Union of India v. Nain Singh Decd Thr Lrs & Anr

Judgment Delivered On: 7 111 June, 2011 + LA.APP.'930/2010 • UNION OF INDIA Appellant Through: Mr.Sanjay Poddar, Advocate Mr.Ramesh Ray, Advocate and Mr.Ashish Tanwar, Advocate for UOI. Versus NAIN SINGH (D) THRU LRS. ......Respondents Through: Mr.Satish KumarVerma, Advocate Mr.Kunal Sharma, Advocate for DDA. CORAM HON'BLE MR. JUSTICE PRADEEP NANDRAJOG I. Whether the Reporters of local papers may be allowed to see the judgment? To be referred to Reporter or not? Whether the judgment should be reported in the Digest?

PRADEEP NAN DRAIOG, J. For orders see LA.APP. No.59/2 007 (PRADEEP NANDRAJOG)

JUNE 07 1 2011 JUDGE • 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. '7 * N THE HIGH COURT OF DELhH AT NEW ELH % /udgment Resetved On., ]St June, 2011 /udgrnent Deli vèred On: 7 111 tune, 2011 LAAPP.NO.5912007 • 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.Rajesh Gupta, Advocates. Vrsus UOl&ORS. Respondents Through: Mr.Sanjay Poddar, Standing Counsel (LA), GNCT Delhi with Mr.R.C.Ray, Advocate forR-1 • : Mr.Ajay l(umar Verma, Standing Counsel DDA. :S And +LA.APP.41/2007 & CM 12011 (Cross Objections), LA.APP. 5812007 & CM 3856/2011, LA.APP..60/2007, LA.AP.P.61/2007, • LA.APP.62/2007, LA.APP.63/2007 & CM 11398/2011, LA.APP64/2007 & CM No.942/2011, LA.APP. 65/2007, LA.APP.6612007 •& CM, No.2547/2011, LA.APP.73/2007 & CM No.938/2011, LA.APP.8712007, LA.APP.8912007, LA.APP.91/2007, LA.APP.412/2007; LA.APP.310I2008, LA.APP.748/2008 & CM No.945/2011, LA.APP.802/2008, LA.APP.1028/2008, LA.APP.1033/2008, LA.APP.1034/2008, LA.APP.1037/2008, :- LA.APP.89/2009 & CM 11380/2011, •• LA.APP.116/2QQ9 LA.APP.130/2009, LA.APP.553,12009, LA.APP.559/2009 & CM No.923/2011, LA.APP.595/2009 & CM 916/2011, LA.APP,2/2010, LA.APP.8,'2010, LA.APP.101/2010 & CM No.914/2011, LA.APP.380/2010, LA.APP.957/2010, LA.APP.958/2010, LA.APP.3/2011, LA.APP.29/2011, LA.APP.5412011 &. CM 9964/20111, LA.APP.155/2011, LA.APP.156/2011 & CM 11360/2011, LA.APP.59/2007 & conneEted • LA.AP.159/2011, LA.AP.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.APPJ106/2008, LA.APP.1107/2008, LA.APP.647/2009, LA.APP.650/2009, LA.APP.311/2010, LAAPE.314/2010, LA.APP.315/2010, LLJ1E..3i 6f7Q10, LA.APP.388/2010, LA.APP.6.99/2010, (A.APP.930/2010, LA.APP.931/2010, LA.APP.933/2010, .L/.APp.934/zcrr - 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.992/2008 & 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 I & CM N0.967/2011, LA,APP.551/2009 &CM No.11383/2011, LA.APP. No.576/2009 & CM 11386/2011, LA.APP, 580/2009, LA.APP. 607/2009 & CM 11389/2011, LA.APP. 25/2010, LA.APP, 253/2010, LA.APP. 263/2010, LA.APP. 264/2010, LA.APP. 454/2010, LA.APP.677/2010 & CM 11373/2011., LA.APP.678/2010 & CM 11395/2011, LA.APP. 679/2010, LA.APP.60/2010 & 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.946/201.0, LA.APP. 947/2010, LA.APP. 949/2010, •LA.APP. 951/2.010, LA.A.PP. 952/2010, LA.APP. 140/2011 & LA.APP.560/2009. CORAM: .. HON'BLE MR. jusTicE PRADEEP NANDRAJOG Whether the Reporters of local papers may be allowed to see the judgment? To be referred to Reporter or not? Whether the judgment should be reported in the Digest? LA.APP.59/2007 & connected PageZof3z PRADEEP NANDRAJOG,1. Unnurnbered cross objections and civil 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.

The instant decision •decides aforenoted appeals and cross objections in such appeals where cross objections are filed. 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 Allaha bad It enters the city of Delhi from the North and flo\N 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 28kmin the rural stretch.

¶5Over the last century the quality of the water in the river 'ha.s deteriorated due to increased waste water discharge, not - only within The city of Delhi, but even upstream, when flQwing through the city of Yarnuna Nagar and the city of Panipat, both in the State of Haryana, where rapid indutrialization has resulted in industrial effluent being discharged into the river water,. The eco- • system supporting migratory avifaunà and the ground water has LA.A.PP.59/2007 & connected continuously degraded, requiring immediate attention foi conservation. 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 England and the river 'Seine' in France. Bodies such as the 'Miriistiy of Environment a n d 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 Jntegration of river Yamuna in the plahning, for the development of the National Capital Region, and of necessity which includes the National Capitl Territory'of Delhi. Of the various proposals made, emphasizing the ecological rOle of the 'Flood Plains', abutting the river bed of the . river Yamuna and its conservation imperatives, channelization of river Yamuna 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

• channelizãtion, involving enlargement of the channel by widening and/or deepening to increase the channel capacity to carry waei • that would have otherwise.spread on to the floodplain. The Nodal Authority for the Planned Development of Delhi, the much maligned Delhj Development Authority, which is accused by many of having created urban chaos in Delhi, had evolved the 'Environmental Management Plan' fOr the stretch of LA.APP.59/2007 & connected • Page 4 of 32 • river Yamuna in the ationl Capital Territory of Delhi, with the overall objective of rejuvenating 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 Developrñent Plan'. Briefly, the report delineates guidelines for development of river Yamuna as it flows in the city of Delhi by dividing the same into various stretches. One such stretclT is between the ITO Barrage till the ILFSNOlJA Link Bride,in the South 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 cityo.f Delhi. ' .12. The sretch with which we are concerned in the instant Land Acquisition Apeals, is the stretch of the river as it crosses NH-24 (at the popular bridge called the Nizamuddin Bridge over , the river Yamuna)nd proceeds.towards the South, crossing lands of village Behlolpur Khadar, Kilokah, Khizrabad, Jogabai, Okhla, Jasola and Madanpur Khadar, all of which lie on the Western bank of the river and Nangli Rajapur. and Chuck Chilla, which lie on the Eastern bank of the river. Graphically reproduced the plan prepared by the 'learned Reference Court on inspection carriedon • 21.11.2006, and to be found in the recoH of LAC No.2/1998 Shopal Singh Vs. UOI & Anr. (in respect of village Nangli Rajapur) would be as under:- • • • LA.APP.59/2007 & connected 'River Bed' is defined as.the area, over which the river flows anddenotes the area which, in the ordinary or regularcourse 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 acquisitidn 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 vegetation is very poor in this stretch due to degraded water quality of ri\/er Ya mu n a. The lands are comprised in the revenue estatU of village Kilokari, Khizrabad and Nangli Rajapur.

16.. Flood discharge and levels, t different gauging stations in river Yarnuna, indicate flooding of th area whenever monsoon is normal or in excess.

¶17As would be evident from the plan of the area prepared by. the learned Reference Court, and as extradted 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 trms 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 KOmar (Ex. Engineer, lrrigati.on & Flood Control Departmert) who are accompanied with other team of officials from LA.APP.59/2007 &connected

/ '. • .4.............. c. respective departments. Counsel for the petitioners as well as respondents are also present. The officials led to embankment of River Yamuna Jn village Nangli Rajapur via Marginal Bund Road through 'Pantoon Road' A rough sketch (i.e. Site plan by approximation) , prepared bV officials of DDA to give a broad idea of the location of villages has been handed over. The same isAnnexure 1 and clearly depicts the location of villages Behlolpur. Khadar, Nangli Rajapur, Kilokari, Chuck Chilla, Khizrabad, jogabai, Okhla, jasola and Madanpür I(hadar. A copy of site plan indicating the khasra no's of village Nanglirazapur has been handed over by officials of LAG 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 adjacent 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 H). The officials informed that the acquired land extended upto 500 metres and may be more from 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 pertinent to note that officials from Irrigation and Hood 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' till embankment of River Yahuna (As depicted in Annexure - I). It was observed that there was no substantial development except that land appears to be utilized near the site for

agricultural purpose. Thereafter the officials led to show the aproxirnate location of land of village Kilokari, Behlolpur 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 LA.APP.59/2007 & connected . , Page 8 of 37' commenced at about 2.40 - p.m. and has been completed at about 4.45 p.m. Sd- (ANOOP KU MAR M EN DO RA]TA) ADDL. DISTRICT JUDGE: DELHI • 22. 11. 2006"

¶18It may be highlighted that the Forvard Bund, as the very name suggests, is the raised embankment to contain the flooded riVer as and when it overflows, so that the dty of Delhi is not inundated with water, during monsoon. It is obvious that due to this, there is hardly any construction activity 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 reroduced by me. It reads asunder:-

"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 riyer 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,sorne 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 situation 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 Hver bed in village Kilokari. The development may have taken place in and around village Kilokãri 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 monsoons. I may also observe that a mere • construction of an isolated boundary wall or a solitary temple without indicating the nature of construction cannot lead to an inference that the land cou!d 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 assessed.by this Court considering the • aforesaid factors."

¶19The quote hereinabove extracted by ie is from the reference order dated 18.10.2006 in [AC No.1/2003 titled Bed Ram • • Vs. UO/&Anr. - By virtue of a notification dated 23 6 1989 issued undei Section 4 .of the Land Acquisition Act 1894, a vast track of land ad-measuring 3500 hectares was proposed to be acquired at 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. village.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 proposd acquisition. Only the lands which were between the Forward Bünd and the river Yarnuna and as stnd graphically described by the learned Judge and as extracted hereinabove in para 17, were the ones which • were, proposed to 6e acquired.

¶21The notification in question was - followed 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. • • • • • • • •. •• LA.APP.59/2007 & connectd • • . ;• • •

22.. Pertaining to the revenue estate of village Khizrabacl, subject matter of the present appeals, the Land Acquisition Collector announced an Award bearing'No.18/1992-93. Pertaining to 'village l(ilokari the Award No.14/1992-93 was "annoçnced on

19.6.1992 and, pertaining to village 'Nangli Rajaur the Award No.16/1992-93 was announced on 19.6.1992.

¶23In all the awards, the Land Acquisition Collectcr assessed the fair market value of the subject lands for all 3 villages © 27,334/- per bigha and needless 'to state held that Lh .e land owners would be entitled to the interest and such other statutory benefits as vère to be paid on the compensatiofi assessed as per the Land Acuisition Act 1894. 24, While assessing the lair market value of the lands as on

23.6.1989 i.e. thedate of the notification issued uder Section '4.of • the Land Acquisition Act 1894, the Land Acquisition Collector took into consideration' various, registered sale deeds reflecting the stated price and therefrom computed that the average price of the land would come to 18,736/- per bigha. But, noting that vide Office Order dated 3 5 1990 the Government of Delhi had notified • the minimum price of agricultural land in the Union Territory of Delhi having 2 rates; 4,50,000/- per acre for 'agricultural lands and 1,50,000/- per acre for land situated in the river bed since the notification under Section 4with .whic'h he was concerned was - dated 23.6.1989, depressed, by discounting the price by 15% per annum and conduded by holding that the fair market price as of

23.6.1989 would be27,344/- per bigha.. This pric 'determined for, the land in village Kilokari was , held to be price' Payable fo! the acquired land in the other 2 villages as well for the reason the Land LA.APP:59/2007 & connected ' ' . • Page ii of 32 Acquisition Collector assessed the compensation on the minimum Ii price notified by the Government. itself as on 3.5.1990 for the lands situated in the river bed. .25. Dissatisfied with' the assessment made by the Land Acquisition Collector, the appellants herein sought reference under Section 18 of the Land Acquisition Act 1894, which was referred to the Reference Court as per Section 18 of the Act.

¶26The 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 references made, by and under various orders fixing the fair market price at 89,600/- per bigha for the acquired lands. •

¶27I note that the reasoning of the learned Reference • • Court is pai-materia in each order.. ., •. The record of the learned Reference Court shows that before making the assessment, vide order dated 13.11.2006, i recorded that the Court would inspect the site and notice Whereof was deemed to be given to the parties as per the order. Thereafter, in the.presen of the lerned counsel for such parties who chose to be pesent at the inspection and in the presence of the representative of the Land Acquisition Collector and DDA the learned Judge made a site visit on 22.11.2006 and prpared a spot. inspection report and a site plan, both of which have been extracted by me hereinabove in para 12 and 17 above.

¶29It may be noted that the larned Judge took \/ariOus • photographs which are placed in LAC No.2/1998 Bhopa/ Singh Vs. UO/ & Anr, and the same show that the lands are low lying lands LA.APP.59/2007 & connected • • •. . . • Pge 12 of 32 ( ( and are, as described by the learned Judge in tile report which I have extracted in para 17 hereinabove. It is not in dispute that the land in question, fails in an area, which is between the river Yamuna and Ring Road. Since I am, with consent of learned counsel, for the parties 'treating LA App.No.59!2007 as the lead matter, it would be relevant to note that the appellant theeof 8ed 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 Kilokari. He adrnitted that since construction was not allowed by the Government, no other construction could come up.

¶31Various documents were proved before the learned Reference Court by varipus parties and find a mentiOn in the various orders passed by the learnd Reference Court, but, I need not note the same because, before m, while arguing the appeals learned counsel for the parties pressed into aid only one sale deed dated 17.3.1988, Ex.PW-3/1 in the reference sought by Bed Ram. Besides, I .earn .ed counsel relied upon the decision reported as Tindey & Ors Vs. Un/on Of md/a & Anr. 2000 (54) D'RJ 384 (DB), wherein a Division Bench'of this Courtassessed tie market value for the land situate in village Khizrabad acquired pursuant to a notification dated 10.05.1976 and assessed the compensation © 35,000/- per bigha as of 10.5.1976. I may highlight that land vhich was subject matter of consideration in T/nde/ s case (supra) was saline land (sa/ab), and was acquired for purposes of constructing a pilot cut inthe teach'from Nizmudding Bridge to LA.APP.59/2007 & connected , , • Okhla Weir. Learned counsel also relied upon the decision reported as Diwan Ram Swaroop & Ors Vs. Union of/nd/a 1992 (48) DLI 600 perusal whereof shows that the land situate in village Khizrabad was acquired. pursuant to a notification dated

03.06.1961 and was assessed at'12,500/- per bigha.

¶321 may highlight tht the decision in Diwan Rain Swaroop's case (supra) was the basis on which decision was premised in T/ndeVs case (supra). In Tindey's case, taking the land value at 12;500/-, per bigha as of 3.6.1961 by giving an annual increment of 12% but denying. a p rogress,ive increase, the sum worked out was 35,000I-per bigha. With reference to the decision' reported as Bed! Ram. V. 'UO/ & nit 2001. (93) DLI 150 and a decision dated 42.2011 disposing of RFA 'No.582/1994 3al \./r/shan Kápah! Vs. UO/ & Anr, as also a decision of the Supreme Court reported as A/and Rain Vs. 'State of 1 -/arya17a JT 1988 (4) SC 260, it was urged in the alternative, that if the price as Oer sale deed dated 17.3.1988 was not to be adopted and the sale price determined in D!wri Rain Swaroop's case was taken to be base price, percentage ihcrease adopted, by the" learned Irial judge as 12% be adopted but the benefit of the 'progressive increase should be, given and in respect of the plea I must not,e that learned' counsel made a concession that as was done in Bed! Ran's case, initial increase could be @ 6% per annum followed' by 10% per \ annum and then 12% per annum, with the cut off years being '1959-1965 (6%), 1966-1973 ('10%) and 1974 onwards (12%). . ' Pressing'the firt argument that the sale deed dated

17.3.1988 should be adopted by this Court to determine the hair harket value asof 23.4.1989; learned counsel hevily relied upon. LA APP 59/2007 & connected I, the decision of the Supreme Court reported as G.Pre/77a.Vs.Spécia/ Tehsi/dar (2010) 12 SCC 502 and the decision repoited as Prakash 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 fir market value of the acquired lands. Relying upon the.testimony of Devi Ram PW-6 in the reference pertaining to Bed Ran, the Patwari of village Kilokari, learned counsel drued that he adnitted that the land in question is situated in a developed area, having • building potentiality, inasmuch as. the ladd situated in \fillag'e Kilokari and Khizabad were acquired for the planned development of Delhi in the years 1959and 1961 nd on which acquired lands DDA had develo?Jed the residential colonies named 'Friends Colony', 'Kalindi Colony' and 'Maharani agh'. It was thus urged that the area in question had great potentiality; the same being a . reflection of the 3 colonies having come up on the earlier acquired lands. Pertaining.to the sale deed dated 17.3.1988., Ex.PW-3/1, referred to by me hereinabove, it was argued that the vendor and vendee of the sale deed were not the residents bf the area in qustion 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 peith' reasoning of the learned Trial Jude, which reasoring is as under:- "It may further be observed that, there is. no evidence to reflect that there could have been an increase in • S prices of land as per sale deed dated 17.3.88 Q Rs. 2,07,500 per bigha relied by petitioner. when.compared LA APP 59/2007 & connected with Ex.R1 (Rs.43,200!7 per bigha) or mm. price fhed w.e.f. 27.4.90 as per policy within a short span of time. It is a known fact that the cheme 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 increas.ed 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 value of land." I have extracted the' quote herein above from the decision dated 25.9.2006 in [AC No.1/2003 'Bed Ram vs. UO/ & Anr'. , Pertaining to village Kilokari, .an additional argutinent was advanced which was predicated on the decision dated

10.10.1984 in RFA No.117/1974 Smt.Angoor/ Oel// 'i/S. (10/ & Ors, wherein pertaining to a notification dated 13.11.1959 fair narket value assessed by this Court for lands in village 'Kilokari was !26,000/- per bigha as againsf12,500/- per bigha for the land in village Khizrabad Wherein in 0/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 Kilokari was more valuable than the rest and for which it was urged that Kilokari needs to be dealt'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 lands are in the river bed on Forward Buiid and as such, can safely be inferred to be covered during some part LA.APP.59/2007 & connected . . . of the year with water and may becultivable for other pares of the year. Since the lands fall in the river bed, they may not be capable of being utilized as a normal agricultural land and in any case are unsuitableto 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 Iand are on the eastern side of Ring Road; the earlier acquired lands were not low lying lands. They were just like any other, ordinary agncultural 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 merely because 3 colonies: Maharani Bagh, Kalindi Colony and New Friends Colony had come up on the acquiied 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 .B,und spanning the area between the '. • ' Forward Bund and the river Yamuna.' •

¶37'Learned counsel clarified that even if it be held that the 'learned 'Trial Judge has inadvertently referred to as the subject • landsas forming the River bedraher than the Flood Plain land, but • , hasten to add that this does not impact the reasoning of the learned Trial Judge inasmuch as the land being the Flood 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 , • • •• " LA.APP.59/2007 & connected , natural vegetation on the land beIng grass lard, bushy and shrub vegetation. In reply to the arguments pertaining to the progressiv increase to be effectedwhile determiiing the fair market value of the land, Shri Sanjay Poddar relidupon the latestjudgment of the Supreme Court reported as General Manager, Oil & Natural Gas Corporation Ltd Vs. Rameshbha/ /ivanbhai Pate! & Anr 2008 (14) 5CC 745 and highlighted paragraphs 13and 14 thereof. Learned counsel highlighted that the solitary sale deed relied upon i.e. the sale deed dated 17.03.1988 executed by Shri Ranjit Singh S/o Shri Badlu Ram Jn favour of Shri Vinod Kumar 5/0 Shri Kedar Nath, whereby a parcel of land ad-measuring 1 bighal biswa was sold for a sum of 2,07,500l-, the recitals of the same would show that 40,000!- was paid in advanca and balance i.e. 1,67,500/- was to be paid at the lime 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 mbnths prior to the date of the notification in question and justified the ieasoning of the learned Trial judge which was questioned by the learned counsel, which resoning .1 have extracted in para 33, aboVe. Learned counsel further urged that except for this solitary sale •deed, no other evidence in the shape of voluntary sale transaction has been placed on record by the appellants/landowners.. Counsel highlighted that in rebuttal, the Union of India submitted 4 sale deeds, Ex.R-1 to Ex.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 salededs out LA.APP.59/2007 & connected 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 demand for the land in question and thus concluded that the land did not have any potentiality to command higher value a'claimed by the appellants. Learned counsel contended that the learned Reference 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 purposes of inflating the price, but also to secure alternative plots inasmuch as the Large Scale Acquisition, Policy for Agricultural Lands in Delhi requires that the individual, whose Jand is acquired, must have more than 1 bigha land to be entitled to a residential plot in a developed . colony. Learned counsel highlighted the decision of the Supreme Court reported as Mohammad RaofuddIn Vs. Land Acgu/s/tior Officer2009 (14) SCC 367 wherein it was observed s under - • "12. In Shaji Kuriakose v. Indian Oil Corpn. Ltd. t h s Court had observed as under: (5CC pp. 652-53, para 3) "3... . While fixing the market value of the acquired lahd, comparable sales method of valuation is preferred than other, methods of valuation of land such as capitalisation of net income method or expert opinion rdethod, Comparable sales method of valuati'pn is \ preferred becaUse it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act. However, comparable sales method of valuatiOn, of land for fixing the LA.APP59/2007 & con nectéd • market value of the acquired land is not always . conclusive; There• are certain factors 'which are required to be fulfilled and on fulfilment of those factors the compensation can be awarded, according to the value of the land rfIected 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 acquired 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 cbVered by sales and land acquired,. Jt is open to the court to proportionately recuce the compensation for acuired land than what is reflected; in the sales depending upon the • . disadvantages attached with the acquired land."

¶40It was argued,by Mr.Sanjay Poddar and for which learned counsel relied upon the decision of the Supreme Court reported as KanwarStnq'h & Ors vs Union of India 1998 (8) 5CC 136, that the lands situated in various villages acquired through. the same notification cannot be given the same market \falue 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 Ran7S case (supra), relied upon by the appellants, it was held that the similarly situated IaHd 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 LA.APP.59/2007 & connected .. . • land sought to be acquired are similar to the land sought to be • .. compared, 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 lands 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 Moharnmad Raofuddin s 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

'A to the individual whose property is 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 the land situated in the interior undeveloped area. Further, the court is. required to act as a willing and informed buyer and seller, meaning theèby, such a buyer and seller must be unaffected by the special needs of a particular purchase and must have the information required bya prudent person relating to the land sought to be acquired. counselhighlightd 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. MrAjay Verma, learned counsel for DDA while adopting the arguments advanced by MrSanjay 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 D/rector. vs. Sharat chandra B/so! 200 (6) SCC 326, LA.APP.59/2007 & connected . . PageZlbi3Z • lands can be clasified as situated near a river or at a distance thee-from i.e. within a village belting can be resorted to.

¶42In rejoinder, learned counsel for: the appellants, submitting rejoinder submissiQns through Mr.B.P.Gupta, Advocate relied upon the decision of this court reported as Baldev Singl7 Dhil/oh & Ors. Vs. Un/on of India & Or's 2005 (121) DLT 606, a n d 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 Lo invoke the urgency clause i.e. Section 17(1) and 17(4) of the Land Acquisition Act 1894 thereby denying the right of hearing to the and-owners affected under Section 5(A) of the Act, the respondents had cited the looming threat of unauthrized colonization as • the reason to deny such right and therefrom 'counsel sought to infer that the lands had a potntiaIitt for development and colonization. Mr.L.C.Chechi, learned counsel I supplemented with reference to a notification dared 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 pursuant to an application filed unde.r Order 41 Rule 27 of the Code of Civil Procedure,' and urged that the notification and the order prove that the lnds which were under the River Bed were de-notified from acquisition as they were held not reqUired for the purpose for whih the acquisition was rrade, and therefrom counsel urged that it was apparent that the remaining lands were not 'River Bed'. LAAPP59/2007 & conneted - - • - I - - - (A Having considered the submissions urged by Ieained

PH counsel for the parties I propose to deal with the same after noting the decision of the Supreme Court reported as (2008) 14 5CC 745, General Manager. Oil & Natural Gas Corporation Ltd. Vs, Rameshbhai/ivanbha/Patel&Anr. The matter reached the Supreme .Court, on the facts that an area ad-measuring 13 hectars and 17 ares, in village ljapura within District Mehsana, Gujarat was acquired for an Ol\IGC installation, for which the notification under Section 4 of the Land Acquisition Act 1894 was issued• on 15.9.1992. The ,Land Acquisitidn Collector determined the fair market value of the land as of 15.9.1992 at Z2.10 per square meter. On a reference sought, the Reference Court enhanced the compensOtion by determining the fair market value at 17.10 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 notification dated 6.1.1987 whereunder lapd in a neighbouring village namei Sahthal was assessed to a fair compensation at the rate of Z10 per square meter, as also. Ex.16, which related to another land nearthe village Ijapura i.e. land in village Chalsana, of which fair compensation was also assessed at O per square meter' pertaibing to a nbification dated 31.7.196. Thus, taking T10 pr square meter to be fair market value. for the years 1986 and 1987, since notification being considei ed was dated 15.9.1.992, the Reference Court increased, the value, cumulatively at the rate of 10% per annum and thereafter reduced 2 per square meter on account of distance factor between village LA.APP.59/2007& connected Ijapura and other 2 villages, thereby arriving at the figure of T17.10 • 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. • 45. The 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 market value of lands in village ljapura with reference to the value of land in village Santhal and v.illage.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 year• 1987, value of land in village Ijapura was TIO per squOre meter. The Suprehie court thereafter considered the second question, as to what should be the percentage.increasO to I be given per annum and the further question whether the same should be cumulative i e progressive or simple With refei ence to the decisions reported as (1992) 4.SCC 659 Ran/it S/nqh I/s. 'UT of chandiqarh,

(2004) 2 S C C 283 Krishi ' Utpa dan Man di Sam/ti ' S. B/p/n Kumar and (2005) 9 5CC 594 Land Acquisition Officer and • Revenue Divisional Officer Vs. Raman/ulu, where Courts had accepted escalation in ma°rket,value of land 'at the relevant time from percentages ranging between 10% to 15% per annum the Supieme Court 'held that one has o be carefUl with respect to,: Whether the land was comprised in an urban, semi-urban or a rUral LA.APP.59/2007& connected • , • Page Not 32 S area. In para 13 and 14 of its opinion, the SUpreme Court • observed as under:- "13. Primarily, the increase in land prices depends on four factors: situation of the land, nature of development in surroundin:g area, availability of land for development in the area, and the demand for land 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 xvherë there is construction • activity all around, 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% or more per year, durin'g nineties.

¶14On the other extreme, in remote rural area where there was no chance of 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 marketvalue of lands in urban/semi-urban areas and increases, in market value of • lands in the 'rural areas. Therefore, if the increase in market value in urban/semi-urban areas is about 10% or 15% per annumn; the corresponding increases in rural areas would at best be only around half of it, that is,about 5% to 7.5% per a.nnum. This rule of thumb refers to the general trend in the ninetites, to be adopted in the absence 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 would depend upon, the same." -, -

¶46Thereafter, the Supree 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 develUped' i.e. the land was abutting the urban city of Chandigarh. The land in B/p/n LA.APP.'59/2007 & connected I S ,Kurna(s case (supra) was adjoining the Badaun - Delhi Highway and was in a semi-urbah area and the land which was subject matter of consideration in Raman/ulu's case (supra) pertained to the 3rd phase development Of the existing and established industrial estate in the urban area. It was in this conLext that the Supreme Court expressed an opinion in para 13 and 14 of its decision, as extracted hereinabove.

¶47. The observation's in para 14 of the decision pertaining 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 urronding 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 is so. placed in the ciLy, that its potential for development is meager. 49:. Marshy lands along river banks, lands in Flood Plain, prone to flooding, would be in this category, even if it is in' an urban or a se'i-urban area.

¶50Reverting ba.I< td,the decision of the Supreme Court in Rarnesh BhaIc case (supra), highlighting that for lnds where potentiality was established, a safe thumb rule held applicable by the Court, could be to increase the market value by 10% to 15%' per annum, but this thumb rule was expressly made subject to a variation where peculiar fetures were avilable in the form of evidence to increase the growth' up to even 30 1/o per annum 'or depress the, same to half i.e. 5% to 7.5% per annum. LA.App.59/2007 &'connected ' ' . ' ' Applying the aforesaid principles, it was observed that since the subject lands were in a urai area and there was no development activity in the area for a long period of time, appropriate escalation per ahnum should be 7.5% and no more.. Stating that the escalations should be ata cumulative rate i.e. progressively and not at a flatrate, the Supreme Court, in para 20 and 21 of its opinion, held that commendng with the rate of !10/- per square meter in the year 1987 and .accordingbenefit of cumulative rate of increase to be 7.5% per year, the price would rise to Z14.35 per square meter in the year 1992 and as against deducting 2/- on account of distance factor as done by the Cdurt of Reference and as upheld by the High Court since the Supreme Court was applying a lower percentage cumulative rate of escaltion, the deduction effected was 1.35 per square meter and accordingly the fair market value determined was 13I-per square meter. . . With respect to the sale deed dated 17.3.1988 it has to be highlighted that apart from the reasoning given bythe learned Trial Judge there are good further; reasoning to ignore the same and I. have highlighted the same. while noting the argument of Sh.Sanjay Poddar Advocate in .para 39 above 'and since I am accepting the entire 'reasoning of the argument I need not re-state the same asmy reasons, but lest lam accused of being a copy cat and not eyidencing that I have independently applied my mind to • the argument I reord that a solitary sale transaction would be an unsafe measure since a solitary swallow does not mean the onet • • . of Spring and that a solitary tree is no indication that one has reached the woods; lneed not pen down the catena of judgrneilts. LA.APP.59/2007 & connected penned 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 months prior to a proposed .acquisition to a\/ail the benefit of an alternative residential plot in a developed area at a concessional price as per the Large Scale Acquisition Policy for Agiicultural Lands in Delhi. It asUmes importance that under the sale deed 1 • . bigha and 1 biswa of land was transacted o 17.3.1988. As I have highlighted herein above, issue of. re-development 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 EigriculLural • activity can be carried on by a person on 1 bigha and 1 biswa land? That apart, as observed by the Supreme Court in the dedsioh reported as Un/on of/nd/a vs. Ram Pha/ 2003 (10) SCC 166, while assessing the value of a large tract of land situated in vrious villages a solitary sale transaction of a small parcel of land should be ignored as it would be ursafeto asess the market value of a large tract of land based thereon. The .la relating to samling fells us that for a sample to be representative of the whole it must be a fair percentage of the whole and not a trifle.. I ieiterate my reasoning in paras 47 and 48 above .54. . The question . would be whether the pecentage increased worked: out by the learned Trial Judge i.e. 12% per annum on a flat rate with refernce to the land pride 35;000/- per bigha as determined in TindeJ/s case (supra),. which 1 nOte pertained to a notification dated 10.5.1976 foi lands in village Khizrabad (lnd being salabi and thus a guidance to me of being in LA.APP.59/2007 & connectdd • the flood plain of the river) is correct and whether the same has to be aplied 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, bushy 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 visft and I accept the same. The instant lands are situationally disadvantaged and are qualitatively different, being inferior, to other lands in the revenue estate of village Kilokari and Khizrabad which were acquired earlier on, on which the colonies of Mahara'ni Bagh,, Kalindi Colony and New Friends Colony were coloHized. It is for this reason the decision in • REA No.117/1974 Smt, Anqoori Dei)Y vs. 110/wherein pertaining to a notification dated 13.11.1959, for land in village Kilokari fair m'arket, value assessed was 26,000/- per bigha cannot be the basis for fixing the fair narket value of the subject lands. I highlight that pertaining to village Khizrabad, for similar land pertaining to .a notification dated 10.5.1976, in T/nQè.j/'s case (supra) fair market value assessed as of said date was 35,000/- per bigha. The argument of Sh.L.C.Chechi Advocate, noted in paragraph 42 above (last portion), needs to be dealt with here. The notification releasing "lands 'are the RiVer Bed' and the 'Flood Plain'; It is appaent that the authorities as also the 'Reference Court have used the expression 'River Bed' and 'Flood Plain' as LA.APP.59/2007 & connected . ' . nterchangeabl, not realizing that the two are different; and as eplained in para 13 above. The suject lands are 'Flood Plain' and not 'River Bed' and as held by me in paras 47 and 48 above, the consequence of the lands being 'Flood Plain' have to follow.

¶56On the principle of percentage increase' as per Hedl Ram's case (supra), relied upon by learned counsel for the land : owners, wherein progressive increase fOr various strOtches of years was applied at 6°/p, 10% and 12% per annum, suffice would it be to state, that the same was on the basis of evidence of such an increa. I am guided on the issue by the decisipn of the Supreme Court in Ramesh BhaI case. (supra) wherein the Supreme' Court cautioned the Courts that while applying the thumb 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 or increasing ,rarginally by 1 0X, 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 negative in 'character, fQrthe instant lands would require the thuhib rule, required to be adopted for rural areas as applicable to the instant ,lands on the principles I have extracted in Rameshbha!'s case (supra).. I may highlight that the decision of a learned Single Judg • of this Court in Sa/devS/ngh Dh/ion case (supra), which was relied upon by learned counsel for fhe appellants, in para 73 thereof, brings out that there is no development potential in the land save and except to develop • it as a green area after • V channelizing the river Yamuna and use the same for people to LA.APP.59/2007 & connected • Page 30 of 3Z S stroll around and enjoy the cool breeze after toiling hat d in the hot summer; not more than 15% of the area is capableof a meaningful use. . •. .

¶57But, I hasten to add that, the futuristic use of Ei land after acquisition would not be a basis to infer a fair market value, which is the mandate of Section 24 of the Land Acquisition Act 1894. . '• Whatever be the percentage increase per annum in the value of the-land, as per the decision in Rameshbha/ case (shpra) the same has to be applied in progression

¶59, taking into account all the factors herein above noted, of fact and of law, in my opinion the fair market value of the instant subject lhds require the same to be fixed with reference to the decision in 'Tindey's 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 applying the same progresively for a period of 13 years, since the notification with which I am rnncenH is da t e rq r, 1 OQQ I I IJILII - the figure in sum of 89,614.37 per bigha.

60... 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 se at a flat, rate to the base rate of 35,000/- per bigha. . . .

¶61- But, I have worked - out the figure to reach the sum of - - 89,614.37 by 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 notification requires me to proceed ahead by another 43 days and therefore LA.APP.59/2007 & connected

Page 31 of 32 - • logically , requiring to further enhance the surn, but noting that mathematical precision is not to be-achieved while assessing fair compensation and that if diffeience between dates is negligiblE the same has to be ignored and thus I bring the curtains down by according hiy iniprimatur to the price determined by the learned Reference Court,

¶62Pertainingto the cross objections filed by the Union of lhdia, I note that the challenge was to the leSrned 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 presumtion to be • raised. • 63: In view of my reasoning hereinabove dealing with the rival contentions-• pertaining' to the appeals, filed by the land • owners, and the conclusions arrived at, the inevitable consequence • has. to be, the • dismissal of all the cross ap5eals and cross objections filed by the Union of India.

¶64Thus, all appea!s Eis also the cross objections are dismissed, leaving the parties to bear their own costs Th (PRADEEP NAN DRAJO) JUDGE JUNE 07, 2011 • mm/dk • - I LAAPP59/2007&connected Page3Zof3Z

$64 * IN THE HIGH COURT OF DELHI AT NEW DELHI I Judgment Reserved On: June, 2011