Appeal No 706 of 1965
432 Appeal from the judgment and decree dated September 22 1964 of the Rajasthan High Court in DB First Appeal No 67 of 1956
Purshottam Trikamdas and 1
N Shroff for the appellant
BD Sharma for the respondent
The Judgment of the Court was delivered by Hegde J
This is plaintiff s appeal
The Amalgamated Electricity Co Ltd is the plaintiff in the suit from which this appeal arises
It sued the Municipal Committee Ajmer through its Chairman in suit No 21 of 1951 in the court of Sub Judge first class Ajmer
In that suit it claimed a sum of Rs 9352021 as Surcharge due under certain notifications issued by the Chief Commissioner of Ajmer
Out of the said sum a sum of Rs 28837125 was claimed as being due as SUrcharge on the bills issued by it in respect of the electricity supplied by it to the defendant for street lighting
A sum of Rs 58143122 was claimed as Surcharge on its bills in respect of the electricity utidised for pumping water in pursuance of one of its contracts with the defendant
The balance amount was claimed as interest on the amount claimed
That suit was resisted by the defendant on various grounds
The trial court substantially allowed the plaintiff s claim and decreed the suit in a sam of Rs 44461119 with interest and proportionate costs
The High Court of Rajasthan accepting the appeal No 67 of 1956 of the defendant dismissed the plaintiff s suit
After obtaining a certificate under article 1331 a of the Constitution the plaintiff has filed this appeal
The High Court of Rajasthan dismissed the plaintiff s suit on two grounds namely 1  that before filing the suit no notice as required by section 233 of the Ajmer Merwara Municipalities Regulation 1925 has been given and 2 the notification of the Commissioner imposing the impugned Surcharge is either beyond the scope of the provisions of Bombay Electricity Surcharge Act 1946 Bombay Ac t 19 of 1946 to be hereinafter referred to as the Bombay Act as extended to Ajmer by the Central Government in pursuance of the powers conferred on it under the Ajmer Merwar Extension of Laws Act 1947 or in the alternative the provisions of the Bombay Act are ultra vires cl
12 of the schedule to the to be hereinafter referred to as the Electricity Act
In view of the above findings the other pleas taken by the defendant were not examined
We have to see whether the decision of the High Court is in accordance with law
The material facts of the case are as follows A company known as Trustees Corporation I Ltd took out license from the Chief Commissioner of Ajmer on 19 1 1928 433 under the provisions of the Electricity Act authorising it to geneate and supply electrical energy within the municipal limits of Ajmer and such extensions beyond those limits as may be permitted by the Chief Commissioner from time to time in accordance with the conditions mentioned in the licence Exh 1 
Someime later the said company transferred all its rights and liabilities Ajmer Electric Supply Co Ltd The Ajmer Electric Supply Co Ltd was later amalgamated with the plaintiff s company as
ber the scheme of transfer approved by the Bombay High Court
Fhe Ajmer Electric Supply Co Ltd had en tered into an agreenent Exh 20 on 31 3 1932 with the Municipal Committee Ajmer for supplying electricity for street lighting and maintaining the street lighting equipments
By another agreement Exh 21  dated 15 3 1939 it undertook to pump water from the wells belonging to Municipal Committee at Bhaonta
On September 3 1948 the Governmen t of India in exercise of the powers conferred on it by section 2 of Ajmer Merwar Extension of Laws Act 1947 extended the Bombay Act to the province of Ajmer Merwar subject to certain modifications
That notification among other modifications omitted the words or in any contract for energy or for maintenance of street lighting equipment found in section 6 of the Bombay Act
The other modifications made are not relevant for our present purpose
After the extension of the Bombay Act to Ajmer Merwar the Ajmer Electric SuppLy Co Ltd applied under section 3 of the Bombay Act to the Chief Commissioner for imposing Surcharge as provided in that section to meet its increased cost
On September 19 1948 the Chief Commissioner directed that the Bombay Act as modified shall apply to two undertakings including Ajmer Electric Supply Co Ltd Ajmer
There was another notification on September 19 1948 but that is not relevant for our present purpose
On March 29 1949 the Chief Commissioner issued the notification herein set out below in substitution of the notification issued by him on September 19 1948 CHIEF COMMISSIONER S OFFICE AJMER
No 6548 LSG
Dated Ajmer the 29th March 1949
To be substituted for the notification bearing the same number and date
Orders by the Chief Commissioner Ajmer Merwara
NOTIFICATION No F8 4 IICC H Dated Ajmer the 19th September 1948
434 In exercise of the powers conferred by sub sec
2 of sec
3 of the Bombay Electricity Surcharge Act 1946 XIX of 1946 as extended to the Ajmer Merwara by the Government of India Minis try of Home Affairs Notification No 8948 Judicial dated the 3rd September 1948 and in accordance with the recommendations made by the Electricity Advisory Board constituted by him under sec
35 of the  the Chief Commissioner is pleased to fix for a period of two years from the date of this Notification the following rates of surcharge on the charges for energy leviable by the Ajmer and Beawar Electric Supply Companies  1  For supplies made under standard tariffs i Ajmer Electric Supply Co Ltd Ajmer 20 ii Beawar Electric Supply Co Ltd Beawar 15 2  For supplies made under special contracts other than those made with Municipal Committee for street lighting
Ajmer Electric Supply Co Ltd Ajmer and Beawar Electric Supply Co Ltd Beawar 0007 of an anna per unit Kw hour per rupee increase in the price of oil beyond the basic price of Rs 90 per ton
3  For supplies for Municipal Street Lighting made under special contracts Ajmer Electrictiy Co Ltd Ajmer Beawar Electric Supply Co Ltd Beawar
O 128 of an anna per month per each rupee advance in price of fuel oil beyond the basic price of Rs 90 per ton for each 60 wattage lamp and prorate for lower and higher wattage lamps
The surcharge is leviable on the actual energy consumed and not on the standing charges of motors and meters
By order Sd AN Lal Secretary to the Chief Commissioner Ajmer Merwara
 On the basis of that notification the Ajmer Electric Supply Co Ltd called upon the defendant by means of a lawyers  notice dated 16 8 1951 to pay the surcharge detailed therein
As the defendant did not comply with the demand made the plaintiff after the amalgamation mentioned earlier instituted the present suit
435 It is not necessary to deal with the various pleas taken by the defendant in resisting the plaintiff s suit
Some of those pleas have been given up some have not been considered by the High Court
The plaintiff s suit has been dismissed by the High Court solely on the grounds mentioned above
If the plaintiff succeeds satisfying this Court that the view taken by the High Court is wrong then the matter will have to go back to the High Court for decision on questions left undecided
We shall first take up the question of notice under section 233 of Ajmer Merwar Municipalities Regulation
The contention of the defendant is that the notice issued is invalid inasmuch as the same was issued on behalf of the Ajmer Electric Supply Co Ltd after that company was amalgamated with the plaintiff
The next ground of attack is that the said notice is invalid because it does not set out the name and the place of abode of the intending plaintiff
These contentions have commended themselves to the learned Judges of the High Court
Section 233 of the Ajmer Merwar Municipality Regulation prescribes Section 233Suits against Committee or its officers
No suit shall be instituted against a Committee or against any member officer or servant of a Committee in respect of any act purporting to be done in its or his official capacity until the expiration of one month next after notice in writing has been in the case of a Committee delivered or left at its office and in the case of an officer or servant delivered to him or left at his office or place of abode stating the cause of action and the name and place of abode of the intending plaintiff and unless the plaint domains a statement that such notice has been so delivered or left Provided that nothing in this section shall apply to any suit instituted under section 54 of the 
I of 1877
 So far as suits against public officials are concerned this section is an exact reproduction of section 80 Civil Procedure Code
But section 80 Civil Procedure Code has two parts namely 1 Suits against Governments and 2 Suits against public officers in respect of acts purporting to be done by those public officers in their official capacity
So far as suits against Governments are concerned they cannot be validly instituted without giving a notice as required by section 80 Civil Procedure Code
But when we come to suits against public officers section 80 Civil Procedure Code applies only to suits in respect of any act  purporting to be done by a public officer and 436 that in his official capacity
Hence before section 80 can be relied on in any suit against a public officer it must be shown that it is a suit in respect of an act  purporting to be done by him in his dial capacity
In view of the provisions of the General Clauses Act the expression act  also includes illegal omissions
Therefore if the suit does not relate to any act  or illegal omission  purporting to be done by a public officer in his official capacity section 80 will not have any application
Similar is the position under section 233 of the Ajmer Merwar Municipalities Regulation
The stand taken by the plaintiff is that in the instant case no notice under section 233 of Ajmer Merwar Municipalities Regulation was necessary alternatively it was urged that if such a notice is necessary the notice issued complies with the requirements of law
If the first alternative is accepted there is no need to go into the question as to the validity of the notice issued
In the suit the plaintiff does not complain of any act done by the defendant nor does it say that the defendant was guilty of any illegal omission
The plaintiff s case is as mentioned earlier that in view of the notification issued by the Chief Commissioner on March 29 1949 Exh 13B it was entitled to recover from the defendant the amount claimed
The stand taken by the defendant is that the levy of surcharge is invalid
Whether the contention is sustainable or not there is no doubt that it is bona fide contention
That contention had commended itself to the High Court
Every omission is not an illegal omission
Before an omission can be considered as an illegal omission it must be shown that the official concerned had omitted to discharge some official duty imposed on him in public interest
The omission in question must have a positive content in it
In other words the nondischarging of that duty must amount to an illegality
We are told that under the provisions of the Ajmer Metwar Municipalities Regulation it is the duty of the Municipal Council to discharge all its liabilities
In that connection reference was made to certain provisions of the said Regulation
But the failure on the part of the Municipality to discharge its liabilities will not ordinarily become illegal omissions
The municipality or its members or office bearer cannot be punished for their failure to pay the amount due to the plaintiff
To put it differently the omission complained does not entail any penal consequence for the public official responsible for it
If every omission is considered as an illegal omission and therefore an act  either within the meaning of section 80 Civil Procedure Code or section 233 of the Ajrner Merwar Municipalities Regulation then the distinction between the first part of section 80 Civil Procedure Code and its second part disappears
If that is so k follows that in every suit against a public officer relating to his public duty the issuance of a notice is a condition precedent
That in our opinion would be rewriting the section
437 It is true that in Bhagchand Dagdusa Guirathi and ors
vs Secretary of State for India1 the Privy Council laid down that section 80 should be strictly complied with and is applicable to all forms of action and all kinds of reliefs claimed against the Government
But here in this case we are not concerned with a claim against the Government
Therefore that decision has no application to the facts of the present case
The case which is relevant for our present purpose is Revati Mohan Das vs Jatindra Mohan Ghosh2
Therein a manager of an estate appointed under section 95 the Bengal Tenancy Act 1885 executed a mortgage in favour of the predecessor of the plaintiff therein after obtaining the sanction of the local court
The successor of that manager failed to discharge the mortgage debt
Consequently the plaintiff brought a suit against him for obtaining a mortgage decree
That suit was resisted on the ground that the plaintiff had failed to give the notice prescribed by section 80 Civil Procedure Code before instituting the suit
That plea succeeded in the High Court
The Judicial Committee of the Privy Council reversed the decree of the High Court holding that the failure on the part of the resportdent to discharge the mortgage cannot be considered as an act within the meaning of section 80 Civil Procedure Code
In the course of the Judgment Sir George Lowndes speaking for the Board observed thus On the alternative contention their Lordships are unable to hold that non payment by respondent 1 is an act purporting to be done by  the manager in his official capacity 
Under the general definitions contained in section 3 an act  might include an illegal omission but there clearly was no illegal omission in the present case
It is also difficult to see how mere omission to pay either interest or principal could be an act purporting to be done by the manager in his official capacity emphasis supplied
At this stage we would like to emphasis the observations of their Lordships but clearly there was no illegal omission in the present case
 This observation shows that a mere omission to discharge the debt without any thing more is not an illegal omission
It is true that in that case the court proceeded further and observed The mortgage imposed no personal liability upon the manager but merely provided that if payment was not made the mortgagee would be entitled to realize his dues by sale through the Court and this was all that the appellant sought by his suit
The manager for the time being no doubt had an option to pay in order to save the sale but failure to exercise an option is not in any sense a breach of duty
The appellant made no claim against 1 54 IA 338
2 61 IA 171
438 respondent 1 personally
He was there only as representing the estate of which the sale was sought
In their Lordships  opinion such a suit is not within the gambit of section 80 and no notice of suit was required
 It is possible to read this passage as merely setting out the facts of that particular case and the equitable considerations arising therefrom and not as the ratio of the decision
Even if we consider that passage as one of the reasons given in support of the decision the strength of the earlier ratio is not weakened
The interpretation placed by us on that decision is the same as that placed by the Calcutta High Court in Debendra Nath Roy vs Official Receiver1
Mr Sharma read to us several decisions of the various High Courts wherein it has been laid down that a suit brought in respect of breach of contract by a public official is an act within the meaning of section 80 Civil Procedure Code
Similarly illegal omissions have been held to be acts  under that section
In some of the decisions it was held that the second part of section 80 Civil Procedure Code applies only to actions on torts committed by public officials in the discharge of their public functions
There is conflict of judicial opinion on that point
For our present purpose it is not necessary to resolve that conflict
Suffice it to say that in the present case the plaint does not complain of any act  or even an illegal omission on the part of the defendant
Hence we agree with Mr Purshottam Tricumdas that no notice under section 233 of the Ajmer Metwar Municipalities Regulation was necessary before instituting the suit
In that view it is not necessary to consider whether the notice relied on by the plaintiff meets the requirements of the law
This takes us to the validity of the notification issued by the Chief Commissioner of Ajmer on March 29 1949 levying certain surcharges on the consumers of electricity supplied by the plaintiff
Section 6 of the Bombay Act as it originally stood read The provisions of the Act shall apply notwithstanding anything in any other law or any licence or sanction granted under the Principal Act or in any contract for energy or maintaining street light equipments
 The notification extending this Act to Ajmer Metwar modified that section and the modified section reads The provisions of the Act shall apply notwithstanding anything in any other law or any licence or sanction granted under the principal Act
 The words Principal Act  refer to the Electricity Act
On the basis of this modification it is urged on behalf of the respondent 1 AIR 1938 Cal
191 439 that the Chief Commissioner was not competent to levy the impugned surcharge
From the fact that certain words were omitted in section 6 we are asked to assume that the Government of India intended that no surcharge should be levied on the bills issued to the defendant for the supply of electrical energy for street lighting
We do not know why the words in question were omitted from section 6
But to our mind the omission of those words does not in any manner affect the provisions contained in sections 3 and 4 the Bombay Act
Now we shall set out sections 3 and 4 of the Bombay Act
They read Section 3   1  Any license or sanction holder may apply to the Provincial Government in the prescribed form for fixing a rate of surcharge on the charges for energy or street lighting equipment leviable by him under the terms of his licenee sanction or contract as the case may be
Such application shall be accompanied I by such calculations as may be prescribed
2 On receipt of an application under sub section 1 the Provincial Government may if it considers that a surcharge is desirable in the case of such licensec or sanction holder by order notified in the Official Gazette fix the rate of surcharge
3 The rate of surcharge fixed under sub section 2 shall not exceed a 3312 per centuries in the case of undertakings where diesel oil is used for the generation of energy b 20 per centuries in the case of undertakings where steam is used for the generation of energy
4 In the order fixing the rate of surcharge under sub section 2 the Provincial Government may specify such conditions as it may think fit to be observed by the licensee or sanction holder
5 Without prejudice to the generality of the power contained in sub section 4 the Provincial Government may require the execution of an undertaking in the prescribed form by the licensec or sanction holder that his profits in excess of the prescribed limits shah be transferred to a Rates Stabilization Reserve for prescribed purposes
6 The Provincial Government may at any time enhance or reduce by a like order the rate fixed under sub section 2
 Upon the rate of surcharge being fixed by the Provincial Government from time to time in accordance with this Act it shall not be lawful for the licensec or sanction holder concerned except with the previous sanction of the Provincial Government to charge at other than charges surch arged at the rate for the time being so fixed Provided that no surcharge or any subsequent revision thereof shall affect charges leviable for any period not covered by the relevant order of the Provincial Government
 The provisions contained therein clearly empower the Chief Commissioner to levy surcharge on the bills for the supply of electricity for street lighting
Section 4 empowers the licensec to collect from the consumer the surcharge levied
Municipal Councils are not excluded from the operation of sections 3 and 4 of the Bombay Act as extended to Ajmer Merwar
Similarly electrical energy supplied on the basis of a contract is not excluded from the operation of section 3
That much is clear from the language of that section
We see no reason to read into that section an exception in the case of Municipal Councils or electricity supplied for street lighting under a contract
Section 6 does not in any manner cut down the operation of sections 3 and 4
In our opinion that section as it stood originally or as modified has no impact on sections 3 and 4
Charges for the supply of energy for street lighting are ordinarily payable by the Municipal Councils
Generally speaking it is the Municipal Councils that provide street lighting
Possibly section 6 was included in the Bombay Act as a matter of abundant caution
It is not denied that the Bombay legislature had competence to enact that Act
We shall presently examine the contention that Act is ultra vires the provisions of Electricity Act and therefore the provisions of that Act should not be given effect to
But for the present we are assuming that Act is valid and proceed to examine the impact of section 6 on sections 3 and 4
We think that section 6 does not in any manner control sections 3 and 4
The intention of a legislature or its delegate has to be gathered from the language of the statutory provisions and not from what it failed to say
If because of modification of section 6 the provisions contained in sections 3  4 could not be applied in the case of supply of electrical energy for street lighting under a contract then it could have been said that the notification issued by the Chief Commissioner was without the authority of law
But that cannot be said in this case
The provisions in sections 3 and 4 are self contained provisions
For taking action on the basis of those sections no assistance is needed from section 6
Therefore we think the High Court was wrong in opining that the notification issued by the Chief 441 Commissioner levying surcharge on the price of the electrical energy supplied for street lighting was without the authority of law
We shall now examine the contention that the notification issued by the Chief Commissioner on March 29 1949 is ultra vires the provisions of the Electricity Act
On this aspect the argument on behalf of the respondent proceeded thus Section 3f of that Act provides that the provisions contained in the Schedule shall be deemed to be incorporated with and to form part of every licence granted under this Act save in so far as they are expressly added to varied or excepted by the licence and shaH subject to any such additions variations or exceptions which the State Government is hereby empowered to make apply to the undertaking authorised by the license Proviso is not relevant for our present purpose Clause 12 of the Schedule as it stood at the relevant time read XII
CHARGE FOR SUPPLY FOR PUBLIC LAMPS
The price to be charged by the licensec and to be paid to him for energy supplied for the public lamps and the mode in which those charges are to be ascertained shall be settled by agreement between the licensee and the State Government or the local authority as the case may be and where any difference or dispute arises the matter shall be determined by arbitration
 The argument proceeded that the Electricity Act which is a central legislation lays down that the price to be charged by the licensee and to be paid to him for the electrical energy supplied for street lighting shall be settled either by agreement between the licensee and the State Government or the local authority as the case may be or and where any difference or dispute arises the matter should be determined by arbitration the price so fixed cannot be altered in any manner levying surcharge is but one mode of enhancing the price to be paid such a course is violative of cl 12 of the Schedule in the Electricity Act hence it must be held that the Chief Commissioner had no power to levy any surcharge which would interfere with the mandate of cl 12
It was not said before us nor before the High Court that the Bombay legislature had no competence to enact the Act
Electricity is a concurrent subject both under the Constitution as well as under the Government of India Act 1935
Therefore quite clearly the Bombay legislature had competence to provide for the levy of surcharge so long as the relevant provision did not conflict with any provision in any central Act
Hence the question is whether sections 3 and 4 are in conflict 442 with cl 12 of the Schedule of the Electricity Act  If the two can co exist then there is no question of conflict between the two
We see no conflict between cl 12 of the Schedule in the Electricity Act and sections 3 and 4 of the Bombay Act
Clause 12 prescribes a procedure for settling the price of electricity supplied by the licensee for street lighting
It merely lays down the machinery for settling the price if there is dispute between the contracting parties
That clause does not fix the price to be paid or even the maximum price payable
We fail to see how that clause takes away the power from the State legislature to impose additional burden on the consumer
All that clause means is that the licensec cannot dictate his terms to the authority responsible for street lighting
We are unable to agree with the learned Judges of the High Court that in incorporating cl
12 of the Schedule the central legislature intended that under no circumstance the liability of the consumer can be increased beyond what is asked during the continuance of the contract
In our opinion it imposes no fetters on the powers of the provincial legislatures in the matter of hanging the price of the electricity supplied by the licensec for street lighting
For the reasons mentioned above we are unable to agree with the High Court that either the suit is bad because of want of a valid notice under section 233 of the Ajmer Merwar Municipalities Regulation or that the notification imposing surcharge is invalid for any reason
Under the notification imposing surcharge the plaintiff is not entitled to get any additional sum as regards the pumping of water
Under that notification to the extent it is applicable to this case surcharge is levied only on the price of electrical energy supplied under a contract for street lighting and not in respect of the price of the electrical energy used for pumping water
Under Exh 21 the plaintiff entered into an agreement to pump water for a fixed consideration
For so doing it may have to utilise the electricity produced by it but that does not amount to supplying electricity to the Municipal Council much less supplying electricity for street lighting
From el 8 of that agreement it is seen that the parties to that agreement contemplated the pumping of water by using Oil Engines though ordinarily it was expected that it will be done by electrical energy
It is true that el 20 of the agreement provides that the Municipal Council shall have first claim over other consumers for the supply of energy for pumping such quantity of water as may be required from the wells at Bhaonta
In construing the true nature of the contract entered into between the parties
the contract has to be read as a whole and if so read it is clear that what the plaintiff undertook was to pump water from the wells in question and not to supply any electrical energy
443 Hence we are in agreement with the learned Judges of the High Court that the plaintiff s case in this regard should fail
Mr Sharma urged that the High Court had not thought it necessary to decide certain contentions advanced on behalf of the defendant in view of its conclusions set out earlier
He told us that the defendant had pleaded that the plaintiff failed to prove the quantum of surcharge payable by the defendant
It also contended that the notification under which the surcharge is levied cannot have retrospective operation and that no surcharge was leviable under that notification on the charges in respect of maintaining street lighting equipments
According to the learned Counsel for the plaintiff there is no merit in any one of these contentions
As mentioned earlier the High Court has not gone into these contentions
It is for that court to examine those contentions
This court does not ordinarily examine contentions which have not been examined by the appellate court
It is best that these questions should be gone into by the High Court
In the result we allow this appeal set aside the judgment of the High Court and remand the case back to the High Court for deciding the issues that remain to be decided
The costs of this appeal shall be costs in the cause
VPS Appeal allowed


Summary:
The Ajmer Electric Supply Co Ltd a licensee under the  entered into two contracts with the respondent Municipal Committee i for supplying electricity for street lighting and ii pumping water from the wells belonging to the respondent at a particular place
The Bombay Electricity Surcharge Act 1946 was extended to the province of Ajmer Metwar subject to certain modifications
Thereafter the Ajmer Electric Supply Co applied under section 3 of the Bombay Act to the Chief Commissioner for imposing the surcharge provided in that section to meet its increased cost
The Chief Commissioner issued a notification and on the basis of that notification the Ajmer Electric Supply Co called upon the respondent by a notice to pay the surcharge detailed therein with respect to the two contracts
As the respondent did not comply with the demand the appellant with which the Ajme r Electric Supply Company was amalgamated filed a suit for the recovery of the surcharge
The trial Court decreed the suit but the High Court set aside the decree on the grounds 1 Before filing the suit a notice as required by section 233 of the Ajmer Metwar Municipalities Regulation 1925 was not given 2 The Commissioner s notification imposing the impugned surcharge was beyond the provisions of the Bombay Act because of the omission of certain words from section 6 of that Act as extended to Ajmer Merwara and 3 The relevant provisions of the Bombay Act
namely sections 3 and 4 were ultra vires el
12 of the Schedule to the Indian Electricity In appeal to this Court HELD 1 No notice under section 233 of the Ajmer Merwar Municipalities Regulation was necessary before instituting the suit
438 E Under the section a notice is necessary when the suit is filed against the Committee only in respect of any act done in its official capacity
The expression act  includes an illegal omission but
before an omission can be considered as an illegal omission it must be shown that there was an omission to discharge some official duty imposed in public interest
That is the non discharge of the duty must amount to an illegality entailing penal consequences
436 B G In the present case the appellant s contention was that it was entitled to recover from the respondent the amount of surcharge claimed while the respondent s case was a bonafide contention namely that the levy of 431 surcharge was invalid
Under the Regulation it was the duty of the respondent to di scharge all its liabilities but failure to do so would not ordinarily make it an illegal omission because the respondent or its members or office hearers could not be punished for their failure to pay the amount due to the appellant
436 D G Revati Mohan Das vs Jitendra Mohan Ghosh 61 IA 171 applied
Debendra Nath Roy vs Official Receiver AIR 1938 Cal 191 approved
Bhagchand Dagdusa Gujrathi vs Secretary of State for India 54 IA 338
distinguished
2 The provisions of section 3 of the Bombay Act empower the Chief Commissioner to levy surcharge on the bills for the supply of electricity for street lighting
Section 4 empowers the licensec to collect from the consumer the surcharge levied
Municipal councils are not excluded from the operation of sections 3 and 4 of the Act as extended to Ajmer Metwar
Similarly electrical energy supplied on the basis of a contract is not excluded from the operation of section 3
For taking action on the basis of those sections no assistance is needed from section 6 and so section 6 as it stood originally or as modified does not in any manner cut down the operation of as 3 and 4
Therefore the High Court was Wrong in its decision that the notification issued by the Chief Commissioner levying surcharge on the price of electrical energy supplied for street lighting was without the authority of law
440 C E H 441 A 3 Since Electricity  is a concurrent subject the Bomhay Legislature was competent to provide for the levy of surcharge so long as the relevant provision did not conflict with any provision in any Central Act
Clause 12 of the Schedule to the  which is deemed to form part of the licence under section 3f of the Electricity Act does not conflict with sections 3 and 4 of the Bomhay Act
The clause merely prescribes a procedure for settling the price of electricity supplied by the licensec for street lighting and lays down the machinery for settling the price if there is a dispute between the contracting parties
It only means that the licensee cannot dictate its terms to the authority responsible for street lighting but does not fix the price to be paid or even the maximum price payable
It imposes no fetters on the powers of the Provincial Legislature in the matter of enhancing the price of electricity supplied by the licensec for street lighting
The High Court was therefore wrong in holding that by incorporating cl 12 into the licenee the Central Legislature intended that under no circumstances the liability of the consumer can be increased heyond what was agreed during the continuance of the contract
441 H 442 A D 4 Under the notification imposing surcharge the appellant however was not entitled to get any additional sum as regards the pumping of water
Under the notification surcharge is levied on the price of electrical energy supplied under a contract
In construing a contract it must be read as a whole
So read under the second contract the appellant only undertook to pump water from the wells and not to supply any electricat energy
442 E F H