BY AD v. SRI.R.K.VENU NAYAR, SC, KSEB

O R D E R Dated, this the 15th day of February, 2024 This Civil Revision Petition is directed against the Common Order of the District Judge, Thalassery, dated 14.07.2000, in as many as five Original Petitions, of which the Order insofar as it pertains to O.P. No.185/1999 alone is the subject matter of this revision petition. The revision petitioner (Electricity Board) has drawn electric lines after cutting and removing trees from the properties of several persons, including the respondents herein and by virtue of the impugned order, the compensation fixed was enhanced, which is under challenge.

2. Heard the learned counsel for the revision petitioner and the respondents. C.R.P. No.297 of 2001 - 3 -

3. Learned counsel for the revision petitioner raised three arguments; the first is regarding the clubbing of the Original Petitions and rendering a Common Order, which, according to the revision petitioner, is improper and illegal. Learned counsel would point out that except the petitioner in O.P. No.1/1999, no one else had mounted the box to speak in respect of their case, wherefore, a Common Order based on the evidence tendered in only one among the Original Petitions, cannot be sustained is the submission made. The second aspect is with respect to the centage value assessed by the learned District Judge, which is at Rs.2,000/- per cent. According to the learned counsel, the same is not based on any perceivable yardstick. The Commission issued by the Court made some local enquiries and estimated the land value. He had not perused any sale deed indicating the land value; nor was any C.R.P. No.297 of 2001 - 4 - sale deed produced before the Court for the said purpose. According to the learned counsel, the course adopted is illegal. The third ground is with respect to grant of interest at the rate of 12% per annum, on the premise that the activity being conducted by the Electricity Board is a commercial one, as discussed in paragraph Nos.16 and 17 of the impugned Order. Learned counsel would submit that, though a fee/charge is collected for the supply of electricity, the activities are not commercial in nature. Learned counsel would submit that since the present limited acquisition pertains to an year prior to 2003, the supply is governed by the Electricity Act, 1910 and also the Electricity Supply Act,

1948. As per the said enactments, it was the duty of the Board to supply electric energy to all the consumers. The tariff is fixed by the Regulatory Board and it is never as the price/compensation for the actual quantum of energy, that charges C.R.P. No.297 of 2001 - 5 - are levied; nor does it commensurate with the service rendered. The long and short of the submission made by the learned counsel is that the activity of the revision petitioner Board in supplying electric energy is not a commercial one.

4. The above contentions were refuted by the learned counsel for the respondent, who argued to sustain the impugned order.

5. Having heard the learned counsel appearing on both sides this Court finds little merit in the submissions made by the learned counsel for the petitioners, except with respect to the rate of interest. As regards the first contention, this Court notice that what has been essentially decided in the impugned order is the method by which compensation has to be calculated. Various judgments of this Court, including a three Judges C.R.P. No.297 of 2001 - 6 - Bench and a five Judges Bench decision, are referred to arrive at the method in which the compensation has to be calculated on various counts. The significance of individual facts arise only with respect to the extent of land involved and also with respect to the number and nature of the trees cut. In this regard, learned District Judge has proceeded on the basis of the records prepared by the Government officials, to which no objection/ exception can be taken by the revision petitioner. This Court, therefore, finds that absence of evidence being tendered individually by the parties is of little impact, in the given facts. This Court also finds that the revision petitioner Board had not picked up any objection with respect to the clubbing of the above referred five Original Petitions before the trial court. The same, having not been done, it is futile for the revision petitioner Board now to conduct that the clubbing of the cases were C.R.P. No.297 of 2001 - 7 - bad and that individual evidence should have been insisted for. This Court also frown upon the conduct of the revision petitioner Board in choosing to challenge the Common Order, only insofar as one Original Petition is concerned, although, the order dispose of five Original Petitions. This Court may repeat that the present revision petition is directed only against the order in O.P. No.185/1999, whereas the Common Order, as against other four Original Petitions has attained finality, in the absence of any challenge made by the revision petitioner. Therefore, the challenge on the first premise would stand repelled.

6. The second premise is with respect to the fixation of the centage value. A perusal of paragraph no.15 of the impugned order would indicate that the Commissioner, after making local enquiry and after having regard to the C.R.P. No.297 of 2001 - 8 - importance of the locality, has suggested a value of Rs.9,000/- per cent. It is true that no sale deed was perused by the Commissioner, or for that matter, produced before the court. The importance of the locality has been discussed in paragraph no.15. It was also stated that all the properties are included in Kuttiyeri Village of Thaliparamba Taluk, which is within 2 kilometers radius from Thaliparamba town. Ultimately, having regard to the attendant facts and circumstances, the learned District Judge fixed Rs.2,000/- only per cent, as against Rs.9,000/- suggested by the Commissioner. By any reckoning, the same cannot be said to be on the higher side. Therefore, the second contention also fails. This Court may further note that all what the petitioners get is Rs.400/- per cent as the diminition in land value, since it is a case of limited acquisition for the purpose of drawing electric line. C.R.P. No.297 of 2001 - 9 -

7. The remaining question is with respect to the rate of interest. It was pointed out that the Kerala State Electricity Board is a state entity, which has been authorized for the generation and distribution of electricity. Although, rates as per the tariff fixed by the competent authority is being levied from the consumers, the same cannot be construed and regarded as a commercial activity. As a matter of fact, tariff is fixed taking into account, the cost incurred by the Board for supply of electric energy by including consumers in separate tariff, with separate rates. That being so, the activity being conducted by the State Electricity Board cannot be considered as a business activity, is the sum and substance of the submissions made by the learned counsel for the revision petitioner. In answer to the above, the counsel for the respondent would produce a judgment of this Court (C.R.P.No.3256/2001) by a learned Single Judge, C.R.P. No.297 of 2001 - 10 - wherein, 12% interest is seen granted, without there being any discussion on the issue, whether the activity being conducted by the Board is a commercial activity or not.

8. Having heard the learned counsel appearing on both sides, this Court finds considerable force in the submission made by the learned counsel for the revision petitioner/Board. There exist no satisfactory material, as is discernible from the impugned order, which will enable the learned District Judge to arrive at a conclusion that the activity being conducted by the Board is a commercial activity. Therefore, grant of interest at the rate of 12% per annum, cannot be sustained. No material was placed before this Court by the respondent/claimant to indicate that the activity of the Board is commercial in nature. Per contra, it appears from the arguments advanced by the learned counsel for the revision C.R.P. No.297 of 2001 - 11 - petitioner that the activity being conducted by the Board, cannot be regarded as a commercial one.

9. In the result, the impugned order is interfered with, only to the extent of reducing the rate of interest from 12 % to 9% per annum. In all other respects, the order will stand confirmed. This revision petition is disposed of accordingly. Skk//8-19.02.2024 Sd/- C. JAYACHANDRAN JUDGE