Power Grid Corporation of India Limited vs Central Electricity Regulatory Commission &
- Court
- Appellate Tribunal For Electricity
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
(Appellate Jurisdiction)
Court-2
APPEAL No. 367 of 2019
th
Dated : 6 July, 2026
Present: Hon’ble Ms. Seema Gupta, Officiating Chairperson
Hon’ble Mr. Virender Bhat, Judicial Member
In the matter of:
Power Grid Corporation of India Limited
Saudamini”, Plot No.2, Sector-29
Gurgaon - 122001 … Appellant
Versus
1. Central Electricity Regulatory Commission
Through its Secretary
rd th
3 and 4 Floor, Chanderlok Building
36, Janpath, New Delhi - 110001
2. North Bihar Power Distribution Company Limited
Through its Chairman and Managing Director
Third Floor, Vidyut Bhawan,
Bailey Road, Patna - 800001
3. South Bihar Power Distribution Company Limited
Through its Chairman and Managing Director
Second Floor, Vidyut Bhawan,
Bailey Road, Patna – 800001
4. West Bengal State Electricity Distribution Company
Limited
Through its Chairman and Managing Director
Bidyut Bhawan, Bidhan Nagar,
Block DJ, Sector-II, Salt Lake City
Kolkata – 700091
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Appeal No. 367 of 2019 Page 1 of 45
5. Grid Corporation of Orissa Limited
Through its Chairman and Managing Director
Shahid Nagar, Bhubaneshwar – 751007
6. Damodar Valley Corporation
Through its Chairman
DVC Tower, Maniktala, Civic Centre,
VIP Road, Kolkata – 700054
7. Power Department
Through its Commissioner and Secretary (Power)
Government of Sikkim, Gangtok – 737101
8. Jharkhand State Electricity Board
Through its Managing Director
In front of Main Secretariat,
Doranda, Ranchi – 834002 … Respondent (s)
Counsel for the Appellant(s) : Anand K. Ganesan
Swapna Seshadri
Ritu Apurva
Puneeth Ganapathy
for App. 1
Counsel for the Respondent(s) : Raj Bahadur Sharma
Mohit K. Mudgal
Sanya Sud
for Res. 2 & 3
J U D G M E N T
PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER
1. The Appellant, Power Grid Corporation of India Limited is
th st
aggrieved by the order dated 24 February, 2017 passed by 1
Respondent – Central Electricity Regulatory Commission
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Appeal No. 367 of 2019 Page 2 of 45
(hereinafter referred to as “the Commission”) whereby the
Commission, after partly condoning the time over run in
commissioning of the eight transmission assets under Eastern
Region Strengthening Scheme-III (ERSS-III) has determined tariff for
these assets for 2014-19 tariff block under the provisions of the
Central Electricity Regulatory Commission (Terms and Conditions of
Tariff) Regulations, 2014.
2. The Appellant is a Government company and is undertaking
entrusted transmission of electricity in India. It also discharges the
functions of the Central Transmission Utility as provided under the
Electricity Act, 2003.
3. The Appellant was entrusted the implementation of
transmission system associated with ERSS-III covering
establishment of seven new 400 kV sub-stations, 2 in Bihar at
Lakhisarai and Banka, 2 in Jharkhand viz. Daltonganj and Chaibasa
and 3 in Orissa viz. Bolangir, Keonjhar and Pandiabilli alongwith
extension works in 2 existing sub-stations at Sagaram and Dubri in
addition to certain transmission lines. The Investment Approval (IA)
and expenditure sanction for the transmission system was accorded
th
by the Board of Directors of the Appellant vide memo dated 7 July,
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Appeal No. 367 of 2019 Page 3 of 45
2010 at estimated cost of Rs.127280 lakhs including an IDC of
Rs.8152 lakhs.
4. As per the Investment Approval, the project was scheduled to
be commissioned within 28 months from the date of the said approval
th
i.e. by 6 November, 2012. However, the assets were commissioned
beyond the said scheduled date of commissioning with time over run
ranging from 16 months to 36 months. The scope of the work covered
under the scheme is broadly as under:-
5. “Transmission Lines:
(a) Sasaram-Daltonganj 400 kV D/C Line;
(b) Mendhasal-Uttara 400 kV D/C Line;
st
(c) LILO of Kahalgaon-Biharsharif 400 kV D/C Line (1 line)
at Lakhisarai;
nd
(d) LILO of Kahalgaon-Biharsharif 400 kV D/C Line (2
line) at Banka;
(e) LILO of Meramundali-Jeypore 400 kV S/C Line at
Bolangir;
(f) LILO of Rengali-Baripada 400 kV S/C Line at Keonjhar,
(g) LILO of one circuit of Baripada-Mendhasal 400 kV D/C
Line at Dubri (OTPCL);
(h) LILO of both circuits of Jamshedpur-Rourkela 400 kV
D/C Transmission Line at Chaibasa (out of the two LILOs
nd
bussing of one LILO at Chaibasa, the 2 LILO Would be
routed through Chaibasa but presently not bussed at
Chaibasa);
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Appeal No. 367 of 2019 Page 4 of 45
Sub-stations:
(a) 2x315 MVA, 400/220 kV sub-station at Daltonganj
(New);
(b) 2x315 MVA, 400/220 kV sub-station at Lakhisarai
(New);
(c) 2x315 MVA, 400/220 kV sub-station at Banka (New);
(d) 2x315 MVA, 400/220 kV sub-station at Bolangir (New);
(e) 2x315 MVA, 400/220 kV sub-station at Keonjhar (New);
(f) 2x315 MVA, 400/220 kV sub-station at Chaibasa (New);
(g) 2x315 MVA, 400/220 kV sub-station at Uttara (New);
(h) Extension of 400 kV Sasaram Sub-station
(POWERGRID) and 400 kV Dubri (OTPCL) and Mendhasal
Sub-station (OTPCL).”
6. The details of the assets covered in Petition No. 85 of 2015 for
which transmission tariff has been determined vide the impugned
order by the Commission is as below :-
“4. The following assets are covered in the instant petition:-
Particulars
Asset-1: Combined assets of LILO of Ckt.-1 of 400 kV D/C
Kahalgaon-Biharsharif at Lakhisarai alongwith associated
bays; 400/132 kV 200 MVA ICT-I at Lakhisarai Sub-station
alongwith associated bays; 400 kV 80 MVAR Bus Reactor
alongwith associated bays at Lakhisarai Sub-station and 2
nos. 132 kV line bays at Lakhisarai Sub-station
Asset-2: 400/132 kV 200 MVA ICT-Il alongwith associated
bays at Lakhisarai Sub-station
Asset-3: LILO of Ckt.-ll of 400 kV D/C Kahalgaon-
Biharsharif at Lakhisarai alongwith associated bays with 2
nos. of 50 MVAR line reactor
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Appeal No. 367 of 2019 Page 5 of 45
Asset-4: 2 nos. 132 Line bays at Lakhisarai Sub-station
Asset-5: LILO of one circuit of Jamshedpur-Rourkela 400
kV D/C Transmission line at Chaibasa
Asset-6: 2 nos. 220 kV Line bays at Chaibasa
Asset-7: 80 MVAR Bus Reactor alongwith associated bay at
Chaibasa Sub-station
Asset-8: 400/220 kV 315 MVA ICT-II alongwith associated
bays at Chaibasa Sub- station
7. Vide the impugned order, the Commission has partly condoned
the time over run for the subject assets which is given in the following
table:-
Table – A
Assets COD Time over-
run in
commissio
ning of
asset
Time
over-run
condoned
Time
over-run
not
condoned
Asset-1:
Combined Assets
of LILO of Circuit
1- 400 kV D/C
Kahalgaon-
Biharsharif at
Lakhisarai
alongwith
associated bays;
400/132 kV 200
MVA ICT-I at
Lakhisarai S/s
alongwith
associated bays;
400 kV 80 MVAR
Bus Reactor
alongwith
associated bays
at Lakhisarai Sub-
station and 2 nos.
132 kV line bays
01.04.2014 16 months
23 days
12
months
27 days
3 months
26 days
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Appeal No. 367 of 2019 Page 6 of 45
at Lakhisarai Sub-
station
Asset 2: 400/132
kV 200 MVA ICT-
II alongwith
associated bays
at Lakhisarai
Substation
01.06.2014 18 months
23 days
12
months
27 days
5 months
26 days
Asset- 3: LILO of
Ckt.-II of 400 kV
D/C Kahalgaon-
Bihar sharif at
Lakhisarai
alongwith
associated bays
with 2 nos. of 50
MVAR line reactor
03.09.2014 21 months
26 days
12
months
27 days
8 months
29 days
Asset- 4: 02 nos.
132 Line bays at
Lakhisarai Sub-
station
29.09.2014 22 months
21 days
12
months
27 days
9 months
24 days
Asset- 5: LILO of
one circuit of
Jamshedpur
Rourkela 400 kV
D/C Transmission
line at Chaibasa
Substation
03.12.2014 24 months
26 days
6 months
15 days
18
months
11 days
Asset-6: 02 nos.
220 kV Line bays
at Chaibasa
Substation
03.12.2014 24 months
26 days
6 months
15 days
18
months
11 days
Asset- 7: 80
MVAR Bus
Reactor alongwith
associated bay at
Chaibasa Sub-
station
26.11.2015 36 months
19 days
20
months
15 days
16
months
04 days
Asset-
8:_ 400/220 kV
315 MVA ICT-II
alongwith
associated bays
at Chaibasa
Substation
03.12.2014 24 months
26 days
6 months
15 days
18
months
11 days
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Appeal No. 367 of 2019 Page 7 of 45
8. Feeling aggrieved by refusal of the Commission to condone full
time over run and allowance of restricted IDC as well as IEDC of
Rs.677.70 lakhs, the Appellant had sought review of the impugned
order by way of Review Petition being bearing No. 26/RP/2017 which
th
also came to be dismissed by the Commission vide order dated 13
March, 2019.
9. Accordingly, the Appellant has approached this Tribunal by way
of the said appeal which primarily concerns the two sub-stations
namely Lakhisarai sub-station covering assets 1, 2, 3 & 4 as detailed
in the table extracted herein above and Chaibasa sub-station
covering assets 5, 6 7 & 8.
10. With regard to the assets 1, 2, 3 & 4, the Commission has
observed that the Appellant has failed to explain the intervening
th
period between 9 August, 2010 when it wrote to the District Land
Acquisition Officer requesting for acquisition of the land for power
nd
project and immediately next communication dated 2 December,
2010 submitted in this regard by the Appellant to the District Land
Acquisition Officer and accordingly refused to condone the said time
over run of three months and 23 days. The Commission has also
observed that the Appellant has failed to explain the period between
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Appeal No. 367 of 2019 Page 8 of 45
nd st
2 December, 2010 and 31 March, 2012 when it received the
certificate of the possession of the land and accordingly, did not
condone the time over run of 12 months on this account. The
Commission has also held that the Appellant has not submitted any
th
documentary evidence for the delay between August, 2012 and 27
May, 2013 and accordingly, has refused to condone the said period
of time over run.
11. Hence, as regards the assets 1, 2 3 & 4, the Commission has
condoned the time over run of 12 months and 27 days, the details of
which are given in the following table :-
9.8.2010
to
2.12.2010
The petitioner wrote a letter to the District Land
Acquisition Officer on 9.8.2010 and the next
letter was written on 2.12.2010 to the District
Officer requesting for land for sub-station in
Lakhisarai. The petitioner has not explained
intervening period between 9.8.2010 to
2.12.2010. Hence, the time over-run of 3 months
23 days is not condoned.
2.12.2010
to
31.3.2012
The petitioner received the certificate of
possession of land on 31.3.2012. It took 15
months 29 days to get the letter of possession of
land. Normally, land acquisition process involves
various steps like social impact assessment,
expert group appraisal, preliminary notification,
declaration to award, and award to possession
of land by collector which the petitioner is
expected to factor in the time schedule. The
petitioner has not explained the period between
2.12.2010 to 31.3.2012 and it is difficult to
assess the time taken at various stages of land
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Appeal No. 367 of 2019 Page 9 of 45
acquisition. As such, we are not inclined to
condone time over-run of 12 months on this
account. Accordingly, out of 15 months 29 days
period, 3 months 29 days is condoned.
31.3.2012
to Actual
possession
of Land i.e.
August,
2012.
Though the certificate of possession of land was
received on 31.3.2012, the actual possession of
the land was received only in August, 2012. It
took 4 months to get possession of land. During
this period, the petitioner took various steps to
get possession of land and we are of the view
that the delay in getting actual possession of land
is beyond the control of the petitioner.
Accordingly, the time delay of 4 months is
condoned.
August,
2012 to
26.9.2013
There is time over-run of 13 months 25 days. The
petitioner has not submitted any documentary
evidence for delay between August, 2012 to
27.5.2013. Hence, the period from August, 2012
to 27.5.2013 is not condonable.
The time period from 28.5.2013 to 26.9.2013 (4
months 28 days):- Regarding this period, the
petitioner has submitted two letters dated
28.5.2013 and 26.9.2013 written to District
Administration, to establish that it was pursuing
the matter. On perusal of the letter dated
26.9.2013 submitted by the petitioner, it is
observed that out of 1.5 acres of additional land
required, 0.55 acres of land was handed over in
May, 2013 and 0.95 acres of land was not
handed over to the petitioner. Hence, the time
over-run from the period 28.5.2013 to 26.9.2013
(4 months 28 days) is not attributable to the
petitioner and is condoned.
Time run
over-
condoned
Time over-run of 12 months and 27 days is
condoned in case of Assets-1, 2, 3 and 4.
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Appeal No. 367 of 2019 Page 10 of 45
12. Similarly, in respect of asset Nos. 5, 6 & 8, the Commission has
observed that the Appellant has not explained the period between
th th
27 October, 2010 to 19 May, 2011 (6 months and 27 days) and
accordingly, did not condone the same. It further observed that the
th
Appellant has failed to explain the period from 14 December, 2011
th
to 14 February, 2013 through any documentary evidence and
accordingly, refused to condone the said period of time over run.
Accordingly, the Commission condoned the time over run of 6 months
and 15 days for these asset Nos. 5, 6 & 8, the details of which are
given in the following table :-
7.7.2010 to
19.5.2011 (10
months 12 days)
Time period 7.7.2010 to 19.5.2011. The
petitioner has submitted the copy of the
correspondence made with the Deputy
Commissioner, Chaibasa vide letters
dated 25.6.2010, 22.10.2010 regarding
land acquisition for construction of
400/220 kV sub-station at Chaibasa.
Therefore, the time over-run of 3 months
15 days is condoned. However, the
petitioner has not explained the period
between 22.10.2010 to 19.5.2011 (6
Months 27 days) and hence we are of the
view that the delay 6 months 27 days is
attributable to the petitioner and hence it
is not condoned. Accordingly, out of 10
months and 12 days, 3 months and 15
days is condoned.
19.5.2011 to
22.4.2013
Time period - 19.5.2011 to 22.4.2013.
The petitioner has submitted
documentary evidence explaining the
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Appeal No. 367 of 2019 Page 11 of 45
(23 months 17
days)
action taken during the period 19.5.2011
and 20.8.2011 (3 months). Accordingly,
the time over-run of 3 months is
condoned.
The petitioner has not explained the
period from 14.12.2011 to 16.6.2012(6
months 2 days) through any evidence
and hence the time over-run of 6 months
2 days is not condoned.
The petitioner has submitted that an
agreement was signed with land owners
on 17.7.2012. However, the petitioner
has not submitted any documentary
evidence. The period from 16.6.2012 to
14.2.2013 has not been explained by the
petitioner. Hence, we are not inclined to
condone time over-run of 7 months 29
days on this account.
The time taken for acquisition of
government land i.e. up to 31.1.2013, is
subsumed in the time taken for
acquisition of private land.
Time over-run
condoned
The time over-run of 6 months and 15
days is condoned in case of Assets-5, 6
and 8.
13. In so far as asset No. 7 is concerned, the Appellant had sought
condonation of time over run of 36 months and 19 days. In this regard,
the Commission has observed that the Appellant took approximately
47 months (August 2009 to June 2013) for land acquisition and the
delay beyond Investment Approval was 10 months 16 days.
However, the Commission condoned the delay of only 6 months and
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Appeal No. 367 of 2019 Page 12 of 45
15 days due to land acquisition. The Commission also held that the
time over run of 14 months i.e. from July, 2013 to August, 2014 due
to diversion of transmission line of JUSNL was beyond the control of
the Appellant and accordingly condoned the same. Hence, the time
over run of 20 months and 15 days was condoned in respect of asset
No. 7.
14. We have heard Ms. Swapna Sheshadri, Learned Counsel for
the Appellant and Mr. Mohit K. Mudgal, learned Counsel for
Respondent Nos. 2 & 3. We have also perused the impugned order
as well as the written submissions filed by the Learned Counsels.
15. We may note that none of the other respondents have
contested the appeal.
Submissions on behalf of the Appellant :
16. Learned Counsel for the Appellant submitted that there were
various unforeseen and uncontrollable factors that caused the delay
of 16 to 22 months in the Commission of assets 1, 2, 3 & 4 at
Lakhisarai sub-station which have been overlooked by the
Commission. It is submitted that the Appellant had taken all possible
measures to minimize the time over run and had submitted
documents in this regard to the Commission explaining the delay from
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Appeal No. 367 of 2019 Page 13 of 45
nd
2 November, 2009 when the request was made to district land
acquisition officer for acquisition of land for the project to August,
2012 when the land was made available to the Appellant after
acquisition but the Commission erroneously ignored all these
documents while passing the impugned order. It was further argued
that since the physical possession of the land was obtained by the
Appellant in August, 2012 in which month the monsoon hit the area
which severely affected the execution of land filling as well as
construction of boundary wall due to water accumulation. It is
submitted that the intense rain and consequent unprecedented flood
like situation during the months of September, 2012 and October,
2012 severely hampered the construction work. It is submitted that
the rain fall data for the corresponding period obtained from Indian
Meteorological Department (IMD) was submitted along with the
original petition which has been overlooked by the Commission while
passing the impugned order. It is submitted that despite the delayed
start in October, 2012, the Appellant completed and commissioned
assets in exceptional short time frame through efficient manpower
and resource management which ought to have been considered and
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Appeal No. 367 of 2019 Page 14 of 45
given weightage while passing the impugned order by the
Commission.
17. In so far as assets 5, 6, 7 & 8 at Chaibasa sub-station are
concerned, it is argued that the Commission has not taken into
consideration the material evidence on record justifying the time over
run for commissioning of these assets and erred in holding that the
Appellant has not properly explained the reasons behind the delay in
acquisition of public land.
18. It is pointed out that the Commission has itself vide order dated
th
20 September, 2017 passed in Petition No. 278/TT/2015 which was
with regards to the balance assets at Chaibasa station condoned the
time over run due to land acquisition process but has strangely
refused to condone delay on account of same land acquisition
process in the instant case.
Submissions on behalf of Respondent Nos. 2 & 3 :
19. Per contra, it is argued on behalf of Respondent Nos. 2 & 3 that
the Investment Approval was approved by the Appellant itself in
which the Appellant claimed that the project could be finished in 28
months. As an experienced company, the Appellant must have
known all possible challenges but still proposed the said time line and,
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Appeal No. 367 of 2019 Page 15 of 45
therefore, the completion of the project was within the domain of the
Appellant. It is submitted that the Appellant took more than 48 months
for actual commissioning of the project as compared to 28 months
specified in Investment Approval for which no justifiable explanation
has been given. It is submitted that the Commission has rightly held
in the impugned order that the Appellant has failed to provide any
satisfactory explanation and documentary evidence for the significant
time over run in completion of the project within the scheduled time
frame.
20. It is further argued that the Appellant has been operating as a
transmission licensee since 1989 and hence in view of such
extensive experience, it must be conversant with the common
problems encountered during the construction of the transmission
project which include land acquisition issues, right of way, impact of
monsoon season etc. Being fully aware of such recurring challenges,
the Appellant itself decided the completion schedule of project as 28
months and hence its failure to adhere to the scheduled time frame
without any justifiable reason indicates lack of proper planning and
execution of the project.
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Appeal No. 367 of 2019 Page 16 of 45
21. Relying upon the judgement of this Tribunal in Appeal No. 281
of 2014 – Power Grid Corporation of India Ltd. vs. Central Electricity
Regulatory Commission, it is argued that the rains in the monsoon
season and consequent water accumulation at the project site are
forceable events and cannot be agitated as grounds for condonation
of time over run.
Our Analysis
As regard Asset Nos. 1, 2, 3 & 4
22. We have already noted herein above that the Commission has
condoned time over run of only 12 months and 27 days with regard
to these four assets, the details of which have been given in the table
in paragraph No. 11 hereinabove.
23. It was argued on behalf of the Appellant that there were various
unforeseen and uncontrollable factors causing the delay of 16 to 22
months in commissioning of the assets for which documents in the
form of correspondences exchanged between the Appellant and the
Government authorities were submitted to the Commission which
have been over-looked. With the help of the following table, the
Learned Counsel tried to convince us that the delay in commissioning
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Appeal No. 367 of 2019 Page 17 of 45
of these assets occasioned despite the bona-fide efforts of the
Appellant.
Date Particulars Reference page in the
Original Petition
85/TT/2015
02.11.2009 Request for
Acquisition of land
submitted by the
Appellant.
Reference letters dtd.
04.08.2010, 09.08.2010,
02.12.2010 & 15.02.2012
@Page Nos. 99, 100,
101 & 114 respectively.
24.11.2009 Demand Note for
depositing 80%
cost received.
@Page No. 98.
08.03.2010 80% land cost
deposited by the
Appellant.
Reference letter dtd.
23.02.2011 @Page No.
103
20.01.2011 Section 4
notification issued
by the State Govt.
Reference letters dtd.
21.10.2011,15.11.2011,
20.12.2011, 13.02.2012
at @Page Nos. 107, 109,
110, 113 respectively.
21.01.2011 Section 6
notification issued
by the State Govt.
23.02.2011 Letter to the
District Magistrate
to expedite the
process by
directing the
concerned
officers/employees
to send the
proposal under
sections 7 and
17(1) for
consideration of
the Government.
@Page No. 103.
02.03.2011 Meeting with LDO,
Lakhisarai with
respect to
acquisition of
38.05-acre land for
construction of
Reference @ Page No.
104.
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Appeal No. 367 of 2019 Page 18 of 45
sub-station by the
Appellant.
16.03.2011 Letter from the
Appellant to the
District Magistrate
informing that
proposal under
sections 7 and 17
(1) has been
submitted to the
Government and
requesting to
initiate other
necessary
formalities so that
after getting the
approval under
sections 7 and 17
(1) hearing under
section 9 may be
started.
@Page No. 104.
19.05.2011 Approval under
sections 7 and 17
(1) from the
Government.
@Page No. 105.
09.07.2011 Letter from the
Appellant to the
Land Acquisition
Officer to expedite
the process under
section 9
@Page No. 105.
11.07.2011 to
10.08.2011
Award made under
sections 9 and 11
Reference letter
dtd.15.02.2012 @ Page
No. 114.
24/26.09.2011 Letter from the
Appellant to the
District Magistrate
requesting to give
necessary
directions to the
concerned officers
for completing the
remaining
@Page No. 106.
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Appeal No. 367 of 2019 Page 19 of 45
procedure with
respect to land
acquisition.
21.10.2011 Letter from the
Appellant to the
District Magistrate
requesting to
expedite the
acquisition
process
@Page No. 107.
31.10.2011 Letter from the
Appellant to the
District Magistrate
requesting to take
active initiative so
that the
construction of
400/132 kV
Lakhisarai sub-
station be started
immediately.
@Page No. 108.
15.11.2011 Letter from the
Appellant to the
District Magistrate
requesting
immediate
handing over of
36.55 acre land for
construction of
400/132 kV sub-
station in
Lakhisarai
@Page No. 109.
21.11.2011 Finalization of rate Reference letter
dtd.13.02.2012 @ Page
No. 113.
20.12.2011 Letter of
pursuance to State
Govt. Authority
@Page No. 110.
30.12.2011 Letter from
Director, Land
Acquisition, Bihar
to the Collector
General,
@Page No. 111.
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Appeal No. 367 of 2019 Page 20 of 45
Lakhisarai to
expedite the
procedure of
estimation and
making of award
so that the
procedure with
respect to mutation
of the land in
favour of the
Appellant may be
ensured
immediately.
18.01.2012 Letter from the
Appellant to the
District Land
Acquisition Officer
requesting to
calculate the
estimate of total
36.55acre land to
be acquired at
60% solatium and
to take active
initiative so that the
construction of
400/132 kV
Lakhisarai sub-
station be started
immediately.
@Page No. 112.
13.02.2012 Letter from the
Appellant to the
District Magistrate
to expedite the
land acquisition
procedure and to
issue land
possession letter
to the Appellant
immediately after
starting payment of
80%
compensation.
@Page No. 113.
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Appeal No. 367 of 2019 Page 21 of 45
15.02.2012 Procedural
checklist issued by
District Land
Acquisition Officer,
Lakhisarai.
@Page No. 114-115.
15.02.2012 Preparation of final
estimate.
@Page No. 114-119.
16.02.2012 Payment demand
of Rs. 5,03,36,435
(Rupees Five crore
three lakhs thirty
six thousand four
hundred thirty five
only) raised by
Collectorate
General,
Lakhisarai
@Page No. 120.
23.02.2012 The Appellant
submitted the
demand draft for
land acquisition to
District Land
Acquisition Officer.
@Page No. 121-122.
31.03.2012 Certificate of
possession of land
issued
@Page No. 122.
August 2012 Actual possession
of land
Reference letter
dtd.13.08.2012 @ Page
No. 125.
24. The Commission, in the impugned order has refused to
th
condone the time over run of three months and 23 days between 9
nd
August, 2010 and 2 December, 2010. We concur with the decision
of this Commission on this aspect and do not find any infirmity in the
th
same. It is manifest that after writing a letter dated 9 August, 2010
to the District Land Acquisition Collector with the request for
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Appeal No. 367 of 2019 Page 22 of 45
acquisition of the land for the project, the Appellant maintained stoic
silence and did not follow up with the office of the land acquisition
officer. The immediate next letter sent in this regard by the Appellant
nd
is dated 2 December, 2010. Nothing has been brought to our notice
by the Appellant explaining the efforts made by it during the
intervening period to ensure that land acquisition process is initiated
and completed at the earliest.
25. In this regard, we also note that concededly demand note for
th
depositing 80% cost of land was received by the Appellant on 24
th
November, 2009 and the same was deposited by the Appellant on 8
March, 2010 i.e. after about 3 & ½ months which period also has
remained to be explained on behalf of the Appellant. It has no where
been stated in the memorandum of appeal or in the written
submission as why there has been so much delay in depositing the
80% cost of the land. This aspect, even though, over-looked by the
Commission, weighs against the Appellant and lends credence to the
findings of the Commission on this count.
nd st
26. With regards to the period 2 December, 2010 to 31 March,
2012 i.e. 15 months and 29 days which were consumed for
completion of the land acquisition process, the Commission has
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Appeal No. 367 of 2019 Page 23 of 45
condoned the time over run of 12 months observing that the Appellant
ought to have factored in the time schedule for land acquisition.
However, at the same time, the Commission while acknowledging
that there are various steps involved in the process of land acquisition
like social impact assessment, expert group appraisal, preliminary
notification under Section 4 of Land Acquisition Act, Declaration of
Award and finally handing over the possession of land by the
Collector, has observed that it is difficult to assess the time taken at
various stages of such process. Therefore, it is not understandable
as to how the Commission arrived at the conclusion that 3 months
and 29 days (which period has been condoned) was enough for
completion of such process. When we look at the list of dates outlining
the land acquisition process, which is not disputed on behalf of the
Respondents, we find that notification under Section 4 of the Land
th
Acquisition Act was issued on 20 January, 2011 which was followed
st
by notification under Section 6 of the Act the very next date i.e. 21
rd
January, 2011. About one month thereafter i.e. on 23 February,
2011, Appellant sent a letter to the district magistrate with the request
to expedite the process by directing the concerned
officers/employees to send the proposal under Section 7 and 17 (1)
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Appeal No. 367 of 2019 Page 24 of 45
of the Land Acquisition Act for consideration of the Government. On
nd
2 March, 2011, there was a meeting with LDO, Lakhisarai with
respect to the acquisition of 38.05 acres of land. This was followed by
th
letter dated 16 March, 2011 from the Appellant to the District
Magistrate informing him that the proposal under Section 7 & 17(1) of
the Land Acquisition Act has been submitted to the Government and
request was made to initiate other necessary formalities so that after
getting approval under Section 7 & 17(1) hearing under Section 9 may
be commenced. The Government accorded approval under Section
th
7 & 17(1) on 19 May, 2011. Thereafter, the Appellant sent letter
th
dated 9 July, 2011 to the land acquisition officer with the request to
expedite the process under Section 9. Ultimately, award under
th
Sections 9 & 11 of the Land Acquisition Act was made between 11
th
July, 2011 to 10 August, 2011. This was followed by the letters dated
th st st th
24-26 September, 2011, 21 October, 2011, 31 October, 2011, 15
st th rd
November, 2011, 21 December, 2011, 30 December, 2011, 23
st
February, 2012 and 31 March, 2012 by the Appellant to the District
Land Acquisition Officer /DM/SDM requesting them to complete the
remaining procedure with respect to land acquisition expeditiously
and to hand over the possession of the acquired land to the Appellant.
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Appeal No. 367 of 2019 Page 25 of 45
We find that all these events as well as the correspondences
exchanged by the Appellant with various government authorities for
expeditious completion of the land acquisition process have been
totally over-looked by the Commission. By no stretch of imagination
can it be said that the entire process could have been completed
within three months and 29 days as conveyed by the Commission in
the impugned order. It is evident that the Appellant was vigorously
following with the Government authorities for expeditious completion
for the land acquisition process and no part of delay in completion of
the same can be attributed to the Appellant as it was absolutely
beyond its control.
nd
27. Hence, the total period of 15 months and 29 days from 2
st
December, 2010 to 31 March, 2012 ought to have been condoned
by the Commission.
28. Now coming to the time over run of 13 months and 25 days
th
between August, 2012 and 26 September, 2013. Out of the same,
the Commission has condoned the time over run of 4 months 28 days
th th
from 28 May, 2013 to 26 September, 2013 while refusing to
th
condone the delay from August 2012 to 27 May, 2013 on the ground
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Appeal No. 367 of 2019 Page 26 of 45
that the Appellant had not submitted any documentary evidence for
such delay.
29. Undisputedly, the period between August, 2012 and October,
2012 was monsoon period. The case of the Appellant is that there
had been unprecedented flood like situation due to intense rain during
these months resulting in water accumulation at the project site
thereby hampering the execution of land filling as well as construction
of boundary wall.
30. The Commission notes in the impugned order that the
Appellant has submitted the images of rain affected area but at the
same time has observed that the Appellant has not submitted any
valid documentary evidence to substantiate that the rain and water
accumulation was abnormal. However, the Commission has
refrained from explaining what type of documentary evidence would
have been valid on this aspect in support of the contentions of the
Appellant. We note that in the petition itself, the Appellant had
submitted the rain fall data for the corresponding period from the
Indian Meteorological Department which showed that the rain fall
during September to October, 2012 was 60% higher than the
previous year 2011. This data supplied by IMD appears to have been
-------------------------------------------------------------------------------------------------------------
Appeal No. 367 of 2019 Page 27 of 45
over-looked by the Commission. In view of the images of rain-affected
area as well as the IMD data of the rain fall in the area during
September, 2012 to October, 2012, we feel of the opinion that the
period from August, 2012 to October, 2012 was condonable and the
Commission has erred in condoning the same.
31. It is not clear from the impugned order as to on which ground
the Commission refused to condone the time over run from October,
th
2012 to 27 May, 2013. It is not disputed that actual possession of
the land was handed over to the Appellant in the month of August,
2012. It was the month when monsoon hit the area and, therefore,
the work of the construction of the project was severely hampered
due to excessive rain and water accumulation at the project site. The
work could ultimately start in the month of October, 2012 only. It is
not the case of the Respondent that there was any slackness on the
part of the Appellant in the progress of work from October, 2012.
Therefore, we feel that the said period also ought to have been
condoned by the Commission.
32. Accordingly, we uphold the findings of the Commission in so far
th
as the time over run for 3 months 23 days from 9 August, 2010 to
nd
2 December, 2010 has not been condoned as regards these four
-------------------------------------------------------------------------------------------------------------
Appeal No. 367 of 2019 Page 28 of 45
assets 1, 2, 3 & 4. However, we find that the Commission has erred
in condoning the time over run of only 3 months 29 days out of 15
nd st
months 29 days from 2 December 2010 to 31 March, 2012 and is
not condoning the time over run of about 10 months from August,
th nd
2012 to 28 May, 2013. We hold that the entire time over run from 2
th
December, 2010 till 26 September, 2013 is condonable and ought
to have been condoned by the Commission. The findings of this
Commission in this regard are hereby set aside.
33. As regards the Assets 5, 6 7 & 8, there was a delay of 24 to 36
months in commissioning of these assets which is stated to be
primarily on account of delay in processing of acquisition of private
land.
34. It is argued on behalf of the Appellant that the Commission has
not taken into account the material evidence on record in this regard
and has erred in holding that the Appellant has not properly explained
the reasons behind the delay in acquisition of land. It is submitted that
the Commission has erred in not appreciating that :-
(a) Request for acquisition of approximately 40 acres of land
(≈22 acres government + ≈18 acres private) near Mauza
Anchu on the Chaibasa–Saraikela road to the Deputy
Commissioner, Chaibasa, was given on 31.08.2009
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Appeal No. 367 of 2019 Page 29 of 45
However, the land acquisition process could not proceed
due to strong objections and stiff resistance from local
villagers.
(b) Consequently, the concerned authority proposed
alternate site near village Ulijharee and sought
POWERGRID’s confirmation vide letter dated 12.08.2010
POWERGRID conveyed suitability vide letter dated
16.09.2010.
(c) Vide letter dated 07.10.2010 POWERGRID requested the
Chairman, Jharkhand Vidyut Board to help in the
allotment of said land (near Ulijharee) to it through
pursuing the matter with State Government.
(d) On 15.02.2011 / 22.02.2011, a meeting with the Principal
Secretary, Land Record Department, Jharkhand was held
wherein the Department was directed to make available
the said land to POWERGRID within a period of 2 months,
and the said direction was conveyed to the Department.
(e) In the meantime, the matter was pursued by
POWERGRID with the State Government for expeditious
acquisition of land through discussion and written/verbal
communication.
(f) Later, a meeting was held in the office of Principal
Secretary (Revenue), Government of Jharkhand on
02.06.2011, wherein it was informed that the subject land
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Appeal No. 367 of 2019 Page 30 of 45
is already identified for a different entity i.e., Rungata
Mines Limited, and therefore district authorities were
nd
requested to expedite the process of acquisition of the 2
alternative land identified by POWERGRID.”
35. Learned Counsel for the Appellant vehemently argued that the
Appellant had been actively pursuing the matter with the State
authorities but land acquisition process could not be initiated due to
reasons beyond the control of the Appellant. She would state that the
Commission has failed to appreciate the fact that though the process
of acquisition of government land and private land by the authorities
was initiated simultaneously but despite regular follow up at
difference levels of State Government, the possession of land was
handed over to the Appellant only in April, 2013.
th
36. We note that with regards to the period between 7 July, 2010
th
to 19 May, 2011 (10 months 12 days) the Commission has
th
condoned the time over run of 3 months 15 days from 7 July, 2010
nd
to 22 October, 2010. However, the Commission observed that the
nd
Appellant has not explained the period between 22 October, 2010
th
to 19 May, 2011 (6 months 27 days) and hence refused to condone
the same.
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Appeal No. 367 of 2019 Page 31 of 45
37. In this regard, we notice that a meeting with the Principal
th
Secretary, Land Record Department, Jharkhand was held on 15
nd
February, 2011 and 22 February, 2011 wherein the department was
directed to make available the land to the Appellant within a period of
nd
two months. It was in the subsequent meeting held on 2 June, 2011
in the office of Principal Secretary (Revenue), Government of
Jharkhand that Appellant was informed that the subject land is
already identified for a different entity i.e. Rungata Mines Limited and,
therefore, district authorities were requested to expedite the process
nd
of acquisition of the 2 alternative land identified by the Appellant.
Therefore, we are unable to concur with the findings of the
Commission that the Appellant has failed to explain the period from
nd th
22 October, 2010 to 19 May, 2011. It is evident that the said period
was consumed by the Government authorities in identifying the land
to be made available to the Appellant and once land was identified, it
was found to have been already marked to different entity and,
therefore, process of acquisition of alternative land was initiated.
Patently, the delay in this regard cannot be attributed to the Appellant
as it was beyond its control. In view of the same, time over-run of
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Appeal No. 367 of 2019 Page 32 of 45
th th
entire period of 10 months 12 days, from 7 July, 2010 to 19 May,
2011 ought to have been condoned.
th nd
38. With respect to the period between 19 May, 2011 to 22 April,
2013 (23 months 17 days), the Commission has condoned time over
th th
run of 3 months i.e. the period between 19 May, 2011 to 20 August,
2011 and has refused to condone the time over run of the period
th th
between 14 December, 2011 to 14 February, 2013 on the ground
that the Appellant has not submitted any documentary evidence in
this regard and has failed to explain the same. In this regard, we note
st
that vide letter dated 31 January, 2012, office of Deputy
Commissioner, West Singhbhum, Chaibasa informed the Appellant
th
that the meeting is scheduled for 4 February, 2012 under the
Chairmanship of Deputy Commissioner regarding the land
th
acquisition. Thereafter, the Appellant vide letters dated 4 May, 2012
th
and 25 May, 2012 requested for approval to publish the notification
under Section 4 of the Land Acquisition Act for acquisition of 38.86
th
acres of land. Vide letter dated 4 June, 2012, the office of Deputy
Commissioner, West Singhbhum, Chaibasa sought approval for
publication of a notification under Section 6 of the Land Acquisition
Act from the Principal Secretary, Department of Revenue and Land
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Appeal No. 367 of 2019 Page 33 of 45
Reform, Jharkhand. Permission was granted to the Appellant for land
th
acquisition on 8 June, 2012 subject to fulfillment of certain
conditions. Accordingly, notification under section 6 of the land
th
acquisition act was issued by the State Government on 16 June,
2012. It is contended on behalf of the Appellant that Jharkhand
Voluntary Land Acquisition Rule, 2010 inter alia requires agreement
with land acquisition office of Jharkhand and individual land owners
for acquisition of private land and, therefore, the Appellant was
gathering the land holding information for 38.86 acres of private land
th th
between 16 June, 2012 to 7 September, 2012 for the purpose of
execution of agreements with various land owners. Thereafter, vide
th
letter dated 7 September, 2012, District Land Acquisition Officer,
Chaibasa sought clarification from the Appellant with respect to two
agreements under Schedule II. All these documents had been
submitted by the Appellant to the Commission along with the petition
but these appear to have been over-looked by the Commission while
passing the impugned order. In these facts and circumstances, it
cannot be said that the Appellant has failed to explain the period
th th
between 14 December, 2011 to 14 February, 2013 as held by the
Commission in the impugned order.
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Appeal No. 367 of 2019 Page 34 of 45
39. We may also note that another petition bearing No.
278/TT/2015 was filed by the Appellant before the Commission
seeking determination of tariff with respect to the remaining assets at
Chaibasa station. It was disposed off by the Commission vide order
th
dated 28 September, 2017 thereby condoning the entire time over
st th
run from 31 August, 2009 till to 18 June, 2013 which was consumed
during the process of land acquisition, while holding that the same
was occasioned for the reasons beyond the control of the Appellant.
The relevant portion of the said order is extracted herein below:-
"……………………………………………………
27. The petitioner has submitted that the land acquisition
process at Chaibasa sub-station was started on
31.08.2009 but the process of land acquisition, for the
land initially identified by the petitioner near village Anchu
could not be taken up by the Government Authority due to
objections and stiff resistance of local villagers. It has
submitted that an alternate land near village Ulijharee was
suggested by the Authority and suitability of the land was
sought from the petitioner vide letter dated 12.8.2010. The
petitioner communicated the suitability of the land vide its
letter dated 16.9.2010. However, the acquisition of this
land was also delayed, since as per records of the
revenue Authority, a proposal was earlier sent by them for
acquisition of this land for M/s Rungata Mines Limited. As
a result, 2nd alternate land was to be identified and the
petitioner had to put up a fresh request for the acquisition
of the land. The procedure for acquisition of private land
under Jharkhand Voluntary Land Acquisition Rule 2010
required agreement with Land Acquisition of Jharkhand
and individual land owners also. In-spite of regular follow-
ups by the petitioner, the possession of the land could be
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Appeal No. 367 of 2019 Page 35 of 45
handed over to the petitioner after lease agreement is
signed between the petitioner and Govt. of Jharkhand on
18.6.2013. Thus, the process of land acquisition took
around 44-45 months.
………………………………………………………………."
31. We have considered the petitioner's submission with
regard to Assets 3 and 5. As regards to the land
acquisition problems, the petitioner has submitted
chronological tabulation of events/correspondences
along with documentary evidence to substantiate its
claim. Having perused the available documents, we are of
the view that the delay on account of land acquisition i.e.
period from investment Approval (2.7.2010) to lease
agreement with Government of Jharkhand (18.06.2013)
is not attributable to the petitioner. This delay is to the tune
of 1082 days.
………
33. . In view of the above deliberations, it is to conclude
that the time overrun due to land acquisition problems,
non-readiness of the downstream asset of JSEB and
diversion of JUSNL transmission line were beyond the
control of the petitioner. The petitioner has claimed delay
to the tune of 782 days and 1188 days in commissioning
of Assets 3 and 5 respectively. Thus, the entire time
overrun is being condoned due to the reasons that
cannot be attributed to the petitioner.”
(Emphasis supplied)
40. It is manifest that the project site in both the petitions was same,
the land proposed to be acquired or later on acquired was same and
the correspondences exchanged between the Appellant and the
Government authorities were same but still the Commission in one
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Appeal No. 367 of 2019 Page 36 of 45
case i.e. petition No. 278 of 2015 condoned the entire time over run
of 1082 days and refused to condone the portion of time over run in
the instant case arising out of petition No. 85 of 2015. Such
contradictory findings given by the Commission in absolutely similar
facts and circumstances is not understandable. The Commission has
failed to exhibit consistency in passing its orders which is expected of
a judicial forum. For this reason also, we are unable to sustain the
findings of the Commission in the impugned order with regards to the
asset Nos. 5, 6, 7 & 8.
41. Hence, the entire time over run from 07.07.2010 till 18.06.2013
was condonable and ought to have been condoned with regard to
Assets 5, 6, 7 & 8.
42. Learned Counsel for Respondent Nos. 2 & 3 i.e. Bihar Discoms
had referred to Regulation 12(1)(a) of the CERC Tariff Regulations,
2014 to argue that the delay attributable to land acquisition is to be
treated as “controllable factor” and, therefore, the claim of the
Appellant for condonation of time over run on this ground is without
any basis. It is submitted that once the time over run on account of
land acquisition is held to be controllable factor, no IDC or IEDC can
be allowed as per Regulation 11 of these Regulations.
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Appeal No. 367 of 2019 Page 37 of 45
43. Learned Counsel for the Appellant would argue that Regulation
12(1) of the CERC Tariff Regulations, 2014 has to be read along with
Regulation 12(2) which defines uncontrollable factors as well as the
Statement of Reasons (SoR) regarding Regulation 12 and upon
doing so the position would become clear that the delay in land
acquisition that arises out of uncontrollable factors can be considered
on case to case basis by the Commission while conducting prudence
check. Therefore, the Commission has adequate power to permit
condonation of time over run in deserving cases on account of delay
in completion of land acquisition process.
44. We find apposite to extract Regulation 11 & 12 of Tariff
Regulations, 2014 hereunder :-
“ 11. Interest during construction (IDC), Incidental
Expenditure during Construction (IEDC)
(A) Interest during Construction (IDC):
(1) Interest during construction shall be computed
corresponding to the loan from the date of infusion of
debt fund, and after taking into account the prudent
phasing of funds up to SCOD.
(2) In case of additional costs on account of IDC due to
delay in achieving the SCOD, the generating company
or the transmission licensee as the case may be, shall
be required to furnish detailed justifications with
supporting documents for such delay including prudent
phasing of funds:
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Appeal No. 367 of 2019 Page 38 of 45
Provided that if the delay is not attributable to the
generating company or the transmission licensee as the
case may be, and is due to uncontrollable factors as
specified in Regulation 12 of these regulations, IDC
may be allowed after due prudence check:
Provided further that only IDC on actual loan may be
allowed beyond the SCOD to the extent, the delay is
found beyond the control of generating company or the
transmission licensee, as the case may be, after due
prudence and taking into account prudent phasing of
funds.
(B) Incidental Expenditure during Construction (IEDC):
(1) Incidental expenditure during construction shall be
computed from the zero date and after taking into
account pre-operative expenses up to SCOD: Provided
that any revenue earned during construction period up
to SCOD on account of interest on deposits or
advances, or any other receipts may be taken into
account for reduction in incidental expenditure during
construction.
(2) In case of additional costs on account of IEDC due
to delay in achieving the SCOD, the generating
company or the transmission licensee as the case may
be, shall be required to furnish detailed justification with
supporting documents for such delay including the
details of incidental expenditure during the period of
delay and liquidated damages recovered or recoverable
corresponding to the delay:
Provided that if the delay is not attributable to the
generating company or the transmission licensee, as
the case may be, and is due to uncontrollable factors as
specified in regulation 12, IEDC may be allowed after
due prudence check: Provided further that where the
delay is attributable to an agency or contractor or
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Appeal No. 367 of 2019 Page 39 of 45
supplier engaged by the generating company or the
transmission licensee, the liquidated damages
recovered from such agency or contractor or supplier
shall be taken into account for computation of capital
cost.
(3) In case the time over-run beyond SCOD is not
admissible after due prudence, the increase of capital
cost on account of cost variation corresponding to the
period of time over run may be excluded from
capitalization irrespective of price variation provisions in
the contracts with supplier or contractor of the
generating company or the transmission licensee.
12. Controllable and Uncontrollable factors:
The following shall be considered as controllable and
uncontrollable factors leading to cost escalation
impacting Contract Prices, IDC and IEDC of the project
:
(1) The “controllable factors” shall include but shall not
be limited to the following:
(a) Variations in capital expenditure on account of
time and/or cost over-runs on account of land
acquisition issues;
(b) Efficiency in the implementation of the project
not involving approved change in scope of
such project, change in statutory levies or
force majeure events; and
(c) Delay in execution of the project on account of
contractor, supplier or agency of the
generating company or transmission licensee.
(2) The “uncontrollable factors” shall include but shall
not be limited to the following:
(i) Force Majeure events; and
(ii) Change in law.
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Appeal No. 367 of 2019 Page 40 of 45
Provided that no additional impact of time overrun or
cost over-run shall be allowed on account of non-
commissioning of the generating station or associated
transmission system by SCOD, as the same should be
recovered through Implementation Agreement between
the generating company and the transmission licensee:
Provided further that if the generating station is not
commissioned on the SCOD of the associated
transmission system, the generating company shall
bear the IDC [and IEDC] 6 or transmission charges if
the transmission system is declared under commercial
operation by the Commission in accordance with
second proviso of Clause 3 of Regulation 4 of these
regulations till the generating station is commissioned:
Provided also that if the transmission system is not
commissioned on SCOD of the generating station, the
transmission licensee shall arrange the evacuation from
the generating station at its own arrangement and cost
till the associated transmission system is
commissioned.”
45. The relevant portion of the Statement of Reasons (SoR)
regarding Regulation 12 is also material and is reproduced
hereinbelow :-
“ 14. Controllable and Uncontrollable Factors
{Regulation 12}
14.1 Clause 12 of the draft Regulations deals with the
controllable and uncontrollable factors leading to cost
escalation impacting IDC and IEDC. The first proviso
provides that no additional impact of time overrun or cost
overrun shall be allowed on account of non-
commissioning of the generating station or associated
transmission system by SCOD, as the same should be
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Appeal No. 367 of 2019 Page 41 of 45
recovered through Indemnification Agreement between
the generating company and the transmission licensee.
The second proviso provided that if the generating station
is not commissioned on the SCOD of the associated
transmission system, the generating company shall bear
the IDC or transmission charges if the transmission
system is declared under commercial operation. The third
proviso specified that if the transmission system is not
commissioned on SCOD of the generating station, the
transmission licensee shall arrange the evacuation from
the generating station at its own arrangement and cost till
the associated transmission system is commissioned.
Commission’s Views
14.5 The Commission is of the view that for the purpose
of IDC computation, it may not be appropriate to consider
the delay in land acquisition and associated activities as
uncontrollable factor as the IDC is to be computed from
the date of infusion of debt funds and typically the land is
acquired before the financial closure or before the infusion
of debt funds. In fact, the acquisition of land is also one of
the pre-disbursement conditions by Lenders for
disbursement of debt funds.
14.6 As regards the treatment of delay in execution of
project on account of contractor, supplier or agency
of the generating company or transmission licensee
as uncontrollable factor, the Commission is of the
view that all such events cannot be categorised as
uncontrollable factors, and it is the responsibility of
the Project Developer to ensure adequate provisions
with respect to delay in contracts with contractor,
supplier or any other agency. On the Force Majeure
events, the Regulations already cover natural
calamities and hence, there is no need to specifically
mention some of the natural calamities such as
earthquake, etc.
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Appeal No. 367 of 2019 Page 42 of 45
14.7 As regards delay on account of land acquisition,
arising out of Uncontrollable Factors as specified in
Regulation 12 of these Regulations, the generating
company or the transmission licensee may approach
the Commission on case to case basis with proper
documentary proof.
14.8 On the issue of capping the IDC and IEDC, the
Commission is of the view that the Regulations detail
the controllable and uncontrollable factors, which
shall be considered leading to cost escalation
impacting IDC and IEDC subject to prudence check
and hence, the capping is not required in the
Regulations. Further, some of the issues raised by the
stakeholders are related to detailed prudence check,
which will be examined by the Commission while
carrying out the prudence check.”
(Emphasis supplied)
46. It is thus clear from the perusal of Statement of Reasons
regarding Regulation 12 that delay on account of land acquisition
arising out of uncontrollable factors i.e. Force Majeure events and
Change in Law as specified in Regulation 12 can be condoned by the
Commission on case to case basis with proper documentary proof. It
cannot be said that Regulation 12(1)(a) lays down an absolute and
blanket rule to be applied mechanically that the time over run of the
project on account of land acquisition issues cannot be condoned.
Such an interpretation would be legally flawed and would be contrary
to Regulation 12(2) as well as the Statement of Reasons for
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Appeal No. 367 of 2019 Page 43 of 45
Regulation 12. Needless to say that the Commission is required to
examine the claims with regards to the time over run on account of
delay in completion of land acquisition process on case to case basis
and decide the same on the basis of documentary proof submitted by
the claimant in this regard.
47. Therefore, we do not find any force in the argument on behalf
of the Bihar Discoms that the Commission has no power to condone
the time over run which has occasioned on account of delay in land
acquisition process.
Conclusion :-
48. In the light of the above discussion and findings, we hereby
condone the time over run in commissioning of the assets under
consideration as under :-
Assets Time over-run in
commissioning
asset
Time over-run not
condoned
Time over-run
condoned
Asset-1 16 months 23
days
3 months 23 days 13 months
Asset-2 18 months 23
days
3 months 23 days 15 months
Asset-3 21 months 26
days
3 months 23 days 18 months 3
days
Asset-4 22 months 21
days
3 months 23 days 18 months 28
days
Asset-5 24 months 26
days
Nil Entire period
Asset-6
24 months 26
days
Nil Entire period
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Appeal No. 367 of 2019 Page 44 of 45
Asset-7
36 months 19
days
Nil Entire period
Asset-8
24 months 26
days
Nil Entire period
49. The case is now remanded back to the Commission for
computation of IDC and IEDC allowable to the Appellant afresh in
terms of this judgement upon obtaining requisite document from the
parties and upon according reasonable opportunity of hearing to the
parties in this regard. The Commission shall complete such exercise
within three months from the date of the receipt of the judgement.
50. The appeal stands allowed in these terms.
th
Pronounced in the open court on this 6 day of July, 2026.
(Virender Bhat) (Seema Gupta)
Judicial Member Officiating Chairperson
✓
REPORTABLE / NON REPORTABLE
js
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Appeal No. 367 of 2019 Page 45 of 45