Point of Law : State has suffered loss on account of the fact that initially the project got embroiled in litigation and thereafter SJVNL has not been able to commence the work till date on account of the opposition of the general public.

ORDER :

Being aggrieved and dissatisfied with issuance of communication dated 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:

"(a) that this Hon'ble Court be pleased to issue a Writ of Certiorari or a Writ in the nature of Certiorari, or any other appropriate Writ, Order or direction, calling for the records and proceedings leading to the issuance of the impugned letter dated 7th December, 2017 (Annexure-R hereto) and after going into the legality, validity and propriety thereof, to quash and set aside the same.

(b) that this Hon'ble Court be pleased to issue a Writ of Certiorari, or a Writ in the nature of Certiorari, or any other appropriate Writ, Order or direction calling for the records and proceedings leading to the issuance of the impugned letter dated 10th October, 2017 (Annexure-N hereto) and after going into the legality, validity and propriety thereof, to quash and set aside the same.

(c) That this Hon'ble Court be pleased to issue a Writ of Mandamus, or a Writ in the nature of Mandamus, or any other appropriate Writ, Order or direction, directing the Respondents by themselves, their servants, agents, officers and subordinates to forthwith refund the sum of Rs.280.969 crores together with interest thereon @ 18% p.a. from the date of receipt of the payment until refund to the petitioner.

(d) that pending the hearing and final disposal of this petition, this Hon'ble Court be pleased to direct the Respondents by themselves, their servants, agents, officers and subordinates to forthwith pay a sum of Rs.280.969 crores to the Petitioner.”

History of the case

2. For having bird’s eye view of the matter, certain undisputed facts, which may be relevant for the adjudication of the case at hand, are as under.

3. 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, dated 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, ‘Lol’) 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 Lol, Brakel was directed to sign a Pre-implementation Agreement (hereinafter, ‘PIA’) and deposit the upfront premium. Br