KERALA STATE ELECTRICITY BOARD THE STATE OF KERALA KERALA STATE ELECTRICITY BOARD THE STATE OF KERALA KERALA STATE ELECTRICITY BOARD THE STATE OF KERALA KERALA STATE ELECTRICITY BOARD KERALA STATE ELECTRICITY BOARD KERALA STATE ELECTRICITY BOARD KERALA S Vs. INDIAN ALUMINIUM CO LTD

JUDGEMENT

(1.) ):- The validity of the Kerala State Electricity Supply (Kerala State Electricity Board and Licensees Areas) Surcharge Order 1968 is in question in these appeals. That order was passed in exercise of the powers conferred by Sec. 3 of the Kerala Essential Articles Control (Temporary Powers) Act, 1961. It obliges the Board to collect surcharges for non-licensee consumers of electricity even though the Board may have entered into long term contracts with them with regard to the rate at which electricity is to be supplied to them. The Act is one to provide, in the interest of the general public for the control of the production, supply and distribution of, and trade and commerce in, certain articles. Section 2 (a) of the Act defines "essential article" as meaning any article (not being an essential commodity as defined in the Essential Commodities Act, 1955) which may be declared by the Government by notified order to be an essential article. Section 3 enables the Government, if of opinion that it is necessary or expedient so to do for maintaining or increasing the supplies of any essential article or for securing their equitable distribution and availability at fair prices, to make notified orders providing for:

(2.) The validity of the Act itself is not seriously questioned except in one respect which we shall deal with later; but it is contended that by the declaration of electricity as an essential article under the Act, the Act impinges upon various matters either in list I or List III of the Seventh Schedule to the Constitution. According to Mr. Gupte, who appeared for the respondent in Civil Appeal No. 2557 of 1969, the legislation is repugnant to the Electricity Act, 1910 and the Electricity (Supply) Act, 1948, in particular the latter, which falls within Entries 43 and 44 of List I. According to Mr. B. Sen, who appeared for the respondents in Civil Appeal No. 20 of 1970, the Act trenches upon the field occupied by the Electricity (Supply) Act, 1948 which falls partly under Entry 43 of List I and partly under Entry 38 of List III. According to Mr. G. B. Pai, who appeared for the 1st respondent in Civil Appeal No. 1733 of 1972, the 1948 Act falls within Entry 44 of List I and the Kerala Act impinges upon that field. On the contrary, the Solicitor General appearing on behalf of the Kerala State Electricity Board contends that the Kerala Act falls under Entries 26 and 27 of List II of the Seventh Schedule to the Constitution.

(3.) There is, in the arguments on behalf of the respondents, a certain amount of confusion. The question of repugnance arises only in case both the legislations fall within the same List III. There can, therefore, be no question of repugnance between the Electricity Act and the Electricity (Supply) Act on the one hand and the Kerala Act on the other, if the former fall in List I or List III and the latter in List II. If any legislation is enacted by a State Legislature in respect of a matter falling within List I that will be without jurisdiction and therefore void.