GRAPHITE INDIA LIMITED Vs. KARNATAKA ELECTRICITY REGULATORY COMMISSION

JUDGEMENT

(1.) These writ petitions are filed for writ in the nature of certiorari to quash the impugned order dated 09.01.2018 passed by the 1st respondent in OP Nos.90/2016, 100/2016, 104/2016, 47/2017 and 130/2017 as per Annexure-A and writ of mandamus directing the 5th respondent-State of Karnataka to issue a direction under Section 108 of the Electricity Act, 2003 to provide the Banking arrangement to the petitioners on a Water Year basis with a grace period of one month as mandated under Clause 6 of the respective agreements.

(2.) It is the case of the petitioners that, State of Karnataka sanctioned proposal to the petitioner- Graphite India Limited for installation of a renewable energy based Mini Hydro Electric Project of 15 MW at Generation. The capacity of the project was increased to 18 MW. The petitioner-Bhuruka Gases was accorded proposal of State of Karnataka for installation of a renewable energy based Wind Energy Electric Power generating station of 18.4 MW at Masbinal Village, Basavana Bagewadi Taluk, Vijayapura. The petitioners have entered into the agreements, with the State Government on different dates and as per the clause 6 of the respective agreements accorded approval to the petitioners for wheeling and Banking of Electricity generated by them. In terms of the agreement, the Transmission line from power house to the Karnataka Electricity Board shall be got constructed by Karnataka Electricity Board at Company's cost and the Transmission line would be maintained by Karnataka Electricity Board. The Company agrees to pay wheeling and banking charges to Karnataka Electricity Board at 10% Energy Generation and as per the guidelines already laid, a separate agreement should be made by the Company with Karnataka Electricity Board in that regard. It is further case of the petitioners that in terms of the agreements entered into between the petitioners and the then KEB executed a Wheeling and Banking Agreement on 20.08.1996 and subsequently after period of ten years, Wheeling and Banking Agreement was renewed and signed as per 1st respondent KERC's directions in OP No.22 of 2009 on 14.09.2010 between and petitioners and Chamundeshwari Electricity Supply Corporation Limited (CESC) and Karnataka Power Transmission Corporation Limited (KPTCL).

(3.) It is the further case of the petitioners that the energy generated at the plant shall be banked on Water year basis i.e., June to May of the Year as per KERC's order dated 01.07.2010 in case No.OP22/2009 and will be permitted to be carried forward from month to month within the same Water year. Banked energy will become zero at the end of the Water year. In other words, the Banking facility is provided on an annual basis and Banking charges are payable as specified in the 1st respondent's orders dated 09.06.2005 and 11.07.2008. It is further contended that the Wheeling and Banking Agreement executed by the petitioners with the Utilities is on 14.09.2010, as aforesaid and as per the said agreement, the tariff structure/charges payable by the petitioner to the Utilities is governed by the orders dated 09.06.2005 and 11.07.2008 produced at Annexures-E and F, respectively. It is further contended that as per Article 13.6 of the Wheeling and Banking Agreement, the Wheeling and Banking Agreement shall not be amended, changed, altered or modified except by a written instrument duly executed by the authorized representative of both the parties. However, the 1st respondent shall be entitled to modify/alter the conditions of the contract at the instance of either of the parties after giving an opportunity of hearing to the parties.