Uttar Pradesh Power Corporation Limited & Ors vs Obra-C Badaun Transmission Limited & Ors on 29 September 2026

J U D G M E N T

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

1. The Appellants have, in this appeal, assailed the order dated 3rd October, 2022 passed by the 3rd Respondent – Uttar Pradesh Electricity Regulatory Commission (hereinafter referred to as “the Commission”) in Petition No. 1824 of 2022 filed by 1st Respondent.

2. The Appellant No. 1 is a deemed licensee under Section 14 of the Electricity Act, 2003 and is functioning as distribution, retail and bulk supply licensee under UP Electricity Reforms Act, 1999 (Reforms Act). The Appellant Nos. 2 to 6 are distribution licensees in the State of UP in terms of Section 2(17) of Electricity Act, 2003. However in the context of the present Appeal, the Appellant Nos. 2 to 6 are Long Term Transmission Customers (LTTCs) of the 1st Respondent – Obra C – Badaun Transmission Limited (in short “OBTL”).

3. The 1st Respondent (also referred to as OBTL) is an intra-state transmission licensee in the State of UP and was entrusted to implement as well as operate “Evacuation of power from Obra-C (2x660 MW) Thermal Power Project and Construction of 400 KV GIS sub-station, Badaun with associated transmission lines” hereinafter referred to as “the project” on Build, Own, Operate & Maintain basis under TBCB mode, for which Transmission Service Agreement (TSA) dated 15th October, 2018 was entered between the 1st Respondent and LTTCs. A supplementary TSA dated 15.10.2020 was also signed between 1st Respondent and LTTCs along with 2nd Respondent - UPPTCL in which UPPTCL was nominated by LTTCs to act as their nominee while indemnifying UPPTCL from any claim.

4. The Schedule Commercial Operation Date (SCOD) of the project as per Schedule -3 of TSA for LOT-1 was 21st November, 2020, for LOT-II was 1st February, 2021.

5. It appears that the implementation of the project was delayed on account of various Force Majeure events as contended by the 1st Respondent. Accordingly, various notices were addressed in this

regard by the 1st Respondent to the LTTCs informing them about the Force Majeure events, the details of which are as under :- (a) Stoppage of construction due to flooding of construction sites (Notice dated 28.09.2019 & 15.10.2019)

(b) Delay in grant of transmission license/ in adoption of Tariff in grant of authorisation under Section 164 of the Act (Notice dated 18.10.2019)

(c) Cessation of force majeure event of flooding of location and approach due to heavy monsoon (Notice dated 11.11.2019)

(d) ROW issues due to delays in receiving authorisation under Section 164 of the Act (Notice dated 14.11.2019)

(e) Sudden strike called by employees of UPPCL (Notice dated 28.11.2019)

(f) Imposition of Section 144 due to protests against Citizenship Amendment Act (Notice dated 23.12.2019 & 10.01.2020)

(g) Delay in receipt of materials due to closing enterprises in China because of Covid-19 pandemic (Notice dated 20.02.2020)

(h) Imposition of lockdown and restriction imposed by Government of Uttar Pradesh due to Covid-19 pandemic (Notice dated 23.03.2020)

(i) Imposition of countrywide lockdown due to Covid-19 pandemic (Notice dated 26.03.2020)

(j) Extension of countrywide lockdown due to Covid-19 pandemic (Notice dated 15.04.2020, 04.05.2020 & 18.05.2020)

(k) Restrictions and lockdown imposed due to Covid-19 pandemic (Notice dated 06.06.2020, 04.07.2020, 20.08.2020, 14.09.2020 & 23.10.2020)

(l) Lockdown imposed due to Covid-10 Pandemic (Notice dated 29.04.2021)

6. Subsequently, while letters dated 23rd March, 2021 and 2nd April, 2021, the 1st Respondent intimated the LTTCs about the deemed COD of Element 1 and Elements 2 to 8 of LOT-1 as 30th March, 2021 and 9th April, 2021 respectively. The 1st Respondent also claimed entitlement of transmission charges from these dates. Thereafter, the 1st Respondent started raising monthly transmission charges invoices for both Element I as well Elements 2 to 8 of LOT I

of the project from the date of said deemed COD along with supplementary bills towards late payment surcharge.

7. Vide letter dated 1st December, 2021, Appellant No. 4 – PVVNL informed 1st Respondent that it has considered the deemed COD of Element I and Elements 2 to 8 of LOT-I as 30th April, 2021 and 16th April, 2021 respectively, which was disputed by the 1st Respondent vide the reply dated 1st December, 2021.

8. At the same time, Appellant No. 1 – UPPCL vide letter dated 7th December, 2021, raised invoices verification statement of Rs.8,61,37,692/- as recoverable amount towards liquidated damages for delay of 38 days and 53 days in achieving deemed COD of these elements i.e. Element I and Elements 2 to 8 of LOT-I respectively. Vide reply dated 15th December, 2021, 1st Respondent stated that it was entitled to extension of SCOD of LOT-I on account of Force Majeure events as per Article 4 and 4.1 & 2 of TSA as well as on the basis of notifications dated 27th July, 2020 and 12th June, 2021 issued by Ministry of Power, Govt. of India on account of Covid-19 Pandemic and nationwide lockdown thereby granting extension of 5 months and 3 months respectively to the SCOD of all transmission projects.

9. In these circumstances, the 1st Respondent had approached the Commission with petition No. 1824 of 2022 claiming extension of SCOD for LOT-I elements of its project i.e. Element Nos. 1 to 8 by a period of 8 months and a declaration that Appellant No. 1 is not entitled to levy liquidated damages for any delay in commissioning of these elements. Following Force Majeure events were agitated by the 1st Respondent in this petition:- “A. Heavy rainfall leading to flooding of pits excavated for laying down foundation of transmission towers.

B. Delay in grant of Transmission License by the Ld. UPERC.

C. Delay in adoption of tariff by the Ld. UPERC.

D. COVID-19 pandemic.

E. Delay in grant of authorization under Section 164 [Exercise of powers of Telegraph Authority in certain cases] of the Act.

F. Strike called by employees of UPPCL.

G. Public protests against the Citizenship Amendment Bill.

10. The petition was disposed of by the Commission vide impugned order dated 3rd October, 2022 thereby rejecting the claim of the 1st Respondent with regards to all the Force Majeure events except Covid-19 Pandemic. Accordingly, the Appellants are

aggrieved by the impugned order of the Commission in so far as it has upheld the claim of Respondent No. 1 for extension of COD of Element I till its deemed COD accepted by LTTCs i.e. 30th April, 2021 and that of the Elements 2 to 8 till their deemed COD accepted by LTTCs i.e. 16th April, 2021 considering the Covid-19 Pandemic as the Force Majeure events affecting the completion of the project.

11. Thus, the only issue involved in the appeal for our consideration is :- “Whether the Covid-19 Pandemic and subsequent lockdown imposed by the Government of India constituted a Force Majeure event in terms of the provisions of the TSA executed between the parties entitling the 1st Respondent to extension of SCOD of the project”.

12. According to the Appellants, the impugned order warrants interference by this Tribunal in this appeal on account of the following:- “A. The conclusion that OBTL has been affected by a force majeure on account of the COVID-19 pandemic has been reached under the Impugned Order without undertaking any analysis or setting

out any reasoning. To such extent, the Impugned

Order

has been rendered indefensible & unsustainable in light of the settled legal principles.

B. OBTL's prayer for and arbitrary blanket extension of 8 months in terms of the MOP notifications dated 27.07.2020 & 12.06.2021 has been rejected under the Impugned Order by holding that the same do not apply in the present case. Further, the Impugned Order holds that the question as to whether force majeure has occurred in particular case or not will be decided by the Ld. UPERC on a case-to-case basis considering scope of project, extent, duration of impact, its effects, etc. However, the Impugned Order fails to take such findings to their logical sequitur as such analysis is conspicuous by its absence under the Impugned Order.

C. In granting an extension in SCOD of 160 days qua Element 1 & 146 days qua Elements 2 to 8 of LOT- 1 of the Project, the Impugned Order fails justify the grant of such extension on a "day for day basis" as mandated by Article 4.4.2 of the TSA. To such extent, the Impugned Order rendered by Ld. UEPRC is contrary to the TSA provisions.

D. By way of its notice dated 21.09.2020, issued in purported compliance of Article 6.1.1 of the TSA, OBTL intimated 21.11.2020 as the firm & fixed date on which Elements 1 to 8 of LOT-1 of its Project would achieve COD. In effect, OBTL admitted and conceded that the construction of the aforesaid elements was not affected/hindered in any manner. Therefore, applying the principles of law settled by the Hon'ble Supreme Court in a catena of judgments including, Energy Watchdog v. CERC & Ors. reported as (2017)14 SCC 80, no force majeure event occurred insofar as construction of Elements 1 to 8 of OBTL's Project is concerned.

E. Instead of appreciating its true meaning, import and effect, the Impugned Order inexplicably classifies OBTL's notice dated 21.09.2020 as a force majeure mitigation step covered by Article 11.6 of the TSA.

F. Having taken cognizance of the fact that the State Transmission Utility i.e. Nominee of LTTC's had already granted months extension for transmission projects under construction as of 25.03.2020 on account of the COVID-19 pandemic, the Impugned Order is unjustified in granting an extension of 160 days qua Element 1 & 146 days

qua Elements 2 to 8 without any analysis or justification to substantiate such divergence. G. Having inter alia held under its order dated 03.06.2022 that the presence of UPPTCL, being the STU & nominee of lead LTTCs during the construction period, was of utmost necessity for adjudication of Petition No. 1824/2022, the Impugned Order issued in complete ignorance of UPPTCL's only effective pleading (i.e., application for re-hearing) is unsustainable.”

13. We have heard Mr. Abhishek Kumar, Learned Counsel for the Appellant and Mr. Sourav Roy, Learned Counsel for the 1st Respondent. We have also perused the written submissions filed by the Learned Counsels.

14. Learned Counsel for the Appellants strenuously argued that despite holding the notification dated 27th July, 2020 and 12th June, 2021 issued by Ministry of power, Government of India are inapplicable to the intra-sate transmission project in question of 1st Respondent and that the occurrence of Force Majeure has to be examined on case to case basis considering the scope of project, extent, duration of impact, its effects, etc., the Commission has failed to take its own findings to their logical sequitur by failing to do any

such analysis. It is submitted that without any detailed analysis with regards to the scope of the project, extent and duration of the impact of Covid-19 Pandemic upon it, the Commission has concluded in one single paragraph that delay in achieving COD of the elements 1 to 8 was due to Covid-19 Pandemic and deserved to be condoned.

15. Learned Counsel would argue that these findings of the Commission are contrary to the Articles 4 & 4.2 of the TSA which provides that any extension ought to be granted on a day for day basis. It is also argued by the Learned Counsel that the Commission has failed to take notice of the order dated 24th March, 2020 issued by Ministry of Home Affairs, Government of India exempting the power transmission licensees from lockdown and subsequent order dated 16th April, 2020 exempting erection of power transmission lines from lockdown. It is pointed out to the Learned Counsel that 2nd Respondent – UPPTCL had granted an extension of three months on account of Covid-19 Pandemic but no analysis has been done in the impugned order as to why such three months extension was insufficient for completing of the project of 1st Respondent necessitating extension of 160 days for Element I and 146 days for Element 2 to 8.

16. Learned Counsel also referred to the letter dated 21st September, 2020 issued by the 1st Respondent intimating that the Elements 1 to 8 of the project would be ready for SCOD i.e. 21st November, 2020. It is his submission that this letter is a categorical admission on the part of the 1st Respondent that its performance was not affected by any Force Majeure event and therefore, claim for extension of SCOD ought to have been rejected on the basis of the said letter.

17. Per contra, it is argued on the behalf of Learned Counsel for Respondent No. 1 that the Commission has considered all the relevant facts and documents while recognizing Covid-19 Pandemic as a Force Majeure event under Article 11 of the TSA, and has lawfully extended SCOD of LOT-1 in terms of Article 4 & 4.1 of the TSA. It is submitted that the Commission rightly found that the Respondent No. 1 has served proper notices on the Appellants under Article 11.5 of TSA informing them about the outbreak/spread out Covid-19 Pandemic amounted to Force Majeure events. It is also submitted that the letter dated 21st September, 2020 issued by 1st Respondent merely reflected the bonafide efforts of 1st Respondent to mitigate the impact of Covid-10 Pandemic and to endeavor to meet

the SCOD. It does not constitute waiver or abandonment of the previously issued Force Majeure notices and must be read with the subsequent Force Majeure notice dated 23rd October, 2020 issued by 1st Respondent to LTTCs again citing Force Majeure as a reason for delay in achieving SCOD.

18. Learned Counsel for the 1st Respondent would further argue that the grant of three months extension from 21st November, 2020 to 21st February, 2021 by the Appellants themselves indicates that they have accepted that the project was affected by Force Majeure events post 21st September, 2020. The reliance is placed upon the judgement of Hon’ble Supreme Court in Mumbai International Airport (P) Ltd. Vs. Golden Chariot Airport, (2010) 10 SCC 422 canvassed that a party to any legal proceedings cannot be permitted to raise contradictory pleas. Learned Counsel would further argue that by not objecting to any Force Majeure notice issued by 1st Respondent, the Appellants shall be taken to have accepted all the notices and, therefore, were precluded from objecting to the claim of 1st Respondent before the Commission. On these submissions, Learned Counsel sought dismissal of the appeal .

Our Analysis

19. We find that discussion of the Commission on the issue “outbreak of Covid-19 Pandemic as Force Majeure event” is in the paragraph Nos. 99 to 102 of the impugned order which are extracted hereinbelow:- “99. The Petitioner vide notice dated 26.03.2020 issued notice to UPPTCL and LTTCs regarding force majeure on account of outbreak of Covid-19 in the Country. It was informed that as a precautionary measure to restrict the spread of Covid-19, national wide lockdown was imposed for 21 days effective from 25.03.2020. Due to imposition of lockdown and restriction in movement, the Petitioner faced issues related to non-availability of goods and material, disruption of supply and execution schedule, administrative support from the Government, transportation and accessibility issues, delay in compensation payment to landowners, availability of manpower, unworkable condition etc. Subsequently, various notices vide dated 15.04.2020, 04.05.2020, 18.05.2020, 06.06.2020, 04.07.2020, 20.08.2020, 14.09 2020, 23.10.2020 and 29.04.2020 were sent to LTTC's to update them regarding the current situation with respect to Covid-19 and how the same affect the Petitioner in completion the project. Petitioner's activities of

transmission line came to halt with effect from 25.03.2020.

100. At the outset, it would be prudent to first examine advance notice dated 21.09.2020 regarding charging/commissioning of elements, before getting into the merits of relief claimed under force majeure on account of Covid-19 pandemic, as it has been argued by the Respondents that since Petitioner has issued notice dated 21.09.2020 stating that LOT-1 would be ready by Scheduled SCOD therefore, all the force majeure notices prior to notice dated 21.09.2020, get blurred out and are irrelevant in view of Petitioner's categorical admission under the said letter. On perusal of records, the Commission noted that notice dated 21.09.2020 provides that LOT-1 having eight elements would be ready for charging/ commissioning by 21.11.2020. It is pertinent to mention that the Petitioner was affected by the force majeure event on account of Covid-19 which could not be denied as then prevailing situation was known to everyone. However, Petitioner in terms of Article 11.6 of the TSA was duty bound to perform and mitigate the effects of any event of force majeure as soon as practical. Therefore, it can be agreed that Petitioner was trying to fulfil its obligation to commission the project on time considering its duty to perform under the TSA to mitigate the effect of any event

of force majeure while using its reasonable efforts. Therefore, the argument of the Respondents regarding non acceptance of all the force majeure notices prior to notice dated 21.09.2020 cannot be agreed as the Petitioner has made reasonable efforts in trying to commission the project on time, which ultimately got delayed due to continued effects of pandemic.

101. While coming on merits, it is pertinent to mention that National Disaster Management Authority issued order dated 24.03.2020 directing Ministries/ Departments of Government of India (GOI), State Governments and State Authorities to take measures to prevent the spread of Covid-19 in the country. In pursuant to the same, Ministry of Home Affairs issued order dated 24.03.2020 and various subsequent guidelines from time to time for their strict implementation. The Government of Uttar Pradesh also issued guidelines from time to time.

102. The Commission has observed that the Petitioner from time to time has issued various force majeure notices to LTTCs and UPPTCL intimating about the force majeure on account of outbreak of Covid-19 pandemic. UPPCL vide letter dated 10.08.2020 denied force majeure notice dated 04.07.2020 by stating that the GOI made it clear that construction activities including laying/ erecting power transmission line were allowed during the period of

lockdown subject to proper precaution and social distancing measures being followed. However, GOI and various authorities have allowed the extension of SCOD on account of Covid-19 pandemic like MOP vide notification dated 27.07.2020 have allowed five months extension to all inter-state transmission projects which were under construction as on date of lockdown i.e. 25.03.2020. Further, MOP vide notification dated 12.06.2021 gave another three months, extension to the inter-state transmission projects which are under construction with SCOD coming after 01.04.2021. Also, MNRE vide Office Memorandum dated 17.04.2020 has also treated Covid-19 as a force majeure event and considered similar extension of time in SCOD. Further, in view of the extraordinary circumstances which prevailed due to Covid-19, nationwide lockdown and in compliance of order dated 30.05.2020 of Ministry of Home Affairs, UPPTCL gave three months time extension to its turnkey projects/ supply contracts/ work contracts in force on 25.03.2020 with provision to consider relaxation on case- to-case basis/ as a whole depending on the situation in future. As stated in letter dated 07.12.2021 of UPPCL, LTTCs in the instant case has also allowed extension of three months in SCOD of the LOT-1.”

20. Perusal of the above quoted portion of the impugned order of the Commission would reveal that the Commission has taken note of

the rival submission of the parties, Force Majeure notices issued by the 1st Respondent to the Appellants, the applicability of notification dated 23rd July, 2020 and 12th June, 2021, issued by Ministry of Power, Govt. of India and the O.M. dated 17th April, 2020 issued by Ministry of Renewable Energy (MNRE) Govt. of India as well as the three months time extension granted by UPPTCL itself to its turn key projects, supply contracts, work contracts in force on 25th March, 2020 in view of nationwide lock down to Covid-19 Pandemic and accordingly came to conclusion that the 1st Respondent is entitled to seek extension of SCOD on account of Covid-19 Pandemic.

21. Therefore, the submissions made on behalf of the Appellants that the Commission has concluded in just one single paragraph that the delay in achieving COD of the Elements 1 to 8 was on account of Covid-19 Pandemic without any detailed analysis, cannot be countenanced and are liable to be rejected forthwith. Manifestly, the Commission has analyzed in detail the submissions of the parties on this aspect as well as relevant material on record before reaching the conclusion that delay in achieving SCOD of Element 1 to 8 of LOT-1 of the project by the 1st Respondent was due to Covid-19 Pandemic.

22. Further, we may note that Article 4.4. of the TSA executed between the parties provides for extension of time and is extracted hereinbelow :- “4.4 Extension of time: 4.4.1 In the event that the TSP is prevented from performing its obligations under Article 4.1(a), (b) and (e) by the stipulated date, due to any Long Term Transmission Customers' Event of Default, the Scheduled COD shall be extended, by a 'day for day' basis, subject to the provisions of Article 13. 4.4.2 In the event that an Element or the Project cannot be commissioned by its Scheduled COD on account of any Force Majeure Event as per Article 11, the Scheduled COD shall be extended, by a 'day for day' basis, for a maximum period of one hundred and eighty (180) days. In case the Force Majeure Event continues even after the maximum period of one hundred and eighty (180) days, the TSP or the Majority Long Term Transmission Customers may choose to terminate the Agreement as per the provisions of Article 13.5. 4.4.3 If the Parties have not agreed, within thirty (30) days after the affected Party's performance has ceased to be affected by the relevant circumstance, on how long the Scheduled COD should be deferred by, any

Party may raise the Dispute to be resolved in accordance with Article 16.”

23. Article 4.4.2 is relevant for our consideration which provides that in case an Element or the project cannot be commissioned by the SCOD on account of Force Majeure event envisaged under Article 11, the SCOD shall be extended for a maximum period of 180 days and in case the Force Majeure event continues even after the said period of 180 days, the transmission service provider or the majority of LTTCs may refuse to terminate the agreement.

24. Article 11 of the TSA specifies the Force Majeure events and the consequences thereof. The same is reproduced hereinbelow :- “ARTICLE : 11

FORCE MAJEURE 11.1 Definitions 11.1.1 The following terms shall have the meanings given hereunder. 11.2 Affected Party 11.2.1 An Affected Party means any of the Long Term Transmission Customers or the TSP whose performance has been affected by an event of Force Majeure. 11.2.2 An event of Force Majeure affecting the CTU/STU or any agent of the Long Term Transmission

Customers, which has affected the Interconnection Facilities, shall be deemed to be an event of Force Majeure affecting the Long Term Transmission Customers. 11.2.3 Any event of Force Majeure shall be deemed to be an event of Force Majeure affecting the TSP only if the Force Majeure event affects and results in, late delivery of machinery and equipment for the Project or construction, completion, commissioning of the Project by Scheduled COD and/or operation thereafter; 11.3 Force Majeure

A 'Force Majeure' means any event or circumstance or combination of events and circumstances including those stated below that wholly or partly prevents or unavoidably delays an Affected Party in the performance of its obligations under this Agreement, but only if and to the extent that such events or circumstances are not within the reasonable control, directly or indirectly, of the Affected Party and could not have been avoided if the Affected Party had taken reasonable care or complied with Prudent Utility Practices:

(a) Natural Force Majeure Events: act of God, including, but not limited to drought, fire and explosion (to the extent originating from a source external to the Site), earthquake, volcanic eruption, landslide, flood, cyclone,

typhoon, tornado, or exceptionally adverse weather conditions which are in excess of the statistical measures for the last hundred (100) years.

(b) Non-Natural Force Majeure Events: i. Direct Non-Natural Force Majeure Events

• Nationalization or compulsory acquisition by any Indian Governmental Instrumentality of any material assets or rights of the TSP; or

• the unlawful, unreasonable or discriminatory revocation of, or refusal to renew, any Consents, Clearances and Permits required by the TSP to perform their obligations under the RFP Project Documents or any unlawful, unreasonable or discriminatory refusal to grant any other Consents, Clearances and Permits required for the development/ operation of the Project, provided that a Competent Court of Law declares the revocation or refusal to be unlawful, unreasonable and discriminatory and strikes the same down; or

• any other unlawful, unreasonable or discriminatory action on the part of an Indian Governmental Instrumentality which is directed against the Project, provided that a Competent Court of Law declares the action to be unlawful, unreasonable and discriminatory and strikes the same down. ii. Indirect Non - Natural Force Majeure

Events

• act of war (whether declared or undeclared), invasion, armed conflict or act of foreign enemy, blockade, embargo, revolution, riot, insurrection, terrorist or military action; or

• radioactive contamination or ionising radiation originating from a source in India or resulting from any other Indirect Non Natural Force Majeure Event mentioned above, excluding circumstances where the source or cause of contamination or radiation is brought or has been brought into or near the Site by the Affected Party or those employed or engaged by the Affected Party; or

• industry wide strikes and labour disturbances, having a nationwide impact in India/statewide impact in Uttar Pradesh. 11.4 Force Majeure Exclusions 11.4.1 Force Majeure shall not include (i) any event or circumstance which is within the reasonable control of the Parties and (ii) the following conditions, except to the extent that they are consequences of an event of Force Majeure:

(a) Unavailability, late delivery, or changes in cost of the machinery, equipment, materials, spare parts etc. for the Project; (b) Delay in the performance of any Contractors or their agents;

(c) Non-performance resulting from normal wear and tear typically experienced in transmission materials and equipment; (d) Strikes or labour disturbance at the facilities of the Affected Party; (e) Insufficiency of finances or funds or the Agreement becoming onerous to perform; and (f) Non-performance caused by, or connected with, the Affected Party's: i. negligent or intentional acts, errors or

omissions; ii. failure to comply with an Indian Law; or

iii. breach of, or default under this Agreement or any Project Documents.”

25. Undisputedly, there is no specific reference to a pandemic as a Force Majeure event under Article 11.3. Understandably so, since the last pandemic of comparable magnitude, the Spanish Flu of 1918–1920, had occurred nearly a century earlier. Given the remarkable advances in medical science since then, no one could have anticipated that a pandemic of such magnitude could once again strike the world, with devastating consequences, bringing normal life and economic activity across the globe to a virtual standstill. COVID-19 was a catastrophe of immense magnitude, spreading across the globe and disrupting not only the normal course of daily life but also adversely affecting the mental health of people and the economies of nations. It caused severe social and economic disruption worldwide, resulting in over seven million confirmed deaths globally. A careful perusal of the first paragraph of Article 11.3 makes it clear that COVID- 19 satisfies the attributes prescribed therein for an event to qualify as a Force Majeure Event. This is particularly so since COVID-19 does not fall within any of the exclusions specified in Article 11.4.1. However, while a pandemic like COVID-19 is closest in nature and origin to the events described in Article 11.3(a), relating to Natural Force Majeure Events, its consequences, particularly the disruption of work and movement of goods and personnel pursuant to governmental orders issued to contain the pandemic, bear a closer resemblance to the events contemplated under Article 11.3(b),

relating to Non-Natural Force Majeure Events. A close examination of the TSA, however, reveals that the distinction between Natural and Non-Natural Force Majeure Events is not material for deciding the issue in the present appeal.

26. Covid-19 Pandemic has already been recognized as Force Majeure event by the Govt. of India, MNRE as well as UPPTCL itself by granting extensions to the transmission project which were under construction as on date of lockdown i.e. dated 25th March, 2020. It is true that the notifications dated 27th July, 2020 and 12th June, 2021 issued by Ministry of power granting 5 months extension to the transmission projects were applicable to inter-state transmission projects only but that cannot be taken to indicate that Covid-19 Pandemic was not a Force Majeure event in respect of intra-state transmission projects. Even otherwise also, the Appellants have not contested that fact that Covid-19 Pandemic was a Force Majeure event. Their only contention is that the 1st Respondent was not entitled to the extension of the SCOD of its project as its progress was not hampered in any manner by the Covid-19 Pandemic.

27. The Appellants have not disputed the fact that 1st Respondent has issued various Force Majeure notices dated 20th February, 2020,

23rd March, 2020, 26th March, 2020, 15th April, 2020, 29th April, 2020, 4th May, 2020, 18th May, 2020, 6th June, 2020, 4th July, 2020, 20th August, 2020, 14th September, 2020 and 23rd October, 2020 intimating them about the impact of Covid-19 Pandemic upon the progress of the project and seeking extension of SCOD of the project as per Article 4.4 of the TSA. Concededly, none of the notice has been responded to by the Appellants. The Appellants maintained stoic silence on these notices in which claim for extension of SCOD of the project was made by the 1st Respondent specifically. Therefore, the Appellants shall be presumed to have accepted the fact that the project of the 1st Respondent got impacted by the Covid-19 Pandemic.

28. Relying upon the communication dated 21st September, 2020 issued by the 1st Respondent to Appellants, intimating that the project would be ready for commissioning by the 21st November, 2020, it is argued on behalf of the Appellants that there was a categorical admission on behalf of the 1st Respondent that this project was not in any way affected by the Force Majeure event, and, therefore, the claim for extension of SCOD ought to have been rejected. We do not find any force in the submission on behalf of the Appellants. Perusal

of the communication dated 21st September, 2020 does reveal that the 1st Respondent had notified the Appellants that the project would be ready for charging and commissioning by 21st November, 2020. However, the contents of the said communication need to be read juxtaposition with subsequent Force Majeure notice dated 23rd October, 2020 issued by the 1st Respondent, as argued by the learned Counsel for the 1st Respondent. In the said subsequent notice, the 1st Respondent has referred to the order dated 30th September, 2020 issued by the Union Home Secretary, thereby extending the lockdown in containment zones upto 31st October, 2020. It has further been stated in the said notice that in view of the said order of the Government, the 1st Respondent is facing following issues :-

• “Movement of gangs has been affected since transportation of labours in groups is limited and hence causing delay in getting required no. of labours at site in timely manner. Due to suspension of railway services, interstate movement of gangs has been affected.

• Administrative support from the Government are still very limited. Also, due to identification of containment zones, few of the Collector offices have limited staff & closed majority of times.

• Accessibility to landowners for resolving ROW issues for various locations is getting affected due to fear in villagers for Covid-19 spread & so they show resistance for meeting & thereby clearance of ROW.

• Delay in compensation payment to landowners due to limited staff available in banks which results in prolongation for issuance of Demand Drafts, which delays construction activities.

• Availability of manpower to achieve the desired output of the contract works.

• Processing of Statutory proposals like NH, Forest clearance as these are not moving as per desired pace.

• Liasoning part for applying shutdowns (various crossings like Power line/Railways/NHAI) affected.

• Due to identification of Containment zones, few of our site offices were also closed as per instructions from administration.”

29. The 1st Respondent has further sated in the said notice that despite being affected by the Force Majeure event, they are making best efforts to mitigate the effects of Force Majeure and are making endeavour to complete the project by the SCOD. Accordingly, the request for grant of extension of COD was reiterated in the said notice.

30. What is relevant to note is that the order dated 30th September, 2020 issued by Union Home Secretary along with the guidelines was post the notice dated 21st September, 2020 issued by 1st Respondent to the Appellants and, therefore, once the 1st Respondent realized that the progress of the project would get further impacted in view of the restrictions placed by virtue of order dated 30th September, 2020 of the Union Home Secretary, it immediately intimated the Appellants about the same vide notice dated 23rd October, 2020 as detailed hereinabove. Therefore, in these circumstances, it would be totally incorrect and unjust to accept that in view of the contents of the communication dated 21st September 2020 issued to the 1st Respondent, performance of its project was not affected by any Force Majeure event.

31. Letter dated 7th December, 2021 addressed by UPPCL to Superintendent Engineer (Electricity), Import-Export & Payment Circle, Lucknow, with a copy to the 1st Respondent, is also pertinent on this aspect and needs to be taken note of. Vide the said letter, UPPCL has itself granted three months extension of SCOD to the Elements 1 to 8 of LOT-I of the project of 1st Respondent i.e. from 21st November, 2020 to 21st February, 2021. Apparently, the

extension has been granted on account of the impact of Covid-19 Pandemic on the progress of transmission projects, even though, it is not said so specifically in the same. Nothing has been brought on record on behalf of the Appellants to contend otherwise. Therefore, once the UPPCL itself acknowledged the Covid-19 Pandemic as Force Majeure event and granted extension of three months, SCOD of the project itself, the Appellants cannot be heard to contend that the Commission committed any error or illegality in holding the 1st Respondent entitled to extension of COD of its project on account of Covid-19 Pandemic.

32. What comes out of the above analysis is that the 1st Respondent has regularly been apprising the Appellants about the occurrence of Force Majeure event (i.e. Covid-19 Pandemic) right since 20th February, 2020 (date of first Force Majeure notice) till 23rd October, 2020 (last Force Majeure notice) with the request for extension of SCOD of the project under Act 4.4. of the TSA. The Appellants chose not to respond to any of these notices and maintained stoic silence. Covid-19 Pandemic, as a Force Majeure event, falls in Article 11.3(b)(ii) of the TSA. There is nothing on record to suggest that the project of the Appellant was not delayed or in any manner impacted by Covid-19 Pandemic. Ministry of power, Govt. of

India, has vide notifications dated 25th March, 2020 and 12th February, 2021 granted 5 months extension to the inter-state transmission projects, the benefit of which must enure to the intra- state transmission projects too. UPPCL (i.e. Appellant No. 1) itself granted three months extension of SCOD to the project of 1st Respondent vide letter dated 07.12.2021 on account of Covid-19 Pandemic. Considering all these facts and circumstances, we are unable to fathom that the Commission has erred in passing the impugned order.

Conclusion

33. Having regard to the above discussion, we are not able to find any error or infirmity in the impugned order of the Commission. The appeal is devoid of any merit and is hereby dismissed accordingly. All pending IAs shall also stand disposed of. Pronounced in the open court on this 29th day of September, 2026.

Ajay Talegaonkar Technical Member (Electricity)

Virender Bhat Judicial Member ✓ REPORTABLE / NON REPORTABLE js