Madras High Court
M/S.Green Infra Wind Generation ... vs The Government Of Tamilnadu on 22 September, 2022
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P.(MD).No.11117 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 22.08.2022
PRONOUNCED ON : 22 .09.2022
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).No.11117 of 2014
and
M.P.(MD)No.1 of 2014
M/s.Green Infra Wind Generation Limited
2nd Floor, Tower II, NBCC Plaza
Pushp Vihar, Sector -V
Saket, New Delhi 110 017
Represented by its Authorised Signatory
V.Babu ...Petitioner
Vs
1.The Government of Tamilnadu,
represented by Secretary to Government,
Rural Development and Local
Administration Department,
Fort St. George, Chennai 600 009
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W.P.(MD).No.11117 of 2014
2.The District Collector
Theni District, Theni
3.The Director -Project
Tamil Nadu Generation and Energy Development Corporation
No.144, Anna Salai, Chennai 600 002
4.The Block Development Officer
Bodinackanur Panchayat Union
Bodinaickanur, Theni
5.The President
Silamalai Village Panchayat
Silamalai, Theni District ....Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Certiorarified Mandamus, to
call for the records relating to the proceedings of the 5th respondent
herein in Na.Ka.No. /2012/P.1 dated 21.07.2012 and quash the same
and consequently, to forbear the respondents herein from, in any manner,
interfering with or dismantling or interrupting functioning of the Wind
Turbine Generators erected by the petitioner in S.Nos.490/2(P),
491/1B(P), 2(P) and 542/5, 6A, 6B, 6C, 6D, 6E, 6F, 6G and 6H in
Silamalai Village, Bodinaickannur Taluk, Theni District.
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W.P.(MD).No.11117 of 2014
For Petitioners : Mr.K.Kumaravel
For R1, R2, R4
and R5 : Mr.S.Shanmugavel
Additional Government Pleader
For R3 : Mr.S.Deenadhayalan
Standing Counsel
****
ORDER
The present writ petition has been filed challenging an order passed by the 5th respondent hearin under which building plan approval fees, house tax and professional tax was demanded from the writ petitioner who has erected a windmill.
2.The learned counsel for the petitioner has contended that they have put up wind turbine generators falling in the survey numbers falling within the jurisdiction of the 5th respondent village panchayat. The petitioners have further submitted that the 5th respondent addressed a letter on 21.07.2012 that without permission from the panchayat, the 3/13 https://www.mhc.tn.gov.in/judis W.P.(MD).No.11117 of 2014 windmill is being erected and operated and he had called upon to furnish details of various wind turbine generators ereected within the limits of the panchayat.
3.According to the learned Counsel for the writ petitioner, the order impugned in the writ petition, dated 21.07.2012, was passed by the 5th respondent herein invoking the power under G.O.Ms.No.255, Rural Development and Local Administration Department, dated 13.12.1999, under which they have imposed charges for building plan approval and also proceeded to impose house tax. The said order is under challenge in the present writ petition. The main ground of attack of the petitioners is that section 160 contemplates that permission for construction of factories and installment of machineries has to be obtained only from the Panchayat Union Council and not from the Panchayat. The rules relating to grant of permission or for renewal of licence has to be framed as contemplated under section 161 of Tamil Nadu Panchayat Act. So far Tamil Nadu Government has not framed any rules as contemplated under section 161 of the Act. The petitioners have further contended that the respondent panchayat has no power whatsoever to demand any amount 4/13 https://www.mhc.tn.gov.in/judis W.P.(MD).No.11117 of 2014 towards establishment or construction of factories and installment of machineries which is clearly in violation of section 160 of the Act. Despite several demands, the 5th respondent Panchayat has refused to divulge their statutory powers so as to impose these taxes on the writ petitioner companies. Hence, he prayed for allowing petition.
4.Per contra, learned Additional Governemnt Pleader appearing for respondents have contacted that the respondent authorities have invoked their power to Section 172 read with relevant rules for passing impugned order and the same may be sustained.
5.I have carefully considered the submissions made on either side. As per section 160 of the Tamil Nadu Panchayat Act, a person intending to construct factory or install machinery should obtain prior permission only from the Panchayat Union and not from the Panchayat. Hence, the 5th respondent panchayat has no jurisdiction whatsoever to call for the documents or to direct the petitioners to apply for planning permission. The charges levied by the 5th respondent Panchayat for plan approval are clearly without jurisdiction. The Government has not yet framed Rules 5/13 https://www.mhc.tn.gov.in/judis W.P.(MD).No.11117 of 2014 under Section 161 of the Panchayats Act.
6.Let us consider the various provisions of Tamil Nadu Panchayats Building Rules, 1997. A building plan approval has to be submitted under Section 4(1)(b) of the Rules as contemplated under Appendix-D. The Rules provide for the manner of flooring, room size, drainage, height of the walls and rooms, ventilation, sanitation, latrine, compound wall and rain water harvesting. Rule 32 empowers the Executive Authority to require alteration of work, in case, if it is not in accordance with the plans or specifications which has already been approved. Rule-33 provides for stoppage of work endangering human life. Rule -34 provides for demolition or alteration of building works unlawfully commenced, carried on or completed. Rule-35 provides for levy of fees by Village Panchayats granting building plan approval. Appendix-F provides for levy of fees. The maximum rates and fees that could be levied for a building plan approval is Rs.100/- per square meter or part thereof.
7.A cursory perusal of the above said provisions will make it clear that the said provisions are intended only for the purpose of a building 6/13 https://www.mhc.tn.gov.in/judis W.P.(MD).No.11117 of 2014 which is used for human habitation or work place or a place frequented by human beings on a regular basis. There is every possibility of the Executive Authority refusing to grant building plan permission for a Windmill on the ground that rain water harvesting, toilet, ventilation, sanitation or compound wall has not been shown in the plan. A perusal of Rule 4(5) indicates that approval should not be granted for construction if electric lines are very close to the building. The Windmills are being erected/installed only for the purposes of generation of electricity and quite naturally, they are connected with electrical lines. Hence, these provisions, if applied to a Windmill will clearly result in disastrous consequences. The said provisions have not been brought to the notice of the learned Single Judge.
8.A further reading of the above said Building Rules will indicate that no specific standards are mentioned for erection of a Windmill. Unless specific standards are mentioned in the statutory rules, a Windmill generator could not seek approval for his building plan that it is as per specific Rules. The learned Single Judge of this Court in a 7/13 https://www.mhc.tn.gov.in/judis W.P.(MD).No.11117 of 2014 judgement reported in 2012 (5) CTC 450 (Mad) ( The President, Gangaikondan Panchayat, Tirunelveli Vs. The Chief Engineer, Chennai and others) in Paragraph No.15 has recorded that the Rules are yet to be framed under Section 159 of the Tamil Nadu Panchayat Act. Until such Rules are framed, even the Panchayat Union cannot insist upon the Windmill owner to get license from them. No specific standards are mentioned in the statutory Rules and the Rules already framed relate only to the building meant for human occupation. When the Rules already framed do not in any way conform to the standard required for a Windmill, the question of invoking Tamil Nadu Panchayat Building Rules, 1997 does not arise.
9.The 5th respondent in his impugned order has invoked the Tamil Nadu Village Panchayat (Assessment and Collection of Taxes) Rules, 1999, for payment of property tax to the village panchayat. The second respondent has referred to section 172 of the Tamil Nadu Panchayat Act. Section 172 specifically refers to house tax. The house is defined under section 2(14) of the Tamil Nadu Panchayat Act. Unless the building is fit 8/13 https://www.mhc.tn.gov.in/judis W.P.(MD).No.11117 of 2014 for human occupation or used for garaging or parking bus or it is a factory or bus stand, taxes cannot be levied as contemplated under section 172. Unless section 172 could be invoked, the question of invoking Tamil Nadu Village Panchayat (Assessment and Collection of Taxes) Rules, 1999, does not arise.
10.That apart, the 5th respondent has failed to note that as per rule 16 (2) of the Tamil Nadu Village Panchayat (Assessment and Collection of Taxes) Rules, 1999, machinery and furniture have to be excluded for the purpose of determining the annual or capital value for assessment of property tax. In the present case, except machinery nothing is available on the land. The windmill is just a standalone machinery. In such view of the matter, the impugned order is without jurisdiction.
11.The 5th respondent in the impugned order has also fixed the license fee for installation of Windmill. It is a settled position of law that no amount of tax or fee can be levied without the authority of law. In the present case, as stated supra, the rule making power is solely vested with the Government as contemplated under section 161 of the Tamil Nadu Panchayat Act. Hence, the entire impugned order is without jurisdiction 9/13 https://www.mhc.tn.gov.in/judis W.P.(MD).No.11117 of 2014 and have liable to be set aside. However, the Panchayats are empowered to insist upon building plan approval and property tax for the office building or security room connected with the Windmill.
12.In view of the above said discussion, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
22.09.2022
Index : Yes / No
Internet : Yes / No
msa
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W.P.(MD).No.11117 of 2014
To
1.The Secretary to Government,
Government of Tamilnadu,
Rural Development and Local
Administration Department,
Fort St. George, Chennai 600 009
2.The District Collector
Theni District, Theni
3.The Block Development Officer
Bodinackanur Panchayat Union
Bodinaickanur, Theni
4.The President
Silamalai Village Panchayat
Silamalai, Theni District
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W.P.(MD).No.11117 of 2014
R.VIJAYAKUMAR ,J.
msa
Order made in
W.P.(MD).No.11117 of 2014
and
M.P.(MD)No.1 of 2014
22.09.2022
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W.P.(MD).No.11117 of 2014
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