- 1 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 29TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE R.NATARAJ WRIT PETITION NO. 205114 OF 2016 (GM-KEB) C/W WRIT PETITION NO. 13043 OF 2011 (GM-KEB), WRIT PETITION NO. 81808 OF 2011 (GM-KEB), WRIT PETITION NO. 26709 OF 2012 (GM-KEB), WRIT PETITION NO. 80966 OF 2012 (GM-KEB), WRIT PETITION NO. 81089 OF 2012 (GM-KEB), WRIT PETITION NO. 85561 OF 2012 (GM-KEB) IN W.P. NO.205114/2016: BETWEEN: KOGANTI POWER LIMITED PROJECT SITE AT YAPALAPARIVI VILLAGE, RAGALAPARAVI PANCHAYATH, SINDHANUR TALUK, RAICHUR DISTRICT, KARNATAKA - 584128. REP. BY ITS ADMINISTRATIVE INCHARGE, SRI. SAKHAMURU VENU S/O S.KRISHNA AGED ABOUT 50 YEARS, ADMINISTRATIVE INCHARGE, KOGANTI POWER LIMITED, PROJECT SITE AT YAPALAPARIVI VILLAGE, RAGALAPARAVI PANCHAYATH, SINDANUR TALUK, RAICHUR DISTRICT, KARNATAKA-584128. …PETITIONER (BY SRI. R.J. BHUSARE, ADVOCATE) Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS AND: 1. POWER COMPANY OF KARNATAKA LIMITED KAVERI BHAVAN, BANGALORE - 560001, KARNATAKA REP. BY ITS MANAGING DIRECTOR BENGALURU CITY 2. DEPARTMENT OF ENERGY GOVERNMENT OF KARNATAKA ROOM NO.236, 2ND FLOOR, VIKASA SOUDHA, DR. B.R.AMBEDKAR STREET, BANGALORE-560001, REP BY ITS SECRETARY BENGALURU CITY. 3. BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM) K.R. CIRCLE, BANGALORE-560001 KARNATAKA REP. BY ITS MANAGING DIRECTOR BENGALURU CITY. 4. MANGALORE ELECTRICITY SUPPLY COMPANY LIMITED CORPORATE OFFICE, PARADIGM PLAZA, A B SHETTY CIRCLE, MANAGALORE-575001, REP. BY ITS MANAGING DIRECTOR MANGALURU. 5. CHAMUNDESHWARI ELECTRICITY SUPPLY CORPORATION LIMITED VIJAYANAGAR, 2ND STAGE MYSORE, HINAKAL-570017, REP. BY ITS MANAGING DIRECTOR MYSURU. 6. GULBARGA ELECTRICITY SUPPLY COMPANY LIMITED SEDAM, GULBARGA, KARNATAKA, INDIA-585102, REP BY ITS MANAGING DIRECTOR, KALABURAGI. - 3 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 7. HUBLI ELECTRICITY SUPPLY COMPANY LIMITED CORPORATE OFFICE NAVANAGAR, P.B.ROAD, HUBBALLI-580025, REP. BY ITS MANAGING DIRECTOR DHARWAD. …RESPONDENTS (BY SRI. SRIRANGA S., SENIOR ADVOCATE FOR SRI. RAVIDNRA REDDY AND SMT. ASHWINI N., ADVOCATES FOR RESPONDENT NOS.1, 3, 6 AND 7; SRI. SHIVAPRABHU S. HIREMATH, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.2; NOTICE SERVED ON RESPONDENT NOS.4 AND 5) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-A PASSED BY THE KARNATAKA ELECTRICITY REGULATORY COMMISSION BEARING NO. N/59/15, N/78/15, N/44/16, N/45/16 AND N/46/16, BENGALURU DATED 18.08.2016 AND ETC. IN W.P. NO.13043/2011: BETWEEN: 1. RAVI KIRAN POWER PROJECTS PVT. LTD., (A COMPANY INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT, 1956) REPRESENTED BY ITS DIRECTOR HAVING ITS REGISTERED OFFICE AT PLOT NO.1071, ROAD NO.44, JUBILEE HILLS, HYDERABAD-500033, ADMINISTRATIVE OFFICE: NO.49, KHB COLONY, 5TH BLOCK, KORAMANGALA, BANGALORE-560034. 2. MR. T. RAJESH S/O T. UMAMAHESWARA RAO AGED ABOUT 34 YEARS, DIRECTOR, - 4 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS M/S RAVI KIRAN POWER PROJECTS PVT LTD., NO.49, KHB COLONY, 5TH BLOCK, KORAMANGALA, BANGALORE-560034. …PETITIONERS (BY SRI. BASAVA PRABHU PATIL, SENIOR ADVOCATE FOR SRI. PRADEEP DARAK, SRI. SHODHAN BABU A.M., AND SMT. PALLAVI SRIVASTAVA, ADVOCATES) AND: 1. STATE OF KARNATAKA DEPARTMENT OF POWER AND ENERGY, VIKASA SOUDHA, BANGALORE-560 001 REPRESENTED BY ITS SECRETARY 2. POWER COMPANY OF KARNATAKA LIMITED (PCKL) FORMERLY KNOWN AS KARNATAKA POWER TRANSMISSION CORPORATION LIMITED, CAUVERY BHAVAN, K.G. ROAD, BANGALORE-01 BY ITS MANAGING DIRECTOR 3. GULBARGA ELECTRICITY SUPPLY COMPANY LIMITED STATION ROAD, GULBARGA-585 101 REPRESENTED BY ITS MANAGING DIRECTOR …RESPONDENTS (BY SRI. SRIRANGA S., SENIOR ADVOCATE FOR SRI. RAVINDRA REDDY AND SMT. ASHWINI N., ADVOCATES FOR RESPONDENT NO.3 SRI. SHIVAPRABHU S. HIREMATH, GOVERNMENT ADVOCATE FOR RESPONDENT NO.1; NOTICE SERVED ON RESPONDENT NO.2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 25.11.2009 PASSED BY THE KARNATAKA ELECTRICITY REGULATORY COMMISSION IN OP.NO.14/08 PRODUCED AT ANNEXURE-C AND ETC. - 5 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS IN W.P. NO.81808/2011: BETWEEN: 1. KOGANTI POWER LIMITED PROJECT SITE AT YAPALAPARIVI VILLAGE, RAGALAPARAVI PANCHAYATH, SINDANUR TALUK, RAICHUR DISTRICT, KARNATAKA-584128. REP. BY ITS MANAGING DIRECTOR/CHAIRMAN SRI. K. SAMBA SIVA RAO 2. SRI. K. SAMBA SIVA RAO S/O K. RAMAIAH AGED ABOUT 54 YEARS, MANAGING DIRECTOR AND CHAIRMAN KOGANTI POWER LIMITED PROJECT SITE AT YAPALAPARIVI VILLAGE, RAGALAPARAVI PANCHAYATH, SINDANUR TALUK, RAICHUR DISTRICT, KARNATAKA-584128. …PETITIONERS (BY SRI. R.J. BHUSARE, ADVOCATE) AND: 1. THE STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY ENERGY DEPARTMENT VIKASA SOUDHA, BANGALORE-01 2. GULBARGA ELECTRICITY SUPPLY COMPANY (GESCOM) CORPORATE OFFICE, SUPER MARKET ROAD, GULBARGA REP. BY ITS MANAGING DIRECTOR …RESPONDENTS (BY SRI. SRIRANGA S., SENIOR ADVOCATE FOR SRI. RAVINDRA REDDY AND SMT. ASHWINI N., ADVOCATES FOR RESPONDENT NO.2; SRI. SHIVAPRABHU S. HIREMATH, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.1) - 6 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE OFFICIAL MEMORANDUM, DATED 31.03.2011, ISSUED BY THE RESPONDENT NO.2 BEARING NO. GESCOM/FA/DCA(F)/ AO/AAO/2010-11/44729 PRODUCED AT ANNEXURE-A AS ILLEGAL AND ETC. IN W.P. NO.26709/2012: BETWEEN: 1. RAVI KIRAN POWER PROJECTS LIMITED PROJECT SITE AT, KARNATAKA - 584128, REP. BY ITS MANAGING DIRECTOR/CHAIRMAN, ADMINISTRATIVE OFFICE: NO.49, KHB COLONY, 5TH BLOCK, KORAMANGALA, BANGALORE- 560034 2. MR. T. RAJESH S/O T. UMAMAHESWARA RAO, AGED ABOUT 34 YEARS, DIRECTOR, M/S RAVIKIRAN POWER PROJECTS PVT. LTD., NO.49, KHB COLONY, 5TH BLOCK, KORAMANGALA, BANGLAORE- 560034 …PETITIONERS (BY SRI. BASAVA PRABHU PTAIL, SENIOR ADVOCATE FOR SRI. PRADEEP DARAK, SRI. SHODHAN BABU A.M. AND SMT. PALLAVI SRIVASTAVA, ADVOCATES) AND: 1. THE STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY, ENERGY DEPARTMENT, VIKASA SOUDHA, BANGALORE - 01. - 7 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 2. GULBARGA ELECTRICITY SUPPLY COMPANY (GESCOM) CORPORATE OFFICE, SUPER MARKET ROAD, GULBARGA, REP. BY ITS MANAGING DIRECTOR. …RESPONDENTS (BY SRI. SRIRANGA S., SENIOR ADVOCATE FOR SRI. RAVIDNRA REDDY AND SMT. ASHWINI N., ADVOCATE FOR RESPONDENT NO.2; SRI. SHIVAPRABHU S. HIREMATH, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.1) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE OFFICIAL MEMORANDUM DATED 31.03.2011 ISSUED BY THE RESPONDENT NO.2 BEARING NO.GESCOM/FA/DCA(F)/AO/AAO/ 2010-11/44724 PRODUCED AT ANNEXURE-A AS ILLEGAL AND ETC. IN W.P. NO.80966/2012: BETWEEN: 1. KOGANTI POWER LIMITED PROJECT SITE AT YAPALAPARIVI VILLAGE, RAGALAPARAVI PANCHAYATH, SINDANUR TALUK, RAICHUR DISTRICT, KARNATAKA-584128. REP. BY ITS MANAGING DIRECTOR/CHAIRMAN SRI. K. SAMBA SIVA RAO 2. SRI. K. SAMBA SIVA RAO S/O K. RAMAIAH AGED ABOUT 54 YEARS, MANAGING DIRECTOR AND CHAIRMAN, KOGANTI POWER LIMITED, PROJECT SITE AT YAPALAPARIVI VILLAGE, RAGALAPARAVI PANCHAYATH, SINDANUR TALUK, RAICHUR DISTRICT, KARNATAKA-584128. …PETITIONERS (BY SRI. R.J. BHUSARE, ADVOCATE) - 8 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS AND: 1. UNION OF INDIA MINISTRY OF NEW AND RENEWABLE ENERGY, BLOCK NO.14, C.G.O. COMPLEX, LODI ROAD, NEW DELHI-110003, BY ITS PRINCIPAL SECRETARY 2. THE STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY ENERGY DEPARTMENT, VIKASA SOUDHA, BANGALORE-01 3. POWER COMPANY OF KARNATAKA LIMITED (PCKL) FORMERLY KNOWN AS KARNATAKA POWER TRANSMISSION CORPORATION LIMITED, CAUVERY BHAVAN, K.G. ROAD, BANGALORE-01 BY ITS MANAGING DIRECTOR 4. GULBARGA ELECTRICITY SUPPLY COMPANY (GESCOM) CORPORATE OFFICE, SUPER MARKET ROAD, GULBARGA - 585101 REP. BY ITS MANAGING DIRECTOR 5. INDIAN RENEWABLE ENERGY DEVELOPMENT AGENCY LIMITED (IREDAL) CORPORATE OFFICE 3RD FLOOR, AUGUST KRANTI BHAWAN, BIKAJI CAMA PLACE, NEW DELHI-110066 REP. BY ITS MANAGING DIRECTOR …RESPONDENTS (BY SRI. JAIRAJ K BUKKA, ADVOCATE FOR RESPONDENT NOS.1 AND 5; SRI. SHIVAPRABHU S. HIREMATH, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.2; SRI. KANNUR, STANDING COUNSEL FOR RESPONDENT NO.3; SRI. SRIRANGA S., SENIOR ADVOCATE FOR SRI. RAVINDRA REDDY AND SMT. ASHWINI N., ADVOCATES FOR RESPONDENT NO.4) - 9 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS 1 AND 2 TO HOLD AN ENQUIRY IN MATTER OF REDUCING THE TARIFF OF, BIOMASS BASE POWER GENERATING COMPANY AND THE ADVERSE IMPACT ON THEIR WORKING AND FURTHER, ISSUE SUCH ORDER OR DIRECTION TO ACHIEVE THE OBJECT OF THE ELECTRICITY ACT AND ETC. IN W.P. NO.81089/2012: BETWEEN: 1. KOGANTI POWER LIMITED PROJECT SITE AT YAPALAPARIVI VILLAGE, RAGALAPARAVI PANCHAYATH, SINDANUR TALUK, RAICHUR DISTRICT, KARNATAKA-584128. REP. BY ITS MANAGING DIRECTOR/CHAIRMAN SRI. K. SAMBA SIVA RAO 2. SRI. K. SAMBA SIVA RAO S/O K. RAMAIAH AGED ABOUT 54 YEARS, MANAGING DIRECTOR AND CHAIRMAN, KOGANTI POWER LIMITED, PROJECT SITE AT YAPALAPARIVI VILLAGE, RAGALAPARAVI PANCHAYATH, SINDANUR TALUK, RAICHUR DISTRICT, KARNATAKA-584128. …PETITIONERS (BY SRI. R.J. BHUSARE, ADVOCATE) AND: 1. THE STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY, ENERGY DEPARTMENT, VIKASA SOUDHA, BANGALORE-01. - 10 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 2. GULBARGA ELECTRICITY SUPPLY COMPANY (GESCOM) CORPORATE OFFICE, SUPER MARKET ROAD, GULBARGA-585101, REP. BY ITS MANAGING DIRECTOR. …RESPONDENTS (BY SRI. SHIVAPRABHU S. HIREMATH, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.1; SRI. SRIRANGA S., SENIOR ADVOCATE FOR SRI. RAVINDRA REDDY AND SMT. ASHWINI N., ADVOCATE FOR RESPONDENT NO.2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE GOVERNMENT ORDER NO.EN 2 PPC 2012 BANGALORE DATED 27TH JANUARY 2012 PRODUCED AT ANNEXURE-A. AND ETC. IN W.P. NO.85561/2012: BETWEEN: 1. KOGANTI POWER LIMITED PROJECT SITE AT YAPALAPARIVI VILLAGE, RAGALAPARAVI PANCHAYATH, SINDANUR TALUK, RAICHUR DISTRICT, KARNATAKA-584128. REP. BY ITS MANAGING DIRECTOR/CHAIRMAN SRI. K. SAMBA SIVA RAO 2. SRI. K. SAMBA SIVA RAO S/O K. RAMAIAH AGED ABOUT 54 YEARS, MANAGING DIRECTOR AND CHAIRMAN, KOGANTI POWER LIMITED, PROJECT SITE AT YAPALAPARIVI VILLAGE, RAGALAPARAVI PANCHAYATH, SINDANUR TALUK, RAICHUR DISTRICT, KARNATAKA-584128. …PETITIONERS (BY SRI. R.J. BHUSARE, ADVOCATE) - 11 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS AND: 1. THE STATE OF KARNATAKA ENERGY DEPARTMENT, VIKASA SOUDHA, BANGALORE-01 BY ITS PRINCIPAL SECRETARY 2. GULBARGA ELECTRICITY SUPPLY COMPANY LIMITED (GESCOM) CORPORATE OFFICE, SUPER MARKET ROAD, GULBARGA-585101, REP. BY ITS MANAGING DIRECTOR. 3. POWER COMPANY OF KARNATAKA LIMITED (PCKL) KPTCL BUILDING, 5TH FLOOR KAVERI BHAVAN, BANGALORE-01, REP. BY ITS MANAGING DIRECTOR 4. BANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (BESCOM) CORPORATE OFFICE, K.R.CIRCLE, BANGALORE-01, REP BY ITS MANAGING DIRECTOR 5. MANGALORE ELECTRICITY SUPPLY COMPANY LIMITED (MESCOM) PARADIGM PLAZA, PANDESWARA, MANGALORE-570134, REP. BY ITS MANAGING DIRECTOR 6. CHANMUNDESHWARI ELECTRICITY SUPPLY CORPORATION LIMITED (CESC) NO.927, L.J. AVENUE COMMERCIAL COMPLEX, NEW KANTARAJ ROAD, SARASWATHIPURAM, MYSORE-570001. REP. BY ITS MANAGING DIRECTOR 7. HUBLI ELECTRICITY SUPPLY COMPANY LIMITED (HESCOM) CORPORATE OFFICE, NAVANAGAR, P.B.ROAD, HUBLI-580001, REP. BY ITS MANAGING DIRECTOR - 12 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 8. THE STATE LOAD DISPATCH CENTRE ANAND RAO CIRCLE, BANGALORE-01, REP BY ITS CHIEF ENGINEER …RESPONDENTS (BY SRI. SHIVAPRABHU S. HIREMATH, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.1; SRI. SRIRANGA S., SENIOR ADVOCATE FOR SRI. RAVINDRA REDDY AND SMT. ASHWINI N., ADVOCATES FOR RESPONDENT NOS.2 AND 5; VIDE ORDER DATED 20.11.2012, NOTICE TO RESPONDENT NOS.3 TO 6 AND 8 HELD SUFFICIENT NOTICE SERVED ON RESPONDENT NO.7) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-A PASSED BY THE RESPONDENT NO.2 GULBARGA ELECTRICITY SUPPLY COMPANY LIMITED (GESCOM) DATED 29.08.2012 BEARING NO. GESCOM/CE(CP)/EE(RA)/2012-13/F-20574-80. THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDER ON 11.11.2024 AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING: CAV ORDER W.P.No.205114/2016 is filed by the petitioner challenging the common order bearing Nos.N/59/15, N/78/15, N/44/16, N/45/16 and N/46/16 dated 18.08.2016 passed by the Karnataka Electricity Regulatory Commission, Bengaluru, by which, it directed the petitioners in O.P.Nos.33/2015, 41/2015, 34/2016, 35/2016 and 36/2016 to pay Rs.4.67 per kilowatt - 13 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS hour (KWH) to the generators, who had supplied electricity. The petitioner has also challenged the consequent demand notice bearing No.SEE(C & RP)/DCA (EBC)/AO(EBC)/F- 76B/2016-17/EYS-1(57 NOTICE) dated 14.09.2016 issued by the respondent No.4 demanding Rs.7,08,129/- being the excess amount received by it in respect of the energy supplied between 16.09.2015 and 31.05.2016 pursuant to the Government Order under Section 11 of the Electricity Act, 2003 (henceforth referred to as ‘Act, 2003’). The petitioner has also challenged the demand notice bearing No.GM(PP)/DGM(F&C)/BESCOM/BC-39/6180 dated 07.09.2016 issued by the respondent No.3. The petitioner has sought for a direction to the respondents to consider the bill raised by it dated 02.09.2016 and to grant such compensation due to closure of the unit of the petitioner on account of the practices adopted by the respondent No.6. 2. The petitioners in W.P.No.81808/2011 have challenged an Official Memorandum bearing No.GESCOM/FA/DCA(F)/AO/AAO/2010-11/44729 dated 31.03.2011 issued by the respondent No.2 by which, it directed - 14 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS the petitioners to pay a sum of Rs.1,42,51,499/- being the excess paid for the electricity supplied during April, 2010 to June, 2010 in view of an Order of the Karnataka Electricity Regulatory Commission dated 24.03.2011. The petitioners have also challenged the common order passed by the Karnataka Electricity Regulatory Commission dated 24.03.2011 in O.P.Nos.16/2010, 45/2010, 17/2010, 19/2010, 23/2010, 40/2010, 41/2010 and 49/2010. The petitioners have sought for an injunction to restrain the respondent No.2 from making any claim in respect of the energy supplied during April, 2010 to June, 2010. 3. In W.P.No.80966/2012, the petitioners have sought for a direction to the respondent Nos.1 and 2 to hold an inquiry regarding the reduction of price for electricity generated by biomass power generating companies and adverse impact on their working and further issue such other order or direction to achieve the object of the Act, 2003. The petitioners have also challenged the order bearing No.GESCOM/FA/DCA(F)/AO/AAO/2010-11/23026-27 dated 27.10.2010 passed by the respondent No.4 refusing to restore - 15 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS the tariff under the Power Purchase Agreement dated 09.03.2001. They have also sought for quashing the endorsement issued by the respondent No.2 bearing No.EN/32/NCE/2011 dated 15.09.2011, by which it was held that the common order passed by the Karnataka Electricity Regulatory Commission deciding the tariff is binding upon the petitioners also. The petitioners have sought for a declaration that the Supplemental Power Purchase Agreement dated 28.03.2006 entered into between the petitioner No.1 and respondent No.4 as void and to direct respondent Nos.3 and 4 to restore the tariff under the Power Purchase Agreement dated 09.03.2001 and to pay the arrears of the cost of the energy supplied to the respondent No.4. 4. W.P.No.81089/2012 is filed to quash the Government Order bearing No.EN/2/PPC/2012 BANGALORE, dated 27.01.2012 fixing the tariff at Rs.5.30 per unit subject to determination of final tariff by the Karnataka Electricity Regulatory Commission. The petitioners have also challenged the letter bearing No.CEE/SLDC/EE/AEE3/139 dated 28.01.2012 refusing to grant open access and to inject the - 16 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS electricity generated to the State grid. The petitioners have sought for a direction to the respondents to pay tariff as per the rates prevalent under the open access scheme. 5. In W.P.No.85561/2012, the petitioners have challenged an order bearing No.GESCOM/CE(CP)/EE(RA)/2012- 13/F-20574-80 dated 29.08.2012 passed by the respondent No.2 approving to pay Rs.3.410 per unit upto 5.4 Megawatt (MW) and Rs.3.135 per unit above 5.4 MW to the petitioner No.1 and to deduct a sum of Rs.1,40,80,606/- from the bills of the petitioner No.1. The petitioners have also sought for a direction to the respondents to settle the pending bills towards the electricity supplied to them and to pay compensation on account of the closure of the unit. 6. W.P.No.13043/2011 is filed challenging an order dated 25.11.2009 passed by the Karnataka Electricity Regulatory Commission in O.P.No.14/2008 holding that the Supplemental Agreement executed between the petitioners and the respondents was not under duress and therefore, valid and binding. The petitioners have also challenged an order dated 06.01.2011 passed by the Karnataka Electricity Regulatory - 17 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Commission in R.P.No.5/2010 by which, the review petition filed by petitioner No.1 was also dismissed. The petitioners have challenged an order bearing No.KPTCL/B35/SEE (P & M)/AEEE4/4495-05 dated 05.07.2003 terminating the Power Purchase Agreement dated 10.06.2002 and they have sought for a declaration that the Supplemental Power Purchase Agreement is null and void and to direct the respondents to pay for the power supplied as per the tariff agreed under the PPA. 7. W.P.No.26709/2012 is filed challenging an Official Memorandum bearing No. GESCOM/FA/DCA(F)/AO/AAO/2010- 11/44724 dated 31.03.2011 passed by the respondent No.2 directing the petitioners to pay Rs.1,39,06,254/- being the excess paid for the power supplied between April, 2010 to June, 2010 as per the order dated 24.03.2011 passed by the Karnataka Electricity Regulatory Commission. The petitioners have also challenged an order dated 24.03.2011 passed by the Karnataka Electricity Regulatory Commission in O.P.No.16/2010. The petitioners have sought for a direction to the respondent No.2 not to make any claim in respect of the energy supplied between April, 2010 to June 2010 and to - 18 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS refund Rs.1,26,11,653/- along with interest at SBI prime lending rates. 8. In these sets of petitions, W.P.Nos.205114/2016, 81808/2011, 80966/2012, 81089/2012 and 85561/2012 are filed by M/s. Koganti Power Limited and its Director, who shall henceforth be referred to as “Koganti”, while W.P.No.13043/2011 and W.P.No.26709/2012 are filed by Ravi Kiran Power Projects Limited, who shall henceforth be referred to as “Ravi Kiran”. Similarly, the words “Power Purchase Agreement”, “Supplemental Power Purchase Agreement”, “Karnataka Electricity Regulatory Commission”, “Karnataka Power Transmission Company Limited”, “Electricity Supply Company”, “Gulbarga Electricity Supply Company” appearing henceforth shall be read in short as “PPA”, “SPPA”, “KERC”, “KPTCL”, “ESCOM/s”, “GESCOM” respectively. 9. (i) Koganti was in the business of generation of electricity using biomass and had entered into a PPA dated 09.03.2001 with the KPTCL for a period of twenty years, agreeing to purchase 6 MW of electricity generated at its plant at Valkamdinni Village, Sindanur Taluk, Raichur District. As per - 19 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS the guidelines issued by the Ministry of Non-Conventional Energy Sources, Government of India and on the basis of the base price of electricity during the year 1994-95, it fixed the price of electricity generated, for the first ten years, at the rate of 2.25/- per kwh delivered at the metering point subject to escalation at the rate of 5% per annum over the last paid tariff. For the next ten years, the price had to be mutually agreed upon and in case of any disagreement, Koganti was entitled to sell the electricity generated to third parties, subject to payment of wheeling and banking charges. (ii) After the formation of electric supply companies in Karnataka, Koganti was assigned to GESCOM, who unilaterally terminated the PPA on 05.07.2003, which was questioned by Koganti in W.P.No.46781/2003, where an interim order of stay of termination was granted. However, Koganti claimed that GESCOM assured that it would reconsider the cancellation of PPA and therefore, it withdrew the writ petition. Koganti alleges that on 28.03.2006, GESCOM forced it to sign a SPPA for enhanced capacity of 7.5 MW but at a substantially reduced rate of Rs.3.10 per unit for 6 MW and Rs.2.85 per unit for the - 20 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS balance energy of 1.5 MW with annual escalation of 2%. Koganti contends that it continued to supply electricity to GESCOM and at the same time, was requesting GESCOM and the State Government to resolve the anomaly created by the SPPA, which fixed a lesser price for the electricity generated. (iii) Koganti contends that it filed W.P.84322/2010 for a direction to the State Government to intervene and set right the anomaly. Koganti contends that this Court directed the State Government to offset the adverse impact on it and in the light of the promises made by the Government under the Energy Policy for 2009-14. (iv) Koganti contends that during the summer of 2010, the State Government faced acute shortage of power and therefore, requested the generating companies to increase the power supply to tide over the crisis. The respondent/State invoked Section 11 of the Act, 2003 and issued an order dated 03.04.2010 directing the generating companies to supply power. This order shall henceforth be referred as "First Order u/s 11". The generating companies demanded special tariff at the rate of Rs.5.60 per kwh, which after due deliberation was - 21 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS agreed at Rs.5/- per kwh. However, option was reserved to the generating companies/licensees to seek for such tariff, which would be just to offset the adverse financial impact as provided under Section 11(2) of the Act, 2003. (underlining by Court) (v) Koganti contends that in order to comply the First Order u/s 11, it made special arrangement to generate maximum power by procuring raw material at a higher rate. It claimed that due to the shortage of raw material such as juliflora and other agricultural waste, it purchased coal to generate electricity. The GESCOM after receiving the power generated, had released the payment at the rate of Rs.5/- per unit to Koganti, which in turn was used up for paying the supplier/s of raw material. Neither Koganti nor GESCOM filed any petition before the Commission to offset the adverse impact due to fixation of price at Rs.5/- per unit of electricity generated. (underlining by Court) (vi) In the meanwhile, an Association of Sugar Mills and other generators filed petitions before the KERC to determine the tariff for the electricity generated and supplied as per the First Order u/s 11. The KERC in terms of its common order - 22 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS dated 24.03.2011, held that the generators with existing PPAs are bound to supply power at rates specified in agreement to the extent of supplies committed in the PPAs and the higher rate of Rs.5/- per kwh shall be applicable only if the supplies are made over and above the supply obligations agreed under the PPAs. It was also held that in respect of generators, who do not have a PPA between April and June, 2010, they shall be paid Rs.5/- per kwh. (vii) Following the order of KERC dated 24.03.2011 referred supra, the State Government issued a communication dated 28.04.2011 calling for a report regarding the recovery to be made from generators for the period 01.04.2010 to 01.06.2010. Koganti claims that the respondents issued an endorsement stating that they had adjusted the difference from the amounts payable to it in the bills payable by GESCOM during January 2011. (viii) Koganti contends that the recovery of excess price paid, based on the order dated 24.03.2011 passed by the KERC is illegal as neither it nor GESCOM had filed any petition or were parties before KERC to determine the adverse financial - 23 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS impact on the generation/supply or purchase of electricity. Therefore, the order passed by KERC on a petition filed by M/s. Sathavahana Ispat Limited cannot be applied Koganti. It is thus contended that the impugned Official Memorandum directing the recovery of the excess paid from Koganti is without the authority of law. It is further, contended that the commission does not have the power to adjudicate the tariff at the request of the licencee or the supplying company. (ix) In W.P.80966/2012, Koganti contends that it was forced by GESCOM to enter into SPPA dated 28.03.2006, whereunder Koganti was compelled to supply electricity to GESCOM at Rs.3.10 per unit for 6 MW and Rs.2.85 per unit for the balance energy of 1.5 MW with annual escalation of 2%, which resulted in loss and the power generation had to be stopped. After expiry of 10 years from the date of PPA, Koganti sought price of Rs.5.15 per unit, which was the price per unit as per PPA dated 09.03.2001 after escalation. Later, Koganti submitted letters dated 22.12.2011 and 09.01.2012 withdrawing its request for higher tariff and sought NOC for private sale of power through exchange by letter dated - 24 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 11.11.2011. The permission was granted by GESCOM on 24.01.2012 and NOC was issued on 27.01.2012. Koganti contends that M/s. Indira Power Energies, M/s. Koppal Green Pvt Ltd, M/s. Powernic, who were also generating electricity from biomass were given a higher price. Similarly, M/s. R.K.Power Gen Pvt. Ltd., had challenged the cancellation of its PPA before KERC in O.P.No.9/2006 and that KERC held that cancellation of PPA was invalid and ESCOM was directed to pay the electricity charges as per PPA. It is claimed that the respondents had accordingly ordered payment of Rs.3.32 per unit to M/s. R.K. Power Generation Pvt. Ltd., and steps were taken to pay the balance. Koganti contends that on coming to know of the different tariff offered to the different generating companies using the same fuel, it had submitted a representation dated 29.12.2009, followed by further representations dated 06.03.2010, 08.04.2010, 30.04.2010, 17.09.2010, 29.10.2010. It is contended that the Karnataka Renewable Energy Policy 2009-14, provided for offsetting the negative factors faced by biomass projects by extending enabling tariff atmosphere. It is therefore, contended that Koganti was entitled to be treated similarly as in the case of - 25 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS M/s. Indira Power Energies, M/s. Koppal Green Pvt Ltd, M/s. Powernic and M/s. R.K.Power Gen Pvt Ltd and that respondent Nos.3 and 4 cannot discriminate in matters of fixation of price. It is contended that the order passed in favour of M/s. Powernic Ltd., was questioned before the Appellate Tribunal. The Tribunal held that the termination of PPA was bad but directed the parties to be governed by the SPPA. Therefore, it contended that it was entitled to charges as per PPA dated 09.03.2001. The State Government considered the representations of Koganti and issued an endorsement dated 15.09.2011 rejecting the request of Koganti wherein it was inter alia stated that “The order of KERC in respect of specific projects are applicable to them only. If you have any grievance with the rate fixed by the KERC, you may approach KERC or ATE”. Koganti is therefore, before this Court for restoration of tariff as per PPA and to quash the endorsement dated 15.09.2011 and to declare the SPPA as void and to pay arrears of electricity supplied as per PPA rates. (x) In W.P.No.81089/2012, Koganti contends that after the expiry of ten years of PPA dated 09.03.2001, the GESCOM - 26 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS refused to fix enabling tariff and there was no mutual agreement about the price. Koganti did not renew the PPA and addressed a communication dated 22.12.2011 terminating the PPA and withdrew the letter submitted by it dated 13.12.2011 to the KERC for revision of tariff. Koganti then made a request for grant of ‘no objection’ for sale of power to third parties through the exchange. The GESCOM issued a ‘no objection’ to have open access vide its communication dated 24.01.2012 and GESCOM also issued standing clearance/NOC dated 27.01.2012 authorising Koganti to make power available to the State unit or to interstates submission to power exchange. (xi) On the same day, an order was issued by the State under Section 11 of the Act, 2003 requiring all generating companies to operate and maintain their plants at optimum installed capacity and export the energy generated to the State grid. The tariff fixed under the said order was Rs.5.30 per unit subject to approval by the KERC. Koganti contends that in view of this order, it was compelled to supply power at the rate of Rs.5.30 per kwh though at that point in time, the State Government was importing power from the open market at - 27 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Rs.7/- to Rs.10/- per unit. Koganti therefore, claimed that it was deprived of the opportunity to sell power in the open market at a higher price. Koganti contends that Section 11 of the Act, 2003 is illegal and arbitrary and violates Article 14 of the Constitution of India. It also contended that the State Government while fixing the “price” of electricity generated should not have subjected it to the approval by KERC as the State Government is not bound to fix the tariff as per the direction of KERC. It is also contended that the fixation of tariff by the State at Rs.5.30 per unit is without any basis. It is claimed that there were eight biomass power generating companies in the State, of which only four were functioning and all others had shut down due to the discriminatory treatment meted to them in the matter of fixing the price. Koganti has therefore, challenged the Government Order dated 27.01.2012 issued under Section 11 of the Act, 2003 (henceforth referred to as "Second Order u/s 11") and the consequent letter dated 28.01.2012 to inject the power generated to the State grid. (xii) In W.P.No.85561/2012, Koganti contends that pursuant to the open access permission granted to it, it had - 28 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS injected electricity to the grid between 29.01.2012 and 31.01.2012. In view of the Second Order u/s 11, Koganti supplied the generated electricity to the State grid at Rs.5.30 per unit. However, by an endorsement dated 17.05.2012, Koganti was informed that the energy charges would be Rs.3.40 per unit upto 20.04.2012, which apparently was on the assumption that Koganti had a PPA upto 20.04.2012. Koganti challenged this endorsement in W.P.No.81900/2012, which was disposed off directing the respondent Nos.1 to 7 herein to consider the claim towards payment of the power supply from February 2012 to April, 2012. Consequent thereto, GESCOM passed an order dated 29.08.2012 fixing the rate at Rs.3.410 per unit upto 5.4 MW and Rs.3.135 per unit above 5.4 MW and to deduct Rs.1,40,80,606/- from the bills payable. Koganti is therefore, before this Court challenging the above and has sought further reliefs. (xiii) In W.P.No.205114/2016, Koganti contends that the State Government again issued an Order under Section 11 of the Act, 2003 on 16.09.2015 (henceforth referred to as "Third Order u/s 11") offering a provisional price of Rs.5.08 per unit - 29 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS subject to determination of final tariff by KERC. Koganti submitted several representations that the tariff offered was low as the Government of Telangana was paying Rs.7.50 per unit and raw material was procured by those units at the rate of Rs.3,700/- per tonne and therefore, farmers were selling the raw material to the unit in Telangana. Koganti claimed that its plant was situate 70 kilometers away from Telangana and therefore, its operations were seriously affected. The State Government issued an order dated 30.05.2016 under Section 11 of the Act, 2003 withdrawing the Third Order u/s 11. Koganti contends that it requested the State Government to release the pending bills by various ESCOMs. However, instead of paying the pending bills, MESCOM and BESCOM called upon it to pay Rs.7,08,129/- and Rs.43,92,931/- in view of the tariff fixed by the KERC at Rs.4.67 per unit. Koganti is therefore, before this Court challenging the order passed by the KERC as well as the demand raised by MESCOM and BESCOM. 10. (i) Ravi Kiran has filed W.P.No.13043/2011 to quash the order dated 25.11.2009 passed by KERC in O.P.No.14/2008 and the consequent order dated 06.01.2011 in - 30 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS R.P.No.5/2010 and also to quash the order dated 05.07.2003 passed by KPTCL terminating the PPA dated 10.06.2002. It has also sought to declare the SPPA dated 14.11.2006 as void. Ravi Kiran has also sought for a direction to the respondents to make the payment towards power supply as per the tariff agreed under the PPA dated 10.06.2002 with interest. (ii) Ravi Kiran contends that it is a private limited company involved in the business of generating electricity and had established a 6 MW biomass generating station at Marlanahalli, Gangavathi Taluk, Koppal District. After the generating station was established in all respects, a draft PPA was placed for approval of KERC, which granted approval on 28.05.2002, pursuant to which a PPA was entered into between Ravi Kiran and KPTCL on 10.06.2002. It contended that as on the date of the PPA, the guidelines issued by the Ministry of Non-Conventional Energy Sources dated 13.09.1993 for fixation of price, was holding the field. Therefore, the KERC while approving the tariff, had clearly mentioned that the tariff fixed is based on the aforesaid guidelines. On coming into force of the Act, 2003, all applicable laws relating to supply, tariff and - 31 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS reforms commission were subsumed. Ravi Kiran contends that KERC, constituted under the Act, 2003, is only required to regulate generation, distribution and supply of power. The Regulatory Commission is empowered to issue direction to avoid any adverse effect on competition in generation of electricity and to perform such other function as is prescribed. While fixing the tariff, the KERC is required to ensure that the generating company recovers the cost incurred in generating power along with certain percentage of profits. Ravi Kiran contends that there was disparity and discrimination in fixing tariff, as a result, its biomass power project was affected. Ravi Kiran contends that the Karnataka Renewable Energy Development Limited (KREDL) had sanctioned permission for enhancing its installed capacity from 6 MW to 7.5 MW to ensure capacity and viability of the project, which was based on the tariff fixed under the PPA. Ravi Kiran had obtained financial assistance of Rs.20.80 crores from State Bank of Indore and Housing and Urban Development Corporation Limited (HUDCO). Ravi Kiran claimed that it made an investment of about Rs.33 crores based on the tariff agreed under the PPA. However, the KPTCL unilaterally terminated the PPA on 05.07.2003 without - 32 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS disclosing any reason but called upon Ravi Kiran to enter into a fresh agreement on the terms prescribed by it and at modified reduced rates. Ravi Kiran claimed that the termination was void as the KPTCL could not have terminated the PPA unilaterally without approaching the KERC and without issuing a prior notice. Ravi Kiran therefore, challenged the termination before the KERC in O.P.No.45/2003 but withdrew it, with liberty to approach again. Ravi Kiran then filed W.P.No.11266/2004 challenging the termination of the PPA. This Court granted an order of stay on 12.04.2004 and suspended the termination of the PPA. Ravi Kiran claimed that despite the interim stay, the respondents were not willing to pay the price as per the PPA and showed their dominance in the contract. Ravi Kiran contends that KPTCL insisted it to supply power at reduced tariff. Ravi Kiran contends that since the KPTCL was the only agency at that point in time to purchase power in the State, it had no other option than to succumb to the domineering position of the KPTCL. GESCOM, to which Ravikumar was assigned after establishment of ESCOMs in the State, addressed a letter dated 16.11.2006 to Ravi Kiran stating that the SPPA was approved by KERC on 09.01.2006. A statement - 33 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS was made by KPTCL in W.P.No.11266/2004 that the issue is squarely covered by the judgment of the Division Bench in W.A.No.3961/2005 and other connected cases. Accordingly, W.P.No.11266/2004 was disposed off reserving liberty to Ravi Kiran to approach KERC, if it was aggrieved by the unilateral termination of PPA. Ravi Kiran therefore, filed O.P.No.14/2008 before the KERC under Section 86 of the Act, 2003 challenging termination of the PPA and the illegality of the SPPA. The KERC rejected the petition in terms of the order dated 25.11.2009. Ravi Kiran thereafter, filed a review petition in R.P.No.5/2010 which too, was rejected by an order dated 06.01.2011. Ravi Kiran contends that it had suffered huge revenue loss on account of the cancellation of the PPA resulting in pushing the unit to the brink of closure. It also contended that about nine similarly situated biomass power generators in the State of Karnataka had entered into SPPAs, whereunder, different tariffs were fixed after termination of the PPAs. Therefore, it contends that KPTCL had acted arbitrarily and discriminated amongst equals. Ravi Kiran is therefore, before this Court challenging the orders of KERC as well as the cancellation of PPA and for declaration that SPPA is void ab initio. Ravi Kiran contends that - 34 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS though an appeal is provided under Section 111 of the Act, 2003, it claims an appeal filed by M/s. Poweronics Ltd., and others in Appeal No.111/2007 challenging a similar order passed by KERC, was dismissed in terms of an order dated 12.01.2009. Therefore, it contends that it would be a futile exercise to appeal before the Appellate Authority. (iii) In support of its contentions, Ravi Kiran has claimed that PPA was entered into and the tariff was agreed based upon the price fixed by the Government of India under Section 3 of the Act, 2003. Therefore, it contends that the unilateral reduction of the price in SPPA was violative of Section 3 of the Act, 2003. It also contended that the termination of PPA is illegal, arbitrary and violative of Article 14 of the Constitution of India as the same was done without any rhyme or reason and without issuing any notice. It contended that SPPA was the result of the dominating position of the KPTCL as it was the only agency that could purchase power and transmit it to the Central grid. It contended that it had already invested substantial sums of money in the project and therefore, every day's delay added to the loss as the power generated could not - 35 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS be stored and the employees engaged in the unit had to be paid their salaries/wages. (iv) Ravi Kiran contended that it has a right to recover the cost of generation and some amount of profit over it and the tariff should be fixed by factoring the above. It contends that its balance sheet would demonstrate beyond doubt that it was compelled to supply power at a rate far below the operating cost. Therefore, Ravi Kiran contended that the KERC committed a grave error in rejecting its claim. (v) Ravi Kiran also contended that PPA and the rates prescribed under the PPA were approved by the KERC and therefore, KERC should not have approved the reduced rates in SPPA. Thus, it contended that the KERC acted in violation of the purpose of its constitution. (vi) Ravi Kiran also contended that it legitimately expected a fair deal at the hands of the respondents and also expected that the respondents would stick to the PPA as well as the price agreed therein. Thus, it contends that the KERC failed to take note of these facts but arbitrarily dismissed the petition. - 36 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 11. (i) Ravi Kiran has also filed W.P.No.26709/2012 challenging an Official Memorandum dated 31.03.2011 issued by the GESCOM ordering the recovery of Rs.1,39,06,254/- being the difference of the rate prescribed by the Government of Karnataka (Rs.5/- per kwh) and the PPA rates based on the order passed by the KERC in O.P.No.16/2010 dated 24.03.2011. Ravi Kiran has sought for quashing the order dated 24.03.2011 passed by the KERC in O.P.No.16/2010 and sought for an order to restrain the GESCOM from making any claim in respect of the energy supplied between April to June 2010 and to refund Rs.1,26,11,653/- along with interest at SBI prime lending rate plus 2% at which banks lend working capital. (ii) Ravi Kiran contends that the State Government faced acute shortage of power during summer of 2010 and requested the generating companies to increase the power supply and assist the Government in meeting the shortage of power. The State Government invoked Section 11 of the Act, 2003 and issued a direction to the generating companies to increase the generation and supply to the State grid. The State - 37 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Government had fixed a tariff of Rs.5/- per kwh and reserved liberty to the generating companies to approach the KERC to offset adverse financial impact on the generating company as provided under Section 11(2) of the Act, 2003. Ravi Kiran fell in line and made all arrangements to generate maximum power by procuring raw materials at a higher rate. GESCOM after receiving the power, calculated the tariff payable at Rs.5/- per kwh and released the amount to Ravi Kiran, which was appropriated towards payment of the raw material cost and other outgoings. Ravi Kiran contends that it did not approach the KERC to offset the adverse financial impact and neither did the licencing nor supply company approach the KERC. On the contrary, another generating company approached the KERC for payment of higher tariff over and above Rs.5/-. GESCOM was arrayed as one of the respondents. The KERC passed an order directing the GESCOM to pay tariff at Rs.5/- only in respect of supply of electricity over and above the average supply during April, May and June of the previous three years. Accordingly, GESCOM issued an order re-calculating the tariff paid during April to June, 2010 and adjusted a sum of Rs.1,26,11,653/-, which allegedly was the excess paid to Ravi - 38 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Kiran as per the order passed in O.P.No.19/2010. Ravi Kiran is therefore, before this Court challenging the said order as well as the appropriation of the charges by the GESCOM. (iii) In support of this writ petition, Ravi Kiran contended that it was not a party to O.P.No.19/2010 and it was not interested in offsetting the adverse financial impact on it. It claimed that even the GESCOM did not approach the KERC to offset the adverse financial impact on the biomass generators. It therefore, contended that the order passed in O.P.No.19/2010 could not be the basis to reduce the tariff in so far as Ravi Kiran is concerned. It contended that while fixing the tariff, there are various facts and circumstances, such as the availability of raw material, labour, transportation cost etc., and Ravi Kiran did not have an opportunity to place its case before the KERC. Thus, Ravi Kiran contends that the GESCOM has adopted “One size fits all” policy to apply the order passed in O.P.No.19/2010 to Ravi Kiran. Further, it is contended that the power under Section 11(2) of the Act, 2003 is to offset the adverse financial impact upon the generating company and therefore, any adjudication at the instance of the respondent - - 39 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS State or the supply companies would be without jurisdiction and therefore, the impugned order falls foul of Section 11(2) of the Act, 2003. It is also contended that the KERC has proceeded on an erroneous assumption that it is required to adjudicate and fix the tariff as provided under Section 62 read with Section 86 of the Act, 2003 which is not the case. It is further contended that the State Government has fixed the tariff at Rs.5/-per kwh taking into various consideration such as the cost of production, the rates at which energy was traded in the open market etc., Therefore, it contends that while determining the adverse financial impact, the KERC was bound to verify whether there was any need for upward fixation of the tariff and not reduce it to the disadvantage of the generating companies. (iv) It is also contended that the State Government had extended the promise to pay energy charges at Rs.5/- per kwh for the supply and after consuming the power, the GESCOM cannot go back on the commitment made by the state Government. Therefore, it contended that the State - 40 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Government and its instrumentalities had denigrated the promise made to it. 12. (i) The contesting respondent - GESCOM opposed W.P.No.81808/2011 contending that the writ petition is not maintainable and the appropriate remedy is to approach the KERC, if Koganti claims that its adverse financial impact has to be reworked as it is the KERC, which has to fix appropriate compensation. It is further contended that as per the common order dated 24.03.2011, the KERC in compliance with the Government Order dated 06.04.2010 fixed the price of electricity to biomass generators. It is contended that the generators with existing PPAs are therefore, obliged to supply power at rates specified in the agreement to the extent of the supplies committed in the PPA and the higher rate of Rs.5/- per kwh shall be applicable only if the supplies are made over and above the normal PPA obligation. It contended that the KERC ordered that for determining the normal supply obligation of the generators, ESCOMs shall take into account the quantum of power supplied by them during April, May and June, 2010 and any supplies made in excess of the average supplies of the last - 41 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS three years shall be eligible for payment at Rs.5 per kwh. It is contended that GESCOM is implementing the orders of the KERC and issued an Official Memorandum determining the power supplied by Koganti during April, May, June, 2010 and accordingly, re-calculated the amount paid in excess, during the said period and it was recovered by adjusting the future payments due to Koganti. It is contended that if Koganti is aggrieved by the order of the KERC, it is bound to approach the KERC for review of the order or challenge the same in appeal before the Appellate Tribunal under Section 111 of the Act, 2003. It is also contended that the order dated 24.03.2011 passed by the KERC was upheld by APTEL in Appeal Nos.141/2011, 142/2011 and 10/2012. It is also contended that the ESCOMS are not required to seek approval in each case and a common application filed against all generators is sufficient enough for the KERC to pass an order determining the price for each type of generator. It is contended that GESCOM had submitted letters to State that the generators with subsisting PPAs may themselves approach the KERC with relevant petitions and justification for higher tariff. - 42 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (ii) It is contended that the KERC is entitled to fix the minimum and maximum tariff under Section 62 of the Act, 2003 for supply of electricity on a short-term basis upto one year and therefore, the claim of the Koganti that the KERC is not entitled to fix the tariff downwards than what was offered by the State Government is incorrect. Therefore, it is contended that the order dated 24.03.2011 passed by the KERC is binding upon Koganti. 13. (i) In so far as the relief sought for in W.P.No.80966/2012, GESCOM has filed its statement of objections contending that Koganti had entered into a PPA on 09.03.2001 for a period of twenty years to supply energy from its 6.75 MW biomass project. However, the said PPA was terminated by KPTCL vide letter dated 05.07.2003 with immediate effect. It was also intimated that if the firm intended to continue to develop the project and sell power, it was instructed to enter into a fresh agreement with tariff at Rs.2.80 per kwh with an annual escalation of 2% base tariff of Rs.2.80 per kwh. This tariff was applicable for the next ten years after which the tariff would be based on operating cost and some - 43 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS incentives. Koganti challenged this order of termination in W.P.No.46781/2003 and this Court granted an interim order on 18.11.2003 staying the termination till disposal of the writ petition. It is contended that the State Government by an Order dated 10.06.2005 barred KPTCL from trading in electricity and as such, the PPAs were assigned to ESCOMS based on geographical area and Koganti was assigned to GESCOM. During the pendency of W.P.No.46781/2003, negotiations were held and it was mutually agreed to execute a SPPA for enhanced capacity and with tariff that was mutually accepted. After the negotiation, the parties agreed to reinstate the PPA and Koganti agreed to sell electricity at the rate of Rs.3.10 per unit for proportionate energy exported corresponding to the exportable earlier capacity of 5.4 MW and at the rate of Rs.2.85 per unit for the balance energy over and above 5.4 MW upto 6.75 MW with escalation at 2% per annum. It is contended that Koganti accepted this settlement and informed GESCOM by a letter dated 02.09.2005 and consequently, withdrew W.P.No.46781/2003 by a memo dated 24.03.2006. Consequent thereto, a draft SPPA was prepared and submitted to the KERC, which granted approval on 09.01.2006. A SPPA was entered - 44 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS into between Koganti and GESCOM on 28.03.2006. Koganti then filed a representation dated 30.04.2010 to the Joint Secretary of Ministry of New and Renewable Energy, New Delhi, claiming higher tariff than what was agreed under the SPPA. GESCOM rejected the request of Koganti vide letter dated 27.10.2010 in view of the order passed by the KERC dated 11.12.2009. The order dated 11.12.2009 of KERC reads as follows: "In view of the fact that, after completion of 10 years debt servicing will have been fully met and the only increase (marginal) would be in respect of O&M expenses, but at the same time the opportunity cost of the power has gone up, the Commission decides to allow the rate equal to the rate at the end of the tenth year, without escalation for the next ten years for all renewable projects. This tariff is also applicable to such PPAs in which ten years period is already completed but no tariff has been determined." (ii) It is contended that the claim of Koganti that three similar Biomass based power projects had approached KERC as per the direction of the High Court and KERC has passed orders - 45 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS that the tariff of Rs.4.04 under the PPA executed in the year 2006-07 has to be paid to the three projects, cannot be equated to Koganti and the benefit of the said order cannot be extended. It is contended that if Koganti was aggrieved by the rate fixed by KERC, it was bound to approach the KERC or the APTEL. Therefore, it is contended that there is no provision for fixing a higher tariff than what was fixed by the KERC and GESCOM is bound by the order. (iii) It contended that though Koganti has challenged the order passed by the KERC, it has not arrayed KERC as a party and therefore, the writ petition is not maintainable. It is contended that the GESCOM has paid for the energy generated and delivered by Koganti in accordance with the SPPA. It contended that under Section 86(1)(f) of the Act, 2003, in the event of any dispute, Koganti is bound to invoke the process of arbitration and hence, contended that the writ petition is not maintainable. In this regard, it relied upon the judgment of the Hon’ble Supreme Court in Gujarat Urja Vikash Nigam Ltd., vs. Essar Power ltd., [2008 AIR SCW 2169]. - 46 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (iv) It contended that the GESCOM had already considered the claim of Koganti and had clarified vide letter dated 27.10.2010 that Koganti had executed the SPPA voluntarily and therefore, they were bound by the tariff mentioned in SPPA, which was valid upto 09.03.2011. It was also clarified that there was no provision to pay higher tariff than what was fixed by the KERC. It is contended that Koganti stopped generation of power at its project at Valkamdinni and no energy was supplied to the grid from March, 2011. Therefore, GESCOM issued a notice of termination dated 09.12.2011 to terminate the SPPA. Koganti admitted in its letter dated 12.12.2011 that it had stopped generation since March, 2011 and therefore, the SPPA was terminated with effect from 20.04.2012. It is contended that in respect of the tariff agreed to be paid to M/s. Indira Power Energies Ltd., M/s Koppal Green and M/s Powernics, the SPPAs were executed after tariff was agreed mutually before the KERC. Therefore, it is contended that Koganti cannot draw parallel and claim a higher price. It is therefore, contended that Koganti cannot now challenge the SPPA on the ground that it was executed under duress or compulsion or coercion. Therefore, it is contended - 47 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS that the claim made by Koganti cannot be granted and the writ petition is liable to be dismissed on the ground of delay and laches as Koganti had approached the Court after nearly 6 years from the date of execution of SPPA and after supplying power for nearly five years as per SPPA. 14. (i) As regards the writ petition filed in W.P.No.81089/2012, GESCOM contended that Koganti has challenged an order dated 27.01.2012 issued by the State Government and a letter dated 28.01.2012 issued by the Chief Engineer (Electricity), KPTCL. (ii) It claimed that the KERC had issued a Tariff Order dated 11.12.2009 fixing the tariff for Biomass project as follows:- "In view of the fact that, after completion of 10 years debt servicing will have been fully met and the only increase (marginal) would be in respect of O & M expenses, but at the same time the opportunity cost of the power has gone up, the Commission decides to allow the rate equal to the rate at the end of the tenth year, without escalation for the next ten years for all renewable projects. - 48 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS This tariff is also applicable to such PPAs in which ten years period is already completed but no tariff has been determined." (iii) It claimed that as per the PPA dated 09.03.2001, the ten year period ended on 09.03.2011 and the rate at the end of tenth year was Rs.3.410 per unit upto 5.4 MW and Rs.3.135 per unit above 5.4 MW upto 6.75 MW without escalation for the next ten years. Koganti was therefore, called upon to enter into a SPPA vide letter dated 19.03.2011. However, Koganti failed to agree on the ground that the tenth year rates as mentioned above were not acceptable to it. It claimed that reminders dated 06.04.2011 and 18.06.2011 were issued but Koganti failed to respond. On the other hand, Koganti requested for grant of open access vide letter dated 02.11.2011. However, GESCOM replied by a letter dated 23.11.2011 that Koganti had valid PPA for a period of twenty years and did not consent to issue 'No Objection Certificate' for open access. It claimed that Koganti stopped generation of electricity from March, 2011 alleging that there were pending bills to be paid by GESCOM though all charges were paid to it. - 49 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Thus, GESCOM issued a notice for violation of the terms of the PPA and thereafter, invited Koganti for rate negotiation on 24.01.2012. However, Koganti quoted a high price than the tenth year rates. Since Koganti stopped generation from March, 2011, NOC for open access was issued vide letter dated 24.01.2012 and the open access was approved by the CEE/SLDC during January, 2012. (iv) It is claimed that during 2011-12, there was a huge gap between supply and demand of power in the State of Karnataka and it was estimated that it would peak during February, 2012 to May, 2012. Therefore, the State Government issued an order dated 27.01.2012 with effect from 01.02.2012 and which was to be in force till 31.05.2012 or until further orders whichever was earlier. The State Government subjected it to a condition that the tentative tariff for supply of energy by the generators under section 11 and who do not have PPA with ESCOMS shall be Rs.5.30 per unit subject to determination of final tariff by the KERC. Consequently, a letter dated 28.01.2012 was addressed to Koganti to supply the generated power to the State grid from 01.02.2012 to 31.05.2012 and - 50 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS therefore, the application of Koganti to sell power under open access for the month of February, 2012 was not considered. It is contended that Koganti had generated power and evacuated it to the grid between January, 2012 and April, 2012 as follows: Month Energy generated and pumped to the grid in units Jan-12 1867125 Feb-12 4584125 March-12 3811825 April-12 2374383 (v) It is contended that Koganti claimed the rate fixed by the State Government under Section 11 of the Act, 2003 i.e., Rs.5.30 per unit and requested GESCOM to release the payment. However, GESCOM did not release the payment as the PPA dated 09.03.2001 was in force but agreed to pay at SPPA rate only. Accordingly, it paid Rs.4,23,99,840/- for 12637508 units of power pumped into the grid from January, 2012 to April, 2012. It claimed that since Koganti failed to generate power since March, 2011, the PPA was terminated - 51 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS with effect from 20.04.2012. Therefore, it is contended that the writ petition is not maintainable. (vi) It is contended that power to fix tariff for generation of electricity by a biomass project in Karnataka is vested in the KERC under Section 62 of the Act, 2003 and the KERC shall adjudicate it in the manner prescribed under Section 86(1) of the Act, 2003. In support of this, reliance is placed on Sagar Sugars and Allied Products Ltd., vs. Transmission Corporation of A.P. Ltd., [(2011) 10 SCC 154] and Transmission Corporation of A.P. Ltd., vs. Sai Renewable Power Private Ltd. [(2011) 11 SCC 34], where it was held that the State Commission had the expertise to determine the power and tariff. It is also contended that Koganti has an alternate remedy under Section 86(1)(f) of the Act, 2003 and therefore, the writ petition is not maintainable. 15. (i) As regards W.P.No.85561/2012, it is contended that the KERC had issued a tariff order dated 11.12.2009 for biomass project, which reads as follows: "In view of the fact that, after completion of 10 years debt servicing will have been fully met and - 52 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS the only increase (marginal) would be in respect of O & M expenses, but at the same time the opportunity cost of the power has gone up, the Commission decides to allow the rate equal to the rate at the end of the tenth year, without escalation for the next ten years for all renewable projects. This tariff is also applicable to such PPAs in which ten years period is already completed but no tariff has been determined." (ii) It contended that the ten year term of Koganti concluded on 09.03.2011 and at the end of the tenth year, the rate was Rs.3.410 per unit upto 5.4 MW and Rs.3.135 per unit above 5.4 MW upto to 6.75 MW without escalation for the next ten years. Koganti was called upon to execute SPPA, which did not happen as Koganti was not willing to accept the tenth year rates. It is claimed that the request of Koganti for open access was not granted as the PPA was in force. It is contended that Koganti did not terminate PPA but what was sent was only a notice through an Advocate, which was not a termination as contemplated under the terms of PPA. It claimed that GESCOM issued a notice of default on 09.12.2011 and terminated PPA on 20.04.2012, which was admitted by Koganti by a letter dated - 53 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 25.10.2012. It is claimed that attempts were made to re- negotiate the price on 24.01.2012 but Koganti claimed high prices, which was not acceptable. Thereafter, Koganti requested for open access and the same was granted vide NOC dated 24.01.2012. The open access was approved by the CEE/SLDC during January, 2012. However, the State Government issued an order dated 27.01.2012 under Section 11 of the Act, 2003 fixing the tariff at 5.30 per unit in respect of generators, who did not have PPA. It claimed that Koganti had supplied power to the grid between January, 2012 and April, 2012 and payment was made at the rate of Rs.3.410 per unit upto 5.4 MW and at Rs.3.135 per unit above 5.4 MW upto 6.75 MW without escalation. It claimed that since Koganti failed to generate electricity and deliver it to the grid from March, 2011, GESCOM terminated the PPA on 20.04.2012. It claimed that KERC by an order 11.12.2009 had fixed the tariff from renewable sources of energy for the period 2010 upto 2015 and held that the same is applicable to projects which had completed ten years of agreement period and agreed tariff is available after ten years. Therefore, it contended that the tariff paid to Koganti is just and proper and Koganti cannot compel - 54 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS the payment at a sum of Rs.5.03 per unit. Therefore, it is prayed that the writ petition be dismissed. 16. As regards the relief sought for in W.P.No.205114/2016, it claimed that the petition is not maintainable in view of an alternate remedy under Section 86(1)(f) of the Act, 2003. It is also contended that the KERC is not arrayed as a party though the powers of the KERC under Section 11 of the Act, 2003 is challenged. It is contended that the powers of the State Government to issue order under Section 11 of the Act, 2003 was challenged before this Court in W.P.No.590/2009 and this Court upheld the power of the State to invoke Section 11 of the Act, 2003. Therefore, it contended that Koganti cannot now again challenge the power of the state Government and the power of KERC to fix the tariff under Section 11 of the Act, 2003. It contended that based on the direction issued by the State Government vide order dated 16.09.2015, ESCOMS had filed O.P.Nos.33/2015, 41/2015, 34/2016, 35/2016 and 36/2016 to fix the tariff for the supply of energy generated wise under Section 11 of the Act, 2003 and that KERC fixed the rate at Rs.4.67 per KWH for the energy - 55 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS supplied under Section 11 of the Act, 2003 between September, 2015 to May, 2016. It contended that KERC had directed the ESCOMs to issue notices to recover the excess paid. Therefore, GESCOM issued the notice to recover the excess paid to Koganti. It contended that KERC has the power to fix the tariff under Section 62 of the Act, 2003 and it is guided by the principles mentioned in Section 61 of the Act, 2003. It is contended that the same method was adopted by KERC in O.P.Nos.47/2011, 16/2010 and 14/2012. It also claimed that Koganti did not file any objection before the KERC for the adverse financial impact in view of the direction issued by the State Government dated 16.09.2015 though it addressed a letter claiming the tariff at Rs.7.50 per unit. It therefore, contended that the excess payment made to Koganti was adjusted out of the bills due to Koganti. Therefore, it is claimed that Koganti is not entitled to any reliefs in this writ petition. 17. In so far as W.P.No.13043/2011 filed by Ravi Kiran, GESCOM has filed a memo adopting the statement of objections filed by it in W.P.No.80966/2012. - 56 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 18. Similarly, in W.P.No.26709/2012, GESCOM has filed a memo adopting the statement of objections filed in W.P.No.81808/2011. 19. The submissions of the learned counsel for the petitioner in Koganti are as follows: (i) Koganti entered into a PPA with KPTCL on 09.03.2001 for a period of twenty years. The tariff agreed for the first ten years was Rs.2.25 per kwh delivered at the metering point and was subject to escalation at the rate of 5% per annum. This price was based on the base price applicable for the year 1994-95 as per the guidelines of the Government of India. (ii) That KPTCL without following the due procedure prescribed under the PPA, terminated it on 05.07.2003 without even issuing a notice. Koganti challenged it in W.P.No.46781/2003 and this Court granted an interim stay of the termination. Since there was no sufficient infrastructure for sale of electricity through open access and KPTCL was having a strangle hold over granting permission for open access and - 57 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS since there were not many renewable energy generators, Koganti apprehended that the electricity generated by it may not be received and therefore, succumbed to the pressure and entered into SPPA dated 28.03.2006 at a substantially reduced rate at Rs.3.10 per unit for 6 MW and 2.85 per unit for the balance 1.5 MW with an annual escalation of 2%. Koganti was supplying energy and was requesting the GESCOM and the State Government to resolve the anomaly created on account of the SPPA, which provided a lesser tariff. That this Court in W.P.No.84322/2010 directed the State Government to offset the adverse impact as assured by it under the energy policy 2009-14. (iii) That during the year 2010, there was severe power crunch and therefore, the State Government requested the generating companies to increase the power supply to overcome the situation and help the Government tide over the crisis. Thus, it issued the First order u/s 11. The generating companies demanded a special tariff at the rate of Rs.5.60 per kwh. However, after deliberations, the State Government fixed a sum of Rs.5/- per kwh subject to the generating companies - 58 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS seeking approval from the KERC so as to offset the adverse financial impact as provided under Section 11(2) of the Act, 2003. (iv) That based on assurance of the State, Koganti made all arrangements to procure raw material at a high cost and on many occasions, had to procure coal for generation of power. GESCOM after receiving the power, calculated the tariff at the rate of Rs.5/- per kwh and released the amount to Koganti, which was appropriated towards payment for raw material supply etc. That the generating companies had requested the State Government not to recover the amount from the generating companies pursuant to the order dated 24.03.2011 passed by the KERC and accordingly, the State Government had issued appropriate directions. Nonetheless, GESCOM issued an endorsement that it had adjusted the excess paid to Koganti from the bill submitted in January. That Koganti was not a party before the KERC and GESCOM did not approach the KERC for offsetting the adverse financial impact. He therefore, contends that the order passed by the KERC dated 24.03.2011 against other generating companies cannot - 59 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS be the basis to recover the alleged excess payment to Koganti. He contends that the order passed by KERC was inter-parties and did not bind Koganti in any manner whatsoever. (v) He further contends that the State Government issued Second Order u/s 11 for supply of power to the State grid. The State Government fixed a tariff of Rs.5.30 per unit which was again subject to approval by the KERC. He contends that this Court in terms of the order dated 18.11.2003 passed in W.P.No.46781/2003 held that payment of tariff would be subject to the outcome of the writ petition. (vi) He contends that Koganti stopped generation of power in March, 2011 and GESCOM had issued a notice to terminate the PPA following which, permission was granted for open access during January, 2012. He therefore, contends that the termination of the PPA was tacitly agreed between Koganti and GESCOM. However, GESCOM issued an endorsement dated 17.05.2012 declining to pay the tariff in terms of the notification dated 27.01.2012 on the ground that the PPA was in force upto 20.04.2012 and accordingly, it paid a sum of Rs.3.40 per unit for electricity supplied till 20.04.2012. - 60 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS GESCOM thereafter, issued an endorsement dated 29.08.2012 declining to pay the tariff for the power supplied during February, March and April, 2012. He contends that this was arbitrary as Koganti was entitled to tariff of Rs.5.30 per unit. He contends that the State Government had fixed the minimum tariff at Rs.5.30 per unit and directed the generators to approach the KERC to offset the adverse financial impact. Therefore, the KERC could have either accepted a sum of Rs.5/- per unit holding that there was no adverse financial impact or must have held that there was financial impact and increase the tariff. He contends under Section 11 of the Act, 2003, the KERC cannot reduce the tariff than what was offered by the State. (vii) He contends that the State Government before issuing the notification dated 27.01.2012 had taken into account the tariff offered by the other southern States as well as the rate of power at the exchange and felt it appropriate to harness electricity from within the State. He contends that the State had done its due diligence before offering a sum of - 61 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Rs.5.30 per unit and hence, the KERC could not have reduced it to Rs.4.67 per unit. (viii) He contends that conduct of GESCOM has virtually frustrated the energy policy 2009-14. He also contends that due to irrational fixation of tariff and non-payment of the bills in time, many bio-based power plants have come to a grinding halt. He contends that Koganti had invested huge amount in the project and had raised loan from IREDA and that due to default in the loan, action is initiated against Koganti. He therefore, contends that the action of the respondents in first entering into a PPA, cancelling it unilaterally and compelling the Koganti to enter into a SPPA on terms that were disadvantageous and thereafter, not granting remunerative price to the power generated by applying unconcerned orders passed by the KERC and even after granting an open access to the Koganti, refusing to treat the SPPA as non-existing but denying the benefit of higher tariff by holding that the supplemental agreement was still in force on 20.04.2012, have all added to closing down the unit. He therefore, contends that the GESCOM is liable to make good the loss with interest. - 62 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 20. (i) Per contra, the learned Senior counsel for GESCOM contended that W.P.No.81808/2011 is not maintainable as Koganti is bound to approach the KERC as provided under Section 11 of the Act, 2003. He contends that a writ petition under Article 226 of the Constitution of India is not maintainable. In support of this, he relied upon the judgment of the Division Bench of this Court in W.A.No.3893/2009 in Karnataka Power Transmission Corporation Ltd., vs. Hassan Thermal Power Private Ltd., and another and the judgment dated 04.08.2022 passed by the Hon'ble Supreme Court in SLP (C) Nos.17062-17063/2021. (ii) He also contends that if Koganti is aggrieved by the order passed under Section 11(2) of the Act, 2003, then it is entitled to file an appeal before the APTEL under Section 111 of the Act, 2003. (iii) He further contends that though Koganti has challenged the order passed by the KERC, it has not arrayed KERC as a party to the proceedings and hence, the petition is liable to be dismissed for non-joinder of necessary party. He further contended that the order dated 24.03.2011 was - 63 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS challenged before the APTEL in Appeal Nos.141/2011, 142/2011 and 10/2012 and Appeal Nos.141/2011, 142/2011 were disposed off upholding the order dated 24.03.2011 and Appeal No.10/2012 was dismissed. Thus, it is contended that the order dated 24.03.2011 has merged in the order of the APTEL. Therefore, the writ petition challenging the order passed by the KERC is not maintainable. Further, since APTEL had upheld the order dated 24.03.2011, W.P.No.81808/2011 has become academic as APTEL had directed the KERC to determine the discount that has to be effected towards marketing and transmission charges to arrive at the rate of supply of energy to be paid to the generator during April, 2010 and June, 2010. He has relied upon the judgment of the Hon’ble Supreme Court in Loknath Pradhan vs. Birendra Kumar Sahu [(1974) 1 SCC 526] to contend that the Court should not decide mere academic issues. Therefore, he contends that W.P.No.81808/2011 is liable to be dismissed. He has placed on record the order passed by the APTEL in the appeals, referred above. - 64 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (iv) In so far as W.P.No.80966/2012, he contends that the Koganti has sought for a declaration to restore the tariff and pay arrears of the energy charges as agreed under the PPA dated 09.03.2001 and quash the endorsement issued by the State of Karnataka dated 15.09.2011 and declare the SPPA dated 28.03.2006 as void and to direct GESCOM to pay arrears of amount in terms of Article 5 of PPA. He contends that under Section 86(1)(f) of the Act, 2003, Koganti has a remedy of seeking reference of the dispute before the arbitrator. He also contended that the dispute of Koganti ought to have been ventilated before the KERC and therefore, the writ petition is not maintainable. (v) He contends that the SPPA dated 28.03.2006 was not executed under economic duress or under any compulsion, as there are no circumstances mentioned by Koganti, which forced it to execute the SPPA. On the contrary, he contends that Koganti by its letter dated 02.09.2005, had conveyed its acceptance for the tariff at the rate of Rs.3.10 per kwh and by a letter dated 15.02.2006, it requested GESCOM to expedite the process of signing the SPPA. He contends that this was - 65 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS enough to establish that there was no coercion or duress to execute the SPPA. He further contends that the Koganti had supplied power as per SPPA without any demur till the end of 2010. It is only in the year 2012 that Koganti raised the issue that SPPA was executed under coercion by which time, the State Government had issued an order under Section 11 of the Act, 2003 and GESCOM had refused to pay the rates as offered by the state Government to those generators who had a PPA. In support of his contention that the question whether the company was coerced to enter into a PPA cannot be gone into a proceedings under Article 226, he relied upon the judgment of the Hon'ble Supreme Court in Gujarat Urja Vikas Nigam Limited and others vs. Renew Wind Energy (Rajkot) Private Limited and others [2023 SCC OnLine SC 411]. (vi) He contended that the reliefs sought for in the writ petition is hit by delay and laches as Koganti has woken up after six years after execution of SPPA to contend that it was executed forcibly. In support of his contention, he relied upon the judgment of the Hon'ble Supreme Court in P.S. - 66 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Sadasivaswamy vs. State of Tamil Nadu [(1975) 1 SCC 152]. (vii) It also contended that the GESCOM has terminated the SPPA by an order dated 20.04.2012 which meant that the SPPA was in force till 20.04.2012 and therefore, Koganti was not entitled to the rates offered by the State Government. Under the circumstances, the reliefs sought for in the writ petition has become academic. (viii) In so far as the contention that similarly situated generators have been provided with higher tariff of Rs.4.11 per unit with 2% non-cumulative escalation annually, it is contended that the same was agreed by KPTCL and other biomass power stations by filing joint memos before KERC. They contend that these rates were fixed to specific projects and based upon they establishing that there had to be a departure from the general tariff fixed by the KERC. He contends that the Koganti did not approach KERC to resolve its dispute with GESCOM and arrive at a revised tariff on specific parameters. Therefore, it is contended that Koganti is not entitled to be treated alike. He contends that if Koganti had - 67 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS any grievance, it had to approach the KERC and cannot approach this Court seeking parity. (xi) He contends that it is the KERC, which is empowered under Section 62(1) of the Act, 2003 to determine tariff for supply of electricity. Regulation 5.6 of KERC (Power Procurement from Renewable Sources by Distribution Licencees) Regulations, 2004 provides the procedure for determination of tariff. In accordance with the said Regulation, the KERC had invited tariff proposals and issued a notice on 05.10.2004 and held a hearing on 28.12.2004. It claimed that a representative of Koganti had also attended the public hearing, which resulted in an order dated 18.01.2005, whereby it held the tariff for biomass projects at Rs.2.85 per unit in the first year of commercial operation and for the subsequent period of nine years at an escalation price of 2% per annum. He contended that in respect of PPA already approved by the KERC upto 10.06.2004, the tariff approved by the KERC shall hold good for the period specified therein. Therefore, he contends that Koganti was well aware that the KERC has fixed the price at Rs.3.10 per kwh as the average price for ten years. - 68 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Therefore, he contends that there is no basis for the claim of Koganti that GESCOM had fixed the tariff arbitrarily. He contends that if Koganti was aggrieved by the order passed by the KERC dated 18.01.2005, it must have challenged it before the APTEL. (x) In so far as the contentions in W.P.No.81089/2012, the learned Senior counsel adopted the above contentions and contended that the Koganti is not entitled to any reliefs. (xi) In so far as the reliefs in W.P.No.205114/2016, the learned Senior counsel contends that Koganti has questioned the power of the State to issue orders under Section 11 of the Act, 2003. He contends that the Division Bench of this Court in GMR Energy Limited and another vs. Government of Karnataka and others [ILR 2010 KAR 2620] has dismissed the challenge to the order under Section 11(1) of the Act, 2003 and held that the appropriate Government has power to issue necessary orders under Section 11(1) of the Act, 2003 in order to meet extraordinary circumstances. - 69 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (xii) He contended that the Division Bench also considered the scope of Section 11(2) of the Act of 2003, while calculating the adverse financial impact. He contends that the KERC had undertaken the task of determining the adverse financial impact and after considering the contentions of all stakeholders and taking into the statistics published by Central Electricity Regulatory Commissioner (CERC) relating to short- term power transacted through traders during the period in which the Government Order under Section 11 of the Act, 2003 was in operation for supply of energy and after deducting transmission charges and marketing charges should be adopted as the adverse financial impact for the period in question. He contended that there is no question of considering the impact of each generating unit based on its ability to sell power in the open market and the said contention has been rejected by the Division Bench. (xiii) He contends that an exercise was undertaken by the KERC on 24.03.2011 in O.P.No.16/2010, which was upheld by the APTEL vide order dated 03.10.2012 in Appeal Nos.141/2011, 142/2011 and 10/2012. Pursuant thereto, the - 70 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS KERC had determined deductible components from the short- term power purchase cost from 14.02.2013 and later, it determined the adverse financial impact between February, 2012 and May, 2013 by order dated 22.05.2013. While arriving at the tariff, the KERC took into account the average weightage market price published by CERC for the period in question. The order dated 22.05.2013 was challenged before APTEL, which upheld it. (xiv) He contends that in O.P.No.33/2015, the KERC by order dated 18.08.2016 had decided Rs.4.67 per kwh as the adverse financial impact for the period September, 2015 to May, 2016 pursuant to the order under Section 11(1) of the Act, 2003 dated 16.09.2015. He contends that to arrive at the said price, the KERC took into account the average weightage market price published by CERC. He contends that the order of the KERC dated 18.08.2016 was challenged before this Court in W.P.Nos.60231-233/2016 and connected cases and this Court remanded it for fresh consideration after issuing notice to all generating companies. He contends that this order was again challenged by the generating companies in W.A.No.995/2018. - 71 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS The Division Bench disposed off the writ appeal and set aside the finding of facts and issued direction to consider the matter afresh after issuing individual notices to generators. He contends that the Division Bench specifically set aside the observation of the learned Single Judge, who held that the State Commission can revise the provisional tariff upwards and not downwards. Thus, he contends that the KERC may either increase or decrease the provisional tariff offered by the State while determining the adverse financial impact. He contends that the KERC thereafter issued notices to all generators and after hearing them, passed the order dated 06.09.2023 determining the tariff for the period September, 2015 to May, 2016 at Rs.5.08 per unit. He contends that ESCOMS have paid tariff to the generators at the rate of Rs.5.08 per unit for the period September, 2015 to May, 2016. Therefore, he contends that the contentions urged in these petitions have now become academic and therefore, no interference is warranted. 21. (i) Learned Senior counsel for the petitioner in W.P.No.13043/2011 submits that Ravi Kiran had entered into a PPA dated 10.06.2002, which was unilaterally terminated on - 72 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 05.07.2003, which was questioned in W.P.No.11266/2004. Though a termination was stayed, the respondents coerced Ravi Kiran to enter into a SPPA dated 14.11.2006 in terms of which, Ravi Kiran was bound to sell the electricity at the rate of 3.10 per unit for 6 MW and at Rs.2.85 per unit for enhanced 1.5 MW with escalation of 2% per annum. He contends that as per the terms of the PPA dated 10.06.2002, the tariff on 14.11.2006 would have been Rs.3.85 per unit. He contends that Ravi Kiran challenged the termination of PPA and to declare SPPA as void before the KERC in O.P.No.14/2008. He contends that the KERC failed to examine the issues taking into account the dominant position of the licencee. However, the KERC rejected O.P.No.14/2008 vide order 25.11.2009 and the review petition filed there against in R.P.No.5/2010 was also rejected. (ii) The learned Senior counsel contends that the GESCOM has treated similarly placed biomass power generating companies in Karnataka differently in matters relating to tariff. In O.P.Nos.34/2006, 36/2006 and 8/2007, GESCOM had entered into a negotiated settlement and settled the dispute - 73 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS offering a higher tariff at the rate of Rs.4.11 per unit with 2% non-cumulative escalation annually. Therefore, he contended that Ravi Kiran is entitled to be treated alike and the rate agreed under the PPA had to be given to Ravi Kiran also. He contends that the KERC does not have the power to look into the questions of discrimination and therefore, Ravi Kiran is entitled to approach this Court. (iii) He contends that the writ petition is maintainable as there are several questions of law, which cannot be adjudicated upon by the KERC. He contends that a PPA cannot be treated as an ordinary commercial contract between two individuals, as it is a contract with an entity of the State and therefore, contends that the State is bound to adopt a uniform policy while distributing its largesse. He contends that the availability of an alternate remedy is not an absolute bar against entertaining the writ petition. He contends that the writ petition is admitted and therefore, question of availability of an alternate remedy cannot come in the way of entertaining the writ petition. In this regard, he relied upon the judgment in Pioneer Publicity Corporation vs. Delhi Transport - 74 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Corporation [2003 SCC OnLine Del 207] and the judgment of the Hon'ble Supreme Court in Whirlpool Corporation vs. Registrar of Trade Marks [(1998) 8 SCC 1] and Popcorn Entertainment vs. City Industrial Development Corporation [(2007) 9 SCC 593]. He contends that Ravi Kiran is discriminated vis a vis three other generators of the same kind and the KERC cannot decide the question of discriminatory treatment meted out to Ravi Kiran. He contended that a party to the contract with the Government can approach the Court, if its rights are infringed by arbitrary termination of the contract. In this regard, he relied upon the judgment of the Hon'ble Supreme Court in M.P. Power Management Co. Ltd., vs. Sky Power Southeast Solar India (P) Ltd., [(2023) 2 SCC 703]. He contends that the termination of PPA was illegal and malafide with an intention to compel Ravi Kiran to agree to supply electricity at the lower rate. In this regard, he relied upon the ruling of the commission in R.K. Powergen Pvt. Ltd., vs. KPTCL [O.P.No.9/2006 and O.P.No.26/2005], which was confirmed by the APTEL in Appeal No.80/2006. - 75 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (iv) He contends that the letter of termination dated 05.07.2003 does not contain any reasons for termination and therefore, it should be construed as a termination simpliciter and the respondents cannot support such termination by supplementing reasons in the pleadings filed in this writ petition. In support of this, he relied upon the judgment of the Hon'ble Supreme Court in Mohinder Singh Gill vs. Chief Election Commissioner [(1978) 1 SCC 405] and M.P. Power Management Co. Ltd., referred supra and contends that the issue in the present writ petition is squarely covered by the latter judgment. Thus, he contends that there was a blatant violation of Article 14 of the Constitution of India in not only arbitrarily and unilaterally terminating a valid PPA but also in discriminating Ravi Kiran viz a viz other generators. In support of this, he relied upon the judgment of the Hon'ble Supreme Court in Ramanna Dayaram Shetty vs. International Airport Authority of India [(1979) 3 SCC 489] and Central Inland Water Transport Corporation Limited and Another vs. Brojo Nath Ganguly and another [(1996) 3 SCC 156]. - 76 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (v) He contends that KPTCL and GESCOM enjoyed dominant and exclusive control in the power sector during the year 2002 when the PPA was entered into with Ravi Kiran. He contends that though this position changed after the Act, 2003, KPTCL continued to be a powerful player in the energy sector. Ravi Kiran has raised huge loans for the project and therefore, when the PPA was terminated, Ravi Kiran was put under financial stress and therefore, it was compelled by circumstances to enter into a SPPA. He contends that this was a clear case of coercion and therefore, the SPPA was obtained forcibly by misusing the domineering position of the respondents. In support of this, he relied upon several judgments of the Hon'ble Supreme Court. (vi) He contends that though all these questions were urged before the KERC, it did not consider any of them but lightly brushed aside them on the ground that Ravi Kiran had supplied under the SPPA for long and therefore, there is no need to revisit the SPPA. (vii) He contends that under Sections 61 and 62 of the Act, 2003, a specific procedure is prescribed for fixing the tariff, - 77 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS which includes the generators right to recover of the cost of the electricity generated in a reasonable manner and therefore, mere approval of the SPPA by the KERC does not amount to determination of tariff. He contended that GESCOM had addressed a letter dated 31.10.2006 admitting that it had held back payment of invoices raised by Ravi Kiran until it agreed to execute the SPPA. He therefore, contends that the conduct of the respondents is unbecoming of a State entity and therefore, Ravi Kiran is entitled for restoration of the PPA and the tariff thereunder. (viii) In so far as the contention in W.P.No.26709/2012, the learned Senior counsel submitted that Ravi Kiran was not a party before the KERC in O.P.No.16/2011 dated 24.03.2011, where it fixed the tariff at Rs.4.67 per unit. He therefore, contends that the said order could not be made applicable to Ravi Kiran as it was not heard and the relevant factors while assessing the adverse financial impact on Ravi Kiran was not considered. In support of these contentions, he relied upon the following judgments: - 78 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (i) Star Metallics and Power Private Limited vs. BESCOM and others in W.P.Nos.60231-233/2016, which was upheld by the Division Bench in W.A.No.995/2018. (ii) J.S. Yadav vs. State of U.P. and another in Civil Appeal No.3299/2011. (ix) He contended that the State Government had fixed a tariff and had directed the generators to approach the KERC to assess the adverse financial impact, the KERC could not fix a lower tariff than what was offered by the State. Thus, he contends that under Section 11(2) of the Act, 2003, the KERC cannot fix a lower price. Thus, he contends that the Official Memorandum issued by the respondents demanding the excess payment made to Ravi Kiran is improper and illegal and deserves to be set at naught. 22. (i) In reply, the learned Senior counsel for GESCOM, in W.P.No.13043/2011 submitted that the alternate remedy available to Ravi Kiran under Section 111 of the Act, 2003 is efficacious and effective and therefore, Ravi Kiran was bound to challenge it before the appropriate Appellate Tribunal and not by filing a writ petition before this Court. In this regard, - 79 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS he relied upon the judgment of the Division Bench of this Court in KPTCL vs. Hassan Thermal Power Private Ltd., [W.A.No.3893/2019]. He also contends that Article 10 of the PPA provides for resolution of the disputes through arbitration. Therefore, Ravi Kiran is bound to invoke arbitration as provided under Section 86(1)(f) of the Act, 2003. (ii) He contends that Ravi Kiran has approached this Court with unclean hands as it suppressed the issuance of termination notice dated 27.02.2012 to GESCOM; It also suppressed the fact that the termination notice was challenged by GESCOM in O.P.No.7/2013 before the KERC, which was later withdrawn on 17.10.2013. He contends that Ravi Kiran has suppressed that it had filed Petition No.227/2012 before CERC seeking a direction to SLDC to issue a 'No Objection Certificate' for interstate transmission of electricity, which was dismissed on 20.05.2013, which was again unsuccessfully challenged before APTEL in Appeal No.171/2013. He contends that Ravi Kiran also suppressed that it had filed O.P.No.33/2014 before the KERC for a direction to the respondents to grant wheeling and banking facility and to sign an agreement in that regard, - 80 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS which was again dismissed by an order dated 11.02.2016, which again was unsuccessfully challenged before APTEL in Appeal No.84/2016. That APTEL set aside the order passed by the KERC and directed the KERC to decide whether there was a valid termination of PPA and SPPA. He contends that Ravi Kiran has challenged this order before the Hon'ble Supreme Court in Civil Appeal No.1510/2018, which was dismissed on 17.01.2025. Therefore, he contends that Ravi Kiran is not entitled to any reliefs as it has suppressed crucial material facts in this writ petition. He contends that there was no coercion or economic duress exerted by the respondents on Ravi Kiran to enter into a SPPA dated 14.11.2006. In this regard, he relied upon the judgment of the Hon'ble Supreme Court in Gujarat Urja Vikas Nigam Limited and others vs. Renew Wind Energy (Rajkot) Private Limited and others [2023 SCC OnLine SC 411], referred supra, where it was held that the APTEL is not expected to casually render findings of coercion or fraud without proper pleadings or proof or without probing into the evidence. - 81 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (iii) In so far as the contention that there was discrimination, he submits that the revised tariff for other generators was fixed after mutual discussions between the parties and after filing joint memo before the KERC. He also contends that the tariff was project specific and there was no basis to establish that the generic tariff fixed by the KERC should be departed from. (iv) In so far as the contention urged in W.P.No.26709/2012, he contends that order/Official Memorandum impugned in the writ petition were passed on 24.03.2011 and 31.03.2011. He contends that Ravi Kiran instead of filing an appeal under Section 111 of the Act, 2003 has filed the writ petition before this Court, which is not maintainable. He also contended that the KERC was not arrayed as party in the writ petition though what is challenged is an order passed by the KERC in O.P.No.16/2010. Thus, he contends that the writ petition is not maintainable for non- joinder of necessary parties. (v) He contends that the order dated 24.03.2011 is upheld by the APTEL in Appeal No.141/2011 and connected - 82 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS appeals vide order dated 03.10.2012. Therefore, he contends that the impugned order has merged in the order passed by the APTEL and hence, the writ petition is not maintainable before this Court. He also contends that the APTEL while upholding the order dated 24.03.2011 passed by the KERC had remitted the case back to the KERC to determine the discount that had to be effected towards marketing and transmission charges while arriving at the rate of supply to be paid to the generators during April, 2010 and June, 2010. Thus, he contends that the relief sought for in this writ petition has become academic and this Court should not expend time on deciding academic issues. (vi) He contends that GESCOM had addressed a letter dated 21.09.2010 at Annexure – R5 and had clarified to the KERC that it is only those generators who had subsisting PPAs who may approach the KERC by filing petitions seeking higher tariff and not to GESCOM. Thus, he contends that the GESCOM was justified in relying upon the order dated 24.03.2011 in issuing the Official Memorandum to Ravi Kiran. (vii) He contends that the KERC is entitled to not only revise the tariff upward but also reduce it while determining the - 83 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS adverse financial impact. In this regard, he relied upon the judgment in BESCOM vs. Star Metallics and Power Private Limited in W.A.No.995/2018, where it set aside the findings recorded by the learned Single judge contained at paragraph Nos.24 and 25. Therefore, he contends that the KERC is entitled to reduce the price offered by the State Government. 23. The learned Additional Government Advocate also supported the contention of the GESCOM and submitted that the KERC is entitled to decide the adverse financial impact and therefore, there is no error in GESCOM raising a demand for recovery of the excess paid to Koganti and Ravi Kiran. 24. I have considered the submissions of the learned Senior counsel representing Ravi Kiran, learned counsel for Koganti and the learned Senior counsel representing GESCOM as well as the learned Additional Government Advocate. I have also perused the voluminous documents placed on record and the unending number of case laws in support of their contentions. - 84 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 25. (i) Before, we dwell into questions of fact and law, it is first appropriate to consider the threshold contention raised regarding maintainability of the petition filed by Koganti in W.P.No.81808/2011 and Ravi Kiran in W.P.No.13043/2011 and W.P.No.26709/2012 in view of the alternate remedy available under Section 111 of the Act, 2003. For the sake of immediate reference, Section 111 of the Act, 2003 is extracted below: "Section 111. Appeal to Appellate Tribunal: --- (1) Any person aggrieved by an order made by an adjudicating officer under this Act (except under section 127) or an order made by the Appropriate Commission under this Act may prefer an appeal to the Appellate Tribunal for Electricity: Provided that any person appealing against the order of the adjudicating officer levying any penalty shall, while filing the appeal, deposit the amount of such penalty: Provided further that wherein any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, it may dispense with such deposit subject - 85 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty. (2) Every appeal under sub-section (1) shall be filed within a period of forty five days from the date on which a copy of the order made by the adjudicating officer or the Appropriate Commission is received by the aggrieved person and it shall be in such form, verified in such manner and be accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period. (3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (4) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned adjudicating officer or the Appropriate Commission, as the case may be. (5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as - 86 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within one hundred and eighty days from the date of receipt of the appeal: Provided that where any appeal could not be disposed of within the said period of one hundred and eighty days, the Appellate Tribunal shall record its reasons in writing for not disposing of the appeal within the said period. (6) The Appellate Tribunal may, for the purpose of examining the legality, propriety or correctness of any order made by the adjudicating officer or the Appropriate Commission under this Act, as the case may be, in relation to any proceeding, on its own motion or otherwise, call for the records of such proceedings and make such order in the case as it thinks fit." (ii) A reading of the above, makes it more than apparent that an appeal is provided against any order passed by the KERC before the Tribunal. Ordinarily, this Court would not exercise jurisdiction when there is an alternative and efficacious remedy as Article 226 of the Constitution of India is not a panacea for all ills. This however is not an absolute bar and a strait jacket. This Court would not hesitate to exercise - 87 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS jurisdiction when a person approaching this Court alleges violation of his/her/its fundamental right or seeks to enforce his/her/its fundamental rights or when the act complained of is thoroughly arbitrary or when principles of natural justice is not followed or when the act complained of is in absolute violation of the concerned legislation or if it is without jurisdiction or when the vires of a legislation is challenged. (iii) In W.P.No.81808/2011 and W.P.No.26709/2012 Koganti and Ravi Kiran respectively claimed that they were not bound by the Order dated 24.03.2011 passed by the KERC determining the electricity charges payable to those generators who had a valid PPA. The contention urged is that Koganti and Ravikumar were not parties to the proceedings before the KERC and they were not heard and hence, it cannot be made applicable. The fact that Koganti and Ravi Kiran were not parties before the KERC and GESCOM too had not filed any petition before the KERC to determine the price of electricity generated and supplied by biomass generators, is not in dispute. It is a matter of common knowledge that every unit established by every generator has unique advantages and - 88 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS disadvantages, which affect the cost of generation of electricity. Therefore, whenever the State Government exercises its power under Section 11 of the Act, 2003, it is incumbent upon the generator as well as the ESCOMs to file appropriate petitions before the KERC to either determine the adverse financial impact or the price based on ascertainable data. As neither Koganti, Ravi Kiran nor GESCOM filed petitions for determining the adverse financial impact on them in view of the Government Order dated 16.04.2010, a generic order passed by the KERC could not be made applicable to Koganti and Ravi Kiran. Therefore, the order dated 24.03.2011, which was the basis for the demands made by GESCOM, was without following the due process of law and without following the principles of natural justice. This apart, the Order dated 24.03.2011 was upheld by the Appellate Tribunal in Appeal Nos.141/2011, 142/2011 and 10/2012. Therefore, the remedy of an appeal against the Order of the KERC dated 24.03.2011 was ineffective and served no purpose. Under the above circumstances, the writ petitions filed by Koganti and Ravi Kiran, referred supra are maintainable notwithstanding the existence of an alternate remedy. - 89 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (iv) As regards the maintainability of W.P.No.13043/2011 filed by Ravi Kiran is concerned, it has challenged the Order dated 25.11.2009 passed by the KERC dismissing O.P.No.14/2008 and the Order dated 06.01.2011 in R.P.No.5/2010. The petition before the KERC related to the unilateral termination of the PPA and to declare the SPPA as void and to pay charges at rates agreed under PPA. The KERC rejected the petition and also rejected a petition to review the Order. Therefore, Ravi Kiran was bound to challenge the Order passed by the KERC in an appeal before the Tribunal. Nonetheless, this Court cannot ignore the fact that the writ petition was admitted notwithstanding the existence of an alternate remedy. As held by the Hon'ble Supreme Court in Rajasthan State Electricity Board vs Union of India [2008 7 SCR 1025], once a proceeding is admitted and heard, question of existence of an alternative remedy fades into insignificance. This apart, Koganti has also filed a similar petition in W.P.No.80966/2012 to declare a SPPA as void and to pay electricity charges at PPA rates. Various other writ petitions - 90 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS filed by Koganti are taken up for disposal and therefore, in order to avoid any conflicting opinions, W.P.No.13043/2011 is held to be maintainable before this Court. (v) As regards the maintainability of W.P.No.80966/2012 filed by Koganti, this essentially arose out of the termination of PPA and the consequent execution of SPPA and to pay energy charges at rates agreed under PPA. Koganti has alleged that other generators like it whose PPAs were terminated were given the PPA rates and claimed that it was discriminated and was not given the rates as agreed under the PPA. Therefore, though in the ordinary course this petition was not maintainable in view of the existence of an alternate remedy under Section 86(1)(f) of the Act, 2003, yet in order to examine whether there was any discrimination between Koganti and similarly placed generators, this petition is held to be maintainable. (vi) As regards the maintainability of W.P.No.81089/2012, W.P.No.85561/2012 and W.P.No.205114/2016 filed by Koganti are concerned, in W.P.No.81089/2012, Koganti has challenged the authority of - 91 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS the State Government to issue the Order dated 27.01.2012 under Section 11 of the Act, 2003 on three grounds namely, (i) that it was already granted permission to sell energy to third parties through open access; (ii) that the rate fixed by the State Government was far below the rates at which it was importing energy; (iii) that it was deprived of the right to sell power in the open market. These questions did not arise under the SPPA but arose in view of the Government Order dated 27.01.2012. Therefore, this writ petition is maintainable before this Court. (vii) In W.P.No.85561/2012, the Order dated 29.08.2012 passed by GESCOM to pay energy charges as per rates agreed under SPPA was passed, notwithstanding the fact that a NOC was granted to Koganti for sale of energy to third parties through open access. Therefore, it is contended that the Order dated 29.08.2012 is arbitrary and violates the fundamental right guaranteed to it under Article 14 of the Constitution of India. This issue did not arise out of either the PPA or the SPPA and therefore, was though a dispute between Koganti and GESCOM, which could be adjudicated upon under - 92 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Section 86(1)(f) of the Act, 2003, since violation of fundamental right is alleged, the writ petition is held to be maintainable. (viii) In W.P.No.205114/2016, Koganti has challenged the authority of the State Government to issue the order dated 16.09.2015 under Section 11 of the Act, 2003 and the consequent authority of the KERC to determine the electricity charges. Therefore, these questions can certainly not be adjudicated before the KERC under Section 86(1)(f) of the Act, 2003 and therefore, it is held that this writ petition is maintainable. 26. A not so impressive contention urged by Koganti, which needs to be dealt at the threshold, is that the State Government has no power to issue an order under Section 11 of the Act, 2003 and that the KERC has no authority to determine the energy charges. In order to answer this, it is necessary to first note Chapter VII of the Act,2003 which prescribes the guidelines for the Commission in determining tariff for a generating company and to determine the tariff and issue a tariff order. Likewise, under Section 86(1)(a) of the Act, - 93 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 2003, the State Commission is entitled to determine the tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, within the State. Therefore, it cannot be said that the Commission is not empowered under the Act, 2003 to determine the tariff payable to the generators in the State. 27. The next issue is whether the State while exercising its power under Section 11 of the Act, 2003 can hold that the tariff offered to the generators will be subject to approval by the Commission. This question is no longer res integra in view of the Judgment of this Court in GMR Energy Limited and another vs. Government of Karnataka and others [ILR 2010 KAR 2620]. Therefore, it is held that the State Government is empowered under Section 11 of the Act, 2003 to compel the generators in a State to generate and supply electricity to meet any exigency and not perpetually and it is also entitled to hold that the price offered by it shall be subject to approval by the Commission. The Commission while determining the tariff should ensure that no adverse effect on competition is caused in the electricity industry. - 94 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Finding in W.P. No.81808/2011: 28. It is relevant to note that Koganti had established biomass energy plant at Valkamdinni Village, Sindanur Taluk, Raichur District and had entered into a PPA with KPTCL on 09.03.2001 for a period of twenty years agreeing to supply the electricity generated to the State grid. KPTCL had agreed to pay the following tariff for the power generated by Koganti at its biomass project:- "5.1 Monthly Energy Charges: Corporation shall for the Delivered Energy pay for the first 10 years from the date of signing of Agreement, to the Company every month during the period commencing from the Commercial Operation Date on the basis of the base price applicable for the years 1994-95 at the rate of Rs.2.25 (Rupees Two and twenty five paise) per kilowatt-hour (the tariff) for energy delivered to the Corporation at the Metering Point with an escalation at a rate of 5% per annum over the tariff application for the previous year as per guidelines issued by the Ministry of Non-Conventional Energy Sources of the GoI." - 95 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 29. After the incorporation of ESCOMs, the generators were assigned to the concerned ESCOMs. In the instant case, Koganti was assigned to GESCOM. The PPA executed between Koganti and KPTCL was unilaterally terminated by GESCOM on 05.07.2003. Koganti challenged the termination before this Court in W.P.No.46781/2003. Thereafter, negotiations were held and Koganti agreed to enter into a SPPA with GESCOM on 28.03.2006 in terms of which, the tariff for electricity generated and supplied was reduced to the following : "5.1 Monthly Energy Charges: GESCOM shall for the Delivered Energy pay, for the first 10 years with effect from 9-3-2001 (the date of signing of "The Agreement") to the Company for the period commencing from the Commercial Operation Date, every month at the rate of Rs.3.10 (Rupees Three and Ten paise only) per kilowatt-hour ("base tariff") for the proportionate energy corresponding to the exportable earlier capacity of 5.4 MW and at the rate of Rs.2.85 (Rupees Two and Eighty Five Paise only) Per Kilowatt-hour ("base tariff") for the energy over and above the Capacity of 5.4MW and upto 6.75MW (Presently agreed Exportable Capacity), delivered to GESCOM at the Metering Point with a respective escalation at the rate of 2% - 96 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS per annum over respective "base tariffs" every year. This shall mean that the annual escalation will be at the rate of Rs.0.062 per Kwhr and Rs.0.57 per Kwhr. respectively." 30. The PPA prescribed that the tariff agreed thereunder was for the first ten years and had to be revised after mutual discussions. The said clause is extracted below: "5.2 From the 11th year onwards, from the date of signing of Agreement, Corporation shall pay to the Company for the energy delivered at the Metering Point at a rate agreed by mutual negotiations. In case the Parties do not arrive at a mutual agreement on the tariff, the Company shall be permitted to sell power to third parties and enter into a Wheeling and Banking Agreement with Corporation to sell power through the Corporation grid for which it shall pay wheeling charges to Corporation at the rates applicable from time to time in addition to banking charges at the rates applicable from time to time as approved by the Commission, based on the month end balance of the energy banked." 31. Later, the State Government issued the First order u/s 11 followed by a Corrigendum dated 03.05.2010, in terms - 97 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS of which it reviewed the purchase of energy from biomass projects during the summer months of April, May and June 2010 to tide over the power crisis and offered price of Rs.5/- per unit, subject to approval of KERC. It was stated that the rate of Rs.5/- per unit was temporary and was subject to approval of KERC and all State ESCOMs to submit a memorandum on the circumstances warranting higher price and need of the State to procure more power. The Government Order dated 06.04.2010 reads as follows: (underlining by Court) "GOVERNMENT ORDER NO.EN 29EEB 2010, BANGALORE, DATED 6TH APRIL 2010 1. Under the circumstances explained above, Government are pleased to accord approval to purchase power as short-term arrangement for the period from April and May 2010 from Bio- mass projects units at Rs.5.00 (Rs. Five only) per Kwh. 2. Payment of this rate to Bio-mass project units, which are supplying the above power under Power Purchase Agreement, is subject to approval by the Karnataka Electricity Regulatory Commission, with reference to the applications - 98 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS to be filed by Electricity Supply Companies (ESCOMs), in this behalf. 3. For Bio-Mass Projects Units without Power Purchase Agreement, the above rate is provisional and is subject to approval of Karnataka Electricity Regulatory Commission (KERC). 4. All State Electricity Supply Companies (ESCOMs) shall submit a Memorandum on the circumstances and need of the State to procure power from Bio-Mass Projects Units before the Karnataka Electricity Regulatory Commission (KERC) immediately. 5. This order shall come into immediate effect and the above rates will be in force till 31st May 2010 or until further orders whichever is earlier." 32. GESCOM did not file any application before KERC mentioning the circumstances warranting “higher price” or “need of the State to procure more power” or for approving the price of Rs.5/- per unit offered by the State Government. However, an association of Sugar Mills, BESCOM, Steel factories, Cement factories and other generators filed Petitions - 99 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (O.P.No.16/2010 and connected petitions) before the KERC for approving the rate fixed by the State Government under its Order dated 06.04.2010. The KERC thereafter, in terms of its Order dated 24.03.2011 held, “The generators with existing PPAs are therefore obliged to supply power at rates specified in the agreement to the extent of supplies committed in the PPAs and the higher rate of Rs.5/- per kwh shall be applicable only if the supplies are made over and above the normal PPA obligations. For determining the normal supply obligation of such generators, we direct that the utilities shall take into account the quantum of power supplied by them during the months of April, May and June during the previous three years and any supplies made in excess of the average supply of the last three years shall be eligible for payment of Rs.5/- per kwh.” 33. After the above order was passed by KERC, the State Government addressed a letter dated 28.04.2011 to five ESCOMs advising them to take steps to recover the excess paid only after it took a decision on a representation filed by South India Sugar Mills Association requesting it not to recover the - 100 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS excess paid. It also directed the ESCOMs to furnish the details of the excess amounts paid to the generators. 34. Since the SPPA executed by Koganti was in force during April 2010 to June 2010, an Official Memorandum dated 31.03.2011 was issued by GESCOM demanding Rs.1,42,51,499/- being the excess amount paid, which is challenged in W.P.No.81808/2011. 35. Therefore, the following two questions arise for consideration:- (i) Whether GESCOM could re-claim the amounts paid to Koganti based on the Order passed by KERC dated 24.03.2011 in O.P.No.16/2010 and connected petitions? (ii) Whether Koganti was bound to challenge the Official Memorandum dated 31.03.2011 issued by GESCOM before KERC in view of Section 111 of the Act, 2003? 36. In order to answer the first question, it is necessary to first refer to Section 11 of the Act, 2003 which reads as follows: - 101 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS "Section 11. (Directions to generating companies): (1) Appropriate Government may specify that a generating company shall, in extraordinary circumstances operate and maintain any generating station in accordance with the directions of that Government. Explanation. - For the purposes of this section, the expression “extraordinary circumstances” means circumstances arising out of threat to security of the State, public order or a natural calamity or such other circumstances arising in the public interest. (2) The Appropriate Commission may offset the adverse financial impact of the directions referred to in sub-section (1) on any generating company in such manner as it considers appropriate." 37. As to what is adverse financial impact is described by the Division Bench of this Court in GMR Energy Limited and another vs. Government of Karnataka and others [ILR 2010 KAR 2620] in the following words: "84. xxx Adverse financial impact means the electricity generated by virtue of the direction issued by the Government is not fetching the generating company the price which it would have fetched in the event of - 102 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS their supplying to the licencee or a customer, i.e., less than the same." 38. As stated above, the Government Order dated 06.04.2010 declared that the price of Rs.5/- per unit was “temporary” and was “subject to approval by KERC”. ESCOMs were directed to file appropriate applications before KERC for justifying payment of higher price. Neither Koganti nor GESCOM filed any petition to determine the “adverse financial impact” or to determine “the justification for payment of higher price” or “need of State to procure more power”. It may be that Koganti felt that the price tentatively fixed by the State Government was not “adverse” or that GESCOM did not feel the need to seek for a “higher price”. The circumstances in which Koganti was placed (such as it was operating in a dry arid zone where availability of bio-waste was affected during summer months, that its unit lay close to Telangana where bio-mass establishments were procuring raw material at higher costs thereby compelling Koganti to procure raw material at higher costs etc.,) never arose for consideration before KERC. Unless there was a fact check by the KERC regarding the - 103 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS circumstances faced by each generator lying within particular ESCOMs, its order dated 24.03.2011, cannot have universal application. Every generator has unique advantages and disadvantages, such as a generator within the jurisdiction of BESCOM may get huge raw materials at a subsidised cost as huge bio-waste is generated on daily basis unlike a generator in Gulbarga, where it has to depend on agricultural waste as raw material. Besides this, transportation of bio-waste could be easy, effective and cheaper for generators in and around Bengaluru. Therefore, comparing the two generators situate in two different geographic locations would be like comparing apples and oranges. Koganti was not even made a party in the proceedings before KERC let alone hearing it on the circumstances against reduction of the tariff tentatively fixed by the State Government. Therefore, the Order dated 24.03.2011 passed by KERC cannot be the basis to re-claim the excess amount paid to Koganti. If the act of GESCOM in re-claiming the amount paid is not interfered with, it would be emboldening GESCOM to condemn a person unheard. Therefore, the first question has to be held in the negative. - 104 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 39. This Court cannot gloss over the fact that when the Government issued the order dated 06.04.2010, it “realistically” arrived at the cost of procurement at Rs.5.02 per kwh and decided to purchase energy round the clock from Biomass projects at Rs.5-00 per kwh. Once the State Government issued an order under Section 11 of the Act, 2003, it invariably results in suspension of the PPA and Koganti in order to take advantage of the higher price offered by the State could have ramped up its production by purchasing raw material at a higher cost. Therefore, GESCOM is not justified in turning the table now, to contend that in view of the Order dated 24.03.2011, the excess energy charges paid to Koganti has to be recovered. Therefore, the impugned Official Memorandum dated 31.03.2011 issued by GESCOM directing recovery of Rs.1,42,51,499/- is liable to be set aside. 40. In so far as the second question is concerned, the PPA dated 09.03.2001 did provide for resolution of disputes through arbitration, which reads as follows: - 105 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS "ARBITRATION 10.1 All disputes or differences between the Parties arising out of or in connection with this Agreement shall be first tried to be settled through mutual negotiation. 10.2 In the event of such differences or disputes between the Parties not settled through mutual negotiations within ninety (90) days of such dispute, it shall be settled by arbitration. The arbitration shall be conducted in accordance with the provisions of "Arbitration and Conciliation Act 1996" and any statutory modification thereto from time to time. The language of the arbitration shall be English and the place of arbitration shall be Bangalore. 10.3 Any dispute submitted to arbitration shall be considered by three arbitrators, two of whom shall be nominated, one by Company and one by Corporation. If within 30 (thirty) days of the receipt of a Party's notification of the appointment of an arbitrator, the other Party has not notified the first Party of the arbitrator it has appointed, the first Party may apply for the appointment of the second arbitrator in accordance with the Arbitration and Conciliation Act, 1996. The third arbitrator - 106 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (who will act as chairman) will be nominated by the other two arbitrators. 10.4 The Company and Corporation undertake to carry out any decision or award of the arbitrators relating to such dispute without delay. The arbitrators shall give a reasoned decision or award. 10.5 The decision of the arbitrator/s shall be final and binding on the Parties. The courts of Karnataka alone shall have jurisdiction in all matters arising under this Agreement. 10.6 The fees and costs towards the arbitration are to be borne by the Party which seeks arbitration proceedings for settlement of any dispute. The arbitrator may, with the consent of the Parties, extend the time taken to make and publish award. 10.7 Not withstanding the existence of any disputes referred to arbitration, the Parties shall continue to perform their respective obligations under this Agreement and the Parties shall not withhold, for any reason whatsoever including the pendency of arbitration proceedings, - 107 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS payment of any undisputed amount which has become due under this Agreement." 41. However, the dispute between Koganti and GESCOM regarding the amount paid to Koganti pursuant to the Government Order dated 06.04.2010, did not arise out of the PPA dated 09.03.2001. This is a dispute that has arisen as a result of the order passed by the State Government under Section 11 of the Act, 2003. Therefore, Koganti cannot be relegated to arbitration as provided under the PPA or under Section 86 of the Act, 2003. As regards, the remedy of an appeal before the KERC challenging the Official Memorandum dated 31.03.2011, it is relevant to note that the Official Memorandum was based on the order dated 24.03.2011 passed by KERC, where neither GESCOM nor Koganti was a party. GESCOM did not file any application before KERC to justify "higher rate" than that was tentatively fixed by the State Government. Therefore, Koganti was exposed to a recovery without even being heard in the matter, which did infringe its right guaranteed under Article 14 of the Constitution of India. The impugned Official Memorandum is based on the Order of - 108 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS KERC dated 24.03.2011 and therefore, Koganti cannot be expected to go before KERC as it is very unlikely that KERC would reverse the claim, more particularly when the order dated 24.03.2011 is upheld by the APTEL in Appeal Nos.141/2011, 142/2011 and 10/2012. As rightly contended by the learned counsel for Koganti, abstinence from exercising jurisdiction under Article 226 of the Constitution of India in the face of an alternative remedy, is not a straitjacket but a self imposed rule of caution by the Court. However, if the remedy of an appeal is illusory or ineffective or the order impugned violates the fundamental rights or if the procedure adopted in passing the impugned order is in violation of the principles of natural justice, this Court would not hesitate to exercise jurisdiction. As stated supra, the remedy of an appeal before KERC would be a wasteful exercise and would sub-serve no useful purpose and hence, this Court is entitled to exercise jurisdiction. 42. In so far as the rates of interest to which Koganti was entitled to on the amount deducted pursuant to the impugned Official Memorandum, it is relevant to refer to clause 6.3 of the PPA dated 09.03.2001, which is extracted below: - 109 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS "6.3 Late payment: If any payment from Corporation is not paid when due, there shall be due and payable to the Company penal interest at the rate of SBI Prime Lending Rate plus 2% per annum for such payment from the date of such payment was due until such payment is made in full." Therefore, Koganti is entitled to refund of the amount deducted along with interest as stated above. Findings in W.P.No.80966/2012 43. Findings in W.P.No.80966/2012 43. As stated earlier, the rates as agreed under the PPA was to be in force for a period of ten years and thereafter, the rates was to be mutually agreed upon, failing which permission would be given to the generator to sell energy to third parties, subject to payment of wheeling and banking charges. In the case on hand, the first ten years expired on 09.03.2011 and therefore, the price had to be mutually agreed upon for the next ten years. Koganti is stated to have demanded price of Rs.5.15 per unit, which purportedly was the price as per the PPA dated 09.03.2001 with escalation. Later Koganti withdrew this request by its letters dated 22.12.2011 and 09.01.2012 and sought 'No Objection Certificate' for sale of power to third - 110 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS parties through the exchange. Since the price demanded by Koganti was not acceptable to GESCOM, it permitted Koganti to sell power on 24.01.2012 followed by a NOC dated 27.01.2012. It is contended by Koganti that GESCOM did not consider payment of arrears based on the rates as agreed under PPA. It has contended that the rate fixed for supplies made by M/s. Indira Power Energies Ltd., M/s. Koppal Green Pvt. Ltd., M/s. Powernic are higher than what was fixed in the SPPA executed by Koganti. Likewise, M/s. R.K. Power Gen Pvt. Ltd., had filed a petition before KERC challenging termination of the PPA. KERC held that the termination was invalid and ESCOM was directed to pay the charges as per PPA. 44. Koganti which had withdrawn W.P.No.46781/2003 unconditionally, later voluntarily entered into a SPPA dated 28.03.2006 agreeing to supply the electricity generated at a reduced tariff. The claim of Koganti that it was forced by circumstances to enter into SPPA is belied by its own letters dated 22.12.2011 and 09.01.2012, where it expressed its willingness to enter into a SPPA and agreed to supply electricity at reduced tariff, mentioned supra. Koganti attempted to take - 111 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS advantage of some orders passed in favour of other generators giving them the benefit of higher tariff. GESCOM has agreed that higher tariff was paid to M/s. Indira Power Energies Ltd., M/s. Koppal Green Pvt. Ltd, M/s. Powernic and M/s. R.K. Power Gen Pvt. Ltd., but contended that if Koganti was entitled to similar treatment, it must have raised it by way of proceedings before KERC. However, having regard to the fact that Koganti had voluntarily entered into a SPPA, it cannot take advantage of a different tariff granted to another generator by seeking for restoration of the tariff agreed under PPA dated 09.03.2001 or to declare the SPPA as void and to pay the arrears of electricity supplied at rates as agreed under PPA dated 09.03.2001. Hence, Koganti is not entitled for any reliefs in this writ petition. 45. Nonetheless, PPA which was terminated was reinstated by a SPPA dated 28.03.2006. For the sake of convenience, the relevant clauses of SPPA are extracted below: "Clause (vii) During the pendency of the writ petition it has been agreed to reinstate the terminated contract subject to the condition that the company agrees to sell electricity at the rate of - 112 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Rs.3.10/unit for proportionate energy exported corresponding to the exportable earlier capacity of 5.4 MW and at the rate of Rs.2.85/unit for balance energy over and above 5.4 MW and up to 6.75 MW (presently agreed Exportable Capacity) and with excalation at 2% per annum is payable. The above has been accepted by M/s KOGANTI POWER LIMITED vide their letter dated 02.09.2005." "Clause (vii) As the PPA was terminated and as the company has not yet commissioned the project, the project was not assigned to any of the ESCOMs. As per the above GO, M/s KOGANTI POWER LIMITED need to be assigned to GESCOM as the geographical jurisdiction comes under GESCOMs purview." "Clause 3: This Supplemental Agreement shall form and be construed as a Part of the Agreement dated 09.03.2001 and all other terms and conditions and clauses as contained in the Agreement dated 09.03.2001 shall remain unaltered and enforceable and binding on the parties." Therefore, the covenants of PPA that were modified by SPPA related only to enhanced capacity of the plant installed by Koganti and the tariff for supply of electricity generated. The tenure of the PPA was not disturbed, but both Koganti and - 113 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS GESCOM agreed to "reinstate" the PPA thereby meaning that the unilateral termination of PPA by GESCOM was withdrawn, implying that the PPA was in force till the date of execution of SPPA. Though it is mentioned that Koganti had not commissioned the project as on the date of SPPA, since this appears to be hazy, it is only appropriate to grant the benefit to Koganti by holding that it shall be entitled to tariff at PPA rates in respect of energy supplied (if any) till the date of execution of SPPA. Findings in W.P.No.81089/2012 46. As stated above, the State Government issued the second Order u/s 11 and directed the supply companies to approach the KERC for determining the adverse financial impact. For the sake of immediate reference, the Order under Section 11 of Act, 2003 is extracted below: "GOVERNMENT ORDER NO.EN 2 PPC 2012, BANGALORE, DATED 27TH JANUARY 2012 In the circumstances explained in the Preamble and in exercise of the powers conferred under section- 11 of Electricity Act 2003, the State Government - 114 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS hereby issues the following directions in the public interest with effect from 1st February 2012 and will be in force till 31st May 2012 or until further orders whichever is earlier: a) All the Generators in the State of Karnataka shall operate and maintain their generating stations to maximum exportable capacity and shall supply all exportable electricity generated to the State Grid for utilization within the State subject to following conditions: i) The tentative tariff for supply of energy by the Generators under section 11 and who do not have Power Purchase Agreement with Electricity Supply Companies shall be Rs.5.30/unit subject to determination of final tariff by Hon'ble KERC. ii) Joint meter readings taken by ESCOMs on 31.01.2012 midnight shall be basis for raising the monthly bills. iii) LC will be provided by the ESCOMs to the extent of cost of power allocated. iv) Rebate of 2% shall be allowed on the bill amount if payment is made within 5 days from the date of presentation of bill or other - 115 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS wise 1% shall be allowed if the payments are made within 30 days. v) Due date for making payment shall be 30 days from the date of presentation of the bill. vi) Surcharge at 1.25% per month shall be payable if the payments are made beyond due date. vii) The Jurisdictional Distribution Licensee shall raise the bill for the energy imported by the Generators under section 11. viii) Energy pumped by Generators under Section 11 shall be allocated amongst ESCOMs as per Govt., Order dated 12-10-2011 in line with CGS allocation and is as follows: BESCOM : 49.62% MESCOM : 08.33% CESC : 10.61% HESCOM : 18.18% GESCOM : 13.26% ix) The Generators shall raise the bills in the above proportion to respective ESCOMs. b) The above tariff is provisional and is subject to approval of Karnataka Electricity Regulatory Commission (KERC). - 116 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS c) The above proposal shall not be applicable for the Intra-State Generators who are having valid PPA's with the Distribution Licensees in the State of Karnataka. d) All State Electricity Supply Companies (ESCOMs) shall submit a Memorandum on the power situation within 15 days from date of this order before the Karnataka Electricity Regulatory Commission (KERC) and request to fix the tariff for supply of energy by the Generators source- wise (i.e. Cogeneration, Biomass, Captive, IPP, etc) under Section 11 of Electricity Act 2003." 47. Koganti has challenged the above order on the ground that the State Government has no authority to issue an order under Section 11 of the Act, 2003 and also in fixing the tariff at Rs.5.30 per unit while it was purchasing energy in the open market at Rs.7/- to Rs.10/- per unit. 48. Under Section 11 of the Act, 2003, the State is entitled to issue directions to all generators in the State to generate and supply electricity to the grid to tide over a crisis of shortage of electricity. This position of law is underscored by the Hon’ble Supreme Court in Gujarat Urja Vikash Nigam - 117 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Ltd., vs. Essar Power ltd., [2008 AIR SCW 2169]. Therefore, the petitioner cannot challenge the authority of the State to issue orders for supply of the electricity generated to the grid. The State is bound to strike a balance between all the stakeholders namely, the consumers/generators and distribution licencees of electricity and thereby ensure the overall development of all sectors. The State cannot leave a crisis unattended as that would be like letting a cat amongst the pigeons. As regards the contention that the State was importing power at Rs.7/- to Rs.10/- per unit and therefore, could not have fixed a sum of Rs.5.30 per unit for the generators to generate and supply, it should be noted that the conditions necessitating short-term purchase of energy cannot be the basis for fixing the tariff for supply for several months. The tariff is not fixed unscientifically but is fixed rationally by taking into account the investment in the project, the investment on raw material and its transportation, the expenses of operation and maintenance of the plant, labour cost, the return on investment to enable the generator to repay the loan and some profit for the promoters etc. Once the generator clears the outstanding raised for establishing the - 118 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS plant, then the tariff would be determined by taking the investment in the plant as zero. Having regard to the responsibility of the State to maintain a balance between all the stakeholders, it is entitled to fix the tariff for the generators to generate and supply electricity. However, if any generator suffered from any adverse financial impact, Section 11(2) of the Act, 2003 empowered the generator to approach the KERC to offset the adverse financial impact. Therefore, no indulgence can be shown to Koganti in this writ petition. Findings in W.P.No.85561/2012 49. After the State Government issued the second Order u/s 11, neither Koganti nor GESCOM approached KERC to offset the adverse financial impact but on the contrary, a few other generators approached the KERC seeking for higher tariff than what was offered by the State. The KERC in terms of the Order dated 18.08.2016 held that in respect of those generators, who had subsisting PPA, the tariff would remain the same and in respect of others who did not have PPA, the tariff would be Rs.4.67 per kwh. - 119 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 50. GESCOM construed that the SPPA executed by Koganti was still in force and hence, issued an order dated 29.08.2012 paying a sum of Rs.3.410 per unit upto 5.4 MW and Rs.3.135 per unit above 5.4 MW for the period Jan 2012 to April 2012 and deducted Rs.1,40,80,606/- from the bills payable. 51. Once the tariff for supply of electricity after expiry of ten years from the date of PPA was not finalised, the PPA had spent in itself. The tariff was fundamental to the enforceability of the SPPA and therefore, GESCOM was not justified in falling upon an unenforceable PPA to pay the tariff as per SPPA in respect of energy supplied during Jan 2012 to April 2012. Besides this, GESCOM had given NOC for supply of energy to third parties, subject however to payment of wheeling and banking charges. Therefore, even as per the understanding of GESCOM, SPPA did not exist and even if it did was not enforceable. Therefore, it had to pay tariff as offered by the State by considering that there was no PPA with Koganti. Consequently, W.P.No.85561/2012 deserves to be allowed. Having regard to the fact that GESCOM has harassed - 120 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Koganti by misapplying the Order of KERC dated 18.08.2016 to Koganti and has harassed it by deducting a huge sum of money from the bills payable to it, GESCOM is bound to make good the loss suffered by GESCOM by paying up interest. Hence, Koganti is entitled to refund of Rs.1,40,80,606/- along with interest at 18% per annum from February/March/April/May 2012 when portions of Rs.1,40,80,606/- became payable till the date of actual payment. Findings in W.P.No.205114/2016 52. The State Government issued an order dated 16.09.2015 under Section 11 of the Act, 2003 requiring all generators to compulsorily supply the power generated to the grid and provisionally fixed the tariff at a sum of Rs.5.08 per unit, subject to approval of KERC. The generators interested to seek offsetting of the adverse financial impact were at liberty to approach KERC under Section 11(2) of the Act, 2003. Likewise, the ESCOMs were directed to approach the State Commission for fixing the tariff for supply of energy by the generators source wise. GESCOM which had filed a petition stated that “the State Government had fixed the tariff after taking into - 121 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS consideration the past tariff fixed in the exercises undertaken under Section 11(2) of the Act, 2003 and the short-term procurement rate and that the same was done under extraordinary circumstances, in public interest. That in the circumstances, it is just and necessary to approve the tariff fixed by the State Government”. (underlined by Court) 53. It is therefore, clear that GESCOM was also of the opinion that the price fixed by the State Government was just and proper and hence, requested the KERC to approve the rate provisionally determined by the State Government. None of the generators were added as parties in the petitions filed by BESCOM, CHESCOM, MESCOM, GESCOM, HESCOM, presumably because these ESCOMs were also of the opinion that the price provisionally fixed by the State Government was proper. The KERC published the gist of the proceedings in several newspapers and informed persons interested to file their responses. In response, three steel plants and a sugar factory appeared and filed responses contending that they had all entered into bilateral contracts to supply energy generated at their plants to Telangana and Andhrapradesh under medium - 122 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS and short-term open access at prices higher (Rs.5.40 per unit and Rs.5.83 per unit) than what was provisionally fixed by the State Government at Rs.5.08 per unit and therefore, requested the KERC for a direction to ESCOMs to pay the differential tariff to offset the adverse financial impact. 54. During the hearing of the petitions, both BESCOM and CHESCOM urged that the provisional tariff fixed by the State Government (at Rs.5.08 per unit) be approved. These ESCOMs furnished details of power supplied by the generators pursuant to order passed by the State Government under Section 11 of the Act, 2003 and the quantum and price paid for the power purchased from power exchanges. However, they did not furnish source-wise classified details of energy supplied by the various type of generators. In the absence of details, the KERC proceeded to consider the question of adverse financial impact on the generating companies by relying upon its earlier order dated 24.03.2011 (referred supra) in O.P.No.16/2010 and connected petitions and the Order dated 22.05.2013 in O.P.No.14/2012 and connected petitions. - 123 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 55. The KERC which was completely oblivious of the cost data of a biomass based generator, relied upon the short- term purchase of power by the State Government between 25.08.2015 to 31.05.2016 at the rate of Rs.5.08 per unit, which was the price provisionally adopted under the order dated 16.09.2015 under Section 11 of the Act, 2003. It however, noticed that the monthly weighted average rates of short-term power in bilateral trade through traders as published by the Central Electricity Regulatory Commission was a sum of Rs.4.45 per unit. Therefore, it jumped to the conclusion that adopting a uniform rate of Rs.5.08 per unit for the period when the Government Order dated 16.09.2015 was issued was not justified. In so far as the biomass projects were concerned, it noticed that the weighted average worked out to Rs.4.67 per unit. Therefore, it passed an order determining the tariff at Rs.4.67 per unit of power generated and supplied by the generators, which affected Koganti as well. It also directed the ESCOMs to issue notice to the generators to recover the excess paid, failing which, the generators were bound to pay interest at 1.5% per month. Following this, MESCOM issued the impugned notice demanding Rs.7,08,129/- being the excess - 124 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS amount paid towards supply of electricity for the period 16.09.2015 to 31.05.2016. Likewise, BESCOM had raised a demand of Rs.43,92,931/- based on the order passed by the KERC. 56. It is no doubt true that Koganti was entitled to participate in the proceedings before the KERC to justify the provisional tariff fixed by the State Government at Rs.5.08 per unit. However, the five ESCOMs who had filed petitions had prayed the KERC to approve the tariff at Rs.5.08 per unit. It is therefore, understandable as to why Koganti did not participate in the proceedings before the KERC. The KERC, without having any details of the cost-wise data of the generators based on the method of generation of power, proceeded to determine the tariff at a reduced price of Rs.4.67 per unit based on the monthly weighted average rate of short-term power purchase through traders as published by Central Electricity Regulatory Commission. The KERC therefore, was making a guess work of the price instead of determining the price by collating the cost- wise data project-wise. It is a matter of common sense that rate for short-term sale of energy could be influenced by - 125 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS various circumstances such as availability of more energy, difficulty to store power, competition etc. This, at any rate, cannot be the basis of determining the rate of energy supplied by generators within the State. As a matter of fact, the State Government in its Order dated 16.09.2015 had stated that there was a steep increase in the exchange rates with average rates going up from Rs.4.65 per unit to Rs.8.55 per unit and in later days peaked between Rs.9 to Rs.10.55 per unit. Under the circumstances, the impugned notices issued by MESCOM and BESCOM to Koganti deserves to be interfered with. Consequently, W.P.No.205114/2016 deserves to be allowed. Findings in W.P.No.13043/2011 57. Ravi Kiran had proposed to develop a biomass based power generating station with a gross capacity of 6 MW near Marlanahalli Village, Gangavathi Taluk, Koppal District and desired to sell the exportable capacity to KPTCL, which had agreed to purchase the exportable capacity from Ravi Kiran. Accordingly, a PPA dated 10.06.2002 was entered into between Ravi Kiran and KPTCL incorporating the terms and conditions of the agreement. Under the agreement, the "commercial - 126 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS operation date" of the project was agreed to be the date on which the project was available for commercial operation and such date as specified in a written notice given atleast ten days in advance by Ravi Kiran to KPTCL which in any case, was not to spill over the scheduled date of completion. The "scheduled date of completion" was agreed to be the date on which the project was scheduled to deliver electricity to KPTCL at the delivery point after completion of all required tests, which was to be within one and a half years from the effective date. The "effective date" was agreed to be the date on which all conditions precedent as mentioned in clause 2.1 was either satisfied in full or such conditions precedent, which are unfulfilled are waived by the parties. The "conditions precedent" as contained in clause 2.1 are extracted below: "CONDITIONS PRECEDENT 2.1 Conditions Precedent: The obligations of Corporation and the Company under this Agreement are conditional upon the occurrence of the following in full: a. The Company shall have been granted and received all permits, clearances and approvals - 127 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (whether statutory or otherwise) as are required to execute and operate the Project (hereinafter referred to as "Approvals'), b. The Financial Closure shall have occurred. The date on which the Company fulfils any of the Conditions Precedent pursuant to Article 2.1, it shall promptly notify the Corporation of the same. 58. KPTCL had agreed to pay for the first ten years from the date of signing the agreement at the rate of Rs.2.25 per kwh at the metering point with an escalation of 5% per annum over the tariff applicable for the previous years as per the guidelines issued by the Ministry of Non-Conventional Energy Sources of the Government of India. 59. The events of default on the part of Ravi kiran and KPTCL were mentioned in the agreement, which are extracted below: "9.2 Events of Default: 9.2.1 Company's Default: The occurrence of any of the following events at any time during the Term of this Agreement shall constitute an Event of Default by Company: - 128 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS a. O&M Default on part of Company b. Failure or refusal by Company to perform its material obligations under this Agreement. 9.2.2 Corporation's Default: The occurrence of any of the following at any time during the Term of this Agreement shall constitute an Event of Default by Corporation: 1. Failure or refusal by Corporation to perform its financial and other material obligations under this Agreement." 60. The clause for termination for default by Ravi Kiran was also provided, which is extracted below:- "9.3 Termination 9.3.1 Termination for Company's Default: Upon the occurrence of an even of default as set out in sub-clause 9.2.1 above, Corporation may deliver a Default Notice to the Company in writing which shall specify in reasonable detail the Event of Default giving rise to the default notice, and calling upon the Company to remedy the same. - 129 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS At the expiry of 30 (thirty) days from the delivery of this default notice and unless the Parties have agreed otherwise, or the Event of Default giving rise to the default notice has been remedied, Corporation may deliver a Termination Notice to the Company, Corporation may terminate this Agreement by delivering such a Termination Notice to the Company and intimate the same to the Commission. Upon delivery of the Termination Notice this Agreement shall stand terminated. All payment obligations as per the Article 5 prior to the date of termination of the Agreement shall be met by the Parties. Where a Default Notice has been issued with respect to an Event of Default which requires the co-operation of both Corporation and the Company to remedy, Corporation shall render all reasonable co-operation to enable the Event of Default to be remedied. 9.3.2 Termination for Corporation's Default: Upon the occurrence of an Event of Default as set out in sub-clause 9.2.2 above, the Company may deliver a Default Notice to Corporation in - 130 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS writing which shall specify in reasonable detail the Event of Default giving rise to the Default Notice, and calling upon Corporation to remedy the same. At the expiry of 30 (thirty) days from the delivery of this default notice and unless the Parties have agreed otherwise, or the Event of Default giving rise to the Default Notice has been remedied, Company may deliver a Termination Notice to Corporation. Company may terminate this Agreement by delivering such a Termination Notice to Corporation and intimate the same to the Commission. Upon delivery of the Termination Notice this Agreement shall stand terminated. Where a Default Notice has been issued with respect to an Event of Default which requires the co-operation of both Company and Corporation, to remedy, Company shall render all reasonable co-operation to enable the Event of Default to be remedied." 61. An extensive dispute resolution mechanism through arbitration was incorporated in Clause No.10, which is extracted below: - 131 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS "ARBITRATION 10.1 All disputes or differences between the Parties arising out of or in connection with this Agreement shall be first tried to be settled through mutual negotiation. 10.2 In the event of such differences or disputes between the Parties not settled through mutual negotiations within ninety (90) days of such dispute, it shall be settled by arbitration. The arbitration shall be conducted in accordance with the provisions of "Arbitration and Conciliation Act 1996" and any statutory modification thereto from time to time. The language of the arbitration shall be English and the place of arbitration shall be Bangalore. 10.3 Any dispute submitted to arbitration shall be considered by three arbitrators, two of whom shall be nominated, one by Company and one by Corporation. If within 30 (thirty) days of the receipt of a Party's notification of the appointment of an arbitrator, the other Party has not notified the first Party of the arbitrator it has appointed, the first Party may apply for the appointment of the second arbitrator in accordance with the Arbitration and Conciliation Act, 1996. The third arbitrator - 132 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (who will act as chairman) will be nominated by the other two arbitrators. 10.4 The Company and Corporation undertake to carry out any decision or award of the arbitrators relating to such dispute without delay. The arbitrators shall give a reasoned decision or award. 10.5 The decision of the arbitrator/s shall be final and binding on the Parties. The courts of Karnataka alone shall have jurisdiction in all matters arising under this Agreement. 10.6 The fees and costs towards the arbitration are to be borne by the Party which seeks arbitration proceedings for settlement of any dispute. The arbitrator may, with the consent of the Parties, extend the time taken to make and publish award. 10.7 Not withstanding the existence of any disputes referred to arbitration, the Parties shall continue to perform their respective obligations under this Agreement and the Parties shall not withhold, for any reason whatsoever including the pendency of arbitration proceedings, payment of any undisputed amount which has become due under this Agreement." - 133 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 62. KPTCL issued a notice of termination dated 05.07.2003 thereby terminating the PPA dated 10.06.2002 with immediate effect. The KPTCL did not point out the reason for unilateral termination of PPA. However, it offered to enter into a fresh agreement, if Ravi Kiran was willing to accept revised reduced tariff of Rs.2.80 per kwh with an annual escalation of 2% on the base tariff. 63. Ravi Kiran challenged the aforesaid termination before this Court in W.P.No.11266/2004, where this Court granted an interim stay of the termination vide order dated 12.04.2004. It appears from the order passed by the KERC in O.P.No.14/2008 that Ravi Kiran by its letter dated 12.11.2005 was requesting KPTCL to expedite the matter concerning a SPPA and for issuing the same at the earliest. It also appears that the rate offered by KPTCL was agreed by Ravi Kiran after several discussions. Consequent thereto, SPPA dated 14.11.2006 was entered into by which, PPA dated 10.06.2002 was reinstated with one modification regarding the price for the supply of energy. The State Government vide its order dated - 134 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 28.09.2002 had granted sanction to Ravi Kiran for enhancement of its biomass power plant capacity from 6 MW to 7.5 MW. 64. It also appears from a letter dated 31.01.2006 written by Ravi Kiran, wherein it stated, "As a matter of fact, the rate of Rs.2.80 is not acceptable to our funding institutions who have accepted the project and sanctioned the term loans based on PPA executed by us with KPTCL on 10.06.2002, which in turn has primarily taken into consideration of the guidelines set out by the Ministry of Non-Conventional Energy Sources the project was appraised in its totality, had a severe setback due to the unilateral cancellation of the PPA and consequently, affected the progress of the project implantation as well as the running of the plant after its commissioning. We request you Sir to appreciate that we had no option left except to continue the project since several crores of rupees was already spent or pledged with the institutions as collateral before the cancellation of PPA. In that scenario, KPTCL offered us to pay Rs.3.10 per unit provided we sign SPPA with them as per the terms and conditions laid down by them. We agreed to do so. Accordingly, we have signed the draft Supplemental agreement in - 135 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS November, 2005. We have appealed several times for the early conclusion of PPA but we have not received any communication till date for signing of the supplemental PPA. Meanwhile, due to inordinate delay and consequential financial constraints, we have taken new partners. In anticipation of any structural changes in our organization, we requested you recently to keep the signing of the supplemental in abeyance as the same has been in any case pending with KPTCL for over nine months. Notwithstanding the facts stated in the preceding paragraphs, we wish to reiterate that we will be supplemental PPA with GESCOM on the same lines as has been signed by us in its draft form on any convenient date agreeable mutually." 65. Following the above, SPPA dated 14.11.2006 was entered into between Ravi Kiran and GESCOM. Ravi Kiran thereafter, generated electricity and started supplying to the grid. In the meanwhile, M/s. R.K. Powergen Private Ltd, who was similarly placed as Ravi Kiran challenged the cancellation of the PPA in W.P.No.45077/2003, where the Court had granted interim stay of the termination of the PPA. On an application filed by KPTCL for modification of an interim order dated - 136 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS 16.10.2003, the Court had directed KPTCL to deposit Rs.5,00,00,000/- in any branch of the State Bank of India in a fixed deposit for two months. This was challenged by M/s R.K. Powergen Private Ltd., in W.A.No.3961/2005. The Division Bench of this Court considered W.P.No.45077/2003 and W.A.No.3961/2005 and disposed off the writ petition directing M/s. R.K. Powergen to challenge it before the KERC and stayed the letter of termination of PPA till the regulatory Commission passed an order. Following the above, W.P.No.11266/2004 filed by Ravi Kiran was disposed off reserving liberty to Ravi Kiran to seek redressal of its grievance before the KERC within four weeks. 66. Ravi Kiran thereafter filed O.P.No.14/2008 before the KERC challenging the termination of the PPA as well as to set aside the SPPA and to direct GESCOM to make payments as per the PPA dated 10.06.2002. In the petition filed, Ravi Kiran contended as follows: (i) that termination of PPA dated 10.06.2002 was without assigning any reason and therefore, capricious and arbitrary. - 137 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (ii) that despite an interim order of stay granted in W.P.No.11266/2004, GESCOM was not bother to make the payments at the rates contained in the PPA. It exploited the plight of Ravi Kiran, who had borrowed huge sums of money from bank for the project. (iii) that the SPPA reinstated the PPA dated 10.06.2002 meaning thereby that the PPA dated 10.06.2002 was not terminated. (iv) that Ravi Kiran under acute financial hardship, had no other option but to accept the signing of the SPPA. 67. In order to establish that Ravi Kiran had executed SPPA under duress or coercion, it was incumbent upon Ravi Kiran to place on record the trail of communication between it and GESCOM to demonstrate how it was forced into executing the SPPA. The contention that Ravi Kiran had raised huge loan for establishing the project and that GESCOM was not paying the bills for the supplies made until a SPPA was entered into, would in itself not be sufficient to establish that Ravi Kiran was - 138 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS forced or coerced by GESCOM to enter into a SPPA. If according to Ravi Kiran, the price at which power was agreed to be purchased was far less than the price in the market, nothing prevented Ravi Kiran to take advantage of wheeling and banking facility to enter into private transaction with other ESCOMs or with other entities. Though the claim of Ravi Kiran that PPA was unilaterally terminated without any reason, merits acceptance, its consequent act of entering into a SPPA obliterated its cause of action against the termination of the PPA. It appears that Ravi Kiran was trying to bail itself out by getting a commitment from GESCOM for purchase of power generated and had entered into the SPPA knowing fully well the consequences. 68. In this regard, it is profitable to refer to the judgment of the Hon'ble Apex Court in the case of Transmission Corporation of Andhra Pradesh Ltd., and another vs. Sai Renewable Power Private Ltd., and others [(2011) 11 SCC 34], where it was held, "to frustrate a contract on the ground of duress or coercion, there have to be definite - 139 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS pleadings which have to be substantiated normally by leading and cogent and proper evidence. However, in the case where summary procedure is adopted like present one, at least some documentary evidence or affidavit ought to have been filed raising this plea of duress specifically." 69. In similar circumstances, the Hon'ble Supreme court in the case of Gujarat Urja Vikas Nigam Limited and others vs. Renew Wind Energy (Rajkot) Private Limited and others [2023 SCC OnLine SC 411], supra, held as follows:- "74. In the present case, this salutary rule was thrown to the wind, by the State Commission. In this court’s opinion, APTEL, in the most cavalier fashion, virtually rubber stamped the State Commission’s findings on coercion, in regard to the entering into the PPA by the parties. There was no shred of evidence, nor any particularity of pleadings, beyond a bare allegation of coercion, alleged against Gujarat Urja. It is incomprehensible how such an allegation could have been entertained and incorporated as a finding, given that the respondents are established companies, who enter into negotiations and have the support of experts, including legal advisers, when contracts are finalized. The findings regarding - 140 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS coercion are, therefore, wholly untenable. This court is also of the opinion that the casual approach of APTEL, in not reasoning how such findings could be rendered, cannot be countenanced. As a judicial tribunal, dealing with contracts and bargains, which are entered into by parties with equal bargaining power, APTEL is not expected to casually render findings of coercion, or fraud, without proper pleadings or proof, or without probing into evidence. The findings of coercion are therefore, set aside." 70. As stated earlier, under the PPA dated 10.06.2002 Ravi Kiran was obliged to supply power at the rates agreed for the initial period of ten years and for the next ten years, the price had to be mutually agreed upon and in case of any disagreement, Ravi Kiran was entitled to sell power to third parties and enter into a wheeling and banking agreement by paying the wheeling charges to GESCOM. Therefore, the contention of Ravi Kiran that generation of electricity through renewable sources was still in the infant stages in Karnataka and that it had raised huge sums of money for the project and that the GESCOM had failed to pay charges for the energy supplied thereby crippling the activities, is no good ground to - 141 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS contend that Ravi Kiran was under duress to enter into a SPPA and in agreeing to sell power at a reduced price. 71. It is now stated at the bar that Ravi Kiran thereafter terminated the SPPA on 27.02.2012 and entered into a PPA with P.T.C. India limited on 01.06.2012. However, the State Load Dispatch Centre (SLDC) declined to issue NOC to Ravi Kiran for interstate sale of power. GESCOM filed O.P.No.7/2013 challenging the termination of the SPPA while Ravi Kiran filed O.P.No.227/2012 before the Central Electricity Regulatory Commission (CERC) challenging the rejection of NOC by SLDC. The CERC dismissed the petition filed by Ravi Kiran following which, GESCOM withdrew O.P.No.7/2013. Thereafter, Ravi Kiran challenged the Order dated 20.05.2013 passed in O.P.No.227/2012 before APTEL, which was also dismissed on 05.09.2014. 72. Ravi Kiran then filed O.P.No.33/2014 for a direction to GESCOM to provide wheeling and banking facilities, which was dismissed on 11.02.2016. Ravi Kiran then challenged it in Appeal No.84/2016 before APTEL which was allowed in part and KERC was directed to decide whether there was a valid - 142 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS termination of PPA dated 10.06.2002 and SPPA dated 14.11.2006. Ravi Kiran has challenged the order of APTEL before the Hon'ble Supreme Court which had granted leave and numbered as C.A.No.1510/2018. KERC had postponed the consideration of O.P.No.33/2014 in view of pendency of C.A.No.1510/2018. It is now informed that C.A. No.1510/2018 was dismissed. 73. It is therefore, apparent that neither the KPTCL nor GESCOM have facilitated the interstate sale of power by Ravi Kiran nor have they granted the wheeling and banking facility to Ravi Kiran for sale of power to third party within the State. This indeed is a classic case of apathy of State and its agencies towards an entrepreneur. 74. In view of the aforesaid, it is clear that though the PPA dated 10.06.2002 was unilaterally terminated by KPTCL, Ravi Kiran had voluntarily entered into the SPPA with GESCOM at reduced prices. Therefore, Ravi Kiran had given up its challenge to the unilateral termination of PPA dated 10.06.2002. Consequently, it is not entitled to challenge the - 143 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS PPA dated 10.06.2002 and execution of SPPA dated 14.11.2006 in this writ petition. 75. Besides this, the PPA provided for the settlement of disputes through arbitration. Under Section 86(1)(f) of the Act, 2003, Ravi Kiran was entitled to seek adjudication of the dispute through the process of arbitration, which it did not. It also did not avail the remedy of an appeal against the order of KERC before the APTEL as provided under Section 111 of the Act, 2003. Therefore, Ravi Kiran is not entitled to any relief at the hands of this Court. 76. Consequently, W.P.No.13043/2011 filed by Ravi Kiran does not merit any consideration. 77. However, since the GESCOM has reinstated the PPA dated 10.06.2002 by entering into the SPPA dated 14.11.2006, the GESCOM is bound to pay charges for supply of electricity by Ravi Kiran at PPA rates till the execution of the SPPA. Therefore, Ravi Kiran is only entitled to the limited relief of the PPA rates as agreed under the PPA dated 10.06.2002 till the SPPA dated 14.11.2006 was entered into. - 144 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS Findings in W.P.No.26709/2012 78. In view of the findings recorded by this Court in W.P.No.81808/2011, Ravi Kiran is entitled for refund of Rs.1,39,06,254/- along with interest at the rate of SBI prime lending rate plus 2% per annum from the date of recovery till the date of payment. 79. Hence, the following ORDER (i) W.P.No.81808/2011 is allowed. Consequently, the Official Memorandum bearing No.GESCOM/FA/DCA(F)/AO/AAO/2010-11/44729 dated 31.03.2011 issued by GESCOM is quashed. The GESCOM is directed to refund a sum of Rs.1,42,51,499/- along with interest at SBI prime lending rate plus 2% per annum from the date of impugned Official Memorandum dated 31.03.2011 till the date of payment. This shall be complied within a period of three months from the date of receipt of a certified copy of this Order. - 145 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (ii) W.P.No.80966/2012 is dismissed. However, if Koganti has generated and supplied electricity between the date of PPA and SPPA, GESCOM shall pay charges at the rates agreed under the PPA till the date of execution of SPPA, along with interest on the unpaid amount at SBI prime lending rates plus 2% from the date it fell due till the date of payment. (iii) W.P.No.81089/2012 is dismissed. (iv) W.P.No.85561/2012 is allowed. The impugned Order bearing No.GESCOM/CE(CP)/EE(RA)/2012- 13/F-20574-80 dated 29.08.2012 passed by GESCOM deducting Rs.1,40,80,606/- from the bills payable to Koganti during January, 2012 to April, 2012 is quashed. Consequently, GESCOM is directed to refund a sum of Rs.1,40,80,606/- along with interest at 18% per annum from 29.08.2012 till the date of payment. This shall be complied within a period of three months from the date of receipt of a certified copy of this Order. - 146 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (v) W.P.No.205114/2016 is allowed. The demand notice bearing No.SEE(C & RP)/DCA (EBC)/AO(EBC)/F-76B/2016-17/EYS-1(57 NOTICE) dated 14.09.2016 issued by respondent No.4- MESCOM and demand notice bearing No.GM(PP)/DGM(F&C)/BESCOM/BC-39/6180 dated 07.09.2016 issued by respondent No.3-BESCOM is quashed. If the amount demanded under the impugned demand notices is recovered from Koganti, the same shall be refunded to Koganti with interest at 18% per annum from the date of demand notices till the date of payment, within one month from the date of receipt of a certified copy of this Order. (vi) W.P.No.13043/2011 is allowed in part. The challenge to the unilateral termination of PPA dated 10.06.2002 and the consequent SPPA dated 14.11.2006 as well as the order passed by KERC dated 25.11.2009 in O.P.No.14/2008 and 06.01.2011 in R.P.No.5/2010, is rejected. - 147 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS However, in respect of supplies made by Ravi Kiran till the date of execution of SPPA dated 14.11.2006, Ravi Kiran shall be entitled to the rates agreed under the PPA dated 10.06.2002 along with interest at SBI prime lending rate plus 2% per annum. This shall be complied within a period of three months from the date of receipt of a certified copy of this Order. (vii) W.P.No.26709/2012 is also allowed. The impugned Official Memorandum bearing No.GESCOM/FA/DCA(F)/AO/AAO/2010-11/44724 dated 31.03.2011 issued by GESCOM is quashed. The GESCOM is directed to refund a sum of Rs.1,39,06,254/- to Ravi Kiran along with interest at SBI prime lending rate plus 2% per annum from the date of impugned Official Memorandum dated 31.03.2011 till the date of payment. This shall be complied within a period of three months from the date of receipt of a certified copy of this Order. - 148 - NC: 2025:KHC-K:2582 WP No. 205114 of 2016 C/W WP No. 13043 of 2011 WP No. 81808 of 2011 AND 4 OTHERS (viii) In view of disposal of the petitions, pending I.As., if any, do not survive for consideration and the same stand disposed off. Sd/- (R.NATARAJ) JUDGE PMR List No.: 19 Sl No.: 1