Karnataka High Court
Mr A H Veeraiah vs The State Of Karnataka on 1 December, 2022
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WP NO. 55523 OF 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.55523 OF 2017 (GM-RES)
BETWEEN:
1. MR. A H VEERAIAH
S/O LATE V K HANUMANTHAIAH
AGED ABOUT 62 YEARS,
RESIDING AT SURVEY NO.485,
VENKATAPURA VILLAGE,
PAVAGADA TALUK,
TUMKUR DISTRICT.
2. MRS. LAKSHMIDEVAMMA ALIAS LAKSHMI DEVI
W/O MR. A H VEERAIAH
AGED ABOUT 57 YEARS,
RESIDING AT SURVEY NO.487,
VENKATAPURA VILLAGE,
PAVAGADA TALUK,
TUMKUR DISTRICT.
3. MR. M B MOHAN
S/O LATE M R BALADEV
Digitally signed by
AGED ABOUT 39 YEARS,
LAKSHMINARAYAN N
Location: High Court
RESIDING AT SURVEY NO.350/6,
of Karnataka
KRISHNAPURA, VENKATAPURA,
PAVAGADA TALUK,
TUMKUR DISTRICT.
4. MRS. M B VIJAYALKASHMI
W/O LATE M R BALADEV
AGED ABOUT 60 YEARS,
RESIDING AT SURVEY NO.350/7,
KRISHNAPURA, VENKATAPURA,
PAVAGADA TALUK,
TUMKUR DISTRICT.
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WP NO. 55523 OF 2017
5. MR. C NARASIMHAPPA
S/O MR. CHALLA NARASIMHAPPA
AGED ABOUT 68 YEARS,
RESIDING AT SURVEY NO.50/2, 118,
ARALIKUNTE VILLAGE,
KASABA HOBLI,
PAVAGADA TALUK,
TUMKUR DISTRICT.
6. MR. C LAKSHMI DEVI
W/O MR. C NARASIMHAPPA
AGED ABOUT 60 YEARS.
RESIDING AT SURVEY NO.50/2,
ARALIKUNTE VILLAGE,
KASABA HOBLI,
PAVAGADA TALUK,
TUMKUR DISTRICT.
...PETITIONERS
(BY SRI. VIKRAM B. HUILGOL, SENIOR ADVOCATE
FOR SRI. ASHOK B PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA,
BANGALORE-560 001.
2. THE ADDITIONAL CHIEF SECRETARY
ENERGY DEPARTMENT,
VIKASA SOUDHA,
BENGALURU-560 001.
3. THE EXECUTIVE ENGINEER
C, O & M DIVISION,
BESCOM, MADHUGIRI,
TUMKUR DISTRICT-572 132.
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WP NO. 55523 OF 2017
4. THE ASSISTANT EXECUTIVE ENGINEER
BESCOM, PAVAGADA TALUK,
PAVAGADA
TUMKUR DISTRICT-572 116.
5. MANAGING DIRECTOR
BESCOM, CORPORATE OFFICE,
BESCOM, K.R. CIRCLE,
BENGALURU-560 001.
6. THE GENERAL MANAGER (ELE)
DSM, CORPORATE OFFICE,
BESCOM,
K.R. CIRCLE
BENGALURU-560 001.
7. KARNATAKA ELECTRICITY REGULATORY
COMMISSION
MAHALAKSHMI CHAMBERS,
NEAR TRINITY CIRCLE,
BENGALURU-560 001
REPRESENTED BY ITS SECRETARY.
...RESPONDENTS
(BY SMT. SHWETA KRISHNAPPA, AGA FOR R1 & R2;
SRI. S. SRIRANGA, SENIOR ADVOCATE FOR
SMT. SUMANA NAGANAND, ADVOCATE FOR R3 TO R6;
SRI. B.N. PRAKASH, ADVOCATE FOR R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER PASSED BY R-1 DATED
21.08.2017 AT ANNEX-U IN RESPECT OF THE POWER
PURCHASE AGREEMENT OF PETITIONER NO.1; QUASH THE
IMPUGNED ORDER PASSED BY R-2 DATED 21.08.2017 AT
ANNEX-U3 IN RESPECT OF THE POWER PURCHASE AGREEMENT
OF PETITIONER NO.2; AND ETC.
THIS PETITION, COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP NO. 55523 OF 2017
ORDER
In this writ petition, petitioners have challenged the order dated 21st August, 2017 (Annexure-U) passed by the respondent No.1 in respect of the Power Purchase Agreements entered with the petitioners inter alia seeking direction to the respondent-Bengaluru Electricity Supply Company to adhere to the terms and conditions of the purchase of power, in terms of Power Purchase Agreements produced at Annexure-J1 to J7.
2. Learned Senior Counsel Sri Vikram Huilgol, appearing on behalf of Sri Ashok B. Patil for Petitioners, submitted that petitioners are not pressing relief (j) challenging the provisions of the Karnataka Electricity Regulatory Commission (Fee) Regulations, 2016 (Annexure-S).
3. Relevant facts for adjudication of this writ petition are that, the State Government published Notification dated 01st July, 2011 with respect to Solar Policy for the period 2011- 2016 and thereafter, the said policy was revised vide Notification dated 22nd May 2014 (Annexure-A). The policy set out in the scheme provides for Grid-connected Solar Rooftop Projects and Metering, made for the purpose of implementation -5- WP NO. 55523 OF 2017 of the said policy and the State Government has entrusted the responsibility to the respondents 3 to 6 within the jurisdiction of Bangalore Electricity Supply Company (for short hereinafter referred to as "BESCOM"). In this connection, the State Government has issued Circular dated 10th December, 2015 inviting applications from Public for establishing Grid- connectivity of Solar Rooftop PV Generating System (SRTPV) (Annexure-P), wherein the offer has been made to the public in the said Circular to put-up solar power equipment in respect of new constructions as well as fixing solar panels over the roof of the structure and it is further provided that the construction of the structure should be completed within a period of one year from the date of agreement that may be entered into between BESCOM and prospective applicants. Thereafter, the respondent-BSECOM has issued another circular dated 23rd December, 2015 and pursuant to same, petitioners herein have submitted application for availing Grid connectivity of SRTPV Generating System on net metering basis with the respondent- BESCOM. The third respondent has inspected the field and technical feasibility certificates have been issued. Petitioners have also paid requisite fee for the purpose of installing SRTPV -6- WP NO. 55523 OF 2017 Generating System (Annexure F1 to F6). It is the case of the petitioners that the petitioners were not availing any subsidy or grant from the Ministry of New and Renewable Energy or from any other State instrumentalities for the Solar Power Project and in this regard, petitioners have filed self-declaration Form with the respondent-BESCOM. Further, Petitioners have secured permission and clearance from various authorities to construct building for the purpose of installation of SRTPV Generating Systems. Having taken note of the documents referred to above, Power Purchase Agreements (for short hereinafter referred to as the "PPA") were entered into between the respondent-BESCOM and petitioners 1 to 4 vide PPA dated 19th February, 2016; and with petitioners 5 and 6 vide PPA dated 14th March, 2016, for the purpose of installation of one Megawatt capacity SRTPV Generating System each over the roof of the structure to be constructed at the place belonging to the petitioners (Annexure-J, J1 to J6). In terms of the said PPAs, the parties have agreed for supply of power at the rate of Rs.9.56 per unit, as determined by the Karnataka Electricity Regulatory Commission (for short hereinafter referred to as the "KERC") as per the tariff order dated 10th October, 2013. It is -7- WP NO. 55523 OF 2017 further stated in the writ petition that pursuant to execution of aforementioned PPAs, the said agreements have been approved by the respondent No.7 upon verification of the documents (Annexure-M, M1 to M6). In view of the approval of PPAs, the SRTPV Generating System should be designed, engineered, constructed, commissioned and operated by the Seller or any other person on behalf of petitioners within the time stipulated. In furtherance of the same, the respondent No.3 has issued the commencement letters to the petitioners for installing SRTPV Generating Systems based on the approval made by respondent No.7. However, the petitioners could not commence the work on the respective lands within the time stipulated for want of leveling of land, designing the solar plant, digging borewells and such other related activities and as such, the petitioners have sought for financial assistance from third parties including statutory financial institutions for the purpose of completing the initial ground work for setting up of SRTPV Generating Systems. It is also stated in the petition that during the said interregnum period, due to constant change of Rules/Regulations by respondent-BESCOM and inconsistent stand within the department itself, petitioners found it difficult -8- WP NO. 55523 OF 2017 to implement the project well within the time stipulated in the PPAs. Be that as it may, the petitioners have received police notice and frivolous allegations against the petitioners, at the instance of the respondent-BESCOM and finally, the fourth respondent issued show cause notice dated 25th August, 2016, seeking explanation from the petitioners for not commencing the work for establishment of SRTPV Generating System, as per Annexure-Q, Q1 to Q6. Thereafter, the respondent No.3 has issued official memorandum dated 02nd September, 2016 (Annexure-R1 to R6) cancelling PPAs entered into with the petitioners and being aggrieved by the same, petitioners have approached this Court in writ petitions No.52694-98 of 2016 and connected petitions and this Court, by order dated 19th April, 2017 (Annexure-S), disposed of the writ petitions with a direction to the respondent therein to take decision in the matter taking into consideration the progress made in the lands in question. Pursuant to the direction issued by this Court, the respondent-BESCOM has issued show cause notice to the petitioners and the petitioners have replied to the show cause notice, as per Annexures-T to T12. The respondent No.3, by impugned orders produced at Annexure-U series, cancelled the -9- WP NO. 55523 OF 2017 PPAs executed by the respondent No.3 in favour of the petitioners. Being aggrieved by the same, petitioners have approached this Court in the present writ petition.
4. Heard Sri Vikram Huilgol, learned Senior Counsel appearing for Sri Ashok B. Patil, for the petitioners and Sri S. Sriranga, learned Senior Counsel, appearing on behalf of Smt. Sumana Naganand, for respondents 3 to 6-BESCOM; Sri B.N. Prakash, learned counsel appearing for respondent No.7; and Smt. Shweta Krishnappa, learned Additional Government Advocate for respondents 1 and 2-State.
5. Sri Vikram Huilgol, learned Senior Counsel appearing for the petitioners argued that the impugned order passed by the respondent-BESCOM cancelling the PPAs entered into with the petitioners, is illegal and requires to be interfered with, as the petitioners had invested huge amount by excavating the land for the purpose of installing the SRTPV projects under the PPAs. It is the principal submission of the learned Senior Counsel that the respondent-BESCOM, being a Public Sector Company, must motivate the petitioners to establish the SRTPV projects and further submitted that in
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WP NO. 55523 OF 2017 furtherance of execution of PPAs, petitioners have acted upon and have intimated the same to the respondent-BESCOM in their reply pursuant to the show cause notice issued by the BESCOM stating that in the event if the PPAs are revoked, they would be in a disadvantageous position in view of investing huge amount by obtaining financial assistance and therefore, he contended that the action of the respondent-BESCOM in cancelling the PPAs is contrary to law. Inviting the attention of the Court to the PPAs executed in favour of the petitioners, learned Senior Counsel pointed out that, Clause 9.3 of the PPA provides for term and termination of the agreements and the agreements are enforced for a period of 25 years from the date of commissioning of the SRTPV Generating System and the respondent-BESCOM shall conform to the compliance of Clauses 9.2 and 9.3 in the PPAs and therefore, learned Senior Counsel contended that the respondent-BESCOM has violated the conditions and has not acted upon in the spirit of the order passed by this Court in Writ Petitions No.52694-98 of 2016 and connected matters. Having invited the attention of the Court to various documents produced along with the writ petition with regard to delay in construction of structure to be made by the
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WP NO. 55523 OF 2017 petitioners herein in the lands in question, learned Senior Counsel contended that the unnecessary interference made by the officials of the respondent-BESCOM, as well as the vigilance Section of respondent-BESCOM by issuing periodical police notices, has caused delay in commissioning the project and accordingly, learned Senior Counsel submitted that there is no justification on the part of the respondent-BESCOM to cancel the PPAs.
6. Sri Huilgol, learned Senior Counsel, emphasised that the petitioners have secured necessary approvals from the Panchayats and such other statutory authorities and same is with in the knowledge of the respondent-BESCOM that the aspect of conversion of land and obtaining No Objection Certificates from the competent authorities under the provisions of Land Reforms Act, are superficial and the respondents have lost sight of with regard to the object of commissioning of the project and such an endeavour for solar policy, would not require the conversion of land and therefore, cancellation of PPAs as the said ground along is contrary to law. Learned Senior Counsel further contended that no fair
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WP NO. 55523 OF 2017 opportunity was granted to the petitioners before issuing the impugned orders of cancellation of PPAs and further the petitioners have taken all the steps by removing the fruit- bearing trees and the crops in the lands in question and therefore, cancellation of PPAs would result in victimising the interest of the petitioners and as such, the learned Senior Counsel submitted that the impugned cancellation of PPAs is contrary to the frame-work of the Electricity Act and accordingly, sought for interference of this Court. In this regard, learned Senior Counsel invited the attention of the Court to the Division Bench judgment of this Court in the case of N. AMMAN RAJU AND OTHERS v. STATE OF KARNATAKA AND OTHERS made in Writ Appeal No.200557 of 2018 and connected Appeals; in the case of SRI K. SRIDHAR v. SRI RAMAKRISHNA REDDY made in CCC No.772 of 2021 and connected petitions decided on 15th February, 2022; in the case of MR. K. RAMESH AND OTHERS v. STATE OF KARNATAKA AND OTHERS reported in Writ Appeal No.200502 of 2018 decided on 20th January, 2021; and in the case of SMT. HEMAVATHI v. STATE OF KARNATAKA AND OTHERS made in Writ Petition No.54004 of 2017 and connected petitions decided on 23rd April
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WP NO. 55523 OF 2017 2019 and argued that the impugned order of cancellation of PPAs requires to be set aside in this writ petition.
7. Per contra, Sri S. Sriranga, learned Senior counsel appearing for the respondent-BESCOM, invited the attention of the Court to the order dated 10th October, 2013 by the KERC in respect of Generic Tariff Order, particularly by referring to tariff for grid connected Solar PV, Solar Thermal Power Plants and Rooftop Solar Proto-Voltaic Plants and submitted that Rs.9.56 per KW is the relevant tariff in SRTPV, inter alia control period from 13th July, 2010 to 31st March, 2013. Learned Senior Counsel invited the attention of the Court to the Notification dated 22nd May 2014 with respect to Solar Policy 2014-2021 as well as the Circular dated 10th December, 2012 issued by the Government, which stipulates the construction of building with electric connection in respect of the SRTPV Generating System be made within a period one year. Insofar as the existing building is concerned, learned Senior Counsel for the respondent-BESCOM referred to Clause 8(vii) of Consumer guidelines for availing Grid connectivity of Solar Rooftop PV Systems in BESCOM, and contended that the maximum time
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WP NO. 55523 OF 2017 frame for completion of installation work, in all respects, is 180 days. Pointing out the delay on the part of the petitioners to install the plant for commissioning of SRTPV Generating System, Sri Sriranga, learned Senior Counsel argued that except making payment of Rs.7,000/- towards registration fee, no efforts have been made by the petitioners to complete the project within one year from the date of execution of PPAs. Learned Senior Counsel further contended that the petitioners ought to have installed the plant for SRTPV Generating System must ensure the completion of technical and interconnection requirements, as envisaged under the PPAs. It is also the condition precedent that clearance and approvals have to be obtained from BESCOM and/or statutory body. Referring to the liability clause under the PPAs, learned Senior Counsel argued that petitioners are solely responsible for availing any fiscal and other incentive provided by the Government at their own cost. Emphasising on the aspect of the termination of the PPAs, the learned Senior Counsel submits that Clause 9 of the PPA was taken into consideration and further argued that the respondent-BESCOM has complied with all the requirements before issuing the impugned order of cancellation. Learned
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WP NO. 55523 OF 2017 Senior Counsel also referred to the provision made for resolution of dispute, if any, as set out in the PPAs and argued that said clause provides for approaching the appropriate Forum of Law for resolution of dispute. In this regard, he argued that in view of the agreement entered into between the parties in terms of the PPAs, the petitioners, at the most, are entitled for damages in the proceedings and cannot approach this Court under Article 226 of the Constitution of India. Sri Sriranga, learned Senior Counsel, also referred to the letter dated 11th May, 2016 (Annexure-N) and argued that the respondent-BESCOM has intimated petitioners to select a reputed system installer of their choice to install SRTPV Generating System and commissioning has to be completed within 18th February, 2017 as per letter dated 12th May, 2016 (Annexure-M series) and despite the same, petitioners have not taken any steps to complete the project. Learned Senior Counsel also referred to the letter dated 25th August, 2016 (Annexure-Q) whereby the respondent-BESCOM has sought for explanation from the petitioners in respect of three conditions stated in the said letter vis-à-vis the reply made by the petitioners to that effect and argued that the explanation
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WP NO. 55523 OF 2017 offered by the petitioners is self-explanatory that the petitioners have not met any of the ingredients stated in the said letter and as such, he argued that the impugned order passed by the respondent-BESCOM is just and proper and the cancellation order is passed only after providing an opportunity to the petitioners in terms of the order dated 19th April, 2017 passed by this Court in Writ Petitions No.52694-98 of 2016 and connected matters. Sri Sriranga, learned Senior Counsel, further, referred to the photographs annexed to the statement of objection and argued that despite entering into PPAs, petitioners have not taken any steps to complete the buildings as required under the project. He also referred to the order dated 02nd May, 2016 passed by the KERC, whereby, as a result of rapid Solar Capacity addition, most of the Electricity Supply Companies have been able to achieve the present Renewable Purchase Obligation targets and learned Senior Counsel, also, referred to difference of tariff as shown in the said order. Further, Sri Sriranga, invited the attention of the Court to the order dated 18th May, 2018 whereby the KERC has determined the generic tariff for grid connected megawatt scale solar power project of less than one Megawatt capacity at
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WP NO. 55523 OF 2017 Rs.3.05 per unit and for grid connected SRTPV project at Rs.3.56 per unit (without capital subsidy) and at Rs.2.67 per unit (with capital subsidy). Learned Senior Counsel also places reliance on the tariff determined by the KERC dated 01st August, 2021 (Annexure-R3) and argued that the tariff was fixed at Rs.3.07 per unit for project of one kilowatt to 2000 kw (without capital subsidy); and Rs.2.32 per unit (with capital subsidy) and while comparing all the orders passed by KERC, learned Senior Counsel argued that the PPAs which provide for Rs.9.56 per unit is virtually unworkable for the respondent- BESCOM and in this connection, he argued that in the event if the impugned order is quashed, huge loss will be caused to the consumer and therefore, sought for dismissal of the petition.
8. Sri Sriranga, learned Senior Counsel also made available the order dated 18th August, 2021 passed by KERC and argued that the generic tariff was determined at Rs.3.19 per unit for SRTPV of one kilowatt to 2000 kilowatt and Rs.4.02 per unit (without capital subsidy) and Rs.2.67 per unit (with capital subsidy) and argued that the claim made by the petitioners seeking tariff at the rate of Rs.9.56 per unit is
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WP NO. 55523 OF 2017 exorbitant. In this connection, he referred to the order dated 17th July, 2016 passed in Writ petition No.41854 of 2016 made in the case of S.A. PRASANNA KUMAR v. STATE OF KARNATAKA AND OTHERS; in the case of GRAPHITE INDIA LIMITED v. KERC AND OTHERS decided on 17th July, 2017; in Writ Appeal No.4719 of 2017 decided on 20th February, 2019 in the case of S.A. PRASANNA KUMAR v. STATE OF KARNATAKA AND OTHERS; in WRIT PETITION No.12576 of 2017 made in GRAPHITE INDIA LIMITED v. KERC AND OTHERS decided on 21st June, 2018; in Writ Appeal No.3893 of 2019 connected with Writ Appeal No.190 of 2020 made in KARNATAKA POWER TRANSMISSION CORPORATION LIMITED v. HASSAN THERMAL POWER PRIVATE LIMITED AND ANOTHER.
9. Sri Sriranga, learned Senior Counsel, argued that Section 86 of the Electricity Act provides for resolution of disputes and therefore, interference by this Court is very limited. In this regard he referred to the judgment of Hon'ble Supreme Court in the case of GUJARAT URJA VIKAS NIGAM LTD. V. ESSAR POWER LIMITED reported in (2008)4 SCC 755.
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WP NO. 55523 OF 2017
10. Lastly, learned Senior Counsel for respondent- BESCOM argued that in view of disputed question of facts that are involved in this petition, the relief sought for by the petitioners cannot be accepted. In this regard, learned Senior Counsel places reliance on the judgment of Hon'ble Supreme Court in the case of MUNICIPAL COUNCIL, GONDIA v. DIVI WORKS AND SUPPLIERS, HUF AND OTHERS reported in 2022 SCC ONLINE 247.
11. Smt. Shweta Krishnappa, learned Additional Government Advocate for the respondent-State, reiterates the arguments advanced by the learned Senior Counsel for respondent-BESCOM and sought to justify the impugned order.
12. Having heard the learned Senior counsel appearing for the parties and the learned Additional Government Advocate appearing for the State, it is not in dispute that the petitioners, pursuant to the launching of Solar Policy 2014-2021 by the Government referred to in Notification dated 22nd May, 2014, entered into Power Purchase Agreements with the respondent- BESCOM. In terms of the said PPAs, petitioners intend to install SRTPV Generating System of 1000 kilowatt capacity on
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WP NO. 55523 OF 2017 the rooftop of the structure and same could be connected to electricity service commission bearing RR numbers referred to in the schedule properties of the petitioners. The respondent- BESCOM intends to purchase net energy exported at the tariff determined by KERC and in the present writ petition, the tariff was fixed at Rs.9.56 per unit, as determined by KERC (Clause 6 of the PPA). Installation of the SRTPV Generating System complies with approval of technical and interconnection requirement vis-à-vis comply with the standards and conditions referred to at clause (1) of the PPA. Clause (3) of PPA provides for obtaining necessary statutory approvals/clearance before connecting to SRTPV Generating System to the Distribution System. Clause (5) of the PPA mandates that the petitioners shall be responsible for availing any fiscal or incentive provided by the State or Central Government at their own cost. Clause (9) of the PPA provides for term and termination of the agreement. The said Clause reads as follows:
"9. Term and termination of the Agreement:
9.1 This agreement shall be in force for a period of 25 years from the date of commissioning of the
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WP NO. 55523 OF 2017 SRTPV system unless terminated otherwise as provided here under.
9.2 The Seller shall have right to terminate this agreement at any time by serving a written notice 60 (sixty) days in advance to BESCOM.
9.3 if the seller commits any breach of the Agreement BESCOM shall serve a written notice specifying the breach and calling upon the seller to remedy/rectify the same within 30(thirty) days or at such other period and at the expiry of 30(thirty) days or such other period from the delivery of the notice. BESCOM may terminate the agreement by delivering the termination notice. If the seller fails to remedy/rectify. 9.4 Upon termination of this Agreement, seller shall disconnect the SRTPV system from the distribution system and intimate the same to BESCOM."
13. Clause 10 of the PPA provides for resolution of dispute by the parties to the agreement, which reads as under:
"10. Dispute Resolution:
All the disputes between the parties arising out of or in connection with this agreement shall be first tried to be settled through mutual negotiation.
The parties shall resolve the dispute in good faith and in equitable manner. In case of failure to resolve the
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WP NO. 55523 OF 2017 dispute, either of the parties my approach the appropriate Forum of law."
14. Consumer Guidelines for availing Grid connectivity or SRTPV Generating System provides for maximum time frame of 180 days for completion of installation work in all respects by the applicant/petitioners herein in respect of the existing building and in respect of the vacant land, it is one year. In terms of the letter dated 13th April, 2016 by the KERC (Annexure-M), the SRTPV Generating System shall be designed, engineered, constructed, commissioned and operated by the petitioners within 19th February, 2017 (one year) (Annexure-M) series. Petitioners have also produced receipt for payment of registration fee of Rs.7,000/- towards SRTPV project. Approval for installing 1000 KW SRTPV Generating System was issued by respondent-BESCOM as per Annexure-N series. In the meanwhile, the respondent-BESCOM has issued police notices as per Annexure-P series stating that the petitioners have defaulted to giving effect to installation of SRTPV Generating Systems by not constructing building in the schedule lands. The petitioners have replied to the said police notices stating that, petitioners have made all the efforts to
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WP NO. 55523 OF 2017 install SRTPV Generating System in the schedule lands and have not violated the terms of conditions in the PPAs. In the meanwhile, the respondent-BESCOM has issued Notification dated 02nd September, 2016 cancelling the PPAs on the ground that the petitioners have not taken any steps in terms of PPAs. The said order dated 02nd September, 2016 was challenged before this Court in Writ petitions No.52694-98 of 2016 and connected petitions and this Court, by order dated 19th April, 2017 set aside the impugned order therein, cancelling the PPAs in the writ petition and as such, remanded the matter to the respondent-BESCOM to take decision after issuing fresh show- cause notice to the petitioners. Pursuant to the same, the respondent-BESCOM has issued show cause notice dated 03rd May, 2017 to the petitioners seeking explanation for not having complied with the terms and conditions referred to in the PPAs and thereafter, petitioners have made detailed reply on 09th May, 2017. I have carefully considered the reasons given by the petitioners for not having put up constructions in terms of the PPAs. It is stated by the petitioners that, petitioners, pursuant to the approval by the KERC, have removed the fruit bearing standing trees from the lands in question, levelled the
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WP NO. 55523 OF 2017 ground and preliminary preparation was made for putting up SRTPV Generating System. It is also stated by the petitioners that, petitioners have sought for financial assistance from the statutory bodies as well as investors and as such, same has caused delay in putting up the construction within one year.
15. It is also forthcoming from the writ papers that Department of Police BESCOM (Vigilance), has issued notices to the petitioners for having not complied with the terms and conditions in the PPAs for which the petitioners have replied to the same. It is also stated by the petitioners that the Executive Engineer, BESCOM Madhugiri, had issued Technical Feasibility Certificate, after conducting the spot inspection, at the time of executing the PPA and further stated that seeking conversion of land under Section 95 of Karnataka Land Revenue Act is not mandatory under the PPA and therefore, approached the officials of respondent-BESCOM on several occasions and informed them that several SRTPV Generating Systems are functioning in the State of Karnataka without obtaining conversion of land and permission under the provisions of the
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WP NO. 55523 OF 2017 Karnataka Land Revenue Act, is superficial to defeat the entire project.
16. The petitioners have also stated that necessary permission was taken from the local authority for the purpose of putting up the construction of strucuture and have contended that the query raised by the respondent-BESCOM as per Letter dated 25th August, 2016 (Annexure-Q) is misconceived and cannot be accepted. The petitioners have also narrated the steps taken by them for levelling the land and for carrying out such other relative activities for setting up of SRTPV generating systems. It is also the grievance of the petitioners that the respondent-BESCOM has dragged the petitioners to this Court to file writ petitions No.52694-98 of 2016 and connected petitions, by cancelling the PPAs by way of Notification dated 02nd September, 2016 and pursuant to the order passed by this Court in the aforementioned writ petitions, show cause notices have been issued by the respondent- BESCOM and same were replied suitably. In this connection, having noted the relevant list of events whereby the final order dated 21st August, 2017 came to be passed cancelling the
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WP NO. 55523 OF 2017 PPAs, which order is impugned in this writ petition. On careful consideration of the impugned order dated 21st August, 2017, it is forthcoming that the respondent-BESCOM has not properly investigated, appreciated and has not arrived at the just conclusion, considering the reasons assigned by the petitioners for having not installed the SRTPV Generating System in terms of PPAs. The impugned order issued by the respondent- BESCOM is not a speaking order and is cyclostyle in nature, except stating that the petitioners have not given convincing reply to the show-cause Notice dated 18th April, 2017. This Court, with elaborate discussion in writ petitions No.52694-98 of 2016 and connected petitions, set aside the order dated 29th May 2015 impugned therein, at the first instance, and directed the respondent-BESCOM to consider the case afresh including the contentions of parties were kept open.
17. In the light of the discussion made above, I have carefully considered the observation made by this Court in Writ Appeal No.200557 of 2018 and connected appeals dated 12th December, 2018, wherein, in identical situation, the Division Bench of this Court, extended the period to complete the
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WP NO. 55523 OF 2017 construction of SRTPV generating system within an outer limit of six months from the date of disposal of the writ appeal. The contentions raised by the respondent-BESCOM in this writ petition is vis-à-vis in the writ appeal are identical. This Court, taking into account the grievance of the appellants therein and the progress made by the appellants therein by removing the trees/plants in the lands, observed that the appellants therein cannot be left in lurch and accordingly, disposed of the appeals directing the respondent-BESCOM to provide six months' time to the appellants therein to install the SRTPV Generating Systems. The Learned Single Judge of this Court, in writ petition No.54004 of 2017 and connected matters, under similar circumstances, extended the period to complete the construction within a period of six months from 23rd April, 2019. The Division Bench of this Court in contempt proceedings in CCC No.772 of 2021 and connected cases disposed of on 15th February, 2022, granted six months time to the complainants therein to complete the construction work by giving effect to the PPAs. It is also relevant to cite another judgment of the Division Bench of this Court made in Writ Appeal No.200502 of 2018, whereby time was extended to the
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WP NO. 55523 OF 2017 appellants therein to construct the building within six months from the date of the order. Having taken note of the reasons made in those judgments referred to above, I have considered the arguments advanced by the learned counsel appearing for the parties wherein it is the grievance of the respondent- BESCOM that, as per the latest order dated 01st August, 2019 (Annexure-R3), the tariff fixed for grid connected SRTPV Generating System of 1 KW to 10 KW for domestic consumers at Rs.3.99 per unit (without capital subsidy) and at Rs.2.97 per unit (with capital subsidy) and as per Order dated 18th August, 2021 by the KERC, the tariff rate is Rs.4.02 per unit (without capital subsidy) and Rs.2.67 per unit (with capital subsidy). Taking into consideration the aforementioned tariff, learned Senior Counsel for the respondent-BESCOM, emphasising on the judgments of this Court in the case of S.A. PRASANNA KUMAR; and in the case of HASSAN THERMAL POWER PRIVATE LIMITED (supra); argued that the difference in tariff rate would affect the respondent-BESCOM, however, the careful examination of the replies made by the petitioners to the show- cause notice issued by the respondent-BESCOM in the light of the observation made by this Court in Writ Petitions No.52694-
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WP NO. 55523 OF 2017 98 of 2016 and connected petitions, would indicate that the respondent-BESCOM has not properly considered the grievance raised by the petitioners for the purpose of installation of SRTPV generating system within the time stipulated and therefore, I am of the opinion that the facts of the present case are akin to the judgment passed by the Division Bench of Court in Writ Appeal No.200557 of 2018 and connected appeals decided on 12th December, 2018. The said judgment in the Writ Appeal No.200557 of 2018 has been upheld by the Hon'ble Supreme Court in SLP(C)No.13062 of 2019 decided on 23rd August, 2019.
18. Nextly, as regards the principal argument advanced by the learned Senior Counsel respondent-BESCOM that disputed question of facts are involved and petitioners have to be relegated to approach the Civil Court to claim damages is concerned, the said submission cannot be accepted in the peculiar facts and circumstances of the case, as the petitioners have approached this Court on an earlier occasion being aggrieved by the unilateral cancellation of the PPAs in Writ Petitions No.52694-98 of 2016 and connected petitions and
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WP NO. 55523 OF 2017 thereafter, pursuant to the direction issued by this Court to issue show cause notice to the petitioners in compliance of the principles of natural justice and taking into account the said fact, at this stage, relegating the petitioners to approach the Civil Court is not an efficacious remedy nor giving effect to PPAs. I have also noticed that the petitioners have stated on oath that they have removed the standing trees in the lands earmarked for installation of SRTPV generating system, fruit bearing trees had been cut off and entire landscape has been changed and further, the present Writ Petition has been filed on 08th December, 2017 immediately after the termination/cancellation of PPAs dated 21st August, 2017 and writ petition was pending till date for hearing and therefore, I am of the view that, the contentions raised by the learned Senior Counsel for the respondent-BESCOM cannot be accepted solely on the count that the tariff of SRTPV Generating System is modified by KERC as per order dated 01st August, 2019 (Annexure-R3), and Order dated 18th August, 2021. It is to be noted that no agricultural activities are taken up in the lands in question and, on the other hand, removal of fruit bearing trees from the land would demonstrate the loss caused to the
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WP NO. 55523 OF 2017 petitioners financially and on the other hand, litigating the subject issue right from issuance of police notices by the respondent-BESCOM; co-ordinating with the officials of the respondent-BESCOM. It is submitted at Bar that some of the officials of the respondent-BESCOM have been removed from service during the said interregnum period and Departmental Enquiry has been initiated against such officers, and therefore, I am of the view that the petitioners herein have made out a case for setting aside the impugned final orders dated 21st August, 2017 issued by the respondent-BESCOM. However, taking into consideration the fact that PPAs are of the year 2016 and in order to give effect to the same, in my considered opinion, it is expedient to direct the petitioners to complete the installation of SRTPV Generating Systems, within the time- frame. Hence I pass the following:
ORDER
i) Writ petition is allowed;
ii) Impugned final order dated 21st August, 2017 by the respondent-BESCOM (Annexure-U, U1 to U6) are set aside and it is ordered that the
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WP NO. 55523 OF 2017 respondent-BESCOM shall issue commencement certificate to the petitioners within two weeks from the date of receipt of this order to enable the petitioners to put up construction of structures as per PPA produced at Annexure-J series;
iii) Upon issuance of commencement certificate to the petitioners by the respondent-BESCOM petitioners shall complete the construction of structure or building within six months from the date of issuance of commencement certificate by the respondent-BESCOM and the respondent-BESCOM shall carryout inspection and examine as to whether petitioners would meet the conditions referred to in the PPAs and to proceed further in the matter and if not, respondent-BESCOM would be at liberty to the terminate the claim of the petitioners or repudiate the PPAs, after issuing prior notice to
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WP NO. 55523 OF 2017 the petitioners with a reasoned order and same shall be communicated to the petitioners.
iv) The direction issued by this Court in Writ Appeal No.200557 of 2018 on 12th December, 2018 in respect of the parties therein mutatis mutandis, applicable to the parties herein.
SD/-
JUDGE LNN List No.: 1 Sl No.: 57