ORDER A. K. Mathur, C. J.—All these Letters Patent Appeals arise out of common order passed by the learned Single Judge in Writ Petition Nos. 3534 of 1998 (India Therma Power Limited vs. State of M.P. and others), 4253 of 1998. (Bhander Power Limited vs. State of M.P. & others), 4631 of 1998 ,(G. V. K. Power Limited vs. State of M.P. and others), 4694 of 1998 (S. T. I. Power India Pvt. Limited vs. State of M.P. and others), 4742 of 1998 (M/s. Shahpoorji Pallonji Power Co. Ltd. vs. State of M.P. and others), 238 of 1998 (Bhilai Power Supply Co. Ltd. vs. State of M.P. and others) and 6175 of 1998 (Jindal Power Limited vs. M.P. Electricity Board and others). In all these writ petitions, challenge was made to communication dated 24-7-1998 by which all prospective Independent Power Producers (IPPs) were called for giving priority for providing Escrow protection. It was also prayed that the respondents may be directed to grant Escrow facility to all the petitioners. All the writ petitions were heard together by the learned Single Judge. Learned Single Judge instead of deciding the issue before him directed the State Government to constitute a Committee consisting of members of the Special Group as also one member each from the Energy Department of the Government of Madhya Pradesh and Madhya Pradesh Electricity Board and the matter may be gone into by the expert Committee objectively and dispassitely with a pragmatic approach. The learned Single Judge further directed that the Committee so constituted shall give opportunity to the representatives of the Private Power Producers to place their view points and shall confine its deliberation in relation to grievance raised by the petitioners in the writ petitions. Learned Single Judge further directed that the Committee shall submit its report to the State Government and the State Government shall give due consideration to the report while deciding the matter. Aggrieved by this order dated 19-3-1999, the present appeals have been filed by all the petitioners/appellants and the State of M.P. and M.P. Electricity Board (respondent/appellants), Bina Power Supply Co. Ltd. 2. Briefly the controversy involved is with regard to grant of Escrow Cover to these private power generators so as to assure proper financial protection to them. Aggrieved by this order dated 19-3-1999, the present appeals have been filed by all the petitioners/appellants and the State of M.P. and M.P. Electricity Board (respondent/appellants), Bina Power Supply Co. Ltd. 2. Briefly the controversy involved is with regard to grant of Escrow Cover to these private power generators so as to assure proper financial protection to them. These Private Power Entrepreneurs entered into a dialogue with the State of M.P. and the M.P. Electricity Board for production of power and supply, of the same to the M.P. Electricity Board and the M.P. Electricity Board shall pay for power supply by these private producers. M.P. Electricity Board and the Government shall give financial coverage to IPPs in order to secure their payment for sale of their power to M.P.E.B. (In short known as Escrow Cover). The M.P.E.B. and the State could only get a limited financial coverage from the financial institutions to the extent of 2561 MW. The difficulty was that how to distribute this financial protection and on what basis, this should be done. Some of the entrepreneurs got letters of comfort (means intimation of Escrow cover), whereas others could not get it, some who got letter of comfort were also called again for rebidding. Therefore, litigation was resorted to by all the seven Petitioners/Entrepreneurs. The difficulty was that how to distribute this financial protection and on what basis, this should be done. Some of the entrepreneurs got letters of comfort (means intimation of Escrow cover), whereas others could not get it, some who got letter of comfort were also called again for rebidding. Therefore, litigation was resorted to by all the seven Petitioners/Entrepreneurs. It may also be stated at the outset that in some of the writ petitions, all those persons who got letters of comfort i.e. so called protection of escrow, could not be made parties; like in the case of W.P. No. 3534/98 (India Thermal Power Ltd.) (no letter of comfort), only the State of M.P. and the M.P. Electricity Board were impleaded as parties/respondents in W.P. No. 4253/98 (Bhander Power Ltd.) (No letter of comfort), the petitioner did not implead private parties except the State of M.P. and the M.P.E.B., in W.P. No. 4631/98 (G.V.K. Power Ltd.) (No letter of comfort) the petitioner did not implead the private respondents except the State of M.P. and the M.P.E.B., in W.P. No. 4604/98 (S.T.I. Power India Pvt. Ltd.) (Letter of comfort given) the petitioner did not implead any private respondents except the State of M.P. and the M.P. E.B., in W.P. No. 4742/98 (M/s. Shahpoorji Pallonji Power Company Ltd.) (No letter of comfort) the petitioner did not implead private parties as respondents except the State of M. P. and M.P.E.B. and in W.P. No. 6175/98 (Jinndal Power Ltd. for short JPL) (No letter of comfort), also the petitioner did not implead any private respondents except the State of M.P. and M.P.E.B. Only in W.P. No. 238/98 (Bhilai Power Supply Company Ltd.) (No letter of comfort), the petitioner has impleaded the State of M.P., M.P.E.B., Daewoo Power limited, Pench Power Limited and Bina Power Supply Company Limited. Though appeals have been filed against Bhilai Power Supply Company Limited by the State of M.P. (LPA No. 114 of 1999) and M.P.E.B. (LPA No. 95/99) but they have not impleaded Daewoo Power Limited, Pench Power Limited and Bina Power Supply Company Limited as party respondents, therefore, Daewoo Power Limited has made an application for intervention through learned counsel Shri Sanjay Seth in LPA No. 106 of 1999 (Indian Thermal Power Limited vs. State of M.P. and others). Leave to appeal was also filed by G.B.L. Power Limited which has been registered as LPA No. 108 of 1999 seeking permission to file appeal as the G.B.L. Power Limited was not a party before the learned single Judge. A notice of the application was granted and after hearing the parties, the appeal was directed to be registered. However, now all 13 private entrepreneurs are before us and fully represented through their counsel; therefore, there is no controversy now that some were made parties and others were not made parties. These appeals can now be disposed of as all the parties are before us. 3. The Cabinet Sub-Committee in its Meeting dated 3-12-1997 recommended for providing escrow protection to the financial institutions to the following projects :- Daewoo : 2 x 535 MW Coal based Pench : 2 x 250 MW Coal based Bina :2 x 289 MW Coal based GBL :166 MW Liquid Fuel STI :347 MW Liquid Fuel Maheshwar :400 x 82 MW Hydel This was approved by the Cabinet and consequently, letters of comfort were sent to these six Power producers. The letter of comfort reads as under : "Dated : 21-12-1997. Sub. : Escrow protection for private sector Power Projects in Madhya Pradesh 347 MW Guna CCPP. Dear Sir, It has been considered to recommend your project having capacity of 347 MW to IDDI for grant of Escrow Protection. It has further been decided that the Escrow agreement is to be finalised and executed within one month of the date of this letter, with the condition that the financial closure and commencement of project work is to be done within 3 months of the execution of Escrow agreement. In case of failure to perform on the above stipulation, the escrow agreement would be cancelled and other IPPs would be considered for giving escrow protection. Please acknowledge receipt of this letter. Yours faithfully, Sd/ Secretary M. P. Electricity Board. Copy to: The Principal Secretary (Energy), Government of Madhya Pradesh, Bhopal. With reference to OSD (Energy) Letter No. 10099/F-3/11/13/95, dated 17-12-1997" Subsequently this proposal was sought to be reconsidered at the higher level on the basis of letter received from the Minister of Power, Government of India, dated 25th June, 1998. Yours faithfully, Sd/ Secretary M. P. Electricity Board. Copy to: The Principal Secretary (Energy), Government of Madhya Pradesh, Bhopal. With reference to OSD (Energy) Letter No. 10099/F-3/11/13/95, dated 17-12-1997" Subsequently this proposal was sought to be reconsidered at the higher level on the basis of letter received from the Minister of Power, Government of India, dated 25th June, 1998. On account of this letter, the need arose to reconsider priorities for providing escrow protection on' the basis of least tariff criteria suggested by Power Minister, Government of India, and a fresh thinking started at the higher level for amending the Power Purchase Agreements (PPAs). Therefore, a communication was sent to all private power producer and they were called to rebid on the basis of least tariff criteria, by communication dated 24-7-1998, which reads as under : "MADHYA PRADESH ELECTRICITY BOARD Shakti Bhawan, Vidyut Nagar, Jabalpur. 482008. No. 07-11/IPC/996, dated 24-7-1998 To, M/s. Daewoo Power India Ltd. 33, Siri Fort Road, New Delhi. 110 049 FAX : 011 6250225/6 Sub : Prioritisation of IPPs for Escrow Protection. Dear Sirs, This has reference to the discussions held on 14-7-1998, in the presence of Hon'ble Chief Minister, Government of Madhya Pradesh. After the discussions and in view of the Limitation of 2561 MW Escrowable capacity as fixed by the Financial Institutions, it is felt necessary to prioritise the projects for providing Escrow protection mainly based on least tariff criteria and also considering an optimum mix of liquid fuel projects, hydel projects and coal based projects. This has become all the more necessary in view of the Hon'ble Union Minister of Power's letter dated 25-6-1998, stressing the need of prioritising the projects based on least tariff and amending the PPAs to get benefit of recent amendments in the tariff notification. In view of the above, it is decided that IPPs may submit their offers for better terms in favour of MPEB on different parameters in Part 'B' of the proforma enclosed, within 15 days from the date of issue of this letter. Part 'A' of the enclosed proforma contains the information of the parameters of fixed norms/assumptions to be taken for computation of tariff. The IPPs will also be required to pay along with the above offer a security deposit equal to an amount 02% of the Project cost as approved in the TEC, which in the case of your project comes to Rs. The IPPs will also be required to pay along with the above offer a security deposit equal to an amount 02% of the Project cost as approved in the TEC, which in the case of your project comes to Rs. 5372.840 Crores, through a Demand Draft drawn on any scheduled commercial bank in favour of Regional Accounts Officer (CAU), MPEB, Jabalpur. No Bank Guarantee shall be accepted. This amount shall be kept as a fixed deposit initially for a period of six months as a security towards achieving financial closure. This security deposit is being taken as a commitment from IPPs to achieve financial closure within two months of providing a bankable Escrow Agreement form, to be executed by the IPPs, failing which the security deposit will be forfeited. On achieving financial closure within the above mentioned period, the security deposit will be released to the IPPs along with interest accrued. The interest rate shall be computed as per rate given by SBI for fixed deposits for the concern maturity period. The tariff of the IPPs will be calculated, based on the fixed parameter/assumptions and offers made by the IPPs in Part 'A' and 'B' respectively of the proforma enclosed. The security deposit of those IPPs who shall not be selected for grant of Escrow, would be released back along with the interest accrued on the fixed deposit. As per different parameters offered by IPPs, Power Purchase Agreement will have to be amended before release of security deposit. You are, therefore, requested to furnish the proforma endlosed duly filled in. This proforma is to be kept in a separate sealed cover superscribing 'Proforma for Tariff Calculation for providing Escrow. The demand draft towards security deposit is to be submitted in a separate sealed cover, superscribing 'Security Deposit for provide Escrow Protection'. Both the above sealed covers should be kept in a common sealed cover superscribing 'Proforma and Security Deposit for Tariff Calculation for providing Escrow' addressed and delivered to the Executive Director (IPC-Gen), M.P. electricity Board, Block No. 1 (Basement), Shakti Bhawan, Rampur, Jabalpur-8 (M.P.) not later than 5.00 p.m. on 10-08-1998. The proposals will be opened at 3.00 p.m. on 11-08-1998 in the preset ce of representatives of IPPs. The sealed cover towards security will be opened first. In absence of the security deposit, the proposal will not be entertained. The proposals will be opened at 3.00 p.m. on 11-08-1998 in the preset ce of representatives of IPPs. The sealed cover towards security will be opened first. In absence of the security deposit, the proposal will not be entertained. The telephone/Fax numbers of ED(IPC-Gen) are given below: Telephone : 0761-317722, 782628 Fax No. : 0761-315593. Encl : Yours faithfully, Sd/ Secretary M.P. Electricity Board, Jabalpur." The Letter of Power Minister, Government of India, which has great significance, reads as under : D.O. No. 4/2/981PC II/817 12th June, 1998 25th June, 1998. Dear Digvijay Singhji, As you are no doubt aware, there are a large number of generation projects which are proposed to be established in the private sector in M.P. As on day, 12 projects with a total capacity of about 5000 MW have been approved by C.E.A. These projects, however, could not be financed for one reason or the other, the most important being the provision of a suitable escrow facility. I understand that Government of M.P. have already given a letter of comfort for six of these projects, but this has not been accepted by the financial institutions. It is necessary to finalise these arrangements quickly, say within this month, so that some of these projects can achieve financial closure and start construction, this year itself. We also need to know the projects which will start construction, so that arrangements for fuel supply can be firmed up. At this stage, you might wish to look into the relative tariffs of the various projects as well as the risks associated with each project and give priority to such projects which offer the State, the least tariffs for power to be supplied to third. We have recently attended the tariff notification and you may also like to amend the PPAs, so that you get the benefit of these amendments in the tariff notification. It may also be possible to further bring down the tariffs through other measures and you may like to consider this possibility also. It is necessary to establish a mechanism to quickly finalise these steps and select projects with least tariffs for being given an escrow facility urgently so as to ensure that in the Ninth Plan, we get the benefit of the capacity addition from these projects. With best regards, Yours sincerely, Sd/ (P. R. Kumarnamangalam) Shri Digvijay Singh, Chief Minister, Madhya Pradesh." 4. With best regards, Yours sincerely, Sd/ (P. R. Kumarnamangalam) Shri Digvijay Singh, Chief Minister, Madhya Pradesh." 4. Change in policy was occasioned on account of letter issued by the Minister of Power, Government of India dated 25th June, 1998 where in it was emphasised that large number of power generation projects are proposed to be established in Madhya Pradesh and the letter of comfort had already been given to six of these projects but this was not accepted by the financial institutions and therefore, it is necessary to finalise these arrangements quickly so that these projects could achieve financial closure and start construction and power generation. It was also pointed out that they might also look into the tariff of various projects as well as the risks associated with each project and give priority to such projects which offer least tariff for power to be supplied to the grid. It was also informed that recently amendment in the tariff has been issued so that they may also amend PPAs. and get the benefit of amendment in the tariff notification. Thereafter a clarification was issued by the Government of India, Ministry of Power vide memo dated 22-7-1998 thereby clarifying that the notification dated 9th June, 1998 is prospective in operation and normally applies to PPAs which have not been executed and delivered by the parties by 9th June, 1998. Letter dated 22-7-1998 of the Government of India is reproduced below : "No. 6/1,Tariff/98 Government of India Ministry of Power New Delhi, dated the 22nd July 1998 To, (1) All Secretaries, State Governments/Union Territories. (2) All Chairman, State Electricity Boards. Sir, The tariff notification had been amended on June 9th, 1998 vide S.O. No. 496(E). By these amendments, profits on operating norms, i.e. station heat rate, auxiliary consumption and secondary fuel oil consumption, have been eliminated and' income tax on incentives is also no longer permitted as a pass through in tariff. 2. Clarifications have been sought on the impact of these amendments on the existing Power Purchase Agreements. 3. It is clarified that the notification dated 9th June, 1998 is prospective in operation and will normally apply only to PPAs which have not been executed and delivered by the parties by 9th June, 1998. Yours faithfully, (Rakesh Kacker) Joint Secretary to the Govt. of India Tele. 3. It is clarified that the notification dated 9th June, 1998 is prospective in operation and will normally apply only to PPAs which have not been executed and delivered by the parties by 9th June, 1998. Yours faithfully, (Rakesh Kacker) Joint Secretary to the Govt. of India Tele. No. 3714842 Copy to : Chairman Central Electricity Authority, Sewa Bhavan, R. K. Puram, New Delhi." In this background, all the seven writ petitions were filed and various arguments were agitated before the learned Single Judge. But the learned Single Judge did not dilate on those detailed arguments and only directed that a committee be constituted so that all questions can be gone into by the said committee and on the basis of the recommendations of the Committee, Government may proceed further. This order did not satisfy the parties and, therefore, further litigation was resorted to by filing Letters Patent Appeals by all the petitioners as well as the State of M.P. and M.P.E.B. Leave to Appeal has been filed by the GBL Power Limited. Daewoo Power Limited has also sought intervention as he was not made party in the appeal filed by Bhilai Power Supply Company Ltd., therefore, he has filed the intervention application and has prayed that the appeal be dismissed. Bina Power Supply has also filed the appeal aggrieved against the order of learned Single Judge. 5. It would be relevant to mention here some past history of private power generation. In 1991-92, Government of India framed policy seeking participation from Private Sector for generation of power. In the State of M.P., M.P.E.B. is generating, transmitting and distributing electricity energy to consumers. By the end of 7th plan i.e. in the year 1989-90, the installed capacity of MPEB was 2947.9 MW which fell short of 700 MW in peak demand compared to availability of the power generation. By March 1995, the installed capacity of M.P. had gone upto 3812.7 MW besides State's share of about 1550 MW from the Central Power Projects. But there was a shortage of 1200 MW when the demand was at its peak. To meet the peak demand, additional 2000 MW capacity was required which meant that the installed capacity should be around 7360 MW. In 2001 the installed capacity should be 13000 MW. But there was a shortage of 1200 MW when the demand was at its peak. To meet the peak demand, additional 2000 MW capacity was required which meant that the installed capacity should be around 7360 MW. In 2001 the installed capacity should be 13000 MW. Accordingly, in line with the policy frame work of the Government of India, the State of Madhya Pradesh decided to invite proposals from the private companies for setting up various projects amounting to a capacity of around 7000 MW. On 27-2-1992, the Madhya Pradesh Audyogik Vikas Nigam invited offers from the private sector investors for promoting, establishing, operating and maintaining power projects in the State of Madhya Pradesh. An advertisement for the 2 x 210 MW thermal power project at Korba (West), District Bilaspur was released. I.T.P.L. (Indian Thermal Power Ltd.) made an application for establishment of Thermal Power Project and a letter of intent for setting up 2 x 210 MW Korba (West) was issued by the Government. The Central Electricity Authority granted an 'in principle clearance' for the establishment of the project. On 21-5-1993, a notification was published in terms of requirements of Section 29 (2) of the Electricity (Supply) Act, 1948 in respect of the said Project in M.P. Gazette. On 29th July 1993, a memorandum of understanding (MOU) with respect to development of the Project was executed between the Government and the ITPL. Then on 24-2-1994, the State Government of Madhya Pradesh invited offers from the private sector for establishing power project in Bina, M.P. similar advertisements were issued inviting offers for establishing power project based on coal, dual-fuel Naptha/Gas based combined cycle/furnace oil project. Several companies gave their offer and in all 21 MOUs were entered into between the parties. As on 13 IPPS (Independent Power Producers) are in the reckoning for which PPAs (Power Purchase Agreements) have been entered into. The M.P.E.B. and the I.T.P.L. entered into principles of the PPA, outlining the terms of sale of power to MPEB, from the project. As per the terms, ITPL would supply electricity to the MPEB for an initial period of thirty years. The ITPL entered into an implementation agreement with the Government of Madhya Pradesh where the State Government agreed to provide necessary support and assistance in the development and implementation of the project. As per the terms, ITPL would supply electricity to the MPEB for an initial period of thirty years. The ITPL entered into an implementation agreement with the Government of Madhya Pradesh where the State Government agreed to provide necessary support and assistance in the development and implementation of the project. The State Government provided a guarantee to ITPL with respect to the payments due to ITPL from MPEB under the PPA which inter alia included monthly payments and termination cost. Similar agreements were entered into with the other IPPs. The escrow facility was contemplated in this agreement in Condition No. 8.3 of the agreement under the heading 'SECURITY of PAYMENT', clauses (e) and (f) are relevant and they read as under : "(e) To the extent such is agreed in accordance with the following, M.P.E.B. shall at all times following the First Unit Commercial Operations Date, maintain an Escrow Account with MPEB's Bank, in such form and substance as is mutually agreed by parties and on terms no less favorable than those applicable to any other independent power generating company and into which MPEB shall, for each month, place funds therein and from which overdue payments under this Agreement may be made to the Company in the event of MPEB failing to maintain, replenish, renew, restore or replace or more Letters of Credit in the amounts provided for above. Such escrow Account shall be (i) established and maintained by MPEB in accordance with Escrow Agreement; (ii) in form and substance acceptable to the Parties. (f) If the Company is entitled to receive any overdue amount payable by MPEB pursuant to paragraph 8.2 (a) and has not been able to receive such payments pursuant to, first, the Letter of Credit and, second, the Escrow Account established in accordance with Article 8.3 (e) above, then the Company shall receive payment of such overdue amount by invoking the GOMP Guarantee." The agreement entails a provision for fulfilling certain prerequisites as per the terms of the PPAs. Similar PPAs were also entered with other IPPs. Their details are as under : Sr. Name Nature of fuel Date of MOU Date of PPA Date of TEC Letter of Comfort 1. Bina Coal (2x289) 29-10-94 12-2-96 17-6-97 21-12-97/4-9-98 2. Daewoo Coal (2x535) 7-10-94 15-9-95 30-12-96 -do- 3. Pench Coal (2x250) 16-6-94 24-12-95 19-9-97 -do- 4. Bhilai Coal (2x287) -- 17-11-97 3-10-97, 14-7-97 5. Their details are as under : Sr. Name Nature of fuel Date of MOU Date of PPA Date of TEC Letter of Comfort 1. Bina Coal (2x289) 29-10-94 12-2-96 17-6-97 21-12-97/4-9-98 2. Daewoo Coal (2x535) 7-10-94 15-9-95 30-12-96 -do- 3. Pench Coal (2x250) 16-6-94 24-12-95 19-9-97 -do- 4. Bhilai Coal (2x287) -- 17-11-97 3-10-97, 14-7-97 5. ITPL Coal (2x210) 29-7-93 24-12-95 15-9-97 Nil. 6. JPL Coal (2x275) 21-10-94 5-11-96 17-11-97 Nil 7. STI Dual Fuel (330) 20-1-95 14-10-95 19-9-97 21-12-97 8. GBL -do- (166) 16-12-94 9-2-1996 27-6-97 21-12-97 9. Bhander -do- (342) 12-10-94 14-9-95 5-3-98 Nil. 10. MBECL -do- (171.17) 2-2-95 24-12-95 29-5-98 Nil. 11. G.V.K. Diesel (118.63) 21-12-94 18-11-97 10-2-98 Nil. 12. SPPCL -do- (119.70) 21-12-94 18-11-97 10-2-98 Nil. 13. Maheshwar Hydel (400) 28-7-93 11-11-94 30-12-96 Nil. It may be relevant to mention here that there is a difference in terms of Escrow facility in the PPA given to ITPL and other IPPs (The changed Escrow clause will be referred subsequently). However, a detailed chart giving names of IPP, nature of Fuel, Date of MOU, Date of PPA, date of Technical Economical clearance and letter of comfort given to various IPPs has been given above. 6. With regard to ITPL, agreement was entered into and the State Government provided a guarantee to the ITPL with respect to payment of dues from the MPEB under the PPA which included monthly payments and termination cost. The ITPL requested the MPEB to issue necessary Escrow cover as per the terms of the PPA by communication dated 7-12-1996. On 1-1-1997, the MPEB sent a draft Escrow agreement to the ITPL seeking its comments and the ITPL forwarded its comments on the draft Escrow agreement by letter dated 8-2-1997. The State Government asked the ITPL to provide additional information so as to enable consideration for award of escrow cover to ITPL. The ITPL provided necessary information to State so as to enable the grant of escrow cover. The ITPL got techno-economic clearance from the Central Electricity Authority. Other IPPs also got TEC from the CEA on different dates as shown above in Chart. STI Power India Private Limited also informed the State Government of M.P. that the industrial Finance Corporation of India has approved financing for its project at Guna. However, the Cabinet Sub Committee after considering the matter granted escrow cover only to six projects, namely, Daewoo, Pench, Bina on cool based. STI Power India Private Limited also informed the State Government of M.P. that the industrial Finance Corporation of India has approved financing for its project at Guna. However, the Cabinet Sub Committee after considering the matter granted escrow cover only to six projects, namely, Daewoo, Pench, Bina on cool based. GBL and STI on liquid fuel and Maheshwar on Hydel. These letters of comfort were granted to aforesaid parties primary on the basis of Techno-economic Clearance from the C.E.A. Letters of comfort granted to these six IPPs were not challenged but when a decision to grant the letters of comfort to these six private entrepreneurs were held in abeyance on account of communication received from the Minister of Power, Government of India dated 25th June, 1998, another enter dated 24-7-1998 was issued to all the IPPs inviting them for prioritising for purposes of grant of escrow facility, the present writ petitions were filed. At the outset, it may be mentioned that ITPL did not file any petition challenging the grant of letters of comfort to the aforesaid six entrepreneurs. After the letter dated 24th July,1998 was issued (re-bidding), the ITPL filed writ petition challenging this letter and seeking writ of mandamus to grant escrow cover likewise the STI Power India Private Limited and others followed, challenging the letter dated 24th July, 1998. 7. The principal submission of the learned counsel for STI Power India Private Ltd. Shri Chidambaram was that the Power Purchase Agreements are statutory and escrow cover is part of statutory condition; therefore, Court should enforce this statutory contract i.e. once a letter of comfort was issued on the basis of PPAs, then in that case, the State Government cannot go back and reverse the policy. Secondly, learned counsel submitted that the State is estopped from going back from the agreement entered into on principle of promissory estoppel. The submission of the learned counsel was supported by Shri Sibbal, learned counsel for the ITPL. All the other learned counsel for parties appearing on behalf of the petitioners have by and large supported the submissions made by Shri Chidambaram and Shri Kabil Sibbal on this issue. However, Shri Sapre appearing for Bhilai Power Supply Company Ltd. has supported the view taken by the learned Single Judge that the matter should be gone into again. All the other learned counsel for parties appearing on behalf of the petitioners have by and large supported the submissions made by Shri Chidambaram and Shri Kabil Sibbal on this issue. However, Shri Sapre appearing for Bhilai Power Supply Company Ltd. has supported the view taken by the learned Single Judge that the matter should be gone into again. Shri Chidambaram, learned counsel also alternatively submitted that even on the basis of changed policy i.e. least tariff criteria, his client is entitled to get escrow facility as the tariff criteria, has client is entitled to get escrow facility as the tariff bid of his client is the lowest. In support of his submission, learned counsel invited our attention to following decisions : (1) AIR 1975 SC 1967 (Indian Aluminium Co. vs. K.S.E. Board.) (2) 1997(3) SCC 398 (Shrijee Saes Corporation and another vs. Union of India.). (3) 1997(7) SCC 251 (Pavan Alloys and Casting P. Ltd vs. U.P.S.E.B.) (4) 1998(2) SCC 502 (Dr. Ashok Kumar Maheshwar vs. State of U.P.) Shri Chidambaram, learned counsel, has also invoked the principle of legitimate expectation because of matter has proceeded thus far. He has invited our attention to the decision in the case of Hindustan Development Corporation, 1993(3) SCC 499. He has also submitted that judicial review is permissible of process of decision making and not the decision. In this connection, learned counsel has invited our attention to cases of Tata Cellular vs. Union of India, AIR 1996 SC 11 and State of U. P. vs. Dharmander Prasad Singh, AIR 1989 Supreme Court 997. Learned counsel submitted that so far as the first decision dated 21-12-1997 is concerned, escrow facility was given to the STI Power India Pvt. Ltd. and similarly placed persons, therefore, it should not have been reviewed. The review on the basis of letter of the Government of India, Ministry of Power is arbitrary and it was submitted that the basis on which prioritisation was sought to be made i.e. least tariff criteria is also arbitrary. It was submitted that so far as liquid fdel is concerned, it cannot be based on least tariff as there are various complications involved in such liquid fuel process. It was submitted that this least tariff basis has also been criticized by the authorities and it is not a sustainable basis for grant of escrow cover. It was submitted that so far as liquid fdel is concerned, it cannot be based on least tariff as there are various complications involved in such liquid fuel process. It was submitted that this least tariff basis has also been criticized by the authorities and it is not a sustainable basis for grant of escrow cover. Shri Sibbal and Shri Shrivastava, learned counsel have strongly supported the submission of Shri Chidambaram and in support of their contention, they invited our attention to the cases of Indian Aluminium Company vs. Kerala State Electricity Board, AIR 1975 SC 1967 and Bihar State Electricity Board and others vs. Parmeshwar Kumar Agarwala, 1996 (4) SCC 686 . It was submitted that the escrow facility was part of statutory agreement and it should be enforced by issue of mandamus directing the respondents to provide escrow facility to the petitioners/appellants. Shri Nair, learned counsel appearing for Jindal Power Limited also supported the contention and submitted that statutory agreement has to be enforced and in support thereof he invited our attention to the case of State of U.P. vs. Renusagar Power Company, AIR 1988 SC 1737 . He also submitted that the concluded contract cannot be revoked and he also invoked the principle of promissory estoppel. Learned counsel invited our attention to the cases of State of M.P. vs. Orient Paper Mills, 1990 (1) SCC 176 and National Buildings Construction Corporation vs. S. Raghunathan, (1998) 7 SCC 66 . Shri Arjundania learned counsel submitted that Bina Project is a Coal Based Project and on both the counts i.e. on the basis of earlier agreement they were granted letter of comfort as also on the basis of least tariff criteria. On both the basis, the Bina Project has a better case for grant of escrow cover. However, a cross objection has been filed by Bhilai Power Supply Co. Ltd. for rejecting grant of escrow facility to Bina Power Supply Co. Shri Sapre, learned counsel, submitted that a mandamus be issued to the State for enforcement of statutory contract by granting escrow cover to his client. However, a cross objection has been filed by Bhilai Power Supply Co. Ltd. for rejecting grant of escrow facility to Bina Power Supply Co. Shri Sapre, learned counsel, submitted that a mandamus be issued to the State for enforcement of statutory contract by granting escrow cover to his client. This issue has also been joined by M/s. Shahpoorji Palonji Power Company Ltd. and it was submitted that on the basis of liquid fuel project, the petitioner/appellant offered the least tariff, therefore, he should be granted escrow cover and in that connection he has invited our attention to the affidavit filed before the Supreme Court. It was submitted that on the basis of least tariff criteria, the escrow cover be granted to the appellant. Learned counsel also invited our attention to the case of Dutta Associates Pvt. Ltd. vs. Indo Merchantiles Pvt. Ltd., (1997) 1 SCC 53 . Learned counsel appearing for M/s. Bhander Power Limited submitted that priority should be given on the basis of techno economical clearance. It was also submitted that the respondent cannot unilaterally change the terms and conditions. In that connection, our attention was drawn to the case of Indian Aluminium Company vs. Kerala State Electricity Board, AIR 1975 SC 1967 . As against this, Shri Parasaran, learned counsel for State, assisted by Shri M.L. Jaiswal, Adv. submitted that there is a frustration of contract as there was a mistake of fact because of certain problems created by the financial institutions. However, it was admitted by the learned counsel that there has been some thoughtlessness in these negotiations as these are first of its kind in the State, but the learned counsel submitted that the criteria of least tariff is a good criteria which is in public interest and that is a sustainable criteria for larger interest of the State. Learned counsel submitted that so far as the question of enforceability of statutory contract is concerned, that argument is not available to the parties for the simple reason that most of the parties have joined in second bidding in pursuance of the letter issued by the Government of M.P. on 24-7-1993 and they have already given their bids for grant of escrow cover on the basis of least tariff. Therefore, they cannot blow hot and cold at the same time. Therefore, they cannot blow hot and cold at the same time. Learned counsel submitted that on account of the fact that these entrepreneurs have participated in the negotiations of least tariff basis; therefore, they are precluded to invoke the principle of estoppel or enforcement of their statutory contract. Once they have participated in the negotiations for grant of escrow facility on the basis of communication dated 24-7-1998 i.e. least tariff and offered least tariff, it is not open for them to challenge that very letter dated 24-7-1998, that will operate as estoppel against them. It was also pointed out that while negotiating on the basis of least tariff, they did not challenge that the criteria is unreasonable. Learned counsel submitted that clause 8.3 which was in the PPA of ITPL is not similar and in this connection, our attention was invited to clause 8.4 of the STI Power India Pvt. Ltd. which is common to remaining 12 entrepreneurs and is different from clause 8.3 of the PPA of the ITPL. Learned counsel submitted that simply because the parties have come to participate in the negotiation without prejudice to their right has no meaning and in this regard our attention was invited to the case of M/s. Tarapore and Company vs. Cochin Shipyard Company, Cochin, AIR 1984 SC 1072 . So far Pench Project is concerned, it was pointed out that it was cleared because of least tariff and it has additional factor in its favour i.e. the location in the eastern region of the State of M.P. It was pointed out that number of industries are in the eastern region of M.P. and looking to the situation of Pench Project, it was preferred as it would be able to supply power to most of the industries. Learned counsel submitted that so far as ITPL petition is concerned, it has to be rejected simply on the ground of delay because when the letter of comfort was granted to six entrepreneurs, ITPL did not challenge it and it only woke up to challenge the letter dated 24-7-1998 when prioritisation was sought on the basis of least tariff. The ITPL did not give its bid on the basis of least tariff. However, all other entrepreneurs did participate and four namely Daewoo, Pench, Bina (Coal Based Projects) and Maheshwar (Hyde] Project) were granted escrow cover. The ITPL did not give its bid on the basis of least tariff. However, all other entrepreneurs did participate and four namely Daewoo, Pench, Bina (Coal Based Projects) and Maheshwar (Hyde] Project) were granted escrow cover. Liquid Fuel Projects could not be finalised because in the meanwhile, ITPL filed a writ petition before this Court and obtained stay order. Therefore, learned counsel submitted that the petition of ITPL should be rejected on the basis of laches and on the basis of fact that it has not participated in second re-bidding on the basis of least tariff. So far as other petitions are concerned, all these entrepreneurs participated in re-bidding, therefore, they are precluded from challenging the action of the respondent, on account of acquiescence. Therefore, the learned counsel submitted that petitions should be dismissed. 8. In the background of the factual controversy, which has been raised, we wish to examine the arguments canvassed by the learned counsel for the appellants. So far as the first question with regard to enforcement of statutory contract is concerned, there is no two opinion that these contracts are statutory. Section 43 lays down power of Board to enter into arrangement for purchase and sale of electricity under certain conditions. Section 43-A lays down terms and conditions and tariff for sale of electricity by Generating Company. Section 43 and Section 43-A read as under: "S.43. Power to Board to enter into arrangement for purchase or sale of electricity under certain conditions. - (1) The Board may enter into arrangements with any person producing electricity within the State for the purchase by the Board on such terms as may be agreed, or any surplus electricity which that person may be able to dispose of. (2) Where a sanctioned scheme so provides, the Board may, on such terms as may be agreed upon, enter into arrangements with any Government or person for the purchase or sale of electricity to be generated or used outside the State; Provided that the Board may not enter into such arrangements with any such Government or person without the consent of the State Government, or into arrangements with any such person without the consent of the Government of the State within which the electricity is to be generated or used. Section 43-A. Terms, conditions and tariff for sale of electricity by Generating Company. Section 43-A. Terms, conditions and tariff for sale of electricity by Generating Company. - (1) A Generating Company may enter into a contract for the sale of electricity generated by it :- (a) With the Board constituted for the State or any of the States in which a generating station owned or operated by the Company is located; (b) With the Board constituted for any other State in which it is carrying on its activities in pursuance of sub section (3) of Section 15-A; and (c) With any other person with consent of the Competent Government or 1 Governments. (2) The tariff for the sale of electricity by a generating company to the Board shall be determined in accordance with the norms regarding operation and the plant load factor as may be laid down by the authority and in accordance with the rates of depreciation and reasonable return and such other factors as may be determined, from time to time, by the Central Government, by notification in the Official Gazette: Provided that the terms, conditions and tariff for such sale shall, in respect of a generating company wholly or partly owned by the Central Government, be such as may be determined by the Central Government and in respect of a Generating Company wholly or partly owned by one or more State governments be such as may be determined, from time to time, by the Government or governments concerned." Therefore, these contracts i.e. Power Purchase Agreements are statutory. 9. There are three kinds of Power Generation involved in these projects. They are: (1) Coal Based, (2) Liquid Fuel/Dual Fuel, and (3) Hyde]. So far as Hydel Project of Maheshwar is concerned, there is no controversy and there is no challenge to the grant made to this hydel project, nor are there any contenders for this project. It is contended in regard to this Hyde] Project that there is no contesting party though its generation capacity is said to be 400/82 MW, but it is submitted by the learned counsel for the State that maximum generation at the optimum point would not be more than 82 MW. Learned counsel for the State submitted that as per instructions, optimum power generation is not more than 82 MW for which the financial institution has been approached to modify the same. Learned counsel for the State submitted that as per instructions, optimum power generation is not more than 82 MW for which the financial institution has been approached to modify the same. Be that as it may, so far as the hydel project is concerned, we do not find any controversy and none is contended; therefore, it can be cleared by the State Government on the basis of criteria evolved by them. 10. In the next category i.e. Coal Based Projects, the following were the contenders, namely, (1) Bina, (2) Daewoo, (3) Pench, (4) Bhilai, (5) ITPL, and (6) JPL. Out of these six projects, three have been granted escrow facility, namely, Bina, Daewoo and Pench. Therefore, we have to decide whether the non- grant of escrow facility to the remaining three power projects is reasonable and it suffers from the vice of any arbitrariness or discrimination. 11. So far as liquid fuel based projects are concerned, the contenders for escrow facility are STI, GBL, Bhander, MBECL, GVK and SPPCL. The Government has not decided so far to whom this escrow facility is to be granted on account of the stay order passed by this Court and the Government refrained itself from deciding the grant of escrow facility to these six projects. In that connection, the matter is still at large, hence it would not be proper to express any opinion by this Court. 12. It was contended by Shri Chidambaram and Shri Sibbal and other learned counsel that since they have already entered into PPAs and escrow facility has to be granted as per the PPAs, a manmdamus should be issued to enforce these statutory contracts. It is true that these are statutory contracts as per section 43A of the Act of 1948 quoted above; therefore, parties can seek writ of mandamus. The Apex Court in number of cases has held that such type of contracts are statutory contracts. In the case of Indian Aluminium Company (supra), question which arose was that when the tariff has been fixed by the statutory stipulation, whether the Board has powers to effect change therein or not. The Apex Court in number of cases has held that such type of contracts are statutory contracts. In the case of Indian Aluminium Company (supra), question which arose was that when the tariff has been fixed by the statutory stipulation, whether the Board has powers to effect change therein or not. Their Lordships observed as under : "Once the agreements were made containing these stipulations, it was not competent to the Board to override these stipulations which were binding as having been validly made in exercise of statutory power." Our attention was also invited to the case of Shrijee Sales Corporation and another (supra) wherein it was held that the principle of estoppel can also be invoked. In this case, it was held that the Government is bound by the principle of promissory estoppel, but exception has been made in the matter of application of principle of promissory estoppel against public authority or Government. Government can change its stand in case it is against law or equity or public interest. It was observed by their Lordships as under: "The principle of promissory estoppel is applicable against the Government. But the determination of applicability of promissory estoppel against public authority/government hinges upon balance of equity or 'public interest'. In case there is a supervening public equity, the Government would be allowed to change its stand; it would then be able to withdraw from representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal." It was further observed thus: "Once public interest is accepted as the superior equity which can override individual equity, the aforesaid principle should be applicable even in cases where a period has been indicated for operation of the promise. However, the Court must satisfy itself that such a public interest exists. It is the Court which has to determine whether the Government should be held exempt from the liability of the 'promise' or 'representation'." In the case of Pawan Alloys & Casting Pvt Ltd. vs. U. P. State Electricity Board and others (1997-7 S.C.C. 251), their Lordships of the Apex Court observed as under : "The promise or representation held out by the State or its instrumentality should not be statutorily prohibited or against legislative or quasi-legislative power or authority or opposed to public policy........... In such event if the promise or representation is intended to operate for a specified period, State or its instrumentality would be bound by principle of promissory estoppel not to reailse from the same at least for that period. However, State can withdraw its promise or representation even prior the specified period on ground of overriding public interest or by giving reasonable opportunity to the promisee of resuming his earlier position if restoration of status quo ante is possible........." Our attention was also invited to the decision of the Apex Court in the case of Dr. Ashok Kumar Maheshwari (supra). In this case, their Lordships observed that the principle of promissory estoppel can be enforced by the Courts on the basis of equity and to avoid injustice. In this case, their Lordships declined to enforce the principle of promissory estoppel on the facts that there was no specific pleading for laying down such foundation for invoking the doctrine of promissory estoppel. Their Lordships, after reviewing all the cases, over ruled this argument. However, there is no two opinion in the matter that the doctrine of promissory estoppel can be invoked to avoid injustice and to abide by the equity between the parties. At the same time, their Lordships of the Apex Court observed time and again that in case of enforcement of the doctrine of promissory estoppel, one has to keep in mind the representation made by one party to another and the other party acted on the said representation to his detriment. But there are exceptions to it i.e. the public interest. In case larger public interest is served, then such a promissory estoppel can be avoided by the State. It has also been observed very categorically that Courts must be satisfied whether the larger public interest would be served or not. In case larger public interest is served by avoiding the promise, then so far as State transactions are concerned, an exception can be made from normal rule as the public interest is paramount as against the individual interest. 13. In case larger public interest is served by avoiding the promise, then so far as State transactions are concerned, an exception can be made from normal rule as the public interest is paramount as against the individual interest. 13. Coming to the facts of the present case, it is true that escrow facility was contemplated in PPAs but when the tariff notification was issued by the Government of India and the letter of the Minister of Power was received by the State Government to the effect that the highest technical Body, after considering the matter, has come to realise that least tariff base would be better principle for grant of such escrow facility, the State Government reexamined the priority on the basis of this criteria in public interest. In the contract with State. public interest is paramount because it goes to public exchequer for well being of nation. The principle of least tariff is, therefore, a norm which can be adopted by the State for grant of escrow facility. It is true that in all the PPAs, grant of escrow facility was contemplated but in all the PPAs, clause 8.4, which was there in the case of STI Power India Pvt. Ltd. was not there. Except in the case of ITPL, in other PPAs, the provision for escrow facility reads as under : "8.4 Escrow Account. - The Company and MPEB shall in good faith and expeditiously cooperate with and assist each other in establishing a practicable and appropriate Escrow Account mutually acceptable to the parties in order to utilise current receivables from the Acceptable Customers as a satisfactory security mechanism for the payment obligations of MPEB, taking into account the following parameters: (i) The Escrow Account shall take into account the reasonable requirement of the Lenders of the project; and (ii) The amount of the Escrow Account shall be the Escrow Account Amount; and (iii) The terms of Escrow Account will be no less favourable than those applied to any other Independent Power Generating Company by MPEB as on the date of establishment of Escrow Account." It is true that this clause contemplates grant of escrow cover but the overriding factor is the public interest and the suggestion put forward by the letter of the Government of India that least tariff basis is a good criteria for grant of escrow facility. Since this is a good criteria, because it benefits the public exchequer, therefore, these statutory contracts have to be read down. Keeping in view this, the Government after considering the matter gave re-thinking to it and asked all the entrepreneurs to come for negotiation for grant of escrow facility on the basis of least tariff criteria. In that all the parties came for negotiation, except ITPL, though reserving their legal rights and submitted their bid on the basis of least tariff for grant of escrow facility. After considering the competitive claim on the basis of least tariff, the State decided to grant escrow facility to three parties i.e. Bina, Daewoo and Pench (Coal Based). This action of the State Government cannot be said to be bad or arbitrary so as to be quashed. 14. Shri Sibbal, learned counsel for ITPL submitted that the ITPL did not submit to the second re-bidding on the basis of least tariff and submitted that they want to get their statutory contract enforced by a mandamus. So far as ITPL is concerned, firstly no relief can be given to it for the simple reason that when letter of comfort was sent to six entrepreneurs, they did not challenge the same and accepted that. It is only when the re-bidding was sought in pursuance of the letter dated 24-7-1998 of the Power Minister, Government of India, asking the parties to send their bid on the basis of least tariff and to deposit minimum 2% of the bid amount, the ITPL woke up to challenge the same by filing the present petition; secondly, as we have observed above, since public interest is superior, it is open for the State Government to go for re-bidding and ask entrepreneurs to give their fresh terms, in that ITPL did not participate. Therefore, on both these counts, we are satisfied that the ITPL has not made out a case so as to warrant interference in this grant of escrow facility in the Coal Based Power Projects of Bina, Daewoo and pench. Therefore, on both these counts, we are satisfied that the ITPL has not made out a case so as to warrant interference in this grant of escrow facility in the Coal Based Power Projects of Bina, Daewoo and pench. There is additional factor pleaded in favour of Pench of its geographical position that it would be more conducive to supply power to industries situated in the eastern region of the State of M.P. We are thus satisfied that no case is made out to interfere in the grant of escrow facility to the aforesaid three coal based power generating projects nor issue of mandamus in favour of ITPL for enforcing its statutory contract. 15. Coming to the question of grant of escrow facility to third category i.e. liquid fuel/dual fuel, learned counsel for the appellant has strongly urged before us that a mandamus should be issued directing the respondent State and the M.P.E.B. to enforce the statutory contract and grant the escrow facility to the appellant. So far as submission of enforcement of statutory contract and for issuing mandamus directing the State to grant escrow facility to liquid fuel power projects is concerned, we have already answered this question above and taken the view that statutory contract can be directed to be enforced but in case like the present one where public interest is involved, we have declined to grant mandamus for enforcement of statutory contract as we are satisfied that the basis of least tariff is a good criteria for grant of escrow facility being in consonance with public interest. Therefore, we are of the opinion that so far as the first submission of the learned counsel with regard to enforcement of statutory contract is concerned, we do not find any merit and over rule the same. 16. Now coming to challenge to the criteria of least tariff, learned counsel submitted that this criteria is no good criteria. Learned counsel pointed out that this cannot be made applicable in case of liquid fuel/dual fuel. 16. Now coming to challenge to the criteria of least tariff, learned counsel submitted that this criteria is no good criteria. Learned counsel pointed out that this cannot be made applicable in case of liquid fuel/dual fuel. Our attention was also invited to a dissenting note given by one of the bureaucrats but that will not deter from the fact that the least tariff basis has been found to be a good criteria by Government of India and by specialised committee, it also appears to be in the interest of public as in a competitive world, whoever offers minimum price should be preferred as against the higher price. Learned counsel has pointed out number of defects that it is not possible to work out least tariff basis specially with regard to power generation in liquid fuel, as numerous factors are involved like the gestation period of liquid fuel projects is quicker than other projects and among liquid fuel projects, some are still quicker like gas based projects. It is pointed out that some times naphtha can be used and many times, gas can be used and there are number of other factors which determine the price. Therefore, the least tariff cannot be a good criteria to grant the escrow facility in projects of this kind. Learned counsel also submitted that the letter written by the Minister of Power, Government of India clearly stipulated that so far as the six entrepreneurs to whom the facility is granted are concerned, they will not be governed by this criteria of least tariff and it has been clarified by the Government by letter dated 22-7-1998 that it is prospective and not retrospective. It is very difficult for this Court to go into the merits and demerits of the criteria of the least tariff. There might be many more components in it, as pointed out that there is gestation period, environmental requirements, fuel availability, requirements of the grid, proximity to the load centre and balanced regional developments for selection of projects. These factors were before expert bodies who were well versed in power generation field and therefore, they cannot be said to be ignorant of these factors. These factors were before expert bodies who were well versed in power generation field and therefore, they cannot be said to be ignorant of these factors. When a high powered body, after considering all pros and cons has evolved a criteria of least tariff, it is not possible for this Court to find fault with such criteria specially when such a complicated process is involved in the matter. Once the expert body has, after considering all the factors, decided the least tariff as a good criteria, we do not find any defect therein and we over rule the submission of Shri Chidambaram that it is not a good criteria. We hold that the criteria evolved by the expert committee is a good criteria and will hold good as it is in public interest that whoever offers minimum price for sale of power shall be preferred as against the higher price. 17. Shri Parasaran, learned counsel submitted that once the appellants/petitioners had submitted in pursuance of the communication dated 24-7-1998 for re-negotiation, it does not lie in their mouth to challenge the same. This submission of the learned counsel appears to be correct that once the petitioners participated in the negotiation, then it is not open for them to seek invocation of their earlier terms of PPAs. If they had not submitted and participated in the negotiation and approached the Court at appropriate time, it would have been possible to explore the matter. But once they submitted for re-bidding on the basis of least tariff and offered their competitive bids for grant of escrow facility, may be without prejudice to their legal rights, it would not be open to them to challenge the same or seek enforcement of the statutory contracts. In this connection, learned counsel invited our attention to the decision of the Supreme court in the case of M/s. Tarapore and company vs. Cochin Shipyard Limited, AIR 1984 Supreme Court 1072 wherein it was observed by the Apex court as under : "Even the question of jurisdiction of an arbitrator can be the subject matter of a specific reference. In this connection, learned counsel invited our attention to the decision of the Supreme court in the case of M/s. Tarapore and company vs. Cochin Shipyard Limited, AIR 1984 Supreme Court 1072 wherein it was observed by the Apex court as under : "Even the question of jurisdiction of an arbitrator can be the subject matter of a specific reference. If the parties agree to refer the specific question whether the dispute raised is covered by the arbitration agreement, it becomes a specific question of law even if it involves the jurisdiction of the arbitrator and if it is so, a decision of the arbitrator on specific question referred to him for decision even if it appears to be erroneous to the court is binding on the parties." Once the parties have gone on negotiation on the basis of least tariff, it amounts that they have abandoned the right to seek enforcement of statutory agreements. It is not open for them to revert back and seek implementation of the statutory agreements. We are thus satisfied that their participation in the negotiation on the basis of least tariff criteria before the authorities amounts to acquiescence and abandonment of their right to challenge the letter dated 24-7-1998 or to seek enforcement of their statutory contracts as they had forfeited their right to challenge the said letter. So far as issue of legitimate expectation is concerned, it will sub-serve the larger public interest. It was also contended that judicial review could be made of decision making process and not of decision. We have reviewed the decision making process and felt satisfied that there is no arbitrariness or discrimination involved, therefore, this contention also fails. 18. Shri Nair, learned counsel for Jindal Power Limited invited our attention to the decision of the Supreme Court in the case of M/s. Hyderabad Vanaspathv Limited vs. A.P.S.E.B., AIR 1998 Supreme Court 1715. It was submitted that a mandamus can be issued so far as the enforcement of statutory contract is concerned. In this case, it is held that undoubtedly the terms and conditions are statutory in character and they cannot be said purely contractual. There is no two opinion on this aspect, as already observed. However, we have already taken the view that enforcement of such statutory contracts can be denied if it serves larger public interest. In this case, it is held that undoubtedly the terms and conditions are statutory in character and they cannot be said purely contractual. There is no two opinion on this aspect, as already observed. However, we have already taken the view that enforcement of such statutory contracts can be denied if it serves larger public interest. It was also submitted by the learned counsel that concluded contract cannot be revoked on the principle of promissory estoppel and legitimate expectations. There is no two opinion on this principle as contended and supported by the decisions of the Apex Court in the cases of State of M.P. vs. Orient Paper Mills Limited, 1990 (1) SCC 176 and National Buildings Construction Corporation vs. S. Raghunathan and others, 1998 (7) SCC 66 . We have already dealt with this aspect of the matter, therefore, we need not repeat it again. 19. Shri Sapre, learned counsel for Bhilai Power Supply Company Limited submitted that they have filed the writ petition for enforcement of statutory agreement dated 14/25th November 1997. We have already held above that statutory agreements can be denied and they can be defeated if they are against public interest. In LPA No. 116 of 1999 which relates to liquid fuel, it is contended that on the basis of least tariff in the second negotiation, the appellant was the lowest and an affidavit to this effect was filed. As we have mentioned above, so far as the grant of escrow facility to liquid fuel based projects is concerned, it is not decided by the State as yet and it could not be decided on account of the stay order. Therefore, we need not express any opinion whether the bids for least tariff proposed by the appellant is valid or invalid. It has to be decided by the State Government on the principle of least tariff. We need not venture any guess as to who will be found to be more deserving and competitive candidate for grants of escrow facility. This is premature at this stage. Let the State Government decide grant of escrow cover to liquid fuel projects. 20. As a result of above discussion, the order passed by the learned single Judge is set aside and all the seven writ petitions/appeals filed by the petitioners/appellants are dismissed. This is premature at this stage. Let the State Government decide grant of escrow cover to liquid fuel projects. 20. As a result of above discussion, the order passed by the learned single Judge is set aside and all the seven writ petitions/appeals filed by the petitioners/appellants are dismissed. Appeals filed by the State of M.P., M.P.E.B. and the Bina Power Supply Company Limited are allowed. There shall be no order as to costs.