Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : January 08, 2015
Judgment Pronounced on : January 27, 2015
+ LPA 811/2014
TATA POWER DELHI DISTRIBUTION LTD ..... Appellant
Represented by: Mr.A.S.Chandhiok, Sr. Advocate
instructed by Mr.Anupam Varma,
Mr. Nikhil Sharma & Mr. Rahul
Kinra, Advocates
versus
DELHI STATE ELECTRICITY
WORKERS UNION & ORS ..... Respondents
Represented by: Mr.Vedanta Verma, Advocate for R-1
Ms.Meenakshi Midha, Advocate with
Mr.Siddhartha Nagpal, Advocate for
R-2
Ms.Zubeda Begum, Advocate for
Pension Trust/R-3
LPA 812/2014
BSES YAMUNA POWER LTD ..... Appellant
Represented by: Mr.Sandeep Sethi, Sr. Advocate
instructed by Mr.Anupam Varma,
Mr. Nikhil Sharma & Mr. Rahul
Kinra, Advocates
versus
DELHI STATE ELECTRICITY
WORKERS UNION & ORS ..... Respondents
Represented by: Mr.Vedanta Verma, Advocate for R-1
Ms.Meenakshi Midha, Advocate with
Mr.Siddhartha Nagpal, Advocate for
R-2
Ms.Zubeda Begum, Advocate for
LPA No.811/2014 & conn. matters Page 1 of 29
Pension Trust/R-3
LPA 813/2014
BSES RAJDHANI POWER LTD ..... Appellant
Represented by: Mr.Sandeep Sethi, Sr. Advocate
instructed by Mr.Anupam Varma,
Mr. Nikhil Sharma & Mr. Rahul
Kinra, Advocates
versus
DELHI STATE ELECTRICITY
WORKERS UNION & ORS ..... Respondents
Represented by: Mr.Vedanta Verma, Advocate for R-1
Ms.Meenakshi Midha, Advocate with
Mr.Siddhartha Nagpal, Advocate for
R-2
Ms.Zubeda Begum, Advocate for
Pension Trust/R-3
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. CM No.14539/2013 filed by the first respondent who was the writ
petitioner of W.P.(C) No.1698/2010, invoking the provisions of Order VI
Rule 17 of the Code of Civil Procedure, and praying that it be permitted to
amend the writ petition has been allowed by the learned Single Judge vide
impugned order dated May 20, 2014. The appellants in the three appeals
who were respondents No.3 to 5 in the writ petition have filed the three
captioned appeals laying a challenge to the order dated May 20, 2014.
2. The principal grievance of the appellants is that the impugned order is
perfunctory and does not give the reasons for the conclusions arrived at.
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The conclusion arrived is that the amendment sought for amplify the
averments already made in the writ petition and also took into account
subsequent facts and that the cause of action embedded in the tripartite
agreement dated October 28, 2000 is not altered. The other conclusion is
that a fresh writ petition would be maintainable with reference to the
pleadings sought to be incorporated, post amendment, to the writ petition.
On facts, appellants contended that a new cause of action was sought to be
introduced by way of the proposed amendments and reliefs were claimed in
relation thereto which were barred by limitation.
3. It is trite that conclusions need to be supported with reasons and since
learned counsel for the parties were permitted to argue on the merits of the
application for amendment filed by the first respondent, we have taken upon
ourselves the task of adjudicating CM No.14539/2013 after giving reasons
for our conclusion.
4. As would be required, as the take of point while deciding an
application seeking permission of the Court to amend a writ petition, we
identify the take of point: and the same has to be the cause pleaded in the
writ petition as filed. Thereafter, to note the amendments sought for and
then decide whether the amendments are necessary for the purpose of
determining the real questions in controversy between the parties. The
reason being that Order VI Rule 17 of the Code of Civil Procedure
empowers a Court to permit either party to alter or amend her pleadings in
such manner and on such terms as may be just, and mandates that all such
amendments shall be permitted to be made that may be necessary for
purpose of determining the real questions in controversy between the
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parties. Lastly to see whether the proposed amendments seek to introduce a
new cause of action which was barred by limitation.
5. The first respondent in the appeals before us was the writ petitioner
and is a registered and recognized trade union representing the cause of its
members who were the erstwhile employees of the erstwhile Delhi
Electricity Supply Undertaking which was later on constituted into a
statutory board called the Delhi Vidyut Board. When the writ petition was
filed only two respondents were impleaded in the writ petition, being : (i)
Government of NCT of Delhi (respondent No.1), and (ii) Delhi Vidyut
Board Employees Terminal Benefit Fund (respondent No.2).
6. Case pleaded in the writ petition by the writ petitioner is that pursuant
to Sections 14 and 15 of the Delhi Electricity Reforms Act, 2000, the Delhi
Vidyut Board was unbundled and reorganized. The respondent No.1
notified a transfer scheme in exercise of its power under Section 15 read
with Section 16 and Section 60 of the Delhi Electricity Reforms Act, 2000
compulsorily transferring the employees of the Delhi Vidyut Board to
corporations/successor companies. To allay the fear of unbundling of Delhi
Vidyut Board into separate companies a tripartite agreement dated October
28, 2000 was executed between the writ petitioner and the first respondent
under which the benefit of existing service conditions were guaranteed to
the transferred employees, which agreement was reflected in Rule 6(1) of
the Transfer Scheme Rules. As per the tripartite agreement the first
respondent was to create a pension fund in the form of a trust and this gave
birth to the respondent No.2 in the writ petition. The mandate of Section 16
of the Delhi Electricity Reforms Act, 2000 was reiterated in clause 3 of the
tripartite agreement. After respondent No.2 was incorporated, to give effect
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to the tripartite agreement and the mandate of law, a corpus of 1329 crores
`
was advised by the consultant: SBI Caps for purpose of providing terminal
and retiral benefits to the employees of erstwhile Delhi Vidyut Board who
got compulsorily transferred to the successor companies when the Delhi
Vidyut Board was unbundled. The amount of the corpus fund advised to be
created by SBI Caps was based on the actuarial valuation carried out by
M/s.Charan Gupta, an Actuarial Consultancy Service. Under the tripartite
agreement the first respondent was obliged to discharge the pension liability
of the employees of the Delhi Vidyut Board by paying a lump sum onetime
payment to the pension fund so that from the fund pension, service gratuity
and retirement gratuity could be paid to the employees who would
superannuate under the transferee companies in due course of time.
7. That the trust deed under which respondent No.2 was created
stipulates that the trustees shall arrange for an actuarial valuation of the fund
every year by a qualified actuary to determine the solvency of the fund. A
Board of Trustees was appointed by the Lt.Governor to manage the
respondent No.2-fund.
8. Fearing that the shortfall in the corpus of the pension fund may result
in the employees of the erstwhile Delhi Vidyut Board, who was transferred
to the successor companies, may not receive the terminal benefits, the writ
petitioner filed W.P.(C) No.5040/2002 praying that the corpus of the fund
should be enhanced so that the employees receive the terminal benefits. The
writ petition was disposed of on September 16, 2002 in view of the
assurance given by the first respondent that it would guarantee
augmentation in the fund if at any stage there was a shortfall therein.
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9. At a meeting held on June 25, 2003, the trustees of the second
respondent decided to go for an actuarial valuation of the fund, for which
M/s.Ashok Charan, who had done the earlier actuarial valuation was
entrusted with the task to submit a valuation report in respect of the
liabilities of the fund as on December 30, 2003. The report was submitted
which was considered by the trustees of the fund on May 15, 2004 as also
on July 28, 2004. That the second respondent took a decision for a second
opinion to be furnished and accordingly appointed Mr.M.L.Sondhi, an
actuary consultant, who estimated liabilities of the fund as on July 01, 2002
and April 01, 2007 as per a report dated September 13, 2007; bringing out
that as of July, 2002 the under funded liabilities were to the extent of
` 1,253.54 crores. The trustees met on January 17, 2008 and examined the
report to understand the difference between the amount indicated as the
liability of the fund by M/s.Ashok Charan and Mr.M.L.Sondhi. The reason
why the report submitted by Sh.M.L.Sondhi should be accepted were
pleaded and it was highlighted that the respondent No.1 had guaranteed
payment to meet any shortfall and thus it was prayed that a mandamus
should be issued to the Government of NCT of Delhi to meet the shortfall in
the corpus of the fund.
10. From a perusal of the pleadings in the writ petition we find that a
passing reference has been made in paragraph 5, to Rule 6 of the Transfer
Scheme. We simply highlight at this stage that the reference is to Rule 6 of
the Delhi Electricity Reform (Transfer Scheme) Rules, 2001.
11. In the writ petition, as noted above, only the Government of NCT of
Delhi and the Delhi Vidyut Board Employees Terminal Benefit Fund, 2002
were impleaded as the sole respondents, being respondent No.1 and
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respondent No.2 respectively. The appellants of the three appeals: (i) Tata
Power Delhi Distribution Ltd., (ii) BSES Yamuna Power Ltd., and (iii)
BSES Rajdhani Power Ltd. were not impleaded as respondents in the writ
petition.
12. The Government of NCT of Delhi filed CM No.734/2011 in the writ
petition, invoking the provisions of Order I Rule 10 of the Code of Civil
Procedure highlighting that if the writ petitioner succeeded, the three power
companies would be adversely affected, and having not been impleaded as
respondents, would entail a dismissal of the writ petition, and thus it was
desirable to implead the three as respondents. It was pleaded that as per the
Delhi Electricity Reforms Act, 2000, the Delhi Electricity Reforms
(Transfer Scheme) Rules, 2001 and the tripartite agreement, the successor
companies of Delhi Vidyut Board were liable to make contribution to the
fund even for the past period. It was pleaded that in the decision reported as
2010 (IV) SCALE 546 K.R.Jain Vs. GNCTD & Ors. , the Supreme Court
held on May 03, 2010, that the transferee companies on unbundling of the
Delhi Vidyut Board were liable to contribute to the fund.
13. The writ petitioner was advised by the counsel to oppose the
application, pleading that the scope of the writ petition was restricted to the
short funding by the Government of NCT Delhi towards the actuarial
valuation and thus it was pleaded by the writ petitioner that the wider issue
projected by the Government of NCT Delhi as arising for consideration in
the writ petition was not arising.
14. CM No.734/2011 was allowed on September 05, 2011, clarifying that
the stands of the Government of NCT Delhi and the writ petitioner qua
impleadment of : (i) Tata Power Delhi Distribution Ltd., (ii) BSES Yamuna
LPA No.811/2014 & conn. matters Page 7 of 29
Power Ltd., and (iii) BSES Rajdhani Power Ltd., was left open qua the
scope of the writ petition. The three companies distributing electricity in
Delhi were impleaded as respondent Nos.3 to 5. Three more companies
named Delhi Transco Ltd., Genco (Indraprastha Power Generation
Company) and DPCL (Delhi Power Company Ltd.) were impleaded as
respondents No.6 to 8.
15. CM No.14539/2013 was filed by the writ petitioner thereafter praying
to the Court that it may be permitted to insert paras 3A and 3B, after
existing paragraph 3 of the writ petition; substitute existing paragraph 4 as
proposed to be substituted; insert paragraph 4a and 4b thereafter; insert
paragraphs 5A, 6A, 7A, 9A and 19A after existing paragraphs 5, 6, 7, 9 and
19 respectively; and after existing paragraph 24 insert paragraphs 24A to
24W. It was further prayed that after the existing grounds, grounds h to n as
proposed may be permitted to be added and existing prayer (a) be
substituted as proposed i.e. mandamus may be issued to respondents No.3 to
7 to fund the respondent No.2-fund.
16. A pen profile of the proposed amendments may now be drawn up.
17. Expanding upon paragraph 3 of the existing writ petition where it is
simply pleaded that under the Delhi Electricity Reforms Act, 2000, the
Delhi Vidyut Board was unbundled into statutory corporations, in proposed
paragraph 3A sought to be inserted, Section 16 of the Delhi Electricity
Reforms Act, 2000 has been sought to be pleaded by reproducing the same.
The purpose is to focus the attention of the reader that as per Section 16, the
transfer of the personnel of the Delhi Vidyut Board under a transfer scheme
to a transferee company would be with the vesting of the properties as also
rights and liabilities in the company as per the transfer scheme. In the
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proposed to be inserted paragraph 3B, it is sought to be pleaded that to give
effect to the Delhi Electricity Reforms Act, 2000, the first step was a
Request for Qualification Documents for privatization of electricity in Delhi
to be prepared, giving the status of the Delhi Vidyut Board and the manner
of its privatization, which included transfer of past, present and future
liabilities.
18. In the existing paragraph 4 of the writ petition where it is pleaded
that a transfer scheme was notified in terms of Sections 15, 16 and 60 of the
Delhi Electricity Reforms Act, 2000, the proposed to be changed paragraph
has pleadings to the effect that the transfer scheme envisaged by the said
Sections was given teeth statutorily in the form of the Delhi Electricity
Reforms (Transfer Scheme) Rules, 2001, and of which Rules, Rule 6(8) and
6(9) were proposed to be pleaded by a verbatim reproduction thereof, to
highlight that in all statutory schemes and employment related matters,
which included terminal benefits, the relevant transferee shall stand
substituted for the Delhi Vidyut Board in relation to the services of the
personnel statutorily transferred to the transferee and that the Government
of NCT of Delhi shall make appropriate arrangements as regards the
funding to be made so that the existing pensioners are paid the dues and so
are future pensioners. In the proposed to be incorporated paras 4a and 4b, it
is sought to be pleaded that after the selection process of private bidders was
completed a shareholder’s agreement was executed with private companies,
enjoining upon the successor companies to adhere to the provisions of the
transfer scheme with further pleading that Delhi Vidyut Board was
unbundled into six companies; being : (i) Discom 1 (BSES Yamuna Power
Ltd.), (ii) Discom 2 (BSES Rajdhani Power Ltd.), (iii) Discom 3 (TATA
LPA No.811/2014 & conn. matters Page 9 of 29
Power Delhi Distribution Ltd.), (iv) Transco (Delhi Transco Ltd.), (v)
Genco (Indraprastha Power Generation Co.Ltd.), and (vi) DPCL (Delhi
Power Company Ltd.). It is further pleaded that whereas DPCL holds 49%
shares in Discom 1, Discom 2 and Discom 3 respectively, it holds 100%
shares in Genco and Transco.
19. After the existing paragraph 5, wherein the tripartite agreement
dated August 28, 2010 has been pleaded and a brief reference has been
made to Rule 6 of the Delhi Electricity Reform (Transfers Scheme) Rules,
2001, and Clause 3(d) of the tripartite agreement has been highlighted to
bring home the point that the Government of NCT of Delhi was obliged to
make good the shortfall in the pension fund, in the proposed to be added
paragraphs 5A, the pleadings are that the pension fund was created as a part
of the power reform mechanism envisaged under the Delhi Electricity
Reform Act, 2000 and the Delhi Electricity Reform (Transfers Scheme)
Rules, 2001 and that the scheme of the Act of unbundling required assets
as well as liabilities, actual and contingent, existing on the date of transfer
to vests in the successor companies.
20. In the existing paragraph 6 of the writ petition, the mandate of Section
16 of the Delhi Electricity Reform Act 2000 and that of the tripartite
agreement has been pleaded, and in the proposed to be inserted paragraph
6A, pleadings concerning the applicability and the mandate of law enshrined
in Rule 6(8) and Rule 6(9) of the Delhi Electricity Reform (Transfer
Scheme) Rules, 2001 are sought to be incorporated.
21. Existing pleadings in paragraph 7 of the writ petition are concerning
the steps taken in terms of the tripartite agreement to appoint a consultant
and create a corpus of the pension fund. Proposed to be inserted paragraph
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7A seeks to introduce the pleading emanating from Rule 6(8) of the Delhi
Electricity Reform (Transfer Scheme) Rules, 2001 concerning the liability
of the successor companies. Interlinked pleadings qua the interplay of
clause 3(d) (4) of the Tripartite Agreement are sought to be incorporated.
22. Existing para 9 of the writ petition contains pleadings regarding
obligation of the first respondent, under the tripartite agreement, to pay a
lump sum one-time payment in the pension fund, and the proposed to be
added paragraph 9A seeks to plead that while creating the corpus certain
expenditure such as medical reimbursement and LTC payments to the
retired employees was not factored in.
23. The proposed to be inserted paragraph 19A is to make further
pleadings with respect to the actuarial valuations as per the report dated
September 13, 2007 in respect of which pleadings have been made in the
existing paragraph 17 of the writ petition.
24. In the proposed to be inserted paragraph 24A to 24W, the
amendments are that since the three Discoms have already been impleaded
as respondents, the amounts which were claimed from them by the
Government as per the various letters annexed as Annexure P-11
collectively are required to be paid by the companies to the fund. Pleadings
are sought to be incorporated with respect to the decisions taken by the
regulatory commission while fixing the tariff and factoring therein the
liability of the three Discoms to contribute to the pension fund. Extracts
from the tariff orders are sought to be pleaded verbatim.
25. As noted above, mirroring the further pleadings grounds h to n are
sought to be incorporated and existing clause prayer (a) sought to be
substituted as prayed for i.e. the mandamus to be issued to respondent
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No.1 and respondents No.3 to 7 to jointly and severely fund the second
respondent as per the latest actuary valuation.
26. In the writ petition the pleadings would evince that the case of the
writ petitioner is that a decision was taken to privatize the generation,
transmission and distribution of electricity in Delhi and for which the Delhi
Electric Reforms Act, 2000 was promulgated. A reference has been made
to various Sections of the Delhi Electric Reforms Act, 2000 to plead that the
existing Delhi Vidyut Board, which hitherto fore was discharging the
statutory obligation of generating, transmitting and distributing electricity in
Delhi was to be wound up by the process of disinvestment and companies
would take over the generation, transmission and distribution of electricity
in Delhi. The statutory provisions regulated the transfer schemes to be
framed concerning reconstruction and mandated that the scheme would
specifically deal with the rights and liabilities comprised in the new
companies which would be formed. The writ petition has heavily relied
upon Section 15 and Section 16 of the Delhi Electric Reforms Act, 2000 and
relevant would it be for us to note sub-Sections 3, 6, 7 and 9 of Section 15
and sub-Section 1 and sub-Section 2 of Section 16. They read as under:-
“15(3 ) Such of the rights and powers to be exercised by the Board
under the Electricity (Supply) Act, 1948 (Central Act 54 of 1948),
as the government may, by notification in the official gazette,
specify, shall be exercisable by a company or companies
established as the case may be, under Section 14, for the purpose
of discharge of the functions and duties with which it is entrusted.
15(6) A transfer scheme may -
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(a) provide for the formation of subsidiaries, joint venture,
companies or other schemes of divisions, amalgamation,
merger, reconstruction or arrangements;
(b) define the property, interest in property, rights and
liabilities to be allocated -
(i) by specifying or describing the property, rights and
liabilities in question,
(ii) by referring to all the property, interest in property,
rights and liabilities comprised in a specified part of the
transferor's undertaking, or
(iii) partly in one way and partly in the other:
Provided that the property, interest in property, rights and
liabilities shall be subject to such further transfer as the
government may specify;
(c) provide that any rights, or liabilities specified or described
in the scheme shall be enforceable by or against the
transferor or the transferee;
(d) impose on any licensee an obligation to enter into such
written agreements with, or execute such other instruments in
favour of any other subsequent licensee as may be specified in
the scheme;
(e) make such supplemental, incidental and consequential
provisions as the transferor licensee considers appropriate
including provision specifying the order in which any transfer
or transaction is to be regarded as taking effect;
(f) provide that the transfer shall be provisional subject to the
provisions of Section 18.
15(7) All debts and obligations incurred, all contracts entered into
and all matters and things done by, with or for the Board, or a
company or companies established as the case may be, under
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Section 14 or generating company or distribution company or
companies before a transfer scheme becomes effective shall, to the
extent specified in the relevant transfer scheme, be deemed to have
been incurred, entered into or done by, with or for the government
or the transferee and all suits or other legal proceedings instituted
by or against the Board or transferor, as the case may be, may be
continued or instituted by or against the government or concerned
transferee, as the case may be.
15(9) The Board shall cease to exist with the transfer of functions
and duties specified and with the transfer of assets as on the
effective date.
x x x
(1) The government may by a transfer scheme provide for the
transfer of the personnel from the Board to a company or
companies established as the case may be, under Section 14 and
distribution companies (hereinafter referred to as "transferee
company or companies") on the vesting of properties, rights and
liabilities in a company or companies established, as the case may
be, under Section 14 or the distribution companies.
(2) Upon such transfers the personnel shall hold office in the
transferee company on terms and conditions that may be specified
in the transfer scheme subject, however, to the following, namely:
(a) that the terms and conditions of the service applicable to
them in the transferee company shall not in any way, be less
favourable than or inferior to those applicable to them
immediately before the transfer;
(b) that the personnel shall have continuity of service in all
respects; and
(c) that the benefits of service accrued before the transfer
shall be fully recognized and taken in account for all
purposes including the payment of any and all terminal
benefits.”
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27. In the writ petition a passing reference has been made to the Delhi
Electricity Reforms (Transfer Scheme) Rules, 2001 with respect to the
pleading that the said Rules were to give flesh and blood to the skeleton
structure provided by the Delhi Electricity Reforms Act, 2000. A brief
reference has been made to Rule 6.
28. Relevant would it be for us to highlight clauses b, c, h and k of Rule
2, sub-Rule 2 of Rule 3 and sub-Rule 8 and 9 of Rule 6 of the Rules, which
read as under:-
“(b) "assets" includes all rights, interests and claims of whatever
nature as well as block or blocks of assets of the Delhi Vidyut
Board;
(c) "Board" means the Delhi Vidyut Board constituted under
Section 5 of the Electricity (Supply) Act, 1958 (54 of 1948);
(h) "DISCOMS" means and includes DISCOM 1, DISCOM 2 and
DISCOM 3 collectively.
(k) "liabilities" include all liabilities, debts, duties, obligations
and other outgoings including contingent liabilities, statutory
liabilities and government levies of whatever nature, which may
arise in regard to dealings before the date of the transfer in
respect of the specified undertakings;
x x x
3(2) Nothing in Sub-rule (1) shall apply to rights,
responsibilities and obligations in respect of the personnel and
personnel related mattes, which have been dealt in the manner
provided under Rule 6.
x x x
6(8) Subject to Sub-rule (9) below, in respect of all statutory and
other schemes and employment related matters, including the
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provident fund, gratuity fund, pension and any superannuation
fund or special fund created or existing for the benefit of the
personnel and the existing pensioners, the relevant transferee
shall stand substituted for the Board for all purposes and all the
rights, powers and obligations of the Board in relation to any and
all such matters shall become those of such transferee and the
services of the personnel shall be treated as having been
continuous for the purpose of the application of this sub-rule.
6(9) The government shall make appropriate arrangements as
provided in the tripartite agreements in regard to the funding of
the terminal benefits to the extent it is unfunded on the date of the
transfer from the Board. Till such arrangements are made, the
payment falling due to the existing pensioners shall be made by
the TRANSCO, subject to appropriate adjustments with other
transferees.
For the purpose of this sub-rule, the term -
(a) "existing pensioners" mean all the persons eligible for
the pension as on the date of the transfer from the Board
and shall include family members of the personnel as per
the applicable scheme; and
(b) "terminal benefits" mean the gratuity, pension, dearness
and other terminal benefits to the personnel and existing
pensioners.”
29. Meaningfully read, the pleadings in the writ petition bring out that
when the Government was contemplating unbundling of the Delhi Vidyut
Board for handing over the generation, transmission and distribution of
electricity to companies, the erstwhile employees of the Delhi Vidyut Board
expressed apprehension and reservation regarding their service conditions
and therefore the Union was taken into confidence. The assurance of
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service conditions being protected was reduced into writing when a tripartite
agreement dated October 28, 2000 was executed.
30. Focusing in the writ petition that the Government of NCT of Delhi
had undertaken to fund any shortfall in the pension fund which was created,
there is a passing reference to the proportionate burden being passed on to
the successor companies and for which we may highlight that in paragraph
20 of the writ petition it has been specifically pleaded that though the
responsibility of the corporate entities and the trust, the Government of NCT
of Delhi has specifically guaranteed that terminal benefits shall be paid to
the employees of the erstwhile Delhi Vidyut Board.
31. If we focus on the pleadings of paragraph 19 of the writ petition it
would be apparent that there are pleadings concerning events up to the year
2008 with reference to actuarial valuation reports concerning the liabilities
concerning terminal benefits payable to the employees of the erstwhile
Delhi Vidyut Board and the matter being under consideration as to which
actuarial valuation report needs to be accepted and what amount needs to be
quantified to augment the fund.
32. The proposed amendments seek to expand upon the somewhat brief
pleadings in the writ petition to bring out that after the Delhi Electric
Reforms Act, 2000 and the Delhi Electricity Reforms (Transfer Scheme)
Rules, 2001 were promulgated, as a first step of privatization, the Request
for Qualification (RFQ) documents for privatization of electricity
distribution in Delhi were floated, giving in detail the status of the Delhi
Vidyut Board, and the manner of privatization thereof, wherein it was
specifically brought to the notice of the bidders that Delhi Vidyut Board was
being offered to private companies as a going concern on business valuation
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method, transferring all the past, present and future liabilities including that
of existing employees as well as the retirees. The transfer scheme was
notified on November 21, 2001, under which the distribution companies,
generation, transmission and holding companies were identified, and as
regards distribution 3: Discom 1, Discom 2 and Discom 3 were notified.
33. There are various schedules attached to the scheme 2001 and we find
that the distribution undertaking, its assets, liabilities and proceedings
concerning the distribution are specified in Part III in Schedule H.
34. Whilst it may be true that the three Discoms as also Genco, Transco
and the holding company have not been impleaded as respondents, but there
are specific averments in paragraph 20, as noted above, that the said
transferee company have to share the burden, notwithstanding the
Government of NCT of Delhi standing guarantee to make good any shortfall
in the fund. In other words there are brief pleadings in the writ petition that
the principal liability is that of the six transferee companies which came into
being when Delhi Vidyut Board was unbundled.
35. It is apparent that this was the foundation when CM No.734/2011 was
allowed by the learned Single Judge, without giving reasons as to why the
application was allowed, vide order dated September 05, 2011 impleading
the six companies which took over the assets and liabilities of Delhi Vidyut
Board on it being unbundled, as per the schedule of the scheme of
unbundling were impleaded.
36. The decision to implead the six successor companies as respondents
was premised on the language, though no expressly stated in the order, of
Order I Rule 10 (2) of the Code of Civil Procedure which enjoins upon a
Court to implead a party in a suit whose presence before the Court would be
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necessary in order to enable the Court to effectually and completely
adjudicate upon and settle all the questions involved in the suit , and for
which determination the Court had kept in mind the interest of the
successor-in-interest companies with respect to the pleadings of the existing
parties; and the interest being of a kind which required their presence.
37. Why the three appellants and three other companies which were the
successor-in-interest of the Delhi Vidyut Board were impleaded as
respondents was that keeping in view the pleadings in the writ petition filed
by the first respondent it was imperative that they should be impleaded as
respondents inasmuch as if the mandamus was issued in the writ petition as
prayed for the right and interest of the said six companies was likely to be
affected inasmuch as the second respondent could have called upon the six
companies to make proportionate contributions to augment the fund. The
Government of NCT of Delhi which had guaranteed to make good any
shortfall in the fund was obviously interested that the said six companies
should be impleaded as respondents, and we find that in the application filed
by the Government of NCT of Delhi to seek impleadment of the six
companies it was pleaded that the principal liability to make good any
shortfall in the fund is that of the six successor companies when Delhi
Vidyut Board was unbundled. The importance of the amendments prayed
for has thus to be understood with reference to the law to implead a party in
a pending litigation keeping in view the possibility of the interest of the
party concerned which may be effected by a decision taken, and we simply
highlight that it would then become imperative for the Court to ensure that
parties amend their respective pleadings so as to enable the Court to
LPA No.811/2014 & conn. matters Page 19 of 29
effectively settle all the issues which arise for consideration and affecting
the right or interest of the parties.
38. It also must not be lost sight of that the six companies were
impleaded way back in the year 2011, under an order which was not
appealed against and hence has attained finality.
39. That apart, as we have already highlighted thrice above, in paragraph
20 of the writ petition there are pleadings that to make good any shortfall in
the corpus of the second respondent-fund the responsibility was that of the
six successor-in-interest companies to make good the shortfall in the fund.
40. It would have been a quixotic situation if the six successor-in-interest
companies were impleaded as respondents but without clarificatory
pleadings post their impleadment and thus to remove the dreamy situation
which had come into being, the dawn of awakening warranting the sun to
rise by illuminating, so that the six newly impleaded respondents could be
clearly shown, what issues of law and fact were in focus requiring a
response from them. It is trite that purpose of pleadings is to bring out the
stand of the parties with clarity so that each knows the stand of the other and
is not taken by surprise as held in the decision reported as (2008)17 SCC
491 Bachhaj Nahar vs. Nilima Mandal & Anr. ; (1998) 8 SCC 315 D.M.
Deshpande & Ors. Vs. Janardhan Kashinath Kadam and (1987) 2 SCC 555
Ram Sarup Gupta Vs. Bishun Narain Inter College & Anr.
41. While discussing the importance of stating clear pleadings with
regard to any party in a litigation, the Supreme Court in Bachhaj Nahar ’s
case (supra) held as follows:
“12. The object and purpose of pleadings and issues is to
ensure that the litigants come to trial with all issues clearly
defined and to prevent cases being expanded or grounds being
LPA No.811/2014 & conn. matters Page 20 of 29
shifted during trial. Its object is also to ensure that each side is
fully alive to the questions that are likely to be raised or
considered so that they may have an opportunity of placing the
relevant evidence appropriate to the issues before the court for
its consideration. This court has repeatedly held that the
pleadings are meant to be given to each side intimation of the
case of the other so that it be met, to enable courts to determine
what is really at issue between the parties, and to prevent any
deviation from the course which litigation on particular causes
must take.”
42. In addition to the general law of pleadings stated above, the Court has
a duty to ensure that pursuant to an impleadment under Order 1 Rule 10(2),
relevant pleadings stating the case against the newly added parties is
included by way of an amendment by the plaintiff/petitioner under Sub-rule
4 of Rule 10 of Order II of the Code of Civil Procedure, which reads as
under:-
“ Where a defendant is added, the plaint shall, unless the Court
otherwise directs, be amended in such manner as may be
necessary, and amended copies of the summons and of the
plaint shall be served on the new defendant and, if the Court
thinks fit, on the original defendant.”
43. The High Court of Andhra Pradesh had an occasion to render a
decision with respect to Order 1 Rule 10 (4) of the Code of Civil Procedure.
The opinion is reported as 1993 (3) ALT 44 S.V. Krishna Reddy Vs. S.
Mariam Bee.
44. The plaintiff was seeking specific performance of an agreement to
sell against the Defendant No.1, who had entered into a partition with
Defendant No.2 to 4 with respect to the suit property. The plaintiff sought to
add Defendant No.2 to 4 as parties and contended that there cannot be a
LPA No.811/2014 & conn. matters Page 21 of 29
joint family among Muslims and that the partition deed was a sham.
Accordingly, the plaintiff sought amendment of his reliefs in the plaint. The
High Court set aside the order of the Subordinate judge disallowing the
impleadment and the amendment and placing reliance on Order 1 Rule
10(4) allowed the amendment in the reliefs in addition to the impleadment.
45. Thus, the writ petitioner was even otherwise obliged to amend the
writ petition in view of the fact that the six successor-in-interest entities
when Delhi Vidyut Board was unbundled were impleaded as respondents
vide order dated September 05, 2011 when CM No.734/2011 filed by the
Government of NCT of Delhi was allowed. Not having done so might have
given cause for the six companies to contend that though they have been
made parties, the pleadings in the writ petition do not make out a sufficient
case against them. Alternatively, if the case against the six companies was
argued on the existing pleadings, it could have been attacked on the ground
that the arguments are outside the pleadings. Looked at from any angle, it
was imperative for the petitioner to suitably amend its petition so that the
newly impleaded parties were made aware of the case they have to meet.
46. It may be true that the writ petitioner opposed the application filed by
the Government of NCT of Delhi seeking impleadment of the six successor-
in-interest of the Delhi Vidyut Board by taking a stand that it was claiming a
relief only against the Government of NCT of Delhi, but that would be a
legal stand ill-advisedly taken on wrong legal advise given by the counsel,
and it is trite that a party would not be bound by a wrong legal advise given
by the counsel as held in the decision reported as 157 (2009) DLT 267
Purchasing Management International Vs. Rajat Pandhi & Anr.
LPA No.811/2014 & conn. matters Page 22 of 29
47. In the decision reported as (2002) 3 SCC 605 in Fritiz T.M. Clement
& Anr. Vs. Sudhakaran Nadar, the Supreme Court held that where the plaint
was rather cryptic and lacking in relevant particulars, though the basic case
had been set out, it is apparent that the plaint has been drafted causally and
without care, for which the party should not be penalized.
48. With respect to the nature of the pleadings sought to be incorporated
post amendment, we find that the amendments made are of two-fold nature :
firstly, to amplify the averments made in the writ petition and secondly, to
add subsequent facts and events. It is settled law that in both cases,
amendments ought to be normally allowed.
49. In the decision reported as (2007) 6 SCC 737 Ramchandra Sakharam
Mahajan Vs. Damodar Trimbak Tanksale it was held that where an
amendment sought for would enable the Court to pin pointedly consider the
real dispute between the parties and would enable it to render a decision
more satisfactorily to its conscience, it ought to be allowed, even if belated.
To the same effect is the law declared in the decision reported as (2002) 5
SCC 175 Jayanti Roy Vs. Dass Estate Pvt. Ltd. , where the Supreme Court,
setting aside the decision of the High Court dismissing a revision petition
filed against the order passed by the Trial Court disallowing an application
to amend the pleadings, observed that where the appellant sought to explain
the nature of her possession and occupation by way of the amendment, the
same ought to have been allowed.
50. The well settled principles mentioned above were elucidated by the
Supreme Court in the decision reported as (2006) 6 SCC 498 Baldev Singh
Vs. Manohar Singh in the following words:
LPA No.811/2014 & conn. matters Page 23 of 29
“8. It is well settled by various decisions of this Court as well as
the High Courts in India that Courts should be extremely
liberal in granting the prayer for amendment of pleadings
unless serious injustice or irreparable loss is caused to the
other side. In this connection, reference can be made to a
decision of the Privy Council in Ma Shwe Mya v. Maung Mo
AIR 1922 PC 249 in which the Privy Council observed:
All rules of courts are nothing but provisions intended to secure
the proper administration of justice and it is, therefore,
essential that they should be made to serve and be subordinate
to that purpose, so that full powers of amendment must be
enjoyed and should always be liberally exercised, but
nonetheless no power has yet been given to enable one distinct
cause of action to be substituted for another, nor to change by
means of amendment, the subject-matter of the suit.
8. Keeping this principle in mind, let us now consider the
provisions relating to amendment of pleadings. Order 6, Rule
17 of the Code of Civil Procedure deals with amendment of
pleadings which provides that the Court may at any stage of the
proceedings allow either party to alter or amend his pleadings
in such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose
of determining the real questions in controversy between the
parties. A bare perusal of this provision, it is pellucid that
Order 6 Rule 17 of the Code of Civil Procedure consists of two
parts. The first part is that the Court may at any stage of the
proceedings allow either party to amend his pleadings and the
second part is that such amendment shall he made for the
purpose of determining the real controversies raised between
the parties. Therefore, in view of the provisions made under
Order 6, Rule 17 of the Code of Civil Procedure it cannot be
doubted that wide power and unfettered discretion has been
conferred on the Court to allow amendment of the pleadings to
a party in such manner and on such terms as it appears to the
Court just and proper. While dealing with the prayer for
amendment, it would also be necessary to keep in mind that the
Court shall allow amendment of pleadings if it finds that delay
LPA No.811/2014 & conn. matters Page 24 of 29
% Judgment Reserved on : January 08, 2015
Judgment Pronounced on : January 27, 2015
+ LPA 811/2014
TATA POWER DELHI DISTRIBUTION LTD ..... Appellant
Represented by: Mr.A.S.Chandhiok, Sr. Advocate
instructed by Mr.Anupam Varma,
Mr. Nikhil Sharma & Mr. Rahul
Kinra, Advocates
versus
DELHI STATE ELECTRICITY
WORKERS UNION & ORS ..... Respondents
Represented by: Mr.Vedanta Verma, Advocate for R-1
Ms.Meenakshi Midha, Advocate with
Mr.Siddhartha Nagpal, Advocate for
R-2
Ms.Zubeda Begum, Advocate for
Pension Trust/R-3
LPA 812/2014
BSES YAMUNA POWER LTD ..... Appellant
Represented by: Mr.Sandeep Sethi, Sr. Advocate
instructed by Mr.Anupam Varma,
Mr. Nikhil Sharma & Mr. Rahul
Kinra, Advocates
versus
DELHI STATE ELECTRICITY
WORKERS UNION & ORS ..... Respondents
Represented by: Mr.Vedanta Verma, Advocate for R-1
Ms.Meenakshi Midha, Advocate with
Mr.Siddhartha Nagpal, Advocate for
R-2
Ms.Zubeda Begum, Advocate for
LPA No.811/2014 & conn. matters Page 1 of 29
Pension Trust/R-3
LPA 813/2014
BSES RAJDHANI POWER LTD ..... Appellant
Represented by: Mr.Sandeep Sethi, Sr. Advocate
instructed by Mr.Anupam Varma,
Mr. Nikhil Sharma & Mr. Rahul
Kinra, Advocates
versus
DELHI STATE ELECTRICITY
WORKERS UNION & ORS ..... Respondents
Represented by: Mr.Vedanta Verma, Advocate for R-1
Ms.Meenakshi Midha, Advocate with
Mr.Siddhartha Nagpal, Advocate for
R-2
Ms.Zubeda Begum, Advocate for
Pension Trust/R-3
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. CM No.14539/2013 filed by the first respondent who was the writ
petitioner of W.P.(C) No.1698/2010, invoking the provisions of Order VI
Rule 17 of the Code of Civil Procedure, and praying that it be permitted to
amend the writ petition has been allowed by the learned Single Judge vide
impugned order dated May 20, 2014. The appellants in the three appeals
who were respondents No.3 to 5 in the writ petition have filed the three
captioned appeals laying a challenge to the order dated May 20, 2014.
2. The principal grievance of the appellants is that the impugned order is
perfunctory and does not give the reasons for the conclusions arrived at.
LPA No.811/2014 & conn. matters Page 2 of 29
The conclusion arrived is that the amendment sought for amplify the
averments already made in the writ petition and also took into account
subsequent facts and that the cause of action embedded in the tripartite
agreement dated October 28, 2000 is not altered. The other conclusion is
that a fresh writ petition would be maintainable with reference to the
pleadings sought to be incorporated, post amendment, to the writ petition.
On facts, appellants contended that a new cause of action was sought to be
introduced by way of the proposed amendments and reliefs were claimed in
relation thereto which were barred by limitation.
3. It is trite that conclusions need to be supported with reasons and since
learned counsel for the parties were permitted to argue on the merits of the
application for amendment filed by the first respondent, we have taken upon
ourselves the task of adjudicating CM No.14539/2013 after giving reasons
for our conclusion.
4. As would be required, as the take of point while deciding an
application seeking permission of the Court to amend a writ petition, we
identify the take of point: and the same has to be the cause pleaded in the
writ petition as filed. Thereafter, to note the amendments sought for and
then decide whether the amendments are necessary for the purpose of
determining the real questions in controversy between the parties. The
reason being that Order VI Rule 17 of the Code of Civil Procedure
empowers a Court to permit either party to alter or amend her pleadings in
such manner and on such terms as may be just, and mandates that all such
amendments shall be permitted to be made that may be necessary for
purpose of determining the real questions in controversy between the
LPA No.811/2014 & conn. matters Page 3 of 29
parties. Lastly to see whether the proposed amendments seek to introduce a
new cause of action which was barred by limitation.
5. The first respondent in the appeals before us was the writ petitioner
and is a registered and recognized trade union representing the cause of its
members who were the erstwhile employees of the erstwhile Delhi
Electricity Supply Undertaking which was later on constituted into a
statutory board called the Delhi Vidyut Board. When the writ petition was
filed only two respondents were impleaded in the writ petition, being : (i)
Government of NCT of Delhi (respondent No.1), and (ii) Delhi Vidyut
Board Employees Terminal Benefit Fund (respondent No.2).
6. Case pleaded in the writ petition by the writ petitioner is that pursuant
to Sections 14 and 15 of the Delhi Electricity Reforms Act, 2000, the Delhi
Vidyut Board was unbundled and reorganized. The respondent No.1
notified a transfer scheme in exercise of its power under Section 15 read
with Section 16 and Section 60 of the Delhi Electricity Reforms Act, 2000
compulsorily transferring the employees of the Delhi Vidyut Board to
corporations/successor companies. To allay the fear of unbundling of Delhi
Vidyut Board into separate companies a tripartite agreement dated October
28, 2000 was executed between the writ petitioner and the first respondent
under which the benefit of existing service conditions were guaranteed to
the transferred employees, which agreement was reflected in Rule 6(1) of
the Transfer Scheme Rules. As per the tripartite agreement the first
respondent was to create a pension fund in the form of a trust and this gave
birth to the respondent No.2 in the writ petition. The mandate of Section 16
of the Delhi Electricity Reforms Act, 2000 was reiterated in clause 3 of the
tripartite agreement. After respondent No.2 was incorporated, to give effect
LPA No.811/2014 & conn. matters Page 4 of 29
to the tripartite agreement and the mandate of law, a corpus of 1329 crores
`
was advised by the consultant: SBI Caps for purpose of providing terminal
and retiral benefits to the employees of erstwhile Delhi Vidyut Board who
got compulsorily transferred to the successor companies when the Delhi
Vidyut Board was unbundled. The amount of the corpus fund advised to be
created by SBI Caps was based on the actuarial valuation carried out by
M/s.Charan Gupta, an Actuarial Consultancy Service. Under the tripartite
agreement the first respondent was obliged to discharge the pension liability
of the employees of the Delhi Vidyut Board by paying a lump sum onetime
payment to the pension fund so that from the fund pension, service gratuity
and retirement gratuity could be paid to the employees who would
superannuate under the transferee companies in due course of time.
7. That the trust deed under which respondent No.2 was created
stipulates that the trustees shall arrange for an actuarial valuation of the fund
every year by a qualified actuary to determine the solvency of the fund. A
Board of Trustees was appointed by the Lt.Governor to manage the
respondent No.2-fund.
8. Fearing that the shortfall in the corpus of the pension fund may result
in the employees of the erstwhile Delhi Vidyut Board, who was transferred
to the successor companies, may not receive the terminal benefits, the writ
petitioner filed W.P.(C) No.5040/2002 praying that the corpus of the fund
should be enhanced so that the employees receive the terminal benefits. The
writ petition was disposed of on September 16, 2002 in view of the
assurance given by the first respondent that it would guarantee
augmentation in the fund if at any stage there was a shortfall therein.
LPA No.811/2014 & conn. matters Page 5 of 29
9. At a meeting held on June 25, 2003, the trustees of the second
respondent decided to go for an actuarial valuation of the fund, for which
M/s.Ashok Charan, who had done the earlier actuarial valuation was
entrusted with the task to submit a valuation report in respect of the
liabilities of the fund as on December 30, 2003. The report was submitted
which was considered by the trustees of the fund on May 15, 2004 as also
on July 28, 2004. That the second respondent took a decision for a second
opinion to be furnished and accordingly appointed Mr.M.L.Sondhi, an
actuary consultant, who estimated liabilities of the fund as on July 01, 2002
and April 01, 2007 as per a report dated September 13, 2007; bringing out
that as of July, 2002 the under funded liabilities were to the extent of
` 1,253.54 crores. The trustees met on January 17, 2008 and examined the
report to understand the difference between the amount indicated as the
liability of the fund by M/s.Ashok Charan and Mr.M.L.Sondhi. The reason
why the report submitted by Sh.M.L.Sondhi should be accepted were
pleaded and it was highlighted that the respondent No.1 had guaranteed
payment to meet any shortfall and thus it was prayed that a mandamus
should be issued to the Government of NCT of Delhi to meet the shortfall in
the corpus of the fund.
10. From a perusal of the pleadings in the writ petition we find that a
passing reference has been made in paragraph 5, to Rule 6 of the Transfer
Scheme. We simply highlight at this stage that the reference is to Rule 6 of
the Delhi Electricity Reform (Transfer Scheme) Rules, 2001.
11. In the writ petition, as noted above, only the Government of NCT of
Delhi and the Delhi Vidyut Board Employees Terminal Benefit Fund, 2002
were impleaded as the sole respondents, being respondent No.1 and
LPA No.811/2014 & conn. matters Page 6 of 29
respondent No.2 respectively. The appellants of the three appeals: (i) Tata
Power Delhi Distribution Ltd., (ii) BSES Yamuna Power Ltd., and (iii)
BSES Rajdhani Power Ltd. were not impleaded as respondents in the writ
petition.
12. The Government of NCT of Delhi filed CM No.734/2011 in the writ
petition, invoking the provisions of Order I Rule 10 of the Code of Civil
Procedure highlighting that if the writ petitioner succeeded, the three power
companies would be adversely affected, and having not been impleaded as
respondents, would entail a dismissal of the writ petition, and thus it was
desirable to implead the three as respondents. It was pleaded that as per the
Delhi Electricity Reforms Act, 2000, the Delhi Electricity Reforms
(Transfer Scheme) Rules, 2001 and the tripartite agreement, the successor
companies of Delhi Vidyut Board were liable to make contribution to the
fund even for the past period. It was pleaded that in the decision reported as
2010 (IV) SCALE 546 K.R.Jain Vs. GNCTD & Ors. , the Supreme Court
held on May 03, 2010, that the transferee companies on unbundling of the
Delhi Vidyut Board were liable to contribute to the fund.
13. The writ petitioner was advised by the counsel to oppose the
application, pleading that the scope of the writ petition was restricted to the
short funding by the Government of NCT Delhi towards the actuarial
valuation and thus it was pleaded by the writ petitioner that the wider issue
projected by the Government of NCT Delhi as arising for consideration in
the writ petition was not arising.
14. CM No.734/2011 was allowed on September 05, 2011, clarifying that
the stands of the Government of NCT Delhi and the writ petitioner qua
impleadment of : (i) Tata Power Delhi Distribution Ltd., (ii) BSES Yamuna
LPA No.811/2014 & conn. matters Page 7 of 29
Power Ltd., and (iii) BSES Rajdhani Power Ltd., was left open qua the
scope of the writ petition. The three companies distributing electricity in
Delhi were impleaded as respondent Nos.3 to 5. Three more companies
named Delhi Transco Ltd., Genco (Indraprastha Power Generation
Company) and DPCL (Delhi Power Company Ltd.) were impleaded as
respondents No.6 to 8.
15. CM No.14539/2013 was filed by the writ petitioner thereafter praying
to the Court that it may be permitted to insert paras 3A and 3B, after
existing paragraph 3 of the writ petition; substitute existing paragraph 4 as
proposed to be substituted; insert paragraph 4a and 4b thereafter; insert
paragraphs 5A, 6A, 7A, 9A and 19A after existing paragraphs 5, 6, 7, 9 and
19 respectively; and after existing paragraph 24 insert paragraphs 24A to
24W. It was further prayed that after the existing grounds, grounds h to n as
proposed may be permitted to be added and existing prayer (a) be
substituted as proposed i.e. mandamus may be issued to respondents No.3 to
7 to fund the respondent No.2-fund.
16. A pen profile of the proposed amendments may now be drawn up.
17. Expanding upon paragraph 3 of the existing writ petition where it is
simply pleaded that under the Delhi Electricity Reforms Act, 2000, the
Delhi Vidyut Board was unbundled into statutory corporations, in proposed
paragraph 3A sought to be inserted, Section 16 of the Delhi Electricity
Reforms Act, 2000 has been sought to be pleaded by reproducing the same.
The purpose is to focus the attention of the reader that as per Section 16, the
transfer of the personnel of the Delhi Vidyut Board under a transfer scheme
to a transferee company would be with the vesting of the properties as also
rights and liabilities in the company as per the transfer scheme. In the
LPA No.811/2014 & conn. matters Page 8 of 29
proposed to be inserted paragraph 3B, it is sought to be pleaded that to give
effect to the Delhi Electricity Reforms Act, 2000, the first step was a
Request for Qualification Documents for privatization of electricity in Delhi
to be prepared, giving the status of the Delhi Vidyut Board and the manner
of its privatization, which included transfer of past, present and future
liabilities.
18. In the existing paragraph 4 of the writ petition where it is pleaded
that a transfer scheme was notified in terms of Sections 15, 16 and 60 of the
Delhi Electricity Reforms Act, 2000, the proposed to be changed paragraph
has pleadings to the effect that the transfer scheme envisaged by the said
Sections was given teeth statutorily in the form of the Delhi Electricity
Reforms (Transfer Scheme) Rules, 2001, and of which Rules, Rule 6(8) and
6(9) were proposed to be pleaded by a verbatim reproduction thereof, to
highlight that in all statutory schemes and employment related matters,
which included terminal benefits, the relevant transferee shall stand
substituted for the Delhi Vidyut Board in relation to the services of the
personnel statutorily transferred to the transferee and that the Government
of NCT of Delhi shall make appropriate arrangements as regards the
funding to be made so that the existing pensioners are paid the dues and so
are future pensioners. In the proposed to be incorporated paras 4a and 4b, it
is sought to be pleaded that after the selection process of private bidders was
completed a shareholder’s agreement was executed with private companies,
enjoining upon the successor companies to adhere to the provisions of the
transfer scheme with further pleading that Delhi Vidyut Board was
unbundled into six companies; being : (i) Discom 1 (BSES Yamuna Power
Ltd.), (ii) Discom 2 (BSES Rajdhani Power Ltd.), (iii) Discom 3 (TATA
LPA No.811/2014 & conn. matters Page 9 of 29
Power Delhi Distribution Ltd.), (iv) Transco (Delhi Transco Ltd.), (v)
Genco (Indraprastha Power Generation Co.Ltd.), and (vi) DPCL (Delhi
Power Company Ltd.). It is further pleaded that whereas DPCL holds 49%
shares in Discom 1, Discom 2 and Discom 3 respectively, it holds 100%
shares in Genco and Transco.
19. After the existing paragraph 5, wherein the tripartite agreement
dated August 28, 2010 has been pleaded and a brief reference has been
made to Rule 6 of the Delhi Electricity Reform (Transfers Scheme) Rules,
2001, and Clause 3(d) of the tripartite agreement has been highlighted to
bring home the point that the Government of NCT of Delhi was obliged to
make good the shortfall in the pension fund, in the proposed to be added
paragraphs 5A, the pleadings are that the pension fund was created as a part
of the power reform mechanism envisaged under the Delhi Electricity
Reform Act, 2000 and the Delhi Electricity Reform (Transfers Scheme)
Rules, 2001 and that the scheme of the Act of unbundling required assets
as well as liabilities, actual and contingent, existing on the date of transfer
to vests in the successor companies.
20. In the existing paragraph 6 of the writ petition, the mandate of Section
16 of the Delhi Electricity Reform Act 2000 and that of the tripartite
agreement has been pleaded, and in the proposed to be inserted paragraph
6A, pleadings concerning the applicability and the mandate of law enshrined
in Rule 6(8) and Rule 6(9) of the Delhi Electricity Reform (Transfer
Scheme) Rules, 2001 are sought to be incorporated.
21. Existing pleadings in paragraph 7 of the writ petition are concerning
the steps taken in terms of the tripartite agreement to appoint a consultant
and create a corpus of the pension fund. Proposed to be inserted paragraph
LPA No.811/2014 & conn. matters Page 10 of 29
7A seeks to introduce the pleading emanating from Rule 6(8) of the Delhi
Electricity Reform (Transfer Scheme) Rules, 2001 concerning the liability
of the successor companies. Interlinked pleadings qua the interplay of
clause 3(d) (4) of the Tripartite Agreement are sought to be incorporated.
22. Existing para 9 of the writ petition contains pleadings regarding
obligation of the first respondent, under the tripartite agreement, to pay a
lump sum one-time payment in the pension fund, and the proposed to be
added paragraph 9A seeks to plead that while creating the corpus certain
expenditure such as medical reimbursement and LTC payments to the
retired employees was not factored in.
23. The proposed to be inserted paragraph 19A is to make further
pleadings with respect to the actuarial valuations as per the report dated
September 13, 2007 in respect of which pleadings have been made in the
existing paragraph 17 of the writ petition.
24. In the proposed to be inserted paragraph 24A to 24W, the
amendments are that since the three Discoms have already been impleaded
as respondents, the amounts which were claimed from them by the
Government as per the various letters annexed as Annexure P-11
collectively are required to be paid by the companies to the fund. Pleadings
are sought to be incorporated with respect to the decisions taken by the
regulatory commission while fixing the tariff and factoring therein the
liability of the three Discoms to contribute to the pension fund. Extracts
from the tariff orders are sought to be pleaded verbatim.
25. As noted above, mirroring the further pleadings grounds h to n are
sought to be incorporated and existing clause prayer (a) sought to be
substituted as prayed for i.e. the mandamus to be issued to respondent
LPA No.811/2014 & conn. matters Page 11 of 29
No.1 and respondents No.3 to 7 to jointly and severely fund the second
respondent as per the latest actuary valuation.
26. In the writ petition the pleadings would evince that the case of the
writ petitioner is that a decision was taken to privatize the generation,
transmission and distribution of electricity in Delhi and for which the Delhi
Electric Reforms Act, 2000 was promulgated. A reference has been made
to various Sections of the Delhi Electric Reforms Act, 2000 to plead that the
existing Delhi Vidyut Board, which hitherto fore was discharging the
statutory obligation of generating, transmitting and distributing electricity in
Delhi was to be wound up by the process of disinvestment and companies
would take over the generation, transmission and distribution of electricity
in Delhi. The statutory provisions regulated the transfer schemes to be
framed concerning reconstruction and mandated that the scheme would
specifically deal with the rights and liabilities comprised in the new
companies which would be formed. The writ petition has heavily relied
upon Section 15 and Section 16 of the Delhi Electric Reforms Act, 2000 and
relevant would it be for us to note sub-Sections 3, 6, 7 and 9 of Section 15
and sub-Section 1 and sub-Section 2 of Section 16. They read as under:-
“15(3 ) Such of the rights and powers to be exercised by the Board
under the Electricity (Supply) Act, 1948 (Central Act 54 of 1948),
as the government may, by notification in the official gazette,
specify, shall be exercisable by a company or companies
established as the case may be, under Section 14, for the purpose
of discharge of the functions and duties with which it is entrusted.
15(6) A transfer scheme may -
LPA No.811/2014 & conn. matters Page 12 of 29
(a) provide for the formation of subsidiaries, joint venture,
companies or other schemes of divisions, amalgamation,
merger, reconstruction or arrangements;
(b) define the property, interest in property, rights and
liabilities to be allocated -
(i) by specifying or describing the property, rights and
liabilities in question,
(ii) by referring to all the property, interest in property,
rights and liabilities comprised in a specified part of the
transferor's undertaking, or
(iii) partly in one way and partly in the other:
Provided that the property, interest in property, rights and
liabilities shall be subject to such further transfer as the
government may specify;
(c) provide that any rights, or liabilities specified or described
in the scheme shall be enforceable by or against the
transferor or the transferee;
(d) impose on any licensee an obligation to enter into such
written agreements with, or execute such other instruments in
favour of any other subsequent licensee as may be specified in
the scheme;
(e) make such supplemental, incidental and consequential
provisions as the transferor licensee considers appropriate
including provision specifying the order in which any transfer
or transaction is to be regarded as taking effect;
(f) provide that the transfer shall be provisional subject to the
provisions of Section 18.
15(7) All debts and obligations incurred, all contracts entered into
and all matters and things done by, with or for the Board, or a
company or companies established as the case may be, under
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Section 14 or generating company or distribution company or
companies before a transfer scheme becomes effective shall, to the
extent specified in the relevant transfer scheme, be deemed to have
been incurred, entered into or done by, with or for the government
or the transferee and all suits or other legal proceedings instituted
by or against the Board or transferor, as the case may be, may be
continued or instituted by or against the government or concerned
transferee, as the case may be.
15(9) The Board shall cease to exist with the transfer of functions
and duties specified and with the transfer of assets as on the
effective date.
x x x
(1) The government may by a transfer scheme provide for the
transfer of the personnel from the Board to a company or
companies established as the case may be, under Section 14 and
distribution companies (hereinafter referred to as "transferee
company or companies") on the vesting of properties, rights and
liabilities in a company or companies established, as the case may
be, under Section 14 or the distribution companies.
(2) Upon such transfers the personnel shall hold office in the
transferee company on terms and conditions that may be specified
in the transfer scheme subject, however, to the following, namely:
(a) that the terms and conditions of the service applicable to
them in the transferee company shall not in any way, be less
favourable than or inferior to those applicable to them
immediately before the transfer;
(b) that the personnel shall have continuity of service in all
respects; and
(c) that the benefits of service accrued before the transfer
shall be fully recognized and taken in account for all
purposes including the payment of any and all terminal
benefits.”
LPA No.811/2014 & conn. matters Page 14 of 29
27. In the writ petition a passing reference has been made to the Delhi
Electricity Reforms (Transfer Scheme) Rules, 2001 with respect to the
pleading that the said Rules were to give flesh and blood to the skeleton
structure provided by the Delhi Electricity Reforms Act, 2000. A brief
reference has been made to Rule 6.
28. Relevant would it be for us to highlight clauses b, c, h and k of Rule
2, sub-Rule 2 of Rule 3 and sub-Rule 8 and 9 of Rule 6 of the Rules, which
read as under:-
“(b) "assets" includes all rights, interests and claims of whatever
nature as well as block or blocks of assets of the Delhi Vidyut
Board;
(c) "Board" means the Delhi Vidyut Board constituted under
Section 5 of the Electricity (Supply) Act, 1958 (54 of 1948);
(h) "DISCOMS" means and includes DISCOM 1, DISCOM 2 and
DISCOM 3 collectively.
(k) "liabilities" include all liabilities, debts, duties, obligations
and other outgoings including contingent liabilities, statutory
liabilities and government levies of whatever nature, which may
arise in regard to dealings before the date of the transfer in
respect of the specified undertakings;
x x x
3(2) Nothing in Sub-rule (1) shall apply to rights,
responsibilities and obligations in respect of the personnel and
personnel related mattes, which have been dealt in the manner
provided under Rule 6.
x x x
6(8) Subject to Sub-rule (9) below, in respect of all statutory and
other schemes and employment related matters, including the
LPA No.811/2014 & conn. matters Page 15 of 29
provident fund, gratuity fund, pension and any superannuation
fund or special fund created or existing for the benefit of the
personnel and the existing pensioners, the relevant transferee
shall stand substituted for the Board for all purposes and all the
rights, powers and obligations of the Board in relation to any and
all such matters shall become those of such transferee and the
services of the personnel shall be treated as having been
continuous for the purpose of the application of this sub-rule.
6(9) The government shall make appropriate arrangements as
provided in the tripartite agreements in regard to the funding of
the terminal benefits to the extent it is unfunded on the date of the
transfer from the Board. Till such arrangements are made, the
payment falling due to the existing pensioners shall be made by
the TRANSCO, subject to appropriate adjustments with other
transferees.
For the purpose of this sub-rule, the term -
(a) "existing pensioners" mean all the persons eligible for
the pension as on the date of the transfer from the Board
and shall include family members of the personnel as per
the applicable scheme; and
(b) "terminal benefits" mean the gratuity, pension, dearness
and other terminal benefits to the personnel and existing
pensioners.”
29. Meaningfully read, the pleadings in the writ petition bring out that
when the Government was contemplating unbundling of the Delhi Vidyut
Board for handing over the generation, transmission and distribution of
electricity to companies, the erstwhile employees of the Delhi Vidyut Board
expressed apprehension and reservation regarding their service conditions
and therefore the Union was taken into confidence. The assurance of
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service conditions being protected was reduced into writing when a tripartite
agreement dated October 28, 2000 was executed.
30. Focusing in the writ petition that the Government of NCT of Delhi
had undertaken to fund any shortfall in the pension fund which was created,
there is a passing reference to the proportionate burden being passed on to
the successor companies and for which we may highlight that in paragraph
20 of the writ petition it has been specifically pleaded that though the
responsibility of the corporate entities and the trust, the Government of NCT
of Delhi has specifically guaranteed that terminal benefits shall be paid to
the employees of the erstwhile Delhi Vidyut Board.
31. If we focus on the pleadings of paragraph 19 of the writ petition it
would be apparent that there are pleadings concerning events up to the year
2008 with reference to actuarial valuation reports concerning the liabilities
concerning terminal benefits payable to the employees of the erstwhile
Delhi Vidyut Board and the matter being under consideration as to which
actuarial valuation report needs to be accepted and what amount needs to be
quantified to augment the fund.
32. The proposed amendments seek to expand upon the somewhat brief
pleadings in the writ petition to bring out that after the Delhi Electric
Reforms Act, 2000 and the Delhi Electricity Reforms (Transfer Scheme)
Rules, 2001 were promulgated, as a first step of privatization, the Request
for Qualification (RFQ) documents for privatization of electricity
distribution in Delhi were floated, giving in detail the status of the Delhi
Vidyut Board, and the manner of privatization thereof, wherein it was
specifically brought to the notice of the bidders that Delhi Vidyut Board was
being offered to private companies as a going concern on business valuation
LPA No.811/2014 & conn. matters Page 17 of 29
method, transferring all the past, present and future liabilities including that
of existing employees as well as the retirees. The transfer scheme was
notified on November 21, 2001, under which the distribution companies,
generation, transmission and holding companies were identified, and as
regards distribution 3: Discom 1, Discom 2 and Discom 3 were notified.
33. There are various schedules attached to the scheme 2001 and we find
that the distribution undertaking, its assets, liabilities and proceedings
concerning the distribution are specified in Part III in Schedule H.
34. Whilst it may be true that the three Discoms as also Genco, Transco
and the holding company have not been impleaded as respondents, but there
are specific averments in paragraph 20, as noted above, that the said
transferee company have to share the burden, notwithstanding the
Government of NCT of Delhi standing guarantee to make good any shortfall
in the fund. In other words there are brief pleadings in the writ petition that
the principal liability is that of the six transferee companies which came into
being when Delhi Vidyut Board was unbundled.
35. It is apparent that this was the foundation when CM No.734/2011 was
allowed by the learned Single Judge, without giving reasons as to why the
application was allowed, vide order dated September 05, 2011 impleading
the six companies which took over the assets and liabilities of Delhi Vidyut
Board on it being unbundled, as per the schedule of the scheme of
unbundling were impleaded.
36. The decision to implead the six successor companies as respondents
was premised on the language, though no expressly stated in the order, of
Order I Rule 10 (2) of the Code of Civil Procedure which enjoins upon a
Court to implead a party in a suit whose presence before the Court would be
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necessary in order to enable the Court to effectually and completely
adjudicate upon and settle all the questions involved in the suit , and for
which determination the Court had kept in mind the interest of the
successor-in-interest companies with respect to the pleadings of the existing
parties; and the interest being of a kind which required their presence.
37. Why the three appellants and three other companies which were the
successor-in-interest of the Delhi Vidyut Board were impleaded as
respondents was that keeping in view the pleadings in the writ petition filed
by the first respondent it was imperative that they should be impleaded as
respondents inasmuch as if the mandamus was issued in the writ petition as
prayed for the right and interest of the said six companies was likely to be
affected inasmuch as the second respondent could have called upon the six
companies to make proportionate contributions to augment the fund. The
Government of NCT of Delhi which had guaranteed to make good any
shortfall in the fund was obviously interested that the said six companies
should be impleaded as respondents, and we find that in the application filed
by the Government of NCT of Delhi to seek impleadment of the six
companies it was pleaded that the principal liability to make good any
shortfall in the fund is that of the six successor companies when Delhi
Vidyut Board was unbundled. The importance of the amendments prayed
for has thus to be understood with reference to the law to implead a party in
a pending litigation keeping in view the possibility of the interest of the
party concerned which may be effected by a decision taken, and we simply
highlight that it would then become imperative for the Court to ensure that
parties amend their respective pleadings so as to enable the Court to
LPA No.811/2014 & conn. matters Page 19 of 29
effectively settle all the issues which arise for consideration and affecting
the right or interest of the parties.
38. It also must not be lost sight of that the six companies were
impleaded way back in the year 2011, under an order which was not
appealed against and hence has attained finality.
39. That apart, as we have already highlighted thrice above, in paragraph
20 of the writ petition there are pleadings that to make good any shortfall in
the corpus of the second respondent-fund the responsibility was that of the
six successor-in-interest companies to make good the shortfall in the fund.
40. It would have been a quixotic situation if the six successor-in-interest
companies were impleaded as respondents but without clarificatory
pleadings post their impleadment and thus to remove the dreamy situation
which had come into being, the dawn of awakening warranting the sun to
rise by illuminating, so that the six newly impleaded respondents could be
clearly shown, what issues of law and fact were in focus requiring a
response from them. It is trite that purpose of pleadings is to bring out the
stand of the parties with clarity so that each knows the stand of the other and
is not taken by surprise as held in the decision reported as (2008)17 SCC
491 Bachhaj Nahar vs. Nilima Mandal & Anr. ; (1998) 8 SCC 315 D.M.
Deshpande & Ors. Vs. Janardhan Kashinath Kadam and (1987) 2 SCC 555
Ram Sarup Gupta Vs. Bishun Narain Inter College & Anr.
41. While discussing the importance of stating clear pleadings with
regard to any party in a litigation, the Supreme Court in Bachhaj Nahar ’s
case (supra) held as follows:
“12. The object and purpose of pleadings and issues is to
ensure that the litigants come to trial with all issues clearly
defined and to prevent cases being expanded or grounds being
LPA No.811/2014 & conn. matters Page 20 of 29
shifted during trial. Its object is also to ensure that each side is
fully alive to the questions that are likely to be raised or
considered so that they may have an opportunity of placing the
relevant evidence appropriate to the issues before the court for
its consideration. This court has repeatedly held that the
pleadings are meant to be given to each side intimation of the
case of the other so that it be met, to enable courts to determine
what is really at issue between the parties, and to prevent any
deviation from the course which litigation on particular causes
must take.”
42. In addition to the general law of pleadings stated above, the Court has
a duty to ensure that pursuant to an impleadment under Order 1 Rule 10(2),
relevant pleadings stating the case against the newly added parties is
included by way of an amendment by the plaintiff/petitioner under Sub-rule
4 of Rule 10 of Order II of the Code of Civil Procedure, which reads as
under:-
“ Where a defendant is added, the plaint shall, unless the Court
otherwise directs, be amended in such manner as may be
necessary, and amended copies of the summons and of the
plaint shall be served on the new defendant and, if the Court
thinks fit, on the original defendant.”
43. The High Court of Andhra Pradesh had an occasion to render a
decision with respect to Order 1 Rule 10 (4) of the Code of Civil Procedure.
The opinion is reported as 1993 (3) ALT 44 S.V. Krishna Reddy Vs. S.
Mariam Bee.
44. The plaintiff was seeking specific performance of an agreement to
sell against the Defendant No.1, who had entered into a partition with
Defendant No.2 to 4 with respect to the suit property. The plaintiff sought to
add Defendant No.2 to 4 as parties and contended that there cannot be a
LPA No.811/2014 & conn. matters Page 21 of 29
joint family among Muslims and that the partition deed was a sham.
Accordingly, the plaintiff sought amendment of his reliefs in the plaint. The
High Court set aside the order of the Subordinate judge disallowing the
impleadment and the amendment and placing reliance on Order 1 Rule
10(4) allowed the amendment in the reliefs in addition to the impleadment.
45. Thus, the writ petitioner was even otherwise obliged to amend the
writ petition in view of the fact that the six successor-in-interest entities
when Delhi Vidyut Board was unbundled were impleaded as respondents
vide order dated September 05, 2011 when CM No.734/2011 filed by the
Government of NCT of Delhi was allowed. Not having done so might have
given cause for the six companies to contend that though they have been
made parties, the pleadings in the writ petition do not make out a sufficient
case against them. Alternatively, if the case against the six companies was
argued on the existing pleadings, it could have been attacked on the ground
that the arguments are outside the pleadings. Looked at from any angle, it
was imperative for the petitioner to suitably amend its petition so that the
newly impleaded parties were made aware of the case they have to meet.
46. It may be true that the writ petitioner opposed the application filed by
the Government of NCT of Delhi seeking impleadment of the six successor-
in-interest of the Delhi Vidyut Board by taking a stand that it was claiming a
relief only against the Government of NCT of Delhi, but that would be a
legal stand ill-advisedly taken on wrong legal advise given by the counsel,
and it is trite that a party would not be bound by a wrong legal advise given
by the counsel as held in the decision reported as 157 (2009) DLT 267
Purchasing Management International Vs. Rajat Pandhi & Anr.
LPA No.811/2014 & conn. matters Page 22 of 29
47. In the decision reported as (2002) 3 SCC 605 in Fritiz T.M. Clement
& Anr. Vs. Sudhakaran Nadar, the Supreme Court held that where the plaint
was rather cryptic and lacking in relevant particulars, though the basic case
had been set out, it is apparent that the plaint has been drafted causally and
without care, for which the party should not be penalized.
48. With respect to the nature of the pleadings sought to be incorporated
post amendment, we find that the amendments made are of two-fold nature :
firstly, to amplify the averments made in the writ petition and secondly, to
add subsequent facts and events. It is settled law that in both cases,
amendments ought to be normally allowed.
49. In the decision reported as (2007) 6 SCC 737 Ramchandra Sakharam
Mahajan Vs. Damodar Trimbak Tanksale it was held that where an
amendment sought for would enable the Court to pin pointedly consider the
real dispute between the parties and would enable it to render a decision
more satisfactorily to its conscience, it ought to be allowed, even if belated.
To the same effect is the law declared in the decision reported as (2002) 5
SCC 175 Jayanti Roy Vs. Dass Estate Pvt. Ltd. , where the Supreme Court,
setting aside the decision of the High Court dismissing a revision petition
filed against the order passed by the Trial Court disallowing an application
to amend the pleadings, observed that where the appellant sought to explain
the nature of her possession and occupation by way of the amendment, the
same ought to have been allowed.
50. The well settled principles mentioned above were elucidated by the
Supreme Court in the decision reported as (2006) 6 SCC 498 Baldev Singh
Vs. Manohar Singh in the following words:
LPA No.811/2014 & conn. matters Page 23 of 29
“8. It is well settled by various decisions of this Court as well as
the High Courts in India that Courts should be extremely
liberal in granting the prayer for amendment of pleadings
unless serious injustice or irreparable loss is caused to the
other side. In this connection, reference can be made to a
decision of the Privy Council in Ma Shwe Mya v. Maung Mo
AIR 1922 PC 249 in which the Privy Council observed:
All rules of courts are nothing but provisions intended to secure
the proper administration of justice and it is, therefore,
essential that they should be made to serve and be subordinate
to that purpose, so that full powers of amendment must be
enjoyed and should always be liberally exercised, but
nonetheless no power has yet been given to enable one distinct
cause of action to be substituted for another, nor to change by
means of amendment, the subject-matter of the suit.
8. Keeping this principle in mind, let us now consider the
provisions relating to amendment of pleadings. Order 6, Rule
17 of the Code of Civil Procedure deals with amendment of
pleadings which provides that the Court may at any stage of the
proceedings allow either party to alter or amend his pleadings
in such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose
of determining the real questions in controversy between the
parties. A bare perusal of this provision, it is pellucid that
Order 6 Rule 17 of the Code of Civil Procedure consists of two
parts. The first part is that the Court may at any stage of the
proceedings allow either party to amend his pleadings and the
second part is that such amendment shall he made for the
purpose of determining the real controversies raised between
the parties. Therefore, in view of the provisions made under
Order 6, Rule 17 of the Code of Civil Procedure it cannot be
doubted that wide power and unfettered discretion has been
conferred on the Court to allow amendment of the pleadings to
a party in such manner and on such terms as it appears to the
Court just and proper. While dealing with the prayer for
amendment, it would also be necessary to keep in mind that the
Court shall allow amendment of pleadings if it finds that delay
LPA No.811/2014 & conn. matters Page 24 of 29
| in disposal of suit can be avoided and that the suit can be | |
|---|---|
| disposed of expeditiously.” | |
existing pleading, arose as an issue in the decision reported as (1984) 3 SCC
352 Vineet Kumar Vs. Mangal Sen Wadhera . The respondent/plaintiff had
filed a suit for eviction and arrears of rent on the ground that building in
question was not covered under the Rent Control legislation as ‘new
buildings’ were exempted under the Act. The exemption expired during the
pendency of the litigation. The appellant sought to amend the pleadings and
seek benefit of the same. Relying upon an earlier decision reported as
(1975) 1 SCC 770 Pasupuleti Venkateswaralu Vs Motor and General
Traders, the Court observed:
| “15…It is basic to our | processual jurisprudence that the right |
| to relief must be judged to exist as on the date a suitor institutes | |
| the legal proceeding. Equally clear is the principle that | |
| procedure is the handmaid and not the mistress of the judicial | |
| process. If a fact, arising after the lis has come to court and has | |
| a fundamental impact on the right to relief for the manner of | |
| moulding it, if brought diligently to the notice of the tribunal it | |
| cannot blink at it or be blind to events which stultify or render | |
| inept the decretal remedy. Equity justifies bending the rules of | |
| procedure, where no specific provision or fairplay is not | |
| violated, with a view to promote substantial justice-subject of | |
| course to the absence of other disentitling factors or just | |
| circumstances, Nor can we contemplate any limitation on this | |
| power to take note of updated facts to confine it to the trial | |
| Court. If the litigation pends the power exists, absent other | |
| special circumstances repelling resort to that course in law or | |
| justice. Rulings on this point are legion, even as situations for | |
| applications of this equitable rule are myriad. We affirm the | |
| proposition that for making the right or remedy claimed by the | |
| party just and meaningful as also legally and factually in | |
| accord with the current realities the Court can, and in many |
LPA No.811/2014 & conn. matters Page 25 of 29
| cases must, take cautious cognizance of events and | |
|---|---|
| developments subsequent to the institution of the proceeding | |
| provided the rules of fairness to both sides are | scrupulously |
52. The Supreme Court allowed the appellant to take benefit of the
subsequent facts opining that where the amendment does not constitute an
addition of a new cause of action, or raise a new case, but amounts to no
more than adding to the facts already on record, the amendment should be
allowed.
53. It is also no longer res integra that amendments under Order 6 Rule
17 can be allowed ‘at any stage’ as held in the decision reported as (2002) 7
SCC 559 Sampath Kumar Vs. Ayyakannu where a relevant amendment was
allowed even after 11 years of institution of the suit, in order to avoid
multiplicity of suits.
54. There is another important facet that compels us to allow the
amendments sought by the writ petitioner. In adjudicating a writ petition,
strict rules of the Code of Civil Procedure do not apply, only the broad
principles of the provisions enshrined therein are applicable, such as
amendment of pleadings, impleadment of necessary and proper parties, res-
judicata, etc. It is also not gainsaid that the power of the writ court is wide
and discretionary, though of course has to be reasonably exercised. Thus,
where the amendments sought to be made are germane to the issue and
assist in adjudicating on the issues raised, they ought to be allowed. This is
precisely the situation in the present case.
LPA No.811/2014 & conn. matters Page 26 of 29
55. In the decision reported as 1994 (4) AD (Delhi) 221 Scindia Potteries
and Services ltd Vs. Deputy Land and Development Officer it was observed
as follows:
“9. The answer is simple. There is nothing in Article 226 of the
Constitution to preclude a High Court from exercising such
power which avoids if possible, a multiplicity of judicial
proceedings and since a High Court ought not to decide a writ
petition under Article 226 of the Constitution without the
person who would be vitally affected by its judgment being
before it as a respondent, such person may appear at the
hearing or make a prior application and ask for leave to join
the proceedings and when it so happens the Court shall,
notwithstanding Section 141 of the Code and despite there
being no rule of the High Court in that direction, in exercise of
its inherent powers on the analogy of Order 1 Rule 10 of the
Code, and following the general principles of justice proceed to
make him a respondent.”
56. Similarly in the decision reported as 129 (2006) DLT 314 Larsen and
Tourbo Ltd. Vs. UOI, it was held:
“ 8. It is trite that the provisions of CPC do not strictly apply to
the writ proceedings but the principles contained therein are
persuasive and relevant and must be kept in view. Civil suits
are restricted to a determination of the rights of the parties
before the court. Writ proceedings have much wider dimension
since the State or the Authority or the body against which the
Orders are directed, must be seen as having failed in
performing a public function. Almost in every conceivable case
where the State enters in a contract, especially those which
have a commercial content, another citizen or party would be
directly or indirectly affected. What has to be seen in writ
proceeding is whether the rights of the applicants/intervenors
are more likely than not to be directly affected by the outcome.
Learned counsel for the petitioner has soundly contended that it
LPA No.811/2014 & conn. matters Page 27 of 29
is really the interim Order which is adversely touching the
applicant. This is also the stand taken by the learned Counsel
for the state of Orrisa.
9. The legally pragmatic solution, therefore would be to direct
the State Government to process and decide the Neepaz
application for the grant of a mining lease without any
apprehension that such a action would violate the interim
orders of this court. This solution is, however, not acceptable to
the learned Counsel for the Petitioner. If that is so, then there
appears to be no alternative other than impleading Neepaz in
these proceedings.”
57. The same view was echoed by a Division Bench of this Court in the
decision reported as 135 (2006) DLT 414 (DB) Ex.Rect./GD Vinod Kumar
Vs. Union of India & Ors. where the Court held that the provisions of
Section 16-20 CPC would not be applicable to writ jurisdiction strict senso;
writ proceedings are only governed by principles analogous to those
contained in the Code of Civil Procedure.
58. Regarding the contention that the amendments prayed for cannot be
allowed because the cause of action sought to be introduced was time
barred, we leave the issue open for the reason it is trite that a proceeding
against a party would be deemed to be instituted when a party is impleaded
in a pending proceedings and unless directed to be retrospective, and for
which Section 21 of the Limitation Act, 1963 may be referred to. It would
be open to the appellants to take a defence of the bar of limitation, and if
raised it would be open to the writ petitioner to rely upon the decisions
reported as (2008) 13 SCC 213 Kusumam Hotels Pvt. Ltd. Vs. Kerela State
Electricity Board and (2007) 5 SCC 447 Southern Petrochemical Industries
LPA No.811/2014 & conn. matters Page 28 of 29
Co. Ltd. Vs. Electricity Inspector& Etio wherein it was held that statutory
dues are not subject to the law of limitation for recovery. It would be open
to the writ petitioner to plead with reference to the statutory provisions of
the Delhi Electric Reforms Act, 2000 and the Delhi Electricity Reforms
(Transfer Scheme) Rules, 2001 to urge that the dues have a statutory
flavour, and needless to state said issue would be decided by the learned
Single Judge.
59. Accordingly, we dismiss the appeals but without any order as to
costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
JANUARY 27, 2015
mamta
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