MEENAKSHI POWER LIMITED Vs. STATE OF ORISSA

JUDGEMENT

(1.) The facts and circumstances giving rise to the present writ application are as follows :-River Kolab is an east flowing river in Orissa and forms common boundary with Madhya Pradesh. The said river is classified as Upper Kolab, Middle Kolab and Lower Kolab. As per the agreement between Orissa and Madhya Pradesh, Orissa is free to make beneficial use of the water of Kolab river lying within its territory.With a view to develop hydro-electric projects by private entrepreneurs, the State Government in the Department of Energy framed a policy guidelines for promotion of Micro, Mini and Small hydro-electric projects by private entrepreneurs as per the G.O. dated 15th May, 1998, annexed as Annexure A/1 to counter-affidavit of opposite party No. 1.The petitioner, a private limited company, applied for Small Hydro-Electric Power Project in the middle Kolab region near Tentuliguma village in the district of Koraput by application dated 11-8-1999 and by letter dated 5-11-1999 the petitioner was granted permission to investigate the feasibility. On 16-12-1999, the petitioner submitted a preliminary feasibility report. The petitioner initially proposed to establish three units of 7 M.W. (total 21 M.W.) with estimated cost of Rs. 95.65 crores. (These details are available from Annexure-C/1 to the counter-affidavit of opposite party No. 1). The petitioner also furnished a bank guarantee for Rs. 21 lakhs.Pursuant to the aforesaid pre-feasibility report, a Memorandum of Understanding (MOU) was executed between the petitioner and opposite parties 1 and 2 on 23-12-1999 (Annexure 1). Thereafter, the petitioner prepared Detailed Project Report (in short, the "DPR") wherein it was suggested to establish Small Hydro-Electric Project with capacity of 25 M.W. (instead of 21 M.W. as indicated in the pre-feasibility report) with two units of 12.5 M.W. each.While the matter stood thus, the petitioner submitted another DPR in respect of two other waterfalls lying up-stream for generating 16 M.W. of electricity and submitted another bank guarantee and sought for amendment of the earlier MOU dated 23-12-1999 accordingly. This proposal was given by letter dated 24-10-2000 (Annexure-2). The relevant extracts of the said communication as per Annexure-2 are quoted hereunder :-

(2.) It is claimed by the petitioner that since investigation had been made by the petitioner and pre-feasibility report had been submitted relating to both the sites and the MOU was in force, the site up-stream could not have been allotted to opposite party No. 3 in view of Cl. 14 of the MOU as well as the policy decision of the Government. It has been further contended that all the four waterfalls are situated within village Tentuliguma and since the said place had already been earmarked for being developed by the petitioner, the same could not have been again allotted to opposite party No. 3. It is also contended that on the request made by opposite party No. 3, the place had been indicated as river Kolab near Pujariguda and since there is no such river near Pujariguda, the order in favour of opposite party No. 3 is of no consequence and should not affect the right of the petitioner to develop and utilise the site for the purpose of establishing a power house.

(3.) Counter-affidavit has been filed on behalf of opposite parties 1 and 2. Separate counter-affidavit has been filed on behalf of opposite party No. 3. It has been indicated in the said counter-affidavits that the pre-feasibility report of the petitioner related to the two waterfalls in the lower part and did not relate to the two waterfalls in the upstream and as opposite party No. 3 had applied for the site upstream earlier by application dated 23-11-1999, the said project has been rightly allotted to opposite party No. 3.