Krishankumar K.C vs Podikunju Musliar Memorial ...
2021 Latest Caselaw 21886 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
              THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                       &
                 THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
    WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
                              WA NO. 1374 OF 2021
  AGAINST THE JUDGMENT IN WP(C) 15925/2021 OF HIGH COURT OF KERALA,
                                   ERNAKULAM
APPELLANT/RESPONDENT NO.5 IN I.A. 1/2021/RESPONDENT NO.5 IN W.P.C
15925/2021:

              KRISHANKUMAR K.C.,
              AGED 50 YEARS
              S/O.CHALLAPPAN PILLAI, KRISHNAKRIPA, K K ASSOCAITES, C A
              369, KOTTARAKKARA, KOLLAM-691 506.
              BY ADV PRAVEEN K. JOY


RESPONDENTS/PETITIONER IN I.A. NO.1/2021 AND RESPONDENT     NO.1 TO 4
AND 6/PETITIONER AND RESPONDENT NO.1 TO 4 AND 6 IN WP.C.15925/2021:

     1        PODIKUNJU MUSLIAR MEMORIAL CHARITABLE AND EDUCATIONAL
              TRUST(AZEEZIA TRUST),
              MEEYANNOOR P.O., KOLLAM-691 537, REPRESENTED BY ITS
              CHAIRMAN.
     2        STATE OF KERALA,
              REPRESENTED BY SECRETARY, DEPARTMENT OF POWER AND EX-
              OFFICIO PRESIDENT, KERALA STATE ELECTRICITY LICENSING
              BOARD, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001.
     3        KERALA STATE ELECTRICITY LICENSING BOARD,
              HOUSING BOARD BUILDINGS, SANTHI NAGAR, TRIVANDRUM-695
              001, REPRESENTED BY ITS SECRETARY.
     4        CHIEF ELECTRICAL INSPECTOR,
              ELECTRICAL INSPECTORATE, HOUSING BOARD BUILDINGS, SANTHI
              NAGAR, TRIVANDRUM-695 001.
     5        ELECTRICAL INSPECTOR,
              ELECTRICAL INSPECTORATE, RAVI CHAMBERS, BEACH ROAD,
              KOLLAM-691 001.

     6        BALAGOPAL.P.,
 W.A.No.1374 of 2021                 2

             LUMANS ELECTRO SYSTEMS (CA 222), 207, 1ST FLOOR,
             VOLGA BUILDINGS, SN COLLEGE P.O., KOLLAM-691 001.

             BY ADVS.
             SRI.C.K.KARUNAKARAN FOR R1
             SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER FOR R2
             TO R5
             SMT.K.K.JYOTHILAKSHMI FOR R6
      THIS    WRIT    APPEAL   HAVING     COME   UP    FOR    ADMISSION   ON
03.11.2021,     THE    COURT   ON   THE     SAME      DAY    DELIVERED    THE
FOLLOWING:
 W.A.No.1374 of 2021                     3




                                   JUDGMENT

SHAJI P. CHALY,J.

This appeal is preferred by respondent No.5 in W.P.(C) No.15925 of

2021 filed by the 1st respondent challenging the interim order passed in

I.A.No.1 of 2021 dated 8.10.2021. The main relief sought for in the writ

petition is to quash Exhibit P1 order of the power Secretary, Government

of Kerala dated 5.7.2021, said to be passed as per the provisions of the

Kerala State Electricity Licensing Board Rules, 2020, hereinafter called,

"Rules, 2020", constituted as per section 180(1) of the Electricity Act,

2003 (Central Act 36 of 2003). Since the writ petition is pending

consideration, no opinion is expressed on the validity of Exhibit P1.

The interim relief sought for in the writ petition is as follows:

" i) Stay operation of Exhibit P1 order and'

ii) Direct the 4th respondent to consider the application of Scheme Approval submitted by the petitioner through the 6th respondent in accordance with law and de hors the condition of NOC from 5 th respondent.

2. The paramount contention advanced by the appellant is that the

2nd limb of the interim relief sought for is the 3 rd main relief in the writ

petition and therefore, without adjudicating the issues raised in the writ

petition and the counter affidavit filed by the appellant, the said relief

could not have been granted by the learned Single Judge.

3. According to the appellant, since the appellant was the contractor

originally appointed by the writ petitioner to carry out the electrical

works, No Objection Certificate (NOC) from the appellant is a mandatory

requirement in order to carry out the balance electrical works by a

subsequent contractor. The case projected by the appellant is that such

a provision is made under rule 30(5) of the Rules, 2020 for the purpose

of ensuring that the interest of the original contractor in regard to the

payment of the amounts towards the work is made to the contractor. It

is also contended that when rule 30(5) of the Rules, 2020 stipulates that

NOC is a mandatory requirement, overriding the said provision nothing

can be done and therefore, the learned Single Judge was not right in

granting the interim relief as prayed for and permitting the writ

petitioner to engage the subsequent contractor for completing the

remaining work. Other contentions with respect to the payments due to

the appellant are also raised. However, learned counsel appearing for

the writ petitioner submitted that the entire payment due was being paid

when the bill was raised, and the amount of Rs.2,88,132/- remaining

due was admitted and though offered to the appellant he has not

accepted the cheque.

4. We have heard, learned counsel for the appellant Sri.Praveen. K.

Joy, learned counsel appearing for the 1st respondent

Sri.C.K.Karunakaran, learned Senior Government Pleader Sri.K.P. Harish,

learned counsel for the 6th respondent - the subsequent contractor,

Smt.Jyothilakshmi and perused the pleadings and documents on record.

5. The sole question to be decided is whether any manner of

interference is warranted to the interim order passed by this Court. The

relevant portion of the interim order reads thus:

"2. In the writ petition, the main challenge is against Ext.P1 order passed by the Government. When this writ petition was argued in detail on 28.09.2021, this Court directed the Government Pleader to get instruction about the authority of the 1 st respondent - State to invoke the appellate power against Ext.P7 order. Today, the Government Pleader submitted that she wants to get time. The counsel for the petitioner submitted that it is a work in connection with CBSE School and urgent orders are necessary.

3. I also heard Adv.Praveen K. Joy who appeared for the 5 th respondent. The counsel for the 5th respondent submitted that the

Government has got power under Rule 7(1) (d) of the Kerala State Electricity Licensing Board Rules, 2020, which is produced as Ext.P2. Rule 7 deals about the functions of the Board. I perused Ext.P1 order. It is an order passed by the Government of Kerala and signed by the Secretary to Government under the orders of the Governor. At no stretch of imagination it can be said that it is an order passed by the Board invoking the powers under Rule 7(1)

(d). The counsel submitted that Rule 3 is about the constitution of the Board. I read Rule 3 also. Rule 3 says that the Government may by notification in the Official Gazette, constitute a Board to be called "the Kerala State purposes of exercising Hectricity Licensing Board" for the powers and performing the functions assigned to it under these rules. Rule 3(2) says that the Board shall consist of certain members which includes the Principal Secretary to Government. There are other members also in the Board. There is nothing in Ext.P1 to show that it is an order passed by the Board which consists of the members mentioned in Rule 3(2). The counsel submitted that, it is an order passed as directed by this Court. Simply because this Court directed orders in a to consider a representation and pass representation, the 1 st respondent can't invoke the appellate jurisdiction especially when the rule says that, the decision of the Secretary is binding. I think there is some force in theargument.

Prima facie I am of the opinion that Ext.P1 is passed by the Government without jurisdiction. Therefore, Ext.P1 is stayed and the interim order as prayed in this application is allowed."

6. On going through the interim order passed by the learned Single

Judge, we are of the considered opinion that it was taking note of the

illegality in Exhibit P1 order passed by the Secretary to Government that

Exhibit P1 was stayed and the consequential relief sought for by the writ

petitioner was allowed. It is to be noted that, the learned Single Judge

prima facie found that the issues raised in accordance with the Rules,

2020 is to be considered by the Board constituted under the Rules,

whereas the order was passed by the Principal Secretary to Government

and it was accordingly that prima facie Exhibit P1 impugned order was

found to be not passed in accordance with Rules, 2020. In our

considered opinion it was taking into account the facts and

circumstances and the materials available on record, the learned Single

Judge has granted the 2nd limb of the interim relief also, probably for the

reason that the work in respect of the electrification is of a School

Building which cannot be kept in limbo on a dispute raised by the

contractor originally engaged by the writ petitioner in regard to the

payments due to him.

7. Anyhow the entire aspects in regard to the implication of the

Rules, 2020 vis a vis the NOC is yet to be considered by the learned

Single Judge . We are of the considered opinion that in order to continue

with the work of electrification, the learned Single Judge thought it fit to

grant the interim relief as such , perhaps for the reason that, failing to

do so, there can be adverse consequences for conducting the School.

We do not think, appellant has made out a case for interference in the

interim order passed by the learned Single Judge, since, after

appreciating the entire facts and circumstances we could not find any

jurisdictional error or other legal infirmities in the interim order justifying

interference in an intra court appeal .

Needless to say, the writ appeal fails, accordingly it is dismissed,

leaving open the liberty of the appellant to take up all contentions in the

writ petition.

Sd/-

S. MANIKUMAR, CHIEF JUSTICE.

Sd/-

                                                    SHAJI P. CHALY,
smv                                                    JUDGE.