KERALA STATE ELECTRICITY BOARD v. K.P. GEEVARGHESE and K.P. KURIYAKOSE

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN MONDAY, THE 8TH DAY OF OCTOBER 2012/16TH ASWINA 1934 ## **CRP.No. 390 of 2005 (D)** ELE.OP.NO.4/2000 OF ADDL.DISTRICT COURT, N. PARAVUR ## REVISION PETITIONER/RESPONDENT: --------------------------------- THE KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDYUTHI BHAVAN THIRUVANANTHAPURAM. BY ADVS. SRI.K.M.SATHYANATHA MENON,SC,KSEB ## RESPONDENTS/PETITIONERS: -------------------------- 1. K.P.GEEVARGHESE, S/O.PAULOSE, KUZHIKKATTIL VEETTIL, ASAMANNUR VILLAGE KUNNATHUNADU TALUK, ERNAKULAM. 2. K.P.KURIAKOSE, S/O.PAULOSE, KUZHIKKATTIL VEETTIL, ASAMANNOOR VILLAGE KUNNATHUNADU TALUK, ERNAKULAM. BY ADV. SRI.V.J.JOSEPH BY ADV. SMT.M.V.LIGI THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **I.A.NO.1091/2005 IN C.R.P.NO.390/2005** ## DISMISSED 08/10/2012 SD/- **K.T.SANKARAN, JUDGE** //TRUE COPY// AHZ/ ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------C.R.P. NO. 390 OF 2005 D -----------------------------------------------------Dated this the 8[th] day of October, 2012** ## **O R D E R** For drawing 220 KV electric line, 279 rubber trees were cut and removed from the property belonging to the respondents, having a total extent of 2 Hectors and 29 Ares. The mahazar was prepared by the Electricity Board on 23.11.1992. There is dispute regarding the date of cutting of trees. According to the Electricity Board the trees were cut in 1995, while according to the respondents, the trees were cut in April 1996. Some other trees were also cut and removed for drawing the line. The Electricity Board fixed the compensation payable to the respondents at a total sum of `1,240/-. Dissatisfied with the compensation awarded, the respondents filed E.O.P.No.4 of 2000 on the file of the Court of the Additional District Judge, North Paravur. The court below held that the respondents are entitled to get additional compensation of `6,67,002/-. The Kerala State Electricity Board challenges the order in Revision. ## 2. Before the court below, the respondents contended that the ## **C.R.P. NO. 390 OF 2005 D** :: 2 :: rubber trees were high yielding and that an extent of 1.50 acres of land had practically become useless due to the drawal of the line. The respondents claimed a sum of `87,04,800/- as compensation for 279 rubber trees. They also claimed a sum of `1,50,000/- as compensation for the value of three cashew nut trees. Another sum of Rupees Seven lakhs was claimed as compensation for diminution of land value for the remaining extent of 3.50 acres of land. A sum of `7,50,000/- was also claimed for loss of utility of 1.50 acres of land. Thus, the respondents claimed a total compensation of `1,03,04,800/-. The contention of the respondents was that at the time of tree cutting the land would have fetched `5,000/- per cent. 3. The Electricity Board denied the claim made by the respondents. The Board contended that the compensation awarded was just and reasonable. 4. Before the court below, PWs.1 to 5 were examined on the side of the respondents/claimants. No witness was examined on the side of the Board. Exts.A1 to A3, B1, B2 and C1 series were marked in the case. ## **C.R.P. NO. 390 OF 2005 D** :: 3 :: 5. The court below held that the land value at the relevant time was `5,000/- per cent. It was also held that during the relevant period, the average value of rubber latex per kilogram was `50/-. The court below called for the records in E.O.P.No.44 of 1998 also for the purpose of fixing the value of rubber latex per kilogram and for considering the question of yield of rubber trees of the particular variety at the relevant time. Though it was found that the value of rubber per kilogram in Kottayam District during the period from December 1994 to December 1995 would be `45/- to `65/-, the court below fixed the moderate price at `50/- per kilogram. Applying 5% annuity factor at 13.799, the court below fixed the compensation for rubber trees at `4,42,742/-. It was held that, after deducting the expenses, a sum of `115/- would be the income from a rubber tree per year. 6. The Board raised a contention that the rubber trees were not yielding at the relevant time. After considering the evidence on record, the court below arrived at the conclusion that the rubber trees were yielding at the time of cutting. The Board raised a contention ## **C.R.P. NO. 390 OF 2005 D** :: 4 :: that the date of preparation of the mahazar (23.11.1992) was the relevant date and the claimants having stated that the rubber trees were planted in 1999, it could not be held that the trees were yielding on the date of preparation of the mahazar. The claimants contended that the relevant date is the date of cutting of trees and not the date of preparation of mahazar. The court below accepted the contentions put forward by the claimants in this regard. Compensation is paid for tree cutting. Therefore, the relevant date is the date of cutting of trees. That a mahazar was prepared several years before cutting of trees is not a ground to hold that the trees were not yielding at the relevant time. The claimants, who would otherwise be entitled to compensation, cannot be denied compensation on the ground that at the time of preparation of mahazar, the trees were not yielding. Preparation of mahazar is on the volition of the officers of the Board. It is only a unilateral act. So far as the claimants are concerned, the relevant aspect is the cutting of trees. On what date the trees were cut is the most important thing for fixing the compensation. 7. The court below held that an extent of 1.47 acres of land ## **C.R.P. NO. 390 OF 2005 D** :: 5 :: was injuriously affected by the drawal of the line. The extent of land coming within the clearance area of the electric line would be 1.47 acres of land. Therefore, the court below was right in holding that the area affected would be 1.47 acres. The value of land fixed by the court below at `5,000/- per cent cannot be held to be on the higher side. Fixing the percentage of diminution at 30, the court below awarded a compensation of `2,20,500/- for the loss of utility of land and diminution of land value for an extent of 1.47 acres. It cannot be held that the compensation awarded on this count is on the higher side. 8. The court below fixed the annuity factor at 5%, evidently relying on the decision of the Full Bench in **Kumba Amma** v. **K.S.E.B.** (2000(1) KLT 542). After referring to the decision of the Full Bench in **Kumba Amma** v. **K.S.E.B.** (2000(1) KLT 542), the Supreme Court in **K.S.E.B.** v. **Livisha** (2007 (3) KLT 1 (SC)), held as under: “10. 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 ## **C.R.P. NO. 390 OF 2005 D** :: 6 :: 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. 11. 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. 12. We may, incidentally, refer to a recent decision of this Court in _Land Acquisition Officer, A.P. v. Kamandana Ramakrishna Rao & Anr._ reported in 2007 AIR SCW 1145 wherein claim on yield basis has been held to be relevant for determining the amount of compensation payable under the Land Acquisition Act, same principle has been reiterated in _Kapur Singh Mistry v. Financial Commission & Revenue Secretary to Govt. of Punjab & Ors._ 1995 Supp. (2) SCC 635, _State of Haryana v. Gurcharan Singh & Anr._ (1995 Supp.(2) SCC 637) para 4, and _Airports Authority of India v. Satyagopal Roy & Ors._ (2002) 3 SCC 527. In Airport Authority (supra), it was held:- “14. Hence, in our view, there was no reason for the High Court not to follow the decision ## **C.R.P. NO. 390 OF 2005 D** :: 7 :: rendered by this Court in Gurucharan Singh's case and determine the compensation payable to the respondents on the basis of the yield from the trees by applying 8 years' multiplier. In this view of the matter, in our view, the High Court committed error apparent in awarding compensation adopting the multiplier of 18.”” 9. In view of the decision of the Supreme Court in **Livisha's case** , the matter requires reconsideration in respect of the compensation fixed by the court below for 279 rubber trees which were cut and removed. For that purpose, it is necessary to remand the case to the court below for fresh disposal. Accordingly, the Civil Revision Petition is allowed in part, as indicated below: - a) The order passed by the court below is set aside to the extent indicated above and the case is remanded to the court below for fresh disposal for the purpose of fixing compensation for 279 rubber trees which were cut and removed. - b) The value of land fixed by the court below at `5,000/- per cent is confirmed. ## **C.R.P. NO. 390 OF 2005 D** :: 8 :: - c) The compensation fixed by the court below at `2,20,500/- for diminution of land value is also confirmed. - d) The finding of the court below that rubber trees were yielding on the date of cutting is also confirmed. - e) The value fixed by the court below for rubber latex at `50/- per kg. is also confirmed. - f) The parties shall appear before the court below on 26.11.2012. - g) Both parties will be entitled to adduce such other evidence as is relevant in respect of the matter remanded to the court below. ## **(K.T.SANKARAN) Judge** ahz/