IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5027 OF 2008 Shri.Bajirao Babanrao Kalokhe & Ors. ...Petitioners Versus Maharashtra State Electricity Transmission Company ...Respondents ...... Mr.Girish S.Godbole with Ms.Manjiri S.Parasnis for Petitioners. S/Shri Virendra Tulzapurkar, Sr.Counsel with F.De’Vitre, Sr.Counsel, Amit Jamsandekar, B.M.Chatterjee, Vivek Menon, Zubin Morris, Kiran Gandhi & Ms.Amodi R.Borkar i/b Little & Co. for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. JULY 17, 2008. JULY 17, 2008. JULY 17, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. I see no reason to depart from the ultimate conclusion reached by the Appellate Court in allowing the Appeal preferred by the Respondent and reversing the order passed by the Trial Court in favour of the Plaintiffs/Petitioners herein. : 2 : The conclusion of the Appellate Court can be upheld at least on two considerations. Firstly, that the Petitioners have filed Suit simplicitor for injunction and have not sought any declaration that the Scheme under which the proposed action is resorted to by the Respondent is illegal, bad in law, ultra-vires and not binding on them. To get over this position, Counsel for the Petitioners would contend that it was unnecessary for the Plaintiffs to ask for that declaration. For, the Plaintiffs were unaware about that position till the Respondent filed reply for opposing application for interim relief -Exhibit 5. It is in that reply, for the first time, Respondent took the plea that the proposed action was founded on Scheme propounded by the Respondent under Section 28 of Electricity (Supply) Act, 1948 (hereinafter referred to as ‘the Act of 1948’). According to the Petitioners, the Scheme so propounded will have to be treated as non est and of no effect, as the same has been framed on the basis of provisions which are already repealed by Electricity Act 2003. The argument though attractive, does not commend to me. Unless the Petitioners were to challenge the : 3 : validity of the Scheme and ask for appropriate declaration, cannot succeed in getting injunction as prayed in the fact situation of the present case. 3. The argument that the provisions of Section 28 of the Act of 1948 have been repealed, does not take the matter any further. This is so because the Appellate Court has rightly adverted to the Notification dated 24th August 2006 pressed into service by the Respondent before the lower Court which authorises the Respondent to exercise all the powers which the Telegraph Authority possessed with respect to placing of telegraph lines and plants under Part III of the Telegraph Act. It is not in dispute that the provisions of Telegraph Act are still in place and not superseded by any subsequent enactment. The proposed action of the Respondent can be plainly justified in terms of powers under the Telegraph Act, as has been found by the Appellate Court. That is a good reason to uphold the ultimate conclusion reached by the Appellate Court. Some error here or there committed by the Appellate Court in the reasons : 4 : cannot be the basis to exercise writ jurisdiction. As a matter of fact, the Appellate Court has analysed the matter in proper perspective to hold that the Petitioners have failed to make out any prima facie case for getting interim relief as prayed for. 4. In my opinion, the impugned order will have to be upheld also for the reason recorded by the Appellate Court that the Petitioners are the sole objectors to the execution of the Scheme which has already been substantially operated. Even larger public interest, therefore, would not permit the Court to grant interim relief as prayed by the Petitioners. The Petitioners, if so advised, may take recourse to appropriate remedy for seeking damages or compensation. In the event the Petitioners were to succeed in establishing their case that the action of the Respondent is without authority of law, the claim for damages or compensation can be considered on its own merits. 5. Hence, this Petition is dismissed. : 5 : 6. Needless to observe that if the Petitioners are entitled for any compensation in terms of the provisions of the Electricity Act, : 6 : that remedy is left open to the Petitioners. All questions in that behalf are left open. A.M.KHANWILKAR, J.