Sri. Balasimha Rao Vs the Karnataka Renewable Energy Development Limited (Kredl)

THE KARNATAKA RENEWABLE Digitally signed ENERGY DEVELOPMENT LIMITED (KREDL) by GURURAJ D NO.39, SHANTHI GRUHA, Location: High BHARATH SCOUTS AND Court of GUIDES BUILDING, Karnataka PALACE ROAD, BENGALURU - 560 001, REPRESENTED BY ITS DIRECTOR.

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BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM) OFFICE AT K.R. CIRCLE, BENGALURU - 560 001, REPRESENTED BY ITS MANAGING DIRECTOR.

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NC: 2025:KHC:41211 WP No. 7473 of 2023

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HC-KAR

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KARNATAKA ELECTRICITY REGULATORY COMMISSION (KERC) NO.16, C-1, MILLER TANKBED AREA, VASANTH NAGAR, BENGALURU - 560 052, REPRESENTED BY ITS SECRETARY.

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…RESPONDENTS

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[BY SRI SUMANTH KASHYAP, ADVOCATE FOR R1; SRI SHAHBAAZ HUSSAIN, ADVOCATE FOR R2 (PH); SRI B.N. PRAKASH, ADVOCATE FOR R3]

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &

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227 OF THE CONSTITUTION OF INDIA, PRAYING TO ORDER BY SET ASIDE THE IMPUGNED ORDER DATED 28.07.2016 IN O.P.NO.42/2015 PASSED BY THE 3^RD RESPONDENT BY ALLOWING THE PETITION IN O.P.NO.42/2015 AS PER ANNEXURE-K.

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THIS PETITION IS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 10.09.2025, THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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NC: 2025:KHC:41211 WP No. 7473 of 2023

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HC-KAR

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CAV ORDER

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Challenging order dated 28.07.2016 passed by respondent no.3 in OP no.42/2015 at Annexure-K and seeking for allowing said petition, this writ petition is filed.

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Sri Ganapathi Bhat, learned counsel for petitioner submitted, in terms of Karnataka Solar Policy 2014-21, Government of Karnataka (‘ GoK ’, for short) issued notification dated 26.08.2014 inviting applications from eligible land owners for establishment of upto 3 Mega Watt (‘ MW ’, for short) Solar Power Plants by entering into Power Purchase Agreements (‘ PPA s’, for short) with concerned Electricity Supply Companies (‘ ESCOMS ’, for short). For implementation, nodal agency was respondent no.1- KREDL .

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Petitioner - owner of 24 Acres 11 guntas of land in Sy.no.296/3 of Kamanadurga village, Nagalamadike Hobli, Pavgada Taluk, Tumkur, filed application online on 09.10.2014. Same was accepted for 3 MW project and Letter of Allotment (‘ LoA ’, for short) dated 28.08.2015 as per Annexure-B was issued. But as per Delivery Slip and Delivery Register Extract produced as Annexures-C and C1, LoA was received only at

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NC: 2025:KHC:41211 WP No. 7473 of 2023

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4:30 pm on 31.08.2015, rendering it impossible for petitioner

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to submit documents by 31.08.2015. However, petitioner submitted them on 01.09.2015, but learnt that 31.08.2015 was cut-off date for PPA tariff of Rs.8.40/- per unit. As reason for not submitting documents by 31.08.2015 was clearly not attributable to petitioner, he filed representation with respondent no.2. But was informed that respondents lacked power to review tariff. Therefore, petitioner filed representations with Additional Chief Secretary, GoK, on 05.10.2015 and 14.10.2015 produced as Annexures-E and F. Same were forwarded to Principal Secretary, Department of Energy, GoK, who by letter dated 17.10.2015 directed respondent no.3-‘ KERC ’ to consider granting same tariff as granted to other beneficiaries. Therefore, on 21.11.2015, petitioner approached KERC under Section 86 (1) (b) of Electricity Act, 2003, (‘ Act ’, for short) and filed OP no.42/2015 seeking direction for execution of PPA with petitioner at Rs.8.40/- per unit tariff.

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It was submitted during pendency of said petition, KERC executed PPA with petitioner on 28.01.2016 fixing tariff @ Rs.6.51/- per unit as per Annexure-J. It was submitted, same

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NC: 2025:KHC:41211 WP No. 7473 of 2023

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was received under protest. Thereafter, under impugned order at Annexure-K dated 28.07.2016, KERC rejected OP no.42/2015, leading to this petition.

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It was submitted, respondents had executed PPAs with tariff @ Rs.8.40/- per unit, in favour of all allottees prior to 31.08.2015, but discriminated petitioner with lower tariff only on ground that he had not submitted necessary prior to cut-off date. It was submitted, failure was not due to inaction or default attributable to petitioner, but due to delayed receipt of LoA. Same was not duly appreciated by KERC. But on 21.03.2023, KERC passed an order in OP no.63/2017 ( M/s Red

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Earth Green Energy Pvt. Ltd. v. KPTCL ) produced as Annexure-L, holding that all Solar Power Generators on or after 01.04.2013 till 31.01.2018 would be entitled for tariff @ Rs.8.40/- per unit.

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It was further submitted, under similar circumstances another Solar Power Generator had preferred appeal before Appellate Tribunal for Electricity (‘ APTEL ’, for short) in Appeal no.207/2017 ( Murrali M Baaldev v. KREDL & Ors. ), same was allowed on 03.07.2024 holding appellant

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therein entitled for tariff @ Rs.8.40/- per unit. It was submitted even in said case, LoA was received on 31.08.2015 providing no time for execution of PPA before 01.09.2015. It was submitted said order was passed considering that an instrumentality of State could not compel a person to do what was clearly impossible. It was further submitted, challenge against order of APTEL was dismissed by Hon'ble Supreme Court in Civil Appeal (Dairy) no.36123/2022. Thus, same would apply to petitioner’s case. It was submitted due to prevalence of Covid-19 Pandemic, there was delay in filing of writ petition and prayed for allowing writ petition.

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On other hand, Sri Samanth Kashyap, learned counsel for respondent no.1; Sri Shahbaaz Hussain, learned counsel for respondent no.2 and Sri BN Prakash, learned counsel for respondent no.3 opposed writ petition. At outset, learned counsel for respondent no.2 relied on decision of Hon'ble Supreme Court in Assistant Commissioner (CT) LTU, Kakinada and Ors. v. Glaxo Smith Kline Consumer Health Care Ltd. , reported in 2020 (19) SCC 681 , to contend that order impugned herein was appealable before APTEL under Section 111 of Act and therefore, writ petition was filed without

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exhausting efficacious alternative remedy, and sought for its dismissal.

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It was submitted, writ petition was also liable to be dismissed on ground of delay and laches as writ petition was filed on 26.03.2023 challenging an order passed on 28.07.2016 after more than 6½ years. It was submitted, commissioning of petitioner’s solar power plant was only on 07.08.2017. Referring to para-3.32 of Statement of Objections filed, it was submitted, tariff availed to solar power generators was proportionate to capital costs incurred by generators. During year 2017, tariff applicable was Rs.4.36/- per unit only. It was further submitted, order passed by APTEL in Murrali ’s case (supra) was in specific facts and circumstances and applicant therein had approached KREDL immediately after finding that his name was not included in list of allottees, petitioner therein had submitted representation and there was delay in consideration of his representation. Since, petitioner had not submitted any representation, facts of present case were clearly distinguishable.

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It was submitted, petitioner commissioned its plant on 07.08.2017 within control period as per order dated 30.07.2015. It was submitted, KREDL had exclusive jurisdiction to determine tariff under PPAs. Though, tariff of Rs.8.40/- per unit was prescribed for all solar power projects with which PPAs were executed from 01.04.2013 to 31.03.2018, same was taking note of then prevailing capital costs which reduced substantially over period of time as follows:

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Date	Tariff	Capital Cost in Lakhs per MW
10.10.2013	8.40	830
30.07.2015	6.51	600
12.04.2017	4.36	440
18.05.2018	3.05	350
01.08.2019	3.08	340

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It was submitted, KREDL had modified its order

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dated 10.10.2013 and decided that tariff determined in order dated 30.07.2017 would be applicable to all new grid connected MW scale solar power plants entering into PPAs on or after 01.09.2015 to 30.03.2018. It was submitted, since PPA with petitioner was executed on 26.09.2015, petitioner was granted

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tariff @ Rs.6.51/- per unit and taking note of reduction of capital costs for setting up of power plant by then. Therefore,

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order impugned did not call for interference and sought for dismissal of petition.

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Heard, learned counsel for parties and perused writ

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petition.

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This writ petition is by Solar Power Generator being aggrieved by dismissal of his petition before KERC. As rightly pointed out, writ petition is filed more than 6½ years after passing of order. Moreover, order impugned was passed by KERC under Section 86 (1) (f) of Act and would be appealable under Section 111 thereof before APTEL.

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Only explanation in writ petition for delay and laches and alternative remedy is denial of alternative remedy and prevalence of Covid-19 Pandemic. Though, it is held that non-exhaustion of efficacious alternative remedy would not be an absolute bar, in L.K. Verma v. HMT Ltd. , reported in (2006) 2 SCC 269 , it held :

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“20. The High Court in exercise of its jurisdiction under Article 226 of the Constitution, in a given case although may not entertain a writ petition inter alia on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. Despite existence of an alternative remedy, a writ court may exercise its discretionary

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jurisdiction of judicial review inter alia in cases where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right or if there has been a violation of a principle of natural justice or where vires of the Act is in question. In the aforementioned circumstances, the alternative remedy has been held not to operate as a bar. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1], Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd. [(2005) 8 SCC 242] and State of H.P. v. Gujarat Ambuja Cement Ltd. [(2005) 6 SCC 499])”

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Thus, writ petition could be entertained, in cases where Tribunal/authority passing any order lacked inherent jurisdiction, where it is for enforcement of fundamental right and in case of violation of principles of natural justice or even where vires of any provision of law were questioned. Present writ petition does not involve challenge of any provision of law or about inherent lack of jurisdiction of any authority passing an order. However, there is allegation of discrimination between similarly situated persons insofar as fixation of tariff.

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Hon'ble Supreme Court in Punjab Small-Scale Industries & Export Corpn. Ltd. v. Jhujhar Singh , reported in (2008) 17 SCC 668, has held, when respondents urge contention of delay and laches against a writ petition, High Court was bound to consider same. Admittedly, petitioner has

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approached this Court 6½ years after passage of impugned order, with sole explanation about prevalence of Covid-19 Pande, 2020 till February 2022. Cause of action for petitioner accrued on 28.07.2016 with passing of impugned order by KERC. But, writ petition was filed only on 28.03.2023. Explanation offered would not cover entire period of delay.

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Further, in case of Jaipur Vidyut Vitran Nigam

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Ltd. v. MB Power (M.P.) Ltd. , reported in (2024) 8 SCC 513 , Hon'ble Supreme Court has held writ petition suffering from delay and laches as well as filed without exhausting alternative remedy ought not to be entertained. For above twin reasons, this Court declines to entertain this writ petition.

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Consequently, writ petition is dismissed .

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Sd/(RAVI V HOSMANI) JUDGE

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GRD List No.: 1 Sl No.: 50

Sri. Balasimha Rao v. the Karnataka Renewable Energy Development Limited (Kredl)

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Sri. Balasimha Rao v. the Karnataka Renewable Energy Development Limited (Kredl)

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