Karnataka High Court

Executive Engineer vs Kariyamma on 6 January, 2021

Author: S.G.Pandit

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 06TH DAY OF JANUARY 2021

                        BEFORE

          THE HON'BLE MR.JUSTICE S.G.PANDIT

        WRIT PETITION NO.44503/2014 (GM-KEB)

BETWEEN:

  1. EXECUTIVE ENGINEER
     BRUHATH KAMAGARI VIBHAGA,
     K.P.T.C.L,
     R.HANUMANTHAPPA BUILDING,
     P.B.ROAD, DAVANAGERE-577516.

  2. ASSISTANT EXECUTIVE ENGINEER
     BRUHATH KAMAGARI VIBHAGA,
     SUB DIVISION-1,
     KSRTC DEPOT ROAD, KPTCL,
     CHITRADURGA-577511.
                                       ...PETITIONERS

(BY SMT. ADITI GURJER, ADV. FOR
 SRI.JOSEPH ANTHONY, ADV.)

AND:

KARIYAMMA
W/O OBALESH,
AGED ABOUT 35 YEARS,
OCC: AGRICULTURE,
R/O C.N.MAALIGE VILLAGE,
HIRIYURU TALUK,
CHITRADURGA DISTRICT.
                                      ...RESPONDENT

(R1 SERVED AND UNREPRESENTED)
                                     2

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER IN MISC.NO.49/2013 DATED 07.01.2014, ON THE FILE
OF PROCEEDING OFFICER, LEARNED ADDL. DISTRICT AND
SESSION JUDGE, CHITRADURGA, THE COPY OF THE
JUDGMENT AND AWARD PRODUCED HEREWITH AND MARKED
AS ANNX-A.

     THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:-

                               ORDER

The petitioner-Karnataka Power Transmission

Corporation Limited is before this Court under Articles 226

and 227 of the Constitution of India, assailing the judgment

dated 01.07.2014 in Miscellaneous No.49/2013 on the file of

the Additional District and Sessions Judge, Chitradurga by

which, the respondent is awarded compensation of

Rs.57,325/- with interest at the rate of 6% p.a., taking

diminutive value of the land at 50% of the market value of the

land.

2. It is not in dispute that the respondent is the owner in

possession of land bearing R.S.No.13/P3 to an extent of 5

acres situated at Adiraalu, Imangala Hobli, Hiriyur Taluk,

Chitradurga District. It is also not in dispute that the

petitioner-Corporation drew electricity line of 400 KV high

tension wire through respondent's land. The respondent

preferred petition under Section 16(3) of the Indian

Telegraphs Act, 1885 claiming compensation. The

respondent-landlord contended that the land had bore well

and she was growing Kanakambara, Coconut, Arecanut,

Banana, Sunflower, Jawar, Ragi, Maize, Groundnut, Bengal

Gram, Onion and cotton crops by which, she was getting

income of Rs.2.00 lakhs per acre. Due to drawing of high

tension wire, value of the land has diminished and she is not

in a position to get the same income which she was earning

earlier.

3. The petitioners-Corporation appeared before the trial

Court and contested the petition by filing objections. It is

stated in the objections that the respondent-landlord has

received compensation and there is no provision for awarding

compensation for diminutive value of the land. It is also

contended that respondent's land is not near to the City and

the value of the land is less. Further it is contended that land

is not acquired and possession remains with the respondent.

4. The respondent-landlord in order to prove his case

examined herself as P.W.1 and got marked 3 documents as

Ex.P1 to Ex.P3. The petitioners/Corporation had not lead

any evidence, but filed their memo of calculation as per

Ex.R1.

5. Based on the material on record, the learned District

Judge awarded total compensation of Rs.57,825/- with

interest at the rate of 6% p.a. adopting 50% diminutive value.

Aggrieved by the said judgment, the petitioner-Corporation is

before this Court in this writ petition.

6. Heard Miss.Aditi Gurjer, learned counsel for Sri.Joseph

Anthony, learned counsel for the petitioners. Even though

the respondent is served with court notice, she remained

absent.

7. Learned counsel for the petitioner strenuously contends

that the learned District Judge committed an error in

adopting 50% diminutive value of the land for awarding

compensation. Further, the learned counsel would submit

that the trial Judge committed an error in taking the land

value at Rs.1,875/- per gunta for which there is no basis. It

is also submitted that the land of the respondent is not

acquired nor taken possession. The high tension wire passes

through the land measuring 61.68 guntas only. Since the

possession of the land remains with the respondent, it is

submitted that the respondent-landlord would not be entitled

for compensation. Thus, prays for allowing the petition.

8. Having heard the learned counsel for the petitioners and

on perusal of the writ petition papers as well as trial Court

records, the only point which falls for consideration is as to

whether the learned District Judge is justified in taking 50%

of the market value as diminutive value for the purpose of

calculating compensation.

9. Answer to the above point would be in the negative for

the following reasons:

It is not in dispute that the respondent is the owner in

possession of the agricultural land bearing R.S.No.13/p3 to

an extent of 5 acres situated at Adiraalu village, Imangala

Hobli, Hiriyur Taluk, Chitradurga District. The petitioner-

Corporation has drawn 400KV high tension wire over the

agricultural land of the respondent-landlord. It is also not in

dispute that the petitioners-Corporation itself has filed memo

of calculation as per Annexure-R1 indicating that high

tension wire has passed through the land of respondent-

landlord to an extent of 61.68 guntas. It is true that

possession of the land remains with the respondent-landlord,

but the landlord would be deprived of growing trees like,

areca nut, coconut and teak trees where high tension wire

passes through. Since the respondent would be deprived of

growing trees in the land over which high tension wire passes

through, value of the land gets diminished. But, it is to be

noticed that the petitioner could grow certain other crops in

the said land. But, the respondent-landlord would not be

deprived of cultivating the land in its entirety.

10. The respondent-landlord examined himself as P.W.1

and marked Ex.P1 to Ex.P3. Ex.P1 and Ex.P2 are Record of

Rights and Ex.P3 is the statement issued by the Sub-

Registrar, Hiriyur indicating the market value of the lands.

Ex.P3 would indicate the land value of various types of land.

Respondent's land is irrigated through pump set. The value

of the lands irrigated through Bore well and pump set is

shown Rs.75,000/- per acre. Learned District Judge while

calculating the land value of the petitioner has considered

Ex.P3 and has come to the conclusion that the land values at

Rs.1,875/- per gunta which is proper and correct. I do not

find any error in valuing the land at Rs.1,875/- per gunta

based on Ex.P3.

11. The learned trial Judge has committed an error in

taking 50% of the market value as diminutive value which

requires to be reduced to 30%. As stated above, the

potentiality of the land has not diminished. The respondent-

landlord could grow crops except the trees like areca nut,

coconut and teak trees. This Court, in a decision reported in

(2014) 6 KLJ 185 in the case of THE EXECUTIVE ENGINEER,

KARNATAKA POWER TRANSMISSION CORPORATION

LIMITED, CHITRADURGA AND ANOTHER v/s DODDAKKA at

paragraph 24 has held as follows:

"24. As regards the diminution value of the land falling within the corridor, the learned District Judge having determined the market value of the land has awarded 50% of the same as diminution value. It cannot be disputed that though the farmer is not capable of growing trees underneath the corridor, he is not totally deprived of utilizing the land for carrying out other agricultural operations. He is entitled to grow other crops, which may not affect the high voltage transmission line. Though the farmer is deprived of the opportunity to utilize the land to its full potential and grow horticulture crops, particularly consisting of trees and other luxurious shrubs, he is capable of utilizing the land.

The title of the land continues to vest in him. It is, no doubt, true that his access to the land and use of the same by erecting any pole, shed or any other installation will be restricted. In a case like this where high voltage transmission line is drawn across the land, utilization of the other portion of the land is also affected. Therefore, all these factors have to be taken into consideration before determining the diminution in the land value on account of drawing of high voltage electrical line. If these relevant factors are borne in mind, particularly having regard to the photographs produced and the evidence adduced by the claimant-landowner, I find that 30% of the market value of the area affected shall have to be paid as diminution value of the land to the farmer."

12. The respondent in her evidence has specifically stated

that she was growing Onion, Groundnut, Cotton, Sunflower,

Corn, Jawar etc. Drawing of high tension line over the

respondent's land would not deprive the respondent from

growing the above said agricultural crops. But the

respondent would not be in a position to grow horticultural

crops particularly trees. The respondent landlord would be

deprived of using his land to its fullest potentiality. Hence,

there would be diminution in value of land to some extent

and not to the extent of 50% as assessed by Trial Court. By

following the above decision, I deem it appropriate to hold

that taking diminutive value of the land at 50% of the market