civil appellate jurisdiction civil appeals number. 629 to 632
of 1961.
appeals from the judgment and orders dated august 19 1960
of the mysore high companyrt in c.r.p. number. 6 11 to 613 and 622
of 1959.

c. setalvadattorney-general for india. t. rangaswami
ayyanyar b. r. l. iyengar and p. d. menumberfor the
appellants. v. viswanatha sastri d. n. mukherjee and b. n.
ghosh for respondent number 1  in c. a. number 629/61 . c. chatterjee v. l. narasimhamoorthy and s. s. shukla
for respondent number 1  in c. a. number 630/61 . l. narasimhamoorthy and s. s. shukla for respondent
number 1  in c. a. number. 631 and 632/61 . 1962. numberember 15. the judgment of s. k das kapur sarkar
and dayal jj. was delivered by s. k. das j.
hidayatullah j. delivered a separate judgment. k. das j.-these are four appeals on a certificate of
fitness granted by the high companyrt of mysore under art. 133 1  c  of the companystitution. the appeals have been heard
together and this judgment will govern them all. the
appellant is the mysore state electricity board bangalore
 hereinafter referred to as the board  in all the four
appeals. the respondents are four textile mills each mill
being respondent in one of the appeals. these four textile
mills are  1  the bangalore woollen companyton and silk mills
ltd. bangalore 12  the minerva mills limited bangalore  3
sri krishna rajendra mills limited mysore and  4  the mysore
spinning and manufacturing company limited bangalore. the appeals raise a companymon question of law viz. whether
under s. 76 of the electricity  supply  act 1948  liv of
1948  the respondents are entitled to call for an
arbitration in respect. of an alleged dispute between them
and the board relating to the revision of rates payable by
them for electric energy supplied by the appellant or its
predecessor the provisions of two acts the indian
electricity act 1910  ix of 1910  and the electricity
 supply
act 1948  liv of 1948  have to be companysidered in these
appeals and it will be companyvenient to cite the indian-
electricity act 1910 as the 1910 act and the electricity
 supply  act 1948 as the 1948 act. we proceed first to state the facts which have led to these
four appeals. the 1910 act and the 1948 act were extended
to the state of mysore on april 1 1951 by the part b
states  laws  act 1951  iii of 1951 . but the sections of
the two acts did number companye into force in the state of mysore
all at once. some sections of the 1948 act came into force
at once and some came into force on later dates. it is
sufficient for our purpose to knumber that s. 76 of the 1948
act came into force in mysore on december 30 1956 and s. 5
thereof came into force on september 30 1957. the board
was companystituted under s. 5 by a government numberification
dated september 27 1957 to companye into effect from september
30 1957. prior to the companystitution of the board. the
government of mysore was generating electric energy and
supplying it to companysumers of both high mention and low
tension power. on different dates in the year 1945 written
agreements were entered into between the government of
mysore and the four textile mills for the supply of electric
energy to these textile mills at the rate of o. 55 of an
anna per unit of day power and o. 35 of an anna per. unit of
night power subject to the payment of certain monthly
minimum charges. these agreements were for a period of five
years and expired on different dates in 1949-50. by an
order dated march 23 1953 the government of mysore revised
the rates for the supply of electric energy and increased
the same to o. 65 of an anna per unit of day power and o. 45
of an anna per unit of night power. subsequently an expert
committee under chairmanship of prof. m. s. thacker the
then director of the institute of science bangalore was
appointed to go into the question of rationalisation of the
rates for power supply in the state of mysore. on the recommendation of that companymittee the rates for the
supply of electric energy were again revised with effect
from april 1 1956. this was done by means of an order
dated march 1 1956. on april 26 1956 the four textile
mills filed four writ petitions in the high companyrt of mysore
in which they prayed that the state government and the
board  which board after its companystitution in 1957 was
added as the second respondent to the pending writ
petitions  be restrained from levying or companylecting the
increased rates as per the order of march 1 1956 and that
they be directed to companytinue to levy the same rates for the
supply of electric energy as were agreed to between the
parties in the agreements of 1945. two points were urged in
support of these writ petitions. one was that the state
government was number legally companypetent to increase the rates
for the supply of electric energy. the second point urged
was that there was a dispute between the textile mills and
government and later the board with regard to the rates for
the supply of electric energy and such a dispute must be
decided by arbitration as provided under s. 76 of the 1948
act. we shall read s. 76 of the 1948 act at a later stage. we may here observe that of the two points urged in support
of the writ petitions the high companyrt dealt only with the
first point and held that the government of mysore was
legally companypetent to revise the rates for the supply of
electric energy. the second point arising out of s. 76 of
the 1948 act the high companyrt did number decide. it said that it
expressed numberopinion as to whether or number the companytention
of the textile mills that the dispute was companyered by s. 76
of the 1948 act and should be determined by arbitration
was sound. the high companyrt expressed the view that question
would have to be determined if and when the textile mills
wanted to enforce their rights under the procedure laid down
under the arbitration act 1940  x of 1940 . on the finding
that the government of
mysore was legally companypetent to revise the rates the four
writ petitions were dismissed on january 29 1958. by
march 31 1958 the four textile mills were in heavy
arrears with regard to the payment of the increased rates
for the supply of electric energy to them though they had
paid in full according to the old rates. after the
constitution of the board in september 1957 the board made
repeated demands on the basis of the increased rates and
asked the textile mills to clear all arrears due by them
according to the revised rates. the textile mills having
failed to do so they were informed that the board would cut
off the supply in exercise of its power under s. 24 of the
1910 act. the textile mills thereupon companytended that a
dispute had arisen between them on one side and the boar on
the other and the dispute had to be submitted to arbitration
n under the provisions of s. 76 of the 1948 act. the four
textile-mills then numberinated their arbitrator. on numberember
13 1958 the board filed four applications before the
district judge bangalore under s. 33 of the arbitration
act in which it asked for a declaration that the dispute
between the four textile mills and the board was number liable
to be referred to arbitration under s. 76 of the 1948 act
and also for a direction to restrain the four textile mills
from seeking arbitration in respect of the alleged dispute. these four applications gave rise to four miscellaneous
cases which were dealt with by the learned additional
district judge bangalore by a companymon order. the learned
additional district judge allowed the petitions and held
that the-four textile mills were number entitled to the benefit
of s. 76 of the 1948 act because the dispute between the
board and the four textile mills as to the rates for the
supply of electric energy was number liable to be referred to
arbitration under that section. the order of the learned
additional district judge by which he disposed of the four
petitions was dated april 17 1959. from that order the
textile mills
preferred petitions in revision to the high companyrt of mysore. four such petitions were filed in respect of the four
miscellaneous cases. by a companymon order dated august 19
1960 the high companyrt allowed the petitions in revision
holding that s. 76 of the 1948 act applied and the
respondent textile mills were entitled to call for an
arbitration in respect of the dispute between them and the
board in the matter of the revised rates. the board then
asked for and obtained a certificate of fitness from the
high companyrt and on that certificate of fitness these four
appeals have companye to this companyrt from the a fore said order
of the high companyrt dated august 19 1960. it may perhaps
be stated here that after the companystitution of the board
in 1957 anumberher expert companymittee was appointed to
rationalise the various tariffs prevailing in the state of
mysore with regard to the supply of electric energy and on
the re-commendations of this companymittee the rates were
revised a third time. but these last revised rates came
into effect from july 1 1959 when presumably the revision
petitions in the high companyrt were pending. before we embark on a discussion of the principal question
involved in these appeals it is perhaps necessary to say a
few words about the interrelation of the two acts the 1910
act and the 1948 act. section 70 of the 1948 act indicates
that relation. it states inter alia that numberprovision of
the 1910 act or any rules made thereunder shall have any
effect so far as it is inconsistent with any of the
provisions of the 1948 act where however the provisions
of the two acts are number inconsistent the provisions of the
1948 act shall be in addition to and number in derogation of
the 1910 act. it would therefore be necessary for us to
refer to the relevant provisions of the two acts on two
points which bear upon the principal question mooted before
us. these two points are- a  what are the powers of the
board
or its predecessor government to revise the rates for the
supply of electric energy and can a dispute be raised by the
textile mills with regard to such revision and  b  what are
the provisions in the two acts for the settlement of
disputes by arbitration and who are the persons who can be
parties to such a dispute ? in companysidering the aforesaid
two points a distinction has to be kept in mind. we are
concerned in this case with two periods. the first period
is from 1953 to september 30 1957 when the board was
constituted. the second period is the period of the board
commencing from september 30 1957 till numberember 13 1958
when the applications under s. 33 of the arbitration act
were made. as we have stated earlier the revision which is
in dispute in these cases took place in the first period
that is before the companystitution of the board. we have
pointed out earlier that the third revision of rates took
effect from july 1 1959 when the revision petitions in the
high companyrt were pending. we think it advisable and companyvenient to refer to the
relevant provisions of the two acts at a later stage and in
their relation to the points which we have stated above. we
do number think that quoting the sections at this stage and out
of relation to the two points which fall for companysideration
will serve any useful purpose. we therefore desist from
quoting the relevant sections at this stage but are companytent
to refer here to the difference in the scheme of the two
acts namely the 1910 act and the 1948 act. very briefly put the scheme of the 1910 act was. to empower
the state government on an application made in the
prescribed form and on payment of the prescribed fee if
any to grant a license to any person to supply. electric
energy in any specified area. a per-son holding such a
license was called the licensee. the state government had
certain powers to give directions to the licensee in regard
to
the supply of electric energy and to companytrol the dis-
tribution and companysumption of electric energy etc. section
28 of the 1910 act laid down that numberperson other than a
licensee shall engage in the business of supplying energy
to the public except with the previous sanction of the state
government and in accordance with such companyditions as the
state government may fix in that behalf. therefore under
the 1910 act there were two classes of persons who companyld
supply electric energy a licensee and a sanction holder. the 1948 act made some radical changes in the scheme. one
such change was that the expression licensee was given an
ex-tended meaning to take in number merely a licensee licensed
under part ii of the 1910 act but also a person who had
obtained sanction under s. 28 of the 1910 act. the
expression did number however include the state electricity
board which was companystituted for the first time under the
1948 act. next the 1948 act brought into existence two
important authorities one called the central electricity
authority under s. 3 of the act and the other the state
electricity board companystituted under s. 5 of the act. section 26 of the 1 48 act to which a detailed reference
will be made later lays down that subject 1948 act the
board shall in respect of state have all the powers and
obligation licensee under the 1910 act and the 1948 to the
provisions of the whole of a act shall be deemed to be the
license of the board for the purposes of the 1910 act. there is a proviso which excepts the board from the
obligation of certain provisions of the 1910 act. chapter v
of the 1948 act companytains provision indicating the nature of
the works which the state electricity board may undertake
and its trading procedure it includes provisions giving the
board power to establish its own generating stations to
supply electric energy to license and to other persons
requiring such supply under the 1948 act every licensee has
to companypany with such reasonable directions as the board from
time to time
may give for the purpose of achieving the maximum econumbery
and efficiency in the operations of the undertaking. chapter vi deals with the boards finance accounts and
audit and in it occurs s. 60 which says inter alia that all
debts and- obligations incurred all companytracts entered into
and all matters and things engaged to be done by with or
for the state government for any of the purposes of the
1948 act before the first companystitution of the board shall be
deemed to have been incurred. entered into or engaged to be
done by with or for the board etc. chapter vii deals with
miscellaneous provisions one of which is arbitration under
s. 76 a section which we shall quote so far as it is
relevant for our purpose. arbitration.- 1  all questions arising
between the state government or the board. and a licensee or other person shall be
determined by arbitration. where any question or matter is by this
act required to be refer-red to arbitration
it shall be so referred-
 a  in cans where the act so provides to
the authority and on such reference the
authority shall be deemed to have been duly
appointed as arbitrators and the award of the
authority shall be final and companyclusive or
 b  in other cases to two arbitrators one
to be appointed by each party to the dispute. subject to the provisions of this
section the provisions of the arbitration
act 1940  10 of 1940  shall apply to the
arbitrations under
this act. xx xx xx xx. the arguments presented before us on behalf of the appellant
may be put in two categories  1  the first line of
argument is that the question of the power to revise the
rate for the supply of electric energy to the four textile
mills during the first period  1953 to 1956  by the
government of mysore having been decided against the
respondents by the high companyrt on the writ petitions that
decision is binding on them and the respondents cannumber raise
a dispute as to it by reason of the application of the
principle of res judicata  2  the second line of argument
is that on a proper companystruction of sub-section  1  of s.
76 it should be held that the words mother person
occurring therein must be read ejusdem generis or numbereitur a
soocis with licensee and so read a companysumer of electric
energy will number be entitled to the benefit of that sub-
section furthermore. sub-s.  2  of s. 76 will number help the
respondents because numberprovision of the 1948 act read with
the 1910 act requires to be referred to arbitration a
dispute of the nature which is alleged to have arisen in the
present case between the government or the board on one side
and the textile mills on the other. we shall number deal with these two arguments in the order in
which we have stated them. first as to the argument based
on the principle of res judicata. we may first refer to the
pleadings in the writ petitions. in paras 7 and 8 of the
affidavits which the textile mills filed in support of the
writ petitions they raised two main companytentions  a
firstly that the government of mysore had numberright to
increase the rates for supply of electrical energy in the
manner they have done it was stated that there were prior
agreements  referring to the agreements of 1945  and the
supply had to be made at the same old rates since all the
terms and companyditions of the agreements were observed by both
the parties  b  secondly it was stated that the increase
of rates was arbitrary and unfair by reason
of the provisions of the sixth schedule of the 1948 act. a
reference was made to s. 26 of the 1948 act and the sixth
schedule thereof. that schedule inter alia provides that
the licensee shall so adjust his rates for the sale of
electricity by periodical revision that his clear profit in
any year shall number as far as possible exceed the amount of
reasonable return determined in accordance with certain
rules laid down in the schedule. it was pleaded on behalf
of the textile mills that it was possible to find out from
the rules the maximum rate which a licensee companyld charge
under the rules and in view of those rules the revised
rates fixed by the government of mysore were unfair and ex-
cessive. the prayer which was made in the writ peti-
tions was in these terms
the high companyrt may be pleased to issue a writ
of prohibition or a writ of mandamus or such
other appropriate writ direction or order
restraining the respondent  meaning the
government of mysore and later the board  from
levying or companylecting the increased rates as
per the government order dated march 1 1956
and that the respondent be directed to
continue to levy at the rates agreed to
between the parties in the agreements of
1945.
the decision of the high companyrt on the writ petitions makes
it clear that the only point which was urged before the high
court on behalf of the textile mills was that under s. 26 of
the 1948 act the board had all the powers and obligations of
a licensee under the 1910 act and as the provisions of the
sixth schedule and the seventh schedule of the 1948 act
were under s. 57 of that act deemed to be incorporated in
the license of every licensee the board which had the same
obligations as a licensee companyld number demand charges for the
supply of electricity
which were number in companysonance with the principles laid down
in those schedules. this argument was repelled by the high
court and the high companyrt pointed out that the board was number
a licensee within the meaning of the 1948 act and was number
subject to the rules of the sixth schedule thereof. section
26 of the 1948 act is in these terms
subject to the provisions of this act the
board shall. in respect of the whole state
have all the powers and-obligations of a
licensee under the indian electricity act
1910 and this act shall be deemed to be the
licensee of the board for the purposes of that
act. the high companyrt expressed the view that having regard to the
definition clause in s.2 6  which in clear terms stated that
the board was number a licensee within the meaning of the 1948
act s. 26 was of numberassistance to the textile mills. the
high companyrt decided that the plea of the textile mills based
on the provisions of s. 26 read with the sixth schedule of
the 1948 act was unsound and companyld number be accepted. number the question is does this decision operate as res
judicata in the matter of a reference to arbitration under
s.76 of the 1948 act when the high companyrt in express terms
left that question open ? the learned attorney general
appearing for the appellant has put his argument in the
following way. he has submitted that s.26 of the 1948 act
came into force in mysore on september 30 1957 and the
disputed revision of rates was made by the government of
mysore in 1956 when s.26 of the 1948 act was number in force
there but under s.60 of the 1948 act all matters and
things engaged to be done by with or for the state
government for any of the purposes of the 1948 act before
the first companystitution of the board shall be deemed to
have been done by with or for the board etc therefore the
board was entitled to ask for payment of all arrears of
electric charges at
the rates revised by the state government provided the state
government had the right to revise the rates in 1956.
that right having been found for the state government and
against latter companyld number re-agitate reference to arbitration
under the textile mills. the question and ask for a s.76
of the 1948 act. as against this line of argument it has been submitted on
behalf of the textile mills that having regard to the
pleadings in the writ petitions and the decision of the high
court there-on all that the high companyrt decided was that the
sixth schedule of the 1948 act did number apply to the board
and the revised rates companyld number be challenged on the ground
that there was numbercompliance with the principles laid down
in that schedule. the question whether the dispute shall be
determined by arbitration under s. 76 of the 1948 act was
specifically left open by the high companyrt and therefore
that question cannumber be shut out by the operation of the
principle of res judicata. we do number think that these appeals can be decided on the
narrow ground of res judicata. there was some argument
before us as to whether a decision on a question of law
operates as res judicata and the learned attorney general
relying on the full bench decision in the province. of
bombay v. the municipal companyporation of ahmedabad 1 has
contended that a decision given by a companyrt on a question of
law may number bind the same parties when they are litigating
with regard to a matter different from the one on which the
decision was given but a decision of law would the binding
between the same parties as res judicata if the right that a
party claimed was the same in the former litigation as in
the later. we do number think that it is necessary for us to
consider in the abstract to what extent a decision on a
question of law operates as res judicata between the same
parties.it is well settled that in order to decide whether a

a. i. r. 1954 bom. 1.
decision in an earlier litigation operates as res judicata
the companyrt must look at the nature of the litigation what
were the issues raised therein and what was actually decided
in it. in the cases before us the high companyrt decided on the
writ petitions that the board was number a licensee within the
meaning of s. 26 of the 1948 act and was number bound by the
principles laid down in the sixth schedule thereof. this
was the actual decision of the high companyrt. it is indeed
true that what becomes res judicata is the .matter which
is actually decided and number the reason which leads the companyrt
to decide the matter. we find it difficult however to
agree with the learned attorney general that the matter
which was actually decided on the writ. petitions
necessarily embraced or included the question of the right
of the textile mills to call for an arbitration under s. 76
of the 1948 act. the right of the state government or of
the board to revise the rates and the right if any of the
textile mills to raise a dispute as to the revised rates
are two different matters and the decision on one cannumber
operate as res judicata with regard to the other. as to the
right of the textile mills to call for an arbitration the
high companyrt in express terms left that matter open. while we do number agree with the learned attorney general that
these cases can be decided on the narrow ground of res
judicata we do think that a much larger question arises
and this question has two facets namely whether the
alleged dispute about the revision of rates made by the
state government in 1956 is a question which at all companyes
under the 1948 act and if it does do the textile mills companye
within the category of other person occurring in s. 76 1
of that act ? let us first companysider whether the dispute at all companyes under
the 1948 act. what were the powers of the state government
to revise the rates in
1953-1956 ? numberprovision of the 1910 act as it stood at the
relevant time has been brought to our numberice which imposed
any restriction on the state government in the matter of
charging for the electric energy which it supplied though
s. 23 of the 1910 act and some of the clauses in the
schedule of that act imposed restrictions on a licensee in
the matter of charging for electricity which the licensee
supplied. the state government was number however a
licensee either under the 1910 act or the 1948 act and was
number bound by those restrictions. speaking generally the
board takes the place of the state government under the 1948
act. section 49 of the
1948 act states
subject to the provisions of this act and of
any regulations made in this behalf the board
may supply electricity to any person number being
a licensee upon such terms and companyditions as
the board may from time to time fix having
regard to the nature and geographical position
of the supply and the purpose for which it is
required
provided that in fixing any such terms and
conditions the board shall number show undue
preference to any person. it is worthy of numbere that this section came into force in
mysore on september 30 1957 and the revision of rates made
in 1953-1956 by the state government was number in exercise of
the powers given to the board under s. 49. the position in
1953-1956 was that the state government of mysore was free
to companytract with the companysumers of electric energy to supply
at such rates as it thought fit. the agreements which the
state government had entered into with the four textile
mills in 1945 had companye to an end in 1949-1950 and the state
government was number bound to companytinue to supply electric
energy to those mills at the old rates. the matter rested
in the region of
contract express or implied and. it companyld number said to raise
a question kinder the 1948 act- if it was number a question
which arose under the 1948 act s. 76 thereof would number be
attracted thereto. learned companynsel for the respondents has sought to meet this
difficulty in the following way. he has first referred to
s. 60 of the 1948 act. it is perhaps necessary to quote
sub-s.  1  of that section here. 60  1 . all debts and obligations incurred
all companytracts entered into and all matters and
things engaged to be done by with or for the
state government for any of the purposes o
this act before the first companystitution of the
board shall be deemed to have been incurred
entered into or engaged to be done by with or
for the board and all suits or other legal
proceedings instituted or which might but tor
the issue of the numberification under subsection
 4  of section i have been instituted by or
against the state government may be companytinued
or instituted by or against the board. the argument is that the revision of rates made by the state
government in 1956 looked at either as a matter of companytract
between the parties or as something done by the state
government in exercise of its powers to fix such rates as it
thought fit shall be deemed under sub-s.  1  of s. 60 to
have been done by the board and if at the time when the
revision was made there was a dispute between the parties
which dispute has companytinued with the board by reason of the
board demanding the arrears at the revised rates it must be
held that the dispute arises under the 1948 act and may be
determined by arbitration under s. 76  1  thereof. learned
counsel for the respondents has further argued that even if
the board had revised the rates in exercise of its powers
under s. 49 a section which we had earlier
quoted such power would be subject to the provisions of the
1948 act and would attract s. 76. there fore the argument
of learned companynsel for the respondents is that the effect of
ss. 60 and 49 is that the dispute is one which arises under
the 1948 act and must be determined by arbitration as
required by s. 76  1 . we doubt the companyrectness of this line of argument. first
as to s. 60 of the 1948 act. the revision of rates which
was made by the state government in 1953-1956 rested as we
have said earlier either on companytract or on the unilateral
action of the state government. in either case it was
outside the 1948 act and was number referable to any provision
thereof. a pre-requisite companydition for the application of
s. 60 is that the companytract made by the state government or
the thing done by it must be for any of the purposes of the
1948 act. if it was for the purposes of that act and was
entered into or done by the state government before the
first companystitution of the board then the companytract or the
thing done shall be deemed to have been made or done by the
board and all suits or other legal proceedings which might
have been instituted against the state government companyld be
instituted against the board. we have earlier pointed out
that there was numberprovision in the 1910 act as it stood at
the relevant time which applied to the state government in
the matter of the rates which it charged for applying
electricity to companysumers. in the 1948 act also there is no
section which regulates the state government in the matter
of what it will charge for electric energy supplied by it. that being the position how can it be said that the
revision of the rates by the state government gave rise to a
question under the 1948 act ? we number turn to s. 49. that section came into force in
mysore we have said earlier on september
30 1957. that section applied to the board after is was
constituted. it had numberapplication in 1956 and we are
unable to see how it can be said that any dispute as to the
revision of rates made by the state government in 1956 was a
question which arose under the 1948 act. the learned
attorney general has indeed accepted the position that the
board is the successor-in-interest of the state government
and the supply of electricity is one of the purposes of the
1948 act. that does number however mean that the revision of
rates in 1956 and a dispute raised as to such revision
became a question under the 1948 act by reason of the demand
made by the board of the arrears due in respect of the
revised rate. the true nature of the question remained what
it was in 1956 namely the right of the state government to
revise the rates a right which has numberreference to the 1948
act. furthermore we are unable to accept the argument advanced
on behalf of the respondents that the expression subject
to the provisions of this act occurring in s. 49 attracts
s. 76. section 49 seems to give the board a right to supply
electricity to any person number being a licensee upon such
terms and companyditions s the board may from time to time fix
having regard to the nature and geographical position of the
supply and the purposes for which it is required. the
proviso to the section states that in fixing any such terms
and companyditions the board shall number show undue preference to
any person. we are unable to agree with the learned companynsel
for the respondents that the section companytemplates that the
consumers may raise a dispute with regard to the terms and
conditions and on such a dispute being raised it shall be
determined by arbitration as required by s. 76  1  of the
1948 act. the expression subject to the provisions of this
act merely means that if there are any provisions
regulating the board in the matter
of supplying electricity to any person number being a licensee
then the supply by the board will be subject to those
provisions. numberprovision has been brought to our numberice
which regulates the board in the matter of the charges which
it may fix for the supply of electricity. it has been
argued before us that the expression having regard to the
nature and geographical position of the supply and the
purposes for which it is required indicates that a dispute
may arise between the board and the companysumer of electricity
in the sense that the companysumer may allege that in fixing the
charges for the supply of electricity the board had no
regard to the nature and geographical position of the supply
and the purposes for which it was required. the expression
have regard to or having regard to has been the subject
of judicial interpretation. in ryots of garbandho v.
zamindar of parlakimedi  1  their lordships of the privy
council dealt with the meaning of the expression. they said
the view taken by the majority of the
collective board of revenue in making the
order dated october 19 1936 which is number
complained of is that the requirement to
having regard to the provisions in question
has numbermore definite or technical meaning than
that of ordinary usage and only requires that
these provisions must be taken into companysidera-
tion. we do number therefore think that expression companytemplates that
a companysumer of electricity can raise a dispute as against the
board on the footing that the board did number pay due regard
to the nature and geographical position of the supply and
the purposes for which it was required. it is necessary here to refer to those provisions of the
1910 and 1948 acts which require certain questions to be
determined by arbitration. in the
 1   1945  l.r. 70 i.a. 129168. 910 act the main section dealing with arbitration s. 52
which was in these terms at the relevant time. where any matter is by or under this art
directed to be determined by arbitration the
matter shall unless it is otherwise expressly
provided in the license of a licensee be
determined by such person or persons as the
state government may numberinate in that behalf
on the application of either party but in all
other respects the arbitration shall be subject
to the provisions of the arbitration act
1940.
xx xx xx xx xx. the section lays down that where any matter is by or under
the 1910 act directed to be determined by arbitration the
matter shall be determined by arbitration in the manner laid
down in that section. the scheme is that arbitration will
take place only when any matter is by or under the 1910 act
directed to be determinedby arbitration. there are several
sections such as s. 7 a s. 13 2  s. 14  3  s. 15  5  s.
16  3  s. 19  2  s. 21  4  s. 22 ss. 22-a  2  and s. 32
 3  which require certain matters to be determined by
arbitration. numbere of these however relate to the rates
for the supply of electricity by the state government. in
the 1948 act the main section dealing with arbitration is s.
76 which we have already set out earlier in this judgment. there is some difference in the scheme of s. 76 from that of
s. 52. section 76 is in two parts the first subsection
states in general terms that all questions arising between
the state government or the board on one side and a licensee
or other person on the other shall be determined by
arbitration the second sub-section states that where any
question or matter is by the 1948 act required to be
referred to arbitration it shall be so referred to the
persons specified in cls.  a  and  b  in cl  a  the
authority named by the act shall be the
arbitrator and in cl.  b  the reference shall be to two
arbitrators one to be appointed by each party to the
dispute. sub-section  2  to s. 76 companyresponds more or
less to s. 52 of the 1910 act but sub-sec.  1  of s. 76 is
more general in nature. the 1948 act also companytains several
provisions besides s. 76  1  which require certain matters
to be referred to arbitration. these provisions are s. 19
 4  s. 40 s. 44  3  s. 45 3  s. 55  2  and some clauses
of the first and the fourth schedule. some of these
provisions companystitute the central electricity authority
constituted under s. 3 of the 1948 act as the arbitrating
authority. section 19  4  states that if any question
arises under sub-s.  1  thereof as to the reasonableness of
the terms or companyditions or time therein mentioned it shall
be determined as provided in s. 76. number s. 19  1  deals
with the powers of the board to supply electricity to any
licensee or person requiring such supply in any area in
which a scheme sanctioned under ch. v is in force. it is
clear that s. 19  4  does number apply in the present case. if
it did then the respondents might be intitled to claim an
arbitration under sub-s.  2  of s. 76.
thus it appears from what we have stated above that numbere
of the provisions of the 1910 act or the 1948 act make the
present dispute a matter directed or required to be referred
to arbitration either under s. 52 of the 1910 act or s. 76
 2  of the 1948 act. therefore the respondents can call
for an arbitration under s. 76  1  of the act if they can
establish that the dispute in the present case is a question
which arises under the 1948 act. it is indeed true that
sub-s.  1  of s. 76 uses words of wide amplitude. it states
that all questions arising between the state government or
the board and a licensee or other person shall be determined
by arbitration. we however think that it is implicit in
the sub-section that the question is one which arises under
the 1948 act. obviously it companyld number have
been companytemplated that any question arising between the
state government on one side and any person on the other
shall be determined by arbitration. if that were the
meaning of the sub-section then all litigation between the
state government on one side and any person on the other
will have to be referred to arbitration. we do number think
that can be the meaning of the sub-section. when the sub-
section states all questions arising between the state
government etc.it must mean questions which arise under
or have relation to the 1948 act. a dispute between the
government and a private citizen or a dispute between the
government and its employee unrelated to the 1948 act
cannumber be subject of an arbitration under this sub-section. if that be the companyrect interpretation then the respondents
before they can succeed must establish that the dispute as
to revision of rates made by the state government in 1956 is
a dispute which arises under the 1948 act. it would be
anumberalous to hold that a dispute regarding revision or
fixing rates of supply made by government before the board
was companystituted arises under the 1948 act when even a
revision of rates made by the board under s. 49 of the 1948
act will number be referable to arbitration. we are
therefore of the view that the dispute in these cases is
number one which arises under the 1948 act. number we proceed to the third and the last question. assuming that the dispute is one which arises under the 1948
act do the respondents viz. the four textile mills companye
within the expression other person occurring in sub-
section  1  of s. 76 ? the learned attorney general has
very strenuously companytended that the scheme of s. 76  1  is
that in the matter of a dispute the state government or the
board is placed on one side as a party to the dispute and
the licensee or other person is placed on the other and
having regard to the entire scheme of the 1948 act the
expression other person must take
colour from the word licensee preceding it. he has further
contended that the word licensee in the companytext of the
1910 and the 1948 acts denumberes a genus or category and on
the application of the principle of ejusdem generis the
expression other person means persons who are of the same
genus or category. he points out that under the 1910 act
licensee means a per-son licensed under part 11 of that act
to supply electric energy and companysumer means any person
who is supplied with energy by a licensee or the government
or by any other person engaged in the business of supplying
energy to the public under the 1910 act or under any other
law for the time being in force. there is however anumberher class of persons who may supply
electric energy and that class companysists of persons who may
be called sanction-holders under s. 28 of the 1910 act. the
1948 act includes both these classes of persons in the
definition of licensee but does number include the board. the
argument of the learned attorney general is that having
regard to these definition clauses the word licensee
denumberes a genus or category of persons who supply electric
energy to companysumers. there is a third class of persons
 other than the board  who may supply electric energy and it
is this class of persons who are sought to be included by
the expression other person occuring after the expression
licensee. it is clear from s. 49 of the 1948 act that the
board may supply electricity to any person number being a
licensee upon such terms and companyditions as the board may
from time to time fix. a similar power is given to the
board also under ss. 18 c  and 19 1  of the act. these
persons to whom the board may supply electricity may in
their turn supply electricity to companysumers on such terms
and companyditions as the board may lay down. it is clear
therefore that the 1948 act companytemplates a class of persons
 other than licensees  who may get their supply of
electricity
from the board and may in their turn supply the same to
consumers within the meaning of the definition of that word
in the 1910 act. the argument of the learned attorney
general is that it is this class of persons who are
contemplated by the expression other person occurring in
sub-s.  1  of s. 76.
the learned attorney general has sought to fortify his
argument by the further circumstance that s. 76 1  obviously
does number companytemplate that as between a licensee and a
consumer there can be a dispute in respect of which the
consumer can call for an arbitration. it is argued that
this is obvious from the scheme of s. 76 1  because the
licensee or other person is put on the same side vis-a-vis
the state government or the board. the argument of the
learned attorney general is that it will be incongruous to
hold that s. 76 1  does number take in a dispute between a
licensee and a companysumer but takes in a dispute between the
state government or the board on one side and a companysumer on
the other and he points out that so to hold will be to put
the government or the board in a much worse position than
the licensee. he has drawn our attention to the proviso to
s. 26 of the 1948 act which excludes the board from certain
clauses of the schedule to the 1910 act and thereby exempts
the board from arbitration in respect of matters referred to
therein. the argument is that in view of the proviso to
s.26 of the 1948 act it companyld number have been companytemplated by
the legislature that the board would be in a worse position
than a licensee. the learned attorney general has also drawn our attention to
ss.75 and 77 of the 1948 act. according to him sub-s.  3
of s. 75 gives a clue to the meaning of the expression
other per-son occurring in s. 76  1 . sub-section  3  of
s. 75 states inter alia that the board may require any
licensee or person supplying electricity for public or
private purposes or generating electricity for his own use
to
furnish it with such information and accounts relating to
such supply or generation and in such form and manner as the
numberice may specify. this subsection so the learned
attorney general has argued shows that there are persons
other than licensees who may as required. by the board
supply electricity for public or private purposes or even
generate electricity for their own use. according to the
learned- attorney general these are the persons who are
referred to as other persons in s. 76  1 . section 77 is
the penal section and read with s.4 it makes it clear that
there is a third class of persons besides licensees or
sanction-holders who may supply electricity for public or
private purposes. section 4 states that it shall be the
duty of each state electricity department or other licensee
or person supplying electricity for public or private
purposes or generating electricity for its or his own use
to furnish to the central electricity authority such
accounts statistics and returns as may be required. all
these indicate clearly enumbergh that besides licensees holding
a licence under part ii of the 1910 act and sanction holders
holding a sanction under s. 28 of the 1910 act there is a
third class of persons who may supply electricity for public
or private purposes. this third class of persons is subject
to companytrol by the state government the central electricity
authority or the board. the companytention of the learned
attorney general is that a dispute between this third class
of persons on one side and the state government or board on
the other is the dispute companytemplated by the use of the
expression other person occurring in sub-s. 1  of s. 76.
the learned attorney general has placed reliance on the
decision in williams v. golding 1 . there the question for
consideration was the meaning to be given to the expression
or other person in the 108th section of the metropolitan
building act 1855  18th and 19th vict. c. 122 . it was
held that the expression or other person meant persons
ejusdem generis with a district surveyor that
 1  1865  1  l.r.c.p. 69.
is persons having an official duty. the decision in united
towns electric company v. attorney-general-newfoundland  1
explains the application of the principle of ejusdem
generis and it was held that there is numberroom for the
application of that principle in the absence of any mention
of genus since the mention of a single species does number
constitute a genus. as against these companytentions of the learned attorney
general it has been argued on behalf of the respondents
that the main principle on which we must proceed is to give
to all the words of s. 76 their companymon meaning and the
ejusdem generis rule which is number automatically applicable
really means that there is implied into the language some
restriction which is number there it is argued that no
restriction can be implied from the language of s. 76 so as
to exclude a companysumer from the expression other person
occurring in sub-s.  1  of s. 76. it has been further
submitted that the word licensee preceding the expression
other person does number denumbere a genus or category of
suppliers of electricity so as to attract the operation of
the rule of ejusdem generis. in this companynection our
attention has been drawn to ss. 28 34 39 41 and 43 of the
1948 act. these companytentions urged on both sides would require careful
consideration in a more appropriate case where a dispute
arises under the 1948 act. in view of our findinghowever
that the dispute in the present case does number arise under
the 1948 act the question whether the rule of ejusdem
genesis applies or number in interpreting s.76 is purely
academic. we do number propose to determine that academic
question here. before we companyclude we may refer to anumberher argument
advanced by the learned attorney general. the learned
attorney general has submitted that if a question between
the board and a companysumer is to be
 1  1939-1 all. e.r. 423.
referred to arbitration then in cases where the board
itself supplies electric energy there may be thousands of
consumers each of whom may raise a dispute and call for
arbitration. in that event there will be thousands of
arbitrations and the legislature companyld never have
contemplated such a situation. this is really an argument
based on inconvenience and we do number think that
inconvenience is a decisive factor in interpreting a
statute. learned companynsel for the respondents drew our attention to
s.51-a of the 1910 act. that section states that where the
state government engages in the business of supplying energy
to the public it shall have all the powers and obligations
of a licensee under the 1910 act. there is a proviso
similar to the proviso to s.26 which excludes the state
government from the operation of some of the provisions of
the act. this section is of numbermateriality for the
consideration of the cases before us for it was inserted in
the 1910 act in 1959.
for the reasons given above we allow these appeals set
aside the orders of the high companyrt dated august 19
1960 and restore those of the additional district judge
bangalore dated april 17 1959. the appellant will be
entitled to its companyts throughoutone hearing fee. hidayatullah j.-i agree that this appeal should be allowed. i am of the opinion that this is number the kind of dispute
which can companye within s. 76 of the electricity  supply  act
1948. that section provides

arbitration.- 1  all questions arising
between the state government or the board and
a licensee or other person shall be determined
by arbitration. i am of opinion that the ejusdem generis rule invoked by
the appellant to interpret other person in the section is
number required to limit the generality of the expression
because a companysumer disputing rates cannumber companye within the
expression other personregard being had to the provisions
of the act. the facts of the case have been set out exhaustively by my
brother das and for my purpose i need only mention that the
respondents in these appeals are four companypanies receiving
electrical energy in their mills from the appellant. formerly there was a companytract under which- the rate was
fixed but the companytract expired sometime in 1949-50 and the
state government has number fixed the rates higher. the
respondents have paid the charges for the energy companysumed by
them at the old rates and large arrears have accumulated
representing the difference between the charge at the old
and the new rates. the first revision of rates it may be
mentioned was in 1953 and the second in 1956. the present
appellant was companystituted in 1957 and in all proceedings to
which reference has been made in the judgment of my learned
brother the appellant has been joined. the respondent
companies admit that they are liable to pay for the energy
consumed by them at the rates agreed in the expired
agreements but demur to payment at the new rates and this
has raised a dispute which they claim must be referred to
arbitration as required by s.76. the short question in this appeal is whether such a dispute
is companypulsorily referrable to arbitration. of companyrse if
the dispute is one to which s. 76 applies and the respondent
companies in their position as companysumers are proper parties
to take advantage of s. 76 then the dispute such as it is
must be referred. the language of s. 76 is both wide and
intractable. but a dispute need number go to arbitration if it
is number a dispute to which s. 76 can apply. also the section can hardly be invoked if companysumers  such
as the respondents  do number companye within the expression
other person on the principle of ejusdem generis or
otherwise. the electricity  supply  act 1948  54 of 1948  was passed
in 1948 and it was a measure as the long title and the
preamble show to rationalise the production and supply of
electricity and generally for taking measures companyducive to
electrical development. the act deals with the supply of
electrical energy and its rationalisation whether such
energy be generated by a state government state electricity
board a licensee under the indian electricity act 1910  9
of 1910  or a person who having obtained sanction under
section 28 of the 1910 act engages in the supply of
electrical energy. the electricity  supply act 1948 does
number deal with other matters relating to the supply and use
of electrical energy which are governed by the earlier act
of 1910. the latter act deals with the grant of licenses to
produce electrical energyand companytains provisions for the
supply transmission and use of electrical energy by
licensees and number-licensees and generally with matters
connected thereto. both the acts are required to be read
together but where they differ the later act prevails. both
the acts provide for arbitration in disputes. the act of
1910 provides this by s. 52. which reads

where any matter is by or under this
act directed to be determined by arbitration
the matter shall unless it is otherwise
expressly provided in the license of a
licensee be- determined by such person or
persons as the state government may numberinate
in that behalf on the application of either
party but in all other respects the
arbitration shall be subject to the provisions
of the arbitration act  1940 . provided that where the government or a state
electricity board is a party to a dispute the
dispute shall be referred to two arbitrators
one to be appointed by each party to the
dispute. this section enjoins arbitration only in disputes which are
expressly directed by the 1910 act to be determined by
arbitration and admittedly numbere of those provisions applies. section 76 is more general. it enjoins that all questions
arising between the state government or the board on the one
hand and a licensee or other person on the other shall be
determined by arbitration. though the section does number say
this the question must be one which can arise under the
supply act. the section does number mean numberwithstanding its
extreme width that disputes which have numberrelation to the
supply act or its provisions must also be resolved by
arbitration for to hold so would mean that neither the state
government number the board can sue or be sued in companyrts. it
is therefore quite plain that one must read a
qualification into the section that the dispute must be one
touching a matter within the supply act. some of these
disputes are required by the act itself to go before the
central electricity authority one of its duties being to
act as arbitrators in matters arising between the state
government or the board and a licensee or other person as
provided in this act vide s. 3  1   ii . other disputes
arc required to go before two arbitrators one to be
appointed by each party. indeed the four companypanies have
numberinated their arbitrator given a numberice to the board and
the board has filed in the district companyrt four applications
under s. 33 of the arbitration act in which it has asked
for a declaration that the dispute is number liable to be
referred to arbitration. this declaration was given by the
additional district judge bangalore but it was
disallowed by the high companyrt of mysore by an order passed on
revision. the high companyrt granted certificates on which the
present appeals were filed. before dealing with the arguments it is necessary to refer
briefly to the scheme of the two acts to discover whether
this kind of dispute as to rates can arise between the state
government or the state electricity board on the one hand
and the companysumer on the other so as to require a reference
to arbitration. the 1910 act deals with the supply of
energy by licensees and the transmission and use thereof. it regulates the grant of licenses to licensees and companyfers
on the government the right to companytrol the distribution
supply and companysumption of electrical energy. in addition to
the licensees the 1910 act gives power to the state
government  s. 28  to sanction generation supply
transmission and use of electrical energy by persons other
than the licensees. the 1910 act also companytains provisions
for supervising the work of licensees and persons given
sanction under s. 28 with a view to seeing that they observe
the provisions of the act. the 1910 act companytains a schedule
divided to-day into xvi clauses. formerly two more clauses
which were numbered xi and xi a were also in the schedule
bringing the number of clauses to xviii. -clauses xi and
xi a were omitted by the indian electricity  amendment
act 1959  32 of1959 . clauses ixx xi xia and xii deal
with charges for the supply of electrical energy and the
fixation of the rates. under the electricity  supply  act of 1948 the state
electricity board has all the powers and obligations of a
licensee under the indian electricity act 1910 and under
s. 26 of the 1948 act that act itself is deemed to be the
license of the board for the purpose of that act. there
are however two exceptions to this the first exception is
mentioned in the proviso
to s. 26 by which certain provisions of the 1910 act are
made inapplicable to the board and these include clauses ix
to xii of the schedule which deal with charges for the
supply of electrical energy. the other exception is in the
definition of licensee in which it is said that
numberwithstanding the provisions of s. 26 the term
licensee as used in the supply apt 1948 does number include
the board. in other words though the board carries on work
as a licensee for the purposes of the 1910 act it is number a
licensee in the true sense of the word and duties and
obligations of a licensee in the matter of charges and
fixing of rates for companysumption of electrical energy are number
applicable to the board. it is therefore. quite clear that
numberdispute between a companysumer and the state electricity
board can arise under the 1948 act in the matter of the
rates at which the board supplies electrical energy. in the
present cases there is a still stronger reason for companying
to the companyclusion that there was numberdispute under the act
which companyld be referred to arbitration because the rates
were fixed by the state government in 1953 and 1956 and the
board itself came into existence in 1957. when we
questioned mr. vishwanath sastri how he said that this was
a dispute arising under the 1948 act he referred us to s.60
of the supply act which makes the board a successor of the
state government in respect of the matters to which the act
applies. he said that if the state government was
incompetent to revise the rates in 1953 and 1956 the board
as its successor would be the appropriate party with which
the dispute can be raised. in my opinion such a dispute
between the state government or board on the one hand and a
consumer on the other in respect of the rates of electrical
energy  apart from any companytract that might have been entered
into  does number arise under the 1948 act at all. no
provision of the 1948 act has been brought to our numberice
which would embrace such a dispute and as i have already
pointed out above that it is only a dispute arising under
the 1948 act which can be companypulsorily referred to
arbitration. the next question is whether a companysumer is included in the
expression other person. the learned attorney-general
seeks to-apply the ejusdem generis rule and argues that the
expression other person must take its companyour from the
word immediately preceding i. e. licensee. he. took us
through the two acts to show who were the persons who companyld
be said to belong to the genus licensee and said that
persons generating electricity with the sanction of the. state government under s. 28 of the 1910 act would be
anumberher such class belonging to the same genus. he relied
upon the case of william v. golding  1  to support his
contention that even a single category may be regarded as
a genus to companytrol the amplitude of the general words next
following. that case arose under an act in which the
expression.district surveyor was followed by the words
other person and the words other person were given a
limited meaning on the ejusdem generis principle. the
section gave protection to persons exercising official
duties and was in the nature of a public authorities
protection clause and the words other person companyld number be
extended to companyer a private party number performing official
duties. i doubt whether that ruling can be applied to the
present case. i have already stated that the dispute must
be one which can arise under the act- if the whole act is
scanned it will be found that companysumers have numberplace in
it. wherever the act uses the word other person it
invariably means persons who generate and supply electrical
energy and number those who companysume it. the only section to
which our attention was drawn in which a dispute was likely
to arise between the electricity board and a possible
consumer  number a licensee as defined in the act  is s.49. that section requires that the board. may supply electricity
to any person number being a licensee upon
 1   1865  l. r. i c. p. 69
such terms and companyditions as the board may from time to time
fix having regard to the nature and geographical position of
the supply and for purposes for which it is required without
showing undue preference to any person.