IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 WP(C).No. 15854 of 2008(K) -------------------------- PETITIONER: ----------------- M/S.SKY LINK CABLE, T.V.NET WORK, A PARTNERSHIP FIRM HAVING OFFICE NEAR TO K S E B, KATTOOR, THRISSUR, REPRESENTED BY ITS MANAGING PARTNER SMT.SHAIJA NAZAR, AGED 38, W/O.NAZAR, PADIYATH KARKITAKA VALLIYIL, KATOOR, IRINJALAKUDA, THRISSUR. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS: --------------------- 1. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, IRINJALAKUDA. 2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, KATTOOR. 3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISON, KATTOOR. 4. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE SECRETARY, VAIDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC. 15854/2008. APPENDIX PETITIONER'S EXTS: EXT. P1 : A TRUE COPY OF THE AGREEMENT ENTERED INTO BY THE PETITIONER AND THE RESPONDENTS DATED 6.3.2007. EXT. P2 : A TRUE COPY OF THE COMMUNICATION BY THE FIRST RESPONDENT DATED 23.10.2007. EXT. P3 : A TRUE COPY OF THE COMMUNICATION BY THE PETITIONER DATRED 15.11.2007. EXT. P4 : A TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS DATED 9.11.2007. EXT. P5 : A TRUE COPY OF THE STATEMENT OF ACCOUNTS GIVEN TO THE PETITIONER DATED K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No. 15854 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2008 JUDGMENT Petitioner is a cable T.V. Operator. It entered into Ext.P1 agreement with the Board. Petitioner is granted permission to draw cables, making use of the electric posts. The rates are fixed as per Ext.P1 agreement. Clause 15 stipulates that the agreement shall be valid for a period of ten years with a condition that the rates will be increased by 12.5.% every year. Clauses 16 and 17 being pertinent are extracted. “16. Rent for poles for each year for the period covered under the agreement with the additional 12.5% the rent as per Clause (14) towards security deposit will have to be paid in advance. The advance for the first year shall be remitted on the date of execution of agreement in Cash/DD payment and for the succeeding years should be made on or before the 10th of the month in which the one year period expires. 17. In case of failure to remit each years rent and additional security deposit in advance interest @ 24% will be charged for the same. If the dues with interest are not remitted within three months, the agreement will be terminated, security deposit forfeited and other suitable actions as decided by the Board will be taken against the defaulted cable operator including dismantling of the cables.” WPC. 15854/2008. 2 2. According to the petitioner the agreement is valid till the year 2017. Upon the expiry of the period provided for payment, the petitioner was informed to pay the balance amount by Ext.P2 dated 23.10.2007. Petitioner sent Ext.P3 request for renewal. The petitioner also has a grievance that there are unauthorised cable T.V. Operaters drawing their lines through the electric posts which were set apart to the petitioner. It is unauthorised, complains the petitioner. Petitioner made Ext.P4 request. According to the petitioner, it is ready and willing to pay the amount. Ext.P6 is the statement served on the petitioner. Petitioner is threatened with coercive action, if the amount is not paid. It is also stated that interest is also charged. 3. Prayers in the writ petition are as follows: “i) Issue an appropriate writ, order or direction commanding the respondents to permit the petitioner to remit the poles rental as sought in Ext.P5 dehorns the interest charged, within such time as may be fixed by this Hon'ble court.” ii) Issue an appropriate writ, order or direction commanding the respondents to see that all the illegal and unauthorised cables drawn through the poles are removed immediately, concerning the poles which are the subject matter of Ext.P1 agreement, in the interests of justice.” WPC. 15854/2008. 3 4. I heard learned counsel appearing on behalf of the petitioner and Board. The question of payment of the rent is a matter which is regulated by the specific terms in Ext.P1 agreement. Clause 15 provides that there will be an increase of rates by 12.5% every year. The time at which they are to be paid are also clearly indicated. Learned counsel for the petitioner Sri.Sreekumar would no doubt contend that when the petitioner received Ext.P2 it wanted to get certain details and the petitioner was willing to pay the amount and therefore interest cannot be fastened on it under Clause 17. 5. After having gone through the agreement, I am of the view that the said contention of the petitioner may not be well founded. The period of the agreement is ten years. Clause 13 provides that if the petitioner does not make the payment in advance, the agreement will be treated as null and void. Apart from that, the exact time at which the amount of rent with the increase as stipulated in Clause 15 to be paid is specified in Clause 16. It may be true that some details were sought for in Ext.P2 for transmission. But in my view, Ext.P2 does not have the effect of postponing the time at which the liability to pay the amount in advance is fixed under Ext.P1 agreement. Ext.P1 agreement is binding on the WPC. 15854/2008. 4 petitioner as also the Board. Therefore demand for interest is well founded. However, learned counsel for the Board submits that if the petitioner is prepared to pay the entire amount as enhanced with interest, the Board is amenable to allow the agreement to continue. In the light of this submission on the part of the Board, which I record, the writ petition is disposed of as follows: If the petitioner remits the amount demanded in Ext.P5 with interest as accrued under Clause 17 till date within one week from today, the petitioner will be permitted to continue in terms of Ext.P1 agreement and the necessary documentation in this regard will be done by the first respondent. Needless to say, if the petitioner does not make the payment as aforesaid within one week from today, the respondents are free to enforce the demand and also take such action as it is empowered in law under the agreement. As far as the second prayer is concerned, it is submitted that there is an order issued by the Board, under which unauthorised drawal of line can be regularised upon payment of a sum representing thrice the rent. That Board order is not called in question in this case. But if the petitioner has any grievance in regard to unauthorised drawal of line if it is not WPC. 15854/2008. 5 permitted by the Board, it is for the petitioner to bring it to the notice of the first respondent, who will take appropriate action on the same in accordance with law. (K.M. JOSEPH, JUDGE) sb