Bhartiya Mazdoor Sangh And Anr. vs State Of Nct Of Delhi
2012 Latest Caselaw 6224 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) No.3690/2002
       BHARTIYA MAZDOOR SANGH AND ANR.                           ..... Petitioners
                                Through:     Mr. Kailash Vasdev, Sr. Advocate along
                                             with Mr. K.K. Patra, Ms. Aparajita
                                             Swarup and Ms. Neha Khattar Vidhari,
                                             Advocates.
                       versus
       STATE OF NCT OF DELHI                                    ..... Respondent
                                Through:     Mr. Sandeep Sethi, Sr. Advocate along
                                             with Mr. Anupam Varma and Mr.
                                             Vishal Anand, Advocates for NDPL,
                                             BRPL & BYPL.
                                             Mr. Najami Waziri, Standing Counsel
                                             along with Mr. Abhay Raj Varma,
                                             Advocates for the Govt. of NCT of
                                             Delhi.

        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                ORDER

% 16.10.2012

1. This writ petition filed by the two Unions representing the workmen of the erstwhile Delhi Vidyut Board (DVB) and impleading the Government of the National Capital Territory of Delhi (GNCTD) and the DVB only as respondents was filed seeking the following reliefs:

"A. Issue an appropriate writ order or directions directing the Respondents to invite fresh bids for privatization of DISCOMS giving equal opportunity to all and on the same terms and conditions.

B. Issue an appropriate order in nature of mandamus or any other appropriate writ, order or direction directing the

Respondent to give equal opportunity to the others including Petitioners to bid for the privatization of DISCOMs and quash the conditions of pre-qualification in para 15.3.11 and 15.11.1 of RFQ.

C. Issue a writ of certiorari or any other writ, order or direction in the nature thereof or any other writ, order or direction quashing and setting aside the Delhi Electricity Reform (Transfer Scheme) Rules 2001 issued by the Delhi Government by Notification dated 20th November 2001 bearing No.F.11(99)/2001-power/2867. D. Issue a writ of certiorari or any other writ in the nature thereof or any other writ, order or direction quashing and setting aside Policy Directions issued by the Delhi Government by its Notification dated 22nd November 2001 bearing No.F.11(118)/2001-power.

E. Issue a writ of prohibition, restraining the Delhi Government from executing agreements for privatization of DISCOMs with the present bidders whose bids are not in accordance with the bidding criteria including tariff determination criteria set out in RFQ.

F. Declare Section 3(2) of the Delhi Electricity Reforms Act 2000 to the extent the said Section provides for creation of one member Commission as unconstitutional and void. G. Issue a writ of mandamus or any other writ in the nature thereof or any other writ, order or direction requiring the Delhi Government and its undertakings to create an enabling framework that would facilitate competition in generation and supply of electricity through the use of transmission and distribution networks upon payment of wheeling charges;

H. Pass such other and further order as may be deemed just and proper in the facts and circumstances of the case.

2. The writ petition was accompanied with an application for interim

relief seeking stay of the award of contracts upon unbundling of DVB.

Though rule was issued in the petition as far back as on 31 st May, 2002

when the petition first came up before this Court but the stay as sought was

not granted; it was only observed that any action taken in the meantime

shall abide by the result of the writ petition. Subsequently, vide order dated

29th July, 2002, entities which on the unbundling of DVB had been awarded

the contracts, i.e., of North-West Delhi Electricity Distribution Company

Ltd., South-West Delhi Electricity Distribution Company Ltd., Central-East

Delhi Electricity Distribution Company Ltd., Delhi Power Supply Company

Ltd. and Delhi Power Company Ltd. were impleaded as respondents. The

petition however languished with the petitioner from time to time seeking

directions for production of records. The writ petition was however

dismissed on 24th November, 2004. The petitioners preferred a Special

Leave Petition to the Supreme Court which was granted and converted into

Civil Appeal No.5028/2007. The said appeal was allowed vide order dated

4th August, 2011. Finding that the writ petition had been disposed of under

an impression that the issues raised therein were also pending consideration

in FAO No.199/2002 but which was not so, the

Supreme Court "without going into the merits of the case" set aside the

order dated 24th November, 2004 of this Court of dismissal of the writ

petition and remanded the writ petition for decision afresh in accordance

with law and keeping all questions of law and fact including as to

maintainability of the writ petition open, to be raised before this Court.

Though the Supreme Court had directed expeditious disposal of the writ

petition, "preferably within six months", but the counsels sought

adjournments on one ground or the other.

3. We heard the counsels on 11th October, 2012 when it transpired that

the relief claimed in the petition was against the bids invited by the GNCTD

as far back as in 2001 for unbundling of the DVB. However since no

interim stay was granted, DVB stands unbundled ten years ago and the new

entities on such unbundling have taken over the various tasks/functions of

DVB. The said entities for the last ten years have taken various steps

including making investments. It was the contention of the senior counsel

for the said entities that what has happened in the last ten years during the

pendency of this petition is not capable of being unscrambled.

Considerable merit was found in the said argument. In spite of the interim

order dated 31st May, 2002, of the happenings during the pendency of the

petition to abide by the outcome of the writ petition, the same, even in the

event of the petition succeeding will be fraught with difficulties.

4. Though the contention of the petitioners in the writ petition was that

the workers of DVB and their unions were wrongly excluded from the

tender process initiated upon unbundling of DVB but the senior counsel for

the petitioners argued primarily on the basis of the wrongs now being

committed by the unbundled entities. Reliance in this regard was placed on

the Report of the Public Accounts Committee dated 2nd March, 2006 of the

Delhi Legislative Assembly and grievance was made that though GNCTD

had on earlier occasions been specifically directed to explain the action

taken on the said Report but had in the affidavit filed not done so.

Allegations of errors in tariff determination were also raised. The senior

counsel for the unbundled entities responded by contending that the

petitioners had approached the Court belatedly after implementation of the

scheme for unbundling; that the special foras are available for challenge to

the delay; that the disinvestment in DVB has been upheld in Delhi

Electricity Regulatory Commission v. BSES Yamuna Power Ltd., (2007) 3

SCC 33. It was also contended that electricity distribution is a capital

intensive business and not such which could on disinvestment have been

handed over to the workers, as is the claim of the petitioners.

5. We in the aforesaid state of affairs had enquired from the senior

counsel for the petitioners as to what purpose the present petition would

serve inasmuch as setting the clock back into today's time does not look

feasible. The senior counsel for the petitioners also though unable to rebut

the same, drew attention to prayer paragraphs (C) and (F) above in the writ

petition and contended that the reliefs claimed therein survived. However,

since much has happened in the last over ten years and which is not pleaded

but sought to be argued, we enquired from the senior counsel for the

petitioners as to whether it would not be inappropriate for the petitioners to

withdraw the present petition with liberty to file a fresh petition for the

reliefs surviving. The senior counsel for the petitioners had then sought

time to take instructions and that is how the matter was adjourned to today.

6. The senior counsel for the petitioners today states that he has no

instructions to withdraw the petitions.

7. Notwithstanding the same, we are of the view that what is recorded

hereinabove does not change from the refusal of the petitioners to withdraw

the petition. The relief, if any, to which the petitioners would now be

entitled, would be of setting aside of what has already happened and what

has been implemented for the reason of breach by the aforesaid entities of

the terms on which they were awarded the contracts and of grant to them of

favours not originally provided by the GNCTD. However, as aforesaid, the

pleas in that respect are lacking in the writ petition and it has remained in

the same state as at the time of institution ten years ago.

8. Though the senior counsel for the unbundled entities has contended

that all so called surviving issues also do not survive in view of subsequent

judgments but need is not felt to go into that question at this stage as the

same is to be gone into when a new action, if any, is initiated by the

petitioners.

9. We, therefore, dismiss this writ petition in view of the aforesaid but

grant liberty to the petitioners to take appropriate action for prayers (C) and

(F) supra, stating the events which have taken place subsequent to the filing

of this petition.

No costs.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J OCTOBER 16, 2012 pk