N. Kumar, J.— In these Writ Petitions interesting questions relating to finer aspects of the National Policy on Power which finds statutory recognition and as reflected in the Electricity Act, 2003 and its ramifications, in so far as the obligation of the Government to encourage private sector participation, delicensing of generation and implementation of the concept of open access in transmission vis-a-vis its obligation to provide access to electricity to all areas including villages, hamlets and common man, do arise for consideration.

2. In all these Writ Petitions the petitioners are challenging the Government Order dated 30.12.2008 passed by the State Government under Section 11 of the Electricity Act, 2003 (for short hereinafter referred to as "the Act") directing them to operate and maintain generating stations owned by them and to supply the electricity produced to the State Grid. Though facts of each case are different as the challenge is to the same Government Order and the point involved is purely a question of law they are taken up for consideration together and disposed of by this common order. Though the ground of mala fides is a question of fact raised in one of these Writ Petitions, it is dealt with separately.

Facts in WP Nos. 590 and 591 of 2009:

3. The petitioners have sought in these Writ Petitions a writ of certiorari for quashing the Government Order dated 1.1.2009 and 30.12.2008 at Annexures-A and A1 respectively by which the first petitioner is directed to supply energy to the State Grid at the rate of Rs. 5.50 per unit from their Barge Mounted Power Plant at Tannir Bavi near Mangalore from January 2009 to May 2009.

4. The facts leading to these Writ Petitions are as under:

The first petitioner has established a 220 MW Barge Mounted Power Plant at Tanir Bhavi Village near Mangalore, being the successful tenderer in pursuant to a global tendering process initiated by the Government of Karnataka for setting up power projects in the State. The second petitioner is a company trading in power. The first petitioner was supplying power to the State of Karnataka through a definitive Power Purchase Agreement which expired in June 2008.

5. The second respondent, through its procurement company, namely the third respondent invited tenders in the month of October 2008 for supply of 700 MW of power for the period from November 2008 to January 2009. The second petitioner participated in the said tender for supply of power from the Barge Mounted Plant of the first petitioner with whom it had entered into a back to back agreement. It offered to supply 200 MW of power at the rate of Rs. 9.54 per unit. Pursuant there to a committee was constituted by the Board of Directors of the third respondent, which negotiated with the second petitioner and it was agreed that power would be supplied to the State Grid at the unit rate of Rs. 8.85 in the months of December 2008 and January 2009. A letter of intent was issued accordingly by the fourth respondent on the instructions of the third respondent to the second petitioner, a copy of which is produced as per Annexure-B. In pursuance of the said letter of intent dated 14.11.2008 the second petitioner supplied power to the fourth respondent at the negotiated rate of Rs. 8.85 per unit during the month of December 2008. While matters stood thus, the petitioners were called for negotiation by the Committee headed by the Managing Director of the second respondent at which the only issue raised by the Committee was relating to reduction in tariff on account of a drop in the Naphtha price as also the reduction of import, duty with effect from 7.12.2008. The petitioners expressed their inability to accede to the request of the Committee for reduction in the rate. It was pointed out that the first petitioner has entered into an agreement with Bharat Petroleum Corporation Limited for supply of Naphtha for the Tannir Bavi Power Plant with respect to fuel requirements for the months of Novemb