1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5634 OF 2009 Aditya Birla Foundation, Registered Charitable Trust Chinchwad, Pune – 411 003 through its Trustees 1. Smt.Rajashree Birla, Age 64, Occu.: Industrialist, R/at : II Pallazzo Little Gibbs Road, Mumbai – 400 005. 2. Smt.Madhurika Maheshwari, Age 64, Occu.: Industrialist, R/at : Maheshwari House, 36, D. Jagmohandas Road, Mumbai – 400 026. 3. Shri Bihari Lal Shah, Age 88, Occu.: Business, R/at : Manisha, 3rd Floor, Nepeansea Road, Mumbai – 400 006. 4. Mrs.Neeraja Birla, Age 38, Occu.: Industrialist, R/at : II Pallazzo, Little Gibbs Road, Mumbai – 400 005. 5. Shri Ashwin K. Kothari, Age 67, Occu.: Industrialist, Gold Cornet, Flat No.4, 1st Floor, 11, Nowrojee Gamadia Road, Mumbai – 400 026. 6. Shri Bansi S. Mehta, Age 73, Occu.: Chartered Accountants, Bansi S. Mehta & Co., 2 having Office at Chartered Accountants 41, New Marine Lines, Mumbai – 20 Trustees 1 to 6 above, through their Power of Attorney Mr.Govind N. Maheshwari, Age 51, Occu.: Service, O/at : Aditya Birla Foundation, Chinchwad, Pune – 33 ..Petitioners. Versus Maharashtra State Electricity Transmission Company Limited, EHV CC O & M Zone, Pune Administrative Building, 3rd floor, Rastha Peth, Pune 44 ..Respondent. Mr.P.S. Dani with Mr.Sandeep Bhimekar i/by M/s.Wadia Gandhy & Co. for the petitioners. Mr.F. Devitre, senior Advocate with Mr.Farhan Dubash, Mr.Zubin Morris, Mr.Kiran Gandhi, Ms.Amodi Borkar i/by M/s.Little & Co. for the respondent. CORAM : J.P. DEVADHAR, J. DATE : 18TH JULY, 2009 ORAL JUDGMENT : 1. This writ petition is filed to challenge the order passed by the learned District Judge on 15-6-2009 in Misc. Civil Appeal No.167 of 2009, whereby the appeal has been dismissed and the order passed by the learned 6th Joint C.J.S.D., Pune in Special Civil Suit No.713 of 2009 on 7-5-2009 has been affirmed. 3 2. The petitioners are the Trustees of Aditya Birla Foundation, which is a Charitable Trust and runs a Super Speciality Charitable Hospital by acquiring 16 acres of land situated at Village Thergaon, Taluka Mulshi, District Pune (`property in question’ for short). It is not in dispute that even before the property in question was purchased by the petitioners, 132 KV single circuit line (high tension electric line) for supply of electricity to the Pune region was passing through the property in question and a tower to that effect was also constructed on the property in question even before the petitioners purchased the said property. 3. With a view to provide uninterrupted electric supply to the Pune region, a scheme has been sanctioned by the Government under which the existing single circuit line is required to be replaced by a double circuit line, so that if one line tripps, the second line becomes operational thereby ensuring uninterrupted electric supply to the region. When the scheme was sought to be implemented, the Petitioner filed Special Civil Suit No.713 of 2009 in the Court of learned C.J.S.D., Pune with an application seeking a declaration to the effect that the respondent is not entitled to enter the property in question for installing a DC line. The petitioners had also sought permanent injunction to restrain the respondent or its servants and agents from entering the property in question from installing the DC line. 4. The respondent opposed the claim of the petitioners by filing a detailed reply. After hearing both the parties, the trial Court by the impugned order dated 7-5-2009 rejected the application for injunction. Appeal filed by the petitioners against the said decision was also dismissed by the learned 4 District Judge on 15-6-2009. Hence, this petition. 5. Mr.Dani, learned counsel appearing on behalf of the petitioners submitted that both the Court’s below committed an error in rejecting the claim of the petitioners by relying upon Section 10 of the Indian Telegraph Act, 1885. He submitted that since the civil and constitutional rights of the petitioners are infringed, the petitioners had every right to approach the Court seeking relief and the Court was bound to consider the case on merits and pass appropriate orders thereon. In the present case, in view of the specific case of the petitioners that implementation of the scheme was damaging the property and things, the Courts below were duty bound to investigate the question as to whether, the action of the respondent would lead to irreconcilable and irreversible damage to the property or to the hospital standing thereon. Without investigating the above question, both the Courts below rejected the injunction application filed by the petitioners. 6. Moreover, after obtaining requisite permission, the petitioners have been constructing a helipad at a particular site on the property in question on the basis of the height of the existing tower. The helipad is intended to cater the needs of critically ill patients. If the new scheme is implemented, the height of the tower would be increased which would come in conflict with the path of landing and taking off from the said helipad and this significant aspect of the matter has been completely lost sight of by the Courts below. 7. Mr.Dani further submitted that laying a DC line would generate 5 much higher electro magnetic field which would affect the functioning of the highly sensitive instruments installed in the Hospital. Any deviation in the test results on account of electro-magnetic field would lead to wrong diagnosis which would have disastrous consequences on the patients. 8. Apart from the above, Mr.Dani submitted that the alternative proposal given by the petitioners for shifting the poles to the opposite side of the property in question (which property also belongs to the petitioners) and thereby taking all lines from that property has been rejected arbitrarily and without considering the justiciability of such arbitrary rejection, both the Courts below committed an error in declining to grant injunction and that error has resulted in miscarriage of justice. 9. I see no merit in the above contentions. As rightly contended by Mr.Devitre, learned senior Advocate for the respondent, in the present case, admittedly 132 KV high tension single circuit line has been passing through the property in question and a tower has been constructed on the property in question even before the said property was purchased by the petitioners. Thus, the petitioners have constructed the Super Speciality Hospital and installed sensitive instruments with the full knowledge of high tension single circuit line passing through the property in question. 10. The question is, whether, replacing the 132 KV single circuit line with the 132 KV double circuit line would prejudicially affect the functioning the hospital run by the petitioners ? 6 11. According to Mr.Devitre replacing the single circuit line with double circuit line would not make any difference because, in doing so there is no addition to the voltage. Except a bald denial, there is no material placed on record by the petitioners to establish to the contrary. The Courts below have recorded a finding that the adverse effect, if any, can be corrected by protecting the equipments from the adverse effect of increase of electro-magnetic field. In these circumstances, the decisions of the Courts below cannot be faulted. 12. The argument that replacing the existing single circuit line with the double circuit line and constructing a bigger tower would adversely affect construction of a helipad is also without any merit, because, irrespective of the clearances given by the various authorities, till date approval and licence has not been granted by the Director General of Civil Aviation (DGCA). In any event, in its letter dated 8-8-2006 (see page 82 of the petition), the DGCA had doubted the operational suitability of the proposed roof-top helipad in view of the fact that the site is surrounded by high tension lines on both the approaches which fall in the immediate vicinity of the site. By the said letter, the petitioners were advised to take action for removal of the high tension line existing on the plot in question. The suit is not filed for removal of the existing line, but for injunction to restrain the respondent from replacing the existing line. Therefore, having voluntarily taken a decision to construct a helipad in spite of there existing high tension line on the plot in question, the petitioners cannot find fault with the decision to replace the existing line on the ground that the said decision affects construction of a helipad. 7 13. The argument that the alternate proposal given by the petitioners has been arbitrarily rejected is also without any merit, because, from the letters at pages 75 and 97 of the petition, it is seen that the alternate proposal has been rejected on the ground that it disturbs other plot and would create right of way problems for the buildings under construction on those plots. Neither before the Courts below nor in this petition, the petitioners have placed any material to controvert the statements contained in the letters addressed by the respondent (see page 75 and 97). In these circumstances, in the absence of any material on record to disbelieve the case put forth by the respondent, the decisions of the Courts in accepting the contention of the respondent and declining to grant injunction cannot be faulted. 14. For all the aforesaid reasons, the writ petition is dismissed with no order as to costs. 15. At this stage, the learned counsel for the petitioners seeks stay of the impugned order for four weeks. Admittedly, no stay was granted at any stage of the proceedings. Moreover, it is contended by the counsel for the respondent that all the towers under the new scheme (except in the case of petitioners) have already been constructed and the entire project of great public importance is delayed because of the proceedings initiated by the petitioners. In this view of the matter, the application for stay is rejected. (J.P. Devadhar, J.)