IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION No.10840/2016 (GM – RES) BETWEEN M/s. UNITED GREEN POWER BELGAUM PRIVATE LTD.
HAVING ITS REGISTERED OFFICE AT NO.6, MARUTHI LAYOUT RMV, SY.NO.24/3, N.S.HALLI SANJAY NAGAR BANGALORE – 560 094 (REPRESENTED BY ITS DIRECTOR SRI M VAMSIDHAR) (BY SRI B V SHANKARNARAYAN RAO, FOR SRI GOUTAM CHAND S F, ADVOCATES) AND 1. STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY ENERGY DEPARTMENT VIKASA SOUDHA BANGALORE – 560 001 2. KARNATAKA RENEWABLE ENERGY DEVELOPMENT LIMITED (GOVERNMENT OF KARNATAKA UNDERTAKING) #39, “SHANTHI GRUHA”
BHARATH SCOUTS & GUIDES BUILDING OPP. THE CHIEF POST MASTER GENERAL OFFICE …PETITIONER PALACE ROAD BANGALORE – 560 001 (REPRESENTED BY ITS MANAGING DIRECTOR) (BY SRI H T NARENDRAPRASAD, AGA FOR R1; SRI G S KANNUR, ADV., FOR R2) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH CONDTITION NO.4 IN GOVERNMENT ORDER DATED 01.04.2015 AT ANNEXURE – H WHILE DECLARING THE SAME TO BE ARBITRARY AND ILLEGAL AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER The petitioner is before this Court assailing the Condition No.4 in the Government Order dated 01.04.2015 at Annexure- H to the petition. The petitioner is further seeking that a direction be issued to respondent No.1 to prescribe the time for implementation of the project in terms of the Government Order dated 18.07.2011 as at Annexure-D. In that light, Condition No.3 of the order dated 01.04.2015 is also assailed. As a consequential relief to the remaining prayers, the demand of Rs.67,41,600/- through the communication dated 25.05.2015 as at Annexure-J is also assailed.
2. The undisputed facts are that one Sri H Gopal Krishna was granted the approval for establishment of a Wind Power Project with the capacity of 20 MW in Telaginahatti, Garr, Hoskote, Belgaum District. The approval was granted on 28.12.2007. The said Sri H Gopal Krishna had signed an agreement dated 30.04.2008. However, the project was not implemented by him and at that stage, the petitioner had sought for transfer of the said approval in its favour with an increased capacity of 49.3.MW. The respondent-Government has considered this aspect and through the order dated 01.04.2015 granted permission for transfer of the approval granted to of Sri H Gopal Krishna in favour of the petitioner herein with an increased capacity to 49.3 MW. In the said order, Conditions No.3 and 4 were also incorporated. The present grievance is only with regard to the said Conditions imposed in the order.
3. The case on behalf of the petitioner is that the respondent-Government through its Corrigendum dated 18.07.2011, in exercise of para 24 of the Karnataka Renewable Energy Policy, 2009-2014, has indicated the time limit for project completion. The time limit as provided is from Stage-I to Stage-IV depending on which the project has progressed. In that view, the contention insofar as the petitioner is concerned is that the project is approved in their favour on 01.04.2015 and if the time limit for completion of the project is taken into consideration from the said date, the time frame as provided in the Corrigendum dated 18.07.2011 would be applicable and in that view, the Conditions as imposed for payment of the amount and the extension of time as made therein would not be justified. It is in that light, the petitioner is before this Court assailing the said Conditions as also imposition of the amount for the extended period.
4. The respondents have filed their objection statement.
The contention urged is that, the petitioner’s case cannot be considered as a grant of fresh approval with effect from 01.04.2015 insofar as 20 MW, since it had been earlier approved in favour of Sri Gopal Krishna. It is contended that in such circumstance, when the request of the petitioner has been considered to transfer the approval, which had been granted in favour of Sri Gopal Krishna, to the petitioner, the time frame which had been originally indicated to the extent of 20 MW, the time frame as initially granted will have to be taken into consideration and accordingly, Conditions No.3 and 4 have been incorporated in the Government Order dated 01.04.2015. It is, therefore, contended that the petitioner cannot pick and choose the Conditions which are only beneficial to them, but the entire consideration as a whole is required to be made and if that be so, the time frame as indicated in the Corrigendum dated 18.07.2011 would not be applicable to the case of the petitioner to the extent of 20 MW.
5. In the light of the contentions, having heard the learned counsel for the parties as also the learned Government Advocate, I have perused the petition papers.
6. The Corrigendum dated 18.07.2011 as at Annexure-D relied on by the petitioner no doubt provides for the time frame for completion of the project in the manner as indicated from Stage-I to Stage-IV. If the project was approved in favour of the petitioner as a new project with effect from 01.04.2015, there can be no doubt that the time frame as indicated would have been applicable insofar as the grant of time limit for completion of the project. However, in the instant case, as already noticed, the admitted facts would reveal that insofar as the Wind Power Project to the extent of 20 MW, it was approved in favour of Sri H Gopal Krishna as far back as on 28.12.2007 and the agreement was also entered into between the said Sri H Gopal Krishna and the Government on 30.04.2008. In that circumstance, a closer perusal of the order dated 01.04.2005 would indicate that the approval order would refer to the project which had been approved in favour of Sri H Gopal Krishna to the extent of 20 MW and the transfer of the same, but with an increased capacity to 49.3 MW. Such transfer is subject to the Conditions as indicated therein. A reference to Condition No.3 thereon would indicate that the extension of time as granted therein is in respect of the capacity of 20 MW and it is indicated that the project has to be completed before 01.01.2017. A perusal of the same would indicate that the extension as granted is keeping in view that the project of 20 MW had been approved in favour of Sri H Gopal Krishna and if that be the position, the Conditions imposed would indicate that it has been made after properly applying the mind and considering the fact that an earlier approved project was being transferred to the name of the petitioner. Therefore, the case of the petitioner that the Corrigendum dated 18.07.2011 would be applicable to it in respect of the project to the extent of 20 MW also cannot be accepted by this Court. Therefore, if the said aspect is kept in view, Conditions No.3 and 4 in the order dated 01.04.2015 is perfectly justified and does not call for interference by this Court when the project is transferred to the said extent and with an increased capacity. Therefore, the challenge to the Conditions contained in the order dated 01.04.2015 does not arise.
7. Insofar as the quantum of amount as demanded through the communication dated 25.05.2015, the learned counsel for the petitioner would contend that even if the charges were to be applied, a sum of Rs.67,41,600/- as demanded by way of extension fee for 20 MW would not be justified. In that regard, when the power of the respondents to charge the extension fee has been upheld by this Court, the only consideration that is required to be made by the respondents is as to whether the calculation of the amount is in terms of the Government Orders/Circulars. To that extent if there is any discrepancy, the petitioner is granted liberty to point out the discrepancy, if any, to the respondents and in that light an examination would be made by the respondents before recovering the said amount and while so examining, if it is found that any lesser amount is payable by the petitioner, the same may be informed and thereafter be recovered.
8. Insofar as further extension of time, since the original period as indicated in the order dated 01.04.2015 has elapsed at this point of time if the petitioner has not completed the project, I do not find it appropriate to advert to that aspect of the matter in this petition, as it is the matter to be considered by the respondents at the out set and if any grievance arises subsequently, the same can only be urged by the petitioner in an appropriate proceeding. Hence, to the said extent, the issue is left open.
9. In view of the above, the order impugned or the Conditions as assailed do not call for interference in this petition. The petition is accordingly disposed of.
Sd/- JUDGE mv