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Judgment
S. Sankarasubban, J.—All these cases were heard together and hence they are being disposed of together, O.P. 10645 of 1997 is the leading case and the facts are described with respect to the facts in that Original Petition.
With the development in electronics and in the introduction of the Television, the tele-communication system has advanced by strides. Doordarsan was monopolising the television channel for sometime; but now private channels have come into operation for entertaining the people.
A large number of young persons have involved themselves in the business of Gable T.V. They are faced with the problem of the drawing of transmission lines, since it was found that drawing them through their own poles was causing difficulty. The Asianet Satellite Communication Ltd. was the first to approach the Kerala State Electricity Board for permission to draw their cable transmission lines through the electric posts belonging to the Electricity Board. This was approved by the Board after obtaining guidelines from the Chief Electrical Inspector. The Asianet accordingly entered into an agreement for transmission of lines throughout the State of Kerala. Besides Asianet, Supreme Cable Net Works and one more unit have entered into agreement with the Board for the said purpose. The Supreme Cable Net Works is confined to Karunagappilly area.
The petitioner in O.P. .10645 of 1997, on behalf of Sun and Stars Satellite Systems, Pendalam, approached the Electricity Board to make use of the electric poles for having transmission in the Pendalam area. Finally, the Electricity Board rejected their request by Exhibit P6 order. This is what is stated in Exhibit P6.
"Now the Board is experience great inconvenience and difficulties in maintaining their power lines due to the presence of the cable lines drawn by the T.V. Operators, in KSE Board posts. Further more, the presence of Cable T.V. lines along with the power lines of the Board in the electric posts poses a serious threat to the life of the KSE Board Staff attending to maintenance works in the power lines. :
In view of the above facts pointed out, the Board has taken up the matter with the Government for reconsideration of Government Policy in the matter of extending the facility of drawing T.V. Cables through KSE Board posts.
In the light of the above developments the Board has decided not to give new permission for drawal of cable lines or extension of the existing cable lines till Government decision is obtaining in the matter."
In the other Original Petitions, the petitioners had only approached the Electricity Board by filing representations. But, the Electricity Board had not replied to the representations. But in the wake of Exhibit P6 communication of the Board, they are afraid that their representation will also meet the same fate.
5: The counsel for the petitioners contended that the Electricity Board cannot give the benefit of using the electric posts only to the Asianet and a few other operators. According to them, eventhough nobody has got a right to make use of the poles of the Electricity Board, once the Board decided to make use its electric, poles, that should be guided by a sound policy and there should not be any discrimination. They further contended that in spite of the technical excuses that are made in Exhibit P6 and which even now exist, contracts were entered into with Asianet and others. According to them, Exhibit P6 reflects nothing but an arbitrary denial on the part of the Board to persons like the petitioners. The Electricity Board contended that it is not correct to say that they showed discrimination to any person. The Asianet was the first to approach the Electricity Board. At that time, the petitioner did not come in that field. Contract was entered into with the Asianet as per the policy evolved by the Chief Electrical Inspector. The contract expires only in 2002 and the Asianet has got the right under the contract for making use of the poles throughout - the State of Kerala. It is further contended that the contract with the Asianet also stipulates a condition or stipulates a right to the Board to annul the contract if it is found that it was causing inconvenience or threatening danger.
The learned counsel for the Asianet and Supreme Cable Net Works contended that they had entered into contracts with the Board and they are abiding by the conditions in the contract. The permission cannot be granted to the petitioners violating the terms of the agreement. The contract entered into by the Asianet with the Electricity Board is produced as Exhibit R5(b). I am quoting certain paragraphs from the agreement :
"..... the Chief Electrical Inspector (Statutes) have issued the Guidelines for laying insulated communication cables for T.V. net work in the State.
..... in view of the vest benefits that would accrue to the people of Kerala in terms of information flow through this scheme the Board has decided to permit Asianet to use its electricity distribution posts for the cable not work in the State of Kerala subject to certain conditions."
Many conditions are stated in the agreement. Condition No. 19 says that the said arrangement will be valid for ten years. Under Condition No. 20, the Board reserved its right to terminate the agreement even before the expiry of the term of agreement with one month''s notice, if the continuance of the agreement is felt to be prejudicial to the interest of the Board . The agreement with the other Cable T.V. operators were also in the same manner.
From the facts in all these cases, it is clear that only the Asianet Cable T.V. has been given the right throughout the State of Kerala. The other two persons granted have only limited areas. The petitioners who have approached this Court also prayed for permission in certain areas and not throughout the State of Kerala.
After hearing the arguments of both sides. I am of the view that it was not right on the part of the Electricity Board to reject the petition for permission as stated in Exhibit P6. They cannot now take refuse under the contention that allowing to use Electric poles will be dangerous and hence it cannot be allowed. They cannot also take the assumption that the petitioners who have approached the Electricity Board will not be able to provide or will not be able to comply with the conditions put forward by them. Further I think, with the development in the field, the Electricity Board will not be able to ignore the claims of these persons and more persons in future. In the light of the above facts, I quash Exhibit P6 in O.P. No. 10645/1997 and direct the Electricity Board to re-consider the entire question in the following way :--
(i) The Electricity Board with the guidance of the Chief Electrical Inspector will go into the question whether permission can be given to additional Cable T.V. operators to transmit their lines through the electric poles owned by the Electric Board. They can also fix the maximum number of Cable T.V. operators that can be allowed. In fixing the maximum Cable T.V. operators who can be allowed to make use of the electric poles, the Board may take into consideration the fact that many of the Cable T.V. operators are asking for operators only in small local areas. The guidelines will be prepared as to how the new Cable T.V. operators are to be accommodated.
(ii) The Board may obtain technical expertise as to the safeties and other things to be followed if the additional Cable T.V. operators are allowed to use the electric poles. They may also fix a standard for the Cable T.V. operators who will be allowed to stake their claim for such use. In case there are more number of claimants, it may also frame the guidelines on the basis of which the rights can be given.
The Electricity Board may prepare the guidelines as above with the consultation of the Government (if necessary) within a period of four months form the date of receipt of a copy of this judgment. The operators who have already been given permission will be allowed to have their rights in force in accordance with the agreements executed.
The Original Petitions are disposed of the above.