IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 21-10-2011 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.Nos.18791,18792,18793,18794,18799,18810,18893,18894,19214, 19215,19570,19571,19155,19156,19157,19158,20435,20436,20449,20827,2 0828,20829,20830,20831,20832,21048,20703,20704,20705,20706,20707,20 708,21212,18974,18984 & 20448 OF 2011 SRI JAGATHGURU TEXTILES MILLS (P) LIMITED, HTSC NO.89 (EEDC), 8/437, SIVANATHAPURAM, VELLAKOIL-638 111, TIRUPPUR DISTRICT, REP.BY ITS MANAGER T.ESWARAN ...PETITIONER IN WP.18791/11, 18792/11 JAYARAJ YARNS INDIA PRIVATE LIMITED 1/255 THIRUCHENCODE MAIN ROAD KOONAVELAMPATTI PUDUR ANDAGALORE GATE RASIPURAM TALUK NAMAKKAL DISTRICT REP. BY MANAGER D.CHANDRASEKARAN. ..PETITIONER IN W.P.18793 OF 2011 18794 OF 2011 MADRAS CEMENTS LIMITED AURAS CORPORATE CENTRE NO.98A DR. RADHAKRISHNAN SALAI MYLAPORE CHENNAI 4 ..PETITIONER IN W.P.18799 OF 2011 18810 OF 2011 SHIVA TEXYARAN LTD (UNIT 2) HTSC NO.351 S.F.NO.371/5 PARUVAI POST KARADIVAVI ROAD KARANAMPETTAI COIMBATORE-641 658 DISTRICT REP. BY ITS MANAGER V. ...PETITIONERS IN W.P.18893 OF 2011 18894 OF 2011 SARMANGAL SYNTHETICS (PVT) LTD HTSC NO.588 136/2 S.METTUPALAYAM VILLAGE KOVILPALAYAM POST POLLACHI-642 110 REP. BY MANAGER R.PONNUSAMY ...PETITIONERS IN W.P.19214 OF 2011 19215 OF 2011 https://hcservices.ecourts.gov.in/hcservices/ M/S. TULSYAN NEC LTD. H.T.SC.NO.1111 39 HARI KRISHNA NAIDU ST AMBATTUR CHENNAI 53 REP BY ITS EXECUTIVE ACCOUNTS MR.V. RAJENDRAN. ..PETITIONERS IN W.P.19570 OF 2011 19571 OF 2011 SJLT TEXTILES (P) LTD. HTSC NO. 241 NH 7 NAMAKKAL TO KARUR MAIN ROAD PILLAIKALATHUR PARAMATHI POST PARAMATHI-VELUR TALUK NAMAKKAL DT REP ITS DIRECTOR V.SELVADURAI ...PETITIONERS IN W.P.19155 OF 2011 19156 OF 2011 SRI JAGATHGURU TEXTILES MILLS (P) LTD UNIT II HTSC NO. 248 (EEDC) 521/1 N.H. MAIN ROAD PACHAPALYAM ROAD OLAPPALAYAM KANGAYAM TIRUPUR DT REP BY ITS MANAGER T. EASWARAN. ..PETITIONERS IN W.P.19157 OF 2011 19158 OF 2011 NARASUS SPINNING MILLS HTSC NO.100 R.C.CHETTYPATTY POST OMALUR TALUK SALEM DISTRICT REP. BY ITS MANAGER G. PANNEERSELVAM ..PETITIONERS IN W.P.20435 OF 2011 20436 OF 2011 INDIAN WIND POWER ASSOCIATION DOOR NO.E 6TH FLOOR TOWER-1 SHAKTHI TOWERS NO.766 ANNA SALAI CHENNAI-2. ..PETITIONERS IN W.P.20449 OF 2011 HINDUSTAN SPINNERS HT SC NO.58 NO.223 METTUPALAYAM ROAD NARASIMMANAICKENPALAYAM COIMBATORE 641 658 DISTRICT REP BY ITS PARTNER D. NATARAJAN ..PETITIONERS IN W.P.20827 OF 2011, 20828/2011 HINDUSTAN TEXTILE B UNIT HTSC NO. 99 NO.30-B 1 ST WARD THIRUMALAINAICKENPALAYAM JOTHIPURAM PO COIMBATORE 641 047 DISTRICT REP BY ITS PARTNER D. NATARAJAN ..PETITIONERS IN W.P.20829 OF 2011, 20830/2011 https://hcservices.ecourts.gov.in/hcservices/ HINDUSTAN SPINNERS B UNIT HTSC NO.100 NO.862/1 BILLICHI VILLAGE BETTATHAPURAM PUDUR KARAMADAI COIMBATORE- 641 104 DISTRICT REPD.BY ITS PARTNER D.NATARAJAN ..PETITIONERS IN W.P.20831 OF 2011, 20832 OF 2011 M/S. SHRI MOOKAMBIKA SPINNING MILLS LTD. HTSC NO.62 TRICHY ROAD VADAMADURAI VEDASANDUR DINDIGUL DISTRICT REP. BY ITS CHIEF GENERAL MANAGER SM.DEIVANAYAGAM. ..PETITIONERS IN W.P.21048 OF 2011 HINDUSTAN HARDWARES NO.356 PATEL ROAD RAM NAGAR COIMBATORE- 641 009 REP. BY ITS PARTNER D.NATARAJAN. ..PETITIONERS IN W.P.20703 OF 2011, 20704/2011 HINDUSTAN TEXTILES HTSC NO.68 NO.1/372 METTUPALAYAM ROAD K.VADAMADURAI POST COIMBATORE-641 017 REP. BY ITS PARTNER D.NATARAJAN. ..PETITIONERS IN W.P.20705 OF 2011/20706 OF 2011 HINDUSTAN COTTON SPINNING MILLS HTSC NO.79 NO.341 METTUPALAYAM ROAD NARASIMMANAICKENPALAYAM COIMBATORE DISTRICT-641658 REPD. BY ITS PARTNER D.SUNDARARAJAN ...PETITIONERS IN W.P.20707 OF 2011, 20708/2011 M/S. CAV COTTON MILLS LTD. TRICHY ROAD VELLABOMMANPATTY VADAMADURAI DINDIGUL DISTRICT REP. BY ITS GENERAL MANAGER CHELLAPPAN. ..PETITIONERS IN W.P.21212 OF 2011 SREE ANANDHAKUMAR MILLS LTD 307 SATHY ROAD SARAVANAMPATTI COIMBATORE 641 035 ..PETITIONERS IN W.P.18974 OF 2011 18984/2011 INDIAN WIND POWER ASSOCIATION DOOR NO.E 6TH FLOOR TOWER-1 SHAKTHI TOWERS NO.766 ANNA SALAI CHENNAI-2. ..PETITIONERS IN W.P.20448 OF 2011 -vs- https://hcservices.ecourts.gov.in/hcservices/ 1. Tamil Nadu Electricity Regulatory Commission, rep, by its Secretary, 19-A, Rukmini Lakshmipathy Salai, (Marshall's Road) Egmore, Chennai 600 008. ..1st Respondent in WP.18791, 18792, 18793,18794, 18893/11, 18894, 19214, 19215, 19570, 19571, 19155, 19156, 19157, 19158, 20435, 20436, 20827, 20828, 20829, 20830, 20831, 20832, 21048, 20703, 20704, 20705, 20706, 20707, 20708, 21212/2011 R5 in W.P.18799, 18810/11, 18974/11, 18984/11 R3 in W.P.20449/2011 20448/2011 2. The Chairman, Tamil Nadu Generation and Distribution Corporation Limited, 144, Anna Salai, Chennai- 600 002. ..2nd Respondent in W.P.18791, 18792, 18793, 18794, 18893, 18894, 19214, 19215, 19570, 19571, 19155, 19156, 19157, 19158, 20435, 20436, 20827, 20828, 20829, 20830, 20831, 20832, 21048, 20703, 20704, 20705, 20706, 20707, 20708, 21212/2011 R1 in W.P.18799, 18810, 20449, 18974, 18984, 20448/2011 3. The Chief Engineer, NCES,(I/C) 144, Anna Salai, Chennai 600 002. ..3rd Respondent, in W.P.18791, 18792, 18793,18794, 18893, 18894, 19214, 19215,19570, 19571, 19155,19156, 19157, 19158, 20435, 20436, 20827, 20828, 20829, 20830, 20831, 20832, 21048, 20703, 20704, 20705, 20706, 20707, 20708, 21212/2011 R2 in W.P.18799, 18810, 20449, 18974, 18984, 20448/2011 https://hcservices.ecourts.gov.in/hcservices/ 3. The Superintending Engineer, Udumalpet, Electricity, Distribution Circle, TANGEDCO, Udumalpet. ..3rd Respondent in W.P.18799/2011 18810/2011. 4.The Superintending Engineer, Erode Electricity Distribution Circle, TANGEDCO, Erode. 4th Respondent in W.P.18791, 18792, 19157/2011, 19158/2011 4.The Superintending Engineer, Namakkal Electricity Distribution Circle, TANGEDCO, TNEB, Namakkal 4th Respondent in W.P.18793, 18794, 19155/2011, 19156/2011. 4.The Superintending Engineer, Chengalpet Electricity Distribution Circle, TANGEDCO, Chengalpet. 4th Respondent in W.P.18799/2011, 18810/2011. 4.The Superintending Engineer, Coimbatore Metro Electricity Distribution Circle, TANGEDCO, TNEB, Coimbatore. 4th Respondent in W.P.18893/2011, 18894/2011. 4.The Superintending Engineer, Mettur Electricity Distribution Circle, TANGEDCO, TNEB, Mettur 4th Respondent in W.P.20435/2011 20436/2011 4.The Superintending Engineer, Coimbatore North Electricity Distribution Circle, TANGEDCO, TNEB, Coimbatore. 4th Respondent in W.P.20827/2011, 20828/2011, 20829, 20830, 20831, 20832, 20703, 20704, 20705, 20706, 20707, 20708/2011 R3 in W.P.18974/2011, 18984/2011. 4.The Superintending Engineer, Coimbatore South Electricity Distribution Circle, TANGEDCO, TNEB, Coimbatore 4th Respondent in W.P.19214/2011 19215/2011. https://hcservices.ecourts.gov.in/hcservices/ 4.The Superintending Engineer, Chennai Electricity Distribution Circle/West, Tamil Nadu Electricity Board, Thirumangalam, Anna Nagar, Chennai-600 040. 4th Respondent in W.P.19570/2011 19571/2011. 4.The Superintending Engineer, Dindigul Electricity Distribution Circle, Dindigul ... 4th Respondent in W.P.21048/2011 21212/2011 4.The Accounts Officer (Revenue) Coimbatore North Electricity Distribution Circle, TANGEDCO ... 4th Respondent in W.P.18974/2011 18984/2011. 5.The Accounts Officer, Erode Electricity Distribution Circle, TANGEDCO, Erode. ... 5th Respondent in W.P.18791, 18792/2011. 5.The Deputy Financial Controller, Namakkal Electricity Distribution Circle, TANGEDCO, TNEB, Namakkal. ... 5th Respondent in W.P.18793, 18794/2011. 5.The Accounts Officer, Coimbatore Electricity Distribution Circle, TANGEDCO, TNEB, Coimbatore. ... 5th Respondent in W.P.18893/2011 18894/2011. W.P.No.18791/2011, 18793, 18893/2011:- WPs filed u/Art 226 of the Constitution of India praying to issue a writ of certiorari Calling for the records of the 3rd respondent Proceedings (CMD) 13 dated 16.11.2010 in respect of O&M Charge towards the petitioner Wind Energy Generators and quash the same as it is contrary to the provisions of the Electricity Act 2003 and against the Regulations of the 1st respondent. W.P.No.18792 of 2011: praying to issue a writ of certiorari Calling for the records of the 3rd respondent in Proceedings No. (CMD) 216 dated 25.6.2011 and the consequential demand by the 5th respondent in respect of O&M Charge of Rs.60,000/- under Serial No.21 as Other Adjustment in the petitioner CCC Bill dated https://hcservices.ecourts.gov.in/hcservices/ 31.7.2011 towards the petitioner Wind Energy Generators and quash the same as it is contrary to the provisions of the Electricity Act 2003 and against the Regulations of the 1st respondent. W.P.No.18794 of 2011: praying to issue a writ of certiorari Calling for the records calling for the records of the 3rd Respondent in Proceedings No. (CMD) 216 dated 25.6.2011 and the consequential demand by the 5th Respondent in so far as it relates to O&M Charge under Serial No.15 as Add/Less Adjustment charge for Rs.12 000/- in the Petitioner CCC Bill dated 30.07.2011 towards the petitioner Wind Energy Generators and quash the same as it is contrary to the provisions of the Electricity Act 2003 and against the Regulations of the 1st Respondent. W.P.No.18799, 18974 of 2011: praying to issue a writ of certiorarified mandamus Calling for the records of the 2nd respondent comprised in (per) TANGEDCO proceedings (CMD) No.216 dt 25.6.2011 and the consequential demands by the 4th respondent in respect of O & M charges under an Adjustment Charge in the petitioners CC Bill dt 5.8.2011 for HT SC No. 730 (W.P.No.18799/2011) Petitioners CC Bill for HT SC No.346 dated 1.8.2011 (W.P.NO.18974/11) for the petitioners Wind Energy Generators and quash the same as being contrary to the provisions of the Electricity Act 2003 and direct the respondents not to make any demands towards O & M charges under the head of Adjustment Charges or any other head. W.P.No.18810/2011 , 18984/2011:- praying to issue a writ of certiorari calling for the records of the 2nd respondent comprised in (per) TANGEDCO proceedings (CMD) No.13 dt 16.11.2010 and quash the same as being contrary to the provisions of the Electricity Act 2003 and the Regulations of the Hon'ble TNERC. W.P.No.18894/2011:- praying to issue a writ of certiorari Calling for the records of the 3rd respondent in TANGEDCO Proceedings No.(CMD) 216 dated 25.6.2011 and the consequential demand by the 5th respondent in respect of O&M Charge of Rs.5,99,483/- under Serial No.15 as Add/ Less Adjustment in the petitioner CCC Bill dated 1.8.2011 HTSC No.351 towards the petitioner Wind Energy Generators and quash the same as it is contrary to the provisions of the Electricity Act 2003 and against the Regulations of the 1st respondent. W.P.No.19214/ 2011:- praying to issue a writ of certiorari Calling for the records of the 3rd respondent proceedings (CMD) 13 dated 16.11.2010 in respect of O & M Charge and quash the same in so far as the petitioner is concerned as it is contrary to the provisions of the Electricity Act 2003 and against the regulations of the 1st respondent. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.19215/ 2011:- praying to issue a writ of certiorari Calling for the records of the 3rd respondent in Proceedings No. (CMD) 216 dated 25.6.2011 and the consequential demand by the 4th respondent in respect of O&M Charge of Rs.32 000/- under Serial No.21 as Other Adjustment in the petitioner CCC Bill dated 2.8.2011 towards the petitioner Wind Energy Generators and quash the same as it is contrary to the provisions of the Electricity Act 2003 and against the Regulations of the 1st respondent. W.P.No.19570/ 2011:- praying to issue a writ of certiorari calling for the records of the 3rd respondent in (per) TANGEDCO proceedings (CMD) No. 13 dt 16.11.2010 and quash the same as illegal arbitrary and contrary to the provisions of the Electricity Act 2003. W.P.No.19571/ 2011:- praying to issue a writ of certiorari mandamus calling for the records of the 3rd respondent in (per) TANGEDCO proceedings (CMD) No. 216 dt 25.6.2011 and the consequential demand made by the 4th respondent in so far as it relates to O & M charge under Serial No. 13 (e) as Comp. charges for WM PFRKVAHR in the petitioners CCC Bill dt 1.8.2011 towards the petitioners Wind Energy Generators and quash the same as illegal arbitrary and contrary to the provisions of the Electricity Act 2003 and against the Regulations of the 1st respondent and direct the 4th respondent to adjust the amount collected towards O & M charges in future consumption bills. W.P.No.19155, 20435, 20827, 20827,20829, 20831, 20703, 20705, 20707/ 2011:- praying to issue a writ of certiorari calling for the records of the 3rd respondent TANGEDCO proceedings (CMD) 13 dt 16.11.2010 in respect of O & M Charge towards the petitioners Wind Energy Generators and quash the same as it is contrary to the provisions of the Electricity Act 2003 and against the Regulations of the 1st respondent. W.P.No.19156/ 2011:- praying to issue a writ of certiorari calling for the records of the 3rd respondent TANGEDCO proceedings (CMD) 216 dt 25.6.2011 and the consequential demand by the 4th respondent in so far as it relates to O & M Charge under serial No.15 as Add/Less Adjustment charge for Rs. 13 333/-in the petitioners CCC Bill dt 29.7.2011 towards the petitioners Wind Energy Generators and quash the same as it is contrary to the provisions of the Electricity Act 2003 and against the Regulations of the 1st respondent. W.P.NO.19157/2011:- 19158/2011 Praying to issue a Writ of Certiorari calling for the records of the 3rd respondent TANGEDCO proceedings (CMD) 13 dated 16.11.2010 https://hcservices.ecourts.gov.in/hcservices/ (W.P.19157/2011)(CMD) 216 dated 25.6.2011(W.P.19158/2011) and quash the same as it is contrary to the provisions of the Electricity Act, 2003 and against the Regulations of the 1st respondent. W.P.20436/2011: Praying to 0issue a Writ of Certiorarified Mandamus Calling for the records of the 3rd respondent in (Per) TANGEDCO Proceedings No.(CMD) 216 dated 25.6.2011 and the consequential demand by the 4th respondent in respect of O&M Charge of Rs.20,000/- under Serial No.15 as "Add/ Less Adjustment Charges" in the petitioner's CCC Bill dated 3.8.2011 towards the petitioner's Wind Energy Generators and quash the same as it is contrary to the provisions of the Electricity Act 2003 and against the Regulations of the 1st respondent and consequently direct the 4th respondents to refund/ give adjustment of the amount already collected from the petitioner. W.P.No.20449/2011:- Praying to issue a Writ of Certiorarified Mandamus Calling for the records of the 2nd respondent comprised in (Per) TANGEDCO Proceedings (CMD)No.216 dated 25.6.2011 and quash the same as being contrary to the provisions of the Electricity Act 2003 and direct the respondents to not make any demands towards O&M Charges under the head of Adjustment Charges or any other head without obtaining approval from the Honourable TNERC. W.P.No.20828/2011, 20830/2011, 20832/2011, 20704/2011, 20706/2011, 20708/2011. Praying to issue a Writ of Certiorari calling for the records of the 3rd respondent in TANGEDCO proceedings (CMD) 216 dated 25.6.2011 towards the petitioners Wind Energy Generators and quash the same as it is contrary to the provisions of the Electricity Act, 2003 and against the Regulations of the 1st respondent W.P.No.21212/2011:- 21048/2011:- Praying to issue a Writ of Certiorari Calling for the records of the 3rd Respondent TANGEDCO Proceedings No. (CMD) 216 dated 25.06.2011 and quash the same as it is contrary to the provisions of the Electricity Act 2003 and against the regulations of the 1st respondent. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.20448/2011: Praying to issue a Writ of Certiorari Calling for the records of the 2nd respondent comprised in (CMD)No.13 dated 16.11.2010 and quash the same as being contrary to the provisions of the Electricity Act, 2003. For petitioners in W.P.Nos.18791 to 18794, 18893, 18894, 19214,19215,19155,19156,19157,19158,20435,20436,20827,20828,20829,2 0830,20831,20832,20703,20704,20705,20706,20707 and 20708 of 2011 : Mr.AR.L.Sundaresan, Senior Counsel, for Mr.R.S.Pandiyaraj. For petitioners in W.P.Nos.18799,18810,20449,18974,18984 and 20448 of 2011 : Mr.Rahul Balaji for Mr.Satish Parasaran For petitioners in W.P.Nos.19570 and 19571 of 2011 : Mr.AR.L.Sundaresan, Senior Counsel, for M/s.A.L.Ganthimathi. For petitioners in W.P.Nos.21048 and 21212 of 2011 : Mr.N.Umapathi. For respondents in all W.Ps.: Mr.A.Navaneetha Krishnan, Advocate General, for M/s.S.K.Rameshwar, P.Gunaraj and G.Vasudevan. COMMON ORDER 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 open access have been set out in Regulation 9 of the Regulations and the charges have been approved for (i) Transmission Charge/Wheeling Charge, (ii) Surcharge, (iii) Additional Surcharge, (iv) Scheduling and System Operation Charges, (v) Reactive Energy Charges, (vi) Grid Availability Charges and (vii) Restoration Charges. The Regulations further provide as follows : 19-A. Billing and Payment : (1) The licensee / SLDC shall raise bills and the Open Access customers shall pay the charges as below : (a) Transmission Charges : (i) The STU / Transmission licensee shall raise the bill for transmission charges on the Open Access customers before the 5th day of the succeeding calendar month. (ii) The open access customer shall pay the charges within seven days from the date of the bill. (b) Wheeling Charges : (i) The Distribution licensee shall raise bill towards wheeling charges on the open access customer within five days from the date of meter reading. (ii) The open access customer shall pay the charges within seven days from the date of bill. (c) Scheduling and system operating charges : (i) The SLDC shall raise bills before the 5th day of the succeeding calendar month. (ii) The open access customer shall pay the charges within seven days from the date of the bill. (d) Surcharge and Additional Surcharge : (i) The Distribution Licensee shall raise bills on the open access customers within five days from the date of meter reading. (ii) The open access customer shall pay the charges within seven days from the date of bill. (e) Grid support charges : (i) The Distribution licensee shall raise bills on the open access customer for the drawal of power from the grid by the consumer as back up supply under the conditions specified in clause (a) of sub-regulation (7) of regulation 9, within five days from the date of meter reading. (ii) The open access customer shall pay the charges within seven days from the date of the bill. (2) Failure to pay the charges will result in discontinuation of open access as contemplated in sub-regulation (8) of Regulation 9. 2.4. It is evident from the above that every aspect of the operations of the transmission and distribution activity has been covered under various heads of charges. The Hon'ble TNERC has also approved the various rates of levy and the same are being levied and collected by the respondent. Therefore, there exists no other activity of TANGEDCO which is not compensated for by the WEG owners for the purposes of wheeling and/or sale of the electricity that is generated. https://hcservices.ecourts.gov.in/hcservices/ 2.5. Any charge that is to be levied by a transmission or a distribution licensee has to be one that is permissible under the Act and the rates in that regard are to be specifically approved by TNERC. The statutory scheme does not permit a unilateral and unapproved levy of any charge. The TNERC has also set out the charges for all other miscellaneous charges and O&M charges of the nature such as the present one are not approved charges. The above charges cover all possible charges and, therefore, the levy of O&M charges is one without authority and an obvious attempt on the part of TANGEDCO to unjustly enrich itself. The said charges are being levied only with the objective of shoring up the precarious financial condition of TANGEDCO through illegal means. 2.6. Rule 4 of The Tamil Nadu Electricity Supply Code,2004, prescribed the charges to be recoverable by the licensee. Accordingly, O&M charge is a tariff related and miscellaneous charge, which cannot be levied without TNERC approval. 2.7. Three types of sub-stations are operated for distribution and transmission viz., (i) owned and operated by TANGEDCO; (ii) Built by the Third Party and given to the TANGEDCO for operation and (iii) Built, operated and maintained by Third Party. Under these circumstances, generalizing a common levy of O&M charges is entirely illegal. 2.8. The respondent has unilaterally sought to make a levy in respect of operation and maintenance charges in relation to the alleged infrastructure created by the respondent TANGEDCO. The said levy has been fixed under the impugned orders dated 16.11.2010 and 25.06.2011 without any basis at Rs.1.60 lakhs per M.W.per year from all the wind energy generators with 5% escalation every year up to the levy period. Therefore, the impugned action of the respondents for levy and collection of O&M charges without approval or sanction from TNERC is completely untenable. 3. Respondents 1 to 4 have filed a counter, stating as follows : 3.1. The Electricity Act,2003, is a comprehensive law, providing for various remedies. While so, the petitioner should have availed all the remedies as available in law before praying this Hon'ble Court to invoke its powers under Act 226 of the Constitution of India. 3.2. Any power project consists of two components viz., (i) Generating Plant and (ii) Power Evacuation Facility. Similarly, the activity of project proponent has two components, namely, (i) establishment of the project and (ii) operation and https://hcservices.ecourts.gov.in/hcservices/ maintenance of the project. There are three ways for carrying out the above work. They are : (i) Establishment, operation and maintenance by project proponent. (ii) Establishment by project proponent and Operation and Maintenance by the Contractor. (iii) Establishment by Contractor and Operation and Maintenance also by Contractor. 3.3. For the works of (ii) and (iii) above, the project proponent has to pay service charges to the contractor. This is the routine procedure all over the world. Further, the establishment of power plant without evacuation facility does not serve any purpose. 3.4. Section 10 (1) of the Act mandates the petitioner/generating company to establish generating station and evacuation facility, such as, tie- line, sub-stations and dedicated transmission line and also maintenance of the same. 3.5. Significant it is to mention here that the petitioner company only establishes its one part i.e., generating plant and maintains the same, but evacuation facility has not been established and maintained by it. Instead, the said