IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 CRP.No. 980 of 2006() --------------------- OP.559/2004 of ADDL. DISTRICT COURT-II, KOZHIKODE .................... REVN. PETITIONERS: RESPONDENTS ---------------------------------------------- 1. KERALA SATE ELECTRICITY BOARD, REP. BY ITS CHAIRMAN, VYDYUTHI BHAVAN, PATTOM, TRIVANDRUM. 2. THE EXECUTIVE ENGINEER, TRANSMISSION CENTRE, SUB-DIVISION, K.S.E.B., NALLALAM. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENT(S): PETITIONER ------------------------- M/S.KALPAKA RUBBER PLANTATIONS PVT.LTD., REP. BY ITS MANAGING DIRECTOR, P.V.GANGADHARAN, 6/337-G, Y.M.C.A. ROAD, CALICUT-673 001. ADV. SRI.T.G.RAJENDRAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. SURENDRA MOHAN, J. ```````````````````````````````` C.R.P. No. 980 of 2006 C ````````````````````````````````` Dated this the 25th day of September, 2009 O R D E R This is a revision filed by the Kerala State Electricity Board challenging the order dated 22.03.2006 of the District Court, Kozhikode in O.P.No.559/2004. 2. Rubber trees, arecanut trees and a few other trees were cut and removed from the estate of the respondent company on 05.05.2003 for drawing a 33 KV electric line. The K.S.E.B. paid Rs.67,873/- to the respondent as compensation. Dissatisfied with the compensation paid, the respondent approached the District Court, Kozhikode, claiming enhancement in compensation. The petition was contested by the K.S.E.B. 3. According to the respondent, the compensation paid was absolutely inadequate. The age of the trees, net return per year, the expectancy of income from the trees, CRP.980/06 : 2 : etc. were not assessed correctly by the K.S.E.B. while fixing the compensation. Though the land was not acquired, according to the respondent, the drawing of the electric line had considerably reduced the market value of the property. Therefore, the respondent claimed a total amount of Rs.21,57,127/- as enhanced compensation. 4. The K.S.E.B. contested the petition. According to the Board, the compensation awarded was adequate, just and reasonable. The Board contended that the respondent could cultivate short term crops even under the electric line and, therefore, the respondent was not entitled to any compensation on the ground of diminution in land value. 5. The evidence in the case consists of the oral evidence of PWs 1 and 2 and Ext.A1 document. C1 to C4 commission report and plan have been marked as Court Exhibits. 6. After considering the evidence on record, the CRP.980/06 : 3 : court below found that the respondent was entitled to a total amount of Rs.2,37,520/- as enhanced compensation with interest thereon at the rate of 6% per annum from 05.05.2003, the date of cutting of the trees, till the date of payment or the date of deposit of the amount in Court with notice to the respondent. The order of the District Judge is challenged in the above revision. 7. I have heard learned counsel for the K.S.E.B. in detail. There was no representation for the respondent. 8. According to the learned counsel for the appellant, the court below went wrong in reducing the annuity in respect of the trees cut and removed from 10% to 5%. According to the counsel, the respondent has not produced any evidence to substantiate the claim for enhanced compensation that was made. In the absence of any evidence, according to the counsel, the court below seriously went wrong in awarding enhanced compensation. It is the further contention of the counsel that the amount that has been granted for diminution in CRP.980/06 : 4 : land value was also without justification. It is contended that no documents were produced to show the land value in the particular area. Therefore, it is pointed out that the court below had granted the compensation without any basis. 9. I have gone through the records of the case. I have anxiously considered the contentions of the counsel for the appellant. 10. The point that arises for consideration here is: Whether the court below was right in awarding the amount of compensation that has been ordered to be paid? 11. At the instance of the respondent, a Commission was taken out from the court and the Advocate Commissioner, who inspected the property, conducted a test tapping of the remaining trees that were available in the property. On the basis of the test tapping, the Commissioner has submitted a report, which CRP.980/06 : 5 : is marked as Ext.C1. However, the court below has not relied on the report of the Commissioner. The court below found that though PW1 had claimed that each of the trees cut and removed used to give a yield of 1000 Kgs. of rubber sheets per year, besides dry rubber, his evidence could not be relied on as the sole basis for granting enhanced compensation. Though PW1 had admitted that the company was maintaining documents showing the yield that was obtained from the rubber trees, such documents were not produced before the court. Therefore, the best evidence that could have proved the case of the respondent was withheld from the court. Since the best evidence was not produced, the court below held that no enhanced compensation as claimed by the respondent could be granted. However, the court found that the compensation that was calculated by the appellant was not done in accordance with the principles laid down by the Full Bench decision of this Court reported in 2000 (1) KLT 542 (FB) [Kumba CRP.980/06 : 6 : Amma Vs. K.S.E.B.]. The court, therefore, recalculated the compensation that was actually due to the respondent, applying the annuity from each tree at the rate of 5%, as laid down by the Full Bench. The procedure adopted by the court below in recalculating the compensation in the light of the Full Bench decision is attacked by the counsel for the appellant. According to the counsel, in the absence of any evidence on the side of the respondent to show that the valuation adopted by the K.S.E.B. was wrong, the court was not justified in recalculating the compensation amount. According to the counsel, the court below also went wrong in adopting 5% annuity in recalculating the compensation. The counsel also relies on the decision of the Honourable Supreme Court reported in 2007 (3) KLT 1 (K.S.E.B. Vs. Livisha). However, the Honourable Supreme Court has not held in the above decision that the principles formulated by the Full Bench were not correct, as contended by the counsel. What has been held is only that other relevant factors, CRP.980/06 : 7 : which are discernible from the fact situation of each case, should be given due credit and consideration while fixing the rate of return in each particular case. The dictum laid down by the Supreme Court, therefore, does not militate against the dictum of the Full Bench decision in any manner. Therefore, there was nothing wrong in the court below applying the principle of fixing the annual return at 5%, in accordance with the principles laid down by the Full Bench. Thus, as per the three Tables contained in the judgment, the court below found that the respondent was entitled to an enhanced compensation of Rs.34,020/- as additional compensation. 12. Therefore, it can be seen that actually no enhanced compensation was granted by the court below. What the court below has done is only to correct the mistakes committed in calculating the compensation. Thus, the compensation granted is now calculated in accordance with the principles laid down in the Full Bench decision referred to above; I do not find any reason CRP.980/06 : 8 : to interfere with the said finding of the court below. 13. Regarding the question of granting compensation for diminution in land value caused by the drawing of the electric line, the court below found that there was no acceptable document showing the market value of the lands in the locality. Though PW1 has deposed that the land value in the locality was Rs.15,000/- per cent, there was no evidence to substantiate the said statement. The Advocate Commissioner has assessed the land value at Rs.4,000/-. The court did not accept even the said amount but, fixed the land value at Rs.2,500/- per cent. Considering the fact that the land was dry land and part of a rubber estate, it cannot be said that the land value fixed is excessive or exorbitant. It is trite that in the matter of awarding compensation in such cases, an element of guess work has necessary to be employed. The only rider is that such guess work should not be excessive. In the present case, I do not think that the element of guess CRP.980/06 : 9 : work adopted by the court below is excessive in any manner. 14. Having fixed the land value at Rs.2,500/- per cent, the court below has found that the percentage of diminution in land value was only 20%. The court below took note of the fact that though the land, over which the 33 KV electric line was drawn, was unfit for rubber cultivation, seasonal crops like pineapple, banana, etc. could be cultivated on such land. Further, the land was not acquired and the respondent continued to be the owner of the land. The percentage of diminution fixed by the court below is perfectly reasonable and can be described only as being on the lower side, considering the value of rubber estates and the prevailing price of rubber. On the basis of the above inputs, the total compensation that has been awarded by the court below is only Rs.2,03,500/-. It is also worth noticing that the appellant has not let in any evidence to show that the correct value of lands in the locality was lower than what was fixed by CRP.980/06 : 10 : the court below. In view of the above, I find that the compensation granted by the court below is reasonable and does not call for any interference in exercise of the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure. In view of the above, the Civil Revision Petition is dismissed, confirming the order dated 22.03.2006 of the District Court, Kozhikode in O.P.No.559/2004. In the circumstances of the case, there will be no order as to costs. Sd/- (K. SURENDRA MOHAN, JUDGE) aks // True Copy // P.A. To Judge