JSW ENERGY LIMITED Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The petitioner, which owns and operates an Imported Coal Based Power Plant [ICB Power Plant] in the State of Karnataka, has impugned the State Government's order dtd. 16/10/2023 issued in exercise of the jurisdiction under Sec. 11 of the Electricity Act, 2003 [for short, 'the Electricity Act'] and the second respondent's Communication dtd. 17/10/2023. The State Government by the first order has directed 'All the generators in the State of Karnataka' to operate and maintain the concerned generating stations to maximum exportable capacity and supply all the electricity generated to the State Grid subject to certain conditions, and one of the conditions stipulated is that the ESCOMs shall pay at Rs.4.86 per unit provisionally subject to the proceedings before the KERC. Consequentially, the second respondent by the impugned Communication dtd. 17/10/2023 has withdrawn all the NOCs/consents.

(2.) The petitioner contends that the impugned order dtd. 16/10/2023 is in the teeth of the Central Government's order dtd. 20/2/2023 also issued in exercise of the jurisdiction under Sec. 11 of the Electricity Act. The Central Government has issued this order dtd. 20/2/2023(It is undisputed that this order which had to prevail for a certain period is now extended to be in force until 30/4/2024) stipulating, amongst others, that all ICB Power Plants shall at the first instance supply power to the Power Purchase Agreement [PPA] holders and any surplus power left thereafter, or any power for which there is no PPA, shall be sold through the Power Exchanges, and if a ICB Power Plant has PPA with multiple DISCOMs and if one of the DISCOM does not schedule any quantity of power according to its PPA, the power shall be offered to other PPA holders and remaining quantity thereafter shall again be sold through Power Exchanges. The petitioner has sought for stay of the operation of the impugned Order dtd. 16/10/2023 and the Communication dtd. 17/10/2023.

(3.) Sri Mukul Rohatgi, Sri K. G. Raghavan and Sri.Dhyan Chinnappa, the learned Senior Counsels for the petitioners, and they, in support of the petitioner's request for interim prayer for stay of the operation of the impugned Order dtd. 16/10/2023 and the Communication dtd. 17/10/2023, submit that the petitioner is engaged in interstate sale of electricity and therefore is bound by the Central Government's order dtd. 20/2/2023 issued under Sec. 11 of the Electricity Act, and the State Government, which cannot assert any dominion over interstate sale of electricity and whose dominion is limited to intrastate supply of electricity, has issued its order dtd. 16/10/2023 despite the Central Government's order dtd. 20/2/2023. As such, the impugned Order dtd. 16/10/2023 is not only without jurisdiction but also unreasonable.