Ranchi Power Distribution Company Limited and Anr Vs. Jharkhand Bijli Vitran Nigam Limited and Ors - Court Judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (C) No. 6542 of 2014 --- 1.Ranchi Power Distribution Company Ltd., a company registered under the provisions of the Companies Act, 1956 and having its Registered Office at barick Bhawan, Sixth Floor, 8, Chittaranjan Avenue, Kolkata – 700072, West Bengal, India 2.CESC Limited, a company incorporated under the provisions of the Companies Act, 1956 and having its Registered Office at CESC House, Chowringhee Square, Kolkata – 700 001, West Bengal … … Petitioners Versus 1. Jharkhand Bijli Vitran Nigam Ltd. (Formerly part of Jharkhand State Electricity Board), a company registered under the provisions of Companies Act, 1956 and carrying on business of distribution of electricity under the Electricity Act, 2003 and having its Registered Office at Engineering Building, H.E.C. Dhurwa, PS Hatia, Ranchi 834004, Jharkhand, India 2.Jharkhand Urja Vikas Nigam Limited (formerly part of Jharkhand State Electricity Board), a company registered under the provisions of Companies Act, 1956 and carrying on business of distribution of electricity under the Electricity Act, 2003 and having its Registered Office at Engineering Building, H.E.C.,' Dhurwa, PS Hatia, Ranchi – 834004, Jharkhand, India 3.State of Jharkhand, through the Secretary, Department of Energy having his office at Nepal House, Doranda, PO & PS Doranda, Ranchi, Jharkhand 4.The Under Secretary, Energy Department, Government of Jharkhand, having his office at Nepal House, Doranda, PO & PS Doranda, Ranchi, Jharkhand 5.Direct Media Distribution Ventures (P) Limited, a company incorporated under the Companies Act, 1956, having its Registered Office and/or carrying on business at “Continental Building”, 135, Dr. Annie Besant Road, PO & PS Worli, District Mumbai – 400 011, Maharashtra 6.Enzen Global Solutions Limited, a company incorporated under the Companies Act, 1956 having its Registered Office at Flat No. 1A, East Wing, Fernhill Gardens Apartment, HSR Layout, Sector – 6, PO & PS HSR Layout, Banglore, 560 102, Karnataka… … Respondents --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioners : M/s. S. Pal, Senior Advocate, Vineeta Meharia & Rishav Dutt, Advocate For the Respondent No. 1 & 2 : Mr. Ajit Kumar, Senior Advocate For the Respondent No. 5 : Mr. Indrajit Sinha, Advocate For the Proforma Respondent : Mr. Sumeet Gadodia, Advocate --- -2- 11/22.05.2015 I. A. No. 2779 of 2015 & I. A. No. 2778 of 2015: Heard Mr. S. Pal, learned senior counsel appearing for the petitioners, Mr. Ajit Kumar, learned senior counsel appearing on behalf of respondent no. 1 and 2, Mr. Indrajit Sinha, learned counsel appearing for the respondent no. 5 and Mr. Sumeet Gadodia, learned counsel appearing for the proforma respondent.

2. The petitioner by virtue of this interlocutory application bearing I.A. No. 2779 of 2015 has prayed for amendment in paragraph 1, 2, 105 and prayer portion of the main writ application.

3. The petitioners had filed W.P.(C) No. 6542 of 2014 with the following prayers: a. “A declaration that the purported decision of JBVNL (as will be evident from its affidavit filed on 17th November, 2014 in LPA No. 247 of 2014 and its board meeting dated 5th August 2014) that there had been gross irregularities and loss of revenue to the tune of Rs. 15,000 crores in the appointment of the petitioners as the distribution franchisee for Ranchi Circle and the consequent threat held out is unfair, unreasonable, arbitrary, malafide, illegal and bad; b. A writ of and/or in the nature of Mandamus do issue directing the respondent authorities and their men, agents and subordinates to forthwith forebear from acting on the basis of the purported decision of JBVNL (as will be evident from its affidavit filed on 17th November, 2014 in LPA No. 247 of 2014 and its board meeting dated 5 th August, 2014) that there had been gross irregularities and loss of revenue to the tune of Rs. 15,000 crores in the appointment of the petitioners as the distribution franchisee for Ranchi Circle; c. A writ of and/or in the nature of Mandamus do issue directing the respondent authorities and their men, agents and subordinates to (i) forthwith complete the conditions precedent prescribed in the DFA dated 5th December, 2012 and physically handover the existing site along with the distribution network for Ranchi Circle to the petitioners -3- in accordance with the commitment made by the state respondents in public interest; (ii) forthwith complete the condition precedent regarding completion of audit of various parameters as represented in the RFP dated 30th April 2012 (as Modified) and DFA dated 5th December, 2012; (iii) forthwith complete the condition precedent regarding calibration of meters as contemplated under Article 2.1.4 of the DFA dated 5th December, 2012; and (iv) forthwith complete all other conditions precedent contemplated; d. A writ of and/or in the nature of Certiorari do issue directing the respondents to produce the records pertaining to the purported decision of JBVNL that there had been gross irregularities and loss of revenue to the tune of Rs. 15,000 crores in the appointment of the petitioners as the distribution franchisee for Ranchi Circle, so that conscionable justice may be done by quashing the same; e. Appropriate Writs and/or orders and/or direction do issue as would afford complete relief to the petitioners; f. Rule Nisi in terms of the prayers above; g. Stay of the purported decision of JBVNL (as will be evident from its affidavit filed on 17th November, 2014 in LPA No. 247 of 2014 and its board meeting dated 5 th August 2014) that there had been gross irregularities and loss of revenue to the tune of Rs. 15,000 crores in the appointment of the petitioners as the distribution franchisee for Ranchi Circle; h. Direction upon the respondents and their men, agents and subordinates to complete the conditions precedent contemplated under the DFA dated 5th December, 2012 and physically handover the existing site along with the distribution network for Ranchi Circle to the petitioners; i. Restrain the respondents from taking any coercive action against the petitioners; j. Ad-interim orders in terms of the prayers (a) to (i) above; -4- k. Such further or other order or orders be made and/or directions be given as this Hon'ble Court may deed fit and proper.”

4. On account of the subsequent development, the petitioners have preferred the present interlocutory application seeking for amending the writ application and the prayer which has been sought to be inserted by way of amendment is quoted hereinunder:

12. “After paragraph 1 (k) of the instant writ petition, the following paragraphs be added and numbered as indicated herein below:- 1(l) A further declaration that the letter dated 6th May, 2015 issued by respondent JVBNL purporting to terminate the DFA dated 5th December, 2012 and the purported re- tendering process initiated by issuance of the expression of expression of interest dated 8th May, 2015 in respect of Ranchi Circle is unfair, arbitrary, malafide, illegal and bad. 1(m) A further writ of and/or in the nature of Mandamus do issue directing the respondent authorities and their men, agents and subordinates to forthwith forbear from acting on the basis of and/or in furtherance of the purported termination letter dated 6th May, 2015 and the purported re-tendering process initiated by issuance of the expression of expression of interest dated 8th May, 2015 in respect of Ranchi Circle; 1(n) A further writ of and/or in the nature of certiorari do issue directing the respondent authorities to produce the records pertaining to the purporting termination letter dated 6th May, 2015 and the purported re-tendering process initiated by issuance of the expression of expression of interest dated 8th May, 2015 in respect of Ranchi Circle, so that conscionable justice may be done by quashing the same; 1(o) Stay of operation of the purported termination letter dated 6fth May, 2015 and the purported re-tendering process initiated by issuance of the expression of expression of interest dated 8th May, 2015 in respect of Ranchi Circle.” -5- 5. The facts which emanates from the averments made in the writ application is that the petitioner no. 2 is engaged in the business of generation, transmission and distribution of electricity since 1899. The petitioner no. 2 – CESC (Calcutta Electric Supply Company) operates four thermal power plants generating 1225 MW of power. The Electricity Act, 2003 was enacted by the Central Government in order to involve the private sector in the business of generation, transmission and distribution of electricity due to deterioration in performance by the State Electricity Boards. The 2003 Act contemplated appointment of distribution franchisee by a distribution licencee. In order to improve the operational efficiency and the quality of services provided to the consumers in the urban areas, the Jharkhand State Electricity Board decided to bring in management expertise through public private participation in distribution of electricity by appointing a distribution franchisee and in continuation of such decision on 07.03.2011, a resolution was adopted by the cabinet for appointment of distribution franchisee. The JSEB issued a notice inviting request for proposal on 30.04.2012 for selection of distribution franchisee for Ranchi Circle, Dhanbad Circle and Jamshedpur Circle. The petitioner no. 2 – CESC had submitted bids in respect of Ranchi Circle, Dhanbad Circle and Jamshedpur Circle on 25.07.2012. A corrigendum dated 03.08.2012 was issued by the JSEB extending the last dates of submission of bids from 03.08.2012 to 10.08.2012. In the meantime on 09.08.2012, CESC withdrew its bid in respect of Ranchi Circle, Dhanbad Circle and Jamshedpur Circle in accordance with the terms of request for proposal and thereafter on 10.08.2012 CESC duly resubmitted its bid in respect of Ranchi Circle and Jamshedpur Circle whereas it did not resubmit its bid in respect of Dhanbad Circle. On 04.09.2012, the technical bids were evaluated by the Technical Bid Evaluation Committee of JSEB and a recommendation was made by the Committee for short listing of CESC and Tata Power (Proforma respondent), both for Ranchi and Jamshedpur Circles for the purpose of opening of financial bids. On 09.10.2012, JSEB issued a letter of intent in favour of CESC with respect to distribution franchisee for Ranchi Circle. In accordance with the terms of the request for proposal, a Special Purpose Company was incorporated by the CESC under the name and style of Ranchi Power Distribution Company Ltd. -6- which is the petitioner no. 1 in this writ application. An affidavit was filed in LPA No. 247 of 2014 on 17.11.2014 that a decision has been taken by the Jharkhand Bijli Vitran Nigam Ltd. in its Board meeting dated 05.08.2014 that there had been a gross irregularity and gross loss of revenue to the tune of Rs.15,000 crores in the appointment of petitioners as distribution franchisee. The said declaration has been challenged in the present writ application with a further prayer as has been quoted above for a writ in the nature of Mandamus directing the respondents – authorities to physically handover the existing sites along with the distribution network for Ranchi Circle to the petitioners. During the pendency of the writ application by virtue of letter no. 60 dated 06.05.2015, the agreement dated 05.12.2012 entered into between the petitioner no. 1 and M/s.Jharkhand Bijli Vitran Nigam Ltd. for distribution franchisee to undertake distribution of electricity supply in the Ranchi Circle was terminated and steps have been taken for retendering the process of appointment of distribution franchisee which has led the petitioners to prefer the instant interlocutory applicationx praying therein for amendment in the writ application as also for stay of the retendering process.

6. Mr. S. Pal, learned senior counsel appearing on behalf of the petitioner has submitted that the writ application (W.P.C. No. 6542 of 2014) was filed on 22.12.2014, but even after lapse of a considerable long period of time and in spite of orders of this Court, no appropriate counter affidavit has been filed on behalf of the respondent nos. 1 and 2. Whatever has been filed purported to be a counter affidavit neither does controvert the contentions raised by the petitioners in the writ application nor does it substantiate the action of the answering respondents in not handing over the distribution franchisee to the petitioners. An issue has merely been raised by way of a preliminary objection with respect to the maintainability of the writ application and thus according to the learned senior counsel for the petitioners is how the respondent nos. 1 and 2 have subsequently resiled from their earlier commitment. It has further been submitted that only to frustrate the petitioners to pursue the present writ application (W.P.C. No. 6542 of 2014) the agreement entered into between the petitioner no. 1 and Jharkhand Bijli Vitran Nigam Ltd. have been terminated; and that too without issuance of any show cause notice. Learned senior counsel -7- continuing with his argument has submitted that without waiting for a future cause of action to take place the Court has unbridled and unfettered jurisdiction to take cognizance if the petitioners are apprehensive of any issues which may surface in future by dint of illegal and colourable exercise of powers by the respondent authorities.

7. Mr. Pal, learned senior counsel has also submitted that the supply of electricity begins at the generating station and from the power generation station, the extra high voltage transmission line transmits to the Grid sub-station and thereafter by virtue of 132 KV transmission line, the same gets connected to 132/133 KV sub-station which is the 33 KV transmission input point. The distribution of the electricity starts from the input point and that is the point where the petitioners come into the picture and through various processes it comes to the distribution transformers from where the distribution lines connect to the low tension consumers. Absence of handing over of the distribution channel as has been indicated above by the learned senior counsel for the petitioners has resulted in causing a huge loss to the petitioners as various steps have been taken with respect to selection of sub-station and line maintenance contractors, taking on lease the warehouse for its functioning as a central store, conducting survey with respect to technical management, survey of the overhead network and digitisation of the route maps, survey estimating the load requirement of street lighting, change of existing meter in mass scale with proper calibrated meters for better revenue protection and reduction of system loss, proper identification of the status of billing and other necessary infrastructural requirements. In support of the contention of the learned senior counsel for the petitioner that a threatened action can also be considered and taken note of by the Court, he has relied upon the case of “D.A.V. College, Bhatinda etc. Vs. The State of Punjab and others” reported in AIR1971SC1731 wherein it was held as follows:

5. “.....................This question has been dealt with fully in the batch of petitions in which we have just pronounced Judgment, where we had also considered the contentions of the learned Advocate General of Punjab and Shri Tarkunde, the learned Counsel for Respondents 2 in this behalf and hence we do not propose again to reiterate the reasons in support of the conclusion that a petition under Article 32 in which petitioners make out a prime facie case that their fundamental rights are either threatened or violated will -8- be entertained by this Court and that it is not necessary for any person who considers himself to be aggrieved to wait till the actual threat has taken place...................”

8. On this score, learned senior counsel for the petitioners has also relied upon the judgment in the case of “Rameshwar and others Vs. Jot Ram and another” reported in (1976) 1 SCC194 wherein the point which fell for consideration before their Lordship was as follows:

5. “The solitary point which thus falls for determination is as to whether the subsequent event of the landowner's death at the appellate stage unsettles the right acquired by the tenants or whether the tribunal must uphold rights which have crystallized as on the date the applications were made and, in any event, the deposits of the first instalment was made by each of the tenants...........................”

9. The Hon'ble Supreme Court has further put a question which is quoted below: “Is not the judicial task simplified by adopting the golden rule that the rights of parties must be determined when they seek justice and not when the last court as had its last say, long years after the litigation was initiated? It went to hold as follows:

6. The philosophy of the approach which commends itself to us is that a litigant who seeks justice in a perfect legal system gets it when he asks for it. But because human institutions of legal justice function slowly, and in quest of perfection, appeals and reviews at higher levels are provided for, the end product comes considerably late..........................

7. The realism of our processual justice bends our jurisprudence to mould, negate or regulate reliefs in the light of exceptional developments having a material and equitable import, occurring during the pendency of the litigation so that the Court may not stultify itself by granting what has become meaningless or does not, by a myopic view, miss decisive alterations in fact- situations or legal positions and drive parties to fresh litigation whereas relief can be given right here..............

9. .................Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may -9- flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage.............. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine.”

10. The learned senior counsel by referring to the aforesaid judgment has submitted that the threatened action which the petitioners were all along apprehending was finally realised by virtue of the issuance of the letter of termination of the agreement as contained in letter no. 604 dated 06.05.2015 and therefore the amendment application must be allowed in view of the fact that the later event after filing of the writ application has made up the deficiency by terminating the agreement. Mr. Pal, learned senior counsel for the petitioners while referring to the supplementary affidavit filed on 28.04.2015 has submitted that during the pendency of the writ application, the Jharkhand Bijli Vitran Nigam Ltd. in terms of letter no. 194 dated 25.02.2015 had convened a meeting and had discussed the issue relating to handing over the distribution network to the distribution franchisee; and that in the said letter also a request for a power point presentation with respect to the progress made on account of taking over of the distribution network of electricity supply circle, Ranchi was made. Pursuant to the said letter dated 25.02.2015 as pointed out by the learned senior counsel for the petitioners, a power point presentation was made on 27.02.2015 and since there was no response forthcoming from the Jharkhand Bijli Vitran Nigam Ltd., a communication was made on 07.04.2015 with a request to handover the Ranchi Distribution Circle to the petitioners. The learned senior counsel for the petitioners thus submits that issuance of letter dated -10- 25.02.2015 requesting for a power point presentation and for discussion of the issue with respect to handing over of the distribution network clearly demonstrates that the respondent – authorities had unequivocally agreed in principle to handover the distribution. The subsequent action terminating the agreement is contrary to the letters mentioned above and is a blatant attempt on the part of the respondents to subterfuge the orders of this Court. It has also been submitted that the energy audit was a condition precedent because the petitioners have to take over from the input point which starts from the generating units and the petitioner has to take over the distribution of electricity for fulfilling various parameters. The learned senior counsel for the petitioners has also submitted that the letter terminating the agreement was in violation of the principles of natural justice as evident in the minutes of the proceeding of the Board of Directors of Jharkhand Bijli Vitran Nigam Ltd. held on 05.08.2014. It was decided to take the opinion of the legal advisor of the company and thereafter to issue show-cause notice to the franchisee. The learned senior counsel thus submits that neither any notice was given prior to termination nor any mention have been made in the minutes of meeting with respect to the power point presentation given by the petitioners. Reference has also been made to the agreement especially to Clause 16.3.1, 16.3.2, 16.3.3 and 16.3.4. In this context, Mr. Pal, learned senior counsel has referred to the judgment rendered in the case of “Mahabir Auto Stores and others Vs. Indian Oil Corporation and others” reported in (1990) 3 SCC752 in which it was held that every action of the State or any instrumentality of the State in exercise of its executive, power must be subject to the rule of law and informed by reasons. It was further held that in appropriate cases actions uniformed by reasons may be questioned as arbitrary in proceeding under Article 226 or Article 32 of the Constitution. The Hon'ble court further went on to add that it depends upon the facts and circumstances of a particular transaction whether hearing is necessary and reasons have been stated. It adds that in any case any right conferred on the citizens which is sought to be interfered, such action is subject to Article 14 of the Constitution and must be reasonable and can be taken only upon the lawful and relevant grounds in public interests. The Hon'ble Supreme Court thereafter held thus” -11- 11. “....................Supplies were stopped suddenly on May 27, 1983. There is no dispute that no intimation was given, no notice was given, no query or clarification sought for and there was no adjudication as such................................................................................. The contention urged on behalf of the appellants was that this is patent violation of all canons of natural justice, fair play and reasonableness. It is submitted that natural justice and reasonableness of the procedure are enshrined under Article 14 of the Constitution.

12. It is well settled that every action of the State or an instrumentality of the State in exercise of its executive power, must be informed by reason. In appropriate cases, actions uninformed by reason may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution........................................”

11. Reference has also been made to the case of “Kumari Shrilekha Vidyarthi etc. Vs. State of U.P. and others” reported in AIR1991SC537 and the relevant portions are quoted hereinbelow:

18. The scope of judicial review permissible in the present case, does not require any elaborate consideration since even the minimum permitted scope of judicial review on the ground of arbitrariness or unreasonableness or irrationality, once Art. 14 is attracted, is sufficient to invalidate the impugned circular as indicated later......................

19. Even otherwise and sans the public element so obvious in these appointments, the appointment and its concomitants viewed as purely contractual matters after the appointment is made, also attract Art. 14 and exclude arbitrariness permitting judicial review of the impugned State action. This aspect is dealt with hereafter.

20. ..................., we are also clearly of the view that this power is available even without that element on the premise that after the initial appointment, the matter is purely contractual. Applicability of Art. 14 to all executive actions of the State being settled and for the same reason its applicability at the threshold to the making of a contract in exercise of the executive power being beyond dispute, can it be said that the State can thereafter cast off its personality and exercise unbridled power unfettered by the requirements of Article 14 in the sphere of contractual matters and claim to be governed therein only by private law principles applicable to private individuals whose rights flow only from the terms of the contract without anything more? We have no hesitation in saying that the personality of the State, requiring regulation of its conduct in all spheres by requirements of Article 14, does not undergo such a radical change after the contractual -12- rights accrue to the other C party in addition. It is not as if the requirements of Art. 14 and contractual obligations are alien concepts, which cannot co-exist.”

12. It has therefore been submitted that since Jharkhand Bijli Vitran Nigam Ltd. is the instrumentality of the State, it was a constitutional obligation in the touchstone of Article 14 of the Constitution to allow the principles of natural justice to be followed, but unfortunately the petitioners were never ever given any prior notice with respect to termination of the agreement.

13. Mr. Pal, learned senior counsel has also prayed for stay of the letter of termination dated 06.05.2015 and the re-tendering process initiated by issuance of expression of interest dated 08.05.2015 by way of I.A. No. 2778 of 2015. It has been submitted by the learned senior counsel for the petitioner that after the amendment application is allowed as a natural corollary to allow such application, the termination letter dated 06.05.2015 and the re-tendering process be ordered to be stayed. It has further been submitted that if stay on the letter of termination and the re-tendering process is not granted, third party rights will be created and even if the petitioner is successful in the distribution of electricity in Ranchi Circle, the other parties which will be aggrieved on account of the re-tendering process will cause hindrance to the petitioner in proper functioning and distribution of electricity in Ranchi circle.

14. Mr. Ajit Kumar, learned senior counsel appearing on behalf of the respondent nos. 1 and 2 on the other hand raised a preliminary objection that the writ petition itself is not maintainable. In this context he has referred to the prayer made in the original writ application with respect to the direction which has been sought for from this Court to physically handover the existing sites along with the distribution network for Ranchi circle to the petitioners and has submitted that such direction at this stage cannot be given in view of the letter issued on 06.05.2015 by which the agreement itself has been terminated and retendering process has been initiated. It has further been submitted that in view of the subsequent development with respect to termination of the agreement with the petitioner in terms of the letter dated 06.05.2015, none of the prayers made in the original writ application survives. It has further been submitted that if the amendment as -13- sought for by the petitioner is allowed, the same would revive the writ application which is dead for all purposes to come. Learned senior counsel for the respondent nos. 1 and 2 further adds that the petitioners without resorting to the Dispute mechanism resolution has straightway filed the present writ application and in either view of the matter, the writ application itself is not maintainable. Learned senior counsel has submitted that since there are several disputed questions of fact, in such circumstances, whether such factual disputes can be allowed to be challenged by the petitioners in the present writ application. He has drawn the attention of the Court to the order passed on 22.07.2014 in I.A. No. 3531 of 2014 arising out of W.P.(C) No. 3358 of 2014 filed by the same petitioners. While referring to the said order, learned senior counsel submits that by way of the said interlocutory application, the petitioner had sought to challenge the letter dated 03.07.2014 issued by the Under Secretary, Department of Energy, Government of Jharkhand by virtue of which the decision to cancel the tender was referred to the Jharkhand Bijli Vitran Nigam Ltd. for taking a decision in the matter. It has been submitted that this Court had recorded that if the Jharkhand Bijli Vitran Nigam Ltd. was contemplating to take any decision in the matter of agreement in question, it shall not be influenced by the decision of the Government. In such circumstances, as has been pointed out by the learned senior counsel for the respondent nos. 1 and 2 that throughout the pendency of the writ application, the petitioners have apprehended a future cause of action contemplated to be taken by the respondent nos. 1 and 2. Learned senior counsel further adds that if at all the petitioners are aggrieved by the letter of termination dated 06.05.2015, the petitioners are always at liberty to challenge the same before the appropriate forum instead of trying to revive a writ application which at the present moment does not survive. Mr. Ajit Kumar, learned senior counsel also contends that the stay application cannot be considered along with the amendment application in view of the fact that the matter of stay can only be considered if the amendment application is allowed. The learned senior counsel for the respondent no. 1 and 2 thus sums up his argument by stating that the amendment application preferred on behalf of the petitioners should be rejected solely on the ground that the termination of the agreement by virtue of letter dated 06.05.2015 -14- initiates a fresh cause of action and in such circumstances, by virtue of the order of termination dated 06.05.2015, the main writ application itself has become infructuous. Accordingly, the present amendment application is liable to be rejected.

15. Mr. Sumeet Gadodia, learned counsel appearing on behalf of the proforma respondents in course of his argument has supported the contentions of the petitioners with respect to allowing of the amendment application and stay of the order of termination dated 06.05.2015 as well as the retendering process. Mr. Gadodia has sought to add apart from what has been argued on behalf of the petitioners that the prayer for amendment and stay made by the petitioners is a bonafide action and the amendment should solely be allowed on the ground that multiplicity of proceeding shall be avoided. It has further been submitted that the prayer seeking to amend the writ application is on account of the termination of the agreement by letter dated 06.05.2015 and since the prayer made in the original writ application and the amendment which has been sought for by the petitioners are a continuous cause of action, as such it cannot be said that the prayer made in the original writ application and the amendment which has been sought for by the writ petitioners are divergent and not in any way connected with each other.

16. Mr. Indrajeet Sinha, learned counsel appearing on behalf of respondent no. 5 has submitted to the extent that the writ petition is not maintainable. It has also been submitted that the steps which the petitioners claim to have taken for purpose of the applications created under D.F.A. as enumerated in paragraph 63 of the writ application is a disputed question of fact and such facts can neither be entertained by the writ court nor can it be looked into while deciding the writ application. He has therefore submitted that the amendment sought for by the petitioner should be rejected outright.

17. Mr. S. Pal, learned senior counsel appearing for the petitioners in reply to the contentions raised by his adversaries has submitted that none of the factual aspects which has been mentioned in the writ application is a disputed question of fact. He has reiterated his opening arguments to the effect that by requesting the petitioners to make a power point presentation and to discuss the issues relating to handing over of the distribution network to the distribution franchisee -15- has waived whatever disputed questions of facts were in existence. Reiterating his earlier submissions, Mr. Pal, learned senior counsel has submitted that the tenor of the letter no. 194 dated 25.02.2015 issued to the petitioner would highlight the implied conduct of the respondent Board in deciding to handover the distribution network to the distribution franchisee, that is the petitioner. Learned senior counsel thus adds that the writ application for all purposes cannot be considered to be dead on account of the conduct of the petitioners because the petitioners in the earlier round of litigation as well as in the present writ application were always apprehending that some illegal action is in the offing. Whatever apprehensions the petitioners had has turned into a reality by virtue of termination of the agreement in terms of the letter dated 06.05.2015. In such circumstances, it has been prayed that the amendment application be allowed and the letter of termination date 06.05.2015 as well as the retendering process be stayed till the disposal of the present writ application.

18. As has been noticed above in the main writ application, one of the prayers of the petitioners was for a direction upon the respondents to comply the conditions precedent contemplated under the D.F.A. dated 05.12.2012 and to physically handover the existing sites along with the distribution network for Ranchi Circle to the petitioners. The petitioners being apprehensive filed supplementary affidavit based on the newspaper reports that the respondent no. 1 is contemplating to cancel the agreement by which the petitioner was appointed as a distribution franchisee for Ranchi Circle. I. A. No. 2703 of 2015 was also preferred by the petitioner for a direction to the respondents not to cancel the agreement dated 05.12.2012 and not to take any coercive action against the petitioners during the pendency of the writ application. The apprehensions so generated ultimately turned into a reality by virtue of the letter of termination dated 06.05.2015 leading to filing of the application for amendment of the writ petition. No doubt it is true that by virtue of issuance of the letter of termination of agreement dated 06.05.2015, the original prayer made in the writ application does not subsist at the present moment. However, the action with respect to termination of the agreement in terms of the letter dated 06.05.2015 cannot be said to be an action which is in isolation to the original prayer made in the writ application. -16- The action taken by the respondent no. 1 during the pendency of the writ application is an action in continuity as the prayer for handing over of the distribution network for Ranchi Circle to the petitioners being the distribution franchisee has been sought to be negated by virtue of such letter of termination. The issues and the prayers made in the original writ application and the subsequent action taken by the respondent no. 1 are interwoven and intermingled and in such circumstances, such action can be held to be an action in continuity to the original prayer made by the writ petitioners. At the cost of repetition, the observations made by the Hon'ble Supreme Court in the case of “Rameshwar and others Vs. Jot Ram and another” (supra) is apt for the purposes of deciding the amendment application and which reads as under:

7. “The realism of our processual justice bends our jurisprudence to mould, negate or regulate reliefs in the light of exceptional developments having a material and equitable import, occurring during the pendency of the litigation so that the Court may not stultify itself by granting what has become meaningless or does not, by a myopic view, miss decisive alterations in fact- situations or legal positions and drive parties to fresh litigation whereas relief can be given right here............”

19. The contention of the learned senior counsel for the respondent nos. 1 and 2 if acceded to would stultify and prevent the Court from taking into consideration subsequent development which has arisen during the pendency of the writ application, if the amendment application is not allowed. Thus the same shall given rise to multiplicity of proceedings and initiation of fresh litigations when the relief as sought to be incorporated in the writ application can be considered in the present writ application itself.

20. In view of the discussions both factual and legal made as above, I am of the considered opinion that the amendment application preferred by the petitioners is fit to be allowed. Accordingly, I.A. No. 2779 of 2015 is allowed.

21. So far as the issue with respect to stay of the letter dated 06.05.2015 terminating the agreement is concerned, it has been strenuously argued by the learned senior counsel for the petitioners that if the prayer of stay is not allowed, the petitioners shall be imposed with a heavy financial burden. Learned senior counsel for the petitioners has further highlighted the action taken by the respondent -17- nos. 1 and 2 in issuing the letter of termination dated 06.05.2015 by submitting that the same was in contravention of the terms and conditions of the agreement and the principles of natural justice has been given a go by while issuing such letter of termination.

22. In the case of “Raunaq International Ltd. Vs. I.V.R. Construction Ltd. and others” reported in (1999) 1 SCC492 the Hon'ble Supreme Court while passing any interim orders with respect to an award or a contract by the State or any public body has cautioned with respect to passing of such interim orders; and that the Court must carefully weigh public interest and only when it comes to a conclusion that there is a overwhelming public interest in entertaining the petition, the Court should intervene. The Hon'ble Supreme Court further went on to add:

12. “Intervention by the Court may ultimately result in delay in the execution of the project. The obvious consequence of such delay is price escalation. If any retendering is prescribed, cost of the project can escalate substantially. What is more important is that ultimately the public would have to pay a much higher price in the form of delay in the commissioning of the project and the consequent delay in the contemplated public service becoming available to the public. If it is a power project which is thus delayed, the public may lost substantially because of shortage in electricity supply and the consequent obstruction in industrial development.”

23. So far as the contention of the learned senior counsel for the petitioners is concerned with respect to the tenability of the letter of termination dated 06.05.2015 on various grounds, the same cannot be considered while deciding the interlocutory applications. Since pursuant to the letter of termination dated 06.05.2015 and in terms of the expression of interests dated 08.05.2015, the retendering process with respect to selection of the distribution franchisee for the Ranchi Circle has already been initiated, this Court would be reluctant to stay either the letter of termination dated 06.05.2015 or the retendering process. The implementation of distribution of electricity by selecting a distribution franchisee has already caused a substantial delay and any interference/intervention by this Court in the retendering process would not subserve the public interest. -18- 24. In the result, I. A. No. 2779 of 2015 is allowed and I. A. No. 2778 of 2015 is dismissed.

25. However, it goes without saying that the entire retendering process undertaken by the respondent no. 1 for selection of distribution franchisee shall be subject to the ultimate result of the writ application. W. P. (C) No. 6542 of 2014:

26. Learned counsel for the petitioners is directed to carry out the necessary amendments by substituting/adding the amended portion in red ink and necessary replacement and insertion be made in the said petition. This exercise should be completed within the period of one week.

27. Learned counsel for the respondents are directed to file their respective counter affidavits within a period of four weeks thereafter.

28. List this case under the heading 'For Admission' on 08.07.2015. (Rongon Mukhopadhyay, J) R. Shekhar Cp 2