INDIA Law and Practice Contributed by: Anupam Varma, Poonam Verma Sengupta, Sakshi Kapoor and Rajesh Jha, JSA
• Timelines : Transmission licensees are required to commission the transmission system by the pre- scribed SCOD. Failure to achieve the SCOD may result in contractual and regulatory consequences, including liquidated damages or other remedies under the applicable project documents. • Availability norms : The transmission facilities are typically required to maintain a near perfect Nor- mative Annual Transmission Availability Factor for AC systems to secure full tariff recovery. • Safety and quality : The transmission facility must strictly comply with the CEA’s technical, safety and grid connectivity standards. A comprehensive site safety framework is required to be put in place to cover fire prevention, public health and security. • Regulatory oversight : The transmission licensee is required to submit detailed monthly progress reports to the relevant nodal agency, ie, the CTU for inter-state networks or the STU for intra-state lines, and the CEA throughout the construction phase. • Project - specific conditions : Additional conditions may be imposed under project-specific statutory approvals. For example, where a transmission line traverses forest land, the approval may require compensatory afforestation, compliance with wild- life protection measures and other environmental mitigation requirements. The appropriate Commission may amend the terms and conditions of a transmission licence either on its own motion, in the public interest, or upon an applica- tion made by the transmission licensee, in accordance with the applicable licensing regulations. Proposed amendments are published for comments or objec- tions before being finalised. 4.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Transmission Lines and Associated Facilities Transmission licensees do not have inherent powers of eminent domain or compulsory acquisition under Indian law. Land required for substations and other permanent infrastructure is generally acquired through negotiated purchase or lease, allotment of govern- ment land or, where applicable, acquisition by the appropriate government under the LARR Act.
For transmission lines, the appropriate government may, under Section 164 of the Electricity Act, confer upon a transmission licensee the powers of a Tele- graph Authority to place and maintain transmission lines over private or public land without acquiring ownership of the land. The landowner retains own- ership, while the transmission licensee is granted a statutory right of user for construction, operation and maintenance of the transmission system. Compensation Transmission licensees are required to compensate affected landowners for damage caused during con- struction and maintenance of the transmission line. Under the MoP’s Right of Way Guidelines, compensa- tion is payable for the tower base area and for dimi- nution in the value or use of land within the transmis - sion corridor, with the applicable rates determined in accordance with the relevant state policy. In practice, transmission licensees generally seek to negotiate rights of way with landowners before invoking pow- ers under Section 164. Disputes relating to access or compensation are ordinarily dealt with by the District Magistrate (DM) or the competent court, as applica- ble. The DM is empowered to enforce the Right of Way and mandate police protection. 4.5 Monopoly Rights to Provide Transmission Services Transmission entities do not enjoy exclusive or monopoly rights to provide transmission services within a specified geographical territory in India. The Electricity Act adopts a non-exclusive licensing frame- work and does not prohibit multiple transmission licensees from developing or operating transmission systems within the same geographical area, subject to the applicable regulatory approvals. Transmission licences expressly provide that the grant of a licence to one entity does not preclude the appropriate Com- missions from granting a licence to another entity for a different transmission system within the same area. The authority to construct, own and operate transmis- sion facilities is derived from the Electricity Act and is obtained in one of the following ways: • Deemed transmission licensees : The CTU and the STUs along with certain other entities notified
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