Statutory notice and surcharge validity turned on contractual scope, while no surcharge applied to water-pumping electricity.

A statutory notice under section 233 of the Ajmer Merwara Municipalities Regulation, 1925 was held unnecessary because the claim was for recovery of surcharge and not for an act or illegal omission by the Committee in its official capacity. The surcharge notification under the Bombay Electricity Surcharge Act, 1946, as extended to Ajmer Merwara, was treated as valid because sections 3 and 4 independently authorised surcharge and did not conflict with clause 12 of the Schedule to the Indian Electricity Act, 1910, which was only a pricing machinery provision. However, surcharge was not recoverable for electricity used under the contract for pumping water, as the contract was read as one for pumping water for fixed consideration rather than for supply of electricity.

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Issues: (i) Whether a notice under section 233 of the Ajmer Merwara Municipalities Regulation, 1925 was a condition precedent to the suit; (ii) whether the surcharge notification issued under the Bombay Electricity Surcharge Act, 1946 as extended to Ajmer Merwara was without authority or ultra vires clause 12 of the Schedule to the Indian Electricity Act, 1910; (iii) whether surcharge was recoverable in respect of electricity used for pumping water under the contract.

Issue (i): Whether a notice under section 233 of the Ajmer Merwara Municipalities Regulation, 1925 was a condition precedent to the suit.

Analysis: The statutory bar applies only where the suit is in respect of an act or illegal omission purportedly done by the Committee or its officers in their official capacity. The claim was not founded on any act done by the defendant or any illegal omission on its part, but on the plaintiff's asserted right to recover surcharge under the notification. Mere non-payment of money due does not, by itself, amount to an illegal omission within the meaning of the provision.

Conclusion: No prior notice under section 233 was necessary, and the suit was not barred on that ground.

Issue (ii): Whether the surcharge notification issued under the Bombay Electricity Surcharge Act, 1946 as extended to Ajmer Merwara was without authority or ultra vires clause 12 of the Schedule to the Indian Electricity Act, 1910.

Analysis: Sections 3 and 4 of the Bombay Electricity Surcharge Act, 1946 empowered the competent authority to fix and collect surcharge on charges for energy, including supplies under contracts for street lighting. The omission of certain words from section 6, as modified on extension, did not cut down the independent operation of sections 3 and 4. Clause 12 of the Schedule to the Indian Electricity Act, 1910 only provided a machinery for settling the price by agreement or arbitration and did not fix the price or prohibit a legislative surcharge. No conflict arose between the two enactments.

Conclusion: The notification was valid and not ultra vires clause 12 of the Schedule to the Indian Electricity Act, 1910.

Issue (iii): Whether surcharge was recoverable in respect of electricity used for pumping water under the contract.

Analysis: The relevant notification applied to surcharge on the supply of electricity for street lighting and not to the separate contractual obligation to pump water for a fixed consideration. Read as a whole, the contract was for pumping water, not for supply of electrical energy for that purpose.

Conclusion: No surcharge was recoverable in respect of pumping water.

Final Conclusion: The appellant succeeded on the objections relating to notice and validity of the surcharge notification, but failed on the claim for surcharge connected with pumping water; the matter was therefore sent back for determination of the remaining issues.

Ratio Decidendi: A statutory notice provision confined to suits in respect of acts or illegal omissions does not apply to a simple claim for recovery of money due, and a surcharge imposed under a provincial law is valid where it does not conflict with a central enactment that merely provides a machinery for settling price by agreement or arbitration.

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