IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1735 of 2010()
1. M/S.TATA GLOBAL BEVARAES LIMITED,(FORMER
... Petitioner
Vs
1. THE KERALA STATE ELECTRICITY BOARD.
... Respondent
2. DEPUTY CHIEF ENGINEER,
3. THE ASSISTANT EXECUTIVE ENGINEER,
4. THE EXECUTIVE ENGINEER,
5. ASSISTANT ENGINEER,
For Petitioner :SRI.JOSEPH KODIANTHARA (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :09/12/2010
O R D E R
K.M.JOSEPH & M.C.HARI RANI, JJ.
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W.A.No.1735 of 2010
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Dated, this the 9th day of December, 2010
J U D G M E N T
K.M.Joseph, J.
Appellant is the writ petitioner. The writ petition
was filed seeking to declare that the respondents are bound
by Ext.P1 agreement and they have absolutely no right to vary
or modify the agreed terms and conditions in Ext.P1
agreement unilaterally and also for a direction to comply with
Ext.P1 agreement strictly in terms of the obligation
thereunder. A writ of certiorari is also sought to quash Exts.P4,
P7, P9, P10, P17, P18, P19 and P20.
2. The appellant company entered into Ext.P1
agreement which is the Minimum Guarantee Agreement on
8.12.1993 with the Ist respondent Board for electrification of
its labour quarters and other installations. The case of the
appellant is that it is a one sided agreement. By Ext.P2 dated
9.4.1994 the appellant requested the 2nd respondent for
extending the electrical supply in terms of Ext.P1. Petitioner
again wrote on 16.7.1997 vide Ext.P3 to comply with the
WA No.1735/2010 -2-
agreement. There is no reply and it is after seven years in
2000 vide Ext.P4 the respondent informed the appellant that
the work will be started soon and the appellant was requested
to arrange for revising the Minimum Guarantee Agreement of
the work. There is reference to various correspondence
between the parties. The Board took the stand that the
amounts fixed in Ext.P1 agreement was liable for variation.
The appellant came to Court complaining that there is clear
delay on the part of the respondents in honouring the
obligations under Ext.P1 agreement and the hike in cost and
insistence of execution of revised Minimum Guarantee
Agreement whereunder the appellant is called upon to pay a
larger sum is totally unjustified.
3. The learned Single Judge took the view that it
is not a fit case for consideration under Article 226 and
relegated the appellant to pursue the remedies open to it
otherwise. It is feeling aggrieved by the above, the appellant
is before us.
4. We heard the learned counsel for the appellant
and also the learned standing counsel for the Electricity Board
WA No.1735/2010 -3-
Sri.C.K.Karunakaran.
5. Learned counsel for the appellant would submit
that the documentary evidence itself would establish that
there is delay on the part of the respondents, and, therefore
the learned Single Judge erred in relegating the appellant to
prefer civil suit.
6. Per contra, the learned standing counsel for the
Electricity Board would submit that as to what exactly the
reason for the delay are all matters which can be only
considered after oral evidence is adduced. He would also
point out that the work was taken up when it was ripe in
terms of the priority and the lines were drawn around 6 k.ms
over difficult terrain and this is not a matter which can be
decided in these proceedings.
7. In Ext.P1 Minimum Guarantee Agreement it is
inter alia stated as follows. The amount guaranteed as shown
in column five is liable to variation if the actual cost of the
work exceeds the estimated cost. The case of the Board is
that the actual cost of work has exceeded the estimated cost.
The definite question would be as to whether the increase in
WA No.1735/2010 -4-
the actual cost is attributable to the delay on the part of the
Board. In Ext.P3 the appellant had sought for out of turn
priority in terms of a Board order and the case of the Board is
that the appellant is not entitled to preference.
After having perused the documents and heard
the counsel we are of the view that the learned Single Judge
was right in relegating the appellant to pursue its remedies
elsewhere if so advised. We see no merit in the appeal.
The appeal fails and it is dismissed.
(K.M.JOSEPH)
JUDGE.
(M.C.HARI RANI)
JUDGE.
MS