Himachal Pradesh High Court
M/S Rajpur Hydro Power Private Limited vs State Of Himachal Pradesh And Others on 28 January, 2020
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 432 of 2020
Decided on:28.01.2020
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M/s Rajpur Hydro Power Private Limited. ....Petitioner
Versus
State of Himachal Pradesh and others. ....Respondents
____________________________________________________________
Coram
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
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For the petitioner : Mr. K.D.Shreedhar, Sr. Advocate with Mr.
Sameer Thakur, Advocate.
For the respondents
r : Mr. Ashok Sharma, Advocate General with
Mr. Ranjan Sharma and Mr. Desh Raj
Thakur, Additional Advocates General, for
respondents No.1 & 2.
Mr. Nipun Sharma, Advocate, for respondent
No.3.
none for respondent No.4.
Mr. Vikas Chauhan, Advocate, for respondent
No.5.
Mr. Mahender Kumar Kapoor,
Superintending Engineer, Directorate of
Energy, Government of Himachal Pradesh,
New Shimla, present in person.
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Jyotsna Rewal Dua, J.(oral)
Notice in this matter was issued on 23.1.2020. All the parties are represented. In view of nature of the order being passed in this 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/01/2020 20:23:55 :::HCHP 2case, there is no necessity for calling the replies from the respondents.
With the consent of the parties, the petition is taken up for final disposal.
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2(i) Petitioner and respondent No.5 (through their predecessors/ original allottees) have been allocated Rajpur (9.9 MW) and Kareri (5 MW) Hydro Electric Power Projects, respectively.
2(ii) Dispute arose relating to overlapping, domain elevation of respondent No.5's Kareri Project with the domain elevation level of petitioner's Rajpur Project. It has been submitted by learned Senior Counsel for the petitioner that the private respondent is constructing the power house from where the water is discharged back into the river, further downstream of the trench weir of the petitioner's project i.e. from where the petitioner's project extracts water from the river and this would cause detriment to the working of petitioner's project. It has further been submitted that the respondents-officials had themselves found support in the grievances projected by the petitioner in the meeting held on 4.12.2019, where-under following was observed:-
"The location of Power House of Kareri SHEP (5 MW) is downstream to the existing Trench weir of Rajpur HEP (9.9 MW) as such, committee is not in position to confirm about the balance riparian gap (head in meter) between 1236.267m to 1240 m i.e. 3.73 m to be maintained between the projects.
Keeping in view the above, the committee is of the opinion that the water from the TRT of Kareri SHEP(5MW) should be released upstream of existing Trench weir of Rajpur HEP (9.9 MW) in the interest of ::: Downloaded on - 29/01/2020 20:23:55 :::HCHP 3 state as well as cascading development of hydro electric projects.
Further the committee is of the view that the .
project developer of Rajpur HEP (9.9. MW) may obtain the necessary approval from the government of domain change and revised TEC be obtained from DoE as regards to construction carried out by the project developer at site."
2(iii) Learned counsel for respondent No.5 has vehemently refuted the contentions of the petitioner and has submitted that petitioner is itself guilty of changing the domains of its project.
3(i) In respect of overlapping/interference between the projects of the petitioner and respondent No.5, a meeting was called by the respondents-
authorities on 6.1.2020. The proceedings of the meeting held on 6.1.2020 have been placed on record at Annexure P-38, where-under, solutions to the issues involved between the contesting parties were proposed. It was observed therein that the proposed solutions were the most rational approach towards resolving the long pending issues and it was hoped that both the parties will abide by the same so that the two projects are taken forward in a timely manner.
3(ii) The petitioner feeling aggrieved against these proposals, has preferred this writ petition on the grounds that these proposals, in particular proposal no.(iii), whereby workable mechanism was proposed to interlink both schemes from the TRC outfall of Kareri HEP (5 MW) to the water conductor system of downstream Rajpur HEP (9.9 MW) through an ::: Downloaded on - 29/01/2020 20:23:55 :::HCHP 4 Aquaduct, are not suitable to the project of the petitioner and will cause great prejudice to it as much as the working of petitioner's project will always .
depend upon the working of respondent No.5's project and will be at its mercy. It has also been argued that taking advantage of these proposals, respondent No.5 will now start construction of its power house and trench weir at disputed location, which will cause irreparable loss to the petitioner's project. It has also been submitted that due to disputes between these two power developers, respondents-officials had themselves in the past ordered respondent No.5 not to start construction work of Power House of Kareri Project till final decision of the matter.
4. Learned Advocate General on the basis of instructions imparted by Mr. Mahender Kumar Kapoor, Superintending Engineer, Directorate of Energy, Government of Himachal Pradesh, New Shimla, who is present in Court today, has submitted that the proposals/solutions worked out in the proceedings of the meeting held on 6.1.2020 (Annexure P-38) have not been finalized as yet and have to be discussed and deliberated by a Domain Change Committee constituted under the Notification dated 6.8.2013. The Notification has been placed on record.
5. In view of the above submissions, the interest of justice will suffice by disposing of this writ petition by directing respondent No.2 to forward the proposals/minutes of the meeting dated 6.1.2020 (Annexure P-
38) for further deliberations before the Domain Change Committee within a ::: Downloaded on - 29/01/2020 20:23:55 :::HCHP 5 period of one week from today, whereafter the Domain Change Committee shall take a decision in the matter in accordance with law expeditiously, but .
not later than six weeks thereafter. Before taking the decision, the affected parties shall be provided opportunity to present their case before the aforesaid Committee. Ordered accordingly. Till the time decision is taken by the Domain Change Committee, the parties are directed to maintain status quo as of today in respect of nature and construction of the power house and trench weir of their respective Projects or in other words, no further construction of the power house and trench weir of the projects in question be carried out till the decision of Domain Change Committee. Liberty is reserved to both the parties to seek appropriate remedies against the decision of the Domain Change Committee, in case, they still feel aggrieved. It is clarified that the instant writ petition has been disposed of without expressing any opinion on the merits of the case and all rights and contentions of the parties are left open.
With these observations, the writ petition stands disposed of along with pending application(s) if any.
(Jyotsna Rewal Dua) Vacation Judge 28th January, 2020 (reena) ::: Downloaded on - 29/01/2020 20:23:55 :::HCHP 6 .
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