(1) These second appeals arise out of the appellate decision of the District Judge, Nasik, dismissing Suits Nos. 418 and 420 of 1949 which were filed in the Court of the Civil Judge, Senior Division, Nasik. In Suit No. 418 the plaintiff is one Rao Saheb Manilal Gangaram Shindore who owns an old house bearing Municipal No. 3200 in Kazipura locality and has built a new bungalow bearing C. T. S. No. 617/1-A on the Agra Road. In the othersuit (No. 420) the plaintiff is Mahadeo Deoman Kalal who owns an old house bearing Municipal No. 2719/1 in Kazipura locality and has built a new house bearing No. 617/B-2 on the Agra Road. After building the new houses, the plaintiffs in both suits wrote letters (exhibits 20 and 52) on July 19, 1949, to the manager of the defendant company, the Nasik-Deolali Electric Supply Co., Ltd., requesting him to transfer their electrical connections from their old houses to their new buildings situated on the Agra Road. They mentioned in their applications that they were ready and willing to give the necessary charges for the transfer of the service connections. By their letter exhibit 53 dated August 1, 1949, the defendant company wrote to the plaintiffs pointing out to them that it was regretted that the transfer of the service connections to the new buildings was not possible since such service transfers had been stopped by the company with effect from 1-1-1948. Thereafter on September 5, 1949, the plaintiffs sent requisitions to the defendant company asking for the transfer of the service connections to their new buildings. The requisitions, both of which were in the same language, were to the following effect:
'We hereby require you, in accordance with clause VI of the Schedule to the Indian Electricity Act, 1910, within one month or within such longer period as the Electric Inspector may allow, from the date of this requisition, to supply energy for the premises owned by us............
This requisition is for:
change of location of service from our old houses M. No. 3200 and M.N. 2719, Kazipura, Nasik City.....'
The defendant company returned the requisitions to the plaintiffs with their letters exhibits 51 and 54 pointing out again to them that such transfers had been stopped by the company with, effect from January 1, 1948, and therefore it was not possible for them to grant the requisitions. Thereupon on September 12, 1949, the present suits were filed by the plaintiffs.
(2) It was contended by the plaintiffs in their suits that the refusal on the part of the defendant company to allow the transfer of the service connections from their old houses to their new buildings was illegal, unjust and arbitrary, that the defendant company had given substituted connections for the supply of electrical energy to several persons in Nasik even after August 1, 1948, that the company was bound under the law to comply with the requisitions of the plaintiffs, and that therefore the company should be served with a mandatory injunction and should be called upon to comply with the requisitions.
(3) The suits were resisted by the defendant company on several grounds, the more important ones of which being (1) the requisitions dated September 5, 1949, which were actually served on the company were not in accordance with the requirements of law; (2) there was no statutory obligation on the defendant company to comply with such requisitions; (3) although it was true that the company had allowed the transfers of service connections in some cases it had been found that the load, after such transfers were allowed, had increased; (4) the defendant company was relieved of its statutory obligation (which was cast upon it under Section 22 of the Indian Electricity Act (IX of 1910) in viewof the order of the Government of Bombay issued under Section 5, Sub-section (1) of the Bombay Electricity (Emergency Powers) Act, 1946; and it was prayed that the suits should be dismissed.
(4) The learned trial Judge held that the plaintiffs were entitled to the transfer of their service connections to their new buildings and that it was not competent under the law to the defendant company to refuse the transfer of the connections. He also came, to the conclusion that the defendant company was not relieved of its statutory obligation by the order of the Government of Bombay issued under Section 5, Sub-section (1) of the Bombay Electricity (Emergency Powers) Act, 1946. Consistently with those findings he decreed both the suits. On the defendant company appealing, it was held by the learned District Judge, (1) that the requisitions dated September 5, 1949, which were made by the plaintiffs in both suits to the defendant company were not in accordance with the statutory requirements; (2) that there was no statutory obligation on the defendant company to make the transfer of service connections; (3) that the defendant company was not bound to move Government for permission to transfer the service connections; and (4) that the case for a mandatory injunction on the company was not made out by the plaintiffs. Accordingly the learned appellate Judge set aside the decrees which were passed by the trial Court in favour of the plaintiffs, allowed the appeals and directed both the suits to be dismissed. Against those appellate decisions the original plaintiffs have come in appeal.
(5) Before dealing with the specific points which were pressed before us by Mr. Desai for the appellants in both the appeals, it appears necessary to refer to certain correspondence and orders of Government which have been brought on the record of the suits. On March 7, 1942 an order was passed by the Government of India under Sub-rule (2) of Rule 81 of the Defence of India Rules saying:
'1. Notwithstanding anything contained in the Indian Electricity Act, 1910 (IX of 1910) or any license granted thereunder, the Nasik-Deolali Electric Supply Company Ltd., ....shall not... enter into any fresh contract or agreement with any person for a supply, or any increase in the supply, of electrical energy, if the fulfilment of such contract or agreement requires the provision of any service wires, cables or connections not already installed.'
Thereupon a question arose whether it was permissible for an electric supply undertaking to grant a supply of electrical energy at a new place provided that it was in substitution of supply at another place and provided that no extra wires or other electrical equipment were required. That question was referred to Government and the Government of India said by-exhibit 27, dated Juno 15, 1942, that they did not see any objection to the grant of supply in such cases provided that the supply undertaking was satisfied that the new electrical equipment had not been obtained, etc., etc. Then on December 15, 1943, the Igatpuri Electric Supply Company, Bombay, were informed by the Deputy Secretary to the Government of Bombay, Public Works Department, that the responsibility of satisfying that no new electrical equipment was utilized by the consumers in cases of transfer of connection permissible under the Government of India letter dated June 15,1942, as amplified by paragraph 5 of the Central Electric Power Control Board's memorandum No. A. 855, dated January 20, 1943, was primarily of the electricity supply undertaking concerned. On August 3, 1946, the defendant Company wrote to the Government of Bombay, Public Works Department, seeking for clarification on certain points. They wrote:
'We feel that no Government permission is necessary regarding such additions or alterations to existing installations as long as the connected load or the maximum demand is not increased, please confirm,
In connection with change of locations of services also we feel that no Government permission is now required provided that there are no changes in consumer and connected load and also maximum demand, subject to the condition that the installation at the old place is entirely removed, please confirm.'
The Government of Bombay replied to the defendant company saying that the presumptions drawn by them were confirmed (exhibit 33). Thereafter on September 19, 1946, the defendant company wrote again to the Government of Bombay asking for a further clarification on another point. They said:
'We also presume that no Government sanction is required for changing service location where we may need extra service material, other conditions such as connected load and maximum demand remain as given in our above mentioned letter.'
That presumption also was confirmed by Government (exhibit 35).
(6) On October 1, 1946, an order was passed by the Government of Bombay under Section 5, Sub-section (1) of the Bombay Electricity (Emergency Powers) Act, 1946 (Bom. Act XX of 1946), which stated as under amongst other things:
'Notwithstanding anything contained in the Indian Electricity Act, 1910,......Messrs. The Nasik-Deolali Electric Supply Co.. Limited,--
(1) shall not comply, except with the permission of the Provincial Government, with -
(a)the provisions of any contract, agreement or requisition
for the supply (other than the resumption of a supply), or an increase in the supply, of electrical energy to any person;......'
Then on March 22, 1947, the control which was imposed on the supply of electrical energy by the above mentioned order (exhibit 36) dated October 1, 1946, was released and it was directed as follows (exhibit 37):
'With regard to the transfer of loads, I am to invite your attention to Government letter No. 1932/36-E1 dated 15-12-43 and to state that heretofore transfer of load from one place to another could be effected provided no additional material was used either by you or the consumer in effecting such transfer. You are now permitted to effect transfer of loads even with the use of additional materials provided the load in each case remains unchanged.'
(7) Now, as far as the specific points which have been pressed before us by Mr. Desai in these appeals are concerned, they are mainly two. (1) As the load is not likely to be increased by the transfer of the service connections which have been sought by the plaintiffs, the defendant company by reason of the statutory obligation which has been cast upon it by Section 22 of the Indian Electricity Act, 1910, is bound to transfer the service connections to the new buildings of the plaintiffs. Permission of Government is notnecessary for allowing the transfer, in view of the orders of Government contained in exhibit 37, dated March 22, 1947. (2) Assuming that the load was likely to be changed by the transfer of the service connections even so, there is a statutory obligation on the defendant company to allow the transfer after getting permission from Government. For this submission also Mr. Desai has relied on ex. 37 read with ex. 36.
(8) Dealing with the first of these two points, it is argued by Mr. Desai that since the same number of electric points as were existing in the old premises of the plaintiffs have been sought to be transferred to the new buildings, no change in the load is likely to result, and that, that being so, in view of the directions of Government contained in ex. 37, it was obligatory upon the defendant company to allow the transfer of service connections, no permission of Government being necessary for the purpose. Now, in our opinion, the argument that, since the number of electric points is going to be the same in the new buildings as in the old ones, the load is not likely to increase, is not a sound one. It assumes that the potential consumption of electrical energy as distinguished from the actual consumption is the basis for determining the load. Now, it is to be remembered that electrical points are not given on the basis of potential consumption of electrical energy, but they are given on the basis of reasonable and probable consumption of electrical energy. Simply because a certain number of points is given to the occupier of certain premises, it does not necessarily mean that all the points would be used, say from evening to morning or for all the twenty-four hours. Although a number of points may be supplied, normally the calculations of a load would be made from the probable period for which the points are likely to be used. If old houses are situated in a locality like the Kazipura locality, it is probable that all the points may not be used for all the time, say from evening to morning or evening to mid-night. It is not seriously disputed before us that the new premises of the plaintiffs situated on the Agra Road are more spacious and equipped with more modern amenities than their old buildings situated in Kazipura. It was therefore contended by the learned Advocate-General that in this case it was quite probable that more points would be simultaneously used in the new premises than was done in the old buildings. We are satisfied that this is a real probability. The new buildings being much better, more modern and more spacious than the old houses, it was probable that many of the points, if not all, would be simultaneously worked in the new houses and this would lead to an increase in the actual load. We cannot therefore accept the argument advanced by Mr. Desai for the appellants in both the appeals that the load is expected to remain the same even after the transfer of the service connections, and that therefore, according to the directions of Government contained in Exh. 37, the defendant company was bound to transfer the service connections.
(9) It is the case of the defendant company that the transfer of service connections has always led to the increase in the load. It is a case which the manager of the company put forth in his correspondence with the consumers and also with Government. For instance, in his reply to the Rajputana Textiles (Agencies) Ltd. (exhibit 38), dated January 20, 1943, the managerpointed out that the load always had a tendency to increase whenever a service was transferred as was evident from the daily maximum demand reported in their monthly generation reports. In fact, it was pointed out to the Rajputana Textiles (Agencies) Ltd. that the company had discontinued the practice of service transfers with effect from January 1, 1948, on that ground, namely, the tendency to increase the load as the result Of the transfer of service connections. Then, again, in his letter (exhibit 44), dated June 9, 1948, to the Under-Secretary to Government, Public Works Department, Bombay, the manager pointed out that service transfers had definitely increased the load and considering the critical situation in the company's power house they could not agree to any service connections for lighting services. Now, as far as this witness, namely, the manager of the defendant company, is concerned, the learned Judge of the trial Court observed that he was a 'perfectly straight and upright man.' In our opinion, therefore, there is no reason to doubt the evidence given by him which shows clearly that the transfer of service connections generally leads to increase in load on the engine and that it was for that reason that the company had discontinued making transfers of service connections since January 1, 1948. Therefore, on a carefil consideration of the record as it stands before us, we see no reason to disregard the statement of the manager of the defendant company to the effect that the load has generally increased as the result of the transfer of service connections.
(10) Mr. Desai for the appellants has argued that the words 'provided the load in each case remains unchanged' in Ex. 37 should be read to mean 'provided the load in each case is found to remain unchanged.' In other words, his submission is that when an application for transfer of service connection is made by a consumer the defendant company ought to allow it at once in the first instance and then, if it is found as the result of actual experience that the load has increased, the connection may be severed. We have given a careful thought to this submission; but we feel that we cannot accept it. There is no provision in law which would justify the discontinuance of the connection once granted. It would, therefore, not be legal for the defendant company to revoke the transfer of service connection after actually finding that the load as the result of the transfer had increased. We are satisfied in this case from the evidence of the manager of the defendant company that the transfer of service connections, generally speaking, leads to the increase in load. Therefore, the first point of Mr. Desai, namely that the load was not likely to increase in this case by reason of the transfer and that therefore the defendant company was bound to sanction the transfer, fails.
(11) The second contention of Mr. Desai which was pressed before us was that even if it be assumed that the load was likely to change by reason of the transfer of the service connection, even so, there was a statutory obligation on the defendant company in view of Section 22 of the Indian Electricity Act, 1910 (IX of 1910) to allow the transfer of the service connections, but with the permission of Government as required by the order of Government (Ex. 36) read in the light of its subsequentrelaxation (Ex. 37). What is argued by Mr. Desai is that under Section 22 of the Indian Electricity Act, 1910, every person shall be entitled, on application, to a supply on the same terms as those on which any other person in the same area is entitled in similar circumstances to a corresponding supply. Our attention was then drawn by Mr. Desai to clause VI of the Schedule to the Act, which says, amongst other things:
'(1) Where....... a requisition is made by the owner or occupier of any premises situate within the area of supply requiring the licensee to supply energy for such premises, the licensee shall...... supply..... .energy in accordance with the requisition:...
Provided, fourthly, that, if any requisition is made for a supply of energy and the licensee can prove, to the satisfaction of an Electric Inspector,--
(a) that the nearest distributing main is already loaded up to its full current-carrying capacity,......'
It is pointed out by Mr. Desai that in this case it is not the case of the defendant company that the distributing main was already loaded up to its full current-carrying capacity. Therefore, from the above mentioned provisions, it is argued by Mr. Desai that there is a statutory obligation on the defendant company to supply electrical energy to the plaintiffs as their houses are situated within the area of supply. Then, proceeding further, Mr. Desai has contended that what was done by the order of Government (Ex.36), dated October 1 1946, which was issued under Section 5, Sub-section (1) of the Bombay Electricity (Emergency Powers) Act, 1946, was that the above mentioned statutory obligation which was cast upon the defendant company for the supply of electrical energy to consumers was modified by providing that thereafter the defendant company 'shall not comply , except with the permission of the provincial Government, with the provisions of any contract, agreement or requisition......for the supply......of electrical energy ...' It was then contended that the modification which was contained in the order (Ex. 36) was subsequently relaxed by another order of Government (Ex. 37), dated March 22, 1947, by which it was directed that it was not necessary for the defendant company to obtain the permission of Government in cases in which the load remained unchanged, although the said cases were those in which a transfer of the service connection was to be effected with the use of additional materials. In this way, it is submitted by Mr. Desai that, even if the load is likely to change, all that the defendant company has got to do in order to discharge the statutory obligation is to obtain the permission of Government and then carry out the transfer of the service connections.
(12) We are not impressed by this argument. It is to be noticed that the object of the Bombay Electricity (Emergency Powers) Act, 1946 (Bom. Act XX of 1946), under Section 5, Sub-section (1), of which the order (Ex. 36) was passed, was to control the supply of electrical energy. Consistently with that intention which underlay the passing of Bombay Act XX of 1946, the order Ex. 36 said to the defendant company 'notwithstanding anything contained in the Indian Electricity Act, 1910, you shall not comply, except with the permission of the Provincial Government, with the provisions ...requisition ...' In our opinion, these words 'you shall not comply, except with the permission of the Provincial Government,' showed that the original statutory obligation which lay on the defendant company under Section 22 of the Indian Electricity Act, 1910, was cancelled by this order (Ex. 36) and an actual prohibition was imposed upon the defendant company to the effect that they were not to supply electrical energy on a requisition, except with the permission of the Provincial Government. Who exactly is to approach the Government for permission is not quite clear as the record stands before us. It may be that a private consumer who wants the transfer of the service connection to another building may approach Government or it may be that the electrical company which finds that the load is likely to increase but yet can be met having regard to the fact that the distributing main is not loaded up to its full current carrying capacity may move Government for permission. With that we arc not really much concerned in this case. What is necessary to be remembered is that, in law, as it stands, there is no longer any statutory obligation on the defendant company to allow the transfer of the service connection where such transfer involves likelihood of increase in the load. The second point which was pressed before us by Mr. Desai also, therefore, fails.
(13) It is contended by the learned Advocate-General that the suits of the plaintiffs deserve to fail on another ground. Our attention is drawn to paragraph (5) of clause VI of the Schedule to the Indian Electricity Act, 1910, which lays down:
'Every requisition under this clause shall be in a form to be prescribed by rules under the Indian Electricity Act, 1910;...'
This means that the requisitions contemplated under the Act are required to be made in a form prescribed by the Act. If a requisition is not made in a prescribed form, it is not a requisition as required by law and the electricity company is not bound to comply with it. In this case we have got before us a requisition which was made by the plaintiff Rao Sahab Manilal Gangaram Sindore. In the column 'This requisition is for' there are five items mentioned, namely, 'a new service, a tapping, an extension to existing installation from Service No., a reconnection, a change of name from.' A transfer of service connection is not included in this form at all. What was done by the plaintiffs was that the words 'A new service' comprised in item (1) were struck off and instead was written 'Change of location of service from my old house M. No. 3200, Kazipura, Nasik City.' The point to be noted is that in the form as prescribed by the Act there is no provision for a requisition for change of location of service and therefore the requisitions made by the plaintiffs were not in a prescribed form.
(14) Our attention was invited to 'Bhagvanji v. Ahmedabad Electricity Co.' 26 Bom L R 1206 in which it was held that an action brought by a consumer against the Electricity Company deserved to fail as there was no application made by him as required by law Of course, it is not clear whether in that case there was no application made at all, or the application which was made was not in accordance with law. But this case is cited in support of the argument that where a requisition is not made in a prescribed formi.e., as required by law, the action against an electricity company deserves to fail.
(15) Now, in our opinion, if this were the only ground urged before us for the dismissal of the suits, we would not have accepted it, since it is not the fault of the plaintiffs that the form prescribed under the Indian Electricity Act, 1910, makes no provision for the transfer of service connections. Had there been no other grounds for dismissing the suits and had we been satisfied that the change of location of service would not have entailed greater load, we would have treated the requisition as one for the transfer of service connections and would have directed the defendant company to allow it on the ground that what was asked for was only a substitution of service at another place. In this case, however, the suits fail as the defendant company has been actually prohibited in case of a likelihood of increase in the load, from complying with such requisitions.
(16) Lastly, it is contended by Mr. Desai for the appellants that even if the Court came to the conclusion that the defendant company was under no statutory obligation to allow the transfer of service connections after obtaining Government permission, it should have at least granted a mandatory injunction against the company, directing it to forward the requisitions to Government for orders. In our opinion, the submission must fail, since there was no demand from the plaintiffs on the defendant company that they should forward the requisitions to Government for orders and consequently there has been no refusal of any such demand by the company. The mandatory injunction cannot be granted unless there is a demand and a refusal of that demand.
(17) The result, therefore, is that both the appeals fail and are dismissed with costs.
(18) Appeals dismissed.