IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10877 of 2009 1. NAND KISHORE SINGH S/O LATE RAM KHELAWAN SINGH R/O VILLAGE-CHHOTI AIGHU PO- AIGHU, PS & DISTT.- BEGUSARAI AT PRESENT PRESIDENT OF VIDYUT FRANCHISEE SANGH BARAUNI, BEGUSARAI 2. DINESH PRASAD SINGH S/O RAM SAGAR SINGH, R/O VILLAGE- BARAUNI PS-TEGHRA, DISTT- BEGUSARI, AT PRESENT TREASURER OF VIDYUT FRANCHISEE SANGH BARAUNI, BEGUSARAI------------------------PETITIONERS Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECY. DEPT. OF ENGERGY, GOVT OF BIHAR, PATNA 2. THE CHAIRMAN, BIHAR STATE ELECTRICITY BOARD, PATNA 3. THE CHIEF ENGINEER (RE)BIHAR STATE ELECTRICITY BOARD, PATNA 4. GENERAL MANAGER-CUM-CHIEF ENGINEER, MITHILA ELECTRIC SUPPLY AREA, DARBHANGA 5. ELECTRIC SUPERINTENDING ENGINEER, ELECTRIC SUPPLY CIRCLE SAMASTIPUR 6. ACCOUNTS OFFICER, ELECTRIC SUPPLY CIRCLE, SAMASTIPUR ----------------------------------- RESPONDENTS ----------- For the Petitioners: Mr. Basant Kumar Chaudhary, Senior Advocate For the State: Mr. S.K.Singh, AC to SC-21 For the Electricity Board: Mr. A.K.Ojha,Advocate ----------- 4 5 /2/2010 Petitioners want quashing of clause (iii) of letter no. 1562 dated 3.12.2007 issued by Chief Engineer, Rural Electrification, Bihar State Electricity Board as being contrary to the earlier scheme for grant of commission and incentive allowed to franchisee on collection of bills from the consumers of the Board. Annexure-6 is the communication which is challenged in the present writ application. The short fact behind the filing of the present writ application is that the petitioner nos.1 and 2 are stated to be President and Treasurer of what is known as Vidyut Franchisee Sangh Barauni at Begusarai. The writ application has been filed in the representative capacity and the petitioners are said to be duly authorized to do so. - 2 - In a scheme known as Rajiv Gandhi Gramin Vidyutikaran Yojna formulated by the government of India for providing electricity in the rural areas, a provision for appointment of franchisees is envisaged. The franchisees so identified and chosen had to enter into an agreement with the respondent Board. The aim and objective of the scheme as well as responsibility of the franchisees are indicated in what is known as franchisee document which has been brought on record as annexure-1 to the writ application. One of duties cast upon franchisee was for collection of bills from the designated offices of the Board, serve them on the consumers and collect the payment. On due collection it was to be deposited to the collection Bank Account of the designated offices of the Board. The franchisees are entitled commission. Even the rates or the commission are pre determined which is not the subject matter of dispute in the present writ application. The members of the so called Sangh have carried out the responsibility with due diligence. It is stated that they have helped the respondents Electricity Board not only in collecting the current bills but also old bills which have remained unpaid for long period of time. The real problem area is in collection of the old bills and convincing the consumers to pay up their past dues. The Electricity Board in its wisdom to encourage old defaulters to settle their dues had introduced a scheme known as One Time Settlement scheme. Some of the terms and conditions - 3 - of the one time settlement scheme being attractive and lucrative it helped in settlement of old dues. It is stated in the writ application that the franchisees also helped in collecting those dues and depositing it with the respondent. Some of them were even paid their commission but all of a sudden a circular dated 3.12.2009 came to be issued at the level of the headquarters categorically informing one and all that no commission/incentive will be allowed to franchisee on the amount collected under OTS scheme either at the Board’s counter or by franchisee. The relevant clause is Clause (iii). The circular is annexure-6 to the writ application. The circular also states that this procedure of collection or commission/incentive will be applicable with effect from the introduction of the franchisee scheme that is with retrospective effect. There are several grounds of challenge to the said clause. One submission is whether the respondents can charge/amend the terms and conditions of the agreement reached between the franchisee and the respondents from retrospective date. Second submission is whether the commission or the incentive on OTS could be withheld from retrospective effect. The third submission is whether the respondent could be permitted to recover the commission already paid to the franchisees on the basis of the retrospectivity of the circular and finally whether such a clause is per se arbitrary and violative of the Constitution of India. - 4 - The stand of the respondents which emerges from the pleadings in their counter affidavit is that the present writ application is not maintainable on two counts, one that the so- called Sangh is not registered organization and has no legal status to maintain a writ in the representative capacity. The other submission is that the right or the claim of the petitioners flows from an agreement which is a concluded contract and the right and obligations fall within the realm of the private contract and the same cannot be brought under the purview of a writ application specially under Article 226 of the Constitution of India. It is also urged that the agreement and the franchisee document itself in Clause XXI lays down for resolution of dispute between the franchisee and the consumers as well as the franchisee and the Electricity Board. Instead of seeking resolution of the dispute the petitioners have rushed to the Court invoking extra-ordinary jurisdiction under Articles 226 of the Constitution of India. Some other objections are that annexure-6 has been in vogue since 3.12.2007 but the petitioners have decided to challenge the same only at the end of the August, 2009. In otherwords the circular has remained operative for more than a year and no serious objection was ever raised at any quarter against the said clause. One of the reasons could be that the majority of the franchisee do know very well that collection of bills or its payment under OTS scheme is a different arrangement altogether and it does not fall within the domain of the contract - 5 - and the obligation cast upon franchisee specially clause 7 where the responsibilities of the franchisees are specified. The stand of the Board is that the formulation of OTS scheme and its wide publicity has facilitated settlement of old chronic dues. A large number of consumers have voluntarily responded because of the waiver in the entire amount of delayed payment surcharge (DPS) and for which the franchisees have had no role to play in collection or deposit of such bills. The franchisee knew this well enough but to make a quick buck or to gain a wind fall they have voluntarily decided to collect even payments under OTS scheme and deposit with the respondents to corner the incentive or commission just like other regular outstanding bills. With the broad rival stand of the two parties having been taken note of, the question arises is whether the petitioners have made out a case for interference. It is not denied by the petitioners that they are not a registered organization. Also they have not produced any evidence and document to show that they are duly elected President and Treasurer of the so called Sangh. It could be possible they are self- appointed publicity seekers to acquire a role larger than the life. To that extent the respondents are correct in saying that the present writ application cannot be maintained in the representative capacity. The other aspect which requires consideration is whether the writ application ought to be entertained on the basis - 6 - that the two petitioners are also franchisees. The Court has no reservation on the writ being maintained by them but the question which arises is whether annexure-6 can be challenged by way of a writ application for a right which has accrued in favour of the petitioners by way of contract, pure and simple falling within the civil realm. After all it is well settled principle even established by the apex court that a writ may not lie for a concluded contract unless some constitutional violation is established. The so called arbitrariness on the basis of retrospectivity are all matters which emerges from the agreement and the agreement itself provides mechanism for redressal of grievance. The Court however is not unmindful of the fact that in terms of the grievance redressal mechanism a hierarchy has been set up for determination. In the said hierarchy the final arbitrator seems to be the chief Engineer (RE) of the Board. But the author of annexure-6 is the Chief Engineer (RE). In other words the author of the dispute cannot be expected or asked to adjudicate a dispute in which he has himself may have vested interest. Principle of bias cannot be totally ruled out and the Chief Engineer (RE) cannot be expected to decide the dispute with due dispassion as annexure-6 has been issued under his signature. In totality this Court is not inclined to entertain this writ application in a representative capacity of the petitioners, besides the right having flown from a concluded contract. With dispute resolution mechanism built therein, the two petitioners are - 7 - relegated to the said mechanism in their individual capacity with a rider that the Chairman of the Electricity Board shall appoint any officer in the right hierarchy to adjudicate the dispute raised by the petitioners who shall not be the Chief Engineer (RE) of the Board. This writ application is dismissed with liberty to the petitioners as above. RPS (Ajay Kumar Tripathi,J.)