IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.41783/2016 (GM – KEB) BETWEEN:
1. SUPERINTENDENT ENGINEER KARNATAKA POWER TRANSMISSION CORPORATION LTD., KOTHI THOPU ROAD, TUMKUR - 572102 2. THE EXECUTIVE ENGINEER (ELECTRICAL) KPTCL, MAJOR WORKS DEPARTMENT, KOTHI THOPU ROAD, TUMKUR - 572102 3. ASSISTANT EXECUTIVE ENGINEER (ELECTRICAL) NO.4., MAJOR WORKS DEPARTMENT K P T C L, KOTHI THOPU ROAD, TUMKUR - 572102 ... PETITIONERS (BY SMT.SHUBHA S, ADV.) AND BASAVARAJU S/O JUNJAIAH, 42 YEARS, LEKENAHALLI, GOLLARAHATTI, KASABA HOBLI, GUBBI TALUK – 572216 SINCE DECEASED REP. BY HIS LRS 1(A) SMT. MAHADEVAMMA W/O LATE SRI BASAVARAJU AGED ABOUT 42 YEARS 1(B) SRI JUNJE GOWDA S/O LATE SRI BASAVARAJU AGED ABOUT 25 YEARS 1(C) SMT. SAVITHA D/O LATE SRI BASAVARAJU AGED ABOUT 23 YEARS 1(D) SMT. NALINA D/O LATE SRI BASAVARAJU AGED ABOUT 21 YEARS ALL ARE R/AT LAKENAHALLI, GOLLARAHATTI, KASABA HOBLI, GUBBI TALUK, GUBBI-572216.
... RESPONDENTS (R1(A-D) SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 06.02.2015 IN MIS.NO.184/2013 PASED BY I ADDL. DISTRICT & SESSIONS JUDGE, TUMKUR AT ANNEX-A.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners have challenged the order dated 06.02.2016 in Misc.No.184/2013 passed by the 1st Additional District & Sessions Judge, Tumkur.
2. The respondent had filed the petition under Section 19 of the Electricity Act, 2003 r/w Section 13 of Indian Telegraph Act, 1885 as the owner of Sy.No.168/2 of Lakkenahally Village for enhancement of compensation awarded by the petitioners herein, for drawing 110/11 K.V. electric transmission line through the respondent’s land which resulted in cutting of number of fruit yielding and other trees. The learned District Judge after recording the evidence of the parties and hearing the arguments of both the parties, has proceeded to pass the impugned judgment and decree.
3. Being aggrieved, the petitioners are before this court challenging the quantum of compensation awarded by the learned District Judge.
4. The sole ground raised by the petitioners is regarding the cost of cultivation determined by the learned District Judge in respect of mango trees.
5. The learned counsel for the petitioners placing reliance on the order of this Court in the case of The Executive Engineer, KPTCL Vs. Doddakka1 submitted that the cost of cultivation for fruit bearing trees has to be determined at 30%. The standard cost of cultivation has to be taken up at 30% in the absence of any specific evidence let in by the parties on this aspect. Reliance is also placed on the order of this court in the case of KPTCL Vs. P.Lakakappa Swamy2 wherein the cost of cultivation for the mango trees has been determined at 30% .
6. Despite service of notice on the respondents, there is no representation.
7. Having heard the learned counsel for the petitioners and perusing the material on record, the only question that arises for consideration of this court is:
Whether the cost of cultivation of Rs.100/- per mango tree assessed by the learned 1 ILR 2015 Karnataka 677 2 LAWS (Karnataka) 2014-8-167 District Judge for the determination of compensation is justifiable?
8. In the case of Asst. Commissioner-cum- Land Acquisition Officer Vs. S.T.Pompanna Setty3 the Hon'ble Apex Court in the context of fruit bearing trees, observed that the ratio laid down in the case of State of Gujarat Vs. Rama Rana4 would not stricto sensu apply inasmuch as in fruit growing trees. The expenses would not be 50%. In Rama Rana, supra, the Hon'ble Apex Court deducted 50% towards cultivation expenses in respect of agricultural lands while determining the compensation awarded to the claimants.
9. The Cognate Bench of this court while analyzing the method to be adopted for valuing fruit bearing trees has collated the legal principles laid down 3 2005 9 scc 662 4 (1997)2 SCC 693 by the Hon’ble Apex Court in host of cases and the same is quoted hereunder:
“16. Now coming to the method to be adopted for valuing fruit bearing tree, the learned District Judge has taken the economic lifespan of the tree as 35 years and has multiplied the net amount derived as income from the tree by capitalising the income using 35 as multiplier. The Apex Court in the case of KERALA STATE ELECTRICITY BOARD Vs. C.P.SIVASANKARA MENON – 2009 AIR SCW 388, while referring to the earlier decision in KERALA STATE ELECTRICITY BOARD Vs. LIVISHA AND OTHERS –(2007) 6 SCC 792 has held that compensation payable to the land owners based on the yield from the tree ought to have been worked out by applying appropriate multiplier as was done in the case of STATE OF HARYANA Vs. GURCHARAN SINGH AND ANOTHER - 1995 Supp (2) SCC 637 and therefore remitted the matter for fresh consideration to the competent Court in respect of a similar matter arising from the State of Kerala.
17. In KERALA STATE ELECTRICITY BOARD Vs. LIVISHA AND OTHERS –(2007) 6 SCC 792, the Apex Court while considering the determination of compensation made based on the Judgment of Five Judges Bench of Kerala High Court in the matter of KOMATH KUMBA AMMA & OTHERS Vs. KERALA STATE ELECTRICITY BOARD -
2000(1) KLT 542 (FB) wherein it was held that the annuity thereof shall be calculated on the basis of 5% return and fixing the rate of diminution in the market value of the land at 50%, after referring to various Judgments rendered by the High Court of Kerala at different points of time taking different view in the matter, has observed in Paragraph 7 that the amount of compensation payable has to be determined keeping in view the purpose and object of the statute and there cannot be any fixed formula. The Apex Court has pointed out that a fixed formula for determining the amount of compensation although may make the task of the Land Acquisition Officer or the reference court easier but each case has to be decided on its own merit keeping in mind the purpose and object of the Act and the methodology laid down as guiding factor. In paragraph 10 to 12 of the Judgment in Livisha’s case, the Apex Court has observed as under:
“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 tract 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.
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. We may, incidentally, refer to a recent decision of this Court in Land Acquisition Officer Vs. Kamadana Ramakrishna Rao [(2007) 3 SCC 526: 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 Mistri Vs. Financial Commissioner & Revenue Secretary to Government of Punjab [1995 Supp (2) SCC 637], para 4 and Airports Authority of India Vs. Satyagopal Roy [(2002) 3 SCC 527]. In Airports Authority [(2002) 34 SCC 527] it was held: (SCC p.533, para 14) 4. Hence, in our view, there was no reason for the High Court not to follow the decision rendered by this Court in Gurcharan Singh case [1995 Supp (2) SCC 637] 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 Court committed error apparent in awarding compensation adopting the multiplier of 18.”
12. We are, therefore, of the opinion that the High Court should consider the matter afresh on the merit of each matter having regard to the fact situation obtaining therein. The impugned judgments, therefore, cannot be sustained. These are set aside accordingly. The matters are remitted to the High Court for consideration thereon afresh. The appeals are allowed. In the facts and circumstances of the case, there shall be no order as to costs.
18. It is thus evident that multiplier to be adopted will have to be same as multiplier adopted under the provisions of the Land Acquisition Act for determining the value of the trees. As regards the nature and quantum of compensation to which the farmer is entitled, measurement of the land, distance between high voltage electrical line laid over the same, extent of the line and also whether only a small tract of land is used or the line is drawn right through the middle of the land and such other similar factors would be determinative for deciding the quantum of compensation to be awarded. Yet another important observation made by the Apex Court in Paragraph 10 is that, the value of the land would also become relevant factor and in a given case, the owner of land may be deprived of using the land for the purpose for which the same was meant to be used.
19. If the principles laid down in the above Judgments are made applicable to the facts of the present case, it will emerge that the land in question, was used for growing coconut trees and the land is capable of being put to intensive cultivation for growing horticulture crops including for growing toll fruit bearing trees. Thus the best use for which the land can be put to is radically restricted thereby depriving the land owner from utilizing his land to its full potential to realize the maximum income and generate more profit. As is evident from the photographs produced by the respondent – farmer, the high voltage electrical line has been drawn across the land damaging not only the 14 coconut trees grown at the edge of the land, but also the land on either side of the corridor. Therefore, the corridor consisting of totally 18 meters, 9 meters on either side has to be treated as an area severely affected depriving the land owner of his right to grow trees or luxuriant shrubs. In fact, petitioners have treated this area only as affected area for the purpose of determining the compensation and also for assessing the value of the trees cut and removed. Even as per The Electricity Act, 2003, Section 68 provides for removal of shrubs, trees and other such growth if they are likely to affect overhead power lines. Therefore, the land owners are not entitled to grow any trees under the corridor area as the same will affect the transmission lines. Apart from this, having regard to the fact that the electrical transmission line has been drawn across the land, it will cause damage depriving the farmer of his efficient use of the other portion of the land. Therefore, the said factor also cannot be lost sight of. In the instant case, the learned District Judge has confined the amount of compensation to be awarded to the actual corridor area. Therefore, even proceeding on the said premise if the compensation were to be calculated, as rightly submitted by the counsel for the respondent, the best price payable for the coconut grown and the best yield which can be derived and the resultant income generated from the land ought to be taken for the purpose of determining the compensation.
23. Now coming to the income derived by the land owner from the coconut tree, the Senior Assistant Director of Horticulture, Zilla Panchayath, Hiriyur, has certified that the annual average yield of coconut per tree was 103, but the learned District Judge has taken the yield at 80, which is not borne out from any record. As the land comes under Hiriyur Taluk and the opinion of the Senior Assistant Director of Horticulture, is on record the yield of coconut per tree has to be taken as 103. Insofar as price is concerned, keeping in mind the price of coconut that has been assessed at Rs.8/- and deduction of 50% by the learned District Judge towards cultivation, I am of the view that there is no reason to upset the finding regarding the yield and the price as the same is based on evidence on record. Regarding cost of cultivation and other incidental expenses that the farmer has to incur to realize the said price per coconut, if the same is calculated at 30%, it would be just and appropriate.”
(emphasis supplied) 10. From the aforesaid ratio enunciated by the Hon’ble Courts, it is clear that there is no straight jacket formula to determine the cost of cultivation while arriving at the value of the fruit bearing trees. When the market value is determined on the basis of the yield from a tree or a plantation, the cost of cultivation which includes the incidental expenses which the farmer is required to incur to realize the price of the mangoes would be just and appropriate at 30%, as held by this court in the case of P.Lakkappa Swamy and also Doodakka, supra, more particularly in the absence of any specific evidence available on record on this aspect.
11. Considering the same, the determination of yield and price of the mango trees based on evidence being confirmed, the annual income of a tree would be 50 Kgs per tree x Rs.30 per kg i.e. Rs.1,500/-.
Deducting cost of cultivation of 30%, i.e., Rs.450/-, the net income would be Rs.1,050 per tree per year.
Applying the multiplier of 10 for 36 trees, the compensation would be Rs.1050 x 10 x 36 = Rs.3,78,000/-. The compensation awarded towards coconut plants remain undisputed i.e. Rs.3000 x 5 = Rs.15,000/-. Hence the respondent is entitled to the total compensation as follows:
1. Mango trees Rs.3,78,000/-
2. Coconut plants Rs. 15,000/-
Rs.3,93,000/-
12. Hence, the following ORDER The order passed by the learned District Judge is modified. The respondents/claimants are entitled for a total compensation of Rs.3,93,000/- (Rupees Three Lakhs Ninety Three thousand only) less the compensation already paid, with interest at 8% per annum payable from the date of drawing of electrical line till the payment.
Writ petition stands disposed of in terms of the above.
Sd/- JUDGE Dvr/PMR