AI Structured Summary
Not yet generated for this judgment
Judgment
K. Venkataraman, J.—The Petitioner has come up with the present Writ Petition for a Writ of Mandamus forbearing the Fifth Respondent
from taking any steps like installing, operating, commissioning their Wind Mills within the Gangaikondan Panchayat Jurisdiction, Tirunelveli District,
without getting permission from Gangaikondan Panchayat in terms of the provisions of the Tamil Nadu Panchayats Act, 1994 [for brevity, ""the
Act""] and the Rules framed thereunder. The facts of the case, as stated in the Affidavit filed in support of the Writ Petition, in a nutshell, are set out
hereunder:
(a) The Gangaikondan Panchayat area has been found as wind prone area by the Non-Conventional Energy Sources Department. Therefore, the
Wind Mill Developers are purchasing or getting lease of lands for the purpose of erecting wind mills during the last few years and the Fifth
Respondent is one of such developers making all arrangements to erect 7 Wind Mills within the jurisdiction of the said Panchayat.
(b) The Fourth Respondent sent a communication dated 22.12.2011 to all the Presidents of Panchayats within the Manur Panchayat Union,
wherein he endorsed the judgment of this Court made in W.P. (MD) No. 9930 of 2011 dated 17.11.2011 directing them to take necessary
further action in respect of wind mills erected in the respective panchayats. The Fourth Respondent has also sent another communication dated
19.3.2012 referring the instruction of the third Respondent -- District Collector dated 22.2.2007 regarding the mode of assessment of tax relating
to wind mills.
(c) The Wind Mill which generates and transmits electricity is a factory involved in manufacturing process and a wind mill is a building as defined in
Section 2(1-A) of the Act.
(d) The Fifth Respondent sent an Application dated 31.12.2011 seeking approval for setting up wind turbine generator in various survey numbers
without required documents. Though the Petitioner sent several letters enlisting the documents required for processing the Application, the Fifth
Respondent has not complied with the requirements. Hence, the Petitioner has returned the Application along with a detailed letter dated
24.3.2012. Till date, the Fifth Respondent has not re-submitted the Application complying with the requirements.
(e) Without getting prior approval of building plan as per the Tamil Nadu Panchayats Building Rules, 1997 and without obtaining sanction u/s 159
of the Act, the Fifth Respondent is erecting totally 7 wind mills within the Gangaikondan Panchayat area. Respondents 1 and 2 ought not to have
granted any permission for commissioning the wind mills erected by the Fifth Respondent without the building plan approval and the licence for
running wind mill under the Act and Rules framed thereunder.
(f) Now, the Fifth Respondent has completed the erection of 4 wind mills out of 7 wind mills and making all arrangements to complete the work. In
fact, two wind mills erected by the Fifth Respondent are functioning and generating energy. The act of the Fifth Respondent in erecting and
generating electricity without plan approval and licence under the Act from the Gangaikondam Panchayat is illegal.
Therefore, the Petitioner has come up with the present Writ Petition for the relief stated earlier.
The case of the Fifth Respondent, as set out in the Affidavit filed in support of the Application in M.P. No. 3 of 2012 for vacating the interim
order, in a nutshell, is set out hereunder:
(a) The Fifth Respondent is a registered Company under the statute and is involved in the business of developing wind mill projects on turnkey
basis providing end to end solutions. The Fifth Respondent Company has entered into a turnkey contract with M/s. Gamesa Wind Turbines Private
Limited for development of 10 Mega Watt Wind farms in and around Gangaikondan Village. For the said purpose, they have identified the lands in
Survey Nos. 465, 359, 455, 459, 529, 444, 424, 475, 561 & 568, 353 & 447 of Gangaikondan Village. According to the terms of contract, the
Fifth Respondent has to erect 11 Wind Turbine Generators in the above 11 survey fields and it has already commenced work as early as August,
2011 based on the approval/permission from the Tamil Nadu Electricity Board.
(b) Under the Tamil Nadu Electricity Board Proceedings No. 324 and other prevailing guidelines, the Fifth Respondent has applied to the Tamil
Nadu Electricity Board, now renamed as TANGEDCO, for installation and erection of Wind Turbine Generators in the aforesaid lands. After a
series of inspections and enquiries and after due consideration, TANGEDCO has cleared their project and had granted necessary consent orders
for installation and erection of Wind Turbine Generators in the above said lands.
(c) While so, following the order of this Court dated 17.11.2011 made in W.P. (MD) No. 9930 of 2011, a communication was sent to local
authorities directing them to insist wind mill installation companies to apply for and get approval under the relevant local laws including Act and
Rules framed thereunder. A perusal of the Tamil Nadu Panchayats Building Rules, 1997, would show that it applies only to the layouting of house
sites, construction of buildings and allied activities thereon.
(d) On coming to know of the communication, the Fifth Respondent, without prejudice to their legal rights, submitted representation/Application to
the Petitioner panchayat on 31.12.2011. Any Application for building approval under the Tamil Nadu Panchayat Building Rules of 1997, the
President as Executive Authority is entitled to ask only for documents prescribed under the Rules. However, the Petitioner is rejecting their
Application under one pretext or the other.
(e) Before the judgment of this Court dated 17.11.2011 and subsequent communication dated 22.12.2011, it is reasonably believed that no
Panchayat was insisting the wind mills to apply or obtain clearance or permission under the Act and Rules framed thereunder.
(f) Even after submitting all the required documents on 14.3.2012 to the Petitioner, the Petitioner-Panchayat is intentionally returning the
Application for the reasons best known to him.
(g) The allegation that the Fifth Respondent has erected the wind mills without valid approval is false and incorrect since there was change in
circumstances after passing of the order in W.P. (MD) No. 9930 of 2011 dated 17.11.2011. Even the Government Policy is that wind mill is not a
factory, and therefore, no wind mills were insisted to get approval or clearance. However, the Fifth Respondent is ready to pay the prescribed fees
and necessary charges to the Petitioner-Panchayat.
Thus, the Fifth Respondent seeks for the dismissal of the Writ Petition.
On the above pleadings, I have heard the learned Senior Counsel appearing for the Petitioner, learned Special Government Pleader appearing
for Respondents 1 to 4 and the learned Senior Counsel appearing for the Fifth Respondent.
The first and foremost submission that was made by the learned Senior Counsel appearing for the Fifth Respondent is that since the Petitioner
has sought for a Writ of Mandamus against the Fifth Respondent, who is a private party, the Writ Petition is not maintainable.
Before adverting to the said contentions, it would be useful to extract the prayer that has been sought for by the Petitioner and the same is
extracted hereunder:
to issue a Writ of Mandamus forbearing the 5th Respondent from taking any steps like installing, operating, commissioning their wind mills within
the Gangaikondan Panchayat Jurisdiction, Tirunelveli District without getting permission of Gangaikondan Panchayat in terms of the provisions of
the Tamil Nadu Panchayats Act, 1994 and the Rules framed thereunder.
Though the Petitioner has impleaded the official Respondents, the relief that has been sought for is only against the Fifth Respondent.
However, the learned Counsel appearing for the Petitioner relied on the decision in S. Muppidathi Vs. Chief Engineer, Non Conventional
Energy Sources (NCES), Tamil Nadu Electricity Board, Chennai-600002 and Others, and contended that writ will lie even against a Private party.
That is the case where the Writ Petition has been filed for a Writ of Mandamus forbearing the official Respondents as well as the private party from
installing High Tension Wire Poles and Windmills within 30 meters of the Petitioner''s (thereon) agricultural land. While holding that the Writ
Petition is maintainable, the learned Judge, in Paragraph Nos. 6 & 7 has held as follows:
I do not agree with the first contention. The seventh Respondent may be a Company incorporated under the Companies Act, 1956. But, the
seventh Respondent is erecting a windmill, for the purpose of generating and supplying electrical energy to the Tamil Nadu Electricity Board, which
is an instrumentality of State. In any case, when the element of public interest is involved, a writ would certainly lie. Therefore, the first preliminary
objection is liable to be overruled.
It is true that the prayer in the main Writ Petition is so worded that a mandamus is sought only against the Respondents 1 to 6, though it is the
seventh Respondent, who is installing the windmill. It may be true that the windmill has also been installed. But, so far it has not commenced
operations. Therefore, the Court is always entitled to mould the relief and overlook the mistake in the manner in which the reliefs are worded.
Hence, the second preliminary objection is also overruled.
The said decision, in my considered view, does not apply to the present case on hand for the following reasons viz.--
(i) In the decision referred to above, the Petitioner thereon filed a Writ Petition not only against the private party but also against the official
Respondents claiming relief against all the Respondents. In the present case on hand, though the official Respondents are party Respondents, no
relief is claimed against them, as the relief sought for is only against the Fifth Respondent, which is a Private party.
(ii) That is the case where the Petitioner thereon alleging infringement of his personal interest, has approached this Court by filing the above Writ
Petition. That is not the case on hand.
(iii) The learned Judge overlooked the fact that the Petitioner, who is the President of the Panchayat, could very well approach the Civil Court
seeking the relief, which has been sought for in the said Writ Petition.
(iv) The Hon''ble Apex Court in the judgment Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, , while dealing with the present issue,
in paragraph 64, has held as follows:
It is well settled that a Writ Petition is a remedy in public law which may be filed by any person but the main Respondent should be either
Government, Government agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated
with State or instrumentalities of the State. All the Respondents in a Writ Petition cannot be Private parties. But Private parties acting in collusion
with State can be Respondents in a Writ Petition. Under the phraseology of Article 226, High Court can issue Writ to any person, but the person
against whom Writ will be issued must have some statutory or public duty to perform.
In view of the abovesaid reasonings, I am of the considered view that the Writ Petition filed by the Petitioner being the President of the
Gangaikondan Panchayat is not maintainable before this Court.
The second contention of the learned Senior Counsel appearing for the Fifth Respondent is that the erection of Wind Mill cannot be construed
as construction of factory and installation of machinery, and hence, the requirement made u/s 160 of the Act, seeking permission from the
Panchayat Union Council is not necessary.
On the other hand, it is contended by the learned Senior Counsel appearing for the Petitioner that the erection of Wind Mill has to be
construed as construction of factory and installation of machinery and it has been so held by this Court in the decision in S. Muppidathi Vs. Chief
Engineer, Non Conventional Energy Sources (NCES), Tamil Nadu Electricity Board, Chennai-600002 and Others, . He has relied on the
provisions under the Factories Act and Section 2(1-A) of the Act.
As rightly contended by the learned Senior Counsel for the Petitioner that the erection of Wind Mill has to be construed as installation of
machinery as contemplated u/s 160 of the Act. The matter in issue has been dealt with extensively in the decision in S. Muppidathi Vs. Chief
Engineer, Non Conventional Energy Sources (NCES), Tamil Nadu Electricity Board, Chennai-600002 and Others, of the said Judgment made
thereunder are usefully extracted hereunder:
Therefore, it may not be possible to contend that a windmill which generates and transmits electricity is not involved in a manufacturing
process. Nor can it be contended that a windmill cannot be treated as a machinery. The fact that the Secretary to Government, Energy
Department, sent a communication dated 6.9.2010 claiming that windmill is not a factory, cannot be taken to be an authoritative pronouncement of
the law on the point. The fact that hundreds of windmills have been established without any such permission from any of the local bodies, is also no
ground to interpret the provisions of law differently. Therefore, the applicability of Section 160 of the Tamil Nadu Panchayats Act, 1994 to a Wind
Mill, which generates electricity and which is therefore a factory involved in a manufacturing process, cannot be doubted.
Even if it is assumed for the sake of argument that the windmill cannot be treated as a factory or workshop, it will not escape at least the
definition of the word ""building"", in terms of Section 2(1-A) of the Tamil Nadu Panchayats Act. It defines a building as something which includes a
house, outhouse, tent, stable, latrine, shed, hut, wall (other than a boundary wall not exceeding 2.5 meters in height) and any other structure,
whether of masonry, bricks, wood, mud, metal or any other material whatsoever. Therefore, the seventh Respondent ought to have obtained
permission at least under the Tamil Nadu Panchayats Building Rules, 1997.
In view of the same, the contention of the learned Senior Counsel for the Fifth Respondent, in this regard, is liable to be rejected and
accordingly rejected.
The third contention of the learned Senior Counsel for the Fifth Respondent is that no Rule has been framed by the Government to regulate
Sections 159 & 161 of the Act. Before adverting to the said contention, it would be useful to refer to Sections 159 & 161 of the Act, which read
as follows:
Purposes for which places may not be used without a licence--(1) The Government may, by Notification, specify the purposes which in their
opinion, are likely to be offensive or dangerous to human life or health or property.
(2) The Village Panchayat may, with the previous approval of the prescribed authority, notify that no place within the limits of the Panchayat Village
shall be used for any of the purposes specified in the Notification issued under subsection (1) without a license and except in accordance with the
conditions specified in such licence.
(3) No Notification issued under sub-section (1) or sub-section (2) shall take effect until sixty days from the date of publication.
(4) The Village Panchayat shall be the authority competent to grant the licence or to refuse to grant it.
Power of Government to make Rules in respect of the grant and renewal of licences and permissions-- (1) The Government may make
Rules--
(a) prohibiting or regulating the grant or renewal of licenses u/s 159 and the period for which such licences shall be valid;
(b) as to the time within which Applications for such licences or renewals thereof shall be made; and
(c) prohibiting or regulating the grant of permission u/s 160.
Pointing out those provisions, the learned Senior Counsel for the Fifth Respondent contended that as envisaged in Section 159 of the Act, the
Government has not issued any Notification and no Rules have been framed. This has not been controverted by the learned Special Government
Pleader appearing for the official Respondents. Hence, I am of the considered view that till the Rules are framed as required u/s 159 of the Act, the
Petitioner cannot insist that the Fifth Respondent has to get license from him for erection of Wind Mill. In fact, the Petitioner has not insisted the
Fifth Respondent to get license from him. However, in view of the communication sent by the Fourth Respondent to all the Presidents of the
Panchayats within Manur Panchayat Union to take necessary action in respect of Wind Mills erected in the respective panchayats without
obtaining license, the Petitioner is harbouring that the Fifth Respondent has to get license from him. Even assuming that such communication has
been sent by the Fourth Respondent, it has no sanctity of law.
The fourth contention of the learned Senior Counsel appearing for the Fifth Respondent is that under the Act, even assuming that permission
has to be granted by the Panchayat, it shall be only by the Panchayat Union Council and not by the President of the Panchayat concerned. In this
connection, it would be useful to extract Section 160 of the Act and the same is extracted hereunder:
Permission for construction of factories and the installation of machinery.--No person shall, without the permission of the Panchayat Union
Council in panchayat villages and except in accordance with the conditions specified in such permission, construct or establish any factory,
workshop or workplace in which it is proposed to employ steam power, water power or other mechanical power or electrical power, or install in
any premises any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plant exempted by the
rules.
The said provision amply makes it very clear that only the Panchayat Union Council is the Competent Authority to grant permission for
construction of factories in terms of Section 160 of the said Act.
A Division Bench of this Court in the decision P. Ganesan v. The District Collector, 2011 (1) CWC 521 (DB), Tirunelveli District has also
taken such view. Paragraph 11 of the said decision is usefully extracted hereunder:
A reading of the said Section would show that the Competent Authority for giving permission for construction of factory in the villages, is the
Panchayat Union Council.
However, the said fact has not been brought before the learned Judge in S. Muppidathi Vs. Chief Engineer, Non Conventional Energy Sources
(NCES), Tamil Nadu Electricity Board, Chennai-600002 and Others, Had it been brought to the notice of the learned Judge, perhaps, the learned
Judge would have taken a different view. In the backdrop of the discussion made above, I am of the considered view that the relief sought for by
the Petitioner cannot be granted, and hence, the Writ Petition stands dismissed. No costs. Consequently, connected Miscellaneous Petitions are
closed.