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2022 Supreme(Mad) 3619
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. VIJAYAKUMAR, J.
M/S. Gamesa Wind Turbines Private Limited, Represented by its Authorized Signatory, S. Dhanasekar, Chennai & Another - Appellant
Versus
The Government of Tamilnadu, Represented by Secretary to Government, Chennai & Others - Respondent
W.P.(MD). No. 3276 of 2012 & M.P.(MD). No. 2 of 2012
Decided On : 19-09-2022
For the Petitioners:D. Venkatesh, Advocate. For the Respondents:R1 & R2, Veera Kathiravan, Additional Advocate General assisted by N. Muthuvijayan, Special Government Pleader, R3, S. Bharathi, R4, G. Prabhurajadurai, Advocates.
The main legal point established in the judgment is the limitation on the jurisdiction of the panchayat to demand fees and taxes for windmills under the Tamil Nadu Panchayat Act and the relevant building and tax rules.
Headnote:
Windmill - Jurisdiction of Panchayat - Tamil Nadu Panchayat Act, Section 160, 161, 172, Tamil Nadu Panchayats Building Rules, 1997, Tamil Nadu Village Panchayat (Assessment and Collection of Taxes) Rules, 1999 - The court discussed the jurisdiction of the Panchayat under Section 160 of the Tamil Nadu Panchayat Act and the relevant building and tax rules. It highlighted the absence of specific standards for windmills in the statutory rules and the limitations on levying taxes under Section 172. The court found the impugned orders to be without jurisdiction and allowed the writ petition.
Fact of the Case:
The writ petition challenged an order demanding building plan approval fees, house tax, and professional tax for a windmill erected by the petitioner. The petitioners contended that the panchayat had no jurisdiction to make such demands and had not disclosed the basis for imposing taxes.
Finding of the Court:
The court found that the panchayat had no jurisdiction to demand the fees and taxes as per Section 160 of the Tamil Nadu Panchayat Act. It also highlighted the absence of specific standards for windmills in the statutory rules and the limitations on levying taxes under Section 172.
Issues: The main issue was the jurisdiction of the panchayat to demand building plan approval fees, house tax, and professional tax for the windmill erected by the petitioner.
Ratio Decidendi: The court held that the panchayat had no jurisdiction to make such demands as per Section 160 of the Tamil Nadu Panchayat Act and found the impugned orders to be without jurisdiction.
Final Decision: The writ petition was allowed, and no costs were imposed. The connected miscellaneous petition was closed.
JUDGMENT
(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 4th respondent herein in Letter No.15, dated 17.02.2012 and Letter No. 17, dated 28.02.2012 and to quash the same and consequently, to forbear the respondents herein from, in any manner, demolishing or dismantling or interrupting functioning of the Wind Turbine Generators erected by the 1st petitioner in Kumarettiapuram Village, Kayathar Panchayat Union Limits, Kayathar 628 721, Tuticorin District, pursuant to the proceedings of the 4th respondent herein in Letter No. 17, dated 28.02.2012.)
1. The present writ petition has been filed challenging an order passed by the 4th respondent hearin under which building plan approval fees, house tax and professional tax was demanded from the writ petitioner who has erected a windmill. The petitioners have also challenged the consequential order passed by the second respondent hearin under which the 5th respondent has threatened to remove the constructions, if the amount demanded in the first impugned order, dated 17.02.2012 is not paid, then the constructions would be treated as encroachment and they would be removed.
2. The learned counsel for the petitioners 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 4th respondent addressed a letter on 16.12.2011 that without permission from the panchayat, the 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. Though the petitioner had demanded source of authority and the rights of local authority, the 4th and 5th respondents were reportedly making demands for payment of tax without disclosing the basis of imposition of tax and calculation thereof. Hence, the petitioners had submitted application on 27.12.2011 under RTI act to the 4th respondent requesting him to furnish details with regard to taxes. However, by a reply, dated 17.01.2012, the 4th respondent herein had contended that he is not bound to furnish any information but sent summons for appearance. On failure to appear, the 4th respondent had stated that he would invoke G.O.Ms.No.255, Rural Development and Local Administration Department, dated 13.12.1999 and on the said basis, he will impose property tax upon the writ petitioners.
4. According to the learned Counsel for the writ petitioners, the order impugned in the writ petition, dated 17.02.2012, 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 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.
5. Per contra, learned Addi
