Farmers' solar rooftop power purchase agreements with BESCOM were cancelled within four months despite a circular allowing one year to build roof tops. The court found no consensus on the agreement category and held the cancellation memoranda unsustainable.
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NC: 2024:KHC:30495 WP No. 4220 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 4220 OF 2017 (GM-RES)
BETWEEN:
Digitally signed by SUMA B N Location: High Court of Karnataka
AGED ABOUT 36 YEARS, S/O LOKESHWARAIAH, NO.87/2, KODAGAVALLI VILLAGE, HIREGUNTUNUR HOBLI,
CHITRADURGA DISTRICT -577 501.
CHITRADURGA DISTRICT- 577 501.
NC: 2024:KHC:30495 WP No. 4220 of 2017
NO.86/2, KODAGAVALLI VILLAGE, HIREGUNTUNUR HOBLI, CHITRADURGA DISTRICT-577 501.
…PETITIONERS
(BY SRI. H.C. SHIVARAMU, ADVOCATE FOR SRI. MOHAN P S.,ADVOCATES)
AND:
BANGALORE-560 001.
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH CIRCULAR DATED.22.03.2016 VIDE ANNEXURE-E AND OFFICIAL MEMORANDUM DATED: 22.03.2016 AND IMPUGNED OFFICIAL MEMORANDUM DATED:26.07.2016 VIDE ANNEXURES-F1 TO F5, PASSED BY THE RESPONDENT.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
ORAL ORDER
Petitioners are before this Court being aggrieved by the Official Memorandums of even dated 26.07.2016 produced at Annexures-F1 to F5 in and by which the respondent No.3BESCOM has sought to cancel the power purchase agreements which were entered into by the petitioner individually with the respondent Nos.3 and 4. A relief is also sought seeking quash of a Circular dated 22.03.2016 produced at Annexure-E by which the respondent-State has sought to withdraw its earlier circular dated 10.12.2015.
land at Kodagavalli Village, Hireguntur Hobli, Chitradurga Taluk and District entered into Power Purchase Agreement for Solar Roof Top Photovoltaic (SRTPV) plans with the
NC: 2024:KHC:30495 WP No. 4220 of 2017
respondent-BESCOM on 14.03.2016 in terms of which the respondent-BESCOM agreed to purchase and the petitioners agreed to supply power generated from their Solar Roof Top Photovoltaic (SRTPV) systems. The term of the agreement is for 25 years. It appears as per the circular dated 10.12.2015 (Annexure-B) issued by the respondent-State Government with an intent to encourage the roof top solar power generation, had provided period of one year for completion of construction of roof top. Contention of the petitioner is that even before the completion of said period of one year the respondent-BESCOM has sought to cancel the Power Purchase Agreements in terms of impugned Official Memorandums dated 26.07.2016 (Annexure-F1 to F5) constraining them to approach this Court.
agreements enabling them to put up construction of roof to install the power panels. He also refers to the terms of the power purchase agreement which is produced at AnnexureC2 to contend that the agreement is for a period of 25 years,
and when the petitioners have a period of one year as per circular produced at Annexure-B to put up the roof top, that even before the expiry of the said period the impugned Official Memorandums at Annexures-F1 to F5 have been issued by the respondents illegally terminating the power purchase agreements, which are otherwise valid for a period of 25 years.
NC: 2024:KHC:30495 WP No. 4220 of 2017
is his further submission that, even on merits the reasons assigned in the Official Memorandums at Annexures-F1 to F5 issued by the respondent No.3 seeking to cancel the agreements do not apply to the facts situation of the case of the petitioners. As such he seeks for allowing of the petition.
NC: 2024:KHC:30495 WP No. 4220 of 2017
Government Advocate appearing for the respondent-State justifying withdrawal of the circular dated 10.12.2015 produced at Annexure-D by the subsequent circular dated 22.03.2016 at Annexure-E submits that the very language applied in the Solar Power Policy is to encourage the prospective beneficiaries to adopt solar roof top projects. He submits that the contention of the petitioners entering into agreements without having roof top cannot be accepted as even going by contexts of the agreement which is produced at Annexure-C1, wherein at recital No.b the petitioners have represented themselves to be owning roof top even at the time of entering into said agreements. Thus it is his contention withdrawal of the circular dated 10.12.2015 would have no effect whatsoever on the petitioners rights as the purported benefit of one year to put up roof top is not available to them. Hence, seeks for rejection of prayer for quashing of the circular at Annexure-E.
"Petitioners as well as respondent-BESCOM to furnish the application filed by the petitioners to ascertain if they had sought to enter into agreement with the BESCOM on the assurance of they putting up the construction to utilise the roof top for generating solar power or whether they represented that they already had the building in place, roof of which they sought to utilise for generating solar power. If it is found that petitioners never had building in the place when they made applications, respondents to clarify as to why the petitioners were not entitled for one year period as per the circular produced at AnnexureB and as to why they terminated the agreement within three months thereof."
free area of Rooftop available in Sq.mts " submits that in every application invariably the petitioners have indicated that they are already possessing 10,000 Sq.mts of roof top. He submits that it is on the basis of these representations the agreements in the said Format-1 have been entered into and that subsequently on verification/inspection it was found
NC: 2024:KHC:30495 WP No. 4220 of 2017
that there was no roof top existing as represented in the applications resulting in issuance of the Official
Memorandums at Annexure-F1 to F5.
agreements that are being entered into under the Solar Policy 2014-2020 , learned Senior Counsel referred to the categories of the project which are sought to be promoted under the said policy. Referring to page No.5 of the said policy wherein under the heading ''Segment-1-Utility Scale Grid Connected Solar Photovoltaic (P-V) and Concentrated Solar Power (CSP) Projects'', he pointed out that there are six categories of the project under the said segment, category No.1 is the project to promote distributed generation by land owning farmers through out the State. In that he submits that the farmers who owned the uncultivable land are also being encouraged to put the said uncultivable land for better use by utilizing the options under the Solar
Power Policy. He further submits that perhaps the petitioners who claim to own vast tracts of agricultural land may fall in the said category. He submits that this factual
aspect of the matter was apparently discovered on respondent-Authorities inspecting the lands and having found that the petitioners had not even obtained the permission for change of land usage and had not even applied for the sanction plan for the construction of roof top, which are the actual reasons reflected in the impugned Official Memorandums and same cannot be found fault with.
He however fairly submits that perusal of the applications which have been received by the respondent-Authorities do not indicate that the said applications were filed under this category, which anomaly requires to be addressed at the respondents end.
submissions of learned counsel for the parties one thing which emanates is that both the petitioners as well as the respondent Nos.3 and 4 are not clear as to the nature/category of the power purchase agreements which they have entered into. While the Format-1 under which the petitioners seem to have submitted their applications to
enter into power purchase agreement indicate, they representing to have already been owning 10,000 Sq.mtrs of roof top. While on the other hand, the contents of the impugned Official Memorandums seeking to cancel the said agreements would indicate that respondent-Authorities were clear, that they have entered into agreement in the nature of Category-1. Thus, there is a complete loss of consensus between the parties. It is necessary to extract the reasons assigned in the Official Memorandum at Annexures-F1 to F5, one of which reads as under:
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indicate that same would apply in respect of agreements which could have been entered into in respect of open vacant, non-cultivable land which falls under category-1 of segment-1 of solar policy 2014-2021, even as indicated by the learned Senior Counsel for the respondent-BESCOM. If that is taken into consideration, the petitioners would definitely be entitled for a period of one year to put up the roof top as per the terms of circular dated 10.12.2015. The agreements in question are dated 14.03.2016 and the Official Memorandums are dated 26.07.2016, which are issued just within a period of four months. Achieving such an impossible task of putting up 10,000 Sq.mts of roof top by the petitioners and expectation of the same on the part of
the respondent-Authorities cannot be countenanced. Even as seen in statement of objections filed by the respondent Nos.2 and 4 at para No.13 it is contended that the petitioners were required to install SRTPV system within one year from the date of execution of the agreements that is on or before 13.03.2017. That being the case, issuance of the Official Memorandums within four months is arbitrary and unjustifiable.
purpose of this petition, for the reasons noted above this Court is convinced that the Official Memorandums produced at Annexures-F1 to F5 all dated 26.07.2016 issued by the respondent No.3 are required to be quashed. Accordingly, the same are quashed.
With the above observations, petition is disposed of .
Sd/(M.G.S. KAMAL) JUDGE
RL
List No.: 1 Sl No.: 20
2 issues framed by the court
Whether the Official Memoranda cancelling the petitioners' solar rooftop power purchase agreements within four months of execution were arbitrary and unsustainable.
Whether withdrawal of the State circular dated 10.12.2015 granting one year to construct roof tops prejudiced the petitioners' rights.
2 provisions across 1 enactments
Sri. Lokeshwaraiah
Smt Vijayalakshmi
Yogeshwara
Pavan
Smt Ramya
The State of Karnataka rep by its Chief Secretary
M.G.S. KAMAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
