(Prayer: Petition filed under Article 226 of the Constitution of India, calling for the records of the 2nd respondent in its letter dated 03.11.2025 in reference no.CE/Hydro/SE/PD&C/CBNO.1/2025-2026, quash the same and consequently direct the respondent to allot the development of small hydroelectric project of 7.5 MW in Vairavanar Anaicut location to the petitioner.)
1. Challenge has been made in this writ petition to the letter of the second respondent bearing No.CE/Hydro/SE/PD&C/CB No.1/2025-2026 dated 03.11.2025, in and by which, the second respondent has invited the petitioner for competitive bidding.
2. Facts leading to filing of this writ petition are as follows:-
2.a. The petitioner company is engaged in the development of renewable energy projects, including small hydro power projects, with ample prior experience of its consortium members in developing and operating hydro projects in the said field. The Petitioner is registered as a Micro, Small and Medium Enterprises (“MSME”) and has been pursuing these small hydro projects in Tamil Nadu since 2006 through its sister concern B&G Energy Pvt Ltd. The Petitioner is involved in the energy business. The petitioner has its consortium members, M/s Azvi Construction Private Limited and M/s SAS Hydel Projects Private Limited who have implemented, own, operate and maintain a 9.75 MW small hydro power project since 2018 in Hinmatpatti Village, Madhya Pradesh. Further, another consortium member M/s. Sahu Hydro Private Limited has established and is operating and maintaining a 5 MW Hydro electric power project in Chamba District, Himachal Pradesh.
2.b. The petitioner with a view of establishing a small hydro power project in the State of Tamil Nadu has identified a suitable site capable of harnessing the available hydraulic head between the TNEB’s Periyar Powerhouse and the full reservoir level of the Periyar-Vaigai-I SHP Reservoir. As early as on 18.12.2006, B&G Energy Private Limited - a sister concern of the petitioner sent a letter to the TNEB requesting permission to develop the said hydropower project. However, the said request was returned by the TNEB stating that the project would be considered for implementation upon issuance of the State Hydropower Policy. Notwithstanding the same, B&G Energy Private Limited and the Petitioner continued to approach the State Government seeking permission to implement the project under the existing policy framework of the State. In furtherance of the said objective, the company through its directors and their relatives acquired approximately 9.70 acres of land through various registered sale deeds during the years 2009-2010 for the purpose of executing the project. In addition, the said Company had also applied for usage of revenue land as far back as in 2011 and forest land in 2008 for execution of the hydropower project. Subsequently, in 2022, the Petitioner submitted the preliminary design, drawings, stability analysis of the weir, and other cross-masonry structural details to the Government, seeking approval for implementation of the project. The petitioner was under the bona fide belief and legitimate expectation that the application would be considered favourably as the Petitioner was the only entity interested in developing the small-scale hydroelectric project in the above-mentioned site and had the necessary land bank, funds and expertise to implement the project.
2.c. While things stood thus, the Respondent issued G.O.(Ms.).No. 81, Energy Department, dated 22.08.2024, notifying the Tamil Nadu Small Hydro Projects Policy, 2024. The policy appointed the 2nd respondent as the state designated nodal agency for registration and granting in principal approval and facilitation and implementation of the policy and further stated that any person will be eligible for setting up the project for the purpose of captive use within the state, for third party sale and sale of power to the state Discom. The policy also provided that if only one developer is interested in a particular site, then the project will be allotted to the developer but if there is more than one developer interested in a particular site, then the nodal agency will invite bids for allotment of project. In pursuant to the said policy, the respondent invited Expression of Interest, EOI No.CE/Hydro/SE/PD&C/EOI No.02/2024-25 dated 03.03.2025 (hereinafter after referred to as “EOI) inviting proposals for Selection of Developers for Development of Small Hydel Projects at Self- Identified Locations in Tamil Nadu. In addition to other conditions, the EOI provided that government land, if available will be provided to the developers as per the existing policy and in the case of forest land, the developer will have to apply for diversion of the forest land as per procedures. However, the said EOI-other than prescribing essential sections to be contained in the prefeasibility report - did not contain any criteria on the basis of which the bids submitted by the interested developers would be evaluated. The EOI did not have any condition giving priority for entities that have prior experience in executing hydroelectric projects or any basis on which the technical evaluation of the bids would be conducted.
2.d. The petitioner also sought a clarification on 05.04.2025 from the second respondent and the second respondent has issued clarification stating that the competitive bids, if any will be scrutinized as per the policy condition prevailing at the time. Subsequently vide corrigendum dated 22.04.2025, the 2nd respondent clarified that establishing clear land ownership will ultimately facilitate an expedited commencement of commercial operations and consequently, the bidder demonstrating such ownership will receive higher scores and the bidder accumulating the highest points will be favoured. Further, it is also stated that technical superiority cannot be definitively established and will invariably remain a subject of contention. The 2nd respondent is the designated domain expert and is expected to possess the requisite expertise to evaluate the technical merits of competing bids. The corrigendum expressly provided that, in the event the selection parameters are found to be equal among qualified bidders, the evaluation would take into account the commissioned capacity of hydro, solar and wind projects, in that order of priority. However, within 24 hours, the 2nd respondent issued yet another corrigendum dated 23.04.2025, inexplicably removing the clause relating to evaluation priority based on commissioned hydro, solar and wind capacities.
2.e. Under these circumstances and based on the further clarifications issued by the 2nd respondent, the petitioner submitted two bids dated 28.04.2025 seeking allotment and approval for the establishment of small hydro power plants of 7.5 MW and 2 MW capacity respectively, under the selfidentified category. In the said applications, the Petitioner indicated on the extent of private lands already acquired for setting up the 7.5 MW project and also referred to the earlier applications made in 2008 and 2011 for utilizing adjoining forest and revenue lands required for execution of the project. The said applications were already at an advanced stage of consideration and were pending only for final approval from the sponsoring authority, viz., the 2nd respondent herein. Subsequently, the petitioner came to learn that a competing bid had been submitted by the 3rd respondent on the opposite bank of the very same location proposed by the petitioner, the project proposed by the 3rd Respondent is situated on Government poramboke/objectionable lands, which the 3rd respondent does not own to utilise for the project. It is to be noted that ‘objectionable lands’ cannot be assigned, encroached or transferred because they are reserved for specific purposes and for this reason alone, the 3rd respondent’s bid could not have been considered at all. The 2nd respondent’s acceptance of this claim and treating it on par with the petitioner, who already possesses legally available and ready land is arbitrary and unreasonable.
2.f. Challenging the competing bid, the present writ petition has been filed on the ground that the petitioner is already having experience in the field and has also acquired lands, whereas, the third respondent proposes to establish its project solely on Government poramboke/objectionable land. The petitioner possesses experience in implementing hydroelectric projects in Madhya Pradhesh and Himachal Pradesh and demonstrated the technical capacity, expertise, without evaluating the technical expertise, the competitive bid has been called for.
3. Counter has filed by the second respondent opposing the writ petition on the following grounds:-
(a)that Government has taken a policy decision in the Tamil Nadu Small Hydro Projects Policy, 2024 vide G.O.(Ms).No.81, Energy Department dated 22.08.2024. As per the policy, in case there are more than one developer interested in a particular site, then the State Designated Nodal Agency (TNGECL) shall invite bids for allotment of project. Since, both the petitioner and the third respondent expressed interest in the Vairavanar location, the second respondent is duty bound by the Government Order to conduct a competitive bidding process and thus, called for competitive bidding vide the impugned letter dated 03.11.2025 in strict conformity with the very policy cited by the petitioner and the petitioner cannot claim a vested right to an MoU route contrary to the prevailing State Policy.
(b) The detailed technical parameters, such as the exact alignment of the Water Conductance System (WCS), the precise of the land needed etc., are subject to variation during the preparation of the Detailed Project Report (DPR) and detailed investigation stages. Therefore, technical evaluation parameters were not included in the EoI as they are premature at that stage, only feasibility is verified before calling for competitive bidding.
(c)The second respondent as the Designated State Nodal Agency and expert in Hydro Power projects has clarified that technical superiority cannot be definitely established and will invariably remain a subject of contention because technical parameters vary during the DPR stage. To encourage broad participation, prior specific expertise in Hydro power was not made an exclusionary criteria in the EoI. It is the standard industry practice that developers can appoint expert consultants or EPC contractors for specific technical execution. The impugned order calling for the competitive bidding is in strict conformity with the very G.O.(Ms).No.81, Energy Department dated 22.08.2024. Hence, seeks for dismissal of the writ petition.
4. Rejoinder is filed by the petitioner to the counter affidavit filed by the second respondent stating that if there are two or more developers interested in a particular site, the nodal agency has to necessarily study whether the proposals can be treated to be technically equal before inviting them for competitive bidding. If one of the bids is technically superior, inviting the developers for competitive bidding is akin to treating unequal's equally and is violative of Article 14 of the Constitution of India.
5. An additional counter affidavit is filed by the second respondent stating that the competitive bidding is a de novo commercial tender. The request for a 90 day validity period constitutes a fresh requirement for the financial/price bid. It is not a mere 'extension' of the validity of the Expression of Interest. Therefore, the cap of 180 days applicable to extensions of a single tender does not bar the validity period of a subsequent, fresh stage of the tender process.
6. Counter has filed by the third respondent objecting the writ petition on the following grounds:-
(a) At the very threshold, this writ petition is liable to be dismissed. The petitioner has no vested or crystallised right to demand an exclusive allotment of the project. It has voluntarily participated the Notice Inviting Tender ('NIT' in short) resulting in a competitive bidding process which the petitioner now seeks to obstruct. The petitioner has come to the Court after the process are substantially progressed. The petitioner is attempting to use the writ jurisdiction as a means of securing a commercial benefit rather than for enforcement of any public law right.
(b) the petition is barred by acquiescence, delay and approbationreprobation, the petitioner having accepted and acted upon the Small Hydro Policy, 2024 and the NIT and only now seeking to assail the process when it fears an unfavourable outcome.
(c) the writ petition is filed only to avoid competitive bidding and to obtain, through judicial intervention, what the petitioner could never claim as of right in law, namely a direct, non-competitive allotment. The petitioner is not seeking enforcement of public duty; rather, it is seeking to advance its own purely commercial interest by obstructing a transparent tender process in which multiple eligible participant, including the third respondent are entitled to compete.
(d) The petitioner's own conduct in submitting an Expression of Interest pursuant to the NIT unequivocally acknowledges that a competitive bidding process has been introduced, that bids are to be called for, and that the petitioner is only one among several interested developers. The petitioner has not chosen to challenge the policy mandating competitive bidding, nor the Government Order implementing it. Having accepted that framework and having taken the chance of a favourable outcome, the petitioner cannot now, by the present writ petition, seek to nullify the tender process only because it faces the competition from the third respondent.
(e) Technical experts having experience in the Hydro Power Sector in Tamil Nadu were already in the roll of the third respondent company. Through their assessment, a potential project site at Vairavanar Anaicut, Mela Gudalur Village, Uthamapalayam Taluk District and in Kambam Taluk, Theni District was identified for establishing few SHPs.
(f) Following the identification of suitable locations, a detailed and methodical survey was undertaken by the appointed survey agency, M/s.Prime Meridian which collected all necessary data required for conducting the feasibility study of the proposed projects including topographical maps, depth sounding, contours, right of way, land use, weather data, flow data etc., and feasibility study was also conducted and on various other grounds, the third respondent opposes the writ petition.
7. The learned counsel for the petitioner would submit as follows:-
a. The petitioner possesses experience in implementing hydroelectric projects in Madhya Pradhesh and Himachal Pradesh and the petitioner has given application in the year 2008 and demonstrated the technical capacity, expertise, however, without evaluating the technical expertise, the competitive bid has been called for which is not correct.
b. As per the SHP policy, 2024, when there is only one eligible and self identified developer qualifies EoI, then the allotment will be made through execution of MoU with the developer, without evaluating the technical expertise and inviting the competitive bid will go against the very policy of the Government.
c. Though the State Designated Nodal Agency as per the Government Order shall invite Expression of Interest from developers once in 6 months, without evaluating the capacity of the developer inviting competitive bid is contrary to the very policy issued by the Government.
d. The petitioner has already procured land for the purpose of setting up projects, whereas, the third respondent is proposing to establish its project solely on the Government poramboke/objectionable land, this has not been properly assessed. Evaluation shall be made before the issuance of competitive bid, however, admittedly, the same has not been done.
e. As per the clarification dated 22.04.2025, the petitioner has acquired the lands which would ultimately facilitate and expedited commencement of commercial operation (COD) and technical superiority ought to have been evaluated to find out whether the developer has qualified and that too has not been done in this case. Therefore, the competitive bid is not valid in law.
f. Further, only, when the selection parameters are equal among qualified bidders, the competitive bidding is permissible. Hence, seeks for quashing of the competitive bid issued by the second respondent and to allot the project to the petitioner.
8. The learned Advocate General would contend that the detailed technical parameters, such as the exact alignment of the Water Conductance System (WCS), the precise area of land needed etc., are subject to variation during the preparation of the Detailed Project Report (DPR) and detailed investigation stages. Therefore, technical evaluation parameters were not included in the EoI as they are premature at that stage. Only feasibility is verified before calling for competitive bidding. To encourage more participants, the competitive bidding is introduced as a Government Policy. Now, at this stage, what is required is to see is only the feasibility of the developers and the technical evaluation will be done after the bid is open, the same depends on the various capacity of the developers that will be taken into consideration later. Therefore, when the policy itself provides for competitive bidding, the petitioner as a matter of right cannot seek allotment of the hydro project to the petitioner alone, the petitioner cannot seek monopoly of the project. The policy of the Government has not been challenged, therefore, the very writ petition is not maintainable.
9. The learned counsel for the third respondent submitted that at this stage, what is required is to see is only the feasibility of the developers. The petitioner has voluntarily participated the Notice Inviting Tender resulting in a competitive bidding process and having participated, now the petitioner cannot obstruct the competitive bidding by filing this instant writ petition. Hence, opposes the writ petition.
10. Heard both sides and perused the materials placed on record.
11. The State Government vide Government Order in G.O.(Ms.).No. 81, Energy Department, dated 22.08.2024 issued a policy called Tamil Nadu Small Hydel Policy, 2024 for setting up small hydel projects for captive use (self consumption) for third party sale within the State and sale of power to DISCOMS to meet the Renewable Power Purchase Obligation as specified by Tamil Nadu Electricity Regulatory Commission (TNERC). The policy will come into effect from the date its notification and may remain in operation for a period of five years and to be reviewed after 5 years.
12. The mode of allotment under the said policy is captioned under Clause 7, the same reads as follows:-
7. Mode of allotment The SH projects will be allotted in the following manner:
1. The State Designated Nodal Agency may invite Expression of Interest (Eol) from developers once in 6 months.
2. The developer can identify and apply to the State Designated Nodal Agency along with project details
3.For participation of EoI, Bank Guarantee (BG), an indicative project cost and criteria for evaluation as determined by the nodal agency will be mentioned in EoI.
4. If only one developer qualifies in EOl for the project, then MOU will be signed with the developer.
5. In case there are more than one developers interested in a particular site, then the State Designated Nodal Agency shall invite bids for allotment of project"
13. The above clause makes it clear that for allotment of Small Hydel projects, the State Designated Nodal Agency may invite Expression of Interest (EoI) from developers once in six months. One of the mandatory conditions is that if only one developer qualifies in EoI for the project, then the MoU will be signed with the developer and in case, there are more than one developers interested in a particular site, then the State Designated Nodal Agency shall invite bids for allotment of project.
14. The second respondent invited the Expression of Interest (EoI) for Sanction of Developer for Development of Small Hydel Projects at a Self- Identified Location in Tamil Nadu dated 03.03.2025, wherein, Clause 3 deals with "Eligible Developers", the same reads as follows:-
"3.Eligible Developers Any individual, company or body corporate or Association or body of individuals, whether incorporated or not, is eligible for setting up of Small Hydel Projects either for the purpose of captive use (self consumption) within the State or for third party sale within the State or sale of power to the State Discom"
15. Clause 6 deals with "Mode of allotment", the same reads as follows:-
6. Mode of allotment The SH projects will be allotted in the following manner:
a. The developer can identify and apply to the TNGECL along with project details & submission of BG and the selection of developer is based on the criteria for evaluation.
b. only one developer qualifies in Eol for the project, then MoU will be signed with the developer.
c. In case there are more than one developers interested in a particular site, then TNGECL shall invite competitive bids for allotment of project.
16. Clause 15 deals with "Provision of Land", the same reads as follows:-
15. Provision of Land
* Government Land: Government land, if available to be provided to the developers as per the existing policy or as per the policy in force at the time of approval.
* Forest land: Developer to apply for diversion of the forest land as per procedures/guidelines laid by respective Departments and by paying applicable charges in full, if any
17. Expression of Interest dated 03.03.2025 under Clause 22 of Instructions to the Applicants also stipulates that the Developer shall identify a location and apply to the TNGECL through Expression of Interest Proposal. Similarly, the Developer, at its own cost shall prepare and submit a Pre- Feasibility Report as per the essential sections provided in Annexure 6 for the project location identified. If required, TNGECL shall instruct the Developer to present report/s on any other aspect pertaining to the application. Therefore, EoI only requires Pre-Feasibility Report prepared by the Developer themselves.
18. Clause 23 deals with "Qualification Criteria", the same reads as follows:-
23. The following will be the minimum qualification criteria for submitting the EoI proposal in response to this invitation. Each Applicant should satisfy all the following qualification criteria prior to the EoI Due Date. Responses not meeting the minimum qualification criteria will be summarily rejected
19. Therefore, for submitting the EoI proposal, only minimum qualification criteria has been mentioned in the EoI issued by the second respondent. When more developers had submitted such proposal with the minimum qualification as indicated in the Expression of Interest, it cannot be said that the competitive bidding can be issued only after comparing the capacity of the developers who had submitted such proposals.
20. It is the contention of the petitioner that the technical superiority should be established before inviting competitive bid. As the EoI prescribes only a minimum requirements for participating in the EoI, this Court is of the view that the petitioner as a matter of right cannot seek technical evaluation and technical superiority to be established before calling for competitive tender. The very object of the policy of the Government makes it clear that allotment should be based on invitation of Expression of Interest from the developers. The developers shall prepare and submit a Pre-Feasibility Report as per the essential sections provided in Annexure 6 for the project location identified. The EoI invitation never stipulates that the technical superiority has to be established before calling for competitive bid.
21. Clause 24 deals with Evaluation Criteria and the same makes its clear that in the event of receiving more than one application for the same location, TNGECL may conduct a competitive bidding process for allotment. The very condition in the EoI clearly stipulates that only Pre-Feasibility Report of the developer is required for participating in the project and in the event of more than one application received for the same location, the competitive bidding is a rule as per the policy of the Government. Such being the position and the policy has also come into effect and not challenged, now, the petitioner merely on the basis of previous experience of having set up such hydro projects in different States and having acquired certain lands for the purpose of project, as a matter of right cannot seek for technical evaluation at this stage. The very purpose of calling for competitive bidding, is ensuring transparency and avoiding the arbitrariness of an MoU route.
22. The very policy condition itself clearly indicates that if more than one application is received, the competitive bidding is a Rule. When there is an allotment of state resources, transparency and fair play are essential. The state of its instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. This has been held by the Hon'ble Supreme Court in the case of Akhil Bhartiya Upbhokta Congress vs. State of M.P reported in (2011) 5 SCC 29. For better appreciation, the relevant paragraph of the judgment reads as follows:-
“ 65. What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.
66. We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organisations or institutions dehors an invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favouritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution.”
23. The State is the legal owner of natural resources as a trustee of the people has brought a policy for allotment. Such view of the matter, when the policy itself indicate that for participation of the invitation to EoI, only Pre- Feasibility Report should be submitted by the developers, therefore, if really, the petitioner is sound, technically qualified and having more capacity, the evaluation will be made as per the condition of the policy. Therefore, as a matter of right, the petitioner cannot prevent others from participating in the competitive bidding. In fact, the writ petitioner by way of filing this writ petition is trying to restrain others in participating the tender, which, in fact, goes against the very Tender Transparency Rules. Only when the conditions are malafide, arbitrary, discriminatory or actuated by bias, judicial intervention is required. The condition that when there are more than one developer is interested in a project, conducting competitive bidding is neither arbitrary nor discriminatory. In this regard, it is relevant to refer to the judgment of the Hon'ble Supreme Court in the case of Tata Motors Limited vs. The Brihan Mumbai Electric Supply and Transport Undertaking (Best) and others reported in (2023) 19 SCC 1, wherein, the Hon'ble Supreme Court has held as follows:-
“ 50 . This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. (See Silppi Constructions Contractors v. Union of India [Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489] .)”
24. Superadded, it is apposite to point out to the decision of the Hon'ble Supreme Court in the case of Jagdish Mandal vs. State of Orissa and others reported in (2007) 14 SCC 517, wherein, it was held that while invoking power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bonafide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.
25. Further, it is also to be noted that the very policy which came in the year 2024 has not been challenged by the petitioner, whereas, when the tender has been notified for competitive bidding, the petitioner has come up with this writ petition seeking for allotment of the project in his favour which in view of this Court is not proper and the petitioner cannot challenge the tender which is notified for competitive bidding at this stage.
26. In view of the above, I do not find any merits in this writ petition and accordingly, this writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition stands closed.
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