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State and anr. Vs. Shantilal R. Desai - Court Judgment

LegalCrystal Citation
SubjectElectricity
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal Nos. 1234 and 1405 of 1957
Judge
Reported inAIR1958Bom510; (1958)60BOMLR807; 1958CriLJ1467; ILR1958Bom944
ActsElectricity Act, 1910 - Sections 12, 12(1), 12(2), 13, 13(1), 13(2), 14, 15, 16, 17, 18, 19 and 47
AppellantState and anr.
RespondentShantilal R. Desai
Appellant AdvocateV.T. Gambhirwall, Asst. Govt. Pleader and ;I.C. Bhatt, Adv.
Respondent AdvocateS.S. Kavlekar and ;A.N. Shirodkar, Advs.
Excerpt:
.....accused, a licensee under the indian electricity act, 1910, who was authorised by his license to supply electricity in a part of a town, had laid supply lines along various roads in the town. later, the accused converted his supply from d.c. to a.c. current and on account of this alteration he set up a larger number of electric poles over certain public streets in the town to support the aerial wires. before carrying out this work, the accused failed to give any notice to the municipality concerned. the accused was prosecuted under section 47 read with section 13(1) of the indian electricity act on the ground that it was obligatory on the accused under 13(1) of the act to give a notice of the intended works to the municipality. the accused contended that section 12 and section 13 of..........is a licensee under the indian electricity act, 1910. he was authorised by his licence to supply electricity in a part of the town of billi-mora. he had laid supply lines along various roads in the town, including the mahatma gandhi road, the station road and the manekbai tata road. it appears that towards the end of 1955 he converted his supply from d.c. to a.c. current. on account of this alteration he was required to set up a larger number of electric poles to support the aerial wires. the work of setting up additional poles was carried out by him on or about 7-12-1955. before carrying out this work, the licensee failed to give any notice to the billimora municipality. the municipality claimed that it was obligatory on the licensee under section 13(1) of the indian.....
Judgment:

Tarkunde, J.

1. The facts of this case are not in dispute. The respondent is a licensee under the Indian Electricity Act, 1910. He was authorised by his licence to supply electricity in a part of the town of Billi-mora. He had laid supply lines along various roads in the town, including the Mahatma Gandhi Road, the Station Road and the Manekbai Tata Road. It appears that towards the end of 1955 he converted his supply from D.C. to A.C. current. On account of this alteration he was required to set up a larger number of electric poles to support the aerial wires. The work of setting up additional poles was carried out by him on or about 7-12-1955. Before carrying out this work, the licensee failed to give any notice to the Billimora Municipality. The Municipality claimed that it was obligatory on the licensee under Section 13(1) of the Indian Electricity Act to give a notice of the intended works to the Municipality. For his failure to do so the respondent was prosecuted under Section 47 read with section 13(1) of the Act. The Judicial Magistrate who heard the case acquitted the respondent of the alleged offence on the ground that the respondent, in setting up the new electric poles, was within his rights under Section 12 of the Act. From this order of acquittal the State as well as the Billimora Municipality have filed these two appeals.

2. The order of acquittal passed by the learned Judicial Magistrate is based on the assumption that Section 12 and Section 13 of the Act are mutually exclusive, that if a case is covered by Section 12, it does not attract the operation of Section 13. That was also the purport of the argument advanced by Mr. Kavlekar on behalf of the respondent before us. Before considering this argument, it is necessary to see whether the provisions of Section 13, considered by themselves, apply to this case.

3. It is clear from the wording of Section 13 that it applies to cases 'where the exercise of any of the powers of a licensee in relation to the execution of any works involves the placing of any works in, under, over, along or across any street, railway tramway, canal or waterway'. In this case what the licensee did was to place a number of electric poles in and over three public streets. This was done by the licensee in the exercise of his powers in relation to the supply of electric energy. It is clear, therefore, that Section 13 applies in terms to the present case.

4. Now, Sub-section (1)(a) of Section 13, in so far as it relates to the placing of any works (the electric poles in this case) in or over Municipal streets, requires that the licensee shall serve upon the Municipality, not less than one month before commencing the execution of the works, a written notice describing the proposed works, together with a section and plan thereof. This was admittedly not done by the respondent. Sub-section (1)(b) of section 13 provides that if the Municipality intimates to the licensee its disapproval of the proposed works, or if the Municipality intimates its approval subject to amendment, the licensee may appeal to the State Government, and that the decision of the State Government on the question in dispute shall be final. Clause (c) provides that if the Municipality does not communicate its approval or disapproval within a month, the licensee may proceed to carry out the works after giving not less than forty eight hours' notice in writing to the Municipality. Now, Sub-section (1)(a) excludes from its application certain types of works, and one such exception is where the proposed work consists of 'the repairs, renewal or amendment of existing works of which the character or position is not to be altered'. Where the proposed work consists merely of the repair, renewal or amendment of existing works without altering their character or position, Clause (g) of sub-s. (1) of Section 13 applies, and that clause provides that in such cases the licensee shall give a forty-eight hours' notice to the Municipality and then execute the proposed work -- in the present case the intended work -- fell within Clause (a) and not Clause (g), because the licensee wanted to set up new electric poles and not merely to repair, renew or amend existing works. It is thus clear that the licensee was required by Section 13(1)(a) to give a written notice of not less than one month' to the Municipality before commencing the execution of the proposed work. Having failed to do so, he would clearly be guilty of an offence under Section 47 of the Electricity Act, unless Mr. Kavlekar is right in his contention that Section 13 does not apply to this case on account of its being covered by Section 12 of the Act.

5. Sub-section (1) of Section 12 confers wide-powers on a licensee. Subject to the terms and conditions of his licence, he may, among other-things, 'open and break up the soil and pavement of any street, railway or tramway', 'lay down and place electric supply-lines and other works', and generally, 'do all other acts necessary for the due supply of energy'. The right to nut up electric poles along a street is clearly included in these powers. The remaining Sub-sections of Section 12 imposed restrictions on the exercise of the general powers mentioned in Sub-section (1) and the main argument of Mr. Kavlekar is that Sub-section (2) of that Section recognises the right of the licensee to execute, without the consent of the Municipality, any work in or over a public street, if the work is necessary for the supply of electricity. Tlie portion of Sub-section (2) on which Mr. Kavlekar relies inns as follows :

'(2) Nothing contained in Sub-section (1) shall be deemed to authorise or empower a licensee, without the consent of the local authority or of the owner and occupier concerned, as the case may be, to lay down or place, any electric supply-line, or other work in, through or against any building, or on over or under any land not dedicated to public use whereon, where-over or whcreunder any electric supply-line or work has not already been lawfully laid down or placed by such licensee.'

Mr. Kavlekar argues that public road must be regarded as land 'dedicated to public use'. We agree that that is the natural meaning of that expression. The same expression occurs in the corresponding English Acts and has been known to cover public streets. Sub-section (2) of Section 12, therefore means, in so far as is relevant, that a licensee must have the consent of the Municipality if he wishes to exercise the powers mentioned in Sub-section (1) in respect of Municipal land which does not consist of a public street, unless on such land a supply line has already been lawfully laid down. It is clear that this provision does not apply to work on public streets at all. It is a negative provision, and it says that certain works cannot be executed by a licensee without the consent of the Municipality. Mr. Kavlekar wants us to interpret this provision to mean, in the first place, that all other works, not covered by Sub-section (2), can be executed without the consent of the Municipality, and secondly, that since the licensee can execute such works without the consent of the Municipality, the provision of Section 13(1) requiring a licensee to give a notice to the Municipality can have no application to such a case.

6. The argument of Mr. Kavlekar would, it is obvious, lead to absurd results. It would mean that a licensee may, without giving any intimation to the Municipality, 'open and break up the soil and pavement' of any public street to lay down a supply line. He may similarly set up an electric pole in the middle of a public street. On this view, no notice is required to be given to the Municipality by a licensee before executing any work on a public street whether a supply line has been laid thereon or not, or on any other Municipal land if a supply line has been lawfully laid thereon.

7. It is wrong in our judgment to interpret Sub-section (2) of Section 12 as a positive provision that all works not covered by that sub-section can always be executed irrespective of whether the Municipality approves or disapproves of them. It is also wrong to assume that a notice to the Municipality is required to be given only where the consent of the Municipality is necessary. A notice amounts to an intimation in advance, and has to be given in all cases covered by Section 13(1), including the very limited cases mentioned in clause (p) of that sub-section. That clause, as stated earlier, relates to the repair, renewal or amendment of existing works without altering the character or position thereof, and the clause requires a licensee to give a forty-eight hours' notice before executing such work.

8. Sections 12 to 19 of the Indian Electricity Act are grouped together in part II of the Act under the heading 'Works'. These sections must be read together, and not in isolation from one another, as if they covered separate topics. Considering these provisions as a whole, it is clear that the general powers of a licensee in executing the works necessary for the supply of electricity are mentioned in Sub-section (1) of Section 12, that the remaining Sub-sections of Section 12, limit or qualify some of these powers, and that further limitations and qualifications on the same powers are stated in Sections 13 to 19 of the Act. In the present case, the power of the licensee to put up electric poles along public streels is recognised by Section 12(1); at the same time, Section 13(1) requires that the power can be exercised only in the manner provided therein. We cannot, therefore, accept the view, which found favour with the Court below, that Section 13 docs not apply to this case simply because it is covered by Section 12.

9. Mr. Kavlekar relies on a decision of the Calcutta High Court in Municipal Commr., Barrackpore v. Barrackpore Electric Supply Corporation, Ltd. : AIR1937Cal521 That was a suit by the Barrackpore Municipality to recover rent, or, in the alternative, damages for use and occupation from a licensee in respect of the space occupied by the electric poles set up by the licensee along some public streets. In confirming the dismissal of the suit Mukherjea J. said, and it is on tin's statement that Mr. Kavlekar relies, that

'in order to enable the licensee to place lines or works in lands dedicated to public use, no consent (of the Municipality) is necessary'

This statement was made with reference to Section 12 of the Act. Section 13 was not considered in the judgment as it did not fall for consideration. The Municipality did not allege that no notice was given to it under Section 13(1), nor is it clear from the report that no notice was given to the Municipality. Section 13(2) requires that the licensee shall make full compensation for any loss or damage caused by his failure to comply with Section 13(1), but the Municipality did not prefer its claim under Section 13(2). The case, therefore, affords no support to Mr. Kavle-kar's argument.

10. Accordingly, we allow these appeals, setaside the order of acquittal, and convict the respondent of the offence under Section 47 read with Section 13(1)of the Indian Electricity Act. The respondent contested this case as a test case and did not intendto defy the provisions of law. We sentence him topay a fine of Rs. 25/- and in default to undergosimple imprisonment for a week.

11. Appeals allowed.


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