M.K. Kurian v. Kerala State Electricity Board

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN FRIDAY, THE 10TH DAY OF FEBRUARY 2012/21ST MAGHA 1933 CRP.No.229 of 2009 ( ) ----------------------- E.A.(O.P.)17/2002 of ADDL.DISTRICT COURT,KOTTAYAM REVISION PETITIONER(S): ---------------------- M.K.KURIAN,S/O.KURIAN MUTHUPUNNAKKAL HOUSE PLASSANAL P.O. BY ADVS.SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU RESPONDENT(S): RESPONDENT -------------------------------------- KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, KSEB VAIDHYUTHI BHAVAN, THIRUVANANTHAPURAM. SRI.PULIKOOL ABUBACKER, SC, KSEB THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-02-2012, ALONG WITH CRP. 302/2009 AND OTHERS, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN, J.** -------------------------------- ## C.R.P.Nos.229, 241, 242, 285, 296 & 302 of 2009 --------------------------------- Dated this the 10[th] day of February, 2012 ## **O R D E R** All the six Civil Revision Petitions arise out of the common judgment dated 3[rd] September, 2008 in E.A.(O.P.) Nos.17 of 2002, 32 of 2003 and 33 of 2003. Against the order in E.A.(O.P.) No.17 of 2002, the claimant filed C.R.P.No.229 of 2009 and the Kerala State Electricity Board filed C.R.P.No.285 of 2009. Against the order in E.A.(O.P.) No.32 of 2003, the Board filed C.R.P.No.296 of 2009 and the claimant filed C.R.P.No.242 of 2009. Against the order in E.A.(O.P.) No.33 of 2003, the Board filed C.R.P.No.302 of 2009 and the claimant filed C.R.P.No.241 of 2009. 2. The cases were originally decided by the District Court as per the common order dated 5.4.2005. Civil Revision Petitions were filed by the Board as well as the claimants challenging the order dated 5.4.2005. Those Civil Revision Petitions were disposed of by this Court as per the order C.R.P.Nos.229, 241, 242, 285, 296 & 302 of 2009 dated 28[th] November, 2007 and the cases were remanded to the court below to consider the matter afresh in the light of the decision of the Supreme Court in K.S.E.B. vs. Livisha (2007 (3) KLT (1) SC). 3. After remand, the court below disposed of the Original Petitions by the common order dated 3[rd] September, 2008, which is under challenge in the aforesaid six Civil Revision Petitions. 4. For drawing 110 KV DC Tap Line to Erattupetta, trees were cut and removed from the properties of the claimants. Land was also taken for the erection of towers. The claimants put forward a claim for enhanced compensation for the trees cut and removed, for the acquisition of land for erecting towers and as compensation for diminution of land value. The claimant in O.P.(E.A.) No.17 of 2002, claimed a sum of ` 10,73,500/- as enhanced compensation. The claims in E.A.(O.P.) Nos.32 and 33 of 2003 were respectively ` 9 lakhs and ` 11,35,000/-. Witnesses were examined and documents were also produced C.R.P.Nos.229, 241, 242, 285, 296 & 302 of 2009 in the cases. After remand, PW4 was further examined and Exhibits A8 to A10 were marked. CPW1 was examined and B6 to B8 were also marked. 5. In E.A.(O.P.) No.17 of 2002, the claimant is the owner of 124.6 Ares of land in which a storied building is situated. The line passes above the house. The Board granted a sum of ` 18,490/- as compensation for the trees cut. The court below granted enhancement of ` 8,591.28 on this count. 6. An extent of 81 sq. mtrs. of land was acquired for erecting a tower in the land in E.A.(O.P.)No.17 of 2002. The Board fixed the market value of the land at ` 3,162/- per Are and taking 60% of the same, the Board granted ` 1,537/- as compensation. However, the court enhanced the compensation on this count at ` 18,478/- taking ` 10,000/- as the value of land per cent (` 24,710/-) per Are. As regards the claim for diminution of land value, the court below granted a sum of ` 2,07,564/- for the affected area of 28 Ares of land. The land value was taken as ` 10,000/- per cent and compensation was C.R.P.Nos.229, 241, 242, 285, 296 & 302 of 2009 awarded fixing it at 30% of the land value. The court below also awarded a sum of ` 2,38,699/- as diminution of land value for the entire remaining area, taking 10% of the land value as criteria. Thus in O.P.No.17 of 2002, the court below granted enhanced compensation of ` 4,73,332/-. 7. In E.A.(O.P.) No.32 of 2003, the claimant owns an extent of 30 cents of land. The electricity line passes diagonally over the property and over the house of the claimant. In this case, no land was acquired for erecting any tower. For the trees cut, the Board awarded ` 25,198/- . The court below granted an enhancement of ` 20,957/- on this count. The court below found that an extent of 500 sq. mtrs. was affected by the drawal of the line. Fixing 15% of the land value as diminution, the court below granted a sum of ` 18,533/- as compensation for diminution of land value. The court below also granted a sum of ` 27,798/- as diminution of land value for the balance extent, taking 10% of the land value as diminution. Thus the court below granted a total sum of ` 67,288/- as enhanced compensation. C.R.P.Nos.229, 241, 242, 285, 296 & 302 of 2009 8. In E.A.( O.P.) No.33 of 2003, the claimant owns an extent of 2.72 Acres of land. The line passes over his house. For the trees cut and removed, the Board granted ` 36,016/- as compensation. The court below held that the compensation payable on this count would be ` 71,754/-, thereby granting an enhancement of ` 37,738/-. 9. For erecting the tower, an extent of 49 sq.mtrs. of land was used. The Board granted only ` 900/- as compensation on this count. But the court granted a sum of ` 12,108/- granting an enhanced compensation of ` 11,208/-. For arriving at this amount, the court below arrived at the land value at ` 10,000/- per cent ( ` 24,710/- per Are). For diminution of land value, the Board did not grant any compensation. The court below granted a sum of ` 92,663/for an extent of 2500 sq.m., taking 15% of the land value as diminution and fixing the land value at ` 10,000/-. The court below also granted a sum of ` 1,97,680/- for the entire balance area, taking 10% as the diminution of land value and fixing the land value at the same rate. Thus a total enhancement of C.R.P.Nos.229, 241, 242, 285, 296 & 302 of 2009 ## ` 3,39,289/- was granted by the court below. 10. Having heard the learned counsel appearing for the Board as well as the counsel for the claimants, I am of the view that the court below arrived at the correct conclusion while fixing the compensation payable for the trees cut. The court below took into account all the relevant facts and circumstances and the materials on record and held that the claimants are entitled to a slight enhancement of compensation on account of the trees cut. The challenge against this finding of the court below is without any substance. 11. The court below was also right in paying the enhanced compensation for the land taken for erecting the towers. However, the land value fixed by the court below at ` 10,000/- per cent of land is contended to be too low by the claimants. I shall deal with the question of land value herein below. 12. The court below granted compensation for diminution C.R.P.Nos.229, 241, 242, 285, 296 & 302 of 2009 of land value taking different percentage of land value for the area affected and also for the entire remaining extent belonging to the claimants. The court below granted 15% of the land value for the area affected in E.A.(O.P.) Nos.32 and 33 of 2003 and 30% of the land value in E.A.(O.P.) No.17 of 2002. The court below also uniformly granted 10% of the land value as compensation for diminution of land value for the entire balance extent for the respective extents of land in the possession of the claimants. It is not very clear whether the compensation granted at 15% in two cases and at 30% in the other case is in respect of the actual area occupied by the electricity lines or whether it is inclusive of the clearance area to be kept on either side of the line while drawing the line. I am of the view that the court below was not justified in granting 10% of the land value as diminution of land value for the entire extent of land held by the claimants. If such a view is taken, persons having larger extents of land would be benefited while persons holding lesser extents of land would not be so benefited. In respect of a large extent of land, even if the line passes through one side of the property, it may not have any effect on C.R.P.Nos.229, 241, 242, 285, 296 & 302 of 2009 the rest of the property. Probably, the entire extent of land would be affected in some of the cases and a considerable portion of land would be affected in some other cases. Therefore, there was no justification for the court below to award compensation on account of diminution of land value for the entire extent of land held by the claimant. 13. The claimants have challenged the land value fixed at a low rate of ` 10,000/-. I am also of the view that the land value fixed by the court below is too low. 14. For the aforesaid reasons, I am of the view that the cases should be remanded to the court below for fresh disposal. However, the following directions are required to be issued in the matter : - (i) No interference is made in the order impugned in so far as it relates to the compensation for tree cutting granted by the court below. C.R.P.Nos.229, 241, 242, 285, 296 & 302 of 2009 - (ii) No modification is made in respect of the extent arrived at by the court below for erection of towers. - (iii) The question of land value shall be considered by the court below afresh, after affording an opportunity of being heard to both parties. It is also appropriate to grant an opportunity to both parties to adduce such other relevant evidence. - (iv) In the facts and circumstances of the case, it is just and proper to fix the diminution of land value at a minimum rate of 30% of the land value for the affected area alone. The court below shall fix the affected area taking into account the actual extent of land used for the drawal of the lines and also the required land for keeping statutory clearance. - (v) If in any particular case, the diminution of land value appears to be more, there is nothing wrong in fixing a higher rate for fixing the compensation for C.R.P.Nos.229, 241, 242, 285, 296 & 302 of 2009 diminution of land value in that particular case. 15. Since the cases are old ones, there will be a direction to the court below to dispose of the cases expeditiously. The parties shall appear before the court below on 20[th] March, 2012. **K.T.SANKARAN** **JUDGE** csl