The Delhi High Court on Wednesday asked the Centre through Ministry of Power to examine the rival claims and consider the validity of the right of the States of Haryana as well as Delhi for continued allocation of Dadri-II power plant.
Justice Yashwant Varma also asked the Centre to explore avenues which may safeguard the interests and projected needs of the two States and take an appropriate decision based on a holistic examination of all the facts that may be placed before it.
The Court passed interim directions in pleas challenging the order of 29 March 2022 passed by the Ministry of Power which, alluding to a purported surrender of power generated by the Dadri-II Thermal Power Station by the Delhi Government, had transferred the same to the State of Haryana. The Court had stayed the said impugned order on March 30.
The Court said that the interim order staying the Centre's decision will continue till a final decision is taken by the Ministry of Power.
"Bearing in mind the urgency and the shortage of power as canvassed by HPPC, the Court further requests the MoP to proceed in the matter with due expedition bearing in mind the fact that the allocation in favor of the State of Haryana is itself restricted to October 2022 and is stated to be facing severe power outage," the Court added.
The Court was of the view that that there was an emergent need for an exercise being undertaken to examine, evaluate and balance the interests and requirements of two competing constituents of the Union.
It added that the said exercise of balancing would necessarily entail evaluation and examination of various factual aspects including the data that may be produced with respect to the demand of respective States, the availability of alternate sources to meet exigencies, the likely cost burden to be borne by the respective States and other germane considerations which may have a bearing on the issue.
"Both in light of the prima facie conclusions recorded by this Court as well as the MoP by virtue of representing the authority of the Union would appear to be the competent authority to examine and consider the case as set forth by the two competing States for allocation of power generated by Dadri II and pass an appropriate order in respect thereof," the Court observed.
The Court also tool into consideration the fact that while exercising its power of review under Article 226 of the Constitution, it cannot assume or take upon itself the function or the role of the competent executive authority.
"While dealing with a writ petition, the Court must desist or at least refrain from taking on the mantle or adorning the role of the primary decision maker. Even while applying the Wednesbury test, Courts must remember that they are obliged to play a secondary role with the action of the executive being scrutinized on the grounds of rationality and non-arbitrariness," the Court said.
The matter will now be heard on October 10.
Case Title: BSES RAJDHANI POWER LIMITED & ANR. v. NORTHERN REGIONAL POWER COMMITTEE & ORS.
Citation: 2022 LiveLaw (Del) 529