JUDGMENT 1. :- The petitioner, five in number, are limited companies incorporated under the Companies Act, 1956. They are subject to control exercised by the promoter group i.e. Balaji Group. Rajasthan State Electricity Board, is a statutory body created by the State Government under the provisions of the Electricity (Supply) Act, 1948 (in short the 'Act'). Rajasthan Rajya Vidyut Nigam Limited i.e. respondent No. 2 is a Corporation established by the State Government under the provisions of the Companies Act, 1956 pursuant to Section 13 of the Rajasthan Power Sector Reforms Act, 1999 which will be hereinafter referred to as the 1999 Act'. Respondents No. 3 to 7 are generation/ distribution/transmission companies promoted and established by the State Government in conformity with and in furtherance to the objects of the 1999 Act. The respondent Nos. 3 to 7 are thus agencies or instrumentalities of the State within the meaning of Article 12 of the Constitution of India and hence, amenable to the writ jurisdiction. Respondent No. 8 is the State Bank of Bikaner and Jaipur. 2. The petitioners have come with the case that the Rajasthan State Electricity Board was facing great financial crisis in the year 1995 and it was not in a position to clear its arrears of railway freight for coal and unable to make advance deposit equal to three weeks' railway freight and ensured timely payment of freight in future and therefore, the Board was being charged 15% surcharge on the freight by the Railways. The railways were moving coal on 'Freight To Pay' basis. The Board was thus loosing roughly Rs. 70 Crores annually towards rebate for want of timely payment. In addition thereto, the Board also owned approximately Rs. 900 Crores towards the dues of National Thermal Power Corporation (NTPC), National Hydle Power Corporation (NHPC), National Power Corporation (NPC) and others. The financial structure was worked out by the Board in consultation with the Syndicators selected on the basis of all India advertisement and the Syndicators were made responsible for arranging the finances from industrial houses. Deliberations were held between the Whole Time Members of the Board. The financial structure was worked out by the Board in consultation with the Syndicators selected on the basis of all India advertisement and the Syndicators were made responsible for arranging the finances from industrial houses. Deliberations were held between the Whole Time Members of the Board. The Syndicators gave the structure for less finances against deferred payment of sale consideration wherein the lender was to retain 40% of the sale price as security deposit for lease and provide 25% of the cost of assets as an up-front payment and balance 35% of the sale price was to be given on deferred payment basis spread-over the next two years. The financing was thus agreed to between the parties for provision of a super liquidity/funding of not more than 25% of the transfer cost of assets at any point of time. It was under the compulsion of the aforesaid circumstances that the Board decided to explore new avenues for raising funds. The Board came with an innovative financial instrument that was being availed by the other corporate bodies including government corporation. The key components of the said instrument were that - (i) all sale and lease back of old assets of the Board; (ii) revaluation of such assets. Under the Income Tax provisions that were then prevalent, the party purchasing such old assets was entitled to avail depreciation thereon at the rate of 25% or at the rate of 100% depending upon the type of assets. The instruments of lease agreement and sales agreement that were to be executed were thus not intended at securing a real sale of the assets or an actual transaction of lease. The transaction, that was actually intended to and entered into between the parties, was neither that of sale and purchase of assets nor that of lease of such old assets to the Board. Neither the petitioners had any interest in the purchase of such assets nor was the Board interested in their sale and the transactions were made in the nature of methodology employed by the parties for implementing the agreed objective of extending finance to the Board against the agreed rate of return, of course, the petitioners' interest was the entitlement to avail depreciation thereon under the Income Tax Act. The agreement arrived at between the parties has provided for extending finances only to the extent of 25% of purchase price. The agreement arrived at between the parties has provided for extending finances only to the extent of 25% of purchase price. In this regard, reference may be made to Board's communications dated 30.9.95 and 29,3.96. The Board entered into two separate sets of agreement for lease of equipments and agreement for sale of equipments and also executed a set of supplemental agreement. Immediately after the execution of the said documents, in terms of the agreement as arrived at between the parties, the petitioners released a sum of Rs. 4,172.71 lacs i.e. Rs. 41,72,71,000/- as per Schedule-C annexed with the writ petition. Besides these transactions, the parties had also intended to enter into the ninth transaction against which the petitioners were to advance a sum of Rs. 135 lacs and the same had been duly done. However, after receiving this payment, the Board neither executed necessary documents relating to the same nor refunded the said amount of Rs. 135 lacs, rather the amount of Rs. 135 lacs was withheld. 3. The first deferred payment instalment was to be released by the petitioners in April, 1996, which on account of general depression in the market, could not be released immediately. The respondent Board, therefore, entered into the fresh transaction on the same terms, with the promoter group M/s. Balaji Hotels and Enterprises Ltd., in April, 1996 for a total value of Rs. 877.46 lacs. 4. Clause 4(d) (vii) as contained in the lease agreement, is set out as under: "4(d) (vii) Lessee has given/will give the Standing Instructions to SBBJ, to transfer the amounts (mentioned in the Annexure 1 to the Standing Instructions) from the Collection Account to the Designated Account and such Standing Instructions shall not be revoked, modified or cancelled without the prior written consent of the Lessor." 5. The Board issued irrevocable instructions to the respondent No. 8 State Bank of Bikaner and Jaipur to debit the Collection Account in pursuance of the aforesaid clause which bears out that the essence of the transaction entered into between the parties was that of fully securing Board's repayment obligations and towards this end, the parties had provided for a third party payment mechanism and the instructions issued to the said third party namely State Bank of Bikaner and Jaipur were couched in irrevocable terms. 6. 6. The respondent Board required the petitioners to make arrangement to the possible extent and the petitioners agreed to arrange for the finances by raising suitable loans from their bankers. Since the bankers were agreeable to advance the funds only against the absolute assignment of the lease rentals receivable by the petitioners, the Board had to confirm to the Bank that the lease rentals to be assigned to them would be released by the Board to the petitioners' bankers on the due dates. The bankers in question were United Commercial Bank and the Bank of Rajasthan Ltd. The complete statement of account was forwarded by the Board to the petitioners on 11.6.97 and 11.10.97 setting out the amount that was due for payment against deferred payment instalments. 7. After the entire amount that was receivable by the Board by way of deferred payment stood received by it, the petitioners called upon the Board to release to them the amounts that were payable to them in the form of lease rentals by way of repayment of the amount advanced by them and the interest accrued thereon. 8. By 30th September, 2001, the total accumulated dues of the petitioners receivable from the respondent Board towards the amount of lease rentals which represented the principal amount financed by the petitioners and the interest accrued thereon amounted to a total sum of Rs. 2884.21 lacs. 9. It is the case of the petitioners that the respondent Board, at one stage, had referred the whole matter to Mr. C.L. Jhanwar, an eminent Chartered Accountant, for his independent opinion in respect of issue relating to the financing in question. Mr. C.L. Jhanwar had been the Auditor of the RSEB for a long period. The matter was examined by Mr. C.L. Jhanwar and it is understood that after a detailed scrutiny, he stated that he had examined this matter along with other Members of the Committee and it was a plain and simple financial transaction where the essence was the liquidity. 10. The Board also made a reference in this matter to the learned Advocate General of the State of Rajasthan. 11. Despite the opinion rendered by the learned Advocate General and Mr. C.L. Jhanwar, Chartered Accountant, the Board did not release any part of 6ie payment due to the petitioners. 12. 10. The Board also made a reference in this matter to the learned Advocate General of the State of Rajasthan. 11. Despite the opinion rendered by the learned Advocate General and Mr. C.L. Jhanwar, Chartered Accountant, the Board did not release any part of 6ie payment due to the petitioners. 12. Faced with the situation, the petitioners had to file this petition with the prayers as under : "(a) to declare the State of Rajasthan, Rajasthan Electricity Board, Rajasthan Rajya Vidyut Utpadan Nigam Ltd., Rajasthan Rajya Vidyut Prasaran Nigam Ltd, Jaipur Discom, Ajmer Discom and the Jodhpur Discom to be liable to pay to the petitioners a total sum of Rs. 2884.21 lacs along with interest thereon @ 20% p.a. computed from the date of filing of this writ petition upto the date of receipt of the said payment. (b) to declare the Rajasthan Power Sector Reforms Act, 1999 and the Rajasthan Power Sector Reforms (Transfer) Scheme, 2000 published pursuant to the Act of 1999 to be unconstitutional. (c) alternatively, to direct the respondents excluding the respondent State Bank of Bikaner and Jaipur to notify to the petitioners as to which of the contracts executed by which of the petitioner companies have developed upon which of the respondent company and as to which of the respondent company is answerable to which of the petitioner company in respect of which of the contract. (d) to direct the respondent authorities to remit to the petitioners the amount of further lease rentals, due from Oct. 2001 amounting to Rs. 86.56 lacs which are to fall due for payment under the lease agreements between Oct., 2001 to August 2006 but, which is by virtue of breaches committed by the respondents due for payment immediately. (e) to direct all the respondent authorities to make available to this Hon'ble Court complete record relating to the transaction referred herein including the books of account showing the manner in which lease rentals that were payable by the respondents to the petitioner companies were wrongfully withheld and have been accounted for in the books of accounts. (f) to direct the respondent State Bank of Bikaner & Jaipur to release to the petitioners forthwith all arrears of lease rentals amounting in all to a sum of Rs. 2884.21, in terms of obligations under the Designated Account. (f) to direct the respondent State Bank of Bikaner & Jaipur to release to the petitioners forthwith all arrears of lease rentals amounting in all to a sum of Rs. 2884.21, in terms of obligations under the Designated Account. (g) any other appropriate order or direction which may be considered just and proper in the facts and circumstances of the case may kindly also be issued in favour of the petitioners." 13. The petition has been opposed and contested by the respondents. 14. The respondent No.1, State of Rajasthan, has filed reply dated 9.1.2000. Respondent Nos. 3 to 7 have filed separate reply on 7.1.2002 and a separate reply has been filed by respondent No. 8, State Bank of Bikaner & Jaipur on 28.11.2001. 15. So far as the relief claimed in clause (b) of the prayer, to declare the Rajasthan Power Sector Reforms Act, 1999 and the Rajasthan Power Sector Reforms (Transfer) Scheme, 2000 published pursuant to the Act of 1999, to be unconstitutional is concerned, we may straightway observe that the Rajasthan Power Sector Reforms Act, 1999 is an Act to provide for the constitution of the Electricity Regulatory Commission, restructuring of the electricity industry by rationalisation of the generation, transmission, distribution and supply of electricity and generally for taking measures conducive to the development and management of the electricity industry in an efficient, economic and competitive manner and for matters connected therewith or incidental thereto. This Act received the assent of the President of India on 28th December, 1999. The legislative competence of the State Assembly to enact such law is clearly established and we find that the petitioners have no case or ground to seek the declaration that the said Act is unconstitutional. A sweeping challenge has been made against the constitutionality of this Act on absolutely vague and bald allegations. 16. Learned Additional Advocate General Shri R.N. Mathur while meeting the meak challenge to the validity of these provisions, has cited before us the following cases: (1) G.B. Mahajan and others v. Jalgaon Municipal Council and others, reported in (1991) 3 SCC 91 Para 22 (2) Reserve Bank of India and others v. Timex Finance and Investment Co. Ltd., and others reported in (1992) 2 SCC 344, Para 31, 36, 39 (3) Nand Lal and another v. State of Haryana and others reported in AIR 1980 SC 2097 . 17. Ltd., and others reported in (1992) 2 SCC 344, Para 31, 36, 39 (3) Nand Lal and another v. State of Haryana and others reported in AIR 1980 SC 2097 . 17. We have considered the challenge to the validity of the Act and the Scheme on the principle laid down in the aforesaid cases and on applying such principles, we are of the considered opinion that the Act or any part thereof cannot be declared to be unconstitutional. The power Sector Reforms (Transfer) Scheme, 2000 also cannot be declared to be unconstitutional and we find that it is a valid Scheme framed by the State of Rajasthan in exercise of powers under the appropriate provision of the 1999 Act and in our opinion, the petitioners have no locus standi to challenge either the 1999 Act or the Scheme. 18. Before we proceed to consider the case of the parties for the purpose of other reliefs claimed in the petition, we may put on record in this order itself that when the matter had come up before the court on 26.2.2002 during the course of arguments, it was suggested to the learned counsel appearing for the parties that if they could agree to get this dispute resolved through alternative disputes resolution system, learned counsel for the petitioners was straightway agreeable to the suggestion but the learned counsel for the respondents wanted time to consult their respective clients. However, the respondents did not agree to the suggestion and therefore, the matter was further heard. 19. The respondents, particularly learned counsel for respondent Nos. 2 to 7, Shri R.K. Agarwal has opposed the petition on the preliminary ground that the writ petition was not at all maintainable and he has submitted that if the petitioners are aggrieved, their grievance is based on the breach of contract and the reliefs claimed by them are akin to money decree and for such reliefs, the writ petition is not maintainable and the petitioners may avail the common law remedy of filing a civil suit. Maintainability of the writ petition in this regard had been opposed with support of the following cases by the respondents: (1) Reserve Bank of India and others v. Timex Finance and Investment Co. Ltd. and others, reported in (1992) 2 SCC 344, Para 31, 36, 39. Maintainability of the writ petition in this regard had been opposed with support of the following cases by the respondents: (1) Reserve Bank of India and others v. Timex Finance and Investment Co. Ltd. and others, reported in (1992) 2 SCC 344, Para 31, 36, 39. (2) Amerendra Kumar v. State of Bihar and others reported in AIR 1993 Patna 112 (3) Andhra Pradesh State Financial Corporation v. M/s. Rama Spinners Private Ltd. and another reported in AIR 1997 AP 415 (4) Haryana Financial Corporation and another v. M/s. Jagdamba Oil Mills & Ann reported in (2002) 1 JT 482 20. Mr. Paras Kuhad, learned counsel for the petitioners, had submitted that in such matters, the plea of breach of contract cannot be set up. It is a case of public law remedy for a dispute inter se between the parties when the contract is with a statutory body or its agencies or instrumentalities. He has cited before us the following cases (1) Punjab State Electricity Board and another v. Ashwani Kumar reported in (1997) 5 SCC 120 Para 8 (2) The D.F.O. South Kheri and others v. Ram Sanehi Singh reported in (1971) 3 SCC 864 (3) Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and others reported in (1974) 2 SCC 706 (4) Hindustan Petroleum Corporation Ltd. and another v. Dolly Das reported in (1999) 4 SCC 450 Para 9. (5) Union of India and another v. State of Haryana and another reported in (2000) 10 SCC 482 Para 3 (6) Life Insurance Corporation of India and others v. Asha Goel (Smt.) and another reported in (2001) 2 SCC 160 Para 10-11 at Page 166 (7) Dr. Bal Krishna Agarwal v. State of UP and others reported in (1995) 1 SCC 614 Para 10 (8) Chairman, Railway Board and others v. Chandrima Das (Mrs) and others reported in (2000) 2 SCC 465 at para 467 para 8 21. Having gone through the principles laid down in the cases referred to herein above, we are of the opinion that this writ petition cannot be thrown on the ground that the petitioners are claiming the relief with regard to the payment of money. Having gone through the principles laid down in the cases referred to herein above, we are of the opinion that this writ petition cannot be thrown on the ground that the petitioners are claiming the relief with regard to the payment of money. The original agreements were with the Board and if lateron, the Companies have come into existence by operation of law, which is a valid piece of legislation, the liabilities arising out of such contracts have devolved upon the succeeding companies by operation of law and in such matters, when the Board was facing financial crisis, the petitioner Companies came forward to enter into an arrangement so as to help the Board coming out of the financial crisis. Now, that the dispute has arisen, we do not think that the petitioners should be thrown to the onerous remedy of filing civil suit particularly in view of the observations made by Krishna Iyer J. in the case of Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and others (supra) to the following effect : "In the present case, had the aggrieved party been driven to the hierarchy of courts, he would have lost, not on the merits, but by the sands of time running out before ultimate victory was in sight. Time and tide do not wait for the tardy courage of Indian justice and, if the appellant had really forfeited the confidence of the councillors, he should not be allowed to cling on the President's office in the confidence that our slow-motion court system would take a few years for processing final legal justice, hopefully helping him through his unmerited full terms." 22. The objection raised by the respondents is therefore, rejected. 23. Our attention was invited by the learned counsel for the petitioners that here is a case in which the opinion had been rendered by the learned Advocate General; the report made by the Accountant General has also not been given the weight to which it was entitled and the report of Mr. C.L. Jhanwar, Chartered Accountant has also been ignored; and it is very clear that the petitioners have a genuine dispute and a fair question to raise with regard to the demand. C.L. Jhanwar, Chartered Accountant has also been ignored; and it is very clear that the petitioners have a genuine dispute and a fair question to raise with regard to the demand. The respondents are avoiding the main issue and have shown a scant regard for the opinions expressed by the responsible functionaries and authorities at the helm of affairs and they have also taken an unreasonable attitude of not agreeing to the court's suggestion for the resolution of this dispute by alternative disputes resolution system when it has categorically been held in the case of Koshy Varghese v. Hindustan Paper Corporation Ltd., and others reported in AIR 2000 Kerala 363 as under: "We are of the opinion that where the matter is kept unduly pending without passing any orders by the respondents, this Court shall interfere under Article 226 of the Constitution. We therefore, hold that the writ petition is maintainable. In the office memorandum issued by the Ministry of Industry, Government of India, it has been made very clear that inter se Public Sector Enterprises must seek to resolve their dispute through arbitration. Avoidance of unnecessary expenditure and saving of time and energy are the reasons behind such a move. By parity of reasoning, the same principle can be extended to the case of contracts between Public Sector Enterprises and private individuals like the one in question. By agreeing to constitute a High Power Committee and convening its meeting, the respondents have acquiesced in the position that there is a valid and tenable claim for the petitioner for damages. Therefore, as pointed out by the learned counsel for the appellant, the respondents cannot now retrace their steps or recoil from what has been taken by them. In fact the respondents have resorted to resolution of disputes with private individuals of institution. Therefore, there is no reason why the same facility cannot be extended to the case of the appellant, who has been crying for justice from the year 1990 onwards at the hands of the respondents. The only request now made by the appellant is to include an independent person, a retired judge also as a member of the Committee apart from the department officials. The only request now made by the appellant is to include an independent person, a retired judge also as a member of the Committee apart from the department officials. It is argued by the appellant's counsel that the appellant has suffered a heavy loss and has virtually become impecunious and that if his case is decided by the Arbitrators, he would be able to rehabilitate himself and earn a livelihood." 24. Hence, even if there is no agreement, the Court can direct arbitration. No doubt, the constitutional functionaries such as Advocate General, render advice to the State but under Article 165 of the Constitution of India, such opinion cannot be bye-passed even if no reference was made by the State Government to the Advocate General and the Board of its own, sought advice u/s 76A from the Advocate General, yet the opinion of the Advocate General was entitled to great weight and great respect. We think that it is not a case in which the petition can be thrown out as not maintainable by saying that it is a case of recovery of money for breach of contract and the relief prayed for is akin to money decree nor it is possible to enter into exercise of calculation and adjudicate the liabilities as the petitioners have claimed a total sum of Rs. 2884.21 lacs with interest and in alternative, to order to remit the amount of lease rentals from October, 2001 amounting to Rs. 86.56 lacs and to direct the State Bank of Bikaner and Jaipur to release the lease rentals to the extent of Rs. 2884.21 lacs in terms of the obligations under the designated account and to enter into the exercise of calculations for this purpose. However, we find that it is a fit case for issuing directions as under: 25. We hereby constitute a High Power Committee as under: 1. Advocate General for the State of Rajasthan - Chairman 2. Accountant General Rajasthan, Jaipur. - Member 3. Mr. C.L. Jhanwar, C.A. - Member 26. However, we find that it is a fit case for issuing directions as under: 25. We hereby constitute a High Power Committee as under: 1. Advocate General for the State of Rajasthan - Chairman 2. Accountant General Rajasthan, Jaipur. - Member 3. Mr. C.L. Jhanwar, C.A. - Member 26. This High Power Committee will consider the claims of both sides on the basis of the record, hear the parties and would give its report to this Court, within a period of three months from the date of certified copy of this order is made available to the parties and the learned Advocate General for the State of Rajasthan, the Accountant General, Rajasthan, Jaipur and Mr. C.L Jhanwar, C.A. The liabilities and obligations of the parties shall stand determined accordingly. Copies of this order be sent to the learned Advocate General, Accountant General, Rajasthan, Jaipur and Mr. C.L. Jhanwar, C.A. immediately. 27. With the direction as above, the writ petition is partly allowed. In the facts and circumstances of the case, no order as to costs.Petition Dismissed. *******