LexBHUSAWAL BOROUGH MUNICIPALITY versus AMALGAMATED ELECTRICITY CO. LTD. & ANR.
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- 5 S.C.R. SUPREME COURT REPORTS 905 Cases under the former rule 30 cannot be used as 1963 precedents because the present rule 3(b' has been -materially altered by the addition of the proviso. Life Insurance Formerly the rule tried to serve both the objects by Corporation Ltd. using the word "may" but the word "may" which v. gave a discretion to the Income-tax Officer could Commissioner lead to arbitrary actions and the rule is now in two of Income-tax. parts, the main rule leaving no discretion and the Delhi & proviso conferring a power subject to certain con- Rajasthan ditions. In the result, I disagree with the High Court in the answer which it gave to the question. The proper answer was in the negative. I agree, therefore, that the appeals be allowed with costs on the respondent here and in the High Court. Appeals allowed. BHUSAWAL BOROUGH MUNICIPALITY v. Hidayatu/lah J. 1963 AMALGAMATED ELECTRICITY CO. LTD. & December 10 ANR. <' (B.P. SINHA, CJ., RAGHUBAR DAYAL, N. RATAGOPALA , I AYYANGAR AND J.R. MuoHOLKAR JJ.) Bombay Electricity Supply (Licensed Undertakings was Costsl Order, 944. cl. 5-Scope of-Construction of document--If question of /aw. The Municipality filed two suits to claim refund of two sums of money paid by them to the respondent no. 1 under protest as electricity charges. The defence of the respondent no. 1 was that the dispute between it and the municipality was decided by the Government of Bombay and that under the second proviso to cl. 5 of the Surcharge Order, 1944 the decision of the Government was final and binding both on the appellant and the responc!~nt no. !. The decision of the Government was communicated to the parties by the letter dated May 22, 1946. The appellant succeeded in both the suits in the trial court as well as the District 906 SUPREME COURT REPORTS [ 1964] 1963 Court. In second appeaL the High Court dismissed the two suits. Hence this appeal. Bhusawa/ Borough Municipality Held: (i) The Municipality was not entitled to claim refund because the dispute between the parties had been decided by the Government under the second proviso to cl. 5 of the Sm'charge Order, I 944. The decision of the Government was final and bind- A I v. d ing on the parties. nla gamate Electricity Co (ii) The communication da!ed May 22, 1946 sent by the Govern- ., ment to both the parties was a final decision under the secon<!: Ltd. & Anr. proviso to cl. 5 of the Surcharge Order, 1944. There is no reason to think that the communication contains nothing but the opinion of the Government. (iii) The second proviso to cl. 5 of the Surcharge Order does not require that the dispute has to be referred by both the parties. Such a dispute can be referred by one of the parties as is clear from the language of the proviso which says "in the event of dispute by any party interested" the decision of the provincial Govemment shall be final. (iv) The Trial Court and the District Court had wholly mis- construed the document dated May 22, 1946 which is not merely of evidentiary value but is one upon which the claim of the respon- dent no. 1 for the surcharge is based. Misconstruction of such a document would thus be an error of Jaw and the High Court in second appeal would be entitled to correct it. CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 47 and 48 of 1961. Appeals by special leave from the judgment and decree dated August 5, 1957, of the Bombay High Court in Appeal No. 1085 of 1954 with second Appeal No. 1086 of 1954. G.S. Pathak and Naunit Lal, for the appellant. I.N. Shroff, for respondent no. 1. M.S.K. Sastri and R.H. Dhebar, for respondent no. 2. December 10, 1963. The Judgment of the Court was delivered by Mudholkar J. MuDHOLKAR J.-This judgment will also govern C.A. no. 48 of 1961. Both the appeals are by special leave from the judgment of the Bombay High Court .... - 1w~ .,-- y in second appeal disposing of two appeals which ~ arise out of two separate suits instituted by the appel- ~ lant, the Borough Municipality of Bhusawal, against i .t ! ' 5 S.C.R. SUPREME COlJRT REPORTS 907 the Bhusawal Electricity Co. Ltd., respondent No. 1 before us, to which suits the State of Bombay was later added as a defendant. 1963 Bhusawal Borough Municipality In each of the two suits the appellant had claimed refund of two sums of money paid by them to the· respondent No. 1 under protest as electricity
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