Karnataka Power Transmission Corporation Ltd. Vs Karnataka Electricity Regulatory Commission

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NC: 2025:KHC:43003 WP No. 20683 of 2025

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28^TH DAY OF OCTOBER, 2025

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BEFORE

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THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA WRIT PETITION NO.20683 OF 2025 (GM-KEB)

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BETWEEN:

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KARNATAKA POWER TRANSMISSION CORPORATION LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT CORPORATE OFFICE, 2^ND FLOOR, KPTCL, KAVERI BHAVAN, BENGALURU-560009. EMAIL ID – [email protected] REPRESENTED HEREIN BY ITS FINANCIAL ADVISOR, REGULATORY AFFAIRS.

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…PETITIONER

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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(BY SRI SRIRANGA S., SENIOR COUNSEL FOR SMT. SUMANA NAGANAND, ADVOCATE)

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AND:

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KARNATAKA ELECTRICITY REGULATORY COMMISSION HAVING ITS REGISTERED OFFICE AT NO.16, C-1, MILLERS TANK BED AREA, KAVERAPPA LAYOUT, VASANTH NAGAR, BENGALURU-560052 EMAIL ID – [email protected] REPRESENTED HEREIN BY ITS SECRETARY.

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HC-KAR

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SOLITAIRE POWERTECH PRIVATE LIMITED, A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS OFFICE AT

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239, OKHLA INDUSTRIAL ESTATE PHASE III, NEW DELHI – 110020. EMAIL ID – [email protected] REPRESENTED HEREIN BY ITS ADDITIONAL DIRECTOR.

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SOLAR ENERGY CORPORATION OF INDIA LIMITED, A COMPANY ESTABLISHED BY THE MINISTRY OF NEW AND RENEWABLE ENERGY, GOVERNMENT OF INDIA, HAVING OFFICE AT 1^ST FLOOR, D-3, A-WING, DISTRICT CENTRE, RELIGAIRE BUILDING, SAKET, NEW DELHI – 110017 EMAIL ID: [email protected] REPRESENTED HEREIN BY ITS MANAGING DIRECTOR.

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…RESPONDENTS

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(BY SRI B.N. PRAKASH, ADVOCATE FOR R-1; SRI SAJAN POOVAYYA, SENIOR COUNSEL FOR SRI SAMARTH KASHYAP, ADVOCATE FOR R-2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 17.06.2025 (ANNEXURE-A) PASSED BY THE KARNATAKA ELECTRICITY REGULATORY COMMISSION IN ORIGINAL PETITION NO.07 OF 2024.

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THIS PETITION COMING ON FOR ‘ORDER’, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL ORDER

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The petitioner-Karnataka Power Transmission Corporation Limited (KPTCL) has called in question the order dated 17.06.2025 passed by the Karnataka Electricity Regulatory Commission (KERC) in OP No. 7 of 2024, where under the KERC directed payment of

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` 18,46,54,095/- towards compensation for generation loss to respondent No.2 - Mrs. Solitaire Powertech Private Limited (SPPL) for the period October 2021 to February 2024 and, further permitted additional compensation of

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` 3,08,06,220/- for the period of March to July 2024.

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Heard learned Senior Counsel Sri S Sriranga for the petitioner, learned Senior Counsel Sri Sajan Poovayya for respondent No. 2 and learned counsel for respondent No.1. Perused the material on record.

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Learned Senior Counsel appearing for respondent No. 2 raised a preliminary objection of maintainability.

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Learned Senior Counsel submits that under Section 111 of the Electricity Act, 2003 the proper appellate forum is the Appellate Tribunal for Electricity ((APTEL)) and that the petitioner had earlier filed W.P. 19663/2021 which was dismissed by this Court on 10.12.2021 holding that the petitioner had equally efficacious remedy and the same cause of action is now sought to be reopened, amounting to forum shopping and abuse of process. Learned Senior Counsel for respondent No.2 contends that the Supreme Court's interim order dated 07.03.2025 merely stayed execution of 75% of the APTEL decree, while allowing 25% payment subject to bank guarantee, and did not restrain the Commission from proceeding with the adjudication of subsequent periods. The KERC in compliance with the Apex Court's order directed payment of instalment subject to the outcome of the pending appeal, and therefore no contempt or excess of jurisdiction arises.

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Learned Senior Counsel for the petitioner submits

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that the impugned order suffers from fundamental lack of jurisdiction and violation of the interim order passed by the Hon'ble Supreme Court dated 07.03.2025 in Civil Appeal No. 3458 of 2025. He contends that the KERC had become functus officio after passing the earlier orders dated 14.09.2021 and 19.12.2023, and could not reopen or extend those orders to determine compensation for subsequent periods. It is argued that once the Apex Court had stayed the operation of the order of the Appellate Tribunal for Electricity (APTEL) and directed conditional payment of 25% of the amount, the KERC was precluded from adjudicating the same subject matter in any form. Learned Senior Counsel places reliance upon the following decisions:

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(i) Vyshali Energy Private Limited And Others v.

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KPTCL and Others vs KPTCL¹ (Vyshali Energy) to contend that the rule of alternative remedy is not an

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1 Writ Appeal 757 of 2021, D.D 21.09.2021

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absolute bar, and that in cases involving pure questions of jurisdiction, arbitrariness, or violation of the fundamental rights, writ jurisdiction can be invoked.

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(ii) KSRTC v. Karnataka State Transport Authority² (KSRTC) and Renew Power Ltd. and Others vs Bangalore Electricity Supply Co. Ltd. and Others³ (Renew Power) and NSL Sugars Limited and Another v. Power Company of Karnataka Limited and Others⁴ (NSL Sugars Limited) to contend that this Court in similar circumstances, entertained Writ Petitions, notwithstanding the existence of statutory remedies, when the impugned orders are patently without jurisdiction or contrary to statutory provisions.

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(iii). Harbanslal Sahniya and Another vs Indian

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Oil Corporation Ltd. and Others⁵ (Harbanslal Sahniya)

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2 ILR 1983 KAR 436

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3 ILR 2019 KAR 2533

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4 W.P.55980 of 2017, D.D. 27.06.2024

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5 (2003) 2 SCC 107

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and contends that the Apex Court has carved out three recognized exceptions to the rule of alternate remedy. (1) enforcement of fundamental rights (2) violation of principles of natural justice and (3) lack of jurisdiction or challenge to the vires of a statute.

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(iv). Radha Krishan Industries vs State of Himachal Pradesh and Others⁶ (Radha Krishan Industries) and contends that even when alternative remedies exist, the High Court can exercise writ jurisdiction when the impugned action is wholly without jurisdiction or results in manifest injustice.

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(v). M/s. Godrej Sara Lee Ltd. vs the Excise and Taxation Officer-cum-Assessing Authority and Others⁷ (Godrej Sara Lee) , reiterating that mere availability of an alternative remedy does not bar exercise of jurisdiction if authority's order is arbitrary, illegal or ultra vires.

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6 ( 2021) 6 SCC 771

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7 Civil Appeal No. 5393 of 2010

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(vi). Jaipur Vidyut Vitran Nigam Ltd. and Others

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vs. Adhani Power Rajasthan Ltd. and Another⁸ (Jaipur Vidyut Vitran Nigam Limited) emphasize that the Regulatory Commission becomes functus officio after passing a final order, and cannot reopen proceedings to grant fresh relief until statutorily empowered.

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(vii). State Bank of India and Others vs S.N

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Goyal⁹ (S.N.Goyal) is relied upon to reinforce that once an authority becomes functus officio , it cannot revisit or extend its earlier determination.

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(viii). Ajay Kumar Jain vs State of Uttar Pradesh

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and Another¹⁰ (Ajay Kumar Jain) on the principle that jurisdictional error and breach of judicial discipline warrant interference under Article 226.

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8 2024 SCC Online SC 313

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9 (2008) 8 SCC 92

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10 Miscellaneous Application Diary No. 39665 of 2024

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(ix). Batliboi Environmental Engineers Ltd. vs

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Hindustan Petroleum Corporation Ltd. and

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Another¹¹ (Batliboi Environmental Engineers)

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(x). Unibros vs All India Radio¹² (Unibros) to

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contend that the quantification of damages must be based on contemporaneous evidence and material of the relevant period, not on extrapolation or assumption.

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Based on these precedents, it is contended that the KERC acted wholly without jurisdiction and its order being functus officio and that the Writ Petition is therefore maintainable notwithstanding the alternate remedy.

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Having heard the learned Senior Counsels for the parties, the points that arise for consideration is,

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(i). Whether the Writ Petition is maintainable in view of the availability of

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11 (2024) 2 SCC 375.

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12 2023 SCC Online SC 1366

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statutory appeal under Section 111 of the Electricity Act, 2003?

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(ii). Whether the KERC acted without jurisdiction in passing the impugned order dated 17.06.2025 in light of the Apex Court's interim order dated 07.03.2025?

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Point No. (i):

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The precedents cited by the petitioner in the cases of Vyshali Energy, KSRTC, Harbanslal Sahniya Radha Krishan Industries and Godrej Sara Lee undoubtedly laid down that the existence of an alternative remedy is not an absolute bar to the exercise of jurisdiction. However, the exception applies only in cases where (1) the order is passed without jurisdiction or (2) there is violation of natural justice, or (3) enforcement of fundamental right is involved. In the instant case, the impugned orders passed by the KERC is an exercise of the statutory powers under Section 86(1)(f) of the Electricity

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Act. The KERC order dated 17.06.2025 merely quantifies

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the continuing liability based on the earlier findings, as the previous orders themselves directed compensation, “till the transmission constraint subsists”. Section 111 of the Electricity Act reads as under :

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“111. Appeal to Appellate Tribunal.-

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(1) Any person aggrieved by an order made by an adjudicating officer under this Act (except under section 127) or an order made by the Appropriate Commission under this Act may prefer an appeal to the Appellate Tribunal for Electricity:

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Provided that any person appealing against the order of the adjudicating officer levying any penalty shall, while filing the appeal, deposit the amount of such penalty:

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Provided further that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, it may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty.

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(2) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made by the adjudicating officer or the Appropriate Commission is received by the aggrieved person and it shall be in such form, verified in such manner and be accompanied by such fee as may be prescribed:

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Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.

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(3) On receipt of an appeal under subsection (1), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.

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(4) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned adjudicating officer or the Appropriate Commission, as the case may be.

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(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within one hundred and eighty days from the date of receipt of the appeal:

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Provided that where any appeal could not be disposed of within the said period of one hundred and eighty days, the Appellate Tribunal shall record its reasons in writing for not disposing of the appeal within the said period.

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(6) The Appellate Tribunal may, for the purpose of examining the legality, propriety or correctness of any order made by the adjudicating officer or the Appropriate Commission under this Act, as the case may be, in relation to any proceeding, on its own motion or otherwise, call for the records of such proceedings and make such order in the case as it thinks fit.”

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Section 111 of the Electricity Act provides a complete mechanism for appeal against any order of the KERC to the APTEL. The petitioner has already availed such remedy by filing an Appeal 158/2024 before APTEL.

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This Court, in W.P.19663 of 2021, while considering the petitioner's earlier challenge to the KERC's order dated 14.09.2021, had categorically held that the petitioner has an efficacious alternative remedy before APTEL and accordingly dismissed the writ petition granting liberty to approach the said forum. The present Writ Petition is based upon identical issue and factual matrix. The grievance of the petitioner also pertains to the quantification of compensation, which are the mixed questions of law and facts, squarely within the appellate jurisdiction of APTEL. This Court finds that no exceptional circumstances are made out by the petitioner to invoke the extraordinary jurisdiction under Article 226. The reliance placed on Jaipur Vidyut Vitran Nigam Ltd. and S. N. Goyal are on the principle of functus officio is misplaced, as in those cases the authority had finally concluded the proceedings and later sought to reopen them without statutory sanction. In the present case, the KERC's order dated 17.06.2025 merely quantifies the

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continuing liability based on earlier findings, as the previous order directed compensation. As regards Batliboi Environmental Engineers and Unibros , while those judgments emphasize that damages must be quantified on contemporaneous data, the methodology adopted by KERC is derived from the Grid Control of India certified report, which the petitioner did not dispute in the earlier proceedings. Hence, those decisions placed reliance are distinguishable.

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Point No. (ii)

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The Apex Court in C A. No. 3458 of 2025 stayed the operation of APTEL judgment only to the extent of 75% of the monetary component, subject to payment of 25% of the amount with bank guarantee. The Apex Court order did not suspend or annul the findings of the KERC. Therefore, the KERC was not restrained from determining subsequent generation losses and the impugned order has been expressly made payment subject to the outcome of the appeal. There is no violation of the Apex Court's

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interim order. From the reasons, this Court finds that the

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Writ Petition is not maintainable, the petitioner has statutory alternative has efficacious alternative remedy under Section 111 of the Electricity Act, 2003, before the APTEL. The judgments relied by the petitioner’s counsel

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are distinguishable on facts and do not apply to the present case, as the petitioner has made out no exceptional ground and where no exceptional ground is made out, Writ Petition cannot be entertained as held in

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Harbanslal Sahnia and Radha Krishan Industries Limited stated supra. The interim order of the Apex Court dated 07.03.2025 does not curtail the jurisdiction of the KERC to adjudicate subsequent claims, it merely regulates the mode of payment pending appeal. The plea that the KERC has become functus officio is untenable. For the foregoing reasons the points framed for consideration are answered and accordingly this Court pass the following :

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ORDER

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(i) The Writ Petition stands dismissed as not maintainable.

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(ii) Without expressing any opinion on the merits or demerits of the rival contentions, the petitioner is at liberty to seek appropriate relief by filing appeal before the Appellate Tribunal for Electricity (APTEL) in accordance with law and if an appeal is filed, the APTEL shall consider and pass appropriate orders in accordance with law. (iii) All the rival contentions on merits are kept open to be adjudicated before the appropriate forum.

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Two weeks time is granted to file appeal before the

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APTEL from the date of receipt of the certified copy of this order.

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