The revision petitioner is the petitioner in the O.P. No.105/04 on the District Court, Kozhikode. The petitioner filed the above petition under Sections 10 and 16 of the Indian Telegraph Act and Section 51 of the Indian Electricity Act read with Section 42 of the Indian Electricity Supply Act, claiming compensation for the damages sustained to him by the cutting and removal of trees and diminution of land value caused by the drawing of 110 KV electric line over his property. Initially the respondent passed an Award granting an amount of Rs.31,526/- for the damages sustained by the cutting and removal of trees. No amount had been granted for the diminution of land value caused by the drawing of line. Feeling aggrieved, the petitioner preferred the above O.P. claiming an additional compensation of Rs.12,42,474/-. But the court below passed the impugned order granting an amount of Rs.15,800/- to the petitioner with interest thereon at 6% per annum from the date of cutting of the trees till the date of final payment. This Revision Petition is filed challenging the said order on the ground that the additional compensation given by the court below is inadequate and too low.
2. The learned counsel for the revision petitioner advanced arguments in support of the grounds raised in this Memorandum of Revision and contended that the additional compensation fixed by the court below is inadequate and disproportionate with the actual loss suffered by the petitioner. According to him, 22 trees were cut and removed from the property of the petitioner and out of them 9 were yielding coconut trees. The Authorised Officer who prepared the mahazar has not correctly determined the age of the trees and their annual yielding. Similarly, the court below went wrong by not awarding any amount towards diminution of land value. The court below without determining the compensation for each item granted an amount of Rs.15,800/- in lump sum as enhanced compensation. The court below ought to have determined the compensation for the cutting and removal of trees on the basis of the age of each tree and its annual yielding. Similarly, the court below ought to have determined the diminution of land value on the basis of the extent of the affected area and the percentage of diminution of land value.
3. In view of the rival contentions, the short question that arises for consideration is, whether there is any illegality or impropriety in the determination of compensation made by the court below?
4. There is no dispute with regard to the fact that the trees mentioned in Ext.A1 were cut and removed from the property of the petitioner. As per Ext.A2, 22 trees were cut and removed and out of that 9 were yielding coconut trees. But the court below has not made any attempt to determine the compensation on the basis of the age of the trees and the annual yield from each tree. The court below rightly referred to the proposition laid down by the Apex Court in K.S.E.B. Vs. Livisha (2007 (3) KLT 1(SC)) and Airports Authority of India Vs. Satyagopal Roy and Others [(2002) 3 SCC 527). But, curiously the court below has not applied the proposition laid down in the said decisions; instead, granted 50% increase in the total compensation as lump sum enhancement. I find that the court below went wrong by granting an amount, though a little, in lump sum as compensation without any basis.
5. Coming to the claim for diminution of land value, it is seen that no evidence had been adduced by the petitioner to show the nature and lie of electric line drawn and the total extent of the affected area. Injurious affection to the immovable property by the drawing of the line is an admitted fact and the same is upheld by the Apex Court reported in Livisha's case (supra). In the above decision, the Apex Court held as follows:-
“10. The situs of the land, the distance between the high voltage electricity line laid thereover, 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.”
But in the instance case, there is no material to apply the above proposition. It is not possible to determine the compensation for diminution of land value without getting the total extent of the property and nature and lie of electric line drawn by the KSEB.
It is also incumbent on the petitioner to prove the current market value prevailing in that locality at the time of cutting and removal of the trees. But, nothing in evidence on record to determine the additional compensation.
6. The learned counsel for the revision petitioner prayed for an opportunity to adduce evidence. In the absence of evidence, I am inclined to grant an opportunity to the petitioner to adduce evidence as regards the diminution of land value caused by the drawing of electric lines, for the interest of justice.
7. Consequently, the impugned order under challenge is set aside and the matter is remitted back to the court below for fresh consideration, after affording an opportunity to the parties to adduce further evidence. However, the court below is directed to pass order afresh within a period of six months from today.
Sd/-
(K.HARILAL, JUDGE)
okb.