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TMI Blog1968 (7) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... nce amount was claimed as interest on the amount claimed. That suit was resisted by the defendant on various grounds. The trial court substantially allowed the plaintiff's claim and decreed the suit in a sam of Rs. 44,461/11/9 with interest and proportionate costs. The High Court of Rajasthan accepting the appeal (No. 67 of 1956) of the defendant dismissed the plaintiff's suit. After obtaining a certificate under Art. 133(1) (a) of the Constitution, the plaintiff has filed this appeal. The High Court of Rajasthan dismissed the plaintiff's suit on two grounds namely (1 ) that before filing the suit, no notice as required by s. 233 of the Ajmer .Merwara Municipalities Regulation, 1925 has been given and (2) the notification of the Commissioner imposing the impugned Surcharge is either beyond the scope of the provisions of Bombay Electricity Surcharge Act, 1946 (Bombay Ac't 19 of 1946) (to be hereinafter referred to as the Bombay Act) as extended to Ajmer by the Central Government in pursuance of the powers conferred on it under the Ajmer Merwar (Extension of Laws) Act, 1947 or in the alternative the provisions of the Bombay Act are ultra vires cl. 12 of the .schedule to the Indian E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut below in substitution of the notification issued by him on September 19, 1948. "CHIEF COMMISSIONER'S OFFICE, AJMER. No. 6/5/48-LSG. Dated Ajmer, the 29th March, 1949. To be substituted for the notification bearing the same number and date. Orders by the Chief Commissioner, Ajmer Merwara. NOTIFICATION No. F/8-4-II(CC)-H. Dated Ajmer, the 19th September 1948. In exercise of the powers conferred by sub-sec. (2) of sec. 3 of the Bombay Electricity (Surcharge) Act 1946 (XIX of 1946) as extended to the Ajmer Merwara by the Government of India, Ministry of Home Affairs Notification No. 8/9/48- Judicial dated the 3rd September 1948, and in accordance with the recommendations made by the Electricity Advisory Board constituted by him under sec. 35 of the Indian Electricity Act, 1910, the Chief Commissioner, is pleased to fix for a period of two years from the date of this Notification, the following rates of surcharge on the charges for energy leviable by the Ajmer and Beawar Electric Supply Companies :-- (1 ) For supplies made under standard tariffs: (i) Ajmer Electric Supply Co. Ltd., Ajmer 20% (ii) Beawar Electric Supply Co., Ltd., Beawar 15% (2 ) For supplies made under spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in respect of any act purporting to be done in its or his official capacity, until the expiration of one month next after notice in writing has been, in the case of a Committee, delivered or left at its office, and in the case of an officer or servant, delivered to him or left at his office or place of abode, stating the cause of action and the name and place of abode of the intending plaintiff; and unless the plaint domains a statement that such notice has been so delivered or left: Provided that nothing in this section shall apply to any suit instituted under section 54 of the Specific Relief Act, 1877. (I of 1877)." So far as suits against public officials are concerned this section is an exact reproduction of s. 80, Civil Procedure Code. But s. 80, Civil Procedure Code has two parts namely: (1) Suits against Governments and (2) Suits against public officers in respect of acts purporting to be done by those public officers in their official capacity. So far as suits against Governments are concerned, they cannot be validly instituted without giving a notice as required by s. 80, Civil Procedure Code. But when we come to suits against public officers, s. 80, Civil Procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or its members or office bearer cannot be punished for their failure to pay the amount due to the plaintiff. To put it differently the omission complained does not entail any penal consequence for the public official responsible for it. If every omission is considered as an illegal omission and therefore an 'act' either within the meaning of s. 80, Civil Procedure Code or s. 233 of the Ajrner Merwar Municipalities Regulation then the distinction between the first part of s. 80, Civil Procedure Code and its second part disappears. If that is so, k follows that in every suit against a public officer relating to his public duty, the issuance of a notice is a condition precedent. That in our opinion would be rewriting the section. It is true that in Bhagchand Dagdusa Guirathi and ors. v. Secretary of State for India (1) 54 I.A. 338 the Privy Council laid down that s. 80 should be strictly complied with and is applicable to all forms of action and all kinds of reliefs claimed against the Government. But here in this case we are not concerned with a claim against the Government. Therefore that decision has no application to the facts of the present case. The case which is relevant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordships' opinion, such a suit is not within the gambit of s. 80 and no notice of suit was required." It is possible to read this passage as merely setting out the facts of that particular case and the equitable considerations arising therefrom and not as the ratio of the decision. Even if we consider that passage as one of the reasons given in support of the decision, the strength of the earlier ratio is not weakened. The interpretation placed by us on that decision is the same as that placed by the Calcutta High Court in Debendra Nath Roy v. Official Receiver A.I.R. 1938 Cal. 191. Mr. Sharma read to us several decisions of the various High Courts wherein it has been laid down that a suit brought in respect of breach of contract by a public official is an act within the meaning of s. 80 Civil Procedure Code. Similarly, illegal omissions have been held to be 'acts' under that section. In some of the decisions it was held that the second part of s. 80, Civil Procedure Code applies only to actions on torts committed by public officials, in the discharge of their public functions. There is conflict of judicial opinion on that point. For our present purpose it is not necessary to reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such licensec or sanction-holder, by order notified in the Official Gazette, fix the rate of surcharge. (3) The rate of surcharge fixed under sub-section (2) shall not exceed: (a) 331/2 per centuries in the case of undertakings where diesel oil is used for the generation of energy, (b) 20 per centuries in the case of undertakings where steam is used for the generation of energy. (4) In the order fixing the rate of surcharge under sub-section (2), the Provincial Government may specify such conditions as it may think fit to be observed by the licensee or sanction-holder. (5) Without prejudice to the generality of the power contained in subsection (4), the Provincial Government may require the execution of an undertaking in the prescribed form by the licensec or sanction holder that his profits in excess of the prescribed limits shah be transferred to a Rates Stabilization Reserve for prescribed purposes. (6) The Provincial Government may at any time enhance or reduce by a like order the rate fixed under sub-section (2). Sec. 4 :--Upon the rate of surcharge being fixed by the Provincial Government from time to time in accordance with this Act, it shall not be lawful for the lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained provisions. For taking action on the basis of those sections no assistance is needed from s. 6. Therefore we think the High Court was wrong in opining that the notification issued by the Chief Commissioner levying surcharge on the price of the electrical energy supplied for street lighting was without the authority of law. We shall now examine the contention that the notification issued by the Chief Commissioner on March 29, 1949 is ultra vires the provisions of the Electricity Act. On this aspect the argument on behalf of the respondent proceeded thus: Section 3(f) of that Act provides that the provisions contained in the Schedule shall be deemed to be incorporated with, and to form part of, every licence granted under this Act save in so far as they are expressly added to, varied or excepted by the licence, and shaH, subject to any such additions, variations or exceptions which the State Government is hereby empowered to make, apply to the undertaking authorised by the license: (Proviso is not relevant for our present purpose) Clause 12 of the Schedule as it stood at the relevant time read: "XII. CHARGE FOR SUPPLY FOR PUBLIC LAMPS.-- The price to be charged by the licen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the learned Judges of the High Court that in incorporating cl. 12 of the Schedule, the central legislature intended that under no circumstance the liability of the consumer can be increased beyond what is asked during the continuance of the contract. In our opinion it imposes no fetters on the powers of the provincial legislatures in the matter of hanging the price of the electricity supplied by the licensec for street lighting. For the reasons mentioned above we are unable to agree with the High Court that either the suit is bad because of want of a valid notice under s. 233 of the Ajmer Merwar Municipalities Regulation or that the notification imposing surcharge is invalid for any reason. Under the notification imposing surcharge the plaintiff is not entitled to get any additional sum as regards the pumping of water. Under that notification to the extent it is applicable to this case surcharge is levied only on the price of electrical energy supplied under a contract for street lighting and not in respect of the price of the electrical energy used for pumping water. Under Exh. 21 the plaintiff entered into an agreement to pump water for a fixed consideration. For so doing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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