Kerala High Court
Kerala State Electricity Board vs Aboobacker on 19 January, 2012
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
THURSDAY, THE 19TH DAY OF JANUARY 2012/29TH POUSHA 1933
CRP.No. 399 of 2008 ( )
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OP(ELE.)75/2003 of ADDL. DISTRICT COURT (ADHOC)-II, ERNAKULAM
REVISION PETITIONER(S)/RESPONDENT:
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KERALA STATE ELECTRICITY BOARD, REP; BY
THE SECRETARTY, KERALA STATE ELECTRICITY BOARD
THIRUVANANTHAPURAM.
BY ADVS.PULIKOOL ABUBACKER, SC, KSEB
RESPONDENT(S)/PETITIONER:
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ABOOBACKER, S/O.AMMU, KIZHAKKE ANJIKATHU
HOUSE, MECHANICAL ROAD, COCHIN UNIVERSITY PO.
THRIKKARA NORTH VILLAGE, KALAMASSERY-682 022.
R,R1 BY SRI.JOHN JOSEPH(ROY)
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 19-01-2012, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
K.T.SANKARAN, J.
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C.R.P.No.399 of 2008
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Dated this the 19th day of January, 2012
O R D E R
The Revision is filed by the Kerala State Electricity Board, aggrieved by the order dated 19th November 2007 in O.P. (Electricity) No.75 of 2003 on the file of the court of the Additional District Judge (Adhoc - II), Ernakulam.
2. For drawing Kalamassery - Aroor 110 KV Electric line, yielding and non-yielding trees were cut from the property belonging to the respondent. The Board granted a compensation of ` 17,550/- to the respondent/claimant. Dissatisfied with the amount awarded, the respondent filed the Original Petition before the court below claiming compensation of ` 12.5 lakhs. The court below awarded enhanced compensation of ` 42,646.31/-, in addition to the amount already awarded by the Board.
3. No amount was awarded by the Board as CRP 399/2008 2 compensation for diminution of land value. The property belonging to the claimant has an extent of 24.5 cents. Five electric lines were drawn over the property of the petitioner. The Commissioner appointed in the case reported that 2/3 of the entire property is affected by the drawal of the electricity line and only 1/3 portion is left out. There is a three bed room house in the property. The property is bound on the north and east by Municipal road which leads to the Seaport - Airport road. The Commissioner's report would also indicate that the property of the claimant is situated within a radius of 2.5 kms. of Bharat Matha Engineering College, Model Engineering College and Cardinal Higher Secondary School. The Commissioner's report also indicates that Hindustan Machine Tools is situated about 1.5 kms. away from the property. The Cochin University campus is at a distance of half a kilometre from the property. The court below fixed the land value at Rs.6,000/- per cent of land. It was also held that 30% of the land value could be awarded as diminution of land value. On that basis, a sum of Rs.29,100/- was granted as compensation for diminution of land value. The court below took note of the decision of the Supreme Court in CRP 399/2008 3 K.S.E.B. vs. Livisha (2007(3) KLT 1 (SC)) and fixed the compensation in terms of the principles laid down therein. There is no illegality or impropriety in the compensation awarded by the court below on this count. The amount awarded is really low.
4. It is to be noted that the claimant adduced oral and documentary evidence, but no oral evidence was adduced on the side of the Kerala State Electricity Board. The Commissioner's report and sketch furnish all the relevant data for fixing the compensation. In spite of the fact that the Commissioner stated that 2/3 of the area was injuriously affected, the court below has taken diminution only at 30% of the land value, against the claim for 100%.
5. Regarding the fruit bearing coconut trees, arecanut trees and yielding pepper vine, the court below held that the Board was not justified in taking 10% interest for fixing compensation on annuity basis. The court below relied on the Larger Bench decision of the High Court in Kumba Amma vs. KSEB (2000 (1) KLT 542).
CRP 399/2008 4
6. The learned counsel for the petitioner submitted that in view of the decision of the Supreme Court in Livisha's case, the court below was not justified in relying on the decision in Kumba Amma's case.
7. In K.S.E.B. v. Livisha ((2007) 6 SCC 792 = 2007(3) KLT 1 (SC)), the Supreme Court referred to the decision of the larger Bench of the High Court in Kumba Amma v. Kerala State Electricity Board (2000 (1) KLT 542) and the earlier decisions of the Kerala High Court. The Supreme Court held thus:
"10. The situs of the land, the distance between the high voltage electricity line laid there over, the extent of the line thereon as also the fact as to whether the high voltage line passes over a small track of land or through the middle of the land and other similar relevant factors in our opinion would be determinative. The value of the land would also be a relevant factor. The owner of the land furthermore, in a given situation may lose his substantive right to use the property for the purpose for which the same was meant to be used.
CRP 399/2008 5
11. So far as the compensation in relation to fruit bearing trees are concerned the same would also depend upon the facts and circumstances of each case.
12. We may, incidentally, refer to a recent decision of this Court in Land Acquisition Officer, A.P. v. Kamandana Ramakrishna Rao & Anr. reported in 2007 AIR SCW 1145 wherein claim on yield basis has been held to be relevant for determining the amount of compensation payable under the Land Acquisition Act, same principle has been reiterated in Kapur Singh Mistry v. Financial Commission & Revenue Secretary to Govt. of Punjab & Ors. 1995 Supp. (2) SCC 635, State of Haryana v. Gurcharan Singh & Anr. (1995 Supp. (2) SCC 637) para.4, and Airports Authority of India v. Satyagopal Roy & Ors. (2002) 3 SCC 527. In Airport Authority (supra), it was held:-
"14. Hence, in our view, there was no reason for the High Court not to follow the decision rendered by this Court in Gurucharan Singh's case and determine the compensation payable to the respondents on the basis of the yield from the trees by applying 8 years' multiplier. In this view of the matter, in our view, the High CRP 399/2008 6 Court committed error apparent in awarding compensation adopting the multiplier of 18."
8. In Kumba Amma v. Kerala State Electricity Board (2000 (1) KLT 542), the Larger Bench held thus:
"44. Next, we have to consider what should be the rate of return to be applied in this case. As mentioned earlier, regarding the rate of return, the only contention raised by the petitioners is that it should be 5% as held in 1961 KLT 238 and not the higher rate as ordered in 1981 KLT 646. Even though reliance was placed by the petitioners on AIR 1988 AP 89 in support of their contention that the principle applied in 1981 KLT 646 was not correct, it is not contended by the petitioners before us that in their case, the rate of return as assessed by Jagannadha Rao, J. in AIR 1988 AP 89 should be applied. The dispute in this case arose when trees standing in petitioners' property were cut down on 9.9.1980. The respondents have not made available before us any material to show that the real rate of interest in 1980 was something different from 5%. Their only contention based on 1981 KLT 646 is that what is relevant is the prevalent rate of interest which was 10%. This contention we have already rejected, as CRP 399/2008 7 such rate does not take into account the factor of inflation. Under these circumstances, we hold that the rate of interest to be applied in the present case is 5%. We hasten to add that we should not be understood as having laid down 5% as the real rate of interest for subsequent period. The rate of interest applicable in India has been held as 4% by Jagannadha Rao, J. in AIR 1988 AP 89. 11 years have lapsed after the above judgment. Whether it should be the same rate of return that has to be applied for the period before and after the above judgment or whether a higher or lower rate, is a matter to be decided in appropriate cases where relevant data is available. Till such time, the Board will adopt 5% as rate of return. But, we make it clear that cases finally concluded by decisions of the Court will not be reopened."
9. To a query by the Court, the learned counsel appearing for the Board submitted that after the decision in Kumba Amma's case, the Board has not fixed any rate for the purpose of fixing compensation on annuity basis. However, from the various orders passed in the claims, it is seen that the Board has uniformly adopted 10% even after the decision of the larger Bench in Kumba Amma's case. To that extent, it shows that the Board CRP 399/2008 8 never cared to follow the larger Bench decision in Kumba Amma's case.
10. In Kumba Amma v. Kerala State Electricity Board (2000 (1) KLT 542), the Larger Bench also noticed as to how the real rate of interest is to be computed and it was held thus:
"10. Now, we will consider what is meant by `real rate of interest' and its relevance in computation of compensation. Prof. Paul A. Samuelson defines `real interest rate' as the "money interest rate" minus "the percentage price rise". Thus, if the money rate is 9% and the annual price rise is 7%, then the true real rate of interest is 9 - 7 = 2%. (See Economics, by Paul A. Samuelson, 11th Edn. (International Student Edition) Page
566)."
While fixing 10% as the rate of interest, the Board has not taken into account the rate of interest prevailing and the percentage of inflation. In other words, there is no material to indicate that the Board applied its mind and fixed the rate of interest on the basis of the actual data available as on the date of tree cutting. On the other hand, the Board ritualistically followed 10% as the rate of CRP 399/2008 9 interest, even ignoring the larger Bench decision in Kumba Amma's case.
11. In the Monetary Policy Statement 2010-11 issued by the Reserve Bank of India, it is stated in paragraph 32 thus :
"32. Notwithstanding the current inflation scenario, it is important to recognise that in the last decade, the average inflation rate, measured both in terms of WPI and CPI, had moderated to about 5 per cent from the historical trend rate of about 7.5 per cent. Against this background, the conduct of monetary policy will continue to condition and contain perception of inflation in the range of 4.0-4.5 per cent. This will be in line with the medium-term objective of 3.0 per cent inflation consistent with India's broader integration into the global economy."
12. A learned single Judge of this Court, after referring to the decisions in Kumba Amma v. Kerala State Electricity Board (2000 (1) KLT 542) and K.S.E.B. v. Livisha ((2007) 6 SCC 792 = 2007(3) KLT 1 (SC)), held in C.R.P.No.892 of 2006 as follows: CRP 399/2008 10
"5. Perusing the impugned order, it is seen, the Board had assessed the compensation towards the value of trees cut and removed at 10% annuity and the court below taking note of the principles laid down in Kumba Amma v. Kerala State Electricity Board (2000 (1) KLT 542) passed by this Court, reassessed the compensation payable for fixing such compensation at 5% annuity. I find nothing in the decision rendered by the apex court in Livisha's case (supra) to hold that the assessment of the compensation following the principles laid down in Kumba Amma's case (supra) cannot be made applicable depending upon the facts and circumstances of the case. The apex court has held that compensation in relation to fruit bearing trees are concerned, the same would depend upon the facts and circumstances of each case. Of course in a case where it is shown that fixation of compensation at 5% annuity would cause prejudice or injury to any of the parties involved depending upon the facts and circumstances in the case, a different yardstick can be applied for. No such special circumstance is made out in the present case to hold that the principles laid down in Kumba Amma's case are inapplicable to the case...."
CRP 399/2008 11
The compensation fixed by the court below is just and reasonable. I do not find any ground to interfere with the well considered order passed by the court below. Accordingly, the Civil Revision Petition is dismissed.
K.T.SANKARAN JUDGE csl