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2018 Supreme(UK) 217
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Sudhanshu Dhulia, J.
Mrs. Sheela Bahuguna - Petitioner
Versus
Union of India & Others - Respondents
Writ Petition (M/S) Nos. 2964, 2975 & 3253 of 2017
Decided On : 13-06-2018
Advocate Appeared:
For the Petitioner: Mr. Arvind Vashistha, Mr. K.P. Upadhyaya
For the Union of India : Mr. Lalit Sharma, Ms. Pushpa Bhatt
For the State : Mr. Anurag Bisaria
For the Respondents: Mr. V.K. Arora
The main legal point established in the judgment is the interpretation of the eligibility criteria for government subsidies for rooftop solar installations, emphasizing the importance of installations being on residential buildings and the capacity limitations. The judgment also highlights the application of the doctrine of Promissory Estoppel in holding the government accountable for withholding the subsidy after the petitioners had made the installations in reliance on the scheme.
Headnote:
Solar Energy - Government Scheme - Jawaharlal Nehru National Solar Mission, 2010-11, Grid Connected Rooftop and Small Solar Power Plants Programme - 3.2, 6.2, 6.3 - The court discussed the Government of India's scheme to promote solar energy through subsidies for rooftop solar photovoltaic power generation plants. The court interpreted the eligibility criteria for subsidies, emphasizing the importance of installations being on residential buildings and the capacity limitations. The court also considered the concept of rooftop solar and the definition of residential buildings in the context of the scheme.
Fact of the Case:
The petitioners installed rooftop solar power plants in their residential buildings in compliance with the Government of India's solar energy scheme. However, they were later informed that they were not eligible for the subsidy due to the installations being on the appurtenant land of the buildings.
Finding of the Court:
The court found that the installations on the appurtenant land of the buildings should still be eligible for the subsidy, as the scheme's vision document and the lack of a clear definition of 'rooftop solar' supported this interpretation. The court also applied the doctrine of Promissory Estoppel, holding the government accountable for withholding the subsidy after the petitioners had made the installations in reliance on the scheme.
Issues: The key issues were the eligibility of rooftop solar installations on the appurtenant land of residential buildings for the government subsidy and the application of the doctrine of Promissory Estoppel in the context of the government's scheme.
Ratio Decidendi: The court held that installations on the appurtenant land of residential buildings should be eligible for the subsidy, and the government should not withhold the subsidy after the petitioners had made the installations in reliance on the scheme. However, the court clarified that installations outside the actual residential house of the claimant would not be eligible for the subsidy.
Final Decision: The court partly allowed the writ petitions, modifying the impugned order to allow the government to inspect the projects and either sanction them or limit the sanction to permissible areas under the law.
Sudhanshu Dhulia, J.
Dispute involved in all these writ petitions is common, hence these are being decided by this common judgment. For the sake of reference, the facts of WPMS No.2964 of 2017 (Mrs. Sheela Bahuguna Vs. Union of India & others) is being referred herein below.
2. The Government of India in order to give incentive for the use of “alternative sources of energy”, such as “solar energy”, has come up with various schemes from time to time, through its Ministry of New and Renewable Energy. In furtherance of this policy for the use of solar energy, a scheme was introduced by the Government of India to encourage the use of “Grid Connected Rooftop and Small Solar Power Plants Programme”, on residential buildings and industrial/commercial establishments. The Scheme was introduced on 26.06.2014 and it was a part of Jawaharlal Nehru National Solar Mission and the particular guidelines was called “Grid Connected Rooftop and Small Solar Power Plants Programme” (from hereinafter referred to as “RTS”). The background of the scheme which is contained as Annexure to the order dated 26.06.2014 is extremely important and it must be reproduced. It lays down as under:-
“The Government had launched Jawahrlal Nehru National Solar Mission during 2010-11, which is a major initiative of the Government of India and State Governments to promote ecologically sustainable growth while addressing India’s energy security challenge. It will also constitute a major contribution by India to the global effort to meet the challenges of climate change.
The immediate aim of the Mission is to focus on setting up an enabling environment for solar technology penetration in the country both at a centralized and decentralized level. The first phase (up to 31st March 2013) focused on promoting off-grid systems including hybrid systems to meet/supplement power, heating and cooling energy requirements. Based on the experience gained during the 1st phase of the Mission, the programme is being expanded with a focus on energy access and replacement of fossil fuels with renewable energy. These systems still require interventions to bring down costs but the key challenge is to provide an enabling framework and support for entrepreneurs to develop markets. The scheme is completely demand driven.
Solar energy including thermal and PV is second largest renewable energy source after wind energy. Around 60 million households worldwide use solar hot water collectors. Total worldwide installed capacity is 235 GWth (335 million sqm.). India was ranked 4th in the world in terms of new capacity addition during the year 2011. Installed capacity for India stands at 7.281 million sq m2 equivalent to 5082 MWth till 30th October 2013. Worldwide these achievements were possible with interventions in the form of capital subsidy/incentive in Electricity bill/mandatory provisions through heat laws.
In India Fossil fuels are being used for process heating, drying, distillation/desalination, water heating, space heating, refrigeration and power/electricity generation. Nearly 25 million households are using electric geysers, consuming ~ 7500 GW-hr of electricity (assuming minimum annual consumption of ~600 KWh/year/geyser) and 15 million tons/year of petroleum fuels are used in industries in thermal form at temperature below 300° C. It is assumed that 30% of energy consumed in industry is used for heating water, which shows that there is a huge potential.
There is a large potential available for generating solar power using unutilized space on rooftops and wastelands around buildings. Small quantities of power generated by each individual household, industrial building, commercial building or any other type of building can be used to partly fulfill the requirement of the building occupants and surplus, if any, can be fed into the grid. The roof-top SPV systems on building’s roof space can be installed to replace DG gensets for operation during load shedding.
The price of power generat
