Case: Cochin State Power And Light Corporation Ltd Vs. State Of Kerala

the coming into force of the new S. 6, that is to say, after September 5, 1959, and since the period expiring on December 2, 1960 is not such a period, the new S. 6 (1) 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-s. (2) of S. 6 of the Indian Electricity Act, 1910. 6. On behalf of the respondent, Mr. V. P. Gopalan Nambiar, the Advocate-General of Kerala, contended (1) that the absence of two years notice under the old S. 7 (4) of the Indian Electricity Act, 1910 did not confer upon the appellant a vested right to bold the license until the expiry of December 2, 1970, and the immunity, from compulsory purchase under the old S. 7 arising from the non-service of the requisite two years notice could be, and, in fact, was taken away by the new S. 6, which required only one years notice of intention to purchase the undertaking; (2) assuming that the appellant acquired under the old S. 7 a vested right to hold the license until December 2, 1970, such vested right was taken away by the new S. 6, which expressly applies to licenses granted before its commencement, and the period of 25 years is a period specified in the license on the expiry of which the option of purchase was legally exercisable; (3) sub-ss. (4) and (5) of the new S. 6 did not cut down the plain meaning of sub-s. (1) of the section and the option on the expiry of the period of 25 years was vested under sub-s. (1) of S. 6, 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-s. (4) of S. 6, the Board must be deemed to have elected not to exercise this option, and consequently by sub-s. (2) of S. 6, the state Government is vested with the option. 7. 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-s. (1) of S. 6, 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 S.6. on this ground alone, the appeal should he allowed, and in this view of the matter, we do not think it necessary to express any opinion on the other contentions urged 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. 8. Sub-section (1) of S. 6 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-s. (2) of S. 6 it is now vested with the option. Now, under sub-s. (2) of S. 6, 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-s. (4) of S. 6, 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-s. (4) read with sub-s. (2) of S. 6 is that on failure of the Board to give the notice prescribed by sub-s. (4), the option vested in the Board under sub-s. (1) of S. 6 was liable to be divested, sub-section (4) of S. 6 imposed upon the Board the duty of giving after the coming into force of S. 6 a notice in writing of its intention to exercise the option at least 18 month; 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 S. 6. The performance of this impossible duty must be excused in accordance with the maxim, lex non cogit ad impossibilia (the law does not compel the doing of impossibilities), and sub-s. (4) of S. 6 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-s. (4) of S. 6 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-s. (4) of S.6 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-s. (2) of S.6 The State Government must, therefore, be restrained from taking action under it; notice, Ex. G. dated November 20 1959.

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

Explanation:
1[ds]7. 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-s. (1) of S. 6, 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 S.6. on this ground alone, the appeal should he allowed, and in this view of the matter, we do not think it necessary to express any opinion on the other contentions urged 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 years8. Sub-section (1) of S. 6 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-s. (2) of S. 6 it is now vested with the option. Now, under sub-s. (2) of S. 6, 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-s. (4) of S. 6, 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-s. (4) read with sub-s. (2) of S. 6 is that on failure of the Board to give the notice prescribed by sub-s. (4), the option vested in the Board under sub-s. (1) of S. 6 was liable to be divested, sub-section (4) of S. 6 imposed upon the Board the duty of giving after the coming into force of S. 6 a notice in writing of its intention to exercise the option at least 18 month; 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 S. 6. The performance of this impossible duty must be excused in accordance with the maxim, lex non cogit ad impossibilia (the law does not compel the doing of impossibilities), and sub-s. (4) of S. 6 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-s. (4) of S. 6 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-s. (4) of S.6 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-s. (2) of S.6 The State Government must, therefore, be restrained from taking action under it; notice, Ex. G. dated November 20 1959.