Karnataka High CourtAadyaarush Power Projects Pvt . Ltd., vs State Of Karnataka on 20 September, 2021Author:M.NagaprasannaBench:M. Nagaprasanna1\n\n\n\n     IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n      DATED THIS THE 20TH DAY OF SEPTEMBER, 2021      R\n                       BEFORE\n\n       THE HON'BLE MR. JUSTICE M. NAGAPRASANNA\n\n         WRIT PETITION No.52028/2018 (GM-KEB)\n                         C/W\n         WRIT PETITION No.57898/2017 (GM-KEB)\n         WRIT PETITION No.30716/2018 (GM-KEB)\n         WRIT PETITION No.7358/2020 (GM-KEB)\n         WRIT PETITION No.7675/2020 (GM-KEB)\n         WRIT PETITION No.7698/2020 (GM-KEB)\n         WRIT PETITION No.7724/2020 (GM-KEB)\n         WRIT PETITION No.7782/2020 (GM-KEB)\n         WRIT PETITION No.7930/2020 (GM-KEB)\n         WRIT PETITION No.12611/2020 (GM-KEB)\n         WRIT PETITION No.12637/2020 (GM-KEB)\n         WRIT PETITION No.12644/2020 (GM-KEB)\n\nIN WRIT PETITION No.52028/2018\n\nBETWEEN:\n\nAADYAARUSH POWER PROJECTS PVT. LTD.,\nA COMPANY REGISTERED UNDER COMPANIES ACT,2013,\nHAVING ITS REGISTERED OFFICE AT 139/12,\n5TH MAIN ROAD, CHAMRAJPET,\nBENGALURU - 560 018\nREPRESENTED BY ITS DIRECTOR,\nMR. AMARTHYA RAJASHEKARAPPA.\n                                     ... PETITIONER\n(BY SRI MANMOHAN P.N., ADVOCATE )\n\nAND:\n\n1.     STATE OF KARNATAKA\n       DEPARTMENT OF ENERGY,\n                         2\n\n\n\n     VIKASA SOUDHA,\n     DR.B.R.AMBEDKAR STREET,\n     BENGALURU - 560 001\n     REPRESENTED BY ITS\n     CHIEF SECRETARY.\n\n2.   BANGALORE ELECTRICITY SUPPLY\n     COMPANY LTD.,\n     A COMPANY REGISTERED UNDER\n     COMPANIES ACT, 1956,\n     HAVING ITS REGISTERED OFFICE AT\n     K.R.ROAD, BENGALURU - 560 001\n     REPRESENTED BY ITS\n     MANAGING DIRECTOR.\n\n3.   KARNATAKA RENEWABLE ENERGY\n     DEVELOPMENT LTD.,\n     A COMPANY REGISTERED UNDER\n     COMPANIES ACT, 1956,\n     HAVING ITS REGISTERED OFFICE\n     AT NO.39, SHANTHIGRUHA,\n     BHARATH SCOUTS & GUIDES BUILDING,\n     PALACE ROAD, GANDHI NAGAR,\n     BENGALURU - 560 001\n     REPRESENTED BY ITS\n     MANAGING DIRECTOR.\n\n4.   KARNATAKA POWER\n     TRANSMISSION CORPORATION LTD.,\n     A COMPANY REGISTERED UNDER\n     COMPANIES ACT, 1956,\n     HAVING ITS REGISTERED OFFICE\n     AT KAVERI BHAVAN, K.G.ROAD,\n     BENGALURU - 560 009\n     REPRESENTED BY ITS\n     MANAGING DIRECTOR.\n\n5.   KARNATAKA ELECTRICITY\n     REGULATORY COMMISSION\n     NO.16, C-1, MILLERS TANK BED AREA,\n                           3\n\n\n\n     VASANTH NAGAR,\n     BENGALURU - 560 052\n     REPRESENTED BY ITS SECRETARY.\n                                 ... RESPONDENTS\n\n(BY SMT.M.C.NAGASHREE, AGA FOR R1;\n    SRI S.SRIRANGA, ADVOCATE FOR R2;\n    SRI B.N.PRAKASH, ADVOCATE FOR R5;\n    NOTICE TO R3 & 4 DISPENSED WITH VIDE ORDER\n    DATED 06/12/2018)\n\n     THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nISSUE A WRIT OF CERTIORARY AND QUASH THE\nCOMMUNICATION DATED 16.3.2017 ISSUED BY R-5 AT\nANNEX-S; ISSUE A WRIT OF CERTIORARY AND QUASH\nTHE COMMUNICATION DATED 05.04.2017 ISSUED BY R-5\nAT ANNEX-T;\n\nIN WRIT PETITION No.57898/2017\n\nBETWEEN:\n\n1.   SRI H.V.THIMMAIAH\n     S/O LATE VEERAPPA\n     AGED ABOUT 72 YEARS\n     NO.76, HARIABBE, HIRIYUR TALUK,\n     CHITRADURGA DISTRICT - 577 598.\n\n2.   M/S B.G.SUN SOLAR HIRIYUR PRIVATE LIMITED\n     HAVING ITS REGISTERED OFFICE AT\n     NO.368, 2ND MAIN, BEML LAYOUT\n     1ST STAGE, BASAVESHWARANAGAR\n     BENGALURU - 560 079\n     REPRESENTED BY ITS DIRECTOR\n     MR.V.G.ANGADI.\n                                    ... PETITIONERS\n\n(BY SRI SUNIL P.P., ADVOCATE)\n                          4\n\n\n\nAND:\n\n1.     THE STATE OF KARNATAKA,\n       REPRESENTED BY\n       THE ADDITIONAL CHIEF SECRETARY\n       ENERGY DEPARTMENT\n       VIKASASOUDHA,\n       BENGALURU - 560 001.\n\n2.     KARNATAKA ELECTRICITY REGULATORY\n       COMMISSION\n       6TH & 7TH FLOOR, MAHALAKSHMI CHAMBERS\n       NO.9/2. M.G.ROAD\n       BENGALURU - 560 001\n       REPRESENTED BY ITS SECRETARY.\n\n3.     THE KARNATAKA RENEWABLE ENERGY\n       DEPARTMENT LTD.,\n       NO.39, "SHANTHIGRUHA"\n       BHARATH SCOUTS &\n       GUIDES BUILDING\n       OPP.: THE CHIEF\n       POST MASTER GENERAL OFFICE\n       PALACE ROAD,\n       BENGALURU - 560 001\n       REPRESENTED BY THIS\n       MANAGING DIRECTOR.\n\n4.     BENGALURU ELECTRICITY SUPPLY\n       COMPANY LIMITED,\n       A COMPANY REGISTERED\n       UNDER THE PROVISIONS OF\n       COMPANIES ACT, 1956 HAVING ITS\n       REGISTERED OFFICE AT K.R.CIRCLE ,\n       BENGALURU - 560 001\n       REPRESENTED BY ITS MANAGING DIRECTOR.\n\n5.     THE GENERAL MANAGER (ELE)\n       POWER PURCHASE, BESCOM\n                         5\n\n\n\n     K.R.CIRCLE\n     BENGALURU - 560 001.\n\n6.   THE CHIEF ENGINEER ELECTY.\n     TRANSMISSION ZONE, KPTCL\n     SIDDAGANGA COMPLEX , BH ROAD\n     TUMAKURU - 527 107.\n\n7.   THE EXECUTIVE ENGINEER\n     220 KV SRS, KPTCL,\n     HIRIYUR - 577 598.\n                                   ... RESPONDENTS\n\n(BY SMT.M.C.NAGASHREE, AGA FOR R1;\n    SRI B.N.PRAKASH, ADVOCATE FOR R2;\n    SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;\n    SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R4, R6 & 7;\n    R-5 SERVED)\n\n     THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE COMMUNICATION/LETTER DTD 07.07.2017\nAT ANNX-Z, ISSUED BY THE R-2; QUASH THE\nCOMMUNICATION/LETTER DTD 01.08.2017, ISSUED BY\nTHE R-1 VIDE ANNEXURE-Z1.\n\nIN WRIT PETITION No.30716/2018\n\nBETWEEN:\n\nM/S S.G.ARAKERI SOLAR POWER\nPRIVATE LIMITED\nHAVING ITS REGISTERED\nOFFICE AT:NO.658/8, 2ND FLOOR,\n1ST "C" MAIN ROAD,\n40TH CROSS, 8TH BLOCK,\nJAYANAGARA, BENGALURU - 560 082\nREPRESENTED BY ITS DIRECTOR\nSRI ISHWAR HEGDE.\n                                      ... PETITIONER\n                          6\n\n\n\n(BY SRI GANAPATI BHAT VAJRALLI, ADVOCATE)\n\nAND:\n\n1.     THE STATE OF KARNATAKA\n       REPRESENTED BY ITS CHIEF SECRETARY,\n       ROOM NO.320,3RD FLOOR,\n       VIDHANA SOUDHA,\n       DR AMBEDKAR VEEDI,\n       BENGALURU-560 001\n\n2.     THE ADDITIONAL CHIEF SECRETARY\n       GOVERNMENT OF KARNATAKA,\n       ENERGY DEPARTMENT,\n       ROOM NO.236, 2ND FLOOR,\n       VIKASA SOUDHA,\n       DR AMBEDKAR VEEDI\n       BENGALURU - 560 001.\n\n3.     KARNATAKA ELECTRICITY\n       REGULATORY COMMISSION\n       NO.16, C-1, MILLERS BED AREA,\n       VASANTHNAGAR,\n       BENGALURU - 560 052\n       REPRESENTED BY ITS CHAIRMAN.\n\n4.     M/S HUBLI ELECTRICITY SUPPLY\n       COMPANY LIMITED (HESCOM)\n       OFFICE AT:NAVANAGAR, P.B.ROAD,\n       HUBBALLI - 580 025\n       REPRESENTED BY ITS\n       MANAGING DIRECTOR.\n\n5.     M/S KARNATAKA RENEWABLE ENERGY\n       DEVELOPMENT LIMITED,\n       NO.39,"SHANTHIGRUHA"\n       BHARATH SCOUTS AND GUIDES\n       BUILDING, PALACE ROAD,\n       BENGALURU - 560 003.\n                                  ... RESPONDENTS\n                           7\n\n\n\n(BY SMT.M.C.NAGASHREE, AGA FOR R1 AND R2;\n    SRI B.N.PRAKASH, ADVOCATE FOR R3;\n    SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R4;\n    SRI MURUGESH V.CHARATI, ADVOCATE FOR R5)\n\n     THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED DIRECTION DATED 05.04.2017,\nISSUED BY THE 3RD RESPONDENT, AS PER ANNEXURE-Q\nAND LETTER DATED 07.07.2017, ISSUED BY THE 3RD\nRESPONDENT AS PER ANNEXURE-T AND ETC.,\n\nIN WRIT PETITION No.7358/2020\n\nBETWEEN:\n\nM/S SAAKESHA SOLAR ENERGY PRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082,\nREPRESENTED BY ITS DIRECTOR,\nSRI ISHWAR HEGDE.\n                                         ... PETITIONER\n\n(BY SRI GANAPATI BHAT VAJRALLI, ADVOCATE)\n\nAND:\n\n1.     M/S BANGALORE ELECTRICITY SUPPLY\n       COMPANY LIMITED (BESCOM)\n       OFFICE AT K.R.CIRCLE,\n       BENGALURU - 560 001,\n       REPRESENTED BY ITS\n       MANAGING DIRECTOR.\n\n2.     KARNATAKA POWER TRANSMISSION\n       CORPORATION LIMITED\n       CAVERI BHAVAN,\n       BENGALURU - 560 001,\n                         8\n\n\n\n     REPRESENTED BY ITS\n     MANAGING DIRECTOR.\n\n3.   THE KREDL\n     SHANTHI GRUHA, NO.39,\n     BHARATH SCOUTS AND\n     GUIDES BUILDING,\n     OPPOSITE THE CHIEF\n     POST MASTER GENERAL OFFICE,\n     PALACE ROAD, BENGALURU - 560 001.\n\n4.   THE DEPUTY COMMISSIONER\n     DISTRICT ADMINISTRATIVE BHAVAN,\n     SHIDLAGATTA ROAD,\n     CHIKKABALLAPUR - 562 101.\n\n5.   KARNATAKA ELECTRICITY\n     REGULATORY COMMISSION\n     NO.16, C-1, MILLARS BED AREA,\n     VASANTHNAGAR,\n     BENGALURU - 560 052,\n     REPRESENTED BY ITS CHAIRMAN.\n\n                                     ... RESPONDENTS\n\n(BY SRI S.SRIRANGA, ADVOCATE FOR R1 AND R2;\n    SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;\n    SMT.M.C.NAGASHREE, AGA FOR R4;\n    SRI B.N.PRAKASH, ADVOCATE FOR R5)\n\n     THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DATED 30.08.2018 IN\nO.P.NO.161/2017 PASSED BY THE R-5 AS PER\nANNEXURE-H AND ALLOW THE O.P.NO.161/2017 BY\nGRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n                         9\n\n\n\nIN WRIT PETITION No.7675/2020\n\nBETWEEN:\n\nM/S GAVI RANGA SOLARS PRIVATE LIMITED\nHAVING ITS REGISTERED\nOFFICE AT NO.658/8,\n2ND FLOOR, F, 2ND 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK,\nJAYANAGAR,\nBENGALURU - 560 082,\nREPRESENTED BY ITS DIRECTOR,\nSRI ISHWAR HEGDE.\n                                     ... PETITIONER\n(BY SRI GANAPATHY BHAT VAJRALLI, ADVOCATE\n    (PHYSICAL HEARING))\n\nAND:\n\n1.     M/S CHAMUNDESHWARI ELECTRICITY SUPPLY\n       CORPORATION LIMITED (CESC, MYSORE),\n       NO.29, VIJAYANAGAR 2ND STAGE,\n       HINKAL, MYSURU - 570 017\n       REPRESENTED BY ITS\n       GENERAL MANAGER (COMMERCIAL)\n\n2.     M/S BANGALORE ELECTRICITY SUPPLY\n       COMPANY LIMITED (BESCOM),\n       OFFICE AT: K.R.CIRCLE,\n       BENGALURU - 560 001,\n       REPRESENTED BY ITS\n       MANAGING DIRECTOR.\n\n3.     KARNATAKA POWER TRANSMISSION\n       CORPORATION LIMITED\n       CAVERI BHAVAN,\n       BENGALURU - 560 001,\n       REPRESENTED BY ITS\n       MANAGING DIRECTOR.\n                         10\n\n\n\n4.   THE KREDL\n     SHANTHI GRUHA, NO.39,\n     BHARATH SCOUTS AND\n     GUIDES BUILDING,\n     OPPOSITE THE CHIEF\n     POST MASTER GENERAL OFFICE,\n     PALACE ROAD, BENGALURU - 560 001\n     REPRESENTED BY\n      ITS MANAGING DIRECTOR.\n\n5.   KARNATAKA ELECTRICITY REGULATORY\n     COMMISSION\n     NO.16, C-1, MILLERS BED\n     AREA, VASANTHNAGAR,\n     BENGALURU-560 052,\n     REPRESENTED BY ITS CHAIRMAN.\n\n6.   THE DEPUTY COMMISSIONER\n     DISTRICT ADMINISTRATIVE BHAVAN,\n     SHIDLAGATTA ROAD,\n     CHIKKABALLAPUR-562101.\n                                  ... RESPONDENTS\n\n(BY SRI S.SRIRANGA, ADVOCATE FOR R1.\n    R2 & R3 ARE SERVED\n    SRI.MURUGESH V.CHARATI, ADVOCATE FOR R4;\n    SRI B.N.PRAKASH, ADVOCATE FOR R5;\n    SMT.M.C.NAGASHREE, AGA FOR R6 (PHYSICAL\n    HEARING))\n\n     THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DTD.28.8.2018 IN\nO.P.NO.163/2017 PASSED BY THE R-5 AS PER\nANENXURE-H AND ALLOW THE O.P.NO.163/2017 BY\nGRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n                           11\n\n\n\nIN WRIT PETITION No.7698/2020\n\nBETWEEN:\n\nM/S LRK SOLAR POWER PRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082\nREPRESENTED BY ITS DIRECTOR\nSRI ISHWAR HEGDE.\n                                         ... PETITIONER\n(BY SRI GANAPATHI BHAT VAJRALLI, ADVOCATE)\n\nAND:\n\n1.     M/S. BANGALORE ELECTRICITY SUPPLY\n       COMPANY LIMITED (BESCOM)\n       OFFICE AT K.R.CIRCLE,\n       BENGALURU - 560 001.\n       REPRESENTED BY ITS MANAGIR DIRECTOR\n\n2.     KARNATAKA POWER TRANSMISSION\n       CORPORATION LIMITED\n       CAVERI BHAVAN, BENGALURU - 560 001\n       REPRESENTED BY ITS MANAGING DIRECTOR.\n\n3.     THE KREDL\n       SHANTHI GRUHA, NO.39,\n       BHARATH SCOUTS AND GUIDES BUILDING,\n       OPPOSITE THE CHIEF POST MASTER\n       GENERAL OFFICE,\n       PALACE ROAD, BENGALURU - 560 001.\n\n4.     THE DEPUTY COMMISSIONER\n       DISTRICT ADMINISTRATIVE BHAVAN,\n       SHIDLAGATTA ROAD,\n       CHIKKABALLAPUR - 562 101.\n                           12\n\n\n\n5.     KARNATAKA ELECTRICITY REGULATORY\n       COMMISSION\n       NO.16, C-1, MILLERS BED AREA,\n       VASANTHNAGAR,\n       BENGALURU - 560 052\n       REPRESENTED BY ITS CHAIRMAN.\n                                     ... RESPONDENTS\n\n(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 & R2;\n    SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;\n    SMT.M.C.NAGASHREE, AGA FOR R4;\n    SRI B.N.PRAKSH, ADVOCATE FOR R5)\n\n     THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DATED 27.09.2018 IN\nO.P.NO.165/2017 PASSED BY THE R-5 AS PER\nANNEXURE-H AND ALLOW THE O.P.NO.165/2017 BY\nGRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n\nIN WRIT PETITION No.7724/2020\n\nBETWEEN:\n\nM/S MNR SOLAR ENERGY PRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082,\nREPRESENTED BY ITS DIRECTOR,\nSRI.ISHWAR HEGDE.\n                                         ... PETITIONER\n\n(BY SRI GANAPATI BHAT VAJRALLI, ADVOCATE)\n\nAND:\n\n1.     M/S BANGALORE ELECTRICITY SUPPLY\n       COMPANY LIMITED (BESCOM)\n                          13\n\n\n\n     OFFICE AT: K.R.CIRCLE,\n     BENGALURU - 560 001,\n     REPRESENTED BY ITS\n     MANAGING DIRECTOR.\n\n2.   KARNATAKA POWER\n     TRANSMISSION CORPORATION LIMITED\n     CAVERI BHAVAN,\n     BENGALURU - 560 001,\n     REPRESENTED BY ITS\n     MANAGING DIRECTOR.\n\n3.   THE KREDL\n     SHANTHI GRUHA, NO.39,\n     BHARATH SCOUTS AND\n     GUIDES BUILDING,\n     OPPOSITE THE CHIEF POST\n     MASTER GENERAL OFFICE,\n     PALACE ROAD, BENGALURU - 560 001.\n\n4.   THE DEPUTY COMMISSIONER\n     DISTRICT ADMINISTRATIVE BHAVAN,\n     SHIDLAGATTA ROAD,\n     CHIKKABALLAPUR - 562 101.\n\n5.   KARNATAKA ELECTRICITY\n     REGULATORY COMMISSION\n     NO.16, C-1, MILLERS BED AREA,\n     VASANTHNAGAR,\n     BENGALURU-560 052,\n     REPRESENTED BY ITS CHAIRMAN.\n\n                                     ... RESPONDENTS\n\n(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 AND R2;\n    SRI MURUGESH V.CHARATI, ADVOCATE FOR R3\n    SMT.M.C.NAGASHREE, AGA FOR R4;\n    SRI B.N.PRAKASH, ADVOCATE FOR R5)\n                           14\n\n\n\n     THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DATED 21.08.2018 IN\nO.P.NO.158/2017 PASSED BY THE R-5 AS PER\nANNEXURE-H AND ALLOW THE OP NO.158/2017 BY\nGRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n\nIN WRIT PETITION No.7782/2020\n\nBETWEEN:\n\nM/S NADAGOUDA ENERGIES PRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082\nREPRESENTED BY DIRECTOR\nSRI ISHWAR HEGDE.\n                                         ... PETITIONER\n(BY SRI GANAPATI BHAT VAJRALLI, ADVOCATE)\n\nAND:\n\n1.     M/S. HUBLI ELECTRICITY SUPPLY COMPANY\n       LIMITED (HESCOM)\n       OFFICE AT NAVANAGAR, HUBLI - 580 025\n       REPRESENTED BY ITS\n       MANAGING DIRECTOR.\n\n2.     KARNATAKA POWER TRANSMISSION CORPORATION\n       LIMITED\n       CAVERI BHAVAN, BENGALURU - 560 001\n       REP BY ITS MANAGING DIRECTOR\n\n3.     THE KREDL\n       SHANTHI GRUHA NO.39,\n       BHARATH SCOUTS AND GUIDES BUILDING,\n       OPPOSITE THE CHIEF POST MASTER GENERAL\n       OFFICE,\n                           15\n\n\n\n     PALACE ROAD, BENGALURU - 560 001.\n\n4.   THE DEPUTY COMMISSIONER\n     DISTRICT ADMINISTRATIVE BHAVAN,\n     SHIDLAGATTA ROAD,\n     CHIKABALLAPUR-562 101\n\n5.   KARNATAKA ELECTRICITY REGULATORY\n     COMMISSION\n     NO.16, C-1, MILLERS BED AREA,\n     VASANTHNAGAR,\n     BENGALURU-560 052\n     REPRESENTED BY ITS\n     CHAIRMAN.\n\n                                      ... RESPONDENTS\n\n(BY SRI HOMESH KIRAN N., ADVOCATE FOR R1 AND R2;\n    SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;\n    SMT.M.C.NAGASHREE, AGA FOR R4;\n    R5 SERVED))\n\n     THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DTD.25.9.2018 IN\nO.P.NO.155/2017 PASSED BY THE R-5 AS PER\nANNEXURE-H AND ALLOW THE O.P.NO.155/2017 BY\nGRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n\nIN WRIT PETITION No.7930/2020\n\nBETWEEN:\n\nM/S CHOWDESHWARI SOLAR ENERGY\nPRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082,\n                           16\n\n\n\nREPRESENTED BY ITS DIRECTOR,\nSRI.ISHWAR HEGDE.\n                                         ... PETITIONER\n(BY SRI GANAPATHI BHAT VAJRALLI, ADVOCATE)\nAND:\n\n1.     M/S BANGALORE ELECTRICITY SUPPLY\n       COMPANY LIMITED (BESCOM)\n       OFFICE AT: K.R.CIRCLE,\n       BENGALURU - 560 001,\n       REPRESENTED BY ITS\n       MANAGING DIRECTOR.\n\n2.     KARNATAKA POWER TRANSMISSION\n       CORPORATION LIMITED\n       CAVERI BHAVAN, BENGALURU - 560 001,\n       REPRESENTED BY ITS\n       MANAGING DIRECTOR.\n\n3.     THE KREDL\n       SHANTHI GRUHA, NO.39,\n       BHARATH SCOUTS AND GUIDES BUILDING,\n       OPPOSITE THE CHIEF POST MASTER GENERAL\n       OFFICE, PALACE ROAD,\n       BENGALURU - 560 001.\n       REPRESENTED BY ITS MANAGING DIRECTOR.\n\n4.     THE DEPUTY COMMISSIONER\n       DISTRICT ADMINISTRATIVE BHAVAN,\n       SHIDLAGATTA ROAD,\n       CHIKKABALLAPUR - 562 101\n\n5.     KARNATAKA ELECTRICITY\n       REGULATORY COMMISSION\n       NO.16, C-1, MILLAES BED AREA,\n       VASANTHNAGAR,\n       BENGALURU-560 052,\n       REPRESENTED BY ITS CHAIRMAN\n                                       ... RESPONDENTS\n                           17\n\n\n\n(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 AND R2;\n    SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;\n    SMT.M.C.NAGASHREE, AGA FOR R4;\n    SRI B.N.PRAKASH, ADVOCATE FOR R5)\n\n     THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DATED 28.08.2018 IN\nO.P.NO.164/2017 PASSED BY THE R-5 AS PER\nANNEXURE-H AND ALLOW THE OP.NO.164/2017 BY\nGRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n\nIN WRIT PETITION No.12611/2020\n\nBETWEEN:\n\nM/S. LPD SOLAR POWER PRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082\nREPRESENTED BY ITS DIRECTOR\nSRI.ISHWAR HEGDE.\n                                         ... PETITIONER\n\n(BY SRI GANAPATHI BHAT VAJRALLI, ADVOCATE)\n\nAND:\n\n1.     M/S BANGALORE ELECTRICITY SUPPLY COMPANY\n       LIMITED (BESCOM)\n       OFFICE AT K.R.CIRCLE,\n       BENGALURU - 560 001\n       REPRESENTED BY ITS\n       MANAGIANG DIRECTOR.\n\n2.     KARNATAKA POWER TRANSMISSION\n       CORPORATION LTD.,\n       CAVERI BHAVAN, BENGALURU - 560 001\n                         18\n\n\n\n     REPRESENTED BY\n     ITS MANAGING DIRECTOR.\n\n3.   THE KREDL\n     SHANTHI GRUHA, NO.39,\n     BHARATH SCOUTS AND GUIDES BUILDING,\n     OPPOSITE THE CHIEF POST MASTER\n     GENERAL OFFICE,\n     PALACE ROAD, BENGALURU - 560 001.\n\n4.   THE DEPUTY COMMISSIONER\n     DISTRICT ADMINISTRATIVE BHAVAN,\n     SHIDLAGATTA ROAD,\n     CHIKKABALLAPUR - 562 101.\n\n5.   KARNATAKA ELECTRICITY\n     REGULATORY COMMISSION\n     NO.16, C-1, MILLERS BED AREA,\n     VASANTHNAGAR,\n     BENGALURU - 560 052\n     REPRESENTED BY ITS CHAIRMAN.\n                                     ... RESPONDENTS\n\n(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 AND R2;\n    SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;\n    SMT.M.C.NAGASHREE, AGA FOR R4;\n    SRI B.N.PRAKASH, ADVOCATE FOR R5)\n\n     THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DATED 27.09.2018 IN\nO.P.NO.166/2017 PASSED BY THE R-5 AS PER\nANNEXURE-H AND ALLOW THE O.P.NO.166/2017 BY\nGRANTING AN AMOUNT OF RS.8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n                           19\n\n\n\nIN WRIT PETITION No.12637/2020\n\nBETWEEN:\n\nM/S SRI UGRAPPA SOLAR PRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082,\nREPRESENTED BY ITS DIRECTOR,\nSRI ISHWAR HEGDE.\n                                         ... PETITIONER\n(BY SRI GANAPATHI BHAT VAJRALLI, ADVOCATE)\n\nAND:\n\n1.     M/S BANGALORE ELECTRICITY SUPPLY\n       COMPANY LIMITED (BESCOM)\n       OFFICE AT: K.R.CIRCLE,\n       BENGALURU - 560 001,\n       REPRESENTED BY ITS\n       MANAGING DIRECTOR.\n\n2.     KARNATAKA POWER TRANSMISSION\n       CORPORATION LIMITED\n       CAVERI BHAVAN,\n       BENGALURU - 560 009,\n       REPRESENTED BY ITS\n       MANAGING DIRECTOR.\n\n3.     THE KREDL\n       SHANTHI GRUHA, NO.39,\n       BHARATH SCOUTS AND\n       GUIDES BUILDING,\n       OPPOSITE THE CHIEF\n       POST MASTER GENERAL OFFICE,\n       PALACE ROAD,\n       BENGALURU - 560 001.\n                           20\n\n\n\n4.   DEPUTY COMMISSIONER\n     DISTRICT ADMINISTRATIVE BHAVAN,\n     SHIDLAGATTA ROAD,\n     CHIKKABALLAPUR - 562 101.\n\n5.   KARNATAKA ELECTRICITY\n     REGULATORY COMMISSION\n     NO.16, C-1, MILLERS BED AREA,\n     VASANTHNAGAR,\n     BENGALURU - 560 052,\n     REPRESENTED BY ITS CHAIRMAN.\n                                      ... RESPONDENTS\n\n(BY SRI SHAHBAAZ HUSAIN, ADVOCATE FOR R1 & R2;\n    SRIMURUGESH V.CHARATI, ADVOCATE FOR R3;\n    SMT.M.C.NAGASHREE, AGA FOR R4\n    SRI B.N.PRAKASH, ADVOCATE FOR R5)\n\n     THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DATED 29.05.2018 IN\nO.P.NO.148/2017 PASSED BY THE R-5, AS PER\nANNEXURE-H AND ALLOW THE O.P. NO. 148/2017 BY\nGRANTING AN AMOUNT OF RS 8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n\nIN WRIT PETITION No.12644/2020\n\nBETWEEN:\n\nM/S POORVAJ SOLAR ENERGY PRIVATE LIMITED\nHAVING ITS REGISTERED OFFICE AT:\nNO.658/8, 2ND FLOOR, F, 1ST 'C' MAIN ROAD,\n40TH CROSS, 8TH BLOCK, JAYANAGAR,\nBENGALURU - 560 082\nREPRESENTED BY ITS DIRECTOR\nSRI ISHWAR HEGDE.\n                                         ... PETITIONER\n(BY SRI GANAPATHY BHAT VAJRALLI, ADVOCATE)\n                           21\n\n\n\nAND:\n\n1.     M/S. BANGALORE ELECTRICITY\n       SUPPLY COMPANY LIMITED (BESCOM)\n       OFFICE AT: K.R.CIRCLE,\n       BENGALURU - 560 001\n       REPRESENTED BY\n       MANAGING DIRECTOR.\n\n2.     KARNATAKA POWER TRANSMISSION\n       CORPORATION LIMITED\n       CAVERI BHAVAN,\n       BENGALURU - 560 009\n       REPRESENTED BY\n       MANAGING DIRECTOR.\n\n\n3.     THE KREDL\n       SHANTHI GRUHA, NO.39,\n       BHARATH SCOUTS AND GUIDES BUILDING,\n       OPPOSITE THE CHIEF POST MASTER\n       GENERAL OFFICE,\n       PALACE ROAD, BENGALURU - 560 001\n       REPRESENTED BY ITS MANAGING DIRECTOR.\n\n4.     THE DEPUTY COMMISSIONER\n       DISTRICT ADMINISTRATIVE BHAVAN,\n       SHIDLAGATTA ROAD,\n       CHIKKABALLAPUR - 562 101.\n\n5.     KARNATAKA ELECTRICITY\n       REGULATORY COMMISSION\n       NO.16, C-1, MILLERS BED AREA,\n       VASANTHNAGAR,\n       BENGALURU - 560 052\n       REPRESENTED BY CHAIRMAN.\n                                       ... RESPONDENTS\n\n(BY SRI SHAHBAAZ HUSAIN, ADVOCATE R1 AND R2\n    SRI MURUGESH V.CHARATI, ADVOCATE FOR R3;\n                               22\n\n\n\n      SMT.M.C.NAGASHREE, AGA FOR R4;\n      SRI B.N.PRAKASH, ADVOCATE FOR R5)\n\n     THIS WRIT PETITION IS FILED UNDERARTICLES 226AND227OF THE CONSTITUTION OF INDIA PRAYING TO\nQUASH THE IMPUGNED ORDER DATED 28.08.2018 IN\nO.P.NO.167/2017 PASSED BY THE R-5, AS PER\nANNEXURE-H AND ALLOW THE O.P. NP. 167/2017 BY\nGRANTING AN AMOUNT OF RS 8.40/- PER UNIT AS PER\nTHE PPA AND ETC.,\n\n\n     THESE WRIT PETITIONS HAVING BEEN HEARD AND\nRESERVED FOR ORDERS ON 24.06.2021, COMING ON\nFOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE\nFOLLOWING :-\n                             ORDERAssemblage of these petitions raise a challenge to\n\nthe     order   passed   by    the   Karnataka   Electricity\n\nRegulatory Commission1 in rejecting Original Petition\n\nNo.214 of 2017 filed before it by the petitioners and\n\ndirecting that the petitioners shall be entitled to a\n\nparticular tariff.   Since facts are common in all these\n\npetitions, facts obtaining in Writ Petition No.52028 of\n\n2018 are referred to in this order for the sake of\n\nconvenience.1   'Commission' for short232.   Succinctly    stated,   the   facts   germane   for\n\nconsideration of the lis are as follows:-Government        of   Karnataka      on    22-05-2014\n\nintroduced a solar policy to be availed between 2014\n\nand 2021 with the object of harnessing the potential of\n\nsolar resources in the State. In furtherance of the policy\n\nof the State, Karnataka Renewable Energy Development\n\nLimited2        issued     a    notification   inviting   online\n\napplications for facilitating development of renewable\n\nenergy on 09.10.2014. The petitioners, in all these\n\ncases, applied pursuant to the notification issued by\n\nKREDL. In Writ Petition No.52028 of 2018, a letter of\n\naward was issued in favour of one Sri Bommappa\n\nKenchikoppa for development of two megawatts (mw)\n\nsolar power plant by a letter of award dated 16.03.2015.Before the plant could be commissioned and even the\n\nprocess of harnessing solar resources to begin, the2'KREDL' for short24holder of award died bequeathing his entire property in\n\nfavour of his grandson, the petitioner herein.3. On 26.08.2015, a power purchase agreement\n\nwas entered into between the petitioner and the\n\nBangalore Electric Supply Company Limited3 ('BESCOM'\n\nfor short). The power purchase agreement so entered\n\ninto between the petitioner and BESCOM was approved\n\nby the Commission on 01.09.2015 pursuant to which,\n\nthe petitioner applied to KPTCL for evacuation approval\n\non 05.08.2016. Pending such approval, the petitioner\n\nalso     applied    before    the       Deputy   Commissioner,\n\nDavangere for conversion of land in Sy.No.67 measuring\n\n10 acres for the purpose. After submission of such\n\napplication for conversion KPTCL issued an order of\n\napproval of        temporary evacuation on payment of\n\nprocess fee and payment for evacuation on 19.09.2016.\n\nThis     resulted    in   supplemental       power     purchase\n\nagreement      between       the    petitioner   and   the   2nd\n3   'BESCOM' for short25respondent on 28.09.2016. After the supplemental\n\npower purchase agreement, the petitioner applied for a\n\nno objection from Soratur Grama Panchayat, Honnali\n\nTaluk, Davengere.4. On 19.10.2016 the Deputy Commissioner\n\nbefore whom the conversion application was pending\n\naccorded conversion after obtaining NOC from Soratur\n\nGrama    Panchayat.   Thereafter the    1st   respondent/\n\nGovernment directed all ESCOMS to form a three\n\nmember committee to consider extension requests of\n\nfarmers holding lands for a period of 3 months. The\n\ncommunication was sent to all ESCOMS on 24.11.2016.\n\nOn 06.01.2017 the petitioner requested BESCOM to\n\ngrant extension of scheduled date of commissioning of\n\nthe project by 6 months on account of force majeure.\n\nThe BESCOM on receipt of such request from the\n\npetitioner and the like, directed the petitioner to submit26documents in support of the claim for extension of the\n\nproject.5. On 27.02.2017 the petitioner again requested\n\nalong with all the documents extension of scheduled\n\ndate of commissioning of the project by six months.\n\nPending all such applications for extension - one from\n\nthe farmers and the other from the petitioner and the\n\nlike,      KREDL   informed        all   ESCOMS   by   its\n\ncommunication dated 16.03.2017 that requests for\n\nextension of time should not be considered as a routine\n\nexercise except under extraordinary conditions to be\n\nproved by the project developer within the scope of the\n\npower purchase agreement.           The Commission issued\n\nanother letter/direction directing BESCOMs to advice\n\nthe petitioner and all those who were in possession of\n\nsuch power purchase agreements to file a petition before\n\nit with all necessary documents seeking approval for27extension of time. This direction of the Commission was\n\nissued on 05.04.2017.6. On 16.06.2017 BESCOM approved the request\n\nof the petitioner for scheduled date of commissioning of\n\nthe solar power project by 6 months on account of force\n\nmajeure reasons subject to any damages to be payable\n\nand the tariff to be approved by the Commission. The\n\nGovernment on 23.06.2017 addressed a communication\n\nto KREDL observing that Government has accepted the\n\nplea of ESCOMs in the matter of extension of time to\n\nachieve commissioning of solar project under farmers'\n\nscheme invoking force majeure conditions of the power\n\npurchase    agreement    and    also   requested    the\n\nCommission to approve such extension of time.7. On 07.07.2017 the Commission again issued\n\ndirectives to ESCOMS directing them not to grant\n\nextension of time without the prior approval of the\n\nCommission. On 09.08.2017 BESCOM in terms of the28direction   issued by       the    Commission directed            the\n\npetitioner and the like to seek approval from the\n\nCommission     for    extension         of     scheduled   date    of\n\ncommissioning.       Pending such approval, a provisional\n\ninterconnection approval was accorded by BESCOM and\n\ncommissioning certificate was also issued confirming\n\nthat   solar   power     plant         of    the   petitioner     was\n\ncommissioned. After all the aforesaid proceedings, the\n\npetitioner filed original petition as was directed by\n\nBESCOM before the Commission in O.P.No.214 of 2017\n\nseeking approval of scheduled date of commissioning.\n\nThe    Commission      by    its       order    dated   09.10.2018\n\ndismissed original petition and directed to pay damages\n\nand liquidated damages as per clauses of the power\n\npurchase agreement and also directed that the tariff\n\napplicable to the petitioner would be Rs.4.36 per unit as\n\nopposed to Rs.8.40 per unit and agreed to by the parties\n\nunder the power purchase agreement. It is this order\n\ndated 09.10.2018 and the like, even or odd, that is29called in question by all the petitioners in these\n\npetitions.8. Heard Sri Manmohan P.N. learned counsel\n\nappearing for the petitioners in most of the petitions,\n\nSri Ganapathi Bhat Vajralli, learned counsel appearing\n\nfor few of the petitioners, Sri S.Sriranga, learned\n\ncounsel appearing for KPTCL, Sri Shahbaaz Husain,\n\nlearned counsel appearing for BESCOM and KPTCL,\n\nSmt. M.C. Nagashree, learned High Court Government\n\nPleader for the State, Sri B.N.Prakash, learned counsel\n\nfor   the    Commission   and    Sri   Murugesh.V.Charati,\n\nlearned counsel for KREDL.9. The learned counsel Sri Manmohan P.N who\n\nhas led the arguments in the case would urge the\n\nfollowing contentions, that the Commission had no\n\njurisdiction to intervene in the matter in exercise its\n\ninherent power under Regulations 11 and 14 of the\n\nKarnataka Electricity Regulatory Commission (General30and Conduct of Proceedings) Regulations, 2000; that\n\ninherent powers of the Commission would not enable it\n\nto determine the tariff once an agreement has been\n\nsigned between the petitioners and BESCOM; that\n\npower of the Commission is restricted to the period prior\n\nto execution of the power purchase agreement and not\n\nafter that; that the Commission had no jurisdiction to\n\nalter or modify terms of the agreement; that letters\n\nissued by the Commission directing cases to be filed\n\nbefore it for extension would amount to being a Judge in\n\nits own cause; that the parties having appeared before\n\nthe Commission cannot confer jurisdiction upon the\n\nCommission to decide the issue after it had no\n\njurisdiction under the Act; that the Commission has not\n\nproceeded with an open mind as the Commission had\n\npre-judged the issue by directing ESCOMS not to grant\n\nextension of scheduled date of commissioning the\n\nproject.319.1. The learned counsel would place reliance\n\nupon the following judgments:(i)     GUJARAT URJA VIKAS NIGAM LIMITED v.SOLAR SEMICONDUCTOR POWER COMPANY\n\n        (INDIA) PRIVATE LIMITED AND ANOTHER -\n\n        (2017) 16 SCC 498;(ii)    BESCOM         v.        KONARK       POWER    PROJECTS\n\n        LIMITED AND ANOTHER - (2016) 13 SCC 515;(iii)   RAGHU      INFRA            PRIVATE      LIMITED     AND\n\n        ANOTHER             v.     C.E.S.C.     AND    ANOTHER\n\n        (W.P.No.51518-51519/2016                 decided      on\n\n        27-08-2019 by this Court);\n\n(iv)    ASIAN   FAB         TECH     LIMITED     v.   CESC   AND\n\n        ANOTHER(W.P.No.51365 of 2016 decided on 27-08-2019 by\n\n        this Court);(v)     CHENNAMANGATHIHALLI                    SOLAR       POWER\n\n        PROJECT LLP AND ANOTEHR v. BESCOM AND\n\n        ANOTHER32(Appeal No.351 of 2018 decided on 14-09-2020 by\n\n         the APTEL);(vi)     A.U.KURESHI v. HIGHCOURT OF GUJARAT\n\n         AND ANOTHER - (2009) 11 SCC 84;(vii) MOHD. YUNUS KHAN v. STATE OF UTTAR\n\n         PRADESH AND OTHERS - (2010) 10 SCC 539;(viii)     SIEMENS       LIMITED       v.    STATE      OF\n\n         MAHARASHTRA AND OTHERS - (2006) 12 SCC\n\n         33 and(ix)     COMMITTEE OF MANAGEMENT AND ANOTHER\n\n         v. VICE CHANCELLOR AND OTEHRS- (2009) 2 SCC 630.10. The other learned counsel has toed the lines of\n\nargument of Sri Manmohan P.N., learned counsel.11. On the other hand, learned counsel Sri\n\nS.Sriranga, appearing for the respondent KPTCL and\n\nBESCOM would at the outset submit that petitioners\n\nhave an alternative and efficacious remedy of filing an33appeal before the Appellate Tribunal for Electricity\n\nconstituted underSection 111of the Electricity Act,\n\n2003     and     the   impugned    order    passed   by   the\n\nCommission cannot be questioned before this Court.\n\nWithout prejudice to the issue of maintainability, the\n\nlearned counsel would also submit that the Commission\n\nhad jurisdiction to direct what it has done and the order\n\npassed by the Commission is unassailable and would\n\nplace reliance upon judgments in cases of:(i)     ALL INDIA POWER ENGINEERS FEDERATION\n\n        LIMITED v. SASAN POWER LIMITED- (2017) 1 SCC 487;(ii)    TATA POWER COMPANY LIMITED v. RELIANCE\n\n        ENERGY LIMITED- (2009) 16 SCC 659;(iii)   GUJARAT URJA VIKAS NIGAM LIMITED v.TARINI    INFRASTRUCTURE           AND   OTHERS     -\n\n        (2016) 8 SCC 743;(iv)    P.SINGARAVLEAN AND OTHERS v. DISTRICT\n\n        COLLECTOR, TIRUPUR AND OTHERS-34(2020) 3 SCC 133;(v)     GUJARAT URJA VIKAS NIGAM LIMITED v.EMCO LIMITED AND ANOTHER -(2016) 11 SCC 182;(vi)    EARTH SOLAR PRIVATE LIMIED v. PUNJAB\n\n        STATE        ELECTRICITY         REGULARTORY\n\n        COMMISSION AND ANOTEHR- (Appeal No.169 of 2015 decided on 11-01-2019);(vii)   RELIANCE INFRASTRUCTURE LIMITED v.STATE   OF    MAHARASHTRA        -   (Civil   Appeal\n\n        No.879 of 2019 decided on 21-01-2019);(viii) A.P. TRANSCO v. SAI RENEWABLE POWER (P)\n\n        LIMITED - (2011) 11 SCC 34;(ix)    VATSALA BELLARY v. KREC AND OTHERS -(W.P.No.35569 of 2018); and(x)     GRAPHITE     INDIA   v.   KERC   AND      OTHERS\n\n        (W.P.No.12576 of 2018 decided on 21-06-2018).3512. I have given my anxious consideration to the\n\nrival submissions made across the bar and have\n\nperused the material on record.13. The facts narrated hereinabove would not need\n\nreiteration as they are not in dispute. To consider the\n\ncontentions advanced by respective parties as aforesaid,\n\nthe prayers in the writ petition that is taken for\n\nreference are to be noticed. The prayers that are sought\n\nin Writ Petition No.52028 of 2018 read as follows:(i)     Issue a writ of certiorari and quash the\n             communication      dated     16-03-2017\n             bearing     No.KERC/        S/F-31/VOL-ALL/16-17/2763 issued by the 5th\n             respondent (Produced as Annexure-S);and\n\n     (ii)    Issue a writ of certiorari and quash the\n             communication       dated      5-04-2017\n             bearing     No.KERC/        S/F-31/VOL-\n             ALL/16-17/55 issued by the 5threspondent (Produced as Annexure-T);\n             and(iii)   Issue a writ of certiorari and quash the\n             communication      dated     07-07-2017\n             bearing     No.KERC/        S/F-31/VOL-ALL/17-18/541 issued by the 5th36respondent (Produced as Annexure-V);\n        and(iv)    Issue a writ of certiorari and quash the\n        communication      dated     16-06-2017\n        bearing        No.CM(Ele.)/PP/BESCOM\n        /DGM-1/AGM-1/BC-39/F-/17-18/3627-33 issued by the 2nd respondent insofar\n        as subjects the extension of SCOD to the\n        condition that the tariff applicable and\n        the liquidated damages to be paid if\n        any is subject to Hon'ble KERC/GOK\n        approval (Produced as Annexure-F); and(v)     Issue a writ of certiorari and quash the\n        communication      dated     09-08-2017\n        bearing NO. GM (Ele)/PP/BESCOM/\n        DGM-1/AGM-1/BC-39/F-17-18/ 6810\n        issued by the 2nd respondent (Produced\n        as Annexure-X); and(vi)    Issue a writ of certiorari and quash the\n        order dated 9-10-2018 passed in\n        O.P.No.214 of 2017 passed by the 5th\n        respondent (Produced as Annexure-AB);\n        and(vii)   Issue a writ of mandamus directing the\n        2nd respondent to pay the tariff of\n        Rs.8.40 kwh to the petitioner as per the\n        Power Purchase Agreement dated 26-\n        08-2015 (Produced as Annexure-C; and(viii) Pass such other orders as deemed fit in\n       the facts and circumstances of the case,\n       in the interest of justice and equity."37In   furtherance     of   the   solar   policy   of   the   State\n\nnotification was issued by KREDL and the petitioner\n\nwas issued a letter of award for development of MW\n\nsolar power plant. Certain clauses of the power\n\npurchase agreement dated 26-08-2015 entered into\n\nbetween the petitioner and BESCOM are germane to be\n\nnoticed and are accordingly extracted herein for the\n\npurpose of ready reference:"Article-I: Definitions\n\n      1.1   For all purposes of this Agreement, unless the\n            context otherwise requires the following\n            words and expressions shall have the\n            respective meanings set forth below:...          ...           ...          ...(xii)   "Effective Date" shall mean date of\n                    signing of this Agreement by the parties:...           ...          ...          ...(xxviii)"Scheduled Commissioning Date"shall mean 18 (eighteen) months from\n                   the Effective Date.(xxix) "State loan dispatch Centre" means\n                   the State Load Despatch Centre\n                   established as per the Act;(xxx) "State transmission Utility" or\n                  "STU" shall mean Karnataka Power38Transmission Corporation Limited or\n           KPTCL.(xxxi) "Tariff Payment" shall mean the\n             payments to be made under Monthly\n             Bills as referred to in Clause 6.3 and\n             the relevant Supplementary Bills.\n\n5.1   Tariff payable:The SPD shall be entitled to receive the Tariff\n      of Rs.8.40 per KWH based on the KERC tariff\n      order S/03/1 dated 10-10-2013 in respect of\n      SPD's Solar PV projects in terms of his\n      agreement for the period between COD and\n      the Expiry Date. However, subject to Clause\n      2.5, if there is a delay in commissioning of the\n      Project beyond the Scheduled Commissioning\n      Date and during such period there is a\n      variation in the KERC Tariff, then the\n      applicable Tariff for the projects shall be the\n      lower of the following:(i)   Rs.8.40 per kwh.(ii)  Varied tariff applicable as on the\n                   date of Commercial Operation.Article-8 FORCE MAJEURE\n\n8.1   Definitions:In this Article, the following terms shall have\n      the following meanings:8.2   Affected Party:39An affected party means BESCOM or the SPD\n      whose performance has been affected by an\n      event of Force Majeure.8.3   Force Majeure Events:a) Neither Party shall be responsible or\n         liable for or deemed in breach hereof\n         because of any delay or failure in the\n         performance      of    its  obligations\n         hereunder (except for obligations to\n         pay money due prior to occurrence of\n         Force Majeure events under this\n         Agreement)     or   failure  to   meet\n         milestone dates due to any event or\n         circumstance (a "Force Majeure Event")\n         beyond the reasonable control of the\n         Party affected by such delay or\n         failure, including the occurrence of\n         any of the following:i. Acts of God;ii.    Typhoons,    floods,   lightning,\n               cyclone,   hurricane,    drought,famine, epidemic, plague or other\n               natural calamities;iii.      Strikes, work stoppages, work\n               slowdowns     or   other  labour\n               dispute which affects a Party's\n               ability to perform under this\n               Agreement;iv.    Acts of war (whether declared or\n               undeclared), invasion or civil\n               unrest;40v.     Any    requirement,    action   or\n         omission to act pursuant to any\n         judgment or order of any court or\n         judicial   authority    in   India\n         (provided    such     requirement,\n         action or omission to act is not\n         due to the breach by the SPD or\n         BESCOM, of any law or any of\n         their respective obligations under\n         this Agreement);vi.    Inability despite complying with\n         all legal requirements to obtain,\n         renew or maintain required\n         licenses or Legal Approvals;vii.   Fire, Earthquakes, explosions,\n         accidents, landslides;viii. Expropriation and/or compulsory\n        acquisition of the Project in\n        whole or in part;ix.    Chemical      or        radioactive\n         contamination        or   lionizing\n         radiation; or\n\n  x.     Damage to or breakdown oftransmission facilities of either\n         Party;b) The availability of the above item (a) to\n   excuse a Party's obligations under this\n   Agreement due to a Force Majeure Event\n   shall be subject to the following limitations\n   and restrictions:41i.      The non-performing Party gives the\n                other Party written notice describing\n                the particulars of the Force Majeure\n                Event as son as practicable after its\n                occurrence;ii.     The suspension of performance is of\n                no greater scope and of no longer\n                duration than is required by the\n                Force Majeure Event.iii.    The non-performing Party is able to\n                resume performance of its obligations\n                under this Agreement, it shall give\n                the other Party written notice to that\n                effect;iv.     The Force Majeure Event was not\n                caused by the non-performing Party's\n                negligent or intentional acts, errors or\n                omissions,        or       by        its\n                negligence/failure to comply with\n                any material law, or by any material\n                breach or default under this\n                Agreement;v.       In no event shall a Force Majeure\n                 Event excuse the obligations of a\n                 Party that are required to be\n                 completely performed prior to the\n                 occurrence of a Force Majeure Event....           ...                ...          ...\n\n12.10          Amendments:42This Agreement shall not be amended,\n              changed, altered or modified except by a\n              written instrument duly executed by an\n              authorized    representative   of    both\n              Parties. However, BESCOM may consider\n              any amendment or change that the\n              Lenders may require to be made to this\n              Agreement subject to the approval of the\n              Commission.(Emphasis added)\n\nClause (xxviii) of the definitions would define 'Scheduled\n\nCommissioning Date' to be 18 months from the effective\n\ndate. Clause (xii) thereof defines 'Effective Date" would\n\nmean the date of signing of the agreement between the\n\nparties. The 'Conditions Precedent' are dealt with under\n\nArticle-2. Damages for delay to be paid by the Developer\n\nare dealt with under Clause 2.2. Extensions of time are\n\ndepicted in Clause 2.5. In terms of Clause 2.5.6 the\n\nresult   of    extensions     would        be    the    scheduled\n\ncommissioning      date     and    expiry       date    would   be\n\ndetermined     afresh     which    shall    be    the   scheduled\n\ncommissioning      date    and the expiry date for the\n\npurposes of the agreement. Tariff payable in terms of43the agreement is dealt with under Clause 5.1 which\n\ndetermines agreed tariff to be Rs.8.40 per kWh. Force\n\nMajeure is dealt with underArticle 8.One such clause\n\ndepicts   inability   despite    complying   with   all   legal\n\nrequirements to obtain, renew or maintain required\n\nlicenses. It is in terms of the aforesaid agreement that\n\nthe entire issue now springs and is to be considered.14. In terms of the agreement, the petitioner\n\napplied for evacuation approval from the hands of\n\nKPTCL and conversion from the hands of Deputy\n\nCommissioner and no objection from the hands of\n\nSoratur Gram Panchayat. The approval was granted on\n\ndifferent dates and a supplemental power purchase\n\nagreement was also entered into between the parties.Since the issue now is with regard to delay in scheduled\n\ndate of commissioning, the reasons behind the delay is\n\nrequired to be noticed.4415. The petitioners in all these cases requested\n\nBESCOM for extension of scheduled commissioning\n\ndate enclosing the dates on which steps have been\n\ntaken by the petitioners seeking several statutory\n\napprovals which were held at the hands of Government.\n\nFirst representation of the kind was given on 1st\n\nFebruary 2017 and the second representation of the\n\nkind was given on 27th February 2017. In reply, what\n\nthe 1st petitioner got was a communication dated\n\n15-04-2017 from BESCOM which reads as follows:-"Sir,\n\n     Sub: Power Purchase Agreement of 2 MW\n          Tuggalahalli village, Honnali Taluk,\n          Davangere District, Karnataka State of\n          Sri AmarthyaRajashekarappa - reg\n          Extension of Scheduled Commissioning\n          date.Ref: 1.      PPA executed with BESCOM on\n                  26.08.2015.2.   Your letter dated 06-01-2017,\n                  1.2.2017 & 27.2.20173.   KERC      letter  No.KERC/S/F-31/Vol-1ll/16-17/55 dated 05-04-\n                  2017.--45Hon'ble KERC vide letter cited under\nref.(3),   have          informed         that     ,    the\nCommission has the jurisdiction of legal\nscrutiny of validity of the extension of\ntime granted in any case by an ESCOM.\nSuch proceedings being a part of judicial\nfunctions        of   the       Commission        require\nreasonable opportunity to be given to\nboth parties of the PPA to present their\ncase.In this regard, Hon'ble Commission directs all\nthe     ESCOMs        to       advice    the     concerned\nSPD/SPVs under Land Owners/ Farmers\nScheme      to    file     a     petition      before   the\nCommission               with           all       relevant\ngrounds/documents for seeking approval for\nany extension of the Commissioning date.\n(copy of the letter is enclosed).I am directed to request you, to file a\npetition before the Hon'ble Commission\nforth,     with          all     relevant        grounds/\ndocuments for seeking approval for any\nextension of the Commissioning date."(Emphasis added)46The communication furnished by BESCOM was based\n\nupon     the    letter    issued     by   the   Commission    on\n\n16-03-2017 which reads as follows:"No.KERC/S/F-31/Vol-All/16-17/ Dated:16-\n       03-2017\n\n       The Managing Director,\n       BESCOM/MESCOM/ESCOM/HESCOM/\n       GESCOM.Sir,\n       Sub: Extension of time to achieve COD of the\n            Solar Projects - reg.Ref. 1.BESCOM      letter  NO.GM(Ele)/PP/\n            BESCOM/DGM-1/AGM-1/BC-39/F..\n            dated 9thJanuary, 2007.2.KERC letter No.KERC/S/F-31/Vol-\n            41/15-16/148 dated 04-05-2015.--It has come to the notice of the\n       Commission that the BESCOM in its letter\n       cited    under      reference,       has    granted\n       extension     of    time      of   six   months   to\n       achieve COD for the 10 MW Solar Project,\n       beyond the time allowed in the PPA\n       without altering the terms of the original\n       PPA.    The       PPA   was      approved   by the\n       Commission vide its letter cited under47Ref.2 above. The Commission has noted\nthat BESCOM has not obtained prior\napproval of the Commission regarding\nthe extension of time. The reasons and\njustification for the extension of time are\nnot     forthcoming        from    the    letter       of\nBESCOM.The Commission has also observed that in\ncertain instances, ESCOMs have granted\nextension of time          to achieve commercial\noperation of the solar projects from the\noriginally agreed scheduled commissioning\ndate,    without    altering      the    terms        and\nconditions of the PPA.Since the extension of time by ESCOMs\nwithout altering the terms of the original PPA\nwill have impact on the Tariff payable by the\nESCOMs, the Commission has the jurisdiction\nof legal scrutiny of validity of the extension of\ntime granted.The     Solar   Projects    are   expected       to    be\ncompleted in the time bound manner in order\nto ensure that not only the anticipated solar48power generation accrues to the grid to meet\n      the planned demand but also to ensure that\n      the capital cost of the developer is as per\n      assumption mode for calculating the Tariff\n      offer and any extension of time will have for\n      reaching tariff implications affecting the end\n      consumers. In view of rapid changes in\n      the market conditions of photovoltaic\n      plants, resulting in sustained reduction\n      in their cost. Extension of time should\n      not be considered as a routine exercise\n      except under extra-ordinary conditions to\n      be proved by the project developer, within\n      the scope of the original PPA.I am directed to inform all ESCOMs to\n      not to allow any extension of time beyond\n      the Scheduled Commissioning date (COD)\n      if any, as per the original PPA without\n      obtaining     prior      opinion    of      this\n      Commission."(Emphasis added)\nThe Commission clearly directed ESCOMs not to allow\n\nany   extension    of   time     beyond   the     scheduled\n\ncommissioning date without obtaining prior approval of49the Commission. The Commission again communicates\n\non 05.04.2017 with regard to extension of time for\n\nscheduled commissioning of the project. The letter dated\n\n05.04.2017 reads as follows:"No.KERC/S/F-31/Vol-All/16-17/55\n     Date:5-04-2017\n\n     The Managing Director,\n     BESCOM/MESCOM/CESC/HESCOM/GESCOM\n     Sir,\n\n     Sub: Request for Commission's approval for\n            Supplementary            PPAs       executed     to\n            incorporate extension of time to achieve\n            COD     at     the     Solar      Projects   under\n            landowners/farmers scheme - Reg.\n     Ref: KERC           letter     No.KERC/S/F-31/Vol-All/16-17/2763 dated 17-03-2017.--The Commission is receiving for approval\n     several Supplementary PPAs executed in\n     respect   of    Solar         Projects     under    Land\n     Owners/Farmers'                    Scheme.            Such\n     supplemental PPAs mainly seek to extend\n     time to the developers to achieve CoD beyond50the date specified in the original PPAs. The\nESCOM       concerned      has         stated    that   a\nCommittee formed with its Director Technical\nas Chairman, as directed by the Government\nin Energy Department to resolve the issue of\ngranting extension of CoD by consideringArticle 2.5and8of the PPA, has decided to\ngrant     extension   of        time    for     achieving\nscheduled commissioning of the project as\nrequested by the developer.2.      The Commission has noted that, the\ngrounds cited to grant extension of time and\nthe duration of such extension vary from case\nto case. However, the proceedings of the said\nCommittee and the proposal of the ESCOMs\nwhich are not supported by any documents\nand independent findings, are inadequate to\nenable the Commission to take a decision in\nthe matter.3.      As already clarified in the Commission's\nletter dated 17-03-2017 cited under reference\nthe Commission has the jurisdiction of legal\nscrutiny of the extension of time granted in\nany case by an ESCOM. Such proceedings51being a part of judicial functions of the\n     Commission require reasonable opportunity to\n     be given to both parties of the PPA to present\n     their case.4.    Hence,        I        am     desired      by         the\n     Commission              to     inform        that           the\n     Commission directs all the ESCOMs to\n     advice the concerned SPD/SPVs under\n     Land Owners/Farmers Scheme to file a\n     petition before the Commission with all\n     relevant grounds/documents for seeking\n     approval      for        any       extension         of     the\n     commissioning            date.      It    may    also        be\n     noted, this direction of the Commission\n     applies to even such cases where the\n     ESCOMs         have           not        entered           into\n     Supplementary                PPAs        following          the\n     decision      of    the       Committee         to        grant\n     extension of commissioning date."(Emphasis added)\n\nIt is here that the marrow of the lis lies. In paragraph 4\n\nof the communication the Commission directs all\n\nESCOMs to advice the petitioner and the like to file a52petition      before    it   with   all    relevant    grounds     and\n\ndocuments        seeking      approval      of   any   extension    of\n\ncommissioning date. It further directs that this direction\n\nof the Commission would apply even to such cases\n\nwhere ESCOMs have not entered into supplementary\n\npower purchase agreement. The Commission again on\n\n07.07.2017 directed all ESCOMs not to send any\n\nproposal for approval of the Commission till petitions\n\nare   filed    by      the   petitioners    and   like   before    the\n\nCommission.            The      said       communication         dated\n\n07.07.2017 reads as follows:"No.KERC/S/F-31/Vol-All/17-187/541\n      Date:07.07.2017\n      The Managing Director,\n      BESCOM/MESCOM/CESC/HESCOM/GESCOM\n      Sir,\n      Sub: Extension of time for SCOD in respect of 1 to 3\n               MWs Solar Power Plants in Karnataka, under\n               Farmers category. - Reg.Ref: i)           Govt.letter No.EN 67 VSC 2017 dated\n                        23.06.201753ii)    KERC            letter       No.KERC/S/F-31/Vol.All/17-18/212 dated 09-05-\n            2017.iii)   Govt. letter No: EN 67 VSC 2017 dated\n            25.04.2017.(iv)   KERC       letter      No.KERC/S/F-31/Vo-All/16-17/65 dated 05-04-2017.(v)    KERC      letter      No.KERC/S/F-31/Vol-All/16-17/2763 dated 17-03-2017.(vi)   Govt.letter No.EN 75 VSC 2016 date\n            24.11.2016--Please refer to the letter dated 23-06-2017\ncited under reference (1) RECEIVED FROM THE\nEnergy Department, GoK, wherein the Government\nhas stated that, it has accepted the views of the\nESCOMs, in the matter of extension of time to\nachieve CoD of the Solar Projects under farmers'\nscheme invoking Force Majeure conditions of the\nPPA and hence has requested the Commission to\napprove such extension of time for achieving CoD.I am directed to inform you that, the\naction of the ESCOMs to permit the developers\nto commission the projects beyond the original\nscheduled CoD as per PPA, has been approved\nby the Commission, which however, has noted\nthat the tariff applicable in each case needs54to be examined on merits of each individual\n       case.I am also directed to inform you that, the\n       ESCOMs may advice the concerned SPD/SPVs\n       under Land Owners/ Farmers scheme to file a\n       petition, each before the Commission with all the\n       relevant grounds/documents for justifying their\n       claims for extension of time under Force majeure\n       conditions of the PPA.Further, the ESCOMs are hereby directed not\n       to send any SPPA in respect of these cases for\n       approval of the Commission, till the petition(s) filed\n       by the SPDs/SPVs before the Commission, is/are\n       disposed of.(Emphasis added)\n\n\n\nFrom the correspondences between BESCOMs and the\n\nCommission, Government of Karnataka also requested\n\nthe   Commission      to   extend      time    for the   reasons\n\ncommunicated in the letter dated 23.06.2017. The letter\n\nof    the   Government      to       the    Commission     dated\n\n23.06.2017 reads as follows:-55"From:The Additional Chief Secretary to Government,\nEnergy Department, Bangalore.To:The Secretary,\nKarnataka Electricity Regulatory Commission,\n6th& 7th Floor, Mahalakshmi Chambers,\nNo.9/2, M.G.Road, Bengaluru-560 001.Sir,\n\nSub: Extension of time for SCOD in respect of 1 to 3\n     MWs Solar Power Plants in Karnataka under\n     Farmers Category - reg.Ref: 1.      Government same file No.Letter dated\n             23.04.2017.2.    Your        letter      No.KERC/S/F-31/Vol.A11/17-18/ 212 D:09-05-2017.3.    MD, CESC DO.letterNo.CESC/MD/GM\n             (coml.) RA 2/17-18/DO-63 D:11-05-20174.    MD,            HESCOM             letter\n             No.HESCOM/GM(T)/EE/ (RA)/AEE/17-\n             18/3624 D: 15-05-2017.5.    MD,            GESCOM             letter\n             NO.GESCOM/CEE(CP)/EE/              AEE\n             (PTC)2016-17/7945 D:16-05-20176.    MD,            MESCOM            Letter\n             No.MESCOM/MD/PS/99         D.   17-05-2017.--In inviting kind reference to the above, for the\nGovernment     proposal     under   ref   (1)   regarding56considering approval to the extension of COD of\nSolar Power Projects of capacity 1 to 3 MW under\nland owning farmers category in BESCOM, the\nHon'ble   Commission       vide       reference    (2),   has\nrequested the Government to furnish the details of\nsimilarly placed cases in the other ESCOMs, in\norder to take view in the matter.In this regard, other ESCOMs have also\nsubmitted their request on the subject matter. The\nESCOM wise details of the projects under land\nowner Farmers is as below:...           ...                ...               ....As per the above table, out of 304 MW PPA\nsigned, 131 MW projects have been commissioned\nwithin SCOD. Extension of time has been issued by\nESCOMs for 129 MW capacity. Proposals to an\nextent of 31 MW capacity is pending at ESCOMs\nlevel, since the Hon'ble Commission has directed all\nESCOMs not to allow any extension of time beyond\nthe schedule COD, without obtaining prior opinion\nof the Commission.From the proposals submitted by all\nESCOMs it is clear that the reasons for delay\nin execution of the project are common and57the   main       reasons    for    considering   the\nextension of SCOD are as below:a. Delay in getting land conversions.\n      b. Delay in getting evacuation approval,\n        Bay extension approval, CEIG approval\n        etc.\n      c. Delay in financial closure due to delay\n        in the above mentioned permits.\n      d. Delay due to demonetization of the\n        Indian Currency.e. Delay    in   getting    Railway   Crossing\n        approval\n      f. Delay in getting MEI switchgears.The Managing Directors of CESC, HESCOM,\nGESCOM and MESCOM vide letters under ref (3),\n(4) (5) & (6) have explained the reasons for giving\nextension of SCOD and summed up saying that this\nscheme under farmers category is brought into\neffect with the approval of the Solar Policy by the\nCabinet. Government considers it as a preferred\nand prestigious one.    Further, it is standalone\nscheme in the energy sector not only in\nKaranata but also in the entire country.58Particularly the following are brought to the\nnotice of the Hon'ble Commission:1. The ESCOMs have constituted Committees under\n  the Chairmanship of the respective Directors\n  (Technical) to scrutinize and recommend the\n  eligible cases for giving extensions of SCOD and\n  based on the scrutiny and recommendations of\n  the Commission the respective ESCOMs have\n  given extensions as required under Clause 8.3(b) of the PPA.2. The extensions are given under Force Majeure as\n  per 8.3 (a) (vi) of the PPA which read as:"Inability\n  despite complying with all legal requirements to\n  obtain renew and maintain required licenses or\n  Legal Approvals."Hence ESCOMs have given extensions of COD on\nidentical reasons under PPA clause 2.5 (Extension\nof time) andArticle 8 (Force Majeure).In all these\ncases extensions of COD is given by ESCOMs upto\n6 (six) months from the date of SCOD as per PPA\nClause 2.5 andArticle 8clearly mentioning that all\nother terms and conditions shall remain unaltered\nat the KERC approved rate of unit as laid down in59the terms and conditions of PPA in consideration of\n     the investment made by the farmer.Accordingly, the reasons given by and the\n     opinion of MD's of CESC, HESCOM, GESCOM and\n     MESCOM are acceptable to the Government (Copies\n     enclosed). In view of the above, I am directed to\n     request      the   Hon'ble      Commission      to   consider\n     approval to the extension of COD of Solar Power\n     Projects of capacity 1 to 3 MW under land owning\n     famers category.(Approved by Hon'ble Energy Minister)."(Emphasis added)\n\nBESCOM communicates to the petitioner on 09.08.2017\n\nthat the petitioner will become liable for difference in\n\ntariff and liquidity damages pertaining to delayed\n\ncommissioning of the project. Here, the BESCOM\n\ndirects     the   petitioner    to    file   cases   before   the\n\nCommission forthwith justifying the claim for extension\n\nof   time     under     force     majeure      conditions.    The\n\nGovernment of India also noticed that not only in60Karnataka but in several places due to factors beyond\n\ncontrol of the developers the project could not be\n\ncommissioned     and,    therefore,     directed   Energy\n\nDepartment of Government of Karnataka to grant six\n\nmonths    extension of   time   to    solar projects.   The\n\ncommunication dated 09.04.2018 from the Ministry of\n\nNew and Renewable Energy, Government of India to the\n\nGovernment of Karnataka reads as follows:"To\n     The Additional Chief Secretary,\n     Energy Department, Govt. of Karnataka,\n     Room NO.236, 2nd Floor, Vikas Soudha,\n     Dr. B.R.Ambedkar Street,\n     Bangalore, Karnataka\n     E-mail:[email protected]Subject: Request to restore the original tariff of\n     Rs.8.40 per unit for 1-3 MW solar power plants\n     commissioned under the Land Owned farmers\n     Scheme of Karnataka.--Sir,\n     This Ministry has received a letter from Association\n     for Land Owned Farmers Solar Power Plants,\n     Karnataka on above subjects. Letter is enclosed for\n     reference.2.    Points highlighted in letter are given below as:61a. Govt. of Karnataka has implemented a\n        Land Owned Farmers Scheme with 1-3\n        MW solar plants. Under this scheme, PPA\n        of 304 MW was signed. Out of 304 MW,\n        PPA for 283 MW was signed with Rs.8.4\n        per unit tariff. Out of 283 MW, only 131\n        MW were commissioned within schemed\n        commissioning date (SCOD).b. However, ESCOMs have granted 6 months\n        extension for 162 MW solar projects for\n        commissioning of these capacities under\n        Force Majeure Article 8a(vi) of the PPA.\n        These extensions were given due to many\n        reasons    beyond     the   solar  power\n        developers' control viz., Demonetisation,\n        Cyclone effect, inordinate delay in NA\n        conversion, power evacuation approvals,\n        safety approval by CEIG and other\n        required statutory approvals.c. KERC has taken a different stand. The\n        commission has asked all farmers/PPA\n        holders to file petition explaining the\n        reasons for extension. The final\n        judgment on few petitions clearly\n        indicates that the commission has\n        taken the unilateral decision to lower\n        the tariff from Rs.8.40 to Rs.6.51 or\n        Rs.4.36. Due to this, over 57% of the\n        commissioned capacities are facing a\n        threat of survival of bankruptcy.3.    As you are aware that the Government of\nIndia has set a target of setting up 100 GW solar\ncapacities by 2022. While all efforts are being made\nto achieve this target through its various Schemes,62the solar power developers need to be given\n     adequate confidence to maximize development of\n     solar power capacity in the State. The stand taken\n     by KERC on above matters would create an\n     uncertainty for the investors and demotivate the\n     investors from investing in solar sector.4.    In view of above, it is requested that\n     Government of Karnataka may take up the above\n     matter with KERC underSection 108of the\n     Electricity Act, 2003".(Emphasis added)16.   With     all   the   aforesaid   correspondences,\n\ncommunications, approvals and extension of time, the\n\npetitioner, as was directed, approached the Commission\n\nfor extension of time in O.P.No.214 of 2017. Prayer that\n\nwas sought by the petitioner before the Commission\n\nreads as follows:"A)   Approve the extension granted by the\n           respondent      to     new     scheduled\n           commissioning date viz., 25 August, 2017\n                                      th\n\n           accorded by the 1st respondent vide its\n           letter dated 6th June, 2017 produced as\n           Annexure-P12.B)    Direct the respondent to make payment for\n           the delivered energy under the PPA dated\n           26thAugust, 2015 produced as Annexure-P2 and the supplemental agreement dated\n           28th September, 2016 produced as63Annexure-P5, at the rate of Rs.8.40 per\n             unit from the Commercial Operation Date of\n             the petitioner's product for the entire term\n             of the PPA.C)      Pass such other and incidental orders,\n             including an order as to costs as may be\n             deemed appropriate under the facts and\n             circumstances of the present case."\n\nThe Commission claiming to be considering the case of\n\nthe petitioner observed that there was no force majeure\n\nevent for the petitioner to contend that they could not\n\ncommission the project and rejected the claim of the\n\npetitioner    for   extension      of   scheduled    date    of\n\ncommissioning by the following order:"(a)    It is declared that the petitioner is not entitled\n             to any of the reliefs, sought for in the petition.(b)     The petitioner is entitled to a tariff of Rs.4.36\n             (Rupees four and paise thirty-six) only per\n             unit, the varied tariff, as applicable on the\n             date of commissioning of the petitioner's\n             plant, as fixed by the Commission in the order\n             dated 12-04-2017 for the term of the PPA, as\n             per Article 5.1 of the PPA; and(c)     The petitioner is also liable to p[ay damages,\n             as provided underArticles 2.2and 2.5.7 of\n             the PPA."64Identical orders are passed in all these cases.17. The issue now remains for consideration is,\n\nwhether the Commission could have directed BESCOM\n\nto direct the petitioners and the like to approach the\n\nCommission for extension of time.        Having solicited\n\npetitions being filed before the Commission, whether the\n\nCommission has acted as a Judge in its own cause. One\n\nacting as a Judge in his own cause is a hue of bias as\n\nbias has manifold hues and shades, one of which is 'no\n\nman can be a judge of its own cause'.         To consider\n\nwhether the Commission has acted as a Judge in its\n\nown cause, it is germane to notice the judgments of the\n\nConstitutional Courts on the issue of bias, its forms and\n\nhues.18. One of the cardinal principles of natural\n\njustice is 'nemo debetesse judex in propria causa' (no\n\nman shall be a judge in his own cause). The deciding\n\nauthority must be impartial and without bias. The Rule65that bias vitiates any findings is a rule of natural\n\njustice.     It is trite law that official bias or bias of the\n\nsubject matter is one of the limbs of bias. To appreciate\n\nthe said principle on the touchstone of official bias or\n\nbias to the subject-matter, the test is whether there was\n\na real likelihood of a bias even though such bias has not\n\nin fact taken place. It is apposite to refer DE SMITH IN\n\nHIS       JUDICIAL        REVIEW    OF    ADMINSITRATIVE\n\nACTION4,         wherein the author observes that a real\n\nlikelihood of bias means at least substantial possibility\n\nof bias.19. In HALSBURY'S LAWS OF ENGLAND5, it has\n\nbeen indicated that the test of bias is whether a\n\nreasonable intelligent man, fully appraised of all the\n\ncircumstances, would feel a serious apprehension of\n\nbias.4(1980 Edn.) at page 26254thEdn., Vol.2 para 5516620. The Divisional Court of the Kings Bench, in\n\nR.V. SUNDERLAND JUSTICES6,                  has held that the\n\nCourt will have to judge the matter as a reasonable man\n\nwould judge of any matter in the conduct of his own\n\nbusiness.21. Later, Divisional Court of the Kings Bench,\n\nin R.V. SUNDERLAND JUSTICES7, has again held in\n\nanswer to the question whether there was a real\n\nlikelihood of bias depends not upon what actually was\n\ndone but upon what might appear to be done.22.    The    aforesaid   principle    is   reiterated   in\n\nacceptance by the Apex Court inMANAK LAL v.\n\nDR.PREM CHAND8wherein the Hon'ble Apex Court has\n\nheld that the test is not whether in fact, bias has\n\naffected the judgment; the test always is and must be\n\nweather a litigant could reasonably apprehend that a6(1901) 2 KB 357, 373,71923 All ER 233,8AIR 1957 SC 42567bias attributable to a Member of the Tribunal must have\n\noperated against him in the final decision of the\n\nTribunal. It is in this sense that it is often said that\n\njustice must not only be done but must also appear\n\nto be done.23. The aforesaid principles with regard to bias are\n\nconsidered, iterated and elaborated by the Hon'ble Apex\n\nCourt in the subsequent judgment in the case ofK.      PARTHASARATHI              VS.        STATE     OF      ANDHRA\n\nPRADESH9wherein the Apex Court in paragraphs 14,\n\n15 and 16 has held as follows:"14. The test of likelihood of bias which has\n         been applied in a number of cases is based on the\n         "reasonable apprehension" of a reasonable man\n         fully cognizant of the facts. The courts have\n         quashed       decisions     on       the    strength     of   the\n         reasonable      suspicion       of    the    party     aggrieved\n         without having made any finding that a real\n         likelihood of bias in fact existed (see R. v. Huggins\n         [(1895) 1 QB 563] ;R. v. Sussex, JJ., ex. p.9(1974) 3 SCC 45968McCarthy [(1924) 1 KB 256] ; Cottle v. Cottle [(1939)\n2 All ER 535] ; R. v. Abingdon, JJ. ex. p. Cousins\n[(1964) 108 SJ 840] .) But in R. v. Camborne, JJ. ex.p Pearce [(1955) 1 QB 41 at 51] the Court, after a\nreview of    the relevant cases held that real\nlikelihood of bias was the proper test and that a\nreal likelihood of bias had to be made to appear not\nonly from the materials in fact ascertained by the\nparty complaining, but from such further facts as\nhe might readily have ascertained and easily\nverified in the course of his inquiries.15. The question then is: whether a real\nlikelihood of bias existed is to be determined\non the probabilities to be inferred from the\ncircumstances by court objectively, or, upon\nthe basis of       the     impressions     that might\nreasonably be left on the minds of the party\naggrieved or the public at large.16.   The   tests    of   "real   likelihood"   and\n"reasonable suspicion" are really inconsistent with\neach other. We think that the reviewing authority\nmust make a determination on the basis of the\nwhole evidence before it, whether a reasonable\nman would in the circumstances infer that there is69real likelihood of bias. The Court must look at the\nimpression which other people have. This follows\nfrom the principle that justice must not only be done\nbut seen to be done. If right minded persons\nwould think that there is real likelihood of\nbias on the part of an inquiring officer, he\nmust not conduct the enquiry; nevertheless,\nthere must be a real likelihood of bias. Surmise\nor conjecture would not be enough. There must\nexist circumstances from which reasonable\nmen would think it probable or likely that the\ninquiring officer will be prejudiced against the\ndelinquent. The Court will not inquire whether\nhe was really prejudiced. If a reasonable man\nwould think on the basis of the existing\ncircumstances       that       he   is   likely    to    be\nprejudiced, that is sufficient to quash the\ndecision     [see   per    Lord     Denning,      H.R.   in\nMetropolitan Properties Co. (F.G.C.) Ltd. v. Lannon\n[(1968) 3 WLR 694 at 707]] We should not,\nhowever, be understood to deny that the Court\nmight with greater propriety apply the "'reasonable\nsuspicion"   test in criminal or in          proceedings\nanalogous to criminal proceedings."(Emphasis supplied)70The case at hand will have to be judged on the\n\ntouchstone of law with regard to bias as laid down by\n\nthe Apex Court in the afore-extracted judgment.24. It is also germane to notice the decisions of the\n\nApex Court in the case ofA.U. KURESHI v. HIGHCOURTOF GUJARAT10 - and MOHD. YUNUS KHAN v.\n\nSTATE OF U.P.11-. In the case of A.U.KURESHI the\n\nApex Court has held as follows:10. It is an accepted principle of natural\n         justice that a person should not be a judge in his or\n         her own cause. In common law, this principle has\n         been    derived   from        the   Latin   maxim--nemo\n         debetesse judex in propria sua causa. A reasonable\n         permutation of this principle is that no Judge\n         should adjudicate a dispute which he or she has\n         dealt with in any capacity, other than a purely\n         judicial one. The failure to adhere to this principle\n         creates an apprehension of bias on the part of the\n         said Judge.10(2009) 11 SCC 8411(2010) 10 SCC 5397111. It    would   be    useful   to   refer   to    the\n     observations of P.N. Bhagwati, J. inAshok Kumar\n     Yadav v. State of Haryana[(1985) 4 SCC 417 :1986 SCC (L&S) 88] : (SCC p. 418)\n                    "One of the fundamental principles of\n           our jurisprudence is that no man can be a\n           judge in his own cause. The question is not\n           whether the Judge is actually biased or [has]\n           in fact [decided] partially but whether the\n           circumstances     are    such    as   to   create    a\n           reasonable apprehension in the mind of\n           others that there is a likelihood of bias\n           affecting the decision. If there is a reasonable\n           likelihood of bias it is 'in accordance with\n           natural justice and common sense that the\n           [Judge] likely to be so biased should be\n           incapacitated from sitting'. The basic principle\n           underlying this rule is that justice must not\n           only be done but must also appear to be\n           done."In the case of MOHD. YUNUS KHAN the Apex Court has\n\nheld as follows:72"25. The       legal     maxim nemo     debetesse\njudex in propria causa (no man shall be a\njudge in his own cause) is required to be\nobserved by all judicial and quasi-judicial\nauthorities    as     non-observance        thereof    is\ntreated as a violation of the principles of\nnatural justice. (Vide Secy. to Govt., Transport\nDeptt. v. MunuswamyMudaliar [1988                 Supp\nSCC 651:AIR 1988 SC 2232], Meenglas Tea\nEstate v. Workmen[AIR           1963      SC    1719]\nand Mineral      Development         Ltd. v. State    of\nBihar [AIR 1960 SC 468].)26. This Court inA.U. Kureshi v. HighCourt of\nGujarat [(2009) 11 SCC 84: (2009) 2 SCC (L&S)\n567]placed reliance uponthe judgment inAshok\nKumar Yadav v. State of Haryana[(1985) 4 SCC\n417: 1986 SCC (L&S) 88] and held that no person\nshould adjudicate a dispute which he or she has\ndealt with in any capacity. The failure to observe\nthis principle creates an apprehension of bias on\nthe part of the said person. Therefore, law requires\nthat a person should not decide a case wherein he\nis interested. The question is not whether the\nperson   is   actually      biased   but   whether    the73circumstances are such as to create a reasonable\n     apprehension in the minds of others that there is a\n     likelihood of bias affecting the decision.27. The existence of an element of bias\n     renders the entire disciplinary proceedings\n     void. Such a defect cannot be cured at the\n     appellate stage even if the fairness of the\n     appellate authority is beyond dispute. (Vide S.\n     Parthasarathi v. State of A.P.[(1974) 3 SCC\n     459: 1973 SCC (L&S) 580:AIR 1973 SC 2701]\n     and Tilak Chand MagatramObhan v. Kamala\n     Prasad Shukla[1995 Supp (1) SCC 21: 1995\n     SCC (L&S) 251].)\n                                        (Emphasis supplied)25.In the light of the lawlaid down bythe Apex\n\nCourt   in    the   afore-extracted     judgments     if    the\n\norders/communications of the Commission is noticed, it\n\nwould   without     doubt   get   vitiated   on   account    of\n\nCommission soliciting and directing BESCOM not to\n\nissue any extension orders and to direct all the\n\npetitioners to approach the Commission.It is coercing74the petitioners to come before the Commission as it has\n\nalready looked into the file and decided to direct that\n\nBESCOM should not issue any orders and that it would\n\ndecide the case if it is brought before it.26. In my considered view, there cannot be a\n\nbetter example of bias of the subject matter or official\n\nbias on the part of the Commission, to have already pre-judged the issue, directing the parties to come before it\n\nand decide the issue re-affirming what it had already\n\ndecided on hand. It is like saying "you come before\n\nme;    I'll   adjudicate,        else      wither   none       shall\n\nadjudicate"27.     The    contentions      of   the   learned counsel\n\nappearing      for   the    respondent/BESCOM            and     the\n\nCommission are unacceptable, as it is a clear case of\n\nofficial bias or bias of the subject matter on the part of\n\nthe   Commission.          The   contention      with   regard    to\n\njudgments concerning bias, quoted (supra), that, they75are all of service jurisprudence and would not be\n\napplicable to the facts of the case at hand is also\n\nrejected, for the reason that bias is that principle of\n\nnatural justice which permeates into every sphere of\n\nlaw, be it any kind of jurisprudence. Therefore, the first\n\nleg of proceedings before the Commission gets vitiated.\n\nIt is, thus, the Commission did not proceed with an\n\nopen mind to consider the case of the petitioners as the\n\nCommission had issued plethora of directions/ letters to\n\nact in a particular manner.Jurisdiction of the Commission:28. The contention of the learned counsel for the\n\npetitioners is that the Commission has no jurisdiction to\n\ndetermine tariff and once an agreement is signed\n\nbetween the parties, the power of the Commission is\n\nrestricted to the period prior to execution of PPA and\n\nonce PPA has been signed, the Commission cannot\n\ninvoke its inherent jurisdiction to issue and modify the76terms and conditions of the Agreement or intervene with\n\nregard to the obligations to be discharged by the parties.28.1. It is also his contention that there is no\n\ndispute between the petitioners and the BESCOM. The\n\nCommission has no jurisdiction to decide the case\n\nwhere there is no dispute underSection 86of the Act.29. These submissions are unacceptable for the\n\nreason that the agreement entered into between the\n\nparties clearly indicates the role of the Commission\n\nparticularly with regard to amendments.Article 12.10of the Agreement extracted (supra) directs that the\n\nagreement would not be amended and if amended by\n\nway of changes being made in the agreement, they\n\nwould be subject to approval of the Commission.30.   The   very   agreement   also   stipulates   the\n\nscheduled commissioning date and the effective date.\n\nThe effective date would mean signing of the agreement77by the parties and the scheduled commission date\n\nwould be 18 months from such effective date. With the\n\naction of the petitioners submitting representations to\n\nBESCOM and the Government of Karnataka or the\n\nGovernment directing extension to be made on several\n\nfactors would without doubt result in change of\n\nscheduled commissioning date, which would be an\n\namendment to the PPA arrived at between the parties.31. Tariff was also determined by the Commission\n\nin the cases at hand. In terms of the agreementArticle\n\n5.1 (supra)deals with a particular tariff which also\n\ndepicts that if there is a delay in commissioning of the\n\nproject beyond the scheduled commissioning date, the\n\ntariff would vary. The varied tariff has a direct link with\n\nthe scheduled commissioning date. If the scheduled\n\ncommissioning date would vary, resulting in variance of\n\ntariff this would again become subject matter of\n\napproval by the Commission. On a plain reading of the78said clauses of the PPA, the jurisdiction of the\n\nCommission cannot be taken away. But, the act of the\n\nCommission in directing or soliciting cases to be filed\n\nbefore it and deciding the cases are such acts of the\n\nCommission which cannot be countenanced.32. I therefore, decline to accept the contention of\n\nthe petitioners that there is no dispute arisen for the\n\nCommission to intervene or the petitioners to approach\n\nthe Commission. The dispute is not with regard to\n\ninterpretation of the agreement insofar as it concerns to\n\nthe parties of the agreement but, it is the events that\n\nwould lead to an amendment to the agreement that\n\nconfers jurisdiction on the Commission, not to solicit,\n\nbut to the petitioners or the parties to the PPA to\n\napproach the Commission in terms ofSection 86of the\n\nAct, which deals with functions of the Commission.Section 86of the Act reads as follows:79"86. Functions of State Commission:- (1)\nThe State Commission shall discharge the\nfollowing functions, namely:-(a)  determine     the   tariff  for\n     generation, supply, transmission and\n     wheeling of electricity, wholesale, bulk or\n     retail, as the case may be, within the\n     State:Provided that where open access\n     has been permitted to a category of\n     consumers undersection 42, the State\n     Commission shall determine only the\n     wheeling charges and surcharge thereon,\n     if any, for the said category of\n     consumers;(b) regulate electricity purchase\n     and       procurement     process    of\n     distribution licensees including the\n     price at which electricity shall be\n     procured      from    the    generating\n     companies or licensees or from other\n     sources through agreements for\n     purchase of power for distribution\n     and supply within the State;(c)      facilitate      intra-State\n     transmission and wheeling of electricity;(d) issue licences to persons\n     seeking to act as transmission licensees,\n     distribution licensees and electricity\n     traders with respect to their operations\n     within the State;80(e) promote co-generation and\n     generation of electricity from renewable\n     sources of energy by providing suitable\n     measures for connectivity with the grid\n     and sale of electricity to any person, and\n     also specify, for purchase of electricity\n     from such sources, a percentage of the\n     total consumption of electricity in the area\n     of a distribution licensee;(f) adjudicate upon the disputes\n     between the licensees, and generating\n     companies and to refer any dispute for\n     arbitration;(g) levy fee for the purposes of this\n     Act;(h) specify State Grid Code\n     consistent with the Grid Code specified\n     under clause (h) of sub-section (1) ofsection 79;(i) specify or enforce standards with\n     respect to quality, continuity and\n     reliability of service by licensees;(j) fix the trading margin in the\n     intra-State trading of electricity, if\n     considered, necessary; and(k) discharge such other functions\n     as may be assigned to it under this Act.(2) The State Commission shall advise the\nState Government on all or any of the following\nmatters, namely :-81(i)     promotion of competition, efficiency\n                   and economy in activities of the\n                   electricity industry;(ii)    promotion      of     investment  in\n                   electricity industry;(iii)   reorganization and restructuring of\n                   electricity industry in the State;(iv)    matters   concerning     generation,\n                   transmission , distribution and\n                   trading of electricity or any other\n                   matter referred to the State\n                   Commission by that Government.(3) The State Commission shall ensure\n     transparency while exercising its powers and\n     discharging its functions.(4) In discharge of its functions, the State\n     Commission shall be guided by the National\n     Electricity Policy, National Electricity Plan and\n     tariff policy published underSection 3."(Emphasis supplied)\n\nFunctions of the Commission as depicted underSection\n\n86of the Act confer manifold jurisdiction on it and one\n\nof which, undoubtedly is the controversy in the case at\n\nhand.8233. On a plain reading ofSection 86of the Act,\n\naction of the Commission was without jurisdiction to\n\nhave solicited cases. But, the obligation of the parties to\n\nthe PPA is to approach the Commission for redressal of\n\nthe controversy. Though it is not a dispute as defined\n\nunderSection 86(1)(b)of the Act, it is the power of the\n\nCommission to regulate the price of sale and purchase\n\nof electricity underSection 86(1)(b)of the Act from\n\ngenerating         company     and    distribution   of   licensees\n\nthrough agreements i.e, PPA.34. It is apposite to notice the judgment of the\n\nApex       Court    in   the   case   ofALL   INDIA    POWER\n\nENGINEER FEDERATION AN OTHERS v. SASAN\n\nPOWER LIMITED12wherein the Apex Court holds as\n\nfollows:"25. It is thus clear that if there is any\n         element of public interest involved, the court12(2017) 1 SCC 48783steps in to thwart any waiver which may be\ncontrary to such public interest.26. On the facts of this case, it is clear\nthat    the     moment         electricity        tariff   gets\naffected, the consumer interest comes in\nand public interest gets affected. This is in\nfact statutorily recognised by theElectricity ActinSections 61to63thereof. UnderSection 61,\nthe appropriate Commission, when it specifies\nterms and conditions for determination of tariff,\nis to be guided inter alia by the safeguarding of\nthe consumer interest and the recovery of the\ncost of electricity in a reasonable manner. For\nthis purpose, factors that encourage competition,\nefficiency and good performance are also to be\nheeded. UnderSection 62of the Act, the\nappropriate Commission is to determine\nsuch      tariff    in        accordance           with     the\nprinciples contained inSection 61. The\npresent case, however, is covered bySection 63,\nwhich begins with a non obstante clause stating\nthat notwithstanding               anything   contained      inSection 62, the appropriate Commission shall\nadopt     the   tariff   if    such      tariff    has     been84determined through a transparent process of\nbidding     in accordance       with the     Guidelines\nissued      by   the     Central      Government.    The\nGuidelines dated 19-1-2005 issued by the\nCentral Government underSection 63make it\nclear that such Guidelines are framed with the\nfollowing objectives in mind:"These Guidelines have been framed under\nthe above provisions ofSection 63of the Act. The\nspecific objectives of these Guidelines are as\nfollows:(1)     Promote      competitive    procurement    of\nelectricity by distribution licensees;(2) Facilitate transparency and fairness in\nprocurement processes;(3)     Facilitate     reduction     of   information\nasymmetries for various bidders;(4) Protect consumer interests by facilitating\ncompetitive      conditions     in     procurement    of\nelectricity;85(5)        Enhance      standardisation     and    reduce\nambiguity and hence time for materialisation of\nprojects;(6) Provide flexibility to suppliers on internal\noperations             while        ensuring   certainty   on\navailability of power and tariffs for buyers.xx     xx    xx      xx31. All this would make it clear that even if\na waiver is claimed of some of the provisions of\nthe PPA, such waiver, if it affects tariffs that are\nultimately payable by the consumer, would\nnecessarily affect public interest and would have\nto    pass        muster       of    the   Commission   underSections 61to63of the Electricity Act. This is\nfor the reason that what is adopted by the\nCommission underSection 63is only a\ntariff obtained by competitive bidding in\nconformity with Guidelines issued. If at any\nsubsequent point of time such tariff is\nincreased, which increase is outside the\nfour corners of the PPA, even in cases\ncovered bySection 63, the legislative intent\nand the language ofSections 61and6286make it clear that the Commission alone\n         can accept such amended tariff as it would\n         impact consumer interest and therefore\n         public interest.(Emphasis supplied)\n\nThe      Apex    Court    in   the     afore-extracted    judgment\n\nconsidered power of the regulatory commission and the\n\nchange in the agreements which cannot pass muster\n\nwithout the Commission being privy to such change.35. The Apex Court, little earlier to the afore-\n\nextracted judgment, in the case ofGUJARAT URJA\n\nVIKAS        NIGAM      LIMITED      v.   TARINI      INFRASTURE\n\nLIMITED13has held as follows:"17. As     already        noticed,Section\n         86(1)(b)of the Act empowers the State\n         Commission to regulate the price of sale\n         and purchase of electricity between the\n         generating       companies        and     distribution\n         licensees through agreements for power\n         produced for distribution and supply. As13(2016) 8 SCC 74387held by this Court inV.S. Rice & Oil Mills v. State\nof A.P. [V.S. Rice & Oil Millsv. State of A.P., AIR\n1964    SC      1781], K.      Ramanathan v. State           of\nT.N. [K. Ramanathan v. State of T.N., (1985) 2\nSCC 116: 1985 SCC (Cri) 162] and D.K. Trivedi\n&   Sons v. State       of    Gujarat [D.K.        Trivedi   &\nSons v. State of Gujarat, 1986 Supp SCC 20] the\npower of regulation is indeed of wide import. The\nfollowing extracts from the reports in the above\ncases would illuminate the issue:17.1.V.S.       Rice    &     Oil    Mills v. State   of\nA.P. [V.S. Rice & Oil Millsv. State of A.P., AIR\n1964 SC 1781]: (AIR p. 1787, para 20)\n              "20. Then it was faintly argued by\n       Mr Setalvad that the power to regulate\n       conferred on the respondent bySection\n       3(1)cannot include the power to increase\n       the tariff rate; it would include the power\n       to reduce the rates. This argument is\n       entirely        misconceived.            The     word\n       "regulate" is wide enough to confer\n       power on the respondent to regulate\n       either     by     increasing          the   rate,     or\n       decreasing the rate, the test being\n       what      is    it     that     is    necessary       or88expedient to be done to maintain,\n     increase,    or    secure    supply     of        the\n     essential articles in question and to\n     arrange for its equitable distribution\n     and its availability at fair prices."17.2.K. Ramanathan v. State of T.N. [K.\nRamanathanv. State of T.N., (1985) 2 SCC 116 :1985 SCC (Cri) 162] : (SCC pp. 130-31, paras\n18-19)"18. The word "regulation" cannot\n     have any rigid or inflexible meaning as to\n     exclude "prohibition". The word "regulate"\n     is difficult to define as having any precise\n     meaning. It is a word of broad import,\n     having a broad meaning, and is very\n     comprehensive      in   scope.      There    is    a\n     diversity of opinion as to its meaning and\n     its application to a particular state of facts,\n     some courts giving to the term a somewhat\n     restricted, and others giving to it a liberal,\n     construction.     The   different    shades        of\n     meaning are brought out in Corpus Juris\n     Secundum, Vol. 76 at p. 611:89'"Regulate" is variously defined\n      as meaning to adjust; to adjust, order,\n      or   govern          by     rule,       method,        or\n      established mode; to adjust or control\n      by rule, method, or established mode,\n      or governing principles or laws; to\n      govern; to govern by rule; to govern by,\n      or   subject         to,        certain      rules     or\n      restrictions;         to    govern         or    direct\n      according to rule; to control, govern,\n      or direct by rule or regulations."Regulate"           is    also     defined      as\n      meaning to direct; to direct by rule or\n      restriction;         to    direct       or      manage\n      according to certain standards, laws,\n      or rules; to rule; to conduct; to fix or\n      establish; to restrain; to restrict.'\n\nSee also: Webster's Third New International\nDictionary, Vol. II, p. 1913 and Shorter Oxford\nDictionary, Vol. II, 3rd Edn., p. 1784.19. It has often been said that the\n      power to regulate does not necessarily\n      include      the     power        to    prohibit,     and\n      ordinarily     the    word        "regulate"     is   not90synonymous with the word "prohibit". This\nis true in a general sense and in the sense\nthat mere regulation is not the same as\nabsolute prohibition. At the same time, the\npower to regulate carries with it full power\nover the thing subject to regulation and in\nabsence of restrictive words, the power\nmust be regarded as plenary over the\nentire subject. It implies the power to rule,\ndirect   and    control,   and   involves   the\nadoption of a rule or guiding principle to be\nfollowed, or the making of a rule with\nrespect to the subject to be regulated. The\npower to regulate implies the power to\ncheck and may imply the power to prohibit\nunder certain circumstances, as where the\nbest or only efficacious regulation consists\nof suppression. It would therefore appear\nthat the word "regulation" cannot have any\ninflexible     meaning     as    to   exclude\n"prohibition". It has different shades of\nmeaning and must take its colour from the\ncontext in which it is used having regard to\nthe purpose and object of the legislation,\nand the Court must necessarily keep in91view the mischief which the legislature\n             seeks to remedy."(Emphasis supplied)\n\nThe role of the Commission and its power to regulate is\n\ndelineated in the aforementioned judgments.               In the\n\nlight   of   the   judgments     of   the   Apex    Court,     the\n\nCommission cannot be kept in the dark when the effect\n\nis amendment to the PPA. Therefore, I decline to accept\n\nthe contention of the learned counsel for the petitioners\n\nthat the Commission has no jurisdiction to entertain the\n\ndispute.36. Insofar as the contention that alternative\n\nremedy of appeal is to be filed by the petitioners in\n\nterms ofSection 111of the Act is concerned, the issue\n\nneed not merit any consideration, in the light of\n\npreceding     analysis   with    regard     to   action   of   the\n\nCommission being vitiated and the jurisdiction of the\n\nCommission being upheld. The contention of filing an92appeal before the Appellate Authority in terms ofSection 111of the Act is not gone into.37. For the foregoing reasons, I hold that the\n\naction of the Commission in soliciting petitions to be\n\nfiled before it after having pre-judged the issue is in\n\nviolation of every known canon of principles of natural\n\njustice and is vitiated by bias; the jurisdiction of the\n\nCommission cannot be taken away on the plea of the\n\npetitioners that parties cannot confer jurisdiction;\n\nparties have not conferred jurisdiction, the jurisdiction\n\nis conferred by the Act and the PPA between the parties.38. In the result, I pass the following:ORDER(a)   All the writ petitions are allowed, the\n           impugned orders passed by the Commission\n           in all these cases stand quashed.(b)   These matters are remitted back to the\n           hands of the Commission for appropriate\n           resolution of the dispute bearing in mind the\n           observations made in the course of the order93with regard to the controversy brought\n              before it.(c)   The Commission shall also consider all\n              subsequent events that have taken place\n              after passage of the impugned orders, while\n              passing orders afresh, in the case now\n              remitted.(d)   Parties to the lis are at liberty to place on\n              record all such documents that would\n              advance their cause.(e)   The Commission shall consider the claims of\n              the petitioners and pass appropriate orders\n              within six months from the date of receipt of\n              a copy of this order.(f)   Interim orders granted and subsisting, if\n              any, in all these cases shall continue to\n              operate till the Commission takes up the\n              case for consideration of an interim prayer, if\n              sought for by the petitioners.(g)   All the contentions, except the ones decided\n              in this order, of both the parties are kept\n              open.Sd/-JUDGE\n\n\nbkp\nCT:MJ