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Kerala State Electricity Board Vs. C.G. Narayanan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. Nos. 732 to 734 of 1972
Judge
Reported inAIR1973Ker144
ActsTelegraph Act, 1885 - Sections 16(3); Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantKerala State Electricity Board
RespondentC.G. Narayanan
Appellant Advocate V. Narayana Menon,; V. Sankara Menon and; A.N. Kuttan
Respondent Advocate T.S. Venkiteswara Iyer, P.K. Balasubramanyan and P.E. Narayanaswamy
Cases ReferredElectricity Board v. Tharakan
Excerpt:
.....of civil procedure, 1908 - whether court entitled to interfere in revision with order passed by district judge determining compensation payable under telegraph act read with electricity act - section 16 (3) enables any disputing party to apply before district judge - statute does not provide for procedure which must be followed by district judge in discharge of his function in determining compensation payable - district judge to function not as persona designata but in judicial capacity - order passed by district judge is final - court of district judge subordinate to court in which revision filed - held, revision petition maintainable under section 115. - - 4. though this court considered revision petitions like these previously the question of maintainability of such revisions..........those three applications were considered jointly and a consolidated order was passed by the district judge and in this court also i am considering all these together in this order.2. these applications were filed before the district judge. trichur. for compensation under section 16 of the telegraph act 1885 read with section 51. electricity act 1910. for supply of electricity electric lines were taken over the property involved in these cases by the electricity board who is the respondent in all the three applications. according to the petitioner, who is the same in all the applications, on account of taking electric lines over his property 25 cocoa-nut trees have been cut from it and he has suffered damage on account of it. he also claimed damages for the diminution of the value.....
Judgment:
ORDER

G. Viswanatha Iyer, J.

1. These three revision petitions arise out of three applications, O. P. Nos. 76/70. 77/70 and 78/70 on the file of the District Court Trichur. Those three applications were considered jointly and a consolidated order was passed by the District Judge and in this Court also I am considering all these together in this order.

2. These applications were filed before the District Judge. Trichur. for compensation under Section 16 of the Telegraph Act 1885 read with Section 51. Electricity Act 1910. For supply of electricity electric lines were taken over the property involved in these cases by the Electricity Board who is the respondent in all the three applications. According to the petitioner, who is the same in all the applications, on account of taking electric lines over his property 25 cocoa-nut trees have been cut from it and he has suffered damage on account of it. He also claimed damages for the diminution of the value of the portion of the property underneath the electric lines. Again he also claimed damages for the loss of one cent of land, rendered useless by the construction of a tower in it. As stated earlier, the learned District Judge, Trichur considered these claims and determined the compensation to be paid to the applicant in all the three applications. Aggrieved by that the Kerala Electricity Board has filed these three revision petitions.

3. Two points arise for consideration in this case. One is whether this Court is entitled to interfere in revision with the order passed by the District Judge determining the compensation payable under the Telegraph Act read with the Electricity Act. The second question is whether the determination of compensation made by the District Judge is legally sustainable. As regards the first question the respondent's counsel refer-red me to sub-section (3) of Section 16 of the Telegraph Act which runs as follows:--

'Section 16 (3). If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10, Clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.'

and submitted that the District Judge is to act in these matters as a persona designata rather than in a purely judicial capacity. His further submission was that as the District Judge is only a persona designata in these matters his order cannot be revised under Section 115. Civil P. C. as he is not acting as a Court in the discharge of his duties in disposing of these applications. According to the revision petitioner, the District Judge is required to act only as a Court and not as a persona designata in considering these applications end that will be clear from the scope of the various provisions of the Telegraph Act relating to the determination and apportionment of compensation by the District Judge.

4. Though this Court considered revision petitions like these previously the question of maintainability of such revisions is not seen raised or decided by this Court (See Electricity Board v. Thomas, 1961 Ker LT 238 = (AIR 1961 Ker 237) and Electricity Board v. Tharakan. 1068 Ker LT 493). This does not mean that it cannot be raised now or decided. So I shall proceed to consider the question.

5. The District Judge, when that expression is used in a Central Act means, as per the General Clauses Act 1837 the Judge of a principal Civil Court of original jurisdiction other than the High Court in the exercise of its original civil jurisdiction unless there is anything repugnant in the context. Ordinarily he functions as a Judge of the principal Civil Court of original jurisdiction. He has not been appointed under any provision of the Electricity Act. or the Telegraph Act as a Tribunal to decide this question. There is nothing particular in sub-section (3) of Section 16 also to suggest that the District Judge is intended to act as otherwise than in a judicial capacity when determining the amount of compensation. The matter that he is called upon to decide is a matter relating to the compensation for the infringement of a civil right, namely, compensation for, civil trespass that has been committed under the cover of the statute, viz., the Telegraph Act. It is not a case where he is called upon to decide special matters like election disputes or assessment of taxes which stand upon an entirely different footing. A determination of the compensation for the damage caused for civil trespass is a matter that comes up ordinarily before a Civil Court for adjudication. Again, though Section 16 (3) enables any disputing party to apply before the District Judge, the statute does not provide for the procedure which must be followed by the District Judge in the discharge of his function in determining the compensation payable. This can only be because the matter has been referred to him not as a persona designata but as a Court and when the matter is referred for determination to a Court with no further provision the necessary implication is that the Court will determine the matters as a Court. Its jurisdiction is only enlarged. All the incidence of such jurisdiction including right of appeal from its decision remain the same unless there is some provision to the contrary in the statute itself. So from all these, the intention of the Legislature is clear that the District Judge is called upon to act not as a persona designata but only as a Court. This intention of the legislature is further made clear by the provisions contained in sub-sections (4) and (5) of Section 16 and also Section 34. Sub-section (4) provides that the telegraph authority must deposit the amount in dispute to the 'Court of the District Judge' and the District Judge must adjudicate the dispute, as regards the rights of the persons who claim the amount or the persons to whom the amount must be apportioned. This clearly shows that the District Judge referred to in sub-section (4) is to function not as persona designata but in a judicial capacity. Again, sub-section (5) provides that orders passed under sub-sections (3) and (4) by the District Judge shall be final. But for this finality in the light of the fact that the matter is being decided by the Court the ordinary right of appeal and second appeal may be available to the aggrieved party. The Legislature did not want that.

6. Lastly a reference to Section 34 shows that if the chief Judge of the Presidency Small Cause Court is entertaining the applications under Section 16 (3) read with Section 34 (1) the fees payable on such application must be the fees payable under the Court-fees Act 1870 for such application before the District Judge. This also shows that the application before the District Judge is to be considered by him not as a persona designata but in this judicial capacity, So. according to me. the District Judge functions in these matters in his judicial capacity as a District Court and that Court being subordinate to this Court, a revision under Section 115. Civil P. C. will lie, I am supported in this conclusion by a decision reported in Abdul Aziz v. Punjab Government. (AIR 1942 Lah 186) where on a similar question being raised, their Lordships of the Lahore High Court took the view that the District Judge is to act in his judicial capacity and not as a persona designata in these matters. I respectfully agree with the reasoning in that case and hold that the revision petition is maintainable under Section 115, Civil P. C. before this Court. The decision of the Supreme Court in Collector Varanasi v. Gauri Shanker. (AIR 1968 SC 384) and the decision of this Court in Vareed v. Mary. 1968 Ker LT 583 = (AIR 1969 Ker 103) (FB) are not of any help to the respondent on this question and do not in any way compel me to arrive at a different conclusion on this question.

7. The second point that has to be considered is whether the determination of compensation for the damages caused by drawing electric lines over the property of the respondent has been properly made. It has been found that 25 trees have been cut. of which 20 trees had reached the hearing stage at the time they were cut. For determining the compensation of these trees and for other matters a commission was issued by the Court below and his report has been marked as Ext. C1. According to the commissioner, when he visited the spot he found trees between the ages of 6 to 8 years in the property in a fairly good condition. As the trees for which compensation is claimed had already been cut before the commissioner visited the spot the commissioner could not note the particulars of these trees or whether they had become productive. So, what he did was to assume that, the trees that have been cut were of the same age as those that now remain in the property and on that basis to proceed to determine the income which the trees cut and removed would have fetched. According to him, the income will be 25 to 30 nuts and he also stated that the valuation will have to be fixed on this basis. The commissioner was examined as P. W. 2 and nothing has been brought out in his examination or cross-examination to show that the assessment made by him is wrong in any way or that the income that he has estimated for these trees is not the income for the whole year but only for a particular crop. Though P. W. 1 stated that the average net income of these trees will be between 120 and 130 nuts per tree he has not produced any record or other evidence to show that he has been obtaining the income from the other trees that now remain at this rate per year. So, his interested testimony cannot be acted upon. The lower Court also did not rely on his deposition. The lower Court has simply without any basis found that the commissioner's assessment can only be for a particular cropping and not for the whole year and on the basis that annually there will be six croppings mul-tiplied the number found by the commissioner by six times and fixed the income, at 150 nuts per tree Per year and determined the compensation payable accordingly. As stated earlier, this conclusion of the lower Court is not warranted by any evidence in this case. So I come to the conclusion that the lower Court has clearly gone wrong in finding the net yield of the tree per year. In the absence of other materials accepting the commissioner's assessment of the yield per year at 30 nuts net and calculating the value of those 30 nuts at the rate of Rs 540/- per 1000. each tree would have fetched annually Rs. 16.20p. The Court below has estimated the further bearing period of these trees as 68 vears and nothing has been stated before me to come to a different conclusion. So. adopting the principle laid down in the case Electricity Board v. Thomas, 1961 Ker LT 238 = (AIR 1961 Ker 237) which was followed in Electricity Board v. Tharakan (1968 Ker LT 493) this Rupees 16.20p. will be like an annuity which gives a return at 6% per annum for 68 years. The present worth of that annuity is arrived at by multiplying this net income by 16.35 times on the basis of the table contained in Parks Valuations. 1970 Edn., page 295. On that basis the com-pensation payable per tree will be Rupees 264.87 which figure I round up to Rs. 265/-.

8. Though the revision petitioner questioned the basis of determination of the compensation payable for diminution in value on account of drawing electric lines over the property and also questioned the correctness of the value of one cent of land rendered useless by construction of a tower in the property. I do not think that any interference is called for on that account.

9. In the result. In modification of the orders passed by the Court below the following will be the compensation payable to the applicant in the three cases.

(a) The claim made in O. P. No. 767 70 is for 5 yielding cocoanut trees and the compensation regarding the bund, the tower arid the diminution in value. On the finding mentioned above the total compensation payable in this behalf is Rs. 2,047.10 out of which the petitioner has been paid Rs. 60/- by the Department. The balance of Rs. 1.987.10 will be paid by the Department and the petitioner will be entitled to realise the same in execution of the order passed herein with interest at 6% per annum from 2-5-1970.

(b) In O. P. No. 77/70 the petitioner, is entitled to be awarded the value of 6. yielding cocoanut trees and the value of' the bund. The value of 6 cocoanut trees is Rs. 1590.00 and the value of the bund is Rs. 50.16. Therefore the total is Rs. 1640.16 out of which the petitioner has been paid already Rs. 72/-. The balance of Rs. 1.568.16 will be Paid by the department and the petitioner is entitled to recover the same from the respondent In execution of the order passed herein with interest at 6% from 2-5-1970,'

(c) In O. P. No. 78/70 the petitioner Is entitled to the value of 5 cocoanut trees at the rate of Rs. 265/- per tree and 5 cocoanut trees at the rate of Rs. 15/-and also the value of the bund. The amount due thereon is Rs. 2,712.32 out of which the petitioner has been paid Rs. 148/-. The balance of Rs. 2.564.32 will be paid by the respondent to the petitioner and on failure to do so the petitioner will be entitled to recover the same from the respondent with interest at 6% per annum,

10. The three revision petitions are allowed as above and in other respects dismissed. The parties shall bear their costs.


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