Himachal Pradesh High Court
______________________________________________________________________ vs State Of H.P. Through Principal ... on 30 November, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 5213 of 2012
Reserved on : 24.10.2016
.
Date of Decision: 30.11.2016
______________________________________________________________________
All Himachal Micro Hydel (100 KW) NGOS and Societies Association
through its President Sh. Varinder Thakur
.....Petitioner.
Vs.
State of H.P. through Principal Secretary, Non-Conventional Energy
Sources-cum-Secretary Power, Government of H.P. and others
of
.....Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge
rt
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the petitioner: Mr. Sanjeev Bhushan, Senior Advocate,
with Ms. Abhilasha Kaundal, Advocate.
For the respondents: Mr. V.S. Chauhan, Additional Advocate
General, with Mr. Vikram Thakur, Dy.
Advocate General, for respondent No. 1.
Mr. Vijay Arora, Advocate, for
respondents No. 2 and 3.
Mr. Ashok Sharma, Assistant Solicitor
General of India for respondent No. 4.
Ajay Mohan Goel, Judge:
By way of this writ petition, the petitioner has prayed for the following reliefs:
"(i) That a writ in the nature of certiorari may be issued and notification Annexure P-6 dated 12.03.2012 may be quashed and set aside.
Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 2(ii) That a writ in the nature of mandamus may be issued directing the respondents that all the NGOS/Co-operative Societies who, in furtherance of the publicity made by HIMURJA and their Project Officers .
have submitted their Pre Feasibility Reports and the inspections have been conducted by the HIMURJA, in their cases, they may be issued allotment letters on the same elevations as submitted by them, in the interest of justice.
(iii) That a writ in the nature of certiorari may of be issued and Annexure P-7 and Annexure P-8 may be quashed and set aside whereby the applications of the NGOS/Co-operative Societies have been rejected.
rt
(iv) To produce the entire record pertaining to the case before this Hon'ble Court for its kind perusal.
(v) Any other relief as may be deemed just and proper keeping in view the facts and circumstances of the case may also be granted in favour of the petitioners."
2. Petitioner claims itself to be an association of NGOs./Co-
operative Societies, who had identified the project sites (self identified) in furtherance of a Scheme floated by the Government of India, Ministry of New and Renewable Energy (Annexure P-2). As per the petitioner, its members identified the sites and completed entire work on asking of respondent No. 3, but vide a new notification dated 12.03.2012, entire work done by the members of the petitioner-Association was brought to a "big zero causing them lot of financial losses, loss of energy and time ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 3 spent on this, as entire work done by the members of the petitioner-
association would be utilized by some other persons."
3. Case put forth by the petitioner is that Ministry of New and .
Renewable Energy, Small Hydro Power Division (respondent No. 4) issued a Scheme, i.e. Scheme for Development/Up-gradation of Watermills and setting up Micro Hydel Projects (upto 100 KW capacity) to encourage and accelerate the development of Watermills and Micro Hydel Projects in the of remote and hilly areas by providing Central Financial Assistance (hereinafter referred to as "CFA"). Respondent No. 3 HIMURJA was made Nodal Agency of the said Scheme which was to further advertise and rt propagate the same through its website. The Scheme was accordingly propagated by respondent No. 3 through its website as well as through its District Level Officers. In the backdrop of the Scheme, members of petitioner-association identified the sites as per the Scheme and after identification, various developers started further work and Pre-feasibility Reports qua their self identified sites were prepared and the same were submitted to respondent No. 3. It is further the case of the petitioner-
association that after preparation of Pre-feasibility reports, sites were inspected by the field staff of HIMURJA and suitability reports of such self identified sites were submitted by the inspection team to HIMURJA.
It is further the case of the petitioner-association that for the identification of sites, NGOs. and Co-operative Societies engaged services of experts and spent huge amounts for the activities so undertaken by ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 4 them including for joint inspections. It is further the case of the petitioner-association that after clearances were given post inspection, each developer obtained NOC after spending lot of money and time and .
all the self identified projects were in an advance stage and only execution of the work remained to be commenced. It is further the case of the petitioner-association that these self identified sites fall within Intellectual Property Rights of the developers and respondents were now of estopped from cancelling such applications and allocating these projects on the basis of advertisement to others. It is further the case of the petitioner-association that its members had requested for issuance of rt allotment letters of the projects in their favour as they had completed all other formalities in this regard, however, rather than acting on the Scheme which was so formulated by the Government of India and ignoring the fact that a lot of work had been done at so many sites by the members of the petitioner-association, respondent-State came up with a Draft Policy for setting up Micro Hydel Projects up to 100 KW capacity in Himachal Pradesh. As per the petitioner-association, the members of the petitioner-association were surprised at the Draft Policy which was so circulated by the State, since after completing the entire work in anticipation of allotment letters, its members which included NGOs./Co-
operative Societies were taken back with shock. Further, as per the petitioner-association, detailed objections were filed to the said Draft Policy vide Annexure P-5, however, without taking into consideration the ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 5 objections so filed by its members, respondent-State notified a Policy, i.e. "Policy for setting up of Micro Hydel Projects up to 100 KW" vide Notification dated 12.03.2012 (Annexure P-6). As per Clause 6.1 of this .
Policy, the applications of the NGOs/Co-operative Societies were rejected vide Annexure P-7 dated 29.05.2012. It is further the case of the petitioner-association that thereafter all the Projects were also cancelled vide Annexure P-8. In this background, the petitioner-association has of filed the present petition praying for quashing of notification dated 12.03.2012 (Annexure P-6) on the ground that the impugned act of the State is arbitrary, discriminatory, illegal and defeats the legitimate rt expectation of members of petitioner-association and further for issuance of direction to the respondent-State to issue allotment letters in favour of NGOs/Co-operative Societies, who in furtherance of publicity made by HIMURJA and their Project Officers, submitted their Pre-feasibility reports and inspection qua which was carried out by HIMURJA.
4. In their reply, respondents No. 1 to 3 have challenged the maintainability of the writ petition and stated that in fact the Scheme of the Government of India was displayed on HIMURJA website only for the purpose of knowledge of public and the proposals which were submitted by the applicants were without any invitation by HIMURJA. As per respondents No. 1 to 3, no applications were invited by HIMURJA on the basis of Government of India Scheme and 90 aspirants who submitted 207 applications to HIMURJA, had submitted the same out of their own ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 6 volition. It is further mentioned in the reply filed by the said respondents that these proposals were submitted by the applicants on subsidy format of MNRE, which was meant for availing only capital subsidy from MNRE, .
Government of India, but were not fulfilling the criteria required for allotment of Project by the respondent-State and said incomplete proposals were not comparable in any meaningful evaluation to draw a merit list. It is further mentioned in the reply that as Government of India of had made State Nodal Agency responsible for proper utilization of subsidy (CFA) part, which was comparatively much higher than any other hydro project subsidy being provided by MNRE Government of India, the State rt Governments were within their right to frame such Rules and Regulations which ensured proper utilization of CFA by way of a policy. Accordingly, as per the said respondents, it was in this background that policy dated 12.03.2012 was notified and it was mentioned in Clause 6.1 of the same that "No preference will be given to the applicants who have already submitted their proposals in HIMURJA. All the applicants will have to submit fresh application for each project with requisite fee on the standard application format (Annexure R-3) and complete other formalities mentioned in the policy." It is further submitted by the said respondents that that the applications submitted pursuant to the Government of India Scheme were not fulfilling the requirements as per the policy which was approved by the Government of Himachal Pradesh and lacked Gram Sabha NOC for setting up of the project, commitment of ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 7 funds to meet the balance project cost, proof of land availability required for the project, audited balance sheets of the applicant for last three years, certified copy of the registration certificate, memorandum of .
articles of association or bye laws, proof of bonafide Himachali and proof of financial capability. It is mentioned in the reply that as all the proposals submitted by the applicants had one deficiency or the other, the proposals were accordingly rejected. As far as the issue of of maintainability of the writ petition is concerned, it is mentioned in the reply that though 90 applicants had applied under the Scheme notified by the Government of India, but Annexure P-3, which was letter written rt by the petitioner-association to Secretary (Power) was just signed by 7 Societies/NGOs. It is further mentioned in the reply that with regard to 90 applicants who had submitted 207 applications suo moto, 48 applicants had submitted 115 applications directly to HIMURJA at its Headquarter, whereas 42 applicants had submitted 92 applications through field offices of HIMURJA for setting up projects up to 100 KW. It is further mentioned in the reply that joint inspections, if any, carried out by HIMURJA field staff of these suo moto applications did not study available potential for higher capacity projects available upstream or downstream the water head. It is further mentioned in the reply that whereas projects upto 100 KW had fragmented 154 streams in 8 Districts, it was possible to come up with a single project of higher capacity on a stream which could avoid wastage of land. It is further ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 8 mentioned in the reply that majority of applications had been received from the soft areas where power requirement was already met by the Himachal Pradesh State Electricity Board Limited and very few .
applications were received from tribal and remote areas. It is also mentioned in the reply that even otherwise, the Department could not have had restricted any individual from carrying out any investigation at their own cost and time and that these investigations were carried out by of the individual/applicants at their own risk and cost, therefore, such like applicants could not take benefit by pleading that they had made huge investments for identification of the projects, which in fact was far away rt from true facts. It is further mentioned in the reply that the contention of the petitioner-association that the applicants had spent considerable labour, amount and time was a deliberate attempt made by the petitioner to capture sites without advertisement/notice inviting applications for allotment of projects as per the Scheme issued by the Government of Himachal Pradesh, and if the plea of the petitioner was accepted, then it will create unhealthy competition vis-à-vis petitioner and other applicants who want to apply for 100 KW capacity. It is denied by the State that issuance of policy by the State Government was a surprise and it is submitted in the reply that the persons who submitted their applications earlier suo moto were free to complete all codal formalities as per the State policy and resubmit fresh applications to the Government as and when the applications were so invited. It is further mentioned in the reply ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 9 that the respondents could not even otherwise have had permitted the applicants to go ahead with the sites without appropriate study and guidelines only because 90% subsidy was available for these projects. It .
is further mentioned in the reply that in Himachal Pradesh 100% census villages and 98% consumers had been provided electricity through grid connections and these projects were meant for areas where grid connectivity was not available. It is further mentioned in the reply that of only 20 applications had been received from remote areas and even in the said remote areas grid availability was available, and in view of less requirement of such projects, 100 KW projects were not a necessity in the rt State of Himachal Pradesh much less a priority for the State. The claim of Intellectual Property Rights of the applicants as claimed by the petitioner over natural resources is also denied in the reply and on these bases, respondents No. 1 to 3 disputed the claim of the petitioner-association.
5. In its reply filed by respondent No. 4, the stand taken by the said respondent is that the petitioner had sought relief against the Government of Himachal Pradesh and further as the decision of setting up SHP/MHP projects or its allocation was taken by the State Government, respondent No. 4 had no role in this process. Said respondent in its reply has given details of Central Financial Assistance for Watermills and Micro Hydel Projects being granted by the Union and also mentioned the procedure for availing CFA Micro Hydel Projects, which are quoted hereinbelow:
::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 10"IV Procedure for Availing CFA Micro Hydel Projects:
The State Government Departments/State nodal Agencies, Local Bodies, Co-operatives, NGOs.
.
etc. intending to avail CFA are required to submit the application as per enclosed format alongwith the following documets:
(i) Two copies of Project report covering various aspects of project implementation, completion schedule, O & M and cost estimates.
of
(ii) State Government approval for the
implementation of the project.
(iii) rt Commitment of funds to meet the balance
project cost.
(iv) Proof of land availability required for the
project."
6. The stand taken in para-4 of the reply affidavit filed by respondent No. 4 to the writ petition is quoted hereinbelow:
"4. That further the decision of setting up SHP/MHP projects or its allotment is taken by the State Government. The replying Deponent has "N" role in this process. The expression of interests/proposals/bids from developers are invited by the State Government/HIMURJA. However, it is respectfully submitted here that the deponent i.e. (MNRE) is responsible for the development of small hydro projects up to 25 MW station capacity as per Government of India's Allocation of Business Rules.
Electricity and electricity generated from hydro ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 11 projects is concurrent subject of Central and State Governments. Water being State subject, the SHP/MHP projects is governed by the State policies. The decision of setting up SHP/MHP projects or its .
allotment is taken by the State Government. The Ministry of New and Renewable Energy has no role in this process. The expression of interests/proposals/bids from private developers are invited by the State Government. The MNRE do not set up or allocate any small hydro project. It only provides of Central Financial Assistance (CFA) for setting up MHP/SHP projects in the States. For the State of Himachal rt Pradesh the expression of interests/proposals/bids from MHP/SHP developers are invited by the HIMURJA. However, Central Financial Assistance (CFA)/subsidy to SHP/MHP projects is provided to the developer based on the approval of the project and on the fulfilling the all conditions of eligibility for the same as per applicable MNRE Scheme for SHP programme."
7. No rejoinders were filed to these replies neither any rejoinder was intended to be filed by the petitioners.
8. During the pendency of this writ petition, on 01.03.2016, this Court had passed the following order:
"Shri Vijay Arora, learned counsel appearing for respondents No. 2 and 3 while inviting our attention to notification dated 12th March, 2012, issued by Principal Secretary (NES), State of Himachal Pradesh and communication dated 18th February, ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 12 2009, issued by the Ministry of New & Renewable Energy, Government of India, contends that the present petition has become infructuous, inasmuch as the plan period has come to an end w.e.f. 31st March, .
2012. Let this fact be ascertained both by the State as also the Central Government. Affidavit in that regard be filed positively within a period of two weeks from today, failing which, respondent No. 1 shall personally remain present in the Court.
List after two weeks."
of
9. In obedience to the abovementioned order passed by this Court, an affidavit was filed by Additional Chief Secretary (NES) to the rt Government of Himachal Pradesh, relevant portion of which is quoted hereinbelow:
"7. Now Ministry of New and Renewable Energy vide notification dated 2nd July, 2014, Annexure R-2/A notified Scheme for the financial year 2014-15 & the remaining period of 12th Plan i.e. upto 31st March, 2017, unless further modified and supersedes earlier Scheme in this regard under Small Hydro Project programme of the Ministry of New and Renewable Energy, Government of India. Under this Scheme certain changes has been made prior to the old notification. Comparison of Notification issued by Ministry of New and Renewable Energy dated 18.02.2009 viz a viz notification of Ministry of New and Renewable Energy dated 2.7.2014 is as under:
Notification of Ministry of Notification of Ministry of ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 13 New and Renewable New and Renewable Energy Energy dated 18.02.2009. on dated 2nd July, 2014. Scheme was Notified by New notification for the Ministry of New and scheme was notified by Renewable Energy dated Ministry of New and .
18.02.2009 which was Renewable Energy on dated valid up to 11th five year 2nd July, 2014, the scheme plan i.e. 31-March 2012, will be effective for the unless further modified financial year 2014-15 & and supersedes earlier the remaining period of 12th scheme in this regard Plan i.e. upto 31st March, under Small Hydro Project 2017, unless further programme of the Ministry modified and supersedes of New and Renewable earlier scheme in this of Energy Government of regard under Small Hydro India. Project programme of the Ministry of New and Renewable Energy, rt Government of India.
As per the Scheme, the As per the scheme the amount of Central amount of Central Financial Financial Assistance is Assistance is Rs.1,25,000/-
Rs.80,000/- per KW for per KW for all States of
North Eastern & Special India.
Category states and
Rs.1,00,000/- per KW for
international Borders
Distts.
The Central Financial The Central Financial
Assistance is applicable for Assistance is applicable for
the projects to be the projects to be
implemented by State implemented by State Govt.
Government Deptt/State Deptt/State Nodal
Nodal Agencies/Local Agencies/Local Bodies/Co-
Bodies/Co- operative NGOs./Tea
operative/NGOs Garden & Individual
Entrepreneurs.
8. That it is further submitted that now
Ministry of New and Renewable Energy has made certain changes in their new notification dated 2.7.2014 for 100 KW projects i.e. the Central financial assistance was changed from Rs. 80,000/- per KW to ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 14 Rs. 1,25,000/- per KW. Ministry of New and Renewable Energy has also modified eligibility criteria. As per new eligibility criteria, the Central Finanncial Assistance is applicable for the projects to .
be implemented by State Govt. Deptt/State Nodal Agencies/Local Bodies/Co-operative/NGOs/Tea Garden & Individual Entrepreneurs. The chance to the Tea Garden & Individual Entrepreneurs was also given by the Ministry in its new notification dated 2.7.2014. Therefore, to provide fair chance to more of interested parties the notification dated 12th March, 2012 will be revised as per the new policy scheme of Ministry of rt New and Renewable Energy dated 2.7.2014 after final decision of Hon'ble High Court. It is submitted that the application of the petitioner would be considered as per new policy. In the meantime, Govt. may be permitted to notify the policy issued by Ministry of New and Renewable Energy vide dated 2.7.2014 with state amendments. It is therefore, respectfully prayed that in view of the facts and circumstances narrated here in above the present petition may kindly be dismissed in the interest of justice."
10. We have heard the learned counsel for the parties and also gone through the pleadings of the parties.
11. In our considered view, the contention of the petitioner-
association that because its members had applied for allotment of projects pursuant to the Scheme notified by Government of India vide ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 15 Annexure P-2, the State had no authority to come with the amended policy and the projects have to be allotted to its members as a matter of right as they legitimately expected these projects to be allotted to them is .
without any merit. No material has been placed on record by the petitioner-Society from which it can be inferred that any holding out was made by the respondent-State or HIMURJA on the basis of the Scheme floated by Government of India by inviting applications thereupon. Not of only this, no material has been placed on record by the petitioner-
association from which it can be inferred that the proposed self identified sites of members of the petitioner-association were got inspected with the rt consent of the Government of Himachal Pradesh. Not only this, no material has been placed on record by the petitioner from which it can be inferred that the Government of Himachal Pradesh was not having any authority in law to issue notification dated 12.03.2012 which has been challenged by way of this writ petition. On the other hand, it is apparent and evident from the reply which has been filed by respondent No. 4, i.e. Union of India that issuance of the policy for allotment of SHP/MHP projects or its allotment was the domain of State Government and Union of Indian has no role in this process. It is further evident from the reply of respondent No. 4 that expression of interests/proposals/bids from private developers are invited by the State Governments or the nodal agency of the State Government. Therefore, the contention of the learned counsel for the petitioner that the issuance of the policy by the Government of ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 16 Himachal Pradesh is without any authority in law has no force. Even otherwise, in our considered view, the Scheme floated by the Government of India did not confer any indefeasible right upon the members of the .
petitioner-association, who purportedly applied for allotment of the projects on the basis of the Scheme so floated by the Government of India. In view of the reply filed by respondent No. 4, no such indefeasible right could have been created by a Scheme issued by the Government of of India by supplanting the powers of respective State Governments in this regard. In this background, there is no question of any legitimate expectation having accrued in favour of the members of the petitioner-
rt association of being allotted projects/sites qua which they submitted their applications pursuant to the Scheme floated by the Government of India. Not only this, there is a specific stand even otherwise taken by the respondent-State in its reply that the applications which were submitted by the applicants in response to the Scheme floated by the Government of India were incomplete applications and there was one discrepancy or the other in these applications. The stand so taken in its reply by respondents No. 1 to 3 has not been contradicted by the petitioner by way of any rejoinder.
12. The contention of the petitioner-association that its members were entitled to be allotted the sites qua which they had submitted their applications pursuant to Scheme floated in this regard by respondent No. 4 and that respondent-State had no authority to issue policy vide ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 17 notification dated 12.03.2012 has not even been supported by respondent No. 4. On the other hand, it is apparent from the stand taken by respondent No. 4 in its reply in general and in para-4 of its reply in .
particular that the State had the right to issue a policy for the purpose of laying down a uniform criteria to distribute Government largesse.
13. In our considered view, as far as the facts of the present case are concerned, there was no holding out made at any stage to any of the of applicants who applied for a site in response to the Scheme formulated by the Government of India that once the applicant had applied for a particular site, then the applicant shall be granted that site in all rt eventualities. This kind of a holding out is neither there on behalf of respondent No. 4 nor the petitioner could draw the attention of this Court to any document on record from which it could be inferred that on the basis of the said Scheme, any such holding out was made either by HIMURJA or by the respondent-State. There is no material on record from which it could be inferred that there was either any implied or express consent given to the Societies/NGOs. by either of the respondents to incur expenses for the purpose of identifying the proposed sites and preparing Pre-feasibility reports etc. Even otherwise, every interested party which intends to set up a project has to carry out a Pre-feasibility report to satisfy itself as to whether the project will be viable or not.
However, simply because a particular party prepares a Pre-feasibility report or incurs some expenses in this regard, this does not mean that all ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 18 this confers an indefeasible right over that party to be allotted that site.
Even otherwise, after come into force of the policy formulated by the State Government vide notification dated 12.03.2012 it is not as if the .
Society/NGOs. who had earlier submitted their applications have been barred from participating in the process of allotment of the sites. They are all free to participate in the allotment of the projects subject to their fulfilling the eligibility criteria which has been laid down in the policy by of the respondent-State. In this view of the matter, there is no merit in the contention of the learned counsel for the petitioner that any legitimate expectation of all the members of the petitioner-association has been rt defeated or the respondents were estopped from issuing policy notification dated 12.03.2012 or rejecting the applications earlier filed by Societies/NGOs. in response to the Scheme floated by the Government of India.
14. It is well settled law that public largesses should be distributed in a transparent manner by providing an opportunity to all eligible members to participate in the process. This not only ensures a healthy competition but also meets the prime object of fair play and transparency in the matter of distribution of public largesses.
15. A five Judges Bench of the Hon'ble Supreme Court in Confederation of Ex-Servicemen Associations and others Vs. Union of India and others (2006) 8 Supreme Court Cases 399 has held:
"34. The expression "legitimate expectation"
appears to have been originated by Lord Denning, M.R. ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 19 in the leading decision Schmidt Vs. Secy. of State. In Attorney General of Hong Kong V. Ng Yuen Shiu, Lord Fraser referring to Schmidr stated: (All ER P. 350 h-j) "The expectations may be based on some .
statement or undertaking by, or on behalf of , the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry."
35. In such cases, therefore, the Court may not of insist an administrative authority to act judicially but may still insist it to act fairly. The doctirine is based on the principle rt that good administration demands observance of reasonableness and where it has adopted a particular practice for a long time even in the absence of a provision of law, it should adhere to such practice without depriving its citizens of the benefit enjoyed or privilege exercised."
16. The Hon'ble Supreme Court in Sethi Auto Service Station and another Vs. Delhi Development Authority and others (2009) 1 Supreme Court Case 180 has held:
"33. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 20 authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the .
decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very of much limited. [Vide Hindustan Development Corporation}"
17. rt The Hon'ble Supreme Court in Jasbir Singh Chhabra and others Vs. State of Punjab and others (2010) 4 Supreme Court Cases 192 while tracing the earlier law laid down by the Hon'ble Supreme Court on the doctrine of promissory estoppel and legitimate expectations has held:
"41. In Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409, a two-Judge Bench of this Court discussed the doctrine of promissory estoppel in great detail and laid down the various propositions including the following:
"8..... The true principle of promissory estoppel, therefore, seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 21 the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he .
would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any pre-existing relationship between the parties or not."
of "24. The law may, therefore, now be taken to be settled as a result of this decision, that where the rt Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution.
42. A contrary view was expressed by another two-Judge Bench in Jit Ram v. State of Haryana (1981) 1 SCC 11, but the law laid down in Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. (supra) was reiterated in Union of India v. Godfrey Philips India Ltd. (1985) 4 SCC 369, which was decided by a three-Judge Bench. Bhagwati, C.J. with whom the other two members of the Bench agreed on the exposition of law ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 22 relating to the doctrine of promissory estoppel, observed:
"13. Of course we must make it .
clear, and that is also laid down in Motilal Sugar Mills case that there can be no promissory estoppel against the Legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel of cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or, rt power of the officer of the Government or of the public authority to make. We may also point out that the doctrine of promissory estoppel being an equitable doctrine, it must yield when the equity so requires; if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it, the Court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it. This aspect has been dealt with fully in Motilal Sugar Mills case and ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 23 we find ourselves wholly in agreement with what has been said in that decision on this point."
43. In Hira Tikoo v. Union Territory, .
Chandigarh (2004) 6 SCC 765, this Court considered whether the High Court was justified in refusing to invoke the doctrine of promissory estoppel for issuing a mandamus to the respondent-Chandigarh Administration to allot industrial plots to the petitioners, who had applied in response to an advertisement of issued in 1981. The Court noted that some of the successful applicants were given possession of the plots but majority of them were not given allotment letters on rt the ground that the land formed part of the reserved forest and partially approved the decision of the High Court by making the following observations:
"25. Surely, the doctrine of estoppel cannot be applied against public authorities when their mistaken advice or representation is found to be in breach of a statute and therefore, against general public interest. The question, however, is whether the parties or individuals, who had suffered because of the mistake and negligence on the part of the statutory public authorities, would have any remedy of redressal for the loss they have suffered. The "rules of fairness" by which every public authority is bound, require them to compensate loss occasioned to private parties or citizens who were misled in acting on such mistaken or negligent advice of the public authority. There are no allegations and material in these cases to come to a conclusion that the action of the authorities was mala ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 24 fide. It may be held to be careless or negligent. In some of the English cases, the view taken is that the public authorities cannot be absolved of their liability to provide adequate monetary compensation to the parties .
who are adversely affected by their erroneous decisions and actions. But in these cases, any directions to the public authorities to pay monetary compensation or damages would also indirectly harm general public interest. The public authorities are entrusted with public fund raised from public money. The funds are in trust of with them for utilisation in public interest and strictly for the purposes of the statute under which they are created with specific statutory duties imposed on them.
rt In such a situation when a party or citizen has relied, to his detriment, on an erroneous representation made by public authorities and suffered loss and where the doctrine of "estoppel" will not be invoked to his aid, directing administrative redressal would be a more appropriate remedy than payment of monetary compensation for the loss caused by non-delivery of the possession of the plots and consequent delay caused in setting up industries by the allottees."
44. The plea of the writ petitioners that they had legitimate expectation of being allotted residential plots in Phases VIII-A and VIII-B in Mohali because in 2002 138 plots were allotted to the successful applicants sans merit. At the cost of repetition, it is necessary to mention that the writ petitioners had submitted applications knowing fully well that the same would not obligate the Corporation to allot plots to them.
::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 25It is rather intriguing that even though approval of the layouts of residential pockets in Phases VIII-A and VIII- B, Mohali by Plan Approval Committee of the Corporation was subject to approval being accorded by .
the competent authority under the 1995 Act for change of land use from industrial to residential, and the Allotment Committee in which Managing Director of the Corporation had taken part, made a negative recommendation in the matter of allotment of land for housing purposes, the same officer authorized issue of of advertisement dated 23.3.2004 for holding provisional draw of lots. In our view, this exercise was wholly unnecessary and uncalled for. If the concerned officer rt had not acted in haste and waited for the decision of the competent authority on the issue of change of land use, the parties may not have been forced to fight this unwarranted litigation. Be that as it may, the writ petitioners cannot, by any stretch of imagination, claim that they had a legitimate expectation in the matter of allotment of plots despite the fact that change of land use was yet to be sanctioned.
45. The doctrine of legitimate expectation has been described in Halsbury's Laws of England 4th Edn. in the following words:
"A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or ::: Downloaded on - 15/04/2017 21:38:49 :::HCHP 26 promise made by the authority, including an implied representation, or from consistent past practice."
46. In Food Corporation of India v. Kamdhenu .
Cattle Feed Industries (supra), this Court considered whether by submitting tender in response to notice issued by the Food Corporation of India for sale of stocks of damaged food grains, the respondent had acquired a right to have its tender accepted and the appellant was not entitled to reject the same. While of approving the view expressed by the High Court that rejection of the highest tender of the writ petitioner- respondent was legally correct, this Court observed:
rt "The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of ::: Downloaded on - 15/04/2017 21:38:50 :::HCHP 27 non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent."
.
47. In Union of India v. Hindustan Development Corporation (supra), the doctrine of legitimate expectation was explained in the following words: "
of
28. For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and rt sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense."
The same principle has been stated and reiterated in Punjab Communications Ltd. v. Union of ::: Downloaded on - 15/04/2017 21:38:50 :::HCHP 28 India (1999) 4 SCC 727, Dr. Chanchal Goyal v. State of Rajasthan (2003) 3 SCC 485, J.P. Bansal v. State of Rajasthan (2003) 5 SCC 134, State of Karnataka v. Uma Devi (2006) 4 SCC 1, Kuldeep Singh v. Government .
of NCT of Delhi (2006) 5 SCC 702, Ram Pravesh Singh v. State of Bihar (2006) 8 SCC 381 and Sethi Auto Service Station v. DDA (2009) 1 SCC 180.
48. In the last mentioned judgment, the Court referred to various precedents and observed:
of "..................the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, rt now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfil unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles."::: Downloaded on - 15/04/2017 21:38:50 :::HCHP 29
49. The plea of discrimination raised by the appellants is being mentioned only to be rejected because no similarity has been pointed out between their cases and the cases of those who had applied for .
allotment of plots in focal point, Patiala and Phase VIII (Jeevan Nagar), Ludhiana except that a common draw was held in furtherance of advertisement dated 23.3.2004. In any case, in view of our interpretation of the policy decision contained in Memo dated 26.12.2001, the allotment made in two other focal of points, cannot enure to the appellants' advantage and a mandamus cannot be issued in their favour because that would result in compelling the competent authority rt to sanction change of land use from industrial to residential in contravention of the policy decision taken by the State Government."
18. The Hon'ble Supreme Court in Monnet Ispat and Energy Limited Vs. Union of India and others (2012) 11 SCC 1 has held that for invocation of the doctrine of promissory estoppel it is necessary that:
"(i) Where one party has by his words or conduct made to the other clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is, in fact, so acted upon by the other party, the promise would be binding on the party making it and he would not be ::: Downloaded on - 15/04/2017 21:38:50 :::HCHP 30 entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would .
be so irrespective of whether there is any pre-existing relationship between the parties or not.
(ii) The doctrine of promissory estoppel may be applied against the Government where the interest of of justice, morality and common fairness dictate such a course. The doctrine is applicable against the State even in its governmental, public or sovereign capacity where rt it is necessary to prevent fraud or manifest injustice.
However, the Government or even a private party under the doctrine of promissory estoppel cannot be asked to do an act prohibited in law. The nature and function which the Government discharges is not very relevant.
The Government is subject to the rule of promissory estoppel and if the essential ingredients of this doctrine are satisfied, the Government can be compelled to carry out the promise made by it.
(iii) The doctrine of promissory estoppel is not limited in its application only to defence but it can also furnish a cause of action. In other words, the doctrine of promissory estoppel can by itself be the basis of action.
::: Downloaded on - 15/04/2017 21:38:50 :::HCHP 31(iv) For invocation of the doctrine of promissory estoppel, it is necessary for the promisee to show that by acting on promise made by the other party, he .
altered his position. The alteration of position by the promisee is a sine qua non for the applicability of the doctrine. However, it is not necessary for him to prove any damage, detriment or prejudice because of of alteration of such promise.
(v) In no case, the doctrine of promissory estoppel can be pressed into aid to compel the rt Government or a public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. No promise can be enforced which is statutorily prohibited or is against public policy.
(vi) It is necessary for invocation of the doctrine of promissory estoppel that a clear, sound and positive foundation is laid in the petition. Bald assertions, averments or allegations without any supporting material are not sufficient to press into aid the doctrine of promissory estoppel.
::: Downloaded on - 15/04/2017 21:38:50 :::HCHP 32(vii) The doctrine of promissory estoppel cannot be invoked in abstract. When it is sought to be invoked, the Court must consider all aspects including the result .
sought to be achieved and the public good at large. The fundamental principle of equity must forever be present to the mind of the court. Absence of it must not hold the Government or the public authority to its promise, of assurance or representation."
19. The Hon'ble Supreme Court recently in State of Kerala rt and others Vs. Kerala Rare Earth and Minerals Limited and others (2016) 6 Supreme Court Cases 323 in a matter pertaining to grant of mining lease has held that mere disappointment of expectation cannot be a ground for interfering with the policy of the State.
20. As far as the issue of maintainability of the writ petition is concerned, we may observe that this writ petition has been filed by All Himachal Micro Hydel (100 KW) NGOs. and Societies Association through its President Sh. Varinder Thakur. In the body of the petition, there is no mention as to what is the legal status of this association and who all are the members of this association and what are its aims and objectives. No list of its members is appended with the petition. Communication dated 02.08.2010, which is appended with the petition as Annexure P-3 and which as per the petitioner is a representation made by it to Secretary ::: Downloaded on - 15/04/2017 21:38:50 :::HCHP 33 (Power), to the Government of Himachal Pradesh is also signed by only 7 Societies/NGOs. has also been pointed out in its reply by respondents No. 1 to 3. Annexure P-8, which is list of Societies/NGOs. who applied for .
100 KW projects and whose applications were rejected in terms of Clause 6.1 of the approved policy of the Government of Himachal Pradesh contains the names of 90 Societies/NGOs. In addition, the petition is filed on the affidavit of one Shri Varinder Thakur in his capacity as President of of 'All Himachal Micro Hydel (100 KW) NGOs. and Societies Association' and the contents of the petition have been sworn by the said deponent to be true and correct to the best of his personal knowledge and belief.
rt Therefore, we doubt as to whether the writ petition in its present form is maintainable or not. However, keeping in view the directions we propose to pass in the present writ petition, we do not deem it proper to dwell any further on the issue of maintainability of the writ petition.
21. Therefore, in view of the discussion held above, while we hold that the petitioner-association is not entitled for any of the reliefs prayed for, however, taking into consideration the averments made in the affidavit dated 11th March, 2016 filed by Additional Chief Secretary (NES) to the Government of Himachal Pradesh, we dispose of this writ petition by passing the following directions:
"1. Respondent-State is at liberty to proceed with allocation of projects as per its policy dated 12.03.2012 as well as subsequent notification issued ::: Downloaded on - 15/04/2017 21:38:50 :::HCHP 34 in this regard by the Government of India dated 2nd July, 2014 forthwith by inviting applications in this regard from all eligible parties, if not already invited.
.
2. Liberty is also granted to the respondents to invite fresh applications in this regard if so desired from all eligible and NGOs./Societies who had earlier applied pursuant to Scheme floated of by the Government of India (Annexure P-2) shall be at liberty to apply for the same if otherwise eligible and respondent-State may, if it so desires, provide rt for some preference for such like applicants.
3. We are constrained to observe that despite the fact that Ministry of New and Renewable Energy, Small Hydro Power Division, Government of India introduced the Scheme for development/up-
gradation of Watermills and setting up Micro Hydel Projects up to 100 KW capacity in the year 2009, the respondent-State woke up from its slumber after three years by issuing notification dated 12.03.2012, vide which it notified the policy for setting up Micro Hydel Projects up to 100 KW in the State. On account of said inaction on the part of the State, colossal loss has been caused by way of the ::: Downloaded on - 15/04/2017 21:38:50 :::HCHP 35 respondent-State not being able to gain the advantage which would have had floated to the State as per the Scheme envisaged by the Government of .
India. Even now, it is only communication dated 2nd July, 2014 issued by Government of India, vide which implementation of Small Hydro Power Programme with Central Financial Assistance has of been extended/sanctioned up to 31st March, 2017 under the 12th Plan that the same has come to the rescue of the respondent-State.
rt Accordingly, keeping into consideration the fact that the said sanction, as conveyed by the Government of India is up to 31st March, 2017, we direct the respondent-State to complete the entire process of allocation of the projects as expeditiously as possible and no latter than 31st January, 2017, so that the benefits flowing from the Scheme are harvested by the respondent-State. Chief Secretary to the Government of Himachal Pradesh is directed to ensure that the allocation of projects is completed on all counts before 31.01.2017, failing which, he shall be personally liable for non implementation of the directions passed by this Court.::: Downloaded on - 15/04/2017 21:38:50 :::HCHP 36
With these directions, the writ petition is disposed of. Interim order stands vacated. No order as to costs.
(Sanjay Karol) .
Judge (Ajay Mohan Goel) Judge November 30, 2016 (bhupender) of rt ::: Downloaded on - 15/04/2017 21:38:50 :::HCHP