Aliyar v. K.S.E.Board Thiruvananthapuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938** **CRP.NO. 22 OF 2012 () ---------------------AGAINST THE ORDER IN OPELE.45/1995 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM DATED 29-07-2011** **REVISION PETITIONER(S)/PETITIONER: ----------------------------------** **ALIYAR AGED 61 YEARS, S/O.KOCHU MUHAMMED, PADIKKAMATTATHIL OONNUKAL P.O., THALAKODE, KOTHAMANGALAM PIN-686691.** **BY ADVS.SRI.M.A.ABDUL HAKHIM SRI.M.G.ANON SRI.JOSEPH GEORGE (KANNAMPUZHA)** **RESPONDENT(S)/RESPONDENTS -------------------------** **1. K.S.E.BOARD THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY PIN-695004.** **2. DEPUTY TAHSILDAR (LA) KSEBOARD, RAVIPURAM, ERNAKULAM PIN-682036.** **3. ASSISTANT EXECUTIVE ENGINEER WORLD BRANCH PROJECT, KSE BOARD, PERUMBAVOOR PIN-683542.** **RR1 & 3 BY ADV. SRI.K.M.S. MENON, SC, KSEB** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21.10.2016, THE COURT ON 21-12-2016 PASSED THE FOLLOWING:** ## **SATHISH NINAN, J.** **=================================== C.R.P. No.22 of 2012 =================================== Dated this the 21[st] day of December, 2016** ## **O R D E R** The Civil Revision Petition is filed challenging the order dated 29.07.2011 in Electricity (O.P) No.45 of 1995 of the District Court, Ernakulam, by the petitioner in the O.P. The petition was filed under Sections 10 and 16 of the Indian Telegraph Act read with Section 51 of the Indian Electricity Act, claiming enhanced compensation regarding the damages awarded on account of the drawing of 220 KV electric line across the petitioner's property. 2. The learned District Judge found that on account of the drawing of electric line, 20 cents of property belonging to the petitioner has been affected. In the said 20 cents is situated a tiled building which is the residence of the petitioner. The Learned District Judge, on evidence, also found that 223 tress were cut and removed from the property of the petitioner for the **C.R.P. No.22 of 2012** **-: 2 :-** purpose of drawing the electric line in question. Out of the same, 76 number of trees were yielding rubber trees. The Officer awarded compensation of Rs.22,232/-. The District Court, Ernakulam, as per order dated 20.10.2003, directed payment of additional compensation of Rs.53,584/-. Challenging the said order, the petitioner filed C.R.P. No.493 of 2004 before this Court. As per order dated 17.03.2010 this Court set aside the order passed by the District Court and directed consideration of the matter afresh. Pursuant to the said order of remand, the matter was reconsidered by the court below and the present impugned order dated 29.07.2011 has been passed. 3. As per the impugned order it was held that the petitioner is entitled to enhanced compensation of Rs.86,100/- in addition to the compensation paid by the authorities. It was further held that the said amount **C.R.P. No.22 of 2012** ## **-: 3 :-** will carry interest at the rate of 9% per annum from 10.04.1991 onwards. 4. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 5. The first ground of challenge urged by the learned counsel for the petitioner is with reference to the fixation of annuity in respect of the yielding trees except rubber trees. According to him, the court below has failed to exercise its jurisdiction and has not considered the said issue at all after remand by this Court. Learned Standing Counsel for the respondents made a faint effort to support the impugned order under the said head. 6. A perusal of the impugned order shows that there is substance in the contention of the petitioner. The court below has merely referred to its earlier order dated 20.10.2003 wherein compensation for yielding trees **C.R.P. No.22 of 2012** ## **-: 4 :-** except rubber trees was fixed on annuity basis at 5% and observed that “...since the said finding was not reversed by the Honourable High Court, I can go by the same conclusion”. However, it is seen that the order dated 20.10.2003 passed by the court below was set aside in its entirety by this Court in C.R.P. No.493 of 2004 and a fresh consideration was directed. Hence the court below ought to have considered the said issue also afresh, after remand, and passed appropriate orders. The entire issue relating to compensation was left open. I cannot agree with the conclusion arrived at by the learned District Judge that the issue of annuity was not interfered with by this Court in C.R.P. No.493 of 2004. The said finding of the court below is set aside. 7. The next ground of challenge is as regards compensation for the rubber trees cut and removed. The learned District Judge fixed the net income at 40%, ## **C.R.P. No.22 of 2012** ## **-: 5 :-** after deducting 60% from the gross income towards maintenance expenses. The Learned counsel for the petitioner relied on the decision of this Court reported in **Petronet CCK Ltd., Kochi v. K.V. Varghese and Others** (2014 [4] KHC 344) to argue that as regards rubber trees, 60% is to be taken as the net yield instead of 40%. In the said judgment this Court held that it is trite law through precedents that in the case of rubber trees the net yield can be considered as 60% after deducting 40% of the gross yield towards agricultural and other expenses. However, learned Standing Counsel for the respondents contended that, as is evident from the records, out of the total 223 trees cut and removed, there were only 76 rubber trees. Therefore, it is not a rubber plantation in its strict sense. According to him, the principle laid down and referred to by the petitioner in **Petronet CCK Ltd., Kochi v. K.V. Varghese** **C.R.P. No.22 of 2012** **-: 6 :-** **and Others** (supra) cannot be accepted in the instant case because the expenses that will have to be incurred for maintenance would be more than that in the case of a plantation. As regards the expenses to be deducted for maintenance from the gross income, as has been pointed out by the learned Standing Counsel for the respondents, out of the 223 rubber trees cut and removed, there were only 76 rubber trees. So it is obvious that it is not a pure rubber plantation. Therefore, the expenses incurred for maintenance and upkeep of the trees would be comparatively higher than that of a rubber plantation. In the circumstances, I hold that net income from the rubber trees in the instant case can be fixed at 50% after deducting 50% for maintenance. The net income from the rubber trees is refixed as above. 8. As regards the income from the rubber trees, it ## **C.R.P. No.22 of 2012** ## **-: 7 :-** was fixed at 60 grams a day. There is no serious challenge regarding the same by either side. Of course, the said finding has been arrived at by the learned District Judge based on the evidence of P.W.4, the field officer of the Rubber Board and the evidence of P.Ws.1 and 5. There is no reason to differ from the finding entered by the learned District Judge with regard to the yield from the rubber trees as 60 grams per day. In the result, the Civil Revision Petition is allowed to the extent as indicated above. The impugned order is set aside in part in so far as it relates to fixing of annuity and net income from the rubber trees cut and removed as indicated supra. All other findings are confirmed. The matter is remitted to the District Court, Ernakulam for re-fixation of the compensation in terms of the findings arrived at in this order. Fresh orders shall be passed as directed above within two ## **C.R.P. No.22 of 2012** ## **-: 8 :-** months from the date of appearance of parties before the court below. Parties shall appear before the District Court, Ernakulam on 17.01.2017. **SATHISH NINAN, JUDGE.** vsv