ADANI POWER LIMITED Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Being aggrieved and dissatisfied with issuance of communication dtd. 7/12/2017 (Annexure-R)(page-187), issued by the Special Secretary (Power) to the Government of Himachal Pradesh, whereby the petitioner came to be apprised that due to various legal intricacies and contractual complications involved in the matter, the Council of Ministers has reconsidered and reviewed the decision taken in its meeting held on 4/9/2015, to refund the amount of upfront premium deposited by the petitioner for Jangi-Thopan- Powari Power Project, petitioner has approached this Court in the instant proceedings filed under Art. 226 of the Constitution of India, praying therein for the following main reliefs:

(2.) In October, 2005, State of Himachal Pradesh floated global tender in respect of two Hydro-Electric Projects Jangi-Thopan-Powari Power Project of 980 MW (hereinafter, 'JTP Projects'). Though, initially, last date of submission of bid was 21/1/2006, but on account of issuance of corrigendum, dtd. 27/12/2005 whereby a condition was incorporated in the tender that the State of Himachal Pradesh shall have the right of equity participation to the extent of 49% in the Hydro-Electric Project on selective basis, the last date of submission of bids was extended to 16/3/2006, Tender Inviting Bids provided that the bidders should have strong financial and technical pre-investment resources for development of Hydro-Electric Project. As per tender, 50% of upfront premium was to be paid immediately on the issuance of Letter of Intent (hereinafter, 'LoI'). One M/s Brakel Corporation NV (hereinafter, 'Brakel') participated in the bidding process alongwith another company namely Reliance Infrastructure Limited (hereinafter, 'RIL'). Though, before opening of the bids, certain queries were raised by Himachal Pradesh State Electricity Board Limited (hereinafter, 'HPSEBL') but on 5/9/2006, all the shortlisted bids were opened and Brakel was found to be the highest bidder for the projects. On 16/11/2006, RIL offered to match its bid to that of Brakel, but on 1/12/2006, the Letter of Intent (hereinafter, 'LoI') was issued by the State in favour of Brakel, awarding therein both the contracts being the highest bidder, having bid of Rs.36.00 Lakh/MW. After issuance of LoI, Brakel was directed to sign a Pre-implementation Agreement (hereinafter, 'PIA') and deposit the upfront premium. Brakel accepted the LoI and informed the Government of Himachal Pradesh that they are going through the draft PIA.

(3.) In the meantime, on 11/12/2006, State of Himachal Pradesh notified the Himachal Pradesh Hydro Power Policy (hereinafter, 'Policy') permitting the investment by third party to the extent of 49% of the paid up capital of the lead member, which in the case at hand was Brakel, who otherwise as per terms and conditions of the LoI as well as the Policy also set up an Indian subsidiary namely Brakel Kinnaur Power Private Limited (hereinafter, 'BKPPL'). Since Brakel did not deposit the upfront premium qua the projects awarded in its favour within the stipulated time, RIL on 20/8/2007, sent a letter to the Government that it was willing to match the bid of Brakel, but since no heed was paid to the aforesaid request of RIL, it filed CWP No. 2074 of 2007 in this Court. However, during the pendency of the aforesaid writ petition, respondent-State issued a show cause notice on 7/1/2008, to Brakel, asking it to show cause that, why the allotment made in its favour of two projects, be not cancelled on account of the fact that neither it paid the upfront premium, nor took any steps to implement the projects.