Mathoor Chennakkadan v. Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938 WA.No. 1666 of 2016 () IN WP(C).26312/2015 -------------------------------------------- AGAINST THE ORDER/JUDGMENT IN WP(C) 26312/2015 of HIGH COURT OF KERALA DATED 5.7.2016 APPELLANT/PETITIONER IN WP(C): -------------------------------- MATHOOR CHENNAKKADAN, LIVING VISION AND COMMUNICATION, KOLANCHERRY, ERNAKULAM DISTRICT. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENTS/RESPONDENTS IN WP(C): ----------------------------------- 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY VYDYUTHI BHAVAN, PATTAM, THIRUVANANTHAPURAM 695 001. ## 2. THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, KSEB, ELECTRICAL DIVISON, THRIPPUNITHURA, ERNAKULAM 682 301. BY SRI.JAICE JACOB, SC, KERALA STATE ELECTRICITY BOARD THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 1666 of 2016 () IN WP(C).26312/2015 ## APPENDIX APPELLANT'S ANNEXURES:- ANNEXURE A: COPY OF THE RECEIPT ISSUED BY THE 2[nd] RESPONDENT IN RESPECT OF THE AMOUNT REMITTED AS PER INTERIM ORDERS OF THIS COURT. ANNEXURE B: COPY OF THE RECEIPT ISSUED BY THE 2[nd] RESPONDENT IN RESPECT OF THE AMOUNT REMITTED BY APPELLANT FOR THE YEAR 2016-17. RESPONDENTS' ANNEXURES :- NIL. True copy P.A to Judge **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------W.A.No.1666 of 2016 -----------------------------------------------------------------Dated this the 23[rd] day of August, 2016** ## **JUDGMENT** ## Anil K.Narendran, J. The appellant, who is a Cable TV operator having cable TV network in Kolenchery in Ernakulam, within the jurisdiction of the 2[nd] respondent, has approached this Court in W.P.(C). No.26312/2015 seeking a writ of certiorari to quash Ext.P5 notice issued by the 2[nd] respondent and seeking a writ of mandamus commanding the 2[nd] respondent to verify the newly used poles, if any, by the appellant in addition to the poles mentioned in Ext.P2 agreement and calculate the rates as per the agreement for that poles separately and inform the same to him so that he could pay the said amount. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent to comply with the terms and conditions of Ext.P2 agreement. 2. The learned Single Judge by the judgment dated 5.7.2016 disposed of the writ petition. Paras.5, 19 and 20 of the judgment read thus:- W.A.No.1666 of 2016 2 “5. In WP(C) No. 26312/2015, petitioner claims to have entered into an agreement dated 28/5/2010 for the period upto 31/3/2011. It is contended that on the basis of the agreement, the petitioner was remitting the pole rental regularly. He entered into a sale agreement with Sri.T.B.Manoj for purchasing a Cable TV network. By Ext.P5 notice dated 16/4/2015, petitioner was called upon to remit `3,95,010/- for the rent from 2011-12 to 2015-16 for using 570 poles in ES Kolenchery. Petitioner contends that he has no obligation to pay any such amount and the amounts had been arbitrarily claimed by the respondents. xxx xxx xxx 19. Drawing of cables through electric posts of the Board is apparently not a statutory contract between the parties. It is only an arrangement by which permission is granted by the Board to Cable TV operators like the petitioners to draw the cables. Even according to the petitioners, they have drawn the cables without permission from the Board. Hence, it is for the Board to take appropriate action in accordance with law. If the petitioners do not want to comply with the Board order, it shall be open for the Board to dismantle the Cable TV network now installed by the petitioners. W.A.No.1666 of 2016 3 **20.** Being a private contract and admittedly unauthorised cables are being drawn without permission, I do not think that this Court will be justified in considering the claim of the petitioners on merits. Having regard to the aforesaid fact situation, these writ petitions are disposed of as under: - (i) Petitioners are granted four weeks' time to enter into appropriate agreement with the the Board through its Authorized Officer in the matter relating to drawing of cables/ unauthorised drawing of cables after remitting the requisite amount, as demanded by the Board. - (ii) If no steps are taken and no agreement is executed between the parties, it shall be open for the Board to take steps to dismantle the cable from the electric poles. - (iii) Right of the petitioners to approach the Civil Court to adjudicate on the disputed facts are reserved. 3. Feeling aggrieved by the judgment of the learned Single Judge, the appellant is before this Court in this appeal. W.A.No.1666 of 2016 4 4. We heard the learned counsel for the appellant and also the learned Standing Counsel for the Kerala State Electricity Board, representing the respondents. 5. Ext.P2 agreement entered into between the KSEB and the appellant is a non-statutory contract. If that be so, the rights and liberties of the parties to Ext.P2 agreement are governed by the terms of the contract. 6. In **Noble Resources Ltd. v. State of Orissa (2006 (10) SCC 236)** the Apex Court held that, ordinarily, a specific performance of contract would not be enforced by issuing a writ of or in the nature of mandamus, particularly when keeping in view the provisions of the Specific Relief Act, 1963 damages may be an adequate remedy for breach of contract. In that view of the matter, if the appellant has any dispute with the KSEB in relation to Ext.P2 agreement, the proper remedy is not to approach this Court in a writ petition filed under Article 226 of the Constitution of India. W.A.No.1666 of 2016 5 7. As we have already noticed, Ext.P2 agreement executed between the KSEB and the appellant is a non-statutory contract. Further, the pleadings and materials on record would show that, in addition to the electric poles, which are the subject matter of Ext.P2 agreement, the appellant has drawn cables through additional electric poles unauthorisedly. In Ext.P5 notice issued by the 2[nd] respondent the specific stand taken by the said respondent is that the appellant has unauthorisedly used 570 poles in Electrical Section Kolenchery, for which he has to pay pole rental amounting to 3,95,010/- for the period from 2011-₹ 12 to 2015-16. 8. Clause 19 of Ext.P2 agreement provides that the Cable TV operator has no right to transfer/sell/assign his right under the licence/sanction issued by the Board to draw Cable TV to any person under any circumstances without prior permission/ sanction from the Board. It has also been provided that in case the Cable TV Operator transfers his right under the licence/sanction without the permission of the Board, the Board W.A.No.1666 of 2016 6 has the right to revoke/cancel the licences/sanctions issued to the Cable TV Operator. 9. According to the appellant, on 2.6.2014 he had entered into Ext.P4 sale agreement with one T.B.Manoj for purchasing Cable TV network and on the strength of the said agreement he is conducting the said Cable TV network. Though the appellant is liable to pay pole rental in respect of the said Cable TV network only from the year 2014, the 2[nd] respondent issued Ext.P5 notice demanding a sum of 3,95,010/- towards₹ pole rental of 570 electric poles in the Electrical Section Kolenchery. On receipt of Ext.P5 demand notice, the petitioner has submitted Ext.P6 representation before the 2[nd] respondent. 10. Admittedly, there is unauthorised use of electric poles by the appellant. The appellant has not raised any serious disputes as to the actual number of poles used for drawing cable TV network except a vague statement in Ext.P6 as to the number of poles. Even if the appellant raises any factual disputes as to the number of additional electric poles unauthorisedly used by W.A.No.1666 of 2016 7 him, it cannot be adjudicated in writ jurisdiction. In the above factual background, we find absolutely no grounds to interfere with the reasoning of the learned Single Judge in the impugned judgment and also the directions contained in the said judgment. 11. If the appellant intends to use the additional poles mentioned in Ext.P5 notice issued by the 2[nd] respondent it is for him to take necessary steps in terms of the directions contained in the judgment of the learned Single Judge within a period of two weeks from the date of receipt of a certified copy of this judgment after remitting the requisite amount demanded by the KSEB. Till such time, the respondents shall not dismantle the cables drawn by the appellant, if he has remitted pole rental and other charges in respect of the authorised electric poles covered by Ext.P2 agreement. 12. If no steps are taken and no agreement is entered into between the parties as directed above, it would be open to the Board to take appropriate steps to dismantle the Cable drawn by the appellant through additional electric poles unauthorisedly. W.A.No.1666 of 2016 8 13. The right of the appellant to approach the Civil Court to adjudicate on the disputed facts is reserved. So also, the right, if any, to initiate appropriate legal proceedings in terms of the relevant Clause in Ext.P4 agreement executed with Sri.T.B.Manoj. The Writ Appeal stands disposed of as above. Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge