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SUPREME COURT OF INDIA
A. ALAGIRISWAMI, P.N. BHAGWATI, P.K. GOSWAMI, R.S. SARKARIA AND A.C. GUPTA, JJ.
The Kerala State Electricity Board (In C. As. Nos. 2557 of 1969, 1423-34 of 1972, 1733, 2474, 2575-78 of 1972, 1318, 1371-74, 2040 of 1973, 2100-2102 of 1974, 120-121 and 536 of 1975). The State of Kerala (in C. A. Nos. 20 of 1970, 2117 of 1972 and 95-105 of 1973), Appellants
Versus
The Indian Aluminum Co. Ltd. and others, Respondents. (In CAs. Nos. 2557 of 1969 and 20 of 1970).
Civil Appeals Nos. 2557 of 1969, 20 of 1970, 1423-1434, 1733, 2117 2474, 2575, 2578 of 1972 95-105, 1318, 1371-1374, 2040 of 1973, 2100-2102 of 1974 and 120, 121 and 536 of 1975
Decided on 1-9-1975.
Advocates appeared
Mr. Lal Narain Sinha, Solicitor General of India (Mr. A. G. Pudissery, Advocate, with him), for Appellant (In C. A. No. 2557 of 1969): Mr. V. A. Seyid Mohammed, Sr. Advocate, (Mr. K. M. K. Nair, Advocate, with him), for Appellant 1034 (In C. A. No. 20 of 1970): Mr. A. K. Sr. Advocate (In C. A. No. 1423/72), Mr. M. P. Jha, Advocate, (In C. A. 1423/72), Mr. A. G. Pudissery, Advocate, (In all the petitions with him), for Appellants (In CAs. Numbers 1423, 1434, 1733, 2474, 2575, 2576-78 of 1972), 1318, 1371, 1372, 2040/73, 2100-2102/74, 120-121, 536/75: M/s. P.C. Chandi, K. M. K. Nair and K. R. Nambiar, Advocates, for Appellants (In CAs. Nos. 2117 of 1972 and 95-105 of 1973): Mr. S. V. Gupte, Sr. Advocate, M/s. Ajay Ray and P. Mathai, Advocates, and M/s. O.C. Mathur, K. J. John and J. B. Dadachanji Advocates of M/s. J.B. Dada Chanji & Co., with him), for Appellants (In C. A. No. 1457 of 1971): Mr. G. Rath, Advocate-General for the State of Orissa, (Mr. B. Parthasarthy Advocate, with him), for Appellant (In C. A. No. 1652 of 1974): Mr. Vinoo Bhagat, Advocate, for Appellants (In CAs. Nos. 1653-54 of 1974): Mr. S. V. Gupte, Sr. Advocate (In C. A. No. 2557/69), M/s. P. Mathai & Ajay Ray, Advocates, and (M/s. O. C. Mathur, K. John and J. B. Dadachanji, Advocates of M/s. J.B. Dadachanji and Co., with him), Mrs. S. Bhandare, Adv. (In C. A. No. 20/70), for Respondent No. 1 (In C. A. No. 2557 of 1969) and (In C.As. Nos. 20 of 1970, 1423-24 of 1972: Mr. G. B. Pai, Sr. Adv., (M/s. K. J. John, O.C. Mathur and J. B. Dadachani) Advocates of M/s. J. B. Dadachanji and Co., and Mr. P. K. Kurian, Advocate (In C. A. No. 1733 of 1972 with him), for Respondent No. 1 (In CAs. Nos. 1426-1429, 1431-1434, 1733/72, 2577/78, C. As. Nos. 1117/72, 95-96, 99-100 and 102-105/73): M/s. N. Sudhakaran, P. Mathai and P. K. Pillai, Advocates, for Respondent No. 1 (In C. A. No. 2575 of 1972 and Civil Appeal No. 1425 of 1972): Mr. K. R. Nambiar, Advocate, for Respondent No. 2 (In C. As. Nos. 2575 of 1972, 2576-78 of 1972, 2040 of 1973): Miss. Lily Thomas, Advocate, for Respondent No. 1 (In C.A. No. 2576 of 1972: Mr. A. S. Nambiar, Advocate, for Respondent No. 1 (In C. A. No. 2578 of 1972): Mr. N. Sudharkaran, Advocate, for Respondent No. 1 (In C. A. No. 97 of 1973): Mr. G. B. Pai, Sr. Advocate (In C. A. Nos. 2100-2102/74, 121/75), M/s. P. Mathai, Advocate (In C. A. 1318/73, M/s. Ranjit Mahanty and Ajay Ray, Advocates (In C. A. No. 1652/74), and M/s. O. C. Mathur, K. J. John and J. B. Dadachanji, Advocates of M/s. J. B. Dadachanji and Co., (In all the matters with him), for Respondent No. 1 (In C. A. No. 1318/73, 2100-2102/74, 121/75) and for the Respondents (In C. A. No. 1652/74): Mr. Lal Narain Sinha, Solicitor General of India (In C. A. No. 1457/71), (Mr. A. G. Puddessery, Advocate, with him), for the Respondents (In C. A. No. 1457 and 1641/71): Mr. T. S. Krishnamoorthy Iyer, Sr. Advocate, (M/s. P. Mathai, N. Sudharkaran and P. K. Pillai, Advocates, with him), for Respondent No. 1 (In C. As. Nos. 1371 and 1374 of 1973) and (In C. A. No. 1373/73): Mr. K.M.K. Nair, Advocate, for Respondent No. 2 (In CAs. Nos. 1371-1374 of 1973): Mr. G. L. Sanghi, Sr. Advocate, (M/s. P. Mathai, K. J. John, O. C. Mathur and J. B. Dadachanji, Advocates of M/s. J. B. Dadachanji and Co., with him), for Respondent No. 1 (In C. A. No. 1372/73): Mr. G. Rathi, Advocate, Adv. Genrl. for the State of Orissa, (Mr. B. Parthasarthy, Advocate, with him), for the Respondents (In CAs. Nos. 1653-1654/74): Mr. P. K. Pillai, Advocate, for Intervener (In C. A. No. 20 of 1970): Mr. G. L. Sanghi, Sr. Advocate, (M/s. P. V. Kapur and U. K. Khaitan, Advocates with him), (for Ferro Alloys Corpn.) and M/s. K. R. Choudhri K. Raj Choudhary, Advocates, (for A. P. Electricity Board), for Intervener (In C. A. No. 1652 of 1974); M/s. S. Balakrishnan and N. M., Advocates, for Respondent No. 1 (In C. A. No. 2040 of 1973).
-held, repugnancy question may arise only in respect of a legislation made with reference to legislative power in concurrent list.
-held, This Electricity Act 1910 and the Electricity (Supply) Act 1948 can be said to cover the whole field on electricity under Entry 38 of List III and cannot be said to come under Entry 44 of List I.
-held, entries cover the Kerala Essential Articles Control (Temporary Power) Act, 1962.
JUDGMENT
ALAGIRISWAMI, J. (for himself and on behalf of P. N. Bhagwati, P. K. Goswami, R. S. Sarkaria, JJ.) (Majority Judgment):—The validity of the Kerala State Electricity Supply (Kerala State Electricity Board and Licensees Areas) Surcharge Order 1968 is in question in these appeals. That order was passed in exercise of the powers conferred by Sec. 3 of the Kerala Essential Articles Control (Temporary Powers) Act, 1961. It obliges the Board to collect surcharges for non-licensee 1035 consumers of electricity even though the Board may have entered into long term contracts with them with regard to the rate at which electricity is to be supplied to them. The Act is one to provide, in the interest of the general public for the control of the production, supply and distribution of, and trade and commerce in, certain articles. Section 2 (a) of the Act defines "essential article" as meaning any article (not being an essential commodity as defined in the Essential Commodities Act, 1955) which may be declared by the Government by notified order to be an essential article. Section 3 enables the Government, if of opinion that it is necessary or expedient so to do for maintaining or increasing the supplies of any essential article or for securing their equitable distribution and availability at fair prices, to make notified orders providing for:
(a) regulating by licences, permits or otherwise the production or manufacture of any essential article:
(b) controlling the price at which any essential article may be bought or sold;
(c) regulating by licences, permits, or otherwise the storage, distribution, transport, disposal, acquisition, use or consumption of any essential article;
(d) prohibiting the withholding from sale of any essential article ordinarily, kept for sale;
(e) requiring any person holding in stock any essential article to sell the whole or a specified part of the stock to the Government or to an officer or agent of the Government or to such other person or class of persons and in such circumstances as may be specified in the order;
(f) regulating or prohibiting any class of commercial or financial transactions relating to any essential article, which, in the opinion of the authority making the order, are, or if unregulated are likely to be detrimental to the public interest;
(g) collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters;
(h) requiring persons engaged in the production, supply or distribution of, or trade or commerce in any essential article to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto as may be specified in the order;
(i) regulating the processing of any essential article;
(j) exercising over the whole or any part of an existing undertaking, such functions of control and subject to such conditions, as may be specified in the order;
(k) any incidental and supplementary matters including in particular the entering and search of premises, vehicles, vessels and aircraft, the seizure by a person authorised to make such search of any article in respect of which such person has reason to believe that a contravention of the order has been, is being or is about to be committed, the grant or issue of licences, permits or other documents, and the charging of fees thereof.
In exercise of the powers under S. 2 (a) electricity was declared as an essential article in 1965. Electricity is the only article declared as an essential article under the Act so far and in spite of the wide powers with regard to making of notified orders under Section 3 the impugned Surcharge Order is the only order so far made. It provides, as already stated, for levying of a surcharge on supplies of electricity made to bulk consumers, many of whom are respondents in these appeals.
2. The validity of the Act itself is not seriously questioned except in one respect which we shall deal with later; but it
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