IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 WP(C).No. 1737 of 2008(F) ----------------------------------- PETITIONER(S): ---------------------- JAMES JOHN, S/O. JOHN MATHEW, CASINO CABLE TV NET WORKS, KULANADA P.O., PANDALAM, PATHANAMTHITTA DISTRICT. BY ADV. SRI.R.RAMADAS RESPONDENT(S): ------------------------ 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (DISTRIBUTION - SOUTH KERALA STATE ELECTRICITY BOARD, POWER HOUSE BULDG. THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, K.S.E.B. ELECTRICAL DIVISION, ADOOR. 4. THE TAHSILDAR (REVENUE RECOVERY), PATHANAMTHITTA. * ADDL.R5. IMPLEADED. ADDL.R5: STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF KERALA DEPATMENT OF RVENUE. ADDL.R5. IMPLEADED AS PER ORDER DT 5.2.2008 IN W.P.(C) NO.1737/08. ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1-3 GOVERNMENT PLEADER FOR R4-5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXHIBIT P1. TRUE COPY OF THE ORDER NO.D & RE/GL/CTV/01-02/718, DATED:21-11-2006. EXHIBIT P2. TRUE COPY OF THE LETTER DATED:15-01-2007 FROM THE EXECUTIVE ENGINEER. EXHIBIT P3.TRUE COPY OF THE LETTER FROM THE PETITIONER TO THE EXECUTIVE ENGINEER, DATED:26-01-2007 EXHIBIT P4. TRUE COPY OF THE LETTER FROM THE PETITIONER TO THE EXECUTIVE ENGINEER DATED:7-03-2007 EXHIBIT P5. TRUE COPY OF -DO-DO-- DATED:27-05-2007 EXHIBIT P6. TRUE COPY OF THE -DO-DO- - DATED:16-11-2007 EXHIBIT P7. TRUE COPY OF REGISTERED LETTER ISSUED BY ASSISTANT EXECUTIVE ENGINEER, DATED:28-11-2007 EXHIBIT P8. TRUE COPY OF REVENUE RECOVERY NOTICE ISSUED BY VILLAGE OFFICER, KULANADA, DATED:19-11-2007 //TRUE COPY// P.A.TO JUDGE P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 1737 OF 2008 -------------------------- Dated this the 14th day of February, 2011 J U D G M E N T The petitioner is a cable TV operator. He has filed this writ petition challenging the steps taken by the respondents to recover the sum of Rs.1,24,682.28/- which represents the pole rental charges and interest relating to the period from January, 2002 to December, 2007. The brief facts of the case are as follows: 2. As stated earlier, the petitioner is a cable TV operator. His application to the Kerala State Electricity Board (hereinafter referred to as 'the Board' for short) for permission to draw cable TV lines through the poles belonging to the Board, was kept pending for long. He thereupon moved this Court by filing OP No.8173 of 2002. The said original petition was disposed of by judgment delivered on 30.5.2006, with a direction to the Chief Engineer (Distribution-South), the second respondent herein to hear the petitioner and pass orders on the application in accordance with law and in the light of the ruling circulars. The Chief Engineer thereafter passed Ext.P1 order dated 21.12.2006 directing the Executive Engineer, Electrical Division, Adoor to execute the necessary agreement with the petitioner after realising the arrears of pole rental with penal interest from the year January, 2002 onwards when the petitioner commenced the operations. The Chief Engineer had in Ext.P1 set out the total number of WPC No.1737/08 2 poles through which the petitioner had drawn cable TV lines. As per the said order, the number of poles along which the petitioner had drawn cables was 82 in 2002, 139 in 2003, 196 in 2004, 314 in 2005 and 335 in 2006. Pursuant to Ext.P1 order, the Executive Engineer issued Ext.P2 letter dated 15.1.2007 calling upon the petitioner to remit the sum of Rs.1,24,682/-, which represents the arrear of pole rental, the interest thereon and also the advance rental for the year 2007. The petitioner thereupon sent Ext.P3 letter dated 26.1.2007 followed by Ext.P4 letter dated 7.3.2007 stating that he was initially using only 72 poles till 27.1.2007 and 45 poles from 5.3.2007 onwards and therefore he is not liable to pay the amount demanded in Ext.P2 letter. He thereafter sent Ext.P5 letter dated 27.5.2007 followed by Ext.P6 letter dated 16.11.2007 to the Executive Engineer, KSEB Electrical Division, Adoor contending that he is not liable to pay pole rental as claimed in Ext.P2. In Ext.P6 letter, for the first time he contended that he was using only 75 poles ever since 5.11.2002 and that the number of poles has come down to 45 and later to 27 during the year 2007. By Ext.P7 letter dated 28.11.2007, the Executive Engineer called upon the petitioner to execute an agreement with effect from 1.1.2007 for 45 poles. Shortly thereafter, Ext.P8 demand notice was served on the petitioner demanding payment of the pole rental estimated in Ext.P2. This writ petition was thereupon filed challenging Ext.P8 and WPC No.1737/08 3 seeking the following reliefs: “(a) To call for the records of the case leading up to Ext.P8 and to quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction. (b) To issue a writ of mandamus or any other appropriate writ, order or direction directing the 3rd respondent to execute necessary agreement with the petitioner in respect of 45 poles on the basis of Ext.P7, after realising the pole rentals for the actual poles used by him. (c) To issue a writ of mandamus or any other appropriate writ, order or direction directing the 3rd respondent to realise from the petitioner only the pole rentals for the actual poles used by him.” 3. The main contention raised by the petitioner is that he is not liable to pay pole rental as estimated in Ext.P2. In short his contention is that he is not bound to pay pole rental as demanded by the Board. 4. The Board has filed a counter affidavit justifying the demand made in Ext.P8. It is stated that on a site inspection the petitioner was found to have drawn cable TV lines through 82 poles in 2002, 139 poles in 2003, 196 poles in 2004, 314 poles in 2005 and 335 poles in 2006 unauthorisedly and without entering into an agreement with the Board and calculated on that basis, the petitioner was liable to pay Rs.1,24,682/- by way of arrear of pole rental charges and penal interest. 5. I heard Sri.R.Ramdas, the learned counsel appearing for the petitioner and Sri.P.P.Thajudheen, the learned standing counsel appearing for the Board. Apart from the ipsi dixit of the petitioner, there is no material WPC No.1737/08 4 on record to establish his contention that he had used only 140 poles during the period from 1.3.2002 to 4.11.2002, 75 poles from 5.11.2002 to 8.12.2002, 72 poles from 9.12.2002 to 27.1.2007, 45 poles from 5.3.2007 to 9.5.2007 and 27 poles from 10.5.2007 onwards. Even in Ext.P1 order issued by the Chief Engineer, which was issued on 21.12.2006, it is stated that the petitioner was using 82 poles in 2002, 139 in 2003, 196 in 2004, 314 in 2005 & 335 in 2006. Though the petitioner disputed the said statement and claimed that he was using only 75 poles since December 2002, in Ext.P3 letter dated 26.1.2007 sent about 10 months later, he had a different story to tell that he was using only 140 poles during the period from 1.3.2002 to 4.11.2002, 75 poles from 5.11.2002 to 8.12.2002, 72 poles from 9.12.2002 to 27.1.2007, 45 poles from 5.3.2007 to 9.5.2007 and 27 poles from 10.5.2007 onwards. A reading of Exts.P3 to P6 indicate that the petitioner has no consistent case regarding the number of poles through which he had drawn cable TV line. The petitioner has however admitted that he is catering to the needs of 300 subscribers and that he had commenced operations in the year 2002. The Chief Engineer has in Ext.P1 referred to and relied on the report submitted by the Executive Engineer in deciding upon the number of poles through which the petitioner had drawn cable TV lines in the years 2002, 2003, 2004, 2005 and 2006. The said report was furnished after a local inspection. In such WPC No.1737/08 5 circumstances, in the absence of any material to show that the said statement is factually incorrect, I am of the opinion that the petitioner cannot rely on his own assessment made in Ext.P6 letter to contend that the demand made in Ext.P2 which is sought to be enforced by Ext.P8 is without any basis. I therefore find no grounds to grant the reliefs prayed for by the petitioner. The writ petition fails and is accordingly dismissed with the observation that if the petitioner pays the amount demanded in Exts.P2 letter and P8 demand notice in four equal monthly instalments commencing from 15.3.2011 with interest, the revenue recovery proceedings initiated against him shall be kept in abeyance. P.N.RAVINDRAN, (JUDGE) vps WPC No.1737/08 6 WPC No.1737/08 7