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1964 DIGILAW 55 (KER)

JOSEPH VARKEY v. KSEB

1964-02-19

P.GOVINDA NAIR

body1964
Judgment :- 1. These writ applications raise a common question and the question is whether the State Government acted in accordance with law and in compliance with the provisions of the Indian Electricity Act, 1910, and not in violation of any other law in having passed an order purporting to be under S.51 of the Indian Electricity Act, conferring on the Chief Engineer, all Superintending Engineers and all Executive Engineers under the Kerala State Electricity Board, the powers which the telegraph authority possessed under the Indian Telegraph Act, 1885, in respect of the placing of telegraph lines and posts for the purpose of a telegraph established or maintained by the Government or to be so established or maintained. The Section which has enabled the State Government to so empower is S.51 of the Indian Electricity Act which runs as follows: "51. Notwithstanding anything in S.12 to 16 (both inclusive) and S.18 and 19 the State Government may, by order in writing, for the placing of electric supply-lines, appliances and apparatus for the transmission of energy or for the purpose of telephonic or telegraphic communications necessary for the proper co-ordination of works, confer upon any public officer, licensee or any other person engaged in the business of supplying energy to the public under this Act, subject to such conditions and restrictions (if any) as the State Government may think fit to impose, and to the provisions of the Indian Telegraph Act, 1885, any of the powers which the telegraph-authority possesses under that Act, with respect to the placing of telegraph-lines and posts for the purposes of a telegraph established or maintained by the Government or to be so established or maintained". 2. It is not denied that there has been an order passed by the State Government under the above section. The point made is that in exercising the powers conferred on the State Government under S.51, the principles of natural justice should not be violated. It is so contended on the basis that the exercise of power under the above section is quasi-judicial in nature. 3. It is also contended that in view of the provision in S.42 of the Electricity (Supply) Act, 1948 the power under S.51 is incapable of being exercised. It is so contended on the basis that the exercise of power under the above section is quasi-judicial in nature. 3. It is also contended that in view of the provision in S.42 of the Electricity (Supply) Act, 1948 the power under S.51 is incapable of being exercised. Argument is said to be based on the well-known principle that two sister enactments which should supplement and complement each other must be read together and that if these two enactments are so read, it is clear that in oases where S.42 of the Electricity (Supply) Act could have applied there is no scope for the application of S 51 of the Indian Electricity Act. 4. These in short were the arguments advanced by counsel on behalf of the petitioners in these two writ applications who are land owners across whose lands, admittedly, there is a proposal to place wires, poles, wall-brackets, stays, apparatus and appliances for the transmission and distribution of electricity. The prayers in these writ applications are couched in very wide terms and briefly stated amount to this that I should call for the records relating and leading to the proposed re-alignment of the 220 K. V. line from Muzhiyoor to Pallom between the point covered by S Nos. 375/2 to 452/1 of Neezhoor Village, Vaikom Taluk and quash the same (O. P. No. 1567 of 1963) and a similar prayer in O. P. No. 2132 of 1963 which amounts to calling for the records relating and leading to the alignment of the 66 K. V. line from Kuravilangad to Cochin and Shertalai and by the issue of a writ of certiorari quash the same. In each of these petitions there is also a prayer for the issue of a writ of mandamus to the respondents directing them to act in accordance with the provisions of law. 5. The application of the relevant sections, S.10 to 17 of the Indian Telegraph Act, would certainly result in the deprivation of the right not only to object to the laying of lines and similar operations, but would dispense with the requirement contained in S.12 of the Indian Electricity Act that the consent of the persons affected must be obtained. 5. The application of the relevant sections, S.10 to 17 of the Indian Telegraph Act, would certainly result in the deprivation of the right not only to object to the laying of lines and similar operations, but would dispense with the requirement contained in S.12 of the Indian Electricity Act that the consent of the persons affected must be obtained. This is the reason why attack has been made on the alleged exercise of power by the State Government under S.51 of the Indian Electricity Act making the provisions of the Indian Telegraph Act applicable. 6. The short question arising for consideration so far as the first part of the argument is concerned, is whether there is anything in the statute, the Indian Electricity Act, 1910 which would indicate that the exercise of power under S.51 is a quasi-judicial function. It has been ruled by the Calcutta High Court in the decision reported in Sri. Provash Chandra Sett v. Gouripore Electric Supply Go. Ltd., (AIR. 1960 Calcutta 311) that the exercise of power under the section does not amount to the exercise of any quasi-judicial function. Even so, it was contended on the basis of the ruling of the Supreme Court reported in Board of High School and Intermediate Education, U. P. Allahabad v. Ghanshyam Das Gupta (AIR. 1962 SC. 1110) that the decision requires reconsideration and the correct position would be that the exercise of power under S.51 cannot be anything but the exercise of a quasi-judicial function. The passage from the decision of the Supreme Court relied on in support of this contention is at page 1113 and reads as follows: "Now it may be mentioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially, that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded to by the statute". 7. The statute, the Indian Electricity Act, is silent regarding the nature of the power to be exercised. Neither am I able to glean anything from any of the provisions of the statute which would help the petitioners in their contention that the exercise of power under S.51 is a quasi-judicial function. Although the rights of parties may be affected, the manner of the disposal provided under the statute and the absence of any criterion to be adopted in passing the order indicates that the order is administrative in character. The policy behind the statute seems to be one of expediency in public interest, an expediency and an interest that can and should override private rights in given circumstances. So understood, it appears to me to be inevitable, where there must be a machinery for the co-ordination of the generation, supply and distribution of electricity, the distribution of which might involve a flow from one end to the other of the State, and the fact that it may have to be undertaken quickly, that powers such as are vested under S.51 should exist. In a modern State such conferment of power cannot be said to be always out of place. And so I come to the conclusion that it is such power that has been conferred by S.51 of the Indian Electricity Act and there is no question of issue of notice to the persons affected or hearing them and launching on an enquiry of a quasi-judicial nature and reaching a conclusion which is subject to judicial review. This disposes of the first part of the argument. 8. It is then said that S.42 of the Electricity [Supply] Act in fact has over-ruled S.51 of the Indian Electricity Act. There is no gainsaying the fact that the two enactments, the Indian Electricity Act and the Electricity (Supply) Act, are sister enactments, meant to complement and supplement each other. This disposes of the first part of the argument. 8. It is then said that S.42 of the Electricity [Supply] Act in fact has over-ruled S.51 of the Indian Electricity Act. There is no gainsaying the fact that the two enactments, the Indian Electricity Act and the Electricity (Supply) Act, are sister enactments, meant to complement and supplement each other. But even so, I do not see anything in S.42 that can in any manner whittle down the powers conferred by S.51 on the State Government. S.42, as I understand it, is a provision which automatically makes the sections, S.10 to 17 of the Indian Telegraph Act, apply whenever provision is made in that behalf in the scheme. When S, 42 is attracted, it is attracted by virtue of the provision in the section itself, whereas S.51 of the Indian Electricity Act seems to me to contain a provision which enables the State Government to determine in each given case as to whether the provisions in the Indian Telegraph Act will be made applicable or not. 9. It is unnecessary to pursue this matter further because as I read S.70(2) of the Electricity (Supply) Act, the matter is taken beyond the pale of controversy. That sub-section reads thus: "Save as otherwise provided in this Act, the provisions of this Act shall be in addition to and not in derogation of, the Indian Electricity Act, 1910". S. 42 of the Electricity (Supply) Act can, therefore, be only in addition to and cannot impinge on the powers under S.51 of the Indian Electricity Act. 10. I dismiss these writ applications, but make no order as to costs.