MAGPIE HYDEL CORP LTD Vs. STATE

JUDGEMENT

(1.) WRIT Petition on hand owes its origin to the policy evolved by the Government vide Govt. order No. 78 -PDD of 2003 dated 08 -04 -2003, superseded by order No. 211 -PDD of 2003 dated 09 -10 -2003, called "the State Hydel Policy" (Policy hereinafter), with an objective to encourage generation of power through small hydro power sources of energy, aimed at promotion of all round development of the region and in pursuance of the said policy, the Government invited bids for identified projects, from the Central Power Utilities, State Governments, Government Entities and their Joint Ventures, besides, Independent Power Producers (for short IPPs). In response thereto, the petitioner applied for three projects, namely Athwatoo (Bandipora), Tangmarg (Baramulla) and Mandi (Poonch) which came to be allotted to him vide allotment Nos. CE/CPD/234 -39 dated

(2.) 05.2005, CE/CID/PDC/633 -36 dated 20.06.2005 and CE/CID/238 -41 dated 02.05.2005 respectively, requiring the parties to enter into the agreements i.e. Implementation agreement and Wheeling and Banking agreement, on mutually agreed terms and conditions within two months to be reckoned from the date of issuance of allotment letters. Case set up by the petitioner is that despite his representations and reminders, the respondents failed to execute the agreements, leaving no option for him but to invoke the extra ordinary writ jurisdiction of this Court. Per contra, the respondents have attributed delayed execution of the agreements to the petitioner. 2. Significantly neither of the parties disputes obligation to execute the agreements which intention was expressed unambiguously on 26.03.2009 by learned counsel for the parties during the course of final arguments. It was in that context that the learned appearing counsel for the parties were asked to explore the possibility to come round by execution of agreements. Accordingly, the petitioner was directed to report before the Respondent 3 -Managing Director (MD hereinafter) on 30.03.2009 with a further direction to inform the Court about the outcome of the meeting on the next date but instead of reporting before the MD, the petitioner through his counsel laid a motion supported by documents to be read as part of his pleadings, contending therein that the petitioners appearance before the MD would be of no relevance because he (MD) had already proposed and recommended the amendments to the draft agreement. The averments made in the application were replied evasively, suggesting neither admission nor denial of the documents, giving rise to a presumption of correctness thereto, for, law is settled that if denial of a fact or a document is not specific but evasive, it amounts to admission of that fact or document as the case may be. The respondents having opted for an evasive reply, the documents could be taken to have been admitted, requiring no further proof, yet with a view to do substantial justice between the parties, further opportunity was granted to the respondents to answer the point of substance, viz. as to whether they admit or deny the documents which was availed of and replies on affidavits were filed, authenticating the contents of the documents filed by the petitioner excepting 'annexure A. In that view of the matter, I choose to adjudicate upon the controversy on the basis of those documents only which are admitted by the respondents and to proceed in that direction, the objections filed by the respondents are summarized hereunder; i) In absence of execution of the agreements, the petitioner was not supposed to commence the work on the projects. ii) The petition raises disputed questions of fact therefore, in terms of clause 18 of the policy, the petitioner was required to approach the Government for settlement of the dispute. iii) The delay in execution of agreements is caused by the petitioner and not by the respondents; iv) Because of non execution of the Implementation agreement, wheeling and banking agreement could not be executed and signed.

(3.) HAVING taken note of the objections, I would like to scrutinize them in seriatim. Beginning with the first one that the petitioner could not have commenced the work without execution of agreements, reference to condition (4) of the allotment letters becomes imperative which reads; "Notwithstanding execution of formal agreement on a subsequent date, the milestones mentioned in the bid document will be reckoned from the date of issuance of this letter of allotment........." In addition to that, the respondents had reminded the petitioner about the import of the condition vide their communication bearing No. CE/C1D/PDC/2185 dated 10.01.2006, relevant paragraph whereof reads: ".....Delay in drawl/acceptance shall have no impact on the allotment of projects." Gravamen of the condition extracted above is, that non execution of the agreements on a subsequent date would not furnish an escape route to the petitioner in achievement of milestones mentioned in the bid document and same shall have to be reckoned from the date of issuance of the letter of allotment. That being the mandate of the condition of the allotment letters, absence of a formal agreement by no stretch of imagination could work as an impediment for execution of the project, obviously objection fails.