The Power Of Legitimacy

The Outlook issue dated December 13, 1999, carries an extract titled How They Rammed It Through from Abhay Mehta’s book Power Play. This is quite astonishing as everything in the extract was the matter of judicial scrutiny and was decided in favour of the Central Electricity Authority (CEA), Enron and Dabhol Power Company (DPC).

The book is entirely a compilation of writ petition no. 2456 of 1996 filed in the Bombay High Court by citu and Mehta versus Union of India and others, including the CEA, Enron and DPC. The court dismissed the petition after an exhaustive hearing by means of a 108-page judgement. citu and Mehta then petitioned the Supreme Court. The court deleted DPC, Enron and CEA as respondents from the petition, retaining only the Government of Maharashtra.

We would like to correct the extensive factual errors contained in the book as reprinted in the article for the information of your readers.

The CEA’s techno-economic clearance: Mehta alleges that laws were violated in the process of the CEA granting this clearance and that the CEA, without having the chance to examine any aspect of the project, was forced to grant clearance. Outlook readers deserve to read the CEA’s own account of it as set out in the two affidavits filed in court: "As far as CEA is concerned, the clearance of the scheme was issued only after compliance of the requirements of Sections 29 to 31 of the said Act. CEA...gave careful and bona fide consideration to various factors... before giving its clearance."

Mehta has repeatedly tried to build up a false case by selectively quoting from government correspondence. Impressive as this may sound to people not conversant with the issues, the fact remains that Mehta’s tirades are nothing but convenient interpretations to support his bias against Enron. Thankfully, the courts are concerned with facts and not biases. All the letters, internal memos, notes and minutes that Mehta quotes in his book have been examined by the courts.

CEA’s submissions on DPC’s economic aspects: "The clearance...was certainly not a ministerial record as alleged or that CEA did not consider or clear any of the economic aspects of the scheme.... The clearance...was issued after examining all relevant aspects, including all allowances for expenditure on the capital and revenue accounts and other economic aspects to be examined by it under Section 30 of the (Electricity Supply) Act."

On the specific issue of tariffs, the Dabhol tariff was examined by the CEA and power ministry and found to be lower than what it would have been under the existing tariff notification. To quote the CEA again: "The advice tendered by CEA...was after...considering that the proposed tariff was lower than what would be arrived at by applying the norms prescribed as per the said tariff notification dated 30.3.92."

The Bombay High Court’s judgement: The division bench scrutinised the process whereby the project got CEA’s nod. Since it dismissed the writ, it’s a fair deduction that the bench found nothing in the alleged deficiencies in clearance. Were there any, it’s unlikely the finding wouldn’t have been recorded in its 108-page judgement. So, it follows that the court held the CEA approval as valid and lawful.

These issues were examined by the Bombay High Court in earlier litigations filed by other vested interests. In a verdict passed on September 19, 1994, the judges remarked: "We don’t find any material evidence to substantiate the contention that the contract is arbitrary or illegal or against public interest. There’s nothing to show that anybody was favoured. "

Along with Mehta, some others repeatedly sought to challenge the project. In these litigations too, Mehta was present throughout the court proceedings, indicating his solidarity to their cause. Some verdicts in these cases commented on the abuse of the Public Interest Litigation (PIL) system. Justices D.P. Wadhwa and N.G. Nandi of the Delhi High Court, while passing judgement on writ petition no. 4362 of 1994, remarked that the writ so closely resembled an earlier one filed in the Bombay High court that in their opinion this "would amount to shopping for justice in the garb of PIL."

Mehta’s credentials: Now Mehta is seeking to abuse the medium of the press to discredit the project and its promoters. While carrying the extract from his book, Outlook introduced Mehta as an energy analyst. He may well be. But he fights shy of backing this honour bestowed on him with proof. We contacted Mehta to ascertain his training or experience to comment on energy issues. We informed him that we were planning a rejoinder to Outlook and would like to have our facts straight. He brazenly asked us how it mattered and what if he was, as he put it, "ssc-failed".

Needless to say, his resume eludes us. Abhay Mehta seeks full and complete transparency from Dabhol’s promoters. Yet, he happily excludes himself from these high standards.

Orient Longman, the publishers, fare no better. After a series of calls, we were asked to contact Hemlata Shankar, who edited the book at its Delhi office. She told us that the publishers had no information on Mehta other than that provided by him. We pointed out that it’s accepted practice that publishers provide details on the background of authors. She advised us to obtain them from Mehta. We narrated our experience. She was surprised but expressed her inability to give further details as the publishers had none.

It would appear that the media has abdicated all responsibility of due diligence. It is no surprise then that companies seeking to do business in India are beset with PILs and are forced to exit the country. It’s patently unfair to hold governments solely responsible for the slow progress in infrastructure projects when it is well accepted that the media has a definite responsibility to report accurately.