# A COCHIN STATE POWER AND UGBT CORPORATION LTD v. STATE OF KERALA

- **Citation:** [1965] 3 S.C.R. 187
- **Court:** Supreme Court of India
- **Decided:** 1965-02-25
- **Case number:** CIVIL APPELLATE JURISDICl'ION: Civil Appeal No. 897 of 1963
- **Bench:** K. StmBA RAo, J.C. Shah, R. S. BACHAWA'l
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-cochin-state-power-and-ugbt-corporation-ltd-v-state-of-kerala-3394
- **Pages:** 7

## Headnote

Indian Electricity Act, 1910, s. 6(1)(2) and (4)-Scope of.
The appellant held a licence for the supply of electrical enera
In Kerala which. was granted for a period Of 25 years, and was subject to continuation for ten-year terms in the absence of a notice
0
bv the local authority or State Government of an election to pur-
~liase the undertaking. The first 25-year term of the licence expired
on December 2, 1960, and prior to that, on October 24 and again on
October 29, 1959, the State Electricity Board gave notice to the ap.
pellant under s.6(1) of the Indian Electricity Act. 1910, to purchase
the under taking on the expiry of the licence. On November 20, 1959,
:the State Government also served notice on the appellant of ita
D election to purchase the undertaking on December 2, 1960.
In November 1960, the appellant filed a writ petition in the
High Court seeking orders restraining the State Electricity Board
and thoe respondent State Government from taking an_y action pursuant to the notices given by them. In the course of the hearing of
the P!!tition, the State Electricity Boara waived and abandoned all
i'tS rights Of purchase of the undertaking. The writ petition was
B
thereafter dismissed and it was held that the State Government
was entitled to take further steps under its notice dated November
20, 1959. An appeal against this decision to a Division Bench of the
High Court was dismissed.
In the appeal to the Supreme Court, the appellant contended,
inter alia, that the State Electricity Board having duly elected under
1. 6(1) to purchase the undertaking on the expiry Of the licence, the
F State Government acquired no option of purchase under s. 6(2) of
fue 1910 Act.
HELD: Any option Of purchasing the undertaking on the expiry
of the oeriod of 25 years specified in the licence under s. 6(1) vested
in the State Electricity Board, and as the Board duly elected to purchase the undertaking by the notice served on the appellants, the
6
State Government acquired no right or option of
purchasing the
undertaking under s. 6. fl93 G-Hl
As s. 6 came into force less than eighteen months before Deceinber 2, 1960, it was impossible for the Board to have given notice to
the State Government as required bv s. 6(4) of its intention to exercise the option. On the principle of le:r: non cogit ad impassibilia
s. 6( 4) must therefore be construed as not being applicable in the
B
circumstances of the case, so that the Board could, not be deemed
to have elected not to purchase the undertaking under
s. 6(4).
[193 E-F]
CIVIL APPELLATE JURISDICl'ION: Civil Appeal No. 897
of
1963.
Appeal from the judgment and order dated October 4, 1962
of the Kerala High Court, Ernakulam, in Writ Appeal No. 17 of
1962.
188
SUPREME COURT REPORTS
[1965) 3 S.0 B.
A.V. Viswanatha Sastri, Arun B. Saharaya and Sardar BahaA
dur, for the appellant.
V. P. Gopalan Nambiar, Advocate-General for the State of
Kerala and V. A. Seyid Muhammad, for the respondent.

## Text

187
A COCHIN STATE POWER AND UGBT CORPORATION LTD.
v.
STATE OF KERALA
February 25, 1965
B
(K. StmBA RAo, J.C. SHAH AND R. S. BACHAWA'l', JJ.)
Indian Electricity Act, 1910, s. 6(1)(2) and (4)-Scope of.
The appellant held a licence for the supply of electrical enera
In Kerala which. was granted for a period Of 25 years, and was subject to continuation for ten-year terms in the absence of a notice
0
bv the local authority or State Government of an election to pur-
~liase the undertaking. The first 25-year term of the licence expired
on December 2, 1960, and prior to that, on October 24 and again on
October 29, 1959, the State Electricity Board gave notice to the ap.
pellant under s.6(1) of the Indian Electricity Act. 1910, to purchase
the under taking on the expiry of the licence. On November 20, 1959,
:the State Government also served notice on the appellant of ita
D election to purchase the undertaking on December 2, 1960.
In November 1960, the appellant filed a writ petition in the
High Court seeking orders restraining the State Electricity Board
and thoe respondent State Government from taking an_y action pursuant to the notices given by them. In the course of the hearing of
the P!!tition, the State Electricity Boara waived and abandoned all
i'tS rights Of purchase of the undertaking. The writ petition was
B
thereafter dismissed and it was held that the State Government
was entitled to take further steps under its notice dated November
20, 1959. An appeal against this decision to a Division Bench of the
High Court was dismissed.
In the appeal to the Supreme Court, the appellant contended,
inter alia, that the State Electricity Board having duly elected under
1. 6(1) to purchase the undertaking on the expiry Of the licence, the
F State Government acquired no option of purchase under s. 6(2) of
fue 1910 Act.
HELD: Any option Of purchasing the undertaking on the expiry
of the oeriod of 25 years specified in the licence under s. 6(1) vested
in the State Electricity Board, and as the Board duly elected to purchase the undertaking by the notice served on the appellants, the
6
State Government acquired no right or option of
purchasing the
undertaking under s. 6. fl93 G-Hl
As s. 6 came into force less than eighteen months before Deceinber 2, 1960, it was impossible for the Board to have given notice to
the State Government as required bv s. 6(4) of its intention to exercise the option. On the principle of le:r: non cogit ad impassibilia
s. 6( 4) must therefore be construed as not being applicable in the
B
circumstances of the case, so that the Board could, not be deemed
to have elected not to purchase the undertaking under
s. 6(4).
[193 E-F]
CIVIL APPELLATE JURISDICl'ION: Civil Appeal No. 897
of
1963.
Appeal from the judgment and order dated October 4, 1962
of the Kerala High Court, Ernakulam, in Writ Appeal No. 17 of
1962.
188
SUPREME COURT REPORTS
[1965) 3 S.0 B.
A.V. Viswanatha Sastri, Arun B. Saharaya and Sardar BahaA
dur, for the appellant.
V. P. Gopalan Nambiar, Advocate-General for the State of
Kerala and V. A. Seyid Muhammad, for the respondent.
The Judgment of the Court was delivered by
Bachawat, J. The short question in this appeal is whether the
B
proposed acquisition of the electrical supply undertaking of
the appellant by the State of Kerala in pursuance of the notice
Ex. G, dated November 20, 1959 is authorised by s. 6 of the Indian
Elei:tricity Act, 1910.
The appellant is the holder of a license for the supply of elec- c
trical energy in Ernakulam and other places in Cochin. The license
was originally granted to the managing agents of the appellant
under the Cochin Electricity Regulation III of 1902 then in force
in Cochin and subsequently assigned to the appellant wiih the
permission of the Cochin Government. On the merger of Travancore-Cochin with the Union of India, the Indian Electricity Act, D
1910 was made applicable by the Part-B States Laws Act, 1951
(Act lllof 1951) to the Travancore-Cochin area, and the Cochin
Electricity Regulation stood repealed. The Electricity
(Supply)
Act, 1948 (Act 54 of 1948) was also made applicable to the Travancore-Cochin area by the Part-B Stat~s Laws Act, 1951. On March
31, 1957 the Kerala Electricity Board. was constituted, and by s. 71
E
of Act 54 of 1948, any right and option to purchase the undertaking of the licensee under the Indian Electricity Act, 1910 was
transferred to and vested in the Board. Now, the right or option
to purchase the undertaking of a licensee under s.7(1) of the Indian
Electricity Act, 1910 then in force was exercisable "on the expiration of such period, not exceeding fifty years, and of every such F
subsequent period, not exceeding twenty years as shall be specified in this behalf in the license." Sub-section (4) of s. 7 provided:
"Not less than two years' notice in writing of any election to purchase under this sect;on shall be served upon
the licensee by the local authority or the State Government, as the case may be."
Clause 15(a) of the license held by the appellant provides:
"The option of purchase given by Section 7, sub-section (i) of the Regulation shall first be exercisable on the
G
expiration of 25 years from the commencement of this
B
license and on the
expiration of every subsequent
period of ten years during the continuance of this license."
Section 7(1) of the Indian Electricity Act, 1910 corresponds to
s. 7(i) of the Regulation, that is to say, of the Cochin Electricity.
Regulation. The date of the commencement of the license is
. December 3, 1935. The period of 25 years mentioned .in cl. 15(a)
of the L'cense expired on December 2, 1930. The last date for ·
1'0\VER AND LIGHT CORP. ~. STATE (JlaclllJlllGt, J.)
1~9
A giving the twc;> years' notice of the election to p.urchasc on the ex·
piry of December 2. 1960 required under s. 7 (4) of the Indian
Flectricity Act, 1910 expired on December 2, 1958. On February
11, 1959, the Stat..: Electricity Board served on the appellant a
notice, Ex. B, of its election to purchase the undertaking of the
appellant on the expiry of December 2, 1960, but this notice was
B not being in accordance wtih s. 7(4) was of no legal effect.
By the Indian Electricity (Amendment) Act, 1959 (Act 32 of
\959), s.6 now in force was substituted for the old s.7 of the Indian
Electricity Act. 1910, with effect fr0m Sl)ptember 5, 1959. Section
6 of the Indian Electricity Act, 1910 now in force reads:
c
"6. (I) Where a license has been granted to any person
not being a local authority, the State Electricity Board
shall,--
D
E
F
0
H
(a) in the case of a license
grant~d before the commencement of the Indian Electricity (Amendment) Ac~.
1959, on the expiration of each such period as is specified
in the license: and
Cb) in the case of a liceose granted on or after the commencement of the said Act, on the expiration of such
period n0t excced'ng twenty years and of every such subsequent peried, n0t exceeding ten years, as· shall be
specified in this hehalf in the license;
have the option of purchasing thq undertaking and such
opt'on shall be exercised by the -State Electricity Board
serving upon the licensee a notice in writing of not less
than one year requiring the licensee to sell the undertaking to it at the expiry of the re\evant period referred t6
in this sub-section.
(2) Where a State Electricity Board has not been constituted, or if constituted. does n('ft elect to purchase the
undertaking, the State Government shall have the like
option to be exercised In the like manner of purchasing
the undertaking.
0) Where ne'ther the State Electricity Board nor the
State G.over~ment el~cts to purchase the undertaking, any
local authonty constituted for an area within which the
whole of the area of supply is included shall have the
like option to be exercised in the like manner of purchasing the wderta big.
f4l If the. State Electricity Board intends to exercise
the option of purchasing the undertaking under this
section it shall send an intimation in writing of such intention to the State Government at least eighteen months
before the expiry of the relevant period referred to in >Uh·
section (!) and if no such intimat'on as aforesaid is receiv
L/B(D!~~CI-14
'
190
SUl'BEME CQURT REl'OllTa
(1960 J 3 8.0.ij.
ed by the State Government the State Electricity Board
shall be deemed to have elected not to purchase the un.
dcrtaking,
(5) If the Sj;ate Government intends to exercise the ·
option of purchasing the undertaking under this section,
it shall send an intimation in writing of such intention
to the local authority, if any, referred to in sub-section
(3) at least fifteen months before the expiry of the relevant period referred to in sub-section (I) and if no such
intimation as aforesaid is received by the local authority,
the State Government shall be deemed to have elected
not to purchase the undertaking,
(6) Where a notice exercising the option of purchasing
the undertaking has been served upon the licensee under
this sect;on, the licensee shall deliver the undertaking to
the State Electricity Board, the State Government or the
B
Cl
local authority, as the case may be, on the expiration. of
the relevant period referred to in sub-section (I) pending
D
the determination and payment of the purchase price.
(7) Where an undertaking is purchased under this sec·
tion, the purchaser shall pay to the licensee the purchase
price determined in accordance with the provisions of
sub-section (4) of section 7A."
E
On October 24, 1959,'llthe State Electricity Board served upon
the appellant a notice Ex. D, of its election to purchase the undertaking on the expiry of December 2, 1960. On October 29, 1959,
the State Electrlcity Board served upon the appellant another
notice, Ex. E, of its election. On November 20, 1959, the State
Government served upon the appellant a notice, Ex. G, of its elecF
tion to purchase the undertaking on the expiry of December 2,
l960. On November 14, 1960, the appellant filed a wrlt petition
in the High Court of Kerala impleading the State of Kerala and
the Kerala State Electricity Board and asking for the issue of al>'
propriate writs and orders restraining them from taking any acG
tion pursuant to the notices, Exs. B,D,E and G. On December 20,
1961, a learned single Judge of the High Court passed the follow·
ing order:
"In view of the representation made before me by both
the learned Advocate-General appearing for the State, the
1st respondent, and Mr. Krishnaswami Iyengar, learned
H ·
counsel appearing for the Kerala State Electricity· Board,
the second respondent, that for the purpose of this writ
petit'on, t'ie notices issued by the Kerala State Electricity Board, Exs. B. D and E can be ignored, it follows that
neither the 1st respondent nor. the -2nd respondent has
any jurisdiction or power to take any action on the basis
Of Exs. B, D or E. In view of the fact that I am uphold-
A
B
POWER AND LIGHT CORP. v. STATE (Bachawat, J.)
ing the action of the State Government, who had issued
the notice Ex. G, it follows that the 1st respondent alone
is entitled to take further action under the Act, in pursuance of the notice, Ex. G, issued and sent along with the
covering letter, Ex.Fon 20-11-1959. It follows, subject to
what is stated about Exs. B, D and E, that the writ petition
has to be dismissed. There will be no order as to costs."
191
The effect of this order was that the State Electricity Board waived
and abandoned all its rights of purchase of the undertaking under
the notices, Exs. B, D and E, and neither the Kerala State Electricity Board nor the State of Kerala had any jurisdiction or power
to take any action on the basis of those notices, and save as aforeC said, the writ petition was dismissed, and it was held that the
State Government was entitled to take further action under its
notice, Ex. G. Aggrieved by this order, the appellant filed an appeal in the Kerala High Court impleading the State Government
only as the party respondent. The State Electricity Board did not
file any appeal from the order of the learned single Judge. By its
D
judgment dated October 4, 1962, a Division Bench of the High
Court dismissed the appeal. In paragraph 15 of its judgment, the
Bench observed :
E
"In its petition the appellant asked for reliefs both
against the State Government and the State Electricity
Board. However, in the course of the hearing of the petition, the Board gave up its claims under Exts. B. D and
E, and only the claim of the State Government under Ext.
G was canvassed. The petition was, in effect, allowed
against the Board. The Baord has not appealed and is
not a party to the present appeal; and its notices may
therefore be ignored except to the extent that they may
affect the rights of the State Government."
The appellant now appeals to this Court under a certificate granted by the High Court under Arts. 133(l)(a) and 133(l)(c) of the
Constitution.
On behalf of the appellant, Mr. Vishwanath Sastry contended
G that ([) as the two years' notice in writing of the election to purchase the undertaking on the expiry of December, 2, 1960 was
not served on the appellant as required by the old s. 7(4) of the
Indian Electricity Act, 1910, the appellant acquired a vested right
to ho.Id the license. until the expiry of a further period of ten years,
that 1s to say, unll.l December, 2, 1970, and this vested right was
H
not taken away either expressly or by necessary implication by
the new s.6 of the Indian Electricity Act, 1910 introduced by the
amending Act 32 of 1958; (2) the expression "on the expiration of
each such period as is specified in the license" in thi; new s.6(l)(a)
means a period which has not expired and on the expiry of which
the option may be legally exercised, and since in the absence of
the two years' notice required under the old s. 7(4), the option of
purchase on the expiry of December 2, 1960 could not be legally
L/ll!D)2SCI-15
192
SUPREME COURT REPORTS
[1965] 3 s.c.R.
exercised, the new s.6(1) did not confer any option of purchase on A
the expiry of December 2, 1960 and the first option exercisable
under the new s.6(1) would be on the expiry of December 2, 1970;
(3) sub-sections (4) and (5) of the new s.6 show that the period on
the expity of which the option under sub-s(l) of s.6 is exercisable, is
a period which would expire at least 18 mqnths after the coming
into force of the new s.6, that is to say, after September 5, 1959, B
and since the period expiring on December 2, 1960 is not such a
period, the new s.6(1) did not confer any option of purchase on
the expiry of December 2, 1960; and (4) in any event, the State
Electricity Board having duly elected to purchase the undertaking
on the expiry of December 2, 1960, the State Government acquir·
ed no option of purchase under sub-s(2) of s.7 of the Indian Elec· 0
tricity Act, 1'910.
On behalf of the respondent, Mr. V.P. Gopalan
Nambiar,
the Advocate-General of Kerala, contended (!) that the absence
of two years' notice under the old s.7(4) of the Indian Electricity
Act, 1910 did not confer upon the appellant a vested right to hold
D
the license until the expiry of December 2, 1970, and the immunity from compulsory purchase under the old s.7 arising from the
non-service of the requisite two years' notice could be, and, in
fact, was taken away by the new s.6, which required only one
year's notice of intention to purchase the undertaking; (2) assuming that the appellant acquired under the old s. 7 a vested right to
E
hold the lic10.ise until December 2, 1970, sμch vested right was
taken away by the new s.6, which expressly applies to licenses
granted before its commencement, and the period of 25 years is a
period specified in as the license on the expiry of which the option
of purchase was legally exercisable; (3) sub-sections (4) and (5) of
the new s.6 did not cut down the plain me(lning of sub-s(l) of the
P
iCction and the option on the expiry of the period of 25 years was
vested under sub-s(l) of s.6, though this period did not expire 18
months after September 5, 1959; and (4) as the State Electricity
Board did not send to the State Government any intimation in
writing of its intention to exercise the option on the expiry of
December 2, 1960 as required by sub-s(4) of s.6, the Board must
G
be deemed to have elected not to exercise this option, and consequently by sub-s(2) of s.6, the State Govermnent is vested with the
option.
We think that the fourth contention of Mr. Viswanatha
Sastry is sound, and should be accepted.
Assuming, without
deciding, that the option of purchasing the undertaking on the H
expiry of the period of 25 years specified in the license was available under sub-s(l) of s.6, such option vested in the State Electricity Board, and as the Board duly elected to purchase the undertaking, the State Government acquired no right or option of pur·
chasing the undertaking under s.6. On this ground alone, the appeal
chould be allowed, and in this view of the matter, we do not think
it necessary to express any opinion on the other contentions urged
A
0
POWER AND LIGHT CORP. v. oTATE \BachuWJt, J.)
l\)3
before us. As far as the State Electricity Board is concerned, it
has abandoned and waived its option of purchase on the expiry
of 25 years.
Sub-section (!) of s.6 expressly vests in the State Electricity
Board the option of purchase on the expiry of the relevant period
specified in the license. But the State Government claims that
under sub-s(2) of s.6 it is now vested with the option. Now, under
sub-s(2) of s.6, the State Government would be vested with the
option only "where a State Electricity Board has not been constituted, or if constituted, does not elect to purchase the undertaking." It is common case that the State Electricity Board was duly
constituted. But the State Government claims that the State Electricity Board did not elect to purchase the undertaking. For this
purpose, the State Government relies upon the deeming provisions
of sub-s(4) of s.6, and contends that as the Board did not send
to the State Government any intimation h writing of its intention
to exercise the option as required by the sub-section, the Board
must be deemed to have elected not to purchase the undertaking.
D Now, the effect of sub-s(4) read w'th sub-s(2) of s.6 is that on
failure of the Board to give the notice prescribed by sub-s(4), the
dption vested in the Board under sub-s(l) of s.6 was liable to be
divested. Sub-section (4) of s.6 imposed upon the Board the duty
of giving after the coming into force of s.6 a notice in writing of
E
its intention to exercise the option at least 18 months before the
expiry of the relevant period. Section 6 came into force on September 5, 1959, and the relevant period expired on December 3,
1960. In the circumstances, the giving of the requisite notice of 18
months in respect of the option of purchase on the expiry of December 2, 1960, was impossible from the very commencement of
s.6. The performance of this impossible duty must be excused in
F
accordance with the maxim, lex non cogit ad impossibilia (the
law does not compel the doing of impossibilities), and sub-s(4) of
s.6 must be construed as not being applicable to a case where compliance with it is impossible. We must therefore, hold that ;!le
State Electricity Board was not required to give the notice under
sub-s(4) of s.6 in respect of its option of purchase on the expiry of
25 years. It must follow that the Board cannot be deemed to have
elected not to purchase the undertaking under sub-s(4) of s.6. By
the notice served upon the appellant, the Board duly elected to
purchase the undertaking on the expiry of 25 years. Consequently,
the State Government never became vested with the option of
purchasing the undertaking under sub-s(2) of s.6. The State GovH
ernment must, therefore, be restrained from· taking further action
under its notice, Ex. G, dated November 20, 1959.
In the result, the appeal is allowed, and the respondent State
of Kerala is restrained from taking any action unde; the notice,
Ex. G, dated November 20, 1959. The respondent shall pay to the
appellant the costs in this Court. We direct the parties to pay and
bear their own costs in the Courts below.
Appeal allowed.