Karnataka High Court
Fortune Five Hydel Projects Private ... vs Karnataka Electricity Regulatory ... on 21 June, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:21417
WP No. 12666 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 12666 OF 2023 (GM-KEB)
BETWEEN:
FORTUNE FIVE HYDEL PROJECTS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS ADMINISTRATIVE OFFICE AT
NO. 701-702, PRESTIGE MERIDIAN - II.
NO. 30, M.G. ROAD,
BENGALURU - 560 001.
REPRESENTED BY ITS
AUTHORIZED SIGNATORY/GENERAL MANAGER
MR.SRI HARI BHAGAVAN. K
...PETITIONER
(BY SRI. RAJESHWARA P N.,ADVOCATE)
AND:
Digitally
signed by 1. KARNATAKA ELECTRICITY REGULATORY COMMISSION
VANDANA S 16/C-1, MILLER TANK BED AREA
Location:
High Court VASANTHNAGAR,
of BENGALURU - 560 052,
Karnataka
REPRESENTED BY ITS SECRETARY.
2. BANGALORE ELECTRICITY
SUPPLY COMPANY LIMITED,
HAVING ITS CORPORATE OFFICE AT K.R. CIRCLE,
BENGALURU - 560 001,
REPRESENTED BY ITS MANAGING DIRECTOR.
3. POWER COMPANY OF KARNATAKA LIMITED
5TH FLOOR, KPTCL BUILDING,
CAUVERY BHAVAN,
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NC: 2023:KHC:21417
WP No. 12666 of 2023
BENGALURU - 560 009,
REPRESENTED BY ITS DIRECTOR
...RESPONDENTS
(BY SRI. B. N. PRAKASH., ADVOCATE FOR R1;
SRI. SHAHABAAZ HUSSAIN., ADVOCATE FOR R2 & R3)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING THE TARIFF ORDER
2023 DATED 12/05/2023 ISSUED BY R1 AT ANNEXURE-A IN SO FAR AS
LEVYING OF ADDL SURCHARGE AT RS 1.48 PER UNIT IS CONCERNED.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
In this petition, petitioner has sought for the following reliefs:-
(i) Issue a writ of certiorari quashing the Tariff Order 2023 dated 12.05.2023 issued by Respondent No.1 at Annexure-A in so far as levying of additional surcharge at Rs.1.48 per unit is concerned; and
(ii) Declare that proviso to Regulation 11(v) of Karnataka Electricity Regulatory Commission (Terms and Conditions for green Energy Open Access) Regulations, 2022, published in the Karnataka Gazette dated 19.01.2023, at Annexure-E is null and void to the extent of contravention as the same is not in consonance with proviso to Rule 9(2) of the Electricity (Promoting Renewable Energy through Green Energy Open Access) Rules, 2022 dated 06.06.2022 at Annexure-C;
(iii) Pass such other order/s as this Hon'ble deems fit to pass under the facts and circumstances of the case, in the interest of justice and equity.
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NC: 2023:KHC:21417 WP No. 12666 of 2023
2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record.
3. The material on record discloses that pursuant to the proceedings under the Electricity Act, 2003 before the 1st respondent - KERC, public hearing was conducted on 14.02.2023 and the matter was reserved for orders. Subsequently, on 16.03.2023, the PCKL - 3rd respondent submitted data vide letter dated 16.03.2023 to the KERC. It is the grievance of the petitioner that after conclusion of hearing on 14.03.2023 and when the matter stood posted / reserved for orders, the 3rd respondent-PCKL submitted the data on 16.03.2023 without intimating or furnishing a copy to the petitioner and the KERC proceeded to pass the impugned order without providing an opportunity to the petitioner to file his objections and / or and make submissions as regards the said data and without furnishing the said data to the petitioner or hearing him, thereby violating the principles of natural justice and consequently, the impugned order passed by the KERC deserves to be set aside.
4. Per contra, learned counsel for the KERC has filed a memo dated 14.06.2023, which reads as under:- -4-
NC: 2023:KHC:21417 WP No. 12666 of 2023 "1. It is respectfully submitting that the petitioners have filed this writ petition for the relief of writ of Certiorari or any other writ, order or direction for quashing the Tariff Order 2023 dated: 12.05.2023 in so far as it levis additional surcharge of Rs. 1.48 per unit applicable to all open access transactions and for other reliefs. The petitioners have alleged that the Respondent-commission has fixed the additional surcharge based on the data received by it from 3rd Respondent-PCKL on 16.03.2023, over a month after the public hearing without furnishing the said data to the petitioners and other generating Companies or to the public which is in gross violation of principles of natural justice and the commission has fixed the additional surcharge. On these grounds, petitioners have prayed that this Hon'ble court to set aside the specific portion or Tariff Order, which fixes additional surcharge.
2. It is respectfully prayed that this Hon'ble court be pleased to take the memo on record and remand this petition to the respondent commission to hear the petitioners on the specific issue of additional surcharge approved in the Tariff Order, 2023. The Commission will decide the issue raised/questioned before this Hon'ble court after providing and opportunity to the petitioners and other commonly affected parties who are coming under the jurisdictions of ESCOMs. The Hon'ble Court may be pleased to pass an order that the petitioners and other -5- NC: 2023:KHC:21417 WP No. 12666 of 2023 commonly affected parties are liable to pay the additional surcharge retrospectively for financial year 2023-24 in the terms of the orders to be passed by this Respondent- Commission after remand of this petition in the interest of justice and equity."
5. In view of the aforesaid facts and circumstances and the material on record, which indicates that the impugned order has been passed in violative of principles of natural justice coupled with the aforesaid memo filed on behalf of the KERC, without expressing any opinion on the merits / demerits of the rival contentions, I deem it just and appropriate to set aside the impugned order and remit the matter back to the KERC insofar as it relates to levying of additional surcharge of Rs.1.48 per unit applicable to all open access transactions for reconsideration afresh in accordance with law after providing / furnishing the data submitted by the PCKL to the petitioner and others and also provide them an opportunity and hearing in this regard.
6. Under these circumstances, though the 2nd respondent- BESCOM has raised bills applying the rates as per the impugned order, in view of the present order, whereby the impugned order is set aside, I direct the petitioner to continue to pay the additional -6- NC: 2023:KHC:21417 WP No. 12666 of 2023 surcharge at the rate of 35 paise till the 1st respondent-KERC passes appropriate orders in accordance with law. It is needless to state that the said payment by the petitioner at 35 paise per unit would be without prejudice to the rights and contentions of both sides and all rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.
6.1 Insofar as prayer No.(ii) is concerned, in view of the present order, liberty is reserved in favour of the petitioner to seek appropriate reliefs in accordance with law in relation to prayer No.(ii) including filing a fresh petition before this Court.
7. Subject to the aforesaid observations and directions, petition stands disposed of.
Sd/-
JUDGE Srl.