IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MRS. JUSTICE S. SUJATHA WP NOs.31942 & 31943 OF 2018 (GM-KEB) BETWEEN:
1. E I D PAARY (INDIA) LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, REGISTERED OFFICE AT DEAR HOUSE 243, N S C BOSE ROAD, PARRYS CORNER, CHENNAI-600 001 HAVING ITS PLANT AT HULLATTI VILLAGE, HALIYAL, UTTAR KANNADA DISTRICT-581 329 REPRESENTED BY ITS AUTHORIZED SIGNATORY MR. DHANAPALAKSHA, SENIRO MANAGER 2. GODAVARI BIOREFINERIES LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT SOMAIYA BHAVAN, 45/47, M.G. ROAD, FORT, MUMBAI-400 001 (REPRESENTED BY ITS AUTHORIZED SIGNATORY) (BY SRI SRIDHAR PRABHU, ADVOCATE) AND 1. KARNATAKA ELECTRICITY REGULATORY COMMISSION, ... PETITIONERS 6TH AND 7TH FLOOR, MAHALAKSHMI CHAMBERS NO.9/2, M.G. ROAD, BANGALORE-560 001 REPRESENTED BY ITS SECRETARY 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 L.J. AVENUE, NEW SARASWATHIPURA, MYSURU-570 009 (REPRESENTED BY ITS MANAGING DIRECTOR) 4. GULBARGA ELECTRICITY SUPPLY CORPORATION LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT STATION ROAD, KALABURAGI-585 102, (REPRESENTED BY ITS MANAGING DIRECTOR 5. HUBLI ELECTRITY SUPPLY CORPORATION LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT NAVANAGAR, HUBBALI-570 009 (REPRESENTED BY ITS MANAGING DIRECTOR 6. MANGALORE ELECTRICITY SUPPLY CORPORATION LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT A.B. SHETTY CIRCLE ROAD, MANGALORE-575 001 (REPRESENTED BY ITS MANAGING DIRECTOR ... RESPONDENTS (BY B.L. MAYANNA, ADVOCATE FOR R1; PRADEEP DARAK, FOR SRI SRIRANGA, ADVOCATE FOR R2 TO 46) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER 19.07.2018 OF R1 IN R.P. NO.09/2017 – A COPY OF ORDER DATED 19.07.2018 PRODUCED AS ANNEXURE-A.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioners have challenged the order dated 19.07.2018 issued by respondent No.1 in R.P. No.09/2017.
2. The petitioners are the Companies engaged in the power production - owners and operators of bagasse- based Co-generation Power Producing Unit within the State of Karnataka. It is submitted that the first respondent passed an order on 01.01.2015 in the matter of determination of tariff in respect of Mini- Hydel, Bagasse based Co-generation and Rankine Cycle based Biomass Renewable Energy Projects.
3. An order has been passed on 11.04.2017 in O.P. No.38/2016 by respondent No.1, reducing the tariff for certain set of projects. The ESCOMs have filed Review Petition No.9/2017 seeking for reduction of the tariff against the said order. No final orders in the said review petition are passed. In the meanwhile, the Commission – respondent No.1 vide order dated 19.07.2018 has called upon the parties for hearing inasmuch as whether the reduction of fuel costs in the Recent Generic Tariff Order is relevant for the disposal of the review petition No.9/2017, either as a ground of review or independent of it. Being aggrieved, the petitioners are before this Court.
4. Learned counsel Sri Sridhar Prabhu appearing for the petitioners would submit that the Commission has no power to revise the orders on the premise of hearing the review petition filed by the ESCOMs, where no specific ground relating to reduction of fuel costs in the Recent Generic Tariff Order was raised. The Regulatory Commission – respondent No.1 exceeding the jurisdiction has issued the order/notice calling upon the parties to adjudicate on the issue, which is neither a subject matter of the O.P. No.38/2016 nor RP No.9/2017. The impugned order/notice being without jurisdiction deserves to be quashed.
5. Learned counsel Sri B.L. Mayanna, appearing for respondent No.1 would submit that no final orders are passed in RP No.9/2017 filed by the ESCOMs seeking review of the order dated 11.04.2017 passed in O.P.
No.38/2016. In view of the reduction of fuel costs in the Recent Generic Tariff Order it was called upon the parties to examine the same as to whether the same is relevant for the disposal of the review petition No.9/2017 or whether it has to be considered independently. The petitioners without appearing before respondent No.1 - Commission, has rushed to this Court. It was submitted that, no decision has been taken on the issue relating to the reduction of fuel costs based on the Recent Generic Tariff Order. The same requires to be adjudicated after hearing the parties concerned.
6. Learned counsel Sri Pradeep Darak for Sri S. Sriranga, appearing for the ESCOMs would submit that the writ petitions are premature and cannot be entertained. Hence, seeks for dismissal of the writ petitions.
7. Having heard the learned counsel for the parties and perusing the material on record, it is not in dispute that the review petition No.9/2017 though heard and reserved for orders, no final orders are passed. In the said proceedings, respondent No.1-Commission in order to ascertain the effect of the Recent Generic Tariff Order relating to the reduction of fuel costs, whether would be relevant for the disposal of the review petition, has called the parties to address on the said issue.
8. In such circumstances, the petitioners ought to have appeared before respondent No.1-Commission and put forth their explanation/reply regarding the question raised by the Commission. At this stage, the review petition requires to be finally disposed of by the Commission. In the said interregnum period, if any other relevant aspects requires to be considered by respondent No.1 – Commission, there is no bar/embargo calling upon the parties to address such issues.
9. It is needless to observe that the petitioners are at liberty to put forth their contentions before respondent No.1-Commission. Reserving the rights and contentions of the parties, the writ petitions stand disposed of. In the event, if any explanation/reply is filed by the respective parties, the Regulatory Commission shall consider the same in accordance with law and take a decision in an expedite manner.
Writ petitions stand disposed of in terms of the above.
Sd/- JUDGE Sbs*