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2021 Supreme(Mad) 1344
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VENKATESH, J.
V. Chandrasekaran - Petitioner
Versus
The Chairman and Managing Director, Tamil Nadu Generation & Distribution Corporation Limited, Chennai & Others - Respondents
W.P. No. 14637 of 2020 & WMP Nos. 18168 of 2020 & 11076 of 2021
Decided On : 16-08-2021
For the Petitioner:Vijayan, Karan & Uday, Advocates.
For the Respondents:M. Abdul Kalam, Standing Counsel, A. Selvendran, Government Advocate, Satish Parasaran, Senior Counsel for M/s. Dwarakesh Prabhakaran, ARL. Sundaresan, Senior Counsel for M/s. Fox Mandal & Associates, Advocates.
Headnote:
Constitution of India,1950 - Article 226 - Renewable Energy - Dwelling for the mitigation of noise - Erection of windmills comprised - Whether non-compliance with Guidelines is a bar for TANGEDCO to give its approval and for 6th and 7th respondents to proceed further with the erection of the wind turbine - Petitioner is that 6th respondent, through 7th respondent Contractor was attempting to erect a wind turbine in Survey within a distance of 170 meters from the property belonging to petitioner petitioner, same is in violation of Guidelines issued by the Government of India in - Respondents, and since no action was taken, the petitioner filed a writ petition before Court in W.P.No. and this Court, by an order disposed of writ petition by directing 4th respondent to consider the representation and take a decision - Petitioner for an enquiry, and it was informed that some attempts could be made to compromise dispute - Parties did not arrive at any compromise - Petitioner gave yet another representation to forbear the 6th respondent from proceeding further to erect the wind turbine same was not considered, the present writ petition has been filed before this Court, seeking appropriate directions –
Finding of the Court:
Proposed new/re-powering WEG is nearer to already registered/proposed locations, 5D/7D criteria has been relaxes to 3Dx5D to accommodate optimum WEG location to achieve the objective of the MNRE Guidelines - Consciously taken a decision to review the spacing/distance criteria for better utilisation of the available wind resource within limited available land - TANGEDCO has relaxed the Microtising restrictions, thereby encourages wind energy generators. TANGEDCO has also taken into consideration MNRE Guidelines and thereafter prescribed the norms through the board proceedings - Location clearance and approval to set up a wind turbine generator on any land - Board proceedings, the prescribed distance to be maintained by a wind turbine generator is 195 meters in all directions - TANGEDCO officials conducted an inspection of the area and, on being satisfied that micrositing requirements were fulfilled, granted clearance to the 6th respondent to proceed further to erect wind turbine, through proceedings subject to conditions - Considered view that 6th respondent has complied with the requirements of the applicable laws and regulations and 7th respondent contractor, is entitled to proceed further to set up wind turbine generator in subject property - Court holds that MNRE Guidelines lack statutory backing and, therefore, it is not enforceable - Reliance placed upon by petitioner on these Guidelines is unsustainable –
Result: Writ petition is dismissed
JUDGMENT :
(Prayer: Writ Petitions filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, Directing the 1 to 5 Respondents forbearing the 6th Respondent from erection of windmills comprised in Survey No. 432 situated at Monganallampalayam, Erachapadipost, Dharapuram via Thiruppur District.)
1. This writ petition has been filed for the issue of a Writ of Mandamus directing respondents 1 to 5 to forbear the 6threspondent from erecting any wind turbine in the subject property.
2. The case of the petitioner is that he is the owner of the property situated at Survey Nos.433/2 and 430/1 at Kollupadyan Kadu, Vettukattam Thotam, Monganallampalayam, Erachapadi Post, Dharapuram Via, Thiruppur District.
3. The grievance of the petitioner is that the 6th respondent, through the 7th respondent Contractor was attempting to erect a wind turbine in Survey No.432 within a distance of 170 meters from the property belonging to the petitioner. According to the petitioner, the same is in violation of the Guidelines issued by the Government of India in F.No.66/183/2016-WE, dated 22.10.2016. The petitioner particularly placed reliance on Clause V(v) of the Guidelines, and for proper appreciation, the same is extracted hereunder:
V. Micrositing
v. Developer(s) shall not site wind turbines within 500 m of any dwelling for the mitigation of noise.
4. The petitioner made a representation in this regard to the official respondents, and since no action was taken, the petitioner filed a writ petition before this Court in W.P.No.1201 of 2020, and this Court, by an order dated 05.03.2020, disposed of the writ petition by directing the 4th respondent to consider the representation and take a decision.
5. It is stated that the 5th respondent called the petitioner for an enquiry, and it was informed that some attempts could be made to compromise the dispute. However, the parties did not arrive at any compromise. Therefore, the petitioner gave yet another representation to forbear the 6th respondent from proceeding further to erect the wind turbine. Since the same was not considered, the present writ petition has been filed before this Court, seeking appropriate directions.
6. Respondents 1 to 3 have filed a counter affidavit. They have taken a stand to the effect that the 6th respondent had submitted a proposal for a location to erect the wind turbine, and this proposal was considered in line with the board proceedings dated 09.11.2018. The TANGEDCO found that the location was in compliance with the board proceedings. The approval was granted by proceedings dated 08.01.2020, subject to certain conditions. A specific stand has been taken in the counter affidavit to the effect that the guidelines of the Central Government regarding micrositing is based on an optimised output and is not a strictly mandated minimum distance. In other words, the guidelines under micrositing are only to secure optimised output.
7. The 6th and 7th respondents have also filed counter affidavits and have taken a stand that the guidelines of the Central Government do not have the force of law, and it is the board proceedings of the TANGEDCO which has a statutory force, and according to these respondents, the TANGEDCO was satisfied with the compliance of the board proceedings and approval was also granted and therefore, there is absolutely no ground to interfere with the work undertaken by the 7th respondent to erect the wind turbine.
8. Heard Mr. Vijayan, learned counsel for the petitioner and Mr. M. Abdul Kalam, learned Standing Counsel for respondents 1 to 3 and Mr. A. Selvendran, learned Government Advocate for respondents 4 & 5 and Mr. Satish Parasaran, learned Senior Counsel for 6th respondent and Mr. ARL. Sundaresan, learned Senior Counsel appearing on behalf of the 7th respondent.
9. This Court has carefully considered the submissions made on either side and the materials available on record.
10. The main issue that arises for consideration in the present cas
