Kurian Abraham v. Power Grid Corporation of India Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN WEDNESDAY, THE 21ST DAY OF MARCH 2012/1ST CHAITHRA 1934 CRP.No.138 of 2009 ( ) ----------------------OP(EA)7/2001 OF DISTRICT COURT, ALAPPUZHA REVISION PETITIONER(S)/PETITIONER: ----------------------------------------------------- KURIAN ABRAHAM, 50 YEARS, S/O.LATE KURIAN, VATTAEKATTU PARAMBIL HOUSE THALAVADY VILLAGE, KUTTANADU TALUK, REPRESENTED BY THE POWER OF ATTORNEY HOLDER ALICE KURIAN AGED 41, W/O.KURIAN ABRAHAM, VATTAEKATTU PARAMBIL HOUSE, THALAVADY VILLAGE, KUTTANADU TALUK. 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, SC THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-03-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN, J.** -------------------------------- ## C.R.P.No.138 of 2009 --------------------------------Dated this the 21[st] day of March, 2012 ## _**O R D E R**_ For drawing a 220 KV electric line, yielding coconut trees and other trees were cut and removed from the property belonging to the petitioner, which has a total extent of 57 cents. The Power Grid Corporation of India Ltd. granted a compensation of ` 26,873/-. Dissatisfied with the amount awarded, the petitioner filed O.P.(E.A.) No.7 of 2001 before the court of the District Judge of Alappuzha. The court below granted enhanced compensation of ` 1,18,000/- as per the order dated 29.10.2003. That order was challenged by the Corporation in C.R.P.No.527 of 2004. This Court set aside the order passed by the learned District Judge and remanded the case for fresh disposal. Thereafter, the court below disposed of the case as per the order dated 20.12.2006. That was again challenged in C.R.P.No.725 of 2007 by the Corporation. Relying on the decision of the Supreme Court in **K.S.E.B. vs. Livisha (2007(3) KLT 1 (SC))** , this Court set aside the order CRP 138/2009 2 passed by the court below and the case was remanded for fresh disposal after giving an opportunity to either side to produce documents and to adduce evidence. 2. After remand, as per the order impugned, the court below granted enhanced compensation of ` 15,860/- for the trees cut. There is no challenge to the enhanced compensation for the trees cut, either by the petitioner or by the Corporation. 3. The court below also granted a compensation of ` 29,062.50 as compensation for diminution of land value. The petitioner challenges the same on the ground that the amount granted is quite inadequate. The claim originally made by the petitioner as compensation for diminution of land value was ` 7,64,127/- 4. The petitioner produced Exhibit A6 and examined PW3, the attesting witness to Exhibit A6. The Commissioner had originally filed Exhibit C1 report. After production of Exhibit A6 document, the Commissioner was deputed to assess the CRP 138/2009 3 comparability of the lands covered by Exhibit A6 with the land in question belonging to the petitioner. After inspection, the Commissioner filed Exhibit C2 report. 5. The learned counsel for the petitioner submitted that the compensation awarded for diminution of land value is quite low. He submitted that the court below erroneously took the extent of land affected by the drawal of the line as 23.25 cents while the affected area really is an extent of 44.81 cents. It is also submitted that the land value fixed by the court below at ` 5,000/- per cent of land is against the evidence available in the case. 6. In Exhibit C1 report, the Commissioner stated that the lines were drawn through the middle of the property belonging to the petitioner. The extent of land occupied by the actual drawal of the line is an extent of 23.25 cents. The Commissioner also reported that the clearance area is having an extent of 21.562 cents. The Commissioner stated that a total extent of 44.812 cents has become practically useless. In Exhibit C1, the CRP 138/2009 4 Commissioner reported that the property is situated only 1 km. away from Chakkulathukavu, a very important temple in the State. Church, Bank, School and other institutions are situated near the property. 7. In Exhibit C2 report, the Commissioner stated that the property in question is situated on the side of a road. The plot is a rectangular plot. The property could be used for residential as well as commercial purposes. The property is lying on the level of the road. On comparison of Exhibit A6 property with the property in question, the Commissioner stated that the petitioner's property is having more potentialities and more value than Exhibit A6 property. 8. In Exhibit C1 Commissioner's report, the Commissioner assessed the land value at ` 20,000/- per cent. Exhibit C1 report was submitted on 29.1.2003. In Exhibit C2 report, the Commissioner stated that the value of the land would range from ` 50,000/- to ` 75,000/- per cent. Exhibit C2 report was submitted after making the inspection on 8.11.2006. In Exhibit C2, the CRP 138/2009 5 Commissioner also stated that the value of the lands near Exhibit A6 property would be ` 35,000/- per cent. 9. The trees were cut from the property of the petitioner on 12.2.1999. The petitioner relied on Exhibit A5 assignment deed under which an extent of 12.5 cents of land with a building was sold for ` 5 lakhs. The building was valued at ` 2.5 lakhs. The centage value of the land was ` 20,000/-. Exhibit A6 was executed on 28.9.2000 for an extent of 1.55 Ares of land for a total consideration of ` 40,000/-. 10. The court below fixed the affected area at 23.25 cents, without properly adverting to the materials on record. It is clear from the Commissioner's report that the total extent of the affected area would be 44.81 cents. No reasons are stated by the court below as to why the Commissioner's report was not accepted. The discussion in the judgment also would not indicate that the Corporation contended that the affected area would not be 44.81 cents. On the basis of the materials on record, it is only just and proper to take the total extent of the affected area CRP 138/2009 6 at 44.81 cents. The court below took the diminution of land value at 25% of the land value. The total extent of the land being 57 cents and the affected area being 44.81 cents, fixation of 25% of the land value as the diminution factor is not on higher side at all. However, I do not think it necessary to enhance the diminution factor above 25%. 11. The court below did not advert to the valuation of the properties in 2000 and in 2006 when the Commissioner inspected the property on two occasions. As stated earlier, Exhibits A5 and A6 were executed, only a few months after the date of tree cutting. There is no case for the respondents that Exhibits A5 and A6 were executed only to make a false claim for the petitioner. The learned counsel for the petitioner submitted that it is notorious that the real value of the property would not be shown in the title deeds, evidently for the purpose of avoiding payment of stamp duty. The court below fixed the land value at a low rate of ` 5,000/- per cent of land. I am of the view that on the basis of the materials on record, it is only just and proper to fix the land value at ` 10,000/- per cent of land. Taking the land value at CRP 138/2009 7 ` 10,000/- and the affected area at 44.81 cents and taking the diminution factor at 25%, the petitioner would be entitled to get a sum of ` 1,12,025/- as compensation for diminution of land value ( ` 10,000x44.81x25/100= ` 1,12,025). For the aforesaid reasons, the Civil Revision Petition is allowed and the compensation for diminution of land value is fixed at ` 1,12,025/- instead of ` 29,062.50 fixed by the court below. The petitioner would be entitled to interest at 6% per annum from the date of cutting of trees, as held by the court below. In all other respects, the order passed by the court below is confirmed. **K.T.SANKARAN** **JUDGE** csl