Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 2330 (KER)

C. Rajan (Expired), S/o. Kanaran v. Kerala State Electricity Board Ltd.

2025-08-26

VIJU ABRAHAM

body2025
JUDGMENT : VIJU ABRAHAM, J. All these writ petitions essentially challenge the revenue recovery proceedings initiated by the respondent Kerala State Electricity Board (KSEB). Therefore, they are heard and disposed of by a common judgment. W.P.(C) No.19438 of 2022 2. The contention raised by the petitioner in this writ petition is that the petitioner has taken the KSEB poles on rent for cable TV business and immediately after the execution of the agreement with the Board, he has transferred the entire cable TV business along with the poles to one Sri.C.Rajan, who was the petitioner in W.P.(C) No.31954 of 2019. As there was default in payment of the pole rent on the part of said Sri.C.Rajan, the Board has issued notices for initiating revenue recovery proceedings against the petitioner. Petitioner would submit that on receipt of said notices, by Ext.P9 communication said Sri.C.Rajan has intimated the Board that the poles have been transferred to his name and in respect of the liability that is due to the petitioner in W.P.(C) No.19438 of 2022 he is taking responsibility and whatever amount due will be paid by him. Without considering the said request made by said Sri.C.Rajan as well as the petitioner the Board has proceeded with the revenue recovery proceedings. It is in the said circumstances that the present writ petition has been filed challenging Ext.P16 revenue recovery proceedings initiated. Over and above the contention that the poles have been transferred to Sri.C.Rajan based on an agreement the petitioner would contend that the proceedings now initiated is barred by limitation in as much as arrears of rent from 2012 have been claimed by the Board, which is impermissible. 3. A detailed counter affidavit as well as an additional counter affidavit has been filed by the Board. In the counter affidavit filed on 05.11.2024 the Board would contend that as there was pole rent arrears from the petitioner notices were issued to the petitioner and relying on clause 19 of the agreement it is the contention of the Board that the transfer, if any, to third parties without the consent of the Board is void and since the present transfer, if any, was without notice to the Board, the Board is not bound by the said transfer effected by the petitioner. Further, it is to be noted that an interim order was granted by this Court on 04.04.2023 on a condition that the petitioner remits an amount of Rs.2.5 lakhs. Challenging the same petitioner has filed W.A.No.1193 of 2023 which was subsequently dismissed. Even thereafter, the petitioner did not comply with the interim direction. The Board would further contend that the agreement is for a period of ten years and the petitioner did not renew the agreement after its expiry on 23.01.2018 and it is thereafter that the proceedings were initiated and therefore the question of limitation does not arise. W.P.(C) No.31954 of 2019 4. This writ petition is filed by one Sri.C.Rajan. It is contended that though the said Rajan expired while the writ petition was pending, no legal heirs has been impleaded. But in the place of getting impleaded in the said writ petition and contesting the matter, one of the legal heirs of said Rajan, Smt.Ranjima Rajan has filed another writ petition as W.P.(C) No.11013 of 2024, which is also being considered along with these writ petitions. In W.P.(C) No.31954 of 2019 also similar contentions were raised including a contention that the demand now raised is barred by limitation since the amount allegedly due from the petitioner is from 2010 and 2012. The further contention raised by the petitioner is that since there was arrears in payment of pole rent the cables drawn on the basis of the agreement were dismantled in 2010. Thereafter, the agreement should be deemed to have been terminated and the demand now raised is clearly barred by limitation. 5. A detailed counter affidavit has been filed in the present writ petition by the Board, mainly relying on the judgments of the Apex Court in Kerala State Electricity Board & Others v. Kurian E.Kalathil & Others, (2000) 6 SCC 293 , State of Bihar and others v. Jain Plastics and Chemicals Limited , (2002) 1 SCC 216 and the Division Bench judgment of this Court produced as Ext.R2A and contended that the scope of interference under Article 226 of The Constitution of India for granting relief in case of alleged breach of contract cannot be decided in a writ petition. It is further submitted that the contention of the petitioner that the agreement was terminated and the cables were dismantled is without any basis. It is further submitted that the contention of the petitioner that the agreement was terminated and the cables were dismantled is without any basis. As regard the agreement No.40/08-09 dated 30.09.2008 the petitioner had paid rent till 2013-2014 and he was using the entire poles allotted to him till the expiry of the agreement on 29.09.2018. The Board relying on Exts.R2B and R2C, which are letters dated 18.02.2014 and 04.03.2016 issued by the petitioner seeking extension of time for payment of the dues and for getting instalment facility for clearing the arrears, submits that if the cables were dismantled in 2010 or in 2012 as contended by the petitioner there was no occasion for the petitioner to seek for extension of time for payment of the arrears. The agreement is for ten years and on expiry of the same proceedings were initiated for recovery of the amounts due. It is further submitted that the petitioner has issued Ext.R2D letter dated 02.09.2019 even undertaking that he is liable to pay the pole rent arrears of Sri.Samad, who is the petitioner in W.P.(C) No.19438 of 2022. On the basis of the same the Board sought for dismissal of the writ petition. W.P.(C) No.11013 of 202 6. This writ petition is filed by one of the legal heirs of Sri.C.Rajan, wherein similar contentions were raised including the plea of limitation and that the cables were dismantled as early as in 2010 and 2012 for non-payment of the arrears. 7. A detailed counter affidavit has also been filed in the said writ petition. The learned standing counsel for the Board relies on Ext.R2C, which is the writ petition filed by Sri.C.Rajan along with other cable operators on 12.06.2015, wherein he has acknowledged that he is maintaining cables through the poles allotted to him by the Board against the respective agreements with the Board and admitted that petitioner’s father is maintaining 1772 poles vide one agreement and 1801 poles vide another agreement. On the basis of the same it is contended that the plea of the petitioner as well as the plea taken by her father in W.P.(C) No.31954 of 2019 that the cables have been dismantled as early as in 2010 and 2012 is without any basis. It is also contended that after the period of agreement was over, the proceedings were initiated for recovery of the amount due. 8. It is also contended that after the period of agreement was over, the proceedings were initiated for recovery of the amount due. 8. I have heard the rival contentions on both sides. 9. These writ petitions are filed essentially challenging the demand made by the Board based on the agreements executed between the parties. The plea of limitation is also raised based on the terms of the agreement executed between the parties. It was contended by the petitioner in W.P.(C) No.19438 of 2022 that though he has entered into an agreement with the Board for allotment of poles for drawing cable TV net work, the same was transferred to one Sri.C.Rajan. The contention of the Board is that even if there is any such transfer the same was without notice to the Board and the Board is not bound by such transfer and any amount due is to be paid by the petitioner in W.P.(C) No.19438 of 2022. Though the revenue recovery proceedings were challenged by Sri.C.Rajan by filing W.P.(C) No.31954 of 2019, while the said writ petition was pending consideration he passed away and thereafter that writ petition was not proceeded by any of his legal heirs, instead another writ petition was filed by one of his legal heirs as W.P.(C) No.11013 of 2024. Though contentions were raised to the effect that due to non- payment of pole rent arrears the cables were dismantled as early as in 2010 and 2012, the documents produced by the Board would reveal that the father of the petitioner in W.P.(C) No.11013 of 2024 was using the poles all through out the agreement period and the contention that the agreement has been terminated is without any basis. The plea of limitation is raised based on the terms of the agreement contending that the arrears were in the years 2010 and 2012 and the Board did not initiate any proceedings for recovery of the amount and the proceedings were initiated only in 2010. The stand of the Board is that as per the agreement, the terms of agreement is still 2010 and after the period expired, proceedings were initiated. Taking into consideration the abovesaid aspects, it is without any doubt that the issues now raised by the petitioners are essentially based on the interpretation of the terms of agreement. The stand of the Board is that as per the agreement, the terms of agreement is still 2010 and after the period expired, proceedings were initiated. Taking into consideration the abovesaid aspects, it is without any doubt that the issues now raised by the petitioners are essentially based on the interpretation of the terms of agreement. The Division Bench in Ext.R2A judgment in W.P.(C) No.31954 of 2019 has considered a similar issue which relates to the interpretation of the terms of agreement and held that when such disputed questions of facts are raised the petitioner cannot agitate the claim in a petition under Article 226 of The Constitution of India . The Division Bench relied on the judgments of the Apex Court in Kurian E.Kalathil and Jain Plastics and Chemicals Limited cases cited supra to come to the said conclusion. Taking into consideration the rival contentions on both sides, I am of the view that the issue now raised, which is purely a contractual matter, essentially relating to the interpretation of the terms of an agreement, cannot be adjudicated in a proceedings under Article 226 of The Constitution of India . In view of the same, all the writ petitions are dismissed, however granting liberty to the petitioners to avail other remedies available under law challenging the revenue recovery proceedings initiated at the instance of the Board.