Union of India v. Devender Mohan Anand & Anr

ORDER %

26.09.2011 For orders, see LA.App.No.358/2007.

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. * IN THE HIGH COURT OF bELHI AT NEW bELHI /udgment Reserved On 19 August, 201] /udgment Delivered On 26 September, 2011 LAAPP. 35812007 HEM CHANDER MALIK ... Appellant Thrbugh: Mr.JV. Rana, Mr.DeepakKhbsIa, Mr.S.K.Yadav, Mr.S.K.Verrna, Advocates Vs. UOI&OTHERS Respondents Through Mr Sanjay Poddar, Senior Advocate & Mr Sanjay Kumar Pthak, Mr Sachin N!awani, Mr.Siddhar±h Panda and MsK Kaomu.di Kiran,Advocates for R-1. / + LA PP. 62/2004, LA.APP. 136/2004, LA,A.PP.. 166/2004, RFA 422/2001 1 RFA 304/2002, RFA 448/2002 RFA 481/2002, RFA 497/2002, RFA 572/2002. • (Relating to Notification under Section 4 of the Land Acquisitoh Act 1894 dated23.12.1994 & Award No. 13/1996-97, Village- • • Shahbad DaulatUr) AND +: LA.APP. 573/2009, LA.APP. 298 / 2010;P.599/10 LA.APP. 791/2010, LA.APP. 378/2011, LA.APP. 39 (Relating to Notification under• Section 4 of the Land Acquisition Act 1894 dated 2804.1995 & Award No. 1/1998-99, Village-Shahbad Daulatpur), : • •••• AND ,• • = + • LAAPP. 353/2008, LA.APF. 354/2008 LA;APP. 358/2008, LAAP P . 372/2008, LA.APP. 524/2008, LA.APP. 884/2008, LA.APP.. 1000/2008, LA.APP•. 1005/200.8 •. LA.App.No58/2007 &connectedmafters • (Relating to Notification under .Section 4 of the Land Acquisition Act 1894 dated 27.10.1999 & Award No. 29/2002-. 03,Viilage-Shahbad Daulatpur) . . . CORAM HON'BLE MR. JUSTICE PRADEEP NAN DRAJOG . Whether the Reporters of local papers may be allowed toseethejudgrnent? . . To be referred to Reporter or not? Whethe.r the judgment should be reported in the • . Digest? ' PRADEEP NAN DRAJOG, 1. . . Vide three awards as afore-noted pronounced pursuant to three notifications issued under Section' 4 of the Land Aquisition Act . 1894 on 23.121994 1 28.4.1995 :and

27.10.1999, agricultural lands in villae Shahbad .Daulatpur were acquired fordevloprnent of ROhini Phàse-IV. It may be highlighted that lands for the colony Rohini Were.first acquired inthe year 1961 and from time to time acquisitions were made as and when Rohini Phase-i, Rohini Phase-li and Rohini Phase- , 'Ill wer'deveioped and colonized. The effect of what I have highlighted is that by the time subject acquisitions were . ' effected, the surrounding lands had not only been acquired but had been fully developed and largely. cOlonized and thus the subject lands had acquired a building potentiality When judgment was reserved in the ihstant appeals on

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19.8.2011, arguments were advanced, and decision was reserved in Appeals pertaining to a.tqciisition of land in the adjoining village Rithala. Agricultural lands of said village ' LA.App.No.358/2007 & cOnnected mafters' • , Page 2 of 10. " • "----------.------------•---•-.-.---- •-- •----•-------,•-..-- •••.•..'.. 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 3 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 and my reasons dealing with the same 4 Suffice would it be to state that amongst other arguments, one argument advanced was with respect to • subject lands having acquLred a building potentiality. This was, one of the many arguments advanced in the appeals pertaining to village Rithala 5 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 LAAPP.No.656/2008 Sushi! Kumar vs UO! & Ors The same may be treated as incorporated by reference in the present decision 6 With reference to the decision of, the Supreme Court reported as 1995 () 5CC 305 P.Ram .Reddy & Ors. vs. Land Acquisition Officer, Hyderabad Urban Development Authority & Q on the principle of subject lands having acquired a building potentiality, but there being no reliable evidence to translate the potentiality into a money value, as held in the dedsion in P.Ram Redd'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 LA App No 358/2007 & comected matters ., • on said basis, pertaining to the notifiatiôh dated 21.7.1993 ha've determined fair market 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 7 Giving same benefit to the subject lands and with 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 1,53,000/-, taking the 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 1,69,515.61 per bigha i.e. Z8,13;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 8 Appeals by the land owners pertaining to the said two notifications are partially allowed by increasing the compensation payable as above. 9 Pertaining 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 10 If I were to adopt the land price at 1,53,000/- per bigha as of 21.7.1993 and increase the tame by 10% per annum, as I have done for the previous two notifications, the land price would come to 11,89,728/- per acre, whih would be less than LA.App.No.358/2007 & connected matters • . , the minimum price notified by the Government with effect from 1,41999. .

¶11I do not do, so forthe reason, in my judgment delivered on 2;8.2011 deciding a batch Of appeals, lead .matter being LA.APP.• No.266/2008 Ja/ S/ngh vs. (10/ & 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/ S/ngh vs. (10/ & Anr.', in paragraphs 49 to 52 I had: observed as under:- ' "49. , I have, in pa'ra 37 above, noted a decision of a Division •. Bench ' of this.. Court in LA.AP.P.No.866/2005 'decided' on ' 11.5.2006, Máhender SIngh vs. (10/ & Ors. Wherein p.ertainihg to village Bawana, fair market value determined as of ,15:11.1996 is 1,99,904.68 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 1 have promised to discuss. The decision-notes that the subject lands i.e. the lands . with which the Division Bench was concerned, had acqui,red a potentiality inasmuch as, as discussed in paras 25' to 28 of the decision, rural areas in the Union Territory of Delhi was attracti,ng migrants. Based on population growth, 5 villages in ru'ral Delhi were identified for providing major health facilities, • . schools, markets and rural industry, one of which

.. was village' Bavvana. It was noted that G.T.Karnal ROad and Rohtak-oadwere providing good access. to 'village Bawaha and that the Master Plan for, Delhi, nptified in the year 1990 had indicated the land use in the area to be chang'ed 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 Sectioh hA of 'the LA App No 358/2007 & connected matters Delhi Development Act 1957, th lands continued to be used for agricultural 'purposes and there was no evidence that tHI the year 1996, any I . 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, 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 re.quired in the future for building' purposes, was . • found not resulting in the potential beih.g valued with reference to the potentiality i.e. the lands being, in the inear 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 dftference' between the',,, undeveloped 'land havin bJilding ,potentiality in presenti vis-à-vis a land having a buil'ding potentiality, in futuro. As alrea.dy noted by me in p'ara 367above, as of the date

15.11.1995, fair :ma'rket value, determined was

9,59,542.46 per acre 'and which I hihlight Once: 'again is the same as would be determined with reference to the notification being closest in point of, time ; i.e. the: notification dated 25.7.1,997' where-under for agricultural lands in Delhi minimum price.

' fixed by the Government as of 1.4.1997 was T10 lakhs per acre. , Interestingly, the same Division Bench had prono'unced another judgment reported as, 2006 IV AD (Delhi) 13 Ga/ra/ Sinqh vs. ClOt &Anr. where pertaining to agricultural, lands in village

' Holambi Kalan where 940 bigha and 6 biswa land was acquired pursuant to the same notificatio,n dated

15.11J996, 'fair , market value determined for ' • ' Category 'A' lands was 9,76,12.I/- 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 hi,ghlightedr 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 Jands was considered. I would highlight that another

LA.App.No.358/2007 & cbnnected matters ' - . ' ' ' 'Page 6 of'lO, ' ' • Division Bench of ,thi Court, in 'anóthr adjoining village in the same 'V' i.e. between C T Karnal Road nd Rohtak Road, i.e. village 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. LQiand the same Division Bench, as per the decision reported as 111 (2004) DLT 95 Hukum Sincjh vs UQI, pertaining to a notification dated 14.1:1994 for village Singhbla determitied fair market value @ 1,40,230/- per bigha i e 6,73,104/- per acre The aforesaid judgments 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 important facts relevant to determine the growth/rise in the prices of , agricultural land in Delhi over the years commencing' from the year1990. As of 27.4.1990 minimum price was Z4.65 lakhs per acre which rose to Z10 lakhs per acre as of 1 4 1997 i e the increase is Z5.35 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 pricerise over thenext 1 year is by 11.2% and thereafter, by 11% for the next 2 years and 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 Ga/rats case (supra), which I have discussed in para 49 above. I need to elaborate a little more with respect to th'e decision in Ga/raj'scase. Discussing the evidence pertaining to fair market value of agricultural land' in village HOlambi Kalan as of 15 11 1996, in paras 9 to 17 the Court discussed the valuation on the basis of agricultural yield and found' • that the gross return per acre per. annum was 95,000/- for multiple cropped land andhaving good irrigation facHitiesand thus capitalized the land price at, T9.5 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 instahces and giving benefit of industrialization the land price would come to 10,03,364/- per acre (Refer pará 31). The Court then considered the prices notified by. the Government as pr 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 wel!-factored Jn when the Government issued the 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 Z10 lakhs per , acre, sale instances . were highlighting that the price was '10,03,364/- per acre. . . . . • .. 52. Th'e decision in Mahender S/ngh's case, pertaining to village Bàwana, 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 was projecting residential, commercial and industrial future exploitation of agricultural land in • • e!hi and on the issueof potentiality had noted that, notwithstanding the Master Plan so projecti.ng and • • • the lands theoretically acquiring a potentiality, the same had not translated into •a 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 1 , 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 & coected mars • Page 8of 10 'C in Ga/ra/s case and MahenderSingh's case hihlight . that potentiality translated itself 'into a reality,

between..1990 and 1997 when prices rose: by about k16..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 nnum. 'One reason could be that pursuant to Master Plan for Delhi 1990 a fairly large area came, to be developed, both, residential, commercial and jndustrial 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 w.e.f. 1.4.1997 minimum price determined by the Governmnt

,, S was 10,00,000/- p'er, acre, building potentiality 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 notification are dismissed leaving the parties to bear their own costs.

To summarize:-

All ' •appeals pertaining 'to the nOtificatidn dated '23.12.1994 stand disposed of determining fair mrket 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 2.001 (93) D'LT 569 Sunder vs. Lplus proportionate costs.

All appeals pertaining to the nOtification dated 28.4.1995 stand disposed of determining fair market value to be pai.d to , the landowners in sum of 8,80,275/- p.er acre together with

statutory benefits as explained by the Supreme Court in the LA App No 358/2007 & cortnected matters

$-98 *IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.APP. 599/2010 UNION OF INDIA Appellant Through: Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Advocate for UOl. versus DEVENDER MOHAN ANAND & ANR Respondents CORAM: Through: None. HON'BLE MR.JUSTICE PRADEEP NANDRAJOG