Full Judgment Text
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PETITIONER:
AMALGAMATED ELECTRICITY CO.
Vs.
RESPONDENT:
MUNICIPAL COMMITTEE, AJMER
DATE OF JUDGMENT:
25/07/1968
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
BACHAWAT, R.S.
CITATION:
1969 AIR 227 1969 SCR (1) 430
CITATOR INFO :
R 1972 SC2504 (26)
E&F 1974 SC 923 (31,32)
ACT:
Ajmer Merwara Municipalities Regulation, 1925, s.
223--Municipality fails to pay surcharge levied regarding
supply of electricity--Suit to recover--Notice under section
if necessary.
Bombay Electricity Surcharge Act (Bom..Act 19 of 1946)
ss. 3, 4 and 6--Power of Commissioner to issue
notifications levying surcharge.
Indian Electricity Act (9 of 1910) Schedule, cl.
12--Sections 3 and 4 of Bombay Act if ultra vires, cl. 12
of Schedule.
HEADNOTE:
The Ajmer Electric Supply Co. Ltd. a licensee under the
Indian Electricity Act, 1910, entered into two contracts
with the respondent-Municipal Committee, (i) for supplying
electricity for street lighting, and (ii) pumping water from
the wells belonging to the respondent at a particular place.
The Bombay Electricity Surcharge Act, 1946, was extended to
the province of Ajmer Metwar subject to certain
modifications. Thereafter, the Ajmer Electric Supply Co.
applied under s. 3 of the Bombay Act, to the Chief
Commissioner, for imposing the surcharge provided in that
section, to meet its increased cost. The Chief Commissioner
issued a notification and on the basis of that notification
the Ajmer Electric Supply Co. called upon the respondent by
a notice, to pay the surcharge detailed therein with respect
to the two contracts. As the respondent did not comply with
the demand, the appellant, with which the Ajme’r Electric
Supply Company was amalgamated, filed a suit for the
recovery of the surcharge.
The trial Court decree.d the suit but the High Court set
aside the decree on the grounds: (1) Before filing the suit
a notice as required by s. 233 of the Ajmer Metwar
Municipalities Regulation, 1925, was not given; (2) The
Commissioner’s notification imposing the impugned surcharge
was beyond the provisions of the Bombay Act, because of the
omission of certain words from s. 6 of that Act as extended
to Ajmer Merwara; and (3) The relevant provisions of the
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Bombay Act. namely, ss. 3 and 4 were ultra vires el. 12 of
the Schedule to the Indian Electricity
In appeal to this Court,
HELD: (1) No notice under s. 233 of the Ajmer Merwar
Municipalities Regulation was necessary before instituting
the suit. [438 E]
Under the section a notice is necessary when the suit is
filed against the Committee only in respect of any act done
in its official capacity. The expression ’act’ includes an
illegal omission; but. before an omission can be considered
as an illegal omission, it must be shown that there was an
omission to discharge some official duty imposed in public
interest. That is the non-discharge of the duty must amount
to an illegality entailing penal consequences. [436 B, G]
In the present case, the appellant’s contention was that
it was entitled to recover from the respondent the amount of
surcharge claimed, while the respondent’s case was a
bonafide contention, namely, that the levy of
431
surcharge was invalid. Under the Regulation it was the duty
of the respondent to di’scharge all its liabilities, but
failure to do so would not ordinarily make it an illegal
omission, because, the respondent or its members or office
hearers could not be punished for their failure to pay the
amount due to the appellant. [436 D-G]
Revati Mohan Das v. Jitendra Mohan Ghosh, 61 I.A. 171,
applied.
Debendra Nath Roy v. Official Receiver, A.I.R. 1938
Cal. 191 approved.
Bhagchand Dagdusa Gujrathi v. Secretary of State for
India, 54 I.A. 338. distinguished.
(2) The provisions of s. 3 of the Bombay Act empower the
Chief Commissioner to levy surcharge on the bills for the
supply of electricity for street lighting. Section 4
empowers the licensec to collect from the consumer the
surcharge levied. Municipal councils are not excluded from
the operation of ss. 3 and 4 of the Act as extended to Ajmer
Metwar.Similarly, electrical energy supplied on the basis of
a contract is not excluded from the operation of s. 3. For
taking action on the basis of those sections no assistance
is needed from s. 6, and so, s. 6 as it stood originally or
as modified does not in any manner cut down the operation of
as. 3 and 4. Therefore, the High Court was Wrong in its
decision that the notification issued by the Chief
Commissioner levying surcharge on the price of electrical
energy supplied for street lighting was without the
authority of law. [440 C-E, H; 441 A]
(3) Since ’Electricity’ is a concurrent subject, the
Bomhay Legislature was competent to provide for the levy of
surcharge so long as the relevant provision did not conflict
with any provision in any Central Act.Clause 12 of the
Schedule to the Indian Electricity Act, which is deemed to
form part of the licence under s. 3(f) of the Electricity
Act, does not conflict with ss. 3 and 4 of the Bomhay Act.
The clause merely prescribes a procedure for settling the
price of electricity supplied by the licensec for street
lighting and lays down the machinery for settling the price
if there is a dispute between the contracting parties. It
o.nly means that the licensee cannot dictate its terms to
the authority responsible for street lighting, but does not
fix the price to be paid or even the maximum price payable.
It imposes no fetters on the powers of the Provincial
Legislature in the matter of enhancing the price of
electricity supplied by the licensec for street lighting.
The High Court was, therefore, wrong in holding that by
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incorporating cl. 12 into the licenee the Central
Legislature intended that under no circumstances the
liability of the consumer can be increased heyond what was
agreed during the continuance of the contract. [441 H; 442
A-D]
(4) Under the notification imposing surcharge, the
appellant, however, was not entitled to get any additional
sum as regards the pumping of water. Under the notification
surcharge is levied on the price of electrical energy
supplied under a contract. In construing a contract it must
be read as a whole. So read, under the second contract, the
appellant only undertook to pump water from the wells and
not to supply any electricat energy. [442 E-F, H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 706 of 1965.
432
Appeal from the judgment and decree dated September
22, 1964 of the Rajasthan High Court in D.B. First Appeal
No. 67 of 1956.
Purshottam Trikamdas and 1. N. Shroff, for the appellant.
B.D. Sharma, for the respondent.
The Judgment of the Court was delivered by
Hegde, J. This is plaintiff’s appeal. The Amalgamated
Electricity Co. Ltd. is the plaintiff in the suit from which
this appeal arises. It sued the Municipal Committee, Ajmer
through its Chairman in suit No. 21 of 1951 in the court of
Sub Judge, first class, Ajmer. In that suit it claimed a
sum of Rs. 93,520/2/1 as Surcharge due under certain
notifications issued by the Chief Commissioner of Ajmer.
Out of the said sum, a sum of Rs. 28,837/12/5 was
claimed as being due as SUrcharge on the bills issued by it
in respect of the electricity supplied by it to the
defendant for street lighting. A sum of Rs. 58,143/12/2 was
claimed as Surcharge on its bills in respect of the
electricity utidised for pumping water in pursuance of one
of its contracts with the defendant. The balance amount was
claimed as interest on the amount claimed. That suit was
resisted by the defendant on various grounds. The trial
court substantially allowed the plaintiff’s claim and
decreed the suit in a sam of Rs. 44,461/11/9 with interest
and proportionate costs. The High Court of Rajasthan
accepting the appeal (No. 67 of 1956) of the defendant
dismissed the plaintiff’s suit. After obtaining a
certificate under Art. 133(1) (a) of the Constitution, the
plaintiff has filed this appeal.
The High Court of Rajasthan dismissed the plaintiff’s
suit on two grounds namely (1 ) that before filing the suit,
no notice as required by s. 233 of the Ajmer .Merwara
Municipalities Regulation, 1925 has been given and (2) the
notification of the Commissioner imposing the impugned
Surcharge is either beyond the scope of the provisions of
Bombay Electricity Surcharge Act, 1946 (Bombay Ac’t 19 of
1946) (to be hereinafter referred to as the Bombay Act) as
extended to Ajmer by the Central Government in pursuance of
the powers conferred on it under the Ajmer Merwar (Extension
of Laws) Act, 1947 or in the alternative the provisions of
the Bombay Act are ultra vires cl. 12 of the .schedule to
the Indian Electricity Act, 1910 (to be hereinafter referred
to as the Electricity Act).
In view of the above findings the other pleas taken by
the d,efendant were not examined. We have to see whether
the decision of the High Court is in accordance with law.
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The material facts of the case are as follows:
A company known as Trustees Corporation (I) Ltd. took out
license from the Chief Commissioner of Ajmer on 19-1-1928
433
under the provisions of the Electricity Act authorising it
to geneate and supply electrical energy within the municipal
limits of Ajmer and such extensions beyond those limits as
may be permitted by the Chief Commissioner from time to time
in accordance with the conditions mentioned in the licence
(Exh. 1 ). Someime later the said company transferred all
its rights and liabilities, Ajmer Electric Supply Co.,
Ltd. The Ajmer Electric Supply Co. Ltd. was later
amalgamated with the plaintiff’s company as. ber the scheme
of transfer approved by the Bombay High Court. Fhe Ajmer
Electric Supply Co. Ltd. had en’tered into an agreenent
(Exh. 20) on 31-3-1932 with the Municipal Committee, Ajmer
for supplying electricity for street lighting and
maintaining the street lighting equipments. By another
agreement (Exh. 21 ) dated 15-3-1939, it undertook to pump
water from the wells belonging to Municipal Committee at
Bhaonta.
On September 3, 1948, the Governmen’t of India in
exercise of the powers conferred on it by s. 2 of Ajmer
Merwar (Extension of Laws) Act, 1947, extended the Bombay
Act to the province of Ajmer Merwar subject to certain
modifications. That notification among other modifications
omitted the words "or in any contract for energy or for
maintenance of street lighting equipment" found in s. 6
of the Bombay Act. The other modifications made are not
relevant for our present purpose. After the extension of
the Bombay Act to Ajmer Merwar the Ajmer Electric SuppLy
Co., Ltd., applied under s. 3 of the Bombay Act to the
Chief Commissioner for imposing Surcharge as provided in
that section to meet its increased cost. On September 19,
1948, the Chief Commissioner directed that the Bombay Act
as modified shall apply to two undertakings including Ajmer
Electric Supply Co. Ltd., Ajmer. There was another
notification on September 19, 1948 but that is not relevant
for our present purpose. On March 29, 1949, the Chief
Commissioner issued the notification herein set out below in
substitution of the notification issued by him on September
19, 1948.
"CHIEF COMMISSIONER’S OFFICE, AJMER.
No. 6/5/48-LSG. Dated Ajmer, the 29th
March, 1949.
To be substituted for the notification bearing the same
number and date.
Orders by the Chief Commissioner, Ajmer Merwara.
NOTIFICATION
No. F/8-4-II(CC)-H. Dated Ajmer, the 19th
September 1948.
434
In exercise of the powers conferred by sub-sec. (2) of
sec. 3 of the Bombay Electricity (Surcharge) Act 1946 (XIX
of 1946) as extended to the Ajmer Merwara by the Government
of India, Minis’try of Home Affairs Notification No. 8/9/48-
Judicial dated the 3rd September 1948, and in accordance
with the recommendations made by the Electricity Advisory
Board constituted by him under sec. 35 of the Indian
Electricity Act, 1910, the Chief Commissioner, is pleased to
fix for a period of two years from the date of this
Notification, the following rates of surcharge on the
charges for energy leviable by the Ajmer and Beawar Electric
Supply Companies :--
(1 ) For supplies made under standard tariffs:
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(i) Ajmer Electric Supply Co. Ltd., Ajmer 20%
(ii) Beawar Electric Supply Co., Ltd., Beawar
15%
(2 ) For supplies made under special
contracts, other than those made with
Municipal Committee for street lighting.
Ajmer Electric Supply Co., Ltd. Ajmer
and Beawar Electric Supply Co., Ltd.,
Beawar.--0.007 of an anna per unit (Kw. hour)
per rupee increase in the price of oil beyond
the basic price of Rs. 90/- per ton.
(3 ) For supplies for Municipal Street
Lighting made under special contracts
Ajmer Electrictiy Co., Ltd., Ajmer,
Beawar Electric Supply Co., Ltd., Beawar.--O.
128 of an anna per month per each rupee
advance in price of fuel oil beyond the basic
price of Rs. 90/- per ton for each 60 wattage
lamp and prorate for lower and higher wattage
lamps.
The surcharge is leviable on the actual
energy consumed and not on the standing
charges of motors and meters.
By order
Sd/- A.N. Lal
Secretary to the Chief Commissioner,
Ajmer Merwara."
On the basis of that notification the Ajmer Electric Supply
Co., Ltd. called upon the defendant by means of a lawyers’
notice dated 16-8-1951 to pay the surcharge detailed
therein. As the defendant did not comply with the demand
made, the plaintiff after the amalgamation men.tioned
earlier instituted the present suit.
435
It is not necessary to deal with the various pleas taken
by the defendant in resisting the plaintiff’s suit. Some
of those pleas have been given up; some have not been
considered by the High Court. The plaintiff’s suit has been
dismissed by the High Court solely on the grounds mentioned
above. If the plaintiff succeeds satisfying this Court
that the view taken by the High Court is wrong then the
matter will have to go back to the High Court for decision
on questions left undecided.
We shall first take up the question of notice under s.
233 of Ajmer Merwar Municipalities Regulation. The
contention of the defendant is that the notice issued is
invalid inasmuch as the same was issued on behalf of the
Ajmer Electric Supply Co. Ltd. after that company was
amalgamated with the plaintiff. The next ground of attack
is that the said notice is invalid because it does not set
out the name and the place of abode of the intending
plaintiff. These contentions have commended themselves to
the learned Judges of the High Court. Section 233 of the
Ajmer Merwar Municipality Regulation prescribes:
"Section 233:Suits against Committee
or its officers. No suit shall be instituted
against a Committee, or against any member,
officer or servant of a Committee, in respect
of any act purporting to be done in its or his
official capacity, until the expiration of one
month next after notice in writing has been,
in the case of a Committee, delivered or left
at its office, and in the case of an officer
or servant, delivered to him or left at his
office or place of abode, stating the cause of
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action and the name and place of abode of the
intending plaintiff; and unless the plaint
domains a statement that such notice has been
so delivered or left:
Provided that nothing in this section
shall apply to any suit instituted under
section 54 of the Specific Relief Act, 1877.
(I of 1877)."
So far as suits against public officials are
concerned this section is an exact
reproduction of s. 80, Civil Procedure Code.
But s. 80, Civil Procedure Code has two parts
namely:
(1) Suits against Governments and
(2) Suits against public officers in
respect of acts purporting to be done by
those public officers in their official
capacity.
So far as suits against Governments are concerned, they
cannot be validly instituted without giving a notice as
required by s. 80, Civil Procedure Code. But when we come
to suits against public officers, s. 80, Civil Procedure
Code applies only to suits in respect of any ’act’
purporting to be done by a public officer and
436
that in his official capacity. Hence before s. 80 can be
relied on in any suit against a public officer, it must be
shown that it is a suit in respect of an ’act’ purporting to
be ’done by him ’in his dial capacity. In view of the
provisions of ’the General Clauses Act, the expression ’act’
also includes illegal omissions. Therefore if the suit does
not relate to any ’act’ or ’illegal omission’ purporting to
be done by a public officer in his official capacity, s. 80
will not have any application. Similar is the position
under s. 233 of the Ajmer Merwar Municipalities Regulation.
The stand taken by the plaintiff is that in the instant
case no notice under s. 233 of Ajmer Merwar Municipalities
Regulation was necessary; alternatively it was urged that if
such a notice is necessary, the notice issued complies with
the requirements of law. If the first alternative is
accepted there is no need to go into the question as to the
validity of the notice issued.
In the suit, the plaintiff does not complain of any act
done by the defendant nor does it say that the defendant was
guilty of any illegal omission. The plaintiff’s case is as
mentioned earlier that in view of the notification issued by
the Chief Commissioner on March 29, 1949 [Exh. 13(B)], it
was entitled to recover from the defendant the amount
claimed. The stand taken by the defendant is that the levy
of surcharge is invalid. Whether the contention is
sustainable or not there is no doubt that it is bona fide
contention. That contention had commended itself to the
High Court. Every omission is not an illegal omission.
Before an omission can be considered as an illegal omission
it must be shown that the official concerned had omitted to
discharge some official duty imposed on him in public
interest. The omission in question must have a positive
content in it. In other words the nondischarging of that
duty must amount to an illegality. We are told that under
the provisions of the Ajmer Metwar Municipalities
Regulation, it is the duty of the Municipal Council to
discharge all its liabilities. In that connection reference
was made to certain provisions of the said Regulation. But
the failure on the part of the Municipality to discharge its
liabilities will not ordinarily become illegal omissions.
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The municipality or its members or office bearer cannot be
punished for their failure to pay the amount due to the
plaintiff. To put it differently the omission complained
does not entail any penal consequence for the public
official responsible for it. If every omission is
considered as an illegal omission and therefore an ’act’
either within the meaning of s. 80, Civil Procedure Code or
s. 233 of the Ajrner Merwar Municipalities Regulation then
the distinction between the first part of s. 80, Civil
Procedure Code and its second part disappears. If that is
so, k follows that in every suit against a public officer
relating to his public duty, the issuance of a notice is a
condition precedent. That in our opinion would be rewriting
the section.
437
It is true that in Bhagchand Dagdusa Guirathi and ors.
v. Secretary of State for India(1) the Privy Council laid
down that s. 80 should be strictly complied with and is
applicable to all forms of action and all kinds of reliefs
claimed against the Government. But here in this case we are
not concerned with a claim against the Government.
Therefore that decision has no application to the facts of
the present case. The case which is relevant for our
present purpose is Revati Mohan Das v. Jatindra Mohan
Ghosh(2). Therein a manager of an estate appointed under s.
95 the Bengal Tenancy Act, 1885 executed a mortgage in
favour of the predecessor of the plaintiff therein after
obtaining the sanction of the local court. The successor of
that manager failed to discharge the mortgage debt.
Consequently the plaintiff brought a suit against him for
obtaining a mortgage decree. That suit was resisted on the
ground that the plaintiff had failed to give the notice
prescribed by s. 80, Civil Procedure Code before instituting
the suit. That plea succeeded in the High Court. The
Judicial Committee of the Privy Council reversed the decree
of the High Court holding that the failure on the part of
the resportdent to discharge the mortgage cannot be
considered as an ’act’within the meaning of s. 80, Civil
Procedure Code. In the course of the Judgment Sir George
Lowndes speaking for the Board observed thus:
"On the alternative contention their Lordships are
unable to hold that non-payment by respondent 1 is an ’act
purporting to be done by’ the manager ’in his official
capacity’. Under the general definitions contained in s.
3, General Clauses Act, 1897 an ’act’ might include an
illegal omission but there clearly was no illegal omission
in the present case. It is also difficult to see how mere
omission to pay either interest or principal could be an act
purporting to be done by ’the manager in his official
capacity." (emphasis supplied).
At this stage we would like to emphasis the observations
of their Lordships; "but clearly there was no illegal
omission in the present case." This observation shows that
a mere omission to discharge the debt without any thing more
is not an illegal omission. It is true that in that case,
the court proceeded further and observed:
"The mortgage imposed no personal liability upon the
manager, but merely provided that if payment was not made
the mortgagee would be entitled to realize his dues by sale
through the Court, and this was all that the appellant
sought by his suit. The manager for the time being no doubt
had an option to pay in order to save the sale, but
failure to exercise an option is not in any sense a breach
of duty. The appellant made no claim against
(1) 54 I.A. 338. (2) 61 I.A. 171.
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438
respondent 1 personally. He was there only as representing
the estate of which the sale was sought. In their
Lordships’ opinion, such a suit is not within the gambit of
s. 80 and no notice of suit was required."
It is possible to read this passage as merely setting
out the facts of that particular case and the equitable
considerations arising therefrom and not as the ratio of the
decision. Even if we consider that passage as one of the
reasons given in support of the decision, the strength of
the earlier ratio is not weakened. The interpretation placed
by us on that decision is the same as that placed by the
Calcutta High Court in Debendra Nath Roy v. Official
Receiver(1). Mr. Sharma read to us several decisions of
the various High Courts wherein it has been laid down that
a suit brought in respect of breach of contract by a public
official is an act within the meaning of s. 80 Civil
Procedure Code. Similarly, illegal omissions have been held
to be ’acts’ under that section. In some of the decisions it
was held that the second part of s. 80, Civil Procedure Code
applies only to actions on torts committed by public
officials, in the discharge of their public functions.
There is conflict of judicial opinion on that point. For
our present purpose it is not necessary to resolve that
conflict. Suffice it to say that in the present case, the
plaint does not complain of any ’act’ or even an illegal
omission on the part of the defendant. Hence we agree with
Mr. Purshottam Tricumdas that no notice under s. 233 of the
Ajmer Metwar Municipalities Regulation was necessary before
instituting the suit. In that view it is not necessary to
consider whether the notice relied on by the plaintiff meets
the requirements of the law.
This takes us to the validity of the notification issued
by the Chief Commissioner of Ajmer on March 29, 1949 levying
certain surcharges on the consumers of electricity supplied
by the plaintiff. Section 6 of the Bombay Act as it
originally stood read:
"The provisions of the Act shall apply
notwithstanding anything in any other law or
any licence or sanction granted under the
Principal Act or in any contract for energy or
maintaining street light equipments."
The notification extending this Act to Ajmer
Metwar modified that section and the modified
section reads:
"The provisions of the Act shall apply
notwithstanding anything in any other law or
any licence or sanction granted under the
principal Act."
The words ’Principal Act’ refer to the Electricity Act. On
the basis of this modification it is urged on behalf of the
respondent
(1) A.I.R. 1938 Cal. 191.
439
that the Chief Commissioner was not competent to levy the
impugned surcharge. From the fact that certain words were
omitted in s. 6, we are asked to assume that the Government
of India intended that no surcharge should be levied on the
bills issued to the defendant for the supply of electrical
energy for street lighting. We do not know why the words in
question were omitted from s. 6. But to our mind the
omission of those words does not in any manner affect the
provisions contained in ss. 3 and 4 the Bombay Act. Now
we shall set out ss. 3 and 4 of the Bombay Act. They read:
"Section 3 .--( 1 ) Any license or
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sanction-holder may apply to the Provincial
Government in the prescribed form for
fixing a
rate of surcharge on the charges for energy or
street lighting equipment leviable by him
under the terms of his licenee, sanction or
contract, as the case may be. Such
application shall be accompanied I by such
calculations as may be prescribed.
(2) On receipt of an application under
sub-section (1) the Provincial Government
may, if it considers that a surcharge is
desirable in the case of such licensec or
sanction-holder, by order notified in the
Official Gazette, fix the rate of surcharge.
(3) The rate of surcharge fixed under
sub-section (2) shall not exceed:
(a) 331/2 per centuries in the case of
undertakings where diesel oil is used for the
generation of energy,
(b) 20 per centuries in the case of
undertakings where steam is used for the
generation of energy.
(4) In the order fixing the rate of
surcharge under sub-section (2), the
Provincial Government may specify such
conditions as it may think fit to be observed
by the licensee or sanction-holder.
(5) Without prejudice to the
generality of the power contained in sub-
section (4), the Provincial Government may
require the execution of an undertaking in the
prescribed form by the licensec or
sanction holder that his profits in excess of
the prescribed limits shah be transferred to a
Rates Stabilization Reserve for prescribed
purposes.
(6) The Provincial Government may at any
time enhance or reduce by a like order the
rate fixed under sub-section (2).
440
Sec. 4 :--Upon the rate of surcharge
being fixed by the Provincial Government from
time to time in accordance with this Act, it
shall not be lawful for the licensec or
sanction-holder concerned except with the
previous sanction of the Provincial Government
to charge at other than charges surch
arged at
the rate for the time being so fixed;
Provided that no surcharge or any
subsequent revision thereof shall affect
charges leviable for any period not covered by
the relevant order of the Provincial
Government."
The provisions contained therein clearly empower the
Chief Commissioner to levy surcharge on the bills
for the supply of electricity for street lighting.
Section 4 empowers the licensec to collect from the consumer
the surcharge levied. Municipal Councils are not excluded
from the operation of ss. 3 and 4 of the Bombay Act as
extended to Ajmer Merwar. Similarly electrical energy
supplied on the basis of a contract is not excluded from the
operation of s. 3. That much is clear from the language of
that section. We see no reason to read into that section an
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exception in the case of Municipal Councils or electricity
supplied for street lighting under a contract. Section 6
does not in any manner cut down the operation of ss. 3 and
4. In our opinion that section as it stood originally or as
modified has no impact on ss. 3 and 4. Charges for the
supply of energy for street lighting are ordinarily payable
by the Municipal Councils. Generally speaking it is the
Municipal Councils that provide street lighting. Possibly s.
6 was included in the Bombay Act as a matter of abundant
caution. It is not denied that the Bombay legislature had
competence to enact that Act. We shall presently examine
the contention that Act is ultra vires the provisions of
Electricity Act and therefore the provisions of that Act
should not be given effect to. But for the present we are
assuming that Act is valid and proceed to examine the impact
of s. 6 on ss. 3 and 4. We think that s. 6 does not in any
manner control ss. 3 and 4. The intention of a legislature
or its delegate has to be gathered from the language of the
statutory provisions and not from what it failed to say. If
because of modification of s. 6, the provisions contained in
ss. 3 & 4 could not be applied in the case of supply of
electrical energy for street lighting under a contract then
it could have been said that the notification issued by the
Chief Commissioner was without the authority of law. But
that cannot be said in this case. The provisions in ss. 3
and 4 are self contained provisions. For taking action on
the basis of those sections no assistance is needed from s.
6. Therefore we think the High Court was wrong in opining
that the notification issued by the Chief
441
Commissioner levying surcharge on the price of the
electrical energy supplied for street lighting was without
the authority of law.
We shall now examine the contention that the
notification issued by the Chief Commissioner on March 29,
1949 is ultra vires the provisions of the Electricity Act.
On this aspect the argument on behalf of the respondent
proceeded thus: Section 3(f) of that Act provides that the
provisions contained in the Schedule shall be deemed to be
incorporated with, and to form part of, every licence
granted under this Act save in so far as they are expressly
added to, varied or excepted by the licence, and shaH,
subject to any such additions, variations or exceptions
which the State Government is hereby empowered to make,
apply to the undertaking authorised by the license:
(Proviso is not relevant for our present purpose)
Clause 12 of the Schedule as it stood at the relevant time
read:
"XII. CHARGE FOR SUPPLY FOR PUBLIC
LAMPS.--
The price to be charged by the licensec
and to be paid to him for energy supplied for
the public lamps, and ’the mode in which those
charges are to be ascertained shall be settled
by agreement between the licensee and the
(State Government) or the local authority, as
the case may be, and, where any difference or
dispute arises, the matter shall be determined
by arbitration."
The argument proceeded that the Electricity Act which is
a central legislation lays down that the price to be charged
by the licensee and to be paid to him for the electrical
energy supplied for street lighting shall be settled either
by agreement between the licensee and the State Government
or the local authority as the case may be or, and, where any
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difference or dispute arises the matter should be determined
by arbitration; the price so fixed cannot be altered in any
manner; levying surcharge is but one mode of enhancing the
price to be paid; such a course is violative of cl. 12 of
the Schedule in the Electricity Act; hence it must be held
that the Chief Commissioner had no power to levy any
surcharge which would interfere with the mandate of cl. 12.
It was not said before us nor before the High Court that the
Bombay legislature had no competence to enact the Act.
Electricity is a concurrent subject both under the
Constitution as well as under the Government of India Act,
1935. Therefore quite clearly the Bombay legislature had
competence to provide for the levy of surcharge so long as
the relevant provision did not conflict with any provision
in any central Act. Hence the question is whether ss. 3 and
4 are in conflict
442
with cl. 12 of the Schedule of the Electricity Act ? If the
two can co-exist then there is no question of conflict
between the two.
We see no conflict between cl. 12 of the Schedule in the
Electricity Act and ss. 3 and 4 of the Bombay Act. Clause
12 prescribes a procedure for settling the price of
electricity supplied by the licensee for street lighting.
It merely lays down the machinery for settling the price if
there is dispute between the contracting parties. That
clause does not fix the price to be paid or even the maximum
price payable. We fail to see how that clause takes away
the power from the State legislature to impose additional
burden on the consumer. All that clause means is that the
licensec cannot dictate his terms to the authority
responsible for street lighting. We are unable to agree
with the learned Judges of the High Court that in
incorporating cl. 12 of the Schedule, the central
legislature intended that under no circumstance the
liability of the consumer can be increased beyond what is
asked during the continuance of the contract. In our
opinion it imposes no fetters on the powers of the
provincial legislatures in the matter of
hanging the price of the electricity supplied by the
licensec for street lighting.
For the reasons mentioned above we are unable to agree
with the High Court that either the suit is bad because of
want of a valid notice under s. 233 of the Ajmer Merwar
Municipalities Regulation or that the notification imposing
surcharge is invalid for any reason.
Under the notification imposing surcharge the plaintiff
is not entitled to get any additional sum as regards the
pumping of water. Under that notification to the extent it
is applicable to this case surcharge is levied only on the
price of electrical energy supplied under a contract for
street lighting and not in respect of the price of the
electrical energy used for pumping water. Under Exh. 21 the
plaintiff entered into an agreement to pump water for a
fixed consideration. For so doing it may have to utilise
the electricity produced by it but that does not amount to
supplying electricity to the Municipal Council much less
supplying electricity for street lighting. From el. 8 of
that agreement it is seen that the parties to that agreement
contemplated the pumping of water by using Oil Engines
though ordinarily it was expected that it will be done by
electrical energy. It is true that el. 20 of the agreement
provides that the Municipal Council shall have first claim
over other consumers for the supply of energy for pumping
such quantity of water as may be required from the wells
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at Bhaonta. In construing the true nature of the contract
entered into between the parties. the contract has to be
read as a whole and if so read it is clear that what the
plaintiff undertook was to pump water from the wells in
question and not to supply any electrical energy.
443
Hence we are in agreement with the learned Judges of the
High Court that the plaintiff’s case in this regard should
fail.
Mr. Sharma urged that the High Court had not thought
it necessary to decide certain contentions advanced on
behalf of the defendant in view of its conclusions set out
earlier. He told us that the defendant had pleaded that the
plaintiff failed to prove the quantum of surcharge payable
by the defendant. It also contended ’that the notification
under which the surcharge is levied cannot have
retrospective operation and that no surcharge was leviable
under that notification on the charges in respect of
maintaining street lighting equipments. According to the
learned Counsel for the plaintiff there is no merit in any
one of these contentions. As mentioned earlier the High
Court has not gone into these contentions. It is for that
court to examine those contentions. This court does not
ordinarily examine contentions which have not been examined
by the appellate court. It is best that these questions
should be gone into by the High Court.
In the result we allow this appeal, set aside the
judgment of the High Court and remand the case back to the
High Court for deciding the issues that remain to be
decided. The costs of this appeal shall be costs in the
cause.
V.P.S. Appeal allowed.
444