# WESTERN U.P. ELECTRIC POWER AND SUPPLY CO. LTD v. STATE OF U.P. & ORS

- **Citation:** [1968] 3 S.C.R. 312
- **Court:** Supreme Court of India
- **Decided:** 1968-02-23
- **Case number:** Writ Petition No. 151 of 1967
- **Bench:** K. N. Wanchoo, S.M. S1Kr1, J.M. Shelat, V. Bhargava, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/western-u-p-electric-power-and-supply-co-ltd-v-state-of-u-p-ors-4378
- **Pages:** 10

## Headnote

Indian Electricity Act (9 of 1910), s. 3(2)(e)-Board
supp/yiog
·energy to consu,ner at lower rate than to licensee whether discriniinatory-Notification directing supply to consunter, req~irements.
The petitioner company a licensee was supplying electrical energy to
the 3rd respondent. By the Electric Supply Act 1948 the Electricity Board
was consti•uted and by Indian Electricity (U.P.) Amendment Act, 1961,
the disability of the Board to supply directly electrical energy to consumers
such as the 3rd respondent was removed.
The Sta1e Government issued
a notification directing the Board to directly supply energy to the 3rd respondent. The rates chargeable by the Board for energy supplied to licensees were higher than the rates the direct consumers. The 3rd respondent
terminated the ri.gn:cment with the petitioner company.
The petitioner
~mpany filed a pe:ition under Art. 32 of the ~onstitution.
HELD : (Per Full Court) : The notification could not be sustained as
a valid notification as it was discriminato'ry.
If the Board were to supply
energy directly to the 3rd respondent it had to do so at rates lower than
the rates at which electricity was supplied by it to the petitioner company.
'The petitioner-company being thus charged at higher rates must as a distnbutor charge higher rates from its other consumers with the result that
the 3rd respondent would get energy at substantially lower rates than other
consumers including other industrial establishments in the area. The noti·
fication thus resulted in discrimination between the 3rd respondent on the
one hand the other consumers on the other as also between the 3rd res·
pondent and the petitioner company. [319 B-DJ
(Per Wanchoo C.J., Sikri, Shelat and Vaidialingam, JJ.). The Board
·could not have. distributed energy to the consumers though it was a licensee
under 1910 Act unless (a) there was a scheme dr (b) that it was authorised
in public interest under the amended s. 3(2)(e). Nei•her of these two
·conditions having been fulfilled the notification and the direction contained
therein to the Board to supply energy to the 3rd respondent were in
breach of the petitioner-company's rights under its licences and the require ..
ments of the amended s. 3(2)(a). [318 HJ
The allegation that the 3rd respondent suffered in
production and
looses as a result of short or .defective supply by the petitioner-company
was not borne out by the reeded in this case. If there was any justification
for the allegation now made by the respondents it is inconceivable that for
all these years the 3rd respondent would not have made any complaint for
such defective supply either to the Board or to the State GovernmenL
(Per Bhargava, J.) The notification cannot
be
held
to be
invalid on the ground that it was issued in breach of the amended s. 3 ( e)
of the Act.
If the State Government was competent under the original s. 3(2)(e)
of the Act of 1910 to grant a licence to any person for supply of electricity
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WEST U.P. ELEC. CO. v. U.P. STATE (She/at, J.)
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in the areas covered by the licences issued to the petitioner-company, it
cannot be seen why a similar result could not 00 validly brought about
by legislation by the appropriate~ legislatures creating a statutory licensee
for purposes of the Act of 1910. Consequently the power granted to the
Electricity Board by the notification to supply electricity to a consume'r in
the area covered by one of the licences of the petitioner-company could
not be held to 1>~ in violation of the conditions of the licence.
In view of the langua~ of the provisions contained in the amended
3(2)(e.) of the Act of 1910, it was not competent for this Court in this
writ petition. on the material available, to declare that the notification \Vas
invalid for the reason that the direction contained therein was not ll,lade
by· the State Government in public interest. As long as the State Go\'ernment based its order on an opinion formed on relevant material, it was
not

## Text

WESTERN U.P. ELECTRIC POWER AND SUPPLY CO. LTD.
A
v.
STATE OF U.P. & ORS.
February 23, 1968
[K. N. WANCHOO, C.J., S.M. S1KR1, J.M. SHELAT, V. BHARGAVA
AND C. A. VAIDIALINGAM, JJ.)
Indian Electricity Act (9 of 1910), s. 3(2)(e)-Board
supp/yiog
·energy to consu,ner at lower rate than to licensee whether discriniinatory-Notification directing supply to consunter, req~irements.
The petitioner company a licensee was supplying electrical energy to
the 3rd respondent. By the Electric Supply Act 1948 the Electricity Board
was consti•uted and by Indian Electricity (U.P.) Amendment Act, 1961,
the disability of the Board to supply directly electrical energy to consumers
such as the 3rd respondent was removed.
The Sta1e Government issued
a notification directing the Board to directly supply energy to the 3rd respondent. The rates chargeable by the Board for energy supplied to licensees were higher than the rates the direct consumers. The 3rd respondent
terminated the ri.gn:cment with the petitioner company.
The petitioner
~mpany filed a pe:ition under Art. 32 of the ~onstitution.
HELD : (Per Full Court) : The notification could not be sustained as
a valid notification as it was discriminato'ry.
If the Board were to supply
energy directly to the 3rd respondent it had to do so at rates lower than
the rates at which electricity was supplied by it to the petitioner company.
'The petitioner-company being thus charged at higher rates must as a distnbutor charge higher rates from its other consumers with the result that
the 3rd respondent would get energy at substantially lower rates than other
consumers including other industrial establishments in the area. The noti·
fication thus resulted in discrimination between the 3rd respondent on the
one hand the other consumers on the other as also between the 3rd res·
pondent and the petitioner company. [319 B-DJ
(Per Wanchoo C.J., Sikri, Shelat and Vaidialingam, JJ.). The Board
·could not have. distributed energy to the consumers though it was a licensee
under 1910 Act unless (a) there was a scheme dr (b) that it was authorised
in public interest under the amended s. 3(2)(e). Nei•her of these two
·conditions having been fulfilled the notification and the direction contained
therein to the Board to supply energy to the 3rd respondent were in
breach of the petitioner-company's rights under its licences and the require ..
ments of the amended s. 3(2)(a). [318 HJ
The allegation that the 3rd respondent suffered in
production and
looses as a result of short or .defective supply by the petitioner-company
was not borne out by the reeded in this case. If there was any justification
for the allegation now made by the respondents it is inconceivable that for
all these years the 3rd respondent would not have made any complaint for
such defective supply either to the Board or to the State GovernmenL
(Per Bhargava, J.) The notification cannot
be
held
to be
invalid on the ground that it was issued in breach of the amended s. 3 ( e)
of the Act.
If the State Government was competent under the original s. 3(2)(e)
of the Act of 1910 to grant a licence to any person for supply of electricity
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in the areas covered by the licences issued to the petitioner-company, it
cannot be seen why a similar result could not 00 validly brought about
by legislation by the appropriate~ legislatures creating a statutory licensee
for purposes of the Act of 1910. Consequently the power granted to the
Electricity Board by the notification to supply electricity to a consume'r in
the area covered by one of the licences of the petitioner-company could
not be held to 1>~ in violation of the conditions of the licence.
In view of the langua~ of the provisions contained in the amended
3(2)(e.) of the Act of 1910, it was not competent for this Court in this
writ petition. on the material available, to declare that the notification \Vas
invalid for the reason that the direction contained therein was not ll,lade
by· the State Government in public interest. As long as the State Go\'ernment based its order on an opinion formed on relevant material, it was
not open to the cour~s to examine and take· a diff~rent view on the. ba:sis of
otfier materials. [320 G-321 BJ
ORIGINAL JURISDICTION: Writ Petition No. 151 of 1967.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
M. C. Chagla and Mohan Behari Lal, for the petitioner.
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S. T. Desai and 0 . .P. Rana, for respondent No. 1.
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C. B. Aganvala and 0. P. Rana, for respondent No. 2.
0. P. Rana, for respondent No. 3.
P. M. Mukhi, Bishamber Lal and H, K. Puri, for the intervener.
The Judgment of WANCHOO, C.J., SIKRI, SHELAT and VAIDIALINGAM, JJ. was delivered by SHELAT, J. BHARGAVA, J., delivered a separate opinion.
Shelat, J. On August 17, 1934 the Governor-in-Council of
the then United Provinces, in exercise of powers under s. 3 (1) of
the Indian Electricity Act, IX of 1910 issued three· licences to
Mis. Alopi Parshad & Sons Ltd. for the supply of electrical energy
within the tahsil areas of Firozabad in the district of Agra
Shikohabad in the district of Mainpur and Etawah in the district
of Etawah. The licences inter alia provided that the licensee
would be supplied electrical energy in bulk by the Public Works
Depar·tment, U.P. and the licensee in itS. iiiin should transmit the
same on its own high tenskin mains within the areas of the licences.
The licences also provided that the responsibilty for the maintenance of supply of electrical energy in the licensee's plant shall be
borne entirely by the Public Works Department and thereafter by
the licensee .. In 1937 the licences were assigned by the said M/s.
Alopi Parshad and Sons Ltd. to the petitioner company with the
consent of the Government. The petitioner company has
sin~
then been supplying under the said licences electricity to consumers within the said areas of the licences. It is an admitted
314
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(1968) 3 S.C.R.
position that though the petitioner company had the said licences
A
assigned to it it did not acquire any exclusive or monopolistic
right of supplying electrical energy within the said areas. Clause
(e) of sec. 3(2) of 1910 Act which governed the srud licences
provides that the grant of a licence thereunder shall not in any
way hinder or restrict the grant of a licence to another person
within the same area of supply for a like purpose.
B
The Electricity (Supply) Act, LIV of 1948
(hereinafter
referred to as 1948 Act) by sec. 5(1) enjoins upon the State
Government to constitute a State Electricity Board. Sec. 19(1)
provides that the Boarcl may, subject to the provisions of this Act,
supply electricity to any licensee or person requiring such supPiy
in any area in which a scheme sanctioned under Chapter V is
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in force.
The proviso to Sec. 19 ( 1), however, lays down that
the Board shall not :-
" (b) supply electricity for any purpose to any person, not being a licensee for use in any part of the area
of supply of a licence without the consent of the licensee. unless the maximum demand of the licensee, being
D
a distributing licensee and talang a supply of energy in
bulk is, at the time of the request, less than twice the
maximum demand asked .for by any such person; or the
licensee is unable or unwilling to supply electricity for
such purpose in the said part of such area on reasonable terms and conditions and within a reasonable time."
E
Section 26 provides that
"Subject to the provisions of this 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 this Act shali be deemed to be the
licence of the Board for the purposes of that Act'
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The definition of a licensee in s. 2(6) of 1948 Act, however,
states that it would not include the Board. Though the Board is
not a licensee for the purposes of the 1948 Act the Act being
deemed to be the licence for the Board under Sec. 26 it is a licensee under the 1910 Act. Sec. 26 however is subject to the
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provisions of the Act which means that it is inter alia subject to
the pro\isions of sec. 19. Therefore, in the absence .of a scheme
under Chapter V, the Board, though a licensee llll'dcr the 1910
Act was not competent to supply directly elegtiical energy to
con~umers such as the 3rd respondent. This wajthe position until
1961 when the U.P. legislature to remove this disability of the
Board passed the Indian Electricity (U.P.)
Amendment Act,
XXX 'of 1961. Section 2 of the Amendment Act substituted the
following for cl. (e) of sec. 3(2) of the 1910 Act:
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" ( e) grant of a licence under this Part for any
purpose shall not in any way hinder or restrict-
( i) the grant of licence to another person within the
same area of supply for a like purpose; or
(ii) the supply of energy by the State Government
or the State Electricity Board wihin the same
area, where the State Government deems such
supply necessary in public interest."
It also added after sub-sec. 2, the following sub-sec. 3:
" ( 3) Where the supply of energy in any area of the
State Electricity Board is deemed necessary under subclause (ii) of clause (e) of sub-se.ction (2), the Board
may, subject to any tenns and con4!ltions that may be
laid down by the State Government, supply energy in
that area notwithstanding anything to the contrary contained in this Act or the Electricity SupPly Act, 1948."
Sec. 3 of the Amendment Act also added a new sub-sec. (1-B)
in sec. 28 of the 1910 Act. The new sub-section reads as
under:-
"(1-B). The State Government may notwithstanding that sanction for engaging in the business of supplying energy to the consumer in an area has been given to
any person under sub-section ( 1), whether before or
after coming into force of the Indian Electricity (U.P.
SanshodhanJ Adhiniyam, 1961, give direct supply, or
authorise the State Electricity Board to give direct supply, in the same area."
This sub-section has no application to the licensees for, it empowers the State Government either to supply directly or authorise the Board to directly supply energy even in an area for which
it has given sanction to a person other than a licensee to engage
in the business of supplying energy to the public in such area.
A perusal of these provisions makes it clear that the Board
can directly supply electricity to the consumers· and the State
Government also can auhorise the Board to do ~o provided the
State Government deems it necessary in public interest that it
should be so doue. The condition precedent for the direct supply
by the Board to the consumers in the area where a licence has
been granted to a licensee is that such supply by the Board must ·
be deemed necessary by the State Government in public interest.
In pursuance of the powers under secs. 46 and 49 of the
1948 Act, the Board by a notification dated April 24, 1962 fixed
the rates and tariffs for electrical energy for the Ganga-Sarda
316
SUPREME COURT REPORTS
(1968] 3 S.C.R.
Grid. These were to .apply to both the licensees obtaining bulk
supply from the Board and to consumers to whom electrical energy
was being supplied direct by the Board in the area covered by
the said Grid. According to these rates, consumers to whom electrical energy was being supplied direct by the Board would pay
a demand charge at the rate of Rs. 8 /- per KV A and on energy
charge at the rate of 4.5nP per KWH for the first 170 KWH per
KVA, at the rate of 3.5nP for the next 170 KWH per KVA and
at ·ihe rate of 3.0 nP per KWH for the remaining KV A consumed
during the month. For the licensees, the rates were Rs. 12.75
per KVA for the demand charge for the first 500 KVA, Rs. 10
per KVA for the next 1500 KVA and Rs. 8.50 per KVA for
above 2000 KVA of the chargeable demand during the month.
For energy charge, the rates were 5 nP per KWH for the first 170
KWH per KVA, 4nP per KWH for the next 170 KWH per KVA
and 3nP per KWH for the remaining KWH per KVA of chargeable demand· consumed during the month. The rates chargeable
from licensees were thus higher than those applicable to the consumers both in respect of demand and energy charges even though
licensees would be larger customers who in the normal course of
business would be charged lower rates !han the consumers. The
notification is not under challenge before us and therefore it
is not necessary for. us to consider its validity.
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As the Board was not yet authorised by the State Government
to supply elecricity directly to the consumers within the areas of
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the petitioner company's licences the 3rd respondent entered into
an agreement in 1964 for a period of 3 years under which the
petitioner company was to supply electricity to it. On September
21, 1966 the State Government issued a notification which stated
that the Governor deemed it necessary in public interest that the
State should supply energy to the 3rd respondent and in exercise
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of the power under sec. 3(2){e) of the 1910 Act as amended
by Act XXX of 1961 directed the Board to give direct supply of
energy lo the 3rd respondent on the same terms and conditions on
which the Board was supplying energy to other consumers. Thereupon the 3rd respondent by its notice dated January 19, 1967
terminated the said agreement. It seems that the Board was still
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not ready to supply energy direct to the 3rd respondent and therefore on April 18, 1967, only· one day before the said agreement
would have ended, the 3rd respondent withdrew the said notice.
On June 23 1967, the 3rd respondent, however, gave a fresh
notice tem1inating the said agreement as from September .. 23,
1967. The result of the notification dated September 21, 1966
was two-fold : (1) .tha• notwithstanding the subsistance of the
petitioner company's licences and its right t~ereunder to supply
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energy .to consumers within the areas of its ltcences, the Board
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was directed to supply energy to the 3rd respondent and (2)
that the Board was directed to supply energy· to the 3rd respondent at rates lower than the rate charged by the Board from
the petitioner company as the licensee.
Mr. Chagla app~aring for the petitioner company raised the
following three conten'.ions :
(I ) that the amended sec. 3 ( 2) ( e) was invalid on the ground
that it amounted to acquisition of the petitioner company's
property and as no compensation hl\s been provided for such
acquisition cl. (e) of s. 3 (2) was in violation of Art. 31 (2) of
the Constitution;
(2) that the notification dated September 21,
1966 was
ultra vi res sec. 3 ( 2 )( e) as the direction by the State Government
to the Board to supply electricity directly to the 3rd respondent
was not founded on public interest; and
( 3) that the said direction ·to supply electricity at rates chargeable from the consumers as against the rates chargeable to the
licensees was discriminatory.
The respondents, on the other hand, contended that the 3rd
respondent was a concern in which the Government has an
interest to the extent of 51 % of its share capital, that therefore
it was almost a public utility concern, that supply by the petitioner
company to the 3rd respondent was found to be defective resulting in lay off of labour on several occasions and consequent loss
in production and that therefore the Government was justified in
public interest to issue the said notification. In support of these
allegations the respondents filed an annexure to their
couriteraffidavit showing low voltage and high tension trippings during
the months of April, May and June 1966. It was alleged that
owing to . defective and short supply by the petitioner company
there were high tens'on trippings on numerous occasions resulting
in low voltage, the consequence Whereof was that the 3rd respond.erit was obliged to stop the working of the jllil!s sometimes for
several hours. The pe!itioner company's case, however, was that
these allegations were an afterthought and that the real object in
issuing the notification dated September ·21, 1966 was to subvert
the petitioner company's rights under .the said licences.
We are inclined to think that there is considerable force in the
contention of the petitioner company. Though the allegation was
that supply of energy by the petitioner company to the 3rd respondent suffered from shortage and other defects the· 3rd respondent does not seem to have at any time made any complaint about
such shortage or defects either to the petitioner company or to the
Board or to the ·state Government. Similarly, the Board also does
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SUPIUIMB COURT llEPOB.TS
(1968] 3 S.c.R.
not seem to have at any time complained to the petitioner comp11Dy
about such defective supply. Even when the petitioner company,
after the said notification was issued, mad_e a representation to
the State Government to reconsider its decision the Government
did not, while rejecting it, rely upon the fact that the petitioner
company was not in a position to give full and proper supply ol'
energy to the 3rd respondent or that supply by it was, as now
alleged, short or defective. It is an undisputed fact that the petitioner company has been throughout all these years supplying
high tension energy to the 3rd responaent and the 3rd respondent
has been converting such high tension energy into low tension
energy through its own transformers.
The aforesaid annexure
shows that though the high te11Sion trippings were only for a few
minutes except on three or four occasions low voltage was for
several hours. In some cases though there was no tripping at all
. there was low voltage for as long as sixteen hours. It is clear,
therefore, that the petitioner company had no difficulty in maintaining supply of high tension electrical energy to the 3rd respondent and there must have been some defect in the stepping
down system of the 3rd respondent resulting in low voltage. It
is impossible thus to find from the annexure that the petitioner
company was guilty in any manner of shortage or defective supply of high tension energy to the 3rd respondent. The allegation
therefore that the 3rd respondent suffered in production and
losses as a result of shbrt or defective supply by the petitioner
company is not borne out by the record in this case. If there was
any justification for the alJegation now made by the respondents it
is inconceivable that for alJ these years the 3rd respondent would
not have made any complaint for such defective supply either to
the Board or to the State Government.
It is certain that but for the amendment of sec. 3 (2)(e) of
1910 Act, the Board, though a licensee under that Act, could
not have supplied energy direc'.ly to the 3rd respondent in the
absence of a scheme under sec. 19 of
1948 Act. Under the
proviso to that section the Board would not have been entitled to
supply energy for any purpose to any person not being a licensee
for use in any part of the area of supply of a licensee without the
consent of such licensee. It is true that under its licences the
petitioner company was not conferred monopolistic rights to supply
energy to the consumers and the Government could have granted
another licence to another licensee. But fhe Government has not
granted such licence to any other person. But it was said that
the Board was another such licensee. As already stated the Board
could not have distributed energy to the consumers though it is
a licensee under-1910 Act unless (a) there was a scheme or (b)
that it was authorised in public interest under the amended sec. 3
(2 )( e). Neither of these two conditions having been fulfilled it
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is clear that the notification of September 21, 1966 and. the direction contained therein to the Board to supply energy to the 3rd
respondent were in breach of the petitioner company's rights
under its licences and the requirements of the amended sec. 3
(2)(e).
·
Apart from its being in breach of the amended sec. 3(2)(e)
and the petitioner company's rights under its licences, the notification and the Government's direct on to the Board therein results
in clear discrimination.
If ihe Board were to supply energv
directly to the 3rd respondent it has to do so at rates lower than
the raies at which electricity is supplied by it to the petitioner company. The petitioner company being thus charged at higher rates
must as a distributor charge hlgher rates from its
other consumers with the result that ihe 3rd respondent would get energy
at substantially tower rates than other consumers including other
industrial establishments in the area. The notification thus results
in discrimination between the 3rd respondent on the one hand
and the other consumers on the other as also between the 3rd
respondent and the petitioner company.
It follows therefore that the notification of September 21,
1966 cannot be sustained as a valid notification as 1t is discriminatory and is also in breach of the amended sec. 3 ( 2 )( e) of I 910
Act. In that view the Board is not entitled to supply direc'ly
electricity to the 3rd respondent as the direcfon contained in the
said notification which is the only authority under which it could
so supply is invalid in law. In this view, it is not neces,ary for
us •o decide the question whether the amended sec. 3(2)(e)
amounts to acquisition and whether such acquisition is in violation of Art. 31 of the Constitu'ion. The said notification being
thus invalid respondents 1 and 2 are directeu not to supply elec-
·trical energy d'rectly to the 3rd rcsparicent.
The respondents
will pay to the petitioner company the costs of this petition.
Bhargava, J. I agree with my brother She lat J. that the notijicafon of September 21, 1966 cannot be sustained as a valid notifieation because it is discriminatory and consequently I concur in
the order proposed by him. I am, however, not prepared to hold
that that notification is also invalid on the other two grounds, viz.,
that 'be notification and the directions contained therein to
he
Electricity Board to supply energy to the third respondent were in
breach of the pe'itioner Company's rights under its licence and of
the requirements of the amended section 3(a)(e). I may briefly
indicate the reasons for my view.
It is admitted on all hands that under its licences, the petitioner
Company was •not conferred monopolistic rights to supply energy
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SUPREME COURT REPORTS
(1968] 3 S.C.R.
to the consumers in the area covered by the licences and the
Government could have granted another licence to anoth_er
licensee to supply energy in the same areas without violating any
provision of the Electricity Act of 1910 or of the conditions on
which licences were granted to the pe'.itioner Company.
It is
true that the Government has not granted any such licences to
any other person but, in my opinion the effect \>f the subsequent
legislation is to bring into existence another statu'.ory Jicencee,
viz., the Electricity Board and any directions p~rmitting the Electricity Board to supply electricity in the areas covered by the
petitioner Company's licences cannot be held to be in violation of
the conditions of those licences. By the Electric Supply Act
1948, the Board was constituted a bcensee for purposes of the
Electricity Act of 1910, though section 26, which brought about
this iesult, provided that in that capacity, the Board was subject
to other provisions of the Electric Supply Act 1948. One such
provision ls co'!tained ins. 19(1) of the Act of 1948. The U.P.
El.ectricity Amendment Act 1961, however, fotroduced provisions in the Act of 19 JO the result of which was that the Board,
in acting as a licensee under .'the Act of 1910, was no longer
subject to the limitation laid down in s. 19 ( 1 ) of the Act of
1948. It has not been contended that either the Supply Act of
1948 or 'the U.P. Electricity Amendment Act of 1961 was not
competently enacted by the appropriate legislature.
The. Supply
Act of 1948 was no doubt passed by the Central Legislature in
respect of a concurrent subject but the U.P. Electricity Am~nd
ment Act of 1961 was reserved for the assent of the President
and, having received the assent of the President, the provisions
of that Act would prevail to the extent to which they may be
inconsistent with the Central Act of 1948.
The result of this
leg'slation was that the Electricity Board became a licensee under
the Electricity Act of 1910 and was no longer subject to the
Iimi'ation laid down in s. · 19 ( 1) of the Electricity Supply Act of
1948. The only-limitation after the enactment of the U.P. Electricity Amendment Act 1961 that remained was that the Board
could sqppTy electricity only after the State Government issued
a valid notification under clause ( e) of section 3 ( 2) of the Act
of 1910. If the State Government was competent under the original section 3(2) (e) of the Act of 1910 to grant a licence to
any person for supply of el~ctricity in the areas covered by the
licences issued to the petitioner Company, I do not see why a
similar result could not be validly brought about by. legislation
by the appropriate legislatures creating a statutory ltcensee for
purpos!IS of the Act of 1910. Consequently, the power granted
to the Electrici!)i Board by the notification of September 21, 1966
to supp~y electricity to a .c.onsumer in the area covered by one
of the ltcences of the petitioner Company cannot be held to be
in violation of the conditions of the licence.
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WEST U.P. ELEC. co. v. U.P. STATE (Bhargava, J.)
321
I further considered that, in view of the language of the provisions contained iii the amended section 3 (2) ( e) of the Act of·
1910, i~ is not competent for this Court in this writ petition, on
the material available, to declare that the notification of SeptembCr 21, 1966 is invalid because the direction contained therein.
was not made by the State Government in public interest. The
B power under the amended section 3 ( 2) ( e) is to be exercised
when Government deems it necessary in public interest.
The
notification, on the face of it, shows that the State Government
did apply its mind before issuing that notification and form the
opinion ·that in this particular case it was necessary· in public
interest that the Board should be directed to supply electricity
c to respondent No: 3 i°' the area c.overed by one of the licences
of the petitioner Company.
The opinion was formed by the
State Government on material which I do not think can be said
to be totally irrelevant for the purpose of forming such opinion.
As Jong as the. State Government based its order on an opinion
formed on relevant material, it is not open to the courts to exaD
E
mine and take a different view on the basis of other materilil such
as want of coinplaints by respondent No. 3 to the Government
that the supply of energy by the petitioner Company was not
satisfactory. It is not for courts to sit in judgment over the view
of the
State
Government
which
the State Government
is required to form in order to make an order under the amended
section 3(2) (e). Consequently, I cannot hold_ that the notification of September 21, 1966 was invalid on the ground that it
was issued in breach of the amended section 3 (2) ( e) of the
Act of 1910.
Y.P.
Petition allO}Yed.