Allowed

N.P. Varghese v. Power Grid Corporation of India Ltd.

Kerala HC4 Oct 2021CRP/517/2018

Case brief

AI extract

What is this about?

This revision petition challenged the quantum of compensation awarded for land loss due to high-tension electric lines. The Court held that executive guidelines do not curtail judicial discretion to award just compensation based on relevant factors like land situs and extent of injury.

What did the court decide?

CRP 517/2018 allowed; CRP 807/2018 dismissed; O.P. (Electricity) No. 29/2013 remanded for fresh consideration.

N.P. Varghese Vs Power Grid Corporation of India Ltd. — Property and Title | Kerala HC (2021)

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“CR”

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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MONDAY, THE 4^TH DAY OF OCTOBER 2021 / 12TH ASWINA, 1943

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CRP NO. 517 OF 2018

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OP (Electricity) No. 29/2013 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR, ERNAKULAM

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REVISION PETITIONER/S:

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1 N.P. VARGHESE AGED 75 YEARS S/O.PAULOSE, AGED 75 YEARS, NANGETH HOUSE, THENGODE POST, KAKKANADU, ERNAKULAM, PIN-682 030.

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2 MARY VARGHESE AGED 72 YEARS W/O.N.P.VARGHESE, AGED 72 YEARS, NANGETH HOUSE,THENGODE POST, KAKKANADU, ERNAKULAM, PIN682 030. BY ADV SRI.P.K.RAVISANKAR

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RESPONDENT/S:

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1 POWER GRID CORPORATION OF INDIA LTD. CONSTRUCTION AREA OFFICE, MAVELIPURAM COLONY, KAKKANAD, COCHIN-682 030.

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2 SPECIAL TAHSILDAR LA POWER GRID CORPORATION OF INDIA LTD., CHEVARAMBALAM, KOZHIKODE-17. BY ADVS. SRI.ROJO J.THURUTHIPARA GOVERNMENT PLEADER SRI.M.I.JOHNSON

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OTHER PRESENT:

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GP S.UNNIKRISHNAN; ADV. ROJO J.THURUTHIPARA FOR R1 IN CRP 517/18

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD

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ON 02.08.2021 ALONG WITH CRP 807/2018, THE COURT ON 04.10.2021

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DELIVERED THE FOLLOWING:

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CRP Nos.517 & 807 of 2018

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-2-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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MONDAY, THE 4^TH DAY OF OCTOBER 2021 / 12TH ASWINA, 1943

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CRP NO. 807 OF 2018

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OP (Electricity) 29/2013 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR, ERNAKULAM

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REVISION PETITIONER/S:

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THE POWER GRID CORPORATION OF INDIA LTD KAKKANAD, KOCHI-682 030, REP. BY ITS AUTHORIZED OFFICER, 400 KV SUBSTATION, VELLANIKKARA(P.O), MANNUTHY, THRISSUR DISTRICT. BY ADV ROJO J.THURUTHIPARA

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RESPONDENT/S:

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1 N.R.VARGHESE AGED 35 YEARS S/O.POULOSE, NANGETH HOUSE, THENGOD.P.O.-682 030, PATTIMATTOM VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM. 2 MARY VARGHESE AGED 72 YEARS W/O.N.R.VARGHESE, -DO-

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3 THE SPECIAL TAHSILDAR (LA) POWER GRID CORPORATION OF INDIA LTD., CHEVARAMBALAM, KOZHIKODE - 673 017. BY ADVS. SRI.P.K.RAVI SANKAR SRI.P.K.RAVISANKAR GOVERNMENT PLEADER

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02.08.2021 ALONG WITH CRP 517/2018, THE COURT ON 04.10.2021

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DELIVERED THE FOLLOWING:

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CRP Nos.517 & 807 of 2018

“CR”

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ORDER

Dated this the 04^th day of October, 2021

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The petitioners in CRP No.517 of 2018 had

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filed O.P.(Electricity) No.29 of 2013 before the Additional District Court, North Paravur, seeking enhanced compensation towards the value of yielding trees cut down from their property and for diminution in land value, consequent to the drawing of 400 KV High Tension electric lines through their property by the Power Grid Corporation of India. CRP No.807 of 2018 is filed by the Power Grid Corporation of India, aggrieved by the quantum of enhanced compensation awarded in O.P.(Electricity) No.29 of 2013. The essential facts, necessary for adjudicating the issues arising for consideration, are as under; [for convenience, the parties herein are referred to

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CRP Nos.517 & 807 of 2018

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as in O.P.(Electricity) No.29 of 2013].

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The petitioners are the owners of 21 Ares of

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landed property in Re-Sy.No.322/2 of Arakkappady Village. The first respondent had drawn 400 KV extra high tension electric transmission lines over the petitioners' property and had installed part of a huge tower and stay wire in the property. For clearing the corridor for the high tension line, valuable trees like coconut, arecanut, teak, jackfruit, mango and pepper vines were cut and removed. The first respondent paid only Rs.2,82,267/- as compensation towards the value of the trees and plants. The electric line was drawn through the middle of petitioners' property, rendering a major portion of the property useless. As a result, value of the land diminished drastically. As against the claim for enhanced compensation of Rs.2,16,22,947/- towards value of trees and diminution in land value, the

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CRP Nos.517 & 807 of 2018

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court below awarded only Rs.51,45,405/-.

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Sri.P.K.Ravi Sankar, learned Counsel for

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the petitioners put forth the following contentions;

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The land is situated in a semi-urban area and as per Ext.A2, the land value of nearby property as on 21.11.2007, was Rs.2,15,000/- per cent. The petitioners' property is situated 650 metres away from the property covered by Ext. A2. Electric lines were drawn over the petitioners' property in the year 2011. By that time the land value had increased manifold. Without considering these factors, the court below fixed the land value at the reduced rate of Rs.2,00,000/- per cent. Two

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pillars of the transmission tower are fixed inside the petitioners' property and the underground earth wire is also drawn through the property. This covers an area of 2.20 Ares. A further extent of 14.40 Ares is injuriously

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CRP Nos.517 & 807 of 2018

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affected by the drawing of electric line. The bifurcation of the property due to the drawing of

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the line had diminished the value of the unaffected portion also. As such, petitioner is entitled for 100% compensation for 2.20 Ares and partial compensation for the balance area. Even though the first respondent had admitted that the petitioners are entitled for 70% land value for the affected area, the court below erroneously fixed 50% towards diminution of land value and failed to grant 20% ex-gratia payment. The multiplier of 8 adopted, relying on the decision

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in KSEB v. Livisha and others [2007 (3) KLT 1

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(SC)] , is not correct and the court below should have taken 12 as the multiplier.

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Learned Counsel for the first respondent

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contended that the court below had committed gross illegality in entertaining the claim and awarding compensation. It is submitted that the

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CRP Nos.517 & 807 of 2018

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Government of India has, in consultation with the State Governments, issued guidelines dated 15.10.2015 for determining the compensation towards damages, as stipulated in Sections 67 and 68 of the Electricity Act, 2003 read with Sections 10 and 16 of the Indian Telegraph Act, 1885. According to the learned Counsel, the Central Government having issued the guidelines, compensation should be fixed accordingly. Relying on the decision in Power Grid Corporation of India Ltd v. Century Textiles and Industries Ltd

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and others [(2017) 5 SCC 143] , it is contended that even the Apex Court has approved the guidelines.

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In reply, learned Counsel for the petitioners contended that, neither the Central Government nor the State Government can fetter

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the power vested with the court to award just compensation. It is contended that under Section

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CRP Nos.517 & 807 of 2018

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16 of the Indian Telegraph Act, 1885, the District Judge is conferred with the jurisdiction to fix just compensation and the said power cannot be curtailed through a notification. In support of the contention, learned Counsel placed reliance on the decision of the Apex Court in B.

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Rajagopala Naidu v. STAT, Madras and others [AIR

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1964 SC 1573] , and the decisions of this Court in Hajee M.K. Cheria Mamoo and Co. v. The District

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Collector and another [1973 KLJ 795] and Bavasons Constructions Pvt Ltd v. State of Kerala and others [2007 (3) KLT 101] .

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A perusal of Ext.C1 commission report and C2 plan reveals that the petitioners' property is situated by the side of the PerumaniArakkeppady Panchayat Road and the property got bifurcated by the drawing of the High Tension electric line. The report also reveals that two supporting legs of the huge electric tower have

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CRP Nos.517 & 807 of 2018

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been erected and the earth wire drawn inside the petitioners' property. The Commissioner has reported that Annexure A2 property is situated at a distance of 650 metres from the petitioners' property. As rightly contended by the learned Counsel for the petitioners, the sale of Annexure A2 property was in the year 2007 and the property had fetched Rs.2,15,000/- per cent. Even though, electric line was drawn through petitioners’ property four years later, the court below fixed land value at the rate of Rs.2,00,000/- per cent, without stating any reason for the reduction.

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In the objection filed by the first respondent, reference is made to GO(Rt) No.581/2010/RD dated 04.02.2010 by which the Government brought out a compensation package, the relevant portion of which is extracted hereunder;

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“(i) The compensation for the damages caused

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CRP Nos.517 & 807 of 2018

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to each tower location shall be of 2 categories ie paddy field and garden land including rubber plantations and compensation shall be 40% and 70% respectively of the land price fixed by the District Collector.

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(ii) An ex-gratia payment @ 20% of the land

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value shall be paid for the land area covered under the conductors (from tip to tip of conductors) along the line in private lands,

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except in the existing corridor of KSEB used by PGCIL.”

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In the impugned order, only 50% is awarded as compensation towards diminution of land value. The Government having fixed 70% as compensation for diminution of land value for garden land, the court below should have considered that factor.

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Moreover, in Livisha , the Apex Court has held that the situs of the land, the distance between the high voltage electricity line laid there

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CRP Nos.517 & 807 of 2018

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over, the extent of the line thereon, as also the fact whether the high voltage line passes over a small track of land or through the middle of the land, as factors to be taken into consideration while fixing the compensation.

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As regards the contention based on the

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guidelines dated 15.10.2015, it is pertinent to note the guarantee under Article 300 A of the Constitution of India that, no person will be deprived of his property save by authority of law. The Electricity Board derives the power to draw electric lines through private land from provisions of the Electricity Act, 2003 and the Indian Telegraph Act, 1885. As per Section 16(3) of the Indian Telegraph Act, any dispute concerning sufficiency of compensation has to be determined by the District Judge within whose jurisdiction the property is situated. If the contention of the learned Counsel for the first

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CRP Nos.517 & 807 of 2018

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respondent is accepted, the District Judge, will

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have to determine the compensation strictly in accordance with the procedure prescribed in the guidelines. That will definitely curtail the discretion vested with the court to decide the full compensation payable under Section 10(d) of the Indian Telegraph Act. Section 10(d) reads as under;

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“10(d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.”

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The question whether judicial discretion vested with a judicial/quasi-judicial authority can be curtailed by the executive was considered

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in Rajagopala Naidu . Therein the Honourable

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CRP Nos.517 & 807 of 2018

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Supreme Court has succinctly answered the question as under;

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“It is of the essence of fair and objective administration of law that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. If the exercise of discretion conferred on a quasi-judicial tribunal is controlled by any such direction, that forges fetters on the exercise of quasi-judicial authority and the presence of such fetters would make the exercise of such authority completely inconsistent with the well-accepted notion of judicial process. It is true that law can regulate the exercise of judicial powers. It may indicate by specific provisions on what matters the tribunals constituted by it should adjudicate. It may by specific provisions lay down the principles which have to be followed by the Tribunals in dealing with the said matters. The scope of the jurisdiction of the Tribunals constituted by statute can well be regulated by the statute and principles for guidance of the said tribunals may also be prescribed subject of course to the inevitable requirement that these provisions do not contravene the fundamental rights guaranteed by the Constitution. But what law and the provisions of law may legitimately do cannot be permitted to be done by administrative or executive orders.”

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The legal position was reiterated by this Court

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in M.K. Cheria Mamoo and Co. v. The District Collector, Calicut & another [1973 KHC 359] and

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Bavasons Constructions Pvt Ltd v. State of Kerala

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CRP Nos.517 & 807 of 2018

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and others [2007 (2) KHC 409] . The contention

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against the above settled legal position is based on the decision of the Apex Court in Power Grid Corpn. of India Ltd (supra) . In order to deal with the contention, it is essential to extract the following paragraph of the judgment;

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“28. These are sufficient reasons to

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allow Civil Appeal No. 10951 of 2016 preferred by the Power Grid by setting aside those directions. Ordered accordingly. We make it clear that if the writ petitioner feels that it is entitled to any compensation, the appropriate course of action is to file a suit before the District Judge concerned for this purpose. It would also be apt to point out at this stage that the Central Government has framed guidelines dated 15-10-2015 in this behalf which inter alia provide that the issue of compensation may be resolved having regard to the mode and manner of assessment of compensation as per the said guidelines. Therefore, it would always be open to the writ petitioner to avail the remedy as per the said

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CRP Nos.517 & 807 of 2018

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guidelines.”

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(underlining supplied)

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Thus, the Apex Court has acknowledged the filing of a suit before the District Judge as the appropriate action and has only left open the option of availing the remedy as per the guidelines. The said observation cannot be treated as approval or affirmation of the guidelines or of having laid down any proposition that the District Judge is bound to fix the compensation in accordance with the guidelines. Therefore, the guidelines does not and cannot interdict the court from fixing compensation based on relevant factors like situs of the land, extent of the land affected injuriously, diminution in land value etc. The trial court having failed to consider these relevant factors and having fixed the land value at a lesser rate than the market value, the impugned order is set aside.

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CRP Nos.517 & 807 of 2018

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As far as the compensation towards

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value of the trees cut, the court below having followed the procedure prescribed in Livisha, I find no reason to interfere with the compensation fixed under that head.

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In the result, CRP No.517 of 2018 is allowed

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and CRP.No.807 of 2018 is dismissed. O.P. (Electricity) No.29 of 2013 of the Additional District Court, North Paravur is remanded for fresh consideration. The original petition being of the year 2013, the court below shall take earnest efforts to dispose of the matter at the earliest.

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Sd/-

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V.G.ARUN JUDGE

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Scl/

N.P. Varghese v. Power Grid Corporation of India Ltd.

Case brief

What is this about?

What did the court decide?

N.P. Varghese v. Power Grid Corporation of India Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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