Karnataka High Court
Mr.K Ramesh And Ors vs The State Of Karnataka & Ors on 21 March, 2018
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
W.P.Nos.208148-152/2017
& 208179-180/2017 (GM-KEB)
Between:
1. Mr. K Ramesh
S/o Mr. Koteshwara Rao,
Aged about 47 years,
Residing at Survey No.43,
Maldinni Village,
Sindhanur Taluk,
Raichur District - 584 128.
2. Ms. Jansi Lakshmi
W/o K. Ramesh,
Aged about 45 years,
Residing at Survey No.43/3
Maldinni Village,
Sindhanur Taluk,
Raichur District - 584 128.
3. Mr. J.V. Sanath Kumar
S/o Lakshmipathi Rao,
Aged about 53 years,
Residing at Survey No.26/1,
Maldinni Village,
Sindhanur Taluk,
Raichur District - 584 128.
4. Mr. U Rambabu
2
S/o Mr. Narayana Murthy,
Aged about 68 years,
Residing at Survey No.50,
Dhadesugur, Sindhanur Taluk,
Raichur District - 584 128.
5. Smt. Trinada Kumari
W/o Mr. U Rambabu
Aged about 58 years,
Residing at Survey No.50,
Dhadesugur,
Sindhanur Taluk,
Raichur District - 584 128.
... Petitioners
(By Sri Ravi B. Patil, Advocate)
And:
1. The State of Karnataka,
Represented by it Principal Secretary,
Government of Karnataka,
Vidhanasoudha,
Bengaluru - 560 001.
2. The Additional Chief Secretary,
Energy Department,
Vikasasoudha, Bengaluru - 560 001.
3. Gulbarga Electricity Company,
Having its corporate office at
Station Road, Kalaburagi - 585 102
Represented by its Managing Director.
4. The Executive Engineer (E),
O & M Division,
GESCOM, Sindhanur Taluk,
Raichur District - 584 128.
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5. The Assistant Executive Engineer (Elect),
O & M Sub-Division,
GESCOM, Sindhanur Taluk,
Raichur District - 584 128.
... Respondents
(By Sri K.M. Ghate, AGA for R1 & R2;
Sri Ravindra Reddy, Advocate for R3 to R5)
These Writ Petitions are filed under Articles 226 &
227 of the Constitution of India, praying to issue a writ,
order/order's declaring that, the PPAs dated 30.01.2016
(3 Nos.) 29.02.2016 (2 Nos.) 22.03.2016 (2 Nos.) at
Annexure-K, K1 to K6 are subsisting and the petitioners
are entitled to complete the Solar Power Plants within a
period of six months from the date of disposal of the writ
petition and issue a writ, orders/order's directing the
respondents to abide by the terms of regarding the
purchase of the power in terms of the PPAs at
Annexures-K, K1 to K6; issue a writ, order/order's
declaring that, the tariff fixed under the Power Purchase
Agreements (PPAs) dated 30.01.2016 (3 Nos.),
29.02.2016 (2 Nos.), 22.03.2016 (2 Nos.) at Annexures-K,
K1 to K6 are applicable to the petitioners, if they complete
the project within the time granted by this Hon'ble Court
and to pass such other order.
These petitions coming on for Orders this day, the
Court made the following:-
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ORDER
Petitioners are said to be the owners of buildings constructed on land bearing Sy.Nos.43/5, 42/6, 44/3, 26/1 and 50 of Maladinni (D) Village, Sindanoor Taluk, Raichur District.
2. According to them they have entered into agreements with respondent No.3 on 30.01.2016, 29.02.2016 and 22.03.2016 which are in all seven agreements referred to at Annexures-K, K1 to K6 to these writ petitions. Under the aforesaid agreements the petitioners had agreed to install Solar Rooftop Photo Voltaic (SRTPV) Generation System which are to be basically utilized by the petitioners for themselves and also to sell the excess power to the third respondent - Electricity Supply Company for a price which was agreed in said agreements.
3. Grievance of the petitioners is that aforesaid seven agreements which were entered into between the petitioners and third respondent was in force for a period 5 of one year, whereunder petitioners are entitled to complete installation of Solar Power Plant within said one year from the respective date of the agreements. It is stated that when petitioners were continuing said construction on their property for the purpose of erecting Solar Power Generator Installations, aforesaid agreements were cancelled by third respondent by its communication dated 08.09.2016, which was subject matter in a batch of writ petitions before this Court in W.P.No.51001/2016 (GM-RES) connected with several other writ petitions.
4. In the aforesaid batch of writ petitions, petitions filed by the petitioners herein are in W.P.Nos.53864 to 53875/2016. It is stated that the entire batch of writ petitions filed by petitioners and other similarly placed were disposed of by order dated 16.03.2017, wherein this Court observed as under :-
"7. To enable such consideration to be made in a time frame, it is directed that the show cause notices if any, to be issued by the respondents shall be issued to the petitioners herein within a period of 6 two weeks from the date of receipt of a copy of this order. The petitioners on receipt of show cause notices shall file their respective replies within two weeks from the date of receipt of such notices. The respondents shall thereupon complete the process of consideration of the reply and the orders be passed in that regard within a period of three weeks thereafter.
8. It is further made clear that though the order of termination is set aside at this point in time to enable the principles of natural justice to be complied, the same shall not give a right to the petitioners to commence the work so as to complete the project in the meanwhile. In that circumstances, if the petitioners undertake any further work relating to the project for its completion from this date onwards till the process of providing the opportunity is completed and whether such progress should be taken into consideration or not is a matter left open to be considered by the respondents, but the petitioners shall not claim any equities in that regard unless the respondents choose to consider and accept the same to treat the project as completed.
9. Further while considering the explanation of the petitioners, if any need arises for altering the terms of the agreement, that is also a matter left open to the respondents to take note of the same and take a decision in accordance with law. After the decision is taken by the respondents, if the petitioners are still aggrieved by the action of the 7 respondents, liberty is left to them to avail their remedies in accordance with law."
5. Pursuant to aforesaid order, it is stated that a show cause notice was issued to the petitioners on 17.06.2017 which are at Annexure-T series to these writ petitions. The petitioners would state that explanation was furnished by them to said show cause notice which is seen along with the show cause notice produced in Annexure-T series. According to them, though explanation was given by petitioners explaining the reason for non completion of building and commencement of production of power vide agreements entered into between them from 30.01.2016 to 22.03.2016, said explanation was not accepted and no order was passed pursuant to said show cause notice given on 17.06.2017, resulting in the petitioners herein approaching this Court by filing the present writ petitions.
6. In these writ petitions notices were duly served on respondents No.3 to 5 namely the Gulbarga Electricity Company and its Executive Engineer (E) and Assistant Executive Engineer (Elect.), of Sindhanur Taluk, Raichur 8 District, who are represented in these proceedings through learned counsel Sri Ravindra Reddy and he would bring to the notice of this Court that the seven agreements which were entered into between the petitioners and third respondent are already cancelled on 12.12.2017 vide Annexure-X.
7. It is seen that the petitioners herein have secured copy of said order of cancellation of agreement which are now produced along with an application seeking amendment and the said order of cancellation is at Annexures-X1 to X8. When the said application for amendment came up for consideration these writ petitions are taken up for disposal.
8. Admittedly, the petitioners are pursuing their alleged right which is created in their favour under various agreements entered into between 30.01.2016 and 22.03.2016 for production of electricity by installing Solar Electricity Generating Systems over the rooftop of the buildings belonging to them and to sell the power which is 9 generated in the aforesaid units pursuant to the agreements referred to at Annexure-K, K1 to K6, which agreements are admittedly cancelled by the fourth respondent, who is Executive Engineer of third respondent. The reasons assigned for cancellation of the agreements is seen at Para No.4 of the cancellation order dated 12.02.2017 which reads as under :
"4. Your have now claimed that you intended to set up the proposed capacity of 500 KWp Solar plant in open land. However considering your intention of construction in open land, the assessed load of this intended building and the rooftop space that would be available would not be in commensurate to the SRTPV capacity to be set up. In Solar Policy 2014-21 vide ref.1 above, it is stipulated that all individuals' residential/ commercial/ institutional/Govt. building owners, Industrial units are eligible to set up solar plant i.e., grid connected, rooftop projects within prescribed limit. Further under Segment 2: Grid connected solar rooftop projects and metering of the Policy, it is stipulated that the concept of SRTPV was combination of captive consumption and exchange of power with utility and that the project site/installation maybe decided based on the total energy requirement at the premises and the usable area available for installation of rooftop solar 10 PV system. On the face of it appears that the proposed Solar plant is being set up by you to sell maximum or whole of the quantum of the power generated at the tariff of Rs.9.56 to GESCOM as per the KERC (Determination of Tariff for grid interactive solar power plants including rooftop and small solar Photo voltaic power plants) Tariff Order dated 10th Oct 2013 for rooftop and small solar PV Plants with a sole intension to make undue profit."
9. On going through the same this Court is of the opinion that the policy which was brought into force by the first respondent - State for encouraging production of power by utilizing vacant space on the rooftop of residential/commercial and other buildings by the persons who are occupying said buildings and to ensure that excess power, if any, is sold in favour of the third respondent supply company is defeated/misinterpreted in implementation of the project by the petitioners herein, wherein the fourth respondent has observed that the proposed solar plant set-up by the petitioners herein is with an intention to sell maximum or whole of the quantum of the power generated by them at the agreed 11 tariff to third respondent GESCOM in pursuance to the KERC Tariff which is held to be not in consonance with the terms of the agreement (the relevant portion of the order is highlighted by underlining the same).
10. In that view of the matter, this Court is of the opinion that whether the intention in the agreement is properly implemented by the petitioners while setting up the power generating project or in the alternative whether the fourth respondent has wrongfully withdrawn from the agreement without considering or whether the petitioners have adhered to the terms of the agreement in implementation of project, will have to be decided in a proceedings before the Civil Court where there is scope for the parties to demonstrate breach of the terms of agreement and as well as the consequential loss suffered by them which entitles them to enforce the said agreement either for implementation or in the alternative for damages and the same cannot be looked into in the writ jurisdiction inasmuch as the feasibility of the terms of agreement will 12 have to be looked into from the angle of policy under which the agreements in question are entered into.
11. In that view of the matter, this Court find that the present writ petitions filed by the petitioners seeking the relief prayed for by them cannot be entertained in the writ jurisdiction. Therefore, liberty is reserved to the petitioners either to approach the Government pursuant to Clause 20 of the Solar Policy 2014-2021 notified vide bearing No.EN-21-VSC-2014 dated 22.05.2014 seeking amendment/review/relaxation/interpretation of the provision to help the petitioners to save their project which is said to have been commenced pursuant to various agreements entered into between the petitioners and fourth respondent or in the alternative to exhausts their remedy before the Civil Court.
With such observation, these writ petitions are disposed off.
Sd/-
JUDGE sn