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TMI Blog1966 (4) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment under S. 57(2)(c) fixing the charges to be made for the supply of electricity from the consumers with effect from 1st February 1952. No time limit was specified in the said order as there was no provision for fixing any time limit under section 57(2)(c), as it stood before its amendment in 1956, hereinafter referred to as 1956 amendment . Under the said order, the company was to charge 0-7-9 per unit for the electric energy supplied for the purposes of lights and fans in the area of supply with minimum installation charges of ₹ 3/- per month. As for energy supplied for motive power, the charge fixed was to charge 0-4-0 per unit with minimum installation charge of ₹ 4-8-0 per month for each installation. It appears that thereafter it was the case of the plaintiffs consumers that in January 1963 a pamphlet was issued on 1st January 1963 intimating the consumers about the intention of the company to increase the rate for the purpose of lights and fans and for the purpose of motive power. It was the case of the plaintiff s that that this pamphlet was withdrawn, while it was the case of the company that it was not implemented in respect of lights and fans but for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that they were unable to agree with the decision of the Bombay High Court in Babulal Chhaganlal v. Chopda Electric Supply Co. Ltd. AIR 1955 Bom 182. Their Lordships had observed that it was clear from Para 1 of Schedule VI of the Supply Act, as it originally stood and as amended, that the adjustment rates might be unilateral and that the licensee had a statutory right to adjust his rates provided he conformed to the requirements of that paragraph viz. The rate charged did not yield a profit exceeding 5 p.c., and the amount of reasonable return. In their Lordships' opinion, the provisions of the Supply Act were too strong to permit the construction, that the maximum prescribed under the Electricity Act of 1910 survived as a fetter on the rights of the licensee under paragraph I of the VIth Schedule. It was further held that if there was any room for any argument of that kind on the terms of Para I of the VI Schedule as originally enacted, the matter was placed beyond possibility of dispute by the 1956 amendment by the use of non obstinate clause as the opening paragraph provided that notwithstanding anything contained in the Indian Electricity Act and the provisions i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding year of account, and from such date the licensee shall comply therewith accordingly and any provisions of such licence or of the Indian Electricity Act, 1910 (IX of 1910), or any other law, agreement or instrument applicable to the licence shall, in relation to the licensee, be void and of no effect in so far as they are inconsistent with the provisions of this section and the said Schedule and Table. (2) Where the provisions of the Sixth Schedule and the Table appended to the Seventh Schedule are under sub-section (1) deemed be incorporated in the licence of any licensee, the following provisions shall have effect in relation to the said licensee, namely - (a) The Board, or where no Board is constituted under this Act the Provincial Government, may, if it satisfied that the licensee has failed to comply with any provision of the Sixth Schedule, and shall when requested so to do by the licensee, constitute a rating committee to examine the licensee's charges for the supply of electricity and to recommend thereon to the Provincial Government. Provided that no rating committee shall be constituted in respect of a licensee within three years from the date on which s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Indian Electricity Act, 1910 (9 of 1910) and the licence granted to him thereunder and of any other law, agreement or instrument applicable to the licensee shall, in relation to the licensee, be void and of no effect in so far as they are inconsistent with the provisions of Section 57A and the said Schedules. Section 57A provides for rating committees as under: (1) Where the provisions of the Sixth Schedule and the Seventh Schedule are under S. 57 deemed to be incorporated in the licence, of any licensee, the following provisions shall have effect in relation to the said licensee, namely:- (a) the Board or where no Board is constituted under this Act, the State Government - (i) may, if satisfied that the licensee has failed to comply with any of the provisions of the Sixth Schedule and (b) shall when so requested by the licensee in writing, constitute a rating committee to examine the licensee's charges for the supply of electricity and to make recommendations in that behalf to the State Government - - - - - - XX XX XX XX XX XX XX XX XX XX (c) a rating committee shall, after giving the licensee a reasonable opportunity of being heard and after ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account. In the case of a licence granted before the Supply Act and from the said date the licensee has to comply with the provisions of the said Schedule and the provisions of the Electricity Act and the licences granted thereunder and of any other law agreement or instrument applicable to the licensee are deemed to be void and of no effect in so far as they are inconsistent with the provisions of S. 57 and the said Schedule or after the 1956 amendment with S. 57A and the said schedule. Similarly, S. 57(c) as it originally stood also provided that after the provisions of VI Schedule were deemed to be incorporated in the license of the licensee the provisions mentioned in the said sub section were to have effect in relation to the said licence. Under S. 57(2)(c) it was further provided that if the rates were fixed by the Government after the report of the rating committee the licencee should forthwith give effect to such order. The same is the provision of the re-enacted section 57A. It is, therefore, clear that even though the licensee has in view of the incorporation of Para I of the VIth Schedule in his licence a right to make unilateral adjustment of the rates in conformation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) to give any retrospective effect to these new provisions nor there is any provision for creating fiction that the orders issued under the old section 57(2)(c) were to be deemed to be or issued under section 57A(d) There is, therefore, prima facie, no inconsistency whatsoever between the two sets of the provisions. The old section 57 would apply to the orders made by the Government fixing the charges under the old section 57(2)(e) while the new section 57A(e) would apply to the orders issued by the State Government fixing the charges under the new section 57(d) and in which cases the Government must specify the time limit which should not exceed three years. It is, therefore, contended by the consumers that the order issued in 1951 under old section 57(2)(c) continues to have legal effect even after the amendment of the said section 57 and its substitution by the new section 57A in view of section 6 of the General Clauses Act, 1897. The company, however, contends that the said section 6 has no application and could not save future operation of the order issued by the Government in 1951 and that in any case, there is a clear intention to the contrary under the provisions of new sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses also unless the new legislation manifested an intention incompatible with or contrary to the provisions of the section and the mere absence of a saving clause was by itself not material. In the case of a simple repeal there was scarcely any room for expression of a contrary opinion. But when repeal was followed by fresh legislation, the provisions of the new Act have to be looked into. The time of enquiry in such cases however would not be whether the new Act expressly kept alive old rights and liabilities but whether it manifested an intention to destroy them. The same principle was reiterated by the Supreme Court in case of Bishambhar Nath Kohli v. State of Uttar Pradesh, AIR 1966 SC 573. At page 578 their Lordships of the Supreme Court observed that such saving provisions are enacted with a view to avoid the possible application of the rule of interpretation that where a statute expired or was repealed, in the absence of a provision to the contrary, it was regarded as having never existed except as to matters and transactions past and closed. In that particular case their Lordships had to consider the effect of section 58(3) of the Administration of Evacuee Property Act, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the old enactment or things done and actions taken under the said enactment would always survive unless a contrary intention was expressed or necessarily implied in the new provision to destroy the same. Such a result can be achieved even by a deeming fiction which brought the new Act into force retrospectively even on the date on which the action was taken or the thing was done under the old enactment. In the present case, however, as I have already pointed out there is no deeming fiction and the provisions of the section 57A are clearly prospective with effect from 30th December 1956 and they are not deemed to have been in force in November 1951 when the State Government had issued the order under the old section 57(2)(c). In the absence of such a deeming provision, the order which was issued by the State Government under the old S. 57(2)(c) when the said enactment was in operation could not be said to have been made under the new section 57A(d) and there would be no question of time limit as under the old enactment there was no provision for any time limit for such order which was for the first time introduced in respect of the order to be made under S. 57A(d) and which could on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saving provision in the case of a temporary statute which was an expiring statute and it would be dead automatically on the expiry of its term. In the context of such a temporary statute it was held that the notional savings provision of section 7 corresponding to S. 6 of the general Clauses Act, would not continue in force, the orders passed under the expiring statute. The decision could have no application to the facts of the present case where I am not concerned with any temporary statute which expires with any notional repeal. It is, therefore, not necessary for me to express any opinion as to the correctness of the said decision in view of the subsequent decisions of the Supreme Court. In State of Uttar Pradesh v. Jagamander Das, AIR 1954 SC 683 at p. 685 the distinction between a repealing statute and an expiring statute was clearly pointed out. In Para 7 it was observed that where a statute was repealed or came to an automatic end by efflux of time, no prosecution for acts done during the continuance of expired Act could be commenced after the date of its repeal or expiry because that would amount to the enforcement of a repealed or a dead Act. Thus rule, however, stood modi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der particular law continued even after the law itself had come to an end. It was held that the obligation to obey an order was not something duly done or suffered, which would not be affected by the repeal. The obligation to obey the order arose from day-to-day and so long as the law was in force that obligation was there. But when the law had come to an end, the obligation also, came to an end. The learned Advocate General strongly relied upon those observations and contended that a continuous obligation of this character as was expected from the present company also came to an end when S. 57(2)(c) under which the order was issued by the Government itself came to an end. The learned Advocate General, however, misses the important distinction between the expiring statute and a repealing statute. The case which arose before the Rajasthan High Court was also one of an expiring statute and that is why it was held that as soon as the law came to an end, the obligation imposed by the law also came to an end. S. 6 was held inapplicable to the case of such an expiring statute. That is why in AIR 1955 SC 84 at p. 87, it was in terms held that the consequences laid down in S. 6 of the Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t applicable to the licensee, if the same contains something inconsistent with the provisions of section 57 or 57A and the said Schedule. It is, therefore, clear that so far as the restrictions under old section 57 or new section 57A are concerned, the provisions of the Schedule VI have no overriding effect because any such interpretation would clearly make the entire section unworkable. When the provisions of S. 57(2) and S. 57A clearly contemplate charges being fixed by the order of the State Government, they should be given effect to by the licenses during the period when the order remained in operation and it would not be open to the licensees to resort to power of unilateral increase of the charges under Para 1 of VIth Schedule Section 57 would only mean that the power conferred by Para 1 Schedule VI could be exercised by the license, subject to the fetter imposed either under the old S. 57 or under the new S. 57A as the case may be, and in accordance with the requirements of the said Schedule VI. Assuming however, that the term, instrument was capable of the construction urged by the learned advocate General so as to cover an order issued by the Government in November 1951 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew section which takes place of the old section 57 which would show any intention to destroy these old orders. The very fact that the old section 57 stands substantially re-enacted and what is void is only what is inconsistent with the new section 57A would itself indicate that if there was no inconsistency, the old order clearly survived and there was no intention to avoid such an order. In fact the wordings of the latter part of Section 57 would thus indicate that when there was no such inconsistency the old orders or instruments had not become void and they would continue to have full legal effect as the past operation of the repealed S. 57 was clearly saved by section 6(b) of the General Clauses Act. Mr. Daru in this connection rightly relied upon an apposite decision of the Supreme Court in Deep Chand v. State of U.P. AIR 1959 SC 648. In that case their Lordships of the Supreme Court at page 667 had held that the provisions of the U.P. Transport Service (Development) Act, 1955 were inconsistent with Chapter IV-A brought by subsequent 1956 Amending Act in the Motor Vehicles Act, 1939. Under Art. 254(1) the State law would be void to the extent of repugnancy which would be compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without deciding that the word instrument in S. 68B included a scheme, there was nothing in the provision of the Act which was inconsistent with the scheme framed under the State Act. Because the provisions starting from S. 68C only contemplated a scheme initiated after the Amending Act came into force and, therefore, they could not be obviously inconsistent with a scheme already framed under the State Act before the Amending Act came into force. It was, therefore, held that S 6 of the General Clauses Act saved the scheme framed under the State law. In Para 37 at p. 669 it was also observed that there was no substance in the contention that the scheme being a prescription for the future, it had a continuous operation even after the Amending Act became law, with the result that there was no valid law to sustain the same, as it was in terms held that even after the Amending Act the State law subsisted to sustain all the things done under the former Act. This decision is a complete answer to the arguments advanced by the learned Advocate General. The learned Advocate General, therefore, urged that that decision was an interpretation of Article 254(1) and applied to the case of an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 6 continues past operation of the repealed Act and things done and actions taken under the repealed Act and saves past operation of the repealed enactment for sustaining the orders passed under the repealed enactment. S. 24 on the other hand continues orders and actions which are not inconsistent with the re-enacted provisions by introducing a fiction that they would be deemed to be issued under the re-enacted provisions and would, therefore, be continued in force not by the operation of the repealed enactment but by the operation of the new Act. It should also be kept in mind that unlike section 6 which specifically dealt with the case of repeal of any enactment which includes even the section of Act, section 24 deals with the repeal and re-enactment of the entire Act with or without modification. The present case, therefore, clearly falls under section 6, as it, per the decision of the Supreme Court in AIR 1955 SC 84 (Supra) and section 24, could not be invoked unless the Legislature had in terms created a deeming fiction that all the orders passed under the repealed section 57 were deemed to have been passed under section 57A. Besides the deeming fiction under section 24 woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er destroyed which is not the object of section 24. (9) Finally, the learned Advocate General faintly argued that even under the old section 57 the time limit could not be more than 3 years, as the rating committee was to consider the effect for the next three succeeding years of account. There is no substance in this contention. Merely because the rating committee was to consider a period of 3 years for the purposes of recommending rates to be fixed, it did not mean that the State Government could not fix any period for more than 3 years for the orders issued by the State Government, in the absence of anything in the section enacting any time limit. In fact, no such time limit could be imposed by the State Government. There is no substance even in this contention of the learned Advocate General. (10) In the result, both the Courts were right in holding that the old order issued in November 1951 continued to remain in force and the company was bound to give legal effect to the said order and it could not unilaterally increase its charges in violation of the said order which was sustained by the old section 57 which continued in operation under section 6 of the General Clauses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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