A.Y.P. Thomas v. Power Grid Corporation of India Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 1ST DAY OF AUGUST 2014/10TH SRAVANA, 1936** **CRP.No. 129 of 2009 ( ) ------------------------** **AGAINST THE ORDER IN OP(ELE) 103/2000 of DISTRICT COURT, ALAPPUZHA DATED 19-09-2008** ## **REVISION PETITIONER(S)/PETITIONER::** **---------------------------------------** **AYP THOMAS, AGED 55 YEARS, S/O.MATHEW THOMAS, MALIYIL PUTHENPARAMBIL HOUSE THALAVADY SOUTH MURI, THALAVADY VILLAGE KUTTANADU TALUK, ALAPPUZHA DISTRICT.** **BY ADV. SRI.J.OM PRAKASH** ## **RESPONDENT(S)/COUNTER PETITIONER::** **-----------------------------------** **POWER GRID CORPORATION OF INDIA LTD. REPRESENTED BY ITS MANAGER, LOCAL OFFICE AT NANGIARKULANGARA, HARIPPAD.** **BY ADV. SRI.MILLU DANDAPANI(B/O)** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **stu** **K. HARILAL, J. ------------------------------------------------------** C.R.P. No.129 of 2009 **-----------------------------------------------------Dated this the 1[st] day of August, 2014** ## **ORDER** The revision petitioner is the petitioner in O.P(E.A) No.103/2000 on the files of the District Court, Alappuzha. The above O.P. was filed by the petitioner under Sections 10 and 16 of the Indian Telegraph Act, 1985 read with Section 51 of the Indian Electricity Act, 1910, claiming additional compensation for the damages sustained, by the drawing of 220 KV double circuit transmission electric lines over his property. Earlier, the court below passed an order granting additional compensation to the petitioner. But the same was challenged in the earlier Civil Revision Petition preferred by the petitioner and this Court remanded the matter back for fresh consideration. Pursuantly, after remand, the court below reconsidered the materials available on record and granted an additional compensation of Rs.21,395.39/- only as compensation for the cutting and removal of trees; but no C.R.P. No.129 of 2009 2 amount had been given for the diminution of the land value claimed by the petitioner. Feeling aggrieved, this Revision Petition is filed. 2. The learned counsel for the revision petitioner advanced arguments challenging the findings of the court below, whereby the compensation for diminution of the land value has been rejected. It is contended that despite the production of Ext.A5, the court below rejected the compensation for diminution of the land value on an erroneous finding that there is no material to prove the similarity of the petitioner's property and Ext.A5 property. The learned counsel further drew my attention to the survey numbers of both the properties and submits that evidently the survey numbers show the proximity of both the properties which are situated in the same locality. In short, the court below has failed to consider the evidenciary value of Ext.A5 document produced by the petitioner. It is also contended that the amount granted as compensation for cutting and removal of trees are also inadequate and C.R.P. No.129 of 2009 **==> picture [7 x 9] intentionally omitted <==** disproportionate with the actual loss suffered by the petitioner. 3. In view of the above arguments, the short question that arises for consideration is whether the court below has failed to exercise jurisdiction vested in it or illegally exercised its jurisdiction with material irregularity. Going by the impugned judgment, it could be seen that the nature and extent of electric line drawn through the petitioner's property, the number and nature of trees cut and removed from the petitioner's property are not disputed. Various trees, including 4 yielding coconut trees, are seen cut and removed from the petitioner's property and it is also not disputed that a total consideration of `60,316/- was awarded by the counter petitioners for the cutting and removal of the above said trees. Ext.C1 report shows that the line was drawn through the southern boundary of the property of the petitioner. Going by the determination of compensation for the trees cut and removed, it is seen that the court below has evaluated the compensation on the basis of annuity, age C.R.P. No.129 of 2009 4 of the trees etc., shown in the mahazar prepared by the office of the respondents. The court below has examined the determination of compensation made by the respondent, in view of the proposition laid down by this Court in Kumba Amma v. K.S.E.B. (2000 (1) KLT 542) and found that when the annuity factor was so taken in view of the above decision, the total compensation for 4 yielding coconut trees and one arecanut tree would work out at `60,903.2 as against `39,507.81 awarded by the respondents. Thus, an enhanced additional compensation of `21,395/- was given. I do not find any reason to interfere with the additional compensation correctly determined by the court below, in the absence of any evidence contrary to the mahazar prepared by the respondents. 4. Coming to the diminution of the land value, injurious affection caused by drawing of electric transmission line is a reality accepted by the Supreme Court in **K.S.E.B. Vs. Livisha (2007 (3) KLT 1 (Supreme Court)).** In the above decision, the Apex Court held as follows: C.R.P. No.129 of 2009 5 “The situs of the land, the distance between the high voltage electricity line laid thereover, 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 in our opinion would be determinative. The value of the land would also be a relevant factor. The owner of the land furthermore, in a given situation may lose his substantive right to use the property for the purpose for which the same was meant to be used. So far as the compensation in relation to fruit bearing trees are concerned, the same would also depend upon the facts and circumstances of each case.” Going by the impugned order, it is seen that no amount has been awarded by the respondents for the diminution of the land value. Feeling aggrieved, though the petitioner preferred the above O.P., the District Court also rejected the claim of compensation for diminution of the land value. I am of the opinion that the rejection of the claim under the diminution of the land value cannot be accepted, in view of C.R.P. No.129 of 2009 6 the evidence available on record. The petitioner has produced Ext.A5 sale deed which shows that the property involved in Ext.A5 had been sold at the rate of `20,000/- per cent. Even though no other positive evidence was adduced to establish the similarity of both properties, going by the survey numbers of both properties, it could be seen that both properties are situating in the same village not far away from each other. The petitioner's property is situating in Sy.No.306/5A and 5B of Thalavady Village. Ext.A5 property is situating in Sy.No.322 of Thalavady village. On a comparison of these two survey numbers, it could be reasonably presumed that both properties are situating in the same locality. The sale of Ext.A5 property was in the year 2000 and electric transmission lines had been drawn over the petitioner's property in the year 1999. Thus, Ext.A5 property is sold away after one year. Even though, other particulars of both properties are not available, I am of the opinion that a reasonable amount can be fixed as market value of the petitioner's property on the basis of the C.R.P. No.129 of 2009 7 proximity of the property and the consideration shown in Ext.A5 property. It is true that market value of Ext.A5 property cannot be taken as such. I am of the opinion that 50% of the market value shown in Ext.A5 can be taken as market value of the petitioner's property. 5. Coming to the nature and extent of injurious affection, the court below went wrong by rejecting the claim on an erroneous finding that the line had been drawn through the southern boundary of petitioner's property. Had it been so, what prompted the respondent to cut and remove 21 trees from the petitioner's property. The cutting and removal of trees including 4 yielding coconut trees from the petitioner's property show that the line had been drawn through the petitioner's property in a way affecting the value and utility of the petitioner's property. The Commissioner has reported that the extent of injuriously affected area would come 5½ cents. The respondent has not produced any evidence to controvert the above finding of the Commissioner. 8 C.R.P. No.129 of 2009 6. Having regard to the above facts, I find that the diminution of land value also can be fixed at 50% of the market value of the petitioner's property, which would come ₹ 5,000/- per cent. On the basis of above finding, the petitioner is entitled to get ₹ 27,500/as additional compensation for diminution of land value. Thus, the petitioner is entitled to get a total additional compensation of 48,895/-. Needless to say, the petitioner is entitled to₹ get interest at 6% p.a from the date of cutting of trees till realisation of the amount. The revision petition is allowed. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge