State Of Kerala vs W.I. Services & Estates Limited And Ors.

2. This appeal arises out of a writ petition filed by Respondent 1 in the Kerala High Court wherein a writ, order or direction was sought that the eligibility of Respondent 1 for grant of fuel linkage for Independent Power Projects (IPPs) to the extent of 100 MW may be considered by the State Government of Kerala.

3. The Government of India had allotted a quota of liquid fuel for 660 MW to the State of Kerala. There were a number of applicants requesting for liquid fuel linkage for their IPPs. For the purpose of selection, five projects including that of Respondent 1 were shortlisted. The case of Respondent 1 was not recommended to the Central Government for fuel supply. Feeling aggrieved by the said recommendation, Respondent 1 filed the writ petition which has given rise to this appeal. In the writ petition Respondent 1 did not implead the other applicants whose IPPs have been selected for recommendation. The case of Respondent 1 was that those applicants were not necessary parties because the allotment in their favour was not being assailed and only the policy of the Government in the matter of selection had been challenged. The said writ petition was considered by a learned Single Judge of the High Court who, by judgment dated 29-9-1997, dismissed the same. Apart from rejecting the submissions of Respondent 1 on merits, the learned Single Judge was also of the view that the writ petition filed by Respondent 1 could not be maintained in the absence of other applicants who had been selected. The learned Single Judge has held:

"The petitioner is also aware of the restrictions and limitations in the availability of liquid fuel. The Government of Kerala cannot have control over it, except to accept the limited allocation made by the Government of India. The petitioner has no challenge against the fuel allocation by the Government of Kerala. Naturally, all the IPPs cannot be recommended for fuel linkage. A selection is necessary. That involves exclusion of a few. The petitioner has a case that it should not have been excluded. If the petitioner is to be included, one among the included has to be excluded. But, none of the selected IPPs is made part to the original petition. The petitioner submits that he does not seek exclusion of anyone included. The limited liquid fuel allocation will not allow it. On that reason also interference is impossible.

If Government of Kerala succeeds in getting more allocation of liquid fuel, necessarily, the petitioner shall also be considered."

4. Respondent 1 filed an appeal (Writ Appeal No. 1899 of 1997) before the Division Bench of the High Court which has been allowed by the impugned judgment dated 11-12-1997. The learned Judges on the Division Bench have held that selection was not valid inasmuch as in making the selection the State Government and the Kerala State Electricity Board had not taken into account proper and relevant factors and the exclusion of Respondent 1 was not correct. As regards objection regarding non-joinder of the other applicants who had been selected the learned Judges have said: "The learned counsel for the respondents contended that the petitioner has not impleaded other persons who have been selected for fuel linkage. The learned counsel for the petitioner submitted that the petitioner is not against the grant of fuel linkage to any other person. His attack is against the selection policy adopted by the Government. The learned counsel for the petitioner relied on the decision of the Supreme Court reported in G.M., South Central Rly. v. A.V.R. Siddhantti (Supra) and A. Janardhana v. Union of India (Supra). In these cases, the Supreme Court has held that where a policy or a method of selection is challenged, it is not necessary to implead individual parties."

5. The writ appeal was, therefore, allowed and the State Government was directed to consider the whole matter afresh. Feeling aggrieved by the said decision of the Division Bench of the High Court, the State has filed this appeal.

6. Shri Venugopal, the learned Senior Counsel appearing for the appellant, has submitted that the learned Judges on the Division Bench of the High Court were in error in holding that Respondent I could maintain the writ petition without impleading the other applicants who had been selected. The learned counsel has urged that the principle laid down by this Court in G.M., South Central Rly. v. A. V.R. Siddhantti, and A. Janardhana v. Union of India, has no bearing in the facts of this case because in the present case the quantity of liquid fuel that has been made available by the Central Government to the State of Kerala is limited and since the entire quantity has been allocated for the IPPs of other applicants which have been selected, no further quantity of liquid fuel is available for allocation to Respondent 1 and in the event of the IPP of Respondent 1 being selected on the basis of fresh consideration, one of the applicants whose IPP had been selected earlier would have to make way for Respondent 1 and since none of the applicants was impleaded as a party in the writ petition no order adversely affecting the interests of such applicants could be passed and no effective relief could be granted in favour of Respondent 1. We find considerable merit in the aforesaid submissions of the learned counsel.

7. In order to ascertain whether any additional quantity of liquid fuel quota could be allotted to the State of Kerala, we issued notice to the Ministry of Power, Government of India (Respondent 4) and the Ministry of Petroleum and Natural Gas, Government of India (Respondent 5). In response to the said notice, a counter-affidavit of Shri Sumeet Jerath has been filed on behalf of Respondent 4 wherein it is stated that it will not be possible for the Government of India to release additional allotment of power fuel quota for the State of Kerala as the supply of liquid fuel is limited and liquid-fuel-based power is expensive. In view of the said affidavit filed on behalf of Respondent 4, we have to proceed on the basis that the liquid fuel quota that has been allotted to the State of Kerala has already been allocated for the IPPs of the applicants which had been selected and in the event of its being selected Respondent 1 would be displacing one of the applicants who has been selected. Since none of the applicants has been impleaded as a party to the writ petition, we are of the opinion that the learned Judges on the Division Bench of the High Court were in error in granting relief to Respondent 1 in the said writ petition. We are in agreement with the judgment of the learned Single Judge in this regard.

8. The appeal is, therefore, allowed, the impugned judgment of the Division Bench of the High Court is set aside and the judgment of the learned Single Judge is restored. It is, however, made clear that we are not expressing any opinion on the merits of the controversy that has been raised by Respondent 1 in the writ petition. No order as to costs.

9. In view of the above order, no order is necessary on the application for impleadment.