Hem Chander Malik v. UOI

2. To,be referred to'Reporter or not?

3. -Whether the judgment should be reported, in the Digest? '.: •.• PRADEEP NANPRAIOG. I..1. 'Vide three awards as afore-noted prpnounced pursuant to three. notifications issued under Section 4 of -the Land Acquisition Act 1894. qn • •23.12.1994,,28.4.1995 and 27.10.1999, agricultural lands in village Sha.hbad Daul.atpur were'acquired for'development of Rbh-ini- PhasG-lV,.'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-1^ Rohini Phase-ir and'Rohini Phase- Ill were'developed, and colonized. The'.effect of what I have highlighted 'is that by the time; subject •acquisitldns were effected, the surrounding.lands,;had ndtpniy been-acquired but •had been fully developed and largely:„colonizfed 'and' thus'the subject lands had acquired a building-potentiality.;,, 2.- • When judgment was reserved in.the•.•.instant ap;peais..pn 19.8.2011, arguments •were.-. advanced and decision Was •reserved in Appeals pertaining'to'.acquisition'df land in'the adjoining; village Rithala. Agricultural lands -of. said viljag;e LA.App.No.358/2007 & connectedma-tters Page 2 of10 •• )> 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.

3. Arguments 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 dealing with the same.

4. Suffice 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 arguments save and except the one qua building.potentiality, and for which reasons could be gathered from the decision pronounced today pertaining to village Rithala and the lead matter is LA.APP.No.656/2008 Sushi! Kumar vs. UOi & Ors. The same, may be treated as incorporated by reference in the present decision..

6. With. reference to the decision of the Supreme Court reported as 1995 (2) SCC 305 P.Ram Reddv & Ors. i/5. Land. Acquisition Officer. Hyderabad Urban Development Authority & Ors.. on the 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 Q-dtSQ (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 (S: cqimected matters on. said basis, pertaining to tine notification dated 21.7.1993 have determined fair marl<et 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 ?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, ( 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 f 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 gs of i;4.1999.

10. If 1were to adopt the land price at ?1,53,000/- per bigha • as of 21.7.1993-.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 • •• Page4ofl0 the minimum price notified by the Government with effect from 1.4.1999.

11. 1do 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 lai Sinah i/5. UP! & Ann, discussing the notifications issued by the Government of Delhi from time to time enhancing market value, of agricultural lands and decisions by Courts on the issue of marl<et 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. '.[1] have,' in para 37 above, noted a decision of a Division Bench of this Courts in " LA.APP.No.866/2005 decided on 11.5.2006, iviahender Sinah i/5. UP! & C/y..wherein pertaining 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 1 •have promised to discuss. 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 hnigrants. • 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. 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. and 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 &connected matters •, • • Page 5of10 Delhi Development Act 1957, the lands continued to be used for.agricultural purposes and there was ho ' evidence that till the year 1996, 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 of,the date 15.11.1996, fair market value determined was •. ^9,59,542.46 per acre and'which •| 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 where-.under for.agricultural lands in Delhi minimum price fixed by the Government as of 1.4.1997 was.?10 lakhs per acre. Interestingly, the same.. Division \ Bench had pronounced another judgment reported •as 2006 IV AD (Delhi) 13.Gairai Singh vs. UO! & Anr. where, pertaining, to agricultural lands in village. Holambi Kalan where 940 bigha and 6 b.iswa 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 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. 1would highlight that another LA.App.No.358/2007 &connected matters Page 6of10 Division Bench of this. Court, in another adjoining •village in the same 'V i.e. between G.T.Karnal Road and Rohtak Road, i.e. village Singhola determined fair market value as of 19.3.1993 (a.?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. arid the same Division Bench, as per the decision reported as 1.11 (2004) DLT 9b.Hukum Sinoh vs. UO/. 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.

50. The 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 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 no 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.ll% 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.

51. I need to elaborate a.little more with. respect to the decision in Gairafs 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 croppediand and having good LA.App.No.358/2007 (S: connected matters -., Page 7of10 irrigation facilities and thus capitalized tlie land price. at ^9.[5] lakhs per acre. Discussing the second method of land prices of comparable lands in the 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 ^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 T[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 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.?10,03,364/- per •acre.

52. The decision in, Mahender Singh'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 had been taken into account by the Court which was. projecting residentiaj,. commercial and industrial future exploitation of agricultural land in Delhi and on the issue of potentiality had rioted that notwithsta.nding the Master Plan so projecting and the lands theoretically acquiring a potentiality, the same had not translated 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, virtually 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.358/2007 & connectedmatters in Gairafs case and Mahender Singh's case highligint 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 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."

12. The decision highlights that by the year 1997 i.e. when w.e.f. 1.4.1997 minimum price determined by the Government vyas ^10,00,000/- per acre, building potentiality impacti.^g the value of agricultural lands in Delhi had already been fa.ttored in and thus I hold that pertaining to the notification dated 27.10.1999; the land value determined by the learned Reference Court is correct and thus all appeals pertaining to said notification are dismissed leaving the'parties to bear their own costs.

13. To summarize:-. (a) All appeals pertaining to the notification dated 23.12.1994 stand disposed of determining-fair market valu^ to be. paid to the land owners in sum of ?8,136,750/- per acre together with statutory benefits as explained by the Supreme Court in the decision reported as 2001 (93) DLT 569 Sunder vs. i/O/plus 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 together with statutory benefits as' explained by the Supreme Court in the ( • LA.App.No.S58/2007 & connected matters ' Page[9] of 10 decision reported as 2001 <93) DLT 559 Pl"S proportionate costs. •.,j ^ (,) All appeals pertaining to the notification dated ^ 27.10.1999 are dismissed.leaving the parties to tiear their own costs.