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 T.R.RAMACHANDRAN NAIR** ## **FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932** ## **OP.No. 3256 of 2003(K)** **-------------------------------** **PETITIONER:** - **-------------------** **M/S. K.M.WOOD WORKS, ODANUR, PARALI P.O., PALAKKAD DIST., REP.BY ITS PROPRIETOR T.K.MADHUSUDANAN, S/O. KESAVAN, THANNIKAD HOUSE, P.O.KINAVALLUR, PARALI, PALAKKAD DISTRICT.** **BY ADV. SRI.K.A.SHAMSUDEEN.** ## **RESPONDENTS:** ## **------------------------** **1. STATE OF KERALA, REP.BY ITS SECRETARY TO THE FOREST DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM** **2. THE DIVISIONAL FORESTS OFFICER, PALAKKAD.** ## ***ADDL.R3 IMPLEADED:** **3. MOHAN ISSAC, S/O. KURUVILA ISSAC, RESIDING AT KANJIRAPUZHA, PALAKKAD DIST.,** ***ADDL.R3. IS IMPLEADED AS PER ORDER DT. 07/12/07 IN I.A.15961/07.** ## ****ADDL.R4 IMPLEADED:** **4. SANDEEP.R., S/O. RAJAN, RESIDING AT PERINGARANKADU HOUSE, MATHUR, PALAKKAD.** ****ADDL.R4 IS IMPLEADED AS PER ORDER DATED 28/05/2010 IN IN I.A. NO. 959/2008.** **R1 & R2 BY SPL.GOVERNMENT PLEADER SRI. SRI. P.M. POULOSE, ADDL.R3 BY ADV. SRI.N.J.JOHNSON, ADDL.R4 BY ADVS. SRI. V. CHITAMBARESH, SRI.T.C.SURESH MENON, SRI. JIBU P. THOMAS, SRI. P.S. APPU.** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P. NO. 3256/2003-K:** **ORDER ON C.M.P. NO. 5756/2003 IN O.P. NO. 3256/2003-K** ## **CLOSED** **28/05/2010. SD/- T.R.RAMACHANDRAN NAIR, JUDGE.** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE POSSESSION CERTIFICATE OBTAINED FROM THE TAHSILDAR, PALAKKAD, WITH RESPECT TO THE LAND IN QUESTION WHERE THE INDUSTRY IS ESTABLISHED.** ## **EXT.P.2: COPY OF THE OWNERSHIP CERTIFICATE WITH RESPECT TO THE BUILDING ISSUED BY THE SECRETARY OF PARALI GRAMA PANCHAYAT.** **EXT.P.3: COPY OF THE RECEIPT EVIDENCING PAYMENT OF TAX BILDING WITH RESPECT TO THE INDUSTRIAL SHED, ISSUED BY THE SECRETARY OF PARALI GRAMA PANCHAYAT.** **EXT.P.4: COPY OF THE RELEVANT PAGES OF THE REGISTRATION CERTIFICATE, ISSUED FROM THE DISTRICT INDUSTRIES CENTRE, PALAKKAD, DTD. 31/07/01.** **EXT.P.5: COPY OF THE RUNNING LICENSE ISSUED WITH RESPECT TO THE PETITIONER INDUSTRY FOR A PERIOD OF 5 YEARS FROM 16/07/2001 TO 31/03/2006 BY THE GRAMA PANCHAYAT DTD. 22/10/02.** ## **EXT.P.6: COPY OF THE LOAN PASS BOOK ISSUED FROM THE BANK.** **EXT.P.7: COPY OF THE BILL DTD. 10/01/02 FOR PURCHASE OF MACHINERY AMOUNTING TO RS.1,99,720/-.** ## **EXT.P.8: COPY OF THE GOVERNMENT ORDER DTD. 15/11/99.** **EXT.P.9: COPY OF THE LETTER ISSUED FROM THE DISTRICT INDUSTRIES CENTRE TO THE R.2. DT.D08/02/01.** **EXT.P.10: COPY OF THE CERTIFICATE AND SKETCH ISSUED BY THE VILLAGE OFFICER DTD. 14/03/01.** **EXT.P.11: COPY OF THE REQUEST SUBMITTED DTD. 20/06/01 TO THE FOREST RANGE OFFICER.** ## **EXT.P.12: COPY OF THE LETTER OF NO OBJECTION ISSUED BY THE R.2. DTD. 24/07/01.** **EXT.P.13: COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN CMP.NO.54275/02 IN O.P. NO. 32145/02.** ## **EXT.P.14: COPY OF THE NOTICE ISSUED BY THE R.2. DTD. 20/11/02.** **O.P. NO. 3256/2003-K:** **EXT.P.15: COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO THE R.2. DTD. 02/12/02.** ## **EXT.P.16: COPY OF THE ORDER ISSUED BY THE R.2. DTD. 15/01/03.** **RESPONDENTS' EXHIBIT:** **EXT.R2.A: COPY OF THE GOVT. ORDER G.O.C.E.(P)NO.44/92/FORESTS DT. 11/11/1992.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **T.R. RAMACHANDRAN NAIR, J.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ O.P. No.3256/2003-K ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 28[th] day of May, 2010** ## **J U D G M E N T** The petitioner, who is running an industrial unit for the manufacture of wooden furniture, has filed this writ petition challenging Ext.P16 order passed by the Divisional Forest Officer, Palakkad cancelling the No Objection Certificate, dated 24/07/2001, granted to the firm. 2. The petitioner started the unit after registering it with the District Industries Centre, which is evidenced by Ext.P4. Ext.P5 is the licence issued by the Panchayat for a period of five years from 16/07/2001 to 31/03/2006. He had availed of various loans from banks etc. for starting the unit. 3. The petitioner, as per the procedure provided in Ext.P8 Government Order, G.O.(P).No.93/99/Forest, dated 15/11/1999, had sought for a No Objection Certificate from the Divisional Forest Officer after completing all the formalities. The Divisional Forest Officer issued a No Objection Certificate as per Ext.P12. 4. It appears that another wood industry, situated nearby to the petitioner's unit, namely, M/s.V.K.V Saw Mill started sending complaints to various authorities, allegedly due to business rivalry, to cancel the No ## O.P. No.3256/2003 -:2:- Objection Certificate granted to the petitioner. This resulted in Ext.P16 order cancelling the No Objection Certificate. 5. Ext.P16 is preceded by Ext.P14 notice to which the petitioner had submitted Ext.P15 explanation also. The respondents have filed a counter affidavit in the matter. In Ext.P14, the reason stated for cancellation is that the unit is functioning within the distance of 5kms. of the vested forest. This finding is confirmed in Ext.P16 also. 6. The learned counsel for the petitioner submitted that there is no bar as far as the location is concerned for the functioning of any such wood based industry within the distance of 5kms. from the forest's boundary. According to him, going by Ext.P8 Government Order, especially, paragraph (3), for any such industry functioning within the distance of 5kms. from the forest boundary, the licence has to be renewed annually and for the said purpose they will have to obtain a No Objection Certificate also. 7. In the counter affidavit filed by the second respondent after referring to various aspects, mention is made to the directions of the Apex Court in **T.M.Godavarman Thirumulpad v. Union of India [AIR 1997 SC 1228]** . It is ## O.P. No.3256/2003 ## -:3:- also mentioned that the Apex Court has issued directions with regard to the grant of permission for opening of Saw Mills, grant of licence etc. by the Central Empowered Committee. The stand taken in the counter affidavit is that unless any modifications are made by the Apex Court, no Saw Mill could function within the distance of 5kms. of the forest area be it reserve forests, vested forests or any other forests. 8. One of the contentions raised by the learned counsel for the petitioner is that the unit is not within 5kms. of the forest area. It is also submitted that a Division Bench of this Court in W.A.No.1593/1999 has considered the matter wherein it has been held that there is no such restriction regarding functioning of such industries within the radius of 5 kms. and, this Court has allowed similar writ petitions also. 9. The issue therefore is whether the Divisional Forest Officer was right in cancelling the No Objection Certificate once issued. Herein, going by the directions issued by the Apex Court in T.M.Godavarman Thirumulpad's case [AIR 1997 SC 1228], it is clear that the State Level Empowered Committee is the authority concerned to issue the No Objection Certificate for wood based industries. The State Level Empowered Committee is functioning in the State ## O.P. No.3256/2003 ## -:4:- for considering the grant of No Objection Certificate to wood based industries. In that view of the matter, the issue requires a reconsideration at the hands of the State Level Empowered Committee. By interim order dated 29/01/2003, this Court had granted an order of stay against the cancellation of petitioner's No Objection Certificate for operation of Saw Mill. This was being extended from time to time and finally, it was extended until further orders on 04/04/2003 and, therefore, the petitioner is running the unit. However, the petitioner will have to approach the State Level Empowered Committee for the issuance of the No Objection Certificate. If the petitioner files an application before the State Level Empowered Committee within a period of three weeks along with a copy of this Judgment, appropriate action as enjoined by law will be taken by the State Level Empowered Committee after conducting due enquiries including the procedure to conduct local inspection. Action will be finalised within a further period of three months untrammelled by the contents of Exts.P14 and P16. The State Level Empowered Committee will consider the matter in accordance with the directions issued by the Apex Court as well as this Court and other Government Orders in the matter. The interim order passed by this Court will O.P. No.3256/2003 -:5:- continue till such orders are passed and communicated to the petitioner. The writ petition is disposed of as above. No costs. **(T.R. Ramachandran Nair, Judge.)** ms O.P. No.3256/2003 -:6:- **T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ O.P. No.3256/2003-K ~~~~~~~~~~~~~~~~~~~~~~~~~~~** **J U D G M E N T** **28[th] day of May, 2010**