M.V.THOMAS @ UNNI, M.V.JOSEPH @ VIJAYAN and M.V.GEORGE @ KUNJUKUNJU v. KERALA STATE ELECTRICITY BOARD and others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN WEDNESDAY, THE 25TH DAY OF JANUARY 2012/5TH MAGHA 1933 CRP.No. 912 of 2006 ( ) ----------------------- OP(ELE.)24/2001 of ADDL.DISTRICT COURT (ADHOC)-II, ERNAKULAM ## REVISION PETITIONERS/PETITIONERS: --------------------------------- 1. M.V.THOMAS @ UNNI, - S/O.LATE M.L.GEORGE, MANAYATHARA HOUSE, KADAVANTHRA ELAMKULAM VILLAGE, KANAYANNUR TALUK. 2. M.V.JOSEPH @ VIJAYAN, S/O.LATE M.L.GEORGE, MANAYATHARA HOUSE, KADAVANTHRA ELAMKULAM VILLAGE, KANAYANNUR TALUK NOW RESIDING AT E/69, AKOTA, BARODA GUJARAT - REP. BY HIS BROTHER AND POWER OF ATTORNEY HOLDER M.V.GEORGE. 3. M.V.GEORGE @ KUNJUKUNJU, S/O.LATE M.L.GEORGE, MANAYATHRA HOUSE, KADAVANTHRA ELAMKULAM VILLAGE, KANAYANNUR TALUK. ## BY ADV. SRI.MANUEL THOMAS RESPONDENTS: - -------------- 1. KERALA STATE ELECTRICITY BOARD, - THIRUVANANTHAPURAM, REP. BY ITS SECRETARY. 2. DEPUTY TAHSILDAR (LA) FOR KSEB, - POWER HOUSE, ERNAKULAM, PIN-682 018. ## C.R.P.No.912/2006 ## 3. ASSISTANT EXECUTIVE ENGINEER, TRANSMISSION SUB DIVISION, BRAHMAPURAM, ERNAKULAM. R1 TO 3 BY SRI.C.K.KARUNAKARAN, SC FOR KSEB BY SRI.P.SANTHALINGAM (SR.) BY SRI.S.SHARAN,SC,K.S.E.BOARD THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN, J. ------------------------------------C.R.P.No.912 of 2006 -------------------------------------Dated this the 25[th] day of January, 2012** ## **ORDER** For drawing Brahamapuram-Panampilly Nagar 110 K.V. Electricity line, 56 trees including 33 yielding coconut trees were cut and removed from the property belonging to the petitioners, which has a total extent of 69 cents. The Board awarded a sum of Rs.1,40,069/- as compensation to the petitioners. The Board awarded the amount only on account of cutting of trees. No amount was awarded as compensation on account of diminution of land value. 2. The petitioners were not satisfied with the amount awarded. They filed O.P.(Elec.)No.24 of 2001 on the file of the court of the Additional District Judge (Ad hoc -II), Ernakulam claiming a compensation of Rs.8,26,500/- as enhanced compensation. 3. Before the court below, the third claimant was examined as PW.1 and the Commissioner was examined as PW.2. Exts.A1 to A6, R1 and R1(a) and C1 to C1(b) were marked. A Commissioner was appointed to inspect the C.R.P.No.912/2006 : 2 : property, who submitted Ext.C1 report, Ext.C1(a) location sketch and Ext.C1(b) rough sketch of the property in question. 4. The court below awarded a sum of Rs.1,55,409/- as additional enhanced compensation on account of the yielding coconut trees cut and removed from the property. The court below also awarded a sum of Rs.2,40,000/- as compensation for diminution of land value. 5. The petitioners challenge in this revision the order of the court below only in so far as it relates to the compensation awarded for diminution of land value. No revision was filed by the Kerala State Electricity Board. Therefore, the only question to be considered is whether the enhanced compensation awarded by the court below on account of diminution of land value is adequate. The property is situated near Kadavanthara Junction in Cochin Corporation. The Commissioner reported that the property lies in a locality within the city limits which has commercial as well as residential importance. The Commissioner saw a large number of flats near the property. Several other institutions such as, schools, churches, parish hall, bank, etc, are situated very near to the property. The Commissioner suggested, on C.R.P.No.912/2006 : 3 : making enquiries, that the value of the land at the time of cutting of trees in 1995 would be Rs.1,25,000/- per cent of land. The Commissioner also stated with reference to measurement that an extent of 3.5 cents of land is actually used for erecting the tower. In view of the location of the tower, the land immediately surrounding the same has become of lesser use. The Commissioner stated that the extent of the same is 5.85 cents. The Commissioner also found that approximately an extent of 14 cents of land lie underneath the over head line. It was observed by the Commissioner that a total extent of 20 cents would be adversely affected due to the erection of the tower and the presence of the over head electrical line. 6. The learned counsel for the petitioners submitted that the court below was not justified in fixing the land value at a meagre amount of Rs.40,000/- per cent. The land is situated in a very important locality. It is also submitted that the court below committed an error in taking Ext.A6 judgment as the basis for determining the land value. In the cases covered by Ext.A6 judgment, the cutting of trees was in 1993 whereas in the present case the trees were cut on 20/4/1995 C.R.P.No.912/2006 : 4 : and 21/4/1995. It is submitted that the petitioners produced Ext.A6 judgment only to show that even in 1993 the land value was fixed at Rs.40,000/-. It is submitted that the land value had increased considerably between 1993 and 1995. The learned counsel also submitted that the court below fixed the affected area only taking into account the actual extent occupied by the drawal of the line. The extent of the clearance area where the petitioners are not entitled to plant trees, construct buildings, etc., was not considered by the court below while fixing the compensation for diminution of land value. 7. From the Commissioner's report and the evidence on record, it is clear that the land is situated in an important locality within the limits of the Corporation of Cochin. The properties are within the city itself. I am of the view that the court below was not fully correct in fixing the land value at the rate adopted in Ext.A6 judgment. The increase in the land value between 1993, the date of cutting of trees in the case covered by Ext.A6 judgment and 20/04/1995 and 21/04/1995, the date of cutting of trees in the present case was not properly taken note of by the court below. The objections to C.R.P.No.912/2006 : 5 : the Commissioner's report filed by the petitioners wherein the total area affected due to the drawal of the line was calculated at 36.86 cents was also not properly considered by the court below. The clearance area required after drawal of line was also not taken note of by the court below. On the basis of the materials on record, I am of the view that the land value fixed by the court below is on the lower side. No reasons are stated as to why the value of land as suggested by the Commissioner was not acceptable to the court. 8. In **K.S.E.B** . v. **Livisha** ((2007) 6 SCC 792 = 2007 (3) KLT 1 (SC)), the Supreme Court held thus: “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. 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.” C.R.P.No.912/2006 : 6 : 9. For the aforesaid reasons, the order passed by the court below is set aside in so far as it relates to the compensation fixed by the court below on account of diminution of land value and the case is remanded to the court below for fresh disposal of point No.3 raised by the court below. Both parties will be entitled to adduce such other evidence as is relevant. The parties shall appear before the court below on 21[st] February, 2012. ## **K.T.SANKARAN, JUDGE** skj