Kerala High Court
M.Samad vs Kerala State Electricity Board ... on 27 October, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 27TH DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945
WA NO. 1193 OF 2023
AGAINST THE ORDER/JUDGMENT IN WP(C) 19438/2022 OF HIGH COURT
OF KERALA
APPELLANT/PETITIONER:
M.SAMAD,
MAZHA HOUSE, PAYYOLI P.O.,
KOZHIKODE, PIN - 673522
BY ADV T.B.MINI
RESPONDENTS:
1 KERALA STATE ELECTRICITY BOARD LTD
VYDYUTHI BHAVANAM, PATTOM,
THIRUVANANTHAPURAM, PIN - 695004.
REPRESENTED BY ITS CHAIRMAN AND
MANAGING DIRECTOR, VAIDYUTHI
BHAVAN, TRIVANDRUM.
2 THE DEPUTY CHIEF ENGINEER,
ELECTRICAL DIVISION, VYDYUTHI
BHAVAN, PUTHUR, VADAKARA,
KOZHIKODE., PIN - 673104
3 THE EXECUTIVE ENGINEER,
KERALA STATE ELECTRICITY BOARD
LTD., ELECTRICAL DIVISION,
VATAKARA. KOZHIKODE., PIN - 673104
4 THE ASSISTANT EXECUTIVE ENGINEER,
KERALA STATE ELECTRICITY BOARD
LTD., ELECTRICAL DIVISION, MELADY,
KOZHIKODE., PIN - 673522
5 THE ASSISTANT ENGINEER,
THE KERALA STATE ELECTRICITY
BOARD, ELECTRICAL DIVISION,
MELADY, KOZHIKODE., PIN - 673522
W.A.No.1193 of 2023 2
6 THE DEPUTY TAHSILDAR,
MINI CIVIL STATION, KOYILANDY,
KOZHIKODE., PIN - 673305
SRI B.PREMOD - KERALA STATE
ELECTRICITY BOARD
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
15.09.2023, THE COURT ON 27.10.2023 DELIVERED THE FOLLOWING:
W.A.No.1193 of 2023 3
JUDGMENT
Sophy Thomas, J.
This is an intra court appeal under Section 5 of the High Courts
Act, 1958, at the instance of the petitioner in WP(C)No.19438 of 2022,
challenging the interim order of stay granted by the learned Single
Judge, on condition to deposit Rs.2,50,000/-.
2. The appellant filed WP(C) No.19438 of 2022 seeking a writ of
certiorari for quashing Ext.P16 demand notice dated 12.04.2022 issued
by the 6th respondent-Deputy Tahsildar. An interim relief also was sought
to stay Ext.P16 demand notice dated 12.04.2022, whereby the appellant
is required to pay an amount of Rs.7,55,791/- together with interest at
the rate of 12% per annum on the Principal amount of Rs.3,57,318/-
from 11.12.2012.
3. As per the impugned order, learned Single Judge allowed his
prayer for interim stay, subject to the condition that he shall deposit an
amount of Rs.2,50,000/- within a period of one month. Aggrieved by the
condition to deposit an amount of Rs.2,50,000/-, the writ petitioner
preferred this appeal.
4. The case of the appellant is that, he was the sole proprietor of
Malabar Net Cable Vision, a Cable TV Network in Melady, Payyoli and he
he had entered into an agreement with the KSEB on 24.01.2008 for
drawing cables through electric poles of the Board. Subsequently, he
transferred the entire right of transmission including the right to draw
the cables through the electric poles of the Board, to one Mr.C. Rajan,
with notice to the Board. In the year 2010, since there was default in
payment of rent, the Board issued notice to Mr.C. Rajan. The Board
simultaneously issued notice to the appellant also, and the appellant
brought to the notice of the Board that he had transferred the right of
transmission along with the right to draw the cables through the electric
poles of the Board, to Mr.C. Rajan. The agreement entered into between
the appellant and Mr.C. Rajan and connected documents were produced
by the appellant before the Board, but the staff of the Board failed to
make changes in the records, and that is why notice was issued to the
appellant from the Board. Though the agreement between the appellant
and the Board expired in the year 2018, the Board continues to issue
notice to the appellant and also to Mr.C. Rajan for the selfsame pole
rent. The 6th respondent-Deputy Tahsildar issued Ext.P16 notice dated
17.05.2022, intimating revenue recovery, and calling upon the appellant
to pay an amount of Rs.7,55,951/-. Then he approached this Court with
WP(C) No.19438 of 2022 and obtained the impugned conditional stay
order.
5. Heard the learned counsel for the appellant and the learned
Standing Counsel for KSEB for respondents 1 to 5 and the learned Senior
Government Pleader for the 6th respondent.
6. According to the appellant, he is not liable to pay any amount
to the 1st respondent KSEB, and if he is compelled to pay any amount as
directed by the learned Single Judge, it will amount to an admission of
his liability, which will defeat the very purpose of his writ petition.
7. Learned Standing Counsel for the Board drew our attention to
the fact that Ext.P1 agreement between the appellant and the Board was
on 24.01.2008. As per clause 15 of that agreement, the validity of that
agreement was for a period of ten years. As per clause 19 of that
agreement, the cable TV operator has no right to transfer/sell/assign his
right under the licence/sanction issued by the Board to draw Cable to
draw Cable TV to any person under any circumstances without prior
permission/sanction from the Board. In case the cable TV operator
transfers his right under the licence/sanction without the permission of
the Board, the Board has the right to revoke/cancel the licence/sanctions
issued to the Cable TV operator.
8. Admittedly, the agreement between the appellant and the
Board expired on 23.01.2018. Ext.P3 agreement between the appellant
and Mr.C.Rajan was on 19.11.2018, which was much after the expiry of
Ext.P1 agreement. Moreover, Ext.P14 letter issued by the 3rd respondent
Executive Engineer on 20.12.2021 intimating the RR proceedings
proposed against the appellant for the pole rent arrears claimed, is with
respect to agreement No.02/07-08 dated 24.01.2008, which is Ext.P1
agreement between the appellant and the Board. Ext.P14 letter further
shows that, in the agreement executed between the appellant and Mr.C
Rajan, the Board was not a party, and it was executed after the expiry of
Ext.P1 agreement. Moreover, as per clause 19 of Ext.P1 agreement, the
appellant had no right to transfer/sell/assign his right under the
licence/sanction issued by the Board.
9. Though the demand made in Ext.P16 demand notice in the
revenue recovery proceedings initiated against the appellant is for an
amount of Rs.7,55,791/-, the learned Single Judge granted stay on
condition to deposit Rs.2,50,000/- only. We find no reason to interfere
with that condition, in this intra court appeal filed under Section 5 of the
High Courts Act.
In the result, we dismiss this writ appeal, clarifying that any
deposit, made by the appellant in compliance of the impugned order
shall be subject to the outcome of the writ petition.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
SOPHY THOMAS, JUDGE
smp
