IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF MAY, 2019 BEFORE THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD WRIT PETITION NOs.21126-21128 OF 2019 (GM-KEB) BETWEEN:
1. Paschim Hydro Energy Pvt. Ltd. A Company registered under the Provisions of the Companies Act, 1956 Having its office at 23/8, Christu Krupa, 1st Floor, 1st Cross, CST Compound Lalbagh Road, Bengaluru-560 027 Represented by its Director Mr. B.R.Vasantha Kumar 2. Nararjuna Hydro Energy Pvt. Ltd. A Company registered under the Provisions of the Companies Act, 1956 Having its office at 23/8, Christu Krupa, 1st Floor, 1st Cross, CST Compound Lalbagh Road, Bengaluru-560 027 Represented by its Managing Director Mr. Srinivas Movalla 3. Mysore Mercantile Company Limited A Company registered under the Provisions of the Companies Act, 1956 Having its office at 201 & 202, 2nd Floor Shreshta Bumi, No.87, K.R.Road Basavanagudi, Bengaluru-560 004 Represented by its Managing Director Mr. H.Srinivasa Shetty ... Petitioners (By Sri K.G.Raghavan, Senior Counsel for Sri Sundararaman, N, Advocate for P1 & P2; Sri Arun Kumar, Senior Counsel for Sri Sundararaman N, Advocate for P3) AND 1. The Karnataka Power Transmission Corporation Limited Having its registered office at Cauveri Bhavan, Bengaluru-560 001 Represented through its Managing Director 2. Maruthi Gen Power Pvt. Ltd.
A Company registered under the Provisions of the Companies Act, 1956 No.22/4, Race Course Road, Bengaluru Represented by its Managing Director.
... Respondents (By Sri Shashikiran Shetty, Senior Counsel for R2) These writ petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the letter dated 27.04.2019 issued by the respondent No.1 to the respondent No.2 produced at Annexure-T and etc.
These petitions coming on for preliminary hearing this day, the Court made the following:-
ORDER Heard the learned Senior Counsel-Sri K.G.Raghavan and Sri Arun Kumar for the petitioners and Sri Shashikiran Shetty for respondent No.2, and with their consent, the petitions are taken up for final disposal while dispensing notice to the respondent No. 1.
2. There is no dispute that the impugned order at Annexure-T could only be challenged under the provisions of Section 86(1) of the Electricity Act, 2003 read with Clause 21 of the KERC (General and Conduct of Proceedings) Regulations, 2000, and the petitioners have initiated proceedings under the aforesaid provisions before Karnataka Electricity Regulatory Commission (for short, KERC). But, such petition, which is yet to be numbered, is not taken up for consideration by the KERC. The learned senior counsel for the petitioners submit that the petitioners could not impugn Annexure – T in the aforesaid petitions filed before the KERC on 2.5.2019, because the petitioners had not received a copy of the Annexure – T as of that date, and the petitioners shall file necessary applications in this regard in the petition pending before the KERC on the first date of the hearing. The learned Senior counsel for the respondent No. 2 submits that the respondent No.2 does not propose to object to such applications.
3. The learned Senior Counsel for the parties submit that the KERC, which has not been able to take up the aforesaid petition for consideration, could be called upon to decide on tenability of Annexure- T dated 27.04.2019 issued to respondent No.2 in a time bound manner without this Court expressing any merits and the parties shall appear before the KERC on 10.05.2019, which could be the first date of hearing without further notice.
4. However, the learned senior counsel on either side are unable to make any submission in unison as regards the interim arrangement to prevail until the KERC decides on the Petitioner’s prayer for interim stay of operation of Annexure – T dated 27.04.2019.
5. Sri K.G.Raghavan and Sri Arun Kumar, the learned Senior counsel for the petitioners argue for stay of the operation of the impugned Annexure – T dated 27.04.2019 until the KERC takes up the Petitioners’ prayer for Interim Order. They contended that the respondent No.1, as against the Regular Re-revised Evacuation Scheme approved on 22.06.2017, has granted approval for Provisional Interconnection vide the impugned Annexure – T dated 27.04.2019 without conditions contained in the approval of the Re-revised Evacuation Scheme dated 22.06.2017. The total generating capacity of the petitioners is 27MW and the carrying capacity of the transmission line (the 66 KV Sakleshpur Double Circuit Line in question) is only 30MW. It is indisputable that there must be a safety factor of 10-15%. If the respondent No.1 were to inject, or evacuate 24 MW or any portion thereof, via the aforesaid transmission line, which is installed at a huge cost by the petitioners in compliance with the scheme approved in their favour, there would be complete disruption and the lines would irreplaceable during the monsoon resulting in loss to everyone, including the consumers. There is no justifiable hurry in granting a Provisional Interconnection approval, diluting the conditions, when the respondent No.2 could not generate power or evacuate power despite the Re- revised approval granted in the month of June 2017 i.e., on 22.06.2017. The learned Senior counsel submit that these are the initial submissions in support of the interim prayer and to impress upon this Court that there is immediate need for protection against the respondent No. 2 evacuating power via the subject transmission line even pending consideration of Interim Prayer by the KERC.
6. Sri Shashikiran Shetty, the learned senior counsel for respondent No.2, on the other hand, submits, placing reliance upon the Minutes of Meeting held on 04.05.2019 including the officers of respondent No.1 and petitioners, that even as of now the petitioners are not able to inject more than 5 MW, and the submission that the petitioners are able to evacuate 27 MW is factually incorrect. The Chief Engineer (Electricity) Transmission Zone, Hassan in the Minutes of Meeting held on 04.05.2019 has recorded that the respondent No.2 shall inject/evacuate not more than 4MW and subject to the condition that such evacuation and injection shall be after installation of suitable Special Protection Scheme (SPS) within its premises. The respondent No.2 has complied with the condition insofar as installation of special protection scheme. The learned senior counsel on instructions submits effective from today the respondent No. 2 has commenced injection/ evacuation of power via the aforesaid transmission line. Further, the learned Senior Counsel, on instructions, submits that subject to any orders that could be made by KERC on the Petitioners’ request for interim relief, the respondent No.2 shall not evacuate or inject more than 3MW, and this allay any fear of overloading and disruption.
7. The prayer for an interim arrangement to prevail until the KERC takes up the petitioners’ request for interim order is considered in the light of the following:
a) The undisputed carrying capacity of the transmission line in question is only 30MW. The Re-revised Evacuation Scheme approved in favour of respondent No.2 on 22.06.2017 is on certain conditions, but these conditions are not part of the impugned Provisional Interconnection approval vide the impugned Annexure – T dated 27.04.2019.
b) The impugned Annexure- T is dated 27.04.2019 and it is issued in the face of the repeated objections by the petitioners as found in Annexure- P series and the Communication dated 24.04.2018 by the Executive Engineer (Ele) T L & S S Division, KPTCL, Prasarana Bhavan, Hassan as against the dangers of permitting evacuation through the transmission line in question.
c) The petitioners are already before the KERC under the appropriate provisions of the Electricity Act and the relevant regulations, and the KERC is not able to take up such petition for consideration.
d) A meeting is held on 04.05.2019 and that the representatives of the petitioners and respondent No.2 have participated. In this meeting, the concessions, which are deviations from the terms in Annexure – T dated 27.04.2019, is permitted.
e) Though it is submitted that the respondent No.2 has been able to connect to the grid and has evacuated power in terms of the Minutes of Meeting held on 04.05.2019, no documents are placed.
8. Interim orders are granted in pending proceedings to ensure that status-quo is maintained and no litigant is presented with a fait accompli. If the respondent No.2 were to operationalize by evacuating or injecting power pursuant to impugned Annexure – T dated 27.04.2019, or the subsequent Minutes of Meeting held on 04.05.2019 wherein further concessions are granted, without even the petitioners being heard, there could be violation of the aforesaid salutary principle. Therefore, this Court is of the considered view that there shall be stay of the impugned Annexure – T dated 27.04.2019, and consequential orders, including the Minutes of Meeting held on 04.05.2019, until the petitioners’ applications for interim prayer is taken up for consideration by the KERC observing that the KERC shall, as is required in law, decide on the merits without howsoever being influenced by any of the observations made by this Court. As such, the following order:
ORDER a) The Writ Petition is disposed off calling upon the KERC to take up the petitioners’ petition, which is yet to be numbered but filed on 02.05.2019 for consideration on 10.05.2019, which shall be the date of first hearing.
b) The petitioners and respondent No.2 shall appear before the KERC on 10.05.2019 without further notice and the KERC shall dispose of the petition, or in the least the Petitioner’s request for interim prayer, within a period of two weeks from 10.05.2019.
c) The operation of the impugned Annexure – T dated 27.04.2019, and consequential proceedings thereto, is stayed until the KERC decides on the request for interim prayer with liberty to the Parties to argue before the KERC for either continuation of the stay of the operation of the impugned Annexure – T dated 27.04.2019 beyond 10.5.2019.
d) No costs.
SD/- JUDGE Kmv