TMI Blog1968 (7) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 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. 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.Appeal allowed. - C.A. 706 OF 1965 - - - Dated:- 25-7-1968 - HEGDE, K.S. AND BACHAWAT, R.S., JJ. For the appellant : Purshottam Trikamdas and N. Shroff For the respondent : B.D. Sharma JUDGMENT The Judgment of the Court was delivered by Hegde, J. This is plaintiff s appeal. The Amalgamated Electricity Co. Ltd. is the plaintiff in the suit from which this appeal arises. It sued the Municipal Committee, Ajmer through its Chairman in suit No. 21 of 1951 in the court of Sub Judge, first class, Ajmer. In that suit it claimed a sum of Rs. 93,520/2/1 as Surcharge due under certain notifications issued by the Chief Commissioner of Ajmer. Out of the said sum, a sum of Rs. 28,837/12/5 was claimed as being due as SUrcharge on the bills issued by it in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r approved by the Bombay High Court. Fhe Ajmer Electric Supply Co. Ltd. had en tered into an agreement (Exh. 20) on 31-3-1932 with the Municipal Committee, Ajmer for supplying electricity for street lighting and maintaining the street lighting equipments. By another agreement (Exh. 21 ) dated 15-3-1939, it undertook to pump water from the wells belonging to Municipal Committee at Bhaonta. On September 3, 1948, the Governmen t of India in exercise of the powers conferred on it by s. 2 of Ajmer Merwar (Extension of Laws) Act, 1947, extended the Bombay Act to the province of Ajmer Merwar subject to certain modifications. That notification among other modifications omitted the words "or in any contract for energy or for maintenance of street lighting equipment" found in s. 6 of the Bombay Act. The other modifications made are not relevant for our present purpose. After the extension of the Bombay Act to Ajmer Merwar the Ajmer Electric SuppLy Co., Ltd., applied under s. 3 of the Bombay Act to the Chief Commissioner for imposing Surcharge as provided in that section to meet its increased cost. On September 19, 1948, the Chief Commissioner directed that the Bombay Act as modified shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means of a lawyers notice dated 16-8-1951 to pay the surcharge detailed therein. As the defendant did not comply with the demand made, the plaintiff after the amalgamation mentioned earlier instituted the present suit. It is not necessary to deal with the various pleas taken by the defendant in resisting the plaintiff s suit. Some of those pleas have been given up; some have not been considered by the High Court. The plaintiff s suit has been dismissed by the High Court solely on the grounds mentioned above. If the plaintiff succeeds satisfying this Court that the view taken by the High Court is wrong then the matter will have to go back to the High Court for decision on questions left undecided. We shall first take up the question of notice under s. 233 of Ajmer Merwar Municipalities Regulation. The contention of the defendant is that the notice issued is invalid inasmuch as the same was issued on behalf of the Ajmer Electric Supply Co. Ltd. after that company was amalgamated with the plaintiff. The next ground of attack is that the said notice is invalid because it does not set out the name and the place of abode of the intending plaintiff. These contentions have commended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies with the requirements of law. If the first alternative is accepted there is no need to go into the question as to the validity of the notice issued. In the suit, the plaintiff does not complain of any act done by the defendant nor does it say that the defendant was guilty of any illegal omission. The plaintiff s case is as mentioned earlier that in view of the notification issued by the Chief Commissioner on March 29, 1949 [Exh. 13(B)], it was entitled to recover from the defendant the amount claimed. The stand taken by the defendant is that the levy of surcharge is invalid. Whether the contention is sustainable or not there is no doubt that it is bona fide contention. That contention had commended itself to the High Court. Every omission is not an illegal omission. Before an omission can be considered as an illegal omission it must be shown that the official concerned had omitted to discharge some official duty imposed on him in public interest. The omission in question must have a positive content in it. In other words the non discharging of that duty must amount to an illegality. We are told that under the provisions of the Ajmer Metwar Municipalities Regulation, it is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Sir George Lowndes speaking for the Board observed thus: "On the alternative contention their Lordships are unable to hold that non-payment by respondent 1 is an act purporting to be done by the manager in his official capacity . Under the general definitions contained in s. 3, General Clauses Act, 1897 an act might include an illegal omission but there clearly was no illegal omission in the present case. It is also difficult to see how mere omission to pay either interest or principal could be an act purporting to be done by the manager in his official capacity." (emphasis supplied). At this stage we would like to emphasis the observations of their Lordships; "but clearly there was no illegal omission in the present case." This observation shows that a mere omission to discharge the debt without any thing more is not an illegal omission. It is true that in that case, the court proceeded further and observed: "The mortgage imposed no personal liability upon the manager, but merely provided that if payment was not made the mortgagee would be entitled to realize his dues by sale through the Court, and this was all that the appellant sought by his suit. The manager for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uipments." The notification extending this Act to Ajmer Metwar modified that section and the modified section reads: "The provisions of the Act shall apply notwithstanding anything in any other law or any licence or sanction granted under the principal Act." The words Principal Act refer to the Electricity Act. On the basis of this modification it is urged on behalf of the respondent that the Chief Commissioner was not competent to levy the impugned surcharge. From the fact that certain words were omitted in s. 6, we are asked to assume that the Government of India intended that no surcharge should be levied on the bills issued to the defendant for the supply of electrical energy for street lighting. We do not know why the words in question were omitted from s. 6. But to our mind the omission of those words does not in any manner affect the provisions contained in ss. 3 and 4 the Bombay Act. Now we shall set out ss. 3 and 4 of the Bombay Act. They read: "Section 3 .--( 1 ) Any license or sanction-holder may apply to the Provincial Government in the prescribed form for fixing a rate of surcharge on the charges for energy or street lighting equipment leviable by him under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read into that section an exception in the case of Municipal Councils or electricity supplied for street lighting under a contract. Section 6 does not in any manner cut down the operation of ss. 3 and 4. In our opinion that section as it stood originally or as modified has no impact on ss. 3 and 4. Charges for the supply of energy for street lighting are ordinarily payable by the Municipal Councils. Generally speaking it is the Municipal Councils that provide street lighting. Possibly s. 6 was included in the Bombay Act as a matter of abundant caution. It is not denied that the Bombay legislature had competence to enact that Act. We shall presently examine the contention that Act is ultra vires the provisions of Electricity Act and therefore the provisions of that Act should not be given effect to. But for the present we are assuming that Act is valid and proceed to examine the impact of s. 6 on ss. 3 and 4. We think that s. 6 does not in any manner control ss. 3 and 4. The intention of a legislature or its delegate has to be gathered from the language of the statutory provisions and not from what it failed to say. If because of modification of s. 6, the provisions contained in ss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid; such a course is violative of cl. 12 of the Schedule in the Electricity Act; hence it must be held that the Chief Commissioner had no power to levy any surcharge which would interfere with the mandate of cl. 12. It was not said before us nor before the High Court that the Bombay legislature had no competence to enact the Act. Electricity is a concurrent subject both under the Constitution as well as under the Government of India Act, 1935. Therefore quite clearly the Bombay legislature had competence to provide for the levy of surcharge so long as the relevant provision did not conflict with any provision in any central Act. Hence the question is whether ss. 3 and 4 are in conflict with cl. 12 of the Schedule of the Electricity Act ? If the two can co-exist then there is no question of conflict between the two. We see no conflict between cl. 12 of the Schedule in the Electricity Act and ss. 3 and 4 of the Bombay Act. Clause 12 prescribes a procedure for settling the price of electricity supplied by the licensee for street lighting. It merely lays down the machinery for settling the price if there is dispute between the contracting parties. That clause does not fix the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce we are in agreement with the learned Judges of the High Court that the plaintiff s case in this regard should fail. Mr. Sharma urged that the High Court had not thought it necessary to decide certain contentions advanced on behalf of the defendant in view of its conclusions set out earlier. He told us that the defendant had pleaded that the plaintiff failed to prove the quantum of surcharge payable by the defendant. It also contended that the notification under which the surcharge is levied cannot have retrospective operation and that no surcharge was leviable under that notification on the charges in respect of maintaining street lighting equipments. According to the learned Counsel for the plaintiff there is no merit in any one of these contentions. As mentioned earlier the High Court has not gone into these contentions. It is for that court to examine those contentions. This court does not ordinarily examine contentions which have not been examined by the appellate court. It is best that these questions should be gone into by the High Court. In the result we allow this appeal, set aside the judgment of the High Court and remand the case back to the High Court for decidi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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