The Tata Power Company Limited And ... vs Union Of India And Others
2009 Latest Caselaw 1360 Del

*          HIGH COURT OF DELHI : NEW DELHI

+          Writ Petition (Civil) No.62 of 2009

                               Judgment reserved on: February 24, 2009

%                                 Judgment delivered on: April 13, 2009

1.   The Tata Power Company Limited
     having its registered office at
     „Bombay House‟
     24, Homi Mody Street
     Mumbai - 400 001
     (through Mr. Bomi J. Shroff
     Company Secretary & Constituted Attorney)

2.   Mr. Bomi J. Shroff
     Company Secretary of Petitioner No.1
     „Bombay House‟
     24, Homi Mody Street
     Mumbai - 400 001.                                ...Petitioners

           Through    Mr. Jaideep Gupta, Sr. Advocate with Mr. Sitesh
                      Mukherjee, Mr.U. Hazarika, Mr. Sakya Singha
                      Chaudhari, Mr. Vishal Anand & Ms. Megha Sen,
                      Advs.

                      Versus

1.   Union of India
     Cabinet Secretariat
     Rashtrapati Bhawan
     New Delhi-110004
     (through the Cabinet Secretary)

2.   Ministry of Coal (Union of India)
     Room No.321AI, A Wing
     Shastri Bhawan
     New Delhi-110001
     (through the Secretary, Ministry of Coal)

WP (C) No.62/2009                                             Page 1 of 28
 3.   Ministry of Power (Union of India)
     Shram Shakti Bhavan
     New Delhi-110001
     (through Secretary, Ministry of Power)

4.   Sasan Power Limited
     "Chandralok" Building
     36, Janpath
     New Delhi-110001
     (through Chairman/Managing Director)

5.   Reliance Power Limited
     Reliance Energy Centre
     Santacruz (East)
     Mumbai-400055
     (through Chairman/Managing Director)

6.   Government of Madhya Pradesh
     State of Madhya Pradesh
     Secretariat, Bhopal
     (through Chief Secretary)

7.   Power Finance Corporation
     „Urjanidhi‟
     1, Barakhamba Lane, Connaught Place
     New Delhi-110001
     (through Chairman/Managing Director)

8.   Paschimanchal Vidyut Vitran Nigam Limited
     PIME, Victoria Park
     Meerut, Uttar Pradesh
     (through Chairman/Managing Director)

9.   Purvanchal Vidyut Vitran Nigam Limited
     DLW Hydel Colony, Bhikharipur
     Varanasi-221004
     (through Chairman/Managing Director)




WP (C) No.62/2009                                Page 2 of 28
 10. Madhyanchal Vidyut Vitran Nigam Limited
    AA, Gokhle Marg
    Lucknow-226001
    (through Chairman/Managing Director)

11. Dakshinanchal Vidyut Vitran Nigam Limited
    Urja Bhawan, NH-2, Sikandra
    Agra-282007, U.P.
    (through Chairman/Managing Director)

12. Ajmer Vidyut Vitran Nigam Limited
    City Power House, Hathi Bhata
    Ajmer-305001
    (through Chairman/Managing Director)

13. Jaipur Vidyut Vitran Nigam Limited
    Joythy Nagar, Jaipur
    (through Chairman/Managing Director)

14. Jodhpur Vidyut Vitran Nigam Limited
    New Power House, Industrial Area
    Jodhpur-342003
    (through Chairman/Managing Director)

15. North Delhi Power Limited
    Grid Sub Station Building
    Hudsonlines, Kingsway Camp
    Delhi-110009
    (through Chairman/Managing Director)

16. BSES Rajdhani Power Limited
    BSES Bhawan, Nehru Place
    New Delhi-110019
    (through Chairman/Managing Director)

17. BSES Yamuna Power Limited
    Shakti Kiran Building, Karkardooma
    Delhi-110092
    (through Chairman/Managing Director)


WP (C) No.62/2009                               Page 3 of 28
 18. Punjab State Electricity Board
    The Mall, Patiala-147001
    [through Member (Generation)]

19. Haryana Power Generation Corporation Limited
    Shakti Bhavan, Sector-6, Panchkula-134109
    (Through SE/PPM/Chairman)

20. M.P. Power Trading Company Limited
    Shakti Bhavan, Vidyut Nagar, Jabalpur-482008
    (through Chairman/Managing Director)

21. Uttarakhand Power Corporation Limited
    Urja Bhavan, Kanwali Road, Dehradun-248001
    (through Chairman/Managing Director)           ...Respondents

          Through   Mr. P.P. Malhotra, ASG with Mr. Gaurav Duggal,
                    Mr. Shanker Chhabra & Mr. Chetan Chawla,
                    Advs. for Respondents No. 1 to 3.
                    Mr.Soli J. Sorabjee, Mr.Mukul Rohtagi and
                    Mr.Rajiv Nayar, Sr. Advocates with Mr.Mahesh
                    Agarwal, Mr.Rishi Agarwal, Mr.Sandeep Mittal,
                    Mr.Nikhil Rohtagi, Mr.Akshay Ringe and
                    Ms.Rohna Hameed, Advs. for Respondents 4 & 5.
                    Mr. R.N. Trivedi, Sr. Advocate with
                    Mr.R.K. Joshi, Adv. for Respondent No.7.
                    Mr. B.P.Singh Dhakray with Mr. Shakti Singh
                    Dhakray and Mr. D.K. Sharma, Advs. for
                    Respondent No.11.
                    Mr. Jayant Bhushan, Sr. Advocate, with
                    Mr. Santosh Kumar, Mr. R.S. Biswas and
                    Mr. M. Chakraborty, Advs. for Respondent-15.
                    Mr. Manish Srivastava, Adv. for Respondent-16
                    & 17.
                    Ms. Madhu Tewatia with Ms. Sidhi Arora, Adv.
                    for Respondent No.18.
                    Mr. Alishan Naqvee & Ms. Rupal Bhatia, Advs.
                    for Respondent No.20.



WP (C) No.62/2009                                        Page 4 of 28
 Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                               Yes

2. To be referred to Reporter or not?                            Yes

3. Whether the judgment should be reported
   in the Digest?                                                Yes

MADAN B. LOKUR, J.

The issue raised for our consideration is whether we should

entertain this writ petition filed by the Petitioner (Tata Power)

challenging a decision taken by the Empowered Group of Ministers on

14th August, 2008. This issue arises in view of an allegation of

suppression of a material fact, an alleged absence of locus standii of

Tata Power to maintain the writ petition and its delay and laches in

approaching this Court for relief during which period several important

and significant developments have taken place. In our opinion, all these

allegations are well founded and this is not an appropriate case

warranting the exercise of our discretion under Article 226 of the

Constitution. In our opinion, the writ petition deserves in limine

dismissal.

2. On or about 31st January, 2006 the Government of India

through the Ministry of Power issued a global invitation for expression

of interest for selecting a developer to set up an Ultra Mega Power

Project (UMPP) of 400 mega watts at Sasan, District Sidhi in Madhya

Pradesh. The Government invited a Request for Qualification followed

by a Request for Proposal from the pre-qualified bidders.

3. There is no dispute that the Petitioner (Tata Power) was fully

qualified and it also submitted a bid for the Sasan UMPP. Similarly,

there is no dispute that Respondent No.5 (Reliance Power) was also

qualified and submitted its bid.

4. The tender documents suggested that captive coal mines would

be allotted to the Sasan UMPP and being a part of the project, they were

linked for the exclusive use of the Sasan UMPP. In this regard, the

Ministry of Coal of the Government of India approved the Moher and

Moher-Amlori Extension Coal Blocks as captive coal mines for the

Sasan UMPP. This was in September, 2006. A little later, the

Chhatrasal Coal Block was also approved for captive use by the Sasan

UMPP in October, 2006. Both the allocation letters are of some

importance and will be adverted to a little later.

5. When the bids were opened, it was found that one Globleq

Singapore Consortium (GSC) was the lowest bidder and, accordingly,

on 28th December, 2006 a Letter of Intent was awarded to GSC for the

Sasan UMPP. It transpires that it was later concluded by the Central

Government that GSC did not possess the requisite qualifications as

represented by it and so a letter was issued on 25th May, 2007 to all the

qualified bidders to extend their bid validity for the Sasan UMPP.

However, no reason was assigned for requiring the qualified bidders to

extend the validity of their bids.

6. According to Tata Power, it did not extend its bid validity

because it was known that the Letter of Intent had been awarded to GSC

and in the absence of any specific reason requiring extension of the

validity of the bid, Tata Power did not feel it necessary to comply with

the request. On the other hand, Reliance Power extended its bid

validity.

7. When the Central Government came to the conclusion that

GSC was not qualified, it cancelled the Letter of Intent but did not issue

the tender again. However, the bidders who had extended the validity of

their bid were asked to match the rates quoted by GSC. Of the bidders

left in the field, only Reliance Power could match the bid of GSC and it

was, therefore, selected as the successful bidder and on 30th July, 2007 a

Letter of Intent was issued to Reliance Power. This was followed soon

after with a Power Purchase Agreement being entered into between the

Central Government and Reliance Power on 7th August, 2007.

8. It appears that around this time, Reliance Power entered into a

Memorandum of Understanding with the Government of Madhya

Pradesh for setting up a 4000 mega watts power plant at Chitrangi in the

State of Madhya Pradesh. In respect of the Chitrangi project, the

Government of Madhya Pradesh had apparently written to the

Government of India to permit Reliance Power to use incremental coal

produced from the coal blocks allotted to Sasan UMPP for the power

plant to be set up at Chitrangi.

9. Acting on the request made by the State of Madhya Pradesh,

an Empowered Group of Ministers met on 14th August, 2008 (that is,

about a year later) and recommended to the Ministry of Coal to permit

the use of the incremental coal blocks allotted to Sasan UMPP by

Reliance Power. This was, of course, subject to certain conditions

stipulated by the Empowered Group of Ministers.

10. On these broad facts, the grievance made out by Tata Power is

simply this: The recommendation made by the Empowered Group of

Ministers on 14th August, 2008 completely changed the economics of

the Sasan UMPP and, therefore, that decision should be quashed and set

aside. The consequential relief prayed for by Tata Power is that

Reliance Power should not be allowed to utilize the coal from the

captive mines allocated for the Sasan UMPP or, if necessary, the entire

project be retendered. According to Tata Power, since the economics of

the project has completely changed, the entire tender process is vitiated.

11. The Union of India through the Ministry of Power and

Ministry of Coal appeared on advance notice and filed a counter

affidavit wherein it has broadly been submitted that Tata Power has

suppressed material facts and documents inasmuch as all the bidders

were specifically told by a letter dated 20th November, 2006 that as in

the case of the Chhatrasal coal block, the Central Government was

entitled to approve the sale, delivery, transfer or disposal of coal from

the Moher and Moher-Amlori Extension coal blocks for purposes other

than captive mining for the Sasan UMPP. It was submitted that under

these circumstances, there was no deviation of the tender conditions or

any alteration therein to the advantage of any particular bidder or to the

disadvantage of any particular bidder. The Union of India has also

submitted that Tata Power is not a person aggrieved inasmuch as it had

withdrawn from the tender process by not extending the validity of its

bid. As such, it could not maintain the writ petition.

12. Reliance Power also entered appearance on advance notice and

filed a counter affidavit in which, in addition to challenging the locus

standi of Tata Power to maintain the writ petition, it was submitted that

the writ petition suffers from delay and laches inasmuch as the tender

process has come to an end after the execution of all the project

documents. That apart, it was submitted that the Empowered Group of

Ministers took a decision in August, 2008 while the writ petition was

filed in January, 2009 after an unexplained gap of five months.

13. During the course of oral submissions, learned counsel for

Tata Power denied the allegations. He also made it absolutely clear that

his client was not challenging the award of Letter of Intent or the Power

Purchase Agreement in favour of Reliance Power but the grievance of

Tata Power was that the tender process was vitiated by the changes

made by the Union of India, more particularly as a result of the decision

taken by the Empowered Group of Ministers on 14th August, 2008.

14. At this stage, it is necessary to refer to the three documents

adverted to above.

(i) Allocation letter dated 13th September, 2006 re the working of

the Moher and Moher-Amlori Extension coal blocks. The relevant

extract of this document reads as follows:

"Sir,

I am directed to refer to Secretary, Ministry of Power letter No. 2/29/2005-P & P dated 29.03.2006 & 18.04.2006 on the above subject and to convey the „in principle‟ approval of the Central Government to the working of Moher (402MT) and Moher-Amlori Extension (198MT) coal blocks by the M/s Sasan Power Limited (SPL) (a wholly owned subsidiary of the Power Finance Corporation), which is a SPV created for development of Sasan Ultra Mega Power Project (UMPP). The developer of the UMPP would finally be decided by the Government on the basis of tariff based International Competitive Bidding. This allocation is being done subject to the conditions given

hereunder: -

i) The coal produced from the above mines would be exclusively used in the Sasan UMPP.

              ii) to vi) xxx      xxx        xxx"


(ii)     Allocation letter dated 20th October, 2006 re the working of

the Chhatrasal coal block. The relevant extract of this document reads

as follows:

"Sir, I am directed to refer to Secretary, Ministry of Power D.O. letter No. 12/8/2006-P&P dated the 9th October, 2006 and to say that in suppression of this Ministry‟s letter No. 13016/29/2003 CA-I dated 25th January, 2006 vide which Chhaatrasal coal block was allocated to NTPC, it has now been decided to cancel the allocation of this block no. NTPC in the public interest and convey „in principle‟ approval of the Central Government to the working of Chhaatrasal coal block by M/s. Sasan Power Limited (SPL) (a wholly subsidiary of the Power Finance Corporation). The developer of the UMPP would finally be decided by the Government on the basis of tariff based International Competitive Bidding. This allocation is being done subject to the conditions given hereunder: -

i) The coal produced from the above mines would be exclusively used in the Sasan UMPP.

              ii) to xi) xxx      xxx        xxx

              (xii)     No coal shall be sold, delivered, transferred or

disposed of except with the previous approval of the Central Government."

(iii) Letter dated 20th November, 2006 sent by the Ministry of Coal

to the Power Finance Corporation (special purpose vehicle created for

the Sasan UMPP). This letter was forwarded by e-mail to all the pre-

qualified bidders including Tata Power and Reliance Power. The

relevant extract of this letter reads as follows:

"Sir, I am directed to refer to Sasan Powers Limited‟s letter No. 03:07:UMPP:SASAN:17 dated 17.11.2006 and this Ministry‟s letter of even number dated the 13.09.2006 and 26.10.2006 regarding allocation of Moher, Moher-Amlori Extension and Chhatrasal coal blocks for Sasan Ultra Mega Power Project and to say that in the allocation letter for Chhatrasal coal block in item (ix) of the terms and conditions, rule for royalty @ Rs.213 per tonne was inadvertently mentioned for the purpose of bank guarantee.

2. xxx xxx xxx

3. It is also clarified that condition of bank guarantee as well as all other conditions mentioned in the allocation letter of Chhattrasal block will also apply to all the other blocks allocated for Sasan UMPP."

15. Significantly, and this is what is agitated by the learned

Additional Solicitor General and learned counsel appearing for Reliance

Power, there is no mention in the writ petition of the fact that all the

bidders were informed and were aware that the terms and conditions of

the allocation letter of the Chhatrasal coal block would be applicable to

the other coal blocks allocated for the Sasan UMPP. A particular (and

obvious) reference was made to condition No. (xii) in the allocation

letter dated 20th October, 2006 read with paragraph 3 of the letter dated

20th November, 2006. It was also submitted that receipt of the letter

dated 20th November, 2006 through e-mail was not denied by Tata

Power.

16. However, in a rather long winded explanation given in the

rejoinder affidavit, Tata Power explains that it was proceeding on the

basis (in the writ petition) that condition (i) in the allocation letters for

the Moher and Moher-Amlori Extension coal blocks and the Chhatrasal

coal block, unequivocally states that the coal from these blocks was for

captive use exclusively for the Sasan UMPP, thereby implying that any

benefit arising out of coal obtained from these coal blocks could be

utilized only in the Sasan UMPP. Significantly, Tata Power does not

deny the fact that in terms of the letter dated 20th November, 2006 the

Central Government could permit diversion of incremental coal for use

other than for captive use of the Sasan UMPP. Undeniably, this fact has

not been mentioned in the writ petition or any of the annexures thereto.

17. The failure of Tata Power to mention the above fact in the writ

petition acquires greater significance in view of what is stated in its

rejoinder affidavit to the effect that it was known to all concerned that

the estimated reserves of the three allocated captive coal blocks could be

in excess of the requirement of the Sasan UMPP for the period of the

agreement. This averment in the rejoinder affidavit, read in conjunction

with the right reserved by the Central Government for diverting the

incremental coal, clearly suggests that Tata Power ought to have been

alive to the fact that if necessary, the Central Government could exercise

the power that it had reserved to itself for diverting the incremental coal.

18. In our opinion, this fact is an extremely important and relevant

fact that ought to have been disclosed by Tata Power because it explains

the jurisdictional or foundational basis on which the Empowered Group

of Ministers took its decision on 14 th August, 2008. Were this fact not

in existence, it could have been argued that the decision taken by the

Empowered Group of Ministers was without any basis or was an off the

cuff decision. However, with the reservation being there, such an

allegation cannot be made in respect of the decision taken by the

Empowered Group of Ministers on 14th August, 2008. It is for this

reason that we are of the view that it was imperative for Tata Power to

have disclosed the fact that through the letter dated 20th November, 2006

the Central Government had reserved unto itself the right to divert

incremental coal mined from the Moher and Moher-Amlori Extension

coal blocks and the Chhatrasal coal block away from the Sasan UMPP.

19. It is another matter altogether that Tata Power may have

proceeded on the basis that the Central Government was bound by its

representation that the incremental coal could not be used for any

project other than the Sasan UMPP. This would have been a possible

understanding were the letter dated 20th November, 2006 not in

existence; but since that letter is very much in existence and was very

much in the knowledge of Tata Power, it could not have proceeded on

the basis that it did, as stated in its rejoinder affidavit, except at its own

peril. In view of this, we have no option but to hold that Tata Power has

not come to the Court with a full and complete disclosure of relevant

and material facts.

20. Our attention has been drawn to S.J.S. Business Enterprises

(P) Ltd. v. State of Bihar & Others, (2004) 7 SCC 166 wherein the

effect of suppression of a material fact has been stated in paragraph 13

of the Report:

"As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court whatever view the court may have taken."

21. Similarly, in Poorvanchal Caterers & Anr. v. Indian Railway

Catering & Tourism Corporation Ltd., 127 (2006) DLT 41 (DB), a

Division Bench of this Court observed in paragraph 23 of the Report

that it is well settled that since the writ jurisdiction is a discretionary

jurisdiction, a writ petition is liable to be dismissed if the petitioner does

not come to the Court with clean hands.

22. The effect of suppression of a relevant fact was also

considered by another Division Bench of this Court in M/s Hillcrest

Realty Sdn. Bhd. v. M/s Hotel Queen Road Pvt. Ltd.,

MANU/D0023/2009 wherein it was observed in paragraph 34 of the

decision that a litigant approaching a Court must disclose all relevant

facts and documents, for the failure to do so amounts to playing a fraud

on the Court and the opposing party. It is of no consequence which way

the facts or the documents may impact - they are required to be

disclosed if they are likely to affect the decision of the Court one way or

the other.

23. Finally, in The King v. The General Commissioners for the

purposes of the Income Tax Acts for the District of Kensington, 1917

[1] KB 486, it was observed on page 505 of the Report (after referring to

Dalglish v. Jarvie, 2 Mac. & G. 231, 238) that:

"That is merely one and perhaps rather a weighty authority in favour of the general proposition which I think has been established, that on an ex parte application uberrima fides is required, and unless that can be established, if there is anything like deception practiced on the Court, the Court ought not to go into the merits of the case, but simply say "We will not listen to your application because of what you have done."

A little later on page 506 of the Report, it is stated that:

"If you make a statement which is false or conceal something which is relevant from the Court, the Court will discharge the order and say "You can come again if you like, but we will discharge this order, and we will apply the general rule of the Court to applications like this." There are many cases in which the same principle would apply. Then it is said "That is so unfair; you are depriving us of our right to a prohibition on

the ground of concealment or misstatement in the affidavit." The answer is that the prerogative writ is not a matter of course. The applicant must come in the manner prescribed and must be perfectly frank and open with the Court."

It is true that this case pertains to the grant of an injunction and

a writ of prohibition but we are of the view that the principles equally

apply to the writ jurisdiction inherent in the superior Courts in India, the

principle being applicable not only through judgments of our Supreme

Court but also by at least two Division Benches of this Court.

24. As we have held above, in our opinion, the contents of the

letter dated 20th November, 2006 were material one way or the other

and, therefore, suppression of that letter falls foul of the law laid down

by the Supreme Court and other courts. The existence of the fact that

incremental coal could be diverted clearly has a significant impact on

the merits of the case and since this relevant fact has been concealed or

at least not brought out, we can certainly decline to entertain this writ

petition on the ground that there has been a suppression of a material

fact.

25. Under the circumstances, we decline to entertain this writ

petition on the ground of suppression of a material and relevant fact.

26. The next submission that we are required to deal with is the

locus standii of Tata Power to maintain this writ petition. This

submission arises from the fact that Tata Power did not extend its bid

validity when asked to do so. Effectively, therefore, it was not even a

participant in the bidding process.

27. Learned counsel for Tata Power relied upon Ramana

Dayaram Shetty v. International Airport Authority of India & Others,

(1979) 3 SCC 489 to contend that a person who is not a bidder can

nevertheless challenge the award of a contract in favour of another

party. A reading of paragraph 34 of the Report, which is relied upon by

learned counsel, shows that both the appellant in that case as well as

respondent No.4 did not meet the eligibility criterion. However,

respondent No.1 therein accepted the tender of respondent No.4. It was

in that context that the Supreme Court held that the appellant could

challenge the acceptance of the tender submitted by respondent No.4

since the action of respondent No.1 therein was clearly discriminatory

and arbitrary because it excluded other persons similarly situate from

tendering for the contract.

28. Similarly, in Raunaq International Ltd. v. I.V.R.

Construction Ltd. & Others, (1999) 1 SCC 492, both Raunaq

International as well as I.V.R. Construction were ineligible to bid but

their bids were considered for awarding the contract. I.V.R.

Construction challenged the award of the contract to Raunaq

International on the ground that it did not fulfill the eligibility criterion

but, as the Supreme Court noted, even I.V.R. Construction did not fulfill

the eligibility requirements and nevertheless its bid was entertained.

Therefore, I.V.R. construction could have no real grievance.

29. In our opinion, none of these decisions are apposite. In

Ramana Dayaram Shetty, the bid of one ineligible person was

entertained while that of another ineligible person was not entertained.

The Supreme Court held this to be discriminatory and arbitrary. In

Raunaq International, the bid of both ineligible persons was

entertained. In the writ petition that we are concerned with, there is no

question about either Tata Power being ineligible or Reliance Power

being ineligible. Admittedly, both are eligible and their bids were

entertained and neither one of them has made a grievance in this regard.

That apart, the two decisions referred to above show that as long as the

playing field remains level for all the bidders or putative bidders, no one

can make an allegation of discrimination or arbitrariness.

30. In so far as we are concerned, the situation for Tata Power is

not at all a happy one because during the tendering process it opted out

of the race by not extending the validity of its bid. We are not

concerned with the reasons why Tata Power opted out of the race - the

reason may be good, bad or indifferent - but the fact remains that Tata

Power did not run the full course. By not having done so, it signaled its

intention not to complete the race and, therefore, it is hardly of any

relevance, at least in so far as Tata Power is concerned, who wins the

race. It is for this reason that learned counsel for Tata Power stated that

he was not challenging the award of the contract to Reliance Power but

his client was nevertheless aggrieved by the change brought about by

virtue of the decision taken by the Empowered Group of Ministers on

14th August, 2008. However, as we have noted above, this decision was

taken after the Letter of Intent was awarded to Reliance Power on 30 th

July, 2007 and the Power Purchase Agreement was entered into between

the Central Government and Reliance Power on 7 th August, 2007 after

the race was over. Consequently, the rules of the race did not change

while the race was on.

31. It might have been a different matter if the Empowered Group

of Ministers had taken its decision before the award of the Letter of

Intent or before the Power Purchase Agreement was entered into.

However, since that has not happened, we need not dwell on that aspect

of the matter. The fact is that the Empowered Group of Ministers took a

decision well after Tata Power opted out of the race and well after the

Letter of Intent was awarded to Reliance Power and the Power Purchase

Agreement was entered into between the Central Government and

Reliance Power. Whether the Empowered Group of Ministers thereafter

took the decision or not would have no bearing after the race was over

or in any case it was irrespective of who the participants were. On the

facts before us, we have no doubt that Tata Power cannot be described

as a person aggrieved and, therefore, does not have any locus standii to

maintain the writ petition.

32. The final submission relating to delay and laches was made

before us by learned counsel for Reliance Power. The submission was

that the writ petition should not be entertained because the Empowered

Group of Ministers took a decision on 14 th August, 2008 while the writ

petition was filed in early January, 2009 after an unexplained delay of

about five months. By and large, it is not as if delay in every case can

be described as unreasonable or fatal to the interests of a petitioner. The

facts of each case have to be taken into consideration. [See for example

Indian Iron & Steel Co. Ltd. v. Prahlad Singh, (2001) 1 SCC 424].

Therefore, we need to ascertain the events that transpired after 14 th

August, 2008 and whether they are sufficient to non-suit Tata Power on

the grounds of delay.

33. In this regard, we have been taken through the affidavit filed

by Reliance Power in which it is stated, inter alia, that a supplemental

Power Purchase Agreement was signed by Reliance Power with several

parties on 15th October, 2008 as a result of which the commissioning of

the Sasan UMPP has been substantially advanced by three years (from

2016 to 2013). Additionally, a large number of clearances and

approvals have been obtained from various authorities such as an „in

principle‟ forest clearance has been obtained on 3 rd December, 2008

from the Ministry of Environment & Forests of the Government of

India; a defence clearance has been obtained on 16 th December, 2008

from the Ministry of Defence of the Government of India; an

environmental clearance has been obtained on 10 th December, 2008 for

the Moher and Moher-Amlori Extension coal blocks from the Ministry

of Environment & Forests of the Government of India. It is stated that

Sasan Power Limited, the project company has already spent Rs.900

crores towards land and project related expenditure upto December,

2008. Reliance Power is said to have received sanction of loans of over

Rs.11,500 crores by banks and financial institutions from October, 2008

onwards. None of these facts have been substantially denied by Tata

Power - the denials being rather perfunctory.

34. In this background and context, the issue of delay and laches

assumes tremendous significance. Reliance Power has obviously made

substantial progress in the implementation of the Sasan UMPP and to

interdict it now would certainly not be in anybody‟s interest. In fact,

altering one‟s position by incurring substantial expenditure was one of

the factors (coupled with delay) that prompted the Supreme Court to

hold against the writ petitioner in State of Madhya Pradesh v. Nandlal

Jaiswal, (1986) 4 SCC 566 and in Ramana Dayaram Shetty. In our

opinion, the law laid down by these two decisions is fully applicable to

the facts of the present case. Even if the decision of the Empowered

Group of Ministers is unconstitutional, the decisions of the Supreme

Court prohibit us from interfering, particularly since we are of the

opinion that the demand of justice is not so compelling as to necessitate

our interdiction.

35. In Raunaq International, the Supreme Court has observed in

paragraph 11 of the Report that when a writ petition is filed in the High

Court challenging the award of a contract by a public authority or the

State, the Court must be satisfied that there is some element of public

interest involved in entertaining such a petition. By way of an example,

the Supreme Court noted that if the dispute is purely between two

tenderers, the Court should be very careful to see if there is any element

of public interest involved in the litigation. Keeping the dictum laid

down by the Supreme Court in mind, it does appear to us that there is no

public interest subserved in quashing the decision taken by the

Empowered Group of Ministers on 14th August, 2008. The dispute really

appears to be a commercial one between two tenderers, that is, Tata

Power and Reliance Power and that being so, it will not be proper for us

to entertain the writ petition which is devoid of any public interest

element.

36. Moreover, we have no reason to come to the conclusion that

the Empowered Group of Ministers did not act in public interest. There

is nothing on record to suggest that. On the contrary, it appears that the

Empowered Group of Ministers acted on a representation having been

made by the Government of Madhya Pradesh and there is nothing to

suggest that the Government of Madhya Pradesh did not have the public

interest in mind. On these facts, we decline to exercise our discretion in

favour of Tata Power for entertaining this writ petition, partly in view of

the delay and laches and partly in view of the fact that this writ petition

does not attract any public interest element.

37. Consequently, we are in agreement with the learned Additional

Solicitor General as well as learned counsel for Reliance Power that the

writ petition filed by Tata Power ought not to be entertained because of

suppression of a material fact, an absence of locus standii of Tata Power

to maintain the writ petition and on account of the time taken for

approaching this Court for relief during which period a large number of

important developments have taken place which lead us to conclude that

the writ petition should not be entertained on account of delay and

laches on the part of Tata Power in approaching this Court. There is

also no warrant for otherwise exercising our discretion in favour of Tata

Power.

38. The writ petition is dismissed. Since no notice had been

issued to any of the parties and all of them had appeared on an advance

copy of the writ petition having been served on them, we are not

inclined to award any costs.

                                           MADAN B. LOKUR, J



April 13, 2009                             SIDDHARTH MRIDUL, J
ncg

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