1. In this rule the petitioner challenges the order by which the respondent demanded a sum of Rs. 26,164/- per annum as rent of 500 KW Mirlees Diesel Set. It is not necessary for me to refer the facts of the case in detail but it will suffice to say that while the rent payable was fixed at Rs. 26,164/- per annum on the basis of the facts that fixing the remaining life of the set, the department stated that the set is to be taken as life of 12 years. The petitioner stated that the mode of fixing the rental on that basis was patently wrong and contrary to the Seventh Schedule of the Act. The case of the petitioner, as made out in the petition, is that the set was purchased in 1950 for a sum of 13000 and admittedly there is no dispute that the costs of the set was originally Rs. 2,95,000/-. On the basis of the said amount, it is stated by the petitioner, that the rent as fixed by the respondent is wholly illegal. It is further stated that the rent so fixed was in violation of the Seventh Schedule of the Electricity (Supply) Act, 1948. For the purpose of the Seventh Schedule we may set out the Seventh Schedule which provides as follows:
'C. Assets purchased new-
(a) Plant and machinery in generating stations, including plant foundations--(i) Hydro-electric . . Thirty-five (ii) Steam-electric . . Twenty-five (iii) diesel-electric . . Fifteen.
(b) Cooling towers and circulating water systems . . Thirty.
(c) Hydraulic works forming part of a hydro-electric system including-
(i) dams, spillways, weirs, canals, reinforced concrete flumes and syphons .. One hundred.
(ii) reinforced, concrete pipe-line and surge tanks, steel pipelines, sluice gates, steel surge tanks, hydraulic control valves and other hydraulic works .. Forty.' It is admitted that this is a Diesel electric set and the life under the Schedule of the fable is 15 years from the date of purchase. It is also relevant for me to set out D to the Seventh Schedule which provides as follows:--
D. Assets purchased secondhand andassets not otherwise provided for in this Table.
Such reasonable period as theState Government determines in each. Case having regard to the nature, ageand condition of the asset at the time of its acquisition by the owner.'
2. Mr. Subrata Kumar Roy Choudhury on behalf of the petitioner contended that admittedly the set was purchased in 1952 or 1953. He took 1953 as the date when set was purchased. Applying the principle therefore the set was purchased in 1953 and it is more than 12 years old. Therefore it is argued by Mr. Roy Choudhury that applying the Seventh Schedule the fixation of Rs. 26,164/- per annum as rent is invalid.
3. On behalf of the respondent however, Mr. Das contended that the set did not run for most of the time. In the Seventh Schedule it is computed on the normal average annual running hours of a continuously operating power station of an electric utility undertaking. It is argued that the life of 15 years is based on 3000 working hours per year and therefore it is argued that the total working of 45000 hours is a life of a machine as the particular machine did only run for 8,820 hours, the fixation of the rent was made accordingly. This case of the respondent is to be found in paragraphs 27 and 28 of the affidavit-in-opposition.
4. In my opinion, the section, as it stands today, cannot be construed as argued by Mr. Das. It is not stated therein that the working hour is to be taken into consideration for the purpose of computing 15 years run of the machine. It must be stated that the machine itself ran about 12 years admittedly and therefore to compute rent on that basis of working hours during the period cannot be correct on provision of the statute as it stands. Mr. Das further contended that this is a second hand machine. Even if, that is so, there must be an order by the State Government under 'D' of the Seventh Schedule but no such determination has been made. In the circumstances, therefore, the Order is set aside and the matter goes back to the competent authority either to fix the rents on the basis of the Seventh Schedule C or D as the case may be and thereafter proceed in accordance with law.