Madras High Court
Nsl Renewable Power Private Limited vs The President on 30 July, 2012
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.07.2012 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR W.P.Nos.19604 and 20571 of 2012 and M.P.No.1 of 2012 in W.P.20571 of 2012 and M.P.Nos.1 to 3 of 2012 in W.P.19604 of 2012 NSL Renewable Power Private Limited Rep. By its Senior Manager, 4th Floor, NSL Icon, Road No.12, Banjara Hills, Hyderabad 500 034. ... Petitioner in W.P.19604/2012 Lakshmi Machine Works Limited, 34-A, Kamaraj Road, Coimbatore 641 018, Rep. By its Company Secretary. ... Petitioner in W.P.20571/2012 vs. 1.The President, 3/14 Ganapathipalayam Panchayat, Udumalpet Panchayat Union, Tiruppur District 642 122. 2.The Secretary, Government of Tamil Nadu, Rural Development and Local Admn. Dept.I, Fort St.George, Chennai 600 009. ... Respondents in both W.Ps. Prayer in W.P.19604/12:Writ petition filed under Article 226 of the Constitution of India for issuance of a writ of Certiorari to call for the records comprised in Letter No.30/U.E.The/Kana/Se.Mu.Na/Ka-1/12 dated 09.07.2012 of the first respondent and quash the same as being arbitrary, illegal and ultra vires the provision of the Tamil Nadu Panchayat Act, 1994. Prayer in W.P.20571/12:Writ petition filed under Article 226 of the Constitution of India for issuance of a writ of Certiorari to call for the records of the first respondent Letter No.31/C/k.j-fz-br/K/j-fh-1/12 dated 12.07.2012 and quash the same. For Petitioner :Mr.Rahul Balaji in W.P.19604/12 Mr.Karthik for M/s.Gopalan & Co in W.P.20571/12 For Respondents :Mr.C.Srinivasan for R1 in both W.Ps. Ms.V.M.Velumani for R2 Special Government Pleader C O M M O N O R D E R
In these two writ petitions, the petitioners have installed Wind Energy Generators.
2.In W.P.No.19604/2012, the petitioner has established Wind Energy Generators after obtaining clearance from TANGEDCO and after getting necessary permission from the competent authorities, the wind mills were installed in March 2005 and functioning for more than seven years. The first respondent issued communication dated 09.07.2012 informing the petitioner that the petitioner has failed to get necessary permission and sanction from the Village Panchayat under section 160 of the Tamil Nadu Panchayat Act 1994. The order also states that the petitioner should dismantle the wind mill within 21 days failing which appropriate action will be taken and that order is under challenge.
3.In W.P.No.20571 of 2012, the petitioner is a Company engaged in Textile spinning machinery, CNC Machine Tools, Castings and Aerospace equipments. In order to tied over the power shortage, the petitioner has erected special Wind Energy Generators in different parts of Tamilnadu and one Wind Energy Generator has been erected in an extent of 3.84 acres in S.Nos.193/2I, 193/2H and 193/2E in Venasapatti village falling within the control of the first respondent. In this case also, the wind energy generator has been commissioned as early as on 2008. According to the petitioner, all necessary permissions have been obtained and only thereafter, the Wind Energy Generators are in operation from 17.03.2008. The first respondent issued communication dated 12.07.2012 calling upon the petitioner to remove the Wind Electric Generator within 21 days failing which action will be taken for compliance.
4.In both the cases, the petitioners challenged the impugned proceedings inter allia contending that no show cause notice has been issued and an opportunity of personal hearing has been denied by the first respondent. The order on the face of it directing the petitioners to remove the Wind Energy Generators within 21 days is arbitrary and capricious.
5.Heard Mr.Rahul Balaji and Mr.Karthik, learned counsel for the petitioners, Mr.C.Srinivasan, learned counsel for the first respondent and Ms.V.M.Velumani, learned Special Government Pleader appearing for the second respondent.
5.At this juncture, there is no role for the second respondent, as the impugned proceedings is issued by the first respondent. In this regard, it is relevant to point out that a similar issue was considered by the Division Bench of this Court in W.A.Nos.1145 to 1147 of 2010 by order dated 14.06.2010, held that the proceedings similar to the present one under challenge should be treated as show cause notice giving liberty to the writ petitioners to submit their explanation within two weeks from the date of copy of the order and thereafter to pass final orders. Till such time the final decision is taken, the respondent Panchayat was directed not to take any coercive steps against the Wind Energy Generators.
6.Paragraph Nos.11 and 12 of the Division Bench order reads as follows:
"11.Considering the facts and circumstances of the case, we consider it appropriate to dispose of the writ appeals with a direction that the appellants shall treat the impugned order dated 10.06.2009 passed by the third respondent as show cause notice and submit their explanation within a period of two weeks from the date of receipt of a copy of this order. Till such time, the respondents are directed not to take any coercive steps against the appellants on the basis of the impugned order. The appellants are also at liberty to apply for permission as required under the Act for erecting wind mill generator and, if any such application is submitted, the third respondent shall consider the same on its own merits and in accordance with law within a period of four weeks from the date of submission of such application.
12.The writ appeals are disposed of with the above directions and observations. No costs. Consequently, the connected miscellaneous petitions are closed."
7.In the present case also, there is no dispute that the impugned orders in both the cases has been passed directing the petitioner to dismantle the Wind Energy Generator within 21 days of receipt of notice despite the fact that the wind mills have been established as early as 2005 in one case and 2008 in the second case. The petitioners primafacie plead that they have already got necessary sanctions from the Government. All these factors could be placed before the Authority and therefore, they should not be disturbed until the issue is decided in one way or other, as per the procedure prescribed by law.
8.Taking an analogy from the above Division Bench order, in both the cases, the impugned proceedings shall be treated as show cause notice and the petitioner in both the cases will be given an opportunity to give their explanation coupled with records to the first respondent within four weeks from the date of receipt of copy of this order and thereafter, the first respondent will pass speaking order on merits. An opportunity of personal hearing shall be granted to the petitioners before taking a decision. Till the issue is decided finally, no coercive steps be taken against the petitioners.
9.The writ petitions are disposed of accordingly. No costs. The connected miscellaneous petitions are closed.
vri To
1.The President, 3/14 Ganapathipalayam Panchayat, Udumalpet Panchayat Union, Tiruppur District 642 122.
2.The Secretary, Government of Tamil Nadu, Rural Development and Local Admn. Dept.I, Fort St.George, Chennai 600 009