Karnataka High Court
Aadyaarush Power Projects Pvt . ... vs State Of Karnataka on 20 September, 2021
Author: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2021 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.52028/2018 (GM-KEB)
C/W
WRIT PETITION No.57898/2017 (GM-KEB)
WRIT PETITION No.30716/2018 (GM-KEB)
WRIT PETITION No.7358/2020 (GM-KEB)
WRIT PETITION No.7675/2020 (GM-KEB)
WRIT PETITION No.7698/2020 (GM-KEB)
WRIT PETITION No.7724/2020 (GM-KEB)
WRIT PETITION No.7782/2020 (GM-KEB)
WRIT PETITION No.7930/2020 (GM-KEB)
WRIT PETITION No.12611/2020 (GM-KEB)
WRIT PETITION No.12637/2020 (GM-KEB)
WRIT PETITION No.12644/2020 (GM-KEB)
IN WRIT PETITION No.52028/2018
BETWEEN:
AADYAARUSH POWER PROJECTS PVT. LTD.,
A COMPANY REGISTERED UNDER COMPANIES ACT,2013,
HAVING ITS REGISTERED OFFICE AT 139/12,
5TH MAIN ROAD, CHAMRAJPET,
BENGALURU - 560 018
REPRESENTED BY ITS DIRECTOR,
MR. AMARTHYA RAJASHEKARAPPA.
... PETITIONER
(BY SRI MANMOHAN P.N., ADVOCATE )
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF ENERGY,
2
VIKASA SOUDHA,
DR.B.R.AMBEDKAR STREET,
BENGALURU - 560 001
REPRESENTED BY ITS
CHIEF SECRETARY.
2. BANGALORE ELECTRICITY SUPPLY
COMPANY LTD.,
A COMPANY REGISTERED UNDER
COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT
K.R.ROAD, BENGALURU - 560 001
REPRESENTED BY ITS
MANAGING DIRECTOR.
3. KARNATAKA RENEWABLE ENERGY
DEVELOPMENT LTD.,
A COMPANY REGISTERED UNDER
COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE
AT NO.39, SHANTHIGRUHA,
BHARATH SCOUTS & GUIDES BUILDING,
PALACE ROAD, GANDHI NAGAR,
BENGALURU - 560 001
REPRESENTED BY ITS
MANAGING DIRECTOR.
4. KARNATAKA POWER
TRANSMISSION CORPORATION LTD.,
A COMPANY REGISTERED UNDER
COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE
AT KAVERI BHAVAN, K.G.ROAD,
BENGALURU - 560 009
REPRESENTED BY ITS
MANAGING DIRECTOR.
5. KARNATAKA ELECTRICITY
REGULATORY COMMISSION
NO.16, C-1, MILLERS TANK BED AREA,
3
VASANTH NAGAR,
BENGALURU - 560 052
REPRESENTED BY ITS SECRETARY.
... RESPONDENTS
(BY SMT.M.C.NAGASHREE, AGA FOR R1;
SRI S.SRIRANGA, ADVOCATE FOR R2;
SRI B.N.PRAKASH, ADVOCATE FOR R5;
NOTICE TO R3 & 4 DISPENSED WITH VIDE ORDER
DATED 06/12/2018)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE A WRIT OF CERTIORARY AND QUASH THE
COMMUNICATION DATED 16.3.2017 ISSUED BY R-5 AT
ANNEX-S; ISSUE A WRIT OF CERTIORARY AND QUASH
THE COMMUNICATION DATED 05.04.2017 ISSUED BY R-5
AT ANNEX-T;
IN WRIT PETITION No.57898/2017
BETWEEN:
1. SRI H.V.THIMMAIAH
S/O LATE VEERAPPA
AGED ABOUT 72 YEARS
NO.76, HARIABBE, HIRIYUR TALUK,
CHITRADURGA DISTRICT - 577 598.
2. M/S B.G.SUN SOLAR HIRIYUR PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT
NO.368, 2ND MAIN, BEML LAYOUT
1ST STAGE, BASAVESHWARANAGAR
BENGALURU - 560 079
REPRESENTED BY ITS DIRECTOR
MR.V.G.ANGADI.
... PETITIONERS
(BY SRI SUNIL P.P., ADVOCATE)
4
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY
THE ADDITIONAL CHIEF SECRETARY
ENERGY DEPARTMENT
VIKASASOUDHA,
BENGALURU - 560 001.
2. KARNATAKA ELECTRICITY REGULATORY
COMMISSION
6TH & 7TH FLOOR, MAHALAKSHMI CHAMBERS
NO.9/2. M.G.ROAD
BENGALURU - 560 001
REPRESENTED BY ITS SECRETARY.
3. THE KARNATAKA RENEWABLE ENERGY
DEPARTMENT LTD.,
NO.39, "SHANTHIGRUHA"
BHARATH SCOUTS &
GUIDES BUILDING
OPP.: THE CHIEF
POST MASTER GENERAL OFFICE
PALACE ROAD,
BENGALURU - 560 001
REPRESENTED BY THIS
MANAGING DIRECTOR.
4. BENGALURU ELECTRICITY SUPPLY
COMPANY LIMITED,
A COMPANY REGISTERED
UNDER THE PROVISIONS OF
COMPANIES ACT, 1956 HAVING ITS
REGISTERED OFFICE AT K.R.CIRCLE ,
BENGALURU - 560 001
REPRESENTED BY ITS MANAGING DIRECTOR.
5. THE GENERAL MANAGER (ELE)
POWER PURCHASE, BESCOM
5
K.R.CIRCLE
BENGALURU - 560 001.
6. THE CHIEF ENGINEER ELECTY.
TRANSMISSION ZONE, KPTCL
SIDDAGANGA COMPLEX , BH ROAD
TUMAKURU - 527 107.
7. THE EXECUTIVE ENGINEER
220 KV SRS, KPTCL,
HIRIYUR - 577 598.
... RESPONDENTS
(BY SMT.M.C.NAGASHREE, AGA FOR R1;
SRI B.N.PRAKASH, ADVOCATE FOR R2;
SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;
SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R4, R6 & 7;
R-5 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE COMMUNICATION/LETTER DTD 07.07.2017
AT ANNX-Z, ISSUED BY THE R-2; QUASH THE
COMMUNICATION/LETTER DTD 01.08.2017, ISSUED BY
THE R-1 VIDE ANNEXURE-Z1.
IN WRIT PETITION No.30716/2018
BETWEEN:
M/S S.G.ARAKERI SOLAR POWER
PRIVATE LIMITED
HAVING ITS REGISTERED
OFFICE AT:NO.658/8, 2ND FLOOR,
1ST "C" MAIN ROAD,
40TH CROSS, 8TH BLOCK,
JAYANAGARA, BENGALURU - 560 082
REPRESENTED BY ITS DIRECTOR
SRI ISHWAR HEGDE.
... PETITIONER
6
(BY SRI GANAPATI BHAT VAJRALLI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS CHIEF SECRETARY,
ROOM NO.320,3RD FLOOR,
VIDHANA SOUDHA,
DR AMBEDKAR VEEDI,
BENGALURU-560 001
2. THE ADDITIONAL CHIEF SECRETARY
GOVERNMENT OF KARNATAKA,
ENERGY DEPARTMENT,
ROOM NO.236, 2ND FLOOR,
VIKASA SOUDHA,
DR AMBEDKAR VEEDI
BENGALURU - 560 001.
3. KARNATAKA ELECTRICITY
REGULATORY COMMISSION
NO.16, C-1, MILLERS BED AREA,
VASANTHNAGAR,
BENGALURU - 560 052
REPRESENTED BY ITS CHAIRMAN.
4. M/S HUBLI ELECTRICITY SUPPLY
COMPANY LIMITED (HESCOM)
OFFICE AT:NAVANAGAR, P.B.ROAD,
HUBBALLI - 580 025
REPRESENTED BY ITS
MANAGING DIRECTOR.
5. M/S KARNATAKA RENEWABLE ENERGY
DEVELOPMENT LIMITED,
NO.39,"SHANTHIGRUHA"
BHARATH SCOUTS AND GUIDES
BUILDING, PALACE ROAD,
BENGALURU - 560 003.
... RESPONDENTS
7
(BY SMT.M.C.NAGASHREE, AGA FOR R1 AND R2;
SRI B.N.PRAKASH, ADVOCATE FOR R3;
SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R4;
SRI MURUGESH V.CHARATI, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED DIRECTION DATED 05.04.2017,
ISSUED BY THE 3RD RESPONDENT, AS PER ANNEXURE-Q
AND LETTER DATED 07.07.2017, ISSUED BY THE 3RD
RESPONDENT AS PER ANNEXURE-T AND ETC.,
IN WRIT PETITION No.7358/2020
BETWEEN:
M/S SAAKESHA SOLAR ENERGY PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT
NO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,
40TH CROSS, 8TH BLOCK, JAYANAGAR,
BENGALURU - 560 082,
REPRESENTED BY ITS DIRECTOR,
SRI ISHWAR HEGDE.
... PETITIONER
(BY SRI GANAPATI BHAT VAJRALLI, ADVOCATE)
AND:
1. M/S BANGALORE ELECTRICITY SUPPLY
COMPANY LIMITED (BESCOM)
OFFICE AT K.R.CIRCLE,
BENGALURU - 560 001,
REPRESENTED BY ITS
MANAGING DIRECTOR.
2. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
CAVERI BHAVAN,
BENGALURU - 560 001,
8
REPRESENTED BY ITS
MANAGING DIRECTOR.
3. THE KREDL
SHANTHI GRUHA, NO.39,
BHARATH SCOUTS AND
GUIDES BUILDING,
OPPOSITE THE CHIEF
POST MASTER GENERAL OFFICE,
PALACE ROAD, BENGALURU - 560 001.
4. THE DEPUTY COMMISSIONER
DISTRICT ADMINISTRATIVE BHAVAN,
SHIDLAGATTA ROAD,
CHIKKABALLAPUR - 562 101.
5. KARNATAKA ELECTRICITY
REGULATORY COMMISSION
NO.16, C-1, MILLARS BED AREA,
VASANTHNAGAR,
BENGALURU - 560 052,
REPRESENTED BY ITS CHAIRMAN.
... RESPONDENTS
(BY SRI S.SRIRANGA, ADVOCATE FOR R1 AND R2;
SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;
SMT.M.C.NAGASHREE, AGA FOR R4;
SRI B.N.PRAKASH, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 30.08.2018 IN
O.P.NO.161/2017 PASSED BY THE R-5 AS PER
ANNEXURE-H AND ALLOW THE O.P.NO.161/2017 BY
GRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER
THE PPA AND ETC.,
9
IN WRIT PETITION No.7675/2020
BETWEEN:
M/S GAVI RANGA SOLARS PRIVATE LIMITED
HAVING ITS REGISTERED
OFFICE AT NO.658/8,
2ND FLOOR, F, 2ND 'C' MAIN ROAD,
40TH CROSS, 8TH BLOCK,
JAYANAGAR,
BENGALURU - 560 082,
REPRESENTED BY ITS DIRECTOR,
SRI ISHWAR HEGDE.
... PETITIONER
(BY SRI GANAPATHY BHAT VAJRALLI, ADVOCATE
(PHYSICAL HEARING))
AND:
1. M/S CHAMUNDESHWARI ELECTRICITY SUPPLY
CORPORATION LIMITED (CESC, MYSORE),
NO.29, VIJAYANAGAR 2ND STAGE,
HINKAL, MYSURU - 570 017
REPRESENTED BY ITS
GENERAL MANAGER (COMMERCIAL)
2. M/S BANGALORE ELECTRICITY SUPPLY
COMPANY LIMITED (BESCOM),
OFFICE AT: K.R.CIRCLE,
BENGALURU - 560 001,
REPRESENTED BY ITS
MANAGING DIRECTOR.
3. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
CAVERI BHAVAN,
BENGALURU - 560 001,
REPRESENTED BY ITS
MANAGING DIRECTOR.
10
4. THE KREDL
SHANTHI GRUHA, NO.39,
BHARATH SCOUTS AND
GUIDES BUILDING,
OPPOSITE THE CHIEF
POST MASTER GENERAL OFFICE,
PALACE ROAD, BENGALURU - 560 001
REPRESENTED BY
ITS MANAGING DIRECTOR.
5. KARNATAKA ELECTRICITY REGULATORY
COMMISSION
NO.16, C-1, MILLERS BED
AREA, VASANTHNAGAR,
BENGALURU-560 052,
REPRESENTED BY ITS CHAIRMAN.
6. THE DEPUTY COMMISSIONER
DISTRICT ADMINISTRATIVE BHAVAN,
SHIDLAGATTA ROAD,
CHIKKABALLAPUR-562101.
... RESPONDENTS
(BY SRI S.SRIRANGA, ADVOCATE FOR R1.
R2 & R3 ARE SERVED
SRI.MURUGESH V.CHARATI, ADVOCATE FOR R4;
SRI B.N.PRAKASH, ADVOCATE FOR R5;
SMT.M.C.NAGASHREE, AGA FOR R6 (PHYSICAL
HEARING))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DTD.28.8.2018 IN
O.P.NO.163/2017 PASSED BY THE R-5 AS PER
ANENXURE-H AND ALLOW THE O.P.NO.163/2017 BY
GRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER
THE PPA AND ETC.,
11
IN WRIT PETITION No.7698/2020
BETWEEN:
M/S LRK SOLAR POWER PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT
NO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,
40TH CROSS, 8TH BLOCK, JAYANAGAR,
BENGALURU - 560 082
REPRESENTED BY ITS DIRECTOR
SRI ISHWAR HEGDE.
... PETITIONER
(BY SRI GANAPATHI BHAT VAJRALLI, ADVOCATE)
AND:
1. M/S. BANGALORE ELECTRICITY SUPPLY
COMPANY LIMITED (BESCOM)
OFFICE AT K.R.CIRCLE,
BENGALURU - 560 001.
REPRESENTED BY ITS MANAGIR DIRECTOR
2. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
CAVERI BHAVAN, BENGALURU - 560 001
REPRESENTED BY ITS MANAGING DIRECTOR.
3. THE KREDL
SHANTHI GRUHA, NO.39,
BHARATH SCOUTS AND GUIDES BUILDING,
OPPOSITE THE CHIEF POST MASTER
GENERAL OFFICE,
PALACE ROAD, BENGALURU - 560 001.
4. THE DEPUTY COMMISSIONER
DISTRICT ADMINISTRATIVE BHAVAN,
SHIDLAGATTA ROAD,
CHIKKABALLAPUR - 562 101.
12
5. KARNATAKA ELECTRICITY REGULATORY
COMMISSION
NO.16, C-1, MILLERS BED AREA,
VASANTHNAGAR,
BENGALURU - 560 052
REPRESENTED BY ITS CHAIRMAN.
... RESPONDENTS
(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 & R2;
SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;
SMT.M.C.NAGASHREE, AGA FOR R4;
SRI B.N.PRAKSH, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 27.09.2018 IN
O.P.NO.165/2017 PASSED BY THE R-5 AS PER
ANNEXURE-H AND ALLOW THE O.P.NO.165/2017 BY
GRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER
THE PPA AND ETC.,
IN WRIT PETITION No.7724/2020
BETWEEN:
M/S MNR SOLAR ENERGY PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT
NO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,
40TH CROSS, 8TH BLOCK, JAYANAGAR,
BENGALURU - 560 082,
REPRESENTED BY ITS DIRECTOR,
SRI.ISHWAR HEGDE.
... PETITIONER
(BY SRI GANAPATI BHAT VAJRALLI, ADVOCATE)
AND:
1. M/S BANGALORE ELECTRICITY SUPPLY
COMPANY LIMITED (BESCOM)
13
OFFICE AT: K.R.CIRCLE,
BENGALURU - 560 001,
REPRESENTED BY ITS
MANAGING DIRECTOR.
2. KARNATAKA POWER
TRANSMISSION CORPORATION LIMITED
CAVERI BHAVAN,
BENGALURU - 560 001,
REPRESENTED BY ITS
MANAGING DIRECTOR.
3. THE KREDL
SHANTHI GRUHA, NO.39,
BHARATH SCOUTS AND
GUIDES BUILDING,
OPPOSITE THE CHIEF POST
MASTER GENERAL OFFICE,
PALACE ROAD, BENGALURU - 560 001.
4. THE DEPUTY COMMISSIONER
DISTRICT ADMINISTRATIVE BHAVAN,
SHIDLAGATTA ROAD,
CHIKKABALLAPUR - 562 101.
5. KARNATAKA ELECTRICITY
REGULATORY COMMISSION
NO.16, C-1, MILLERS BED AREA,
VASANTHNAGAR,
BENGALURU-560 052,
REPRESENTED BY ITS CHAIRMAN.
... RESPONDENTS
(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 AND R2;
SRI MURUGESH V.CHARATI, ADVOCATE FOR R3
SMT.M.C.NAGASHREE, AGA FOR R4;
SRI B.N.PRAKASH, ADVOCATE FOR R5)
14
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 21.08.2018 IN
O.P.NO.158/2017 PASSED BY THE R-5 AS PER
ANNEXURE-H AND ALLOW THE OP NO.158/2017 BY
GRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER
THE PPA AND ETC.,
IN WRIT PETITION No.7782/2020
BETWEEN:
M/S NADAGOUDA ENERGIES PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT
NO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,
40TH CROSS, 8TH BLOCK, JAYANAGAR,
BENGALURU - 560 082
REPRESENTED BY DIRECTOR
SRI ISHWAR HEGDE.
... PETITIONER
(BY SRI GANAPATI BHAT VAJRALLI, ADVOCATE)
AND:
1. M/S. HUBLI ELECTRICITY SUPPLY COMPANY
LIMITED (HESCOM)
OFFICE AT NAVANAGAR, HUBLI - 580 025
REPRESENTED BY ITS
MANAGING DIRECTOR.
2. KARNATAKA POWER TRANSMISSION CORPORATION
LIMITED
CAVERI BHAVAN, BENGALURU - 560 001
REP BY ITS MANAGING DIRECTOR
3. THE KREDL
SHANTHI GRUHA NO.39,
BHARATH SCOUTS AND GUIDES BUILDING,
OPPOSITE THE CHIEF POST MASTER GENERAL
OFFICE,
15
PALACE ROAD, BENGALURU - 560 001.
4. THE DEPUTY COMMISSIONER
DISTRICT ADMINISTRATIVE BHAVAN,
SHIDLAGATTA ROAD,
CHIKABALLAPUR-562 101
5. KARNATAKA ELECTRICITY REGULATORY
COMMISSION
NO.16, C-1, MILLERS BED AREA,
VASANTHNAGAR,
BENGALURU-560 052
REPRESENTED BY ITS
CHAIRMAN.
... RESPONDENTS
(BY SRI HOMESH KIRAN N., ADVOCATE FOR R1 AND R2;
SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;
SMT.M.C.NAGASHREE, AGA FOR R4;
R5 SERVED))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DTD.25.9.2018 IN
O.P.NO.155/2017 PASSED BY THE R-5 AS PER
ANNEXURE-H AND ALLOW THE O.P.NO.155/2017 BY
GRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER
THE PPA AND ETC.,
IN WRIT PETITION No.7930/2020
BETWEEN:
M/S CHOWDESHWARI SOLAR ENERGY
PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT
NO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,
40TH CROSS, 8TH BLOCK, JAYANAGAR,
BENGALURU - 560 082,
16
REPRESENTED BY ITS DIRECTOR,
SRI.ISHWAR HEGDE.
... PETITIONER
(BY SRI GANAPATHI BHAT VAJRALLI, ADVOCATE)
AND:
1. M/S BANGALORE ELECTRICITY SUPPLY
COMPANY LIMITED (BESCOM)
OFFICE AT: K.R.CIRCLE,
BENGALURU - 560 001,
REPRESENTED BY ITS
MANAGING DIRECTOR.
2. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
CAVERI BHAVAN, BENGALURU - 560 001,
REPRESENTED BY ITS
MANAGING DIRECTOR.
3. THE KREDL
SHANTHI GRUHA, NO.39,
BHARATH SCOUTS AND GUIDES BUILDING,
OPPOSITE THE CHIEF POST MASTER GENERAL
OFFICE, PALACE ROAD,
BENGALURU - 560 001.
REPRESENTED BY ITS MANAGING DIRECTOR.
4. THE DEPUTY COMMISSIONER
DISTRICT ADMINISTRATIVE BHAVAN,
SHIDLAGATTA ROAD,
CHIKKABALLAPUR - 562 101
5. KARNATAKA ELECTRICITY
REGULATORY COMMISSION
NO.16, C-1, MILLAES BED AREA,
VASANTHNAGAR,
BENGALURU-560 052,
REPRESENTED BY ITS CHAIRMAN
... RESPONDENTS
17
(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 AND R2;
SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;
SMT.M.C.NAGASHREE, AGA FOR R4;
SRI B.N.PRAKASH, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 28.08.2018 IN
O.P.NO.164/2017 PASSED BY THE R-5 AS PER
ANNEXURE-H AND ALLOW THE OP.NO.164/2017 BY
GRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER
THE PPA AND ETC.,
IN WRIT PETITION No.12611/2020
BETWEEN:
M/S. LPD SOLAR POWER PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT
NO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,
40TH CROSS, 8TH BLOCK, JAYANAGAR,
BENGALURU - 560 082
REPRESENTED BY ITS DIRECTOR
SRI.ISHWAR HEGDE.
... PETITIONER
(BY SRI GANAPATHI BHAT VAJRALLI, ADVOCATE)
AND:
1. M/S BANGALORE ELECTRICITY SUPPLY COMPANY
LIMITED (BESCOM)
OFFICE AT K.R.CIRCLE,
BENGALURU - 560 001
REPRESENTED BY ITS
MANAGIANG DIRECTOR.
2. KARNATAKA POWER TRANSMISSION
CORPORATION LTD.,
CAVERI BHAVAN, BENGALURU - 560 001
18
REPRESENTED BY
ITS MANAGING DIRECTOR.
3. THE KREDL
SHANTHI GRUHA, NO.39,
BHARATH SCOUTS AND GUIDES BUILDING,
OPPOSITE THE CHIEF POST MASTER
GENERAL OFFICE,
PALACE ROAD, BENGALURU - 560 001.
4. THE DEPUTY COMMISSIONER
DISTRICT ADMINISTRATIVE BHAVAN,
SHIDLAGATTA ROAD,
CHIKKABALLAPUR - 562 101.
5. KARNATAKA ELECTRICITY
REGULATORY COMMISSION
NO.16, C-1, MILLERS BED AREA,
VASANTHNAGAR,
BENGALURU - 560 052
REPRESENTED BY ITS CHAIRMAN.
... RESPONDENTS
(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 AND R2;
SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;
SMT.M.C.NAGASHREE, AGA FOR R4;
SRI B.N.PRAKASH, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 27.09.2018 IN
O.P.NO.166/2017 PASSED BY THE R-5 AS PER
ANNEXURE-H AND ALLOW THE O.P.NO.166/2017 BY
GRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER
THE PPA AND ETC.,
19
IN WRIT PETITION No.12637/2020
BETWEEN:
M/S SRI UGRAPPA SOLAR PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT
NO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,
40TH CROSS, 8TH BLOCK, JAYANAGAR,
BENGALURU - 560 082,
REPRESENTED BY ITS DIRECTOR,
SRI ISHWAR HEGDE.
... PETITIONER
(BY SRI GANAPATHI BHAT VAJRALLI, ADVOCATE)
AND:
1. M/S BANGALORE ELECTRICITY SUPPLY
COMPANY LIMITED (BESCOM)
OFFICE AT: K.R.CIRCLE,
BENGALURU - 560 001,
REPRESENTED BY ITS
MANAGING DIRECTOR.
2. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
CAVERI BHAVAN,
BENGALURU - 560 009,
REPRESENTED BY ITS
MANAGING DIRECTOR.
3. THE KREDL
SHANTHI GRUHA, NO.39,
BHARATH SCOUTS AND
GUIDES BUILDING,
OPPOSITE THE CHIEF
POST MASTER GENERAL OFFICE,
PALACE ROAD,
BENGALURU - 560 001.
20
4. DEPUTY COMMISSIONER
DISTRICT ADMINISTRATIVE BHAVAN,
SHIDLAGATTA ROAD,
CHIKKABALLAPUR - 562 101.
5. KARNATAKA ELECTRICITY
REGULATORY COMMISSION
NO.16, C-1, MILLERS BED AREA,
VASANTHNAGAR,
BENGALURU - 560 052,
REPRESENTED BY ITS CHAIRMAN.
... RESPONDENTS
(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 & R2;
SRIMURUGESH V.CHARATI, ADVOCATE FOR R3;
SMT.M.C.NAGASHREE, AGA FOR R4
SRI B.N.PRAKASH, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 29.05.2018 IN
O.P.NO.148/2017 PASSED BY THE R-5, AS PER
ANNEXURE-H AND ALLOW THE O.P. NO. 148/2017 BY
GRANTING AN AMOUNT OF RS 8.40/- PER UNIT AS PER
THE PPA AND ETC.,
IN WRIT PETITION No.12644/2020
BETWEEN:
M/S POORVAJ SOLAR ENERGY PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT:
NO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,
40TH CROSS, 8TH BLOCK, JAYANAGAR,
BENGALURU - 560 082
REPRESENTED BY ITS DIRECTOR
SRI ISHWAR HEGDE.
... PETITIONER
(BY SRI GANAPATHY BHAT VAJRALLI, ADVOCATE)
21
AND:
1. M/S. BANGALORE ELECTRICITY
SUPPLY COMPANY LIMITED (BESCOM)
OFFICE AT: K.R.CIRCLE,
BENGALURU - 560 001
REPRESENTED BY
MANAGING DIRECTOR.
2. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
CAVERI BHAVAN,
BENGALURU - 560 009
REPRESENTED BY
MANAGING DIRECTOR.
3. THE KREDL
SHANTHI GRUHA, NO.39,
BHARATH SCOUTS AND GUIDES BUILDING,
OPPOSITE THE CHIEF POST MASTER
GENERAL OFFICE,
PALACE ROAD, BENGALURU - 560 001
REPRESENTED BY ITS MANAGING DIRECTOR.
4. THE DEPUTY COMMISSIONER
DISTRICT ADMINISTRATIVE BHAVAN,
SHIDLAGATTA ROAD,
CHIKKABALLAPUR - 562 101.
5. KARNATAKA ELECTRICITY
REGULATORY COMMISSION
NO.16, C-1, MILLERS BED AREA,
VASANTHNAGAR,
BENGALURU - 560 052
REPRESENTED BY CHAIRMAN.
... RESPONDENTS
(BY SRI SHAHBAAZ HUSAIN, ADVOCATE R1 AND R2
SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;
22
SMT.M.C.NAGASHREE, AGA FOR R4;
SRI B.N.PRAKASH, ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED 28.08.2018 IN
O.P.NO.167/2017 PASSED BY THE R-5, AS PER
ANNEXURE-H AND ALLOW THE O.P. NP. 167/2017 BY
GRANTING AN AMOUNT OF RS 8.40/- PER UNIT AS PER
THE PPA AND ETC.,
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 24.06.2021, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
ORDER
Assemblage of these petitions raise a challenge to
the order passed by the Karnataka Electricity
Regulatory Commission1 in rejecting Original Petition
No.214 of 2017 filed before it by the petitioners and
directing that the petitioners shall be entitled to a
particular tariff. Since facts are common in all these
petitions, facts obtaining in Writ Petition No.52028 of
2018 are referred to in this order for the sake of
convenience.
1 'Commission' for short
2. Succinctly stated, the facts germane for
consideration of the lis are as follows:-
Government of Karnataka on 22-05-2014
introduced a solar policy to be availed between 2014
and 2021 with the object of harnessing the potential of
solar resources in the State. In furtherance of the policy
of the State, Karnataka Renewable Energy Development
Limited2 issued a notification inviting online
applications for facilitating development of renewable
energy on 09.10.2014. The petitioners, in all these
cases, applied pursuant to the notification issued by
KREDL. In Writ Petition No.52028 of 2018, a letter of
award was issued in favour of one Sri Bommappa
Kenchikoppa for development of two megawatts (mw)
solar power plant by a letter of award dated 16.03.2015.
Before the plant could be commissioned and even the
process of harnessing solar resources to begin, the
'KREDL' for short
holder of award died bequeathing his entire property in
favour of his grandson, the petitioner herein.
3. On 26.08.2015, a power purchase agreement
was entered into between the petitioner and the
Bangalore Electric Supply Company Limited3 ('BESCOM'
for short). The power purchase agreement so entered
into between the petitioner and BESCOM was approved
by the Commission on 01.09.2015 pursuant to which,
the petitioner applied to KPTCL for evacuation approval
on 05.08.2016. Pending such approval, the petitioner
also applied before the Deputy Commissioner,
Davangere for conversion of land in Sy.No.67 measuring
10 acres for the purpose. After submission of such
application for conversion KPTCL issued an order of
approval of temporary evacuation on payment of
process fee and payment for evacuation on 19.09.2016.
This resulted in supplemental power purchase
agreement between the petitioner and the 2nd
3 'BESCOM' for short
respondent on 28.09.2016. After the supplemental
power purchase agreement, the petitioner applied for a
no objection from Soratur Grama Panchayat, Honnali
Taluk, Davengere.
4. On 19.10.2016 the Deputy Commissioner
before whom the conversion application was pending
accorded conversion after obtaining NOC from Soratur
Grama Panchayat. Thereafter the 1st respondent/
Government directed all ESCOMS to form a three
member committee to consider extension requests of
farmers holding lands for a period of 3 months. The
communication was sent to all ESCOMS on 24.11.2016.
On 06.01.2017 the petitioner requested BESCOM to
grant extension of scheduled date of commissioning of
the project by 6 months on account of force majeure.
The BESCOM on receipt of such request from the
petitioner and the like, directed the petitioner to submit
documents in support of the claim for extension of the
project.
5. On 27.02.2017 the petitioner again requested
along with all the documents extension of scheduled
date of commissioning of the project by six months.
Pending all such applications for extension - one from
the farmers and the other from the petitioner and the
like, KREDL informed all ESCOMS by its
communication dated 16.03.2017 that requests for
extension of time should not be considered as a routine
exercise except under extraordinary conditions to be
proved by the project developer within the scope of the
power purchase agreement. The Commission issued
another letter/direction directing BESCOMs to advice
the petitioner and all those who were in possession of
such power purchase agreements to file a petition before
it with all necessary documents seeking approval for
extension of time. This direction of the Commission was
issued on 05.04.2017.
6. On 16.06.2017 BESCOM approved the request
of the petitioner for scheduled date of commissioning of
the solar power project by 6 months on account of force
majeure reasons subject to any damages to be payable
and the tariff to be approved by the Commission. The
Government on 23.06.2017 addressed a communication
to KREDL observing that Government has accepted the
plea of ESCOMs in the matter of extension of time to
achieve commissioning of solar project under farmers'
scheme invoking force majeure conditions of the power
purchase agreement and also requested the
Commission to approve such extension of time.
7. On 07.07.2017 the Commission again issued
directives to ESCOMS directing them not to grant
extension of time without the prior approval of the
Commission. On 09.08.2017 BESCOM in terms of the
direction issued by the Commission directed the
petitioner and the like to seek approval from the
Commission for extension of scheduled date of
commissioning. Pending such approval, a provisional
interconnection approval was accorded by BESCOM and
commissioning certificate was also issued confirming
that solar power plant of the petitioner was
commissioned. After all the aforesaid proceedings, the
petitioner filed original petition as was directed by
BESCOM before the Commission in O.P.No.214 of 2017
seeking approval of scheduled date of commissioning.
The Commission by its order dated 09.10.2018
dismissed original petition and directed to pay damages
and liquidated damages as per clauses of the power
purchase agreement and also directed that the tariff
applicable to the petitioner would be Rs.4.36 per unit as
opposed to Rs.8.40 per unit and agreed to by the parties
under the power purchase agreement. It is this order
dated 09.10.2018 and the like, even or odd, that is
called in question by all the petitioners in these
petitions.
8. Heard Sri Manmohan P.N. learned counsel
appearing for the petitioners in most of the petitions,
Sri Ganapathi Bhat Vajralli, learned counsel appearing
for few of the petitioners, Sri S.Sriranga, learned
counsel appearing for KPTCL, Sri Shahbaaz Husain,
learned counsel appearing for BESCOM and KPTCL,
Smt. M.C. Nagashree, learned High Court Government
Pleader for the State, Sri B.N.Prakash, learned counsel
for the Commission and Sri Murugesh.V.Charati,
learned counsel for KREDL.
9. The learned counsel Sri Manmohan P.N who
has led the arguments in the case would urge the
following contentions, that the Commission had no
jurisdiction to intervene in the matter in exercise its
inherent power under Regulations 11 and 14 of the
Karnataka Electricity Regulatory Commission (General
and Conduct of Proceedings) Regulations, 2000; that
inherent powers of the Commission would not enable it
to determine the tariff once an agreement has been
signed between the petitioners and BESCOM; that
power of the Commission is restricted to the period prior
to execution of the power purchase agreement and not
after that; that the Commission had no jurisdiction to
alter or modify terms of the agreement; that letters
issued by the Commission directing cases to be filed
before it for extension would amount to being a Judge in
its own cause; that the parties having appeared before
the Commission cannot confer jurisdiction upon the
Commission to decide the issue after it had no
jurisdiction under the Act; that the Commission has not
proceeded with an open mind as the Commission had
pre-judged the issue by directing ESCOMS not to grant
extension of scheduled date of commissioning the
project.
9.1. The learned counsel would place reliance
upon the following judgments:
(i) GUJARAT URJA VIKAS NIGAM LIMITED v.
SOLAR SEMICONDUCTOR POWER COMPANY
(INDIA) PRIVATE LIMITED AND ANOTHER -
(2017) 16 SCC 498;
(ii) BESCOM v. KONARK POWER PROJECTS
LIMITED AND ANOTHER - (2016) 13 SCC 515;
(iii) RAGHU INFRA PRIVATE LIMITED AND
ANOTHER v. C.E.S.C. AND ANOTHER
(W.P.No.51518-51519/2016 decided on
27-08-2019 by this Court);
(iv) ASIAN FAB TECH LIMITED v. CESC AND
ANOTHER
(W.P.No.51365 of 2016 decided on 27-08-2019 by
this Court);
(v) CHENNAMANGATHIHALLI SOLAR POWER
PROJECT LLP AND ANOTEHR v. BESCOM AND
ANOTHER
(Appeal No.351 of 2018 decided on 14-09-2020 by
the APTEL);
(vi) A.U.KURESHI v. HIGH COURT OF GUJARAT
AND ANOTHER - (2009) 11 SCC 84;
(vii) MOHD. YUNUS KHAN v. STATE OF UTTAR
PRADESH AND OTHERS - (2010) 10 SCC 539;
(viii) SIEMENS LIMITED v. STATE OF
MAHARASHTRA AND OTHERS - (2006) 12 SCC
33 and
(ix) COMMITTEE OF MANAGEMENT AND ANOTHER
v. VICE CHANCELLOR AND OTEHRS
- (2009) 2 SCC 630.
10. The other learned counsel has toed the lines of
argument of Sri Manmohan P.N., learned counsel.
11. On the other hand, learned counsel Sri
S.Sriranga, appearing for the respondent KPTCL and
BESCOM would at the outset submit that petitioners
have an alternative and efficacious remedy of filing an
appeal before the Appellate Tribunal for Electricity
constituted under Section 111 of the Electricity Act,
2003 and the impugned order passed by the
Commission cannot be questioned before this Court.
Without prejudice to the issue of maintainability, the
learned counsel would also submit that the Commission
had jurisdiction to direct what it has done and the order
passed by the Commission is unassailable and would
place reliance upon judgments in cases of:
(i) ALL INDIA POWER ENGINEERS FEDERATION
LIMITED v. SASAN POWER LIMITED
- (2017) 1 SCC 487;
(ii) TATA POWER COMPANY LIMITED v. RELIANCE
ENERGY LIMITED - (2009) 16 SCC 659;
(iii) GUJARAT URJA VIKAS NIGAM LIMITED v.
TARINI INFRASTRUCTURE AND OTHERS -
(2016) 8 SCC 743;
(iv) P.SINGARAVLEAN AND OTHERS v. DISTRICT
COLLECTOR, TIRUPUR AND OTHERS -
(2020) 3 SCC 133;
(v) GUJARAT URJA VIKAS NIGAM LIMITED v.
EMCO LIMITED AND ANOTHER -
(2016) 11 SCC 182;
(vi) EARTH SOLAR PRIVATE LIMIED v. PUNJAB
STATE ELECTRICITY REGULARTORY
COMMISSION AND ANOTEHR
- (Appeal No.169 of 2015 decided on 11-01-2019);
(vii) RELIANCE INFRASTRUCTURE LIMITED v.
STATE OF MAHARASHTRA - (Civil Appeal
No.879 of 2019 decided on 21-01-2019);
(viii) A.P. TRANSCO v. SAI RENEWABLE POWER (P)
LIMITED - (2011) 11 SCC 34;
(ix) VATSALA BELLARY v. KREC AND OTHERS -
(W.P.No.35569 of 2018); and
(x) GRAPHITE INDIA v. KERC AND OTHERS
(W.P.No.12576 of 2018 decided on 21-06-2018).
12. I have given my anxious consideration to the
rival submissions made across the bar and have
perused the material on record.
13. The facts narrated hereinabove would not need
reiteration as they are not in dispute. To consider the
contentions advanced by respective parties as aforesaid,
the prayers in the writ petition that is taken for
reference are to be noticed. The prayers that are sought
in Writ Petition No.52028 of 2018 read as follows:
(i) Issue a writ of certiorari and quash the
communication dated 16-03-2017
bearing No.KERC/ S/F-31/VOL-
ALL/16-17/2763 issued by the 5th
respondent (Produced as Annexure-S);
and
(ii) Issue a writ of certiorari and quash the
communication dated 5-04-2017
bearing No.KERC/ S/F-31/VOL-
ALL/16-17/55 issued by the 5th
respondent (Produced as Annexure-T);
and
(iii) Issue a writ of certiorari and quash the
communication dated 07-07-2017
bearing No.KERC/ S/F-31/VOL-
ALL/17-18/541 issued by the 5th
respondent (Produced as Annexure-V);
and
(iv) Issue a writ of certiorari and quash the
communication dated 16-06-2017
bearing No.CM(Ele.)/PP/BESCOM
/DGM-1/AGM-1/BC-39/F-/17-18/3627
-33 issued by the 2nd respondent insofar
as subjects the extension of SCOD to the
condition that the tariff applicable and
the liquidated damages to be paid if
any is subject to Hon'ble KERC/GOK
approval (Produced as Annexure-F); and
(v) Issue a writ of certiorari and quash the
communication dated 09-08-2017
bearing NO. GM (Ele)/PP/BESCOM/
DGM-1/AGM-1/BC-39/F-17-18/ 6810
issued by the 2nd respondent (Produced
as Annexure-X); and
(vi) Issue a writ of certiorari and quash the
order dated 9-10-2018 passed in
O.P.No.214 of 2017 passed by the 5th
respondent (Produced as Annexure-AB);
and
(vii) Issue a writ of mandamus directing the
2nd respondent to pay the tariff of
Rs.8.40 kwh to the petitioner as per the
Power Purchase Agreement dated 26-
08-2015 (Produced as Annexure-C; and
(viii) Pass such other orders as deemed fit in
the facts and circumstances of the case,
in the interest of justice and equity."
In furtherance of the solar policy of the State
notification was issued by KREDL and the petitioner
was issued a letter of award for development of MW
solar power plant. Certain clauses of the power
purchase agreement dated 26-08-2015 entered into
between the petitioner and BESCOM are germane to be
noticed and are accordingly extracted herein for the
purpose of ready reference:
"Article-I: Definitions
1.1 For all purposes of this Agreement, unless the
context otherwise requires the following
words and expressions shall have the
respective meanings set forth below:
... ... ... ...
(xii) "Effective Date" shall mean date of
signing of this Agreement by the parties:
... ... ... ...
(xxviii)"Scheduled Commissioning Date"
shall mean 18 (eighteen) months from
the Effective Date.
(xxix) "State loan dispatch Centre" means
the State Load Despatch Centre
established as per the Act;
(xxx) "State transmission Utility" or
"STU" shall mean Karnataka Power
Transmission Corporation Limited or
KPTCL.
(xxxi) "Tariff Payment" shall mean the
payments to be made under Monthly
Bills as referred to in Clause 6.3 and
the relevant Supplementary Bills.
5.1 Tariff payable:
The SPD shall be entitled to receive the Tariff
of Rs.8.40 per KWH based on the KERC tariff
order S/03/1 dated 10-10-2013 in respect of
SPD's Solar PV projects in terms of his
agreement for the period between COD and
the Expiry Date. However, subject to Clause
2.5, if there is a delay in commissioning of the
Project beyond the Scheduled Commissioning
Date and during such period there is a
variation in the KERC Tariff, then the
applicable Tariff for the projects shall be the
lower of the following:
(i) Rs.8.40 per kwh.
(ii) Varied tariff applicable as on the
date of Commercial Operation.
Article-8 FORCE MAJEURE
8.1 Definitions:
In this Article, the following terms shall have
the following meanings:
8.2 Affected Party:
An affected party means BESCOM or the SPD
whose performance has been affected by an
event of Force Majeure.
8.3 Force Majeure Events:
a) Neither Party shall be responsible or
liable for or deemed in breach hereof
because of any delay or failure in the
performance of its obligations
hereunder (except for obligations to
pay money due prior to occurrence of
Force Majeure events under this
Agreement) or failure to meet
milestone dates due to any event or
circumstance (a "Force Majeure Event")
beyond the reasonable control of the
Party affected by such delay or
failure, including the occurrence of
any of the following:
i. Acts of God;
ii. Typhoons, floods, lightning,
cyclone, hurricane, drought,
famine, epidemic, plague or other
natural calamities;
iii. Strikes, work stoppages, work
slowdowns or other labour
dispute which affects a Party's
ability to perform under this
Agreement;
iv. Acts of war (whether declared or
undeclared), invasion or civil
unrest;
v. Any requirement, action or
omission to act pursuant to any
judgment or order of any court or
judicial authority in India
(provided such requirement,
action or omission to act is not
due to the breach by the SPD or
BESCOM, of any law or any of
their respective obligations under
this Agreement);
vi. Inability despite complying with
all legal requirements to obtain,
renew or maintain required
licenses or Legal Approvals;
vii. Fire, Earthquakes, explosions,
accidents, landslides;
viii. Expropriation and/or compulsory
acquisition of the Project in
whole or in part;
ix. Chemical or radioactive
contamination or lionizing
radiation; or
x. Damage to or breakdown of
transmission facilities of either
Party;
b) The availability of the above item (a) to
excuse a Party's obligations under this
Agreement due to a Force Majeure Event
shall be subject to the following limitations
and restrictions:
i. The non-performing Party gives the
other Party written notice describing
the particulars of the Force Majeure
Event as son as practicable after its
occurrence;
ii. The suspension of performance is of
no greater scope and of no longer
duration than is required by the
Force Majeure Event.
iii. The non-performing Party is able to
resume performance of its obligations
under this Agreement, it shall give
the other Party written notice to that
effect;
iv. The Force Majeure Event was not
caused by the non-performing Party's
negligent or intentional acts, errors or
omissions, or by its
negligence/failure to comply with
any material law, or by any material
breach or default under this
Agreement;
v. In no event shall a Force Majeure
Event excuse the obligations of a
Party that are required to be
completely performed prior to the
occurrence of a Force Majeure Event.
... ... ... ...
12.10 Amendments:
This Agreement shall not be amended,
changed, altered or modified except by a
written instrument duly executed by an
authorized representative of both
Parties. However, BESCOM may consider
any amendment or change that the
Lenders may require to be made to this
Agreement subject to the approval of the
Commission.
(Emphasis added)
Clause (xxviii) of the definitions would define 'Scheduled
Commissioning Date' to be 18 months from the effective
date. Clause (xii) thereof defines 'Effective Date" would
mean the date of signing of the agreement between the
parties. The 'Conditions Precedent' are dealt with under
Article-2. Damages for delay to be paid by the Developer
are dealt with under Clause 2.2. Extensions of time are
depicted in Clause 2.5. In terms of Clause 2.5.6 the
result of extensions would be the scheduled
commissioning date and expiry date would be
determined afresh which shall be the scheduled
commissioning date and the expiry date for the
purposes of the agreement. Tariff payable in terms of
the agreement is dealt with under Clause 5.1 which
determines agreed tariff to be Rs.8.40 per kWh. Force
Majeure is dealt with under Article 8. One such clause
depicts inability despite complying with all legal
requirements to obtain, renew or maintain required
licenses. It is in terms of the aforesaid agreement that
the entire issue now springs and is to be considered.
14. In terms of the agreement, the petitioner
applied for evacuation approval from the hands of
KPTCL and conversion from the hands of Deputy
Commissioner and no objection from the hands of
Soratur Gram Panchayat. The approval was granted on
different dates and a supplemental power purchase
agreement was also entered into between the parties.
Since the issue now is with regard to delay in scheduled
date of commissioning, the reasons behind the delay is
required to be noticed.
15. The petitioners in all these cases requested
BESCOM for extension of scheduled commissioning
date enclosing the dates on which steps have been
taken by the petitioners seeking several statutory
approvals which were held at the hands of Government.
First representation of the kind was given on 1st
February 2017 and the second representation of the
kind was given on 27th February 2017. In reply, what
the 1st petitioner got was a communication dated
15-04-2017 from BESCOM which reads as follows:-
"Sir,
Sub: Power Purchase Agreement of 2 MW
Tuggalahalli village, Honnali Taluk,
Davangere District, Karnataka State of
Sri AmarthyaRajashekarappa - reg
Extension of Scheduled Commissioning
date.
Ref: 1. PPA executed with BESCOM on
26.08.2015.
2. Your letter dated 06-01-2017,
1.2.2017 & 27.2.2017
3. KERC letter No.KERC/S/F-
31/Vol-1ll/16-17/55 dated 05-04-
2017.
--
Hon'ble KERC vide letter cited under
ref.(3), have informed that , the
Commission has the jurisdiction of legal
scrutiny of validity of the extension of
time granted in any case by an ESCOM.
Such proceedings being a part of judicial
functions of the Commission require
reasonable opportunity to be given to
both parties of the PPA to present their
case.
In this regard, Hon'ble Commission directs all
the ESCOMs to advice the concerned
SPD/SPVs under Land Owners/ Farmers
Scheme to file a petition before the
Commission with all relevant
grounds/documents for seeking approval for
any extension of the Commissioning date.
(copy of the letter is enclosed).
I am directed to request you, to file a
petition before the Hon'ble Commission
forth, with all relevant grounds/
documents for seeking approval for any
extension of the Commissioning date."
(Emphasis added)
The communication furnished by BESCOM was based
upon the letter issued by the Commission on
16-03-2017 which reads as follows:
"No.KERC/S/F-31/Vol-All/16-17/ Dated:16-
03-2017
The Managing Director,
BESCOM/MESCOM/ESCOM/HESCOM/
GESCOM.
Sir,
Sub: Extension of time to achieve COD of the
Solar Projects - reg.
Ref. 1.BESCOM letter NO.GM(Ele)/PP/
BESCOM/DGM-1/AGM-1/BC-39/F..
dated 9thJanuary, 2007.
2.KERC letter No.KERC/S/F-31/Vol-
41/15-16/148 dated 04-05-2015.
--
It has come to the notice of the
Commission that the BESCOM in its letter
cited under reference, has granted
extension of time of six months to
achieve COD for the 10 MW Solar Project,
beyond the time allowed in the PPA
without altering the terms of the original
PPA. The PPA was approved by the
Commission vide its letter cited under
Ref.2 above. The Commission has noted
that BESCOM has not obtained prior
approval of the Commission regarding
the extension of time. The reasons and
justification for the extension of time are
not forthcoming from the letter of
BESCOM.
The Commission has also observed that in
certain instances, ESCOMs have granted
extension of time to achieve commercial
operation of the solar projects from the
originally agreed scheduled commissioning
date, without altering the terms and
conditions of the PPA.
Since the extension of time by ESCOMs
without altering the terms of the original PPA
will have impact on the Tariff payable by the
ESCOMs, the Commission has the jurisdiction
of legal scrutiny of validity of the extension of
time granted.
The Solar Projects are expected to be
completed in the time bound manner in order
to ensure that not only the anticipated solar
power generation accrues to the grid to meet
the planned demand but also to ensure that
the capital cost of the developer is as per
assumption mode for calculating the Tariff
offer and any extension of time will have for
reaching tariff implications affecting the end
consumers. In view of rapid changes in
the market conditions of photovoltaic
plants, resulting in sustained reduction
in their cost. Extension of time should
not be considered as a routine exercise
except under extra-ordinary conditions to
be proved by the project developer, within
the scope of the original PPA.
I am directed to inform all ESCOMs to
not to allow any extension of time beyond
the Scheduled Commissioning date (COD)
if any, as per the original PPA without
obtaining prior opinion of this
Commission."
(Emphasis added)
The Commission clearly directed ESCOMs not to allow
any extension of time beyond the scheduled
commissioning date without obtaining prior approval of
the Commission. The Commission again communicates
on 05.04.2017 with regard to extension of time for
scheduled commissioning of the project. The letter dated
05.04.2017 reads as follows:
"No.KERC/S/F-31/Vol-All/16-17/55
Date:5-04-2017
The Managing Director,
BESCOM/MESCOM/CESC/HESCOM/GESCOM
Sir,
Sub: Request for Commission's approval for
Supplementary PPAs executed to
incorporate extension of time to achieve
COD at the Solar Projects under
landowners/farmers scheme - Reg.
Ref: KERC letter No.KERC/S/F-31/Vol-
All/16-17/2763 dated 17-03-2017.
--
The Commission is receiving for approval
several Supplementary PPAs executed in
respect of Solar Projects under Land
Owners/Farmers' Scheme. Such
supplemental PPAs mainly seek to extend
time to the developers to achieve CoD beyond
the date specified in the original PPAs. The
ESCOM concerned has stated that a
Committee formed with its Director Technical
as Chairman, as directed by the Government
in Energy Department to resolve the issue of
granting extension of CoD by considering
Article 2.5 and 8 of the PPA, has decided to
grant extension of time for achieving
scheduled commissioning of the project as
requested by the developer.
2. The Commission has noted that, the
grounds cited to grant extension of time and
the duration of such extension vary from case
to case. However, the proceedings of the said
Committee and the proposal of the ESCOMs
which are not supported by any documents
and independent findings, are inadequate to
enable the Commission to take a decision in
the matter.
3. As already clarified in the Commission's
letter dated 17-03-2017 cited under reference
the Commission has the jurisdiction of legal
scrutiny of the extension of time granted in
any case by an ESCOM. Such proceedings
being a part of judicial functions of the
Commission require reasonable opportunity to
be given to both parties of the PPA to present
their case.
4. Hence, I am desired by the
Commission to inform that the
Commission directs all the ESCOMs to
advice the concerned SPD/SPVs under
Land Owners/Farmers Scheme to file a
petition before the Commission with all
relevant grounds/documents for seeking
approval for any extension of the
commissioning date. It may also be
noted, this direction of the Commission
applies to even such cases where the
ESCOMs have not entered into
Supplementary PPAs following the
decision of the Committee to grant
extension of commissioning date."
(Emphasis added)
It is here that the marrow of the lis lies. In paragraph 4
of the communication the Commission directs all
ESCOMs to advice the petitioner and the like to file a
petition before it with all relevant grounds and
documents seeking approval of any extension of
commissioning date. It further directs that this direction
of the Commission would apply even to such cases
where ESCOMs have not entered into supplementary
power purchase agreement. The Commission again on
07.07.2017 directed all ESCOMs not to send any
proposal for approval of the Commission till petitions
are filed by the petitioners and like before the
Commission. The said communication dated
07.07.2017 reads as follows:
"No.KERC/S/F-31/Vol-All/17-187/541
Date:07.07.2017
The Managing Director,
BESCOM/MESCOM/CESC/HESCOM/GESCOM
Sir,
Sub: Extension of time for SCOD in respect of 1 to 3
MWs Solar Power Plants in Karnataka, under
Farmers category. - Reg.
Ref: i) Govt.letter No.EN 67 VSC 2017 dated
23.06.2017
ii) KERC letter No.KERC/S/F-
31/Vol.All/17-18/212 dated 09-05-
2017.
iii) Govt. letter No: EN 67 VSC 2017 dated
25.04.2017.
(iv) KERC letter No.KERC/S/F-31/Vo-
All/16-17/65 dated 05-04-2017.
(v) KERC letter No.KERC/S/F-31/Vol-
All/16-17/2763 dated 17-03-2017.
(vi) Govt.letter No.EN 75 VSC 2016 date
24.11.2016
--
Please refer to the letter dated 23-06-2017
cited under reference (1) RECEIVED FROM THE
Energy Department, GoK, wherein the Government
has stated that, it has accepted the views of the
ESCOMs, in the matter of extension of time to
achieve CoD of the Solar Projects under farmers'
scheme invoking Force Majeure conditions of the
PPA and hence has requested the Commission to
approve such extension of time for achieving CoD.
I am directed to inform you that, the
action of the ESCOMs to permit the developers
to commission the projects beyond the original
scheduled CoD as per PPA, has been approved
by the Commission, which however, has noted
that the tariff applicable in each case needs
to be examined on merits of each individual
case.
I am also directed to inform you that, the
ESCOMs may advice the concerned SPD/SPVs
under Land Owners/ Farmers scheme to file a
petition, each before the Commission with all the
relevant grounds/documents for justifying their
claims for extension of time under Force majeure
conditions of the PPA.
Further, the ESCOMs are hereby directed not
to send any SPPA in respect of these cases for
approval of the Commission, till the petition(s) filed
by the SPDs/SPVs before the Commission, is/are
disposed of.
(Emphasis added)
From the correspondences between BESCOMs and the
Commission, Government of Karnataka also requested
the Commission to extend time for the reasons
communicated in the letter dated 23.06.2017. The letter
of the Government to the Commission dated
23.06.2017 reads as follows:-
"From:
The Additional Chief Secretary to Government,
Energy Department, Bangalore.
To:
The Secretary,
Karnataka Electricity Regulatory Commission,
6th& 7th Floor, Mahalakshmi Chambers,
No.9/2, M.G.Road, Bengaluru-560 001.
Sir,
Sub: Extension of time for SCOD in respect of 1 to 3
MWs Solar Power Plants in Karnataka under
Farmers Category - reg.
Ref: 1. Government same file No.Letter dated
23.04.2017.
2. Your letter No.KERC/S/F-
31/Vol.A11/17-18/ 212 D:09-05-2017.
3. MD, CESC DO.letterNo.CESC/MD/GM
(coml.) RA 2/17-18/DO-63 D:11-05-
4. MD, HESCOM letter
No.HESCOM/GM(T)/EE/ (RA)/AEE/17-
18/3624 D: 15-05-2017.
5. MD, GESCOM letter
NO.GESCOM/CEE(CP)/EE/ AEE
(PTC)2016-17/7945 D:16-05-2017
6. MD, MESCOM Letter
No.MESCOM/MD/PS/99 D. 17-05-
2017.
--
In inviting kind reference to the above, for the
Government proposal under ref (1) regarding
considering approval to the extension of COD of
Solar Power Projects of capacity 1 to 3 MW under
land owning farmers category in BESCOM, the
Hon'ble Commission vide reference (2), has
requested the Government to furnish the details of
similarly placed cases in the other ESCOMs, in
order to take view in the matter.
In this regard, other ESCOMs have also
submitted their request on the subject matter. The
ESCOM wise details of the projects under land
owner Farmers is as below:
... ... ... ....
As per the above table, out of 304 MW PPA
signed, 131 MW projects have been commissioned
within SCOD. Extension of time has been issued by
ESCOMs for 129 MW capacity. Proposals to an
extent of 31 MW capacity is pending at ESCOMs
level, since the Hon'ble Commission has directed all
ESCOMs not to allow any extension of time beyond
the schedule COD, without obtaining prior opinion
of the Commission.
From the proposals submitted by all
ESCOMs it is clear that the reasons for delay
in execution of the project are common and
the main reasons for considering the
extension of SCOD are as below:
a. Delay in getting land conversions.
b. Delay in getting evacuation approval,
Bay extension approval, CEIG approval
etc.
c. Delay in financial closure due to delay
in the above mentioned permits.
d. Delay due to demonetization of the
Indian Currency.
e. Delay in getting Railway Crossing
approval
f. Delay in getting MEI switchgears.
The Managing Directors of CESC, HESCOM,
GESCOM and MESCOM vide letters under ref (3),
(4) (5) & (6) have explained the reasons for giving
extension of SCOD and summed up saying that this
scheme under farmers category is brought into
effect with the approval of the Solar Policy by the
Cabinet. Government considers it as a preferred
and prestigious one. Further, it is standalone
scheme in the energy sector not only in
Karanata but also in the entire country.
Particularly the following are brought to the
notice of the Hon'ble Commission:
1. The ESCOMs have constituted Committees under
the Chairmanship of the respective Directors
(Technical) to scrutinize and recommend the
eligible cases for giving extensions of SCOD and
based on the scrutiny and recommendations of
the Commission the respective ESCOMs have
given extensions as required under Clause 8.3
(b) of the PPA.
2. The extensions are given under Force Majeure as
per 8.3 (a) (vi) of the PPA which read as:"Inability
despite complying with all legal requirements to
obtain renew and maintain required licenses or
Legal Approvals."
Hence ESCOMs have given extensions of COD on
identical reasons under PPA clause 2.5 (Extension
of time) and Article 8 (Force Majeure). In all these
cases extensions of COD is given by ESCOMs upto
6 (six) months from the date of SCOD as per PPA
Clause 2.5 and Article 8 clearly mentioning that all
other terms and conditions shall remain unaltered
at the KERC approved rate of unit as laid down in
the terms and conditions of PPA in consideration of
the investment made by the farmer.
Accordingly, the reasons given by and the
opinion of MD's of CESC, HESCOM, GESCOM and
MESCOM are acceptable to the Government (Copies
enclosed). In view of the above, I am directed to
request the Hon'ble Commission to consider
approval to the extension of COD of Solar Power
Projects of capacity 1 to 3 MW under land owning
famers category.
(Approved by Hon'ble Energy Minister)."
(Emphasis added)
BESCOM communicates to the petitioner on 09.08.2017
that the petitioner will become liable for difference in
tariff and liquidity damages pertaining to delayed
commissioning of the project. Here, the BESCOM
directs the petitioner to file cases before the
Commission forthwith justifying the claim for extension
of time under force majeure conditions. The
Government of India also noticed that not only in
Karnataka but in several places due to factors beyond
control of the developers the project could not be
commissioned and, therefore, directed Energy
Department of Government of Karnataka to grant six
months extension of time to solar projects. The
communication dated 09.04.2018 from the Ministry of
New and Renewable Energy, Government of India to the
Government of Karnataka reads as follows:
"To
The Additional Chief Secretary,
Energy Department, Govt. of Karnataka,
Room NO.236, 2nd Floor, Vikas Soudha,
Dr. B.R.Ambedkar Street,
Bangalore, Karnataka
E-mail: [email protected]
Subject: Request to restore the original tariff of
Rs.8.40 per unit for 1-3 MW solar power plants
commissioned under the Land Owned farmers
Scheme of Karnataka.
--
Sir,
This Ministry has received a letter from Association
for Land Owned Farmers Solar Power Plants,
Karnataka on above subjects. Letter is enclosed for
reference.
2. Points highlighted in letter are given below as:
a. Govt. of Karnataka has implemented a
Land Owned Farmers Scheme with 1-3
MW solar plants. Under this scheme, PPA
of 304 MW was signed. Out of 304 MW,
PPA for 283 MW was signed with Rs.8.4
per unit tariff. Out of 283 MW, only 131
MW were commissioned within schemed
commissioning date (SCOD).
b. However, ESCOMs have granted 6 months
extension for 162 MW solar projects for
commissioning of these capacities under
Force Majeure Article 8a(vi) of the PPA.
These extensions were given due to many
reasons beyond the solar power
developers' control viz., Demonetisation,
Cyclone effect, inordinate delay in NA
conversion, power evacuation approvals,
safety approval by CEIG and other
required statutory approvals.
c. KERC has taken a different stand. The
commission has asked all farmers/PPA
holders to file petition explaining the
reasons for extension. The final
judgment on few petitions clearly
indicates that the commission has
taken the unilateral decision to lower
the tariff from Rs.8.40 to Rs.6.51 or
Rs.4.36. Due to this, over 57% of the
commissioned capacities are facing a
threat of survival of bankruptcy.
3. As you are aware that the Government of
India has set a target of setting up 100 GW solar
capacities by 2022. While all efforts are being made
to achieve this target through its various Schemes,
the solar power developers need to be given
adequate confidence to maximize development of
solar power capacity in the State. The stand taken
by KERC on above matters would create an
uncertainty for the investors and demotivate the
investors from investing in solar sector.
4. In view of above, it is requested that
Government of Karnataka may take up the above
matter with KERC under Section 108 of the
Electricity Act, 2003".
(Emphasis added)
16. With all the aforesaid correspondences,
communications, approvals and extension of time, the
petitioner, as was directed, approached the Commission
for extension of time in O.P.No.214 of 2017. Prayer that
was sought by the petitioner before the Commission
reads as follows:
"A) Approve the extension granted by the
respondent to new scheduled
commissioning date viz., 25 August, 2017
th
accorded by the 1st respondent vide its
letter dated 6th June, 2017 produced as
Annexure-P12.
B) Direct the respondent to make payment for
the delivered energy under the PPA dated
26thAugust, 2015 produced as Annexure-
P2 and the supplemental agreement dated
28th September, 2016 produced as
Annexure-P5, at the rate of Rs.8.40 per
unit from the Commercial Operation Date of
the petitioner's product for the entire term
of the PPA.
C) Pass such other and incidental orders,
including an order as to costs as may be
deemed appropriate under the facts and
circumstances of the present case."
The Commission claiming to be considering the case of
the petitioner observed that there was no force majeure
event for the petitioner to contend that they could not
commission the project and rejected the claim of the
petitioner for extension of scheduled date of
commissioning by the following order:
"(a) It is declared that the petitioner is not entitled
to any of the reliefs, sought for in the petition.
(b) The petitioner is entitled to a tariff of Rs.4.36
(Rupees four and paise thirty-six) only per
unit, the varied tariff, as applicable on the
date of commissioning of the petitioner's
plant, as fixed by the Commission in the order
dated 12-04-2017 for the term of the PPA, as
per Article 5.1 of the PPA; and
(c) The petitioner is also liable to p[ay damages,
as provided under Articles 2.2 and 2.5.7 of
the PPA."
Identical orders are passed in all these cases.
17. The issue now remains for consideration is,
whether the Commission could have directed BESCOM
to direct the petitioners and the like to approach the
Commission for extension of time. Having solicited
petitions being filed before the Commission, whether the
Commission has acted as a Judge in its own cause. One
acting as a Judge in his own cause is a hue of bias as
bias has manifold hues and shades, one of which is 'no
man can be a judge of its own cause'. To consider
whether the Commission has acted as a Judge in its
own cause, it is germane to notice the judgments of the
Constitutional Courts on the issue of bias, its forms and
hues.
18. One of the cardinal principles of natural
justice is 'nemo debetesse judex in propria causa' (no
man shall be a judge in his own cause). The deciding
authority must be impartial and without bias. The Rule
that bias vitiates any findings is a rule of natural
justice. It is trite law that official bias or bias of the
subject matter is one of the limbs of bias. To appreciate
the said principle on the touchstone of official bias or
bias to the subject-matter, the test is whether there was
a real likelihood of a bias even though such bias has not
in fact taken place. It is apposite to refer DE SMITH IN
HIS JUDICIAL REVIEW OF ADMINSITRATIVE
ACTION4, wherein the author observes that a real
likelihood of bias means at least substantial possibility
of bias.
19. In HALSBURY'S LAWS OF ENGLAND5, it has
been indicated that the test of bias is whether a
reasonable intelligent man, fully appraised of all the
circumstances, would feel a serious apprehension of
bias.
(1980 Edn.) at page 262
4thEdn., Vol.2 para 551
20. The Divisional Court of the Kings Bench, in
R.V. SUNDERLAND JUSTICES6, has held that the
Court will have to judge the matter as a reasonable man
would judge of any matter in the conduct of his own
business.
21. Later, Divisional Court of the Kings Bench,
in R.V. SUNDERLAND JUSTICES7, has again held in
answer to the question whether there was a real
likelihood of bias depends not upon what actually was
done but upon what might appear to be done.
22. The aforesaid principle is reiterated in
acceptance by the Apex Court in MANAK LAL v.
DR.PREM CHAND8 wherein the Hon'ble Apex Court has
held that the test is not whether in fact, bias has
affected the judgment; the test always is and must be
weather a litigant could reasonably apprehend that a
(1901) 2 KB 357, 373,
1923 All ER 233,
AIR 1957 SC 425
bias attributable to a Member of the Tribunal must have
operated against him in the final decision of the
Tribunal. It is in this sense that it is often said that
justice must not only be done but must also appear
to be done.
23. The aforesaid principles with regard to bias are
considered, iterated and elaborated by the Hon'ble Apex
Court in the subsequent judgment in the case of
K. PARTHASARATHI VS. STATE OF ANDHRA
PRADESH9 wherein the Apex Court in paragraphs 14,
15 and 16 has held as follows:
"14. The test of likelihood of bias which has
been applied in a number of cases is based on the
"reasonable apprehension" of a reasonable man
fully cognizant of the facts. The courts have
quashed decisions on the strength of the
reasonable suspicion of the party aggrieved
without having made any finding that a real
likelihood of bias in fact existed (see R. v. Huggins
[(1895) 1 QB 563] ;R. v. Sussex, JJ., ex. p.
(1974) 3 SCC 459
McCarthy [(1924) 1 KB 256] ; Cottle v. Cottle [(1939)
2 All ER 535] ; R. v. Abingdon, JJ. ex. p. Cousins
[(1964) 108 SJ 840] .) But in R. v. Camborne, JJ. ex.
p Pearce [(1955) 1 QB 41 at 51] the Court, after a
review of the relevant cases held that real
likelihood of bias was the proper test and that a
real likelihood of bias had to be made to appear not
only from the materials in fact ascertained by the
party complaining, but from such further facts as
he might readily have ascertained and easily
verified in the course of his inquiries.
15. The question then is: whether a real
likelihood of bias existed is to be determined
on the probabilities to be inferred from the
circumstances by court objectively, or, upon
the basis of the impressions that might
reasonably be left on the minds of the party
aggrieved or the public at large.
16. The tests of "real likelihood" and
"reasonable suspicion" are really inconsistent with
each other. We think that the reviewing authority
must make a determination on the basis of the
whole evidence before it, whether a reasonable
man would in the circumstances infer that there is
real likelihood of bias. The Court must look at the
impression which other people have. This follows
from the principle that justice must not only be done
but seen to be done. If right minded persons
would think that there is real likelihood of
bias on the part of an inquiring officer, he
must not conduct the enquiry; nevertheless,
there must be a real likelihood of bias. Surmise
or conjecture would not be enough. There must
exist circumstances from which reasonable
men would think it probable or likely that the
inquiring officer will be prejudiced against the
delinquent. The Court will not inquire whether
he was really prejudiced. If a reasonable man
would think on the basis of the existing
circumstances that he is likely to be
prejudiced, that is sufficient to quash the
decision [see per Lord Denning, H.R. in
Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon
[(1968) 3 WLR 694 at 707]] We should not,
however, be understood to deny that the Court
might with greater propriety apply the "'reasonable
suspicion" test in criminal or in proceedings
analogous to criminal proceedings."
(Emphasis supplied)
The case at hand will have to be judged on the
touchstone of law with regard to bias as laid down by
the Apex Court in the afore-extracted judgment.
24. It is also germane to notice the decisions of the
Apex Court in the case of A.U. KURESHI v. HIGH
COURT OF GUJARAT10 - and MOHD. YUNUS KHAN v.
STATE OF U.P.11 -. In the case of A.U.KURESHI the
Apex Court has held as follows:
10. It is an accepted principle of natural
justice that a person should not be a judge in his or
her own cause. In common law, this principle has
been derived from the Latin maxim--nemo
debetesse judex in propria sua causa. A reasonable
permutation of this principle is that no Judge
should adjudicate a dispute which he or she has
dealt with in any capacity, other than a purely
judicial one. The failure to adhere to this principle
creates an apprehension of bias on the part of the
said Judge.
(2009) 11 SCC 84
(2010) 10 SCC 539
11. It would be useful to refer to the
observations of P.N. Bhagwati, J. in Ashok Kumar
Yadav v. State of Haryana [(1985) 4 SCC 417 :
1986 SCC (L&S) 88] : (SCC p. 418)
"One of the fundamental principles of
our jurisprudence is that no man can be a
judge in his own cause. The question is not
whether the Judge is actually biased or [has]
in fact [decided] partially but whether the
circumstances are such as to create a
reasonable apprehension in the mind of
others that there is a likelihood of bias
affecting the decision. If there is a reasonable
likelihood of bias it is 'in accordance with
natural justice and common sense that the
[Judge] likely to be so biased should be
incapacitated from sitting'. The basic principle
underlying this rule is that justice must not
only be done but must also appear to be
done."
In the case of MOHD. YUNUS KHAN the Apex Court has
held as follows:
"25. The legal maxim nemo debetesse
judex in propria causa (no man shall be a
judge in his own cause) is required to be
observed by all judicial and quasi-judicial
authorities as non-observance thereof is
treated as a violation of the principles of
natural justice. (Vide Secy. to Govt., Transport
Deptt. v. MunuswamyMudaliar [1988 Supp
SCC 651: AIR 1988 SC 2232], Meenglas Tea
Estate v. Workmen [AIR 1963 SC 1719]
and Mineral Development Ltd. v. State of
Bihar [AIR 1960 SC 468].)
26. This Court in A.U. Kureshi v. High Court of
Gujarat [(2009) 11 SCC 84: (2009) 2 SCC (L&S)
567] placed reliance upon the judgment in Ashok
Kumar Yadav v. State of Haryana [(1985) 4 SCC
417: 1986 SCC (L&S) 88] and held that no person
should adjudicate a dispute which he or she has
dealt with in any capacity. The failure to observe
this principle creates an apprehension of bias on
the part of the said person. Therefore, law requires
that a person should not decide a case wherein he
is interested. The question is not whether the
person is actually biased but whether the
circumstances are such as to create a reasonable
apprehension in the minds of others that there is a
likelihood of bias affecting the decision.
27. The existence of an element of bias
renders the entire disciplinary proceedings
void. Such a defect cannot be cured at the
appellate stage even if the fairness of the
appellate authority is beyond dispute. (Vide S.
Parthasarathi v. State of A.P. [(1974) 3 SCC
459: 1973 SCC (L&S) 580: AIR 1973 SC 2701]
and Tilak Chand MagatramObhan v. Kamala
Prasad Shukla [1995 Supp (1) SCC 21: 1995
SCC (L&S) 251].)
(Emphasis supplied)
25. In the light of the law laid down by the Apex
Court in the afore-extracted judgments if the
orders/communications of the Commission is noticed, it
would without doubt get vitiated on account of
Commission soliciting and directing BESCOM not to
issue any extension orders and to direct all the
petitioners to approach the Commission. It is coercing
the petitioners to come before the Commission as it has
already looked into the file and decided to direct that
BESCOM should not issue any orders and that it would
decide the case if it is brought before it.
26. In my considered view, there cannot be a
better example of bias of the subject matter or official
bias on the part of the Commission, to have already pre-
judged the issue, directing the parties to come before it
and decide the issue re-affirming what it had already
decided on hand. It is like saying "you come before
me; I'll adjudicate, else wither none shall
adjudicate"
27. The contentions of the learned counsel
appearing for the respondent/BESCOM and the
Commission are unacceptable, as it is a clear case of
official bias or bias of the subject matter on the part of
the Commission. The contention with regard to
judgments concerning bias, quoted (supra), that, they
are all of service jurisprudence and would not be
applicable to the facts of the case at hand is also
rejected, for the reason that bias is that principle of
natural justice which permeates into every sphere of
law, be it any kind of jurisprudence. Therefore, the first
leg of proceedings before the Commission gets vitiated.
It is, thus, the Commission did not proceed with an
open mind to consider the case of the petitioners as the
Commission had issued plethora of directions/ letters to
act in a particular manner.
Jurisdiction of the Commission:
28. The contention of the learned counsel for the
petitioners is that the Commission has no jurisdiction to
determine tariff and once an agreement is signed
between the parties, the power of the Commission is
restricted to the period prior to execution of PPA and
once PPA has been signed, the Commission cannot
invoke its inherent jurisdiction to issue and modify the
terms and conditions of the Agreement or intervene with
regard to the obligations to be discharged by the parties.
28.1. It is also his contention that there is no
dispute between the petitioners and the BESCOM. The
Commission has no jurisdiction to decide the case
where there is no dispute under Section 86 of the Act.
29. These submissions are unacceptable for the
reason that the agreement entered into between the
parties clearly indicates the role of the Commission
particularly with regard to amendments. Article 12.10
of the Agreement extracted (supra) directs that the
agreement would not be amended and if amended by
way of changes being made in the agreement, they
would be subject to approval of the Commission.
30. The very agreement also stipulates the
scheduled commissioning date and the effective date.
The effective date would mean signing of the agreement
by the parties and the scheduled commission date
would be 18 months from such effective date. With the
action of the petitioners submitting representations to
BESCOM and the Government of Karnataka or the
Government directing extension to be made on several
factors would without doubt result in change of
scheduled commissioning date, which would be an
amendment to the PPA arrived at between the parties.
31. Tariff was also determined by the Commission
in the cases at hand. In terms of the agreement Article
5.1 (supra) deals with a particular tariff which also
depicts that if there is a delay in commissioning of the
project beyond the scheduled commissioning date, the
tariff would vary. The varied tariff has a direct link with
the scheduled commissioning date. If the scheduled
commissioning date would vary, resulting in variance of
tariff this would again become subject matter of
approval by the Commission. On a plain reading of the
said clauses of the PPA, the jurisdiction of the
Commission cannot be taken away. But, the act of the
Commission in directing or soliciting cases to be filed
before it and deciding the cases are such acts of the
Commission which cannot be countenanced.
32. I therefore, decline to accept the contention of
the petitioners that there is no dispute arisen for the
Commission to intervene or the petitioners to approach
the Commission. The dispute is not with regard to
interpretation of the agreement insofar as it concerns to
the parties of the agreement but, it is the events that
would lead to an amendment to the agreement that
confers jurisdiction on the Commission, not to solicit,
but to the petitioners or the parties to the PPA to
approach the Commission in terms of Section 86 of the
Act, which deals with functions of the Commission.
Section 86 of the Act reads as follows:
"86. Functions of State Commission:- (1)
The State Commission shall discharge the
following functions, namely:-
(a) determine the tariff for
generation, supply, transmission and
wheeling of electricity, wholesale, bulk or
retail, as the case may be, within the
State:
Provided that where open access
has been permitted to a category of
consumers under section 42, the State
Commission shall determine only the
wheeling charges and surcharge thereon,
if any, for the said category of
consumers;
(b) regulate electricity purchase
and procurement process of
distribution licensees including the
price at which electricity shall be
procured from the generating
companies or licensees or from other
sources through agreements for
purchase of power for distribution
and supply within the State;
(c) facilitate intra-State
transmission and wheeling of electricity;
(d) issue licences to persons
seeking to act as transmission licensees,
distribution licensees and electricity
traders with respect to their operations
within the State;
(e) promote co-generation and
generation of electricity from renewable
sources of energy by providing suitable
measures for connectivity with the grid
and sale of electricity to any person, and
also specify, for purchase of electricity
from such sources, a percentage of the
total consumption of electricity in the area
of a distribution licensee;
(f) adjudicate upon the disputes
between the licensees, and generating
companies and to refer any dispute for
arbitration;
(g) levy fee for the purposes of this
Act;
(h) specify State Grid Code
consistent with the Grid Code specified
under clause (h) of sub-section (1) of
section 79;
(i) specify or enforce standards with
respect to quality, continuity and
reliability of service by licensees;
(j) fix the trading margin in the
intra-State trading of electricity, if
considered, necessary; and
(k) discharge such other functions
as may be assigned to it under this Act.
(2) The State Commission shall advise the
State Government on all or any of the following
matters, namely :-
(i) promotion of competition, efficiency
and economy in activities of the
electricity industry;
(ii) promotion of investment in
electricity industry;
(iii) reorganization and restructuring of
electricity industry in the State;
(iv) matters concerning generation,
transmission , distribution and
trading of electricity or any other
matter referred to the State
Commission by that Government.
(3) The State Commission shall ensure
transparency while exercising its powers and
discharging its functions.
(4) In discharge of its functions, the State
Commission shall be guided by the National
Electricity Policy, National Electricity Plan and
tariff policy published under Section 3."
(Emphasis supplied)
Functions of the Commission as depicted under Section
86 of the Act confer manifold jurisdiction on it and one
of which, undoubtedly is the controversy in the case at
hand.
33. On a plain reading of Section 86 of the Act,
action of the Commission was without jurisdiction to
have solicited cases. But, the obligation of the parties to
the PPA is to approach the Commission for redressal of
the controversy. Though it is not a dispute as defined
under Section 86(1)(b) of the Act, it is the power of the
Commission to regulate the price of sale and purchase
of electricity under Section 86(1)(b) of the Act from
generating company and distribution of licensees
through agreements i.e, PPA.
34. It is apposite to notice the judgment of the
Apex Court in the case of ALL INDIA POWER
ENGINEER FEDERATION AN OTHERS v. SASAN
POWER LIMITED12 wherein the Apex Court holds as
follows:
"25. It is thus clear that if there is any
element of public interest involved, the court
(2017) 1 SCC 487
steps in to thwart any waiver which may be
contrary to such public interest.
26. On the facts of this case, it is clear
that the moment electricity tariff gets
affected, the consumer interest comes in
and public interest gets affected. This is in
fact statutorily recognised by the Electricity Act
in Sections 61 to 63 thereof. Under Section 61,
the appropriate Commission, when it specifies
terms and conditions for determination of tariff,
is to be guided inter alia by the safeguarding of
the consumer interest and the recovery of the
cost of electricity in a reasonable manner. For
this purpose, factors that encourage competition,
efficiency and good performance are also to be
heeded. Under Section 62 of the Act, the
appropriate Commission is to determine
such tariff in accordance with the
principles contained in Section 61. The
present case, however, is covered by Section 63,
which begins with a non obstante clause stating
that notwithstanding anything contained in
Section 62, the appropriate Commission shall
adopt the tariff if such tariff has been
determined through a transparent process of
bidding in accordance with the Guidelines
issued by the Central Government. The
Guidelines dated 19-1-2005 issued by the
Central Government under Section 63 make it
clear that such Guidelines are framed with the
following objectives in mind:
"These Guidelines have been framed under
the above provisions of Section 63 of the Act. The
specific objectives of these Guidelines are as
follows:
(1) Promote competitive procurement of
electricity by distribution licensees;
(2) Facilitate transparency and fairness in
procurement processes;
(3) Facilitate reduction of information
asymmetries for various bidders;
(4) Protect consumer interests by facilitating
competitive conditions in procurement of
electricity;
(5) Enhance standardisation and reduce
ambiguity and hence time for materialisation of
projects;
(6) Provide flexibility to suppliers on internal
operations while ensuring certainty on
availability of power and tariffs for buyers.
xx xx xx xx
31. All this would make it clear that even if
a waiver is claimed of some of the provisions of
the PPA, such waiver, if it affects tariffs that are
ultimately payable by the consumer, would
necessarily affect public interest and would have
to pass muster of the Commission under
Sections 61 to 63 of the Electricity Act. This is
for the reason that what is adopted by the
Commission under Section 63 is only a
tariff obtained by competitive bidding in
conformity with Guidelines issued. If at any
subsequent point of time such tariff is
increased, which increase is outside the
four corners of the PPA, even in cases
covered by Section 63, the legislative intent
and the language of Sections 61 and 62
make it clear that the Commission alone
can accept such amended tariff as it would
impact consumer interest and therefore
public interest.
(Emphasis supplied)
The Apex Court in the afore-extracted judgment
considered power of the regulatory commission and the
change in the agreements which cannot pass muster
without the Commission being privy to such change.
35. The Apex Court, little earlier to the afore-
extracted judgment, in the case of GUJARAT URJA
VIKAS NIGAM LIMITED v. TARINI INFRASTURE
LIMITED13 has held as follows:
"17. As already noticed, Section
86(1)(b) of the Act empowers the State
Commission to regulate the price of sale
and purchase of electricity between the
generating companies and distribution
licensees through agreements for power
produced for distribution and supply. As
(2016) 8 SCC 743
held by this Court in V.S. Rice & Oil Mills v. State
of A.P. [V.S. Rice & Oil Mills v. State of A.P., AIR
1964 SC 1781], K. Ramanathan v. State of
T.N. [K. Ramanathan v. State of T.N., (1985) 2
SCC 116: 1985 SCC (Cri) 162] and D.K. Trivedi
& Sons v. State of Gujarat [D.K. Trivedi &
Sons v. State of Gujarat, 1986 Supp SCC 20] the
power of regulation is indeed of wide import. The
following extracts from the reports in the above
cases would illuminate the issue:
17.1.V.S. Rice & Oil Mills v. State of
A.P. [V.S. Rice & Oil Mills v. State of A.P., AIR
1964 SC 1781]: (AIR p. 1787, para 20)
"20. Then it was faintly argued by
Mr Setalvad that the power to regulate
conferred on the respondent by Section
3(1) cannot include the power to increase
the tariff rate; it would include the power
to reduce the rates. This argument is
entirely misconceived. The word
"regulate" is wide enough to confer
power on the respondent to regulate
either by increasing the rate, or
decreasing the rate, the test being
what is it that is necessary or
expedient to be done to maintain,
increase, or secure supply of the
essential articles in question and to
arrange for its equitable distribution
and its availability at fair prices."
17.2.K. Ramanathan v. State of T.N. [K.
Ramanathan v. State of T.N., (1985) 2 SCC 116 :
1985 SCC (Cri) 162] : (SCC pp. 130-31, paras
18-19)
"18. The word "regulation" cannot
have any rigid or inflexible meaning as to
exclude "prohibition". The word "regulate"
is difficult to define as having any precise
meaning. It is a word of broad import,
having a broad meaning, and is very
comprehensive in scope. There is a
diversity of opinion as to its meaning and
its application to a particular state of facts,
some courts giving to the term a somewhat
restricted, and others giving to it a liberal,
construction. The different shades of
meaning are brought out in Corpus Juris
Secundum, Vol. 76 at p. 611:
'"Regulate" is variously defined
as meaning to adjust; to adjust, order,
or govern by rule, method, or
established mode; to adjust or control
by rule, method, or established mode,
or governing principles or laws; to
govern; to govern by rule; to govern by,
or subject to, certain rules or
restrictions; to govern or direct
according to rule; to control, govern,
or direct by rule or regulations.
"Regulate" is also defined as
meaning to direct; to direct by rule or
restriction; to direct or manage
according to certain standards, laws,
or rules; to rule; to conduct; to fix or
establish; to restrain; to restrict.'
See also: Webster's Third New International
Dictionary, Vol. II, p. 1913 and Shorter Oxford
Dictionary, Vol. II, 3rd Edn., p. 1784.
19. It has often been said that the
power to regulate does not necessarily
include the power to prohibit, and
ordinarily the word "regulate" is not
synonymous with the word "prohibit". This
is true in a general sense and in the sense
that mere regulation is not the same as
absolute prohibition. At the same time, the
power to regulate carries with it full power
over the thing subject to regulation and in
absence of restrictive words, the power
must be regarded as plenary over the
entire subject. It implies the power to rule,
direct and control, and involves the
adoption of a rule or guiding principle to be
followed, or the making of a rule with
respect to the subject to be regulated. The
power to regulate implies the power to
check and may imply the power to prohibit
under certain circumstances, as where the
best or only efficacious regulation consists
of suppression. It would therefore appear
that the word "regulation" cannot have any
inflexible meaning as to exclude
"prohibition". It has different shades of
meaning and must take its colour from the
context in which it is used having regard to
the purpose and object of the legislation,
and the Court must necessarily keep in
view the mischief which the legislature
seeks to remedy."
(Emphasis supplied)
The role of the Commission and its power to regulate is
delineated in the aforementioned judgments. In the
light of the judgments of the Apex Court, the
Commission cannot be kept in the dark when the effect
is amendment to the PPA. Therefore, I decline to accept
the contention of the learned counsel for the petitioners
that the Commission has no jurisdiction to entertain the
dispute.
36. Insofar as the contention that alternative
remedy of appeal is to be filed by the petitioners in
terms of Section 111 of the Act is concerned, the issue
need not merit any consideration, in the light of
preceding analysis with regard to action of the
Commission being vitiated and the jurisdiction of the
Commission being upheld. The contention of filing an
appeal before the Appellate Authority in terms of
Section 111 of the Act is not gone into.
37. For the foregoing reasons, I hold that the
action of the Commission in soliciting petitions to be
filed before it after having pre-judged the issue is in
violation of every known canon of principles of natural
justice and is vitiated by bias; the jurisdiction of the
Commission cannot be taken away on the plea of the
petitioners that parties cannot confer jurisdiction;
parties have not conferred jurisdiction, the jurisdiction
is conferred by the Act and the PPA between the parties.
38. In the result, I pass the following:
ORDER
(a) All the writ petitions are allowed, the
impugned orders passed by the Commission
in all these cases stand quashed.
(b) These matters are remitted back to the
hands of the Commission for appropriate
resolution of the dispute bearing in mind the
observations made in the course of the order
with regard to the controversy brought
before it.
(c) The Commission shall also consider all
subsequent events that have taken place
after passage of the impugned orders, while
passing orders afresh, in the case now
remitted.
(d) Parties to the lis are at liberty to place on
record all such documents that would
advance their cause.
(e) The Commission shall consider the claims of
the petitioners and pass appropriate orders
within six months from the date of receipt of
a copy of this order.
(f) Interim orders granted and subsisting, if
any, in all these cases shall continue to
operate till the Commission takes up the
case for consideration of an interim prayer, if
sought for by the petitioners.
(g) All the contentions, except the ones decided
in this order, of both the parties are kept
open.
Sd/-
JUDGE
bkp
CT:MJ
