Kerala High Court
Cable Tv Operators Association Reg vs Kerala State Electricity Board on 25 February, 2012
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
WEDNESDAY, THE 28TH DAY OF NOVEMBER 2012/7TH AGRAHAYANA 1934
WP(C).No. 24497 of 2012 (J)
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PETITIONER(S):
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CABLE TV OPERATORS ASSOCIATION REG.
G-21, PANAMPILLY NAGAR, KOCHI 36
REPRESENTED BY ITS SECRETARY, K.V. RAJAN
BY ADVS.SRI.RENJITH THAMPAN (SR.)
SRI.V.M.KRISHNAKUMAR
SMT.P.R.REENA
SRI.M.V.ANANDAN
RESPONDENT(S):
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1. KERALA STATE ELECTRICITY BOARD,
VAIDHYTHI BHAVANAM, THIRUVANANTHAPURAM 695 004
REPRESENTED BY ITS SECRETARY
2. SECRETARY,
KERALA STATE ELECTRICITY BOARD
VAIDHYTHI BHAVANAM THIRUVANANTHAPURAM 695 004
3. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF POWER/ ELECTRICITY, SECRETARIAT
THIRUVANANTHAPURAM 695 001
R1-R2 BY ADV. SRI.JAICE JACOB,SC,KERALA STATE ELECTRICITY BOARD
R3 BY GOVERNMENT PLEADER SRI.VIJULAL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28-11-2012, ALONG WITH WP(C) NOS. 27247/2012 & 26487/2012 THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 24497 of 2012 (J)
APPENDIX
PETITIONER(S) EXHIBITS
EXT. P1 TRUE COPY OF THE ORDER DATED 25-02-2012 OF THE ELECTRICITY
BOARD
EXT. P2 TRUE COPY OF THE JUDGMENT IN WPC NO 8094/2012 DATED
12-04-2012 OF THIS HON'BLE COURT
EXT. P3 TRUE COPY OF THE ORDER DATED 10-09-2012 OF THE IST
RESPONDENT
EXT. P4 TRUE COPY OF THE GOVERNMENT ORDER, G.O (MS) 37/2008/PD
DATED 25-09-2008
EXT. P5 TRUE COPY OF THE BOARD ORDER BO. NO. 1389/2002/R & P/
PLG.V/ CABLE TV/ 2002 DATED 18-10-2002
EXT. P6 TRUE COPY OF THE ORDER ISSUED BY THE KERALA STATE
ELECTRICITY BOARD DATED 12-04-2006
EXT. P7 TRUE COPY OF THE AGREEMENT NO CTV-1/08-09 DATED 07-04-2008,
ENTERED INTO BY SHRI P.P. SURESH KUMAR
EXT. P8 TRUE COPY OF THE REPRESENTATION DATED 24-03-2012 FILED BY
THE PETITIONER BEFORE THE ELECTRICITY BOARD
RESPONDENTS' EXHIBITS
EXT. R1(A) REPORT SUBMITTED BY THE SUBCOMMITTEE DATED 17.12.2011
EXT. R1(B) DATA SHEET OF CALCULATION OF POLE RENTALS FOR DRAWING CTV
NETWORK CABLES.
/TRUE COPY/
P. A. TO JUDGE
Pn
C.K. ABDUL REHIM, J.
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W.P.(C). Nos. 24497, 26487, 27247 of 2012
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Dated this the 28th day of November, 2012
JUDGMENT
Petitioners in all these three cases are Cable T.V. Operators and Associations representing Cable T.V. Operators. They are challenging the order issued by the Kerala State Electricity Board (K.S.E.B.) dated 25.2.2012 through which an enhancement in the rate of 'pole rental' was effected, with respect to urban and semi-urban areas at Rs.311/- per pole and 50% of the above rate for rural areas, for the periods from 01.04.2011 to 31.03.2012, and for the subsequent periods at the increased rate as specified. Petitioners have approached this court on an earlier occasion challenging the enhancement. By virtue of a common judgment in WP(C) Nos. 8094 & 8360 of 2012 (Exhibit P2 in WP(C) Nos. 24497 & 27247 of 2012) and another judgment in WP(C) No. 13791/12 (Exhibit P3 in WP (C) 26487/2012) the K.S.E.B. was directed to consider the representations submitted by the petitioners and to dispose W.P.(C). Nos. 24497, 26487, 27247 of 2012 -2- of the same after affording an opportunity of hearing to the petitioners, within one month. As an interim measure this court directed the petitioners to make payment of Pole rental at the rate of Rs.250/- in urban and Rs.125/- in rural areas, till the disposal of the representations. Exhibit P3 in WP(C) Nos. 24497/2012 and 27247/2012 as well as Exhibit P4 in WP(C) No. 26487/2012 are the consequential orders issued by the K.S.E.B. The Secretary of the K.S.E.B. had declined reconsideration of the enhancement effected for reasons elaborately mentioned therein. The petitioners are challenging the impugned orders on various grounds.
2. One of the main grounds of challenge is that, inspite of specific directions issued by this court to the Kerala State Electricity Board to consider the grievances of the petitioners, the Secretary of the K.S.E.B. alone had considered the matter and issued the impugned proceedings. This according to the petitioners is against the directions issued by this court. It is further contended that, the original decision for enhancement in the rate of 'pole W.P.(C). Nos. 24497, 26487, 27247 of 2012 -3- rental' was taken by the Board and the request for reconsideration was not placed for consideration of the Board. It is not proper and justified for the Secretary of the Electricity Board to take a decision with respect to a review of the earlier decision taken by the Board. Hence on the question of propriety and also on the question of non compliance of the directions issued by this court, the impugned orders are unsustainable, is the contention.
3. Per contra, in the counter affidavit of the respondents it is contended that, pursuant to the directions issued by this court, the Secretary of the Board conducted a personal hearing in which representatives of the petitioners have participated. They have not raised any protest in the matter being considered by the Secretary. One of the petitioners have moved Contempt Case before this court alleging non compliance of the earlier judgment, in which the Secretary of the Board alone was made party. All these facts will indicate that the petitioners had no objection in the decision being taken by the Secretary. Therefore the W.P.(C). Nos. 24497, 26487, 27247 of 2012 -4- petitioners are estopped from challenging the impugned orders on the above grounds, is the contention.
4. While considering the matter, I am of the opinion that there is force in the contention raised by the petitioner. The original order enhancing the pole rental was taken by the Kerala State Electricity Board, as evidenced from Exhibit P1. Petitioners submitted representations seeking review of the decision. They approached this court and this court had directed the Board to consider their representations and to take an appropriate decision. Therefore the matter ought to have been considered by the Board itself and a decision in this regard ought to have been taken by the Board. It is evident that a personal hearing was conducted by the Secretary of the Board. But it was not proper and justified on the part of the Secretary to take a decision by himself. Inspite the Secretary ought to have placed a report of the hearing for consideration of the Board and the Board ought to have taken a decision on the matter. Since this has not been done, I am of the view that impugned order suffers W.P.(C). Nos. 24497, 26487, 27247 of 2012 -5- from impropriety as well as it does not comply with the directions issued by this court. Therefore, without expressing any opinion on the merits of the impugned order, I am inclined to remit the matter for proper decision to be taken by the Board itself.
5. Hence these writ petitions are allowed. The impugned orders, Exhibit P3 in WP(C) Nos. 24497/2012 and 27247/2012 and Exhibit P4 in WP(C) No. 26487/2012 are hereby quashed. The Secretary of the Electricity Board is directed to submit a report regarding the hearing conducted in the matter for consideration by the Board. The Board shall consider the representation submitted by the petitioner on the basis of the report of hearing which will be submitted by the Secretary. A decision in the matter shall be taken after adverting to all the materials produced by the petitioners, including notes of arguments if any submitted. The Board shall take an appropriate decision in the matter, at the earliest possible, at any rate within two months from the date of receipt of a copy of this judgment. W.P.(C). Nos. 24497, 26487, 27247 of 2012 -6-
6. Till a decision is taken by the Board as directed above, it is only just and proper to permit the petitioners to continue on the basis of the interim arrangement already made by this court in the earlier judgments. Therefore the petitioners are permitted to continue payment of 'pole rental' at the rate of Rs.250/- per pole in urban and semi urban areas and Rs.125/- per pole in rural areas.
7. It is further made clear that if the existing rate of 'pole rental' which is being paid by any of the operators is higher than the amount which is stipulated above, such operators shall continue payment of rent at the existing rate.
Sd/-
C.K. ABDUL REHIM, JUDGE /True copy/ P. A. to Judge Pn