Karnataka High Court
Vish Wind Infrastrukture Llp vs The State Of Karnataka on 6 March, 2024
Author: R. Devdas
Bench: R. Devdas
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR.JUSTICE R. DEVDAS
WRIT PETITON NO.6546 OF 2023 (GM-KEB)
C/W
WRIT PETITON NO.6550 OF 2023 (GM-KEB),
WRIT PETITON NO.11271 OF 2023 (GM-RES),
WRIT PETITON NO.11272 OF 2023 (GM-RES)
IN W.P. NO.6546/2023:
1. VISH WIND INFRASTRUKTURE LLP,
A LIMITED LIABILITY PARTNERSHIP,
HAVING ITS REGISTERED OFFICE AT:
FORTUNE TERRACE, 11TH FLOOR,
A WING, PLOT C.T.S. NO.657 AND 658,
NEW LINK ROAD, ANDHERI (WEST),
MUMBAI-400 053,
REPRESENTED BY ITS AUTHORIZED SIGNATORY
MR H S HARISHA, MANAGER - ACCOUNTS
2. M/S VAAYU RENEWABLE ENERGY (MEVASA)
PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
PLOT NO.33, DAMAN PATALIA ROAD,
BHIMPORE, DAMAN-396 210,
REPRESENTED BY ITS
-2-
AUTHORIZED REPRESENTATIVE
MR. H.S. HARISHA, MANAGER-ACCOUNTS
...PETITIONERS
(BY SRI. S.S. NAGANAND, SENIOR COUNSEL FOR
SRI. A.M.SHODHAN BABU, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
ENERGY DEPARTMENT,
ROOM NO.236, 2ND FLOOR,
VIKAS SOUDHA,
DR.AMBEDKAR ROAD,
BENGALURU-560 001.
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY.
2. KARNATAKA RENEWABLE ENERGY
DEVELOPMENT LIMITED (KREDL),
NO.39, SHANTHIGRUHA,
BHARAT SCOUTS AND GUIDES BUILDING,
PALACE ROAD, BENGALURU -560 001
REPRESENTED BY ITS MANAGING DIRECTOR.
3. FP SUN SPARK PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
PLOT NO.N46, HOUSE NO.4-6-10,
HMT NAGAR, HYDERABAD-500076
REPRESENTED BY ITS
AUTHORIZED REPRESENTATIVE
MANAGING DIRECTOR
4. FPEL TRIZONE SOLAR PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
-3-
PLOT NO. N46, HOUSE NO.4-9-10,
HMT NAGAR, HYDERABAD-500076,
REPRESENTED BY ITS
AUTHORIZED REPRESENTATIVE
MANAGING DIRECTOR
...RESPONDENTS
(BY SRI. REUBEN JACOB, AAG FOR
SRI. MOHAMMED JAFFAR SHAH, AGA FOR R1;
SRI. PRASHANT KUMAR AND SRI. HARISH KUMAR
M.D., ADVOCATES FOR R2;
SRI. GURUDAS S KANNUR, SENIOR COUNSEL FOR
SRI. SHIVASHANKAR C., ADVOCATE FOR R3 AND R4)
THIS WP IS FILED UNDER ARICLES 226 AND 227 OF
THE CONSTITUION OF INDIA PRAYING TO QUASH THE
IMPUGNED GOVERNMENT ORDER BEARING ENERGY 74
NCE 2022, BENGALURU, DATED 25.11.2022 VIDE
ANNEXURE-G ISSUED BY RESPONDENT NO.1 AND ETC.
IN W.P. NO.6550/2023:
BETWEEN:
1. VISH WIND INFRASTRUKTURE LLP,
A LIMITED LIABILITY PARTNERSHIP,
HAVING ITS REGISTERED OFFICE AT
FORTUNE TERRACE, 11TH FLOOR,
A WING, PLOT C.T.S., NO.657 AND 658,
NEW LINK ROAD, ANDHERI (WEST),
MUMBAI-400 053.
REPRESENTED BY ITS AUTHORIZED SIGNATORY.
MR. H.S. HARISHA, MANAGING-ACCOUNTS
2. M/S. VAAYU RENEWABLE ENERGY (KRISHNA)
PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
-4-
HARE KRISHNA, PRESIDENCY SOCIETY,
NORTH SOUTH ROAD,
NO.8, VILE PARLE (WEST),
MUMBAI-400 049,
REPRESENTED BY ITS
AUTHORIZED REPRESENTATIVE.
MR. H.S. HARISHA, MANAGING - ACCOUNTS
...PETITIONERS
(BY SRI. S.S. NAGANAND, SENIOR COUNSEL FOR
SRI. A.M.SHODHAN BABU, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
ENERGY DEPARTMENT,
ROOM NO.236, 2ND FLOOR,
VIKASA SOUDHA,
DR. AMBEDKAR ROAD,
BENGALURU-560 001,
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY.
2. KARNATAKA RENEWABLE ENERGY DEVELOPMENT
LIMITED (KREDL),
NO. 39, SHANTHIGRUHA,
BHARAT SCOUTS AND GUIDES BUILDING,
PALACE ROAD,
BENGALURU-560 001,
REPRESENTED BY ITS MANAGING DIRECTOR.
3. FP SUN SPARK PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
PLOT NO. N46, HOUSE NO. 4-6-10,
HMT NAGAR, HYDERABAD-500 076,
REPRESENTED BY ITS
-5-
AUTHORIZED REPRESENTATIVE
MANAGING DIRECTOR
4. FPEL TRIZONE SOLAR PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
PLOT NO. N46, HOUSE NO. 4-9-10,
HMT NAGAR, HYDERABAD-500 076,
REPRESENTED BY ITS
AUTHORIZED REPRESENTATIVE
MANAGING DIRECTOR
5. PROJECT SIXTEEN RENEWABLE POWER
PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
S 2904, 29TH FLOOR, WORLD TRADE CENTER,
BRIGADE GATEWAY CAMPUS, NO.26/1,
DR. RAJKUMAR ROAD, MALLESWARAM,
RAJAJINAGAR, BENGALURU-560 055,
REPRESENTED BY ITS
AUTHORIZED REPRESENTATIVE.
MANAGING DIRECTOR
R5 DELETED VIDE COURT ORDER
DATED 11.08.2023
...RESPONDENTS
(BY SRI. REUBEN JACOB, AAG FOR
SRI. MOHAMMED JAFFAR SHAH, AGA FOR R1;
SRI. PRASHANT KUMAR AND SRI. HARISH KUMAR
M.D., ADVOCATES FOR R2;
SRI. GURUDAS S KANNUR, SENIOR COUNSEL FOR
SRI. SHIVASHANKAR C., ADVOCATE FOR R3 AND R4)
-6-
THIS WP IS FILED UNDER ARICLES 226 AND 227 OF
THE CONSTITUION OF INDIA PRAYING TO QUASH THE
IMPUGNED GOVERNMENT ORDER BEARING ENERGY 74
NCE 2022, BENGALURU, DATED 25.11.2022 VIDE
ANNEXURE-G ISSUED BY RESPONDENT NO.1 AND ETC.
IN W.P. NO. 11271 /2023:
BETWEEN:
FP SUN SPARK PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
PLOT NO.N46, HOUSE NO.4-6-10,
HMT NAGAR, HYDERABAD-500076
REPRESENTED BY ITS AUTHORIZED SIGNATORY
MR. MANOJ KUMAR
OCCUPATION: SERVICE
...PETITIONER
(BY SRI. GURUDAS S KANNUR, SENIOR COUNSEL FOR
SRI. SHIVASHANKAR C., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
ENERGY DEPARTMENT
ROOM NO.236, 2ND FLOOR
VIKAS SOUDHA, DR. AMBEDKAR ROAD,
BENGALURU-560001.
REPRESENTED BY ADDITIONAL CHIEF SECRETARY
2. KARNATAKA RENEWBLE ENERGY
DEVELOPMENT LIMITED,
NO.6/13/1, 10TH BLOCK, 2ND STAGE,
NAGARABHAVI, BANGALROE-560072,
REPRESENTED BY ITS MANAGING DIRECTOR
-7-
3. VISHU WIND INFRANSTRATUR LLP
A LIMITED LIABILITY PARTNERSHIP
HAVING ITS REGISTERED OFFICE AT
FORTUNE TERRACE, 11TH FLOOR,
A WING, PLOT CTS NO.657 AND 658,
NEW LINK ROAD, ANDHERI (WEST),
MUMBAI-400053, MAHARASHTRA
REPRESENTED BY ITS AUTHORIZED SIGNATORY
H.S.HARISHA, MANAGER ACCOUNTS
4. M/S VAAYU RENEWABLE ENERGY
(MEVASA) PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
PLOT NO.33, DAMAN PATALIA ROAD,
BHIMPORE, DAMAN 396210
REPRESENTED BY ITS AUTHORIZED SIGNATORY
H.S.HARISHA
MANAGER ACCOUNTS
5. M/S VAAYU RENEWABLE ENERGY
(KRISHNA) PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
HARE KRISHNA PRESIDENCY SOCIETY
NORTH SOUTH ROAD, NO.8
VILE PARLE (WEST), MUMBAI-400049
REPRESENTED BY ITS AUTHORIZED
REPRESENTATIVE
...RESPONDENTS
(BY SRI. REUBEN JACOB, AAG FOR
SRI. MOHAMMED JAFFAR SHAH, AGA FOR R1;
SRI. PRASHANT KUMAR AND SRI. HARISH KUMAR
M.D., ADVOCATES FOR R2;
SRI. S.S. NAGANAND, SENIOR COUNSEL FOR
SRI. A.M. SHODHAN BABU, ADVOCATE FOR R3 TO R5)
-8-
THIS WP IS FILED UNDER ARICLES 226 AND 227 OF
THE CONSTITUION OF INDIA PRAYING TO QUASHING THE
CONDITION NO 7 IMPOSED BY THE 1ST RESPONDENT
VIDE THE GOVERNMENT ORDER GO NO ENERGY 133 NCE
2023 BANGALORE DATED 24/03/2023 FOR THE
DEVELOPMENT OF 151.8MW WIND PROJECT IMPOSING
VARIOUS CONDITIONS VIDE ANNEXURE-S AND GRANT
COSTS OF THESE PROCEEDINGS AND ETC.
IN W.P. NO. 11272 /2023:
BETWEEN:
M/S FPEL TRIZONE SOLAR PVT LTD
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE
COMPANIES ACT 2013 AND HAVING
ITS REGISTERED OFFICE AT
PLOT NO N46 HOUSE NO 4-910
HMT NAGAR, HYDERABAD - 500076
REPRESENTED BY ITS
AUTHORIZED SIGNATORY
MR MANOJ KUMAR
...PETITIONER
(BY SRI. GURUDAS S KANNUR, SENIOR COUNSEL FOR
SRI. SHIVASHANKAR C., ADVOCATE)
AND
1. THE STATE OF KARNATAKA
ENERGY DEPARTMENT
ROOM NO 236, 2ND FLOOR,
VIKAS SOUDHA
DR AMBEDKAR ROAD,
BANGALORE - 560001
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY
-9-
2. KARNATAKA RENEWABLE ENERGY
DEVELOPMENT LIMITED
NO 6/13/1 10TH BLOCK
2ND STAGE, NAGARABHAVI
BANGALORE - 560072
REPRESENTED BY ITS
MANAGING DIRECTOR
3. VISHNU WIND INFRASTRUCTUR LLP
A LIMITED LIABILITY PARTNERSHIP
HAVING ITS REGISTERED OFFICE
AT FORTUNE TERRACE, 11TH FLOOR,
A WING PLOT CTS NO
657 AND 658, NEW LINK ROAD,
ANDHERI (WEST)
MUMBAI - 400053 MAHARASHTRA
REPRESENTED BY ITS
AUTHORIZED SIGNATORY
H.S. HARISHA, MANAGER ACCOUNTS
4. M/S VAAYU RENEWABLE ENERGY
(MEVASA) PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE
AT PLOT NO.33, DAMAN PATALIA ROAD
BHIMPORE, DAMAN 396210
REPRESENTED BY ITS
AUTHORIZED SIGNATORY
H.S. HARISHA, MANAGER ACCOUNTS
5. M/S VAAYU RENEWABLE ENERGY
(KRISHNA) PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
HARE KRISHNA PRESIDENCY SOCIETY
-10-
NORTH SOUTH ROAD, NO.8
VILE PARLE (WEST), MUMBAI-400049
REPRESENTED BY ITS AUTHORIZED
REPRESENTATIVE
...RESPONDENTS
(BY SRI. REUBEN JACOB, AAG FOR
SRI. MOHAMMED JAFFAR SHAH, AGA FOR R1;
SRI. PRASHANT KUMAR AND SRI. HARISH KUMAR
M.D., ADVOCATES FOR R2;
SRI. S.S. NAGANAND, SENIOR COUNSEL FOR
SRI. A.M. SHODHAN BABU, ADVOCATE FOR R3 TO R5)
THIS WP IS FILED UNDER ARICLES 226 AND 227 OF
THE CONSTITUION OF INDIA PRAYING TO
QUASH THE CONDITION NO. 7 IMPOSED BY THE R1 VIDE
GOVERNMENT ORDER GO NO. ENERGY 132 NCE 2023,
BANGALORE DT. 24.03.2023 FOR THE DEVELOPMENT OF
148.5MW WIND PROJECT IMPOSING VARIOUS
CONDITIONS VIDE ANNX-S COST OF THESE
PROCEEDINGS AND ETC.
THESE WRIT PETITIONS ARE HAVING BEEN HEARD
AND RESERVED ON 23.01.2024 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT
MADE THE FOLLOWING:
-11-
COMMON ORDER
In writ petitions No.6546/2023 and 6550/2023
the petitioner-companies are aggrieved of a portion of
Government Order bearing No. ENERGY 74 NCE 2022,
Bengaluru, dated, 25.11.2022 and they are seeking to
quash communications at Annexure-N, whereby they
are forced to comply with the offending portion of the
Government Order dated 25.11.2022 and to submit a
revised proposal and revised WTG co-ordinates. The
said petitioners are also seeking directions to the
respondent-Karnataka Renewable Energy
Development Limited (KREDL) to allow the
applications of the 1st petitioner to transfer a portion
of the allotment in favor of the 2nd petitioner. The
petitioners in the other two writ petitions in
W.P.No.11271/2023 and 11272/2023 (M/s. FP Sun
Spark/ FPEL Trizoners) who have been granted
Government Orders at the hands of the KREDL are
aggrieved of condition No.7 imposed in the
Government Orders. The said condition seeks to
carve out such areas for the benefit of the petitioners
in W.P.No.6546/2023 and 6550/2023. The grievances
being interlinked, the writ petitions were clubbed,
heard together and are being disposed of by this
common order.
2. For the sake of convenience M/s. Vish Wind
will be referred to as petitioner No.1, M/s. VAAYU
RENEWABLE ENERGY (MEVASA) PRIVATE LIMITED, will be
referred to as petitioner No.2 and M/s. FP Sun Spark/
FPEL Trizoners will be referred to as the
private/contesting respondents.
3. The undisputed facts are that having regard
to the aspirations of the State of Karnataka to develop
renewable energy, the 2nd respondent-KREDL was
chosen as a nodal agency for implementation and
encouragement of renewal energy projects in the
State of Karnataka and in terms of the Karnataka
Renewable Energy Policy, 2009-2014, KREDL notified
advertisements calling upon private entrepreneurs to
invest and set up renewal energy projects in the State
of Karnataka. In terms of the policy, KREDL would
receive the applications, examine the proposals and
submit the same to the State Government along with
its recommendations. The applicants had to file
applications for capacity allotment for the proposed
renewal energy project along with stipulated
documents and fees. KREDL would forward the
applications along with its recommendations to the
Allotment Committee. The Allotment Committee would
consider the proposal along with the recommendations
of the KRDEL and forward the same with its own
recommendations to the government. The
government would take the final decision on issuance
of the Government Order for capacity allotment. The
Government Order would permit the project with
specific capacity and earmark locations where the
projects may be set up. On issuance of the
Government Order the allottee was required to
execute an agreement with KREDL for allotment of
capacity. Provision was made for the allottee to seek
enhancement of capacity of the project or the area.
Provision was also made for transfer of rights in the
capacity allotment to a third party, by making an
application to KREDL. The timeline for completion of
the project, is as stipulated in Clause-9(v) of the RE
2009-14 Policy.
4. The 1st Petitioner-Vish Wind Infrastrukture LLP
(hereinafter referred to as 'Vish Wind', for short) filed
an application on 20.02.2019 and Government Order
bearing No.EN 137 NCE 2019, dated 11.05.2020 was
issued in favour of the 1st petitioner. The geographical
area allotted to the 1st petitioner was demarked into
two parts. Part 'A' consisted of geographical area in
Dharwad District and Part 'B' in Gadag District. Since
the Government Order did not specify the Wind power
capacity for each of the two areas, by way of an
amendment, Government Order dated 19.02.2021
was issued. As per the amendment, Part 'A' was
allotted 6.4 MW capacity and Part 'B' was allotted 1.6
MW capacity.
5. The Government of Karnataka notified new
RE Policy, 2022-2027 on 30.04.2022. Under the new
Policy the applicant is reqired to furnish an application
containing the project details including the co-
ordinates of each WTG (Wind Turbine Generators)
along with the survey number of the land required for
the implementation of the project. As per the new
Policy the developer is required to conduct the
technical feasibility study and Wind source assessment
in advance and submit a detailed project report
including the WTG co-ordinates, along with the
application. The marked difference between the old
and new policy is, unlike the old policy where large
tract of lands could be sought for and allotted, in the
new policy specifics of the maximum land area/space
to be utilized by the developer for Wind project is
stipulated. For upto 2.5 MW WTG - 5 acres is
allowed per WTG; from 2.51 MW to 4 MW- 10 acres
are allowed per WTG; above 4 MW WTG land
requirement shall be reviewed from time to time
based on the models approved by MNRE in the RLMM.
The project developer is required to tender micro
siting as per MNRE guidelines for development of
onshore Wind power projects.
6. Consequent to the notification of the new RE
Policy, the 1st petitioner was directed to resubmit the
proposal demarcating the land area for 8 MW (6.4 +
1.6 MW) which was granted earlier to the 1st petitioner
and that the proposal should be in conformity with the
new policy which stipulated 4 acres per WTG. The 1st
petitioner was also informed that if the WTG co-
ordinates are not received from the 1st petitioner
within 10 days from the date of notice dated
25.01.2023 at Annexure-H, the land requirement for 8
MW capacity shall be considered as 4 acres per WTG.
The 1st petitioner gave a reply dated 02.02.2023
stating that there was some delay in completing study
activities due to COVID and lockdown but, it will utilize
the entire geographical area mentioned in the
Government Order dated 11.05.2020 by filing
necessary application within 12 to 16 weeks from the
date of the said reply. Thereafter, the 1st petitioner
filed an application seeking to transfer 2.10 MW out of
6.4 MW in favor of the 2nd petitioner and
simultaneously 2nd petitioner filed an application for
transfer of 2.10 MW out of 6.4 MW from the 1st
petitioner and sought enhancement of 2.1 MW
capacity to 96.60 MW. It is contended that the 2nd
petitioner paid the prescribed fee of Rs.1,09,65,150/-
along with the application. The respondent-KREDL did
not accept the proposal of the petitioners for transfer
and enhancement on the ground that some of the
proposed WTG co-ordinates of the 2nd petitioner were
over lapping with other project proposals. The 2nd
petitioner was directed to submit revised proposal
with revised WTG co-ordinates. The petitioners
understood that the other project proposals which
were referred in the communication dated 08.03.2023
were respondents No.3 and 4 (writ petitioners in
W.P.No.11271/2023 and 11272/2023). The writ
petitioners in W.P.Nos.6456/2023 and 6550/2023 are
aggrieved of the non-acceptance of their application
for transfer and enhancement of the capacity.
7. On the other hand, the contesting
respondents who are also the writ petitioners in
W.P.No.11271/2023 and 11272/2023 viz., M/s. FP
Sun Spark/ FPEL Trizoners, are aggrieved of the
inclusion of condition No.7 in their respective
Government Orders. It is the contention of the
respondents that since the application for transfer and
enhancement of the capacity filed by the petitioners
was rejected by KREDL, such condition as found in
Clause -7 could not have been imposed in the
Government Order granted to the respondents.
8. Learned Senior Counsel Sri.S.S.Naganand
appearing on behalf of Vish Wind submits that having
regard to the timelines found in Clause -9(v) of RE
2009-14 Policy, which is applicable to the 1st
petitioner, the wind power project had to be
completed within 6½ years including all extensions.
The timeline for completion of renewal energy project
stood amended by corrigendum dated 18.07.2011,
much before the Government Order was issued in
favor of the 1st petitioner. The Government Order
having been issued to the 1st petitioner on
11.05.2020, the Clauses contained in the old RE Policy
2009-14 alone can be made applicable and therefore,
the 1st petitioner had every right to seek transfer and
enhancement of capacity till 11.11.2026. In that view
of the matter, the learned Senior Counsel submits that
KREDL could not have rejected the application for
transfer in favour of the 2nd petitioner and it could not
have rejected the application for enhancement of
capacity.
9. In this regard, the learned Senior Counsel
Sri.S.S.Naganand sought to place reliance on the
following judgments in support of his contentions that
the doctrine of promissory estoppel applied to the
State. All administrative orders should ordinarily be
considered prospective in nature. When a policy
decision is required to be given a retrospective
operation, it must be stated so expressly or by
necessary implication;
(1) Kusumam Hotels Pvt. Ltd., Vs. Kerala
State Electricity Board and Ors. (2008)
13 SCC 213
(2) Bharat Sanchar Nigam Ltd., and others
Vs. TATA Communications Ltd. e tc. and
Others 2022 SCC Online SC 1280
(3) Motilal Padampat Sugar Mills Co. Ltd.,
Vs. State of Uttar Pradesh and others
(1979) 2 SCC 409
10. The learned Senior Counsel for the
petitioners also brought to the notice of this Court that
when these matters came for preliminary hearing, an
interim order was passed on 23.03.2023 staying the
operation of the Government Order dated 25.11.2022
and communication dated 25.01.2023 at Annexure-H
till the next date of hearing. It is submitted that
although the interim orders passed by this Court was
brought to the notice of the respondent-State and
KREDL, a Government Order dated 24.03.2023 was
issued in favour of the contesting respondents. The
learned Senior Counsel would therefore contend that
the respondent-State, KREDL and M/s. FP Sun Spark/
FPEL Trizoners should not be permitted to justify the
allotment made to the contesting respondents in
terms of a Government Order which was issued in
violation of the court orders. On the same lines, it is
contended that the contesting respondents will have
no locus standi to question the imposition of condition
No.7 in this Government Order, since the said
Government Order itself is liable to be cancelled and
set aside. It was pointed out that in the case of
Prestige Lights Ltd., Vs. State Bank of India (2007)
8 SCC 449, it was held that if orders of the courts are
disobeyed, the court may refuse the party violating
such order to hear the party on merits.
11. Per contra, the State, KREDL and the
contesting respondents seek to vehemently oppose
the contentions of the petitioners. Although it is not
disputed that the contract awarded to the 1st
petitioner on 11.05.2020 was on the basis of RE 2009-
2014 policy, nevertheless, the policy was already on
reconsideration having regard to the deficiencies
found in the policy. In this regard, attention of this
Court was drawn to a decision of a co-ordinate bench
of this Court in the case of SRK Energy Pvt. Ltd.,
/vs./ State of Karnataka and Others in
W.P.No.9174/2022 and connected matters. It
was pointed out that under similar circumstances
where a portion of the earmarked land was divested
and allotted to another entity, and such diversion was
questioned before this Court, this Court held that
there is force in the contention of the contesting
respondents that the petitioners whose claims have
not yet become concrete and choate, cannot seek to
stick on to a particular piece of earth, especially when
KREDL has assured that the petitioners can be
accommodated in any other piece of land comprised in
the vast extent already earmarked in favour of the
petitioners. It is submitted that such a contention
raised at the hands of prior allottee was negated while
holding that the petitioners are not justified in raising
a hue and cry as if the heavens have fallen down;
granting relief as claimed by them virtually amounts
to allowing them to hold other competitors in the field
for a ransom. It was held that the petitioners who are
yet to identify any specific area cannot completely
block out the entire extent of the earmarked land that
admeasures thousands of acres.
12. During the course of the arguments, this
Court had called upon the learned Additional Advocate
General and the learned counsel for KREDL to furnish
certain factual information pertaining to the 1st
petitioner, since M/s.Vish Wind claimed to have
proceeded diligently to identify the most suited patch
of lands to establish the Wind turbines, lay the
gridlines and commence the process of electricity
generation. On factual verification, learned counsel
for KREDL has informed this Court that other than 1st
petitioner, only one another allottee had sought for
extension of time to fulfill the time lines. It was
submitted that the onset of COVID-19 and the
inconvenience suffered by the citizens of this country
on account of the travel restrictions and lockdown
imposed by the Government KREDL did not in any
manner put any undue pressure on the allottees, since
sufficient time was available to the allottees to meet
the timeline and no such request for extension of time
came from the majority of the allottees, except the 1st
petitioner and one another allottee.
13. The counter contention of the respondent
State and KREDL against the 1st petitioner is that the
said allottee is not in a position to establish the
project and generate electricity and on the other hand
it is trying to take advantage of the vast extent of
land allocated and is seeking to transfer its rights and
enrich itself at the cost of the State. It is submitted
that KREDL has given due consideration to the Official
Memoranda issued by the Government of India during
the COVID-19 period and the lockdown ordered by the
State Government in two blocks, the first one for a
period of five months and the second for a period of
two and a half months. However, the 1st petitioner
has done nothing worthwhile in the matter of
generating electricity and serve the purpose for which
the contract was awarded to it. On the other hand,
the 1st petitioner sought for transfer of 1.6 MW on
13.03.2021 and again sought transfer of 2.1 MW on
27.02.2023 in favour of petitioner No.2 herein. No
sooner the transfer was permitted on the first
occasion, the transferee sought for enhancement from
1.6 MW to 100 MW. In the case of the 2nd petitioner
herein, it was pointed out that along with the transfer
application, it has sought enhancement from 2.1 MW
to 96.6 MW and 98.7 MW.
14. Learned Additional Advocate General
submitted that even prior to the co-ordinate bench of
this court passing orders in the case of SRK Energy
(supra), the State Government had contemplated
revision of the RE policy, having regard to several
deficiencies found in the earlier policy, including the
fact that there was no need to earmark vast extents of
lands to the allottees, since the experts had opined
that it was sufficient to allocate 4 acres of land for
erecting each WTG. The learned AAG submitted that
such observations have been made by the Co-ordinate
bench in the case of SRK Energy (supra) doubting the
need for allocation of such vast acres of land,
indiscriminately. However, orders were passed by the
co-ordinate bench on 21.09.2022, while the new RE
policy 2022-2027 was notified on 30.04.2022. As
opined by the experts, in the new RE policy, care was
taken to ensure that along with the application the
project proponent shall give details of each WTG
coordinates along with the survey number of the land
required for implementation of the project. The
learned AAG submitted that the new RE policy was
formulated having regard to the deficiencies found in
the old policy and the new RE policy is made
applicable to all the allottees in whose favour GOs
were issued earlier in terms of the old policy and there
is no intention of the State or KREDL to prejudice a
particular allottee. It is submitted that there has been
no grievance aired at the hands of the any other
allottee with regard to implementation of the new RE
policy.
15. It is the contention of the learned Senior
Counsel for the contesting respondents that the
second petitioner-M/s Vaayu Renewable Energy (Mevasa)
Private Limited has no locus standi to file the writ petition,
since the application filed by the 1st petitioner seeking
transfer of a portion of its rights in favour of the second
petitioner has been rejected at the hands of the
respondent-KREDL. It is submitted that the 1st petitioner
does not have the wherewithal to generate renewable
energy, which fact is evident as it has not been able to do
any visible progress, but it has been treating the contract /
allotment as a real estate business. It is submitted that
the 1st petitioner has transferred a portion of its rights in
the month of March 2021 following which, the transferee
sought for enhancement from 1.6 MW to 100 MW. It is
obvious that the 1st petitioner has no qualms in giving up
portions of land earmarked for it, in favour of its
transferee. On the other hand, it seeks to raise objections
if a portion of the lands are allocated to any other entity.
Learned Senior Counsel submits that the 1st petitioner has
fallen in line accepting the provisions of the new RE policy
2022-2027 in respect of the other portion of the project in
Gadag District. The learned Senior Counsel would therefore
submit that the 1st petitioner should not be permitted to
blow hot and cold in accepting the new RE policy in one
part of the contract and opposing it in the other part.
16. The learned Senior Counsel would further
submit that although transfer was sought by the 1st
petitioner in favor of the 2nd petitioner, but no Government
Order is issued in favour of the 2nd petitioner,
nevertheless, a condition has been imposed in the
Government Order issued in favor of the contesting
respondents depriving it the freedom to procure the
land for the combined 300 MW projects, thus
defeating the very purpose of the Government Order.
It is submitted that the 1st petitioner has not been
able to furnish any material regarding the extent of
lands within the earmarked area procured either by
way of sale or by agreement, which is the basic need
for commencing the project. Most importantly, it is
submitted that even in terms of the amended timeline
as provided in Clause 9(v), the first stage
commencing from zero date (date of allotment), 24
months are provided as stage-I for data collection and
submitting the DPR and seeking enhancement, if any.
It is therefore submitted that the application for
transfer and enhancement coming on 27.02.2023, is
beyond the period of 24 months and therefore, the
application for transfer made by the petitioners is
rightly rejected. The learned Senior Counsel would
therefore submit that having regard to the admitted
position that the period provided in the timeline, even
as per the old RE policy for seeking enhancement
having lapsed after 24 months, the respondent KREDL
could not have imposed a condition as is done at
Clause (7) of its Government Order, depriving the
contesting respondents, the liberty to procure lands in
the earmarked area.
17. Insofar as, the contention of the learned
Senior Counsel appearing for the 1st petitioner that
since the interim orders of this Court were violated
and a Government Order was issued in favour of the
contesting respondents, is concerned, the AAG,
learned Counsel for KREDL and learned Senior
Counsel appearing for the contesting respondents
have submitted that there is no violation of the court
order. It is submitted that M/s. FP Sun Spark/ FPEL
Trizoners filed an application on 10.01.2023 seeking
grant of project and approval of Government Order.
The application was processed and KREDL placed the
application before the State Level Allotment
Committee and approval was granted by the
Committee and its recommendation was placed before
the State Government much before any interim orders
were passed by this Court. It is submitted that in
terms of the recommendation made by the Allotment
Committee, formally the Government Order was
issued on 24.03.2023 and it would be inacceptable to
contend that the Government Order was passed in
violation of the interim orders passed by this Court.
18. Heard the learned Senior Counsel
Sri.S.S.Naganand for the petitioners, learned Addl.
Advocate General Sri.Ruben Jacob for the respondent-
State, learned Counsel Sri.Prashanth Kumar for
KREDL and learned Senior Counsel Sri.Gurudas S
Kannur, for the contesting respondents, and perused
the petition papers.
19. At the outset, what comes to the mind of
this Court, having regard to the flawed policy of the
State, is the emphasis laid by the Hon'ble Supreme
Court in the matter of public policies regarding the
distribution of State largesse in the case of Akhil
Bharatiya Upbhokta Congress Vs. State of M.P.,
(2011) 5 SCC 29, wherein it was held that State and
its instrumentalities cannot give largesse to any
person according to the sweet will and whims of the
political entity and/or officers of the State. Every
action/decision of the State and/or its agencies/
instrumentalities to give largesse or confirm benefit
must be founded on a sound, transparent, discernible,
and well-defined policy, which shall be made known to
the public by publication in the official gazette and
such policy must be implemented by adopting a non-
discriminatory and non-arbitrary method. As brought
to the notice of this Court, earlier too a co-ordinate
Bench of this Court had an occasion to deal with a
similar situation where vast extent of land of 6500
acres were earmarked for a project proponent in
terms of the RE policy 2009-2014 and when a small
extent of land measuring about 66 acres were sought
to be divested, such project proponent sought to
challenge the same before this Court. The co-ordinate
Bench expressed its anguish that even when the
earmarked area were not utilized by the project
proponent, it sought to raise a hue and cry on
divestment of 1% of such lands. It was also observed
that the Court is not sure if the petitioners were
justified in securing an absolute interim order of stay
at the hands of this Court. The co-ordinate Bench
held that the petitioners prayer for issuance a writ of
mandamus has been structured on the basis of a
Government Order which by itself does not create any
choate interest in any particular piece of land.
Petitioners who were yet to indentify any specific area
cannot completely block out the entire extent of
earmarked land that admeasures thousands of acres.
It was therefore directed that it is high time that the
Government and KREDL ponder over such problems
and take appropriate measures so that huge projects
of the kind are not imperiled by avoidable litigations
as the ones on hand. Otherwise, what would be at
stake is, nothing but the public interest.
20. In the considered opinion of this Court, so
much has been said by the co-ordinate Bench in its
order dated 21.09.2022 and the all important mischief
found in the old RE policy 2009-2014 has not been
addressed by the Government in the new policy.
Admittedly, the State Government intended to
establish a dynamic renewable sector with emphasis
on different forms of generation- wind, mini-hydro,
biomass, cogeneration and solar energy. It was felt
that there is a need to have a clear policy frame work
to provide and sustain efforts in that directions. It
was therefore felt that there is a need for a new
renewable energy policy in the State. It was found
that there is a need to encourage private
entrepreneurs to identify and develop small capacity
projects in wind, mini-hydro, biomass, cogeneration
and solar energy. Emphasis was laid on generating
green energy, reduce harmful effects of global
warming and ozone layer depletion. Some key
measures were proposed to address the constraints
faced by persons and entities which had the
wherewithal to generate such green energy but faced
difficulty in the matter of purchasing lands and
obtaining permission from the Deputy Commissioner
of the Districts or other modes of purchase. Having
these things in mind, the RE policy was formulated. It
was noticed by the co-ordinate Bench that the policy
sought to earmark vast extents of land to a particular
allottee. It is noticeable that even in terms of the
policy, what was sought to be earmarked were private
patta lands and unidentified public lands. Therefore,
the project proponents knew that no discrete right
would vest in the allottee, even if such lands were
earmarked for their benefit. The requirement of the
policy was that after the Government Order was
issued, the allottee was required to procure the
requisite lands either by way of absolute purchase or
on lease. Nevertheless, the allottees have sought to
take advantage of the earmarking of such vast lands
and raised objections when a small portion of such
lands were sought to be allotted to another entity.
21. In the statement of objections filed at the
hands of the respondent-State and KREDL it has been
stated that the allottees have sought to create a
monopoly over the geographical area, to the
determent of the State. It has been contended that
the policy did not in any manner stipulate that the
geographically area was allotted exclusively in favour
of any party. The idea was to create conditions
condusive to private/ public/ community participation
and investment in renewable energy power projects.
It is contended that if an area is reserved solely for a
specific developer then, the said objective of the
policy would stand defeated, as it takes away the right
of other developer from developing the project in the
same area, which is not the purport of the policy. It
has also been contended that the allottee may not
have the capacity to install the project in the
geographical location and may only partially install the
capacity. Under such circumstances, no allottee can
claim exclusivity over the earmarked area.
22. Having said all this, this Court fails to
understand as to why the policy provided for transfer
of rights. During the course of the proceedings, this
court had called upon the learned AAG as well as the
learned Counsel for the KREDL to point out from the
policy document as to whether there is a provision
made for the applicant who was granted the
Government Order to transfer its rights in favour of
another entity. It was also required to point out that
if there is no such express provision, then why the
application for transfer of rights were being
entertained. In compliance of the same, the
respondent-KREDL had filed a memo dated
16.01.2024 only pointing out that in Clause 25 of the
RE policy 2009-2014 the State Government had
reserved its authority to issue connected Government
Order and Government Order for transfer of capacity.
This court fails to understand as to why such transfers
were permitted, which would become a tool in the
hands of such allottees who didn't have the
wherewithal to implement the project. If the intention
of the State was to allot such projects to entities
which had the capacity and wherewithal to implement
the projects, then where was the need to allow
transfer of the rights? Only such allottees who were
not in a position to implement the project would seek
transfer of their rights, and at a premium of course.
23. Having regard to the earlier experiences
where an allottee was granted Government Order, say
to an extent of 16 MW, it would seek transfer of 1 or 2
MW to another entity. As soon as such transfer is
permitted, the transferee would immediately seek
enhancement for about 100 MW. As noticed
hereinabove, the original allottee is more than willing
to share the earmarked land with such transferee, but
it would raise objections if similar lands are to be
allotted to any other entity. Nevertheless, this Court
is of the considered opinion that the new RE policy
2022-2027 failed to address the mischief area. The
new RE policy should have done away with the
provision for transfer. The State should have retained
the power to allot the rights instead of allowing the
allottees to seek transfer of such rights. This is the
reason why this Court is constrained to hold that the
RE policy of the State is flawed.
24. Insofar as the contention of the learned
Senior Counsel for the petitioners regarding the
promissory estoppel, this court should point out from
the decision cited by the learned Senior Counsel in the
case of Transmission Corporation of Andhra
Pradesh Ltd., and another Vs. Sai Renewable
Power Pvt. Ltd., and Others (2011) 11 SCC 34,
where it was held that the doctrine of promissory
estoppel is not really based on principle of estoppels,
but is a doctrine evolved by equity in order to prevent
injustice. There is no reason why it should be given
only a limited application. It was held that even if it is
assumed that there was a kind of unequivocal promise
or representation given by the respondents, the
review therein took place only after the period
specified under the guidelines. In the present case
too, since the application for transfer and subsequent
enhancement at the hands of the petitioners came
long after the stipulated period, the application is
rightly to be rejected. This Court does not see any
injustice being done to the petitioners.
25. Further, having regard to the decision
rendered by the co-ordinate bench in the case of SRK
Energy (supra), this Court is of the considered
opinion that since the first petitioner filed an
application after lapse of 24 months in terms of the
time line stipulated in the old RE policy 2009-2014
and the corrigendum dated 18.07.2011 and with the
lenience shown, having regard to the OMs issued by
the Government of India on account of COVID 19, and
since the first petitioner allottee failed to submit the
DPR and seek enhancement within the stipulated time,
the petitioners are not entitled for the relief sought in
their petitions. This Court is also of the considered
opinion that the issuance of Government Orders in
favor of the first petitioner did not give it any
monopolistic rights over the earmarked area. It is
given to understand that the area earmarked to the
1st petitioner for 8MW is around 64,000 acres and in
terms of the New RE Policy 2022-27, at the rate of 4
acres per WTG, only a few hundred acres may be
allotted to the 1st petitioner. Similarly, if about 300
MW is the capacity allotted to the contesting
respondents, they may identify about 1200 acres of
land. It still leaves more than 55,000 to 60,000 acres
to the 1st petitioner, depending on how much of it has
been shared with its own transferees. It is also
doubtful as to whether the 1st petitioner has procured
even a few hundred acres till date. In that view of the
matter, the issuance of Government Order in favour of
the contesting respondents cannot be faulted.
However, stipulation of condition No.7 in the
Government Order issued in favour of the contesting
respondents-M/s. FP Sun Spark/FPEL Trizoners cannot
be sustained.
26. Consequently, this Court proceeds to pass
the following:
ORDER
(i) W.P.Nos.6546/2023 and 6550/2023
are dismissed.
(ii) W.P.Nos.11271/2023 and 11272/2023
are allowed while setting aside
condition No.7 imposed in their
respective Government Orders.
Ordered accordingly.
Pending I.As., if any, stand disposed off.
Sd/-
JUDGE
DL/KLY
CT: JL
