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Judgment
P.K. Balasubramanyan, CJ.
This is an appeal by respondent No. 6 WP (C) No. 1514 of 2002 on the file of this Court. That writ petition was filed by the Damodar Valley Corporation (herein after referred to as DV Corporation) praying for the issue of a writ of mandamus directing the Jharkhand State Electricity Board to stop illegal and wrongful supply of electrical energy to its consumers at 30,000 volts or more, without permission of the DV Corporation and to restrain the illegal supply of electricity in violation of the provisions of the Damodar Valley Corporation Act, 1948, to consumers and especially to a defaulting consumer respondent No. 5 in the writ petition. The writ petition having been allowed by the learned Single Judge, this appeal has been filed by respondent No. 6 challenging that decision.
The appellant is a manufacturer of ingots by melting sponge iron and pig iron. In October, 2000, the appellant approached the DV Corporation, which generates and supplies electricity in Damodar Valley, subject to the provisions of the Damodar Valley Corporation Act, 1948. On 18.10.2000, the DV Corporation wrote a letter to the appellant informing the appellant of the requirements it should fulfil, before electrical connection could be given and supply of electrical energy commenced. According to the appellant, a sum of Rs. 4000/- was deposited by it pursuant to the communication received by it from the DV Corporation. On 18.2.2001, the DV Corporation wrote to the appellant informing that the cost of the works to be installed, if done by DV Corporation would be Rs. 31.12 lakhs, but if it is got done by the consumer itself, the supervisory charges payable to DV Corporation would be Rs. 24.91 lakhs. There was the further condition that the contract demand should be at around minimum of 5 KVA from the 25th month onwards from the date of commencement of consumption. Instead of pursuing its request with the DV Corporation and doing what was necessary to obtain supply from the DV Corporation, the appellant hurriedly approached the Jharkhand State Electricity Board (hereinafter referred to as the Electricity Board) for getting a connection and for supply of power as required by it. The Electricity Board proceeded to supply power to the appellant as required by the appellant.
Respondent No. 5 in the writ petition had earlier obtained a connection for supply of electrical energy from the DV Corporation exceeding a pressure of 30,000 volts. Respondent No. 5 defaulted. The DV Corporation, therefore, disconnected the supply of electrical energy to respondent No. 5 in the writ petition. Thereupon, respondent No. 5 applied for and obtained supply from the Electricity Board which did not even ask respondent No. 5 to pay the arrears due to DV Corporation. The DV Corporation came to know of the conduct of the Electricity Board in the matter of supply of energy to defaulting consumers, like respondent No. 5. The DV Corporation thereupon informed the Electricity Board that in terms of the DV Corporation Act, the Board had no power or authority to supply electrical energy at a pressure exceeding 30,000 volts and the act of the Board in supplying energy to its consumers including respondent No. 5 was in clear violation of the Damodar Valley Corporation Act, hence illegal and, therefore, it was bound to discontinue the supply of electrical energy at a pressure exceeding 30,000 volts to all its consumers. It was pointed out that prior permission of the DV Corporation was necessary before commencement of any such supply of energy. The electricity Board apparently did not even respond to the letters of the DV Corporation in that behalf and in that context, the DV Corporation filed the writ petition in this Court seeking to restrain the Electricity Board from supplying electrical energy to its consumers exceeding a pressure of 30,000 volts in violation of Section 18 of the Damodar Valley Corporation Act and without prior permission of the DV Corporation. The appellant herein was impleaded in view of the fact that the appellant was also being supplied by the Electricity Board, electrical energy at a pressure exceeding 30,00 volts. The relief prayed for was clearly intended to affect the appellant as well.
The case of the appellant and that of the Electricity Board in defence of the action of the Electricity Board was that under the Electricity Supply Act, 1948, the Board had the power to supply electrical energy to its consumers. In fact, it was its duty. The DV Corporation Act was enacted before the Electricity Supply Act itself was enacted. The provisions in the Damodar Valley Corporation Act, i948 could not therefore prevail over the Electricity Supply Act, whatever might have been the position relating to the provisions of the Electricity Act of 1910. In other words, the contention was that after coming into force of the Electricity Supply Act, 1948 (hereafter referred to as the Supply Act), the restriction on supply of electrical energy imposed by the Damodar Valley Corporation Act and especially by Section 18 of the Act, did not have any effect and the restriction could not prevail over the power of the Board available under the Supply Act.
5 Section 18 of the Damodar Valley Corporation Act, 1948 came into force on 27.3.1948. Section 18 of that Act provided that notwithstanding anything contained in the Indian Electricity Act, 1910 or any licence granted thereunder, no person shall, without the permission of the Corporation, sell electrical energy to any consumer in the Damodar Valley, where the energy is taken by the consumer at a pressure of 30,000 volts or more, or transmit electrical energy In the Damodar Valley at a pressure or 30,000 volts or more. There was also a restriction on generation of electricity with which we are not concerned here. On the DV Corporation also a restriction was imposed by Section 18 of that Act. That restriction was that the DV Corporation may not sell energy to any consumer requiring supply at a pressure of less than 30,000 volts except with the permission of the State Government concerned. Thus, Section 18 provided a right in the DV Corporation to supply electrical energy at a pressure of 30,000 volts or more and imposed a restriction on it on selling power to a consumer at a pressure of less than 30,000 volts. While this provision was in force, on 10.9.1948, the Supply Act was enacted and the State Electricity Boards came into existence. The predecessor of the Jharkhand State Electricity Board, the Bihar State Electricity Board, also came into existence. According to DV Corporation, in view of Section 18 of the Act, the State Electricity Board was not competent to supply electricity at a pressure of 30,000 volts or more in any area falling within the Valley, without the prior permission of the DV Corporation. It was pointed out that Section 58 of the Act provided that the provisions of the Damodar Valley Corporation Act, 1948 or any rule made thereunder shall have effect notwithstanding anything contained in any enactment other than that Act or any instrument having effect by virtue of any enactment other than that Act and hence that Act will prevail. The object of the Damodar Valley Corporation Act was also emphasized to show that the Corporation itself was created for the development of the Damodar Valley in the provinces of Bihar and West Bengal and various development activities came within the purview of that Act. Essentially, the argument in answer was that the Supply Act was a subsequent enactment, that the non obsante clause in Section 18 of the Damodar Valley Corporation Act only referred to the Indian Electricity Act, 1910 and any licence granted thereunder and consequently, the said section cannot prevail over the provisions of the Supply Act or the rights and obligations of the State Board which had come into existence in terms of that Act. It was contended that Section 58 of the DV Corporation Act cannot be taken to refer to the Supply Act since, when Section 58 of the DV Corporation Act came into force, the Supply Act had not even come into existence and hence it could not be taken that the overriding effect referred to in Section 58 of the DV Corporation Act took within its purview the provisions of the Supply Act. It was further contended that the Supply Act was a special piece of legislation dealing with the supply of electrical energy and that the Damodar Valley Corporation Act must be taken to be a general legislation for the development of the Damodar Valley and since the special law always prevails over general law, one has to look to the Supply Act to find out whether there was a restriction on the Electricity Board in supplying energy at a pressure of 30,000 volts or more. Though no such contention appears to have been raised before the learned Single Judge, Mr. Siddharth Shankar Ray, learned Senior counsel who led the arguments for the appellant also raised a contention that Section 18 of the Act requires to be read down, in that, the ''person'' referred to in Section 18(i) must be understood only as a licensee or a sanction holder recognized by the Indian Electricity Act, 1910 and as not including the State Electricity Board created under the Supply Act. An attempt was also made by Mr. Ray at the appellate stage to challenge the constitutional validity of Section 18 of the Damodar Valley Corporation Act.
We shall first refer to the attempt made to challenge the constitutional validity of Section 18 of the Damodar Valley Corporation Act. We must notice that the appellant before us was only a respondent in the writ petition filed by the Damodar Valley Corporation seeking to restrain the State Electricity Board from violating the provisions of the Damdoar Valley Corporation Act. The appellant was respondent No, 6 and while filing the counter affidavit did not raise any challenge to the constitutional validity of Section 18 of the Damodar Valley Corporation Act relied on the Damodar Valley Corporation in support of its prayer made in the writ petition. Of course, we are assuming for this purpose that as a respondent in the writ petition, the appellant could have raised such a contention. The appellant also did not file any writ petition of its own questioning the constitutional validity of Section 18 of the Damodar Valley Corporation Act, 1948 which Mr. Ray pointed out was a pre-constitutional law. No argument was also advanced before the learned Single Judge based on the constitutional validity of Section 18 of the DV Corporation Act. Neither the Damodar Valley Corporation, nor the Union of India were called upon to defend a challenge to Section 18 of the Damodar Valley Corporation Act before the learned Single Judge. Therefore, we find considerable force in the objection raised by Mr. Kapoor, Senior counsel appearing for the Damodar Valley Corporation, the respondent in this appeal, that the appellant is not entitled to raise a constitutional challenge to Section 18 of the Act in this proceeding. Of course, he also contended that there is no merit in the challenge, but that is a different aspect. Considering the nature of the prayer made in the writ petition and the defence sought to be taken by the State Electricity Board, a respondent before the learned Single Judge, and the present appellant, we are of the view that it is not proper to permit the appellant to raise a challenge to the constitutional validity of Section 18 of the Damodar Valley Corporation Act at this appellate stage. Of course. Mr. Ray pointed out that by an earlier order, the Court had permitted the appellant to implead the Union of India and the State of Jharkhand and in that situation, in view of the order dated 17.2.2003, this question has to be permitted to be agitated. As we read the order dated 17.2.2003, we do not understand it as conferring a right on the appellant to raise the question of the constitutional validity of the provision in this appeal. On our part, we are satisfied that it is not proper to permit the appellant to raise such a contention at this appellate stage, on the facts and in the circumstances of the case. We may also notice that the conduct of the appellant in first asking for a connection from the DV Corporation and then without fulfilling its obligation, rushing to the Electricity Board to get a connection apparently in clear violation of section 18(i) of the DVC Act also dissuades us from exercising our discretion in the matter of permitting this argument to be raised for the first time in appeal. We, therefore, decline to permit the appellant, who was only a respondent in the writ petition giving rise to this appeal, to raise the question of constitutional validity of Section 18 of the DVC Corporation Act at this appellate stage. We may make it clear that we are not expressing any opinion on the constitutional validity of Section 18 of the DVC Act in this case.
The contention raised by Mr. Ray is that the non obstante clause in Section 18 of the DVC Act kept out only the provisions of the Indian Electricity Act, 1910 and the conditions of any licence granted thereunder and consequently, the section cannot prevail over the provisions of the Supply Act. Counsel emphasized that the overriding effect given to the DVC Act by Section 58 thereof, also cannot affect the powers conferred by the provisions of the Supply Act, since the Supply Act came into force after the coming into force of Section 58 of the DVC Act. According to Mr. Ray. under the Supply Act by which the State Electricity Board was created; it had the power and the duty to supply electrical energy to any consumer who sought the same, on the consumer fulfilling the conditions he has to fulfil and since there was no restriction in the Supply Act regarding the pressure at which the supply could be made, the right of the Board to supply energy to the appellant could not be questioned based on Section 18 of the DVC Act. Counsel also pointed out that u/s 49 of the Supply Act, the appellant entered into an agreement with the State Electricity Board and that agreement had statutory force and the terms of the agreement would prevail, notwithstanding anything contained in Section 18 of the DVC Act. Of course, the counsel agreed that in this case, supply was at a pressure of 33,000 volts, exceeding the limit prescribed by Section 18 of the DVC Act, and that there was no dispute that no permission had been taken by the State Electricity Board from the DV Corporation before agreeing to supply energy at that pressure to the appellant and before actually supplying it.
u/s 18 of the Supply Act, the Board has a duty to supply energy to a consumer. The restriction on supply of electricity to any licensee or a person requiring such supply, could be created only by the provisions of the Supply Act and not by any other law for the time being in force. Section 70 of the Supply Act also provides that no provision of the Indian Electricity Act shall prevail over the Supply Act and that the provisions of the Supply Act shall be in addition to and not in derogation of the Indian Electricity Act. It is the contention of the appellant that since there was no restriction in the Supply Act and there a duty in the Board to supply energy to the consumer as demanded by him, the Board could not refuse the supply of energy to the appellant, whatever may be the pressure at which the supply is to be made.
The DVC Act 1948 is a piece of legislation enacted for the all round development of the region known as the Damodar Valley. In respect of the areas lying in that valley, the Corporation was created by the Act giving it power to regulate the development of the valley. Within the purview of the development as understood by that Act, the generation and supply of the electrical energy is also included. Section 12(b) of the Act provided that it shall be one of the functions of the Corporation to undertake the promotion and operation of schemes for the generation, transmission and distribution of electrical energy, both hydro-electric and thermal, This is followed by Section 18 which specifically provides that notwithstanding anything contained in the Indian Electricity Act, 1910 or any licence granted thereunder, no person shall, without the permission of the Corporation, sell electrical energy to any consumer in the Damodar Valley at a pressure of 30,000 volts or more. On a harmonious reading of the provisions of the Damodar Valley Corporation Act, it is clear that the generation and transmission of electrical energy is also included as a part of the development of the Damodar Valley and the right conferred and the restriction imposed by Section 18 of the Act on the supply of electrical energy within the Damodar Valley is consistent with the object sought to be achieved by the enactment and, in any event, it is not inconsistent with or outside the purview of the regulation of the development contemplated by the DVC Act. Therefore, the right conferred and the restriction imposed on the DV Corporation by Section 18 of the Act regarding the supply of energy cannot be said to be irrational or cannot be understood as something inconsistent with the object sought to be achieved by the Act, or something outside the purview of that Act. The only question then is whether there is anything in the Supply Act which can be taken as having an overriding effect over the restriction imposed by Section 18 of the DV Corporation Act. On going through the Supply Act, we do not find any thing which compels us to hold any provision of that Act as being inconsistent with Section 18 of the DVC Act or which compels us to find that there is any inconsistency between the relevant provisions of the two enactments. On our part, we find nothing irreconcilable in the DVC Act and the Supply Act. They can be read harmoniously. The duty of the Board to supply energy to a consumer in terms of the Supply Act can be understood as being consistent with the provisions of the DVC Act and especially Section 18 thereof. There is no compelling reason why Section 18 of DVC Act should be read as a provision inconsistent with the obligation of the Board to supply energy to a person who seeks supply of energy. After all, the elementary rule of construction is the rule of harmonious construction and it shall always be the endeaveour or the Court to try and understand the various provisions in the different enactments in a harmonious manner and try to reconcile them and only when the Court is compelled to find that there is a such a clear inconsistency that both could not exist, that the Court is obliged to discard the provision in one or the other depending on the circumstances of a given case. Here, as we have noticed, we find nothing in the Supply Act which compels us to hold that Section 18 of the DVC Act has ceased to be in force on the coming into force of the Supply Act. We may also notice that after all, only six months separated the birth of the two enactments. Both came into force in the year 1948. On a reading of the provisions of the DVC Act, and the Supply Act harmoniously, we find that the right of the Board or the obligation of the Board to supply electrical energy at a pressure exceeding 30,000 volts in the Damodar Valley is governed by Section 18 of the DVC Act which also places a restriction on the DV Corporation on supplying energy at a pressure below 30,000 without the prior permission of the Government. In other words, it is not possible to accept the argument on behalf of the appellant that on the coming into force of the Supply Act, the rights and obligations of the Board to supply energy to a consumer is governed solely by the Supply Act and Section 18 of the DVC Act must be taken to have lost its efficacy or teeth.
It was next contended on behalf of the appellant that Section 18 of the DVC Act must be read down since there is inconsistency between the DVC Act and the Supply Act, We have already held that we find it difficult to find any inconsistency between the two enactments as urged by the learned counsel for the appellant. We find that a harmonious construction of the respective provisions of the two enactments is perfectly possible and the provisions can be read and given effect to without leading to any conflict or interfering with the objects sought to be achieved by the two enactments. According to learned counsel for the appellant, the expression ''person'' occurring in Section 18 of the DVC Act must be read down to include only a licensee or a sanction holder who are the only two types of suppliers contemplated by the Indian Electricity Act, 1910 in view of the fact that the non obstante clause in Section 18 of the DVC Act refers only to the provisions contained in the Indian Electricity Act, or any licence granted thereunder. In that context, it is pointed out that going by the definition of a licensee in Section 2(b) of the Supply Act, the licensee does not include the Board or a generating company, notwithstanding the provisions contained in Sections 26 and 26A of the Supply Act. Counsel conceded that the argument that the word ''person'' should be read down would become available to the appellant only if the Court were to accept the argument that there was inconsistency between the stipulations in Section 18 of the DVC Act and the relevant provisions of the Supply Act. We have found that it is difficult to find any such inconsistency as to warrant our making an attempt to read down Section 18 of the DVC Act. "Person" has not been defined in the DVC Act. The expression has been used in its natural sense in Section 18. Consistent with the object sought to be achieved by the Act and the restriction imposed by Section 18 of the Act, we see no reason to restrict the meaning of the expression ''person'' occurring in Section 18(i) of the Act. Moreover, since we have found no such inconsistency between the two enactments, there is no occasion for reading down the expression ''person'' occurring in Section 18 of the Act. The mere fact that the Electricity Act, 191C only contemplates a licensee or a section holder, is not by itself a ground to restrict the meaning of the expression ''person'' which apparently has been used in its generic sense. In this context, it may not be forgotten that the DV Corporation Act has been enacted for regulating the development of the Damodar Valley and generation and transmission of supply of energy was also considered an essential part of that regulation of development in the valley. In the context of the enactment and the object sought to be achieved by that enactment, we see no justification in reading down the expression ''person'' occurring in Section 18 or the DVC Act. We are of the view that the expression ''person'' referred to in Section 18 of the DVC Act will take within its purview, a State Electricity Board, like the Jharkhand State Electricity Board.
There is no dispute that the Jharkhand State Electricity Board has drawn power from the grid of DV Corporation and is supplying it at a pressure of 30,000 volts or more to the appellant and some other consumers without permission from the DV Corporation. The said supply is clearly in violation of Section 18 of the DVC Act.
Learned Senior Counsel for the appellant contended that such an illegal supply has been resorted to by the State Electricity Board for a number of years in respect of consumers even including the Indian Railways and in view, of this, it was not fail" or proper for the DVC to come up with such a contention at this stage and to question the right of the Board to supply energy to the appellant at a pressure of 30,000 volts or more. Counsel pointed out that it has rather blatantly been pleaded by the DV Corporation that it was not aware of such a transgression by the Board, but such a story was unbelievable in the circumstances. Learned Senior Counsel appearing for the DVC on the other hand, contended that no right can be founded on an illegality committed by the Board and the mere fact that some illegal supplies were made by the Board to some of the consumers would not justify a finding that such an illegality should be persisted in and the Board be allowed to merrily flout Section 18 of the DVC Act. Counsel also pointed out that there was no estoppel against the statutory mandate and since Section 18 clearly mandates that the Board shall not supply energy to any consumer at a pressure of 30.000 volts or more without permission of the DV Corporation, there was no question of the DV Corporation being estopped from enforcing its right u/s 18 of the Act or from challenging the action of the Board in violating the mandate of Section 18 of the Act. We find considerable force in the submission made on behalf of the DV Corporation. After all what Section 18 requires is for the Board to get the permission of the Corporation before agreeing to supply electrical energy to a consumer at a pressure of 30,000 volts or more. We do not see any reason why the Board cannot comply with the requirements of Section 18 of the DV Act. It would be another matter if the Board seeks permission and the DV Corporation unreasonably refuses that permission. But the Board cannot take the stand that it will ignore the requirement of Section 18 of the DVC Act and would start supplying energy to its consumers against the clear mandate of Section 18 of the DVC Act. On the facts disclosed, the conduct of the Board in supplying energy to a consumer who had earlier a connection under the Corporation and who became a defaulter and whose supply had consequently been disconnected, is really an improper act and the attitude of the Board in not even asking the consumer to clear the arrears outstanding to the DV Corporation before proceeding to supply energy has necessarily to be condemned. The stand adopted in the counter affidavit by the Board that it was not concerned with the arrears due to the Damodar Valley Corporation from any consumer, cannot also be appreciated considering the fact that for achieving the purpose sought to be achieved by the DVC Act, proper coordination between the Corporation and the State Electricity Board is really a must. The act of the Board in supplying energy at a pressure of 30,000 volts or more has, therefore, to be found to be clearly illegal and we cannot accept the argument that an illegality can beget another illegality and the Board must be allowed to continue to flout the requirements of Section 18 of the Act. We, therefore, reject the argument of the learned counsel appearing for the appellant based on what he called was a practice that allegedly existed for more than 40 years. The reliance placed on the approach to Article 124 and 74 of the Constitution made in the Judges case is of no avail.
Before the learned Single Judge, the Electricity Board attempted to raise a contention that a committee called Vij Committee had been constituted which had recommended that the power of supply of electrical energy may be left to the Board without any restriction as contained in the DVC Act and that this report of the Vij Committee has been accepted by the Union Government. This was not a correct statement, to put it most charitably. It appears to us that there was clearly an attempt to mislead this Court. The position was got clarified when the Union of India filed an affidavit with supporting documents before the learned Single Judge clearly taking the stand that Vij Committee report has not been accepted. It is expected that a State Electricity Board would verify the facts before filing pleadings in a case. It is not expected of a Board to make a blatantly untrue statement or to take a stand just to support its action, the legality of which had been questioned without verifying the facts. Unless and until the State Electricity Board stops aiding and abetting persons who are seeking to bye pass or flout the law the position of the Board cannot improve, nor can the supply of energy in the State improve. The State Electricity Board must realize that it has been created for the protection of the State and its citizens and has the task of ensuring equitable and proper distribution of electrical energy and enforcing the relevant provisions of the Act governing such distribution and supply and of not favoring any person, consumer or licensee seeking to by-pass the legislation enacted in the interests of fair distribution of energy. The conduct of the Board in trying to create an impression that the report of a committee which, in fact, was not accepted, had been accepted, requires to be condemned. The learned Single Judge has granted relief to the DV Corporation finding that the State Electricity Board has violated Section 18 of the DVC Act and such violation cannot be permitted.
In view of our reasoning and conclusions as above, we are fully in agreement with the conclusion of the learned Single Judge. In that situation, we find no reason to interfere with the decision of the learned Single Judge in this appeal. Hence, we confirm the decision of the learned Single Jude and dismiss the appeal. The interim order passed in this case would also stand vacated. We make no order as to costs.
S.J. Mukhopadhaya. J.
I agree.