Karnataka High Court
Jsw Energy Limited vs State Of Karnataka on 6 November, 2023
Bench: Chief Justice, Krishna S Dixit
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WA No. 1358 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT APPEAL NO. 1358 OF 2023 (GM-KEB)
BETWEEN:
1. JSW ENERGY LIMITED
HAVING ITS REGISTERED OFFICE AT JSW CENTRE,
BANDRA KURLA COMPLEX,
BANDRA (EAST), MUMBAI CITY,
MUMBAI-400 051.
REPRESENTED BY ITS GENERAL MANAGER,
MR. G. SAM DEVADHAS.
...APPELLANT
(BY SRI MUKUL ROHTAGI &
SRI K.G. RAGHAVAN, SENIOR ADVOCATES FOR
SRI ADITYA NARAYAN,ADVOCATE)
AND:
Digitally signed
by AMBIKA H B
Location: HIGH 1. STATE OF KARNATAKA
COURT OF DEPARTMENT OF ENERGY,
KARNATAKA 2ND FLOOR, VIKASA SOUDHA,
AMBEDKAR VEEDHI,
BENGALURU-560 001,
REPRESENTED BY THE
ADDITIONAL CHIEF SECRETARY.
2. KARNATAKA POWER
KARNATAKA POWER TRANSMISSION CORPORATION
LIMITED (STATE LOAD DISPATCH CENTRE)
27/1, RACE COURSE ROAD,
MADHAVA NAGAR, GANDHI NAGAR,
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WA No. 1358 of 2023
BENGALURU-560 001,
REPRESENTED BY ITS CHIEF ENGINEER.
3. KARNATAKA POWER CORPORATION LIMITED
SHAKTI BHAVAN,
82, RACE COURSE ROAD,
BANGALORE-560 001,
REPRESENTED - 560 001
BY ITS DIRECTOR.
4. POWER COMPANY OF KARNATAKA LIMITED
5TH FLOOR, KPTCL BUILDING,
CAUVERY BHAVAN,
BENGALURU-560 009,
REPRESENTED BY ITS DIRECTOR.
5. UNION OF INDIA
THROUGH MINISTRY OF POWER
SHRAM SHAKTI BHAWAN,
RAFI MARG,
NEW DELHI-110 001.
REPRESENTED BY ITS SECRETARY.
...RESPONDENTS
(BY SRI SHASHI KIRAN SHETTY ADVOCATE GENERAL A/W
SMT. NILOUFER AKBAR, AGA FOR R1,
SRI SRIRANGA, SENIOR ADVOCATES FOR
SMT. SUMANA NAGANAND, ADVOCATE FOR C/R-2,
SRI ARAVIND KAMATH, ASGI FOR R-5)
THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
IMPUGNED INTERIM ORDER DATED 27/10/2023 PASSED BY
THE LEARNED SINGLE JUDGE IN W.P. NO.23642/2023 AND
CONSEQUENTLY GRANT THE INTERIM RELIEF PRAYED FOR BY
THE APPELLANT IN WRIT PETITION BEARING
W.P.NO.23642/2023 & ETC.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
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JUDGMENT
This intra-Court appeal has been filed challenging the
interim order dated 27.10.2023 passed by a learned Single
Judge of this Court in the pending case namely,
W.P.No.23642/2023. The appellants happen to be the writ
petitioners.
2. A perusal of the impugned order shows that
initially, the writ petition was listed before the learned Single
Judge on 26.10.2023 and it was adjourned by a day i.e. to
27.10.2023 for orders. On the said day, the learned Single
Judge recorded the preliminary submissions of the learned
counsel appearing for the appellant and declined to grant any
ad interim relief, despite urgement.
3. The learned counsel for the parties have raised their
rival contentions on the issue as to who has to fix the purchase
price for the electric power produced by the appellant; in other
words, whether such a fixation has to be done either by the
State Regulatory Commission or the Central Regulatory
Commission. Learned Senior Advocates appearing for the
appellant submit that the appellant had offered to sell the
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WA No. 1358 of 2023
power at the rate of Rs.7.25 KWh (Ex-Bus) and this was way
back in August, 2023. Since then, much time has lapsed and
therefore, the proposal is revised to higher rate. They also
highlight the higher rates which they will get from the market
in terms of the Central Government Directive that has been
extended till 30.06.2024 vide communication dated
20.12.2023. They hastened to add that the State Government
& the State Regulatory Commission do not have any
competence in the matter, which ease in the domain of Central
Regulatory Commission. So contending, they seek grant of
interim order as prayed for in the writ petition specifically
pointing out that the extension of the directive has been lost
sight of by the learned Single Judge, though it was filed by a
memo dated 26.10.2023.
4. Per contra, learned Advocate General appearing for
the State and the learned Senior Panel Counsel appearing for
the State Regulatory Commission oppose contending that what
is payable is Rs.4.86 KWh (Ex-Bus); though the power
commodity may belong to the ownership of a private party, the
scheme of the Electricity Act, 2003 more particularly, the
provisions of Section 11 provide for compulsory purpose at the
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rate to be fixed by the State Regulatory Commission itself.
That being the position, the appellant should continue to supply
the power at the rate of Rs.4.86 KWh (Ex-Bus) till after and
subject to outcome of the pending writ petition. Learned
Advocate General adds that, the State would file its Statement
of Objections in the writ petition within three days and would
cooperate in its hearing and final disposal and therefore, no
interim relief be granted to the appellant. With these
contentions, dismissal of the writ appeal is pressed for.
5. Having heard the learned counsel for the parties
and having perused the appeal papers, we are inclined to grant
a conditional indulgence in the matter without much
undertaking the critical examination of the issues advanced
before us inasmuch as all those can be addressed by the
learned Single Judge in the pending writ petition. There is an
assurance from the side of the learned Advocate General that
the pleadings in the writ petition would be completed within
three days. Suffice it to say that this appeal can be disposed of
by requesting the learned Single Judge to hear & dispose off
the subject writ petition on a war footing and in the meanwhile,
there should be some short interim arrangement in the fitness
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of things so that no prejudice will be done to any of the stake
holders.
Accordingly, this writ appeal is disposed off with the
following directions:
(i) The State Government is granted time to file its
statement of objections/reply affidavit to the
writ petition on or before Friday (10.11.2023);
(ii) The learned Single Judge is requested to decide
the writ petition preferably within one week.
All contentions of both the sides/parties
including the one relating to the fixation of
power purchase rate, are kept open to be urged
in the writ petition;
(iii) Pending and subject to a final decision in the
petition, the appellant shall continue to supply
the power at the rate of Rs.7.25 KWh (Ex-Bus)
as per its own offer made in the communication
dated 11.08.2023 that was sent to the State
Government.
(iv) Needless to state that the rate of power that
is Rs.7.25 KWh (Ex-Bus) which we have
tentatively fixed above, would be subject to
final outcome of the writ petition.
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The ad interim arrangement as made above, shall be
confined to the parties to the writ appeal and that we do not
intend to make it a binding precedent in other like matters, if
any.
An authenticated copy of this order be made available to
all the learned advocates appearing for the parties on record.
Costs made easy.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
KPS
