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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Standing Counsel
  • S.D. Agarwal
Judges
  • Satish Chandra
  • N.D Ojha, JJ.
Acts
  • Act introduced Secs. 57 and 57-A and 6th and 7 the Schedules to the Supply Act. Sec. 57
  • clause (aa) of sub-sec. (2) of Sec. 3 of the Temporary Act of 1947. Both these provisions
  • Act, No. 32 of 1959, the Central Legislature amended the Indian Electricity Act, 1910.
  • clause (aa) of Sec. 3(2) of the U.P Electricity (Temporary Powers of Control) Act, 1947,
  • Act, No. 101 of 1956, and with Sec. 22-B of the Indian Electricity Act, 1910,
  • Article 254(2) of the Constitution. Since the Parliament Act of 1956
  • Sec. 22-B of the Electricity Act, 1910, as amended by Act 32 of 1959.
  • Sec. 3 of the U.P Electricity (Temporary Powers of Control) Act, 1947.
  • clause (aa) of sub-sec. (2) of Sec. 3 of the Temporary Act, of 1947,
  • Acts amended sub-sec. (4) of Sec. 1 of the Temporary Act of 1947
  • Sec. 57 and 57-A of the Electricity Supply Act. No. 54 of 1948,
  • Act No. 7 of 1968 under Article 357(1)(a) of the Constitution,
  • sub-sec. (2)(aa) of Sec. 3 of the Temporary Act of 1947,
  • Electricity Act, 1910, by the amending Act of 1959.
  • clause (aa) of Sec. 3 of the Temporary Act of 1947
  • provisions of Article 31(2) of the Constitution,
  • provisions of the Indian Electricity Act, 1910
  • Acts Nos. 101 of 1956 and 32 of 1959. Exude,
  • Sec. 3(2)(aa) of the Temporary Act of 1947.
  • provisions of the Temporary Act of 1947,
  • Sec. 1(4) of the Original Temporary Act
  • Sec. 3(1) of the Temporary Act of 1947
  • clause (aa) of Sec. 3(2) of the 1947 Act.
  • Sec. 3 of the Temporary Act of 1947
  • Sec. 1(4) the Temporary Act of 1947
  • Central Acts of 1956 and 1959
  • (Amendment) Act No. 101 of 1956,
  • Central Act No. 32 of 1959.2.
  • Defence of India Act 1939,
  • Sec. 22-B to the 1910 Act.
  • Bombay Act No. 33 of 1948
  • ELECTRICITY ACT 1910
  • U.P Act No. 29 of 1956
  • U.P Act No. 26 of 1963
  • U.P Act No. 12 of 1970,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Standing Counsel
  • S.D. Agarwal
Judges
  • Satish Chandra
  • N.D Ojha, JJ.
Acts
  • Act introduced Secs. 57 and 57-A and 6th and 7 the Schedules to the Supply Act. Sec. 57
  • clause (aa) of sub-sec. (2) of Sec. 3 of the Temporary Act of 1947. Both these provisions
  • Act, No. 32 of 1959, the Central Legislature amended the Indian Electricity Act, 1910.
  • clause (aa) of Sec. 3(2) of the U.P Electricity (Temporary Powers of Control) Act, 1947,
  • Act, No. 101 of 1956, and with Sec. 22-B of the Indian Electricity Act, 1910,
  • Article 254(2) of the Constitution. Since the Parliament Act of 1956
  • Sec. 22-B of the Electricity Act, 1910, as amended by Act 32 of 1959.
  • Sec. 3 of the U.P Electricity (Temporary Powers of Control) Act, 1947.
  • clause (aa) of sub-sec. (2) of Sec. 3 of the Temporary Act, of 1947,
  • Acts amended sub-sec. (4) of Sec. 1 of the Temporary Act of 1947
  • Sec. 57 and 57-A of the Electricity Supply Act. No. 54 of 1948,
  • Act No. 7 of 1968 under Article 357(1)(a) of the Constitution,
  • sub-sec. (2)(aa) of Sec. 3 of the Temporary Act of 1947,
  • Electricity Act, 1910, by the amending Act of 1959.
  • clause (aa) of Sec. 3 of the Temporary Act of 1947
  • provisions of Article 31(2) of the Constitution,
  • provisions of the Indian Electricity Act, 1910
  • Acts Nos. 101 of 1956 and 32 of 1959. Exude,
  • Sec. 3(2)(aa) of the Temporary Act of 1947.
  • provisions of the Temporary Act of 1947,
  • Sec. 1(4) of the Original Temporary Act
  • Sec. 3(1) of the Temporary Act of 1947
  • clause (aa) of Sec. 3(2) of the 1947 Act.
  • Sec. 3 of the Temporary Act of 1947
  • Sec. 1(4) the Temporary Act of 1947
  • Central Acts of 1956 and 1959
  • (Amendment) Act No. 101 of 1956,
  • Central Act No. 32 of 1959.2.
  • Defence of India Act 1939,
  • Sec. 22-B to the 1910 Act.
  • Bombay Act No. 33 of 1948
  • ELECTRICITY ACT 1910
  • U.P Act No. 29 of 1956
  • U.P Act No. 26 of 1963
  • U.P Act No. 12 of 1970,
See more information ...
Smart Summary

Summary of Opinion (Satish Chandra, J.)

Factual and Procedural Background

These two appeals were filed by the State of Uttar Pradesh against a judgment of a learned Single Judge which had allowed two writ petitions and directed the State not to take action under Section 3 of the U.P. Electricity (Temporary Powers of Control) Act, 1947 ("the Temporary Act"). The Single Judge found Section 3 void on the ground of repugnancy with Sections 57 and 57-A of the Electricity Supply Act, 1948, as amended by Act No. 101 of 1956, and with Section 22-B of the Indian Electricity Act, 1910, as amended by Central Act No. 32 of 1959.

One of the respondents, Benaras Electric Light and Power Co. Ltd., carried on generation, supply and distribution of electrical energy in Benaras under a licence under the Indian Electricity Act, 1910. The company repeatedly sought increases in rates (notably in 1961, 1965, 1968, 1969 and thereafter). The State Government, relying on clause (aa) of sub‑section (2) of Section 3 of the Temporary Act, repeatedly refused or limited the increases by orders (most of which were not published in the Gazette, except for the notification dated 23rd September 1961). The company instituted a writ petition challenging the validity of the State Government's orders passed under Section 3(2)(aa) of the Temporary Act; the Single Judge allowed the petition on multiple grounds. The State appealed.

Legal Issues Presented

  1. Whether clause (aa) of sub‑section (2) of Section 3 (and the overlapping part of Section 3(1)) of the U.P. Electricity (Temporary Powers of Control) Act, 1947 is repugnant to and therefore impliedly repealed by the provisions of Sections 57 and 57‑A and the 6th and 7th Schedules of the Electricity Supply Act, 1948 (as amended by Act No. 101 of 1956).
  2. Whether clause (aa) of sub‑section (2) of Section 3 (and the overlapping part of Section 3(1)) of the Temporary Act is repugnant to Section 22‑B of the Indian Electricity Act, 1910 introduced by Act No. 32 of 1959.
  3. Whether the successive State Acts that extended the life of the Temporary Act (by substituting later terminal years in Section 1(4)) constituted a re‑enactment creating a new State law on electricity that would affect the operation of Article 254(2) (i.e., whether those continuing Acts made a fresh law subsequent in time to the Central amending Acts).
  4. Whether the State Government's orders passed under Section 3(2)(aa) of the Temporary Act, which were not published as notified orders in the Gazette, were valid and enforceable given that Section 3 authorised the State Government to make notified orders only.
  5. Whether the State Government violated principles of natural justice by not making available to the licensee the report (for example, of the Electrical Inspector) that it took into account when passing its orders.

Arguments of the Parties

Appellant (State of U.P.) — Advocate‑General's Submissions

  • The Temporary Act of 1947 had been reserved for the consideration of the President and had received his assent; accordingly, as a State law on a concurrent subject it would prevail in the State over earlier Central laws under Article 254(2).
  • In the alternative, the various continuing Acts that changed the terminal year in Section 1(4) effectively re‑enacted the Temporary Act (or operated as fresh legislation on the subject) so that the State law could be treated as made (or re‑made) after the Central amending Acts of 1956 and 1959.
  • Alternatively, the competing provisions (Section 3 of the Temporary Act and Sections 57/57‑A and schedules of the Supply Act) do not overlap in operation but operate in different situations—e.g., the Temporary Act was intended to operate in emergency situations and the Supply Act provisions did not address such emergencies.

Respondent (Benaras Electric Light and Power Co. Ltd.) — Contentions as reflected in the opinion

  • The respondent challenged the orders passed by the State under Section 3(2)(aa) of the Temporary Act and sought quashing of those orders — grounds in support of the writ petition are described as being set out in the Single Judge's judgment (the present opinion notes that these grounds were considered by the Single Judge).
  • The respondent also contended that several orders were not notified (i.e., not published in the Gazette) although Section 3 authorised notified orders — rendering them unenforceable.
  • The respondent argued that the State took into account reports (for example the Electrical Inspector's report) which were not disclosed to the company, thereby violating principles of natural justice.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
United States v. Powers (1938) 307 U.S. 1245 Stated that where a temporary Act is extended before it expires the original Act continues in effect and no new law is created; the original Act is given extended life without creating a new statute. The court relied on this authority to support the conclusion that successive State continuing Acts that merely extended the life of the Temporary Act did not amount to fresh legislation on the subject and therefore did not constitute a later State law for the purpose of Article 254(2).
The State of Bombay v. Heman Santlal Alreja, A.I.R. 1952 Bombay 16 Accepted the principle (as expressed by Douglas, J., and Maxwell) that extending or reviving a temporary Act does not create a new law; the original Act continues in operation and is to be regarded as enacted when first passed. The court cited and relied on this decision to confirm that the continuing Acts did not make fresh legislation: the Temporary Act of 1947, as extended, remained the existing State law on the subject of electricity from 1947 onwards.
State of Orissa v. M.S. Tullock's Co., A.I.R. 1964 S.C. 1284 Establishes that where two legislations are "in respect of the same matter" they cannot both remain in operation; one will have to yield under Article 254(2). The court relied on this principle to hold that the Temporary Act and the Supply Act provisions were in respect of the same matter (fixing fair prices for electricity) and thus incompatible provisions could not simultaneously operate; accordingly the later Parliamentary enactments must prevail.

Court's Reasoning and Analysis

The court's analysis proceeded in several linked steps, all based on the materials and authorities cited in the opinion:

  1. Characterisation of the subject and Article 254(2): Electricity is a subject in the concurrent list (Entry 38 of List III). The Temporary Act of 1947 was a State law on that subject, and it had been reserved for Presidential consideration and had received the President's assent. Article 254(2) was therefore engaged in assessing repugnancy between State and Central laws.
  2. Effect of successive State "continuing" Acts: The Advocate‑General argued that the several U.P. Acts which substituted later terminal years in Section 1(4) of the Temporary Act had the effect of re‑enacting the Temporary Act (thereby making State law later in point of time than the Central amending Acts). The court analysed this contention by reference to authority (United States v. Powers, Maxwell on Interpretation and Craies, and the Bombay decision in Heman Santlal Alreja). It concluded that those continuing Acts did not create a new law on the subject; they merely continued the original 1947 Act in force by extending its duration. Thus the Temporary Act of 1947 remained the State legislation on electricity as originally enacted.
  3. Temporal relation of State and Central Acts: Because the continuing Acts did not amount to a fresh State enactment on the subject, the Central Acts of 1956 (amending the Supply Act) and 1959 (introducing Section 22‑B into the 1910 Act) were not "earlier laws" vis‑à‑vis the Temporary Act for the purposes of Article 254(2). Accordingly, the later Parliamentary enactments (the 1956 and 1959 amending Acts) must be treated as subsequent in point of time and, where their provisions are repugnant to the State Act, the Central provisions prevail.
  4. Repugnancy and field overlap: The court compared clause (aa) of Section 3(2) of the Temporary Act (which authorised the State Government to make notified orders regulating rates and relaxing maximum/minimum limits) with Sections 57 and 57‑A and the 6th and 7th Schedules of the Electricity Supply Act, 1948 (as amended in 1956). The Supply Act and schedules set out a specific code for fixing fair prices (including a procedure involving a rating committee, standards for reasonable return, notice requirements and time limits). The court found that both statutes operated "in respect of the same matter" — fixing fair prices and regulating rates — and thus they were competing provisions on the same field.
  5. Inability to avoid repugnancy by reading in "emergency" scope: The Advocate‑General's argument that the Temporary Act was meant to operate only in emergencies (and therefore did not conflict with the Supply Act) was rejected. The court held that Section 3's language did not make exercise of powers dependent on any emergency; so long as the Temporary Act remained in force the State Government could pass notified orders regulating prices. Likewise, the Supply Act provisions applied in all situations, including emergency-like circumstances; therefore repugnancy could not be avoided on the basis of distinct "emergency" operation.
  6. Conclusion on implied repeal: Because the Supply Act (as amended in 1956) and the 1910 Act (as amended in 1959) provided a different approach and code for rate fixation and were subsequent in point of time to the original State Act (given that the continuing Acts did not constitute fresh legislation), the court concluded that clause (aa) of Section 3(2) and the overlapping part of Section 3(1) of the Temporary Act must be deemed impliedly repealed to the extent of repugnancy. The State Government's orders made under those provisions were therefore without authority of law.
  7. Additional point on notification: It was agreed that except for the 23rd September 1961 order, the remaining orders passed between 1965 and 1972 were not notified in the Gazette. Because Section 3 authorised notified orders only, the court held that those non‑notified orders were, in law, inoperative. This provided an additional ground on which impugned orders could be set aside.
  8. Natural justice issue: The Single Judge had found violation of principles of natural justice because the State took into account the Electrical Inspector's report which was not made available to the respondent. The present court noted that the Single Judge had relied on such considerations; however, since the appeals failed on the ground of repugnancy with the Supply Act, the court deemed it unnecessary to traverse all other points in detail.

Holding and Implications

Holding:

The court dismissed the appeals filed by the State of Uttar Pradesh. The operative effect of the judgment of the Single Judge was preserved only insofar as it related to clause (aa) of Section 3(2) of the U.P. Electricity (Temporary Powers of Control) Act, 1947, and Section 3(1) only in so far as it covered the same field as clause (aa).

Implications:

  • The court concluded that the relevant parts of the State Temporary Act (clause (aa) of Section 3(2) and the overlapping portion of Section 3(1)) were repugnant to the later Central enactments (notably the Supply Act as amended in 1956) and must be regarded as impliedly repealed to the extent of that repugnancy. Consequently, orders made by the State Government under those provisions were without lawful authority.
  • Separately, most of the State orders challenged (those not published in the Gazette) were held to be inoperative because Section 3 authorised notified orders only; only the 23rd September 1961 order was notified.
  • The court did not decide whether Section 3 of the Temporary Act as a whole is void for repugnancy; it limited the operative scope of the decision to the specific clause (aa) of Section 3(2) and the overlapping part of Section 3(1). The opinion expressly left open wider questions.
  • No wider legislative or constitutional precedent beyond these specific holdings is asserted by the court in this opinion; the decision's direct effect concerns the invalidity (for repugnancy and for non‑notification where applicable) of the particular State orders and the inapplicability of the State provision (clause (aa) of Section 3(2)) in the face of the later Central Acts.

Result: Appeals dismissed with costs. The operative portion of the Single Judge's judgment (as described above) stands.

Show full summary ...

    State Of Uttar Pradesh v. Benaras Electric Light And Power Co. Ltd., And Others

    Satish Chandra, J.:— These two appeals have been filed by the State of Uttar Pradesh. They raise question, and can be conveniently decided by a common order. They are directed against the judgment of a learned Single Judge allowing two writ petitions and directing the appellant not to take action under Sec. 3 of the U.P Electricity (Temporary Powers of Control) Act, 1947. The learned Judge found that this section was void on the ground of repugnancy with Sec. 57 and 57-A of the Electricity Supply Act. No. 54 of 1948, as amended by the amending Act, No. 101 of 1956, and with Sec. 22-B of the Indian Electricity Act, 1910, as amended by the Central Act No. 32 of 1959.

    2. The relevant and material facts in relation to the Benaras Electric Light and Power Co. Ltd., the respondent in Special Appeal No. 301 of 1972 are as follows:—

    3. The respondent company carries ??? the business of generating, supply ??? distribution of electrical energy in the ??? of Benaras, under a licence granted to ??? under the Electricity Act, 1910.

    4. Under the Defence of India Act 1939, the State Government had been conferred powers of control over production, supply and distribution of electricity with the cessation of hostility, that Act lapsed. The Provincial Legislature ??? that there was need to continue the powers of control. Accordingly, the U.P Electricity (Temporary Powers of Control) Act No. 6 of 1947 was enacted. Sec. 3 ??? this Act provided:—

    “3. Powers to control production supply and distribution—

    (1) The State Government so far as it appears to it to be necessary or expedient for maintaining or increasing supply of electricity or for securing is equitable distribution and availability at fair prices, may by notified order provide for regulating or, prohibiting the production, supply and distribution thereof and trade and commerce therein.

    (2) Without prejudice to the generality of the powers conferred by sub-sec. (1), an order made thereunder may provide:—

    (a)…………………………

    (aa) for regulating the rates which may be charged by any undertaking for supplying electrical energy and for relaxing any maximum or minimum limits otherwise imposed on such rates.”

    5. Shortly thereafter, the Central Legislature enacted the Electricity Supply Act No. 54 of 1948. This Act was passed for the rationalization of production and supply of electricity and for electrical development. The Supply Act was amended by Parliament by the Electricity Supply (Amendment) Act No. 101 of 1956, which came into force on 31-12-1956. This amending Act introduced Secs. 57 and 57-A and 6th and 7 the Schedules to the Supply Act. Sec. 57 provided that the provisions of the 6th and 7th schedules shall be deemed to be incorporated in the licence of every licensee (not being a local authority). It further provided that the provisions of the Indian Electricity Act, 1910 and of any other law, agreement or instrument applicable to the licensee shall be ??? and of no effect in so far as they are inconsistent with Sec. 57-A and the said schedules.

    6. Sec. 57-A provided that the State electricity Board or, where there is no such Board in any State, the State Government lay constitute a rating committee, in case licensee fails to comply with any provisions of the said schedules or in case it ??? a request for it.

    7. The 6th schedule contemplated ??? a licensee should ensure for itself a seasonable return. The licensee was authorised to enhance the rates, which it may charge from its consumers' keeping in ??? the various provisions of the schedule. The rating committee contemplated by ???. 57-A was to examine the charges which licensee had imposed upon its consumers and to report to the State Government, ??? hearing the parties. The State Government had to publish the report of the ??? committee in the official Gazette, he State Government could then pass an order in accordance with the report, fixing ??? charges for the supply of electricity ??? the licensee with effect from a date not ??? than two months or later than three ??? from the date of the publication ??? the report. Thereupon, the licensee as obliged to give effect to the order, he rates fixed under such an order were ??? remain in operation for a period not exceeding three years.

    8. Clause 1 of the 6th Schedule ??? that the licensee was to adjust its charges in such manner as not to exceed ??? reasonable return for itself. The third proviso to this clause prohibited the licence from enhancing the charges for the ripply of electricity until after the expiry ??? a notice in writing of not less than two ??? to the State Government of its intention to enhance the rates.

    9. The scheme of the Supply Act, as mended in 1956, was to authorise the licensee to fix its rates, so that the licensee gets a reasonable return as defined in the 6th, Schedule. It was not to enhance the rates in the manner so as to get more than 20 per cent over and above the reasonable return. If the State Government or the State Electricity Board felt that the fixation or the enhancement of the rates by a licensee was in violation of the provisions of the 6th Schedule, it could constitute a rating committee to examine the question and then pass an order in accordance with the report of the rating committee. Thereupon, the licensee was obliged to adjust the rates accordingly.

    10. As has been seen, the State Government had the power under clause (aa) of Sec. 3 of the Temporary Act of 1947 to regulate the rates which may be charged and to relax the maximum or minimum limits imposed on such rates.

    11. By Act, No. 32 of 1959, the Central Legislature amended the Indian Electricity Act, 1910. It inter alia introduced Sec. 22-B to the 1910 Act. We shall notice this provision in detail if necessary later on.

    12. The respondent company had been agitating for an increase in the rates since 1961. On 31st July, 1961, it gave the statutory notice required by the third proviso to clause 1 of the 6th Schedule to the supply Act of 1948 for raising the rates for supply of electrical energy to the consumers. By a notification dated 23rd September, 1961, under clause (aa) of sub-sec. (2) of Sec. 3 of the Temporary Act, of 1947, the Government rejected the application and directed that the company shall not enhance the rates. This notification was published in the Gazette. The respondent company on 1st September, 1965, again applied to the State Government for enhancement of the rates. This application was rejected by a letter dated 4th November, 1965. The letter stated that the Government did not find any justification for the enhancement. They were satisfied that the existing shortfalls could be easily made up by effecting economy in the coal handling charges and other working arrangements of the company. On 15th July, 1968, the respondent company served upon the State Government a formal notice under the third proviso to clause 1 of the 6th Schedule to the supply Act of its intention to enhance the rates. This application was rejected by an order dated 29th January, 1969. In this order, the Government, however, permitted some increase in the rates. The respondent company by a letter dated 27th August, 1969, gave the requisite notice under the third proviso aforesaid of its intention to raise the rates. By its order dated 30th October, 1969, the State Government acting under sub-sec. (2)(aa) of Sec. 3 of the Temporary Act of 1947, prohibited the respondent company from enhancing the rates. It was stated in the order that the matter of revision of rate? was under the consideration of the Government. On 3rd March, 1970, the State Government passed an order agreeing to a partial revision of the rates. On 26th March, 1970, the respondent company addressed a letter to the State Government stating that the permitted increase in the rates fell far short of their requirements. It requested the Government to advise the company of the reasons which impelled the Government to refuse the required enhancement, and to give the company an opportunity to substantiate its case. To this, the Government replied on 18th September, 1960, stating that the Government was of the opinion that there was no provision in law to furnish figures on the basis of which the revision of rates was permitted. It appears that in pursuance of further representations of the company for increase in rates, the Government by its order dated 19th April, 1972, permitted further enhancement of rates with effect from January, 1972. But it is the common case of the parties that this enhancement also did not fully comply with what the company had proposed. The company thereupon instituted a writ petition in this court, inter alia, praying for the quashing of the orders passed by the State Government under Sec. 3(2)(aa) of the Temporary Act of 1947. The prayer was supported by a number of grounds, which are mentioned in the judgment of the learnce Single Judge.

    13. The learned Single Judge held that Sec. 3 of the Temporary Act of ??? stood impliedly repealed by the Electricity Supply Act, 1948, after its amendment I the Act 101 of 1956; and that Sec. 3 aforesaid was also impliedly repealed by Sec. 22-B of the Electricity Act, 1910, as amended by Act 32 of 1959. It was also held that Sec. 3 of the Temporary Act of 193 authorised the State Government to make notified orders only, that is to say, the orders passed under that provision were ??? be published in the official Gazette. The various orders impugned by the respondent company were not notified orders. On the ground, they were unenforceable. The learned Judge further held that the State Government took into consideration the report of the Electrical Inspector; an since that report was not made available to the respondent company so as to enable it to meet it, the principles, of nature justice were violated, and the impugned orders were void for that reason as well. On these findings, the writ petition ??? allowed and the state was directed not ??? take any action on the basis of Sec. 3 ??? the Temporary Act of 1947. Aggrieve the State has appealed.

    14. Article 254 of the Constitution provides for inconsistency between law made by Parliament and laws made by the Legislatures of the States. Sub-Article (2) is relevant for our purpose. ??? reads:—

    “(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent lis contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect ??? that matter, then, the law so made by the Legislature of the State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State.

    Provided that nothing in this clause shall prevent Parliament from enacting a any time any law with respect to the same matter, including a law adding to amending, varying or repealing the laws so made by the Legislature of the State.”

    15. Entry 38 of the List 3 of the 7th Schedule ??? the constitution provides for ‘electricity’, electricity thus is a subject enumerated in ??? concurrent list. The Temporary Powers Act of 1947 was a law made by the legislature of a State with respect to such matter. This Act had been reserved or the consideration of the President and ??? received his assent. So, it will prevail a the State of U.P over an earlier law lade by Parliament or an existing law, notwithstanding anything repugnant between its provisions and those of the latter. The Central competing Acts are amending Acts Nos. 101 of 1956 and 32 of 1959. Exude, they are not earlier laws to the Temporary Act of 1947. The learned Advocate general, appearing for the appellant State, ??? to get over this difficulty by subletting that the operation of the Temporary Act of 1947 having been continued ??? several Acts of the State Legislature, ??? of which had received the assent of the President, as also by an act passed by he President (President Act No. 26 of 968), the effect in Law, was as if the Temporary Act of 1947 had been re-enacted by each of the continuing Acts. It is common ground that under Sec. 1(4) the Temporary Act of 1947 was to remain in force till 30-9-1948. Thereafter the expiry late was extended by several Acts till 956. The U.P Act No. 29 of 1956 continued the operation of the Act till 1958. The U.P Act No. 30 of 1958 continued ??? till 1963. The U.P Act No. 26 of 1963 extended the life of the Act till 1968. On 5th February, 1968, the President issued proclamation under Article 356 of the institution, declaring that there had been Constitutional breakdown in this State, parliament passed Act No. 7 of 1968 under Article 357(1)(a) of the Constitution, conferring on the President power to make ??? for this State, Accordingly, the President Act No. 26 of 1968 extended the ??? of the Temporary Act of 1947 till 1973. After the Constitutional machinery if this State was restored, the Legislature of this State passed the U.P Act No. 12 of 1970, likewise, extending the life of the 1947 Act till 1973.

    16. Each of these Acts amended sub-sec. (4) of Sec. 1 of the Temporary Act of 1947 by substituting the figure of the year by another year. For instance, the figure 1956 was substituted by 1958, 1958 by 1963, 1963 by 1968 and 1968 by 1973. On its case, these continuing Acts brought about an amendment in Sec. 1(4) of the Original Temporary Act only. They did nothing else. The effect of these Acts was that the Temporary Act of 1947 continued to remain in force without break over since 1947 till now.

    17. The question is if these various amending Acts were a re-enactment of the provisions of the Temporary Act of 1947, so that they could be recognised as a law made on the subject of electricity subsequent in point of time to the Parliament Acts Nos. 101 of 1956 and 32 of 1959. Since the vital question relates to the point of time when the State law with respect to a concurrent subject comes into force, these continuing Acts would fail to support the submission of the learned Advocate-General, unless they could be held to be a fresh law on electricity and that the re-enactment could be said to take effect on the day when the continuing acts were passed.

    18. A similar problem arose in United States v. Powers 1938 307 U.S.R 1245.. There, the connally Act of 1935 provided that it would cease to be in effect on 16th June, 1937, but it was extended prior to that date till 30th June, 1939. Doughlas, J., held:—

    “…….. Due to the amendment, the Act has never ceased to be in effect. No new law was created; no old one was repealed. Without hiatus of any kind, the original Act was given extended life.”

    19. This observation would suggest that such extending Acts do not make any law on the subject covered by the original Act. It will be difficult to call them as re-enacting-the subject-matter of the original Acts.

    20. Maxwell on Interpretation of Statutes, Edition XI page 392, states:—

    “If a temporary Act be continued by a subsequent one, or an expired Act be revived by a later one, all infringements of the provisions contained in it are breaches of it rather than of the renewing or reviving statute.”

    21. Thus, the extending Act does not make any new legislation. Its effect is that the old law instead of expiring, continues in operation till the substituted date. Craies also notices such a situation, at page 408 of his Treatise on Statute Law (1971) VII Edition. He says that if a temporary Act is continued from time to time by subsequent Acts, it is even so continued, regarded as an Act passed in the session when it was first passed. In the The State Of Bombay… v. Heman Santlal Alreja…. A.I.R 1952 Bombay 16. Chagla, C.J (accepted the aforesaid statement of the law, made by Doughlas, J. and by Maxwell, as correct. The learned Chief Justice took the view that when the Provincial Legislature passed a temporary Act fixing its duration till a given date and then it passed another conditional legislation extending its duration to a further date, then the position is that the original Act contained within it the potentiality of being ??? extended. The extended operation of the original Act is the potential operation, seeds of which were sown in the original Act. In that case, the Bombay Act No. 33 of 1948 provided for requisition of property. It was originally to remain in force fill 51st March, 1950. By the amending Act No. 2 of 1950, its duration was extended upto 31st March, 1952. It was held that the Act of 1948 as extended by the Act of 1950 was an existing law, within meaning of Article 31(5)(a), and, so, even, if they contravened the provisions of Article 31(2) of the Constitution, they were saved by clause 5(a) thereof. The position was that the Legislature when it passed Act No. 2 of 1950 did not make any fresh law on the subject. In the eye of law, the extending act did not place any new legislation on the statute book. The original Act continued in operation.

    22. The various continuing Act had, in law, the effect of continuing in force the original Act of 1947 as it was. They were not fresh legislation on the subject of electricity. The Temporary Act of 1947 is still the only State Legislation on that subject; and from the point of view of Article 254(2), the position would be that the State Legislature made a ??? with respect to electricity in 1947. The Central Acts of 1956 and 1959 were not ??? earlier law within meaning of Article 254(2). In this view, the provisions of the 1947 Act which are repugnant to the provisions of the amending Acts of 195 and 1959, will not prevail in the state; of the contrary, they will be deemed implied ??? repealed.

    23. The learned Advocate-Genera in the alternative submitted that the ??? competing provisions do not overlap, but they operate in different situations. Sec. 3 of the Temporary Act of 1947 authorised the State Government to make notified orders for inter alia the availability of electricity at fair prices. Clause (aa) of sub-sec. (2) thereof specifically authorised the State Government to make an order for regulating the rates that may be charged for supplying electrical energy, and to fixing or relaxing maximum or minimum limits therefor. As mentioned earlier Sec. 57 and 57-A and 6th and 7th Schedule to the Electricity Supply Act, 1948, provided a code for, inter alia, the determination of fair prices for electricity. These provisions contemplate that if the licensee violates a provision of the said schedules, the State Government may constitute a ??? committee for the purpose of examining the charges imposed by a licensee upon its consumers. The committee is to ??? of a Judicial Officer not below the ??? of District Judge, an accountant and an engineer. The committee is to investigate the matter after hearing the various parties including the licensee. The committed makes a detailed report to the Government. If the Government agrees, it may by an order to fix the rates in accordance with the report. The licensee is obliged ??? comply with it. These provisions, therefore, operate on the same field of availability of electricity at fair prices specifically mentioned in clause (aa) of sub-sec. (2) of Sec. 3 of the Temporary Act of 1947. Both these provisions are competing on the same topics.

    24. The learned Advocate-General submitted that the Temporary Act of 1947 operated only in an emergency, whereas lie provisions of the supply Act did not extend to such a situation. To support submission, he invited our attention to the ??? of objects and reasons appended ??? the 1947 Act. In our view, it is not permissible to construe the otherwise plain language of Sec. 3 in the light of the state-lent of objects and reasons. Sec. 3 or any of the sub-clauses does not make the exercise of powers conferred by them dependent upon the existence of any kind of ???. So long as the Temporary Act is in operation, the State Government ??? free to pass notified orders to regulate ??? prices. It cannot hence be said that lie 1947 Act would operate only in an emergency.

    25. In the next place, Secs. 57 and 7-A of the supply Act did not exclude a situation of emergency of the kind, mentioned in the statement of objects and reams appended to the 1947 Act, from the ??? of its purview. These provisions ??? applicable in all situations and circumstances. Thereunder, a rating committee in be constituted whenever the State Government considers that a licensee has violated the provisions of the schedules, or ??? licensee requests for it, irrespective whether the situation is one of emergency ??? otherwise. In our opinion, repugnancy ??? the two competing sets of provisions cannot be avoided on such distinctive mature.

    26. The two legislations are, in our view, “in respect of the same matter” with ??? meaning of Article 254(2) of the Constitution. The two legislation provided a different approach and a different kind of solution to the problem of fixing fair rices. Even though they do not, strictly sneaking, collide with each other in the sense that one asks for something to be done, which the other may prohibit, yet they being in respect of the same matter, both cannot remain in operation (see State of Orissa v. M.S Tullock's Co. A.I.R 1964 S.C 1284.. One will have to fall, under Article 254(2) of the Constitution. Since the Parliament Act of 1956 was not an earlier law in relation to the Temporary Act of 1947, it will prevail, and the offending provisions of the 1947 Act will stand repealed. In view of the repugnancy, clause (aa) of Sec. 3(2) and the overlapping part of Sec. 3(1) of the Temporary Act of 1947 must be deemed repealed by implication. The various orders passed by the State Government under that provisions were without the authority of law.

    27. The learned Single Judge held that Sec. 3 of the Temporary Act of 1947 was repugnant to Sec. 22-B, as introduced in the Electricity Act, 1910, by the amending Act of 1959. We are doubtful that Sec. 22-B operates on the same field as clause (aa) of Sec. 3(2) of the 1947 Act. But, since, the appeals fail on our finding in relation to the 1956 Act, it is necessary to express a final opinion on this point.

    28. In these cases, this Court was invited to consider the validity of the aforesaid orders of the State Government, which were passed under clause (aa), alone; it is unnecessary to consider the wider question whether Sec. 3 of the Temporary Act of 1947 as a whole is void for repugnancy. We leave that question open.

    29. It was agreed between the learned counsel that except for the order of State Government dated 23rd September, 1961, all the remaining orders passed between 1965 to 1972 were not notified in the Gazette. Sec. 3 of the Temporary Act of 1947 authorised the State Government to pass notified orders only. These various orders, not having been notified, were in law inoperative. On this ground also, these orders were liable to be set aside.

    30. Since the appeals are liable to fail on our finding on the point of repugnancy, we deem it unnecessary to discuss the various other points considered or mentioned by the learned Single Judge.

    31. In the result, both the appeals fail and are dismissed with costs, subject to the reservation that the operative part of the learned Single Judge's judgment will relate to clause (aa) of Sec. 3(2) of the U.P Electricity (Temporary Powers of Control) Act, 1947, only, and Sec. 3(1) only in so far as it covers the field of clause (aa) aforesaid.

    Appeals dismissed.

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    State Of Uttar Pradesh v. Benaras Electric Light And Power Co. Ltd., And Others
    (Aug 8, 1972)