Deepak Gupta, J-By means of this writ petition, the petitioner Reliance Infrastructure Limited (here-in-after referred to as RIL) has prayed for the issuance of an appropriate writ for quashing the decision taken by the State of Himachal Pradesh on 25.11.2008 in respect of the two hydroelectric projects, namely, Jangi Thopan and Thopan Powari of 480 MW each alongwith the letter of award in favour of respondent No.4 (M/s Brakel Corporation NV (here-in-after referred to as Brakel). The petitioner has also prayed that respondent No.4 and respondent No.5 M/s Brakel Kinnaur Power Limited (here-in-after referred to as M/s Brakel Kinnaur) be restrained from entering into any other agreement on the basis of the decision dated 25.11.2008. The petitioner also prayed that the aforesaid hydro-electric projects be awarded to them.

2. The Factual Matrix:

3. The State of Himachal Pradesh issued an advertisement in October, 2005, which was a global invitation inviting bids for implementation of Hydroelectric projects in the State of Himachal Pradesh. The invitation inviting bids provided that the bidders should have strong financial and technical basis with adequate free investible reserves and surpluses necessary for development of the hydro-electric project(s). The bidders were also required to have requisite technical capability. As per this invitation, 50% of the upfront premium was to be paid immediately on the issuance of the letter of award. Last date for submission of bid document was 21.1.2006. The bid documents were issued in November, 2005. The petitioner and respondents both purchased the bid documents. Thereafter on 27.12.2005 the State issued a corrigendum to the notice inviting offers and a further condition was incorporated that the State of Himachal Pradesh shall have the right of equity participation upto 49% in the Hydro Electric Projects on selective basis. The last date for submission of bids was extended upto 16.3.2006. The petitioner as well as respondent No.4 submitted their bids for the Jangi Thopan and Thopan Powari Projects of 480 MW each. Certain queries were raised by the respondent No.2 H.P. State Electricity Board in respect of the bids and finally the bids of all short-listed bidders were opened on 5.9.2006. Respondent No.4, Brakel, was found to be highest bidder for both the projects. On 16.11.2006, the petitioner offered to match the bid of respondent No.4. On 1st December, 2006 letter of intent was issued by the State in favour of respondent No.4 awarding it both the contracts, as it was the highest bidder having bid Rs.36 lacs per megawatt. It was directed to sign the Pre-Implementation Agreement and deposit the upfront premium. On 9.12.2006 Brakel accepted the letter of intent and informed the Government of Himachal Pradesh that they are going through the draft Pre Implementation Agreement (PIA). In the meantime, on 11.12.2006 the State of Himachal Pradesh notified the H.P. Hydro Power Policy. Admittedly, Brakel did not deposit the upfront premium.

4. On 20.8.2007 the petitioner sent a letter to the Government that it was willing to match the bid of respondent No.4 and that since respondent No.4 had not deposited the upfront premium the projects be awarded to it. Again on 25.9.2007 and 1.11.2007 the petitioner wrote letters on similar lines to the Government. Finally on 17.11.2007 the petitioner filed a civil writ petition in this Court which was numbered as CWP No. 2074 of 2007. The matter was listed before the Court on 13th December, 2007 when notice was issued to the State to file its response.

5. On 7th January, 2008 before filing reply to the writ petition, the State issued a show cause notice to Brakel asking it to show cause why allotment of the two projects be not cancelled in view of the fact that respondent No.4 had not paid any up front premium nor taken any steps to implement the projects. On 29.1.2008, respondent No.5 Brakel Kinnaur Pvt. Ltd, on behalf of the respondent No.4 Brakel Co