The duty of generating companies under Section 10(1) of the Electricity Act,2003, to establish, operate, and maintain generating stations and transmission lines justified the collection of O&M charges by TANGEDCO.

1. All these Writ Petitions have been filed, challenging the proceedings of the Chief Engineer, NCES, TANGEDCO, Chennai, dated 16.11.2010, and the consequential proceedings, dated 25.06.2011, in respect of demand of O&M charges for the petitioners' Wind Energy Generators, and to quash the same.

2. Since all these Writ Petitions involve a common question of law, they are being disposed of in common. For the sake of disposal, let me take the facts in W.P.No.18799 of 2011.

2.1. The petitioner is a 50 year old business enterprise, which is among the most well respected industrial houses in the country. It is engaged in the manufacture of various types of cement known for its quality in India as well as other parts of the world. The current annual production of the petitioner is in the order of 6 million tonnes with annual turnover exceeding Rs.1000 crores and the product is marketed not only in the southern States but also in other regions. The company is one of the major exporters of cement to various parts of the world, particularly, Sri Lanka, Bangladesh and South Africa. For the said purposes, it has set up its cement factory at RR Nagar, Virudhunagar District, Tamil Nadu.

2.2. Being encouraged by the policies in relation to wind energy generation in the State of Tamil Nadu, the petitioner had invested heavily in wind energy generators and substantial portion of the energy generated by the wind turbines set up by the petitioner is being wheeled for its own use. In so far as the expenditure in relation to setting up of wind turbines is concerned, the same is borne by the WEGs, such as the petitioner. However, as per Section 10 of The Electricity Act,2003, in short, "the Act", the generating companies are required to establish, operate and maintain generating stations, sub-stations and transmission lines. Initially, the WEGs. were small scale operators and could not erect the facilities required to transmit the electricity generated by them into the TNEB grid and, therefore, the TNEB took on the responsibility of erecting separate sub-stations for the benefit of such small scale WEGs. The TNEB sought to collect the expenditure for erecting such sub-stations from the WEGs in the name of Infrastructure Development Charges (IDC). The same were imposed by the TNEB since 1995 and the TNEB had been continuing the regime even after coming into force of the Act. This action of the TNEB in seeking to impose IDC was challenged before the TNERC on the ground that specific permission had not been sought from the TNERC as per Section 32 of the Act and the TNERC held IDC to be invalid on the ground that the same was not contemplated as per the provisions of Section 32. On appeal, the Appellate Tribunal for Electricity overruled the decision of the TNERC and upheld IDC on the ground that the same was a result of the respective contractual obligations of TNEB and WEGs. The ruling of the Appellate Tribunal has been challenged and the same is pending before the Hon'ble Supreme Court. Levy was upheld by the Appellate Tribunal only on the ground that it was the wind mill developer who had agreed to pay the IDC by entrusting the task of setting up of the infrastructure to TNEB. The said judgment has been misconstrued by the respondents to allow them to collect charges on the ground of an agreement between the parties.

2.3. After the coming into force of the Act, the statute under the provisions contained in Sections 10 and 42 has introduced the concept of Open Access, which essentially means that any generator would, upon satisfaction of the conditions, be entitled as a matter of right to use the transmission facilities of a distributor/transmission licensee. Such Open Access is statutorily required to be regulated by framing of Regulations. The TNERC has already notified the "Tamil Nadu Electricity Regulatory Commission - Intra State Open Access Regulations 2005", in short, "the Regulations" which regulate the open access. The charges for