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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M. NAGAPRASANNA, J.
Aadyaarush Power Projects Pvt. Ltd. – Petitioner
Versus
State of Karnataka, Department of Energy, Bengaluru – Respondent
Writ Petition Nos. 57898 of 2017, 30716, 52028 of 2018, 7358, 7675, 7698, 7724, 7782, 7930, 12611, 12637, 12644 of 2020
Decided On : 20-09-2021
CONSTITUTION OF INDIA,1950 - ARTICLES 8,2,226,12,10 AND 227 - Karnataka Electricity Regulatory Commission (General and Conduct of Proceedings) Regulations, 2000 - Regulations 11 and 14 - COMPANY REGISTERED UNDER COMPANIES ACT, 2013 - A COMPANY REGISTERED UNDER COMPANIES ACT, 1956 - Electricity Act, 2003 - Section 111 & 108 - Assemblage of these petitions raise a challenge to order passed by Karnataka Electricity Regulatory Commission in rejecting Original Petition filed before it by petitioners and directing that petitioners shall be entitled to a particular tariff - Since facts are common in all these petitions, facts obtaining in Writ Petition ore referred to in Court order for sake of convenience - Whether Commission could have directed BESOOM to direct petitioners and like to approach Commission for extension of time.
Finding of the Court:
Court hold that action of Commission in soliciting petitions to be filed before it after having pre-judged issue is in violation of every known canon of principles of natural justice and is vitiated by bias; jurisdiction of Commission cannot be taken away on plea of petitioners that parties cannot confer jurisdiction; parties have not conferred jurisdiction, jurisdiction is conferred by Act and PPA between parties - Insofar as contention that alternative remedy of appeal is to be filed by petitioners in terms of Section 111 of Act is concerned, issue need not merit any consideration, in light of preceding analysis with regard to action of Commission being vitiated and jurisdiction of Commission being upheld. - Contention of filing an appeal before Appellate Authority in terms of Section 111 of Act is not gone into- Contention of filing an appeal before Appellate Authority in terms of Section 111 of Act is not gone into - Role of Commission and its power to regulate is delineated in aforementioned judgments - In light of judgments of Apex Court, Commission cannot be kept in dark when effect is amendment to PPA. Therefore, Court decline to accept contention of learned counsel for petitioners that Commission has no jurisdiction to entertain the dispute.
Result: Petitions are allowed,
ORDER :
1. Assemblage of these petitions raise a challenge to the order passed by the Karnataka Electricity Regulatory Commission [‘Commission’ for short] in rejecting Original Petition No. 214 of 2017 filed before it by the petitioners and directing that the petitioners shall be entitled to a particular tariff. Since facts are common in all these petitions, facts obtaining in Writ Petition No. 52028 of 2018 are referred to in this order for the sake of convenience.
2. Succinctly stated, the facts germane for consideration of the lis are as follows:-
3. On 26.08.2015, a power purchase agreement was entered into between the petitioner and the Bangalore Electric Supply Company Limited [‘BESCOM’ for short]. The power purchase agreement so entered into between the petitioner and BESCOM was approved by the Commission on 01.09.2015 pursuant to which, the petitioner applied to KPTCL for evacuation approval on 05.08.2016. Pending such approval, the petitioner also applied before the Deputy Commissioner, Davangere for conversion of land in Sy. No. 67 measuring 10 acres for the purpose. After submission of such application for conversion KPTCL issued an order of approval of temporary evacuation on payment of process fee and payment for evacuation on 19.09.2016. This resulted in supplemental power purchase agreement between the petitioner and the 2nd respondent on 28.09.2016. After the supplemental power purchase agreement, the petitioner applied for a no objection from Soratur Grama Panchayat, Honnali Taluk, Davengere.
4. On 19.10.2016 the Deputy Commissioner before whom the conversion application was pending accorded conversion after obtaining NOC from Soratur Grama Panchayat. Thereafter the 1st respondent/Government directed all ESCOMS to form a three member committee to consider extension requests of farmers holding lands for a period of 3 months. The communication was sent to all ESCOMS on 24.11.2016. On 06.01.2017 the petitioner requested BESCOM to grant extension of scheduled date of commissioning of the project by 6 months on account of force majeure. The BESCOM on receipt of such request from the petitioner and the like, directed the petitioner to submit documents in support of the claim for extension of the project.
5. On 27.02.2017 the petitioner again requested along with all the documents extension of scheduled date of commissioning of the project by six months. Pending all such applications for extension - one from the farmers and the other from the petitioner and the like, KREDL informed all ESCOMS by its communication dated 16.03.2017 that requests for extension of time should not be considered as a routine exercise except under extraordinary conditions to be proved by the project developer within the scope of the power purchase agreement. The Commission issued another letter/direction directing BESCOMs to advice the petitioner and all those who were in possession of such power purchase agreements to file a petition before it with all necessary documents seeking approval for extension of time. This direction of the Commission was issued on 05
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