P. V. Thomas v. Power Grid Corporation of India Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 12TH DAY OF JANUARY 2017/22ND POUSHA, 1938** **CRP.No. 425 of 2014 ()** **-----------------------** **AGAINST THE ORDER/JUDGMENT IN OPELE 250/2005 of II ADDL.D.C. & ADDL.MACT,KOLLAM DATED 20-12-2013** **REVISION PETITIONER(S)/PETITIONERS:** **---------------------------------** **P.V THOMAS, AGED 62, S/O.VARGHESE,PERAKATTU VEEDU,KALUVETTAMKUZHI MURI,THINKALKARIKKAM VILLAGE** ## **BY ADV. SRI.ARUN BABU** ## **RESPONDENT(S)/RESPONDENT:** **---------------------------** **POWER GRID CORPORATION OF INDIA LTD PONGUMOODU,THIRUVANANTHAPURAM,REPRESENTED BY ITS MANAGING DIRECTOR 695 001** ## **R BY SRI.MILLU DANDAPANI** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 4-11-2016, THE COURT ON 12/1/2017 PASSED THE FOLLOWING:** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **C.R.P.No.425 of 2014** - - - - -- - - - - - - - - - - Dated this the 12[th] day of January, 2017 ## **O R D E R** The revision petitioner is the petitioner before the court below in O.P.(Ele)No.250/2005, who is aggrieved by the insufficient compensation granted by the court below for the damages caused due to the drawal of electricity line across his property. 2. The revision petitioner is the owner of 45 cents of land, which was the subject matter of the electricity O.P. According to him, the cutting and removal of various yielding trees in his land had injuriously affected 22.72 cents of land and valuable high yielding trees were cut off. He approached the court below, aggrieved by the compensation amount of Rs.1,57,929/-, ordered to be paid to him. He sought a compensation towards the cutting of trees and diminution in the land value, totaling to Rs.22,19,814/-. Before the court below, both sides let in evidence. The court below granted an enhanced total compensation of Rs.3,53,792/-. After deducting the compensation already received for the items and 10% deduction for labour cost, the enhanced compensation was computed at Rs.1,96,904/-. This is challenged in this revision. C.R.P.No. 425/2014 2 3. Essentially, the order was challenged by the learned counsel for the revision petitioner on the grounds that the compensation for loss due to the trees been cut is insufficient and also that the compensation ordered for diminution of land value was much low. It was contended that the court did not follow the procedure laid down by the judicial precedents in computing the compensation. Regarding the loss for the trees cut, the contention mainly revolved around the multiplier selected by the court below as well as regarding the valuation of the yield in relation to the rubber trees as well as pepper vine. He also challenged the direction of the court below to deduct 10% towards the labour cost. He challenged the land value fixed by the court. 4. The court below had adopted 8 year multiplier for fixing the compensation, relying on the decision reported in **Airports Authority of India v. Satyagopal Roy[(2002) 3 SCC 527]** . It was held therein that the capitalization method with 8 years multiplier should be the criteria for fixing the compensation payable on account of the yield from the trees. The court purportedly followed the decision in **KSEB v. Livisha[2007 (3) KLT 1]** The District Court therein had adopted the capitalization method with 8 as multiplier. However, the court below seems to have failed to take note of the subsequent decision in **Shaik Imambi v. Special Deputy Collector(LA), Telungu Ganga Project [ 2011 (11) SCC 639].** In the above decision, the court C.R.P.No. 425/2014 3 confirmed the multiplier of 10 holding that this was the consistent view taken by the Hon'ble Supreme Court. It upheld the multiplier of 10 adopted by the Hon'ble High court contrary to the multiplier of 14 adopted by the land acquisition officer in that case. It was held that the special circumstance for a higher multiplier was not made out. It seems that this Court in **Sudevan v. KSEB (CRP No.451/2012),** in an identical situation as that of the present one, had held that it would be just and reasonable to fix the multiplier of 10. There is absolutely no reason as to why in this case also the multiplier adopted should not be 10, instead of 8 adopted by the court below. I feel that the court below should have adopted 10 as multiplier and the petitioner will be entitled for the enhanced compensation at the rate of multiplier of 10. 5. Regarding the compensation in relation to 41 rubber trees, the contention of the petitioner was that the court below refused to take into consideration the yield from those trees. The inputs available before the court below regarding the annual income were the oral testimony of PW1, coupled with Ext.A5. PW1 in his evidence has claimed that he used to get much higher yield than mentioned in Ext.A4 and A4(a), the detailed valuation statements filed before the court below. The above statements show that the trees were cut at two different stages. The court below did not fully accept the claim regarding the yield, holding that there was no material to show that any scientific or authoritative method of C.R.P.No. 425/2014 4 calculating the yield was adopted by the Board, except the valuation by officials of the Board at the time of their one or two inspections. It was held that the oral testimony of the witness is more acceptable. The witness who had direct knowledge regarding the income over a long period of time, should be given due importance than that of the official witness, who got only one very little time to evaluate. It was also deposed by PW1 that all the trees of the same group were planted by him at a stretch. This was supported by Ext.C1 commission report. Ext.A5 was the certified copy of deposition of the Deputy Rubber Production Commissioner, Kottarakkara in O.P.(Electricity) No.197/2006. The court below referred to it and accepted the evidence of the witness as relevant, under section 34(4) of the Indian Evidence Act, being the testimony of an expert who had no relation with the present case, but as an opinion made by the Government official in relation to his professional duty, about the existence of certain matters of public or general importance. Though the court below accepted in general the oral testimony of PW1, it did not rely on Ext.A5, the evidence of the commissioner regarding the annual yield in relation to 41 rubber trees. The court fixed the annual yield as 10 k.g. without any basis. The court necessarily, should have followed the version in Ext.A5 . In Sudevan's case(cited supra), this court had already accepted the same report of the Deputy Rubber Production Commissioner wherein he had deposed that the total yield per day C.R.P.No. 425/2014 5 from one tree on one tapping would be 100 g. Reckoning alternate days to be the tapping days, 180 days was fixed by this Court. On that basis, the yield can be fixed as 15 kg. 6. In the above circumstances, in this case also I feel that there is nothing wrong in adopting the annual yield as 15 kg per tree instead of 10 kg adopted by the court below. Hence, the amount payable would 41x15x57x10 instead of 41x10x57x8 adopted by the court below. 7. Regarding the pepper vine , the court below quantified the annual yield by categorizing into two groups. Category 1 was fixed as having 17 trees of pepper vine each with four kg annual yield. Thereby, the court fixed the compensation payable as 43139/-. Regarding the pepper vines included in category 2, annual yield was fixed as 1.5kg. Hence, annual income from that category was fixed at Rs.24,741/. 8. Absolutely no reasoning is available on record as to why the court below adopted this distinction, especially in the background that PW1 had deposed that all the trees of each category were planted at the same time. The court below accepted the rate probably on the reasoning that they were shown in the mahazar in two categories. No other explanation is forthcoming from PW1 as to why different yardsticks should not be adopted. Though the court accepted that all the trees were of the same age, no reasoning is available as to why in the case of C.R.P.No. 425/2014 6 pepper vines alone, it were grouped differently . In the absence of any specific material on record in favour of the petitioner, I am inclined to accept the annual yield fixed by the court below for two different groups. 9. Yet another finding of the court below is regarding the 10% labour charges. There is absolutely nothing to show that it has gone into the concept while fixing the multiplier. Hence, the modified valuation of the trees will be as follows: ## 1. Coconut trees: 5(number of trees)x200(annual yielding)x 6(price)x10(multiplier) = Rs.60,000/- ## 2. Rubber trees: 41(number of trees)x15 kg(annual yielding)x 57(price)x10 (multiplier): =Rs.3,50,550/: Towards wood value =Rs. 4050/: 1(number of tree)x6 kg(annual yielding)x 30 (price)x10 multiplier = Rs. 1,800/- ## 3. Jack trees: ## 4. Cashew trees: ## 5. Pepper vines: |i).|26(number of vines)x1.5kg(annual yielding)|| |---|---|---| ||x79.30 (price) x10(multiplier)|= Rs.30,927/-| |ii)|17 (number of vines) x 4kg x 79.30 (price)|| ||x 10 multiplier.|= Rs. 53,924/-| C.R.P.No. 425/2014 7 ## 6.Coffee plant: 2(number of trees)x2.25 kg(annual yielding)x 50 (price)x10 (multiplier) = Rs. 2250/: = Rs. 800/- **========** Total : Rs.5,04,301/------------------Rs. 5,0430.1/--------------------Total : Rs.4,53,870.9 **=========** ## 7. Atha: Less:10% Labour charges : 10. Regarding the value of the land affected by the drawal of the electricity line, there seems to be no dispute regarding the extent. It is admitted that the revision petitioner is the owner of 45 cents of land and 22.72 cents was affected, out of which, 2.15 cents of land was completely covered by the tower. Evidently, it has resulted in 100% diminution of land value. Regarding the above,relying on Ext.A16 the court below had adopted the land value at the rate of Rs.6,000/- per cent . 25% of land value was taken as compensation for diminution of the land value. 25% of the land value adopted by the court is acceptable and does not call for any interference. 11. The value of the property fixed at Rs.6,000/- per cent, was seriously attacked by the learned counsel. It was stated that C.R.P.No. 425/2014 8 several inputs were placed before the court below from which the court below accepted the land value at the arbitrary rate of Rs.6,000/- per cent relying on Ext. A16. **In KSEB v. Livisha & others [cited supra]** the Hon'ble Supreme Court has held that the compensation payable to the person depends on several factors, which should be taken into consideration by the court below. It was held that the fixed formula for determining the amount of compensation may make the task of the land acquisition officer or the reference court easier, but each case should be required to be taken on its own merit. It was held that the purpose should be the guiding factor. It was held by the Court that the situation of the land, the distance between the high voltage electricity line laid thereon and 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 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. 12. Nearly, 22.72 cents of the land has been affected. Whether the electricity line passes through the middle of the land or cut the land angularly and access to the main road seems to have not been taken note of by the court below. However, the revision petitioner did not advance any serious argument on this. 9 C.R.P.No. 425/2014 13. Regarding the fixation of marked value, the Supreme Court in **Himmat Singh and Others v. State of M.P. And Another (2010 KHC 4934)** has held that when there are several exemplars with reference to similar lands, usually the highest of the exemplars, which is a bona fide transaction will be considered. Reckoning in this background, it seems that the court below by fixing Rs.6,000/- as the basic land value has not given any reason as to why it was selected as against the amount of Rs.30,769/which was the cent age value of the document. However, considering the road access, lie of the property and significance of the land, I am satisfied that a sum of Rs.8,000/- will be sufficient and the impugned award is liable to be modified as follows: ## diminution of land value: 20.575cents x 25% x Rs.8000 : Rs.41,150/- compensation for diminution of land value for the tower area: 2.15 cents x 100% x Rs.8,000/-- : Rs. 17,200 =========== Total compensation for diminution in land value : Rs. 58,350/=========== **Enhanced compensation ordered by this Court** . C.R.P.No. 425/2014 10 (Compensation for diminution in the land value + Compensation for the trees cut and removed: Rs.58,350 + 4, 53,870.9) : Rs.5,12,220.9 Compensation already granted: Rs.1,21,509/- Enhanced compensation entitled: ( Rs.5,12,220.9 - Rs.1,21,509/-) : **Rs.3,90,711.90** Hence, revision is allowed in part. The petitioner will be entitled to an enhanced compensation of **Rs.3,90,711.90/-** over and above Rs.1,21,509/- already granted by the court below, with the interest at the rate of 8% from 7/4/2004 with proportionate cost. Sd/- **SUNIL THOMAS Judge** dpk /true copy/ P.S. TO Judge. C.R.P.No. 425/2014 11