Gujarat High Court
You Broadband India Private Limited vs Madhya Gujarat Vij Company Ltd on 9 October, 2014
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/AO/437/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 437 of 2014
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YOU BROADBAND INDIA PRIVATE LIMITED ....Appellant
Versus
MADHYA GUJARAT VIJ COMPANY LTD. ....Respondent
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Appearance:
MR HM PARIKH, ADVOCATE for the Appellant
MR PREMAL JOSHI, ADVOCATE for the Respondent
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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 09/10/2014
ORAL ORDER
1. This Court (Coram : Hon'ble Mr.Justice S.G.Shah) had, yesterday issued urgent notice, making it returnable today. The said notice reads as under.
"Notice, returnable on 09.10.2014.
Direct service is permitted. Permitted to serve by any mode, which is provided under the law.
If any cable is cut or removed by the respondents after filing of this Appeal from Order, it should be subject to the outcome of this Appeal from Order."
Page 1 of 5 C/AO/437/2014 ORDER2. Today, Mr.Premal Joshi, learned advocate states that, he has instructions to appear on behalf of the respondent Authority and he is filing his appearance during the course of the day, or by tomorrow.
3. During the course of hearing, it has transpired that, the present appellant is a Broadband Service Provider, who operates in the City of Vadodara. It is asserted, and which is not disputed, that there are approximately 28000 subscribers. The controversy broadly is that, the present appellant is having his wiring network on the poles of the respondent Electricity Company. The said situation has continued from the year 2005. The respondent Company, by the communication dated 06.08.2014, intimated the appellant that the contract shall not be renewed and he may take down the cables from the poles by 30.09.2014. This was responded by the appellant vide his letter dated 21.08.2014 inter alia contending that, due to the extensive internet cable network laid on the poles of the company, and thereby about 28000 subscribers are deriving high speed broadband internet service and the said is used for commercial, domestic and educational purposes, the present arrangement should continue, which even otherwise, as per the appellant was permissible and necessary pursuant to the agreement between the parties. The respondent replied on 24.09.2014 that the appellant may remove all cables from the poles before 30.09.2014 and make alternative arrangement. Under these circumstances, the appellant moved the Court below, invoking Section 9 of the Arbitration Act. In the said proceedings, the process is issued and it is pending consideration of the Court below. During the pendency of the said proceedings, it was prayed by the appellant that, the Page 2 of 5 C/AO/437/2014 ORDER respondent Authority be restrained from taking any coercive action taking down or cutting the cables on the poles. It is this relief which is denied by the Court below, against which this appeal is preferred.
4. On this appeal, this Court had issued urgent notice yesterday and today it is intimated that, the respondent Authority has already started taking down the wires from the poles and at some places even they have cut the wires.
5.1 Mr.Joshi, learned advocate for the respondent has made twofold submissions. Firstly it is indicated that this Appeal is not maintainable, and on merits it is submitted that, there is a policy decision pursuant to the guidelines of the Gujarat Electricity Regulatory Commission, not to give on rent the electric poles or not to continue the contract.
5.2 So far the above referred policy is concerned, the same may have some relevance and it can be placed on record by the respondent only. Mr.Joshi prays for time, to place it on record.
5.3 Even if the said policy decision is to be taken into consideration, and accepted on its face value, the respondent cannot expect the appellant to undo the infrastructure created over about a decade, over night. Further, the effect thereof is denying access to the public at large, to the internet facility, without any breathing time.
5.4 Keeping these aspects in view, this Court finds that, the appellant prima facie is entitled to interim protection. With a Page 3 of 5 C/AO/437/2014 ORDER view to see that the irreversible situation does not crop up, the respondent needs to be ordered that till next date of hearing there will not be any removal or cutting of cables / wires of the appellant on the poles of the respondent company.
6.1 It is recorded that Mr.Joshi has raised the contention against maintainability of this Appeal and in support thereof he has relied on the decision of this Court in the case of Sundram Finance Limited versus Govind Swaroop Mittal reported in 1998(2) GLH 433.
6.2 As against this Mr.Parikh has submitted that the said judgment will not have any applicability in the facts of this case, for the reason that the subject matter of this appeal is not the final judgment and/ or decree passed by the Court below, but since the process has already been issued by the on the Application filed by the present appellant, during pendency of the principal controversy before the Court below, in the facts of this case, interim protection ought to have been granted by the Court below.
6.3 So far the question of maintainability is concerned, the same shall be considered on the next date of hearing.
7. Considering the totality of the facts, more particularly what is recorded at para:5.3 above, it is ordered that till the next date of hearing, the respondent Authorities are restrained from removing or cutting the cables / wires of the appellant on the poles of the respondent company.
8. Mr.K.S.Patel, Executive Engineer of the respondent Page 4 of 5 C/AO/437/2014 ORDER Authority is present before this Court. This order is passed in his presence, and this is treated to be the service of this order.
List for further consideration on 13.10.2014.
(PARESH UPADHYAY, J.) mhdave/73 Page 5 of 5