Karnataka High Court
Graphite India Limited vs Karnataka Electricity Regulatory ... on 21 June, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NOs.12576/2018 AND
18316-18319/2018 C/w. WP Nos.16253/2018 AND
17509-17513/2018 (GM-KEB)
W.P. Nos.12576 & 18316-18319/2018
BETWEEN:
Graphite India Limited,
A Company registered under the
Provisions of the Companies Act,1956,
Having its Registered Office at 31,
Chowringhee Road,
KOLKATA-700 016
(Represented by its Vice President-Works)
... PETITIONER
(By Sri Shridhar Prabhu, Adv.)
AND:
1. Karnataka Electricity Regulatory Commission,
No.16, C-1, Millers Bed Area,
Vasanth Nagar,
BENGALURU-560 052
(Represented by its Chairperson)
2
2. Bangalore Electricity Supply Company Limited,
A Company registered under the
Provisions of Companies Act, 1956,
having its Registered Office at
K.R. Road,
Bengaluru-560 001
(Represented by its Managing Director)
3. Chamundeshwari Electricity Supply
Corporation Limited,
A Company registered under the
Provisions of Companies Act, 1956,
having its Registered Office at
No.29, Vijayanagara II Stage, Hinkal,
Mysuru-570 017
(Represented by its Managing Director)
4. Karnataka Power Transmission Corporation
Limited. Kaveri Bhavan, K.G. Road,
Bengaluru-560 009
5. State of Karnataka
Department of Energy,
Vikasa Soudha, Dr. AmbedkarVeedhi,
Bengaluru-560 001
(Represented by its Additional Chief Secretary)
6. Gulbarga Electricity Supply Corporation Limited,
A Company registered under the
Provisions of Companies Act, 1956,
having its Registered Office at
Station Main Road,
Kalaburagi-585 101
3
7. Hubli Electricity Supply Company Limited
A Company registered under the
Provisions of Companies Act, 1956,
having its Registered Office at
Navanagar, P.B. Road,
Hubballi-580 025
(Represented by its Managing Director)
8. Mangalore Electricity Supply Company Limited,
MESCOM Bhavana, Kavoor Cross Road, Bejai,
Mangaluru-575 004.
... RESPONDENTS
(By Sri T.S. Amar Kumar, Adv., for R1;
Sri H.V. Devaraju, Adv., for R3 and R4;
Sri S.S. Naganand Senior Counsel for
Sri Shahbaaz Hussain, Adv., for R2;
Smt. M. Jyothi, AGA for R5)
These writ petitions are filed under Article 226 of
the constitution of India, praying to call for records and
to quash the order dated 09.01.2018 passed by the 1st
respondent in OP Nos.90/2016, 104/2016, 47/2017
and 130/2017 produced at Annexure-A and etc..
W.P. No.16253/2018
BETWEEN:
Bhuruka Gases Limited,
A Company registered under the
Provisions of the Companies Act,1956,
Registered Office at Plot No.5A and 6,
Doddanekundi Industrial Area,
Whitefield Road,
4
Mahadevapura Post
Bengaluru-560 048
(Represented by its authorized Signatory)
... PETITIONER
(By Sri Shridhar Prabhu, Adv.)
AND:
1. Karnataka Electricity Regulatory Commission,
No.16, C-1, Millers Bed Area,
Vasanth Nagar,
BENGALURU-560 052
(Represented by its Chairperson)
2. Bangalore Electricity Supply Company Limited,
A Company registered under the
Provisions of Companies Act, 1956,
Having its Registered Office at
K.R. Road,
Bengaluru-560 001
(Represented by its Managing Director)
3. Hubli Electricity Supply Corporation Limited
A Company registered under the
Provisions of Companies Act, 1956,
Registered Office at Navanagar, P.B. Road,
Hubballi-580 025
(Represented by its Managing Director)
4. Karnataka Power Transmission Corporation
Limited.
Kaveri Bhavan, K.G. Road,
Bengaluru-560 009
5
5. State of Karnataka
Department of Energy,
Vikasa Soudha,
Dr. AmbedkarVeedhi,
Bengaluru-560 001
(Represented by its
Additional Chief Secretary)
... RESPONDENTS
(By Sri T.S. Amar Kumar, Adv., for R1;
Sri H.V. Devaraju, Adv., for R3 and R4;
Smt. M. Jyothi, AGA for R5
Sri S.S. Naganand Senior Counsel for
Sri Shahbaaz Hussain, Adv., for R2)
This writ petition is filed under Article 226 of the
constitution of India, praying to call for records and to
quash the order dated 09.01.2018 passed by the 1st
respondent in OP Nos.90/2016, 104/2016, 47/2017
and 130/2017 produced at Annexure-A and etc..
W.P. Nos.17509-17513/2018
BETWEEN:
Bhoruka Park Private Limited,
A Company registered under the
Provisions of the Companies Act,1956,
Registered Office at # 48,
Lavelle Road,
Bengaluru-560 001
(Represented by its authorized Signatory)
... PETITIONER
(By Sri Shridhar Prabhu, Adv.)
6
AND:
1. Karnataka Electricity Regulatory Commission,
No.16, C-1, Millers Bed Area,
Vasanth Nagar,
BENGALURU-560 052
(Represented by its Chairperson)
2. Bangalore Electricity Supply Company Limited,
A Company registered under the
Provisions of Companies Act, 1956,
having its Registered Office at
K.R. Road,
Bengaluru-560 001
(Represented by its Managing Director)
3. Hubli Electricity Supply Company Limited
A Company registered under the
Provisions of Companies Act, 1956,
having its Registered Office at
Navanagar, P.B. Road,
Hubballi-580 025
(Represented by its Managing Director)
4. Karnataka Power Transmission Corporation
Limited.
Kaveri Bhavan, K.G. Road,
Bengaluru-560 009
5. State of Karnataka
Department of Energy,
Vikasa Soudha,
Dr. AmbedkarVeedhi,
7
Bengaluru-560 001
(Represented by its
Additional Chief Secretary)
... RESPONDENTS
(By Sri T.S. Amar Kumar, Adv., for R1;
Sri H.V. Devaraju, Adv., for R3 and R4;
Sri S.S. Naganand Senior Counsel for
Sri Shahbaaz Hussain, Adv., for R2;
Smt. M. Jyothi, AGA for R5)
These writ petitions are filed under Article 226 and
227 of the constitution of India, praying to call for
records and to quash the order dated 09.01.2018
passed by the 1st respondent in OP Nos.90/2016,
104/2016, 47/2017 and 130/2017 produced at
Annexure-A and etc..
These petitions coming on for Orders, this day, the
Court made the following:
ORDER
These writ petitions are filed for writ in the nature of certiorari to quash the impugned order dated 09.01.2018 passed by the 1st respondent in OP Nos.90/2016, 100/2016, 104/2016, 47/2017 and 130/2017 as per Annexure-A and writ of mandamus directing the 5th respondent-State of Karnataka to issue 8 a direction under Section 108 of the Electricity Act, 2003 to provide the Banking arrangement to the petitioners on a Water Year basis with a grace period of one month as mandated under Clause 6 of the respective agreements.
2. It is the case of the petitioners that, State of Karnataka sanctioned proposal to the petitioner- Graphite India Limited for installation of a renewable energy based Mini Hydro Electric Project of 15 MW at Generation. The capacity of the project was increased to 18 MW. The petitioner-Bhuruka Gases was accorded proposal of State of Karnataka for installation of a renewable energy based Wind Energy Electric Power generating station of 18.4 MW at Masbinal Village, Basavana Bagewadi Taluk, Vijayapura. The petitioners have entered into the agreements, with the State Government on different dates and as per the clause 6 9 of the respective agreements accorded approval to the petitioners for wheeling and Banking of Electricity generated by them. In terms of the agreement, the Transmission line from power house to the Karnataka Electricity Board shall be got constructed by Karnataka Electricity Board at Company's cost and the Transmission line would be maintained by Karnataka Electricity Board. The Company agrees to pay wheeling and banking charges to Karnataka Electricity Board at 10% Energy Generation and as per the guidelines already laid, a separate agreement should be made by the Company with Karnataka Electricity Board in that regard. It is further case of the petitioners that in terms of the agreements entered into between the petitioners and the then KEB executed a Wheeling and Banking Agreement on 20.08.1996 and subsequently after period of ten years, Wheeling and Banking Agreement was renewed and signed as per 1st respondent KERC's 10 directions in OP No.22 of 2009 on 14.09.2010 between and petitioners and Chamundeshwari Electricity Supply Corporation Limited (CESC) and Karnataka Power Transmission Corporation Limited (KPTCL).
3. It is the further case of the petitioners that the energy generated at the plant shall be banked on Water year basis i.e., June to May of the Year as per KERC's order dated 01.07.2010 in case No.OP22/2009 and will be permitted to be carried forward from month to month within the same Water year. Banked energy will become zero at the end of the Water year. In other words, the Banking facility is provided on an annual basis and Banking charges are payable as specified in the 1st respondent's orders dated 09.06.2005 and 11.07.2008. It is further contended that the Wheeling and Banking Agreement executed by the petitioners with the Utilities is on 14.09.2010, as aforesaid and as per the said 11 agreement, the tariff structure/charges payable by the petitioner to the Utilities is governed by the orders dated 09.06.2005 and 11.07.2008 produced at Annexures-E and F, respectively. It is further contended that as per Article 13.6 of the Wheeling and Banking Agreement, the Wheeling and Banking Agreement shall not be amended, changed, altered or modified except by a written instrument duly executed by the authorized representative of both the parties. However, the 1st respondent shall be entitled to modify/alter the conditions of the contract at the instance of either of the parties after giving an opportunity of hearing to the parties.
4. It is further contended that the 1st respondent passed the tariff orders from time to time determining the tariff for retail supply, Wheeling and Banking and Cross Subsidy surcharge. The latest tariff order in this 12 regard was passed by the 1st respondent on 11.04.2017, effective from 01.04.2017 and the said order is valid for the entire Financial Year i.e. 01.04.2017 to 31.03.2018. It is further case of the petitioners that soon after the Tariff Order was passed on 11.04.2017, the 1st respondent-Commission issued notice on 28.06.2017 on its website in respect of OP Nos.90, 100, 104 of 2016 and OP No.47/2017 said to have been filed by BESCOM, HESCOM, MESCOM and GESCOM. In the notice, it was mentioned that the petitions are in respect of restriction of Banking facility to a period of three months from the date of generation.
5. It is further contended that the plain perusal of the petitions are uploaded on the website of the 1st respondent-Karnataka Electricity Regulatory Commission (Hereinafter referred to as 'Commission' for short), which gives raise to many ambiguities. However, 13 to the utter dismay of the petitioners, the 1st respondent passed an order dated 09.01.2018 referred supra. Adding to this confusion, the 1st respondent has issued an undated Discussion paper, wherein, it proposes once again alter the Wheeling and Banking charges. The comments have been invited from the stake holders. In that paper, there is no mention of the impugned order dated 09.01.2018, which has already altered the Wheeling and Banking rates for the petitioners as well other existing Wheeling and Banking agreement holders. The 1st respondent proceeded to pass the impugned order without issuing notice of opportunity being heard as contemplated. The impugned order is utter violation of principle of natural justice. Therefore, petitioners are before this Court for the relief sought for.
6. I have heard the learned counsel for the parties to the lis.
14
7. Sri Sridhar Prabhu, learned counsel appearing for the petitioners in all these writ petitions, vehemently contended that the impugned order passed by the 1st respondent modifying the Commission's order dated 04.07.2014, the banking period for the Non-REC route based on RE Projects, opting for wheeling, is reduced from the existing one year to six months is in utter violation of principles of natural justice. He further contended that by the impugned order, the 1st respondent virtually terminated the contract entered into between the parties. Though under Annexure-C, the Wheeling and Banking Agreement dated 14.09.2010 under Article 13.6 specifically provides that the said Agreement shall not be amended, changed, altered, or modified except by a written instrument duly executed by an authorized representatives of both parties, the KERC shall be entitled to modify/alter the conditions of 15 this contact at the instance of either of the parties, after giving an opportunity of hearing to both the parties. Therefore, he submits that the 1st respondent has not followed the procedure as contemplated under Article 13.6 of the Agreement dated 14.07.2014. On this ground the impugned order cannot be sustained.
8. He would further contend that before passing the impugned order, the 1st respondent-Commission has not followed the procedure as contemplated under the provisions of Sections 86.1(f) and 86(3) of the Electricity Act, 2003. Further, as per the provisions of Section 62(3) of Electricity Act, 2003, no tariff can be altered more frequently than one year when the tariff order dated 11.04.2017 was in vogue till 31.03.2018, the 1st respondent could not have effected the mid course revision. Hence, the impugned order is bad in law. The 1st respondent has no inherent power to effect the mid 16 course revision to its orders as held by the Hon'ble Supreme Court of India from time to time.
9. He further contended that, in pursuance of the impugned order, 1st respondent is now conducting public hearings in the matter of retail supply and Wheeling Tariff in its annual tariff exercise commencing from19.02.2018 would not absolve the 1st respondent to follow the procedure, as contemplated. Therefore, he sought to quash the impugned order passed by the 1st respondent without driving the petitioners for alternate remedy of appeal.
10. In support of his arguments, learned counsel for the petitioners has relied upon the decision of High Court of Madhya Pradesh (Jabalpur Bench) in the case of ReNew Clean Energy Private Limited Vs. M.P. Power Management Company Ltd. and Ors. reported 17 in 2017(3)JLJ384 to the effect that the preliminary objection raised by the learned Advocate General is that there is statutory alternate remedy available to the petitioners, therefore, such remedy requires to be availed. It would not find any merit in the objections raised by the Advocate General, since there is dispute of the question of fact raised in the present petitions. He would submit that the said judgment of Division Bench of Madhya Pradesh High Court was affirmed by the Hon'ble Supreme Court on 05.04.2018 in Civil Appeal No.3600 of 2018 reported in 2018(2) SCJ 506 (Supreme Court). He also relied upon the judgment of the Hon'ble Supreme Court in the case of State of Gujarat and Ors. Vs. Utility Users' Welfare Association and Ors., reported in 2018 (2) SCT 506 (SC) to the effect that any adjudicatory function of the State Commission, it is mandatory that there should be a person of law as a member of the Commission. 18 Admittedly, in the impugned order of the Commission, there is no legal expertise as a member, therefore the order cannot be sustained.
11. Per contra, Sri S.S. Naganand, learned Senior Counsel for Sri Shahbaaz Husain for 2nd respondent raised preliminary objection with regard to maintainability of the present writ petitions and strenuously contended that when the petitioners have got efficacious/alternative remedy of appeal before the Appellate Authority under the provisions of Section 111 of the Electricity Act, 2007, this Court cannot entertain these writ petitions.
12. He further contended that the agreement entered into between the parties dated 14.09.2010 as per Annexure-C in pursuance of the order passed by the Commission on 01.07.2010 at Annexure-D, the 19 Commission has followed the procedure as contemplated, before passing the impugned order. Regulation 5 of the KERC (Tariff) Regulations, 2000, stipulates (1) The Licensee shall arrange for publication of a Petition on ERC Filing or Tariff Filing in the following manner:
(a) The summary of the Petition, in such format as may be approved by the Commission, shall be published in two successive issues each of two daily news papers in English language and two daily news papers in Kannada language having a circulation in the area of operation of the Licensee. The advertisement should invite interested persons to file their objections and such documents are they seek to rely upon, supported by an Affidavit, in six copies, within 30 working days of the first advertisement and also indicate whether they would like to be heard in person by the Commission.20
13. He further contended that the said procedure has been followed by the Commission as per Annexure-H, before passing the impugned orders, by issuing Public Hearing Notice dated 28.06.2017 fixing the date of hearing on 12.07.2017 at 11.00 a.m. The notice given by the Commission for general public is not disputed by the petitioners. In fact, it is admitted at Para No.12 of the writ petition before this Court in the present writ petitions. Having knowing the procedure initiated by the Commission and knowing the date of hearing, the petitioners have not availed the opportunity as provided and filed the present writ petitions before this Court contending that the petitioners have not given an opportunity to appear before the Commission, cannot be accepted.
21
14. He further contended that, the provisions of Sub Section (2) of Section 42 of the Electricity Act, 2003, clearly states that the State Commission shall introduce open access in such phases and subject to such conditions, (including the cross subsidies, and other operational constraints) as may be specified within one year of the appointed date by it and in specifying the extent of open access in successive phases and in determining the charges for wheeling, it shall have due regard to all relevant factors including such cross subsidies, and other operational constraints. The learned Senior counsel for the 2nd respondent also invited the attention of the Court to the provisions of Section 86(1)(c) of the Electricity Act, 2003, regarding Functions of State Commission, which prescribed that facilitate intra-State transmission and wheeling of electricity.
22
15. He further contended that the arguments advanced by the learned counsel for the petitioners that the Government cannot be made as party before the Appellate Tribunal, cannot be accepted in view of the provisions under Section 12 of Karnataka Electricity Reform Act, 1999, General powers of the State Government. The said provision is saved under Section 185 (3) - in the Schedule 5 in the present Act i.e. Electricity Act 2003., therefore, even the Government can file an appeal, if they are aggrieved against the order passed by the Commission before the Appellate Authority. Hence, he sought for dismissal of the writ petitions.
16. In support of his contention, the learned Senior counsel relied upon the following judgments with regard to alternative remedy of appeal as under:-
(1) W.P. No.6033/2015 (Gem-KEB) -
23Chamundeshwari Electricity Supply Company Limited Vs. M/s. Saisudhir Energy (Chitradurga) Pvt., Limited;
(3) (2004) 4 SCC 268, U.P. State Bride Corporation Ltd. And Others Vs. U.P. Rajya Setu Nigams. Karamchari Sangh; and (4) (2003) 3 SCC 524, Sadhana Lodh Vs. National Insurance Co. Ltd. And Another.
17. Sri T.S. Amar Kumar, learned counsel for the 1st respondent while supporting the arguments advanced by the learned Senior Counsel for respondent No.2 sought to justify the impugned order and contended that the very writ petitions filed before this Court against the impugned order by the petitioners are not 24 maintainable, since the petitioners have alternative remedy of appeal as contemplated under Section 111 of the Electricity Act 2003. Therefore, he sought to dismiss the petitions.
18. Smt. Jyoti M. learned Government Advocate, while supporting the arguments advanced by the learned Senior counsel for the 2nd respondent contended that when the statute provides alternative remedy of appeal for consideration of the contentions urged, this Court cannot entertain these petitions. Therefore, she sought to dismiss the writ petitions.
19. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
25
20. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the present writ petitions is:-
"Whether the petitioners can maintain these present writ petitions against the impugned order passed by the 1st respondent- Commission without availing alternative remedy of the appeal under the provisions of Section 111 of the Electricity Act, 2003?"
21. It is an undisputed fact that the petitioners and respondent Nos.2, 3, 4, 6, 7 and 8 had entered into an agreement on different dates in pursuance of the order passed by the 1st respondent-Commission as per Annexure-D dated 01.07.2010. According to the petitioners, in terms of the agreement as per Annexure- C dated 14.09.2010 under Article 13.6 the agreement shall not be amended, changed, altered, or modified, except by a written instrument, duly executed by an 26 authorized representative of both Parties. However, KERC shall be entitled to modify/alter the conditions of this contract at the instance of either of the parties after giving an opportunity of hearing to all the parties. It is the specific case of the petitioners that the impugned order passed by the 1st respondent-Commission is without notice and without hearing these petitions. Therefore, they cannot be driven before the Appellate Authority for redressal of their grievance.
22. It is the specific case of the respondents that after the petitions were filed by the Bangalore Electricity Supply Company Limited and all other Electricity Supply Companies, the 1st respondent has issued notice to the General Public on 28.06.2017 (PUBLIC HEARING NOTICE) which clearly depicts that the electricity supply companies have filed the petitions seeking modification in the banking facility currently extended to wind 27 energy power projects and prayed to restrict the banking facility for a period of three months from the date of generation. The petitions are available on the Commission's website and also held a public hearing on 12.07.2017 at 11.30 a.m. to elicit the views of the public in the matter. The said procedure is followed by the 1st respondent-Commission in view of the KERC (Tariff) Regulations, 2000. Rule 5 of the said Regulations reads as under:
"5. Publication of the petition:
(1) The Licensee shall arrange for publication of a Petition on ERC Filing or Tariff Filing in the following manner:
(a) The summary of the Petition, in such format as may be approved by the Commission, shall be published in two successive issues each of two daily news papers in English language and two daily news papers in Kannada language having a circulation in the area of operation of the 28 Licensee. The advertisement should invite interested persons to file their objections and such documents as they seek to rely upon, supported by an Affidavit, in six copies, within 30 working days of the first advertisement and also indicate whether they would like to be heard in person by the Commission.
(b) The Licensee shall also specify in the advertisement that interested persons may inspect the copies of the petition at specified offices of the Licensee during normal working hours within 10 working days of the publication of the notice and also obtain the salient feature of the petition at such specified place on payment of cost of photocopying.
(c) The Licensee shall also mention in the advertisement that the full set of the application together with supporting materials would be made available to any interested person who may ask for it on payment of cost of photocopying."29
23. Though, a specific contention raised by the learned counsel for the petitioners that the 1st respondent-Commission, before passing the impugned order has not given an opportunity of being heard, at Para No.12 of the writ petitions it is stated that, "This being the case, soon after the Tariff Order issued on 11th April, 2017, the 1st Respondent issued a notice dated 28th June, 2017 on its website in respect of O.P. No.90, 100, 104/2016 and 47/2017 said to have been filed by BESCOM, HESCOM, MESCOM and GESCOM. In this public notice it was mentioned that the petitions are in respect of restriction of Banking facility to a period of 3 months from the date of generation. It was also notified that the petitions are available on the Website of the Commission". Having known the date of hearing and publication made by the 1st respondent, the petitioners have not made any efforts to appear before the 1st 30 respondent-Commission. Therefore, the contention of the learned counsel for the petitioners that there was no opportunity of hearing given to the parties by the Commission, cannot be accepted.
24. Insofar as other contentions raised by the learned counsel for the petitioners that by the impugned order the agreement entered into between the parties is terminated by the 1st respondent, cannot be accepted, as already stated supra, under Article 13.6 of the Wheeling and Banking Agreement dated 14.09.2010 entered into between the Karnataka Power Transmission Corporation Limited and other electricity Supply Companies with the petitioner-M/s. Graphite India Limited and others, shall not be amended, changed, altered, or modified except by a written instrument duly executed by an authorized representative of both Parties, but, the 1st respondent- 31 Commission shall be entitled to modify or alter the conditions of this contract at the instance of either of the parties, after giving an opportunity of hearing to both the parties. Admittedly, in the present case the Electricity Supply Companies have filed petitions before the 1st respondent to modify the conditions of the agreement. The 1st respondent after following the due procedure as contemplated under regulation 5 of the KERC (Tariff) Regulations, 2000, stated supra has proceeded to pass the impugned order. With regard to the violation of the provisions under Sections 86.3 and 86.4(f) of the Electricity Act, 2003, the petitioners can very well urge the said contentions before the Appellate Authority by filing a statutory appeal as contemplated under Section 111 of the Electricity Act, 2003.
25. All the contentions urged on merits in respect of determination of agreement by the Commission is also 32 the subject matter of the appeal and the Appellate Authority can adjudicate the same. Insofar as the contentions of the learned counsel for the petitioners that, the Government cannot be made as a party before the Appellate Authority, is without any basis. The learned counsel for the petitioners is unable to pointed out any of the provisions of the Electricity Act, 2003 or Regulation pertaining to the electricity that the Government cannot be made as party before the Appellate Authority. The word used under the provisions of Section 111 of the Electricity Act, 2003 is that any person aggrieved by the appropriate Commission unless act may prefer an appeal before the Appellate Tribunal or Electricity even if an adverse order is passed by the Commission against the State Government, the State Government can very well file an appeal before the Appellate Authority. It is for the Appellate Authority to decide whether the Government 33 can be impleaded as a party or not. That is not the purview of the writ petitions.
26. Insofar as the contentions raised by the learned counsel for the petitioners with regard to the judgment relied upon in the case of ReNew Clean Energy Private Limited Vs. M.P. Power Management Company Ltd. and Ors. reported in 2017 (3) JLJ384 made in Writ Petition No.12432/2017, where the 1st respondent has decided to terminate the Power Purchase Agreement executed on 10.11.2015 for the reason that petitioner has failed to complete the milestone of procuring land within the extended period of nine months after 210 days from the date of execution of the agreement. In these circumstances, the High Court of Madhya Pradesh (Jabalpur Bench) has held that there is no dispute of question of fact raised in the present writ petition. Therefore, the petitioners cannot be directed to avail the 34 statutory alternate remedy of appeal, though the learned counsel for the petitioners sought to justify the said judgment on the ground that the same was approved by the Hon'ble Supreme Court, subsequently. Admittedly, in the present case, the Electricity Companies have not terminated the agreement in terms of Article 13.6. The 1st respondent-Commission is authorized to exercise the power and has passed the order after following the Tariff Regulations stated supra. Therefore, the facts in the judgment relied upon by the learned counsel for the petitioners are entirely different from the facts of this case.
27. Insofar as 2nd judgment relied upon by the learned counsel for the petitioners in the case of State of Gujarat and Ors. Vs. Utility Users' Welfare Association and Ors. with regard to the impugned order passed by the Commission not headed or 35 accompanied by any judicial Member cannot be accepted, and no such ground is raised in the present petitions. In the absence of any ground raised, the contention of the petitioners cannot be accepted. Even assuming that the judgment is applicable, the Hon'ble Supreme Court has held that the judgment passed on 12.04.2018 is prospective as rightly pointed out by the learned counsel for the petitioners and admittedly the impugned order was passed on 09.01.2018. Therefore, the said judgment has no application to the facts and circumstance of the present case.
28. This Court while considering the provisions of Section 111 of the Electricity Act, 2003 in the case of Chamundeshwari Electricity Supply Company Limited made in writ petition No.6033/2015 on 18.08.2015, has specifically held at Para Nos.8 and 9 as under:
36
"8. Section-111 of the Electricity Act'2003, (hereinafter referred to as 'Act') contemplates an appeal to the appellate authority wherein a person is aggrieved by an order made by an Adjudicating Officer or an order made by the Appropriate Commission under the Act. The impugned order herein is an order passed by the Electricity Regulatory Commission. Therefore, the said order is appealable under Section-111 of the Act. Therefore, the petitioner would have to avail the remedy of filing an appeal before the Tribunal.
9. His further contention that the Tribunal is not functional, is countered by the cause-list produced by the learned counsel for the respondent in terms of Annexure-R27. The same is for 13.08.2015 for various matters being listed thereon. To this, it is contended by the learned counsel appearing for the petitioner that the Members do not sit on regular basis. That Bench-I which is concerned with the present jurisdiction of the 37 matters is not sitting. I' am of the considered view that the said contention cannot be accepted. The ground on which the interim order was granted and extended was because even though the Appellate Tribunal was constituted as per the Act, there were no Members. It is undisputed that Members have been appointed. The only ground urged is that the Members do not sit regularly. I'am of the considered view that such a contention cannot be accepted. Once a Tribunal is constituted and Members have been appointed, whether the Members sit on a particular day or not is inconsequential. The remedy available is to file an appeal and obtain appropriate orders"
29. This Court while considering the provisions of Sections 111, 112 and 113 of the Electricity Act, 2003 in the case of Karnataka Power Transmission Corporation Limited vs. R.K. Powergen Private Limited reported in 2005 Karnataka 5468, has held 38 that "Whenever there is an alternative remedy provided under a special enactment a petition under Article 226 cannot be entertained". Further, in the said decision at Para No.14 it is held as under:
"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 vs CESC LTD., (Supra) has observed as follows:
"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 39 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 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.40
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."
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 13.05.2005. 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 41 grievance of the petitioner should be decided by the Appellate Tribunal consisting of experts."
30. The Hon'ble Supreme Court while considering the provisions of Article 226 of Constitution of India in the case of U.P. State Bride Corporation Ltd. and Others Vs. U.P. Rajya Setu Nigams. Karamchari Sangh reported in (2004) 4 SCC 268, at Para No.12 has held as under:
"12. Although these observations were made in the context of the jurisdiction of the civil court to entertain the proceedings relating to an industrial dispute and may not be read as a limitation on the Court's powers under Article 226, nevertheless it would need a very strong case indeed for the High Court to deviate from the principle that where a specific remedy is given by the statute, the person who insists upon such remedy can avail of the process as provided in that statute and in no other manner."42
31. Further, the Hon'ble Supreme Court in the case of Sadhana Lodh Vs. National Insurance Co. Ltd. And Another reported in (2003) 3 SCC 524 - while considering the provisions of Section 16 of the MV Act 1998 at Para Nos.8, has held as under:
"8. For the aforesaid reasons, we are of the view that since the insurer has a remedy by filing an appeal before the High Court, the High Court ought not to have entertained the petition under Articles 226/227 of the Constitution and for that reason, the judgment and order under challenge deserves to be set aside. We, accordingly, set aside the judgment and order under appeal. The appeal is allowed. There shall be no order as to costs. However, it would be open to the insurer to file an appeal if it is permissible under the law."43
32. The Hon'ble Supreme Court while exercising the powers under Article 226 of the Constitution of India when existence of alternative statute remedy is available in the case of AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE AND ANOTHER VERSUS MATHEW K.C., reported in 2018(3) SCC page 85 at Para Nos.9, 10, 13 has held as under:
"9. Even prior to the SARFAESI Act, considering the alternate remedy available under the DRT Act it was held in Punjab National Bank vs. O.C. Krishnan that: (SCC p.570, para 6 :-
"6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either 44 by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."
10. In Satyawati Tandon (supra), the High Court had restrained further proceedings under Section 13(4)of the Act. Upon a detailed consideration of the statutory 45 scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding :-
"43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the 46 High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.
55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious 47 adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection."
13. In Ikbal, it was observed that the action of the Bank under Section 13(4) of the 'SARFAESI Act' available to challenge by the aggrieved under Section 17 was an efficacious remedy and the institution directly under Article 226 was not sustainable, relying upon Satyawati Tandon, observing :
"27. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article 226. On misplaced 48 considerations, statutory procedures cannot be allowed to be circumvented.
28.......In our view, there was no justification whatsoever for the learned Single Judge to allow the borrower to bypass the efficacious remedy provided to him under Section 17 and invoke the extraordinary jurisdiction in his favour when he had disentitled himself for such relief by his conduct. The Single Judge was clearly in error in invoking his extraordinary jurisdiction under Article 226 in light of the peculiar facts indicated above. The Division Bench also erred in affirming the erroneous order of the Single Judge."
34. For the reasons stated supra the point raised in these petitions has to be held in the negative holding that the petitioners cannot maintain the writ petitions, in view of the alternative and efficacious remedy of 49 appeal provided under the provisions of Section 111 of the Karnataka Electricity Act, 2003.
35. In view of the aforesaid reasons, the writ petitions are dismissed as not maintainable with liberty to the petitioners to avail an alternative remedy of preferring an appeal as contemplated under the provisions of Section 111 of the Karnataka Electricity Act within three weeks from the date of the receipt of a copy of this order.
36. All the contentions raised by the parties are left open to be urged before the Appellate Authority.
Ordered accordingly.
Learned counsel for the petitioner submits that in view of the intervening vacation from 01.06.2018 to 30.06.2018, the interim order granted earlier shall be continued, till preferring an appeal.
50
The said submission is not disputed by the learned counsel for the respondents.
In view of the above, the interim order shall enure to the benefit of the petitioners for a period of three weeks from the date of receipt of a copy of this order.
Sd/-
JUDGE SBS*