JUDGMENT
Swatanter Kumar, J.
1. The appropriate Government issued a notification under sub-section (1) of Section 4 read with Section 17(1)(4) of the Land Acquisition Act (hereinafter described as the Act) on 28th November, 2002 acquiring land measuring 8 bighas 6 biswas in Village Bahapur, New Delhi for a public purpose namely `Planned Development of Delhi’. It was also stated in the said notification that in terms of Section 17(4) of the Act, provisions of Section 5A shall not apply. The petitioners who claimed to be recorded owners of the land measuring 2 bighas 16 biswas from the said land have challenged the above notification issued by the Appropriate Government on different grounds in the present writ petition. Along with the writ, the petitioners had filed application for stay being CM 12100/2002 in CW 6967/2003. The Bench, while dealing with the matter while relying upon the judgment of the Supreme Court in the case of Ramniklal N. Bhutta and Anr. v. State of Maharasthra and Ors. , declined the stay by passing the following order passed on 6th November, 2003. The relevant part of the order reads as under :-
As possession is taken by the respondent and we are also informed that land is required for multi-level parking in busy Nehru Place area, CM for stay is dismissed.
2. The above order of the Division Bench was challenged by the petitioner in that writ petition before the Supreme Court in Special Leave to Appeal (Civil) No. 23185/2003 titled as Malook Nagar and Ors. v. Land Acquisition Collector and Ors. which was finally disposed of by the Supreme Court vide its order dated 19th December, 2003 by passing the following order :-
For Petitioner(s) Mr. P.P. Malhotra, Sr. Adv.
Mr. Vineet Malhotra, Adv.
Mr. Shallendra Sharma,
Adv. Ms. Binu Tamta, Adv
For Respondent(s) Mr. Mukul Rohtagi, ASG,
Mr. V.B. Saharya, Adv.
UPON hearing counsel the Court made the following
ORDER
Issue notice.
It is recorded that learned additional Solicitor General is representing the respondents. Therefore formal service of notice is dispensed with.
The special leave petition is dismissed. The High Court shall, however, determine prima facie the approximate value of the land on the basis of material which may be produced before it. Without prejudice to the rights and contentions of the parties the respondent shall deposit with the High Court an amount equivalent to 80% of the amount so determined by the High Court. It will also be open to the High Court to issue directions regarding the withdrawal of the amount by the respondent as it may think fit.
It is requested that the matter may be taken up for determination of the value by the High Court within a period of four weeks from the date of receipt of the copy of this order.
3. It is clear from the above order that we are called upon to determine prima facie the proximate value of land on the basis of the material before us and directs the respondents to deposit 80% of the said amount and also to pass such directions in regard to the withdrawal of the said amounts by the respondent. Learned counsel appearing for the petitioners at the outset and very fairly stated that they are not questioning the legality and/or validity of the notification issued under section 4 of the act nor are they pressing the relief of injunction against the respondents from dispossessing the petitioner from the land. Their prayer before the Court is only for expeditious disposal of the writ petition in regard to the quantum of compensation in terms of the judgment of the Supreme Court. We are also of the view that this Court is not called upon now to adjudicate upon the merit or otherwise of the contentions raised in the pleadings of the parties in the writ petition, but only have to determing the amount of compensation payable to the rightful claimant in light of the fair market value of the acquired land. Thus now we proceed to discuss the only surviving aspect of the case.
4. We may notice that not much material has been placed before us which could help the Court to determine the fair market value of the land in question while the petitioners have placed whole emphasis on the fact that the land sought to be acquired by the respondents vide their notification under section 4 dated 28th November, 2002 is part of a fully developed commercial area and has great potential and they are entitled to the present market value prevalent in the area at the relevant time. The petitioners rely upon the public auction conducted by the DDA in relation to plot No.70, Nehru Place, wherein the land was auctioned at a price of Rs.1,91,666/- per sq.mtr. The plot measuring 1784.38 sq.mtrs was sold at a consideration of Rs.13.24 crores at the rate of Rs.1,91,663/- per sq.mtr. with the reserve price of Rs.13.16 crores. This auction was held on 5.10.1995. These facts have not disputed in the counter-affidavit/additional counter-affidavit filed by the respondents. Even during the course of arguments, it was not stated that the plea taken by the petitioners is not factually incorrect. Referring to the location, potential and value of the land, the petitioners have further pleaded that no notices were served upon them under section 9 of the Act which fixed the date of hearing as 3.11.2003. Prior thereto, on 21st January, 1998 a public notice was issued by the DDA denotifying the entire Nehru Place Distt and directing and holding that the MCD will be the competent authority in respect of the said area. Vide letter dated 5.10.89, it is also for the authorities to acquire the remaining land, if any, in terms of its letter. On 26.4.2001, the petitioner had submitted his plans for sanction of the competent authority in respect of the property of the petitioner in CW.76-79/2004 The plans of the petitioners were not sanctioned nor was refused. The petitioner filed a writ petition bearing CW 6967/2003 praying that the plans of the petitioner would be deemed to have sanctioned by the authorities in accordance with the provisions of section 337 of Municipal Corporation of Delhi Act. This writ petition of the petitioner was disposed of by the learned Single Judge of this Court vide order dated 29.9.2002, the relevant part of the sail order reads as under :-
….No notification has admittedly been issued. The petitioner had applied on 11.4.1994 for sanction of the plan and 11.04.94 the MCD had asked the DDA to inform the possession user of the land so that the plan can be sanctioned in July 1994, DDA addressed to letter to MCD that the land was required for planned development of Delhi Eight year passed and the petitioner is in the same position in 1994. To say at the least, this is an extremely unfortunate situation.
In view of the aforesaid, it is directed that the DDA should communicate to the MCD the land used as existing on date within a period of two weeks from today. The MCD should thereafter consider the plan of the petition and deal with the same in accordance with law within a period of six weeks thereafter.
The writ petition stands disposed of in aforesaid terms.
5. The petitioners also rely upon a letter dated 31st January, 2003 wherein the DDA written to the Chief Town Planner, MCD confirming that the land property use is commercial. The order dated 18.3.2003 passed in CW 2607/2003 reads as under :-
In view of the aforesaid, a Writ of Mandamus is issued directing the respondent to sanction the plan of the petitioner subject to the completion of any remaining formality by the petitioner excluding the requirement of no Objection from the Authorities dealing with the issue of acquisition. The needful be done within a period of 30 days from today and the petitioner shall appear before Building Plan Committee on 28th March, 2003 at 3.00 PM for completion of any remaining formalities.
It is made clear that the sanction granted by the respondent will not come in the way of acquisition proceedings by the concerned authorities.
Writ is allowed in the aforesaid terms leaving the parties to bear their own costs.
Sd/-
6. While relaying upon the orders of the Court as well as the inter-departmental correspondence exchanged between the respondents, the petitioners claimed that they are entitled to much higher compensation in comparison to the auction price which the DDA received for a land few meters away from the petitioners’ land. The land of the petitioners is located between the Telephone Exchange and Fire Brigade and is meant for a commercial use, as such treating the auction price as based price for the year 199, they should be given a progressive increase at a higher percentage and in any case not less than 12% per year till issuance of notification in the year 2002. It may also be noticed that in the writ petition, the petitioners have stated that the permissible land use is commercial. The petitioner had submitted the plans to the Corporation which the High Court had directed to be sanctioned on the conditions stated in the order. As such they would have built a commercial complex on the land in question. The reference is also made to the contents of another Writ Petition i.e. 6967/2003 wherein it was averred that as per the Zonal Development Plan of the area and the lay out plan, the usage of the area has been shown to be commercial. In reply to this paragraph, the respondent raised no dispute and stated that it was a matter of record (page 238 of CW 6967/2003). Opposed to this, the respondents have stated that the claim raised by the petitioners is unreasonable, exorbitant and they have no reasonable basis for raising such a claim. According to the respondent, the petitioner cannot take any advantage of the development carried out by the DDA and various other authorities or the auction purchasers of the authority which are primarily in the larger interest of the public and for `Planned Development of Delhi’. It is the case of the respondents specifically pleaded before us that the petitioners are themselves the purchasers of the entire land measuring about 8 bighas and 6 biswas which have been acquired and they purchased these lands somewhere in the year 1990. In fact in para 7 of the counter-affidavit filed by the respondents on 25th May, 2002 (page 251 of CW 6967/2003), it has been stated as under :-
7. That the answering respondent in order to assist this Hon’ble Court in determining the approximate value of the land, in respect of adequacy of compensation offered by the LAC and deposited by the beneficiary i.e. answering respondent, wishes to peace the following chart giving details of mutation, sale deeds, dates as well as the amount of consideration, at which the as per the petitioner the sale of the very property being acquired has been registered :
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Mutation Khasra No. Area Sale Deed Amount In favor of No. (Bigha
No. and Biswa)
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2841 621/2/3/2/2/2/ 1-0 2849 Rs.9,00,000/- Rajbir Singh min dt.2.5.90
Petitioner No.3
2842 621/2/3/2/2/2/min 1-0 2735 Rs.9,00,000/- Malook Nagar dt.25.4.90
Petitioner No.1
2843 621/2/3/2/2/2/ 1-2 2904 Rs.9,00,000/- Lakhi Ram min dt.4.5.90
Nagar Petitioner
No.2
2844 621/2/3/2/2/2/ 1-8 2530 Rs.9,80,000/- Sudha Nagar
min dt.18.4.90
Petitioner No.6
2845 621/2/3/2/2/2/ 1-0 2734 Rs.8,00,000/- Jagbir Singh min dt.25.4.90
Nagar Petitioner
No.4
2857 621/2/3/2/2/2/ 0-8 6439 Rs.3,25,000/- Shanti Devi min dt.8.10.90
Nagar Petitioner
No.5
2858 621/2/3/2/2/2/ 0-10 6473 Rs.6,55,000/- Jaibir Singh min dt.9.10.90
Nagar Petitioner
No.7
2859 621/2/3/2/2/2/ 0-10 8678 Rs.6,00,000/- Bijender Singh min dt.26.12.90
Petitioner No.8
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Further, the answering respondent has been unable to procure the details of mutation in respect of mutation No.2834 or of the land allegedly mutated in favor of petitioner No.9 i.e. Smt. Kamlesh Sharma.
7. In fact the petitioners themselves have pleaded in paragraph 3 of the writ petition that mutation of the property in question which are comprised in Khasra No.621/2/3/2/2/2min were recorded in their favor under mutation numbers 2841 to 45 on 1st June, 1990 and 2845, 2857, 2858, 2859 also on 1st June, 1990. Copies of the mutations have been placed on record. The respondent No.4 Along with its affidavit has also placed on records copies of sale deeds of Khasra No.1777/1198 situated at Main Sharma Nagar, Kalkaji road, Mauza Bhapur, New Delhi to show that the prices indicated in the sale deed which is an area quite close to the acquired area were very low and as such the petitioners can at best be granted compensation @ Rs.800/- per sq.mtr. at this stage.
8. It was not conceded before us that the sale deed dated 30th June, 1999 relating to Kalkaji Road produced by the respondent would have any bearing on the compensation payable for a fully developed commercial area by the DDA. It was stated that the said land is quite away from the acquired land and does not even form part of outer limits of the entire Nehru Place. We are, at this stage, concerned only with the fixation of a fair market price of the land, prima facie. Parties would be at liberty to lead oral and documentary evidence in support of their rival claims of compensation payable to the claimants before the Court of competent jurisdiction while pursuing their reference under section 18 of the Land Acquisition Act. As is clear from the above narrated facts, there are two pieces of evidence having a direct bearing on the matter in controversy before us i.e. (a) the action held by the respondent-DDA in the year 1995 in relation to plot No.70 and the sale deeds referred to by the respondents in paragraph 17 of their additional affidavit; (b) the sale deeds mentioned in para 7 were not disputed by the petitioners and in fact it was fairly stated before us that these are the sale deeds vide which the petitioners had purchased the land in the year 1990.
9. Firstly, we must deal with the contention of the petitioners that they would be entitled to compensation even at the interim stage and prima facie at the rate of Rs. 1,91,665/-per sq.mtr. which is calculated by them on the basis of the land auctioned be the DDA in the year 1995. According to them, the rate of 1995 being Rs.1,19,665/- per sq.mtr. even if the minimum progressive increase of 12% is added, the compensation payable to them would be Rs.3,25,834/- per sq.mtr. This argument of the petitioner at the first instance appears to be attractive but when examined in consonance of the settled principles of law, the claim is not only ex-facie, exorbitant, but is also imaginative and lacks merit. The alleged potential location of the petitioner as of 2002 is not in any way attributable to or is a consequences of any effort or investment made by the petitioners or the land owners. In fact, they are claiming benefit of the Development work carried on by the DDA and various auction purchasers who invested these moneys number of years back. The area has not suddenly developed. It is a continuous effort on the part of the concerned departments, spreading over a long period that Nehru Place is seen as a commercial area as it exists today. The petitioners could have some benefit thereof, but cannot by any standards argued that they are entitled to the same price or even a comparable price thereof. While determining prospective use of the land or its future potential and development by itself, cannot be the only basis for the court to determine the market value of the acquired land. It is for the claimants to prove on record that the land or its surrounding areas have been fully developed at the time of notification. Granting of compensation is a matter of serious consequence and thus cannot be based upon the element of conjuncture. There had been clear documentation before the Court before determining the compensation. Reference in this regard can be made to the judgment of the Supreme Court in the case of B.G. Kulkarani v. Special Land Acquisition Officer as well as Trilochan Singh v. State of Punjab 1995 LACC 283 SC. Normally, the auction by public authorities of fully developed plots cannot be stated to be a fair guiding factor for determining the fair market value of the land sought to be acquired by the Government at a subsequent stage. Of course, location, potential, utility would be the relevant factors which the Court upon due proof by the claimant, may take into consideration. Auction of a developed plot by a public authority may not be a proper guide for determination of such compensation. It will be appropriate to refer to the judgment in the case of Santa (Died) and Ors. v. State of Haryana and Anr. 200 (2) PLR 501 while referring to various judgments of the Supreme Court as well as of that Court, it was held as under :-
It is settled principle of law that the plots which are developed by the Government or its instrumentalities in the larger public interest after incurring huge expenditure cannot form basis for determining the compensation payable to the land being acquired by the Government for achieving that very public purpose. The cost indicated includes various other ingredients and does not indicate the excessive cost factor of the land price. It was for the claimants to bring appropriate evidence on record for bifurcation of such costing before they could derive any benefit from such documents.
11. This Court has the occasion to discuss the relevancy of such public auctions or allotment of plots by the public bodies in different cases. In the case of State of Haryana and Anr. v. Ram Chander and Ors., R. F. A. No. 37 of 1996 decided on 13..1999 while considering somewhat similar question where auctions were held by HUDA of commercial areas, the Court observed as under:-
Those instances are to my mind not relevant considerations for determining the fair market value of the acquired land at the time of notification. Varied reasons can be given for rejecting these instances. Firstly these plots are developed plots on which the Government or HUDA has already spent considerable amount. Secondly, these are commercial sites and can never be equated to the value of huge agricultural land like the land like the land acquired in the present case. Thirdly, these auction prices are not true index of a fair market value of the land at the relevant time because of the element of speculation and unfair competition in such auctions. Fourthly, the auctions have an element of uncertainty and they cannot be equated to a sale deed It will depend on the terms and conditions of the auction because normally very meager amount in payable at the time of auction and balance is to be paid in Installments. Whether balance amount was paid or not, whether final documents of lease-deed or sale deed were executed in favor of the bidder? Ex.P.31 and Ex.P.32 are based on such terms only and lastly but not the least these are such small pieces of land that they cannot form a reasonable and fair basis for determination of compensation payable to the claimants. Once this evidence is held to be irrelevant, the compensation cannot be granted on the mere asking of the claimants which they stated in their examination in chief and PW3, PW4 and PW9 respectively.
12. Again in the case of State of Haryana v. Rajinder Kumar, R.F.A. No. 2351 of 1998, decided on 3.6.1999, the Court held as under:-
Serious expenditure and efforts are put in by the State or authorities like PUDA before the developed, residential or commercial plots are put to public auction. Cost of land is one of the components of the minimum auction price fixed by the authorities. Auction price is not the price indicative only of the cost of land. It includes various other factors and components in its composition. It is a matter of public knowledge that it includes maintenance, construction and maintenance of roads in times to come, element of interest payable on different heads and other ancillary factors. An auction/bid is primarily is a speculative feature.
10. Thus we have no hesitation in coming to the conclusion that the auction held by the DDA in regard to plot No.70 in the year 1995 cannot be the sale criteria for determining the compensation payable to the land owners, prima facie, and at this stage of the proceedings. We would not prefer to rely upon this document as the petitioner can hardly be permitted to take undue advantage of public obligations of the Government and its development policies.
11. Still, it is the duty of the Court to maintain balance between diverse interest of the claimants on the one side and the State on the other. (K. Posaya and Ors. v. Special Tehsildar . The State acquires land for public purposes and for the larger interest of the Society. The claimants would be interested in getting higher and even exorbitant in situation like the present one. Thus greater is the obligation upon the Court to strike a balance between these two and findings of the Court should be based on evidence wherein every party to the lis is required to discharge onus placed upon them. The sale deed referred to in paragraph 7 of the affidavit filed on behalf of the DDA are admitted documents. They shall bind both the parties. These are the sale instances vide which the petitioners had purchased the land in question and mutations have been recorded in consequences thereof in their favor. The average sale consideration for all these sale deeds which are part and parcel of the acquired land would be Rs.1000/- per sq.yd. Admitted documents between the parties would be the best piece of evidence to be relied upon by us for prima facie determination of compensation payable to the rightful claimants. The Supreme Court in the case of Shakuntalabai (Smt) and Ors. v. State of Maharasthra stated the principle that the document produced by the appellants can be rightly relied upon by the Court and stated as under :-
In a case where evidence of the value of the acquired land itself is available on record, it is unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent lands. As stated earlier, though Exs. 38 and 44 might command different market value to the land situated in approved layouts, since the appellant himself had purchased the selfsame acquired lands in 1957 at Rs.10,000 for the entire 20 acres of land, the High Court was right in its view to consider the ver same evidence to determine the compensation to the acquire land. On the assessment of the increase in the value by 10 times, the High Court had accepted that assessment of the appellant himself as PW 9 and upheld the award of the Land Acquisition Collector since it reflects the same price as granted in the Award under Section 11.
12. As an essential corollary, it has to be decided by the Court what increase should be given to the land owners/bhumidars for acquisition of these lands for the intervening period i.e. the years 1990 to 2002 when the notification under section 4 were is sued by the appropriate Government. It has been repeatedly held by the different courts including the Supreme Court that 12% progressive increase is a reasonable increase to be provided to the land owners for such intervening periods particularly when to other relevant evidence is available on records for that period. Excepting the document of 1995, none of the parties have produced before us any evidence which could indicate as to what would be the fair market value of the land in the year 2002. The petitioners thus could be awarded flat 12% progressive increase on the average value of the land which is reflected by the above documentary evidence. A Division Bench of this Court in the case of Bedi Ram v. Union of India held that allowing the increase @ 12% for each year separately, the fair market value of the land could be arrived at. Learned counsel appearing for the respective parties do not seriously contend that grant of such progressive increase would be unjust or unfair at this stage of the proceedings. The additional fact which we have to take into consideration is that admittedly the area has been developed by the DDA as a commercial area. The learned counsel appearing for the DDA, however, contended that under the lay out plan, the area was marked only for public utility services and thus it cannot get any commercial value much less the value as referred to by the petitioners on the basis of the auction price in relation to plot No.70 in the Nehru Place. This is also cannot be disputed that the petitioners had applied for sanctioning of the plan and the Court had passed certain directions in that regard which give some advantage to the petitioners over a person/land owners who has not approached the court for sanctioning of its plan at the relevant time. Thus, the land certainly had a better location, potential, utility and chances of development at the time of its acquisition than a mere agricultural land which could be acquired by the appropriate Government for Planned Development of Delhi . A pertinent fact which cannot be ignored that the entire Nehru Place falls in Khasra No.621 of Village Bahapur. It is a sub-divided/mid portion of that khasra number which have been acquired in the past except the land of the petitioner and developed into a commercial complex. This aspect, in our opinion, gives definite advantage to the petitioner for claiming somewhat higher compensation in addition to the criteria adopted by us above. Thus keeping in view the location, potential, utility and other relevant factors as stated under section 28 of the Act we are of the view that the rightful claimants would be entitled to receive compensation at the rate of Rs.2684/- per sq.yds, 80% of which would be Rs.217/20p per sq. yd. (computed while taking the price in the sale deed as basic price + 12% progressive increase in the market value of the land for 12 years + one time increase @ 10% of the value so computed because of other factors and the area admittedly being fully developed).
13. The next question is that what directions this Court should issue in terms of the orders of the Supreme Court dated 19.12.2003? There does not appear to be any serious dispute between the claimants in as much as there are no profit to the respondents in these writ petitions. If there is no serious inter se dispute between the parties/claimants appeared before the Collector, the Collector should have no hesitation in paying the 80% amount as recorded by us above to the claimants. Wherever, there is a dispute, with regard to ownership and/or extent of share which a bhumidar or owner is entitled to, in that event, the Collector is obviously under the obligation to refer the matter to the courts of competent jurisdiction within the purview and score of section 30-31 of the Act. The claimants also stated before us that their right to apply for enhancement of compensation fixed by this Court prima facie, should not be curtailed as they would lead evidence before the Court of Competent Jurisdiction for enhancement of the compensation. We find the request to be reasonable as we have recorded the above opinion only on the basis of certain documents annexed in the writ petition and parties were given no opportunity to lead oral or documentary evidence as such, the view being prima facie, the parties should be left free to contest the rival claims before the court competent under the provisions of the Act. For the reasons aforestated, we dispose of above writ petitions with the following directions:-
(a) the prima facie, the claimants are entitled to receive compensation at the rate of Rs.2684/- per sq.yd., 80% of which being Rs.2,147/20p per sq.yd. shall be deposited by the respondents in the concerned Land Acquisition Court to the learned Addl. Distt. Judge (concerned land acquisition Court) within 15 days from the date of pronouncement of this order or pay the same to the rightful claimants within 15 days from the date of pronouncement of this order;
(b)in the event the petitioners file an application under section 18 of the Act before the Land Acquisition Collector, the same shall be referred to the Court of Competent jurisdiction without any unnecessary delay;
(c) in these three writ petitions, there is rival claims raised by the petitioners in each petition claiming to the rightful claimant, entitled to receive the compensation. Thus there is dispute with regard to the ownership, bhumidars, persons entitled to receive compensation and its quantum. Therefore, in these circumstances, the Land Acquisition Collector would be at liberty to refer the objections to the Court of Competent Jurisdiction under the provisions of Sections 30-31 of the Act, unless the Collector is satisfied that there is no dispute between the parties in regard to receipt of the awarded amount.
(d) the parties would be free to lead documentary or oral evidence before the Court of competent jurisdiction which would determine the matters in issue not being influenced by this order as it is a prima facie view arrived at by this Court.
Parties are left to bear their own costs.