KERALA STATE ELECTRICITY BOARD v MATHAI THOMAS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN TUESDAY, THE 3RD DAY OF JANUARY 2012/13TH POUSHA 1933 CRP.No. 313 of 2008 ( ) ======================= OP(ELE.)54/2001 of ADL.D.C.,THODUPUZHA REVISION PETITIONER/RESPONDENT IN O.P. ========================================= THE KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY VYDYUTHI BHAVANAM THIRUVANANTHAPURAM. BY ADV.SRI.K.S.ANIL, SC, KSEB SRI.K.M.SATHYANATHA MENON,SC,KSEB RESPONDENT/PETITIONER IN O.P. ================================ MATHAI THOMAS, S/O.MATHAI, KANJIRATHUMKAL HOUSE KARIMALA KARA, KONNATHADY VILLAGE IDUKKI DISTRICT. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.T.SANKARAN, J. ---------------------------------C.R.P.No.313 of 2008 ----------------------------------Dated this the 03[rd] day of January, 2012** ## **ORDER** The revision is filed by the Kerala State Electricity Board, challenging the preliminary award dated 21[st] October, 2003 and the final award dated 27[th] November, 2003 in O.P.No.54 of 2001 on the file of the court of the Additional District Judge, Thodupuzha. 2. The respondent herein filed the original petition before the court below claiming enhancement of compensation awarded by the Kerala State Electricity Board. For the purpose of drawing Koothunkal-Panamkutty 110 KV line, the Kerala State Electricity Board cut and removed trees from the property belonging to the respondent. Compensation was assessed by the Board and it was paid. The respondent was dissatisfied with the amount of compensation. He contended that the yield assessed by the Board and the price fixed by the Board for the agricultural produces was not reasonable. Various other contentions were also raised by the respondent. C.R.P.No.313/2008 : 2 : An additional compensation of Rupees Four lakhs was claimed by the respondent. He also claimed 35 % solatium and interest at 18% on the enhanced compensation. The court below raised the following points for consideration:- - “1. Whether the yield assessed by the respondent is low? 2. Whether the price fixed by the respondent for the agricultural produces is reasonable? 3. Whether the deductions made by the respondent are high? 4. Whether the age of the trees has been correctly shown by the respondent? 5. Whether the future age of the trees shown by the respondent is correct? 6. Whether some yielding trees have been shown as non-yielding in the DVS? 7. Whether the multiplier adopted by the respondent is reasonable? 8. Whether the drawing of the line has diminished the value of the petitioner's land? 9. What is the amount to which the petitioner is entitled as additional compensation? 10. Is the petitioner entitled to solatium? 11. What is the rate of interest payable on the additional compensation? C.R.P.No.313/2008 : 3 : 12. What is the rate of interest (if any) payable on the compensation already paid?” 3. Points 1, 4, 5, 6 and 8 were found against the claimant as he did not adduce any evidence. 4. While dealing with point No.2, the court below held that the claimant would be entitled to compensation based on the value of coconut at Rupees 5 per nut, value of arecanut at Rupees 50 per Kg. and value of cashew nut @ Rs.30 per Kg., as against the amount fixed by the Board at Rupees 4.47 per coconut, Rupees 40 per Kg. for arecanut and Rupees 25 per Kg. for cashew nut. As regards the claim for enhancement on the value of cardamom and pepper, the court below rejected the claim made by the claimant. As regards the value of cocoa, the court below fixed the value of cocoa at Rupees 30 per Kg. as against the amount fixed at Rupees 17.09 by the Board. 5. While dealing with point No.3, the court below held that the deductions made by the Board as expenditure for coffee, rubber and cardamom was on the higher side and appropriate modifications were made. C.R.P.No.313/2008 : 4 : 6. While dealing with point No.7, the court below held thus:- “12. The rate of return has been taken by the respondent as 10% for determining the compensation. The Hon'ble High Court has fixed it at 5% in Kunbha Vs. KSEB (2000(1) KLT 542). So in fixing the multiplier the rate of return will be taken as 5%. The point is found in favour of the petitioner.” 7. The court below also awarded interest at 9% per annum on the enhanced compensation. On the basis of the preliminary award dated 21/10/2003, a statement was filed by the claimant and after hearing both sides, the court below passed a final award dated 27[th] November, 2003 granting an enhanced compensation at Rupees 1,34,008/-. 8. The court below arrived at the finding on point Nos.2 and 3, on the basis of the evidence on record and also on the basis of the consistent view taken by the court in similar cases. To a query as to whether the consistent view taken by the court below on these aspects was interfered with by the High Court in any revision, the learned counsel for the petitioner could not point out any such instance. In the facts C.R.P.No.313/2008 : 5 : and circumstances, I am not inclined to interfere with the findings made by the court below on points 2 and 3. 9. However, the finding of the court below on point No.7 was based on the decision of the larger bench of the High Court in **Kumba Amma Vs. Kerala State Electricity Board 2000(1) KLT 542** . After referring to decision in Kumba Amma and noticing the various other decisions of the Kerala High Court, the Supreme Court in **Kerala State Electricity Board Vs. Livisha and others 2007 (6) SCC 792** , held as follows:- **“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 tract 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 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 C.R.P.No.313/2008 : 6 : would also depend upon the facts and circumstances of each case. We may, incidentally, refer to a recent decision of this Court in Land Acquisition Officer v. Kamadana Ramakrishna Rao 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 Mistri v. Financial Commr. & Revenue Secy. to Govt. of Punjab, State of Haryana v. Gurcharan Singh, para 4 and Airports Authority of India v. Satyagopal Roy. In Airports Authority it was held: (SCC p.533, para 14) “14. Hence, in our view, there was no reason for the High Court not to follow the decision rendered by this Court in Gurcharan Singh 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.” 10. In the light of the decisions of the Supreme Court, I am of the view that the award passed by the court below to the extent it relates to point No.7 requires interference. C.R.P.No.313/2008 : 7 : Accordingly, the revision is partly allowed. The award passed by the court below based on the finding on point No.7 is set aside. The court below shall consider the case afresh on the basis of the materials on record. It is made clear that the findings on points 2 and 3 are not interfered with. So also, the points which were decided against the claimant would also stand, as he has not challenged the same. The parties shall appear before the court below on 08[th] February, 2012. ## **K.T.SANKARAN, JUDGE** skj