KALPATARU POWER TRANSMISSION LTD Vs. STATE OF RAJASTHAN; RAJASTHAN RENEWABLE ENERGY CORPORATION LTD; RAJASTHAN STATE GANGANAGAR SUGAR MILLS LTD ; DY GENERAL MANAGER, RAJASTHAN STATE GANGANAGAR SUGAR MILLS LTD; STATE LEVEL EMPOWERED COMMITTEE

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India has been filed by the petitionercompany, which is registered under the Companies Act, 1956 having its registered office at 101, PartIII, GIDC Estae, Sector-28, Gandhinagar, Gujarat.

(2.) The case set up by the petitioner-company in this writ petition is that the State of Rajasthan formulated a policy for promoting generation of power through non-conventional energy sources on 11.03.1999 known as Policy for Promotion General of Power through Non-conventional Energy Sources, 1999 (for short 'the Policy of 1999' hereinafter). The petitioner-company being interested for setting up of power plant, based on biomass, deliberated with the RREC and the State of Rajasthan through various communications and ultimately persuaded the State of Rajasthan to reserve certain area for ensuring uninterrupted supply of biomass i.e. raw material for generation of electricity and the State of Rajasthan came out with amendment in the Policy of 1999 vide order dated 13.11.2001 and inserted a new subclause 8(4) in the said policy, which provides that if the State Government is satisfied with the progress achieved in the setting up of a biomass power plant at a duly approved site, no other biomass power plant shall be allowed within a radial distance of 50 km. of the site of first power plant. It is averred in the petition that based on the said reservation provided by the State Government in the Policy of 1999, the petitioner-company decided to set up two power plants in two districts of State of Rajasthan for generation of electricity from biomass. Permission for setting up power plant in Sri Ganganagar District has been granted by the State of Rajasthan and ultimately, the petitioner-company commissioned power plant based on biomass with a capacity of 7.8 MW on 15.07.2003 at Padampur in Sri Ganganagar district. It is averred in the petition that the policy of 1999 was in operation up to 31.03.2004 and a new Policy for Promoting Generation of Electricity through Non-Conventional Energy Sources, 2004 (for short 'the Policy of 2004' hereinafter) came into operation w.e.f. 25.02.2004 and in clause 16(i) of the Policy of 2004, it has been provided that the projects cleared under policy of 1999 shall continue to enjoy 50 km. reservation facility. It is further averred in the petition that the State Government framed a new policy in the year 2010 i.e. the Policy of 2010 and in clause 10.10 of the Policy it is provided that biomass power plants commissioned under the earlier policies of the State Government shall continue to be governed by the relevant policies in operation at the time of commissioning of project.

(3.) The petitioner-company claimed in the petition that as per the relevant provisions of the Policies of 1999, 2004 and 2010, in a radius of 50 kms. from the existing biomass base power plant of the petitioner-company, no other biomass base power plant can be permitted to be established. It is averred in the petition that on 02.05.2011, the RREC granted permission to the Sugar Mills to install 4.9 MW biomass base power project within the reserved area of the petitioner at Chak 23F Kamnipura, Tehsil Srikaranpur, District Sri Ganganagar and the action of the RREC was objected by the petitioner-company through a representation, however, when the grievance of the petitioner-company was not redressed, it filed a writ petition before this Court being SBCWP No.8781/2011 challenging the clause 10.2 of the Policy of 2010 and also the notice inviting tenders issued by the Sugar Mills for setting up of biomass base power plant for capacity of 4.9 MW. The said writ petition came to be dismissed by the learned Single Judge in limine vide judgment dated 20.09.2011, against which the petitionercompany preferred an appeal before the Division Bench being D.B.Civil Special Appeal No.1246/2011.