Kerala State Electricity Board v. Vijayan S. and Geetha Vijayan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **THURSDAY, THE 27TH DAY OF MARCH 2014/6TH CHAITHRA, 1936** ## **CRP.No. 261 of 2011 ( )** **-----------------------AGAINST THE ORDER/JUDGMENT IN OPELE 7/2006 of I ADDL.DISTRICT COURT, ERNAKULAM DATED 30-09-2010** ## **REVISION PETITIONER(S)/RESPONDENTS:** **--------------------------------------------------------------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM PATTOM, THIRUVANANTHAPURAM.** ## **2. DEPUTY CHIEF ENGINEER,** - **KSE BOARD, TRANSMISSION CIRCLE, KALAMASSERY ERNAKULAM.** **BY ADVS.SRI. ASOK M.CHERIYAN, SC, KSEB SRI.PULIKOOL ABUBACKER, SC, KSEB** ## **RESPONDENT(S)/PETITIONERS:** **----------------------------------------------------** ## **1. VIJAYAN S., AGED 59,** - **28/1596, GEETHANJALI, NEAR ST.SEBASTIAN CHURCH K.P.VALLON ROAD, KADAVANTHRA, NOW RESIDING AT 28/1475 A, SOUPARNIKA, ALUMKAL ROAD NEAR, K.P.VALLON ROAD, KADAVANTHRA KOCHI-682 020.** **2. GEETHA VIJAYAN, AGED 49, 28/1596, GEETHANJALI, NEAR ST.SEBASTIAN CHURCH K.P.VALLON ROAD, KADAVANTHRA, NOW RESIDING AT 28/1475 A, SOUPARNIKA, ALUMKAL ROAD NEAR, K.P.VALLON ROAD, KADAVANTHRA KOCHI-682 020.** **BY ADV. SRI.C.S.AJITH PRAKASH SRI.T.D.SALIM SRI.PAUL C. THOMAS** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-032014, ALONG WITH CRP. 479/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VPV** ## **K.HARILAL, J.** = = = = = = = = = = = **C.R.P.Nos.261 & 479 of 2011** = = = = = = = = = = = = = = = Dated this the 27[th] day of March, 2014 **O R D E R** These revision petitions are filed challenging the judgment dated 30/09/2010 passed in O.P.(Electricity) No.7/2006 on the files of the I Additional District Court, Ernakulam. C.R.P No.479 of 2011 was filed by the petitioners in the above O.P and C.R.P No.261 of 2011 was filed by the respondents in the same O.P. The above O.P was filed under Sec.10 and 16(3) of the Indian Telegraph Act,1885 read with Sec. 51 of the Indian Electricity Act, 1910, claiming compensation for diminution of land value of their properties comprised in Sy.Nos.844/1 and 846/2 of Elamkulam Village, Kanayannur Taluk in Ernakulam District. The respondents had drawn 110 KV Brahmapuram-Panampilly Nagar transmission lines over the above said property and thereby caused diminution of land value. The respondents had given 72,250/- only as₹ C.R.P.Nos.261 & 479 of 2011 2 compensation for diminution of land value. So the above O.P was filed claiming adequate compensation. According to the petitioners, the petitioners’ property is situated at an important residential area in Panampilly Nagar within Cochin Corporation limits. The Advocate Commissioner has reported about the location, lie, nature, importance and potentiality of the property in the locality. The petitioners had produced Ext.A6 document which shows the market value prevailing at that time for the property which was situated 1 km. away from the petitioners’ property. The Commissioner had categorically reported that the property in Ext.A6 document is not situated in a residential area and there are no Public Offices or Institutions near the said property. That apart, the Commissioner had specifically reported that the petitioners’ property is located in an important residential area and surrounded by several Public Offices and Institutions. According to the Commissioner, it is a fast developing area. But, the court below, without considering the commission report and importance of the C.R.P.Nos.261 & 479 of 2011 3 locality, adopted the same diminution value as that of Ext.A6 deed, ie., 35,000/- per cent. The legality and₹ propriety of the above order is under challenge in these revision petitions. But, according to the petitioners in CRP No.261 of 2011, the diminution value fixed by the court below is excessive. So, the respondents have filed the above revision petition challenging the very same order. 2. The learned counsel for the revision petitioners in C.R.P No.479 of 2011 advanced arguments assailing the findings of the court below in the impugned judgment under challenge. According to the learned counsel, the lower court ought to have attributed greater value and potentiality to the petitioners’ property than that in Ext.A6 property which is situating 1 km. away from the petitioners’ property. The court below went wrong in totally discarding Ext.C1 commission report which categorically reported the importance of the locality wherein the petitioners’ property is situated. 3. Per contra, the learned counsel for the respondents C.R.P.Nos.261 & 479 of 2011 4 submits that the diminution value fixed by the court below is excessive and unfair. Hence, the respondents sought for reduction of the enhanced compensation given by the court below. In view of the rival submissions, the short question to be considered is whether there is any illegality or impropriety in the determination of the enhanced diminution value fixed by the court below. 4. Going by the impugned judgment, it could be seen that the court below had placed reliance on Ext.A6, the copy of the sale deed of 1999 in favour of Central Excise & Customs Gazetted Officers Co-operative Housing Society for purchase of an extent of 29.324 Ares of land. In Ext.A6, the land value per cent is 95,003/-. The above sale was effected in the year 1999 and the drawing of electric line was also during 1999-2000. Therefore, indisputably, Ext.A6 is a document executed contemporaneously. Then the remaining point to be considered is, whether there is any difference in the matter of potentiality and importance between the property in Ext.A6 sale deed and petitioners’ 5 C.R.P.Nos.261 & 479 of 2011 property. 5. The learned counsel for the revision petitioners cited **K.S.E.B v. Livisha** (2007 (3) KLT 1 (SC) ) and drew my attention to paragraph 10 of the said judgment. “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 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”. 6. Going by the above decision, it was incumbent on the trial court to consider the potentiality and importance of each cases in accordance with the evidence available on record. But, in the instance case, the court below has not considered the potentiality and importance of the locality which are categorically reported by the Commissioner in C.R.P.Nos.261 & 479 of 2011 6 Ext.C1 report. The total extent of the property is only 8.855 cents and admittedly the transmission line passing through the middle of the property. The Commission report shows that Ext.A6 property is situating at a distance 1 k.m. away from the petitioners’ property and it is a vacant low lying land located 3 kms. from Kadavanthra Junction and a portion of which remain submerged in water. But, the court below without applying its mind to distinguish the value difference of the low lying distant property from the petitioners’ property which is situating in a well developed residential area with two-storied buildings around and the same is only 2 kms. away from Kadavanthra Junction. But, instead of distinguishing the potentiality of the said property, the court below had adopted the market value of the property which is situated in a remote area. The respondents had not filed any objection to the Commissioner. Therefore, the Commission report stands unchallenged. Consequently, it can be held that the court below went wrong by discarding the Commission report. C.R.P.Nos.261 & 479 of 2011 **==> picture [7 x 10] intentionally omitted <==** Certainly, the market value of this property would be higher than the market value of Ext.A6 property. 7. Having regard to the potentiality of the property and the importance of the locality categorically reported in Ext.C1 commission report, I find that the diminution value can be fixed at 50% of the market value of the property in Ext.A6 sale deed. Consequently, the petitioners are entitled to get diminution value @ 47,500/- per cent. Put₹ it differently, the petitioners are entitled to get an additional compensation of 12,500/- per cent with interest₹ at 9% from the date of drawing the line. In view of the above findings, CRP No.479 of 2011 will stand allowed and CRP No.261 of 2001 will stand dismissed. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge