HC, KERALA RFA 198, 199, 201, 205, 207,

RESPONDENTS
213, 214 & 215 of 2005
WITH CROSS APPEALS

SC, S BATHERY OS 285 TO 292 OF 1994

PLAINTIFFS

ARGUMENT NOTE ON BEHALF OF THE RESPONDENTS IN THE

MAIN APPEALS AND APPELLANTS IN THE CROSS APPEALS

1. Respondents are the plaintiffs owning separate

items of lands. The only road access to the said
lands, was submerged in water as the reservoir
area of the Banasurasagar project. Realising and
anticipating this consequence, not only for this
road but for three other similar roads also, the
conception plan for the project provided for the
construction of four roads appropriately named as
Replacement Roads. This is proved by Exhibit B15.
These appeals and suits are concerned with the
Replacement Road No II.

2. The first defendant is the State and the ultimate

beneficiary, is the KSEB, arrayed as the second
defendant in all the suits. Collectively they failed
to build the RR II, before the existing roads got
submerged. The inevitable result was that the
access by the plaintiffs to their respective lands
was cut off from 1990.

3. In 1995, the State acquired the lands of the

plaintiffs for a different purpose called the
elephant project at the uniform price of Rs.56,964
per acre vide A1. The lands of all the plaintiffs
were included in category A which means that
they were all similar lands.

4. Between the period 1990 to 1995, on account of

the blocking of the road, the plaintiffs were
prevented from carrying out essential operations
 like, weeding, cropping, and manuring of the
yielding plants in their lands. Naturally this
resulted in the reduction of the yield from the
plants for this period.

5. The suits have been filed claiming compensation

for the loss of income from the respective plaint
lands, for the five years, starting from May 1990 to
August 1995. The cause of action for the suits is
the blockage of the road access on account of the
brazen negligence in not constructing the
Replacement Road No II as provided in the plan for
Banasura Sagar project. The claim for damages
was limited to August 1995 because the plaint
lands were acquired by the Government by
negotiated purchase at that time.

6. Soon after the road became inaccessible, plaintiffs

preferred OP 2223 of 1990 and OP 5728 of 1991
[A10 and A11] which was heard along with some
other OPs. The factual position in all the OPs was
not identical though a common cause was
involved.

7. The joint commissioners appointed by this court

consisting of an advocate and an engineer
inspected the site in July 1990 and submitted their
report dated 26.07.1990 marked as A18. That
report with vivid details concludes that there is no
road access in 1990 to the lands of the plaintiffs.

8. The OPs were allowed on 20.10.1994 directing the

defendants to complete construction of RRII
expeditiously. That direction was not complied.
This is seen from the admission of Dw1 that the
construction of RR II had not been completed even
in 1997

9. Pw2 the husband of P1 and Pw1 the attorney of

the other plaintiffs were examined to speak about
the plaint claims. The advocate commissioner in
A18 report was examined as Pw3 in the suits.
Three subject experts Pw4, from the Spices Board,
 Pw5 from the Coffee Board and Pw7 an
Entomologist were also examined.

10. The trial court allowed damages at the rate of Rs

5000 per acre as damages with interest at 6% p.a.
for five years vide Para 26. D2 KSEB alone has
filed appeals. It is significant that the State has
not filed any appeal so that the decree has
become final as against the State. These appeals
can only consider the liability of D2. The plaintiffs
as respondents in the appeals by D2, have
preferred cross appeals claiming enhancement of
the damages awarded, and also claiming higher
rate of interest.

11. The appellant has raised seven grounds

catalogued below :

[1] Suits are barred by the Land Acquisition Act as the

lands of the
plaintiffs have been acquired by the State
[2] Suits are barred by the Telegraph Act and
Electricity Act;
[3] Suits are barred by Res Judicata – B1 order in OP
2223 of 1990; [4] Plaintiffs have no valid title to the
lands;
[5] Plaint lands were inaccessible before 1990 and
were almost
jungle lands with no improvements
[6] Replacement Road was not necessary but has
been built by D2.
[7] No damage has been caused as alleged.

12. The lower court has rightly found that there is no

bar under the Land Acquisition Act because the
plaint lands had not been acquired on the date of
suit. The suit is not in respect of the amount
awarded as compensation for the acquired land or
for injurious affection. The claim in the suit was
for loss of income suffered by the plaintiffs, for the
years 1990 to 1995, prior to the acquisition in 1995
resulting from the negligence of the defendants in
not erecting Replacement Road II before the
 building of the dam. [Para 27 of judgment]

13. The Telegraph Act and the Electricity Act provide

for compensation where loss is caused by the
erection of electric towers and/or drawing of
supply lines. Since the cause of action in this suit
is different those Acts do not apply. [Para 28 of
Judgment]

14. There is no scope to invoke Res Judicata on

account of B1 order. The relief sought in the writ
was for the construction of the Replacement Road
II or acquisition of the lands of the plaintiffs. The
direction prayed for was allowed by this court.
There is no adverse order against the plaintiffs by
this court.

15. Specifically there was no claim in the writ for

damages due to the failure to construct the
Replacement Road and hence there is no scope for
any Res Judicata here. It cannot also be sought
for in the writ since it requires evidence and can
be claimed only in a suit. [Para 30 Judgment]. S 11
as such will apply only if both proceedings are
suits. But de hors S 11, the general principles of
Res Judicata may apply if an issue arising
between the parties has been considered and
decided in the earlier proceedings. Since the
question of damages was not raised and could not
have been raised in the writ, the plea of Res
Judicata is untenable

16. The cantankerous attitude of the Government

officials is apparent from the questioning of the
title of the plaintiffs to the lands. The defendants
contended that the lands belonged to a Company
under Receivership, but no scrap of paper was
produced to substantiate the absurd plea. The
plaintiffs have produced the relevant title deeds in
the suits,[ A2 series and A12] which were proved
by Pw1 and Pw2. No questions were even put to
them regarding title. [Para 29 of Judgment deals
 with the Thandiyode Estate which was under a
Receiver]

17. To crown the condemnable conduct, the

Government approved the title of all the plaintiffs
by paying consideration to them and getting sale
deeds of all the suit lands executed in its favour by
the plaintiffs in 1995. [B2 to B9]

18. That the plaint lands had no proper road access

even before 1990 and that they were practically
uncultivated jungle lands is dealt with in Para 23
of Judgment. Part of the plaint lands had been
acquired by the State in 1984 and 1992, and the
concerned awards A14, A15 and B10 show that the
lands were developed estates with coffee, pepper,
cardamom and orange. The sale deeds B2 to B9
describe the lands as Thottam [plantation]. Dw3
also admits the existence of yielding plants in the
lands.

19. That the defendants have no compunction in

advancing absolutely false contentions is apparent
from the fraudulent pleading regarding
Replacement Road II. The falsity of the plea that it
was unnecessary for access to the plaint lands is
palpable from B1 and B15 plan. Dw3 candidly
admitted that the particular RR II road had not
been built even on the date of his examination,
though 80% of the dam building work was
complete by that time.

20. The planners were aware of the existing roads at

several places being submerged and so had
prescribed four replacement roads, whose function
is clear from the very caption. The work of the
dam should not have been commenced before the
construction of the four replacement roads. The
failure to do so is sheer negligence of public duty
which had its inevitable natural consequence of
preventing access to the plaint lands beginning
from Mid 1990 to Mid 1995.
21. A18 report based on the inspection in July 1990,
 shows that the road referred to in the plaint was
already seen to be submerged then. Pw3 has
confirmed his observations.

22. C1 and C2 series reports on the basis of the

inspection in January 1997 also shows the road to
be submerged at that time. Dw1 refers to the
statements by the officials of the defendants
which support the case of the plaintiffs.

Legal Liability – Principles

23. With the above factual foundation, attention of the

court is invited to the legal principles to be applied
for fixing the liability of the defendants.

24. The legal foundation for the suits is the tort of

Negligence, coupled with the rule of strict liability.
What is Negligence as a tort. It is the failure to
prevent conceivable loss, even in the doing of a
lawful act. 1994 KHC 1174 is more or less similar
to the present case. Applying the ratio of that
ruling these cases come under strict liability and
not fault liability.

25. The test in such cases is damage and its

forseeability alone. 1999 KHC 515 SC illustrates
the wide width of the liability. That the KSEB is
not immune from tortious liability for its
negligence is seen in 2014 [3] KHC 95. Such
liability subsists even if the plaintiffs have no title
to the lands 2007 KHC 1131.

26. The burden of disproving negligence in such cases

is on the defendant : Kameswara Rao 5th Ed
Chapter LXVI Sy 5 at Page 2403

27. Chapter LXVIII Sy 40 at Page 2539 deals with

proof of damages. AIR 1923 CALCUTTA 49 is a
vintage ruling on the quantum of damages.
Assessment of damages need not be accurate;
principles of assessment of market value in LA
cases, Best of judgment in tax matters, [AIR 1979
 SC 209], cases before the MACT[AIR 1994 SC
1631] are examples. Guesstimate is not only
permitted but is prescribed. The SC has dealt with
such a case in 2016 KHC 6358

28. Chapter LXXII Sy 1 at page to 2599 deals with

composite liability for negligence.
Cross appeals – Rate fixed pathetically low

29. The Lower Court has not applied the above

principles in awarding compensation to the
plaintiffs. Hence the cross appeals:

30. Exhibit A5 series and A17 notices have given

details of the income yielding trees in the
respective properties. No reply has been sent by
the State denying the correctness of that data.
The different plaints give details of the nature of
plants and their number in each land. These facts
have not been specifically denied as required by
Order 8, and so they must be deemed to be
admitted. Order 8 Rules 3 and 5 are not merely
ornamental or utopian but have to be applied
strictly. Instead of referring to the plethora of
rulings on this aspect, only the recent DB ruling
2022 KHC 259 is being cited. The proper
application of this rule enables the plaintiff to
dispense with proof. Vide 2004 KHC 1088. The
nature and number of the yielding improvements in
the properties of the plaintiffs as stated in the
plaint have therefore to be deemed to be correct.

31. Pw1, who was managing the properties of all the

plaintiffs, except O S 285, has stated the various
agricultural operations essential for proper yield
from the plants in the land. That is evidence of the
loss and so need not be pleaded. Pw2 has also
spoken about the loss caused to his wife's
property due to blockade of the access road.

32. The natural and normal consequences of any

action need not be proved by exact evidence. S
114 of the Evidence Act applies this principle.
 When yielding plants are not properly attended to
and cared for by timely, weeding, clearing, shade
control, application of pesticides and timely
plucking it is a matter of inevitable inference that
there will be substantial loss in income.

33. That the only access road to the lands was

unusable from 1990 onwards is established as
explained in detail earlier by the pleadings of both
parties, documents, and reports of the two
commissioners.

34. The trial court finds fault with the plaintiffs for not
having asked the Commissioner to ascertain the
loss of income from the property. This criticism is
not warranted in the circumstances. The
commissioner who inspected in 1997 January will
not be able to assess the loss of income for the
previous years. He can only report about what he
sees in January 1997. The plaintiffs cannot
therefore be accused of having avoided the
estimation of loss already caused in the previous
years, by the Commissioner. The Commissioner
cannot be expected to do the impossible and so no
adverse inference can be drawn for not asking the
Commissioner to assess the "possible loss" in the
past years.

35. The lower court also comments on the non

production of the private accounts maintained by
Pw1. Two aspects have to be borne in mind
regarding these accounts. The parties are closely
related and trust each other so that the accounts
will not be picture perfect supported by bills and
vouchers. It will be only a rough chitta of the
income realised and divided among the relatives.
Secondly even if those accounts are produced
they will not be accepted as evidence, but will be
rejected as self serving. When better evidence is
available as shown below the absence of accounts
is not material in these cases.

36. The court also faults the plaintiffs for

 nonproduction of the returns and orders in re
Agricultural Income Tax as well as the EB2 Books.
The EB 2 book, and Agrl IT assessment orders are
not the only method of proving the income. Most of
the planters in Wayanad had shifted to the
compounding system permitted by the AIT Act by
which tax was paid on a flat rate based on the
area without the need to ascertain the actual
income. It is also a fact that coffee was being sold
outside the coffee board because of the immediate
cash inflow. [The Coffee Board took a very long
time to divide the sale proceeds and pay the
planters their due share].

37. Assuming the worst, that the landowners have

violated the Coffee Act by selling coffee illegally in
the open market and have also defrauded the Agrl
IT payable by them, that is no ground to disallow
damages, because the suits are not for any
equitable relief, like injunction, in which alone the
conduct of the plaintiff becomes relevant.

38. The Coffee and Cardamom registration certificates

[A3 and A4] and the awards A14 and A15
probabilise and confirm that the properties were
planted with coffee, pepper, cardamom, orange
etc, and that they were yielding income.

39. Para 25 of the judgment explains how the lower

court arrived at the conclusion in para 24 fixing
the rate of Rs 5000 per acre as the loss suffered
by the plaintiffs. The lower court considered the
compensation of Rs. 2,10,029. 00 [typing mistake
in judgment as Rs 1,10,029] as seen at Page 1 of
B10 in the year 1997 awarded by the Government
for the improvements [trees only no buildings] in
the 1 acre acquired, from which the annual
income was calculated at Rs. 20,000 per acre
[since the multiplier for capitalisation is shown as
10 in the award]. Taking 25% of this income as the
probable loss the Court arrived at the rate of Rs.
5000 per acre as the loss. The plaintiffs did not get
any opportunity to point out the patent errors in
 this method

40. B10 relied on by the Lower Court cannot have any

probative value because that was prepared on 03-
12-1997 after suit, and after the sale of the property
by the plaintiffs to the Government; The date of 4[1]
notification is 18-06-1996 when the plaintiffs had no
property left with them, the sale to the government
being in 1995. This can be seen from the deposition
of Dw2 at pages 10 and 11

41. There are two patent errors in the said

assessment of damages. The award has arrived at
the market value of the land by capitalisation of
the annual income with 10 as the multiplier. That
part of process is unexceptionable. The mistakes
committed by the court thereafter is two fold. The
court proceeded on the basis that the income so
arrived at is the income prior to the damage
caused. The maintenance work of the plantation
was impossible from 1990 onwards, so that the
income in 1997 is the attenuated income after the
damage. That cannot be accepted as the income
when the estate was being managed properly ie
before the damage happened.

42. The second mistake by the Lower Court was in

fixing the damage at 25% of the annual income. No
reasons are given for the fixation of this
percentage.

43. Plaintiffs have projected two alternatives to

assess damages: based on [a] the expert evidence
let in and [b] the two Land Acquisition awards of
part of the plaint lands
44. The evidence tendered by experts Pw4 to Pw7
though referred to by the trial court has not been
applied to arrive at a finding regarding the
quantum of damages. Though it is not common in
Kerala, expert evidence regarding valuation is
generally adduced and accepted in North Indian
states and this type of evidence has been
approved by the Supreme Court in several cases.
 AIR 2012 SC 481

45. Pw4 is a senior field officer of the Spices Board

who proves A19 certificate issued by him
regarding the cardamom cultivation in the
properties during 1990-92. He has furnished the
minimum and maximum yield per acre in Wayanad
for pepper and cardamom. He has also given the
estimated percentage loss due to lack of regular
annual maintenance of the plants at the rate of
20% for both pepper and cardamon.

46. Pw5 is a senior officer of the Coffee Board who

proved A20 issued by the late Dy Director of the
Coffee Board in 1990. He has also the minimum
and maximum yield in Wayanad per acre on the
basis of departmental records. He has estimated
the probable loss due to lack of maintenance at
10%.

47. Pw7 is the entomologist who endorses the pest

menace in the lands which mandates continued
attention.

48. Based on the expert evidence of Pw4 to Pw7

regarding the probable reduction in yield, [for the
number of plants worked out from the Mahazars A8
and A9, A13] is shown in the tabular form as
annexure 1 to 3

49. The alternate method advocated by the plaintiffs,

based on A14 and A15 is narrated below:

A14– 1992 AWARD - 0.3110 H = 77 CENTS

COMPENSATION AWARDED 2,41,186-00 [INCLUDING INTEREST]
DEDUCT INTEREST 98,159-00
BALANCE 1,43,027-00
DEDUCTING 30% SOLATIUM 1,10,020-00 [1,43,027 X 100 /130]
MARKET VALUE OF LAND 1,10,020-00 [FOR 77 CENTS]
RATE PER ACRE 1,42,883-00
NEGOTIATEDRATE PRICE IN 1995 56,694-00
REDUCTION IN VALUE 86,189-00 PER ACRE

50. Similar calculation based on A15 award is given

below:
A15– 1984 acquisition – 0.7575 H = 187 cents [0-2430 x 2.471]
Compensation awarded on capitalisation of income 1,23,232. 68
Deduct timber value of jack tree 250. 00
Balance 1,22,982. 00
Rate per acre in 1984 65,766. 00
Negotiated price paid in 1995 56,694. 00
Reduction in value per acre 9172. 00

The award shows there were several non-yielding plants then [in 1987] which would
have started to yield by 1990. The trial court did not accept either
of the two modes suggested by the plaintiffs.

51. On an objective analysis of the facts and the law

applicable to the case, it is prayed that this court
may be pleased to hold that the claim of the
plaintiffs is proper. The compensation awarded
may of course be limited the amount for which
court fee has been paid by the different plaintiffs.

Interest awarded painfully poor

52. The lower court has awarded only 6% interest on

the meagre amount given as damages. A higher
rate of interest is warranted in the circumstances
of the case. The planners of the Banasugar dam
project had clearly envisaged that the existing
road will be submerged, and thoughtfully provided
for four replacement roads. The defendants should
have had the foresight to build the roads before
the dam. The plaintiffs were compelled to suffer
avoidable damage only on account of the
contumacious negligence of the defendants in not
building the RR II before the dam. At the trial of
the suit, Dw3 admitted that 80% of the dam
construction was over by that time and also that
RR II work was not even started.

53. The claim by the plaintiffs is for damages and not

for any amount due to them on any contract. The
usual rule of 6% interest is intended for
contractual liabilities and not for tortious
damages.

54. In a similar situation where the Government is

 liable to pay compensation for loss, as
distinguished from honouring of a contractual
liability, the Land Acquisition Act, provides for
payment of interest at the rate of 9% for the first
year and at 15% after that both under S 28 and S
34 of the Land Acquisition Act. The challenge to
the high rate of interest by a monopolistic quasi
governmental company was repelled by this court
in 2009 KHC 341 with sound reasoning, which
applies mutatis mutandis to this suit also.

55. The Supreme Court had in 1984 KHC 639 approved

the exorbitant rate of interest collectible from a
defaulter assessee, at the rate of 24% for the first
year and at 36% thereafter as sales tax. It has to
be noticed that the statute did not adopt any
Shylockian attitude, but provided for payment of
interest on refund of tax also at the same rates.
The interest arte under the KGST was 12% for first
three months and thereafter at 24%.

56. Under the new RERA, the promoter and the

allottee are made liable to pay interest at 2%
above the prime lending rate of the Banks on the
amount payable by either. The Negotiable
Instruments Act, as amended, also permits
recovery of interest at 2% above the prime lending
rate of the Bank.

57. Even with regard to purely contractual liability, the

prime lending rate of the State Bank of India
during the period 1991 to 1995 averaged at 16.9
% as seen from the following data:

15.02.1995 15.00
18.10.1994 14.00
02.09.1993 15.00
24.06.1993 16.00
01.03.1993 17.00
09.10.1992 18.00
02.03.1992 19.00
09.10.1991 20.00
04.07.1991 18.50
01.04.1991 17.00

Other Banks in the private sector were permitted

 to charge 2% above the aforesaid rate for loans
granted by them.

58. In the matter of payment of compensation by the

State, under the Land Acquisition Act, the interest
payable was enhanced as early as in 1988 to 9%
for the first year and 15% thereafter. The curial
challenge to the above rates was repelled by this
court in 2009 KHC 341. It is significant that the
new 1996 act retains the identical rate of interest
payable by the State.

59. In the above scenario, allowing the pittance of 6%

on damages payable due to the patent negligence
of the defendants, looked at in the light of the
legally untenable objections to obstruct the course
of justice, conscious of the the commercial
element inherent in the activity of the second
defendant [it is well known that the KSEB
generates enormous profits by selling electricity
to other States] and remembering the
responsibility of both the defendants to be fair to
the citizens it is only just and proper that the rate
of interest payable to the plaintiffs on the
compensation amount be raised at least to 18%.

60. Again no reasons have been stated why costs

were not awarded to the successful plaintiffs. That
they were forced to incur expenses of more than
Rs.44,000.00 as court fee, besides the
commission batta, and expenses for procuring
the expert witnesses to establish their just cause,
ought to have persuaded the court to award
exemplary costs to the plaintiffs in the exercise of
judicial discretion.

Dated 29th January

2024

B G Bhaskar
 BEFORE THE HIGH COURT OF KERALA AT ERNAKULAM

RFA S 198,199,201,205,207,213, 214 AND 215 OF 2005 WITH CROSS

APPEALS

ANNEXURE 1. SCHEDULE SHOWING BREAK UP OF THE LOSS CLAIMED IN

THE PLAINTS

Suit Name Acre H. Are Loss due to lack of maintenanc

No
Pepper Coffee Orange Cardmom
285 Subhadra 17-94 7.2623 3,05,000 1,25,000 75,000 25000

286 Suresh Manual 5-00 2.0235 1,10,000 20,000 5,000 nil

287 Elsy Mathew 9-04 3.6610 Nil Nil nil 3,08,40

288 Lissy Mani 5-00 2.0235 1,20.000 31,900 8100 Nil

289 Joe Tharappel 5-00 2.0235 1,25,000 14,000 nil Nil

290 Rosamma John 6-00 2.4285 nil 10,000 20,000 1,72,00

291 Annie Kuruvila 5-55 2.2555 1,30,000 21,250 4000 Nil

292 Achamma Jose 5-00 2.0235 1,50,000 10,000 2500 Nil

BEFORE THE HIGH COURT OF KERALA AT ERNAKULAM

RFA S 198,199,201,205,207,213, 214 AND 215 OF 2005 WITH CROSS

APPEALS

Annexure 2. Calculation of loss based on the expert evidence of Pw4, Pw5 and
Pw7

PW5 PW4
Coffee Pepper Cardamom

Minimum Yield 286 Kg per acre 1 Kg per plant 50 Kg per acre

Maximum yield 1500 Kg per acre 5 Kg per plant 150 Kg per acre
Average yield 890 Kg per acre 3 Kg per acre 100 Kg per acre

Loss in percent 10% per year 20% per annum 20% per annum
Loss in 1991 89 Kg per acre 600 gms per 20 Kg per acre
plant
Loss in 1992 80 Kg per acre 480 gms per 16 Kg per acre
plant
Loss in 1993 72 Kg per acre 384 gms per 13 Kg per acre
plant
Loss in 1994 65 Kg per acre 307 gms per 10 Kg per acre
plant
Loss in 1995 58 Kg per acre 246 gms per 8 Kg per acre
plant
Total loss of yield 364 Kg per acre 2017 gms = 2.02 67 Kg per acre
for five years Kg per plant

Price per Kg Rs 56 to Rs 120 Rs 35 to 40 Rs.150 to 200

Average price Rs 88 per Kg Rs 37-50 per Kg Rs 175 per Kg
Monetary loss for Rs.32,032-00 per acre Rs.75-75 per Rs.11725-00 Per
five years plant acre

A NNEXURE 2 P AGE 2

Loss per acre Rs 32,032-00 Rs. 30,300-00 Rs. 11,725-00

For 5 acres Rs.1,60,160-00 Rs.1,51,500-00 Rs. 58,625-00
For 5.55 acres Rs.1,77,778-00 Rs.1,68,165-00 Rs. 65,074-00
For 6 acres Rs.1,92,192-00 Rs.1,81,800-00 Rs .70,350-00
For 9-04 acres Rs.2,89,569-00 Rs.2,73,912-00 Rs.1,05,994-00
For 17-94 Rs.5,74,654-00 Rs.5,43,582-00 Rs.2,10,346-00
acres

SUIT ACRE PEPPER COFFEE CA

Subhadra 285 of 1994 17-94 5,43,582 5,74,654 2

Suresh Manual 286 of 1994 5-00 1,51,500 1,60,160

Elsy Mathew 287 of 1994 9-04 Nil Nil 1

Lissy Mani 288 of 1994 5-00 1,51,500 1,60,160

Joe Tharappel 289 of 1994 5-00 1,51,500 1,60,160

Rosamma John 290 of 1994 6-00 Nil 1,92,192

Annie Kuruvila 291 of 1994 5-55 1,68,165 1,77,778

Achamma Jose 292 of 1994 5-00 1,51,500 1,60,160
BEFORE THE HIGH COURT OF KERALA AT ERNAKULAM

RFA S 198,199,201,205,207,213, 214 AND 215 OF 2005 WITH CROSS

APPEALS

Annexure 3. COMPENSATION PAYABLE TO PLAINTIFFS

BASED ON THE 1992 AWARD

RFA OS NAME AREA LAND LAND LOSS OF AMOUNT ELIGIBLE APPEAL

NO NO IN VALUE VALUE VALUE @ UNDER INCREASE CLAIM
ACRE I N 1992 I N 1995 86169 COURT
1,42,883 56694 PER ACRE AWARD
PER ACRE PER ACRE

19 28 SUBHADRA 17.9 25,63,32 10,17,09 15,46,23 4,47,50 10,98,73 1,00,00

8 5 4 1 0 3 0 1 0

19 28 SURESH 5.00 7,14, 415 2,83,470 4,30,945 1,25,00 3,05,945 40,000

9 6 MANUAL 0

20 28 ELSY 9.04 12,91,66 5,12,513 7,79,149 2,25,00 5,54,149 80,000

1 7 MATHEW 2 0

20 28 LISSY 5.00 7,14, 415 2,83,470 4,30,845 1,25,00 3,05,945 40,000

5 8 MANI 0

20 28 JOE 5.00 7,14, 415 2,83,470 4,30,945 1,25,00 3,05,945 40,000

7 9 THARAPPE 0
L

21 29 ROSAMMA 6.00 8,57, 298 3,40,164 5,17,134 1,50,00 3,67,134 60,000

3 0 JOHN 0

21 29 ANNIE 5.55 7,93, 000 3,14,652 4,78,349 1,37,50 3,40,840 50,000

4 1 KURUVILA 0

21 29 ACHAMMA 5.00 7,14, 415 2,83,470 4,30,945 1,25,00 3,05,945 40,000

5 2 JOSE 0
TOTAL 4,50,00
0
Benchmark Prime Lending Rate - Historical Data - Interest Rates

Benchmark Prime Lending Rate (Historical Data)

Effective Date Interest Rate (%)

10.03.2020 12.90
16.12.2019 13.20
10.09.2019 13.70
10.12.2018 13.80
01.10.2018 13.75
01.07.2018 13.70
01.04.2018 13.45
01.01.2018 13.40
01.10.2017 13.70
01.07.2017 13.75
01.04.2017 13.85
01.01.2017 14.00
05.10.2015 14.05
08.06.2015 14.45
10.04.2015 14.60
07.11.2013 14.75
19.09.2013 14.55
04.02.2013 14.45
27.09.2012 14.50
13.08.2011 14.75
11.07.2011 14.25
12.05.2011 14.00
25.04.2011 13.25
14.02.2011 13.00
03.01.2011 12.75
21.10.2010 12.50
17.08.2010 12.25
29.06.2009 11.75
01.01.2009 12.25
10.11.2008 13.00
12.08.2008 13.75
27.06.2008 12.75
27.02.2008 12.25
16.02.2008 12.50
09.04.2007 12.75
20.02.2007 12.25
27.12.2006 11.50
02.08.2006 11.00
01.05.2006 10.75
01.01.2004 10.25
05.05.2003 10.50
01.11.2002 10.75
01.04.2002 11.00
05.03.2001 11.50
12.08.2000 12.00
01.04.2000 11.25
01.03.1999 12.00
01.05.1998 13.00
02.04.1998 13.50
22.01.1998 14.00
01.11.1997 13.00
01.07.1997 13.50
16.04.1997 14.00
01.11.1996 14.50
06.09.1996 15.50
15.07.1996 16.00
10.11.1995 16.50
24.04.1995 15.50
15.02.1995 15.00
18.10.1994 14.00
02.09.1993 15.00
24.06.1993 16.00
01.03.1993 17.00
09.10.1992 18.00
02.03.1992 19.00
09.10.1991 20.00
04.07.1991 18.50
01.04.1991 17.00
 IN THE HIGH COURT OF JUDICATURE, KERALA
R. F. A. of 2005
[Cross Appeal]

Achamma Jose : Appellant

Plaintiff

1. State of Kerala : Respondent/s

2. Kerala State Electricity Board Defendant/s

APPEAL FROM THE JUDGMENT & DECREE DATED 14-02-2003 OF

THE SUBORDINATE JUDGE OF SULTHAN BATHERY in
O. S. 292 of 1994

Achamma Jose .. Plaintiff

1. State of Kerala
2. Kerala State Electricity Board .. Defendants

The appellant, aged 48, Abraham Kothankulam is residing in Rose Gardens, in Meppadi Amsom.
Address for service on the appellant is that of her counsel Jacob Abraham, Akshaya, Kombara Junction,
Ernakulam.

The first respondent, is represented by the District Collector of Wayanad having his office at Kalpetta.
The second respondent is the statutory corporation represented by its Chairman having his office at
Vidyuthi Bhavan, Thiruvananthapuram. Address for service on the parties is the same.

Statement of Facts.

1. The appellant is the plaintiff in a suit for recovery of damages caused to her property by the
negligent execution of the Banasurasagar project by the defendants. Due to the failure of the
defendants to construct Replacement Road II, as specified in the scheme, the only road access to the
property of the plaintiff was lost. This resulted in huge loss in the income from the coffee, pepper
and cardamom plants belonging to the plaintiff in her 5 acre plot.
2. Because the State acquired the land of the plaintiff for an elephant project in 1995, the suit claim
was limited to the loss caused in the years immediately preceding the acquisition. Incidentally it
may be stated that the plaintiff along with similarly affected persons was compelled to file a writ
application which resulted in a direction by this Court to the defendants to construct the RR Road II
without delay.
3. The predicament of the plaintiff loosing the only access to the property was confirmed by the
Commission issued by this Court in the writ proceedings. The Commissioner was examined in the
suit to prove his report.
4. The plaintiff also adduced scientific evidence regarding the loss by examining expert witnesses
from the Coffee Board, and Spices Board, as Pw4, PW5 and Pw7.
5. The suit of the plaintiff was tried jointly with seven other suits by adjacent owners
who had suffered similar damage. The trial court convinced of the loss, and the
causation, however has granted only part of the compensation claimed by the
 plaintiff. Two tables showing the details of the area, crops, and claims is given
below in respect of the cases jointly tried.

Suit Name Acre Claim

285 of 1994 Subhadra 17-94 8,00,000-00
286 of 1994 Suresh Manual 5-00 2,00,000-00
287 of 1994 Elsy Mathew 9-04 3,50,000-00
288 of 1994 Lissy Mani 5-00 2,01,000-00
289 of 1994 Joe Tharappel 5-00 2,00,000-00
290 of 1994 Rosamma John 6-00 2,50,000-00
291 of 1994 Annie Kuruvila 5-55 2,00,000-00
292 of 1994 Achamma Jose 5-00 2,00,000-00

SUIT ACRE PEPPER COFFEE CARDAM TOTAL PLAINT

OM LOSS CLAIM

285 of 17-94 5,43,582 5,74,654 2,10,346 13,28.582 8,00,000-00

1994
286 of 5-00 1,51,500 1,60,160 Nil 3,11,660 2,00,000-00
1994
287 of 9-04 Nil Nil 1,05,994 1,05,944 3,50,000-00
1994
288 of 5-00 1,51,500 1,60,160 Nil 3,11,660 2,01,000-00
1994
289 of 5-00 1,51,500 1,60,160 Nil 3,11,660 2,00,000-00
1994
290 of 6-00 Nil 1,92,192 70,350 2,62,542 2,50,000-00
1994
291 of 5-55 1,68,165 1,77,778 Nil 3,45,943 2,00,000-00
1994
292 of 5-00 1,51,500 1,60,160 Nil 3,11,660 2,00,000-00
1994

6. The plaintiffs also produced documentary evidence in the form of land acquisition awards, based on
the income from property, to show the diminution in value due to the loss of access. The plaintiff
submits that she is entitled to get the amount claimed in the plaint as damages.
7. The second defendant has filed an appeal against the decree of the trial court after a long delay,
which has been condoned on terms, and the appeal was taken on file on
8. The plaintiff is therefore filing this cross appeal under Order 41 Rule 22 read with S. 96 of the Code
of Civil Procedure, aggrieved by the decision of the trial Court disallowing the plaint claim, for the
following among other grounds:

Grounds of Appeal

1. The judgment of the Lower Court in so far it has reduced the quantum of compensation from the
amount claimed in the plaint, is against law and weight of evidence.
2. The Lower Court ought to have held that the plaintiff has adduced evidence on dual basis to
 establish the loss sustained and calculated the compensation on the two criteria.
3. The Lower Court erred in restricting the quantum of compensation to an amount less than the plaint
claim without any justifiable reasons.
4. The Lower Court erred grievously in not awarding suit costs to the plaintiff.
5. The Lower Court ought to have directed payment of interest at the rate of 15% per annum

Though the plaintiff is entitled to get the amount claimed in the plaint, the plaintiff is constrained to
limit the claim in the appeal to the amount shown below, because of inability to pay the additional court
fee

Valuation being the excess amount claimed Rs.40,000-00

Court fee payable on the said amount Rs.
Court fee paid u/S 22 Rs.
Balance court fee payable Nil

Dated August 2005

Advocate for Appellant

 Amount claimed in Appeals

Suit Name Acre Claim Decreed RF Appeal

A
285/1994 Subhadra 17- 8,00,00 4,47,500 1,00,00
94 0 0
286/1994 Suresh 5-00 2,00,00 1,25,000 40,000
Manual 0
287/1994 Elsy Mathew 9-04 3,50,00 2,25,000 80,000
0
288/1994 Lissy Mani 5-00 2,01,00 1,25,000 40,000
0
289/1994 Joe Tharappel 5-00 2,00,00 1,25,000 40,000
0
290/1994 Rosamma 6-00 2,50,00 1,50,000 60,000
John 0
291/1994 Annie 5-55 2,00,00 1,37,500 50,000
Kuruvila 0
292/1994 Achamma 5-00 2,00,00 1,25,000 40,000
Jose 0
4,50,00
0

Rs.12,000 recd as costs in Delay condonation applications

by Ad. Jacob Abraham –
Rs.10,000 adjusted towards fee of Jacob in the stay applns.
Balance 2000

Rs.45,000 recieved for filing the cross appeals –

Rs.38000 given to Jacob + balance 2000 from costs = Rs 40000
towards expenses for cross appeals

Court fee under old rates :

RFA Appeal Name Acre C fee
1,00,000 Subhadra 17-94 5800
40,000 Suresh Manual 5-00 1550
80,000 Elsy Mathew 9-04 4300
40,000 Lissy Mani 5-00 1550
40,000 Joe Tharappel 5-00 1550
60,000 Rosamma John 6-00 2800
50,000 Annie Kuruvila 5-55 2050
40,000 Achamma Jose 5-00 1550
21150

Balance 40,000 minus 21150 = 18850

If filing expenses is taken as Rs 8850
balance with Jacob Rs.10000 towards his fees

Rs.28,000 paid by Kuruvila on 9th August

OS 285 of 1994 S C Bathery. List of Documents

Subhadra
285/94

Subhadra
1 2-02-1968 Jenm assignment Plaint
6 17-02-1968 Jenm assignment Mammad Haji etc Subhadra 15/1/99
1 16-06-1987 Mahazar Tahsildar LA Subhadra 5/1/2000
2 27-07-1988 Award 373/85 Sub Court Bathery Subhadra 5/1/2000
3 23-06-1990 Certificate Thariyod Panchayat Subhadra 15/1/99
3 27-09-1990 Letter Dy.Dir. Coffee Subhadra 5/1/2000
Board
4 24-10-1990 Letter Spices Board Subhadra 5/1/2000
5 28-07-1992 Proceedings Tahsildar LA Subhadra 5/1/2000
2 27-06-1993 Lawyer Notice TPA Govt. & EB Plaint
2 24-07-1995 Certificate Thariyod VO Subhadra 15/1/99
7 9-08-1995 Deed 1079/95 Subhadra 5/1/2000
6 13-06-2000 Proceedings Wayanad Collector Subhadra 5/1/2000
OS 286 to 292 of 1994 S C Bathery. List of Documents

Suresh Manual
286/94
Suresh Manual
1 3-01-1989 Jenm asst. Rosamma Joseph Plaint
4 19-05-1989 Coffee Regn Vythiri Tahsildar Suresh Manual 29-10-1998
4 19-05-1989 Proceedings Coffee Regn Common 29-10-1998
5 13-12-1990 Letter Spices Board Field Officer Common 29-10-1998
2 27-06-1993 Lawyer Notice TPA – common Govt. & EB Plaint
2 2-08-1995 Proceedings Wayanad Collector 29-10-1998
3 7-08-1995 Sale deed Kuruvila as PA Kerala Govt 29-10-1998

Elsy Mathew 287/94

Elsy Mathew
1 9-06-1979 Jenm asst. Haridasa Menon Plaint
6 9-06-1979 Jenm asst. Haridasa Menon Elsy Mathew 29-10-1998
4 7-05-1980 General P A Elsy Mathew Kuruvila 29-10-1998
5 14-09-1982 Cardamom Regn Tahsildar Elsy Mathew 29-10-1998
2 27-06-1993 Lawyer Notice TPA – common Govt. & EB Plaint
2 2-08-1995 Proceedings Wayanad Collector 29-10-1998
3 7-08-1995 Jenm asst. \copy Elsy Mathew Kerala Govt 29-10-1998

Lissi Mani 288/94

Lissi Mani
1 3-01-1989 Jenm asst Plaint
4 19-05-1989 Coffee Regn Vythiri Tahsildar Lissi Mani 29-10-1998
2 27-06-1993 Lawyer Notice Common Lissi Mani Plaint
2 2-08-1995 Proceedings Wayanad Collector Lissi Mani 29-10-1998
3 7-08-1995 Jenm asst. \copy Elsy Mathew Kerala Govt 29-10-1998

Joe Tharappel
289/94

Joe Tharappel
1 5-01-1989 Jenm asst Kochurani Joseph Plaint
2 27-06-1993 Lawyer Notice TPA – common Govt. & EB Plaint
2 2-08-1995 Proceedings Wayanad Collector Joe Tharappel 29-10-1998
3 7-08-1995 Jenm asst. \copy Joe Tharappel Kerala Govt 29-10-1998

Rosamma John 290/94

Rosamma John
1 16-03-1990 Jenm asst. Plaint
2 27-06-1993 Lawyer Notice TPA – common Govt. & EB Plaint
2 2-08-1995 Proceedings Wayanad Collector Rosamma John 29-10-1998
3 7-08-1995 Jenm asst. \copy Rosamma John Kerala Govt 29-10-1998

Annie Kuruvila
291/94

Annie Kuruvila
1 16-03-1990 Jenm asst. Or Pattayam? Plaint
2 27-06-1993 Lawyer Notice TPA – common Govt. & EB Plaint
2 2-08-1995 Proceedings Wayanad Collector Rosamma John 29-10-1998
3 7-08-1995 Jenm asst. \copy Rosamma John Kerala Govt 29-10-1998

Achamma Jose
292/94
1 5-01-1989 Jenm asst. Kochurani Joseph Achamma John Plaint
5 19-05-1989 Coffee Regn Vythiri Tahsildar
7 5-03-1990 Petition OP 2223 of 1990 in HC With annexures
6 28-07-1990 Commissioner 's OP 2223 of 1990 and Ommen Mathew
Report OP 844 of 90 in HC & Philip Chacko
9 27-05-1991 Petition OP 5728 of 91 in HC With annexures
2 27-06-1993 Lawyer Notice TPA – common Govt. & EB Plaint
8 20-10-1994 Order of H C In OP 5728 of 1991
2 2-08-1995 Proceedings Wayanad Collector Achamma John 29-10-
1998 ?
4 7-08-1995 Jenm asst. \copy Achamma John Kerala Govt
 Evidence of dimunition of market value
With reference to land acquisition records

A15– 1984 acquisition – 1988 award by court

0.7575 H = 187 cents [0-2430 x 2.471]

Compensation awarded 1,23,232-68

Rate per acre in 1984 65900-00

Rate paid in 1995 56,694-00
Reduction in value 9,206-00 per acre

How can the price in 1995 be below the price in 1984 ?

Compensation based on dimunition of market value

With reference to Land Acquisition Records

A14– 1992 Award - 0.3110 H = 77 cents [multiply by 2.471]

Compensation awarded 2,41,186-00 [including interest]

Deduct interest 98,159-00
Balance 1,43,027-00
Deducting 30% solatium 1,10,020-00 [1,43,027 x 100 /130]
Market value of land 1,10,020-00 for 77 cents
Rate per acre 1,42,883-00
Rate paid in 1995 56,694-00
Reduction in value 86,189-00 per acre
 Calculation of loss based on estimated yield,
percentage losses and average prices
Spoken to by the experts Pw4, Pw5 and Pw7

Coffee Pepper Cardamom

Minimum Yield 286 Kg per acre 1 Kg per plant 50 Kg per acre
Maximum yield 1500 Kg per acre 5 Kg per plant 150 Kg per acre
Average yield 890 Kg per acre 3 Kg per acre 100 Kg per acre
Loss in percent 10% per year 20% per annum 20% per annum
Loss in 1991 89 Kg per acre 600 gms per plant 20 Kg per acre
Loss in 1992 80 Kg per acre 480 gms per plant 16 Kg per acre
Loss in 1993 72 Kg per acre 384 gms per plant 13 Kg per acre
Loss in 1994 65 Kg per acre 307 gms per plant 10 Kg per acre
Loss in 1995 58 Kg per acre 246 gms per plant 8 Kg per acre
Total loss of 364 Kg per acre 2017 gms = 2.02 67 Kg per acre
yield for five
Kg per plant
years
Price per Kg Rs 56 to Rs 120 Rs 35 to 40 Rs.150 to 200

Average price Rs 88 per Kg Rs 37-50 per Kg Rs 175 per Kg

Monetary loss for Rs.32,032-00 Rs.75-75 Rs.11725-00
five years per acre per plant Per acre
Plants in one acre 400
Loss per acre Rs .32,032-00 Rs. 30,300-00 Rs. 11,725-00
For 5 acres Rs.1,60,160-00 Rs.1,51,500-00 Rs. 58,625-00
For 5.55 acres Rs.1,77,778-00 Rs.1,68,165-00 Rs. 65,074-00
For 6 acres Rs.1,92,192-00 Rs.1,81,800-00 Rs .70,350-00
For 9-04 acres Rs.2,89,569-00 Rs.2,73,912-00 Rs.1,05,994-00
For 17-94 acres Rs.5,74,654-00 Rs.5,43,582-00 Rs.2,10,346-00
Note to Mr Kuruvilla, regarding payments made by the Kerala State Electricity Board
in the eight suits, in the Sub Court, Sulthan Bathery as per the orders of the High
Court of Kerala, industry applications pending the hearing of the seven appeals.

1. The total principal amount decree by the trial Court cumulatively in the seven suits
works out to ₹ 14,60,000. 00. The trial Court and also granted interest at the rate of
6% per annum from the date of suit, which was 23. 08. 1994.

2. The Electricity Board had on 13. 09. 2005 deposited only the sum of ₹ 7,30,000.00
with a memo that the amount deposited is 50% of the decreed amount. It appears that
the then Minister for Electricity, had ordered the payment of the entire amount as
decreed on the representation by the decree holders on 27. 07 2004

3. The deficiency in payment was brought to the notice of the High Court by the
plaintiff on 24. 09. 2005 by I. A. 3114 of 2005. By order dated 8. 11. 2005, the High
Court extended the time the deposit by two weeks.

4. You will have to ascertain from the Sub Court, Sulthan Bathery, whether the Board
has made any further deposit.

5. If the board wants we can give a fresh calculation statement, showing the amounts
due as on date.

Dated 20. 05. 2023

 IN THE HIGH COURT OF JUDICATURE, KERALA
R. F. A. OF 2005

Kerala State Electricity Board

Appellant
……………………………..
and another
Respondent
Annexure showing the correct Decree Amount
principal with interest at 6% p.a. from date of suit viz 23-08-1994 till date of deposit viz 13-09-2005

No Suit No Principal Interest Total decree 50% of decree Amount Deficit A

amount amount deposited
1 286/94 1,25,000 82,910.96 207,910.96 103,955.48 62,500 41,455.48 214
2 287/94 2,25,000 1,49,239.73 3,74,239.73 1,87,119.86 1,12,500 74,619.86 199
3 288/94 1,25,000 82,910.96 207,910.96 103,955.48 62,500 41,455.48 213
4 289/94 1,25,000 82,910.96 207,910.96 103,955.48 62,500 41,455.48 215
5 290/94 1,50,000 99,493.15 249,493.15 124,746.58 75,000 49,746.58 205
6 291/94 1,37,500 91,202.05 228,702.05 114,351.03 68,750 45,601.03 201
7 292/94 1,25,000 82,910.96 207,910.96 103,955.48 62,500 41,455.48 207
8 285/94 4,47,500 296,821.23 744,321.23 372,160.62 2,23,750 48,410.62 198
Total 14,60,000 2,428,400.00 1,214,200.01 7,30,000 484,200.01

Dated 24th September 2005

Deficit amount deposited by cheque No 088029 dt 16-11-2005 in SC, Bathery
 Suit Name Acre Claim Decreed Appeal
285/1994 Subhadra 17-94 8,00,000 4,47,500 1,00,000 ….. /2005
286/1994 Suresh Manual 5-00 2,00,000 1,25,000 40,000
287/1994 Elsy Mathew 9-04 3,50,000 2,25,000 80,000
288/1994 Lissy Mani 5-00 2,01,000 1,25,000 40,000
289/1994 Joe Tharappel 5-00 2,00,000 1,25,000 40,000
290/1994 Rosamma John 6-00 2,50,000 1,50,000 60,000
291/1994 Annie Kuruvila 5-55 2,00,000 1,37,500 50,000
292/1994 Achamma Jose 5-00 2,00,000 1,25,000 40,000