IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MR. L. NARAYANA SWAMY ACTING CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE P.S. DINESH KUMAR WRIT APPEAL NO.4719 OF 2017 (GM-KEB) BETWEEN:
SRI S.A. PRASANNA KUMAR S/O S.K. ANKE GOWDA AGED ABOUT 38 YEARS R/O NO.218, SAMPAHALLI VILLAGE GORAVALE POST, DUBBA HOBLI MANDYA TALUK & DISTRICT – 571 402.
... APPELLANT (BY SRI AMIT KUMAR DESHPANDE, ADVOCATE FOR SRI RAJAGOPAL M.R., ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF ENERGY VIKASA SOUDHA BANGALORE – 560 001.
2. THE SECRETARY KARNATAKA ELECTRICITY REGULATORY COMMISSION, 6TH & 7TH FLOORS MAHALAXMI CHAMBERS, NO.9/2 M.G. ROAD, BANGALORE – 560 001.
3. THE MANAGING DIRECTOR CHAMUNDESHWARI ELECTRICITY SUPPLY COMPANY, CORPORATE OFFICE NO.29, VIJAYANAGAR 2ND STAGE HINKAL, MYSORE – 570 017.
4. THE EXECUTIVE ENGINEER (ELE) CHAMUNDESHWARI ELECTRICITY SUPPLY COMPANY (O & M) MANDYA SUB-DIVISION MANDYA – 571 401.
... RESPONDENTS (BY SRI S.S. MAHENDRA, AGA FOR R1 SRI MAYANNA B.L., ADVOCATE FOR R2 SRI PRASHANTH MURTHY S.G., ADVOCATE FOR SRI S. SRIRANGA, ADVOCATE FOR R3 & R4) ---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED 17.07.2017 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.41854/2016 (GM-KEB) AND CONSEQUENTLY ALLOW THE W.P.NO.41854/2016 FILED BY THE APPELLANT HEREIN AND GRANT THE RELIEF AS SOUGHT FOR IN THE WRIT PETITION AND ETC.
THIS APPEAL COMING ON FOR HEARING THIS DAY, P.S. DINESH KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT Heard Shri Amit Kumar Deshpande, learned advocate for the appellant, Shri S.S. Mahendra, learned AGA for respondent No.1, Shri Mayanna B.L., learned advocate for respondent No.2 and Shri S.G. Prashanth Murthy, learned advocate for respondents No.3 and 4.
2. For the sake of convenience, the parties are referred to as per their status in the writ petition.
3. Briefly stated the facts of the case are, petitioner desirous of setting up a Solar Rooftop PV Systems Power Plant entered into a Power Purchase Agreement with M/s. Chamundeshwari Electricity Supply Company on 19.01.2016 followed by a supplementary agreement dated 09.02.2016. The said agreements were placed before the Karnataka Electricity Regulatory Commission for approval, which approved the agreements on 12.05.2016, wherein petitioner was required to complete the project on 08.08.2016. The project not having been completed on the said date, the Power Purchase Agreement dated 19.01.2016 was cancelled on 09.08.2016. Feeling aggrieved, petitioner has approached this Court with the instant writ petition.
4. Initially, an interim order was passed by the Hon’ble Single Judge permitting the petitioner to complete the construction on or before 18.01.2017. The Supply Company challenged the same in W.A.Nos.5000- 5001/2016 and the said appeals were allowed on 14.03.2017. The Hon’ble Single Judge has recorded in the impugned order that petitioner did not complete the project. It is further recorded that the Power Supply Companies cannot be expected to pay higher tariff rates, if the projects are delayed and in the course of time, the tariff rates go down and accordingly, the writ petition has been dismissed. Hence, this Writ Appeal.
5. Shri Amit Kumar Deshpande contended that as per Circular dated 10.12.2015, the petitioner had one year’s time from the date of Power Purchase Agreement to complete the construction. However, he was not permitted to complete the project by respondent No.4 on the premise that writ appeal was pending consideration before this Court.
6. The photographs produced before us as per Annexures-C and R5, would show that the project was not complete even as on 18.01.2017 as rightly recorded by the Hon’ble Single Judge. Even if the argument of learned advocate for the petitioner is accepted that an year’s time was available as per Circular dated 10.12.2015, the Hon’ble Single Judge initially had permitted the petitioner to complete the project on or before 18.01.2017. However, writ appeal has been disposed of in the month of March 2017, after the expiry of one year’s period which came to an end on 18.01.2017. In any event, the fact remains that even after expiry of one year period, the petitioner has not been able to complete the project.
7. Further, during the course of hearing, it is brought to our notice that at the time of entering into Power Purchase Agreements, the tariff rate was Rs.9.56 per unit and presently, it is around Rs.5 per unit. Thus, the power is now available at half the price at which the petitioner had offered to supply. In the circumstances, we find no error in the order passed by the Hon’ble Single Judge. Resultantly, this appeal fails.
8. However, as prayed for it is clarified that petitioner shall be at liberty to approach respondent No.4 or any other Power Supply Company to sell power to be produced by him on such mutually agreeable terms.
This appeal is accordingly disposed of.
In view of disposal of the appeal, I.A.No.1/2017 does not survive for consideration and it is disposed of.
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ACTING CHIEF JUSTICE Sd/- JUDGE ca