470 MP 2019

CENTRAL ELECTRICITY REGULATORY COMMISSION
NEW DELHI
Petition No. 470/MP/2019
Coram:
Shri I.S. Jha, Member
Shri Arun Goyal, Member
Shri P.K. Singh, Member
Date of Order: 23rd June, 2023
In the Matter of:
Petition seeking extension of Scheduled Commercial Operation Date on account of

Force Majeure events and consequential reliefs arising therefrom under Section
79(1)(c) and Section 79(1)(f) of the Electricity Act, 2003, Articles 4, 11 and 16 and
other relevant clauses of the Transmission Service Agreement dated 22.09.2015
executed between the Petitioner and the Long-Term Transmission Customers read
with Regulation 111 of the Central Electricity Regulatory Commission (Conduct of
Business) Regulations, 1999.
And
In the matter of:
Alipurduar Transmission Limited,

101, Part-III, G.I.D.C Estate,
Sector – 28, Gandhinagar - 382028
Gujarat - India ….…Petitioner
VERSUS
1. South Bihar Power Distribution Company Limited,

Second Floor, Vidyut Bhawan,
Bailey Road, Patna- 800001
2. West Bengal State Electricity Distribution Company Limited,

Link Road, Hooghly, Near IDBI Bank,
Arambagh, West Bengal- 712601
3. Manipur State Power Distribution Company Limited,

NH 150, Paona Bazar, Imphal, Manipur- 795004
4. Department of Power, Government of Nagaland,

Electricity House, A.G. Colony,
Kohima, Nagaland- 797001
5. Assam Electricity Grid Corporation Limited,
……………………………………………………………………………………………………………
Order in Petition No. 470/MP/2019 1
Bijulee Bhawan (First Floor) Paltan Bazar,
Guwahati- 781001
6. North Bihar Power Distribution Company Limited,

Third Floor, Vidyut Bhawan,
Bailey Road, Patna- 800001
7. GRIDCO Limited,
Janpath, Bhubaneswar- 751022
8. Energy and Power Department, Govt. of Sikkim,

Diesel Power House, Arithang,
Gangtok, Sikkim-737101
9. Jharkhand Bijli Vitran Nigam Limited,

Hazaribag Rd., Kokar Industrial Area, Kokar,
Ranchi, Jharkhand – 834001
10. Power Grid Corporation of India Limited,

Saudamini, Plot No. 2, Sector 29,
Near IFCO Chowk,
Gurgaon (Haryana)- 122001
11. Central Transmission Utility of India Limited,

Saudamini, Plot No. 2, Sector 29,
Near IFCO Chowk,
Gurgaon (Haryana)-122001
12. REC Transmission Projects Company Limited,

Core – 4, Scope Complex,
7, Lodhi Road,
New Delhi-110003 …. Respondents
Parties present:
Ms. Poonam Verma Sengupta, Advocate, ATL
Ms. Gayatri Aryan, Advocate, ATL
Ms. Priyanshi Bhatnagar, Advocate, ATL
Shri. Anant, ATL
Shri. Yogesh Dalal, ATL
Shri. Rahul Chouhan, Advocate, Bihar Discoms
Shri. Shashwat Kumar, Advocate, Bihar Discoms
Shri. Amitanshu Saxena, Advocate, Bihar Discoms
Ms. Swapna Sesahdri, Advocate, PGCIL
Ms. Suparna Srivastava, Advocate, CTUIL
Ms. Astha Jain, Advocate, CTUIL
Shri. V.C. Sekhar, PGCIL
Shri. Prashant Kumar, PGCIL
Shri. Swapnil Verma, CTUIL
Ms. Kavya Bhardwaj, CTUIL
……………………………………………………………………………………………………………
ORDER
The present Petition has been filed by the Petitioner (ATL), seeking extension
of Scheduled Commercial Date of Operation (“SCOD”) i.e. 6.3.2019, on account of
Force Majeure events and consequential reliefs arising therefrom. The Petitioner has
made the following prayers:
(a) Admit the present Petition;
(b) Hold and declare that the events pleaded in the Petition qualify as force majeure events
which has obstructed, delayed and adversely affected the completion of the Transmission
Project, for which Alipurduar Transmission Limited is entitled to the extension of SCOD as
claimed for in the Petition until the adverse impact of the force majeure events has ceased
to impede the work and the completion of the Transmission Project;
(c) Hold and declare that Alipurduar Transmission Limited is exempted from any financial
liabilities due to delay in achieving SCOD due to force majeure;
(d) Accept plea of Alipurduar Transmission Limited to permit it to file a separate petition to
seek compensation on account of time and cost-overrun, prolongation costs, opportunity
costs etc., as claimed for in the Petition; and
(e) Pass such further or other Orders as this the Commission may deem just and proper
in the facts and circumstances of the case.”
2. The Petitioner is a fully owned subsidiary of Kalpatru Power Transmission
Limited (KPTL), which was selected as a successful bidder through the tariff based
competitive bidding under Section 63 of the Act to establish the Transmission system
Strengthening in Indian transmission system for transfer of Power from new HEPs in
Bhutan transmission system on Build, Own, Operate and Maintain (BOOM) basis
comprising the following elements:
Completion
S. No. Name of the Transmission Element
target
Alipurduar (POWERGRID)-Siliguri (POWERGRID)
1. 400 kV D/C line (2nd) with quad moose conductor
……………………………………………………………………………………………………………
Completion
S. No. Name of the Transmission Element
target
Kishanganj (POWERGRID)-Darbhanga (DMTCL)
400 kV D/C line with quad moose conductor
Sub-station Extn: 38 months

- 2 nos 400 kV line bays at Darbhanga for
2.
termination of Kishanganj-Dharbhanga 400
kV D/C (quad) line
- 80 MVAr switchable line reactors (with 400-

ohm NGR) in each circuit
3. The Petitioner was incorporated as a Special Purpose Vehicle (‘SPV’) by Bid Process
Coordinator (in short, ‘BPC’), namely, REC Transmission Projects Company Limited (in
short (‘RECTPCL’) for the purpose of developing and implementing the Project under the Tariff
Based Competitive Bidding route. PGCIL participated in the competitive bidding process
conducted RECTPCL and on emerging as the successful bidder, Letter of Intent (LOI) was
issued by RECTPCL to KPTL on 29.10.2015. In accordance with the bidding documents,
KPTL acquired 100% of the shareholding in the Petitioner Company by executing a Share
Purchase Agreement with RECTPCL on 6.1.2016. KPTL also furnished the Contract
Performance Guarantee of Rs. 40.50 crore on 4.1.2016 and accordingly, the TSA dated
6.1.2016 entered into between the Petitioner and the LTTCs became effective from 6.1.2016.
The Commission in its order dated 21.3.2016 in Petition No.6/TL/2016 granted transmission
license to the Petitioner for inter-State transmission of electricity and vide order dated
22.3.2016 in Petition No.4/ADP/2016 adopted the transmission charges of the Petitioner.
Submissions by the Petitioner
4. The Petitioner has submitted that Element-2 of the Project achieved
commercial operation on 14.3.2019. However, Element-1 of the project has achieved
commercial operation 20.1.2020 due to the following force majeure events:
(a) Delay of 1078 days due to Severe Right of Way (“RoW”) issues faced by
the Petitioner, namely (i) stiff resistance from local land owners during
……………………………………………………………………………………………………………
construction works, (ii) dispute with respect to compensation payable to the land
owners, (iii) dispute with respect to multiple land -owners claiming compensation
for the same land, (iv) manhandling of ATL personnel, (v) court proceedings and
stay/interim injunctions granted therein (vi) Pendency of Applications made by
ATL under Section 16(1) of Telegraph Act, 1885, and (vii) lack of appropriate
local administrative support, etc.
(b) Delay of 1001 days in obtaining statutory clearances with respect to

power line crossing approvals and tree felling approvals.
(c) Delay of 60 days due to heavy floods in 7 districts of West Bengal and
12 districts of Bihar between 13.8.2017 and 12.10.2017 on account of which
transmission lines were water-logged and non-accessible.
5. The Petitioner has submitted that due to above force majeure events, the
Petitioner was not able to complete the Element 1 of the Project within stipulated time
and accordingly is seeking the extension of the SCOD in terms of Article 4.4.2 of the
TSA.
6. The matter was heard on 30.6.2020 and notices were issued to the
Respondents to file their reply. Reply to the Petition has been filed by the Respondents
No. 1 and 6 (Bihar Discoms) and the Petitioner has filed rejoinder thereof.
7. Vide Record of Proceedings for the hearing dated 30.6.2020, the Petitioner was
directed to submit the information regarding (a) details of commissioning, COD of
entire Project, RLDC certificate which may be linked with the prayers keeping in view
of the actual COD, and (b) Project execution plant, time plan as per Article 3.1.3 (c)
of the TSA dated 22.9.2015 and PERT/CPM/Gantt Chart of the project.
8. The Petitioner vide its affidavit dated 20.7.2020, has submitted the information
called for. With regard to (a) above, the Petitioner has submitted that the Petitioner
……………………………………………………………………………………………………………
vide its Affidavit dated 26.6.2020 has already placed on record Trial Run Completion
Certificate issued by POSOCO for the Element 1 and Element 2 dated 7.2.2020 and
5.4.2019 respectively. The Petitioner has also placed on record the documents
detailing the commissioning of both Elements 1 and 2 of the Project. With regard to
(b) above, the Petitioner has submitted that the Petitioner has placed on record the
copy of the execution plan, time plan as per Article 3.1.3(c) of the TSA dated 22.9.2015
which includes the updated PERT/CPM/Gantt chart of the Project.
IA No. 69/IA/2020
9. The Petitioner filed an application bearing I.A. No. 69/2020 seeking directions
to the Respondent, SBPDCL and other LTTCs ought not to take any coercive action
against the Petitioner including invocation of any CPGs until the present Petition No.
470/MP/2019 is finally decided by the Commission.
Reply of Respondent Nos. 1 and 6
10. The Respondent, Bihar Discoms in their joint reply dated 3.6.2021, has
submitted as under:
(a) The Petitioner had issued a letter to the said Respondents titled
‘Milestone for – Transmission System Strengthening in India System for
transfer of power from new HEPs in Bhutan’ and vide the said letter it is to be
construed that as per the entry number 19 titled ‘Detailed Survey including route
alignment, profiling & tower spotting Detailed Soil Investigation’ the Petitioner
had concluded detailed route alignment, profiling and tower spotting as on
31.3.2016. Thus, the Petitioner was well aware of the route for laying
transmission lines and the hurdles, if any, which the Petitioner may face during
laying of lines/erecting of towers.
(b) As per Section 2 of the Request for Proposal dated 8.7.2015 (RfP), the
Petitioner was well aware of its obligation to familiarize with respect to the time
……………………………………………………………………………………………………………
frame required to obtain consents, clearances, before submission of its bid.
However, the Petitioner has delayed in applying for statutory clearances as well
as failed to give reasons for the said delays. Thus, the Petitioner has failed to
execute the project with adequate prudence and diligence, which in fact led to
the delay in project completion. These delays are controllable’ events and could
have been avoided, possibly, could have even led to early declaration of
commissioning of the project by the Petitioner.
(c) The Petitioner was required to provide all details as envisaged under
Article 11.3 of the TSA to establish that the Natural Force Majeure event i.e.,
rains and floods, has led to such exceptionally adverse weather conditions
which are in excess of the statistical measures for the last hundred (100) years.
However, in the present matter, the Petitioner has failed to produce any
evidence of exceptionally adverse weather conditions causing flood (for
example rain, etc.) at the respective locations of the project sites where erection
work was allegedly hampered.
(d) The certificates of completion of trial operation for the Projects issued by
ERLDC have been provided to the Respondent No. 1 by the Petitioner.
However, the said certificates are for completion of trial operations for 24 hours
instead of 72 hours. Therefore, the Petitioner has failed to comply with the
Article 6.2.1 of the TSA resulting in delay in achieving the COD of Element 1
and Element 2 of the Project.
(e) Appellate Tribunal for Electricity (APTEL) vide its judgment dated
25.01.2019 in the case of NTPC Limited vs. GRIDCO and Ors. has settled that
the declaration of the COD has to be as per the relevant regulations and not
otherwise. Therefore, as per the RfP, the Petitioner is obligated to make the
assets of the Transmission Project available on a commercial basis to LTTCs
as per the terms and conditions of the TSA.
(f) The Petitioner’s request for return of the Contract Performance

Guarantee (CPG) is not tenable. The Respondent No. 1, South Bihar Power
Distribution Company Limited vide its letter dated 24.8.2020 has challenged the
erroneous declaration of the COD of the Transmission System erected by the
……………………………………………………………………………………………………………
Petitioner and requested to pay Liquidated Damages (‘LD’) of Rs. 1694.55 lakh
as per the provisions of the TSA for delay in commissioning of the Transmission
System. Subsequently, the Petitioner filed an Interlocutory Application
numbered (IA) I.A. No. 69 of 2020 seeking interim reliefs against the demand
of LD by the Respondents and requested for return of the Contract Performance
Guarantee of Rs. 40.50 crore under apprehension of encashment of the same
by the Respondents. Subsequently, the Petitioner has approached the Hon`ble
High Court of Delhi seeking similar relief and vide order dated 4.9.2020 in
W.P.(C) 5998/2020, Hon`ble High Court of Delhi has kept the demand of LD
made by the Respondent No. 1 vide letter dated 24.8.2020, in abeyance till the
matter is next heard. Thus, unless and until the veracity of COD declared by
the Petitioner is examined by the Commission, the CPG should not be returned
to the Petitioner.
(g) Article 11 of the TSA does not provide for any relief towards cost and
time over-run. These costs are simply operational and commercial risks which
are to be absorbed by the bidder. As per Article 11.7 (b) of the TSA “Available
Relief for a Force Majeure Event, every party shall be entitled to claim relief for
a Force Majeure Event affecting its performance in relation to its obligations
under this Agreement.” The Petitioner is not entitled to claim any relief qua the
time and/or cost over-run, as the relief so granted has no nexus with any time
or cost over-run which the TSP may have faced due to occurrence of any
alleged Force Majeure event.
Rejoinder to the reply of Bihar Discoms
11. The Petitioner in its rejoinder dated 14.4.2022, has submitted as under:
(a) The Petitioner (ATL) had duly ascertained the route of the transmission
line before commencement of construction. However, the hurdles faced during
laying of transmission line could not have been ascertained by the Petitioner
until construction of the lines actually began. The ‘Detailed Survey including
route alignment, profiling & tower spotting Detailed Soil Investigation’ referred
to by the Respondents was only related to the construction aspect of the
……………………………………………………………………………………………………………
Transmission Project wherein the survey focused on suitability of the route for
carrying construction of the transmission project. The Petitioner could not have
possibly anticipated or controlled the RoW issues raised by the landowners due
to alleged inadequate compensation. In fact, some landowners had sought stay
by filing court cases regarding the grant of compensation in January 2019.
Thus, such actions by the landowners were beyond the reasonable control of
the Petitioner and could not have been anticipated.
(b) There was no delay in applying for statutory clearances on part of the
Petitioner. It was only towards the end of 2016 when the Petitioner achieved
financial closure and started with construction activities of the Transmission
Project. Thereafter, the Petitioner accordingly applied for the requisite statutory
clearances starting April 2017. The time taken by government authorities in
grant of statutory clearances for (i) power line crossings, and (ii) approval for
felling of trees and transit pass in non-forest areas, etc., was beyond
reasonable time. It is a settled law that any delay due to grant of statutory
approvals, which is beyond the reasonable control of the developer amounts to
Force Majeure events under the Agreement. The APTEL in its judgment dated
2.8.2021 in the matter Clearsky Solar Private Limited vs. KERC & Ors. in
Appeal No. 160 of 2020, has acknowledged that land acquisition approval is a
‘herculean task’ and hence, delay in grant in land approval was beyond the
control of the developer. Further, APTEL in its judgment dated 14.9.2020 in
Appeal No. 351 of 2018 in Chennamangathihalli Solar Power Project LLP and
Ors. vs. Bangalore Electricity Supply Company Ltd. & Ors. held that delay (of
7-8 months) in grant of approvals by government instrumentalities is a Force
Majeure event.
(c) The interpretation as to ‘floods’ being in excess of statistical measures

for the last hundred (100) years, is absurd and untenable. The Respondents
No. 1 & 6 cannot read into the Petitioner’s claim and suggest that ‘rain causing
floods’ was an extreme weather condition and therefore will have to pass the
muster of ‘excess of statistical measures for the last hundred (100) years.
(d) The phrase ‘or exceptionally adverse weather conditions which are in
excess of the statistical measures for the last hundred (100) years’ is separated
……………………………………………………………………………………………………………
by a ‘comma’ before ‘or’. It is an ‘Oxford Comma’, used between the
penultimate item in a list and ‘and/or’ to prevent ambiguity and confusion and
to supply the plain meaning. The same has been used by the Hon`ble Supreme
Court in interpreting number of cases viz. Mohd. Shabbir vs. State of
Maharashtra (1979) 1 SCC 568; M.K.Salpekar (Dr.) vs. Sunil Kumar
Shamsunder Chaudhari 1988 (4) SCC 21; and Sama Alana Abdulla v. State of
Gujarat (1996) 1 SCC 427.
(e) The declaration of commercial operation of the respective elements, has

been done in accordance with Article 6.1.21 of the TSA and the relevant
applicable regulations. The Petitioner has placed on record the copy of the trial
run completion certificates of both Element 1 and Element 2
(f) The ‘commercial operation’ of the Transmission Project is linked to 72

hours following the connection of the respective element. “Trial Run” is different
from ‘commercial operation’ where “Trial Run” has to be done in accordance
with the Regulation 6.3 A (5) of the Central Electricity Regulatory Commission
(Indian Electricity Grid Code) Regulations, 2010 (“IEGC”).
(g) As per Article 6.2.1 of the TSA, the commercial operation of both
Element 1 and Element 2 has been declared only 72 hours after energization.
The Element 2 was energized on 11.3.2019 at 21:41 hrs, trial run completed on
12.3.2019 at 21:41 Hrs and accordingly, the same was commissioned on
14.3.2019. Similarly, Element 1 was energized on 16.1.2020 at 16:38 hrs, trial
run for the same was completed on 17.1.2020 at 16:38 hrs and accordingly,
was commissioned on 20.1.2020. There are no separate commissioning
certificates issued after 72 hours of continuous energization of the respective
element. However, the payment of transmission charges by the LTTCs
commences after commissioning of the respective element. The
commissioning date of Element 1 and Element 2 has also been recognized by
PGCIL in its Petition No. 113/TT/2021 Thus, the Petitioner is not liable to
compensate LTTCs in the form of LD for any reason whatsoever.
(h) It is a settled position of law that a contracting party is entitled to cost

overrun/prolongation costs/ escalation costs on account of an extension of time
for the completion of work. In this regard, the Petitioner has placed its reliance
……………………………………………………………………………………………………………
on the judgments of the Hon`ble Supreme Court in the cases of Assam SEB v.
Buildworth (P) Ltd., [(2017) 8 SCC 146] and K.N. Sathyapalan v. State of
Kerala, [(2007) 13 SCC 43] alongwith the APTEL judgment dated 27.4.2011 in
Appeal No. 72 of 2010 in the matter of Maharashtra State Power Generation
Co. Ltd. v. MERC & Ors. and judgment dated 1.8.2017 in Appeal No. 35 of 2016
in the matter of GMR Kamalanga Energy Ltd. v. CERC & ORs.
Hearing Dated 21.4.2022
also directed to implead CTUIL and BPC and file revised memo of the parties. CTUIL
and BPC were also given liberty to file their reply including on the aspect of the SCOD
of the Petitioner’s Project, if any.
13. The Respondent, Power Grid Corporation of India Limited (PGCIL) in its reply
dated 12.7.2022, has submitted as under:
(a) Several issues have arisen in respect of the mismatch between the
assets of various transmission licensees. Although, the Commission has
approved the COD of assets vide its various orders, however, the TBCB
licensee who accepts the liability to pay, subsequently claims the reliefs on
Force Majeure and Change in Law under the respective TSA provisions by filing
their own substantive Petitions wherein they take a stand that since they are
affected by Force Majeure events, they are not liable to pay any charges to
PGCIL. The same has been done in the present matter at hand by the
Petitioner.
(b) With regard to Element 1, the transmission line, namely, the Alipurduar-
Siliguri 400 kV D/C line has achieved COD only on 17.1.2020 as against the
SCOD of 5.3.2019. However, both bays at the Siliguri sub-station and
Alipurduar substation were made ready by the said Respondent on 1.8.2019.
Further, PGCIL has filed Petition No. 113/TT/2021 for approval of tariff of these
bays wherein PGCIL has sought approval of COD under Regulation 5 (2)
……………………………………………………………………………………………………………
proviso of the Tariff Regulations, 2019 for its bays at both sub-stations as
associated TBCB line i.e. Alipurduar – Siliguri 400kV D/C line under the scope
of ATL was not ready on 1.8.2019.
(c) SCOD of the bays at Alipurduar & Siliguri was 5.3.2019 and PGCIL
made efforts to commission the bays by the SCOD. However, there were
severe Right of Way (‘RoW’) issues faced by PGCIL in the multi circuit portion
(400 kV Alipurduar – Jigmeling transmission line of PGCIL also being used by
the Petitioner in the execution of the Alipurduar – Siliguri line) and accordingly,
delay of 149 days in commissioning of both the bays was beyond the control of
PGCIL and detailed justification for delay has been submitted in Petition No.
113/TT/2021. Further, this delay of 149 days did not in any manner, affect the
line of the Petitioner which was already delayed.
(d) With regard to qua Element 2 of the Petitioner i.e. the 400 kV Kishanganj
– Darbhanga transmission line, PGCIL has filed tariff Petition No. 677/TT/2020
for approval of tariff for associated bays at Kishanganj substation along with 80
MVAR switchable line reactors wherein the Commission has categorically
made a finding that the DTPC and PLCC works at Kishanganj (PGCIL)
Substation were under the scope of the Petitioner and the same were
completed by the Petitioner only on 11.3.2019 and thereafter two days were
taken for charging of PGCIL’s bays. Thus, the deemed COD of 400 kV
Kishanganj-Darbhanga D/C line cannot be claimed as 6.3.2019 by the
Petitioner without completion of the DTPC and PLCC works under its scope
and may need to be shifted to 14.3.2019 i.e. date of actual commercial
operation of the line after completion of trial operation.
(e) With regard to contention of the Petitioner that one no 1x80 MVAR
switchable line reactor (SLR with 400 – ohm NGR) at Kishanganj GIS for Circuit
– II of Kishanganj – Darbhanga line was commissioned on 22.06.2020 and the
PGCIL`s scope was not completed, the bays that are the essential elements
which connect to the transmission line and non-availability of the 80MVAR
switchable line reactor at Kishanganj did not affect the completion or successful
operation of the 400 kV Kishanganj- Darbhanga line. The non-availability of the
reactor has not affected the operation/availability of the line from 11.3.2019
……………………………………………………………………………………………………………
onwards till the reactor is commissioned on 22.6.2019. Hence, there is no
question of Deemed COD in such cases.
(f) The Commission recently after considering similar submissions in

respect of the mismatch between the Respondent’s assets and the assets of
the TBCB licensee has passed a detailed order dated 26.4.2022 in Petition No.
60/TT/2017 and reiterated that if the assets are interlinked, the TBCB licensee
is still liable for the period of mismatch and same has to be paid by it even
though the SCOD of TBCB licensee was extended due to force majeure events.
Extension of SCOD and waiver of payment of LD charges as penalty is the only
relief that can be provided under the provisions of the TSA.
14. The Petitioner in its rejoinder dated 19.11.2022, to the reply of PGCIL has
submitted as under:
(a) The Petitioner suffered ‘Force Majeure Events’ while constructing

Element 1 for which the present Petition was filed, as the delay in completion
of Element 1 was caused by events beyond the Petitioner’s control. Thus, no
liability for mismatch can be imposed on the Petitioner before adjudicating the
Petitioner’s force majeure claims. The APTEL vide its judgment dated
14.9.2020 in Appeal No. 17 of 2019 in the case of NRSS XXXI (B) Transmission
Ltd. v. Central Electricity Regulatory Commission and Ors., has settled that a
TBCB licensee could not be charged for mismatch of commissioning of
transmission assets under its scope was condoned on account of force majeure
events and SCOD was revised. Hence, no claim of mismatch by PGCIL may
be decided in the present Petition which limits itself to extension of SCOD of
the transmission project of the Petitioner.
(b) As regards Element 2, the delay in commissioning of Element 2 was

beyond the control of the Petitioner. The Petitioner installed PLCC equipment
by SCOD i.e. 6.3.2019, however, testing and commissioning of PLCC was
pending due to pending jumpering works at PGCIL’s end. PGCIL completed the
jumpering works on the evening of 8.3.2019 after ATL requested for the same
via email sent on the same day at 12pm. As regards the DTPC, ATL requested
……………………………………………………………………………………………………………
PGCIL for support (permission to access Kishanganj Substation site) on the
morning of 8.3.2019 for completion of cable termination for DTPC. Once the
site access for Kishanganj substation was given on 9.3.2019, the end to end
test for PLCC and cable termination works for DTPC were completed on
10.3.2019 and the same was confirmed vide PGCIL’s email dated 11.3.2019.
Thus, ATL has carried out DTPC and PLCC works (the same not being within
the scope of ATL as per the TSA) gratuitously at ATL’s own cost and ATL
cannot be held liable for any delay in completing Element 2 as per the TSA.
The testing of DTPC and PLCC is a joint exercise of both sub-station owners
(for Darbhanga – ATL and for Kishanganj-PGCIL). Therefore, testing and
commissioning was carried out in coordination with PGCIL. The readiness of
Element 2 was also established by CEA charging permission dated 21.2.2019.
IA No. 46/IA/2020 dated 14.7.2022
15. During the pendency of the Petition, the Petitioner also moved IA No. 46/2022
seeking amendment of pleadings along with incorporation of the following prayers:
“(a) Hold and declare that Element 2 of the Transmission Project achieved deemed
commissioning with SCOD as per the TSA, as declared by Alipurdaur Transmission
Limited;
(b) Hold and declare that delay in achieving commercial operation of Element 2,
from SCOD i.e. 06.03.2019, till actual date of commercial operation i.e. 14.03.2019, is
condoned in view of submissions made in paragraphs 103A to 103S.”
16. With regard to IA, the Petitioner has submitted that PGCIL had filed Petition No.
677/TT/2020 raising erroneous contentions regarding scope of work of the Petitioner
as per the TSA. The Commission has passed an Order dated 5.5.2022 in the PGCIL’s
Petition No. 677/TT/2020. The Petitioner has submitted that the Petitioner was
constrained to file said IA to clarify factual position with regard to scope of work. The
amendment sought through IA does not prejudice the interest of the Respondent nor
change the basic structure of the pleadings. Therefore, the Commission decided to
……………………………………………………………………………………………………………
hear the case on merits. The contentions raised by the Petitioner and PGCIL on the
IA have been dealt with in succeeding paragraphs of this order.
17. Vide Record of Proceedings for the hearing dated 15.7.2022, the Respondents
were directed to file their reply on the Petition as well as on the IA.
18. PGCIL vide its objection dated 11.7.2022 has opposed the amendment of the
Petition and has submitted as under:
(a) By filing the amendment application, the Petitioner is seeking to

challenge the findings of the Commission rendered in Order dated 5.5.2022,
which is not permissible. The Petitioner is also countering the contentions
raised by PGCIL in Petition No. 677/TT/2020 and is using the amendment
application to re-argue its case in Petition No. 677/TT/2020. It cannot amend
the pleadings in the present matter to re-argue the issue of the communication
equipment including DTPC and PLCC not being ready for the Kishanganj-
Darbhanga 400kV D/C line on the proposed date of its commercial operation.
(b) There is a finality to the fact that the communication equipment including
the DTPC and PLCC were under the scope of ATL and not ready on 5.3.2019
(SCOD) or 8.3.2019 (Date of CEA energization certificate). There is also a
categorical finding that the DTPC and PLCC works were completed on
11.3.2019 only pursuant to which the line achieved COD. The entire effort of
the Petitioner by filing the said amendment application is to re-argue the stand
of ATL that the DTPC and PLCC were not in the scope of ATL.
(c) The basic principles to be taken into consideration while allowing or

rejecting the amendment of pleadings under Order 6 Rule 17 of the Code of
Civil Procedure 1908, as laid down by the Supreme Court in Revajeetu Builders
and Developers vs. Narayanaswamy and sons & Ors. (2009) 10 SCC 84 as
……………………………………………………………………………………………………………
(d) The amendment sought would prejudice PGCIL in the Order dated
505.2022 passed in Petition No. 677/TT/2020 with regard to the TSA and
Connection Agreement are sought to be changed/altered by seeking the
amendment.
Response to the objections filed by PGCIL
19. The Petitioner in its response dated 12.8.2022 to the objections raised by
PGCIL has submitted that Order 6 Rule 17 of Code of Civil Procedure (Amendment of
Pleadings) as well as Regulation 114 of CERC (Conduct of Business) Regulations,
1999 provides for a ‘General Power to Amend’. The Petitioner has further submitted
as under:
(a) Hon`ble Supreme Court in the matter of Pirgonda Hongonda Patil v.

Kalgonda Shigonda Patil AIR 1957 SC 363 has laid down that the amendments
are ought to be allowed if two conditions are satisfied viz. i) being necessary for
the purpose of determining the real questions in controversy between the
parties; and ii) not working injustice to the other side. The above judgment
further laid down that amendments should not be refused until it is made out
that the other party cannot be placed in the same position as if the pleading had
been originally correct, or that the amendment would cause the other party an
injury which could not be compensated in costs, and PGCIL does not fall in
either category. Thus, the amendment IA satisfies both the conditions.
(b) The Petitioner also brings to the notice of the Commission that the
controversy regarding commissioning of Element 2 arose only in the Tariff
Petition. The Petitioner accordingly made the required submissions in those
proceedings. However, it was held by the Commission that the question of time-
overrun for Element 2 was to be determined only in the present Petition.
(c ) The Petitioner has filed the amendment IA to bring such additional facts,
submissions and documents on record which have direct nexus and are
necessary for effective adjudication of the issues pending determination in the
present Petition, which must be read in light of settled law that courts are
……………………………………………………………………………………………………………
confined to the pleadings made by the parties and in case the Petitioner is not
permitted to amend the present petition, the Commission will not be able to
adjudicate holistically. Further, no injustice is being caused to PGCIL by way of
the present amendment as only grounds and submissions related to Element 2
are being sought to be brought on record and the premise of the Petition i.e.
extension of SCOD, is not altered.
(d) Any adjudication of merits of the matter is required to be done only at a

later stage. Hon`ble Supreme Court in its judgments in the cases of Sampath
Kumar vs. Ayyakannu & Anr. [(2002) 7 SCC 559] and Rajesh Kumar Aggarwal
& Ors. vs. K.K.Modi & Ors. [(2006) 4 SCC 385] has held that while considering
whether an application for amendment should or should not be allowed, the
court should not go into the correctness or falsity of the case in the amendment.
Thus, at the stage of allowing the prayer for amendment no finding on the merits
of the amendment should be recorded and the merits of the amendment sought
to be incorporated by way of amendment are not to be adjudged. Further, in
order to decide any issue related to DTPC and PLCC related to Element 2 in
the present Petition, the Petitioner’s submissions ought to be considered for the
same. Even while considering the question of time and cost overrun, the
Commission is ought to take into consideration all facts and circumstances
leading to such time and cost overrun.
(e) Through the IA, the Petitioner is only seeking to bring on record necessary
information about Element 2, which is required by the Commission for proper
adjudication.
Hearing dated 17.8.2022
20. During the course of hearing, learned counsel for the Petitioner requested the
Commission to direct PGCIL to file its reply on merits. Vide Record of Proceedings for
the hearing dated 17.8.2022, PGCIL was directed to file reply to the IA regarding
amendment to the Petition on merits. The Petitioner was directed to file the following
information (a) DOCO certificate/ deemed DOCO certificate issued by transmission

……………………………………………………………………………………………………………
licensee; (b) Legible copy of SLD/schematic diagram of the transmission scheme; (c)
Actual length of each lines of the Petitioner as implemented vis a vis length of line as
per BPC routes; (d) Details of route followed (provided by BPC route or any other
route) along with necessary proof, for each of the transmission line; (e) Legible copy
of map, separately for each line of the Petitioner, depicting the three alternate route(s)
as per BPC survey superimposing the route as followed by the Petitioner in respect of
all line; (f) the information regarding w.r.t. Force Majeure events for each assets.
21. The Petitioner vide its affidavit dated 5.9.2022, has filed the information as
under:
(i) With regard to (a) and (b) above, the Petitioner has placed on record the copy
of the DOCO certificate/deemed DCOO certificate issued by the transmission
licensee and legible copy of SLD/schematic diagram of the transmission scheme.
(ii) With regard to (c) above, the Petitioner has placed on record the copy of
Gazette Notification dated 19.10.2016 and copy of approved line schedule.
(iii) With regard to (d) above, the Petitioner has placed on record the copy of the
Survey Report submitted by BPC i.e. REC with the RfP.
(iv) With regard to (e) above, the Petitioner has placed on record the legible copy
of map, separately for each line of the Petitioner, depicting three alternate route(s)
as per BPC survey superimposing the route as followed by the Petitioner in respect
of all line.
(v) With regard to (f) above, the Petitioner has placed on record information w.r.t.
to Force Majeure events in relation to each Asset by way of three tabular
summaries, wherein, (i) Table 1 - reflects the period of time planned for Foundation,
Erection and Stringing of Element 1 and actual time taken due to delay caused by
Force Majeure events; (ii) Table 2 - demonstrates details of various Force Majeure
events; and (iii) Table 3 - depicts details related to Element 2 of the Petitioner’s
Project.
……………………………………………………………………………………………………………
Reply of PGCIL on merits of the Amendment Application (IA)
22. PGCIL vide its reply dated 9.9.2022, has submitted as under:
(a) The Petitioner is seeking (i) to challenge the findings arrived at by the
Commission pertaining to Element 2 in the above -mentioned order and the same
is not permissible, (ii) to re-argue the stand of the Petitioner that the DTPC and
PLCC at Kishanganj GIS Substation were not in the scope of the Petitioner, (iii)
to raise fresh grounds to challenge the order dated 05.05.2022 and (iv) made
other additions/amendments to not only impugn the order dated 05.05.2022 but
also alter the very basis of the main petition 470/MP/2019.
(b) The Petitioner in its rejoinder to the objections filed by the Respondent
for the present IA has contradicted some of its own submissions made in the IA
as the stand of the Petitioner is substantially altered in the amendment
application because in the main Petition, the Petitioner has only raised
contentions about completion of work regarding Element 2 within SCOD i.e.
6.3.2019 and there is no prayer seeking a declaration that there is deemed
commissioning/ deemed COD on 6.3.2019 pertaining to Element 2. In the main
petition, the prayer is only with regard to extension of SCOD of Element 1 based
on the Force Majeure events pertaining to Element 1. The prayer regarding
Element 2 has been made for the first time by the Petitioner in the amendment
application.
(c) Further, the Petitioner is not presenting the correct findings arrived at by
the Commission in the order dated 5.5.2022 regarding the responsibility of
installation of DTPC and PLCC at Kishanganj GIS substation. The Petitioner is
only seeking to misinterpret the said order to its advantage while ignoring the
combined findings in the other relevant paragraphs. The Petitioner is seeking to
project as if the issue of DTPC and PLCC being under the scope of the Petitioner
will be re-considered by the Commission in the present proceedings, whereas,
what the Commission has deferred for consideration is the decision pertaining to
condonation of the time overrun of 9 days in commissioning of PGCIL`s assets
associated with Element 2 of the Petitioner and covered under Petition No.
677/TT/2020 and same shall be decided at the time of truing up of the tariff of
……………………………………………………………………………………………………………
the 2019-2024 tariff period. Otherwise also, as per the CTUIL letter dated
19.02.2019 which is an integral part of the Connection Agreement it becomes
clear that in accordance with Clause 1.2 of the said agreement, the installation
of DTPC and PLCC at Kishanganj GIS sub-station were the responsibility of the
Petitioner.
(d) The bays that are essential elements which connect to the transmission
line and the non-availability of the 80 MVAR switchable line reactor at Kishanganj
did not affect the completion or successful operation of the 400 kV Kishanganj –
Darbhanga line as evident from successful trial operation of the assets. Non-
availability of the line reactor has not affected the operation/availability of the line
from 11.3.2019 onwards till the reactor is commissioned on 22.6.2019. The
above-mentioned delays in commissioning of the reactor was for reasons beyond
the control of PGCIL.
Rejoinder on behalf of the Petitioner on PGCIL’s reply on merits:
23. The Petitioner in its rejoinder dated 26.9.2022, has submitted as under:
(a) The principle of amendment of pleadings is enshrined in Order 6 Rule

17 of the Code of Civil Procedure ,1908 (CPC) which aims to minimize the
litigation, minimize the delay and to avoid multiplicity of suits. Based on the
above principle, the Petitioner, by way of amending its petition is not changing
its stand or relief in any manner, rather the Petitioner is trying to avoid
multiplicity of proceedings. In this regard, the Petitioner has placed its reliance
on the judgment of the Hon`ble Supreme Court in the case of Sampath Kumar
v. Ayyakannu, [(2002) 7 SCC 559] wherein it has been laid down that the
amendment ought to be allowed where (a) the basic structure of the suit is not
altered by the proposed amendment even if the nature of relief sought is
different, (ii) if it is permissible for the party to file an independent Petition, why
the same relief which could be prayed for in a new petition cannot be permitted
to be incorporated in the pending suit, ((iii) allowing the amendment would
curtail multiplicity of legal proceedings (iv) Order 6 Rule 17 of the CPC confers
jurisdiction on the Court to allow either party to alter or amend his pleadings at
any stage of the proceedings and on such terms as may be just. Such
……………………………………………………………………………………………………………
amendments as are directed towards putting – form and seeking determination
of the real questions in controversy between the parties shall be permitted to
be made, and (v) Pre-trial amendments are allowed more liberally than those
which are sought to be made after the commencement of the trial or after
conclusion thereof. In former case generally, it can be assumed that the
defendant is not prejudiced because he will have full opportunity of meeting the
case of the plaintiff as amended.
(b) On 27.2.2019, a Connection Agreement was entered into between ATL

and PGCIL where ATL was required to provide FODP and approach cable. As
the TSA provides for substation works to be completed by ATL only at the
Darbhanga end, the requirement under Connection Agreement ought to pertain
only to Darbhanga Substation. However, on PGCIL’s request, on 10.3.2019,
the certain works were completed, tested and commissioned in the presence
of PGCIL’s representative namely (i) PLCC was installed (within SCOD) at
Kishanganj Substation, and (ii) Cable termination works for DTPC including
FODP and approach cable.
(c) Thereafter, on 11.3.2019 after receiving permission from ERLDC,

charging of Element 2 along with both bays at both ends started. Moreover,
there is no mismatch of commissioning as PGCIL in its Petition No.
677/TT/2021 has also sought approval of COD of its bays at Kishanganj from
14.3.2019 and on the same date i.e. 14.03.2019, ATL has also achieved its
commercial operation of Element 2. As per the Commission’s order in the
above Petition, time overrun of PGCIL’s bays at Kishanganj end has to be
decided along with extension of SCOD of the Petitioner’s transmission project
(Element 2) in the present Petition.
(d) The switchable line reactors are required for charging of the line i.e.
Element 2. As per Schedule 3 of the TSA, it was PGCIL’s obligation to complete
the switchable line reactors on each circuit at Kishanganj end to control voltage
so that there is no tripping in lines which are longer than 200 km. However,
PGCIL had only set up a single 80MVAr switchable line reactor with NGR for
……………………………………………………………………………………………………………
circuit - I of Element 2, thus, PGCIL chose to bypass the requirement of
installing line reactor for circuit – II. Therefore, PGCIL’s submission that non-
completion of switchable line reactors has no effect on commissioning of
Element 2 is incorrect.
(e) The original relief sought by the Petitioner was extension of SCOD of the
Transmission Project with no financial implication on LTTCs due to commercial
operation of Element 2 seven days after the SCOD. In the amended petition,
the Petitioner has inter alia sought for condonation of delay in commercial
operation of Element 2 due to no fault of the Petitioner under TSA. Effect of
both, the original Petition and the amended Petition remains the same.
However, since determination of time over-run is directly related to SCOD, the
Petitioner’s submissions regarding Element 2 are necessary and pertinent to
be taken on record for adjudication of time overrun for Element 2.
directed to implead CTUIL and BPC and file revised memo of the parties. CTUIL and
BPC were directed to file their reply.
25. During the course of hearing, learned counsel for the Respondents No. 1 and
6 sought time to file reply to the IA. Accordingly, Respondents were directed to file
reply to the IA. The Respondents have filed their reply.
26. During the course of hearing, learned counsels for the Petitioner and the
Respondents made their detailed submissions in the matter. The Petitioner vide
Record of Proceedings for the hearing dated 24.11.2022 was directed to provide the
……………………………………………………………………………………………………………
information called for. The Petitioner vide its affidavit dated 22.12.2022 has provided
the information called for. The Petitioner has placed on record the details for Element
1 with respect to the Court Cases, Stay/Injunctions for different locations, as well as
the details with respect to the Statutory Clearances/Permissions in a tabular format.
The Petitioner has also placed on record google earth files for both Elements which
includes diagram reflecting the three BPC routes and diagram reflecting ATL route.
27. Vide Record of Proceedings for the hearing dated 24.11.2022, CTUIL was
directed to submit the scope of work related to elements in use including installation
of PLCC, DTPC etc. and details of the identified responsible entities for each such
scope. CTUIL vide its affidavit dated 28.12.2022, has submitted the information in a
tabular format detailing the scope of work related to elements in use including
installation of PLCC, DTPC, etc. and identified responsible entities for each such
scope.
28. Vide Record of Proceedings for the hearing dated 24.11.2022, the parties were
permitted to file their written submissions. The Petitioner and the Respondents No. 1
& 6 have filed their written submissions dated 17.12.2022.
Written submissions
29. The Petitioner in its written submissions dated 17.12.2022, has mainly
reiterated the submissions made in the pleading and additionally has submitted as
under:
(a) Out of 321 towers on Element 1, ATL faced ROW issues at over 150
locations spread across a length of 81.5 km. The Petitioner has placed on
……………………………………………………………………………………………………………
record details regarding specific locations affected by RoW issues and
corresponding delays vide additional affidavit dated 27.1.2023 and 22.12.2022.
(b) The Force Majeure events faced by the Petitioner were unforeseen and
completely beyond the control of the Petitioner which cumulatively impacted the
critical path of Element 1 caused delays in completion of foundation, erection
and stringing works. However, the Petitioner in order to resolve the same,
undertook various mitigating steps viz., (i) numerous requests made for support
from CEA, local authorities, DM, BDO, SP and LTTCS vide various
correspondences issued to authorities; (ii) defended all suits for injunctions filed
by the land-owners; (iii) approached the DMs for directions under Section 16(1)
of the Telegraph Act, 1885.
(c) Despite numerous requests and correspondences issued by the

Petitioner, the LTTCs have not only failed to assist the Petitioner but also they
have failed to acknowledge the Petitioner’s letters and Force Majeure.
Moreover, it was only on 8.8.2019 that the Petitioner had received a letter from
Bihar State Power (Holding) Company Ltd stating that the Petitioner’s plea
raised vide letter dated 4.5.2019 does not qualify as Force Majeure.
(d) The Petitioner’s scope was stretched beyond the TSA just 7 days before
the SCOD. However, despite the same, the Petitioner completed all works by
10.3.2019. Element 2 was commercially operated from 14.3.2019 along with
PGCIL’s bays. Hence, there is no mismatch in commissioning.
30. The Respondent Nos. 1 and 6, in written submissions dated 17.12.2022, has
mainly reiterated the submissions made in the reply and additionally has submitted as
under:
(a) The present Project was awarded to the Petitioner through TBCB route
and hence, while submissions of the bid by the Petitioner, issues like statutory
clearances and RoW, etc. are expected to be accounted for. It is well known
……………………………………………………………………………………………………………
that any transmission project faces such issues while its implementation and
such issues are not unforeseen.
(b) The Petitioner, by 31.3.2016, was well aware of the route for laying the
transmission lines and the obstacles it might face therein during laying of
lines/erection of towers. Therefore, the delay in the commissioning and
implementation of the Project is attributable to failure and negligence on the
part of the Petitioner in applying for various statutory clearances and permits.
(c) Moreover, there was a delay on the part of the Petitioner from the very
beginning and the same has not been justified, as on one hand, approximately
1 year 3 months i.e. 450 days are lost in seeking approvals from the TSA
effective date i.e. 6.1.2016 to 3.4.2017. While on the other hand, the delay from
the SCOD to the alleged COD of Element 1 is about 320 days (10-11 months).
(d) The Petitioner has also grossly failed to follow the recommendation of
the ‘Report of Task Force on Transmission Projects’ dated 28.2.2005, issued
by the Ministry of Power vide Office Order No. 11/2/2005-PG, as there have
been no efforts on the Petitioner’s part to reduce the time that was eventually
taken in the execution of its Project which clearly depicts the negligent conduct
of the Petitioner. Hence, the beneficiaries ought not to be made to face the
burden of the Petitioner’s defaults and delays.
Analysis and Decision:
31. We have considered the submissions of the Petitioner and the Respondents
and perused the pleadings and documents available on record. The following issues
arise for our consideration:
Issue No. 1: Whether the Petitioner has complied with the provisions of the
TSA before approaching the Commission for claiming relief under Force
Majeure?
……………………………………………………………………………………………………………
Issue No. 2: Whether the Petitioner is entitled for time extension under Force
Majeure for Element 1?
Issue No. 3: Whether there is time over-run in respect of Element 2 due to

delay in implementation of PLCC and DTPC?
The above issues have been dealt with in succeeding paragraphs.
Issue No. 1: Whether the Petitioner has complied with the provisions of the TSA
before approaching the Commission for claiming relief under Force Majeure?
32. The Petitioner has claimed relief under Article 11 (Force Majeure) of the TSA.
Article 11.5.1 of the TSA provides as under:
“11.5 Notification of Force Majeure Event
11.5.1 The Affected Party shall give notice to the other Party of any event of Force
Majeure as soon as reasonably practicable, but not later than seven (7) days after the
date on which such Party knew or should reasonably have known of the
commencement of the event of Force Majeure. If an event of Force Majeure results in
a breakdown of communications rendering it unreasonable to give notice within the
applicable time limit specified herein, then the Party claiming Force Majeure shall give
such notice as soon as reasonably practicable after reinstatement of communications,
but not later than one (1) day after such reinstatement.
Provided that such notice shall be a pre-condition to the Affected Party`s entitlement to
claim relief under this Agreement. Such notice shall include full particulars of the event
of Force Majeure, its effects on the Party claiming relief and the remedial measures
proposed. The Affected Party shall give the other Party regular reports on the progress
of those remedial measures and such other information as the other Party may
reasonably request about the Force Majeure.
11.5.2 The Affected Party shall give notice to the other Party of (i) the cessation of the
relevant event of Force Majeure; and (ii) the cessation of the effects of such event of
Force Majeure on the performance of its rights or obligations under this Agreement, as
soon as practicable after becoming aware of each of these cessations.”
33. Under Article 11.5.1 of the TSA, an affected party shall give notice to the other
party of any event of Force Majeure as soon as reasonably practicable, but not later
than seven days after the date on which the party knew or should have reasonably
known of the commencement of the event of Force Majeure. It further provides that
……………………………………………………………………………………………………………
such notice shall be a pre-condition to the affected party`s entitlement to claim relief
under the TSA.
34. In the present case, the Petitioner has placed on record the various notices
issued to the LTTCs intimating the occurrence as well as the cessation of the Force
Majeure events. For severe Right of Way issues due to resistance from local land
owners, court proceedings, lack of administrative local support, etc. the notices were
issued by the Petitioner on 25.6.2018, 12.8.2018, 18.7.2018, 13.8.2018, 7.10.2018,
10.12.2018, 20.12.2018, 25.12.2018, 30.1.2019, 20.2.2019, 7.3.2019, 13.3.2019,
26.3.2019, 27.4.2019, 4.5.2019, 11.5.2019, 18.5.2019, 25.5.2019, 1.6.2019, 8.6.2019,
22.6.2019, 29.6.2019, 6.7.2019 and 17.8.2019 informing and keeping apprised the
other side about severe RoW issues being faced at various locations and requesting
for extension of SCOD. For heavy rainfalls in the States of West Bengal and Bihar, the
notices were issued on 17.8.2017 and 30.10.2017. For the delay in grant of statutory
approvals viz. power-line crossing, highway crossing, defense aviation and social
forest/tree in Government of land, the notice was issued by the Petitioner on
25.1.2019. Further, the Petitioner also issued consolidated notice in respect of all
Force Majeure events on 17.8.2019. In the original Petition, the Petitioner had
indicated that many of the claimed force majeure events were still on-going as the
approval(s) were still pending. However, in the amended Petition, the Petitioner has
indicated the receipt of various approval(s) post filing of the Petition and the completion
of works relating to Element 1. As such, none of the Respondents have made any
submission/objection on the aspect of issuance of notice by the Petitioner under the
aforesaid provision.
……………………………………………………………………………………………………………
35. As per Article 11.5.1 of the TSA, it is clear that issuance of notice about the
Force Majeure event is a pre-condition to the affected Party’s entitlement to claim relief
under Force Majeure. In our view, before approaching the Commission, the Petitioner
has complied with the requirement of TSA regarding prior notice to the LTTCs
regarding occurrence of Force Majeure events relating to (i) Right of Way issues due
to disputes and resistance by the local land owners, court proceedings and lack of
administrative local support, etc.; (ii) delay due to heavy rainfall in the States of West
Bengal and Bihar and (ii) delay in obtaining the statutory clearances.
36. The issue is answered accordingly.
Issue No. 2: Whether the Petitioner is entitled for time extension under Force
Majeure for Element 1?
37. The Petitioner has sought time extension under the TSA on account of the
occurrence of Force Majeure events during the construction/implementation of the
Element 1, which have led to the delay in achieving the commercial operation of the
said Element.
38. The Provisions of the TSA with regard to “Force Majeure” are extracted
hereunder:
“11.3 Force Majeure
A ‘Force Majeure’ means any event or circumstance or combination of events and

circumstances including those stated below that wholly or partly prevents or
unavoidably delays an Affected Party in the performance of its obligations under this
Agreement, but only if and to the extent that such events or circumstances are not
within the reasonable control, directly or indirectly, of the Affected Party and could not
have been avoided if the Affected Party had taken reasonable care or complied with
Prudent Utility Practices:
(a) Natural Force Majeure Events:
……………………………………………………………………………………………………………
Act of God, including, but not limited to drought, fire and explosion (to the extent
originating from a source external to the Site), earthquake, volcanic eruption, landslide,
flood, cyclone, typhoon, tornado, or exceptionally adverse weather conditions which
are in excess of the statistical measures for the last hundred (100) years,
(b) Non-Natural Force Majeure Events:
i. Direct Non–Natural Force Majeure Events:

● Nationalization or compulsory acquisition by any Indian Governmental Instrumentality
of any material assets or rights of the TSP; or
● the unlawful, unreasonable or discriminatory revocation of, or refusal to renew, any
Consents, Clearances and Permits required by the TSP to perform their obligations
under the RFP Project Documents or any unlawful, unreasonable or discriminatory
refusal to grant any other Consents, Clearances and Permits required for the
development/ operation of the Project, provided that a Competent Court of Law
declares the revocation or refusal to be unlawful, unreasonable and discriminatory and
strikes the same down; or
● any other unlawful, unreasonable or discriminatory action on the part of an Indian
Governmental Instrumentality which is directed against the Project, provided that a
Competent Court of Law declares the action to be unlawful, unreasonable and
discriminatory and strikes the same down.
ii. Indirect Non - Natural Force Majeure Events.

● act of war (whether declared or undeclared), invasion, armed conflict or act of foreign
enemy, blockade, embargo, revolution, riot, insurrection, terrorist or military action; or
● radioactive contamination or ionising radiation originating from a source in India or
resulting from any other Indirect Non-Natural Force Majeure Event mentioned above,
excluding circumstances where the source or cause of contamination or radiation is
brought or has been brought into or near the Site by the Affected Party or those
employed or engaged by the Affected Party; or
● industry wide strikes and labour disturbances, having a nationwide impact in India.
11.4 Force Majeure Exclusions
11.4.1 Force Majeure shall not include (i) any event or circumstance which is within the
reasonable control of the Parties and (ii) the following conditions, except to the extent
that they are consequences of an event of Force Majeure:
(a) Unavailability, late delivery, or changes in cost of the machinery, equipment,
materials, spare parts etc. for the Project;
(b) Delay in the performance of any contractors or their agents;
(c) Non-performance resulting from normal wear and tear typically experienced in
transmission materials and equipment;
(d) Strikes or labour disturbance at the facilities of the Affected Party;
(e) Insufficiency of finances or funds or the agreement becoming onerous to perform;
and
(f) Non-performance caused by, or connected with, the Affected Party`s:
i. negligent or intentional acts, errors or omissions;
ii. failure to comply with an Indian Law; or
iii. breach of, or default under this agreement or any Project Documents.
……
11.6 Duty to perform and duty to mitigate
……………………………………………………………………………………………………………
To the extent not prevented by a Force Majeure Event, the Affected Party shall continue
to perform its obligations as provided in this Agreement. The Affected Party shall use
its reasonable efforts to mitigate the effect of any event of Force Majeure as soon as
practicable.
39. In the light of the provisions of Force Majeure, the claims of the Petitioner have
been examined. The Petitioner has submitted that construction of Project was delayed
for the reasons beyond its control on account of (a) severe RoW and law & order
problems on account of resistance from local land owners during construction works,
lack of administrative local support, pending court proceedings and stays, etc., (b)
dispute with respect to amount compensation payable to the land owners, (c) dispute
with respect to multiple land owners claiming compensation for the same land, (d)
manhandling of Petitioners personnel, (e) court proceedings and stay/interim
injunctions granted thereof, (f) pendency of application made by Petitioner u/s 16(1)
of the Telegraph Act, 1885, (g) lack of appropriate local administrative support, (h)
heavy rainfall and floods in the State of West Bengal and Bihar; and (e) delay in grant
of the requirement of statutory clearance to be obtained from the various authorities.
40. The Respondents 1 & 6 in their reply & written submissions have objected to
the various force majeure claims made by the Petitioner. The Respondents have
submitted that the Petitioner has miserably failed in planning and implementation of
the Project and it ought to have prudently planned its Project execution activities
including acquisition of various statutory clearances to keep itself aligned with the
agreed time frame for completion of transmission Project. It is submitted that delays
caused by the Petitioner in the present case were controllable events i.e. delays in
applying for clearance itself and had the Petitioner acted diligently, the time lapsed in
applying for the statutory clearance could have been avoided, which would have led
……………………………………………………………………………………………………………
to early declaration of commissioning of the Project. The Respondents have also
submitted that as per the Project Execution Plan submitted by the Petitioner itself, the
‘Detailed Survey including route alignment, profiling & tower spotting Detailed Soil
Investigation’ was completed by 31.3.2016 and thus, the Petitioner was well aware of
the route for laying of transmission line and location of obstacles, if any, which it may
face during the laying of lines/erecting towers. It is also submitted that as per Clause
2.14.2.6 of RfP, the Petitioner ought to have been aware of the route for laying of
transmission line and should have familiarised itself with the timeframes involved in
obtaining the permits and clearances and thus, the delays claimed by the Petitioner,
which attributed to its delay in applying for the consents/clearances in first place, ought
not to be allowed. The Respondents have also relied upon the ‘Report on Task for on
Transmission Project’ to contend that the said Report at Article 4.1 clearly provides
that the activities which can be taken up simultaneously include (a) route alignment,
detailed survey & soil investigations for transmission lines & sub-station, and (b)
initiating Forest, Environmental & other statutory clearance after detailed survey and
such practice has the potential to reduce the completion period by 12 months. The
Respondents have submitted that in the present case, the Petitioner has failed to
follow the recommendation of the said Report issued by the Ministry of Power and
there had been no efforts on its part to reduce the time that was eventually taken in
execution of its Project. It has been further submitted that the time lost in seeking
various approvals from the effective date of TSA i.e. 6.1.2016 to 3.4.2017 i.e. the date
from which the Petitioner started applying for statutory clearance, is approximately 450
days whereas the delay from the SCOD to the claimed COD of Element 1 is about 320
days.
……………………………………………………………………………………………………………
41. Per contra, the Petitioner has replied that duly ascertained the route of
transmission line before the commencement of construction. However, the hurdles
faced during laying of line could not have been ascertained until the construction of
line actually started. It has been further submitted that while carrying out the various
targets as per the RfP for the Project, the Petitioner had also applied to the relevant
authorities for consent and approvals/statutory clearances. However, construction of
the Project started only after obtaining the financial closure in October, 2016 and
obtaining the Ministry of Power’s approval under Section 164 of the Act on 19.10.2016.
It is submitted that ‘Detailed Survey including route alignment, profiling & tower
spotting Detailed Soil Investigation’ as referred to by the Respondents was only related
to the construction aspect of the Project, which focused on suitability of the route for
carrying construction of Project. The Petitioner could not have possibly anticipated or
controlled the RoW issues raised by the landowners. Similarly, there is no delay by
the petitioner in applying for the various statutory clearances. It was only towards the
end of 2016 when the Petitioner achieved financial closure and started with
construction activities of the line and accordingly, it applied for the statutory clearances
starting April, 2017. It is submitted that the responsibility of the Petitioner was only with
respect to applying to statutory government authorities, which it did and the delay in
grant of these approval was not within the control of the Petitioner. The Petitioner has
submitted that it is settled law that any delay due to grant of statutory approvals, which
is beyond a reasonable control of the developer, amounts to force majeure under the
agreement and in this regard, has placed the reliance on APTEL’s judgment dated
2.8.2021 in Appeal No. 160/2020 titled as Clearsky Solar Pvt. Ltd. v. KERC and Ors.
and judgment dated 14.9.2020 in Appeal No. 351 of 2018 titled Chennamangathihalli
……………………………………………………………………………………………………………
Solar Power Project LLP and Ors. v. Bangalore Electricity Supply Company Ltd. and
Ors.
42. We have considered the submissions made by the parties. Clause 2.14.2.6 of
the RfP provides as under:
“2.14.2.6. The Selected Bidder shall obtain all necessary Consents, Clearances and
Permits as required. The Bidders shall familiarize itself with the procedures and time
frame required to obtain such Consents, Clearances and Permits.
As per the above provision, the bidders were required to obtain all necessary
Consents, Clearances and Permits as required and also to familiarize itself with the
procedure and time frame required to obtain such Consent, Clearance and Permits.
Thus, the bidders were duly required to factor into the timeline required for obtaining
the various Consent, Clearances and Permits in the course of implementation of the
Project and accordingly, it is expected to apply for Consent, Clearance and Permits at
first opportune moment. We are of the view that there may not a straitjacket approach
in laying down the timelines for applying for the various Consents, Clearance and
Permits as required for the construction of transmission projects but the developer has
to be prudent in timely applying for the requisite the Consent, Clearance and Permits
and the inordinate delays on the part of the developer in making the necessary
applications and the consequent delays in grant thereof cannot be overlooked as it
amounts to negligence on its part and thus, delays caused thereof cannot be
considered under the plea of force majeure as the negligence on the part of TSP is
clearly excluded under the force majeure. Furthermore, the petitioner is expected to
diligently follow up such consents and clearances. Thus, it has to be seen in context
of each statutory approval in respect of the which the Petitioner has raised the force
……………………………………………………………………………………………………………
majeure plea. Hence, it would be appropriate to examine this aspect while dealing with
the individual force majeure claim(s) of the Petitioner in the subsequent paragraphs.
(a) Delay due to Severe ROW issues faced by the Petitioner
43. The Petitioner has submitted that since December 2016, ATL has been facing
RoW issues during the execution of the project works in the form of (i) resistance from
local land owners during construction works; (ii) disputes with respect to the amount
of compensation payable to the land owners in terms of Section 10(d) of the Telegraph
Act, 1985; (iii) Dispute with respect to multiple land-owners claiming compensation for
the same land; (iv) construction of illegal permanent structures under or in the vicinity
of existing Extra High Voltage (“EHV”) transmission lines corridor; (v) manhandling of
ATL personnel, (vi) court proceedings and stay/interim injunctions granted thereof (vii)
pendency of application made by Petitioner under Section 16(1) of the Telegraph Act,
1885 (viii) lack of appropriate local administrative support, etc. The Petitioner has on
several occasions written numerous letters to the District Magistrate (“DM”), of various
regions, the Inspector-In charge of different police stations, the Superintendent of
Police of different areas notifying and apprising each of them of the above-mentioned
issues and requesting their co-operation to resolve the same. The Petitioner has
further submitted that the CEA, in its monthly report of Transmission Projects has
acknowledged that there were RoW constraints being faced by the Petitioner in
construction of Element 1 of the Transmission Project. These reports are in the public
domain and are accessible by the LTTCs. Therefore, the LTTCs are clearly aware of
the hardship faced by the Petitioner in implementing the Transmission Project and the
reasons for the delay. Thus, in view of the above, the Petitioner is entitled to extension
in achieving SCOD on account of RoW issues faced by the Petitioner during the
construction stage of the Transmission Project.

……………………………………………………………………………………………………………
44. The Petitioner has submitted that it faced the severe RoW issues at over 150
locations (out of 321 locations) spread across the length of 81.5 km of Alipurduar-
Siliguri 400 kV D/c line. The Petitioner has submitted that at the beginning of the
construction of the aforesaid line, the Petitioner vide its letter dated 25.11.2016
apprised the District Magistrate (DM), Jalpaiguri about the construction of aforesaid
transmission line and requested for co-operation for all potential administrative issues.
It has been submitted that since December, 2016, the Petitioner continued to face the
severe RoW issues during the execution works. CEA, in its monthly progress report of
Transmission Projects awarded through TBCB route as on 31.12.2016, also
acknowledged the Petitioner facing the RoW issues in construction of the aforesaid
line. It is indicated that the keeping in view the serve RoW issues being faced by the
Petitioner during the execution works, the Petitioner had approached the various
administrative authorities seeking necessary support to resolve the RoW issues till the
commissioning of the aforesaid line. The details of such correspondence as furnished
by the Petitioner, in brief, are as under:
Sr. Date Particulars
Requested the Officer In-Charge, New Jalpaiguri to resolve

1 9.6.2018 the issues relating to resistance by the land owners
demanding the unreasonably high crop compensation.
Requested the Inspector In-Charge, Dhugpuri to extend the

2 23.6.2018 administrative support to the Petitioner against the local
resistance.
The Petitioner again wrote to the Inspector-In-Charge of

6.9.2018, 1.12.2018, difference Police Station and Superintendent of Police of
3 5.12.2018, 8.12.2018, different areas notifying the location specific RoW issues
17.12.2018 and requested for intervention of the police personnel to
resolve the RoW issues.
4 8.8.2018 Informed the DM, Jalpaiguri & Alipurduar about the some
landowners objecting to the execution works at site and
……………………………………………………………………………………………………………
sought support to resolve the above issues in order to avoid
delays.
31.8.2018, 10.9.2018, The Petitioner again notified the DM, Jalpaiguri & Alipurduar
5 30.11.2018, 28.12.2018, about the location specific RoW issues giving details of the
20.2.2019, 14.3.2019, concerned land owners and requested for intervention to
7.5.2019 & 10.5.2019 resolve the issues.
21.7.2018, 10.8.2018,
4.10.2018, 29.11.2018, The Petitioner also wrote to Business Development Officers
26.12.2018, 31.12.2018, (BDOs) of different districts requesting their intervention to
6
31.1.2019, 13.2.2019, RoW issues at different location with respect to foundation,
15.4.2019, 25.6.2019, erection and stringing works.
12.7.2019
BDO, Dhugpuri, Jalpaiguri informed the Petitioner, various

17.9.2018, 26.9.2018 & local administrative authorities and few specific landowners
7
28.9.2018 about meetings regarding RoW issues faced by the
Petitioner.
45. In the meantime, the Petitioner also sought assistance of CEA in resolving the
RoW issues faced by it and the assistance extended by CEA was as under:
Sr. Date Particulars
In a meeting conducted by Chief Engineer, Power System

Project Monitoring Division, CEA, the Petitioner informed CEA
1 12.9.2018 about the RoW issues being faced by it and requested to
direct the concerned authorities to intervene and resolve the
issue. The said request was accepted by CEA.
CEA informed South Bihar Discom about conducting of a

2 28.9.2018 meeting by CEA on 8.10.2018 to resolve the RoW issues
faced by it and also to attend the said meeting.
A meeting was conducted by Chief Engineer, Monitoring

Division, CEA to review the construction of transmission lines
3 8.10.2018
and the RoW issues faced in construction. Despite specific
direction, South Bihar Discom did not attend the said meeting.
Chief Engineer, CEA informed Additional Chief Secretary,

Govt. of West Begnal to instruct the relevant government
4 15.10.2018
authorities to intervene to resolve the issues being faced in
completion of balance works by the Petitioner.
……………………………………………………………………………………………………………
Joint Secretary, Govt. of West Bengal forwarded the copy of
Chief Engineer, CEA’s letter dated 15.10.2018 to DM
5 2.11.2018
Jalpaiguri & Alipurduar – requesting them to intervene in the
prevailing RoW issues at the Project locations.
A meeting was conducted by the DM, Jalpaiguri regarding the

RoW issues wherein it was decided that the sub-Divisional
Officers will meet the MLAs, Petitioner’s representatives,
6 29.11.2018
BDOs, Shabhapati and resolve the issues and that the Block
Land and Land Reforms Officer would monitor the same.
Deputy Director, CEA also attended the said meeting.
Deputy Director, CEA also conducted a site visit in order to

review the progress and situation of construction of
Alipurduar- Siliguri 400 kV D/c line wherein the petitioner
apprised the Deputy Director, CEA about the RoW issues
faced in West Bengal areas. Taking note of the above, the
7 18.3.2019-19.3.2019
Deputy Director, CEA gave instructions to respective DMs
and asked them to depute an officer from their departments
to take up the RoW issues with respective district authorities
of Jalpaiguri & Alipurduar and extend the support to the
Petitioner for timely completion of works.
Chief Engineer, CEA wrote to Principal Secretary, Govt. of

West Bengal about the visit of the construction site by team of
8 8.4.2019
CEA officers & RoW issues and requested to intervene and
render the required assistance for completion of the Project.
46. We have noted the submissions made by the Petitioner on the RoW issues
faced by it at various locations during the implementation of the Alipurduar- Siliguri
400 kV D/c line. A slew of correspondences furnished by the Petitioner indicate the
severity of RoW issues faced by it and the various persuasive measures undertaken
by it including approaching the concerned authorities under the Telegraph Act, 1985,
State Government, Hon’ble High Court of Calcutta by way of Writ Petitions as well as
the Central Electricity Authority for assistance in resolving these RoW issues.
However, it has to be noted that RoW issues are part and parcel of implementation of
transmission system projects and the developers are expected to factor into the
eventualities of facing of such problems and the consequent time & efforts to be
……………………………………………………………………………………………………………
undertaken in resolving them. Every geographical area from where the transmission
line is to be laid / to be passed through has it fair share of difficulties, be it difficult
terrain or RoW issues, which the developer undertakes to deal with while bidding for
such large scale infrastructure projects. As such, there cannot be any objective criteria
for terming the RoW issues faced by the licensee/developer as a force majeure event.
In each case, the licensee/developer claiming the RoW issues as force majeure has
to satisfactorily demonstrate that despite making an all out efforts and exhausting all
the available remedies to it, the licensee could not resolve such issues for no fault of
its own and this ultimately led to the delay in implementation of the transmission
project.
47. In other words, whether the RoW issue, in particular case, qualifies as a force
majeure event or not has to be examined on the basis of the facts & circumstances
involved in each case and also the efforts & remedies availed by the licensee to
resolve such issues in such case. As already noted above, the Petitioner has
submitted the details of correspondences exchanged with various Authorities along
with supporting documents. Insofar as they relate to the obstruction/ resistance from
the land owners, request for intervention/ assistance of the Govt. Authorities in dealing
with them etc. cannot be considered as force majeure event and no relief under force
majeure can flow to the Petitioner as such activities are required to be anticipated by
the licensee during the course of implementing the projects. However, what have to
be distinguished from these generic efforts of resolving the RoW issues are the delays
- owing to the stays/injunctions granted by the Courts and the Court proceedings
arising out these RoW issues & in the course of the Petitioner having availed the legal
remedies in resolving the RoW issues. Accordingly, the delays attributable to the
above aspect have been dealt with separately.

……………………………………………………………………………………………………………
(b) Delay due to stay/injunction granted by the court and delay due to various
proceedings initiated, either by the landowners or the Petitioner.
48. The Petitioner has further indicated that on 18.2.2019, it filed 9 Nos. of
applications under Section 16(1) of the Telegraph Act, 1885 requesting District
Magistrate (DM), Jalpaiguri and DM Alipurduar to intervene in terms of the power
conferred under the Telegraph Act in respect of its applications under Section 16(1) of
the Telegraph Act before the District Magistrate (DM), Jalpaiguri, inter-alia for exercise
the power of telegraph authority and to resolve the RoW issues, DM, Jalpaiguri, on
25.2.2019, directed the Land Reform Officers to submit a report regarding the
feasibility of the construction of the Petitioner’s transmission line. Therefore, in view
the long pendency of its such applications filed under Section 16(1) before the DM,
the Petitioner, on 19.6.2019, was required to file filed Writ Petition No. 152 of 2019
before the Hon’ble High Court of Calcutta in circuit bench Jalpaiguri, inter alia, seeking
quashing of DM’s order dated 25.2.2019 and direction to DM, Jalpaiguri to dispose of
its Section 16(1) applications at the earliest. In this regard, the Hon’ble High Court of
Calcutta vide order dated 26.6.2019 directed the DM, Jalpaiguri to dispose of the
Petitioner’s Section 16(1) applications within 3 weeks from the date of the order.
Pursuant to the aforesaid order of the Hon’ble High Court of Calcutta, DM, Jalpaiguri,
on 9.8.2019, observed that one joint field survey was required to be conducted by the
land acquisition surveyor in presence of the Petitioner & the landowners and
accordingly, directed the special land acquisition officers to conduct a joint field survey
at the disputed plot and submit its report within 10 days from the receipt of the order.
The said direction was again challenged by the Petitioner on 27.8.2019 through C.O.
No. 60 of 2019 before the Hon’ble High Court of Calcutta on the grounds that (i) despite
the order of Hon’ble High Court dated 26.6.2019, DM, Jalpaiguri kept its applications
……………………………………………………………………………………………………………
filed under Section 16(1) pending, and (ii) that an enquiry by the land acquisition
surveyor for deciding the compensation was beyond the jurisdiction of DM, Jalpaiguri.
Consequently, the Hon’ble High Court of Calcutta in circuit bench Jalpaiguri vide order
dated 30.8.2019 allowed the said application and held that the DM, Jalpaiguri acted
beyond the jurisdiction in directing the acquisition surveyor to arrive at a conclusion
upon a field survey for the purpose of assessing compensation and consequently, the
order of DM, Jalpaiguri dated 9.8.2019 was set aside with specific direction to dispose
of the Section 16(1) applications within a week by providing appropriate police
protection and to record a satisfaction as to whether the resistance was offered to
installation of the electric poles on the lands in question. Consequent to the above,
DM Jalpaiguir vide order dated 6.9.2019 observed that (i) ATL attempted to resume
the construction works on 1.9.2019 but faced stiff resistance from land owners, and
(ii) ATL filed a complained before the concerned police station and intimated the SP
and DMs offices along with copy of the photos and videos regarding resistance faced
in execution of works. Accordingly, DM Jalpaiguri, directed the investigating officer to
submit the report with respect to the obstructions created by the above landowners.
Thereafter, on 17.9.2019, DM Jalpaiguri passed an order dated 17.9.2019 which, inter-
alia, recorded that (i) pursuant to the order dated 6.9.2019, Inspector-in-Charge,
Dhugpuri submitted its report on 12.9.2019, (ii) the dispute between the Petitioner and
one land owner, namely Shri Makchhedul Hoque was resolved, (iii) other land owners
who disputed the compensation were directed to approach the appropriate authority
i.e. District Judge in terms of Section 16(3) of the Telegraph Act, (iv) the land owners
were directed not to obstruct the Petitioner’s activities, and (v) Inspector-in-Charge,
Dhugpuri was directed to submit a compliance report upon successful execution of the
Petitioner’s work on the disputed lands. The Petitioner has further stated that even
……………………………………………………………………………………………………………
after the above order of DM, Jalpaiguri dated 17.9.2019, it continued to face the RoW
issues at several location and consequently, filed the various applications under
Section 16(1) of the Telegraph Act for such locations (as already noted in above table).
49. Further, in response to the specific query of the Commission vide Record of
Proceedings for the hearing dated 24.11.2022, the Petitioner has also furnished the
details of Court Proceedings wherein the stay/injunction has been granted against the
Petitioner, the period thereof and the remedial action taken by the Petitioner vide its
affidavit dated 22.12.2022. The said details are reproduced hereunder
Court
Proceedings
Stay/Injection
Sr. & relevant From - To Remedial action taken, if any
order(s)
element/tow
er loc.
1 Location No. Title Suit No. 22.1.2019 to 1. The Court of Ld. Civil Judge Junior Division
4/A 19/2019 filed 10.8.2019 passed TS for claiming declaration, Injunction
by Ganesh and consequential reliefs along with an
Prasad (about 7 application under order 39 Rule 1 & 2 read with
months) section 151 of CPC on 22.1.2019 and advised
to appear before the court within 10 days.
2. Court allowed injunction till 26.4.2019 vide

order dated 22.1.2019.
3. On 13.2.2019, KPTL (contractor of ATL) filed

an Appeal challenging the Stay Order vide Misc.
Appeal No. 7/2019
4. ATL intimated the matter to DM, SP, SDO,

vide letter dated 14.2.2019.
5. Official from CEA visited the site on

18.3.2019 – 19.3.2019 and requested Principal
Secretary to extend his kind support for
resolving RoW issue vide letter dated 8.4.2019.
6. On 22.4.2019 and 26.4.2019 the matter was

adjourned since the case record was
transferred to the Appellate Court.
7. ATL wrote a letter dated 27.6.2019 to Chief

Secretary, West Bengal Gov. for support in
……………………………………………………………………………………………………………
resolving various RoW issues along with this
court case of Ganesh Prasad.
On 10.8.2019, Settlement Agreement was

executed between parties.
2 Location no. PS/40/2018 16.11.2018 to 1. Kamala Roy filed case no. PS/40/2018 on
7.2.2019 (2 1.10.2018.
143/0 by Kamala Months 7
Roy days) 2. On 16.11.2018, Court issued injunction till
26.11.2018 and thereafter extended till
22.1.2019.
3. Prior to this, the actual dispute regarding the

same land has been started.
4. ATL was served a legal notice dated

25.1.2018. Another notice was received on
12.2.2018 also demanding compensation for
the same land.
5. ATL replied to the notice sent by Swapan vide

its lawyer on 13.2.2018.
6. Again ATL received another notice on

17.4.2018 from Swapan.
7. Swapan Seal sent another letter on

31.12.2018 to DM demanding compensation on
the same land.
8. ATL on 21.1.2019 sent a letter to BLLRO,

Alipurduar, for ownership verification of the said
land.
9. ATL received Memo dated 7.2.2019 from

DM, Alipurduar instructing settle down the case
and submitting compliance report.
10. Only Sudhir Roy able to produce the original

documents and Panchayat certified him as the
actual owner of the land.
3 Location No. Title Suit No. 15.2.2019 to 1. The Court on 15.2.2019 passed the injunction
107/1 5/2019 by 8.4.2019 against ATL till 16.3.2019.
Nilmani Das (About 3
months) 2. Subsequently, ATL appeared before the
court and the court has vacated the injunction
by Order No. 10 dated 8.4.2019.
4 Location Title Suit No. 6.2.2019 to 1. The Court on 6.2.2019 passed the injunction
4/2019 by 23.7.2019 (5 against ATL.
No.107/1 Months and 18
Tarapada Das days)
……………………………………………………………………………………………………………
2. Subsequently, ATL appeared before the
court and the court has vacated the injunction
by Order No. 6 dated 8.4.2019.
3. Misc. Appeal 8/2019 dated 7.5.2019 filed by

Tarapada Das.
4. The case was amicably settled during July’

2019 and compensation paid on dt. 23.7.2019.
50. The Petitioner has submitted the details relating to various proceedings
initiated, either by the landowners or the Petitioner, in respect of the construction of
the line at various locations before the District Magistrate, Jalpaiguri & Alipurduar and
the District Court, Jalpaiguri, etc. The details of some of the relevant proceedings are
reproduced hereunder:
Petitioner Responden
Sr Loc. Case Court/Forum Comments
/Applicant t/Opponent
Ref.No. District Paritosh
89/0 -
1 ATL/SLG/AS/ Magistrate ATL Chandra
90/0
749/2019-2020 Jalpaiguri Roy & Ors.
District Meghlal
73/0 - ATL/SLG/AS/
2 Magistrate ATL Mandal &
74/0 749/2019-2020
Jalpaiguri Ors.
District Bapi Roy, Applications filed by ATL under
75/0 - ATL/SLG/AS/
3 Magistrate ATL Swadesh Section 16 (1) of the Indian
76/0 749/2019 -2020
Jalpaiguri Roy & Ors. Telegraph Act, 1885 on 22.10.2019
Birendra seeking support for executing
District
ATL/SLG/AS/ Nath erection work against the landowners
4 82/1 Magistrate ATL
749/2019-2020 Barman & obstructing the completion of the
Jalpaiguri
Ors. project work
District
ATL/SLG/AS/ Uttam Roy &
749/2019-2020 Ors.
Jalpaiguri
District Ajuar
ATL/SLG/AS/
6 84A/0 Magistrate ATL Rahaman &
749/2019-2020
Jalpaiguri Ors.
ATL/SLG/AS/ District
Ms. Anjali
7 81/0 749/2019 Magistrate ATL
Roy & Ors.
-2020 Jalpaiguri
District
ATL/SLG/AS/ Sh. Susanto
748/2019-2020 Roy & Ors.
Jalpaiguri
Applications filed by ATL under
District Sh.
80/3 - ATL/SLG/AS/ Section 10(d) read with Section 16(1)
9 Magistrate ATL Shailendra
81/0 748/2019-2020 of the Indian Telegraph Act on
Jalpaiguri Nath Roy
2.12.2019 seeking support for
District Sh.
ATL/SLG/AS/ executing the erection works against
10 80/0 Magistrate ATL Briendranath
748/2019-2020 the landowners obstructing the
Jalpaiguri Roy & Ors.
completion of project work.
District
ATL/SLG/AS/ Sh. Jainath
748/2019-2020 Roy
Jalpaiguri
District
81/0 - ATL/SLG/AS/ Sh. Kalidas
12 Magistrate ATL
82/0 748/2019-2020 Roy
Jalpaiguri
District Jagdish
Memo No. Applications filed by ATL under
13 97/0 Magistrate ATL Chandra
408/2019 Section 16(1) of the Indian Telegraph
Jalpaiguri Roy
Act, inter-alia, praying to allow
14 80/2 - Memo No. District ATL Ripon Roy
……………………………………………………………………………………………………………
80/3 408/2019 Magistrate commencement of work by removing
Jalpaiguri obstructions.
District
Memo No.
15 76/2 Magistrate ATL Ratan Roy
408/2019
Jalpaiguri
District
81/0, Memo No.
16 Magistrate ATL Dilip Roy
76/2 408/2019
Jalpaiguri
District
Memo No.
17 76/1 Magistrate ATL Asim Roy
408/2019
Jalpaiguri
Applications filed by ATL under
Section 10(d) read with Section 16(1)
Ref.No. District of the Indian Telegraph Act on
77/0 - Tapan Roy
18 ATL/SLG/AS/ Magistrate ATL seeking support for executing the
78/0 & Ors.
749/2019-2020 Jalpaiguri erection works against the
landowners obstructing the
completion of project work.
132/1 District Kailash
Memo No. Application filed under Section 16(1)
19 - Magistrate ATL Chandra
2216 (3) of the Indian Telegraph Act.
133/0 Jalpaiguri Roy
A complaint dated 6.12.2019 filed
District Sri
Memo No. alleging non-payment of
20 Magistrate Sribash ATL
2468 / LA compensation for damages related to
Jalpaiguri Sarkar
crops and trees on land.
Application filed under Section 10(d)
and Section 16(1) of the Indian
District
Misc Case Santosh Telegraph Act for determination and
21 69/0 Court of ATL
No. 24/2018 Biswas payment of compensation for
Jalpaiguri
diminution of land value and for other
losses.
Application filed under Order 39 Rule
District 1 & 2 read with Section 151 of CPC
Title Suit Paritosh
22 15/2 Court of ATL alleging that ATL and others
No.272/2018 Sarkar
Jalpaiguri demanded the Petitioner to vacate
his plot of land.
Application under Section 16(1) of
District Krishna
87/1 - Memo No. Indian Telegraph Act seeking
23 Magistrate ATL Gobindo
88/0 408/2019 direction to enable commencement
Jalpaiguri Roy
of work.
Complaint
In Court
Reference
of Mr. Shashi Application under Section 144 of
No.
24 82/0 Executive Mohan ATL CrPC alleging breach of peace on his
Ptn/R/No.794/19
Magistrate, Roay land by ATL and Ors.
dated
Jalpaiguri
18.10.2019
Complaint
In the court
Reference Application under Section 144(2)
of Executive Khetku
25 33/0 No. ATL CrPC alleging ATL is doing illegal
Magistrate Roy
Ptn/R/No.949/19 activities on his land.
Jalpaiguri
dated 4.12.2019
Court of
Complaint Jalpesh Application under Section 144 of
Executive
26 38/0 Ptn/R/No. Agro Pvt. ATL CrPC alleging that there is a breach
Magistrate
917/2019 Ltd. of peace on his land by ATL and Ors.
Jalpaiguri
Complaint Court of
KPTL Application under Section 144 of
37/3 - Reference Executive Madan
27 (Contractor CrPC alleging that there is a breach
37/4 No. 919/2019 Magistrate Ghosh
of ATL) of peace on his land by ATL and Ors.
dt. 26.11.2019 Jalpaiguri
Complaint Court of District KPTL Application under Section 144 of
37/4 - Manoranja
28 Ptn/R/O. 922/19 Magistrate (Contractor CrPC alleging that there is a breach
37/8 n Ghosh
27.11.2019 Jalpaiguri of ATL) of peace on his land by ATL and Ors.
(1) KPTL (contractor of ATL) filed an
application under 16(1) of Indian
Telegraph Act on 10.12.2018
Memo No. District KPTL pursuant to which Notice was issued
29 108/2 408/2019 dated Magistrate, (Contracto by DM dated 2.1.2019 for appearing
10.12.2018 Alipurduar r of ATL) before DM.
2) As the OP did not turn up before
the court on 02/01/2019 the court has
issued another notice for appearing
……………………………………………………………………………………………………………
on 22/01/2019 for hearing of the
Section 16(1) petition.
3) Order passed by DM, Alipurduar
on dated. 22.01.2019 for a joint visit
of the proposed land by BDO,
BLLRO- Falakata, ATL & OP to
assess the valuation of both
moveable and immovable to be
damaged by ATL during construction
activity as per Gov. norms. Further
the DM had directed to submit the
valuation report assessed by the
team to the DM office (RM section) on
or before 12.02.2019. And next
hearing to be held on 14.2.2019 at
office of Collector, Alipurduar.
4) BDO serve memo no. 146/1(3) dt.
8.2.2019 to OP to joint survey and
inspection of the land on dt.
11.2.2019.
5) Title suit 3/2019 dt. 12.2.2019
Filed by OP.
6) Court serve show cause notice to
ATL on dt. 19.2.2019.
7) Hearing of TS 3/2019 done by
court on dt. 8.4.2019 and the Court
vacated the temporary injunction
order on the same day.
8) Misc. Appeal No. 7/2019 dt.
8.4.2019 filed by Hazrat Ali.
9) Letter no. ATL/SLG/WO-
292WB/A-S/537/2019-20 dt.
30/04/2019 to DM for disposing the
petition under section 16(1) filed by
ATL and last hearing was conducted
on 22.1.2019
10) Through settlement agreement
dated 27th May 2019, the parties have
amicably settled the matter.
11) Foundation and erection activity
was completed after settlement
agreement.
12) Again the OP resisted KPTL’s
(contractor of ATL) stringing activity
and physically assaulted KPTL’s
officials at site. FIR was lodged on
06/08/2019 against Hazrat Ali and
Ors. (Case no. 412/19 dt. 06/08/2019
under section 363, 365/325/506/34 of
IPC)
13) The stringing activity resumed in
September 2019.
108/1 No. District
Subrata Complaint seeking compensation
30 - G/Complain Magistrate, ATL
Kantha due to him from ATL.
108/2 /181/2019/973 Alipurduar
1) KPTL (contractor of ATL)
challenged the order (Application
no.933 of 2017) in District Judge
court. District Judge vacated the
order on dt. 20.12.2017
Application Executive Arup 2) Caveat No. Order no. 1 dt.
31 15/3 (under 144) Magistrate, Chakrabor ATL/KPTL 20.12.2017 by KPTL.
No.933 of 2017 Jalpaiguri ty
3) Title suit No. 270 (459) /2017 dt.
8.1.2018 filed by Arup Chakraborty &
Manoj Paul.
4) Show cause notice issued by Civil
Judge, JR Div. dt. 8.1.2018.
……………………………………………………………………………………………………………
5) Order no. TS 270(459)/2017 dt.
15.1.2018 passed by the court where
no favourable order has been issued
in favour of plaintiff.
1) The court has ordered IC vide
order dt. 20.3.2018 to keep strict vigil
to ensure the compensation to the
petitioner in the meantime court also
directed BLLRO to submit a detailed
report regarding the land.
2) KPTL (contractor of ATL) vide
letter no ATL/SLG/WO-292WB/138/
2017-2018 dt. 31.5.2018 requested
SDO for identifying the actual land
owners through proper survey as
Asit multiple claimants are arriving for
Petition No. SDEM
32 34/1 Kumar ATL compensation.
205/18 Court
Majumder
3) BLLRO vide memo no.
469/BLLRO(S)/Jal/2018 dt.
27.6.2018 informed that the land is
disputed one and original land owner
could not be found.
4) Asit Kumar Majumder filed Misc.
Case No. 2 of 2019 in the District
Judge Court on dt. 19.1.2019.
5) The Court has dismissed the Misc.
Case No. 2 of 2019 vide order dt.
6.12.2019.
1) Two nos. Caveats file against
Krishna Pada Das in Civil Judge
Court Jr. & Sr. Div. on date
24.1.2019.
2) Legal notice dt. 25.1.2019
received from Ujjal Kumar
Chakraborty Advocate on behalf of
Krishna Pada Das. KPTL (contractor
of ATL) replied the vide letter dt.
4.2.2019.
3) Application under 16(1) filled on dt.
12.2.2019 against Krishnapada Das.
4) Writ petition No. 03 of 2019 filled
by Krishnapada Das at the Circuit
Bench of Calcutta High Court in
Jalpaiguri on dt. 1.3.2019 which was
intimated to us through his advocate
on 14.3.2019.
Civil Judge 5) The final order passed by High
Against
Caveat No. Court Jr. Court on dt. 1.4.2019. The High Court
33 100/4 ATL Krishna
27/2019 Div. & Sr. dispose the matter and instructed the
Pada Das
Div. Petitioner to allow KPTL continue
their work. The Hon. High Court also
ordered DM to determine the
compensation within 2 months from
the date of order.
6) Review Petition No. 1 of 2019 dt.
5.4.2019 filled by Krishnapada Das.
7) Agricultural dept. has submitted
their assessment report vide Memo
No. 647 dt. 25.4.2019.
8) The matter related to WPA 3/2019
came to the DM court. The DM on dt.
4.6.2019 instructed both the parties
to settle the matter amicably and
submit report in the form of affidavit
within 20.6.2019.
9) DM on 20.6.2019 instructed both
the parties to settle the matter
amicably and submit report in the
……………………………………………………………………………………………………………
form of affidavit within 2.7.2019. DM
also asked KPTL to hand over the
proposal for compensation payment
to the Petitioner so the Petitioner can
go through and express their views.
10) KPTL vide letter no. ATL/SLG/A-
S/589/2019-2020 dt. 19.6.2019
handed over the proposal for
compensation payment to the
petitioner.
11) DM on 2.7.2019 instructed both
the parties to settle the matter
amicably and submit report in the
form of affidavit within 15.7.2019.
12) Krishnapada Das has applied a
fresh petition before DM on
15.7.2019.
13) DM on 16.7.2019 has passed the
order by the Ld. DM seeking Joint
Field Survey report by BLLRO,
Dhupguri and also asked KPTL to file
their reply.
14) DM instructed BLLRO vide memo
No. 260/1(A)/XXI/16/WPA/CS/2019
dt. 16.7.2019 for conducting joint
survey.
15) KPTL filed their reply as
instructed by DM on 5.8.2019.
16) DM passed his final order on dt.
16.8.2019 where the compensation
amount of Rs. 2,80,665/- has been
ordered to pay to the Petitioner.
17) KPTL vide letter no. ATL/SLG/A-
S/649/2019-2020 dt. 28.8.2019
handed over the DD to Krishnapada
Das and vide letter no. ATL/SLG/A-
S/670/2019-2020 dt. 13.9.2019 the
submitted the compliance to the
court.
1) Two nos. Caveats file against
Makchhedul Hoque in Civil Judge
Court Jr. & Sr. Div. on date 11.1.2019
& 16.1.2019 respectively.
2) W.P. No. 1366/2019 dt. 17.1.2019
filled by Makchhedul Hoque in
Principal Bench of Calcutta High
Court.
3) BDO’s Memo no. 534/BDO/DPG
dt. 25.1.2019 to Sakoajhora – II Gram
Panchayat for checking the physical
existence of the cold storage of
Civil Judge Makchedul Houeq mentioned in the
Against W.P. no. 1366/2019 dt. 17.1.2019.
Caveat No. Court Jr.
34 98/0 ATL Makchhedul
11/2019 Div. & Sr. 4) Sakoajhora–II Gram Panchayat’s
Hoque
Div. memo no. 333/ SKJ-II/18-19 dt.
29.1.2019 where they replied that no
such cold storage exists in the
mentioned land.
5) BDO’s memo no. 628/BDO/DPG
dt. 30.1.2019 to Sakoajhora – II &
Gadong – I Gram Panchayat,
requesting assistance / support to
completing the execution work of
KPTL (contractor of ATL).
6) Application under 16(1) filled on
12.2.2019 against Makchhedul
Hoque.
……………………………………………………………………………………………………………
7) Counter W.P. No. 152 of 2019 dt.
13.6.2019 submitted in the Circuit
bench of Calcutta High Court at
Jalpaiguri.
8) The Circuit Bench of Kolkata High
Court on 26.6.2019 directed the DM,
Jalpaiguri to dispose the pending
application of 16(1) within 3 months
from the date of order.
9) High court issued the corrected
copy of the order dt. 26.6.2019 on
10.7.2019. Both the order forwarded
to DM on 18.7.2019.
10) KPTL’s letter no. ATL/WO-
292WB/A-S/0623/2019-2020 dt.
19.7.2019 for disposing the
application under 16(1).
11) DM vide order dated 9.8.2019
instructed Special Land Acquisition
Officer, Jalpaiguri to conduct joint
field survey and submit report within
10 days.
12) ATL tries to commence
foundation activities with prior
intimation to all Gov. authorities (DM,
SP, IC, BDO etc.) on dt. 1.9.2019,
however due to stiff resistance, man
handling and sabotage attempt by
Makchhedul Hoque and his family
members. ATL vide letter no.
ATL/SLG/A-S/Admin/0653/ 2019-
2020 dt. 1.9.2019 lodge complain to
local Police station against the same
incident. Subsequently FIR has been
registered vide FIR No. 327/19 dt.
1.9.2019.
13) ATL vide letter no.
ATL/SLG/Admin/0654/2019-2020 dt.
2.9.2019 highlighted the incident to
SP.
14) Makchhedul Hoque filled SLP No.
22165 of 2019 dt. 5.9.2019 before the
Hon. Supreme Court of India for
Prayer for interim relief against final
judgment & order dt. 30.8.2019
passed by the Hon. High Court at
Calcutta in circuit bench at Jalpaiguri
in C.O. No. 60 of 2019.
15) Several meetings have been
conducted with Makchhedul Hoque in
presence of local administration and
political leaders to settle the issue
amicably and finally on dt. 17.9.2019
settled the matter and subsequently
NOC has been issued by
Makchhedul Hoque and his son.
16) Amicably settled compensation
amount, in mode of 5 cheques, has
been deposited under the custody of
local authority as decided during the
meeting vide letter no. ATL/WO-
292WB/A-S/674 dt. 17.9.2019.
17) DM vide order dt. 17.9.2019
directed the SP, Jalpaiguri to take up
the matter accordingly and issue
necessary direction to the IC so that
Tower can be installed peacefully.
Also instructed IC to submit
……………………………………………………………………………………………………………
compliance report after completion of
the work.
18) Hon`ble Supreme Court of India
permitted the withdrawal of SLP No.
22165 of 2019 vide ROP dt.
20.9.2019 and subsequently, the
case has been disposed of.
51. Perusal of the above reveals that being aggrieved by the continued
resistance by the landowners, the Petitioner, in the present case, had availed the
various legal remedies available to it including filing the number of applications before
the District Magistrates, Jalpaiguri & Alipurduar under Section 16(1) of the Telegraph
Act seeking permission to exercise the power of telegraph authority and to resolve the
RoW issues faced by it. Pursuant to the said application, DM-Jalpaiguri, on 25.2.2019,
directed the Land Reform Officers to submit a report regarding the feasibility of the
construction of the Petitioner’s transmission line. Furthermore, keeping in view the
long pendency of its Section 16(1) applications before the DM, the Petitioner, on
19.6.2019, also filed Writ Petition No. 152 of 2019 before the Hon’ble High Court of
Calcutta in circuit bench Jalpaiguri, inter-alia, seeking quashing of DM’s order dated
25.2.2019 and direction to DM, Jalpaiguri to dispose of its Section 16(1) applications
at the earliest. The Hon’ble High Court of Calcutta vide order dated 26.6.2019 directed
the DM, Jalpaiguri to dispose of the Petitioner’s Section 16(1) applications within 3
weeks from the date of the order. Pursuant to the aforesaid order of the Hon’ble High
Court of Calcutta, DM-Jalpaiguri, on 9.8.2019, observed that one joint field survey was
required to be conducted by the land acquisition surveyor in presence of the Petitioner
and the landowners and accordingly, directed the special land acquisition officers to
conduct a joint field survey at the disputed plot and submit its report within 10 days
from the receipt of the order. The said direction was again challenged by the Petitioner
on 27.8.2019 through C.O. No. 60 of 2019 before the Hon’ble High Court of Calcutta
on the grounds that (i) despite the order of Hon’ble High Court dated 26.6.2019, DM,
……………………………………………………………………………………………………………
Jalpaiguri kept its Section 16(1) applications pending, and (ii) that an enquiry by the
land acquisition surveyor for deciding the compensation was beyond the jurisdiction
of DM, Jalpaiguri. Consequently, the Hon’ble High Court of Calcutta in circuit bench
Jalpaiguri vide order dated 30.8.2019 held that the DM, Jalpaiguri had acted beyond
the jurisdiction in directing the acquisition surveyor to arrive at a conclusion upon a
field survey for the purpose of assessing compensation and the order of DM, Jalpaiguri
dated 9.8.2019 was set aside with specific direction to dispose of the Section 16(1)
applications within a week by providing appropriate police protection and to record a
satisfaction as to whether the resistance was offered to installation of the electric poles
on the lands in question. Above conduct of the Petitioner clearly reflects that not only
the Petitioner had been prudent in filing of Section 16(1) applications before the DM,
Jalpaiguri, it also went on to approach the Hon’ble High Court for the early and proper
disposal of its Section 16(1) applications. However, aggrieved by the decision of
Hon’ble High Court at Calcutta in circuit bench at Jalpaiguri, one Mr. Makchhedul
Hoque went on to file SLP No. 22165 of 2019 dated 5.9.2019 before the Hon`ble
Supreme Court for interim relief. Consequent to decision of Hon’ble High Court at
Calcutta, DM Jalpaiguir vide order dated 6.9.2019 observed that (i) ATL attempted to
resume the construction works on 1.9.2019 but faced stiff resistance from one Shri
Makchhedul Hoque and other land owners, and (ii) ATL filed a complained before the
concerned police station and intimated the SP and DMs offices along with copy of the
photos and videos regarding resistance faced in execution of works. Accordingly, DM
Jalpaiguri, directed the investigating officer to submit the report with respect to the
obstructions created by the above landowners. Thereafter, on 17.9.2019, DM
Jalpaiguri passed an order dated 17.9.2019 which, inter-alia, recorded that (i) pursuant
to the order dated 6.9.2019, Inspector-in-Charge, Dhugpuri submitted its report on
……………………………………………………………………………………………………………
12.9.2019, (ii) the dispute between the Petitioner and one Shri Makchhedul Hoque
was resolved, (iii) other land owners who disputed the compensation were directed to
approach the appropriate authority i.e. District Judge in terms of Section 16(3) of the
Telegraph Act, (iv) the land owners were directed not to obstruct the Petitioner’s
activities, and (v) Inspector-in-Charge, Dhugpuri was directed to submit a compliance
report upon successful execution of the Petitioner’s work on the disputed lands.
Thereafter, the Hon`ble Supreme Court vide its order dated 20.9.2019 permitted the
withdrawal of SLP No. 22165 filed by Mr. Makchedul Hoque against the judgment of
the Hon`ble High Court at Calcutta with observation that the matter is amicably settled
between the parties and consequently, the case has been disposed of.
52. Insofar as the contention of the Respondents 1 & 6 with regard to delays being
contributed by the Petitioner itself is concerned, it does not hold any merit in respect
of the Petitioner’s force majeure plea for delays caused due to stays/injunctions
granted by Courts and/or Court proceedings. Merely because the “Detailed Survey
including route alignment, profiling & tower spotting, Detailed Soil Investigation” was
completed by the Petitioner on 31.3.2016 – thereby the Petitioner being aware of the
route for laying of transmission line, the Petitioner cannot be expected to have
anticipated or control the proceedings before the various Court that may be instituted
by it / against it in course of implementation.
53. The Petitioner has submitted that Location Nos. 4/A, 143/0 and 107/1 were
impacted due to the court proceedings. The Petitioner has further submitted that it has
filed Writ Petition No. 152 of 2019 before the Hon’ble High Court of Calcutta seeking
quashing of DM’s order dated 25.2.2019. The Hon’ble High Court of Calcutta vide
order dated 26.6.2019 directed the DM, Jalpaiguri to dispose of the Petitioner’s
……………………………………………………………………………………………………………
Section 16(1) applications within 3 weeks from the date of the order. Aggrieved by the
decision of Hon. High Court at Calcutta in circuit bench at Jalpaiguri, Mr. Makchhedul
Hoque filled SLP No. 22165 of 2019 dated 5.9.2019 before the Hon`ble Supreme
Court for interim relief. Subsequently, on 17.9.2019, DM Jalpaiguri passed an order
for determination of compensation for utilization of the land of the Petitioners for
installation of high-tension transmission lines. Thereafter, the Hon`ble Supreme Court
vide its order dated 20.9.2019 permitted the withdrawal of SLP No. 22165 filed by Mr.
Makchedul Hoque against the judgment of the Hon`ble High Court at Calcutta with
observation that the matter is amicably settled between the parties and consequently,
the case has been disposed of.
54. Perusal of the above proceedings indicate that for the period from 16.11.2018
upto 20.9.2019 i.e. 308 days, the Petitioner was restrained and severely marred from
carrying out the construction works on one or the other locations due to injunction/stay
granted against the Petitioner in suits/applications filed by the various land owners.
Some of these stays/injunctions continued beyond SCOD of 06.03.2019. This
severely hampered the progress of the project at one or the other tower location. Thus,
we are inclined to consider this period of 308 days during which the Petitioner was
effectively restrained from carrying out the construction works at one or the other
location as force majeure event and consequently, condone the delay in achieving the
COD of the Project to the above effect.
(c) Delay in grant of statutory clearance

(i) NH Crossing Approval
55. The Petitioner has raised the Force Majeure claim in respect of delay in the
approval of NH crossing in respect of its tower locations (i) 59/0 – 60/0, (ii) 114/0 –
115/0 and (iii) 89/0 – 90/0. The Petitioner has submitted that for the approvals/NoCs
……………………………………………………………………………………………………………
for the NH Crossing at the aforesaid locations, the Petitioner applied to (i) Executive
Engineer, PWD, Matigara, (ii) Executive Engineer, PWD, Alipurduar and (iii) Project
Director, National Highway Authority of India respectively on 22.5.2017. However, the
approvals were received only on 28.11.2019 (after 920 days), 15.1.2020 (after 968
days) and on 20.12.2019 (after 942 days). The Petitioner has submitted that factoring
the standard time of 90 days as per the industry practice, the above approvals were
received after the delay of 830 days, 852 days and 878 days respectively and such
delays constitute a Force Majeure event, which deserve to be condoned.
56. The Respondents has submitted that the Petitioner was well aware about its
obligation to familiarize itself with respect to time frame required to obtain clearances
before submission of its bid. The Petitioner should have prudently planned its project
execution activities. The Petitioner has delayed in applying for statutory clearances.
The delay in obtaining statutory clearances by the Petitioner was ‘controllable’ and
had the Petitioner acted diligently, the time lapsed in applying for statutory clearances
could have been avoided. ATL is solely responsible for delay caused in achieving
SCOD.
57. We have considered the submissions made by the Petitioner. As already noted
above, as per Clause 2.14.2.6 of the RfP, the bidder(s) were required to familiarize
themselves with the procedure and the time frame required to obtain various Consent,
Clearance and Permits required for the Project. Accordingly, in the course of
implementation of the Project, the developer/ licensee has to apply for such Consent,
Clearance and Permits duly considering the timeframe in grant of the such Consent,
Clearance and Permits by the Government Authorities & Instrumentalities.
Accordingly, the dealy on account of NH clearance is not extendable under Force
……………………………………………………………………………………………………………
Majeure conditions. In the context of NH crossing approval, it is noticed that despite
the route of its transmission line having been finalized on 3.5.2016 and construction
works having started after achieving the financial closure on 14.10.2016, the Petitioner
applied for the concerned NH Crossing only on 22.5.2017. Thus, there appears to be
inexplicable delay on the part of the Petitioner in timely applying for the NH crossing
approval. Moreover, the sequence of the events as submitted by the Petitioner in the
respect of its applications for NH crossing approval also indicate lapse on the part of
the Petitioner in taking timely follow-up with the concerned authorities. For instance,
despite its applications having been returned for submissions of additional documents
by the concerned authorities way back in August / October/ November, 2017, the
Petitioner submitted the revised application with additional details only in March, 2018.
All these, in our view, indicate that the substantial delays in receipt of the approval can
be attributed to conduct of the Petitioner itself and therefore, such delays cannot be
condoned under the force majeure events.
(ii) Delay due to tree-felling
58. The Petitioner has submitted that it applied for the felling trees and transit pass,
to the Forest Department, Government of Bengal in October 2018 i.e. 6 months before
the SCOD and then in January 2019. The applications for tree felling and transit were
submitted after obtaining the approvals of NH crossing from the concerned authority
and Element 1 i.e. Alipurduar to Siliguri Transmission Line, was scheduled to cross
the National Highway No – 31 (Guwahati – Barhi) at 3 Points and a State Highway No.
12 near Alipurduar. The approval for felling trees and transit pass was not granted
even till November 2019 i.e. the date of filing of the present Petition.
……………………………………………………………………………………………………………
59. We have considered the submissions of the Petitioner. As per Clause 2.14.2.6
of the RfP, the bidder(s) were required to familiarize themselves with the procedure
and the time frame required to obtain various Consent, Clearance and Permits
required for the Project. The Petitioner was well aware about its obligation to
familiarize itself with respect to time frame required to obtain clearances before
submission of its bid. As noted above, the route alignment of the transmission line was
finalized on 3.5.2016 and construction works also commenced after achieving the
financial closure on 14.10.2016. However, the Petitioner applied for the tree felling
approval to the concerned authorities only on 11.1.2019 i.e. fag end of the Project
completion date. Such lapse on the part of the Petitioner in timely applying of the
approval cannot be condoned. Accordingly, we are not inclined to entertain the claim
of the Petitioner toward delay in grant of tree felling approvals under the force majeure
event.
(iii) Delays on account of Power line Crossing Approvals
60. The Petitioner has submitted the between 3.4.2017 and 18.10.2017, it
submitted multiple applications for power line crossing approval to PGCIL. While the
first approval was granted on 16.6.2017, several other approvals were significantly
delayed with the last approval being granted only on 1.6.2019 and the three approvals
being granted after the SCOD. The key power line crossing approvals in respect of
which significant delays has been indicated by the Petitioner are as under:
Power Line Crossing Approval

Sr. Tower location From Till Total days
1 Location no. 7A/0 - 8/0 16.10.2017 14.02.2019 486
2 Location no. 9/0 – 9A/0 16.10.2017 01.06.2019 593
3 Location no. 23/0 – 24/0 03.08.2017 21.12.2018 431
4 Location no. 26/0 – 27/0 17.04.2017 21.12.2018 613
5 Location no. 47/0 – 48/0 17.04.2017 16.02.2018 305
6 Location no. 81/0-82/0 16.10.2017 04.04.2019 535
……………………………………………………………………………………………………………
7 Location no. 92/0 – 93/0 16.10.2017 04.02.2019 476
8 Location no. 119/0 – 120/0 06.05.2017 25.01.2018 264
61. We have considered the submissions made by the Petitioner. In respect of the
making application for power line crossing approval also, there appears to be
significant delays on the part of the Petitioner. As noted above, the route alignment of
its line came to be finalized on 3.5.2016 and consequently, the construction works also
commenced after achieving the financial closure on 14.10.2016. Therefore, the
Petitioner was well in position to timely apply for the necessary approval for the
concerned crossing. However, the Petitioner seems to have applied for the power line
crossing approval only after significant delays. Such lapse in timely applying for the
approval cannot be condoned. Moreover, based on the details furnished by the
Petitioner in relation to the follow-up actions taken by the Petitioner after making such
applications, lapses appear to be on the part of the Petitioner itself. For instance, in
respect of power line crossing between tower loc. No.81/0-82/0, the Petitioner applied
for permission on 16.10.2017 and the joint site visit was undertaken only on 2.1.2018.
Moreover, after the Petitioner having furnished certain clarification on 27.3.2018, the
next follow-up was taken up by the Petitioner only on 25.9.2018. Similarly, in respect
of power line crossing between tower loc. No. 7A/0 – 8/0, after the Petitioner having
applied for permission on 16.10.2017 and PGCIL having requested ATL to submit the
Diamond Crossing Proposal, the Petitioner re-submitted the Diamond Crossing
approval only on 6.3.2018 i.e. only after significant delay. While the Petitioner has
attempted to justify the said delay by submitted that it required host of activities on its
part to submit Diamond Crossing proposal, we are not persuaded by such justification
for the delay of more than 4 months in re-submission of application. Similar trend
follows more or less in respect of all the power line crossing approvals in respect of
……………………………………………………………………………………………………………
which significant delays have been indicated. Thus, keeping in view the delays on the
part of the Petitioner itself firstly in timely applying for such approvals and secondly, in
diligently following-up such applications, we are not inclined to consider the force
majeure claim of the Petitioner on this account.
(iv) Delays in receipt of PTCC Clearance, Railway Crossing and Defence

Aviation
62. The Petitioner has also indicated the delays in receipt of the approval for
PTCC clearance, Railway Crossing and Defence Aviation and has prayed for
condonation of such delays under force majeure. The delays in receipt of such
approval as indicated by the Petitioner is as under:
Power Line Crossing Approval

Sr. Approval From Till Total days
1 PTCC Clearance 16.5.2018 10.4.2019 329
2 Railway Crossing 18/0 - 19/0 5.12.2017 31.10.2018 330
3 Defence Aviation 29.8.2018 29.4.2019 317
63. We have considered the submissions made by the Petitioner. In respect of the
above approvals as well, there appears to be significant delays on the part of the
Petitioner in making the applications itself. The Petitioner has finalized the route of its
transmission line on 3.5.2016 itself. We are unable to see as to why the Petitioner
could not have made the timely applications for obtaining the above approvals.
Keeping in view that significant delays is on the part of the Petitioner itself in making
timely application, consequent delays in receipt of such approvals cannot be
entertained under the force majeure provisions.
(v) Heavy floods in West Bengal and Bihar between 13.8.2017 to 12.10.2017
64. The Petitioner has submitted that the Element I had suffered construction
issues due to torrential rainfall starting August 2017 with severe floods in 7 districts of
……………………………………………………………………………………………………………
West Bengal and 12 Districts of Bihar region. The floods caused a delay of 60 days in
construction of the Transmission Project which cannot be attributed to the Petitioner,
being absolutely beyond reasonable control of the Petitioner. Due to the floods, there
was complete disruption of normal life and the North Bengal region was completely
cut off from rest of the country due to inundation of rails and roads. This affected over
2 million people in the State of Bihar. Consequently, the transmission lines were water
logged and non-accessible and all activities were to be halted between 11.8.2017 to
12.10.2017. This constituted an event of ‘Natural Force Majeure’ in terms of Article
11.3 (a) of the TSA.
65. We have considered the submissions made by the Petitioner. The period of
floods is much before the SCOD of the project. Although the “flood” is covered under
the “Natural Force Majeure Event” in Article 11.3(a) of the TSA, we notice that nothing
has been placed on record by the Petitioner indicating the concerned areas/districts
of Bihar and West Bengal were declared under the flood. Even otherwise, the
Petitioner has also failed to place any details indicating its Project Site being affected
by the claimed flood in the above districts. In absence of such details, we are not
inclined to consider the relief of force majeure to the Petitioner for the event of heavy
floods during the period from 13.8.2017 to 12.10.2017.
66. Now, coming to the available reliefs for Force Majeure events, Article 11.7 of
the TSA provides as under:
“11.7. Available Relief for a Force Majeure Event

Subject to this Article 11
(a) no Party shall be in breach of its obligations pursuant to this Agreement to the
extent that the performance of its obligations was prevented, hindered or delayed due
to a Force Majeure Event;
……………………………………………………………………………………………………………
(b) every Party shall be entitled to claim relief for a Force Majeure Event affecting
its performance in relation to its obligations under this Agreement.
(c) For avoidance of doubt, it is clarified that the computation of Availability of the
Element(s) under outage due to Force Majeure Event, as per Article 11.3 affecting the
TSP shall be as per Appendix III to the Central Electricity Regulatory Commission
(Terms and Conditions of Tariff) Regulations, 2014, as on seven (7) days prior to the
Bid Deadline. For the event(s) for which the Element(s) is/are deemed to be available
as per Appendix III to the Central Electricity Regulatory Commission (Terms and
Conditions of Tariff) Regulations, 2014, then only the Non Escalable Transmission
Charges, as applicable to such Element(s) in the relevant Contract Year, shall be paid
by the Long Term Transmission Customers as per Scheduled 5 for the duration of such
event(s).
(d) For so long as the TSP is claiming relief due to any Force Majeure Event under
this Agreement, the Lead Long Term Transmission Customer may, from time to time
on one (1) day notice, inspect the Project and the TSP shall provide the Lead Long
Term Transmission Customer’s personnel with access to the Project to carry out such
inspections, subject to the Lead Long Term Transmission Customer’s personnel
complying will all reasonable safety precautions and standards.”
67. Article 11.7(b) of TSA provides that every party shall be entitled to claim relief
for a force majeure event affecting its performance in relation to its obligations under
the Agreement. Article 4.3(a) of TSA provides that TSP shall take all necessary steps
to commence work on the Project from the effective date of the Agreement and shall
achieve Scheduled COD of the Project in accordance with Schedule 3 of TSA.
68. Further, Articles 4.4.2 & 4.4.3 of the TSA provide as under:
“4.4 Extension of Time:
4.4.2 In the event that an Element or the Project cannot be commissioned by its
Scheduled COD on account of any Force Majeure Event as per Article 11, the
Scheduled COD shall be extended, by a ‘day for day’ basis, for a maximum period of
one hundred an eighty (180) days. In case the Force Majeure Event continues even
after the maximum period of one hundred and eighty (180) days, the TSP or the
Majority Long Term Transmission Customers may choose to terminate the Agreement
as per the provisions of Article 13.5.
4.4.3 If the Parties have not agreed, within thirty (30) days after the affected Party’s
performance has ceased to be affected by the relevant circumstances, on how long
the Scheduled COD should be deferred by, any Party may raise the Dispute to be
resolved in accordance with Article 16.”
……………………………………………………………………………………………………………
69. In the foregoing paragraphs, against the various force majeure claims of the
Petitioner, we have only allowed the delays caused due to the stays/injunctions by
various courts and court proceedings arising out of the RoW issues as force majeure
event and consequently, have considered the period of only 308 days (as against the
actual delay of 320 days) liable to be condoned under the force majeure. Keeping in
view that neither side has chosen to terminate the TSA after 180 days as envisaged
in Article 4.4.2 of the TSA, we hereby condone the delay of 308 days under the force
majeure and as a consequence, the SCOD of Element 1 stands revised to 20.1.2020.
70. Keeping in view that the Element 1 achieved the COD only on 20.1.2020 and
the balance delay of 12 days has not been considered by us under the various force
majeure pleas raised by the Petitioner, the Petitioner will be liable to the
consequences, for this delay, as specified in the TSA. In this regard, Article 6.4 of the
TSA provides as under:
71. Article 6.4. of the TSA provides as under:
“6.4 Liquidated Damages for Delay in achieving COD of Project:
6.4.1 If the TSP fails to achieve COD of any Element of the Project or the
Project, by the Element`s/ Project`s Scheduled COD as extended under Articles
4.4.1 and 4.4.2, then the TSP shall pay to the Long Term Transmission
Customer(s), as communicated by the Lead Long Term Transmission
Customer, in proportion to their Allocated Project Capacity as on the date seven
(7) days prior to the Bid Deadline, a sum equivalent to 3.33% of Monthly
Transmission Charges applicable for the Element of the Project [in case where
no Elements have been defined, to be on the Project as a whole] / Project, for
each day of delay up to sixty (60) days of delay and beyond that time limit, at
the rate of five percent (5%) of the Monthly Transmission Charges applicable
to such Element / Project, as liquidated damages for such delay and not as
penalty, without prejudice to Long Term Transmission Customers‘ any rights
under the Agreement”
……………………………………………………………………………………………………………
In view of the above, the Petitioner is liable to pay the liquidated damages to
the LTTCs for the delay of 12 days for achieving the COD of the Element 1 in terms of
Article 6.4.1 of the TSA.
72. The Petitioner has further sought permission to file a separate Petition to seek
the compensation on account of time and cost-overrun, prolongation costs, opportunity
costs, etc. The Petitioner has submitted that it ought to be compensated for the losses
suffered and for the additional expenditure incurred which would not have happened
had the force majeure events as demonstrated by the Petitioner would not have taken
place.
73. Per contra, the Respondents 1 & 6 have submitted that Article 11 of TSA does
not provide any relief towards cost and time over-run and these costs are simple
operational and commercial risks which are to be absorbed by the bidder. It is
submitted that relief available under the Force Majeure provision of the TSA including
Article 11.7 (b) is limited to the extent of its effect on the performance of affected party,
solely in relation to its obligation under the TSA. The relief so granted has no nexus
with any time or cost overrun which TSP may have faced due to occurrence of force
majeure event. Hence, the Petitioner should not be permitted to claim any relief qua
the cost and/or time overrun.
74. The Petitioner, in rejoinder, has submitted that the Petitioner is entitled to claim
recovery of additional expenditure incurred towards time overrun on account of force
majeure. The Petitioner has submitted that it is settled position of law that a
contracting party is entitled to cost overrun/prolongation costs/ escalation costs on
account of an extension of time for completion of work and in this regard, the reliance
……………………………………………………………………………………………………………
has been placed on the judgment of Hon’ble Supreme Court in (i) Assam SEB v.
Buildworth (P) Ltd., (2017) 8 SCC 145 and (ii) K. N. Sathyapalan v. State of Kerala,
(2007) 13 SCC 43 and the judgment of APTEL (i) dated 27.4.2011 in Appeal No.
72/2010 tilted as Maharashtra State Power Generation Co. Ltd. v. MERC and Ors.
and (ii) dated 1.8.2017 in Appeal No. 35/2016 titled as GMR Kamalanga Energy Ltd.
v. CERC and Ors.
75. We have considered the submissions made by the parties. We observe that,
during the pendency of the present Petition, the Petitioner has already filed Petition
No. 265/MP/2021, inter alia, seeking compensation / relief for the additional
expenditure incurred by the Petitioner during the construction of the Project due to
certain Change in Law as well as Force Majeure events as per the applicable
provisions of the TSA. Therefore, the question of granting a liberty in favour of the
Petitioner no longer arises.
76. It is also noticed that PGCIL has raised the issue of mismatch in commissioning
of its associated transmission elements in respect of the Petitioner’s Element 1 under
the TSA. PGCIL has submitted that while Alipurduar- Siliguri 400 kV D/c line achieved
the COD only on 20.1.2020, the associated bays at Siliguir and Alipurduar S/S were
made ready by PGCIL on 1.8.2019 and accordingly, in Petition No. 133/TT/2021 filed
by PGCIL for approval of tariff of these bays, it has sought the approval of COD of
these bays under proviso to Regulation 5(2) of Tariff Regulations, 2019 w.e.f.
1.8.2019. It is stated that by the said date, PGCIL had completed its scope and has
also filed all documentary evidence pertaining to commercial operation i.e. CEA/
……………………………………………………………………………………………………………
RLDC/ CMD certificates and as such PGCIL is entitled to receive the transmission
tariff for the said bays from the date of completion of its scope of work.
77. The Petitioner has, however, submitted that no liability on the Petitioner can
arise in regard to delay in completion of Element 1 which was caused by the events
beyond the control of the Petitioner. It is also submitted that no liability for mismatch
can be imposed before adjudicating the Petitioner’s force majeure claims and it a
settled law that a TBCB licensee could not be charged for mismatch of commissioning
of transmission elements when delay in commissioning of transmission assets under
its scope was condoned on account of force majeure events and SCOD was revised.
In this regard, the Petitioner has placed the reliance on the judgment of APTEL dated
14.9.2020 in Appeal No. 17 of 2019 titled NRSS XXXI (B) Transmission Ltd. v. CERC
and Ors. The Petitioner has submitted that substantial arguments have already been
made in this regard during the proceedings of Petition No. 113/TT/2021 and the
Commission may adjudicate on the above aspect while deciding the Petition No.
113/TT/2021 and no claim of mismatch by PGCIL may be decided in the present
Petition which limits itself to extension of SCOD of the Transmission Project of the
Petitioner.
78. We have considered the submissions made by the parties. Keeping in view that
PGCIL’s claim of tariff in respect of bays at Alipurduar and Siliguri S/S w.e.f. 1.8.2019
is already a subject matter of Petition No. 113/TT/2021 and the parties having already
made their detailed submission on the above aspect therein, the issue of sharing of
transmission tariff in respect of said bays will be decided in the Petition No.
113/TT/2021 only and as such in the present case, we have examined the claims of
the Petitioner confined to the provisions of TSA only.

……………………………………………………………………………………………………………
Issue No.3: Whether there is time over-run in respect of Element 2 due to delay
in implementation of PLCC and DTPC?
79. Prior to dealing with the aforesaid issue, it is necessary to deal with the
objections raised by PGCIL with regard to IA No. 46/2020 filed by the Petitioner
seeking amendment to the main petition as the issue pertaining to readiness of
Element 2 has been raised only by the amended petition. Objecting to the amendment
sought by the Petitioner, PGCIL has submitted that the IA / amendment seeks to
challenge the finding arrived by the Commission in the order dated 5.5.2022 in Petition
No. 677/TT/2020 which is not permissible. It is submitted that by amendment to the
pleadings, the Petitioner cannot re-argue the issue of communication equipment
including DTPC and PLCC not being ready for Kishanganj- Darbhanga 400 kV D/c line
on the proposed date of its commercial operation. It is submitted that there is a finality
to the fact that communication equipment including DTPC and PLCC were under the
scope of the Petitioner and they were not ready on 5.3.2019 (SCOD) or 8.3.2019 (i.e.
date of CEA energisation certificate) and there is also a categorical finding in the said
order that DTPC and PLCC works were completed on 11.3.2019 only pursuant to
which the line achieved COD. PGCIL has further submitted that proposed amendment
would not in any manner aid in determining the real dispute/ controversy between the
parties and would also prejudice PGCIL since the findings arrived by the Commission
in favour of PGCIL in the order dated 5.5.2022 with regard to the TSA and Connection
Agreement are sought to be changed/ altered by seeking amendment where the
Petitioner has taken a revised stand and re-agitated the issues already discussed and
decided by the Commission. In the above background, PGCIL has sought dismissal
of the IA seeking amendment to the Petition as, according to PGCIL, the amendments
sought not only seek to impugn the order dated 5.5.2022 but also alter the very basis
of the Petition which is not permissible as the per basic principles to be taken into
……………………………………………………………………………………………………………
consideration while allowing or rejecting the application for amendment of pleadings
as settled by the Hon’ble Supreme Court in Revajeetu Builders and Developers v.
Narayanaswamy and Sons & Ors., [(2009) 10 SCC 84].
80. Per contra, the Petitioner has submitted that the amendment sought by the
Petitioner is not only necessary for determining the real question in controversy but
also does not cause any injustice to PGCIL. The Petitioner has submitted that the
controversy regarding commissioning of Element 2 arose only in Petition No.
677/TT/2020 and accordingly, the Petitioner had made the required submissions in
the said proceedings. Pertinently, the Petitioner had filed the present Petition on
15.11.2019 seeking extension of SCOD as per the TSA based on the certain force
majeure events affecting Element 1 and as such only contained certain factual
submissions related to Element 2 where the Petitioner contended that the Element 2
was ready for commissioning within SCOD i.e. 6.3.2019. However, vide order dated
5.5.2020 in Petition No. 677/TT/2020, the Commission held that the question of time
overrun for Element 2 was to be determined only in the present Petition. Since the
question of controversy involved is extension of SCOD as per the TSA, in order to
decide the extension of SCOD of the whole Project the requisite submissions
regarding Element 2 are required to be brought on record. It is submitted that Order
VI Rule 17 provides that the amendment of pleadings may be allowed by the Court at
any stage of proceedings. It is also submitted that the no injustice is being caused to
PGCIL by way of amendment as only grounds and submissions related to Element 2
are being sought to be brought on record and premise of the Petition i.e. extension of
SCOD is not altered. The Petitioner has also submitted the contention of PGCIL that
the amendment is prejudicial in light of the Commission’s order dated 5.5.2022 is
……………………………………………………………………………………………………………
nothing but mere assumption that by allowing the amendment, the Commission will
review its order dated 5.5.2022 and such contention is wholly misconceived. The
amendment will only permit the Petitioner to make submissions before the
Commission relating to the Element 2 of its Project.
81. We have considered the submissions made by the Petitioner and PGCIL on the
maintainability of the IA seeking amendment to the Petition. PGCIL has contend that
by way of said amendment(s), the Petitioner is attempting to challenge the findings of
the Commission in order dated 5.5.2022 in Petition No. 677/TT/2020 wherein the
Commission has, inter-alia, held that the communication equipment including the
DTPC and PLCC were under the scope of ATL and were not ready on 5.3.2019
(SCOD) or 8.3.2019 (date of CEA energisation certificate). According to PGCIL, by
way of said amendment, the Petitioner is trying to re-agitate the issue DTPC and PLCC
not being within the scope of the Petitioner, which cannot be permitted. PGCIL has
also alluded that by way of this amendment, the Petitioner is trying to alter the very
basis of the original petition. In the above context, the relevant portion of the
Commission’s order dated 5.5.2022 in Petition No. 677/TT/2020 is extracted
hereunder:
“17. The Petitioner has contended that declaration of deemed COD of the transmission
line as 6.3.2019 by ATL is not in accordance with the regulations and has requested to
issue suitable directions in this regard. We note that ATL has filed Petition
No.470/MP/2019, wherein one of the prayers made by ATL was for extension of SCOD
of its transmission project as it was affected by force majeure events. The instant petition
is for determination of tariff for the bays under the scope the Petitioner and therefore,
we are not inclined to deal with the issue of COD of the transmission line under the
scope of ATL in the instant order. The COD of the transmission lines under the scope
of ATL shall be dealt in Petition No.470/MP/2019, which is pending adjudication
before the Commission.
….
32. ATL in its reply has raised the issue that works of DTPC and PLCC at Kishanganj
Sub-station were under the scope of work of the Petitioner and ATL did the same
gratuitously. ATL has contended that it was not legally bound to do the works of DTPC
……………………………………………………………………………………………………………
and PLCC at Kishanganj Sub-station. We observe that the Petitioner vide letter dated
19.2.2019 had conveyed the connection details of transmission system under ATL to
the Inter-State Transmission Grid and had requested to sign the “Connection
Agreement” with ATL. As per Annexure-III(b) to the said letter, ATL is required to provide
OPGW, Approach Cable & FODP.
Sl. Name of
Nos. Ratings
No Equipment
2(b) OPGW, Two set of FODP Applicant to provide:
Approach and approach 1. For 400 kV Alipurduar- Siliguri D/C
Cable and Cable required as line
FODP per site survey FODP and Approach cable at both ends
shall be provided by POWERGRID.
Therefore, these are not in scope of M/S
ATL.
2. For 400 kV Kishanganj- Darbhanga
D/C line
FODP (1 set) and Approach cable
(Depends on site survey) shall be
provided by applicant at both ends.
33. The Connection Agreement was signed between the Petitioner and ATL on
27.2.2019, which provides as follows:
“1.2 The following documents and their schedules which have been initiated by the
parties and annexed herewith shall be deemed to form an integral part of this
Agreement in the order of precedence listed below:
(a) Additional information for signing Connection Agreement (details submitted by
ATL as per format CON-4)
(b) Connection Offer letter (Issued to ATL by CTU vide letter dated 19.2.2019)
(c) This Agreement”
34. From the above, it is clear that DTPC and PLCC at Kishanganj Sub-station are under
the scope of ATL.
35. ATL has filed Petition No.470/MP/2019, wherein one of the prayers made by ATL
was for extension of SCOD of its transmission project as it was affected by force majeure
events and it is pending adjudication before the Commission. The issues with respect to
DTPC and PLCC at Kishanganj Sub-station will be dealt with in Petition
No.470/MP/2019.
36. We observe that the Petitioner applied for CEA energization of the transmission
asset on 1.3.2019 and the SCOD was 5.3.2019. However, CEA energization certificate
was issued on 8.3.2019. The DTPC and PLCC works were completed by ATL
on11.3.2019 and thereafter transmission asset was put under commercial operation on
14.3.2019 with a time over-run of 9 days. It is observed that there was a time over-run
of 3 days from SCOD till the issue of energization certificate on 8.3.2019. The line could
not be energized as DTPC and PLCC works were completed only on 11.3.2019 and 2
days were taken for charging of the bays. As we have observed in paragraph 35 above,
extension of SCOD and COD of the transmission line of ATL will be decided in the
Petition No.470/MP/2019. Therefore, we are not inclined to take any decision on the
time over-run of the transmission assets of the Petitioner at this stage in the present
petition. The same will be decided at the time of truing up of the tariff of the 2019-24
tariff period, considering the decisions in Petition No.470/MP/2019 after its disposal…..”
……………………………………………………………………………………………………………
Perusal of the above order indicates that while dealing with the issue of readiness
of PGCIL’s 2 Nos. of 400 kV GIS line bays at Kishanganj GIS sub-station associated
with the Petitioner’s Kishanganj- Dharbhanga 400 kV D/c line, the issue of works of
PLCC and DTPC at Kishanganj sub-station had come up for the consideration wherein
the Commission after considering the submissions of the Petitioner as well as taking
note of the Connection Agreement between the Petitioner and PGCIL observed that
DTPC and PLCC at Kishanganj sub-station were under the scope of the Petitioner.
Further, the Commission held that the COD of the transmission lines under the scope
of ATL and issue with respect to DTPC and PLCC at Kishanganj sub-station will be
dealt with in the present Petition.
82. Thus, the Commission, in the aforesaid order, having observed that the issues
with respect to the DTPC and PLCC at Kishanganj sub-station will be dealt with in the
present Petition while dealing with the extension of SCOD and COD of the Petitioner’s
transmission Project, the Petitioner, in our view, cannot be estopped from bringing on
record its submissions with regard to DTPC and PLCC at Kishanganj sub-station as
necessary to determine the issues relating thereto. The rule of amendment is
essentially a rule of justice, equity and good conscience and the power of amendment
should be exercised in the larger interest of doing full and complete justice to the
parties before the Court. It is settled position of law that the Court should allow all the
amendments that may be necessary for determining the real question in controversy
between the parties provided it does not cause injustice or prejudice to the other side.
83. In the present case, besides the order dated 5.5.2022 itself providing for dealing
with the issues of DTPC and PLCC in this case, we find that allowing the Petitioner to
amend the Petition for bringing on record its submissions relating to DTPC & PLCC at
……………………………………………………………………………………………………………
Kishanganj sub-station would enable determination of issues relating to SCOD & COD
of its Element 2 and consequently, the Project as whole. Moreover, allowing such
amendment and dealing the issues relating to DTPC & PLCC in the present Petition
would also serve its dominant purpose that is to minimize the litigation. Insofar as
injustice or prejudice to the other party, PGCIL has sought to argue that by way of the
proposed amendment, the Petitioner is seeking to re-agitate the issues relating to
DTPC & PLCC and review of the Commission’s findings in order dated 5.5.2022, which
are in favour of PGCIL. However, we are not impressed by the aforesaid contention of
PGCIL. Firstly, as rightly pointed out by the Petitioner, such apprehension of PGCIL is
based on presumption of allowing / accepting the contentions of the Petitioner in the
amendment Petition. Furthermore, it is well settled that the merits of the amendments
sought to be incorporated by way of amendments are not be adjudged at the stage of
allowing prayer for amendment and disallowing such amendment based on the
contention of PGCIL that it seeks to re-agitate issue(s) or to challenge the findings as
rendered in order dated 5.5.2022 would amount to adjudging the merits of the
amendment at the stage of allowing the prayer for amendment, which is not
permissible. In view of the foregoing observations, we allow the amendment
applications filed by the Petitioner and proceed to deal with the issue relating to
readiness of Element 2 (Kishanganj-Darbhanga 400 kV D/c line) of the Petitioner’s
Project on merits.
84. The Petitioner has submitted that as per the scope of work as clearly specified
in the TSA, works at Kishanganj S/s except for extending the OPGW cable till the joint
box were not within the Petitioner’s scope and therefore, the execution of the DTPC
and PLCC works at the Kishanganj sub-station, which were beyond the joint box, was
not a legal obligation of the Petitioner. The Petitioner has submitted that it completed
……………………………………………………………………………………………………………
its scope of works in respect of Element 2 before the SCOD and the said element was
ready for charging on 5.3.2019 and it also wrote to all concerned authorities and
declared the deemed COD for Element 2. However, it is only when the PGCIL’s bays
at Kishanganj end were made available by PGCIL on 11.3.2019 and 12.3.2019, the
commercial operation of Element 2 was declared on 14.3.2019 after the successful
completion of trial run. The Petitioner has submitted that insofar as the Connection
Agreement dated 27.2.2019, which provided that the Petitioner is to provide 2 sets of
Fibre Optic Distribution Panel (FODP) and Approach Cable at both ends’, the said
Connection Agreement was executed only at the fag-end of the period demarcated for
achieving the SCOD and that the TSA and Connection Agreement have to be read
harmoniously, so as to mean that the Petitioner was required to provide FODP and
Approach Cable only at Darbhanga sub-station as the works only at Darbhanga sub-
station were included within the Petitioner’s scope of works.
85. The Petitioner further submitted that as per Article 6.1.2 of TSA provides that
RLDC/SLDC or CTU/STU or the Lead LTTC may for reasonable cause, including
failure to arrange for inter-connection facilities, defer the connection for upto 15 days
from the date notified by licensee pursuant to Article 6.1.1 of the TSA if the licensee is
notified in writing, the reason for deferral and when the connection is to be rescheduled
and in such case, the SCOD would be extended as required for such deferments on
day to day basis. The Petitioner has submitted that PGCIL intimation to the Petitioner
on 6.3.2019 about pending test related to DTPC and PLCC for Element 2 ought to be
considered as deferment by PGCIL in compliance of Article 6.1.2 where PGCIL
deferred the connection of Element 2 due to reasonable cause i.e. carrying out PLCC
and DTPC tests and since such deferment was only for a period of 8 days, SCOD
……………………………………………………………………………………………………………
ought to be extended for such deferment period. The Petitioner has submitted that in
Petition No. 677/TT/2020, PGCIL merely contended that the Petitioner’s claim for
deemed commissioning of Element 2 was wrong and did not submit that the delay in
commissioning of its assets was due to delay in completion of works by the Petitioner
and therefore, PGCIL may not be permitted to take contrary stand before the
Commission in the present case. The Petitioner has submitted that, vide emails dated
2.3.2019, 3.3.2019 and 4.3.2019, it kept PGCIL informed that it was ready to charge
Element 2 and was awaiting completion of bays at PGCIL at Kishanganj sub-station.
However, PGCIL for the first time only on 6.3.2019 responded to the Petitioner stating
that PLCC and Kishanganj sub-station was to be completed by the Petitioner. The
Petitioner thereafter took the immediate steps to complete DTPC and PLCC at
Kishagang sub-station by 8.3.2019 and the first time charging approval was granted
by ERLDC on 11.3.2019 and consequently, COD was declared on 14.3.2019. The
Petitioner has submitted that since both PGCIL and the Petitioner have claimed the
COD of their respective assets from 14.3.2019 only, no prejudice will be caused if the
delay of 8 days in COD of Element 2 is condoned.
86. We have considered the submissions made by the parties. We find that the
Petitioner has indeed once again raised the issue regarding the scope of DTPC and
PLCC at Kishanganj sub-station not being in its scope of work as per the TSA and has
also submitted that the provisions of Connection Agreement indicating the installation
of FODP and Approach Cable at Kishanganj sub-station have to be read down in line
with the provisions of TSA so as to mean that the Petitioner was required to provide
the FODP and Approach Cable at Darbhanga sub-station.
……………………………………………………………………………………………………………
87. We may refer to the correspondence exchanged between the parties for the
period leading upto the commissioning of Element of the Petitioner and associated
bays of PGCIL. It is observed that the Petitioner first issued the notice for connection
to the Inter-connection facilities to RLDC, LTTCs as well as CTU/ PGCIL under Article
6.1.1 of TSA on 4.1.2019. The Petitioner thereafter proceeded to obtain the
Energization approval on 21.2.2019 and entered into the Connection Agreement on
27.2.2019, to obtain the First Time Charging (FTC) approvals on 2.3.2019, albeit
ERLDC granted the FTC approval to charge the bays of Darbhanga end only. The
Petitioner vide its e-mails dated 2.3.2019 and 4.3.2019 intimated PGCIL about
readiness of its Element 2 while requesting to provide the exact duration and timeline
for completion of bays within the scope of PGCIL. Further, vide e-mail to ERLDC dated
5.3.2019 the Petitioner again sought approval for First Time Charging/ Commissioning
& Trial Operation of its Kishanganj - Darbhanga 400 kV D/c line citing the imminent
SCOD of the said line on 5.3.2019. Later, the Petitioner vide its e-mail dated 5.3.2019
also proceeded to declare deemed COD of its Element 2 w.e.f 6th March, 2019 at
00:00 Hrs. In response to the above, PGCIL vide its e-mail dated 6.3.2019 pointed out
to the Petitioner that (i) PLCC commissioning at Kishanganj end and also End to End
test, and (ii) Off-line Fault Locator test for defining the healthiness of line, which were
within the scope of the Petitioner, were still pending. Moreover, PGCIL also intimated
that PGCIL is making every effort to charge the said line by 8.3.2019 subject to the
CEA clearance. The relevant extract of the said e-mail reads as under:
“This is in reference to your trailing mail regarding the subject matter. In this regard the
matter has been enquired from our Kishenganj site who have confirmed that the
following test are still pending from M/s KPTL (as per their scope).
1 PLCC Commissioning at Kishanganj end and also END to END test
2 OFF LINE FAULT LOCATOR TEST for defining the healthiness of Line.
……………………………………………………………………………………………………………
Hence claiming that the line is ready in all respect and ready for charging of Line by
00:00 hrs on 06.03 .19 is not true. However, POWERGRID have made every effort to
charge the line by 08.03.2019 subject to CEA clearance.
In view of above M/s KPTL may give their clearance or Time line for completion of above
pending issues and accordingly we will commission our bays which are at final stage of
commissioning.”
88. Thereafter, the Petitioner vide its e-mail dated 8.3.2019 replied that PLCC
installation was successfully completed from its end, however, the End to End test was
not performed owing to non-completion of Jumpering works the Cable Termination of
DTPC in CPR at Kishanganj S/s of PGCIL. The Petitioner accordingly requested for
ensuring the completion of the said activities and to confirm the same for enabling it
to conduct the End-to-End test of PLCC. The Petitioner also informed that the Off-line
Fault Locator Test for defining healthiness of line was successfully completed prior to
declaring its SCOD at 00:00 Hrs. on 6.3.2019. The relevant extract of the said e-mail
reads as under:
“With reference to the trailing mail, we would like to inform that we have already been
declared the readiness for Charging of our Transmission Line and Sub-station’s Bays
(line bays already commissioned) along with L/R at Darbhanga End. Furthermore, we
are apprising your queries pointwise as stated in below mail:-
1. PLCC Commissioning at Kishanganj end and also END to END test: PLCC Installation
is successfully completed from our end, however End-to- End Test not performed owing
to non-completion of Jumpering works and Cable Termination of DTPC in CRP at
Kishanganj Sub-station End of PGCIL. We request to Kishanganj Sub-station for
ensuring the completion of the said activities and confirm the same for enabling us to
conduct the End-to-End Test of PLCC.
2. Off-line Fault Locator Test for defining the healthiness of line: We have successfully
completed the Off-line Fault Locator Test of Line prior to “Declare our Scheduled
Commercial Operations Date (SCOD) of Element-2 of IPTC-Bhutan Project w.e.f. 06th
March, 2019 at 00:00Hrs. [Mid Night between 5th & 6th March’2019]”
89. On very same day, PGCIL vide its e-mail replied that the Cable termination of
DTPC in CRP at Kishanganj S/S, which was within the scope of the Petitioner and not
PGCIL's, was yet to be completed. PGCIL also informed that without carrying out End
to End test, PLCCC cannot be declared as commissioned and that Jumpering work
……………………………………………………………………………………………………………
has already been completed at Kishanganj End and ready for carrying out End to End
test. PGCIL also pointed out that Phase sequence test of both Ckts. with its GIS bays
had not been done and the same was required to be done for safe charging of line.
PGCIL also intimated that bays for Darbhanga lines at Kishanganj S/s have been
completed on 8.3.2019. The relevant extract of the said e-mail reads as under:
“With reference to your trailing mail, the following may please be noted:
i) Cable Termination of DTPC in CRP at Kishanganj Sub-station End is yet to be

completed till date, which is in the scope of M/S KPTL and not in the scope of
POWERGRID. The mail forwarded by M/s KPTL in this regard is attached.
ii) As informed vide trailing mail regarding commissioning of PLCC , please note that
without carrying out End to End test, PLCC cannot be declared as commissioned.
However, It is to inform that Jumpering work has already been completed at Kishenganj
SS and ready for carrying out End to End test. Please advise the concerned to carry out
End to End test.
iii) Phase sequence test of Both the CKTs with Our GIS Bays has not been done, the
same is required to be done for Safe charging of Line, as Mismatch in phase sequence
may damage equipments.
As per our commitment vide our trailing mail, bays for Darbhanga lines at Kishanganj
s/s has been completed on 08.03.2019 and CTU has been requested to issue charging
instruction.
In view of above M/s ATL is once again requested to complete their balance work as
mentioned above at the earliest so as to charge the line by today evening i.e. on
08.03.2019.”
90. Pursuant to the above, the Petitioner has stated that it requested PGCIL for
permission to access of Kishanganj sub-station site and upon having been given the
site access on 9.3.2019, the end-to-end test for PLCC and cable termination works for
DTPC were completed on 10.3.2019, which was confirmed by PGCIL vide e-mail
dated 11.3.2019 while furnishing the requisite data to ERLDC for issuing charging
clearance. Thereafter, on very same date, the first time charging clearance was issued
by ERLDC and Ckt 2 of Element 2 was charged on 11.3.2019 itself and Ckt 1 of
Element 2 was charged on 12.3.2019 and consequently, the Element 2 was declared
……………………………………………………………………………………………………………
under the commercial operation on 14.3.2019 i.e. after 72 hours of charging of
Element 2.
91. As per the TSA, SCOD of the Element 2 was 6.3.2019 against which it
commissioned on 14.3.2019 i.e. with a delay of 9 days. Article 4.1 and 4.2 of the TSA
provides as under:
“Article 4 Development of the Project

4.1 TSP`s obligations in development of the project: Subject to the terms and
conditions of this Agreement, the TSP at its own cost and expense shall
observe, comply with perform, undertake and be responsible:
a. for procuring and maintain in full force and effect all Consents, Clearances
and permits, required in accordance with Law for development of the Project:
b. for financing, constructing, owning and commissioning each of the Element
of the Project for the scope of work set out in Schedule 2 of this Agreement in
accordance with:
i. the Grid Code, the grid connectivity standards applicable to the Transmission
Line and the sub-station as per the Central Electricity Authority (Technical for
Connectivity to the Grid) Regulations, 2007, Central Electricity Authority
(Technical Standards for Constructions for Construction of Electrical Plants and
Electric Lines) Regulations, 2010, Central Electricity Authority (Grid Standards)
Regulations, 2010 and as amended from time to time and following Regulations
as and when notified by CEA:
• Central Electricity Authority (Safety requirements for construction, operation

and maintenance of electrical plants and electric lines) Regulations, 2008
• Central Electricity Authority (Measures relating to Safety and Electric Supply)

Regulations, 2007 ii. Prudent Utility Practices and the Law:
Xxxxxxx
c. for entering into a Connection Agreement with the CTU/STU (as applicable)
in accordance with the Grid Code.
xxxxxx
e. to co-ordinate and liaise with concerned agencies and provide on a timely

basis relevant information with regard to the specifications of the project that
may be required for interconnecting the project with the Interconnection
Facilities;
xxxxxxx
g. to provide to the Long Term Transmission Customers with a copy to CEA, on

a monthly basis, progress reports with regard to the Project and the execution
(in accordance with Agreed Form) to enable the Long Term Transmission
……………………………………………………………………………………………………………
Customers/CEA to monitor and co-ordinate the development of the Project
matching with the Interconnection Facilities. h. to comply with all its obligations
undertaken in its Agreement.
4.2 Long Term Transmission Customers’ obligations in implementation of the

Project: 4.2.1 Subject to the terms and conditions of this Agreement, Long Term
Transmission Customers, at their own cost and expense, undertake to be
responsible:
a. for assisting and supporting the TSP in obtaining the Consents, Clearances
and Permits required for the Project and in obtaining any applicable
concessions for the Project, by providing letters of recommendation to the
concerned Indian Governmental Instrumentality, as may be requested by the
TSP from time to time;
b. for arranging and making available the Interconnection Facilities to enable

the TSP to connect the Project; c. for complying with all their obligations under
this Agreement, and …”
92. Article 4.1 of the TSA deals with TSPs obligations in the development of the
Project. In terms of the Article 4.1(c), the TSP, at its own cost and expense, observe,
perform, comply with, perform, undertake and be responsible for entering into
Connection Agreement with the CTU/STU (as applicable), in accordance with the Grid
Code. Article 4.2 of the TSA provides for the LTTCs obligations in implementation of
the Project, which includes the arranging and making available the interconnection
facilities to enable the TSP to connect to the Project.
93. Article 6.1.2 of TSA dealing with connection with the inter-connection facilities
provides as under:
“6.1. Connection with Inter-Connection Facilities
6.1.1 The TSP shall give the RLDC(s), CTU/STU, as the case may be, the Long Term
Transmission Customers and any other agencies as required at least sixty (60) days
advance written notice of the date on which it intends to connect an Element the Project
which date shall not be earlier than its Scheduled COD or Scheduled COD extended as
per Article 4.4.1 of this Agreement, unless the Lead Long Term Transmission Customer
otherwise agrees.
6.1.2 The RLDC/SLDC (as the case may be) or the CTU/ STU (as the case may be) or
the Lead Long Term Transmission Customer may, for reasonable cause, including
……………………………………………………………………………………………………………
failure to arrange for Interconnection Facilities as per Article 4.2, defer the connection
for upto fifteen (15) days from the date notified by the TSP pursuant to Article 6.1.1 if it
notifies to the TSP in writing, before the date of connection, of the reason for the deferral
and when the connection is to be rescheduled. However, no such deferment on one or
more occasions would be for more than aggregate period of 30 days. Further, the
Scheduled COD would be extended as required, for all such deferments on day for day
basis.”
94. Further, Article 6.2.1 of the TSA provides as under:
“6.2.1 An Element of the Project shall be declared to have achieved COD seventy two
(72) hours following the connection of the Element with the Interconnection Facilities
or seven (7) days after the date on which it is declared by the TSP to be ready for
charging but is not able to be charged for reasons not attributable to the TSP or seven
(7) days after the date of deferment, if any, pursuant to Article 6.1.2:
Provided that an Element shall be declared to have achieved COD only after all the
Element(s), if any, which are pre-required to have achieved COD as defined in
Schedule 3 of this Agreement, have been declared to have achieved their respective
COD.
6.2.2 Once any Element of the Project has been declared to have achieved deemed
COD as per Article 6.2.1 above, such Element of the Project shall be deemed to have
Availability equal to the Target Availability till the actual charging of the Element and to
this extent, shall be eligible for payment of the Monthly Transmission Charges
applicable for such Element.”.
95. As per the above said provisions, an element of the project shall be declared to
have achieved COD 72 hours following the connection of the element with the
interconnection facilities or 7 days after the date on which it is declared by the TSP to
be ready for charging, but is not able to be charged for reasons not attributable to the
TSP.
96. The COD of the 02 numbers 400 kV GIS line bays under the scope of PGCIL
has been approved as 14.3.2019 and the Petitioner has claimed the COD of the
transmission line i.e. 400 kV D/C (Quad) Kishanganj (PG)-Darbhanga line as
14.3.2019. In the instant case, the TSA was signed on 22.9.2015 and the Connection
Agreement was signed on 27.2.2019. As per Connection Agreement dated 27.2.2019
works like DTPC and PLCC at Kishanganj sub-station are part of scope of work of the
……………………………………………………………………………………………………………
Petitioner. PGCIL vide letter dated 6.3.2019 informed about the balance work like
DTPC and PLCC at Kishanganj Sub-station and the Petitioner had sought permission
from PGCIL to access of Kishanganj sub-station site and upon having been given the
site access on 9.3.2019, the end-to-end test for PLCC and cable termination works for
DTPC were completed on 10.3.2019, which was confirmed by PGCIL vide e-mail
dated 11.3.2019 while furnishing the requisite data to ERLDC for issuing charging
clearance. Thereafter, on very same date, the first-time charging clearance was issued
by ERLDC and Ckt 2 of Element 2 was charged on 11.3.2019 itself and Ckt 1 of
Element 2 was charged on 12.3.2019 and consequently, the Element 2 was declared
under the commercial operation on 14.3.2019 i.e. after 72 hours of charging of
Element 2.
97. In terms of the Article 4.1(c), the TSP, at its own cost and expense, observe,
perform, comply with, perform, undertake and be responsible for entering into
Connection Agreement with the CTUIL/STU (as applicable), in accordance with the
provisions of the Grid Code. We find that the declaration of deemed COD by the
Petitioner for Element-2 without completing its scope of works on 6.3.2019 is not valid.
The delay in completion of the asset was on account of the DTPC and PLCC at
Kishanganj sub-station. Hence, we approve the COD of the Element-2 as 14.3.2019.
As the delay in completion of the asset has been found to be on account of the DTPC
and PLCC at Kishanganj sub-station i.e. from 6.3.2019 to 10.3.2019 cannot be
considered as a Force Majeure event as claimed by the Petitioner. After
implementation of connection facilities minimum time of 72 hours was required to
declare the COD of the assets in terms of the Article 6.2.1 of the TSA. Accordingly,
the time taken from 11.3.2019 to 14.3.2019 was beyond the control of the petitioner.
……………………………………………………………………………………………………………
In view of the above, the LLTCs are entitled for liquidated damages for the delay of 5
days for achieving the COD of the Element 2.
98. In view of the foregoing observations, discussions and findings, the Petition
No. 470/MP/2019 stands disposed of.
Sd/- sd/- sd/-

(P.K. Singh) (Arun Goyal) (I.S. Jha)
Member Member Pujari)
Member
……………………………………………………………………………………………………………
CERC Website S. No. 262/2023

470 MP 2019

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CENTRAL ELECTRICITY REGULATORY COMMISSION

Petition No. 470/MP/2019

Date of Order: 23rd June, 2023

In the Matter of:

Petition seeking extension of Scheduled Commercial Operation Date on account of

Alipurduar Transmission Limited,

1. South Bihar Power Distribution Company Limited,

2. West Bengal State Electricity Distribution Company Limited,

3. Manipur State Power Distribution Company Limited,

4. Department of Power, Government of Nagaland,

5. Assam Electricity Grid Corporation Limited,

6. North Bihar Power Distribution Company Limited,

8. Energy and Power Department, Govt. of Sikkim,

9. Jharkhand Bijli Vitran Nigam Limited,

10. Power Grid Corporation of India Limited,

11. Central Transmission Utility of India Limited,

12. REC Transmission Projects Company Limited,

of Scheduled Commercial Date of Operation (“SCOD”) i.e. 6.3.2019, on account of

made the following prayers:

(a) Admit the present Petition;

2. The Petitioner is a fully owned subsidiary of Kalpatru Power Transmission

comprising the following elements:

Sub-station Extn: 38 months

- 80 MVAr switchable line reactors (with 400-

issued by RECTPCL to KPTL on 29.10.2015. In accordance with the bidding documents,

22.3.2016 in Petition No.4/ADP/2016 adopted the transmission charges of the Petitioner.

Submissions by the Petitioner

4. The Petitioner has submitted that Element-2 of the Project achieved

commercial operation on 14.3.2019. However, Element-1 of the project has achieved

commercial operation 20.1.2020 due to the following force majeure events:

(b) Delay of 1001 days in obtaining statutory clearances with respect to

directed to submit the information regarding (a) details of commissioning, COD of

of the TSA dated 22.9.2015 and PERT/CPM/Gantt Chart of the project.

which includes the updated PERT/CPM/Gantt chart of the Project.

470/MP/2019 is finally decided by the Commission.

Reply of Respondent Nos. 1 and 6

(f) The Petitioner’s request for return of the Contract Performance

Rejoinder to the reply of Bihar Discoms

(c) The interpretation as to ‘floods’ being in excess of statistical measures

(e) The declaration of commercial operation of the respective elements, has

(f) The ‘commercial operation’ of the Transmission Project is linked to 72

(h) It is a settled position of law that a contracting party is entitled to cost

Hearing Dated 21.4.2022

of the Petitioner’s Project, if any.

dated 12.7.2022, has submitted as under:

(f) The Commission recently after considering similar submissions in

(a) The Petitioner suffered ‘Force Majeure Events’ while constructing

(b) As regards Element 2, the delay in commissioning of Element 2 was

IA No. 46/IA/2020 dated 14.7.2022

seeking amendment of pleadings along with incorporation of the following prayers:

677/TT/2020 raising erroneous contentions regarding scope of work of the Petitioner

IA have been dealt with in succeeding paragraphs of this order.

Hearing Dated 15.7.2022

Petition and has submitted as under:

(a) By filing the amendment application, the Petitioner is seeking to

(c) The basic principles to be taken into consideration while allowing or

Response to the objections filed by PGCIL

Pleadings) as well as Regulation 114 of CERC (Conduct of Business) Regulations,