Raju M. Michael v. Kerala State Electricity Board Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 1ST DAY OF SEPTEMBER 2016/10TH BHADRA, 1938 WA.No. 1705 of 2016 () IN WP(C).37604/2015 -------------------------------------------AGAINST THE ORDER/JUDGMENT IN WP(C) 37604/2015 of HIGH COURT OF KERALA DATED 05-07-2016 APPELLANT : PETITIONER :- --------------------- RAJU.M.MICHAEL, AGED:53 YEARS, S/O VARGHESE MICHAEL, MANJADIYIL HOUSE, CHOKKAD P.O, MALAPPURAM DISTRICT, PIN-679 332. BY ADVS.SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SRI.M.U.KURIAKOSE SRI.JOSEPH KURIAN VALLAMATTAM SRI.M.B.SOORI SRI.V.S.SHIRAZ BAVA ## RESPONDENTS : RESPONDENTS : -------------------------- 1. THE KERALA STATE ELECTRICITY BOARD LTD., VYDHYUDHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN. 2. THE SECRETARY (ADMINISTRATION), THE KERALA STATE ELECTRICITY BOARD LTD., VYDHYUDHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICIAL DIVISION, NILAMBUR, MALAPPURAM DISTRICT. WA.No. 1705 of 2016 () IN WP(C).37604/2015 4. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION, POOKKOOTTUMPADAM, MALAPPURAM DISTRICT. 5. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD LTD, ELECTRICAL SECTION, KALIKAVU, MALAPPURAM DISTRICT. BY SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------W.A.No.1705 of 2016 -----------------------------------------------------------------Dated this the 1[st] day of September, 2016** ## **JUDGMENT** ## Anil K.Narendran, J. The appellant, who is a Cable TV operator having cable TV network in Pookkottumpadam and Kalikavu areas in Malappuram District, has approached this Court in W.P.(C).No.37604/2015 seeking a writ of certiorari to quash Ext.P4 order to that extent it contemplate for assuming that the Cable Operators have installed the poles from March, 2011 onwards and that they are liable to pay charges as pole rental with effect from 1.4.2011, even without any enquiry in this regard. He has also sought for a declaration that the respondents have no right to demand pole rental with effect from 1.4.2011 and that they are entitled to demand pole rental only for the actual period during which the cables were drawn through the poles. 2. The learned Single Judge by the judgment dated 5.7.2016 disposed of the writ petition. Paras.19 and 20 of the judgment read thus:- W.A.No.1705 of 2016 2 “ **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. **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.” W.A.No.1705 of 2016 3 3. Feeling aggrieved by the judgment of the learned Single Judge, the appellant is before this Court in this appeal. 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. The agreement dated 1.12.2006 entered into between the KSEB and the appellant, referred to in Ext.P1 proceedings of the 3[rd] respondent, is a non-statutory contract. If that be so, the rights and liberties of the parties to the said 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 agreement referred to in Ext.P1, the proper remedy is not to approach this Court in a writ petition filed under Article 226 of W.A.No.1705 of 2016 4 the Constitution of India. 7. As we have already noticed, the 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 241 electric poles, which are the subject matter of Ext.P1 order of sanction dated 1.12.2006, the appellant had drawn cables through additional electric poles unauthorisedly. As per Ext.P1 order the appellant is authorised to use only 181 electric poles under Electrical Section, Pookkottumpadam and 60 electric poles under Electrical Section, Kalikavu. In Ext.P5 notice issued by the 3[rd] respondent the specific stand taken by the said respondent is that the appellant has used 478 poles under Electrical Section Pookkottumpadam and he has to remit a sum of 3,79,510/- for the period from 4/2011 to 12/2014 together₹ with service tax and other charges. In Ext.P6 notice the 3[rd] respondent has stated that the appellant has utilized 262 electric poles under Electrical Section, Kalikavu and he has to remit a further sum of 2,08,016.16 for the aforesaid period together₹ with service tax and other charges. The appellant has not even W.A.No.1705 of 2016 5 disputed the number of electric poles mentioned in Exts.P5 and P6 by filing any objections, before the 3[rd] respondent. 8. Admittedly, there is unauthorised use of electric poles by the appellant. Though the Writ Petition contains vague averments to the effect that the appellant has drawn cables through additional electric poles only in the year 2013/2014, the said factual dispute cannot be adjudicated in writ jurisdiction. Similarly, if the appellant raises any factual disputes as to the number of additional electric poles unauthorisedly used by him, such dispute cannot also 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. 9. If the appellant intends to use the additional poles mentioned in Exts.P5 and P6 notices issued by the 3[rd] 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 W.A.No.1705 of 2016 6 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.P1 and similar agreements, if any. 10. 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 the additional electric poles unauthorisedly. 11. The right of the appellant to approach the Civil Court to adjudicate on the disputed facts, if any, is reserved. The Writ Appeal stands disposed of. ## Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge