Kerala State Electricity Board Vs. Indian Aluminium Co [1975] INSC 193 (1 September 1975)
ALAGIRISWAMI, A.
ALAGIRISWAMI, A.
BHAGWATI, P.N.
GOSWAMI, P.K.
SARKARIA, RANJIT SINGH GUPTA, A.C.
CITATION: 1976 AIR 1031 1976 SCR (1) 552 1976 SCC (1) 466
CITATOR INFO:
RF 1976 SC1999 (8) R 1978 SC 215 (30) RF 1980 SC1955 (12) F 1983 SC 937 (33) R 1984 SC 981 (8) MV 1985 SC 421 (61) R 1986 SC 63 (7) F 1987 SC1837 (54) RF 1987 SC2034 (15) F 1990 SC 781 (71) R 1990 SC1637 (44) E 1990 SC1851 (36) RF 1990 SC2072 (10,44)
ACT:
Kerala Essential Articles Control (Temporary powers) Act, 1961, S.2(a) and S.3-Kerala State Electricity Supply (Kerala State Electricity Board and Licensees Areas) Surcharge Order made under s. 3-Constitutional validity of - constitution of India, 1950-Art. 246-Notwithstanding" and "Subject to" in Art. 246(1) and (3) meaning of-Entries 43 and 44 of List I and Entry 38 of List III-Doctrine of pith and substance.
Presidential assent-If could be given to cure possible repuganancy-If could be given to notifications-Assent to the whole Act not merely to one amendment when referred- Subordinate Legislation-Principle regarding validity of.
Section 2(a) of the Kerala Esseential Articles Control (Temporary Powers) Act, 1961 defines "essential article" as meaning any article (not being an essential article as defined in Essential Commodities Act. 1955) which may be declared by the Government by a notification to be an essential article. Section 3 enables the State Government, if of the opinion that it is necessary or expedient so to do for maintaining or increasing the supplies of any essential article etc. to make certain notified orders. The Act was originally intended to be in force for five years but its life was extended by successive amendments.
HEADNOTE:
In exercise of powers conferred by s.2(a) of the Kerala Act, the State Government declared 'electricity' as an essential article in 1965. In 1968, the State Government passed an Order called the Kerala State Electricity Supply (Kerala State Electricity Board and Licensees Areas) Surcharge Order, 1968, under s.3 of the Kerala Act, by which, the State Electricity Board was required to collect surcharge from non-licensee consumers of electricity even though the Board may have entered into long term contracts with them with regard to the rate at which electricity was to be supplied to them.
The respondents, who were bulk consumers of electricity, questioned before the High Court the validity of the order. The order having been struck down by the High Court, in appeal to this Court, the respondents supported the judgment of the High Court on the grounds: (i) The Kerala Act is repugnant to the Electricity Act, 1910 and the Electricity (Supply) Act, 1948 (both of which are Central Acts) and, in particular the latter, which falls within Entries 43 and 44 of List I; and that the State Act trenches upon the field occupied by the 1948-Act which falls partly under Entry 43 of List I and partly under Entry 38 of List III. On behalf of the appellants it was contended that the Kerala Act falls under Entries 26 and 27 of List II, and in any event, the Presidential assent to the Kerala Act has cured the repugnancy.
Allowing the appeal (per majority-Alagiriswami, Bhagwati, Goswami and Sarkaria, JJ.):
HELD: The Kerala Act, the declaration of 'electricity' as an essential article under s. 2(a), and the Surcharge Order made under s. 3, are valid. [581 G]
1. The question of repugnance arises only in case both the legislations fall within the same List, namely, List III. If any legislation is enacted by a State Legislature in respect of a matter falling within List I that will be void.
There can, therefore, be no question of repugnance between the Electricity Act, 1910 and the Electricity (Supply) Act.
1948 on the one hand, and the Kerala Act on the other if the first two Acts fall in List I or List III and the State Act in List II. [562 D] Indu Bhushan v. Sundari Devi [1970] 1 S.C.R. 443 referred to.
553
2. (a) The words "notwithstanding" in clause (1) and "subject to" in clause (3) of Art. 246 of the Constitution mean that where an entry is in general terms in List II and part of that entry is in specific terms in List I the entry in List I takes effect notwithstanding the entry in List II.
This is also on the principle that the 'special" excludes the "general" and the general entry in List II is subject to the special entry in List I. [563 C] (b) The word "notwithstanding" also means that if it is not possible to reconcile the two entries the entry in List I will prevail. But before that happens attempt should be made to decide in which List a particular legislation falls.
For deciding under which entry a particular legislation falls, the theory of "pith and substance" has been evolved by Courts. If in pith and substance a legislation falls within one list or the other, but some portion of the subject matter of that legislation incidentally trenches upon and might come to fall under another List, the Act as a whole would be valid notwithstanding such incidental trenching. [563 D-E] (c) Both the 1910 Act as well as the 1948-Act are existing law as contemplated under Art. 372 of the Constitution. An existing law continues to be valid even though the legislative power with respect to the subject matter of the existing law might be in a different List under the Constitution from the List under which it would have fallen under the Government of India Act, 1935. But, after the Constitution came into force an existing law could be amended or repealed only by the Legislature which would be competent to enact that law if' it were to be newly enacted. [566 G] 3(a) The Statement of Objects and Reasons though not relevant for the purpose of interpreting the sections of an Act, will throw light upon the object of the Legislature from the historical point of view [569 A] (b) The 1948-Act was enacted for the purpose of co- ordinated development of electricity in India on a regional basis. The Statement of objects and Reasons states that there was necessity for the constitution of semi-autonomous bodies like Electricity Boards to administer grid system on quasi-commercial lines. The Act deals with the incorporation and regulation of Electricity Boards. It created a central authority (which is not an incorporated body) as well as various provincial Electricity Boards (which are incorporated bodies). A Provincial Electricity Board located in one Province and operating in a neighbouring Province could carry on its operations by agreement with the other Province or Provinces. The jurisdiction of an Electricity Board, however, was confined mainly to the jurisdiction of an Province under the Act the executive power vested in the Provinces. The Statement of objects and Reasons further says that the semi-autonomous Electricity Boards contemplated under the Act could not be set up by provincial Governments under the then existing constitutional Act as they would be in the nature of trading corporation within the meaning of entry 33 of the Federal Legislative List of the Government of India Act, 1935. [568A-H]
4. The argument that the 1948_Act falls under entries 43 and 44 of List I has no substance. [568 A] (a) A reading of the Statement of Objects and Reasons shows that the 1948-Act was a legislation under an entry in the Concurrent List. Although the Statement of objectcs and Reasons mentions entry 33 of the Federal List of the Government of India Act, 1935 (corresponding to entries 43 and 44 of List I of the Seventh Schedule to the Constitution) it does not show that the 1948-Act falls under entry 44. Nor is the fact that entry 33 of List I of the Government of India Act, 1935 was mentioned in the Statement of objects and Reasons a conclusive test. [568 E] (b) From an examination of the provisions of the 1948- Act it would be obvious that one part of the Act deals with the constitution of the Board,the incorporation of the Board and the regulation of its activities. But the main purpose of the Act is for, rationalising the production and supply of electricity. The regulation contemplated in entries 43 and 44 of List I is not regulation of the business of production, distribution and supply of electri- 554 city of the Corporation. The provision regarding the incorporation and regulation of Electricity Boards should be taken to be only incidental to the provisions regarding production, supply and distribution of electricity.
Therefore, the provisions of the 1948 Act regarding the Board's functions do not make it one falling under entry 43 of List I. [570 H; 571A] R. C. Cooper v. Union [1970] 3 S.C.R. 520 and Ramtanu Housing society v. Maharashtra [1971] 1 S.C.R. 719 followed.
(c) The 1948-Act in pith and substance, should be deemed to be one falling under entry 38 of List III. In the Present case the incorporation of the Stage Electricity Boards is merely for the rationalisation of the production and supply of electricity, for taking measures conducive to electrical development and for all matters incidental thereto. Furthermore, Electricity Boards are not trading corporations; they are established to promote co-ordinated development of the generation, supply and distribution of electricity on a no-profit-no-loss basis. In the discharge of their functions, they are guided by directions on questions of policy given by the State Governments. There are no shareholders and there is no distribution of profits.
This is another reason why the 1948-Act cannot be said to fall under entry 43 of List I. [573 B-D] (d) Even assuming that part of the 1948-Act is a legislation with respect to incorporation and regulation of a trading corporation, falling under entry 48 of List I of Schedule Seven, the rest of it will fall under entry 38 of List III. The Kerala Act has nothing to do with the incorporation and regulation of the Electricity Boards and, therefore, it can only relate to entry 38, List III, if at all. [573 F-G] (e) The 1910 and 1948-Acts together form a complete code with respect to entry 38 in List III and the Board is only an instrument fashioned for carrying out this object.
[571 A] (f) Therefore both the 1910-Act and 1948-Act could be amended or repealed by the Parliament and also by the State Legislature if it obtains Presidential assent to an Act amending or repealing the 1910-Act or 1948-Act. [566 H] A. K. Krishna v. State of Madras [1957] SCR 399; P. N.
Kaul v. The State of J & K. [1959] Supp.2 SCR 270 and J & K State v. M. S. Farooqi [1972] (3) SCR 881, referred to.
(g) The assent of the President should be deemed not merely to the substitution of the words five years by the words seven years in the Kerala Act but to the Act as a whole and any repugnance between the Kerala Act on the one hand and the 1910-Act and 1948-Act on the other should be doemed to have been cured by such assent. The Kerala Act in so far as it deals with electrieity can be deemed to be legislation under entry 38 of List III Though the Act itself has not declared any article as an essential article, when the declaration was made under s.2(a) in 1965 it became part of the Act. When the President assented to the Amendment Act of 1967 the declaration of electricity as and essential article had been made and should be deemed to have become a part of the Act. [575 F; C] (5) But the Kerala Act is a matter falling under entries 26 and 27 of List II. [575 A] (a) "Essential article" is a term which has acquired a defining connotation in Indian legislative practice and is not a vague or a general term.
"Essential commodity" defined in the Essential Commodities Act, 1955 includes practically every matter regarding industry within the legislative competence of Parliament. The term "essential commodity" is an expression corresponding to a commodity essential to the life of the community. It is not open to the authority exercising powers under s.2(a) of the Kerala Act to declare and any every commodity as an essential commodity. That Act deals with esential articles not being essential article dealth with the by Central Act of 1955. It is not a legislation with respect to electricity and, therefore, does not fall under entry 38 of List III. Electricity, being beyond doubt an essential article may be declared to be an essential article under the Act. In that case the power 555 exercised is not in relation to electricity qua electricity but electricity as an essential article. The Act, therefore in pith and substance is with respect to trade and commerce and production, supply and distribution of electricity. It is not a permanent legislation with respect to electricity but a temporary one dealing with a temporary situation. [574 A; F-H] (b) The Surcharge order was necessary for the survival and existence of the Board without which there can be no production or supply of electricity. It is no valid criticism of this view to say that the powers of the Board under the 1948-Act are over-ridden by the Surcharge order and the order is, therefore, repugnant to the 1948-Act. The Board was anxious to make no Surcharge order. This is a simple case of a contract being over-ridden in exercise of statutory powers. [575 B] 6(a) It is not correct to say that in so far as the consequence of a declaration under s.2(a) of the Kerala Act was that the State Government was enabled to make orders regarding production, supply and distribution of electricity, there was a possibility of such orders being repugnant to the provisions of the 1910-Act and the 1948-Act and, therefore, any such repugnancy was cured by the assent given by the President. It is only the actual repugnancy that can be cured by Presidential assent and not the possibility of repugnancy. [575 G] (b) No Presidential assent was possible to the notification Art. 254(2) does not contemplate Presidential assent to notifications issued under the Act. The Article contemplates Presidential assent only to laws made by the Legislature of a State. [567 G] 7(a) Notwithstanding the fact that subordinate legislation is laid on the table of House of Parliament or State Legislature and being subject to such modification, annulment or amendment as they may make the subordinate legislation cannot be said to be valid unless it is within the scope of the rule making power provided in the statute.
Where an executive authority is given power to frame subordinate legislation within stated limits, rules made by such authority, if outside the scope of the rule-making power should not be deemed to be valid merely because such rules have been placed before the Legislature and are subject to such modification, annulment or amendment as the Legislature may think fit. The process of such amendment, modification or annulment is not the same as the process of legislation and in particular it lacks the assent either of the President or the Governor of the State. [576 E-G] Minister of Health v. The King, [1931] A.C. 494 and Institute of Patent Agents v. Lockwood, [1894] A.C. 347 referred to.
(b) If a declaration made under s. 2(a) or an order made under s.3(a) is not within the scope of the Act, it should be held to be not valid. [576 H] (c) A declaration can still be attack if the power to make such a declaration was beyond the scope of the power delegated. even if subsequent to the declaration the Act was amended and the President had given his assent to the to Amending Act.[577 A] (d) But the power conferred by the Kerala Act is a case of conditional legislation. The various types of powers that can be exercised under that Act are enumerated in it. Only an article with reference to which those powers are to be exercised is left to be determined by the Executive. That will vary from time to time. It is the Executive that would be in a position to judge when and under what circumstances an article becomes an essential article and, therefore, it is necessary. to control the production, supply and distribution of trade. and commerce in that article.[578 H] The Queen v. Burah (5 L.R.178@ 194) State of Punjab v. Khan Chand A.I.R. 1974 SC. 543 and Gwalior Rayon Mills v.
Asst. Commr. S.T. A.I.R. 1974 S.C. 1660 followed.
556 The Kerala Essential Articles Control (Temporary Powers) Act, 1961 is an invalid piece of legislation on the ground of excessive delegation and the declaration and Surcharge order made respectively under s.2(a) and s.3 of that Act are of no consequence.[582 G] 1(a) The definition of essential article leaves it to the State Government to decide what should be an essential article for the purpose of the Act. The legislature is, of course presumed to know the limits of its competence and assuming it is permissible to attribute similar knowledge to the Government as to the bounds of its authority under s.2(a) an essential article may be any article covered by any of the entries in List II or List III except the classes of commodities mentioned as an essential commodity in the Essential Commodities Act. Until, therefore, the Government issued a notification under s.2(a) declaring electrical energy to be an essential article almost four years after the Act came into force, it was not possible even to guess what the Act was about. Thus the Act as passed had no positive content, it was and empty husk and its insubstantiality, if by itself not an invalidating factor, exposes the want of a declared legislative policy in the Act. The Act does not provide any guidance or lay down any test to ascertain what makes an article essential for the purpose of the Act. The reference to the Essential Commodities Act in s.2(a) which defines "essential article" is merely to exclude from its purview the commodities covered by the Essential Commodities Act and only serves to emphasise its indefiniteness and makes it more difficult to find any clue to the nature of the articles the Legislature had in mind in enacting the Kerala Act. Almost the entire legislative field was left open to the Government to choose from and decide according to their own lights what should be an essential article. [583 C-G] (b) The Legislature cannot delegate the essential legislative function, which means that the Legislature must declare the policy of the law and provide a standard for the guidance of the subordinate law making authority. The Kerala Act authorises the Government to declare any article as essential except those mentioned in the Essential Commodities Act without laying down any definite criteria or standards. This is surrendering unguided and uncanalised power to the executive. The Act cannot be called an instance of conditional legislation. The powers conferred on the Government by the Kerala Act exceed the limits of permissible delegation. [583 H] (c) The Kerala Act of 1961 was to remain in force for a period of five years from January 1962. The Principal Act as well as the Amending Acts of 1967, 1969, and 1970 received the assent of the President. But the Act as passed in 1961 did not appear to contain any provision which was repugnant to any Central Act or existing law; that being so, the assent given to it seems redundant and of no consequence.
Article 254(2) contemplates an existing repugnancy and not possible future inconsistencies.
[Obiter: Assuming that assent given by the President to the amending Acts would have the effect of curing the repugnancy between the declaration under s.2(a) and the Surcharge Order under s.3 of the principal Act on the one hand and the Central Acts of 1910 and 1948 on the other, If the declaration and the Surcharge Order were outside the Act,could not cure the repugnancy arising from these two orders.[584 H] The orders made by the-State Government under s.2(a) and s.3(1) of the impugned Act could not be called part of the Act. The Act did not even say that such orders were to be treated as if enacted in the Act. The President's assent could not be said to have cured the repugnancy created by the Surcharge order. [585 G] Arguments for the appellant:
The impugned Kerala Act is a legislation under Entry 26 of List II (Trade and Commerce). It may also fall under Entry 27, List II (Production, Distribution and Supply of Goods). Assuming that the Electricity Supply Act falls under Entries 43 and/or 44 of List I, the State Legislature is competent 557 to pass legislation relating to the trading and commercial activities of the Corporation set up under the Central Act passed under Entry 43 and/or 44 of List I.
Assuming that the Kerala Act encroaches on the powers of the Electricity Board under s.49, such encroachment is incidental and is justified under the doctrine of pith and substance.
Assuming that the Central legislation as well as the State legislation falls under Entry 38 of List III, there is no repugnancy or conflict between the powers of the Board under s.49 and the impugned Act and the orders because they are made within the provisions of the Act and to aid and support the powers of the Board.
If the surcharge had not been introduced the Electricity Board would not have been able to carry on the business and would have been compelled to close down its business.
Arguments on behalf of Electricity Board:
The Act applies to essential commodities i.e. all essential commodities as understood at the time of legislation in 1962. In view of the programme of industrialisation, and the limited scope of the Central Essential Commodities Act, 1955, the present Act was conceived. The background of the Act strongly indicates the content of the expression 'essential commodities' as meaning the same thing as "essential to the life of the community".
Under the impugned Act by s.2(a) the power to select the articles for control is delegated to the State Government.
The power to take orders for control is delegated both to the State Government and authorised officers. The articles falling within the Central Essential Commodities Act, 1955 are excluded from the purview of the Act not because control of those articles is not desired but because the State Government have the necessary powers under the Central Act itself. The definition in s.2(a) should be understood to mean "essential articles" notified by the State Government and essential articles should be understood as those which are essential to the life of the community. The word 'control' in the preamble is indicative of the limited scope of the Act. This interpretation saves the Act from the vice of abdication of essential legislative function by the Legistature.
The preamble to the Act is a key-note to the understanding of an Act as well as the Statement of Objects and Reasons clearly indicates the scope and purpose of the Act. "Trade and Commerce" as well as "supply and distribution" must be in respect of articles or goods but on that account it will not be permissible to dissect the Act and make it relatable to each commodity over which control is imposed. The pith and substance of the Act makes them fall within List II, Entries 26 and 27. The law is not a law relating to electricity as such nor relating to the incorporation or power of the Electricity Board established under the Electricity Supply Act, 1948.
The Supply Act, 1948, as clearly expressed in the preamble and worked out in the Act through several agencies including the Board shows that the pith and substance of the Act is development of electricity and falls within List III, Entry 31 of the Government of India Act. 1935. The incorporation of State Electricity Board for each State is only one of the means of achieving the objective. Moreover, the Board is not a trading Corporation since it is not created to earn profits but to carry out development and supply energy at the most economical rate. Each Board is established by a State. The whole law falls in the Concurrent List and in any event not under List I, Entry 43 because the Board is not a trading corporation nor does it fall under Entry 44 because the Board is a State Board for the State. The Supply Act was passed under the Government of India Act, 1935 and was an "existing law" and not an impediment to the State passing a law within its competence.
There is no conflict between the impugned notification and the exercise of powers of the Board under s.40 of the supply Act. Assuming that both the legislations fall under List III, the President's assent to the impugned Act was operative, the conflict was immaterial.
558 Arguments for the respondent:
The Electricity Supply Act of 1948 is relatable partly to List I entry 43 and 44 (Government of India Act List I Entry 33) and partly to List III Entry 38 (Government of India Act List III Entry 31). Part of the Act is concerned with the constitution and powers of the Electricity Board which is something like the memorandum and Article of a Limited Company and another part of the Act may be said to be concerned with electricity.
The Kerala Act is a vague piece of legislation. The Articles to which this Act may apply are not mentioned. It is only after the power under the Act is exercised that it is possible to say whether it would conflict with any other legislation.
The impugned Act may be applicable to Articles relatable to as many as 20 legislative entires from List I, II and III at the discretion of the Government.
Regulation and Control with regard to many of the matters are covered by existing Central Acts such as Industries Regulation and Development Act, Factories Act, Central Excise and Salt Act, Defence of India Act, Indian Electricity Act, 1910, Electricity Supply Act, 1948.
Every aspect of electricity in respect of generation, control price fixation must be relatable to entry 38 of List I and not Entry 26 or 27 of List II. The Central Legislature has already legislated on all these aspects in the Indian Electricity Act of 1910 and Supply Act 1948. If these were the subject matter of Entries 26 and 27 of List II, the Central Legislature could not have legislated.
Any argument on the basis that the Electricity Supply Act 1948 is existing law, is not relevant because the 1948 Act has been extensively amended in 1956 and 1966 and these amendments relate to the field of control under the Kerala Act, if the same is applied in respect of electricity.
The Presidential assent given to the Kerala Act could be said to be an assent within the meaning of Article 254 since at the time when the assent was given the Act did not disclose any inconsistency with any Central Act since the items to which the Kerala Act was applicable did not appear in the statute. The conflict arose only when an order was made by the State Government applying the Act to electricity. No steps were even taken to incorporate in the Act the commodities to which the Act could apply and to take President's assent thereon.
The Kerala Act suffers from excessive delegation because at the will of the State Government the Act could be made applicable to any article, except those covered by the Essential Commodities Act. The State Government could apply the Act even to items falling in List I since there is no guideline.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 2557/69, 20/70, 1423-1434, 1733, 2474, 2575-2578/72, 95-105, 1318, 1371-74, 2040/73, 2100-2102/74 and 120, 121 & 536 of 1975.
From the Judgment and Order dated 24-9-69, 16-8-71, 25- 1-72, 16-2-72, 11-2-72, 10-2-72, 22-11-72, 21-7-72, 8-2-72, 25-7-72, 31-5-72 and 4-3-75 of the Kerala High Court in W.A.
Nos.809/69, 846-47, 855, 867, 894 and 940 of 1969, 261/71 and 957-58,983,988 and 1021/69,942/69, 427/71, 458, 415, 407, 408 & 68 of 1971 and 211, 241/70, 3 and 7/71, 342/72, 36, 42 and 43 of 1971 and 559 Civil Appeal No. 2117 of 1972.
Appeal by Special Leave from the Judgment and Order dated 17-8-71 of the Kerala High Court in W.A. No. 1021 of 1969.
Lal Narain Sinha, Solicitor General of India, A. G. Puddissery for the Appellant in C.A. No. 2557/69.
V. A. Seyid Mohammed and K. M. K. Nair for the Appellant in C.A. No. 20/70.
A. K. Sen (In C.A. Nos. 1423/72), M. P. Jha (In C.A. 1423/72), A. G. Puddissery (In all the petitions) for the appellants in C.As. Nos. 1423, 1434, 1735, 2474, 2575, 2576- 78/72, 1318, 1371, 1374, 2040/73, 2100-2102/74, 120-121, 536/75.
P. C. Chandi, K. M. K. Nair and K. R. Nambiar for the Appellants in CAs. Nos. 2117/72 and 95-105/73).
S. V. Gupte, Ajay Ray and P. Mathai, O. C. Mathur, K. J. John and J. B. Dadachanji for the Appellants in CA. No. 1457/71.
G. Rathi, Advocate General for the State of Orissa and B. Parathasarthy for the Appellant in C.A. Nos. 1652/74.
Vinoo Bhagat for the Appellants (In C.As. Nos. 1653- 54774).
S. V. Gupte (In CA. No. 2557/69), P. Mathai, Ajay Ray, O. C. Mathur K. John, J. B. Dadachanji and Mrs. S. Bhandare (In C.A. No. 20/70 for Respondent Nos. 1 (In CA. No. 2557/69) & (In CAs. Nos.20/70, 1423-24/72).
G. B. Pai, K. J. John, O. C. Mathur, J. B. Dadachanji and P. K. Kurian (In CAs. Nos. 1733/72) for Respondent No. 1 (In CAs.Nos. 1426-1429, 1431-1434, 1733/72, 2577-78, 95-96, 99-100 and 102 -105/73).
N. Sudharkaran, P. Mathai and P. K. Pillai for Respondent Nos. 1 (In CA. No. 2575/72) and (C.A. No. 1425/72).
K. R. Nambiar for Respondent No. 2 (In CA. No. 2575/72, 2576-78/72 and 2040/73).
Miss Lily Thomas for Respondent No. 1 (In CA. No. 2576/72).
A. S. Nambiar for Respondent No. 1 (In CA. No. 2578/72).
N. Sudharkaran for Respondent No. 1 (In CA. No. 97773).
G. B. Pai (In CA Nos. 2100-2102/74, 121/75), P. Mathai (In CA. Nos. 1318/75) Ranjit Mahanty, Ajay Ray (In CAs. No.
1652/74) and O. C. Mathur, K. J. John and J. B. Dadachanji (In all matters) for Respondent No.1 (In C.A. No. 1318/73, 2100-2102/74, 121/75) for the Respondents (In C.As. Nos. 1652/74).
Lal Narain Sinha, Solicitor General of India (In C.A. No. 1457/71) A. G. Puddissery for the Respondent (In CA. No. 1457 and 1641/71).
560 T. S. Krishnamoorthy Iyer, P. Mathai, N. Sudharkaran and P. K. Pillai for Respondent No. 1 (In CA. No. 1371 and 1374/73) and (In C.A. No. 1373/73) K. M. K. Nair for Respondent No. 2 (In C.As. Nos. 1371- 1374/73).
G. L. Sanghi, P. Mathai, K. J. John, O. C. Mathur and J. B. Dadachanji for Respondent No. 1 (In CA. No. 1372/73).
G.Rathi, Advocate General for the State of Orissa and B. Parthasarthy for Respondents (In CAs. Nos. 1653-1654774).
P. K. Pillai for the Intervener (In CA. No. 20/70).
G. L.Sanghi, P. V. Kapur, U. K. Khaitan (for Ferro Alloys Corpn.) K. R. Choudhry K. Raj Choudhry (for A.P.
Electricity Board) for the Intervener (In C.A. No. 1652/74).
S. Balakrishnan for Respondent No. 1 (in CA. No. 2040/73).
Note: Mrs. Sunanda Bhandare, Advocate appeared for the applicant intervener in CA. Nos. 1457 and 1642/71 and CA.
Nos. 1652-1654/74 and Mr. B. Sen, Senior Advocate, appeared for Respondent No. 1 (In CA. 20/70 and applicant intervener in CA. No. 1652/74).
The Judgment of the Court was delivered by Alagiriswami, J. A. C. Gupta, J. gave a dissenting Opinion.
ALAGIRISWAMI, J. The validity of the Kerala State Electricity Supply (Kerala State Electricity Board and Licensees Areas) Surcharge Order 1968 is in question in these appeals. That Order was passed in exercise of the powers conferred by section 3 of the Kerala Essential Articles Control (Temporary Powers) Act, 1961. It obliges the Board to collect surcharges from non-licensee consumers of electricity even though the Board may have entered into long-term contracts with them with regard to the rate at which electricity is to be supplied to them. The Act is one to provide, in the interest of the general public for the control of the production, supply and distribution of, and trade and commerce in, certain articles. Section 2(a) of the Act defines "essential articles" as meaning any article (not being an essential commodity as defined in the Essential Commidities Act, 1955) which may be declared by the Government by notified order to be an essential article.
Section 3 enables the Government, if of opinion that it is necessary or expedient so to do for maintaining or increasing the supplies of any essential article or for securing their equitable distribution and availability at fair prices, to make notified orders providing for:
(a) regulating by licences, permits or otherwise the production or manufacture of any esential article:
(b) controlling the price at which any essential article may be bought or sold;
561 (c) regulating by licences, permits, or otherwise the storage, distribution, transport, disposal, acquisition, use or consumption of any essential article;
(d) prohibiting the withholding from sale of any essential article ordinarily kept for sale;
(e) requiring any person holding in stock any essential article to sell the whole or a specified part of the stock to the Government or to an officer or agent of the Government or to such other person or class of persons and in such circumstances as may be specified in the order;
(f) regulating or prohibiting any class of commercial or financial transactions relating to any essential article, which, in the opinion of the authority making the order, are, or if unregulated are likely to be detrimental to the public interest;
(g) collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters;
(h) requiring persons engaged in the production, supply or distribution of, or trade or commerce in any essential article to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto as may be specified in the order;
(i) regulating the processing of any essential article;
(j) exercising over the whole or any part of an existing undertaking, such functions of control and subject to such conditions, as may be specified in the order;
(k) any incidental and supplementary matters including in particular the entering and search of premises vehicles, vessels and aircraft, the seizure by a person authorised to make such search of any article in respect of which such person has reason to believe that a contravention of the order has been, is being or is about to be committed, the grant or issue of licences, permits or other documents, and the charging of fees therefore.
In exercise of the powers under section 2(a) electricity was declared as an essential article in 1965. Electricity is the only article declared as an essential article under the Act so far and in spite of the wide powers with regard to making of notified orders under section 3 the impugned Surcharge Order is the only order so far made. It provides, as already stated, for levying of a surcharge on supplies of electricity made to bulk consumers, many of whom are respondents in these appeals.
The validity of the Act itself is not seriously questioned except in one respect which we shall deal with later; but it is contended that by the declaration of electricity as an essential article under the Act, the 562 Act impinges upon various matters either in List I or List III of the Seventh Schedule to the Constitution. According to Mr. Gupte, who appeared for the respondent in Civil Appeal No. 2557 of 1969, the legislation is repugnant to the Electricity Act, 1910 and the Electricity (Supply) Act, 1948, in particular the latter, which falls within Entries 43 and 44 of List I. According to Mr. B. Sen, who appeared for the respondents in Civil Appeal No. 20 of 1970, the Act trenches upon the field occupied by the Electricity (Supply) Act, 1948 which falls partly under Entry 43 of List I and partly under Entry 38 of List III. According to Mr. G. B. Pai, who appeared for the 1st respondent in Civil No. 1733 of 1972 the 1948 Act falls within Entry 44 of List I and the Kerala Act impinges upon that field. On the contrary, the Solicitor General appearing on behalf of the Kerala State Electricity Board contends that the Kerala Act falls under Entries 26 and 27 of List II of the Seventh Schedule to the Constitution.
There is, in the arguments on behalf of the respondents, a certain amount of confusion. The question of repugnance arises only in case both the legislations fall within the same List III. There can, therefore, be no question of repugnance between the Electricity Act and the Electricity (Supply) Act on the one hand and the Kerala Act on the other, if the former fall in List I or List III and the latter in List II. If any legislation is enacted by a State Legislature in respect of a matter falling within List I that will be without jurisdiction and therefore void.
The scope of the legislative powers of the Parliament and the State Legislatures is now well settled. They are found in Article 246 of the Constitution, which reads :
246. (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").
(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of a State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in the Constitution referred to as the "State List").
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List." 563 In view of the provisions of Article 254, the power of Parliament to legislate in regard to matters in List III, which are dealt with by clause (2) is supreme. The Parliament has exclusive power to legislate with respect to matters in List I. The State Legislature has exclusive power to legislate with respect to matters in List II. But this is subject to the provisions of clause (1) (leaving out for the moment the reference to clause 2). The power of Parliament to legislate with respect to matters included in List I is supreme notwithstanding anything contained in clause (3) (again leaving out of consideration the provisions of clause 2). Now what is the meaning of the words "notwithstanding" in clause (1) and "subject to" in clause (3) ? They mean that where an entry is in general terms in List II and part of that entry is in specific terms in List I, the entry in List I takes effect notwithstanding the entry in List II.
This is also on the principle that the `special' excludes the `general' and the general entry in List II is subject to the special entry in List I. For instance, though house accommodation and rent control might fall within either the State List or the Concurrent List, Entry 3 in List I of Seventh Schedule carves out the subject of rent control and house accommodation in cantonments from the general subject of house accommodation and rent control (see Indu Bhusan v. Sundari Devi(1). Furthermore, the word `notwithstanding' in clause (1) also means that if it is not possible to reconcile the two entries the entry in List I will prevail.
But before that happens attempt should be made to decide in which list a particular legislation falls. For deciding under which entry a particular legislation falls the theory of "pith and substance" has been evolved by the Courts. If in pith and substance a legislation falls within one List or the other but some portion of the subject matter of that legislation incidentally trenches upon and might come to fall under another List, the Act as a whole would be valid notwithstanding such incidental trenching. These principles have been laid down in a number of decisions.
In re The Central Provinces and Berar Act No. XIV of 1938(2) Sir Maurice Gwyer observed, with reference to the corresponding provisions of the Government of India Act, as follows :
"It will be observed that by s.100(1) the Federal Legislature is given exclusive powers enumerated in the Federal Legislative List, "notwithstanding anything in the two next succeeding sub-sections" of that section.
Sub-section (2) is not relevant to the present case, but s.s.(3) is, as I have stated; the enactment which gives to the Provincial Legislatures the exclusive powers enumerated in the Provincial Legislative List.
Similarly Provincial Legislatures are given by s.100(3) the exclusive powers in the Provincil Legislative List "subject to the two preceding sub-sections", that is s.ss. (1) and (2). Accordingly, the Government of India further contend that, even if the impugned Act were otherwise within the competence of the Provincial Legislature, it is nevertheless invalid, because the effect of the 564 non-obstante clause in s.100(1), and a fortiori of that clause read with the opening words of s.100(3), is to make the federal power prevail if federal and provincial legislative powers overlap." He observed further :
"Only in the Indian Constitution Act can the particular problem arise which is now under consideration; and an endeavour must be made to solve it, as the Judicial Committee have said, by having recourse to the context and scheme of the Act, and a reconciliation attempted between two apparently conflicting jurisdictions by reading the two entries together and by interpreting, and, where necessary, modifying, the language of the one by that of the other. If indeed such a reconciliation should prove impossible, then, and only then, will the non-obstante clause operate and the federal power prevail; for the clause ought to be regarded as a last resource, a witness to the imperfections of human expression and the fallibility of legal draftsmanship." In Subrahmanyan Chettiar v. Mutuswami Goundan(1) the same learned C.J. observed :
"Section 100(3) of the Constitution Act provides that a Provincial Legislature has the exclusive power of legislating with respect to the matters enumerated in List II, the Provincial Legislative List. But this power is expressly stated to be subject to the provisions of s.100(1), which give an exclusive power to the Federal Legislature to legislate with respect to the matters enumerated in List I, the Federal Legislative List. Hence, though Parliament has no doubt done its best to enact two lists of mutually exclusive powers, it has also provided, ex-majori cautela, that if the two sets of legislative powers should be found to overlap, then the federal legislation is to prevail.
And the reason for this is clear. However carefully and precisely lists of legislative subjects are defined, it is practically impossible to ensure that they never overlap; and an absurd situation would result if two inconsistent laws, each of equal validity, could exist side by side within the same territory." In the same case Sulaiman, J. observed:
"On a very strict interpretation of s.100, it would necessarily follow that from all matters in List II which are exclusively assigned to Provinicial Legislatures, all portions which fall in List I or List III, must be excluded. Similarly, from all matters falling in List III, all portions which fall in List I must be excluded. The section would then mean that the Federal Legislature has full and exclusive power to legislate with respect to matters in List I, and has 565 also power to legislate with respect to matters in List III. A Provincial Legislature has exclusive power to legislate with respect to List II, minus matters falling in List I or List III, has concurrent power to legislate with respect to matters in List III, minus matters falling in List I. In its fullest scope, s. 100 would then mean that if it happens that there is any subject in List II which also falls in List I or List III, it must be taken as cut out from List II. On this strict interpretation there would be no question of any real overlapping at all. If a subject falls exclusively in List II and no other List, then the power of the Provincial Legislatures is supreme. But if it does also fall within List I, then it must be deemed as if it is not included in List II at all. Similarly, if it also falls in List III, it must be deemed to have been excluded from List II. The dominant position of the Central Legislature with regard to matters in List I and List III is thus established. But the rigour of the literal interpretation is relaxed by the use of the words "with respect to" which as already pointed out only signify "pith and substance", and do not forbid a mere incidental encroachment." In Governor General in Council v. Province of Madras(1) the Judicial Committee of the Privy Council observed :
"For in a Federal Constitution, in which there is a division of legislative powers between Central and Provincial legislatures, it appears to be inevitable that controversy should arise whether one or other legislature is not exceeding its own, and encroaching on the other's constitutional legislative power, and in such a controversy it is a principle, which their Lordships do not hesitate to apply in the present case, that it is not the name of the tax but its real nature, its "pith and substance" as it has sometimes been said, which must determine into what category it falls." In Prafulla Kumar Mukherjee and Others v. Bank of Commerce, Limited, Khulna(2) the Judicial Committee of the Privy Council quoted with approval the observations of Sir Maurice Gwyer C.J. in Subrahmanyan Chettiar's case (supra) to the effect :
"It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind observance to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its `pith and substance,' or 566 its `true nature and character,' for the purpose of determining whether it is legislation with respect to matters in this list or in that." They also held :
"Thirdly, the extent of the invasion by the Provinces into subjects enumerated in the Federal List has to be considered. No doubt, it is an important matter, not, as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion, but for the purpose of determining what is the pith and substance of the impugned Act. Its provisions may advance so far into Federal territory as to show that its true nature is not concerned with Provincial matters, but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not money lending but promissory notes or banking ? Once that question is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true content. This view places the precedence accorded to the three lists in its proper perspective." The matter has been elaborately discussed in Union v.
H. S. Dhillon(1). All the relevant earlier decisions have been considered there and for the purpose of these cases it is not necessary to enter into any further discussion on this aspect.
Having discussed the question of the legislative field it might be necessary to discuss the question as to what happens if it should be held that the matter under consideration in these cases falls within the Concurrent List, that is, Entry 38 in List III as contended in the alternative by some of the respondents. As already mentioned the question will arise only if it should be held that the Kerala State Act falls under Entry 38 as contended by Mr. B. Sen. If the impugned legislation falls under List III then the question of repugnancy of that legislation with the existing law or the law made by Parliament, as the case may be, will have to be considered. Both the 1910 Act as well as the 1948 Act are existing law as contemplated under Article 372 of the Constitution. An existing law continues to be valid even though the legislative power with respect to the subject matter of the existing law might be in a different list under the Constitution from the list under which it would have fallen under the Government of India Act, 1935.
But after the Constitution came into force an existing law could be amended or repealed only by the legislature which would be competent to enact that law if it were to be newly enacted. In that sense both the 1910 Act and the 1948 Act could be amended or repealed by the Parliament and also by the State Legislature if it obtains the Presitential assent to an Act amending or repealing the 1910 Act or 1948 Act (leaving aside for the moment the question whether they 567 fall wholly or partly under Entries 43 and 44 of List I of the Seventh Schedule to the Constitution). That the question of repugnancy can arise only with reference to a legislation falling under the Concurrent List is now well settled. In A. S. Krishna v. State of Madras(1) after referring to section 107 of the Government of India Act, 1935, which is in terms similar to clause (1) of Article 254, this Court observed:
"For this section to apply, two conditions must be fulfilled : (1) The provisions of the Provincial law and those of the Central legislation must both be in respect of a matter which is enumerated in the Concurrent List, and (2) they must be repugnant to each other. It is only when both these requirements are satisfied that the provincial law will, to the extent of the repugnancy, become void." To the similar effect is the decision in P. N. Kaul v. The State of J&K(2). The whole question of repugnancy is elaborately discussed in J & K State v. M. S. Farooqi(3).
Let us now, therefore, consider what in its pith and substance is the subject matter of the Kerala Act. Is it an Act dealing with incorporation, regulation and winding up of trading corporations, including banking, insurance and any financial corporation’s but not including cooperative societies (Entry 43); or incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities (Entry 44)? Clearly the Act itself does not deal with any of these subjects. It is true that the notification issued under section 2(a) declaring electricity as an essential article enable orders to be made under section 3 of the Act. But the only question we are concerned with in this case is the validity of the surcharge order. No notified order has been made under any of the powers conferred on the State by section 3 except the impugned Surcharge Order. If the Act had stood as it is or even if the notification had stood as it is nobody would have any cause for complaint. It is only by the issue of the Surcharge Order that the respondents have been affected. It is for the purpose of deciding the question of the validity of the Surcharge Order that we have to decide the validity of the declaration under section 2(a) of electricity as an essential article. Does the notification make the legislation one relating to electricity under Entry 38 of List III ? Was it necessary to get the President's assent for this notification as contended of the respondents ? Quite clearly no Presidential assent to the notification.
Article 254(2) does not contemplate assent to notifications issued under the Act. The Article contemplates Presidential assent only to laws made by the Legislature of a State. We shall later deal with the question whether the assent of the President to the Act after the 1965 notification declaring electricity as an essential article validates that notification.
The Electricity Act 1910 and the Electricity (Supply) Act, 1948 can be said to cover the whole field relating to electricity under Entry 568 38 of List III of the Seventh Schedule. We are clearly of the opinion that the argument of Mr. Pai that the 1948 Act falls under Entry 44 of List I has no substance. It does not deal with the incorporation, regulation and winding up of a corporation with objects not confined to one State. The Central Electricity Authority created by that Act is not an incorporated body, whereas the various State Electricity Boards are incorporated. The Act deals with the incorporation and regulation of the State Electricity Boards. Where a State Electricity Board is to operate beyond the limits of the State for which it is constituted, it is done only by means of an agreement with the other State in which it is to operate. The Statement of Objects and Reasons of that Act does not help his contention. The coordinated development of electricity in India on a regional basis, for which the Government felt it necessary to bring in legislation which resulted in the Electricity (Supply) Act, 1948 cannot show that it deals with the incorporation and regulation of an inter-State corporation. The statement itself proceeds on the basis that the executive power will vest in the Provinces, which means that the legislation falls in the Concurrent List. The Statement of Objects and Reasons also mentions the necessity for the constitution of semi-autonomous bodies like Electricity Boards to administer the grid systems. The Electricity Boards, as already mentioned, are confined to the jurisdiction of States. The Statement of Objects and Reasons itself shows that what was contemplated was a legislation under the Entry in the Concurrent List. The Statement of Objects and Reasons, however, mentions Entry 33 of the Federal List of the Government of India Act, 1935 as the Entry under which the legislation was undertaken. That Entry corresponds to Entries 43 and 44 of List I of Seventh Schedule to the Constitution. Therefore, the Statement of Objects and Reasons does not show that the Electricity (Supply) Act falls under Entry 44. The question then is whether it falls within Entry 43. The fact that the Statement of Objects and Reasons mentions Entry 33 of List I (of the Government of India Act) as the legislative head under which the legislation was being undertaken is not conclusive. We have, therefore to consider whether the Electricity (Supply) Act, 1948 falls under Entry 43 as contended by some of the respondents.
There is no doubt that the Act does deal with the incorporation and regulation of the Electricity Boards, but the question is whether in pith and substance it is a legislation regarding the constitution and regulation of the Electricity Boards falling under Entry 43 of List I or on electricity falling under Entry 38 of List III. The object of the Electricity (Supply) Act as seen from the preamble is to rationalise the production and supply of electricity and to take measures conducive to electrical development. In the Statement of Objects and Reasons it is stated that "there is necessity for the constitution of semi-autonomous bodies like Electricity Boards to administer the grid system on quasi-commercial lines, and that such Boards cannot, however, be set up by Provincial Governments under the existing Constitutional Act as they would be in the nature of trading corporations within the meaning of Entry 33 of the Federal Legislative List." The Statement of Objects and 569 Reasons though not relevant for the purpose of interpreting the sections of the Act, will throw light upon the object of the legislature from the historical viewpoint.
Let us now look at the Act itself. Section 3 provides for the constitution of a Central Electricity Authority. It says that the Central Government shall constitute a body called the Central Electricity Authority to exerise such functions and perform such duties and in such manner as the Central Government may prescribe or direct. Section 5 provides for the constitution and composition of State Electricity Boards. Section 6 says that the Government of any State may in lieu of constituting a Board under section 5 enter into an agreement with the Government of a contiguous State to provide that the Board constituted for the latter State shall exercise the functions of a Board under the Act in the former State. Section 7 deals with the effect of inter-State agreement as contemplated in section
6. Section 8 provides for terms and conditions of appointment of the members of the Board. Section 9 relates to the qualifications of the members of the Board. Section 10 deals with removal or suspension of the members of the Board. Section 10A gives power to the State Government to declare void certain transactions in connection with which a member has been removed under the provisions of section 10 on 12 provides that the Board shall be a body corporate.
Section 14 provides for the meetings of the Board. Section 15 deals with the appointment of the staff by the Board.
Section 16 states that the State Government shall constitute a State Electricity Consultative Council for the State and provides for constitution of that body. Section 17 provides for the constitution of a Local Advisory Committee. Section 18 describes the general duties of the Board. Section 19 says that the Board may supply electricity to any licensee or person requring such supply in any area in which a schme sanctioned under Chapter V is in force. Section 20 provides for power of the Board to engage in certain undertakings.
Section 21 concerns the power of the Board in relation to water-power. By section 22 the Board is invested with power to conduct investigations, experiments and trials for the improvement of the methods of transmission, distribution and supply etc. of electricity. Section 24 deals with the power of the Board to contribute to contribute to certain associations engaged in generation, distribution and supply of electricity. Section 25 says that the Board may, from time to time, appoint qualified persons to be Consulting Engineers to the Board. Section 26 says that the Board shall have all the powers and obligations of a licensee under the Indian Electricity Act, 1910. Section 28 concerns the preparation of scheme for establishement of generating stations etc. Section 29 provides for publication and sanctioning of schemes prepared under section 28. Section 30 deals with the matters to be considered by the authority in recommending a scheme. Sections 31 and 32 also relate to sechemes. Section 34 deals with controlled stations. Section 35 provides for the supply by the Board to licensees owning generating stations while section 36 gives power to the Board to close down generating stations. Section 37 provides for Purchase of generating stations of undertaking or main transmission lines by the Board. Section 38 makes provision for establishing new generating stations by 570 the Board. Section 39 deals with the arrangements to be made with the licensee for operation of the Board's generating stations. Section 40 makes provision regarding the connections with main transmission lines purchased by the Board. Section 41 relates to the use by the Board of transmission lines. Section 42 provides for power of the Board for placing wires, poles etc. Section 43 describes the powers of the Board to enter into arrangements for purchase or sale of electricity' under certain conditions. Section 44 places certain restrictions on establishment of new generating stations or major additions or replacement of plant in generating statons. Section 45 says that if any licensee fails to close down his generating station, pursuant to a declaration of the Board under section 36, or if any person establishes or acquires a new. generating station, the Board may authorise any of its officers to enter upon the premisess of such station and shut down the station. Section 46 provides for Grid Tariff. It says that a tariff to be known as the Grid Tariff shall, in accordance with any regulations made in this behalf, be fixed from time to time by the Board in respect of each area for which a scheme is in force, and tafiffs fixed under the section may, if the Board thinks fit, differ for different areas, and subsection (2) of that section provides that the Grid Tariff shall apply to sales of electricity by the Board to licensees in other so required under any of the first, second and third schedules and shall also be applicable to sales of electricity by the Board to licensees in other cases. Section 47 vests power in the Board to make alternative arrannements with licensees. Section 49 makes provision for sale of electricity by the Board to persons other than licensees. Section 50 says that the Board should not supply electricity in certain circumstances. Section 55 provides that licensees should comply with the directions of the Board. Section 63 says that the State Government may make subventions to the Board for the purpose of the Act.
Section 64 provides for loans by the State Government to the Board. Section 65 gives power to the Board to borrow.
Section 66 provides for guaranteeing of loans raised by the Board by the State Government. Section 67 provides for priority of the liabilies of the Board. Section 68 makes provision for depreciation reserve. Secton 69 deals with the accounts of the Board and their audit. Section 76 provides for arbitration of all disputes arising between the State Government or the Board and licensee or other person.
Section 78 vests power in the State Government to make rules. Section 78A says that in the discharge of its functions, the Board shall be guided by such directions on question of policy as may be given to it by the Government.
Section 79 vests power in the Board to make regulations.
Section 81 says that all members, officers and servants of the Board shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code .
It would be obvious that one part of the Act does deal with the constitution of the Board, the incorporation of the Board and the regulation of its activities. But the main purpose of the Act is for rationalising the production and supply of electicity. The regulation contemplated in Entries 43 and 44 is not regulation of the business of production, distribution and supply of electricity of the corporation.
As the 1910 and 1948 Acts together f
