1. This is second round of litigation initiated at the instance of petitioner. It would be relevant to briefly notice the facts relating to the filing of proceedings before the court. Pursuant to the policy of the State Government to encourage the privatization of the power sector in the State for generation of power, petitioners herein approached the State with the proposal for renovation and modernization of Canal Power House. It has come on record that the eagerness of the State to involve private entrepreneurs for investment in power sector was forcefully propagated through news items and also through the Chamber of Commerce and Industries by no less than a person like the Chief Minister of the State. Petitioners proposal for renovation and modernization of the Canal Power House was favourably considered by the State and vide communication dated 29-8-2001, petitioners were asked by the Managing Director, J&K State Power Development Corporation Limited to prepare a detailed project report of Canal Power House on the basis of residual life and I.F. Studies to be got conducted through any of the consultants enlisted by Power Finance Corporation of India. Petitioners were given six months time for submission of the report failing which the State Government could make alternate arrangement. Petitioners got detailed project report prepared from the enlisted consultants of Power Finance Corporation of India and submitted the same to the Managing Director, PDC, Jammu on 18-9-2001. It appears that petitioners were asked to obtain a revised detailed project report on the basis of some suggestions which advise was accepted and necessary revision in the detailed project report was carried out and submitted to the Managing Director, PDC. It appears that after the matter was considered by the Government at various levels, the Government issued Government Order No. 34-PDD of 2002 dated 30-1-2002 and handed over the project to the petitioners for renovation and modernization. This Government order however, contains stipulation that the terms and conditions for the transfer of assets and liabilities of Canal Power House shall be finalized by the committee consisting of the Chief Secretary, Financial Commissioner, Planning and Development, Financial Commissioner, Finance, Principal Secretary PDD and Managing Director, Power Development Corporation. On the same date, vide Government Order No. 35- PDD of 2002 dated 30-1-2002, committee referred to in the above said Government Order, came to be constituted. On the same date, vide Government Order No. 35- PDD of 2002 dated 30-1-2002, committee referred to in the above said Government Order, came to be constituted. Terms and conditions of reference of this committee appears to be, to formulate/negotiate the terms and conditions for the transfer of Canal Power House, Jammu to petitioner-1. On the basis of aforesaid Government order, project handed over to the petitioner -1, who commenced the renovation of the project. The committee took the following decision: "(i) Five Kanals of land (to be reverified/properly demarcated) appurtenant, to the hydel project will be transferred to M/s Trehan Industries Corporation of lease of 40 years, extendable after expiry of said period. While transferring the land on lease basis, all terms and conditions shall be clearly spelled out including the one that the land shall not be put on any other use except for power generation and other related activities. Violation will result in cancellation of the agreement and land will automatically revert back to the State Government. Other terms and condition as are applicable to industrialists-granted land on lease would be applicable in the said case & incorporated in the lease deed. (ii) As far as the machinery/equipment available in the said power project is concerned, the Book value would be get evaluated after drawing a proper inventory and then further negotiations will be held with the entrepreneur about its transfer, which could be either by way of its outright sale or on lease basis. MD JKPDC will have this evaluated by a competent evaluator. (iii) The entrepreneur will supply power to the PDD @ Rs. 3.00 per unit to start with, which will be subject to reviewed governed by the award of the State (Electricity) Regulatory Commission-as and when constitute mandated to tariff. (iv) The PDD will clear all dues on account of sale of power within a period of one month which will be backed up by an L.C. In case of default 1% penal interest will be payable, if the payment is not made within a period of one month. (v) P.P.A. shall be signed between M/s Trehan Industries Corporation and Development Commissioner Power accordingly. (vi) It was also decided that policy guidelines will be formulated by the PDD, regarding involvement of private sector in taking up mini/micro hydel projects for generation. (v) P.P.A. shall be signed between M/s Trehan Industries Corporation and Development Commissioner Power accordingly. (vi) It was also decided that policy guidelines will be formulated by the PDD, regarding involvement of private sector in taking up mini/micro hydel projects for generation. The draft guidelines will be discussed by the Committee before they are formally put up to the Cabinet for approval." 2. The Power Development Department also entered into formal agreement with the petitioner. At the time of handing over the possession of Canal Power House, detailed inventory was prepared on 10-7-2003. It is alleged that petitioner had almost completed the project when the State Government issued Government Order No. 97- PDD of 2003 dated 21-5-2003 pursuant to Cabinet Decision No. 19/6 dated 19-5-2003 for taking over of Canal Power House from the petitioner. This Government Order became subject matter of challenge in OWP No. 467/2003 filed by the petitioner herein. While allowing the writ petition, writ court framed following five questions for consideration: "(a) Whether the writ petition is not maintainable in view of the fact that the petitioners have raised disputed questions of facts? (b) Whether there has been any policy decision taken by the Government at any stage with regard to Canal Power House regarding its revival, renovation, modernization and generation of electricity ? (c) Whether there has been any formal agreement with the petitioners? (d) Whether in the absence d of the formal agreement executed between the petitioners and respondents, the petitioners have rebuilt the Power House/executed minor repairs at their own risk and cost? And (e) Whether the Power House has been handed over to the petitioners without observing proper procedures and codal formalities.?" 3. On consideration of the factual legal aspects, the writ court issued the following directions: "I am, thus, inclined to allow the writ petition and quash the impugned Cabinet Decision No. 90/6 dated 19-5-2003 followed by order dated 21-5-2005 and all other consequential orders based upon the aforesaid decision. On consideration of the factual legal aspects, the writ court issued the following directions: "I am, thus, inclined to allow the writ petition and quash the impugned Cabinet Decision No. 90/6 dated 19-5-2003 followed by order dated 21-5-2005 and all other consequential orders based upon the aforesaid decision. Respondents are further commanded and directed to give effect to orders 34-PDD of 2002 dated 30-1-2002 and No. 35 -PDD of 2002 dated 30-1-2002 and consequent decision of the designated committee on negotiated terms and conditions in this behalf, based upon the aforesaid orders, reflected in communication dated 15-3-2002 addressed to the Development Commissioner, Power, J&K, by the Special Secretary to Government, Power Development Department, pertaining to taking steps for the execution and signing of the P.P. A. with the petitioners on the terms and conditions finalized and settled in this behalf by the High Power Committee." 4. The State and the Power Development Corporation, a State owned Corporation who were parties to the handing over of Canal Power House to the petitioner, challenged the judgment of the learned Single Judge before the Division Bench in LPA(W) No. 21/2004. The Division Bench of this Court dismissed the appeal with slight modification of the final direction and thus, held: "In these circumstances, we are of the view that it would be appropriate that the respondents are given opportunity of hearing by an Independent Committee of Experts constituted by the State Government to go into the entire gamut of the dispute. On receipt of the report, fresh decision shall be taken by the Government. In case of disagreement, it shall briefly spell out the reasons. This exercise should be completed within three months. In the meanwhile, status quo shall be maintained. In the result, direction of the learned Single Judge to implement the earlier decision is modified to this extent. With this modification, the appeal is dismissed and the writ petition is accordingly disposed of. There will no order as to costs." 5. That the directions were to be complied with within the period of three months. It appears that the State Government did not comply the directions within the stipulated period and sought extension in time for implementation of the judgment, though the committee as directed by the Court, was ordered to be constituted vide Government order dated 26-7-2004. That the directions were to be complied with within the period of three months. It appears that the State Government did not comply the directions within the stipulated period and sought extension in time for implementation of the judgment, though the committee as directed by the Court, was ordered to be constituted vide Government order dated 26-7-2004. Having not completed the process within the extended period, contempt proceedings were initiated by the petitioners before the Honble Division Bench. The Honble Division Bench prima-facie found violation of the court order and issued notice to respondents 2 and 3 therein to show cause as to why they be not punished for contempt of the court. An appeal was preferred against the order of the 17-3-2005 passed by the Division Bench before the Supreme Court. The appeal came to be disposed of on 1-4-2005 and after the disposal of the appeal, order impugned in this petition came to be passed. 6. It appears that the committee was constituted by the Government vide Government Order No. 979- GAD of 2004 dated 26-7-2004 comprising of Mr. H.A. Drabu, Financial Advisor to Government, Chairman, Mr. A.H. Kochak, Law Secretary and Mr. Jigmat Namgyal. a retired Power Development Commissioner in terms of judgment dated 31-5-2004 passed in LPA(w) No.21/2004. The committee submitted its report to the Government. The committee made the following recommendations: "(a) ....... We recommend that M/s Trehan Industries be asked to pay a premium price per canal, that is 50 per cent more than the premium that is paid for the most expensive industrial estate in the Jammu region. The 50 percent makeup is justified on the ground that the powerhouse is at a prime location in Jammu city and not in a defined industrial area. In deciding the compensation for land, the committee also deliberated upon the option charging a premium price equivalent to the last registered commercial deal in the vicinity of the powerhouse. (b) This one time premium will be renewed when and if the lease is renewed. In case the lease is not renewed, power house will be transferred to the State Government on a " as is where is " basis. (c) The payment of premium will be in addition to the ground rent as per norms of the State Government. (b) This one time premium will be renewed when and if the lease is renewed. In case the lease is not renewed, power house will be transferred to the State Government on a " as is where is " basis. (c) The payment of premium will be in addition to the ground rent as per norms of the State Government. After these conditions are met, M/s Trehan Industries should be given the following two options: (a) Supply power to the State Government at a fixed based price of Rs. 2.45 paise. Escalations on the price should be based on the Government of India norm for small hydel power projects. (b) In line with the industrial/power policy, an option to avail of the exchange of power in an industrial estate for running his industrial unit. The day to day timings of the supply of power by the entrepreneur and its draw down at the industrial area for his use should be mutually decided by the client and the Chief Engineer concerned. It shall be ensured that power generated during the non peak hours does not get substituted by power consumption during peak hours." 7. The report of the committee was placed before the State Cabinet which took decision No.59/4 dated 19-4-2005 declining to accept recommendations of the committee, which culminated in passing of the impugned Government Order No. 131- PDD of 2005 dated 21-4-2005. The State accordingly ordered take over of Canal Power House from petitioner -1 with immediate effect. Consequent upon the aforesaid Government Order, Superintendent Engineer Generation Circle -III, PDC issued letter dated 22-4-2005 to the petitioner for taking over of the project. This letter is also impugned in the present petition. 8. Propriety and validity of the Government Order dated 21-4-2005 and letter dated 22-4-2005 impugned herein has been assailed by the petitioner inter alia on the grounds: (i) Price is fixed and is based upon Government of India norms prescribed for Micro Hydraulic Project (ii) Evaluation is to be made on the basis of capital cost(plant and machinery). 8. Propriety and validity of the Government Order dated 21-4-2005 and letter dated 22-4-2005 impugned herein has been assailed by the petitioner inter alia on the grounds: (i) Price is fixed and is based upon Government of India norms prescribed for Micro Hydraulic Project (ii) Evaluation is to be made on the basis of capital cost(plant and machinery). The price is a variable factor depending upon project to project and there cannot be any uniform norm(iii) impugned order is contrary to findings/directions of the judgment of the Single Bench as also of the Honble Division Bench in OWP No. 467/2003 and LPA(w) No. 21/2004 decided on 26-2-2004 and 31-5-2004 respectively; (iv) There was no material before the cabinet/government on the basis of which impugned Government order has been passed rejecting the recommendations of the expert committee; (v) the impugned order is result of malafide exercise of power at the instance of the then Chief Secretary (Mr. S.S. Biloria, Respondent-2). 9. I have heard learned counsel for the parties at length. Findings issued in OWP No. 467/03 by the learned Single Judge as referred to above have attained finality. In the direction issued by the learned Single Judge quashing the Cabinet decision No. 19/6 dated 19-5-2003 and the order dated 21-5-2003 and all consequential orders were quashed. A further direction was issued by the learned Single Judge to give effect to orders No.34-PDDof 2002 dated 31-5-2002 and 35-PDD of 2002 dated 31-5-2002 and consequent decision of the Designated-Committee on negotiated terms and conditions. The Honble Division Bench while dismissing the appeal of the State vide Judgment dated 31-5-2004 passed in LPA(w) No. 21/2004, not only approved the findings of the learned Single Judge but also upheld the directions, except that the direction relating to the implementation of the earlier decision was modified with the further direction to Respondent/State to constitute an independent Committee of experts to go into the dispute. Petitioner was to be provided opportunity of hearing by the Committee. On receipt of the Report, a fresh decision was to be taken by the Government. Division Bench further asked the Respondent/State to spell-out the reasons in the event of disagreement. 10. I have quoted hereinabove the recommendations of the Committee. The State Government while considering the recommendations of the Committee, chose not to accept and reject the same on three grounds indicated in the impugned order dated 21-4-2001. Division Bench further asked the Respondent/State to spell-out the reasons in the event of disagreement. 10. I have quoted hereinabove the recommendations of the Committee. The State Government while considering the recommendations of the Committee, chose not to accept and reject the same on three grounds indicated in the impugned order dated 21-4-2001. The grounds for rejection are as under: "1. The price per unit suggested by the Committee is on the higher side. It has serious implications and will form a precedent for fixation of price in future for other similar projects in the private sector. 2. The recommendations of the Committee will have serious implications for investigation being conducted by the Vigilance Organization in the case. Investigation conducted so far have established prima facie dishonest intention and criminal conspiracy as regards manner and the terms and conditions of transfer of the Canal Power House to the entrepreneur. 3. Manner and method of the transfer of Canal Power House is against all the established norms and codal formalities. Such activities are required to be curbed so that in future nobody will venture to obtain. State largesse, by slip shod method." 11. After recording the aforesaid grounds, it was decided to take over the Canal Power House through JKPDC. Pursuant to the aforesaid decision, vide impugned Communication dated 22-4-2005 possession has been taken over from the Petitioner. 12. Learned Counsel for petitioner has challenged impugned Government Order dated 21-4-2005 and the grounds for rejection of recommendation of the Committee, as stipulated in the impugned order. I would examine the challenge to the grounds mentioned in the impugned order to find out their legality and validity. The first ground for rejection of the report of the Committee is that, the Price per unit is on the higher side and it will be a serious implication for other similar projects in Private sector. The learned Advocate General appearing for respondents has with a view to justify this ground has referred to Government of India, Ministry of Non-conventional Energy Sources Brochure of May, 2002, which deals with the Small Hydro Schemes. The learned Advocate General appearing for respondents has with a view to justify this ground has referred to Government of India, Ministry of Non-conventional Energy Sources Brochure of May, 2002, which deals with the Small Hydro Schemes. Clause-8 of this Scheme deals with certain incentive, which read as under:- "CAPITAL SUBSIDY FOR SHP PROJECTS IN STATE SECTOR- In order to promote development of small hydropower projects in the State Sector through the State Governments, State Electricity Boards and the State Government Agencies, Ministry will provide capital subsidy as per the following pattern: Schemes Areas Upto 1 MW Above 1MW & utp to 5 MW Above 5 MW & upto 15 MW Capital Subsidy for State Sector Projects. N E Region & Sikkim Equipment Cost + 50% of Civil Cost Upto Rs.60,000 Per KW Equipment Cost + 25% of Civil Cost Upto Rs.4.5 crores per MW Equipment Cost + 25% of Civil Cost limited to Rs.22.50 crores/project Middle Himalayas Ladakh A&N Equipment cost + 50% of Civil Cost upto Rs.45,000 per KW Equipment cost + 25% of Civil Cost upto Rs.3.00 crores per MW Equipment cost + 25% of civil cost limited to Rs.15 crores/project Other areas (only notified hilly regions) Equipment cost + 50% of Civil cost upto Rs.30,000 per KW Equipment cost + 25% of civil cost upto Rs.1.50 crores per MW Equipment cost + 25% of Civil Cost limited to Rs.7.5 crores/Project (N.B.: This incentive is available only to State projects and not to privately developed projects)" 13. He has further referred to Government of India, Ministry of Non Conventional Energy Sources Power Group Communication dated 17-6-1997, which inter-alia deals with the scheme for financial support to Works for Renovation/Modernization & Capacity Uprating of Small Hydro Power Station upto 3 M.W capacity. Clauses-3 to 5 deal with the incentive and are quoted below: " 3 The undersigned is directed to bring to the notice of all concerned the following scheme for financial support to works for Renovation/Modernization and capacity uprating of Small Hydro Power (SHP) Stations upto 3 MW capacity. The Ministry will provide financial support by way of grant of works for Renovation/Modernization and capacity uprating of Small Hydro Power (SHP) Stations upto 3 MW capacity @ 75% of the R&M cost or Rs. 2 crores per MW, whichever is less. 4. The Ministry will provide financial support by way of grant of works for Renovation/Modernization and capacity uprating of Small Hydro Power (SHP) Stations upto 3 MW capacity @ 75% of the R&M cost or Rs. 2 crores per MW, whichever is less. 4. The scheme will cover all States/UT s the financial support, as mentioned above, will be provided for the renovation/modernization and uprating works undertaken by the utilities in Government Sector/public sector. At least 25% of the total cost of the works will have to be met by the concerned State Governments/SEBs. 5. The Scheme will be applicable to small hydropower stations of capacity upto 3 MW and commissioned upto the beginning of the 8th five year plan i.e. 1st April, 1992. However, SHP projects commissioned thereafter can also be considered on selective basis upon menu. 14. According to learned Counsel for respondents, PDC has worked out the price per unit, if the project is established and run by the PDC, itself, and the generation cost per unit was assessed at Rs.1.174. In this regard, a reference is made to the Report of the Committee constituted by the PDC. The relevant observations of the Report of the Committee dated 6-11-2001 are quoted hereunder:- " However, if the revival of the power house is taken up by the J&K SPDC, the cost of the generation will get reduced considerably in view of the fact that 75% of capital investment subject to maximum of Rs. 2 core per MW is given as subsidy by MNES. The cost of generation per unit gets reduced to Rs. 1.174." 15. No doubt the committee constituted by the Power Development Corporation has worked the cost of power generation at Rs. 1.174 in the year 2001. This cost was assessed after taking into consideration incentive provided by the Government of India to the extent of 75% of the capital investment subject to maximum of Rs. 2.00 Crore per MW in the form of subsidy. It is pertinent to note that subsidy is available only if the generation is made by the State, State Electricity Board and/or its agency. The circular of Government of India, Ministry of Non- Conventional Energy Sources provides these incentive only for the project in State sector as is evident from para-8 of the circular noticed hereinabove. It is pertinent to note that subsidy is available only if the generation is made by the State, State Electricity Board and/or its agency. The circular of Government of India, Ministry of Non- Conventional Energy Sources provides these incentive only for the project in State sector as is evident from para-8 of the circular noticed hereinabove. This factor was relevant at the time the State Government took the decision whether to go in for privatization or not. It was a question of policy of the State. It is also relevant to notice that according to the States own admission, this project was left defunct for the last more than 20 years. Neither the State Government nor the Power Development Corporation (PDC) took any initiative for its renovation/modernization and to bring it in operational conditions. It appears that the State had limited resources and even when the Government of India `s scheme for incentive was circulated in the year 2000. The State government never availed these incentives to take up the project. Once the State Government decided to go in for privatization of Power Sector in the State and instead of investing its own money, asked the private entrepreneurs to invest and generate electricity, this factor becomes irrelevant. The generation price assessed by the PDC at Rs. 1.174 was worked out after taking into consideration 75% of the capital investment by way of subsidy from Government of India. If the subsidy is not available, the generation price assessed by PDC is impossible. The price determined by PDC at Rs. 1.174 is with only 25% of the investment by State agency (75% being contributed by Government of India). If the generation price is to be assessed with full investment i.e. excluding the subsidy, it comes to Rs. 4.696 per unit. The generation price proposed by the petitioner at Rs. 3.00 per unit can not be said to be on higher side. The very premises of the ground of rejection is non- existent and it appears to be without any application of mind. On the one hand, the price worked out by the PDC is being relied upon and on the other hand, it is stated that the price suggested by the Committee will cause serious implications for fixation of the price in future for other projects in private sector. On the one hand, the price worked out by the PDC is being relied upon and on the other hand, it is stated that the price suggested by the Committee will cause serious implications for fixation of the price in future for other projects in private sector. As a matter of fact, there was nothing before the Cabinet or for that matter with the Government, to even suggest corresponding price in private sector as it was never worked-out. At this stage, it is relevant to refer to recommendations of the Expert-committee, constituted by the State Government itself as far the question of pricing is concerned. The Committee recommended as under:- "After these conditions are met, M/s Trehan Industries should be given the following two options: (a) Supply power to the State Government at a fixed base price of Rs. 2.45 paise. Escalations on the price should be based on the Government of India norm for small hydel power projects. (b) In line with the industrial/power policy, an option to avail of the exchange of power in an industrial estate for running his industrial unit. The day to day timings of the supply of power by the entrepreneur and its draw down at the industrial area for his use should be mutually decided by the client and the Chief Engineer concerned. It shall be ensured that power generated during the non peak hours does not get substituted by power consumption during peak hours." 16. Apart from above, the Committee also imposed certain further liabilities upon petitioner like charging of premium and ground rent. The relevant observations/recommendations of the Committee are quoted as under:-, "a).......We recommend that M/s Trehan Industries be asked to pay a premium price per canal, that is 50 per cent more than the premium that is paid for the most expensive industrial estate in the Jammu region. The 50 percent makeup is justified on the ground that the powerhouse is at a prime location in Jammu city and not in a defined industrial area. In deciding the compensation for land, the committee also deliberated upon the option charging a premium price equivalent to the last registered commercial deal in the vicinity of the powerhouse. (d) This one time premium will be renewed when and if the lease is renewed. In deciding the compensation for land, the committee also deliberated upon the option charging a premium price equivalent to the last registered commercial deal in the vicinity of the powerhouse. (d) This one time premium will be renewed when and if the lease is renewed. In case the lease is not renewed, power house will be transferred to the State Government on a " as is where is " basis. (e) The payment of premium will be in addition to the ground rent as per norms of the State Government. After these conditions are met, M/s Trehan Industries should be given the following two options: (a) Supply power to the State Government at a fixed based price of Rs. 2.45 paise. Escalations on the price should be based on the Government of India norm for small hydel power projects. (b) In line with the industrial/power policy, an option to avail of the exchange of power in an industrial estate for running his industrial unit. The day to day timings of the supply of power by the entrepreneur and its draw down at the industrial area for his use should be mutually decided by the client and the Chief Engineer concerned. It shall be ensured that power generated during the non peak hours does not get substituted by power consumption during peak hours." 17. It is also relevant to note that when the offer of the petitioner was considered and accepted and the project handed over to the petitioner, the Government of Indias incentives were available. The Power Development Corporation was fully involved in the process of allotment and handing over of the Project to the petitioner. Not only this, when the petitioner was asked to process for detailed Project Report, he was required to get the Report prepared from the consultants empanelled by Power Finance Corporation of India and detailed Project Report submitted by the petitioner was prepared by said agency. The approved consultants fixed the rate of supply of electricity at Rs. 3.00 per unit. This fixation was as per the Government of India norms for private sector. The question of fixation of price was raised in the earlier writ. Respondents have not placed on record any material to show that price offered by the petitioner was on higher side, if the project is executed in private sector with the entire capital investment by the private entrepreneur. The question of fixation of price was raised in the earlier writ. Respondents have not placed on record any material to show that price offered by the petitioner was on higher side, if the project is executed in private sector with the entire capital investment by the private entrepreneur. In any case, this question had relevance only when the Project was to be put either in the State Sector or Private sector. Once, the Government took a policy decision to place the project in the private sector, the pricing on the basis of incentive available to the State or State owned Corporation, cannot be a yardstick for fixation of price in the private sector, particularly when the State Government has calculated the price on the basis of 75% subsidy from Government of India for the Project. The plea raised in the impugned order is self-contradictory. If it is a Private sector project, then pricing for State Sector project with 75% subsidy has no utility. It will not be out of context to say that 75% subsidy from Government of India is also a public money and if this subsidy amount is also conceded as capital investment in the Project, the price as determined by the Power Development Corporation in 2001, cannot hold good rather it may be much more than the price, as proposed by the petitioner at Rs. 3.00 per unit. It is also relevant to note that expert committee has further slashed the price per unit at Rs. 2.45 even while imposing additional liability of premium and ground rent upon the petitioner which is sure to escalate the capital investment of the Project, I am of the considered view that this ground is only a play-card and is not a valid ground to deny the project to the petitioner. 18. The second ground for rejection of Committees recommendation, is said to be serious implication by Vigilance organization. 19. Admittedly, when Government order No. 99/PDD of 2003 dated 21-5-2003 based upon Cabinet decision No. 19/6 dated 19-5-2003 was issued taking over the Project from the petitioner, all these facts were before the Government. While passing the aforesaid Government order simultaneously, F.I.R. No. 29/2003 was registered on 11-10-2003. In the impugned order, it is mentioned that investigation conducted by the Vigilance organization have established prima-facie dishonest intention and criminal conspiracy as regard the manner and terms and conditions of transfer. While passing the aforesaid Government order simultaneously, F.I.R. No. 29/2003 was registered on 11-10-2003. In the impugned order, it is mentioned that investigation conducted by the Vigilance organization have established prima-facie dishonest intention and criminal conspiracy as regard the manner and terms and conditions of transfer. When earlier Writ-petition No. 467/03 was filed in July, 2003, this F.I.R. had already been registered. When respondents/State filed its reply on 11-8-2003, nothing was stated as regard the hampering of investigation by vigilance. When the Judgment in OWP No. 467/2003 came to be delivered by the Single Bench and by Division Bench, it was under investigation. Respondents never raised any plea that any decision by the Court during the currency of the investigation in the F.I.R. can create complications. On the contrary, findings of the Writ Court and the directions of the Honble Division Bench, have been accepted. It will not be irrelevant to say that even when F.I.R. was registered as far back as in October 2003, no charge-sheet has been filed till date i.e. even after the expiry of two and half years. At this belated stage, respondents cannot be permitted to take refuge under the investigation by Vigilance organization to reject the Report of the Expert Committee. In any case, all these facts were before the Expert-committee constituted by the respondents. Neither, any such plea was raised before the Writ Court or before the Honble Division Bench nor before the Expert-committee. There is another interesting feature that FIR in question was registered pursuant to Cabinet Decision No.90/6 dated 19-05-2003 and Government Order dated 21-05-03. This Cabinet Decision/Government Order stand quashed. Without going into the implications of the quashment, suffice it to say that pendency of investigation which is said to be complete in all respects, cannot be utilized by the respondents to nullify the findings and directions of writ court and LPA Bench referred to above, in earlier litigation. They are not entitled to take such a plea with the sole object of ignoring the recommendations of the Expert-committee. Respondents have also not brought on record any material in this Writ petition to show what has been prima-facie established during the investigation. Investigation is said to be complete as per the statement of learned Advocate General record. I do not feel that this can be a valid ground for rejection of the Report of the Expert-committee. 20. Respondents have also not brought on record any material in this Writ petition to show what has been prima-facie established during the investigation. Investigation is said to be complete as per the statement of learned Advocate General record. I do not feel that this can be a valid ground for rejection of the Report of the Expert-committee. 20. The third and last ground for rejection of recommendation of the Expert-committee, is the manner and method of transfer of Canal Power House against the established norms and codal formalities. It is important to refer to the stand taken by the petitioner in earlier Writ petition OWP No. 467/2003. The plea taken with regard to the handing over of the project is contained in paras-9 and 16 of the counter affidavit dated 8-8-2003. The relevant portion of para-9 and para-16 are reproduced as under:- "9. In reply to sub para (d), it is once again reiterated that before petitioner could execute the work, he was under an obligation to execute and sign the agreement with the Respondents. Without executing any agreement with the Respondents, the petitioner does not get right to execute the work. The petitioner should not have executed the work without duly signed agreements, in the absence of which, he has executed work at his own risk and cost. ..... 16. In reply to para-16, it is submitted that allotment of works has to be made on the basis of policy norms keeping in view the Public Interests, the project has been handed over to the petitioner against the Public Interest." 21. There are specific findings by the writ court as also by the Letters Patent Bench with regard to the observance codal formalities. The Division Bench made the following observations: "....The learned Single Judge also did not find any violation of the procedure or codal formalities. The learned Single Judge further held that the decision having been duly taken by the previous government, it could not be reversed by the successor government... .................... ......................... Coming to the instant case, as seen above, at the instance of the authorities of the State, the respondents submitted a detailed project report and, later, in the light of the suggestions/objections by the Central Electricity Authority, a revised project report in conformity with the suggestions. .................... ......................... Coming to the instant case, as seen above, at the instance of the authorities of the State, the respondents submitted a detailed project report and, later, in the light of the suggestions/objections by the Central Electricity Authority, a revised project report in conformity with the suggestions. The matter was processed at different levels and the Project received the approval of the Chief Minister in anticipation of the Cabinet `s approval. We do not find any violation of the laid down procedure. We do not also think that the manner of consideration suffered from any apparent error..." 22. These findings of the writ court remained unchallenged till date and have attained finality. The issue having been conclusively decided by the Division Bench, it does not lie in the mouth of respondents to say that the project was allotted and handed over in violation of laid down procedure and codal formalities. This appears to be a ploy simply to reject the report of the expert committee. 23. It may also be observed here that the expert committee as directed by the court comprised of (i) Shri H.A. Drabu, Financial Advisor to the State Government and presently also holding the office of Chairman of the J&K Bank, a prime bank of the country (ii) Shri A.H. Kochak, Law Secretary in the State Government; and (iii) Shri Jigmat Namgyal former Power Development Commissioner of the State. As a matter of fact, choice of the committee is laudable as it comprised of experts from all fields relevant for the issue in question. The committee after considering all the relevant factors, made its recommendations in the public interest. The Honble Division Bench while upholding the findings of the writ court, quashing the earlier Government Order and Cabinet Decision and the order taking over the Project, constituted a Committee to enable the respondents to decide the controversy based upon the opinion of the experts. Fortunately, the Committee had the experts from all the relevant fields namely the finance, law and technical i.e. Power Sector. The recommendations were unanimous. With due regard to the Cabinet, recommendations of the experts have just been brushed--aside without meeting the points formulated by the experts while making the recommendations. The grounds incorporated in the impugned order are totally irrelevant and un-connected with the issue considered by the Expert-committee on merit. The recommendations were unanimous. With due regard to the Cabinet, recommendations of the experts have just been brushed--aside without meeting the points formulated by the experts while making the recommendations. The grounds incorporated in the impugned order are totally irrelevant and un-connected with the issue considered by the Expert-committee on merit. It may not be lost sight of that the decision of the earlier Government has been reversed twice. It is not appropriate to make further comments but the fact remains that the successor Government should not reverse the decision merely because it was taken by the previous Government. 24. It may also be relevant to notice the plea raised by the petitioner regarding the malafide attributable to the then Chief Secretary of the State. Petitioner alleged malafide against respondent No.2, Dr. S.S. Biloria, the then Chief Secretary of the State. In ground-H of writ-petition, it is specifically alleged that respondent No.2 has been instrumental in passing the impugned order. According to petitioner, respondent No.2 became inimical to the petitioner on account of the fact that the Judgment of the Division Bench was not complied with and an application for initiating contempt proceedings was filed on 17-3-2005. The Division Bench issued show-cause notice to respondents 2 and 3 to show why they be not punished for contempt. Even the personal appearance of respondent No.2 was ordered. Respondent No.2 preferred an appeal before the Apex Court of India which was disposed of. It is alleged that Respondent No.2 feels that he has been humiliated because of contempt proceedings having been initiated by the petitioner wherein his personal appearance was ordered by the Court. Even, the conduct of Respondent No.2 was not appreciated by the Division Bench of this Court as also by the Supreme Court and even Newspapers carried some news. According to petitioner respondent No.2 sought report from the vigilance and he being the Secretary to the Cabinet, did not bring the true facts before the Cabinet and he is responsible for passing of the impugned order. 25. Reply affidavit has been filed by one Syed Shabir Hussain son of Syed Ahmed, Dy. Secretary in the Power Development Department. Respondent No.2 the then Chief Secretary chose not to deny allegations as there is no reply on his behalf. 25. Reply affidavit has been filed by one Syed Shabir Hussain son of Syed Ahmed, Dy. Secretary in the Power Development Department. Respondent No.2 the then Chief Secretary chose not to deny allegations as there is no reply on his behalf. However, keeping in view the other facts on record, I do not want to go into the question of malafide, though, whatever allegations have been made, remained un-rebutted and unanswered. 26. On conclusion of hearing when the matter was reserved for judgment, respondents were directed to produce the following record- " (i) Government Order No.979-GAD of 2004 dated 26-7-2004. (i) Cabinet memo and notings preceding the cabinet memo presented to the cabinet before passing the impugned Government Order No.131-PDD of 2005 dated 21-4-2005. (ii) Deliberations of the expert committee headed by Mr.Haseeb A Drabu and other record/material which is available with the committee. (iii) State Power Policy particularly dealing with the privatization of the power sector in the State." Mrs. Shaista Hakim, DY.A.G has produced the record noticed as below- "1) Cabinet Memo. (2) Government Order No.979-GAD of 2004 Dt.26-7-04 (3) Report of the Expert Committee. (4) Government Order issued pursuant to the Cabinet decision Order No.131-PDD of 2005 dt.21-5-2005 (4) Report of the Expert Committee. (5) State Hydel Policy." 27. Reference to the report of the Expert Committee and various orders has already been made, hereinabove. In the memorandum, for submission to the cabinet which culminated in passing of the impugned order, following is mentioned:- " It was, however, agreed in principle in the meeting held under the Chairmanship of the then Chief Secretary that such ventures from private sector need to be encouraged. Accordingly, the Jammu and Kashmir State Power Development Corporation Ltd. proceeded to enter into Memorandum of Understanding with M/s Shakti Hydro Electric Company and M/s Trehan Industries Corporation for renovation and modernization of Mohra Power House and Canal Power House respectively. It was further decided that before any understanding is made, a detailed project report shall be prepared and placed before Board of Directors of Jammu and Kashmir State Power Development Corporation Ltd.(JKSPDC Ltd.) for approval." 28. This memorandum when submitted to the Cabinet, contains the following enclosures:- "1. Court Judgment. 2. Report of Vigilance Organisation. 3. Report of the Committee." 29. One of the important documents namely report of Vigilance Oranisation has not been disclosed to the court. This memorandum when submitted to the Cabinet, contains the following enclosures:- "1. Court Judgment. 2. Report of Vigilance Organisation. 3. Report of the Committee." 29. One of the important documents namely report of Vigilance Oranisation has not been disclosed to the court. Therefore, the court is deprived of the opinion of the Vigilance Organization. It is, therefore, not possible to ascertain the basis for second ground in the impugned Government Order. Respondents have also produced the State Hydel Policy for participation of private developers in Small Hydro Projects as notified vide Government Order No. 78- PDD of2003 dated 8.4.2003 and modified vide Government Order No. 211- PDD of 2003 dated 9-10-2003. This policy has been made effective from the date of its publication as per para 2.1 of the policy. 30. As noticed above, prior to issuance of Government Order no.78-PDD of 2003 dated 8-4-2003, there was no specified Government norms, though as per para (3) of the Memorandum to the Cabinet, the State had taken a decision for encouraging private sector in power generation. The matter being in the realm of executive power, the then Government took a conscious decision to privatize the power generation in the State and with a view to involve the private sector, steps were taken initially for renovation/modernization of the defunct power projects in the State including the Canal Power House which was lying defunct for the last 20 years. The details of manner and method adopted have already been noticed in the judgment passed in OWP No.467/2003 and LPA (W) No.21/2004. Method and manner of allotment of power house to the petitioners is already upheld by this court in the concluded judgment referred to above. Therefore, it was not open for the State/Respondent to have re-opened the issued on the same ground on which their earlier decision namely the Cabinet Decision No.90/6 dated 19-5-03 and Government Order No.97-PDD of 2003 dated 21-5-03 were quashed by this court. 31. After having commented upon the grounds for passing the impugned order and arriving at the conclusion that the same do not constitute valid basis for passing the impugned order, this writ petition is allowed. Impugned order No. 131-PDD of 2005 dated 21-4-2005 and impugned communication No. SE/G-III/PDC/C-J/1-5 dated 22-4-2005 are hereby quashed. 31. After having commented upon the grounds for passing the impugned order and arriving at the conclusion that the same do not constitute valid basis for passing the impugned order, this writ petition is allowed. Impugned order No. 131-PDD of 2005 dated 21-4-2005 and impugned communication No. SE/G-III/PDC/C-J/1-5 dated 22-4-2005 are hereby quashed. Respondents are further directed to accept the report of the Expert Committee, hand over the possession of the Canal Power House to the petitioner as per the inventory prepared at the time of taking over of the project and settle the terms and conditions pursuant to the recommendations of the Expert Committee. Let decision in this regard be taken within a period of three months from today. Record produced shall form part of the court record.