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R.J. Singh Vs. the Electric Inspector to the Govt. of Uttar Pradesh at Lucknow and anr. - Court Judgment

LegalCrystal Citation
SubjectElectricity;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 3554 of 1958
Judge
Reported inAIR1960All87
ActsElectricity Act, 1910 - Sections 37; Electricity Rules - Rule 45; Constitution of India - Articles 14, 19 and 245
AppellantR.J. Singh
RespondentThe Electric Inspector to the Govt. of Uttar Pradesh at Lucknow and anr.
Appellant AdvocateA.P. Pandey, Adv.
Respondent AdvocateN.D. Pant, Junior Standing Counsel
DispositionPetition allowed
Excerpt:
electricity - renewal of licence - section 37 of electricity act, 1910, rule 45 of rules formed there under and clauses 21 and 24 of notification no. 877/e1-86-1938 d/-2-6-1942 - as per notification licence of following year can be cancelled for negligence done in previous year -notification held as legal - licence is a continuing entity unless cancelled. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any..........37 of the indian electricity act power has been given to the central electricity board to make rules. rule 45 has been framed under the provisions of section 37 of the indian electricity act. it is submitted that inasmuch as the power to make rules has been delegatedto the central electricity board by section 37 of the indian electricity act the board is the delegate and it is not possible for the board in its turn to further delegate the power of making rules or conditions under which a licence can be issued to another authority i. e., the u. p. government. no other submission has been made before me.(5) i will first take the first submission of the learned counsel for the petitioner. a licence is granted under clause 12 of the notification. under clause 21 a licence can be.....
Judgment:
ORDER

Jagdish Sahai, J.

1. The petitioner obtained an A class electrical contractor's licence in the year 1950. It was renewed year after year till the year 1958. The petitioner carried on electric installations in connection with the Shiksha Prasar Pradarshni held by the Education Department of the State as also in the Allahabad Swadeshi Exhibition in the months ofOctober and November 1956. In the Allahabad, Swadeshi Exhibition the 14th of November 1956, was celebrated as the Prime Minister's birthday. There was a programme of fireworks from 9 to 11 p. m. that day. Visitors to the tune of twenty thousand had assembled to witness the fireworks, The petitioner at that time was sitting at his stall. At about 11 p. m. he received information that an old lady had received electric shock and was lying unconscious near about the police station. He rushed to the place of occurrence and saw the lady being taken in a car of the flying squad to the hospital. He enquired from the persons who were standing at the place but nobody could say as to how she received the shock. According to the petitioner he was not responsible for the accident. His version is as follows:

'The Janata Yojana wanted to exhibit films and pictures from 13-11-1956 and for this purpose the Yojana wanted a plug point. Dr. M. R. Narain, the Secretary of the Allahabad Swadeshi League directed the petitioner to furnish a plug point to the Yojana to exhibit film pictures. Accordingly on 13-11-1956 the deponent got a plug point fixed on a Balli at a height of about 6 feet from the ground behind the police stall. This was done under the supervision of an efficient supervisor holding the certificate of competency and working on the petitioner's staff. The Balli belonged to the police stall which had been pitched there for the purpose of supporting the string of the police stall. The ballis had been connected inter se for the purpose of strength by horizontal ballis at a height of about 2 feet from the ground. On the night of the accident there was a tremendous rush of visitors and the sight seers were seen resting themselves on the horizontal Ballis in order to have a clear vision of the display of the firework. On or about 16-11-1956 the Assistant Electrical Inspector, Sri Pratap Narain Mulla came to the premises of the Swadeshi Exhibition and made an enquiry from the petitioner in regard to the aforesaid accident. The petitioner gave him the version of the accident to the above effect.'

The police also made an investigation. According to the petitioner the police dropped the matter because they were of the opinion that the petitioner was not blameworthy. On 19-2-1957 the District Magistrate of Allahabad made an enquiry from the secretary of the Allahabad Swadeshi League and the secretary gave his version of the accident. According to the petitioner he has been furnished with the original communication of the District Magistrate and a true copy of the reply given by the secretary. The petitioner received a communication from the Electrical Inspector U. P., dated 19-11-1958. On 21-11-1958 whereby his licence was cancelled and be was precluded from obtaining a licence for the next two years. On these facts the petitioner has moved the present writ petition. The prayer in the petition is for the issue of an order, direction or writ in the nature of certiorari quashing the order dated 19-11-1958 (annexure B).

2. A counter affidavit has been filed which is sworn by Sri Pratap Narain Mulla Assistant Electric Inspector to the Government of U. P. It is stated therein that on 15-11-1956 the Electric Inspector to U. P. Government received a telegram from the U. P. Electric Supply Co. Ltd., Allahabad, that a lady had been electrocuted at the Allahabad Swadeshi Exhibition. Sri Mulla was therefore deputed to investigate into the master. He carried out the investigation at the spot on 16th, 17th and 18th November 1956. The services of M/s Kohli Photo Service were also requisitioned on 16-11-1956for taking photographs at the site of the accident. Sri Mulla also obtained copies of photographs taken by Sri S. K. Bose, Chief Fire Officer, Allahabad on 15-11-1956.

Sri Mulla recorded the statements of several persons and carried out an on the spot enquiry. He submitted his report to the Electric Inspector who forwarded it to the Government. The Government examined the investigation report and agreed with the recommendation made by Sri Mulla and the proposal of the Electric Inspector that the licence of the petitioner be cancelled and he be debarred from taking electrical contractor's licence for two years next. It is further alleged that the licence of the petitioner was cancelled under Clause 21(1) of the Government Notification No. 877/E1-86-1938 dated 2-6-1942 (hereinafter referred to as the Notification). It is alleged in the counter affidavit that the petitioner was negligent and after the accident had occurred most of the people who had gathered at the time were saying that the lady had become unconscious as a result of touching the electric wire.

It is stated that Sri M. P. Narayan also stated that most of the persons who were assembled there said that the lady had become unconscious on touching the electric wire. It is also alleged in the counter affidavit that Sri K. G. Mehrotra, Reserve Inspector. Police Lines, Allahabad, also said that the two ladies who were accompanying the lady who was electrocuted stated that the wire which was fixed to the Balli was hanging downwards and the old lady got electrocuted after touching it. It is also stated in the counter affidavit that Smt. Subba Laxmi and her sister Rajjam Bal who were accompanying the old lady also staged that the deceased caught hold of the wire by left hand and fell down on the ground.

3. A rejoinder affidavit has been filed which is sworn by Sri R. J. Singh the petitioner. It is not necessary to mention the various allegations made in the rejoinder affidavit. It is sufficient to state that the petitioner has reiterated the allegations made by him in his original affidavit. Along with this rejoinder affidavit has been filed an affidavit sworn by Sri M. P. Narayan the General Secretary of the Allahabad Swadeshi League which held the All India Swadeshi Exhibition and Mela in the months of November and December 1956. Sri Narayan has supported the case of the petitioner.

4. I have heard Mr. A. P. Pandey the learned counsel for the petitioner and Mr. N. D. Pant the learned Junior Standing Counsel. Mr. Pandey has made three submissions before me. His first submission is that Clause 21 of the Notification could not be applicable to the case because the incident took place in the year 1956 and the licence for the year 1958 was cancelled. Mr. Pandey's argument is that a licence remains in existence for a period of one year and it is not possible under Clause 21 of the Notification or any other provision to cancel a licence of a subsequent year for an accident or an act of negligence in an earlier year. The second contention of the learned counsel is that the Notification has no statutory foundation and in any case is hit by Articles 14 and 19 of the Constitution of India.

The third submission of the learned counsel is that the Notification has been issued under the provisions of old Rule 48 (and new Rule 45) of the Rules framed under the Indian Electricity Act. It is contended that under the provision of Section 37 of the Indian Electricity Act power has been given to the Central Electricity Board to make rules. Rule 45 has been framed under the provisions of Section 37 of the Indian Electricity Act. It is submitted that inasmuch as the power to make rules has been delegatedto the Central Electricity Board by Section 37 of the Indian Electricity Act the Board is the delegate and it is not possible for the Board in its turn to further delegate the power of making rules or conditions under which a licence can be issued to another authority i. e., the U. P. Government. No other submission has been made before me.

(5) I will first take the first submission of the learned counsel for the petitioner. A licence is granted under Clause 12 of the Notification. Under Clause 21 a licence can be cancelled if in the opinion of the Inspector the person to whom it has been issued is not fit to hold the licence. Clause 21 runs as follows:

'21. When contractor's licence may be cancelled:

(1) The Electric Inspector to Government may at any time cancel a Contractor's licence if the person (or firm) to whom (or which) the licence is granted is, in his opinion, not fit to hold the licence.

(2) Every order made by the Electric Inspector to Government under sub-condition (1) above shall be subject to revision by the Provincial Government.'

It is admitted case of the parties that the accident occurred in November 1955 and the petitioner's licence was, notwithstanding the accident, renewed in the year 1957 and again in the year 1958. For the determination of the correctness or otherwise of the submission of the learned counsel for the petitioner it is necessary to decide as to what is the real nature of the licence. Is it, as the learned counsel for the petitioner submits, that the licence is only for a year and after the expiry of that year it ceases to exist and a fresh licence comes into existence, or, as contended by the learned counsel for the respondents, is it that the licence continues if it is annually renewed and comes to an end only if it is not renewed? Clause 24 of the Notification runs as follows:

'24. Renewal of contractor's licence. -- Every electrical contractor's licence granted under these conditions shall be renewable annually. Failure to renew a licence shall render such licence liable to cancellation, and the full initial fee will be charged for the issue of a new licence. Applications for renewal together with the licence shall be submitted to the Electric Inspector to Government at least one month before the date of expiry of the licence.' It would appear from a perusal of the provisions of Clause 24 that a licence continues but for non-renewal it is liable to be cancelled. The words 'failure to renew a licence shall render such licence liable to cancellation,' to my mind are very significant. They indicate that a licence once issued continues and if it is not renewed it is liable to cancellation. If the idea was that a licence ceases to exist after the expiry of one year the expression 'liable to cancellation' would not have been used. Apart from these two clauses there is nothing else in the notification which throws any light on the nature of the licence. It is true that in a sense a licence is dead after the period of one year and it is brought to life again if it is renewed, but to my mind a perusal of the clauses mentioned above leads to the conclusion that a licence has at continued existence though every year it has got to be renewed.

6. Learned counsel for the petitioner has placed reliance upon the case of Kishan Chand v. Commissioner of Police, AIR 1959 Cal 123, where it was held that since a licence is only to be granted? for the period of one year a renewal must be deemed to be a fresh licence. On the basis of this case it is contended that the licence for 1956 came to an end when the licence for 1957 was given and it is submitted that since that particular licence hadcome to an end it is not possible to cancel a new licence which was issued in the year 1958 for a mistake or negligence committed during the existence of the 1956 licence. I have already said above that a perusal of Clause 24 of the notification leads to the conclusion that a licence is considered to be a continuing entity, though renewed every year and if not renewed it is deemed to be cancelled. In the first place the Calcutta case is distinguishable and in the second place what the learned Judge deciding that case really meant to say was that in a sense since a licence is issued for a year only a renewal must he deemed to be a fresh licence. The relevant provisions in the Calcutta case were different from those under consideration in the present case.

7. The next case on which the learned counsel for the petitioner has placed reliance is that of Amaravathi Motor Transport Co. v. State of Andhra, AIR 1956 Andhra 232, where it was observed as follows:

'The last argument is that the order of the Regional Transport Authority suspending the permit cannot operate on the renewed permit now in force. From the facts stated earlier, it is apparent that this argument would avail the petitioner in writ petitions Nos. 398 of 1954 and 418 of 1954 and not in Writ Petition No. 305 of 1955, for in the last Writ Petition a renewed permit only was suspended .

This argument is supported by a decision of a Division Bench of this Court of which one of us (The Chief Justice) was a member in 'Anjaiah v. Regional Transport Officer, Guntur', Writ Petn. No. 295 of 1954: (AIR 1957 Andh Pra 470). The Division Bench held that a renewed permit was substantially a new permit and, therefore, the order suspending the earlier permit could not operate on the new permit.'

8. It would be noticed that under the provisions of Section 58 of the Motor Vehicles Act which is reproduced below, a renewed permit is deemed to be a new permit:

'58(1) A permit other than a temporary permit issued under Section 62 shall be effective without renewal for such period, not less than three years and not more than five years, as the Regional Transport Authority may in its discretion specify in the permit:

Provided that in the case of a permit issued or renewed within two years of the commencement of

this Act, the permit shall be effective without renewal for such period of less than three years as the State Government may prescribe.

(2) A permit may be renewed on an application made and disposed of as if it were an application for a permit:

Provided that, other conditions being equal, an application for renewal shall be given preference over new applications for permits.'

9. Even for the renewal of a permit an application has to be made under Section 57 of the Motor Vehicles Act. The application for renewal as also fresh applications for a contract carriage permit or a private carrier's permit are all published in the Government Gazette and objections are invited to the grant of such permits. In fact the scheme of the Motor Vehicles Act would show that a renewed permit is treated on the same basis as a new permit. The Andhra case therefore can be no authority for the case before us where we are concerned with the language of Clauses 21 and 24 of the Notification. In the Andhra case all that the learned Judges held was that a renewed permit under the Motor Vehicles Act was substantially a new permit and not that there could be no difference between a new permitand a renewed permit. Inasmuch as I have already held that a licence of electrical contractor is a continuing entity I see no force in the first submission of the learned counsel for the petitioner. Assuming that a person committed a highly negligent act on the last day of the year for which his permit was granted and the enquiry into the conduct of the licensee would take some time the result of Mr. Pandey's submission would be that his permit can never be cancelled. There is no provision in the Notification dealing with renewals of permits except Clause 24.

There is no provision which provides that a licence cannot be renewed on the ground that the licensee is unfit to hold the licence. The result of accepting the submission of Mr. Pandey would be that there being no provision for refusal to renew on the ground of it being not possible to complete the enquiry for an alleged lapse on the part of the licensee within the period for which the licence was issued, the licence can never be cancelled and must be renewed from year to year. In my opinion there is nothing either in the Indian Electricity Act or the Rules framed thereunder or in the Notification to justify such a submission.

10. I, therefore, overruled the first contention of the learned counsel for the petitioner.

11. Coming to the second contention of the learned counsel for the petitioner that Clause 21 of the Notification is in violation of Articles 14 and 19 of the Constitution of India, the ground of attack is that unrestricted powers have been given to the Electric Inspector to cancel the license. It is said that there is no classification and there is nothing in the notification to guide the exercise of powers by the Electric Inspector. It is further contended that there is no preamble to the Notification and no guiding principles have been laid down therein. Mr. Pande contends that the expression 'not fit to hold the licence' is a very wide expression and in the absence of there being any classification or provisions to guide the Electric Inspector in deciding as to which are the persons who are fit to hold the licence and which are those who are not fit to hold the licence, the power given to him is arbitrary, discriminatory and unreasonable. Reliance has been placed upon the case of Dwarka Prasad v. State of U. P., AIR 1954 SC 224, In that case Clause 4(3) of the U. P. Coal Control Order, 1953 was challenged. The said Clause runs as follows:

'4. (1) Every application for licence under this Order shall be made in the form given in Schedule I appended to this Order.

(2) A licence granted under this order shall be in Form 'A' or Form 'B' appended to this Order and the holder of a licence granted under this Order shall comply with any directions that may be issued to him by the Licensing Authority in regard to the purchase, sale, storage or distribution of coal.

(3) The Licensing Authority may grant, refuse to grant, renew or refuse to renew a licence and may suspend, cancel, revoke or modify any licence or any terms thereof granted by him under the order for reasons to be recorded. Provided that every power which is under this order exercisable by the Licensing Authority shall also he exercisable by the State Coal Controller or any person authorised by him in this behalf.'

After dealing with the attack on this provision and after considering the question of the said provision being ultra vires in view of Article 14 of the Constitution, their Lordships of the Supreme Court held that that provision was ultra vires. In the present case no rules have been framed and no directions have been given to regulate and guide the discretion of the Licensing Authority. Practically theorder commits to the unrestrained will of a single individual the power to cancel the licence in any way he chooses and on whatsoever ground he likes. It is true that in Clause 4 of the U. P. Coal Control Order, 1953, the words 'in his opinion not fit to hold licence' have not been given. It is also true that under the Coal Control Order there was no provision making the order passed by the Licensing Authority revisable by the Government as is in the present case. But to my mind that would not make any difference because, as I have said above, it depends upon the sweet will of the Electric Inspector to cancel the licence of one person and not to cancel that of the other, though similar circumstances may be existing in the case of those two. I am therefore of the opinion that Clause 21 of the Notification is hit by Article 14 of the Constitution of India.

Once it is held that it is hit by Article 14 of the Constitution on the finding that the power given is unreasonable and discriminatory it must also be held that the said Clause is violative of Article 19(g) of the Constitution of India. A person has got a right to carry on the business of electric contractor, though that right is subject to reasonable restrictions. Inasmuch as I have held above that Clause 21 is unreasonable it has got to be held that it does not provide any reasonable restriction on the petitioner's carrying on the work or business of an electric licencee. I am therefore of the opinion that this Clause is also hit by Article 19(g) of the Constitution of India.

12. The third submission of Mr. Pandey learned counsel for the petitioner is that there has been delegation of essential legislative power. The argument of the learned counsel is that under Section 37 of the Indian Electricity Act the Central Electricity Board has been given power to frame rules. The

Central Electricity Board framed Rule 45 (Rule 48 of the old Rules). Rule 45 provides that no electric installation work etc. shall be carried out on behalf of any consumer except by an electric contractor licensed in this behalf by the State Government.

The contention is that in this Rule itself it should have been laid down as to what would be the qualifications of an electric inspector and what would be the grounds on which his licence can be cancelled. It is contended that inasmuch as it has not been done by the Rule making authority but the power of making Rule or laying down conditions for the issue of an electric contractor's licence and the conditions for its cancellation have been left to the State Government there has been a sub-delegation of power. The contention is that a delegate himself cannot delegate to another person. The submission of the learned counsel is that in issuing the notification the State Government have exercised essential legislative functions which they could not have done under the provisions of the Indian Electricity Act and they have purported to do so only by virtue of Rule 45 (Rule 48 of the Old Rules).

In my opinion this contention is not correct. In the present case the Rule making authority has not effaced itself and there is in fact no delegation of any essential legislative function. The rule making authority by framing Rule 45 which is to the effect that the electric installation work shall be done only by an electric contractor licensed by the State Government exercised the real legislative function and laid down a clear policy. All that was left to the State Government to do by notification was to provide for the qualifications of the electric contractors and the manner in which the contractors' licence shall be issued and cancelled with a view to implement the provisions of Rule 45.

In Delhi Law's case reported in AIR 1951 SC 332 their Lordships of the Supreme Court have laid down the extent to which it is permissible to a legislative or a Rule making authority to leave to the executive to frame provisions in order to implement the Act passed by the Legislature or the Rules framed by the Rule making authority. In my opinion in the present case the Government has not gone beyond what was held permissible by their Lordships of the Supreme Court in the case mentioned above. It is well known that considering the necessities of modern life the Legislature or the Rule making authority cannot contemplate all the future contingencies and it has been held permissible to allow provisions being made in order to implement an Act of the Legislature or a Rule framed by a Rule making authority. In my opinion, therefore, there is no substance in the third contention of the learned Counsel for the petitioner.

13. However the petition has got to be allowed because I have accepted the second submission of the learned counsel for the petitioner as correct by holding that the provisions of Clause 21 are hit by Articles 14 and 19 of the Constitution of India.

14. The petition is accordingly allowed, and the order cancelling the petitioner's licence is quashed. In the circumstances of the present case, however, I direct the parties to bear their own costs.


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