D.N.Sinha, J. - (1.) The petitioner in this case is the Managing Director of the Assansol Electric Supply Co. Ltd. (hereinafter referred to as the 'said company'). The said company is a licensee' under Part II of the Indian Electricity Act, 1910 (Act IX of 1910). In 1932, a licence for supply of electrical energy was granted by the Government of Bengal under the Electricity Act, 1910 to one A. K. Bajpaie of Calcutta to supply electrical energy at Asansol. In of about the 7th July, 1936 the said A. K. Bajpaie transferred his business together with his leasehold interest to the said company. Thereafter, the licence granted to the said company was amended and the Asansol Municipality felt within the area of supply of the licence granted to the said company. The Asansol Municipality has been superseded under Section 553 of the Bengal. Municipal Act, 1932 and the respondent No. 1 Shri A. K. Das Gupta has been appointed as its Administrator. The Asansol Municipality entered into a contract with the Indian Iron and Steel Co. Ltd., for supply of electrical energy to the Municipal Water Pumping Station situated on the bank of the Damodar river, which is at some distance from the municipal area. The Indian Iron and Steel Co. Ltd., in February, 1960 intimated to the said Municipality of its inability to continue to supply power to the Municipal Water Works, after the 3rd December, 1960. The Municipality thereupon started nega-tiations with various parties including the Asansol Electric Supply Co. Ltd. for the supply of power and eventually approached the State of West Bengal which referred the matter to the State Electric Board constituted under the Electricity (Supply) Act, 1948 (Act No. 54 of 1948). As I have already stated, negotiations had in the meantime been going on between several parties and the Asansat Electric Supply Company quoted certain rates for the supply of power subject to various conditions, but these rates and the terms and conditions were not acceptable to the Municipality which asked for a modification of the same. There was never a concluded contract between the said company and the Asansol Municipality for supply of power to its pumping station. The Board contacted the Dishergarh Power Supply Co. Ltd., as to whether they would be able to supply power to the Water Pumping Station of the Asansol Municipality. The Dishergarh Power Supply Co. Ltd., intimated their inability to do so, as the Pumping Station was outside their area of supply. It stated, however, that it would be able to supply 200k.w. maximum demand, to the Board, from a point of supply from the Dishergarh Power Supply Co.'s existing Ohakeshwari Sub-Station, from where the, Board could supply electrical energy to the said Pumping Station. Thereupon, the Board intimated to the Municipality that the Board was agreeable to supply the necessary power by drawing a new high voltage line from the Dhakeshwari Sub-Station of the Dishergarh Power Supply Co. Ltd., to the site where the Pumping Station was situated on the banks of the Damodar river, if the Municipality was prepared to pay the cost thereof. The Municipality approached the State Government for financial assistance in the matter. On or about the 4th August, 1950 a scheme had been promulgated for improvement of the Asansol Water Supply. By notification dated 18th October, 1938 rules had boen promulgated for the preparation, publication and execution of projects for water supply, sewerage or drainage by municipal authorities. According to the said rules, the scheme has to be drawn up in a particular manner and has to be submitted for approval by Government. When the scheme is approved by Government, it is necessary under Rule 8 to publish the same in the Official Gazette, inviting objections from parties interested. After considering any objection or suggestion that may be received, the Government may either sanction or reject the scheme as published or amend it, after which it becomes final. After the final sanction, the final scheme is published and work can then be taken in hand. Under ft. 11, if at any time during the progress of the work, the municipal authority has reason to anticipate that the sanctioned detailed estimate would be exceeded by more than 10 per cent, or if it shall at any time appear to the municipal authority that the sanctioned detailed scheme will require 'Material alteration', the municipal authority shall forthwith submit to Government for sanction, a revised sciieme with revised estimates and plans and thereafter the work can be commenced after the sanction is received. It will appear, therefore, that in such a scheme, after the preliminary approval by Government, the scheme has to be published and objection invited and all objections preferred have to be considered before the scheme can be made finai. But once it is made final, if the estimate is exceeded by ton per cent or if there is any material alteration in the scheme then, further Government sanction is necessary and a revised scheme may have to be made in the later case, but there is no further provision for inviting public objection. In this case what happened was that a scheme (or improvement of the water supply etc. of the Asansol Municipality was drawn up in accordance with the rules, and there was public notification as required and the scheme was finalised. When the Municipality approached Government for financial assistance in order to construct the transmission line from the Dhakeswari Sub-Station, the Government decided to advance an amount of Rs, 88,300.00 required for that purpose, and to treat it as a part of the Asansol Water Supply Improvement Scheme. The Administrator was informed that as the excess of expenditure was within 10 per cent of the sanctioned estimate, no sanc-tion was necessary and there was no impediment in the execution of the additional work. Thereafter, the Govern-merit paid the money to the Board and the erection of the transmission lines was taken in- hand. When this application was originally made, the erection was nearly completed and now it has been futly completed and power is being supplied by the Board to the Municipal Pumping Station. The result has been that the Asansol Electric Supply Co. Ltd., has been foiled in its attempt to get the contract for supply of electricity to the Municipal Pumping Station, and has made this application. The prayer in the petition is for the issue of a rule on the respondents to snow cause why a writ or order or direction should not issue directing the respondents to consider the representations of the petitioner marked as annexures Q, R and R2 to the petition and on consideration thereof, to allot to the Asansol Electric Su'pply Co. Ltd., the power to supply electrical energy to the Asansol Municipal Water Pumping Station. The other reliefs seek to prevent the Board from supplying the electrical energy.
(2.) Mr. Dutt appearing on behalf of the petitioner has framed his argument thus : The first argument is thai the Board is not entitled to supply electrical energy to the Municipality, without first framing a scheme under Chapter V of the Electricity (Supply) Act, 1948. According to him, the Board can only supply electricity to a private party other than a licensee, after the framing of such a scheme, which can only be framed after giving requisite notice to persons interested, and hearing their objections. According to him, no such scheme has been framed and, therefore, the supply is illegal. The second point made is that the original scheme for the improvement of water supply relating to the Asansol Municipality having been finalised, this alteration of the scheme by sanctioning a further sum for drawing a transmission line, amounted to a "material alteration" and therefore further opportunity should have been given to the interested parties to object against this variation. This not having been done, the Government could not treat this demand as a part of the scheme, nor could the Municipality accept the same, or give effect to the variation. In other words, the Municipality cannot legally accept a supply of power from the Board.
(3.) Before I proceed to deal with these points, I must mention certain preliminary points which have been taken by the respondents to the maintainability of this application. The first preliminary point is that it is not the Asansol Electric Supply Co. Ltd. which has made this application but the cause-title shows that the applicant is the "Managing Director, Asansol Electric Supply Co. Ltd." It is argued that the Managing Director has no right to maintain this application. The second preliminary objection is that even assuming that the Asansol Electric Supply Co. Ltd., is to be considered as the applicant, it is a "Licensee" as defined in Section 2 (h) of the Indian Electricity Act, 1910. According to its licence, it can only supply electricity within its "area of supply mentioned tn its licence". It cart only supply electricity beyond its area of supply, after obtaining an authority in writing to that effect under Section 27 of the Indian Electricity Act. In this particular case, it had no such sanction or authority. In the absence of such authority, it has no legal right to supply electrical energy to the Asansol Municipal Water Pumping Station and, therefore, could not maintain a writ application which can only be maintained by a person having a legal right and in aid thereof. The third preliminary point taken is that in so far as the petitioner has prayed for preventing the execution of the work, namely, installation of the transmission line, the application has become infructuous because the transmission lines have been completely erected and electrical power was being supplied already.;