Abdul Samad v. Power Grid Corporation of India Ltd. and Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 3RD DAY OF APRIL 2014/13TH CHAITHRA, 1936** ## **CRP.No. 544 of 2009 ( )** **-----------------------O.P.(E.A). NO.205/2002 OF ADDITIONAL DISTRICT COURT, ALAPPUZHA.** **.........** ## **REVISION PETITIONER/PETITIONER:** **------------------------------------------------------** **ABDUL SAMAD, S/O.MOHAMMED KUNJU, SURAJ, PAYIKUZHI MURI, OCHIRA VILLAGE, KARUNAGAPPALLY.** **BY ADV. SMT.S.JASMINE.** ## **RESPONDENTS/RESPONDENTS:** **------------------------------------------------** ## **1. MANAGING DIRECTOR,** **POWER GRID CORPORATION OF INDIA LTD., NANGIARKULANGARA P.O., HARIPAD.** ## **2. SECRETARY,** **KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM.** **R1 BY ADV. SRI.MILLU DANDAPANI. R2 BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB.** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-04-2014, ALONG WITH CRP. NO. 554 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **K. HARILAL, J.** ## **------------------C.R.P. Nos.544 & 554 of 2009 ------------------------------------Dated this the 3[rd ] day of April, 2014** ## **COMMON ORDER** The revision petitioner is the petitioner in O.P. (E.A) Nos.205 of 2002 and 612 of 2002 on the files of the Additional District Judge, Alappuzha filed under Sec.51 of the Indian Electricity Act read with Sec.16 of the Indian Telegraph Act, 1885 claiming additional compensation towards cutting of trees and diminution of land value. The revision petitioner is the owner and in possession of 3.16 acres of land in Sy.Nos.294/1 and 295/1 of Thamarakulam village in Mavelikkara Taluk from which the 1[st] respondent cut and removed 339 yielding rubber trees and 41 yielding coconut trees on the first occasion and two yielding coconut trees and 15 yielding rubber trees on the second occasion for drawing KayamkulamEdamon 220 K.V line. A sum of Rs.4,18,176/- was awarded for the first cutting and a sum of Rs.10,691/- **C.R.P. Nos.544 & 554 of 2009** **2** was awarded as compensation for the second cutting. Feeling aggrieved, he had preferred the above O.Ps and earlier the O.Ps. were disposed of by a common order dated 6[th] April, 2006, whereby, the court below enhanced the compensation for second cutting from Rs.10,691/- to Rs.15,840/- and for first cutting, the compensation of Rs.4,18,176/- was enhanced to Rs.8,98,053/- and thereby granted an additional compensation of Rs.4,79,876/-. Feeling aggrieved, both parties had preferred revisions before this Court as CRP Nos.961 & 962 of 2006 by the petitioner herein and CRP Nos.172 and 230 of 2007 by the respondent. This Court, after considering the legality and propriety of the order passed by the court below set aside the order under challenge and remitted the case to the trial court to pass order afresh in view of the decision reported in _**K.S.E.B v. Livisha**_ **(2007 (3) KLT 1(SC)** . After remand, the petitioner had examined PWs.3 and 4 in addition to PWs.1 and 2 and no evidence had been **C.R.P. Nos.544 & 554 of 2009 3** adduced from the part of the respondent. After reconsidering the evidence, the court below passed the impugned order under challenge by which, for the first occasion of cutting, challenged in O.P. (E.A.) No.205 of 2002, the enhanced compensation of Rs.2,42,302/was given and for the second occasion of cutting which was challenged in O.P.(E.A) 612 of 2002, an enhanced compensation of Rs.5,149/- was given to the revision petitioner. The legality and propriety of this order is under challenge in this revision petition. 2. The learned counsel for the revision petitioner submits that the additional compensation given by the court below is inadequate and disproportionate with the actual loss suffered by the revision petitioner by the drawing of the lines. The learned counsel confined his argument to two counts. Firstly, the learned counsel contends that the court below went wrong by taking 2,712 kgs. as gross yield after discarding the mahazar wherein the gross yield is shown as 4,068 Kgs. In **C.R.P. Nos.544 & 554 of 2009 4** view of the difference in the gross yield shown in mahazar and DVS, PW2 was examined and in his evidence PW2 clarified that the gross yield shown in DVS is a mistaken quantity and the actual gross yield is correctly shown in mahazar. But the court below went wrong by holding that burden is on the petitioner to show that it is a mistake. The sum and substance of the above argument is that the court below ought to have taken 4,068 Kgs. as gross yield relying on the mahazar. Secondly, the learned counsel contends that the court below went wrong in determining the market value, diminution value of the land and so also the affected area. Ext.A1 shows that market value of the property, which is situating only 1 K.M. away from the pliant schedule property is Rs.22,245/- but the court below has taken Rs.5000/- only. Similarly, the court below went wrong while discarding the commission report which categorically compared the potentiality of the plaint schedule property with Ext.A1 property. The **C.R.P. Nos.544 & 554 of 2009 5** Commissioner had categorically reported that important public offices, banks, factories etc. are situating only half kilometer away from the petition schedule property. 3. The learned counsel drew my attention to the sketch prepared and produced by the commissioner and submits that the drawing of the lines divided the plaint schedule property into four parts. By drawing the line through the middle of the plaint schedule property, which is lying in a rectangular shape in a lengthwise manner reduced the market value and utility of the property. But the diminution of land value and the affected area determined by the court below is not in commensuration with the actual diminution. 4. Per contra, the learned counsel for the respondent advanced arguments to justify the determination of additional compensation in the impugned order. According to him, the gross yield shown in mahazar is only a mistake and gross yield shown in DVS is the the correct quantity. DVS is more ## **C.R.P. Nos.544 & 554 of 2009** ## **6** reliable than the mahazar. The petitioner has not adduced any evidence to show that the mistake crept in the DVS and actual gross yield is 4,068 Kgs. The evidence adduced by the petitioner after the remand by examining Pws 3 and 4 would not improve the claim of the petitioner as regards the value of trees which were cut and removed from the plaint schedule property. As regards the determination of compensation for diminution of land value the court below rightly discarded Ext.A1 property which is situating 1 Kilometer away from the petition schedule property. The petition schedule property is not comparable with Ext.A1 property which is situating adjacent to PWD road, where as the petition schedule property is situating adjacent to the gravel road. These two properties are not comparable for the determination of the market value. At all points, the method adopted by the court below for the determination of additional compensation is just and proper and there is no circumstances calling **C.R.P. Nos.544 & 554 of 2009 7** interference of this Court under the revisional jurisdiction. 5. I have given my anxious consideration to the argument advanced by both counsel. In view of the rival contentions, the question to be considered in this revision petition is whether the additional compensation determined by the court below is just and proper. The 1[st] point is to be considered is whether the court below can be justified in fixing 2,712 Kgs. as gross yield, relying on DVS, discarding the quantity of 4,068 Kgs. shown in the mahazar. 6. Going by Ext.A7 mahazar, it is seen that the same is prepared by Special Tahsildar, Land Acquisition, the Power Grid Corporation. The mahazar is attested by two witnesses. Further it shows that the contents of the mahazar was verified by the Revenue Inspector and further it was again re-verified by the valuation assistants. In the mahazar, in the last column 4,068 Kgs. is shown as gross yield from the rubber trees which **C.R.P. Nos.544 & 554 of 2009 8** are 339 in numbers. In the next coloumn, the figure is enumerated by words as Four Thousand and Sixty Eight Kgs. only. The mahazar was prepared on 25/11/1997. But coming to the DVS, it is seen that the same was prepared on 26/03/1998. Needless to say, the DVS is prepared on the basis of the mahazar prepared on 25/11/1997. The DVS is also prepared by the special Tahsildar LA (g) Alappuzha. In view of the mahazar and DVS, I am of the opinion that when there is a dispute between the document prepared contemporaneously at the time of verification of the trees in the property and the statement prepared after four months on the basis of the mahazar, the mahazar which was prepared at the spot at the time of verification and counter checked by two other officers, is more reliable rather than DVS, the document subsequently prepared on the basis of earlier mahazar. It is also pertinent to note that though in the DVS it is stated that the Special Tahsildar, has verified the DVS **C.R.P. Nos.544 & 554 of 2009 9** with reference to the mahazar, he has lost the sight of the mistake crept in the statement and he has approved the same without application of mind. That apart, PW2 who is the competent witness to speak of the mistake was examined and he would swear that what is shown in the DVS is a mistake and the figure shown in the mahazar is correct quantity of gross yield. More importantly, the PW2 was not cross examined as regards his clarification in the witness box, by the respondent herein. Thus the evidence of PW2 stands as uncontroverted testimony. Moreover, the court below went wrong in finding that the burden is heavy on the petitioner to clarify the mistake. Admittedly, if there is any mistake, the said mistake was committed by officers of the respondent. Therefore, it was incumbent on them to prove that it is a mistake and the burden is not cast on the petitioner. But the court below went wrong by fixing the burden of proof on the petitioner. 7. In the above view, I find that the court below ## **C.R.P. Nos.544 & 554 of 2009** **10** has erred in taking 2,712 Kgs. as gross yields, instead of 4,068Kgs. shown in mahazar. That apart, in the earlier occasion, the court below granted compensation for taking 4,068.27Kgs. as gross yield and the respondent has not disputed the same. So also, the fixation of 4,068.27Kgs. as gross yield was not challenged by the respondent in CRP No.230 of 2007 before this Court. In CRP No.230 of 2007 the challenge was against the diminution of land value determined by the court below at 30% and also the percentage of annuity for the valuation of trees. I have perused the copy of the memorandum of revision petition in CRP No.230 of 2007 and the order dated 4[th] December, 2007 passed by this Court in the above CRP. This Court in the above CRP set aside the order under challenge and remitted the matter to the court below to determine the compensation for tree value and also the diminution of market value of the property in view of the decision in _**Kumba Amma v. K.S.E.B**_ **[2000 (1) KLT 542]** and **11** **C.R.P. Nos.544 & 554 of 2009** _**K.S.E.B v. Livisha**_ **[2007 (3) KLT 1 (SC)]** . Though the remand was an open one, in the absence of challenge against the gross yield, by the respondent, the court below suo motu re-fixed the gross yield relying on DVS and on an erroneous finding that the quantity of gross yield shown in mahazar as 4,068.27Kgs. is a mistake. In short, there was no circumstance to re-consider the quantity of gross yield, particularly, when the same was not challenged before this Court in the revision petition. Therefore, in the above view, I find that 4,068.27Kgs. is the correct gross yield and the mahazar is the reliable document for the same. Compensation for loss of yielding rubber trees can be recalculated, taking 4,068Kgs. as gross yield and 5% return. For determining net yield, 35% of the gross yield can be deducted as maintenance expense. The price of rubber taken by the court below will remain as such without any interference. The wood value also can be deducted. ## **C.R.P. Nos.544 & 554 of 2009** ## **12** 8. Coming to the diminution of land value the certain facts are not disputed. The total extent of the property is 3.16 acres and the property is lying in a rectangular shape. There are Panchayat roads on the northern and western side. 220 KV transmission lines had been drawn through the middle of the property in lengthwise manner. Virtually, the line divided the property into two strips, of which, one is triangle and another is in a irregular shape. In Ext.C1 commission report, the commissioner had categorically stated that affected area is 1 acre and 65 cents, which is lying beneath the transmission line in lengthwise. The respondent has not filed an objection disputing the description of the property and the determination of the affected area shown in the commission report. Therefore, I find that it is just and proper to rely on the commission report to assess the extent of affected area and unaffected area. 9. Going by the impugned order, it is seen that the ## **C.R.P. Nos.544 & 554 of 2009** **13** court below had fixed 20% as diminution of land value. In view of the principles laid down in _**Livisha’s**_ case, the court below ought to have considered the situs of the land, the distance between the high voltage electricity line laid there over, the extent of the line thereon as also the fact as to whether the high voltage line passes over a small track of land or through the middle of the land and other similar relevant factors, which would be determinative. The value of the land would also be a relevant factor. When applying the above principles in the instance case, I find that the fixation of 20% as diminution of land value is inadequate and the same will stand re-fixed as 30%. 10. In Kerala, being a small state with high density of population, the market value of the landed property is very high and the same depends upon mainly its suitability for the construction of residential buildings. Commonly, a vendee may not prefer such property, over which lives have been drawn for the construction of ## **C.R.P. Nos.544 & 554 of 2009** ## **14** residential building. Saleability is also a determinant factor, while fixing market value. In short, in the case of such properties, there would be considerable diminution of market value, affecting its saleability. This ground reality would justify diminution of land value at 30%, in the instance case. 11. Coming to the market value of the property, it is the case of the petitioner that Ext.A1 property and the petitioner’s property are similarly situated and comparable. I am of the opinion that in the absence of objection of the respondent against the commission report for determination of the market value also, Ext.C1 commission report can be relied on to a certain extent. The Commissioner has stated that Ext.A1 property lies adjacent to PWD road whereas the petitioner’s property lies adjacent to gravel road. Thus, the road accessibility cannot be compared as such. But at the same time the Commissioner has reported that the distance between Ext.A1 property and petitioners' **C.R.P. Nos.544 & 554 of 2009 15** property is only one Kilometer and tar road is passing through the western side of the petitioner's property. The commissioner has reported that the petitioner's property lies half kilometer away from an area where important public offices, Banks, Cashew nut factory, School etc. are situating. Therefore, it can not be said that the petitioner's property is situating in a remote area and it can be held that the property is situating very near to a potential area wherein important institutions are located. In Ext.A1 document the market value is shown as Rs.22,245/- and sale transaction in that document was between private party and a Cooperative society. Therefore, the consideration shown in Ext.A1 property is reliable as such. However, considering the fact that the distance between both properties is only 1 kilometer, I am of the opinion that Rs.5000/- fixed by the court below is inadequate and Rs.10,000/- can be taken as market value of the land. Thus the petitioner is entitled to get 30% of Rs.10,000/- **16** ## **C.R.P. Nos.544 & 554 of 2009** for an area of 1 acre and 50 cents, ie. Rs.4,50,000/- as diminution of land value. These revision petitions are allowed in part. ## Sd/- **K.HARILAL JUDGE** ## MJL/STU In the 11[th] line of paragraph 8, at page 12 of the common final order dated 3.4.2014 in C.R.P.Nos.544 & 554 of 2009, the affected area is corrected to “1 Acre 50 Cents”, as per order dated 13.8.2014 in I.A.No.1824/2014 in C.R.P.No.554/2009. Sd/Registrar (Judicial)