ORDER :

In the instant petition, petitioner has sought for the following reliefs:

(a) Issue a writ or order or direction in the nature certiorari quashing the impugned order dated 17.12.2018 passed by the Karnataka Electricity Regulatory Commission in OP No.91/2018, which is at Annexure-A.

(b) Allow the petitioner to proceed with the Arbitration proceedings initiated under the consent award dated: 05.08.2004 before the Arbitral Tribunal appointed by permanent Court of Arbitration under UNCITRAL Rules; and which is at Annexure-B (UNCITRAL Rules) and Annexure-C is (Consent award)

(c) Declare the communications dated: 29.06.2018, 11.09.2018 and 26.09.2018 of the permanent Court of Arbitration as a legal and valid and which is at part of Annexure-E.

(d) Declare that the KERC acted beyond its jurisdiction by entering upon adjudication under Section 86 (1) (f) of the Electricity Act, 2003 in taking up and deciding the petition filed by the Respondents and also in issuing interim injunctions in total contravention of Section 94 of the Electricity Act, and

(e) Pass such other and further orders as may be deemed just and proper in the interest of justice.

2. Brief facts of the case is that Government of Karnataka invited International competitive bids for setting up of 150 M W Barge Mounted Power Plant (BMPP) based on Low Sulphur Heavy Stock (LSHS) as fuel at Mulki near Mangaluru in the month of December 1995. EuroIndia Power Canara (Private) Limited (EIPCL) was the highest bidder. Respondent No.1 (GOK) accepted the bid of EIPCL in the month of March 1996. Later on, respondent No.1 agreed to alter the project to 195 MW combined cycle plant with Naphtha as a fuel and EIPCL and erstwhile Karnataka Electricity Board (KEB) executed a Power Purchase Agreement on 22.04.1999 (Original PPA). Accordingly tariff was fixed at US$ 0.0389 + Rs.0.1685 (equivalent to Rs.1.95 @ Rs.46/ US$) per KWh due and variable charge as a pass through. Due to changed scenario, in view of the IPP Policy of respondent No.1 which discouraged Naphtha as a fuel and also BMMPs, on 22.05.2001, respondent no.1 accepted the proposal of EIPCL to change the location to Mandya, fuel to coal and capacity of 220 MW gross (200 MW Net) as an extended bid route project, the tariff and other terms of PPA to be negotiated by EIPCL and KPTCL the successor entity to KEB. Accordingly, various changes have been made from time to time like change of location to Hassan on 23.09.2006 so also rename the Company from EIPCL to that of M/s Hassan Thermal Power (Private) Limited (for short ‘HTP(P)L’). Consequently, documents have been prepared in the name of HTP (P) L., Thereafter, the seller and buyers devolved Revised and Restated Power Purchase Agreement in terms of Article 16.1 of the Original PPA of 1999 as Revised and Restated Power Purchase Agreement (for short R and R PPA) was framed on 25.06.2007. In the meanwhile, petitioner on account of delay in concluding the PPA 1999 dated 22.04.1999 in terms of arbitrary clause preferred arbitration while claiming recovery of loss and damages from the respondents for breach of PPA dated 22.04.1999 on 13.01.2003. During the pendency of the arbitral proceedings, joint application was filed under Section 32(2) of the Arbitration and Conciliation Act, 1996 (For short ‘Act 1996’). The Arbitral Tribunal comprised of Mr.Justice S P Barucha (retd), Mr.Aravind Pandey and Mr.Justice K Shivshankar Bhat (retd) proceeded to draw minutes of the proceedings on 05.08.2004 in terms of the application filed by the parties, jointly made and signed by the parties and their counsel for termination of arbitral proceedings in terms of the application. Accordingly, arbitration proceedings stood terminated in terms of the application submitted by the parties.

3. The grievance of the petitioner could not attain finality. At this juncture, Revised and Restated Power Purchase Agreement was executed on 25.06.2007 among BESCOM, MESCOM, GESCOM, HESCOM and CESCOM i.e., buyer a, b, c,