UOI v. Ajay Kumar & Anr

ORDER %

26.09.20LL For orders, see LA.App.No.358/2007. "--*:fi

PRADEEP NANDRAJOG, J. SEPTEMBER 26, ZOLL mm \ 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. , ,/"1-Ir * IN THE HIGH COURT OF DELHI AT NEW DELHI %ou + LA.APP. 358/2007 HEM CHANDER MALIK . APPellant rh ro u s h : il i: J :[*?,??, H'? ?:-:t,*'5! ]15;" ca tes , Vs. Respondents Mr.Sanjay Poddar, Senior Advocate & Mr.Sanjay Kumar Pathak, Mr.Sachin Nawani,' Mr.Siddharth Panda and Ms.K Kaomudi Kiran, Advocates for R-1. + LA.APP. 6212004, LA.APP. 13612004, LA.APP . L661200!, . RFA 4221200r, RFA 30412002, RFA 448120'02, RFA 48112002, RFA 49.712002, RFA 57212002. ' (Relating to Notification under Section 4 of the Land Acquisiton Act 1894 dated 23.!2.1994 & Award No. 13/1996-97, Village-Shahbad Daulatpur) AND + LA.APP. 573n0;Og, LA.APP, 2g}l2oro, LA.APP, 599/2010, LA.App. 7TLl2OtO, LA.APP. 378120Lr, LA.APP. tr96120Lr . (Relating to Notification und'er Section 4 of the' Land ' Acquisition'Act 1894 dated 28,04.1995 & Award No. 1/1998-99, Village-Shahbad Daulatpur) UOI & OTHERS . Through: LA.App.No .3 5812007 & connected matters i . AND + LA,APP, -35312008, LA.APP. 35412,008, LA.APP. 358/2008, LA.App. 37212008, LA^A\pp. 524l"008* , LA.APP. 88412008, LA.APp. 1000/2008f LA.APP. 1005/2008 ) Page I ofL0 r1 {Reiating to Notification under Sectign 4. -;9f t1e .1q10 Acquisition Act 1894 dated 2i/.1-0.1999 & Award No. 291200?- 03, Villag'e-Shahbad Ddulatpur) ; ' CORAM: HON'BLE MR. JUSTICE PRAQEEP NANDRAJOG tI 't ( paper$..may be dllowed l. Whether the Reporters pf local 'to'see the judgment? .i

¶2To,be referred to Reporter or not?

¶3-Whether the judgmen.t should be Digest? PRADEEP NANDRAIOG. I.

¶1' Vidb three awards as afore-noted'.prpnounced pursuant to three . notifications issued under Section 4 of the Land .h t .'Acquisition Act !894 dn 23,12.19.94, 28,4.1-995 ?nd

27.:-0.1999, agricultural lands in v,illage 'shahbad Daulatpur t,; were acquired for development of 'Rohini Pha'se-lV.. lt m.ay be --t----- h-l-:--: . ntgnllgnted that lands for th'e,colony Fohini were first acquired 161 and from ti*" to time acquisitions wgre made as and when Rohini Phase-l, Roh'ini Phase-ll and Rohini Phase-I lll were developed and colonized. The effect of what I have . highlighted is that by' the tim.e subject acquisitions wgrg effected, the surrouhding lands had not.only b.een acqriired but .had been fully developed and largely colonizbd and"thus'the I subject lands had acquir,ed a building potentiality. ;tdnt upp"uir. on .: 19,8.2011, arguments were advanced and decision w'as .reserved in Appeais pertaining to acquisition of larid in .tl.u ' ':. adjoining village Rithala. Agricultural lands of said'village repofteo tn tne .l LA.App.No .35812007 & connected matters Page? of 10 "' t1 Rithala were also acquired for the exBansion oi the Rohini Residential Scheme pursuant to a notification dated 2l'7.1993 issued unde'r Section 4 of the Land Acquisition Act 1894.

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

¶4Suffice would it be to state that, amongst other arguments, one argument advanced' was . with respect to . subject lands having acquired a. building potentiality. This was, one of the many arguments advanced in the appeals pertaining to village Rithala. : ,5. I had rejected all aiguments save and exceptthe one qua building potentiality, and for which reasons could be gathered from the decision pronounced today prirtaining to village Rithala and the ,teiO matter is LA.APP.No.65612008' Sushit KuinAl' vs. [JOl & Ors. The same may be treated as 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. iahd Acauisltion Officer Hvderabad Urban Develon ^* Authoritv & Ors.., on the principle of subject lands having acquired qr building potentiality, but there being no reliable evidence to translate the potentiatity into a money value, as held in the decision in P.Ram Reddv.'s case (supra), on the basis of market value determined as per actual user I have, to give effe-ct to building potentiality acquired, enhanced the price by 10% and LA.App.No .358/2007 & cilrurected matters It4 Ll onr said basis, pertaining to the ndtification dated 2L.7.1993 have determined'fair market value pf land 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 b'e . , T1,3 9,026.40 per bigha

¶7Giving same benefit to lhe subject lands and wilh reference to the fact that as of 27.7.1993, factoring in tlre ,rillage 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 date d 23,72.7994 and 28.4.1995, increasing j , the land price by 10% per annum, I determine the fair market - value to be t1,69,515.61 per bigha i.e, {8,Ii,674.92 per,acie, ' rounded off to {8,13,675/- per acre as of.,23.I2.L994 and t1,83;390.41 per bigha or {8,80,273.96 per acre rounded off to - TB,B0,2751-per acre. ' B. Appeals by the land owners peftaining'to the said two notifications are partially allowed by increasing the compensation payable as above. ,.

¶9Pertaining to the nbtification dated 2,!0.1999, it needs to be highlighted that the learned Additional D'istrict Judge. has determined fair market value at T12,96,455.89 per acre on the strength of the minimum price. notified by the Government for agricultural lands as of 1.4.Iggg

¶10lf I weie to adopt the land price at {1,53,000/- per bigha i as of 27.7.1993 and increase the.same by I0% per annum, as.l ' have done for the previous two notifications, the land price ' would come to t11,89 ,7281-per acre, which would be les's than i LA.App.No .3 58/2007 & connected matters 2) the minimum price notified by the Goveinment'with'effect from 1.4.1999

¶11I do not do so for the reason, in ty judgment delivered on 23,8.2011 deciding a batch of appeals, lead matter being LA,APP. No.266i2 OOB lai Sinah vs. tJol & Anr., discussing the notifications issued by the Government of Delhi from time to time enhahcing market value of agricultural lands and decisions by courts on the issue of market value of agricultural lands on variousidates and in particular the decision of a Division Bench of this Court reported as 2006 (lV) AD (Delhi) 13 Gairai sinqh vs.uol & Anr.,'in paragraphs 49 to 52 I had observed as under:- "4g. , I have,'in pa ra 37 above, rioted a'decision . of a Division Bench of this Court' in LA.APP.No.866/2005 decided on 11'5 '2006; wherein pertaining to @ market value determined as of r.5.li.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 diqcuss. The decision notes that the subject lands i.e. the lands with which 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 w€re identified for providing major he'alth facilities, schools, markets and rural industry, one of which was viliage Bawana. lt was noted .that .G.T.Karnal Road and Rohtak Road were providing good access to village Bawana and that the Mast'er 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 ai contemplated by Section 11A of the LA.App,No.35812007 & connected matters ' Page 5 of L0 q .j D'elhi.Development Act 1957, the lands continued to . be used for agricultural purposes and there was rio ' evidence that till the year 1996, any land use had . been actually changed and puf to the use contemplated by the Master Plan. As in the instant cas,e, where all subject lands were continuously pu-t 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 w,ith 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 ripon. 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-)-vis a land having a building potentiality, in futuro. As already noted by me in para 36 above, .as of ,the date 15,11.1996, fair market value determined 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. the notification d'ated 25.7.1997 where- .under for agricultural lands in Delhi minimum price fixed by the Government'as of I.4.Igg7 was t10 lakhs per acre. lnterestingly, the sa'me Division Bench had pronounced another judgment reported ,as 2006 lV AD (Delhi) 13 Gajrai Sinah vs. UOt & Anr. 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 fo'r Category 'A' lands was {9,76,12L1-per.acre and for Category 'B' lands was {9,51,121l-per acre i.e. near approximate to the fair market value of lands in ' village Bawana,' lt needs to be highlighted that while determining the fair market value as of 15.11.1996 in village Holambi Kalan, evidenced , from the 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 highlight that another LA.App.No .3 58 12007 & connected matters o2/ .2 .\ Division Bench of 'this. Court, in another adjoining 'village in the same 'Vt i,e, between G.T.Karnal Road and Rohtak Road, i.e. village Singhola determined-fair market value as of 19.3.1993 @ {1,30,523/- per bigha i,e. T6,26,510.40 per acre. The decision is reported as 2004 (4) AD (Delhi) 20 Ram Chander vs. UO!and the same Division Bench, as per the decision repofted as 111 (2004) DJ 95.Hukum Sinah vs. UOl, pertaining to a notification dated L4.1.L994 for village Singhola determined fair market value @ {1,40,230/- per bigha i.e. T6,73,.1041-per acre. The aforesaid judgments noted in the

¶50preceding'paragraphs as also the varioub 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 agricultural land in Delhi over the years commencing from the year 1990. As of 27.4.1990 minimum price was t4.65 lakhs per acre which rose to T10 lakhs per' acre as of L4,I997 i.e. the increase. is T5.35 lakhs spread over. 7 years which gives us a.II5'.054o/o increase in 7 years and the average price increase would be 1-6.436%. The price rise.over the next 1 year is by llz% and thereafter by ll%' for the next 2 years and l!.5% for the next year i.e. . as of L4.200l. lt shows that due to urbanization, between the year 1990 and 1997 prices grows fairly sharply ,, and good corroborative evidence for this 'wou'ld'be ; the decision of the Division Bench of this Court in Gaira.ls case (supra), which I have discussed in para 49 above

¶51I need to elaborate a litfle more with respect to the decision in Ga-irafs case. Discussing the evidence pertaining to fair rnarket, value 'of agricultural land in village Holambi Kalan as of

15.11-,1996, in paras 9 to 17 the Court discussed the valdation on the basis of agricultural yield and found , that the gross return per .acre per annum was t95,000i-for multiple cropped la.nd and having good LA.App.No .3 58 /2007 & connected matters u -\ irrigation facilities and th'us capitalized the land price at T9.5 lakhs per acre, Discussing the second method of land prices ,of comparable lands'in thg surrounding areas including potentiality, in para 19 onwards the Court discussed the 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 instances and giving benefit of industrialization the land price would come to T10,03,3641-per acre (Refer para 31). ' The Court then considered the prices notified by the Government as per policy dated .L.4.1997 and thus worked out the mean average figure of t9,76,I2I1-per acre for Category 'A' lands and t9,5,I,l2Il-. per acre for'Categoiy'B' lands. The decision.highlights, that the potentiality had been well-factored in when the Government issued the minimum price notification w,e.f, L4.1997, evidenced by the fact that even with respect to sale transactions the Court found that as against the minimum pric'e notified as of 7.4.1997 at t10 lakhs per acre, sale' instances were highlighting that the price was {10,03,364/- per 'acre.

¶52The decision in Mahender Sinqh's case, 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 h.ad been taken into account by the Court which was proj€cting residential, commercial and industrial future exploitation of agricultural land in Delhi and on the issue of potentiality had noted that nbtwithstanding the Master Plan so projecting and the lands theoretically acquiring a potentiality, the same had not trahslated into a reality evidenced by the fact'that till the year 1996 i.e. the date of the notification with which the Division Bench was concerned, viftually no development had taken place in village Bawana 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 market actually grows. The.decisions LA.App.No .35812007 & connected matters Page 8 of L0 tr.1 I L1 ' in Ga.trafs case and Mahender Sinqh's case highlight ,that potentiality translated itself into a reality between 1990 and 1997 when prices rose by about 165% per annum and thereafter the extended potentiality did not translate with the requisite momentum and the acceleration fell to between 10% per anhum 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. LlJ.:gg7 minimum price deterniined by the Goverpment t. Was T10,00,000/- per acre, building potqntiality impacti'fig th,e value of agricultural lands in Delhi had already been faitored in and thus I hold that pertaining to the notification dated

27.1-0.1999: the land value determined by the learned Reference Court is borrect and thus all appeals pertai,ning to said notification are dismissed leaving ahu;'parties to bear their own costs. 13, To summarize:-

(a) All appeals pertaining to

23.I2.I994 sta'nd disposed of determining;fair mbrket value to be paid to the l.and owners in .sum of t8,136,7501: per acre ; together with statutory benefits as explained by the Supreme the notification.'dated

(93) DLT 569 Sunder vs. ^ Court in the decision reported as 2001 !!Q! plus p roportionate costs.

(b) All appeals pertaining to the notification dated 28.4;1995 stand disposed of determinirlg fair market value to be paid to the land owners in sum of {8,80,275l-per acre'together with statutory benefits as explained by the Supreme Court in the LA.App.No .35812007 & connected matters Page 9 ofL0 , .Fr(L_2 !r -tl.l decisionreportedaS200l(93)DLT5691und?rvs,tJolp|us proportionate costs"

(c) All appeals pertaining 'to ' the notification datedr$ ' dismissed leaving the parties to bear their own

27.]-0'1999 are ' costs. SEPTEMBER 26, 2O].1 . dk ,' :l I __^_:{F4 [[ (PRADEEP NANDi\nJOCl . JUDGE 4\ LA.App'No '35812007 & connected matters Page l0 of 10 :'- \

l< t./ $-e3 *IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.APP. 1005/2008 UOI .....Appellant Through: Mr.Sanjay Poddar, Senior Advocate with Mr.Sanjay Pathak, Advocate for UOl. VCTSUS AJAY KUMAR & ANR ..... Respondents Through: None. CORAM: HON'BLE MR.JUSTICE PRADEEP NANDRAJOG