TaxTMI 
TaxTMI 
1977 (5) TMI 90
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....sumer will have to bear the cost of its replacement. If, however, there are more than one consumer then cost will be shared in proportion to the H.P. contracted by each." The fresh condition was added to the agreement, because Condition No. 10 (1) of the Agreement stipulates that the consumer shall "abide by the Electricity Board conditions of supply now in force and by any subsequent modification or alteration thereto, as if the same had been incorporated in this Agreement." 2. The consumer has an agricultural farm on the Lucknow-Barabanki Road, she has a tube well on the farm; she requisitioned the supply of electric energy to enable her to run the tube-well and upon her entering into the agreement on 30-8-1968 her premises were connected with the main. The electric motor of the tube-well stopped working in the first week of October and upon enquiry she was told that the transformer situate at a distance from her tube-well had been stolen. When she presented an application to replace the stolen transformer, the Board insisted her to bear the replacement cost and hence the writ petition. The Board contended that the consumer having agreed to abide by the subsequ....
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....act. We would do no better than quote the following from the opinion of Chief Justice Taney in the well-known case of The Bank of Augusta v. Earle (U. S. Supreme Court reports (1842) 10 Law Ed 519 at p. 586:-- "In the case of Head and Amory v. The Providence Insurance Co. (1808) 2 Cranch 127, Chief Justice Marshall, in delivering the opinion of the Court, said, without ascribing to this body which in its corporate capacity is the mere creature of the Act to which it owes its existence, all the qualities and disabilities annexed by the common law to ancient institution of this sort, it may correctly be said to be precisely what the incorporating Act has made it -- to derive all its powers from that Act, and to be capable of exerting its faculties only in the manner which that Act authorises. To this source of its being, then, we must recur to ascertain its powers, and to determine whether it can complete a contract by such communications as are in this record." In the case of Dartmouth College v. Woodward (1810) 4 Wheat 629 , the same principle was again decided by the Court. "A corporation, said the court, is an artificial being, invisible, intangible and exis....
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....y through those mains or any of them has commenced) a requisition is made by the owner or occupier of any premises situate within (the area of supply) requiring the licensee to supply energy for such premises, the licensee shall, within one month from the making of the requisition (or within such longer period as the Electrical Inspector may allow) supply, and save in so far as he is prevented from doing so by cyclones, floods, storms or other occurrences beyond his control, continue to supply energy in accordance with the requisition: Provided, first, that the licensee shall not be bound to comply with any such requisition unless and until the person making it- (a) within fourteen days after the ser-vice on him fey the licensee of a notice in writing in this behalf, tenders to the licensee a written contract in a form approved by the (State Govt) duly executed and with sufficient security, binding himself to take a supply of energy for not less than two years to such amount as will (assure to the licensee at the current rates charged by him, on annual revenue not exceeding fifteen per centum of the cost of the service line required to comply with the requisition) and (b) if ....
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....t is not, the claim of the Board that the consumer should bear its replacement cost is, in our opinion, negatived by Sub-clause (2) which provides that the "Service Line" laid for the purposes of supply in pursuance of a requisition under Sub-clause (1), shall be maintained by the licensee. The transformer is the part of the main "transmission line" as defined by Section 2(7) of the Act. The Electricity Supply Act, 1948 draws a distinction between "Main transmission line" and "Service Line", It is only the cost of the "Service Line" which the prospective consumer has to bear, before the Board complied with his requisition for supply of electricity. Analysed in that manner, we should hold that the transformer is not the part of "Service Line" and that the Board having once commenced the supply it has to maintain the "Service Line". Neither does 1910 Act nor the Electricity (Supply) Act, 1948 authorise the Board in our opinion to demand the replacement cost of the transformer. This being so, if a condition as that were added by the Board to the Conditions of Supply, comprising the agreement between it and the Board....
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....sumer having agreed to its incorporation in the agreement by Condition No. 10 (1) of the Agreement, even if it were something beyond the conditions prescribed by Clause VI of the Schedule, the Court should refuse to nullify the bargain at the instance of the consumer. In support of this contention our attention has been invited to Lachoo Mal v. Radhey Shyam and in particular to Paragraph 248 in Halsbury's Laws of England. Volume 8, Third Edition, where at page 143 it is stated: "As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said can contract himself out of the Act, unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public policy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the legislature has expressly provided that any such agreement shall be void." 12. The case at hand falls, in our opinion, within the category of cases where the enforcement of such a condition would amount to disobedience of law. As already discussed in the for....