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4. Heard Mr. Sumeet Gadodia, learned counsel for the petitioners and Mr. Ajit Kumar, learned senior counsel for the respondents.

5. Mr. Sumeet Gadodia, learned counsel for the petitioners while making an elaborate argument to strengthen the case of the petitioners has firstly referred to the Distribution Franchisee Agreement for distribution of power for Jamshedpur Circle which would be frequently referred to by him as well as by the learned senior counsel for the respondents as the various provisions enumerated in the agreement forms the basis of argument by both the sides. Reference has been made to Article 5.1 A of the DFA which is with respect to implementation of Restructured Accelerated Power Development and Reforms Programme (RAPDRP) wherein responsibilities were upon the Distribution Franchisee for preparation of detailed project report for implementation of Part B Programme in consultation with JSEB. It was also the responsibility of the Distribution Franchisee for timely implementation of such projects and the progress of the project had to be intimated to JSEB on a monthly basis. This Article further envisages duties upon JSEB to set up a joint monitoring mechanism along with the Distribution Franchisee to ensure both timely implementation as per plans and course corrections, if any. Submissions have been advanced that the duties and responsibilities of the Distribution Franchisee and the JSEB has been clearly demarcated which reveals that in order to complete the project successfully it had to be a mutually concerted and cooperated effort from both the parties. Learned counsel has thereafter referred to Article 5.6.5(B) and (C) which is with respect to consumer complaint handling and consumer services and the entire consumer complaint handling procedure on approval by the Jharkhand State Electricity Regulatory Commission had to be complied with by the Distribution Franchisee. Article 6 of the DFA deals with metering and measurement at input point and it was the Distribution Franchisee who was to install and operate the check metering system in accordance with this article and Central Electricity Authority (Installation and Operation of Meters) Regulations, 2006. The miscellaneous provisions have been referred to in Article 9 of the DFA and Article 19.3 and 19.4 have been taken note of by the learned counsel for the petitioners which relates to the respective rights of the parties and performance or compliance with their respective obligations under the agreement. Learned counsel for the petitioners has also referred to appendix 1 of the DFA which gives the details of distribution infrastructure of Jamshedpur Circle for the financial year 2010-11 and the said details were subject to verification through joint audit. Learned counsel for the petitioners while referring to few of the provisions of the DFA has tried to lend focus on the fact that for successful completion of the project responsibilities and duties cast upon the petitioners as well as the respondents were mutually inclusive. The subsequent cancellation of the DFA by issuance of the impugned letter dated 06.05.2015 was 'malice in law' on the part of the respondents. To further bolster the contention of the petitioners that the entire action of the respondents were indeed a 'malice in law', he has referred to the supplementary counter affidavit filed on behalf of the respondents which contain various communications as well as the minutes of meetings held between the representatives of both the sides on several occasions. He has also made reference to the minutes of meeting held on 01.07.2013 wherein discussions were made about the intimation given by the independent auditor about the billing date of Jamshedpur Circle which was available for the period April 2010 to October 2010 in the Txt format which opens in Notepad only. Discussions were also made about the actual time which shall be taken by the independent auditor to complete the assigned work relating to opening level of AT & C losses and collection efficiency and determination of average tariff for the base year of 2010-11. The meeting dated 12.07.2013 was held to discuss the progress made by the independent auditor as well as with respect to the issues related to handing over of distribution network to the Distribution Franchisee in Ranchi and Jamshedpur Circle. Learned counsel has also referred to the letter dated 15.07.2013 which is an internal communication of the respondents and which related to handing over of the billing data in soft copy to M/s. Ernest & Young for the year 2010-11. The issue of progress made by the independent auditor as well as handing over of distribution network to Distribution Franchisee in Ranchi and Jamshedpur Circle was once again the subject-matter of the meeting held on 26.07.2013. Constitution of the meeting dated 12.07.2013 was done, as would be evident from the letter dated 30.07.2013 for examining the proposal submitted by the Distribution Franchisee on the issue of taking over the distribution network of Jamshedpur Circle pertaining to field level issues such as installation of input meter at interface point and other field level issues. Further meeting followed and in the meeting dated 24.09.2015, the petitioner no. 1 on the difficulty of change of data in the required format had offered assistance in the conversion process and the IT personnel of the petitioner no. 1 was requested to look into the issue and find out whether it is possible to convert the data in desired format or not. The issue of metering as well as other issues were discussed in the meeting held on 12.11.2013 and it was insisted upon by the petitioner no. 1 that JSEB should take a practical decision regarding installation of interface meters. Further meeting followed as difficulties had arisen with respect to finalisation of methodology for final input price, but the main hindrance was the component to be taken in the amount collected. The independent auditor was directed to submit the initial report incorporating the methodology for calculation of collection efficiency and was to submit a report and it was decided that the Committee had come to an amicable settlement after going through the report submitted by the independent auditor. Learned counsel for the petitioners continuing with his argument has submitted that through letter dated 13.01.2014 issued by JUVNL, an Electrical Executive Engineer of the company was authorised to visit Bhiwandi, Maharashtra to study the input metering complaint as adopted by the distribution licencee as exchange/interface point for the purpose of energy accounting along with other aspect like organisational chart/working of Distribution Franchisee Cell etc. The fees of auditor was to have been increased owing to the delay in project for which the petitioner no. 1 was requested for extension of the contract of the independent auditor and revision of his fees. Reference has also been made to the minutes of meeting held on 03.04.2014 wherein a direction has been given to constitute a meeting to conduct testing of feeders by a third party and calibration of interface meters along with the metering unit by a third party to which both the Distribution Franchisees had showed their willingness. Learned counsel submits that till that point of time, everything was functioning smoothly and regular discussion between both the parties were going on in order to fulfill the terms and conditions of DFA and the first ominous sign of the threat, the DFA was facing came to the fore upon issuance of letter dated 03.07.2014 by the Energy Department, State of Jharkhand addressed to the Chairman-cum-Managing Director, JUVNL. The order dated 22.07.2014 passed in W.P.(C) No. 3358 of 2014 wherein challenge was made to the letter dated 03.07.2014 by which it was directed that the Jharkhand Bijli Vitran Nigam Ltd., if it is contemplating to take any decision in the matter of agreement in question shall not be influenced by the decision of the Government which thwarted to an extent the eminent danger of cancellation of the DFA. Learned counsel submits that in spite of the order dated 22.07.2014 passed in W.P.(C) No. 3358 of 2014, a meeting was held on 05.08.2014 and the alleged irregularities committed in the tender process for selection of input base Distribution Franchisee for Ranchi and Jamshedpur Circle, it was decided to take the opinion of the senior legal advisor of the company and thereafter issue show-cause notice to the Franchisee as per the advice. In spite of taking such a stringent stand without there being any necessity to do so which can be termed as an oppressive, arbitrary and illegal action on the part of respondents, the petitioner no. 1 - company was once again communicated by letter dated 25.02.2015 issued by the Jharkhand Bijli Vitran Nigam Ltd. for seeking the presence of officials of the petitioner no. 1 - company to discuss the issued related to handing over the distribution network to the Distribution Franchisee. Response was given by the petitioner no. 1 to adhere to the terms and conditions of the DFA, but in view of the long delay in implementing the projects, the base year of 2010-11 had to be reworked to 2013-14 to reflect the current day situation. It has been submitted by the learned counsel for the petitioners that the entire acts as enumerated above would reveal that there has been full cooperation from the side of the petitioners to ensure that the project sees the light of the day. The respondents as would be revealed from the minutes of the innumerable meetings held between the representatives of both the sides had made discussions and had taken certain steps in trying to get the project implemented, but the issuance of the letter dated 03.07.2014 changed the entire scenario ultimately leading to cancellation of DFA vide impugned letter dated 06.05.2015. The learned counsel for the petitioners submits that the petitioners did not have any premonition about impending letter of termination dated 06.05.2015 as the entire acts on the part of the respondents did suggest an element of camaraderie as the teething problems and nitty- grities of the work to be undertaken were duly being sorted out. The subsequent act of the respondents as has been submitted by the learned counsel for the petitioners was actuated with malice and therefore can be held to be a 'malice in law'. In this context, learned counsel for the petitioners has referred to the judgment in the case of "State of A. P. and others Vs. Goverdhanlal Pitti" reported in (2003) 4 SCC 739 and in the case of "Ravi Yashwant Bhoir Vs. District Collector, Raigad and others" reported in (2012) 4 SCC 407.

11. Mr. Ajit Kumar, learned senior counsel appearing on behalf of the respondents has tried to controvert the elaborate and meticulous argument advanced on behalf of the learned counsel for the petitioners by making a reference initially to the Electricity Act, 2003 by submitting that the earlier enactments on the subjects that is, the Electricity Act, 1910 and Electricity Act, 1948 had many fallacies and shortcomings and in order to overcome the same, the Electricity Act, 2003 was enacted. He has referred to Section 14 of the Electricity Act, 2003 which deals with the grant of licence and has further referred to 6th proviso to Section 14 while submitting that it was incumbent upon the Distribution Franchisee to complete all the formalities/requirements necessary for grant of licence. It has been submitted that even after expiry of more than 2 years from the date of entering into the DFA, the condition precedent was not fulfilled by the Distribution Franchisee ultimately leading to issuance of the impugned letter of termination of the DFA dated 06.05.2015. Learned senior counsel has referred to the letter issued on behalf of the petitioners dated 02.03.2015 in reference to the letter issued on behalf of Jharkhand Bijli Vitran Nigam Ltd. dated 25.02.2015 and has submitted that the tenor and purport of the letter dated 02.03.2015 suggests that the petitioners have altogether abandoned the project. The said letter demonstrates at paragraph 6 and 7 that the entire infrastructure was dismantled and the same would have to be recreated if it is ultimately decided to go ahead with the project. The learned senior counsel attacking the said letter dated 02.03.2015 further submits that a condition was put forward by the petitioners to change the base year from 2010-11 which was initially agreed upon in the agreement to 2013-14. The conclusion as per the learned senior counsel which can be drawn from the reading of the letter dated 02.03.2015 suggests that it was the petitioners which had virtually requested the respondents to cancel the DFA. Referring to the DFA, learned senior counsel submits that the basic requirement prior to handing over of the assets to the Distribution Franchisee was of fulfillment of the conditions precedent and since the performance guarantee in terms of Article 2.1.1 of the DFA was not furnished/submitted, in spite of lapse of a considerable long period of time, it was within the purview and jurisdiction of the respondents to terminate the DFA. Article 2.1.2 which relates to infrastructure roll out plan was submitted much later by the Distribution Franchisee and the calibration of meter in terms of Article 2.1.4 seems not to have been complied with in view of the letter dated 02.03.2015 which enunciates that the meter was removed. No justification or excuse has been given as to why the meter was removed and if at all the meters were installed, there is no way out to know whether the same were actually installed or not. Therefore, such factual aspects is clearly a disputed question of fact and is thus not amenable to writ jurisdiction. Submission has also been advanced to the effect that Article 2.1.8 had been invoked in view of the continuous delay of the projects on the part of the petitioners in not complying with the conditions precedent and since the said Article reveal about the termination of the agreement at the discretion of the respondents, the question of issuance of show- cause notice prior to exercising of such discretion is a non requirement in terms of the agreement. The meetings which were held between both the sides would suggest that there was full cooperation on the part of the respondents in order to try and remove the various anomalies and obstructions which may have cropped up, but as it seems from the minutes of the meeting as well as from the various correspondences, the petitioners were never interested in fulfilling their part of the agreement and if at all they were interested to undertake the work the conditions precedent would have been fulfilled. The excuse of the petitioners of not submitting the bank guarantee in spite of repeated extensions on the part of the respondents on the basis that the same would be dependent upon the report of the independent auditor does not hold much ground as in terms of Article 2.1.3.5, the average tariff for the base year shall not be changed if the variance is less than 10%. The other limb of argument of the learned counsel for the petitioners with respect to submission of performance guarantee vis-a-vis effective date, the same has been countered by the learned senior counsel for the respondents by submitting that nowhere from the reading of either Article 2.1, Article 11.1 or the definition of effective date as per Article 1 of the DFA does suggest that only after the assets are handed over to the Distribution Franchisee, the bank guarantee has to be furnished. Therefore, the first and foremost step which the learned senior counsel for the respondents has much stressed upon is of complying with the conditions precedent and that too the submission of performance guarantee by way of bank guarantee. It has been submitted that the agreement which was entered into by and between the petitioners and respondents is not a statutory contract and a pure contractual agreement can be a subject of scrutiny only before the Civil Court as such aspects or disputes cannot be looked into or interfered with in view of the limited jurisdiction of a writ court.

2.1.1 Submission of Performance Guarantee The Distribution Franchisee shall submit and maintain valid for the term of this Agreement, a Performance Guarantee to the satisfaction of JSEB in the form of an irrevocable and unconditional standby Bank Guarantee (BG) from any nationalised bank or ICICI bank, IDBI bank, Axis bank, HDFC bank for an amount equivalent to estimated amount payable to JSEB by Distribution Franchisee based on thrice the monthly average of Energy Input at Input Points in Franchisee Area in the Base Year and Input Rates quoted by the Distribution Franchisee for first year of Franchisee term and to be renewed in line with Article 11 of the DFA, each year upto one (1) year after the Expiry of the Franchisee term."

18. Article 2.1.2 relates to infrastructure roll out plan, Article 2.1.3 is with respect to completion of audit of various parameters and it includes within its folds the appointment of an independent auditor in mutual consultation with the Distribution Franchisee and the distribution licencee. Article 2.1.4 deals with calibration of meters. Article 11 deals with how the bank guarantee shall be governed and Article 11.1 states that the bank guarantee shall be initially valid for a period of one year from the effective date. Submission of the performance guarantee in the form of an irrevocable bank guarantee do not specify an amount and the same is dependent on the audit. Article 2.1.3.5 deals with determination of average tariff for the base year which states that if a variance of more than 10% is detected by the independent auditor between the figures given in the RFP document and the final figures arrived at by the independent auditors, the input price of the successful bidder shall be adjusted as per the decision of the independent auditor. Article 2.1.1, Article 11.1 and the definition of effective date at Article 1 of the DFA would have to be read in unison, but even then it does not reflect that the bank guarantee had to be furnished prior to handing over of the assets to the Distribution Franchisee. The bank guarantee is valid for a period of one year from the effective date and the effective date is the date of handing over of the business operations to the Distribution Franchisee after the respective conditions precedent have been satisfied. The contentions of the learned senior counsel for the respondents with respect to fulfilling the conditions precedent before the business operations were to be handed over to the Distribution Franchisee seems not to have a foundational basis for such argument. The conditions precedent of submission of bank guarantee was subject to various parameters and until and unless the said parameters were fulfilled with the active and joint cooperation of all the stake holders including the independent auditor, the question of submission of bank guarantee prior to handing over of the business operations to the Distribution Franchisee pales into insignificance. It is therefore held that one of the reasons which have been assigned in the impugned letter dated 06.05.2015 of non- fulfillment of the conditions precedent obligations is in view of the circumstances enumerated above does not reflect the true picture and cannot be a basis for terminating the DFA. Moreover, if indeed there was some confusion, although it does not seem so on going through the various provisions enumerated above, it was also incumbent for the authorities to have said so in clear terms which they did not. This analogy has been considered by the Hon'ble Supreme Court in the case of "Rashmi Metaliks Ltd. and another Vs. Kolkata Metropolitan Development Authority and others" (supra) wherein it was held as follows: