M/S. K.M. Wood Works v State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 6TH DAY OF FEBRUARY 2013/17TH MAGHA 1934** ## **WP(C).No. 12196 of 2011 (Y)** **---------------------------------------** **PETITIONER:** - **-------------------** **M/S. K.M.WOOD WORKS, ODANUR, PARALI.P.O., PALAKKAD DISTRICT, REP.BY ITS PROPRIETOR, T.K.MADHUSUDANAN, AGED 43 YEARS, S/O.KESAVAN, THANNIKAD HOUSE, P.O.KINAVALLUR, PARALI, PALAKKAD DISTRICT.** **BY ADVS.SRI.K.A.SHAMSUDEEN, SMT.BHAMA G. NAIR, SRI.V.K.MEETHIANKUNJU, SRI.N.M.SIYAD, SRI.K.J.MOHAMMED ANZAR.** **RESPONDENTS:** **-----------------------** ## **1. STATE OF KERALA,** - **REP.BY THE SECRETARY TO THE FOREST DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIVISIONAL FORESTS OFFICER, PALAKKAD, PIN-678 009.** ## **3. STATE LEVEL COMMITTEE FOR WOOD BASED** - **INDUSTRIES, FOREST DEPARTMENT, FOREST HEAD QUARTERS, VAZHUTHAKKADU, THIRUVANANTHAPURAM, PIN-695 014.** **4. THE CHIEF FOREST CONSERVATOR, SPECIAL AFORESTATION AND NODAL OFFICER, FOREST HEAD QUARTERS, VAZHUTHAKKADU, THIRUVANANTHAPURAM. PIN-695 014.** ## ***ADDL. R.5 IMPLEADED:** ## **5. SANDEEP.R,** **AGED 39 YEARS, S/O. RAJAN, PERINGARAMKADU HOUSE, MATHOOR, PALAKKAD.** ***ADDITIONAL R.5. IMPLEADED AS PER ORDER DTD. 06/02/2012 IN I.A. 1661/12.** **R1 TO R4 BY GOVERNMENT PLEADER SMT. ROSE MICHAEL, ADDL.R5 BY SRI.RENJITH THAMPAN, SENIOR ADVOCATE, ADV. SRI.V.M.KRISHNAKUMAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** **W.P.(C). NO.12196/2011-Y:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P.1: COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE SECRETARY OF PARALI GRAMA PANCHAYATH.** - **EXT.P.2: COPY OF THE RELEVANT PAGES OF THE REGISTRATION CERTIFICATE ISSUED FROM THE DISTRICT INDUSTRIES CENTRE, PALAKKAD DTD. 31/07/2001.** - **EXT.P.3: COPY OF THE RUNNING LICENSE ISSUED TO THE PETITIONER, BY THE GRAMA PANCHAYATH DTD. 22/10/2002.** - **EXT.P.4: COPY OF THE LETTER NO.GCC/111/202 DT.D 11/04/2002 ISSUED BY THE GREEN CHANEL COMMITTEE.** - **EXT.P.5: COPY OF THE LOAN PASS BOOK ISSUED FROM THE PRIMARY COOPERATIVE AGRICULTURAL DEVELOPMENT BANK.** - **EXT.P.6: COPY OF THE BILL DTD. 01/01/2002.** - **EXT.P.7: COPY OF THE GOVERNMENT ORDER DTD. 15/11/1999.** - **EXT.P.8: COPY OF THE LETTER OF NO OBJECTION ISSUED BY THE R.2. DTD. 24/07/2001.** - **EXT.P.9: COPY OF THE NOTICE ISSUED BY THE R.2. DTD. 20/11/2002.** - **EXT.P.10: COPY OF THE EXPLANATIONS DTD. 02/12/2002 SUBMITTED BY THE PETITIONER.** - **EXT.P.11: COPY OF THE ORDER NO.1323/2001 DT. 15/01/2003.** - **EXT.P.12: COPY OF THE JUDGMENT IN O.P.NO.3256/2003 DTD. 28/05/2010.** - **EXT.P.13: COPY OF THE VERIFICATION REPORT DTD. 18/02/2011.** - **EXT.P.14: COPY OF THE VERIFICATION REPORT DTD. 18/02/2011.** - **EXT.P.15: COPY OF THE PROCEEDINGS OF THE R.3. NO.FCI-5530/2010 DTD. 25/03/2011.** - **EXT.P.16: COPY OF THE RECEIPTS EVIDENCING PAYMENT OF THE APPLICATION AND PROCESSING FEE TO THE KSEB DTD. 22/01/2002.** - **EXT.P.17: COPY OF THE RECEIPTS SHOWING REMITTANCE OF APPLICATION FEE AND PROCESSING FEE TO THE KSEB DTD. 11/10/2002.** - **EXT.P.18: COPY OF THE LETTER OF THE STANDING COUNSEL, KSEB, DTD. 08/10/2002 ISSUED TO THE ASSISTNAT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION. COYALMENNAM.** - **EXT.P.19: COPY OF THE RELEVANT PAGES OF THE VOTERS LIST OF G48 PARALI GRAMA PANCHAYATH.** - **EXT.P.20: COPY OF THE MEMORANDUM OF ORIGINAL PETITION NO.32145/2002 ON THE FILES OF THE HON'BLE HIGH COURT OF KERALA.** **W.P.(C).NO.12196/2011-Y:** - **EXT.P.21: COPY OF THE ORDER DTD. 18/11/2002 IN C.M.P.54275/2002 IN O.P.NO.32145/2002 OF THE HON'BLE HIGH COURT OF KERALA.** - **EXT.P.22: COPY OF THE JUDGMENT DTD. 17/02/2003 IN O.P.NO.32145/2002 OF THE HON'BLE HIGH COURT OF KERALA.** ## **RESPONDENTS' EXHIBITS:** **EXT.R5.A: COPY OF THE PROCEEDINGS OF THE DIVISIONAL FOREST OFFICER, PALAKKAD NO.01/1323/2001 DTD. 15/01/2003.** - **EXT.R5.B: COPY OF THE JUDGMENT IN O.P.NO.3256/2003 DTD. 28/05/2010.** **EXT.R5.C: COPY OF THE PROCEEDINGS OF THE CHIEF CONSERVATOR OF FOREST ORDER NO.FC1-5530/2010 DTD. 25/03/2011.** **EXT.R5.D: COPY OF THE REPLY ISSUED BY THE PUBLIC INFORMATION OFFICER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, KOTTAYI TO THIS RESPONDENT.** **EXT.R5.E: COPY OF THE JUDGMENT IN W.A. NO.1892/2007 DTD. 07/09/2007 OF THIS HON'BLE COURT.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Prv.** ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.No.12196 of 2011 ---------------------------------------- Dated this the 6[th] day of February 2013 ## **J U D G M E N T** Petitioner challenges Ext.P15 order passed by the 3[rd] respondent directing the petitioner to dismantle and remove the machinery and equipments installed prior to 30/10/2002. 2. The facts of the case disclose that the petitioner started a unit for manufacturing wooden furniture during 2002 with a licence to run a motor having 7.5 HP. Subsequently he applied for putting up a 16 HP motor for the purpose of a saw mill and permission was granted by the Green Channel Clearance Committee District Industries Centre on 11/04/2002 as per Ext.P4. It is the case of the petitioner that he had acquired all necessary machinery for establishing the saw-mill in addition to furniture unit. But the necessary power connection could not be obtained on account of certain obstructions created by a public interest litigant, who had filed a writ petition before this Court, as a W.P.C.No.12196/2011 2 result of which Kerala State Electricity Board did not provide the necessary power connection. 3. Power connection was given only after 30/10/2002. The relevance of the aforesaid date is on account of the fact that the Supreme Court in **T.N.Godavarman Thirumulpad v. Union of India and Others** [2002 KHC 1450] had directed the respective Governments to form necessary State Level Monitoring Committee to verify the existence of wood based industries and directed closure of wood based industries including saw mills situated within the radius of 5 Kms from the Government forest area except those units which were established and started functioning prior to 30/10/2002. In terms of the said directions, it seems that an enquiry was conducted by the Chief Conservator of Forests and have come to the conclusion that the petitioner was running a wood based industrial unit with plainer - 5 HP and wood lathe - 1.5 HP installed before 30/10/2002 and one band saw - 20 HP, one resaw - 15 HP and Grinder - 1.5 HP were W.P.C.No.12196/2011 3 installed after 30/10/2002. It was also found that the unit was located at an aerial distance of 1.96 Kms from the boundary of Government forest. On that basis, the Chief Conservator of Forests, being the Convener of the State Level Committee directed the petitioner to dismantle and remove the machinery and equipments installed after 30/10/2002. 4. It is the case of the petitioner that he had installed the machineries much prior to 30/10/2002 as he had obtained necessary permission for putting up the 16 HP motor on 11/04/2002 and that he had expended the amounts for purchase of the equipments as per Ext.P6 bill dated 10/01/2002. According to him, there was delay on the part of the KSEB to provide power connection and as a result of which he had to file O.P.No.32145 of 2002 before this Court inter alia contending that a transformer for the power connection was replaced with a new one in October 2002 having a capacity of 250 KV and that in view of the public interest litigation filed by Parali Prakrithi Samrakshana W.P.C.No.12196/2011 4 Samithi as O.P.No.28674/2002 there was delay on the part of the KSEB in providing power connection, which resulted in the delay in obtaining the power connection. 5. According to the petitioner, the entire machinery was installed prior to the cut off date of 30/10/2002, but he was unable to obtain the power connection on account of the delay caused by KSEB, apprehending some adverse orders in the Original Petition filed by way of public interest litigation. Therefore the contention urged by the petitioner is that, it has to be considered that they have set up the industrial unit and would have started functioning the unit even prior to the cut off date of 30/10/2002. 6. The 4[th] respondent has filed a counter affidavit inter alia contending that the State Level Committee had considered the application and other documents submitted by the petitioner and on a joint verification report by the Divisional Forest Officer and the Assistant Conservator of Forests, it was observed that the State Level Committee had to take a decision within the guidelines issued by the Central W.P.C.No.12196/2011 5 Empowered Committee in terms of the restrictions imposed by the Supreme Court in the order dated 30/10/2002 in Civil Appeal No.202 of 1995. It is also mentioned that the unit is within the aerial distance of 1.96 Kms from the boundary of Government forests and that saw mill was established after 30/10/2002 as described in the verification report. 7. Though the petitioner tried to explain that there were two reports as Ext.P13 and P14 which are contradictory, the 4[th] respondent has clarified the same by stating that Ext.P14 is the proper verification report and what is contained in Ext.P13 does not seem to be the correct particulars. Further it is stated that the petitioner has no licence from the Panchayath for running the saw mill attached to the existing furniture unit. 8. Additional 5[th] respondent in his counter affidavit has relied upon Ext.R5(g) to indicate that the additional connected load of 16HP was connected on 07/12/2002. It is their contention that even according to the averments in the writ petition as well as from the documents produced, there W.P.C.No.12196/2011 6 was no power connection for 16 HP motor as on 30/10/2002 and therefore unless the unit was functioning as on 30/10/2002, there was no obligation on the part of the authorities to permit the petitioner to run the unit as such. 9. Heard learned counsel for the petitioner, learned Special Government Pleader, learned counsel for the 4[th] respondent and the learned senior counsel for the additional 5[th] respondent. 10. The question to be considered in the writ petition is whether Ext.P15 is bad in law. During the course of arguments, while trying to establish the fact that the petitioner had established the unit for saw mill prior to 30/10/2002, it is submitted by the learned counsel for the petitioner that by virtue of Notification No.G.O.(P) No.51/2012/F&WLD dated 19/04/2012, the Government had framed rules for the Kerala Forests (Regulation of Saw Mills And Other Wood Based Industries) Rules, 2012 (hereinafter referred as the Rules). According to the learned counsel for the petitioner, the authorised officer under the Rules who is W.P.C.No.12196/2011 7 the Forest Officer authorised by the Government under clause (2) of Rule 3 can consider the application for running a wood based industry as well as the saw mill as defined under Rule 2(h) of the Rules, namely “Large scale furniture unit”. Since the petitioner has set up equipments prior to 30/10/2002 and the delay in obtaining the power connection was only for a few months, there is no reason to reject his application on the ground that there was delay in obtaining the power connection. Therefore, according to the learned counsel for the petitioner, despite Ext.P15, he has to be permitted to approach the Forest Officer for permission to obtain licence under the new Rules. 11. On the other hand, it was contended by the learned Special Government Pleader as well as learned senior counsel appearing for the additional 5[th] respondent that in view of the finding of the State Level Committee that the petitioner had set up the machineries for the saw mill only after 30/10/2002, there is no reason to relegate the petitioner to the Forest Officer as nothing is available to W.P.C.No.12196/2011 8 show that he had established a unit having such a saw mill prior to 30/10/2002. 12. As matters stand now, going by Ext.P15, there is a direction issued by the State Level Monitoring Committee to remove the machinery and equipments installed after 30/10/2002 in the unit. Going by the averments made in Ext.P20 it could be seen that application for power connection was given much earlier to the cut off date on the basis of Ext.P4 issued by the Green Channel Committee of the District Industries Centre, Palakkad and that the transformer was got replaced for giving power connection to the petitioner in October 2002. Until the date of filing the writ petition which is on 30/10/2002, admittedly the power connection was not obtained. This, according to the petitioner, is on account of certain circumstances beyond his control and on account of the pendency of one writ petition. The contention of the petitioner is that it was only on account of negligence on the part of the KSEB officials, that they were not in a position to start the unit and for that W.P.C.No.12196/2011 9 reason they should not be put to difficulties. But the fact remains that the petitioner is bound to comply with the present rules. He has to obtain necessary permission from the authorised officer under the rules. 13. The Government has a contention that the petitioner had no licence from the Panchayath to run the saw mill attached to the existing unit. No materials are now produced to show that the petitioner is having a valid licence to run the saw mill. 14. It is contended by the party respondents that despite the fact that the petitioner is not having a licence, the saw mill is still functioning, which, according to the learned counsel for the petitioner, was on the basis of interim orders passed by this Court. 15. Taking into consideration the over all circumstances of the case, the question to be considered is as to whether the petitioner will get any advantage by applying for licence under the present Rules on account of the fact that there was some delay on the part of the KSEB W.P.C.No.12196/2011 10 in providing power connection for the additional 16 HP motor. This is a fact which requires to be considered as it can be seen from the averments in Ext.P20 that there was delay on the part of the KSEB in providing power connection. Though a writ petition was filed on 30/10/2002, the same was withdrawn as subsequently power connection was provided. Therefore, if the power connection had been obtained by the petitioner prior to 30/10/2002, necessarily he could have continued to run the unit under the provisions of the Rules. 16. Still, the question is whether the petitioner had a valid licence. As already stated, the petitioner has been operating the saw mill on the basis of various interim orders passed by this Court. This again is a matter to be considered taking into consideration the facts and circumstances involved in the matter. This is not a case where the petitioner had started a furniture unit without valid permission. They had also obtained necessary permission to put up a saw mill of 16 HP motor. The W.P.C.No.12196/2011 11 authorities had permitted the grant of additional load of 16 HP on 11/04/2002. The machineries were purchased as evident from Ext.P6. Apparently, the equipments were installed; but the power connection alone was not provided before the cut off date. This, according to me, is a matter which requires consideration, especially in view of the fact that an attempt had been made by the petitioner to obtain the necessary power connection even prior to the cut off date though not knowing about such a situation, and untrammeled by the observations and findings in Ext.P15. 17. In the result, I am of the view that the writ petition can be disposed of as follows: i) The petitioner is permitted to approach the Authorised Officer under the Rules seeking permission for a licence as envisaged under the Rules. The application shall be submitted within a period of one week from today. ii) The authorities concerned shall consider the application to be submitted by the petitioner within a further period of three weeks from the date of receipt of such W.P.C.No.12196/2011 12 application. Until such time, the petitioner shall not operate the saw mill, but the equipments need not be removed. iii) Further operation of the saw mill shall be subject to the result of the order to be passed by the authorised officer. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.12196/2011 13 W.P.C.No.12196/2011 14