IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 CRP.NO. 93 OF 2007() -------------------- {OP(ELE.) NO.64/2004 OF THE ADDITIONAL DISTRICT JUDGE, THODUPUZHA} .................... REVN. PETITIONER(S): RESPONDENT. -------------------------------- KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THODUPUZHA. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENT(S): PETITIONER. -------------------------- DEVASIA, S/O.DEVASIA, VATHALLOOR HOUSE THULASIPPARA KARA, ERATTAYAR, KALKOONTHAL VILLAGE, UDUMBANCHOLA TALUK. ADV. SRI.S.K.MURALEEDHARA KAIMAL THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP.NO. 93 OF 2007 ::3 :: ORDER ON I.A.No.269/07 IN CRP.NO. 93 OF 2007 DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 02.3.2010. JUDGE sk/- //true copy// P.S. To Judge. S.S.SATHEESACHANDRAN, J. ---------------------------------------------------- C.R.P.No.93 of 2007 --------------------------------------------------- Dated this the 2 nd day of March, 2010 O R D E R Revision is directed against the order of the learned Additional District Judge, Thodupuzha granting enhanced compensation to the claimant in O.P.(Ele) No.64/04 towards loss and damage sustained by him on account of the drawing of overhead lines through his property. 2. Revision petitioner herein the Kerala State Electricity Board (hereinafter referred to as 'the Board'), for the purpose of drawing 66 KV line, cut and removed some yielding and also non-yielding trees from the property of the claimant. The Board assessed and paid a sum of Rs.63,295/- as compensation. Dissatisfied with the compensation awarded and paid as inadequate and unreasonable, the claimant preferred the above C.R.P.No.93 of 2007 :: 2 :: petition under Sections 10 and 16 of the Indian Telegraphs Act and Section 51 of the Indian Electricity Act seeking enhanced compensation. 3. The Board resisted that application contending that adequate and reasonable compensation had been paid. 4. In the enquiry for the claim for enhanced compensation, claimant was examined as PW.1 and Exts.A1 to A8 were exhibited on his side. An advocate commissioner, after conducting local inspection, prepared and filed Ext.C1 report. On the side of the respondents a copy of the detailed valuation statement was exhibited as Ext.B1. The learned District Judge, after appreciating the materials produced and hearing the counsel on both sides, re-assessed the compensation payable following the guidelines enunciated in Kumba Amma v. K.S.E.B. {2000(1) K.L.T. 542}. Admittedly, the Board had C.R.P.No.93 of 2007 :: 3 :: assessed the compensation fixing annuity return at 10% which has been found to be not a correct and proper method in the above reported case. Value of the agricultural products was also re-determined by the court with reference to the evidence of the agricultural officer, CW.1. and the documents produced by the relevant authorities showing the price hike of such products during the relevant period. On re-assessment of the compensation, the learned District Judge found that the claimant is entitled to enhanced compensation of Rs.1,61,993/- over and above the sum awarded by the Board. The enhanced compensation as determined was awarded with interest at 7.5% per annum from the date of cutting of the trees till the date of realisation. The Board was also directed to pay compensation at 9% on the sum already paid - Rs.63,295/- from the date of the cutting of the trees till the payment. The order passed by the court C.R.P.No.93 of 2007 :: 4 :: below awarding sums as indicated above to the claimant is challenged in the revision. 5. I heard the learned counsel. 6. Compensation fixed by the court below is excessive and unreasonable and re-assessment of the same for various agricultural products over and above what has been awarded by the Board was made without application of mind and also on incomplete data is the submission of the learned counsel for the Board. The main grievance canvassed by the learned counsel is over the deductions made by the court, after accepting the yield calculated by the Board with respect to the agricultural products. The Board has adopted uniform percentage of 43.75% in respect of the agricultural products which included arecanut, coconut, cocoa, coffee, rubber etc. and also other items. Differing from the percentage of deduction adopted by the Board, C.R.P.No.93 of 2007 :: 5 :: the court below has followed a different yardstick taking separate percentage for each item varying from 25% to 40%, but that was done without any scientific data, is the submission made by the learned counsel. 7. Compensation has been paid in the present case only towards the trees cut and removed both yielding and non-yielding for the purpose of drawing overhead lines. Though the claimant was entitled to seek compensation towards injurious affection of land on account of the diminution of land value by the drawing of the line, it is seen, no such claim is raised or adjudicated. The number of trees of various types cut and removed from the property of the claimant is not in dispute. So far as the modification made by the court in assessing the compensation payable with respect to 5% annuity return, no serious challenge was canvassed by the learned counsel for the Board, other than pointing out that the C.R.P.No.93 of 2007 :: 6 :: principle enunciated in Kumba Amma v. K.S.E.B. {2000(1) K.L.T. 542} has not been approved by the Apex Court in K.S.E.B. v. Livisha and others {2007(3) K.L.T. 1}. At any rate, as the only question involved in the case is determination of compensation payable towards the tree cutting alone from the property of the claimant, I find that the principle followed by the court below, when Kumba Amma's case {2000(1) K.L.T. 542} was holding the field, need not be interfered with, in the light of the latter decision rendered by the Apex Court. So far as the price fixed for each agricultural product, it is seen, the court below has relied on Exts.A1 to A8, publications by the Government Agencies showing the price of such products as published in the official gazette. Nothing has been brought to my notice that the adoption of price shown under material has caused any prejudice. So, the limited question is with respect to the C.R.P.No.93 of 2007 :: 7 :: percentage of deduction over the yield on the agricultural products adopted by the court below differing from the percentage of deduction followed by the Board. The learned counsel for the Board has not brought to my notice any authority that the adoption of uniform percentage of 43.75 percentage for all agricultural products as followed by it was based on any scientific data. Needless to point out, the percentage of deduction relating to maintenance cost, profits etc. depend upon various factors. If the claimant was directly carrying on agricultural activities in his property, maintenance expenses to be met by him no doubt will be much less. The fertility of the land will also be another factor in determining what should be the percentage to be met towards such maintenance for agricultural activities carried out in his property. Since such relevant factors depend upon various imponderables, in the absence of C.R.P.No.93 of 2007 :: 8 :: convincing materials enabling the court to fix a percentage of deduction with precision, undoubtedly, a certain bit of arbitrariness is unavoidable in fixing such deduction. I find, the Board has fixed a uniform percentage of 43.75% arbitrarily without any scientific data. On the basis of the materials placed before the court especially when it had the added advantage of having the expert evidence from an agricultural officer and with reference to Exts.A1 to A8, the learned District Judge has fixed the percentage of deduction in respect of each agricultural product to determine the compensation payable. In doing so, the court has differed from the uniform fixation made by the Board is no ground that the learned District Judge has erred in fixing the percentage of deduction. On the other hand, it has to be held, in the absence of any circumstances indicating that the percentage of deduction had been made unreasonable, C.R.P.No.93 of 2007 :: 9 :: the learned District Judge was correct in fixing such deductions. 8. After going through the order passed by the learned District Judge, I find, the re-assessment of the compensation has been made following sound principles. There is no scope for interference over such orders in exercise of the revisional jurisdiction vested with this court. Revision lacks merits, and is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//