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Allahabad High Court · body

2006 DIGILAW 2166 (ALL)

RAMKALI v. STATE OF UTTAR PRADESH

2006-09-01

TARUN AGARWALA

body2006
JUDGMENT Hon’ble Tarun Agarwala, J.—Heard Sri Shiv Sagar Singh, the learned Counsel for the petitioners and Sri Anurag Khanna, the learned Counsel for respondent No.2. 2. Since a pure question of law is involved, the writ petition is being disposed of at the admission stage itself without calling for a counter-affidavit. 3. The land of the husband of petitioner No. 1 and father of petitioner Nos.2 and 3 was acquired under the Land Acquisition Act for New Okhla Industrial Development Authority, commonly known as NOIDA. Against an offer made by the Special Land Acquisition Officer, the claimant filed a reference under Section 18 of the Land Acquisition Act and an award was given by the District Judge, against which, NOIDA filed a First Appeal before this Hon’ble Court in which an interim order for the payment of the compensation to the heirs of the claimant, was passed. Against the said award, the petitioners also filed a First Appeal for the enhancement of the compensation. Prior to the award given by the District Judge, the husband of petitioner No. 1 and father of petitioner Nos. 1 and 2 died and therefore, the first appeal was filed by the present petitioners before the High Court. During the pendency of the First Appeal, the petitioners moved an application before the Court below for the substitution of their names, declaring themselves to be the heirs of the deceased and rightful claimants of the compensation awarded under Section 18 of the Act. The executing Court by an order dated 17.5.2006 directed the petitioners to file a succession certificate so that their names could be substituted and the compensation could be released. Aggrieved, the petitioners have filed the present writ petition. 4. The learned Counsel for the petitioners submitted that there is no provision for the filing of a succession certificate in an application for the substitution of their names and for the release of the compensation awarded by the District Judge and therefore, the direction of the execution Court was erroneous and against the provisions of Section 214 of the Indian Succession Act. 5. The question for consideration is, whether in the facts and circumstances of the present case, a succession certificate was necessary in an execution proceeding for the release of the compensation awarded under the Land Acquisition Act. Section 214 of the India Succession Act reads as under : “214. 5. The question for consideration is, whether in the facts and circumstances of the present case, a succession certificate was necessary in an execution proceeding for the release of the compensation awarded under the Land Acquisition Act. Section 214 of the India Succession Act reads as under : “214. Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons.—(1) No Court shall— (a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on a succession to be entitled to the effects of the deceased person or to any part thereof, or (b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming, of— (1) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or (ii) a certificate granted under Section 31 or Section 32 of the Administrator-General’s Act, 1913 (3 of 1913) and having the debt mentioned therein, or (iii) a Succession Certificate granted under Part X and having the debt specified therein, or (iv) a certificate granted under the Succession Certificate Act, 1889 (7 of 1889), (v) a certificate granted under Bombay Regulation No. VIII of 1827 and, if granted after the first day of May, 1889 having the debt specified therein. (2) The word “debt” in sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes. 6. From a perusal of the aforesaid, it is clear that a succession certificate is required in a suit for the recovery of a debt filed by the representatives of a deceased person. In the present proceedings, the amount claimed is a compensation awarded under the Land Acquisition Act. This compensation awarded under Section 18 of the Land Acquisition Act is not a recovery of a debt nor the execution proceedings initiated by the claimants is for a recovery of a debt as contemplated under Section 214 of the Indian Succession Act. 7. In the present proceedings, the amount claimed is a compensation awarded under the Land Acquisition Act. This compensation awarded under Section 18 of the Land Acquisition Act is not a recovery of a debt nor the execution proceedings initiated by the claimants is for a recovery of a debt as contemplated under Section 214 of the Indian Succession Act. 7. In Smt. Rukhsana and others v. Smt. Nazrunnisha and others, 2001(92) RD 386, the Supreme Court held that the Succession Certificate as envisaged under the Indian Succession Act was only granted in respect of “debts” or “securities” to which the deceased was entitled. The compensation awarded under the Motor Vehicles Act was not a debt nor a succession certificate was required to be obtained in order to claim the compensation awarded under the Motor Vehicles Act. 8. In Resilikutty Chacko and others v. State of Kerala, AIR 1999 Kerala 56, the Court held that a succession certificate was not required to be filed by the heirs of the claimant towards compensation under the Land Acquisition Act. 9. In view of the aforesaid, it can clearly be held that the compensation awarded under the Land Acquisition Act is not a debt as contemplated under Section 214 of the Indian Succession Act and therefore, the claimants are not required to furnish a succession certificate. Consequently, the direction of the Court by its order dated 17.5.2006 cannot be sustained and is quashed. The writ petition is allowed. 10. The Court below will decide as to who are the legal representatives of the original claimant on the basis of the evidence led by the parties and if the Court below is satisfied that the petitioners are the legal representatives of the deceased claimant, in that event, their names would be substituted. Petition Allowed. ——— 55. Sri B.P. Singh, learned Counsel for the respondents-UPSEB, in the view of the decision of the Hon’ble Apex Court in Pilibhit Electric Supply Co. (P) Ltd. and another v. Special Officer (Electricity) and another (supra) could not dispute the aforesaid legal position and also could not dispute the amount of depreciation in case this Court finds this issue to be decided in favour of the petitioner. We, therefore, hold that the Special Officer had wrongly deducted Rs. (P) Ltd. and another v. Special Officer (Electricity) and another (supra) could not dispute the aforesaid legal position and also could not dispute the amount of depreciation in case this Court finds this issue to be decided in favour of the petitioner. We, therefore, hold that the Special Officer had wrongly deducted Rs. 9,88,520.13 from the book value of the assets as computed under Section 7-A (2) (i) of the Act of 1910 and that amount is required to be added to the book value of the assets determined as payable to the petitioner-ex-licensees by way of compensation. (4) Amount paid by the Consumers by way of Security Deposit and Arrears of Interest due on the date of Vesting, i.e., 15th Sepember, 1972. 56. Learned Counsel for the petitioner submitted that a sum of Rs. 14,54,766.75 has been deducted by the Special Officer being an amount of security paid by the consumers. The amount of security, which includes a sum of Rs. 1,13,207.95 was the amount of security deposited by such consumers, who were not consumers of the petitioner’s undertaking at the time of its taken over by the respondents. It is urged that in fact the said amount can be termed to be unclaimed amount of security of ex-consumers and was liable to be treated as assets of the undertaking. Reliance has been placed to Section 7 of the Act, which vests undertaking free from any debt, mortgage or similar obligations of licensee or attached to the undertaking. In support of this submission reliance is placed upon the law laid down in Banaras Electric Light and Power Co. Ltd. v. U.P. State Electricity Board, 1981 Tax L.R. 2412 (Paras 9,13 and 14); and U.P.S.E.B. v. Banaras Electric Light and Power Co. Ltd., 2001(7) SCC 117 (para-12). 57. A perusal of the impugned award at page 81 and 82 shows break up of the amount of Rs. 14,82,994.92 as follows : (a) Security Deposit as shown in the Balance Sheet - Rs. 14,54,766.75 (b) Interests accrued on the above upto vesting date. - Rs. 22,795.96 (c) Difference of charges at the revised rates. -Rs. 5,432.21 58. 57. A perusal of the impugned award at page 81 and 82 shows break up of the amount of Rs. 14,82,994.92 as follows : (a) Security Deposit as shown in the Balance Sheet - Rs. 14,54,766.75 (b) Interests accrued on the above upto vesting date. - Rs. 22,795.96 (c) Difference of charges at the revised rates. -Rs. 5,432.21 58. The contention of the petitioner in this regard may be examined in the light of Section 7 (3) of 1910 Act as amended in U.P. It provides that all the security deposits made by the consumers with the licensees that remained unpaid to the consumers on the said date shall be transferred by the licensees to the Board, and, if they are not so transferred, the Board shall deduct the amount of the said deposit from the amount to be paid to the licensees and if the said amount exceeds the amount available, recover the excess from the licensees as the arrears of land revenue. Therefore, whether the consumers has claimed security or not is not relevant. If the amount has been received by the licensees towards security deposits from the consumers, the same has to be paid to the Board. The Special Officer has rejected the claim of the petitioner under this item referring to Section 7(3), (4) and (5) as amended in U.P. as is apparent from the following extract at page 85-86 of the impugned award : “Sub-sections (2),(3),(4) and (5) were added to Section 7 of Indian Electricity Act, 1910 vide Act- XXXVI of 1974. As per sub-section (5) of the above section, the provisions of sub-sections (2),(3) and (4) mentioned above are applicable to all undertakings purchased before or after the commencement of the Electricity Laws (U.P. Amendment) Act, 1974 in respect of which the amount remains to be paid to the ex-licensees. According to sub-section (3) all security deposits made by the consumers with the ex-licensees that remained unpaid to the consumers on the said date shall be transferred by the ex-licensees to the Board and, if they are not so transferred, the Board shall deduct the amount of the said deposit from the amount to be paid to the ex-licensees and if the said amount exceeds the amount available, recover the excess from the ex-licensees as the arrears of land revenue. According to sub-section (4), the liability of the licensee to his consumers, to the extent of deduction and recoveries made by the Board under sub-section (3) stands discharged. In view of the above sub-sections (3), (4) and (5) (added vide Act No. XXXVI of 1974), it is clear that the ex-licensees have to transfer all security deposits made by the consumers with the ex-licensees that remained unpaid to the consumers on the said date (the date of transfer of the undertaking to the Board).” 59. It is worthy to mention that the amount of security is deposited by the consumers with the intention to protect and secure the interest of the supplier with respect to recovery of electricity charges from the consumers and also to indemnify against any possible loss arising from the damage caused to its installation by the consumer. The money, therefore, does not belong as such to the supplier and on account of its very nature it is not intended to swell the general revenue of the supplier or augment its capital resources. A Division Bench of this Court in Devidayal Aluminium Industries (P) Ltd. v. U.P.S.E.B. Lucknow and another, 1987 All.L.J.1472 observed in para-34 as under : “The security deposit is primarily and solely intended to protect and secure the interest of the Board in regard to its claim for recovery of electrical dues from the consumers as well as for indemnifying itself against possible losses arising from the damage caused to its installations by the consumer.” 60. To the same effect is the view taken by the Apex Court also in U.P. State Electricity Board, Lucknow v. Official Liquidator, Lower Ganges Jamuna Electricity Distributing Co. Ltd., AIR 1973 SC 2546 . The two judgments relied by the petitioner in view of the aforesaid discussion are inapplicable in this case dealing different aspects. Therefore, we find that the view taken by the Special Officer on this issue is correct and consistent with the legal and statutory provisions warranting no interference. (5) Advances from Consumers and Prospective Consumers who have not taken co\Connection till the date of Vesting 61. The petitioner contended that the Special Officer has deducted a sum of Rs. 1,53,311.93 from the amount of compensation, being the amount paid by the consumers by way of security, which included Rs. (5) Advances from Consumers and Prospective Consumers who have not taken co\Connection till the date of Vesting 61. The petitioner contended that the Special Officer has deducted a sum of Rs. 1,53,311.93 from the amount of compensation, being the amount paid by the consumers by way of security, which included Rs. 48,087.66 paise, being unclaimed amount of security of the persons, who were not consumers on the date of vesting having never released connection for electric energy and, therefore, the said amount was not transferable to the Board. Reliance again placed on Section 7 which vest undertaking free from any debt, mortgage or similar obligation of the licensee or attached thereto. It is, thus, contended that from the very language of the provisions, the assets of the undertaking vest in the Board could not have included securities of non-consumers, namely, the persons, who never got any electrical connection, and thus, were not consumers on the date of vesting. In support of the aforesaid submissions reliance has been placed again on Benaras Electric Light and Power Co. Ltd. v. U.P. State Electricity Board (supra) (Paras 9, 13 and 14) and U.P.S.E.B. v. Banaras Electric Light and Power Co. Ltd. (supra) (Para-12). 62. A perusal of Section 7-A (5)(g) shows that the purchaser is entitled to deduct all advances from consumers and prospective consumers, and sums, which have been or ought to be set aside to the credit of the consumers, in so far as such advances or sums have not been paid over by the licensee to the purchaser from the gross amount payable to the licensee under Section 7-A. The provision is very clear in respect to the advances from the consumers and prospective consumers, i.e., persons, who have not been given connection and are likely to become consumers. The Special Officer has considered this aspect on page 89 of the impugned award. It appears from page 89 to 91 that total unclaimed deposits shown by the petitioner in statement No. XI, of annual report and balance sheet for the year 1973 was Rs. 67,121.03. The petitioner claimed the aforesaid entire amount being sum of unclaimed deposits of the consumers, which was transferred to misc. revenue. However, the Chief Electrical Inspector in his letter dated 21.6.1974 observed that the aforesaid amount of Rs. 67,121.03 includes Rs. 67,121.03. The petitioner claimed the aforesaid entire amount being sum of unclaimed deposits of the consumers, which was transferred to misc. revenue. However, the Chief Electrical Inspector in his letter dated 21.6.1974 observed that the aforesaid amount of Rs. 67,121.03 includes Rs. 19033.37 as Consumers’ Security Deposits and, therefore, the said amount was wrongly claimed by the petitioner although not adjustable. 63. From a perusal of the written arguments it appears that the petitioner has given up its claim for Rs. 19,033.37 accepting it to be the consumers’ security deposit, which is not adjustable. With respect to the Consumers Security Deposits, we have already discussed the issue at Item No.4 and the petitioner also appears to have realized this legal position. It is for this reason he has rested his claim for balance amount, i.e., Rs. 67,121.03—19,033.37= 48,087.66 treating it to be unclaimed security of the persons, who were not consumers on the date of vesting. However, the record shows that the aforesaid entire amount was claimed by the petitioner, as unclaimed deposits of the consumers, and he himself has transferred it to misc. revenue account. All advances of the consumers and prospective consumers as well as the sums, which have been or ought to have been set aside to the credit of the consumers, in so far as such advances or consumers have not been paid over by the licensee to the purchaser, is liable to be deducted from the gross amount of compensation determinable under the aforesaid provisions and, therefore, in our view, the Special Officer has rightly disallowed the claim of the petitioner in respect to the aforesaid amount. Once the statutory provisions covered certain items to be dealt with in a particular manner, it is not open to anyone to claim or allow adjustment of such item in a manner otherwise than it is provided under such statute. Of the two judgment relied by the learned Counsel for the petitioner, the earlier one, a Single Judge judgment of the Calcutta High Court, has been considered by the Apex Court in U.P.S.E.B. v. Banaras Electric Light and Power Co. Ltd. (supra) and the observations of the Hon’ble Apex Court, in our view, goes contrary to the petitioner and supports the view, we have expressed here above. Ltd. (supra) and the observations of the Hon’ble Apex Court, in our view, goes contrary to the petitioner and supports the view, we have expressed here above. In para-12 of the judgment, the Apex Court also held that the field, being covered by statute, the exercise has to be done strictly in accordance with the statutory provisions and it is not open for the Board to make any deduction by way of adjustment or set off from the amount to be paid to the Company without a statutory mandate in that regard. The said observation apply with full force in respect to the amount covered by Section 7-A (5) (g) of the Act and, in our view, the Special Officer has rightly held that the petitioner cannot claim retention of the aforesaid amount. We, therefore, do not find any reason to interfere with the aforesaid finding of the aforesaid Special Officer. The claim of the petitioner in respect to this item is therefore rejected. (6) Contingencies Reserve 64. On page 105 of the impugned award, the Special Officer has dealt with the item “the Contingencies Reserve”. Section 7A (5) (h) of the Act of 1910 permits purchaser to deduct the amount remaining in tariffs and dividend control reserve, “contingency reserve” and “development reserve”, in so far as such amount, has not been paid over by the licensee to the purchaser. Para-III of Schedule VI to the Act of 1948 requires every licensee to create from existing reserves or from the revenues of the undertaking, a reserve to be called “Contingencies Reserve”. The ex-licensee is required to appropriate “Contingencies Reserve” from the revenue of the each year of account, a sum not less than 1/4 of 1 per centum and not more than 1/2 of 1 per centum of the original cost of fixed assets subject to the condition that if the said reserve exceeds, or would, by such appropriation, be caused to exceed 5% of the original cost of fixed assets, no appropriation shall be made which would have the effect of increasing the reserve beyond the said maximum. The sum appropriated to the “Contingencies Reserve” is required to be invested in securities authorised under the “Indian Trusts Act”. The sum appropriated to the “Contingencies Reserve” is required to be invested in securities authorised under the “Indian Trusts Act”. Para V(1) of Schedule VI of Act of 1948 provides that the “Contingencies Reserve” shall not be drawn upon during the currency of the licence except to meet such charges as the State Government may approve being: (a) expenses or loss of profits arising out of accidents, strikes or circumstances which the management could have not prevented; (b) expenses on replacement or removal of plant or works other than expenses requisite for normal maintenance or renewal; (c) compensation payable under any law for the time being in force and for which no other provision is made. Para-V (2) of Schedule VI of Act of 1948 further provides that on the purchase of the undertaking, the “Contingencies Reserve”, after deduction of the amount drawn under sub-para (1), shall be handed over to the purchaser, and shall be maintained as such “Contingencies Reserve”. The proviso, however, says where the undertaking is purchased by the Board or the State Government, the amount of reserve, computed as above, shall, after further deduction of the amount of compensation, if any, payable to the employees of the outgoing licensee under any law for the time being in force, be handed over to the Board or the State Government, as the case may be. 65. The petitioner contended that the Special Officer has deducted Rs. 10,631.07 towards “contingencies reserve” under Section 7-A (5) (h) although at the time of taking over, the retrenchment compensation claim allowed as paid to the employees was Rs. 2,25,656.00 but they have actually paid such compensation to the tune of Rs. 2,83,005.71, i.e., a sum of Rs. 57,349.71 has been paid by the petitioner from their own reserve and, therefore, Rs. 10,631.71 deducted towards contingency reserve was wrong on the part of the Special Officer. In support of the contention that the amount of retrenchment compensation was liable to be adjusted, reliance has been placed on U.P. Electric Supply Co. v. R.K. Shukla, AIR 1970 SC 237 (paras 20, 21 and 22). 66. Sri B.P. Singh, learned Counsel appearing on behalf of the respondents has filed written submissions confined to the item of “contingencies reserve” only. v. R.K. Shukla, AIR 1970 SC 237 (paras 20, 21 and 22). 66. Sri B.P. Singh, learned Counsel appearing on behalf of the respondents has filed written submissions confined to the item of “contingencies reserve” only. It has been argued that the petitioner has already withdrawn from the “contingencies reserve” a large sum without sanction from the Government during the period from 1956-57 to 1972-73 and, therefore, the Special Officer has rightly held that even after the adjustment of the amount, which could legally be adjusted, the remaining amount was deductible from the compensation. The respondents have also placed reliance on the judgment of the Hon’ble Apex Court in Bhola Nath Mukherjee and others v. Government of West Bengal and others, 1997 (1) SCC 562 wherein it was held that the undertaking vest in the Board free from any debt, mortgage or similar obligation and if the purchase price paid by the Board is sufficiently large to pay the claims of the workmen, then the dues of the workmen should be paid out of purchase money. It was held that there is no legal obligation cast upon the Board under the terms of the transfer or otherwise to pay any retrenchment compensation to the workmen. 67. In our view, none of the judgments cited by either of the parties help to decide the issue in question. 68. The Hon’ble Apex Court in U.P. Electric Supply Co. (supra) held that the retrenchment compensation if payable, it is the original undertaking, which remains liable, and not the undertaking, which takes over the business. Considering Section 7 of the Act of 1910, as was applicable in the said case at the relevant time, the Court held, that, the provision itself shows when the undertaking vests in the purchaser, any debt, mortgage or similar obligation attached to the purchase money in substitution of the undertaking. The liability to pay retrenchment compensation being a debt: if it arises on transfer it will attach to the purchase money payable to the Company “in substitution for the undertaking”. It further held that Sections 56 and 57 of the Act of 1910 do not support the case of the ex-licensee that the liability is enforceable against the Board after it takes over the undertaking. It further held that Sections 56 and 57 of the Act of 1910 do not support the case of the ex-licensee that the liability is enforceable against the Board after it takes over the undertaking. In paras 21 and 22 of the judgment it was observed as under : “If the retrenchment compensation becomes properly due to the employees of the Company, it would, by virtue of Clause V, sub-clause (2) proviso, be charged upon the Contingencies Reserve and the balance alone would be handed over to the purchaser.” (Para-21) “It was argued that the Contingencies Reserve has been paid over to the purchaser. There is, however, no finding by the Labour Court in that behalf. It if be found in appropriate proceedings that retrenchment compensation is payable to the workmen and the Contingencies Reserve out of which it is payable has been handed over to the Board, the charge for payment of that amount may attach to that amount. On that matter by need express no opinion at this stage.” (Para-22) 69. Therefore, the controversy involved in UPSEB v. R.K. Shukla (supra) was totally different. Similar is the position with respect to Bhola Nath Mukherjee and others (supra) cited on behalf of the respondents. 70. We have to consider this issue in the light of the facts of the case in hand. 71. The petitioner has not claimed that whatever retrenchment compensation, it has to pay to its workmen, either should be paid by the respondents or such amount should be made available to the petitioner simultaneously adjusting against the compensation determined and payable under Section 7-A. We are also of the view that the objections of the petitioner is confined to the adjustment of Rs. 10,631.07 which has been transferred by the Special Officer under Section 7-A (5)(h) of the Act of 1910, as deductible from the amount of compensation payable to the petitioner under the heading “Contingency Reserve” treating it to be the balance amount. The question is whether finding of Special Officer regarding aforesaid amount is correct or not. The petitioner has not been able to point out any error in the findings recorded by the Special Officer with respect to the aforesaid item, which has been discussed in detail from page 105 to 118 of the impugned award. The question is whether finding of Special Officer regarding aforesaid amount is correct or not. The petitioner has not been able to point out any error in the findings recorded by the Special Officer with respect to the aforesaid item, which has been discussed in detail from page 105 to 118 of the impugned award. In fact, only that appropriation of the amount towards retrenchment compensation has been allowed by the Special Officer, which has been withdrawn in accordance with the provisions of the Act of 1948. For the amount disallowed, the Special Officer has recorded its findings on page 115 of the impugned award as under: “In the light of above and also in the light of the Act, the approval of the Government is essential which has not been accorded so far. The withdrawals from the Contingencies Reserve becomes contrary to the provisions of law and, therefore, this Reserve should be transferred to the Board.” 72. Further on page 117 the Special Officer has observed as under : “I, therefore, hold that the retrenchment compensation was paid by the ex-licensees correctly." 73. Moreover, so far as Rs.10, 631.07 is concerned, it was shown balance in the account books of the petitioners under the head “Contingencies Reserve” and, therefore, the Special Officer allowed the aforesaid amount to be transferred to the Board pursuant to the provisions of Sections 7-A (5)(h) of the Act of 1910, as is apparent from the following findings recorded by the Special Officer on pages 117-118 of the impugned award : “In connection with the sale proceeds of the items retired from works and their written cost charged to contingencies, the ex-licensees, during preliminary discussions, stated that no such items were awaiting disposal for crediting their sale proceeds to the Contingencies Reserve. However, they later furnished a statement showing that such items worth Rs.10,631.07 and awaiting disposal were existing on their books though the same were not physically available. Since such items were existing on the books of the ex-licensees with Nil value and as the same were not handed over to the Board, I hold that the sale proceeds of such items (which were existing on the books but not physically available with the ex-licensees) be taken as equivalent to their written down cost amounting to Rs. 30,631.07 and this amount be deemed to be available in the Contingencies Reserve with the ex-licensees. 30,631.07 and this amount be deemed to be available in the Contingencies Reserve with the ex-licensees. After going through the arguments of the ex-licensees, the U.P. State Electricity Board, the judgment of the Supreme Court and the provisions contained in the Electricity (Supply) Act, 1948 in respect of Contingencies Reserve, I hold that a sum of Rs.10,631.07 (deemed to be available in the Contingencies Reserve with the ex-licensees, as discussed above) is the remaining amount in the Contingencies Reserve with the ex-licensees.” 74. The provisions of Section 7-A (5)(h) of the Act of 1910 has also been considered by the Hon’ble Apex Court in Pilibhit Electric Supply Co. (P). Ltd. and another v. Special Officer (Electricity) and another (supra) and in para 14 of the judgment it observed as under : “A mere look at the said provision shows that from the amount of compensation payable to the purchaser to Special Officer can deduct the amounts remaining in Tariffs and Dividends Control Reserve. Contingencies Reserve and the Development Reserve, insofar as such amounts have not been paid over by the licensee to the purchaser.......... The said provision clearly indicates that whatever amounts have remained in the concerned Reserve Accounts with the licensee on the date of acquisition have to be paid over to the purchaser. Thus actual balances of these Reserves as reflected from the books of accounts of the licensee, had to be handed over to the Board.” 75. In this view of the legal as well as factual position, it cannot be said that the Special Officer has committed any error in rejecting claim of the petitioner in respect to the “Contingencies Reserve”, we find no reason to interfere on this issue. (7) Development Reserve 76. The petitioner has contended that a sum of Rs. 2,49,434.28 under the head of “Development Reserve” has wrongly been deducted by the Special Officer in the impugned award (at page 38 to 41) from the amount determined and payable to the petitioner. (7) Development Reserve 76. The petitioner has contended that a sum of Rs. 2,49,434.28 under the head of “Development Reserve” has wrongly been deducted by the Special Officer in the impugned award (at page 38 to 41) from the amount determined and payable to the petitioner. The assumption on the part of the Special Officer for making the aforesaid deduction that the funds available in “development reserve” was not used in creating fixed assets is incorrect, inasmuch as, under Clause V-A of Schedule VI of the Act of 1948, the ex-licensee was under statutory obligation to utilize the funds available in “Development Reserve” for creating fixed assets and the assumption drawn by the Special Officer otherwise is incorrect. The petitioner has also placed reliance on the following in support of the aforesaid claim : 1. M/s. Alfa Alloy Steels Pvt. Ltd. v. Rajasthan State Electricity Board, AIR 1987 (Raj) 131 . 2. Devi Dayal Aluminium Ltd. v. U.P.S.E.B., 1987 ALJ 1472. 3. U.P.S.E.B. v. Office Liquidator, Lower Ganges Yamuna Electricity Distribution Co., AIR 1973 SC 2546 . 77. In our view, the position in respect to Development Reserve is very clear. In Tinsukhia Electric Supply Co. Ltd. v. State of Assam (supra) the Hon’ble Apex Court read the statutory provisions in the manner that if any part of the reserve is invested in “fixed assets” and the reserves in the form of “fixed assets” are taken over pursuant to the acquisition, what remains to be accounted for by the licensee is only the amount remains balance in the concerned accounts. Meaning thereby, in case the amount under the “Development Reserve” having already been invested in the form of fixed assets, that is already transferred to the Board and in case the amount is not invested and remained with the ex-licensee, the same has to be transferred by it. The Hon’ble Apex Court in U.P. State Electricity Board v. Upper Jumna Valley Electricity Supply Company Limited and others (supra) also observed that the “development reserve” is available for investment in the business of electricity supply of the undertaking. The Hon’ble Apex Court in U.P. State Electricity Board v. Upper Jumna Valley Electricity Supply Company Limited and others (supra) also observed that the “development reserve” is available for investment in the business of electricity supply of the undertaking. The Special Officer after appreciation of the material on record and the entire evidence has recorded its finding of fact at page 104 which is as under: “From the enclosed statement (Appendix-XLV) it will be seen that the ex-licensees were having sufficient funds every year for creating Capital Assets out of the amount of paid up Capital, consumers’ security in cash, Depreciation Reserve Fund and Contribution from consumers/local bodies. Similarly from other statement (Appendix-XLVI), it will be seen that the ex-licensecs had invested amount in securities (excluding securities in which the amount of contingencies Reserve was invested under the provisions of the Act), fixed deposits with bank etc. and the total in such investments has always been more than the balance amount in Development Reserve in any year. This clearly shows that the amount in Development Reserve was not utilized in the business of the electricity supply of the undertaking in any years and it was intact at the time of handing over of the undertaking to the Board and, therefore, I hold that the ex-licensees did not utilise the amount in Development Reserve in the business of the electricity supply of the undertaking and that a sum of Rs. 2,49,434.28 on account of the balance of Development Reserve on the date of handing over of the undertaking to the Board, should be deducted from the gross amount payable to the ex-licensees.” 78. Learned Counsel for the petitioner has not placed anything before us to show any perversity in the aforesaid finding of fact recorded by the Special Officer on appraisal of the evidence placed before it. The judgments referred and relied by the learned Counsel for the petitioner in support of the aforesaid item have no relevance at all and inapplicable. Therefore, we are of the view that the impugned award of the Special Officer in respect to the “Development Reserve” is neither bad nor vitiated in law and needs no interference. 79. In view of the discussions made above, it is apparent that the Special Officer has wrongly deducted Rs. Therefore, we are of the view that the impugned award of the Special Officer in respect to the “Development Reserve” is neither bad nor vitiated in law and needs no interference. 79. In view of the discussions made above, it is apparent that the Special Officer has wrongly deducted Rs. 23,35,796.11 under the heading “Deduction for Depreciation of Assets Created from the Consumers’ Contribution, since the correct amount for deduction ought to be Rs.13,47,275.98 and, therefore, the petitioner was entitled for addition of Rs. 9,88,520.13 towards the amount of compensation payable to him under Section 7-A of the Act of 1910. In respect to other issues, the award of the Special Officer is upheld and the contentions of the learned Counsel for the petitioner are rejected. 80. The writ petition, therefore, partly succeeds. We uphold the impugned award with the modification that the Special Officer has wrongly deducted Rs. 9,88,520.13 from the book value of the assets under the heading “Deduction for Depreciation of Assets Created from the Consumers’ Contribution” and the said amount is payable to the petitioner with such rate of interest, as provided under the Act of 1910. Therefore, the net amount payable to the petitioner comes to Rs. 3,29,313.13 (Rs. 9,88,520.13-6,59,207) and the respondents, therefore, are directed to pay the aforesaid amount to the petitioner with interest thereon, as provided under the Act of 1910 within a period of six months from the date of production of a certified copy of this judgment before the respondents. In respect to all other matters, the writ petition shall stand dismissed. However, there shall be no order as to costs. Petition Partly Allowed. ———