Disposed

Binil.N.M v. Kerala State Electricity Board

Kerala HC9 Aug 2016WA/1577/2016

Case brief

AI extract

What is this about?

The High Court disposed of a writ appeal filed by a Cable TV operator against the Single Judge. The Large Bench upheld that disputes regarding unauthorised electric poles under non-statutory contracts are not adjudicable in writ jurisdiction. It reserved the right to approach the Civil Court and directed the Board to consider a representation on the number of poles without dismantling the authoris

What did the court decide?

Writ Appeal disposed of. Right to approach Civil Court reserved. Directions reiterated to allow representation on unauthorised poles before dismantling.

Binil.N.M Vs Kerala State Electricity Board — Contract and Commercial Disputes | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

¶3

TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938

¶4

WA.No. 1577 of 2016 () IN WP(C).36475/2015

¶5

AGAINST THE JUDGMENT IN WP(C) 36475/2015 of HIGH COURT OF KERALA DATED 05-07-2016

¶6

APPELLANT/PETITIONER:

¶7

BINIL.N.M. AGED 40 YEARS, S/O.MOHANAN, B&B COMMUNICATIONS CABLE TV NETWORK, ENGANDIYOOR, THRISSUR DISTRICT.

¶8

BY ADVS.SRI.V.M.KRISHNAKUMAR SMT.P.R.REENA

¶9

RESPONDENT(S)/RESPONDENTS:

¶10

KERALA STATE ELECTRICITY BOARD LIMITED REPRESENTED BY ITS SECRETARY, VAIDHYUTHI BHAVAN, THIRUVANANTHAPURAM, PIN-695 004. 2. THE CHIEF ENGINEER ELECTRICAL CIRCLE OFFICE, ERNAKULAM, PIN. 682 019. 3. EXECUTIVE ENGINEER ELECTRICAL DIVISION (WEST), K.S.E.B, THRISSUR, PIN-680 020.

¶11

ASSISTANT ENGINEER ELECTRICAL SECTION OFFICE, VADANAPPILLY, THRISSUR DIST. PIN -680 614.

¶12

BY SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD

¶13

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

¶15

¶16

W.A. No. 1577 of 2016

¶17

¶18

Dated, this the 9^th day of August, 2016

¶19

JUDGMENT

¶20

Anil K. Narendran, J.

¶21

The appellant, who is a Cable TV operator having Cable TV network within the jurisdiction of the 4^th respondent, has approached this Court in W.P.(C) No. 36475 of 2015 seeking a writ of mandamus commanding the 1^st respondent to consider and pass appropriate orders on Ext. P4 representation within a time frame, after affording an opportunity to be heard, and until then not to dismantle the cables drawn by him through the electric poles maintained by the KSEB. The appellant has also sought for a writ of mandamus commanding the respondents to conduct a site inspection, with regard to the actual number of additional poles used for drawing Cable TV net work, apart from permitting him to pay regularisation charges for the actual number of additional poles used, by paying pole rental charges on such rates as may be fixed.

¶22

The learned single Judge by Judgment dated 05.07.2016 disposed of the writ petition along with connected cases. Paras.19 and 20 of the judgment read as follows :

¶23

W.A. No.1577 of 2016 : 2 :

¶24

“ 19. Drawing 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 cables. Even according to the petitioners, they have drawn 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.

¶25

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 merit.

¶26

Having regard to the aforesaid fact situations, these writ petitions are disposed of as under :

¶27

(i) Petitioners are granted four weeks' time to enter into appropriate agreement with 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.

¶28

(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.

¶29

(iii) Right of the petitioners to approach the Civil Court to adjudicate on the disputed facts are reserved.”

¶30

W.A. No.1577 of 2016 : 3 :

¶31

Feeling aggrieved by the judgment of the learned Single Judge, the appellant is before this Court in this appeal.

¶32

We heard the learned counsel for the appellant and also the

¶33

learned Standing Counsel for the Kerala State Electricity Board, representing the respondents.

¶34

Exts.P1 and P1(a) agreements entered into between the KSEB and the appellant are non-statutory contracts. If that be so, the rights and liberties of the parties to Exts.P1 and P1(a) agreements are governed by the terms of the contract.

¶35

In Noble Resources Ltd. v. State of Orissa (2006 (10)

¶36

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 Exts.P1 and P1(a) agreements, the proper remedy is not to approach this Court in a writ petition filed under Article 226 of the Constitution of India.

¶37

As we have already noticed, Exts.P1 and P1(a) agreements

¶38

W.A. No.1577 of 2016 : 4 :

¶39

executed between the KSEB and the appellant are non-statutory contracts. Further, the pleadings and materials on record would show that, in addition to the electric poles, which are the subject matter of Exts.P1 and P1(a) agreements, the appellant had drawn cables through additional electric poles unauthorisedly. According to the appellant, he had drawn cables through 176 additional poles, as found in Ext.P2 verification report of the Assistant Engineer concerned. The appellant has also made Ext.P3 application seeking permission to use the additional poles. As per the endorsement made on Ext.P3 application by the Assistant Engineer concerned, on field verification it was found that the number of electric poles unauthorisedly used by the appellant is 941.

¶40

Admittedly, there is unauthorised use of electric poles by the appellant. The factual disputes as to the number of additional electric poles unauthorisedly used by the appellant 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.

¶41

W.A. No.1577 of 2016 : 5 :

¶42

If the appellant is having any dispute as to the number of electric poles unauthorisedly used for drawing Cable TV net work, as found in the field verification conducted by the Assistant Engineer concerned, as reflected from the endorsement made on Ext.P3, it is open for the appellant to make an appropriate representation before the 3^rd respondent in that regard, within a period of 10 days from the date of receipt of a certified copy of this judgment. If any such representation is received, the 3^rd respondent shall take an appropriate decision on the said dispute as to the number of additional poles, within a period of two weeks thereafter. Pursuant to the decision so taken, the appellant shall enter into an appropriate agreement with the Board as directed in the judgment of the learned Single Judge, within a period of two weeks thereafter, after remitting the requisite amount, demanded by the Board. 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 Exts.P1 and P1(a) agreements.

¶43