IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 CRP.No. 190 of 2008() ----------------------------------- OP(ELE).204/2004 of ADDL.DISTRICT COURT (ADHOC)-II, ERNAKULAM .................... REVN. PETITIONER(S): PETITIONERS IN EL(OP): --------------------------------------- 1. M.NANDAKUMAR, MITTATHULLIL HOUSE, MARAR ROAD, TRICHUR. 2. M.VIJAYAKUMAR, MITTATHULLIL HOUSE, MARAR ROAD, TRICHUR. 3. M.SREEKUMAR, MITTATHULLIL HOUSE, MARAR ROAD, TRICHUR. 4. RAJAKUMAR @ RAJAGOPALAN, MITTATHULLIL HOUSE, MARAR ROAD, TRICHUR. BY ADVS.MR.C.S.AJITH PRAKASH MR.RAJAKRISHNAN. K RESPONDENT(S): RESPONDENTS IN EL (OP): ------------------------------ 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM. 2. DEPUTY CHIEF ENGINEER, KSE BOARD, TRANSMISSION CIRCLE, KALAMASSERY. R1 & R2 BY ADVS. MR.N.N.SUGUNAPALAN, SC, MR . S.SUJIN . THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2009, ALONG WITH CRP NO. 38 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J. ----------------------------- C.R.P.Nos.190 AND 38 OF 2008 -------------------------- Dated this the 14th day of October 2009 ------------------------------------- ORDER These two revisions are filed against the order dated 18/08/2007 in O.P(Ele) No.204 of 2004 passed by the learned Additional District Judge(Adhoc II), Ernakulam. The above Original petition was filed under Section 10 and 16(3) of the Indian Telegraph Act 1885 r/w Section 51 of the Indian Electricity Act seeking enhanced compensation for the damages caused on the drawing of overhead lines through the property of the revision petitioners in C.R.P No.190 of 2008, having an extent of 2.05 Acres comprised in survey numbers 815/1, 815/2, 1079/3 and 814/2 of Elamkulam village in Ernakulam district. The respondent in the above revision, namely Kerala State Electricity Board, herein after referred as the Board, took C.R.P.Nos.190 AND 38 OF 2008 Page numbers possession of an area of 11.154 cents from the above property for installation of towers to draw 110Kv line for drawing Bhrahmapuram Panampally Nagar electric line. Fixing a market value of Rs.52,618/- (Rupees fifty two thousand six hundred and eighteen only) per Are compensation for the area injuriously affected for erecting the tower was fixed at 60%, and a sum of Rs.1,40,860/- (Rupees One lakh forty thousand eight hundred and sixty only) was assessed. Towards the drawing of the overhead lines an area of 64.325 cents was determined as injuriously affected, and towards compensation thereof, assessing such injurious affectation at 40% of the aforesaid market value, compensation was fixed at Rs.5,41,502/- (Rupees five lakh forty one thousand five hundred and two only). Thus a total compensation of Rs.6,82,362/- (Rupees six lakh eighty two thousand three hundred and sixty two only) was provided for loss and injury suffered by the claimants. Dissatisfied with the compensation so awarded and impeaching the C.R.P.Nos.190 AND 38 OF 2008 Page numbers assessment made as unreasonable and inadequate, the above claim petition was filed before the court. The Board resisted the claim by filing objections contending that reasonable and adequate compensation had been paid. In the enquiry conducted over the petition, on behalf of the claimants PW1 was examined and Exts.A1 to A5 were exhibitted. Board got examined one witness as RW1 and exhibitted as R1. The learned District Judge after appreciating the materials produced and hearing the counsel on both sides reassessed the compensation payable taking a view that, towards compensation for erection of the tower, 100% compensation has to be provided for the entire area taken for putting up the tower. So far as, the diminution of land value on account of the drawing of line, on the materials placed, the court formed an opinion that a larger extent than what was determined by the Board had been injuriously affected and with reference to a registered title deed produced showing the market value of a nereby C.R.P.Nos.190 AND 38 OF 2008 Page numbers property which is stated to be situated closeby fixing the centage value of the property at Rs.1,31,000/- (Rupees One lakh thirty one thousand only) the learned District Judge awarded compensation of Rs.10,29,200/- (Rupees Ten lakh twenty nine thousand two hundred only). Thus the claimants were found entitled to a total compensation of Rs.14,75,360/- (Rupees fourteen thousand seventy five thousand three hundred and sixty only) from which deducting the sum already paid to the petitioners, enhanced compensation of Rs.7,92,998/- (Rupees Seven lakh ninety two thousand nine hundred and ninety eight only) was awarded. In the award, 6% interest was also directed to be paid from the date of filing of the petition for enhanced compensation. The Board has challenged the compensation so awarded by filing C.R.P No.38/2008, and the claimants, C.R.P No.190/2008. C.R.P.Nos.190 AND 38 OF 2008 Page numbers 2. Since both the revisions arise from the same order, after being heard together theyare disposed by this common order. I heard the counsel on both sides. 3. Perusing the order passed by the learned District Judge, impugned in the revision, it is noticed that the guidelines enunciated in “K.S E.B v Levisha” (2007(6) SCC 792) have not been considered in determining the enhanced compensation payable towards the drawing of the overhead lines through the property of the claimants. The impugned order would show that after fixing the centage value of the property on the basis of a registered document at Rs.1,31,000/-(Rupees One lakh thirty one thousand only), the learned District Judge proceeded to fix the area which is injuriously affected by drawing of the line and also the percent at which such land suffered diminution in its value. A reference is seen made to the commission report as to the proximity of the C.R.P.Nos.190 AND 38 OF 2008 Page numbers land through which the line was drawn, to a nereby road. There is no more discussion in the order as to the importance of the land to close by institutions, concerns and such other factors which are relevant in determining the potential value of the land and also assessing of its diminution on account of the overhead lines drawn. In the above reported decision rendered by the apex court, it has been pointed out that the citus of the land, the distance between the high voltage electric line laid there over, the extent of the land thereof and whether the line was drawn over a small track of land or middle of the land and such other matters are relevant, from which, determinative steps have to be taken for assessment of the compensation payable. Citus of the land and its proximity to public offices, educational institutions etc. may also be of much significance in determining its potential value and how far overhead lines drawn through that property will injuriously diminish its value. Of course, the Board has a case that the C.R.P.Nos.190 AND 38 OF 2008 Page numbers land at the time of drawing of line was water logged. If that be so, that circumstance also has to be taken into account with such other relevant factors applicable for determining the potential value of the land and, then, ascertaining of its diminution in value on account of the drawing of the overhead lines. Since the principles applicable for determination of compensation have not been considered by the court below while passing the impugned order, it has become imperative and necessary to set aside the order and remit it for fresh disposal taking note of the decision rendered by the apex court referred to above. Both sides will be given opportunity to lead further evidence, if sought for, to prove their respective case. During the pendency of the revision, conditional stay of operation of the impugned Order was ordered directing the Board to deposit 25% of the enhanced compensation. Such deposit being made the claimant was permitted to withdraw the sum. Amount so deposited and C.R.P.Nos.190 AND 38 OF 2008 Page numbers released to the claimant shall be given to credit to in the enhanced compensation by the court after redetermination of compensation, on remission of the case. Bond already executed by the petitioner for release of the amount deposited as indicated above shall continue to be in force, and will be subject to the final orders to be passed in the petition. 4. The court below is directed to give the petition top priority in hearing and dispose it as expeditiously as possible, at any rate before the closing of the courts for mid summer vacation. Petition is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv