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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • None,
  • Ms. Swapna Seshadri, Advocate, PGCIL, Shri Aditya H. Dubey, Advocate, PGCIL, Shri S.S. Raju, PGCIL, Shri D.K. Biswal, PGCIL, Shri A.K. Verma, PGCIL, Shri V.P. Rastogi, PGCIL, for Review Petitioner;
Judges
  • P.K. Pujari
  • Chairperson
  • I.S. Jha, Member
Acts
  • ORDER 47 RULE 1 CIVIL PROCEDURE CODE 1908
  • Section 94(1)(f) of the Electricity Act, 2003, read with Regulation 103 of the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • None,
  • Ms. Swapna Seshadri, Advocate, PGCIL, Shri Aditya H. Dubey, Advocate, PGCIL, Shri S.S. Raju, PGCIL, Shri D.K. Biswal, PGCIL, Shri A.K. Verma, PGCIL, Shri V.P. Rastogi, PGCIL, for Review Petitioner;
Judges
  • P.K. Pujari
  • Chairperson
  • I.S. Jha, Member
Acts
  • ORDER 47 RULE 1 CIVIL PROCEDURE CODE 1908
  • Section 94(1)(f) of the Electricity Act, 2003, read with Regulation 103 of the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999.
See more information ...
Smart Summary

Factual and Procedural Background

Power Grid Corporation of India Limited (PGCIL/Review Petitioner) filed Review Petition No. 32/RP/2020 under Section 94(1)(f) of the Electricity Act, 2003 read with Regulation 103 of the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 seeking review and modification of the Commission's order dated 17.8.2020 in Petition No. 107/TT/2017.

Petition No. 107/TT/2017 concerned truing up and tariff determination for a set of transmission assets associated with "Parbati-III-HEP" (described in the opinion as Asset-1 through Asset-4, including lines, LILOs and a bus reactor). The Commission's order dated 17.8.2020 disallowed time over-run and, accordingly, disallowed Interest During Construction (IDC) and Incidental Expenditure During Construction (IEDC) for Asset-3 and Asset-4, observing that time over-run in respect of corresponding elements in an earlier petition (Petition No. 91/TT/2012) had not been condoned.

Procedural history relevant to the review petition (as recorded in the opinion):

  • PGCIL initially filed Petition No. 91/TT/2012 for four transmission assets (Assets I–IV) for 2009-14 tariff period. The Commission by order dated 26.5.2015 approved tariff for Asset-I and Asset-III but did not allow tariff for Asset-II (portion not utilized) and treated Asset-IV as commissioned in 2014-19 tariff period (separate petition). Time over-run was expressly condoned only for Asset-I and Asset-III in that order.
  • NHPC sought review (Review Petition No. 25/RP/2015) and the Commission recalled part of its 26.5.2015 order; Petition No. 91/TT/2012 was re-heard and an order dated 21.7.2016 issued addressing sharing of transmission charges but not time over-run for Asset-II/IV.
  • PGCIL filed Review Petition No. 19/RP/2015; by order dated 7.9.2016 the Commission approved COD for part(s) of Asset-II (portion c-d-e-f) as 1.9.2013 and directed submission of cost details; this order did not address time over-run of Asset-II.
  • APTEL remitted aspects of Petition No. 91/TT/2012 by judgment dated 16.7.2018. The Commission re-considered the matter and issued an order dated 5.2.2020 which, in its introductory paragraph, stated that a 42-month time over-run existed in Assets I, II and III and that the over-run was beyond the Petitioner's control; the opinion characterizes that introductory remark about Asset-II as inadvertent and not a finding addressing time over-run for Asset-II.
  • PGCIL then filed Petition No. 107/TT/2017 (leading to the 17.8.2020 order) and, aggrieved by disallowance of IDC/IEDC for Asset-3 and Asset-4, filed the present review petition seeking condonation and consequential tariff relief. The Commission heard the review petition and dismissed it at the stage of admission by order dated 31.03.2022.

Legal Issues Presented

  1. Whether the Commission erred in observing that time over-run in respect of Asset-3 and Asset-4 (components carved out from portions of Asset-II of Petition No. 91/TT/2012) was not condoned in earlier proceedings, thereby disallowing IDC and IEDC in Petition No. 107/TT/2017.
  2. Whether the Review Petitioner has made out any of the grounds for review under Order 47 Rule 1 of the Civil Procedure Code, 1908 (i.e., discovery of new evidence, mistake or error apparent on the face of record, or any other sufficient reason) to justify review of the 17.8.2020 order in Petition No. 107/TT/2017.

Arguments of the Parties

Review Petitioner’s Arguments

  • PGCIL submitted that justifications and affidavit material concerning delay and time over-run for the set of transmission assets had already been filed in Petition No. 91/TT/2012 (and related petitions) and that the Commission in its order dated 26.5.2015 and later in the reconsideration dated 5.2.2020 had condoned a 42-month delay in respect of the transmission assets on grounds such as land acquisition and forest/tree-cutting permissions.
  • It contended that the reasons for time over-run were common across the transmission assets and had been accepted by the Commission for Asset-I and Asset-III; therefore, time over-run in respect of parts of Asset-II (now Asset-3 and Asset-4) should also be treated as condoned.
  • PGCIL argued that it had relied on previous submissions and affidavits and that the Commission had not sought any fresh clarifications in Petition No. 107/TT/2017; accordingly, disallowing the claim on grounds that no fresh documents were filed was improper. PGCIL placed reliance on APTEL precedents (NTPC Ltd. v. CERC and D.B. Power Ltd. v. CERC) in support of this contention.
  • It emphasized that denial of time over-run and associated IDC/IEDC would have an adverse cascading impact on capital cost and tariff elements, invoking settled principle (cited authority: Maharashtra State Power Generation Co. Ltd. v. MERC) that cost over-run due to time over-run beyond the control of the licensee is allowable.
  • PGCIL sought review to allow full IDC and IEDC for Asset-3 and Asset-4 with consequential recalculation of capital cost and tariff.
  • The record in the opinion also records that during hearing PGCIL's counsel reiterated the written submissions and sought allowance of time over-run and associated costs.

Note: The opinion records "For Respondents : None" in the cause list and does not record any detailed arguments advanced by the respondents in the review proceedings.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
NTPC Ltd. v. Central Electricity Regulatory Commission and Ors., judgment dated 9.5.2019 (Appeal No. 125 of 2017) Cited by the Review Petitioner to support the proposition that the Commission ought not to have rejected a claim for time over-run on the basis that fresh documents were not filed when prior submissions had been made and no clarification was sought. The Commission noted that the Review Petitioner relied on this APTEL judgment. The opinion does not adopt the precedent as a basis for admission; the reliance was not found sufficient to establish grounds for review.
D.B. Power Ltd. v. Central Electricity Regulatory Commission and Ors., dated 15.5.2020 (IA No. 129 of 2019 in Appeal No. 253 of 2018 and IA No. 1515 of 2019) Cited by the Review Petitioner similarly to support the argument that the Commission should have sought clarifications or should not have rejected claims when prior justifications had been filed. The Commission recorded that the Review Petitioner placed reliance on this judgment. The opinion does not apply it to admit the review; reliance on it did not persuade the Commission to allow the review petition.
Maharashtra State Power Generation Co. Ltd. v. Maharashtra Electricity Regulatory Commission, decision dated 27.4.2011 (Appeal No. 72 of 2010) Cited for the settled principle that cost over-run due to time over-run beyond the control of the licensee should be allowed (i.e., justification for allowance of IDC/IEDC where delay was beyond control). The Review Petitioner invoked this authority to support its claim for allowance of costs occasioned by time over-run. The Commission recorded the reliance but found that the Review Petitioner had not shown that the relevant parts (Asset-3 and Asset-4) had been previously condoned; the precedent was not applied to admit the review.
Appellate Tribunal for Electricity (APTEL) judgment dated 16.7.2018 (in Appeal No. 281 of 2016 and Appeal No. 81 of 2017) Cited as the judgment by which Petition No. 91/TT/2012 was remitted to the Commission for fresh consideration; formed the basis for the Commission's re-consideration (order dated 5.2.2020). The Commission's re-consideration pursuant to this remand led to an order dated 5.2.2020. The Review Petitioner relied on that subsequent Commission order to argue that time over-run for various assets (including parts of Asset-II) had been condoned. The Commission, however, treated the reference to Asset-II in paragraph 4 of the 5.2.2020 order as an inadvertent introductory remark and not as a finding condoning time over-run for Asset-II.
APTEL order dated 2.7.2012 in Appeal No. 123 of 2011 Referred to in the Commission's 26.5.2015 order to explain that a portion of LILO circuits of Asset-II could not be put to trial operation because the Koldam switchyard had not been commissioned. The Commission relied on the cited APTEL order (as reflected in its earlier reasoning) to justify non-grant of tariff for Asset-II in the 26.5.2015 order. The present opinion reiterates that principle in holding that Asset-II was not considered for tariff at that stage because it was not in use.

Court's Reasoning and Analysis

The Commission's analysis followed a chronological examination of prior proceedings and the materials on record. The key points of the reasoning, drawn verbatim from the opinion's analysis, are:

  1. The Review Petitioner’s principal contention was that justifications for time over-run for the relevant transmission assets had already been submitted in Petition No. 91/TT/2012 (and related filings), and therefore the Commission had previously condoned the common 42-month delay; accordingly, the Review Petitioner argued that it was entitled to IDC/IEDC for Asset-3 and Asset-4.
  2. The Commission examined its earlier orders:
    • Order dated 26.5.2015 in Petition No. 91/TT/2012: tariff and condonation of time over-run were granted only for Asset-I and Asset-III; the order explicitly did not grant tariff for Asset-II because a portion of the LILO circuits was not being utilized (Koldam switchyard not commissioned), and Asset-IV was treated as covered by a separate petition for the 2014-19 period.
    • Order dated 21.7.2016: this hearing was limited to the question of NHPC's liability for sharing transmission charges and did not address time over-run for Asset-II and Asset-IV.
    • Order dated 7.9.2016 in Review Petition No. 19/RP/2015: this order approved COD for parts of Asset-II (portion c-d-e-f) as 1.9.2013 and directed submission of cost details for tariff determination; it did not deal with time over-run of Asset-II or its parts.
    • Order dated 5.2.2020 (on remand pursuant to APTEL): paragraph 4 contained an introductory remark that there was a 42-month time over-run in Assets-I, II and III and that it was beyond the Petitioner's control. The Commission treated this statement as an introductory/background remark and not as a considered finding that time over-run for Asset-II had been condoned; the opinion characterizes the inclusion of Asset-II in that sentence as inadvertent.
  3. The Commission applied the standard grounds for review under Order 47 Rule 1 CPC: (a) discovery of new and important matter or evidence not within knowledge at the time of the order, (b) mistake or error apparent on the face of the record, or (c) any other sufficient reason.
  4. On facts, the Commission found that the Review Petitioner had not presented any new facts that were unknown or unavailable at the time the 17.8.2020 order was passed. The Review Petitioner had been in possession of the same materials and had not demonstrated any error apparent on the face of the record or any other sufficient cause warranting review.
  5. The Commission noted that the issue presently under review (time over-run for portions c-d and e-f of former Asset-II, now Asset-3 and Asset-4) had not been considered and condoned in the earlier orders relied upon by the Review Petitioner. Specifically, the Commission emphasized that the earlier orders either did not address time over-run for those parts or addressed different issues (such as COD or NHPC’s liability), and therefore there was no prior condonation that could be carried forward to Petition No. 107/TT/2017.
  6. The Commission concluded that the Review Petitioner failed to demonstrate any ground under Order 47 Rule 1 CPC to merit review. The introductory reference to Asset-II in paragraph 4 of the 5.2.2020 order was not a finding condoning time over-run for Asset-II; consequently, the Review Petition did not succeed in showing that the Commission had erred in the 17.8.2020 order.

Holding and Implications

Holding: The Review Petition No. 32/RP/2020 is DISMISSED at the stage of admission. The petition is disposed of accordingly (order dated 31.03.2022).

Implications:

  • Direct effect on the parties: The Review Petitioner’s request to condone time over-run for Asset-3 and Asset-4 and to allow full IDC and IEDC for those assets is denied. The Commission upheld its earlier approach in Petition No. 107/TT/2017 to disallow IDC/IEDC for the relevant assets on the recorded basis that time over-run for those parts had not been condoned in earlier proceedings.
  • Broader precedent: The opinion does not announce a new legal principle. The Commission focused on established review grounds under Order 47 Rule 1 CPC and on the factual/record-based question whether condonation of time over-run had previously occurred for the specific parts now in issue. The opinion expressly characterizes a reference in a prior order as an inadvertent introductory remark and not as a finding that would support the Review Petitioner’s case.

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    Power Grid Corporation Of India Limited Review v. Rajasthan Rajya Vidyut Prasaran Nigam Limited And Others (S).

    CENTRAL ELECTRICITY REGULATORY COMMISSION

    New Delhi

    Review Petition No. 32/RP/2020 in

    Petition No. 107/TT/2017

    Coram:

    Sh. P. K. Pujari, Chairperson Sh. I. S. Jha, Member

    Date of Order: 31.03.2022

    In the matter of:

    Review Petition under Section 94(1)(f) of the Electricity Act, 2003 read with Regulation 103 of the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999, seeking review of the order dated 17.8.2020 in Petition No. 107/TT/2017.

    And in the matter of:

    Power Grid Corporation of India Limited, „SAUDAMINI", Plot No-2, Sector-29, Gurgaon-122001 (Haryana). .....Review Petitioner Versus

    1. Rajasthan Rajya Vidyut Prasaran Nigam Limited, Vidyut Bhawan, Vidyut Marg,

    Jaipur-302005 (Rajasthan).

    2. Ajmer Vidyut Vitran Nigam Limited, 400 kV GSS Building (Ground Floor), Ajmer Road, Heerapura,

    Jaipur (Rajasthan).

    3. Jaipur Vidyut Vitran Nigam Limited, 400 kV GSS Building (Ground Floor), Ajmer Road, Heerapura,

    Jaipur (Rajasthan).

    4. Jodhpur Vidyut Vitran Nigam Limited, 400 kV GSS Building (Ground Floor), Ajmer Road, Heerapura,

    Jaipur (Rajasthan).

    5. Himachal Pradesh State Electricity Board, Vidyut Bhawan, Kumar House Complex Building-II, Shimla-171004 (Himachal Pradesh).

    Page 1 of 19

    6. Punjab State Power Corporation Limited, (Formerly Punjab State Electricity Board), Thermal Shed Tia, Near 22 Phatak, Patiala-147001 (Punjab).

    7. Haryana Power Purchase Centre, Shakti Bhawan, Sector-6, Panchkula-134109 (Haryana).

    8. Power Development Department, Government of Jammu & Kashmir, Mini Secretariat,

    Jammu-180001.

    9. Uttar Pradesh Power Corporation Limited, (Formerly Uttar Pradesh State Electricity Board), Shakti Bhawan, 14, Ashok Marg,

    Lucknow-226001(Uttar Pradesh).

    10. Delhi Transco Limited,

    Shakti Sadan, Kotla Road, New Delhi-110002.

    11. BSES Yamuna Power Limited, B-Block, Shakti Kiran, Building, Karkadooma 2nd Floor,

    New Delhi-110092.

    12. BSES Rajdhani Power Limited, BSES Bhawan, Nehru Place, New Delhi-110019.

    13. Tata Power Delhi Distribution Limited, NDPL House, Hudson Lines Kingsway Camp, Delhi-110009.

    14. Chandigarh Administration, Sector-9,

    Chandigarh-160009.

    15. Uttarakhand Power Corporation Limited, Urja Bhawan, Kanwali Road,

    Dehradun-248 001 (Uttarakhand).

    16. North Central Railway,

    Allahabad (Uttar Pradesh).

    17. New Delhi Municipal Council, Palika Kendra, Sansad Marg, New Delhi-110002.

    Page 2 of 19

    18. NHPC Limited, NHPC Office Complex, Sector-33, Faridabad, Haryana-121003.

    19. Parbati Koldam Transmission Company Limited, 5th Floor, JMD Galleria, Sohna Road, Sector 48, Gurgaon-122018. …..Respondent(s) For Review Petitioner : Ms. Swapna Seshadri, Advocate, PGCIL Shri Aditya H. Dubey, Advocate, PGCIL

    Shri S. S. Raju, PGCIL

    Shri D. K. Biswal, PGCIL

    Shri A. K. Verma, PGCIL

    Shri V. P. Rastogi, PGCIL

    For Respondents : None

    ORDER

    Powergrid Corporation of India Limited (hereinafter referred to as "PGCIL/Review Petitioner) has filed the present Petition No.32/RP/2020 seeking review and modification of the order dated 17.8.2020 in Petition No. 107/TT/2017 under Section 94(1)(f) of the Electricity Act, 2003, read with Regulation 103 of the Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999.

    2. PGCIL filed Petition No. 107/TT/2017 for truing up of transmission tariff of the period from the date of commercial operation (COD) to 31.3.2014 in respect of Asset-1: 400 kV D/C Parbati Pooling Point-Amritsar line along with associated bays and Asset-2: 80 MVAR bus reactor at Parbati Pooling Point along with associated bays. The petition was also filed for determination of tariff for 2014-19 tariff period and truing up of transmission tariff for 2009-14 tariff period in respect of Asset-3: LILO of 2nd circuit of Parbati-II-Koldam Transmission Line at Pooling Station and LILO at Parbati-III [portion (c-d)] and Asset- 4:

    LILO of 2nd circuit of Parbati-II-Koldam Transmission Line at Pooling Station along with associated bays and LILO of Parbati-III [portion (e-f)]. The transmission assets were combined during 2014-19 tariff period and combined tariff for Combined Asset was allowed for 2014-19 tariff period. Asset-1, Asset-2, Asset-3 and Asset-4 (hereinafter referred to as

    Page 3 of 19

    "the transmission assets") are under "Transmission System associated with Parbati-III-HEP"

    (hereinafter referred to as "transmission system"). Single line diagram (SLD) of the transmission system is given in the Annexure to this order and the instant transmission assets are marked in the SLD.

    3. The Commission vide order dated 17.8.2020 in Petition No. 107/TT/2017 disallowed time over-run in the case of Asset-3: LILO of 2nd circuit of Parbati-II Koldam Transmission Line at Pooling Station and LILO at Parbati-III [portion (c-d)] and Asset-4: LILO of 2nd circuit of Parbati-II Koldam Transmission Line at Pooling Station along with associated bays and LILO of Parbati-III [portion (e-f)]. Accordingly, Interest During Construction (IDC) and Incidental Expenditure During Construction (IEDC) was disallowed by the Commission observing that time over-run with reference to Asset-II covered in Petition No.91/TT/2012 was not condoned and the Review Petitioner did not give any justification concerning time over-run in the case of Asset-3 and Asset-4 in Petition No. 107/TT/2017.

    4. Aggrieved with the Commission"s order dated 17.8.2020 in Petition No. 107/TT/2017, PGCIL has filed the present review petition contending that the Commission has erred by observing that time over-run in respect of Asset-3 and Asset-4 (parts of Asset- II in Petition No. 91/TT/20212) was not condoned in Petition No. 91/TT/2012.

    Background

    5. PGCIL initially filed Petition No. 91/TT/2012 for approval of transmission charges in respect of the following four number of transmission assets covered under the transmission system in Northern Region for 2009-14 tariff period under the Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2009 ("2009 Tariff Regulations):

    (i) Asset-I: 400 kV D/C Parbati-Amritsar Transmission Line along with associated bays at both ends with COD as 1.8.2013;

    Page 4 of 19

    (ii) Asset-II: LILO of 2nd circuit of Parbati-II-Koldam T ransmission Line at Pooling Station along with associated bays and LILO at Parbati-III with COD as 1.8.2013;

    (iii) Asset-III: 400 kV 80 MVAR Bus Reactor at Parbati Pooling Station along with associated bays with COD as 1.8.2013, and

    (iv) Asset-IV: LILO of Parbati-II Koldam circuit-I at Parbati Pooling Point along with associated bays with COD as 1.4.2014.

    6. The Commission vide order dated 26.5.2015 in Petition No. 91/TT/2012 approved transmission tariff in respect of aforesaid Asset-I and Asset-III. The Commission in the said order dated 26.5.2015 did not allow tariff for Asset-II as it was not being utilized since Koldam Switchyard was not commissioned and part of LILO could not be put to trial operation. Thus, time over-runwith respect to Asset-II was not considered vide order dated 26.5.2015 in Petition No. 91/TT/2012. As regards Asset-IV, the Commission in the said order observed that it was put into commercial operation during 2014-19 tariff period and that the Petitioner had already filed Petition No. 411/TT/2014 wherein tariff of this asset was claimed.

    7. The Commission vide order dated 26.5.2015 in Petition No. 91/TT/2012 observed that Unit No. 1 and Unit No.2 of Parbati HEP-III of NHPC were commissioned on 24.3.2014. The Commission further observed that Asset-I and Asset-III were put into commercial operation with effect from 1.8.2013 at the request and behest of NHPC, therefore, transmission charges from 1.8.2013 to 23.3.2014 shall be borne by NHPC.

    8. Aggrieved with the Commission"s order dated 26.5.2015 in Petition No. 91/TT/2012 on the issues of COD of Asset-I and non-impleadment of NHPC in Petition No. 91/TT/2012, NHPC filed Review Petition No. 25/RP/2015. The Commission vide order dated 29.12.2015 in Petition No. 25/RP/2015 observed that NHPC has been made liable to pay the transmission charges of Asset-I and Asset-III till commissioning of its generation without hearing NHPC and therefore recalled para 23 of the order dated 26.5.2015 relating to sharing of the transmission charges to be borne by NHPC from

    Page 5 of 19

    1.8.2013 to 23.3.2014 and directed that the original petition shall be set down for hearing on the limited aspect of sharing of the transmission charges of the transmission line. Accordingly, Review Petition No. 25/RP/2015 was disposed of.

    9. Petition No. 91/TT/2012 was again heard on 28.1.2016. The Commission vide order dated 21.7.2016 in Petition No. 91/TT/2012 affirmed para 23 of its order dated 26.5.2015 in Petition No. 91/TT/2012 with regard to sharing of transmission charges. The Commission in the said order dated 21.7.2016 further directed CTU to examine whether these transmission assets were used by other generators during the period in question, and if so, the transmission charges paid by them shall be utilized to reduce the liability of NHPC.

    10. Aggrieved with the Commission"s order dated 26.5.2015 in Petition No. 91/TT/2012 on the issue of disallowance of tariff with respect to Asset-II, the Review Petitioner preferred Review Petition No. 19/RP/2015. The Commission vide order dated 7.9.2016 disposed of the said Review Petition No. 19/RP/2015 with the observation that COD for parts of Asset-II portion (c-d-e-f) was approved as 1.9.2013 as per the 2009 Tariff Regulations with direction to NHPC to pay charges from 1.9.2013 to 23.4.2014. The Commission in the said order dated 7.9.2016 further observed that with effect from 23.4.2014, the transmission charges for (c-d-e-f) portion of Asset-II shall be included in PoC charges as provided under Central Electricity Regulatory Commission (Sharing of Inter-State Transmission Charges and Losses) Regulations, 2010. As regards, portion (b-

    c) and portion (f-g), these elements will be declared under commercial operation with effect from the date of commercial operation of line portion (a-b) and portion (g-h) respectively. The Petitioner was directed to submit the details of cost of the (c-d-e-f) portion of transmission line of Asset-II as on 1.9.2013 for determination of tariff.

    11. Aggrieved with the orders dated 26.5.2015 and 21.7.2016 (consequent to the order

    Page 6 of 19

    dated 26.5.2025 in Review Petition No. 25/RP/2015) in Petition No. 91/TT/2012 and order dated 7.9.2016 in Review Petition No. 19/RP/2015, NHPC filed Appeal No. 281 of 2016 and Appeal No. 81 of 2017 before the Appellate Tribunal for Electricity (APTEL). The APTEL vide judgment dated 16.7.2018 remitted Petition No. 91/TT/2012 for fresh consideration. The Commission vide order dated 5.2.2020 again decided certain aspects of Petition No. 91/TT/2012 in terms of the APTEL"s judgment dated 16.7.2018 and upheld the COD of Asset-II as 1.9.2013.

    12. Since COD of portion (b-c) and portion (f-g) of Asset-II of Petition No. 91/TT/2012 fall in 2014-19 tariff period, a separate petition was filed by PGCIL in respect of these assets being Petition No. 136/TT/2017.

    13. The Commission"s order dated 7.9.2016 in Petition No. 19/RP/2015 nowhere dealt with the issue of time over-run with respect to Asset-II or any of its portions.

    14. The matter was heard through video conference on 26.11.2021 and order on admissibility was reserved.

    Submissions of the Review Petitioner

    15. The Review Petitioner has submitted followings in support of the instant the instant review petition:

    (a) The Commission in order dated 26.5.2015 in Petition No. 91/TT/2012 considered the Review Petitioner"s affidavit dated 20.9.2013 with reference to time over-run and clearly recorded the submissions that delay in execution of the transmission assets was on account of acquisition of land for sub-station, forest clearance of Parbati-Amritsar Transmission Line in Himachal Pradesh and at Punjab portions. After appreciation of submissions of the Review Petitioner, the Commission vide order dated 26.5.2015 condoned delay of 42 months.

    Page 7 of 19

    (b) Pursuant to APTEL"s judgment dated 16.7.2018 remanding Petition No. 91/TT/2012, the Commission vide order dated 5.2.2020 reconsidered Petition No. 91/TT/2012 and recorded that there was time over-run of 42 months in the case of Asset-I, Asset-II and Asset-III and it was mainly due to forest clearance, land acquisition and time taken for obtaining tree cutting permission. The Commission in the order dated 5.2.2020 observed that the said time over-run of 42 months was found to be beyond the control of the Review Petitioner and, therefore, it was condoned.

    (c) The Review Petitioner in its rejoinder affidavit dated 14.9.2018 to the reply of BRPL on the issue of time over-run submitted that delay justifications for the assets covered under Parbati-III HEP have already been submitted in Petition No. 91/TT/2012 and Petition No. 411/TT/2014 concerning the transmission assets of Petition No. 107/TT/2017. It is submitted that on consideration of the submissions of Review Petitioner, the Commission condoned delay after finalizing various transmission elements and their COD covered in the aforesaid two petitions. Due to this reason, the Review Petitioner has not filed any further justification for time over-run.

    (d) The Commission did not seek any further clarifications or sought additional details in Record of Proceedings and/or technical validation from the Review Petitioner with reference to the present case. In the absence of any query from the side of the Commission seeking clarification on any issue/technical validation or any additional details on the subject matter, the Commission ought not to have rejected the claim for time over-run on the grounds that Review Petitioner has not given any documents in support of the same. However, the Review Petitioner has proceeded on the basis that documents had already been submitted in earlier proceedings and therefore there is no need for fresh submission. Reliance is placed on the judgments of APTEL in the matter of (i) NTPC Ltd. v. Central Electricity Regulatory Commission and Ors. dated 9.5.2019

    Page 8 of 19

    in Appeal No. 125 of 2017 and (ii) D.B. Power Ltd. v. Central Electricity Regulatory Commission and Ors. dated 15.5.2020 in IA No. 129 of 2019 in Appeal No. 253 of 2018 and IA No. 1515 of 2019.

    (e) Consideration of time over-run is essential and has it has impact on the capital cost of the Review Petitioner which in turn has a cascading impact on various elements of tariff. Denial of time over-run and associated IDC and IEDC results in denial of legitimate costs of the Review Petitioner. The principle of allowing cost over-run due to time over-run beyond the control of the licensee has been settled and accepted by the APTEL and the Commission. Reliance is placed on the judgment of APTEL in the matter of Maharashtra State Power Generation Co. Ltd. v. Maharashtra Electricity Regulatory Commission decision dated 27.4.2011 in Appeal No. 72 of 2010.

    (f) The Review Petitioner has set out reasons for delay in land acquisition for Pooling Station at Banala and also gave details of communication exchanged on various dates between officials and Authorities right from 15.1.2003 to 4.11.2010 with reference to land allotment.

    (g) The Review Petitioner in the present petition has reiterated its submissions with regard to time over-run as submitted by it in Petition No. 91/TT/2012. Since the Commission vide order dated 26.5.2015 in Petition No. 91/TT/2012 has given detailed account of reasons of time over-run in paragraph 21 and paragraph 22, to avoid repetition the same are not being recorded here.

    16. In the background of aforementioned submissions, the Review Petitioner has sought review of the order dated 17.8.2020 in Petition No. 107/TT/2017 and has requested to allow full IDC and IEDC for Asset-3 and Asset-4 as prayed with consequential changes and allow calculation of capital cost and tariff.

    Page 9 of 19

    17. During hearing of the matter on 26.11.2021, learned counsel for the Review Petitioner reiterated the submissions as made in the instant Review Petition and requested to consider the same, allow time over-run as sought as well as allow full IDC and IEDC for Asset-3 and Asset-4 in the facts and circumstances of the present case.

    Analysis and Decision

    18. We have considered the submissions of the Review Petitioner and have gone through the material available on record. The main contention of the Review Petitioner is that Petition No. 91/TT/2012 was filed in respect of four number of transmission assets. The Commission vide order dated 26.5.2015 allowed tariff for Asset-I and Asset-III after considering and allowing time over-run of 42 months while no tariff was fixed for Asset-II and Asset-IV. The Review Petitioner has further submitted that tariff for Asset-IV was not allowed in the said order as it was commissioned during 2014-19 tariff period and a separate petition claiming tariff for this asset being Petition No. 411/TT/2014 was filed by the Review Petitioner. The Review Petitioner has contended that reasons for time over-run are common to all the transmission assets covered in Petition No. 91/TT/2012 and the same have been allowed by the Commission in case of Asset-I and Asset-III. The Review Petitioner has drawn attention to the fact that the Commission vide order dated 7.9.2016 in Review Petition No. 19/RP/2015 approved the COD in respect of portion of the asset (c-d-e-f) as 1.9.2013 as per the 2009 Tariff Regulations with direction to NHPC to pay charges from 1.9.2013 to 23.4.2014. The Review Petitioner has contended that the said order dated 7.9.2016 further observes that with effect from 23.4.2014, the transmission charges for (c-d-e-f) portion of Asset-II shall be included in PoC charges as provided under Central Electricity Regulatory Commission (Sharing of Inter-State Transmission Charges and Losses) Regulations, 2010. As regards, portion (b-c) and portion (f-g), these elements will be declared under commercial operation with effect from the date of commercial operation of line portion (a-b) and portion (g-h),

    Page 10 of 19

    respectively. Referring to the observation of the Commission in order dated 7.9.2016 in Review Petition No. 19/RP/2015, the Review Petitioner has contended that the Review Petitioner was directed to submit details of the cost of portion of the transmission line represented by (c-d-e-f) of Asset II as on 1.9.2013 for determination of tariff, which was indicative of the fact that time over-run in respect of Asset-II in Petition No. 91/TT/2012 had already been condoned by the Commission. The Review Petitioner has contended that as no further clarification, information or technical validation was sought by the Commission from the Review Petitioner with reference to time over-run of the transmission assets, it led the Review Petitioner to presume that time over-run with reference to Asset-II had already been condoned in Petition No. 91/TT/2012. Review Petitioner has further contended that denial of time over-run and associated IDC and IEDC to it would have adverse impact on various elements of tariff.

    19. Order 47 Rule 1 of Civil Procedure Code, 1908 provides that a party considering itself aggrieved by an order may seek review of the order under the following circumstances:

    "(a) On discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was made, or

    (b) On account of a mistake or error apparent on the face of the record, or

    (c) For any other sufficient reasons." 20. We note that the main ground for review of the Review Petitioner is that reasons and justification for time over-run in respect of four number of transmission assets had already been submitted in Petition No. 91/TT/2012. However, we observe that the Commission vide

    order dated 26.5.2015 in Petition No. 91/TT/2012 allowed tariff after condoning time over-run in respect of Asset-I and Asset-III only. The Commission vide order dated 26.5.2015 in

    Petition No. 91/TT/2012 did not deal with the issue of time over-run in respect of Asset-II and Asset-IV. Pursuant to Commission"s order dated 29.12.2015 in Review Petition No.

    Page 11 of 19

    25/RP/2015, the Commission took up Petition No. 91/TT/2012 again for hearing limited to the issue of sharing of transmission charges payable by NHPC. The Commission vide order dated 21.7.2016 in Petition No. 91/TT/2012 affirmed the arrangement of payment of sharing of transmission charges by NHPC with direction to CTU to examine whether the transmission assets were used by other generators during the period in question and if so, the transmission charges paid by them shall be utilized to reduce the liability of NHPC. However, the said order dated 21.7.2016 did not deal with time over-run of Asset-II and Asset-IV. The Review Petitioner filed Review Petition No. 19/RP/2015 in Petition No. 91/TT/2012 and the Commission vide order dated 7.9.2016 approved the COD for part of the asset (c-d-e-f) as 1.9.2013 as per the 2009 Tariff Regulations and directed NHPC to pay charges from 1.9.2013 to 23.4.2014. The Commission in the said order dated 7.9.2016 further observed that with effect from 23.4.2014, the transmission charges for (c-d-e-f) portion of Asset-II shall be included in PoC charges as provided under 2010 Sharing Regulations. As regards, portion (b-c) and portion (f-g), these elements will be declared under commercial operation with effect from the date of commercial operation of line portion (a-b) and portion (g-h), respectively. The Petitioner was directed to submit the details of the cost of portion of the transmission line represented by portion (c-d-e-f) of Asset II as on 1.9.2013 for determination of tariff. The Commission"s order dated 7.9.2016 in Review Petition No. 19/RP/2015 only dealt with the issue of COD for parts of Asset-II in Petition No. 91/TT/2012 and it did not deal with time over-run of Asset-II.

    21. The Commission in its order dated 5.2.2020 in Petition No. 91/TT/2012 has observed that there was time over-run in the case of Asset-I, Asset-II and Asset-III and it was beyond the control of the Review Petitioner.

    22. Thus, we find that it is not the case of Review Petitioner that it was unable to produce the aforesaid facts at the time when order in Petition No. 107/TT/2017 was passed. In other

    Page 12 of 19

    words, no new facts have been brought on record which were not in power and possession of the Review Petitioner or that these facts were not in the knowledge of the Review Petitioner at the time when the order in Petition No.107/TT/2017 was passed. On examination of the Review Petitioner"s submissions, we find that none of the submissions satisfy that there is "any other sufficient cause" to review the order dated 17.8.2020.

    23. The Review Petitioner rests its case on the fact that Petition No. 91/TT/2012 was filed for determination of four numbers of transmission assets and time over-run being common to all was condoned by the Commission in case of Asset-I and Asset-III. The Commission vide order dated 26.5.2015 in Petition No. 91/TT/2012 condoned time over-run of 42 months and allowed tariff for Asset-I and Asset-III leaving Asset-II and Asset-IV.

    24. On perusal of the Commission"s order dated 26.5.2015 in Petition No. 91/TT/2012, we find that the said petition was filed in respect of four numbers of transmission assets. However, the Commission vide the said order dated 26.5.2015 considered and condoned time over-run of 42 months on the basis of material available on record and allowed tariff in respect of Asset-I and Asset-III only. The Commission in its order dated 26.5.2015 observed that it was not contemplating tariff in respect of Asset-IV as a separate petition being number 411/TT/2014 had been filed by the Review Petitioner when Petition No.91/TT/2012 itself was pending adjudication. The Commission in the said order dated 26.5.2015 did not allow tariff for Asset-II as it was not being utilized, since Koldam Switchyard was not commissioned and part of LILO could not be put to trial operation. Thus, it is apparent that the issue of time over-run with respect to Asset-II and Asset-IV was not even considered and addressed, leave alone condoned by the Commission in the order dated 26.5.2015 in Petition No. 91/TT/2012.

    25. The Review Petitioner has contended that vide common affidavit dated 14.9.2018 in Petition No. 91/TT/2012, Petition No. 107/TT/2017 and Petition No. 136/TT/2017, it had

    Page 13 of 19

    submitted justifications for the delay and time over-run for the assets of Parbati-II HEP in Petition No. 91/TT/2012 and Petition No. 411/TT/2014 covering the assets of Petition No. 107/TT/2017 and the Commission after considering the submissions of the Review Petitioner has already condoned the delay in COD of various transmission elements covered in the said two petitions. The Review Petitioner has further contended that as justifications for the delay and time over-run were given in the said two petitions, no further justification was given by it in Petition No. 107/TT/2017.

    26. We have already observed that no delay was condoned in Petition No. 91/TT/2012 with regard to Asset-II and Asset-IV. Further, we have also perused the order dated 30.7.2016 in Petition No. 411/TT/2014 and find nothing in the order dated 30.7.2016 in Petition No. 411/TT/2014 suggesting that the issue of time over-run was considered and addressed, leave alone condoned. Thus, contention of the Review Petitioner that time over- run was considered and condoned for Asset-II and Asset-IV in Petition No. 91/TT/2012 and Petition No. 411/TT/2014, respectively does not reflect the correct fact.

    27. On perusal of order dated 7.9.2016 in Review Petition No. 19/RP/2015, we find that the Commission in the said order only approved the COD for parts of Asset-II in Petition No. 91/TT/2012 and there was no discussion on the issue of time over-run of Asset-II or any of its parts. The matter in issue in the present Review Petition is with regard to time over-run of portions (c-d) and (e-f) of Asset-II which were carved out pursuant to the Commission"s order dated 7.9.2016 in Review Petition No.19/RP/2015. Parts of Asset-II in Petition No. 91/TT/2012 i.e. portion (c-d) and portion (e-f) are now Asset-3 and Asset-4, respectively in Petition No. 107/TT/2017. Thus, it cannot be said that the Commission in order dated 7.9.2016 in Review Petition No.19/RP/2015 had considered and condoned the time over-run with respect to these parts of Asset-II.

    Page 14 of 19

    28. The Review Petitioner has also contended that the Commission vide order dated 5.2.2020 in Petition No. 91/TT/2012 on re-consideration of the matter in terms of APTEL"s judgment dated 16.7.2018 in Appeal No. 281 of 2016 and Appeal No. 81 of 2017, in paragraph 4 observed that there was time over-run of 42 months in the case of Asset-I, Asset-II and Asset- III which was mainly due to forest clearance, land acquisition and time taken for obtaining tree cutting permission. The Review Petitioner goes on to contend that the Commission found the said time over-run of 42 months was beyond the control of the Petitioner and condoned the same and therefore, goes on to claim that the time over-run in respect of Asset-II in Petition No. 91/TT/2012 was also condoned.

    29. It is observed that Petition No.91/TT/2012 was heard by the Commission thrice. In the first instance, tariff was approved for Asset-I and Asset-III and tariff for Asset-II and IV was not allowed vide order dated 26.5.2015. The Commission in paragraph 6 of the order has clearly stated that tariff is not granted for Asset-II. The relevant portion of the order dated 26.5.2015 in Petition No.91/TT/2012 is extracted hereunder:

    "6. A portion of the LILO circuits of Asset-II is not utilized as the Koldam switchyard has not been commissioned and the part of LILO cannot be put to trial operation without the line getting connected at the other end as per the APTEL order dated 2.7.2012 in Appeal No. 123 of 2011. Further, the petitioner has neither prayed for declaration of date of commercial operation under Regulation 3(12)(C) of the 2009 Tariff Regulations nor disclosed the information that the portion of LILO are not in use. Punjab State Power Corporation Limited (PSPCL), Respondent No. 6, has also raised this issue in their submission. Since the Koldam Switchyard has not been commissioned, we are not inclined to grant tariff for Asset-II in this petition. The petitioner is at liberty to file the tariff of this asset when complete LILO is put into regular service after test charge and trial operation." 30. Further, the time over-run in case of Asset-I and Asset-III, for which tariff was allowed in order dated 26.5.2015, was dealt in paragraph 20 to paragraph 23 of the order and there was no mention about Asset-II in the said portion of the order. Thus, it is clear that issue of time over-run and tariff in case of Asset-II was not considered by the Commission in order dated 26.5.2015.

    Page 15 of 19

    31. At the second instance, Petition No. 91/TT/2012 was reopened pursuant to the Commission"s order dated 29.12.2015 in Petition No. 25/RP/2015 filed by NHPC. Petition No. 91/TT/2012 was reopened for reconsideration of the Commission"s direction making NHPC liable for the transmission charges of Asset-I and Asset-III till commissioning of its generation. After hearing the parties, the Commission vide order dated 21.7.2016 in Petition No. 91/TT/2012 while reaffirming paragraph 23 of the order dated 26.5.2015 in Petition No. 91/TT/2012 holding NHPC liable for the transmission charges of Asset-I and Asset-III directed CTU to examine whether these transmission assets were used by other generators during the period in question, and if so, use the transmission charges paid by them for reducing the liability of NHPC. Therefore, the time over-run in case of the assets covered in Petition No.91/TT/2012 was not an issue for consideration by the Commission at that stage and accordingly, it was not at all considered in order dated 21.7.2016.

    32. The Commission for the third time heard Petition No.91/TT/2012 on remand pursuant to the APTEL"s judgement dated 16.7.2018 in Appeal No.281 of 2016 and Appeal No.81 of 2013. The Commission framed the following issues on the basis of the submissions made by PGCIL, NHPC and PKTCL:

    "26. From the submissions of the parties, the following issues arise for our consideration:

    (i) Whether Indemnification Agreement dated 22.7.2005 executed between NHPC and PGCIL is applicable?

    (ii) Whether tariff can be granted for a part of any transmission system?

    (iii) Whether COD of the assets/ elements in the present case was declared without putting in place the associated Communication System?

    (iv) Whether the approach of the Commission is inconsistent in similar cases for allowing recovery of transmission charges?

    (v) Whether the transmission charges in the present case should be shared by the other generators using the transmission system?" 33. From the perusal of the issues framed by the Commission, it is clear that the time over-run in case of the transmission assets was not for consideration of the Commission on

    remand.

    Page 16 of 19

    34. We have perused order dated 5.2.2020 in Petition No. 91/TT/2012. It is observed that while giving a background of the matter, the Commission in paragraph 4 of the order observed "There was a time over-run of 42 months in case of Assets-I, II and III and it was mainly due to forest clearance, land acquisition……" The issue of time over-run in case of Asset-II was never considered earlier by the Commission as brought in the aforesaid paragraphs from 29 to 33. Moreover, it was a remark made in the introduction of the order and it was not a finding of the Commission. Thus, mention of Asset-II in that sentence was an inadvertent error. The paragraph 4 of the order dated 5.2.2020 is extracted hereunder:

    "4. There was a time over-run of 42 months in case of Assets-I, II and III and it was mainly due to forest clearance, land acquisition and time taken for obtaining tree cutting permission. The said time over-run of 42 months was found to be beyond the control of the Petitioner and, therefore, it was condoned. As regards Assets-I and III, the Petitioner submitted that in view of the requirement of NHPC, as conveyed to them by NHPC vide letter dated 12.6.2013, the Petitioner put them into commercial operation on 1.8.2013. Taking into consideration the submissions of the petitioner, the Commission approved the COD of Assets I and III as 1.8.2013 and granted tariff for Assets-I and III in this Petition in order dated 26.5.2015. However, the tariff for Asset-II was not allowed as a portion of LILO of circuits of Asset-II was not being utilized since the Koldam switchyard was not ready and part of LILO could not be put to trial operation." 35. Moreover, in the 9 th line of the paragraph it is mentioned that tariff for Asset-II was not allowed as a portion of LILO of circuits of Asset-II was not being utilized since the Koldam switchyard was not ready and part of LILO could not be put to trial operation. The Review Petitioner is reading paragraph 4 which is the introductory part of the order and the same cannot be said to be the finding of the Commission. Thus, there is no discussion at all on the issue of time over-run of Asset-II and there is nothing suggesting that time over-run in case of Asset-II has been condoned in the order dated 5.2.2020 in Petition No. 91/TT/2012. In fact, the relevant portion (paragraph 6 and paragraph 7) of the order dated 26.5.2025 extracted in the same paragraph 4 of the order dated 5.2.2020 in Petition No. 91/TT/2012 puts the facts in correct perspective, which is as under:

    Page 17 of 19

    "6. A portion of the LILO circuits of Asset-ll is not utilized as the Koldam switchyard has not been commissioned and the part of LILO cannot be put to trial operation without the line getting connected at the other end as per the APTEL order dated 2.7.2012 in Appeal No. 123 of 2011. Further, the Petitioner has neither prayed for declaration of date of commercial operation under Regulation 3(12)(C) of the 2009 Tariff Regulations nor disclosed the information that the portion of LILO are not in use. Punjab State Power Corporation Limited (PSPCL), Respondent No. 6, has also raised this issue in their submission. Since the Koldam Switchyard has not been commissioned, we are not inclined to grant tariff for Asset-ll in this petition. The Petitioner is at liberty to file the tariff of this asset when complete LILO is put into regular service after test charge and trial operation.

    7. Asset-IV has been commissioned in the 2014-19 tariff period and the Petitioner has already claimed tariff as per the 2014 tariff as per the 2014 Tariff Regulations for this asset in Petition No. 411/TT/2014. Accordingly, the transmission charges are allowed for only Asset-I and Asset-III in the instant petition. The Petitioner was directed to file separate capital cost of Assets-I and III as the Petitioner had submitted combined capital cost of all tree assets. However, the Petitioner again vide affidavit dated 5.1.2015, submitted the combined capital costs of all the three assets." 36. In the light of above discussions, we are of the view that the Review Petitioner has failed to show any error apparent on the face of record or discovery of any new facts which

    were not in its knowledge or any other sufficient cause to bring its case within the ambit of

    review.

    37. For the reasons mentioned above, we are unable to accept the contentions of the

    Review Petitioner for admission of the Review Petition. Accordingly, the Review Petition is dismissed at the stage of admission. The Review Petition No. 32/RP/2020 is disposed of accordingly.

    sd/- sd/-

    (I. S. Jha) (P. K. Pujari) Member Chairperson

    CERC Website S. No. 172/2022

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    Annexure

    Page 19 of 19

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