- (1.) The prayer made in this writ application by the petitioners are as follows: (A) For issuance of an appropriate writ, order or direction, including writ in the nature of certiorari, for quashing/setting aside Letter no. 605 dated 06.05.2015 issued under the authority of the Respondent No. 2 whereby and whereunder, Distribution Franchisee Agreement (for short 'DFA') dated 05.12.2012 entered into by and between the petitioners and the respondent Jharkhand Bijli Vitran Nigam Limited, formerly part of Jharkhand State Electricity Board, for appointment of Distribution of Franchisee to undertake the work of electricity supply in Jamshedpur Circle (franchisee area) has been terminated; (B) For issuance of further appropriate writ, order or direction, including writ in the nature of mandamus, directing the respondents to hand over the business operation of franchisee area to the Petitioner no. 2 Company, being the Distribution Franchisee appointed pursuant to the agreement dated 05.12.2012 after reworking the base year and the capital expenses and operation expenses, which is required to be changed reflecting the present current situation as per mutually agreed terms; (C) For issuance of further appropriate writ, order or direction, including writ in the nature of certiorari, for quashing/setting aside the Expression of Interest (for short 'EOI') invited under the authority of the Respondent No. 2 in the month of May, 2015 for selection of input base distribution franchisee for Jamshedpur Circle; & (D) For any other relief or reliefs for which the petitioners are legally entitled in the facts and circumstances of the case.
(2.) Narration of the facts as per the averments made in the writ application are that, the petitioners are Companies registered under the Indian Companies Act, 1956. The petitioner no. 1 is a Tata group company having wide experience in various fields of business and has four decades of experience in Jamshedpur with adequate available infrastructure, experience and expertise to undertake work of distribution franchisee. The petitioner no. 2 company has been incorporated as a special purpose vehicle company after the petitioner no. 1 was declared a successful bidder in respect of Request for Proposal (for short 'RFP') invited by the then Jharkhand State Electricity Board for appointment of Distribution Franchisee in the Jamshedpur Circle. Earlier, the petitioner no. 2 company was known as M/s. T. P. Power Distribution Ltd. which has subsequently been changed to Tata Power Jamshedpur Distribution Ltd. After the unbundling of erstwhile Jharkhand State Electricity Board in terms of the provision contained in the Electricity Act, 2003. Jharkhand Urja Vikas Nigam Ltd. (hereinafter referred to as the 'JUVN') came into existence holding the shares of the three newly recognised company namely, Jharkhand Urja Utpadan Nigam Ltd., Jharkhand Urja Sancharan Nigam Ltd. and Jharkhand Bijli Vitran Nigam Ltd. The erstwhile Jharkhand State Electricity Board in order to improve operational efficiency and quality of service provided to its consumers intended to bring in management expertise through Public Private Participation in the field of distribution of electricity and in terms of such intention as well as the provisions of the Electricity Act, 2003, a RFP document was published by the Board in the month of April 2012 inviting applications for appointment of Distribution Franchisee for Ranchi, Jamshedpur and Dhanbad Circles. Being interested, the petitioner no. 1 participated in the bids with respect to Jamshedpur Circle only and was ultimately declared the successful bidder for Jamshedpur Circle. As regards, Ranchi Circle, Calcutta Electric Supply Company was declared the successful bidder whereas for Dhanbad Circle, the entire bidding was cancelled. A Letter of Intent was issued by the Board to the petitioner no. 1 for its appointment as distribution franchisee for Jamshedpur Circle vide letter no. 1976 dated 09.10.2012. In terms of the RFP document which required incorporation by the successful bidder of special purpose vehicle company for carrying out the work of Distribution Franchisee, the petitioner no. 2 company was incorporated for the said purpose. In terms of the RFP document, a Distribution Franchisee Agreement (hereinafter referred to as the 'DFA') for distribution of electricity for Jamshedpur Circle was executed by and between the petitioners and the then Jharkhand State Electricity Board on 05.12.2012.
(3.) It is the case of the petitioners that the petitioners were all along diligent in making the efforts to comply with the conditions precedent under the agreement, but on account of the delay and latches on the part of the respondents, some of the conditions precedent could not be fulfilled. The petitioners have stated in details the steps which had been taken for fulfillment of the conditions precedent including infrastructure roll out plan, appointment of independent auditor and other conditions. It is also the case of the petitioners that after the change of government in the State, a letter dated 03.07.2014 was sent by the Department of Energy to the Chairman-cum-Managing Director of respondent no. 1 company wherein a direction has been issued to the respondent no. 1 company to take a decision for cancellation of DFA executed by them in respect of Ranchi and Jamshedpur Circle and to take steps for retendering. Being aggrieved by the said communication dated 03.07.2014, the successful bidder of Ranchi Circle namely, CESC Ltd. along with its special purpose vehicle company so constituted prayed for stay of the operation of the said communication and in the order dated 22.07.2014 passed by this Court, it was observed that if the Nigam is contemplating to take any decision pertaining to the DFA, it shall not be influenced by the decisions of the State Government. Pursuant to the order dated 22.07.2014 passed by this Court, a meeting of the Board of Directors of respondent no. 2 company was held on 05.08.2014 wherein it was decided to take the opinion of the senior legal advisor of the company on the issue relating to Distribution Franchisee for Ranchi and Jamshedpur Circle and thereafter to issue show-cause notice to the franchisee as per the advice. The decision of Board of Directors in its meeting dated 05.08.2014 notwithstanding, a letter dated 25.02.2015 was served upon the petitioners in which its office bearers were directed to appear before the respondent no. 2 and discuss the issue regarding handing over of the distribution network to the petitioner no. 2. The meeting was duly attended to and in course of the meeting, it was expressed on behalf of the petitioners that they intend to go ahead with the DFA subject to the condition that the base price for the year is changed as the capital expenses and operational expenses had to be reworked to reflect the current day situation. However, without responding to the offer of the petitioner no. 1 intending to stick with the DFA on the condition of making certain changes in the parameters, a letter dated 06.05.2015 was issued by the respondent no. 2 whereby and whereunder the DFA dated 05.12.2012 entered into by and between the petitioner no. 1 and the respondents with respect to appointment of Distribution Franchisee for undertaking the work of distribution of electricity supply in Jamshedpur Circle was terminated which prompted the petitioners to prefer the present writ application.;