Smt Premwati v. Union of India & Anr

ORDER %

01.08.2012 CM No.9575/2012 (u/S 5 of (U/S 5 of Limitation Act, 1963) r/w Section 151 CPC) The explanation for delay of 118 days' in filing the ^ accompanyingappeal is the persistentillness of the appellant.In supportof the aforesaidplea, the medicalrecordha s been placed on record by learned counsel for the appellant. Considering that the appellant is stated to be aged about eightyyears and sufferingfrom variousailments,this Court in the peculiarfacts of this case is inclinedto take a lenientview and condone the delay, as ill health/ falling health is always a groundto condone the delay in such like matters. Accordingly, this application is allowed and delay of 118 LA.APPNo. 171/2000 Page 1 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. r-days' in filingthe accompanyingappealis condoned. Applicationis disposedof. LA.APP No. 171/2012 Counsel for the appellant fairly concedes that in view of decision in LA.APP No.358/2007, 'Hem Chander Malik Vs. UOI & Ors.rendered on 26^'' September,2011, this appeal has to be indeed dismissed. Accordingly, in view decision in Hem Chander Malik (Supra),this appealstandsdismissed,withno orderas to costs. AUGUST 01, 2012 rs 5UNIL GAUR) JUDGE LA.APPNo. 171/2000 Page 2 \ * INTHE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved On: 19'^''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 Pathak, 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. (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 -f 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-Shahbad 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 1,A,App.No.358/2007 & connected mailers Page I of 10 (Relating to Notification under Section of Land Acquisition Act 1894 dated 27.10.1999 & Award No. 29/2002-03, Village-Shahbad Daulatpur) CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

¶1Whether the Reporters of local papers may be allowed to see the judgnnent?

¶2To be referred to Reporter or not?

¶3Whether the judgment should be reported Digest? PRADEEP NANDRAIOG. I.

¶1Vide three awards as afore-noted pronounced pursuant ^ to three notifications issued under Section of the Land ^ Acquisition Act 1894 on

23.12.1994,

28.4.1995

27.10.1999, agricultural in village Shahbad Daulatpur were acquired for development of Rohini Phase-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-ll and Rohini Phase-Ill were developed and colonized. The effect of what I have highlighted is that by time subject acquisitions were effected, the surrounding lands had not only been acquired but V had been fully developed and largely colonized and thus the subject lands had acquired a building potentiality.

¶2When judgment was reserved in the instant appeals on

19.8.2011, arguments were advanced reserved in Appeals to acquisition of land adjoining Rithala. Agricultural of said LA.yVpp.No.-^SS/^OO?& connected mailers 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 instant, appeals were same as were advanced in 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 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 pronounced today to Rithala lead matter is LA.APR.No.656/2008 Sushi! Kumar vs. UP! & Ors. The same may be treated as incorporated by reference in the present decision.

¶6With reference to the of the Supreme Court reported as 1995

(2) SCC 305 P.Ram Reddv & Ors. i/5. Land Acquisition Officer, Hyderabad Urban Development 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 P.Ram Reddy's case (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 I.A.App.No..358/2007 & connected matters i on said basis, to the 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 arrived at on the basis that as per actual user fair market value on said date be ?1,39,026.40 per bigha.

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

23.12.1994 and 28.4.1995, increasing the land price by 10% per annum, I determine the fair market value to be ?1,59,515.61 per bigha i.e. ^8,13,674.92 per acre, f 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.

¶8Appeals by the land owners 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 V 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 ^1,53,000/- per bigha ^ as of 21.7.1993and increasethe 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 1A.App.No,358/2007 &'connected matters I'agc 4 of 10 \ minimum price notified by the Government with effect from 1.4.1999.

¶11I do 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 Singh vs. UP! & Ann, discussing notifications issued by the Government of Delhi from time to time enhancing market value of agricultural decisions by Courts on the issue of market value of agricultural on various dates in particular of a Division Bench of this Court reported as 2006 (IV) AD (Delhi) 13 Gairai Singh i/5. UP! & Ann, in paragraphs 49 to 52 I had observed as under:- "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, MahendenSingh vs. UP! & Pns. wherein to Bawana, fair market value determined as of

15.11.1996 is ?1,99,904.68 per bigha which equals to "79,59,542.46 per acre. The said decision be relevant on the issue of potentiality, an issue which 1 have promised to discuss. The decision notes that subject i.e. which 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 migrants. Based on population growth, villages in rural Delhi were identified for providing major health facilities, schools, markets 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.Ap)3.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 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 with 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, 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 f ' ?9,59,542.46 per acre and which I highlight once again is the 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 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 Sin ah i/s. UP! & Anr. where to agricultural in Holambi Kalan where bigha 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 ^ determiningthe fair marketvalue as of 15.11.1996in ^ Holambi Kalan, evidenced from observations of the Court in para 19 and 20 of the decision, location and potentiality reference to development work carried out surrounding lands was considered. 1would highlight that another 1A,App.No.358/2007 & connectedmailers I'agc 6 of 10 Division Bench of this Court, in another adjoining village in the same 'V i.e. between G.T.Karnal Road Rohtak Road, i.e. Singhola determined fair market value as of 19.3.1993 @ ^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 vs. UP! the same Division Bench, as per the decision reported as 111 (2004) DLT 95 Hukum Singh i/5. UOI, to a notification dated

14.1.1994 for Singhola determined fair market value @ ^1,40,230/- 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 27.4.1990minimum price ' was ?4.65 lakhs per acre which rose to ?10 lakhs per acre as of 1.4.1997 i.e. the increase is T5.35 lakhs spread over 7 years which gives us a 115.054% increase in 7 years and the average price increase be 16.436%. The price rise over the next T 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 be of the Division Bench of this Court in Gairaj's case (supra), which I have discussed in para 49 above. \

¶51I need to elaborate a little more respect to the decision in Gajrafs case. Discussing evidence to fair market value of agricultural land in 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.35X/2()07 & connecled mailers I'age 7 of 10 / irrigation facilities and thus capitalized the land price at ?9.5 lakhs per acre. Discussing second method of land prices of comparable 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 ^9,76,121/- 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 TIO lakhs per acre, sale instances ' ' were highlightingthat the price was ^10,03,364/-per acre.

¶52The in Mabender 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 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 theoretically acquiring a potentiality, same had not translated into a reality evidenced by the fact that till the year 1995 i.e. the date of the notification which Division Bench concerned, virtually no development had taken place in village Bawana Holambi Kalan nobody had exploited potential. As I have already highlighted in para 49 above there is a gap between what be expected to be the market growth and what the market actually grows. The decisions I,A.App.No.35S/2007 & connected mailers in Gairals case and Mahender Singh's case highlight 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 of the market got saturated."

¶12The decision highlights that by the year 1997 i.e. when w.e.f. 1.4.1997 minimum price determined by the Government was tl0,00,000/- per acre, building potentiality impacting value of agricultural lands in Delhi had already been factored 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 bear 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 1/5. ^C/plus proportionate costs.

(b) All appeals to the notification dated 28.4.1995 ^ stand disposed of determiningfair market value to be paid to the land owners in sum of t8,80,275/- per acre together statutory benefits as explained by the Supreme Court l.yV.App.No.358/2007 & connecled mailers I'agc 9 of 10 J \ V reported as 2001 (93) DLT 569 Sunder 1/5. UO! plus proportionate costs.

(c) All appeals to notification dated

27.10.1999 are dismissed leaving the parties to bear their own costs. (PRADEEP NANDRAJOG) JUDGE SEPTEMBER 26, 2011 dk A.App.No.358/2007 & connected matters

$—1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.APP. 171/2012 SMT PREMWATI Appellant Through: Mr. SanjaySherawat,Advocate versus ^ UNIONOF INDIA&ANR. Respondents Through: Mr. SanjayKumarPathalc, Advocate for R-l/UOI COl^M: HON'BLE MR. JUSTICE SUNIL GAUR