Heard 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/- (Rupees twenty three lakh twenty thousand eight hundred and thirty five) 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 Board (now renamed as Assam Power Distribution Company Ltd./in short ‘the APDCL’).
3. The brief facts of the instant case is that subsequent to a tender, the petitioner entered into three agreements for deployment of input based distribution franchise (IDBF). In terms of the said agreement, the petitioner was appointed as a franchise to undertake the management of local electricity 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 the terms and conditions, as stipulated from time to time by the Assam Electricity Regulatory Commission, in specific area within the jurisdiction of the respondent Electricity Company.
4. In terms of the said agreement, which related to the areas, namely, Jagun, Deohal and Ketetang feeders of the Tinsukia Electrical Circle, the petitioner conjointly deposited a sum of Rs.23,20,835/- only, as the security deposit, to secure the performance of the petitioner’s obligation under the agreement. However, the petitioner could not perform its obligation because of various difficulties faced and this aspect was brought to the attention of the respondent Electricity Company. Accordingly as per the minutes of the meeting held on 27.03.2010, it was agreed upon the following:
“After deliberation it is agreed upon as follows:
A. During the period, all energy bills of consumers shall be prepared by APDCL.
B. The collection shall be done by the APDCL and the franchisee will also pool in his effort during the period.
C. All revenue collection shall be deposited in the APDCL account.
D. As desired by the franchisee, the above process shall be applicable for 3 (three) Feeders, Jagun, Ketchung and Deohal Feeder of Franchisee M/s. Power Grid Associates, Duliajan and Chapakhowa Feeder of M/s. J. S. Electricals.
The meeting ended with a hope that the scheme will be implemented with active participation from the franchises and discom”.
5. Again in another meeting held on 23.05.2011, as the difficulties pointed out by the petitioner could not be resolved, for which the petitioner requested for release of the security deposit amount was submitted to the respondent Electricity Company. In the said meeting, after detail discussions, it was agreed and the relevant portion is quoted here-in-below for convenience:
“1. As per clause 4.2 of the agreement executed with the franchisee, the work of revenue collection by the franchisee shall commence by 1st April, 2020.
2. As per minutes of the meeting held on 27.03.2010 (placed on page no.42), the 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 necessary approval”.
6. In terms of the Clause 3 of the said minutes, it was agreed that the security deposit amount of Rs.7,86,051/- (Rupees seven lakh eighty six thousand and fifty six) 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, 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 (Com- Rev) 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 (Com- Rev) 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 Electricity Company.
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 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/- (rupees one crore thirty eight lakh seventy seven thousand three hundred and fifty eight) 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 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--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 Court.
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/- (rupees one crore thirty eight lakh seventy seven thousand three hundred and fifty eight) only has been made, save and except the statement prepared by the Dy. General Manager, Tinsukia Electrical Circle, UAZ, APDCL.
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 secur
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ity deposits since 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/- (Rupees twenty three lakh twenty thousand eight hundred and thirty five) 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 appropriate authority. 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.