The power to frame rules for granting permission or license lies with the State Government under section 161 of the Tamil Nadu Panchayat Act, 1994.

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari, calling for the records of the proceedings of the second respondent in Na.Ka.No.42691/2011/Q-5 dated 14.06.2012 and quash the same.)

1. The present writ petition has been filed challenging the proceedings of the second respondent herein under which he has proceeded to issue various guidelines for granting permission and license for the erection of windmills and for collection of charges towards granting of such licence in Theni District.

2. According to the petitioner, they are incorporated under Indian Companies Act, 1956 and carrying on the business in the generation of wind energy by erection of wind turbine generators. The petitioner had installed wind energy generators in Theni District, after obtaining proper approval from electricity board. According to the petitioner, they have also entered into energy wheeling agreement with the electricity board and they are enjoying the energy generated in the wind bell. The petitioner has further contended that the second respondent hearin under the impugned order after referring to a judgement of this Court in W.P. (MD)No.9930 of 2011, dated 17.11.2011, has arrived at a finding that wind turbine generators would come within the definition of building under Tamil Nadu Panchayat Act, 1994 and building plan approval should be obtained from under Tamil Nadu Village Panchayat (Assessment and Collection of Taxes) Rules, 1999. The second respondent after having obtained opinion from the Superintending Engineer, NCES and on the basis of KVA had arrived at the approximate cost of the civil works and the approximate cost of Towers of the Wind Turbine Generators in the Theni District and has issued a circular under which he has elaborately laid down the procedure right from applying for building plan approval, making application, quantum of charges and tax and property tax to be paid by the windmill, after the erection of the windmill and the documents that have to be submitted for obtaining such license. The second respondent has further laid down procedure for grant of permission or license by Panchayat Union and fixed the charges to be levied by the said Panchayat Union. Thereafter, the second respondent has proceeded to direct levying of professional tax from the employees of the windmills.

3. According to the learned Counsel for the petitioner, rule making power is vested with the State Government as contemplated under section161 of the Act. The District Collector does not have any authority or power to lay elaborate guidelines in connection with section 159 or 160 of Tamil Nadu Panchayat Act and hence, the entire proceedings of the second respondent is without jurisdiction. Hence, the present writ petition.

4. The learned Additional Government Pleader appearing for the first and second respondents had contended that this Court by an order, dated 17.11.2011, in W.P.(MD)No.9930 of 2011 has categorically held that a windmill would fall within the definition of building and hence, all the legal consequences would follow. The impugned order just attempts to comply with recent judgement of this Court and the proceedings of the District Collector cannot be interfered with.

5. I have carefully considered the submissions made on the either side.

6. The second respondent herein by his proceedings, dated 14.06.2012, has infact framed the rules under section 161 of Tamil Nadu Panchayat Act, 1994. As per section 160 of Tamil Nadu Panchayat Act permission of construction of factories and installment of machinery should be obtained from the Panchayat Union Council. However, a perusal of section 161 clearly indicates that the power to frame such rules are within the exclusive domain of the Government. Especially, section 161 (1)(C) empowers the Government to prohibit or regulate the grant of permissions under section 160.

7. Hence, it is clear that the Government alone has go