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Electric Supply Company of Burdwan Ltd. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectElectricity
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 20 of 1956
Judge
Reported inAIR1958Cal85
ActsElectricity Act, 1910 - Sections 4, 4(1), 4(2), 5 and 27; ;Constitution of India - Article 226; ;Evidence Act, 1872 - Sections 36, 83 and 101 to 104; ;Code of Civil Procedure (CPC) - Sections 100 to 101
AppellantElectric Supply Company of Burdwan Ltd.
RespondentState of West Bengal and ors.
DispositionAppeal dismissed
Excerpt:
- chakravartti, c.j. 1. this is another of cases under article 226 of the constitution where the parties have not troubled to make a full and accurate disclosure of the facts and have left the court to give its decision on considerations of a negative rather than positive character. 2. the history of the proceeding out of which the present appeal has arisen is as follows. the appellant company used to hold a licence for the supply of electrical energy in a certain urban or semi-urban area in burdwan. the licence was originally granted to a firm to which the company apparently succeeded. in 1951, which is said to have been shortly after the present managing agents had taken over charge of the concern, there was widespread complaint about the inadequacy and efficiency of the supply of energy.....
Judgment:

Chakravartti, C.J.

1. This is another of cases under Article 226 of the Constitution where the parties have not troubled to make a full and accurate disclosure of the facts and have left the Court to give its decision on considerations of a negative rather than positive character.

2. The history of the proceeding out of which the present appeal has arisen is as follows. The appellant company used to hold a licence for the supply of electrical energy in a certain urban or semi-urban area in Burdwan. The licence was originally granted to a firm to which the company apparently succeeded. In 1951, which is said to have been shortly after the present Managing Agents had taken over charge of the concern, there was widespread complaint about the inadequacy and efficiency of the supply of energy made by the company. The Burdwan Municipality, the railway authorities, the District officials, newspapers and members of the public all appear to have joined in making complaints. It was said that the pressure was never maintained at the declared level with the result that the supply of energy was exceedingly feeble and that the light provided was not sufficient to illumine the streets even dimly and was certainly not sufficient to enable anyone to read or do any other work. Another result of the drop in the voltage, it was alleged, was that the pump-house in the waterworks could not function effectively with the result that the supply of water was very seriously affected. Frequent breakdowns or interruptions in the supply were also alleged and it was said further that it had become impossible to obtain any new connections. These complaints, voiced in public meeting and newspapers, at last reached Government. They appear to have been satisfied that the complaints were true and that the company had been guilty of defaults for which their licence might well be revoked under Section 4(1) of the Indian Electricity Act, but instead of taking that extreme step, Government decided to proceed under Section 4(2) and to permit the licence to remain in force for some further time, subject to certain terms and conditions. A notification to that effect was issued on the 30th of September, 1954. It first enumerated the defaults committed by the company then referred to the liability which the company had incurred for the revocation of its licence and proceeded to say that the Governor, instead of revoking the licence, would permit it to remain in force, subject to certain terms and conditions which he was imposing. Three terms were then set out and the notification concluded by saying that they would have to be complied with within a period of three months from the date of issue of the notification.

3. At the end of three months, Government reviewed the working of the undertaking and came to be of opinion that the terms and conditions laid down by the notification of the 30th of September, 1954, had not been carried out and observed. Accordingly, on the 3rd of February, 1955, they issued a notice to the company, asking it to show cause why its licence should not be revoked under Sub-section (1) of Section 4 of the Act. The company showed cause, but Government did not find the cause shown satisfactory. Thereupon, on the nth of March, 1955, they issued three orders or notices, one of them being a notification, another a notice and the third a letter. It is the orders contained in these communications which are being challenged in the present proceedings,

4. Of the three communications issued to the company on the 11th of March, the first was a notification. It recited once again the defaults committed by the company, referred to the intermediate order by which the licence had been permitted to remain in force, subject to certain terms and conditions, proceeded to state that the terms and conditions had not been complied with and, lastly, that for such non-compliance no satisfactory cause had been-shown. The notification then concluded, by saying that the Governor, being of opinion that it was necessary in public interest that the company's licence should be revoked, was revoking it under cls. (a) and (b) of Sub-section (1) of Section 4 of the Act with effect from the 15th of March, 1955.

5. The second communication issued to the company on the same day was a notice. Like the notification, it recounted previous history, then stated that the licence had been revoked and proceeded to say that under Clause (a) of Section 5 of the Act, the Governor was serving notice of the revocation on the licensee and that he had fixed the 15th March, 1955 to be the date on which the revocation would take effect.

6. The third communication issued on the same day was a letter. It was accompanied by copies of the notification and the notice issued on the same day to which I have already referred and informed the company that the State Government had elected to exercise their option of purchase in respect of the undertaking under Section 5(d) of the Act. The letter proceeded to ask the company to furnish the writer within a week from its date a complete list of the assets of the undertaking, together with their valuation, as assessed by the company. It was stated further that, inpublic interest, the company should make overthe charge of all the assets of the undertaking to the Chief Electric Engineer, West Bengal or a representative of his duly authorised in writing on the 10th of March, 1955, pending settlement of the prices, either by negotiation or by arbitration and final payment thereof.

7. All these three communications were signed by one N. Das, who described himself as the Secretary to the Government of West Bengal, Department of Commerce and Industries, Mines and Power Branch. But while the first two of the communications were expressed to be by order of the Governor, the third was not so expressed. The notices or communications were served on one of the Directors of the company at Asansol on the 14th of March, 1955, at about 2-30 p.m.

8. On the 15th of March, 1955, the company made an application to this Court under Article 226 of the Constitution and prayed for the issue of a writ of mandamus upon the respondents, directing them to forbear from giving effect to the three notices, a writ of prohibition, prohibiting them from giving any effect to them and a writ of certiorari for quashing the orders contained in the notices. It is said that a Rule was issued at about 3-55 p. m. An interim injunction restraining the respondents, their servants and agents from giving effect to or in any way acting under the three notices was also granted.

9. It appears, however, that before the application was moved in this Court and the injunction granted, the respondents had already taken possession of the undertaking earlier in the day, The injunction, therefore, proved to be of no effect.

10. The contention of the appellant before the trial Court was that the order of revocation made on the 11th of March, 1955, was bad and that even if that order was valid, the order of compulsory purchase made on the same day was bad. The same two points were urged before us, but it appears that before the learned trial Judge, they had been put in an altogether different form. In the course of the argument before us, a third point as to whether, even assuming that the order of revocation and the order of compulsory pup chase were both valid, the taking of possession before the purchase had been effected was valid, came to be considered. Mr. Kar, who appears for the appellant-company, wished to raise a fourth point to the effect that the order by which the State Government were said to have elected to exercise their option of purchase, was not a valid or effective order, since it had not been expressed to be by order of the Governor. These points may now be examined.

11. I may say at once that the fourth and the new point sought to be raised by Mr. Kar before us for the first time cannot be allowed to be taken. If he had raised the question in the trial Court, the respondents might have produced an order expressed 311 the proper form. Indeed, the letter of the 11th of March, 1955, does not purport to be the original order, but only purports to communicate its substance to the company. It is certainly odd that while copies of the order of revocation and the order fixing the date on which the revocation would take effect were enclosed with the letter, no copy of the order by which the State Government had elected to exercise the option of purchase should have been enclosed, if there was such an order in fact. But in the absence of the point being raised in the trial Court and an opportunity provided tothe respondents to meet it, we cannot obviously make any adverse presumption. The new point sought to be raised by Mr. Kar must, therefore, be left out of account altogether.

12. As regards the order of revocation, it appears to have been argued before the learned trial Judge that since it purported to have been passed under both Clauses (a) and (b) of Section 4(1), but no breach of the terms and conditions contemplated by Clause (b) had even been alleged, the opinion of Government which had led to the passing of that order was obviously based upon a wrong apprehension of the law and facts and, therefore, it could not be sustained. That argument was not repeated before us. Nor was it contended, as appears to have been done before the learned trial Judge, that in desisting from revoking the licence on the 30th of September, 1954, Government had in fact waived their right to do so. What was argued before us was something altogether different.

13. It was contended that the order of the 30th of September, 1954, required the licensee to comply with certain terms and conditions imposed by that order which were not among the terms and conditions of the licence, but certain further terms and conditions. The notice issued on the 3rd of February, 1955, alleged that the company had failed to comply with those terms and conditions within the period specified in the notification and that was the reason given for Government directing the company to show cause why the licence should not be revoked. The actual order of revocation, passed on the 11th of March, 1955. proceeded on the same basis. The terms and conditions imposed by the notification of the 30th of September, 1954, were again referred to and it was again said that the company had failed to comply with them. According to Mr. Kar, Government were not relying on the initial defaults recited successively in the notification of the 30th of September, 1954, the notice of the 3rd February. 1955 and the notification of the 11th of March, 1955 itself, but they were relying on the alleged breach of the further terms and conditions imposed under Section 4(2) of the Act. At the same time, Government were saying by the order of revocation that they were acting in exercise of their powers conferred by, not merely Clause (a), but also Clause (b) of Sub-section (1) of Section 4 of the Act. Clause (b) of Section 4(1), Mr. Kar pointed out, was concerned with breaches of any of the terms and conditions of the licence, the breach of which was expressly declared by such licence to render it liable to revocation. Since none of the further terms and conditions imposed on the 30th September, 1954, were terms and conditions included in the licence and since, necessarily, it had not been expressly stated in the licence that the breach of those terms and conditions would render it liable to revocation, the basis upon which the order of revocation proceeded was altogether bad, if not non-existent.

14. In my view, this contention of Mr. Kar cannot possibly be accepted. He raised another question on the construction of Section 4(2) of the Act to which I shall presently refer, but the point which I have mentioned was taken on the basis of the language of the notices. It is true that the notice of the 3rd of February, 1955, did refer to the non-compliance with the terms and conditions imposed on the 30th of September, 1954, but that was not the only default to which it referred. It referred also to several specific kinds of default previously committed by the company and which certainly could be said to constitute.as they were indeed said to do, wilful and unreasonably prolonged default in doing things required of the licensee by the Act. When the notice ended by saying 'Now, therefore, the Governor is pleased to direct etc., they 'therefore' referred not merely to the default committed in regard to the further terms and conditions, but also to the wilful and prolonged default, alleged to have been previously committed in regard to the several matters specifically mentioned in the notice. We are, however, concerned not so much with the notice of the 3rd of February, 1955, as with the actual revocation order passed on the 11th of March, 1955. The structure of that order is different. It recites the previous defaults, recites also the forbearance exercised by Government in permitting the licence to remain in force, provided certain terms and conditions were complied with, and then recites that the company, had been asked to show cause why the licence should not be revoked under Sub-section (1) of Section 4. Having recited those several antecedent circumstances, the order proceeds to say that, upon a consideration of the facts of the case as also the explaination submitted by the company, the Governor had come to be of opinion that public interest required the licence to be revoked. This order does not even purport to say, whether directly or indirectly, that Government were proceeding to revoke the licence solely because of non-compliance with the further terms and conditions.

15. Indeed, the true position appears to be-that the company incurred the liability for a revocation of its licence as soon as Government came to be of opinion that it had been guilty of wilful and prolonged default in performing duties-required by the Act to be performed. What happened thereafter was that Government stayed their hands for a time and granted the company a temporary respite, so that it might have a chance of qualifying for the retention of the licence by observing certain further terms and conditions which Government then imposed. If those terms and conditions were not complied with, as in Government's view they were not, they were free to proceed on the basis of the original defaults, because the liability for the revocation of the licence arising out of those defaults had always remained unaffected. When ultimately Government proceeded to revoke the licences they did so, not because the further terms and conditions had not been complied with or, to put it in another way, not because a liability for revocation of the licence had arisen out of the non-compliance with those terms and conditions, but because compliance with those terms and conditions, by which Government might be persuaded to desist from revoking the licence on the ground of the original defaults, had not been forthcoming. In my view, the revocation order was not passed on the ground that the further terms and conditions had not been complied within the sense that such non-compliance had created a liability for revocation, but on the ground that things, by doing which the company might avert revocation and to do which a chance had been given to them, had not been done. The original defaults had therefore not been atoned for and the revocation order was really based upon the original defaults. It is true that those defaults do not come under Clause (b) of Section 4(1) and, therefore, the reference to that clause in the revocation order was a mistake, but Clause (a) was also referred to and since Government could lawfully proceed under that clause in the events which had happened and, in fact, so proceededthe mere reference to a further clause which was inapplicable could not invalidate the order.

16. The order of revocation was also challenged on a second ground. It was said that under Section 4(2) of the Act, Government's power to revoke a licence and their power to permit the licence to remain in force were mutually exclusive and, therefore, once Government decided not to revoke a licence but to permit it to remain in force, they could no longer fail back on the original defaults for which the licensee had incurred a liability for revocation and revoke the licence for those defaults. In terms of the facts of the present case, it was contended that after having issued the notice of the 3rd of February, 1955, Government could not, as a matter of law, go back to the original defaults and make them a ground for a subsequent order of revocation.

17. In my view, this construction of Section 4(2) is not tenable. It also appears to me that, on the facts of the present case, it is not necessary for us to decide what the effect of the section will be when Government permit a licence to remain in force, subject only to some further terms and conditions which do not carry with them any liability for defaults in their observance, whether by implication or otherwise. The fact's of the present case are simple. The sub-section says that Government may 'instead of revoking the licence, permit it to remain in force, subject to such further terms and conditions as it thinks fit to impose.' The sub-section undoubtedly proceeds to say that 'any further terms or conditions, so imposed, shall be binding upon, and be observed by the licencee and shall be of like force and effect as if they were contained in the licence,' but, without more, the breach of such further terms and conditions may not bring a case under Clause (b) of Sub-section (1). I do not, however, see why even such a breach will not bring a case under Clause (a) Sub-section (1), if it is wilful and unreasonably prolonged, because the terms and conditions which must be deemed to be incorporated in the licence will be terms of which the Act requires performance. I need not, however, pursue this matter further, because, in my view, the answer to the point arising out of the facts of the present case is plain. The terms and conditions which Government may impose under Section 4(2) may be any terms and conditions. The terms and conditions imposed in the present case were three in number and it was said that they must be complied with within a period of three months. Government were thus not abandoning the right which had arisen to them to revoke the licence and were not permitting the licence to remain in force indefinitely, by simply adding to the terms and conditions of the licence some further terms, but they were merely holding the revocation in abeyance for the time being and giving the company a chance to avert it altogether. The requirement that the new terms and conditions must be complied with within three months, obviously meant that Government were not making a final choice in favour of permitting the licence to remain in force for an indefinite period and that of the two powers which had arisen to them, they were not deciding in favour of one only. In my view, since Section 4(2) enables Government to impose any terms and conditions they please, it follows that in a case where they impose certain terms and say that they must be complied with within a certain period, there is no abandonment of the power of revocation and no election in favour of the other power, but there is merely forbearance forthe time being from exercising the power of revocation. The terms offered mean that if they are not complied with within the time, allowed, the power to revoke the license which has arisen will be exercised. In such a case, the question of the two powers being mutually exclusive does not really arise. But if it does arise in a case, I would hold as at present advised, that even assuming which I do not decide -- that once Government have permitted a licence to remain in force, they cannot fall back upon the initial defaults, the breach of or non-compliance with the further terms and conditions will once again bring the case under Clause (a) of Section 4(1) and once again the power of revocation will arise if the default is unreasonably prolonged. I do not, therefore, think that even the second attack of Mr. Kar upon the validity of the revocation order can succeed.

18. The next attack was upon the order for compulsory purchase. It was said that the area of supply in the present case was an area for which a single local authority was constituted and therefore, by reason of the provisions of Section 5(a) of the Act, the notice of revocation should have been served not merely on the licensee but also on the local authority in order that the local authority might, if it chose, exercise its option of purchasing the undertaking under Clause (b) of the section. It was pointed out that Government had purported to make the order for purchase by themselves under Clause (d) of Section 5, but the power under that clause arose only if no purchase had been effected under Clause (b) or Clause (c) of the section. Since, according to the appellant, the area of supply was Included within the territorial limits of a single authority, a notice of the revocation should have been served on that authority and it was only if that authority did not choose to purchase the undertaking under Clause (b) that Government's right under Clause (d) could arise.

19. For the factual basis of his contention that the area of supply was included in an area for which a single local authority had been constituted, Mr. Kar referred to the notification of the 30th of September, 1954 and the notice of the 3rd of February, 1955. Clause (i) of the first paragraph of both the notification and the notice referred to the default committed by the company in supplying energy for premises and public lamps within the area of supply and then proceeding to allege that the company had failed in complying with requisitions made under Clauses VI and VIII of the Schedule to the Act, stated that such requisitions had been inter alia 'by the local authority for the said area or supply, namely, the Commissioners of the Burdwan Municipality.' That language, Mr. Kar contended, could only mean that the Burdwan Municipality was the sole authority for the said area of supply. In the order of revocation, as also the notice by which the date on which the revocation would come into effect was fixed, Clause (1) of the first paragraph of the earlier notification as well as of the notice was quoted verbatim, except that the local authority by which requisitions had been made was then described as 'the local authority for part of the said area of supply, namely, the Commissioners of the Burdwan Municipality.' If the area of supply is not included in an area for which a single local authority is constituted, the notice of revocation need not be served on any of the local authorities and none or neither of them has any right under the Act to purchase the undertaking Where such are the facts, Clause (d) of Section 5 would apply andit is only the State Government which have theoption of purchasing the undertaking. Mr. Kar contended that in making the order for compulsory purchase, Government had proceeded underClause (d) of Section 5 and done so on the footing that the whole of the area of supply was not included in an area for which a single local authority had been constituted. That course, according to Mr. Kar, was not open to Government, since in the notification of the 30th of September, 1954and the notice of the 3rd of February, 1855, they themselves had admitted that the whole of the company's area of supply was within the jurisdiction of a single local authority, namely, the Burdwan Municipality.

20. Before the learned trial Judge Mr. Kar appears to have contended that in view of the two statements of Government, which he called admissions, they were altogether estopped from proceeding on any other view of the facts and, therefore no question of any enquiry as to what the real facts were arose. The learned trial Judge refused to entertain that argument and observed, in my view rightly, that whether Section 5(a) applied or not, was a question of fact. What the learned Judge really meant obviously was that whether or not that portion of Section 5(a) which required a notice to be given to the local authority would apply or hot would depend on the actual facts of a case. In his view, a map produced by the respondents showed conclusively that the area of supply covered by the licence was not the same as the area of the Burdwan Municipality, but included areas under other local authorities.

21. It appears to me that no question of estoppel arises. The most that Mr. Kar could say, and in my view he was entitled to say it, was that he did not admit that the whole of the area of supply was not within the Jurisdiction of the Burdwan Municipality, as stated in the order of revocation, and that since he was able to quote two statements to the contrary made by Government themselves in the earlier notices, the burden lay upon them to establish that the earlier statements were incorrect. That the earlier statements could be said to have shifted the burden was conceded before us by the learned Advocate General. On the view taken by the learned trial Judge of the map, the burden had been discharged. With respect, I find myself unable to agree with that finding.

22. Before I proceed further, I may refer to the question of the true construction of the notification of the 30th of September, 1954 and the 3rd of February, 1955. I have already quoted the relevant part of their language. Sinha, J., has held that, as a matter of language, the statements contained in the notification and the noticedo not mean that the Burdwan Municipality was the sole local authority for the area of supply, but only mean that the only local authority which had made requisitions to the company was the Burdwan Municipality. I am afraid I cannot agree with the learned Judge. If someone refers to an area of supply and says subsequently that something was done 'by the local authority for the said area of supply', I cannot ascribe any meaning to that language except that, according to the person who was making the statement, the only local authority for the area of supply concerned was the local authority he was mentioning. The position is that Government had said twice before that the sole local authority for the area of supply was the Burdwan Municipality. If they now want to say that only a part of the area of supply is within the limits of the Municipality, the burden restson them to prove the earlier statements to have been incorrect and the later statement to have been correct.

23. Besides relying on the statements contained in the earlier notification and the notice, the company stated in paragraph 24 of the petition that the whole of the area of supply was included in the area for which a single local authority, namely, the Commissioners of the Burdwan Municipality, had been constituted. That statement was traversed by Nabagopal Das in paragraph 23 of his affidavit-in-opposition. According to him, the company's area of the supply included areas under three local authorities, namely, the Municipality of Burdwan, the District Board of Burdwan and the Union Board of Rayan. He did not specify what part of the area of supply was included within the Jurisdiction of the District Board of Burdwan, but with regard to the part said to be under the Union Board of Rayan, he made a statement in paragraph 24 of his affidavit which shows that he or his advisers were under a complete misapprehension as to what 'area of supply' meant. The statement in paragraph 24 is that the company had been required by two separate orders to supply energy to two premises which were situated beyond the limits of the area of the Burdwan Municipality and which fell within the area under Rayan Union Board. Since in paragraph 23 he had said that a part of the area of supply was under the Union Board of Rayan, he was obviously saying that any area outside the area of supply covered by the licence, to which the licensee might be required by the special orders to supply energy, would also be the licensee's area of supply. In my view, this was a complete misapprehension.

24. 'Area of supply' is defined in Section 2(b) of the Act and according to that definition means 'the area within which alone a licensee is for the time being authorised by his licence to supply energy.' It is thus clear that so far as the definition goes, even if a licensee may actually be supplying energy to a particular area, such area will not be included in the area of supply, if he is not authorised by his licence to supply energy there. It is only the area covered by the licence which is the area of supply in the contemplation of the Act and how strict the Act in that regard is, is shown by its addition of the word 'alone' in the definition which does not occur in the corresponding definitions in the English Electricity Acts or Orders. The separate orders to which Mr. Das refers in his affidavits could only be orders made under Section 27 of the Act. By the main paragraph of that section it is provided that notwithstanding anything contained in the Act, the State Government may ' * * * authorise any licensee to supply energy to any person outside the area of supply'. In the first place, the section seems to contemplate the supply of energy, not to any area or to any premises, but to particular persons. But apart from that feature of the section, which is not relevant for our present purpose, it is important to notice that it speaks of the supply so authorised being supply 'outside the area of supply'. The learned Advocate General, however, contended that the fourth proviso to the section made even the place, to which energy was supplied under the section, a part of the area of supply. I am unable to accept that view of the proviso which reads thus:

'Provided, fourthly, that, save as aforesaid, the provisions of this Act shall apply in the case of any supply authorised under this section as ifthe said supply were made within the area of supply.'

The expression 'save as aforesaid' refers to the restrictions imposed by the previous provisos on certain provisions of the Act in their application to areas specially supplied with energy under the terms of the section. But the crucial words for our present purpose are 'shall apply in the case of any supply * * * as if said supply were made within the case of supply.' The effect of those words obviously is to make those provisions of the Act, which relate to supply of energy, applicable to supply made under the section to areas outside the area of supply and not to enlarge the area of supply itself. If the Legislature intended to lay down that the areas supplied under special orders made under Section 27 would also be included within the area of supply as contemplated by the Act, it was the easiest thing for it to say that such areas would be deemed to be included within the area of supply. Instead, what the Legislature has done is only to apply certain provisions of the Act to the supply of energy and to nothing else and then to provide that the conditions or incidents of the supply to such areas shall be on the footing as if the supply was being made within the area of supply itself. I do not think that any other meaning of the proviso is possible.

25. It is useful to refer in this connection to what is said on the subject in the standard work on The Law Relating to Electrical Energy in India and Burma' (5th Ed. p. 268) by Meares, who was for a long time the Electrical Adviser to the Government of India. He points out that prior to the enactment of Section 27 of the Act, the only way in which energy could be supplied outside the area covered by the licence was by amending the licence itself under Section 4(3)(b). Since this course was found inconvenient to be followed in each case, Section 27 was added to the statute, mostly to overcome difficulties which had arisen where a consumer was just outside or partly within and partly without the area of supply. As regards the true effect of the fourth proviso, the author, who was able to draw upon his large fund of theoretical and practical knowledge, observed as follows:

'The object of this proviso may with advantage be briefly explained. The third proviso virtually applies to the provisions of Sections 12 to 17; and having obtained the written consent of the local authority or person by whom the street, etc., is repairable, it remains for the licensee to comply with the requirements of those sections in detail, in so far as he has not already done this when applying for that consent. The remainder of Parts IX and IV applies exactly as in the case of supply within the licensed area.'

Part II to which the author refers is concerned with supply of energy and Part IV with matters of a general character, covering protective clauses, administration and rules, criminal offences and procedure and supplementary matters.

26. In my view, the area within the Union Board of Rayan cannot possibly be said to be a part of the company's area of supply, because the licence does not cover it and because the fourth proviso to Section 27, on which reliance was placed, does not make such an area a part of the area of supply.

27. There remains the area said to be under the District Board of Burdwan. Nabagopal Das does not say where that area is situated, but the deficiency is sought to be supplied by two other affidavits, one of Sukumar Barat. the Engineer of the Burdwan Municipality, and another of Manoranjan Datta, Superintending Engineer, Electricity Development Directorate, Government of West Bengal. Barat sets out the boundaries of the company's area of supply, as given in the licence and also the boundaries of the area of the Burdwan Municipality, as contained in Notification (Burdwan) No. 608-M of the 5th February, 1937. Having done so, he says in paragraph 4 that a portion of Mouza Becharhat, marked 'A' in Cadastral Survey sheet No. 1, is within the area of Burdwan Municipality. Next, he says in paragraph 5 that 'certain areas' of that Mouza other than the plots marked 'A' in the Cadastral Survey Sheet are also included within the area of supply. Then in paragraph 7 he refers to a map, said to have been prepared under the supervision of one Monoranjan Datta and annexed to his affidavit and adds that the 'portion of Becharhat Mouza, falling outside the limits of Burdwan Municipality but within the limits of the area of supply of the petitioner company' is 'indicated in the said map by green hatch lines'. 'Monoranjan Datta, in paragraph 11 of his affidavit, states that the map was prepared under his supervision in the Drawing Office of the Electricity Development Directorate and adds that the limits of the Municipality as well as the limits of the area of supply have been correctly shown in the map. According to both, the Seed Multiplication Farm, which is one of the places served by the licensee under special orders, as spoken to by Nabagopal Das, is situated elsewhere. We have thus the statement of Barat that certain areas included within the area, of supply are situated, not within the limits of the Burdwan Municipality but within the jurisdiction of the Burdwan District Board. That mere statement, in my view, proves nothing, particularly as the areas said to be under the District Board of Burdwan are described merely as 'certain areas' and no specification of them of any kind is given. The actual location of the area, alleged to be within the area of supply, but situated not within the limits of the Burdwan Municipality hut within the limits of the District Board, is to be found only in the map indicated therein by green hatched lines. It was on this graphical evidence, if I may so call it, that the learned trial Judge relied. In paragraphs 40, 41 and 50 of their affidavit-in-reply, the Appellants denied the correctness of the map as also the correctness of the statements of Barat and Datta. (28) In my view, although the map might be admissible in evidence since Monoranjan Datta has identified it and said that it was prepared under his supervision, its evidentiary value is absolutely nil. It is said that the map was prepared in the Drawing Office of the Electricity Development Directorate which is in Calcutta. But nothing is said as to the method by which it was prepared. The map is said to show the limits of the Burdwan Municipality, as laid down in the notification of the 5th of February, 1937, but those limits, as appears from the terms of the notification set out in Barat's affidavit, are indicated only by certain boundary lines, drawn from and to certain points in the locality, described by physical features or said to run either along the boundary line of or across certain Mouzas. The map is also said to show the limits of the area of supply as laid down in the licence, but those limits, again, are indicated in a similar manner. How in such circumstances a map could be prepared in a Drawing Office in Calcutta merely from the boundary lines indicated in such a manner and how any such map could be accurate or evidence of what it depicts, it is wholly impossibleto see. Monoranjan Datta admits that when taking possession of the assets of the undertaking on the 15th of March, 1955, he had taken possession of a copy of a map in blue print, showing the area of supply. That map was never produced. Nor was it said that the maker of the map had in his possession any map of the Burdwan Municipality published under the authority of Government or the Cadastral Survey Map. If the map-maker came and said that he had superimposed an official map of the Burdwan Municipality upon the map attached to the licence or even that he had obtained guidance in drawing the boundaries from the Cadastral Survey Map, some value to the map he had produced might be attached. The maker of the map never came. It has been said that to admit a map without calling the maker thereof amounts to admitting hearsay. We are not concerned in the present case with the presumption provided for either in Section 36 or Section 83 of the Indian Evidence Act, for the map relied upon by the respondents is not a map published under the authority of Government. If one was to go by certain boundaries alone and boundaries' indicated by physical features of the locality, I am unable to understand how a map could be prepared without relying the boundaries on the spot. We asked the learned advocate General repeatedly to explain to us in what manner this map had been prepared, but he was unable to give us any information, either from his own knowledge as to the method of preparation of maps or from instructions. Monoranjan Datta undoubtedly said that the map had been prepared under his supervision and he also swore that the limits of both the Municipality and the area of supply had been correctly shown in the map. How he, an Electrical Engineer, employed in Calcutta was competent to make those statements, I am unable to see; I do not also see that a mere statement that the limits of the two areas had been correctly shown carries any value in the absence of particulars as to the method by which the limits came to be depicted in the map and the source from which the map-maker's impression of the location of the boundaries was derived. In my view, even if the map be admissible in evidence, which is not too clear, seeing that the map-maker himself was never called, it is of no value whatsoever as to the accuracy of its contents and does not help the respondents in the least in discharging the burden lying upon them. It is said that the limits of the Municipality of Burdwan are shown in the map in chain dotted yellow lines and the limits of the areas of supply are shown in firm red lines. It is nobody's case that any part of the area of the Burdwan Municipality lies outside the area of supply, although, according to the respondents, some part of the area of supply lies outside the limits of the Burdwan Municipality. Yet the map, as prepared, shows some strips of land which are outside the limits of the area of supply, but within the limits of the Municipal area. The inaccuracy of the map even as to a major matter thus appears to be patent, but I need not base my rejection of the map on such inaccuracies. A map prepared in an Office in Calcutta from, as is stated, nothing more than boundary lines of certain areas indicated in terms of local features of the land and sometimes features of a very indefinite character can be, in my view, nothing more than a conglomeration of scribblings in lines and letters, dignified by the designation of a map. It must be rejected altogether.

29. The result of the evidence in the case, therefore, is that the respondents have not discharged the onus thrown upon them by their own statements in the first two notices to show that the contrary statements made in the later notices are correct, while the prior statements were not. On the materials in the case, such as they are, we must proceed on the basis that the area of supply has not been shown to be not included in an area for which a single local authority has been constituted, as stated by Government in the first two notices. Section 5(a) of the Act, in so far as it requires a notice of the revocation to be served on the local authority, therefore, applies and in so far as no such notice was served in the present case on the Burdwan Municipality, the proceedings must be held to have been plainly irregular.

30. I must, however, take care to add that our decision on the question as to whether the area of supply is included within the area of a single local authority must not be taken as a decision in rem, nor even as a final decision as between the parties for all purposes and all future cases. All that we are in a position to say in the present case is that in view of the failure of Government to discharge the onus lying upon them, they have not been able to show the proceedings taken to have been regular. It is not unimportant to note that even the company did not produce a copy of the map attached to the licence. Mr. Kar contended that the original map attached to the licence had been seized by the respondents when taking possession of the assets of the undertaking, but that circumstance, to my mind, cannot fully explain their failure or omission to produce a copy of the map. It appears from Rule 21 of the Rules framed under the Act that along with his application for licence, the applicant must file three copies of a map of the proposed area of supply and that after a licence has been granted, he must within thirty days deposit printed copies of the map for public inspection at his own office and at that of his agents and at the office of every local authority within the area of supply. It is, therefore, not very credible that the company had not copies of the map in its possession which it would produce if it wanted to. We cannot, however, and do not draw any adverse presumption against the company, because it was entitled to rely on the two statements made by Government 'and til! the onus thrown by them on the respondents was discharged, it was probably under no duty to lead further evidence, That, however, does not affect the position that our finding is going necessarily to be based upon what I called at the beginning of this judgment considerations of a negative character.

31. If, on the materials on the record, we must procesd on the footing that the area of supply was included only within the limits of the Burdwan Municipality, Section 5(a) required the notice of revocation to be served on the Municipality so that it might, under Clause (b) of the section, exercise its option of purchasing the undertaking, if It wanted to do so and if it was permitted by the State Government. The learned Advocate General did not dispute that if this was a case of the area of supply lying within the area of a single local authority. Government could not lawfully proceed to purchase the undertaking under Clause (d) of the section, because so long as an opportunity was not afforded to the Municipality to purchase the undertaking and so long as a failure to effect a purchase did not occur, the rights of Government provided for in Clause (d) could notarise. The order for the compulsory purchase of the undertaking by Government communicated to the company by the third notice of the 11th of March, 1955, must, therefore, be held to have been illegal and void.

32. Mr. Kar did not take it as one of his points that even if the order of revocation and the order of a compulsory purchase were both valid, the taking of possession of the assets of the licensee before the compulsory purchase had been effected was, nevertheless, invalid. In the facts of the case, however, I find it impossible not to hold that, in any event, the taking of possession of the assets of the licensee on the 15th of March, 1955, was not warranted by law. It appears from the affidavit of Monoranjan Datta that although the three notices were dated the 11th of March, 1955, they were actually not served till the 14th. According to paragraph 28 of the petition, they were served at about 2-30 p.m. The company was directed to make over possession on the 15th and on the 15th possession was actually taken. In the second paragraph of the letter of the 11th of March, 1955, the company was asked to furnish a complete list of assets together with their valuation as assessed by the company itself within a week from that date, that is to say, on or before the 18th of March. On the day possession was taken, even the date for furnishing a list of the assets had not arrived. The question is whether the possession taken in such circumstances was rightful and lawfully taken.

33. Section 5(a) of the Act provides that the State Government, while serving a notice of revocation, shall in the notice fix the date on which the revocation shall take effect. It is then declared that on and with effect from that date, all the powers and liabilities of the licensee under the Act shall absolutely cease, and determine. Clause(b) of the section empowers the local authority, where there is a single local authority for the area of supply to require the licensee to sell the undertaking to it, if the State Government agree to the local authority making the purchase. Clause(c) of the section provides that if no purchase has been effected by the local authority under Clause (b), but some other person is willing to purchase the undertaking, the State Government may, with or without the consent of the licensee, require him to sell the undertaking to such other person, provided he is willing to pay the same price. If the local authority, where there is a single local authority, does not purchase, nor does any third party purchase the undertaking or where the area of supply is not included within the limits of a single local authority the State Government may purchase the undertaking. Since it is provided by Clause (a) of Section 5 that on and with effect from the date when the licence is revoked, the powers and liabilities of the licensee shall cease, It is clear that unless there is someone already at hand to take over the undertaking, the supply of energy must also cease on the date fixed for the revocation. It is presumed that, ordinarily, the State Government will try to avoid such a situation by fixing the date of revocation sufficiently ahead, so that the purchase of the undertaking may be effected in the meantime and the purchaser may be available to take over the undertaking when the revocation takes effect. But the Act seems to have visualised a contingency when purchase may hot be completed by the date fixed for the revocation order taking effect and has provided for that situation in Clause (g) of Section 5. That clause says that if the licensee' has been required to sell the Undertaking and if the sale has not been completed by the date fixed in the notice issued under Clause (a), the purchaser may, with the previous,sanction of the State Government, work theundertaking pending the completion of the sale.It will thus appear that provided there is a purchaser who is proceeding with the completion ofthe sale, no practical difficulty will arise if thesale is not completed by the date when the revocation is due to take effect. But Clause (g) isobviously limited to purchasers other than theState Government. It speaks of the purchaserworking the undertaking with the previous sanction of the State Government and, therefore, itcannot apply to a case where the State Government themselves are the purchasers, because tosay that even In such a case the State Government will previously sanction their own workingof the undertaking would be absurd and judicious. If then Clause (g) does not apply to a case wherethe State Government have elected to make apurchase under Clause (d) of Section 5, it remains to beseen whether there is any other provision underwhich Government may In such a case take possession of the assets of the undertaking before thesale has been effected.

34. The learned Advocate-General contended that Clause (e) of Section 5 was the provision under which Government, as purchasers, might proceed to take possession before the sale had been effected. The language of the clause, so far as material, is as follows :

'(e) where a purchase has been effected under any of the preceding clauses,-- (I) the undertaking shall vest in the purchasers free from any debts, mortgages or similar obligations of the licensee or attaching to the undertaking.'

The learned Advocate-General contended that the words 'where a purchase has been effected' should be construed as meaning 'where the election to purchase has been exercised.' The natural meaning of the words does not warrant such construction and it seems to me further that the construction cannot be fitted in with other clauses of the section. It will be noticed that Clause (e) speaks of a purchase 'under any of the preceding clauses,' that is to say, under either Clause (b) or Clause (c) or Clause (d). In the case of Clauses (b) and (c), particularly in the case of Clause (c), there is hardly any question of an election to purchase, but assuming that willingness to purchase is election, it is not easy to see why, if the learned Advocate General's construction of Clause (e) be correct, it was at all necessary to enact Clause (g). If under Clause (e), the undertaking vests in the purchaser as soon as he has made his election to purchase, he can proceed to take possession of and work the undertaking on the basis of such vesting and ought not to require a special provision authorising him to do so. pending the completion of the sale. It appears to me that precisely because the undertaking does not vest in the purchaser before the purchase has been effected, that is to say, before a sale to the purchaser has taken place, it was necessary to give him special authority to take over the undertaking for the purpose of working it. if by some chance or mischance purchase was not completed before the date of revocation. It is true that the word used in Clause (g) is 'completed', whereas the word used in Clause (e) is 'effected'. But if 'completed' means something different from 'effected', it represents a later rather than an earlier stage in the process of the sale. If a sale can be effected even if it is not completed, the mere effectuation of the sale would, under Clause (e), give the purchaser the right to take over and workthe undertaking and, therefore, it was not necessary to provide him with special authority for the period between the effectuation and the completion of the sale. The completion of the sale in Clause (g) therefore does not seem to me to mean anything different from effectuation of the sale in Clause (e). Under the general law and according to the ordinary meaning of words, completion as distinguished from effectuation of the sale may refer to the carrying out of certain formalities, but from the point of view of the two clauses before us, I find it impossible to give it a meaning which will not include, but, on the other hand, exclude effectuation and thereby exclude the vesting of the undertaking under Clause (e). In my view, the words 'where a purchase has been effected under any or the preceding clauses' must be held on the natural meaning of the words used as also in view of the background of the clauses preceding and following it, to mean 'where the purchase contemplated by the previous clauses has actually taken place.'

35. If Clause (g) does not cover the State Government as purchasers and if Clause (e) does not operate to vest the undertaking in the purchasers till a purchase has actually been made, it would appear that so far as Government electing to pur-chase an undertaking is concerned, there is a lacuna in the Act and they have not been given any power to take over the assets of an undertaking or start working it before they have made the purchase. Why this should have been so and why this lacuna should have occurred, it is not for us to say, but it may be it was thought that since it was for Government themselves to fix the date of revocation and for themselves to make the purchase, there would be no difficulty in their case in so fixing the date of revocation as to enable them to complete the sale comfortably before the date of revocation arrived But whatever may or may not have been the reason for the omission, I find it impossible not to hold that, even if the present case be one where the area of supply is not included in the area under a single local authority and even if the order for compulsory purchase was valid, the taking of possession on the 15th of March, 1955. after serving a notice on the licensee on the 14th of the month and asking it thereby to state its valuation by the 18th was not warranted by the Act or valid. Nor does it seem to have been very proper or fair to ask the licensee by a notice, dated the 11th to give a list of the 'assets and state the valuation within a week from that date and then deprive it of almost half of that week by not serving the notice till the 18th.

36. Since on the facts before us, we have held in favour of the appellant on the question of the compulsory purchase, the question of the validity of the possession taken does not really fall to be considered because if the purchase falls to the ground, all else falls along with it. I have discussed the third point only because of the very unsatisfactory nature of the evidence before us with respect to the order for compulsory purchase.

37. The last question now is what order we ought to make. Mr. Kar contended that if we found that the State Government had not acted within the law, but had, on the other hand, acted in violation of it. we ought not to be influenced, by any extraneous consideration to refuse relief and ought to allow the legal consequence of the violation to follow. If, he proceeded, the Courts did not exercise their power of correction even after an illegality had been established, the whole purpose of the Constitution in placing a powerof supervision in the hands of the superior Courts over the justiciable acts of the executive would be defeated. These considerations are not without force, but, in my view, there are in the present case countervailing considerations of greater weight. On our finding, the order of revocation was perfectly valid. The licensee could not, therefore, claim any right to work the undertaking any longer. All the interest in the undertaking it was left with was the interest of being able to make an advantageous sale of the assets. The whole point in the complaint that the notice of revocation was not served on the Burdwan Municipality was that if the Municipality had been notified, it might come forward to purchase the undertaking, and in that event the company might be able to make a more profitable bargain. Even If the Municipality did not come forward, some third person might and in that event also, it is not impossible that the licensee would be able to sell the assets on more advantageous terms. The substance in this complaint appears to me to be exceedingly thin, in the first place, neither the Burdwan Municipality, even if it was served with a copy of the notice of revocation, nor any third person could purchase the undertaking unless Government permitted such purchase. In the second place, we cannot but consider whether the possibility of the Municipality coming forward to purchase the undertaking or any third party doing so was at all a real possibility. The appellant did not state in its petition or in the affidavit-in-reply that the Municipality was willing to purchase its undertaking or that any third person was willing to do so. In view of the common experience in such matters and particularly, in the present case, of the volume of the undertaking and the condition of the appellant's machinery, it is hardly credible that a local authority with the resources which the Burdwan Municipality is likely to possess would ever come forward to take up the burden of working it. Be that as it may, as I have pointed out, there is nothing before us to show, and the appellant did not even allege, that if a chance was given to make a purchase, either the Municipality or a third party would come forward as a purchaser. It has also to be borne in mind that what price a licensee, whose licence has been revoked, is entitled to and can expect is laid down in the Act itself. No one can purchase the assets for less and if there is any dispute as regards the value, the Act itself provides that the dispute should be determined by arbitration. The principles upon which the value must be determined apply equally to all purchasers, whether a local authority or a private individual or the State Government There is thus no valid ground for thinking that if instead of the Municipality or some third party, Government make the purchase, the chances of the appellant company getting the proper price of its assets will be diminished. As regards the taking of possession again, the position does not seem to me any the different. In view of the fact that the appellant's rights under the licence are now irrevocably gone, it has only to sell off the assets and wind up its own concern with the undertaking. It seems to me, therefore, wholly immaterial whether the assets remained in the possession of the company or were taken over by the State Government An inventory was prepared and there is no doubt as to what the assets are. It appears to me that whether one regards the prejudice alleged to have been caused to the appellant company by the compulsory order of purchase or whether one regards the prejudice alleged to have been causedby the possession prematurely taken, the apprehension of loss is more imaginary than real. On the other hand, the effect of quashing of nullifying the orders made by the State Government will be to cause a suspension of the supply of energy, probably for an indefinite period, and cause grave hardship to the innumerable consumers who have done nothing to deserve it andalso to create a serious situation by the interruption bound to be caused in the water supply. Giving the matter the best consideration I can, I am unable to hold that protection of the slight private interest of the appellant company, even if there be any such interest, can furnish a just ground for the Court making an order which is bound to result in serious consequences to a large section of the public and also to other undertakings such as the railways.

38. A writ mandamus, the only writ thatcould properly be issued in this case, is not a writ of right. On the facts before us, we must holdthat although Government did not proceed during the last stages of the proceedings in accorddance with law, they had taken action againstthe appellant in furtherance of public interest. If,as I have tried to show, the appellant companyhas not been prejudiced in any real sense by suchpart of the proceedings as has been illegal, I donot think that we ought to direct the State Government by a mandamus to cancel the orders ordirect them to forbear from giving further effectto them, simply for the purpose of correcting theillegality that had occurred. I feel all the moredisinclined to do so, because it was brought to ournotice that the appellant proposed to proceedagainst the State Government for damages underthe general law and had already served a noticeunder Section 80 of the Code of Civil Procedure. Forall these reasons, I am of opinion that we oughtnot to interfere with the order made by Sinha, J.

39. At the same time, we must hold that however laudable the motive which Government had in view and howsoever much it might be in public interest that they proceeded, they did not keep themselves within the limits of the law and gave ample cause to the appellant to initiate the present proceedings, We, therefore, think that although we are not satisfied that we ought to make an order in favour of the appellant on the merits of the case, despite the irregularities established, we must express our disapproval of the disregard of the law for which Government have been responsible by mulcting them in costs.

40. In the result, therefore, we dismiss the appeal, but direct that the appellant will have its costs of this appeal from respondent No. 1.

41. Certified for two Counsel.

Das Gupta, J.

42. I agree.


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