IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 190 of 2008()
1. M.NANDAKUMAR, MITTATHULLIL HOUSE,
... Petitioner
2. M.VIJAYAKUMAR, MITTATHULLIL HOUSE,
3. M.SREEKUMAR, MITTATHULLIL HOUSE,
4. RAJAKUMAR @ RAJAGOPALAN,
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. DEPUTY CHIEF ENGINEER, KSE BOARD,
For Petitioner :SRI.C.S.AJITH PRAKASH
For Respondent :SRI.N.N.SUGUNAPALAN, SC,
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :14/10/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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C.R.P.Nos.190 AND 38 OF 2008
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Dated this the 14th day of October 2009
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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