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Judgment
M. Jaichandren, J.
W.P. No. 29936 of 2005:
This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for
the records relating to the impugned order made in letter. No. EE/WFB/Tin/Dm/Doc M/s. Kavitha Dyeings, D/837/05, dated 22.8.2005, passed
by the third respondent and quash the same and consequently forbear respondents 1 to 3 from sanctioning or approving or permitting the proposal
of the fourth respondent to erect Wind Mill in Survey No. 774/1B1 Eastern side and Survey Nos.789/1-A2,A3 & A4 Pazhvoor Village,
Radhapuram, Tirunelveli District.
W.P.NO.7348 of 2006:
This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the
records relating to the impugned order made in letter. No. SE/NCES/EE/WPP/A1/F M/s. P.S.P. Farms (P) Ltd., WF/R.04707/D.806/2005,
dated 14.9.2005, passed by the second respondent and quash the same and consequently forbear the fourth respondent from erecting a wind mill
in Survey Nos.789/1A2 (P) 1A3, 1A4, 1A5(P) & 1A6(P) Pazhvoor Village, Radhapuram Taluk, Tirunelveli District.
W.P. No. 7349 of 2006
This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the
records relating to the impugned order made in letter. No. SE/NCES/EE/WPP/A1/F.M/s. P.S.P. Farms (P) Ltd., WF/R.05344/D.808/2005,
dated 14.9.2005, passed by the second respondent and quash the same and consequently forbear the fourth respondent from erecting a wind mill
in Survey Nos. 774/1B1 Eastern side, Pazhvoor Village, Radhapuram Taluk, Tirunelveli District.
These writ petitions have been filed by one Mr. K. Subramanian, proprietor of M/s. Kavitha Dyeings. All the three writ petitions have been
taken up together for final hearing by the consent of the counsels as they involve common issues.
It is the case of the petitioner that he is the absolute owner and that he is in possession and enjoyment of the vacant land comprised in Survey
No. 774/1B1, Pazhvoor, Radhapuram Taluk, Tirunelveli District. The said land was purchased by the petitioner under the sale deed, dated
21.4.2005, for the purpose of installation of a Wind Mill for generation of electricity. Thereafter, the petitioner had applied for permission and
approval through his application, dated 22.4.2005. The said application was registered in Ref. No. CE/NCES & R & DSM/WEG No.
45(T)/2005-2006, dated 25.4.2005. Apart from the registration fee of Rs. 1,000/- and consultancy charges of Rs. 10,000/-, the petitioner has
also paid a sum of Rs. 5,80,000/-, on 25.7.2005, in P.R. No. 107341, towards infrastructure development charges.
It is also submitted by the petitioner that the fourth respondent herein, who is the adjacent owner of the land abutting Panagudi - Kaniyakumari
National High way in NH-7 Road, has also applied for permission and approval for installation of Wind Mill, on 14.2.2005.
It is the case of the petitioner that no approval can be granted by respondents 1 to 3 herein to the fourth respondent for the installation of Wind
Mill pursuant to the application made by the fourth respondent. Since as per the Rules and Regulations established for regulating the installation of
Wind Mills, the location for the installation of the Wind Mills by the fourth respondent is within the prohibited distance from the center point of the
National High way. According to the petitioner, the proposed Wind Mill should be away by 30 metres from the center point of the National High
Way and should be away by the height of tower plus 1/2M dia. plus 5 metres.
Since the request by the fourth respondent for erection of Wind Mill is within the prohibited distance, the respondents cannot grant approval to
the fourth respondent. The land of the fourth respondent comprised in Survey No. 774/1B1 is on the Eastern side of the petitioner''s land and as
such, the fourth respondent cannot install the Wind Mill in the said land and also for the reason that the fourth respondent''s land is under the
process of land acquisition for expansion of the National High way. As stated by the petitioner, the fourth respondent has also applied for another
Wind Mill to be located in Survey No. 789/1-A2(P),789/1-A3 and 789/1-A4, 789/1-A5(P) and 789/1-A6(P) of Pazhvoor Village,Radhapuram,
Tirunelveli Distict by an application made, on 2.5.2005.
The petitioner states that the fourth respondent has made the said application as an alternative knowing full well that he could not be permitted to
install a Wind Mill in Survey No. 774/1B1. The petitioner states that as per the prescribed Rules and Regulations, the distance between two Wind
Mills shall be 210 M dia.(7-D) that is 7 times diameter of the Wind Mill. However, the distance between the petitioner''s proposed Wind Mill and
the proposed Wind Mill of the fourth respondent is only 163 metres.
It is the further case of the petitioner that the third respondent passed an order in letter. No. EE/WFB/Tin/Dm/Doc M/s. Kavitha Dyeings,
D/837/05, dated 22.8.2005, which is impugned in the present writ petition, which is as follows:
M/s. P.S.P. Farms (Private) Limited, Nammakkal have given application to install 1 No. 250 Kw WEG at Sf. No. 744/1B1 of Pazhvoor Village
and the same was registered vide Regn No. 459/14.2.2005.
Your application adjacent to the above said land is registered on 25.4.2005.
As per priority M/s. P.S.P. Farm (P) Limited application is to be processed. Hence the site of M/s. P.S.P. Farm (Private) Limited was inspected
on 10.5.2005 and found that the eastern boundry of their site is 23 metre from center line of existing National Highways road. The National
Highways Authority of India, Ministry of Shipping and Road Transport and Highways has already given guide lines not to erect wind mills within
30 met from the existing center line of National Highways road. Hence the above company was addressed regarding the inadequate of distance
from the National Highways Road.
But subsequently it was confirmed from National Highway Authority of India that there is no proposal for acquisition of land at SF No. 774/1B1 of
Pazhvoor Village. Hence the proposal of M/s. P.S.P. Farm (P) Ltd., Namakkal was processed.
Further it is informed that no residential buildings, School building is existing nearer to their land and also the boundry distance specified in letter of
Additional Chief Engineer/Wind Energy Development Cell/Tirunelveli has come into effect from 27.7.2005 onwards.
As the site been inspected on 10.5.2005, the validity period has not lapsed.
As the distance between the already proposed WEG of M/s. P.S.P. Farm (P) Ltd., and to your site is inadequate it is not feasible to process your
application at SF. No. 774/1A1 of Pazhvoor Village please.
The petitioner further states that respondents 1 to 3 had rejected his application only to enable the fourth respondent to get permission to erect a
Wind Mill in the land comprised in S.F. No. 789/1-A2,A3 & A4 even though their application was latter in point of time as compared to the
petitioner''s application. The petitioner further states that the second respondent having received the application, ought to have passed an order on
it, instead, he had erred in forwarding the same to the third respondent, who is not the Competent Authority, to pass the orders. The second
respondent ought to have conducted an enquiry before the final order was passed providing an opportunity to the petitioner to explain. Even
though the third respondent held that the proposal of the fourth respondent to erect a Wind Mill in S.NO.774/1B1 is within the prohibited distance,
he had granted permission stating that no acquisition proceedings would be made for expansion of the National Highway. However, the third
respondent having held that the first proposal of the fourth respondent to erect the Wind Mill in S.NO.774/1B1 is within the prohibited distance
from the center of the National Highway NH-7, instead of rejecting the application, granted permission for the erection stating that no acquisition
proceedings were on.
On the contrary, respondents 1 to 3, while denying the averments made by the petitioner, have stated in the counter affidavit that there are no
land acquisition proceedings proposed in S. No. 774/1B1 in Pazhvoor Village for the widening of the National Highway from Panagudi to
Kanyakumari. The National Highway Authority of India vide their letter, No. NHAI/Valliyoor/LA/2005/139, dated 11.8.2005, addressed to the
third respondent has stated that there is no land acquisition proceedings for the widening of the National Highway. The fourth respondent''s
application was registered, on 14.2.2005, prior to the registration of the petitioner''s application, which was submitted only on 25.4.2005,
therefore, the fourth respondent''s application had to be considered first. It is further submitted on behalf of respondents 1 to 3 that the distance
between the land of the fourth respondent and the petitioner is only 73 metres, even though the required distance between two Wind Mill should
be not less than 205.8 metres. It is also stated by the said respondents that the National Highway Authority of India vide letter, dated 9.8.2004,
had stated that no permission should be given for installation of Wind Mills within 30 metres from the existing center line of the National Highway
on either side as well as along the new alignment. The fourth respondent''s land is away from the prescribed minimum distance. Further, the Rule
that the Wind Mill should be away from a distance calculated with the height of the tower plus 1/2 of rotor diameter Plus 5 metres is applicable
only if the Wind Mills are proposed to be erected in the residential areas wherein the residential buildings and other buildings are present. Since
there is no residential building or any other building near the proposed site of the fourth respondent, the application was not rejected on that
ground. With regard to the application of the fourth respondent for permission to erect a Wind Mill in S.F. No. 789/1A2, 1A3, 1A4,1A5 of
Pazhvoor Village, it is submitted that the application was registered vide Registration No. 101(T), dated 12.5.2005. As per the Tamil Nadu
Electricity Board Rules, the applicant should have purchased the land or taken it on lease for the erection of the Wind Mill. Since the fourth
respondent had taken the said land on lease, the said condition had been complied with.
It is further submitted by the said respondents that as per the existing Rules, the distance between the proposed Wind Mills with adjacent Wind
Mills formed in a row should be at least five times the rotor diameter i.e., 147 metres. The distance between subsequent rows should be at least
seven times the rotor diameter. The petitioner''s Wind Mill in location Survey No. 774/1B1, 1A1 of Pazhvoor Village and the fourth respondent''s
Wind Mill in location Survey No. 789/1A2,1A3, 1A4 are located in a row and hence the distance between the above two locations must be five
times of rotor diameter. The rotor diameter of the proposed Wind Mill of the petitioner is 29.5 metre and hence the minimum distance required is 5
x 29.5 metres = 147 metres. But the distance available between the above locations is 163 metres which is more than the required norms.
According to the said respondents, the proposed location of the petitioner''s land is situated in front of S.F. No. 774/1B1 of Pazhvoor Village
in the Western direction. As per Rules, the petitioner proposed WEG must be located in the front row of the fourth respondent''s location in
S.F.NO.774/1B1 for which the minimum distance requirement is 205.8 metres. As the distance between the Mills was only 73 metres, the
petitioner''s application was not processed and the above fact was intimated by the third respondent vide his letter. No.
EE/WFP/Tin/Dm/Doc./Ms. Kavitha Dyeings/D.1837/2005, dated 22.8.2005, to the petitioner herein. Further, a detailed letter, dated 22.8.2005,
had been sent to the petitioner mentioning the reason for the grant of permission for the erection of the Wind Mill in the fourth respondent''s land.
It is further submitted that the Competent Authority responsible for recommending for approval of the installation of Wind Mill is the Executive
Engineer, Tamil Nadu Electricity Board, Wind Mill Project. But the Authority to receive the application is the second respondent herein and the
second respondent in turn is to forwarded the application to the Executive Engineer, Wind Farm Project with instruction to inspect the land/site
along with the Assistant Engineer and Assistant Executive Engineer. The Executive Engineer had inspected the site and after a thorough verification
recommended the proposal. The Tamil Nadu Electricity Board, will issue the No Objection Certificate. The Competent Authority for inspection of
site is the third respondent.
It is further submitted that as per B.P.(Ch) No. 469, dated 31.10.2005, revised guidelines had been issued as amendment to the B.P.(Ch) No.
324, dated 27.7.2005, by which National Highway Roads and Railway Tracks have also been included for taking consideration of the relevant
distance for erection of the Wind Mill, which clearly shows that the National Highway Roads and Railway Tracks have been added to the earlier
Board proceedings, B.P.Ch. No. 324, dated 27.7.2005, with effect from 31.10.2005. Whereas, the fourth respondent''s application had been
processed earlier to the Board proceedings Per.B.P.Ch. No. 469, dated 31.10.2005, at which point of time the National Highway Roads and
Railway Tracks were not in contemplation for the proposed minimum distance. It is also submitted by the said respondents that the allegation of the
petitioner that the permission has been granted to the fourth respondent''s to erect the Wind Mill at a place, which is within 23 metres from the
National Highway, is totally wrong. It is a fact that the distance between the center of the Road and the nearest point of land where the proposed
Wind Mill is to be erected by the fourth respondent is nearly 49 metres and the actual location of the Wind Mill is beyond that distance and it is as
prescribed by the Rules and Regulations as applicable for the grant of permission. Therefore, there is nothing wrong in the permission granted by
respondents 1 to 3 for the erection of the Wind Mill as proposed by the fourth respondent. In such circumstances, the writ petitions filed by the
petitioner are devoid of merits and are liable to be dismissed.
On hearing the learned Counsel appearing for the petitioner as well as the respondents and on a perusal of the documents filed before this
Court, it is clear that the application made by the fourth respondent, on 14.2.2005, is earlier in point of time to that of the petitioner which was
dated 25.4.2005. Further, the claims made by the petitioner cannot be sustained since the proposal by the fourth respondent for erection of the
Wind Mill is well within the norms prescribed by the Rules and Regulations applicable to the issue. The permission granted to the fourth respondent
vide impugned letter, dated 22.8.2005, is in accordance with such Rules and Regulations and the petitioner has not made out a case to declare the
said proceedings as illegal and arbitrary. In such view of the matter, the writ petitions are dismissed as devoid of merits. No costs. Consequently
connected W.P.M.P. Nos. 32798,32799 and 32800 of 2005 are closed.