Mahendra Rana v. U.O.I & Anr

ORDER %

26.09.2011 For orders, see LA.App.No.358/2007. --r-lr-~~

PRADEEP NAN DRAJOG, J. SEPTEMBER 26, 2011 mm 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. t2 * IN THE HIGH COURT OF DELHI ATb NEW DELHI % /udgment Reserved On 19 August, 2011 Judgment Delivered On 261' 5etember , 2011 + LA APP 358/2007 HEM CHANDER MALIK Appellant Through: Mr. J.V. Rana, Mr.Deepak Khosla, Mr S K Yadav, Mr S K Verma, Advocates Vs UOl & OTHERS Respondents Through: M'r.SanjayPoddar,SeniorAdvOcate & Mr Sanjay Kumar Pathak, Mr Sachin Nawani, Mr.Siddharth Panda and 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 (Relating to Notification under Section 4 of the Land Acquisiton Act 1894 dated 23.12.1994 & Award N.o 13/1996-97, Village-Shahad Daulatpur) AND + LAAPP 573/2009, LAAPP 298/2010, LAAPP 599/2010, LA APP 791/2010, LA APP 378/2011, LA APP 396/2011 • (Relating: to Notification under Section 4 of the La rid • Acquisition Act 1894 dated 28.04.1995 &. Award No. 1/1998-99, Village-Shahbad Daulatpur) AND + LA APP 353/2008, LA APP 354 2008, PP 358/2008, LA APP 372/2008, 24/200 AAPP 884/2008, LA.APP;1000/20O8, . .5/2008 LA App No 358/2007 & connected matters (Relating to Notification under Section 4 of the Land • Acquisition Act 1894 dated: 27.10.1999& Award No. 29/2002-03, Villae-Shahbad DLlatpur) CORAM HON'BLEMR:jUST10EP.RADEP NANDRAJO 1 Whether the Reporters pf local paperi..may be allowed toee the.judgment? •

¶2To be r.eferred to, Reporter or not? •.

¶3Wheth.e.r the judgment should be reported in the Digest? PRAEEP NAN DRAJOG, 1. ' 1 Vide three awards as afore-noted pronounced pursuant to three notifiction ;sued under Section 4 of the Land .'-cquisition Act 1894 on 23 12 1994, 28A.1995 and 27 10 1999, agricultural lands in village Shahbad Daulatpur were acquired for developent ofRohini Phsc-IV.. It may. 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-I, Rohini Phase-Il and Rohini Phase Ill were developed and colonized The effect of whatz I have highlighted is that by the time subject acquisitions were effected, the surrounding lands had not only been acquired but had been fully rdeveloped an.d largely' colonized and thus the' • subject lands had acquired a building potentiality. 2 When judgment was reserved in the instant appeals on

19.8.2011, arguments were advanced and decision was reserved in Appeals pertaining to acquisition of land in the adjoining village Rithala Agricultural lands of said village LAApp No.358/2007 & conhected matters • • • Page 2 of 10 • • • 'I! Rithala were also acquired for the expansioi of the Rohini Residential Scheme pursuant to a notification dated 21.7.1993 isued under Section 4 of the Land Acquisition Act 1894.. Arguments advanced in the instant appeals were the same as were advanced in the appeals pertaining 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 the arguments nd my reasons dealing with the same Suffice would it be to state that amongst Qther arguments, one argument advanced was with respect to I subjed lands having acquired a building potentiality. This • was, one of the many arguments advanced !n the appeals pertaining to village Rithala I had rejected all arguments save and except the one qua building potentiality, and for which reasons could be gathered from the decision pronounced today pertaining to village Rithala and the lead matter is LA.APP.No.65/2008 Sushi! .Kumars. UO/ &Ors. The same M 'ay be treated as incorporated by reference in the present decisibn 6 With reference to the decision of the Supreme Court reported as 1995 (2) SCC 305 P.Ram Reddy:& Ors. vs. Lahd Acquisition Officer, Hyderabad Urban Development Authority & • •

Ors ., on the principle, of subject lands ha'iing acquired a building potentiality, but there being no reliable evidenc.e to • translate the potentiality into a money value, as held in the

• decision in P.Ram Reddys case (supra), on the basis of market value determined as per actual user I have, to give effect to building potentiality acquired 1 enhanced the price by 10% and . • • . LA.App.No.358/2007 & connected matters • • • • • Page 3 of 10. on said basi, pertaining to the ndtificatin dated 21.7.1993 have determined fair market value of land in village Rithala as of sai,d date to :be 1,53,000J-per bigha and vould .highiiht 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. . . 7 Giving same benefit to the subject lands and with reference to the fact that asof 21 7 1993, factoring in the benefit of building potentiality, for adjoining village Rithala I have determined fair market value at 1,53,000/-; taking the said price and the said date as the base indices, pertainin to the notifications dated 23.12.1.994 and 28.4.1995, increasing the land priceby 10% per annum, I determine the fair market value.to be 1169,515.61.perbighai.e. 8,13,674•.92 per acre, rounded off to 8,13,675/- per acre as of. 23.12.1994 and 1,83;390,41 per bigha or 8,80,273.96 per acre rounded off to 8,80,275/- per acre. . . . . . . Appeals by the land owners pertaining to the said two notifications are partially allowed by increasing the compensation payable as above; . . . Pertainin.g to the nbtificationdated 2.10.1999, it needs to be highlighted that the learned Additional District Judge has determined .air market value at12,96.,455.89 per acre on the •strength of the minimum price. ; notified by the Government for . agricultural iands as Of 1.4.1999. ' . . . .. .. if I were to adopt the land price at 1,53,0,00/- 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.3 5 8/2007 & connected matters the minimum price notified by the Government with effect from 1 4 1999 11 I do not do so for the reason, in my judgment delivered on 23 8 2011 deciding a batch of appeals, lead matter being LAAPP No 266/2008 /aistngh vs UO/&Anr, 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 Ga/ra! Singh vs. UO/ & An in paragraphs 49 to 52 . 1 had observed as under - 11 49 I have, in para 37 above, noted a decision of a Division Bench of this Court in LA APP No 866/2005 decided on 11 5 2006, Mahender5ingh vs UOI& Ors wherein pertaining to village Bawana, fair market value determined as of

15.11.1996 isU,99,904.68 per bighá which equals to • 9,59,542.46 pracre.. Thesaid decision would be relevant On the issue of potentiality, an isue which I have promised to discuss The decision notes that the subject lands i e the lands with which the Division Bench was 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 was attracting migrants Based on population growth, 5 villages in rural Delhi were identified for providing major health facilities, S schools, markets and rural indUstry, one of which was village Bawana It was noted that C 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 and commercial, but had also observed that notwithstanding this, for the reason no zonal plan was notified as contemplated by Section hA of the LA App No 358/2007 & connected matters 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 and put to the use contemplated by the Master Plan As in the instant case, where all subject lands were continuously put to agricultural use, sne 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 with reference to the area being known to all as being required in the future for building purposes, was 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, the decision, though not so expressly. stating, would be a proposition that there is a difference between the undeveloped land having building potentiality in presenti visa-vis a land o . having a building potentiality, in futuro. As already noted by me in para 36 above, as of the date

15.11.1996, fair market value determined was '9,59,542 46 per acre and which I highlight once again is the same as would be determined with reference to the notification being cosest in point of time i e the notification dated 23 7 1997 where-under for agricultural lands in Delhi minimum price fixed by the Government as of 1 4 1997 was Z10 lakhs per acre Interestingly, the same Division Bench had pronounced another judgment repOrted as 2006 IVAD (Delhi)13Gä/ra/Sfngh vs. 1JOI&Anr. where pertaining to agricultural lands 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/- peracre 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 the 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. LAApp.No.358/2007 & connected matters . -7 Division Bench of ithis' Court, in another adjoining vfllage in the same 'V' i.e. between G.T.Karnal Road and Rohtak Road, i.e. village Singhola determined, fair market value as of 19.3.1993 @ 1,30,523/- Iper bigha i.e. 6,26,510.40 per acre. The decision is reported as 2004 (4) AD (Delhi) 20 Ram C'hander vs. (JO/and the same Division Bench, as per the decision. reported as 111 (2004) DLT 95 Hukum Singh vs. (JO!, • . . pertaining to a notification dated 14.1.1994 for village Singhola determined fair market value 1,40,230/- per bigha i.e. 6,73,104/- per acre. • .

¶50The aforesaid judgmehts noted in the preceding paragraphs . as also the . various

notifications issued from time to time by the Government of NCT Delhi notifying minimum price for agricultural lands' in Delhi as tabulated by me in para 7 above bring out two very . impotant thcts • 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 prie ' was 4.65 lakhs per acre which rose to T10 lakhs per', acre, as of 1.4.1997 i.e. the increase, is 5.35 lakhs spread over'. 7 years which give,s .us 'a' 115.054% increase in 7.years and the average pri'ce 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 yea.rs and 11:5% for the next year i.e.,as of '. 1 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 bivision Bench of this CoUrt in Ga/rats case (su'pra), which I have discussed in para 49 above.

¶51I need to elaborate a little more with respect to'the decision in Ga/rats case. Discussing the evidence pertaining to fair market value 'of agricultural land in village Holambi Kalan as of

15.11.1996, in p'aras 9 to 17 the Couit discussed the vaIuaton on the basis ofágricultural 'yield and found that the gross return per acre per annum was 95,000/- for multiple cropped land and having ,good irrigation facilities and thUs capitalized the land price: at 9 5 lakhs per acre Discussing the second method of land prices of comparable lands in the surrounding areas including potentiality, in para 19 onwards the Court discussed the matter with 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 9,76,121/- per acre for Category 'A' lands and 9,51;121I-. per •. acre ,fOrCate.gory JB?.l.ãnds. The decision highlights that the potentiality had been well-factored in when the Government issued the minimum price notification w.e.f. .1.4.199.7, •evidenced by the fact that even with respectto 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 10,03,364/- per

: • acre. The decision in Mahender Singh's case, pertaining 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 wh.ich was projecting residential, commercial and • . industrial future exploitation of agricultural land in Delhi and on the issue of potentiality had noted that notwithstanding the Master Plan so projecting and the lands theoretically acquiring a potentiality, the . same had not tranislated intoa reality evidenced by

. the fact that till the year 1996 i e the date of the notification with which the Division Bench was concerned, virtually:no development had taken place

. . . in village Bawana and Holambi Kalan and nobody • . • . had exploited the 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.Thedecisions • LA.App.No.358/2007 & connected matters . in Ga/rats case and Mahender5inqh's case highlight that potentiality translated itself into a reality between 1990 and 1997 whénprices rose.by about

16.5% per annum and thereafter, the extended potentiality did not translate with the 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 and industrial and probably there was enough availability of developed land and the hunger of the market got saturated." The decision highlights that by the year 1997 i.e. when we.f. 1.4.1997 minimum price determined by the Government was 10,00,0.00/- per acre, building potehtiality impacting the • • value of agricultural lands , in Delhi had already been factored in and thus I hold that pertaining to the notification dated

27.10.1999; the land value: determined by the learned Reference Court is correct and thus all appeals pertaining to said notificationare dismissed leaving the'partes to bear their owh costs. To summarize:- Al! appeals pertaining to the 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) DLT569 Sunder vs. • • • UOIplus proportionate costs. , • • ' • .• All appeals pértaining.to the hotification dated 28.4.1995 • stand disposed of determinirg fair market value to be paid to:

' the land owners in sum of 78,80,275/ per acre together with statutory benefits as explained by the Supreme Court in the LA.App.No. 3 5 8/2007 & connected matters ' Page 9 of iO, •

$-9O *IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.APP. 524/2008 MAHENDRA RANA Appellant Through: None. versus U.O.l & ANR Respondents Through: Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Advocate for UOl. CORAM: HON'BLE MR.JUSTICE PRADEEP NANDRAJOG