9911796707
TMI Blog1962 (11) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... ged dispute between them and the Board relating to the revision of rates payable by them for electric energy supplied by the appellant or its predecessor The provisions of two Acts, the Indian Electricity Act, 1910 (IX of 1910) and the Electricity (Supply) Act, 1948 (LIV of 1948), have to be considered in these appeals, and it will be convenient to cite the Indian- Electricity Act, 1910, as the 1910 Act and the Electricity (Supply) Act, 1948, as the 1948 Act. We proceed first to state the facts which have led to these four appeals. The 1910 Act and the 1948 Act were extended to the State of Mysore on April 1, 1951, by the Part B States (Laws) Act, 1951 (III of 1951). But the sections of the two Acts did not come into force in the State of Mysore all at once. Some sections of the 1948 Act came into force at once, and some came into force on later dates. It is sufficient for our purpose to know that s. 76 of the 1948 Act came into force in Mysore on December 30, 1956; and s. 5 thereof came into force on September 30, 1957. The Board was constituted under s. 5 by a Government notification dated September 27, 1957, to come into effect from September 30, 1957. Prior to the constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t point and held that the Government of Mysore 'was' legally competent to revise the rates for the supply of electric energy. The second point arising out of s. 76 of the 1948 Act the High Court did not decide. It said that it expressed no opinion as to 'whether or not the contention of the textile mills that the dispute was covered by s. 76 of the 1948 Act and should, be determined by arbitration was sound. The High Court expressed the view that question would have to be determined if and when the textile mills wanted to enforce their rights under the procedure laid down under the Arbitration Act, 1940 (X of 1940). On the finding that the Government of Mysore was legally, competent to revise the rates, the four writ petitions were ;dismissed on January 29, 1958. By March 31, 1958, the four textile mills were, in heavy: arrears with regard to the payment of the increased rates for the supply of electric energy to them, though they had paid in full according to ,the old rates. After the constitution of the Board in September, 1957, the Board made repeated demands on the basis of the increased rates and asked the textile mills; to clear all arrears due by them according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectric energy and on the re-commendations of this Committee the rates were revised a third time. But these last revised rates came into effect from July 1, 1959, when presumably the revision petitions in the High Court were pending. Before we embark on a discussion of the principal question involved in these appeals, it is perhaps necessary to say a few words about the interrelation of the two Acts, the 1910 Act and the 1948 Act. Section 70 of the 1948 Act indicates that relation. It states inter alia that no provision of the 1910 Act or any rules made thereunder shall have any effect so far as it is inconsistent with any of the provisions of the 1948 Act; where, however, the provisions of the two Acts are not inconsistent, the provisions of the 1948 Act shall be in addition to, and not in derogation of, the 1910 Act. It would, therefore, be necessary for us to refer to the relevant provisions of the two Acts on two points which bear upon the principal question mooted before us. These two points are-(a) what are the powers of the Board or its predecessor Government to revise the rates for the supply of electric energy and can a dispute be raised by the textile mills with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 'licensee' was given an ex-tended meaning to take in not merely a licensee licensed under Part II of the 1910 Act but also a person who had obtained sanction under s. 28 of the 1910 Act. The expression did not, however, include' the State Electricity Board which was constituted for the first time under the 1948 Act. Next, the 1948 Act brought into existence two important authorities, one called the Central Electricity Authority under s. 3 of the Act and the other the State Electricity Board constituted under s. 5 of the Act. Section 26 of the 1 48 Act, to which a detailed reference will be made later, lays down that subject 1948 Act, the Board shall, in respect of State, have all the powers and obligation licensee under the 1910 Act, and the 1948 to the provisions of the whole of a Act shall be deemed to be the license of the Board for the purposes of the 1910 Act. There is a proviso which excepts the Board from the obligation of certain provisions of the 1910 Act. Chapter V of the 1948 Act contains provision indicating the nature of the works which the State Electricity Board may undertake and its trading procedure; it includes provisions giving the Board power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the words mother person occurring therein must be read ejusdem generis or noseitur a soocis with 'licensee' and so read, a consumer of electric energy will not be entitled to the benefit of that sub- section; furthermore., sub-s. (2) of s. 76 will not help the respondents, because no provision of the 1948 Act read with the 1910 Act requires to be referred to arbitration a dispute of the nature which is alleged to have arisen in the present case between the Government or the Board on one side and the textile mills on the other. We shall now deal with these two arguments in the order in which we have stated them. First, as to the argument based, on the principle of res judicata. We may first refer to the pleadings in the writ petitions. In paras, 7 and 8 of the affidavits which the textile mills filed in support of the writ petitions, they raised two main contentions : (a) firstly, that the Government of Mysore had 'no right to increase the rates for supply of electrical energy in the manner they have done ; it was stated that there were prior agreements (referring to the agreements of 1945) and the supply had to be made at the same old rates since all the terms a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations of a licensee under the Indian Electricity Act,, 1910, and this Act shall be deemed to be the licensee of the Board for the purposes of that Act. The High Court expressed the view that having regard to the definition clause in s.2(6) which in clear terms stated that the Board was not a licensee within the meaning of the 1948 Act, s. 26 was of no assistance to the textile mills. The High Court decided that the plea of the textile mills based on the provisions of s. 26 read with the Sixth Schedule of the 1948 Act was unsound and could not be accepted. Now, the question is, does this decision operate as res judicata in the matter of a reference to arbitration under s.76 of the 1948 Act when the High Court, in express terms, left that question open ? The learned Attorney General appearing for the appellant has put his argument in the following way. He has submitted that s.26 of the 1948 Act came into force in Mysore on September 30, 1957, and the disputed revision of rates was made by the Government of Mysore in 1956 when s.26 of the 1948 Act was not in force there; but under s.60 of the 1948 Act, all matters and things engaged to be done by, with or for the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petitions that the Board was not a licensee within the meaning of s. 26 of the 1948 Act and was not bound by the principles laid down in the Sixth Schedule thereof. This was the actual decision of the High Court. It is indeed true that what becomes res judicata is the .,matter which is actually decided and not the reason which leads the court to decide the 'matter. We find it difficult, however, to agree with the learned Attorney General that the matter which was actually decided on the writ. petitions necessarily embraced or included the question of the right of the textile mills to call for an arbitration under s. 76 of the 1948 Act. The right of the State Government or of the Board to revise the rates, and the right, if any, of the textile mills to raise a dispute as to the revised rates, are two different matters and the decision on one cannot operate as res judicata with regard to the other. As to the right of the textile mills to call for an arbitration, the High Court, in express terms, left that matter open. While we do not agree with the learned Attorney General that these cases can be decided on the narrow ground of res judicata, we do think that a much larger q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 76 thereof would not be attracted thereto. Learned counsel for the respondents has sought to meet this difficulty 'in the following way. He has first referred to s. 60 of the 1948 Act. It :is perhaps necessary to quote sub-s. (1) of that section here. 60 (1). All debts and obligations incurred, all contracts entered into and all matters and things engaged to be done by, with or for the State Government for any of the purposes o f this Act before the first constitution of the Board shall be deemed to have been incurred,, entered into or engaged to be done by, with or for the Board; and all suits or other legal proceedings instituted or which might but Tor the issue of the notification under Subsection (4) of section I have been instituted by or against the State Government may be continued or instituted by or against the Board. The argument is that the revision of rates made by the State Government in 1956, looked at either as a matter of contract between the parties or as something done by the State Government in exercise of its powers to fix such rates as it thought fit, shall be deemed under sub-s. (1) of s. 60 to have been done by the Board, and if at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no application in 1956, and we are unable to see how it can be said that any dispute as to the revision of rates made by the State Government in 1956 was a question which arose under the 1948 Act. The learned Attorney General has indeed accepted the position that the Board is the successor-in-interest of the State Government and the supply of electricity is one of the purposes of the 1948 Act. That does not, however, mean that the revision of rates in 1956 and a dispute raised as to such revision, became a question under the 1948 Act by reason of the demand made by the Board of the arrears due in respect of the revised rate. The true nature of the question remained what it was in 1956, namely, the right of the State Government to revise the rates, a right which has no reference to the 1948 Act. Furthermore, we are unable to accept the argument advanced on behalf of the respondents that the expression Subject to the provisions of this Act occurring in s. 49 attracts s. 76. Section 49 seems to give the Board a right to supply electricity to any person not being a licensee upon such terms and conditions s the Board may from time to time fix having regard to the nature and geogr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions to be determined by arbitration. In the910 Act, the main section dealing with arbitration s. 52 which was in these terms at the relevant time. Where any matter is, by or under this Art, directed to be determined by arbitration, the matter shall, unless it is otherwise expressly provided in the license of a licensee, be determined by such person or persons as the State Government may nominate in that behalf on the application of either party; but in all other respects the arbitration shall be subject to the provisions of the Arbitration Act, 1940. xx xx xx xx XX. The section lays down that where any matter is by or under the 1910 Act directed to be determined by arbitration' the matter shall be determined by arbitration in the manner laid down in that section. The scheme is that arbitration will take place only when any matter is by or under the 1910 Act directed to be determined_by arbitration. There are several sections, such as s. 7 A, s. 13(2), s. 14 (3), s. 15 (5), s. 16 (3), s. 19 (2), s. 21 (4), s. 22, ss. 22-A (2) and s. 32 (3) which require certain matters to be determined by arbitration. None of these, however, relate to the rates for the supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 uses words of wide amplitude. It states that all questions arising between the State Government or the Board and a licensee or other person shall be determined by arbitration. We, however, think that it is implicit in the sub-section that the question is one which arises under the 1948 Act. Obviously, it could not have been contemplated that any question arising between the State Government on one side and any person on the other shall be determined by arbitration. If that were the meaning of the sub-section, then all litigation between the State Government on one side and any person on the other will have to be referred to arbitration. We do not think that can be the meaning of the sub-section. When the sub- section states all questions arising between the State Government etc., 'it must mean questions which arise under or have relation to the 1948 Act. A dispute between the Government and a private citizen or a dispute between the Government and its employee, unrelated to the 1948 Act, cannot be subject of an arbitration under this sub-section. If that be the correct interpretation, then the respondents, before they can succeed, must establish that the dispute as to rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his class of persons who are sought to be included by the expression other person occuring after the expression 'licensee'. It is clear from s. 49 of the 1948 Act that 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. A similar power is given to the Board also under ss. 18(c) and 19(1) of the Act. These persons to whom the Board may supply electricity may, in their turn, supply electricity to consumers on such terms and conditions as the Board may lay down. It is clear, therefore, that the 1948 Act contemplates a class of persons (other than licensees) who may get their supply of electricity from the Board and may, in their turn, supply the same to consumers within the meaning of the definition of that word in the 1910 Act. The argument of the learned Attorney General is that it is this class of persons who are contemplated by the expression other person occurring in sub-s. (1) of s. 76. The learned Attorney General has sought to fortify his argument by the further circumstance that s. 76(1) obviously does not contemplate that as between a licensee and a consumer, there can be a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Electricity Authority such accounts, statistics and returns as may be required. All these indicate clearly enough that besides licensees holding a licence under Part II of the 1910 Act and sanction holders holding a sanction under s. 28 of the 1910 Act, there is a third class of persons who may supply electricity for public or private purposes. This third class of persons is subject to control by the State Government, The Central Electricity Authority or the Board. The contention of the, learned Attorney General is that a dispute between this third class of persons on one side and the State Government or Board on the other is the dispute contemplated by the use of the expression other person occurring in sub-s.(1) of s. 76. The learned Attorney General has placed reliance on the decision in Williams v. Golding 1865 (1) L.R.C.P. 69. There the question for consideration was the meaning to be given to the expression 'or other person in the 108th section of the Metropolitan Building Act, 1855 (18th and 19th Vict. c. 122). It was held that the expression 'or other person meant persons ejusdem generis with a district surveyor, that is, persons having an official d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the State Government engages in the business of supplying energy to the public, it shall have all the powers and obligations of a licensee under the 1910 Act. There is a proviso similar to the proviso to s.26 which excludes the State Government from the operation of some of the provisions of the Act. This section is of no materiality for the consideration of the cases before us, for it was inserted in the 1910 Act in 1959. For the reasons given above, we allow these appeals, set aside the orders of the High Court dated August 19, 1960, and restore those of the Additional District judge, Bangalore dated April 17, 1959. The appellant will be entitled to its costs throughout,one hearing fee. HIDAYATULLAH, J.-I agree that this appeal should be allowed. I am of the opinion that this is not the kind of dispute which can come within s. 76 of the Electricity (Supply) Act, 1948. That section provides 76. Arbitration.-(1) All questions arising between the State Government or the Board and a licensee or other person shall be determined by arbitration. I am of opinion that the ejusdem generis rule invoked by the appellant to interpret 'other person' in the section is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Indian Electricity Act, 1910 (9 of 1910) or a person who, having obtained sanction under section 28 of the 1910 Act, engages in the supply of electrical energy. The Electricity (Supply Act, '1948, does not deal with other matters relating to the supply and use of electrical energy which are governed by the earlier Act of 1910. The latter Act deals with the grant of licenses to produce electrical energy,and contains provisions for the supply, transmission and use of electrical energy by licensees and non-licensees and generally with matters connected thereto. Both the Acts are required to be read together but where they differ the later Act prevails. Both the Acts provide for arbitration in disputes. The Act of 1910 provides this by s. 52. which reads 52. Where any matter is, by or under this Act directed to be determined by arbitration, the matter shall, unless it is otherwise expressly provided in the license of a licensee, be- determined by' such person or persons as the State Government may nominate in that behalf on the application of either party; but in all other respects the arbitration shall be subject to the provisions of the Arbitration Act, (1940). Provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use thereof. It regulates the grant of licenses to licensees and confers on the Government the right to control the distribution, supply and consumption of electrical energy. In addition to the licensees the 1910 Act gives power to the State Government (s. 28) to sanction generation, supply, transmission and use of electrical energy by persons other than the licensees. The 1910 Act also contains provisions for supervising the work of licensees and persons given sanction under s. 28 with a view to seeing that they observe the provisions of the Act. The 1910 Act contains a schedule divided to-day into XVI clauses. Formerly, two more clauses which were numbered XI and XI A were also in the schedule bringing the number of clauses to XVIII. -Clauses XI and XI A were omitted by the Indian Electricity (Amendment) Act 1959 (32 of1959). Clauses IX,X, XI, XIA and XII deal with charges for the supply of electrical energy and the fixation of the rates. Under the Electricity (Supply) Act of 1948 the State Electricity Board has all the powers and obligations of a licensee under the Indian Electricity Act, 1910, and under s. 26 of the 1948 Act that Act itself is deemed to be the license of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rney-General seeks to-apply the ejusdem generis rule and argues that the expression 'other person must take its colour from the word immediately preceding i. e., licensee. He. took us through the two: Acts to show who were the persons who could be said to belong to the genus licensee and said that persons generating electricity with the sanction of :the. State Government under s. 28 of the 1910 Act would, be another such class belonging to the same genus. He relied upon the case of William V.' Golding (1), to support his contention that even a single; category 'may' be regarded as a genus to control the amplitude of the general words next following. That case arose under an Act in which the expression. District Surveyor was followed by the words 'other person and the words other person were given a limited meaning on the ejusdem generis principle. The section gave protection to 'persons exercising official duties and was in the nature of a public authorities protection clause and the words 'other person could not be extended to cover a private party not performing official duties. I doubt whether that ruling can be applied to the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
