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Jabbalpore Electric Supply Co. Ltd. Vs. the Madhya Pradesh Electricity Board and ors. - Court Judgment

LegalCrystal Citation
SubjectElectricity
CourtKolkata High Court
Decided On
Case NumberAppeal No. 95 of 1973
Judge
Reported inAIR1974Cal309
ActsConstitution of India - Article 226; ;Electricity (Supply) Act, 1948 - Sections 29, 34 and 47
AppellantJabbalpore Electric Supply Co. Ltd.
RespondentThe Madhya Pradesh Electricity Board and ors.
Appellant AdvocateR.C. Deb, ;Subrata Roy Chaudhury, ;Biswarup Gupta and ;Surit Roy Chaudhury, Advs.
Respondent AdvocateB. Das, ;P.K. Sen and ;Sibaji Sen, Advs.
DispositionAppeal partly allowed
Cases ReferredKhiarajmal v. Daim
Excerpt:
- sankar prasad mitra, c.j. 1. this is an appeal from the judgment of p. k. banerjee, j., delivered on may 9, 1972, on an application of the appellant under article 226 of the constitution challenging certain orders of the madhya pradesh electricity board. the learned judge has dismissed the application so far as the main prayers are concerned but has made the rule absolute with respect to a portion of the order/ notice of the respondent no. 1 dated the 29lh february, 1968, to the appellant for permanent closing down of the appellant's controlled station. by this order/notice the appellant was intimated that the respondent no. 1 would take over and purchase the jubbalpore generating station along with lands, buildings and structures pertaining to the said generating station and its premises.....
Judgment:

Sankar Prasad Mitra, C.J.

1. This is an appeal from the judgment of P. K. Banerjee, J., delivered on May 9, 1972, on an application of the appellant under Article 226 of the Constitution challenging certain orders of the Madhya Pradesh Electricity Board. The learned Judge has dismissed the application so far as the main prayers are concerned but has made the rule absolute with respect to a portion of the order/ notice of the respondent No. 1 dated the 29lh February, 1968, to the appellant for permanent closing down of the appellant's controlled station. By this order/notice the appellant was intimated that the respondent No. 1 would take over and purchase the Jubbalpore Generating Station along with lands, buildings and structures pertaining to the said generating station and its premises 'including associated office buildings, store buildings, workshops etc.' The Learned Judge has struck down the words 'including associated office buildings, Store Buildings, Workshop etc.' There is no cross appeal against this order and we have to proceed on the footing that by the order/notice of the 29th February 1968, the respondent No. 1 purported to take over and purchase the Jubbalpore Generating Station along with lands, buildings and structures pertaining to the said generating station, and its premises. The application under Article 226 of the Constitution was moved on the 26th March, 1968. The Learned Judge has refused to interfere with the orders/notices passed or given prior to the order/notice of the 29th February, 1968 and culminating in the said order/notice principally on the ground of delay. As the validity of the last order/notice dated the 29th February, 1968, was dependent on the validity of the previous orders/notices, the aforesaid last order/ notice was not interfered with except to the extent indicated above.

2. Let us now briefly discuss the facts of this case. The appellant was a licensee for generation and supply of electricity granted by the Government of Central Provinces and Berar to Martin & Co. on the 30th August, 1925. The licence was to he cited as the Jubbalpore Electric Licence, 1925. In 1927, pursuant to this licence, a generating plant and/or station was installed by the appellant at Jubbalpore.

3. On the 6th August, 1949, the appellant Jubbalpore Electric Supply Co. Ltd., having its registered office at 12, Mission Row in Calcutta entered into an agreement with the Governor of Central Provinces and Berar, inter alia, for supply of electrical energy to the Jubbalpore-Katni area and such areas as might subsequently be added to the same. Clause 16 of this agreement was as follows:--

Subject to the provisions contained in Clause 23 hereof, this agreement shall remain in force for a period of 20 years from the date of commencement of supply and unless then terminated by at least 12 calendar months' previous notice shall continue in force thereafter for subsequent periods of seven years until determined by either party at the end of any such period of 7 years by giving to the other party at least 12 months' clear notice in writing.'

4. We are not concerned in this appeal with Clause 23 of the agreement. In 1952, the Madhya Pradesh Electricity Board the respondent No. 1 herein was constituted under the provisions of the Electricity (Supply) Act, 1948.

5. The third proviso to Clause 11 of the agreement of the 6th August, 1949, provided that the Government might take over from the agent that is the Jubbalpore Electric Supply Co. Ltd., any or all the functions of the agent at any time by giving the agent not less that 6 months' prior notice of its intention to do so. On the 1st November, 1957, the respondent No. 1 gave notice to Messrs. Martin Burn Ltd., that it had decided to take over the agency functions in terms of Clause 11 of the agreement and was giving notice as required by the third proviso to the said Clause 11. The Board was also prepared to take over the functions of the agent even before the expiry of the notice, if the agent agreed.

6. On the 4th December, 1958, the respondent No. 1 sent to the appellant a proposed scheme described as Birsinghpur (Amarkantak Thermal Station) Scheme with a view to invite objections or representations with regard to the same.

7. On the 9th January, 1959, the appellant objected to the scheme, inter alia, on the ground that its object was to increase pressure and load on the appellant's generating station thereby exceeding the effective capacity of the station.

8. On the 9th February, 1959, the appellant's objection was rejected. And by notification dated the 7th March, 1959, the Madhya Pradesh Electricity Board sanctioned the Birsinghpur (Amarkantak Thermal Station) Scheme in the exercise of powers conferred by the relevant provisions of the Electricity (Supply) Act, 1948. The scheme, inter alia, provided for:

(a) the establishment of a 60,000 K.W Thermal Generating Station by the respondent No. 1 near Amlai in Shahdol District and

(b) the designation of the generating station belonging to the following licensees as controlled stations at which electricity shall be generated for the purposes of the M. P. Electricity Board:--

(i) the Jubbalpore Electricity Supply Co. Ltd., Jubbalpore

(ii) the Central India Electricity Supply Co. Ltd., Katni.

On the 13th March, 1959, the scheme was published in the Madhya Pradesh Gazette and also in two local dailies.

9. On the 18th March, 1959, the first impugned order in this appeal was passed by the Madhya Pradesh Electricity Board. The order is as follows:--

'Whereas the generating station belonging to the Jubbalpore Eleclric Co. Ltd. has been designated as a controlled station in the Birsinghpur (Amarkantak Thermal Station) Scheme which has been sanctioned and published by the Board ..... and whereas under the provisions of Section 34 read with the First Schedule of the Electricity (Supply) Act, 1948 the M. P. Electricity Board has decided to assume control of the said station with effect from 1-4-59 being the first day of the year 1959-60 of account of your Company (that is the Jubbalpur Electric Supply Co. Ltd.): 'You are, therefore, hereby informed in accordance with sub-paragraph (1) of paragraph I of the First Schedule of the said Act that 1-4-1959 ..... shall be the date of control of the said station.'

10. This order has been challenged before us on several grounds. Banerjee, J. is of the view that the challenge must fail on the ground of delay. According to the Learned Judge the scheme was sanctioned and published on the 7th March, 1959. The appellant's generating station was declared as a controlled station on the 18th March, 1959. The rule was obtained by the appellant on the 27th March, 1968. In these circumstances, in the opinion of the Learned Judge, the appellant cannot challenge the order.

11. It seems to us that on the ground of delay alone this application need not be refused. The appellant has challenged the order made on the 29th February, 1968, for the taking over of the entire Generating Station along with all lands, buildings, structures, including associated office buildings, store buildings, workshop etc. The application under Article 226 was made on the 26th March, 1968. The learned trial Judge has struck down a portion of the order of the 29th February, 1968. This order is the final order based upon three earlier orders challenged in these proceedings. The first of such earlier orders was made on the 18th March, 1959. In a case of this nature when there is no delay in challenging the last of a series of orders the fact that the earlier orders were not challenged in time, should not ordinarily deprive a petitioner of its rights under Article 226 of the Constitution. Secondly, the order of the 18th March, 1959, has been challenged as a nullity and not a mere irregularity. In other words, the order, according to the appellant is void and not merely voidable. The distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court to declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. But if an act is only voidable, then it is not automatically void. It is only an irregularity Which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the Court setting it aside: and the Court has a discretion whether to set it aside or not. It will do so if justice demands it but not otherwise. Meanwhile it remains good and a support for all that has been done under it: vide observations of Lord Denning, in Macfoy v. United Africa Co. Ltd., (1961) 3 All ER 1169 at pp. 1172 to 1173.

12. In the case of Khiarajmal v. Daim, (1905) 32 Ind App 23 at p. 33 also the Privy Council said that the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record. As against such persons the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside.

13. In the instant case the appellant's contention is that the order of the 18th March, 1959, was a nullity. If that contention be upheld, there was no need for an order of Court to set it aside. And the question of delay considerably loses its significance.

14. For all these reasons in the present appeal we intend to examine the merit of the contention that the order of the 18th March, 1959, was void and a nullity. By this order the appellant's generating station was designated as a controlled station in terms of the scheme we have already referred to under the provisions of Section 34 read with the 1st Schedule to the Electricity (Supply) Act, 1948. Mr. R. C. Deb learned Counsel for the appellant, has specially drawn our attention to the provisions of Sections 28, 29, 32 and 34 in Chapter V of the Act of 1948 and the first paragraph of the first schedule thereto. The aforesaid Sections deal respectively with (a) preparation of scheme (b) publication and sanctioning of schemes, (c) carrying out of the schemes and (d) controlled stations, Section 34 is as follows :--

''Where a generating station situate within an area for which a scheme is in force has been designated in the scheme as a controlled station, the relations between the Board and the licensee owning the station shall, subject to any arrangements agreed under Section 47 be regulated by the provisions of the First Schedule.'

The expression 'controlled station' has been defined in Section 2(4) of the Act. It means a generating station designated in a scheme sanctioned under Chapter V as a controlled station.

15. Now, analysing the provisions of Section 34 we find that a generating station can be designated as a controlled station provided that it is situate in an area for which a scheme is in force. Secondly, after designation the relations between the Board and the Licensee owning the station shall be regulated by the provisions of the First Schedule. If, however, there arc any arrangements agreed under Section 47, such arrangements would prevail over the First Schedule.

16. Section 47 runs thus:

'47. Power to Board to make alternative arrangements with licensees.

Notwithstanding anything contained in Sections 34 to 37 and Sub-section (2) of Section 46 but subject to any regulations made in this behalf, the Board may make such arrangements as may be mutually agreed with any licensee whose area of supply is situate within an area for which a scheme is in force, in regard to the purchase or sale of electricity and the price thereof, or the purchase, operation or control of any generating station or main transmission line:

Provided that in making any such arrangement the Board shall not show undue preference to any licensee.'

17. Mr. R. C. Deb has attacked the order dated the 18th March, 1959, on two grounds. Firstly, on the date of the order the appellant's generating station was not within an area for which a scheme was in force. Secondly, assuming that the appellant's generating station could be declared a controlled station, in accordance with provisions of Section 34, the terms of the agreement dated the 6th August, 1949, between the appellant and the Governor Central provinces and Berar would apply to the instant case and the relations between the Board and the Licensee would not be regulated by the provisions of the First Schedule. The agreement was to remain in force for a period of 20 years and was to continue thereafter for a period of 7 years until determined by one or the other party. In the present case the declaration by the order of the 18th March, 1959, appointing April 1, 1959, as the date of control, being contrary to the agreement dated the 6th August, 1949, is, submits Mr. Deb, a nullity.

18. Let us examine the two contentions aforesaid separately. The first contention is that the scheme which was published on the 7th August, 1959, called the Birsinghpur (Amarkantak Thermal Station) Scheme provided inter alia, for the establishment of (a) 60,000 KW Thermal Generating Station near Amlai in Shahdol District and (b) the designation of the generating station belonging, inter alia, to the Jubbalpore Electric Supply Co. Ltd., Jubbalpore as a controlled station at which electricity shall be generated for the purposes of the M. P. Electricity Board.

19. Mr. Deb's point is that until the scheme came into force, the appellant's generating station could not be designated as a controlled station. The Act makes distinctions between (i) a sanctioned scheme, (ii) a published scheme and (iii) a scheme in force; Sections 29 and 34 of the Act. Section 32 provides that the Board shall carry out and give effect to the scheme as soon as reasonably practicable after it has been sanctioned and where so required published. (A scheme does not require publication if it is estimated to result in a capital expenditure not exceeding Rs. 25 lacs: vide proviso to Sub-section (2) of Section 29).

20. Mr. Deb contends that a scheme may be sanctioned and published but these do not make it a 'scheme in force' unless it is actually carried out in terms of Section 32 of the Act. In the instant case, without establishing a 60,000 KW Thermal Generating Station no other step could be taken under the scheme. The Board was under an obligation to supply to the appellant the entirety of the electricity which the appellant required. The Board could not do so except by establishing its own generating station. In other words, the entire scheme was dependant on the Board having a generating station of its own. The expression 'scheme in force' with reference to this particular scheme has to be construed in this context and the scheme came into force only on the 1st April, 1965, when the Board had set up its own generating station. The Board has not passed any orders designating the appellant's generating station as a controlled station after the 1st April, 1965. The Board's order dated the 18th March, 1959, designating the appellant's generating station as a controlled station before the scheme came into force is, therefore, void and is a nullity.

21. Now, Section 18 of the Act of 1948 prescribes the general duties of the Board. Two of its duties are (a) to prepare and carry out schemes sanctioned under Chapter V and (b) to supply electricity to owners of controlled stations and to licensees whose stations are closed down under this Act. By Sub-section (1) of Section 43 the Board has been given the power to enter into arrangements with any person producing electricity within the State for the purchase by the Board, on such terms as may be agreed, of any surplus electricity which that person may be able to dispose of. This shows that the Board in order to fulfil its commitment for supply of electricity to owners of controlled stations in terms of Section 18 may also purchase electricity from other sources if so required. It is not therefore, correct to urge that unless the Board has its own generating station, it would not be in a position at all to supply additional electricity to a controlled station.

22. We now come to the most important section relevant for our purposes in this appeal and that is Section 28 in Chapter V. It runs thus:--

'28. Preparation of Schemes. -- With a view to rationalising the production and supply of electricity in any area the Board may from time to time prepare a scheme not inconsistent with this Act, for that area, in which provision may be made for all or any of the following matters, namely:--

(a) the establishment of the Board's own generating stations;

(b) the designation of generating stations, whether existing stations or new stations, as controlled stations at which electricity shall be generated for the purposes of the Board;

(c) the inter-connection, by means of main transmission lines to be constructed or acquired by the Board, of any generating stations with any system of licensees;

23. This section gives a clear indication that a scheme which is prepared by the Board, may provide either for the establishment of the Board's own generating stations or for the designation of generating stations whether existing or new as controlled stations or both. In the instant case the scheme, inter alia, provides for both the matters. And it was open to the Board to take steps for implementation of any of these matters as a step to carry out and give effect to the scheme. The first step that the Board took, was to declare the appellant's generating station as a controlled station. It cannot be urged, in our opinion, that the scheme was not in force when this designation was made. The scheme was duly sanctioned and published in accordance with the provisions of Section 29. And we agree with the learned trial Judge that the scheme came into force within the meaning of Section 34 when it was published in the Official Gazette. The words 'in force' mean 'valid' or 'operative': vide The Penguin Dictionary of English, page 289, and Shorter Oxford Dictionary Vol. I p. 731. A scheme which has been duly sanctioned and published in compliance with the provisions of Section 29 of the 1948 Act is, in our opinion, a scheme which is valid or operative, that is, a scheme 'in force'. And a generating station in the area in which the scheme was in force could be designated as a controlled station under Section 34. In the instant case the appellant's controlled station was specifically mentioned in the scheme and after the scheme was sanctioned and published it was designated as a controlled station by the order of the 18th March, 1959. From this point of view, in our judgment, the order was a good and valid order.

24. The next attack on this order of Mr. Deb is based on the agreement between the appellant and the Governor, Central Provinces and Berar dated the 6th August, 1949. We have already said that the agreement was to remain in force for a period of 20 years 'from the date of commencement of supply and unless then terminated by at least 12 calendar months' previous notice in writing shall continue in force thereafter for subsequent periods of seven years until determined by either party at the end of any such period of 7 years by giving to the other party at least 12 months' previous notice in writing.': vide Clause 16 learned Counsel for the appellant relies on Section 60 of the Act of 1948. It provides, inter alia, that all contracts entered into and all matters and things engaged to be done by, with or for the State Government for any of the purposes of this Act before the first constitution of the Board shall be deemed to have been incurred, entered into or engaged to be done, by, with or for the Board.

25. Learned Counsel submits that the Madhya Pradesh Electricity Board was constituted in 1952 after the agreement of the 6lh August, 1949. The terms and conditions of the agreement on and from the date of the constitution of the Board were to be deemed, therefore, to be the terms and conditions of a contract between the appellant and the Board. And the Board could not put an end to that agreement without complying with the terms of Clause 16 thereof.

26. That being the position, according to Mr. Deb for the appellant, the designation of the appellant's station as controlled station under Section 34 of the Act of 1948 read with the 1st Schedule thereto could not be made without duly terminating the agreement of the 6th August, 1949. The order of the 18th March, 1959, is contrary to the provisions of the agreement. During the period of the agreement, the first Schedule (which deals with the terms and conditions of the Board's 'Assumption of Control') could not be invoked for purposes of Section 34. The inconsistencies between the terms of the agreement and those of the first Schedule, says Mr. Deb, affect the validity of the order of the 18th March, 1959. It suffers from jurisdictional defect.

27. This point made on behalf of the appellant requires careful consideration of the relevant provisions of Sections 34 and 47 of the Act. Section 34, as we have seen, provide that where a generating station within an area for which a scheme is in force has been designated in the scheme as a controlled station, the relations between the Board and the licensee owning the station shall, subject to any arrangements agreed under Section 47, be regulated by the provisions of the First Schedule. Section 47 gives power to the Board to make alternative arrangements with licensees. It says:

'Notwithstanding anything contained in Section 34 ..... but subject to any regulations made in this behalf, the Board may make such arrangements as may be mutually agreed with any licensee whose area of supply is situate within an area for which a scheme is in force, in regard to the purchase or sale of electricity and the price thereof, or the purchase, operation or control of any generating station or main transmission line'.

28. The position, therefore, is that in an area in which a scheme is in force the Board has power under Section 47 to make alternative arrangements for purchase or sale of electricity and when such an arrangement is made designation of controlled stations under Section 34 would be subject to that arrangement. In these cases the arrangement would prevail over the provisions of the First Schedule relating to the terms and conditions of the Board's assumption of control. In the instant case the agreement of the 6th of August, 1949, between the appellant and the Governor, Central Provinces and Berar was not an alternative arrangement with a licensee in an area in which a scheme was in force on the date of the agreement. The agreement is dated the 6th August, 1949. The Board was set up in 1952. The scheme came into force in August, 1959. This agreement, therefore, cannot be an agreement under Section 47 at all and it does not stand in the way of assumption of control by the Board on terms and conditions mentioned in the First Schedule to the Act of 1948.

29. Moreover, Clause 26 of the agreement itself provides: 'Nothing contained in this agreement or any amendments thereof shall restrict any rights, obligations and discretions of the Government which it will derive under the 'Electricity (Supply) Act, 1948', nor shall it restrict rights, obligations and discretions of a Provincial Electricity Board constituted by the Government under the provisions of Clause 5 Chapter III of the Electricity (Supply) Act, 1948.' This provision enables State Government or the State Electricity Board constituted by it, to exercise the rights, obligations and discretions derived under the Act of 1948 despite the terms and conditions of the agreement. In our opinion, therefore, the existence of the agreement of the 6th August, 1949, does not prevent the application of the First Schedule to the Act to the appellant's controlled station in terms of the order of the 18th August, 1959.

30. An argument was advanced before us on behalf of the respondents to the effect that the appellant had acquiesced in the order of the 18th March, 1959. But as we are of opinion that the order in its entirety is valid, we do not propose to deal with this argument.

31. The next order under challenge in this appeal is the order of January 1/5, 1963. It is at page 84 of the Paper Book. In a letter to the appellant the Board's Secretary stated as follows :--

'Since then grave national emergency arose and it was necessary to act without delay. Accordingly 500 KW Diesel Set was installed at the Grid Sub-station to augment the power capacity of the Jubbalpore Supply Co.'s Power Station and serve the needs of the essential defence installations at Jubbalpore. The Set was commissioned on 20-12-1962. The needs of the Defence Department are quite large and Diesel Sets -- 2 x 750 KW and 1 x 500 are being installed to feed the Jubbalpore Electric Supply Co.'s system. These Sets together with the steam plant at the Power Station will operate as a combined station to meet the needs of this area.

'You are therefore requested that the costs to be ascertained in accordance with the provisions of the Eighth Schedule Vide paragraph IV and paragraph V of the First Schedule to the Indian Electricity (Supply) Act, 1948 should take into consideration the installation and commissioning of the Diesel Sets.

The Superintending Engineer, Central Circle, M. P. Electricity Board, Jubbalpore, is being asked to give you the necessary capital expenditure figures as well as the running operation and maintenance cost figures to enable you to prepare your monthly cost of production bills.'

32. By this letter/order the Board was seeking to combine its own generating station with the appellant's generating station under Clause VII of the First Schedule to the Act of 1948. Clause VII begins with the words 'Where any licensee owns more than one controlled station.' In the present case the licensee, that is the appellant, did not own more than one controlled station. And a combination of the licensee's station with another person's controlled station was not permissible under Clause VII of the First Schedule. This order of January 1/5, 1963, is not therefore, in our opinion, sustainable. Learned Counsel for the respondents concedes that the order of combination could not be made under Clause VII of the First Schedule. He submits that this order was made not under Clause VII but under Clause I (1) (b) and (c) of Part I of the First Schedule. Let us go through the relevant provisions on which the respondents' counsel relies.

'Part I -- Assumption of Control.

I (1) The Board shall by notice in writing to the licensee fix a date (hereafter in this Schedule referred to as the date of control), being the first day of a year of account of the licensee, and from such date the licensee shall, except where prevented by causes beyond his control, be under obligation-.....

(b) to operate the station so as to generate such quantity of electricity with such units of plant at such rate of output and at such times, or to cease to generate electricity during such period as the Board may direct;

(c) to carry out as soon as may be practicable such reasonable extension, alterations or renewals of the station or any part thereof as the Board may from time to time direct;

33. It seems to us that Sub-clauses (b) and (c) of Clause I (1) of the First Schedule do not enable the Board to direct a combination of two Power Stations belonging to two different persons. The Board under these sub-clauses, may direct a licensee to operate its own Station to generate such quantity of electricity with such units of plant belonging to the said licensee as the Board may direct. The Board may also direct reasonable extensions, alterations or renewals of the licensee's station or any part thereof; but the Board cannot direct the licensee to generate electricity with a Power Station of which he is not the owner. We should further point out that the order dated January 1/5, 1963, it appears to us, was not made at all under Sub-clauses (b) and (c) aforesaid assuming that such an order could be passed. The order refers to the Eighth Schedule for ascertainment of costs. And the Eighth Schedule is specifically referred to in Sub-clause (c) (i) of Clause VII.

34. For reasons aforesaid we hold that the Board had no jurisdiction to pass the order dated January 1/5, 1963 and the said order is bad and invalid.

35. The next impugned order in this appeal is the order dated the 27th September, 1967. This order is at page 86 of the Paper Book. By this order the respondent No. I, inter atia, declared under Section 36 of the Act of 1948 that the appellant's generating Station at Jubbalpore would be closed down permanently on service of six months' notice as required in paragraph XVI of the First Schedule to the Act with effect from April 1, 1968, which was the first day of the next succeeding year 1968-69 of the appellant's account. By this order a six months' notice was also given for closing down.

34. Learned Counsel for the appellant has urged before us that this order of the 27th September, 1967, is dependent on the fundamental assumption that the order of the 18th March, 1959 by which the appellant's Power Station was designated as a controlled station was good and valid. According to Counsel the fundamental assumption is erroneous and, therefore, the notice/order dated the 27th September, 1967, is bad.

37. Section 36 of the Act of 1948 is as follows :--

'36. Power to Board to close down generating stations.- 'The Board may at any time declare to a licensee owning a generating station situate within an area for which a scheme is in force that the station shall be permanently closed down, and thereupon but without prejudice to the provisions of Section 47, where the station is a controlled station the provisions of Part III of the First Schedule, or in other cases the provisions of the Third Schedule, shall apply in respect of the relations between the Board and the said licensee with reference to the station to be closed down.'

38. This section should be read with Clause xvi of Part III of the First Schedule to the Act. Part III deals with 'Permanent closing down of a controlled station.' Clause xvi is as follows:--

'The Board may give the licensee not less than six months' notice in writing expiring at the end of any year of account that from the first day of the next succeeding year of account it will not again direct the licensee to generate any electricity in the station, and upon that (hereinafter in this Schedule referred to as the date of closing down) the station shall be permanently closed down.'

39. We have already held that the order of the 18th March, 1959, is valid. That is to say, that the appellant's generating station was properly designated as a controlled station. The fundamental assumption, therefore, for the order of the 27th September, 1967, is not erroneous. Then, upon consideration of the provisions of Section 36 of the Act of 1948 and of Clause xvi of Part III of the First Schedule to the Act, it seems to us that the order of the 27th September, 1967, was made in compliance with the aforesaid provisions. The permanent closure of the appellant's power station cannot, therefore, be challenged.

40. The last impugned order is the order of the 29th September, 1968, at page 91 of the Paper Book. By a letter dated the 29th February, 1968, the Secretary, M. P. Electricity Board stated, inter alia, as follows:

'You are further intimated that in compliance with the law the Board will take over and purchase your Jubbalpore Generating Station along with lands, buildings and structures pertaining to the said generating station and its premises including associated office buildings, store buildings, workshop etc.'

41. We have already stated that the Learned Trial Judge has struck down a portion of the order, namely, the words 'including the associated office buildings, store buildings, workshop etc.' There is no cross of appeal with regard to this order of the Trial Judge. Mr. R. C. Deb, Counsel for the appellant has challenged the remaining portions of the order as well. He says that the taking over and purchase of the Jubbalpore Generating Stalion is dependent upon the validity of the order of the 18th March, 1959 and since that order was bad, the order of the 29th February, 1968, should have also been struck down. We have already held that the order of the 18th March, 1959 is a good and valid order. That being so, the order of the 29th February, 1968, is also a good and valid order. It was made in accordance with the provision of Section 37 of the Act of 1948, relating, inter alia, to purchase of generating stations read with Clauses xvi and xvii (b) of Part III of the First Schedule to the Act.

42. We have expressed our views on all the notices/orders which were challenged before us in this appeal. The result is that the appeal is partly allowed. The notice/order dated January 1/5, 1963, is struck down and declared invalid and we direct that appropriate Writs do issue. The Notices/orders dated the 18th March, 1959, the 27th September, 1967 and the 29th February, 1968 (except with respect to portions already struck down by the trial court) are good and valid and must be upheld. Each party will bear and pay its own costs of the appeal.

Sabyasachi Mukharji, J.

I agree.


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