Quashed

Malana Power Company Ltd. v. State of Hp

Himachal Pradesh HC5 Jul 2017CWP/6822/2014

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh considered 11 identical writ petitions challenging orders fixing lease rent for diverted forest lands. The Court held that the orders were arbitrary and violated natural justice principles due to lack of prior notice and hearing. Consequently, the orders were quashed with a direction to issue a proper notice of opportunity of hearing.

What did the court decide?

Impugned orders dated 27.8.2014 were quashed and set aside. Petitioners were directed to be given a proper notice of opportunity of hearing and an opportunity to present their case before a final deci

Malana Power Company Ltd. Vs… — Constitutional and Fundamental Rights | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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CWP No. 6822 of 2014 a/w CWP Nos. 7895 7901, 7103, 9506, 9180, 8835, 9876 of 2014 and 2765, 1998 & 1206 of 2015 Date of Decision: 05.07.2017

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1. CWP No. 6822 of 2014 Malana Power Company Limited …………….Petitioner Versus
State of H.P. and Ors. ……….Respondents
______________________________________________________________ 2. CWP No. 7895 of 2014 Aleo Manali Hydro Power Pvt. Limited …………….Petitioner Versus
State of H.P. and Ors. ……….Respondents
______________________________________________________________ 3. CWP No. 7901 of 2014 Aleo Manali Hydro Power Pvt. Limited …………….Petitioner Versus
State of H.P. and Ors. ……….Respondents
______________________________________________________________ 4. CWP No. 7103 of 2014 AD Hydro Power Private Limited …………….Petitioner Versus
State of H.P. and Ors. ……….Respondents
______________________________________________________________ 5. CWP No. 9506 of 2014 M/s Usaka Hydro Powers (P) Ltd. …………….Petitioner Versus
State of H.P. and Ors. ……….Respondents ______________________________________________________________
6. CWP No. 9180 of 2014 M/s Harisons Hydel Construction Co. Pvt. Ltd. …………….Petitioner Versus
State of H.P. and Ors. ……….Respondents

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7. CWP No. 8835 of 2014 M/s Puri Oil Mills Ltd. …………….Petitioner Versus
State of H.P. and Ors. ……….Respondents
____________________________________________________________ 8. CWP No. 9876 of 2014 M/s K.K. K. Hydro Power Ltd. …………….Petitioner Versus
State of H.P. and Ors. ……….Respondents
____________________________________________________________ 9. CWP No. 2765 of 2015 Sandhya Hydro Power Projects Balargha Pvt. Ltd. …………….Petitioner Versus
State of H.P. and Ors. ……….Respondents
____________________________________________________________ 10. CWP No. 1998 of 2015 M/s Shiva Energy Resources (P) Ltd. …………….Petitioner Versus
State of H.P. and Ors. ……….Respondents
____________________________________________________________ 11. CWP No. 1206 of 2015 M/s Continental Infra-Tech Pvt. Ltd. …………….Petitioner Versus
State of H.P. and Ors. ……….Respondents
--------------------------------------------------------------------------------------- Coram
Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting? No. -------------------------------------------------------------------------------------------------
For the Petitioner(s): Ms. Jyotsna Rewal Dua, Senior Advocate, with Ms. Shalini Thakur,
Advocate,Mr. Ajay Vaidya, Advocate,

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and Mr. Dibender Ghosh, Advocate, for the respective petitioners.

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For the Respondents: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals and Mr. J.K. Verma, Deputy Advocate General, for the State.

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Ms. Ritta Goswami, Central Government Counsel, for Union of India.

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Sanjay Karol, ACJ. (oral)

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Since in all the aforesaid writ petitions, similar questions of law and fact are involved, as such, they are being taken up together and disposed of by a common judgment.

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For the purpose of adjudication, facts of only one writ petition, i.e. CWP No. 6822 of 2014, are noticed.

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After the aforesaid matters were heard for some time, learned counsel for the petitioners submitted that petitioners shall be content if the scope of the petitions is confined, reserving liberty to the petitioners to agitate the other issues at an appropriate stage and time, qua the legality of the impugned order dated 27.8.2014 (Annexure P-17) ( in CWP No. 6822 of 2014), English translation whereof reads as under:-

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“In reference to abovementioned subject and meeting held under the Chairmanship of the undersigned in compliance to Principal Secretary (Revenue), Govt. of Himachal Pradesh letter No. Revenue-D(G) 6-14/2013 dated 5-7-2014, in which you had been directed to deposit one

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time lease rent, it is informed that lease amount in lieu of 61.0 hectare diverted forest land as per the lease rules prevalent at different point of time in the period from dated 19-7-1999 to dated 18-72014 has been calculated to be Rs. 13,85,40,985/- (thirteen crore eighty five lakh forty thousand nine hundred eighty five). From 19-72014 onwards the lease amount payable will be Rs. 16,77,50,000/- per year, which is subjected to an increase of 5 % every five year as per notified policy.

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Hence you are requested to deposit the lease rent for the period from dated 19-7-1999 to dated 18-7-2014 amounting to Rs. 13,85,40,985/- before 3-9-2014 in the Government treasury and submit the receipt of challan with this office and register the lease deed also. Format for lease deed can be obtained from the office of the undersigned on any working day.”

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Otherwise, in support of other contentions, it is contended that the order punitive in nature, unilaterally crystallizes the right of the State, without even affording a proper hearing, much less affording an opportunity of hearing and since passing of the order entails civil consequences, the order passed is absolutely illegal, erroneous, arbitrary and requires to be quashed and set-aside.

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Otherwise, on the main issue, learned counsel have assailed the action to be illegal and arbitrary on the ground that:-

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a) It is in violation of the provisions of Section 2 (II) and (III) of the Forest (Conservation) Act, 1980.

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b) That the demand so raised is in terms of the rules (Annexure P-11, at page 105) (in CWP No. 6822 of 2014), which are not applicable to the petitioner.

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c) In the alternative, lease money prescribed under the said rules cannot be made applicable retrospectively with respect to the present petitioner, to whom the site came to be handed over in the year, 1999.

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d) In any case, the respondent-State is prohibited from raising such demand on the basis of principle of promissory estoppel and legitimate expectation for no condition ever came to be stipulated in the agreement and made known to the petitioner at the time of handing over of site/execution/commissioning of the project.

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e) In any case, petitioner is not liable to pay the amount in view of sanctions dated 19.1.1998 (Annexure P6, at page-59) (in CWP No. 6822 of 2014), and 19.7.1999 (Annexure P-7 at page-63) (in CWP No. 6822 of 2014), so accorded by the Ministry of Environment and Forests.

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At this stage, we clarify that we have not gone into

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this aspect of the matter in view of the scope of the petitions confined only with regard to the legality of impugned orders.

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Before us, it could not be pointed out that the submissions made by the learned counsel, qua the legality of such notice, on the factual aspect is incorrect.

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It cannot be disputed before us that with the passing of the impugned orders, petitioners are under an obligation to deposit several crores of rupees. Rights of the State undoubtedly stand determined.

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Mr. Anup Rattan, learned Additional Advocate General invites our attention to certain communications executed between the petitioners and the respective Deputy Commissioners with regard to the execution of the lease deed and payment of certain amounts but then, these are as vague and unspecific as they can be.

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In fact, the impugned orders do not even deal with any one of the contentions as we notice to have been raised by the petitioners. Hence, to us, such fact of issuing notice itself cannot be considered to be full compliance of principles of natural justice. There are several issues which require examination and decision by the authorities.

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Now, in the instant case, there is nothing on record to establish that prior to the passing of the impugned orders, any proper notice ever came to be issued to the petitioners.

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We are in respectful agreement with the contentions made by the learned counsel for the petitioners that passing of the impugned orders entail civil consequences. Also, it violates principle of natural justice. The orders are absolutely cryptic and unreasoned. As such, on this short ground alone, leaving all other questions open to be decided and adjudicated by the appropriate authority, we quash and set-aside impugned orders with a direction to the respondent-authorities to issue proper and complete notice to show cause and thereafter, after calling for their response in writing and affording an opportunity of hearing to the petitioners, decide the issue in accordance with law, expeditiously and preferably within a period of three months.

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Apart from what we have recorded herein supra, as to whether permissions, if any, were required to be obtained or were already there, by the State Government under the provisions of Sub-section (III) of Section 2 of the Forest

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Conservation Act, 1980, needs to be examined, which we are sure shall be so done by the authorities.

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As such, without touching the merits of the matter, as prayed for, we dispose of these petitions by quashing the impugned orders in all the aforesaid writ petitions, directing the respondents to do the needful, as already observed, in accordance with law.

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Pending applications, if any, also stand disposed of.

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( Sanjay Karol), Acting Chief Justice

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5^th July, 2017 ( Sandeep Sharma ), Manjit Judge.

Malana Power Company Ltd. v. State of Hp

Case brief

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Malana Power Company Ltd. v. State of Hp

Case brief

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