IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 8TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.6750 OF 2017 (GM-RES) BETWEEN:
M/S. UNITED GREEN POWER BELGAUM PRIVATE LIMITED HAVING ITS REGISTERED OFFICE AT NO.6, MARUTHI LAYOUT RMV, SY.NO.24/3, N.S.HALLI SANJAY NAGAR BENGALURU – 560 094 (REPRESENTED BY ITS DIRECTOR SRI M VAMSIDHAR) …APPELLANT (BY SRI M.R.KRISHNAMURTHY, ADVOCATE FOR SRI B.V.SHANKARAARAYANA RAO, ADVOCATE) AND 1. STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY ENERGY DEPARTMENT VIKASA SOUDHA BENGALURU – 560 001.
2. KARNATAKA RENEWABLE ENERGY DEVELOPMENT LIMITED (GOVERNMENT OF KARNATAKA UNDERTAKING) #39, “SHANTHI GRUHA”
BHARATH SCOUTS AND GUIDES BUILDING OPPOSITE THE CHIEF POST MASTER GENERAL OFFICE PALACE ROAD BENGALURU – 560 001 (REPRESENTED BY ITS MANAGING DIRECTOR) …RESPONDENTS (BY SRI S.S.MAHENDRA, AGA) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO i)SET ASIDE THE ORDER DATED 31/10/2017 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.10840/2016 [GM-RES], IN SO FAR AS IT RELATES TO NON-GRANTING OF TIME EXTENSION AS SOUGHT IN THE WRIT PETITION AND ii) ALLOW THE WRIT PETITION IN TERMS OF THE PRAYERS IN THE WRIT PETITION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT The writ petitioner is before this Court in this appeal, aggrieved by the impugned order dated 31.10.2017 passed by the learned Single Judge in W.P.No.10840 of 2016, whereby the learned Single Judge confirmed the order impugned in the writ petition while disposing off the writ petition.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying for the following reliefs:
(i) Call for records from the office of the Respondent Nos.1 and 2;
(ii) Issue a writ of Certiorari or any other writ, order or direction quashing Condition No.4 in Government Order bearing No.EN 263 NCE 2014 dated 01.04.2015 (Annexure-H) while declaring the same to be arbitrary and illegal;
(iii) Issue a writ of mandamus or any other writ, order or direction directing the Respondent No.1 to prescribe the time for implementation of the project in terms of Government Order bearing No.EN 07 NCE 2011 dated 18.07.2011 (Annexure-D);
(iv) Issue a writ of mandamus or any other writ, order or direction directing the Respondent No.1 to withdraw the Condition No.3 in Government Order bearing No.EN 263 NCE 2014 dated 01.04.2015 (Annexure-H) in relation to levy of time extension fee;
(v) Issue a writ of Certiorari or any other writ, order or direction quashing the demand for a sum of Rs.67,41,600/- vide letter bearing “Ref:KRED.08.UGPBPL-49.3 MW.2015.1753 dated 25.05.2015” (Annexure-J), issued by the Respondent No.2.
3. The petitioner states that it is engaged in the business of generation of wind energy by establishing wind power projects. The respondent-State Government by order dated 28.12.2007 granted approval in favour of one Sri.H.Gopal Krishna for establishing 20M.W. wind power project at Telaginahatti Garr, Hoskoti, Belagavi District. In pursuance of the Government Order, the said H.Gopal Krishna entered into an agreement dated 30.04.2008 with the respondent-State Government. The agreement indicated terms and conditions of contract and the manner of implementation. The project was required to be completed and implemented within three years from the date of statutory clearances. But, the said Sri.Gopal Krishna had not implemented the project, hence the petitioner requested the State Government to transfer the project and approval in its favour with increased capacity of 49.3 M.W. Considering the request of the petitioner, the State Government by order dated 01.04.2015 granted permission for transfer of the approval granted to Sri.H.Gopal Krishna in favour of the petitioner with an increased capacity of 49.3 M.W. The State Government had issued corrigendum dated 18.07.2011 by which time limit of three years for completion of project from the date of statutory clearances was prescribed as stated above which was from stage-1 to stage-4. While granting approval in favour of petitioner under Order dated 01.04.2015, the State Government had put conditions No.3 and 4 to the effect that the petitioner shall pay duration fee for the period from 02.01.2014 to 01.10.2017 for implementing 20MW capacity Wind Power Project and that the project shall be implemented on or before 01.01.2017. Aggrieved by the said conditions of imposing extension of time fee stating that the time for completion would commence from 01.04.2015, the petitioner filed the instant writ petition. The respondent-State Government filed its statement of objection contending that the petitioner’s approval w.e.f. 01.04.2015 cannot be considered as fresh approval. The time frame of three years for 20MW project would not be applicable to the petitioner from 01.04.2015 as contended by the petitioner. The learned Single Judge considering the contentions of the parties was of the view that the condition imposed would not call for interference and dismissed the writ petition. Hence, the present appeal.
4. Learned counsel for the appellant would submit that the learned Single Judge committed an error in dismissing the writ petition without noticing the fact that the approval in the name of the petitioner was made as per Government Order dated 01.04.2015 and three years time would start from the said date. Learned counsel for the petitioner contends that the learned Single Judge taking note of the Government Order dated 01.04.2015 ought to have held that the petitioner is not liable to pay duration fee as demanded. It is contended that the imposing of conditions in Government Order dated 01.04.2015 is arbitrary, illegal and opposed to Government Order dated 18.07.2011. The petitioner-appellant has taken steps for speedy implementation of the project. Hence prays for allowing the appeal.
5. Per contra, learned Government Advocate would submit that the project in respect of 20MW was approved in favour one Gopal Krishna in the year 2007 and the said Goapal Krishna had entered into an agreement with the State Government in the year 2008. The Karnataka Renewable Energy Policy 2009-2014 would indicate that time for completion of project would be three years from the date of clearances from the concerned Departments. Further corrigendum dated 18.07.2011 would also indicate time for completion of the project as three years from the date of statutory clearances. He submits that demand of Rs.67,41,000/- towards extension fee for implementation of 20MW project is justified. Hence prays for dismissal of the appeal.
6. On going through the reasoned order of the learned Single Judge, on hearing the learned counsels and on perusal of the appeal papers, we are of the view that the order of the learned Single Judge is neither perverse nor erroneous so as to call for interference. Admittedly, one Sri.H.Gopal Krishna was granted approval for establishing 20MW wind power project by Government Order dated 28.12.2007. In furtherance of the said Government Order allottee Sri.H.Gopal Krishna entered into an agreement with the State Government on 30.04.2008. Under corrigendum dated 18.07.2011, the Government amended the Karnataka Renewal Energy Policy, 2009-2014 with regard to time limit for completion of project. Under amendment, the allottee had three years period from the date of statutory clearances for completion of the project with Grind Synchronization. Even though, Sri.H.Gopal Krishna was allotted the project under Government Order dated 28.12.2007, as per the amendment dated 18.07.2011 Gopal Krishna was required to complete the project within July 2014. Whereas, at the request of the petitioner under Government Order dated 01.04.2015, the 20MW Wind Power Project was transferred in favour of the petitioner with certain conditions. The conditions relevant for the present case are Conditions No.3 and 4 of the Government Order dated 01.04.2015, which read as follows:
“3. M/s. United Green Power Belgaum Pvt. Ltd. shall pay duration fee to KREDL for period from 02.01.2014 to 01.10.2017 for implementing 20 MW capacity Wind Power Project.
4. M/s. United Green Power Belgaum Pvt. Ltd should implement the project before 01.01.2017.”.
7. The transfer of 20MW capacity Wind Power Project from Sri.H.Gopal Kirshna to the petitioner is not a new project, it is a project allotted to H.Gopal Krishna in the year 2007 and he had entered into an agreement with the State Government on 30.04.2008. The contention of the petitioner that the project is approved in their name only on 01.04.2015 and the time limit for completion of the project is to be taken from that date cannot be accepted, since it cannot be considered as a fresh project. Three years period for completion of project contemplated under Corrigendum dated 18.07.2011 is for the new projects and not for the project which has been transferred in favour of the petitioner. Even though the transfer in favour of the petitioner is with higher capacity of 49.3 MW, insofar as project with regard to 20MW transferred from Sri.H.Gopal Krishna to the petitioner, the conditions No.3 and 4 of Government Order dated 01.04.2015 is neither arbitrary nor illegal as contended by the petitioner. In fact a specific date for completion of transferred project in respect of 20MW has been stipulated on or before 01.01.2017 and the same has been accepted by the petitioner. However, the petitioner sought extension of time for completion of the project with regard to transferred 20MW project, for which, the respondent-State Government has rightly demanded extension fee of Rs.67,41,600/-. The time frame initially granted to Sri.H.Gopal Kirshna is to be taken for consideration for calculating the period of completion and not the date of transfer i.e., 01.04.2015 to the petitioner for completion of project. However, the learned Single Judge has granted liberty to the petitioner to make representation if there is any discrepancy in calculation of the extension fee. Therefore, we are of the view that, as contended by the petitioner, conditions No.3 and 4 of the Government Order dated 01.04.2015 are neither arbitrary nor illegal. The petitioner has not made out any ground to interfere with the order of the learned Single Judge. The learned Single Judge has passed a reasoned order. There is no merit in the appeal. Hence, the appeal is dismissed.
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JUDGE JUDGE mpk/-* CT:bms