JUDGMENT
B.C. Patel, C.J.
1. A notification was issued under Section 4 of the Land Acquisition Act, 1894 ( for short, ‘the said Act’ ) on 14.10.1991 in respect of the land of the appellant measuring 500 sq. yds. (0-10 biswas) situated in the revenue estate of Village Himayunpur, Delhi. The declaration under Section 6 of the said Act was issued on 15.01.1992, which resulted in the Award No. 92-93 dated 13.04.1992 determining the market value of the acquired land @ Rs.150/- per sq. yd. (Rs.1,50,000/- per bigha). The appellant aggrieved by the same preferred a reference under Section 18 of the said Act and in terms of the impugned decision of learned Additional District Judge, the land value has been determined at Rs.341/- per sq. yd. Hence, the present appeal.
2. The crucial factor to be taken into account is that what is known as Village Himayunpur and where the land of the appellant was located is known as Arjun Nagar and is a constructed colony. It was originally an unapproved colony, but subsequently vide resolution No. 11 dated 13.02.1979, the development plan of the colony was approved and the colony became an approved colony. The notification issued in the year 1991 is, thus, more than a decade after the colony has been declared as an approved colony.
3. The Reference Court proceeded to consider the fact that the land was acquired by DDA for making a park and, thus, the land should be considered as used for agricultural purposes. Not only that, reliance was placed on an agreement to sell executed in respect of same village on 09.02.1979. This agreement to sell was executed between the husband and wife and a sale deed was registered only in the year 1991. From the value of the land stated in the said sale deed, 1/3th further reduction was made and the land value was determined on that basis and multiplier applied for difference in year. In our considered view, the Reference Court fell into an error in proceeding in this manner to determine the land value of the plot. The reason for the same is that the plot in question was capable of residential use and the whole area had been developed as a residential colony. No doubt, it was contended that a discount should have been made for the fact that it was an unapproved colony, but that reason did not subsist after 13.02.1979. Thus, the colony in question was an approved colony much prior to the time of acquisition. The sale instances, which have been produced, are of adjacent colonies and not of the said colony. The only sale instance of the colony is the agreement to sell, which has been considered, but it has to be kept in mind that the said sale instance assuming it to be genuine as it was between the husband and wife, is prior to the resolution declaring the area as an approved colony. Normally, such transactions between the husband and wife arise more out of family requirements rather than genuine sale transaction and that too prior to declaration of the area as an approved colony.
4. In view of the aforesaid facts and circumstances of the case and on the basis of the evidence on record, we consider it necessary to examine the other evidence produced to determine the land value. In this behalf, our attention has been drawn to key pan of the area in question, which shows the location of the plots bearing No. B ‘7/50 and’ 7/51, Safdarjung Enclave. The distance from these plots of land of the appellant is not very much, though of course the plot of the appellant is located not in alignment with other plots as in the case of an originally developed colony like Safdarjung Enclave. However, this fact has to be simultaneously considered with an important aspect, i.e., the plots in Safdarjung Enclave are leasehold plots an given by DDA while the land in question is freehold land. Thus, on the one hand, discounts will have to be made on account of size of the plots and difference in the colonies, while, on the other hand, appreciation has to be given for the fact that the plot in question would be a freehold plot as against leasehold rights.
5. In so far as plot No. B ‘7/50 is concerned, the transaction in question relates to 08.11.1991, which is the most proximate transaction with that of the appellant. The plot is a small plot of 36 sq. mtrs. and the per unit land rate comes to Rs.16,45/- per sq. yd. The next proximate transaction is of B ‘7/51, which is dated 26.04.1993 where also the price is almost similar. It is also to be noticed that the price in respect of B ‘7/50 is an auction price and even in respect of B ‘7/51, perpetual lease deed had been executed by the DDA. It would, thus, be reasonable to assume that for a plot size of around 36 sq. mtrs. in Safdarjung Enclave, the land value would be about Rs.16,500/- per sq. yd.
6. In the present case, one is concerned with the plot size of 500 sq. yds. We have already noticed above that the location is not far away and is, in fact, in proximity of these two plots. We, thus, consider it appropriate to make a discount of 1/3rd is the price on account of plot size. If this parameter is applied, the rate would come to Rs.10,970/- per sq. yd.
7. The next question to be considered is the differential arising out of the plots being located in Safdarjung Enclave and Arjun Nagar, though the area is proximate. We may also note that Humayunpur Village area is very large, but the plot in question is well located and adjacent to Safdarjung Enclave. Thus, the same parameter would not be applicable to the other areas of Village Humayunpur, but would certainly apply to the plot in question. It cannot be doubted that Safdarjung Enclave is a better know colony and to that extent, learned counsel for the appellant admits this position. He, however, states that while considering the discount to be made on account of difference in colony, the factum of the difference between the leasehold rights and free old property should also be taken into consideration. No hard and fast rule can be laid in this behalf and the judgment has to be made on the basis of evidence available and to some extent, a thumb rule has to be applied. Taking all these factors into consideration, we consider it appropriate to further discount the price by 1/3rd. If this parameter is applied, the land value comes to Rs.7,300/- per sq. yd., which we consider the appropriate market value of the plot in question.
8. We may also note that the appellant has claimed enhancement of compensation from Rs.341/- per sq. yd. to Rs.9,000/- per sq. mtr. and this amount is so claimed on account of inability to pay the additional court fee.
9. In view of the aforesaid, the appeal is allowed to the aforesaid extent and the appellant is entitled to the compensation @ Rs. 7,300/- per sq. yd.
10. Needless to say, the appellant will be entitled to all other consequential benefits including the benefits given by the Apex Court in the case of Sunder v. Union of India, 93 (2001) DLT 569. The appellant shall also be entitled to proportionate costs