ABC RENEWABLE ENERGY PRIVATE LIMITED Vs. NHPC LIMITED

JUDGEMENT

(1.) By way of the instant writ petition, the petitioners have prayed for the issuance of a writ in the nature of certiorari quashing the decision dated 06.03.2020 (Annexure P-1) as taken by respondent No.1 NHPC Limited, (hereinafter referred to as "NHPC") whereby the bid, submitted by petitioner No.1 for developing 400 MW of grid-connected Solar Photo Voltaic Power Project, has been rejected as being "non-responsive". A further prayer has been made for issuance of a writ in the nature of mandamus directing NHPC to consider the afore-said bid of petitioner No.1 as being "responsive". An alternate relief has also been sought to quash the bid-process initiated by NHPC and to return the bank guarantee furnished by petitioner No.1 towards Earnest Money Deposit and also to reimburse it (petitioner No.1) for an amount of Rs.28,98,571.42 as incurred by it in preparing and submitting the bid and participating in the bidding process.

(2.) Bereft of unnecessary details, the averments, as set-forth by the petitioners in the petition in hand, are that petitioner No.1 is a Company duly registered under the Companies Act, 2013 (for short "the Act of 2013"), having its registered office at Hyderabad and has been formed with the objective of developing and setting up renewable power projects across the country. It is a subsidiary of BIF-III FVCI Holdings India 1 Pvt. Ltd. (for short "BIF-III") which holds 51% stake in it. BIF-III is promoted by Brookfield Asset Management Inc., a global infrastructure, real estate, renewable and private equity investor. Petitioner No.1 is also a group Company of Axis Energy Ventures India Pvt. Ltd. (for short "Axis") which holds the remaining 49% stake in it. Axis had been established in the year 2010 with the objective of becoming a major renewable energy developer in the country and has developed renewable energy projects in India having total capacity of 1024 MW with additional projects of 774.9 MW in the advanced stages of development. Moreover, Axis has also entered into a Memorandum of Understanding (MoU) with the Government of Andhra Pradesh for the development of solar power projects of 5000 MW and also wind power projects of 5000 MW capacity. Petitioners No.2, i.e. Axis Wind Farms (Anantpur) Pvt. Ltd. and No.3, Axis Wind Farms (Rayalseema) Pvt. Ltd., are the Companies registered under the provisions of the Companies Act, 1956 (for short "the Act of 1956") having their registered offices at Hyderabad. Both these petitioners are the "affiliates" of petitioner No.1 under the provisions of Request for Selection (RFS) as these are owned and controlled by the same Company namely BIF-III. These "affiliate" petitioners own, operate and maintain two wind power projects of 105 MW capacity each in Andhra Pradesh.

(3.) The petitioners have, further, averred that NHPC is an enterprise of the Government of India and is mandated to plan, promote and organize an integrated and efficient development of power in all aspects through conventional and non-conventional sources in the country and abroad. In order to procure and supply solar power to the state distribution companies (discoms) across the country for supply to the consumers and to enable the discoms to meet their renewable power purchase obligations in a cost-effective manner and to encourage the solar power generation in the country, NHPC issued the RFS on 06.01.2020 inviting bids for setting up grid-connected Solar Photo Voltaic Power Projects of minimum project capacity of 50 MW and maximum capacity of 600 MW at multiple locations in the country on a build, own and operate basis. The aggregate capacity of the solar projects selected through the RFS is 2000 MW. As per the RFS, the solar power produced by the selected bidders from their respective projects would be purchased by the NHPC under the Power Purchase Agreements with a term of 25 years for sale to various discoms in the country. The said RFS set out detailed instructions for the bidders for submission of bids as well as the technical and financial eligibility criteria and also contemplated for short-listing the bidders through a single-stage Two Envelope e-bidding process with Envelope No.1 containing the technical bid and Envelope No.2 having the financial bid. The technical bid related to the documents pertaining to the qualification requirements as specified in Clause 3.8 and the financial bid was supposed to contain the first round tariff bid. The financial bids of only those bidders were to be opened who fulfilled the eligibility criteria as contained in Clause 3.8 of the RFS. The short-listed bidders were eligible to participate in an e-reverse auction where they could quote any value lower than their first quoted tariff and the lowest quoting bidder was to be allotted its qualified capacity of project(s) at the last quoted tariff and this process was to continue till the offered capacity of the project was fully allotted.