Rajasthan High Court - Jodhpur
Kalpatru Power Transmission Ltd vs State (Energy) & Ors on 21 August, 2012
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
SAW No.1246/2011
Kalpatru Power Transmission Limited
Vs.
State of Rajasthan & Ors.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
:: JUDGMENT ::
D.B. CIVIL SPECIAL APPEAL [W] NO.1246/2011
Kalpatru Power Transmission Limited
Vs.
State of Rajasthan & Ors.
Date of Order :: 21st August 2012.
PRESENT
HON'BLE MR. DINESH MAHESHWARI, J.
HON'BLE MR. NARENDRA KUMAR JAIN-II, J.
Mr.M.S. Singhvi, Senior Advocate with
Mr. Manoj Bhandari ]
Mr. Bhuvnesh Sharma ], for the appellant.
Mr.Anand Purohit, Senior Advocate and AAG with
Mr.Pradhyuman Singh, for the respondents Nos.1 and 2.
Mr.V.K. Agarwal, for the respondents Nos. 3 and 4.
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BY THE COURT:
This intra-court appeal arises out of a writ petition (CWP No.8781/2011) wherein the petitioner-appellant Kalpatru Power Transmission Ltd. stated grievance against the Notice Inviting Tender ('NIT') dated 19.08.2011 [Annex.8] as issued by the respondents Nos.3 and 4 for setting up of 4.9 MWH biomass based co-generation power plant; and prayed that the respondents be restrained from installing and commissioning any such plant at Chak 23 F, Kaminpura, Tehsil Srikaranpur, District Sri Ganganagar.
The petitioner-appellant submitted that it had commissioned two power plants, first of 7.8 MW capacity at Chak 27BB, Tehsil Padampur, District Sriganganagar and second of 8 MW capacity at SAW No.1246/2011 Kalpatru Power Transmission Limited Vs. State of Rajasthan & Ors.
2 village Khatoli, Tehsil Uniara, District Tonk with reference to the 'Policy for Promoting Generation of Power through Non-conventional Energy Sources'; and asserted that the area of the proposed plant under the NIT dated 19.08.2011 fell within the area kept reserved for it, as per the assurance made by the State Government.
It was submitted that in regard to the apprehension of the power developers about assured availability of biomass fuel, Sub- clause 8 (iv) was inserted in the said policy as under:-
"Reservation of 50 KM Area- If the State Government is satisfied with the progress achieved in the setting up of a biomass power plant at a duly approved site, no other biomass power plant shall be allowed within a radial distance of 50 KM of the site of the first power plant."
The appellant also referred to the new policy as framed by the State Government in its Notification No.F.20 (10) Energy/09 dated 26.02.2010 wherein it was, inter alia, provided as under:-
"10.2 Provided that Biomass Power Project of less than 5 MW capacity can be set up within the reserved area of any plant of capacity of 5 MW and more with the permission of RREC. Provided further that no area shall be kept reserved for Biomass Power Project(s) of capacity less than 5 MW."
The appellant further referred to Clause 10.10 of the said new policy that reads as under:-
"10.10 The Biomass Power Plants commissioned under earlier Policies of the State Government shall continue to be governed by the relevant Policies in operation at the time of commissioning of the Project."
It was the contention of the petitioner-appellant that when the existing plants are to be governed by the relevant policies in operation at the time of commissioning; and one of the important SAW No.1246/2011 Kalpatru Power Transmission Limited Vs. State of Rajasthan & Ors.
3 stipulation had been of not allowing any other biomass based power plant within a radial distance of 50 Kms, any attempt on the part of the respondents in setting up another biomass based power generation plant within such radius of 50 Kms from the plant of the petitioner was contrary to the policy made and the assurances given whereupon and wherefor, did the petitioner make the investment and change its position.
The learned Single Judge of this Court dealing with the writ petition rejected the contention as urged on behalf of the petitioner- appellant on the doctrines of promissory estoppel and legitimate expectation after finding that the new policy of the Government was in consonance with the constitutional provisions and public interest.
Upon taking up of this intra-court appeal for consideration, the learned Additiional Advocate General appearing for the respondents Nos.1 and 2 submitted at the outset that the Government is ready to meet with the apprehension stated by the appellant about likelihood of curtailment of the availability of biomass fuel for functioning of their power plant. Upon further queries for clarification, the learned Additional Advocate General has placed before us in writing a specific statement on behalf of said respondents supported with the affidavit of the Project Officer RRECL, the officer incharge of the case, wherein it has categorically been stated, "In the above mentioned case, it is submitted that, bio-mas fuel will be provided to the petitioner company to the extent of availability of fuel for existing 7.8 MW bio-mas base power plant of M/s Kalpatru Transmission Power Limited."
SAW No.1246/2011
Kalpatru Power Transmission Limited Vs. State of Rajasthan & Ors.
4 Upon filing of such undertaking on behalf of the State, the learned counsel for the petitioner-appellant submits that as at present, this assurance and undertaking takes care of the apprehension entertained by the appellant but, since the area of availability of fuel has not been distinctly mentioned in this undertaking, there may not arise some doubt or dispute in future in this regard. The learned counsel, however, frankly submits that as at present, the basic and essential apprehension of the petitioner having been taken care of by the State, the petitioner-appellant shall stand advised not to proceed with this litigation any further. The learned counsel, therefore, seeks permission on behalf of the petitioner-appellant to withdraw from the writ petition itself with liberty to approach this Court again or to take recourse to any other appropriate remedy as might be necessary in case of any grievance remaining or any occasion arising therefor. The learned Additional Advocate General has no objection.
The learned counsel Mr. V.K. Agarwal appearing for the respondents No.3 and 4 submits that although the said respondents have otherwise no objection but their interests have not been directly safeguarded in the undertaking filed on behalf of the State. So far this submission on behalf of respondents No.3 and 4 is concerned, suffice is to observe that the present litigation has emanated on the grievance as suggested by the petitioner-appellant and did not commence at any grievance of the said respondents. As at present, there is nothing to assume or even infer that the Government intends to deal with the matter in any such manner as to cause prejudice to the respondents No.3 and 4.
SAW No.1246/2011
Kalpatru Power Transmission Limited Vs. State of Rajasthan & Ors.
5 In the totality of the facts and circumstances, we feel it appropriate that so far the present litigation is concerned, the petitioner-appellant may be permitted to withdraw from the writ petition itself while leaving it open for all the parties to approach this Court in case of any grievance arising hereafter or to take recourse to any other appropriate remedy in accordance with law. Subject to the observations and liberty foregoing, the petitioner-appellant is permitted to withdraw, as prayed.
However, we make it clear that granting of such permission has been considered essentially looking to the fair stand taken by the Government in this matter by filing an undertaking with which, the petitioner-appellant feels satisfied as at present and, therefore, seeks to put an end to the litigation. In the given circumstances, the appeal has otherwise not been taken up for adjudication of any of the issues as suggested; and the petitioner-appellant is being permitted to withdraw as we feel that looking to the subject-matter of the litigation, such a course is in the fitness of things and so also in the interest of justice.
The writ petition, therefore, stands dismissed as withdrawn with liberty and observations, as above. As a necessary corollary, this appeal is rendered infructuous and is dismissed as such. No costs.
(NARENDRA KUMAR JAIN-II), J. (DINESH MAHESHWARI), J. mamta S.No.21 MOHAN