IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.3.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.16438, 17098 to 17100 of 2009 W.P.No.16438 of 2009 M/s.Coimbatore Super Alloys Pvt. Ltd. rep. by its Managing Director, Mr.S.Rajendran Telugupalayam Pirivu, Elappalayam P.O. Annur (via) Pogalur, Coimbatore District. .. Petitioner Vs. 1. The District Collector Tirupur District. 2. Madapur Panchayat Union rep. by its President Madapur, Pongalur Taluk Coimbatore District. .. Respondents Prayer in W.P.No.16438 of 2009: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records of the second respondent pertaining to the impugned order issued by the second respondent in Na.Ka.No.147/2008/Katru, dated 10.6.2009 and consequential reply dated 29.6.2009 and quash the same. W.P.Nos.17098 to 17100 of 2009 M/s.The Dharmapuri Roller Flour Mills rep. by its Partner, Mr.S.Seshadri 297, Main Road, Shevapet Salem – 636 002. .. Petitioner in WP:17098/2009 M/s.Narasu's Exports rep. by its Managing Partner, Mr.Sivanantham 16, Court Road, Post Box No.770 Johnsonpet, Salem – 636 007. .. Petitioner in WP:17099/2009 https://hcservices.ecourts.gov.in/hcservices/ G.Venugopal .. Petitioner in WP:17100/2009 Vs. 1. The District Collector Tirupur District. 2. The Assistant Director of Rural Development Department Tirupur District. 3. Madapur Panchayat Union rep. by its President Madapur, Pongalur Taluk Tirupur District. .. Respondents Prayer in W.P.No.17098 to 17100 of 2009: Petitions under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to call for the records of the respondents in connection with the impugned order issued by the third respondent in Na.Ka.No.147/2008/Katru, dated 10.6.2009 and to consequently direct the third respondent to desist from interfering with the peaceful running of the Wind Energy Generators in the petitioners' premises. For Petitioner : Mr.S.Satish Rajan in WP:16438/2009 For Petitioners : Mr.M.Ravi in WPs:17098 to 17100/2009 For Respondents : Mr.R.Neelakandan Government Advocate for 1st respondent in WP:16438/2009 and for respondents 1 and 2 in WP:17098 to 17100/2009 Ms.S.Anitha Harinath for 2nd respondent in WP:16438/2009 and for 3rd respondent in WP:17098 to 17100/2009 ORDER In the first writ petition (W.P.No.16438 of 2009), the petitioner is a private limited company seeking to challenge the order of the second respondent/Panchayat dated 10.6.2009 and the https://hcservices.ecourts.gov.in/hcservices/ consequential reply dated 29.6.2009. Notice was ordered on 17.8.2009 and pending the notice, interim stay was granted. 2. Subsequently, the other three writ petitions (W.P.Nos.17098 to 17100 of 2009) are filed by three different managements and those writ petitions challenge the order of the third respondent/Panchayat dated 10.6.2009 and seek for a consequential direction to the respondents to forbear from interfering with the Wind Energy Generators in the petitioners premises. When the matter came up on 24.8.2009, this Court directed private notice to be issued to the respondents and pending that interim stay was also granted. 3. By the impugned notice dated 10.6.2009, the Panchayat has informed the petitioners that they have violated the Tamil Nadu Panchayats Act, 1994 (for brevity "the Act") as well as G.O.Ms.No.255, Rural Development (C2) Department, dated 18.8.1997 and G.O.Ms.No.172, Revenue Department, dated 28.3.2000. It is further stated that the petitioners have erected electric poles in the Panchayat road without seeking permission from the Panchayat. In view of these violations, the Panchayat has given them notice as to why the wind mills and the so-called structures should not be demolished and removed at the cost of the petitioners. 4. According to the petitioners, in the notice given by the Panchayat, there is no reference to the power exercised by them. They sent a legal notice asking the Panchayat to provide details about their proceedings but by a reply dated 7.7.2009, the Panchayat informed them that they are not entitled to copies, but however they are at liberty to take note of these proceedings by having access to the internet. It is stated that G.O.Ms.No.255, Rural Development (C2) Department, dated 13.12.1999 is nothing but the statutory rules, viz., The Tamil Nadu Village Panchayats (Assessment and Collection of Taxes) Rules, 1999. It is the case of the petitioners that neither the Rules nor the main enactment gives power to the Panchayat to demolish or to remove the Wind Energy Generators on account of non-obtaining prior permission from the Panchayat. 5. According to the petitioners, the term "house" has been defined under Section 2(14) of the Act as under: "Section 2(14): "house" means a building fit for human occupation, whether as a residence or otherwise, having a separate principal entrance from the common way and includes any shop, workshop or warehouse or any building used for garaging or parking buses or as a bus-stand." Therefore, the petitioners contend that the Wind Energy Generator will not come within the definition of "house" as defined under the https://hcservices.ecourts.gov.in/hcservices/ Act. That apart, the mobile temporary structure measuring 8 x 8 feet, which is set up near the Wind Energy Generators and used as Control Room for monitoring the system, will also not come under the definition of "house", as it is only a temporary mobile structure and it cannot be used as a shop, workshop, warehouse or for any other major purpose, viz., parking areas. The structure is also not fit for human occupation and therefore, the Panchayat cannot deem it as a house and demand tax under Section 172(1) of the Act. 6. It is also claimed that Sections 159 and 160 of the Act are inapplicable. Section 159 of the Act reads as follows: "Section 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 licence 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 its publication. (4) The Village Panchayat shall be the authority competent to grant the licence or to refuse to grant it." According to the petitioners a reading of these provisions will make it clear that a Wind Energy Generator cannot be termed as offensive or dangerous to human life or health or property and that should have been the notification issued by the State Government, which has not been done so far. 7. It is also stated that if any machinery or manufacturing plant are operated by consuming power or water power or other mechanical or electricity power or electricity power, then only Section 160(b) of the Act will apply. In the present case, there is no such machinery operated. Therefore, in the absence of any specific power, the invokation of the orders of the Government to collect tax from the petitioners is without jurisdiction. 8. On behalf of the Panchayat, counter affidavits have has been filed in W.P.Nos.16438 and 17098 of 2009. In the counter affidavits, they have stated that under Section 131 of the Act, no person can without permission and except with the conditions https://hcservices.ecourts.gov.in/hcservices/ imposed by any licence build any wall or erect any fence or other obstruction or projection or can make any encroachment, whether it is permanent or temporary in any public road and they are also prohibited from making any hole or deposit any matter on any public road. They are also further prevented from erecting any building over any drain or any part thereof. In such circumstances, the power has been vested with the executive authority of the Panchayat to take appropriate action. 9. In G.O.Ms.No.172, Revenue Department, dated 28.3.2000 rates have been fixed for panchayat to collect from institutions which are using road for commercial purposes. Under the Tamil Nadu Panchayats Building Rules, 1997 framed by G.O.Ms.No.255, Rural Development (C2) Department, dated 18.8.1997, more particularly under Rule 4, application for approval of sites for buildings and huts is required. If no such permission is obtained as notified by the authorities, then the executive authority of the Panchayat can not only order stop work for breach of Rules, but also order demolition. 10. The petitioners contention that the term "house" will not cover the generator room cannot be accepted and a reading of the provisions will show that it not only means a building fit for human occupation to be used as a residence or otherwise, but also includes any shop, workshop or warehouse. 11. The term "house" is defined as follows under Section 2(14) of the Act: "Section 2(14): "house" means a building fit for human occupation, whether as a residence or otherwise, having a separate principal entrance from the common way, and includes any shop, workshop or warehouse or any building used for garaging or parking buses or as a bus-stand." 12. The term "hut" is defined as follows under Section 2(15) of the Act: "Section 2(15): "hut" means any building which is constructed principally of wood, mud, leaves, grass or thatch and includes any temporary structure of whatever size or any small building of whatever material made, which the Panchayat may declare to be a hut for the purposes of this Act." 13. The term "building" is defined as follows under Section 2 (1-A) of the Act: "Section 2(1-A): "building" includes a house, out- house, tent, stable, latrine, shed, hut, wall (other https://hcservices.ecourts.gov.in/hcservices/ 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." 14. It is also brought to the notice that by the order of the Government in G.O.Ms.No.1677, Local Administration Department, dated 8.10.1960 only certain machineries are exempted, which includes electrical appliances intended to be used for purely domestic or personal purposes or comfort and non-electric appliances not exceeding two horse-power. But the wind will established by the petitioners will not be governed by the exemption granted. 15. The contention that such building must be usable as residence is unwarranted, as the broad definition found does not restrict the scope of the section. Therefore, the petitioners cannot erect wind mills and generator power rooms and thereafter, tell the Panchayat that they are not covered by the provisions of the Act. Such a stand taken by the petitioners is clearly violative of the Act and the Rules framed thereunder. The petitioner utilizing panchayat road for the purpose of establishing electrical poles without permission cannot come forward to contend that they have unlimited right to use such roads without paying any dues to the Panchayat. 16. Further, certainly the wind mill motor generator room erected adjacent to it is susceptible for property tax as it is also a workshop having building. It is immaterial whether any person is allowed to reside in the said premises or not. Even otherwise, more often a judicial notice can be taken of the fact that there are watchmen deputed for the purpose of guarding these wind mills at the night time. It is not as if no human activities are taking place. In the light of the above, writ petitions stand dismissed. No costs. Consequently, M.P.No.1 of 2009 in W.P.No.16438 of 2009, M.P.No.1 of 2009 in W.P.No.17098 of 2009, M.P.No.1 of 2009 in W.P.No.17099 of 2009 and M.P.No.1 of 2009 in W.P.No.17100 of 2009 are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sasi To: 1. The District Collector Tirupur District. 2. The Assistant Director of Rural Development Department Tirupur District. +3ccs to M/s.M.Ravi,Advocate Sr 21660 +1cc to M/s. S.Sathish Rajan, Advocate Sr 21318 KSK(CO) km/7.4. W.P.Nos.16438, 17098 to 17100 of 2009 https://hcservices.ecourts.gov.in/hcservices/