Karnataka High Court
Renew Power Private Limited vs State Of Karnataka on 2 December, 2021
Bench: S.R.Krishna Kumar
1
®
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.5703 OF 2020
C/W
WRIT PETITION NOs.5303 OF 2020, 5341 OF 2020,
5346 OF 2020, 5347 OF 2020, 5354 OF 2020,
5357 OF 2020, 5361 OF 2020, 5362 OF 2020,
5364 OF 2020, 5365 OF 2020, 5368 OF 2020,
5369 OF 2020, 5371 OF 2020, 5374 OF 2020,
5375 OF 2020 (GM-KEB)
IN W.P.No.5703 OF 2020
BETWEEN:
1. RENEW POWER PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
2. M/S RAJAT RENEWABLES LTD
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
2
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
2. HUBLI ELECTRICITY SUPPLY COMPANY LIMITED
A COMPANY REGISTERED UNDER THE PROVISIONS OF
COMPANIES ACT, 1956, HAVING ITS REGISTERED
OFFICE AT P.B.ROAD, NAVANAGAR,
HUBBALI-580 025
REPRESENTED BY ITS MANAGING DIRECTOR
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD,
BANGALORE-560 009
REPRESENTED BY ITS
MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R2
SRI S.SRIRANGA, ADVOCATE FOR R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DATED 07.08.2019, 06.09.2019,
14.10.2019, 07.11.2019, 10.12.2019, AND 09.01.2019 ANNX-H1 AND
K (COLLY)) AND MAKING A PAYMENT OF A SUM OF
RS.3,63,03,568/- (RUPEES THREE CRORES SIXTY THREE LAKHS
THREE THOUSAND FIVE HUNDRED AND SIXTY EIGHT ONLY) TO
THE PETITIONER NO.2 AND ETC.
IN W.P.No.5303 OF 2020
BETWEEN:
1. RENEW POWER PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
3
2. RENEW WIND ENERGY (SILPA)
PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE PROVISIONS
OF THE COMPANIES ACT, 2013 AND HVAVING ITS
REGISTERED OFFICE AT NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT
2. HUBLI ELECTRICITY SUPPLY CO. LTD.,
A COMPANY REGISTERED UNDER
THE PROVISIONS OF COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT P.B.ROAD,
NAVANAGAR, HUBBALI-580 025
REPRESENTED BY ITS MANAGING DIRECTOR
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD,
BANGALORE-560 009
REPRESENTED BY ITS
MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R2
SRI S.SRIRANGA, ADVOCATE FOR R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DATED 06.08.2019, 06.09.2019,
4
09.10.2019, 06.11.2019, 06.12.2019, AND 06.01.2020 (ANNXURE-
G1 AND J) AND MAKING A PAYMENT OF RS.34,96,63,750/-
(RUPEES THIRTY FOUR CRORES NINETY SIX LAKHS SIXTY
THREE THOUSAND SEVEN HUNDRED AND FIFTY ONLY) TO THE
PETITIONER NO.2 AND ETC.
IN W.P.No.5341 OF 2020
BETWEEN:
1. RENEW POWER PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
2. KANAK RENEWABLES LIMITED
A COMPANY INCORPORATE UNDER
THE PROVISIONS OF THE COMPANIES ACT, 1956 AND
HAVING ITS REGISTERED OFFCE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT
2. HUBLI ELECTRICITY SUPPLY CO. LTD.,
A COMPANY REGISTERED UNDER
THE PROVISIONS OF COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT P.B.ROAD,
NAVANAGAR, HUBBALI-580 025
REPRESENTED BY ITS MANAGING DIRECTOR
5
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD,
BANGALORE-560 009
REPRESENTED BY ITS
MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R2 & R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DATED 06.09.2019, 14.10.2019,
07.11.2019, 10.12.2019, 09.01.2019 FOR 23.1 MW AND 6.9.2019,
14.10.2019, 7.11.2019, 10.12.2019, 09.01.2020 FOR 2.1 MW
(ANNEXURE-H1 AND K COLLY) AND MAKING OF PAYMENT OF
RS.8,73,560,740/- (RUPEES EIGHT CRORES SEVENTY THREE
LAKHS FIFTY THOUSAND SEVEN HUNDRED AND FORTY ONLY)
ON THE P.2 AND ETC.
IN W.P.No.5346 OF 2020
BETWEEN:
1. RENEW POWER PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
2. M/S RAJAT RENEWABLES LTD
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
6
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
2. GULBARGA ELECTRICITY SUPPLY COMPANY LIMITED
A COMPANY REGISTERED UNDER THE PROVISIONS OF
COMPANIES ACT, 1956, HAVING ITS REGISTERED
OFFICE AT STATION ROAD, KALBURGI-585 101
REPRESENTED BY ITS MANAGING DIRECTOR
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD, BANGALORE-560 009
REPRESENTED BY ITS MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI MURUGESH V.CHARATI, ADVOCATE FOR R2
SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DTD.6.9.2019, 14.10.2019,
7.11.2019, 9.12.2019, 9.1.2019, (ANNEXURE-K (COLLY) AND
MAKING OF PAYMENT OF RS.86,47,565/- (RUPEES EIGHT SIX
LAKHS SEVENTY SEVEN THOUSAND FIVE HUNDRED AND SIXTY
FIVE ONLY) ON THE P-2 AND ETC.
IN W.P.No.5347 OF 2020
BETWEEN:
1. RENEW POWER PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
7
2. M/S RAJAT RENEWABLES LTD
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
2. HUBLI ELECTRICITY SUPPLY CO. LTD.,
A COMPANY REGISTERED UNDER
THE PROVISIONS OF COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT P.B.ROAD,
NAVANAGAR, HUBBALI-580 025
REPRESENTED BY ITS MANAGING DIRECTOR
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD, BANGALORE-560 009
REPRESENTED BY ITS MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI MURUGESH V.CHARATI, ADVOCATE FOR R2
SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R2 & R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DATED 08.07.2019, 07.08.2019,
06.09.2019, 14.10.2019, 07.11.2019, 09.01.2020 (ANNEXURE-H1
AND K) AND MAKING A PAYMENT OF RS.6,59,75,311/- (RUPEES
SIX CRORES FIFTY NINE LAKHS SEVENTY FIVE THOUSAND
THREE HUNDRED AND ELEVEN ONLY) TO THE PETITIONER
NO.2 AND ETC.
8
IN W.P.No.5354 OF 2020
BETWEEN:
1. RENEW POWER PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
2. M/S OSTRO DAKSHIN POWER PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT
2. GULBARGA ELECTRICITY SUPPLY CO. LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT
STATION ROAD, KALBURGI-585 101
REPRESENTED BY ITS MANAGING DIRECTOR
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD,
9
BANGALORE-560 009
REPRESENTED BY ITS MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI MURUGESH V.CHARATI, ADVOCATE FOR R2
SRI S.SRIRANGA, ADVOCATE FOR R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DTD.9.9.2019, 9.10.2019, 6.11.2019,
6.12.2019, 9.1.2020, ANENXURE-K (COLLY) AND MAKING A
PAYMENT 57,02,775/- (RUPEES FIFTY SEVEN CRORES TWO
LAKHS THIRTY EIGHT THOUSAND SEVEN HUNDRED AND
SEVENTY FIVE ONLY) ON THE P-2 AND ETC.
IN W.P.No.5357 OF 2020
BETWEEN:
1. RENEW POWER PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
2. ADYAH SOLAR ENERGY PRIVATE LIMITED
A COMPANY INCORPORATE UNDER THE PROVISIONS OF
THE COMPANIES ACT, 2013 AND HAVING ITS
REGISTERED OFFICE AT
NO. 138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI 110 066,
REPRESENTED BY AUTHORIZED SIGNATORORY, MR.
NIKHIL KUMAR Y.S.
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
10
2. GULBARGA ELECTRICITY SUPPLY CO. LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT
STATION ROAD, KALBURGI - 585 101
REPRESENTED BY ITS MANAGING DIRECTOR
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD,
BANGALORE-560 009
REPRESENTED BY ITS
MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI MURUGESH V.CHARATI, ADVOCATE FOR R2
SRI S.G.PRASHANTH MURTHY, ADVOCATE FOR R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DTD. 20.9.2019, 11.10.2019,
19.11.2019, 9.12.2019, AND 9.1.2020 ANNEXURE-L
COLLECTIVELY AND MAKING PAYMENT OF RS.12,05,54,724/-
(RUPEES TWELVE CRORES FIVE LAKHS FIFTY FOUR
THOUSAND SEVEN HUNDRED TWENTY FOUR ONLY) ON THE P-
2 AND ETC.
IN W.P.No.5361 OF 2020
BETWEEN:
1. RENEW POWER PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
2. ADYAH SOLAR ENERGY PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE PROVISIONS
OF THE COMPANIES ACT, 2013 AND HAVING ITS
REGISTERED OFFICE AT
NO. 138, ANSAL CHAMBERS II,
11
BIKAJI CAMA PLACE, DELHI 110 066,
REPRESENTED BY AUTHORIZED SIGNATORORY,
MR. NIKHIL KUMAR Y.S.
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
2. HUBLI ELECTRICITY SUPPLY COMPANY LIMITED
A COMPANY REGISTERED UNDER THE PROVISIONS OF
COMPANIES ACT, 1956, HAVING ITS REGISTERED
OFFICE AT P.B.ROAD, NAVANAGAR,
HUBBALI-580 025
REPRESENTED BY ITS MANAGING DIRECTOR
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD, BANGALORE-560 009
REPRESENTED BY ITS MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI SHAHBAAZ HUSSAIN, ADVOCATE FOR R2 & R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DTD. 6.6.2019, 11.6.2019, 9.7.2019,
6.8.2019, 17.9.2019, 10.10.2019, 14.11.2019, 9.12.2019, 9.1.2020
ANNXURE-J1, J AND L COLLECTIVELY AND MAKING A PAYMENT
OF RS.17,84,65,057/- (RUPEES SEVENTEEN CRORES EIGHTY
FOUR LAKHS SIXTY FIVE THOUSAND AND FIFTY SEVEN ONLY)
ON THE P-2 AND ETC.
12
IN W.P.No.5362 OF 2020
BETWEEN:
1. RENEW POWER PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
2. RENEW WIND ENERGY (SIPLA) PRIVATE LIMITED
A COMPANY REGISTERED UNDER THE PROVISION OF
THE COMPANIES ACT, 2013 AND HAVING ITS
REGISTERED OFFICE
AT NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY
MR. NIKHIL KUMAR Y.S
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF
SECRETARY TO GOVERNMENT
2. HUBLI ELECTRICITY SUPPLY COMPANY LIMITED
A COMPANY REGISTERED UNDER
THE PROVISIONS OF COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT P.B.ROAD,
NAVANAGAR, HUBBALI-580 025
REPRESENTED BY ITS MANAGING DIRECTOR
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD,
13
BANGALORE-560 009
REPRESENTED BY ITS
MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI SHAHBAAZ HUSSAIN, ADVOCATE FOR R2 & R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DATED 06.08.2019, 09.09.2019,
11.10.2019, 07.11.2019, 06.12.2019, 07.01.2020 VIDE ANNX-G1
AND J (COLLECTIVELY) AND MAKING A PAYMENT OF
RS.13,27,61,611/- (RUPEES THIRTEEN CRORES TWENTY SEVEN
LAKHS SIXTY ONE THOUSAND SIX HUNDRED AND ELEVEN
ONLY) TO THE PETITIONER NO.1 AND ETC.
IN W.P.No.5364 OF 2020
BETWEEN:
1. RENEW POWER PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
2. M/S BIDEAL RENEWABLE PVT. LTD.,
A COMPANY INCORPORATED UNDER
THE PROVISION OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
14
REPRESENTED BY THE ADDITIONAL
CHIEF SECRETARY TO GOVERNMENT
2. GULBARGA ELECTRICITY SUPPLY CO. LTD.,
A COMPANY REGISTERED UNDER
THE PROVISIONS OF COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT
STATION ROAD, KALBURGI-585 101
REPRESENTED BY ITS MANAGING DIRECTOR
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD,
BANGALORE-560 009
REPRESENTED BY ITS
MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI MURUGESH V.CHARATI, ADVOCATE FOR R2
SRI S.SRIRANGA, ADVOCATE FOR R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DATED 09.07.2019, 07.08.2019,
09.09.2019, 09.10.2019, 06.11.2019, 09.12.2019, 06.01.2020 VIDE
ANNX-H1 AND K (COLLECTIVELY) AND MAKING A PAYMENT OF
RS.29,89,75,310/- (RUPEES TWENTY NINE CRORES EIGHTY
NINE LAKHS SEVENTY FIVE THOUSAND AND THREE HUNDRED
AND TEN ONLY) TO THE PETITIONER NO.1 AND ETC.
IN W.P.No.5365 OF 2020
BETWEEN:
1. RENEW POWER PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
2. M/S PUGALUR RENEWEABLE PVT. LTD.,
A COMPANY INCORPORATED UNDER THE PROVISIONS
15
OF THE COMPANIES ACT, 2013 AND HAVING ITS
REGISTERED OFFICE AT
THE FUTURA, BLOCK B, 8TH FLOOR,
NO.334, RAJIV GANDHI SALAI, SHOLINGANALLUR,
CHENNAI 600 119.
REPRESENTED BY AUTHORIZED SIGNATORY
MR. NIKHIL KUMAR Y.S
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
2. GULBARGA ELECTRICITY SUPPLY CO. LTD.,
A COMPANY REGISTERED UNDER
THE PROVISIONS OF COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT
STATION ROAD, KALBURGI-585 101
REPRESENTED BY ITS MANAGING DIRECTOR
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD, BANGALORE-560 009
REPRESENTED BY ITS
MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI MURUGESH V.CHARATI, ADVOCATE FOR R2
SRI S.SRIRANGA, ADVOCATE FOR R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DATED 06.08.2019, 06.09.2019,
09.10.2019, 07.11.2019, 06.12.2019, 06.01.2020 (ANNEXURE-K
(COLLY)) AND MAKING A PAYMENT OF RS.34,98,34,295/-
(RUPEES THIRTY FOUR CRORES NINETY EIGHT LAKHS THIRTY
16
FOUR THOUSAND TWO HUNDRED AND NINETY FIVE ONLY) TO
THE PETITIONER NO.2 AND ETC.
IN W.P.No.5368 OF 2020
BETWEEN:
1. AZURE POWER INDIA PRIVTE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT,
1956 AND HAVING ITS REGISTERED OFFICER
AT 3RD FLOOR, ASSET 301-304 AND 307,
WORLD MARK 3, AEROCITY,
NEW DELHI 110 037,
REP BY ITS AUTHORIZED SIGNATORY,
MR. NAGARAJA NAIK
2. AZURE POWER EARTH PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 1956
AND HAVING ITS REGISTERED OFFICER
AT 3RD FLOOR, ASSET 301-304 AND 307,
WORLD MARK 3, AEROCITY,
NEW DELHI 110 037,
REP BY ITS AUTHORIZED SIGNATORY,
MR.NAGARAJA NAIK
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
2. HUBLI ELECTRICITY SUPPLY CO LTD
A COMPANY REGISTERED UNDER
THE PROVISIONS OF COMPANIES ACT 1956,
HAVING ITS REGISTERED OFFICE AT
P.B. ROAD, NAVANAGAR,
HUBBALLI -580 025
REP BY ITS MANAGING DIRECTOR
17
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD, BANGALORE-560 009.
REPRESENTED BY ITS
MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI SHAHBAAZ HUSSAIN, ADVOCATE FOR R2 & R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DTD. 6.6.2019, 5.7.2019, 3.8.2019,
7.9.2019, 11.10.2019, 12.11.2019, 9.12.2019, 8.1.2020 ANNEXURE-J
COLLECTIVELY AND MAKING PAYMENT OF RS.26,05,68,575/-
(RUPEES TWENTY SIX CRORE FIVE LAKHS SIXTY-EIGHT
THOUSAND FIVE HUNDRED AND SEVENTY -FIVE ONLY) ON THE
P-2 AND ETC.
IN W.P.No.5369 OF 2020
BETWEEN:
1. RENEW SOLAR POWER PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO.138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI-110 066
REPRESENTED BY AUTHORIZED SIGNATORY,
MR NIKHIL KUMAR Y.S.
2. RENEW AGNI POWER PRIVATE LIMITED
A COMPANY INCORPORATE UNDER THE
PROVISIONS OF THE COMPANIES ACT, 2013 AND
HAVING ITS REGISTERED OFFICE AT NO. 138,
ANSAL CHAMBERS II, BIKAJI CAMA PLACE,
DELHI -110 066,
REPRESENTED BY AUTHORIZED SIGNATORORY,
MR. NIKHIL KUMAR Y.S.
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
18
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
2. HUBLI ELECTRICITY SUPPLY COMPANY LIMITED
A COMPANY REGISTERED UNDER THE PROVISIONS OF
COMPANIES ACT, 1956, HAVING ITS REGISTERED
OFFICE AT P.B.ROAD, NAVANAGAR,
HUBBALI-580 025
REPRESENTED BY ITS MANAGING DIRECTOR
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD, BANGALORE-560 009
REPRESENTED BY ITS MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R2 & R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DATED 06.08.2019, 05.09.2019,
09.10.2019, 06.11.2019, 06.12.2019 AND 09.01.2019 VIDE ANNX-L
AND MAKING A PAYMENT OF RS.8,41,78,410/- (RUPEES EIGHT
CRORES FORTY ONE LAKHS SEVENTY-EIGHT THOUSAND
FOUR HUNDRED AND TEN ONLY) TO THE PETITIONER NO.2
AND ETC.
IN W.P.No.5371 OF 2020
BETWEEN:
1. RENEW POWER PRIVATE LIMITED
A COMPANY INCORPORATE UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
19
AND HAVING ITS REGISTERED OFFICE AT
NO. 138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI 110 066,
REP BY AUTHORIZED SIGNATORY,
MR. NIKHIL KUMAR Y.S.
2. RENEW WIND ENERGY (SIPLA) PRIVATE LIMITED
A COMPANY INCORPORATE UNDER THE PROVISIONS OF
THE COMPANIES ACT, 2013 AND HAVING ITS
REGISTERED OFFICE AT
NO. 138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI 110 066,
REP BY AUTHORIZED SIGNATORY,
MR. NIKHIL KUMAR Y.S.
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
2. HUBLI ELECTRICITY SUPPLY COMPANY LIMITED
A COMPANY REGISTERED UNDER
THE PROVISIONS OF COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT
P.B.ROAD, NAVANAGAR, HUBBALI-580 025
REPRESENTED BY ITS MANAGING DIRECTOR
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD, BANGALORE-560 009
REPRESENTED BY ITS MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R2 & R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
20
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DTD.9.9.2019, 11.10.2019,
7.11.2019, 6.12.2019, 7.1.2019, ANNEXURE-J COLLECTIVELY AND
MAKING PAYMENT OF RS.14,11,70,7328/- (RUPEES FOURTEEN
CRORES ELEVEN LAKHS SEVENTY THOUSAND SEVEN
HUNDRED AND THIRTY EIGHT ONLY) ON THE P-2 AND ETC.
IN W.P.No.5374 OF 2020
BETWEEN:
1. RENEW POWER PRIVATE LIMITED
A COMPANY INCORPORATE UNDER
THE PROVISIONS OF THE COMPANIES ACT, 2013
AND HAVING ITS REGISTERED OFFICE AT
NO. 138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI 110 066,
REP BY AUTHORIZED SIGNATORY,
MR. NIKHIL KUMAR Y.S.
2. KANAK RENEWABLES LIMITED
A COMPANY INCORPORATE UNDER
THE PROVISIONS OF THE COMPANIES ACT, 1956
AND HAVING ITS REGISTERED OFFICE AT
NO. 138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI 110 066,
REP BY AUTHORIZED SIGNATORY,
MR. NIKHIL KUMAR Y.S.
...PETITIONERS
(BY SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
2. GULBARGA ELECTRICITY SUPPLY CO. LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956,.
HAVING ITS REGISTERED OFFICE AT
21
STATION ROAD, KALABURGI 585102.
REP BY ITS MANAGING DIRECTOR
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD,
BANGALORE-560 009
REPRESENTED BY ITS
MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI MURUGESH V. CHARATI, ADVOCATE FOR R2
SRI S.G.PRASHANTH MURTHY, ADVOCATE FOR R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
PROCESSING THE INVOICES, DATED 06.09.2019, 14.10.2019,
07.11.2019, 09.12.2019, AND 09.01.2019, (ANNEXURE-K (COLLY))
AND MAKING A PAYMENT OF RS.1,42,26,996/- (RUPEES ONE
CRORE FOURTY TWO LAKHS TWENTY SIX THOUSAND NINE
HUNDRED AND NINETY SIX ONLY) TO THE PETITIONER NO.2
AND ETC.
IN W.P.No.5375 OF 2020
BETWEEN:
1. RENEW POWER PRIVATE LIMITED
A COMPANY INCORPORATE UNDER
THE PROVISIONS OF THE COMPANIES ACT,
2013 AND HAVING ITS REGISTERED OFFICE
AT NO. 138, ANSAL CHAMBERS II,
BIKAJI CAMA PLACE, DELHI 110 066,
REP BY AUTHORIZED SIGNATORY,
MR. NIKHIL KUMAR Y.S.
2. OSTRO MAHAWIND POWER PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT 2013
AND HAVING ITS REGISTERED OFFICE
22
AT UNIT NO. G-0, GROUND FLOOR,
MIRA CORPORATE SUITES, 1 AND 2
ISHWAR INDUSTRIAL ESTATE,
MATHURA ROAD, NEW DELHI 110 065,
REPRESENTED BY AUTHORIZED SIGNATORY
MR. NIKHIL KUMAR Y.S.
...PETITIONERS
(BY SRI SAJJAN POOVAYYA, SR. ADVOCATE FOR
SRI SHODHAN BABU A.M., ADVOCATE
SRI KUSUM RANGANATH, ADVOCATE
SMT AMRITA JOSHI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
VIKASA SOUDHA, DR.B.R.AMBEDKAR VEEDHI,
BANGALORE-560 001
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
2. HUBLI ELECTRICITY SUPPLY CO LTD
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956,
HAVING ITS REGISTERED OFFICE AT
PB ROAD, NAVANAGAR, HUBBALI 580 025.
REP BY ITS MANAGING DIRECTOR
3. THE KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
A COMPANY REGISTERED UNDER THE
PROVISIONS OF COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT
KAVERI BHAVAN, K.G.ROAD,
BANGALORE-560 009
REPRESENTED BY ITS
MANAGING DIRECTOR
...RESPONDENTS
(BY SRI RAMESH GOWDA A., AGA FOR R1
SRI MURUGESH V. CHARATI, ADVOCATE FOR R2
SRI S.G.PRASHANTH MURTHY, ADVOCATE FOR R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO
HONOR ITS PAYMENT OBLIGATIONS UNDER THE PPA, BY
23
PROCESSING THE INVOICES, DATED 08.08.2019, 06.09.2019,
09.10.2019, 06.11.2019, 06.12.2019, 06.01.2020 (ANNEXURE-G1
AND J (COLLY)) AND MAKING A PAYMENT OF RS.40,14,13,594/-
(RUPEES FORTY CRORES FOURTEEN LAKHS THIRTEEN
THOUSAND FIVE HUNDRED AND NINETY FOUR ONLY) TO THE
PETITIONER NO.2 AND ETC.
THESE WRIT PETITIONS COMING ON FOR
'DICTATING ORDERS' THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
These batch of writ petitions which are filed by the
petitioners who are renewable energy generating
companies involved in the business of independent power
production and establishing and operating power plants,
while petitioners in some of the petitions are operating solar
power plants, petitioners in the other petitions are operating
wind power plants. The subject matter of all the petitions
are Power Purchase Agreements (PPAs) entered into
between the petitioners and the various Electricity Supply
Companies (ESCOMs), who are arrayed as respondent
No.2 in these petitions.
2. The details of the petitioners, PPAs, relevant
clauses etc., are as under;-
PETITIONS (WIND) - PPA CLAUSES DETAILS
Sl. WP No. SPV Respond Wind PPA PPA PPA Clause for PPA PPA Dispute
Nos. ent / Clause Clause for Payment obligation clause for Clause Redressal
ESCOM Solar for Late opening for Mechanis
payment Payment Letter of monthly m Clause
of Invoice Surcharge Credit Joint
Meter
Reading
1 5703 of Rajat HESCOM Wind Clause Clause 6.3 / Clause 6.4/Page 44 of Clause Clause Clause 10
2020 Renewa 6.2/ Page Page 44 of Petition / Obligation to 6.5/ Page 7.3/ Page
(Lead bles 44 of Petition/ pay 100% of the 45 of 46 of
Petition) Petition 1.25% PM disputed amount Petition Petition
2 5303 of Renew HESCOM Wind Clause Clause 6.3 / Clause 6.4/Page 44 of Clause Clause Clause 10
2020 Wind 6.2/ Page Page 44 of Petition/Obligation to 6.5/ Page 7.3/ Page
Energy 44 of Petition/ pay 100% of the 45 of 46 of
(Sipla) Petition 1.25% PM disputed amount Petition Petition
3 5341 of Kanak HESCOM Wind Clause Clause 6.3 / Clause 6.4/Page 44 of Clause Clause Clause 10
2020 Renewa 6.2/ Page Page 44 of Petition/Obligation to 6.5/ Page 7.3/ Page
bles 44 of Petition/ pay 100% of the 45 of 46 of
Petition 1.25% PM disputed amount Petition Petition
4 5346 of Rajat GESCOM Wind Clause Clause 6.3 / Clause 6.4/Page 46 of Clause Clause Clause 10
2020 Renewa 6.2/ Page Page 46 of Petition/ Obligation to 6.5/ Page 7.3/ Page
bles 46 of Petition/ pay 100% of the 47 of 48 of
Petition 1.25% PM disputed amount Petition Petition
5 5347 of Rajat HESCOM Wind Clause Clause 6.3 / Clause 6.4/Page 44 of Clause Clause Clause 10
2020 Renewa 6.2/ Page Page 44 of Petition/ Obligation to 6.5/ Page 7.3/ Page
bles 44 of Petition/ pay 100% of the 45 of 46 of
Petition 1.25% PM disputed amount Petition Petition
6 5354 of Ostro GESCOM Wind Clause Clause 6.3 / Clause 6.4/Page 44 of Clause Clause Clause 10
2020 Dakshi 6.2/ Page Page 44 of Petition/ Obligation to 6.5/ Page 7.3/ Page
n 44 of Petition/ pay 100% of the 45 of 46 of
Petition 1.25% PM disputed amount Petition Petition
7 5362 of Renew HESCOM Wind Clause Clause 6.3 / Clause 6.4/Page 44 of Clause Clause Clause 10
2020 Wind 6.2/ Page Page 44 of Petition/ Obligation to 6.5/ Page 7.3/ Page
Energy 44 of Petition/ pay 100% of the 45 of 46 of
(Sipla) Petition 1.25% PM disputed amount Petition Petition
8 5364 of Bidwal GESCOM Wind Clause Clause 6.3 / Clause 6.4/Page 48 of Clause Clause Clause 10
2020 Renewa 6.2/ Page Page 48 of Petition/ Obligation to 6.5/ Page 7.3/ Page
ble 48 of Petition/ pay 100% of the 49 of 51 of
Petition 1.25% PM disputed amount Petition Petition
9 5365 of Pugalur GESCOM Wind Clause Clause 6.3 / Clause 6.4/Page 47 of Clause Clause Clause 10
2020 Renewa 6.2/ Page Page 47 of Petition/ Obligation to 6.5/ Page 7.3/ Page
ble 47 of Petition/ pay 100% of the 48 of 50 of
Petition 1.25% PM disputed amount Petition Petition
10 5371 of Renew HESCOM Wind Clause Clause 6.3 / Clause 6.4/Page 44 of Clause Clause Clause 10
2020 Wind 6.2/ Page Page 44 of Petition/ Obligation to 6.5/ Page 7.3/ Page
Energy 44 of Petition/ pay 100% of the 45 of 46 of
(Sipla) Petition 1.25% PM disputed amount Petition Petition
11 5374 of Kanak GESCOM Wind Clause Clause 6.3 / Clause 6.4/Page 46 of Clause Clause Clause 10
2020 Renewa 6.2/ Page Page 46 of Petition/ Obligation to 6.5/ Page 7.3/ Page
bles 46 of Petition/ pay 100% of the 47 of 48 of
Petition 1.25% PM disputed amount Petition Petition
12 5375 of Ostro HESCOM Wind Clause Clause 6.3 / Clause 6.4/Page 45 of Clause Clause Clause 10
2020 Mahawi 6.2/ Page Page 46 of Petition/ Obligation to 6.5/ Page 7.3/ Page
nd 45 of Petition/ pay 100% of the 46 of 48 of
Petition 1.25% PM disputed amount Petition Petition
PETITIONS (SOLAR) - PPA CLAUSES DETAILS
Sl. WP SPV Respondent Win PPA PPA PPA Clause for PPA PPA Dispute
Nos. No. ESCOMS d/ Clause Clause for Payment clause for Clause Redressal
Solar for Late obligation opening for Mechanis
payment Payment Letter of monthly m Clause
of Invoice Surcharge Credit Joint
Meter
Reading
1 5368 Azure HESCOM Solar Clause Clause 13.4 Clause 13.7.1 & Clause Clause Clause 18
of Earth 13.3.1/ / Page 67 13.7.2/Page 68 of 13.6/ Page 10.2/ Page
2020 Power Page 66 of of Petition/ Petition/Obligation 67 of 63 of
Petition 1.25% PM to pay 95% of the Petition Petition
outstanding
invoice amount
2 5357 Adyah GESCOM Solar Clause Clause 13.4 Clause 13.7.1 & Clause Clause Clause 18
of Solar- 13.3.1/ / Page 72 13.7.2/Page 73 of 13.6/ Page 10.2/ Page
2020 Block Page 71 of of Petition/ Petition/Obligation 72 of 68 of
10 Petition 1.25% PM to pay 95% of the Petition Petition
outstanding
invoice amount
3 5361 Adyah HESCOM Solar Clause Clause 13.4 Clause 13.7.1 & Clause Clause Clause 18
of Solar- 13.3.1/ / Page 69 13.7.2/Page 70 of 13.6/ Page 10.2/ Page
2020 Block Page 68 of of Petition/ Petition/Obligation 69 of 65 of
13 Petition 1.25% PM to pay 95% of the Petition Petition
outstanding
invoice amount
4 5369 Renew HESCOM Solar Clause Clause 13.4 Clause 13.7.1 & Clause Clause Clause 18
of Agni 13.3.1/ / Page 72 13.7.2/Page 70 of 13.6/ Page 10.2/ Page
2020 Power Page 68 of of Petition/ Petition/Obligation 69 of 65 of
Petition 1.25% PM to pay 95% of the Petition Petition
outstanding
invoice amount
PETITIONERS' CONTENTIONS
(i) The Respondent No.1 is the State of Karnataka,
while the Respondent No. 2 in all the petitions are the
respective Electricity Supply Companies (ESCOMS) which
are statutory distribution licensees constituted under the
Electricity Act, 2003 (herein referred as "the said Act of
2003" for brevity). The Respondent No.2 is a "State" within
the meaning of Article 12 of the Constitution of India. The
Respondent No.3-KPTCL performs the functions of
transmission of power in the entire State of Karnataka
and also construction of stations and transmission
lines and maintenance.
(ii) It is contended that Respondent No.2-ESCOMs
being statutory entities/authorities and instrumentalities of
the State Government and wholly owned by the Govt. of
Karnataka are discharging public, and statutory functions
under the provisions of the said Act of 2003. The
Respondent No.2-ESCOMs have an obligation to act fairly
and reasonably in the discharge of their statutory and
contractual functions. The act of non-payment of admitted
and undisputed dues to the Petitioners-Generators is
contrary to public good, public interest, illegal, unfair,
arbitrary and therefore, contrary to Article 14 of the
Constitution of India.
(iii) The petitioners have entered into PPAs as well
as supplementary agreements with the Respondent No.2-
ESCOMs for periods between 20-30 years. The payment of
tariff approved by the respective State Electricity
Regulatory Commissions, which is the Karnataka Electricity
Regulatory Commissioner (KERC), in accordance with
PPAs is a part of the ESCOM's statutory duty of
procurement of electricity in accordance with the procedure
and the contracts approved by the KERC, as per the KERC
(Conditions of license for ESCOMs) Regulations, 2004. The
Respondent No.2-ESCOMs cannot fulfill its statutory duty
of procurement of electricity without paying the tariff for the
energy procured from the Generators as specified by the
KERC and the PPAs between the parties.
(iv) It is averred that the statutory duty of the
Respondent No.2-ESCOMs to pay the tariff prescribed by
the KERC, in accordance with the terms of the PPA
entered into between the parties also arises from Section
61 of the Electricity Act, 2003 read with Regulation 21 of
the KERC (Conditions of license for ESCOMs) Regulations,
2004, require the ESCOMs to act in accordance with the
process for procurement approved by the Commission and
in accordance with the contracts approved by the
Commission, which specifically states that the tariff
determination process must be in accordance with
commercially sound principles and ensure a reasonable
return on investment of the Generators. It is submitted that
permitting Respondent No.2-ESCOMs to evade this
statutory responsibility by delaying payment of dues for
electricity supplied by the Generators is contrary to Section
61 of the said Act of 2003.
(v) It is contended that the Invoices are issued
pursuant to a joint meter reading exercise and as per the
tariff prescribed under the PPA. Respondent No.2-
ESCOMs has acknowledged the supply and quantum of
electricity, despite which the ESCOMs are arbitrarily
withholding payment of the dues owed to the petitioner.
The quantum of energy supplied by the petitioner and the
tariff is admitted and undisputed by the respondents. The
respondent No.2-ESCOMs therefore is obligated to pay the
petitioner as per the terms of the PPAs entered into
between the parties. The respondent No.2-ESCOMs has
also failed to provide the mandatory security towards non-
payment of the tariff as prescribed under the PPA between
the parties by failing to open irrevocable and revolving
Letter of Credit in favour of the petitioner.
(vi) It is averred that the respondent No.2-ESCOMs
has an obligation to make payment of the Invoices by the
5th day of the immediately succeeding month, in which the
monthly bill/supplementary bill is issued by the petitioner as
per the PPA. The petitioners are entitled to receipt of late
payment surcharge for delays in payment as per the PPA.
The non-payment of the petitioner's undisputed dues under
the terms of the PPA has adversely affected the ability of
the petitioner to proceed with the petitioner's operations,
since the petitioner has an obligation to meet its expenses,
liabilities and debt repayment obligations from the tariff
received for the generation of electricity.
(vii) It is contended that the PPA expressly protects
the rights of the petitioner by providing for payment of 95%
of the Invoice amounts even in the case of a disputed
invoice. The protection given to the petitioner is to ensure
that the Generators are not prejudiced in the midst of
supplying electricity as per the terms of the PPA entered
into between the parties. The Respondent No.2-ESCOMs
can always recover the money from the Generators if there
is excess payment for electricity supplied. However, the
Generators will be severely prejudiced if their invoices are
not honoured by the Respondent No.2-ESCOMs.
Therefore, the non-payment of undisputed dues to the
Petitioner No. 2 for electricity generated and supplied to the
Respondent No. 2-ESCOMs is contrary to the public
interest and public goods, as private generators may refrain
from establishing generation of stations in Karnataka due to
the arbitrary, unfair, and unreasonable actions of
Respondent No. 2-ESCOMs in not honoring their payment
obligations under the settled PPAs.
(viii) It is also contended that the arbitrary,
unreasonable, and unjust negligence of the Respondent
No. 2-ESCOMs of its statutory and contractual obligations
has resulted in grave consequences for the petitioner, as
the petitioner is finding it increasingly difficult to meet its
debt repayment obligations and other liabilities; that the
financing for the petitioner's projects is based primarily on
the timely payment of tariff by Respondent No. 2, as the
petitioner will otherwise be unable to meet its debt
obligations which will have a cascading effect on the
financial health of the Petitioners and on the financial health
of the banks and other financial institutions as well. The
non-payment of statutory, admitted and undisputed dues to
the Petitioner is therefore a matter of great public
importance, especially since electricity is an essential good
for the citizens, that the State Government procures from
entities such as the Petitioner.
(ix) It is averred that supply of electricity is a
fundamental right under Article 21 of the Constitution of
India, as electricity forms a part of meaningful right to
shelter under Article 21 of the Constitution of India.
Respondent no. 2 is therefore discharging the functions of
the State in ensuring that consumers are not prevented
from access to their fundamental right to shelter under
Article 21 of the Constitution of India. The willful default of
Respondent No. 2 in not honoring its payment obligations
has a significant impact on the health of the renewable
energy sector as a whole as Generators will be unable to
continue generation of electricity due to the lack of return
on their costs and investments.
(x) It is contended that the Respondent No.2-
ESCOMs have an obligation to act in a reasonable, fair,
and just manner even in contractual relations, especially
when the state is performing a public function for public
good through private persons. Procurement of electricity for
the purpose of supply to various classes of consumers is a
public function for public good which enables the state to
meet its constitutional obligation of providing meaningful
shelter and enabling commerce and industry. The
Petitioners' credit rating and ability to raise finances for new
projects are dependent on receiving timely payments from
the Respondents as per the terms of the PPA entered into
between the parties and approved by the KERC. The
ESCOMs have an obligation to co-operate with the KERC
in its measures to promote generation of renewable energy,
and it is submitted that delaying payments of admitted dues
to generators of renewable energy is contrary to the
scheme of the Electricity Act, 2003.
(xi) It is averred that the Respondent No. 2 has an
obligation to open and maintain a revolving and irrevocable
letter of credit in favour of the Petitioner in accordance with
the PPA entered into between the Parties. The Respondent
No.2 has failed to open and maintain a revolving and
irrevocable letter of credit in favour of the Petitioner
contrary to the specific terms of the contract, and the non-
compliance with an admitted term of the PPA entered into
between the parties is arbitrary and violative of Article 14 of
the Constitution of India. The irrevocable letter of credit is
the only protection against such instances of non payment
of the tariff dues of the Petitioner, and the Respondents
have to mandatorily maintain an irrevocable LC as per the
terms of the PPA.
(xii) It is contended that the tariff determination
process carried out by the KERC is pursuant to Section 86
(1) (a) read with Sections 61 to 64 of the said Act of 2003.
In the case of renewable energy, the tariff determination
must also take into consideration Section 86(1)(e), which
specifically casts a duty on the KERC to promote
generation of electricity through renewable sources. The
tariff determination and the power procurement process are
both functions regulated by the KERC. The two functions
are intrinsically linked and not severable from each other as
there can be no power procurement without the payment of
tariff as prescribed by the KERC under the said Act of
2003.
(xiii) It is further averred that the provisions of the
PPA that deal with tariff related aspects forms a statutory
obligation and to that extent the tariff obligations are both
statutory and contractual in nature. Therefore, the
Respondent No.2 is not only in breach of its contractual
functions but also in breach of its statutory functions under
the provisions of the said Act of 2003. Respondent No. 2
being a deemed Distribution Licensee under Section 14 of
the Electricity Act, 2003 has a statutory obligation to
maintain capital adequacy, and creditworthiness to meet its
payment obligations. The failure of Respondent No.2 to
honor its undisputed payment obligations in a timely
manner, is therefore arbitrary, contrary to the scheme of the
2003 Act, without any basis and a violation of the terms of
its License under Section 14 read with Section 131 (2) of
the 2003 Act. The non-payment of tariff as per the manner
in which it is prescribed in the PPA, approved by the KERC,
in exercise of its regulatory function under Regulation 21 of
the KERC (Conditions of license for ESCOMs) Regulations,
2004, is arbitrary and violative of Article 14 of the
Constitution of India. The delay in payments of admitted
dues is also contrary to Section 61(h) and 86(1) (e) of the
Electricity Act, 2003, which specifically requires the
appropriate commission, which is the KERC in the present
instance to promote generation of electricity from
renewable sources of energy.
3. The Respondent No.1 - the State and Respondent
No.3 - KPTCL have not filed their statement of objections to
the petition. The Respondent No. 2 - ESCOMs have filed
their statement of objections resisting the petition.
CONTENTIONS OF RESPONDENT No.2-ESCOMs
(i) In addition to denying the various contentions
urged in the petition, Respondent No.2-ESCOMs have
contended that the petitions are not maintainable for the
reason that the petitioners have efficacious alternative
remedy available to address the grievances raised in the
above Petition. Section 86(1)(f) of the Electricity Act, 2003
provides for the Respondent No.2 to adjudicate upon
disputes between a generating company and a distributing
licensee. Section 86(1)(f) is a special and specific provision
of law governing the disputes between a generating
company and a distributing licensee and the KERC has
been specially constituted to adjudicate on such disputes.
All the contentions raised in the petition relate exclusively to
the said PPAs and the actions of the Respondents around
it and not otherwise. The said Act of 2003 establishes a
hierarchy of remedies available to the Petitioner. So also,
the PPAs stipulate that dispute resolution, either by way of
adjudication or arbitration has to be done by the KERC
which has to be approached by the petitioners. It is
therefore contended that in view of availability of equally
effective and alternative remedy for the petitioners to
approach the KERC under Section 86(1)(f) of the said Act
of 2003, the present petitions are liable to be dismissed as
not maintainable.
(ii) It is contended that Government contracts
generally have an impact on public welfare. Considering
the impact of such Government contracts, Article 323-B of
the Constitution provides for establishment of tribunals to
deal with disputes affecting the public at large. If disputes
arising out of non - payment of dues in all government
contracts constituting a violation of a fundamental right are
brought under the purview of the High Court's jurisdiction,
there would be no need for any special tribunals. Article
322-B read with the provisions of the Electricity Act, 2003
are special provisions of law that govern the instant dispute
and mandate the Petitioner to file necessary petition before
the KERC and not by way of the present petitions.
(iii) It is averred that if this Court assumes writ
jurisdiction over the issue at hand, a dangerous precedent
will be set as all the matters under the jurisdiction of the
KERC would be subsumed under the High Court's
jurisdiction. If the KERC, a statutory body, equipped with
technical and legal members, specifically constituted to
deal with intricate disputes arising out of the Power
Purchase Agreements is deprived of its jurisdiction at the
matter in hand on the ground that the act of non-payment of
dues by a government company affects public interest at
large; a negative precedent would be set, encouraging
several litigants to circumvent the remedy readily available
to them before approaching the Writ Courts. Through such
an act of judicial adventurism, the purpose of establishing
special courts and the mechanism for dispute resolution
laid out in the Electricity Act, 2003 would be defeated.
Moreover, the Petitioner's contention that the public interest
is being affected can also be looked into by the KERC, as
the provisions of the Act of 2003 mandates a balance of
public and private interest in adjudication of all disputes. It
is therefore contended that there is no merit in the petitions
and that the same are liable to be dismissed.
REJOINDER OF THE PETITIONERS;
(i) In addition to controverting the various contentions
urged by the Respondent No.2-ESCOMs in the defence,
petitioners have pointed out in their rejoinder that the
Respondent No. 2 has admitted the outstanding amounts
towards the payment of electricity and that there is no
dispute on the issue of outstanding amounts, despite which
the Respondent No. 2 has arbitrarily and repeatedly
withheld payments due to the Petitioners. The issues of
arbitrariness by the State in contractual matters and
violation of Article 14 are required to be adjudicated and
decided by this Hon'ble Court and therefore, the Petitioner
has rightly approached this Court.
(ii) It is contended that the present writ petitions are
maintainable against the State and/or State
instrumentalities in contractual matters especially in cases
such as the present instance, where the State is
consistently acting arbitrarily and delaying payments of
admitted dues to be made to the Petitioners. Petitioners
have placed reliance upon the judgments of the Apex Court
in order to contend that this Court may exercise its
extraordinary jurisdiction under Article 226 of the
Constitution of India in matters, where a party is aggrieved
by the action of a public body or authority especially when
the action or conduct of a public body or authority is high
handed, arbitrary, unjust and unlawful even in contractual
matters and even if there exists an arbitration
clause/agreement in the contract.
(iii) It is also contended that the dues owed to the
Petitioner are undisputed dues. The timely payment of tariff
for electricity supplied is the foundational representation of
the contract entered into with the Respondent No.1-State
and the State owned Distribution Licensees i.e.
Respondent No. 2 herein and that the Petitioner herein has
rightly approached this Hon'ble Court particularly when
Respondent No. 2 does not dispute that the PPAs have an
element of public interest. It is averred that the payments
owed to the Petitioner are undisputed dues towards supply
of electricity to the State of Karnataka and that the quantum
of dues or the electricity supplied is not in dispute, as well
the fact that the obligation to make payment within fifteen
days of the receipt of the invoices is also not in dispute.
The Respondents are also aware that the Petitioners are
dependent on prompt payment of dues. The commercial
feasibility of the Project and the financial health of the
electricity generators depend on the prompt payment of
PPA tariff by the Respondents. It is therefore contended
that there is no merit in any of the contentions urged by
Respondent No.2 and that petitioners are entitled to the
relief's sought for by them in the petitions.
4. Heard Sri.K.G.Raghavan and Sri.Sajjan Poovaya,
learned Senior Counsel appearing for the Petitioners,
learned AGA as well as the learned counsel for
Respondents 2 and 3 and perused the materials on record.
5. In addition to reiterating the various contentions
urged in the petitions and referring to the documents
produced by the petitioners, both the learned senior
counsel for the petitioners submit that indisputably,
petitioners have entered into separate PPAs and
supplementary agreements with the respective ESCOMS
for development of power projects across various places in
Karnataka. Referring to the decisions of the Apex Court,
learned senior counsel submitted that writ petitions are
maintainable even in contractual matters relating to the
PPAs, even though the same contain an arbitration
clause/agreement, particularly when no disputed or
complicated questions of fact or contentious issues arise
for consideration in the petitions.
5.1 Learned senior counsel invited my attention to
the material on record including the relevant clauses in the
PPAs in order to contend that pursuant to joint meter
readings in the presence of both the Petitioner and
Respondent No.2-ESCOMs, despite the Petitioner raising
invoices/bills for payments after conducting the requisite
joint meter readings, the Respondent No.2 did not comply
with its liability to make payment in favour of the petitioner.
It is also submitted that the Respondent No.2 did not raise
any dispute with regard to its liability to make payment nor
took recourse to or resort to the dispute resolution
mechanism stipulated under the PPAs. So also, the
Respondent No.2 did not open a Letter of Credit as
enjoined under the PPAs. It is therefore contended that the
Respondent No.2-ESCOMs cannot avoid or evade to
honour or fulfil their liabilities and obligations under the
PPAs by refusing to make payment, open letter of credit
etc., and consequently, necessary directions are to be
issued to them in this regard.
5.2 Learned senior counsel submit that Section
86(1)(f) of the Act of 2003 Act will apply only if there are
disputes between the Petitioner and Respondent No.2 and
not otherwise. Elaborating their submissions, learned
senior counsel submit that the material on record viz., the
joint meter readings conducted in the presence of the
Petitioner as well as Respondent No 2., the bills/invoices
raised by the Petitioner, complete inaction on the part of the
Respondent to raise any dispute with regard to subject
invoices/bills either prior to filing of the petition or thereafter
clearly establish that there is no dispute between the
Petitioner and Respondent No. 2 as regards their liability to
make payments which requires adjudication/arbitration by
the KERC under Section 86(1)(f); it is therefore contended
that in the absence of any dispute between the Petitioner
and Respondent, the question of the Petitioners seeking
adjudication/resolution of a non-existing dispute before the
KERC does not arise, particularly when the remedy under
Section 86(1)(f) is dependent upon existence of a dispute
between Petitioner and Respondent No. 2, and it is only
existing disputes that can be adjudicated/arbitrated by
KERC under the said provision.
5.3 Learned senior counsel further submit that
alternatively, even assuming but not conceding that
Respondent No.2-ESCOMs can dispute their liability with
regard to payment of the amounts payable to the
Petitioners, the PPAs make it obligatory/mandatory for the
ESCOMs to pay 95%(Solar) and 100%(Wind) of the invoice
amounts upfront to the petitioners before raising a dispute
and consequently, it is necessary that directions are issued
to the Respondent No.2 to pay the dues to the petitioners,
open a monthly irrevocable revolving Letter of Credit in
favour of the petitioners; so also, Respondent No.2-
ESCOMs are to be issued necessary directions to honour
all their obligations towards the petitioners under the PPAs
henceforth, in the future also without driving the Petitioners
to initiate fresh proceedings against the ESCOMs for
repeated defaults committed by them. In support of his
submissions, learned senior counsel has placed reliance
upon the following decisions;
(i) Arkay Energy (Rameswarm) Limited Vs. Tamilnadu
Generation & Distribution Company Limited - (2021) 224
Comp Cas 381;
(ii) Union of India & Ors. Vs. Tania Construction
Private Limited (2011) 5 SCC 697;
(iii) HarbansalSahnia & Anr. Vs. Indian Oil Corp Ltd &
Ors. - (2003) 2 SCC 107;
(iv) Major (Retd) Inder Singh Rekhi Vs. Delhi
Development Authority - (1988) 2 SCC 338;
(v) Unitech Limited & Ors Vs. Telangana State
Industrial Infrastructure Corporation & Ors - Civil Appeal
No.317/2021;
(vi) ABL International Ltd & Anr Vs. Export Credit
Guarantee Corporation of India & ors. - (2004) 3 SCC 553;
(vii) Embassy Property Developments Pvt. Ltd Vs.
State of Karnataka & ors. - (2020) 13 SCC 308.
6. Per contra, learned counsel for Respondent No.2
while reiterating the various contentions urged in the
statement of objections submitted that writ petition is not
maintainable since the dispute relates to contractual matter
arising out of the PPAs which contain a dispute redressal
mechanism including arbitration and approaching the
KERC; it is submitted that in view of availability of equally
efficacious and alternative remedy of
adjudication/arbitration of disputes under Section 86(1)(f) of
the Act 2003 as well the PPAs, the Petitioners would
necessarily have exhaust their remedy by approaching the
KERC for adjudication/arbitration of their disputes and
without doing so, the Petitioners are not entitled to invoke
the extraordinary jurisdiction of the court in the present
petition. It is contended that the present petitions arising out
of the contractual matters and involving contentious issues
and disputed/complicated questions of law and fact the
same cannot be adjudicated upon by this court in the
present petitions which are liable to be dismissed. In
support of his contentions, learned counsel for Respondent
No.2-ESCOMs relied upon the following decisions:
(i) Gujarat Urja Vikas Nigam V. Essar Power Ltd -
(2008) 4 SCC 755;
(ii) Spectrum Power Generation Limited V. TCALO -
Appeal No.90/2011 Dated 10.08.2011 by the Electricity
Appellate Tribunal;
(iii) Nabha Power Vs. Punjab Power State Corporation
- Appeal No.283/2015 Dated 17.05.2018 by the Electricity
Appellate Tribunal;
(iv) Gujarat Urja Vikas Nigam Vs. Solar
Semiconductor - (2017) 16 SCC 498;
(v) Tachocline Renewables Vs. KERC -
W.P.No.51696/2017 dated 05.04.2018;
(vi) State of Gujarat Vs. Utility Users Welfare
Association - (2018) 6 SCC 21.
7. I have given my anxious consideration to the rival
submissions and perused the material on record.
8. The following points arise for consideration in the
present petitions;
I. Whether the present petitions in relation to a
contract i.e., PPAs between the Petitioner and
the Respondent No. 2-ESCOMs are
maintainable under Article 226 of Constitution
of India ?
II. Whether the present petitions are maintainable
in view of dispute redressal mechanism
contained in the PPAs ?
III. Whether the present petitions are maintainable
in view of Section 86(1)(f) of the Electricity Act,
2003 ?
IV. Whether the Petitioners are entitled to the
reliefs sought in the petition?
Re: Point No.1
Before adverting to this issue, it is necessary to refer
to certain covenants in the PPAs with regard to joint meter
reading/measurements, raising of invoices, payment of
bills, late payment charges, opening of letters of credit etc.,
(i) As can be seen from the table extracted above,
insofar as the petitioners who are operating solar power
plants are concerned, Clause No.10 of the PPAs stipulates
the procedure for joint meter reading/measurements.
Clause No.13 provides for raising of bills/invoices by the
petitioners and payment by the ESCOMs to them as well
the obligation on the part of the ESCOMs to open revolving
and irrevocable letters of credit in favour of the petitioners.
Clause No.13.7 mandates that even if the ESCOMs dispute
the bills/invoices, the ESCOMs would necessarily have to
pay 95% of the disputed amount to the petitioners as a
mandatory pre-condition and only thereafter, the ESCOMs
would be entitled to pursue the said dispute. Clause No.18
provides for the dispute resolution mechanism.
(ii) Insofar as the petitioners who are operating wind
power plants are concerned, Clause No.7 of the PPAs
stipulates the procedure for joint meter
reading/measurements. Clause No.6 provides for raising of
bills/invoices by the petitioners and payment by the
ESCOMs to them as well the obligation on the part of the
ESCOMs to open revolving and irrevocable letters of credit
in favour of the petitioners. Clause No.6.4 mandates that
even if the ESCOMs dispute the bills/invoices, the
ESCOMs would necessarily have to pay 100% of the
disputed amount to the petitioners as a mandatory pre-
condition and only thereafter, the ESCOMs would be
entitled to pursue the said dispute. Clause No.10 provides
for the dispute resolution mechanism.
(iii) The material on record indicates that in the
instant cases, the Respondent No.2-ESCOMs did not
dispute any of the subject invoices of the petitioners nor
raise any dispute in accordance with the aforesaid clauses
of the PPAs. So also, even after filing of the present
petitions, the ESCOMs did not raise any dispute as regards
their obligation and liability to make payment and open
irrevocable and revolving letters of credit in favour of the
petitioners as per the PPAs; on the other hand, several
payments have been made by the ESCOMs in favour of
some of the petitioners during the pendency of the petitions
thereby admitting their duties, obligations and liabilities
under the PPAs.
(iv) Section 61 of the said Act of 2003, inter-alia,
requires the KERC to ensure that (a) generation,
transmission, distribution and supply of electricity are
conducted on commercial principles; (b) the factors which
would encourage competition, efficiency, economical use of
the resources, good performance, and optimum
investments are promoted; and (c) co-generation and
generation of electricity from renewable sources of energy
is promoted.
(v) In addition to the above, the PPA is approved by
the KERC under Regulation 21.4 of the KERC (Conditions
of license for ESCOMs) Regulations, 2004. The KERC
monitors the PPAs to ensure that the ESCOMs purchase
electrical capacity and/or energy in an efficient and
economical manner under a transparent power
procurement process, and in accordance with the principles
specified under Section 61 of the Act. Therefore, the PPA
has a statutory flavour and is not to be treated as a normal
commercial contract between the Parties.
(vi) The question with regard to the jurisdiction of this
Court to exercise its extraordinary jurisdiction under Article
226 of the Constitution of India in contractual matters in
relation to the PPAs entered into between the petitioners
and Respondent No.2-ESCOMs which is a 'State' within
the meaning of Article 12, is well settled by several
decisions of the Apex Court and this Court. In the case of
Century Spinning and Manufacturing Company Ltd. &
Ors. Vs The Ulhasnagar Municipal Council & Anr.-1970
(1) SCC 58, the Apex Court held as under:
" The High Court may, in exercise of its
discretion, decline to ,exercise its extra-ordinary
jurisdiction under Art. 226 of the Constitution. But
the discretion is judicial : if the petition makes a
claim which is frivolous, vexatious, or prima facie
unjust, or may not appropriately be tried in a petition
invoking extra-ordinary jurisdiction, the Court may
decline to entertain the petition. But a party claiming
to be aggrieved by the action of a public body or
authority on the plea that the action is unlawful,
high-handed, arbitrary or unjust, is entitled to a
hearing of its petition on the merits. Apparently the
petition filed by the Company did not raise any
complicated questions of fact for determination, -and
the claim could not be characterised as frivolous,
vexatious or unjust. The High Court has given no
reasons for dismissing the petition in limine, and on
a consideration of the averments in the petition and
the materials placed before the Court we are
satisfied that the Company was ,entitled to have its
grievance against the action of the Municipality,
which was prima facie unjust, tried."
(vii) In the case of ABL International Ltd. vs Export
Credit Guarantee Corpn. of India Ltd - (2004) 3 SCC
553, the Apex Court held as under;
" From the above discussion of ours, following legal
principles emerge as to the maintainability of a writ
petition :-
(a) In an appropriate case, a writ petition as against a
State or an instrumentality of a State arising out of a
contractual obligation is maintainable.
(b) Merely because some disputed questions of facts
arise for consideration, same cannot be a ground to
refuse to entertain a writ petition in all cases as a matter
of rule.
(c) A writ petition involving a consequential relief of
monetary claim is also maintainable.
(viii) In the case of Kumari Shrilekha Vidyarthi
vs State of U.P - (1991) 1 SCC 212, it was held as
under:
".......Applicability of Article 14 to all executive actions
of the State being settled and for the same reason its
applicability at the threshold to the making of a
contract in exercise of the executive power being
beyond dispute, can it be said that the State can
thereafter cast off its personality and exercise
unbridled power unfettered by the requirements
of Article 14 in the sphere of contractual matters and
claim to be governed therein only by private law
principles applicable to private individuals whose
rights flow only from the terms of the contract without
anything more? We have no hesitation in saying that
the personality of the State, requiring regulation of its
conduct in all spheres by requirements of Article 14,
does not undergo such a radical change after the
making of a contract merely because some
contractual rights accrue to the other party in addition.
It is not as if the requirements of Article 14 and
contractual obligations are alien concepts which
cannot co-exist. The Preamble of the Constitution of
India resolves to secure to all its citizens Justice,
social. economic and political; and Equality of status
and opportunity. Every State action must be aimed at
achieving this goal. Part IV of the Constitution
contains `Directives Principles of State Policy which
are fundamental in the governance of the country and
are aimed at securing social and economic freedoms
by appropriate State action which is complementary
to individual fundamental rights guaranteed in Part III
for protection against excesses of State action to
realise the vision in the Preamble. This being the
philosophy of the Constitution, can it be said that it
contemplates exclusion of Article-14 non-arbitrariness
which is basic to rule of law - from State actions in
contractual field when all actions of the State are
meant for public good and expected to be fair and
just? We have no doubt that the Constitution does not
envisage or permit unfairness or unreasonableness in
State actions in any sphere of its activity contrary to
the professed ideals in the Preamble. In our opinion. it
would be alien to the Constitutional Scheme to accept
the argument of exclusion of Article 14 in contractual
matters. The scope and permissible grounds of
judicial review in such matters and the relief which
may be available are different matters but that does
not justify the view of its total exclusion. This is more
so when the modern trend is also to examine the
unreasonableness of a term in such contracts where
the bargaining power is unequal so that these are not
negotiated contracts but standard form contracts
between unequals.
There is an obvious difference in the contracts
between private parties and contracts to which the
State is a party, Private parties are concerned only
with their personal interest whereas the State while
exercising its powers and discharging its functions,
acts indubitably, as is expected of it, for public good
and in public interest. The impact of every State
action is also on public interest. This factor alone is
sufficient to import at least the minimal requirements
of public law obligations and impress with this
character the contracts made by the State or its
instrumentality. It is a different matter that the scope
of judicial review in respect of disputes failing within
the domain of contractual obligations may be more
limited and in doubtful cases the parties may be
relegated to adjudication of their rights by resort to
remedies provided for adjudication of purely
contractual disputes. However, to the extent,
challenge is made on the ground of violation of Article
14 by alleging that the impugned act is arbitrary,
unfair or unreasonable, the fact that the dispute also
fails within the domain of contractual obligations
would not relieve the State of its obligation to comply
with the basic requirements of Article 14. To this
extent, the obligation is of a public character
invariably in every case irrespective of there being
any other right or obligation in addition thereto. An
additional contractual obligation cannot divest the
claimant of the guarantee under Article 14 of non-
arbitrariness at the hands of the State in any of its
actions.
Thus, in a case like the present, if it is shown that the
impugned State action is arbitrary and, therefore,
violative of Article 14 of the Constitution, there can be
no impediment in striking down the impugned act
irrespective of the question whether an additional
right, contractual or statutory, if any, is also available
to the aggrieved persons.
The State cannot be attributed the sprit personality of
Dr. Jekyll and Mr. Hyde in the contractual field so as
to impress on it all the characteristics of the State at
the threshold while making a contract requiring it to
fulfil the obligation of Article 14 of the Constitution and
thereafter permitting it to cast off its garb of State to
adorn the new robe of a private body during the
subsistence of the con- tract enabling it to act
arbitrarily subject only to the contractual obligations
and remedies flowing from it. It is really the nature of
its personality as State which is significant and must
characterize all its actions, in what- ever field, and not
the nature of function, contractual or otherwise, which
is decisive of the nature of scrutiny permitted for
examining the validity of its act. The requirement
of Article 14 being the duty to act fairly, justly and
reasonably, there is nothing which militates against
the concept of requiring the State always to so act,
even in contractual matters. There is a basic
difference between the acts of the State which must
invariably be in public interest and those of a private
individual, engaged in similar activities, being
primarily for personal gain, which may or may not
promote public interest. Viewed in this manner, in
which we find no conceptual difficulty or anachronism,
we find no reason why the requirement of Article
14 should not extend even in the sphere of
contractual matters for regulating the conduct of the
State activity.
...Unlike a private party whose acts uninformed by
reason and influenced by personal predilections in
contractual matters may result in adverse
consequences to it alone without affecting the public
interest, any such act of the State or a public body
even in this field would adversely affect the public
interest. Every holder of a public office by virtue of
which he acts on behalf of the State or public body is
ultimately accountable to the people in whom the
sovereignty vests. As such, all powers so vested in
him are meant to be exercised for public good and
promoting the public interest. This is equally true of all
actions even in the field of contract. Thus, every
holder of a public office is a trustee whose highest
duty is to the people of the country and, therefore,
every act of the holder of a public office, irrespective
of the label classifying that act, is in discharge of
public duty meant ultimately for public good. With the
diversification of State activity in a Welfare State
requiring the State to discharge its wide-ranging
functions even through its several instrumentalities,
which requires entering into contracts also, it would
be unreal and not pragmatic, apart from being
unjustified to exclude contractual matters from the
sphere of State actions required to be non-arbitrary
and justified on the touchstone of Article 14.
Even assuming that it is necessary to import the
concept of presence of some public element in a
State action to attract Article 14 and permit judicial
review, we have no hesitation in saying that the
ultimate impact of all actions of the State or a public
body being undoubtedly on public interest, the
requisite public element for this purpose is present
also in contractual matters. We, therefore, find it
difficult and unrealistic to exclude the State actions in
contractual matters, after the contract has been
made, from the purview of judicial review to test its
validity on the anvil of Article 14.
....It is now too well-settled that every State action, in
order to survive, must not be susceptible to the vice of
arbitrariness which is the crux of Article 14 of the
Constitution and basic to the rule of law, the system
which governs us. Arbitrariness is the very negation of
the rule of law. Satisfaction of this basic tests in every
State action is sine qua lion tO its validity and in this
respect, the State cannot claim comparison with a
private individual even in the field of contract. This
distinction between the State and a private individual
in the field of contract has to be borne in the mind."
(ix) In its recent decision in the case of Uttar
Pradesh Power Transmission Corporation Limited v.
C.G Power and Industrial Solutions and Limited and
Anr - 2021 SCC OnLine SC 383, the Apex Court reiterated
that a writ petition is maintainable in contractual matters
even if the contract contains an arbitration
clause/agreement. Similarly, in the case of Unitech
Limited & Ors v. Telangana State Industrial
Infrastructure Corporation & Ors - 2021 SCC OnLine SC
99, it was held as under:
" However, to clear the ground, it is necessary to
postulate that recourse to the jurisdiction under Article
226 of the Constitution is not excluded altogether in a
contractual matter. A public law remedy is available
for enforcing legal rights subject to well-settled
parameters. 33 A two judge Bench of this Court
in ABL International Ltd. v. Export Credit Guarantee
Corporation of India7 [ABL International] analyzed a
long line of precedent of this Court8 to conclude that
writs under Article 226 are maintainable for asserting
contractual rights against the state, or its
instrumentalities, as defined under Article 12 of the
Indian Constitution.....
This exposition has been followed by this Court, and
has been adopted by three- judge Bench decisions of
this Court in State of UP v. Sudhir
Kumar9 and Popatrao Vynkatrao Patil v. State of
Maharashtra10. The decision in ABL International,
cautions that the plenary power under Article
226 must be used with circumspection when other
remedies have been provided by the contract. But as
a statement of principle, the jurisdiction under Article
226 is not excluded in contractual matters. (2004) 3
SCC 553 K.N. Guruswamy v. State of Mysore, AIR
1954 SC 592; Gujarat State Financial Corporation. v.
Lotus Hotels (P) Ltd, (1983) 3 SCC 379; Gunwant
Kaur v. Municipal Committee, Bhatinda, (1969) 3 SCC
769 2020 Scconline SC 847 Civil Appeal 1600 of
2000 (Supreme Court of India) PART E Article
23.1 of the Development Agreement in the present
case mandates the parties to resolve their disputes
through an arbitration. However, the presence of an
arbitration clause within a contract between a state
instrumentality and a private party has not acted as
an absolute bar to availing remedies under law. If the
state instrumentality violates its constitutional
mandate under Article 14 to act fairly and reasonably,
relief under the plenary powers of the Article 226 of
the Constitution would lie. This principle was
recognized in ABL International......Therefore, while
exercising its jurisdiction under Article 226, the Court
is entitled to enquire into whether the action of the
State or its instrumentalities is arbitrary or unfair and
in consequence, in violation of Article 14. The
jurisdiction under Article 226 is a valuable
constitutional safeguard against an arbitrary exercise
of state Harbanslal Sahnia v. Indian Oil Corporation
Ltd., (2003) 2 SCC 107; Ram Barai Singh & Co. v.
State of Bihar & Ors., (2015) 13 SCC 592 power or a
misuse of authority. In determining as to whether the
jurisdiction should be exercised in a contractual
dispute, the Court must, undoubtedly eschew,
disputed questions of fact which would depend upon
an evidentiary determination requiring a trial. But
equally, it is well-settled that the jurisdiction
under Article 226 cannot be ousted only on the basis
that the dispute pertains to the contractual arena. This
is for the simple reason that the State and its
instrumentalities are not exempt from the duty to act
fairly merely because in their business dealings they
have entered into the realm of contract. Similarly, the
presence of an arbitration clause does not oust the
jurisdiction under Article 226 in all cases though, it still
needs to be decided from case to case as to whether
recourse to a public law remedy can justifiably be
invoked.
(x) In the instant case, the material on record clearly
discloses that Respondent No.2-ESCOMs have not fulfilled,
discharged or honoured the obligations and duties cast
upon them under the PPAs; on the other hand, during the
pendency of the present petitions, some of the ESCOMs
have paid certain amounts towards the dues claimed by the
petitioners under their invoices. So also, the ESCOMs have
not raised any dispute with regard to their liability to make
payment or the entitlement of the petitioners under the
invoices in addition to not disputing their liability to open
revolving and irrevocable letters of credit in favour of the
petitioners as required under the PPAs. The material on
record and the rival contentions do not give rise to
disputed/complicated questions of fact or contentious
issues. As held by the Apex Court, the failure on the part of
the Respondent No.2-ESCOMs to fulfil, discharge and
honour their duties, obligations and liabilities under the
PPAs clearly establishes that the Respondent No.2-
ESCOMs are acting in an arbitrary, illegal, unfair,
unreasonable, unjust and irrational manner which is
violative of Article 14 of the Constitution of India warranting
interference by this Court in the present petitions. Under
these circumstances, in the facts of the case on hand, I am
of the considered opinion that the petitions are
maintainable.
Accordingly, Point No.1 is answered in favour of the
Petitioners by holding that the present petitions are
maintainable before this Court in the exercise of its
jurisdiction under Article 226 of the Constitution of India.
Re: Point No.2
(i) This point relates to maintainability of the petitions
in the light of dispute redressal mechanism contained in the
PPAs entered into between the petitioners and the
Respondent No.2-ESCOMs. As stated supra, Clause No.18
of the PPAs provide for resolution of disputes as per the
procedure provided therein. A perusal of Clause
No.18(Solar) and Clause No.10(Wind) of the PPAs will
indicate that the petitioners and the Respondent No.2-
ESCOMs have agreed to resolve disputes arising out of the
PPAs by amicable discussions/talks failing which the
parties would have to seek resolution of their disputes
before the KERC by way of arbitration or adjudication. It is
the contention of the ESCOMs that in view of the dispute
resolution mechanism contained in the PPAs, the present
petitions are not maintainable before this Court.
(ii) In this context, it is necessary to state that a
perusal of Clause No.18 of the PPAs will indicate that in
order to invoke the said clause, it is absolutely essential for
an actual dispute to exist between the petitioners and the
Respondent No.2-ESCOMs; in other words, existence of a
dispute is a sine-qua-non for the petitioners or the
ESCOMs to invoke the said clause and seek resolution as
per the procedure provided under Clause No.18(Solar) and
Clause No.10(Wind); it follows there from that in the
absence of any dispute, Clause No.18(Solar) and Clause
No.10(Wind) of the PPAs would not get attracted nor
become applicable and consequently, the question of the
parties invoking the said clause would not arise.
(iii) As stated supra, the material on record indicates
that though procedure prescribed in Clauses 10 and 13 of
the PPAs was followed and joint measurement/meter
readings were recorded in the presence of both petitioners
and Respondent No.2-ESCOMs pursuant to which the
petitioners had raised the subject invoices/bills and called
upon the Respondent No.2 to make payment and open
letters of credit, the Respondent No.2 did not fulfil,
discharge or comply with their contractual obligations and
duties under the PPAs; so also, the Respondent No.2 did
not raise or put forth any dispute with regard to any of the
invoices/bills as required in the aforesaid clauses and on
the other hand, the Respondent No.2 has made certain
payments to the petitioners, that too even after filing of the
present petitions. To put it differently, so long as the
Respondent No.2 did not raise any dispute with regard to
the bills/invoices of the petitioners or the liability of the
Respondent No.2 to make payment to the petitioners,
Clause No.18(Solar) and Clause No.10(Wind) of the PPAs
which provides for a dispute redressal mechanism neither
gets attracted nor is the said clause applicable/invocable by
the petitioner to seek redressal of their grievances. Under
these circumstances, in the absence of any dispute raised
by the Respondent No.2 with regard to any of the amounts
payable to the petitioners under the PPAs, it cannot be said
that the present petitions are not maintainable.
(iv) As stated supra, before either party has to take
steps to seek recourse to the dispute redressal mechanism
provided in the PPAs, it is essential that there exists a
dispute which requires to be resolved; the said dispute
redressal mechanism provides for resolution of disputes by
way of amicable settlement/adjudication/arbitration, as the
case may be, in accordance with the aforesaid Clause
No.18(Solar) and Clause No.10(Wind). It cannot be
gainsaid that dispute resolution by way of amicable
settlement/adjudication/arbitration presupposes existence
of a dispute raised by the Respondent No.2-ESCOMs. In
the case of Major (Retd) Inder Singh Rekhi v. Delhi
Development Authority (1988) 2 SCC 338, the Apex
Court has held that existence of a dispute necessarily
requires an assertion of claim by one party and the denial
of the claim by the other party; in the instant case, in the
absence of any dispute between the petitioner and
Respondent No.2 with regard to the PPAs, the contention
of the Respondent No.2 that the petitions are not
maintainable in view of the dispute resolution mechanism
contained in the PPAs is clearly devoid of merit.
Accordingly, Point No.2 is also answered in favour of
the petitioners by holding that the present petitions are
maintainable before this Court in the exercise of its
extraordinary jurisdiction under Article 226 of the
Constitution of India.
Re: Point No.3
(i) The Respondent No.2-ESCOMs have contended
that the petitions are not maintainable in view of the equally
efficacious and alternative remedy available to the
petitioners under Section 86(1)(f) of the Electricity Act,
2003. In order to appreciate this contention, it is necessary
to extract the said provision which reads as under:
"86. Functions of State Commission -
(1) The State Commission shall discharge the
following functions, namely:
(a) xxxxxxxxx
(b) xxxxxxxxx
(c) xxxxxxxxx
(d) xxxxxxxxx
(e) xxxxxxxx
(f) adjudicate upon the disputes between the
licensees and generating companies and to refer
any dispute for arbitration;"
(ii) Reliance is placed upon the aforesaid provision
by the Respondent No.2-ESCOMs in order to contend that
in the light of the remedy available to the petitioners to seek
redressal of their grievances before the KERC as provided
under Section 86(1)(f), the present petitions are not
maintainable. This contention urged on behalf of the
ESCOMs also completely ignores the specific usage of the
word, "dispute" in Section 86(1)(f); recourse to the remedy
available under this provision also presupposes existence
of a dispute between petitioner and the ESCOMs and in the
absence of any dispute in relation to the PPAs, the
question of the petitioner taking recourse to remedies of
adjudication or reference to arbitration by the KERC would
not arise.
(iii) A plain reading of Section 86(1)(f) will indicate
that in order to invoke the said provision, it is absolutely
essential for an actual dispute to exist between the
petitioners and the Respondent No.2-ESCOMs; in other
words, existence of a dispute is a sine-qua-non for the
petitioners to invoke the said provision and seek redressal
of their grievances; it follows there from that in the absence
of any dispute, Section 86(1)(f) would neither get attracted
nor become applicable in the facts of the instant case.
(iv) As stated supra, the material on record indicates
that though procedure prescribed in Clauses 10 and 13 of
the PPAs was followed and joint measurement/meter
readings were recorded in the presence of both petitioners
and Respondent No.2-ESCOMs pursuant to which the
petitioners had raised the subject invoices/bills and called
upon the Respondent No.2 to make payment and open
letters of credit, the Respondent No.2 did not fulfil,
discharge or comply with their contractual obligations and
duties under the PPAs; so also, the Respondent No.2 did
not raise or put forth any dispute with regard to any of the
invoices/bills as required in the aforesaid clauses and on
the other hand, the Respondent No.2 has made certain
payments to the petitioners, that too even after filing of the
present petitions. To put it differently, so long as the
Respondent No.2 did not raise any dispute with regard to
the bills/invoices of the petitioners or the liability of the
Respondent No.2 to make payment to the petitioners,
Section 86(1)(f) neither gets attracted nor is the said
provision applicable/invocable by the petitioner to seek
redressal of their grievances. Under these circumstances,
in the absence of any dispute raised by the Respondent
No.2 with regard to any of the amounts payable to the
petitioners under the PPAs, it cannot be said that the
present petitions are not maintainable.
(v) The judgement of the Hon'ble Supreme Court in
the case of Gujarat Urja Vikas Nigam Limited v. Essar
Power Ltd - (2008) 4 SCC 755 relied upon by the
Respondent No.2 pertains to the powers of the State
Electricity Regulatory Commission under Section 86 (1) of
the Electricity Act to refer disputes to arbitration. So also,
the judgement of the Apex Court in the case of State of
Gujarat v. Utility Users Welfare Association -(2018) 6
SCC 21 pertains to the nature of the functions of the State
Electricity Regulatory Commissions and the need for a
judicial member to possess legal qualifications and to
mandatorily be part of the State Electricity Regulatory
Commissions, to ensure that the adjudicatory functions of
the State Electricity Regulatory Commissions are duly
discharged; both these judgments are clearly inapplicable
to the facts of the instant case given the fact that no dispute
has arisen or been raised between the petitioner and
Respondent No.2-ESCOMs with regard their obligations
and liability to honour the terms and conditions of the
PPAs.
(vi) Similarly, the decision in the Gujarat Urja Vikas
Nigam Limited v. Solar Semiconductor Power
Company (India) Pvt Ltd. -(2017) 16 SCC 498 is also
inapplicable to the facts of the present case, as this
judgement pertains to the scope of inherent powers of the
State Commissions and does not limit the powers of this
Court under Article 226 of the Constitution of India. The
other judgements cited by the Respondent No.2 are
judgements of the Appellate Tribunal for Electricity which
set out the powers of the KERC, and cannot have a bearing
on the writ jurisdiction of this Court.
(vii) As stated supra, before either party has to take
steps to seek recourse to Section 86(1)(f), it is essential
that there exists a dispute which requires to be resolved;
the said provision provides for resolution of disputes by way
of adjudication/arbitration, as the case may be. As held by
the Apex Court in Major (Retd) Inder Singh Rekhi's
case(supra), existence of a dispute necessarily requires an
assertion of claim by one party and the denial of the claim
by the other party; in the instant case, in the absence of
any dispute between the petitioner and Respondent No.2
with regard to the PPAs, the contention of the Respondent
No.2 that the petitions are not maintainable in view of the
Section 86(1)(f) of the Electricity Act, 2003 is clearly devoid
of merit.
Accordingly, Point No.3 is also answered in favour of
the petitioners by holding that the present petitions are
maintainable before this Court in the exercise of its
extraordinary jurisdiction under Article 226 of the
Constitution of India.
Re: Point No.4
(i) The last question that arises for consideration is
with regard to the relief's sought for by the petitioners and
the orders to be passed/directions to be issued in the
petitions. As stated supra, petitioners seek directions to the
Respondent No.2-ESCOMs to pay the outstanding dues
covered under the subject bills/invoices to the petitioners as
well as continue to pay all the amounts in respect of the
bills/invoices raised by the petitioners in future also as per
the PPAs in addition to directions to be issued to open
irrevocable and revolving letters of credit in favour of the
petitioners towards the payments/dues payable by the
ESCOMs. In this context, learned Senior Counsel for the
petitioners submitted that in the interest of all power
generating companies as well as the public at large, it is
essential that general guidelines and suitable/appropriate
directions are issued to all the ESCOMs in the State of
Karnataka to honour, discharge and fulfil their obligations
and duties under the PPAs.
(ii) The material on record indicates that Respondent
No.2's failure to make payments to the Petitioners is a
consistent pattern which has led to a serious impediment
for the Petitioners to carry on their work. Respondent
No.2's failure to make payments in a timely manner has
serious ramifications on the Petitioners' ability to continue
to generate energy, which, needless to say, has a drastic
and large-scale impact on the generation and supply of
renewable energy. It cannot also be gainsaid that
Respondent No.2 collects and receives monies from
consumers for the supply of the energy generated by the
Petitioners and other power generating companies. It is
therefore in public interest and in the interest of preserving
energy reforms that necessary directions are to be issued
to Respondent No.2 to abide by the terms of the PPAs
thereby preventing it from casting aside its solemn
obligations under statutory contracts.
(iii) It is pertinent to point out that the Ministry of New
and Renewable Energy ("MNRE"), granted must-run status
to renewable energy projects vide Office Memorandum,
dated 1.4.2020. The MNRE, in its O.M., dated 1.4.2020,
further stated that the renewable energy generators were to
be paid their dues on time regardless of the Moratorium
granted by the Power Ministry to ESCOMs/Distribution
Licensees in the wake of Covid-19. The MNRE also issued
a letter, dated 6.4.2020, directing the ESCOMs/Distribution
Licensees pan India to open Letters of Credit as per the
terms of the PPA as this is a pan India issue.
(iv) The conduct of the Respondent No. 2 is also
directly contrary to Section 86(1) (e) which requires the
KERC to promote generation of electricity through
renewable sources of energy. The Respondent No.2 has a
duty to act in the object and spirit of Section 86(1) (e) and
aid the function of the KERC in promoting generation of
energy from renewable sources. In Unitech Limited's
case(supra), the Apex Court has also held that investors
who respond to the representations held out by the State
while investing in public projects are legitimately entitled to
assert that the representations must be fulfilled and to
enforce compliance with duties which have been
contractually assumed. It is therefore clear that appropriate
directions are to be issued to the ESCOMs to honour all
their obligations under the PPAs.
(v) Learned counsel for the ESCOMs submitted that
huge amounts due to the ESCOMs have not been paid by
Rural Local Bodies, Urban Local Bodies, State Government
dues, subsidy dues from farmers etc., and this has resulted
in the ESCOMs not being in a position to pay the dues to
the power generating companies including the Petitioners
on time. It is also submitted that in respect of some of the
petitioners, the ESCOMs have either already opened letters
of credit or renewed existing letters of credit; so also, the
ESCOMs have made payments to some of the petitioners
during the pendency of these petitions. Further, learned
counsel for the ESCOMs have also filed various Memos
along with documents in this regard. The said Memos,
documents and submissions of the learned counsel for the
ESCOMs are placed on record.
(vi) In view of the aforesaid facts and circumstances,
I am of the considered opinion that the petitioners are
entitled to the relief's sought for by them in the petitions and
consequently, Respondent No.2-ESCOMs are to be
directed to honour and discharge all their obligations and
liabilities under the PPAs including making payment of the
outstanding dues to the petitioners and to continue to make
timely and prompt payments henceforth in the future also
in; so also, the ESCOMs are to be directed to open / renew
irrevocable and revolving monthly letters of credit in favour
of the petitioners so as to ensure prompt, timely and regular
payments being made to the petitioners. Further, general
guidelines are also to be issued to all the ESCOMs in the
State of Karnataka to honour and discharge all their
obligations and liabilities under the PPAs entered into with
anyone including making payments, opening / renewing
letters of credit etc., in favour of all the power generators.
Accordingly, Point No.4 is answered in favour of the
petitioners by holding that the petitioners are entitled to the
relief's sought for in the petitions and necessary directions
and guidelines are to be issued to the ESCOMs.
9. In the result, I pass the following:
ORDER
(i) All the petitions are hereby allowed;
(ii) The Respondent No.2-ESCOMs in all the
petitions are directed to honour, discharge and fulfil their
duties, obligations and liabilities under the Power Purchase
Agreements(PPAs) entered into between the Petitioners
and Respondent No.2-ESCOMs;
(iii) The Respondent No.2-ESCOMs in all the
petitions are directed to pay and clear all the outstanding
dues payable by the ESCOMs in favour of the petitioners in
relation to all the bills/invoices of the petitioners as on date;
(iv) The Respondent No.2-ESCOMs in all the
petitions are also hereby directed to henceforth make
prompt, regular and timely payments in favour of the
petitioners without any delay in relation to all future
bills/invoices also;
(v) The Respondent No.2-ESCOMs in all the
petitions are also hereby directed to forthwith open / renew
monthly irrevocable letters of credit in terms of the PPAs in
favour of the petitioners for the purpose of enabling and
ensuring payments of all amounts due to the petitioners
from the ESCOMs;
GENERAL GUIDELINES TO BE ISSUED TO ALL
ELECTRICITY SUPPLY COMPANIES(ESCOMS) AND
THE STATE OF KARNATAKA
(i) All ESCOMs are directed to honour, discharge and
fulfil their duties, obligations and liabilities under the Power
Purchase Agreements(PPAs) entered into between the
Power Generators and ESCOMs;
(ii) All ESCOMs are directed to henceforth make
prompt, regular and timely payments in favour of the power
generators without any delay in relation to all future
bills/invoices of the power generators;
(iii) All ESCOMs are also hereby directed to forthwith
open / renew monthly irrevocable letters of credit in terms
of the PPAs in favour of the power generators for the
purpose of enabling and ensuring payments of all amounts
due to the power generators from the ESCOMs;
(iv) Registry is directed to send a copy of this order to
the following persons:-
a) The Karnataka Electricity Regulatory Commission,
Bengaluru.
b) All Electricity Supply Companies (ESCOMs) in
the entire State of Karnataka.
c) The Principal Secretary, Department of
Energy, State of Karnataka.
d) The Chief Secretary, State of Karnataka.
SD/-
JUDGE
Srl.
