HIMACHAL PRADESH POWER TRANSMISSION CORPORATION LIMITED vs CENTRAL ELECTRICITY REGULATORY COMMISSION & Ors

Judgement in Appeal No. 300 of 2022
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
(Appellate Jurisdiction)
APPEAL No. 300 OF 2022
Dated: 22.07. 2026
Present: Hon`ble Ms. Seema Gupta, Officiating Chairperson
Hon`ble Mr. Virender Bhat, Judicial Member
IN THE MATTER OF:
HIMACHAL PRADESH POWER TRANSMISSION CORPORATION LIMITED
Through — DGM(C&M)
HIMFED Bhawan, Panjari,
Shimla-171005. … Appellant(s)
VERSUS
1. CENTRAL ELECTRICITY REGULATORY COMMISSION
Through Secretary ,
rd th
3 & 4 Floor, Chanderlok building,
36, Janpath, New Delhi-110001.
2. POWER GRID CORPORATION OF INDIA LTD.,
Institutional Area,
Katwaria Sarai, New Delhi-110016.
Corporate Centre : ‘Saudamini’, Plot No.-2,
Sector-29,
Gurugaon-122 001 (Haryana)
3. HIMACHAL PRADESH STATE ELECTRICITY BOARD,
Represented by its Chairman,
Vidyut Bhawan,
Kumar House Complex Building,
Shimla-171 004.
4. RAJASTHAN RAJYA VIDYUT PRASARN NIGAM LIMITED
Represented by its Chairman,
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Judgement in Appeal No. 300 of 2022
Vidyut Bhawan, Vidyut Marg,
Jaipur-302005.
5. AJMER VIDYUT VITRAN NIGAM LTD.
Represented by its Managing Director
400 KV GSS Building (Ground Floor),
Ajmer Road, Heerapura, Jaipur – 302 006.
6. JAIPUR VIDYUT VITRAN NIGAM LTD.
Represented by its Managing Director
400 KV GSS Building (Ground Floor),
Ajmer Road, Heerapura, Jaipur – 302 006.
7. JODHPUR VIDYUT VITRAN NIGAM LTD
Represented by its Managing Director
400 IN GSS Building (Ground Floor),
Ajmer Road, Heerapura,
Jaipur-302006
8. PUNJAB STATE ELECTRICITY BOARD
Represented by its Chairman
The Mall,
Patiala-147 001.
9. HARYANA POWER PURCHASE CENTRE
Represented by its S.E./C&R-1
Shakti Bhawan, Sector-6
Panchkula (Haryana)-134 109
10. POWER DEVELOPMENT DEPTT.
Govt. of Jammu & Kashmir,
Mini Secretariat,
Jammu – 180001.
11. UTTAR PRADESH POWER CORPORATION LTD.
Represented by its Chairman
(Formerly Uttar Pradesh State Electricity Board)
Shakti Bhawan,
14, Ashok Marg,
Lulcknow-226001.
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Judgement in Appeal No. 300 of 2022
12. DELHI TRANSCO LIMITED,
Shakti Sadan Building, Kotla Road,
New Delhi – 110002.
13. BSES YAMUNA POWER LIMITED,
Represented by its CEO,
Shakti Kiran Building,
Karkardooma,
Delhi – 110092.
14. BSES RAJDHANI POWER LIMITED,
Represented by its CEO,
BSES Bhawan, Nehru Place,
New Delhi – 110 019.
15. NORTH DELHI POWER LTD,
Represented by its CEO,
Power Trading and Load Dispatch Group,
Cennet Building, Pitampura,
New Delhi – 110 034.
16. CHANDIGARH ADMINISTRATION,
Sector-9, Chandigarh
Represented by its chief engineer,
17. UTTARAKHAND POWER CORPORATION LIMITED,
Urja Bhawan, Kanwali Road, Dehradun
Represented by its Managing Director,
18 NORTH CENTRAL RAILWAY,
Allahabad,
Represented by its Chief Electrical Distribution
Engineer,
19. NEW DELHI MUNICIPAL COUNCIL,
Palika Kendra, Sansad Marg,
New Delhi-110002.
Represented by its Chairmen ,
20. THE CENTRAL TRANSMISSION UTILITY
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Judgement in Appeal No. 300 of 2022
OF INDIA LIMITED,
Through its Chairman
Floor No.5-10, Tower 1, Plot No.16,
IRCON International Tower,
Institutional Area, Sector-32, Gurugram,
Haryana -122 001.
…. Respondents
Counsel on record for the Appellant(s) : Mr. Tushar Mathur
Mr. Samir Malik
Ms. Rimali Batra
Ms. Nikita Choukse
Mr. Mahip Singh
Sikarwar
Ms. Iti Agarwal
Ms. Divya Anand
Mr. Mr. Paritosh Goel
for App. 1
Counsel on record for the Respondent(s) : Mr. Sri Venkatesh
Mr. Bharat Gangadhan
Mr. Ashutosh Kumar Srivatava
Mr. Nihal Bhardwaj
Mr. Siddhrarth Nigotia
Mr. Shivam Kumar
Mr. Kartikay Trivedi
Mr. Aashwyn Singh
Mr. Punyam Bhutani
Mr. Suhael Buttan
Mr. Siddhrarth Joshi
Ms. Himangi Kapoor
Mr. Vineet Kumar
Mr. Nikunj Bhatnagar
Mr Aayush Sinha
Mr. Harsh Vardhan
Mr. Aditya Vardhan Sharma
Mr. Anant Singh Ubeja
Mr. Abhishek Nangia
Mr. Kunal Veer Chopra
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Judgement in Appeal No. 300 of 2022
Mr. Nehal Jain
Mr. Vedant Choudhary
Mr. Mohit Gupta for Res.2
Ms. Sangeeta Bharti
Mr. Sushil Kumar Singh
Mr. Ashish Kumar
Mr. Rameezudin Raja
Ms. Anuba Dhulia
Ms. Mehak Kanwar for Res.12
Mr. Mohit K. Mudgal
Ms. Sanya Sud
Mr. Sachin Dubey
Mr. Anjani Kumar Rai for Res.13
Mr. Raj Bahadur Sharma for Res.14
Mr. Alok Shankar
Mr. Kumarjeet Ray for Res. 20
JUDGEMENT
PER HON’BLE MRS. SEEMA GUPTA, OFFICIATING CHAIRPERSON
1. The captioned Appeal No. 300 of 2022 has been filed by Himachal Pradesh
Power Transmission Corporation Limited (hereinafter referred to as
“ Appellant”/“HPPTCL ”), under Section 111 of the Electricity Act, 2003,
challenging the Order dated 21.11.2019 passed by the Central Electricity
Regulatory Commission (hereinafter referred to as “CERC”/“Central
Commission”) in Petition No. 158/TT/2018 (“Impugned Order”) filed by
Respondent No 2 for determination of Transmission Tariff treating 31.03.2019 as
commercial Operation date (COD) for various assets under the scheme ‘
Augmentation of Transformers in Northern Region – Part B.
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Judgement in Appeal No. 300 of 2022
2. The Appellant herein, the Himachal Pradesh Power Transmission
Corporation Limited (“ HPPTCL ”), is a State Transmission Utility who is entrusted
with the development of reliable intra-state transmission network in the state of
Himachal Pradesh.
3. Respondent No. 1 is the Central Electricity Regulatory Commission
(“ CERC ”), constituted under Section 76 of the Electricity Act, 2003 ("the Act") and
is exercising jurisdiction and discharging functions in accordance with the
Electricity Act 2003. Respondent No. 2 is Power Grid Corporation of India Limited
(“POWERGRID ”), the inter-State Transmission utility of the Country and was also
designated as Central Transmission Utility (CTU). Respondent Nos. 3 to 20 are
the distribution licensees, State transmission utilities, and other long-term
beneficiaries of the Northern Region who are parties to the sharing of
transmission charges.
4. Respondent No. 2- POWERGRID, was entrusted with the implementing
the transmission scheme namely "Augmentation of Transformers in Northern
Region—Part B" in which augmentation of 315 MVA ( 3 x105)400/200 kV
transformer at Hamirpur (PG) substation along with 2 no of 220 kV line bays was
included. POWERGRID filed the tariff petition 158/TT/2018 and sought deemed
COD of the 2 nos 220 kV line bays at Hamirpur ( Asset 2) as 31.03.2019 in terms
of the proviso ii of Regulation 4(3) of the 2014 tariff Regulation, as same were
charged on no load because of non-availability of downstream network of
HPPTCL.
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Judgement in Appeal No. 300 of 2022
5. CERC passed the Impugned Order on 21.11.2019 in which liability of
payment of Transmission charges for 220 kV bays at Hamirpur (Asset 2 ) from
31.03.2019 till commissioning of associated 220 kV transmission system under
the scope of HPPTCL was entrusted upon HPPTCL and held as under
“25. It is seen from the above that the requirement of 2 no 220 kV line bays
at Hamirpur and Jallandhar was agreed in meetings of standing committee,
TCC and NRPC. Further, it is observed that in the 22nd meeting of TCC and
25th meeting of NRPC held on 23rd and 24th February, 2012 the
representative of PSTCL and HPPTCL were present and agreed for 220 kV
line bays at Hamirpur and Jallandhar Sub-stations. Therefore, the contention
of the HPPTCL and PSTCL is not justified that at no point of time they have
agreed for additional bays at Hamirpur and Jallandhar Sub-station
respectively. Based on the above, we approve COD of Asset-2 and Asset-3
as 31.3.2019 and 25.3.2019 respectively under proviso (ii) of Regulation 4(3)
of the 2014 Tariff Regulations, 2014.
……
26. In view of the above, the transmission charges for Asset-2 from 31.3.2019
till commissioning of the associated 220 kV transmission system under the
scope of HPPTCL shall be borne by HPPTCL and thereafter, shall be
recovered under provisions of Sharing Regulations. Similarly, the
transmission charges for Asset-3 from 25.3.2019 till commissioning of the
associated 220 kV transmission system under the scope of PSTCL shall be
borne by PSTCL and thereafter, shall be recovered under provisions of
Sharing Regulations.”
6. Aggrieved by such findings in the Impugned Order, HPPTCL has preferred
the present appeal.
ANALYSIS AND DISCUSSION
7. Heard Mr Tushar Mathur learned counsel appearing on behalf of Appellant
and Mr Shri Venkatesh, learned counsel appearing on behalf of Respondent No
2, Perused Impugned Order, written submissions filed by the parties and other
documents on record. The various issues are deliberated in following paragraphs:
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Judgement in Appeal No. 300 of 2022
SUBMISSIONS URGED ON BEHALF OF APPELLANT- HPPTCL
8. The Appellant contends that the Central Commission failed to appreciate
th
its submissions in their proper factual and legal context. In the 30 Standing
Committee Meeting on Power System Planning (19.12.2011), approval was
granted for four 220 kV line bays at Hamirpur—two for Kangoo and two for
proposed Palampur substation. It was specifically recorded that the additional two
bays at Hamirpur, which form the subject matter of the present Appeal, were to
be constructed only upon a request being made by the State Transmission Utility
(“STU”), namely HPPTCL, with an advance intimation of at least two years; a
position consistently reiterated in the 22nd TCC and 25th NRPC meetings in
February 2012. The Appellant’s stand was never that the bays were unnecessary,
but that their construction and commissioning was conditional and required
synchronization with the Hamirpur–Dehan line.
9. The Impugned Order, however, erroneously assumed that the Appellant
had agreed to immediate construction of the additional bays irrespective of the
stipulated precondition. Further, the Central Commission conflated the distinct
positions of PSTCL and HPPTCL—while PSTCL never requisitioned bays at all,
HPPTCL only insisted on adherence to the agreed conditionality. By intermingling
these submissions, the Commission wrongly concluded that there existed an
unconditional agreement requiring simultaneous commissioning of assets and,
on that basis, fastened liability upon HPPTCL.
10. The Impugned Order, insofar as it fastened identical liability upon PSTCL
along with HPPTCL, was challenged by PSTCL before this Tribunal in Appeal
No. 109 of 2021 titled PSTCL v. CERC & Ors . The very reasoning adopted by
CERC in the Impugned Order, on the basis of which liability has been fastened
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Judgement in Appeal No. 300 of 2022
upon both PSTCL and HPPTCL has been held to be erroneous and has been set
aside by this Tribunal in the judgement dated 15.09.2022 passed in Appeal No
109 of 2021. In the said judgment, this Tribunal held that the minutes of meetings
and deliberations of the Standing Committee, heavily relied upon by
POWERGRID and the Central Commission, could not be construed as
constituting a binding contractual agreement between the parties and that, in the
absence of any contractual arrangement or binding agreement, the concerned
State Transmission Utility, not being the beneficiary of the transmission system in
question, could not have been saddled with transmission charges merely on the
basis of an alleged mismatch in commissioning schedules. These findings strike
at the very foundation of the reasoning adopted by CERC in the Impugned Order,
inasmuch as the entire premise on which liability came to be imposed upon both
PSTCL and HPPTCL was that the parties had allegedly “agreed” in the Standing
Committee Meetings to commission their respective assets in a matching manner
and that any mismatch in commissioning would automatically attract liability upon
the concerned STU.
11. The only factual distinction between the cases of PSTCL and HPPTCL is
that, whereas PSTCL had never requested the bays in question, HPPTCL had
merely acknowledged that it would intimate POWERGRID at least two years in
advance whenever the requirement for such bays arose; however, admittedly, no
such intimation was ever furnished by the Appellant-HPPTCL to Respondent
No.2-POWERGRID. Despite the absence of any requisition or advance
intimation from, Respondent No.2-POWERGRID proceeded to undertake
construction of the concerned line bays and it was only when the construction
activity had already reached an advanced stage that the Appellant was informed
by Respondent No.2-POWERGRID vide letter dated 18.10.2017 that the bays
were likely to be completed by December 2017. Appellant, vide its letter dated
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Judgement in Appeal No. 300 of 2022
14.11.2017, categorically informed POWERGRID that the process for execution
of the Hamirpur–Dehan Line had not even commenced and that the award of
contract itself was yet to be undertaken, and accordingly indicated that the
anticipated timeline for commissioning of the line would be December 2019, i.e.,
approximately two years thereafter.
12. The Appellant contends that there exists no contractual relationship
whatsoever between Respondent No.2-POWERGRID and the Appellant-
HPPTCL governing the commissioning timelines of the respective assets, and no
agreement, contract, implementation arrangement, or any other binding
document was ever executed between the parties requiring the Appellant-
HPPTCL to commission the Hamirpur–Dehan Line in synchronization with the
COD of the 220 kV bays being constructed by POWERGRID. The liability
imposed by the Commission is thus not founded upon any contractual stipulation,
but rather on a generalized invocation of the so-called “defaulting entity pays”
principle. However, even assuming, without admitting, that such a principle could
at all be invoked in the present facts, the Impugned Order completely fails to
undertake any fair or objective examination as to who is the actual “defaulting
entity” in the present case. The Impugned Order proceeds entirely on the
assumption that HPPTCL alone was responsible for the mismatch in
commissioning, while completely overlooking the conduct and defaults
attributable to POWERGRID itself, including the fact that POWERGRID had
proceeded to implement and construct the bays without any prior requisition from
HPPTCL, without any advance coordination, and without any communication
whatsoever regarding commencement of the works.
13. It is further contended that Regulation 6.3A (4) of the IEGC, 2010 (Fourth
Amendment, effective 29.04.2016) mandated execution of an Implementation
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Judgement in Appeal No. 300 of 2022
Agreement between transmission licensees to provide for matching
commissioning schedules, obligations, and consequences of mismatch.
POWERGRID, despite being fully aware of this requirement, proceeded without
entering into any IA with HPPTCL, in disregard of the binding regulatory
framework. The aforesaid amendment had already come into force in the year
2016, much prior to the revised cost estimate and investment approval being
obtained by POWERGRID for the concerned bays on 31.03.2017.
14. The significance and necessity of an Implementation Agreement in cases
involving matching commissioning obligations and the consequences of
mismatch has repeatedly been emphasized by this Tribunal in various
Judgments, particularly the Judgment dated 27.03.2017 passed in Appeal No.
390 of 2017, titled “ PSCPL v. Patran Transmission Co. Ltd. & Ors .”, wherein
this Tribunal recognized that liabilities arising out of mismatch in commissioning
must necessarily flow from a defined contractual or statutory framework
governing the rights and obligations of the parties. The legal consequence of
such a statutory contract is that obligations arising thereunder attain a degree of
certainty and enforceability distinct from ordinary contractual arrangements, and
it is settled position of law that defences such as frustration, impossibility under
Section 56 of the Indian Contract Act, 1872, and general pleas of force majeure
have limited applicability to statutory contracts. In this regard, reliance is placed
upon the Judgment Hon’ble Supreme Court in Mary v. State of Kerala (2014) 14
SCC 272, wherein it has been held that obligations arising under statutory
contracts stand on a distinct legal footing.
15. The Appellant placed reliance the judgement in on NRSS XXXI (B)
Transmission Ltd. v. CERC (Judgment dated 14.09.2020), wherein it was held
that mismatch liability is compensatory and cannot be imposed without
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Judgement in Appeal No. 300 of 2022
contractual breach. In the present case, POWERGRID itself failed to comply with
the mandatory requirement of executing an IA, yet sought to impose
damages-based liability upon HPPTCL while avoiding the contractual discipline
contemplated under the Regulations. The Impugned Order, by fastening liability
solely upon HPPTCL without examining POWERGRID’s defaults, is arbitrary,
contrary to settled legal principles, and unsustainable.
SUBMISSIONS URGED ON BEHALF OF RESPONDENT No 2 and
Respondent No 20 i.e. POWERGRID & CTUIL
16. It is submitted that, the Ccontention of HPPTCL that since no agreement or
correspondence existed between HPPTCL and POWERGRID in relation to the
subject asset, it is not liable to pay its transmission charges from 31.03.2019 till
the actual COD of the downstream network, namely the Hamirpur–Dehan Line is
untenable. The Appellant’s contention that POWERGRID was required to
implement the subject transmission assets only upon receipt of a communication
from HPPTCL issued two years in advance is also wholly incorrect. The Agenda
for the 30th Meeting of the Standing Committee on Power System Planning of
Northern Region specifically included, as one of its agenda items, augmentation
of transformation capacity and provision of additional 220 kV line bays at various
substations in the Northern Region, including substation located in Himachal
Pradesh. Para 3(d) of the said Agenda expressly recorded the proposal for
provision of 2 nos. of 220 kV line bays at Hamirpur Sub-Station for evacuation of
power pertaining to HPPTCL. A plain reading of the Agenda demonstrates that a
total of 28 nos. of 220 kV line bays were proposed across 8 substations in the
Northern Region. Thereafter, the aforesaid agenda item was deliberated upon in
the 30th Meeting of the Standing Committee on Power System Planning of
Northern Region held on 19.12.2011, wherein, out of the proposed 28 nos. of line
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Judgement in Appeal No. 300 of 2022
bays, implementation of only 4 nos. of 220 kV line bays was agreed upon,
comprising 2 nos. of 220 kV line bays at Jallandhar and 2 nos. of 220 kV line bays
at Hamirpur. In respect of the remaining 24 nos. of line bays, it was agreed that
the same would be provided in future based upon the requirement of the
concerned STUs, subject to communication being issued two years in advance.
Thus, a conjoint reading of the Agenda and the Minutes of the 30th Standing
Committee Meeting unequivocally establishes that the parties had specifically
discussed, deliberated upon and agreed to the implementation of Asset-2 ( 2 nos
220 kV bays at Hamirpur ), and that the stipulation regarding issuance of
communication two years in advance pertained only to the balance 24 nos. of line
bays proposed for future implementation depending upon subsequent
requirements of the concerned STUs. The said condition was never made
applicable to the already agreed and approved 2 nos. of 220 kV line bays at
Hamirpur.
17. The matter was thereafter deliberated in the 22nd TCC Meeting dated
23.02.2012 and the 25th NRPC Meeting dated 24.02.2012, wherein HPPTCL,
after detailed deliberations, agreed to the requirement of the said 2 nos. 220 kV
line bays at Hamirpur Substation. The aforesaid meetings clearly demonstrate
that Asset-2 was undertaken pursuant to the request and concurrence of
HPPTCL and with its full knowledge, especially since HPPTCL was represented
in all such meetings and never disputed having sought the Subject Asset.
Thereafter, vide letter dated 18.10.2017, POWERGRID informed HPPTCL that
construction of Asset-2 had reached an advanced stage of implementation and
requested HPPTCL to ensure readiness of the corresponding downstream 220
kV transmission lines to match commissioning of the bays. HPPTCL’s contention
that its letter to POWERGRID, dated 14.11.2017 was merely informational is
incorrect. HPPTCL has categorically recorded that it had initiated the process for
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Judgement in Appeal No. 300 of 2022
execution of the Hamirpur–Dehan Line, including tendering activities, and had
indicated a commissioning timeline of December 2019. Additionally, the
Investment Approvals dated 27.03.2014 and 31.03.2017 concerning the Subject
Asset were also marked to HPPTCL. Further, during the 40th Standing
Committee Meeting held on 22.06.2018, HPPTCL itself acknowledged that the
Hamirpur–Dehan Line had not yet been commissioned and stated that the same
was expected to be commissioned by April 2020.
18. It is submitted that the liability in the present case does not arise solely from
a bilateral contract, but emanates from the statutory and regulatory framework,
including the planning process, approvals, concurrence accorded in the
SCM/TCC/NRPC meetings, approval under Section 68 of the Electricity Act,
2003, and the settled regulatory principle that the entity due to whose
downstream delay the transmission element cannot be put to regular use must
bear the corresponding transmission charges. Accordingly, HPPTCL is liable for
the said transmission charges.
19. The Appellant has erroneously relied upon the Judgment of this Tribunal in
Appeal No. 109/2021 “PSTCL v CERC &Ors”. to contend that transmission
charges cannot be levied upon it. The factual matrix in the present case is entirely
distinguishable from the case concerning PSTCL, wherein PSTCL had neither
sought nor required the transmission asset and had consistently objected to the
same. In contrast, the Appellant-HPPTCL had itself sought the requirement of
bays at Hamirpur Substation during the 30th Standing Committee Meeting and
thereafter continued to participate in subsequent planning deliberations without
raising any objection whatsoever. In the said judgment, this Tribunal reiterated
the settled principle that transmission charges have to be paid by the entity
because of whom the asset could not be put to use and accordingly, the
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Judgement in Appeal No. 300 of 2022
transmission charges were directed to be paid by the PSPCL, instead of Punjab
State Transmission Corporation Limited (“PSTCL”). It is settled law that statutory
committee decisions are binding and the transmission charges has to be borne
by the defaulting entity due to which the transmission system was not put to use.
The perusal of various Minutes of Meetings of the Standing Committee, TCC and
NRPC, as well as the HPPTCL’s own Letter dated 14.11.2017, clearly establishes
that the responsibility for execution of the Hamirpur–Dehan Line rested upon
HPPTCL. HPPTCL, in its reply before the CERC, has itself admitted that it was
undertaking works for completion of the said line. Since Asset-2 of POWERGRID
could not be put to use due to the delay/non-availability of HPPTCL’s downstream
system, HPPTCL is liable to bear the transmission charges irrespective of the
absence of any bilateral contractual relationship between the parties.
20. The HPPTCL’s contention referring to 3rd Proviso to Regulation 6.3A(4)
of the IEGC, 2010 (4th Amendment), that POWERGRID ought to have executed
an implementation agreement was strongly refuted by Respondent No 2; firstly
this contention were neither pleaded nor urged either during the tariff
proceedings or in the present Appeal and, therefore, HPPTCL cannot be
permitted to enlarge the scope of the Appeal at this stage. Without prejudice
thereto, the HPPTCL’s reliance on the aforesaid proviso is wholly erroneous. The
4th Amendment to the IEGC, 2010 was introduced only on 06.04.2016, whereas
th
the Subject Asset had already been agreed upon in the 30 SCM held on
19.12.2011 and, therefore, the said Regulation has no application to the present
case. Even otherwise, the provision merely requires the licensee to “endeavour”
to match the commissioning of its asset “as far as practicable” and is thus
facilitative and directory in nature. The said provision cannot be interpreted in a
manner that would nullify or override Regulation 4(3) of the Tariff Regulations,
2014. In this regard, reliance is placed upon the judgment of the Hon’ble Supreme
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Judgement in Appeal No. 300 of 2022
Court in “ Rajya Bhumi Vikas Bank Samiti State of Bihar v. Bihar Rajya Bhumi
Vikas Bank Samiti” (2018) 9 SCC 472. It is also pertinent to mention that
HPPTCL itself never made any attempt to enter into any such implementation
agreement. Having actively participated in the planning process, acknowledged
the execution of its downstream system, and admitted delay in commissioning of
the Hamirpur–Dehan Line, HPPTCL cannot now seek to rely upon the alleged
non-execution of an implementation agreement in an attempt to evade or avoid
its liability.
21. Learned counsel for the Respondent No.20 contended that this Tribunal, in
“ Bhopal Dhule Transmission Company Limited vs CERC & Ors”(Appeal
No.2017 of 2018) , while relying upon the previous judgments of this Tribunal as
well as the Supreme Court Judgements, held that a transmission licensee which
has commissioned its asset is entitled to tariff from the date of commissioning;
however, such tariff cannot be recovered from the PoC pool of ISTS beneficiaries
prior to the asset being charged and put to regular service. This Tribunal further
held that the liability to pay transmission charges would fall upon the entity
responsible for construction of the downstream asset required for ensuring
regular service of the asset in respect whereof tariff is claimed, and that such
liability for the period of mismatch in commissioning is not dependent upon the
existence of any contractual arrangement between the parties.
OUR CONSIDERATION
22. There is no denial on the part of the Appellant that subject asset was
required by them for termination of Hamirpur – Dehan 220 kV line, however it is
contended that in terms of minutes of Standing committee meeting, Appellant was
to inform the requirement two years in advance to POWERGRID so that
Commissioning schedule of 220 kV line being constructed by them could be
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Judgement in Appeal No. 300 of 2022
matched with the time line of subject 220 kV bays as well as POWERGRID was
required to sign Implementation agreement in terms of IEGC. It would be of
relevance to note the sequence of events leadings to finalization of subject 2 nos
of 220 kV bays at Hamirpur.
th
Additional Agenda item for 30 Standing Committee on Power System
th
Planning for Northern Regulation to be held on 19/12/2011 ( 30 SCM)
23. Agenda No 3, proposes the “Augmentation of Transformation Capacity and
provision of 220 kV bays in Northern Region” in which under point d along with
rd
transformers at other locations, additional 3 transformer of 315 MVA was
proposed for Hamirpur substation along with 2 no of 220 kV Bays as quoted
hereunder:
d) Requirement of 400/220 kV ICT at other locations …………
400kV S/s Trf
Capacity
Mw
loading
%
loading
Remarks Aug.
proposed
220kV
Line bays
to be
provided
Hamirpur 2X315 421 73% Under outage of
one trf.
Remaining
315MVA trf. gets
loaded to 332
MW
1X315
MVA
(3X105
MVA
Single
Phase)
2 nos.
th
Minutes of 30 Standing Committee on Power System Planning for
th
Northern Regulation held on 19/12/2011 ( 30 SCM);
The relevant portion which records the discussion and agreement with regard to
Hamirpur is extracted below :
“6. Connectivity of Hamirpur (Mattansidh) 220/132kV S/s of HPSEB
with Hamirpur 400/220kV S/s of POWERGRID
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Judgement in Appeal No. 300 of 2022
Director (SP&PA), CEA informed that HPSEB Ltd. had proposed
to construct 220kV D/c line from Hamirpur (PG) substation to their
existing 220 kV Hamirpur (Mattansidh) S/s and the existing 220kV D/c
Jullandhar Hamirpur (HPSEB) (ISTS) line be connected to Hamipur
(PG) substation. HPPTCL representative informed that the distance
from Hamirpur (HPSEB) to 400/220 kV Hamirpur(PG) substation is
about 4 km.
POWERGRID representative stated that the above proposal was
equivalent to LILO of Jullandhar – Hamirpur (HPSEB) 220 kV D/c
(ISTS) line at 400/220 kV Hamirpur(PG) substation. POWERGRID also
informed that 400/220 kV Hamirpur(PG) Substation & LILO of one
circuit of Parbati Pooling station - Amritsar 400 kV D/c line at
Hamirpur(PG) were already under construction as a part of NRSS-XX
scheme and the 220 kV connectivity at this substation was urgently
required for stable/reliable operation of the Parbati Pooling - Hamirpur-
Amritsar 400 kV line as well as for effective utilization of Hamirpur
400/220 kV substation. He proposed to take up the works of LILO of
220kV Julandhar-Hamirpur D/e at Hamirpur (PG) S/s, as an ISTS
scheme as the existing Jullandhar – Hamirpur 220 kV D/c line was an
ISTS line.
Considering the urgency of work and the scope being very small,
it was agreed that the above works might be carried out by
POWERGRID as a part of some on-going scheme.
It was further informed that HPPTCL requested for four 220 kV
line bays at Hamirpur 400/220 kV substation i.e. two for connecting their
Kangoo S/s and two for connecting their proposed substation at
Palampur. POWERGRID representative intimated that 6 nos. of line
bays were already being provided at 400/220 kV Hamirpur(PG)
substation, Out of these, 4 bays shall be utilized for LILO of 220 kV
Jullandhar - Hamirpur D/c line and two bays could be provided for
interconnection of proposed Kangoo S/s (HPSEB). The additional two
nos. of 220 bays could be considered in future when required,
POWERGRID requested HPPTCL to expedite the 220kV D/c
interconnection from Hamirpur 400/220 kV substation.”
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24. We have been informed that Palampur and Dehan are same substation and
accordingly used interchangeably. The discussion and agreements with regard
to additional agenda items were recorded separately in the same minutes of
meeting and with regard to requirement of additional ICTs as per FY 2016-17
studies following is noted :
“d) Requirement of 400/220 kV ICTs at other locations as per 2016-17
studies
In addition to above, studies have been carried out in the time frame of
2016-17 to work out the requirement of ICTs at other locations also. From the
studies requirement of augmentation of ICTs has been observed at various
locations in Northern region. After detailed deliberations following transformer
augmentation capacity, in addition to above was agreed:
400 V S/s Aug.
proposed
220 kV Line bays to
be provided
Samba 3x105 MVA --
Gurgaon 1x500 MVA --
Mandaula 1x500 MVA --
Hamirpur 3x105 MVA 2 nos
Jallandhar 1x500 MVA 2 nos
Panchkula Zx500 MVA --
It was also agreed that 220 kV bays would be provided as per the
requirement of, STU. It was decided that respective STU would inform its
requirement of 220 kv bays to POWERGRID at least 2 years in advance.
Members agreed to the above proposal”
25. A conjoint reading of the minutes of the 30th Standing Committee meeting
and the additional agenda item discussed therein, it emerges that at Hamirpur
(PG) ISTS substation, two (2) units of 315 MVA transformation capacity along
with six (6) numbers of 220 kV bays were envisaged. Out of these, four (4) bays
were required by POWERGRID for implementation of the LILO of Jalandhar–
Hamirpur 220 kV line under ISTS, which was duly agreed. In addition, HPPTCL
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Judgement in Appeal No. 300 of 2022
sought four bays, namely, two for connecting its Kangoo substation and two for
th
its proposed Palampur (Dehan) substation. It was agreed in the 30 SCM (main
agenda MOM) that the balance two 220 kV bays out of the six 220 kV would be
provided for Kangoo, while the additional two bays for Palampur as sought by
HPPTCL would be considered subsequently.
26. Further, under the Minutes pertaining to the Additional Agenda Item, the
Standing Committee also agreed to augment the Hamirpur (PG) ISTS Substation
by another 315 MVA transformation capacity along with two numbers of 220 kV
bays. Basis the stipulation recorded at the foot of the table—that 220 kV bays
would be provided as per requirement of the STU, subject to intimation two years
in advance, the Appellant has contended that, since no intimation regarding the
implementation timeline of the bays was provided by them, liability for its
transmission charges cannot be fastened upon it for the mismatch.
27. This contention, though seemingly attractive at first blush, does not
withstand scrutiny. The record clearly demonstrates that HPPTCL itself requested
th
four bays, including two for Palampur (Dehan), as recorded in the MOM of 30
SCM as part of the discussion of the main agenda as noted above. Therefore,
had eight 220 kV bays were available at Hamirpur 400/200 kV (PG) ISTS
substation under the original scheme, the 220 kV bays requirement at Hamirpur
for connecting to Palampur (Dehan), as sought by HPPTCL would have been
accommodated therein. Thus, the requirement of 220 kV bays for Hamirpur -
Palampur( Dehan)220 kV double circuit line seems to be crystallized in the same
meeting and does not seem to be contingent upon subsequent intimation.
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Judgement in Appeal No. 300 of 2022
th
25 Meeting of Northern Region Power Committee (NRPC) held on
23.02.2012 & 24.02.2012
28. The record of proceedings demonstrates that the new proposals agreed in
the 30th Standing Committee Meeting were thereafter placed before the 22nd
Meeting of the Technical Coordination Committee (TCC) and the 25th Meeting of
the Northern Region Power Committee (NRPC) held on 23.02.2012 and
24.02.2012 respectively. Under Head D (items for NRPC only), and specifically
under D1(xv), the approval concerning “Transformation Augmentation in Northern
Region: Part B” was noted. The approved Transformation augmentation is
extracted hereunder:
Sl.No. Substation Transformation Capacity (MVA)
Existing Proposed
Transformation Augmentation in Northern Region : Part - B
9 Samba 7x105 (1ph) 3x105 (1ph)
10 Gurgaon 2x315 1x500
11 Hamirpur 7x105 (1ph) 3x105 (1ph)
12 Jullandhar 2x315 1x500
13 Panchkula 2x315 1x500
With 220kV line Bays”
29. The MOM clearly records augmentation of transformation capacity at
Hamirpur with a third 315 MVA transformer together with 220 kV line bays. The
notation “With 220 kV line Bays” appended to the Hamirpur entry leaves no
ambiguity that the augmentation was inseparably linked with provision of such
bays. It is further material that HPPTCL was a participant in these discussions
and concurred in the approval. At no stage did HPPTCL raise any objection or
reservation that the approval was conditional upon its furnishing a separate
intimation of requirement with a two-year timeline. The contemporaneous record
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Judgement in Appeal No. 300 of 2022
thus evidences that the requirement of two bays at Hamirpur, meant to facilitate
connectivity to Palampur (Dehan), stood crystallized and approved with
HPPTCL’s concurrence.
Subsequent Events
30. Subsequent events further reinforce this conclusion. HPPTCL itself, by
email dated 17.12.2013 addressed to CEA, requested inclusion of the proposal
for construction of a 220/132 kV substation at Dehan along with a 220 kV Dehan–
Hamirpur double circuit line in the agenda for the 33rd SCM . The said request
was duly forwarded by CEA to POWERGRID as CTU for inclusion in the Agenda
rd
of 33 SCM.
th th
31. In the 39 Meeting of NRPC and 35 Meeting of TCC held on 02.05.2017
under the status of downstream network of Hamirpur 400/220 kV ISTS station, it
is noted that substation is expected to be commissioned by Aug 2017, and 4 nos
of 220 kV downstream lines commissioned while balance 2 Nos of 220 kV lines
yet to be awarded by state of HP.
32. In the agenda for the 39th SCM held on 29–30 May 2017, at point no 32.2.0,
scope of HPPTCL intra-state transmission system, including establishment of
the Dehan substation and the Dehan–Hamirpur 220 kV line as part of the
Intra-State Green Energy Corridor in Himachal Pradesh was indicated as
submitted by HPPTCL vide its letter dated 03.07.2014 and email dated
th
09.03.2017. The minutes of the 39 SCM meeting recorded the status of
downstream network by State utilities from ISTS station at point no 36, under
which utilization of six 220 kV bays at Hamirpur was noted as four bays were
already utilized, whereas the remaining two bays for Kangoo were yet to be
utilized by HPPTCL.
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Judgement in Appeal No. 300 of 2022
33. HPPTCL vide its letter dated 14.11.2017, in response to POWERGRID
letter 18.10.2017, informed the status of Hamirpur – Dehan line. Relevant portion
of the letter is extracted hereunder :
“Subject: Readiness of 220 kV Transmission Line for evacuation of
power by HPPTCL to match the Commissioning of ICT-III along with 2
Nos 220 KV Line Bays at 400/220 KV GIS Sub-Station, Hamirpur
expected by 30.11.2017.
Reference: Your office letter No:- N2HMR/NRPC/HPPTCL/647
Dated: 18.10.2017
With reference to your office letter captioned above, it is to
inform you that survey work of 220 kV Double Circuit transmission line
from PGCIL 400/220kV Sub-Station Hamirpur to Dehan (Patti) Distt.
Kangra has already been completed. Forest clearance case is being
submitted to the concerned authorities for obtaining necessary
permission. Tenders for construction of above line have been called
and price evaluation is being carried out. It is expected that work will be
awarded by December, 2017. Considering minimum construction
period of 24 Months, above transmission line completion is scheduled
in Dec. 2019.
In this regard, it is requested to provide technical parameters
of PLCC, and FOTE system so as to procure compatible
communication system for the other end 220 kV Bus Bar Parameters
at your end may also be confirmed.”
st th
34. In the 41 meeting of NRPC and 38 meeting of TCC held on 11.04.2018 ,
wherein status of 3 x 315 MVA transformer along with 220 kV bays was recorded
that substation shall be commissioned by March 2018, 4 nos of 220 kV bays
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Judgement in Appeal No. 300 of 2022
already utilized under ISTS and 2 nos of 220 kV bays to be utilized for connecting
to Kangoo substation.
th nd
35. Further, in the MOM of 40 SCM held on 22 June 2018, status of
downstream network for utilization of transformation capacity at various
substations was discussed, including that of 3x315 MVA Hamirpur (PG)
substation. The following, inter alia, was recorded:
“S.
No.
Substation Downstream
network
requirement
Downstream
network
Status as given
by STUs
Hamirpur
400/220 kV
2x 315 MVA
Sub-station
(Augmentation
by 3x105 MVA
ICT) – To be
completed by
Sep’ 18
04 nos. 220 kv
downstream
lines
commissioned
under ISTS.
Balance two
bays to be
utilised by
HPSEBL
Dehan –
Hamirpur
220 kV D/c
line
HPPTCI
informed that
earlier 2 nos. of
bays were
planned to be
utilised for
connecting
220/132kV
Kangoo
substation by
HPSEBL.
Presently,
HPPTCL is
implementing
Dehan –
Hamirpur 220
kV D/c line with
commissioning
schedule as
April 2020.”
36. It is an admitted fact that HPPTCL participated in all the above-referred
meetings of the Standing Committee on Power System Planning (SCM) and the
Northern Region Power Committee (NRPC). The record clearly establishes that
it was HPPTCL which indicated the requirement of four 220 kV bays—two for
termination of its line to Kangoo substation and the balance two for Palampur
(Dehan) and continuously updated the status, never once questioned the
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Judgement in Appeal No. 300 of 2022
implementation of 220 kV bays for termination of 220 kV lines by them. In our
considered view, the specific stipulation in the minutes of the 30th SCM requiring
State Transmission Utilities (STUs) to intimate their requirement of 220 kV bays
with a lead time of two years does not pertain to the subject transmission asset
at Hamirpur. As already observed above, the requirement of two bays for kangoo
and Palampur was already crystallized in the 30th SCM, and was subsequently
approved and concurred in the 25th NRPC meeting held on 22–23 February
2013.
37. It is pertinent to note that the balance 24 numbers of 220 kV bays, which
th
were planned as part of the additional agenda for the 30 SCM, were not taken
up for approval in the subsequent meetings. For those bays, the requirement was
indeed to be indicated by the respective State utilities. In subsequent meetings
where timelines of downstream systems of various State utilities were discussed,
including those emanating from Hamirpur (PG) substation, HPPTCL never
contended that it was yet to intimate its requirement of the two bays. On the
contrary, from the minutes of the 40th NRPC meeting held on 22 June 2018, it is
evident that HPPTCL submitted the implementation schedule of the Hamirpur–
Dehan transmission line as April 2020.
38. Further, when POWERGRID, by communication dated 18.10.2017,
informed HPPTCL that construction of Asset-2 i.e 220 kV bays Hamirpur (PG)
had reached an advanced stage and requested HPPTCL to ensure readiness of
the corresponding downstream 220 kV transmission lines to match
commissioning of the bays, HPPTCL, in its reply dated 14.11.2017, did not
contest or object to the implementation of the bays by POWERGRID on the
ground of absence of prior intimation for taking up the implementation of 220 kV
bays, instead, HPPTCL merely informed the status of execution of the Hamirpur–
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Judgement in Appeal No. 300 of 2022
Dehan line, with a commissioning timeline of December 2019. This conduct
unequivocally demonstrates that HPPTCL accepted the implementation of the
subject bays and proceeded with the planning and execution of its corresponding
downstream system accordingly.
39. We accordingly hold that the requirement of subject two 220 kV bays at
th
Hamirpur (PG) ISTS substation for HPPTCL was crystallized in the 30 SCM,
th
held on 19.12.2011 approved in the 25 NRPC meeting held on 23.02-2012-
24.02.2012. The stipulation regarding advance intimation of requirement of 220kv
bays by the STUs does not apply to these bays, as their necessity was already
recorded and approved. HPPTCL, having itself sought and thereafter proceeded
to utilized the same, cannot now contest the liability for transmission charges
fastened on it by contending absence of prior intimation . Accordingly, such
contention of Appellant is rejected.
Applicability of Provision under IEGC 2010- third Proviso to Regulation 6.3
A (4) of Fourth Amendment to IEGC 2010
40. Emphasis has been laid by the Appellant on the third proviso to Regulation
A (4) of the Fourth Amendment to IEGC 2010, to contend the liability of payment
of transmission charges for the subject assets that no implementation agreement
has been signed by HPPTCL with POWERGRID for finalizing the time line. For
ease of reference, same is extracted hereunder.
“4. Date of commercial operation in relation to an inter-State
Transmission System or an element thereof shall mean the date
declared by the transmission licensee from 0000 hour of which an
element of the transmission system is in regular service after
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Judgement in Appeal No. 300 of 2022
successful trial operation for transmitting electricity and communication
signal from the sending end to the receiving end:
….
(iii) Where the transmission system executed by a transmission licensee is
required to be connected to the transmission system executed by any other
transmission licensee and both transmission systems are executed in a
manner other than through tariff based competitive bidding, the transmission
licensee shall endeavour to match the commissioning of its transmission
system with the transmission system of the other licensee as far as
practicable and shall ensure the same through an appropriate
Implementation Agreement. Where either of the transmission systems or
both are implemented through tariff based competitive bidding, the progress
of implementation of the transmission systems in a matching time schedule
shall be monitored by the Central Electricity Authority.”
41. We take note that fourth Amendment to IEGC, 2010, which include the
above provision was issued on 06.04.2016, and was to be made applicable from
the date of publication in the official Gazette, which could be only subsequent to
06.04.2016. As already deliberated above, the subject 220 kV bays were
finalized and approved way back in 2011-12. It is noted that subsequent to the
approval of the scheme including the subject asset, POWERGRID initiated the
process for implementation of scheme, and Ministry of Power (“MOP”), Govt of
India on 19.03.2013 issued prior approval under Section 68 of the Electricity Act,
which is a mandatory requirement for installation of the Transmission Scheme:-
Typed Copy
ANNEXURE A/2
th
“New Delhi, dated the 19 March, 2013
To,
CMD,
PGCIL
Gurgaon
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Judgement in Appeal No. 300 of 2022
Sub: Prior Approval of the Government under Section 68 of the Electricity Act,
2003 for Augmentation of Transformers: In Northern Region-Part B.
Sir,
I am directed to refer to PGCIL's letter no, C/CP/Aug. of Transformers In
NR- Part- B dated 20.02.2013 on the above subject and to convey the prior
approval of the Central Government under sub-section (1) of Section 68 of the
Electricity Act, 2003 for "Augmentation of Transformers in Northern Region-Part
B" at the following existing substation as approved in the 30th Standing
Committee Meeting on Power System Planning of NR held on 19.12.2011 and
st
31 Standing Committee Meeting on Power System Planning of Northern
Region held on 02.01.2013:
Name of 400 kV Substation Proposed
Transformer
augmentation
220 kV
Sl.No.
line
bays
(MVA)
1. Samba 1 X 315 -
2. Gurgaon 1 X 500 -
3. Hamirpur 3 X 105 2 nos.
4. Jalandhar 1 X 500 2 nos.
5. Panchkula 1 X 500 -
The approval is subject to compliance of (a) the requirement of the
relevant provisions of the Electricity Act, 2003, as amended from time to time
and the rules and regulations framed there-under and (b) the rules governing,
the overhead lines as specified in the Indian Electricity Rules, 1958, till they are
substituted by corresponding rules framed under the Electricity Act, 2003
The approval is also subject to the following conditions:
i. The implementing agency will commence construction of the project within
3 years, unless this term is extended by the Ministry of Power.
ii. Ministry of Power may withdraw the approval before the expiry of the period
of 3 years after giving a one-month notice.
Yours faithfully,
(Ajay Joshi)
Under Secretary to the Govt of India
Telefax No. 23730264
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Judgement in Appeal No. 300 of 2022
Copy to Shri B.K. Sharma, Director (SP&PA), CEA w.e.f. CEA’s letter
No.1/3/2013/SP&PA/295 dated 01.03.2013.”
42. It is to note that such prior approval under Section 68 of Electricity Act also
took cognizance of the approval of scheme in the Standing Committee meetings.
Subsequently, the investment approval of the said Scheme, including the subject
assets, was accorded by Board of Director’s of POWERGRID on 16.05.2014,
The grant of investment approval of the scheme means that Board of
POWERGRID, the approving authority, authorized POWERGRID to start
implementation of the scheme, thus setting the start date for implementation of
the scheme, We have been informed by Respondent that intimation of Investment
approval of the scheme was sent to HPPTCL also; not disputed by HPPTCL.
Thus, we do not find merit in the contention of HPPTCL that POWERGRID had
proceeded to implement and construct the bays without any communication
whatsoever regarding commencement of the works.
43. It is further noteworthy that, throughout the implementation process,
HPPTCL never raised any objection to POWERGRID undertaking the execution
of the Scheme. Presumably because HPPTCL has also initiated the parallel
activities for implementation of Dehan – Hamirpur 220 kV transmission lines as
is evident from its email communication addressed to CEA in 2013, as well as the
deliberations recorded in subsequent standing committee meetings.
44. The Appellant seeks to rely upon the third proviso to Regulation 6.3A (4) of
the Fourth Amendment to the Indian Electricity Grid Code, 2010, contending that,
in the absence of an Implementation Agreement absolves it of liability for payment
of transmission charges on account of mismatch. It is a settled canon of statutory
interpretation that subordinate legislation, including regulations framed under
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Judgement in Appeal No. 300 of 2022
Sections 178 or 181 of the Electricity Act, ordinarily operates prospectively.
Retrospective application can only be sustained where the parent statute
expressly confers such power or where the regulation is clarificatory or procedural
in nature. In the absence of such enabling authority, regulations cannot be
construed to impose obligations or liabilities for past periods, as this would offend
the doctrine of fairness and settled expectations. The Supreme Court has
consistently held that unless the parent statute itself authorizes retrospective
operation, delegated legislation cannot travel beyond the prospective sphere. In
the present case, admittedly the fourth amendment to IEGC was made applicable
only upon its publication in the Official Gazette, subsequent to i.e., on 29.04.2016,
while actual implementation activities were initiated much earlier, on 16.04.2014,
even if considered from Investment approval date. Consequently, the provisions
introduced by the Fourth Amendment cannot be invoked to govern or invalidate
actions undertaken prior to their coming into force.
45. We accordingly hold that the third proviso to Regulation 6.3A(4) of the
Fourth Amendment to the IEGC, 2010, is not applicable to the present case. The
contention of the Appellant that its liability for transmission charges can be
avoided on the basis of retrospective application of the said amendment is
rejected. The reliance has been placed by the Appellant on the Judgment of
Hon’ble Supreme Court in “ Mary v. State of Kerala” (2014) 14 SCC 272 , that
parties are bound by the specific provisions of the contract executed between
them. Since the provision introduced by the fourth amendment of IEGC, 2010,
are not applicable in the present case, the ratio of the aforesaid judgment does
not advance the Appellant's case and is, therefore, inapplicable.
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Judgement in Appeal No. 300 of 2022
46. The reliance placed by the Appellant on the Judgment of this Tribunal in
“ NRSS XXXI (B) Transmission Ltd. v. CERC & Ors .” is equally misconceived
and distinguishable on facts. In the said case, this Tribunal held that, in the
absence of any contractual privity or binding agreement between the
transmission licensees, coupled with the absence of any statutory provision
creating such liability, mismatch liability, being compensatory in nature, could not
be fastened upon the transmission licensee, particularly when its non-
performance stood excused on account of Force Majeure. The ratio of the said
judgment was rendered in the peculiar factual matrix where no consensus or
binding obligation existed between the parties regarding the development and
matching commissioning of the interconnected transmission assets.
47. The present case stands on an entirely different footing. Here, the
contemporaneous records of the Standing Committee, TCC and NRPC meetings
unequivocally establish that the requirement of the subject 220 kV bays
emanated from HPPTCL itself, that the same was deliberated upon and approved
with its concurrence, and that HPPTCL thereafter consistently participated in the
implementation process by furnishing the progress and commissioning schedule
of its corresponding downstream transmission system. At no stage did HPPTCL
dispute the requirement of the subject bays or object to their implementation by
POWERGRID. Thus, the liability in the present case does not arise merely from
a bilateral contractual arrangement but flows from the statutory transmission
planning process, the approvals granted thereunder, and the settled regulatory
principle that the entity whose delay prevents a commissioned transmission asset
from being put to regular service must bear the consequential transmission
charges. Consequently, the ratio laid down in the NRSS XXXI (B ) Judgment has
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Judgement in Appeal No. 300 of 2022
no application to the facts of the present case and does not advance the case of
the Appellant.
48. Additionally, noting the submission of Respondents that this contention
were neither pleaded nor urged either during the tariff proceedings or in the
present Appeal and we also note that action of HPPTCL speaks otherwise with
regard to them having initiating the action for implementation of Hamirpur –
Dehan 220 kV line, reliance on the said provision in the fourth amendment of
IEGC 2010, in our view seems to be an afterthought .
49. Further, the reliance placed by HPPTCL on the Judgment of this Tribunal
dated 27.03.2017 passed in Appeal No. 390 of 2017, titled “ PSCPL v. Patran
Transmission Co. Ltd. & Ors .”, ( Patran Judgment) is misconceived and of no
avail. In the said judgement, this Tribunal, relied upon the principle that the liability
to bear transmission charges have to be paid by the entity because of whom the
asset could not be put to use and accordingly, the transmission charges were
directed to be paid by the PSPCL, who was responsible for arranging the
downstream network. The same principle, in fact, squarely applies to the present
case. The Appellant itself had projected the requirement of the subject 220 kV
bays for the Dehan–Hamirpur 220 kV double-circuit transmission line. However,
owing to the failure of HPPTCL to commission the said transmission line, the
subject asset could not be put to use. Consequently, in terms of the principle laid
down in the Patran Judgment, the liability for payment of transmission charges
has rightly been fastened upon HPPTCL for the period until the subject asset was
put to use.
50. In the Judgment of this Tribunal in Appeal No. 109 of 2021 PSTCL vs
CERC & Ors. ( “PSTCL Judgement”), the issue involved was between Punjab
State Transmission Corporation Limited (PSTC), a transmission licensee
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engaged in the business of intra- state Transmission system and POWERGRID,
(then CTU) engaged in the business of inter-State Transmission System.
POWERGRID undertook the implementation of 220 kV inter-State bays at
Jallandhar substation, for utilization by PSPCL. The CERC in the same Impugned
Order dated 21.11.2019 affixed the liability of payment of transmission charges
for 220 kV bays from its COD of 31.03.2019 till commissioning of downstream
network by upon PSTCL. Aggrieved thereby, PSTCL approached this Tribunal
contenting that no requirement of such asset has been communicated by it, and
there being no contractual liability or occasion for PSTCL to be treated as entity
in default, the liability of payment of transmission charges by PSTCL is in violation
of law. This Tribunal after pursuing the minutes of standing committee and
Regional Power committee meetings, which led to the approval of scheme
including the subject asset and various other judgments noted that there was no
agreement reached between the parties for development of subject assets. This
Tribunal in the said judgement also noted that PSTCL had specifically refuted the
requirement of subject bays, firstly, vide its letter dated 16.02.2017 issued in
st
response to POWERGRID letter and in the 41 meeting of NRPC held on
28.02.2018. On the basis of the aforesaid facts, this Tribunal ultimately held as
under:
“27. From the chronology of events, it is clear that PGCIL went ahead
with the development of the work assuming that there was a requirement
of the asset for purposes of the appellant. This assumption, without
confirmation by the STU, was unfounded. In these circumstances, it cannot
be said that there was an agreement reached between the parties (PGCIL
on one hand and PTCL on the other) for development of the subject asset.
In this view, as indeed in absence of any contract binding the parties to the
dispute herein, the liability towards transmission charges cannot be
fastened on the STU (PSTCL), not the least on the ground that it had been
remiss in development of the downstream system”.
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Judgement in Appeal No. 300 of 2022
51. The facts of the present case are materially and factually distinguishable
from those involved in the PSTCL v. CERC & Ors. In the present case it has been
established through MOM of multiple TCC and NRPC meetings that the bays at
Hamirpur were sought by HPPTCL and agreed to be developed for them. Even
in subsequent discussions, HPPTCL never disputed the requirement and simply
intimated the factual status of development of associated asset being developed
by them. Accordingly, the reliance placed by Appellant on the said Judgment of
this Tribunal in Appeal no 109 of 2021, PSTCL vs CERC & Ors is of no avail.
52. It is apposite to refer to the Judgment of this Tribunal in Bhopal Dhule
Transmission Company Limited v. CERC & Ors., wherein the issue pertained
to a mismatch between transmission assets developed by two transmission
licensees under Sections 62 and 63 of the Electricity Act. Relying upon the earlier
judgments of this Tribunal as well as the Hon'ble Supreme Court, this Tribunal
reiterated that a transmission licensee, having duly commissioned its
transmission asset, is entitled to tariff from the date of commissioning. However,
such tariff cannot be socialized through the PoC pool of ISTS beneficiaries until
the asset is put to regular service. The Tribunal further reaffirmed the settled
principle that, in a case of mismatch between interconnected transmission assets,
the financial consequences cannot be vested upon the beneficiaries or the
transmission licensee whose asset is ready for use. Rather, the liability for
payment of transmission charges is required to be borne by the entity whose
failure or omission has prevented the commissioned asset from being put to
regular service. Applying the aforesaid principle, this Tribunal upheld the Order of
the Central Commission fastening the liability for payment of transmission
charges upon the defaulting entity responsible for the mismatch, thereby ensuring
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Judgement in Appeal No. 300 of 2022
that the transmission licensee, which had completed its obligations, was not
deprived of its legitimate tariff entitlement.
CONCLUSION
In view of above deliberations, we do not find any error in the Impugned Order
passed by CERC and Impugned Order is upheld.
The Captioned Appeals and pending IAs, if any, are dismissed.
nd
PRONOUNCED IN THE OPEN COURT ON THIS 22 DAY OF July, 2026.
(Virender Bhat)
Judicial Member
(Seema Gupta)
Officiating Chairperson
REPORTABLE / NON-REPORTABLE
pr/dk/ag
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