IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 RP.No. 372 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN CRP.316/2004 Dated 25/07/2008 .................... REVIEW PETITIONER(S): RESPONDENT -------------------------------- THE SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDHUDHI BHAVAN,PATTOM,THIRUVANANTHAPURAM. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENT(S): REVN.PETITIONER ------------------------------ THE SECRETARY, AMMENEZHATHU BHUVANNESWARY KSHETHRA DEVASWOM, AROOR,CHERTHALA. ADV. SRI.A.KRISHNAN FOR R THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 06.10.2009 ALONG WITH RP NO. 373 OF 2009 , CRP NO. 316/2004 & CRP NO.33/2005 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.P No.372 of 2009 in C.R.P No. 316 of 2004 & R.P.No.373 of 2009 in C.R.P. No.33 of 2005 & C.R.P No. 316 of 2004 & C.R.P No. 33 of 2005 ---------------------------------------- Dated this the 6th day of October, 2009 ORDER The petitioner in both the review petitions is the Kerala State Electricity Board (Hereinafter referred to as the 'Board') and the respondent is the Secretary of the Ammenezhathu Bhvaneswary Kshethra Devaswom, Aroor,Cherthala. O.P (Ele) No. 213/1997 was filed, by the respondent herein who is the land ownerbefore the District Court, Alappuzha, for enhancement of compensation for the trees cut and removed and for diminution in land value in connection with the drawal of electric line by the Board. Subsequently the very same respondent (claimant) also filed O.P. 180/1998 before the said court claiming separate compensation for the area utilised for installing electric tower. Both Original Petitions were tried by the court below separately and separate judgments were rendered . 2. The review petitioner and the respondent herein filed C.R.P.Nos 33/2005 and 316 of 2004 respectively before this Court challenging the order of the District judge , Alappuzha in O.P(E.A) No. 180/1998. This court considered the cases separately and passed -2- separate orders. C.R.P. No. 33 of 2005 was dismissed and C.R.P. No. 316/2004 was partly allowed by this Court. 3. After hearing both sides I find that sufficient grounds are established for reviewing the final orders passed in the above said Civil revision petitions. 4. According to the Board the court below has fixed the total affected area as 14 Cents and that after remand by this Court vide order in C.R.P. No. 2626 of 2002, the affected area was reduced to 12 Cents by the order dated 5.3.2004 in O.P(Ele) No. 213/1997 and also reduced the land value from 20,000/- to 15,000/-. In O.P(EA) No. 180 of 1998 the court below found that 6 Cents is the area covered by the tower and granted 20,000/- per Cent as per its original order dated 4.8.2003. 4. A Commission was taken in both the Original Petitions. I found that in O.P(Ele) 213/1997, the Commissioner reported that the total affected area is 20 Cents. For the purpose of deciding the compensation under the head diminution in land value and Court below fixed the affected area as 12 Cents vide its order dated 5.3.2004, even though the said area is fixed as 14 Cents as per its original order dated 31.01.2001. In O.P(EA) No. 180/1998 the claim is only in respect of compensation for the area taken over for the purpose of installing the electric tower. in this case the court below fixed the area utilised for the erection of the tower as 6 cents instead of 9.564 cents fixed by the Commissioner. After perusing the Commissioner's report this Court found that the actual area utilised for the installation of the tower is 9.954 Cents. -3- Therefore the said area was modified by this Court as 9.954 Cents instead of 6 cents. The anomaly pointed out by the learned counsel for the Board is that in O.P (Ele) No. 213/1997 the injuriously affected area is worked out by the court below as 12 Cents vide its revised order dated 5.3.2004 is inclusive of the area taken over for installation of the electric tower I do not think that the said argument advanced by the learned counsel will stand. In O.P (Ele) No.213/1997 the compensation claimed is for diminution in land value due to the drawal of electric line only. Hence the question to be decided in that case is only as to what is the extent actually affected due to the drawal of electric line for the purpose deciding diminution in land value .Even though the Commissioner reported that the area affected is 20 cents, the Court below fixed the affected area as 12 cents in its order dated 5.3.2004. In O.P(Ele). No. 180/1998 the only question to be considered is what is the rate of compensation to be granted for the area utilised for installation of the electric tower. Even though Commissioner reported that the area affected due to the construction of electric tower is 9.954 Cents the court below held that 6 cents is the area utilised for the installation of the tower vide its original order dated 4.8.2003. This Court also held in C.R.P No. 316 of 2004 that the actual extent utilised for the installation of the tower is 9.954 Cents instead of 6 Cents and granted compensation for 9.954 Cents at the rate of 20,000/- per Cent. So the argument by the counsel for the Board that the affected area of 12 Cents is inclusive of the area utilised for installation of tower cannot stand . -4- 5. The counsel for the Board also submitted that this Court omitted to notice the fact that the court below has reduced the land value from 20,000/- to 15,000/- per Cent, that this court ought to have fixed the land value as Rs.15,000/- and that the respondent had got double benefit in the same land in the way of diminution in land value as well as for the land used for the erection of tower. I found that compensation for the area affected due to the erection of the electric tower is correctly determined in O.P(EA) No. 180/1998. The counsel for the Board has not brought to this Court's attention 2nd order of the court below dated 5.3.2004 in O.P(Ele) 213/1997 After perusing the Commissioner's report this Court held that the area utilised for the erection of electric tower is 9.954 Cents and the respondent herein is entitled to compensation at the rate of 20,000/- per Cent for 9.954 Cents. In fact if the said 2nd order had been brought to this Court's notice in time, the compensation for the said area should have been re-fixed at the rate of 15000/- per Cent In the above circumstances, the mistake crept in this regard is corrected. The land value of the property is re-fixed as 15,000/- instead of 20,000/- per Cent. Therefore R.P. Nos 372/2009 and 373/2009 are allowed.. It is made clear that there is no change in the area of 9.954 cents which is the area utilised for the erection of the electric tower. The orders in C.R.P Nos 316/2004 and 33/2005 are recalled. The above said Civil revision petitions are also partly allowed as indicated above. The market value of the property is re-fixed at Rs.15,000/- per Cent and the area for which the -5- claimant is entitled is fixed as 9.954 Cents. The impugned order in O.P (EA)No.180/1998 is modified to the said extent. There will be no order as to costs. The Board is at liberty to realise the excess amount paid pursuance to the orders passed by the court below. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.P No.372 of 2009 in C.R.P No. 316 of 2004 & R.P.No.373 of 2009 in C.R.P. No.33 of 2005 ---------------------------- ORDER 6th October, 2009