UOI v. Om Prakash Decd Thr Lrs & Anr

ORDER %

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

PRADEEP NANDRAJOG, J. SEPTEMBER 26, 2011 mm *• IN THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved On: 19^^ August 2011 fudament Delivered On:2&^ September, 2011 + , LA.APP. 358/2007 HEM CHANDER MALIK ... Appellant. Through: Mr. J!V. Rana, Mr.DeepakKhosia, ' Mr.S.K.Yadav, Mr.S.K.Verma, Advocates Vs. UOl Si OTHERS ... Respondents Through: Mr.S^njay Poddar, Senior Advocate , Si Mr.Sanjay Kumar Pa.th'ak, 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 Si Award No. 13/1996-97, Village-Shahbad Dau'latpur) " ' AND + LA.APP--;5J3/2nOQ.LA.APP.,2'98/2010; LA.APP. 599/2010, LA.APP. 791/20^^J^.APP.378/2011,LA.APP.396/2011 (Relating to" Notification Under Section of Land Acquisition Act 1894 dated 28.04.1995 Si Award No. 1/1998-99, Viiiage-Shahbad Daulatpur). AND + LA.APP. 353/2008, LA.APP. 354/2008, LA.APP. 358/2008, LA.AP'P. 372/2008, LA.APP. 524/2008, LA.APP. 884/2008, LA.APP. 1000/2008, LA.APP. 1005/2008 ' LA.App.No.358/2007& connectedmatters " Pagel.oflO (Relating' to Notification under Section' of Land Acquisition Act 1894 .dated 27.10.1999, & Award No. 29/2002-03, VUlage-Shahbad Daulatpur) CORAM: -HON'BLE MR. JUSTICE PRADEEP NANDRAjOG

¶1'Whether the Reporters of local papers may be allowed to see the judgment? •

¶2To be referred to Reporter or not?

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

1.

¶1^Vide 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 'and

27.10.1999, agricultural lands 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 tinie acquisitions were made as and when.Rohini Phase-!, Rohini Phase-il and RohinI Phase- •111 were developed 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 subject lands, had acquired a building potentiality."

¶2When'judgfnent was reserved in the ihstant 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 LA.App.No.358/2007.&connectedmatters' Page2 of10 . Rithala were'also •acquired for" the expansion-of Rohini Residential Scheme'pursuanf-to'a notification dated 21.7.1993 issued under Section 4 of the Land Acquisition Act 1894.

¶3Arguments "advanced in the instant appeals were same as-were advanced in the appeals pertaining to village Rithala and thus; since 1 have dealt with.the arguments while ' pronouncing decision today in the appeals pertaining to village Rithala, I need not re-pen the arguments my reasons dealing with the same.

¶4Suffice "would it be to state thatamongst other arguments, one argument .advanced was .with respect to-subject lands having acquired a building potentiality. This < • . ' • ' ' • • ; V' 9^^ of the many arguments advanced in the appeals pertaining to village Rithala.

¶5I had rejected all arguments save and except the one qua building potentiality, and-for which reasons could be gathered from decision pronounced. today pertaining to village Rithala lead matter is LA.AP'P.No.656/2008 Sushif Kumar vs. UOl & Ors. The' same may be treated a^ incorporated by reference in the present decision.

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

(2) SCC 305 -P.Ram Reddv & Ors. vs. Land Acquisition Officer. Hyderabad Urban Development Authority & . Ors.. 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 • decision in P.Ram Reddv'scase isupri). 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& connectedmatters } on said basis, •pertaining to the notifiGation .dated

21.7.1993 have determined f^ir market value of la.nd 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.

¶7Giving same benefif to the subject lands with reference to the fact that as of 21.7.1993, factoring in the benefit of building"potentiality, for adjoining village Rithala-1 have determined fair market value at ^1,53,000A; 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-determinethe fair market value to be n,69,515.61. per bigha i.e. ^8,13,674.92 per acre, rounded off to ?8,13,675/- per acre aS of 23.12.1994 ?1,83,390.41 per bigha or^8,80,273.96 per acre' rounded off to f8,80,-275/- per acre.

¶8• Appeals by the land owners pertaining to the..said two notifications are partially allowed . by increasing compensation payable as above. '

¶9Pertajning to the notification dated 2.10.1999, ft needs to be highlighted that the learned Additional DistrictJudge has' . determiinedfair market value at ^12,96,455.89 per acre on the strength of the minimum price notified by the Government for ^ agriculturallands as of 1.4.1999. .

¶10if Iwere to adopt the land price at ^1,5^000/-per bigha as .of 21.7.1993 and increase the "same by 10% per annum, as 1 • 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.358/2007&connectedmatters • -Page4Of10 T the minimum price notified .by the'Goyernment with effect from 1.4.1999. ' •,

¶111 do-not do so for the reason, in my judgment delivered • on-'23.8.201i deciding a batch of appeals, lead matter being LA.APP. No.266/2008 lai Sinah i/s. C/0/ & •A/7r.. discussinQ .notifications issued by the Government of Delhi from time,to time enhancing market value of agricultural lands decisions by..Courts on the issue of market value of agricultural lands on various-dates in particular decision of a Division Bench of this Court reported as 2006 (IV) AD (Delhi) 13 Gairai Sinah 1/5. UO! & Ann, in paragraphs 49 to 52 1 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, Mahender Sinah vs. UO! & Ors. wherein pertaining to village Bawana, fair market value determined as of

15.11.1996 is 99,904.68 per bigha which equals to ' t9,59,542.46 per acre. The said decision would be relevant on the issue of .potentiality, an issue which I have promised to discuss. The decision-notes that subject lands i.e. lands with which .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, • schools, markets and rural industry,, one of which was village Bawana. It was noted that G.TXarnal ' 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 contem-plated by Section llA of the LA.App.No.358/2007&connectedmatters , Page5 of10 . ] ' 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, 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 . stdting, would be a proposition that there is a difference 'between the" undeveloped land having ^ building potentiality in presenti vis-a-vis a land" . having a building.potentiality, inTuturo. As:already noted by me in para-36 ^above, as of the date.

15.11.1996, fair market valuedetermined ' was t9,59,542.46 per acre and . which I highlight "once again is the same as would be determined with • reference to the notification being closest in point of time i.e. notification dated

25.7.1997 where-under for agricultural-lands in Delhi minimum price. •^ • • "fixed by the Government as of 1.4.1997 was flO • ^ lakhs per acre. Interestingly, same Division" •Bench had pronounced another judgment reported as 2006 IV AD (Delhi) 13 Gairai Sinafi i/5. UOl & Ann- . 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 sK Category-'B'lands was 79,51,121/-per acre i.e. near approximate to tfie 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 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 highlightthat another LA.App.No.358/2007&connectedmatters Page6of10 •e Division Bench of .this Court, in another adjoining village in the same 'V i.e. between G.T.Karnai Koad land Rohtak Road, i.e. village Singhola determined f^ir 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 Raw Chander vs. UQland the same Division Bench, as per the decision reported as 111 (2004) DLT 95 Hukum Sinoh vs. UOI. pertaining ,to a notification . dated

14.1.1994 for • • village Singhola determined fair market value (§)• ' Tl,40,230/- per bigha i.e. T6,73,104/- per acre. ,50. 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 agriculturafland In Delhi over the years commencing from the year 1990. As of 27.4.1990 minimum price ' was ^4.65 lakhs per acre which rose to ?10 lakhs per acre as of 1.4.1997 i.e. the increase is ^5.35 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. price-rise over the next 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, betw.een 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 Gajrafs case (supra), which i have discussed in para 49 above. \J

¶51•I need to elaborate a little more with. respect to-the decision in Gairafs case. Discussing evidence pertaining .to fair market value of ' agricultural land in village Holambi Kaian 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 was ^95,000/-for multiplecropped land and having good LA.App.No.358/2007&connectedmatters Page7of10 irrigation facilities and'thus capitalized the land price, at, ^9.5 lakhs per acre. Discussing second , method of land prices of comparable lands in the surrounding areas including potentiality, in para 19 onwards Court discussed 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 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 potentialityhad been well-factoredin 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 ^10.lakhs per acre, sale instances were highlighting that the price was ^10,03,364/- per acre.

¶52The decision jn Mahender Sirah's case, pertaining to village Bawana, referred to by me in •para 49 above, highlights with reference to para 28 to 31 of the declsion 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 Delhi and on the issue of potentiality had noted that, notwithstanding the Master Plan so projecting the lands theoretically acquiring a potentiality, • 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 Division Bench was concerned, virtually no development had taken place in village Bawana and Holambi Kaian and nobody had exploited 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. The decisions LA.App.No.358/2007& connectedmatters Page8 of 10 V' in Gaj'rafs case and Mahender Sinah'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 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."

¶12The decision highlights that by the year 1997 i.e. when w.e.f. 1.4.1997 minimum price determined by the Government was ^10,00,000/- per acre, building potentiality impacting the value of agricultural lands in Delhi had already been factored in and thus 1 hold that pertaining to the notification dated

27.10.1999, land value, determined . by learned Reference Court is correct and thus all appeals pertaining to said notificationare dismissedleavingthe partiesto beartheir . own costs.

¶13To summarize;- _ (a) All appeals pertaining 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) DIT 569 Sunder ixs v/ .4^/plusproportionatecosts. . "•

(b) All appeals pertaining to the notification dated 28.4.1995 stand disposed of determining fair markk value to be paid to the land owners in sum of T8,80,275/- per acre' together with statutory benefits as explained by the Supreme Court in the LA.App.No.358/2007&comiected'matters Page9 of10. It' d^f\s\on reported as 2001 (93) DLT 569 Sundervs. UO! plus proportionate costs.

(c) All appeals pertaining to the ' notification dated

27.10.1999are dismissedleavingthe partiesto beartheirown costs. (PRADEEP NANDRAJOG) JUDGE SEPTEMBER26, 2011 dk j 4+ Page10 of 10 LA.App.No.358/2007&connectedmatters

$-99 *IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.APP. 791/2010 UOI Appellant Through: Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Advocate for UOI. versus CM PRAKASH DECD THR LRS & ANR Respondents Through: None. CORAM: HON'BLE MR.JUSTICE PRADEEP NANDRAJOG