Punjab-Haryana High Court
Bharti Telenet Limited vs Shri Subhash Jain And Ors. on 10 March, 2003
Equivalent citations: (2004)136PLR777B
Author: Nirmal Singh
Bench: Nirmal Singh
JUDGMENT Nirmal Singh, J.
1. This revision petition is directed against the order dated 30.10.2002 passed by the Additional District Judge, Panipat vide which he allowed the appeal filed by the respondents Nos. 1 to 6 and restrained the petitioner from installing/operating telephone exchange in plot No. 26, Sector 11, Phase-1, HUDA, Panipat till the final decision of the suit.
2. The relevant facts for the disposal of this petition are that the plaintiff-respondents No. 1 to 6 filed a suit for declaration with consequential relief of permanent injunction by pleading that HUDA. allotted plots in Sector 11, Panipat for residential purposes on the condition that these plots will not be used for commercial purposes. The petitioner started installing exchange in plot No. 26, Sector 11, Phase-I, Panipat. The plaintiffs- respondents No. 1 to 6, who were residents of the area, filed a suit restraining the petitioner from constructing the building for telephone exchange and also establishing the said exchange.
3. Alongwith the suit, an application under order 39 Rules 1 and 2 C.P.C. was filed for grant of ad-interim injunction. The petitioner contested the suit as well as the injunction application by pleading that it has been granted license by the Union of India for providing the basic telephone facility in the State of Haryana. The petitioner entered into an agreement with the Government of Haryana in the regard. The petitioner is providing telephone service in the State of Haryana and for that purpose the cables are being laid and equipment installed. The plaintiffs-respondents can not stall the work of providing telephone facility, which is for the benefit of public at large. The petitioner has the full authority under the Indian Telegraph Act, 1885 (hereinafter referred to as 'the Act') to undertake the work of construction/lying wires for providing telephone service. It is further pleaded that only a Remote Switching unit is required to be installed in plot No. 26 and the same will not be hurdle in any manner. It was further pleaded the one security man will be posted there for it safe keeping and no public dealing would be conducted from the said premises.
4. After hearing the learned counsel for the parties, the learned Additional Civil Judge (Senior Division), Panipat, dismissed the application under Order 39 Rules 1 and 2 C.P.C. The plaintiff-respondents filed an appeal before the learned Additional District Judge to set aside the order passed by the Additional Civil Judge (SD), Panipat and restrained the petitioner from installing/operating telephone exchange in plot No. 26, Sector 11, Phase-I, HUDA., Panipat till the decision of the suit. The petitioner was further restrained from using the said plot/building for any other purpose except for the residential use. Aggrieved by the impugned order dated 30.10.2002 passed by the appellate court, the present revision petition has been preferred.
5. Shri M.L. Sarin, learned Senior Advocate for the petitioner submitted that the order passed by the appellate court is arbitrary and perverse. He submitted that the appellate court can set aside the order if it is illegal, perverse and capricious. He further contended that while upsetting the order of the trial court, the appellate court has to give a specific finding that the order is perverse, illegal or capricious. No such finding has been recorded by the appellate court, fn support of his submissions he has relied upon Kamal Kumar Thapar v. Vinod Kumar Thapar, (1996-2)113 P.L.R. 64, Guru Nanak Education Trust v. Balbir Singh and Ors. (1995-2)110 P.L.R. 625. He further submitted that it has been held in Balco Employees Union v. Union of India, 2000(2) S.C.C. 333 that the court should be very slow in granting injunction against public projects, public schemes, and economic policies. He submitted that the petitioner - company is providing telephone service in the State of Haryana. The act of the petitioner-company is in public interest and the learned trial court has taken into consideration this fact while dismissing the application under Order 39 Rules 1 and 2 C.P.C, He further submitted that the lower appellate court while accepting the application has not taken into consideration this aspect of the case that the public interest was involved. He further submitted that the petitioner is not using the premises for commercial purposes. The petitioner-company has installed a remote Switching Equipment and the remote switching equipment has been put into a box. It will not create any nuisance to the neighbour. He further submitted that the digging of earth work for laying down the cables has been done under law and to carry out this work the Central Government has given licence to the petitioner-company and the petitioner company has entered into an agreement with the Union of India for providing telephone service to the public in Haryana. He further submitted that the Central Government has conferred the power of Telephone Authority on the petitioner under Section 19B of the Act vide notification dated May 24, 1999 for laying down the telephone cables. He further submitted that the respondents have no right under law or under equity to obstruct or to object in laying down the cables and to install the Remote Switching Equipment. He further submitted that the petitioner-company is under an obligation to perform its duty otherwise the company will commit an offence under Section 20(A) of the Act. He further contended that the order passed by the trial court has been upset by the lower appellate court on surmises and conjectures.
6. On the other hand, Shri Harkesh Munuja, Advocate and Shri Raman Gaur, Advocate have supported the impugned order passed by the learned lower appellate court and submitted that the order is perfectly legal and valid, They submitted that plot No. 26 has been allotted to the petitioner-company for residential purposes only. This plot can not be used for any other purpose except for the residential purposes. They further contended that the petitioner-company is carrying out the digging of earth work for laying the telephone cables without approval of HUDA. They contended that the HUDA. has not given any permission to install the Remote Switching Equipment in plot No. 26. They pointed out that if the HUDA. had allowed to install the same in plot No. 26 then the petitioner had a right of digging the work for laying the telephone cables. They further contended that the plot No. 26 cannot be used for commercial purposes. The activity of the petitioner-company is a commercial activity. They contended that the learned lower appellate court has rightly restrained the petitioner-company not to operate from residential premises and to do any commercial activity from the said residential premises.
7. After hearing the learned counsel for the parties arid perusing the record. I am of the considered opinion that, there is no illegality or irregularity in the impugned order passed by the learned appellate court.
8. It is case of the plaintiffs-respondents that plot No. 26 was allotted by HUDA. for residential purposes and not for the commercial purposes. Admittedly, the petitioner has not obtained any permission from HUDA. for the change of user of the plot. The learned trial court while dismissing the application for ad-interim injunction observed that in the present case public interest at large is to be kept in view and for this has also relied upon the authorities viz. Balco Employees Union v. Union of India, 2002(2) S.C.C. 333, Mahadeo Savlaram v. The Pune M.C.T.T., 1995(2) S.C.C. 504, Raunag International v. T.U.R. Constructions, 1999(1) W.C.C, 492, U.P, Avas v. Dr. N. V. Ra-jgoplan, A.I.R. 1989 Allahabad 125 and Preset v. Calcutta, A.I.R, 1996 Calcutta 305. On appraisal of the case file, I am of the view that these judicial precedents are not applicable to the facts of the present case.
9. The Apex Court in Wander Limited and Anr. v. Antox India (P) Limited, 1990(2) Arbitration Law Reporter 399 has held as under:-
"The appellate court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrary or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion."
10. Applying the ratio of this judgment, it is to be seen whether the appellate court was justified to grant injunction in favour of the plaintiffs-respondents. The appellate court kept in view the principles laid down in the case Wander Limited and Anr. (supra) while allowing the application for ad-interim injunction and observed as under:-
"There is no denying of the fact that the activities of the respondent is in the public interest but the execution of that public interest has to be within the terms and conditions of the HUDA authorities as applicable to residential sectors."
11. Mr. M.L.Sarin, learned counsel for the petitioner laid much stress that no commercial activity is to be carried out in plot No. 26 and only a remote Switching Unit is to be installed which is vital and essential for establishing network for providing basic telephone service, a publicity to the district of Panipat, Haryana. There would not be any public dealing from the said plot and it would have no adverse effect upon the inhabitants of the sectors as no harmful emissions will be released from the equipment and the submissions made by the counsel for the respondents are without any basis. The activity of the petitioner is in the public interest and in conformity with the licence. The petitioner has installed Remote Switching Unit in the site in dispute which is necessary for setting up the network for providing the telephone service.
12. The telephone service is being provided by the petitioner not free of costs but for earning profits. The contention raised by the learned counsel for the petitioner that the Remote Switching Unit installed by the petitioner shall operate without causing any obstruction and disturbing peace of the residents in the neighborhood, is without any substance. To establish the Remote Switching Unit, the petitioner had laid down the cables by digging the earth without taking the permission from HUDA. Even when a plot holder applies for a sewer connection, he has to pay certain charges for road cut but the petitioner, as it has been noticed above, did not obtain any permission from HUDA nor has deposited the charges for carrying out the work of digging the earth in the residential area. This act of the petitioner has caused obstruction in the peaceful life of the respondent No. 1 to 6 besides the other residents of the area. Even if, at any stage, the cable is damaged and is to be replaced, the earth is to be dug and the road is to be repaired but the petitioner has not deposited any amount for the same. The petitioner action is in violation of law. A person who is conducting himself in violation thereof, can be restrained not to violate the law and the court also should not come to the rescue of such persons. The trial Court while dismissing the application of the plaintiffs-respondents has not taken into consideration the essential ingredients viz. that there is no prima facie case in favour of the respondents and balance of convenience was also in their favour. The injury caused by the petitioner is such that it can not be compensated in terms of money. Therefore, the order declining the application for ad-interim injunction was perverse, capricious and against the settled principles of law. The learned appellate court has rightly set aside the order of the trial court and granted stay in favour of the respondents.
13. For the reasons mentioned above, there is no merit in this petition and the same is dismissed.
14. The observations made in this order will have no effect on the merits of the case.