Kerala High Court
K.P.Noushad vs State Of Kerala
Author: T.R.Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
THURSDAY, THE 8TH DAY OF NOVEMBER 2012/17TH KARTHIKA 1934
WP(C).No. 20052 of 2012 (F)
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PETITIONER(S):
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K.P.NOUSHAD, AGED 34 YEARS
S/O.KOYAMOOTTY, KONDESHAMPARAMBIL, KONDOTTY P.O.
MALAPPURAM DISTRICT-673638.
BY ADVS.SRI.N.N.SUGUNAPALAN (SR.)
SRI.S.SUJIN
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY
FOREST & WILD LIFE DEPARTMENT, SECRETARIAT
THIRUVANANTHAPURAM. PIN-695001.
2. THE DIVISIONAL FOREST OFFICER
NORTH WYANAD DIVISION, MANANTHAWADY, WYANAD-670645.
3. THE DIVISIONAL FOREST OFFICER
NILAMBUR NORTH DIVISION, NILAMBUR-679329.
R1 -R3 BY GOVERNMENT PLEADER SAREENA GEORGE
BY SRI.M.A.THOMASKUTTY,
SPL. GOVT. PLEADER FOR FOREST DEPARTMENT
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 20052 of 2012 (F)
APPENDIX
PETITIONER(S) EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE ORDER BEARING NO.C-5248/2008 DATED 25-6-
2012 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2: TRUE COPY OF THE ORDER OF R3 BEARING NO.A1 6687/2007
DT.12-2-2009.
EXHIBIT P2A: TRUE COPY OF THE REPORT FILED BY THE DIVISIONAL FOREST
OFFICER, NORTH WYANAD DIVISION.
EXHIBIT P3: TRUE COPY OF THE JUDGMENT IN WPC 26513/2009 DATED 22-10-
2009.
EXHIBIT P4: TRUE COPY OF THE JUDGMENT IN WA 2738/09 DT.3-12-2009 OF
THIS HONOURABLE COURT.
EXHIBIT P4A: TRUE COPY OF THE JUDGMENT RP 124/2010 DT.15-2-2010 OF THIS
HONOURABLE COURT.
EXHIBIT P5: TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 4-12-2009
ISSUED BY R2.
EXHIBIT P6: TRUE COPY OF THE ORDER DATED 10-5-2010 IN SLP(C) 15423/2010
AS AVAILABLE IN THE WEBSITE OF HONOURABLE SUPREME COURT.
(http: court nic.nic in/supremecourt/temp/pc%20702710p.txt).
EXHIBIT P7: TRUE COPY OF THE REPORT OF THE CENTRAL EMPOWERED COMMITTEE
DATED 19TH MARCH 2012.
EXHIBIT P8: COPY OF GOVERNMENT ORDER DATED 03.08.2012 BY WHICH THE STATE
GOVERNMENT ON THE BASIS OF THE REQUEST OF THE CHIEF
CONSERVATOR OF FORESTS ACCORDED SANCTION FOR UNITS STARTED
AFTER 03.10.2002.
EXHIBIT P9: COPY OF THE APPLICATION PREFERRED BY THE PETITIONER
CONSEQUENT TO EXHIBIT P8.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
P.A. TO JUDGE
ds
T.R.RAMACHANDRAN NAIR, J.
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W.P.(C).No. 20052 of 2012
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DATED THIS THE 8TH OF NOVEMBER, 2012
JUDGMENT
The petitioner has been conducting a saw mill in the name and style of "Wood House and Wood Industries". The challenge is against Ext.P1 order passed by the Divisional Forest Officer, viz. the second respondent herein, cancelling the No Objection Certificate issued to the petitioner. Mainly it is contended that the same is issued without giving an opportunity to the petitioner of being heard and therefore the same will violate the principles of natural justice and Articles 14 and 19(1)(g) of the Constitution. It is also the contention of the petitioner that the N.O.C. was issued pursuant to the direction issued by this Court in the judgment in W.P.(C) No.26513/2009 (Ext.P3) which has been confirmed in W.A. No.2738/2009 as well as R.P. No.124/2010 as per Exts.P4 and P4(a). Ext.P5 is the copy of the N.O.C. issued thereafter. The Special Leave Petition filed by the respondents as S.L.P.No.15423/2010 was dismissed by the Apex Court as per Ext.P6 order dated 10.5.2010. Therefore, it is contended that in the light of the inter partes judgment, the order Ext.P1 cannot be supported.
W.P.(C).No.20052/12 -2-
2. The relevant facts with respect to the establishment of the saw mill are the following: It was initially situated in R.S. No.386/5 of Kondotty Village in Ernad Taluk in Malappuram District and in a rented premises and the landlord demanded vacant possession of the same. The petitioner therefore applied to the second respondent for the issuance of NO.C. to shift the saw mill to another premises situated in R.S. No.166/2A/1A/1A of Mallurnad Village in Mananthavady Range of North Wayanad Division. The Divisional Forest Officer, Nilambur forwarded the said application to the Divisional Forest Officer, Mananthavady. After completing the formalities, no objection was granted for shifting the saw mill, as per Ext.P2 order dated 12.2.2009. Thereafter, the petitioner obtained necessary permissions from the Edavaka Grama Panchayat, Fire and Rescue Service and also from the Pollution Control Board. Before starting the same, no objection was sought from the Divisional Forest Officer by filing an application. When delay occurred in the matter, the petitioner approached this Court by filing W.P.(C) No.26513/2009 which was allowed directing the second respondent to issue a No Objection Certificate within one month from the date on which the petitioner produces a certified copy of the judgment. W.A. No.2783/2009 was dismissed with cost of Rs.10,000/-. The review petition filed by the respondents was also dismissed as per W.P.(C).No.20052/12 -3- Ext.P4(a) order and thereafter by Ext.P5 dated 4.12.2009 the No Objection Certificate was issued. As already noticed, the Special Leave Petition was dismissed by the Apex Court as evident from Ext.P6 order.
3. In Ext.P1 order, the reason for cancellation shown is that one Shri Dileep Poolakkot approached the Honourable Supreme Court by filing I.A. Nos.3051-3053/2011 pointing out that the N.O.C. granted to the petitioner herein is in violation of the order passed by the Apex Court dated 29.10.2002 as well as the guidelines and conditions prescribed by the Central Empowered Committee. The Central Empowered Committee submitted a report before the Apex Court on the said petition, stating that all the No Objection Certificates granted in violation of the judgment of the Apex Court dated 29.10.2002 will be cancelled and the units will be closed and said report stand accepted by the Apex Court . The cancellation is thus ordered for the reason that the functioning of the unit is in gross violation of the directions issued by the Apex Court dated 29.10.2002 and the guidelines of the Central Empowered Committee.
4. Heard learned Senior Counsel Shri N.N. Sugunapalan, appearing for the petitioner and Shri M.A. Thomaskutty, learned Special Government Pleader for Forests.
. 5. As directed by this Court, the department has filed a detailed W.P.(C).No.20052/12 -4- statement. It narrates the relevant facts and mainly it is pointed out that the No Objection Certificate was issued in violation of the order passed by the Apex Court dated 29.10.2002. It is averred in para 4 that after the Writ Appeal was dismissed, the Divisional Forest Officer had issued NOC in order to comply with the directions of this Court, but the fact is that as per order dated 29.10.2002 in W.P.(C) No.202/1995 the Hon'ble Supreme Court ordered that "No State Government or Union Territory shall permit opening of any saw mill, veneer, plywood units without prior permission of Central Empowered Committee (CEC)." The petitioner does not possess any valid permission from CEC to open the saw mill. With regard to the petition filed by one Shri Dileep Poolakott as I.A.Nos.3051-3053 of 2011 before the Apex Court, the following aspects have been stated further in para 4:
"Thereafter Mr. Dileep Poolakkot filed I.A.No.3051-3053 of 2011 before Hon'ble Supreme Court of India against the wood based industries working in alleged violation of Apex Court's order in W.P.(C) No.202/95. The Central Empowered Committee constituted under Hon'ble Supreme Court of India submitted a report before the Hon'ble Supreme Court in I.A.No.3051-3053 of 2011 filed by Dileep Poolakkot regarding the wood based industries working in alleged violation of Apex Court's order in Kerala. The NOC issued by the concerned officers of the Forest W.P.(C).No.20052/12 -5- Department should be reviewed in a time bound manner by the State level Committee and NOCs found to have been issued in violation of the Hon'ble Supreme Court order dated 29.10.2002 should be immediately cancelled. Such wood based industries as well as units working without a valid NOC and license issued by the competent authority should be closed immediately. The recommendations have been accepted by the Hon'ble Supreme Court. Moreover, the Law Officer, office of the Resident Commissioner, Govt. of Kerala in his letter No.747/RC.Law/2002 dated 11.05.2012 to Chief Conservator of Forest (Special Afforestation and Nodal Officer) informed as follows: "The Standing Counsel reports that on 09.05.2012 the Hon'ble Supreme Court directed that, the State Government should implement the recommendation of the Central Empowered Committee (Central Empowered Committee Report dated 19.03.2012) contained in para 10 at the earliest and had also directed to file a compliance affidavit." This was communicated by the Principal Chief Conservator of Forests and Head of Forest Force as per D.O. Letter No.FC.4-5740/2011 dated 19.05.2012 to DFO, North Wayanad that the Apex Court have accepted the recommendation of the Central Empowered Committee and directed the State to implement the recommendations. Also it was directed that, a report of the compliance is also to be submitted to the Apex Court immediately. Subsequently, the department have clearly examined and verified that the functioning of the 'Wood House and Wood Industries" is illegal and against the directions of the Hon'ble Supreme Court. Hence the notice No.C.5248/08 dated W.P.(C).No.20052/12 -6- 25.06.2012 was issued to stop the functioning of such illegal wood based industrial unit."
It is further stated in para 5 of the statement that Ext.P1 order was issued based on the Apex Court direction in I.A. Nos.3051-3053/2011. Therein, a direction was issued that the State Government should implement the recommendation of the Central Empowered Committee in their Report dated 19.3.2012 contained in para 10 at the earliest and had also directed to file a compliance affidavit. The order was issued after examining the fact that the functioning of the 'Wood House and Wood Industries' is against the orders of the Hon'ble Supreme Court and CEC report dated 19.3.2012.
6. Therefore, reasons shown are mainly that there is violation of the order passed by the Apex Court dated 29.10.2002 as well as the requirement of prior permission of the Central Empowered Committee. The petitioner never submitted an application to get prior permission from the Central Empowered Committee to function the saw mill and in the light of the order passed by the Apex Court, the recommendations of the Central Empowered Committee will have to be implemented.
7. The main contention raised by the petitioner in the writ petition is that the judgments of this Court have become final and therefore the cancellation ordered as per Ext.P1 is bad in law. Before going into the said W.P.(C).No.20052/12 -7- contention, the contents of the report of the Central Empowered Committee are also to be referred to. The same is produced as Ext.P7. Para 3 refers to the issues raised in the I.A. filed by Shri Dileep Poolakkot. Sub para (iii) is the one concerning the petitioner herein. It is pointed out mainly that the petitioner has established a unit without obtaining prior permission from CEC. There are at least 34 other wood based industries which are operating in Wayanad District and which do not have any licence issued by the competent authority and/or No Objection Certificate issued by the Forest Department and/or permission of the CEC. It is further alleged therein, as seen from internal page 39 of the writ petition that in the counter affidavit dated 16.10.2009 filed in W.P.(C) No.26513/2009 by the Divisional Forest Officer, North Wayanad Division, it was not disclosed that the NOC issued in favour of the petitioner has already been cancelled by the issuing authority itself as it was found to have been issued in violation of the Apex Court's order dated 30.10.2002. The only point raised in the counter affidavit was that the NOC was not being issued because one Mr. K.J. Joseph has complained that the location of the saw mill is within 5 kms from the nearby forest. This resulted in the High Court passing the judgment dated 22.10.2009 directing issuance of NOC. Even though in the review petition dated 7.1.2010 various details regarding violation of the W.P.(C).No.20052/12 -8- Apex Court order regarding establishment of wood based industries have been stated, they were not placed before the High Court leading to the issuance of directions further.
8. The submissions made by the State of Kerala on the allegations in the I.A. are contained in para 4 of the report and the relevant paragraph concerning the petitioner herein is sub para (x). The observations and recommendations of the Central Empowered Committee are contained in para 5 and as far as the petitioner herein is concerned, the recommendations have been made in para 8. It is pointed out that: "(a) the NOC was issued in violation of the Hon'ble Supreme Court's order dated 30.10.2002; (b) even after the cancellation of the original NOC, it was renewed on the basis of the earlier NOC (which was already cancelled); and (c) the NOC for relocation of the unit to another district was issued." It is also stated that the crucial aspects were not brought to the notice of this Court by the officers concerned and it was only in the review petition filed after the dismissal of the Writ Appeal that the crucial information that the NOC was illegally issued and transferred and it involved violation of the directions of the Apex Court, was placed before this Court. The final recommendations are contained in para 10 and sub para (ii) reads as follows: W.P.(C).No.20052/12 -9-
"(ii) The NOCs issued by the concerned officers of the Forest Department should be reviewed in a time bound manner by the SLC and the NOCs found to have been issued in violation of this Hon'ble Court's order dated 30.10.2002 should be immediately cancelled. Such wood based industries as well as the units working without a valid NOC and/or licence issued by the competent authority should be closed immediately."
9. Learned Government Pleader has produced for perusal the order passed by the Apex Court in I.A. Nos.3051-3053 in W.P.(C) No.202/1995 (T.N. Godavarman Thirumulpad v. Union of India and others). Item No.308 is I.A.Nos.3051-3053 & 3423 wherein the order concerning this case was issued, which reads as follows:
"Mr. Ramesh Babu M.R., learned counsel appearing for the State of Kerala assures this Court that the recommendations of the C.E.C. will be implemented by the State within a period of three months from today.
List after vacation."
10. Even though learned Senior Counsel for the petitioner, Shri N.N. Sugunapalan submitted that the judgments of this Court which have become final, according to the petitioner, cannot lead to an order passed like the one herein, it can be seen that the basic issue is regarding the absence of prior permission by the C.E.C. The said issue was not considered in the three judgments of this Court, viz. W.P.(C) No.26513/2009, Ext.P4 W.P.(C).No.20052/12 -10- judgment in W.A. No.2738/2009 and Ext.P4(a) order in R.P. No.124/2010. The order Ext.P1 is therefore issued in the light of the recommendation of the C.E.C. contained in Ext.P7 which pointed out about the violations of the Apex Court's order and the absence of the recommendation of the C.E.C. The report of the C.E.C. has been accepted by the Apex Court and follow up actions were taken accordingly.
11. Therefore, even though it is pointed out by the learned Senior Counsel for the petitioner that the order passed without notice to the petitioner, cannot be treated as valid, I cannot agree. The petitioner has no case that he has obtained any prior permission from the C.E.C. In Ext.P3 and P4 judgments, this Court found that the NOC was not being issued in the light of the objection raised by a retired Tahsildar, which cannot be justified. Therefore, obviously the issue whether the petitioner is having prior permission from the CEC, has not come up for consideration before this Court. In the light of the above, merely for complying with the principles of natural justice, the order Ext.P1 need not be quashed, as the basic conditions remained unfulfilled by the petitioner.
12. Along with I.A. No.12699/2012 the petitioner has produced Ext.P8 Government Order dated 3.8.2012 and a fresh application by the petitioner in the form prescribed, as Ext.P9. It is prayed that without W.P.(C).No.20052/12 -11- prejudice to the contentions of the petitioner, Ext.P9 may be directed to be considered. Ext.P8 order is one concerning the realisation of One Time Payment for units established on or after 30.10.2002. But in the light of the various aspects leading to the issuance of Ext.P1, based on the Apex Court's order, this Court will not be justified in issuing a direction as sought for.
For all these reasons, the writ petition fails and the same is dismissed. No costs.
(T.R.RAMACHANDRAN NAIR, JUDGE) kav/