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r) The contention of the APL that the GUVNL in collusion with the GETCO had recommended and forced the use of Mundra-Dehgam line of the APL for evacuation of GUVNL's Contracted Capacity and prevented the APL power to evacuate its surplus power from Units 1to 6 or from Unit 7 is frivolous and for the GUVNL or the GETCO to compulsory use the Mundra-Dehgam line for evacuation of the power from the Contracted capacity. So long as the power to the GUVNL up to the Contracted capacity is made available, the GUVNL had no objection for the use of GETCO lines for evacuation of surplus power which the APL is entitled to sell to others. The APL had commenced injection of power for supply to the GUVNL on its own and even before the filing of the proceedings before the State Commission on 16.3.2011. Similarly, the APL had injected power for supply to GUVNL from Unit No.6 also from August 2011. Thus, there was actual injection into the system and evacuation of the same even before the Mundra-Zerda Line is commissioned. From 1.3.2011 the APL had injected 500 MW of power on the existing available line of GETCO on a regular basis and the same has been taken delivery of by the GUVNL. This process continued up to 8.11.2011 when the impugned order was communicated. Since 2.3.2012 and 3.3.2012, the APL has been supplying power to GUVNL from Unit No.5 and 6 respectively, with the same transmission capacity of GETCO existing as on March-2011 (maximum flow of 1780 MW on GETCO lines) and there has been no constraint in regard to the same. The Mundra-Zerda Line has not been commissioned till the above time. In the circumstance, non-availability of Mundra-Zerda transmission line is wrong and without merit.

At no point of time the provision of Article 6.4 can be obliterated. Article 6.4 to be read with 6.2.6 must not be beyond the SCOD. Again, clause 3.4.1 of the RFP is consistent with the different relevant Articles of the Power Purchase Agreement. Here also the seller has been mandated to achieve the SCOD of the entire Contracted Capacity within 60 months from the date of signing of the PPA. Furthermore, in RPF, clause 3.4.2., a bidder may offer SCOD for whole or part of the capacity offered before expiry of 60 months from the date of signing of the PPA. The bidder in that case has to declare such schedule at the time of bid submission. Thus a bidder can provide unit wise time schedule for commencing supply of the Contracted Capacity. Under clause 3.4.3 of the RPF when the COD of any unit is achieved by the procurer the same would be subject to availability of the Gujarat STU to evacuate power from the delivery point. It is not in dispute that the evacuation facility by the STU was not made ready from the delivery point .In a word, the legal obligation commences from the SCOD which means COD of all the units, and which means COD in relation to the entire Contracted Capacity. Thus construed, the legal obligation on the part of the APL commences 60 months from the effective date which is 2.2.2012. Article 14 of Power Purchase Agreement is also helpful in this regard. That this was the intention of the parties would be clear from the GUVNL's letter dated 9.11.2011 addressed to the GETCO wherein GUVNL reminds the GETCO with the words "Further, it is pertinent to mention that the Scheduled Commercial Operation Date (SCOD) for 1000 MW contracted capacity under bid specification no.02/LTPP/2006 from the APL Power Ltd. (APL) is 1st February, 2012 ......" Again, the GUVNL's letter to GETCO dated 16.4.2007 reminds the GETCO that the 'Scheduled Commercial Operation Date in relation to Unit No.1 and Unit No.2 would be 60 months from 2.2.2007'.

18.. The next question that arises for consideration, though not of too much importance at this moment, but has assumed relevance because of the point having been raised by the respondent No.2 in great details, is whether there was identification of a particular transmission line and whether such transmission line meant for evacuation of power from the APL's generation project was ready and available to the APL prior to SCOD. The Commission observed not unjustifiably in the impugned order that the obligation under the Power Purchase Agreement on the part of the APL is subject to Gujarat State Transmission Utility's ability to evacuate power from the delivery point, and when the Commission was hearing the matter, the 400 KV DC Mundra-Zerda line was yet to be completed but according to the learned advocate for the appellant, the alternative lines namely 220 KV Mundra- Nanikhakhar D/C, 220 KV Mundra-Tapper D/c, 400 KV Mundra-Versana-Hadala D/C transmission lines of GETCO and 400 KV Mundra-Dehgam D/C line of the APL were available for evacuation of power. Mr. M.G. Ramachandran argued that the Power Purchase Agreement or any other document does not stipulate that for the power to be evacuated, it was only the 400 KV D/C Mundra-Zerda transmission lines that alone were to be used and no other line was open for evacuation to the APL. Since the power is to be delivered by the APL at the bus bar of the Mundra generating station, the APL is not concerned with which particular transmission line supply to GUVNL should be made. Mr. Ramachandran has in his written note of argument given a schematic diagram in support of his contention. A chart has also been given in the written note of argument showing the maximum injection of power month-wise in any time block with scheduling to GUVNL and the APL's power surplus and also the maximum supply at any time block month wise to GUVNL from units 1-6 during the period from March, 2011 to January, 2012 in order to show that the existing transmission capacity of the GETCO excluding the Mundra-Dehgam Line of the APL Power was sufficient for evacuation of quantum of power declared available by the APL to GUVNL. This argument, of course, admits the fact that Mundra-Zerda line of GETCO was not ready for evacuation of power from the APL to GUVNL. It is argued that since 2.3.2012 and 3.3.2012, the APL has been supplying power to GUVNL from unit no.5 and 6 respectively, with the same transmission capacity of GETCO existing as in March-2011 (maximum flow of 1780 MW on GETCO lines) and there has been no constraint in regard to the same. The Mundra-Zerda Line has not been commissioned till the above time. Now, it is true that in terms of Article 4.2 (a) and (c) of the Power Purchase Agreement, the GUVNL had responsibility to make all necessary arrangements for evacuation of power. It cannot be disputed that the GUVNL had itself intended Mundra-Zerda line for evacuation of power under bid no.2 from unit no.5 & 6 and on 10.11.2007, GUVNL wrote to the APL concerning progress report of the implementation of the evacuation facilities. The Commission upon the petition of the GETCO being Petition No.936 of 2008 concerning approval of RFQ has made it clear in its order dated 17.11.2008 that the line identified by GETCO / GUVNL for procurement of power from the APL under Bid No.2 is the Mundra-Zerda transmission line and the 220 KV Mundra-Nanikhakhar was not the appropriate delivery point for evacuation of 2000 MW from the APL. Then, followed several progress reports dated 20.1.2009 and 29.6.2010. GUVNL's letter to GETCO dated 7.9.2011 concerning evacuation of power emphasizes upon the utmost priority for commissioning the 400 KV Mundra-Zerda D/C line. By letter dated 25.10.2011, the Commission forwarded a minute of the meeting dated 16.11.2011 urging the GETCO to ensure commissioning of the evacuation projects. Now, GUVNL's letter to GETCO dated 9.11.2011 which we have mentioned earlier is very pertinent in two respects. Firstly, this letter acknowledges the situation that in respect of bid no.2, the APL's obligation to supply power in respect of 1000 MW would start from 1.2.2012 which is the SCOD and secondly it urges the GETCO to arrange for the evacuation line. Then, by a letter dated 24.1.2012, it has been mentioned that there has been a change in the Schedule of completion of 400 KV Mundra-Zerda DC line from February, 2012 to September, 2012 and the GETCO should expedite the construction. In the APL's letter to the GUVNL dated 20.2.2007, the APL had earlier informed that they have carried out all the preliminary works relating to Mundra-Nanikhakhar transmission lines and as regards the providing of inter-connection between APL generating bus and Nanikhakhar- State Transmission Utility, the agreed delivery point, the route lengths involved in laying of each of 400 KV as well as 220 KV transmission lines are about 18-20 KMs only. Similarly, requirement of substation equipment would also be limited one and as such they were very confident to complete the inter-connection between generating bus and delivery point well before commissioning of power stations. Again, the GUVNL's letter to the GETCO dated 16.4.2007 had made the GUVNL aware that the SCOD would be 60 months from 2.2.2007 and augmentation of the line on the part of the GETCO would be necessary. There are correspondences also between the APL and GETCO dated 6.7.2009, 16.7.2009, 18.1.2010 & 27.9.2010 that made it clear that it was the Mundra-Zerda Line II which was intended by the GUVNL to be arranged for evacuation of power from the APL. But, the erection of the line was kept in abeyance for a period of 8 months. On 11.12.2010, the State Load Despatch Centre requested the APL to backdown generation in view of grid security, while on 17.3.2011, GUVNL wrote to GETCO reminding that the delay in commissioning the evacuation system would have financial implications on the part of GUVNL.On 31.5.2011, the State Load Despatch Centre communicated to the APL that because of network constraints evacuation in respect of unit no. 6 might not be done. Then, the two correspondences between the GUVNL and the APL and vice-versa will be relevant. On 20.6.2011, APL wrote to the GUVNL inter alia stating that Mundra-Dehgam line was not meant for supplying power under bid no. 1 and 2 and the transmission constraints exist in spite of there being available spare transmission capacity of the APL's Mundra-Dehgam dedicated transmission line. This letter was replied to by the GUVNL to the APL stating that the actual quantum of power flow on 400 KV Mundra-

Dehgam D/C line is less when compared to its thermal capacity. Therefore, the understanding of APL that though there is spare capacity of 400 KV Mundra-Dehgam D/C line, the State Load Despatch Centre was depriving APL of using the spare capacity is not correct. The letter further says "moreover, the power system operation is based on integrated available network and not on any specific contract path method as contemplated by M/s APL." Meanwhile, correspondences were exchanged for a number of times, say, by letters dated 5.7.2011, 15.7.2011 etc. between GUVNL and GETCO whereby the GUVNL continued to remind the GETCO of the necessity of expediting the transmission line meant for evacuation of power from the APL. On 1.8.2011, GETCO wrote to the APL that as there was evacuation problem and as GUVNL had sought some clarification the State Load Despatch Centre was not consenting to the commissioning unit no. 6. On 3.2.2012, the APL wrote to the GUVNL declaring 3.2.2012 as commercial operation date in respect of unit no.6 identified under the Power Purchase Agreement. On 8.2.2012, the APL wrote to the Central Electricity Authority in these lines "keeping in view substantial delay in completion of 400 KV D/C Mundra-Zerda lines (I & II) and to avoid bottling of power, another studies, in which Centre Transmission Utility, Central Electricity Authority, WRPC, WRLDC, GETCO / State Load Despatch Centre, Gujarat & Adani were associated, were carried out in August, 2011 to enhance power evacuation on existing lines (copy enclosed. Based on these studies, it was found that power up to 2400 MW (without N-1 criteria) can be transmitted as an interim arrangement till such time Mundra-Zerda lines are commissioned by providing special measures. Since then all the arrangements as suggested in studies have been implemented. In view of the above submission and to plan optimum generation / sale of power, we would seek Central Electricity Authority advice on transfer of power through Mundra-Dehgam line".On 9.2.2012, the Central Electricity Authority by communication approved this arrangement to the APL. So far, this is the last correspondence. Of course, GETCO wrote to the APL on 23.4.2012 complaining that the APL was generating power beyond schedule.