K. Abdul Rahiman v. Secretary to Government, Forest & Wildlife Department & Divisional Forest Officer, Kozhikode Division

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:-** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 20TH DAY OF SEPTEMBER 2017/29TH BHADRA, 19391** ## **W.P(C).No.20284 of 2017 (I)** ## **-------------------------------------** **PETITIONER(S):-** **---------------** **K.ABDUL RAHIMAN, AGED 69 YEARS, S/O ABDULLA HAJI, REYAD PACKERS, RKT XI/374, THUMBAPPADAM, P.O. FEROKE COLLEGE, KOZHIKODE-673632.** **BY ADVS.SRI.NIRMAL. S SMT.VEENA HARI** **RESPONDENT(S):-** **---------------** **1. THE SECRETARY TO GOVERNMENT, FOREST & WILD LIFE DEPARTMENT, SECRETARIAT, TRIVANDRUM-695001.** **2. DIVISIONAL FOREST OFFICER, KOZHIKODE DIVISION, KOZHIKODE-673001.** **R1 & R2 BY SPECIAL GOVERNMENT PLEADER (FOREST) SRI.SANDESH RAJA.K.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P(C).No.20284 of 2017 (I)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:-------------------------** **EXHIBIT P1 TRUE COPY OF THE PASS ISSUED TO THE PETITIONER'S MILL UNDER FORM IV DURING THE YEAR 2000.** **EXHIBIT P2 TRUE COPY OF THE ORDER NO.T2 1594/06 DATED 17.06.2006. EXHIBIT P3 TRUE COPY OF THE LEASE DEED DATED 16.07.2001. EXHIBIT P4 TRUE COPY OF THE TRIPLICATE EVIDENCE PAYMENT OF ESI CONTRIBUTION IN THE NAME OF 'FRIENDS WOOD INDUSTRIES' DATED 13.02.1996.** **EXHIBIT P5 TRUE COPY OF THE RECEIPT FOR PAYMENT OF MONEY FOR AGRICULTURAL INCOME TAX BY SRI.MUHAMMED HAJI. EXHIBIT P6 TRUE COPY OF THE ELECTRICITY BILL DATED 05.04.2011 ISSUED BY THE KSEB. EXHIBIT P7 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER RAMANATTUKARA, DATED 10.04.2006. EXHIBIT P8 TRUE COPY OF THE ENTREPRENEUR'S MEMORANDUM FOR SETTING UP MICRO, SMALL OR MEDIUM ENTERPRISE. EXHIBIT P9 TRUE COPY OF THE VAT REGISTRATION CERTIFICATE OF REGISTRATION DATED 14.05.2007. EXHIBIT P10 TRUE COPY OF THE LICENSE NO.650/05-06 DATED 16.03.2006. EXHIBIT P11 TRUE COPY OF THE APPLICATION TO THE CHIEF FOREST CONSERVATOR DATED 22.09.2010. EXHIBIT P12 TRUE COPY OF THE LETTER FCI-6363/2010 SLC.NO.5300 DATED 16.04.2011. EXHIBIT P13 TRUE COPY OF THE VERIFICATION REPORT DATED 27.04.2011. EXHIBIT P14 TRUE COPY OF THE LETTER DATED 08.07.2011. EXHIBIT P15 TRUE COPY OF THE CONSENT LETTER DATED 22.07.2011. EXHIBIT P16 TRUE COPY OF THE GAZETTE NOTIFICATION G.O.(P)NO.66/2015 F&WLD DATED 09.09.2015. EXHIBIT P17 TRUE COPY OF THE COMMON JUDGMENT IN WP(C) 23566/16 & WP(C)NO.25713/2016 DATED 08.09.2016. EXHIBIT P18 TRUE COPY OF THE ACCOUNT STATEMENT.** **W.P(C).No.20284 of 2017 (I)** ## **- 2 -** **EXHIBIT P19 TRUE COPY OF THE CERTIFICATE OF THE REGISTRATION ISSUED BY THE SALE TAX OFFICER, DATED 06.12.1997. EXHIBIT P20 TRUE COPY OF THE CERTIFICATE DATED 28.04.2011 ISSUED BY THE ASSISTANT COMMISSIONER SPECIAL CIRCLE II, COMMERCIAL TAXES, KOZHIKODE. EXHIBIT P21 TRUE COPY OF THE REPORT OF THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTER, KOZHIKODE DATED 24.10.2016. EXHIBIT P22 TRUE COPY OF THE ORDER NO.G1-104/17 DATED 18.03.2017. EXHIBIT P23 TRUE COPY OF THE REVISION DATED 09.06.2017. EXHIBIT P24 TRUE COPY OF THE LETTER DATED 04.08.2017 ISSUED BY THE RAMANATTUKARA MUNICIPALITY DIRECTING THE PETITIONER TO REMIT THE LICENSE FEE. EXHIBIT P25 TRUE COPY OF THE RECEIPT EVIDENCING PAYMENT OF D & O LICENSE FEE. EXHIBIT P26 TRUE COPY OF THE REGISTER MAINTAINED BY REYAD PACKERS UNDER RULE (II) 5 OF THE CENTRAL SALES TAX (KERALA) RULES, 1957. RESPONDENT(S)' EXHIBITS:-------------------------NIL. Vku/[ true copy ]** ## K. Vinod Chandran, J ------------------------------------W.P.(C).No.20284 of 2017-I ------------------------------------Dated this the 20[th] day of September, 2017 ## **JUDGMENT** The petitioner is before this Court in this second round of litigation; the first having been concluded by Exhibit P17. The petitioner's contention is that there was a sawmill established prior to 2002 and that he should be allowed to continue the same. The learned Special Government Pleader [Forests] even at the earlier instance, opposed the same on the ground that there was nothing to show that there was an establishment of a sawmill prior to 2002, which alone would enable the petitioner to seek for a license from the Authorised Officer as provided in the Kerala Forest (Regulation of Sawmills and Other Wood-based Industrial Units) Rules, 2012 [for brevity “Rules of 2012”]. The petitioner's contentions were also opposed by the land owner and his son, in whose premises the activities were carried on. Negativing the contentions of the landlord this Court, without any observations as to the veracity of the claim raised by the petitioner, directed the Authorised Officer to consider - 2 - WP(C) No.20284 of 2017 the application filed by the petitioner deeming it to be one filed under the Rules of 2012. The rejection made of the application is impugned herein. 2. In Exhibit P17, this Court categorically found that from the documents produced in the said writ petition there was nothing to indicate that the petitioner had established a sawmill prior to 30.10.2002. With respect to the contention of a valid licence having been issued by the local authority, it was found that the petitioner had a packing case unit, which was issued with a licence only in the year 2005-2006. The Municipality, who was also made a party in the earlier writ petition, categorically submitted that prior to or after that there was no licence issued for a sawmill or a packing unit. In fact, the Rules of 2012 specifically provided that any wood based industry which was running with a valid licence from the Local Self Government Institution [for brevity “LSGI”] shall file an application before the Authorised Officer for a licence under the Rules within a period of six months from the date of notification of the Rules. The petitioner had not made such an application despite his assertion that he was carrying on a wood based industry, specifically a sawmill, prior to 2002. - 3 - WP(C) No.20284 of 2017 3. Even then an application was made in the year 2010, which was produced in the earlier writ petition and also herein; as Exhibit P11. The petitioner was permitted to put forth the contentions of an establishment of a sawmill prior to 30.10.2002 before the Authorised Officer. This was also for reason of the deeming provision as contained in subrule (3) of Rule 6 of the Rules of 2012. The deeming provision enabled an application filed before the Empowered Committee or the State Level Committee; for license to continue a wood-based industry which had a license from the LSGI {Rule 6(1)} or for estabishing a new saw-mill or wood-based industry {Rule 6(2)}, to be considered under the Rules of 2012 as one filed under sub-rule (1) or (2). Before such consideration, it was thought fit that the petitioner should approach the Municipality and obtain a (i) permission to establish and (ii) a D&O Licence; after which only the Authorised Officer could consider the application. The petitioner, in that process was also asked to approach the Kerala State Pollution Control Board [for brevity “PCB”] for a Consent to Establish and Operate. The objection raised by the landlords with respect to absence of consent from the landlord was negatived by this Court. This Court, relying on _**Sudhakaran v. Corporation of Trivandrum**_ WP(C) No.20284 of 2017 - 4 - **[2016 (3) KLT 247 (SC)],** found that when a lessee has been validly inducted into a premises and also obtained a licence from the local authority, for renewal or even for a fresh application there should be no insistence for a consent from the landlord. 4. The petitioner then, is said to have obtained a Consent to Operate and Establish from the PCB, which, though not produced before this Court, seems to be correct, since the Municipality has permitted establishment as per Exhibit P24 and has also accepted fees as per Exhibit P25 for D&O Licence for the year 2017-2018. Armed with the same, the petitioner was before the Authorised Officer, who rejected the application as per Exhibit P22. The Authorised Officer found that the application cannot be granted, since there was nothing evidencing the establishment of a sawmill prior to 2002. The petitioner has filed a revision from the aforesaid order; but has argued the case extensively before this Court. 5. The learned Counsel for the petitioner, relying on the various documents produced, would contend that it is undisputed that the petitioner was running a wood based industry prior to 2002, that too a sawmill. The petitioner also would contend that there is no rationale for fixing the date as 30.10.2002; as done in the Rules of WP(C) No.20284 of 2017 - 5 - 2012. The petitioner to advance the challenge against the rules, argues that the restriction would also affect the petitioner’s fundamental right to carry on any trade or occupation as available under Article 19(1)(g) of the Constitution. It is also contended that there was no licensing regime available in the State for sawmills or wood based industries prior to the Rules of 2012 and, hence, there can be no insistence for production of a licence from the LSGI or, as amended, from the Factories and Boilers Department. 6. The learned Special Government Pleader (Forests) however would contend that the specific date fixed is on the basis of the order of the Hon’ble Supreme Court; in compliance of which the Rules of 2012 were brought out. It is also submitted that there was absolutely no evidence produced before the Authorised Officer as to the establishment of the sawmill and the running of it based on a valid licence issued by the LSGI, prior to 2002, as has been specifically mandated in the Rules of 2012. 7. The first question to be addressed is the challenge made against the Rules of 2012, which is on the basis that there is no rationale for the date fixed. The Rules of 2012 was framed on the basis of the order of the Hon’ble Supreme Court on 30.10.2002. The WP(C) No.20284 of 2017 - 6 - petitioner himself has produced the order before this Court. The relevant paragraph is as follows: “No State or Union Territory shall permit any unlicenced saw-mills, veneer, plywood industry to operate and they are directed to close all such unlicenced unit forthwith. No State Government or Union Territory will permit the opening of any saw-mills, veneer or plywood industry without prior permission of the Central Empowered Committee”. Hence, on 30.10.2002, the Hon’ble Supreme Court directed that no State or Union Territory shall permit any unlicenced Sawmills, Veneer, Plywood Industry to operate and to close down all such units forthwith. It is based on this order, in the year 2012 the State of Kerala brought out the aforesaid Rules in which there was a saving clause with respect to the wood based industries established prior to 30.10.2002, taking cue from the order of the Supreme Court. Hence after the Rules of 2012 the applications for license of existing and new saw-mills and wood-based industries were to be considered under the Rules of 2012. The Hon'ble Supreme Court having issued a blanket prohibition by order dated 30.10.2002, no saw mill or wood based industry could have been established after that date. Hence - 7 - WP(C) No.20284 of 2017 the prescription in the Rules of 2012 of two categories for issuance of license: one new industries and the other those issued with a license by the LSGI prior to 2002 and functioning as such. In such circumstance, it cannot be said that 30.10.2002 is a date without any nexus to the object intended by the Rules. The Rules have been framed on the orders of the Hon’ble Supreme Court of that particular date and it is to be remembered that the fundamental right guaranteed under Article 19(1) (g) is tempered and subject to any reasonable restriction as imposed by law under Article 19 (6). 8. The contention with respect to there being no licencing regime available also cannot be accepted. Though there was no licensing regime by the Forest Department of the State; there was a requirement for a licence from the LSGI as per the Municipality and Panchayathj Raj Acts both of the year 1994. It is, hence, the Hon’ble Supreme Court directed that all unlicensed units (valid license being of the LSGI) shall be closed down after 30.10.2002. The Rules of 2012 also refer to the consideration of a sanction for industries commenced prior to 30.10.2002 on the basis of a license issued by the LSGI. The challenge against the Rules of 2012 hence, miserably fails. WP(C) No.20284 of 2017 - 8 - 9. On facts the petitioner's Counsel has taken me through each of the documents produced to establish that there was a saw-mill established prior to 2002. Exhibits P1 and P2 are documents showing that one Reyad Packers has been purchasing rubber wood and other timber from the Forest Sales Depot. They are documents permitting the transport of the logs purchased; which by itself will not prove that the petitioner was running a saw-mill. Exhibit P3 is the licence deed executed by the landlord in favour of the petitioner, which does not speak of a sawmill or a wood based industry and only establish the possession of the property on license. Exhibit P4 of 13.02.1996 is a reciept of contribution under the ESI Act of one Friends Wood Industries Kulangarapadam, Farook College. Exhibit P5 dated 19.03.1983 is a reciept of payment of Central Sales Tax of the very same industry. P6 is the petitioners electricity bill dated 05.04.2011; which proves nothing relevant. Exhibit P7 dated 10.04.2006 is a possession certificate issued by the Village Officer to the landlord of the petitioner. None of these documents establish the petitioner having carried on a sawmill or a wood based industry prior to 30.10.2002. At best Exhibits P1 and P2 show the petitioner to have been a timber merchant The petitioner does not prove his connection - 9 - WP(C) No.20284 of 2017 with Friends Wood Industries and in any event Exhibits P4 and P5 are long prior to the petitioner obtaining possession of the above premises in 2001 as per the license deed Exhibit P3. The Rules of 2012 provide for owning and running a sawmill or wood-based industry on or before 30.10.2002 and it has to be current and in the same location. Any person having at any time held a license at any place cannot raise a claim under the Rules to carry on a like industry, again at any place. Exhibit P7 runs contrary to the contention of the petitioner since the possession certificate has been issued in the year 2006, specifically for getting SSI registration making it amply evident that he had no registration prior to that. 10. The petitioner has produced an Entrepreneur's Memorandum, Exhibit P8, submitted before the District Industries Centre [for brevity “DIC”], which is dated 29.12.2006. The petitioner relies on a declaration made by him in the said document that the date of commencement of production was from 19.09.1998. The petitioner has also obtained a certificate of registration as per Exhibit P9 dated 14.05.2007. The petitioner’s Counsel would take me through Exhibit P21, which is a report of the General Manager, DIC issued on 24.10.2016; wherein it has been stated that on a physical - 10 - WP(C) No.20284 of 2017 inspection the establishment of the unit is said to be on 15.09.1998. Though the General Manager, DIC could have inspected and found the machineries installed in the premises, there could have been no assertion made of the unit having been established on 15.09.1998. Again it has to be noticed that the petitioner obtained possession of the premises only in 2001, by Exhibit P3; belying his contention that an industry was carried on from 1998. It cannot also be ignored that the petitioner himself does not have a case that he carried on a sawmill or a wood based industry with valid license from the LSGI; which is the crucial requirement as per the Rules of 2012. Exhibit P10 is the only valid license from the LSGI, that too for a packing unit, which is valid only from 01.04.2005 to 31.03.2006; insufficient to prove the establishment prior to 30.01.2002. 11. The further contention taken up by the petitioner is based on Exhibit P13, which is a report on inspection conducted by the Forest Department on the basis of Exhibit P11 application made by the petitioner. A reading of Exhibit P13 would indicate that when the unit was inspected in the year 2011, there was an activity of sawing and packing case as also seasoning of wood; which again does not relate back to the time as stipulated in the Rules of 2012. - 11 - WP(C) No.20284 of 2017 As to the working of the unit since 1998 as declared by the petitioner, it has been specifically pointed out in Exhibit P13; at item No.23, that there was no supplementary evidence but for the SSI Registration produced. The petitioner does not produce even the Certificate of Registration of the DIC of the year 1998. 12. As held earlier, it is not clear as to how the General Manager, DIC certified in Exhibit P21 that there was a unit running from 1998 when the registration application itself is seen to have been filed before the DIC on 29.12.2006, received on 14.02.2007, as evidenced from Exhibit P8. Neither is the General Manager competant to make such a certification nor is it relevant under the Rules of 2012. Further, the contention of the petitioner is belied by the specific statement in Exhibit P11 application. Exhibit P11 application is as follows:- **“** 1997_W ùßÏÞÆí ÉÞçAVØí ®K çÉøßW ùÌîV Îø¢ æµÞIáU ²øá ÉÞAßBí çµØí ÈßVNÞà ÏâÃßxí ÕÞ¿µ æµGß¿JßW ¦ø¢ÍßAáµÏáIÞÏß.å1998_W ¥Äßæa **SSI Registration** ®¿áAáµÏᢠøÞÎÈÞGáµø ÉFÞÏJßW ÈßKᢠÎßÜïí È¿Jß æµÞIí çÉÞµÞÈáU 2005_2006 æa èÜØXØí ÜÍßAáµÏᢠæºÏñá. ¥KáÎáÄW èÉïÕáÁí ÈßVNÞÃÕᢠÉÞAßBí çµØí ÈßVNÞÃÕᢠµâ¿ÞæÄ 42 'ùàçØÞÏßBí æÎ×ßX, èÉïÈßBí æÎ×ßX' ÎáÄÜÞÏÕ dÉÕVJߺîá æµÞIßøßAáKá.姿AÞÜJí - 12 - WP(C) No.20284 of 2017 çËÞùØíxí ³ËàØùáæ¿ ÉøßçÖÞÇÈÏíAí ÕßçÇÏÎÞÏçMÞZ **NOC** §ÜïÞÏßøáKá.å ®KÞW ÁßMÞVGíæÎaßW ÈßKᢠÉܵÏᢠØïÞÌᢠµÏxáKÄßÈáU ÉÞØí 1998_W ¥ÈáÕÆߺîßøáKá.å¥ÄßÈÞW ²øá ¥ÈáÕÞÆ ÉdÄÎÞÏß ¥ÄßæÈ µIá æµÞIí ÉÃß È¿Jß çÉÞKá.å **NOC** æÏ Éxß ²øùßÕᢠ§ÄáÕæøÏÞÏß §ÜïÞÏßøáKá.åÉøßçÖÞÇÈÏíAá ÕßçÇÏÎÞÏçMÞÝÞÃí ¥ÄßæÈ Éxß ¥ùßÏáKÄí. ¨ ØíÅÞÉÈJßæa Îá¿AßçÜAí ÍàÎÎÞÏ Äáµ ÌÞCí çÜÞÃáIí.åµâ¿ÞæÄ µáçù ¼àÕÈAøáæ¿Ïᢠ¾B{áç¿Ïᢠ²øá ¼àÕßÄ ÎÞV·ÎÞÃí.å¥ÏÄßÈÞW ¨ ØíÅÞÉÈ¢ ÄáùKí dÉÕVJßAáKÄßÈí çÕIßÏáU ÁßMÞVGáæÎaßæa **NOC** ®dÄÏᢠ**”** . æÉæGKí ÜÍcÎÞAßJøáÕÞX ÕßÈàÄÎÞÏß ¥çÉfßAáKá 13. The statements are to the effect that Reyad Packers was carrying on packing case manufacture with rubber wood from 1997 onwards in a rented building and SSI Registration was taken in 1998 and a licence to run a mill was taken for the year 2005-06. This is not supported by any evidence on record. The only evidence is a D&O Licence of 2005-2006 issued by the Municipality which is not the requirement. Exhibit P17 judgment also found that the said licence was issued only to a packing case manufacturing unit. There was no licence for a sawmill in the year 2005-06. Exhibit P11 further goes on to state that from the date of issuance of licence for 2005-06, in addition to manufacturing of plywood and packing case - 13 - WP(C) No.20284 of 2017 the petitioner has established 42 re-sawing machines and plaining machines and operated the same. When there was an inspection carried on by the Authorised Officer, it was found that there was no NOC and the petitioner had _bona fide_ believed that the pass issued in the year 1998 was sufficient for carrying on such a unit. Definitely the goods transported in 1998 could not have been intended for manufacture in the year 2005-06. In any event, the submission made by the petitioner in Exhibit P11 itself was that a sawmill was established after 2005-06. In such circumstance, this Court does not find any reason to interfere with Exhibit P22 order. The petitioner also refers to the Register of C-Form issued by the Sales Tax Department from 1997 to 2002, which does not establish a sawmill or even a wood based industry but only proves the petitioner having conducted business in timber; which is only trading as distinguished from an industry. 14. The petitioner does not have a consistent case. The petitioner’s application, Exhibit P11, filed even prior to the Rules of 2012 was for a licence for a new sawmill. He only contented that he was carrying on a packing unit and he _bonafide_ believed that the transport permits issued by the Forest Department, enabled a - 14 - WP(C) No.20284 of 2017 sawmill to be carried on. The belief cannot be countenanced as one _bonafide_ arrived at and is contrary to the case of the petitioner that he had a saw mill as on 30.10.2002. If the petitioner’s case was that he had a packing unit and hence was carrying on a wood based industry, then that would come under Category 4 of the Rules of 2012. Sawmill and packing unit comes under different categories as per the Rules of 2012; the former under category 1 and the latter under category 4. The carrying of one industry under a category before 30.10.2002 will not enable a license for another; since the relevant considerations for each category vary drastically. 15. The petitioner does not have any further evidence than that was available when Exhibit P17 was passed. This clinches the issue since this Court in Exhibit P17 had held that the petitioner, then was unable to establish a sawmill having been carried on any time prior to 30.10.2002. The impugned order of the Authorised Officer cannot be faulted for reason of the petitioner having not proved the essential ingredient for issuance of a license under the Rules of 2012; which is the running of a unit on or before 30.10.2002. The petitioner failed miserably to establish that the petitioner had any wood based industry on or before 30.10.2002. - 15 - WP(C) No.20284 of 2017 16. The petitioner seeks for a fresh consideration of a packing unit, atleast; again deeming the application to be one filed for that purpose before the Rules of 2012. This Court cannot permit such a consideration since it would go against the admitted posistion of the petitioner in Ext. P11 that he is seeking a new license for a sawmill. The petitioner’s claim was for a sawmill and not a packing case unit. The petitioner if had been continuously carrying on the packing case business from 1998, or atleast on 30.10.2002; on the enforcement of the Rules he ought to have made an application for licence within six months from the date of the Rules. Further the most significant aspect is that the packing case unit itself only had a license from the LSGI for the year 2005-06. 17. The learned Counsel has also a contention with respect to resolution brought out by the Ministry of Environment, Forest and Climate Change, Government of India dated 22.09.2016 based on the directions issued by the Hon’ble Supreme Court, in _**T.N.Godavarman Thirumulpad v. Union of India**_ reported in **[(2016) 13 SCC 612 (2)],** for which there is no specific pleading in the writ petition. The regulations have been produced across the Bar, which has been perused. This Court does not see any marked - 16 - WP(C) No.20284 of 2017 change from the Rules of 2012. The regulations are emphatically with respect to the constitution of a State Level Committee which prospectively has to be constituted in the manner as laid out in the regulations. But the essential requirement of a license from the Authorised Officer is saved as is seen from Regulation 8 (ii) which gives eminent application of the rules framed by the State Governments. A refusal to approve the grant of license under the regulations, by the State Level Committtee would essentially tie the hands of the Authorised Officer but not vice versa. The Regulations and the Rules of 2012 co-exist, without any repugnancy, as is permissible since Forests come under List III of Schedule VII of the Constitution of India. The writ petition hence is found to be devoid of merit and would stand dismissed. The parties would suffer their respective costs. Sd/K.Vinod Chandran Judge. vku/- [ true copy ]