TMI Blog1968 (8) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... come to the conclusion that that conclusion is unsustainable then the matter will have to go back to the High Court for deciding the constitutionality of s. 7. The respendent was given a licenee on. February 11, 1932, under the provisions of the Baroda Electricity Act Samvat 1983 for supplying electricity within the area mentioned. in the licenee. Clause 27 of that licenee provided that the option of purchase given by s. 9 of the Baroda Electricity Act shall be exercisable first on the expiration of thirty years computed from the commencement of the licence and thereafter on the expiration of every subsequent period of ten years during the subsistence of the licence. The manner in which the undertaking should be valued is laid down in that Act. On the merger of the former Baroda State with the Province of Bombay, the Act as well as the Electricity (Supply) Act, 1948 (Act 54 of 1948) were made applicable to the territories of the former State of Baroda, and the corresponding Baroda Acts were repealed with the saving clause that the licences issued under the repealed Act shall continue to remain in force as if issued under the Act, until the expiration of the period of those licen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt from ceasing to supply electricity to him for the purpose of his said undertaking and also refrain the appellant from preventing him from supplying electric energy in the area mentioned in his licence. Some other incidental reliefs were also sought. The High Court came to the conclusion that though the notice issued by the appellant on January 8, 1959 is a valid notice under s. 7(4) of the Act but that by itself is not sufficient to compel the respondent to sell his undertaking to the appellant; before the respondent can be compelled to sell his undertaking to the appellant it was necessary for the appellant to exercise its option to purchase the undertaking on the expiration of the period of licence. As the appellant had failed to exercise that option on the expiration of the period of licence it cannot compel the respondent to sell his undertaking. On the basis of these findings the High Court has substantially granted the relief prayed for by the respondent. The appellant challenged the correctness of this conclusion. On the other hand the respondent is supporting the judgment of the High Court not only on the ground accepted by the High Court but also on some of the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee suitable to, and used by him for, the purposes of the undertaking, other than a generating station declared by the license not to form part of the undertaking for the purpose of purchase,. such value to be, in case of difference or dispute, determined by arbitration: (4) Not less than two years notice in writing of any election to purchase under this section shall be served upon the licensee by the local authority or the State Government as the case may be. In our opinion sub-s. (4 ) of s. 7 is complementary to sub-as. (1) and (2) of that Section and therefore they must be read together. On an analysis of these provisions it is seen that before a licensec can be compelled to sell his undertaking, the authority entitled to purchase must elect to purchase the same by exercise of the option given to it under the licence read with s. 7 of the Act followed by a notice as required by s. 7 (4) of the Act. In s. 7 the expression option of purchasing an undertaking merely means the right of purchasing the undertaking. The word option is used because two courses are open to the concerned authority namely, either to purchase the undertaking or renew the licenee. Once the author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection. The requirements of s. 7 were fully complied with by the notice issued by the Bombay State Electricity Board on January 8, 1959. We shall. now take up the other contention advanced by Mr. H.R. Gokhale, learned Counsel for the respondent in support of the decision under appeal. One of his contentions was that whether the State Government was competent to purchase the undertaking or not, neither the Bombay State Electricity Board nor the appellant was competent to exercise that right. His .argument on this question proceeds thus: Section 7(1) prior to its amendment in 1959 empowered the local authority or the State Government to make the purchase contemplated under that Section; the Electricity Board is not within the contemplation of that Section; the finding of the High Court that the provisions contained in sub-ss. 1, 2 and 4 of s. 7 of the Act read with s. 71 of the Electricity (Supply) Act, 1948, confers on the appellant such a power is not correct because the right or option to purchase the undertaking was conferred on the State Government or the appropriate local authority under the licence and not under the provisions of the Act; in other words the said right is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right obtained by the authority by virtue of s. 7. There is no dispute that the licence granted must conform to the requirements of s. 7. In Okara Electric Supply Ltd. and Anr. v. State of Punlab([1962] S.C.R., 239) this Court observed that ss. 5,. 6 and 7 show that in the case of a licensee, specific provisions have been made for the acquisition of the undertaking in cases of revocation or cancellation of licenses. For the aforementioned reasons we hold that appellant had acquired the right to purchase the undertaking by the combined operation of s. 7 of the Act and s. 71 of the Electricity (Supply) Act, 1948. It was next contended on behalf of the respondent that by the time the licence period expired, s. 7 of the Act had been amended and s. 71 of the Electric (Supply) Act, 1948 repealed, no provision was made to preserve the rights already acquired under those provisions, hence the appellant is not entitled to purchase the undertaking. It is not the case of the respondent that either expressly or by necessary implication, the new law had taken away the right acquired earlier. That being so s. 6 of the General Clauses Act comes to the aid of the appellant. That Section prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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