JUDGMENT :- 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 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 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 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. (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. 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. 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 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 work has been entrusted to TANGEDCO and though they pay for establishment of evacuation facility by way of IDC, they refuse to pay the consequential operation and maintenance (O&M) charges for maintenance of the same by TANGEDCO. In view of the same, TANGEDCO is entitled to claim O&M charges for the maintenance carried out by it all along. However, TANGEDCO raises bill for O&M Charges only from 06/2011 without retrospective effect, but the petitioner approached this Hon'ble Court to evade the liability. In view of the same, TANGEDCO is entitled to claim O&M charges for the maintenance carried out by it all along. However, TANGEDCO raises bill for O&M Charges only from 06/2011 without retrospective effect, but the petitioner approached this Hon'ble Court to evade the liability. The petitioner, being an agreement holder, is bound by the terms and conditions of supply and the various provisions of the Act and, as such, estopped from disputing the demand and, hence, the Writ Petition is liable to be dismissed. 4. Learned counsel for the petitioners, in one voice, would contend that the Operation and Maintenance Charges are necessarily the charges arising out of the provision of the Open Access System, and all the charges relating to the open access already having been provided for by the Intra State Open Access Regulations and the Tariff Order, there cannot be any further levy and, therefore, the demand for the said O&M Charges is uncalled for. They would further contend that the O&M Charges fixed by TANGEDCO are without the approval of TNERC and, hence, the same are illegal. In support of their contention, the learned counsel would rely upon a decision of the Supreme Court in BSES Ltd. v. Tata Power Co. Ltd., (2004) 1 SCC 195 , wherein it has been held as under : "9. Both BSES and TPC were not satisfied with the order passed by the Commission and accordingly, preferred separate appeals before the Bombay High Court which have been decided by a common judgment and order dated 3-6-2003 which is the subject-matter of challenge in the present appeals. The High Court allowed both the appeals and set aside the orders passed by the Commission and the proceedings have been remitted back to the Commission for de novo consideration and decision in accordance with law in the light of the observations made in the order. It has been directed that during the pendency of the proceedings before the Commission for the period from 1-7-2003, BSES shall pay to TPC 50 per cent of the standby charges that are payable by TPC to MSEB for the standby facility provided to it. It has been directed that during the pendency of the proceedings before the Commission for the period from 1-7-2003, BSES shall pay to TPC 50 per cent of the standby charges that are payable by TPC to MSEB for the standby facility provided to it. It has also been directed that TPC shall pay to MSEB 50 per cent of the standby charges payable by it to MSEB for standby facility of 550 MVA and shall also promptly make over to MSEB the amount paid to it by BSES pursuant to the order. So far as the arrears of standby charges are concerned, it has been directed that 80 per cent of the said amount shall be paid by BSES to TPC and TPC shall immediately pay that amount to MSEB. The remaining 20 per cent of the amount of arrears shall be paid by TPC to MSEB. The question of interest on the amount of arrears has been left open to be considered by the Commission. 12. In order to appreciate the contention raised by the learned counsel for the parties, it is necessary to briefly examine the provisions of the Act. The rapidly growing demand for energy brought about by economic liberalization has created enormous problems. To overcome these problems and other issues facing the power sector, the Government of India organized two Conferences of Chief Ministers to discuss the whole gamut of issues in the power sector and the outcome of these meetings was the adoption of the Common Minimum National Action Plan for Power. Under this action plan it was considered necessary to create a Regulatory Commission as a step to arrest the deteriorating condition of the State Electricity Boards and to make plans for future development. Administrative Staff College, Hyderabad to whom the Ministry of Power assigned the task of studying the restructuring needs of the system, strongly recommended the creation of independent Electricity Commissions, both at the Centre and in the States to give effect to the aforesaid recommendations. The Electricity Regulatory Commissions Bill was thereafter introduced in Parliament. Administrative Staff College, Hyderabad to whom the Ministry of Power assigned the task of studying the restructuring needs of the system, strongly recommended the creation of independent Electricity Commissions, both at the Centre and in the States to give effect to the aforesaid recommendations. The Electricity Regulatory Commissions Bill was thereafter introduced in Parliament. The Objects and Reasons of the Act show that the main functions of the State Electricity Regulatory Commission shall be: (i) to determine the tariff for electricity - wholesale, bulk, grid and retail; (ii) to determine the tariff payable for use of the transmission facilities; and (iii) to regulate power purchase and procurement process of the transmission utilities etc. The changed scenario may give rise to problems of highly complex and technical nature between the generator, supplier and distributor of energy, which can be better resolved by technically qualified people who may constitute the aforesaid Regulatory Commission. They will have the additional advantage of taking assistance from consultants, experts and professional persons. Therefore, it will be proper to interpret the Act in a broad manner and not in a narrow or restrictive sense insofar as the jurisdiction of the Commission is concerned, so that the purpose for which the Act has been enacted may be achieved. 12.1. Chapter V of the Act deals with powers and functions of the State Commission and sub-section (1) of Section 22 therein reads as under: “22. Functions of State Commission. ‘(1) Subject to the provisions of Chapter III, the State Commission shall discharge the following functions, namely’ (a) to determine the tariff for electricity, wholesale, bulk, grid or retail, as the case may be, in the manner provided in Section 29; (b) to determine the tariff payable for the use of the transmission facilities in the manner provided in Section 29; (c) to regulate power purchase and procurement process of the transmission utilities and distribution utilities including the price at which the power shall be procured from the generating companies, generating stations or from other sources for transmission, sale, distribution and supply in the State; (d) to promote competition, efficiency and economy in the activities of the electricity industry to achieve the objects and purposes of this Act.” Sub-sections (1) and (2) of Section 29 read as under: “29. Determination of tariff by State Commission. Determination of tariff by State Commission. ‘(1) Notwithstanding anything contained in any other law, the tariff for intra-State transmission of electricity and the tariff for supply of electricity, grid, wholesale, bulk or retail, as the case may be, in a State (hereinafter referred to as the ‘tariff’), shall be subject to the provisions of this Act and the tariff shall be determined by the State Commission of that State in accordance with the provisions of this Act. Provided that in State or Union Territories where Joint Electricity Regulatory Commission has been constituted, such Joint Electricity Regulatory Commission shall determine different tariff for each of the participating States or Union Territories. (2) The State Commission shall determine by regulations the terms and conditions for the fixation of tariff, and in doing so, shall be guided by the following, namely” (a) the principles and their applications provided in Sections 46, 57 and 57-A of the Electricity (Supply) Act, 1948 (54 of 1948) and the Sixth Schedule thereto; (b) in the case of the Board or its successor entities, the principles under Section 59 of the Electricity (Supply) Act, 1948 (54 of 1948); (c) that the tariff progressively reflects the cost of supply of electricity at an adequate and improving level of efficiency; (d) the factors which would encourage efficiency, economical use of the resources, good performance, optimum investments, and other matters which the State Commission considers appropriate for the purposes of this Act; (e) the interests of the consumers are safeguarded and at the same time, the consumers pay for the use of electricity in a reasonable manner based on the average cost of supply of energy; (f) the electricity generation, transmission, distribution and supply are conducted on commercial principles; (g) national power plans formulated by the Central Government.” 16. The word ‘tariff’ has not been defined in the Act. ‘Tariff’ is a cartel of commerce and normally it is a book of rates. It will mean a schedule of standard prices or charges provided to the category or categories of customers specified in the tariff. Sub-section (1) of Section 22 clearly lays down that the State Commission shall determine the tariff for electricity (wholesale, bulk, grid or retail) and also for use of transmission facilities. It will mean a schedule of standard prices or charges provided to the category or categories of customers specified in the tariff. Sub-section (1) of Section 22 clearly lays down that the State Commission shall determine the tariff for electricity (wholesale, bulk, grid or retail) and also for use of transmission facilities. It has also the power to regulate power purchase of the distribution utilities including the price at which the power shall be procured from the generating companies for transmission, sale, distribution and supply in the State. ‘Utility’ has been defined in Section 2(1) of the Act and it means any person or entity engaged in the generation, transmission, sale, distribution or supply, as the case may be, of energy. Section 29 lays down that the tariff for the intra-State transmission of electricity and tariff for supply of electricity - wholesale, bulk or retail - in a State shall be subject to the provisions of the Act and the tariff shall be determined by the State Commission. Sub-section (2) of Section 29 shows that the terms and conditions for fixation of tariff shall be determined by Regulations and while doing so, the Commission shall be guided by the factors enumerated in clauses (a) to (g) thereof. The Regulations referred to earlier show that generating companies and utilities have to first approach the Commission for approval of their tariff whether for generation, transmission, distribution or supply and also for terms and conditions of supply. They can charge from their customers only such tariff which has been approved by the Commission. Charging of a tariff which has not been approved by the Commission is an offence which is punishable under Section 45 of the Act. The provisions of the Act and Regulations show that the Commission has the exclusive power to determine the tariff. The tariff approved by the Commission is final and binding and it is not permissible for the licensee, utility or anyone else to charge a different tariff. 17. There is a sound logic for conferment of such a power on the Electricity Regulatory Commission. Hitherto the supply of electricity was being made by only one body, namely, the State Electricity Boards which being instrumentalities of the State and functioning under the control of the State Government were not likely to enhance the tariff in an exorbitant or arbitrary manner. Hitherto the supply of electricity was being made by only one body, namely, the State Electricity Boards which being instrumentalities of the State and functioning under the control of the State Government were not likely to enhance the tariff in an exorbitant or arbitrary manner. In fact, Electricity Boards of many States in the country were running on huge losses. The Electricity Regulatory Commissions Act, 1998 has been enacted to enhance the generation of electricity and improve the efficiency by bringing in private operators. If a licensee (who may be a private operator) after getting the licence for supply of electricity in a particular area increases the tariff arbitrarily, the consumers will have no option but to pay the same. In order to guard against such an eventuality, provision has been made that while granting a licence conditions may be imposed and further, no tariff can be implemented unless the same has been approved by the Commission. 18. Electricity is not a commodity which may be stored or kept in reserve. It has to be continuously generated and it is so continuously generated electricity which is made available to consumers. Any generator of electricity has to have some alternate arrangement to fall back upon in the event of its generating machinery coming to a halt. The standby arrangement for 550 MVA made by TPC was for the purpose that in the event its generation fell short for any reason, it will be able to immediately draw the aforesaid quantity of power from MSEB. Similarly, the arrangement entered into by BSES with TPC ensured the former of immediate availability of 275 MVA power in the event of any breakdown or stoppage of generation in its Dahanu generation facility. Heavy investment is required for generation of power. For this kind of a guarantee and availability of power, TPC had to pay charges for the same to MSEB. This payment was in addition to the charges or price which TPC had to pay to MSEB for the actual drawal of electrical energy. The same is the case with BSES qua TPC. For this kind of a guarantee and availability of power, TPC had to pay charges for the same to MSEB. This payment was in addition to the charges or price which TPC had to pay to MSEB for the actual drawal of electrical energy. The same is the case with BSES qua TPC. The charges paid for this kind of an arrangement whereby a fixed quantity of electrical energy was guaranteed to TPC and BSES at their desire, is bound to constitute a component of the price which they (BSES and TPC) would be charging from their consumers towards the cost of the electrical energy actually consumed by them. The determination or quantification of the amount which is payable for this kind of standby arrangement made in favour of TPC and BSES would in reality mean determination of the price or charges for wholesale or bulk supply of electricity. It will, therefore, clearly fall within the expression ‘determine the tariff for electricity, wholesale, bulk, grid or retail’ as used in clause (a) of sub-section (1) of Section 22 and also in the expression ‘regulate power purchase - including the price at which the power shall be procured from the generating companies - as used in clause (c) of sub-section (1) of Section 22. Therefore, the determination or quantification of the amount which BSES has to pay to TPC falls within the jurisdiction of the State Commission under Section 22 of the Act. This legal position is also reflected by Section 29 of the Act which confers an overriding power and clearly lays down that notwithstanding anything contained in any other law the tariff for supply of electricity - wholesale, bulk or retail - shall be subject to the provisions of the Act and shall be determined by the State Commission. This clearly ousts the jurisdiction of any other authority to determine the tariff. It may be noted here that the Act came into force on 25-4-1998 and the Maharashtra Electricity Regulatory Commission was formed on 5-8-1999. Therefore, it is not possible to accept the contention of Shri Nariman that the State Government had the authority or jurisdiction on 22-3-2000 to determine or quantify the charges which BSES had to pay to TPC under the terms of the licence granted to the former as this was subsequent to the formation of the Maharashtra Electricity Regulatory Commission. 23. Therefore, it is not possible to accept the contention of Shri Nariman that the State Government had the authority or jurisdiction on 22-3-2000 to determine or quantify the charges which BSES had to pay to TPC under the terms of the licence granted to the former as this was subsequent to the formation of the Maharashtra Electricity Regulatory Commission. 23. Several reasons have been given by the High Court for remitting the matter to the Commission for a de novo consideration. The Commission devised a formula for determination of the charges for standby facility which was to be paid by BSES to TPC. Both the sides complained before the High Court that before adopting the formula they were not given an opportunity to place their point of view before the Commission for arriving at a just formula and they were not informed about the exact nature of the formula which was being adopted. The order of the Commission shows that for working out the formula it had appointed consultants. Two members of the Commission had several meetings with the consultants and thereafter the formula was worked out. But the Chairman of the Commission was not present in these meetings. In his dissenting order the Chairman has recorded as under: “60. I have had the opportunity to peruse in detail the draft of an order approved and circulated by my colleagues in the Commission, and I am appending a separate dissenting note, in view of my disagreement with them in regard to their calculations. 63. As is reflected in para 50 of the order of my colleagues, the order itself is based on the report of the consultants and the calculations shown in their report. In this behalf, I understand that my colleagues have had several meetings with the consultants and it is on the basis of the working that has been provided by my colleagues that the report has been compiled. *** 64. In this behalf, I understand that my colleagues have had several meetings with the consultants and it is on the basis of the working that has been provided by my colleagues that the report has been compiled. *** 64. I am afraid that I was not informed of any of the meetings that my colleagues had with the consultants, nor was I advised of any minutes of the said meetings till the draft order was circulated.In the circumstances, since BSES's share was purported to have been communicated by the Commission, it cannot be deemed to be or considered to be a communication made by the Commission, unless the communication was considered by all the members of the Commission. It would tantamount to only two of the members taking upon themselves the liberty to communicate the same.” 24. The facts mentioned above clearly show that the procedure adopted by the Commission was not fair and proper inasmuch as the Chairman did not participate in the meetings which the other two members had with the consultants, whereunder a formula was devised. Under Regulation 21, the quorum for proceedings before the Commission shall be three. In these circumstances, the High Court was perfectly justified in remitting the matter to the Commission for de novo consideration and no exception can be taken to such a course of action. 27. The appeals are accordingly dismissed with costs. The Maharashtra Electricity Regulatory Commission is directed to decide the dispute expeditiously, preferably within three months of presentation of a certified copy of this order before it. While passing the final order, the Commission will also make a direction regarding the liability of the parties keeping in view the deposits made by them as a result of the interim arrangement made by the High Court." 5. Conversely, the learned Advocate General would contend that Infrastructure Development Charges are one time charges for creation of evacuation facility, such as, power transformers and sub-stations, but the so-called O&M Charges are annual recurring expenditure for maintaining the same by TANGEDCO and the said charges do not form part of tariff. He would further contend that by operation and maintenance of power transformers and sub-stations, the Board is incurring huge expenditure, resulting in substantial loss, and, as such, the Board is justified in collecting the O&M Charges from the generating companies/petitioners. 6. He would further contend that by operation and maintenance of power transformers and sub-stations, the Board is incurring huge expenditure, resulting in substantial loss, and, as such, the Board is justified in collecting the O&M Charges from the generating companies/petitioners. 6. I have heard the learned counsel for the parties and also gone through the records. 7. The demand of O&M Charges owes its genesis to two proceedings of TANGEDCO, dated 16.11.2010 and 25.06.2011. The relevant portions of the said proceedings are set out hereunder : "TANGEDCO proceedings (CMD) NO.13 dated 16.11.2010 : "During the meeting held on 08.11.2010 with Indian Wind Turbine Manufacturers Association (IWTMA), it was decided to collect Rs.30 lakhs per MW as IDC from 01.11.2010 and the same shall be continued till 31.10.2011, revision of IDC will be decided after 31.10.2011, for which, the IWTMA has accepted. ITWMA have further accepted for collection of Operation & Maintenance charges of Rs.1.60 lakhs/MW per year with 5% escalation every year from 01.11.2010 for WEG's commissioned under IDC category. After careful consideration, TANGEDCO Ltd. approves the following proposals : 1. The Infrastructure Development Charges is fixed at Rs.30 lakhs/MW and applicable to all the applications registered from 01.11.2010 onwards. 2. The operation & maintenance charges is fixed at Rs.1.60 lakhs/MW per year with 5% escalation every year for life period and applicable to all applications registered from 01.11.2010 onwards. 3. The O&M charges will be collected on monthly basis in the monthly bills raised to the generator whether "sale to board" or "wheeling" category as the case may be. 4. The above said charges are also applicable to all the WEGs commissioned from 01.11.2010 and the WEGs to be connected to the sub-station/power transformer created under IDC Scheme. 5. The WEGs commissioned even before 01.11.2010 on temporary basis only but will be commissioned later also to be paid O&M charges from 01.11.2010 itself. TANGEDCO proceedings (CMD) No.216, dated 25.06.2011 : The TANGEDCO vide the board proceedings No.13, dated 16.11.2010 has fixed O&M Charges of Rs.1.6 lakhs/MW per year with escalation of 5% every year up to the life period for the application registered from 01.11.2010 and the WEGs commissioned on or after 01.11.2010. But the collection of O&M charges for the WEGs commissioned prior to 01.11.2010 has not been decided. But the collection of O&M charges for the WEGs commissioned prior to 01.11.2010 has not been decided. In order to collect the O&M charges uniformly from all the WEGs whether it has been commissioned before or after 01.11.2010 and to avoid any disparity in collection of O&M charges among the WEGs, TANGEDCO decided to collect the O&M Charges of Rs.1.60 lakhs/MW from all the WEGs whether it has been commissioned before or after 01.11.2010 and it has been connected in Board's Power Transformer (or) Developer created power transformer under IDC scheme. After careful consideration, TANGEDCO Ltd. approves the following proposals : a. The O&M charges of 1.6 lakhs/MW per year with 5% escalation every year up to the life period is fixed and has to be collected from 01.06.2011 onwards for all the WEGs those were commissioned before 01.11.2010 which were connected in the Board's sub-station/power transformers. b. The O&M charges of 1.6 lakhs/MW per year with 5% escalation every year up to the life period is also fixed for the WEGs who have already paid the O&M charges of 60% share for 7 years and also to be collected on completion of 7 years period from 01.06.2011 onwards. c. The collection of O&M charges as per TANGEDCO Proceedings (CMD) No.13, dated 16.11.2010 shall continue. d. The next revision of the O&M charges with 5% escalation will be on 01.11.2011 for all the above categories uniformly. e. The above O&M charges are not applicable for the WEGs commissioned in the sub-stations executed under Section 10 (1) of Electricity Act,2003." 8. The whole issue involved in all these Writ Petitions revolves around Section 10 (1) of the Act. Therefore, it is quite relevant to extract the said Section, which reads thus : "10. Duties of generating companies.- (1) Subject to the provisions of this Act, the duties of a generating company shall be to establish, operate and maintain generating stations, tie-lines, sub-stations and dedicated transmission lines connected therewith in accordance with the provisions of this Act or the rules or regulations made thereunder." 9. The word 'duties' in the above Section is quite material. As per the said Section, it is the responsibility of the generating companies to erect sub-station, tie-lines and get the same connected to TNEB. The word 'duties' in the above Section is quite material. As per the said Section, it is the responsibility of the generating companies to erect sub-station, tie-lines and get the same connected to TNEB. The term 'duties' clearly indicates that the generating companies are legally bound to establish, operate and maintain generating stations, tie-lines, sub-stations and dedicated transmission lines connected therewith in accordance with the provisions of this Act or the rules or regulations made thereunder. Similarly, the term 'operate and maintain' is also important. If the generating companies carry out their duty and maintains as per Section 10 (1), the O&M charges are not applicable. The very same point has clearly been mentioned in the impugned proceedings vide CMD.No.216, dated 25.06.2011, stating that "the above O&M charges are not applicable for the WEGs commissioned in the Sub-stations executed under Section 10 (1) of EA,2003." The IDC amount is a one time charge for creation of evacuation facility, such as, power transformers and sub-stations, but the O&M charges are recurring charges for maintaining the same by TANGEDCO. 10. Also, it is seen that during the meeting held on 08.11.2010 with Indian Wind Turbine Manufacturers Association (IWTMA), it was decided to collect Rs.30 lakhs per MW as IDC from 01.11.2010 and the same should be continued till 31.10.2011 and the revision of IDC will be decided after 31.10.2011, for which, the IWTMA has accepted. During the very same meeting, it was further accepted by ITWMA for collection of Operation & Maintenance charges of Rs.1.60 lakhs/MW per year with 5% escalation every year from 01.11.2010 for WEG's commissioned under IDC category. 11. It is pertinent to note that at the time of filing the appeal before the Appellate Tribunal for Electricity (ATE), the generators had requested the TANGEDCO to carry out the sub-station work. The copies of letters of the company annexed in the typed set of papers clearly spell out the same. Only after going through the records submitted by TANGEDCO, the ATE has passed an order, stating that the circular issued in 1993 as well as other circulars issued in the subsequent period and other records would clearly show that only at the request of wind developers, the Board erected sub-stations and transformers to provide benefit to the generators. 12. Only after going through the records submitted by TANGEDCO, the ATE has passed an order, stating that the circular issued in 1993 as well as other circulars issued in the subsequent period and other records would clearly show that only at the request of wind developers, the Board erected sub-stations and transformers to provide benefit to the generators. 12. When it is the bounden duty of the generating companies to establish, operate and maintain generating stations, tie-lines, sub-stations and dedicated transmission lines connected therewith and the said duty is discharged by TANGEDCO as per the request of the generating companies, a right will certainly accrue in favour of the Board to collect the O&M charges from the generating companies. In other words, since the generating companies failed on their part to carry out the duty cast under Section 10 (1) and requested the Board to carry out the said work, the collection of O&M charges from the generators by TANGEDCO, which too from November 2010, considering the overwhelming benefits availed by the WEGs and the expenditure/loss incurred by TANGEDCO in maintaining the sub-stations/lines, in my considered opinion, is perfectly justified. The attempt of the petitioner to avoid liability will only saddle TANGEDCO to accumulate further loss, which shall ultimately be passed on to the end consumers. 13. With regard to the contention of the learned counsel for the petitioner that TNERC Intra State Open Access Regulations,2005, do not approve of O& M Charges and, therefore, the said charges are uncalled for, it is to be stated that it is the duty of the generating companies to comply with Section 10 (1) and, hence, the Operation and Maintenance Charges are not included in the approved charges list of TNERC. Since the generating companies are not able to discharge the duty cast on them under Section 10 (1), the same has been entrusted to the Board, and though at the first instance the generating companies pay one time payment for establishment of sub-stations, tie-lines and dedicated transmission lines connected therewith, which is a one time process, they are bound to pay for operation and maintenance of the same as well, which is a regular and recurring process, and the companies cannot escape their liability in that regard. 14. 14. With regard to the other contention of the learned counsel for the petitioners that the O&M Charges of Rs.1.60lakhs/MW with 5% escalation have been fixed without any basis, it is to be stated that the factors that were taken into consideration by the Board/TANGEDCO for imposition of O&M Charges as per Central Electricity Authority norms are as under : "1. Supervision 2. Required Manpower 3. Spare Parts 4. Consumables 5. Insurance. The Central Electricity Regulatory Commission (CERC), in its debate on Terms and Conditions of Tariff June,2003, has decided that the method of calculation of O&M Charges can be either by (a) as a percentage of capital cost ; and (b) as a bench mark cost per MW/Bay/KM for typical installation. The CERC, in paras 3.5.11, 3.5.12, 3.5.15, has discussed the option (b) method for calculation of O&M charges and its advantages as under : 3.5.11. Option (b) requires benchmarking of O&M expenses in Rupee terms on per unit basis with reference to a base year. For Thermal & Hydro Plants, it would be in terms of Rupees per MW. In case of Transmission system, it would be in terms of Rupees per day for sub-stations and Rupees per circuit kilometre for transmission lines. A similar approach is presently in use for O&M charges in respect of interstate transmission systems. 3.4.12.Option (b) appears to have the following advantages over option (a) : (i) In view of the complexities in the measurement of the capital cost, linking the base level O&M expenses to the capital cost may not be appropriate. (ii) In order to discourage over-capitalization, O&M charges and incentive to the project may not be linked to the capital cost. (iii) In case of old power stations, it may be difficult to work out the O&M charges on the basis of capital of the project. (iv) O&M charges based on capital cost could result in anomalies in hydro projects where there is wide variation in the project capital cost due to abnormal time and cost overrun, geological surprises etc. It is rational to assume that for a similar power station, O&M charges are of the same magnitude irrespective of its exact capital cost. (v) This option could be conveniently followed by the States. 3.5.15. It is rational to assume that for a similar power station, O&M charges are of the same magnitude irrespective of its exact capital cost. (v) This option could be conveniently followed by the States. 3.5.15. In case of transmission system, instead of allowing region wise normative O&M charges based on actuals, adoption of either average normative O&M charges of all the regions or normative O&M charges of the most efficient region may serve as norm on all India basis. The option of using average O&M charges will not induce any efficiency in the transmission utility. So, O&M charges of most efficient region may be a better option to benchmark O&M value." By adopting the above method, the O&M Charges of Rs.1.60 lakhs/MW has been fixed as follows :- Staff salary component of 230 KV SS of 100 MVA capacity: 1. Provincial category as per norms -6 Nos. (Exe.Engineer-1, Asst.Exe.Engineer-4 & Asst.Engineer-1) 2. RWE category as per norms-13 Nos. (Spl.Gr.Foreman-1, Line Inspector/Tech.Asst.-6, Helper/Wireman-6) 3. Salary per month-Rs.5.26 Lakhs/month. 4. Salary additional factor-Rs.1.91 Lakhs (The additional factor includes perks, pension liability, Surrender Leave, GPF, LTA, Car, Telephone and other allowances) 5. Total salary/year (Rs.5.26 Lakhs x 1.91 x 12-Rs.120.559 Lakhs 6. Total salary for 25 years (Rs.120.559 Lakhs x 25)-Rs.3013.975 Lakhs 7. Salary per MW (Rs.3013.975 Lakhs/100MW)-Rs.30.140 Lakhs Repair & Maintenance component of 230 KV SS: 1. Total equipment cost of the sub-station-Rs.1859 Lakhs 2. Repair & Maintenance/year @2% of Rs.1859 Lakhs-Rs.37 lakhs 3. Repair & Maintenance for 25 years (37x25)-Rs.925 Lakhs 4. Repair & Maintenance /MW (Rs.925 Lakhs/100 MW)-Rs.9.25 Lakhs/MW_____________ Rs.39.39 Lakhs/MW Total O&M Charges for 25 years :Rs.40 Lakhs/MW O&M Charges for 1 year:Rs.40/25 = 1.6 Lakhs/MW The 5% escalation is adopted from TNERC Order No.3, dated 15.05.2006 and Order No.1, dated 20.03.2009." 15. While Infrastructure Development Charges are one time charges for establishment or creation of generating stations, tie-lines, sub-stations and dedicated transmission lines, the Operation and Maintenance Charges are recurring for operation and maintenance of the same. For the benefit of the petitioner/generating companies, TANGEDCO cannot incur loss. To put it differently, to arrest the loss being incurred in respect of the petitioners/generating companies, the TANGEDCO has resorted to collect the O&M Charges, as calculated above, which cannot be found fault with. For the benefit of the petitioner/generating companies, TANGEDCO cannot incur loss. To put it differently, to arrest the loss being incurred in respect of the petitioners/generating companies, the TANGEDCO has resorted to collect the O&M Charges, as calculated above, which cannot be found fault with. Since it was the duty of the generating companies to comply with Section 10 (1), the collection of O&M Charges did not fell for consideration of TNERC. Instead, in the instant case, the said duty of the companies is being performed by TANGEDCO, in which case, it is the exclusive domain of TANGEDCO to collect O&M Charges from the generating company. In order to avoid the O&M Charges, the generating companies should be independent in their duties cast under Section 10 (1) and they should not depend on any other agency or entity as against the one in this case, namely, TANGEDCO. Therefore, the levy of O&M Charges, being the annual recurring expenditure, from the petitioners/generating companies is based on equity and in public interest, enabling the authority to serve better, which cannot be interfered with. However, it is made clear, that the revision of charges from 01.11.2011, shall be decided only after consulting all the stakeholders. 16. The only decision relied upon by the learned counsel for the petitioners in the case of BSES Ltd. v. Tata Power Co. Ltd., (2004) 1 SCC 195 , cannot be made applicable to these cases, as the facts and circumstances therein are entirely different from the ones in hand. Further, it was not a case, which involved the challenge to Operation and Maintenance charges, but was one regarding fixation of tariff. 17. On an analysis of the entire factors and considering the totality of facts and circumstances of these cases, coupled with the grievance of the respondents that they are incurring huge loss to their exchequer because of the services rendered by them to the petitioners, this Court has no iota of doubt in coming to an irresistible conclusion that the impugned 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, are in accordance with law. 17. For the reasons cited as above, all these Writ Petitions are dismissed. No costs. Consequently, the connected M.Ps. are closed.