ORDER As pleadings are complete with consent of parties, this writ petition was heard at length for final disposal at this stage itself. 2. Originally, the writ petition was filed, inter alia, to declare the introduction of revised Clause-5.3.1 of the Request for Proposal (RFP) in respect of Patna Electric Supply Unit (PESU) area (Patna) to be arbitrary, unreasonable and to set it aside restoring the original clause. Later the new RFP issued cancelling the earlier RFP is also challenged by interlocutory application by amending the writ petition, which has been allowed. 3. Heard Mr. Y.V. Giri, learned Senior Counsel in support of the writ petition and Mr. Lalit Kishore, learned Senior Counsel and Principal Advocate General, ably assisted by Mr. Anand Kumar Ojha for the Bihar State Power (Holding) Company Limited. 4. The facts are not in dispute. The Electricity Act, 2003 (hereinafter in brevity ‘Act’) and its subsequent amendments which repealed the Indian Electricity Act, 2010, the Electricity (Supply) Act, 1948 and the Electricity Regulatory Commission Act, 1998, while consolidating the law governing and relating to generation, transmission, distribution, trading and use of electricity, made radical changes in the entire concepts. Apparently, in conformity with the new Act and in view of Section-131 thereof, the erstwhile Bihar State Electricity Board stood dissolved and it vested in the State Government. In its place the State Government formed, as per the Act, the Bihar State Power (Holding) Company Limited with two subsidiaries. North Bihar Power Distribution Company Limited for that part of the State lying North of river Ganga and the South Bihar Power Distribution Company Limited so far as those areas of the State of Bihar which were South of river Ganga. 5. Thus, so far as the distribution of electrical energy is concerned, the State was divided amongst the two aforesaid Power Companies as envisaged under the Act. It is these Companies which hold the license for distribution of power as envisaged under Section-12 (b) of the Act, read with Section-14 (b) of the Act. So far their duties are concerned they are dealt in Part-VI of the Act. The power distribution licensees are free to device such economic methods, as they think fit, for equitable and economical distribution of power to consumer which power includes appointment of distribution franchisee for areas as it may deem fit as envisaged under Part-II of the said Act. 6. The power distribution licensees are free to device such economic methods, as they think fit, for equitable and economical distribution of power to consumer which power includes appointment of distribution franchisee for areas as it may deem fit as envisaged under Part-II of the said Act. 6. On behalf of the Central Government the Ministry of Power from time to time issues policies statements and it appears in 2012 it issued a policy statement authorizing the Power Distribution Companies to appoint distribution franchisee on model terms and conditions stipulated by it. Apart from stating the contents of Standard Bid Document (SBD), it clearly stated that the terms are only guidelines and the Power Distribution Companies were free in the interest of economic distribution of power to vary the terms to ensure better performance. Apparently, one of the conditions stipulated was with regard to the past experience of distribution franchisee to be selected and appointed. It had stipulated that apart from having certain net worth in the preceding financial year and internal resource generation for previous three years, it should have experience of handling of certain proportion (20%) of consumers in the organized retail sector for at least one year. 7. It appears that before the reorganization of the Bihar State Electricity Board (BSEB) could take place it took a decision to appoint distribution franchisee for different areas in the State of Bihar. It, accordingly, issued a notification on or about 22nd October, 2012, being Request for Proposal for appointment of a distribution franchisee, for four separate areas, being PESU area (Patna), Muzaffarpur town and adjoining areas, Bhagalpur town and adjoining areas and Gaya town and adjoining areas. The notification so far as PESU area is concerned is Annexure-1 to the writ petition. This Request for Proposal is virtually a notice inviting tender (NIT) because on the proposal being accepted the franchisee then enters into a distribution agreement and takes up the business of distributing the power in the assigned areas. As per the bid document, it was clearly stated that BSEB had taken adequate care while preparing the RFP document. It reserved the rights to modify, amend or supplement this document. As per the bid document, it was clearly stated that BSEB had taken adequate care while preparing the RFP document. It reserved the rights to modify, amend or supplement this document. In so far as PESU area (Patna) is concerned, the last date and time for sale of bid document was 14thof December, 2012 and the last date and time of receipt of bid documents was 17thof December, 2012 by 5 pm. The bid documents were to be submitted in two parts, i.e., Part-I Technical Bid and Part-II Price Bid. The later was to be submitted once a franchisee was selected upon the technical bid being accepted. The technical bid was to be opened on 18.12.2012 at 11 am. The earnest money was fixed at Rs.30 crores by way of bank guarantee in favour of BSEB payable at Patna. In so far as Patna was concerned, the technical proposal requirement was contained in Clause-5.3, which is quoted hereunder:- “5.3 Technical Proposal 5.3.1 For the purpose of technical evaluation, the bidder should satisfy the following criteria: • The bidder should be a public limited company and which meets the conditions of Code of Conduct for grant of Distribution Business License. • The Net worth of the Bidder should Rs.375 Cr. as per the Audited Annual Accounts of the FY 2011-12. • The Average Internal Resource Generation of the Bidder should be Rs.187 Cr. as per the Audited Annual Accounts for the FY 2009-10, FY 2010-11 and FY 2011-12. • The bidder should have experience of handling at least 70500 consumers in organized retail sector. The bidder should necessarily submit the documentary evidence in regard to the above failing which the bidder may be considered disqualified on account of non-responsiveness. All bidders, who qualify to the prequalification criteria as mentioned above, shall be treated at part while evaluating the financial bid. No preference on account of better technical qualification shall be given to any of the bidders in any manner.” 8. From the aforesaid, it would be seen that so far as the experience is concerned, all it provided was that the bidder should have experience of handling at least 70500 consumers in organized retail sector in so far as Patna is concerned. From the aforesaid, it would be seen that so far as the experience is concerned, all it provided was that the bidder should have experience of handling at least 70500 consumers in organized retail sector in so far as Patna is concerned. It may be noted here that so far as the Muzaffarpur, Bhagalpur and Gaya is concerned, the rest of the requirement of the technical proposal was the same except in so far as the experience of handling of consumer. The handling of consumer is concerned, as noted above, for PESU area (Patna) it was 70500, but for Muzaffarpur it was 26500, for Bhagalpur area it was 23000 and for Gaya area it was 20000. 9. The petitioner Company having intentions to seek appointment of distribution franchisee for all the four areas and having necessary qualifications, as stipulated in the bid document, applied for all the four areas separately, as required by the bid document. It made provisions for the earnest money through bank guarantee as stipulated. 10. It appears that for some reason there was a very poor response to this notice inviting tender (RFP) and as such on 17.12.2012 a corrigendum was issued by the Bihar State Power (Holding) Company (hereinafter in brevity ‘Power Holding Company’), the successor to the BSEB, extending the last date and time of sale of bid documents to 31.12.2012 and the same was also fixed for the last date for receipt of the document though two hours later. The date of opening of technical bid was also shifted to 02ndJanuary, 2013. This was in respect of all the four areas under consideration. 11. As noted above, the petitioner Company had applied for all the four areas and apparently so far as Muzaffarpur is concerned, it was the only applicant and, accordingly, its application was accepted by the North Bihar Power Distribution Company Limited for Muzaffarpur area and they were issued Letter of Intent No.786 dated 25.03.2013 (Annexure-3). This was later followed by an agreement dated 04.06.2013. So far as PESU area is concerned, these dates with regard to sale of bid documents, receipt thereof and opening thereof were twice extended the last being on 20.01.2013 when the sale and receipt of documents were extended up to 07thof March, 2013 and opening of technical bid was fixed on 08.03.2013. So far as PESU area is concerned, these dates with regard to sale of bid documents, receipt thereof and opening thereof were twice extended the last being on 20.01.2013 when the sale and receipt of documents were extended up to 07thof March, 2013 and opening of technical bid was fixed on 08.03.2013. In this last extension for PESU area apart from petitioner one more bidder turned up. Thus, as against Muzaffarpur area where the petitioner Company was the sole bidder and selected and Letter of Intent was issued for Patna area there were now two bidders. 12. As noted above, so far as PESU area is concerned, the last extension by almost three months was done on 20.01.2013, the date being extended to 07thof March, 2013. The petitioner made enquiries and it revealed that the Power Holding Company was intending to move or had moved the Bihar Electricity Regulatory Commission (hereinafter in brevity ‘Regulatory Commission’) seeking permission to amend the bid document (RFP). Petitioner Company represented both to the Regulatory Commission and the Power Holding Company that while it welcomed any move of relaxation of any terms and conditions in the bid document would encourage more competitiveness by permitting more people to participate, the Power Holding Company should not alter or amend the bid document in a manner to restrict competition or make it more stringent because as it is on the existing terms and conditions hardly anyone except petitioner had come. It also pointed out that petitioner was one of the countries largest distribution franchise and was already operating in several cities including Nagpur. There was no response from the Power Holding Company but there was response from the Regulatory Commission, whereby the petitioner was informed that the Regulatory Commission had already passed orders on the application of the Power Holding Company on 26.02.2013. It was pointed out that petitioner Company’s representation was received after the order had been passed. The Regulatory Commission also enclosed the order as passed in relation to amending the eligibility criteria as sought by the Power Holding Company. The order of the Regulatory Commission in Case No.03 of 2013 is part of Annexure-6 series and the order has been passed with reference to Section-86 of the Act which provides for function of Regulatory Commission. 13. The Regulatory Commission also enclosed the order as passed in relation to amending the eligibility criteria as sought by the Power Holding Company. The order of the Regulatory Commission in Case No.03 of 2013 is part of Annexure-6 series and the order has been passed with reference to Section-86 of the Act which provides for function of Regulatory Commission. 13. The Regulatory Commission noted that it was not required to approve or disapprove the terms and conditions because the distribution franchisee was not distribution licensee. The Regulatory Commission was to regulate the working of the licensees and not their franchisee. It revealed the change that was sought to be made. It noticed that as per the standard bidding document for appointment of urban distribution franchisee as laid down by the Ministry of Power, Government of India in June, 2012 (it was the basis for issuing the bid document by the BSEB on the first occasion), the Ministry of Power had stipulated that the bidder should have experience of handling at least 20% of the total number of consumers in the franchisee area for the year preceding the year for which the bidding is done. In other words, as per the Ministry of Power, Government of India it was one year’s previous experience of requisite number of consumers to be serviced that was required. The change that was sought to be made by the Power Holding Company in Clause-5.3.1 was that instead of one year’s experience it was made more stringent of having three years continuous experience. The relevant change as sought by the Power Holding Company in its meeting dated 24.01.2013, pursuant to which the Regulatory Commission was moved, is quoted hereunder:- “Clause 5.3.1 of revised RFP of BSPHCL reads as under:- The bidder should be a Distribution Franchisee or a Distribution Licensee as per provision of Electricity Act 2003 having experience of handling at least 70500 retail electricity consumers at one location during last three (3) years continuously.” 14. From the aforesaid facts, it would be seen that originally the condition of experience of servicing 70500 consumers was for one year and the last date when RFP extension was granted was 20.01.2013, extending the date to 07.03.2013. Immediately thereafter on 24.01.2013, the Power Holding Company resolved to amend the eligibility condition from one year to three years experience. The number of consumers being the same, i.e., 70500. Immediately thereafter on 24.01.2013, the Power Holding Company resolved to amend the eligibility condition from one year to three years experience. The number of consumers being the same, i.e., 70500. It would thus be seen that with one year experience there were ultimately only two bidders by making it stringent effectively even those two bidders were to be eliminated. Another noticeable fact is that one party did appear before the Regulatory Commission and pleaded that the experience should be limited to two years. This shows that at that point of time there was no franchisee ready to come to Patna who had any experience of three years by then, as apparent from Annexure-8. At this juncture, petitioner also requested the Power Holding Company either not to adopt the 3 years experience clause or at best reduce it to 2 years which may get some competitive bidders. That it was at this stage that the writ petition was filed challenging the mindless exercise of the Power Holding Company in keeping the bids open, cancelling it, revising and making terms more stringent to eliminate even the applicants. 15. Ultimately, the Power Holding Company then issued notification cancelling the NIT itself vide notification dated 06.03.2013 due to “unavoidable reasons” as apparent from Annexure-7 to the writ petition. It then on or about 29.05.2013 issued a revised request for proposal in respect of PESU Patna area incorporating therein the new eligibility Clause of three years’ experience, as noticed above. This was also challenged. 16. In response to the writ petition, a counter affidavit was filed by the Power Holding Company in which it was stated that Ministry of Power, Government of India had given liberty to the Power Holding Companies to alter the standard bid document to make it more effective and, as such, upon rethinking of the matter considering Patna to be the State capital it sought for people with greater experience as if it was revelation which had dawned up the senior management of the Power Holding Company only after the issuance of NIT when people did not turn up. This is a sad display of professional acumen on part of the top level management of the Power Holding Company. 17. This is a sad display of professional acumen on part of the top level management of the Power Holding Company. 17. On behalf of the petitioner, it was argued that apparently all this was done only to avoid competition awaiting some other people to come, who were waiting in the wings, otherwise there was no sense in making the competition more stringent when even with original conditions there were very few takers. It did not make any business sense. It lacked rationality. This would be demonstrated by what happened later. Now, the Power Holding Company having issued the fresh NIT with three years’ experience clause waited. It waited and no one turned up because those who were eligible earlier had also become ineligible under the three years experience clause. No one turned up and ultimately as informed through the second (supplementary) counter affidavit even this Request for Proposal (NIT) on the revised conditions has been cancelled after extending the periods twice. On behalf of the petitioner, it is also argued that once they had complied with the bid document then the Power Holding Company was bound to finalize the process accordingly. The reason given for cancellation of the first NIT can only be termed as fanciful and arbitrary and so is the issuance of the second NIT with increased experience as eligibility. 18. It was also pointed out on behalf of the petitioner that it was one of the India’s largest distribution company franchisee. It was pointed out that if the criteria of three years’ experience were in larger public interest then why other franchisee areas like Muzaffarpur, Bhagalpur and Gaya were left for selection with one year’s experience only. It was also pointed out and it could not be denied by the respondents that petitioner Company was the distribution franchisee for city like Nagpur in the State of Maharashtra, which had a much larger consumer base than Patna and its adjoining area but that experience was peculiarly not thought sufficient when now it came to PESU area, which shows the irrationality of the decision and only shows that it was purposefully taken to eliminate the petitioner. It is further pointed out that if the clause of 3 years’ experience is insisted then in this country there being only four such organizations which could qualify and even they avoided Patna all along what was the purpose if not only to eliminate the petitioner. Information with regard to distribution franchisee in India are all available in public domain then why this sudden change. 19. On behalf of the Power Holding Company, it is submitted that they had a right to amend or alter the terms and conditions. The Ministry of Power, Government of India permitted them to alter the tender bid document to improve working conditions. Accordingly, they acted in bona fide in increasing the experience period which was in public interest and they cannot be forced to settle the first tender. Accordingly, their action in issuing the second tender on revised condition is not arbitrary. 20. The first thing to be noted is that when responsible officers sit down to take such decisions it is expected from the State that they would act responsibly because not only they are responsible for the benefit to the consumers but they have a responsibility to the tenderers as well. As noticed earlier, the tenderers had to apart from other submit an earnest money in the shape of bank guarantee of no small amount. It was to the extent of Rs.30 crores. It must be remembered that the bank guarantee are not issued free of cost by the banks. Tenderers have to incur heavy expenses and make much commitment to be able to get such bank guarantees. For the purposes of applying for tender they have to invest lot of time, money and energy. All has gone wasted not because they failed to compete but because someone in the BSEB or the Power Holding Company had different ideas which changed the whole playing field. The guidelines of Ministry of Power, Government of India were the same when the first NIT was issued. It was not as if after the first NIT was issued some fresh guidelines were issued by the Government of India which necessitated change in eligibility criteria. The only reason for change was a change in opinion or an afterthought by the people responsible for issuing the NIT. It was apparent that the Power Holding Company was aware that they could not change it easily. The only reason for change was a change in opinion or an afterthought by the people responsible for issuing the NIT. It was apparent that the Power Holding Company was aware that they could not change it easily. They first tried to get it sanctified through the Regulatory Commission to use it as a pretext or a pretence justifying the change but when the Regulatory Commission refused to give its seal of approval, apparently because there was something else in the offing, they, the Board of the Power Holding Company, resolved or alter the eligibility criteria. Nevertheless, nothing has been brought on record nor any attempt made in this regard by the Power Holding Company to show that anything changed in between except the mind set of the officers. It is only reasonable to think that if on existing terms and conditions there is very little or no competition then by making it stringent you can only eliminate even that little competition then why do it unless there is some hidden agenda. I say this because apart from change of opinion nothing new is brought on record. People dealing with public finance and public rights are not expected to act in such a manner and merely raise the boggy of public interest. If public interest lay in three years experience, why was this not incorporated in the first tender itself. Why they had to wait from six months granting repeated extensions only to realize public interest which eliminated all tenderers and all competitiveness. 21. This Court finds that the only justifiable reason for all this exercise is that the Power Holding Company wanted to show at one hand that they were interested in appointing the distribution franchisee but on the other hand they wanted to delay the selection and appointment as far as possible and so far as to make some other people who had not earlier applied eligible. There is no other plausible reason of any rationality that has been brought on record. All that is said is we had the power we did it. All I can say is what was said in the case of R.D. Shetty Vs. International Airport Authority of India since reported in AIR 1979 Supreme Court 1628 = (1979) 3 Supreme Court Cases 469 that when State acts even in contractual matters it has different responsibilities from a common person. All I can say is what was said in the case of R.D. Shetty Vs. International Airport Authority of India since reported in AIR 1979 Supreme Court 1628 = (1979) 3 Supreme Court Cases 469 that when State acts even in contractual matters it has different responsibilities from a common person. There are many things that it cannot do what normally the common person can do in contractual matters. For example, a common person can select with whom it would like to do business or with whom it would not to do business, but so long as Article-14 is there this option is not available to the State and its instrumentalities like the Power Holding Company. Its actions are subject to Article-14 and the principles of rationality and non-arbitrariness therein. The irrationality of the decisions taken is writ large from the undisputed fact that by altering the condition the two tenderers who were there became ineligible. The second tender issued with three years experience clause in spite of extensions got no tenders. The only discernible reason is mere change of opinion with no change of facts or guidelines. This shows that irrationality and non business like approach which resulted in failure of the entire exercise without achieving anything, at least on paper. But, having said this and virtually having found that the action of the Power Holding Company in amending the eligibility criteria and cancelling the first tender and issuing the second tender was irrational, the question is, to what relief the petitioner is entitled. 22. On behalf of the petitioner reliance is placed on a recent decision of this Court in the case of M/s Technofab Engineering Ltd. Vs. The Bihar State Power (Holding) Company Limited and others, being C.W.J.C. No.6293 of 2013, and analogous cases decided on 26.04.2013. In that case the petitioners had challenged tender cancellation notices and the petitioners also challenged the fresh NIT issued thereafter. This Court allowed the writ petitions and quashed the fresh tender notice issued with direction to proceed with the earlier tender to the extent of Part-A thereof. Having considered the judgment, in my view, the case is clearly distinguishable and does not apply to the facts of the present case. In that case the tender was notified for rural electrification work which comprised of supply of materials and equipments, setting up of distribution supply stations etc. Having considered the judgment, in my view, the case is clearly distinguishable and does not apply to the facts of the present case. In that case the tender was notified for rural electrification work which comprised of supply of materials and equipments, setting up of distribution supply stations etc. on turn key basis under the Rajiv Gandhi Gramin Vidyutikaran Yojana (RGGVY). There were two parts to the tender. Part-A related to the RGGVY which apparently was Centrally sponsored and Part-B was under State plan. They were two distinct parts of the same tender. The tenders having been issued and the petitioners being the lowest tenderers the tenders were cancelled on the ground that due to some reason State funding may not be available. Then fresh tenders were issued restricting it to virtually Part-A of the first tender. On these facts, this Court held that when the first tender itself was divisible and it was only State funding become doubtful and the intention was clear to proceed with the Centrally funded Part-A then cancellation of the whole tender and re-issuance of part was irrational. Accordingly, the Court directed the original tender to continue quashing the new tender with deletion of Part-B of the old tender. I was also noticed that the tenderers had disclosed their rates etc. in the first tender then calling a second tender for the same would be unfair. In the present case of distribution franchisee such is not the situation. The eligibility condition has been totally changed while issuing the new NIT. Thus, the decision in the case of M/s Technofab Engineering Ltd. (Supra) cannot inure to the benefit of the petitioner. 23. In my view, if the Power Holding Company does not desire to settle the right of distribution franchisee then the discretion is theirs. There is no compelling duty upon them to do so which can be enforced in law to make settlement much less on terms and conditions which they have themselves altered or rescinded. It is well settled that mandamus will issue only to compel a duty enjoined by law. As noted above, the Power Holding Company or for that matter North or South Bihar Power Distribution Company, its subsidiary, which is the distribution licensee under the Act, is not by law obliged to appoint distribution franchisee. It is well settled that mandamus will issue only to compel a duty enjoined by law. As noted above, the Power Holding Company or for that matter North or South Bihar Power Distribution Company, its subsidiary, which is the distribution licensee under the Act, is not by law obliged to appoint distribution franchisee. They do not violate any law by not appointing such franchisee and in such situation no mandamus can issue. Looking at it in another way, if they had originally issued the NIT itself with three years’ experience clause, it could not be said that the decision was per se illegal, arbitrary or irrational and no one could have challenged the same. If that be so then I see no reason to set aside the three years’ experience stipulation, which, in the sequence of facts noted above, I have found to be an irrational exercise. 24. That though, unfortunately, the petitioner has succeeded in establishing the irrationality of the actions of the Power Holding Company, this Court is not persuaded to issue mandamus or grant relief directing the Power Holding Company to proceed with the first tender and the first set of tenderers because law does not compel appointment of distribution franchisee. That being so, no writ can issue much less as sought for by the petitioner. In the facts and circumstances aforesaid, the writ petition is, thus, dismissed.