Allowed

M/S. Eastman International v. State

Karnataka HC13 Mar 2019WP/23696/2018

Case brief

AI extract

What is this about?

Renewable energy generators challenged a KERC order of 14 May 2018 withdrawing wheeling and banking charge exemptions promised for ten years. The High Court held the writ petitions maintainable, found the withdrawal hit by promissory estoppel and Article 14 and lacking jurisdiction absent a regulation under Section 181, and quashed the order.

What did the court decide?

All the writ petitions are allowed; the impugned order dated 14.05.2018 issued by the KERC, Bengaluru is quashed; no order as to costs.

M/S. Eastman International Vs State — Constitutional and Fundamental Rights | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF MARCH, 2019

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BEFORE

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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W.P.Nos.23158 – 23162/2018 & 23449 – 23457/2018,

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C/W

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W.P.No.22838/2018, W.P.Nos.22841 – 22842/2018

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W.P.Nos.23069 – 23070/2018, W.P.Nos.23078 & 23119/2018, W.P.Nos.23080 & 23118/2018,

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W.P.No.23085/2018,

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W.P.Nos.23086 & 23116/2018, W.P.Nos.23108 – 23109/2018, W.P.No.23242/2018, W.P.No.23696/2018, W.P.No.23700/2018, W.P.No.23851/2018, W.P.Nos.23990 – 23995/2018, W.P.Nos.24248 – 24259/2018, W.P.No.25090/2018, W.P.No.26480/2018, W.P.No.28622/2018, W.P.No.53531/2018 AND W.P.No.39329/2018 (GM – KEB)

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IN W.P.Nos.23158 – 23162/2018 & 23449 – 23457/2018:

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BETWEEN :

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RENEW POWER LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT 138, ANSAL CHAMBERS-II, BHIKAJI CAMA PLACE, DELHI-110066 REP. BY ITS MANAGER.

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RENEW SAUR URJA PRIVATE LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 2013 HAVING ITS REGISTERED

¶16

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OFFICE AT 138, ANSAL CHAMBERS-II, BHIKAJI CAMA PLACE, DELHI-110066 REP BY ITS MANAGER. 3. RENEW WIND ENERGY (BUDH 3) PRIVATE LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT 138, ANSAL CHAMBERS-II, BHIKAJI CAMA PLACE, DELHI-110066 REP BY ITS MANAGER. 4. RENEW SAUR VIDYUT PRIVATE LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT 138, ANSAL CHAMBERS-II, BHIKAJI CAMA PLACE, DELHI-110066 REP. BY ITS MANAGER. 5. RENEW WIND ENERGY (KARNATAKA) PRIVATE LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT 138, ANSAL CHAMBERS-II, BHIKAJI CAMA PLACE, DELHI-110066 REP. BY ITS MANAGER. 6. RENEW WIND ENERGY (AP) PRIVATE LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT 138, ANSAL CHAMBERS-II, BHIKAJI CAMA PLACE, DELHI-110066 REP. BY ITS MANAGER. 7. CLEAN MAX ENVIRO ENERGY SOLUTIONS PRIVATE LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED

¶18

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OFFICE AT 33, ASHOKA APTS, RUNGTA LANE, NEPEAN SEA ROAD, MUMBAI-400006 REP BY ITS HEAD, BUSINESS DEVELOPMENT (SOUTH INDIA)

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CLEAN MAX POWER PROJECTS PRIVATE LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT 16, 1^ST FLOOR, PRABHADEVI INDUSTRIAL ESTATE, VEER SAVARKAR ROAD, PRABHADEVI, MUMBAI-400025 REP. BY ITS HEAD, BUSINESS DEVELOPMENT (SOUTH INDIA)

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CLEANMAX IPP2 PRIVATE LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT 13 A, FLOOR-13, PLOT-400, THE PEREGRINE APARTMENT, KISMAT CINEMA, PRABHADEVI, MUMBAI 400025 REP. BY ITS HEAD, BUSINESS DEVELOPMENT (SOUTH INDIA) 10. CLEAN MAX MERCURY POWER PRIVATE LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT 13 A, FLOOR-13, PLOT-400, THE PEREGRINE APARTMENT, KISMAT CINEMA, PRABHADEVI, MUMBAI-400025 REP. BY ITS HEAD, BUSINESS DEVELOPMENT (SOUTH INDIA) 11. CLEAN MAX PHOTOVOLTAIC PRIVATE LIMITED A COMPANY REGISTERED UNDER

¶22

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THE PROVISIONS OF THE COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT 13 A, FLOOR-13, PLOT-400, THE PEREGRINE APARTMENT, KISMAT CINEMA, PRABHADEVI, MUMBAI-400025 REP. BY ITS HEAD, BUSINESS DEVELOPMENT (SOUTH INDIA) 12. RFE BELGAUM SOLAR PRIVATE LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT D-43, JANPATH, SHYAM NAGAR, JAIPUR, RAJASTHAN-302019 REP. BY ITS DIRECTOR 13. AMP SOLAR SOLUTION PRIVATE LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT 309, THIRD FLOOR, RECTANGLE ONE, BEHIND SHERATON HOTEL, SAKET, NEW DELHI - 110017 REP. BY ITS DIRECTOR 14. BAGMANE GREEN POWER LLP A LIMITED LIABILITY PARTNERSHIP INCORPORATED UNDER THE PROVISIONS OF THE LIMITED LIABILITY PARTNERSHIP ACT, 2008 HAVING ITS REGISTERED OFFICE AT A BLOCK, 8^TH FLOOR, LAKE VIEW BUILDING, BAGMANE TECH PARK, C V RAMAN NAGAR, BENGALURU-560093. ...PETITIONERS (BY SRI ADITYA SONDHI, SENIOR ADV. FOR SRI KUSUM RANGANATH, ADV.)

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AND :

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1.	BANGALORE ELECTRICITY SUPPLY COMPANY LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT K.R. CIRCLE, BENGALURU-560001 (REP BY ITS MANAGING DIRECTOR)
2.	CHAMUNDESHWARI ELECTRICITY SUPPLY CORPORATION LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.29, KAVERI GRAMEENA BANK ROAD, HINKAL, VIJAYANAGAR 2^NDSTAGE, MYSURU-570019 (REP BY ITS MANAGING DIRECTOR)
3.	MANGALORE ELECTRICITY SUPPLY COMPANY LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT MESCOM BHAVANA, KAVOOR CROSS ROAD, BEJAI, MANGALURU-570004 (REP BY ITS MANAGING DIRECTOR)
4.	HUBLI ELECTRICITY SUPPLY COMPANY LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT P.B. ROAD, NAVANAGAR, HUBBALI-580025 (REP. BY ITS MANAGING DIRECTOR)
5.	GULBARGA ELECTRICITY
	SUPPLY COMPANY LTD., A COMPANY REGISTERED UNDER

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THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT STATION ROAD, KALABURAGI - 585101 (REP BY ITS MANAGING DIRECTOR)

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KARNATAKA POWER TRANSMISSION CORPORATION LTD., COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT KAVERI BHAVAN, K.G.ROAD, BENGALURU-560009 (REP BY ITS MANAGING DIRECTOR)

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KARNATAKA ELECTRICITY REGULATORY COMMISSION NO.16, C-1, MILLERS TANK BED AREA, VASANTH NAGAR, BENGALURU - 560052 …RESPONDENTS

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(BY SRI SHAHBAAZ HUSSAIN, ADV. FOR R-1; SRI S.S.NAGANAND, SENIOR ADV. FOR SRI S.SRIRANGA, ADV. FOR R-2 & R-5; SMT.M.C.NAGASHREE, ADV. FOR R-3; SRI MURUGESH V. CHARATI, ADV. FOR R-4; SRI H.V.DEVARAJU, ADV. FOR R-6; SRI B.N.PRAKASH, ADV. FOR M/s LAWYER INC. FOR R-7.)

¶32

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER, DATED 14.05.2018, PASSED BY THE RESPONDENT NO.7 (PRODUCED HEREIN AS ANNEXURE AC).

¶33

IN W.P.No.22838/2018:

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BETWEEN :

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AVAADA SUSTAINABLE ENERGY PRIVATE LIMITED (KERC) HAVING ITS CORPORATE OFFICE AT: 3^RD FLOOR, PTI BUILDING,

¶36

¶37

4, PARLIAMENT STREET, NEW DELHI - 110001. (REP. THROUGH ITS AUTHORIZED SIGNATORY Mr. PRABHAT KUMAR. HAVING ITS REGISTERED OFFICE AT: HUBTOWN, SOLARIS, 4^TH FLOOR, 406, N.S. PHADKE MARG, ANDHERI, MUMBAI - 400069. MAHARASHTRA. ...PETITIONER (BY SRI PRABHULING K. NAVADGI, SENIOR ADV. FOR SRI RAJESHWARA P.N., ADV.)

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AND :

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STATE OF KARNATAKA THROUGH ITS DEPUTY SECRETARY, ENERGY DEPARTMENT, VIKASA SOUDHA, BENGALURU-01. 2. KARNATAKA ELECTRICITY REGULATORY COMMISSION (KERC) REP. THROUGH ITS SECRETARY, AT NO.16, C-1, MILLERS TANK BED AREA, VASANTH NAGAR, BENGALURU - 560052 KARNATAKA.

¶40

KARNATAKA POWER TRANSMISSION CORPORATION LIMITED (KPTCL), A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, REP. THROUGH ITS MANAGING DIRECTOR, HAVING ITS REGISTERED OFFICE AT: KAVERI BHAWAN, KEMPEGOWDA ROAD, BANGALORE – 560009, KARNATAKA.

¶41

BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM) A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, REP. THROUGH ITS MANAGING DIRECTOR,

¶42

¶43

HAVING ITS REGISTERED OFFICE AT: KR. CIRCLE, BANGALORE-560001, KARNATAKA. 5. MANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (MESCOM) A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, REP. THROUGH ITS MANAGING DIRECTOR, HAVING ITS REGISTERED OFFICE AT: PARADIGM PLAZA, A B SHETTY CIRCLE, MANGALORE- 575001, KARNATAKA. 6. CHAMUNDESHWARI ELECTRICITY SUPPLY CORPORATION LIMITED (CESC, MYSORE) A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, REP. THROUGH ITS MANAGING DIRECTOR, HAVING ITS REGISTERED OFFICE AT: NO.29, VIJAYANAGARA 2^ND STAGE, HINAKAL, MYSORE-570017 7. GULLBARGA ELECTRICITY SUPPLY COMPANY LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, REP. THROUGH ITS MANAGING DIRECTOR, HAVING ITS REGISTERED OFFICE AT: STATION ROAD, KALABURAGI - 585102 KARNATAKA. 8. HUBLI ELECTRICITY SUPPLY COMPANY LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, REP. THROUGH ITS MANAGING DIRECTOR, HAVING ITS REGISTERED OFFICE AT: NAVANAGAR, HUBLI-580025 KARNATAKA. …RESPONDENTS (BY SMT.JYOTHI M., AGA FOR R-1; SRI B.N.PRAKASH, ADV. FOR R-2;

¶44

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SRI S.S.NAGANAND, SENIOR ADV. FOR SRI S.SRIRANGA,

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ADV.FOR R-3, R-4 & R-7; SRI MURUGESH V. CHARATI, ADV. FOR R-8; R-5 & R-6 ARE SERVED, BUT UNREPRESENTED.)

¶47

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH IMPUGNED ORDER DATED 14.05.2018 (ANNEXURE-A) PASSED BY RESPONDENT NO.2 COMMISSION IN SO FAR AS PETITIONER IS CONCERNED.

¶48

IN W.P.Nos.22841 – 22842/2018:

¶49

BETWEEN :

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M/s EMBASSY ENERGY PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 2013, HAVING ITS REGISTERED OFFICE AT 1^ST FLOOR, EMBASSY POINT, NO.150, INFANTRY ROAD, BANGALORE-560001 REP. BY ITS AUTHORISED SIGNATORY Mr. P.R.RAMA KRISHNAN.

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PRADEEP NENUMAL LALA S/O NENUMAL LALA, AGED ABOUT 55 YEARS, R/AT OCEAN VIEW, ABDUL GAFFAR KHAN ROAD, WORLI, MUMBAI-400018.

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...PETITIONERS

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(BY SRI N.VENKATARAMAN, SENIOR COUNSEL FOR SRI SURAJ GOVINDA RAJ, ADV.)

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AND :

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STATE OF KARNATAKA REP. BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT (ENERGY DEPARTMENT) VIKASA SOUDHA, BANGALORE-560001.

¶56

10 -

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KARNATAKA ELECTRICITY REGULATORY COMMISSION (KERC) NO.16, C-1, MILLERS TANK BED AREA, VASANTHNAGAR, BANGALORE-560052. (REP. BY ITS CHAIRMAN) 3. BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM), A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT K.R.CIRCLE, BENGALURU-560001. (REP BY ITS MANAGING DIRECTOR) 4. GULBARGA ELECTRICITY SUPPLY COMPANY LIMITED (GESCOM), A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT STATION ROAD, KALABURAGI-585101 (REP. BY ITS MANAGING DIRECTOR) 5. KARNATAKA POWER TRANSMISSION CORPORATION LIMITED (KPTCL) A COMAPNY REGISTRED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT KAVERI BHAVAN, K.G.ROAD, BENGALURU-560009. (REP. BY ITS MANAGING DIRECTOR) …RESPONDENTS

¶58

(BY SMT.JYOTHI M., AGA FOR R-1; SRI B.N.PRAKASH, ADV. FOR M/s LAWYERS INC. FOR R-2; SRI SHAHBAAZ HUSSAIN, ADV. FOR R-3; SRI MURUGESH V. CHARATI, ADV. FOR R-4; SMT.M.C.NAGASHREE, ADV. FOR R-5.)

¶59

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 14.05.2018 PASSED BY THE 2^ND RESPONDENT-KARNATAKA ELECTRICITY REGULATORY COMMISSION, BENGALURU, VIDE ANNEXURE-A.

¶60

11 -

¶61

IN W.P.Nos.23069 – 23070/2018:

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BETWEEN :

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INR ENERGY VENTURES AS PARTNERSKHIP FIRM REGISTERED UNDER THE PARTNERSHIP ACT, 1932, HAVING ITS REGISTERED OFFICE AT: "THE FALCON HOUE", NO.1, MAIN GUARD CROSS ROAD, BANGALORE-560001. KARNATAKA, REP. BY ITS AUTHORISED SIGNATORY, Ms. KHIZRA ATIQUE BANDUKWALA 2. Mr. VENKATA NARAYANA KONANKI S/O VENKATAIAH KONANKI, AGED ABOUT 38 YEARS, R/AT 2011, EMBASSY HABITAT, PALACE CROSS ROAD, VASANTH NAGAR, BANGALORE-560052, KARNATAKA ...PETITIONERS

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(BY SRI SURAJ GOVINDA RAJ, ADV.)

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AND :

¶66

STATE OF KARNATAKA REP. BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT (ENERGY DEPARTMENT) VIKASA SOUDHA, BANGALORE-560001. 2. KARNATAKA ELECTRICITY REGULATORY COMMISSION (KERC) NO.16, C-1, MILLERS TANK BED AREA, VASANTHNAGAR, BANGALORE-560052. (REP. BY ITS CHAIRMAN)

¶67

BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM) A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED

¶68

12 -

¶69

OFFICE AT K.R.CIRCLE, BENGALURU-560001. (REP. BY ITS MANAGING DIRECTOR)

¶70

GULBARGA ELECTRICITY SUPPLY COMPANY LIMITED (GESCOM) A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT STATION ROAD, KALBURAGI-585101 (REP. BY ITS MANAGING DIRECTOR)

¶71

KARNATAKA POWER TRANSMISSION CORPORATION LIMITED (KPTCL) A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT KAVERI BHAVAN, K.G. ROAD, BENGALURU-560009, REP. BY ITS MANAGING DIRECTOR. …RESPONDENTS

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(BY SMT.JYOTHI M., AGA FOR R-1; SRI B.N.PRAKASH, ADV. FOR R-2; SRI SHAHBAAZ HUSSAIN, ADV. FOR R-3 & R-5; SRI NIKHILESH RAO, ADV. FOR R-5.)

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THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 14.05.2018 PASSED BY THE 2^ND RESPONDENT – KARNATAKA ELECTRICITY REGULATORY COMMISSION, BENGALURU, VIDE ANNEXURE-A.

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IN W.P.Nos.23078 & 23119/2018:

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BETWEEN :

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M/s MAMADAPUR SOLAR PRIVATE LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 2013, HAVING ITS REGISTERED OFFICE AT:

¶77

13 -

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D-43, 2^ND FLOOR, JANPATH, SHYAM NAGAR, SODALA, JAIPUR, RAJASTHAN - 302019. REP. BY ITS AUTHORISED SIGNATORY Mrs. KHIZRA ATIQUE BANDUKWALA 2. Mr. VENKATA NARAYANA KONANKI S/O VENKATAIAH KONANKI, AGED ABOUT 38 YEARS R/AT 2011, EMBASSY HABITAT, PALACE CROSS ROAD, VASANTH NAGAR, BANGALORE - 560052 KARNATAKA. ...PETITIONERS (BY SRI N.VENKATARAMAN, SENIOR ADV. FOR SRI SURAJ GOVINDA RAJ, ADV.) AND : 1. STATE OF KARNATAKA REP. BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT (ENERGY DEPARTMENT), VIKASA SOUDHA, BANGALORE - 560001. 2. KARNATAKA ELECTRICITY REGULATORY COMMISSION (KERC) NO.16, C-1, MILLERS TANK BED AREA, VASANTHNAGAR, BANGALORE - 560052. (REP. BY ITS CHAIRMAN), 3. BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM), A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT K.R. CIRCLE, BENGALURU - 560001 (REP. BY ITS MANAGING DIRECTOR) 4. HUBLI ELECTRICITY SUPPLY COMPANY LIMITED (HESCOM), A COMPANY REGISTERED UNDER THE

¶79

14 -

¶80

PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT P.B. ROAD, NAVANAGAR, HUBBALI - 580025. (REP. BY ITS MANAGING DIRECTOR)

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KARNATAKA POWER TRANSMISSION CORPORATION LIMITED (KPTCL), A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT KAVERI BHAVAN, K.G. ROAD, BENGALURU - 560009. (REP. BY ITS MANAGING DIRECTOR) …RESPONDENTS

¶82

(BY SMT.JYOTHI M., AGA FOR R-1; SRI B.N.PRAKASH, ADV. FOR R-2; SRI SHAHBAAZ HUSSAIN, ADV. FOR R-3; SMT.M.C.NAGASHREE, ADV. FOR R-5.)

¶83

¶84

IN W.P.Nos.23080 & 23118/2018:

¶85

BETWEEN :

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M/s BELGAUM SOLAR POWER PRIVATE LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 2013, HAVING ITS REGISTERED OFFICE AT: D-43, 2^ND FLOOR, JANPATH, SHYAM NAGAR, SODALA, JAIPUR, RAJASTHAN-302019 REP. BY ITS AUTHORIZED SIGNATORY, Mrs. KHIZRA ATIQUE BANDUKWALA

¶87

Mr. VENKATA NARAYANA KONANKI S/O VENKATAIAH KONANKI,

¶88

15 -

¶89

AGED ABOUT 38 YEARS, R/AT NO.2011, EMBASSY HABITAT, PALACE CROSS ROAD, VASANTH NAGAR, BANGALORE-560052 KARNATAKA ...PETITIONERS (BY SRI N.VENKATARAMAN, SENIOR ADV. FOR SRI SURAJ GOVINDA RAJ, ADV.)

¶90

AND :

¶91

STATE OF KARNATAKA REP. BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT (ENERGY DEPARTMENT), VIKASA SOUDHA, BANGALORE - 560001. 2. KARNATAKA ELECTRICITY REGULATORY COMMISSION (KERC) NO.16, C-1, MILLERS TANK BED AREA, VASANTHNAGAR, BANGALORE - 560052. (REP. BY ITS CHAIRMAN), 3. BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM), A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT K.R. CIRCLE, BENGALURU - 560001 (REP. BY ITS MANAGING DIRECTOR) 4. HUBLI ELECTRICITY SUPPLY COMPANY LIMITED (HESCOM), A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT P.B. ROAD, NAVANAGAR, HUBBALI - 580025. (REP. BY ITS MANAGING DIRECTOR)

¶92

16 -

¶93

KARNATAKA POWER TRANSMISSION CORPORATION LIMITED (KPTCL), A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT KAVERI BHAVAN, K.G. ROAD, BENGALURU - 560009. (REP. BY ITS MANAGING DIRECTOR) …RESPONDENTS

¶94

(BY SMT.JYOTHI M., AGA FOR R-1; SRI B.N.PRAKASH, ADV. FOR R-2; SRI SHAHBAAZ HUSSAIN, ADV. FOR R-3 & R-5; SRI MURUGESH V. CHARATI, ADV. FOR R-4; SMT.M.C.NAGASHREE, ADV. FOR R-5.)

¶95

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 14.05.2018 PASSED BY THE 2ND RESPONDENT-KARNATAKA ELECTRICITY REGULATORY COMMISSION, BENGALURU, VIDE ANNEXURE-A;

¶96

IN W.P.No.23085/2018:

¶97

BETWEEN :

¶98

BELGAUM RENEWABLE ENERGY PRIVATE LIMITED (BREPL) HAVING ITS CORPORATE OFFICE AT E-5, DEFENCE COLONY NEW DELHI - 110 024 (REP. THROUGH ITS AUTHORIZED SIGNATORY Mr. ADITYA AGARWAL) HAVING ITS REGISTERED OFFICE AT D-43, JANPATH, SHYAM NAGAR JAIPUR, RAJASTHAN - 302019. ...PETITIONER

¶99

(BY SRI PRABHULING K. NAVADGI, SENIOR ADV. FOR SRI RAJESWARA P.N., ADV.)

¶100

AND :

¶101

STATE OF KARNATAKA THROUGH ITS DEPUTY SECRETARY, ENERGY DEPARTMENT,

¶102

17 -

¶103

VIKASA SOUDHA BENGALURU-560001.

¶104

KARNATAKA ELECTRICITY REGULATORY COMMISSION (KERC) REP THROUGH ITS SECRETARY AT NO.16, C-1, MILLERS TANK BED AREA, VASANTH NAGAR, BENGALURU - 560 052 KARNATAKA.

¶105

KARNATAKA POWER TRANSMISSION CORPORATION LIMITED (KPTCL) A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, REP. THROUGH ITS MANAGING DIRECTOR HAVING ITS REGISTERED OFFICE AT KAVERI BHAWAN, KEMPEGOWDA ROAD, BANGALORE - 560 009, KARNATAKA. 4. BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM) A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, REP. THROUGH ITS MANAGING DIRECTOR HAVING ITS REGISTERED OFFICE AT K.R. CIRCLE, BANGALORE KARNATAKA - 560 001. 5. MANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (MESCOM) A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 REP. THROUGH ITS MANAGING DIRECTOR HAVING ITS REGISTERED OFFICE AT PARADIGM PLAZA, A B SHETTY CIRCLE, MANGALORE, KARNATAKA - 575 001. 6. CHAMUNDESHWARI ELECTRICITY SUPPLY CORPORATION LIMITED (CESC, MYSORE) A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 REP THROUGH ITS MANAGING DIRECTOR

¶106

18 -

¶107

HAVING ITS REGISTERED OFFICE AT NO.29, VIJAYANAGARA 2^ND STAGE, HINAKAL, MYSURU-570017, KARNATAKA.

¶108

GULBARGA ELECTRICITY SUPPLY COMPANY LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 REP THROUGH ITS MANAGING DIRECTOR HAVING ITS REGISTERED OFFICE AT STATION ROAD, KALABURAGI - 585 102 KARNATAKA.

¶109

HUBLI ELECTRICITY SUPPLY COMPANY LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 REP THROUGH ITS MANAGING DIRECTOR HAVING ITS REGISTERED OFFICE AT NAVANAGAR, HUBBALLI KARNATAKA - 580025. …RESPONDENTS (BY SMT.JYOTHI M., AGA FOR R-1; SRI B.N.PRAKASH, ADV. FOR R-2; SRI SHAHBAAZ HUSSAIN, ADV. FOR R-3 & R-4; SRI S.S.NAGANAND, SENIOR ADV. FOR SRI S.SRIRANGA, ADV. FOR R-5, R-6 & R-8; SRI MURUGESH V. CHARATI, ADV. FOR R-7.)

¶110

¶111

IN W.P.Nos.23086 & 23116/2018:

¶112

BETWEEN :

¶113

MATRIX POWER (WIND) PRIVATE LIMITED HAVING ITS REGD. OFFICE AT #8-2-277/12, MCH NO.296, ROAD NO.3, UBI COLONY, BANJARA HILLS

¶114

19 -

¶115

HYDERABAD-500 034 REP BY ITS AUTHORISED SIGNATORY Mr. SHARAN B.

¶116

MATRIX GREEN ENERGY PRIVATE LIMITED HAVING ITS REGD. OFFICE AT # 8-2-277/12, MCH NO.296, ROAD NO.3, UBI COLONY, BANJARA HILLS, HYDERABAD-500 034, REP BY ITS AUTHORISED REP. Mr. NAVEEN KUMAR ...PETITIONERS

¶117

(BY SRI PRABHULING K. NAVADGI, SENIOR ADV. FOR SRI RAJESWARA P.N., ADV.)

¶118

AND :

¶119

KARNATAKA ELECTRICITY REGULATORY COMMISSION 37, M.G. ROAD, YELLAPPA GARDEN, YELLAPPA CHETTY LAYOUT, ULSOOR, BENGALURU, KARNATAKA-560 001 REP. BY ITS MANAGING DIRECTOR.

¶120

KARNATAKA POWER TRANSMISSION CORPORATION LTD., KAVERI BHAVAN, K.G. ROAD, BENGALURU-560 009 REP. BY ITS MANAGING DIRECTOR.

¶121

BENGALURU ELECTRICITY SUPPLY COMPANY LTD., K.R. ROAD, BENGALURU-560 001 REP. BY ITS MANAGING DIRECTOR.

¶122

HUBALLI ELECTRICITY SUPPLY COMPANY LTD., PB ROAD, DURGAD BAIL, NAVANAGAR, HUBBALLI-580 025 KARNATAKA REP. BY ITS MANAGING DIRECTOR.

¶123

20 -

¶124

GULBARGA ELECTRICITY SUPPLY COMPANY LTD., 48, SUPER MARKET MAIN ROAD, HALBARGA, BRHAMPUR KALABURAGI, KARNATAKA-585 10 REP. BY ITS MANAGING DIRECTOR. …RESPONDENTS

¶125

(BY SRI SHAHBAAZ HUSSAIN, ADV. FOR R-2 & R-3; R-1 SERVED, BUT UNREPRESENTED.)

¶126

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH IMPUGNED ORDER DATED 14.05.2018 (ANNEXURE-A) PASSED BY RESPONDENT NO.1 COMMISSION IN SO FAR AS PETITIONER IS CONCERNED.

¶127

IN W.P.Nos.23108 – 23109/2018:

¶128

BETWEEN :

¶129

M/s ATRIA SOLAR POWER (CHAMARAJANAGAR) PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 2013, HAVING ITS REGISTERED OFFICE AT NO.11, 1^ST FLOOR, COMMISSARIAT ROAD, BANGALORE - 560 027 (REP. BY ITS AUTHORISED REPRESENTATIVE Mr. ANAND LAHOTI)

¶130

Mr. C.S. SUNDER RAJU S/O LATE CHINNASWAMY RAJU AGED ABOUT 60 YEARS, R/AT 294, UPPER PALACE ORCHARDS SADASHIVANAGAR BANGALORE. ...PETITIONERS (BY SRI SURAJ GOVINDA RAJ, ADV.)

¶131

AND :

¶132

STATE OF KARNATAKA REP. BY ADDITIONAL CHIEF SECRETARY

¶133

21 -

¶134

	TO GOVERNMENT (ENERGY DEPARTMENT) VIKASA SOUDHA, BANGALORE - 560 001.
2.	KARNATAKA ELECTRICITY REGULATORY COMMISSION (KERC) NO.16, C-1, MILLERS TANK BED AREA, VASANTHANAGAR, BANGALORE - 560 052. (REP. BY ITS CHAIRMAN)
3.	BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM) A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT K.R.CIRCLE BENGALURU - 560 001 (REP BY ITS MANAGING DIRECTOR)
4.	GULBARGA ELECTRICITY SUPPLY COMPANY LIMITED (GESCOM) A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT STATION ROAD, KALABURAGI - 585 101 (REP. BY ITS MANAGING DIRECTOR)
5.	CHAMUNDESHWARI ELECTRICITY SUPPLY CORPORATION LIMITED (CESC) NO. 29, VIJAYANAGARA 2^NDSTGE HINKAL, MYSORE - 570 017 (REP. BY IS MANAGING DIRECTOR)
6.	HUBLI ELECTRICITY SUPPLY CORPORATION LIMITED (HESCOM) CORPORATE OFFICE P.B.ROAD, NAVANAGAR HUBBALLI - 580 025
	(REP BY ITS MANAGING DIRECTOR)
7.	KARNATAKA POWER TRANSMISSION
	CORPORATION LIMITED (KPTCL)
	A COMPANY REGISTERED UNDER

¶135

22 -

¶136

THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT KAVERI BHAVAN, K.G.ROAD, BENGALURU - 560 009 (REP. BY ITS MANAGING DIRECTOR) …RESPONDENTS

¶137

(BY SMT.JYOTHI, AGA FOR R-1; SRI B.N.PRAKASH, ADV. FOR R-2; SRI SHAHBAAZ HUSSAIN, ADV. FOR R-3; SRI MURUGESH V. CHARATI, ADV. FOR R-4 & R-6; SRI S.SRIRANGA, ADV. FOR R-5; SMT.M.C.NAGASHREE, ADV. FOR R-7.)

¶138

¶139

IN W.P.No.23242/2018:

¶140

BETWEEN :

¶141

M/s KUSHTAGI SOLAR POWER PRIVATE LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 2013, HAVING ITS REGISTERED OFFICE AT No.29, HARE KRISHNA REGENCY, RAMAPURA ROAD SUKHIYA, SANGANER, JAIPUR-302011, RAJASTHAN, REP BY ITS AUTHORISED SIGNATORY, Mr. KESA VIKRAM ...PETITIONER

¶142

(BY SRI SURAJ GOVINDA RAJ, ADV.)

¶143

AND :

¶144

STATE OF KARNATAKA REP BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,

¶145

23 -

¶146

(ENERGY DEPARTMENT), VIKASA SOUDHA, BANGALORE-560001

¶147

KARNATAKA ELECTRICITY REGULATORY COMMISSION (KERC) NO.6, C-1, MILLERS TANK BED AREA, VASANTHANAGAR, BANGALORE-560052. REP BY ITS CHAIRMAN 3. BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM), A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT K.R. CIRCLE, BENGALURU-560001 (REP BY MANAGING DIRECTOR) 4. HUBLI ELECTRICITY SUPPLY COMPANY LIMITED (HESCOM), A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT P.B. ROAD, NAVANAGAR, HUBBALI-580025 (REP BY MANAGING DIRECTOR) 5. KARNATAKA POWER TRANSMISSIONS CORPORATION LIMITED ( KPTCL), A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT KAVERI BHAVAN, KG ROAD, BENGALURU-560009 (REP. BY MANAGING DIRECTOR) …RESPONDENTS

¶148

(BY SMT.JYOTHI M., AGA FOR R-1; SRI B.N.PRAKASH, ADV. FOR R-2; SRI SHAHBAAZ HUSSAIN, ADV. FOR R-3 & R-5; SRI MURUGESH V. CHARATI, ADV. FOR R-4..)

¶149

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE

¶150

24 -

¶151

IMPUGNED ORDER DATED 14.05.2018 PASSED BY THE 2^ND RESPONDENT-KARNATAKA ELECTRICITY REGULATORY COMMISSION, BENGALURU, VIDE ANNEXURE-A.

¶152

IN W.P.No.23696/2018:

¶153

BETWEEN :

¶154

M/s EASTMAN INTERNATIONAL (A PARTNERSHIP FIRM REGISTERED UNDER THE PROVISIONS OF INDIAN PARTNERSHIP ACT, 1932) HAVING ITS REGISTERED OFFICE AT B-XXX 2185/C-203/1 PHASE VII, FOCAL POINT, LUDHIANA-141010, PUNJAB (REP. BY ITS AUTHORIZED SIGNATORY) Mr. TARAK PRAKASH TRIVEDI. ...PETITIONER

¶155

(BY SRI SURAJ GOVINDA RAJ, ADV.)

¶156

AND :

¶157

STATE OF KARNATAKA REP. BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT (ENERGY DEPARTMENT) VIKASA SOUDHA, BANGALORE-560001

¶158

KARNATAKA ELECTRICITY REGULATORY COMMISSION (KERC) NO.16, C-1, MILLERS TANK BED AREA, VASANTHANAGAR, BANGALORE-560052 (REP BY ITS CHAIRMAN)

¶159

BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM) A COMPANY REGISTERED UNDER THE PROVISION OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT K.R.CIRCLE BENGALURU-560001 (REP BY ITS MANAGING DIRECTOR )

¶160

25 -

¶161

GULBARGA ELECTRICITY SUPPLY COMPANY LIMITED (GESCOM) A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT STATION ROAD KALABURAGI-585101 (REP BY ITS MANAGING DIRECTOR) 5. HUBLI ELECTRICITY SUPPLY COMPANY LIMITED (HESCOM) A COMPANY REGISTERED UNDER THE PROVISION OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT P.B. ROAD, NAVANAGAR, HUBBALI-580025 (REP. BY ITS MANAGING DIRECTOR ) 6. KARNATAKA POWER TRANSMISSION CORPORATION LIMITED (KPTCL) A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT KAVERI BHAVAN, K.G. ROAD, BENGALURU-560009 (REP. BY ITS MANAGING DIRECTOR) …RESPONDENTS

¶162

(BY SMT.JYOTHI M., AGA FOR R-1; SRI B.N.PRAKASH, ADV. FOR R-2; SRI S.SRIRANGA, ADV. FOR R-3; SRI SHAHBAAZ HUSSAIN, ADV. FOR R-3 & R-6; SRI MURUGESH V. CHARATI, ADV. FOR R-4; SMT.M.C.NAGASHREE, ADV. FOR R-5 & R-6.)

¶163

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 14.05.2018 PASSED BY THE 2^ND RESPONDENT-KARNATAKA ELECTRICITY REGULATORY COMMISSION, BENGALURU, VIDE ANNEXURE-A.

¶164

26 -

¶165

IN W.P.No.23700/2018:

¶166

BETWEEN :

¶167

M/s SURYODAY ONE ENERGY PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 2013 HAVING ITS REGISTERED OFFICE AT S.P. CENTRE, 41/44 MINOO DESAI MARG, COLABA, MUMBAI-400005 REP. BY ITS AUTHORISED SIGNATORY Mr. SUNIL VASUDEO KULKARNI ...PETITIONER

¶168

(BY SRI SURAJ GOVINDA RAJ, ADV.)

¶169

AND :

¶170

STATE OF KARNATAKA REP BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT (ENERGY DEPARTMENT) VIKASA SOUDHA, BANGALORE-560 001

¶171

KARNATAKA ELECTRICITY REGULATORY COMMISSION (KERC) NO.16, C-1, MILLERS TANK BED AREA VASANTHANAGAR, BANGALORE-560 052 (REP BY ITS CHAIRMAN)

¶172

BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM) A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT K.R. CIRCLE BENGALURU-560001 (REP BY ITS MANAGING DIRECTOR)

¶173

HUBLI ELECTRICITY SUPPLY COMPANY LIMITED (HESCOM) A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT P.B. ROAD, NAVANAGAR

¶174

27 -

¶175

HUBBALI-580 025 (REP. BY ITS MANAGING DIRECTOR)

¶176

GULBARGA ELECTRICITY SUPPLY COMPANY LIMITED (GESCO) A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT STATION ROAD, KALABURAGI-585 101 (REP BY ITS MANAGING DIRECTOR)

¶177

KARNATAKA POWER TRANSMISSION CORPORATION LIMITED (KPTCL) A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT KAVERI BHAVAN, K.G. ROAD, BENGALURU-560009 (REP BY ITS MANAGING DIRECTOR) …RESPONDENTS

¶178

(BY SMT.JYOTHI, AGA FOR R-1; SRI B.N.PRAKASH, ADV. FOR R-2; SRI SHAHBAAZ HUSSAIN, ADV. FOR R-3 & R-6; SRI ARAVIND KAMATH, ADV. FOR R-5; SRI MURUGESH V. CHARATI, ADV. FOR R-5 & R-6.)

¶179

¶180

IN W.P.No.23851/2018:

¶181

BETWEEN :

¶182

M/s MARVEL SOLREN PVT. LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE T.MAHINDRA TOWERS, Dr. G.BHOSALE MARG,

¶183

28 -

¶184

P.K. KURNE CHOD, WORLI MUMBAI-400018 REP. BY ITS GENERAL MANAGER Mr. RAKESH KHAITAN ... PETITIONER

¶185

(BY SRI SHODHAN BABU A.M., ADV.)

¶186

AND :

¶187

BANGALORE ELECTRICITY SUPPLY COMPANY LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT K.R.CIRCLE, BENGALURU-5600001 (REP BY ITS MANAGING DIRECTOR)

¶188

CHAMUNDESHARI ELECTRICITY SUPPLY CORPORATION LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.29 KAVERI GRAMEENA BANK ROAD HINKAL, VIJAYANAGAR 2^ND STAGE MYSURU-570019 (REP BY ITS MANAGING DIRECTOR)

¶189

MANGALORE ELECTRICITY SUPPLY COMPANY LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT MESCOM BHAVANA, KAVOOR CROSS ROAD BEJAI, MANGALURU-570004 (REP. BY ITS MANAGING DIRECTOR)

¶190

HUBLI ELECTRICITY SUPPLY COMPANY LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED

¶191

29 -

¶192

OFFICE AT P.B. ROAD NAVANAGAR, HUBBALLI-580025 (REP BY ITS MANAGING DIRECTOR)

¶193

GULBARGA ELECTRICITY SUPPLY COMPANY LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT STATION ROAD KALABURGI-585101 (REP BY ITS MANAGING DIRECTOR)

¶194

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 BENGALURU-560009 (REP. BY ITS MANAGING DIRECTOR)

¶195

KARNATAKA ELECTRICITY REGULATORY COMMISSION NO.16, C-1 MILLERS TANK BED AREA VASANTH NAGAR BENGALURU-560052 …RESPONDENTS

¶196

(BY SRI S.S.NAGANANDA, SENIOR ADV. FOR SRI S.SRIRANGA, ADV. FOR R-2, R-4 & R-5; SMT.M.C.NAGASHREE, ADV. FOR R-3; SRI ARVIND KAMATH K., ADV. FOR R-5; SRI SHAHBAAZ HUSSAIN, ADV. FOR R-6; SRI H.V.DEVARAJU, ADV. FOR R-6; SRI B.N.PRAKASH, ADV. FOR R-7; R-1 IS SERVED, BUT UNREPRESENTED.)

¶197

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER, DATED 14.05.2018, PASSED BY THE RESPONDENT NO.7 (PRODUCED HEREIN AS ANNEXURE R).

¶198

30 -

¶199

IN W.P.Nos.23990 – 23995/2018:

¶200

BETWEEN :

¶201

FORTUNE FIVE HYDEL PROJECTS PRIVATE LIMITED HAVING ITS ADMN. OFFICE AT NO.701-702, PRESTIGE MERIDIAN-II, NO.30, M.G. ROAD, BENGALURU-560 001, REP BY ITS AUTHORIZED SIGNATORY Mr. NAVEEN KUMAR L.

¶202

VYSHALI ENERGY PRIVATE LIMITED HAVING ITS ADMN. OFFICE AT NO.701, PRESTIGE MERIDIAN-II, NO.30, M.G. ROAD, BENGALURU-560 001, REP BY ITS AUTHORIZED SIGNATORY Mr. NAVEEN KUMAR L.

¶203

MANGALORE ENERGIES PRIVATE LIMITED HAVING ITS REGISTERED OFFICE AT NO.173, 3^RD MAIN, 11^TH CROSS, DOLLARS COLONY, RMV 2^ND STAGE, BENGALURU-560 094, REP BY ITS AUTHORIZED SIGNATORY Mr. NAVEEN KUMAR L.

¶204

GREENKO BAGEWADI WIND ENERGIES PRIVATE LIMITED HAVING ITS ADMN. OFFICE AT NO.701-702, PRESTIGE MERIDIAN-II, NO.30, M.G. ROAD, BENGALURU-560 001, REP BY ITS AUTHORIZED SIGNATORY Mr. NAVEEN KUMAR L.

¶205

AMR POWER PRIVATE LIMITED HAVING ITS REGISTERED OFFICE AT NO.701-702, PRESTIGE MERIDIAN-II, NO.30, M.G. ROAD, BENGALURU-560 001,

¶206

31 -

¶207

REP BY ITS AUTHORIZED SIGNATORY Mr. NAVEEN KUMAR L.

¶208

PERLA HYDRO POWER PRIVATE LIMITED HAVING ITS ADMN. OFFICE AT NO.701-702, PRESTIGE MERIDIAN-II, NO.30, M.G. ROAD, BENGALURU-560 001, REP BY ITS AUTHORIZED SIGNATORY Mr. NAVEEN KUMAR L. ...PETITIONERS (BY SRI RAJESWARA P.N., ADV.)

¶209

AND :

¶210

KARNATAKA ELECTRICITY REGULATORY COMMISSION, #16C-1, MILLER TANK BED AREA, VASANTHANAGAR, BENGALURU-560 052 REP. BY MANAGING DIRECTOR.

¶211

KARNATAKA POWER TRANSMISSION CORPORATION LTD., KAVERI BHAVAN, K.G. ROAD, BENGALURU-560 009, REP. BY ITS MANAGING DIRECTOR.

¶212

BENGALURU ELECTRICITY SUPPLY COMPANY LTD., K.R. ROAD, BENGALURU-560 001, REP BY ITS MANAGING DIRECTOR,

¶213

HUBALLI ELECTRICITY SUPPLY COMPANY LTD., P.B. ROAD, DURGAD BAIL, NAVANAGAR, HUBBALLI, KARNATAKA-580 025, REP. BY ITS MANAGING DIRECTOR.

¶214

MANGALORE ELECTRICITY SUPPLY COMPANY LIMITED CORPORATE OFFICE, MESCOM BHAVANA, KAVOOR CROSS ROAD,

¶215

32 -

¶216

BEJAI, MANGALORE-575 004, REP BY ITS MANAGING DIRECTOR. …RESPONDENTS

¶217

(BY SRI B.N.PRAKASH, ADV. FOR R-1; SRI SHAHBAAZ HUSSAIN, ADV. FOR R-2; SRI S.SRIRANGA, ADV. FOR R-5; R-3 SERVED.)

¶218

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER OF RESPONDENT NO.1 COMMISSION DATED 14.05.2018 VIDE ANNEXURE-A, IN SO FAR AS THE PETITIONERS ARE CONCERNED.

¶219

IN W.P.Nos.24248 – 24259/2018:

¶220

BETWEEN :

¶221

BHADRA PACKAIDS PVT. LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS HEAD OFFICE AT No.23/14, II FLOOR, JALASAMBHAVI COMPLEX, 1^ST MAIN ROAD, GANDHINAGAR, BANGALORE - 560009 REP. BY ITS AUTHORIZED SIGNATORY Mr. MADESH LAKSHMAN

¶222

CHARISHMA HOTELS PVT. LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERD OFFICE AT RADISSON BLU BENGALURU, OUTER RING ROAD, SY.NO.90/4, MUNNEKOLLALU VILLAGE, MARATHAHALLI OUTER RING ROAD, BANGALORE -560037 RER. BY ITS AUTHORIZED SIGNATORY Mr. ANDREW HINES

¶223

KEMWELL BIOPHARMA PVT. LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES

¶224

33 -

¶225

ACT, 1956, HAVING ITS OFFICE AT 34^TH KM, TUMKUR ROAD, T.BEGUR, NELAMANGALA TALUK, BANGALORE - 562123 REP. BY ITS AUTHORISED SIGNATORY Mr. ANDREW HINES 4. MLS ESTATE LLP A LIMITED LIABILITY PARTNERSHIP HAVING ITS OFFICE AT ‘THE MILLENIA’ TOWER A 14^TH FLOOR, 1 & 2 MURPHY ROAD ULSOOR, BANGALORE- 560008 REP. BY ITS AUTHORISED SIGNATORY Mr. SANJIV SHANMUGAM 5. SHREE M.T.K. TEXTILES PVT. LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED ADMINISTRATIVE OFFICE AT NEW No.57, DPF STREET, RAMASWAMY LAYOUT, PAPPANICKENPALAYAM COIMBATORE - 641037 REP. BY ITS AUTHORISED SIGNATORY Mr. ANDREW HINES 6. AVON CYCLES LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, G.T. ROAD, LUDHIANA- 141003 REP. BY ITS AUTHORISED SIGNATORY Mr. ANDREW HINES 7. AVON ISPAT AND POWER LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFIE AT G.T. ROAD, LUDHIANA- 141003 REP BY ITS AUTHORISED SIGNATORY Mr. ANDREW HINES 8. LOZEN PHARMA PVT. LTD., A COMPANY REGISTERED UNDER

¶226

34 -

¶227

THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS FACTORY AT RAGHAV ESTATE, KSSIDC INSUTRIAL ESTATE SHIGGAON ROAD REP BY ITS AUTHORISED SIGNATORY Mr. ANDREW HINES 9. RENNAISSANCE ADVISORY SERVICES PVT. LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT 19/3, SUJATA BUILDING, RANISATI MARG, MALAD EAST, MUMBAI - 400097 REP. BY ITS AUTHORISED SIGNATORY Mr. ANDREW HINES

¶228

SHREE ANANTNATH REAL ESTATE PVT. LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT STEELYARD HOUSE, St. ROAD, IRON MARKET MASJID BUNDER, MUMBAI - 400009 REP. BY ITS AUTHORISED SIGNATORY Mr. ANDREW HINES 11. ABHISHTA SOLAR PVT. LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 2013, HAVING ITS REGISTERED OFFICE 4E AND 5E, INDUSTRIAL ESTATE, VAISHNAVI SAROVAR OPP. GUJARATHI SAMAJ APT No.402 & 403, D BLOCK, YADAVGIRI MYSORE - 570020 REP. BY ITS AUTHORISED SIGNATORY Mr. ANDREW HINES

¶229

35 -

¶230

UMIYA HOLDINGS PVT. LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 2013, HAVING ITS REGISTERED OFFICE # 29/3, H.M.STRAFFORD, 2^ND FLOOR, 7^TH CROSS ROAD, VASANTHNAGAR BANGALORE - 560052 JAIPUR, RAJASTHAN - 302019 REP. BY ITS AUTHORISED SIGNATORY Mr. ANDREW HINES ...PETITIONERS (BY SRI C.MURALIDHARA, ADV.) AND : 1. BANGALORE ELECTRICITY SUPPLY COMPANY LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT K.R.CIRCLE, BENGALURU - 560001 REP BY ITS MANAGING DIRECTOR 2. GULBARGA ELECTRICITY SUPPLY COMPANY LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT STATION ROAD, KALABURAGI - 585101 REP BY ITS MANAGING DIRECTOR 3. KARNATAKA ELECTRICITY REGULATORY COMMISSION No.16, C-1 MILLERS TANK BED AREA, VASANTH NAGAR, BENGALURU - 560052 REP. BY ITS CHAIRMAN 4. KARNATAKA POWER TRANSMISSION CORPORATION LTD., A COMPANY REGISTERED UNDER

¶231

36 -

¶232

THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT KAVERI BHAVAN, K.G.ROAD, BENGALURU - 560009 REP. BY ITS MANAGING DIRECTOR …RESPONDENTS

¶233

(BY SRI SHAHABAAZ HUSSAIN, ADV. FOR R-1 & R-4; SRI PRASHANT T. PANDIT, ADV. FOR R-2; SRI B.N.PRAKASH, ADV. FOR R-3.)

¶234

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 14^TH MAY, 2018 PASSED BY THE RESPONDENT NO.3 (PRODUCED HEREIN AS ANNEXURE-A).

¶235

IN W.P.No.25090/2018:

¶236

BETWEEN :

¶237

MATRIX WIND ENERGY PRIVATE LIMITED HAVING ITS REGD. OFFICE AT 8-2-277/12, NO.296, ROAD NO.3, UBI COLONY, BANJARA HILLS, HYDERABAD-500 034 REP BY ITS AUTORIZED SIGNATORY Mr. SHARAN B. ...PETITIONER

¶238

(BY SRI DHYAN CHINNAPPA, SENIOR ADV. FOR SRI P.N.RAJESWARA, ADV.)

¶239

AND :

¶240

KARNATAKA ELECTRICITY REGULATORY COMMISSION #16C-1, MILLER TANK BED AREA, VASANTHANAGAR, BENGALURU-560 052 MANAGING DIRECTOR

¶241

KARNATAKA POWER TRANSMISSION CORPORATION LTD., KAVERI BHAVAN, K.G. ROAD,

¶242

- 37 -

¶243

BENGALURU-560 009 REP BY ITS MANAGING DIRECTOR

¶244

BENGALURU ELECTRICITY SUPPLY COMPANY LTD., K.R. ROAD, BENGALURU-560 001 REP BY ITS MANAGING DIRECTOR

¶245

HUBALLI ELECTRICITY SUPPLY COMPANY LTD., P.B. ROAD, DURGAD BAIL, NAVANAGAR, HUBBALLI-580 025 KARNATAKA REP BY ITS MANAGING DIRECTOR …RESPONDENTS

¶246

(BY SRI B.N.PRAKASH, ADV. FOR R-1; SRI SHAHBAAZ HUSSAIN, ADV. FOR R-2 & R-3.)

¶247

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER OF RESPONDENT NO.1 COMMISSION DATED 14.05.2018 VIDE ANNEXURE-A IN SO FAR AS THE PETITIONER IS CONCERNED.

¶248

IN W.P.No.26480/2018:

¶249

BETWEEN :

¶250

JINDAL ALUMINUM LTD., REGISTERED OFFICE AT JINDAL NAGAR, TUMKUR ROAD, BENGALURU-560 073 REP BY AUTHORIZED SIGNATORY SHRI H.S.HAYATH KHAN ...PETITIONER

¶251

(BY SRI RAJESWARA P.N., ADV.)

¶252

AND :

¶253

KARNATAKA ELECTRICITY REGULATORY COMMISSION, # 16C-1, MILLER TANK BED AREA, VASANTHANAGAR,

¶254

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¶255

BENGALURU-560052

¶256

KARNATAKA POWER TRANSMISSION CORPORATION LTD., KAVERI BHAVAN, K.G. ROAD, BENGALURU-560 009 REP BY ITS MANAGING DIRECTOR 3. BENGALURU ELECTRICITY SUPPLY COMPANY LTD., K.R. CIRCLE, BENGALURU-560 001 REP BY ITS MANAGING DIRECTOR 4. GULBARGA ELECTRICITY SUPPLY COMPANY LIMITED CORPORATE OFFICE, # 48, SUPER MARKET MAIN ROAD, HALBARGA, BRHAMPUR KALABURGI-585 101 REP BY ITS MANAGING DIRECTOR 5. CHAMUNDESHWARI ELECTRICITY SUPPLY CORPORATION LTD., CORPORATE OFFICE, #927, L.J. AVENUE COMMERCIAL COMPLEX, NEW KANTHARAJA URS ROAD, SARASWATHIPURAM, MYSURU-570 009 REP BY ITS MANAGING DIRECTOR …RESPONDENTS

¶257

(BY SRI B.N.PRAKASH, ADV. FOR R-1; SRI H.V.DEVARAJU, ADV. FOR R-2; SRI SHAHABAAZ HUSSAIN, ADV. FOR R-2; SRI SHANMUKA G.C. ADV. FOR R-3; SRI S.SRIRANGA, ADV. FOR R-3; SRI PRASHANTH T. PANDIT, ADV. FOR R-4; SRI HARIKRISHNA S. HOLLA, ADV. FOR R-5.)

¶258

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AND SETTING ASIDE THE IMPUGNED ORDER OF R-1 COMMISSION DATED 14.05.2018 VIDE ANNEXURE-A IN SO FAR AS THE PETITIONER IS CONCERNED.

¶259

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¶260

IN W.P.No.28622/2018:

¶261

BETWEEN :

¶262

M/s P.BALASUBBA SETTY POWER & STEEL 2^ND FLOOR, D.NO.2078, P.B.NO.03, 22^ND WARD, J.P.NAGAR BALLARY ROAD, BALLARI, HOSPET BELLARY DISTRICT-583101 REP BY ITS AUTHORIZED REPRESENTATIVE SHRI P.PRABHAKAR SETTY ...PETITIONER

¶263

(BY SRI SHIVAPRASAD SHANTANAGOUDAR, ADV.)

¶264

AND :

¶265

THE STATE OF KARNATAKA REP BY ITS PRINCIPAL SECRETARY DEPARTMENT OF ENERGY VIKASA SOUDHA BANGALORE-560 001

¶266

THE KARNATAKA ELECTRICITY REGULATORY COMMISSION NO.16, C-I, MILLERS TANK BED AREA VASANTH NAGAR BENGALURU-560 001 REP BY ITS SECRETARY

¶267

THE KARNATAKA POWER TRANSMISSION CORPROATION LIMITED REGISTERED OFFICE AT CAUVERY BHAVANA KEMPEGOWDA ROAD, BENGALURU-560009 REP BY ITS MANAGING DIRECTOR

¶268

HUBLI ELECTRICITY SUPPLY COMPANY LIMITED NAVANAGAR, P.B. ROAD, HUBBALLI-580025 REP BY ITS MANAGING DIRECTOR

¶269

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¶270

MANGALURU ELECTRICITY SUPPLY COMPANY LIMITED REGISTERED OFFICE AT PARADISE PLAZA A.B. SHETTY CIRCLE MANGALURU -575001 REP. BY ITS MANAGING DIRECTOR 6. CHAMUNDESHWARI ELECTRICITY SUPPLY COMPANY LIMITED HAVING ITS OFFICE AT NAVANAGAR, HUBBALLI-580025 REP BY ITS MANAGING DIRECTOR 7. GULBARGA ELECTRICITY SUPPLY COMAPANY LIMTIED STATION ROAD, GULBARGA -585 102 REP BY ITS MANAGING DIRECTOR 8. BENGALURU ELECTRICITY SUPPLY COMPANY LIMITED REGISTERED OFFICE AT K.R. CIRCLE, BENGALURU-560001 9. MYSURU ELECTRICITY SUPPLY COMPANY REGISTRED OFFICE AT NO.29, VIJAYANAGAR II STAGE, HINAKAL, MYSURU-570017 …RESPONDENTS

¶271

(BY SMT.JYOTHI, AGA FOR R-1; SRI B.N.PRAKASH, ADV. FOR R-2; SRI S.SRIRANGA, ADV. FOR R-3; SRI PRASHANT T. PANDIT, ADV.FOR R-4; SRI DEVARAJU H.V., ADV. FOR R-5; SRI G.C.SHANMUKHA, ADV. FOR R-6 & R-9; SRI RAVINDRA REDDY, ADV. FOR R-7; SRI SHAHBAAZ HUSSAIN, ADV. FOR R-8.)

¶272

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 14.05.2018 PASSED BY THE KARNATAKA ELECTRICITY REGULATORY COMMISSION, BENGALURU PASSED IN NO.S/03/2017, IN THE MATTER OF REVISION OF

¶273

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¶274

"WHEELING AND BANKING CHARGES FOR RENEWABLE POWER PROJECTS", VIDE ANNEXURE-D, IN SO FAR AS IT RELATES TO PETITINER'S COMPANY.

¶275

IN W.P.No.53531/2018:

¶276

BETWEEN :

¶277

M/s LAKSHMI JALAVIDYUTH (KRISHNA) LIMITED NO.156, GOLF LINK ROAD, AMARAJYOTHI LAYOUT, DOMLUR, BENGALURU-560071 REP BY ITS DIRECTOR Mr. B.SAILESH REDDY, S/O B.SUDHAKAR REDDY, AGED ABOUT 45 YEARS ...PETITIONER

¶278

(BY SRI REUBEN JACOB, ADV.)

¶279

AND :

¶280

KARNATAKA ELECTRICITY REGULATORY COMMISSION NO.16, C-1, MILLER TANK BED AREA VASANTH NAGAR, BENGALURU-560052 REP BY ITS SECRETARY

¶281

KARNATAKA POWER TRANSMISSION CORPORATION LTD., KAVERI BHAVAN, BENGALURU-560 009 REP BY ITS MANAGING DIRECTOR

¶282

BANGALORE ELECTRICITY SUPPLY COMPANY LTD., K.R.CIRCLE, BENGALURU-560 001 REP BY ITS MANAGING DIRECTOR

¶283

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¶284

GULBARGA ELECTRICITY SUPPLY COMPANY LTD., STATION ROAD, KALABURGI-585102 REP BY ITS MANAGING DIRECTOR …RESPONDENTS

¶285

(BY SRI B.N.PRAKASH, ADV. FOR R-1; SRI S.SRIRANGA, ADV. FOR R-2; SRI SHAHBAAZ HUSSAIN, ADV. FOR R-3; SRI PRASHANT T. PANDIT, ADV. FOR R-4.)

¶286

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 14.05.2018 BEARING NO.S/03/2017 AT ANNEXURE-A PASSED BY R-1 IN SO FAR AS PETITIONER IS CONCERNED.

¶287

IN W.P.No.39329/2018:

¶288

BETWEEN :

¶289

NARAYANAPUR POWER COMPANY PRIVATE LIMITED, A COMPANY INCORPORATED AND GOVERNED BY THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.A-12, MANYATA RESIDENCY ARABIC COLLEGE POST, BENGALURU-560045 REP. BY ITS MANAGING DIRECTOR, Mr. Y.S.V.K.VASUDEV RAO ...PETITIONER

¶290

(BY SRI SHRIDHAR PRABHU, ADV.)

¶291

AND :

¶292

KARNATAKA ELECTRICITY REGULATORY COMMISSION, NO.16, C-1, MILLERS BED AREA, VASANTH NAGAR, BENGALURU-560052 (REP BY ITS CHAIRPERSON)

¶293

43 -

¶294

BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT 1956, HAVING ITS REGISTERED OFFICE AT K.R.ROAD, BENGALURU-560001 (REP BY ITS MANAGING DIRECTOR) 3. GULBARGA ELECTRICITY SUPPLY COMPANY LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT 1956, HAVING ITS REGISTERED OFFICE AT STATION ROAD, GULBARGA-585102 (REP BY ITS MANAGING DIRECTOR) 4. KARNATAKA POWER TRANSMISSION CORPORATION LIMITED KAVERI BHAVAN, K.G.ROAD, BENGALURU-560009 (REP BY ITS MANAGING DIRECTOR) 5. STATE OF KARNATAKA DEPARTMENT OF ENERGY, VIKASA SOUDHA, Dr. AMBEDKAR VEEDHI, BENGALURU-560001, (REP BY ITS ADDITIONAL CHIEF SECRETARY) …RESPONDENTS

¶295

(BY SMT.JYOTHI, AGA FOR R-5.)

¶296

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 14.05.2018 PASSED BY THE R-1 KARNATAKA ELECTRICITY REGULATORY COMMISSION, BENGALURU VIDE ANNEXURE-A, AS FAR AS THE PETITIONER IS CONCERNED.

¶297

THESE PETITIONS HAVING BEEN HEARD AND RESERVED ON 05.02.2019, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, S.SUJATHA J., PASSED THE FOLLOWING:

¶298

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¶299

O R D E R

¶300

These petitions involving similar and akin issues, have been considered together and are taken up for final disposal at this stage with the consent of the learned counsel appearing for the parties.

¶301

2. Facts of the case:

¶302

The petitioners have challenged the order dated 14.5.2018 (impugned order) passed by the Karnataka Electricity Regulatory Commission (KERC), Bengaluru under the provisions of the Electricity Act, 2003 ['Act' for short] and the KERC (Terms and Conditions for Open Access) Regulations, 2004, which deals with open access charges including wheeling and banking charges, transmission losses and cross subsidy surcharge of Renewable Energy [RE] projects commissioned between 01.04.2013 and 31.3.2018. The open access charges for RE projects commissioned between 01.04.2013 and 31.3.2018 were governed by two separate orders of the

¶303

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¶304

KERC. The order dated 4.7.2014 dealt with wind based as well as Mini hydel power plants and the order dated 18.8.2014 dealt with solar power plants. The wind/Mini hydel power plants under order dated 4.7.2014 were required to pay 5% wheeling charges of the injected energy. The banking charges were specified at 2% of the injected energy. The solar power generators as per the order dated 18.8.2014 were exempt from paying wheeling and banking charges and gross subsidy surcharge for a period of 10 years from the date of commissioning provided that their power plants were commissioned between 1.4.2013 and 31.3.2018. It appears that the petitioners have complied with the conditions in the orders dated 4.7.2014 and 18.8.2014 and commissioned their respective projects prior to 31.3.2018. However, KERC by the order impugned herein continued the exemption on the wheeling and banking charges to the solar projects commissioned on or earlier to 31.3.2017 and all the RE Projects [other

¶305

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¶306

than the captive generators] availing of the benefit of the Renewable Energy Certificate [REC], which have not yet completed ten years from the date of commercial operation as on 31.03.2018 are made liable to pay 25% of the normal transmission charges and/or wheeling charges and banking charges of two percent in kind. In case of wind/Mini hydel power projects commissioned during the period between 10.10.2013 and 3.9.2017, 25% of the normal transmission charges and/or wheeling charges have been levied. The line losses were to be exempted in kind. The banking charges were retained at 2% for projects commissioned between 10.10.2013 and 3.9.2017. The other applicable charges are liable to be levied in respect of wind projects as well. Being aggrieved by the order impugned, these petitions are filed.

¶307

3. Submissions on behalf of M/s. Renew Power Limited & others:-

¶308

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¶309

The impugned order suffers from jurisdictional error being contrary to sections 42(2), 61 and 62 of the Act, Rule 11 of the Open Access Regulations 2004 ['OA Regulations' for short] as well as the judgment of the Hon’ble Apex Court in PTC India limited Vs Central Electricity Regulatory Commission¹ . It was contended that the respondent KERC has no jurisdiction to interfere with the settled contract under the provisions of the Act, Regulations 2004 and in terms of the contract entered into between the parties. The KERC has not traced the power to re-determine the tariff to any provision under the Act. Settled contract cannot be unsettled except by way of fresh regulation in exercise of the legislative function of the state commission.

¶310

The statutory contracts have to be read with the Act and the regulations governing the statutory contract. Any amendments to statutory contract have to be in conformity with the parent statute and the specific

¶311

1 (2010)4 SCC 603

¶312

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¶313

regulations that govern the statutory contract in question. A generic order made applicable to multiple projects may only be revised by resorting to a regulation under section 181 of the Act and not under the quasi judicial functions of the KERC.

¶314

It was submitted that the amendment can only be carried out at the instance of one of the parties to the contract which is admittedly not the case herein. Neither the KERC nor the public notice and the discussion paper issued prior to the impugned order do trace the power of the commission to the amendment clause of the contract and the same is an after thought. The KERC cannot revisit the open access charges determined in a settled contract by belatedly resorting to amendment clause in the contract. KERC has reaffirmed the exemption granted in its order dated 18.8.2014 repeatedly in the orders dated 30.7.2015 and 12.4.2017 which were applicable to various control

¶315

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¶316

periods from 1.4.2013 to 31.3.2018. Achieving the

¶317

desired objective and the solar as well as wind power generation in the State of Karnataka has been increased cannot be treated as a ground for change in the circumstances to revisit the exemptions granted to solar and wind generators in the orders dated 10.10.2013, 4.7.2014, 18.8.2014, 30.7.2015 and 12.4.2017.

¶318

The OA regulations framed in the present case

¶319

under Sections 42 and 62 of the Act are in exercise of delegated legislative powers under Sections 42, 61, 62 and 181 of the Act. The KERC cannot re-open the tariff determination made under the order dated 18.8.2014 without there being corresponding change in the regulations through legislative amendments or by way of introduction of a fresh regulation under Section 181 of the Act. It was argued that the tariff order in question traces its source to section 86(1)(e) of the Act which mandates promotion of cogeneration and generation of

¶320

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¶321

power from renewable sources of energy and therefore, the order granting exemption from payment of OA charges was essential for the development of renewable energy generation and therefore is not a concession that can be withdrawn unilaterally.

¶322

The exemption granted is not in the nature of state largesse. The exemption granted by the order dated 10.10.2013 has been extended for a specific period of ten years by the order dated 18.08.2014, after taking into account a) the debt repayment period of ten years. b) High cost of solar power generation and c) the requirement for transparency and clarity in revenue for the next ten years. The KERC after applying its mind to the issues and passing OA regulations read with sections 61, 62, 64 and 86(1)(e) of the Act cannot now revisit the issues by citing subsequent changes in circumstances such change in circumstances can only be applied to projects which are set up after 31.03.2018

¶323

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¶324

and not for projects commissioned prior to 31.03.2018

¶325

which were commissioned based on the

¶326

assurance/promise made by the State Government in as much as the exemption granted relating to tariff and banking charges in terms of the orders as well as the order of the KERC dated 18.08.2014.

¶327

As regards the alternative remedy of appeal available under the Act, it was contended that the KERC has no jurisdiction to interfere with the settled contracts under the provisions of the Act which are statutory contracts. OA Regulations and/or the terms of the contracts entered into between the parties, the settled contract between the parties which are wheeling and banking agreement in this case, do not permit either a re-determination, revision or review of the generic OA charges determined in accordance with applicable tariff orders and the OA Regulations, 2004. The order impugned passed without jurisdiction is amenable to

¶328

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¶329

writ jurisdiction. Reliance was placed on the judgment of the Hon’ble Apex Court in PTC India Private

¶330

Limited supra, to substantiate their arguments.

¶331

4. Submission on behalf of M/s Embassy Energy Private Limited:-

¶332

The Respondent No.1 convened a Global Investors Meet (Invest Karnataka 2016) and issued public policy document on 05.02.2016. This global investors meet was exclusive and focus was on the energy development through alternative source, which contains the foreword of the then Hon’ble Minister of the Energy providing the aim of achieving the maximum solar/wind/mini hydel energy. Under foreword of Additional Chief Secretary, Government of Karnataka inviting additional active investment on solar energy providing with the key high lights revising the minimum target as 2000MW in solar power, planning to achieve 6000 MW by 2021 with no limits or caps for projects under REC mechanism.

¶333

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¶334

Industry friendly policy regulation therein assured no cross subsidy surcharge for third party, no transmission and wheeling charges, 100% banking for open access projects. Applications were made by the petitioner for submitting proposals for solar power plants of 100 MW. Government by order dated 28.03.2016 permitted the setting up of the solar power plant.

¶335

Petitioner submitted performance of security with Government of Karnataka on 16.09.2017. Tentative evacuation scheme and regular evacuation scheme were made on 24.10.2016 and 28.03.2017 respectively. Wheeling and banking agreement was entered into by the petitioner with KPTCL on 19.12.2017 commissioning of 40MW out of 100MW of solar power plant started on 23.01.2018. Commission certificate for the balance 60MW was given on 28.02.2018.

¶336

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¶337

Referring to these events and the list of dates, it was argued that the KERC had granted ten years tariff holiday on banking, wheeling and cross subsidy surcharge for all solar plant commissioned between 01.04.2013 and 31.03.2018. The State Government has issued a public policy document of energy Invest Karnataka 2016, GIM, declaring and re-iterating the availability of these benefits to those invest in solar power plant industry in Karnataka. It is based on the promises and assurances of the KERC and the Government of Karnataka, the petitioner initiated the process of filing the applications for setting up of solar plants and after carrying out series of steps, carried out commissioning of the plants on 23.01.2018, thus coming within the time period mandated by the KERC and the Government of Karnataka. The discussion paper initiated by the KERC on 10.01.2018 on wheeling and banking charges re-iterates its earlier order dated 04.07.2014 granting the benefit for the period of ten

¶338

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¶339

years for such projects commissioned on or before 31.03.2018. The reasons stated for revisiting the earlier decisions that the solar power project capacity has increased to 1698 MW as on the November 2017 and by the end of the financial year 2019, it anticipated commissioning of 6000 MW would call for revisiting the concession granted post 31.03.2017 is without jurisdiction, arbitrary and discriminatory.

¶340

Nextly, it was argued that, a] State action withdrawing the promise midway without there being a supervening public interest necessitating such withdrawal calls for interference in the judicial review by this court. b] Agreement or contract in question is not a private contract between the private parties but a statutory contract. Arbitrary classification made by the impugned order continuing the benefit for the solar plants commissioned between 01.04.2013 and 31.03.2017 and withdrawing the benefits for such

¶341

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¶342

plants commissioned post 01.04.2017 is unreasonable, arbitrary and hit by Article 14 of Constitution of India.

¶343

The reasons assigned by the KERC that the petitioners are making super profit and therefore, the concession requires to be withdrawn is legally unsustainable. On the contrary, the records show a down word decline of an unimaginable 98% down fall as regards the solar power projects are concerned.

¶344

Regarding alternative remedy it was argued that the order impugned being violative of Article 14 of the Constitution and is passed without jurisdiction is amenable to the writ jurisdiction under Articles 226 and 227 of the Constitution of India.

¶345

5. Submissions on behalf of M/s. Matrix Wind Energy Private Limited:

¶346

It was argued that the commission lacks jurisdiction to amend / modify the wheeling and

¶347

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¶348

banking charges once determined in respect of renewable energy projects. The transmission and wheeling charges are amenable to section 61(b) of the Act and the said power is exercised by the commission as a regulator and not as an adjudicator, exercising the statutory power wheeling and banking charges were fixed/determined payable by renewable power plant established up to a particular period of ten years. Commission cannot suo-moto exercise the powers to revise / amend the wheeling and banking charges fixed in terms of the statutory contract on the assurance/ promise made to provide an exemption to the petitioner, no such suo-moto power is vested with the commission.

¶349

Reference was made to Doctrine of promissory estoppel, legitimate expectation and the discussion paper in as much as revising the order dated 18.08.2014 to contend that the order impugned is

¶350

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¶351

arbitrary and capricious and passed without

¶352

jurisdiction.

¶353

It was argued that surprisingly, a sub

¶354

categorization was made to discriminate between the RE Generators commissioned before 31.03.2017 and post 31.03.2017. Order 47 Rule 1 of CPC was also referred to submit that no review of the order dated 18.08.2014 is permissible.

¶355

As regards alternative remedy, it was argued that there being breach of fundamental rights and the promise/assurance made, order impugned lacks jurisdiction, as such there is no bar to exercise the writ jurisdiction under Articles 226 and 227 of the Constitution.

¶356

Inherent powers of the commission are saved to make orders which are necessary to secure the ends of justice and to prevent the abuse of the process of the

¶357

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¶358

commissions. Reference was made to the judgment of the Hon’ble Apex Court in the case of Gujarat Urja

¶359

Vikas Nigam Limited Vs. Solar Semi Conductor Power company (India Private Limited) and another² .

¶360

6. Submissions on behalf of M/s. Narayanpur

¶361

power Company Private Limited:

¶362

It was argued that existence of the judicial member is sine quo non for the Tribunal passing quasi judicial orders. Placing reliance on the judgment of the Hon'ble Apex Court in the case of State of Gujarat and others Vs. Utility Users Welfare Association and

¶363

others³ , it was submitted that if the Tribunals are to be given judicial power, they must possess judicial independency and capacity associated with the courts, Members of judiciary should be the presiding officer/member of such Tribunal. Further, referring to

¶364

2 (2017) 16 SCC 498

¶365

3 (2018)6 SCC 21

¶366

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¶367

the clarificatory orders of the Hon’ble Apex Court dated 10.09.2018, it was submitted that the clarificatory order has to be understood in the light of the series of judgments of the Hon’ble Apex Court. The clarificatory order reads as under:

¶368

“Application[s] for impleadment /intervention is/are dismissed

¶369

We are of the view that there is no ambiguity in the Judgment and till such time a reconstitution of the Tribunal does not take place arising from a retirement of a Member from the legal field, the existing Tribunal will decide all the cases.

¶370

The application/s for clarification/direction is/are disposed of.

¶371

In view of the above, the misc. petition is disposed of.”

¶372

The said clarificatory order applies to the transfer

¶373

case MA No.2217/2018 in TC (C No.137/2015) and not to the entire batch of cases. In any event, the ratio laid down by the Hon’ble Apex Court in the State of Gujarat supra, is not disturbed or in other words, the

¶374

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¶375

clarificatory order of the Hon’ble Apex Court would not be of any avail to the respondents. The contract would

¶376

not confer the jurisdiction on the commission or delegate to issue a revising / modification order in respect of the wheeling and banking charges fixed with retrospective effect. No such power is vested with the commission.

¶377

7. The submissions made on behalf of M/s. Awada Sustainable Energy Private Limited:

¶378

Order impugned has been passed by the commission against the principles of natural justice without issuing any individual notice, the general and blanket order has been passed in violation of the principles of natural justice. Order impugned seeks to undo the settled contract between the parties. The concessional charges/exemption extended in the order dated 18.08.2014, issued cannot be withdrawn or modified much against the principles of legitimate

¶379

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¶380

expectation and promissory estoppel. The order impugned is in utter defiance and disregard to the doctrine of promissory estoppel. To promote solar power generation providing a level playing field for such generation vis-à-vis the solar power being sold by ESCOM of the State to such private parties, it was envisaged to achieve the same by affording the exemption/concession from payment of wheeling and banking charges etc., However, in utter disregard, the impugned order has been passed which is violative of Article 14 of the Constitution of India. In view of the order impugned being illegal, without jurisdiction, violative of the principles of natural justice and also hit by Article 14 of the Constitution of India, invoking the extraordinary writ jurisdiction of this Court is not unjustifiable and writ petitions requires to be adjudicated on merits, not withstanding the alternative remedy of appeal available under the Act.

¶381

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¶382

The other petitioners have adopted the arguments

¶383

as aforesaid.

¶384

8. Submissions on behalf of the Commission – KERC and Electricity Supply Companies

¶385

[ESCOMS].

¶386

Primarily, it was argued that the writ petitions are not maintainable in view of the alternative remedy of the appeal available under the Act. Placing reliance on the judgment of the Hon’ble Apex Court in Civil Appeal No.879/2019 disposed of on 21.01.2019 in the matter of Reliance Infrastructure Limited Vs. State of Maharashtra⁴ , it was argued that in exercise of power of judicial review under Article 226 of the Constitution arising out of orders passed by the specialized Tribunal like Electricity Regulatory Commission, the Hon’ble court would have to be circumspect in examining the merits of the decision particularly relating to fixation of tariff and ought not to interfere unless the matter is

¶387

4 Civil Appeal No.879/2019 (D.D. Jan 21, 2019)

¶388

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¶389

manifestly unreasonable, arbitrary and based on extraneous consideration. The petitioners have not pleaded/demonstrated such infirmity in the order of the commission and therefore, the petitions are liable to be dismissed in limine.

¶390

It was argued that the wheeling and banking agreement itself provides the alteration/modification of the terms of the contract under Article 12.6. Article 5 of the Wheeling and Banking agreement clearly states that the petitioners are liable to pay the charges as determined by the commission in its orders passed from time to time. Standard format of the wheeling and banking agreement being accepted by the petitioner and respondents, the petitioners are therefore precluded from contending that the contracts could not have been modified. The provisions of the Act, Regulation, 2004 and Wheeling and Banking agreements empowers the commission to determine and revise the wheeling

¶391

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¶392

charges, banking charges and cross subsidy charges. Hence, passing a regulation under Section 181 of the Act is not necessary as the Commission is empowered under the parent Act and the regulation to determine the tariff and the period, the principles of legitimate expectation and promissory estoppel are not applicable in the present context when parties are governed by the contract. It is always open to the regulator to take into consideration the changed circumstances which necessitates change in the regulatory frame work. Concessions that were granted earlier were required at that time however the commission has noted that in view of the change in the circumstances warranting the imposition of wheeling charges of 25% and banking charges passed the orders impugned.

¶393

Reference was made to section 21 of the General Clauses Act, 1897 to argue that the power to issue an order includes the power to alter, amend, vary or

¶394

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¶395

rescind the order. The orders dated 04.07.2014 and 18.07.2014 as well as the order impugned have been issued in furtherance of such powers. The impugned order is prospective in nature and has not taken away the concession / promotional measures granted in the orders dated 04.07.2014 and 18.08.2014 respectively. The commission has granted promotional measure and concessional charges in orders dated 04.07.2014 and 18.08.2014 in view of the short fall in energy in the State and the country. However, now in view of the changed circumstances, energy generation is surplus in the State. Therefore, the commission came to the opinion that change in the demand and supply position and the significant reduction in cost of generation has necessitated reconsideration of whether concession for wheeling and banking ought to be given. After thorough analysis, the commission has come to the conclusion that the concessions granted earlier are now no longer required to be granted. RE Generators are making super

¶396

67 -

¶397

profits availing the concession granted in the orders dated 04.07.2014 and 18.08.2014, which additional cost is ultimately being borne by the consumers of the State.

¶398

Drawing the attention of the Court to the clarificatory order passed on 10.09.2018 in the case of

¶399

State of Gujarat supra, argued that the Hon'ble Apex Court has observed that till such time a reconstitution of the Tribunal does not takes place arising from a retirement of a member from the legal field, the existing Tribunal will decide all the cases, the said decision is applicable to the commission as the question before the Hon’ble Apex court was whether requirement of nonjudicial member was legal. Hence, the orders passed by the commission are in accordance with law and have been passed in exercise of the jurisdiction vested in it. The order impugned cannot be construed as being passed in exercise of the power of review.

¶400

68 -

¶401

It was argued that in terms of the order dated 30.07.2015 and the order dated 12.04.2017 passed by the Commission, the capital cost was considered at Rs.440 lakhs for MW for the purpose of determination of

¶402

tariff per mega watts solar PV power plants. The commission in its order dated 23.03.2016 has determined the bench mark capital cost norms for solar photo volaptic projects for 2016-17 at Rs.530.02 lakhs per MW as against the Rs.605.85 lakhs per MW determined for 2015-16, considering these bench mark norms, the commission in its discussion paper dated 09.02.2017 had proposed to adopt Rs.463.76 lakhs per MW, a capital cost for 2017-18. The capital cost has reduced from year to year.

¶403

9. Submissions on behalf the State:

¶404

The order impugned being appealable, the writ petition is not maintainable. The Government of Karnataka has allotted the projects to the petitioners

¶405

69 -

¶406

vide Government order dated 28.03.2016 and

¶407

08.09.2017. The government orders make it clear that

¶408

the petitioners are governed by the solar policy 2014 to 2021. Clause 13 of Solar Policy makes it clear that the wheeling, banking and cross subsidy charges shall be applicable as determined by the KERC from time to time. Brochures furnished by the petitioners Karnataka 2016 Global Investors Meet 3 to 5, 2016 is not a solar policy, the said booklet/brochures have been issued by the Department of the Industries and Commerce which contains the information regarding solar policy. Solar policy 2014-21 issued on 22.05.2014 is still in operation. By the impugned order dated 14.05.2018 commission has withdrawn the exemption on wheeling and banking charges based on the public interest and is not arbitrary. The doctrine of promissory estoppel is not attracted in the sphere of legislative power since the fixing of tariff of wheeling and banking charges is a consequence of the legislative measure.

¶409

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¶410

10. It is apt to refer to relevant provisions of

¶411

the Act:-

¶412

Section 2(76): ‘Wheeling’ means the operation whereby the distribution system and associated facilitates of a transmission licensee, as the case may be, are used by another person for the conveyance of electricity on payment of charges to be determined under Section 62.

¶413

Section 61

¶414

“Tariff regulations – The Appropriate Commission shall, subject to the provisions of this Act, specify the terms and conditions for the determination of the tariff, and in doing so, shall be guided by the following, namely:-

¶415

(a) the principles and methodologies specified by the Central Commission for determination of the tariff applicable to generating companies and transmission licensees;

¶416

(b) the generation, transmission, distribution and supply of electricity are conducted on commercial principles;

¶417

71 -

¶418

(c) the factors which would encourage competition, efficiency, economical use of the resources, good performance and optimum investments;

¶419

(d) safeguarding of consumers’ interest and at the same time, recovery of the cost of electricity in a reasonable manner;

¶420

(e) the principles rewarding efficiency in performance;

¶421

(f) multi-year tariff principles;

¶422

(g) that the tariff progressively reflects the cost of supply of electricity and also reduces cross-subsidies in the manner specified by the Appropriate Commission;]

¶423

(h) the promotion of co-generation and generation of electricity from renewable sources of energy;

¶424

(i) the National Electricity Policy and tariff policy:

¶425

Provided that the terms and conditions for determination of tariff under the Electricity

¶426

72 -

¶427

(Supply) Act, 1948 (54 of 1948), the Electricity Regulatory Commissions Act, 1998 (14 of 1998) and the enactments specified in the Schedule as they stood immediately before the appointed date, shall continue to apply for a period of one year or until the terms and conditions for tariff are specified under this section, whichever is earlier.”

¶428

“Section 62. (Determination of tariff): --

¶429

(1) The Appropriate Commission shall determine the tariff in accordance with the provisions of this Act for – (a) supply of electricity by a generating company to a distribution licensee:

¶430

Provided that the Appropriate Commission may, in case of shortage of supply of electricity, fix the minimum and maximum ceiling of tariff for sale or purchase of electricity in pursuance of an agreement, entered into between a generating company and a licensee or between licensees, for a period not exceeding one year to ensure reasonable prices of electricity;

¶431

73 -

¶432

(b) transmission of electricity ;

¶433

¶434

(d) retail sale of electricity:

¶435

Provided that in case of distribution of electricity in the same area by two or more distribution licensees, the Appropriate Commission may, for promoting competition among distribution licensees, fix only maximum ceiling of tariff for retail sale of electricity.

¶436

(2) The Appropriate Commission may require a licensee or a generating company to furnish separate details, as may be specified in respect of generation, transmission and distribution for determination of tariff.

¶437

(3) The Appropriate Commission shall not, while determining the tariff under this Act, show undue preference to any consumer of electricity but may differentiate according to the consumer's load factor, power factor, voltage, total consumption of electricity during

¶438

74 -

¶439

any specified period or the time at which the supply is required or the geographical position of any area, the nature of supply and the purpose for which the supply is required.

¶440

(4) No tariff or part of any tariff may ordinarily be amended, more frequently than once in any financial year, exception respect of any changes expressly permitted under the terms of any fuel surcharge formula as may be specified.

¶441

(5) The Commission may require a licensee or a generating company to comply with such procedures as may be specified for calculating the expected revenues from the tariff and charges which he or it is permitted to recover.

¶442

(6) If any licensee or a generating company recovers a price or charge exceeding the tariff determined under this section, the excess amount shall be recoverable by the person who has paid such price or charge along with interest equivalent to the bank rate without

¶443

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¶444

prejudice to any other liability incurred by the licensee.

¶445

“64. Procedure for tariff order: ---

¶446

(1) An application for determination of tariff under section 62 shall be made by a generating company or licensee in such manner and accompanied by such fee, as may be determined by regulations. (2) Every applicant shall publish the application, in such abridged form and manner, as may be specified by the Appropriate Commission.

¶447

(3) The Appropriate Commission shall, within one hundred and twenty days from receipt of an application under sub-section (1) and after considering all suggestions and objections received from the public,-

¶448

(a) issue a tariff order accepting the application with such modifications or such conditions as may be specified in that order;

¶449

(b) reject the application for reasons to be recorded in writing if such application is not in accordance with the provisions of this Act and the rules and regulations made thereunder or the provisions of any other law for the time being in force:

¶450

Provided that an applicant shall be given a reasonable opportunity of being heard before rejecting his application.

¶451

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¶452

(4) The Appropriate Commission shall, within seven days of making the order, send a copy of the order to the Appropriate Government, the Authority, and the concerned licensees and to the person concerned.

¶453

(5) Notwithstanding anything contained in Part X, the tariff for any inter-State supply, transmission or wheeling of electricity, as the case may be, involving the territories of two States may, upon application made to it by the parties intending to undertake such supply, transmission or wheeling, be determined under this section by the State Commission having jurisdiction in respect of the licensee who intends to distribute electricity and make payment therefor.

¶454

(6) A tariff order shall, unless amended or revoked, continue to be in force for such period as may be specified in the tariff order.”

¶455

“Section 86. (Functions of State Commission): ---

¶456

(1) The State Commission shall discharge the following functions, namely: -

¶457

(a) determine the tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, within the State:

¶458

Provided that where open access has been permitted to a category of consumers under section 42, the State Commission shall

¶459

- 77 -

¶460

determine only the wheeling charges and surcharge thereon, if any, for the said category of consumers;

¶461

(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;

¶462

¶463

(d) issue licences to persons seeking to act as transmission licensees, distribution licensees and electricity traders with respect to their operations within the State;

¶464

(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;

¶465

(f) adjudicate upon the disputes between the licensees, and generating companies and to refer any dispute for arbitration;

¶466

(g) levy fee for the purposes of this Act;

¶467

78 -

¶468

(h) specify State Grid Code consistent with the Grid Code specified under clause (h) of subsection (1) of section 79;

¶469

(i) specify or enforce standards with respect to quality, continuity and reliability of service by licensees;

¶470

(j) fix the trading margin in the intra-State trading of electricity, if considered, necessary; and

¶471

(k) discharge such other functions as may be assigned to it under this Act.

¶472

(2) The State Commission shall advise the State Government on all or any of the following matters, namely :-.

¶473

(i) promotion of competition, efficiency and economy in activities of the electricity industry;

¶474

(ii) promotion of investment in electricity industry;

¶475

(iii) reorganization and restructuring of electricity industry in the State;

¶476

(iv) matters concerning generation, transmission , distribution and trading of electricity or any other matter referred to the State Commission by that Government.

¶477

(3) The State Commission shall ensure transparency while exercising its powers and discharging its functions.

¶478

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¶479

(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.”

¶480

Powers of State Commissions to make regulations: ---

¶481

(1) The State Commissions may, by notification, make regulations consistent with this Act and the rules generally to carryout the provisions of this Act.

¶482

(2) In particular and without prejudice to the generality of the power contained in subsection (1), such regulations may provide for all or any of the following matters, namely: -

¶483

xxxxxx

¶484

(3) All regulations made by the State Commission under this Act shall be subject to the condition of previous publication.

¶485

11. Regulation No.11 of KERC (TQC for open Access) Regulations, 2004.

¶486

“11. Saving of inherent power of the Commission:

¶487

(1) Nothing in these Regulations shall be deemed to limit or otherwise affect the inherent power of the Commission to make such orders as may be necessary for meeting

¶488

80 -

¶489

the ends of justice or to prevent the abuse of the process of the Commission.

¶490

(2) Nothing in these Regulations shall bar the Commission from adopting a procedure which is at variance with any of the provisions of these Regulations, if the Commission, in view of the special circumstances of a matter or class of matters and for reasons to be recorded in writing, deems it necessary or expedient for dealing with such a matter or class of matters.

¶491

(3) Nothing in these Regulations shall, expressly or impliedly, bar the Commission from dealing with any matter or exercising any power under the Act for which no Regulations have been framed, and the Commission may deal with such matters, powers and functions in a manner it thinks fit.

¶492

(4) In the exercise of its powers under the Act and in the discharge of its functions, the Commission shall as circumstances may permit, be guided by the principles of natural justice”.

¶493

12. Order dated 18.08.2014 (Solar) :

¶494

On analyzing the discussion paper, suggestions/

¶495

comments of Stakeholders on the discussion paper, promotion of solar power, High Cost of solar power

¶496

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¶497

projects, competitive rates of solar power, Commission KERC has arrived at a decision and the relevant portion

¶498

of the order reads thus:

¶499

“In exercise of the powers conferred under clause 11 of the KERC [Terms and Conditions of open access] Regulations, 2004 as amended from time to time and all other powers enabling in this behalf, the Commission hereby orders as follows:

¶500

All solar power generators in the State achieving commercial operation date [CoD] between 1^st April 2013 and 31^st March 2018 and selling power to consumers within the State on open access or wheeling shall be exempted form payment of wheeling and banking charges and cross subsidy surcharge for a period of ten years from the date of commissioning. This is also applicable for captive solar power plants for self-consumption within the State.

¶501

Captive solar power plants opting for Renewable Energy Certificates shall pay the normal wheeling, banking and other charges as specified in the Commission’s Order dated 9^th October 2013.”

¶502

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¶503

13. Order dated 04.07.2014 (Wind and Mini-

¶504

hydel):

¶505

(1) The Wheeling charges shall be 5% of the injected energy for wind, mini-hydel, Bagasse based co-generation plants and Biomass based projects;

¶506

(2) The banking charges shall be 2% of the injected energy and shall be applicable for wind and mini-hydel projects only;

¶507

14. Brochure of the Global Investors Meet:

¶508

The Brochure of the Global Investors Meet February 3-5/2016 held at Bengaluru Palace,

¶509

Bengaluru provides the key highlights for the Karnataka Solar Policy 2014-2021 which is quoted under:

¶510

“Government of Karnataka [GoK] on 22^nd May 2014 revised its existing State Solar Power Policy with minimum target of 2,000 MW.

¶511

MNRE has revised this target to 6,000 MW to achieve national target of 175 GW.

¶512

Planning to achieve 6,000 MW [in phased manner] by 2021

¶513

Grid connected projects – 3,600 MW

¶514

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¶515

Projects under REC mechanism, captive/group captive, IPPs – No limit

¶516

Projects under bundled power

¶517

Projects selected by competitive bidding [capacity > 3MW]

¶518

Grid connected rooftop projects – 2,400 MW by 2020.”

¶519

Regarding renewable energy, solar power, it is

¶520

assured that industry friendly policies and regulations.

¶521

No cross subsidy surcharge

¶522

No transmission and wheeling charges

¶523

100% banking for open access projects.

¶524

Shelf of projects regarding renewable energy is stated as under:

¶525

“Solar Power: [as per Solar Policy 2014-21]

¶526

Ultra Mega Solar Parks having capacity of 500 MW or above are planned as per MNRE guidelines

¶527

Solar projects can be installed under IPP model. There are no wheeling and banking charges & cross subsidy for the projects commissioned before 2018

¶528

Government of Karnataka encourages solar parks with area not less than 100 acres through a viable model in backwards districts of Karnataka

¶529

Karnataka offers the best policy and tariff in net metering in the country; promotional measures will be taken for increasing

¶530

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¶531

awareness about the advantages of net metering within residential, community, institutional, industrial, and commercial establishments

¶532

A new policy for promoting gross metering for commercial and industrial establishments will be published to tap solar power potential.

¶533

Wind power:

¶534

Investors are encouraged to set up wind power plants as per the prevailing policies of Karnataka.

¶535

Re-powering of old wind mills having capacity less than 500 KW will be taken up in the State in a pro-active manner for enhancing the existing capacity. In this regard, discussions with investors will be made to frame a new policy document for enhancing wind power potential in the State.”

¶536

Similar for Mini-hydel project also.

¶537

15. Amendment Clause in PPA:

¶538

Clause 12.6 of the Wheeling and Banking

¶539

agreement reads thus:

¶540

“12.6 Amendments:

¶541

This Agreement shall not be amended, changed, altered, or modified except by a written instrument duly executed by the authorized representatives of both the Parties and approved by the Commission. However,

¶542

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¶543

the Commission shall be entitled to modify/alter the conditions of this contract [agreement] at the instance of either of the parties, or Suomotu, after giving an opportunity of hearing to all the parties.”

¶544

16. Clause 5.1 of PPA:

¶545

“The Company shall pay all the charges to the Corporation/GESCOM/BESCOM for using their network as per the applicable KERC Regulations/Orders issued from time to time………….”

¶546

17. Discussion paper – Relevant portion:

¶547

In the discussion paper on wheeling and banking

¶548

charges for renewable power projects, relevant para 11 reads thus:

¶549

“11. Considering that the Orders dated 04.07.2014 and 08.07.2014 relating to wheeling and banking charges are valid upto 31.03.2018, there is a need to take a decision on the wheeling and banking charges that would be applicable for both solar and nonsolar power projects under non-REC route from 01.04.2018, onwards. Therefore, the Commission is issuing this Discussion Paper with the proposal for revising the wheeling

¶550

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¶551

and banking charges, as discussed in the subsequent paragraphs.”

¶552

18. Order Dated 14.05.2018:

¶553

Wheeling and Banking Charges for Renewable

¶554

Power Projects has been revised in terms of the order of the KERC dated 14.05.2018 [impugned order]. The relevant paragraphs of the said order is quoted herein for ready reference:

¶555

“[1] Subject to the terms stated in Paragraph-2 below of this Order, all Renewable Energy Projects [other than the Captive Generators availing of the benefit of the Renewable Energy Certificate (REC)], which have not yet completed 10 [ten] years from the date of commercial operation, as on 31.03.2018, shall be:

¶556

[a] liable to pay 25% [twenty five percent] of the normal Transmission Charges and/or Wheeling Charges, payable in cash, as determined by the Commission in its Tariff Orders, issued from time-to-time, transmitting/wheeling electricity using the network of the Transmission Licensee/Distribution Licensee, as the case may be; and,

¶557

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¶558

[b] xxxxx

¶559

[c] xxxxx

¶560

[2] [a] The Solar Power Projects commissioned on or earlier to 31.03.2017 shall be continued with the existing concessional Charges.

¶561

[b] For the Wind Power Projects commissioned during the period between 10.10.2013 and 03.09.2017, 25% [twenty-five percent] of the normal Transmission Charges and/or Wheeling Charges, in cash, alone shall be levied, exempting the levy of the line loss, in kind;”

¶562

(c) The Solar Power Projects commissioned on or earlier to 31.03.2017 shall be continued with the existing concessional charges:

¶563

For the Wind Power Projects commissioned during the period between 10.10.2013 and 03.09.2017, 25% (twenty five percent) of the normal Transmission Charges and/or Wheeling charges, in cash, alone shall be levied, exempting the levy of the line loss, in kind.

¶564

In the background as aforesaid, the points

¶565

that arise for consideration before this Court are:

¶566

Whether the writ petitions are maintainable circumventing the alternative remedy of

¶567

88 -

¶568

appeal provided under Section 111 of the Act?

¶569

Whether the KERC is estopped from withdrawing the exemption granted on the wheeling and banking charges before the completion of term period by virtue of doctrine of promissory estoppel?

¶570

Whether the order impugned suffers from discrimination and thus hit by Article 14 of the Constitution of India?

¶571

Whether existence of judicial member is sine qua non for the Tribunal to pass the orders?

¶572

Whether in the absence of the Regulation framed under Section 181 of the Act, the KERC is empowered to interfere or revise the wheeling and banking charges with the existing contractual relationship between the regulated entities?

¶573

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¶574

Re: Point No.1

¶575

20. In Karnataka Power Transmission

¶576

Corporation Ltd. Vs. R.K. Powergen Pvt. Ltd.⁵ the

¶577

Hon’ble Apex Court at paras 14 and 15 has observed thus:

¶578

“14. The next question which requires consideration is assuming that this Court can entertain the Writ Petition notwithstanding there being an alternate and efficacious remedy by way of an appeal before the Tribunal, the Courts are empowered or for that matter have enough machinery to deal with a situation like this. The Apex Court in the case of W.B. Electricity Regulatory Commission v. Cesc Ltd., (Supra) has observed as follows:

¶579

"The Commission constituted under Section 17 of the 1998 Act is an expert body and the determination of tariff which has to be made by the Commission involves a very highly technical procedure, requiring working knowledge of law, engineering, finance, commerce, economics and management, It would be more appropriate and effective if a statutory appeal is provided to a similar expert body, so that the various questions which are factual and technical that arise in such an appeal, get appropriate consideration in the first

¶580

5 ILR 2005 KAR 5468

¶581

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¶582

appellate stage also. The Central Electricity Regulatory Commission which has a judicial member as also a number of other members having varied qualifications, is better equipped to appreciate the technical and factual questions involved in the appeals arising from the orders of the Commission. Neither the High Court nor the Supreme Court would in reality be appropriate appellate forums in dealings with this type of factual and technical matters. Therefore, it is recommended that the appellate power against an order of the State Commission under the 1998 Act should be conferred either on the Central Electricity Regulatory Commission or on a similar body."

¶583

It is brought to my notice that a Appellate Tribunal as contemplated under Section 111 of the Act has already been formed and is functioning. A notification to that effect is also produced. It is also brought to my notice that all three members of the Appellate Tribunal have already been appointed and assumed the office on 13.5.2005. In the circumstances the question of entertaining this petition when there is an alternate and efficacious remedy for redressal of the petitioner's grievance is available there is no reason as to why this Court should exercise its powers under Articles 226 and 227 of the Constitution and deal with the technical matter. In my considered view the grievance of the petitioner should be

¶584

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¶585

decided by the Appellate Tribunal consisting of experts.

¶586

Another reason as to why this Writ Petition cannot be entertained is because, as stated in the body of the Writ Petition itself, since there is no appellate Tribunal as yet formed, the present Writ Petition is filed. But however during this interregnum, the Appellate Tribunal has already come into effect and is functioning.”

¶587

The said judgment was rendered in the context of the company filing the writ petition aggrieved by the termination of the power purchase agreement wherein the content of the writ petition disclosed that no appellate Tribunal was constituted, however during the pendency of the writ petition, the appellate Tribunal having been formed and started functioning this court relegated the generator company to the appellate jurisdiction.

¶588

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¶589

21. In Whirlpool Corporation vs. Registrar of

¶590

Trade Marks Mumbai and others⁶ , the Hon’ble Apex

¶591

Court at paras.15 and 20 has held thus:

¶592

“15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of caselaw on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.

¶593

Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite

¶594

6 Civil Appeal No.5201/1998 (D.D.26.10.98)

¶595

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¶596

of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.”

¶597

Thus, it is clear that the self imposed restrictions of alternative remedy as a bar for entertaining writ petition is not applicable where the orders or proceedings are without jurisdiction or where there has been a violation of the principle of natural justice or the vires of the Act is challenged or for enforcement of fundamental rights. Moreover, it is the discretion of the court to entertain or not. Considering the issue of wider magnitude involved coming within the exception clause of entertaining the writ petitions despite the availability of the alternative remedy, this Court finds it appropriate to entertain the writ petition and to adjudicate the matter on merits.

¶598

94 -

¶599

Re: Point No.2

¶600

The order dated 18.08.2014 of the KERC Broachers of the Invest Karnataka 2016 as well as the subsequent orders dated 30.07.2015 and 12.04.2017 of the KERC indicates the promise/assurance made by the KERC and the Government of Karnataka inviting the entrepreneurs/investors across the globe specifying the exemption/concession on the wheeling and banking charges with reference to solar projects/wind projects/mini hydel projects.

¶601

Much reliance is placed by the KERC on the agreement clause at 12.6 which deals with the amendment. The agreements/ contract in question is not a mere private contract between private parties. The State through its instrumentality viz., the KERC has entered into a contract in exercise of its statutory powers under the Act which partakes the power of statutory contract. The contract with

¶602

95 -

¶603

promises/assurances stands on a different footing from the statutory contract without such assurances/promises. The statutory agreement incorporates the earlier orders granting exemption and concession for a period of ten years from the commissioning date through all those projects commissioned before 31.3.2018. The statutory contract is ameanable to doctrine of promissory estoppel. The Hon'ble Apex Court in the case of Pawan Alloys & Casting Private Limited Vs. U.P. State Electricity Board and others⁷ held that even though the companies/appellants have succeeded in convincing the Court that the earlier notifications contained a clear promise and representation by the Board to the prospective new industrialists that once they established their industries in the region within the territorial limits of the operation of the Board, they would be assured 10% rebate on the total bills

¶604

7 ((1997)7 SCC page 251)

¶605

96 -

¶606

regarding consumption of electricity by their industries for a period of three years from the initial supply of electric power to their concerns, the appellants will not be enable to enforce the equity by way of promissory estoppel against the expiry of three years as available to the appellants concerned. It is also held that even if such withdrawal of development rebate prior to three years is not based on any overriding public interest, if it is shown that by such premature withdrawal the appellant promises would be restored to status quo ante and would be placed in the same position in which they were prior to the grant of such rebate by earlier notifications the appellants would not be entitled to succeed. The relevant passages of Pawan Alloys is extracted hereunder:

¶607

“ 31. In the light of this settled legal position we, therefore, hold that even though the appellants have succeeded in convincing us that the earlier three notifications dated 29th October 1982, 13th July 1984 and 28th

¶608

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¶609

January 1986, did contain a clear promise and representation by the Board to the prospective new industrialists that once they established their industries in the region within the territorial limits of the operation of the Board, they would be assured 10% rebate on the total bills regarding consumption of electricity by their industries for a period of three years from the initial supply of electric power to their concerns, the appellants will not be able to enforce the equity by way of promissory estoppel against the Board if it is shown by the Board that public interest required it to withdraw this rebate even prior to the expiry of three years as available to the appellants concerned. It has also to be held that even if such withdrawal of development rebate prior to three years is not based on any overriding public interest, if it is shown that by such premature withdrawal the appellant-promisees would be restored to status quo ante and would be placed in the same position in which they were prior to the grant of such rebate by earlier notifications the appellants would not be entitled to

¶610

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¶611

succeed. We, therefore, now proceed to examine these twin aspects of the controversy.

¶612

Under these circumstances when no public interest was sought to be pressed in service by the Board for withdrawal of this incentive rebate, as seen earlier, the equity which had arisen in favour of the appellants remained untouched and undisturbed by any overwhelming and superior equity in favour of the Board entitling it to withdraw this development rebate in a premature manner leaving these promisees high and dry before the requisite period of three years earlier guaranteed to them by way of development rebate had got exhausted. This takes us to the consideration of the second aspect of the matter.

¶613

In the view of the High Court despite the equity by way of promissory estoppel being available to the appellants against the Board, as the appellants themselves had agreed by entering into written agreements and contracts with the Board when they took electric connections for

¶614

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¶615

their industries, that the Board had power to change the rate schedules from time to time and to revise them, the appellants were barred from challenging the impugned notification. Now it must be kept in view that as per the incentives offered to the new industries the Board had promised these new industrialists that for three years from the date on which they took electric supply for the first time for their industries they would be given 10% rebate on the total bill of electricity consumption charges for their industries. It is not in dispute that before electric supply could be made available to these new industries who would be new consumers to be enrolled by the Board these consumers had to enter into standard agreements. Such agreements had to be signed and entered into by all the prospective consumers whether they were covered by any incentive scheme or not. It is also an admitted position that all the appellants while taking electric connections for the first time for their new industries established by them in the region relying upon the incentives offered by the Board,

¶616

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¶617

entered into such written agreements in standard forms. The relevant clauses of these agreements on which strong reliance was placed by the High Court of non-suiting the appellants, deserve to be extracted in extenso at this stage :

¶618

"7. (a). The consumer shall pay for the supply of electric energy at the rates enforced by the supplier from time to time as may be applicable to the consumer.

¶619

(b) The Rate Schedule applicable to the consumer at the time of execution of this agreement is annexed hereto as Annexure-2.

¶620

(c) The Rate Schedule above mentioned, may, at the discretion of the supplier, be revised by the supplier from time to time and in the case of revision, the Rate Schedule so revised shall be applicable to the consumer."

¶621

According to the High Court once the consumers agreed to the authority of the Board to revise earlier rate schedule which was existing at the time of the agreement and as item 8 was a part and parcel of the said rate schedule implicit in Clause 7(c) was the

¶622

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¶623

agreement by the appellant-consumers that the Board will be able to tinker with or even wholly withdraw the development rebate earlier made available as per the said item 8 of the rate schedule.

¶624

It is difficult to appreciate how the High Court could persuade itself to hold in the light of Clause 7(c) that the appellants while signing such agreements for taking electricity supply for the first time for their new industries as if by sidewind agreed of give up their right to claim development rebate by handing over on a platter an absolute right to the Board to totally withdraw such development rebate at any time it liked before the three years' period, for which incentive was meant to be guaranteed, would have expired. On the express language of Clause 7(a), (b) and (c) such a conclusion is impossible to be arrived at.

¶625

It would be totally absurd and incongruous to suggest on behalf of the Board that on the one hand it guaranteed to the new industrial units for a period of three years from the date of commencement of supply

¶626

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¶627

10% development rebate of the total amount of the bill and on the other hand moment such supply started pursuant to the written agreement the very incentive could be withdrawn by it from its inception as new industrial unit had to sign a written agreement containing Clause 7 (a), (b) and (c). If that submission on behalf of the Board which appealed to the High Court is accepted a most incongruous, unreasonable and absurd result would follow. It can then be said that the Board on the one hand had given incentive to new industries by guaranteeing development rebate of 10% on the total bill of consumption of electricity for a period of three years from the date of commencement of supply but from the very inception of that period the Board on the other hand as per the very agreement with the promisee was enabled to immediately withdraw the very same development rebate in exercise of its contractual powers as per clause 7(c) of that very agreement. If that happens the Board would be giving on the one hand incentive to new industries by way

¶628

- 103 -

¶629

of development rebate of 10% and by another hand would immediately and almost simultaneously be withdrawing the said incentive by pinning down the consumer to the terms of the agreement as found at clause 7(a), (b) and (c). This would result in a total exercise in futility. The incentive development rebate scheme would in such an eventuality be still-born. It is also easy to visualize that a new industrial unit which spends large amounts for establishing its infrastructure and gets lured in the light of the representation held out by the Board and establishes its plant and machinery in the new unit, would not simultaneously and voluntarily agree by signing such an agreement with the Board to give up the very same benefit of incentive by permitting the latter to withdraw it at any time it likes. That would be doing violence to common sense and business approach of an ordinarily prudent businessman. No businessman in his senses would ever voluntarily to such an absurd, incongruous and inconsistent predicament.

¶630

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¶631

As a result of the aforesaid discussion on these points the conclusion becomes inevitable that the appellants are entitled to succeed. It must be held that the impugned notification of 31st July 1986 will have no adverse effect on the right of the appellant-new industries to get the development rebate of 10% for the unexpired period of three years from the respective dates of commencement of electricity supply at their units from the Board with effect from 1st August 1986 onwards till the entire three years period for each of them got exhausted. This result logically follows for the appellants who have admittedly entered into supply agreements with the Board as new industries prior to 1st August 1986. However those appellants who entered into such agreement after 1st August 1986 cannot get benefit of development rebate any longer after 1st August 1986. This conclusion of ours pertains to the question which is no longer res integra. It is already so held by this Court in S.L.P. (C) No. 11906 of 1994 and others decided by a Bench of this Court consisting of A.M.

¶632

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¶633

Ahmadi, CJ. (as His Lordship then was) and S.P. Bharucha, J., in the case of Hotz Hotel Pvt. Ltd. Etc. Etc./Vaidya Ply Board & Anr. v. U.P.S.E.B. & Anr. Etc. Etc. on 3rd October 1994. We find that the appellant in Civil Appeal No. 1713 of 1991 executed agreement with the Board for the first time on 5th May 1987. Similarly appellant in Civil Appeal No. 3534 of 1991 executed agreement with the Board for the first time after 1.8.1986. These appellants, therefore, will not be entitled to get out of the sweep of the impugned notification. These appeals will, therefore, have to be dismissed.”

¶634

In the present set of facts, it is not in dispute that as per the exemption offered to the RE plants the KERC had promised the petitioners that for 10 years from the date on which they commissioned the solar projects, they would be exempted from wheeling and banking charges. Concession of tariff was granted with respect to wind/Mini hydel projects.

¶635

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¶636

The statutory contract has been signed and

¶637

entered with the State through its instrumentality, the KERC. It would not be justifiable on behalf of the Commission that on guarantying the exemption/concession of wheeling and banking charges to the new RE projects who have commissioned the said projects on or before 31.3.18 and on the other hand, to withdraw the said exemption based on the agreement clause. A new solar/wind/mini hydel project unit which spends huge amounts for establishing its infrastructure in view of the promise/assurance made by the Commission and after certain period to withdraw the said exemption subcategorizing the projects who invested and commissioned before 31.3.2017 and after 31.3.2017 would be incongruous and hit by Article 14 of the Constitution and the principles of promissory estoppel. In this context, the objections filed by the KERC do not establish any supervening public interest that prevailed to withdraw the exemption even prior to

¶638

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¶639

the 10 years period as available to petitioners concerned. Neither in the impugned order nor in the statement of objections filed by the KERC no satisfactory reasons of public interest warranting such withdrawal is cited. In the absence of supervening public interest established by the KERC, withdrawing of the exemption/concession in a premature manner giving the assurances/promises a go-by before the requisite period of 10 years guaranteed by the orders dated 14.07.2014 and 18.8.2014 of the KERC as well as the global investment brochure issued by the Energy Department, Government of Karnataka to attract the investors cannot be left in lurch in the mid stream. It is also not possible for the promisee now to restore back to the original status after acting up on the promises/assurances made. Once the new

¶640

solar/wind/mini hydel plants have been invited by projecting exemption/concession on wheeling and banking charges in the State of Karnataka and being

¶641

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¶642

assured with 10 years guarantee on such exemption/concession and acting on the same and the promisee established their projects and spend lot of amount for constructing the infrastructure and the related employment expenses, it would be difficult for them to restore the status quo ante and walk out mid stream relating to the unexpired period out of the ten years guaranteed. Thus the twin tests propounded by the Hon'ble Apex Court in Pawan Alloys, supra is not satisfied by the KERC to disown the Doctrine of promissory estoppel.

¶643

The arguments advanced by the learned

¶644

AGA, that the Global Investors Meet brochures is not a state policy and any promise or assurance made in such investors meet would not be binding on the State, requires to be negated. All such assurances/promises were made in the brochures in invest Karnataka 2016 GIM declaring and reiterating the availability of the

¶645

- 109 -

¶646

benefits of wheeling, banking and cross subsidy surcharge for all RE plants commissioned between 1.4.2013 and 31.3.2018. Even in the solar policy of the Government 2014 to2021, the tariff shall be applicable as fixed by the KERC.

¶647

The contention of the respondent-state as well as the KERC that the principles of promissory estoppel enunciated in the case of Motilal Padmat Sugar Mills Vs. State of U.P. reported in (1979)2 SCC 409 has been diluted in Jit Ram and others Vs. State of Haryana - AIR 1988 SC 1285 is unsustainable. The principles laid down in Motilal Padmat Sugar Mills still holds the field as held by the Hon'ble Apex Court in Nestle India Limited.

¶648

In the case of State of Punjab V/s. Nestle India

¶649

Ltd.,⁸ the Hon'ble Apex Court has held thus:

¶650

“34. The discordant note struck by Jit Ram case [[1981] 1 SCC 11 : [1980] 3 SCR

¶651

8 [2004] 6 SCC 465

¶652

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¶653

689] was firmly disapproved by a bench of three Judges in Union of India & Ors. v. Godfrey Philips India Ltd. (1985) 4 SCC 369. It was affirmed that: [SCC p.387, para 12]

¶654

"12. There can therefore be no doubt that the doctrine of promissory estoppel is applicable against the Government in the exercise of its governmental, public or executive functions and the doctrine of executive necessity or freedom of future executive action cannot be invoked to defeat the applicability of the doctrine of promissory estoppel".

¶655

In any event judicial discipline requires us to follow the decision of the larger Bench. The facts in the present case are similar to those of prevailing in Godfrey Philips (supra). There too, as we have noted earlier, the statutory provisions require exemption to be granted by notification. Nevertheless, the Court having found that the essential pre-requisites for the operation of promissory estoppel had been established, directed the issuance of the exemption notification.

¶656

The appellants have been unable to establish any overriding public interest which would make it inequitable to enforce the estoppel against the State Government. The representation was made by the highest authorities including the Finance Minister in his Budget Speech after considering the financial implications of the grant of the

¶657

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¶658

exemption to milk. It was found that the overall benefit to the state's economy and the public would be greater if the exemption were allowed. The respondents have passed on the benefit of that exemption by providing various facilities and concessions for the upliftment of the milk producers. This has not been denied. It would, in the circumstances, be inequitable to allow the State Government now to resile from its decision to exempt milk and demand the purchase tax with retrospective effect from 1-4-1996 so that the respondents cannot in any event re-adjust the expenditure already made. The High Court was also right when it held that the operation of the estoppel would come to an end with the 1997 decision of the Cabinet.”

¶659

It is thus held that the speech made by the Finance Minister after considering financial implications of the grant of the exemption to milk is binding on the State and it would be inequitable to allow the State Government to resile from its decision applying the principles of promissory estoppel.

¶660

The orders dated 30.7.2015 and 12.4.2017

¶661

of the KERC confirms, reiterates the benefits of exemption allowed in wheeling, banking and cross

¶662

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¶663

subsidy surcharge and confirms the continuity of the same in terms of clause ‘d’ of the order dated 30.7.2015 and 12.4.2017 which reads thus:

¶664

Order dated 30.7.2015:

¶665

and banking charges and cross subsidy surcharge:

¶666

The Wheeling, Banking and Cross Subsidy surcharge shall be applicable as per Commission’s Order dated 18^th August 2014.”

¶667

Order dated 12.4.2017:

¶668

“ (d) Applicability of wheeling and banking charges and cross subsidy surcharge:

¶669

A stakeholder has sought clarification as to, whether the exemption allowed in Wheeling, Banking and Cross Subsidy surcharge would continue with the new tariff order.

¶670

The Commission hereby clarifies that the tariff Order is to determine the applicable tariff for Solar PV plants coming in the State during FY 18 and

¶671

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¶672

the Wheeling, Banking and Cross Subsidy surcharge shall remain applicable as per Commission’s Order dated 18^th August 2014.”

¶673

In such circumstances, the change of

¶674

circumstances pleaded by the KERC to contend that the doctrine of promissory estoppel is not applicable to the petitioners inasmuch as the installation capacity of solar power which was 41 MW as on 18.8.2014 has increased to 1698 MW as on November 2017 and it is anticipated to touch 6000 MW by the end of financial year 2019 would not be countenanced as the increase in the capacity has happened with the consent of the Government of Karnataka, KERC and the ESCOMS and they having permitted such an increase in the capacity, having achieved their objective of increasing RE power, the benefits granted to the power projects cannot be withdrawn against the interest of the petitioners more particularly in view of the clarification issued by the

¶675

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¶676

orders dated 30.07.2015 and 12.04.2017. Such

¶677

withdrawal of exemption would be against the public interest also, inasmuch as, if such exemptions are withdrawn, not only it would affect the financial viability of the petitioners but also would make the petitioners suffer monetary loss of huge amount thereby affecting the economy as such as the loans which could run into thousands of crores of rupees given to the various power generators could not be recovered and the very financial equilibrium of economy would be in peril. The action of the banks refraining from altering the existing guidelines for commissioned projects pursuant to the impugned order if considered, indeed public interest would suffer owing to the incapacity of the power projects repaying the loans borrowed by the banks. These power plants have a long gestation period spanning across 25 years. The concessions are only for 10 years. A cooling period or tariff holiday cannot be

¶678

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¶679

withdrawn and trap the investors after securing the investments.

¶680

In the aforesaid circumstances, placing reliance on clauses 5 and 12.6 of the PPA, the statutory contract cannot be revised by the KERC much against the promises/assurances made. The doctrine of promissory estoppel is squarely applicable in the present fact situation.

¶681

Re: Point No.3

¶682

The RE generators obviously constitute a homogeneous single class. The orders dated 14.07.2014 and 18.8.2014 recognized all the wind/mini hydel/solar power generation commissions from 1.4.2013 to 31.3.2018 as one single class without any sub-classification. The sub-classification now sought to be made upto 31.3.2017 and withdrawing the classification after 1.4.2017 is nothing but an artificial classification without any basis and is perverse. No

¶683

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¶684

doubt the learned Senior counsel appearing for the KERC made an endeavour to argue that the capital cost of the projects has drastically come down and the petitioners are making super profits, the same cannot be a ground for sub-classification.

¶685

In order to examine the sub-classification

¶686

whether is hit by Article 14 of the Constitution, it is apt to refer to the relevant passage in the case of Dharam

¶687

Dutt and Others V/s. Union of India and Others reported in [2004] 1 SCC 712, the same is quoted hereunder:

¶688

“56. Article 14 of the Constitution prohibits class legislation and not reasonable classification for the purpose of legislation. The requirements of the validity of legislation by reference to Article 14 of the Constitution are: that the subject matter of legislation should be a well-defined class founded on an intelligible differentia which distinguishes that subject-matter from the others left out, and such differentia must have a rational

¶689

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¶690

relation with the object sought to be achieved by the legislation. The laying down of intelligible differentia does not, however, mean that the legislative classification should be scientifically perfect or logically complete.”

¶691

It is thus clear that two factors have to be

¶692

fulfilled to uphold the validity of sub-classification by reference to Article 14 of the Constitution viz., the subject matter classification should be founded on an intelligible differentia which distinguishes that subject matter from the others left out and secondly, such differentia must have a rational nexus with the object sought to be achieved. That a RE power plant has a long gestation period across about 25 years. Before concessional period, the proposal was in order of 3 MW and after the withdrawal it is around 30 MW, but during the concessional period it attracted an investment of 2000 MW. It is thus self evident that the investments had come into the State only because of the exemption or tariff holiday. Inviting the investors with incentive of

¶693

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¶694

exemption on wheeling and banking charges and then turning round making sub categorization between the projects commissioned between 1.4.2013 to 31.3.2017 and the projects commissioned between 1.4.2017 to 31.3.2018 is not a reasonable classification. The same fails to withstand the test of intelligible differentia. There is no rational nexus to the objective to be achieved in sub-classifying a homogenous class. As could be seen from the details furnished by the petitioners, to commission the project between 1.4.2017 to 31.3.2018, the process had begun during 2015-16 and finally the commissioning certificates were issued between 1.4.2017 and 31.3.2018. If a uniform scheme had been applied for all the projects commissioned between 1.4.2013 and 31.3.2018 that would have been different aspect but discriminating the RE plants commissioned between 1.4.2017 to 31.3.2018

¶695

would be discriminatory and cannot be approved.

¶696

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¶697

33. Several judgments referred to, by the

¶698

learned Senior counsel for the ESCOMS to contend that a cut off date prescribed by the Commission, will not invalidate the order impugned, would relate to the service matters. Fixing a cut off date in the service matters stands on a different footing with respect to the investment made by the entrepreneurs based on the promise/assurance given by the State.

¶699

Re: Point No.4

¶700

This issue is no more res integra in view of the dictum enunciated by the Hon'ble Apex Court in the case of Utility Users Welfare Association and others, supra, and the clarificatory order thereto. Moreover, it is not in dispute that the Tribunal is now functioning with the judicial members.

¶701

Re: Point No.5

¶702

In the case of the Gujarat Urja Vikas Nigam Limited V/s. Tarini Infrastructure Limited

¶703

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¶704

and others⁹ , the Hon'ble Apex Court conceding the contention of the appellant Tharini Infrastructure Limited, that under Clause 5[2] of the PPA wherein the appellant therein, was required to pay tariff as determined by the State Commission which would liable to escalation at 3% per annum and accordingly sought for the novation of the PPA to the extent of modification of tariff observed thus:

¶705

All the above would suggest that in view of Section 86(1)(b) the Court must lean in favour of flexibility and not read inviolability in terms of the PPA insofar as the tariff stipulated therein as approved by the Commission is concerned. It would be a sound principle of interpretation to confer such a power if public interest dictated by the surrounding events and circumstances require a review of the tariff. The facts of the present case, as elaborately noted at the threshold of the present opinion, would suggest that the Court must lean in favour of such a view also having due regard to the provisions of Sections

¶706

9 [2016] 8 SCC 743

¶707

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¶708

14 and 21 of the General Clauses Act, 1897. In this context, the views of this Court on the purport and effect of Sections 14 and 21 of the General Clauses Act may be re-noticed by extracting paras 47, 48 and 49 of the decision of this Court in D.K. Trivedi & Sons Vs. State of Gujarat.

¶709

As discussed in the preceding paragraphs there is no request made by either of the parties to the revision of the tariff on wheeling and banking charges but it is the suo motu action unilaterally initiated by the KERC to withdraw the exemption of tariff granted on wheeling and banking charges.

¶710

36. In PTC India Limited, supra, the Hon'ble

¶711

Apex Court has held thus:

¶712

One must understand the reason why a regulation has been made in the matter of capping the trading margin under Section 178 of the Act. Instead of fixing a trading margin (including capping) on a caseto-case basis, the Central Commission thought it fit to make a regulation which has a

¶713

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¶714

general application to the entire trading activity which has been recognized, for the first time, under the 2003 Act. Further, it is important to bear in mind that making of a regulation under Section 178 became necessary because a regulation made under Section 178 has the effect of interfering and overriding the existing contractual relationship between the regulated entities. A regulation under Section 178 is in the nature of a subordinate Legislation. Such subordinate Legislation can even override the existing contracts including Power Purchase Agreements which have got to be aligned with the regulations under Section 178 and which could not have been done across the board by an Order of the Central Commission under Section 79(1)(j).

¶715

While deciding the nature of an Order (decision) vis-a-vis a Regulation under the Act, one needs to apply the test of general application. On the making of the impugned Regulations 2006, even the existing Power Purchase Agreements ("PPA") had to be

¶716

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¶717

modified and aligned with the said Regulations. In other words, the impugned Regulation makes an inroad into even the existing contracts. This itself indicates the width of the power conferred on CERC under Section 178 of the 2003 Act. All contracts coming into existence after making of the impugned 2006 Regulations have also to factor in the capping of the trading margin. This itself indicates that the impugned Regulations are in the nature of subordinate legislation. Such regulatory intervention into the existing contracts across-the-board could have been done only by making Regulations under Section 178 and not by passing an Order under Section 79(1)(j) of the 2003 Act. Therefore, in our view, if we keep the above discussion in mind, it becomes clear that the word “order” in Section 111 of the 2003 Act cannot include the impugned 2006 Regulations made under Section 178 of the 2003 Act.

¶718

(i) In the hierarchy of regulatory powers and functions under the 2003 Act,

¶719

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¶720

Section 178, which deals with making of regulations by the Central Commission, under the authority of subordinate legislation, is wider than Section 79(1) of the 2003 Act, which enumerates the regulatory functions of the Central Commission, in specified areas, to be discharged by Orders (decisions)”.

¶721

37. The Hon'ble Apex Court in Gujarath Urja

¶722

Vikas Nigam Limited, supra has held that under regulations 80 to 82, the inherent powers of the State Commission which is akin to Section 151 of CPC, the power of the State Commission to regulate the conduct of the Commission i.e. to regulate its own procedure, the power cannot travel so as to alter the terms and conditions of the agreement entered into between the parties to grant substantive relief to the company by extending the control period of tariff order. In terms of Regulation 80, the inherent powers of the State Commission are saved to make such orders as may be

¶723

125 -

¶724

necessary:- (i) to secure the ends of justice; and (ii) to prevent abuse of process of the Commission. The inherent powers under Section 151 CPC are procedural in nature and cannot affect the substantive right of the parties. Hence inherent powers preserved under regulation 80 cannot affect a substantive right of the parties. This dictum with all force applies to the proceedings at hand.

¶725

It is the contention of the Commission and the State that the Commission has been conferred with the power to determine the tariff from time to time and it cannot be said that the Commission is functus officio once it has determined the price. The phrase ‘time to time’ emphasized would only mean that the KERC can determine wheeling and banking charges prospectively. Sections 62 and 64 conferred the power on the Commission to determine the tariff and once settled contracts have been entered into, based on the tariff

¶726

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¶727

orders, sans any request made by the either of the parties to the PPA, the KERC has not been conferred with the power to determine tariff from time to time.

¶728

Thus, the power of KERC to revisit the tariff

¶729

at the request of the regulated entities though is traceable to Section 21 of the General Clauses Act, 1897 in terms of the judgment of the Hon'ble Apex Court in the case of Shree Sidhabali Steel Vs. State of Uttar

¶730

Pradesh¹⁰ as well as Tarini Infrastructure Limited and Others, supra, considering the wider impact of withdrawing the exemption/concession by the KERC suo moto as observed by the Hon'ble Apex Court in PTC

¶731

India Limited, supra and Gujarat Urja Vikas Nigam Limited, supra, inasmuch as exercising the inherent powers in terms of Regulation No.11 of OA Regulations, Regulation under Section 181 would have been appropriate which has a general application to the entire trading activity.

¶732

10 (2011)3 SCC 193

¶733