East-North Interconnection Company Limited vs Central Electricity Regulatory Commission & Ors
- Court
- Appellate Tribunal For Electricity
Order in Appeal No. 447 of 2022
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
(Appellate Jurisdiction)
APPEAL NO. 447 of 2022
Dated: 08.09.2026
Present: Hon’ble Mr. Virender Bhat, Judicial Member
Hon’ble Mr. Ajay Talegaonkar, Technical Member
IN THE MATTER OF:
East-North Interconnection Company Limited
Through its Authorized Signatory, Lokendra Singh Rawat
F-1, Mira Corporate Suits
1& 2, Mathura Road, Ishwar Nagar,
New Delhi – 110065.
…Appellant
Versus
1. Central Electricity Regulatory Commission
Through its Secretary,
3rd & 4th Floor, Chanderlok Building,
Janpath, New Delhi
Delhi – 110 001.
2. Jodhpur Vidyut Vitran Nigam Ltd.
Through its Managing Director,
New Power House, Industrial Area,
Jodhpur – 342 003
3. Jaipur Vidyut Vitran Nigam Ltd.,
Through its Managing Director,
Vidyut Bhawan, Janpath,
Jaipur – 302 005
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Order in Appeal No. 447 of 2022
4. Ajmer Vidyut Vitran Nigam Ltd.,
Through its Managing Director,
Old Power House, Hathi Bhatta,
Jaipur Road, Ajmer – 305001
5. BSES Yamuna Power Ltd .,
Through its Managing Director,
Shakti Kiran Building,
Karkardooma, New Delhi – 110 092
6. BSES Rajdhani Power Ltd.,
Through its Managing Director,
BSES Bhawan, Nehru Place,
New Delhi – 110 019
7. North Delhi Power Ltd.,
(Now known as Tata Power Delhi Distribution Limited)
Through its Managing Director,
Sub Station Buidling, Hudson Lines,
Kingsway Camp,
New Delhi – 110 009
8. New Delhi Municipal Corporation
Through its Chairperson,
Palika Kendra Building,
Opp. Jantar Mantar Building,
Parliament Street, New Delhi – 110 001
9. Uttarakhand Power Corporation Ltd.,
Through its Managing Director,
Urja Bhawan, Kanwali Road,
Dehradun, 248 001
10. Paschimanchal Vidyut Vitran Nigam Ltd.,
Through its Managing Director,
Victoria Park, Meerut – 250 001
11. Poorvanchal Vidyut Vitran Nigam Ltd.,
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Order in Appeal No. 447 of 2022
Through its Managing Director,
Hydel Colony, Bhikharipur,
Post: DLW, Varanasi – 221 004
12. Dakshinanchal Vidyut Vitran Nigam Ltd.,
Through its Managing Director,
220 kV Vidyut Sub-Station,
Mathura Agra by pass road,
Sikandra, Agra – 282 007
13. Madhyanchal Vidyut Vitran Nigam Ltd.,
Through its Managing Director,
4-A, Gokhle Marg,
Lucknow-226 001
14. Uttar Haryana Bijli Vitran Nigam Ltd .,
Through its Chairman,
Vidyut Sadan, Plot No. 16-C,
Sector-6, Panchkula- 134 109
15. Dakshin Haryana Bijli Nigam Ltd.,
Through its Managing Director,
VidyutSadan, Vidyut Nagar,
Hissar – 125 005
16. Punjab State Electricity Board ,
Through its Managing Director,
The Mall, Patiala – 147 001
17. Power Development Department,
Through its Managing Director,
Mini Secretariat, Jammu,
Jammu& Kashmir – 180 001
18. Himachal Pradesh State Electricity Board ,
Through its Managing Director,
Vidyut Bhawan, Shimla – 171 004
19. North Central Railway,
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Order in Appeal No. 447 of 2022
Through its General Manager,
Subedarganj, Allahabad – 211 033
20. UT Chandigarh ,
Chandigarh Administration,
Through its Administrator,
Sector-9, Chandigarh, 160101 … Respondent(s)
Counsel for the Appellant(s) : Mr. B. P. Patil, Sr. Adv.
Mr. Syed Jafar Alam
Mr. Deep Rao Palepu
Mr. Ashwin Ramanathan
Mr. Saahil Kaul
Mr. Arjun Agarwal
Mr. Harneet Kaur for App. 1
Counsel for the Respondent(s) : None from Respondents
ORDER
PER HON’BLE MR. AJAY TALEGAONKAR, TECHNICAL MEMBER
1. The present Appeal has been filed against the Order dated 11.08.2022
passed by the Central Electricity Regulatory Commission (“CERC”/ Central
Commission”/ Respondent No. 1”) in Petition No. 514/MP/2020, whereby the
Central Commission rejected the Appellant’s claims for relief on account of
alleged Force Majeure and Change in Law events arising from the collapse
of certain transmission towers forming part of the Purnea-Biharsharif 400kV
Quad D/C transmission line.
2. Brief facts of the case for the purpose of this order are as follows.
(i) Pursuant to the Tariff Based Competitive Bidding Guidelines notified
by the Ministry of Power, Power Finance Corporation Limited was
appointed as the Bid Process Coordinator for selection of a
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Order in Appeal No. 447 of 2022
transmission service provider for development of the East-North
Interconnection transmission project. Sterlite Technologies Limited
emerged as the successful bidder, following which it acquired the
Appellant company as its wholly owned subsidiary.
(ii) A Transmission Service Agreement (“TSA”) was executed between
the Appellant and the LTTCs. The Central Commission, by orders
dated 28.10.2010 passed in Petition Nos.130 of 2010 and 131 of
2010, adopted the transmission charges for the project and granted
a transmission licence to the Appellant for construction, operation
and maintenance of the Bongaigaon-Siliguri and Purnea-Biharsharif
400 kV transmission lines.
(iii) The Purnea-Biharsharif (PB) Line was commissioned on
13.09.2013 and the Bongaigaon-Siliguri (BS) Line was
commissioned on 11.11.2014. The transmission system thereafter
remained in operation.
(iv) Long after the transmission lines were commissioned, three towers
of the PB Line collapsed on 10.08.2018, 21.08.2018 and
03.10.2018 allegedly due to a change in the course of the River
Ganges. The river’s shift is claimed to have caused severe erosion
of the soil supporting the tower foundations, resulting in the collapse
and burial of the towers in the riverbed.
(v) In order to restore the transmission system, the Appellant claims to
have undertaken diversion of a portion of the PB Line, constructed
additional transmission towers, installed additional conductors and
transmission line and carried out other restoration works. The PB
Line was restored and successfully charged on 29.12.2019.
According to the Appellant, it incurred an additional expenditure of
₹ 94.58 Crore towards restoration of the PB Line. Out of the said
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amount, it received ₹ 12 Crore under its insurance policy and
claimed the balance amount of ₹ 82.58 Crore.
3. One of the prayers of the Appellant was for compensation for the
additional work purportedly undertaken by it on account of the “force majeure
event”. While going through the submissions, we noticed that Appellant has
relied upon this Tribunal’s judgement dated 07.07.2025 in Aravali
Transmission Service Company Limited vs Rajasthan Electricity Regulatory
Commission, Appeal Nos. 59 and 60 of 2016 (“Aravali judgement”) to support
its claim of ₹ 82.58 Crore under Force Majeure provision. The relevant
paragraphs of the aforesaid judgment are extracted below:
“203. The TSA provides for Force Majeure and relief thereto under Article
11.7. Article 11.7 of the TSA provides for relief available for Force Majeure
Events. Article 11.7(b) specifies 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’.
204. Article 11.7(b) of the TSA, which provides for relief for Force Majeure, is
a restitutive provision aimed at providing ameliorative relief to the Affected
Party suffering from the Force Majeure event. Thus, the relief available to a
party affected by a Force Majeure Event has been left to the Appropriate
Commission to mould as per the facts and circumstances of the case, as also
the applicable laws.
205. In this regard, it is relevant to note that Article 11.7(c) clarifies that relief
under Force Majeure (wherein an element is under outage), i.e., computation
of Availability will be as per regulations, and only the Non-Escalable
Transmission charges, as applicable to such element, will be paid. Thus, we
hold that relief under Article 11.7(b) also includes monetary compensation for
Force Majeure.”
4. We respectfully disagree with these observations of the Tribunal in the
said judgement. In our view, the principle laid down in the aforesaid decision
merits reconsideration, as the relevant provisions of the TSA, particularly
Article 4.4.2 and the material distinction between the language and scheme
of the Force Majeure and Change in Law provisions, do not appear to have
been specifically considered by the earlier Bench. In our respectful view,
consideration of these provisions in their proper context leads to a conclusion
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different from that reached in the aforesaid case. Therefore, in our opinion,
this issue needs consideration by the full bench of this Tribunal. In this order,
we are not dealing with the other issues raised by the Appellant. Once,
judgement of full bench is available, we shall proceed to pronounce the
judgement covering all the issues relevant for disposal of this appeal.
5. In order to develop our rationale for not agreeing with the Aravali
Judgement, it will be useful to peruse the relevant provisions of the TSA
relating to Force Majeure and Change in Law, which are extracted below:
“1.1 Definitions
“Indian Government Instrumentality” shall mean Government of India,
Government of any State in India or any ministry, department, board, authority,
agency, corporation, commission under the direct or indirect control of
Government of India or any State Government or both, any political sub-division
of any of them including any court or Appropriate Commission or tribunal or
judicial or quasi-judicial body in India but excluding the TSP and Long Term
Transmission Customers;
“Law” or “Laws” in relation to this Agreement, shall mean all laws including
electricity laws in force in India and any statute, ordinance, rule, regulation,
notification, order or code, or any interpretation of any of them by an Indian
Governmental Instrumentality having force of law and shall include all rules,
regulations, decisions and orders of the Appropriate Commission.”
…
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 and 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.”
…..
…..
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“11. FORCE MAJEURE
…..
11.2 Affected Party
…
11.2.3 Any event of Force Majeure shall be deemed to be an event of
Force Majeure affecting the TSP only if the Force Majeure event affects and
results in, late delivery of machinery and equipment for the Project or
construction, completion, commissioning of the Project by Scheduled COD
and/or operation thereafter;
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 conditions which are in excess of the statistical measure for the last
hundred (100) years.
…
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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.
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
except 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 the 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 IV to the Central
Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations
2009 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 IV to the Central
Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations
2009, 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 Schedule 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 with all reasonable safety
precautions and standards.
…
…..
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Order in Appeal No. 447 of 2022
12. CHANGE IN LAW
12.1 Change in Law
12.1.1 Change in Law means the occurrence of any of the following
after the date, which is seven (7) days prior to the Bid Deadline resulting into
any additional recurring / non-recurring expenditure by the TSP or any income
to the TSP:
• the enactment, coming into effect, adoption, promulgation, amendment,
modification or repeal (without re-enactment or consolidation) in India,
of any Law, including rules and regulations framed pursuant to such
Law;
• a change in the interpretation or application of any Law by any Indian
Government Instrumentality having legal power to interpret or apply
such Law, or any Competent Court of Law;
• the imposition of a requirement for obtaining any Consents, Clearances
and Permits which was not required earlier,
• a change in the terms and conditions prescribed for obtaining any
Consents, Clearances and Permits or the inclusion of any new terms or
conditions for obtaining such Consents, Clearances and Permits;
• any change in the licensing regulations of the Appropriate Commission,
under which the Transmission License for the Project was granted if
made applicable by such Appropriate Commission to the TSP;
• any change in the Acquisition Price: or
• any change in tax or introduction of any tax made applicable for
providing Transmission Service by the TSP as per the terms of this
Agreement.
12.1.2 Notwithstanding anything contained in this Agreement, Change
in Law shall not cover any change:
a. on account of regulatory measures by the Appropriate Commission
including calculation of Availability; and
b. in any tax applied on the income or profits of the TSP.
12.2 Relief for Change in Law
12.2.1 During Construction Period:
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During the Construction Period, the impact of increase/decrease in the cost of
the Project in the Transmission Charges shall be governed by the formula
given below:
For every cumulative increase/decrease of each Rupees Four Crores
(Rs.4,00,00,000) in the cost of the Project up to the Scheduled COD of the
Project, the increase/decrease in non-escalable Transmission Charges shall
be an amount equal to 0.32 percent (0.32%) of the Non-Escalable
Transmission Charges.
12.2.2 During the Operation Period:
During the Operation Period, the compensation for any increase/decrease in
revenues shall be determined and effective from such date, as decided by the
Appropriate Commission whose decision shall be final and binding on both the
Parties, subject to rights of appeal provided under applicable Law.
Provided that the above mentioned compensation shall he payable only if the
increase/decrease in revenues or cost to the TSP is in excess of an amount
equivalent to one percent (1%) of Transmission Charges in aggregate for a
Contract Year.
12.2.3 For any claims made under Articles 12.2.1 and 12.2.2 above,
the TSP shall provide to the Long Term Transmission Customers and the
Appropriate Commission documentary proof of such increase/decrease in cost
of the Project/revenue for establishing the impact of such Change in Law.
12.2.4 The decision of the Appropriate Commission, with regards to
the determination of the compensation mentioned above in Articles 12.2.1 and
12.2.2, and the date from which such compensation shall become effective,
shall be final and binding on both the Parties subject to rights of appeal
provided under applicable Law .”
6. It may be noted that the Article 11.7 of the TSA provides only for relief
from the performance of contractual obligations affected by the Force
Majeure event. Unlike Change in Law provision, it does not, either expressly
or by necessary implication, provide for reimbursement of the costs or
expenses incurred by the affected party in mitigating the consequences of
such event or restoring the transmission system. This distinction is
consistent with the approach generally adopted in electricity infrastructure
contracts, which treats Force Majeure and Change in Law as distinct risk-
allocation mechanisms. Force Majeure relief is directed principally at
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relieving the affected party from the consequences of non-performance
caused by the Force Majeure Event, whereas a Change in Law provision
may go further by expressly protecting the affected party against the
1
economic consequences of the event through tariff adjustment .
7. In our opinion, the language of Article 11.7 indicates that the relief
contemplated for a Force Majeure Event is essentially directed to the
affected Party’s performance of its contractual obligations. Article 11.7(a)
protects a Party from being in breach to the extent its performance is
prevented, hindered or delayed by an Force Majeure Event, while Article
11.7(b) entitles a Party to claim relief for an Force Majeure Event “affecting
its performance in relation to its obligations under this Agreement.” These
provisions are general in nature and can operate both during construction
and operation. Article 11.6 further requires the affected Party to use
reasonable efforts to mitigate the effect of the Force Majeure Event.
8. Article 11.7(c), however, deals with a specific operational consequence
of a Force Majeure Event, namely its effect on the computation of Availability
and the corresponding Transmission Charges. Where a Force Majeure
Event affects the operation of an Element, the clause provides that, in the
circumstances specified therein, the Element is deemed to be available for
determining the applicable Transmission Charges, and the Non-Escalable
Transmission Charges remain payable. Article 11.7(c) thus addresses the
contractual consequence of impaired performance during operation. It does
not convert the general relief under Article 11.7(a) and (b) into a right to
reimbursement or restitution of costs or losses suffered on account of the
1
World Bank, “Power Purchase Agreements (PPAs) and Energy Purchase Agreements (EPAs)”, available
at https://ppp.worldbank.org/sector/energy/energy-power-agreements/power-purchase-agreements , last
accessed on 14.08.2026
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Force Majeure Event.
9. The same understanding is reinforced by Article 4.4.2, which
specifically addresses the consequence of a Force Majeure Event during
construction. Where commissioning is delayed by an Force Majeure Event,
the Scheduled COD is extended on a day-for-day basis, but only up to 180
days, after which the TSP or the Majority LTTCs may exercise the option to
terminate the Agreement. Thus, the TSA addresses Force Majeure related
delay principally through extension of time and, beyond the prescribed
period, through an option for termination, rather than through compensation
for the economic consequences of the delay. If the TSP were entitled to
recover costs arising from a Force Majeure induced delay, the prescription
of a finite 180-day period would serve little purpose, since such costs would,
on that interpretation, remain recoverable irrespective of the duration of the
delay. The 180-day limit therefore indicates that the TSA consciously limits
the TSP’s exposure to the consequences of prolonged Force Majeure by
providing a defined period of contractual relief, rather than an open-ended
right to recover costs occasioned by the Force Majeure Event.
10. This interpretation is particularly significant when contrasted with the
Change in Law provisions. Article 12.2 expressly provides for the economic
consequences of a Change in Law. During construction, Article 12.2.1
provides a formula for adjusting Non-Escalable Transmission Charges for an
increase or decrease in Project cost. During operation, Article 12.2.2
provides for compensation for an increase or decrease in revenue where the
aggregate impact exceeds one per cent of Transmission Charges for the
Contract Year. The TSP is also required to furnish documentary proof of the
resulting increase or decrease in cost or revenue. Thus, where the parties
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intended to provide for economic consequences, they expressly identified
the relevant impact, prescribed a mechanism for quantifying it and specified
the threshold beyond which an adjustment would arise. No comparable
threshold, formula or mechanism for determining Force Majeure-related
costs or losses is found in Article 11.
11. The difference in the contractual treatment of Force Majeure and
Change in Law is therefore material and supports the conclusion that Force
Majeure relief is performance-based rather than restitutionary. In other
words, it addresses the consequences of inability, hindrance or delay in
performing contractual obligations, rather than restoring the TSP to the
economic position it would have occupied had the Force Majeure Event not
occurred.
12. The principle that a court cannot supply an omission by interpretation
is well settled. In State of Jharkhand v. Govind Singh, Appeal (crl.) 1405
of 2004, decided on 03.12.2004 , the Hon’ble Supreme Court held that a
casus omissus (an omitted case) cannot be supplied by a court except in a
case of clear necessity, where the reason for doing so is found within the four
corners of the statute itself. Similarly, in Mukund Dewangan v. Oriental
Insurance Co. Ltd., Civil Appeal No. 5826 of 2011, decided on
03.07.2017, the Court observed that what has not been provided in a statute
cannot be supplied by the Court merely by interpretation, as doing so would
amount to legislation rather than construction.
13. The same principle is relevant here. The question is not whether
economic compensation for a Force Majeure Event could have been
provided for in the TSA, but whether the TSA has actually provided for it.
Article 11 contains no provision identifying Force Majeure related cost or loss
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as a compensable item, no mechanism for quantifying such cost or loss, and
no threshold or adjustment mechanism for recovering it. In contrast, Article
12.2 expressly provides for economic adjustment in respect of Change in
Law. To read a general right of economic restitution into Article 11.7(b),
therefore, would not merely interpret the provision; it would add a substantive
monetary entitlement which the parties have not stipulated.
14. This approach is also consistent with the principles laid down by the
Hon’ble Supreme Court in Energy Watchdog v. Central Electricity
Regulatory Commission , (2017) 14 SCC 80 . The Hon’ble Supreme Court
recognised that a Force Majeure provision operates as a contractual
contingency under Section 32 of the Indian Contract Act, 1872, and
emphasised that the express terms of a contract cannot be disregarded on
a vague plea of equity. The contractual allocation of risk, having regard to
the terms of the contract and its context, must govern the consequences of
the supervening event.
15. The same principle of giving effect to the parties’ contractual allocation
of risk was reiterated by the Hon’ble Supreme Court in Chamundeshwari
Electricity Supply Co. Ltd. v. Saisudhir Energy (Chitradurga) Pvt. Ltd.,
CA No. 6888 of 2018, decided on 25.08.2025 . In the context of a PPA
resulting from a competitive bidding process and having received regulatory
approval, the Hon’ble Court emphasised that the agreement must be
construed and enforced in accordance with its express stipulations, and that
the contractual allocation of risk cannot be overridden by the regulatory
authorities.
16. Having expressed disagreement with the legal principle enunciated by
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this Tribunal in the Aravali judgement (supra), the right course of action would
be to refer the matter to the Full Bench of the Tribunal for effective
adjudication of the controversy.
17. We are conscious of the fact that the forgoing discussion was with
reference to a specific TSA, which was based on the model PPA issued as
part of the competitive bidding guidelines issued by the Government of India
under Section 63 of the Act. However, there is need to make the reference
to full bench of this Tribunal much more general in nature. Accordingly, we
have identified the following features of an agreement, which when read
together, may indicate that the parties did not intend Force Majeure to give
rise to monetary compensation or restitution:
(i) The language of the relevant provision of the agreement only talks
about relief from contractual obligations under Force Majeure
Event.
(ii) There is a specific provision in the agreement dealing with
procedure for extension of time but no specific provision about
assessing the cost due to Force Majeure Event.
(iii) There is specific provision about impact of cost increase due to
some other contingency like Change in Law but not under Force
Majeure Event thereby indicating that the latter is not a slip but
intentional provision.
(iv) There is option to terminate the agreement if the Force Majeure
Event exceeds particular duration thereby indicating intention of the
parties to limit the risk without explicit cost compensation.
(v) There is a provision in the agreement to the effect that if Force
Majeure Event takes place during operational phase of the project,
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the project will be given deemed availability, thereby indicating that
the relief is only limited to performance.
18. The issue to be considered and adjudicated upon by the Full Bench is
falling as under: -
“Whether the word “RELIEF” to which an affected party is entitled
under the Force Majeure clause of an Agreement (be it a Power
Purchase Agreement or a Transmission Service Agreement etc.)
would include monetary compensation also, particularly where the
agreement contains the five indicators mentioned in paragraph 17
of this order.”
19. Accordingly, we direct the Registry to place this matter before the
Hon’ble Acting Chairperson with the request to constitute a Full Bench of this
Tribunal for an authoritative and binding decision on the above issue.
th
PRONOUNCED IN THE OPEN COURT ON THIS 8 DAY OF
SEPTEMBER, 2026.
(Ajay Talegaonkar)
(Virender Bhat)
Judicial Member
REPORTABLE / NON-REPORTABLE
Technical Member
kns/mkj/kks
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