Kalptaru Power Transmission Ltd vs State & Ors on 7 September, 2016

[Cites 29, Cited by 0]

Rajasthan High Court - Jodhpur

Kalptaru Power Transmission Ltd vs State & Ors on 7 September, 2016

This writ petition under Article 226 of the Constitution of India has been filed by the petitioner- company, which is registered under the Companies Act, 1956 having its registered office at 101, Part- III, GIDC Estae, Sector-28, Gandhinagar, Gujarat. The petitioner-company has laid a challenge to the NIT dated 23.10.2015 (Annexure-19) issued by respondent No.3, Rajasthan State Ganganagar Sugar Mills Ltd. (hereinafter referred to as 'the Sugar Mills'), whereby the Sugar Mills invited E-tenders for providing manpower for maintenance and operation of 1500 TCD Sugar Plant with 4.95 MW co-gen power plant and distillery of capacity 30 KLPD with 1.2 MW biomass base power plant. The petitioner- 3 company has also prayed for issuing direction to the Sugar Mills to restrain it from installing and starting 1.2 MW biomass base power plant. The petitioner- company has also prayed for issuing direction to the respondent No.1-State of Rajasthan and respondent No.2 Rajasthan Renewable Energy Corporation Ltd. (for short 'the RREC' hereinafter) to issue directions to the Sugar Mills not to commission 1.2. MW biomass base power generation plant in Chak No.23F Kamnipura, Tehsil Srikaranpur, District Sri Ganganagar. The petitioner-company has also prayed to issue a writ, order or direction restraining the Sugar Mills from using biomass as fuel in its power plant. The petitioner-company has also challenged the communications/ orders/ resolution dated 26.05.2016, 06.06.2016, 24.06.2016 and 01.07.2016 issued by the RREC, whereby it has granted clearance to the Sugar Mills for setting up of 1.2 MW biomass base captive power plant at Chak No.23 F, Kamnipura, Tehsil Srikaranpur, District Sri Ganganagar. In the alternative, the petitioner- company has also prayed for declaring the clauses 10.2 and 12 of Policy for Promoting Generation of 4 Electricity from Biomass-2010 (hereinafter to be referred as 'Policy of 2010') as illegal and has also prayed to strike down the said clauses.

The case set up by the petitioner-company in this writ petition is that the State of Rajasthan formulated a policy for promoting generation of power through non-conventional energy sources on 11.03.1999 known as Policy for Promotion General of Power through Non-conventional Energy Sources, 1999 (for short 'the Policy of 1999' hereinafter). The petitioner-company being interested for setting up of power plant, based on biomass, deliberated with the RREC and the State of Rajasthan through various communications and ultimately persuaded the State of Rajasthan to reserve certain area for ensuring uninterrupted supply of biomass i.e. raw material for generation of electricity and the State of Rajasthan came out with amendment in the Policy of 1999 vide order dated 13.11.2001 and inserted a new sub- clause 8(4) in the said policy, which provides that 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 5 plant shall be allowed within a radial distance of 50 km. of the site of first power plant. It is averred in the petition that based on the said reservation provided by the State Government in the Policy of 1999, the petitioner-company decided to set up two power plants in two districts of State of Rajasthan for generation of electricity from biomass. Permission for setting up power plant in Sri Ganganagar District has been granted by the State of Rajasthan and ultimately, the petitioner-company commissioned power plant based on biomass with a capacity of 7.8 MW on 15.07.2003 at Padampur in Sri Ganganagar district. It is averred in the petition that the policy of 1999 was in operation up to 31.03.2004 and a new Policy for Promoting Generation of Electricity through Non-Conventional Energy Sources, 2004 (for short 'the Policy of 2004' hereinafter) came into operation w.e.f. 25.02.2004 and in clause 16(i) of the Policy of 2004, it has been provided that the projects cleared under policy of 1999 shall continue to enjoy 50 km. reservation facility. It is further averred in the petition that the State Government framed a new policy in the year 6 2010 i.e. the Policy of 2010 and in clause 10.10 of the Policy it is provided that biomass power plants commissioned under the earlier policies of the State Government shall continue to be governed by the relevant policies in operation at the time of commissioning of project.

The petitioner-company claimed in the petition that as per the relevant provisions of the Policies of 1999, 2004 and 2010, in a radius of 50 kms. from the existing biomass base power plant of the petitioner-company, no other biomass base power plant can be permitted to be established. It is averred in the petition that on 02.05.2011, the RREC granted permission to the Sugar Mills to install 4.9 MW biomass base power project within the reserved area of the petitioner at Chak 23F Kamnipura, Tehsil Srikaranpur, District Sri Ganganagar and the action of the RREC was objected by the petitioner-company through a representation, however, when the grievance of the petitioner-company was not redressed, it filed a writ petition before this Court being SBCWP No.8781/2011 challenging the clause 10.2 of the Policy of 2010 and also the notice 7 inviting tenders issued by the Sugar Mills for setting up of biomass base power plant for capacity of 4.9 MW. The said writ petition came to be dismissed by the learned Single Judge in limine vide judgment dated 20.09.2011, against which the petitioner- company preferred an appeal before the Division Bench being D.B.Civil Special Appeal No.1246/2011. In the said appeal, the respondents - State and RREC gave an undertaking to the effect that biomass fuel would be provided to the petitioner-company to the extent of availability of fuel for its existing 7.8 MW biomass base power plant situated in Sri Gangangar district and in view of the said undertaking, the petitioner-company withdrew the writ petition itself seeking liberty to approach the Court again in case any grievance remaining or any occasion arising therefor. The Division Bench of this Court vide order dated 21.08.2012 has allowed the petitioner-company to withdraw the writ petition with the liberty to approach this Court in case any grievance arising hereafter or to take recourse to any other remedy in accordance with law.

It is further averred in the petition that on 8 17.09.2012, the Sugar Mills was granted permission by the RREC to set up of a power plant based on bagasse for a capacity of 4.95 MW because the State Officials were very much aware about the fact that no other power plant based on biomass can come into the area reserved for the petitioner-company and the Sugar Mills was also conscious of this fact and as such the Sugar Mills has set up a power plant of 4.95 MW capacity based on bagasse and the same is running.

The petitioner-company has further averred that it was surprised to come across a notice inviting E-tender dated 23.10.2015 issued by the Sugar Mills, whereby tenders were invited for providing manpower for maintenance of 4.95 MW co- generation power plant and 1.2 MW biomass base power plant.

          It     is   stated   in   the   petition   that   the

petitioner-company         thereafter      made      enquiries

through various representations from the State, RREC and Sugar Mills as to how the power plant based on biomass could be permitted in the area reserved for the petitioner-company, however, no 9 reply has been given to the representation of the petitioner-company by the State and RREC but the Sugar Mills has responded to the representation of the petitioner-company while claiming that setting up of 1.2 MW biomass base power plant is permissible under clause 10.2 of the Policy of 2010. It is claimed by the petitioner-company that as per clause 10.10 of the Policy of 2010, the biomass base power plant commissioned under the earlier policies of the State Government shall continue to be governed by the relevant policies in operation at the time of commissioning of project and, therefore, in the reserved area of the petitioner-company, no biomass base power plant can be established.

It is further averred in the petition that even if it is assumed that as per the clause 10.2 of the Policy of 2010, a biomass base power plant of less than 5 MW capacity can be established in the reserved area of the petitioner-company, then also no permission can be granted to the Sugar Mills to install 1.2 MW biomass base power plant because they are already operating a 4.9 MW biomass base power plant and the combine of both the power 10 plants will be more than 5 MW and the same will be in clear contravention of the clause 10.2 of the Policy of 2010.

It is also averred in the petition, that the petitioner-company is using mainly Mustard Crop Residue (MCR) as biomass, however, the availability of MCR is day by day decreasing because of utilisation of same in brick kilns, briquetting units and other industries in Sri Ganganagar district after the year 2001. With the set up of 1.2 MW biomass base power plant by the Sugar Mills, the availability of biomass fuel will be effected and which may cause huge loss to the petitioner-company because it has to procure the biomass fuel at a high price from other districts.

It is also averred in the petition that the grant of permission by the RREC for setting up of 1.2 MW power plant is in violation of undertaking given by it before the Division Bench in the earlier litigation and the undertaking given by the Sugar Mills to the effect that it will not produce more than 4.9 MW power plant for its sugar mill as well as the distillery.

It is also averred in the petition that the RREC has granted permission to set up 1.2 MW biomass base power plant to the Sugar Mills without following the procedure laid down under the Policy of 2004.

In the alternative, the petitioner-company has also challenged the clauses 10.2 and 12 of the Policy of 2010 while claiming that the said clauses are arbitrary and unreasonable because once by executive action, the State Government has made any person to believe and act upon and make investment, now the State Government cannot retract from the said assurance. It is also contended that clause 10.2 of the Policy 2010 is arbitrary and unreasonable and, therefore, the same are liable to be declared as violative of Article 14 and 19(1)(g) of the Constitution of India.

Reply to the writ petition has been filed by the respondent-State and the RREC and separate reply has been filed on behalf of Sugar Mills. In the reply, the respondents have refuted the claim of the petitioner-company and contended that as per the clauses 10.2 and 12 of the Policy of 2004 biomass 12 base power plant of less than 5 MW capacity can be established in the reserved area of an existing power plant and as such, there is no illegality in granting permission and setting up of 1.2 MW biomass base power plant by the Sugar Mills at Chak 23F, Kamanipura, Tehsil Srikaranpur, District Sri Gangangar. The respondents have also claimed that the set up of 1.5 MW plant by Sugar Mills will not effect the availability of biomass in the district because 4.95 MW power plant of Sugar Mills is running on bagasse produced as by-product of their own plant and not on biomass procured from outside. The contention of the petitioner-company to the effect that the combined capacity of 2 power plants i.e. 4.5 and 1.2 MW will exceed the limit of 5 MW has also been refuted by the respondents while contending that as a matter of fact, 4.95 MW power plant is not a power plant base on biomass and it is power plant base on bagasse, which is the by- product of the Sugar Mills and, therefore, both cannot be combined. The State Government in its reply has also clearly mentioned that there is sufficient biomass available in District Sri Gangangar 13 as well as in State of Rajasthan and in no case the biomass available to the petitioner-company shall be reduced. The Sugar Mills, in its reply, has claimed that as per the clauses 10.2 and 12 of the Policy of 2010, it has every right to establish a 1.2 MW biomass base power plant for its distillery in the reserved area of the petitioner-company. It is also specifically claimed that as the Sugar Mills is running its 4.95 MW power plant base on bagasse, which is a by-product of Sugar Mills, availability of biomass fuel in the area will not be affected in any manner.

In reply to the challenge of the petitioner- company to communications/orders/resolution of RREC dated 26.05.2016, 06.06.2016, 24.06.2016 and 01.7.2016, it is contended that vide letter dated 25.03.2013, the Sugar Mills sought permission from the RREC for setting up of separate 1.2 MW biomass base power plant for captive use at 30 KLPD Multi feed distillery at Chak 25F, Sri Gangangar. RREC vide order dated 10.04.2013 granted approval for setting up of said plant and after its registration, NIT for distillery was finalized and agreement signed to install the distillery with 1.2 MW biomass power 14 plant on 01.08.2013. It is further contended that the permission granted by the RREC for setting up of 1.2 MW biomass was cancelled on 13.07.2015 on account of non-submission of power evacuation plan within the prescribed time. It is contended that the Sugar Mills requested for re-registration of the project while submitting that the power produced by 1.2 MW biomass base power plant will be utilized in the distillery plant for captive use only and power would not be exported, therefore, the power evacuation plan condition is not applicable on this project. It is averred that considering the said representation of the Sugar Mills, RREC re-registered the project and granted application registration number to install the 1.2 biomass base captive power plant. Subsequently, Project registration number vide order dated 26.05.2016 has also been issued and vide order dated 06.06.2016, the RREC granted principle clearance for setting up of 1.2 MW biomass base captive power plant. Thereafter, State Level Empowered Committee constituted under the Policy of 2010 has granted permission to the Sugar Mills to set up 1.2 MW biomass base captive power 15 plant vide order dated 01.07.2016. It is contended that it is wrong to say that the formalities of setting up of 1.2 MW biomass base captive power plant has been completed during the pendency of the writ petition and it is contended that the power plant was set up after necessary registration and the completion of the formalities, however, the registration was withdrawn under misconception with regard to submission of the power evacuation plan and when the said confusion was clear, the competent authority has reissued the application registration number and project registration number and has ultimately granted permission to the Sugar Mills to set up 1.2 MW biomass base captive power plant. It is claimed that there is no illegality in the issuance of the above communications, orders and resolution. It is specifically mentioned in the reply filed by Sugar Mills that the establishment of 1.2 MW biomass base power plant will not effect the availability of biomass fuel for operating the power plant set up by the petitioner as the requirement of the Sugar Mills is mere 16000 MT power per annum and the requirement of the petitioner-company is 16 about 80000 MT per annum, whereas the availability of biomass in Sri Gangangar district is 13.91 lac MT per annum from mustard, gwar and cotton stalk. It is further claimed that the undertaking given by the State and RREC in the earlier litigation to the effect that biomass fuel will be provided to the petitioner- company to the extent of availability of fuel for the existing 7.8 MW biomass base power plant is still intact and, therefore, the apprehension of the petitioner-company regarding the non-availability of biomass fuel for its 7.8 MW biomass base power plant is without any basis.

Mr M.S.Singhvi has argued that the petitioner-company has decided to invest by setting up two biomass base power plants in the State of Rajasthan on the assurance given by the Government that no other power plant can be established in the reserved area of the petitioner- company by inserting clause 8(iv) in the Policy of 1999. The said assurance is further extended by clause 16 of the Policy of 2004 and by clause 10.10 of the Policy of 2010. It is argued that now the action of the respondent Nos. 1 and 2 of allowing the 17 Sugar Mills to set up biomass base power plant in the reserved area of the petitioner-company is unjust and wholly illegal. It is further argued that once the State Government has given assurance for not giving any permission to set up a biomass base power plant in the reserved area of the petitioner- company, then now it cannot turn round and grant permission for setting up a biomass base power plant to the Sugar Mills in the reserved area of the petitioner-company. Therefore, the impugned action of the respondent-State and RREC is violative of principle of promissory and equitable estoppel. In support of the above contention, learned counsel for the petitioner-company has placed reliance on decisions of Hon'ble Supreme Court rendered in State of H.P. & Ors. vs. Ganesh Wood Products & Ors., (1995) 6 SCC 363 and S.V.A. Steel Re- Rolling Mills Ltd. & Ors. vs. State of Kerala & Ors., (2014) 4 SCC 186.

It is further argued by Mr Singhvi that in terms of clause 10.2 read with clause 10.10 of the Policy of 2010, it is clear that biomass base power plant commissioned under the earlier policies of the 18 State Government would be required to be governed by the policies in operation at the time of commissioning of the projects. The Policies of 1999, 2004 and 2010 specifically provide that in an area of radius of 50 km. from the existing biomass base power plant, no other biomass base power plant can be established.

It is further argued by the learned counsel for the petitioner that though the clause 10.2 provides that any biomass base power plant upto the 5 MW capacity can be established in the reserved area of the existing power plant but the clause 10.10 provides that the existing plant shall continue to be governed by the relevant policies in operation at the time of commissioning of the project. Similarly, clause 12(b) also provides that the reservation area of already commissioned power plant shall continue to be governed by the respective policy under which the same is registered and harmonious construction of the above provisions will lead to the conclusion that the area reserved for the existing power plant commissioned in the earlier policy remains intact and in that area no other biomass base power plant 19 can be allowed to be established. In support of the above contentions, learned counsel for the petitioner has placed reliance on decisions of Hon'ble Supreme Court rendered in The J.K.Cotton Spinning & Weaving vs. The State of Uttar Pradesh & Ors., AIR 1961 SC 1170; M.V.Javali vs. Mahajan Borewell & Co. & Ors., (1997) 8 SCC 72 as well as the decision of this Court in Hanuman Prasad Choudhary vs. R.S.E.B., Jaipur reported in RLR 1985 842.

Learned counsel for the petitioner has further argued that clause 10.10 of the Policy of 2010 is a special provision, whereas clause 10.2 is a general provision. It is argued that the provision of clause 10.10 is special as it deals with a particular purpose, whereby the area reserved for an existing biomass base power plant has been kept intact, whereas clause 10.2 is general in nature, which deals with the whole class, rather than to a part. He has placed reliance on definition of word 'General' given in law dictionary Advanced Law Lexicon. He has also placed reliance on decision of Hon'ble Supreme Court rendered in Meet Singh vs. State 20 of Punjab, (1980) 3 SCC 291 as well as of decision of Court of Appeal rendered in Eastbourne Corporation vs. Fortes Ice Cream Parlour (1955) Ltd. reported in [1959] 2 All.E.R. Mr Singhvi has further argued that as the rule of construction is well settled that when there are in an enactment two provisions, one is general and another is specific, then the general has to yield to the specific.

Learned counsel for the petitioner-

company has further argued that respondents - State and RREC in the earlier litigation gave undertaking before this Court that the availability of biomass fuel to the existing 7.8 MW plant of the petitioner-company in Padampur, District Sri Gangangar shall not be adversely affected and they will ensure the availability of sufficient biomass fuel for the power plant of the petitioner-company. However, now the RREC has granted approval for setting up of 1.2 MW biomass base power plant to the Sugar Mills in the reserved area of the company and that will affect the supply of sufficient biomass fuel to the plant of the petitioner-company and, 21 therefore, the respondents - State and RREC are acting in violation of the undertaking given by them before this Court.

It is further contended that the Sugar Mills in its reply to the rejoinder filed in D.B.Civil Special Appeal No.1246/2011, gave a specific undertaking to the effect that it will not generate more than 4.9 MW electricity from its power plant, however, with the setting up of 1.2 MW biomass base power plant, it is going to generate more than 4.9 MW electricity and, therefore, the said action of the Sugar Mills is clearly in violation of the undertaking given by it before this Court.

In the alternative, learned counsel for the petitioner-company has argued that the provisions of clauses 10.2 and 12 of the Policy of 2004 are arbitrary as they give unbridled powers to the authorities to grant permission to establish a biomass base power plant of less than 5 MW capacity in the reserved area of an existing power plant. It is submitted that no guidelines have been issued in respect of setting up of power plants of less than 5 MW within the reserved area. Hence, viewing 22 from any angle, it is clearly established that provisions contained in clauses 10.2 and 12 of the Policy of 2010 are highly arbitrary, unreasonable and violative of Articles 14 and 19(i)(g) of the Constitution of India.

In support of above contentions, learned counsel for the petitioner has placed reliance on decisions of Hon'ble Supreme Court rendered in State of Maharashtra vs. Mrs Kamal Sukumar Durgule & Ors. reported in 1985 SC 119 and Cellular Operators Association of India & Ors. vs. Telecom Regulatory Authority of India & Ors., reported in 2016 SCC Online SC 486.

Lastly, learned counsel for the petitioner has prayed that the writ petition may kindly be allowed and the reliefs as prayed in the writ petition may kindly be granted to the petitioner-company.

Per contra, Mr Rajendra Prasad senior counsel appearing on behalf of respondent Nos. 3 and 4 and Dr P.S.Bhati, AAG for respondent Nos. 1 and 2 have argued that there is no illegality in the action of the respondents in allowing permission to the Sugar Mills for establishing 1.2 MW biomass 23 base power plant at Chak No.23F Kamnipura, Tehsil Srikaranpur, District Sri Ganganagar. It is submitted that as per the provisions of clause 10.2 of the Policy of 2004 any biomass base power plant of less than 5 MW capacity can be established in the reserved area of the existing power plant and, therefore, challenge of the petitioner to set up 1.2 MW biomass base power plant by the petitioner-company is not tenable. It is also argued that a joint reading of clauses 10.2, 10.10, 10.11 and 12 of the Policy of 2004 clearly establish that there is no bar in establishing a biomass base power plant of less than 5 MW capacity in the reserved area of existing power plant.

It is also argued that as per the principle of harmonious construction, effect has to be given to all the provisions and for that any provision of the statute should be construed with reference to the other provisions, so as to make it workable. It is submitted that a joint reading of clauses 10.2, 10.10, 10.11 and 12 of the Policy of 2004 makes it clear that while keeping the area of the existing power plant reserved, it has been provided that a 24 biomass base power plant of less than 5 MW capacity can be established in reserved area of existing power plant.

Learned counsel for the Sugar Mills has submitted that as a matter of fact clauses 10.2 and 12(b) of the Policy of 2004 are specific provisions, whereas clause 10.10 is a general provision and as per rule of harmonious construction, a special provision has to give preference over the general provision.

It is further argued that if the contention of the petitioner-company to the effect that as per the clause 10.10 of the Policy of 2004, no power plant can be established in reserved area of an existing power plant, is accepted, then the same will lead to the absurdity because then a biomass base power plant of less than 5 MW capacity can be established in a reserved area of a power plant established under the Policy of 2010 but cannot be established in a power plant established in the earlier policies i.e. Polices of 1999 and 2004. It is submitted that no distinction can be made between the existing or the new power plants under the 25 Policy of 2010 and such classification is not permissible under the law. In support of the above contentions, learned counsel for the respondent Nos.3 and 4 has placed reliance on decisions of Hon'ble Supreme Court rendered in The State of Gujarat & another etc. vs. Patel Ramjibhai Danabhai and others etc., reported in AIR 1979 SC 1098; State of Rajasthan vs. Gopi Kishan Sen, AIR 1992 SC 1754 and M/s British Airways Plc vs. Union of India & Ors., AIR 2002 SC 391.

It is further argued on behalf of the respondents that there cannot be estoppal against the law or public policy. It is also argued that the State Government after great deliberation has enacted the Policy of 2010 for promoting the generation of electricity from biomass base power plant and has specifically provided that a biomass base power plant of less than 5 MW capacity can be established in the reserved area and the said provision cannot be said to be unreasonable in any manner as it is enacted only to achieve the object of the policy. It is further argued that a statutory body cannot be estopped on the basis its previous policies 26 if the new policy is framed looking to the need of the present time. In support of the above contentions, learned counsel for the respondents has placed reliance on decision of Hon'ble Supreme Court in The Rajasthan State Industrial Development and Investment Corporation vs. Subhash Sindhi Co-operative Housing Society Jaipur & Ors., AIR 2013 SC 1226.

Learned counsel for the respondents have further claimed that availability of the biomass fuel in the area of the Gangangar district is sufficient to cater the need of the petitioner-company's plant. It is further submitted that the State Government in earlier litigation had given assurance for supply of biomass fuel to the petitioner-company and the said undertaking is still in force and in view of that the petitioner-company cannot claim that with the set up of biomass base power plant of 1.2 MW capacity by the Sugar Mills, availability of biomass fuel will be effected.

Learned counsel for the respondents has further submitted that the contention of the petitioner-company to the effect that with the set up 27 of 1.2 MW biomass base power plant by the Sugar Mills, the capacity of the power plant of the respondent-Sugar Mills will go more than 5 MW, is also not tenable because 4.95 MW power plant is exclusively for the Sugar Mills, which is running on bagasse and not on biomass fuel, whereas, 1.2 MW biomass base power plant is for the distillery and, therefore, both of them cannot be clubbed.

Learned counsel for the respondents has further argued that in the Policy of 2010, the State Government has made special provision for promotion of development Prosopis-Juliflora/other energy plantation of Government for use as supplementary fuel in biomass power plant, wherein the power producers will be provided barren development land, waste land, panchayat land and degraded forest land for producing Prosopis-juliflora and from the said policy of the Government, it is clear that the petitioner-company cannot complain about the non-availability of the fuel for the purpose of running its power plant.

Learned counsel for the respondents have further submitted that the respondent - State and 28 RREC and the Sugar Mills have not flouted the undertaking given by them before this Court in earlier litigation. The petitioner-company has never complained to the State Government or the RREC about the non-availability of biomass fuel for its existing 7.8 MW biomass base power plant situated at Padampur. It is further argued that in the reply to the rejoinder filed on behalf of the Sugar Mills in D.B.Civil Special Appeal No.1246/2011, the Sugar Mills gave an undertaking that it will not generate more than 4.9 MW electricity from its biomass base project. The said undertaking given by the Sugar Mills has not been violated in any manner as the Sugar Mills is not generating the electricity of more than 4.9 MW from the existing power plant of that capacity. It is further argued that Sugar Mills has never given any undertaking to the effect that it will set up any separate power plant for its distillery and as such it cannot be said that the respondents have acted contrary to the undertaking given by them before this Court in earlier litigation.

In response to the argument of the learned counsel for the petitioner regarding the 29 unconstitutionality of clauses 10.2 and 12 of the Policy of 2004, learned counsel for the respondents has argued that it is not open for the petitioner- company to challenge the validity of the said clauses because the earlier writ petition filed by it challenging the validity of the provisions of clause 10.2 of the Policy of 2010 has been withdrawn by it. It is also argued that though the Division Bench has granted liberty to the petitioner-company for filing fresh writ petition but the said liberty was limited in respect of any grievance arising in future and that will not mean that the petitioner-company can again challenge the validity of the provisions of the Policy of 2004. It is argued that the petitioner-company is estopped from challenging the provisions of Policy of 2010 because it withdrew its challenge of the same provisions in the earlier litigation.

It is also argued that the provisions of clauses 10.2 and 12 of the Policy of 2010 cannot be said to be arbitrary or unreasonable in any manner because before granting any permission for setting up of a power plant even of less than 5 MW capacity, applicant has to comply with the provisions of the 30 Policy of 2010, which specifically provides that it has to submit biomass assessment report, detailed project report etc. and the RREC after evaluating the availability of biomass assessment report in the area concerned, will only allow to set up any such power plant of less than 5 MW capacity. It is submitted that sufficient guidelines and checks have been provided in the Policy of 2004 and, therefore, it cannot be said that the said policy is arbitrary or unjust in any manner.

Lastly, learned counsels for the respondents have submitted that the petitioner- company cannot claim monopoly and cannot ask for direction for restraining the Sugar Mills from setting up of a biomass base power plant of less than 5 MW capacity in the area reserved for it, therefore, the writ petition be dismissed.

Heard learned counsel for the rival parties and carefully perused the material available on record.

The State Government with the intention to promote generation of power through non- conventional energy sources has formulated the 31 Policy of 1999. One of the non-conventional energy sources is biomass and it finds place in the said Policy. The Government of Rajasthan has extended certain incentives to the eligible power producers, who intended to set up power plant based on non- conventional energy source. Clause 8(iv) of the policy provides that no other biomass base power plant shall be allowed within a radial distance of 50 km. of the site of first power plant. Policy of 1999 was in force upto 31.03.2004. Thereafter, a new Policy of 2004 has been implemented from 25.10.2004. In the said Policy, clause 16 is related to biomass projects, wherein special concession/condition for biomass projects has been provided. Clause 16.1 provides that the area of reservation for a biomass base power plant of aggregate capacity of 7.5 MW will be 40 km., which means that no other biomass power plant shall be allowed within radial distance of 40 km. of that power plant, however, in clause 16.1 proviso (a) says that the State Government shall have the right to reduce reservation area not to less than 30 kms. after reviewing the availability of biomass fuel and 32 after satisfying itself that such reduction in area reservation would not affect the sustainability of the existing plants. It also says that such review shall not be held before 2011. Proviso (b) to clause 16.1 says that the area reserved for the projects cleared under the policy of 1999 shall remain the same i.e. 50 km. However, proviso (c) to the clause 16.1 provides small capacity biomass based gasifiers under any programme of State Government/ Government of India through RREC or otherwise would be allowed to be set up within the reserved area. Proviso (d) to clause 16.1 empowers RREC to reduce or increase the reservation area if any eligible producer desires to install lower/higher capacity plant or wants to enhance the capacity of power plant above 7.5 MW.

On 26.02.2010, Policy of 2010 came into operation. Clause 10.2 of the said Policy provides that a biomass 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. Vide clause 12, the areas reserved for biomass power projects has been specified on the 33 basis of capacity of the said projects. In the said clause, different area has been specified for different capacity of biomass power projects. Proviso (b) to clause 12 specifically provides that the reservation of area of biomass power plant commissioned under earlier policy shall also be governed by the provisions of clause 12.

So from the above analysis, it can be gathered that with the implementation of every new policy, the provision regarding reservation of area of a power plant kept changing by relaxing certain restrictions. In the policy of 2004, small biomass base gasifiers were permitted to be established in reserved ara vide clause 16.1 (c). Vide clause 16.1

(d), RREC was empowered to reduce of decrease the area of reservation. In the Policy of 2010, as per clause 10.2 a biomass base power plant of less than 5 MW capacity can be established in reserved area. It seems that State Government has introduced the said relaxations looking to the need of time.

In the light of the above, now I will examine the relevant provisions of the Policy of 2010 to determine whether a biomass base power plant 34 commissioned under the Policy of 1999 enjoys the facility of reservation of area as per the provisions of the Policy of 1999 or is entitled to enjoy the facility of reservation as per the provisions of Policy of 2010. The relevant provisions of the Policy of 2010 are as under:

"10.2 Provided that Biomass Power Project of less than 5MW 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 5MW. 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.

10.11 The Biomass Power Plants registered under earlier Policies but not covered under clause 10.10 shall be treated as re- registered under this Policy and will be given a new registration number according to the priority under earlier Policies. Provided that the total time period for the various activities shall not be more than as specified in clause 10.7 to 10.9.

12. Reservation of Area for Biomass Power Plants:

In order to assure sustainability of a Biomass Power Project and to avoid unhealthy 35 competition amongst various Biomass Power Projects, no other Biomass Power Project shall be permitted within the reserved area of existing/approved/earlier registered projects as specified hereunder: Sr.No. Capacity in MW Area Reserved (Radius in km) 1 5 60 2 More than 5 and up to 7.5 75 3 More than 7.5 and up to 10 80 4 More than 10 and up to 12.5 85 5 More than 12.5 and up to 15 90 6 More than 15 and up to 20 100 Provided that:

(a) The State Government shall have the right to review the biomass availability and accordingly reserves the right to change in the reservation area; it would be assessed at the level of State Govt. that such change in area reservation would not adversely affect the sustainability of existing/approved/earlier registered projects.

(b) The reservation of area for Biomass Power Plant(s) commissioned/approved and registered under earlier Policies shall also be governed by the provisions as specified above provided that such reservation of already commissioned/approved and registered power plant commissioned/approved and registered under any Policy. In the event of overlapping of reserved areas, the area reservation shall continue to be governed by the respective Policy under which the same is registered."

Clause 10.2 of the Policy of 2004 provides 36 that a 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, whereas, clause 10.10 of the Policy of 2004 provides that the power plant commissioned under the earlier policies shall be governed by the policies, which were in operation at the time of commissioning of the said power plant. However, proviso (b) to the clause 12 provides that the reservation of area for biomass base power plant commissioned/approved and registered under earlier Policies shall also be governed by the provisions of clause 12.

Now at one hand, clause 10.2 allows setting up of power plants of less than 5 MW capacity in the reserved area, whereas on the other hand, clause 10.10 provides that the biomass power plant commissioned under the earlier policies shall be governed by the relevant policies, which were in operation at the time of commissioning of such power plants. However, proviso (b) to clause 12 further says that the reservation of area of a biomass power plant commissioned under the earlier policies will be governed by the clause 12. From the 37 above analysis, it appears that there is little conflict between the provisions of clause 10.10 with 10.2 and proviso (b) to clause 12 of Policy of 2010.

Rule of interpretation says that a statute must be read as a whole and the provisions of a statute should be construed with reference to other provisions in the same statute so as to make consistent enactment of the whole statute. If the court finds that there is some inconsistency between the two provisions of the same statute, then it is the duty of the court to remove the said inconsistency between the two provisions of the same statute, so both the provisions can be made workable.

Another rule of interpretation is this that in case of a doubt, it is always safe to take aid of the object and purpose of the statute or the spirit behind it. If there is any doubt about the words of a statute, then the interpretation which is harmonious with the subject of the enactment and the object, which the statute makers as a view should be adopted.

The Hon'ble Supreme Court in Utkal Contractors & Pvt. Ltd. & Ors. vs. State of 38 Orissa & Ors., reported in (1987) 3 SCC 279 has held as under:

"A statute is best understood if we know the reason for it. The reason for a statute is the safest guide to its interpretation. The words of a statute take their colour from the reason for it. How do we discover the reason for a statute? There are external and internal aids. The external aids are Statement of Objects and Reasons when the Bill is presented to Parliament, the reports of Committees which preceded the Bill and the reports of Parliamentary Committees. Occasional excursions into the debates of Parliament are permitted. Internal aids are the preamble, the scheme and the provisions of the Act. Having discovered the reason for the statute and so having set the sail to the wind, the interpreter may proceed ahead. No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important. It is again important to remember that Parliament does not waste its breath unnecessarily. Just as Parliament is not expected to use unnecessary expressions, Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for.

Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done.

Parliament may not be assumed to legislate unnecessarily."

In Sultana Begum vs. Prem Chand Jain, reported in (1997) 1 SCC 373, the Hon'ble Supreme Court has held as under:

"10.....That being so, the rule of interpretation requires that while interpreting two inconsistent, or, obviously repugnant provisions of an Act, the courts should make an effort to so interpret the provisions as to harmonise them so that the purpose of the Act may be given effect to and both the provisions may be allowed to operate without rendering either of them otiose.

11. The statute has to be read as a whole to find out the real intention of the legislature.

12. In Canada Sugar Refining Co. vs. R. Lord Davy, 1898 AC 735, observed:

"Every clause of a statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter."

13 This Court has adopted the same rule in M. Pentiah v. Muddala Veeramallappa, AIR 1961 SC 1107; Gammon India Ltd. v. Union of India, AIR 1974 1 SCC 596; Mysore SRTC 40 v. Mirja Khasim Ali Beg, (1977) 2 SCC 457; V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99; Punjab Beverages (P) Ltd. v. Suresh Chand, (1978) 2 SCC 144; CIT v. National Taj Traders, (1980) 1 SCC 370; Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B., AIR 1962 SC 1044 and J.K.Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.P., AIR 1961 SC 1170.

14. This rule of construction which is also spoken of as "ex visceribus actus" helps in avoiding any inconsistency either within a section or between two different sections or provisions of the same statute.

15. On a conspectus of the case-law indicated above, the following principles are clearly discernible:

(1) It is the duty of the courts to avoid a head-on clash between two sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them.

(2) The provisions of one section of a statute cannot be used to defeat the other provisions unless the court, in spite of its efforts, finds it impossible to effect reconciliation between them.

(3) It has to be borne in mind by all the courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of "harmonious construction".

(4) The courts have also to keep in mind that an interpretation which reduces one of the provisions as a "dead letter" or "useless lumber" is not 41 harmonious construction.

(5) To harmonise is not to destroy any statutory provision or to render it otiose."

In Commissioner of Income Tax vs. Hindustan Bulk Carriers, reported in (2003) 3 SCC 57, the Hon'ble Supreme Court has held as under:

"18. The statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute.

19. The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with other parts of the law and the setting in which the clause to be interpreted occurs. (See R.S.Raghunath v. State of Karnataka (1992) 1 SCC

335). Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between two different sections or provisions of the same statute. It is the duty of the court to avoid a head-on clash between two sections of the same Act. (See Sultana Begum v. Prem Chand Jain (1997) 1 SCC 373).

20. Whenever it is possible to do so, it 42 must be done to construe the provisions which appear to conflict so that they harmonise. It should not be lightly assumed that Parliament had given with one hand what it took away with the other.

21 The provisions of one section of the statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them.

Thus a construction that reduces one of the provisions to a "useless lumber' or 'dead letter' is not a harmonised construction. To harmonise is not to destroy."

In the light of the above principles laid down by the Hon'ble Supreme Court, while interpreting the provisions of Policy of 2010, we have to keep in mind the object for which the Policy of 2010 is framed. The object of the Policy of 2010 is reflected in the name of the policy itself, which reads as under:

"POLICY FOR PROMOTING GENERATION OF ELECTRICITY FROM BIOMASS, 2010"

The objectives of the policy has been specified in clause 1 of the Policy of 2010, which reads as under:

"1. Objectives:

1.1 Whereas with a view to promote generation of power from non-conventional 43 energy sources, Government of Rajasthan promulgated a Policy on 11.3.1999.This Policy known as "Policy for Promoting Generation of Power through Non-Conventional Energy Sources".

1.2 And whereas, among the non-

conventional sources of energy, Solar, Wind, MiniSmall hydel and Bio-mass have good potential for generation of electricity in Rajasthan and after having gathered the experiences from the earlier Policies and identifying the impediments in the process of generation of electricity from non-

conventional sources, State Government has issued a comprehensive Policy for Promoting Generation of Electricity through Non- Conventional Energy Sources, known as Policy-2004.

1.3 And whereas, clause 2.2 of Policy 2004 provides for supersession of the same. 1.4 And whereas, the new Central Electricity Act 2003 has come into effect from 10.6.2003 and whereas, in exercise of the powers conferred on Rajasthan Electricity Regulatory Commission by Section 42, Section 61 and Section 62 read with Section 181 of the Electricity Act. 2003 (No. 36 of 2003), the Rajasthan Electricity Regulatory Commission has issued RERC MYT Tariff Regulations, 2009 vide notification dated January 23, 2009. 1.5 And whereas, in accordance with the provisions of Electricity Act 2003 and Tariff Policy, RERC has determined the tariff for the mustard husk based Biomass Power Plant in the state to be set up in the year 2009-10 and 2010-11 for sale to distribution 44 companies, the State Government, has decided to issue a comprehensive Policy for Generation of Electricity from Biomass which offers solution to various problems faced by Developers, Investors, IPP's and utilities."

From the above, it is clear that the Policy of 2010 is framed with the sole objective of promoting generation of electricity from biomass. If the contention of the petitioner-company to the effect that 50 kms. area in radius is exclusively reserved for the petitioner-company and no other power plant of any capacity can be set up in the said reserved area, is accepted, then it may defeat the very object of the Policy of 2010, which is formulated with the intention to promote the generation of electricity from biomass and it will result in reducing the provisions of clause 10.2 as a dead letter.

As observed earlier, there is little conflict between the provisions of clause 10.10 with clause 10.2 and proviso (b) to clause 12 of Policy of 2010, however, the same can be resolved by principle of harmonious construction so that each provision may operate without entering into the field of other. 45 Therefore, it is held that the power plants commissioned under the Policy of 1999 are to be governed by the provisions of Policy of 1999 except the provisions of reservation of area and the reservation of area for biomass power plant is to be governed by clause 12 of the Policy of 2010 and, therefore, any biomass base power plant of less than 5 MW capacity can be set up within the reserved area.

Another argument of the learned counsel for the petitioner-company to the effect that with the setting up of 1.2 MW power plant by the Sugar Mills, the availability of biomass fuel will adversely affected, is also not tenable for the following reasons:

(a) The undertaking given by the RREC in the earlier litigation to the effect that biomass fuel will be provided to the petitioner-company to the extent of availability of fuel for existing 7.8 MW biomass base power plant is still in force and there is no iota of evidence on record, which suggests that the petitioner-company has ever complained or informed the State Government about the scarcity of biomass 46 fuel in Sri Ganganagar district or ever approached the State Government with the contention that the undertaking given by it is being flouted.

(b) That it is to be noticed that though in the Policy of 2009, there is no provision to the effect that the power producers registered under the Policy of 1999 were allowed to use the conventional fuel to ensure generation of power in the event of reduced biomass availability, however, in the Policy of 2004, a specific provision 16.2 has been inserted, whereby the power producers were allowed to use conventional fuel up to 30% and 25% based on the capacity of their power plants. Similarly, in Policy of 2010, again the power producers are allowed to use conventional fuel such as coal, lignite, natural gas and municipal waste up to 15% during the lean period in some years. It is also provided that the Mining Department shall arrange to make lignite available to the biomass power producers on priority rate mechanism. It is also important to note here that in the Policy of 2010, clause 17 is devoted for promotion of development of prosopis-juliflora along with other energy plantation on Government land for 47 use as supplementary fuel in biomass power plants.

The Government barren land, Panchayat land and the forest land are provided to the power producers for plantation of prosopis-juliflora/other energy plantation.

From the above, it is clear that the State Government while formulating the Policy of 2010 has kept in mind the fact that in the coming times, there may be shortage of biomass fuel and, therefore, it has allowed the power producers to use conventional fuel in the lean period and has also proposed to offer certain incentives if a power producer uses prosopis-juliflora and other plantation as supplementary fuels in biomass power plants. The petitioner-company can meet the deficiency in availability of biomass fuel by using conventional fuel in the lean period or can use supplementary fuel by taking advantage of clause 17 of Policy of 2010.

(c) The power plant of Sugar Mills of 4.95 MW, commissioned in the year 2012 is allowed by the RREC vide order dated 17.09.2014 to be run on the bagasse, a by-product of Sugar Mills and no biomass is being used in the said plant, it cannot be 48 said that the setting up of 1.2 MW power plant by the Sugar Mills, the availability of biomass will be adversely affected.

I have considered the argument of the learned counsel for the petitioner to the effect that before granting sanction to the Sugar Mills for setting up of a 1.2 MW power plant, the respondent- State and RREC have not followed the procedure laid down under the Policy of 2010, however, I do not find any merit in the said argument because the RREC registered the project of the Sugar Mills for setting up of 1.2 MW biomass base power plant for captive use on 10.04.2013, a copy of which is annexed with the reply filed on behalf of respondent- Sugar Mills. As per the Sugar Mills, the said registration was cancelled vide letter dated 13.07.2015 on account of non-submission of power evacuation plant within the prescribed time i.e. four months from the date of interim approval, however, when the respondent-Sugar Mills has apprised the RREC that since 1.2 MW power plant is captive power plant, there is no need to submit power evacuation plant and after taking into consideration 49 the said aspect of the matter, the RREC has re- registered the biomass power plant of the Sugar Mills and granted approval for setting up of said captive power plant.

More over, so far as the petitioner-

company is concerned, this Court is of the opinion that it is not entitled to question the approval granted to the Sugar Mills to set up 1.2 MW biomass based power plant because the Government has already assured the petitioner-company regarding adequate supply of biomass fuel for the power plant of the petitioner-company situated in Gangangar district. Hence, the challenge of the petitioner- company to the communications/ orders/ resolution dated 26.05.2016, 06.06.2016, 24.06.2016 and 01.07.2016 is bereft of merit and is rejected.

I have also considered the argument of learned counsel for the petitioner-company that the respondents - State, RREC and Sugar Mills have acted contrary to the undertaking given by them in the earlier litigation. State and RREC have filed the following undertaking before Division Bench of this Court:

"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."

The Sugar Mills filed the following reply to the rejoinder in D.B.Civil Special Appeal No.1246/2011:

"Counsel for the respondent no.3 most respectfully submits as under:

1. That the permission granted by Rajasthan Renewable Energy Corporation Ltd. i.e. respondent no.2 to respondent no.3 for setting up 4.9 mega watt capacity plant was validly based on the Policy for Promoting Generation of Electricity From Biomass, 2010. The petitioner has raised unnecessary bogey in the rejoinder that the capacity of the power plant would be 5.5 Mega Watt. It is respectfully submitted that the policy of 2010 permits not only less than 5 Mega Watt capacity plant but also more than 5 Mega Watt capacity plant with the permission of R.R.E.C. Within the reserved area of any plant of capacity of 5 Mega Watt. As per Detailed Project Report on Expansion Modernization and Relocation of 4.9 Mega Watt Biomass based cogen power plant for Rajasthan State Ganganagar Sugar Mills, Sri Ganganagar vide Annexure-R/3/4 though installed capacity of sugar plant TG set has been mentioned to be 5500 Kilo Watt yet gross power generation is mentioned to be 51 4900 Kilo Watt meaning thereby that the actual capacity will not be more than 4.9 Mega Watt. The respondent no.3 also undertakes not to generate more than 4.9 Mega Watt electricity from its Biomass based project. Moresoever R.R.E.C. has accorded power registration number based on the detailed project report. In these circumstances neither the respondent no.3 intends to generate more than 4.9 Mega Watt electricity from its cogen plant nor can any fault be founded with the permission accorded by R.R.E.C. because it is clearly mentioned that power required for sugar plant is 2100 kilo watt and power required for distillery is 700 kilo watt and thus total power consumed for sugar and distillery would be 2800 kilo watt and thus surplus power for export would be only 2100 kilo watt.

2. That during a season the cogen power plant proposed to be set up by respondent no.3 would be using Bagasse i.e. residue of sugar cane after extraction of juice from its own internal sources and would not be depending on the outside sources. It is only during the off season that biomass would be needed from external sources. The petitioner cannot claim monoply based on a policy of 1999 or 2004 which was for a limited period and was capable of being superseded and stands superseded by policy of 2010. When during the season period cogen power plant proposed to be set up by respondent no.3 would be using Bagasse i.e. residue of sugar cane after extraction of juice from its own 52 internal sources and would not be depending on the outside sources, it is not a case with facts and figures set up by the petitioner appellant that its plant would become non- viable and would come to a close because for the substantial period of the year the petitioner's power plant would be using fuel from its own internal sources i.e. Baggasse (residue of sugar cane after extraction of its juice). Thus the writ petition is devoid of any force.

It is, therefore, humbly prayed that the special appeal may kindly be dismissed maintaining the dismissal of the writ petition."

From the above, it appears that the State and the RREC in the above undertaking had given assurance for sufficient supply of biomass fuel to the 7.8 MW biomass base power plant of the petitioner- company situated at Padampur, District Sri Ganganagar. The Sugar Mills has essentially given an undertaking before the Court that it will not generate more than 4.9 MW electricity from its power plant of the same capacity. In both the undertakings, it is nowhere mentioned that the Sugar Mills will not set up any power plant of less than 5 MW capacity in the reserved area of the petitioner-company. The petitioner-company has 53 failed to demonstrate that it has ever complained to the State or the RREC about the non-availability of sufficient biomass fuel for its power plant or the State Government has failed to provide sufficient biomass fuel to it as per the undertaking given by it before this Court. Hence, the argument of the learned counsel for the petitioner-company that the respondents - State, RREC and Sugar Mills have acted in violation of the undertaking given by them before this Court, is not acceptable. Hence, rejected.

It is also to be noticed that vide additional affidavit submitted on 12.08.2016, the Sugar Mills has contended that it has floated Notice Inviting Bid for establishing multifeed distillery plant with biomass base captive power plant of 1.2 MW capacity at Chak 23F Kamnipura, Sri Gangangar on 25.05.2013 on the E-tendering System of Government of Rajasthan. It is further stated in the additional affidavit that the respondents executed contract agreement dated 01.08.2013 with M/s KBK Chem Engineering Private Ltd., Pune for establishing the aforesaid plants. A copy of the said agreement 54 has also been annexed with the additional affidavit. It is submitted on behalf of the Sugar Mills that though it issued an advertisement for setting up of a 1.2 MW biomass base power plant on 25.05.2013 but the petitioner-company has not challenged the same immediately and when a power plant of 1.2 MW is ready for operation, this writ petition has been filed at a belated stage.

A reply to the said additional affidavit has been filed by the petitioner-company, wherein it is stated that so far as the notice of inviting bid of the Sugar Mills is concerned, the petitioner-company has no knowledge about the same because as per its knowledge, the notice inviting bid dated 25.05.2013 has not been published in any news paper and published in E-tendering System of Government of Rajasthan, however, as the petitioner-company is not the aspirant to apply pursuant to the said notice, it cannot be expected from it to aware of the said notice inviting tender published on the E-tendering System of Government of Rajasthan.

On the basis of above, learned counsel for 55 the petitioner-company has submitted that there is no delay in filing the writ petition and the petitioner- company has filed this writ petition immediately after it came to know about the installation of new the power plant.

Having considered the above facts, this Court is of the opinion that the petitioner-company has challenged the NIT dated 23.10.2015 in this writ petition, which is also published on the website of Sugar Mills. Vide Annexure-R/12 dated 25.05.2013, the Sugar Mills has invited tenders though through the E-tendering System of Government of Rajasthan and if the petitioner-company has access to the E- tender dated 23.10.2015, it is unbelievable that it has no knowledge about the notice Annexure-R/12, whereby the Sugar Mills has invited applications from the interested parties for setting up of multifeed distillery plant and biomass base captive plant of 1.2 MW capacity. Therefore, the action of petitioner-company of challenging the setting up of biomass base power plant of 1.2 MW capacity by Sugar Mills is suffering from delay.

So far as the alternative argument of the learned counsel for the petitioner-company regarding the validity of clauses 10.2 and 12 of the Policy of 2010 is concerned, it is not out of the subject to mention here that in the earlier writ petition being SBCWP No.8781/2011, the petitioner had not challenged the validity of the clause 12 of the Policy of 2004 and had only challenged the validity of clause 10.2. Though the petitioner- company had opportunity to challenge the validity of clause 12 of Policy of 2004 in the said writ petition, but it had not challenged the same, therefore, now the petitioner-company is estopped from challenging the validity of clause 12 of the Policy of 2004.

In respect of validity of clause 10.2, it is to be noted that the writ petition challenging the validity of clause 10.2 of Policy of 2010 was dismissed by the learned Single Judge vide judgment dated 20.09.2011, however, before the Division Bench, the petitioner-company withdrew the writ petition on the basis of undertaking given by the State and RREC to the effect that adequate supply of the biomass fuel would be provided to the petitioner- 57 company for its plant situated in Padampur, District Sri Gangangar. The Division Bench allowed the withdrawal of the writ petition to the petitioner- company with liberty to approach this Court again only in respect of any grievance arising hereafter. It is noted that in the earlier writ petition, the main grievance of the petitioner- company was about the deficiency in availability of biomass fuel with the setting up of 4.9 MW biomass base power plant by Sugar Mills. In the present petition also, the grievance of the petitioner is the same and looking to this aspect of the matter, in my opinion, the liberty granted to the petitioner- company by the Division Bench was only up to the extent of challenging any action taken by respondents State and RREC or any other person in future which may affect the availability of biomass fuel to the petitioner-company's plant situated in Sri Gangangar district. There is no liberty to the petitioner-company to again challenge the validity of the clause 10.2 of the Policy of 2010.

It is also to be noticed that though the Division Bench allowed the petitioner-company to 58 withdraw the writ petition, but the judgment dated 20.09.2011 passed by the learned Single Judge in SBCWP No.8781/2011 upholding the validity of the provisions of clause 10.2 of the Policy of 2010 has not been set aside. If the withdrawal of the writ petition filed by the petitioner-company, wherein it challenged the validity of the provisions of clause 10.2 of the Policy of 2010, is resulted in giving further opportunity to the petitioner-company to challenge the validity of the same provisions, then there will be no certainty about the validity of any law and it can be challenged at any number of times by adopting this practice. If this is allowed, then in a writ petition where the Court declares any law invalid and later on the party challenging the validity of that law withdraws the writ petition, it will result in revival of a law, which has already been declared invalid and such practice cannot be permitted.

Hence, in my opinion, until and unless the judgment upholding the validity of clause 10.2 of the Policy of 2010 is set aside or reversed, this Court cannot take a fresh look into the validity of the said clause.

In view of the above discussions, I do not find any merit in this writ petition and the same is hereby dismissed.

There shall be no order as to costs.

( VIJAY BISHNOI ), J.

m.asif/PS

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