UOI v. Surjan & Anr

judgment and order that the "location" of the land indicates that it has building potential but fell' into an error in ignoringthat factor by observing: There is no record of any income being received by any of the landowners. These lands must, therefore,' be valued as agricultural land with no potentiality whatsoever in the foreseeable future

¶7We are unable to find any justification for such observationand finding. The above finding of the High Court is contradictoryto the earlierfinding based on the location of the land. It is no doubt correct that the reference court vjas influenced by sale transactions in respect of developed land and it failed to make any deductionfor developmentof land while enhancingthe ^ compensation, but the High Court fell into error in ignoringthe future potentialof the land in questionand instead resting its finding as realized potentialonly. The evidence on the record clearly' establishes that the acquired land did-have future potential on account of its •location.It is not denied that the area around the city of Ahmednagaris fast developingand the land in question was located only at a short distance of about one and a half miles from Ahmednagartown.

¶48We have discussed in great detail that Exh. X and Exh.X-1 even read in conjunction with Resolution dated 24th December, 1980 are relevant factors for determining the potential, location and as a guiding factor to the value of the surroundingland to the acquired land. This by itselfcannot be treated to be a determinative factor for awarding compensation to the claimants. In fact for varied reasons, we would decline to fix compensation on the basis of this brochure. Firstly, the claimants have failed to lead any supporting evidence in that behalf. No witness has come and LAANp. 673/2008&batch J A-stated that the acquired land is identicallysituated and has the same facilities like the land covered under Exh.X. Further there is no direct evidence of comparable lands and/or the land having identical potential to the land covered under the scheme. Onus of this kind Vv/as certainlyupon the claimantsand they have failed to discharge their onus in this regard. Secondly, the valuation fixed by this Court on the basis of Exh.X in.its earlier judgment dated 4th September, 2001 has already been set aside by the Supreme Court with specific observationthat the High Court had fallen in error in fixing the market value of the land on the basis of Exh.X. Thirdly, in various cases the SupremeCourt has already stated the law that compensation of an undeveloped land cannot be decided on the sole basis of the rates relatable to the developed land, particularly when other evidence is available on record."

¶20Moreover, insofar as schedule of rates fixed by the L&DO is concerned, not only that is in respect of fully developed residential, commercialand industrial plots, the purpose for fixing those rates is to arrive at unearned increase. In Karan Singh & Ors. v. Union of India, 55 (1994) DLT 511, this Court had not accepted identical evidence for fixing the market value holding that it was not a relevant piece of evidencefor this purpose. Followingobservations in this behalfwould be apposite i '"i^. We are not satisfiedthat productionof copy of schedule of rates only fixed by the' Ministry of Works and Housing (Land Division) will be relevant piece of evidence for determining the market value and ultimately.assessing the amount of compensation under the Act when there are well known principles for determining the amount of compensation.The well known principles are aksi bitucedin Koyappathodi v. State of Kerala (AIR 1911 SC 2027) as follows: It is settled law that the methods of valuation to be adoptedin ascertainingthe marketvalue of the land as on the date of the notificationare (i) opinion of experts (ii) the price paid within a reasonable time in bona fide transactionofthe purchaseor sale of the lands acquiredor the lands adjacent to the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired. These methods, however, do not preclude the No. 673/2008ns, I Court from taking any other special circumstances obtainedin an appropriatecase into consideration.As the object being always as near as possible in an estimateof the marketvalue in arrivingat a reasonablecorrectmarket value, it may be necessaryto take even two or all those matters into account inasmuch as the exact valuation is not always possible as no two lands may be the same -' either in respect of the situation or the extent or the potentiality nor is it possible in all cases to have reliable material from which that valuation can be accurately determined."

¶21The aforesaidjudgmenthas been affirmed by the SupremeCourt in Karan Singh & Ors. etc v. Union of India, (1997) 8 SCC 186. We may also note that in the case of U.P. JalNigam, Lucknowthrough ) its Chairtnan & Anr. v. M/s. Kaira Properties(P) Ltd., Luci<now &. ^ Ors., AIR 1996 SC 1170, the SupremeCourt did not find favour with the argumentthat the market value of the land be fixed on the basis of circle rate fixed by the Collectorfor the purposeof levy of stamp duty. Similarview is taken by the Apex Court in RanvirSingh&Anr. V. Union ofIndia, (2005) 12 SCC 59. ^ 22. This leaves us with one document,stronglyrelied upon by the land owners, namely, Ex.PW-l/A, as per which the land is allotted to DWSSDU in the year 1992 at Rs.20 lacs per acre. However, the distinguishingfeature is that the land covered by the transactionwas of anothervillage,namely, Najafgarh. It is also not in dispute,and in fact accepted by the appellants' own witness, that this village was urbanized prior to 1974. On the contrary, the land of the land owners which is acquired and falls in village Kakrola was never urbanizedunderthe provisionsof Section507 of the Delhi Municipal CorporationAct. The land owners have also not led any evidence , ^ which would evince that both the lands are comparable. As already mentionedabove, the price of developedland cannot be compared with the under developed land. No doubt, the land owners have produced three witnesses, namely PW Nos. 5 to 7, on the basis of which it was sought to be argued that there was hardly any expenditureincurred by the DDA on the developmentof this land. However, whereas PW-5, Deputy Director, New Lease Branch, DDA "has mentioned that the land in cjuestiori was s pond which was transferredto HorticultureDepartmentof the DDA and Horticulture Department had put fencing of that land and also planted plants thereon. He has also stated that some amount was spent by the HorticultureDepartmentfor completionof those works but he was not aware of the actual expenditure. P\X/-6, Section Officer from Horticulture Division, on the other hand, produced P\X/-1/A collectively as well as Annexures PW-1/1 to 1/6 showing the expenditure incurred. These details would indicate that a sum of Rs.9,06,806/-was incurredon labour. The annexurewould indicate that this expenditurecomprisesof the wages paid to beldarfor work of Mali and watch &. ward. Other annexure indicatingexpenditure of Rs.1,74,058/- reflects that that amount was spent on fencing, installationof hand pump, pump set and supply of plants. Another sheet, which demonstrates total expenditure of Rs.8,30,097/- towardssupply of good earth, manure, sinkingof tube well, fencing, sprinklers and the like. However, these expenses cannot be indicativeofthe total amount spent as for gettingthe aforesaidwork LAA No. 673/2008&batch Pagg 19 of 26 \ done permanent staff of the Horticulture Branch is also required. How much amount out of the salaries paid to them is to be charged to this project cannot be ascertained nor any evidence to that effect is led. There would be other infrastructural and overhead expenditure. Therefore, much credence cannot be given to the aforesaid amount spent.

¶23Also for the reasons we have indicated about the other documents, it would not be safe to rely upon Ex. PW-1/A to arrive at the market value of the land at the relevant period.

¶24Therefore,in view of the aforesaiddiscussion,we are of the opinion that the aforesaid documents-cannot form the basis for fixing the market value of the land. At the same time, these would be relevant pieces of evidencefrom the point of view of potential,locationand effect of prevalentprice of developedland surroundingthe acquired land. In this behalf, we may quote again from the Division Bench judgmentof this Court in the case ofJasrath(supra) "49. Besides the fact that Exh. X cannot be taken to be a , determinativeevidencefor fixing the market value of the land but it is certainlya relevant piece of evidence which the Court would have to look into while determiningthe controversy between the parties from the point of view of potential, location and effect of prevalent price of developed land surrounding the acquired land. With these observations, we would reject the plea of the claimants that compensation should be determinedexclusivelyon the basis of Exh. X."

¶25Normally, the sale instancesof the acquired land are best piece of o evidenceand if such evidenceis available,that can be relied upon for the purposeof fixation of the market value. As pointed out above, LAA No. 673/2008_&batch Pagg 20 of 26 /a Mr. Poddar, learned counsel for the respondents,relied upon certain sale deeds (Ex.R-2/1 to 2/7), At the sarrie time, it is also not possible to rely upon sale deeds produced by the respondentsin the form of Ex. R-2/1 to 2/7. These may be 7 sale deeds in respect of 2 bighas each, but they are of the same date, which means that these are the sale deeds of a very small area. When on an earlier occasion the market value of the land v^as fixed on the basis of two sale deeds produced by the land owners, this Court vide its order dated

24.5.2005discardedthe same on the ground that they were related to a small area, which. is clear from the following observations A therein • "10. The aforesaid clearly shows that in so far as Exhibit PW-4/1 is concerned, the same has been executed for a peculiar requirement of the purchaser, who did not have sweet water for that purpose purchaseda small piece of land for irrigation of the land located nearby. This can hardly be taken as basis for determinationof,the land value in view of the peculiar facts in which the Sale Deed was executed.

¶11In so far as Exhibit PW-l/l is concerned,the peculiarfacts have been set out. The land is measuringonly one bigha and in -V ^he circumstancesset out in respectof which that document has been executed, we are of the considered view that it is not possibleto determinethe market value of a large track of land measuring more than 8723 bighas on the basis only of that document." Once v^e reject the sale deeds produced by the land owners, on the parity of reasoning it is difficult to accept the sale deeds produced by the respondents,which also relate to small piece(s) of land, 26, Where does the aforesaiddiscussionleads to? Obviously,neitherthe evidence relied upon by the land owners nor the sale deeds relied LAANo. 673/2008&b!,trh 31 of 26 upon by the UOl can be the foundation for measuringthe market value. At least'they cannot be taken to be determinativeevidence for fixing the marketvalue. Hou/ever,theirother relevancyin terms of Jasrath(supra) shall be taken into considerationappropriately.

¶27This leads our discussion to the policy letter dated 3.5.1990 of the Governmentof India fixing minimum price of agriculturalland. The learned ADJ for this purpose referred to the judgmentof this Court in the case of Otnwati(supra) wherein the SupremeCourt had made the follou/ingobservationsqua such policy decisionsfixing minimum value of the land "15. Such policy decisions of the government cannot be treatedas a substantivepiece of evidence. They are documents prepared by the-Government after due verification and surveys, but the documentsitselfdoes not refer to any distinct piece of evidencewhich was consideredby the governmentfor determining the minimum price payable for acquisition of agriculturalland. At the same time, this policy decision of the Government cannot be treated to be either entirely inadmissibleor irrelevantfor the purpose of determiningthe controversy in issue. This reflects the conscious decision of the appropriate governmentnot to allow registrationof the sale deeds, wherein the agricultural lands anywhere in Delhi are proposed to be sold below the specified rate i.e. Rs.4.65 lacs' per acre (i.e. Rs.1,11,778.84per bigha). This value was fixed in the year 1990. We do not intendto say that the governmentis bound by this price and the petitionersmust get this price, but with such variationsthat are permissiblein law, this would be some kind of a guidelinefor the court to arrive at just and fair market value of the land at the relevant time."

¶28It is, thus, clear that such policy decisionsof the Governmentcannot be treated as substantive piece of evidence. No doubt, in the absence of any other cogent evidence produced, which would indicatethe market value of the land in question,the Court can rely upon such policy decision. We also should not be unmindful of the LAA No. 673/2008&batch Pagg 22 of 26 L 7•) -4 fact that the rate fixed in the aforesaid policy decision is the minimuttiprice'o\ the agriculturalland. Therefore, it would only provide sonie kind of a guidelinefor the court to arrive at just and fair market value of the land at the relevant time. When other evidence is produced, though cannot be made the basis of fixing market value, that at least would indicate that the market value of the land was higher than the aforesaid minimum price fixed by the Government. Therefore,some latitudetowardsthat has to be given in arriving at fair market value.

¶29Though we have already noted above that documents relied upon by the land owners cannot be consideredas determinativeevidence for fixing the market value of the land, but their relevancyis still to be kept in mind from the point of view of potential,-locationand effect of prevalent prices of the developed land surrounding the acquired land and this much peep into these documents is permissible. When we look into the documents from this angle, it becomes clear that the land price, even of agriculturalland or in the said vicinity, was rhore. than the minimum price fixed by the Governmentin its policydated 3.5.1990.

¶30We are, therefore, of the opinion that the land owners would be entitledto the compensationat rates marginallyhigherthan the rates fixed by the Governmentvide policydated 3.5.1990and it would be safe to add 10% more value than the one fixed by the Government indicatingthe minimum price. LAA No. 673/2008&batch Pagg 23 of 26 'V . \ M It would be of interestto note that if we applyanotheryardstickand look into the rnatterfrom anotherangle, we may arrive at the same result. As noted above, the respondentshave heavily relied upon sale deeds which are of 2 bighas each. As per these sale deeds, the sale consideration for 2 bighas was Rs.1,94,000/-. However, Rs.15,520/-was spent on the stamp duty, etc. as well, which has to be added to the sale price. After adding that amount,the price of 2 bigha would be Rs.2,09,520A. On this basis, value of one bigha would be Rs.1,04,760/-. If we take the sale deeds into consideration, which are of 2 bighas each, the sale deeds produced by the land ownerswill also have to be taken into consideration. As per the sale deed dated 4.1.1989,for one bigha the sale price was Rs.l,60,000/-. When we take average of the two sale deeds, one produced by the land owners and the other by the respondents,the amount would work out to little more than Rs.l,20,000/-. We may clarify that these sale deeds are not made the basis of awarding the compensationas they are discardedon the ground that they relate to small area of land. The only purpose was to point out that the . marketvalue fixed by us at Rs.1,20,500/-would be reasonable.

¶32The only questionthat remainsto be consideredis as to whetherthe trial courtwas right in givingappreciationthereupon@12% p.a. for a period of 13 months, inasmuch as, the policy letter is dated

3.5.1990whereas Section 4 notificationis of 6.6.1991. Mr. Poddar argued that in the case of MehtabSingh (supra), the SupremeCourt had indicated that it was not necessary in all the cases to give LAANo. 67^/2008 &h^trh .7^' \ My enhancement@12% p.a. However,Mr. Khosia, learnedcounselfor the land owners, rightly pointed out that the comments of the Supreme Court in that case were in respect of the land in Haryana. Position in Delhi is totally different. It has been established on record, judicial notice whereof is taken in various judgments,that there is a consistent upward trend in the market rates of lands in Delhi. It is for this reason that in number of judgments,this Court has accepted'theformula of increaseof rates @12% p.a. We may again refer to the earlier orders dated 24.5.2005 passed in these appeals while remanding the case back to the learned ADJ. The aforesaid Government policy was taken note of by the Division Bench and following pertinent observationswere made in respect thereof

¶7^The aforesaid referred to Government policy has been consideredby this Court in Tej Ram v. Union of India Anr in (2004) DLT 465 for fixation of the land valuk' lt may," however, be noticed at this stage that in the present case, the acquisition is about a year later of fixation of the land price, which would requireappropriateenhancement."

¶33Thus, the court had opined even at that stage that appropriate enhancementwill be required. This is preciselythe c'ourse of action adopted by the learned ADJ. We are, therefore,of t I the land owners would be entitledto appreciationof 13 months 12% p.a. and the learned ADJ rightly determinedthe market value on that basis. he opinion that

¶34On this reckoning,we are of the opinionthat the majrketpriceof the land in questionas on 3.5.1990should be Rs.96,875+ Rs.9,685. In ^ vi this manner, as on

3.5.1990, the' market value would be Rs.1,06,.560/-. We are of the opinion that the learned ADJ rightly held that appreciation of 13 months @ 12% is to be given. By applying this formula, market value of the land as on the date of notification under Section 4 of the Act would be Rs.1,20,500/-per bigha.-

¶35In these circumstances,the appeals of the land owners are partly allowed by enhancing the compensation from Rs.1,09,500/- to Rs.1,20,500/-. These appeals are allowed in the aforesaid manner with proportionate costs. The appellants shall also be entitled to all other statutory benefits, as awarded by the learned ADJ. All the pending applicationsalso stand disposed of. As a consequence,the appeals preferred by the UOl are also dismissed. October, 2008 LAANo. 673/2008 & hatch V^Krsim) JUDGE v-yv-Vt^ V- (MANMOHAN SINGH) JUDGE $-7 * IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.APP. 402/2008 UOI Appellant Through: Mr. SanjayKr. Pathak, Adv. versus SURJAN&ANR Through: Mr. S.S.Gulia, Adv. Respondents CORAM: HON'BLE MR. JUSTICE VALMIKIJ. MEHTA ORDER %

18.02.2014 CM NO.16853/2013 (U/s CPC bv respondent for release of enhanced compensation amount) Applicationis allov^edand since the main appeal stands disposedof in terms ofthejudgmentdated23.10.2008enhancingthe compensation,the amount which is depositedby the appellanttowards compensationof the landofthe applicant/respondentno.l,whichis acquired,shallbe paidto the respondentno.l by the Registry of this Court alongwithaccrued interest thereon, if any. CM stands disposed of. VALMIKIJ. MEHTA, J FEBRUARY 18,2014/ib

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