Viswambharan v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** # **WEDNESDAY, THE 2ND DAY OF JANUARY 2013/12TH POUSHA 1934** ## **CRP.No. 483 of 2008 ( )** **----------------------{IN OPELE.50/2004 OF THE ADDL.DISTRICT COURT,ALAPPUZHA}** **REVISION PETITIONER(S)/RESPONDENT:** **-----------------------------------------------------** **KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE SECRETARY KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM.** **BY ADVS.SRI. ASOK M.CHERIYAN, SC FOR KSEB SRI.PULIKOOL ABUBACKER, SC FOR KSEB** ## **RESPONDENT(S)/PETITIONER:** **----------------------------------------** **VISWAMBHARAN, S/O MADHAVAN, MADHAVA MANDIRAM,VARANAD P.O.,CMC 6 CHERTHALA.** ## **BY ADV. SRI.N.RADHAKRISHNAN & SRI.V.S.BHASKARAN** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ALONG WITH CRP NO. 852/2008, ON 02-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **S.S.SATHEESACHANDRAN, J. ------------------------------C.R.P.NOS.483 & 852 OF 2008 ----------------------------------Dated this the 2[nd] day of January, 2013** ## **O R D E R** Both revisions are filed against the Order dated 31.01.2008 in O.P.(Ele.).No.50 of 2004 by the learned Additional District Judge, Alappuzha in a proceedings under Sections 10 and 16 of the Indian Telegraph Act read with Section 51 of the Indian Electricity Act. 2. C.R.P.No.852 of 2008 is filed by the applicant and C.R.P.No.483 of 2008, the respondent in the above proceedings Kerala State Electricity Board, for short, the 'Board'. Applicant in the original petition sought for enhanced compensation towards the trees cut and removed and also for injurious affection caused to his land by the drawing of overhead lines by the Board through his property. Compensation fixed and awarded at Rs.49,522/- by the Board was inadequate and insufficient was his case to seek enhanced compensation. The Board resisted that application contending that just and **C.R.P.NOS.483 & 852 OF 2008** **2** reasonable compensation was paid to the applicant. On the materials placed by both sides and after re-fixing the compensation in terms of the guidelines given in **Kumba Amma v. K.S.E.B. (2000 (1) KLT 542)** , the learned District Judge found that the applicant was entitled to enhanced compensation of Rs.36,765/- towards value of the trees cut and removed from his property. So far as his claim for injurious affection arriving at the conclusion that 22 cents of his property to the extent of 30% has been injuriously affected by the drawing of the lines, and fixing centage value of the property at Rs.6,000/-, the learned District Judge awarded the claim raised thereof at Rs.39,000/-. Thus, an enhanced compensation of Rs.76,365/- was awarded to the applicant directing the Board to pay such sum with 6% interest per annum from the date of application. Since the claimant had moved for enhanced compensation after a span of 11 years, learned District Judge held that he was not entitled to compensation from the date of cutting and removing of the trees. Compensation so fixed and awarded to the applicant is challenged by the Board contending that it is illegal and **C.R.P.NOS.483 & 852 OF 2008** **3** unsustainable, and the applicant on the ground that it is inadequate and insufficient. 3. I heard the counsel on both sides and also perused the materials produced in the case. Reassessment of compensation made by the learned District Judge relying on **Kumba Amma's case,** cited supra, is assailed by the learned counsel for the Board contending that the guidelines given in that decision no longer can form the basis for adjudgment of compensation in the light of the decision rendered by the Apex Court in **K.S.E.B. v. Livisha (2007 (3) KLT 1 (SC))** . Claim awarded towards injurious affection is not supported by convincing legal evidence, and, it is exorbitant and unreasonable and liable to be set aside, is the further submission of the counsel. Per contra, learned counsel for applicant would contend that what has been awarded after re-fixation of compensation on the materials placed by the learned District Judge is inadequate and the applicant is entitled to get more compensation for the loss and injury suffered by him by the drawing of overhead lines through his property. **C.R.P.NOS.483 & 852 OF 2008** **4** 4. The question emerging for consideration is whether any interference with the re-fixation of the compensation and award of additional sum over and above what has been fixed by the Board, to compensate the injury suffered by the applicant for the trees cut and removed and injurious affection caused to his property by the drawing of overhead electric lines, is called for in exercise of the revisional jurisdiction of this Court. Perusing the order passed by the learned District Judge, it is seen, compensation has been re-fixed relying on the guidelines in **Kumba Amma's case** , cited supra. True, in **Livisha's case,** cited supra, the Apex Court has held fixing of compensation in respect of trees cut and removed on the basis of assessing 5% return is not the decisive factor, and several other matters like the situs of the land, distance between the high voltage electricity line laid, the extent of the line drawn as also whether the high voltage line passes over a small tract of land or through the middle of the land and other relevant factors should have determinative value in adjudging and fixing the compensation. Value of the land also will be a relevant factor, it was further **C.R.P.NOS.483 & 852 OF 2008** **5** observed. However, after pointing out certain relevant factors to be taken note of in determining the compensation payable, the Apex Court has observed so far as the compensation over fruit bearing trees, the same would depend upon the facts and circumstances of each case. So much so, all the relevant factors which have determinative value in assessment of compensation have to be taken into account in fixing the compensation and it should not be following a mechanical approach of assessment of compensation on 5% return as the sole guiding factor, is the spirit of the decision. On the facts and circumstances presented in the case and materials produced having regard to the fact that 16 yielding coconut trees and seven yielding arecanut trees were cut and removed apart from other non-yielding trees and where it is seen only in respect of the yielding trees cut and removed reassessment of the compensation had been made by the learned District Judge following the guidelines in **Kumba Amma's case** , I find, no interference with the compensation re-fixed is warranted. Exts.C1 report and C2 sketch prepared by the Advocate commissioner deputed by the court showed that nearly **C.R.P.NOS.483 & 852 OF 2008** **6** 26 cents of land in the property of the applicant had been injuriously affected by the drawing of electric lines. What was drawn was 110 KV transmission line which required a clearance of 10.80 sq. mtrs. That also being taken note of, the learned District Judge held that 22 cents of applicant's property has been injuriously affected. Though the claimant produced a document to show that market value of the property per cent was Rs.12,000/-, after careful scrutiny of such document with other materials, learned District Judge fixed the centage value of Rs.6,000/-. 22 cents of land of the applicant was injuriously affected to the extent of 30% by the drawing of the lines was the conclusion found by the learned District Judge to award him compensation of Rs.39,000/- on the centage value fixed above. I do not find any impropriety, leave alone any illegality, in the compensation fixed and awarded. Whatever amount directed to be paid as enhanced compensation over and above the sum fixed by the Board has been arrived at after examining the materials produced and also taking note of the facts and circumstances presented in the case. Where it is shown that compensation has **C.R.P.NOS.483 & 852 OF 2008** **7** been adjudged on the materials placed taking note of all relevant factors, challenge canvassed that it is excessive without substantiating why it should be treated so cannot be accepted. There is also no merit in the challenge raised by the applicant that what has been awarded as compensation after reassessment is inadequate and insufficient. No ground whatsoever has been made out to exercise the revisional jurisdiction of this Court to interfere with or for re-fixation of the enhanced compensation awarded by the court below. Both revisions are dismissed. **Sd/S.S.SATHEESACHANDRAN JUDGE** prp //true copy//