Ajay Kumar v. UOI & Anr

ORDER %

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

PRADEEP NANDRAJOG, J. SEPTEMBER 26, 2011 mm * IN THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved On: 19^'^August 2011 ludament Delivered On:2&^ September, 2011 + LA.APP. 358/2007 HEM.CHANDER MALIK ... Appellant • Through: Mr. J.V. Rana, Mr.Deepak Khosia, Mr.S.K.Yadav, Mr.S.K.Verma, Advocates • , Vs. .U01& OTHERS ... Respondents Through: Mr.Sanjay Poddar, Senior Advocate & Mr.Sanjay Kumar Pathak, Mr.Sachin Nawani,' Mr.Siddharth Panda Ms.K Kaomudi Kiran, Advocates for R-1. + LA.APP. 62/2004, LA.APP. 136/2004, LA.APP. 166/2004, RFA 422/2001, RFA 304/2002, RFA 448/2002, RFA 481/2002, RFA 497/2002, RFA 572/2002. • (Relating to Notification under Section 4 of the Land Acquisiton Act 1894 dated 23.12.1994 & Award No. 13/1996-97, Village-Shahbad Daulatpur) ... » . .... AND + LA.APP. 573/2009, LA.APP. 298/2010, LA.APP. 599/2010, LA.APP. 791/2010, LA.APP. 378/2011, LA.APP. 396/2011 (Relating to Notification under Section of Land Acquisition^Act 1894 dated

28.04.1995 & Award No. 1/1998-99, Village-Shahba.d Daulatpur) AND -i- \TA.APP.-353/20^1LA.APP. 354/2008, LA.APP. 358/2008, LA.AP>r-37272«-0-8ri^.APP.524/2008, LA.APP. 884/2008,. LA.APP. 1000/2008, LA.APP. 1005/2008' LA,App.No.358/2007 & connected matters • v\ •' (Relating to.- Notification under Section'... 4 -.'of the'. .Land Acquisition Act 1894 dated. 2'7.1;0.i999;-&Award No. 29/2002-03, Village-Slnahbad •Daulatpur) , CORAM; . . ; - HON'BLE MR. JUSTICE PRADEEP NANDRAJQG ,. •• ' • . ^ 1 .' ' : • . • •1. Whether the Reporters pf local pgpers.-may be allo.wed . •to seethejudgment?. . •

¶2To.be referred to,'Reporter ornot?

¶3-Whether the judgment should be reported.in Digest? ' - . - PRADEEP NANDRAIOG, I. . • ,1. • Vide tlnree a.wards as afore-noted'.pronounced pursuant to thrse .notifications issued under Section-4 .of• the Land rAcquisition Act' 1894 . on' ••23'.12.1994,,- :.28..4.1995 '27.10.1999, agricultural lands in village-Sha.hbad .Daulatpur were acquired for'developraent of-Rohini. PhasG-.lV,. It',m.ay..,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-T, Rohini Phase-ll 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 acq.uired biJt .'had been fully developed and largely'..colonizfed and thus'the subject lands had.acquired a building-potentiality,

2.- • When judgment was reserved iri\the-.instaht ap,peals..pn

19.8.2011', argunnents were: advanced and' decision 'was reserved in Appeals pertaining-to-.acquisition of land in 'the adjojnlng . village Rithala. Agricultural lands" of said'viljag'e LA.App.No.358/2007 & coniiectedmatters •• Rithala were also acquired for the expansion of the Rohini Residential Scheme pursuant to a notification dated 21.7.1993 issued under Section 4 of the Land Acquisition Act 1894.

¶3Arguments advanced in the instant appeals were the same as were advanced, in the appeals 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 arguments my reasons dealing with the same.

¶4Suffice would it be to state that .amongst other arguments, one argument advanced-was respect to ; subject lands having' acquired a. building potentiality. This was, one of the many arguments advanced in the appeals to village.Rithala.

¶51 had rejected all arguments save and except the one qua building potentiality, and for which reasons could be gathered from decision pronounced, today to village Rithala lead matter is LA.APP.No.656/2008 Sushi! Kumar i/s. UOi & 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. i/5. Land Acquisition Officer, l-lvderabad Urban Development Authority & Ors.. on principle of subject lands having acquired a building potentiality, but there being no reliable evidence to translate the potentiality into a money value, as held in the decision in P.Ram Reddv's (supra), on the basis of market value determined as per actual user I have, to give effect to building potentiality acquired, enhanced the price by 10% and LA.App.No'.358/2007 & connected matters • on; said basis, to the notification dated

21.7.1993 have, determined fair market value .of 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 be n,39,026.40 per bigha.

¶7Giving same benefit to subject lands 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, 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 ?1,83,390.41 per bigha or ?8,80,273.96 per acre rounded off to ^8,80,275/-per acre. .

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

¶9Pertaining 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 1were to adopt the land price at ri,53,000/- per bigha as of 21.7.1993 and increase the^same by 10% per annum, as I have done for the preyious two notifications, the land price would come to m,89,728/- per acre, which would be less than LA.App.No.358/2007&comectedmatters • Page4 of10 the minimum price notified by the Government-with effect from 1.4.1999.

¶111do not do so for the reason, in my judgment delivered on 23.8.2011 deciding a batch of appeals, lead matter being LA.apP-Nd;266/2008 lai Sinah i/5. UOl & Ann, discussing the notifications issued by the Government of Delhi from time to time enhancing market value of agricultural lands and decisionsby Courts on the issue of market value ofagricultural lands on various dates and in particular the decision of a Division Bench of this Court reported as. 2006 (IV) AD .(Delhi) 13 Gairai Sinah vs. UOi & Ann, \n paragraphs 49 to 52,1 had observed as under:- "49. ;r have; in para 37 above, noted a decision of a Division Bench of this Court, in ' LA.APP.No.866/2005 decided on

11.5.2006, Mahender Sinah vs. UOi & Ors..wherein to village Bawana, fair market value determined as of

15.11.1996 is n,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 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 were . , . identified for providing major health facilities, schools, markets 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 Bawana and that the Master Plan for Delhi notified in the year 1990 had indicated the land use in the, area to be changed in the future to industrial . commercial, but had also observed that notwithstanding this, for the reason no. zonal plan was notified as contemplated by Section llA of the . ' • . ^ - LA,App.No.358/2007&connectedmatters V • • Page5of10 Delhi Development Act 1957, the lands continued to be used for.agricultural purposes and there was no evidence that till the year 1996, any land use had been actually changed put to . use contemplated by the Master Plan. As in the instant ,, case, where all subject lands were continuously put ' to agricultural use, same was the case noted in the, said decision.' To put it pithily, the potential use of the lands giving birth to a potential land value with reference to the area being known to all as being required in the future for building purposes, was found not resulting in the potential being, valued with reference to the potentiality i.e. the lands being, in the near future capable of being built upon. To.put it differently, decision, though not so expressly, stating, would be a proposition that there is a difference between undeveloped land having building potentiality in present!' vis-a-vis a land having'a building potentiality, in futuro. As already noted by me in para above, as of ,the date

15.11.1996, fair market value' determined • was .^9,59,542.46 per acre which | highlight once again is the same as would be determined. reference to the notification being closest in point of time i.e. the notification dated

25.7.1997 w.here- .under for.agricultural lands in Delhi minimum price fixed by the Government as of 1.4.1997 was ,?10 lakhs per acre. Interestingly, same. Division , Bench had pronounced another judgment reported as 2006 IV AD (Delhi) 13 Gairai Sinoh 1/5-. UP! & Ann where, pertaining, to agricultural lands in village Holambi Kalan where 940 bigha and 6 biswa land • was acquired pursuant to the same notification dated

15.11.1996, fair market value determined for Category 'A', lands was ?9,76,121/-, per.acre and for 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 determining the fair market value as of 15.11.1996 in , village Holambi Kalan, evidenced from observations of the Court in para 19 and 20 of the • decision, location and potentiality with reference to development work carried out in the surrounding . lands was considered. 1would highlight that another LA.App.No.358/2007&connectedmatters Page6of10 Division/Bench of this. Court, in another adjoining •village in the same .'V i.e. between G.T.Karnal Road Rohtak Road, i.e. village Singhola determined fair market value as of 19.3.1993

(5) .fl,30,523/- per, bigha i.e. ?6,26,510.40 fDer acre.. The decision is reported as 2004 (4) AD (Delhi) 20 Ram Chander vs. UP!3r\(5i the same Division Bench, as per the decision reported as 1,11 (2004) DLT ^5. Hukum Singh vs. UOI. 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 preceding . paragraphs , as also various . notifications issued from time to itime by 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 ^4.65 lakhs per acre which rose to ^10 lakhs per - acre as of 1.4.1997 i.e. the increase. is^5..35 lakhs spread over. 7 years which gives us a, 115-.054% increase in 7.years and the average price increase would be 16.436%. The price rise.over the next 1 year is by 11.2% and thereafter by/11%- for the next 2 years, and

11.5% for the next year i.e. as of 1-.4.2001. It shows that due to urbanization, between the year 1990 and 1997 prices grows fairly sharply •. and good corroborative evidence for this would be • the_ decision of the Division Bench of this Court in GajraJs case (supra), which I have discussed in para 49 above.

¶51I need to elaborate a .little more . respect to the decision in Gairaj's case. Discussing evidence to fair market; value ' of agricultural land in village Holambi Kalan as of •15.11.1996, in paras 9 to 17 the Court discussed •valuation on the basis of agricultural yield and found that gross return per acre per annum was • ^95,000/- for multiple cropped:Iand and having good LA.App.No.358/2007&connectedmatters . ' , Page7of10 irrigation facilities and thus capitalized the land price . at ^9.5 lakhs per acre. Discussing second method of land prices of comparable lands in the surrounding areas including potentiality, in para 19 onwards Court discussed matter reference to land prices in adjoining village Bhorgarh . where FCl Godbwns 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 ?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 . Government issued minimum price notification w.e.f.,

1.4.1997, evidenced by the fact that even with respect to sale transactions the Court found that as against the minimum price notified as of 1.4.1997 at ^10 lakhs per acre, sale instances were highlighting that the.price was^l0,03,364/- per acre.

¶52The decision in, Mahender Singh's case, 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 industrial future exploitation of agricultural land in Delhi and on the issue of potentiality, had noted that' notwithstanding the Master Plan so projecting the lands theoretically acquiring a potentiality, same had not trafislated into a reality evidenced by the fact that till the year 1996 i.e. the date of the notification which Division Bench, was, concerned, virtually no development had taken place in village Bawana Holambi Kalan . and nobody.'• had exploited potential. As 1 have already highlighted in para 49 above there is a gap between what would be expected to be the market growth and what the market actually grows. The decisions LA.App.No.358/2007•& connectedmatters ' in Gairafs case and Mahender Singh's case iiighlight •tliat potentiality translated itself into a reality between 1990 and 1997 when prices rose by about

16.5% per annum thereafter extended potentiality did not translate. requisite momentum and the acceleration fell to between 10% ^ per annum to 11% per annum. One reason could be that pursuant to Master Plan for Delhi 1990 a fairly large area came to be developed, both residential, commercial and industrial probably there was enough availability of developed land and the hunger of the market got saturated."

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

27.10.1999; land value determined by learned Reference Court is correct and thus all appeals to said notification are dismissed leaving the'parties to beiar their own costs.

¶13To summarize:- .

(a) All appeals to notification dated

23.12.1994 Stand disposed of determining.fair market value to be paid to the land'owners in .sum of f8,136,750/- per acre together with statutory benefits as explained by the Supreme Court in the decision reported as 2001 (93) DLT 569 Sunder vs. UP/plus proportionate costs.

(b) • All appeals 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 together statutory benefits as explained by the Supreme Court in the LA.App.No.358/2007& connectedmatters Page9 of10 decision reported as 2001 (93) DLT 569 Sandeu^S^ 27,10.1999are dismissedleavingthe partiesto feeartheirown costs. SEPTEMBER26, 2011 dk (PRADEEPNANDRAJOG) JUDGE Page10 ofid LA.App.No.358/2007&connectedmatters

$-86 *IN THE HIGH COURT OF DELHI AT NEW DELHI + LA.APP. 353/2008 AJAY KUMAR Appellant Through: None. versus UOI & ANR. Respondents Through: Mr.Sanjay Poddar, Senior Advocate Mr.Sanjay Pathak, Advocate for UOI. CORAM: HON'BLE MR.JUSTICE PRADEEP NANDRAJOG