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2005 DIGILAW 410 (KER)

Kerala State Electricity Board v. Philip Antony

2005-06-27

R.UDAYABHANU

body2005
Judgment :- The revision petitioner/respondent (K.S.E.B) in O.P.(Ele.)155/2001, the proceedings with respect to tree cutting compensation and under orders to pay additional compensation, has roundly indicted the decision alleging that the methodology chosen by the court and the enhanced compensation awarded is absolutely unjust and manifestly illegal and certainly to be interfered by this Court in revision. The total sum including the compensation awarded at the prelitigation phase would amount to Rs.32,508 with interest at 9% per annum from the date of cutting. It is pointed out that the amount of compensation arrived at is based on no materials and further no details are available or ascertainable from the order as to how such an amount is arrived at. 2. It is seen that the order of the court below is divided into two parts, the former part designated as 'preliminary award' and the subsequent segment as 'final award'. The preliminary award recites the pleadings as well as the points raised and the latter section i.e., the final award mentions a total sum as the compensation awarded. 3. The case of the petitioner/claimant was that the respondent for the purpose of drawing high tension Koothunkal-Panamkutty 110 K.V. power line cut and removed a number of improvements to clear the area underneath. The compensation assessed and awarded is neither full nor fair. There was considerable delay in the process of payment subsequent to the cutting but no interest was awarded. The price of the produce fixed is not reasonable. The multiplier adopted is not proper. The deduction on account of maintenance of trees and cultivation expenses are very high. Moreover, there is diminution in land value on account of the drawal of the overhead power line. A sum of Rs.75,000 was claimed as additional compensation. 4. The respondent has traversed the pleadings of the claimant, to the last details. According to the respondent, everything has been done threadbare and exactly in accord with law and reason. The charge of inordinate delay is denied and the liability to remit interest is refuted. 5. The court has raised a number of points for determination but has confined to mention, the price of arecanut as 50 paise per nut and cashew nut at Rs.30 per Kg. relying on the gazette notification with respect to the price of arecanut and on the basis of an earlier award (the number of the same is not mentioned). 5. The court has raised a number of points for determination but has confined to mention, the price of arecanut as 50 paise per nut and cashew nut at Rs.30 per Kg. relying on the gazette notification with respect to the price of arecanut and on the basis of an earlier award (the number of the same is not mentioned). The court has reduced the cost of agricultural operations to 35% regarding cultivation of arecanut and 25% with respect to other improvements. The deductions made by the Board in this regard was at the rate of 43.75% which appeared to be very high, it is observed. The rate of return to be applied is mentioned as 5% on the basis of the decision in Kumba Amma v. K.S.E.B 2000 (1) K.L.T. 542. There ends the preliminary award portion. There is no mention about the quantity of improvements or the nature of improvements, i.e., the age, the yield etc. or even as to the identity or the particular variety of the improvements. There is no discussion as to the details according to the petitioner or as to the particulars contained in the detailed valuation statement prepared by the officials of the K.S.E.B. The little discussion in the judgment is in an abstract form. 6. Then comes the final award on the basis of the statement stated to have been filed by the petitioner showing the amount that he is entitled to get as additional compensation on the basis of the findings recorded in the preliminary award, i.e., the rate of two items of produce, the percentage of the cost of agricultural operations and the 5% rate of return. There is just mention in the final award that both sides were heard and the statement has been accepted and the total compensation of Rs.32,058 has been, awarded, as if by sleight of hand. 7. The very contention of the petitioner/K.S.E.B. is that none of the particulars the Court based for the enhancement awarded is evident from the order. The details are indecipherable; the order is rather blunt and inscrutable as the face of a Sphinx. Really, it is. The basic trait of every judicial order is that it should be a speaking one. 7. The very contention of the petitioner/K.S.E.B. is that none of the particulars the Court based for the enhancement awarded is evident from the order. The details are indecipherable; the order is rather blunt and inscrutable as the face of a Sphinx. Really, it is. The basic trait of every judicial order is that it should be a speaking one. The cutting edge of the contention is that relegating the material particulars to be worked out behind the curtain in a Surreptitious and covert fashion leaving room for possible manipulations is not the procedure envisaged. Transparency cannot be forsaken. The Court is not entitled to short change institutionalized procedure. Senior officers of the hierarchy of the subordinate judiciary are designated and entrusted with the jurisdiction in view of the fact that public money is involved; and the same is not meant to be siphoned off recklessly. Essentially and totally the procedure contemplated in the O.P. is assessment of compensation and damages sustained on account of tree cutting due to the drawal of overhead power lines and the resultant diminution inutility of the surface of land. What is expected from the Court in the matter is independent assessment after considering the evidence adduced in the matter and not to pass the buck to the counsel representing the respective sides. The order pronounced should reflect the necessary details like the number of trees cut, the variety of the same, the age, yield, the finding as to the probable life span and the relevant annuity factor as contained in Parks table, [The annuity principle is the most suitable instrumentality with respect to calculation of tree cutting compensation as settled by precedents, viz. K.S.E. Board v. Marthoma Rubber Co. Ltd 1981 K.L.T. 646 Kumba Amma’s case (op.cit)] the details of calculation in brief as well as the short comings of the DVS prepared by the Electricity authorities, if any, failing which the revisional court and the parties themselves will be at a loss to understand the working of the mind of the Court without researching the case bundle. There is no provision in the statutes concerned or in the general law as to procedure that empower the Court to perform the assessment of compensation in two phases as 'preliminary award' and 'final award’. There is no provision in the statutes concerned or in the general law as to procedure that empower the Court to perform the assessment of compensation in two phases as 'preliminary award' and 'final award’. Just filing a statement by the petitioner and stating no objection by the counsel for the respondent and admitting and accepting the statement filed by the Court without mentioning the details of the same in the Judgment is downright unacceptable. The entire details would be before the Court in the tree cutting compensation matters unlike in the case of a suit for partition, suit on accounts or on mortgage, wherein the particulars would have to be gathered and worked out after the rights of the parties are thrashed out in the preliminary decree. What is required is only independent assessment, which is the bounden duty of the Court. The Courts below that are following the above multistage adjudication procedure is directed to stop the above practice and pronounce a single order containing the required particulars. The order under revision is set aside. The Court below is directed to reconsider the entire matter and pronounce a fresh order incorporating the requisite details. The matter is remitted back to the Court below. The parties shall appear before the Court on 16-7-2005.