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S.S. Digitals Cable Networks v/s The State of Andhra Pradesh, Rep. by its Secretary, Department of Energy, A.P. Secretariat, Hyderabad & Others

    Writ Petition No. 11585 of 2015

    Decided On, 24 July 2015

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE A. RAMALINGESWARA RAO

    For the Petitioner: M. Ravindranath Reddy, Advocate. For the Respondents: GP for Energy (AP), GP for Home (AP).



Judgment Text

The petitioner is a partnership firm doing business in satellite tele-Communication within the area of Chilakaluripet Assembly Constituency. The petitioner took a portion of premises bearing door No.21-240, Maddi Mallaiah Veedhi, Police Station Road, Chilakaluripet under lease for a period of two years commencing from 01.02.2015 to 31.01.2017. The petitioner obtained permission for three phase electrical connection from the sixth respondent. It was registered as a cable operator under Section 4 of the Cable Television Networks (Regulation) Act, 1995. It also obtained requisite license under Section 15(b) of the Andhra Pradesh Entertainment Tax Act, 1939, for the period commencing from 02.03.2015 to 31.12.2015. The petitioner submitted an application to the sixth respondent on 05.02.2015 requesting for grant of permission for laying its cable wire over the existing electric poles situated in Chilakaluripet Town. It was followed by a reminder on 25.02.2015. No communication was received from the sixth respondent. However, the petitioner was orally informed that there is no procedure for grant of permission in writing and it is left to the petitioner to lay the cables through the existing electric poles and they would collect the necessary taxes. In view thereof, the petitioner laid cables through the existing electric poles in the entire town and gave cable connections to about 2000 consumers within the said Chilakaluripet Town. While so, on 01.04.2015, subordinates of the sixth respondent and the eighth respondent removed the cable wires and indiscriminately cut them. When the petitioner protested, they informed that the said action was taken at the instance of the sixth respondent. When the sixth respondent was enquired of the same, he showed a copy of the proceedings dated 31.03.2015, and challenging the same, the present Writ Petition is filed.

A counter affidavit is filed on behalf of respondent Nos.2 to 6 stating that the sixth respondent is not authorized to grant any permission for laying of cables over the existing departmental electric poles. It is admitted that the petitioner submitted a representation on 25.02.2015, but not on 05.02.2015. It was further stated that the third respondent gave clear instructions for not grating permissions for laying of cables over the electricity poles, vide letter dated 27.03.2015, which was received on 30.03.2015 by the sixth respondent. The petitioner laid cables without getting any permission from the authorities. When the sixth respondent tried to serve the notice on the petitioner on 31.03.2015, the petitioner refused to take the same. In those circumstances only, the local Police was informed of the action of the petitioner and with their assistance, wires were removed without any damage and two pieces of cable with a length of 100 metres were taken and kept in store room in the office of the sixth respondent.

The petitioner filed a reply affidavit stating that the application of the petitioner to the sixth respondent was made on 05.02.2015 and 25.02.2015 and they were forwarded to the third respondent. The third respondent rejected the request of the petitioner by letter dated 27.03.2015 and the sixth respondent did not refer to the said letter in the communication dated 31.03.2015. It is further stated in the reply that the respondents had allowed the existing cable operator to lay wires through the existing poles, but the cable wires of the petitioner were not allowed. The said action was done with an ulterior motive.

Learned Counsel for the petitioner submitted that the petitioner was discriminated in laying the cable wires by the sixth respondent, when the sixth respondent allowed the continuance of the cable wires of other cable operator. He further submitted that when in the impugned order dated 31.03.2015 the petitioner was directed to submit proof of permission for laying of cable wires, the petitioner requested for such information from other Assistant Divisional Engineers. All of them stated that no permission was granted to any of the cable operators in their area, but pole tax was being collected as per instructions in S.O.O.MS.O&M No.151, dated 25.11.2005, collecting an amount of Rs.20.00 in respect of Municipalities and Mandal Head Quarters and Rs.15.00 in respect of rural areas for each pole. He relied on a decision of the Division Bench of Orissa High Court in Variety Entertainment (Pvt.) Ltd. v. State of Orissa (AIR 2008 ORISSA 172). He also relied on an order of the Delhi Electricity Regulatory Commission in Petition No.4 of 2005 dated 06.10.2006.

Learned Standing Counsel for the respondents submitted that the petitioner cannot lay the cable wires without permission from the Department and in those circumstances only the action was taken by the concerned authorities.

Now it is admitted by both the parties that there is no law governing the issue raised in the present Writ Petition. However, as a matter of practice, the cable operators are being allowed to lay cable wires through the existing poles of the Electricity Department and fee is being collected from them, as could be seen from the information obtained by the petitioner under the Right to Information Act. The petitioner has obtained permissions from the concerned authorities for doing their business. It is not known why respondent Nos.3 to 6 are not allowing the petitioner to lay the cables, when others are permitted for the same. It appears that the APSPDCL issued S.O.O.MS.O&M No.151, dated 25.11.2005, for levying the pole fee, on the basis of which pole fee is being collected by the authorities of the respondents in respect of other areas.

The Delhi Electricity Regulatory Commission in Petition No.4 of 2005 dated 06.10.2006 was considering the issue brought in by the North Delhi Power Limited, one of the Distribution Companies of Delhi, with regard to the unauthorized use of the electricity poles by the cable operators for laying cable TV wires and taking them up to the consumer’s premises without any permission from the licensee. The Delhi Electricity Regulatory Commission issued notices to other licensees also to consider the issue. It also conducted a technical session with licensees and the issue was discussed. It noted the observations made by the High Court of Delhi in Writ Petition (Civil) No.4731 of 1996, considering an identical issue and extracted the following observations from the said order in paragraph 15 thereof which reads as follows:

'We find no statutory bar in the Indian Electricity Act and the Rules, thereunder, prohibiting DESU for leasing out its poles for supporting cable TV network. Rules 86 and 87 show that electricity poles can be used for placing on them telecommunication lines. Section 44 of the Indian Electricity Act, 1910 pressed into service by learned counsel for the petitioner in support of the contention that it rather contains prohibition for use of such poles has no applicability. No connecting work as envisaged in the Act is involved in the leasing out of the poles and therefore, Section 44(b) is not relevant for the present purpose.' The Hon’ble court further upheld that '…it is not for this court to lay down as to what amount should be charged for leasing out of the poles. The sum of Rs.500/- per pole cannot be said to be exorbitant and thereby arbitrary. The scheme also takes into account the safety aspects involved in the matter…'

'…We only refer to the decision of the Supreme Court in the case of Sher Singh Versus Union of India and others J.T.1995 (8) Supreme court 323 on the aspect of interference by the Court in the matter of Policy/scheme. The Supreme Court had held that as a matter of fact the Courts would be slow in interfering the matter of the Government Policy except where there is shown that the decision is unfair, malafide or contrary to any statutory direction. There will be no justification for the court to interfere with the policy of the Government merely on the ground of change in policy…'

Similarly, it considered the order of the Maharashtra Electricity Regulatory Commission in Case No.42 of 2005 which was to the following effect:

'allowing MSEDCL to use its poles for carrying the TV/Video cable network of cable operators would provide an opportunity to MSEDCL to earn additional revenue, which in turn, could result in reduction of the overall tariff that the consumers of MSEDCL have to pay. However, the Commission observes that it is a major safety hazard to allow such use. The Commission also observes that MSEDCL’s consumers may have to face power disruptions and outages if use of poles is allowed for supporting the cables that carry TV/Video signals from cable TV operating companies. Weighing the pros and cons of the use of MSEDCL poles for use of cable operators, the Commission has come to the conclusion that it would not be in the interest of the consumers of MSEDCL to allow the use of MSEDCL poles for supporting the cable TV/Video network of cable operators. The Commission, therefore, cannot allow MSEDCL to use its poles for carrying/supporting the cable TV/Video network of the cable operators.

Since MSEDCL by its own admission has said that its poles are being used by cable operators for running cable TV/Video networks at various places, the Commission, hereby directs MSEDCL to remove all encroachments on its poles from the cable operators immediately and avoid any untoward incidents due to it.'

It ultimately held as follows:

'The Commission is therefore, of the opinion that the poles other than the Central Verge and the HT Poles can be used for laying the cable TV network and such usage can be done by way of an agreement between the cable operator and the Licensee. Any revenue generated thereto shall be subject to the Regulations made by the Commission on the Treatment of Income from Other Business.'

In Variety Entertainment (Pvt.) Ltd’s case (supra) the Division Bench of Orissa High Court held that allowing only one cable network operator to use the electrical poles creates monopoly. It further held as follows:

'21. While the subject-matter of "use of the poles" cannot be directly relatable to carrying on business of distributor of electricity, the opposite parties 2 and 3 as distributing licensees under the Electricity Act, 2002. Yet, Clearly under Section 51 of the Electricity Act, opposite parties 2 and 3 are statutorily required to make best use of their resources in order to reduce the "wheeling charges" of electricity. Therefore, the grant of permission to cable operators on receipt of payment or use of poles is directly relatable to such statutory obligation which would consequently reduce the wheeling charges of electricity. Therefore, it cannot be said that the subject-matter for grant of right to use electric poles for payment is totally outside the scope of the Electricity Act, 2003.

22. We are of the view that the obligation cast to opposite parties 2 and 3 under Section 51 of the Electricity Act, 2003 is a statutory obligation. Even otherwise, it is well settled that whereas the Constitution of India guarantees the freedom of speech and expression, it includes thereof the right to acquire information and to disseminate it. Therefore, it is obligatory on every citizen as well as State authorities and/or statutory bodies to ensure that no impediment is caused both to the freedom of speech and expression as well as right to acquire information and to disseminate it. Therefore, any act of any statutory body authority and/or statutory licensee which acts as an impediment, falls within the scope for challenge/ consideration in writ jurisdiction under Art. 226 of the Constitution of India. Therefore, we overrule the objection of maintainability raised by the opposite parties a

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nd hold that the present writ application is maintainable.' It ultimately disposed of the Writ Petitions directing the respondents therein to make a public advertisement inviting applications from intending cable operators and as a consequence thereof, to award such contract on such terms and conditions as the State and the respondents may deem just and proper. In the instant case, it appears that the respondents are allowing the cable operators to lay the cables subject to payment of some fee pursuant to S.O.O.MS.O&M No.151, dated 25.11.2005. It is not proper for respondent Nos.3 to 6 to allow some parties and deny the benefit to other parties, as it amounts to arbitrary action. In the circumstances, this Writ Petition is disposed of directing the third respondent to reconsider the application of the petitioner for laying cable wires through the poles of the SPDCL in respect of Chilakaluripet Town pursuant to the application of the petitioner dated 05.02.2015 and 25.02.2015, and pass an order within a period of fifteen days from the date of receipt of a copy of this order in accordance with the instructions issued in S.O.O.MS.O&M No.151, dated 25.11.2005. The miscellaneous petitions pending in this Writ Petition, if any, shall stand closed. There shall be no order as to costs.
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