Appellate Tribunal For Electricity
Power Grid Corporation Of Inida Limited vs Central Electricity Regulatory ... on 28 October, 2022
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
(Appellate Jurisdiction)
APPEAL NO. 15 OF 2016
Date : 28.10.2022
Present: Hon'ble Mr. Justice R.K. Gauba, Officiating Chairperson
Hon'ble Mr. Sandesh Kumar Sharma, Technical Member
In the matter of:
POWER GRID CORPORATION OF INIDA LIMITED
"Saudamini", Plot No.2,
Sector - 29, Gurgaon - 122 001 Appellant(s)
VERSUS
1. CENTRAL ELECTRICITY REGULATORY COMMISSION
3rd and 4th Floor, Chanderlok Building
36, Janpath, New Delhi - 110001
2. NTPC LIMITED.
NTPC Bhawan, Core-7, Scope Complex
7, Institutional Area, Lodhi Road
New Delhi - 110 003
3. NATIONAL HYDRO POWER CORPORATION
LTD.
NHPC Office Complex, Lodhi Road
New Delhi - 110 003
4. SATLUJ JAL VIDYUT NIGAM LIMITED
Power Project, Jhakri, Ramour,
District Shimla
Himachal Pradesh - 172 201
5. THDC INDIA LTD.
Bhairath Puram, Tehri
Uttrakhand - 249 001
NUCLEAR POWER CORPORATION OF INDIA
6. LTD.
Nabhkiya Bhawan, Anu-Shakti Naar,
Mumbai - 400 094
Appeal no. 15 of 2016 Page 1 of 9
ADHPL
7. Bhilwara Towers, A-12, Sector - 1
Noida - 201 301
ARAVALI POWER COMPANY PVT. LTD.
8. Indira Gandhi Super Thermal Power Project,
PO: Jharli, District Jhajjar,
Haryana - 124 103
JAYPEE KARCHAN HYDRO CORPORATION
9. LIMITED
Sector - 128, Noida - 201 304
EVEREST POWER PRIVATE LIMITED
10. 1st Floor, Hall-1, NBCC Tower
Bikaji Cama Place
New Delhi - 110 066
SHREE CEMENT LIMITED
11. PO Box No. 33, Bangur Nagar
Beawar - 305 901
District - Ajmer (Rajasthan)
CHANDIGARH (ELECTRICITY DEPARTMENT)
12. UT Chandigarh, Sector - 9
Chandigarh - 160 019
DELHI TRANSCO LIMITED
13. SLDC Building (Behind Jakir Hussain College)
Tagore Hostel Lane, Minto Road
New Delhi - 110 002
HARYANA VIDYUT PRASARAN NIGAM
14. LIMITED
Room No. 213, Shakti Bhawan, Sector - 6
Panchkula - 134 109, Haryana
HIMACHAL PRADESH STATE ELECTRICITY
BOARD
15. Totu, Shimla - 171 011
Himachal Pradesh
Appeal no. 15 of 2016 Page 2 of 9
POWER DEVELOPMENT DEPARTMENT
Government of J&K, Narwal Bala
16. Gladni - 180 004, Jammu
PSTCL
SLDC Building, 220 kV Sub-Station Ablowal
17. Patiala - 147 001, Punjab
Vidyut Bhawan, Jyoti Nagar
Vidyut Marg, Jaipur - 301 015,
18. Rajasthan
U.P. POWER CORPORATION LIMITED
Electricity Import-Export & Payment Circle
19. 11th Floor, Shakti Bhawan Extension
14-Ashok Mar, Lucknow - 226 01, UP
NORTHERN CENTRAL RAILWAY
Nawab Yusuf Road, Allahabad
20.
UTTARANCHAL POWER CORPORATION
LIMITED
21. Kanwali Road, Urja Bhawan
Dehradun - 248 001, Uttrakhand
POWERLINKS TRANSMISSION LIMITED
10th Floor, DLF Tower-A
22. District Centre, Jasola
New Delhi - 110 044
Respondent(s)
Counsel for the Appellant(s) : Mrs. Swapna Seshadri
Ms. Ritu Aporva
Ms. Surbhi Gupta
Counsel for the Respondent(s) : Mr. Sethu Ramalingam for R-1
J U D G E M E N T (Oral)
PER HON'BLE MR. JUSTICE R.K. GAUBA, OFFICIATING CHAIRPERSON
1. The Appellant, Power Grid Corporation of India ("PGCIL") is a government company tasked with the responsibility of Inter-State Appeal no. 15 of 2016 Page 3 of 9 transmission of electricity in the country, also discharging, at the relevant point of time, functions of Central Transmission Utility, under the Electricity Act, 2003. As part of the functions assigned to it, it was called upon to execute certain projects which included laying of fibre optic communication system in lieu of the existing Unified Load Despatch and Communication ("ULDC") Microwave links in Northern Region for tariff block 2009-14, the infrastructure thereby covered being inclusive of Asset-II (1628.966 km of Fibre Optic Communication system and Asset-III (493.064 km of Fibre Optic Communication system). The Scheduled Commercial Operation Date ("COD") of the said works was 01.10.2012. There was time over-run of 3 months and 6 months, the actual COD being 01.01.2013 and 01.04.2013 respectively.
2. The Appellant had approached the Respondent Central Regulation Electricity Commission ("CERC") by petition (No.240/TT/2013) seeking determination of annual fees and charges for fibre optic communication system in lieu of existing ULDC Microwave links in Northern Region for the 2009-14 period, praying, inter alia, for condonation of the time over-run. The Central Commission, by its order dated 01.09.2015, disallowed the said claim for condonation, the said order to that extent being assailed by the appeal at hand. Appeal no. 15 of 2016 Page 4 of 9
3. It may be mentioned here that the Appellant had also expressed grievances in this appeal over adoption of cash basis approach on the loans deployed and reduction of Interest During Construction ("IDC") up to the COD of the subject assets. However, at the hearing, the learned counsel for the Appellant submitted that the said issue has since been resolved by the appropriate order subsequently passed satisfying the claim of the Appellant in truing-up exercise.
4. The grounds on which the condonation was requested, and observations of the Central Commission thereupon, as recorded in the impugned order, read as under:
"15. As per the investment approval dated 25.3.2010, the instant assets were to be commissioned within 30 months from the date of investment approval by 24.9.2012 say 1.10.2012. The Asset-I, Asset-II and Asset-III in the instant petition have been commissioned on 1.4.2012, 1.1.2013 and 1.4.2013 respectively. Thus, there is no time over-run in the case of Asset-I but there is time over-run of 3 months and 6 months in the case of Asset-II and Asset-III respectively, in the instant petition.
16. The petitioner submitted the following reasons for delay in the case of Asset II and Asset-III:-
a. Delay due to late confirmation by UPPTCL: Initially UPPTCL did not agree to participate in the above microwave replacement project due to funding reasons Appeal no. 15 of 2016 Page 5 of 9 as UPPTCL wanted DOT to compensate for the project as Microwave Replacement was necessitated due to vacation of frequency spectrum mandate by DOT. UPPTCL subsequently confirmed it's participation in January, 2011 and asked the petitioner to take up the work, i.e. 10 months after the award of the package. Out of 4488 km of the OPGW length, UPPTCL's share was 2039 km (almost 45%) thus causing substantial delay to the project.
b. Delay due to inclusion of PTCUL: Initially PTCUL was not part of the Project but was included in the project as per decision of NRPC in the month of September, 2011. c. Delay due to heavy foggy condition: During the installation of the OPGW, almost 4 months i.e. from Mid December, 2011 to Mid February, 2012 and Mid December, 2012 to Mid February, 2013 were lost due to heavy foggy conditions. As OPGW installation work is carried out in live line condition, it is not safe to work as lines have tripped on many occasions due to failure of T&P on account of fog.
17. We have considered the submissions of the petitioner and also pursued the letters dated 17.4.2010, 31.4.2010 and 2.1.2011 submitted by the petitioner. As regards the initial refusal of UPPTCL's, it has already been dealt by us in order dated 8.12.2011 in Petition No. 68/2010 wherein it was clarified if the state portion is not being implemented by UPPTCL separately, the same shall be implemented by the petitioner and UPPTCL would be required to share the tariff in proportion to the assets being utilized by it. We have also noted that some portion of UPPTCL optic fibre (235.153km) was commissioned on 1.4.2013. It was made clear in the said order that the timeline for replacement of the digital microwave by optical fibre should be strictly complied with.
18. Asset-II includes State portion of PSEB-304.62 km, BBMB- 3.16 km, RRVPNL-451.45 Km, HVPNL-2.884 km and UPPTCL 630.13 km and Asset-III includes State portion of RRVPNL-47.177 km and PSEB-68.029 km also apart from UPPTCL-235.153 km. There is delay in commissioning of Appeal no. 15 of 2016 Page 6 of 9 both Asset-II and Asset-III i.e. comprising of RRVPNL and PSEB's portions. The petitioner has not submitted any documentary evidence in regard to delay caused in commissioning of optic fibre network of other constituents included in Asset-II and Asset-III. The Commission has further noted that though PTCUL was not a part of the project initially but was included in the project as per the decision of NRPC and the request of PTCUL, by the petitioner. However, the petitioner has not installed optic fibre for PTCUL in the instant petition but only Battery Bank and charger have been considered for existing communication system for PTCUL.
19. As regards the fog in Northern Part of India adversely affecting various services like transportation and communication and that demobilizing and re-mobilizing of manpower due to this intermittent condition at regular intervals also affected the progress of the work for which the petitioner has also submitted the extracts of log book for 58 days maintained by control room indicating the condition of fog in various parts of Northern Region. We are of the view that foggy conditions during winter season is a normal phenomenon in parts of Northern Region and that the impact of fog could not be so much that the work of laying OPGW was held up for entire 2 months, both in 2011-12 and 2012-
13. Therefore, we are not inclined to condone the delay of 3 months and 6 months in commissioning of both Asset-II and Asset-III respectively."
5. Having heard the learned counsel for the parties, we find the approach of the Central Commission in dealing with the explanations offered for delay to be incorrect, unjust and unfair.
6. The Central Commission has failed to appreciate that UPPTCL had not been willing to take up the implementation of Microwave Appeal no. 15 of 2016 Page 7 of 9 replacement project due to funding reasons since it desired the department of tele-communication to provide the compensation. The survey was thus carried out in the State of Uttar Pradesh by the Appellant without participation by UPPTCL. It was only in January, 2011, good ten months after the award of the package, that UPPTCL took an about turn and confirmed its participation this, inter alia, necessitating repetition of the exercise of survey, having the ripple effect of reducing the optimization of manpower, causing delay in implementation of the project, several new links having consequently being introduced compelling a change of plan. It cannot be ignored that the share of UPPTCL to the extent of 2039 km was substantial, it being 45% of the total project length of 4848 kms.
7. It is not in dispute that PTCUL was initially not part of the project. It was included only in March 2011, agreement relating to financial terms having been finalized even later in September, 2011.
8. The Central Commission has unfairly short-shifted the ground of foggy conditions. On facts there was no contest. The observations that impact of fog could not be so much that the work would be held up for entire period of 2 months is rather vague. The Commission failed to take into account the explanation that the assigned work Appeal no. 15 of 2016 Page 8 of 9 had to be carried out in "live line condition" it being not safe to execute the task in the foggy conditions since line would trip due to failure of the connected systems.
9. For the foregoing reasons, we are unable to uphold the view taken by the Central Commission on the subject of condonation of time over-run of 3 months and 6 months in relation to Asset-II and Asset- III respectively. We vacate the impugned order to such extent and allow the prayer of the Appellant for condonation.
10. The Central Commission is directed to pass consequential orders in light of the above decision.
11. The Appeal is disposed of in above terms.
PRONOUNCED IN THE OPEN COURT ON THIS 28th DAY OF OCTOBER, 2022 (Sandesh Kumar Sharma) (Justice R.K. Gauba) Technical Member Officiating Chairperson mk/nr Appeal no. 15 of 2016 Page 9 of 9