IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 CRP.No. 1115 of 2004 AGAINST THE ORDER DATED 31.3.2004 IN (EA) OP.NO.157 OF 2002 ON THE FILE OF THE ADDITIONAL DISTRICT COURT,KOTTAYAM REVN. PETITIONER: PETITIONER: ------------------ SUSAMMA JOSEPH, W/O. DEVASIA JOSEPH, KOCHUPLACKAL, PLASSANAL P.O., THALAPPALAM. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW RESPONDENT: RESPONDENT: ------------- KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, KERALA STATE ELECTRICITY BOARD, TRIVANDRUM. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/04/2008, ALONG WITH CRP NO.1117 OF 2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------------- C.R.P. NOS.1115 & 1117 OF 2004 -------------------------------------------- Dated this the 2nd April, 2008 O R D E R These Revisions arise out of (EA) O.P.Nos.157 of 2002 and 158 of 2002, on the file of the Court of the Additional District Judge, Kottayam. The petitioner in (EA) O.P.No.158 of 2002 is the husband of the petitioner in (EA)O.P.No.157 of 2002. 2. For drawing Mankara-Erattupetta 110 KV Electric Line, large number of yielding and non-yielding trees were cut and removed from the property of the petitioners. The Kerala State Electricity Board awarded a sum of Rs.1,24,954/- to the petitioner in (EA) O.P.No.157 of 2002 and a sum of Rs.1,30,097/- to the petitioner in (EA)O.P.No.158 of 2002. Dissatisfied with the quantum of compensation awarded, they filed the Original Petitions before the court below claiming enhanced compensation. The court below by the common order dated 31.3.2004 held that the petitioner in (EA) O.P.No.157 of 2002 would be entitled to a total compensation of Rs.2,04,698.50 and after deducting the amount already awarded, the petitioner would be entitled to an enhanced compensation of Rs.80,794.50 on account of the compensation for the trees cut. For diminution of land value, a sum of Rs.10,800/- was awarded to the petitioner. The court below held that the petitioner in (EA) C.R.P. NOS.1115 & 1117 OF 2004 :: 2 :: O.P.No.158 of 2002 would be entitled to a compensation of Rs.1,96,592.51 for tree cutting and after deducting the amount already awarded, he would be entitled to Rs.70,535.51 and for diminution of land value, the petitioner would be entitled to a sum of Rs.18,600/-. The court below also held that the enhanced compensation would carry interest at 6% per annum from the date of the petition, namely, 19.12.2002, till payment. Dissatisfied with the quantum of compensation awarded by the court below, the petitioners in the Original Petitions have filed these Civil Revision Petitions. 3. From the order passed by the court below, it is seen that 17 coconut trees, 23 arecanut trees, 100 pepper vines, 428 coffee plants, 100 plantains, 250 pineapple and other miscellaneous trees were cut from the property belonging to the petitioner in (EA) O.P.No.157 of 2002. The order shows that nine coconut trees, 45 rubber trees, 193 pepper vines, 383 coffee plantains, 150 anjili trees and other miscellaneous trees were cut from the property belonging to the petitioner in (EA)O.P.No.158 of 2002. 4. The petitioner in (EA) O.P.No.157 of 2002 claimed enhanced compensation of Rs.19.2 lakhs and the petitioner in (EA)O.P.No.158 of 2002 claimed a sum of Rs.20 lakhs. Interest at 12% was also claimed by C.R.P. NOS.1115 & 1117 OF 2004 :: 3 :: the petitioners. Before the court below the petitioner in (EA)O.P.No.158 of 2002 was examined as PW1 and Exts.A1 to A5 were marked. No witness was examined on the side of the respondent. Exts.B1 and B2 valuation statements in the cases were marked on the side of the respondents. The Commissioner's report and sketch were marked as Exts.C1 and C1(a). 5. It was contended by the petitioners that the age, gross yield, value of commodities etc. assessed by the Board for the purpose of fixing the compensation was not correct. The court below held that the petitioners have not produced any documentary evidence or other evidence to prove that these data adopted by the Board while fixing the compensation were erroneous. The court below held that the Commissioner's report is not helpful in assessing the yield of the trees as he had not furnished necessary data for arriving at a conclusion as to the yield. 6. The contention of the petitioners that the Board was not right in taking ten times the annual income for assessing the compensation on annuity basis in view of the Full Bench decision in Kumba Amma v. K.S.E.B. (2000 (1) KLT 542) was accepted by the court below and interest at 5% was taken as the criterion for fixing the compensation. The C.R.P. NOS.1115 & 1117 OF 2004 :: 4 :: petitioners cannot have any grievance on this point. 7. The court below held that as regards non-yielding trees, the value adopted by the Board was reasonable. There is no evidence to come to the conclusion that the value fixed by the Board is low or that a proper method was not adopted by the Board in fixing the value of non- yielding trees. 8. The KSEB had taken 40% of the gross yield as net yield for assessing the compensation. The court below held that the net yield assessed by the Board is on the lower side. 50% of the gross yield was taken for the purpose of “uncertainties for the yield and also for maintenance expenses”. Therefore, 50% of the gross yield was taken as the net yield. I am of the view that the court below should have taken 60% of the gross yield of rubber as the net yield. In large number of cases the Courts had adopted 60% as the net yield. 9. As regards diminution of land value, the court below has fixed value of the land at Rs.3 lakhs per acre. PW1 had given evidence that the value of large area of land in that locality would be not less than Rs.6 lakhs per acre. Though the petitioners had produced Exts.A4 and A5 to prove the value of the land, the court below did not accept the same on C.R.P. NOS.1115 & 1117 OF 2004 :: 5 :: the ground that the properties covered by Exts.A4 and A5 are abutting a panchayat road while the land in question is an interior place. Considering all the relevant circumstances, the court below fixed the value of the land at Rs.3,000/- per cent. I do not think that the determination of the land value as made by the court below is erroneous. 10. However, the court below held that the petitioners are entitled to compensation for diminution of land value at 10% of the market value of the land affected by the drawal of the line. The discussion in paragraph 13 of the judgment is as follows: “On account of the drawing of the line it will be seen from Exts.C1 and C2 Commissioner's report and plan and also Ext.A3 Commissioner's report in an earlier proceedings between the Board and the petitioners that the properties were divided into two portions leaving a small portion which cannot be used for any useful purpose. Further it will not be possible to cultivate high growing yielding trees under the line and no building could be constructed under the line as well. Further PW1 had stated that on account of the sagging of the electric line no cultivation under the line will be possible and it will be destroyed due to heat. Since the electric line is drawn through the property the market value of the portion covered by the line will not be the same when compared to similar property in the locality. Considering these things there will be diminution in land value on account of the drawing of the line and the user of the property will be restricted to the petitioners thereby the utility of the land is also to some extent lost to the petitioners...” In the facts and circumstances of the case, I am of the view that the petitioners are entitled to 20% of the market value as compensation for C.R.P. NOS.1115 & 1117 OF 2004 :: 6 :: diminution in land value and loss of utility of land. 11. The court below has granted interest at 6% per annum on the enhanced compensation from the date of petition, namely, 19.12.2002, till payment. A Division Bench of this Court has held in KSEB v. Maranchi Matha (2008(1) KLT 1038) that interest on compensation for tree cutting shall be payable from the date of cutting. Accordingly, I hold that the petitioners are entitled to interest from the date of cutting of trees. For the aforesaid reasons, both the Civil Revision Petitions are allowed in part as indicated above and to that extent, the award passed by the court below is modified. The court below shall pass a final award in terms of this order and for that limited purpose, the cases are remanded to the court below. Parties shall appear before the court below on 26.5.2008. Within two weeks thereafter, the parties shall file a calculation statement. The court below shall dispose of the matter before 31.7.2008. (K.T.SANKARAN) Judge ahz/