- (1.) This court, on 6/08/1968, decided a group of three appeals, entitled The Gujarat Electricity Board v. Shantilal R. Desai and two others. The court passed an order, disagreeing with the view of the High court of Gujarat, that the appeals be allowed and the orders passed by the high court set aside and the cases remanded to the High court for deciding the issues which were left open. The reason for sending back the case is set out in the first paragraph of the judgment. It is stated: "The only question that falls for decision in this appeal is whether on the basis of the notice issued by the Bombay State Electricity Board on 8/01/1959 under S. 7 of the Indian Electricity Act, 1910 to be hereinafter referred to as the Act, prior to its amendment in 1959, the appellant can compulsorily purchase from the respondent his concern the Bilymora Electric Power Supply Company. In his application to the High court under Article 226 of the Constitution, the respondent challenged the vires of S. 7 of the Act. But that contention remains to be examined. The High court has chosen to allow the petition solely on the ground that as the requirements of S. 7 have not been complied with, the appellant cannot compel the respondent to sell the undertaking. If we come to the conclusion that that conclusion 855 is unsustainable then the matter will have to go back to the High court for deciding the constitutionality of S. 7".
(2.) We may observe that this court did not accept the view expressed by the High court relating to the interpretation of S. 7 of the Indian electricity Act, 1910. When the matter went back to the High court, it transpired that in the petition filed by the present appellant, the question as to the vires of S. 7 was not expressly raised, but in the two other petitions (out of which the two other appeals arose and were decided by this court on 6/08/1968) , the question as to the vires of S. 7 of the Indian Electricity Act was expressly raised. On the view that the question was raised in all the three petitions cut of which the appeals arose and were decided by this court, this court had remanded the case for determination of the issues as to the vires of S. 7 and the other issues left undecided. That judgment of this court has become final. The High court was therefore not justified in refusing to try the issue as to the vires of section 7 of the Electricity Act in the petition filed by this appellant. The order passed by the High court must therefore be set aside.
(3.) It is necessary, however, to observe that at page 10 of the judgment of the High court, certain observations are printed which appear to us, presumably on account of error in transcribing, to be obscure. The observations read: "It is true that the first proviso to S. 7 provides that the value of the undertaking shall be deemed to be the market-value at the time of purchase and that would mean that on the expiry of the notice, the value would require to be fixed and for that purpose the value to be fixed by agreement or arbitration would be the value fixed on the basis of the value at the date of the expiry of the notice but nevertheless, the vesting takes place on the purchase being effected as provided in Ss. (1) which in terms provides that "the licensee shall sell the undertaking to the local authority on payment of the value of. . . . . ". Learned counsel appearing on behalf of the parties submit two different interpretation'. Mr. Patel, for the appellant, argues that in observing "the value would require to be fixed and for that purpose the value to be fixed by agreement of arbitration. . . "amounts to a decision which is contrary to the terms of S. 7. Mr. Daphtary, for the respondent seeks to controvert that argument. We do not think especially when we are sending back the case to the High court, we would be justified in attempting to interpret the true meaning of statement recorded by the High court in the passage set out earlier. The High court will proceed to determine the true effect of Ss. (1) of S. 7 proviso and the other issues which remain to be decided by the High court.;