Panna Lal Jain v. UOI & Anr

PRADEEP NAN DRAIOG, J. For orders see LA.APP. No.59/2 007 (PRADEEPNANDRAJOG) JUDGE JUNE 07, 2011 dk 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 DELHI AT NEW DELHD % Judgment Reserved On: 1 /ine, 2011 Judgment Delivered On: 70 fune, 2011 LAAPP.NO.59/2007 BED RAM ...... Appellant Through: Mr.B.P.Gupta, Mr..Deepak Khosla and Mr.L.C.CheChi, Mr.R.B.Singh, Mr.Satish K.Verma and Mr.Rjesh Gupta, Advocates. Versus UOl& ORS. .....Respondents Through: Mr.Sanjay Poddar, Standing. Counsel (LA), • .GNCT Delhi with Mr.R.C.Ray, Ad\focate • fbrR-1... H Mr.Ajây Kumar Verma, Standing Counsel DDA. And ' +LA.APP.41/2007 & CM 12011 (Cross Objections), LA.APP. 5812007 & CM 3856/2011, LA.APP.6012007, LA.APP.61/2007, LA.APP.62/2007, LA.APP.63/2007 & CM 11398/2011 LA.APP.64/2007 & CM No.942/2011, LA.APP. 65/200h LA.APP.66/2007 & CM No.2547/2011, LA.APP.7312007 & ci4 No.938/2011, LA.APP.87/2007, LA.APP.8912007, LAAPP.91/2001L LA.APP.412 2007 LA. 1. LA.APP.748 2008 & CM No.945 2011 LA.APP.802 2008 LA.APP.1028 2008 LA.APP.1033/2008, .. . LA.APP.1037/200 LA.APP.89/2009 & CM 11380/2011, LA.APP.116/2009 • • LA.APP.130/2009, LA.APP.553/2009, LA.APP.559/2009 & CM No.923/2011, LA.APP.595/2009 & CM 916/2011, LA.APP.2/2010 L LA.APP.8/2010, LA.APP.101/2010 & CM No.914/201L LA. A PP.380/2010, LA. AP P.957/2010, LA. A PP.958/20 1Q LA.APP.3/2011, LA.APP.29/2011, LA.APP.54/2011 & CM 9964/201 LA..APP.155/2011, LA.APP.156/2011 &• CM .11360/2011 L I LA.AP.159/2011, LA.APP.251/2011, LA.APP.40/2007, LA.APP.42/2007, LA.APP.43/2007, LA.APP.44/2007, LA,APP.293/2007, LA.APP.335/2008, LA.APP.1104/2008, LA.APP.1105/2008, LA.APP. 1.106/2008, LA.APP. 1107/2008, LA.APP.647/2009, LA.APP.650/2009, LA.APP.311/2010, LA.APP.3 14/2010, LA.APP.3 15/2010, LA.APP.316/201 LA.APP.388/2010, LA.APP.699/2010, LA.APP.930/2010, LA.APP.931/2010, LA.APP.933/20-10, LA.APP.934/2010, LA.APP:1065/2010 & CM 11370/2011, LA.APP.372/2007, LA.APP.501/2008, LA.APP.508/2008 & CM No.14151/2008, LA.APP.509/2008, LA.APP.564/2008, LA.APP.565/2008 & CM No.14141/2008, LA.APP.609/2008; LA.APP.631/2008, LA.APP.737/2008, LA.APP.739/2.008 & CM No.1548/2011, LA.APP.816/2008, LA.APP.817/2008, LA.APP.876/2008, LA.APP.966/2008 & CM 1568/2011, LA.APP.992/208 & CM No.1288/2009, LA.APP.994/2008 & CM No.523/2009, LA.APP. 995/2008, LA.APP.996/2008 & CM No.1035/2009, LA.APP, 1016/2008, LA.APP. 1035/2008, LA.APP. 1036/2008, LA.APP. 1039/2008, LA.APP. 1041/2008, LA.APP. 1102/2008, LA.APP. 1136/2008, LA.APP.1204/2008 & CM No.919/2011, LA.APP. 1234/2008, LA.APP. 1236/2008, LA.APP. 1235/2008 & CM 11397/2011, LA.APP.550/2009 & CM N0.967/2011, LA.APP.551/2009 & CM No.11383/2011, LA.APP. No.57612009 &CM J1386/2011, LA.APP. 580/2009, LA.APP. 607/2009 & CM 11389/2011, LA.APP. 2512010, LA.APP. 253/2010, LA.APP. 263/2010, LA.APP. 264/2010, LA.APP. 454/2010, LA.APP.67712010 & CM 11373/2011, LA.APP.678/2010 & CM 11395/2011, LA.APP. 679/2010, LA.APP.680/2010 & CM NO.958/2011, LA.APP.681/2010 & CM No.961/2011, LA.APP.682/2010 & CM 11393/2011, LA.APP. 683/2010, LA.APP.911/2010 & CM No.11364/2011, LA.APP.946/2010, LA.APP. 947/2010, LA.APP. 949/2010, LA.APP. 951/2010, LA.A.PP. 952/2010, LA.APP. 140/2011 & LA.APP.560/2009 CORAM: HON'BLEMR.JU$l]CE PRADEEP NANDRAJOG' Whether the Reporters of local papers may be allowed to see the judgment? To be referred to Reporter or not? 3; Whether the judgment should be reported in the Digest? . . Pdge2 of 3Z /L1 PRADEEP NANDRAIOG )(

¶1Un-numbered cross objections and ci\fil miscellaneous applications which are in the nature of cross Objections, if any, lying unnumbered in the above captioned appeals may be numbered by the Registry. •

¶2The instant, decision decides aforenoted appeals and cross objections in such appeals whe cross objections are filed.

¶3. The river Yamuna is not only an important feature of • the city of Delhi, but is also a major source of water supply to the city. It draws its water from the Yamunotri Glacier in the upper, reaches of the Himalayas and on the way to the plains, is enriched by the river Tons and needless to state, numerous streams and rivulets enrich the river in its onward journey. It travels a distance of about 400 km in the plains before joining river Ganga at Allahabad. •

¶4. it enters the city. of Delhi from the North and flows Southward and covers a length of nearly 50 km while flowing through Delhi, of which about 22 km, is within the urban stretch and the balance 28 km in the rural stretch.

¶5•.. Over the last centuy the quality of the water in the river has deteriorated due to incrased waste water discharge, not only within the city of Delhi, but even upstream, when flowing through the city of Yamuna Nagar and 'the city of Panipat, both in the State of Haryana, where rapid industrialization has resulted in industrial effluçnt being discharged into the river water. The eco-system supporting migratory avifauna and the ground water has • • Page 3 oi3Z continuously degraded, requiring immediate attention foi onservation. Various plans to harness the potential of the river have been discussed since early 1980 with reference to the navigational potential of the river, the aesthetics of the river and requirement of it being blended with the city of Delhi, as is the river 'Thames' in • Ergland and the river 'Seine' in Frahce. Bodies such aS the 'Ministry of Environment and Forests', 'Central Water Power Research Station' and 'National Environmental Engineering Research Institute' have been • • suggesting remedial measures in various reports submitted, from time to time, proposing plans for integration of river Yamuna in the planning, forthe development of the National Capital Region, and of necessity which includes the National Capital Territory of Delhi Of the various proposal.s made, emphasizing the ecological role of the 'Flood Plains', abutting the ri-ver . bed of the river Yamuna and its conservation imperatives channelization of river Yanuia has been proposed, not only for the purposes. of flood control but even drainage, improvement and reduction in bank erosion. Of necessity, the proposals envisage modification of the river channel, keeping into account the conventional methods for channelization, ihvolving enlargement of the channel by widening • • and/or: deepening, to increase the channel capacity to carry water that would have btherwise spread on to the flood plain 9 The Nodal Authority for the Planned 'Development of • Delhi, the much maligned Delhi Development Authority, which is • .• • accused by many of having created urban chaos in Delhi, had • evolved the 'Environmental Management Plan' for the streLch of LA.APP.59/2007& connected • river Yamuna in the National Capital Territory of Delhi, with the overall objective of rejuvnating the river. The plan delineates the requirement of the city and makes recommendations after Initial Environmental Examination of the proposed activities in the River Front Development Plan' 10 Briefly, the report delineates guidelines for development of river Yarnuna s it flows in the:ci.ty of Delhi by dividing the same into various stretches

¶11One such stretch is between the ITO: Barrage till the ILFS-NOIDA Link Bridge in the Soutft and further beyond, in the Southern direction, as the river flows past the city of Delhi and enters the State of Uttar Pradesh in the Southern., boundary of the city of Delhi.

12 The stretch with which we are concei ned in the instant Land Acquisition Appeals, is the stretch of the river as it crosses NH-24 (at the popular bridge called the Nizamuddin Budge o\/er the river Yamuna) and procedstowards the South, crossing lands of village Behlolpur Khadar, Kulokari, Khizrabad, Jogabai, Okhla, jasola and Madanpur Khadar, all of which lie on the Western bank of the river and Nangli Rdjapur and Chuck Chilla, which He on the Eastern bank of the river. Graphically reproduced the plan prepared by the learned Reference Court on inspection carried on

21.11.2006,, and to'be found in the record of [AC No.2/1998 B/7ppa/ Sinqh Vs. UO/ & Anr. (in respect of village Nangli Rajapur) would be as Under:-

Pege5b'f32 U ( (j \ fit ti / U - t•tt t,T • \- .. • \ • / ! 1:1 • •. ftp t fr •r - • •S • - Page6oi32 'River Bed' is defined as the area, over which the river flows and denotes the area which, in the ordinary or regular course of nature, is covered by the waters of the river. 'Flood Plain' is the land adjacent to a river, which because of its level topography, floods when the river overflows. The lands which are subject matter of acquisition in the instant appeals, lie in the Flood Plain area of. river Yarnuna, and mostly.in the Western bank and except for a few patches, where agricultural activities can be undertaken, the land is mostly grassland, bushy and shrub Vegetation. The aquatic vegeLation is very poor in this stretch due to degraded water quality of ri\/er Yamuna. The lands are comprised in the revenue estate of village Kilokari, Khizrabad and Nangli Rajapur. Flood discharge and levels, at different gauging . . stations in river Yamuna, indicate flooding of the area whenever monsoon is nornial or in excess. . As would be evident from the plan of the area prepared by the learned Reference Court, and as extracted hereinabove by me, the lands with which 'I am concerned is between the river bank and the Forward Bund. It has been graphically narrated by the learned Reference Court in its report dated 22.11.2006, relevant extract whereof would read as under:- "The spot inspection has been conducted in terms of order dated 13.11.06 in the presence of officials from DDA (Sh. M.M.. Rao, Director L.M.), Sh. S.K. Singh (LAC • South), Sh. Raj Shekhar (D.C. South), Sh. Atul Kumar (Ex. Engineer, Irrigation &' Flood Control Departmert) who are accompanied with other team of officials from . . . , • Page 7 of.32 respective departments. Counsel for the petitioners as well as respondents are also present. The officials led to embankment of River Yamuna in village Nangli Rajapur via Marginal Bund Road through 'Pantoon Road'. A rough sketch (i.e. Site plan by approximation) prepared by officials of DDA to give a broad idea of the location of villages has been handed over. The same is Annexure 1 and clearly depicts the location of villages Behlolpur Khadar, Nangli Rajapur, Kilokari, Chuck Chilla, Khizrabad, Jogabai, Okhla, Jasol'a • and Madanpur Khadar. A copy of site plan indicating the khasra no's of village Nanglirazapur has been handed over by officials of LAC South. The officials explained at, site that some of the Khasra no's which are sub-merged or likely to be sub-merged and are adjaceht to water stream has been de-notified while the others had been acquired. The same are reflected in different shades in the site plan (Annexure II). The officials informed that the acquired land extended upto 500 metres and may be more frorri the stream of water which was flowing currently. The land on both sides at the 'site, spot' appeared to be under cultivation. However, it is oertinent to note that ' officials from Irrigation and Flood Control Department informed that as and when the water level in river Yamuna crosses a mark of 204.83, the land gets covered with water, depending on amount of discharge of water in:the river. It was also pointed out that owing to aforesaid reasons no development has been permitted from 'Marginal Bund Road' dil embankment of River Yamuna (As depicted in Annexure - I). It was observed that there was no substantial deveIopmnt except that land appears to be utilized near the site for agricultural purpose. Thereafter the officials led to show, the approximate location of Jand of village Kilokari, Behlopur and Khizrabad from Ring Road and D.N.D. Road. The officials showed that no activity/development on the land near to the embankment could be undertaken except for agricultural activity. . The spot inspection Page 8 o132 Li commenced at about 2.40 p.m. and has been completed at about 4;45 p.m. Sd- • (ANOOPKUMARMENDIRA11IA) - ADDL. DISTRICIJUDGE: DELHI

22.11.2006"

¶18It may be highlighted that the Forward Bund, as the very name suggests, is the raised embankment to contain the flooded river as and when it overflows, so that the city of Delhi is not inundated with water, during monsoon It is obvious that due to this, there is hardly any construction acti\/ity in the area in question, for the reason most of it is low lying area and is flood prone. In the words of the learned Reference Court, the topology, nature and potential for utilization of the subject lands may be rproduced by me. It reads as under:- "As per notification dated .23.6.89 placed on record. about 3500 Hectares of land starting from a point 1 km. upstream, Wazirabad Barrage road till it outs the boundary of Union Territory was proposed to be acquired • for channelization of river Yamuna.. The purpose of the project itself suggests the land in the river bed adjacent to the existing stream of water was to be acquired. The acquired land being in river bed on forward bund as such can be safely inferred to be covered during some parts of the year with water and may be cultivable for other parts of the year. No evidence has been led by the petitioners to show that the land was not situated in the forward bund area. Considering the situatioh of the land in.the river bed it may not be capable of being utilized as • a normal agricultural land or building site despite the village being urbanized and cannot be compared with land other than situated in river bed in village Kilokari. The development may have taken place in and around village Kilokari but the same cannot change the handicaps of land situated in a forward bund area owing LA APP 59/2007 & connected to its typical location and likelihood of flooding during the mons.00ns I may also observe that a mere construction of an isolated boundary wall or a solitary cL/ temple without indicating the• nature of construction cannot lead to an inference that the land could be used as a' building site or could be compared to land falling outside the forward bund area. The value of land as such needs to be assess'd. by this Court considering the aforesaid factors."

19., The quote hereinabove extracted by. me is from the • reference 'order dated 18.10.2006 in LAC No.1/2003 titled Bed Rem • Vs. UO/ & Anr. By virtue of a notification dated 23.6.1989 issued under Section 4 of the Land AcqUisition Act 1894, a \/ast track of land ad-measuring 3500'hectares was proposed to be acquiredat public expense, for a public purpose, namely, 'Channelization of Yamuna River'. Lands, of various villages were covered by' the said notification and needless to state included lands comprised in the revenue estate of vilIae Khizrabad, Kilokari and Nangli Rajapur. It • may be clarified that not all agricultural lands in. the revenue. estate of said 3 villages were notified for the proposed acquisition Only the lands which were between the Forward Bund and the I ivei Yamuna and as stand graphically described by the learned judge and as extracted hereinabove in para 17, were the ones which were proposed to be acquired . . ' • • The notification in question was f,ollowed by a declaration issued under Section 6 of the Land Acquisition Act • • 1894 on 22.06.1990 wherein the area and the Khasra number in each village in respect whereof the notification was issued were detailed. ' , • : 22 Pertaining to the revenue estate of village Khiziabacl subject matter of the present appeals, the Land Acquisition fl Collector announced an Award bearing No.18/1992-93. Pertaining to village Kilokari the Award. No.14/1992-93 was announced on

19.6.192 and pertaining to village Nangli Rajapur the Award No.16/1992-93 was announced on 19.6.1992.

¶23In all the awards, the Land Acquisition Collector assessed the fair market value of the subject lands for all 3 \fillages @ 27,334/- per bigha and needless to state held that the land owners would be entitled to the interest and such other statutoiy benefits as were to be paid on the compensation assessed as per the Land Acquisition Act 1894. •24. While assessing the fair market value of the lands as on

23.6.1989 i.e. the date of the notification issued under Section 4 of the Land Acquisition Act 1894, the Land Acquisition Collector took into consideration various registered sale deds reflecting the . stated price and therefrom computed that the average pi ice of the land would cohie to T18,736/7 per bigha:. But, noting that vide Office Order dted 3.5.1990 the Government of Delhi had notified the minimum price of agricultural land in the Union Territory of Delhi having 2 rates; 4,50,000I per, acre for agricultural lands and 1,50,000/- per acre for land situated in the river bed, since the notification under Section 4:with which he was concerned was dated 23.6.1989, depressed, by discounting the price by 15% per annum and concluded by holding that thefair market price as of

23.6.1989 would be 27,344/- per big ha'. This price determined for the land in village Kilokari was held to be price Payable for the acquired land in the other 2 villages as well for the reason the Land Acquisitidn collector assessed the compensation on the minimum, price notified by the Government itself as on 3.5:1990 for the lnds situated in the riverbed. 25 Dissatisfied with the assessment made by the Land Acquisition Collector, the appellants herein sought reference undei Section 18 of the Land Acquisition Act 1894,, which was referred to the Reference Court as per Section 18 of the Act. The learned. Reference Court, after framing the issues in the reference before it and after permitting the parties to lead evidence in support of their claim, disposed of the iefetences made, by and under various orders fixing the fair market price at 89,600/- per bigha for the acquired lands. . . . I hote that the reasoning of the learned . Reference Court is pari-materia in each order. The record of the learned Reference Court shows that before making the assessment, vide order dated 13.11.2006, it ,n,i rI fk ,nikrf LJI L1L1 LI IlL LII LL)UI L VVLJLIILA II IJLL LI IL I ILA I IULIL VVI j Jj was deemed to be given to the parties as per the order. Thereafter, in the presence of the learned counsel for such parties who chose to be present at the inspection and in tile presence of the representative of the Land Acquisition Collector and DDA the learned Judge madesite visit on 22.11.2006 and prepared a spot inspection report and a . site plan, both of which have been extracted byrne hereinabove in para 12 and 17 above. It may be noted that the learned judge took various photographs Which are placed in AC No.2/1998 Bhop/ S/ngh Vs. [10/ & Anr. and the same show that the lands are low lying lands LA.APP.59/2007 & conncted and are, as described by the learhed judge in the report vvhich I • have extracted in para 17 hereinabOve.

• It is not in dispute that the land in question,, falls in an " area which is between the river Yamuna and Ring Road Since I rn, with consent of learned counsel for the parties treating LA • App.No:59/2007 as the lead matter, it would be rlevant to note that the appellant thereof Bed Ram,.appeared in the witness box as PW-7 before the Reference Court, and admitted in his cross-examination that 'except for a petrol pump and the two shops, there is no abadi around the land It is also admitted that there is a naa/a" (drain) in village Kilokad. He admitted that since construction was not allowed by the Government, no other construction could come up. Various documents were proved before the learned Reference Court by various parties and find a , mention in the varidus orders passed by the learned Reference Court, but I need not note the' same because, before me, while arguing the appeals learned for the into deed counsel parties pressed aid only one sale dated 1.7.3.1988, Ex.P'W-3/1 in the reference sought by Bd Ram. Besides, ,Iea'rn,ed counsel relied upon 'the decision reported as Tindey &,Ors Vs; Un/on of/nd/a & Anr. 2000 (54) DRJ 384 (DB), wherein a Division Bench of this Court assessed the market \/alue for the land situate in village Khizrabad acquired pursuant to a' notification dated 10.05.1976 and assessed the compensation @ 35,0001-per bigha as of 10.5.1976. I may highlight that land - which was subject matter of consideration in TIndeys case (supra) " was saline land- (sa/abi - and was acquired for purposes of constructing a pilot cut in the reac ,h from Nizrnudding Bridge to LA.APP59/2007 & connected '' . ' Okhla Weir. Learned counsel also relied uponi the decision reported as Diwan Barn Swaroop & Ors Vs. Union of/nd/a 1992 (48) DLI 600 perusal whereof shows that the land sitate in village Khizrabad was acquired pursuant to •a notification dated

03.06.1961 and was assessed at 12,500/- per bigha. • 32. I may highlight that the decision in Diwan Ram Swaroop's case (supra) was the basis on which decision was premised in Tindeys case (supra). In TIndey's case, taking the land.. value at 12,500/ per bigha as of 3.6.1961 by giving an arnuaI increment of 12% but denying a progressive increase, the sum worked out was 35,000/- per bigha. With reference to the decisiob reported as Bedi Ram Vs. UOI & Anr 2001 (93) DLI 150 and a decision dated 4.2.2011 disposing of RFA No.582/1994 Sal Krishan Kapahi Vs. UO/ & Anr. as also a decision of the Supreme Court reported as Nand Ram Vs. State of Haryana iT 1988 (4) SC .260, it was urged in theaI.terhative, that if the price as per sale P .deed dated 17.3.1988 was n.ot to be adopted and the sale price determired in Diwan Ham Swaroop's case was taken to be base price, percentae increase adopted by the learned Trial judge as • . 12% be adopted but the benefit of the progressive increase should be given and in respect of the plea I must note that learned counsel made a concession that as was done in Bed! Ra/'s case, initial increase could be 6% per annum followed by 10% per • • annum and then 12% per anhum, with the cut off years being • 1959-1965 (6%), 1966-1973 (10%) and 1974 onwards (12%).

¶33Pressing the first argJrnent that the sale deed dated

17.3.1988 should be adopted by this Court to determine the fair market value as of 23.4.1989, learned counsel heavily relied upon • . • the decision of the Supreme Court reported as G.Pref77a Vs. Spec/al Tehs!ldar (2010) 12 SCC 502 and the decision reported as 0n7 Pakash Vs. State of Haryana & Ors. 2011 (IV)AD (SC) 383 and urged that as held therein the development around the place 'vhich had taken place over the years, where the subject lands were situate, had to be factored in while determining the Iaii market value of the acquired lands. Relying upon the testimony of Devi Ram PW-6 in the reference pertaining to Bed Ram, the Patwari.of village Kilokari, learned counsel argued that he admitted that the land in question is situated ma developed area, havinq building potentiality, inasmuch as the land situated in village Kilokari and Khizrabad were acquired for the planned development of Delhi in the years 195 .9 and 1961 and on which acquired lands DDA had developed the residential colonies named Friends Colony', 'Kalindi Colony' and 'Maharani Bagh'. It was thus urged that the area in question had great potentiality; the same being a / reection of the 3 colonies having come up on the earlier acquired lands. Pertaining to the sale deed dated 17.3.1988, Ex.PW3l1, referred to by me hereinabove, it was argued that the vendor and venclee of the sale deed were not the residents of the area in question and thus, the sale transacted between them had to be taken as the basis for determining the market value of the acquired land and could not be ignored by labeling the same as a tainted document and not to be ignored as per the reasoning of the learned Trialjudge, which reasoning is as under:- "It may further be observed that, there is no evidence to reflect that thre could have been an increase in prices of land as per sale deed dated 17.3.88 @ Rs. 2,07,500 per bigha relied by petitioner when compared - . . . ' ____ ....................................... ... . .... I :..----------------. . . . . . cv with Ex.RI (Rs.43,2001-per bigha) or mi. price fhed w.e.f. 27.4.90 as per polity within a short span of time. It is a known fact that the scheme of acquisition is known to the villages and residents much before the actual notification u/s 4 is issued as numerous surveys are made prior to any acquisition proceedings. As such the execution, of sale deed at enhanced rates to claim increased compensation cannot be ruled out. For the aforesaid reasons sale deed dated 17.3.88 relied by petitioner does not appearto be reliable to assess the valueof land." 34 I have extracted the quote herein above born the decision dated 25.9.2006 in LAC No.1/2003 'Bed Ran711s. tIC! & Anr Pertaining to village Kilokari, an additional argument was advanced which was predicated on the decision dated 10 10 1984 in RFA No 117/1974 SmtAngoori Dcvi vs (JO! & Oi • Wherein pertaining to a notification dated 13.11.1959 fair market value assessed by this Court for lands in village Kilokari was • I 26,000/- per bigha as against 12,500/- per bigha for the land in village Khizrabad wherein in D/wan Ram Swarup's case (supra) compensation assessed as of the date 3 6 1961 was 12 500/- It was thus urged that it was apparent that land in village l(ilokari was more valuable than the reSt and for which it was urged that Kilokari needs to bedealt'with on a better footing. Per contra, Shri Sanjay Poddar, Standing Counsel for the Land Acquisition Collector urged that the Trial Court had visited the spot and had acquired spot knowledge about the land and its topography, and has recorded a categorical finding of fact to the effect that the acquired lnds are in the rlver bed on Forward Bund and as such, can safely be infered to be covered during some part LA APP 59/2007 & connected of the year with water and may be cultivable for other paits of the year. Since the lands fall in the river bed, they may not be capable of being utilized as a normal agdculturl land and in any case are unsuitable to be built upon The development may have taken in and around village Kilokari and village Khizrabad, but the same was on the lands on the western side of Ring Road, instant lands are on the eastern side of Ring Road; the earlier acquired lands were not low lying lands. They were just like any other ordinary agricultural, lands. Counsel stated that the situational disadvantage of the instant lands was writ apparent and that mere isolated construction of a petrol pump and 2 unauthorized shops to which Sh.Bed Ram had referred to in his testimony were of no significance. Learned counsel highlighted that the witnesses had admitted that no construction was permissible on the land and thus urged that merelybecause 3 colonies: Maharani Bagh, Kalindi Colony and New Friends Colony had come up on the acquired lands mainly of village Kilokari and partly of village Khizrabad could not impact the potentiality of the instant lands which were qualitatively disadvantageously situated, being on the eastern side of Ring Road and' across the Forward Bund spanning the area between the ForwardBund and the river Yamuna. ,

¶37Learned counsel clarifiedthat even ifit be held that the learned Trial Judge has inadvertently referred to as the subject lands as forming the River Bed rather than the Flood Plain land, but hasten to add that this does not impact the reasoning of the learned Trial Judge inasmuch asthe land being the Hood Plain land , was prone to water-logging and Indeed this was the reason why hardly any crop was grown on the lands and the fact that the ' Pagel7of3Z / (2/1 natural vegetation on the land being grass land, bushy and shrub vegetation.

¶38In reply to the arguments pertaining to the progressive increase to be effected while determining the fair market value of the land, Shri Sanjay Poddar relied upon the latest judgment of the Supreme Court reported as General Manager, Oil & Natural Gas corporation Ltd Vs. Rameshbhai /ivanbhái Pate! & Anc 2008 (14) 5CC 745 and highlighted paragraphs 13 and 14thereof. 39 Learned counsel highlighted that the solitaiy sale deed relied upon i e the sale deed dated 17 03 1988 executed by Shii Ranjit Singh S/o Shri Badlu Ram in favour of Shri Vinod Kurnai Sb Shri Kedar Nath, whereby a parcel of land ad-measuring 1 bigha 1 biswa was sold for a sum of 2,07,500/-, 'the recitals of the same would show that 40,000/- was paid in advance and balance i.e. 1,67,500/- was to be paid at the time of registration of the sale deed The sale deed did not make it clear as to what was the mode of payment of balance sale consideration Counsel ) highlighted that the sale deed was executed a few months prior to the date of the notification in question and justified the reasoning of the learned Trial judge which was questioned by the learned counsel,, which reasoning I have extracted in pra 33 above.. Learned counsel further urged that except for this solitaiy sale deed no other evidence in the shape of voluntary sale tiansaction has been placed on record by the appel!ants/land-owners. Counsel highlighted that in rebuttal, the Union of India submitted 4 sale deeds., Ex.R-1 to E.R-4 which were also considered at.the time of announcing the awards which showed that'the average sale price was 18,736/- per bigha. Counsel highlighted that 2 sale deeds out '' , Page 18 o132 3O of these 4 were executed by the land-owners/claimants namely, Smt Angoori Devi Counsel urged that the paucity of sale deeds showed paucity of sale transactions and thus there was no demanct for the land in question and thus concluded that the land did 101 have any potentiality to command higher value as claimed by the aooellants. Learned counsel contended that the learned Reference -- ' -- I --- - -- - - ------ - - Court has rightly rejected the solitary sale-deed relied upon by the appellants Learned counsel highlighted that such types of documents are created not only for the pui poses of inflating the pi ice, but also to secure alternative plots inasmuch as tile Large Scale Acquisition Policy for Agricultural Lands in Delhi requires that the individual whose land is acquired must have more than II bigha land to be entitled to a residential plot in a developed colony. Learned counsel highlighted tile decision of the Supreme Court reported as Mohammad Raofuddin Vs Land Acquisition - - - - Officer 2009(14) SCC 367, wherein it was observed as under:- in ShajiKuriakose v. Indian Oil corpn. Ltd. this - Court had observed as under: (SCC pp. 652-53, para 3)- - --.- ---. -. - '3. .- While fixing the market value of. the

• - acquired land, comparable sales method of valuation-is preferred than other methods of - - valuation of land such as capitlisation of net income method or expert opinion method. ComparBble sales method of valuation is - - preferred becuse it furnishes the evidence for determination -of the market value of the - - - - - - - acquired Fand at which a willing purchaser wbuld pay for the acquired land if it had been sold in the open market at the time of issue of notification -- - - - -- un -der Section 4 of the Act. However, comparable-sales method of valuation of land for fixing the LAAPP59/2007&connected Pagel9of3Z - U-market value of the acquired land Js not always conclusive. There are certain factors which are required to be fulfilled and on fulfilment of those 41p) I • . factors the compensation can be awarded, • according to the value of the land reflected in the sales.'The factors laid down inter alia' are: (1) the sale must be a genuine transaction, (2) that the sale deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act, (3) that the land • covered by the sale must be in the vicinity of the acuired land, (4) that the land covered by the sales must be similar to the acquired land, and

(5) that the size, of plot of the land covered by the sales be comparable to the land acquired. If all these factors are satisfied, 'then there is no reason why the sale value of the land covered by the sales be. not given, for the acquired land. However, if there is a dissimilarity in regard to locality, shape, site or nature. of land between land covered by sales and land acquired, it is open to the court to proportionately reduce the compensation for acquired, land than what is reflected in the sales depending upor the disadvantages attached with the acquired land."

¶40It was argued by. Mr.Sanjay Poddar and for vvhich learned counsel relied upon the dedsion of the Supreme Courl reported as Ka.nwärS/nqh.& Ors. vs. Un/on of/nd/a 1998 (.8) SCC 136, that the lands situated in varibus villages acquired through the same notification cannot be given the same' market \/a.Iue unless and until it is proved that the situation and pOtentiality of the 'land in 2 different villages are the same. To this effect, he pointed out 'thai even in A/and Rarn"s'case ( upra),, relied upon by the appellants, it was held that the similarly situated land in a village is to be given the same price and not all. Thus, it was argued that unless and until the potentiality and situation of the , land sought to be acquired are similar to the land sought to be - ompared, a uniform rate cannot be awarded. This argument of learned counsel I am noting was in response to the submission made that the solitary sale deed pertaining to village Kilokari be • treated as reflective of the market value of land.s in village • Khizrabad and village Nangli Razapur. Mr.Sanjay Poddar further argued that while assessing the market value of the acquired lands, the principle, as laid down in Muhammad RaOftlddiWS case supra is to be followed; namely, (i) the court is duty bound to ensure that the compensation determined is just and fair not only to the individual whose propertyis acquired, but also to the public which has to pay for it; and (ii) the land :situated on the frontage having special advantages cannot be treated at par with th land • situated in the interior undeveloped area. Further, the court is required to act as a willing and, infored buyer and seller, meaning thereby, such a buyer and seller must be uraffected by the special needs of a particular purchase and must have the information required by a prudent person relating to the land sought to he acquired. Counsel highlightd that the learned Trial Court, which had visited the site has acted as an informed buyer and seller while recording the. finding about the nature of the land, which finding cannot be disturbed without any cogent evidence.

¶41Mr.Ajay Verma, learned counsel for DDA while adopting the arguments advanced by Mr.Sanjai Poddar, added that the land acquired for residential colonies was not the purpose under the present notification and that as held in the decision reported as Executive Director vs. Sharat Chandra B/so! 2000 (6) 5CC 326, I lands can be classified as situted near a river or at a distane there-from i.e. within a village belting can be esorted to.

¶42In rejoinder, learned counsel for the appellants, submitting rejoinder submissions through Mr.B.P.Gupta, Advocate relied upon the decision of this court reported as Saldev Singh Dhil/on & Ors. Vs. Union of India & Ors 2005 (121) P LT 606, a id with reference to paragraphs 23 and 70 thereof contended that in the said decision, pertaining to the instant lands, where the challenge to the acquisition was that, there was no ground to invoke the urgeny clause i.e. Section 17(1) and 17(4) of the Land Acquisition Act 1894 thereby denying the right of hearing to the add-owners affected under Section 5(A) of the Act, the respondents had cited the looming threat of unauthorizd colonization as the reason to deny such right and therefrom counsel sought to infer that the lands had a potentiality for development and colonization. MrL.C.Chechi, learned cQunsei supplemented, with reference to a notification dated 25.1.1995 issued under. Section 48(2) of the Land Acquisition Act 1894 read with an order dated 5.11.2004, both of which were not filed before the learned' Reference Court, but were taken on record as additional evidence pursuanttO an application filed under Order 41 Rule 27 of the Code of Civil Procedure, and urged thaL the notification and the order prove that the lands which were under the River Bed were de-notified from acquisition as they were held not required for the purpose for which .the acquisition was made, and therefrom counsel urged that it was apparent that the remaining lands were not 'River Bed'. - ' . I Having considered the submissions urged by learned counsel for the parties I propose to deal with the same after noting the decision of the Supreme Court reported as (2008) 14 SCC 745 Genera! Manager Oil & Natural Gas orporat//7 Ltd. Vs. Ram eshbhai /tvanbhai Pate! & Anr. The matter reached the Supreme Court, on the facts that an area ad-measuring 13 hectares and 17 ares, in village ljapura within District Mehsana, Gujarat was acquired for an ONGC installation, for which the notification under Section 4 of the Land Acquisition Act 1894 was Jssued on 15.9.1992. The Land Acquisition Collector determined the fair markel value of the land as of 15.9.1992 at Z2.10 per square meter. On a reference sought, the Reference Court enhanced the compensation by deternining the fair market value at Z17.10 per square meter. The reasoning of the Reference Court was that in the absence of any sale deeds in the village in question, the only material was Ex.15, being an award pertaining to a rotification dated 6.1.1987whereuhder [and in a neighbouring village named Santhal was assessed to a fair compensation at the rate of Z10 per square meter, as also Ex.16, which related to another land near the village ljapura i.e, land in village Chalsana, of which fair compensation was also assessed at 10 per square meter pertaining to a notification datd 31.7.1986. Thus, taking Z10 per square meter to be fair market value for the years 1986 and 1987, since notification being considered was dated 15.9.1992, the Reference COurt increased, the \/alue, cumulatively at the rate of 10% per annum and thereafter reduced 2 per square meler on account of distance factor between vHlage LA.APP.59,/2007 & connected ' . ljaiiura and other 2 villages, thereby arriving at the figure of 717.10. per square meter. The High Court dismissed the appeal against the decision of the Reference Court. This iS how the matter reached the Supreme'Court. . p

¶45The Supreme Court opined, on the facts of the said case, that in the absence of any evidence relating to sale transactions in village Ijapura and having regard to the proximity of village Santhal with the acquired lands of village Ijapura, it would be reasonable to determine the markef valu.e of lands in village Ijapura with reference to the'value of land in village Santhal and village Chalsana. Thus, the Supreme Court held that it would be reasonable to hold that in the year 1987, value of land in village Ijapura was the same as in village Santhal and this would mean that as of the 'ea 1987,. value of land in village Ijapura was 710 persquaremeter. The Supreme Court thereafter considered the second question; as to what should, be the percentage increase to be given per annum aind the further, question whether the same should be cumulative i.e. progressive or simple. With reference to the decisions reported as (1992) 4 SCC 659 Ran/it SinQi7. Vs. UTof chand/qarh, (2004) 2 5CC 283 Kr/sh/ Lltpadan fr/and! Sam/ti Vs, B/p/n Kumar and (2005) 9 SCC :594 Land Acquisit/on Offier and Revenue DivIsional Officer Vs. Raman/ulu, where 'Courts had accepted escalation in market value of land at the relevant time from percentages ranging between 10% to. 15% per annum, the Supreme CQurt held that one has to be careful with respect to:' Whether the land was comprised in an urban, semi-urban or a rural LA.APP.59/2007 & connected' 4,3 area In para 13 and 14 of its opinion, the Supieme Couit • observed as under: "13. Primarily, the increase in land prices depends on [our factors: situation of the land; nature of development in surrounding area 1 availability of land for development in the area, and the demand for larid in the area. In rural areas, unless there is any prospect of development in the vicinity, increase in prices would be slow, steady and gradual, without any sudden spurts or jUmps. On the other hand, in urban or semi-urban areas, where the development is faster, where the demand for land is high and where there is construction activity all aound, the escalation in market price is at a much higher rate, as. compared to rural areas. In some pockets in big cities, due to rapid development and high demand for land, the escalations in prices have touched even 30% to 50 0/6 or more per year, during nineties • 14; On the other exfreme, in remote rural area where there was no chanceof any development and hardly and buyers, the prices stagnated ..for years or rose marginally at a • nominal rate of 1% or2% per annumn. There is thus, a significant difference in increases in market value of lands in # urban/semi-urban areas and increases in market \falue of • lands in the rural areas. Therefore, if the increase in market value in urban/semi-urban areas is about lO°/p or 15% per annumn, the correspondirg increases in rural areas would at • best be only around half of it, that is,about 5% tO 7.5% per annum. This rule of thumb refers to the general trend in the ninetites, to be adopted in the abence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, or any specific evidence relating to the actual increase in prices, • then the increase to be applied wo,u.Id depend upon the same."

4.6. Thereafter,: the Supreme 'Court. • noted that the acquisition in Ran/it Singh's case (supra), pertained to lands on which Sector 41 in the city of Chandigarh was developed i.e. the land was abutting the urban city of Chandigarh. • The land in Sip/n L*APP.59/2007 & connected Page 25 of 32 . I Kumas case (supra) was adjoining the Badaun - Delhi Highway • • fk Id ,KirH ic cIIHiQrt / ' d[IU VVdS III d - iliI - UI Udi dl :c ci IU Li I IcIi matter of consideration in Raman/u/s case (supra) pertained to the 3 rd phase development Of the existing and established industrial estate in the urban area. It was in this context that the Supreme Court expressed an opinion, in para'13 and 14 of its decision, as extracted hereinabove The observations in para 14 of the decision pertaining I to remote rural areas are equally applicable where the land is such that there is hardly any chance of any development and hardly any buyer to purchase the land and hence prices stagnating. Needless to state, the situation of. the land and its surrounding areas, including availability, of land in the area and demand thereof are the factors which lower prices in rural areas and these would equally be the factors which would depress Price rise even if the land is in an urban.area, but isso placed in the dry, that its potential for development is meager. Marshy lands along river banks, lands in Flood Plain, prone to flooding, would be in thi.s category, even if it is in an urban or a serri'i-urban area. - Reverting back to the decision of the Supreme Court in. Rarnesh Shal's case (supra), highlighting that for lands where potentiality was established, a safe thumb rule held applicable by the Court, could be to increse the market value by 10% to 15% per annum, but this thumb rule was expressly made subject to a variation where p'eculiar,features were available in the form of evidence to increase the growth up to even 30% per annum or - depress the same to half i.e. 5% to 7.5% per annum. ' . 51 Applying the aforesaid principles it was obseived that since the subject lands were in a rural area and there was no d\Ielopment activity in the area for a long period of time, appropriate escalation per annum should be 7 5% and no more

¶52Stating that the escalations should be at a cumulative rate i.e; progressively and not at a flat rate, the Supreme Court, in para 20 and 21 of its opinion, held that commencing with the rate of10/- per square meter in the year 1987 and according benefit of cumulative rate of increase to be 7.5% per year, the price would rise to T14.35 per square meter in the year 1992 and as against deducting 2/- on account of distance factor a's done by tle Court of Reference and as upheld by the High Court, since the Supreme Court was applying a lower percentage cumulative rate of escalation, the deduction effected was T1.35 per square meter and accordingly the fair market value determined was 13/- per square meter. • .

¶53With respect to the sale deed dated 17.3.1988 it has to • be highlighted that apart from the reasoning given by the learned Trial Judge there are good further reasoning to ignore the same. and 1 have highlighted the same .vhi1e noting the argument of Sh.Sanjay Poddar Advocate in .para 39 above and since I am • acc.epting the entire reasoning of the argument I ned nbt're-state the same as my reasons, but lest I am dccsed of being a copy ca and not evidencing that I have independently applied my mind to the argument I record that a-solitary sale transaction would be an unsafe measure since a solitary waIlow does notmean the onset of Spring and that a solitary tree is no indication that one has reached the voods. I need not pen down the catea of judgments enned in this Court by learned Judges wherein a little in. excess of 1 bigha of agricultural land was acquired a few days prior or a few i1 months ririor to R nronosed acquisition to avail the henefit nf an C. I. E-M alternative residential plot, in a developed area at a concessiQnal price as per the Large Scale Acquisition Policy for Agricultural Lands in Delhi. It ssums importance that under the sale deed 1 bigha.and 1 biswa of land was transacted on 173.1988. As I have highlighted herein above, issue of re-develdpment of the river Yamuna was being considered for a long period of time and there is every possibility of Sh.Vinod Kumar being a smart man who knew somebody in the corridors'of power and got wind of.the proposed acquisition. I wonder what meaningful agricultural activity can be carried on by a prson on 1 bigha and l'biswa land? That apart, as observed by the Supreme Court in the decision reported as Un/on of/nd/a vs. Ram Pha/20d3 (10) 5CC 166, while" assessing the value of a large tract of land sftuated in \/arious villages a solitary sale transaction of a small parcel of land should be ignored as it would be unsafe to assess the market value of a large tract of land based thereon. The law relating to sampling tells us that for a sample to be representative of the whole ft must be a fair percentage of the 'vhole and not a trifle. I reiterate my reasoning in paras 47.and 48 ãboe..

¶54The . question vould be •whether the percentage increased worked out by the learned, Trial Judge i.e. 12% per annum• on a flat rate with reference to the land price 35,0'00/- per bigha as determined in , T/ndey's case (supra), which I. note pertained to a notification dated 10.5.1976 for lands in village Khizrabad (land being salabi and thus a guidance to me of being in LA.APP;59/2007 & connected •. • the flood plain of the river) is correct and whether the same has to be applied progressively and not at the flat rate.

¶55I have already held herein above that the instant lands are on the Flood Plain, not on the river bed as held by the learned Reference Court but the same would make no difference inasmuch as being on the flood plain of the river, the land is low lying shallow, mostly grassland, buhy and with shrub vegetation. The aquatic vegetation is very poor and the area gets flooded whenever the monsoon is normal or in excess. The learned Reference Court has highlighted the topology, of the land with reference to a personal visif and I accept the same. The instant lands are situationally disadvantaged and are qualitativei different, being inferior, to other lands in the reveHue estate of village Kilokari and Khizrabad which were acquired earlier on, on which the colonies of Maharani Bagh Kalindi Colony and New Friends Colony were colonized. It is for this reason the decision in • 1 . R•FA N 0.117/1974 Sn7t, Angoori Devi vs. UO/wherein pertaining to a notification dated 13 11 1959 for land in \fillage Kilokai i faii market value assessed was 26,000/- per bigha cannot be the basis for fixing the fair market value of the subject lands I highlight that pertainuig to village Khiziabad for similar land pertaining to a notification dated 10.5.1976, in T/ndey case (supra) fair market value assessed as of said date was 35,000/ per bigha. The 'argument of Sh.L.C.Chechj Advocate, noted in paragraph 42 above (last portion), needs to be dealt with here. • The'ndtification releasing lands are the 'River Bed' and the 'Flood Plain'. It is apparent that the authorities as also the Reference Court have used the expression 'River ed' and 'Flood Plain' as • • / interchangeable, not realizing that the two are different; and as explained in para 13 above. The subject lands are 'Flood Plain' and not 'River Bed' and as held by me in paras 47 and 48 above, the conequence of the lands being 'Flood Plain' have to follpw.

¶56On. the principle of perentage incräse as per Bed/ Rain's case(supra), relied upon by learned counsel for the land-owners, wherein progressive increase for various stretches of years wa applied at 10% and 12% per annum, suffice would it be to state that the same was on the basis of evidence of such an no ease I am guided on the issue by the decision of the Supi erne Court in Ramesh Sha/ case (supra) wherein the Supreme Court cautioned the Courts that. while . applying the thunb rule of percentage increase in the price of lands, one must not be oblivious of pPsitive evidence to show a greater price rise or lack of any evidence of sales, meaning thereby prices being stagnant oi-increasing marginally by 1% or 2% per annum and in such cases pertaining to rural areas the thumb rule being to take the price increase between 5% to 7.5% per.annum. I have already held herein above that the peculiar features, which are negatRe in character, for• the instant lands would require the thumb rule required to be adopted for rural areas as applicable to the instant lands on the principles have extracted in Rameshbhai5 case (supra). I may highlight thatthe decision of a learned Single Judge of this Court in Ba/dev S!ngh Dhi//on case (supra), which was relied upon by learned counsel for the appellants in paia 73 thereof, brings out that there is no development potential in the land save and except to develop it as a green area after channelizing the river Yamu.na and use the same for people to •. gage 30 of 32 stroll around and enjoy the cool breeze after toiling hard in the hot summer: not more than 15% of the area is capable of a meaninful use. But, I hasten to add that, the futuristic use of a land after acquisition would notbe.a basis to infer a fair market value, which is the mandate of Section 24 of the Land Acquisition At 1894. S Whatever be the percentage increase per annum in the value of the land,as per the decision in Rarneshbha! case (supra) the same has to be applied in progression. Taking into account all the factors herein above noted, of fact and of law, in my opftion the fair market value, of the instant subject lands require the same to be fixed with reference to the decision in Tindey case (supra) by taking the land value at 35,000/ per bigha as of 10.5.1976 and applying the percentage increase not at 12% per annum but at 7.5% per annum and aplying the same progressively for a period of 13 years, since the notification with which 1 . am concerned is dated 23.6.1989, I reach the figure in sum of 89,614.37 per bigha..

The learned Reference Court has determined the compensation at 89,600/- per bigha by adopting the annual price rise to be 12% but applying the same at a flat.rate. to the base rate of '35,000/- per bigha.

But, I have worked out the figure to reach the surn of 89,614.37 b commencing from the base date 10.5.1976 and applying the same for a period of 13 years which will take me to the date 10.5.1989,. I am conscious'of the fact that the notilication requires me to proceed ahead by another 43 dais and therefore LA.APP.59/2007 & 'connected I 5-' logically requiringto further enhance the sum, but noting that mathematical precision is not to be, achieved while assessing fair compensation and that if difference between dates is negligibic the same has to be ignored and thus I bring the, curtains down by according my imprimatur to the 'price determined by the learned Reference Court. ' Pertaining tothe cross objections filed by the Union of India, I note that the challenge was to the learned Trial judge holding that land value appreciated by 12% per, annum The challenge was on the ground that the poor quality, locational and otherwise, of the land did not warrant said presurription to be raised. , In view of my reasoning hereinbove dealing with the ' iival contentions pertaining to the appeals filed by the land owners, and the concluions arrived at, the inevitable consequence has to be, the, dismissal of all the cross appeals and cross / objections filed by the Union of India. . . Thus, all appeals Eis also the cross objections are dismissed, leaving the parties to bear their own costs (PRADEEP NANDAJOG) .. JUDGE JUNE 07, 2011

rnm/dk

LA.APP.59/2007 & connected ' ' ' /

IN THE HIGH COURT OF DELHIAT NEW DELHI % /udgment Reserved On: 1st /une, 2011 Judgment Delivered On: ? June, 2011 L.A.APP.802/2008 PANNA LALJAIN Appellant 1 Through: Mr.Ankitjain, Advocate. Versus UNION OF INDIA & ANR Respondents / Through: Mr.Sanjay Poddar, Advocate Mr.Ramesh Ray, Advocate and Mr.Ashish Tanwar, Advocate for UOI. Mr.Ajay Verrna, Advocate for DDA. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG Whether the Reporters of Iocatpapersmay be allowed to see the judgment? To be referred to Reporter or not? Whether the judgment should be reported in the Digest?