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Himachal Pradesh High Court · body

2013 DIGILAW 2 (HP)

Mohinder Singh v. State of Himachal Pradesh

2013-01-01

V.K.SHARMA

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JUDGMENT V.K. Sharma, J. Consequent upon issuance of advertisement notice dated 05.02.2007, Annexure P -5, jointly by the respondents through the P rincipal Secretary (NES) to the Government of Himachal P radesh, Shimla, and Chief Executiv e Officer , HI MURJA , Shimla, th e petitioners submitted applications for grant of projects identified by HI MURJA as per details given below vide Annexure P -6: “Petitioner nos. Details of the Project Applied For 1. Chaurasi Hydro Projects. Applied for Chobia IV 5MW code 139. Distt. Chamba. 2. Sole Prop. And authorized signatory for M/S KP Hydro Project. Applied for Dhanchoo II 5MW Code 137 in District Chamba. 3. Partner and authorized signatory for M/S Tribal Hydro Projects. Applied for Seri Kao SHP 5MW Code 134. 4. Lamu Hydro Projects. Applied for Chobia II 5 MW Code 141 Tehsil Bharmour, Distt. Chamba.” 2. For the purpose of disposal of the present writ petition one of covenants at serial No. 1 of the aforesaid advertisement notice highlighted as ‘IMPORT A NT’ is as under: “1. Small Hydro Projects upto 2.00 MW capacity shall be exclusively reserved for the bonafide Himachalis and Cooperative Societies comprising of the bonafide Himachalis. While allotting such projects upto 5.00 MW preference will be given to the bonafide Himachalis. If there are more than one Himachali (Applicant), preference shall be given to the person of the area or the District. Not more than 3 projects shall be allotted for implementation to an IPP.” 3. The above covenant is based on Hydro P o wer P o licy , 2 006, Annexure P -4, and Brochure (Annexure P -7) for private investors for allotment of small hydro projects (up to 5 MW) in Himachal Pradesh, which also contains other terms and conditions governing the matter. 4. It shall be pertinent to notice at this stage that all the four petitioners had applied separately for four separate projects up to 5.00 MW claiming preference, being bonafideHimachalis belonging to the area/District in which the proposed projects were to be set up. However, later on the following amendment was carried out in Clause 1.1(iii) of Hydro Power Policy, 2006, Annexure P-4, vide letter dated 30th April, 2007, Annexure P-9: “Clause 1.1(iii), Page-039 :- “……..If there are more than one Himachali (Applicant) preference shall be given to the person of the area or the District.” May be deleted.” 5. However, later on the following amendment was carried out in Clause 1.1(iii) of Hydro Power Policy, 2006, Annexure P-4, vide letter dated 30th April, 2007, Annexure P-9: “Clause 1.1(iii), Page-039 :- “……..If there are more than one Himachali (Applicant) preference shall be given to the person of the area or the District.” May be deleted.” 5. Thus, it is manifest that by way of the above amendment the preference given to the applicant belonging to the area or the district, in case there are more than one Himachali applicants, was taken away. Being aggrieved, the petitioners alongwith some other similarly situate persons invoked the writ jurisdiction of this Court by way of CWP No. 807 of 2007, Mohinder Singh & others vs. State of H.P. and another, wherein the following interim order dated 14.06.2007, Annexure P-10, was passed in CMP No. 1392 of 2007: “CMP No. 1392 of 2007: Notice in the aforesaid terms. In the meanwhile, process of assessment/appraisal of the various project reports for the Small Hydro Projects may go on, but final decision shall not be taken without the leave of this Court.” 6. It was during pendency of the aforesaid writ petition that the State Government vide letter dated 15.09.2007, which forms part of application, Annexure P-11, came forward with the stand that the above amendment in Clause 1.1(iii) in Hydro Power Policy, 2006, Annexure P-4, would take effect only prospectively and the applications received up to 30th April, 2007, which also included those submitted by the applicants, would be governed by the original un-amended policy. Based on this stand, application, Annexure P-11, under Section 151 of the Code of Civil Procedure, 1908, being CMP No. 2638 of 2007, was moved on behalf of the respondents therein to bring on record the aforesaid decision of the government dated 15.09.2007. Consequently, the writ petition was dismissed as withdrawn vide order dated 08.10.2007, Annexure P-12, as the grievance raised by the petitioners therein stood redressed. 7. Consequently, the writ petition was dismissed as withdrawn vide order dated 08.10.2007, Annexure P-12, as the grievance raised by the petitioners therein stood redressed. 7. Against the foregoing background, respondent No. 2-HIMURJA all of a sudden took a complete somersault vide letter dated 13.10.2009, Annexure P-13, virtually nullifying the aforesaid advertisement notice dated 05.02.2007, Annexure P-5, relating to the projects identified by HIMURJA itself and thereby decided to re-advertise those projects “only after proper survey & investigation and fixing up two main parameters i.e. optimum capacity of each project and clearcut elevation ranges, to avoid any possibility of future clashes between the projects, especially on the same river/stream”, albeit the fact that the projects identified by Independent Power Producers (IPPs) were left-out of the purview of this decision, which is sought to be justified on the averments setup vide para 3 of preliminary submissions incorporated in the reply to the writ petition filed on behalf of respondent No. 2, which are as follows: “3. That a condition had been made in the advertisement issued on 5.2.2007 that the Government of Himachal Pradesh reserve the right to reject any or all the applications without assigning any reason. It is submitted that it has been observed that the Hydro Power Potential in Himachal Pradesh is being suppressed by gross underutilization and fragmentation of a large more optimal scheme into smaller schemes of lower capacities so as to avail subsidies from MNRE as well as avail lower free power royalty slab for smaller projects, which is great loss to the Nation and the State. Taking serious view on the issue Go9vernment of H.P. decided to cancel all the applications and get the streams/rivers/nallah resurveyed to avoid fragmentations & ensure optimum utilization of the potential in these rivers/stream/nallahs and re-advertise the same after proper survey and investigation and fixing up two parameters i.e. optimum capacity of each project and clear cut elevation range to avoid any possibility of future clashes between projects. Hence the applications of the petitioners along with the applications of other applicants for the projects mentioned in this petition and other projects were rejected.” 8. Hence the applications of the petitioners along with the applications of other applicants for the projects mentioned in this petition and other projects were rejected.” 8. It is further averred as under vide para 1(iii) at pages 6 and 7 of the reply (running pages 111 and 112 of the paper book): “(iii) That re-investigation of the sites by HPSEB and Himurja lead to the capacity more, lower and more or less the same. The capacities of projects applied by the petitioners 1, 2 & 4 came out to more than 5 MW whereas the capacity of Seri-Kao applied by the petitioner-3 is more or less the same as was advertised. It is further submitted that Seri-Kao project was to be reinvestigated pending finalization of larger capacity project. “Harsar”. The elevations of Harsar HEP have now been finalized by HPSEB. Water of Seri-Kao is not being used for “Harsar” HEP Therefore the capacity is to remain more or less the same.” 9. In view of the above, it is apparent that insofar as Seri-Kao project applied for by petitioner No. 3, which was initially identified by HIMURJA itself to be 5MW capacity , is concerned, on re -investigation the same ha s been found to be mor e or les s of the sa me capacity as was advertised vide Notice dated 05.02.2007, Annexure P -5. T o this effect is Annexure P -15, listing ‘Projects Proposed for Advertisement’ wherein Seri Kao project finds mention at serial No. 21 and the same is of the capacity of 5MW. It was further found on investigation that water of Seri-Kao is not being used for larger capacity project known as ‘Harsar’. 10. Thus, as regards Seri-Kao Hydro Electric Project (HEP), letter dated 13.10.2009, Annexure P-13, whereby the concern owned by petitioner No. 3, Smt. Swarna Devi, namely Tribal Hydro Power, was informed that her application cannot be considered for allotment, does not hold good for the reasons that on the one hand even on re-investigation its capacity remains within the permissible limit of 5MW and on the other it does not interfere with any other project, especially on the same river/stream. Furthermore, even as per the stand on behalf of the respondents, taken in CWP No. 807 of 2007, Mohinder Singh & others vs. State of H.P. & another, referred to hereinabove, vide application, Annexure P-11, this project is liable to be dealt with in accordance with old policy on the basis of which Advertisement Notice dated 05.02.2007, Annexure P-5, was issued. 11. However, the position with regard to the remaining three projects for which applications were submitted by petitioners No. 1, 2 and 4, namely, (1) Chobia IV 5MW Code 139, District Chamba, (2) Dhanchho II 5MW Code 137, District Chamba and (3) Chobia II 5MW, Code 141, Tehsil Bharmour, District Chamba, is slightly different, as on re-investigation these projects have been found to be of the capacity of more than 5MW, for which petitioners No. 1, 2 and 4 are not entitled for any preferential allotment, being bonafide Himachalis/belonging to the area or the district in which the proposed projects are to be set up. However, their applications relating to these projects can also not be out-rightly rejected solely on this ground as they have a legal right to compete for these projects alongwith others as and when the same are re-advertised, in which event they shall also have the right to apply for these projects afresh. 12. In view of the above, the petition succeeds partly and is accordingly allowed in part. Consequently, letter dated 13.10.2009, Annexure P-13, is quashed with a direction to the respondents/competent authority to allot Seri-Kao 5MW Small Hydro Electric Project (SHEP) to the concern belonging to petitioner No. 3, Smt. Swarna Devi, viz. Tribal Hydro Power on the basis of application submitted by her pursuant to Advertisement Notice dated 05.02.2007, Annexure P-5, within two months from today. Needless to say that such allotment shall be on the same terms and conditions as specified in Advertisement Notice dated 05.02.2007, Annexure P-5. 13. The petition stands disposed of in the above terms. In view of disposal of the main writ petition, pending CMP No. 5367 of 2010 for interim relief shall also stand disposed of as infructuous.