IN THE APPELLATE TRIBUNAL FOR ELECTRICITY (Appellate Jurisdiction)

APPEAL NO. 61 OF 2020 Dated: 22.09.2022 Present: Hon’ble Mr. Justice R.K. Gauba, Officiating Chairperson Hon’ble Mr. Sandesh Kumar Sharma, Technical Member In the matter of:

NTPC LTD, NTPC Bhawan, Core-7, SCOPE Complex, 7, Institutional Area, Lodhi Road, New Delhi-110003 … Appellant(s)

VERSUS

1. CENTRAL ELECTRICITY REGULATORY COMMISSION Through its Secretary, 3rd & 4th Floor, Chanderlok Building, 36, Janpath, New Delhi- 110001

2. UTTAR PRADESH POWER CORP. LTD. (UPPCL)

Through Its Chief Engineer Shakti Shawan 14, Ashok Marg Lucknow - 226 001

3. JAIPUR VIDYUT VITRAN NIGAM LTD. (JVVN)

Through its Chief Engineer Vidyut Bhawan, Janpath, Jaipur-302005

4. AJMER VIDYUTVITRAN NIGAM LTD. (AVVN)

Through its Chief Engineer Old Power House, Halhi Bhata, Jaipur Road, Ajmer – 305001

5. JODHPUR VIDYUT VITRAN NIGAM LTD. (JVVN)

Through its Chief Engineer New Power House, Industrial Area, Jodhpur – 343003

6. HARYANA POWER PURCHASE CENTRE (HPPC)

Through its Chief Engineer Shakti Bhawan Sector - VI, Panchkula Haryana -134109

7. POWER DEVELOPMENT DEPARTMENT (PDD·J&K)

Through its Chief Engineer Govt. of J&K, Civil Secretariat Srinagar-190008

8. ELECTRICITY DEPARTMENT (CHANDIGARH)

Through its Chief Engineer Union Territory of Chandigarh Addl.

Office Building Sector·9 D Chandigarh - 160019

9. UTTARAKHAND POWER CORPORATION LTD. (UPCL)

Through its Chief Engineer Urja Bhavan Kanwali Road, Dehradun - 248 001 … Respondent(s)

Counsel for the Appellant (s) : Mr. S. Venkatesh Mr. Ashutosh K. Srivastava Mr. Bharath Gangadharan Mr. Siddarth Nigotia Mr. Shivam Kumar Counsel for the Respondent (s) : Ms. Pradeep Misra Mr. Suraj Singh Mr. Manoj Kumar Sharma for R-2 J U D G M E N T (Oral)

PER HON’BLE MR JUSTICE R.K. GAUBA, OFFICIATING CHAIRPERSON

1. The appellant is a generating company which had entered into a Power Purchase Agreement (“PPA”) on 25.02.2011 with second to ninth respondents (hereinafter collectively referred to as the beneficiaries or procurers) for sale of electricity generated from its generating station in terms of allocations made by Ministry of Power in the Government of India. In the wake of investment approval accorded on 30.07.2017, it proceeded to set up its generating station described as Feroze Gandhi Unchahar Thermal Power Station, Stage-IV (1X500 MW) in District Raebareli of State of Uttar Pradesh. The unit-I of the said generating station was commissioned on 31.03.2017, the setting up of the project having suffered certain time overrun. The appellant had filed petition (no.197/GT/2017) before the Central Commission (“the Central Commission”) for approval of tariff in its respect for period from the date of its actual commercial operation (30.09.2017) to 31.03.2019.

2. In above context, the question of time overrun of 273 days came up for consideration, the Scheduled Commercial Operation Date (SCOD) being 31.12.2016 (i.e. 41 months from 30.07.2013, the date of investment approval), the actual COD having been achieved on 30.09.2017. Reliance was placed by the appellant on regulation 12(2) of 2014 tariff regulations framed by the Central Commission wherein “uncontrollable factors” are included in force majeure clause, the developer being entitled to claim relief against additional impact of time overrun or cost overrun on such account. The Central Commission, by order dated 06.12.2019, accepted the delay of 116 days (from 05.12.2016 to 31.03.2017) to be beyond control of the appellant and accordingly condoned the time overrun to that extent but declined the prayer for similar condonation of delay of further

157 days (beyond 31.03.2017).

3. The appeal at hand challenges the order dated 06.12.2019 of Central Commission to the extent it denies the condonation of appeal of 157 days as above.

4. The force majeure events on the basis of which the prayer for condonation of time overrun was pressed before the Central Commission included non-availability of ‘Sand and Moorum’ and unduly excess rainfall during