Kerala State Electricity Board v. Devasia Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 19TH DAY OF SEPTEMBER 2014/28TH BHADRA, 1936** **CRP.No. 257 of 2012 () -----------------------** **AGAINST THE ORDER IN OP(EA) 38/2010 of ADDL.DISTRICT COURT,KOTTAYAM DATED 05-04-2011** **REVISION PETITIONER/COUNTER PETITIONER:** **---------------------------------------** **KERALA STATE ELECTRICITY BOARD REPRESENTED BY THE SECRETARY K.S.E.B. VYDYUTHI BHAVANAM, PATTOM THIRUVANANTHAPURAM-695004.** **BY ADV. SRI.K.M.SATHYANATHA MENON,SC,KSEB** **RESPONDENT(S)/PETITIONER:** **-------------------------** **DEVASIA THOMAS S/O.THOMAS ONAMTHURUTHU, KEZHUVANKULAM P.O. PULIYANNOOR VILLAGE, PALA, KOTTAYAM DISTRICT PIN 686573.** **R1 BY ADV. SRI.MANUEL KACHIRAMATTAM R1 BY ADV. SMT.MERRY GEORGE** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RKC** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No. 257 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of September, 2014 ## **O R D E R** In this revision petition, the challenge is against the order dated 05.04.2011 iin O.P.(E.A.) No. 38/2010 before the District Court, Kottayam whereby, the said court awarded an enhanced compensation of 60,750/- towards the trees cut₹ and removed and also a sum of 6,000/- towards the₹ diminution in land value. 2. There is no dispute regarding the fact that 27 trees were cut and removed from the property of the petitioner before the court below. The Board had awarded only a sum of 2,816/-. ₹ 3. The lower court found that there were only three yielding rubber trees and the assessment of the income from those trees set at 3kg is proper. Thereafter, the lower court taking the value of 1kg rubber as 50/-, then 3kgms of₹ rubber arrived at an income of 150/-. Curiously enough,₹ thereafter, 45 is taken as number of tapping days and the ## **C.R.P. No. 257 of 2012** **-2-** income from rubber trees can be arrived at 6,750/- per₹ month. Thereafter calculating that the off season period is only for three months, calculating the total income available from the rubber trees for 9 months, the amount was arrived at 60,750/- i.e. 6750x9. ₹ 4. As regards the diminution in land value, the lower court observed that there was no clear evidence regarding the actual extent of land affected but considering the nature of the line drawn and the number of trees cut etc., it came to the conclusion that 3 cents would have been affected. Assessing the market value of the property at 10,000/- per₹ cent and 20% as diminution in land value, 6,000/- was₹ awarded towards the diminution in land value. Therefore, the total enhanced compensation came to 66,750/-. The₹ said amount was directed to pay with 7.5% interest from the date of cutting till realization. The above order is assailed in this revision. ## **C.R.P. No. 257 of 2012** **-3-** 5. The learned counsel appearing for the revision petitioner pointed out that the value arrived at for the 3 yielding rubber trees, by no stretch of imagination, can be justified. Even assuming that the value per kilogram is taken as reasonable, though the Board contends that the value of rubber at the relevant time was only 35 and odd rupees, by no stretch of imagination, the frequency of tapping would have been taken as 45 days. According to the learned counsel, the number of days for tapping per month cannot exceed 17 at any rate and number of days taken as 45, cannot be justified. That itself is sufficient to show that the court below has erred in arriving at the enhanced compensation. The learned counsel also assailed the amount calculated towards diminution in land value pointing out that there was no evidence regarding the actual extent of land affected by the drawing of land. It is therefore contended that the order cannot stand. **C.R.P. No. 257 of 2012** **-4-** 6. The learned counsel appearing for the respondent on the other hand contended that the court below has only awarded enhanced compensation in respect of the rubber trees and there are 18 other valuable trees which were cut removed for which only paltry amount has been granted. No enhanced compensation has been granted for those trees though they are of valuable nature. The learned counsel therefore contended that there were no grounds to interfere with the order of the court below. 7. After having heard the learned counsel for the petitioner and the learned counsel for the respondent, it is difficult to accept the finding of the lower court regarding the assessment of income from the 3 rubber trees at ₹60,750/- as has been arrived at by the court below. On fails to understand how the number of tapping days could have been taken as 45 and arrive at 6,750/- as income per₹ month. That obviously cannot have any support of law. Even assuming that in a month there are 17 tapping days **-5-** ## **C.R.P. No. 257 of 2012** available, the amount cannot come to what has now been arrived at by the lower court. There is no justification for the court below for calculating the annual income for 3 rubber trees as 60,750/-.₹ 8. But one fact has to be noticed. Even the Board accepts that 3 rubber trees which they have found to be yielding are aged 4, 5 and 5 years. The rest of the rubber trees are all also of the same age. For reasons best known to the Board, they have not treated those rubber trees as yielding trees. The lower court has also not considered this aspect. Further, the 18 other trees cut and removed are very valuable trees for which only paltry amounts have been granted. The court below has not addressed itself to the question whether those amounts are sufficient. 9. As regards the diminution in land value also, it may require further evidence to find out the actual extent of land affected by drawing of line. ## **C.R.P. No. 257 of 2012** **-6-** 10. One should remember that the petitioner before the court below is to be just compensated for the trees cut and removed from his property. That has to be arrived while taking note of the location, site etc. of the land and various other facts as stipulated in the decisions reported in **Kerala State Electricity Board** v. **Livisha etc.** [2007 AIR SCW 4104] and **Kerala State Electricity Board** v. **B. Sreekumari** [2008 AIR SCW 2633]. 11. In the light of the above fact, this Court is unable to uphold the impugned order and needs to be interfered with. The said order is set aside and the matter is remanded to the lower court for fresh disposal in accordance with law and in the light of what has been stated above. 12. The parties shall appear before the lower court on **15.10.2014** . Both parties will be at liberty to adduce further evidence in the case. The Board will be allowed to file objections also within a time to be stipulated by the trial court. **-7-** ## **C.R.P. No. 257 of 2012** The court below shall make every endeavour to dispose of the matter as expeditiously as possible, at any rate, within a period of four months from the date of appearance of the parties. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge