Surendra Kumar, J. (Member (J)) - (1.)THE appellant/petitioner, namely, Himachal Sorang Power Ltd. has filed the instant Appeal under Section 111 of the Electricity Act, 2003 against the impugned order dated 31.01.2013 passed by the learned Central Electricity Regulatory Commission, in short ('Central Commission') in Petition No. 43/MP/2012 titled as Himachal Sorang Power Ltd. Vs. Powergrid Corporation of India Ltd. whereby the learned Central Commission has dismissed the petition of the appellant filed under Section 79(1)(f) of the Electricity Act, 2003 regarding a dispute arising between the appellant, being a generating Company, and the respondent Power Grid Corporation of India Ltd., being a transmission licensee with the following observation: -
"25. The above discussion leads us to the conclusion that the petitioner sought postponement of commencement of open access till the commissioning of the Karcham -Wangtoo transmission line. The respondent has agreed to the request of the petitioner and has started billing from April 2012 as the Karcham -Wangtoo transmission line was commissioned with effect from 01.04.2012. The claim of the petitioner for further postponement of commencement of open access cannot be considered, as no force majeure event has been brought to our notice which took place after April 2012 which had the impact of delaying the project. The petitioner's project is being delayed on account of improper planning and execution of the works of the project and the respondent cannot be made to suffer for the failure on the part of the petitioner to execute the project in time. Therefore, no relief can be granted to the petitioner and the petitioner is liable to pay the transmission charges to the respondent from 01.04.2012.

26. The petition stands disposed of in the light of the above discussion."

(2.)THE appellant is the power generating Company and the respondent No. 1 is the Central Electricity Regulatory Commission which is empowered to discharge its functions under the various provisions of the Electricity Act, 2003. Respondent No. 2 Power Grid Corporation of India Ltd. is a Central Transmission Utility (CTU) and is a transmission licensee.
The appellant filed a petition under Section 79(1)(f) of the Electricity Act, 2003 before the Central Commission making the following prayers: -

"(i) Declare that the petitioner is entitled in the facts and circumstances of the case, to an extension of the date for commencement of open access under the BPTA;

(ii) Pass appropriate directions extending the date of commencement of long term open access from May, 2011 to September, 2012 under the BPTA;

(iii) Restrain the respondent from making any claims under the BPTA for transmission charges or in respect of extension of the date of commencement of open access under the BPTA prior to September, 2012;

(iv) Direct the respondent to withdraw the invoices dated 08.09.2011 and 03.01.2012;

(v) In the interim, grant a stay on the respondent from raising any invoices on the Petitioner for transmission charges or otherwise till September, 2012 or to take any steps or coercive action to recover the transmission charges raised in its invoices dated 08.09.2011 and 03.01.2012; and

(vi) Pass such other orders that this Hon'ble Commission deems fit in the interest of justice."

(3.)BY the impugned order, the learned Central Commission has, inter alia, come to the following findings and conclusions: -
(a) The bill of Rs. 70 lacs raised by the Respondent No. 2 on 08/09/2011 for the period prior to 01.04.2012 has been cancelled by Respondent No. 2 on 03/01/2012. There is no grievance on this issue.

(b) The Appellant has sought revisions from time to time in the date on which the open access would take effect. Firstly, revision was sought till January, 2012, then till May, 2012, then again to September, 2012, then again to December, 2012 and finally to May, 2013. The Appellant has not been consistent in its approach and has been continuously revising its prayers.

(c) The Appellant has not complied with the provisions of the BPTA in issuing notice of Force Majeure to the Respondent No. 2 to amend the period of extension to September, 2012.

(d) By communication dated 07/07/2011, the Appellant has stated that the open access is to commence from the date when the Karcham Wangtoo - Abdullapur line (KWA line) is ready and commissioned. This letter was not without prejudice to the rights of the Appellant. The line was commissioned on 01/04/2012 and the Appellant is liable to pay the transmission charges from such date.

(e) There was no force majeure after April, 2012 which can be claimed by the Appellant. The last alleged force majeure was on 14/07/2010. Only one activity was carried out between 01/06/2012 and 15/08/2012. The Appellant has not acted prudently and has changed the design of the power plant by lowering the Head by only 0.75 meters after two years of the alleged geographical surprise.

(f) The failure to estimate the time required for construction and repair activity is attributable to the Appellant and cannot be termed as force majeure. Even in the letter dated 07/07/2011, (which was claimed by the Appellant as a notice of Force Majeure under the BPTA) the Appellant has not mentioned about alleged geological surprises and the time required to recover from the same. The Appellant has agreed that the open access will be from the date of commissioning of the Karcham Wangtoo - Abdullapur line.

(g) The extension only till 01/04/2012 was permitted, which was agreed by the Appellant. No force majeure took place after April, 2012. No relief can be granted to the Appellant.