Kerala High Court
Kerala State Electricity Board vs Paily, *[Died], S/O.Ouseph on 3 September, 2024
Author: T.R.Ravi
Bench: T.R.Ravi
AS NOS. 688 OF 2000 & 59 OF 2001
1
2024:KER:68350
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
AS NO. 688 OF 2000
AGAINST THE JUDGMENT AND DECREE DATED 14.01.2000 IN OS NO.107
OF 1994 OF SUB COURT, THODUPUZHA
APPELLANT/DEFENDANTS 1 TO 4:
1 KERALA STATE ELECTRICITY BOARD
REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVANAM,
PATTOM. THIRUVANANTHAPURAM-4
2 THE CHIEF ENGINEER (CIVIL)
K.S.E.BOARD, LOWER PERIYAR PROJECT,
VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM -4
3 THE EXECUTIVE ENGINEER ,
K.S.E.BOARD, LOWER PERIYAR PROJECT CIRCLE,
VAZHATHOPE, IDUKKI DISTRICT.
4 THE PROJECT MANAGER,
LOWER PERIYAR HYDRO ELECTRIC PROJECT,
VAZHATHOPE, IDUKKI COLONY P.O.
BY ADVS.
SHRI.B.PREMOD, SC, KERALA STATE ELECTRICITY BOARD
P.SANTHALINGAM (SR.)
SRI.R.K.VENU NAYAR, SC, KSEB
RESPONDENTS/PLAINTIFF & 5TH DEFENDANT:
*1 PAILY (DIED)
S/O.OUSEPH
ANJILIKUZHIYIL HOUSE, THATTEKANNI KARA,
KANJIKUZHY VILLAGE, THODUPUZHA TALUK.
AS NOS. 688 OF 2000 & 59 OF 2001
2
2024:KER:68350
2 THE MANAGER,
HINDUSTAN CONSTRUCTION COMPANY LTD. AUDIT NO.III
THATTEKANNI P.O., IDUKKI DISTRICT.
*3 ADDL.R3 JOLLY PAILY
ANJUILIKUZHIYIL HOUSE, THATTEKANNI KARA, KANJIKUZHI
VILLAGE, THODUPUZHA TAUK, PIN - 685 606.
[ADDITIONAL RESPONDENT NO.3 IS IMPLEADED AS THE LEGAL
HEIR OF DECEASED 1ST RESPONDENT IN I.A. NO. 2/2023 VIDE
ORDER DATED 04/10/2023].
BY ADV ESM.KABEER
THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 03.09.2024,
ALONG WITH AS.59/2001, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
AS NOS. 688 OF 2000 & 59 OF 2001
3
2024:KER:68350
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
AS NO. 59 OF 2001
AGAINST THE JUDGMENT AND DECREE DATED 14.01.2000 IN OS NO.117
OF 1994 OF SUB COURT, THODUPUZHA
APPELLANTS/DEFENDANTS:
1 THE KERALA STATE ELECTRICITY BOARD
REPRESENTED BY ITS SECRETARY, VAIDYUTHI
BHAVANAM,PATTOM,THIRUVANANTHAPURAM - 4, PIN - 695 004
2 THE CHIEF ENGINEER (CIVIL)
LOWER PERIYAR PROJECT, VAIDYUTHI BHAVANAM,
PATTOM, THIRUVANANTHAPURAM-4., PIN - 695 004
3 THE EXECUTIVE ENGINEER
K.S.E.BOARD, LOWER PERIYAR PROJECT CIRCLE,
VAZHATHOPPE, IDUKKI DISTRICT.
4 THE PROJECT MANAGER,
LOWER PERIYAR HYDRO ELECTRIC PROJECT,
VAZHATHOPPE, IDUKKI COLONY P.O.
BY ADVS.
SHRI.T.G.RAJENDRAN SC FOR K.S.E.B.
SRI.P.SANTHALINGAM, SC, KSEB
SRI.S.SHARAN,SC,K.S.E.BOARD
P.SANTHALINGAM (SR.)
SRI.A.SUDHI VASUDEVAN, SC, KSEB
SHRI.B.PREMOD, SC, KERALA STATE ELECTRICITY BOARD
AS NOS. 688 OF 2000 & 59 OF 2001
4
2024:KER:68350
RESPONDENTS/PLAINTIFF & 5TH DEFENDANT:
1 JOLLY
S/O PAILY, ANJILIKUZHIYIL HOUSE,
THATTEKKANNI KARA, KANJIKUZHY VILLAGE,
THODUPUZHA TALUK.
2 THE MANAGER, HINDUSTAN CONSTRUCTION COMPANY LTD.
HINDUSTAN CONSTRUCTION COMPANY LTD, AUDIT NO.III,
THATTEKKANNI P.O., IDUKKI DISTRICT.
BY ADV SHRI.ESM.KABEER
THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 03.09.2024,
ALONG WITH AS.688/2000, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
AS NOS. 688 OF 2000 & 59 OF 2001
5
2024:KER:68350
T.R.RAVI.J
-------------------------------------------------------
AS Nos.688 of 2000 & 59 of 2001
--------------------------------------------------------
Dated this the 03rd day of September, 2024
JUDGMENT
These two appeals are preferred by the
defendants in a suit for compensation for damages
caused to their property. The plaintiffs in the suit are
father and son respectively. The suit is filed on the
allegation that the plaintiffs are owners of lands which
are in their exclusive possession and the properties are
well improved and planted with high yielding varieties
of rubber, pepper vine, cocoa, coconut and arecanut
trees. It is further stated that the seasonal crops such as
pineapple, plantain, ginger, etc. were also planted in the
property. A residential building is also present in the
property belonging to the plaintiff in OS No. 107/1994.
According to the plaintiffs, the defendants 2, 3 and 4
AS NOS. 688 OF 2000 & 59 OF 2001
2024:KER:68350
who are the Kerala State Electricity Board and its officers
had undertaken the lower Periyar Project and the 5 th
defended was a licensed contractor of the 1 st defendant.
Construction of the tunnel and other works were being
carried on for which rocks were blasted. According to
the plaintiffs, large quantity of tunnel muck was dumped
in the work site and in the canal and due to heavy rains
on 05/10/1991, the tunnel muck got washed off and
deposited in the 'thodu' resulting in blockage of the flow
of water. It is stated that the flow of the 'thodu' was
altered, resulting in the flooding of the properties of the
plaintiffs and several others, causing huge loss and
damage to the improvements in the property. According
to the plaintiffs, all the improvements were destroyed
and washed away. The plaintiffs had approached the
Minister of Electricity to the Kerala Government and the
defendants seeking compensation. It is stated that on the
AS NOS. 688 OF 2000 & 59 OF 2001
2024:KER:68350
request dated 21.12.1991 from the Project Manager,
KSEB, the RDO, Idukki had inspected the site and
assessed damages. The plaintiffs had filed OP. No.
4463/1992 before this Court seeking directions to the
defendants for disbursement of the damages. It is stated
that as per directions issued by this Court, steps were
taken by the Project Manager and intimated to the
plaintiffs as per letter dated 27/05/1992. It is stated that
a detailed valuation statement was prepared and an
amount of Rs. 4,91,555/- was assessed as damages.
According to the plaintiffs, the plaintiff in
OS.No.107/1994 was found entitled to a sum of
Rs.1,77,369/- and the plaintiff in OS.No.117/1994 was
found to be entitled to Rs.1,55,595/-. As per the detailed
valuation statement, the plaintiff has given details of the
loss that was caused. However, it is seen that the plaint
was filed without even annexing a property schedule and
AS NOS. 688 OF 2000 & 59 OF 2001
2024:KER:68350
there is absolutely nothing to link the damages that are
stated to have been caused to the specific property of
the plaintiffs.
2. The defendants 1 to 4 filed a joint written
statement stating that the suit is not maintainable. It is
contended that the plaintiff was an encroacher of forest
land and was in illegal occupation of the area within the
project area and they are liable to be summarily evicted
by the State Government. It is contended that the
encroachment was after 01.01.1997 and being an illegal
occupier, they are not entitled to claim any amount as
damages. It is stated that the plaintiffs have not
challenged even the notification of the project area. The
allegation regarding the causation of the damages is also
denied in the written statement. It is stated that, it is
usual that flash floods occurs in the project area, causing
widespread destruction, and that cannot be a reason for
AS NOS. 688 OF 2000 & 59 OF 2001
2024:KER:68350
claiming any damages by the plaintiffs. It is admitted in
the written statement that Board had worked out the
damages as Rs.42,311.80 to the plaintiffs jointly. It is
also contended that the Board is not bound by the
assessment of damages by the Revenue Divisional Officer.
The suit was filed just before the expiry of three years
after the incident. Apart from the fact that there is no
plaint schedule, no evidence tendered in the suit by
taking out a commission. The only evidence available is
the oral evidence tendered by PW1 to PW5 in support
of the plaintiffs' claim. The Government of Kerala which
is admittedly the owner of the land is also not made a
party. The trial Court held that the damages were caused
due to the action of the defendants and decreed the suit
based on the valuation arrived at by the Revenue
Divisional Officer and it is aggrieved by the said decree
that these appeals have been filed.
AS NOS. 688 OF 2000 & 59 OF 2001
2024:KER:68350
3. The counsel for the appellant contended that
the plaintiffs are not entitled to claim any compensation
since they are admittedly trespassers. It is submitted that
as trespassers, they can have no right over the
improvements even if they have made any. It is further
submitted that the suit has been filed even without a
plaint schedule and hence it is not possible to ascertain
whether any damage has been caused to the property of
the appellants. Another aspect pointed out is that the
plaintiffs have approached the Court stating that they are
owners of the land which admittedly they are not. It is
further pointed out that there is no independent evidence
regarding the damages and even the officer who had
prepared the detailed valuation statement was not
examined to prove the documents based on which the
suit has now been decreed.
4. The counsel for the plaintiffs on the other
AS NOS. 688 OF 2000 & 59 OF 2001
2024:KER:68350
hand submitted that the very fact that the Board itself
had assessed damages shows that actual damages were
caused to the plaintiffs. It is submitted that the dispute
is only with regard to the quantum and as far as
quantum is concerned, the Revenue Divisional Officer
has arrived at a figure. Reference is made to the written
statements wherein it is stated that the damage has been
caused. It is also submitted that even though they were
trespassers, there were no proceedings to evict them
from the land and as a matter of fact, though not
available in evidence, the plaintiffs have been given
'patta' over the lands in their possession in the year
2015. The counsel relied on the decision of a Division
Bench of this Court in Joseph K.J vs. Benny Markose
and others [2016 (4) KHC 799] to submit that the
crucial question in a suit for damage is the causation of
damage and the preponderance of probability is the
AS NOS. 688 OF 2000 & 59 OF 2001
2024:KER:68350
required standard of proof to prove the cause of damage.
It is submitted that the cause of damage is necessarily
the flash flood and the flash flood itself was caused due
to the accumulation of muck in the canal.
5. The court below has found that the plaintiffs had no
title over the property. The Court below relied on the
fact that the officials of the KSEB and the Revenue
authorities had inspected the property after the alleged
flash flood and assessed the damages caused. The Court
held that since it is only a suit for damages, there is no
necessity to go into the question of title. The Court
below relied on the evidence of PW1 to PW5 to hold
that damage was caused due to the flash flood. Without
any further evidence, the Court below accepted the
valuation made by the Revenue Divisional Officer and
granted the decree. Even without examining the
concerned officer, the said document has been accepted
AS NOS. 688 OF 2000 & 59 OF 2001
2024:KER:68350
as yardstick for fixing the land value. Such a method is
not legally permissible in a case for damages and there
should be very clear pleadings and evidence as to where
exactly the damage was caused and what exactly was the
damages. Even if reliance is to be placed on the reports
prepared by public officers, the same can be accepted
only if it is properly proven. In the case on hand, the
Court had relied on the files which were produced by an
officer of the Revenue department even without a proper
evidence regarding the contents of the file. The person
who has produced the file categorically stated that he
has no knowledge about the contents of the file. The
decision in Joseph (supra) is also of not assistance to the
plaintiffs since all that the Court has said was that the
causation of the damage is the crucial question and the
burden is on the plaintiffs to prove the damages caused
by the wrongful act of the defendants. When the land
AS NOS. 688 OF 2000 & 59 OF 2001
2024:KER:68350
where the improvements are stated to have been made
and the damage has been caused, has not been
scheduled to the plaint and there is nothing to link the
property, the improvements and the factum of flood in
the said area, no decree could have been passed in
favour of the plaintiffs. Moreover, the plaintiffs have also
not established their right for the improvements allegedly
made by them as trespassers in forest lands, which is a
primary requirement for claiming damages for the loss of
such improvements.
6. In the above circumstances, these appeals are
allowed and the judgment and decree of the trial court
are set aside. In the circumstances of the case, there will
be no order as to costs.
Sd/-
T.R.RAVI
JUDGE
sn
