- (1.) THE petitioner, Power Grid Corporation of India Limited has filed this petition for extension of the Revised Commercial Operation Date (RCOD) for Western Region System Strengthening Scheme -II (Project -B) upto 1.1.2014 on the ground that events responsible for delay in completion of the project are analogous to Force Majeure conditions.
(2.) THE facts of the case as submitted by the petitioner are as under: (a) By order dated 30.12.2008 in Petition No. 27/2008, Western Region Transmission (Maharashtra) Pvt. Ltd. (WRTMPL) was granted transmission licence for construction, commissioning, operation and maintenance of the transmission lines falling under Western Region System Strengthening Scheme -II (Project 'B'). (b) As per the Implementation Agreement (IA) executed between the petitioner and WRTMPL, the scheduled date of commercial operation of the project was 31.3.2010. On account of the delay in signing of the Transmission Service Agreement by the beneficiaries, the Commission had in the order dated 30.12.2008 in Petition No. 27/2008 granted nine months time (i.e. upto 31.12.2010) for achieving the commercial operation of the project. (c) Subsequently, WRTMPL approached the Commission for extension of Required Commercial Operation Date (RCOD) due to delayed receipt of approval under Section 164 of the Electricity Act 2003 (the Act) and unprecedented downpour immediately after receipt of section 164 approval. The Commission vide order dated 31.12.2010 in Petition No. 296/2010 came to the conclusion that delay of 9 months had taken place due to time taken in getting the Section 164 approval and unprecedented rainfall were in the nature of force majeure conditions. The Commission vide its order dated 31.12.2010 directed WRTMPL and PGCIL to mutually decide the issue of extension of Required Commercial Operation Date (RCOD) in terms of relevant provisions of IA. Accordingly, RCOD was extended by PGCIL till 31.8.2011. (d) WRTMPL could complete only two transmission lines, namely, LILO of Sholapur -Karad and LILO of Lonikhand -Kalwa within 31.8.2011. WRTMPL in its letters dated 22.8.2011 and 27.12.2011 requested PGCIL for extension of RCOD of remaining lines to November 2012. The request was forwarded by PGCIL to the beneficiaries of the project for their comments who approved extension of the date of RCOD. PGCIL vide its letter dated 17.2.2012 directed WRTMPL to make all out efforts to ensure completion of the project by 30.11.2012. WRTMPL could not execute the project by 30.11.2012 and again requested PGCIL for extension of RCOD up to May 2013. However, PGCIL did not extend the RCOD and directed WRMPTL to complete the projects by 31.5.2013 without prejudice to its rights under the IA. As the project could not be completed by 31.5.2013, WRTMPL sought further extension of six months vide its letter dated 31.5.2013. PGCIL without extending RCOD directed WRTMPL to complete the lines by 30.11.2013. (e) After project -wise completion of all the lines, WRTMPL in its letter dated 7.2.2014 submitted comprehensive description of the events alongwith documentary evidence which adversely affected the progress of the project. (f) The details of date of commercial operation of the various elements of the project are as under: (g) Since there was delay in completion of the elements of the project mentioned at Sr. No. 3 to 7 with reference to ROCD, WRTMPL vide its letter dated 7.2.2014 requested PGCIL to revise RCOD up to 1.1.2014 due to the following force majeure events: (i) Severe law and order problem in areas near Navlakh Umbre village; (ii) Necessity to change tower designs to erect multi -circuit towers common to Pune -Aurangabad and Parli -Pune lines, near Talegaon sub -station. (iii) Delay in de -notification of wild life sanctuaries, encountered in the final survey of Pune -Aurangabad line.
(3.) THE petitioner has submitted that on receipt of the request for WRTMPL, the petitioner constituted a committee consisting of PGCIL officials to analyze the reasons given by WRTMPL for extension of RCOD. The committee after examination of the documents had inter -alia observed as under: (i) Various elements under the project got affected by mass agitations, RoW issues, court cases, etc. which have slowed down the construction progress and in this regard WRTMPL has placed on record documentary evidences for delay for each line separately. (ii) The challenges faced by WRTMPL may qualify as force majeure events since these events prevented and unavoidably delayed WRTMPL in performing its obligations under IA and are beyond its reasonable control. Magnitude of RoW issues involving adjudications by the courts are beyond the control of WRTMPL and it could not complete the project in time despite consistent mitigation measures. Settlement of about 161 court cases was not only beyond the control of WRTMPL but also slowed down the construction progress in various locations. (iii) Since the project is executed under tariff based competitive bidding route, WRTMPL shall not be entitled for any increase in tariff due to delay in execution of the project. (iv) CERC in a number of orders has acknowledged and held that RoW issues, court cases and issues regarding clearances are beyond the control of a transmission line proponent and has allowed time overruns in various cases on account of RoW issues and delay in forest clearance. (v) The reasons projected for delay in commissioning of project appear to be beyond the control of WRTMPL and may be covered under Force Majeure events under clause 9.3 of the IA. (vi) RCOD may be extended up to 1.1.2014. With regard to interests of the beneficiaries, WRTMPL has already acknowledged the committee's earlier letters that extension of RCOD of the project would not have any adverse impact on transmission charges payable by the beneficiaries and shall remain unaltered as indicated in the Power Transmission Agreement (PTA). In the backdrop of the above facts, the petitioner has approached the Commission for extension of RCOD of the project up to 1.1.2014.;