The main legal point established in the judgment is that the orders issued by the State were beyond its competence and interfered with the discretion vested in the Electricity Board under the Electricity (Supply) Act, 1948.

M. Madhavan Nair, J.

1. Appeal from the decision of a learned Single Judge, reported in 1969 KLJ 571.

2. The appellant company, incorporated in Calcutta, is supplied electricity by the Kerala State Electricity Board under agreements that fix the price for the energy and covenant not to enhance it. On December 10, 1965, the Kerala Government, by a Notification, Ex. P.5, declared "electrical energy" to be an 'essential article' within the scope of the Kerala Essential Articles Control (Temporary Powers) Act, 1961 (Kerala Act III of 1962) hereafter, the Kerala Act , and on June 1, 1968 by the notified Order, Ext. P.1, imperatively directed the Electricity Board to levy a surcharge at rate specified therein. In compliance with that Order the Board served two sets of notices demanding surcharges totalling to Rs.1,45,477/- for electricity supplied in June and to Rs.1,45,948/- for the supply in July 1968, the respective bills being Exs. P.2 series and P.4 series. As the appellant's protest to the levy was not heeded to by the Board, it moved this Court under Art.226 of the Constitution,

"to declare Exs. P.1 and P.5 as unconstitutional and void and also ultra vires the provisions of the Kerala Essential Articles Control (Temporary Powers) Act 1961, and the powers of the Government of Kerala:

to issue a writ of mandamus or other appropriate writ or order restraining the Respondents from levying or demanding any surcharge under Ex. P.1 older from the petitioner;

to quash the levy and demand for surcharge and electricity duty thereon made in Exs. P.2(a), P.2(b), P.2(c), P4(a), P4(b) and P4(c); and to pass such other orders and grant reliefs as this Honourable Court may deem fit and proper."

The Government as well as the Board opposed the motion. Mathew J. upheld Exs. P.1 and P.5 valid, the demands for surcharge not liable to be quashed, and dismissed the motion. Hence this appeal.

3. Before us, Mr. M.K. Nambiar, Senior Advocate, urged

(1) that, the Kerala State Electricity Board being a trading corporation incorporated with its powers and obligations defined by the Central Act, the Electricity (Supply) Act LIV of 1948, the State Government is incompetent to amend or alter its powers as it has purported to do by the Order, Ex. P1;

(2) that, the power to fix the terms and conditions of supply of electricity to consumers having been vested by the Central Legislature on the Electricity Board, an extraneous authority, like the Kerala Government, cannot interfere in the exercise of that power and compel exercise of that power in a particular manner fixed by it;

(3) that the subordinate legislation in Ex.P1 cannot emanate from the provisions of S.3 of the Kerala Act and is beyond the legislative powers of the State under Art.246 of the Constitution; and

(4) that, the definition of an 'essential article' in the Kerala Act suffers from the vice of excessive delegation as no criteria is given in the Act to specify it.

4. Counsel pointed out that both S.100 of the Government of India Act, 1935, and Art 246 of the Constitution, provided for exclusive power of legislation on specified subjects to the Central Legislature and to the State Legislature, and for concurrent power of legislation to both on certain other subjects. They are respectively Lists I, II and III of the Seventh Schedule to the Constitution. In such enumeration of legislative heads, incidental overlappings of subjects are bound to occur, and to reconcile conflicts arising therefrom one device adopted by the Courts is to exclude the particular from the general head. In In the matter of the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, AIR 1939 FC 1 at 10. Chief Justice Sir Maurice Gwyer has observed:

"........ a general power ought not to be so construed as to make a nullity of a particular power conferred by the same Act and operating in the same field, when by reading the former in a more restricted sense, effect can be given to the latter in its or