Ulahannan v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 4TH DAY OF JUNE 2014/14TH JYAISHTA, 1936** **CRP.No. 6 of 2009 (B)** **----------------------** **AGAINST THE ORDER IN OP(EA) 64/2003 of ADDL.DISTRICT COURT,KOTTAYAM DATED 09-01-2008** ## **REVISION PETITIONER(S)/PETITIONER:** **-----------------------------------** **ULAHANNAN, S/O.DANIEL, MALIKKUDIYIL, MELAMPARA, THALAPALAM VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER, M.D.JOSEPH, S/O.ULAHANNAN MALIKKUDIYIL HOUSE, MELAMPARA KARA, THALAPALAM VILLAGE.** **BY ADVS.SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU** ## **RESPONDENT(S)/RESPONDENTS:** **----------------------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN, PATTOM THIRUVANANTHAPURAM.** **2. SPECIAL DY.TAHSILDAR (LA),FOR KSEB, KOTTAYAM.** **BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB BY GOVERNMENT PLEADER ADV.SRI.GIKKU. BY ADV. SRI.PULIKOOL ABUBACKER, SC, KSEB** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **stu** ## **K.HARILAL, J.** = = = = = = = = = = = ## **C.R.P.No. 6 of 2009** = = = = = = = = = = = = = = = Dated this the 4[th] day of June, 2014 **O R D E R** The petitioner is the petitioner in O.P (E.A) No.64 of 2003 on the files of the Additional District Judge, Kottayam. The above petition was filed under Secs. 10 and 16 of the Indian Telegraph Act, under Sec. 51 of the Indian Electricity Act and Sec.42 of the Indian Electricity (Supply) Act, 1948, claiming compensation for the damages caused by the cutting and removal of fruit bearing trees from the petitioner's property and also for diminution of land value by drawing 110 KV electric transmission line over the middle of the said property. The respondents had passed an award granting compensation of Rs.23,027/- only. Feeling aggrieved, the petitioner had preferred the above petition claiming Rs.5,50,000/- as additional compensation. 2. The respondents filed objection contending that the compensation granted by the respondents is just and C.R.P.No. 6 of 2009 2 proper. The compensation has been determined on the basis of a mahazar prepared by the authorized officer of the respondents having expertise in assessing the age of the trees, yield from the trees and also the number of trees. According to the respondents, there was no scope for interference with the determination of compensation made by the respondents. PWs.1 and 2 were examined and Exts.A1 to A6(a) were marked for the petitioner. DW1 was examined and Exts.B1 to B9 were marked for the respondents. Exts.C1 and C1(a) were marked as court exhibits. After considering the evidence on record, the court below had passed the impugned order granting ₹ 71,759/- as enhanced compensation with interest @ 9% p.a. from the date of petition till realisation of the amount. This order is under challenge in this revision petition on various grounds. 3. The learned counsel for the petitioner submits that the amount determined by the court below as enhanced C.R.P.No. 6 of 2009 3 compensation is inadequate and disproportionate with the actual damages suffered by the petitioner. The main thrust of the argument is that, the market value fixed by the court below is too low and inadequate. The court below without sufficient reasoning discarded the market value shown in Exts.A6 and A6(a) sale deeds which relates to the properties situating in a similar situation in the same locality. Similarly, the court below has discarded Exts.C1 commission report and C1(a) sketch in the determination of injurious affection to the value and utility of the property. The affected area is also not properly determined. 4. Per contra, the learned counsel for the respondents submits that the amount granted by the court below as enhanced compensation is adequate and proportionate with the damages caused by cutting and removal of trees and also for drawing of electric line. According to the respondents, Exts.A6 and A6(a) properties are not comparable with the petitioner's property. So, the court 4 C.R.P.No. 6 of 2009 below cannot be found with fault for adopting the market value shown in Ext.A6 and A6(a) documents. 5. The short question that arises for consideration in this revision petition is, whether there is any illegality or impropriety in the determination of compensation made by the court below ? 6. Going by the impugned order, it is seen that, earlier, the respondents had given compensation taking annuity factor at the rate of 10% only. But, the court below corrected the same by adopting 5% instead of 10% in view of the decision of this Court in **Kumba Amma v. K.S.E.B** (2000 (1) KLT 542). 7. On an analysis of the determination of compensation given for cutting and removal of trees, it is seen that the court below meticulously considered each and every trees in accordance with its yield and annual yield shown in the mahazar prepared by the authorised officer. I find no reason to interfere with the compensation fixed for cutting C.R.P.No. 6 of 2009 5 and removal of trees from the petitioner's property. 8. Coming to diminution of land value, no amount had been given by the respondents. But, the court below had given compensation for diminution of land value also, in view of the decisions in **K.S.E.B v. T.T.P Kayyu** (1996 (1) KLT 432) and **K.S.E.B. v. Livisha** ( **2007 (3) KLT 1 (SC)** . But, it is seen that, though, the petitioner had produced Exts.A6 and A6(a) sale deeds, the court below had discarded the same and fixed the market value on guess work. But, it is pertinent to note that in Ext.C1 commission report, the Commissioner had stated that the property of the petitioner is a garden land and the same is abutting to the road. Public institutions are also situated within a radius of 200 metres of the property owned by the petitioner. The property involved in this case is situated 500 metres north of plassanal town and public institutions like hospitals, schools, bank, post office, krishi bhavan and St.Mary's church are situated within the said radius of 200 C.R.P.No. 6 of 2009 6 mtrs. But, the court below has not considered these aspects independently. Thus, it is seen that the court below has relied on neither the commission report nor the documents produced by the petitioner. 9. The learned counsel for the petitioner submits that, this Court, in an earlier batch cases with respect to properties situating adjacent to the petitioner's property, set aside the impugned order passed by the court below and remitted to the court below for redetermination of the market value of the property. I am also of the opinion that, in the absence of sufficient evidence to determine the correct market value of the property, this case also deserves to be remanded back for re-fixation of market value and redetermination of the actual affected area. 10. Hence, this case is also remanded to the court below for fresh disposal with the following directions. Compensation granted for cutting and removal of trees would stand confirmed. No modification is made in respect 7 ## C.R.P.No. 6 of 2009 of extent arrived at by the court below for erection of towers. The question of land value and the extent of affected area shall be redetermined by the court below afresh after affording an opportunity of being heard to both parties. It is apposite to grant an opportunity to both parties to adduce further evidence, if they require. It is just and proper to fix the diminution of land value at a minimum rate of 30% of 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 line and also the required land for keeping statutory clearance. The court below shall pass order afresh re-fixing compensation, within a period of six months. The revision petition is disposed of accordingly. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge