BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24/08/2011 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR W.P.(MD)No.3544 of 2011 and M.P(MD)Nos.1 and 2 of 2011 M/s.Beta Wind Farms Private Limited, represented by its Authorised Signatory, J.Sriram, 3rd Floor, Egmore Benefit Fund Building, No.25, Flowers Road, Kilpauk, Chennai - 600 010. ... Petitioner Vs. 1.The Government of Tamil Nadu, represented by its Principal Secretary, Energy Department, Secretariat, Chennai - 600 009. 2.The District Collector, Tirunelveli District, Tirunelveli. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records of the order No.A3/2409/2010 dated 14.07.2011 passed by the second respondent and quash the same and consequently, direct the respondents to grant permission to the petitioner to erect and commission the wind mill at a distance of 3.5 kms from the Koodankulam Nuclear Power Plant at Koodankulam, at Vijayapathi and at Irukkanthurai village in Radhapuram Taluk, Tirunelveli District. (Prayer amended as per the order of this Court dated 10.08.2011 in M.P(MD)No.3 of 2011 in W.P(MD)No.3544 of 2011) !For Petitioner ... Shri N.R.Chandran, Senior Counsel, for Mr.A.Thirumurthy ^For Respondents ... Mr.M.Govindan, Special Govt. Pleader * * * * * :ORDER
This writ petition has been filed by the petitioner praying to issue a
writ of Certiorarified Mandamus, to call for the records of the order
No.A3/2409/2010 dated 14.07.2011 passed by the second respondent and quash the
same and consequently, direct the respondents to grant permission to the
petitioner to erect and commission the wind mill at a distance of 3.5 kms from
the Koodankulam Nuclear Power Plant at Koodankulam, at Vijayapathi and at
Irukkanthurai Village in Radhapuram Taluk, Tirunelveli District.
2. Heard Shri N.R.Chandran, learned Senior Advocate for Mr.A.Thirumurthy,
learned Counsel appearing for the petitioner and Mr.M.Govindan, learned Special
Government Pleader appearing for the respondents.
3. By consent, the writ petition itself is taken up for final disposal.
4. The petitioner challenges the order of the second respondent District
Collector dated 14.07.2011 made in No.A3/2409/2010.
5. The petitioner is a Private Limited Company engaged in the
establishment of Wind Farms. They sought permission of the District Collector –
competent authority for erection of 23 Windmills in two Village Panchayat areas
during May 2010.
6. The Village Panchayats concerned forwarded the applications to the
Commissioner of the Panchayat Union, Radhapuram Taluk so as to place the same
before the Koodankulam Project Local Committee constituted under G.O.Ms.No.829,
Public Works Department, dated 29.04.1991 for its consideration and approval.
7. Initially, the Commissioner of Radhapuram Panchayat Union by
proceedings dated 19.07.2010 informed the petitioner that their application for
erection of 23 Wind Mills was rejected as it amounts to an industrial activity.
Against this, the petitioner filed an appeal to the District Collector on
27.07.2010. The said appeal has not been disposed of even as on today.
8. Thereafter, based on certain clarification issued by the various
Government authorities, the petitioner once again approached the Commissioner of
Radhapuram Panchayat Union for approval and the matter was placed before the
Koodankulam Project Local Committee for consideration. The request was
considered and a favourable report/order was passed in the meeting of the
Koodankulam Project Local Committee on 25.02.2011, by way of a resolution which
reads as follows:
Applica-tion Nos. Details Abstract of the Resolution
1 to 24 Establish- The applications received for the
ment of wind establishment of wind mills have
mills been rejected in the local committee
meeting held on 16.7.2010 on the ground
that establishment of wind mill amounts
to the development of industry. It has also
been clarified that the applicants shall make
appeal before the District Administration. The
letters of the Principal Secretary, Energy (C-2)
Department, Export Promotion Bureau and the
certificate dated 25.1.2011 of the Managing Director
of Tamil Nadu Energy Development Agency have been
considered in this meeting. In the above three
documents, it has been stated that wind mill is not
an industrial development. Therefore, the applications
1 to 24 are forwarded to the District Collector for
favourable decision.
9. This was forwarded by the Commissioner of Panchayat Union, Radhapuram
to the Assistant Director of Rural Development (Panchayats), Tirunelveli, on the
same day vide proceedings in Na.Ka.A4/2092/2010 dated 25.02.2011.
10. Based on the above, the petitioner filed the present writ petition for
a Writ of Mandamus directing the second respondent to grant permission to the
petitioner to erect and commission the wind mill at a distance of 3.5 Kms from
the Koodankulam Nuclear Power Plant at Koodankulam, at Vijayapathi and at
Irukkanthurai villages in Radhapuram Taluk, Tirunelveli District. On
31.03.2011, an interim order was passed in M.P(MD)No.1 of 2011 in W.P(MD)No.3544
of 2011 to inspect the erection of 7 wind mills which is said to have been
completed by the petitioner and the District Collector was asked to pass an
order. The interim order has been passed with a rider that the Commissioning
or erection of the windmill will not give any right to the petitioner to claim
the substantial relief (i.e.) permission for erection of the windmills. It was
specified in that order that the Department can seek necessary order from the
Government since the matter was pending before the Government.
11. Based on the interim order, it appears that on 05.04.2011, the
Koodankulam Project Local Committee submitted a report with regard to the
erection of 7 wind mills. Thereafter, the District Collector passed an order on
14.07.2011 rejecting the request of the petitioner.
12. The petitioner was given liberty to challenge the said order by filing
an application for amendment of the prayer in the pending writ petition. The
amendment as sought for was ordered and the writ petition is now taken up for
consideration on merits. The respondents stated that the counter already filed
will suffice.
13. The impugned order passed by the District Collector dated 14.07.2011
is challenged on the following grounds:
(i) The District Collector, having relied upon the Government Order has failed
to exercise the power in the manner prescribed under G.O.Ms.No.829, Public Works
Department, dated 29.04.1991.
(ii) No opportunity was given to the petitioner to be heard before rejecting
their claim and therefore, there is a violation of principles of natural
justice.
(iii) The letter of the Principal Secretary to Government in Letter
No.3282/C2/2011 dated 19.07.2011, in particular, paragraph 4, has not been
complied with in pith and substance.
14. Counter-affidavit was filed in respect of the unamended writ petition
on 29.03.2011 before the impugned order of the District Collector dated
14.07.2011 was passed. The counter, however, is almost on the same lines as that
of the impugned order. The very same reasons are contained in the counter
affidavit. Therefore, it will be sufficient if the impugned order is taken into
consideration on the points urged by the learned Counsel for the petitioner and
on the basis of the counter filed.
15. The order under challenge proceeds on the basis that the Inspector of
Factories, Tirunelveli, was asked to clarify whether the windmill is an
industry. The said authority has sent an extract of National Industrial
Classification (All Economic Activities) issued by the Central Statistical
Organization, Ministry of Statistics and Programme Implementation, Government of
India, New Delhi, wherein it is shown that Electric Power Generation using other
Non-Conventional sources is classified as Industry as per code No.35106. Hence,
the windmill sought to be erected by the petitioner is an industry.
16. Relying upon the guidelines of the Atomic Energy Regulatory Board
(AERB) with regard to the Sterilized Zone and the Emergency Planning Zone (EPZ),
the District Collector came to the conclusion that the industrial activity in
the nature of erection of wind mill should not be allowed in the Sterilized
Zone. He came to the conclusion that erection of wind mill will hamper the
evacuation of people during the time of emergency and that the activities of the
petitioner are coming within the Sterilized Zone and in terms of the guidelines
of the Atomic Energy Regulatory Board, the request of the petitioner for NOC for
erecting 23 wind mills is rejected in order to avoid evacuation of people during
the unlikely event of an accident.
17. The Commissioner of the Radhapuram Panchayat Union, prima facie, was
of the view that the erection of windmill is an industry. For all these
reasons, the request was rejected.
18. After going through the order under challenge and the contentions
raised by the petitioner, this Court finds that the order under challenge
deserves to be set aside and remitted back to the said authority by way of
remand for the following reasons:
(1) The District Collector has placed reliance on G.O.Ms.No.829, Public Works
Department, dated 29.04.1991, but he has, however, come to the conclusion that
NOC should be rejected. Clauses (ii) and (iii) of the G.O., clearly state that
if the District Collector comes to the conclusion that the recommendations of
the Committee need to be revised or amended, he shall forward it to the State
Government with his comments and the State Government alone will decide the
issue. Since the District Collector in this case has decided to reject the
applications for grant of NOC inspite of specific recommendation by the
Koodankulam Project Local Committee, he has to follow the procedure under
Clauses (ii) and (iii) of G.O.Ms.No.829, Public Works Department, dated
29.04.1991. Failure to do so would render the order bad.
(2) In the order under challenge, the District Collector has referred to
several documents which have been received including the letter of the Inspector
of Factories, Tirunelveli and the proceedings of the District Collector in
Proceedings No.A3/2409/2010 dated 24.11.2010. Both the documents as above have
not been furnished to the petitioner and therefore, there is a violation of
principles of natural justice.
(3) The District Collector while considering the claim of the petitioner, failed
to take into consideration the letter of the Principal Secretary to Government,
Energy (C2) Department, in Letter No.7703/C2/2010 dated 06.09.2010 which clearly
states that the windmill is not a factory or an industry engaged in
manufacturing process. A copy of it has been addressed to the District
Collector, Tirunelveli and hence, it shows non-application of mind to relevant
factor.
(4) The District Collector has not taken into consideration the Certificate
issued by the Tamil Nadu Energy Development Agency which is headed by the
Additional Chief Secretary, the Chairman cum Managing Director – an Officer in
the rank of Indian Administrative Service, who has clearly stated that windmill
does not constitute an activity under the category of Industry for prohibition.
This is a relevant fact not considered.
19. Therefore, the non-consideration of these factors has resulted in
passing of the impugned proceedings erroneously. If it was considered, it would
have made a difference in the final outcome of the decision of the District
Collector. It is relevant to consider whether a windmill is an industry or
not.
20. In any event, subsequent to the filing of the writ petition, in the
letter of the Principal Secretary to Government in Letter No.3282/C2/2011 dated
19.07.2011, addressed to the District Collector, Tirunelveli, at paragraph 4,
the District Collector has been requested to consider the report of the
Koodankulam Project Local Committee and follow the procedures laid down in
G.O.Ms.No.829, Public Works Department, dated 29.04.1991. The District
Collector has failed to give any reason as to whether he is accepting the views
of the Koodankulam Project Local Committee positively or negatively except a
mere reference. There is no reason whatsoever in the order to state as to
whether the report of the Koodankulam Project Local Committee is accepted or
rejected. Therefore, there is a clear omission on the part of the District
Collector to consider relevant fact which is the mandate of the Government
Order. It is trite law that subsequent events can be taken into consideration
if it is relevant to the point in issue. The Honourable Apex Court has held so
in many cases.
21. The reference to the guidelines of the Atomic Energy Regulatory Board
(AERB) is for the Government to consider in the event of the District
Collector rejecting or refusing to grant NOC and therefore, the rejection order
on this ground will be without jurisdiction.
22. In the result, for all the above reasons, the impugned order passed
by the second respondent in No.A3/2409/2010 dated 14.07.2011, is set aside and
the matter is remitted to the District Collector – second respondent for
reconsideration on merits in accordance with law after giving the petitioner an
opportunity of personal hearing. Such exercise shall be completed within a
period of eight weeks from the date of receipt of a copy of this order.
23. The writ petition is ordered by way of remand. Consequently, the
connected Miscellaneous Petitions are closed. No costs.
rsb/ts
To
1.The Principal Secretary,
The Government of Tamil Nadu,
Energy Department,
Secretariat,
Chennai – 600 009.
2.The District Collector,
Tirunelveli District,
Tirunelveli.