M.KARPAGA VINAYAGAM, J. - (1.) THE Tamil Nadu Electricity Board through its Chairman and other officers has filed this Appeal challenging the impugned order dated 20.4.2011 passed by the Tamil Nadu State Commission.
(2.) THE short facts are as follows: - i) The Appellant is the State Transmission Utility as well as a Transmission Licensee in the State of Tamil Nadu. ii) M/s Ind Barath Thermal Power Ltd, the 1st Respondent, is a generating company which has established a generating station at Swaminatham, Tuticorin District, Tamil Nadu in two stages having two units of 150 MW each under stage I and another one unit of 150 MW under stage II of the project. iii) Presently, the 1st Respondent generating company has another generating station Ind Barath Powergen Limited having three units of 63 MW each. This generating station is connected with 230 kV Meelavittan substation of the Appellant, which in trun is connected to 230 kV Chekkanoorani sub -station through a 230 kV S/C line on D/C towers. iv) To evacuate power from its generating station at Swaminatham, the 1st Respondent Generating Company proposed to lay a 230 kV D/C line to existing 230 kV substation at Meelavittan and stringing of 2nd circuit of 230 kV Meelavittan - Chekkanoorani S/c on D/c line. v) The above proposal of the Respondent Generating Company was not acceptable to the Appellant as it would cause transmission constraints beyond Chekkanoorani and additional system would have to be laid to diapers the power from Chekkanoorani substation. vi) The Appellant carried out load flow studies and proposed three alternatives to evacuate power from the generating station of the Respondent Generating Company. Finally, one of alternatives suggested by the Appellant was agreed upon by both the parties. The acceptable alternative involved the following lines: a) 230 kV D/C line from the generating station to new Arupukkotai substation - 80 kM b) 230 kV D/C line from generating station to Meelavittan substation - 6 kM c) Stringing of 2nd circuit of existing 230 kV Meelavittan - Chekkanoorani line. vii) The Appellant has also proposed to carryout the above works at the cost of the Respondent Generating Company as deposit works. viii) The 1st Respondent Generating Company offered to bear the entire cost stringing of 2nd circuit of 230 kV Meelavatan - Chekkanoorani S/C on D/C line. However, the Appellant permitted the use of the free arm of this line for the purpose of stringing 2nd circuit on the condition that Respondent Generating Company would have share for the capital cost of the towers of the line incurred by the Appellant which forms part of the transmission network of the Appellant. ix) Aggrieved by this decision of the Appellant, the Respondent Generating Company filed a petition before the State Commission seeking for a direction to the Appellant to calculate the transmission charges or the wheeling charges for the system required for evacuation facility for the generator as per the Regulation -9 of Intra State Open Access Regulation, 2005. It is stated in the petition that the Respondent Generating Company proposed to sell power generated from its power plant outside the state of Tamil Nadu by utilising the transmission network of the Appellant and that therefore the Respondent Generating Company required grid connectivity with the transmission system of the Appellant. x) The Appellant opposed this move by filing a counter explaining the various provisions of the Act regarding the non feasibility of different course of action. xi) After hearing both the parties, the State Commission passed the impugned order issuing the following direction to the Appellant: - "Transmission Licensee has to construct the dedicated transmission line and recover the charges from generator as per Clause 9(1)(b) of the Intra State Open Access Regulation, 2005. Alternatively, if the generator consents, the Transmission Licensee may construct dedicated transmission line as a deposit work." xii) This impugned order had been passed on 20.4.2011. Thereupon, the Respondent Generating Company by the letter dated 29.4.2011 informed the Appellant that they would not propose to give consent for construction as a deposit work and called upon the Appellant to construct the dedicated transmission line as directed by the State Commission. xiii) Hence, the Appellant, feeling aggrieved over the direction issued by the State Commission that the Appellant shall construct the dedicated transmission line and recover charges from the generator as per Regulations, 2005, has filed this Appeal.
(3.) ACCORDING to the Appellant, It is the duty of the Generating Company (R -1) to establish, operate and maintain the dedicated transmission lines. The Appellant has further contended that the proposed transmission lines are required for evacuation of power from the generating station of the Respondent as such these lines are 'Dedicated Transmission lines' as defined in the 2003 Act. It is further pointed out that Section 10 of the 2003 Act mandates generating company to establish dedicated transmission line and as such, the State Commission has wrongly relied upon State Commission's Intra State Open Access Regulations, 2005 and issued the impugned directions ignoring the fact that the said regulations are subordinate legislation and, therefore, cannot over ride the substantive provisions of the parent Act i.e. 2003 Act,;