M/S SUNIL & ASSOCIATES v STATE OF KERALA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **THURSDAY, THE 6TH DAY OF JULY 2017/15TH ASHADHA, 1939** **WP(C).No. 22129 of 2017 (M) ----------------------------** ## **PETITIONER:** - **-----------** **M/S.SUNIL & ASSOCIATES** **ANCHERY P.O, THRISSUR 680 006 REPRESENTED BY ITS PROPRIETOR, V.S SUNILKUMAR, AGED 53 YEARS, S/O. SUKUMARAN V.R** **BY ADVS.SRI.M.A.ABDUL HAKHIM SRI.JOSEPH GEORGE (KANNAMPUZHA) SRI.R.RAJESH (K)** **RESPONDENTS:** - **------------** **1. STATE OF KERALA** - **REPRESENTED BY POWER SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM 695 001** **2. KERALA STATE ELECTRICITY BOARD LTD VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM 695 004 REPRESENTED BY ITS MANAGING DIRECTOR** **3. KERALA STATE ELECTRICITY LICENSING BOARD, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM- 695 001 REPRESENTED BY ITS SECRETARY** **4. CHIEF ELECTRICAL INSPECTOR HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001** **5. DEPUTY CHIEF ELECTRICAL INSPECTOR THOPPIL ESTATE, VYTTILA, COCHIN 682 019** **6. CHIEF ENGINEER DISTRIBUTION(ERNAKULAM REGION) KSEB LTD,D.H ROAD, COCHIN 682 016** **7. ASSISTANT ENGINEER ELECTRICAL SECTION,KSEB LTD THRIKKAKKARA, COCHIN-682 030** **8. THRIKKAKKARA MUNICIPALITY THRIKKAKKARA, COCHIN-682 021 REPRESENTED BY ITS SECRETARY** ## **WP(C).No. 22129 of 2017 (M) ---------------------------** ## **9. DIVISIONAL OFFICER** **FIRE & RESCUE SERVICES, THRIKKAKKARA, COCHIN-682 020** - **10.CHELOOR PROPERTY AND DEVELOPMENT PROJECTS LTD CHELOOR ELDORADO, KUSUMAGIRI P.O, COCHIN 682 030 REPRESENTED BY ITS MANAGING DIRECTOR DR.C.R.RAMDAS** ## **11.PRASANTH K.R** **M/S. SURYA ELECTRICALS, ADVOCATE EASWARA IYER ROAD, PULLEPPADY, ERNAKULAM, PIN 682 018** **R8 BY ADV. SRI.K.B.RAJESH, SC, THRIKKAKARA MUNICIPALITY R2,R6,R7 BY ADV. SRI.N.RAPHY RAJ, SC, KERALA STATE ELECTRICITY BOARD LIMITED** **BY GOVERNMENT PLEADER SRI.C.P. PRADEEP BY SRI.SUDHEER GANESH KUMAR R., SC, K.S.E.B BY SRI.G.G.MANOJ, SC, THRIKKAKARA MUNICIPALITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 22129 of 2017 (M)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER EXHIBITS:** **--------------------** |**EXHIBIT**|**P1**|**A PHOTOSTAT COPY OF THE ARTICLES OF AGREEMENT DATED**| |---|---|---| |||**24/9/2009 EXECUTED BY THE PETITIONER WITH THE 10TH**| |||**RESPONDENT.**| |**EXHIBIT**|**P2**|**A PHOTOSTAT COPY OF THE SANCTION ORDER ISSUED BY**| |||**THE 5TH RESPONDENT**| |**EXHIBIT**|**P3**|**A PHOTOSTAT COPY OF THE CIRCULAR D1 1-5922/94/CEI**| |||**DATED 8/10/1994 ISSUED BY THE 4TH RESPONDENT**| |**EXHIBIT**|**P4**|**A PHOTOSTAT COPY OF THE APPLICATION SUBMITTED BY**| |||**THE COUNSEL FOR THE PETITIONER TO THE 7TH**| |||**RESPONDENT DATED 16/3/2017**| |**EXHIBIT**|**P5**|**A PHOTOSTAT COPY OF THE REPLY DATED 17/4/2017**| |||**ISSUED BY THE 7TH RESPONDENT TO THE COUNSEL FOR THE**| |||**PETITIONER**| |**EXHIBIT**|**P6**|**A PHOTOSTAT COPY OF THE APPLICATION DATED**| |||**22/10/2016 SUBMITTED BY AN AGENT OF THE PETITIONER**| |||**TO THE 8TH RESPONDENT**| |**EXHIBIT**|**P7**|**A PHOTOSTAT COPY OF THE REPLY DATED 29/11/2016 **| |||**ISSUED BY THE 8TH RESPONDENT**| |**EXHIBIT**|**P8**|**A PHOTOSTAT COPY OF THE APPLICATION DATED 17/3/2017**| |||**SUBMITTED BY THE COUNSEL FOR THE PETITIONER TO THE**| |||**STATION OFFICER FIRE AND RESCUE SERVICES,**| |||**THRIKKAKKARA**| |**EXHIBIT**|**P9**|**A PHOTOSTAT COPY OF THE REPLY DATED 24/3/2017**| |||**ISSUED BY THE STATION OFFICER, FIRE AND RESCUE **| |||**STATION, THRIKKAKARA TO THE COUNSEL FOR THE**| |||**PETITIONER**| |**EXHIBIT**|**P10**|**A PHOTOSTAT COPY OF THE REPLY DATED 15/4/2017**| |||**ISSUED BY THE 9TH RESPONDENT TO THE COUNSEL FOR THE**| |||**PETITIONER**| |**EXHIBIT**|**P11**|**A PHOTOSTAT COPY OF THE LIST OF 49 ELECTRICAL**| |||**CONNECTIONS PREPARED BY THE PETITIONER DATED NIL**| |**EXHIBIT**|**P12**|**A PHOTOSTAT COPY OF THE FORM OF DECLARATION TO BE**| |||**SUBMITTED BY THE CONTRACTOR AND THE CONSUMER TO**| |||**THE ELECTRICAL INSPECTORATE DATED NIL**| |**EXHIBIT**|**P13**|**A PHOTOSTAT COPY OF THE COMPLAINT DATED 16/6/2016**| |||**SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT**| |**EXHIBIT**|**P14**|**A PHOTOSTAT COPY OF THE SITE MAHAZAR DATED**| |||**23/6/2016 PREPARED BY THE 5TH RESPONDENT**| ## **WP(C).No. 22129 of 2017 (M)** ## **---------------------------** |**EXHIBIT**|**P15**|**A PHOTOSTAT COPY OF THE ENQUIRY REPORT DATED**| |---|---|---| |||**28/6/2016 PREPARED BY THE 5TH RESPONDENT**| |**EXHIBIT**|**P16**|**A PHOTOSTAT COPY OF THE STATEMENT OF THE 11TH**| |||**RESPONDENT DATED 12/8/2016 GIVEN TO THE 3RD**| |||**RESPONDENT**| |**EXHIBIT**|**P17**|**A PHOTOSTAT COPY OF THE STATEMENT OF THE PETITIONER**| |||**DATED 30/8/2016 TO THE 3RD RESPONDENT**| |**EXHIBIT**|**P18**|**A PHOTOSTAT COPY OF THE REPLY DATED 1/8/2016 ISSUED**| |||**BY THE 6TH RESPONDENT TO THE PETITIONER**| |**EXHIBIT**|**P19**|**A PHOTOSTAT COPY OF THE APPLICATION DATED 17/6/2016**| |||**SUBMITTED BY AN AGENT OF THE PETITIONER TO THE 7TH**| |||**RESPONDENT**| |**EXHIBIT**|**P20**|**A PHOTOSTAT COPY OF THE REPLY DATED 11/7/2016**| |||**ISSUED BY THE 7TH RESPONDENT**| |**EXHIBIT**|**P21**|**A PHOTOSTAT COPY OF THE LETTER DATED 24/10/2016**| |||**SENT BY THE 7TH RESPONDENT TO THE 5TH RESPONDENT**| |**EXHIBIT**|**P22**|**A PHOTOSTAT COPY OF THE SHOW CAUSE NOTICE ISSUED BY**| |||**THE 4TH RESPONDENT TO THE 11TH RESPONDENT DATED**| |||**8/2/2017**| |**EXHIBIT**|**P23**|**A PHOTOSTAT COPY OF THE PROCEEDINGS OF THE SUB**| |||**COMMITTEE OF THE 3RD RESPONDENT DATED 7/3/2017**| |**EXHIBIT**|**P24**|**A PHOTOSTAT COPY OF THE PROCEEDINGS DATED 24/3/2017**| |||**OF THE 3RD RESPONDENT**| |**EXHIBIT**|**P25**|**A PHOTOSTAT COPY OF THE ORDER DATED 5/5/2017 OF THE**| |||**3RD RESPONDENT.**| ## **RESPONDENTS EXHIBITS: NIL** **--------------------** **//TRUE COPY//** **PA TO JUDGE** **bng** ## **A.K.JAYASANKARAN NAMBIAR, J. ------------------------------W.P.(C).NO.22129 OF 2017 (M) ----------------------------------Dated this the 6[th] day of July, 2017** ## **J U D G M E N T** The petitioner has approached this Court seeking to quash Exts.P23, P24 and P25 orders, to the extent, they refuse to impose the maximum punishment of cancellation of Electrical Contractor's license on the 11[th] respondent. A further direction is sought against the 3[rd] respondent to award the maximum punishment of cancellation of Electrical Contractor's license in relation to the 11[th] respondent. 2. The brief facts necessary for a disposal of the writ petition is as follows: A contract was entered into between the petitioner, who holds an A class Electrical Contractor's license from the 3[rd] respondent for more than 15 years, and the 10[th] respondent builder, for the purposes of doing electrical works in an apartment building, by name “Cheloor Eldorado” at Thrikkakkara. Ext.P1 is the agreement executed between the petitioner and the 10[th] respondent in this behalf. It is stated that, pursuant to the agreement, the petitioner stocked the entire electrical materials, except 17 distribution boards, at the building site, at the cost and expense of the petitioner. Although **W.P.(C).No.22129/2017** **2** there are 54 apartments in the said building, since the 10[th] respondent could not complete the civil works and could not sell the apartments as expected, he requested the petitioner to obtain sanction for electric connection to the 37 apartments that had been completed, and in respect of the common area for the said apartments, from the Electrical Inspectorate. It is the case of the petitioner that, along with the 10[th] respondent, he submitted a partial completion certificate to the Electrical Inspectorate, after completing the electrical works in respect of the 37 apartments, and the applications specifically showed the details of the electrical load to the said apartments. It would appear that, after inspection, the 5[th] respondent issued Ext.P2 sanction order in respect of the 37 apartments and the common area. Thereafter, while there was no communication from the 10[th] respondent to the petitioner, it is his case that the 10[th] respondent entrusted the electrical works in respect of the balance 17 apartments to the 11[th] respondent. The petitioner came to know of this arrangement between the 10[th] and 11[th] respondents only belatedly, and immediately on realising that the 11[th] respondent had undertaken the said electrical works without having the necessary competence to do so, and had further committed various violations as per the statutory provisions while interacting with the Electrical Inspectorate **W.P.(C).No.22129/2017** **3** and submitting reports before the said Inspectorate, for the purposes of getting sanction orders, informed the Electrical Inspectorate and also submitted Ext.P13 complaint raising various allegations against the 11[th] respondent, before the 3[rd] respondent Licensing Board. In Ext.P13 complaint, the petitioner essentially wanted the Licensing Board to take severe action against the 11[th] respondent including inter alia the imposition of appropriate penalty orders as also the extreme penalty of cancellation of the Electrical Contractor's license in relation to the 11[th] respondent. Thereafter, the 3[rd] respondent appears to have entrusted the enquiry, regarding the allegations raised by the petitioner, to a Sub Committee, which drew up Ext.P23 report, which was considered by the Licensing Board, and approved by it as evidenced by Ext.P24. On the basis of the approved report of the Sub Committee, the Secretary of the 3[rd] respondent issued Ext.P25 order imposing certain punishments on the 11[th] respondent. In the writ petition, it is the case of the petitioner that the report of the Sub Committee, as also the approval of the said report by the Licensing Board, and the final order passed by the Board as communicated by Ext.P25 order of the Secretary of the Board, are illegal, inasmuch as they have not considered the gravity of the violations committed by the 11[th] respondent, and, hence, the **W.P.(C).No.22129/2017** **4** punishment imposed on the 11[th] respondent in Ext.P25 order was disproportionate, when compared to the gravity of the offence committed by the said respondent. It is therefore that the petitioner has approached this Court, seeking a direction to the 3[rd] respondent to award the maximum punishment of cancellation of Electrical Contractor's license in respect of the 11[th] respondent. 3. I have heard the learned counsel for the petitioner on the issue of maintainability of the writ petition and the locus standi of the petitioner to seek a direction of the nature indicated in the prayer portion of the writ petition. On a consideration of the facts and circumstances of the case, I am of the view that the writ petition filed under Article 226 of the Constitution of India, seeking a direction to the 3[rd] respondent, which is a statutory authority under the Kerala State Electricity Licensing Board Rules, framed in exercise of the rule making power conferred on the State Government under the Electricity Act, to exercise its discretion in a particular way, cannot be entertained, at the instance of the petitioner, who has no role to play in the statutory scheme of regulation that is contemplated under the said Rules. No doubt, if the **W.P.(C).No.22129/2017** **5** petitioner is aggrieved by any action of the 10[th] respondent builder or by any injury caused to him as a direct result of the actions of the 11[th] respondent, it would be open to the petitioner to move the appropriate civil court for appropriate reliefs. In the present writ petition, what the petitioner assails is the exercise of the discretion by a statutory board in the matter of the punishment that had to be imposed on the 11[th] respondent, for violating the conditions of a license granted to the said respondent. The adjudication that was undertaken by the 3[rd] respondent Board was therefore in respect of the conditions of a license issued by the 3[rd] respondent to the 11[th] respondent, and in such an adjudication process, the petitioner, as a rival licensee, does not have any role to play. A regulatory authority entrusted with the task of regulating the activity of licensing of contractors need only look to whether the statutory conditions, with regard to the license, have been adhered to by the licensee, and a decision on the measure of penalty that is to be imposed, is necessarily within the discretion of the said regulatory authority. In the said process, the petitioner is a stranger as per the statutory scheme. I therefore cannot accept the contention of the learned counsel for the petitioner, who would vehemently contend that he has the locus standi to maintain a writ petition, placing reliance on the decision of the Supreme Court in **W.P.(C).No.22129/2017** **6** ## **- Saichalchitra v. Commissioner, Meerut Mandal and Others** **[2005 KHC 507]** . I notice that the said decision only held that a person in the same trade as another, has a right to seek the cancellation of a license granted to a rival which is in violation of the relevant Act and Rules. In the instant case, the petitioner does not stand in the position of a rival aggrieved by the grant of license to another person. The petitioner, on the other hand, seeks the imposition of a greater penalty, than what was awarded by the regulatory authority, to a rival contractor. The discretion exercised by the statutory authority has necessarily to be an independent one and cannot be fettered by the demands of the petitioner. The decision relied on by the petitioner is clearly distinguishable on facts. I therefore dismiss the writ petition by holding that the petitioner does not have the locus standi to seek the prayers sought for in the writ petition. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** **prp/7/7/17**