HaneeFa.P.K. v. Divisional Forest Officer Kannur and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY ,THE 23RD DAY OF OCTOBER 2018 / 1ST KARTHIKA, 1940** **WP(C).No. 24659 of 2018** ## **PETITIONER/S:** **HANEEFA.P.K** **S/O. MAMMOOTTY HAJI, AGED 45 YEARS, FOUZYA MANZIL, KURICHIYIL P.O., THALASSERY, KANNUR - 670102, MANAGING PARTNER, SHEMY TIMBERS, DOOR NO.13/116, GOODS SHED ROAD, THALASSERY, KANNUR - 670101.** **BY ADVS. SRI.K.GOPALAKRISHNA KURUP (SR.) SMT.DEEPTHI S.MENON SRI.K.SURESH** ## **RESPONDENT/S:** - **1 DIVISIONAL FOREST OFFICER KANNUR, OFFICE OF THE DIVISIONAL FOREST OFFICER, KANNUR.** - **2 FOREST RANGE OFFICER KOTTIYUR, OFFICE OF THE FOREST RANGE OFFICER, KOTTIYUR.** - **3 JOINT DIRECTOR OF FACTORIES AND BOILERS KOZHIKODE, OFFICE OF THE JOINT DIRECTOR OF FACTORIES AND BOILERS, KOZHIKODE.** - **4 ENVIRONMENTAL ENGINEER KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, KANNUR.** - **5 THALASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, THALASSERY MUNICIPAL OFFICE, THALASSERY.** - **6 ASSISTANT ENGINEER ELECTRICAL SECTION, KERALA STATE ELECTRICITY** 2 _**WP(C).24659/18**_ **BOARD LTD., MINI VYDYUTHI BHAVANAM, M.G. ROAD, THALASSERY (PO), PIN - 670101.** **7 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695001.** **BY ADVS. SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD** ## **OTHER PRESENT:** **SPL.GP SANDESH RAJA.K** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 3.10.2018, THE COURT ON 23.10.2018 DELIVERED THE FOLLOWING:** ## **ANU SIVARAMAN, J.** ## **-----------------------------------------------** ## **W.P(C).No. 24659 of 2018** ## **----------------------------------------------Dated this the 23[rd] day of October, 2018** ## **JUDGMENT** The petitioner has approached this Court seeking the following reliefs: - _“i. to call for the records leading to Exhibits P9, P10 and P14 and quash the same by the issue of a writ of certiorari, direction or order._ - _ii. to direct respondent Nos. 1 and 7 to permit the petitioner to submit an application in the prescribed form along with the prescribed fee and to consider the same and decide the bonafides and admissibility of such application and to grant a license for the continued functioning of the saw mill run by the petitioner if the petitioner is otherwise eligible and satisfies the condition for grant of a license._ - _iii. to permit the petitioner to continue to function his saw mill till a decision is taken by the respondents 1 and 7 on his application for license on the strength of the licenses issued by respondents 3 to 5.”_ 2. Heard the learned Senior Counsel appearing for the petitioner and the learned Special Government Pleader. 3. The petitioner contends that the saw mill, which is presently being run by the petitioner, started functioning in 1957. In 1998, a partnership was constituted for running of the 4 _**WP(C).24659/18**_ mill. From 1999 onwards, the petitioner had licence issued by the 3[rd] respondent. These facts are substantiated by the documents. It is stated that a no objection certificate was issued by the 1[st] respondent after due verification. The verification report submitted is produced as Exhibit P6. It is stated that the NOC issued to the petitioner was valid till 2.9.2009. It is stated that a notice had been issued by the 2[nd] respondent requiring him to produce all records with regard to his mill by Exhibit P7 dated 19.2.2009. The application submitted by the petitioner for NOC on 28.10.1998 is also produced as Exhibit P8. It is stated that the Kerala Forest (Regulation of Saw Mills and Wood Based Industrial Units) Rules, 2012 (for short, 'the Rules') was promulgated on 19.4.2012. Rule 3 thereof provided that a person owning or running a saw mill on before 30.10.2002 shall apply for a licence under the Rules within a period of six months from the date of commencement of the Rules. The Rule was later amended on 9.9.2015 adding a provision that a person failing to apply for a licence within the prescribed period of six months can make an application within six months from the date of commencement of the amended Rules. It is stated that the procedure for applying for licence is provided in Rule 6 of the Rules. 4. It is the contention of the learned Senior Counsel appearing for the petitioner that though a period was provided for in Rule 3(3) for saw mills which were functioning before 30.10.2002 to make an application, there was no prohibition in the said Rules for entertaining an application 5 _**WP(C).24659/18**_ for licence in respect of a saw mill functioning prior to 30.10.2002 on the ground that such an application was not submitted on or before 8.3.2016. The learned Senior Counsel appearing for the petitioner would submit that the petitioner had been required to close down the saw mill. The Municipality, by Exhibit P9 letter, required the petitioner to produce NOC of the Forest Department immediately, failing which the licence granted by the Municipality would be revoked. It is stated that thereafter, the petitioner had made an application for issuance of NOC, but the said application has been rejected on the ground that it is not filed before 8.3.2016. Exhibit P17 order of rejection is under challenge. 5. The contention of the learned Senior Counsel is that the Rules do not prohibit the consideration of an application made after 8.3.2016 and such condition, if any, in the Rules is an unreasonable restriction on the right of the petitioner to engage in an occupation. It is stated that since the petitioner's saw mill had been functioning with all requisite licences from 1957 onwards, the stand taken by the respondents that in the absence of an application for saw mill licence made in terms of the 2012 Rules within the time prescribed, the petitioner is not entitled to such NOC cannot be sustained. It is submitted by the learned Senior Counsel appearing for the petitioner that Exhibit P7 would show that there was an application for further NOC preferred before the respondents pending consideration and such application should be considered as an application in terms of Rule 6(3) of the Rules. 6 _**WP(C).24659/18**_ ## 6. A detailed statement has been filed by the 1[st] respondent. It is stated in paragraphs 5 and 6 of the said statement as follows: _“5. It is submitted that as per Rule 3(3) and 6(1) of the Kerala Forest (Regulation of Sawmills and other Wood based Industrial Units) Rules 2012, any person running a sawmill or a wood based industrial unit under a license obtained from Local Self Government Institution as on 30.10.2002, shall, within a period of six months from the date of commencement of the Rules, apply to the Authorized Officer in Form 1A for obtaining a license. The Rule was amended with effect from 9.9.2015, adding a provision that if any person fails to apply for the license within the prescribed period, he shall apply for a licence within a period of six months from the date of commencement of Amended Rules. Enough time has been given to apply for forest licence by the Government. But the petitioner has not applied for the forest licence in the prescribed time limit, as other mill owners applied. As per Rule 21 of the above Rule, the authorized officer shall close down any sawmill or wood based industrial units which has been functioning without a valid licence. So the petitioner's argument is baseless._ _6. It is submitted that the petitioner has not submitted application for forest licence, as per Kerala Forest (Regulation of Sawmills and other Wood based Industrial Units) Rules within the stipulated time. As per Rule No.21 of the Rules, the authorized officer shall close down any sawmills or wood based industrial units which has been functioning without a valid licence.”_ 7. The only question which arises for consideration is whether the rejection of the petitioner's application for NOC on the ground that no application had been made before 8.3.2016 is sustainable or not. The learned Senior Counsel appearing for the petitioner would rely on the decisions reported in _**Binoy Viswam v. Union of India and Others**_ 7 _**WP(C).24659/18**_ [(2017)7 SCC 59] and _**Shivashakty Sugars Limited v. Shree Renuka Sugar Limited and Others**_ [(2017)7 SCC 729] to contend that the requirement that an application should be made within a specified date cannot be a ground for declining of applications made after the date. 8. I have considered the contentions advanced. It is pertinent to note that no challenge is raised as against the provisions of the Rules in this writ petition. The contention of the petitioner is that the provision in Rule 3(3) of the Rules only provides for the making of an application within time and it cannot interdict the consideration of an application made thereafter. In view of the fact that the petitioner's sawmill has been continuously in operation from 1957 onwards, it is contended that he is entitled to all the benefits of sawmill which was in operation on or before 30.10.2002. 9. Rule 3 of the Kerala Forest (Regulation of Saw Mills and Wood Based Industrial Units) Rules, 2012 reads as follows: _“_ _**3. Restriction on Establishment of Sawmill and other Wood Based Industrial Units.-** (1) No person shall, after the date of commencement of these rules establish or operate a sawmill or any other wood based industrial unit without obtaining a licence from the Authorized Officer under these Rules._ _(2) The Government may by notification authorise a Forest Officer not below the rank of Assistant Conservator of Forests having territorial jurisdiction over the area to be Authorised Officer for the purpose of these Rules._ _(3) Every person owning or running a sawmill or any other wood based industrial unit on or before 30[th] October, 2002 shall apply for a licence under these rules within a period of six months from the date_ 8 _**WP(C).24659/18**_ _of commencement of these rules.”_ By 2015 amendment, the following proviso was inserted. _“Provided that any person owning or running a saw mill or other wood based industrial unit on or before the 30[th] October, 2002, who failed to apply for a licence within six months from the date of commencement of these rules due to inadvertent omission or any other reasonable cause, shall apply for a licence under these rules within a period of six months from the date of commencement of the Kerala Forest (Regulation of Sawmills and Other Wood-based Industrial Units) Amendment Rules, 2015.”_ 10. The State Level Committee and the Central Empowered Committee have been defined in the Rules. Going by the Rules, persons who are owning or running a saw mill on or before 30.10.2002 are given certain preferential benefits by the provisions of the Rules. Going by the terms of the Rules, no saw mill or other wood-based industrial unit can function within the prohibited distance from any forest. Sawmills functioning as on 30.10.2002 are given an exemption from this requirement also. The forms for licences in respect of sawmills functioning as on 30.10.2002 and applications made thereafter are also different. Rule 6 provides for a further extension of time for making an application under the Rules. Rule 6(1A) of the Rules reads as under: ## _“_ _**6. Procedure for obtaining licence.-** (1)...._ _(1A) Any person running a sawmill or other wood-based industrial unit under a licence obtained from a Local Self Government Institution or a licence obtained from the Department of Factories and Boilers, Government of Kerala, on or before the 30[th] October, 2002, who failed to apply for a licence under these rules within a period of six months from the date of commencement of_ 9 _**WP(C).24659/18**_ _these rules for the reasons stated in the proviso to sub-rule (3) of rule 3 shall, within a period of six months from the date of commencement of the Kerala Forest (Regulation of Sawmills and Other wood-based Industrial Units) Amendment Rules, 2015, apply to the Authorised Officer through the Chairperson of the Advisory Committee in Form 1A for obtaining a licence under rule 7.”_ Rule 6(3) provides that an application submitted to the Central Empowered Committee or to the State Level Committee for no objection certificate shall be deemed to be an application for licence submitted under sub-rule (1) or sub-rule (2). 11. The initial contention of the learned Senior Counsel appearing for the petitioner is that there is no embargo on making an application after the dates prescribed in Rule 3(3) and Rule 6(1A) respectively. The Rules provide for stringent restrictions on the right to establish saw mills or other wood-based industrial units in the State. Special provisions are made with regard to the saw mills which were in existence as on 30.10.2002. What this Court essentially considering is a right of the petitioner to the preferential claim as a saw mill which was in existence as on the said date. The provision in the Rules is that in case an application is preferred as stated in the Rules within the prescribed time limit, then the sawmill in question would be entitled to the relaxations as a sawmill which was in existence before 30.10.2002. While it may be true that the petitioner can make an application even thereafter, the provisions of Rules 3, 4 and 6 would make it clear that such an application which is not preferred within the time as provided in the Rules 10 _**WP(C).24659/18**_ for the purpose will have to be considered as an application for a fresh licence and the benefits available to a saw mill which was in existence on or before 30.10.2002 cannot be claimed in case the application is belated. This Court, therefore, cannot agree with the contention that there is any illegality in the provisions of the Rules which provide for a cut off date for an application to be made for availing special privileges. 12. The further contention of the petitioner that Exhibit P7 would show that there was an application pending before the Central Empowered Committee or the State Level Committee for NOC also cannot be accepted, since Exhibit P7 is only a notice to produce the documents to show that the sawmill is functioning with required licences. In the above view of the matter, I am of the opinion that the application preferred by the petitioner long after 8.3.2016 cannot be considered as an application for licence in terms of Rule 3(3) of the Rules. The application can only be treated as an application for fresh licence. In case the petitioner makes an application for fresh licence in Form No.1B in terms of Rule 6(2) of the Rules, the said application can be taken up, considered by the respondents in accordance with law and appropriate orders passed thereon. It is made clear that the application will be considered only as an application for a fresh licence in terms of the Rules. Since there was an interim order of status quo in operation, the interim order shall remain in force till orders are passed by the 1[st] respondent on the fresh application to be preferred by the petitioner. 11 _**WP(C).24659/18**_ Necessary steps shall be completed within a period of one month from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** _vgs_ 12 _**WP(C).24659/18**_ ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE LICENSE ISSUED BY THE**| |---|---| ||**SECRETARY, THALASSERY MUNICIPALITY TO THE**| ||**PETITIONER DATED 20.6.2016.**| |**EXHIBIT P2**|**TRUE COPY OF THE CONSENT TO OPERATE DATED**| ||**18.4.2017 ISSUED BY THE 4TH RESPONDENT TO**| ||**THE PETITIONER.**| |**EXHIBIT P3**|**TRUE COPY OF THE LICENSE IN FORM NO.4 ISSUED**| ||**BY THE 3RD RESPONDENT ON 14.12.2017 TO THE**| ||**PETITIONER.**| |**EXHIBIT P4**|**TRUE COPY OF THE LETTER DATED 21.6.2018 FROM**| ||**THE 6TH RESPONDENT SHOWING THE DETAILS OF**| ||**ELECTRIC CONNECTION GIVEN TO THE**| ||**PETITIONER'S SAW MILL.**| |**EXHIBIT P5**|**TRUE COPY OF THE LICENSE ISSUED TO THE**| ||**PETITIONER BY THE 3RD RESPONDENT ON**| ||**7.2.2006.**| |**EXHIBIT P6**|**TRUE COPY OF THE REPORT SUBMITTED BY THE**| ||**FOREST RANGE OFFICER, KOTTIYUR TO THE**| ||**DIVISIONAL FOREST OFFICER, KANNUR, DATED**| ||**3.12.2003.**| |**EXHIBIT P7**|**TRUE COPY OF THE NOTICE DATED 19.2.2009**| ||**ISSUED FROM THE OFFICE OF THE FOREST RANGE**| ||**OFFICER, FLYING SQUAD RANGE, KANNUR TO THE**| ||**PETITIONER.**| |**EXHIBIT P8**|**TRUE COPY OF THE APPLICATION DATED**| ||**28.10.1998 SUBMITTED BY THE PETITIONER TO**| ||**THE 1ST RESPONDENT.**| |**EXHIBIT P9**|**TRUE COPY OF THE LETTER DATED 2.7.2018**| ||**ISSUED BY THE THALASSERY MUNICIPALITY TO THE**| ||**PETITIONER.**| |**EXHIBIT P10**|**TRUE COPY OF THE LETTER DATED 26.6.2018**| ||**RECEIVED BY THE PETITIONER FROM THE 6TH**| ||**RESPONDENT.**| 13 _**WP(C).24659/18**_ |**EXHIBIT P11**|**TRUE COPY OF THE DATED 6.7.2018 ISSUED BY**| |---|---| ||**THE 2ND RESPONDENT TO THE PETITIONER.**| |**EXHIBIT P12**|**TRUE COPY OF THE LETTER SUBMITTED BY THE**| ||**PETITIONER BEFORE THE 1ST RESPONDENT ON**| ||**30.6.2018.**| |**EXHIBIT P13**|**TRUE COPY OF THE PETITION FILED BEFORE THE**| ||**2ND RESPONDENT BY THE PETITIONER DATED NIL.**| |**EXHIBIT P14**|**TRUE COPY OF THE LETTER DATED 7.7.2018**| ||**ISSUED BY THE 1ST RESPONDENT TO THE**| ||**PETITIONER.**|