D.N. Sinha, J.
1. The petitioner in this case is the Managing Director of the Assansol Electric Supply Co. Ltd. (hereinafter referred to as the 'said company'). The said company is a licensee' under Part II of the Indian Electricity Act, 1910 (Act IX of 1910). In 1932, a licence for supply of electrical energy was granted by the Government of Bengal under the Electricity Act, 1910 to one A. K. Bajpaie of Calcutta to supply electrical energy at Asansol. In of about the 7th July, 1936 the said A. K. Bajpaie transferred his business together with his leasehold interest to the said company. Thereafter, the licence granted to the said company was amended and the Asansol Municipality felt within the area of supply of the licence granted to the said company. The Asansol Municipality has been superseded under Section 553 of the Bengal. Municipal Act, 1932 and the respondent No. 1 Shri A. K. Das Gupta has been appointed as its Administrator. The Asansol Municipality entered into a contract with the Indian Iron and Steel Co. Ltd., for supply of electrical energy to the Municipal Water Pumping Station situated on the bank of the Damodar river, which is at some distance from the municipal area. The Indian Iron and Steel Co. Ltd., in February, 1960 intimated to the said Municipality of its inability to continue to supply power to the Municipal Water Works, after the 3rd December, 1960. The Municipality thereupon started nega-tiations with various parties including the Asansol Electric Supply Co. Ltd. for the supply of power and eventually approached the State of West Bengal which referred the matter to the State Electric Board constituted under the Electricity (Supply) Act, 1948 (Act No. 54 of 1948). As I have already stated, negotiations had in the meantime been going on between several parties and the Asansat Electric Supply Company quoted certain rates for the supply of power subject to various conditions, but these rates and the terms and conditions were not acceptable to the Municipality which asked for a modification of the same. There was never a concluded contract between the said company and the Asansol Municipality for supply of power to its pumping station. The Board contacted the Dishergarh Power Supply Co. Ltd., as to whether they would be able to supply power to the Water Pumping Station of the Asansol Municipality. The Dishergarh Power Supply Co. Ltd., intimated their inability to do so, as the Pumping Station was outside their area of supply. It stated, however, that it would be able to supply 200k.w. maximum demand, to the Board, from a point of supply from the Dishergarh Power Supply Co.'s existing Ohakeshwari Sub-Station, from where the, Board could supply electrical energy to the said Pumping Station. Thereupon, the Board intimated to the Municipality that the Board was agreeable to supply the necessary power by drawing a new high voltage line from the Dhakeshwari Sub-Station of the Dishergarh Power Supply Co. Ltd., to the site where the Pumping Station was situated on the banks of the Damodar river, if the Municipality was prepared to pay the cost thereof. The Municipality approached the State Government for financial assistance in the matter. On or about the 4th August, 1950 a scheme had been promulgated for improvement of the Asansol Water Supply. By notification dated 18th October, 1938 rules had boen promulgated for the preparation, publication and execution of projects for water supply, sewerage or drainage by municipal authorities. According to the said rules, the scheme has to be drawn up in a particular manner and has to be submitted for approval by Government. When the scheme is approved by Government, it is necessary under Rule 8 to publish the same in the Official Gazette, inviting objections from parties interested. After considering any objection or suggestion that may be received, the Government may either sanction or reject the scheme as published or amend it, after which it becomes final. After the final sanction, the final scheme is published and work can then be taken in hand. Under ft. 11, if at any time during the progress of the work, the municipal authority has reason to anticipate that the sanctioned detailed estimate would be exceeded by more than 10 per cent, or if it shall at any time appear to the municipal authority that the sanctioned detailed scheme will require 'Material alteration', the municipal authority shall forthwith submit to Government for sanction, a revised sciieme with revised estimates and plans and thereafter the work can be commenced after the sanction is received. It will appear, therefore, that in such a scheme, after the preliminary approval by Government, the scheme has to be published and objection invited and all objections preferred have to be considered before the scheme can be made finai. But once it is made final, if the estimate is exceeded by ton per cent or if there is any material alteration in the scheme then, further Government sanction is necessary and a revised scheme may have to be made in the later case, but there is no further provision for inviting public objection. In this case what happened was that a scheme (or improvement of the water supply etc. of the Asansol Municipality was drawn up in accordance with the rules, and there was public notification as required and the scheme was finalised. When the Municipality approached Government for financial assistance in order to construct the transmission line from the Dhakeswari Sub-Station, the Government decided to advance an amount of Rs, 88,300/- required for that purpose, and to treat it as a part of the Asansol Water Supply Improvement Scheme. The Administrator was informed that as the excess of expenditure was within 10 per cent of the sanctioned estimate, no sanc-tion was necessary and there was no impediment in the execution of the additional work. Thereafter, the Govern-merit paid the money to the Board and the erection of the transmission lines was taken in- hand. When this application was originally made, the erection was nearly completed and now it has been futly completed and power is being supplied by the Board to the Municipal Pumping Station. The result has been that the Asansol Electric Supply Co. Ltd., has been foiled in its attempt to get the contract for supply of electricity to the Municipal Pumping Station, and has made this application. The prayer in the petition is for the issue of a rule on the respondents to snow cause why a writ or order or direction should not issue directing the respondents to consider the representations of the petitioner marked as annexures Q, R and R2 to the petition and on consideration thereof, to allot to the Asansol Electric Su'pply Co. Ltd., the power to supply electrical energy to the Asansol Municipal Water Pumping Station. The other reliefs seek to prevent the Board from supplying the electrical energy.
2. Mr. Dutt appearing on behalf of the petitioner has framed his argument thus : The first argument is thai the Board is not entitled to supply electrical energy to the Municipality, without first framing a scheme under Chapter V of the Electricity (Supply) Act, 1948. According to him, the Board can only supply electricity to a private party other than a licensee, after the framing of such a scheme, which can only be framed after giving requisite notice to persons interested, and hearing their objections. According to him, no such scheme has been framed and, therefore, the supply is illegal. The second point made is that the original scheme for the improvement of water supply relating to the Asansol Municipality having been finalised, this alteration of the scheme by sanctioning a further sum for drawing a transmission line, amounted to a 'material alteration' and therefore further opportunity should have been given to the interested parties to object against this variation. This not having been done, the Government could not treat this demand as a part of the scheme, nor could the Municipality accept the same, or give effect to the variation. In other words, the Municipality cannot legally accept a supply of power from the Board.
3. Before I proceed to deal with these points, I must mention certain preliminary points which have been taken by the respondents to the maintainability of this application. The first preliminary point is that it is not the Asansol Electric Supply Co. Ltd. which has made this application but the cause-title shows that the applicant is the 'Managing Director, Asansol Electric Supply Co. Ltd.' It is argued that the Managing Director has no right to maintain this application. The second preliminary objection is that even assuming that the Asansol Electric Supply Co. Ltd., is to be considered as the applicant, it is a 'Licensee' as defined in Section 2(h) of the Indian Electricity Act, 1910. According to its licence, it can only supply electricity within its 'area of supply mentioned tn its licence'. It cart only supply electricity beyond its area of supply, after obtaining an authority in writing to that effect under Section 27 of the Indian Electricity Act. In this particular case, it had no such sanction or authority. In the absence of such authority, it has no legal right to supply electrical energy to the Asansol Municipal Water Pumping Station and, therefore, could not maintain a writ application which can only be maintained by a person having a legal right and in aid thereof. The third preliminary point taken is that in so far as the petitioner has prayed for preventing the execution of the work, namely, installation of the transmission line, the application has become infructuous because the transmission lines have been completely erected and electrical power was being supplied already.
4. I shall deal with these preliminary points first. It is apparent from the cause-title of the petition that the petitioner is the Managing Director of the Asansol Electric Supply Co. Ltd., and not the company itself. Not only does it so appear from the cause-title, but it appears from paragraph 1 of the petition itself wherein it is admitted) that the petitioner was the 'Managing Director of the Asansol Electric Supply Co. Ltd.' In paragraph 3 it is mentioned that the petitioner was authorised by an appropriate resolution of the Directors of the Company to sue on its behalf. The resolution of the Board of Directors dated 28th June, 1961 has been produced before me and it shows that the Managing Director was 'authorised to sue and ba sued on behalf of the company'. Mr. Dutt has also referred me to the Articles of Association of the Asansol Electric Supply Co. Ltd. By Clause 119, it nas been provided that the Board may from time to time entrust to, and confer upon a Managing Director such of the powers exercisabie under the Articles by the Directors as they may think fit. In my opinion, the preliminary point is of substance. The company is a body corporate and has the right to sue and be sired. Neither the Directors nor the Managing Director can be authorised to sue on behalf of the company in their own names. The rules of procedure prevailing in this Court, including Rules 15 and 19 of the rules in the writ jurisdiction make provisions for the institution of legal action on behalf of a company and there is no such rifle enabling the Managing Director to sue on behalf of a company incorporated under the Indian Companies Act, in his own name. If the application had been made on behalf of the company, and it was merely signed and affirmed in the proper manner by the Managing Director, that would be one thing. This, however, is not what has happened in the present case. Here, the applicant is the Managing Director himself, and not the company, and the provisions of the rules relating to applications made by a company have not been complied with. Mr. Dirtt has cited a Supreme Court decision, Calcutta Gas Co. (Proprie tary) Ltd. v. State of West Bengal, : AIR1962SC1044 . The facts in that case were as follows : The petitioner, The Calcutta Gas Co. (Proprietary) Ltd., had entered into an agreement with the Oriental Gas Co. Ltd., Calcutta, whereby it had the right to manage the latter Company for a period of twenty years. The West Bengal legislature passed the Oriental Gas Company Act, 1960 under which the Calcutta Gas Company (Proprietary) Ltd., was deprived of the right of management for a period of five years. It was held that the Calcutta Gas Co. (Proprietary) Ltd. had a right to apply under Article 226 of the Constitution. Subba Rao, J. said as follows :
'The first question that falls to be considered is whether the appellant has locus standi to file the petition under Article 226 of the, Constitution. The argument of learnsd: counsel for the respondents is that the appellant was only managing the industry and it had no proprietary right therein and, therefore, it could not maintain the application. Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also approach the Court seeking a relief there-under. The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit In the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. In the State of Orissa v. Madan Gopal, : 1SCR28 , this Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Article 226 of the Constitution. In Charan-jit Lal v. Union of India, : 1SCR869 , it has been held by this Court that the legal right that can be enforced under Article 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. We do. not see any reason why a different principle should appiy in the case of a petitioner under Article 226 of the Constitution. The right that can be enforced under Article 226 also shall ordinarily be personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. The question, therefore, is whether in the present case the petitioner has a legal right and whether it has been infringed by the contesting respondents.'
5. It was held that the petitioner, namely, the Calcutta Gas Co. (Proprietary) Ltd. had a contract with the Oriental Gas Co. and the impugned Act took away that right. Therefore, it had a right to maintain the application. In my opinion, that case and the enunciation of the law mentioned above, does not assist the petitioner in this case, but is destructive of it. The Managing Director could maintain an application, if his own right was affected and, in order to indicate the same. That, however has not happened in this case. The right which has been claimed to have been infringed is that of the company. Faced with; this difficulty, Mr. Dutt made the alternative case 'hat under Clause 118 of the Articles, the Managing Director 's entitled to additional remuneration and the inability of the company to get the contract, affected his additional re-muneration and thus the Managing Director had a cause of action. The petition, however, nowhere mentioned this cause of action and the application, as has been presented, is not to enforce that right. In fact, the petitioner cannot be allowed to put forward this cause of action which has not been pleaded. This preliminary objection should, therefore, prevail and the frame of the application should be declared as defective. However, I intend to go into the merits and not to dispose of the application on this preliminary ground alone. The second preliminary objection taken appears to me to be equally fatal. Even assuming that this application is to be considered as an application by the company, namely. The Asansol Electric Supply Co. Ltd., it is not denied that it is a 'licensee' as defined in the Indian Electricity Act. Under that Act, a 'Licensee' is a person or a body of persons to whom the State Government may have granted a licence to supply energy in any specified area. It is not again disputed that the 'area of supply' as specified in the licence does not include the municipal water supply pumping station which Is situated: outside the area, on the banks of the Damodar at some distance from the city of Asansol. It is true that the company might have made the supply after obtaining sanction from Government under Section 27 of the said Act. At the moment, however, it has neither applied for such sanction nor received it. I do not see, therefore, how the company can maintain an application, because no legal right could possibly exist without such sanction having been first ab-tained, which it never had obtained. This preliminary objection should, therefore, prevail. As regards the third preliminary point, it is in evidence from the affidavits before me that the transmission line has now been duly completed, and therefore that part of the prayer which seeks to prevent the execution of the said work has become in-fructuous. This, of course, would not by itself make the whole application bad. If the petitioner in a properly framed application succeeded in showing that either the Board was violating the law in supplying the energy to the municipality or that the municipality was violating the law in taking such energy then, apart from the erection of the transmission line, some relief could have been given. I will now enter into the merits of the case and investigate the question as to whether, if the application was in proper form, a ground has been made out for interference by this Court.
6. On the merits, as stated above, two points have been taken. The first point is that the Board could not supply electricity to the municipality which was not a 'licensee' under the Indian Electricity Act, unless a scheme was sanctioned under Chapter V of the Electricity (Supply) Act, 1948 relating to the area in which the supply was being made. The second point is that the municipality on the other hand could not take power from the. Board unless the improvement scheme already sanctioned for the municipality was altered and public objections invited as to the alterations.
7. I shall deal with the first point now. For this purpose, two statutes have to be considered, the first being the Indian Electricity Act, 1910 (Act IX of 1910) and the other is the Electricity (Supply) Act, 1948 (Act No. 54 of 1948). Both these Acts are Central Acts and apply to the whole of India. I shall first of all deal with the Indian Electricity Act, 1910. In Section 2, the word 'licensee' has been defined to mean any person licensed under Part II to supply energy and 'area of supply' has been defined to mean the area within which alone a licensee is for the! time being authorised by his license to supply energy. The word 'consumer' means any person who is supplied with energy by a licensee or the Government or by any other person engaged in the business of supplying energy to the public under the said Act, or any other law for the time being in force. Under Section 3, the State Government is empowered, on application made in the prescribed form, and on payment of the prescribed fee if any, to grant, after consulting the State Electricity Board, a license to any person to supply energy in any specified area. All licences taken out by a 'licensee' specify the area of supply. A licensee is not permitted to supply electric energy beyond the area of supply except after obtaining sanction in writing from the State Government under Section 27. It is provided that no such authority shall be conferred unless the person to whom the supply is given has entered into a specific agreement with the licensee for the taking of such supply. I now come to the Electricity (Supply) Act, 1948. Under Section 5, the State Government is empowered to constitute, by notification in the Official Gazette, a State Electricity Board. The West Bengal State Electricity Board, a respondent in this application, is a Board constituted under Section 5. Section 18 lays down the general duties of the Board. Subject to the provisions of the said Act, the Board is charged with the general duty of promoting co-ordinated development of the generation, supply and distribution of electricity within the State, in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by any licensee. The duties of the Board in. that behalf are laid down and Clause (c), as follows:
'(c) to supply electricity as soon as practicable to any other licensees or persons requiring such supply and whom the Board may be competent under this Act so to supply.'
8. Section 19 lays down the powers of the Board to supply electricity. It is provided that the Board may, sub-ject to the provisions of the said Act, supply electricity to any licensee or person requiring such supply, in any area in which a scheme sanctioned under Chapter V is in force. There is, however, a proviso which lays down certain prohibitions in respect of such supply. The argument advanced is briefly as follows: Under Section 18, the Board can supply-electricity to persons other than licensees, provided however that the Board was competent to do so under ;he said Act. It is argued that the powers of the Board to-supply electricity to any licensee or person requiring such supply are to be found under Section 19 which severely restrict it to an area in which a scheme sanctioned under. Chapter V is in force. Chapter V lays down the provisions for the preparation 6f a scheme. It is not disputed that in the area of supply in which the water pumping station of the municipality is situated, no scheme has been promulgated by the Board under Chapter V. Under Section 2(6). of the said Act a 'licensee' means a person licensed under Part II of the Indian Electricity Act, 1910 but it does not include the Board. Section 26 provides that subject to tlie provisions of the said Act, the Board shall, in respect. of the whole State, have all the powers and obligations of a licensee under the Indian Electricity Act, 1910 and the Electricity (Supply) Act, 1948 shall be deemed to be the licence of the Board for the purposes of that Act Certain provisions of the Indian Electricity Act, however, have not been made applicable to the Board. The argument: therefore comes to this, that the Board is not an ordinary licensee. Its activities are. controlled by the Electricity (Supply) Act, 1948. Ordinarily, it frames a scheme for promoting the co-ordinated development of the generation, supply and distribution of electricity within the State, in tna most efficient and economical manner. It can supply electricity to persons other than licensees directly, but this-power is to be found under Section 19 and can only be exercised in areas where a scheme has been sanctioned under chapter V. In advancing this argument, It is overlooked. that Section 19(1) has been expressly made, 'subject to the provisions of this Act', namely, the Electricity (Supply) Act, 1948. if the matter stood there, there would be great difficulty in the way of the respondents. Admittedly, no scheme had been framed and in order to frame this scheme there would have to be a publication thereof by giving public notice and hearing persons interested who may have made representations against it. It is argued that if such a scheme had been promulgated, the Asansol Electricity Supply Company could have advanced objections. But my attention has been drawn to Section 49, which specifically provides for the sale of electricity by the Board to persons other than licensees. Section 49 is in the following terms :
'49. Provision for the sale of electricity by the Board to persons other than licensees : Subject to the provisions of this Act and of any regulations made in this behalf, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board may from time to time fix having regard to the nature and geographical position cf the supply and the purposes for which it is required :
Provided that in fixing any such terms and conditions the Board shall not show undue preference to any person.'
9. Mr. Dutt has argued that in reading Section 49 we must net forget the provisions of Section 50, which runs as follows :
'50. Board not to supply electricity in certain circumstances : Nothing contained in Sections 34, 35 and 36 shall apply in any case where under Section 19, it is not permissible for the Board to supply electricity directly to a licensee owning a generating station; and nothing in Sections 46, 47 and 49 shall empower the Board to supply electricity direct ly to any licensee or person to whom it is not otherwise entitled to supply electricity.'
10. Mr. Dutt^argues that Section 49 does not empower the Board to supply electricity directly to a person other than a licensee to whom it is not entitled to supply electricity under Section 19, namely, in areas where there is no sanctioned saheme. In my opinion, that is not a correct reading of the provisions of the said Act. Under Section 18, the Board can supply electricity to a person other than a licensee if it is competent to do so under the Electricity (Supply) Act, 1948. if the power of the Board to supply electricity was confined to Section 19, there was no point in making any provision for the sale of electricity by the Board to persons other than licensees, under Section 49. The relevant portion of Section 50 merely lays down that the Board shall not supply electricity directly to a person other than a licensee, if under the proviso to Section 19(1) such supply is prohibited, or where there was some other provision in the said Act prohibiting such supply. The pro-visions of Section 19 are subject to the provisions of the whole Act and there is no prohibition for the sale of electricity by the Board to a person other than a licensee in an area where there was no licensee or a buik licensee. Where there was a licensee or a bulk licensee already in existence, there is express prohibition in the proviso to Sub-section (1) of Section 19 in supplying energy without the consent of the licensee or the bulk licensee in respect of their area of supply. In my opinion, reading the various provisions cf the Electricity (Supply) Act, 1948, there is no impediment in the supply of electrical energy by the Board to the Asan-sol Municipality, at a point which does not fall within the area of any licensee or built licensee.
11. I now come to the second point. 1 have already stated that in exercise of the power conferred by Section 311 of the Bengal Municipal Act, 1932 rules have been made for the preparation, publication and execution of projects for water supply, etc. by municipal authorities. The rales lay down the procedure for obtaining approval for a project. First of al, a project is to be mooted and then the administrative approval of Government has to be obtained. Then detailed plans and estimates have to be submitted and a scheme is drawn up. This scheme, after approval, has to be published in the official Gazette and objections invited to the same. These objections have to be considered and then the Government, either shall sanction the scheme or refuse to sanction it. Then, the work is taken in hand. At that stage, if there is reason to anticipate that the sanctioned estimate would be exceeded by more than ten per cent, or that the detailed scheme requires 'material alteration', then the municipal authority must obtain further Government sanction and may have to submit a revised scheme with revised estimates and plans. At that stage, no further publication or inviting of objections is provided for by the rotes. In this particular case, what actually happened was that a scheme was mooted and sanctioned. Later on, it was proposed that Government should pay an additional sum in order to aid the Municipality in ths construction by the Board, which agreed to supply power from the sub-station at Dhakeswari, of a transmission line, to the point where the Asansol Municipality was constructing the water pumping station on the banks of the Damodar river. It will be recollected that Government itself agreed to make this payment and treated this as part of the scheme. Mr. Dutt argued that this was illegal because here was a material variation of the original scheme and it required the drawing up of a fresh scheme after inviting objection. This not having been done, the whole thing was illegal. Firstly, he is in error in thinking that a material variation of the original scheme would require the drawing up of a fresh scheme after publishing the same and after inviting public objection. 'A revised scheme', even if it is a material alteration of the original scheme, merely requires further Governmental sanction. The whole argument hinges on the allegation that there has been a 'material alteration' in the original scheme. But there is no pleading to that effect. After all, whether there has been a 'material alteration' to a scheme or not is a question of fact. If this had been pleaded, the respondents may have shown that there was 'no alteration' or 'no material alteration'. They never had that opportunity. In fact, I myself have looked into the original scheme. In that scheme, there is no mention at all of the source of supply of electrical energy. Therefore, it can be well argued that the provision for the erection of a transmission line from the source of supply to the point cf supply, is not a variation if the scheme at all, because the original scheme makes no provision for it. At best, it is a variation in the cost of the scheme. It will be remembered that the Municipality expressly brought this to the attention of the Government and were told that no sane- . ticn was necessary because the extra cost did not exceed 10 per cent of ths sanctioned estimate. In my opinion, the petitioner is not entitled to agitate the ground that there has been a 'material alteration' in ths original sclieme. That being so, the Municipality did what was required under ths rules and nothing has been done in violation of the law.
12. For the reasons aforesaid 1 am of the opinion that even on the merits the petitioner has not maiie out a case, and that the application should fail and be dismissed. The Rule is discharged. Interim orders, if any, are vacated. Thsre will be no order as to costs. I direct that copies of the notification in respect of the original scheme dated 4th August, 1960 and a copy of the letter of the Governmant written by the Special Officer and Deputy Secretary to the Government of West Bengal dated 24th April, 1961 which were looked into by me and the parties should be filed as of record.