Sajeev V.G. Siva Sakthi Cable Net Work v. Kerala State Electricity Board and The Executive Engineer, Office of the Executive Engineer, KSEB, Electrical Division, Thripunithura

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. 1633 of 2016 () IN WP(C).26337/2015 -------------------------------------------AGAINST THE ORDER/JUDGMENT IN WP(C) 26337/2015 of HIGH COURT OF KERALA DATED 09-06-2016 APPELLANT : PETITIONER IN W.P.(C):- ------------------------------ SAJEEV V.G. SIVA SAKTHI CABLE NET WORK, MAZHUVANNOOR NORTH, KOLANCHERRY, ERNAKULAM DISTRICT. BY ADVS.SRI.T.RAJASEKHARAN NAIR SRI.RAJESH P.NAIR RESPONDENTS/RESPONDENT IN W.P.C.: --------------------------------- 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY IS SECRETARY VYDYUTHI BHAVAN, PATTAM, THIRUVANANTHAPURAM. PIN- 695 001. 2. THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, KSEB, ELECTRICAL DIVISION, THRIPPUNITHURA, ERNAKULAM- 682 301. BY SRI.JAICE JACOB, SC, KERALA STATE ELECTRICITY BOARD THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 1633 of 2016 () IN WP(C).26337/2015 ## 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.1633 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 Mazhuvannoor North in Kolenchery, within the jurisdiction of the 2[nd] respondent, has approached this Court in W.P.(C).No.26337/2015 seeking a writ of certiorari to quash Ext.P3 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.P1 agreement and calculate the rates as per the agreement for that poles separately and inform him the same 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.P1 agreement. 2. The learned Single Judge by the judgment dated 9.6.2016 disposed of the writ petition. Paras.3 and 4 of the judgment read thus:- W.A.No.1633 of 2016 2 “3. First of all, the arrangement between the petitioner and the Board is not statutory in nature. It is by way of permission granted by the Board that the cables are being drawn by Cable TV operators. If there is any dispute regarding the terms of such agreement, the manner in which the arrangement has to work out, the dispute regarding the number of poles utilized or the rate claimed, such issues cannot be adjudicated by this Court in a writ petition filed under Article 226 of the Constitution of India. 4. First of all, there is no agreement and even assuming that agreement is in force, still, this Court cannot take any decision with reference to the rate claimed by the Board and from which date such amounts can be claimed. Such issues have to be adjudicated only by a Civil Court or if the Board is willing to give any concession, it is for the Board to take such decision. Having regard to the aforesaid disputed facts, I do not think that this Court will be justified in issuing any direction as sought for. However, taking into account the plight of the petitioner, this writ petition is disposed of as under; - (i) That the petitioner is given four weeks' time to enter into appropriate agreement with the Board for continuing the Cable TV network on payment of such amount as may be demanded by the Board. W.A.No.1633 of 2016 3 - (ii) If the agreement is not executed as stated above, it shall be open for the Board to take appropriate proceedings in accordance with law. - (iii) The right of the petitioner to challenge the demand made in terms of Ext.P3 by approaching the civil court is reserved.” 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. Ext.P1 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.P1 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 W.A.No.1633 of 2016 4 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.P1 agreement, the proper remedy is not to approach this Court in a writ petition filed under Article 226 of the Constitution of India. 7. As we have already noticed, Ext.P1 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.P1 agreement, the appellant had drawn cables through additional electric poles unauthorisedly. In Ext.P3 notice issued by the 2[nd] respondent the specific stand taken by the said respondent is that the appellant has unauthorisedly used 485 poles in Kolenchery and 82 poles in Puthenkurisu, for which he has to pay pole rental for a sum of 3,36,105/- and 56,826/-₹ ₹ respectively for the period from 2011-12 to 2015-16. In Ext.P4 reply submitted by the appellant he has admitted the W.A.No.1633 of 2016 5 unauthorised use of 485 poles in Kolenchery and 82 poles in Puthenkurisu. The appellant has also requested in Ext.P4 to regularise the unauthorised use of electric poles, by executing necessary agreement. 8. Admittedly, there is unauthorised use of electric poles by the appellant. Even if the appellant raises any factual disputes as to the number of additional electric poles unauthorisedly used by 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. 9. If the appellant intends to use the additional poles mentioned in Ext.P3 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 W.A.No.1633 of 2016 6 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 agreement. 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 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