Issuance of Writ Mandamus Directing the Respondent to Refund the Security deposit can be Maintainable: Assam High Court

Page No.# 1 8 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 2765 2015 M S POWER GRID ASSOCIATES NEAR SAT SANGHA VIHAR DULIAJAN P.O. DULIAJAN DIBRUGARH ASSAM PIN 786602. REP. BY ITS PROPRIETOR SRI SANJIB KR. GOGOI M S POWER GRID ASSOCIATES NEAR SAT SANGHA VIHAR DULIAJAN P.O. DULIAJAN DIST. DIBRUGARH ASSAM PIN 786602 ASSAM STATE ELECTRICITY BOARD and 3 ORS BIJULI BHAWAN PALTAN BAZAR GUWAHATI 781001 REP. BY ITS CHAIRMAN ASEB BIJULEE BHAWAN PALTN BAZAR GUWAHATI 781001 2:CHIEF GENERAL MANAGER ASSAM POWER DISTRIBUTION COMPANY LIMITED APDCL UPPER ASSAM ZONE UAZ BIJULI BHAWAN 6TH FLOOR GUWAHATI 781001 BIJULEE BHAWAN PALTAN BAZAR GUWAHATI 781001 4:THE GENERAL MANAGER TINSUKIA ELECTRICAL CIRCLE TINSUKIA Page No.# 2 8 HON’BLE MR. JUSTICE DEVASHIS BARUAH Advocate for the Petitioner: Mr. T. Das Ms. A. Hazarika and Ms. L. Bhuyan Advocate the Respondents: Mr. B. Choudhury Standing Counsel Date of hearing & judgment: 22.12.2021 JUDGEMENT AND ORDERHeard Mr. T. Das learned counsel appearing for the petitioner and Mr. B. Choudhury learned standing counsel appearing for all the respondents 2. This is a petition filed under Article 226 of the Constitution of India seeking a writ in the nature of mandamus for a direction to the respondent authorities to release the security deposit amounting to Rs.23 20 835 only deposited by the petitioner as security deposits towards the three agreements dated 30.01.2010 entered into between the petitioner and the Assam State Electricity Boardthe revenue administration of the feeder will be handled jointly by the franchisee and APDCL for next three months 3. Since the joint operation was extended vide minutes of the meeting dtd 27.03.2010 the bills raised by the IRCA Tinsukia not to be considered After detail and threadbare discussions the members opined that the total bill deposited against M S P.G. Associates should be withdrawn from the outstanding amount of IRCA Tinsukia already accumulated and the security deposit amount of Rs.7 86 051 submitted by M S P.G. Associates against the 11 K.V. Jagun feeder may be released and also recommended the matter of release of security deposit submitted by M S P.G. Enterprise may be placed to CMD APDCL for favour of his kind and 6. In terms of the Clause 3 of the said minutes it was agreed that the security deposit amount of Rs.7 86 051 only may be released and also recommended that the matter of release of the security deposit be placed before the Chief Managing Director APDCL for favour of kind consideration and necessary approval. The learned counsel for the petitioner submits that similar decisions were taken in respect of the other two feeders i.e. Deohal and Ketetang 7. In terms of the said decision the petitioner by the communication dated 24.05.2011 Page No.# 5 8 requested the respondent authorities to release the security deposit amount. Similar prayers were again made on 19.10.2011 and on 04.06.2012 respectively for release of the security deposits against the Jagun Deohal and Ketetang feeders. On 13.06.2012 the General Manager of the respondent Electricity Company directed the Dy. General Manager Tinsukia Electrical Circle UAZ APDCL of the respondent Electricity Company to release the security deposits at the earliest as per the terms and conditions of the agreement executed under the IBDF scheme 8. Thereupon in spite of specific direction by the General Manager of the respondent Electricity Company to release the security deposits amount to the Dy. General Manager Tinsukia Electrical Circle UAZ APDCL the said amount having not released the petitioner has filed the instant writ petition for a direction to the respondent authorities to release the security deposits amounting to Rs.23 20 835 only lying with the respondent 9. This Court on 15.05.2015 issued notice to the respondent Electricity Company as regards the claim of the petitioner in the instant proceeding. Thereupon the respondent Electricity Company did not file any affidavit in opposition for a period of more than three years which led this Court to pass the order dated 25.05.2018 directing the respondent authorities to release the security deposit in favour of the petitioner and fixed the matter on 15.06.2018. It was also observed that in the event of failure of the respondent authority to do so an affidavit was to be filed by the respondent No.2 placing on record the reasons for delay in releasing the security deposits. 10. It is only after the order passed by this Court on 25.05.2018 the respondent authorities Page No.# 6 8 woke up and an affidavit was filed by the respondent No.2 wherein it was categorically admitted that the security deposit amount Rs.23 20 835 only is still lying with the respondent authorities. However said amount has not been paid on the ground that the APDCL is entitled to a much larger amount from the petitioner and as such the non release of the security deposits to the petitioner cannot be said to be arbitrary. In that regard in the said affidavit a statement has been enclosed in a tabular form to contend that the respondent Electricity Company is entitled to an amount of Rs.1 38 77 358 only after deducting the amount of security deposits payable to the petitioner. 11. I have heard the submission of learned counsels for both the parties at length and have also perused the record. There is no denial to the fact that the security deposit amounting to Rs.23 20 835 only is still lying with the respondent Authorities. On a pointed query made to the learned counsel for the respondent Authorities as to whether any notice was issued to the petitioner claiming the said amount as mentioned in the affidavit the learned counsel for the respondent submits that he has no instruction in that regard. He submits that the affidavit filed before this Court is based upon the instructions received from the respondent No.2 and the said amount is claimed on the basis of the statement prepared and sent by the Dy. General Manager Tinsukia Electrical Circle UAZ APDCL. Though the said documents were not made part of the affidavit filed by the respondent No.2 the learned counsel for the respondents has produced those statements before this Court on the basis of which the respondent authorities have made the claim 12. On perusal of the said statements placed before this Court it reveals that in respect of the Jagun feeder the statement was prepared on 17.06.2018 whereas in respect of other Page No.# 7 8 two feeders there is no mention of any date. The dispute which has been raised by way of affidavit filed by the respondent No.2 as regards the entitlement of the respondent authorities vis à vis the claim of the petitioner would be such a dispute whereby the petitioner’s entitlement to the relief sought for by way of the present writ petition cannot be adjudicated upon on the ground of disputed question of facts is the question before this 13. From the affidavit filed by the respondent No.2 and the statement placed before this Court it would go to show that the dispute so sought to be raised by way of the affidavit cannot be regarded as a dispute which would divest the jurisdiction of this Court under Article 226 of the Constitution of India in as much as perusal thereof would go to show that the respondent Electricity Company did not raise a dispute prior to filing of the affidavit by the respondent No.2. There is also no material placed on record that such claim which have been made by the respondent authorities have been communicated to the petitioner. There is also no basis shown on which the said claim of Rs.1 38 77 358 only has been made save and except the statement prepared by the Dy. General Manager Tinsukia Electrical Circle UAZ 14. Under such circumstances merely making a statement in the affidavit that the respondents have claims against the petitioner would not suffice to disentitle the petitioner to his claims as made in the instant writ petition. 15. The stand so far taken by the respondent Electricity Company in the opinion of the Court cannot be said to be bonafide and consequently the retention of the security deposits since Page No.# 8 8 the year 2012 till date in spite of the order being passed by this Court on 25.05.2018 is an arbitrary and unreasonable action on the part of the respondent and consequently this Court therefore direct the respondent Electricity Company to release the said security deposits amounting to Rs.23 20 835 only with a period of six weeks from today 16. The above direction shall not however preclude the respondent authorities to make such claim against the petitioner if they are entitled to the same in accordance with the law 17. The observation made here in above would be restricted only to the entitlement of the petitioner to the security deposits only and the said observation would not affect the respondent authorities’ right if any claim is made against the petitioner before the 18. The instruction produced by Mr. B. Choudhury learned standing counsel for the respondent authorities along with the statement be kept in the record and mark as ‘X’ 19. The writ petition stands disposed of. 

Summary: The writ petition was filed under Article 226 of the Constitution of India, like Mandamus directing to release the security deposit. A court order Commanding an Inferior authority to perform an Official duty correctly held by the Hon’ble Assam High Court Before the Hon’ble Mr JUSTICE DEVASHIS BARUAH in the matters of Power Grid Associates v. Assam State Electricity Board [WP(C)/2765/2015]. The background of the case arises from the petitioner entered into the three agreements for the deployment of ‘Input base Distribution Franchise’. The Petitioner was appointed as a Franchise to undertake the management of local distribution and revenue collection in the area, assigned to including minor repair and maintenance activities, provision of new service connections, disconnections, and regularization of illegal consumers as detailed in the said agreement, subject to terms and conditions, as stipulated from time to time by the Assam Electricity Regulatory Commission, in a specific area within the Jurisdiction of the Respondent Electricity Company. The petitioner deposited a sum of Rs. 23,20,835/- as a security deposit, to secure the deposit the performance of the petitioner obligation under the agreement. However, the petitioner could not perform its obligation due to various difficulties faced. The General Meeting agreed on certain deliberation and ended with active participation from the Franchises and discom. The difficulties pointed out by the petitioner was not resolved, for which the petitioner requested to release the security deposit amount being submitted to the Respondent Electricity Company. In the agreement, it is mentioned that the Security Deposit amount released was only agreed upon by the Chief Managing Director, APDCL (Assam Power Distribution Company Limited). The Petitioner filed the Writ Petition for the direction of the Respondent authorities to release the Security Deposits amounting to Rs. 23,20,835/-. The court issued notice to the Respondent and haven’t filed any Affidavit-in-opposition. The dispute raised by way of the affidavit filed by the Respondent is regarded as an entitlement of the Respondent Authorities to the claim of the petitioner. Petitioner entitlement to the relief sought by the way of present writ petition cannot be adjudicated upon the ground of the disputed question of facts. The Hon’ble Court concluded that the Notice issued by the was Arbitrary and unreasonable action on part of the Respondent and directed the Respondent Electricity Company to release the said Security deposit within six weeks.