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Allahbad High Court
SATISHCHANDRA,N.D.OJHA
State of U.P. - Appellant
Versus
The Benaras Electric Light and Power Co. Ltd. - Respondent
Decided On : 08/08/1972
ELECTRICITY - TEMPORARY POWERS OF CONTROL ACT, 1947 - SECTION 3 - REPEALED BY IMPLICATION BY ELECTRICITY SUPPLY ACT, 1948 - SECTIONS 57 AND 57-A AND INDIAN ELECTRICITY ACT, 1910 - SECTION 22-B - ORDERS PASSED UNDER SECTION 3 (2) (AA) OF THE TEMPORARY ACT - VOID.
Fact of the Case:
The State of Uttar Pradesh filed two appeals challenging the judgment of a learned Single Judge allowing two writ petitions and directing the appellant not to take action under Section 3 of the U. P. Electricity (Temporary Powers of Control) Act, 1947. The learned Judge found that this section was void on the ground of repugnancy with Sections 57 and 57-A of the Electricity Supply Act No. 54 of 1948, as amended by the amending Act, No. 101 of 1956, and with Section 22-B of the Indian Electricity Act, 1910, as amended by the Central Act No. 32 of 1959.
Finding of the Court:
The Court held that Section 3 of the Temporary Act of 1947 was impliedly repealed by the Electricity Supply Act, 1948, after its amendment by the Act 101 of 1956; and that Section 3 beforesaid was also impliedly repealed by Section 22-E of the Electricity Act, 1910, as amended by Act 32 of 1959. It was also held that Section 3 of the Temporary Act of 1947 authorised the State Government to make notified orders only, that is to say, the orders passed under that provision were to be published in the Official Gazette. The various orders impugned by the respondent company were not notified orders. On that ground, they were unenforceable.
Issues: Whether Section 3 of the Temporary Act of 1947 was void on the ground of repugnancy with Sections 57 and 57-A of the Electricity Supply Act No. 54 of 1948, as amended by the amending Act, No. 101 of 1956, and with Section 22-B of the Indian Electricity Act, 1910, as amended by the Central Act No. 32 of 1959.
Ratio Decidendi: The Court held that the Temporary Act of 1947 was a law made by the Legislature of a State with respect to electricity, a subject enumerated in the concurrent list. The Central competing Acts were amending Acts Nos. 101 of 1956 and 32 of 1959. Ex facie, they were not earlier laws to the Temporary Act of 1947. The Court held that the various continuing Acts had, in law, the effect of continuing in force the original Act of 1947 as it was. They Were not fresh legislation on the subject of electricity. The Temporary Act of 1947 is still the only State Legislation on that subject; and from the point of view of Article 254 (2), the position would be that the State Legislature made a law with respect to electricity in 1947. The Central Acts of 1956 and 1959 were not an earlier law within meaning of Article 254 (2). In this view, the provisions of the 1947 Act which are repugnant to the provisions of the amending Acts of 1956 and 1959, will not prevail in the State; on the contrary, they will be deemed impliedly repealed.
Final Decision: The appeals were dismissed with costs, subject to the reservation that the operative part of the learned Single Judge's judgment will relate to clause (aa) of Section 3 (2) of the U. P. Electricity (Temporary Powers of Control) Act, 1947, only, and Section 3 (1) only in so far as it covers the field of clause (aa) aforesaid.
SATISH CHANDRA, J. :- These two appeals have been filed by the State of Uttar Pradesh. They raise same question, and can be conveniently decided by a common order. They are directed against the judgment of a learned Single Judge allowing two writ petitions and directing the appellant not to take action under Section 3 of the U. P. Electricity (Temporary Powers of Control) Act, 1947. The learned Judge found that this section was void on the ground of repugnancy with Sections 57 and 57-A of the Electricity Supply Act No. 54 of 1948, as amended by the amending Act, No. 101 of 1956, and with Section 22-B of the Indian Electricity Act, 1910, as amended by the Central Act No. 32 of 1959.
2. The relevant and material facts in relation to the Benares Electric Light and Power Co. Ltd., the respondent in Special Appeal No. 301 of 1972 are as follows :
3. The respondent company carries on the business of generating, supply and distribution of electrical energy in the city of Benares, under a licence granted to it under the Electricity Act, 1910.
4. Under the Defence of India Act, 1939, the State Government had been conferred powers of control over production, supply and distribution of electricity. With the cessation of hostility, that Act lapsed. The Provincial Legislature felt that there was need to continue the powers of control. Accordingly, the U. P. Electricity (Temporary Powers of Control) Act No. 6 of 1947 was enacted. Section 3 of this Act provided :-
"3. Powers to control production supply and distribution -
(1) The State Government so far as it appears to it to be necessary or expedient for maintaining or increasing supply of electricity or for securing its equitable distribution and availability at fair prices, may by notified order provide for regulating or, prohibiting the production, supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide :
(a) ........................
(aa) for regulating the rates which may be charged by any undertaking for supplying electrical energy and for relaxing any maximum or minimum limits otherwise imposed on such rates."
Shortly thereafter, the Central Legislature enacted the Electricity Supply Act No. 54 of 1948. This Act was passed for the rationalization of production and supply of electricity and for electrical development. The Supply Act was amended by Parliament by the Electricity Supply (Amendment) Act No. 101 of 1956, which came into force on 31-12-1956. This amending Act introduced Sections 57 and 57-A and 6th and 7th Schedules to the Supply Act. Sec. 57 provided that the provisions of the 6th and 7th Schedules shall be deemed to be incorporated in the licence of every licensee (not being a local authority). It further provided that the provisions of the Indian Electricity Act, 1910 and of any other law, agreement or instrument applicable to the licensee shall be void and of no effect in so far as they are inconsistent with Section 57-A and the said schedules.
5. Section 57-A provided that the State Electricity Board or, where there is no such Board in any State, the State Government may constitute a rating committee, in case a licensee fails to comply with any provisions of the said schedules or in case it makes a request for it.
6. The 6th schedule contemplated that a licensee should ensure for itself a reasonable return. The licensee was authorised to enhance the rates, which it may charge from its consumers, keeping in view the various provisions of the schedule. The rating committee contemplated by Section 57-A was to examine the charges which a licensee had imposed upon its consumers and to report to the State Government, after hearing the parties. The State Government had to publish the report of the rating committee in the Official Gazette. The State Government could then pass an order in accordance with the report, fixing the charges for the supply of e
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