The main legal point established in the judgment is that the provisions of the Electricity Act, 2003, particularly Sections 7, 8, 9, and 131, were within the legislative competence of the Union Parliament and did not encroach upon the State's jurisdiction over water resources.

Ashok Bhushan, J.

These two Writ Petitions involving similar issues of facts and law and have been heard together and are being disposed of by this common judgment. It shall be sufficient to refer to the pleadings in W.P(C).No.10432 of 2009 to decide both the Writ Petitions.

2. W.P(C).No.10432 of 2009 has been filed by R.Muraleedharan, a former Chief Engineer of the Kerala State Electricity Board (hereinafter referred to as 'the Board'). The petitioner challenges the implementation of Sections 131 and 132 of the Electricity Act, 2003 in the State of Kerala, whereby the rights over the Hydro Projects for generating electricity in the State of Kerala will be divested from the State and can be handed over to private company. The petitioner's case is that the Board had been constituted under Section 5 of the Electricity Supply Act, 1948. The Electricity Supply Act had been repealed by the Parliament Act, namely, Electricity Act, 2003 (hereinafter referred to as 'the Act, 2003'). Section 131 of the Act, 2003 mandates the State Government to prepare a transfer scheme to give effect to the objects and performance of the Electricity Act and property, interest in property, rights and liabilities which immediately before the effective date belonged to the State Electricity Board get vested in the State Government. The petitioner's case in the Writ Petition is that under Entry 17 in List II to VIIth Schedule of the Constitution of India, water storage and water power is exclusively within the jurisdiction of the State Government, whereas Entry 38 of List III of the concurrent list relates to electricity. It is pleaded that legislation on water storage or water power can only be done by the State Legislature and the Parliament has no legislative competence to enact any legislation either on water storage or water power. Number of dams erected over various rivers are the properties of the State Government, which properties are now being directed to be transferred to Company. It is pleaded that as a result of the implementation of the provisions of Section 131 along with Sections 7 and 8 of the Act, 2013, the valuable rights of the State of Kerala over various rivers and control exercised by it till date over the Hydro Electric Project, will be completely lost to the State Government paving way to private companies. The State of Kerala issued a notification dated 25.9.2008 in exercise of power under Sections 131 and 132 of the Act, 2003 publishing a scheme, namely, the Kerala Electricity First Transfer Scheme, 2008. The State Government issued an order dated 10.12.2008 appointing seven persons as the first Directors of the proposed Company. The State, during the pendency of the Writ Petition, has also issued Exhibit P6 order by which the State Government stated that the functions, properties and all interests, rights in properties all rights and liabilities of the Kerala State Elecetricity Board are vested in the State Government by notification dated 25.9.2008. All these functions and undertakings of the Board vested in the Government are to be re-vested in the Company to be incorporated as fully owned Government Company under the Companies Act, 1956. The orders stated that the new company be constituted by six months. The petitioner in the Writ Petition has prayed for the following reliefs:

"i) To declare that Sections 7, 8, 9 and 131 of the Electricity Act, 2003 (Central Act 36 of 2003) as unconstitutional, void and inoperative.

ia) To call for the records leading upto Exhibit P6 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction.

ii) To issue a writ of mandamus forbearing the State of Kerala from transferring the rights, liabilities and properties of the Kerala State Electricity Board now in its hand to any government Company or other companies in exercise of its powers under Section 131 without enacting as State law on the subject in respect of the Hydro Electric Projects.

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