B. J. DIVAN, G. T. NANAVATI - (1.) This appeal under Clause 15 of the Letters Patent has been filed against the judgment and order of our learned Brother S. H. Sheth J. in Special Civil Application No. 1181 of 1973. Our learned Brother dismissed the special civil application and discharged the Rule and the original Petitioner has filed this Letters Patent Appeal against the judgment and order of our learned Brother.
(2.) The facts leading to this litigation are that petitioner No. 1 has been working as an electrical contractor. He is the holder of a license in that behalf under the provisions of the Indian Electricity Rules 1956 and is duly qualified for carrying out electric installation work in Junagadh and surrounding areas. The second petitioner is the Secretary of Gujarat Vijali Contractors Mandal and he thus comes in on behalf of the association of electrical contractors working throughout the State of Gujarat. The Gujarat Electricity Board wanted to carry out electrification work of the staff quarters of the Board at Sardhar Virpur and Talaja. Tenders were invited and petitioner No. 1 submitted his tender. Respondent No. 2 also an electrical contractor though not qualified and licensed to carry on that work and three other persons also submitted their tenders. The tender of respondent No. 2 was accepted though he did not held a license to carry out the work of electrical contractor for installation work and the tender of petitioner No. 1 was rejected. The association of licensed electrical contractors has entered in the present dispute between the first petitioner and the Executive Engineer of the Gujarat Electricity Board who is the first respondent herein. The petition has been filed by the two petitioners against rejection of the tender of petitioner No. 1 and acceptance of the tender of respondent No. 2. The main question which is required to be considered is under rule 45 of the Indian Electricity Rules 1956 That rule provides as follows: Precautions to he adopted by consumers owners electrical contractors electrical workmen and suppliers (1) No electrical installation work including additions alterations repairs and adjustments to existing installations except such replacement of lamps fans fuses switches low voltage domestic appliances and fittings as in no way alters its capacity or character shall he carried out upon the premises of or on behalf of any consumer or owner for the purpose of supply to such consumer or owner except by an electrical contractor licensed in this behalf by the state Government and under the direct supervision of a person holding a certificate of competency issued or recognised by the State Government: Provided that in the case of works executed for or on behalf of the Central Government and in the case of installations in mines oil fields and railways the Central Government and in other cases the State Government may by notification in the Official Gazette exempt on such conditions as it may impose any such work described therein either generally or in the case of any specified class of consumers or owners from so much of this sub rule as requires such work to be carried out by an electrical contractor licensed by the State Government in this behalf. Under sub rule (2) suppliers are prohibited from connection electrical installations with the supply lines if the installation had not been carried out in accordance with sub rule (1). We are not concerned with sub rule (3) of rule 45. It is thus clear that so far as the suppliers are concerned rule 45 clause (2) requires the suppliers to see to it that electrical installations work at any premises is carried out by licensed electrical contractors that is contractors who are licensed by the State Government in this behalf. The electrical contractor must be licensed and the person who supervises the installation work must also be a holder of a certificate of competency issued or recognised by the State Government. Thus in order to prevent accidents and in order to see that safely is properly assured this rule has been made under the powers conferred on the State Government by sec. 37 of the Indian Electricity Act 1910 Rules have been made by the Central Electricity Board after following the procedure laid down by sec. 38 of the Act. The emphasis is on the words consumers or owners. Mr. Anand has emphasized and pressed before us that the Gujarat Electricity Board which is otherwise a supplier is for the purpose of quarters for its employees the owner of the premises and hence would fall within the provisions of sub rule (1) of rule 45. As against this contention it must be borne in mind that the question as to how tenders were invited for the electrical installations in the quarters has been pointed out in the affidavit-in-reply. The affidavit is by R. D. Mehta Executive Engineer (Construction) of the Gujarat Electricity Board being affidavit dated 18/09/1973 In paragraph 6 of the affidavit-in-reply it has been pointed out that in the Fourth Five Year plan two schemes were approved by the Government namely (1) Talaja 33 KV. Sub-station and lines and (2) Sardhar 33 KV Sub-station and lines. Over and above these two schemes the Gujarat Electricity Board also included a third scheme that is Virpur 33 KV Sub-station though it was not included in the plan formulated by Government. As the Gujarat Electricity Board had taken up the aforesaid three schemes a tender notice was issued in Jansatta as has been mentioned by the petitioner in Exhibit A and it was also mentioned in the tender notice that the tenders were invited from experienced contractors. It has been pointed out in paragraph 8 of the affidavit-in-reply that the Board had to carry out various activities in implementing the schemes framed by it. The Board employs qualified persons to mainly do the work of supervision and it is further stated that for the purpose of carrying out the works of the same tenders are invited and works are given on contract to various contractors. It is stated that all these works are supervised by the employees of the Gujarat Electricity Board who are qualified to supervise the same. In paragraph 9 it is stated: I say that the aforesaid three schemes included a sub-station consisting of control room yard office and quarters. I say that the main work of a sub-station is to receive high voltage electrical energy and transform it into low voltage electrical energy for transmission to villages. I say that similarly a control room controls such transmission lines. I say that in the yard transformers switches coil circuit brakes and other equipment are installed. I say that all these works require constant presence of the qualified employees and therefore their quarters are also constructed as a part of the same sub-station. I say that when the work of construction of a sub-station is going on it is done under the constant supervision of the employees of the Board. I say that as the Board does not employ a large number of persons for carrying out the installation work tenders are invited from the contractors. I say that every work which is being carried out by the contractors is done under the constant supervision of the qualified employees of the Board. In view of what has been stated in paragraphs 6 7 8 and 9 of the affidavit in reply it is clear that the Gujarat Electricity Board was putting up a complex for the sub station at each of the three centres namely Talaja Virpur and Sardhar. At each place there was a complex consisting of a sub station a control room a yard and quarters for the employees who would be required to keep constant attendance at the sub station. The quarters for the staff who are working at the sub station are part of the sub station complex and thus connected with the functioning of the Gujarat Electricity Board as supplier of electricity. It is undoubtedly the owner of the quarters but it is not as the owner that the quarters are put up. The quarters are put up as an integral part of the sub station which the Gujarat Electricity Board has to instal as part of its functioning as supplier. It is possible that in its capacity as employer the Gujarat Electricity Board may put up a housing colony or it may put up residential quarters by way of providing amenties to its employees or it may put up an office for its office staff. In such cases the office building or the housing colony will not be an integral part of the functioning of the Gujarat Electricity Board as supplier. Therefore the two functions of the Gujarat Electricity Board one as supplier and another as employer or the body running the administration which would require offices for its functioning have to be separated. If the construction work is put up by the Board as part of its functioning as supplier it would be putting it up not in its capacity as owner of the premises but as a supplier and the requirement of sub rule (1) of rule 45 only is in connection with owners or consumers not in connection with suppliers. The only requirement of sub rule (2) is that the supplier will not connect electrical installation which has been carried out in contravention of sub rule (1) with the works of the supplier. So far as the quarters which are an integral part of the sub station are concerned they are altogether different from the works which are referred to in sub rule(1) of rule 45 so far as owners or consumers are concerned. Gujarat Electricity Board is neither an owner nor a consumer so far as the quarters which are an integral part of the sub station are concerned. This distinction between the two functions of the Gujarat Electricity Board one as supplier and the other when it functions in any other capacity have to be borne in mind. So far as the capacity other than the capacity as supplier is concerned it will be the owner of the premises and would be bound by sub-rule (1) unless a special exemption as been granted by Government concerned functioning under the proviso to sub-rule (1) of rule 45.
(3.) In the instant case we find from the affidavit-in-reply that the quarters in question which were constructed at Talaja Sardhar Virpur were integral parts of the sub-stations which were being put up by the Gujarat Electricity Board at these three different centres. They were being put up in the capacity as suppliers and not in any other capacity and therefore looking to the wording of rule 45 sub-rule (1) the provisions of sub-rule (1) will not apply since the Board in that capacity is neither an owner nor a consumer.;