IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.21479/2019 (GM – KEB) BETWEEN:
BHORUKA POWER CORPORATION LTD., HAVING REGISTERED. OFFICE AT KITCHENANDA BUILDING, LAVELLE ROAD, OPP: NAVNIT MOTORS, ASHOK NAGAR, BENGALURU KARNATAKA-560001 REP. BY ITS SR. VICE PRESIDENT AND COMPANY SECRETARY Mr. M.S.SREENIVAS. …PETITIONER (BY SRI SHIVADASS, SENIOR ADVOCATE FOR SRI RAVI.V., ADV.) AND:
1. THE GOVERNMENT OF KARNATAKA DEPARTMENT OF ENERGY, THROUGH THE ADDITIONAL CHIEF SECRETARY, VIKASA SOUDHA, Dr. B.R.AMBEDKAR STREET, BANGALORE-01.
2. BANGALORE ELECTRICITY SUPPLY CO. LTD., (BESCOM) THROUGH ITS MANAGING DIRECTOR, K.R.CIRCLE, BENGALURU-01 3. KARNATAKA POWER TRANSMISSION CORPORATION LTD., THROUGH CHIEF ENGINEER (ELECTRICITY) RACE COURSE CROSS ROAD, BENGALURU-09 4. KARNATAKA ELECTRICITY REGULATION COMMISSION NO.9/2, 6TH AND 7TH FLOOR, MAHALAXMI CHAMBERS, M.G.ROAD, BANGALORE-01 KARNATAKA . …RESPONDENTS (BY SMT.M.JYOTHI, AGA. FOR R-1; SRI S.SRIRANGA, ADV. FOR R-2 & R-3;
SRI MAYANNA.B.L., ADV. FOR SRI B.N.PRAKASH, ADV. FOR R-4.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARATION THAT THE ACTION OF THE R-2 AND 3 IN NOT PERFORMING ITS OBLIGATIONS UNDER THE ELECTRICITY ACT, 2003 AS WELL AS THE GOK POLICY DATED 08.06.1992 AND THE WHEELING AND RANKING AGREEMENT DATED 25.11.1992 IS ILLEGAL, ARBITRARY AND UNCONSTITUTIONAL [ANNEXURES-E AND F] THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The matter is taken up for final disposal at this stage itself, with the consent of the learned counsel appearing for the parties.
2. The petitioner is before this Court challenging the action of the respondent Nos.2 and 3 in not performing its obligations under the Electricity Act, 2003 ['Act 2003' for short] as well as the Government of Karnataka Policy dated 08.06.1992 and the wheeling and banking agreement dated 25.11.1992 and for such other reliefs.
3. The petitioner is a company registered under the provisions of the Companies Act, 1956 ['Act 1956' for short], engaged in production and distribution of electricity/power. It is contended that on the approval of the State Government, the petitioner company is generating the power at Shivapur Mini-Hydel Plant. BESCOM is the distribution licensee formed under Section 14 of the Act, 2003. The epicenter of the dispute in the writ petition relates to the interpretation of the agreement dated 25.11.1992 executed between the KEB, now represented by the BESCOM and the petitioner M/s. Bhoruka Power Corporation Ltd., inasmuch as the permission for banking and wheeling of the energy generated by Shivapur Hydro Electric Power Station [SHEPS] through its grid in order to enable it to supply energy to such of the industries of Bhoruka Group/its nominees.
4. It appears that the BESCOM has addressed a letter to the State Government regarding withdrawing of the jurisdiction in providing wheeling and banking facilities to the petitioner on the ground that there is no provision to give consent to wheel the power to the third parties by the petitioner in terms of the Government Order. The attention of the Court is invited to Clause 13 of the Agreement dated 25.11.1992 by the parties to contend that any dispute in relation to the feeding of power into the KEB [BESCOM] transmission and distribution system for its banking and wheeling to the nominees, has to be resolved by the decision of the Government.
5. This Court by order dated 03.07.2019 directed the State Government to decide the dispute which has cropped up in view of the permission declined by the BESCOM to the petitioner for wheeling and banking with the non-captive users.
6. Learned Additional Government Advocate appearing for the State Government has filed a memo along with the letter of the State Government addressed to the BESCOM, wherein KERC has been directed to adjudicate upon the dispute and to take a decision in the matter in terms of the Electricity Rules, 2005.
7. Considering the aforesaid aspects, this Court is of the view that the dispute inasmuch as permission to be granted by BESCOM to the petitioner for wheeling and banking with non-captive users requires to be decided by an adjudicating authority and in the present case, KERC would be the appropriate adjudicating authority even in terms of the decision taken by the State Government.
8. Hence, the KERC – respondent No.4 is directed to decide the dispute in relation to feeding of power into BESCOM by the petitioner for its banking and wheeling to its nominees in terms of the agreement dated 25.11.1992 entered into between the petitioner and the then KEB, in accordance with law subject to the petitioner filing a petition within a period of seven days from today. Respondent No.4-KERC shall decide the matter in an expedite manner preferably within a period of 30 days from the date of the receipt of the petition by the petitioners.
All the rights and contentions of the parties are left open to be adjudicated by the KERC.
The existing arrangements shall continue till the final decision to be taken by the KERC.
With the aforesaid observations and directions, writ petition stands disposed of.
In view of disposal of the writ petition, all the pending I.As stand disposed of.
Sd/- JUDGE NC.