AMALGAMATED ELECTRICITY CO. versus MUNICIPAL COMMITTEE, AJMER

Citation: [1969] 1 S.C.R. 430 · Decided: 25-07-1968 · Supreme Court of India · Bench: R.S. BACHAWAT · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

AMALGAMATED ELECTRICITY CO. 
v. 
MUNICIPAL COMMITTEE, AJMER 
July 25, 1968 
[R. S. BACHAWAT AND K. S. HEGDE, JJ.] 
Ajmer Merwara Afunicipa/ities Regulation, I 925, s. 223-Municipality 
/aih lo pay surcilarge levied regcrding supply of ekctriclty-Suit to rt>-
cuv.er-Notice under seer ion, if necessary. 
Bombay Electricity Surcharge Act (Bom. Act 19 of 1946) /JS. 
3, 4 
and 6-Power of Commissioner to issue notifications levying surcharge. 
India• Electricity Act (9 of 1910) Schedule, cl. 12-Sections 3 and 
4 of Bomb«y Act if ultra vires, cl. 12 of Schedule. 
The Ajmer Electric Supply Co. Ltd. a licensee under the Indian Electri-
city Act, 1910, entered into two contracts with the respondent-Municipal 
Committee, (i) for supplying electricity for street lighting. and (ii) for 
pumping water from the wells belonging to the respondent at a parlicular 
place. The Bombay Electricity Surcharge Act. 1946, was extended to the 
province of Aimer Merwar subject to certain modifications. Thereafter, the 
Ajmer Electric Supply Co. applied under s. 3 of the Bombay Act, to the 
Chief Commissioner, for imposing the surcharge provided in that section,. 
to meet its increased cost. 
The Chief Commissioner issued a notification 
and on the basis of that notification the Ajmer Electric Supply Co. called 
upon the respondent by a notice, to pay the surcharge detailed therein 
with respect to the two contracts. 
As the respondent did not comply 
with the demand, the appellant, with which the Ajmer Electric Supply 
Company was amalgamated, filed a suit for the recovery of the surcharge. 
The trial Coun decreed the suit but the High Coun set aside the 
decree on the grounds : ( 1) Before filing the suit a notice as required by 
s. 233 of the Ajmer Merwar Municipalities Regulation, 1925, was not 
given; (2) The Commissioner's notification imposing the impugned 
sur~ 
charge was beyond the provisions of the Bombay Act, becauSe of the 
omission of certain words from s. 6 of that Act as extended to Ajmer 
Merwara; and (3) The relevant provisions of the Bombay Act, namely, 
ss. 3 and 4 were ultra vires cl. 12 of the Schedule to the Indian Electricity 
Aet. 
In appeal to this Court. 
HELD : (I) No notice under s. 233 of the Ajmer Merwar Munici-
palities Regulation was necessary before instituting the suit. [438 EJ 
Under the section a notice is necessary w~ the suit is filed against 
the Committee only in respect of any act done in its official 
capacity. 
The expression 'act' includes an 
ille~al omission; but, before an omission 
can be considered as an illegal omission, it must be shown that there was 
an omission to discharge some official duty imposed in public interest. 
That is the non-discharge of the duty must amount to an illegality entail-
ing penal consequences. [436 B, GJ 
Jn the present ca!lie, the appellanf's contention wa.~ that it was entitled 
to recover from the respondent the amount or surcharge claimed, while 
the respondent's ca"' was a bonafide contention, namely, that the levy of 
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AMALGAMATED ELECT, CO. V. MUNIC. COMTT. 
43l· 
surcharge was invalid. 
Under the Regulation it was the duty of the res-
pondent to discharge all its liabilities, but failure to do so would not 
ordinarily make it an illegal omission, because, the respondent or its 
members or office bearers could not be punished for their failure to pay 
the amount due to the appellant. [436 D-GJ 
Revati Mohan Das v. Jitendra Mohan Ghosh, 61 I.A. 171, applied. 
Debendra Nath Roy v. Official Receiver, A.LR. 
)938 
Cal. 
191 
approved. 
Bhagchand Dagdusa Gujrathi v. Secretary of State for 
India, 
54 
I.A. 338, distinguished. 
(2) The provisions of s. 3 of the Bombay Act empower the Chief 
Commissioner to levy surcharge on the bills for the supply of electricity 
for street lighting. 
Section 4 empowers the licensee to collect from the 
c.onsumer the surcharge levied. Municipal councils are not excluded from 
the operation of ss. 3 and 4 of the Act as extended to Ajmer Merwar. 
Similarly, electrical energy supplied on the basis of a contract is not 
excluded from the operation of s. 3. 
For taking action on the basis of 
those secti0ns no assistance is needed from s. 6, and so. s. 6 as it stood 
originally or as modified does not in any manner cut down the operation 
of ss. 3 and 4. Therefore, the High Court was \vrong in its decision that 
the notification issued by the Chief Commissioner levying surcharge o

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