officer IHvderabad Urban Deveiooment Authority & Ors., on principle of subject having acquired a building potentiality, but there being no reliable evidence to translate the potentiality into a money value, as held in the decision in P.Ram Reddv's (supra), on the basis of market value determined as per actual user I have, to give effect to building potentiality acquired, enhanced the price by 10% and LA.App.No'.S58/2007 & connected matters on; said basis, to tine" notification dated

21.7.1993 have determined fair marl<et value of land in village Rithala as of said date to be ^1,53,000/- per bigha and would highlight that the said sum was arrived at on the basis that as per actual user fair market value on said date would be ^1,39,026.40 per bigha.

¶7Giving same benefit to subject reference to the fact that as of 21.7.1993, factoring in the benefit of building potentiality, for adjoining village Rithala I have determined fair market value at fi,53,000/-; taking the I • ' V • Isaid price and the said date as the base indices, pertaining to the notifications dated

23.12.1994 and 28.4.1995, increasing thfe land price by'10% per annum., I determine the fair market value.to be ?1,69,515.61 per bigha i.e. ?8,13,674.92 per.acre, rounded off to ^8,13,675/- per acre as of , 23.12.1994 ?1,83,390.41 per bigha or ^8,80,273.96 per acre rounded off to ^8,80,275/- per acre. . • .

¶8Appeals by the land owners pertaining'to the said two notifications are partially allowed . by increasing compensation payable as above.

¶9Pertaining to the notification dated 2.10.1999, it needs to be highlighted that the learned Additional District Judge has determined,fair market value at ^12,96,455.89 per acre on the strength of the minimum price, notified by the Government for agricultural lands as of 1.4.1999.

¶10if I were to adopt the land price at n,53,000/- per bigha as of 21.7.1993 and increase the^same by 10% per annum, as I have done for the previous two notifications, the land price would come to ^11,89,728/- per acre,, which would be less than LA.App.No.358/2007& conneGtedmatters " Page4 of 10 the minimum price notified by the Government with effect from 1.4.1999.

¶111do not do so for the reason, in my judgment delivered on 23.8.2011 deciding a batch of appeals, lead matter being LA.APP. No.266/2008 lai Sinah i/5. UP! & Ann, discussing the notifications issued by the Government of Delhi from time to time enhancing market value of agricultural lands and decisions by Courts on the issue of market value of agricultural lands on various dates and in particular the decision of a Division Bench of this Court reported as 2006 (IV) AD (Delhi) 13 Gairai Singh vs. UO! & Ann. \n paragraphs 49 to 52,1 had observed as unden- "49. • 1have, in para 37 above, noted a decision of a Division Bench of this Courts in LA.APP.No.866/2005 decided on

11.5.2006, j^ahender Sinoh vs. UPi & Ors..wherein to village Bawana, fair market value determined as of

15.11.1996 is n,99,904.68 per bigha which equals to ?9,59,542.46 per acre. The said decision would be relevant on the issue of potentiality, an issue which I have promised to discuss. The decision notes that subject i^e. the lands with which the Division Bench concerned, had acquired a potentiality inasmuch as, as discussed in paras 25 to 28 of the decision, rural areas in the Union Territory of Delhi attracting hiigrants. Based on population growth, 5 villages in rural Delhi were . . identified' for providing major health facilities, schools, markets and rural industry, one of which was village Bawana. It was noted that G.T.Karnal Road and Rohtak Road were providing good access to village. Bawana and that the Master Plan for Delhi notified in the year 1990 had indicated the land use in the area to be changed in the future to industrial . commercial, but had also observed that, notwithstanding this, for the reason no', zonal plan was notified as contemplated by Section llA of the • LA.App.No.358/2007&coimectedmatters •, Page5of10 Delhi Development Act 1957, the lands continued to be used for.agricultural purposes and there was no evidence that till the year 1996, any land use had been actually changed put to . use contemplated by the Master Plan,. As in the instant case, where all subject lands were continuously put' to agricultural use, same was the case noted in the, said decision. To put it pithily, the potential use of the lands giving" birth to a potential land value wjth . reference to the area being known to all as being required in the future for building purposes, found not resulting in the potential being, valued with reference to the potentiality i.e. the lands being, in the near future capable of being built upon. To put it differently, decision, though not so expressly, stating, would be a proposition that there is a difference between undeveloped land having building potentiality in presenti vis-a-vis a land having' a building potentiality, in futuro. As already noted by me in para above, as of ,the date

15.11.1996, fair market value determined ,^9,59,542.46 per acre which , j highlight once again is same as would be determined reference to the notification being closest in point of time i.e. notification dated

25.7.1997 where- ,under for agricultural lands in Delhi minimum price fixed by the Government as of 1.4.1997 was .^10 lakhs per acre. Interestingly, same,. Division . Bench had pronounced another judgment reported •as 2006 IV AD (Delhi) 13 Gairai Sinoh vs. UP! & Ann where, pertaining to agricultural in village Holambi Kalan where 940 bigha and 6, biswa land, was acquired pursuant to the same notification dated

15.11.1996, fair market value determined for Category 'A', lands was ^9,76,121/-. per.acre and for . Category 'B' lands was ^9,51,121/- per acre i.e. near approximate to the fair market value of lands in village,Bawana. It needs to,be highlighted that while determining the fair market value as of 15.11.1996 in , village Holambi Kalan, evidenced from . observations of the Court in para 19 and 20 of the decision, location and potentiality with reference to development work carried out in the surrounding • lands, was considered. I would highlight that another LA.App.No.358/2007& connectedmatters Page6ofli5 l!) Division Bench of this. Court, in another adjoining •village in the same 'V i.e. between G.T.KarnaT Road Rohtak Road, i.e. village Singhola determined fair market value as of 19.3.1993

(g) .?1,30,523/- per , bigha i.e. ?6,26,510.40 per acre.. The decision is reported as 2004 (4) AD (Delhi) 20 Ram Chander i/s. ^yo/arid the same Division Bench, as per the decision reported as 111 (2004) DLT Hukum Sinoh i/5. UOI. to a notification. dated

14.1.1994 for village Singhola determined fair market value @ ' n,40,230/- per bigha i.e. ?6,73,104/- per acre.

¶50The aforesaid judgments noted in preceding ; paragraphs as also various . notifications issued from time to .time by Government of NCT Delhi notifying minimum price for agricultural lands in Delhi as tabulated by me in para 7 above bring out two very, important facts relevant to determine the growth/rise in the prices of agricultural land in Delhi over the years commencing from the year 1990. As of 27.4.1990 minimum.price was ^4.65 lakhs per acre which rose to ?10 lakhs per • acre as of 1.4.1997 i.e. the increase, is X535 lakhs spread over. 7 years which gives us a. 115'.054% increase in 7 years and the average price increase would be 16.436%. The price rise.over the next 1 year is by 11.2% and thereafter by.11% for the next 2 years

11.5% for the next year i.e. .as of

1.4.2001. It shows that due to urbanization, between . the year 1990 and 1997 prices grows fairly sharply/, and good corroborative evidence for this would be ' the decision of the Division Bench of this Court in Gajrafs case (supra), which I have discussed in para 49 above. _ •

¶51I need to elaborate a .little more respect to the decision in Gairaj's case. Discussing evidence to fair market; value of agricultural land in village Holambi Kalan as of . ' 15.11.1996, in paras 9 to 17 the Court discussed valuation on the basis of agricultural yield and found that gross return per acre per annum • ^95,000/- for multiple cropped land and having good LA.App.No.358/2007cSc connectedmatters , Page7 of10 \x irrigation facilities and thus capitalized the land price at ^9.5 lakhs per acrei. Discussing second method of land prices of comparable in the surrounding areas including potentiality, in para 19 onwards Court discussed matter reference to land prices in adjoining village Bhorgarh . where FCI Godowns had come, up and based on sale instances found that based on the said sale instances and giving benefit of industrialization the land price would come to ^10,03,364/- per acre (Refer para. 31). ; The Court then considered the prices notified by'the Government as per policy dated. 1.4.1997 and thus worked out the mean average figure of ?9,76,12.1/-. per acre for Category 'A' lands and ^9,51,121/-. per acre .for Category 'B' lands. The decision highlights that the potentiality had been well-factored in when Government issued minimum price notification w.e.f.

1.4.1997, evidenced by the fact that even with respect to sale transactions the Court found that as against the minimum price notified as of 1.4.1997 at .^10 lakhs per acre, sale instances were highlighting that the.price was^l0,03,364/- per acre.

¶52The decision in Mahender Singh's case, to village Bawana, referred to ^by me in para 49 above, highlights with reference to para 28 to 31 of the decision that the Master Plan for Delhi 1990 had been taken into account by the Court which projecting residential,, commercial industrial future exploitation of agricultural land in Delhi and on the issue of potentiality had noted that notwithstanding Master Plan so projecting the lands theoretically .acquiring a potentiality, same had not translated into a reality evidenced by the fact that till the year 1996 i.e. the date of the notification which Division Bench, concerned, virtually no development had taken place in village Bawana Holambi Kalan. and nobody . had exploited potential. As I have already highlighted in para 49 above there is a gap between what would be expected, to be the market growth and what the market actually grows. The decisions LA.App.No.358/2007 & connected matters in Gairafs case and MahenderSingh's case liighliglit that potentiality translated itself into a reality between 1990 and 1997 when prices rose by about .

16.5% per annum thereafter extended potentiality did not translate requisite momentum and the acceleration fell to between 10% per annum to 11% per annum. One reason could .be that pursuant to Master Plan for Delhi 1990 a fairly large area came to be developed, both residential, commercial industrial probably there enough availability of developed land and the hunger 9f the market got saturated."

¶12The decision highlights that by the year 1997 i.e. when w.e.f. 1.4.1997 minimum price deterrnined by the Government was ^10,00,000/- per acre, building potentiality impacti.(ig the value of agricultural lands in Delhi had already been fa.ttored in and thus I hold that to the notification dated

27.10.1999; land value determined by learned Reference Court is correct and thus all appeals to said notification are dismissed leaving the-parties to be'ar their own costs.

¶13To summarize:-

(a) All appeals to notification dated

23.12.1994 stand disposed of determining-fair market value to be paid to the land owners in sum of ?8,136,750/-' per acre together with statutory benefits as explained by the Supreme Court in the decision reported as 2001 (93) DLT 569 Sunder vs. <70/plus proportionate costs.

(b) All appeals to the notification dated 28.4.1995 stand disposed of determining fair market value to be paid to the land owners in sum of ?8,80,275/- per acre together statutory benefits as explained by the Supreme Court in the LA.App.No.358/2007 & connected matters Page 9 of10 decision reported as 2001 (93) DLT 569 SiMSL^JJO!pl^s lir'^riweals•pertaining to the notification dated. ^ 27,10,1999are dismissedleavingthe partiesto peartheirown costs. SEPTEMBER26, 2011 cli< -r-r (PRADEEPNANDRAJOG) JUDGE Page 10of IG LA.App.No.358/2007&connectedmatters

$-89 *IN THE HIGH COURT OF DELHI AT NEW DELHI % LA.APP. 372/2008 HEM CHANDER MALIK Through: None. versus Appellant U.O.I & ORS Respondents Through: Mr.Sanjay Poddar, Senior Advocate Mr.Sanjay Pathak, Advocate for UOI. CORAM: HON'BLE MR.JUSTICE PRADEEP NANDRAJOG