PETITIONER: THE MYSORE STATE ELECTRICITY BOARD Vs. RESPONDENT: BANGALORE WOOLLEN, COTTON AND SILK MILLS LTD. & ORS. DATE OF JUDGMENT: 15/11/1962 BENCH: DAS, S.K. BENCH: DAS, S.K. KAPUR, J.L. SARKAR, A.K. HIDAYATULLAH, M. DAYAL, RAGHUBAR CITATION: 1963 AIR 1128 1963 SCR Supl. (2) 127 CITATOR INFO : R 1964 SC1230 (9) R 1964 SC1305 (11,23) C 1991 SC 101 (211) ACT: Electricity-Revision of rates of supply by Government after expiry of agreement Dispute raised by consumer-If liable to arbitration-Electricity (Supply) Act, 1948 (54 of 1948) s. 76,49,60, Indian Electricity Act, 1910 (9 of 1910) S. 52. HEADNOTE: Disputes arose between the respondent mills and the appellant Board relating to the payment of revised rates to the appellant or its predecessor, the Government of Mysore under the Electricity (Supply) Act, 1948 Prior to the constitution of the Board under that Act in September, 1957, the Government, of Mysore was generating and supplying electricity under the Electricity Act of 1910. In 1945 agreements were entered into; between the Government and the respondents for supply of electricity to them at certain rates for a period of five years. The agreements expired in 1949-50. In March, 1953, the Government increased the rates. It again increased the rates from April, 1956. These revisions were not made by the Government under s. 49 of the 1948 Act as that section came into, force in 1957. The respondents did not pay at the enhanced rates and moved the High Court under Art. 226 of the Constitution for restraining the Government as also the Board, which after its constitution was added' as a party, from levying at the increased rates. It was urged on their behalf that the State Government was not entitled to increase the rates and that the dispute between them on the one hand and the Government and the Board on the other with regard to increased rates was liable to be decided by arbitration under s. 76 of the Act of 1948, which had come into force in the State of Mysore on December 30 1956. The High Court decided the first point in favour of the Government but did not decide the second. The respondents did not pay the arrears at the revised rates and the Board threatened to cut off the supply. The respondents then nominated then arbitrator under s. 76 of the Act. The Board filed applications before the District judge under s. 33 of the Arbitration Act for a declaration that the depute was not deferrable to arbitration 128 under s. 76 of the -Electricity (Supply) Act. The additional District Judge who heard the matter held in favour of the Board. The respondents moved the High Court in revision. That Court held that s. 76 applied and the respondents were entitled to call for an arbitration. The Board appealed to this Court. It was urged on its behalf that in view of the decision of the High Court on the writ petition, the claim of reference to arbitration under s. 76 of the Act was barred by res-judicata and that the expression "other person" in sub-s. (1) of that section, read ejusdem genesis could not include a consumer of electrical energy nor was such a consumer entitled to the benefit of sub-s. (2) of that section as no provision of the Act of 1948 read with the Act of 1910 authorised reference of such a dispute to arbitration. Held, that it was well-settled that in order to judge whether a decision in an earlier litigation operated As res judicata the court must consider the nature of the litigation, the issue raised in it and the actual decision. The right of the Government or the Board to revise the rates and the right of the respondents if any, to raise a dispute as to the revised rates and seek arbitration thereupon, a question which was expressly left open by the High Court, were two different matters and the decision on the former could not operate as res judicata in respect of the latter. The relevant provisions of the Act of 1910 and the Act of 1948, read together, made it clear that the Mysore State Government in the years 1953-56 was free to contract with the consumers of electricity to supply at such rates as it thought fit. when therefore the agreements with the respondents came to an end in 1949-50 it was not bound to continue the supply at the old rates. The matter rested in the region of contract, express or implied, and could not raise a question under the Electricity (Supply) -Act of 1948 so as to attract s. 76 of that Act. It was not correct to say that ss. 49 and 60 of the Act of 948 brought the dispute within the purview of the Act and that, therefore, it was to be determined by arbitration under 1. 76(1) of the Act. The revision of the rates could not be aid to be for any of the purposes of the 1948 Act as required by s. 60 of the Act nor did s. 49 of the Act, properly construed, attract s. 76(1). Ryota of Garbandho v. Zamindar of Parlakimedi (1943) R. 70 I. A. 129, referred to. 129 None of the provisions of,the 1910 Act or the 1948 Act under which certain questions were to be determined by arbitra- tion, mention the present dispute as a matter for arbitration either under s. 52 of the former or s. 76 (2) of the later. Although the words used by s. 76 (1) were of wide amplitude, it obviously implied that the question must be one that arose under the Act or had relation to it, It would be anomalous to hold that a dispute regarding revision of rates made by the Government before the Board was constituted was one under the Act of 1948. Since the dispute could not be said to have arisen under the Act of 1948, it was not necessary to decide whether the rule of ejusdeme generis applied in interpreting the expression "other person" in s. 76(1) of the Act. Per Hidayatullah, J.-The dispute relating to revision of rates was not one that could be referred to arbitration under s. 76 of the Electricity (Supply) Act, 1948. It was not necessary to invoke the rule of ejusdem generis to interpret the expression "other person" in that section so as to bring a consumer disputing the rates thereunder since no provision in the Act permitted such inclusion. William v. Golding, (1865) L. R. I C. P. 69, held in. applicable. Although s. 76 of the Act is very wide in its language, a qualification has to be read into it that the dispute it contemplates must be one relating to a matter with the purview of the Act. The Electricity Act of 1910 and the Electricity (S ply) Act of 1948, read together, clearly show that a dispute between the Government or the Board on the one hand and a consumer on the other relating to rates of supply, apart from any contract entered into, cannot at all arise under the Act of 1 948. JUDGMENT:
CIVIL APPELLATE JURISDICTION :Civil Appeals Nos. 629 to 632
of 1961.
Appeals from the judgment and orders dated August 19, 1960,
of the Mysore High Court in C.R.P. Nos. 6 11 to 613 and 622
of 1959.
M. C. Setalvad,Attorney-General for India. T. Rangaswami
Ayyanyar, B. R. L. Iyengar and P. D. Menon,for the
appellants.
130
A. V. Viswanatha Sastri, D. N. Mukherjee and B. N.
Ghosh, for respondent No. 1 (in C. A. No. 629/61).
N. C. Chatterjee, V. L. Narasimhamoorthy and S. S. Shukla,
for respondent No. 1 (in C. A. No. 630/61).
V. L. Narasimhamoorthy and S. S. Shukla, for respondent
No. 1 (in C. A. Nos. 631 and 632/61).
1962. November 15. The judgment of S. K Das, Kapur, Sarkar
and Dayal, JJ., was delivered by S. K. Das, J.,
Hidayatullah, J., delivered a separate judgment.
S. K. DAS, J.-These are four appeals on a certificate of
fitness granted by the High Court of Mysore under Art.
133(1)(c) of the Constitution. The appeals have been heard
together and this judgment will govern them all. The
appellant is the Mysore State Electricity Board, Bangalore
(hereinafter referred to as the Board) in all the four
appeals. The respondents are four textile mills, each mill
being respondent in one of the appeals. These four textile
mills are : (1) the Bangalore Woollen, Cotton and Silk Mills
Ltd., Bangalore, 12) the Minerva Mills Ltd., Bangalore, (3)
Sri Krishna Rajendra Mills Ltd., Mysore, and (4) the Mysore
Spinning and Manufacturing Co. Ltd., Bangalore.
The appeals raise a common question of law, viz., whether
under s. 76 of the Electricity (Supply) Act, 1948 (LIV of
1948), the respondents are entitled to call for an
arbitration in respect. of an alleged dispute between them
and the Board relating to the revision of rates payable by
them for electric energy supplied by the appellant or its
predecessor The provisions of two Acts, the Indian
Electricity Act, 1910 (IX of 1910) and the Electricity
(Supply)
131
Act, 1948 (LIV of 1948), have to be considered in these
appeals, and it will be convenient to cite the Indian-
Electricity Act, 1910, as the 1910 Act and the Electricity
(Supply) Act, 1948, as the 1948 Act.
We proceed first to state the facts which have led to these
four appeals. The 1910 Act and the 1948 Act were extended
to the State of Mysore on April 1, 1951, by the Part B
States (Laws) Act, 1951 (III of 1951). But the sections of
the two Acts did not come into force in the State of Mysore
all at once. Some sections of the 1948 Act came into force
at once, and some came into force on later dates. It is
sufficient for our purpose to know that s. 76 of the 1948
Act came into force in Mysore on December 30, 1956; and s. 5
thereof came into force on September 30, 1957. The Board
was constituted under s. 5 by a Government notification
dated September 27, 1957, to come into effect from September
30, 1957. Prior to the constitution of the Board. the
Government of Mysore was generating electric energy and
supplying it to consumers of both high mention and low
tension power. On different dates in the year 1945, written
agreements were entered into between the Government of
Mysore and the four textile mills for the supply of electric
energy to these textile mills at the rate of O. 55 of an
anna per unit of day power and O. 35 of an anna per. unit of
night power, subject to the payment of certain monthly
minimum charges. These agreements were for a period of five
years and expired on different dates in 1949-50. By an
order dated March 23, 1953, the Government of Mysore revised
the rates for the supply of electric energy and increased
the same to O. 65 of an anna per unit of day power and O. 45
of an anna per unit of night power. Subsequently, an expert
committee, under Chairmanship of Prof. M. S. Thacker, the
then Director of the Institute of Science, Bangalore, was
appointed to go into the question of rationalisation of the
rates for power supply in the State of Mysore.
132
On the recommendation of that Committee, the rates for the
supply of electric energy were again revised with effect
from April 1, 1956. This was done by means of an order
dated March 1, 1956. On April 26, 1956, the four textile
mills filed four writ petitions in the High Court of Mysore
in which they prayed that the State Government, and the
Board (which Board, after its constitution in 1957, was
added as the second respondent to the pending writ
petitions) be restrained from levying or collecting the
increased rates as per the order of March 1, 1956, and that
they be directed to continue to levy the same rates for the
supply of electric energy as were agreed to between the
parties in the agreements of 1945. Two points were urged in
support of these writ petitions. One was that the State
Government was not legally competent to increase the rates
for the supply of electric’ energy. The second point urged
was that there was a dispute between the textile mills and
Government and later the Board, with regard to the rates for
the supply of electric energy and such a dispute must be
decided by arbitration as provided under s. 76 of the 1948
Act. We shall read s. 76 of the 1948 Act at a later stage.
We may here observe that of the two points urged in support
of the writ petitions, the High Court dealt only with the
first point and held that the Government of Mysore ‘was’
legally competent to revise the rates for the supply of
electric energy. The second point arising out of s. 76 of
the 1948 Act the High Court did not decide. It said that it
expressed no opinion as to “‘whether or not the contention
of the textile mills that the dispute was covered by s. 76
of the 1948 Act and should, be determined by arbitration”
was sound. The High Court expressed the view that question
would have to be determined if and when the textile mills
wanted to enforce their rights under the procedure laid down
under the Arbitration Act, 1940 (X of 1940). On the finding
that the Government of
133
Mysore was legally, competent to revise the rates, the four
writ petitions were ;dismissed on January 29, 1958. By
March 31, 1958, the four textile mills were, in heavy:
arrears with regard to the payment of the increased rates
for the supply of electric energy to them, though they had
paid in full according to ,the old rates. After the
constitution of the Board in September, 1957, the Board made
repeated demands on the basis of the increased rates and
asked the textile mills; to clear all arrears due by them
according to the revised rates. The textile mills having
failed to do so, they were informed that the Board would cut
off the supply in exercise of its power under s. 24 of the
1910 Act. The textile mills thereupon contended that a
dispute had arisen between them on one side and the Boar on
the other and the dispute had to be submitted to arbitration
n under the provisions of s. 76 of the 1948 Act. The four
textile-mills then nominated their arbitrator. On November
13, 1958, the Board filed four applications before the
District judge, Bangalore, under s. 33 of the Arbitration
Act, in which it asked for a declaration that the dispute
between the four textile mills and the Board was not liable
to be referred to arbitration under s. 76 of the 1948 Act
and also for a direction to restrain the four textile mills
from seeking arbitration in respect of the alleged dispute.
These four applications gave rise to four miscellaneous
cases which were dealt with by the learned Additional
District judge, ,Bangalore, by a common order. The learned
Additional District judge allowed the petitions and held
that the-four textile mills were not entitled to the benefit
of s. 76 of the 1948 Act, because the dispute between the
Board and the four textile mills as to the rates for the
supply of electric energy was not liable to be referred to
arbitration under that section. The order of the learned
Additional District judge :by which he disposed of the four
petitions was dated April 17, 1959. From that order the
textile mills
preferred petitions in revision to the High Court of Mysore.
Four such petitions were filed in respect of the four
miscellaneous cases. By a common order dated August 19,
1960, the High Court allowed the petitions in revision
holding that s. 76 of the 1948 Act applied, and the
respondent textile mills were entitled to call for an
arbitration in respect of the dispute between them and the
Board in the matter of the revised rates. The Board then
asked for and obtained a certificate of fitness from the
High Court and on that certificate of fitness, these four
appeals have come to this court from the a fore said order
of the High Court dated August 19, 1960. It may perhaps
be stated here that after the constitution of the Board
in 1957, another expert committee was appointed to
rationalise the various tariffs prevailing in the State of
Mysore with regard to the supply of electric energy and on
the re-commendations of this Committee the rates were
revised a third time. But these last revised rates came
into effect from July 1, 1959, when presumably the revision
petitions in the High Court were pending.
Before we embark on a discussion of the principal question
involved in these appeals, it is perhaps necessary to say a
few words about the interrelation of the two Acts, the 1910
Act and the 1948 Act. Section 70 of the 1948 Act indicates
that relation. It states inter alia that no provision of
the 1910 Act or any rules made thereunder shall have any
effect so far as it is inconsistent with any of the
provisions of the 1948 Act; where, however, the provisions
of the two Acts are not inconsistent, the provisions of the
1948 Act shall be in addition to, and not in derogation of,
the 1910 Act. It would, therefore, be necessary for us to
refer to the relevant provisions of the two Acts on two
points which bear upon the principal question mooted before
us. These two points are-(a) what are the powers of the
Board
or its predecessor Government to revise the rates for the
supply of electric energy and can a dispute be raised by the
textile mills with regard to such revision; and (b) what are
the provisions in the two Acts for the settlement of
disputes by arbitration and who are the persons who can be
parties to such a dispute ? In considering the aforesaid
two points, a distinction has to be kept in mind. We are
concerned in this case with two periods. The first period
is from 1953 to September 30, 1957, when the Board was
constituted. The second period is the period of the Board
commencing from September 30, 1957, till November 13, 1958,
when the applications under s. 33 of the Arbitration Act
were made. As we have stated earlier, the revision which is
in dispute in these cases took place in the first period,
that is, before the constitution of the Board. We have
pointed out earlier that the third revision of rates took
effect from July 1, 1959, when the revision petitions in the
High Court were pending.
We think it advisable and convenient to refer to the
relevant provisions of the two Acts at a later stage and in
their relation to the points which we have stated above. We
do not think that quoting the sections at this stage and out
of relation to the two points Which fall for consideration
will serve any useful purpose. ‘We, therefore, desist from
quoting the relevant sections at this stage, but are content
to refer here to the difference in the scheme of the two
Acts, namely, the 1910 Act and the 1948 Act.
Very briefly put, the scheme of the 1910 Act was. to empower
the State Government, on an application made in the
prescribed form and on payment of the prescribed fee, if
any, to grant a license to any person to supply. electric
energy in any specified area. A per-son holding such a
license was called the licensee. The State Government had
certain powers to give directions to the licensee in regard
to
the supply of electric energy, and to control the dis-
tribution and consumption of electric energy etc. Section
28 of the 1910 act laid down that no person other than a
licensee shall engage in the business: of supplying energy
to the public except with the previous sanction of the State
Government and in accordance with such conditions as the
State Government may fix in that behalf. Therefore, under
the 1910 Act there were two classes of persons who could
supply electric energy, a licensee and a sanction holder.
The 1948 Act made some radical changes in the scheme. One
such change was that the expression ‘licensee’ was given an
ex-tended meaning to take in not merely a licensee licensed
under Part II of the 1910 Act but also a person who had
obtained sanction under s. 28 of the 1910 Act. The
expression did not, however, include’ the State Electricity
Board which was constituted for the first time under the
1948 Act. Next, the 1948 Act brought into existence two
important authorities, one called the Central Electricity
Authority under s. 3 of the Act and the other the State
Electricity Board constituted under s. 5 of the Act.
Section 26 of the 1 48 Act, to which a detailed reference
will be made later, lays down that subject 1948 Act, the
Board shall, in respect of State, have all the powers and
obligation licensee under the 1910 Act, and the 1948 to the
provisions of the whole of a Act shall be deemed to be the
license of the Board for the purposes of the 1910 Act.
There is a proviso which excepts the Board from the
obligation of certain provisions of the 1910 Act. Chapter V
of the 1948 Act contains provision indicating the nature of
the works which the State Electricity Board may undertake
and its trading procedure; it includes provisions giving the
Board power to establish its own generating stations to
supply electric energy to license and to other persons
requiring such supply Under the 1948 Act, every licensee has
to company with such reasonable directions as the Board from
time to time
137
may give for the purpose of achieving the maximum economy
and efficiency in the operations of the undertaking.
Chapter VI deals, with the Board’s finance, accounts and
audit and in it occurs s. 60 which says inter alia that all
debts and-, obligations incurred, all contracts entered into
and all matters and things engaged to be done by,, with or
for the State Government for any of, the purposes of the
1948 Act before the first constitution of the Board shall be
deemed to have been incurred,. entered into or engaged to be
done by, with or for the Board etc. Chapter VII deals with
miscellaneous provisions one of which is arbitration under
s. 76, a section which we shall quote so far as it is,
relevant for our purpose.
“70. ARBITRATION.-(1) All questions arising
between ‘the State Government or the Board,.
and a licensee or other person shall be
determined by arbitration.
(2) Where any question or matter is, by this
Act,, required to be refer-red to arbitration,
it shall be so referred-
(a) in cans where the Act so provides, to
the Authority and on such reference the
Authority shall be deemed to have been duly
appointed as Arbitrators, and the award of the
Authority shall be final and conclusive; or
(b) in other cases, to two arbitrators, one
to be appointed by each party to the dispute.
(3) Subject to the provisions of this
section, the provisions of the Arbitration
Act, 1940 (10 of 1940) shall apply to the
arbitrations under
this Act.
xx xx xx xx.”
138
The arguments presented before us on behalf of the appellant
may be put in two categories : (1) the first line of
argument is that the question of the power to revise the
rate for the supply of electric energy to the four textile
mills during the first period (1953 to 1956) by the
Government of Mysore having been decided against the
respondents by the High Court on the writ petitions, that
decision is binding on them and the respondents cannot raise
a dispute as to it by reason of the application of the
principle of res judicata, (2) the second line of argument
is that on a proper construction of sub-section (1) of s.
76, it should be held that the words “mother person”
occurring therein must be read ejusdem generis or noseitur a
soocis with ‘licensee’ and so read, a consumer of electric
energy will not be entitled to the benefit of that sub-
section; furthermore., sub-s. (2) of s. 76 will not help the
respondents, because no provision of the 1948 Act read with
the 1910 Act requires to be referred to arbitration a
dispute of the nature which is alleged to have arisen in the
present case between the Government or the Board on one side
and the textile mills on the other.
We shall now deal with these two arguments in the order in
which we have stated them. First, as to the argument based,
on the principle of res judicata. We may first refer to the
pleadings in the writ petitions. In paras, 7 and 8 of the
affidavits which the textile mills filed in support of the
writ petitions, they raised two main contentions : (a)
firstly, that the Government of Mysore had “‘no right to
increase the rates for supply of electrical energy in the
manner they have done”; it was stated that there were prior
agreements (referring to the agreements of 1945) and the
supply had to be made at the same old rates since all the
terms and conditions of the agreements were observed by both
the parties; (b) secondly, it was stated that the increase
of rates was arbitrary and unfair by reason
139
of the provisions of the Sixth Schedule of the 1948 Act. A
reference was made to s. 26 of the 1948 Act and the Sixth
Schedule thereof. That Schedule inter alia provides that
the licensee shall so adjust his rates for the sale of’
electricity by periodical revision that his clear profit in
any year shall not, as far as possible, exceed the amount of
“reasonable return” determined in accordance with certain
rules laid down in the Schedule. It was pleaded on behalf
of the textile mills that it was possible to find out from
the rules the maximum rate which a licensee could charge
under the rules, and in view of those rules, the revised
rates fixed by the Government of Mysore were unfair and ex-
cessive.
The prayer which was made in the writ peti-
tions was in these terms :
“The High Court may be pleased to issue A writ
of prohibition or a writ of mandamus or such
other appropriate writ, direction or order
restraining the respondent (meaning the
Government of Mysore and later the Board) from
levying or collecting the increased rates as
per the Government order dated March 1, 1956,
and that the respondent be directed to
continue to levy at the rates agreed to
between the parties in the agreements of
1945.”
The decision of the High Court on the writ petitions makes
it clear that the only point which was urged before the High
Court on behalf of the textile mills was that under s. 26 of
the 1948 Act the Board had all the powers and obligations of
a licensee under the 1910 Act and as the provisions of the
Sixth Schedule and the Seventh Schedule of the 1948 Act
were, under s. 57 of that Act, deemed to be incorporated in
the license of every licensee, the Board which had the same
obligations as a licensee could not demand charges for the
supply of electricity
140
which were not in consonance with the principles laid down
in those Schedules. This argument was repelled by the High
Court, and the High Court pointed out that the Board was not
a licensee within the meaning of the 1948 Act and was not
subject to the rules of the Sixth Schedule thereof. Section
26 of the 1948 Act is in these terms
“Subject to the provisions of this Act, the
Board shall., in respect of the whole State,
have all the powers and-obligations of a
licensee under the Indian Electricity Act,,
1910, and this Act shall be deemed to be the
licensee of the Board for the purposes of that
Act.”
The High Court expressed the view that having regard to the
definition clause in s.2(6) which in clear terms stated that
the Board was not a licensee within the meaning of the 1948
Act, s. 26 was of no assistance to the textile mills. The
High Court decided that the plea of the textile mills based
on the provisions of s. 26 read with the Sixth Schedule of
the 1948 Act was unsound and could not be accepted.
Now, the question is, does this decision operate as res
judicata in the matter of a reference to arbitration under
s.76 of the 1948 Act when the High Court, in express terms,
left that question open ? The learned Attorney General
appearing for the appellant has put his argument in the
following way. He has submitted that s.26 of the 1948 Act
came into force in Mysore on September 30, 1957, and the
disputed revision of rates was made by the Government of
Mysore in 1956 when s.26 of the 1948 Act was not in force
there; but under s.60 of the 1948 Act, all matters and
things engaged to be done by, with or for the State
Government for any of the purposes of the 1948 Act before
the first constitution of the Board, ,shall be deemed to
have been done by, with or for the Board etc; therefore, the
Board was entitled to ask for payment of all arrears of
electric charges at
141
the rates revised by the State Government Provided the State
Government had the right to revise the rates in 1956.
That right having been found for the State Government and
against latter could not re-agitate reference to arbitration
under the textile mills., the question and ask for a s.76
of the 1948 Act.
As against this line of argument, it has been submitted on
behalf of the textile mills that having regard to the
pleadings in the writ petitions and the decision of the High
Court there-on, all that the High Court decided was that the
Sixth Schedule of the 1948 Act did not apply to the Board
and the revised rates could not be challenged on the ground
that there was no compliance with the principles laid down
in that Schedule. The question whether the dispute shall be
determined by arbitration under S. 76 of the 1948 Act was
specifically left open by the High Court and, therefore,
that question cannot be shut out by the operation of the
principle of res judicata.
We do not think that these appeals can be decided on the
narrow ground of res judicata. There was some argument
before us as to whether a decision on a question of law
operates as res judicata, and the learned Attorney General
relying on the Full Bench decision in the Province. of
Bombay v. The Municipal Corporation of Ahmedabad(1)has
contended that a decision given by a court on a question of
law may not bind the same parties when they are litigating
with regard to a matter different from the one on which the
decision was given : but a decision of law would the binding
between the same parties as res judicata if the right that a
party claimed was the same in the former litigation as in
the later. We do not think that it is necessary for us to
consider in the abstract to what extent a decision on a
question of law, operates as res judicata between the same
parties.It is well settled that in order to decide whether a
(1) A. I. R. 1954 Bom. 1.
142
decision in an earlier litigation operates as res judicata,
the court must look at the nature of the litigation, what
were the issues raised therein and what was actually decided
in it. In the cases before us the High Court decided on the
writ petitions that the Board was not a licensee within the
meaning of s. 26 of the 1948 Act and was not bound by the
principles laid down in the Sixth Schedule thereof. This
was the actual decision of the High Court. It is indeed
true that what becomes res judicata is the “.,matter” which
is actually decided and not the reason which leads the court
to decide the “‘matter.” We find it difficult, however, to
agree with the learned Attorney General that the matter
which was actually decided on the writ. petitions
necessarily embraced or included the question of the right
of the textile mills to call for an arbitration under s. 76
of the 1948 Act. The right of the State Government or of
the Board to revise the rates, and the right, if any, of the
textile mills to raise a dispute as to the revised rates,
are two different matters and the decision on one cannot
operate as res judicata with regard to the other. As to the
right of the textile mills to call for an arbitration, the
High Court, in express terms, left that matter open.
While we do not agree with the learned Attorney General that
these cases can be decided on the narrow ground of res
judicata, we do think that a much larger question arises,
and this question has two facets, namely, whether the
alleged dispute about the revision of rates made by the
State Government in 1956 is a question which at all comes
under the 1948 Act and if it does, do the textile mills come
within the category of “other person” occurring in s. 76(1)
of that Act ?
Let us first consider whether the dispute at all comes under
the 1948 Act. What were the powers of the State Government
to revise the rates in
143
1953-1956 ? No provision of the 1910 Act as it stood at the
relevant time has been brought to our notice which imposed
any restriction on the State Government in the matter of
charging for the electric energy which it supplied, though
s. 23 of the 1910 Act and some of the clauses in the
Schedule of that Act imposed restrictions on a licensee in
the matter of charging for electricity which the licensee
supplied. The State Government was not, however, a
licensee, either under the 1910 Act or the 1948 Act, and was
not bound by those restrictions. Speaking generally, the
Board takes the place of the State Government under the 1948
Act. Section 49 of the
1948 Act states,
“Subject to the provisions of this Act and of
any regulations made in this behalf, the Board
may supply electricity to any person not being
a licensee upon such terms and conditions as
the Board may from time to time fix having
regard to the nature and geographical position
of the supply and the purpose for which it is
required :
Provided that in fixing any such terms and
conditions the Board shall not show undue
preference to any person.”
It is worthy of note that this section came into force in
Mysore on September 30, 1957, and the revision of rates made
in 1953-1956 by the State Government was not in exercise of
the powers given to the Board under s. 49. The position in
1953-1956 was that the State Government of Mysore was free
to contract with the consumers of electric energy to supply
at such rates as it thought fit. The agreements which the
State Government had entered into with the four textile
mills in 1945 had come to an end in 1949-1950 and the State
Government was not bound to continue to supply electric
energy to those mills at the old rates. The matter rested
in the region of
144
contract, express or implied and. it could not said to raise
a question kinder the 1948 Act- If it was not a question
which arose under the 1948 Act s. 76 thereof would not be
attracted thereto.
Learned counsel for the respondents has sought to meet this
difficulty ‘in the following way. He has first referred to
s. 60 of the 1948 Act. It :is perhaps necessary to quote
sub-s. (1) of that section here.
“60 (1). All debts and obligations incurred,
all contracts entered into and all matters and
things engaged to be done by, with or for the
State Government for any of the purposes o
f
this Act before the first constitution of the
Board shall be deemed to have been incurred,,
entered into or engaged to be done by, with or
for the Board; and all suits or other legal
proceedings instituted or which might but Tor
the issue of the notification under Subsection
(4) of section I have been instituted by or
against the State Government may be continued
or instituted by or against the Board.”
The argument is that the revision of rates made by the State
Government in 1956, looked at either as a matter of contract
between the parties or as something done by the State
Government in exercise of its powers to fix such rates as it
thought fit, shall be deemed under sub-s. (1) of s. 60 to
have been done by the Board, and if at the time when the
revision was made there was a dispute between the parties
which, dispute has continued with the Board by reason of the
Board demanding the arrears at the revised rates, it must be
held that the dispute arises under the 1948 Act and may be
determined by arbitration under s. 76 (1) thereof. Learned
counsel for the respondents has further argued that even if
the Board had revised the rates in exercise of its powers
under s. 49 a section which we had earlier
145
quoted, such power would be subject to the provisions of the
1948 Act and would attract S. 76. There fore, the argument
of learned counsel for the respondents is that the effect of
ss. 60 and 49 is that the dispute is one which arises under
the 1948 Act and must be determined by arbitration as
required by S. 76 (1).
We doubt the correctness of this line of argument. First,
as to S. 60 of the 1948 Act. The revision of rates which
was made by the State Government in 1953-1956 rested, as we
have said earlier, either on contract or on the unilateral
action of the State Government. In either case, it was
outside the 1948 Act and was not referable to any provision
thereof. A pre-requisite condition for the application of
S. 60 is that the contract made by the State Government or
the thing done by it must be “for any of the purposes of the
1948 Act.” If it was for the purposes of that Act and was
entered into or done by the,, State Government before the
first constitution of the Board, then the contract or the
thing done shall be deemed to have been made or done by the
Board and all suits or other legal proceedings which might
have been instituted against the State Government could be
instituted against the Board. We have earlier pointed out
that there was no provision in the 1910 Act as it stood at
the relevant time which applied to the State Government in
the matter of the rates which it charged for applying
electricity to consumers. In the 1948 Act also, there is no
section which regulates the State Government in the matter
of what it will charge for electric energy supplied by it.
That being the position, how can it be said that the
revision of the rates by the State Government gave rise to a
question under the 1948 Act ?
We now turn to S. 49. That section came into force in
Mysore, we have said earlier, on September
146
30, 1957. That section applied to the Board after is was
constituted. It had no application in 1956, and we are
unable to see how it can be said that any dispute as to the
revision of rates made by the State Government in 1956 was a
question which arose under the 1948 Act. The learned
Attorney General has indeed accepted the position that the
Board is the successor-in-interest of the State Government
and the supply of electricity is one of the purposes of the
1948 Act. That does not, however, mean that the revision of
rates in 1956 and a dispute raised as to such revision,
became a question under the 1948 Act by reason of the demand
made by the Board of the arrears due in respect of the
revised rate. The true nature of the question remained what
it was in 1956, namely, the right of the State Government to
revise the rates, a right which has no reference to the 1948
Act.
Furthermore, we are unable to accept the argument advanced
on behalf of the respondents that the expression “”Subject
to the provisions of this Act” occurring in s. 49 attracts
s. 76. Section 49 seems to give the Board a right to supply
electricity to any person not being a licensee upon such
terms and conditions s the Board may from time to time fix
having regard to the nature and geographical position of the
supply and the purposes for which it is required. ‘ The
proviso to the section states that in fixing any such terms
and conditions, the Board shall not show undue preference to
any person. We are unable to agree with the learned counsel
for the respondents that the section contemplates that the
consumers may raise a dispute with regard to the terms and
conditions and on such a dispute being raised, it shall be
determined by arbitration as required by s. 76 (1) of the
1948 Act. The expression “Subject to the provisions of this
Act” merely means that if there are any provisions
regulating the Board in the matter
147
of supplying electricity to any person not being a licensee,
then the supply by the Board will be subject to those
provisions. No provision has been brought to our notice
which regulates the Board in the matter of the charges which
it may fix for the supply of electricity. It has been
argued before us that the expression “having regard to the
nature and geographical position of the supply and the
purposes for which it is required” indicates that a dispute
may arise between the Board and the consumer of electricity
in the sense that the consumer may allege that in fixing the
charges for the supply of electricity the Board had no
regard to the nature and geographical position of the supply
and the purposes for which it was required. The expression
,,have regard to” or “having regard to” has been the subject
of judicial interpretation. In Ryots of Garbandho v.
Zamindar of Parlakimedi (1) their Lordships of the Privy
Council dealt with the meaning of the expression. They said
“The view taken by the majority of the
Collective Board of Revenue in making the
order dated October 19, 1936, which is now
complained of, is that the requirement to
“having regard to” the provisions in question
has no more definite or technical meaning than
that of ordinary usage, and only requires that
these provisions must be taken into considera-
tion.”
We do not therefore think that expression contemplates that
a Consumer of electricity can raise a dispute as against the
Board on the footing that the Board did not pay due regard
to the nature and geographical position of the supply and
the purposes for which it was required.
It is necessary here to refer to those provisions of the
1910 and 1948 Acts which require certain questions to be
determined by arbitration. In the
(1) (1945) L.R. 70 I.A. 129,168.
148
910 Act, the main section dealing with arbitration s. 52
which was in these terms at the relevant time.
“Where any matter is, by or under this Art,
directed to be determined by arbitration, the
matter shall, unless it is otherwise expressly
provided in the license of a licensee, be
determined by such person or persons as the
State Government may nominate in that behalf
on the application of either party; but in all
other respects the arbitration shall be subject
to the provisions of the Arbitration Act,
1940.
xx xx xx xx XX.”
The section lays down that where any matter is by or under
the 1910 Act directed to be determined by arbitration’ the
matter shall be determined by arbitration in the manner laid
down in that section. The scheme is that arbitration will
take place only when any matter is by or under the 1910 Act
directed to be determined_by arbitration. There are several
sections, such as s. 7 A, s. 13(2), s. 14 (3), s. 15 (5), s.
16 (3), s. 19 (2), s. 21 (4), s. 22, ss. 22-A (2) and s. 32
(3) which require certain matters to be determined by
arbitration. None of these, however, relate to the rates
for the supply of electricity by the State Government. In
the 1948 Act the main section dealing with arbitration is s.
76 which we have already set out earlier in this judgment.
There is some difference in the scheme of s. 76 from that of
s. 52. Section 76 is in two parts : the first subsection
states, in general terms that all questions arising between
the State Government or the Board on one side and a licensee
or other person on the other shall be determined by
arbitration; the second sub-section states that where any
question or matter is by the 1948 Act required to be
referred to arbitration, it shall be so referred to the
persons specified in cls. (a) and (b); in cl, (a) the
authority named by the Act shall be the
149
arbitrator and in cl. (b) the reference shall be to two
arbitrators, one to be appointed by each party to the
dispute. Sub-section (2) to s. 76 corresponds, more or
less, to s. 52 of the 1910 Act, but sub-sec. (1) of s. 76 is
more general in nature. The 1948 Act also contains several
provisions besides s. 76 (1) which require certain matters
to be referred to arbitration. These provisions are s. 19
(4), s. 40, s. 44 (3), s. 45(3), S. 55 (2) and some clauses
of the First and the Fourth Schedule. Some of these
provisions constitute the Central Electricity Authority,
constituted under s. 3 of the 1948 Act, as the arbitrating
authority. Section 19 (4) states that if any question
arises under sub-s. (1) thereof as to the reasonableness of
the terms or conditions or time therein mentioned, it shall
be determined as provided in s. 76. Now, s. 19 (1) deals
with the powers of the Board to supply electricity to any
licensee or person requiring such supply in any area in
which a scheme sanctioned under Ch. V is in force. It is
clear that s. 19 (4) does not apply in the present case. If
it did, then the respondents might be intitled to claim an
arbitration under sub-s. (2) of s. 76.
Thus, it appears from what we have stated above, that none
of the provisions of the 1910 Act or the 1948 Act make the
present dispute a matter directed or required to be referred
to arbitration either under s. 52 of the 1910 Act or s. 76
(2) of the 1948 Act. Therefore, the respondents can call
for an arbitration under s. 76 (1) of the Act, if they can
establish that the dispute in the present case is a question
which arises under the 1948 Act. It is indeed true that
sub-s. (1) of s. 76 uses words of wide amplitude. It states
that “all questions arising between the State Government or
the Board and a licensee or other person shall be determined
by arbitration.” We, however, think that it is implicit in
the sub-section that the question is one which arises under
the 1948 Act. Obviously, it could not have
150
been contemplated that any question arising between the
State Government on one side and any person on the other
shall be determined by arbitration. If that were the
meaning of the sub-section, then all litigation between the
State Government on one side and any person on the other
will have to be referred to arbitration. We do not think
that can be the meaning of the sub-section. When the sub-
section states ” all questions arising between the State
Government etc.,”‘it must mean questions which arise under
or have relation to the 1948 Act. A dispute between the
Government and a private citizen or a dispute between the
Government and its employee, unrelated to the 1948 Act,
cannot be subject of an arbitration under this sub-section.
If that be the correct interpretation, then the respondents,
before they can succeed, must establish that the dispute as
to revision of rates made by the State Government in 1956 is
a dispute which arises under the 1948 Act. It would be
anomalous to hold that a dispute regarding revision or
fixing rates of supply made by Government before the Board
was constituted arises under the 1948 Act, when even a
revision of rates made by the Board under s. 49 of the 1948
Act will not be referable to arbitration. We are,
therefore, of the view that the dispute in these cases is
not one which arises under the 1948 Act.
Now, we proceed to the third and the last question.
Assuming that the dispute is one which arises under the 1948
Act, do the respondents, viz., the four textile mills, come
within the expression ” other person” occurring in sub-
section (1) of s. 76 ? The learned Attorney General has
very strenuously contended that the scheme of s. 76 (1) is
that in the matter of a dispute, the State Government or the
Board is placed on one side as a party to the dispute and
the licensee or other person is placed on the other, and
having regard to the entire scheme of the 1948 Act, the
expression “other person” must take
151
colour from the word licensee’ preceding it. He has further
contended that the word ‘licensee’ in the ‘context of the
1910 and the 1948 Acts denotes a genus or category and on
the application of the principle of ejusdem generis the
expression “other person” means persons who are of the same
genus or category. He points out that under the 1910 Act,
licensee’ means a per-son licensed under Part 11 of that Act
to supply electric energy and ” consumer’ means any person
who is supplied with energy by a licensee or the Government
or by any other person engaged in the business of supplying
energy to the public under the 1910 Act or under any other
law for the time being in force.
There is, however, another class of persons who may supply
electric energy and that class consists of persons who may
be called sanction-holders under s. 28 of the 1910 Act. The
1948 Act includes both these classes of persons in the
definition of licensee, but does not include the Board. The
argument of the learned Attorney General is that having
regard to these definition clauses, the word “licensee’
denotes a genus or category of persons who supply electric
energy to consumers. There is a third class of persons
(other than the Board) who may supply electric energy and it
is this class of persons who are sought to be included by
the expression “other person” occuring after the expression
‘licensee’. It is clear from s. 49 of the 1948 Act that the
Board may supply electricity to any person not being a
licensee upon such terms and conditions as the Board may
from time to time fix. A similar power is given to the
Board also under ss. 18(c) and 19(1) of the Act. These
persons to whom the Board may supply electricity may, in
their turn, supply electricity to consumers on such terms
and conditions as the Board may lay down. It is clear,
therefore, that the 1948 Act contemplates a class of persons
(other than licensees) who may get their supply of
electricity
152
from the Board and may, in their turn, supply the same to
consumers within the meaning of the definition of that word
in the 1910 Act. The argument of the learned Attorney
General is that it is this class of persons who are
contemplated by the expression other person” occurring in
sub-s. (1) of s. 76.
The learned Attorney General has sought to fortify his
argument by the further circumstance that s. 76(1) obviously
does not contemplate that as between a licensee and a
consumer, there can be a dispute in respect of which the
consumer can call for an arbitration. It is argued that
this is obvious from the scheme of s. 76(1) because the
licensee or other person is put on the same side, vis-a-vis,
the State Government or the Board. The argument of the
learned Attorney General is that it will be incongruous to
hold that s. 76(1) does not take in a dispute between a
licensee and a consumer, but takes in a dispute between the
State Government or the Board on one side and a consumer on
the other, and he points out that so to hold will be to put
the Government or the Board in a much worse position than
the licensee. He has drawn our attention to the proviso to
s. 26 of the 1948 Act which excludes the Board from certain
clauses of the Schedule to the 1910 Act and thereby exempts
the Board from arbitration in respect of matters referred to
therein. The argument is that in view of the proviso to
s.26 of the 1948 Act, it could not have been contemplated by
the Legislature that the Board would be in a worse position
than a licensee.
The learned Attorney General has also drawn our attention to
ss.75 and 77 of the 1948 Act. According to him, sub-s. (3)
of s. 75 gives a clue to the meaning of the expression
“‘other per-son” occurring in s. 76 (1). Sub-section (3) of
s. 75 states inter alia that the Board may require any
licensee or person supplying electricity for public or
private purposes or generating electricity for his own use
to
153
furnish it with such information and accounts relating to
such supply or generation and in such form and manner as the
notice may specify. This subsection, so the learned
Attorney General has argued, shows that there are persons
other than licensees who may as required. by the Board,
supply electricity for public or private purposes or even
generate electricity for their own use. According to the
learned- Attorney General, these are the persons who are
referred to as “other persons’ in s. 76 (1). Section 77 is
the penal section and read with s.4 it ,makes it clear that
there is a third class of persons besides, licensees or
sanction-holders who may supply electricity for public or
private purposes. Section 4 states that it shall be the
duty of each State Electricity, Department or other licensee
or person supplying electricity for public or private
purposes or generating electricity for its or his own use,
to furnish to the Central Electricity Authority such
accounts, statistics and returns as may be required. All
these indicate clearly enough that besides licensees holding
a licence under Part II of the 1910 Act and sanction holders
holding a sanction under s. 28 of the 1910 Act, there is a
third class of persons who may supply electricity for public
or private purposes. This third class of persons is subject
to control by the State Government, The Central Electricity
Authority or the Board. The contention of the, learned
Attorney General is that a dispute between this third class
of persons on one side and the State Government or Board on
the other is the dispute contemplated by the use of the
expression “other person” occurring in sub-s.(1) of s. 76.
The learned Attorney General has placed reliance on the
decision in Williams v. Golding(1). There the question for
consideration was the meaning to be given to the expression
“‘or other person” in the 108th section of the Metropolitan
Building Act, 1855 (18th and 19th Vict. c. 122). It was
held that the expression “‘or other person” meant persons
ejusdem generis with a district surveyor, that
(1) 1865 (1) L.R.C.P. 69.
154
is, persons having an official duty. The decision in United
Towns Electric Co. v. Attorney-General-Newfoundland (1)
explains the application of the principle of ejusdem
generis, and it was held that there is no room for the
application of that principle in the absence of any mention
of genus, since the mention of a single species does not
constitute a genus.
As against these contentions of the learned Attorney
General, it has been argued on behalf of the respondents
that the main principle on which we must proceed is to give
to all the words of s. 76 their common meaning ; and the
ejusdem generis rule which is not automatically applicable
really means that there is implied into the language some
restriction which is not there ; it is argued that no
restriction can be implied from the language of s. 76 so as
to exclude a consumer from the expression “other person”
occurring in sub-s. (1) of s. 76. It has been further
submitted that the word “licensee’ preceding the expression
‘other person’ does not denote a genus or category of
suppliers of electricity so as to attract the operation of
the rule of ejusdem generis. in this connection our
attention has been drawn to ss. 28, 34, 39, 41 and 43 of the
1948 Act.
These contentions urged on both sides would require careful
consideration in a more appropriate case where a dispute
arises under the 1948 Act. In view of our finding,however,
that the dispute in the present case does not arise under
the 1948 Act, the question whether the rule of ejusdem
genesis applies or not in interpreting s.76 is purely
academic. We do not propose to determine that academic
question here.
Before we conclude, we may refer to another argument
advanced by the learned Attorney General. The learned
Attorney General has submitted that if a question between
the Board and a consumer is to be
(1) 1939-1 All. E.R. 423.
155
referred to arbitration, then in cases where the Board
itself supplies electric energy there may be thousands of
consumers each of whom may raise a dispute and call for
arbitration. In that event, there will be thousands of
arbitrations and the legislature could never have
contemplated such a situation. This is really an argument
based on inconvenience, and we do not think that
inconvenience is a decisive factor in interpreting a
statute.
Learned counsel for the respondents drew our attention to
s.51-A of the 1910 Act. That section states that where the
State Government engages in the business of supplying energy
to the public, it shall have all the powers and obligations
of a licensee under the 1910 Act. There is a proviso
similar to the proviso to s.26 which excludes the State
Government from the operation of some of the provisions of
the Act. This section is of no materiality for the
consideration of the cases before us, for it was inserted in
the 1910 Act in 1959.
For the reasons given above, we allow these appeals, set
aside the orders of the High Court dated August 19,
1960, and restore those of the Additional District judge,
Bangalore dated April 17, 1959. The appellant will be
entitled to its costs throughout,one hearing fee.
HIDAYATULLAH, J.-I agree that this appeal should be allowed.
I am of the opinion that this is not the kind of dispute
which can come within s. 76 of the Electricity (Supply) Act,
1948. That section provides
“76. Arbitration.-(1) All questions arising
between the State Government or the Board and
a licensee or other person shall be determined
by arbitration.”
156
I am of opinion that the ejusdem generis rule invoked by
the appellant to interpret ‘other person’ in the section is
not required ‘to limit the generality of the expression
because a consumer disputing rates cannot come within the
expression “other person”,regard being had to the provisions
of the Act.
The facts of the ‘case have been set out exhaustively by my
brother Das and for my purpose I need only mention that the
respondents in these appeals are four companies receiving
electrical energy in their mills from the appellant.
Formerly there was a contract under which- the rate was
fixed but the contract expired sometime in 1949-50 and the
State Government has now fixed the rates higher. The
respondents have paid the charges for the energy consumed by
them at the old rates and large arrears have accumulated
representing the difference between the charge at the old
and the new rates. The first revision of rates, it may be
mentioned, Was in 1953 and the second in 1956. The present
appellant was constituted in 1957 and in all proceedings to
which reference has been made in the judgment of my learned
brother, the appellant has been joined. The respondent
companies admit that they are liable to pay for the energy
consumed by them at the, rates agreed in the expired
agreements but demur to payment at the new rates and this
has raised a dispute which they claim must be referred to
arbitration as required by s.76.
The short question in this appeal is whether such a dispute
is compulsorily referrable to, arbitration. Of course, if
the dispute is one to which s. 76 applies and the respondent
companies in their position as consumers, are proper parties
to take advantage of s. 76, then the dispute, such as it is,
must be referred. The language of s. 76 is both wide and
intractable. But a dispute need not go to arbitration if it
is not a dispute to which s. 76 can apply.
157
Also, the section can hardly be invoked if consumers (such
as the respondents) do not come within the expression
“,other person on the principle of ejusdem generis or
otherwise.
The Electricity (Supply) Act, 1948 (54 of 1948) was passed
in 1948 and it was a measure, as the long title and the
preamble show, to rationalise the production and supply of
electricity and generally for taking measures conducive to
electrical development. The Act deals with the supply of
electrical energy and its rationalisation, whether such
energy be generated by a State Government, State Electricity
Board, a licensee under the Indian Electricity Act, 1910 (9
of 1910) or a person who, having obtained sanction under
section 28 of the 1910 Act, engages in the supply of
electrical energy. The Electricity (Supply Act, ‘1948, does
not deal with other matters relating to the supply and use
of electrical energy which are governed by the earlier Act
of 1910. The latter Act deals with the grant of licenses to
produce electrical energy,and contains provisions for the
supply, transmission and use of electrical energy by
licensees and non-licensees and generally with matters
connected thereto. Both the Acts are required to be read
together but where they differ the later Act prevails. Both
the Acts provide for arbitration in disputes. The Act of
1910 provides this by s. 52. which reads
“52. Where any matter is, by or under this
Act directed to be determined by arbitration,
the matter shall, unless it is otherwise
expressly provided in the license of a
licensee, be- determined by’ such person or
persons as the State Government may nominate
in that behalf on the application of either
party; but in all other respects the
arbitration shall be subject to the provisions
of the Arbitration Act, (1940).
158
Provided that where the Government or a State
Electricity Board is a party to a dispute, the
dispute shall be referred to two arbitrators,
one to be appointed by each party to the
dispute.”
This section enjoins arbitration only in disputes which are
expressly directed by the 1910 Act to be determined by
arbitration and admittedly none of those provisions applies.
Section 76 is more general. It enjoins that “all questions”
arising between the State Government or the Board on the one
hand and a licensee or other person on the other shall be
determined by arbitration. Though the section does not say
this, the question must be one which can, arise under the
Supply Act. The section does not mean, notwithstanding its
extreme width, that disputes which have no relation to the
Supply Act or its provisions must also be resolved by
arbitration for to hold so would mean that neither the State
Government nor the Board can sue or be sued in courts. It
is, therefore, quite plain that one must read a
qualification into the section that the dispute must be one
touching a matter within the Supply Act. Some of these
disputes are required by the Act itself to go before the
Central Electricity Authority, one of its duties being to
“act as arbitrators in matters arising between the State
Government or the Board and a licensee or other person as
provided in this Act”, vide s. 3 (1) (II). Other disputes
arc required to go before two arbitrators : one to be
appointed by each party. Indeed the four companies have
nominated their arbitrator, given a notice to the Board and
the Board has filed in the District Court four applications
under s. 33 of the Arbitration Act, in which it has asked
for a declaration that the dispute is not liable to be
referred to arbitration. This declaration was given by the
Additional District judge, Bangalore, but it was
159
disallowed by the High Court of Mysore by an order passed on
revision. The High Court granted certificates on which the
present appeals were filed.
Before dealing with the arguments, it is necessary to refer
briefly to the scheme of the two Acts to discover whether
this kind of dispute as to rates can arise between the State
Government or the State Electricity Board on the one hand
and the consumer on the other, so as to require a reference
to arbitration. The 1910 Act deals with the supply of
energy by licensees and the transmission and use thereof.
It regulates the grant of licenses to licensees and confers
on the Government the right to control the distribution,
supply and consumption of electrical energy. In addition to
the licensees the 1910 Act gives power to the State
Government (s. 28) to sanction generation, supply,
transmission and use of electrical energy by persons other
than the licensees. The 1910 Act also contains provisions
for supervising the work of licensees and persons given
sanction under s. 28 with a view to seeing that they observe
the provisions of the Act. The 1910 Act contains a schedule
divided to-day into XVI clauses. Formerly, two more clauses
which were numbered XI and XI A were also in the schedule
bringing the number of clauses to XVIII. -Clauses XI and
XI A were omitted by the Indian Electricity (Amendment)
Act 1959 (32 of1959). Clauses IX,X, XI, XIA and XII deal
with charges for the supply of electrical energy and the
fixation of the rates.
Under the Electricity (Supply) Act of 1948 the State
Electricity Board has all the powers and obligations of a
licensee under the Indian Electricity Act, 1910, and under
s. 26 of the 1948 Act that Act itself is deemed to be the
license of the Board for the purpose of that Act. There
are, however, two exceptions to this, The first exception is
mentioned in the proviso
160
to s. 26 by which certain provisions of the 1910 Act are
made inapplicable to the Board and these include clauses IX
to XII of the schedule which deal with charges for the
supply of electrical energy. The other exception is in the
definition of “licensee” in which it is said that
notwithstanding the, provisions of s. 26 the term
“‘licensee” as used in the Supply Apt 1948, does not include
the Board. In other words, though the Board carries on work
as a licensee for the purposes of the 1910 Act, it is not a
licensee in the true sense of the word And duties and
obligations of a licensee in the matter of charges and
fixing of rates for consumption of electrical energy are not
applicable to the Board. It is, therefore. quite clear that
no dispute between a consumer and the State Electricity
Board can arise under the 1948 Act in the matter of the
rates at which the Board supplies electrical energy. In the
present cases, there is a still stronger reason for coming
to the conclusion that there was no dispute under the Act
which could be referred to arbitration because the rates
‘were fixed by the State Government in 1953 and 1956 and the
Board itself came into existence in 1957. When we
questioned Mr. Vishwanath Sastri, how he said that this was
a dispute arising under the 1948 Act, he referred us to s.60
of the Supply Act which makes the Board a successor of the
State Government in respect of the matters to which the” Act
applies. He said that if the State Government was
incompetent to revise the rates in 1953 and 1956, the board
as its successor would be the appropriate party with which
the dispute can be raised. In my opinion such, a dispute
between the State Government or Board on the one hand and a
consumer on the other in respect of the rates of electrical
energy (apart from any contract that might have been entered
into) does not arise under the 1948 Act at, all. No
provision of the 1948 Act has been brought to our notice
which would embrace such a dispute’ and as I have already
pointed out above that it is only a dispute arising ‘under
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the 1948 Act which, can be compulsorily referred to
arbitration.
The next question is whether a consumer is included in the
expression “‘other person”. The learned Attorney-General
seeks to-apply the ejusdem generis rule and argues that the
expression “‘other person” must take its colour from the
word immediately preceding i. e., licensee. He. took us
through the two: Acts to show who were the persons who could
be said to belong to the genus “licensee” and said that
persons generating electricity with the sanction of :the.
State Government under s. 28 of the 1910 Act would, be
another such class belonging to the same genus. He relied
upon the case of William V.’ Golding (1), to support his
contention that even a single; category ‘may’ be regarded as
a genus to control the amplitude of the general words next
following. That case arose under an Act in which the
expression.”District Surveyor” was followed by the words
“‘other person” and the words ” other person” were given a
limited meaning on the ejusdem generis principle. The
section gave protection to ‘persons exercising official
duties and was in the nature of a public authorities
protection clause and the words “‘other person” could not be
extended to cover a private party not performing official
duties. I doubt whether that ruling can be applied to the
present case. I have already stated that the dispute must
be one which can arise under the Act- If the whole Act is
scanned it will be found that consumers have no’ place in
it. Wherever the Act uses the word ” other person” it
invariably means persons who generate and supply electrical
energy and not those who consume it. The only section to
which our attention was drawn in which a dispute was likely
to arise between the Electricity Board and a possible
consumer (not a licensee as defined in the Act) is s.49.
That section requires that the Board. may supply electricity
“to any person not being a licensee upon
(1) (1865) L. R. I C. P. 69,
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such terms and conditions as the board may from time to time
fix having regard to the nature and geographical position of
the supply and for purposes for which it is required without
showing undue preference to any person. Mr. Vishwanath
Sastri contended that a dispute might arise if the Board
unreasonably refused to supply electricity to a private
consumer or showed undue preference to someone else and such
a dispute might be taken to arbitration under s. 76. I do
not wish to pronounce any opinion upon this matter because
the present dispute is not a dispute of this character. For
these reasons I am of opinion that the Additional District
judge, Bangalore, was right in granting the declaration
sought by the appellants. 11 would, therefore, set aside
the order of the High Court and restore that of the
Additional District judge, Bangalore, with costs on the
respondents throughout. One hearing fee.
Appeals allowed.