A.K. Vasu v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **MONDAY, THE 17TH DAY OF JUNE 2013/27TH JYAISHTA 1935** ## **WP(C).No. 29395 of 2012 (Y)** ## **----------------------------** ## **PETITIONER :** ## **--------------------------** **MR.A.K.VASU, S/O.KUNJUKUTTY, PROPRIETOR, 'AYRAYKUNNAM TIMBERS', AYARKUNNAM P.O., KOTTAYAM DISTRICT.** ## **BY ADV. SMT.A.SREEKALA** ## **RESPONDENT(S):** ## **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF FOREST AND WILD LIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHPAURAM-695 001.** **2. DIVISIONAL FOREST OFFICER,KOTTAYAM-686 001.** **3. FOREST RANGE OFFICER,** - **ERUMELY RANGE, ERUMELY P.O., KOTTAYAM DISTRICT-686 509** **4. AYARKUNNAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, AYARKUNNAM P.O., KOTTAYAM-PIN-686 564.** ## ***ADDL.R5 & R6 IMPLEADED** ***R5. PUSHPALATHA PRASAD,W/O.LATE K.R.PRASAD, KALLAMMAKKAL HOUSE,AMAYANNOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK.** ***ADDL. R5 IS IMPLEADED AS PER ORDER DATED 14/12/2012 IN IA.NO. 16817/2012.** - ****R6. THOMMAN MATHEW ,S/O.LATE THOMMAN, AGED 91, KUUNAPPALLIYILAYA,POTTUCHIRAYIL, AYARKUNNAM VILLAGE, KOTTAYAM DISTRICT.** ****ADDL. R6 IS IMPLEADED AS PER ORDER DATED 03.06.2013 IN IA.NO. 7335/2013.** **R1 TO R3 SPL.GOVERNMENT PLEADER SRI.M.A.THOMASKUTTY (FOREST) R4 BY ADV. SRI.K.S.MURALIKRISHNAN NAIR** **SRI.T.M.RAMAN KARTHA** **SRI.MURALEEKRISHNAN ADDL.R5 BY ADV. SRI.MATHEW JOHN SRI.DOMSON J.VATTAKUZHY ADDL.R6 BY ADV. SRI.P.CHANDY JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.29395/2012** **APPENDIX** ## **PETITIONER(S) EXHIBITS** - **EXHIBIT P1. TRUE COPY OF THE SSI REGISTRATION CERTIFICATE AND TYPED COPY DATED 22/6/1987.** - **EXHIBIT P2. TRUE COPY OF THE LICENCE DATED 10/2/2011 ISSUED BY THE DEPARTMENT OF FACTORIES AND BOILERS.** - **EXHIBIT P3. TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE FOREST DEPARTMENT DATED 26/11/1998.** - **EXHIBIT P4. TRUE COPY OF THE APPLICATION FILED BEFORE THE STATE EMPOWERED COMMITTEE FOR WOOD BASED INDUSTRIES, THIRUVANANTHAURAM.** - **EXHIBIT P5. TRUE COPY OF THE RECEIPT DATED 4/10/2011 ISSUED BY THE CHIEF CONSERVATOR OF FORESTS.** - **EXHIBIT P6. TRUE COPY OF THE NOTICE DATED 1/12/2012 ISSUED BY THE SECRETARY OF 4TH RESPONDENT PANCHAYATH TO THE PETITIONER.** - **EXHIBIT P7. TRUE COPY OF THE LETTER DATED 26/11/2012 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT PANCHAYATH.** - **EXHIBIT P8. TRUE COPY OF THE JUDGMENT DATED 25/1/2005 IN OP.NO.25531/2008.** - **EXHIBIT P9. TRUE COPY OF THE REPLY DATED 3/12/2012.** - **EXHIBIT P10. TRUE COPY OF THE NOTICE DATED 3/12/2012 ISSUED BY THE 4TH RESPONDENT.** ## **RESPONDENTS' EXHIBITS :** - **EXHIBIT R5(A) TRUE COPY OF THE ORDER DATED 19/12/2005 IN CMP.NO.10 OF 2003 IN S.A.NO.3 OF 2003** - **EXHIBIT R5(B) TRUE COPY OF THE PLAINT IN O.S.NO.152 OF 2012 SUB COURT, KOTTAYAM** - **EXHIBIT R5(C) TRUE COPY OF THE JUDGMENT DATED 30/10/2012 IN OP(C)NO.3559 OF 2012** - **EXHIBIT R5(D) TRUE COPY OF THE APPLICATION DATED 10/9/2012 BY THE 5TH RESPONDENT BEFORE THE DISTRICT FOREST OFFICER, KOTTAYAM** - **EXHIBIT R5(E) TRUE COPY OF THE APPLICATION DATED 5/12/2012 BY THE PETITIONER BEFORE THE SECRETARY AYARKUNNAM GRAMA PANCHAYATH** ## **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) No. 29395 OF 2012** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of June, 2013 ## **JUDGMENT** The petitioner is stated as aggrieved of Ext.P7 proceedings issued by the fourth respondent, whereby the saw mill run by the petitioner has been ordered to be closed down forthwith, for want of requisite licence/permit from the concerned department. 2. The sequence of events is as follows : The petitioner contends that the concerned saw mill was purchased from the erstwhile owner way back in the late eighties and the petitioner was operating the same. While so, the third respondent issued Ext.P7 letter to the fourth respondent referring to the absence of forest NOC ( which is a pre-requirement to enable a party to run a saw mill and wood based industry in view of the law declared by the Apex Court in **T.N.Godavarman Thirumalpad v. Union of India & Ors.** **( 2002(9) SCALE 81)** . Based on Ext.P7, the fourth respondent issued Ext.P6 order dated 1.12.2012. Thought the petitioner preferred Ext.P9 W.P.(C)No.29395/2012 2 objection before the fourth respondent pointing out that there is no violation of any of the statutory prescription and hence that there is no jurisdiction vested with the fourth respondent, which is only a local authority, the said respondent did not pay any heed to the same and passed Ext.P10, asking to stop the operations forthwith, which made the petitioner to approach this Court by filing the present writ petition. 3. The learned counsel for the petitioner submits that the petitioner had preferred Ext.P4 application before the State Empowered Committee for granting the requisite NOC, which is kept in the cold storage, as a result of which, the petitioner is not able to operate the unit. 4. During the pendency of the proceedings, the additional fifth respondent came to be impleaded as per order dated 14.12.2012 in I.A.No.16817/2012 . With reference to the contents of the counter affidavit filed, the learned counsel for the additional fifth respondent submits that, the petitioner has not approached this Court with clean hands and that quite a lot of suppression of material facts is there. It is pointed out that, the unit was never a proprietorship unit belonging to W.P.(C)No.29395/2012 3 the petitioner and that, it was being run as a 'partnership firm', with the husband of the additional fifth respondent as the Managing partner. The present petitioner is only a partner as discernible from Ext.R5(a) produced along with the impleading petition. The learned counsel submits that several other proceedings are also pending as to the rights and liberties of the parties concerned and that no description as to the correct factual scenario has been given while filing the present writ petition. 5. The learned counsel for the sixth respondent submits that the said respondent is the landlord of the premises and that there is a dispute between the landlord and the tenant . It is stated that necessary proceedings have already been taken by the said respondent to evict the parties, virtually the petitioner as well as the additional fifth respondent. 6. Heard the learned counsel for the fourth respondent Panchayat as well as the learned Special Government Pleader appearing for the respondents 1 and 2. It is brought to the notice of this Court that, by virtue of the relevant rules framed and notified by the W.P.(C)No.29395/2012 4 Government, the competent authority to issue notice as on the date, is the second respondent. As such, the proceedings, if at all any pending consideration before the first respondent or the State Empowered Committee, is required to be transmitted to the second respondent for further consideration. 7. The learned counsel for the additional fifth respondent submits that the additional fifth respondent has already preferred objections before the State Empowered Committee as well as before the local authority, pointing out the facts and figures and objecting the granting of renewal of licence in favour of the petitioner. It is in the said circumstance, that the NOC has not been issued to the petitioner so far. 8. After hearing both the sides, this Court finds that the petitioner can pursue the operation of saw mill, only subject to the procurement of NOC/licence from the competent authority . But, merely on filing an application for granting the same or the pendency of proceedings before the appropriate forum cannot be a green card to run the business. In view of the submission made by the learned 5 W.P.(C)No.29395/2012 Special Government Pleader appearing for the State/Department, that the file has already been transmitted to the second respondent , there will be a direction to the second respondent to consider Ext.P4 application along with the objection stated as preferred by the additional fifth respondent and finalise the same, after giving an opportunity of hearing to them, the fourth respondent/ local authority and the sixth respondent/ landlord. The proceedings as above shall be finalised as expeditiously as possible, at any rate within 'three months' from the date of receipt of a copy of this judgment. The running of the unit shall be kept in abeyance till such time and it will be open for the petitioner to run the unit, depending upon the order to be passed by the second respondent in the proceedings as mentioned above. Writ petition is disposed of. ## **P.R.RAMACHANDRA MENON JUDGE** sv. W.P.(C)No.29395/2012 6