Case: Bharat Hydro Power Corpn. Ltd.  Vs. State Of Assam

11) are not applicable to the appellants as they are not licensees: 32. Faced with this situation Mr. V.R. Reddy, learned senior counsel for the the appellants, submitted that the appellants are deemed licensees under the provisions of Act of 1948. For this he has referred to Section 26A of the Act of 1948. Section 26A reads as: "26A. Applicability of the provisions of Act 9 of 1910 to Generating Company. (1) Notwithstanding anything contained in sub-section (2), nothing in the Indian Electricity Act, 1910, shall be deemed to require a Generating Company to take out a licence under that Act, or to obtain sanction of the State Government for the purpose of carrying on any of its activities.(2) Subject to the provisions of this Act, Sections 12 to 19 (both inclusive) of the Indian Electricity Act, 1910 (9 of 1910) and clauses XIV to XVII (both inclusive) of the Schedule thereto, shall, as far as may be, apply in relation to a Generating Company as they apply in relation to a licensee under that Act (hereafter in this section referred to as the licensee) and in particular a Generating Company may, in connection with the performance of its duties, exercise -(a) all or any of the powers conferred on a licensee by sub-section (1) of Section 12 of the Indian Electricity Act, 1910,as if -(i) the reference therein to licensee were a reference to the Generating Company;(ii) the reference to the terms and conditions of licence were a reference to the provisions of this Act and to the articles of association of the Generating Company; and(iii) the reference to the area of supply were a reference to the area specified under sub-section (3) of section 15A in relation to the Generating Company;(b) all or any of the powers conferred on a licensee by sub-section (1) of section 14 of the Indian Electricity Act, 1910 (9 of 1910), as if-(i) the references therein to licensee were references to the Generating Company, and(ii) the Generating Company had the powers of a licensee under the said Act.(3) The provisions of section 30 of the Indian Electricity Act, 1910 (9 of 1910) shall not apply to the transmission or use of energy by a Generating Company.(4) For the removal of doubts, it is hereby declared that sections 31 to 34 (both inclusive) of the Indian Electricity Act, 1910 (9 of 1910) shall apply to a Generating Company". 33. Section 26A provides that notwithstanding the provisions of Sub-Section (2) a generating company would not be a required to take a licence under the Act of 1910 or to obtain sanction of the State Government for the purpose of carrying on any of its activities. Under sub-section (2) provisions of Sections 12 to 19 of the Act of 1910 are made applicable to a generating company as they apply to a licensee under the 1910 Act. If it is to be noted that provisions of Sections 3 to 11 of 1910 Act have not been made applicable to the generating company. 34. "Generating Company" has been defined in Section 2(4A) of the 1948 Act to mean: "Generating Company means a company registered under the Companies Act 1956 (1 of 1956) and which has among its objects the establishment operation and maintenance of generating stations." 35. "Licensee has been defined under this Act in Section 2(6) as under: "Licensee" means a person license under Part II of the Indian Electricity Act, 1910 (9 of 1910) to supply energy or a person who has obtained sanction under Section 28 of that Act to engage in the business of supplying energy but the provisions of Section 26, or 26A of this Act notwitstanding, does not include the Board or a Generating Company." 36. A combined reading of Sections 2(4A) and 2(6) makes it clear that even if the appellant No.1 is taken to be a generating company (which is not necessary to be determined in this case) it would not be a license because the generating company has been specifically excluded from being a licensee notwithstanding the provisions of Sections 26 or 26A of the 1948 Act. As pointed out earlier only Sections 12 to 19 of the Act of 1910 have been made applicable to a generating company. Sections 3 to 11 of Act of 1910 do not apply to a generating company. 37. Section 37 of Act of 1948 provides for purchase of generating stations or undertakings or main transmission lines by the Board. This Section would also not apply to the present case. The legislature in its wisdom made only certain provisions of Act of 1910 applicable to a generating company in Section 26A. Contention that the impugned Act is in violation of provisions of Act of 1910 or the Act or 1948 has no basis to stand on.38. The impugned Act and the Central Acts in the instant case operate in two different fields without encroaching upon each others field in as much as the true nature and character of the impugned State Act is to acquire the undertaking and pay compensation as provided in the Act whereas both the Central Acts (Acts of 1910 and 1948) have made general provisions with regard to supply and use of electrical energy. The provisions regarding purchase of undertaking in the Act of 1910 would not be applicable as the appellants are not licensees within the meaning of the Act of 1910. There is not even a semblance of conflict what to talk of direct conflict between the impugned State Act and the Central Acts to bring about the situation where one cannot be obeyed without disobeying the others. Both the Acts can operate simultaneously as they do not occupy the same field. As the enactments operate in two different fields without encroaching upon each others field there is no repugnancy.39. Since there is no repugnancy the question of the State Act being kept for the consideration of the President or receiving his assent did not arise.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We do not find any substance in this submission.Section 37 of Act of 1948 provides for purchase of generating stations or undertakings or main transmission lines by the Board. This Section would also not apply to the present case. The legislature in its wisdom made only certain provisions of Act of 1910 applicable to a generating company in Section 26A. Contention that the impugned Act is in violation of provisions of Act of 1910 or the Act or 1948 has no basis to stand on.38. The impugned Act and the Central Acts in the instant case operate in two different fields without encroaching upon each others field in as much as the true nature and character of the impugned State Act is to acquire the undertaking and pay compensation as provided in the Act whereas both the Central Acts (Acts of 1910 and 1948) have made general provisions with regard to supply and use of electrical energy. The provisions regarding purchase of undertaking in the Act of 1910 would not be applicable as the appellants are not licensees within the meaning of the Act of 1910. There is not even a semblance of conflict what to talk of direct conflict between the impugned State Act and the Central Acts to bring about the situation where one cannot be obeyed without disobeying the others. Both the Acts can operate simultaneously as they do not occupy the same field. As the enactments operate in two different fields without encroaching upon each others field there is no repugnancy.39. Since there is no repugnancy the question of the State Act being kept for the consideration of the President or receiving his assent did not arise.