As per case facts, Mondelez India Foods Private Limited, seeking additional power supply for its plant, obtained permissions to lay an underground HT cable. After completing 13.8 km of a ...
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12747 OF 2025
Mondelez India Foods Private Limited
(Previously known as Cadbury India
Company Ltd), a Company incorporated
under the Companies Act, 1956,
having its registered office having
its registered office at One International
Centre, 20
th
Floor, Tower 3(Wing C),
Parel, Mumbai – 400 013. ..Petitioner
Versus
1. Vishal Pansare,
Adult,Residing at Pansare Wada,
House No. 0326 Induri,
Taluka Maval, Pune – 410 507.
2. Suresh Shankar Shinde
Adult, Residing at House No. 1236,
Induri, Taluka Maval, Pune – 410 507.
3. Madhukar Shinde
Adult, Residing at House No. 0625,
Induri, Taluka Maval, Pune – 410 507.
4. Bunty Shinde
Adult, Residing at Indrayani Nagar,
House No. 1254, Ganpati Mandir,
Induri Nanoli Road, Induri,
Taluka Maval, Pune – 410 507.
5. Tanaji Tukaram Shinde
Adult, Residing at Induri,
House No. 1254, Ganpati Mandir,
Taluka Maval, Pune – 410 507.
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6. Sanrhajit Tukaram Shinde,
Adult, Residing at Induri,House No. 0280,
Taluka Maval, Pune – 410 507.
7. Dhohdiba Tukaram Pansare,
Adult Residing at Pansare Wada,
House No. 0326, Taluka Maval,
Pune – 410 507.
8. Dashrath Chilaji Shinde,
Adult, Residing at House No. 1268,
Induri, Taluka Maval, Pune – 410 507.
…Respondents
Mr. Zal Andhyarujina, Senior Advocate, with Maithili Parikh, Omar
Ahmad, Vikram Shah, Suraj Iyer and Gauri Joshi, i/b Ganesh
and Co, for the Petitioner.
Mr. Kamalesh P Mali, for the Respondents.
CORAM:N. J. JAMADAR, J.
RESERVED ON :8
th
JUNE 2026
PRONOUNCED ON :23
rd
JUNE 2026
JUDGMENT:
1.Rule. Rule made returnable forthwith, and, with the consent of
the learned Counsel for the parties, heard finally.
2.By this Petition under Article 227 of the Constitution of India, the
Petitioner takes exception to a judgment and order dated 30
th
August
2025 passed by the learned District Judge, Vadgaon Maval, Pune, in
MCA No. 18 of 2024, whereby the said Appeal preferred by the
Petitioner-Plaintiff against an order dated 12
th
July 2024 passed by the
learned Civil Judge, Vadgon Maval, Pune, in RCS No. 309 of 2023,
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thereby rejecting an Application for temporary injunction, came to be
dismissed.
3.The background facts necessary for the determination of this
Petition can be stated as under:
3.1 For the sake of convenience and clarity, the parties are hereinafter
referred to in the capacity in which they are arrayed before the trial
Court.
3.2 The Plaintiff is a company registered under the Companies Act,
1956. It is engaged in the business of manufacturing and selling
inter
alia,
confectionery and beverages. One of the manufacturing plants of
the Plaintiff is situated at Gat No. 332, 333, village Induri, Taluka
Maval, District Pune.
3.3 Defendant Nos. 1 to 8 are the residents of Induri, Pune.
3.4 The Plaintiff was in need of additional power supply. Thus the
Plaintiff submitted an Application to the Maharashtra State Electricity
Distribution Company Ltd (“MSEDCL”) seeking sanction for an
additional power supply of 4689 KV.
3.5 Upon approval by MSEDCL, the Plaintiff moved the concerned
Authorities seeking permission to lay an underground HT cable from
the MSEDCL sub-station at Talegaon to the Plaintiff’s Plant at Induri.
3.6 Upon obtaining the requisite permissions from MSEDCL, MIDC,
Zilla Parishad and the no objection certificate of the Village Panchayat,
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Induri, the Plaintiff commenced the work of laying feeder lines and the
erection of poles across a 14 km stretch between the MSEDCL Ambi
sub-station and the Plaintiff’s factory.
3.7 The Plaintiff has completed the work of laying the HT cable for
the entire stretch of 13.8 km, except for 0.2 km, i.e. about 200 meters,
as the Defendants caused an obstruction in laying of cables for the said
stretch. Unreasonable demands were allegedly made by the Defendants
to allow the Plaintiff to lay the cable over the balance portion.
3.8 The Plaintiff addressed a cease and desist notice to the
Defendants on 3
rd
November 2023. As the unlawful obstruction
persisted, the Plaintiff was constrained to institute the Suit seeking a
decree of permanent injunction to restrain the Defendants and their
agents, assigns, etc from obstructing or causing any hindrance in laying
the underground feeder line by the Plaintiff and/or its agents on the
piece and parcel of strip of land situated on the side margin of the
public/Zilla Parishad Road having a length of 230 meters abutting the
property bearing Gat No. 391, Village Induri (“the schedule property”).
3.9 In the said Suit, the Plaintiff filed an Application seeking
temporary injunction to restrain the Defendants from obstructing or
causing hindrance in the laying of underground express feeder line
through the schedule property.
3.10 The Application was resisted on behalf of the Defendants.
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3.11 The substance of the resistance of the Defendants was that the
Plaintiff is not carrying on the work of laying the express feeder line on
the Zilla Parishad road or the side margin thereof as asserted, but under
the garb of laying the cables on the side margin of the Zilla Parishad
road, the Plaintiff was attempting to lay the underground cable through
the private properties of the Defendants. The Plaintiff has not placed on
record any document to show that the land through which the Plaintiff
intends to lay the cable is the Zilla Parishad road.
3.12 It was contended that, the description of the schedule property is
incorrect. There are agricultural lands and residential houses on the
land through which the Plaintiff intends to lay the cable. Thus, the
Plaintiff has no right to lay the cable through the private properties of
the Defendants. In any event, there is an alternate efficacious remedy to
the Plaintiff under the provisions of the Electricity Act, 2003 (“the
Electricity Act”) and the Rules framed under, if the Plaintiff intends to
lay the cable through the private property. Thus, the Plaintiff did not
deserve any injunctive relief.
3.13 After appraisal of the pleadings and material on record, including
the report submitted by the Executive Engineer, Zilla Parishad, who was
appointed as a Commissioner to conduct a local inspection and submit a
report under the provisions of Order 39 Rule 7 of the Code of Civil
Procedure, 1908 (“the Code”), the learned Civil Judge held that the
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Plaintiff failed to make out a prima facie case that the strip of road
through which the Plaintiff intended to lay the cable belonged to the
Zilla Parishad, and that the elements of balance of convenience and
irreparable loss tilted in favour of the Defendants. It was further
observed that in view of the mechanism provided under Rule 3 of the
Works of Licensees Rules, 2006, the Plaintiff, in the case of resistance or
obstruction to the work of laying the cable, had an alternative
efficacious remedy of approaching the Authorities thereunder and, thus,
the bar under Section 41 of the Specific Relief Act, 1963, was attracted.
3.14 Being aggrieved, the Petitioner-Plaintiff preferred an Appeal
before the District Court.
3.15 By the impugned judgment and order, the learned District Judge
was persuaded to dismiss the Appeal finding no fault with the exercise
of discretion by the trial Court.
3.16 Thus, being further aggrieved, the Plaintiff has invoked the writ
jurisdiction of this Court.
4.I have heard Mr. Zal Andhyarujina, the learned Senior Advocate,
for the Petitioner-Plaintiff, and Mr. Kamlesh Mali, the learned Counsel
for the Respondents-Defendant No.1, at some length. The learned
Counsel took the Court through the pleadings and the material on
record.
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5.At the outset, Mr. Andhyarujina, would urge the Courts below
have singularly failed in applying the well-settled principles of law
while considering a prayer for the grant of a temporary injunction. The
material on record, according to Mr. Andhyarujina, clearly reveals that
the proposed work of laying the HT cable was almost complete. The last
leg of laying of cable for 200 meters, was unjustifiably held up by the
obstructionist approach resorted to by the Defendants.
6.Mr. Andhyarujina laid emphasis on the fact that MSEDCL and all
the concerned Authorities had granted approval/no objection for laying
the HT cable. The communication dated 21
st
November 2012 issued by
the Zilla Parishad, Pune, clearly records that permission was granted
inter alia to lay the cable at a distance of 12 meters from the center or
4.5 meters, whichever is more, from the edge of Other District Road
No. 49, i.e. Induri-Nanoli Tarf Chakan, up to the boundary of MIDC.
More than 99% of work of the laying of the cable abutting the road was
already completed. 7.In the backdrop of these facts, the learned Civil Judge as well as
the learned District Judge completely misdirected themselves in
negating the claim of the Plaintiff on wholly erroneous grounds like
permission was not obtained from the Public Works Department
(“PWD”) to whom the road was transferred. In the process, the Courts
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below lost sight of the necessity and imperativeness of the electricity
cable work.
8.Even where the electricity cables are to be laid through a private
property, which is not at all the case at hand, Mr. Andhyarujina would
urge, the licensee has the authority to lay cables through the private
land and the only right of landowner is to claim the compensation. To
this end, Mr. Andhyarujina placed a very strong reliance on the
judgment of the Supreme Court in the case of Century Rayon Limited Vs
IVP Limited And Ors
1
and a Division Bench Judgment of Telangana High
Court in the case of Jala Maisaiah And Ors Vs The Transmission
Corporation of Telangana Limited and Ors.
2
9.Mr. Andhyarujina further submitted that, the element of balance
of convenience was wholly misconstrued by the Courts below. The
entire work of laying the cable for 13.8 km has been rendered nugatory
by the unwarranted and uncalled for resistance of Defendants. In
contrast, even if it is assumed that the underground cable is laid
through the private properties, the Defendants would not suffer any loss
as the user of surface of land would not be restricted in any manner.
This factor was completely ignored by the Courts below.
10.Lastly, Mr. Andhyarujina would urge, the Plaintiff is willing to
abide by any conditions that the Court may impose in the event the
1 (2021) 20 SCC 758.
2 Writ Petition No. 132 of 2020, decided on 24
th
February 2020.
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Court restrains the Defendants from causing obstruction and permits
the Plaintiff to lay the cable for the remaining 200 meters stretch. It was
urged with tenacity that, the equities could be balanced by imposing
appropriate conditions instead of completely preventing the Plaintiff
from executing the work. An Additional Affidavit was filed on behalf of
the Petitioner giving an undertaking to comply with reasonable
directions and conditions.
11.Per contra, Mr. Kamlesh Mali, the learned Counsel for the
Respondents-Defendants, supported the impugned orders. At the
threshold it was submitted that, as the Courts below have recorded
concurrent
prima facie findings and have exercised their discretion by
ascribing justifiable reasons, this Court in exercise of its limited
supervisory jurisdiction may not interfere with the impugned orders.
12.Secondly, Mr Mali would urge, the grant of interim relief of the
nature sought by the Plaintiff would amount to the grant of final relief.
The contentious issues are yet to be adjudicated on the basis of the
evidence, that the parties may adduce. Thus, at this stage, the Court
cannot grant interim relief which partakes the character of final relief.
13.Thirdly, Mr. Mali submitted with a degree of vehemence that, the
Plaintiff has failed to demonstrate that the work of laying the
underground cable was through the Zilla Parishad road. Once such
concurrent
prima facie findings have been recorded by the trial Court
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and the District Court, the Plaintiff can only work out its remedies in
accordance with The Works of Licensees Rules, 2006. In that event, the
Plaintiff has an efficacious remedy to approach the Authorities
designated to deal with the obstruction to the cable laying work by
persons who assert proprietary rights over the property through which
the cable is proposed to be laid.
14.Lastly, Mr. Mali would urge the reliance on the judgment in the
case of Century Rayon Limited (Supra) is of no assistance to the
Plaintiff as the Plaintiff cannot be said to be a “licensee” within the
meaning of the Electricity Act 2003. The Plaintiff is essentially a
consumer and cannot equate itself with a licensee.
15.I have given anxious consideration to the rival submissions
canvassed across the bar.
16. Before adverting to the contentious issues, it may be apposite to
note few facts which by and large appear to be uncontroverted, even at
a
primfa facie consideration stage. The MSEDCL sanctioned the
additional power supply to the extent of 4689 KV vide letter dated 4
th
June 2012. The SE (PRC) MSEDCL, Pune was entrusted to work out the
details of execution of the work for the dedicated distribution facility for
extending the supply by laying 22 KV express feeder and the total cost
of the infrastructure was to be borne by the Plaintiff. Vide
communication dated 9
th
July 2012, MSEDCL accorded approval for the
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estimate along with the supervision charges fixed at the rate of 1.3%
normative charge. The Maharashtra Industrial Development
Corporation also granted permission to lay underground HT cable from
MSEDCL, Sub-Station Talegaon to the MIDC boundary, vide
communication dated 7
th
December 2012. The Zilla Parishad, Pune,
granted sanction for laying the cable abutting the Other District Road
No. 49, on 27
th
November 2012.
17.Nearer home to the dispute, a Resolution was passed in the
meeting of the Induri Village Panchayat held on 13
th
October 2021,
thereby granting permission to the Plaintiff to lay underground cable
along the Nanoli-Shiv Road to the Plaintiff’s plant subject to the
payment of the requisite charges and connecting the Village Panchayat
water distribution scheme to the said electric supply line. The Zilla
Parishad, Pune also granted permission to the Petitioner to lay the
underground cable through drilling method up to the Induri Village
border by a communication dated 23
rd
March 2023.
18.Prima facie, the Plaintiff had obtained all the requisite
permissions and no objection from the concerned authorities. It could
not be seriously controverted that the Plaintiff, on the strength of the
sanction accorded by MSEDCL, and the permissions/approvals granted
by the other Authorities has completed the work of laying the cable for
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a distance of 13.8 km and the work remains to be executed for the final
stretch of 200 meters.
19.The core controversy between the parties thus arose over the
entitlement of the Plaintiff to lay the cable for the remaining stretch. As
noted above, the thrust of the resistance on behalf of the Defendants
was that under the guise of laying cable through the margin of the road,
the Plaintiff was actually laying the cable through the private lands of
the Defendants and others.
20.The learned District Judge was of the view that the Plaintiff failed
to demonstrate that the disputed stretch at which the work was
stopped, on account of the alleged obstruction caused by the
Defendants, falls either within the margin of the road or the private
properties of the Defendants. Support was sought to be drawn to this
view from the map of the Survey Nos. (
Gat map) produced by the
Defendants which did not indicate the road flowing between Gat No.
370 and 392 to 394. Thus the learned District Judge held that there was
no
prima facie case.
21.This Court is conscious of the limits of interference with the
discretionary orders passed by the Courts and Tribunals, in exercise of
the supervisory jurisdiction under Article 227 of the Constitution of
India, especially when there are concurrent findings recorded by the
Courts below. The supervisory jurisdiction under Article 227 cannot be
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permitted to be converted into an appellate jurisdiction, in disguise. It is
not open for the High Court to re-appreciate, reweigh and review
evidence/material and take a different view of the matter. However,
where the discretion has been exercised in a totally perverse manner or
the impugned order suffers from patent illegality, it is the duty of the
High Court to interfere with such order and correct the mistake
committed by the Courts/Tribunals so as to keep them within the
bounds of their jurisdiction.
22.In the case of Rajendra Diwan Vs. Pradeep Kumar Ranibala &
Anr,
3
the Constitution Bench of the Supreme Court has exposited the
limits of the supervisory jurisdiction under Article 227 of the
Constitution of India, as under:-
“85. The power of superintendence conferred by Article
227 is, however, supervisory and not appellate. It is settled
law that this power of judicial superintendence must be
exercised sparingly, to keep subordinate courts and
tribunals within the limits of their authority. When a
Tribunal has acted within its jurisdiction, the High Court
does not interfere in exercise of its extraordinary writ
jurisdiction unless there is grave miscarriage of justice or
flagrant violation of law. Jurisdiction under Article 227
cannot be exercised “ in the cloak of an appeal in disguise”.
86. In exercise of its extraordinary power of
superintendence and/or judicial review under Articles 226
and 227 of the Constitution of India, the High Courts
3 2019 SCC OnLine SC 1586
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restrict interference to cases of patent error of law which
go to the root of the decision; perversity; arbitrariness
and/or unreasonableness; violation of principles of natural
justice, lack of jurisdiction and usurpation of powers. The
High Court does not re-assess or re-analyse the evidence
and/or materials on record. Whether the High Court would
exercise its writ jurisdiction to test a decision of the Rent
Control Tribunal would depend on the facts and
circumstances of the case. The writ jurisdiction of the High
Court cannot be converted into an alternative appellate
forum, just because there is no other provision of appeal in
the eye of the law.”
23. The question that comes to the fore is, whether the case at hand
is such that this Court would be justified in interfering with the
discretionary orders passed by the Courts below?
24.At the heart of the controversy is the character of the property,
albeit
prima facie, through which the Plaintiff proposes to lay the
underground cable. The Courts below had the benefit of the report of
the Executive Engineer, Zilla Parishad who was appointed to conduct a
local inspection and submit a report. The Report dated 22
nd
April 2024
throws light on the controversy. It indicates that the road branching out
of the State Highway No. 55 and leading to Major District Road No.
108, was initially an Other District Road No. 61 having a length of 24
km. The said ODR No. 61 was under the control of the Zilla Parishad,
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Pune. As the said road has since been upgraded to a Major District
Road, it has now been entrusted to the Public Works Department.
25.While the said road was under the control of the Zilla Parishad,
Pune, near Induri Village having a link 0/0 to 0/700, with the no
objection of the Zilla Parisahd, Pune Metropolitan Region Development
Authority constructed a concrete road having a width of 3.75 meters
and the further stretch is of tar-road. The said road is used for
transportation. The Plaintiff has completed the laying of the cable from
link No. 14/00 to link No. 0/200 aggregating to 13.80 km. The villagers
have obstructed the cable laying work for the remaining 200 meters at
link No. 0/0 to 0/200 contending that the land beneath the said road is
their private property.
26.The Executive Engineer has annexed the maps and the
photographs (pages 277 to 279). A bare perusal of the said photographs
reveals, the existence of ODR 61, branching out of State Highway No.
55. The photographs also reveal that there are structures abutting both
sides of the said road.
27.The Courts below have made an attempt to downplay the
aforesaid report of the Executive Engineer who was appointed as a
Court Commissioner. The learned Civil Judge after adverting to the
contents of the report went on to question the competence of the Zilla
Parishad to grant permission to lay the underground cable recording
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that, ODR No. 61 was entrusted to Zilla Parishad only for the purpose of
maintenance. Secondly, it was held, the Plaintiff had not obtained the
permission of the Public Works Department as the report reveals that
ODR No. 61 was transferred to the Public Works Department. Thirdly, in
the view of the learned Civil Judge, after the road construction work
was completed by PMRDA, the Plaintiff ought to have been obtained
permission from PMRDA as well.
28.Lastly, even though the existence of road appeared indisuptable,
the learned Civil Judge went on to sidestep the issue by observing that
the Plaintiff did not plead nor produce any documents to show that the
concerned Authorities had lawfully acquired the land over which the
road was laid from the persons whose property was situated on both
sides of the road.
29.The learned District Judge, on his part, attempted to dilute the
factum of the existence of the road and the clear and categorical report
of the Executive Engineer by laying emphsis to the survey map (
Gat
map)
which did not indicate the existence of the road between Gat Nos.
370 and 390.
30.In the view of this Court, both the learned Civil Judge and the
learned District Judge committed gross error in law in construing the
import of the documents and were swayed by totally irrelevant
considerations. In the process, the Courts below have ascribed reasons
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which are ex-facie perverse. It appears in an overzealous attempt to
somehow support a finding that no
prima facie case was made out, a
defence was sought to be constructed for the Defendants, which was not
borne out by the material on record. The Courts were clearly in error in
making an effort to efface the facts which stared in the face. 31.In fairness to Mr. Mali, it must be noted that, when confronted
with the record, Mr. Mali could not dispute the existence of the road on
the disputed stretch. Once, the existence of the road along which the
underground cable is to be laid is
prima facie established, the edifice of
the resistance to the laying of the cable crumbles.It would be an uphill
task for the Defendants to establish that land over which the road runs
is owned by them.
32.At any rate, the nature of the work that was being executed by
the Plaintiff, pursuant to the sanction granted by the licensee, could not
have been lost sight of by the Courts below. Even when there is material
to show that the laying of cables is proposed through the private land,
the licensee cannot be restrained from laying the cables in accordance
with the rules, and subject to the liability to pay the compensation
wherever provided .
33. The provisions contained in the Indian Telegraph Act, 1885
(“the Telegraph Act”) assumes importance. Section 10 of the Telegraph
Act, empowers the telegraph authority to place and maintain a
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telegraph line under, over, along, or across, and posts in or upon, any
immovable property, subject to the conditions under Clauses (a) to (d)
of the proviso thereto. Clause (d) of Section 10 mandates that the
telegraph authority shall do as little damage as possible in the exercise
of its powers to place and maintain telegraph lines and posts and shall
pay full compensation to all persons interested for any damage
sustained by them by reason of the existence of those powers.
34.Under Section 16(1) of the Telegraph Act, if the exercise of the
powers mentioned in Section 10 in respect of property referred to in
Clause (d) is resisted or obstructed, the District Magistrate may in his
discretion, order that the telegraph authority shall be permitted to
exercise them. Further, as per Section 16(3), a dispute as to the
sufficiency of the compensation is to be determined by the District
Judge, within whose jurisdiction the property is situated.
35.In the case of Power Grid Corporation of India Limited Vs Century
Textiles And Industries Limited and Ors,
4
with reference to the
provisions of the Telegraph Act and the Electricity Act, the Supreme
Court exposited the object of empowering the licensee to lay the
electricity transmission lines, in the following words:
“21. It is not in dispute that in exercise of powers under the
aforesaid provision, the Appropriate Government has conferred
the powers of Telegraph Authority vide notification dated
December 24, 2003 exercisable under Indian Telegraph Act, 1885
4 (2017) 5 SCC 143.
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upon the Power Grid. It may also be mentioned that a Central
Transmission Utility (CTU) is a deemed licensee under the second
proviso to Section 14 of the Electricity Act, 2003. Power Grid is a
Central Transmission Utility and is, therefore, a deemed licensee
under the Electricity Act, 2003. This coupled with the fact that
Power Grid is treated as Authority under the Indian Telegraph Act,
1885, it acquires all such powers which are vested in a Telegraph
Authority under the provisions of the Indian Telegraph Act, 1885
including power to eliminate any obstruction in the laying down
of power transmission lines. As per the provisions of the Indian
Telegraph Act, 1885 , unobstructed access to lay down telegraph
and/or electricity transmission lines is an imperative in the larger
public interest. Electrification of villages all over the country and
availability of telegraph lines are the most essential requirements
for growth and development of any country, economy and the
well-being/progress of the citizens. The legislature has not
permitted any kind of impediment/ obstruction in achieving this
objective and through the scheme of the I ndian Telegraph Act,
1885 empowering the licensee to lay telegraph lines, applied the
same, as it is, for laying down the electricity transmission lines.”
(emphasis supplied)
36. Following the aforesaid pronouncement in the case Century
Rayon Limited (Supra), on which reliance was placed by Mr.
Andhyarujina, it was enunciated that the decision in Power Grid
Corporation of India Limited (Supra) highlights the imperative and
need for unobstructed access to lay down the electricity transmission
lines in the larger public interest as these are essential requirements for
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growth and development of the country, and its economy, and for the
well being of the citizens.
37.A submissions was sought to be canvassed on behalf of the
Respondents that, in this case, the aspect of statutory empowerment of
the licensee to lay the cable does not arises as the Plaintiff was laying
the cable to obtain additional power supply for its unit, and thus it
would not be for a public purpose. At first blush, the submission appears
attractive. However, on a closer scrutiny the submission does not carry
much substance. From a perusal of the documents under which the
additional load was sanctioned, it becomes evident that to facilitate the
additional supply, a 14 km dedicated distribution facility was provided
by laying 22 KW express feeder. The cost of the said work was however
to be borne by the Plaintiff. Merely because the costs is to be incurred
by the Plaintiff, it does not imply that the said dedicated distribution
facility ceased to be the work carried out by the licensee.
38.If the licensee is empowered to provide such dedicated
distribution facility, it cannot be urged that since the facility is meant for
a particular consumer, the licensee would not be entitled to exercise its
statutory rights to lay the cable under the Telegraph Act and the
Electricity Act. A constricted view of the matter would denude the
licensee of the authority to carry out the work to advance the object of
such statutory empowerment.
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39.The view of the trial Court that the Plaintiff has an efficacious
alternate remedy under the Works of Licensees Rules, 2006 and should
approach the District Magistrate or the Commissioner of Police or any
other Officer authorized by the State Government under the proviso to
Rule 3(1);. does not appear to be correct. The proviso to Rule 3(1)
would come into play where the owner or occupier of the land or
building raises objections in respect of the works carried out by the
licensee, where it is either undisputed or indisputable that the person
raising the objection is the owner or occupier of the building or land, on
which the licensee proposes to carry out the work.
40.In the case at hand, in view of the prima facie findings that the
road exists and the cable is to be laid along the proposed road, and
conversely the absence of material to demonstrate
prima facie
ownership or occupation of the Defendants over the disputed stretch of
land, the proviso to Rule 3(1) does not seem to be attracted.
Resultantly, the prayer for injunctive relief could not have been declined
on the ground of the availability of an alternative remedy, even if one
were to assume that the remedy to approach the authorities under the
proviso to Rule 3(1) is efficacious.
41.Thus leads me to the pivotal aspect of the balance of
convenience. It is well recognized mere existence of
prima facie case is
not by itself sufficient to grant injunction. Apart from the consideration
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as to whether the refusal to grant injunction would result in “irreparable
injury”, the scale of “balance of convenience” must tilt in favour of the
party seeking injunction. The balance of convenience is an important
consideration even if there is a serious question or
prima facie case in
support of grant of injunction.
42.In the case of Hubbard And Anr Vs Vosper And Anr,
5
the Court of
Appeal, while dealing with a case of infringement of copyright,
emphasized the element of the balance of convenience in the following
words:
“ … … … In considering whether to grant an
interlocutory injunction, the right course for a Judge
is to look at the whole case. He must have regard not
only to the strength of the claim but also to the
strength of the defence, and then decide what is best
to be done. Sometimes, it is best to grant an
injunction so as to maintain the status quo until the
trial. At other times, it is best not to impose a
restraint upon the Defendant but leave him free to go
ahead.”
43. In the case of Ramakant Ambalal Choksi Vs. Harish Ambalal
Choksi
6
, the Supreme Court exposited the elements of the, “irreparable
loss” and “balance of convenience” which ought to weigh with the
Court, while exercising sound judicial discretion in granting or
5 (1972) 2 Q.B. 84.
6 2024 SCC OnLine SC 3538.
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refusing to grant injunction. The observations in Paragraph No. 34 read
as under :-
“34. The burden is on the plaintiff, by evidence aliunde
by affidavit or otherwise, to prove that there is “a prima
facie case” in his favour which needs adjudication at the
trial. The existence of the prima facie right and infraction
of the enjoyment of his property or the right is a
condition precedent for the grant of temporary
injunction. Prima facie case is not to be confused with
prima facie title which has to be established on evidence
at the trial. Only prima facie case is a substantial question
raise, bona fide, which needs investigation and a decision
on merits. Satisfaction that there is a prima facie case by
itself is not sufficient to grant injunction. The Court
further has to satisfy that non-interference by the court
would result in “irreparable injury” to the party seeking
relief and that there is no other remedy available to the
party except one to grant injunction and he needs
protection from the consequences of apprehended injury
or dispossession. Irreparable injury, however, does not
mean that there must be no physical possibility of
repairing the injury, but means only that the injury must
be a material one, namely one that cannot be adequately
compensated by way of damages. The third condition
also is that “the balance of convenience” must be in
favour of granting injunction. The Court while granting
or refusing to grant injunction should exercise sound
judicial discretion to find the amount of substantial
mischief or injury which is likely to be caused to the
parties, if the injunction is refused and compare it with
that which is likely to be caused to the other side if the
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injunction is granted. If on weighing competing
possibilities or probabilities of likelihood of injury and if
the Court considers that pending the suit, the subject
matter should be maintained in status quo, an injunction
would be issued. Thus, the Court has to exercise its sound
judicial discretion in granting or refusing the relief of ad
interim injunction pending the suit. (See : Dalpat Kumar
v. Prahlad Singh reported in (1992) 1 SCC 719 : (AIR
1993 SC 276).)
(emphasis supplied)
44.The Courts have not weighed the consequences of the refusal to
grant an injunction vis-a-vis the consequences that entail the grant of
injunction qua the Defendants in a correct perspective. As noted above,
the facts are quiet hard. The Plaintiff has completed the cable laying
work for a stretch of 13.8 km. On account of the resistance and
obstruction by the Defendants the cable could not be laid for a short
stretch of only 200 meters. The Courts below did not bestow adequate
consideration to this factor.
45. Conversely, the laying of the underground cable would hardly
cause any irretrievable damage to the disputed stretch of land even if
one were to assume that the Defendants are in the occupation of the
disputed stretch. The Plaintiff has been permitted to lay the cable by
adopting the horizontal directional drilling method.
46.In the Additional Affidavit filed on behalf of the Plaintiff, it is
averred that the Plaintiff is executing the boring work by means of
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horizontal directional drilling. It is a specialized trenchless technology
whereby drilling is carried out entirely beneath the surface of the road,
and the process is so designed and calibrated that the drilling activity
shall remain strictly confined to the designated alignment. The laying of
cable in such fashion has not caused any damage, or adverse impact to
the adjoining land parcels and the use of the land continues in the
normal course including that for agricultural use.
47.At any rate, the damage, if any, resulting from the laying of the
cable is such that it can be compensated in terms of money. In contrast,
if the Plaintiff is not allowed to lay the cable for remaining disputed
stretch of land, the entire exercise of laying the cable for 13.8 km would
be rendered nugatory.
48.These elements of the balance of convenience and irreparable loss
also bear upon the submissions canvassed on behalf of the Defendants
that the grant of an interim injunction would effectively amount to
granting final relief.
49.Ordinarily, the Court should refrain from granting interim relief
in such terms as would amount to granting final relief at an interim
stage when the matter is yet to be adjudicated, after appraisal of the
evidence that may be adduced by the parties. However, it cannot be said
that it is an immutable rule of law that such interim relief can never be
granted.
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50.Where a strong prima facie case of the present nature is made out
and the refusal to grant interim relief would amount to non-suitting the
Plaintiff at the threshold and the injury likely to be suffered by the
Plaintiff due to the refusal of the interim relief is such that it cannot be
compensated at a later stage even if the Court were to eventually decree
the suit, in such rare cases, the Court would be justified in granting
interim relief which partakes the character of final relief.
51.A useful reference in this context can be made to the judgment of
the Supreme Court in the case of Deoraj Vs State of Maharashtra &
Ors,
7
wherein the following observations were made:
“12. Situations emerge where the granting of an interim
relief would tantamount to granting the final relief itself.
And then there may be converse cases where withholding of
an interim relief would tantamount to dismissal of main
petition itself; for, by the time the main matter comes up for
hearing there would be nothing left to be allowed as relief to
the petitioner though all the findings may be in his favour. In
such cases the availability of a very strong prima facie case —
of a standard much higher than just prima facie case, the
considerations of balance of convenience and irreparable
injury forcefully tilting the balance of case totally in favour
of the applicant may persuade the Court to grant an interim
relief though it amounts to granting the final relief itself. Of
course, such would be rare and exceptional cases. The Court
would grant such an interim relief only if satisfied that
withholding of it would prick the conscience of the Court
and do violence to the sense of justice, resulting in injustice
7 (2004) 4 SCC 697.
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being perpetuated throughout the hearing, and at the end
the Court would not be able to vindicate the cause of justice.
Obviously such would be rare cases accompanied by
compelling circumstances, where the injury complained of is
immediate and pressing and would cause extreme hardship.
The conduct of the parties shall also have to be seen and the
Court may put the parties on such terms as may be prudent.”
(emphasis supplied)
52. It is true, the aforesaid principles enunciated in the case of
Deoraj (Supra) may not have universal application. One additional fact
or absence thereof may make a world of difference. However in the
facts of the case at hand, in the considered view of this Court, a very
strong
prima case for the grant of interim relief which has the trappings
of the final relief is made out. In the event of refusal to grant an
injunction restraining the Defendants from causing obstruction to the
laying of the underground cable, the loss that would be occasioned to
the Plaintiff would be plainly irreparable. At the same time, to balance
the equities, appropriate conditions can be imposed so as to facilitate
the moulding of reliefs at the final decision of the suit. If eventually the
Court come to the conclusion that, the Plaintiff was not entitled to lay
the cable through the disputed stretch of land, the Court ought to be in
a position to adequately compensate the Defendants.
53.It would thus be in the fitness of things to direct that the
underground cable be laid strictly in accordance with the permissions
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granted by the concerned Authorities and by resorting to HDD
(horizontal directional drilling) boring method with the minimum
possible damage to the land underneath which the cable is to be laid,
and direct the Plaintiff to deposit an amount of Rs.20,00,000/- before
the trial Court, by way of security for the due payment of compensation
which the Civil Court may order the Plaintiff to pay to the Defendants, if
ultimately the Plaintiff fails.
54.Hence, the following order:
: O R D E R :
(i) The Petition stands allowed.
(ii) The impugned order dated 30
th
August 2025 as well as the order
dated 12
th
July 2024 passed by the learned Civil Judge, rejecting the
Application for temporary injunction stands quashed and set aside.
(iii) The application for temporary injunction (Exhibit “5”) stands
allowed in terms of prayer clause (a) subject to the following
conditions:
(a) The work of laying underground cable shall be carried out in
scrupulous compliance with the conditions subject to which the
permissions have been granted by the concerned Authorities and by
following the HDD (horizontal directional drilling) boring method,
causing minimum possible damage to the land beneath which the cable
is proposed to be laid.
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(b) The Plaintiff shall deposit a sum of Rs.20,00,000/- before the trial
Court by way of security for the compensation which the trial Court
may award to the Defendants in the event the Plaintiff fails.
(c) The trial Court shall invest the said amount of Rs.20,00,000/- in
an interest bearing account and the said amount shall abide the final
outcome of the suit.
(d) By way of abundant caution, it is clarified that the consideration
was confined to the entitlement of the Plaintiff for temporary injunction
and any of the observations hereinabove shall not influence the final
adjudication of the suit.
(e) In the circumstances, there shall be no order as to costs.
(f) Rule is made absolute to the aforesaid extent.
[N. J. JAMADAR, J.]
ARS 29/29
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