Pandit Deen Dayal Upadhyay Smriti … vs State Of Jharkhand And Ors. on 22 February, 2002

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Jharkhand High Court
Pandit Deen Dayal Upadhyay Smriti … vs State Of Jharkhand And Ors. on 22 February, 2002
Bench: V Gupta, V Narayan


ORDER

1. The affidavit of the Chief Secretary, Government of Jharkhand has been filed today In the Court. This affidavit in response to our Order dated 28th January. 2002 read with Our Order dated

13th February. 2002. We may also refer to the contents of our order dated 4th January. 2002, specially paragraph-3 thereof.

2. The prayer of the petitioner is that we should issue a mandamus to the State to construct the project in question, the question relating to the grant or refusal of this prayer has to be determined on the touchstone of constitutional parameters as well as the proper exercise of Jurisdiction by this Court under Article 226 of the Constitution of India. It is keeping these in view, that we had invited the affidavit from the Chief Secretary. Government of Jharkhand.

3. The affidavit filed by the Chief Secretary in the Court today informs us that various issues and questions of far reaching importance and magnitude have to be taken into consideration and decided by the Government of Jharkhand before the Government can take a definite stand whether to construct the Project or not to construct the Project. These inter alia, include the issue relating to the acquisition of private land measuring 16,130 hectares as also taking possession of 865 hectares of forest land. All this resulting in alleged dislocation of about 6000 families. Understandably as per the affidavit this has given rise to some resistance on the part the people concerned.

4. The other issue relates to the price of purchasing the power. The affidavit says that the rate of power to be purchased on the completion of this project is fixed at Rs. 7.99 per units as against the price of the thermal power presently available at Rs. 2.50 per unit. The other issue is the cost of the Project, which at March. 2001 price level has been estimated around Rs. 3223.68 crores.

5. After indicating the aforesaid questions and issues and by referring to the statement made by the Chief Minister of Jharkhand in the Legislative Assembly and the minutes of a meeting presided over by the Energy Minister, Jharkhand on 15th February. 2002, the Chief Secretary concludes in his aforesaid affidavit by saying that it is not possible to indicate any commitment, at this stage, as to any time frame within which the issue relating to the building of the project would be sorted out to the satisfaction of the parties concerned, as also the time frame as to when if at all would the construction of the project start.

6. Viewed thus we find that in a situation as has been presented to us by the Chief Secretary in his affidavit filed in the Court today, i’ indeed, perhaps, may not be immediately possible for the State of Jharkhand to take a definite stand whether to construct the Project or not to construct the Project, and if to construct, when to do so. The difficulties expressed by the State in the Chief Secretary’s affidavit can not be lost sight of by us.

7. Mr. Kapoor the learned Sr. Counsel appearing for respondent No. 9-Chairman cum-Managing Director. NHPC submits that his client has been incurring heavy losses in the past few years because of continued infrastructural and other expenditures being spend in anticipation of the Project being made. This argument of Mr. Kapoor is to be noticed only to be summarily dealt with by a very simple observation that if the NHPC thinks that the expenditure incurred by it so far has been wasteful and that in future there are no prospects or immediate prospects of the Project being taken up it is entirely for and upto NHPC to consider packing up. Indeed why should an organisation a mere executing Agency insist on continued incurring of wasteful expenditure when the very existence of the Project is in serious doubt, Any way that is something which the NHPC itself has to decide about. On this question, it does not need any direction from us.

8. Mr. Kapoor also could not draw our attention to any document nor could he bring to our notice any other material whereby it would be suggested that the State Government ever held out any assurance, direct or indirect, or any promise to NHPC that it should set up its infrastructure in the State in anticipation of the execution of the Project work. If therefore, NHPC itself went ahead and sec. up such infrastructure, it did so at its own period and has itself to be blamed for incurring any expenditure which it now terms as wasteful or infructuous. We are not in a position to comment one way or the other about such aspect of the matter. We are making this observation only to deal with Mr. Kapoor’s contention that NHPC has suffered losses on account of expenditure incurred by it in setting up the infrastructure and keeping it up for last so many years.

9. In the totality of circumstances, therefore, we find this to be a fit case where we should decline to exercise our jurisdiction vested in us under Article 226 of the Con
stitution of India, The petition is dismissed.

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