Neelam Gupta v. UOI & Ors

ORDER %

26.09.2011 For orders, see LA.App.No.656/2008. -T-7 rv^LSiu&_ PRADEEP NANDRAJOG,J. SEPTEMBER 26, 2011 mm V-7'. IN THE HIGH COURT OF DELHI AT NEW DELHI Vo ludament Reserved On: August, 2011 fudament Delivered 0n:2&.^ September, 2011 + LA.APP. 656/2008 SUSHI'l KUMAR •' ..... Appellant , Through: Mr. L S. Dahiya, Mr. Deepak Khosla, ' Mr. N. S. Negi, Mr. SX. Verma, Mr. B.D. Sharma, Mr. P.S; Vats, . ; ' Mr. R.K. Saini, Mr. S.K. Rout, • . . , Mr. S.S. Rana, Advocates- . . Vs. , • UOI & ORS.' • ... Respondents. - Through: Mr Sanj.a.y Poddar, Senior Advocate & Mr. Sanjay Kumar Pathak, Mr.Sachi.n Nawani, Mr. Siddharth-Panda and Ms. K Kaomudi Kiran, Advocates for R-1. AND ,+ LA.APP. 657/2008, LA.APP.751/2008(rLA.APP.752/2008) LA.APP. 753/2008, LA.APP. 787/2008, LA.APP. 788/2008, LA.APP. 785V2.008, LA.APP. 790/2008, LA.APP. 791/2008, LA.AF^P. 792/2008, LA.APP. 794/200&, LA.APP. 133/2009 (Relating^to Notification datedi 21.07.1993 . issued . under section 4 of the LA. Art.1894 &Award No.04/1996-97, Village- ' Rithala) CORAM: . - HON'BLE MR. JUSTICE PRADEEP NANDRAJOG •1. Whether the Reporters of locaL.papersmay be allowed to see the judgment?

¶2To be referred to Reporter or not? • • .

¶3Whether the judgment should be repotted.in the LA.App.No.656/2008&connectedmatters ' Page1of18 ; Digest? PRADEEP NANDRAIOG, I. •

¶1Larid measuring43-07 bigha was acquired pursjuantto a . notification issued under Section, 4 of tine. Land Acquisition Act 1894 bn 21.07.1993. The acquisition was for a public purpose, namely, Rohlpi Residential Scheme under Planned Development of Delhi. The notification was followed by a declaration under Section 6 of the-L.A.Act which, was issued on-

15.07.1994. After following due process, Land Acquisition Collector announced an award bearing No,4/1996-97, whereby he assessed the fair market value of the acquired land @ ^96,875/- per bigha. Statutory benefits payable as per the L.A.Act 1894, as amended from time.to time, were directed to be paid to the claimants.

¶2, Dissatisfied with determination of the fair market value by the Land Acquisition Collector,, the. land owners sought reference under Section 18 of the L.A.Act before the learned Reference Court. .After affording an opportunity to lead evidence to the parties, the learned Reference Court, vide judgment decree dated

08.02.2008 passed, in LAC •No.230/2000 titled Naresh Bhushan (Since deceased) Thr. IRS. Vs. Union of India, disposed of the reference by enhancing the comperfsation to.,^1,39,026.40 per bigha. On the enhanced compensation statutory benefits as per"the L.A.Act 1894 as amended from time to time were directed to be paid and on which issue there is no dispute. ' Other decisions have foirowedi. LA.Ap.p.No.656/2008&connectedmatters Page'2.ofl8

¶3• The-land owners are still dissatisfied with, compensation assessed and seek the same to be enhanced . . under fhe abovG-captioned appeals.

¶4' I proceed with my discussion on subject by , , .•'highlighting that the Land, Acquisition Collector as well as the. learned Reference Court, while determining compensation, , , , have relied upon the notification dated 03.05.1990 issued by the Govem'meht of Delhi whereunder the Government of Delhi fixed the minimum agricultural price in Delhi with effect from,

27.04.1990

(g) ,?96,875/- per bigha. The only difference •/ between two assessments is that learned Land • Acquisition Collector did not take into account the fact that, he was concerned with determining, the fair market value of land as on the date 21.7-.1993 and the'minirnum price fixed by the Governi^ent was as on 27.04.19^0. The learned Reference Court had granted appreciation @ 11.5% for a period-of 39' .' months and 22 days i.e. the interregnum period.

¶5Arguing the appeals; learned counsel for the appellants, urged that. 3 pieces of evidence have been ignored by the learned Reference Court and thus urged that'the appeals be allowed by enhancing the compensation firstly:

(a).. The land acquired in village Rithala which was the., ^ subject matter of considerationwas for the further expansion ' of Rohini Residential Scheme that earlier lands .acquired in village Rithala and adjoining villages had already .been' developed for residential housing purposes . and • transferred either on free-hold'tenure'or lease^hold tenure at '.rates rangi.ng between ?100/- per square meter to ?2,050/- per square; meter, depending upon size category of : LA.App.Np,'.656/2008& connected'matters. •; • persons to whom allotment was made i.e. economically weaker sections, low income group, middle income group and ,",high income group. It was 'urged that effecting •suitable deduction from the mean:average of said rates, fair market value should be determined. Brochure published by DDA was • relied upon as evidence.

(b) In the alternative it was urged that vide circular dated

03.03.1993 (Exhibit PW-3/1) issued by the Ministry of Urban 'Development effective from 1.4.1992 the Government of India . had notified rates at which it would, charge unearned,increase if perpetual lessees transferred their lease-hold interest in land • demised in perpetuity to' them by the Government. Counsel' urged that the Government having itself notified the rate^ "which it, would treat as the,market rate of land .for charging unearned increase was bound to pay the same price when it acguiretijandin Delhi. .• ,(c) Wi'th reference to Ex.PW-2/1, a plan.showing the location , of the subject land ad-measuring

43.07 bigha. learned counsel urged,.that the rate for charging unearned increase as per Ex.RW-3/1 had to be granted in view of the decision of a Division Bench of this. Court reported as 2006 (136) DLT 1 DDA Vs. LAC & Ors.

(d) .Lastly it was urged that worse-cum-worst appreciation @ 12% per annum cumulatively and not 11.5% simple for-a period of 39 months and 22 days ought to have been granted. •6. The first subnnission urged by learned counsel,, with i'eference to price at which DDA had allotted developed plots,, is premised on evidence which is inchoate and incompleteand the argument advanced by learned counsel for the appellants LA.App.No.656/2008&connectedmatters Page4of18 OH' similar quality of evidence was considered by the Supreme Court in the decision reported as 2009: (15) SCC 769 Laf Chand Vs.. UOL The discussion in paras 11 to 27 of the said decision are relevant and I extract the same as under:- • " Whether the DDA brochure is relevant evidence?

¶11..The PDA brochure (Ext. X-1), dated 9-2-1981 is an. invitation seeking applications from members of the. .public for allotment of plots on lease basis under the Rohini Residential Housing Scheme. The brochure stated that the plots were "in a layout formed/to be . formed in Rithala apd the-surrounding villages. The brochure gives following' provisional rates-for . allotment of plots on leasehold basis.:- SI. No. Plot size Category .• Rate (per square metre)

¶1"26 sq m Economically weaker-sections ? 100

(EWS) - Z • 32 sq m Low income group (LIG) ?125 • 3. 48 sq m Low income group (LIG) f 150 : 4. .60 sq m Middle income group (MIG) ? 200

¶5^ 90 sq m Middle income group (MIG) ? 200 The, appellants contend that Rs 150 per square metre , which is the average -of the said provisional rates,, should be taken-as indicative of the ruling market price.

12.- On careful consideration, we are of the view that such allotment rates of plots adopted by development authorities like' DDA cannot form the basis for award of compensation for acquisition of undeveloped lands for •several reasons. Firstly, market .value has to. be determined with reference to large tracts of undeveloped agricultural lands in a rural area, whereas the allotment rates of development authorities are with reference to.small plots in a developed layout fal-ling withiin urban area. Secondly, DDA and other statutory . authorities adopt different rate.s for plo.ts in the same area with reference to the economic capacity of the LA.App.No.656/2008&connectedmatters • Page5of18 buyer, making'it difficult to ascertain the real market ,' . value, whereas market. value determination for acquisitions, is uniform and does-not depend upon the economic status of the land-loser. Thirdly, we are., concerned with market value of freehold land, whereas, the allotment "rates" in the DDA brochure refer to the initial premium payable on allotment of plots on leasehold basis. We may elaborate on' these three factors. • • First factor 1'3. ..The percenta,ge of "deduction for development" . to, be made to arrive at the market value of large tracts-.. of undeveloped agricultural land (with potential for .• : development), with reference to the sale pnce of small developed plots, varies between 20% to 75% of the pri.ce of such developed plots, percentage depending upon the nature of development of the layout in which th^ exemplar plots are situated. •

¶14The "deduction for development" consists of.two •components.- The first is with reference to the area required to be utilised for developmental works and,the •. second is the cost of the development works. For • example, if a residential layout is formed by DDA or • similar statutory authority, it may utilise around.40% of the land area in the-layout, for roads, drains, parks, playgrounds and civic amenities (community facilities),' • etc. , • • • ^15. . The development authority will , also incur considerable _expenditure for development of , undeveloped land ' into-a developed layout, which • includes the cost of .levelling the land, cost of providing roads, underground drainage sewage facilities, laying water lines, electricity-lines developing - parks and civil amenities, which would,be about 35% of the value of the developed plot. The two factors taken together would be the "deduction for development" and can account for as much as 75% of the cost of the . developed plot. ' ' . LA.App.No..656/2008&coimec'tedmatters ,Page6ofl8 ••(7

¶16On the other, hand,, if the residential plot, is in an •unauthorised private residential layout,-the pefcentage of "deduction for development" may be far les'^. This is because in an unauthorised layout, usually no land will be set apart for parks, playgrounds community facilities. Even if any land is set apart, it is likely to be minimal. The roads drains will, also be narrower, just adequate for movement of vehicles. The; amount spent on development work would also be comparatively less and. minimal. Thus the deduction on account of the two factors in respect of plots in unauthorised layouts, would be only about 20% plus 20%.in all 40% as against 75% in regard to DDA plots.

¶17The "deduction for development" with reference to prices of plots in authorised private residential layouts may range between 50% to 65% depending upon the'standards and quality of the layout.-

¶18The position with reference to industrial layouts will be different,. As the industrial plots will be-large (say of the -size of one or two acres or more as contrasted with-the size of residential plots measuring 100 .sq m to 200 sq m), and as there will be very limited civic amenities and no playgrounds> the area to be , set apart for development (for roads, parks,, playgrounds and civic amenities) will be far less; and •the cost to be incurred for .development will also, be marginally less, with the result the deduction to be .made from the cost of an industrial 'plot may range-only between 45% to 55% as contrasted-from 65% to 75% for residential-plots.

¶19If the acquired land is in a. semi-developed urban area, not an undeveloped rural area, then deduction for development may be as much less, that-is, as'little as 25% to 40%, as some basic, infrastructure will already be available. (A/pte The percentages mentioned above are,tentative standards and subject to proof to the contrary.) / LA.App.No.656/2008&connectedmatters. Page7of18-( /2-

¶20Therefore deduGtion for the "development factor." to be made with reference to the price of a;;. • small plot in a developed layout, to arrive at the cost of undeveloped land, will' be far more than the deduction with reference to price of a small plot in an unauthorised private layout or an industrial layout. It is also well known that, the development cost incurred by statutory agencies is much higher than cost • incurred by private developers, having regard to higher • overheads and expenditure.

¶21Even among layouts formed by DDA, the percentage of land utilised Tor roads, civic amenities, parks and playgrounds may yary with, reference to the • , nature of layout—whether it is residential, residential-cum-commercial or industrial; even among . residential layouts, the percentage will differ having regard to the size of the plots, "width of the roads, • •extent of community facilities, parks and playgrounds • provided.

¶22Some of the layouts formed by the statutory ' development authorities may, have ' large areas . earmarked for water/sewage treatment plants, water •; tanks, electrical substations, etc.-. in addition to the usual areas earmarked for roads, drains, parks, : playgrounds community/civic amenities. The purpose of the aforesaid examples is only to show that the "deduction for development" factor is a variable' , percentage and the range of percentage itself being • very wide from 20% to 75%. , • Second factor -•

¶23, DDA and other statutory development authorities adopt different rates for allotment of plots in the same layout, depending upon the economic status of the allottees, classifying them as' high income group, nriiddle income group, low^ income group, eGonomically weaker sections. As-a consequence, in the same layout, plots rnay be earmarked for persons belonging to ' economically -yyeaker sections at a LA.App.No.656/2008&connectedmatters Page8of18 .'3 price/premium of Rs sq'm, whereas price/premium charged m&y be Rs 150~ per square metre for members of low income group, Rs 20Q.per square metre for persons belonging to middle income' group Rs per square metre for persons • belonging to high income groups.,

¶24The ratio of sites in a layout reserved for HIG, MIG, ,L1G and EW5 may also vary. All these varying , . factors reflect in the rates' for allotment. It will be illogical to take the.average, of the allotment rates, as "market value" of those .plots does not .depend upon the cost incurred, by DDA statutory authority, but upon paying capacity of applicants for ' • allotment. Third factor

¶25Some development authorities allot plots on, freehold basis, that is, by way of absolute sale. Some development authorities like DDA allot plots. on leasehold-basis.- Some have premium which is almost equal to sale price, with' a nominal annual rent, whereas others have lesser premium, more substantial annual rent.' ' ;

¶26There are standard methods for determining ' annual rental value with reference to the value of a, freehold property. There are also standard methods for determining the value of freehold (ownership) rights ' ; . with' reference to the annual rental income in regular ^ leases': But it is very difficult to arrive at the market value of a, freehold property with reference to the^ premium for a leasehold plot allotted by DDA. As the ' period of lease is long, the' rent is very nominal, sometimes there is a tendency among the public to • equate lease premium . rate, (allotment price) " charged by DDA,'as being equal to the market value of the property. . ,

27.. However, in view of the difficulties referred to above, it is not safe or advisable. to rely upon the •• •LA.App'No.656/2008&connectedma-tters , .Page9of18 )1V allotment rates/auction rates' in Vegard ' to . the plots, formed by DDA in a developed layout, in determining the market .value of the adjoining undeveloped freehold , lands. The DDA brochure ' price has therefore , to be excluded as being not relevant."

¶7I had referred to the same material relied upon in the . instant case pertaining to Rohini Residential Housing Scheme . in my decision dated 23.8.2011 in-LA.App.No.266/2008 Singh Vs. UP! & Ann and with reference to the decision of the •Supreme Court in La! Chancfs case (supra) had held that it would be neither safe nor advisable to determine fair market value ofsubject lands on the basis ofthis inchoateevidence". 1. . reiterate my reasoning therein which may be read as . reasoning in the instant decision as well and thus negate the first plea urged. .'

¶8Argument (b) and (c) are intertwined. for the reason justificationto be paid the land price in .terms.bf Ex.PW-3/i is by drawing attention to the plan Ex.PW-2/1and'the decision of • a Division Bench of this Court, reported as 2006 (136) DLT 1 PDA i/s. LAC & Ors. •g, 'The site plan Ex.PW-2/1 would reveal that the subject jand ad-measures

43.07 bigha i.e. 43,700 square, yards. Ex,PW-8/l i.e. the lay out plan of Rohini Residential Scheme-would reveal that on ajl sides of subject land development has. been carried out.' , • .

10.- Land which formed the subject matter of consideration • , before the Division Bench in the decision reported as 2006 • .

(136) DLT 1 DDA Vs. lAC & Ors ad-measured only 2,000 square yards and had been left out from.the earlier acquisition by time said land was acquired, complete 'LA.App.No.656/20D8&connectedmatters ' Page10 of18 / development had taken place around the said 2,000 square yards of land. Now, virtually no development is required'to exploit the. 2,000 square yards of land if it is bounded by • developed land all around. Thus, there can be no equivalence-with respect to the principle to be adopted for a small parcel of , land, ad-measuring 2,000 square yards which Is bounded on all •4 sides by developed lands and.a parcel of land ad-measuring , ,.43,700 square yards bounded on all 4 sides by developed Jands for-the reason if the purpose of acquisition is a housing scheme, jot of development would have to be carried out on the 43J00 square yards of land. Roads, parks, space for utilities etc. would have to be left out. Expenditure would have to be incurred on main roads, storm water drains, street lights and sewage lines and-the same inchoateness will permeate the quality of evidence as was found in the decision in La! . Chancfs case (supra). Thus, argument' (b) and (c) as noted hereinabove cannot be accepted. • 11: I may only highlightthat th.e Halqa Patwari o^ Rithala was examined' as a witness in the references his testimony. • brings out that there exists a nallah}n\he acquired land, which depreciates its price. There was no structure on the land and mere existence, of a road within the acquired land would not render the land a fully developed-area, requiring no further development activity.-

¶121 may note that' lands in village Rithala' have been acquired since 1961 on many occasionsfor Rohini Residential Scheme! Besides the lands situated in village Rithala, the lands in the adjoiningvillages,namely,Sh^ahbadDaulatpura.nd - P'ooth K'aIan were also acquired earlier for the same Rohini LA.App.No.656/2008&connectedmatters - Page11 of18 r y K Residential Scheme, which is one.of the largest residential schemes in Delhi. Certain lands situated in village Shahbad, •Daulatpur :was ea'rlier acquired' vide notification dated 23 06.1989for the said purposeof Rohini ResidentialScheme. ADivision Bench,of this Court, in RFA No.677/1994titled ' r-.^nni M^r^in etc. l/?- Union.ofJam, after examining similarevidence,in its decisiondated 30.09.2008,.determined, the fair market value to.be at^89,620/- per bigha as of

23.6.1989• and rejected similar argument with regard'to 'comparisonwith developedland. 13, Imay alsp note thatwhile assessingthe fair marketvalue of land acquired pursuant to the notificationsissued in the year 1980-8,1,a Division Bench of this court, while adopting' ^ the DDA's brochure and the sale price of developed plots, assessed the fair market value at T73/--per sq.yds. While making sucft an assessment,the DivisionBench also deducted 60% towards developmentcharges. The main judgmentwas •rendered, in the decision reported as 95 (2;002) DLT 605 Jas jgart lA. Uninn nfIndia,which1may referto as Jas Rath-I. Said - decision was challengedbefore the Supreme Court and was :• reversedin the decisionreportedas 2005 (12) SCC 59»er Another Vs. UnionMLJMa-The reasoning of the , DivisionBench was found faulty and the matterwas remanded • for fresh consideration.. • 14. On,remand,a Division Bench of this Court assessedthe fair marketvalue of the land at f27 per sq-.ydsas againstRs 73 ,. p^r sq.ydsfixed earlier. The decisionin reinandis reportedas 130 (2006) DLT 700 tac Rath Vs. Uninn ofIndia. 1referto the •said decision as JaiRaM-Against this .decision, Leave to • Paee 12 of 18 LA.App.No.'656/2008&connectedmatters n Appeal was'granted by the Supreme Court and the final decision rendered was m La! Chands case (supra), in which •fair marl<et value was enhanced,to 00,50 persquare yards, but argumentbased upon fixing the land price with reference to the rate at which developedplots were transferredby DDA with ,suitable adjustments towards development was . specifically rejected. . ,

¶15In the d.e'cision reported as 1995 (2) SCC 305 P. Ram - f. ors. 1/-^ land Acauisitiannfficer. HyderabadUrban n^wplnnmentAuthnritv.H^dprahad&Ors. it was observedas under:- •. "11. Prices fetched by sales of building plots which may become availablecould be of building plots m , eithera fully developedlayoutof buildingplots or m an undevelopedlayoutof buil(;iingplots, situated in the vicinrty of the acquired land with building ; ••• potentiality. If-the market value of the acquired land with building potentialityhas to be ® : • basis of the evidence of the said thing required to be done is to prepare a hypotheticallayoutof buildingplots ofthefquired . land itself. Then, how much of land out of the acquired land becomes available to be made mo plotfsimilarto those in the developed layout o , buildinq plots .or -in the undeveloped-layout of • SS plotshastobefoundout. Ifthe bud^^^^^^^^^ '• • plots which so become availablewere to be sold at •t^he prices at which the, building plots m the • developed by out of building plots or undeveloped layoutof building plots could have been sold on thq , •.date envisaged in Section 4(1) of the Act,, what would be the total amount of such prices v^nich could have been obtained has to be seen. Then what could-have been-the losses suffered .or Txpenses incurred for getting such total^amount hRs to be found out. The market value of tne acquiredland with buildingpotentiality,can then be ' j ^ LA.App.No.656/2008&connectedmatters /•? ) regarded as the-totalamount of the prices of sales • of all. building plots envisaged in hypotheticallayoutof building,plots in the acquired land minus the losses which could have been suffered or expenses which could have beeri. incurred in making the hypothetical layout of • building,plots in the acquired-land on par with the " ^ developed, layout of building plots or undeveloped layout of bu^ilding plots as the case may be. If losses to be suffered or expensesto be incurred-.formaking a layoutof-buildingplots mthe acquiredland with building potentiality;forpurposes of selling such building plots-at the prices to be , fetched by similar building plots in the developed , layoutof buildingplots or in the undevelopedlayout • of building plots are to be .found out, the '^ses which might have been sufferedor expenseswhich ' might have been incurred by the owners of the • lands of either of a developed layout of building plots or of an undevelopedlayout of building plots • in making such lay outs,-could,prove to the best . .evidence. The evidence ^ - expenses incurred in having made a layout of '••• building plots may relate to lands lost for laying roads, drain,sewerages,parks etc, costsincurred.n •. the making of roads, drains, sewerages,Prowdmg water supply,electricsupply, losses . and paying of. conversion charges,' development , •• charges etc. in a developed layout or an undeveloped layout in which building plots had been laid and sold and which sales form the basis for determiningthe market value of the acquired. land If evidenceto be adduced in the said regardjs , of public authorities or local boards^ or. private . y\ developers-who will' have formed such layouts of ^ ' • building plots in the land ih the neighbourhoodof the acquired land and sold them, ' :qreat value. No difficulty arises, when al •materialsneeded to determinethe marketvalue of . . the acquired land with building basis of ahypotheticallayoutof buildingP°ts ^ -•formed in respect of it is made available to the Court' so as to enable it to find out the possible ma'ketvalue of the acquiredland-withreferenceto - , j ' ^ • LA.App.No.'656/2008&connectedmatters ^ the price to be'fetchedby sale of building plots to ' be made in such land. But, owners, of the acquired ' land with building potentiality, rarely produce all the material or evidence needed for the Court to determine the market value of the acquired land •with building potentiality-on the basis of ^a . hypotheticallayout of building plots to be-thought - of by the Court in respect of,such land,'although• they rely on the pricefetched by sale of plots.inthe • ' developed layout or an undeveloped layout for determining the market value of their lands with buildingpotentialityinthevicinityofsuchlayout.lt is where the Court may have to inevitablyfix the • • market value of the acquired land with building. • potentialityon the basis of the pricesgot in the s^le • transactions relating to the building plots in I a • ' developedor an undevelopedlayout, relied upon by m the owners .of the land,-if such transactions are . found to be genuine.Asimple method,therefore,is evolved by courts in determining(he .marketvalue . of the acquired land with building potentialitywith ' referenceto the retail price to be fetched by sale of plots'in a fully developed layput as on the date of Dublicationof Notificationunder Section 4(1) or tne •Act. In Bombay Improvement Trust v. ' , Manekji Mistry reported in AIR 1926 Bom 420 the said method is referredto by Macleod, C.J as tha , where the wholesaleprice of the acquired land with building,potentialitycould be fixed at one-thi^ one half of the retail price fetched by sale of ' building plots in a developed layout of.building plots; depending upon the nature of development, . taken place in such layout. Thus, when it becomes ^ inevitablefor the Court to fix the market value.of •• .'. the acquired land with building potentialityon the ^M . , (33515 of the price fetched by sale of a P'° . in a developed layout of building plots m the l^ci.nity it must, in our view, fix the wholesale • . market^alue of the acquired land^witn bui dmg DOtentiality at one-third to one half of the retaJ • price got by genuine sales of plots in a devel^oped • .^out in thVvicihity>ydeductingtwo^ . • • one-halfout of the retail prices of plots, as losses or. expenses involved in having made the land where • ' " j « LA.App.No.656/2008fecoimectedmatters the plots are formed as developed,accordingto the degree of development. For instance, if the retail price of plot is ?12 per square yard,^the wholesale • ;price of the acquired land with building potentiality could be fixed at rupees varying between ^4 and • depending upon the nature of developmentfound in the layout of the plot sold ,in reta;il. Coming to fixation of the. wholesale price of the-acquired land with building potentiality on the basis of retail price of a-building plot sold out of an undeveloped layout of building.plots, such wholesale,price ought to be • , -fixed by deducting at least one-third of the retail " • • price of the building-plot in such layout, because such would be -the least loss to be suffered in forming a layout of building plots in the acquired land; with building potentiality, after leaving out land for roads, drains etc. by obtainingthe-needed permissionsfrom publicauthoritiesfor making such •• -layout. Therefore, the ' wholesale price of the acquiredland could be fixed at ^8 per squareyard If •. -the price fetched or to be fetched by. sale .of building plot in an undeveloped layout is X\2. • • However, in either of the said cases whether it be the.^determination of the .market value of the acquired land with building potentiality with'- reference to the price fetched by sale of plots in a well, developed layout in the neighbourhood or • whether it be the determinationofthe market value . of the acquired land with building potentialitywith reference to the price fetched by sale of building blots in an undevelopedlayout-of building plots in the neighbourhood,it becomes;inevitable for the Courtto find out what will be the price fetched orto be fetched by the sales of plots in'the, layouts, • relied upon by any of the parties, with referenceto the price which the plots could have fetched if sold -on the date of the publication of the preliminary notificationunder Section 4(1) of the Act. Further where no evidenceof price fetched by the sales of the plots in layouts .of building, plots in the neighbourhood of the acquired lands becomp • available,then what could be done is to find out the ; . market value-ofthe acquired land with referenceto • the relevant date of publicationunder Section 4(1) LA.App.No.656/2008&connectedmatters Page16 of18 ,/ of the LA Act, according to the actual, use to which it was put increase 'its value by a small, percentage having regard to the degree of. its .. ' building potentiality ascertained on the basis-of evidence to be made available in that regard. A small percentage increase, to be given shall not exceed-1/5'^ of the market value of the land found out according to its actual, user since resort to the method of giving increased value for such building potentiality arises only when there is no evidence of sales of building plots in the neighbourhood of the acquired land indicating, that there was no immediate demand, as such, for building plots even if formed in the acquired land."

¶16Considering the fact that the subject lands ad-measure 43,700 square yards i.e'. a mid-segment.area; neither too small (akin to. 2,000 square yards) or^' too large for a housing residential scheme where normally acquired lands range between 300 bigha to 7000 bigha i.e. 3,02,400 square yards to . 70,56,000 square yards, copsideri.ngfurther that it'is bounded on air4'sides by developed land-on which colonization has been affected, in view of the observations in P.Ram.ReddVs case, .(supra), subject lands, qua which evidence of .potentiality translating into money value as .required has not ^;been led, and indeed I find is not being led.in'any case where' such an argument is advanced; for it would be very difficultto translate the development cost of.,the developed land into a . definite value qua potential. But, cdnsidering, the-mid-size- •segment of land, I am of the opinion that as held .in said decision a percentage increase not exceeding 1/5^^ of the market value otherwise .determined as per actual user of the acquired jand (towards building potentiality) needs to .be • granted. As per P.Ram.ReddVscase the maximum increase LA.App.Np..656/2008&connectedmatters ~ Page17 of18 % 22_ could be 1/5"^ i.e. 20%. Considering that the instant lands are in mid-area segment since exactness can never be achieved ,while'determining fair market value of large and even mid-size segment of lands, I hold that 10% increase over •and above the market.value determined'according to its actual 'user.would be a just and a fair method to determine the. compensation payable.

¶17Concurring with the reasoning of the learned Reference Court that .on actual user basis fair-"market value as on

21.7.1993 comes to ?1,39,026.40 per bigha, increasing the. •same by 10% I determine the fair market value payable in sum. . of ?1,52,929.04 per bigha, rounded off to ?1,53,000/- per bigha. . • 18. As a result of this discussion, the appeals preferred, by the land owners are allowed as above. -Decree be prepared. It is made clear that the land owners would also be entitled to all stattitory benefits, including the benefits granted by the SupremeCourt in its decision in 93 (2001) DLT 567 Sunderi/s. Union of India. The appellant would also be entitled to • proportionate costs. (PRADEEP NANDRAJOG) •JUDGE SEPTEMBER 26, 20ll mm LA:App.No.656/2008&connectedmatters Page18 of18 ^

V $-4 *IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.APP. 752/2008 NEELAM GUPTA Appellant Through: Mr.l.S.Dahiya, Advocate. versus UOI & ORS Respondents Through: Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathai< IVjr.Siddharth Panda, Advocates for UOI. Mr.Ajay Verma Mr.Amit Mehra, Advocates for PDA. CORAM: HON'BLE MR.JUSTICE PRADEEP NANDRAJOG