l Appeal No 897 of 1963
Appeal from the judgment and order dated October 4 1962 of the Kerala High Court Ernakulam in Writ Appeal No 17 of 1962
188 AV Viswanatha Sastri Arun B Saharaya and Sardar Bahadur for the appellant
VP Gopalan Nambiar Advocate General for the State Kerala and VA Seyid Muhammad for the respondent
The Judgment of the Court was delivered by Bachswat J
The short question in this appeal is whether the proposed acquisition of the electrical supply undertaking of the appellant by the State of Kerala in pursuance of the notice exhibit G dated November 20 1959 is authorised by section 6 of the 
The appellant is the holder of a license for the supply of electrical energy in Ernakulam and other places in Cochin
The license was originally granted to the managing agents of the appellant under the Cochin Electricity Regulation III of 1902 then in force in Cochin and subsequently assigned to the appellant with the permission of the Cochin Government
On the merger of Travancore Cochin with the Union of India the was made applicable by the Part B States Laws Act 1951 Act III of 1951 to the Travancore Cochin area and the Cochin Electricity Regulation stood repealed
The Act 54 of 1948 was also made applicable to the Travancore Cochin area by the Part B States Laws Act 1951
On March 31 1957 the Kerala Electricity Board was constituted and by s71 of Act 54 of 1948 any right and option to purchase the undertaking of the licensee under the was transferred to and vested in the Board
Now the right or option to purchase the undertaking of a licensee under s71 of the then in force was exercisable on the expiration of such period not exceeding fifty years and of every such subsequent period not exceeding twenty years as shall be specified in this behalf in the license
 Sub section 4 of s7 provided Not less than two years  notice in writing of any election to purchase under this section shall be served upon the licensee by the local authority or the State Government as the case may be Clause 15a of the license held by the appellant provides The option of purchase given by Section 7 sub section i of the Regulation shall first be exercisable on the expiration of 25 years from the commencement of this license and on the expiration of every subsequent period of ten years during the continuance of this license Section 71 of the corresponds to section 7i of the Regulation that is to say of the Cochin Electricity
Regulation
The date of the commencement of the license is December 3 1935
The period of 25 years mentioned in el
15a of the license expired on December 2 1930
The last date for giving the two years notice of the election to purchase on the try of  December 2 1960 required under section 74 of the Indian e electricity Act 1910 expired on December 2 1958
On February 11 1959 the State Electricity Board served on the appellant a notice exhibit B of its election to purchase the undertaking of the appellant on the expiry of December 2 1960 but this notice was not being in accordance with section 74 was of no legal effect
By the Indian Electricity Amendment Act 1959 Act 32 1959 s6 now in force was substituted for the old s7 of the  with effect from September 5 1959
Section 6 of the now in force reads 6
1 Where a license has been granted to any person not being a local authority the State Electricity Board shall a in the case of a license granted  before the commencement of the Indian Electricity Amendment Act 1959 on the expiration of each such period as is specified in the license and b in the case of a license granted on or after the commencement of the said Act on the expiration of such period not exceeding twenty years and of every such subsequent period not exceeding ten years as shall be specified in this behalf in the license have the option of purchasing the undertaking and such opton shall be exercised by the State Electricity Board serving upon the license a notice in writing of not less than one year requiring the licensee to sell the undertaking to it at the expiry of the relevant period referred to in this sub section
2 Where a State Electricity Board has not been constituted or if constituted does not elect to purchase the undertaking the State Government shall have the like option to be exercised in the like manner of purchasing the undertaking
3Where neither the State Electricity Board nor the Government elects to purchase the undertaking any authority constituted for an area within which the area of supply is included shall have the like option to be exercised in the like manner of purchasing the undertaking
4 If the State Electricity Board intends to exercise the option of purchasing the undertaking under this it shall send an intimation in writing of such intention to the State Government at least eighteen months before the expiry of the relevant period referred to in subsection 1 and if no such intimation as aforesaid is receiv 190 ed by the State Government the State Electricity Board shall be deemed to have
elected not to purchase the undertaking
5 If the State GoVernment intends to exercise the option of purchasing the undertaking under this section
shall send an intimation in writing of such intention to the local authority if any referred to in sub section 3 at least fifteen months before the expiry of the relevant period referred to in sub section 1 and if no such intimation as aforesaid is received by the local authority
the State Government shall be deemed to have elected not to purchase the undertaking
6 Where a notice exercising the option of purchasing the undertaking has been served upon the licensee under this secton the licensee shall deliver the undertaking to the State Electricity Board the State Government or the local authority as the case may be on the expiration of the relevant period referred to in sub section 1 pending the determination and payment of the purchase price
7 Where an undertaking is purchased under this section the purchaser shall pay to the licensee the purchase price determined in accordance with the provisions of sub section 4 of section 7A On October 24 1959 the State Electricity Board served upon the appellant a notice exhibit D of its election to purchase the undertaking on the expiry of December 2 1960
On October 29 1959 the State Electricity Board served upon the appellant another notice exhibit E of its election
On November 20 1959 the State Government served upon the appellant a notice exhibit G of its election to purchase the undertaking on the expiry of December 2 1960
On November 14 1960 the appellant filed a writ petition in the High Court of Kerala impleading the State of Kerala and the Kerala State Electricity Board and asking for the issue of appropriate writs and orders restraining them from taking any action pursuant to the notices
BDE and G
On December 20
1961 a learned single Judge of the High Court passed the following order  In view of the representation made before me by both the learned Advocate General appearing for the State the I st respondent and Mr Krishnaswami lIyengar learned counsel appearing for the Kerala State Electricity Board
the second respondent
that for the purpose of this writ petition
the notices issued by the Kerala State Electricity Board Exs
B D and E can be ignored it follows that neither the 1st respondent nor the 2nd respondent has any jurisdiction or power to take any action on the basis Exs
B D or E
In view of the fact that I am uphold 191 ing the action of the State Government who had issued the notice exhibit G it follows that the 1st respondent alone is entitled to take further action under the Act
in pursuance of the notice exhibit G issued and sent along with the covering letter exhibit F on 20 1 1 1959
It follows subject to what is stated about Exs
B D and E that the writ petition has to be dismissed
There will be no order as to costs
 The effect of this order was that the State Electricity Board waived and abandoned all its rights of purchase of the undertaking under the notices Exs
B D and E and neither the Kerala State Electricity Board nor the State of Kerala had any jurisdiction or power to take any action on the basis of those notices and save as aforesaid the writ petition was dismissed and it was held that State Government was entitled to take further action under its notice exhibit G Aggrieved by this order the appellant filed an peal in the Kerala High Court impleading the State Government only as the party respondent
The State Electricity Board did not file any appeal from the order of the learned single Judge
By its judgment dated October 4 1962 a Division Bench of the High Court dismissed the appeal
In paragraph 15 of its judgment Bench observed In its petition the appellant asked for reliefs both against the State Government and the State Electricity Board
However in the course of the hearing of the petition the Board gave up its claims under Exts
B D and E and only the claim of the State Government under Ext
G was canvassed
The petition was in effect allowed against the Board
The Baord has not appealed and is not a party to the present appeal and its notices may therefore be ignored except to the extent that they may affect the rights of the State Government
 The appellant now appeals to this Court under a certificate granted by the High Court under articles 1331a and 1331c of the Constitution
On half of the appellant Mr Vishwanath Sastry contended that 1 as the two years  notice in writing of
the election to purchase the undertaking on the expiry of December 2 1960 was not served on the appellant as required by the old section 74 of the  1910
the appellant acquired a vested right to hold the license until the expiry of a further period of ten yearsthat is to say until December 2 1970
and this vested right was not taken away either expressly or by necessary implication by the new s6 of the introduced by the amending Act 32 of 1958 2 the expression on the expiration of each such period as is specified in the license in the new s61a means a period which has not expired and on the expiry of which the option may be legally exercised
and since in the absence of the two years  notice required under the old s74 the option of purchase on the expiry of December 2 1960 could not be legally 192 exercised the new s61 did not confer any option of purchase on the expiry of December 2 1960 and the first option exercisable under the new s61 would be on the expiry of December 2 1970 3 sub sections 4 and 5 of the new s6 show that the period on the expiry of which the option under sub s1of s6 is exercisable is a period which would expire at least 18 months after the coming into force of the new s6 that is to say after September 5 1959 and since the period expiring on December 2 1960 is not such a period the new s61 did not confer any option of purchase on the expiry of December 2 1960 and 4 in any event the State Electricity Board having duly elected to purchase the undertaking on the expiry of December 2 1960 the State Government acquired no option of purchase under sub s2 of s7 of the 
On behalf of the respondent
Mr VP Gopalan Nambiar the Advocate General of Kerala contended 1 that the absence of two years  notice under the old s74 of the did not confer upon the appellant a vested right to hold the license until the expiry of December 2 1970 and the immunity from compulsory purchase under the old s7 arising from the non service of the requisite two years  notice could be and in fact was taken away by the new s6 which required only one year s notice of intention to purchase the undertaking 2 assuming that the appellant acquired under the old s7 a vested right to hold the license until December 2 1970 such vested right was taken away by the new s6 which expressly applies to licenses granted before its commencement and the period of 25 years is a period specified in as the license on the expiry of which the option of purchase was legally exercisable 3 sub sections 4 and 5 of the new s6 did not cut down the plain meaning of sub s1 of the section and the option on the expiry of the period of 25 years was vested under sub s1 of s6 though this period did not expire 18 months after September 5 1959 and 4 as the State Electricity Board did not send to the State Government any intimation in writing of  its intention to exercise the option on the expiry of December 2 1960 as required by sub s4 of s6 the Board must be deemed to have elected not to exercise this option and consequently by sub S2 of s6
the State Government is vested with the option We think that the fourth contention of Mr Viswanatha Sastry is sound and should be accepted
Assuming without deciding that the option of purchasing the undertaking on the expiry of the period of 25 years specified in the license was available under sub s1 of s6 such option vested in the State Electricity Board and as the Board duly elected to purchase the undertaking the State Government acquired no right or option of purchasing the undertaking under s6
On this ground alone the appeal should be allowed and in this view of the matter we do not think it necessary to express any opinion on the other contentions urged 193 before us
As far as the State Electricity Board is concerned
it has abandoned and waived its option of purchase on the expiry of 25 years
Sub section 1 of s6 expressly vests in the State Electricity Board the option of purchase on the expiry of the relevant period specified in the license
But the State Government claims that under sub s2 of s6 it is now vested with the option
Now under sub s2 of s6 the State Government would be vested with the option only where a State Electricity Board has not been constituted or if constituted does not elect to purchase the undertaking
 It is common case that the State Electricity Board was duly constituted
But the State Government claims that the State Electricity Board did not elect to purchase the undertaking
For this purpose the State Government relies upon the deeming provisions of sub s4 of s6 and contends that as the Board did not send to the State Government any intimation in writing of its intention to exercise the option as required by the sub section the Board must be deemed to have elected not to purchase the undertaking
Now the effect of sub s4 read with sub s2 of s6 is that on failure of the Board to give the notice prescribed by sub s4 the option vested in the Board under sub s1 of s6 was liable to be divested
Sub section 4 of s6 imposed upon the Board the duty of giving after the coming into force of s6 a notice in writing of its intention to exercise the option at least 18 months before the expiry of the relevant period
Section 6 came into force on September 5 1959 and the relevant period expired on December 3 1960
In the circumstances the giving of the requisite notice of 18 months in respect of the option of purchase on the expiry of December 2 1960 was impossible from the very commencement of s6
The performance of this impossible duty must be excused in accordance with the maxim lex non cogitate ad impossible the law does not compel the doing of impossibilities and sub s4 of s6 must be construed as not being applicable to a case where compliance with it is impossible
We must therefore hold that the State Electricity Board was not required to give the notice under sub s4 of s6 in respect of its option of purchase on the expiry of 25 years
It must follow that the Board cannot be deemed to have elected not to purchase the undertaking under sub s4 of s6
By the notice served upon the appellant the Board duly elected to purchase the undertaking on the expiry of 25 years
Consequently the State Government never became vested with the option of purchasing the undertaking under sub s2 of s6
The State Government must therefore be restrained from taking further action under its notice exhibit G dated November 20 1959
In the result the appeal is allowed and the respondent State of Kerala is restrained from taking any action under the notice exhibit G dated November 20 1959
The respondent shall pay to the appellant the costs in this Court
We direct the parties to pay and bear their own costs in the Courts below
Appeal allowed


Summary:
The appellant held a licence for the supply of electrical energy in Kerala which was granted for a period of 25 years and was subject to continuation for ten year terms in the absence of a notice by the local authority or State Government of an election to purchase the undertaking
The first 25 year term of the licence expired on December 2 1960 and prior to that on October 24 and again on October 29 1959 the State Electricity Board gave notice to the appellant under s61 of the  to purchase the under taking on the expiry of the licence
On November 20 1959the State Government also served notice on the appellant of its election to purchase the undertaking on December 2 1960
In November 1960 the appellant filed a writ petition in the High Court seeking orders restraining the State Electricity Board and the respondent State Government from taking any action pursuant to the notices given by them
In the course of the hearing the petition the State Electricity Board waived and abandoned all its rights of purchase of the Undertaking
The writ petition thereafter dismissed and it was held that the State Government was entitled to take further steps under its notice dated November 20 1959
An appeal against this decision to a Division Bench of the High Court was dismissed
In the appeal to the Supreme Court the appellant contendedinter alia that the State Electricity Board having duly elected under 61 to purchase the undertaking on the expiry
of the licence the State Government acquired no option of purchase under section 62 the 1910 Act
HELD Any option of purchasing the undertaking on the expiry of the period of 25 years specified in the licence under section 61 vested in the State Electricity Board and as the Board duly elected to purchase the undertaking by the notice served on the appellants the State Government acquired no right or option of purchasing the undertaking under section 6
193 G H As section 6 came into force less than eighteen months before December 2 1960 it was impossible for the Board to have given notice to the State Government as required by section 64 of its intention to exercise the option
On the principle of lex non cogit ad impossibil must therefore  be construed as not being applicable in the that the Board could not be deemed circumstances of the case so elected not to purchase the undertaking under section 64193 E F