BHARAT HYDRO POWER CORPN. LTD. AND ORS. versus STATE OF ASSAM AND ANR.

Citation: [2004] 1 S.C.R. 284 · Decided: 07-01-2004 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Dismissed
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Judgment (excerpt)

A 
BHARAT HYDRO POWER CORPN. LTD. AND ORS. 
'( l 
v. 
STATE OF ASSAM AND ANR. 
JANUARY 7, 2004 
B 
[ASHOK BHAN AND S.B. SINHA, JJ.] 
Constitution of India-Articles 245, 246 & 254; Entry 56 of list I; Entry 
t"'i 
17 of list II and Entries 38 & 42 of list Ill to the Seventh Schedule-Indian 
c 
Electricity Act, 1910-Sections 6, 7, & 7 A-Electricity (Supply) Act, 1948-
Sections 2(4A) 2(6), 26A-Bharat Hydro Power Corporation Limited 
(Acquisition and Transfer of Undertaking) Act, 1996-State Act meant to take 
over appellant's power pr<4ect-Writ petition by appellant contending that 
State Act is repugnant to the Central Acts-Validity of-Held, the State Act 
and the Central Acts operate in two different fields and hence not repugnant 
D to each other. 
The Planning Commissi:>n of India sanctioned a proposal of the State 
Electricity Board for construction of a Hydro Electric Power project at 
an estimated cost of Rs. 36.36 crores. The project could not be completed 
in time owing to the failure of local contra1:tors. The State Government, 
E following the policy of privatisation adopted by the Central Government 
in power sector, decided to transfer the project to a joint sector company. 
A Memorandum of Undertaking (MOU) was entered into by the Board 
with appellant no.2. The appellant no.I, after its incorporation could 
complete the project within the stipulated time. The Board terminated and 
F repudiated the MOU on the failure of appellant No.I to complete the work 
within the extended period. 
.. 
The State on account of the inordinate delay in the completion of 
the project and to safeguard the public interest by completing the project 
as early as possible due to acute power shortage in the State, promulgated 
G the Bharat Hydro Power Corporation Limited (Acquisition and Transfer 
of Undertaking) Act, 1996 acquiring the undertaking of appellant No. I. 
The State Government by a Notification transferred to and vested the 
project in the Board. 
..,,- ' 
Appellants filed writ petitions before High Court challenging the 
H 
284 
• 1 
BHARAT HYDRO POWER CORPN. LTD. v. STATE 
285 
legality anil constitutional validity of the Act being ultra vires and violative A 
of Articles 14 and 19 (I) (g) of the Constitution of India. A Single Judge 
of the High Court struck down the Act holding that the State Act falls 
under Entry 38 of List Ill of Seventh Schedule to the Constitution of India 
which is already covered· hy Central Acts viz. the Indian Electricity Act, 
1910 (Act of 1910) and Electricity (Supply) Act, 1948 (Act of 1948); and B 
that the State Legislature is not competent to enact laws repugnant to the 
Central laws under the same Entry. In Writ appeals by the State and the 
Board, the High Court held the State Act to be intra vires on the ground 
that it falls under Entry 17 of List II and therefore not repugnant to the 
Central legislation. 
In appeal to this Court, the appellants contended that the State Act 
falls under Entry 38 of List Ill of the Seventh Schedule to the Constitution 
of India; that the two Central Acts are already operating in the same field 
and the appellants are governed under the Central Acts; that there are 
provisions under the Act of 1910 for compulsory purchase of undertakings 
produci:1g electricity; that they are deemed licences being a 'Generating 
Company' under the Act of 1948; that the State Act creates a procedure 
parallel to the existing procedure provided under the Act of 1910 & 1948 
and hence the State Act is bad in law as it transgresses the Central Acts 
and therefore repugnant to the Central Acts under Article 254 of the 
Constitution of India. 
c 
D 
E 
The respondents contended that in pith and substance, the State Act 
is not repugnant to the Central Acts as they operate in different fields; 
that the State Act is enacted to acquire the undertaking, whereas both the 
Central Acts have mad~ general provisions with regard to supply and use 
of electrical energy; and that the appellants were not licensees under the F 
Central Acts and hence the State has the jurisdiction and power to acquire 
any property for public purposes making necessary provisions for payment 
of compensation. 
Dismissing the appeals, the Court 
G 
HELD: I.I. The Bharat Hydro Power Corporation Limited 
(Acquisition and Transfer of Undertaking) Act, 1996 has been enacted to 
take over the Bharat Hydro Power Corporation in public interest as it 
could not complete the project within time so that the S
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