C. P. Anwar v. The Authorised Officer and Divisional Forest Officer, Kannur District; The Range Forest Officer, Kottiyur, Kannur District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 10TH DAY OF NOVEMBER 2016/19TH KARTHIKA, 1938** ## **WP(C).No. 32824 of 2016 (C)** **----------------------------** ## **PETITIONER(S):** - **------------------------** **C.P.ANWAR, AGED 40 YEARS, S/O HAMEED P.K., NAREYEN PARA, ULIYIL, KANNUR DISTRICT.** **BY ADVS.SRI.SUNIL NAIR PALAKKAT, SRI.K.N.ABHILASH, SRI.M.A.AHAMMAD SAHEER, SMT.K.AASHA.** **RESPONDENT(S):** **------------------------** **1. THE AUTHORISED OFFICER AND DIVISIONAL FOREST OFFICER, KANNUR DISTRICT, KANNUR, PIN-670 001.** **2. THE RANGE FOREST OFFICER, KOTTIYUR, KANNUR DISTRICT, KANNUR, PIN-670 674.** **BY GOVT. PLEADER (FOREST) SRI.SANDESH RAJA.K. GOVT. PLEADER (FOREST) SRI.NAGARAJ NARAYANAN.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 32824 of 2016 (C)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1 TRUE COPY OF THE SALE DEED EXECUTED BY MR.MOHAMMED ASHRAF IN FAVOUR OF THE PETITIONER AND HIS WIFE DATED 12.08.2004 OF THE SRO ULIYIL.** - **EXHIHIBIT P2 TRUE COPY FO THE LICENSE DATED 29.04.2006 ISSUED BY THE SECRETARY OF THE KEZHOOR CHAVASSERY GRAMA PANCHYATH DATED 29.04.2006 IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P3 TRUE COPY OF THE LICENSE DATED 29.02.2016 ISSUED BY THE SECRETARY OF THE KEZHOOR CHAVASSERY GRAMA PANCHAYATH DATED 29.04.2006 IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE NOC ISSUED BY THE 1ST RESPONDENT DATED 07.01.2006.** - **EXHIBIT P5 TRUE COPY OF THE SERVICE RECORDS UNDER THE KERALA SHOPS AND COMMERCIAL ESTABLISHMENT RULES 1961, OF THE EMPLOYEES OF THE PETITIONER.** - **EXHIBIT P6 TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE GENERAL MANAGER, DATED 22.07.1995.** - **EXHIBIT P7 TRUE COPY OF THE CERTIFICATE UNDER FORM AS PER THE PROVISIONS OF FACTORIES ACT DATED 14.11.2012.** - **EXHIBIT P8 TRUE COPY OF THE LICENSE FOR SAW MILL OR OTHER WOOD BASED INDUSTRIES UNIT ISSUED FORM NO.IIA BY THE 1ST RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE NOTICE NO.WI 2065/2016 DATED 15.06.2016 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 03.08.2016.** - **EXHIBIT P11 TRUE COPY OF THE ORDER DATED 01.09.2016 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE PRESCRIPTIONS DATED 18.06.2015 ISSUED BY DR.RAJ NAIR, KMCT INSTITUTE OF NEURO SCIENCE DATED 18.06.2015.** **....2/-** ## **WP(C).No. 32824 of 2016 (C)** **EXHIBIT P13 TRUE COPY OF THE AFFIDAVIT EXECUTED BY THE PETITIONER DATED 18/102016.** **EXHIBIT P14 TRUE COPY OF THE APPLICATION DATED 22/10/2016 SUBMITTED BEFORE THE 1ST RESPONDENT.** **RESPONDENT'S ANNEXURES:-** **ANNEXURE R1A COPY OF THE NOTICE DATED 07/05/2015.** **ANNEXURE R1B COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER ON 18/07/2011. ANNEXURE R1C COPY OF THE VERIFICATION REPORT SIGNED BY THE PETITIONER ON 15/10/2012.** **ANNEXURE R1D COPY OF THE VERIFICATION REPORT SIGNED BY THE PETITIONER ON 08/04/2016.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.32824 of 2016 ----------------------------------------------Dated this the 10[th] day of November, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P11 order passed by the 1[st] respondent dated 01.09.2016, whereby renewal of license to the wood-based Industry conducted by the petitioner is declined, and for other related reliefs. Material facts for the disposal of the writ petition are as follows: 2. Petitioner purchased a saw mill in 2004, evident from Ext.P1 sale deed. Ext.P8 dated 06.03.2013 is the license issued under Kerala Forest (Regulation of Saw Mills and other wood-based Industrial Units) Rules, 2012 [hereinafter called, the Rules, 2012], for running the industry. Petitioner applied for renewal. However, 1[st] respondent issued Ext.P9 notice dated 15.06.2016, seeking explanation in respect of replacement of machineries made by the petitioner in the unit. In Ext.P9, it is stated, petitioner installed BANDSAW-20 H.P., RE-SAW-20 H.P., TROLLY-3 H.P., PLAINER-3 H.P., GRAINTER-1 H.P. machines. But the license was granted in 2013 on the 2 ## **W.P.(C) No.32824 of 2016** basis of the machineries employed by the petitioner like RESAW 20 H.P., RIP SAW-20 H.P., PLAINTER-3 H.P., CUTTER-1 H.P. Therefore, according to the 1[st] respondent, the change of machineries made by the petitioner is against the Saw Mills Rules. 3. Thereupon, petitioner has filed a reply, evident from Ext.P10, wherein, it is contended, petitioner was using BANDSAW machines and it had been omitted to note by the inspection team at the time of granting the license. It is also stated, on receipt of notice, petitioner dismantled BANDSAW machines from the unit. It is the submission of the petitioner, while using BANDSAW machines, wood can be moved without human help, but in RE-SAW machines, manpower is necessary for movement of wood and basically the machineries have no change with respect to the power used etc. etc. Yet another contention advanced by learned counsel for the petitioner is, as per Rule 10(3a) of the Rules, 2012, a personal hearing is necessary while considering the application. However, petitioner was not provided with an opportunity before passing Ext.P11 order. It is also contended, the punishment meted out to the petitioner is against the rule of proportionality **W.P.(C) No.32824 of 2016** 3 enunciated by the Apex Court in ' _**State of U.P. v. Sheo Shanker Lal Srivastava and others'**_ [(2006) 3 SCC 276]. Therefore, it is contended, interference of this Court is warranted to Ext.P11 order, since the same is arbitrary and illegal. 4. First respondent has filed a statement basically contending that, Ext.P11 order was passed after issuing Ext.P9 notice and the petitioner has not appeared before the authorities on 13.07.2016, as directed in Ext.P9. Hence, petitioner was given one more opportunity for giving explanation to Ext.P9, and it was accordingly, Ext.P10 explanation was offered in which petitioner admitted the fact that, at the time of inspection before granting NOC, Bandsaw machine was not there and the explanation offered by the petitioner was that the license issued by the 1[st] respondent in respect of the machine in question was not noticed by the petitioner. It is also stated, from Ext.P8 license, petitioner has been given license for using 44 HP with (1) Re-saw-1 No.20 H.P., (2) Rip Saw-1 No.20 HP (3) Plainer-1 No.3 and (4) Cutter-1 No.1 HP. According to the 1[st] respondent, petitioner has, illegally, in violation of Rule 8 of the Rules, 2012, has 4 **W.P.(C) No.32824 of 2016** converted the same into a saw mill by using the machineries of a saw mill and has also enhanced the machineries without permission of the authorized officer under Rule 12 of the Rules. Therefore, it is the contention of the 1[st] respondent, petitioner has not made out any case warranting interference of this Court in that regard. 5. That apart, it is stated, the Vigilance department has found that petitioner was using 20HP Bandsaw machine and the unit was converted as saw mill instead of Block Board unit, and accordingly notice dated 07.05.2015 was issued to the petitioner, evident from Ext.R1(a). License was provided to the petitioner as per Ext.P8 for wood-based industry category-4, which is evident from Ext.R1(b) application submitted by the petitioner, in which the details of machineries are available. The verification report dated 15.10.2012, apparently on the basis of the application submitted by the petitioner shows the nature of machinery used by the petitioner, and the said verification report is signed by the petitioner also. However, on 10.03.2016, petitioner applied for renewal of his license for Block Board unit, and in the same application also, the details of the machineries provided is that **W.P.(C) No.32824 of 2016** 5 of Annexure R1(c), evident from Ext.R1(d). On verification, it was also found that the unit is functioning as saw mill instead of Block Board unit. According to the 1[st] respondent, as per the license condition No.1(viii) shown in Ext.P8, and Rule 8 (viii) of the Rules, 2012 stipulates that, a saw mill or other wood-based industrial unit licensed for a particular category shall not be converted into any other category without obtaining a fresh license. The capacity of saw mill and other wood-based industrial units shall not be enhanced or any new machinery other than those mentioned in the license shall not be installed without the written permission of the Authorized officer under Rule 12. Therefore, it is the contention of the 1[st] respondent, petitioner _prima facie_ violated the license conditions as well as the provisions of Rules, 2012, thus enabling the petitioner for renewal of license and it was thereupon, Ext.P11 order is issued. 6. Heard learned counsel for the petitioner and the learned Special Government Pleader. Verified the pleadings and the documents on record. 7. The question to be decided is whether any manner of interference is required to Ext.P11 order passed by the 1[st] ## **W.P.(C) No.32824 of 2016** 6 respondent. As discussed above, and as per Ext.P10 explanation offered by the petitioner, one thing is clear, petitioner has changed the nature of the machinery, and other machineries are added after issuance of Ext.P8 license. It is true, as per Rule 12, without permission of the 1[st] respondent, the conditions incorporated to the license cannot be altered. No machineries can be enhanced and added without prior permission of the 1[st] respondent. Such provisions are made in Rules, 2012 to control and regulate the operation of woodbased industries. It goes without saying, the Rules should be strictly implemented in order to avoid misuse of timber. 8. However, fact remains, petitioner was not provided with an opportunity of hearing before passing Ext.P11 order. Contention of the learned counsel for the petitioner is, even though as per Ext.P9 petitioner was directed to appear on 13.07.2016 at 11 a.m., petitioner could not be present. However, Ext.P10 objection/explanation was submitted by the petitioner on 03.08.2016, which was accepted to the files by the 1[st] respondent. It is also submitted by learned counsel, after submission of Ext.P10, petitioner was anticipating an opportunity of hearing to explain the circumstances, to the 1[st] **W.P.(C) No.32824 of 2016** 7 respondent. Without hearing the petitioner, Ext.P11 order is passed by the 1[st] respondent, which, according to the learned counsel, is in violation of the statutory safeguards provided to the petitioner under Rule 10(3a) for a personal hearing. It is also contended by the learned counsel, even if petitioner did not appear as per the directions in Ext.P9, since Ext.P10 is received to the files, it is an admitted fact, it pre-supposes a further notice to the petitioner for hearing in view of the specific stipulation under the Rules for personal hearing. 9. Learned Special Government Pleader appearing for the respondents submitted that petitioner was provided with sufficient opportunity and in Ext.P10, petitioner did not request for a personal hearing, and therefore taking into account the statements made in Ext.P10 only, Ext.P11 order is passed. It is also submitted, even if petitioner is heard, there will not be any change in Ext.P11 order since the petitioner himself has admitted that petitioner has enhanced and changed the machineries in the industry. Therefore, according to the learned Special Government Pleader, there is no logic in contending that since the petitioner was not provided with an opportunity of hearing, Ext.P11 order is illegal. 8 **W.P.(C) No.32824 of 2016** 10. Taking note of the respective submissions made across the Bar, and assimilation of facts and circumstances and the law involved, the core question to be considered is whether denial of opportunity to the petitioner for a personal hearing is material or not. In my considered opinion, when there is a statutory provision enabling a personal hearing, the statutory authority is bound under law to issue a notice inviting petitioner for a personal hearing. Even if the petitioner has not made any request in Ext.P10, the statutory stipulation is to be scrupulously followed by the 1[st] respondent. That apart, it is not a case where the Rules, 2012 is making an absolute prohibition against enhancement of machineries or adding of machineries. Rule 12 only says, before doing so, permission shall be sought for from the competent authority. In that view of the matter, it cannot be said that, consequent to the enhancement or adding of machinery, petitioner has lost his opportunity to secure a permission from the competent authority. 11. Taking note of all these aspects, I am of the considered opinion, since Rule 10(3a) is violated, Ext.P11 order suffers from illegality and arbitrariness. The action of 9 **W.P.(C) No.32824 of 2016** the 1[st] respondent has clearly violated the principles of natural justice also. That apart, petitioner has a case that when the petitioner was notified with respect to the violation of the license conditions, and the provisions of Rules, 2012, petitioner removed the machineries and sought lenient consideration, evident from Ext.P13 affidavit filed before the 1[st] respondent and Ext.P14 letter dated 22.10.2016, whereby it was informed that, petitioner removed the enhanced and added machineries from the unit. 12. All these discussions, lead me to a conclusion, Ext.P11 order passed by the 1[st] respondent is not in accordance with law, and it is illegal and arbitrary. Therefore, I have no hesitation to set aside Ext.P11. Accordingly, I do so. 13. Consequently, there will be a direction to the 1[st] respondent to re-consider Ext.P10 objection submitted by the petitioner after providing an opportunity of hearing to the petitioner by issuing a notice, by registered post, and take a decision in accordance with law, taking note of the subsequent conduct of the petitioner removing the machineries and filing affidavit before the 1[st] respondent to take a lenient view in the matter. The whole exercise shall be completed within a month 10 ## **W.P.(C) No.32824 of 2016** from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/11.11.2016