Page No.# 1/4 vs The Appellate Authority And 5 Ors
2023 Latest Caselaw 782 Gua

                                                               Page No.# 1/4

GAHC010038632023




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

                              Case No. : WA/73/2023

         TAPASH KUMAR DEV SARMAH AND 5 ORS.
         S/O- JAGABANDHU DEV SARMAH, R/O- HOWLY TOWN, WARD NO.3, P.O.
         AND P.S. HOWLY, DIST.- BARPETA, ASSAM, PIN- 781316

         2: PRASENJIT SAHA
          S/O- BASUDEV SAHA
          R/O- PATILADAHA
          P.O. PATILADAHA
          P.S. MANIKPUR
          DIST.- BONGAIGAON
         ASSAM
          PIN- 783391

         3: RAHENA BEGUM
         W/O- MR. ABDUL KARIM BANIYA
          R/O- GORAMARI
          P.O. GORAMARI
          P.S. BONGAIGAON
         ASSAM
          PIN- 783390

         4: MALLIKA ROY
         W/O- MR. PRADIP KR. ROY
          R/O- UTTAR ABHAYAPURI
          P.O. AND P.S. AND DIST.- BARPETA
         ASSAM
          PIN- 781315

         5: SANJIB SARKAR
          S/O- MR. SUDHANGSHU SARKAR
          R/O- BARPETA ROAD
         W/NO. 3
          P.O. AND P.S. BARPETA ROAD
          BONGAIGAON
                                                           Page No.# 2/4

DIST.- BONGAIGAON
ASSAM
PIN- 781315

6: MALAY MANDAL
 S/O- MR. MANTU MANDAL
 R/O- BARPETA ROAD
 P.O. AND P.S. BARPETA ROAD
 BONGAIGAON
 DIST.- BONGAIGAON
ASSAM
 PIN- 78131

VERSUS

THE APPELLATE AUTHORITY AND 5 ORS.
APPOINTED U/S 127 OF THE ELECTRICITY ACT, 2003, BILUJI BHAWAN,
GHY-01

2:THE ASSAM POWER DISTRIBUTION CO. LTD.
 REP. BY THE MANAGING DIRECTOR
 HAVING ITS HEAD OFFICE AT BIJULI BHAWAN
 PANBAZAR
 GHY-01

3:THE MANAGING DIRECTOR
APDCL
 BIJULI BHAWAN
 GHY-01

4:THE CHIEF EXECUTIVE OFFICER
 BEC
APDCL
 BONGAIGAON
ASSAM

5:ASSTT. GENERAL MANAGER
 ICRA
 DIV-BONGAIGAON
APDCL
 BONGAIGAON
ASSAM

6:THE AREA MANAGER
APDCL
 IRCA
 LAR
 BONGAIGAON
                                                                          Page No.# 3/4

           ASSA

For the appellants            : Mr. M.U. Mahmud, Advocate


For the respondent Nos.2 to 6 : Mr. B. Choudhury, Standing Counsel, APDCL

-BEFORE-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SOUMITRA SAIKIA

27-02-2023

This intra-court appeal is directed against the judgment and order dated 10.02.2023 passed by the learned Single Judge whereby, the writ petition, being WP(C) 5928/2022, preferred by the petitioners with the prayer in the following terms was dismissed.

At the outset, learned Standing Counsel, APDCL appearing for the respondent Nos.2 to 6 has raised preliminary objection regarding maintainability of these proceedings urging that the statutory remedy of appeal under Section 127 of the Electricity Act, 2003 is available to the appellants and for that purpose, they would be required to make pre-deposit in terms of the statute and until and unless the pre-deposit amount is deposited for filing the appeal, the same cannot be entertained.

Learned counsel for the appellants submits that as the industry in question is closed for last more than 1 year 3 months, the appellants are for the present, not in a position to make outright payment of pre-deposit which is mandatorily required for entertainment of the appeal. However, if the payment of pre-deposit is Page No.# 4/4

permitted in instalments over a period of three months, the appellants would be able to abide by the requirement of law, and thereby, they would be successful in pleading their cause before the appropriate forum.

Learned standing counsel, APDCL has opposed this submission urging that if any direction of this nature is given, it would form an incorrect precedent.

In view of the peculiar facts and circumstances of the case and considering the fact that the petitioners' industry is closed for last more than 1 year 3 months, by way of an exception, we grant three months' time to the appellants to make payment of mandatory pre-deposit for entertainment of the appeal under Section 127 of the Act of 2003. If the remaining amount of pre-deposit is paid on or before 29.05.2023, the appeal preferred by the appellants shall be considered and decided as per law.

The appeal is disposed of in terms of the above.

        JUDGE                              CHIEF JUSTICE




Comparing Assistant