PRAYER
Writ petition has been filed under Article 226 of the Constitution of India 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 Panchayat Act, 1994 and the rules framed thereunder.
ORDER
1. 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.
2. 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 under Section 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.
3. 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 and 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 14.03.2012 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.
4. 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.
5. 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.
6. 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.
7. However, the learned counsel appearing for the petitioner relied on the decision reported in (2012) 3 M.L.J. 6 - S.Muppidathi v. Chief Engineer, Non Conventional Energy Sources (NCES), Tamil Nadu Electricity Board, Chennai 600 002 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 and 7 has held as follows:- 6. 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.
7. 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.
8. 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 reported in 2011 (1) CTC 854 - Shalini Shyam Shetty and another v. Rajendra Shankar Patil, while dealing with the present issue, in paragraph 64, has held as follows:- 64. 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.
9. 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.
10. 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 under Section 160 of the Act, seeking permission from the Panchayat Union Council is not necessary.
11. 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. CE, Non Conventional Energy Sources reported in 2012 (3) MLJ 6. He has relied on the provisions under the Factories Act and Section 2(1-A) of the Act.
12. 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 under Section 160 of the Act. The matter in issue has been dealt with extensively in the decision in S.Muppidathi's case, cited supra. Paragraph Nos.19 and 20 of the said Judgment made thereunder are usefully extracted hereunder:-
19. 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.
20. 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.
13. 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.
14. 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 and 161 of the Act. Before adverting to the said contention, it would be useful to refer to Sections 159 and 161 of the Act, which read as follows:-
159. 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 sub-Section (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].
161. 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 under Section 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 under Section 160.
15. 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 under Section 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.
16. 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:- 160. 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.
17. 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.
18. A Division Bench of this Court in the decision reported in 2011 (1) CWC 521 - P.Ganesan v. The District Collector, Tirunelveli District has also taken such view. Paragraph 11 of the said decision is usefully extracted hereunder:-
11. 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.
19. However, the said fact has not been brought before the learned Judge in S.Muppidathi's case. Had it been brought to the notice of the learned Judge, perhaps, the learned Judge would have taken a different view.
20. 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.