Madhya Pradesh High Court
Sagar Art Service, New Delhi vs Municipal Corporation, Gwalior And ... on 28 September, 1987
Equivalent citations: AIR1988MP46, AIR 1988 MADHYA PRADESH 46, (1988) 21 REPORTS 132, 1988 MCC 316, (1988) MPLJ 392
ORDER T.N. Singh, J.
1. Two appeals are filed by the same appellant against a common order passed by the trial Court in two suits instituted by the appellant. Both appeals are, therefore, heard together and are being disposed of by this common order.
2. In Misc. Appeal No. 78 of 1987, respondents 1 to 3 are Madhya Pradesh Electricity Board and its functionaries, while Nagar Palika Nigam, Gwalior is arrayed as respondent No. 4, because they figured as defendants in Civil Suit No. 39-A of 1982. In other appeal, namely, Misc. Appeal No. 77 of 1987 which related to Civil Suit No. 35-A of 1987, the defendants/respondents are twosome, namely, the Municipal Corporation, Gwalior and the Commissioner of the said Corporation. However, in both cases, the lis bears the same complexion inasmuch as by the common order, the trial Court has finally disposed of separate applications made in the two civil suits, one set for temporary injunction under Order 39, Rules 1 and 2, read with Section 151, C.P.C. and the other set being applications under Order 6, Rule 17, C.P.C. for amending the plaint as also the applications for temporary injunction. The plaintiff/appellant is aggrieved because both sets of his application have been rejected. The further fact also to be noted at this stage is that the plaintiff/appellant had obtained from the trial Court an order of ad interim temporary injunction on 28-5-1982 in the Civil Suit No. 39-A of 1982, instituted on 26-5-1982. After the injunction was finally vacated on 10-7-1985, on an appeal being taken to this Court, the life of the temporary injunction was revived by this Court on 12-7-1985 and it is still continuing despite the fact that; in between the litigation suffered the vicissitude of a remand and consequent rehearing of the matter by the trial Court, finally resulting in the impugned order now challenged in these two appeals.
3. A word or two may also be said even at the outset about the scope of the amendment prayed before getting lost into the labyrinth of rival contentions of law and fact of kaleidoscopic complexion. In the two suits, as originally framed, relief in each case was based by enforcing contractual right for five years for displaying advertisement boards on the electric poles within the jurisdiction of the Gwalior Municipal Corporation and the contractual obligation of the Municipal Corporation was sought to be enforced up to 19-2-1987. By the amendment, the end period is sought to be changed and extended up to 29-11-1990.
4. To complete the bird's eye view of the factual landscape of the source, origin, purpose and distinctive features of the litigation, few more words may also be added. To do so, it would be appropriate to quote the relevant portion of the crucial contract in question which is dated 1-3-1982 and is concluded between the plaintiff/appellant and the Gwalior Municipal Corporation, through its Commissioner, under his seal and signature:
[Matter in Hindi omitted--Ed]
5. Unfortunately, there is another bone of contention having a pervasive bearing on the rights of parties manifested in the circular letter dated 11-1-1982, addressed by the Under Secretary to Government of Madhya Pradesh, Local Government Department, to all Commissioners of Municipal Corporations of the State, the text of which deserves to be quoted in extenso :
[Matter in Hindi omitted--Ed. ]
6. Obviously, the first question to be decided is of validity of the order of the trial Court refusing to continue the temporary injunction granted to the plaintiff/appellant for displaying the advertisement boards in enforcement of the right envisaged under the contract aforequoted. For doing so, obviously again, first question to be decided is if the plaintiff/appellant has a prima facie case to go to trial because the trial Court held that he has no such case. True it is, the court below has further held that the balance of convenience is also not in favour of the plaintiff and that he shall not suffer irreparable injury if the injunction is refused as he can be compensated in terms of money for the breach of contract. Counsel for the appellant Shri Dubey and for the respondents Shri O. P. Sharma who has appeared for the Electricity Board and Shri M. G. Khedkar, appearing for the Gwalior Municipal Corporation, have advanced extensive and elaborate arguments on the main question mooted in the case, drawing my attention to the provisions, inter alia, of several enactments, such as the Madhya Pradesh Municipal Corporation Act, 1956, for short, 1956 Act, Indian Electricity Act, 1910, for short, the 1910 Act and the Electricity (Supply) Act, 1948, for short, the 1948 Act.
7. The plaintiff/appellant came to Court to seek permanent and temporary injunction with the grievance that after the Municipal Corporation had executed the agreement dated 1-3-1982, granting him the right of exhibiting advertisement boards on the electric poles, he was obstructed from doing so by the M. P. Electricity Board and its officers when they suddenly, on 9-5-1982, started throwing away and taking away the boards fixed by him. Although the plaintiff approached the Municipal Corporation and its officers, they did not help the plaintiff to resist the activity of the Board and its officers. The subsequent event which is stated in the memorandum of appeal in Misc. Appeal No. 77 of 1987 is that the Municipal Corporation published a notice dated 17-2-1987 in local newspapers inviting tenders for giving rights for exhibiting advertisement boards on electric poles within the limits of the Corporation's jurisdiction.
8. The contention of Shri Dubey is that the plaintiff/appellant was entitled to enjoy freely, uninhibitedly, without let and hindrance from any source, the right to display the advertisement boards in terms of the agreement aforesaid, for a period of five years and that because he could not enjoy the said right for the said period, as a result of obstructions and the limited scope of the temporary injunction, his right to enjoy the right till 29-11-1990 has to be ensured by the Court by issuing a temporary as also permanent injunction. Counsel has submitted that the M. P. Electricity Board or for that matter, State Government have no authority of law to deprive the appellant of the right of the fruits of the agreement aforesaid. He has further submitted that the said agreement is legally binding not only against the Corporation, but also against the Board and the State Government and each one of them is bound is law to allow the appellant to enjoy the fruits of the agreement fully for the full period of five years ending on 29-11-1990.
9. I proceed now to deal with the provisions of 1956 Act on which counsel has relied. Section 5(56-A) of the 1956 Act defines the term "tax" -- "includes any toll, cess, fee or other impost levied or leviable under this Act". Power of municipal corporation to acquire and bold movable and immovable property is contemplated under Section 8 which provides, inter alia, that Corporation shall have power subject to the provisions of this Act and the rules and bye-laws made thereunder to transfer any property held by itself and to contract and do all other things necessary for the purpose of this Act." Section 80 deals with provision governing the disposal of municipal property or property vesting in or under the management of the Corporation. Relevant portions of Section 80 may be profitably extracted to appreciate rival contentions based thereon :
"80. Provisions governing the disposal of Municipal property or property vesting in or under the management of Corporation. (1) No streets, nazul lands, public places, drains or irrigation channels shall be sold, leased or otherwise alienated, save in accordance with such bye-laws as may be made in this behalf.
(2) Subject to the provisions of Sub-section (1) --
** ** **
(c) with the sanction of the Corporation the Commissioner may lease, sell or otherwise convey any immovable property belonging to the Corporation.
(3) The Commissioner may --
** ** **
(c) with the sanction of the Corporation sell, let out on hire or otherwise convey any movable property belonging to the Corporation.
(5) The foregoing provisions of this section shall apply to every disposal of property belonging to the Corporation made under or for the purpose of this Act:
Provided that --
(i) no property vesting in the Corporation in trust shall be leased, sold or otherwise conveyed in a manner that is likely to prejudicially affect the purpose of the trust subject to which such property is held;
(ii) no land exceeding twenty-five thousand rupees in value shall be sold or otherwise conveyed without the previous sanction of the Government and every sale, or other conveyance of property vesting in the Corporation shall be deemed to be subject to the conditions and limitations imposed by this Act or by any other enactment for the time being in force."
It is also necessary to extract relevant portions of the other important provision cited by counsel, namely, Section 82 :
"82. Property vested in Corporation.
Subject to any special reservation made or to any special conditions imposed by the Government, all property of the nature hereinafter in this section specified and situated within the city, shall vest in and be under the control of the Corporation, and with all other property which has already vested, or may hereafter vest in the Corporation, shall be held and applied by it for the purposes of this Act, namely : --
** ** **
(e) all public lands, lamp-posts and apparatus connected therewith or appertaining thereto;"
10. Reliance is placed by learned counsel on Section 132(2)(1) to stress existence in Corporation of the power to levy "a tax on advertisements other than advertisements published in newspapers", submitting further that the source of this power has to be read in items Nos. 55 and 56 of List II of the Seventh Schedule of the Constitution of India. However, according to Sub-section (4), the imposition of tax under Section 80 "shall be subject to the provisions of the Act and of any other enactment for the time being in force", while under Sub-section (6), it is contemplated that the maximum and minimum limit with respect to amount or rate of tax or both may be specified by the State Government. According to Section 133, by resolution adopted at a special meeting, the Corporation may propose imposition of any tax contemplated under Section 132 defining the class of persons or description of property proposed to be taxed, the amount or rate of tax to be imposed and the system of assessment to be adopted. Power to frame bye-laws is vested in the Municipal Corporation under Section 427 for carrying out the provisions and intentions of the Act and the matters to be regulated by the bye-laws are enumerated therein. According to Sub-section (2) thereof, bye-laws are to be framed for the "regulation of the time and mode of collection of any tax which may be imposed under Section 132 or which is charged and levied under Section 135."
11. Reliance is also placed by Shri Dubey on the bye-laws of the Gwalior Municipal Corporation, published in Madhya Pradesh Rajpatra dated 12-1-1962, called Gwaiior Nagar Palik Nigam Advertisement and Exhibition Bye-laws, 1961, to trace the source of legal authority of the Corporation in executing in favour of the appellant the agreement in question. It is necessary, therefore, to extract verbatim in extenso, the relevant bye-laws wholly or in part, Nos. 3, 6, 7, 8 and 9 :
[Matter in Hindi omitted--Ed. ] (Items Nos. 2 and 3 -- separate rates for other sizes) Xx XX xX
12. However, the moot question for decision is whether the agreement in question can be said to be a legal and valid agreement for realisation really of "advertisement tax" contemplated under the provisions of the 1956 Act and the bye-laws. Incidentally also and whether there is any impact on the agreement of the provisions of the two aforesaid Acts of 1910 and 1948 and indeed in what manner, the last mentioned two enactments impinge on the rights of parties to the said agreement Indeed, Board's counsel Shri Sharma, who has challenged validity of the agreement has not challenged Corporation's statutory right to levy "advertisement tax". Shri Sharma endeavoured mainly to support Government Circular dated 11-1-1982 submitting that the "electric poles" being the property of the, Board, right to "negotiate" for putting up advertisements boards on them reserved under the said Circular letter rested statutorily in the Board. Therefore, the agreement being violative of the said letter, or even otherwise being infringement of Board's proprietary right in respect of electric poles must be deemed invalid. Corporation's counsel Shri Khedkar joined hands with the appellant's counsel Shri Dubey to press for validity of the agreement being upheld, but he has, at the same time, submitted that the term of the agreement having expired, the appellant has no case which may be tried.
13. Because vires of Government circular r letter, Shri Dubey seriously challenged and indeed for resolving the controversy, it would be necessary otherwise also to determine the question of ownership of electric poles, it will be appropriate to examine first that question. Although Sarvashri Dubey and Khedkar have both contended that the agreement was nothing, but "Anumati" contemplated under the bye-laws afore-quoted, and manifested merely levy of "advertisement tax" thereunder in terms of the bye-laws, I found myself unable to accpet their contention. True, Shri Sharma contended that the agreement can only be considered as lease of the electric poles by the Corporation in appellant's favour and the Corporation had no right to grant the lease without Board's consent as ownership of the electric poles vested in the Board, I have taken a different view of the matter. To that I shall advert soon and I may then examine the hotly debated question of ownership of electric poles. Before that, few words, I may still say to give my reasons for discarding the common contention of the Corporation and the appellant.
14. Indeed, I am not satisfied if the expression "Aam Raston Ke Khambe" which finds place in bye-law No. 3 afore-quoted, would include electric poles. However, looking at the scheme of the bye-laws in the context of Section 132(2)(i) of 1956 Act, I find also difficult to accept the proposition that "advertisement tax" can be levied and realised in the manner contemplated under the agreement in question.
15. Bye-law 6 has specified the rates of advertisement tax as it should be, because incidence of even such a "tax" as is contemplated under Section 5(56-a) of the said Act cannot be general and uncertain as respects property and person. In taking this view, I have accepted Shri Dubey's contention that the term "tax" is so defined as to invest it with artificial meaning departing from the meaning generally attributed to the term tax at common parlance. In my view, the term "tax" defined in Section 5(56-a) has to be construed in its own term and there is no scope for being obsessed by the general consideration that the definition is an inclusive definition. True, the term "municipal tax" is defined separately in Sub-section (38) and refers explicitly only to "tax" levied by the Corporation under the Act, while Sub-section (56-a) speaks also of "toll, cess, fee", but it speaks also of "other imposts" qualified importantly by the expression "levied or leviable under this Act". Although it is contended that the advertisement tax leviable under Section 132(2)(1) would be nothing but tax in the sense of "impost" and that may be "fee" also, included in the definition in Section 5(56-a), the proposition has not appealed to me. If it is accepted that a non-compulsory exaction of the nature of "fee" is contemplated under Section 132(2)(1) which gives power to the Corporation to levy "advertisement tax", there may be some substance in the argument of Shri Dubey that the agreement is of such a nature as may be held conformable to the bye-laws and indeed, Section 132(2)(1) itself. In other words, a composite and cumulative levy of "fee" under the agreement without mention therein of the number of the sign boards and the total area covered by the sign boards in terms of bye-law 6(i) would be permissible and the agreement may be construed as "Anumati" contemplated under that bye-law. Notwithstanding the fallacy in the argument which is obvious that an "Anumati" cannot be an undertaking by the person in whose favour it is granted which the agreement in question really is, I would say that Section 132(2)(1) rather contemplates not "levy", but "impost", within the meaning of the term used in Section 5(56-a). Therefore, the agreement in question must be beyond the scope of Section 132(2)(1) as also the bye-laws.
16. To unravel the interpretation of Section 5(56-a), Shri Dubey relied mainly on Maxwell's and G. F. Singh's books on Interpretation of Statutes. However, I found it profitable to look also into Apex Court's decision in Jagdish Chandra, (AIR 1964 SC 1882) first. Being called upon to expose the meaning of the expression "claim of set off' in Section 69(3) of the Partnership Act, their Lordships considered the scope of two competitive rules of interpretation of ejusdem generis on the one hand and noscitur a sociis on the other hand. Neither need be followed compulsorily if the context so required, their Lordships held when "words showing clause are followed by general words". Indeed, the context would determine the claim to primacy of any particular expression. This rule, according to me, resolves squarely and satisfactorily the interpretative crisis in the instant case. Mention is made specifically of "toll", "cess" and "fee" in Section 5(56-a), these words are followed by the general expression "other imposts" and more importantly, the latter being also qualified by the expression "levied or leviable under this Act." The context, in my opinion, makes legislative intent clear requiring primacy to be attached to the words "other imposts".
17. There is discussion in G. P. Singh's book on the scope of the competing rules of noscitur a sociis and ejusdem generis at pages 322 and 326 of 3rd edition. In Maxwell's 12th edition at pp. 289 and 97 respectively, a similar discussion has to be read. In my opinion, however, reliance by learned counsel on the passages in Maxwell and G. P. Singh does resolve the controversy surfaced in the instant case to which due is provided rather by Jagdish Chandra (AIR 1964 SC 1882) (supra). The meaning of the term "imposts" may be read in Black's Law Dictionary which gives it a sense of a levy of a compulsory nature and indeed, Black speaks of imposts in terms of "taxes, duties or impositions levied for diverse reasons". I would, therefore, hold that the agreement is neither referable to the bye-laws to be considered as "Anumati" in terms thereof, nor it can be said that in terms of such an agreement, "advertisement tax" contemplated under Section 132(2)(1) can be levied or even realised or collected.
18. Indeed, it cannot be disputed that for levy or collection of "advertisement tax", no necessity would arise to invite tenders or to receive offers and make agreements. Happily, the bye-laws also do not postulate such an exercise and make it clear that for any particular advertisement, the advertiser and not any other person would obtain, on application made in that behalf, the required permission or "Anumati" and the "Anumati" would be granted on payment made in advance of tax payable in accordance with the tariff indicated in bye-law No. 6. Tax is payable at the monthly rate according to the size of advertisement and indeed advance payment has to be made for the period applied and allowed, but application, according to bye-law No. 7 can be made at any time during the year by any person and the manner for making application is also indicated in bye-law No. 8 requiring such applications to be made in the prescribed form B. The same bye-law also contemplates application for extension of permission (Anumati) to be submitted 15 days ahead of the expiry of the last permission. Clause (d) of bye-law 9 makes -clear the compulsory nature of exaction by contemplating that the advertiser would have no right to claim refund of tax paid even if the permission is revoked at any time by the Corporation for violation of the advertiser of any terms and conditions of the permission.
19. The question still would be whether the Corporation would have right to conclude an agreement of the nature involved in the instant case under any provision of the 1956 Act. According to Section 87(a) of the said Act, the Corporation has a power to receive money to be credited in its funds constituted thereunder which is due payable to it "under any contract" even if statutory entitlement in specific terms in regard to any such receipt may not be contemplated under the Act. However, the question would be whether such a contract must be otherwise valid and authorised under the said Act. According to Section 8, the Corporation is empowered to enter into "any contract" in respect of "any property held by itself as may manifest "transfer" of any right of the Corporation in such property. True, Section 8 speaks of "transfer" (of) any property held by itself by the Corporation, but the right to transfer any property would evidently include the right to transfer any right in any such property, not necessarily that the "transfer" must be of all rights in that property. If it can be found that the electric poles, with respect to which right to put up advertisement boards has been granted under the agreement in question to the appellant, are "property held" by the I Corporation, there would be no difficulty to take the further view that the Corporation would have the right to make such an agreement.
20. According to Section 82(e), the Corporation has the right to hold "lamp posts and apparatus connected therewith or appertaining thereto" in virtue of the same being vested in it and control over that being vested in the Corporation. Neither Section 8, nor Section 82 speaks explicitly of the right of ownership in the property "held" by a Corporation. However, Section 82 itself further contemplates that such property as vests thereunder in the Corporation and is held by the Corporation thereunder, shall be "applied by it for the purposes of the Act". The only sensible meaning to be attributed to this provision would, therefore, be that even if any property does not belong, or in other words, is not owned by the Corporation, if that property vests in the Corporation and is held by the Corporation under Section 82, then the Corporation would be deemed to hold that property merely in trust for application of the property for the purposes of the Act: For this construction, support may be found not only in the meaning of the word "held" used in Section 82 in its context, but also in Sections 76 and 77. If the ownership of any property is of any "public institution" as per Section 77(t), though such property shall vest in Corporation for the purpose of "management, control and administration" thereof, the property shall be held by the Corporation "in trust for the purpose to which such property, endowments and funds may be lawfully applied". According to Sub-section 80(5), proviso (i), afore-extracted, there is a prohibition therein that such property shall not be "conveyed in a manner that is likely to prejudicially affect the purpose of the trust subject to which such property is held". The question, therefore, would be of consideration whether in any manner, any right in such property as lamp posts is so "conveyed" that the purpose of the trust is thereby prejudicially affected in regards thereto.
21. At the Bar, counsel have cited authorities on the interpretation of the term "vests" which occurs in Sections 80 and 82. Although Shri Dubey has contended that "vests" would invariably imply vesting of ownership of the concerned property, I am not convinced if that is the correct proposition in law. One thing which is very clear is that when any property is held in trust, the owner of the property creating the trust may not necessarily divest himself of the title to the property unless statutory provision indicates the contrary intention. This is the view which the Apex Court has expressed in the case of The fruit and Vegetable Merchants Union's case AIR 1957 SC 344. In State of U.P. v. Ata Mohd., AIR 1980 SC 1785, construing the provisions of Section 116(g) of the U. P. Municipalities Act, their Lordships held that "street" vests in the Municipality qua street and the land under the street remains vested in the State, clearly meaning thereby that vesting of the street did not vest in the Municipality the title in it of the land under it. This Court in the case of Municipal Committee, Sidhi v. Jagdish Prasad Khare (1987) 2 MPWN 66 : (1987) 5 13 Rep 103 construing Section 100(1) of M. P. Municipalities Act, tqpk the view that the term "vests" was susceptible to several shades of interpretation of the nature of vesting of any interest or of possession and that the term was used in a limited sense in the provision considered. The connotation of the word "held" came up for the consideration of the Apex Court in Budhan Singh's case (1969) 2 SCC 481 : (AIR 1970 SC 1880) in the context of the provisions of U. P. Zamindari Abolition and Land Reforms Act. In that case, it was observed that the expression "held" may be used in various senses, but the core meaning of the expression stated in Webster's New 20th Century Dictionary was accepted to observe that in legal parlance, the word "held" meant to possess by legal title. It was also observed that usually when the expression "held" is used, it would deem to mean that the property is "lawfully held" as that would conform the dictionary meaning of the term.
22. Assuming for the time being that ownership of the "lamp posts and apparatus connected therewith or appertaining thereto" within the limits of Corporation's territorial jurisdiction does not vest in the Corporation, the entitlement of the Corporation to enter into any contract in relation thereto for the use of the said lamp posts etc., in my opinion, would ensue under Sections 8 and 87(1) of the 1956 Act subject to the limitation on the exercise of the right in respect thereto' as is contemplated under the first proviso to Section 80(5) of the said Act. If the ownership of the property is found to vest in the Electricity Board as is contended by Shri Sharma, in terms of Section 77(1), the Corporation will be required to discharge its duty in relation thereto as may be prescribed by "any other enactment for the time being in force". Indeed, I am prepared to accept, without making a lease or sale of the lamp posts, etc., it would be within the competence of the Corporation to have right in relation thereto including the right of user thereof in any manner, to be "otherwise conveyed" as contemplated under the said Proviso subject, however, to statutory right, if any, reserved in any law in favour of the Electricity Board so that the interest of the Board is not prejudicially affected. Saying so, I would further like to make it clear that if any franchise in the nature of user of the lamp posts of the nature contemplated under the agreement in question is "conveyed", the entitlement to do so need nut necessarily be related to the right envisaged under Section 132(2)(1). It may be perfectly within Corporation's right to realise any "premium" under such a contract and needless to stress once again that the amount so realised would not be "advertisement tax" contemplated under Section 132(2)(1). An authority for the receipt of premium in such a case would be traceable to the provisions of Sections 8 and 87(a), but under bye-laws to be framed for that as per Section 8.
23. In so far as the question of "advertisement tax" is concerned, that can only be realised in accordance with the provisions envisaged in the bye-laws framed for that purpose and indeed such tax would be leviable separately on each advertisement board and realisable from the particular advertiser whose advertisement is displayed in the particular advertisement board. Asthe bye-laws contemplate, for putting up each advertisement board, separate "Anumati" will be necessary because subject-matter of each advertisement would be individual censorable by the Corporation in terms of the bye-laws. There can be no question of a general "Anumati" or permission contrary to the purpose and intent of the bye-laws. Indeed, right to cancel the "Anumati" as per bye-law No. 9(d) can be exercised in respect of each advertisement separately. Bye-law No. 6 speaks of the right of an individual to apply for "Anumati" for the particular advertisement the applicant would like to display. How ever, as earlier observed, I am not satisfied if the bye-laws, as framed at present, do authorise the Corporation to levy or realise even "advertisement tax" in respect of advertisement boards put up on lamp posts etc. Even so, I would accept Corporation's case that the word "lamp-posts" has not to be given a restricted mean ing and that they would also include "electric poles" generally which carry the "electric supply line" as contemplated under Section 2(f) of the 1910 Act. I would read compulsion in the language of Section 82(e) of 1956 Act for this interpretation of the term "lamp-posts" because the expression does not standalone and is only a part of the clause "lamp posts and other apparatus connected therewith or appertaining thereto".
In my opinion, the amendment in the bye-laws would be necessary involving consultation with the Electricity Board in some manner before permission or "Anumati" under existing bye-laws or even general franchise is granted by the Corporation for displaying any advertisement board on any electric pole, whether it is a "lamp post" or an ordinary "electric pole" over which "electric supply-line" is carried. To that extent, the requirement contemplated under the Government Circular dated 11-1-1982 afore-quoted, may be relevant though the direction of the State Government may not be legal, proper and valid in its entirety.
24. The question which I would now examine is that of the ownership of the electric poles. Although Shri Sharma has laboured hard to press Board's ownership to a plurality of the statutory provisions, I am sure that the core provision is one which finds place in Section 3 read with Section 2(f) of 1910 Act. Indeed, Section 2(f) deserves to be quoted in extenso :
" "electric supply-line" means a wire, conductor or other means used for conveying, transmitting or distributing energy (whether by overhead line or underground cable), together with any casing, coating, covering, tube, pipe or insulator enclosing, surrounding or supporting the same or any part thereof, or any apparatus connected therewith for the purpose of so conveying, transmitting or distributing such energy and includes any support, cross-arm, stay, strut or safety device erected or set up for that purpose:"
25. For supply of electrical energy, Section 3 contemplates grant of licences by the State Government and it is not disputed that the Electricity Board is such a licensee as is contemplated under Section 3. What appears writ large clearly in the language of Section 3, in my opinion, is that "for the conveyance and transmission of energy" licence is granted to "lay down or place electric-supply line" as is contemplated under Section 3. Although Section 3 does not speak further that the "electric supply-line" shall be laid by the licensee at its own cost, that would be implied and absence of an express provision is not to be read as a case of casus omissus. Any other view would be violative of the maxim at res magis valeat quam pareat. Indeed, an anomaly will be created if this view is not taken as it may not be possible for the licensee who is given a licence to supply energy and yet, not authorised to lay down or erect "electric supply-line" at its own cost as the purpose of the licence as indeed of the enactment itself would be otherwise defeated. Erection of the "electric supply-line" must be indeed considered an integral part of the duty of the licensee and also an essential condition of licence under which the licensee is authorised "to supply electrical energy in any specified area". As held in N. T. Veluswami Thevar v. G. Raja Nainar, AIR 1959 SC 422, it is Court's duty to avoid anomaly resulting in construing a statute. Because the basis for the construction is provided by the language itself of Section 3(1), the relevant portion whereof is extracted :
"3. Grant of licences.-- (1) The State Government may, on application made in the prescribed form and on payment of the prescribed fee (if any), grant after consulting the State Electricity Board, a licence to any person to supply energy in any specified area, and also to Jay down or place electric supply lines for the conveyance and transmission of energy".
26. What further bears emphasis is the distinction between the definition of the term "electric supply line" and "service line" which is defined in Clause (1) of Section 2 of the same Act. A "service line" may be a part of the "electric supply line", but for supply of energy to a single customer or a group of customers, us envisaged under Sub-clauses (i) and (ii) respectively of Clause (1), the duty of the licence to provide the "service line" is not statutorily contemplated as it the case with "electric supply line" under Section 3. I appreciate, of course, Shri Sharma's reliance on Rule 91(1) of Indian Electricity Rules, 1956 framed under the 1910 Act which supports the view taken by me. I quote :
"91. Safety and protective devices.-- (1) Every overhead line (not being suspended from a dead bearer wire and not being covered with insulating material and not being a trolley-wire) erected over any part of a street or other public place or in any factory or mine or on any consumer's premises shall he protected with a device approved by the Inspector for rendering the line electrically harmless in case it breaks."
27. Indeed, the term "overhead line" is also defined and in Sub-clause (ii) of Clause (h) of Section 2 of 1910 Act, it means "an electric supply line which is placed above ground and in the open air but does not include live rails of a traction system". Because in Section 2(f) any support for wires used for conveying, transmitting or distributing energy is the integral pan of the "electric supply line" or even of an "overhead line", I have no doubt that all electric poles carrying an "electric supply line" must be deemed to be the property of the licensee and for that matter, in the instant case, the property of the Electricity Board. Under Rule 91 afore-quoted, the Board is held responsible for the up-keep and maintenance of "every overhead line" (particularly of one "erected over any part of a street or other public place") which would also include the electric poles supporting that "line". This is done for the obvious reason that safety of public at large has to be ensured and I have no doubt, the overhead line being the property of the Board, control, maintenance and up-keep thereof is, therefore, vested in the Board.
28. As earlier pointed out, the distinction between "service line" and an "electric supply-line" inheres also the distinction as to liability of the Board to bear the cost of any "service line" as against its liability to bear the cost of an "electric supply line". This distinction is not only manifested in the definition clauses as earlier alluded, support for this may be read in other provisions also. In item No. 3 of Clause VI of the Schedule of the 1910 Act, there is express mention of a contingency where there may arise "any difference or dispute..... as to the cost of any service line". This accords with the provision of d. (g) of Part 5 of the statutory "General Conditions for Supply of Electrical Energy" framed by the Board under the provisions of Section 49(1) of 1948 Act. It contains a deeming provision that "the service line", notwithstanding that a portion thereof has been paid for by the consumers, shall be. the property of the Board which shall maintain it at its cost.....". Because cost of service line need not be solely borne statutorily under Section 3 by the Board, the latter is enabled to make a consumer pay either fuller part cost thereof and yet the Board is made a proprietor thereof by operation of law. In the case of Upper Ganges Valley Electricity Supply Co. Ltd., (1973) 1 SCC 254 : (AIR 1973 SC 683), their Lordships took the view that not only for the ''electric supply line", even for the "service line" which was laid by the licensee with the help of contributions made by the consumers, when the undertaking of the licensee was acquired, the latter had the right to receive compensation. The proprietary or ownership right of the Board in the "electric supply line" or "service lines" statutorily created is not defeated by vesting in the Corporation of the "lamp posts" etc. in terms of Section 82(c) of 1956 Act inasmuch as vesting thereof under that Act is for the limited purpose only as is indicated in the relevant provisions contemplating that the same "shall be held and applied by the Corporation for the purposes of the Act".' Evidently, the: proprietary or ownership right of the lamp posts etc. did not vest in the Corporation in virtue even of Section 82(a) of 1956 Act.
29. The stage has now come to consider the question if Board could assert against the Corporation the right reserved to it under the Government circular dated 11-1-1982. In my opinion, it is rather necessary to consider the scope, and not the source, of authority of the State Government to issue the said circular letter although the validity of the circular is sought to be maintained in terms of the provisions of Section 82 of 1956 Act which make properties mentioned therein, including lamp posts etc., as per clause (e), vest in the Corporation "subject to any special reservation made, or to any special conditions imposed by the Government". Still, I would accept Shri Dubey's contention that the regulatory power of the State Government contemplated under Section 82 cannot be exercised in such a manner that it may tantamount to creating such unreasonable restriction on the power of the Corporation to exercise control over those properties in such manner that the power is reduced to the vanishing point. Indeed, if the Corporation's power to enter into agreement with any person, to transfer to such person any right vested in the Corporation, of "control" of the electric poles, allowing such person to put up thereon advertisement boards, can be validly traced and sustained in terms of Sections 8 and 87(a) of 1956 Act or if the right of the Corporation to impose "advertisement tax" under Section 132(2)(1) on such advertisements is sustainable in law, then that right cannot be killed by the State Government by vesting the right in the Board to "negotiate" with parties intending to put up such advertisements. The Government letter even contemplates that the Board may negotiate the premium leviable for the transfer of the right though the ultimate right to grant permission to put up such advertisement boards is reserved in the Corporation. This would make no sense at all inasmuch as it is not the Board which can claim the premium and indeed, under the Government letter itself, the Board is not given the right to receive payment, of the premium.
30. To the extent the Government letter vests in the Board power "to negotiate" and fix premium for advertisement boards to be put up on electric poles, the regulatory power of the State Government envisaged under Section 82 may not provide sufficient cover for the authority assumed by the State Government. That notwithstanding, the Board's right to be consulted as to the technical feasibility of putting up such advertisement boards on the electric poles owned by it would be available to it dehors the Government letter, in terms of the provisions of 1910 and 1948 Acts discussed above. Therefore, to that extent, that right of the Board may be contemplated in any direction issued by the State Government to the Corporation and as such, the direction in that regard in the Government letter would not be, and is not invalid. Because Board, in the instant case, asserted its right to be consulted and complained that the agreement in question which the Corporation had entered with the appellant was without its concurrence, the agreement would be rendered unenforceable on that ground definitely against the Board In that case, enforcement of the contract merely against the Corporation would be evidently futile in so far as the prayer for injunction is concerned, inasmuch as injunction is prayed against both and injunction against Corporation only would be evidently futile.
31. Having reached the conclusion aforesaid, it is evidently not necessary to test the finding and conclusion of the trial Court on other two questions, namely, of balance of convenience and irreparable injury. Suffice it to say that breach of contract generally is compensable in terms of money. Although Shri Dubey has relied on Section 10, Explanation (ii)(a) of Specific Relief Act to insist that the agreement in question could be specifically enforced and, therefore, the balance of convenience would be in favour of the appellant, I am not convinced. The first answer to the contention is, the agreement is not jointly enforceable against both according to me, and specific performance of the contract, even if that can be decreed against the Corporation, would not entitle the plaintiff/appellant to pray for permanent or temporary injunction against the Board Secondly, the "property" envisaged in Clause (ii)(a) in the instant case would be the right to put up the advertisement boards and that right would not be "movable property" within the meaning of the term employed in Clause (ii). If the advertisement boards, on the other hand, are considered to be "movable property" envisaged under Clause (ii), still the position will not be different. Because, an advertisement board cannot be said to be "not an ordinary article of commerce". Obviously, the agreement did not create any "property" in the electric poles of the appellant.
32. However, according to me, the appropriate provisions to be considered would be those of Sections 36 and 38 of the said Act besides those of Order 39, Rules 1 and 2, C.P.C. The power to grant injunction is as much discretionary as is the power to enforce specific performance of contract envisaged under Section 10 of the said Act. It may be sound exercise of discretion to grant a perpetual injunction and for that matter also temporary injunction when any of the conditions envisaged under Section 38(3) are fulfilled. Although Shri Dubey has complained that the trial Court has ignored the possibility of multiplicity of judicial proceeding in the event of refusal of injunction, he could not place material even at this stage to satisfy me how such proceedings are contemplated. Indeed, I am also not satisfied that in terms of Clauses (b) and (c) of Section 38, any decision can be taken in favour of the plaintiff/appellant In the instant case. It cannot be said that refusal of injunction would result in such injury to the plaintiff/appellant that compensation in money would not afford him adequate relief or that there exists no standard in the instant case fpr ascertaining the actual damage likely to be caused to the plaintiff/appellant if the injunction is refused, albeit to enforce merely the contractual obligation envisaged under an agreement which, according to me, may not be enforceable jointly against both, the Board and the Corporation.
33. For all the foregoing reasons, I have no hesitation to hold that the trial Court's order refusing the temporary injunction in the instant case to, restrain respondents, Gwalior Municipal Corporation and M. P. Electricity Board from interfering with the right under the agreement to display on electric poles the advertisement boards, is not liable to any interference in these two appeals. The impugned order, to that extent, is accordingly maintained.
34. The question that still survives for consideration is, if the trial Court was also justified in rejecting the prayer of the plaintiff/appellant for amendment of the two plaints and the two applications in the two suits, for temporary injunction. The only ground on which the prayer is refused is that the applications were belated and lacked bona fide. The conclusion of the trial Court is based on plaintiffs conduct which can, at best, be considered equivocal. The applications for amendment were admittedly made after expiry of the period of agreement, as originally contemplated, but the fact which the trial Court has ignored is that the construction of Clauses 1 and 5 of the agreement (of the term "niray" particularly) had to be reserved obviously till the date of rendering final decisions in the two suits. The plaintiffs case being that it was the responsibility of the Corporation under clause 5 not only to decide any dispute (nirnaya) but to ensure peaceful enjoyment for a period of five years by the plaintiff of the right granted to the plaintiff under the agreement, he could very well claim that due to interference with that right by the Board, he was entitled to an extended period for enjoyment of the contractual right. I do not think if this Court even would be justified to take the view that the plaintiff has enjoyed uninterruptedly all rights fully which were contemplated under the agreement merely because there was an order of temporary injunction in his favour for a period of over five years, despite counsel for the Board and Corporation having urged strenuously to that effect. I say so because the trial Court had passed the order on 28-5-1985 maintaining only status quo, directing the respondents not to remove the advertisement boards put up on the lamp posts. Shri Dubey has rightly contended that the trial Court or even this Court had never, at any stage, passed any affirmative order in favour of the plaintiff/appellant granting him mandatory injunction to exercise to the full extent his contractual right envisaged under the agreement in question. Indeed, it is not disputed that although there are several hundred electric poles within the territorial limit of the Corporations jurisdiction, the plaintiff could put up advertisement boards only on 200 such poles and from 22 poles, advertisement boards had been removed by the Electricity Board.
35. It is difficult to accept the contention advanced by Sarvashri Sharma and Khedkar that new case is sought to be made out by the plaintiff/appellant and, therefore, amendment of plaints and the applications for temporary injunction in the two suits could not, and is not, to be allowed. Indeed, even the mere fact that the plaintiff/appellant continued to perform his part of the contract under the agreement by making regular and punctual payment of the premium of Rs. 10,000/-reserved therein, would not disqualify plaintiffs prayer so as to be disallowed on the ground that he had abandoned any right by doing so. That prayers for amendment are to be considered benevolently and unless the amendment proposed causes injustice to the other side, the prayer is not to be refused, is now the settled law for which authorities abound (See Vineet Kumar, AIR 1985 SC 817; Panchdeo, AIR 1983 SC 462; Maitreyee Bannerjee, AIR 1982 SC 17; P. H. Patil, AIR 1957 SC 363; Roopabai, 1986 Cur Civ LJ 237 (Madh Pra). The lingering obsession of the trial Court with the view it took on the demerits of plaintiffs' case in disposing of the applications for temporary injunction, blurred the vision of that Court and unduly influenced its decision on the prayer for amendment of pleadings. Taking the view that the agreement having expired, learned Additional District Judge thought that nothing remained to be determined. That the plaintiffs could claim damages for breach of contract to be awarded in the alternative was overlooked.
36. The upshot of the discussion in the preceding paragraphs leads to the only conclusion that the trial Court erred in law in refusing the amendment prayed and to that extent, the relevant part of the impugned order must be, and is, accordingly, quashed. However, the applications for amendment of the plaints in two suits are only allowed; the applications for temporary injunction in both suits having been rejected, there would be no scope for effecting any amendment therein. Let it be clearly understood that the discussion on merits of the case of the plaintiff/appellant being made with respect only to the prayer for temporary injunction, nothing stated herein shall be considered at the time of rendering decision finally in the two suits. On the amended plaint it shall be open to the trial Court to consider what relief, if any, the plaintiff is entitled at the conclusion of the trial of the two suits.
37. In the result, both appeals are allowed in part to the extent indicated above. Parties are left to bear their own costs in both appeals.