Electricity if goods.

VEERASWAMI, J.

These two petitions, in which the petitioner is the same, raise an interesting question as to whether electricity is "goods" for the purpose of the Madras General Sales Tax Act, 1959, and the Central Sales Tax Act, 1956 297 US 288; 80 L. Ed. 688). Section 39 of the Indian Electricity Act, 1910, as a matter of fact treats electricity as property which is capable of theft. The section says that whoever dishonestly abstracts or consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code. I note that the section uses the word "deemed" but none the less, I am inclined to think that it is in the contemplation of the Electricity Act that electricity is property and movable at that, capable of being stolen by dishonest abstraction, consumption or user of energy, also capable of distribution and sale. Sir Dinshah Mullah in his work on Sale of Goods Act, would appear to have thought that electricity, like gas and water, was not "goods". Two learned Judges of the Calcutta High Court in Rash Behari v. Emperor 1936 AIR(Cal) 753, 766), agreed with this view and observed :

"Sir Frederick Pollock and Sir Dinshaw Mullah in their commentary on that Act (Sale of Goods Act) express the view that it is doubtful whether the Act is applicable to such things as gas, water and electricity. In our opinion, that view is correct, certainly as regards electricity. In our opinion, that view is correct, certainly as regards electricity. It is, therefore, not possible for Mr. Garden Noad to derive any support by reference to the law relating to the sale of goods." *

The learned Judges were dealing with the argument that as section 39 of the Indian Electricity Act made dishonest abstraction, consumption or use of energy punishable as theft, it must have been contemplated by the Legislature that all the elements of theft as defined in section 378 of the Indian Penal Code must be present. The Court declined to accept that argument on the view that the offence of theft under section 39 depended upon the deeming provision therein. With great respect to the learned Judges, I do not share the view that electricity is not property for the purpose of Sale of Goods Act, or of the Indian Electricity Act. On the other hand, a Division Bench of the Allahabad High Court in Naini Tal Hotel v. Municipal Board 1946 AIR(All) 502), while on a consideration of Article 52 of the Indian Limitation Act, held that, for its purpose, electricity was property and goods. In taking that view, the Allahabad High Court referred to section 39 of the Indian Electricity Act, and the definition of "movable property" in the General Clauses Act and concluded :

"For these reasons, it seems to me clear that electric energy should be held to be 'movable property' and therefore 'goods' within the meaning of Article 52 of the Limitation Act." *

I find myself in entire agreement with the approach made in that case.

This question whether electricity is "goods" has been adverted to in one or two other cases, to which my attention was invited, but without expressing any conclusion. For instance in Nizam Sugar Factory Ltd. v. Commissioner of Sales Tax the High Court of hyderabad referred to Mohamed Kabir v. Government (15 Deccan L.R. 60) as having held electricity to be "goods" for the purpose of the Hyderabad Penal Code, and went on to observe that "goods" was an expression of indefinite meaning, which should be fixed in the context and that electricity might not be regard as "goods" because of the separate entries Nos. 53 and 54 in List II of Schedule 7 of the Constitution. But having said that the learned Judges also stated that they were not deciding the question. My view is that the legislative entries do not provide an answer to the question. In Erie County Natural Gas and Fuel Co. v. Carroll ( 1911 AC 105), the Court of Appeal held gas to be "goods". If one can go that far, I cannot see why on the same considerations elect