Dismissed

M/S Padmesh Beverages v. Assam Power Distribution Company Limited and 3 Ors.

Gauhati HC3 Feb 2021CRP(I/O)/8/2021

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed the revision petition challenging an interlocutory order by an Appellate Authority under the Electricity Act, 2003. The Court declined to interfere at the motion stage, holding it was premature to adjudicate on the admission of new documents before the final order was passed. The Court clarified its observations on new evidence do not prejudice the petitioner’s rig

What did the court decide?

Revision stands closed without interference in the interim order; right to challenge final order preserved.

M/S Padmesh Beverages Vs Assam Power Distribution… — Service and Employment | Gauhati HC (2021)

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Page No.# 1/6

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GAHC010017682021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP(I/O)/8/2021

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M/S PADMESH BEVERAGES

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A REGD. PARTNERSHIP CONCERN HAVING ITS REGD. OFFICE AT BLOCK 7A, 1ST FLOOR, NEHA APARTMENTS S.J.ROAD, ATHGAON, GHY-01 AND ITS INDUSTRIAL UNIT AT KL INDUSTRIAL ESTATE, UDAYAN VIHAR, SATGAON, GHY-781171, ASSAM AND IS REP. BY ITS DULY AUTHORIZED PARTNER SHRI RAJ SHEKHAR AGARWAL, S/O- SHRI MONOJ KUMAR AGARWAL, NEHA APARTMENTS S.J.ROAD, ATHGAON, GHY-01

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VERSUS

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ASSAM POWER DISTRIBUTION COMPANY LIMITED AND 3 ORS INCORPORATED UNDER THE COMPANIES ACT, 1956 AND HAVING ITS REGD. OFFICE AT BIJULEE BHAVAN, PALTAN BAZAR, GHY-01 AND IS REP. BY ITS CHAIRMAN, ASSAM POWER DISTRIBUTION COMPANY LTD., BIJULEE BHAVAN, PALTAN BAZAR, GHY-01

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2:ASSESSING OFFICER

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(UNDER SECTION 126 OF ELECTRICITY ACT 2003) CUM AREA MANAGER

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INDUSTRIAL REVENUE COLLECTION AREA (1) (IRCA-1) BIJULEE BHAVAN PALTAN BAZAR GHY-01

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3:ASSTT. GENERAL MANAGER T AND C DIVISION ASSAM POWER DISTRIBUTION COMPANY LTD. ULUBARI GHY-07

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4:SUB-DIVISIONAL ENGINEER NESD

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Page No.# 2/6

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ASSAM POWER DISTRIBUTION COMPANY LTD. NARENGI GHY-2

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Advocate for the Petitioner : MR G N SAHEWALLA

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Advocate for the Respondent : SC, APDCL

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 03.02.2021

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Heard Mr. G.N. Sahewalla, learned Senior Counsel, assisted by Mr. D. Senapati, learned counsel for the petitioner. Also heard Mr. B.D. Das, learned Senior Counsel, assisted by Mr. H.K. Sarma, learned counsel for the respondents.

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The interlocutory order dated 11.01.2021 passed by the Appellate Authority for Assam Power Distribution Co. Ltd. in Appeal No. 9 of 2019 is under challenge in this application filed under Article 227 of the Constitution of India. In view of the order proposed to be passed and considering the projection that the next date of proceedings is fixed on 10.02.2021, this revision is being disposed of at the motion stage without issuance of notice on the respondents.

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Bereft of elaborate details, it would be sufficient for the purpose of this order to refer to the facts projected by the petitioner very briefly. The T & C team of respondent no.1 had visited the premises of the petitioner to carry out inspection on 18.05.2019 and furnished their inspection/ seizure report under Section 135 of the Electricity Act, 2003, interalia, containing certain observations, prima-facie, indicating theft of electricity. After such inspection, the petitioner’s electricity supply was disconnected. Thereafter, a provisional assessment bill dated 20.05.2019 for Rs.50,26,758/- was issued by the respondent no.2. The petitioner deposited the provisional assessment bill amount along with the reconnection

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charges on 21.05.2019, purportedly, on protest. By a letter dated 27.05.2019 and 19.06.2019, the petitioner had requested for furnishing them photographs and video clips taken during inspection. On the same being furnished, the petitioner had submitted their representation dated 25.06.2019. The assessing officer i.e. the respondent no.2 conducted the hearing on 19.07.2019, wherein the petitioner was directed to submit written submission, which was filed on 27.08.2019. The respondent no.2 by his letter dated 14.11.2019, communicated the order dated 08.11.2019 passed by him, justifying the assessment bill.

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The aggrieved petitioner preferred an appeal before the Appellate Authority constituted under Section 127 of the Electricity Act, 2003. The respondent no.2 appeared upon notice and submitted his para-wise reply dated 19.06.2020. The petitioner projects that the respondent no.2 had made certain statements and relied on certain documents and materials which did not form a part of the inspection report dated 18.05.2019 and were not made the part of the proceedings before the respondent no.2, and which did not form a part of the speaking order dated 08.11.2019. By referring to the statements made in paragraph 12 of this application, it is submitted that the petitioner has enumerated sixteen instances of new materials being produced before the Appellate Authority. Accordingly, the petitioner had filed an application dated 04.08.2020 before the Appellate Authority for striking out the new statements/ submission/ documents and annexures produced by the respondent no. 2 for the first time along with his response on the ground that the petitioner shall suffer prejudice. The respondent no.2 submitted his objection and by order dated 11.01.2021, the Appellate Authority had rejected the prayer made by the petitioner. The aforesaid order is assailed in this revision.

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The learned Senior Counsel for the petitioner has submitted that the respondent no.2 was a public officer and while passing the provisional assessment order, he was exercising the power under the Electricity Act, 2003, as such, he was a public officer and/ or a statutory functionary. It is submitted that it is well established principle when a statutory functionary makes and order based on certain grounds, its validity must be judged by the reasons assigned in the order and cannot be supplemented by fresh reasons or materials.

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Accordingly, it is submitted that the Appellate Authority committed jurisdictional error in rejecting the plea of the petitioner to strike out pleadings and documents, which were not part of the proceeding before the respondent no.2. In support of his submissions, the learned Senior Counsel for the petitioner has referred to the following cases, viz., (i) Mohindar Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405, (ii) Rashmi Metaliks Ltd. & Anr. Vs. Kolkata Metropolitan Development Authority and Ors., (2013) 10 SCC 95, and (iii) T.P. Senkumar, IPS Vs. Union of India and Ors., (2017) 6 SCC 801.

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Per-contra, the learned Senior Counsel for the respondents has submitted that the proceeding before the quasi judicial Authority such as the Appellate Authority of APDCL was not a civil suit where provisions for striking out pleadings as available under Order VI Rule 16 CPC could be applied. Moreover, it is submitted that the Appellate Authority has not yet heard the parties or given its verdict. Therefore, it would be premature for this Court to issue any direction on the Appellate Authority so as to prevent it from exercising its statutory power. It is submitted that at this stage it cannot be presumed that the Appellate Authority would definitely rely on whatever was produced before it. Moreover, it is submitted that the petitioner can always assail the final order on merit if they are aggrieved by the final order.

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It is seen that this situation is regularly faced by all the Courts including this Court. There are uncountable judgments in connection with appeals under Section 100 CPC where various High Courts including the Supreme Court of India has refused to entertain plea taken for the first time before the second Appellate Court or in SLP/ Appeals filed before the Supreme Court of India. Therefore, at the appellate stage, it is not desirable that a mini trial or a preemptory hearing should be held to find out if any plea taken in the appeal contains new grounds on documents which were not available before the Court of first instance. Such additional documents or statements which were not a part of the proceedings before the Court of first instance can always be rejected or discarded by the Appellate Court.

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In connection with appeals before the Appellate Authority for APDCL or

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similar power distribution companies, no legal provisions or authority has been shown wherein it has been held that strict principle of CPC would apply in such proceedings. The learned Senior Counsel for the petitioner has raised a question as to whether the petitioner shall suffer prejudice if the Appellate Authority actually relies on certain new statements and documents, not forming part of the proceedings before the respondent no. 2. The said question is left open to be decided in future if such occasion arises. However, assuming that the order of the Appellate Authority goes against the petitioner, the petitioner would definitely seek remedy from a court or forum competent to exercise power of judicial review against the appellate order. Therefore, it is inconceivable that the petitioner cannot assail the appellate order on the ground that reliance was placed on any material or statement which did not form a part of proceeding before the respondent no.2.

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At this stage, this Court would refrain from appreciating the merit of sixteen instances projected by the petitioner in paragraph 12 of this revision so as to find out which of such plea was not raised or available before the respondent no.2, Assessing Officer-cumArea Manager. The present moment is premature to do so. Moreover, the impugned order, being an interlocutory order, is not required to be interfered with at this stage when such order can effectively be assailed after final order is passed.

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Therefore, the Court is not inclined to interfere with the order dated 11.01.2021 impugned herein insofar as it relates to observations that the respondent no.2 herein was free to place his view/ analysis etc. before the Appellate Authority based on the finding/ inspection of the meter, consumption pattern, etc. which may not figure in the final order of assessment, and insofar as the said order relates to rejection of the plea of the petitioner for striking out certain statements, submissions, documents by the respondent no.2 herein. However, the Court is inclined to hold that the impugned order dated 11.01.2021 shall not be a bar for the petitioner to take all the plea, which has been raised before this Court in this revision, if they are aggrieved by the final order, if any, passed by the Appellate Authority of APDCL, if so advised. It is clarified that the observations made herein is not a result of adjudication on merit, as such, this order shall prejudice none of the parties.

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For the aforesaid reason, the Court is not inclined to burden this order with discussion on the case law cited by the learned Senior Counsel for the petitioner.

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With the aforesaid observation, this revision stands closed.

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JUDGE

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Comparing Assistant

M/S Padmesh Beverages v. Assam Power Distribution Company Limited and 3 Ors.

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M/S Padmesh Beverages v. Assam Power Distribution Company Limited and 3 Ors.

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