KSEB Vs. P H HORMESE THARAKAN
HIGH COURT OF KERALA
P.H. HORMESE THARAKAN
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(1.) These civil revision petitions raise a common question and they are therefore disposed of by this common order. Applications were filed before the District Judge, Alleppy, by the respondents in all the civil revision petitions under S.16(3) of the Indian Telegraph Act (13 of 1885) read with S.51 of the Indian Electricity Act (9 of 1910) claiming enhanced compensation payable under S.10(d) of the Indian Telegraph Act (13 of 1885). The compensation claimed is for the cutting and removal of bearing coconut trees from the properties belonging to the respondents in the revision petitions. The enhancement claimed was granted by the learned District Judge by the decisions sought to be revised.
(2.) It was agreed by the parties before the learned Judge that the compensation has to be awarded in the light of the principles stated by this Court in Electricity Board v. Thomas 1961 KLT 238 . It is also agreed that the respondents before this Court are entitled to compensation for the loss of bearing coconut trees. In the ruling cited above the principle for fixing compensation for bearing coconut trees is stated thus:
"We therefore think, that apart from other damage which may have been caused, it is a safe rule to lay down, that compensation payable on the destruction of a bearing tree, is the present value of an annuity which gives a return at the rate of 5 per cent per annum. Apart from lack of practice and familiarity, we do not conceive any serious difficulty in applying the rule as stated above, to fruit bearing trees such as coconut, arecanut, jack trees etc. With respect to rubber trees and pepper wines, though for ascertaining the value of improvement and for the purposes of the Land Acquisition Act, a different rule of capitalisation is in vogue, none of the counsel pointed out any fallacy in applying the rule of present worth at 5 per cent per annum. The duration of productive life being smaller, in their case, the multiple for capitalisation wilt be proportionately lower".
In all these cases the net yield of the bearing trees has been ascertained by the learned District Judge and the finding was not disputed by the parties in the revision petitions. The main dispute in the lower court and in this Court centres round the age of coconut trees. The learned District Judge on an appreciation of evidence adduced in the case came to the conclusion that bearing trees in all these cases were in properties situated in Shertallai Taluk and would be fully bearing for a period of 80 years from the 10th year onwards and the annuity was fixed on that basis. This finding of the learned District Judge was disputed by the revision petitioner in all the revision petitions. P.W. 2 in the Electricity Act Petition 2 of 1966 which is the subject matter of C. R. P. 394 of 1967 is the Agricultural Extension Officer employed in the State, working at Thykattussery block where the properties from which the bearing trees were removed are situate. He is a B Sc., (Hons.) in agriculture. His evidence was accepted as evidence in all the other cases also with the consent of the parties therein. He has stated with reference to the trees of Thykattusseri Block that the productive life in the locality of a coconut tree is 100 years. The mahazar prepared before the trees were cut by the authorities also shows that these trees were healthy. The evidence of P. W 2 has been accepted by the lower court. There is no counter evidence. The learned District Judge would observe thus:
"P. W. 2 is an expert. He has special knowledge about the conditions prevailing in Thykattussery. He is a disinterested witness."
The several statements of P. W. 2 have not been challenged in the cross examination. The evidence of D. W. 1 examined on behalf of the Electricity Board does not throw any light at all on this aspect. The criticism by the revision petitioner's counsel against the evidence of P. W. 2 was that there is no reference in his evidence about the bearing coconut trees in dispute. That criticism is not correct. The evidence of P. W. 2 shows that he is speaking with reference to the coconut trees located in properties in Thykattussery Village in Shertallai Taluk. It has not been established by the revision petitioner that the disputed trees were unhealthy and different from a normal tree in Thykattussery Block. I do not find therefore any reason at all to interfere with the decision of the lower court when the evidence is only one way to support the finding of the learned Judge. If the finding regarding the age of the tree is not to be disturbed, then the compensation awarded does not require any interference. The civil revision petitions are therefore groundless. They are dismissed but without costs. A copy of this order will be placed in each of the revision petitions.;
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