KERALA STATE ELECTRICITY BOARD. REP. BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM THIRUVANANTHAPURAM Vs. S. PUSHPA KUMARI RESIDING AT CHARUVILAKATHU VEEDU, ALAMKUZHI URIYACODE P.O.

JUDGEMENT

(1.) THE Kerala State Electricity Board is in revision before this Court challenging the enhancement of compensation granted by the lower court under Section 16(2) and 10(D) of the Indian Telegraph Act 1885 read with Section 42 of the Electricity Supply Act, 1957. The claimant before the court below in O.P.(Ele) No. 103/1997 alleged that she was the owner in possession and enjoyment of 1 acre of land in Sy. Nos. 1279/1 and 1278/1 of Perumkulam Village. For the purpose of drawing a 110 KV line through the said property, yielding trees were felled from the property. The petitioner aggrieved by the meagre compensation granted, filed the petition before the lower court for enhanced compensation with respect to the value of the trees felled. The petitioner received only Rs. 10,743/ - and before the lower court claimed that she is actually entitled to Rs. 11,42,957/ - as compensation. The petitioner was examined as PW1 and she claimed that 88 rubber trees were cut and removed. Exts. P1 to P5 were marked. Commissioner's report was marked as Ext. C1. Though the claim of the petitioner was that 88 rubber trees were cut; Ext. P2, the mahazar and the valuation statement showed otherwise. The discrepancy in the valuation statement and the tree cut mahazar as well as the tree cutting notice were found to be glaring by the lower court. It was also admitted by RW1, who was examined on behalf of the Board. However, but for pointing out such discrepancy the lower court found that there was absolutely no material to arrive at an actual determination of the number of trees cut.

(2.) THE court below prepared a list of each of the trees cut and computed the average net return per annum using multiplier from the Parks valuation table. The compensation payable to each of the yielding trees were assessed on that basis. The expense required for maintenance of the trees were also deducted. Such elaborate computation was made in the absence of any other material evidence. The general assessment made computing the yield per tree resulted in an enhanced compensation of Rs. 36,898.25. The said figure arrived at by the lower court on facts cannot be said to be unreasonable or excessive. The enhancement granted by the lower court cannot be assailed and the order of the lower court to that extent is not liable to be interfered with. Considering all the attendant circumstances including the tree cutting mahazar, valuation statement and the commissioner's report, it was found that adoption of 5% annuity for assessment purpose would be perfectly valid. The decision reported in Kumba Amma v. Kerala State Electricity Board (2000 (1) KLT 542) upholding adoption of 5% annuity has been over ruled by the Supreme Court in State of Kerala Vs. Livisha : 2007(6) SCC 792. However, the Supreme Court has laid down that though the fixed percentage as laid down by Kumba Amma is not to be taken, the facts and circumstances of each case has to be looked into while giving enhanced compensation. Even considering the dictum laid down by the Supreme Court in Livisha, the issue of compensation has to be considered with reference to the facts and circumstances of each case. Looking at the entire facts and circumstances of the case, this Court is of the opinion that the fixation of land value at Rs. 2,500/ - as also the enhanced compensation fixed at 44,855.25/ -with interest at the rate of 7% granted by the court below is adequate and reasonable. The determination of the extent cannot at all be assailed. The adoption of 30% of diminution in land value cannot also said to be unreasonably high.