Smt. L. Nagarathna W/O D.A Chavan vs Karnataka Electricity Regulatory Commission & Ors on 9 January 2026

J U D G M E N T

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

1. The Appellant is aggrieved by the order dated 21st September, 2017 passed by 1st Respondent – Karnataka Electricity Regulatory Commission (hereinafter referred to as “the Commission”) passed in Petition bearing O.P. No. 94 of 2016 thereby dismissing the Appellant’s petition. As a consequence, the prayer of the Appellant to declare the communication dated 16th November, 2016 issued by 2nd Respondent – Bangalore Electricity Supply Company Ltd. (in short BESCOM), whereby the Appellant was informed that PPA dated 11th December, 2015 executed by her with BESCOM has lapsed and is non- enforceable or non-exist, stood rejected.

2. The facts and circumstances of the case leading to filing of the instant appeal lie within a narrow compass and are extracted herein below.

3. The Appellant was desirous of installing a roof top solar plants with net metering arrangement of 1000 KW capacity on roof top of the premises situated at Doddabathi village Davanagere District, Bangalore, Karnataka. She had submitted all the requisite documents for the said purpose to the 2nd Respondent - BESCOM and had also entered into a

Power Purchase Agreement (PPA) dated 11th December, 2015 with the said respondent to sell electricity generated from the solar power project to it. As per Regulation 11(3) of KERC, (Implementation of Solar Roof Top Photovoltaic Power Plants) Regulations, 2016, the Distribution Licensee was obliged to seek approval of the State Commission where the installed capacity of the solar power project was 500 KW and above. Since in the instant case, the Appellant intended to set up 1000 KW capacity solar power project, the PPA dated 11th December, 2015 was submitted to the Commission for approval.

4. The Commission accorded approval to the PPA and the approval was conveyed to the BESCOM vide letter dated 1st January, 2016, copy of which was sent to the Appellant also. The approval was subject to furnishing the proof of the existing roof of 9700 sq.mt. to the Commission within 15 days. The Commission’s approval was forwarded by Respondent No. 3, General Manager, DSM Corporate office, BESCOM to Respondent No. 5, Executive Engineer, O&M Division, BESCOM vide letter dated 16th January, 2016 while marking its copy to the Appellant also.

5. It seems that neither Appellant nor anybody on behalf of the 2nd Respondent submitted proof of existing roof admeasuring 9700 meters

available with the Appellant for setting up of the solar power project to the Commission in terms of the condition put forth by the Commission while approving the PPA.

6. Subsequently, the Commission, vide letter dated 2nd November, 2016 informed the BESCOM that approval accorded by the Commission to several PPAs entered into between the BESCOM and applicants for SRTPV projects including the Appellant herein has lapsed on account of failure to furnish the proof of availability of existing roof top within the stipulated period.

7. Accordingly, the BESCOM addressed communication dated 16th November, 2016 to the Appellant informing her that the approval accorded by the Commission to the PPA dated 11th December, 2015 has lapsed and the PPA is non-enforceable and non-existent.

8. The said communication issued to the Appellant by BESCOM was assailed by her before the Commission by way of O.P. No. 94 of 2016 with the following prayers :-

(a) To declare that the letter dated 16.11.2016 issued by the Respondent No. 3 to the petitioner is null and void;

(b) To give statutory approval to the PPA dated 11.12.2015 executed between Petitioner and Respondent No. 4;

(c) To appoint a Commissioner to investigate the monetary loss incurred by the Petitioner and award the amount to the Petitioner; (d) To extend the time for commissioning the Plant by 18 months from the date of final disposal of this Petition.

9. The Commission formulated following three issues for its consideration :-

Whether the PPA dated 11.12.2015 has lapsed due to non-production of proof of roof area to the Commission within the time stipulated or within a reasonable time thereafter?

Whether the Petitioner is entitled to any of the relief’s claimed?

What Order?

10. All the three issues have been decided by the Commission against the Appellant in the impugned order and hence the Appellant is before us in this appeal.

11. We have heard Learned Counsel for the Appellant as well as Learned Counsel for Respondent Nos. 4 to 7. No other respondents contested the appeal. We have also gone through the impugned order and the written submissions filed by the Learned Counsels.

12. The Appellant is primarily aggrieved by the impugned order in so far as it holds that the PPA dated 11th December, 2015 executed by her with 2nd Respondent – BESCOM has lapsed and has become unenforceable. This is evident from the prayers made by her in the memo of appeal namely (a) for setting aside of the impugned order and (b) revival the said PPA.

13. Learned Counsel for the Appellant vehemently argued that the Appellant was never directly communicated or served with the letter dated 1st January, 2016 issued by the Commission for approval of the PPA. He submitted that the said letter was addressed by the Commission to the Managing Director of BESCOM with a carbon copy marked to the Appellant and, therefore, the Appellant was denied a direct opportunity to comply with the condition prescribed by the Commission for approval of the PPA. He further submitted that the said approval letter dated 1st January, 2016 was forwarded 3rd Respondent to 5th Respondent only on 16th January, 2016 i.e. after the expiry of 15 days without issuing any

instructions to the Appellant, therefore, the delay in complying with the condition occasioned only due to the internal hierarchy in the 2nd Respondent Company. It is his submission that the Appellant has been unjustly held accountable for internal departmental mis-communications between the officers of the 2nd Respondent- BESCOM despite there being no direct communication to her to comply with the conditions set out by the Commission while approving the PPA. He would argue that non-submission of requisite documents to the Commission within 15 days of approval letter dated 1st January, 2016 was solely on account of the failure on the part of the officials of BESCOM for which the Appellant cannot be held responsible. He also submitted that no prior notice was issued to the Appellant before informing her that the PPA dated 11th December, 2016 had lapsed. Learned Counsel cited the judgement of the Hon’ble Supreme Court in Venkatraman Krishnamurthy & Anr. Vs. Lodha Crown Buildmart Pvt. Ltd. in Civil Appeal No. 971 of 2023 decided on 22nd February, 2024 to canvass that the contract is to be interpreted while quoting the actual meaning to the words contained in it and it is not permissible for court to amend or re-write a new contract, Union of India and Ors. Vs. Hindustan Development Corpn. and Ors.(1993) 3 SCC 499 to canvass that the Court has power to lift the veil and see whether the

decision is violative of principle of natural justice, arbitrary of unreasonable; Navjyoti Coo-Group Housing Society and Ors. Vs. Union of India (UOI) and Ors., (1992) 4 SCC 477, to canvass that the doctrine of legitimate expectation imposes a duty on public authority to act fairly by considering all relevant factors before taking a decision.

14. Per contra, it is argued on behalf of the Respondents that when the PPA itself did not come into effect on account of failure on the part of the Appellant to fulfill the conditions, the question of taking shelter under the terms of the PPA does not arise. It is submitted that the copy of letter dated 1st January, 2016 issued by the Commission was admittedly marked to the Appellant and, therefore, Appellant alone is responsible for non-furnishing of the proof of availability of the roof area to the Commission for which Respondents cannot be held responsible. It is pointed out that concededly, the Assistant Executive Engineer, O&M, Rural Sub-Division, BESCOM has found during the inspection that the Appellant’s warehouse had approximately 93607 sq.ft. of roof top available to be utilized for installing solar roof top PV cells, which translates to 8696 sq.mts. only with a deficit of 1004 sq.mts. Therefore, according to the Learned Counsel, the Appellant never had requisite roof top space available with her for installation of the SRTPV plant. He

further argued that the Commission, while passing the impugned order, has correctly held that in the absence of approved PPA, Respondent is not required to follow the procedure specified in the PPA for its termination as the PPA had ceased to exist. He would submit that the Commission had correctly noted that since the Commission’s approval granted to the PPA had lapsed and was no longer valid due to the non- compliance of the conditions imposed, the PPA did not exist and therefore, the letter dated 16th November, 2016 issued by BESCOM is valid in the eyes of law.

15. We have considered the rival submissions made by the Learned Counsels and have perused the entire record. Our Analysis

16. It is true that the communication dated 1st January, 2016 vide which conditional approval was accorded by the Commission to the PPA dated 11th December, 2015, was addressed to the Managing Director of 2nd Respondent and not to the Appellant. However, it is also equally true that the copy of the said communication has been marked to the Appellant. It is not the case of the Appellant that she never received the copy of the said communication dated 1st January, 2016 of the Commission. Therefore, the Appellant cannot claim ignorance about the condition

specified by the Commission in the approval letter dated 1st January, 2016 i.e. furnishing of the proof of existing roof top measuring 9700 sq.mts. within 15 days. Admittedly, the Appellant neither submitted such proof to the Commission herself nor called upon the 2nd Respondent to do the same.

17. It is the case of the Appellant that she had submitted the requisite documents in this regard to the 2nd Respondent even before the issue of letter dated 1st January, 2016 by the Commission. We do not find any force in the said contention of the Appellant. The details of the documents i.e. proof of the existence of available roof top space admeasuring 9700 sq.mts., said to have been submitted by the Appellant to the 2nd Respondent, have nowhere been given either in the proceedings before the Commission or in the memo of appeal filed before this Tribunal. Even if we take the said contention of the Appellant on its face value that she had already submitted the requisite documents to the 2nd Respondent, that did not absolve her from complying with the condition specified by the Commission while approving the PPA. She knew that the approval accorded to the PPA was conditional and, therefore, ought to have either complied with the condition herself or called upon the 2nd Respondent to comply with the condition. She did not do either. Therefore, it does not

lie in her mouth to contend that she has been denied of any opportunity to comply with the condition specified by the Commission while approving the PPA or that the delay in complying with the condition as happened due to the fault on the part of the officials of the 2nd Respondent.

18. It was the Appellant who intended to install a roof top solar plant and had entered into a PPA dated 11th December, 2015 with the 2nd Respondent to sell electricity generated in the solar power plant to it. Therefore, the Appellant ought to have been vigilant and should have complied with the condition specified by the Commission in the letter dated 1st January, 2016 at the earliest not withstanding her contention that she has submitted requisite documents in this regard already to the 2nd Respondent. On account of failure on her part to do so, the Commission was correct in informing the 2nd Respondent vide letter dated 2nd November, 2016 that the approval granted to the said PPA dated 11th December, 2015 has lapsed. Accordingly, we do not find any error or infirmity in the communication dated 16th November, 2016 addressed by the 2nd Respondent to the Appellant on the basis of Commission’s letter dated 2nd November, 2016 informing her that the PPA has lapsed and is unenforceable.

19. The Appellant has, in the written submissions filed on her behalf, referred to some letter addressed by Assistant Executive Engineer, BESCOM to Executive Engineer, BESCOM wherein it has been stated that the Appellant’s warehouse has approximately 93607 sq.ft. of roof top available for installation of proposed SRTPV system, which translates to 8696 sq.mt. only with a deficit of 1004 sq.mts., as specified by the Commission in approval letter dated 1st January, 2016. It is, thus, admitted by the Appellant herself that she did not have requisite roof top space available with her for installation of the proposed SRTPV system. This appears to be the reason for non-submission of requisite documents in this regard to the Commission in pursuance to Commission’s approval letter dated 1st January, 2016.

20. It has been argued on behalf of the Appellant that no prior notice, as required under the provisions of the PPA, was served upon her before informing her that PPA dated 11th December, 2015 has lapsed. The argument has been noted only to be rejected. Since the approval accorded by the Commission to the PPA was conditional and the condition was not complied with either by the Appellant or by the 2nd Respondent (the signatories to the PPA), the PPA did not come into effect at all and, therefore, the Appellant cannot take shelter under its

terms. In the absence of the approved PPA, the Respondents were not required to seek its termination by issuance of default notice under the provisions of the PPA. Since the condition specified by the Commission while approving the PPA has remained to be complied with either by the Appellant or by the 2nd Respondent, the approval lapsed and the PPA became unenforceable. Therefore, the 2nd Respondent was not obligated to follow the procedure specified in the PPA for its termination as the PPA ceased to exist on account of lapse of the approval accorded to it by the Commission. Reliance placed on behalf of the Appellant in this regard on the judgement of the Apex Court in Venkataraman Krishnamurthy case (supra) is wholly misplaced for the reason that neither has the Commission nor is this Tribunal amending or re-writing the contract between the Appellant and the 2nd Respondent. The Commission has held that PPA ceased to exist on account of failure on the part of the Appellant or the 2nd Respondent to fulfill the conditions specified by the Commission while approving the same, which seems to be perfectly sound and legally tenable. Therefore, no agreement subsisted between the Appellant and 2nd Respondent at all and the question of amending or re-writing any such agreement did not arise at all.

21. The judgements of the Hon’ble Supreme Court in Hindustan Development Corpn. Case (Supra) and Navjyoti Coo-Group Housing case (supra) cited by the Learned Counsel for the Appellant are also not relevant to the facts and circumstances of the instant case. We may note at the cost of repetition that the Appellant had knowledge of the conditional approval accorded by the Commission to the PPA and, therefore, it was her responsibility to either fulfill the condition herself or call upon the 2nd Respondent to fulfill the same. Since she failed to do either of the two, her contention of legitimate expectation is not tenable.

Conclusion

22. In view of the above discussion, we do not find any error or infirmity in the impugned order of the Commission. The appeal is devoid of any merit and is hereby dismissed.

Pronounced in the open court on this 9th day of January, 2026.

(Virender Bhat)

(Seema Gupta)

Judicial Member

Technical Member (Electricity)

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REPORTABLE / NON REPORTABLE

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