Raja Lekshmi and others (Legal heirs of 1st petitioner) v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **FRIDAY, THE 28TH DAY OF MARCH 2014/7TH CHAITHRA, 1936** ## **CRP.No. 437 of 2011 ( )** **-----------------------(AGAINST THE ORDER IN OP(ELE).NO. 169/1999 OF ADDL.DISTRICT COURT-I, MAVELIKKARA DATED 31-10-2009) --------------------------** ## **REVISION PETITIONER(S)/PETITIONERS & LEGAL HEIRS OF 1ST PETITIONER:** - **-----------------------------------------------------------------------------------------------------------------** **1. RAJALEKSHMY, KANJIRAPPALLIL HOUSE, VERUVALLY BHAGOM, KAYAMKULAM, KEERIKKADU, KARTHIKAPPALLY TALUK. (DIED ON 14.5.2011).** **2. SASI KUMAR.G., KANJIRAPPALLIL HOUSE, VERUVALLY BHAGOM, KAYAMKULAM, KEERIKKADU, KARTHIKAPPALLY TALUK.** **3. PUSHPA, KANJIRAPPALLIL HOUSE, VERUVALLY BHAGOM, KAYAMKULAM, KEERIKKADU, KARTHIKAPPALLY TALUK.** **4. T.S.GOPALAKRISHNAN NAIR, AGED 67,** - **S/O.SREEDHARA PANICKER, KANJIRAPPALLIL HOUSE, VERUVALLY BHAGOM, KAYAMKULAM, KEERIKKADU, KARTHIKAPPALLY TALUK.** **5. G.ARUN KUMAR, AGED 29 YEARS, S/O.GOPALAKRISHNAN NAIR, KANJIRAPPALLIL HOUSE, VERUVALLY BHAGOM, KAYAMKULAM, KEERIKKADU, KARTHIKAPPALLY TALUK.(MENTALLY RETARDED PERSON) REPRESENTED BY NEXT FRIEND AND GUARDIAN, T.S.GOPALAKRISHNAN NAIR (FATHER)** ## **BY ADV. SRI.M.R.ARUN KUMAR** ## **RESPONDENT/CR.PETITIONER :** **-----------------------------------------------** **KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 001.** ## **BY SRI.K.M.SATHYANATHA MENON,SC,KSEB** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **K.HARILAL, J.** = = = = = = = = = = = ## **C.R.P.No.437 of 2011** = = = = = = = = = = = = = = = Dated this the 28[th] day of March, 2014 **O R D E R** The revision petitioners are the petitioners in O.P. (Electricity) No.169 of 1999 on the files of the Additional District Court -I, Mavelikkara. The above petition was filed under Sec. 16 of the Indian Telegraph Act read with Sec.51 of the Indian Electricity Act, claiming compensation for the loss sustained by the revision petitioners due to cutting of trees and drawing of electric line through the property owned and possessed by them. The respondent had given ₹ 76,760/- as compensation to the revision petitioners for the cutting and removal of trees. No amount had been given as compensation for diminution of land value. Feeling aggrieved, they had preferred the above O.P. After considering the rival contentions, the court below passed an award allowing the petitioners to realise a sum of Rs.65,680/- as enhanced compensation with 6% interest C.R.P.No.437 of 2011 **==> picture [7 x 9] intentionally omitted <==** from the date of cutting the trees. The legality and propriety of the findings in the impugned order is under challenge in this revision petition. 2. The learned counsel for the revision petitioners submits that the enhanced compensation granted by the court below is also inadequate when considering the heavy loss sustained by them by drawing 110 K.V transmission line through the middle of their property having an extent of 65.18 Ares. The court below went wrong by fixing Rs.5,000/- only as market value of the property and also by fixing 30% as diminution value. The property is situating in a potential area surrounded by important public offices, hospitals, temple etc. The property is lying very near to NH 47. Similarly, the diminution value was fixed without considering the actual loss sustained by drawing the line through the middle of the property. Secondly, by the erection of two towers covering an area of 3 cents, that area was virtually rendered useless and as per the rules, the petitioners are not entitled to use the area beneath the C.R.P.No.437 of 2011 **==> picture [7 x 10] intentionally omitted <==** tower. Therefore, the court below instead of granting 50% as diminution value ought to have granted full market value for the area used for erecting the tower. The learned counsel challenged the fixation of compensation for tree value also. 3. Per contra, the learned counsel for the respondent advanced arguments to justify the impugned order under challenge. According to him, the compensation granted to the petitioners is excessive and the market value of the property was fixed without any basis. Similarly, the diminution value was fixed as 30% without considering the fact that the property beneath the transmission lines also can be used restrictively for the cultivation of seasonal drops. The learned counsel further challenged the granting of compensation considering the diminution value at the rate 50% for the area used for erection of tower. According to him, the compensation granted for tree value is just and proper. 4. Heard Shri.Arun Kumar, the learned counsel for the C.R.P.No.437 of 2011 **==> picture [7 x 9] intentionally omitted <==** revision petitioner and the learned standing counsel for the respondent. 5. I have given my anxious consideration to the arguments advanced at the Bar. The short question to be considered in this revision petition is, whether the court below has failed to exercise jurisdiction vested in it properly or acted in the exercise of jurisdiction illegally or with material irregularity. Put it differently, the question is, whether the determination of compensation is just and proper. 6. Though, the learned counsel for the revision petitioners advanced arguments challenging the determination of compensation for tree value, going by the impugned order, I find that earlier by the judgment dated 30/07/2005 passed by the very same court, the revision petitioners were given 67,886/-with interest and the said₹ award was challenged in C.R.P No.142 of 2006 and this Court by order dated 22/01/2008 set aside the award and the matter was remitted back to the very same court for C.R.P.No.437 of 2011 5 fresh consideration. in the light of the principles laid down in **K.S.E.B. v. Livisha** [2007 (3) KLT 1 (SC)] and **Airport Authority of India v. Satya Gopal Roy** (2002 (3) SCC 527). In the earlier revision, the main challenge was against the determination of compensation for loss of trees. Going by the judgment, I find that the court below had redetermined the compensation for tree value in accordance with the principles laid down in the decisions referred above and I find that the court below has re-determined the compensation for tree value in accordance with the principles laid down in the above decision. I do not find any reason to interfere with the determination of compensation for tree value. So, the total amount of 1,12,433/- fixed as₹ compensation for loss of trees, would stand confirmed. The enhanced compensation would come 35,673/- only. ₹ 7. Coming to the compensation for diminution of land value, no amount had been given by the respondent for the same. But, in the impugned order , the court below has given a total compensation of 30,000/- for diminution of₹ C.R.P.No.437 of 2011 6 land value. Going by Ext.C1 Commission report, it could be seen that the total extent of the property is 65.18 Ares and 110 KV transmission line has been drawn through the middle of the property dividing the said property into two. The commissioner has specifically reported the area exactly beneath the line will come 15 cents and the total affected area including clearing area would come 30 cents. So, the court below rightly fixed 30 cents as affected area. As regards diminution of market value, the Commissioner in C1 report, it is stated that on account of drawing of the lines 35% fall in price has taken place in the market value of the land. But, while determining the percentage of diminution value, the court below has fixed at 15% of the market value. The above reduction from 35% to 15% has been made, without any basis or reasoning. Therefore, I find that the percentage of diminution value can be re-fixed to 30%. Though, the learned counsel for the respondent also advanced arguments to justify the reduction of 35% to 15%, I am unable to accept his argument in the absence of C.R.P.No.437 of 2011 7 any basis for such reduction. Therefore, I find that the petitioners are entitled to get diminution value at 30% for 30 cents of affected area. So, the compensation for diminution of land value for the affected area would come to ₹ 45,000/- [(5,000 x 30 x 30)/100]. Coming to the compensation for tower area, the Commissioner has categorically stated that 3 cents of property has been taken for erecting the tower. But, the court below has given 50% of the market value for 3 cents of property. 6. The learned counsel for the revision petitioners submits that the area beneath the tower cannot be used for any purpose and virtually that 3 cents of property also was rendered useless as per the rules even the owner of the property is not allowed to enter into that area. The learned counsel for the respondent submits that even after the erection of tower, the ownership of the property is vested in the revision petitioners. But, I am of the opinion that though, ownership of the land is vested with the petitioner that portion beneath the tower can be used for very limited C.R.P.No.437 of 2011 8 purpose only. So, diminution of land value for 3 cents would stand re-fixed at 75% of the market value. Thus, the compensation for the tower area would come 11,250/-.₹ Thus, the petitioners are entitled to get 56,250/- (45,000 +₹ 11,250) as total compensation for diminution of land value. Put it differently, in addition to the compensation given to the revision petitioners by the respondent, the petitioners are entitled to get additional compensation of 91,923/-₹ (35,673 + 56,250) with 6% interest from the date of cutting the trees as enhanced compensation. This revision petition is disposed of accordingly. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge