Judgment

DWIVEDI, J.:- The Kottayam Electric Supply Agency, Kottayam, is the licensee for the supply of electric energy in Kottayam in the State of Kerala The appellant, N. S. Mooss, is the proprietor of the licensee. By an order, dated May 17, 1963, the State of Kerala revoked the licence with effect from August 1. 1963. The order was made under Section 5 (1) (a) of the Indian Electricity Act, 1910 (hereinafter called the Act). On the same date, the State of Kerala made another order under Section 5 (1) (c) and (3) of the Act directing the appellant to deliver the undertaking to the Kerala Electricity Board (hereinafter called the Board) on or before July 1, 1963. The appellant filed a writ petition under Art. 226 of the Constitution challenging the two orders. The High Court has dismissed the petition Hence this appeal.

2. Sir Sen, counsel for the appellant, has urged four points before us. One of those points is: The Board endorsed the State proposal for the revocation of the licence before the explanation of the appellant reached the State. The explanation was not placed before the Board and accordingly not considered by the Board. So there was no due consultation of the Board and the order of revocation is void. As we are accepting this point, it is not necessary to notice his remaining points. We shall state only such facts as are necessary for the decision of the aforesaid point.

3. On August 17, 1962, the State Government issued a notice to the appellant under S. 4 (3) of the Act asking him to show cause why the licence should not be revoked. He was asked to send his explanation within three months and three days from the date of the receipt of the notice. Much before the issue of this notice. On June 21,1962, the State Government sent the letter No. 11795 EL 1/61/17/ P. W. to the Board. The letter states that the Government considered that the licence of the appellant should be revoked under S. 4 (1) (a) and requested the Board to communicate its views to the Government. On July 26, 1962 the Board sent its reply to the Government. The reply letter is No. B. VI/5705/62. The Board recommended the revocation of the licence. On November 5, 1962 within three months of the issue of the notice under Section 4 (3), the appellant sent his explanation to the Government. The Government was not satisfied with the explanation. It passed the impugned order on May 17, 1963 revoking the licence. These facts support Sri Sen s contention that the Board s recommendation was made without looking into the appellant s explanation. Indeed, it was humanly impossible for the Board to have looked into the explanation.

4. Counsel for the State Government and the Board have raised a preliminary objection. They point out that the argument advanced by Sri Sen was neither raised in the writ petition nor urged before the High Court. According to them it should not be allowed to be raised in this Court. It is true that the point is not specifically raised in the writ petition. But, in our view, it is embedded in paragraphs 6 and 22 of the affidavit accompanying the petition. Paragraph 6 asserts that the aforesaid two orders are "illegal and void and of no effect." Paragraph 22 states that "the entire proceedings culminating in the issue of (the two orders) constitute a gross violation of that the impugned order have been made in breach of the statutory conditions for revoking a licence. earlier we have said that Sri Sen s contention is embedded in paragraphs 6 and 22. We are reassured of our construction of these paragraphs by the fact that the Government as well as the Board have also construed the petition in the same sense and have controverted it in their affidavits. Paragraph 3 of the affidavit filed on behalf of the Government states: "(The appellant s) objections were considered and the Government formed an opinion that it was in public interest to revoke the licence and after consulting the Electricity Board revoked the licence as the Government