UOI v. Vijay Kumar & Anr

ORDER %

26.09.2011 For orders, see LA.App.No.358/2007. --I— r-~T~

PRADEEP NANDRAJOG, J. SEPTEMBER 26, 2011 • mm -11 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 DELHI % Judgment Reserved On 19 August, 2011 Judgment Delivered On 26th 5eJ2'tember, 2011 • LA.APP. .35812007 . HEM CHANDER MALIK . ..., Appellant Through: Mr. JV. Rana, Mr.Deepak Khosla, Mr.S.K.Yadav, MrS.K.Verma, Advocates Vs. UOI & OTHERS Respondents Through: Mr.Sanjay Poddar, Senior Advocate & Mr.Sanjay. Kumär •Pa.thk, M'r.Sachn Nawani, Mr.Siddharth Panda and Ms. Kaomudi Kiran, Advocates for R-1. . + LA.APP. 62/2004, ..LA.APP. 136/2b04, .LA,A.PP. 166/2004, RFA.422/2001; RFA 304/2002, RFA 44812002; 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 & Award No, 13/1996-97, Village-Shahbad :Daulatpur) • . .• .. • • . . AND •.• . . + LA.APP. 573/2009, LA.APP., 298/200; LA.APP. 599/2010, LA.APP.. 791/2010, LA.APP 378/2011, LA.APP. .396/2011 . (R&atirig to Notification under Section. 4 of the' . Land Acquisition Act 1894 dated 28.04.1995 & Award Np. 1/1998-'. 99, Village-Shahbad Daulatpir). • . . . . . AND .• .. + LAAPP 353/2008, LAAPP 354/2008, LAAPP 358/2008, • 0 LA.APP. 372/2008,: LA.APP., 524/2008, LA.APP.884/2008, LA.APP. 1000/2.008, LA.APP.. 1005/200.8 • . LA.App.No.358/2007 & conneted matters , . Page 1 of 10 . . . 1 Whether the Reporters of local papers may be allowed to see the judgment? 2 To be referred to Reporter or not? 3 Whether the judgment should be reported in the Digest? PRADEEP NAN DRAJOG, J 1 Vide three awards as afore-noted pronounced pursuant to three notifications issued under Section 4 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 time acquisitions were made as and when Rohini Phase-I, Rohini Phase-Il and Rohini Phase-Ill 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 the subject lands had acquired a building potentiality.

2 When judgment was reserved in the instant 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 & connected matteis

¶1Rithala were also acquired for the e*pansion of the Rohini Residential Scheme pursua,nt toa notification dated 21.7.199 issued under Section 4 of the Land Acquisition Act 1894 Arguments advanced in the instant appeak were the same as were advanced in the appeals pertainingto village

' Rithala and thus, since I have dealt with the arguments while pronouncing decision tQday in the appels pertaining ,to village Rithala, I ,need not repen the arguments and my reasohs deali'ngwith the same. ' , . . •. •' Suffice would it be to state that: amongst other arguments, one argument advanced was .. with respect to • , subject lands having acquLred a building potentiality. This was, one of the many, arguments advanced in the appeals 5ertaining to village Rithala.

, I had rejected all arguments save and except the one qua building potentialiy and for which reasons cojId be gathered 'from the decision pronounced ..today pertaining to village'

Rithala and the lead matter' is LA.APP.No.656/2008 Sushi! Kumar , vs. UO/ & Ors. The 'same may be treated as . incorporated by reference in the present decision. ' With reference to the decision of the: Supreme court reported as 1995 (2) SCC 305 P.RamReddy & Ors. vs. Land. Acquisition Officer, Hyderabad Urban DeveIo'rnent Authority & Ors., on the principle of subject lands having' acquired a building potentiality, but there being no reliable evidence to. translatethe potentiality into a money value, as held in the decision in PRam Reddy's case (supra), on the basis of market value determinds per actual user I. have, to give effect to building potentiality acquired, enhanced the price by 10% and ' LA.App.N.35/2007 & connected matters " Page 3 of. 10 on said basis, pertaining to thenotification dated 21 7 1993 have determined fair market value of land in village Rithala as of said date to be l,53,000/- per bigha and would highlight •0 that the said sum was arrived at on the basis that as per actual user fair market value on said date would be 1,39,026 40 per bigha 7 Giving same benefit to the subject lands and with reference to the fact that as of 21 7 1993, factoring in the benefit of building potentiality, for adjoining village Rithala I have determined fair market value at 1,53,000/-, taking the said price and the said date as the base indices, pertaining to • the notifications dated 23 12 1994 and 28.4.1995, increasing the land price, by . 10% per annum, I determine the fair market value to be 1,69,515 61 per bigha i e 8,13,674 92 per acre, rounded off to 8,13,675/- per acre as of 23 12 1994 and 1,83,390 41 per bigha or 8,80,273 96 per acre rounded off to 8,80,275/- per acre 8 Appeals by the land owners pertaining to the said two notifications are partially allowed by increasing the compensation payable as above 9 Pertaining to the notification dated 2 10 1999, it needs to be highlighted that the learned Additional District judge has determined fair market value at 12,96,455 89 per acre on the strength of the minimum price notified by the Government for agricultural lands as of 1.4.1999.

10 If I were to adopt the land price at 1,53,000/- per bigha as of 21.7.199 . 3 and increase the same by 10% per annum, as I 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 & connected matters minimum price notified by' the Government with effect from 1.4.1999. •

¶11I do not do so for the reason, in my judgment delivered on 23.8.2011 deciding a batch of appeals, lead matter being LA APP No 266/2008 Ia! Singh vs UQI & Anr, discussing the notifications issued by the Goverhment of . Delhi from time to time enhancing' market value of aricultural láhds and decisions by Courts on the issue'ofmarket value of 'agricultural' lands on various dates and in particular the decision of a Division Bench of this Court reorted a 2006 (IV) AD (Del'hi) 13 Ga/ra! Singh vs. UQI & Anr., in paragraphs 49to 521 had'' observed as under:- , "49. I haVe, in para 37 above, noted a decision Y ' of a Division Bench of this Court ' in ' LA.APP.No.866/2005 , 'decided on 11.5.2006, • ' Mahender Singh vs. UQI & Ors. Wherein pertain in g to,' village Bawana, fair market value deterrriined as of

15.11.1996 is 1,99,904.68 per bigha which equals to ' 9,59,542.46 per acre. The said decision would be

' relevant on the issue of potentiality, an issue which I have promised tO discuss. The decision notes that the subject lands i.e. the lands with whic'h the ,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.T.Karnal Road and Rohtak Road were providing good access. to'..village Bwana and that.the Master Plan for Delhi notified in the year 1990 had indicated the la'nd 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 contemplated by Section hA of'thë

• ' ' ' LAApp.No.358/2007 & connected mafters • Delhi Development Act 1957, the lands continued to be used for, agricultural 'purposes and there was no evidence that till the year 1996 1 any land use had been actually changed and put to the use contemplated by the Master Plan. As in the instant case, where all subject lands were continuously put to agricultural use, same was the case noted in the said decision To put it pithily, the potential use of the lands giving birth to a potential land value with reference to the area being known to all as being 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 stating, 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, in futuro As already noted by me in para 36 above, as I of the date 15 11 1996, fair market value determined was 9,59,542 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. the notification dated 25.7.1997 'whre-under for agricultural lands in Delhi minim.um' price.

fixed by the Government as of .1.4.1997 was Z10 lakhs per acre. Interestingly, the same Division Bench had pronounced another judgment reported as 2006 IV AD (Delhi) 13 Ga/raf Sing/i vs. UQI &'Anr. • where perl:ai.ning to agricultural lands in village • Holambi Kalan where 940 bigha and 6 biswa land. was acquired tpursuant to the same notification dated • 15.11J996, fair market value' dete.rmined ' for • . .Cate.gory 'A' lands was 9,76,121/-. per acre and for Category 'B' lands was 9,51,121/- per acre i.e. near approximate to the fair market value of lands in village Bawana. It needs to be highlighted that while ietermining the fair market value as of 15.11.1996 in village Holambi Kalan, evidenced from . the observations of the Court in para 19 and 20of the decision, location and potentiality with reference to ' development work carried . out in .the surrounding Jands was considered. I 'would highlight that another LA App No 358/2007 & connected matters Division Bench of this Court, in another adjoining viHage in the same 'V 1 i.e. between G.T.Karnai Road and Rohtak Road, i.e. village Singhola determined fair market value as of 1 9.3.1993 @ 1,30,523/- per bigha i.e. 6,26,510.40 per acre. The decision is reported as 2004 (4) AD (Delhi) 20 Ram Chander vs. Lb/and the same Division Bench, as per the.decision reported as 111 (2004) p'LT 9,5 Hukum S/ncih vs. 1)01, pertaining to a notification . dated 14.1.1994 for • village Singhola determined fair market value @' 1,40,230/- per bigha i.e. 6,73,104/- per acre.

¶50The 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 veryimportant facts • . . relevant to.determine the growth/rise in the prices of • agricultural land in Delhi over the years commencing • from the year 1990. As of 2.7.4.1990 minimum price was 4.65 lakhs per acre which rose.to T10 lakhs per acre as of 1.4.1997 i.e. the increase is T5.35 lakhs spread over '7 years which gives us a 115.054% •increase in 7 years and the average pr.ice increase would be 16.436%. The price rise over the next 1 year is .y 11.2% and. thereafter by 11%. for the nex.t 2 years and 11.5% for the next year i.e. as of

1.4.2001. It shows that due to urbanization, between the year 1990 and 1997 prices grows fairly sharply . . and good corroborative evidence forthis would be the decision of the Division Bench of this Court in G/rafs case (supra), which I have discussed in para

4.9 above. . . . .

¶51• I need to . elaborate a little more ' with respect to the decision in Gairats case Discussing the evidence, pertaining to fair market value of • agricultural land' in village Holambi Kalan as of.

15.11.1996, in paras 9 to 17 the Court discussed the • • valuation on the basis of agricultural yield and found • that the gross return per acre per annum was • • : 95,000/- for multiple cropped land and having good • ' LA.App,No.358/2007 & connected matters ' irrigation facilities and thus capitalized the land price • at. T9.5 . lakh per acre.. Discussin the seon.d' • method of land prices of comparable lands in the • surrounding areas including potentiality, in para 19. onwards the ' Court discussed the matter with referenceo land prices in adjoining village Bhorgarh where FCI Godowns had come up and based on sale • i'nsthnces found that based on the said sale instances • . ahd 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 potentiality had been well-factored in when the Government issued the minimum price' • • . notification w.e.f. 1.4.1997, evidenced by the fact / that even with respect to sale fransactions.the Court found that as against the minimum pnce notified as of L4.1997 at Z10 ltakhs per acre, sate instances were highlighting that the price was 10,03,364/- per • .. ' • .are. . . . .

¶52. . •The decision in Mahender 5/ngh's case, ' H pertaining to village Bawana, referred to by me in para 49 above, highlights with reference to para 28 to 31 of the decision that the Master Plan for Delhi 1990 had been taken into account by the Court which was projecting residential, commercial and industrial future exploitation of agricultural land in Delhi and on the issue of potentiality 'ha.d noted that

• notwithstanding, the Master Plan so projecting and • • ' the lands theoretically acquiring a potentiality, the

• • • ' • • same had not translated into a reality evidenced by th'e.fact that till the year1996 i.e. the date of the • ' , • notification' with which the, Division . Bench was' •. concerned, virtually no development had taken place in village Bawan.a and Holambi Kalan and nobody had exploited the 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 mrket actually,grows. The decisions • in Ga/rats case and MahenderSingh's case highlight that potentiality translated itself into •a reality, between 1990 and 1997 when prices rose. by about

16.5%' per annum and thereafter the extended potentiality did not translate with the requisite momentum and the acceleration fell to between 10% per annum to 11% per annurii. 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 en'ough availability of developed lan,d and the hunger :of the market got saturated."

"The decision highlights that by the.year 1997 i.,e. when

w.e.f. '1.4.1997 minimum price determiHed by the Government • was 10,00,000/- per 'acre, building potentiality impacting the • . value of agricultural lands in Delhi 'had already been factored 'hold • in and thus I that pertaining to the notification dated'

27.10.1999 1 the land v&ue deterhined . by, the èarnéd Reference Court is correct and thus all appeals pertaining to said notification are dismissed leaving the parties to beatheir own costs. . ' '. . ' ' ' • ' ' Tosummarie:-

(a) All 'appeals pertaining to' the notification dated

23.12.1994 stand disposed of determining fair market v'alue to ' be paid to the land owners in sum of 8,136,750/- per acre together with statutory beneffts as explained by the Supeme • Court in the decision reported as 2001 (93) DLT 569 Subder vs. /pl'us proportionate costs; ,.

(b)' All appeals pertaining to the notification dated 28.4.1995' ' stand disposed of determining fair market value to be paid to • the land , owners in sum of 8,80,275/- per 'acre togethe .r with statutory benefits as explained by the Supreme Court in the

• . LA.App.No.358/2007 & connectedmaters . . ' ,. 'Page 9 of 10. . '

$-91 *IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.APP. 884/2008 UOI Appellant Through: Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Advocate for UOl. versus VIJAY KU MAR & ANR Respondents Through: None. CORAM: HON'BLE MR.JUSTICE PRADEEP NANDRAJOG