IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 CRP.No. 296 of 2006 --------------------- OPELE.147/1998 of DISTRICT COURT, PALAKKAD .................... REVN. PETITIONERS/ PETITIONERS: --------------------------------------- 1. MARY, W/O. LATE V.K.VASUDEVAN @ JOSEPH, KODAPPAN HOUSE, KOYAMARAKKADU, KANJIKODE P.O., PALAKKAD TALUK. 2. V.RAMESH, S/O. LATE V.K.VASUDEVAN @ JOSEPH, DO. DO. 3. V.FATHIMA RAZI @ RAMANI, D/O. -DO- AND W/O. PAPPUSWAMY, THIRUMUDIPPALLAM, PALANIYAR PALAYAM P.O., CHITTUR TALUK. 4. V.RAVI, S/O. -DO-, KOYYAMARAKKADU, KANJIKODE P.O., PALAKKAD. 5. V.RAJINA, D/O. DO. AND W/O. AMALADAS, NO.55, 4TH CROSS B, CHIKKANGE LAY OUT, MAHESWARI NAGAR, MAHADEVAPURA P.O., BANGALORE-48. 6. J.RITA, D/O. DO., ANNAPOORNA LAY OUT, NEAR SIDHAPUDUR, GANDHIPURAM, COIMBATORE. 7. C.J.AGNES, D/O. DO. AND W/O. JAPAMALAIRAJ, GURU SAMARTH KRIPA, KOPAR ROAD, DOMBIVLI, WEST THANE DIST., MUMBAI - 421 202. 8. V.VIJAY, S/O. DO., KOYYAMARAKKADU, KANJIKODE P.O., PALAKKAD. 9. V.JAYAMERY, D/O. DO. DO. (CNTD...2) CRP.No. 296 of 2006 ::2:: 10. J.STELLA MERY, D/O. DO. AND W/O. S.RAVI, 163, ETTENGO NAGAR, SATHI ROAD, COIMBATORE. 11. V.SELVARAJ, S/O. DO. DO., KOYYAMARAKKADU, KANJIKKODE, PALAKKAD TALUK. (REVN. PETITIONERS 1 TO 7 AND 9 TO 11 ARE REP. BY THEIR P/A. HOLDER, SRI. V.VIJAY, 8TH REVN. PETITIONER HEREIN.) BY ADV. MR.TOM K.THOMAS RESPONDENTS/RESPONDENTS: ---------------------------------- 1. KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM, REP. BY CHAIRMAN. 2. THE ASSISTANT EXECUTIVE ENGINEER, SUB-STATION, SUB DIVISION, K.S.E. BOARD, VENNAKKARA, PALAKKAD. 3. THE DEPUTY TAHASILDAR (L.A.), K.S.E. BOARD, MALAPPURAM. 4. THE DEPUTY COLLECTOR (L.A.), K.S.E. BOARD, CALICUT. BY ADV.MR.C.K.KARUNAKARAN, SC FOR KSEB THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/12/2009, ALONG WITH CRP NO.1007 OF 2004 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- C.R.P.Nos.1007/2004 & 296/2006 --------------------------------- Dated this the 2nd day of December, 2009 O R D E R Both the revisions are directed against the order dated 6.3.2004 in O.P.(Ele).No.147 of 1998 passed by the learned District Judge, Palakkad. C.R.P.No.296 of 2006 is filed by the claimants and the other revision C.R.P.No.1007 of 2004 by the respondent, Kerala State Electricity Board, hereinafter referred to as the Board. Towards the drawing of a 110 KV line tower line from Panampally 220 KV sub station to Kanjikode Railway Traction sub station, nearby the railway station, Kanjikode, the Board put up a tower in the property of the plaintiff and also had drawn over head electric lines through that property cutting and removing some valuable yielding trees. Towards compensation thereof the Board awarded a sum of Rs.23,454/-. Impeaching the compensation awarded as inadequate and unreasonable the claimants filed the above O.P. under Section 51 of the Indian Electricity Act r/w Sections 10 and 16 of the Indian Telegraph Act and Sections 42 & 60 of the Indian Electricity (Supply) Act. The C.R.P.1007/04 & 296/06 2 board resisted that application contending that adequate compensation had been paid. In the enquiry on the claim made, one of the claimants was examined as PW1 and A1 to A6 were exhibited. A report obtained by deputing an advocate commissioner was also exhibited as directed. No evidence was let in by the respondent/board. After examining the materials produced and hearing the counsel on both sides, the learned District Judge found that the claim raised by the claimants towards the cutting and removal of the valuable trees has not been satisfactorily established and so much so compensation sought under that head was declined. Taking note that in putting up the tower 1.5 cents of the property belonging to the claimants was rendered practically useless and that drawing of the overhead lines through their property had caused injurious affectation and diminution of land value, learned District Judge awarded compensation of Rs.97,500/- directing the Board to pay such sum with 9% interest per annum from the date of petition till the date of payment. Diminution of land value was assessed by the court on the basis of A1 sale deed, but, not relying it C.R.P.1007/04 & 296/06 3 entirely, fixing a sum o Rs.15,000/- per cent. On the basis of the commission report the learned District Judge formed a conclusion that 10 cents of the property of the claimants has been injuriously affected to the extent of 50%. On that basis compensation was adjudged towards the diminution of land value and injurious affectation. The Board has filed the revision C.R.P.No.1007 of 2004 challenging the compensation awarded as excessive and unreasonable. The claimants have filed the other revision C.R.P.No.296 of 2006, contending that the compensation given was inadequate and, further, there was non exercise of jurisdiction by the court in not awarding the compensation towards the loss or damages sustained by the cutting and removal of the trees for drawing of the overhead lines. 2. I heard the learned counsel on both sides. 3. At the time of hearing counsel on both sides submitted that the method followed by the learned District Judge in adjudging the compensation was not proper and correct and it requires reconsideration after remission by setting aside the order. Reliance is placed by both sides on the decision rendered C.R.P.1007/04 & 296/06 4 by the apex court in KSEB v. Livisha (2007(3) KLT 1). Perusing the impugned order, I find that the reasons stated by the learned District Judge for nonawarding of the enhanced compensation towards cutting and removal of yielding trees which are seen to be 7 coconut trees, all of them aged 15 years, at any rate cannot be approved. Admittedly, the Board has followed 10% annuity return for fixing the compensation payable for the trees cut and removed. This Court in Kumba Amma v. KSEB (2000 (1) KLT 542) has held that in such cases 5% annuity has to be followed in assessing reasonable compensation payable. True, that decision has been to some extent held to be not strictly applicable by the decision referred to above rendered by the apex cour,t properly known as Livisha's case. In Livisha's case the apex court has pointed out that the situs of the land, the distance between the high voltage line drawn over, the extent of land thereof and other similar relevant factors are of much significance in adjudging the compensation payable. It is further held the value of the land is a relevant factor. It is noticed that none of the aspects has been considered by the C.R.P.1007/04 & 296/06 5 court below in fixing the compensation payable. So much so, the impugned order is liable to be set aside. The case is remitted for fresh consideration directing the court below to reassess the compensation payable taking note of the decision rendered by the apex court referred to above and other legal principles applicable. The court below shall give top priority to the petition and dispose of it expeditiously after giving an opportunity to both sides to lead further evidence to substantiate their respective case. Parties shall appear before the court below on 14.1.2010. Writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-