N. Sivadasan v. Divisional Forest Officer, Ranny; Thuravoor Grama Panchayat; Kerala State Pollution Control Board

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 22ND DAY OF MAY 2020 / 1ST JYAISHTA, 1942** ## **WP(C).No.10073 OF 2020** ## **PETITIONER:** **N.SIVADASAN S/O.NATESAN, PUTHENTHARAYIL HOUSE, THIRUMALABHAGOM, CHERTHALA TALUK, ALAPPUZHA DISTRICT - 688528.** **BY ADV. SRI.G.HARIHARAN** ## **RESPONDENTS:** **1 THE DIVISIONAL FOREST OFFICER RANNY, PATHANAMTHITTA DISTRICT - 689672. 2 THE SECRETARY THURAVOOR GRAMA PANCHAYAT, THURAVOOR, CHERTHALA TALUK, ALAPPUZHA DISTRICT - 688 533. 3 KERALA STATE POLLUTION CONTROL BOARD DISTRICT OFFICE, ALAPPUZHA - 688 001.** **SRI.K.SANDESH RAJA, SPL.GP(FOREST), SRI.T.NAVEEN,SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C)No.10073 of 2020 2 ## **ALEXANDER THOMAS, J.** **=========================== W.P(C)No.10073 of 2020 ===========================** Dated this the 22[nd] day of May, 2020 ## **JUDGMENT** The case set up in this Writ Petition (Civil) is as follows: The petitioner is the proprietor of a saw mill which is functioning in the name and style as “Revathy Industries” in Thuravoor, Cherthala Taluk, Alappuzha District from the year 2000 onwards in an extent of 15 cents of land in Survey No.223/31B in Thuravoor South Village in Alappuzha District which is covered with a license issued by the 1[st] respondent which is renewed from time to time and the same is valid upto 03.10.2021. The saw mill is issued with a license from by the Thuravoor Grama Panchayat from the date of functioning i.e. from the year 2000 onwards which is being renewed from time to time. The petitioner had also obtained necessary permission from all the statutory authorities in this regard including the Pollution Control Board which was valid upto 31.12.2019. In this context, it is submitted that the Government of Kerala has issued a G.O. on 19.04.2012 as S.R.O.269/2012 in exercise of powers conferred by Section 39 and 76 of W.P(C)No.10073 of 2020 3 the Kerala Forest Act, 1961, pursuant to a decision of the Apex Court of India in W.P(C)No.202/1995 and 171/1996 whereby this Court was pleased to impose restrictions on the functioning of saw mills in the country. As per the provisions of Rule 5 of the said Rules, no saw mill or other wood based industrial unit established after 30[th] October, 2002 except the saw mill or other wood waste industrial units owned by the government or units exclusively using rubber wood or the small scale furniture unit shall be granted license to function within a radial distance of 5 km. from the nearest boundary of any forest owned by Government and having an extent of about 40 hectares. Under Rule 6 of the above notification, the saw mill or other wood based industrial unit which had been functioning on the date of commencement of above rules under the license issued by a Local SelfGovernment Institution may continue to function till a decision is taken by the authorized officer on the application for license made under Rule 7 of the above notification. The petitioner has approached the 1[st] respondent for renewal of Ext.P-2 license vide application dated 13.02.2019 after paying the requisite fees which was not been allowed or rejected by the 2[nd] respondent and hence the petitioner is entitled to get benefit of deemed license as provided under Sec.232(3) of the Kerala Panchayat Raj Act. A deemed license comes into existence if W.P(C)No.10073 of 2020 4 orders in an application for issuance of renewal of license is not issued within 30 days from the date of submitting the application. However, when the petitioner approached the 2[nd] respondent for renewal of the license for the petitioner 2020-21 the same was not accepted stating that the petitioner has installed a 43 HP motor against the permitted capacity of 14 HP motor for which a notice was issued by the Panchayat bsed on a false complaint filed by a maternal uncle on account of a family feud. It is respectfully submitted that the petitioner has been operating the saw mill only with 16 HP motor as permitted by the Forest Department and allegation made by the complainant in Ext.P-4 communication was false. The petitioner had also filed a reply against Ext.P-4 notice and no orders have been passed thereafter. Under the above circumstances there is no justification on the part of the 2[nd] respondent in refusing to accept fees for the renewal of the license of the saw mill mentioned in Ext.P-2 for the year 2020-21. It is in the light of these averments and contentions, the petitioner has filed the instant Writ Petition (Civil) with the following prayers: - _“(i) Issue a writ of mandamus or any other appropriate writ or order commanding the 2[nd] respondent to take note of Exhibit.P6 consent variation order dated 23.03.2020 issued by the 3[rd] respondent and to renew the license of the petitioners saw mill mentioned in Exhibit.P2._ _And_ - _(ii) To pass such orders or reliefs as this Hon'ble Court deems fit in_ W.P(C)No.10073 of 2020 5 _the interest of justice”_ 2. Heard Sri.G.Hariharan, learned counsel appearing for the petitioner, Sri.K.J.Manuraj, learned Government Pleader appearing for the 1[st] respondent and Sri.T.Naveen, learned Standing Counsel for the Kerala State Pollution Control Board appearing for R-3. In the nature of the orders proposed to be passed in this Writ Petition, notice to R-2 (Thuravoor Grama Panchayat) will stand dispensed with. 3. The complaint of the petitioner is that his application for renewal of the trade license to conduct the saw mill for the year 202021 is not being considered or acted upon by the 2[nd] respondentSecretary, Thuravoor Grama Panchayat and that it adversely affects the rights and interests of the petitioner. It is stated by the petitioner that pursuant to the directions issued by this Court in Ext.P-5 judgment dated 17.02.2020 in W.P(C)No.2842/2020, the 3[rd] respondentEnviornmental Engineer of the District Office of the Kerala State Pollution Control Board has duly conducted inspection of the petitioner's unit and has issued Ext.P-6 consent variation order dated 23.03.2020. Further the petitioner has pointed out that the 2[nd] respondent-Panchayat is taken the stand that the said inspection was conducted by the 3[rd] respondent without notice to the 2[nd] respondent and that in view of the said stand taken by the W.P(C)No.10073 of 2020 6 2[nd] respondent, it appears that the 3[rd] respondent-Environmental Engineer of the Pollution Control Board has decided to conduct a fresh inspection to the petitioner's saw mill and for that purpose, a notice has been issued which has been received by the petitioner. It is stated that the said inspection is stated to be conducted on 25.05.2020 by the 3[rd] respondent, etc. If that be so, the fresh inspection report of the 3[rd] respondent may be required. 4. Accordingly, the following directions and orders are passed: - (i) The Environmental Engineer of the District Office of the 3[rd] respondent-Kerala State Pollution Control Board may conduct a fresh inspection of the petitioner's saw mill and it has to be ensured that such inspection should be with due prior notice to both the petitioner and the 2[nd] respondentSecretary of the Thuravoor Grama Panchayath and thereafter they may draw up their inspection report and may also take decision in the matter of consent to operate the petitioner's unit, without much delay, after granting personal hearing to the above parties. The abovesaid process should be completed by the 3[rd] respondent preferably within three weeks from the date of production of a certified copy of this judgment. W.P(C)No.10073 of 2020 7 - (ii) A copy of the said inspection report and copy of the proceedings issued by the 3[rd] respondent on the matter of consent to the petitioner to operate the unit should be furnished to both the petitioner as well as the 2[nd] respondent-Panchayath. - (iii)After the abovesaid process is completed, the - 2[nd] respondent-Secretary of the Thuravoor Grama Panchayath will immediately take up for consideration the application submitted by the petitioner for renewal of the trade license to conduct his saw mill, which is referred to in Ext.P-4 and should afford a reasonable opportunity of being heard to the petitioner and then pass appropriate orders thereon, in the light of the fresh inspection report and the proceedings issued by the 3[rd] respondent, as aforestated and also in the light of the legal principles laid down by the Full Bench of this Court in the case in _**Tomy Thomas v. State of Kerala**_ [2019 (3) KLT 987 (FB)] and within a period of three weeks from the date of receipt of the inspection report of the 3[rd] respondent as aforestated. W.P(C)No.10073 of 2020 8 - (iv) The petitioner will produce certified copies of this judgment along with a copy of the memorandum of this - W.P(C) along with all the Exhibits to both the 2[nd] and 3[rd] respondents, for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand finally disposed of . ## **Sd/-** **ALEXANDER THOMAS JUDGE** vgd W.P(C)No.10073 of 2020 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LICENCE NO.RNI-581 DATED 04.10.2016 ISSUED BY THE 1ST RESPONDENT WHICH IS VALID UPTO 03.10.2021.** **EXHIBIT P2** **TRUE COPY OF THE LICENCE NO.C480(2084/18) 18-19 DATED 17.04.2018 ISSUED BY THE 2ND RESPONDENT VALID UPTO 31.03.2019.** **EXHIBIT P3 TRUE COPY OF THE INTEGRATED CONSENT DATED 16.06.2016 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD, ALAPPUZHA IN THE NAME OF THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 12.11.2018 ISSUED BY THE 2ND RESPONDENT ADDRESSED TO THE PETITIONER.** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT MADE IN W.P.(C) NO.2842/2020 DATED 17.02.2020.** **EXHIBIT P6 TRUE COPY OF THE CONSENT VARIATION ORDER ISSUED BY THE 3RD RESPONDENT ON 23.03.2020 AS DIRECTED IN EXHIBIT P5 JUDGMENT.**