(Prayer : Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus to direct the respondents herein to forthwith shift the Wind Mill Unit of the 6th respondent being erected and commissioned in S.No.96, situated at Ayyanarkulam Village, Alangulam, Tenkasi, Tirunelveli.)
1. This Writ Petition has been filed seeking issuance of a Mandamus to direct the respondents herein to forthwith shift the Wind Mill Unit of the sixth respondent being erected and commissioned in S.No.96, situated at Ayyanarkulam Village, Alangulam, Tenkasi, Tirunelveli.
2. According to the petitioner, he owns the land measuring to an extent 0.49.0 Hectares comprised in Survey No.98/2B situated at Ayyanarkulam Village, Alangulam Taluk, Thenkasi, Tirunelveli District. The petitioner has got dwelling house where he lives along with his family. There is also a well and a deep borewell and a pumpset motor with electricity service connection. Adjoining his dwelling house, there is also a land measuring to an extent of 88 cents on the east of Southern Half of S.No.97 which was purchased by his late father in the name of his elder brother Sankar. There is also even a deep bore well. The sixth respondent had purchased a land in Survey No.96 adjoining to the petitioner's property and they have been erecting Windmill unit adjacent to the dwelling house. The petitioner has been continuously objecting the same but that has not been heeded to, the petitioner and his family members have filed a civil suit in O.S.No.210 of 2015 on the file of the Principal District Munsif Court, Tenkasi, against the sixth respondent from installing or erecting the Windmill adjacent to their residential house. They have also filed an application in I.A.No.695 of 2015 for injunction and also filed an application for appointment of Advocate Commissioner to inspect the distance of Windmill unit and the suit property. According to the petitioner, an Advocate Commissioner was also appointed who had inspected the property and filed a report stating that the suit property is situated in a short distance of 190 feet away from the house. After hearing both sides, the lower Court dismissed the injunction application on 08.09.2015. The petitioner further stated that being an agriculturist, he does not have knowledge about the adverse effect and harm caused to their health because of erection of the windmill and now they have come to know about the study made by a foreigner viz., Dr.Jerry Punch, an audiologist and Professor Emeritus at Michigan State University to the effect that it is hazardous to erect a windmill within a short distance from the house. According to study made in the foreign countries, the minimum distance between the residential area and the windmill is to be at least 2 kilometers. Therefore, the petitioner would mainly contend that the very erection of the windmill is without any proper approval as it is hazardous to the health and the right to life is affected and now that the erection has been completed and the sixth respondent may commission the very windmill. Hence, the petitioner has come forward with this writ petition as it is not permissible in accordance with law as it is situated nearby the residential house of the petitioner and the respondents have also failed to exercise the power of not stopping the hazardous things to the public at large.
3. The second respondent Pollution Control Board has filed a counter stating that the Pollution Control Board does not have any control over the erection or commissioning of the windmill as the windmill does not emit any emission from its operation. The windmill is also not covered under the Environmental Impact Assessment Notification 2006. Further, the windmill does not generate any waste water from its operations and no sewage is also generated as the windmill does not require continuous manpower to operate the same. Moreover, there is no siting criteria prescribed by Tamil Nadu Pollution Control Board with respect to the minimum distance between the wind mill and dwelling house. Therefore, the second respondent is unnecessary party to the Writ Petition.
4. The fifth respondent Tamil Nadu Generation and Distribution Corporation also has filed a counter stating that the Writ Petition is not maintainable in view of the fact that already for the very same relief, the petitioner and his family members have filed O.S.No.210 of 2015 and also filed interlocutory application for injunction and the said application has been dismissed and therefore, the writ petition for the same cause of auction does not arise. Secondly, they would contend that the Neyveli Lignite Corporation Limited by its letter dated 17.03.2015 requested the Chief Engineer, NECS to issue No Objection Certificate for installing a windmill and the TANGEDCO gave approval on 02.09.2015 to execute wind generation at Tirunelveli District and the same has been informed on 07.09.2015. The Executive Engineer / Wind Farm Project, Tirunelveli has visited the site and submitted a report on 19.11.2015 stating that the boundary distance in all directions are adequate as per the board norms. The specifications are as follow:
(a) (1/2D + 5m), if there is no building school, residential place etc., nearby Dia of the Rotor.
(40 + 5 = 45 MTS), In the field the boundary distance is 46.5 mtr. It is adequate.
(b) Height of the tower ( D + 5M) if the location is near to building school, residential place, Railway Tracks, N.H. Roads.
(The distance of the house from the centre point of the WEG is 130 mtr out of 125 mtr is in adequate)
The Dia of above 1x1500 KW LSML make WEG is 80 Meters and Height of the Hub is 80 Meters.
5. The sixth respondent has filed a vacate stay petition regarding the grant of interim order mainly contending that first of all, the writ petition itself is not maintainable as already a civil suit has been filed and the interlocutory application filed has been dismissed observing that the windmill has been erected 190 feet away from the boundary of the petitioner's land and it is not in violation of law and in no way affects the rights and enjoyment of the property of the petitioner. The petitioner has not even preferred any appeal as against the civil court order. Therefore, the writ petition is not maintainable. Further, they would contend that the petitioner is not residing in the house situated in the agricultural land since it is stated in the affidavit that the petitioner is residing at No.3.243, Rice Mill Street, Ayyanarkulam Village, Alangulam Taluk, Tirunelveli District. Therefore, also the writ petition is not maintainable. Even otherwise, they would contend that the Government of India, Ministry of New and Renewable Energy, New Delhi, even way back in the year 2012 has requested the Government of Tamil Nadu to exempt the wind energy Generator from the list of industries engaged in hazardous operations. Even the Central Pollution Control Board, New Delhi, in their Office Memorandum dated 02.06.2014 has listed the Wind and Solar renewable power projects of all capacities, mini hydel power plants of less than 25 MW capacity under Green Category. Therefore, it is not hazardous to health even as per the Pollution Control Board norms. They would further state that only a thatched house is put up in the agricultural land and the running sound of the windmill does not affect the petitioner and the petitioner has filed the writ petition with a motive to extract money from the sixth respondent by illegal means. The article published by the Researcher is the basis for the writ petition is not maintainable as it is not suited to the Indian context. Even as per the article, the study has been conducted in respect of Denmark, Netherlands, Germany and Sweden and there is no report about India. Even otherwise, these are all the disputed question of facts which cannot be decided in the Writ Petition when especially a civil suit is pending and having lost the interlocutory application, the petitioner has come forward with this present Writ Petition. The sixth respondent has also got necessary approval for putting up the windmill and the petitioner has not proved as to how he has been affected. Even the shed of the petitioner is at the southern end of S.No.98/2B, then on the north is S.No.97, the windmill has been erected and the windmill is 190 feet away from northern boundary of the petitioner's land as per the Advocate Commissioner's report but in total, the windmill is erected beyond 400 feet away from the shed of the petitioner. The allegation of noise nuisance is also not correct because even as per the affidavit of the petitioner, it is not a residential area but it is purely an agricultural land. As per the provisions, the noise level in the residential area shall be 60 Decibel in day time and 50 Decibel in night time. Whereas even as per the article relied upon by the petitioner what has been stated is that 40 Decibel and 50 Decibel respectively which is much less than the minimum requirement. Under those circumstances, the sixth respondent would contend that they have already put up the construction and the energization is pending. Therefore, they sought for vacating the interim order.
6. The petitioner has filed a reply affidavit by contending that the article is only to create awareness about the ill-effects of the windmill and the averments regarding the exemption of Wind Energy Generator from the list of industries engaged in hazardous operations is pending consideration only. For the allegation that the windmill comes under the green category, no document has been produced. According to the petitioner, the safety distance norms for erection of windmill is minimum of 2 kilometers (1.1/2 miles) away from the residential area which will not satisfy the 190 feet as stated by the Advocate Commissioner. The issue involved in the writ petition is safety distance norm of 2 kms away from residence is not maintained as per the scientific report and therefore, it has got to be shifted. Therefore, the petitioner contended that the contention of the sixth respondent is wrong.
7. Heard all the parties.
8. The short point for consideration in this Writ Petition is that the erection of the windmill and the further energisation of the same. The main ground of attack by the petitioner is that the distance between the house which is situated in the farm or the land even as per the Commission report is only 190 feet and therefore, it is a hazardous one and they will be put to serious consequences. Secondly, the sound which has been created by the running of the windmill is a noise pollution which will affect their health. Thirdly, the authorities have not taken any action as against the sixth respondent for not complying with the minimum requirement of distance. Therefore, the turbines which has already been erected should be removed. In this connection, it is pertinent to point out that the petitioner has already filed a civil suit for the identical relief and also sought for an injunction not to erect the windmill but the said application has been dismissed as early as on 08.09.2015. Thereafter, the petitioner has not chosen to prefer any appeal but he has chosen to file the present Writ Petition almost for the same cause of action with a changed relief immediately after the dismissal of the interlocutory application in October, 2015 only on the basis that a foreign scientist has given an article which states that it is wrong to have a windmill.
9. First of all, when a civil suit is pending, naturally, the parties will be governed only by the civil suit and the petitioner could not have filed the writ petition as the point raised in the suit and the point raised in the writ petition are one and the same. Further, it would be wrong on the part of the petitioner to raise the same point in the later writ petition also as this writ petition filed after the dismissal of the injunction application which has not been appealed also. In this case, especially when the petitioner having lost the interlocutory application, without even preferring any appeal against the dismissal of the interlocutory application, he has filed the present Writ Petition. If at all he wants to further establish, he has to prove whether there is any hazardous thing or any ill-effect or ill-health is done because of running of the windmill. These are all the disputed question of facts which cannot be decided in the Writ Petition. Further, the Commissioner report which has been produced in the typed set of papers relating to the suit would clearly indicate two things viz., the main point is that it is an agricultural land and the petitioner has got two properties as per the commissioner's report immediately adjoining the property of the sixth respondent there are two lands to an extent of 25 cents and 30 cents side by side owned by the petitioner. Thereafter, the house property is situated and it is only a shed even as per the commissioner's report. The distance between the windmill and the first portion viz., the agricultural land is alone 190 feet thereafter 25 cent is there which comprised of another 120 feet and thereafter only the house or the shed and the well are situated. Further, it is clearly proved that as per the commissioner's report, the main asbestos sheet is only used for the purpose of cattle shed. The house situated in the land shown as per the plan is further down 190 feet and 120 feet and thereafter, the distance is not mentioned is deep inside. These are all the facts to be decided only by the Civil Court at the time of giving evidence. Further, it was also argued and stated in the counter of the sixth respondent that the petitioner is not residing in that area even as per the address given in the affidavit, he is residing in the town. Therefore, even as per the counter of the Electricity Board, the norms of the safety distance is Dia + 5 meter no building, school and residential place. So what is required is 40 + 5 meters in the field the boundary distance is 46.5 meter it is adequate. It is worthwhile to mention here that it is not a residential area and there is no schools. It is also 46.5 meters away. Again as I have stated this Court does not want to give any opinion because the matter is going to be decided only by the Civil Court. Therefore, suffice to state prima facie the sixth respondent has categorically established that in a non-residential zone, especially in the agricultural place, the erection has been done much farther away from the farm house and it is not an residential place. Under those circumstances, the petitioner cannot have any grievance merely because the study report given by a foreigner states that it is hazardous to have a windmill and the distance will affect him. Hence, the writ petition itself is not maintainable as it leads to many disputed questions of fact and the sixth respondent has got necessary approval from the authority concerned and authorities have also stated that there is no prohibited distance and the Pollution Control Board also stated that it is not covered under the Environmental Impact Assessment Notification 2006. Therefore, I do not find any merits in this case and accordingly, the writ petition is dismissed. The interim order already granted by this Court is vacated. No costs. Consequently, the connected miscellaneous petition is closed.