Cable Television; Baby Joseph Vs. State Electricity Board [Kerala High Court, 27-06-2016]

Constitution of India – Article 226 – Writ Petition – Kerala State Electricity Board (KSEB) – Electric Poles – Cable TV – Writ to permit cable television operators to draw cables through the electric poles – restrictive clause in the agreement which prevents the KSEB from permitting cables to be drawn through the electric poles by other Cable TV operators – agreement entered into between the KSEB and the 1 st appellant is a non-statutory contract. If that be so, the rights and liberties of the parties to the agreement are governed by the terms of the contract. If the 1st appellant has a case that there is violation of the terms of the agreement, the proper remedy is not a writ petition.

Agreement

Code of Civil Procedure, 1908 – Order XLI Rule 27 – High Court Act, 1958 (Kerala) – Section 5 – Admission of additional evidence – the appellant cannot be permitted to expand the scope of the writ petition by raising grounds which were neither urged nor pressed into service before the learned Single Judge. In the absence of any pleadings in the writ petition as to the technical feasibility or violation of any technical and safety standards, the appellants cannot be permitted raise such a contention for the first time in the writ appeal.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

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

W.A.No.1249 of 2016

Dated this the 27th June, 2016

W.P.(C).NO. 6546/2016 of HIGH COURT OF KERALA DATED 09-06-2016

APPELLANT(S)

1. BABY JOSEPH, OPERATOR, STAR TECH CABLE T.V.NETWORK, MALAYATOOR, RESIDING AT THURUTHEL HOUSE, MALAYATOOR KARA, MALAYATOOR VILLAGE, ALUVA TALUK, ERNAKULAM

2. THOMAS, OPERATOR, PERIYAR CABLE T.V.NETWORK, MALAYATOOR, RESIDING AT PARAPPILLY HOUSE, MALAYATOOR KARA, MALAYATOOR VILLAGE, ALUVA TALUK, ERNAKULAM

3. THOMAS P.A. OPERATOR, PERIYAR CABLE T.V.NETWORK, MALAYATOOR, RESIDING AT PARAPPILLY HOUSE, MALAYATOOR KARA, MALAYATOOR VILLAGE, ALUVA TALUK, ERNAKULAM

BY ADV. SMT.P.R.REENA

RESPONDENT(S)

1. KERALA STATE ELECTRICITY BOARD, REP. BY SECRETARY, VAIDHYUTHI BHAVAN, THIRUVANANTHAPURAM, PIN- 695 001

2. THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICAL CIRCLE, KSEB, PERUMBAVOOR – 683 542

3. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, PERUMBVAOOR – 683 542

4. ANEESH

R1 TO R3 BY SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD R4 & R5 BY SRI.ANIL S.RAJ

JUDGMENT

Anil K. Narendran, J.

The appellants are the petitioners in W.P.(C)No.6546/2016. The said writ petition was one filed seeking a writ of mandamus commanding respondents 1 to 3 not to permit respondents 4 and 5 or any other cable television operators to draw cables through the electric poles through which the appellants are given right to draw cables in connection with their cable TV operations as per Ext.P2 agreement. The appellants have also sought for a writ of mandamus commanding respondents 1 to 3 to consider Ext.P5 representation submitted by them forthwith.

2. The learned Single Judge by the judgment dated 09.06.2016 dismissed the writ petition holding that, if at all the petitioner has a contention that there is violation of the agreement, the proper remedy is not to approach this Court in a writ petition under Article 226 of the constitution of India. The learned Single Judge has also noticed the contention raised on behalf of the Kerala State Electricity Board that there is no restrictive clause in Ext.P2 agreement which prevents the KSEB from permitting cables to be drawn through the electric poles by other Cable TV operators. Feeling Aggrieved by the judgment of the learned Single Judge, the appellants are before this Court in this writ appeal.

3. Heard the arguments of the learned counsel for the appellants, the learned Standing Counsel for the KSEB, representing respondents 1 to 3 and also the learned counsel for respondents 4 and 5.

4. According to the appellants, they are conducting cable TV operations after drawing cables through electric poles (LT poles) maintained by the KSEB. Ext.P2 is a copy of the agreement executed between the 1 st appellant and the 3 rd respondent, by which M/s.Star Tech Cable Network, Malayattoor has been permitted to use electric poles for drawing cable TV network, subject to the conditions specified therein. Ext.P3 receipt would show the remittance made by the 1 st appellant towards pole rental and service charges.

5. The grievance in the writ petition was against steps taken by the KSEB permitting respondents 4 and 5 to draw cable network through the very same electric poles through which the 1 st appellant has drawn cable network on the strength of Ext.P2 agreement. Alleging that respondents 4 and 5 tried to cause obstruction to the cable TV operation conducted pursuant to Ext.P2 agreement, the appellants have approached the Munsiff’s Court, Aluva in O.S.No.713/2015 and obtained Ext.P4 interim injunction restraining respondents 4 and 5 herein from destroying the cables lawfully installed by the appellants, causing damage to the connections and doing anything which may cause obstruction to the functioning of channels, until further orders. Thereafter, the appellants have also moved Ext.P5 representation before the 3 rd respondent against the steps taken to permit respondents 4 and 5 to draw cables through the electric poles covered by Ext.P2 agreement.

6. In the writ petition, the case put forward by the appellants herein is that, the 1 st appellant remitted pole rental with the 3 rd respondent and executed Ext.P2 agreement to exclusively use the poles specified in the agreement to draw cables for cable TV network operations. The pole rental and other charges were remitted with the bonafide belief that electric poles can be used exclusively. If other operators are permitted to use the same poles, it would adversely affect the business prospects of the appellant.

7. It is on the strength of Ext.P2 agreement executed between the 1 st appellant and the 3 rd respondent, M/s.Star Tech Cable Network, Malayattoor has been permitted to use electric poles for drawing cable TV network, subject to the conditions specified therein. As provided in Clause 1 of Ext.P2 agreement, the specification on technical and safety standards in the guidelines set by the KSEB vide B.O.(FB)(Gl)No.443/2012 (DPCII/Asianet-2/2011) dated 25.02.2012, as amended from time to time, shall form part of the agreement and shall strictly adhered to by the 1 st appellant during initial installation and later maintenance of the cable drawn for the cable TV network through the electric poles of KSEB and for the area supplied with electricity by other licensee, viz, Thrissur Corporation, the 1 st appellant shall enter into separate agreement with that licensee. Therefore, the provisions under Ext.P2 agreement indicate that the said agreement executed between the 1 st appellant and the 3 rd respondent is in respect of drawing of the cable network of M/s.Star Tech Cable Network, Malayattoor.

8. Though it was contended in the writ petition that the 1 st appellant remitted pole rental with the 3 rd respondent and executed Ext.P2 agreement to exclusively use the poles specified in the agreement to draw cables for cable TV network operations, the recitals in Ext.P2 agreement would not show that the said agreement confers any such exclusive right on the 1 st appellant to draw electric poles specified therein. The case of the appellants that, the pole rental and other charges were remitted with the bonafide belief that electric poles can be used exclusively, supports the specific stand taken by the KSEB as to the absence of any restrictive clause in Ext.P2 agreement which prevents the KSEB from permitting cables to be drawn through those electric poles by other Cable TV operators.

9. As we have already noticed, as specified in Clause 1 of Ext.P2 agreement, the installation of cable TV network through electric poles and its maintenance are to be made in accordance with the specification on technical and safety standards in the guidelines set by the KSEB, vide Board Order dated 25.02.2012, as amended from time to time, form part of that agreement. When the installation of cable TV network through electric poles and its maintenance are governed by the technical and safety standards specified in Board Order dated 25.02.2012, no reliance can be placed on Annexure I Board Order dated 18.10.2002 or Annexure II judgment of this Court dated 06.03.2003 in O.P.No.4194/2003, produced along with the writ appeal. Similarly, Annexure III Board Order dated 25.2.2012 or Annexure IV Board Order dated 31.12.2014 will in no way support the case now put forward by the appellants as to the technical feasibility of the matter. Neither in the writ petition nor in the writ appeal the appellants have pointed out any violation of the technical and safety standards specified in Board Order dated 25.02.2012.

10. We also notice that, the writ petition contains no pleadings as to the technical feasibility or violation of any technical and safety standards in permitting another operator to draw cable network through the electric poles specified in Ext.P2 agreement. Such a case was put forward for the first time in the writ appeal, placing reliance on the additional documents produced along with I.A.No.753/2016, as Annexures I to V.

11. In an appeal filed under Section 5 of the Kerala High Court Act, 1958 admission of additional evidence is permissible, by invoking the provisions under Order XLI Rule 27 of the Code of Civil Procedure, 1908. However, such power can be exercised only in cases where the appellant has established grounds necessary for such exercise, as contemplated under Order XLI Rule 27 of the CPC. Therefore, the writ petition should contain the basic pleadings necessary for admission of such additional evidence and the appellant has also to satisfy the Court that, though such an issue was raised in the writ petition, notwithstanding the exercise of due diligence such documents were not within his knowledge or could not after the exercise of due diligence, be produced before the learned Single Judge at the time when the judgment appealed against was pronounced. This is for the reason that, in an intra-court appeal filed under Section 5 of the Kerala High Court Act, the appellant cannot be permitted to expand the scope of the writ petition by raising grounds which were neither urged nor pressed into service before the learned Single Judge. In that view of the matter, in the absence of any pleadings in the writ petition as to the technical feasibility or violation of any technical and safety standards, the appellants cannot be permitted raise such a contention for the first time in this writ appeal, placing reliance on the additional documents produced along with I.A.No.753/2016.

12. We also notice that, Ext.P2 agreement entered into between the KSEB and the 1 st appellant is a non-statutory contract. If that be so, the rights and liberties of the parties to Ext.P2 are governed by the terms of the contract. In