Madras High Court
Tamil Nadu Electricity Board, Rep. By ... vs R. Kandasamy And The Land Acquisition ... on 14 May, 2003
Equivalent citations: (2003)2MLJ735
JUDGMENT E. Padmanabhan, J.
1. The first batch of appeals have been preferred by The Tamil Nadu Electricity Board represented by its Superintending Engineer, North Madras Thermal Project, Ennore, for whose benefit vast extent of lands were acquired, in all the first batch of appeals. The appellant challenges the enhancement of compensation awarded by the learned Subordinate Judge of Tiruvallur in 152 LAOPs, while cross objectors claimed enhanced compensation in the respective appeals.
2. The second batch of appeals have been preferred by various claimants/land owners claiming enhanced compensation in addition to the compensation awarded by the learned Subordinate Judge of Tiruvallur in the respective LAOPs. The land owners have also preferred cross objections in some of the appeals preferred by the beneficiary.
3. Heard Mr. S. Rajeswaran, learned counsel appearing for the appellant/electricity Board, Mr. G. Jeremiah, Mr. Thankasamy, Mr. G. Perumal, Mr. Jagadeesh Ilango, Mr. N.R. Anantharamakrishnan, Mr. Narasimhan Babu and Mr. Sunderraman, learned counsel appearing for the respective land owners/interested parties/Cross Objectors, Mr. R. Ashokan, learned Additional Government Pleader appearing for the land acquisition officer, who supported the beneficiary.
4. In A.S. No. 992/97, the first appellant Mr. Kesavalu Reddy passed away on 1.12.2000 and appellants 2, 3 and 4, who are already on record are his legal representatives. The learned counsel for the appellant, Mr. Jermiah filed a memo stating that the remaining appellants in A.S. No. 992/97, who are already on record as appellants 2 to 4 may be recorded indicating that they are on record for themselves as well as the legal representatives of the deceased first appellant. There being no objection, this Court records that appellants 2, 3 and 4 are on record for themselves as well as legal representatives of deceased first appellant.
5. In A.S. No. 1009/97, Mr. Jermiah, learned counsel filed a memo to the effect that the 2nd appellant Kamalammal passed away on 5.7.2002 and her legal representatives being appellants 1 and 3 are already on record. There being no objection, as per the memo filed by the counsel for the appellant, it is recorded that they are already on record for themselves and as legal representatives for the deceased second appellant Kamalammal in the appeal.
6. In A.S. No. 999/97, at the time of hearing it was mentioned that the first appellant passed away and applications have already been taken out to implead the legal representatives to set aside the abatement and to condone the delay. The learned counsel for the respondents, namely, the land acquisition officer and the beneficiary, Tamil Nadu Electricity Board represented that they have no objection for the applications being ordered. On the date of hearing the applications have not been numbered, but subsequently these applications have been numbered as C.M.P. Nos. 6900 to 6902 of 2003. Though there is a delay of 854 days in seeking to set aside the abatement caused by the death of the first appellant, we are satisfied with the sufficient cause shown and that apart, there is no objection. Hence, CMP Nos. 6900 to 6902 of 2003 are ordered as prayed for and the proposed legal representatives are impleaded as appellants 2 to 9 in the said appeal.
7. Large extent of lands in No. 142, Ennore and Puzhudhivakkam villages in Ponneri Taluk were acquired for the public purpose of locating Ennore Thermal Plant. Section 4(1) Notification dated 26.3.96 was published on 2.4.86. The land acquisition officer fixed the market value of the acquired lands and passed separate awards on different dates. At the instance of the land owners, who protested the fixation of market value as very low, reference were made under Section 18 of The Land Acquisition Act.
8. An extent of 56.08 acres of lands in Ennore village were also acquired for the purpose of locating a thermal station. Section 4(1) Notification was issued on 6.5.86 and published in the Government Gazette dated 14.5.86. In respect of 56.08 acres, by award dated 29.9.95, the land acquisition officer fixed the market value of the acquired land in respect of the said 56.08 acres at Rs. 67.50 per cent for wet lands and Rs. 50 per cent for dry lands.
9. In all 228.35 acres were acquired in Ennore and Puzhudhivakkam villages under different Section 4(1) Notifications dated 28.4.86 / 24.7.86 / 8.11.85 / 7.11.86 / 22.4.86 / 24.7.87 and 18.11.85, which is the crucial date for fixation of market value of the acquired lands. The land acquisition officer passed awards on different days after affording opportunity to all the persons interested. The land acquisition officer fixed the market value of the land at Rs. 50/= per cent and at Rs. 30/= per cent as on the date of the respective Section 4(1) Notifications with respect to certain other items. In majority of the cases, the market value has been fixed at Rs. 50/= per cent. In respect of few lands, market value has been fixed at Rs. 30/= per cent. The land owners protested the said fixation of market value and received the compensation awarded by the land acquisition officer under protest, besides sought for reference under Section 18 of The Land Acquisition Act. Accordingly, references were made. The following LAOPs were taken on the file of the learned Subordinate Judge of Tiruvallur :-
"LAOP Nos. 22, 136 to 148, 201, 203 to 210, 212 to 214, 216, 221, 223, 225, 226, 261 of 1988, 23, 25, to 29, 30, 31, 34 to 36, 55, 186, 456, 457, 459 to 462, 466, 586, 587, 590, 594, 597, 598, 601 to 603, 605, 606, 619 to 621, 622, 624, 626 to 628, 631, 634, 635, 648, 652, 655, 656, 658, 659, 666, 675 to 678, 735 to 737 of 1989, 37, 39, 40, 41, 43 to 63, 65 to 70, 73 to 77, 91 to 93, 98,100 to 103, 144, 220, 230, 420 of 1990, 618, 626, 630 631, 632 to 635, 637 to 641, 1336 & 1337 of 1993".
10. Before the learned Subordinate Judge of Tiruvallur, the land owners/claimants marked Exs.C-1 to C-34, which are common in all the LAOPs, while the land acquisition officer marked Exs.R-1 to R-61. The land owners examined two witnesses, while the land acquisition officer examined three witnesses. The land owners claimed Rs. 1,500/= per cent as market value in each LAOP and different sums were claimed on that basis depending upon the extent of the land the person interested was holding on the crucial date. After enquiry, at the first instance, the learned subordinate Judge of Tiruvallur fixed the market value of the acquired lands at Rs. 1,150/= per cent for wet lands and Rs. 1,100/= per cent for dry lands, besides Rs. 100/= per cent in respect of Ennore village towards compensation for displacement. In respect of Puzhudhivakkam village, the learned Subordinate Judge fixed the market value of the acquired lands at Rs. 1,025/= per cent, besides awarding Rs. 75/= per cent being the compensation towards displacement. Challenging the said fixation, appeals were preferred by the beneficiary Electirity Board and those appeals were remanded to the learned Subordinate Judge as the beneficiary, namely, Electricity Board, was not impleaded nor been afforded opportunity. This Court set aside the award and judgment and remanded all the appeals to the learned Subordinate Judge of Tiruvallur for de novo consideration after impleading the Electricity Board.
11. After remand, and impleading the Electricity Board in all the references, common trial was conducted. The learned Subordinate Judge in all the 152 LAOPs fixed the market value of the acquired land uniformly at Rs. 385/= per cent besides awarded Rs. 100/= per cent being the compensation towards displacement to the persons interested. However it is pointed out that additional amount was not awarded as per Section 23(1-A) on the view that the acquisition was the subject matter of challenge by M/s. VGP Wonderland Ltd., an agreement holder, who challenged the acquisition and this caused the delay in passing the awards.
12. Under Section 18 of The Land Acquisition Act One Hundred and Fifty-Two LAOPs were referred to the Learned Subordinate Judge of Tiruvallur by the Land Acquisition Officer at the instance of persons interested as they were not satisfied with the amount of compensation awarded by the land acquisition officer. In all the 152 LAOPs common oral as well as documentary evidence were let in by either side. The learned Subordinate Judge framed the following points for consideration:-
"1. What is the market value of the acquired lands as on date of publication of Section 4(1) Notification ?
2. Whether the claimants are entitled to payment of higher compensation ?"
13. Both the points were considered together. Apart from the above two points in each LAOP an additional point has been framed as to what is the amount of total enhanced compensation in each LAOP the claimant is entitled to, and if so how much ?
14. On the earlier occasion, in respect of a batch of Forty-Two LAOPs the learned Subordinate Judge fixed the market value of the acquired land at Rs. 1100/= per cent as on date of 4(1) Notification. As against the said award, the Electricity Board, the present appellant preferred separate appeals. This Court set aside of the award of the learned Subordinate Judge passed in the said 42 LAOPs and remitted the matter back to the Court below for de novo trial, after impleading the beneficiary, namely, the Electricity Board. After the remand all the 152 LAOPs were consolidated and taken up for joint trial. Electricity Board, the requisitioning body, was impleaded in all the 152 LAOPs as one of the respondents. The 152 claimants, the Land Acquisition Officer and the Electricity Board produced common oral and documentary evidence in support of their respective cases. All the claimants together marked Exs.C1 to C34. The Land Acquisition Officer and the Electricity Board marked Exs.R1 to R63. The claimants examined two witnesses, P.W.1 Baskaran and P.W.2 Kulasekaran, while respondents examined R.W.1 Krishnamurthy, R.W.2 M. Narayanaswami and R.W.3 M.C. Subramanian.
15. On points 1 & 2, the learned Subordinate Judge fixed the market value of the acquired land at Rs. 385/- per cent, irrespective of the land being wet or dry. On that basis, in respect of issues 3 to 154, the learned Subordinate Judge fixed the total compensation payable in respect of each claimant at the rate of Rs. 385/= per cent, displacement compensation at the rate of Rs. 100/= per cent, besides directing payment of additional amount under Section 23(1-A), interest at 12% from the date of taking possession, solatium at 30% and interest at 9% under Section 28 for a period of one year and thereafter 15% per annum. Challenging the fixation of market value at Rs. 385/= per cent, and award of Rs. 100/= per cent towards displacement and award of interest as well, the present appeals have been preferred by the beneficiary, namely, the Tamil Nadu Electricity Board.
16. Challenging the fixation of market value at Rs. 385/= per cent, the beneficiary, namely, the Tamil Nadu Electricity Board has preferred this batch of appeals contending that the fixation of market value at Rs. 385/= per cent and award of Rs. 100/= per cent towards compensation for displacement is highly arbitrary and without any basis. There is no basis to fix the market value at Rs. 385/= per cent. The award of compensation at the rate of Rs. 100/= per cent towards displacement is illegal and contrary to law and that on the documents produced by the claimants, on whom the burden of proof lies, no enhancement in market value is called for or warranted on the facts of the case nor compensation towards displacement has been claimed or pleaded nor made out.
17. It is contended by the learned counsel for the appellant Electricity Board that the lands acquired are located in an island, without access or passage or road connection. The lands could be reached only by Catamaran or boats. The lands in Ennore island are separated by Buckingham canal and Pulicat Back Water Canal on the west, on the south by Ennore creak, and east by Bay of Bengal and northern side of Pulicat Lake Back Water and canal. There was neither cultivation nor there was much habitation, nor there were any demand for the lands in the island nor they are potential house sites. The lands under acquisition cannot be compared to the plots of lands on the main land, which were the subject matter of sale on the main land on either side of the Railway line and West of Buckingham Canal or Pulicat canal. The lands are either waste lands or agricultural lands and most of them were lying fallow, excepting stray cultivation of casurina or other crops in a small way. It is also contended that the lands are not potential house-sites as they are totally inaccessible, nor the habitants could reach the Railway Station, without crossing the Buckingham Canal or Ennore Creak by boat or Catamaran. Practically there was no habitation except fishermen and few others. Therefore, according to the learned counsel for the appellant-Electricity Board that the lands are waste lands or at worst agricultural lands and the claim of the persons interested that the lands are potential house-sites and it has to be valued as such, cannot be sustained at all.
18. It is further pointed out by the learned counsel for the beneficiary that the Court below having rejected most of the documents relied upon by the claimants, without any basis has arrived at the market value of the acquired lands at Rs. 385/= per cent, which is highly excessive and arbitrary. It is further pointed out that the lands are not income yielding and stray raising of Causurina here and there cannot be a ground to fix the market value by adopting capitalisation method. There is no evidence at all to find out as to what was the income from Casurina trees cultivated during the material period, prior to Section 4(1) Notification. In respect of sale deeds relied on by the claimants, it is pointed out that those are not comparable sales and the learned Subordinate Judge erred in law in fixing the market value of the land at Rs. 385/= per cent without any basis and no further increase at all is called for in the appeals preferred by the persons interested. It is further contended that the fixation of the market value of Rs. 385/= per cent on mere surmises or guess work and without valid basis cannot be sustained at all. In the absence of any material or basic document of comparable sale deeds, the fixation of market value on mere surmise is an illegality. The award of Rs. 100/= per cent as compensation towards displacement is contrary to law nor it is in terms of Section 23 nor it is authorised by law.
19. Per contra, Mr. Jeremiah, learned counsel appearing for the land owners on whose behalf appeals have been preferred as well as other learned counsel, who are respondents/persons interested in all the appeals and who have also lodged caveat, it is contended that the market value fixed is very low and that at any rate, no interference is called for with respect to the fixation of market value or award of compensation towards displacement. According to Mr. Jeremiah, learned counsel appearing for the claimants/land owners/persons interested, who have also filed independent appeals or lodged cross objections claiming enhancement, and also appearing for the respondents in the appeals preferred by the Electricity Board, market value fixed by the learned Subordinate Judge is very low and very conservative and the market value should have been fixed at Rs. 3,000/= per cent taking into consideration of the sale deeds marked on their side and in particular to sale deeds marked as Exs.C1 to C34 as well as data sale deeds referred to by the land acquisition officer in his award. It is contended by the learned counsel for the respondents-persons interested that in any event no interference is called for with respect to fixation of market value by the learned Subordinate Judge as just market value has been arrived at taking into consideration of the location of lands, its nearness to the Madras City, its nearness to Railway line, its nearness to various developed housing colonies and its importance. It is also pointed out that agreements were entered by all the land owners with M/s. VGP Wonder Land Limited to sell and purchase the lands prior to Section 4(1) Notification in respect of all the lands under acquisition, and this would show that there was a demand for the acquired lands.
20. In all the above appeals either preferred by the beneficiary, namely, Tamil Nadu Electricity Board or by the persons interested, the points that arise for consideration are :-
"A) What is the market value of the acquired lands as on 7.11.86, the date of Section 4(1) Notification ?
B) Whether the award of Rs. 100/= per cent as compensation towards displacement under Section 23 of The Land Acquisition Act is sustainable in law ?
C) Whether the claimants/persons interested are entitled to additional amounts under Section 23(1-A) ? If so, from which date and at what rate ?
D) Whether the claimants are entitled to payment of solatium ? If so at what rate ?
E) Whether the claimants are entitled to payment of interest on solatium ?
F) Whether the claimants are entitled to payment of interest in terms of Section 34 ?
G) Whether this Court could order restitution of the excess amounts, if any, already received by the land owners/persons interested pending the appeals ?
H) Whether payments already received by the land owners pending first appeal are not liable to be refunded ?
I) To what relief, if any, in the second set of appeals preferred by claimants as well as well as cross objections ?"
J) To what relief, if any, in the appeals preferred by the beneficiary, Electricity Board ?"
21. Before taking up the first point for consideration, it is essential to refer to certain pronouncements relied upon by either side in support of their respective contentions. Though it may not be necessary to refer to all the pronouncements relied upon by either side, it is but essential to refer to the law laid down by their Lordships of the Supreme Court governing fixation of market value of the land acquired under The Land Acquisition Act, 1894.
22. The burden of proof lies on the claimants who claim the particular market value over and above the value fixed by the land acquisition officer by producing evidence. This is the legal position as laid down by the Supreme Court in MANIPUR TEA COMPANY VS. COLLECTOR OF HEILKANDI . It has also been held that mere sales statistics referred by the land acquisition officer or others cannot ipso facto form the basis to determine the market value. Though it may not be necessary to examine the parties to such sale deeds, the Court has to consider in the proper perspective the entire evidence adduced and determine the market value.
23. In SHAJI KURIAKOSE & ANOTHER VS. INDIAN OIL CORPORATION , the Apex Court laid down the methods of valuation of land for determining the compensation payable under Section 23. In that respect, their Lordships of the Supreme Court held thus :-
"3. It is no doubt true that courts adopt comparable sales method of valuation of land while fixing the market value of the acquired land. While fixing the market value of the acquired land, comparable sales method of valuation is preferred than other methods of valuation of land such as capitalisation of net income method or expert opinion method. Comparable sales method of valuation 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 market value of the acquired land is not always conclusive. There are certain factors, which are required to be fulfilled, and on fulfillment of those factors the compensation can be awarded, according to the value of the land reflected 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 covered by sales and land acquired, it is open to the court to proportionately reduce the compensation for acquired land than what is reflected in the sales depending upon the disadvantages attached with the acquired land."
24. In SPECIAL DEPUTY COLLECTOR VS. KURRA SAMBASIVA RAO , the Supreme Court laid down that the court has to determine the market value on an objective assessment of the conditions prevailing in the open market, the nature of the user of the land to which the land was being put on the date of the Section 4(1) notification, the situation of the land, the income derived therefrom and all other relevant and attending circumstances. Such determination, it has been further held, should be just, adequate and reasonable. In other words, it must be just equivalent to what the land is capable of fetching in the open market between a willing seller and prudent buyer and the court has to sit in the arm chair of a bona fide, willing seller and prudent purchaser in the open market and seek an answer to the question where under the conditions prevailing in the market the purchaser would offer the same market value as the court has proposed.
25. In SPECIAL DEPUTY COLLECTOR VS. KURRA SAMBASIVA RAO, , the Apex Court further laid down thus:-
"11. It would thus be settled law that the Court is enjoined to determine the market value on an objective assessment of the conditions prevailing in the open market, the nature of the user of the land to which the land was put on the date of the notification, the situation of the land, the income derived therefrom and all other relevant attending circumstances. The market value so determined should be just, adequate and reasonable. In other words, it must be just equivalent to what the land is capable of fetching in the open market from a willing and prudent buyer. Therefore, the Court is required to sit in the armchair of a bona fide willing and prudent purchaser in the open market and seek an answer to the question whether in the conditions prevailing in the market he would offer the same market value as the Court has proposed."
26. It is also the equally well settled legal position that the claimants stand in the position of plaintiffs and the burden is on them to prove by adducing cogent and acceptable evidence that the lands are capable of fetching higher market value than what is determined by the land acquisition officer, which is only an offer. The burden to prove that the amount awarded by the land acquisition officer is not adequate is always on the claimant. Such burden could be discharged by adducing relevant and material evidence to establish that the acquired lands are capable of fetching higher market value than the amount awarded by the land acquisition officer. The very object of reference under Section 18 is to bring on record the principles, which the land under acquisition was capable of fetching in the open market as on date of the notification.
27. The paramount duty of the courts of facts is to subject the evidence to very close scrutiny, objectively assess the evidence tendered by the parties on proper consideration thereof, in the correct perspective, to arrive at adequate and reasonable market value. The circumstances and the attending facts in a given case would furnish the guidance to arrive at the market value of the acquired lands. It is very much relevant to consider the neighbourhood lands as are possessed of similar potentiality or other advantageous features or any special circumstances available in each case.
28. A fair and reasonable market value or adequate value always depends upon the evidence adduced, circumstantial evidence and probabilities arising in each case. The guidance would be whether a hypothetical willing vendor would offer the lands and the willing purchaser under normal circumstances would be willing to pay as a prudent mind under normal market conditions that prevails in the open market in the locality.
29. It is equally well settled that the best evidence of the value of property or the sale transaction in respect of acquired land to which the claimant is a party, the time at which the property was sold, the purpose for which it is sold, the nature of the consideration and the manner in which the transaction came to be brought out.
30. It has also been repeatedly held that court shall not indulge in feats of imagination, but it has to sit in the arm chair of a prudent and willing purchaser under the normal conditions of the market value and seek answer to the question whether such a purchaser would be willing to offer the amount proposed by the court after taking into consideration of the features of the land existing as on the date of the notification.
31. The claimants have to prove and demonstrate that the compensation awarded by the Collector is not adequate and that it does not reflect the true market value of the land as on the date of Section 4(1) Notification by adducing evidence on the relevant date as to what was the market value of the land in question. The above pronouncements have been relied upon by the learned counsel for the appellant.
32. Per contra, the learned counsel appearing for the respondents in all the appeals contended that when the lands which are potential house sites, the Courts will not be justified in ignoring this factor. In that respect, the learned counsel relied upon the pronouncement of the Apex Court in HASANALI WALIMCHAND (DEAD) BY LRS. VS. STATE OF MAHARASHTRA where the Supreme Court held that when an acquired land has future potential on account of its location, as the Chennai Metropolitan City is developing, along the railway line, the reference court has to take into consideration of the potentialities of the acquired lands and any failure in this respect vitiates the judgment.
33. The learned counsel for the respondents also relied upon the pronouncement in LAND ACQUISITION OFFICER REVENUE DIVISIONAL OFFICER, CHITTOR VS. L. KAMALAMMA (SMT) DEAD BY LRS & OTHERS , where the Apex Court held thus :-
"6. ... Further when no sales of comparable land were available where large chunks of lands had been sold, even land transactions in respect of smaller extent of land could be taken note of as indicating the price that it may fetch in respect of large tracts of land by making appropriate deductions such as for development of the land by providing enough space for roads, sewers, drains, expenses involved in formation of a layout, lump sum payment as also the waiting period required for selling the sites that would be formed.
7. The argument advanced by Shri Nageswara Rao that the classification by the Land Acquisition Officer was in order and ought not to have been interfered with by reference court or the High Court does not appeal to us. When a land is acquired which has the potentiality of being developed into an urban land, merely because some portion of it abuts the main road, higher rate of compensation should be paid while in respect of the lands on the interior side it should be at lower rate may not stand to reason because when sites are formed those abutting the main road may have its advantages as well as disadvantages. Many a discerning customer may prefer to stay in the interior and far away from the main road and may be willing to pay a reasonably higher price for that site. One cannot rely on the mere possibility so as to indulge in a meticulous exercise of classification of the land as was done by the Land Acquisition Officer when the entire land was acquired in one block and therefore classification of the same into different categories does not stand to reason."
34. The learned counsel for the respondents also relied upon the Division Bench judgment of this Court in SPECIAL TAHSILDAR, LAND ACQUISITION, MASTER PLAN COMPLEX, VIRUDHUNAGAR VS. G. RAJENDRA BOSE reported in 1995 (2) LW 99, wherein the Division Bench held that all potentialities of the land acquired have to be taken into account as part of the value of the land, more particularly, all advantages that the lands possess, present or future in the hands of the owner may reasonably be taken into consideration while fixing the compensation to be awarded. The above pronouncements are being pressed into service by the learned counsel for the respondents in all these appeals.
35. In the light of the above pronouncements, in the light of the oral as well as documentary evidence advanced in these batches, the location of the land, the distance or nearness or potentialities, market conditions in the area, fast urbanization, nearness to railway line, served by local electric trains, soil condition, road accessibility, similar advantageous features, relative value of the lands in the neighbourhood, distance from the bus route or railway line, bus stop or railway station, already existing buildings, schools, hospitals, market, public transport system, factories, existing colonies in the locality or other advantages or developmental activities, which are available at a distance from the acquired land or in and around the acquired land or in the locality, we have to fix the market value of the acquired lands.
36. Section 4(1) Notification came to be published on different dates. However, with respect to market value, it is fairly stated by the learned counsel on either side that there is no appreciable difference from one date to another date of publication of Section 4(1) and date adopted as the crucial date by the court below be taken as the date of publication of Section 4(1) Notification to fix the market value. The Land Acquisition Officer considered 99 data sales and took data sale No. 21 into consideration. Under data sale No. 21, an extent of 1 acre 37 cents comprised in Survey No. 246/2 was sold for a consideration of Rs. 6500/=. Under data sale No. 82, lands comprised in Survey No. 29/1 measuring 22 cents and 78 cents in Survey No. 209/2 1A in all aggregating to 2 acres has been sold at Rs. 11,200/=, besides a well valued separately. On the basis of the said two data sales, the Land Acquisition Officer arrived at an uniform market value for the acquired lands at the rate of Rs. 65.70 per cent for nanja land and Rs. 50/= per cent for dry lands in both the villages. The Land Acquisition Officer out of 99 data sales excluded Data Sale Nos. 1, 5, 6, 7, 8, 12, 13, 17, 65, 83 to 85 and 95, as they relate to Grama Natham and they are not comparable sales in the Ennore island in respect of agricultural lands. The Land Acquisition Officer did not accept data sale Nos. 14, 15, 20, 22, 28, 63, 74 and 87 and excluded the same from consideration as they are not sales of comparable lands. It is pointed out that the Land Acquisition Officer fixed the market value at Rs. 65.70 per cent for wet land and Rs. 50/= per cent for dry lands, but he has not taken into consideration of the data sale Nos. 19, 35, 36, 89 and 98 without disclosing any valid reason. The learned Subordinate Judge concluded that the Land Acquisition Officer has not taken the highest sale, which the data sales fetched even among the data sales referred to by him, instead has taken the minimum value, which cannot be sustained in law. In this respect, the learned Subordinate Judge relied upon the pronouncement of this Court in STATE OF MADRAS VS. B.SEETHARAMAMMAL reported in 1972 (1) MLJ 58. While following the said pronouncement in 1972 (1) MLJ 58, the learned Subordinate Judge examined the evidence both oral and documentary adduced by either side afresh and arrived at the market value of the acquired land at Rs. 385/= per cent as on 12.6.1985, the date of Section 4(1) Notification.
37. It is admitted by C.W.1 as well as C.W.2 that the acquired lands are part of Ennore and Puzhudhivakkam revenue villages and they are agricultural lands in Ennore island even according to Exs.C-22 to C-29, the adangal extracts. It is also admitted by them that the lands were under sporaidic cultivation either by raising dry crops or in a portion nanja crop has been raised. C.W.1 has also claimed that he has raised Casurina trees (savukku) or Cashew trees, but no acceptable evidence has been let in to show the yield or annual income. It is the evidence that from Casurina cultivation he was getting a sum of Rs. 5000/= per acre every year and so also from Cashew trees. C.Ws.1 and 2 have vaguely or generally stated the income from Casurina cultivation. But they have miserably failed to establish as to whether there is any other persons interested have raised Casurina or Cashew, nor they have produced any documents even to estimate the annual income by the cultivation of casurina or cashew cultivation nor an independent witness has been examined to prove the annual yield. There is no evidence worth acceptance to establish the annual income has been adduced. The Court below also disbelieved the evidence let in this respect. We also agree with the said findings.
38. Exs.C.22 to 29 are adangal extracts and some of them would show that casurina or cashew trees were cultivated in one or two fields. But there is nothing to show that what was the average annual yield or income per acre by cultivation of casurina or cashew. The evidence of C.Ws.1 and 2 in this respect is totally silent and unsatisfactory. Mr. Jeremiah, learned counsel appearing for the persons interested took the court through the evidence of C.Ws 1 and 2. So also Mr. Rajeswaran, learned counsel appearing for the appellant in all the appeals. On a consideration of oral evidence of C.Ws 1 and 2 as well as R.Ws 1, 2, and 3 we find that there is no material to show as to in how many acres casurina was cultivated or cashew trees were raised and what was the average annual income from such cultivation of trees. There is nothing to show in the oral evidence as to what was the average income derived by raising casurina or cashew trees. No independent witness has been examined nor any accounts have been produced to establish average annual income per acre by the raising of casurina or cashew cultivation. That apart, such raising, if at all was in one or two fields and not the entire extent of the acquired lands. In the circumstances, we find that the learned Subordinate Judge rightly declined to adopt capitalisation method to assess the market value. We do not find any illegality in the approach of the learned Subordinate Judge in fixing the market value on the basis of comparable sale deeds. No evidence, much less independent evidence who is a contractor who purchased casurina trees or cashew on payment of a particular sum in a particular land was adduced. Therefore it is not possible to accept or believe that Rs. 5,000/= per acre was the income derived by raising casurina or cashew cultivation. The contention advanced by Mr. Jeremiah cannot be countenanced and land owners have miserably failed to establish the average annual yield from the lands acquired.
39. It is admitted that the acquired lands are located in Ennore, island without any access or regular ferry service by boat and only with very great difficulty alone one could reach the lands by using Catamaran or other country boats, either by crossing Buckingham Canal or Pulicat canal or by crossing Ennore creak. The lands acquired being located inside an island, which are inaccessible on all sides from the main land. The acquired lands are inside the island separated from the main land by Buckingham Canal and Pulicat canal on the western side, Ennore creak on the southern side and Pulicat Lake back water and canal on the northern side and east by Bay of Bengal. The lands cannot be compared to the lands located on the main land located either or on the western side of the Buckingham Canal or on either side of the Railway line or Bus route, where a number of housing colonies referred to by the claimants have developed apart from existing industries. Though Mr. Jeremiah relied on a census report and contended that there is direct access, the evidence of P.W.s 1 and 2 as well as R.W.s 1 to 3 do not support such a contention. That apart, Exs.R-63 would demonstrate that such a contention cannot be sustained on the facts of the case.
40. Ex.R6, Plan is not authenticated. But Ex.R63 is an Official Map and it has been rightly accepted as giving the correct location of the land well within Ennore island and description of the lands vis-a-vis surrounding locations such as Bay of Bengal, Ennore creak, Buckingham canal, Pulicat canal or Pulicat Lake and Back Water. There was no objection at all to mark Ex.R63 and only on that basis both the parties have proceeded further and made their claims. For marking Ex.R63, no objection at all has been raised. The claimants cross examined R.Ws.1 and 2 on the basis of Ex.R63. As seen from Ex.R63, not only Ennore and Puzhudhivakkam villages but also other habitations on the northern part of Ennore island are inaccessible and fishermen and few other were the habitants. The island was very thinly populated and it had no facility at all nor it is capable of commanding facilities nor they have potentialities of whatever nature.
41. In the circumstances, we hold on facts that Ennore Island is not accessible from all the four sides from the main land. The learned Subordinate Judge rightly took the view that the land in Ennore and Puzhudhivakkam villages, which are the subject matter of acquisition cannot be compared to the lands on the main land or the lands on the western side of Buckingham Canal or near the Railway line or the road nor they are potential house sites, but they are to be valued as agricultural lands on the basis of comparable sale of lands in Ennore island itself.
42. It is also rightly admitted that Ennore island has been classified as "Entertainment Zone" as seen from the Notification issued by the Madras Metropolitan Development Authority by virtue of powers conferred under The Tamil Nadu Town and Country Planning Act, 1972. Therefore, as on date of Section 4(1) Notification thereafter and even long prior to it also the lands falling within a specified zone could not be used for putting up houses and cannot be considered as potential house-sites. The entire lands continued to remain as agricultural or waste lands.
43. The Notification issued by MMDA has been marked as Ex.R12 and it is clear from Ex.R12 as well as Ex.R59, which would show that the seashore have to be preserved, as seen from the Notification issued by the State Government in G.O.(Per) No. 11, Environment Department dated 8.3.1984. Ex.R12 dated 7.4.1995 is a letter written by MMDA, which would show that the Ennore village has been zoned for open space recreation land as per the Master Plan published in the year 1975.
44. According to Ex.R59, the G.O., issued by the Environment Department dated 8.3.1984, no construction activities could be undertaken within a distance of 500 meters from the sea. Ex.R61 is the Environment guidelines relating to development of beaches. Therefore, not only there is a restriction by the Planning Authority, namely MMDA under The Tamil Nadu Town and Country Planning Act, 1972, but also there is a restriction under The Environment and Pollution Control Rules for user of the acquired lands as house sites. All these notifications were much prior to Section 4(1) Notification. It may be that the land owners have been disabled from using the land for purposes other than agriculture and they could not use the lands as house sites by virtue of these Notifications or classifications. That apart, the entire acquired land is inaccessible from all the four sides and, hence, they are not potential house sites. But it is clear that the lands as such are pure and simple agricultural lands and most of them were lying fallow as waste lands and they are not house sites, much less potential house-sites, nor they could be evaluated as potential house-sites nor the sale of plots located in the main land are comparable at all.
45. Next we have to consider comparable sale deeds produced by either side and marked as exhibits. Ex.C21 dated 2.5.1984 is a copy of the proceeding of the Assistant Commissioner of Urban Land Tax. The Assistant Commissioner, Urban Land Tax fixed the marked value of Survey No. 241, 242 of Ennore village at Rs. 200/- per ground, which works out to Rs. 40/= per cent of thereabout. Therefore, Ex.C21 assuming it could be relied upon for the purpose of evaluation, it is of no help for the claimants. Excepting solitary assessment, in respect of remaining large extent there is no such assessment at all. Exs.C-22 to C-29 are Adangal Extracts, which would show raising of crops like groundnut or paddy or casurina or cashew cultivation in few of the survey numbers, but they are not even continuous. But it is only in negligible extent and all other lands were lying fallow. At any rate, these exhibits would show that the lands were agricultural lands or most of the lands were lying fallow as such during the fasili years 1381 to 1396 as well. Therefore, the lands have to be evaluated at the most only as agricultural lands and not as house-sites much less potential house-sites, since they are not accessible at all from all directions, nor there is anything to show that number of houses have come up in recent years in Ennore Island and/or immediately before Section 4(1) Notification. The habitation in the two villages is very thin as admitted by Exs.C.Ws.1 and 2 and as deposed by R.Ws.1 and 2 as well. The villages have not at all developed, nor new houses have come up in the island nor there exists the minimum facility in the island for development of housing colonies. The evidence is very scanty and the habitants in the Ennore island is very scarce. There were no demand for house sites in the island as it is not at all accessible and not even minimum facilities are available even for fisherman and others, who live in the ennore island.
46. Taking up the sale deeds produced by the claimants/land owners, namely, Exs.C1 to C33, it is seen that Exs. C6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 34 do not relate to sale of lands in Ennore or Puzhudhivakkam villages, but they relate to Athipattu, Kathivakkam, Nandhiambakkam and Vallur villages, which lands are not at all comparable to the acquired lands, since they are sale of house plots in well developed colonies on the main land with all facilities surrounded by factories served by bus routes and railway lines and not in Ennore island. All those documents relate to smaller extent used for house-sites either one ground or less than one ground, in Kathivakkam / Athipattu / Nandhiambakkam / Vallur villages where residential colonies have developed around railway line or on bus route and they are sold as house-sites either as vacant plot or with structure. Those documents cannot be taken into consideration as comparable sales, as under those exhibits small house-sites in developed housing colonies on the main land have been sold in the said villages and they are accessible freely from the Railway line or by bus route as the case may be and they are surrounded by various industries and housing colonies. Those sales are not comparable sales, nor they could be taken into consideration. Exs. C15, 16,17, 18 30 and 31 assuming for the purpose of argument could be taken as comparable sale deeds, but they came into existence much after Section 4(1) Notification published on 7.11.1986 during the year 1990-1994 or 1995. Therefore the Court below rightly excluded Exs. C15, 16, 17, 18, 30 and 31.
47. The crucial date for fixing the market value of the acquired lands is the date of publication of Section 4(1) Notification, which has been accepted by either side as 7.11.1986. Exs.C2, 3, 4, 5, 6, 32 and C33 are in respect of lands in Puzhudhivakkam and Ennore villages.
48. At or about the date of Publication of Section 4(1) Notification, which is the crucial date, the sale on an average ranges from Rs. 30/= to Rs. 300/= per cent. But most of the sales are in respect of smaller extent viz., few cents. Largest sale being under Ex.C4 dated 16.9.1985, whereunder two acres of land has been sold for Rs. 40,000/=, which works out to Rs. 200/= per cent as on 16.9.1985. Under Ex.C5 dated 30.12.1985, an extent of 30 cents of land in Ennore village with a tamarind tree valued at Rs. 1,100/= was sold for Rs. 10,100/=, which works out to Rs. 300/= per cent. The rests of the land covered by sale deeds Exs.C1 or C2 or other documents are in respect of small plots, which cannot be taken into consideration at all. Ex.C2 works out to Rs. 250/= per cent under which 30 cents of land has been sold for Rs. 7500/= as on 5.6.1985. Under Ex.C3, 15 cents of land has been sold at the rate Rs. 250/= per cent as on 4.9.1982. Ex.C4 as already pointed out is in respect of the sale of 2 acres of land, which works out to Rs. 200/= per cent.
49. A perusal of Ex.C1 produced and marked through C.W.1 would show that a house plot measuring 2160 sq.ft on the main land portion has been sold for Rs. 3,480/= and it works out to Rs. 701.61 per cent and the same being not a comparable sale, cannot be taken as the basis to assess the market of value of large extent as small extent or piece of land cannot be the basis to arrive at the market value of the larger extent of lands. Further, it is part of an approved layout located in the main land and not in Ennore island.
50. It is just and reasonable to take into consideration of Exs.C2 and C3 under which an extent of 30 cents or 50 cents have been sold at the rate of Rs. 250/= per cent as they are comparable to the acquired lands. Ex.R1 would show that an extent of 137 cents have been sold at Rs. 50/= per cent as on 27.8.1984 in Ennore village. So also under Ex.R2 dated 12.8.1985 an extent of 200 cents have been sold at Rs. 70/= per cent. Ex.R5 is sale deed dated 31.5.1985, which would show that large extent of 2485 cents has been sold at Rs. 155 per cent Exs.R. 12, 14, 15, 16, 18, 19, 20 to R58 relate to sale deeds in Ennore or Puzhidivakkam villages in ennore island during the years 1982, 1983, 1984, 1985, and 1986 and the sale consideration ranges from Rs. 29.25 onwards to a maximum of Rs. 125/= per cent. Ex.R5 works out to Rs. 155/= per cent. Exs.R20 and 21 works out to Rs. 100/= per cent. Ex.R22 works out to Rs. 95.89 per cent. Exs.R34, 35, 36, 37, 38, 39, 40, 41 and 42 works out to Rs. 155/= per cent, while the remaining Exs.R43 to 55 works out in the range of Rs. 10 to Rs. 45/= per cent or thereabout. Those documents also relate to sales in Ennore village or Puzhudhivakkam village inside the island and the sale deeds are not smaller plots but of a considerable extent of 30 cents to few hundred cents or thereabout. These documents reflect the value of agricultural lands in Ennore island at or about the time of publication of Section 4(1) Notification on 7.11.86 and the maximum of price fetched during the year 1985 or on the crucial date works out to Rs. 155/= per cent. These exhibits have been produced by the respondents for whose benefit the lands have been acquired. But Ex.C2 dated 5.6.1985 is a sale of 30 cents of agricultural land in Ennore island, which works out to Rs. 250/= per cent, Ex.C3 dated 4.9.1985, is a sale of 15 cents, which works out to Rs. 250/= per cent, Ex.C4 is an extent of 200 cents and which works out to Rs. 200/= per cent and they are all agricultural lands as the acquired lands. Ex.C5 is dated 30.12.1985, whereunder an extent of 30 cents, which is a plot with tamarind tree valued at Rs. 1,100/= has been sold for Rs. 10,100/=. The land value as recited works out to Rs. 300/= per cent, which is the highest price the said sale fetched in the island.
51. The learned Subordinate Judge while fixing the market value of the acquired land as on 7.11.1986, the date of publication of Section 4(1) Notification, after considering the documents produced by either side had taken into consideration of data sale No. 72 in respect of Survey No. 177/1A measuring 1 acre 60 cents, which works out to Rs. 275/= per cent as on 12.6.1985 and added 40% thereon and arrived at Rs. 385/= per cent. This again is without any basis. This again has been arrived at without the production of the data sale deed. Without marking a document, reliance placed on data sale cannot be acted upon and it is not open to the parties to rely upon the said sale.
52. While taking into consideration of the location and surrounding area and the highest price the comparable sale deed fetched, passage of time, we estimate the fair market value of the acquired land at Rs. 300/= per cent, we also hasten to add that there is no material to show that the prevailing market value was Rs. 385/= per cent as fixed by the Court below. On consideration of the sale deeds produced by either side in respect of agricultural lands of larger extent as well as considerable extent, as the market value ranges from Rs. 30 to Rs. 300/= per cent under those sale deeds and as those sale transactions being bona fide and anterior to Section 4(1) Notification, we fix the market value of the acquired lands by taking a very liberal view at Rs. 300/= per cent as it was the highest price the comparable sale has fetched. The market value of Rs. 300/= per cent will be the fair market value as on 7.11.86, the date of publication of Section 4(1) Notification in respect of all the lands acquired and forming the subject matter of acquisition. The learned Subordinate Judge fixed the market value of the acquired lands at Rs. 385/= per cent. We find that none of the exhibits produced by the claimant or respondent would support the said conclusion. There is no basis for such fixation.
53. Taking into consideration of the entire facts and locality, infrastructures available, comparable sales, passage of time, we fix the market value at Rs. 300/= per cent as on 7.11.86. It is also rightly pointed out and relied upon by the counsel for the appellant that admittedly a number of land owners as deposed by P.W.s 1 and 2 have entered into an agreement of sale of very acquired lands at the rate of Rs. 150/= per cent to M/s. VGP Wonder Land Private Limited before Section 4(1) Notification. But that cannot be the basis at all since no copy of agreement has been produced, nor the said M/s. VGP Wonder Land Private Limited has come forward with a claim in this respect by producing sale agreement. The admission of claimants that agreed to sell at Rs. 150/= per cent in respect of the very acquired lands cannot be ignored at all.
54. Taking a very considerate view, location of the lands, comparable sale deeds produced by either side and valuing the transactions between a willing vendor and a prudent purchaser, we fix the market value of the acquired land at Rs. 300/= per cent and the documents produced by either side will not support any value exceeding Rs. 300/= per cent. Hence, point "A" is answered thus.
55. While arriving the market value at Rs. 385/= per cent, the learned Subordinate Judge has awarded Rs. 100/= per cent towards displacement of the land owners and added Rs. 100/= to Rs. 385/= and fixed the compensation at Rs. 485/= per cent. This addition of Rs. 100/= per cent in our view cannot be sustained at all. This will not fall under the 4th clause in Section 23 of The Land Acquisition Act, nor it will fall under Clause fifthly. Section 23 fifthly reads thus:
"fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change."
56. There is no change of residence of the persons interested in in respect of acquired lands or place of business, as none of the claimant was a resident of Ennore island but factually they are residents of Madras city or outside city on the main land nor it involved expense for such change or displacement, as what has been acquired is agricultural lands and not a place of business or residential occupation and it is not a habitation as such.
57. In this respect, the attention this Court is drawn to the pronouncement of the Supreme Court in JASPAL SINMGL VS. UNION OF INDIA & ANOTHER , whereunder the Supreme Court held thus :-
"5. Equally, clause fifthly is only the consequence of acquisition of the land by the Collector. If the person is compelled to change his residence or place of business by reason of the acquisition, reasonable transit expenses incidental to such change, in other words, transport charges incurred for the displacement and carrying the material due to displacement are required to be awarded, in addition to the compensation determined. But the mere fact that the claimant happened to secure alternative land at a far-off place and that too said to be an insecure place, even if it is assumed to be so, cannot be a ground to contend that he is also entitled to compensation under clause fifthly due to change of business and setting up of the business in an insecure place. Under these circumstances, the learned Single Judge perhaps may be right in granting the amount only for a reasonable period of 6 to 7 months on the facts in this case. We are not expressing any concluded opinion on it. But it cannot be laid as a principle of law that loss of business till the claimant is resuscitated in his business in securing a place and the expenses incurred in that behalf also should always be a component of the determination of the compensation under Section 23(1)."
This is not the case here and factually there is no displacement of the land owners as factually the land owners were not residents of Ennore island.
58. Recently, a Division Bench of this Court in SPECIAL TAHSILDAR, LAND ACQUISITION VS. RATHINA REDDY reported in 2003 (2) L.W. 267, while considering the scope of Section 23, in particular Clause fifthly held thus :-
"18. If we consider the meanings given in the various dictionaries and the legal pronouncements referred supra, the following would emerge, The word `business' has not been defined or explained in the Act or in the Rules framed thereunder. The word `business' has to be understood as
- trade, or
- occupation
- profession, or
- livelihood, which occupies time, attention and labour of a person but will not include if done as a hobby or for pleasure or as a sport. In the absence of any indication in the Act, all occupations are to be treated equally and there are no reasons to give a restricted meaning. Agriculture is also business just as a hotel business or running a provision store, so long it is not carried on as a hobby or pleasure. To claim the benefit of compensation, the burden is on the owner of the land to show that the acquired land was under cultivation on the date of notification issued under Section 4(1) of the Act.
19. The next question is what is the reasonable compensation to be fixed. This Court in the decision (The Sub Collector, Dindigul v. Lakshmi Ammal) had to consider what can be the reasonable compensation in respect of a hotel business when such a business place is being acquired and this Court held that the hotel owner will be entitled for six months net income as compensation in cases where the emergency provisions are not invoked and in cases where emergency provisions are invoked, compensation of nine months net income would be reasonable. But so far as cases of this nature are concerned, the question of loss of goodwill earned or developing customer relationship would not arise. After all, in all these cases as Supreme Court has repeatedly held, the Court has to do some guess work while fixing the compensation. This Court is of the considered view that the compensation of 9% of the market value would be just and reasonable in cases where emergency provisions are not invoked and 12% where the emergency provisions are invoked.
20. But as far as the present case is concerned, the respective land owners have not claimed this compensation. Further, the land owners have not let in any evidence that on the date of Section 4(1) Notification, the acquired lands were under cultivation and that was done by them only as a livelihood and not as a hobby or for pleasure. In these circumstances, it has to be held that the reference Court has erred in awarding Rs. 50/= over and above the market value fixed by it at Rs. 500/= per cent."
59. In the present case, no claim has been made by land owners under this heading and no evidence has been let in to show that the lands were actually under personal occupation or place of business or living. But on the other hand, almost all the land owners have agreed to sell their lands at the rate of Rs. 150/= per cent to M/s. VGP Wonderland Private Limited as admitted by P.W.s 1 and 2 even prior to Section 4(1) Notification. Therefore, it is clear that they were not depending on the acquired lands, nor resident, nor they are displaced by the acquisition. It is also not in dispute that all of the owners are residing on the main land and in the city of Madras. Therefore, the award of Rs. 100/= per cent by the learned Subordinate Judge cannot be sustained at all either factually or legally. As seen from the appeal memorandum as well as the claim statement before the Court below or before the land acquisition officer, no such claim as compensation for displacement has been pleaded or made by the claimants and the evidence also is silent in this respect. Therefore, we disallow the award of Rs. 100/= per cent towards displacement compensation and set aside the direction issued by the learned Subordinate Judge in awarding Rs. 100/= per cent in addition to the market value under the head displacement to each of the claimant before it. Hence, point "B" is answered against the claimants/land owners and in favour of the beneficiary.
60. Taking up the point "D", as regards the payment of solatium, there is no controversy and the claimants are entitled to solatium at 30% as has been rightly held by the Court below.
61. As regards the claim that the claimants are entitled to interest on solatium, the legal position is well settled by the recent pronouncement of a larger Bench of the Supreme Court in SUNDAR VS. UNION OF INDIA . Therefore, we hold that the claimants are entitled to interest on solatium. Hence, Point "E" is answered in favour of the claimants/land owners.
62. On facts we hold that the claimants are entitled to payment of amount in addition to the market value at the rate of 12% per annum on the market value, as the awards in these cases have been passed after the introduction of Amendment Act, 1984 and the award also came to be passed during the year 1989, after the introduction of Section 23(1-A) by the Central Act LXVIII of 1984. The filing of writ petition by M/s. VGP Wonderland Ltd., a third-party and getting orders of stay and consequential delay, if any, in passing awards cannot be placed against the claimants, who are the persons interested and who have not challenged the acquisition and deny them the benefit of additional amount under Section 23(1-A) of the Act from the date of Section 4(1) Notification till date of taking possession at 12%. Hence, point "D" is answered in favour of the land owners/persons interested.
63. Mr. Jeremiah, the learned counsel appearing for the persons interested, who have preferred separate appeals claiming enhancement as well as for the cross objectors in some of the appeals sought for enhancement of the compensation. But there is no material at all to enhance the market value or compensation as sought to be claimed in those appeals as well as in cross appeals in the light of the above discussions. All the appeals preferred by the land owners and cross objections are devoid of merits and they are dismissed, but without costs. Hence, point "I" is answered against the land owners and in favour of the beneficiary viz., Electricity Board.
64. In the result, the independent appeals (second batch) preferred by the land owners and the cross appeals preferred by the land owners as well will stand dismissed, but the parties shall bear their respective costs. The appeals preferred by the Tamil Nadu Electricity Board will stand allowed proportionately but without costs. Hence, point "J" is answered in favour of appellant/Electricity Board in the first batch of appeals.
65. Mr. Jeremiah, while placing reliance upon the judgment of the Supreme Court in DEVI JAIN VS. STATE OF HARYANA & ANOTHER reported in 2001 (8) Supreme 541 very eloquently and persuasively contended that in respect of excess amounts, if any, already received, by the claimants pending the appeals, this Court may hold that no amount need be refunded by the land owners to the Electricity Board as it will work hardship.
66. This Court finds that in the judgment referred to by Mr. Jeremiah, their Lordships of the Supreme Court on the facts of the said case and taking note of certain special circumstances, held that amount, if any, already received by the appellant therein need not be refunded back. With respect we hasten to add that their Lordships of the Supreme Court have not laid out such a proposition of law that amount paid pending the appeal or pending the proceedings need not be refunded in the event of the appellate court reducing the market value or total compensation payable in land acquisition cases. The pronouncement of the Supreme Court relied upon has to be confined to the facts of the said case as their Lordships have held that they are issuing a direction looking into the overall facts and circumstances of the case decided by their Lordships. The Supreme Court issued such directions, while holding that it is appropriate to uphold the legal position, but at the same time observed that excess payments already received by land owners need not be refunded. It is a special direction on the facts of the said case. In this respect, the Apex Court held thus :-
"The High Court on appeal partly allowed the appeal of the appellant and reduced the market value by one third of the price awarded by the referring Court. The submission made on behalf of the claimant is that the respondent-State has neither laid any foundation nor adduced any evidence before any authorities hence this reduction of the amount of compensation by one third is not sustainable. The submission on behalf of the appellant is that the appellant has been paid compensation at the rate of Rs. 27/= per square yard. On the other hand, learned counsel for the respondent submitted that the reduction of compensation by one third was valid and was justified and was in accordance with law and does not call for any interference. Looking to the overall facts and circumstances of this case, we feel it appropriate to uphold the legal position as upheld by the High Court viz., reduction by 1/3-rd, but make it clear if any amount already received by the appellant, need not be refunded back. With the above observations the present appeals are disposed of. Cost on the parties."
67. In respect of payments or amounts, if any, received in excess of the market value that is fixed by this Court, in these batch of appeals pursuant to interim orders passed pending the earlier appeals, it cannot be held as a universal rule of law that the same need not be refunded as that is not the proposition of law that has been laid down by the Supreme Court. On the facts of this case also we are not persuaded to hold so. It is well settled law that when an appeal is allowed or the judgment of the lower court is reversed or modified, the consequence automatically follows. In case if excess payments be received the rule of restitution operates automatically, less there is no meaning in preferring appeal or for the judgment and award of lower court being reversed or modified. This contention advanced by Mr. Jeremiah, we are not persuaded to sustain. That apart, on the earlier occasion, without impleading the electricity board, market value was fixed, but it was set aside by this Court and remitted back and, therefore, in a de novo trial, the market value was fixed on the evidence let in after remand. Therefore, the legal consequence that automatically follows being refund of excess amounts, if any, collected by the claimants pending appeals as per interim orders and as such this contention cannot be countenanced by a Court of law. Hence, point "G" is answered against claimants/land owners, who are the respondents in the first batch of appeals preferred by the beneficiary, the Electricity Board.
68. In the result, we fix the market value of the acquired land at Rs. 300/= per cent with 30% solatium, with interest and interest on solatium as provided under Section 34 of the Act, and additional amount in terms of Section 23(1-A) as well at 12% from 7.11.86 and till date of the award.
69. The claimants being agriculturists, whose only holding have been acquired and as both parties have succeeded in part, they shall bear their respective costs in these batch of appeals preferred by the Electricity Board. Consequently, connected miscellaneous petitions are closed. The first batch of appeals preferred by the Electricity Board shall stand allowed partly and the Cross Objections as well as the second batch of appeals preferred by land owners will stand dismissed.