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TMI Blog1964 (12) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... ona Electric Supply Company on the 15th of May 1961, at about 3 p.m. The prosecution case was that the oil circuit breaker of one of the two incoming feeders burst and affected the supply of electricity, resulting in the cutting of the supply to the city of Poona and its surroundings. As a result of the burst, 9 persons including original accused No. 3, received injuries and 2 of them succumbed to their injuries. The complaint was filed by one Yeshwant Ganjanan Penkar, who was the Electrical Inspector for the city of Poona, on the 12th of June 1962, alleging, firstly, that the company was bound to inform him about the accident within 24 hours of its occurrence and that not having been done, the company and accused No. 2 who was its General Manager, had committed an offence under S. 33 of the Indian Electricity Act, 1910. The other allegation was that in the inquiry which was made after the accident relating to the causes of the accident it had transpired that the accident was due to the fact that the apparatus of receiving electric supply was not maintained in accordance with the standards of Indian Standards Institution. It was also alleged that the company had not changed the oil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to refer to the relevant provisions of the Act and the rules so that the contentions made before me by the learned Counsel on behalf of the petitioners can be properly appreciated. The Indian Electricity Act first came on the statute book in March 1910, but it has undergone many changes since then and one of the changes with which we are concerned in this application was the amendment effected by the amending Act No. 32 of 1959, called the Indian Electricity (Amendment) Act, 1959. By S. 24 of this Act S. 33 was substituted. Before the substitution, sub-section (1) of S. 33, to the extent relevant, was as follows: 33(1). If any accident occurs in connection with the generation, transmission, supply or use of energy . . . . . and the accident results or is likely to have resulted in loss of life or personal injury, such persons shall give notice of the occurrence and of any loss of life or personal injury, actually occurred by the accident, in such form and within such time and to such authority as the State Government may be general or special order direct. (5) Under this section, prior to the amendment, a notice of the accident had to be given to such authority as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Inspector and to such other authorities as the appropriate Government may by general or special order direct. It is evident that after the substitution of the said section, the notice of the occurrence of any such loss or injury actually caused by the accident is required to be given in such form and within such time as may be prescribed . Under S. 2(j) of the Act prescribed means prescribed by rules made under the Act. The notice, therefore, would have to be given in such form and within such time as may be prescribed under the rules framed under the Act. Under the section as it stood prior to the amendment, the notice had to be in such form and within such time and to such authority as directed by the State Government by a general or special order. Similarly, under the amended section, it is provided that the notice in the form and within the time prescribed under the rules must be given to the Electrical Inspector and in addition to such other authorities as the appropriate Government may by general or special order direct. Section 36A of the Act, constitutes a Board called the Central Electricity Board to exercise the powers conferred by S. 37. Section 37 provides for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with the alternative argument as to substantial compliance of the notification, it would be convenient to refer to the two contentions raised on behalf of the defence which, if accepted, will go to the root of the matter and will render the consideration of the other question unnecessary. (9) The first contention of Mr. Nariman, the learned counsel appearing for the petitioners, was that the notification which was issued under section 33(1) prior to its substitution by Act No. 32 of 1959, was not the law actually and factually in existence at the relevant time and therefore the accused could not be convicted for the offence charged against them. Reliance was placed on Art, 20 of the constitution in support of this argument. Article 20, to the extent it is relevant, is as follows; No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, . . . . . . Mr. Nariman says that even assuming that s. 24 of the General clauses Act attracted the notification issued under section 33, before its re-enactment, it cannot be said to be law actually and factually in force. It would be necessary to refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion issued under the Act prior to its re-enactment was not law in fact in force on the material date. Of course, this assumes that section 24 is applicable and there is no express contrary provision showing that the notification is superseded or that it is not inconsistent with the provisions re-enacted. Section 24 itself continues in force a notification which is not inconsistent. The only fiction is that the notification which is so continued in force shall also be deemed to have been made or issued under the provisions re-enacted. (10) Reference was made to the decision of the Supreme Court in W. R. E. D. Co. Ltd. v. State of Madras, [1963]2SCR747 . By an earlier decision the Madras Electricity Supply Undertakings (Acquisition) Act (43 of 1949) was declared ultra vires by the Supreme Court on the ground that the Act was beyond the legislative competence of the Madras Legislature. Thereafter the Madras Electricity Supply Undertakings Acquisition Act (29 of 1954) was passed. Some of its provisions had retrospective operation and in particular section 24 of the Act validated orders made, decisions or directions given, notifications issued, proceedings taken and acts or things d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he law, which was otherwise invalid, factually in existence at the time when the alleged offence was committed. That is why the observations relate to validating legislation which has retrospective effect and which validates ex post facto certain notifications issued under the former Act. In this case the notifications issued under S. 33, as it was prior to its re-enactment, were not validated retrospectively by a subsequent validating legislation. On the contrary, section 24 of the General Clauses Act, provides that such notifications etc., shall continue in force and shall be deemed to have been made or dismissed under the provisions re-enacted. Therefore, simultaneously with the re-enactment of section 33 the notifications issued under the repealed provision continued in force. They would be so continued if it were shown that there was no express provision otherwise or that they were not inconsistent with the provisions re-enacted. (11) Mr. Nariman then invited my attention to the decision of a Division Bench of the Andhra Pradesh High Court in In re, Lingareddi 24. Mr. Justice Bhimasankaram considered the meaning of the expression law in force in Article 20 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence. The result of this is that if at the date of the commission of an act, such commission was not prohibited by a law then in force, no future legislation prohibiting that act with retrospective effect will justify a conviction for such commission. In other words, if an act is not an offence at the date of commission no future law can make it an offence. But how, on the facts of this case the accused can claim benefit of this principle embodied in article 20(1) it is difficult to see. They are being charged under Section 73 and Section 74 of the Mines Act, 1952, for the contravention of some regulations. Were these regulations in force on the alleged date of contravention? Certainly, they were in consequence of the provisions of Section 24 of the General Clauses Act. The fact that these regulations were deemed to be regulations made under the 1952 Act, does not in any way affect the position that they were laws in force on the alleged date of contravention. The argument that as they were regulations under the 1952 Act, in consequence of a deeming provision, they were not laws in force on the alleged date of contravention is entirely misconceived. The Supreme Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e., as prescribed in the rules framed by the Central Electricity Board. This, according to Mr. Nariman, is an express provision and since there is an express provision, the old notification issued under the repealed Section 33(1) cannot be said to have continued in force. Now, it is not possible to accept this argument because, in my view, it does not correctly appreciate the expression unless it is otherwise expressly provided in Section 24 of the General Clauses Act. All that the expression in that section means is that the notification, rules etc., under the repealed Act shall continue in force provided they are not inconsistent with the re-enacted provision, unless there is an express provision in the re-enacted legislation to the effect that they shall not so continue in force. There is not doubt that after the amendment of the Act, by Act No. 32 of 1959 there is no express provision to the effect that the notifications, rules, etc., under the repealed provisions shall not continue in force. The result is that such rules and notifications shall continue in force unless, of course, it is shown that they are inconsistent with the provisions of the re-enacted section. Mr. Narim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad impossibilia aut inutilia'. He argued that if all the particulars are shown to have been intimated to Electrical Inspector, the insistence of a written notice would not be justified because the performance of the condition that it should be a notice in writing would be idle and superfluous. He points out that there was clear evidence to show that the accused had written 24 hours of the occurrence given intimation of all the particulars referred to in the notification of 9-2-1953, to the extent to which it was possible to be done, and the mere fact that the notice was given on the 22nd of May 1961, instead of within 24 hours, would not make any difference since the provision has been substantially complied with. It is a very interesting argument, but in order to appreciate it, it would be convenient to refer to certain facts which have been brought out in the evidence. The accident occurred on the 15th of May 1961. A complaint had been filed by one Penkar, who was at the relevant time the Electrical Inspector. He has given evidence. One Deshpande, who was at the relevant time Assistant Electrical Inspector, has also given evidence. Penkar has stated that he first got the info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n after Pankar left. It would therefore appear that Panker in effect deputed to continue the enquiry on that day. Deshpande also admits that he was left at the Receiving Station for further inquiry and Penkar left for Rajbhavan. He had in fact visited the injured persons within 2 to 4 days in the hospital and had attempted to obtain information from them, but their condition was such that they could not make any statement. He also admits that he was told by Shah. accused No. 2, that information could not be given because his staff members were engrossed with the work of restoring supply and that he would be in a position to give information after a few days. It is very material to refer to the following statements made by Deshpande in his cross-examination:- On the date of accident when I had been to the spot of accident, I was informed that a number of employees were injured. So also I was shown the damaged O. C. B. of incoming feeder No. 2 I was told as to what had happened and how the serious fire had squirted out. I had not got full details or the causes of accident but approximately I find that the cause of accident might be due to O. C. B. not functioning properly under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irement of the notification that the cause of the accident must be intimated was impossible of performance within 24 hours of the accident. so far as the probable cause was concerned, Deshpande himself admits that it had been known to him. The other particulars required to be intimated had also been admittedly known to Deshpande on the day of the accident. Mr. Nariman, therefore, relies on this maxim and on the observation in Maxwell on Interpretation of the Statutes, Eleventh edition, at page 373, which are as follows:- Enactments which impose duties on conditions are, when these are not conditions precedent to the exercise of a jurisdiction, subject to the maxim lex non cogit ad impossibilia aut inutilia. They are understood as dispensing with the performance of what is prescribed when performance of it is idle or impossible. It is non-compliance had arisen out of an excusable mistake, the Courts will sometimes exercise a discretion in extending the time when it does not affect the question of jurisdiction. The notification, to the extent that it requires notice to be given regarding the particulars mentioned therein, must be considered to be an absolute requirement whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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