P.V. Mustafa v. Ramanattukara Municipality and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 8TH DAY OF SEPTEMBER 2016/17TH BHADRA, 1938** ## **WP(C).No. 23566 of 2016 (U)** **----------------------------** **PETITIONER(S): ----------------------** **P.V. MUSTAFA, S/O P.V. MUHAMMED HAJI, P.V'S HOUSE, KULANGARAPADAM, FAROOK COLLEGE P.O., KARINGALLAYI, KOZHIKODE DISTRICT.** ## **BY ADV. SRI.BABU S. NAIR.** **RESPONDENT(S):** - **--------------------------** **1. THE RAMANATTUKARA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, RAMANATTUKARA, KOZHIKODE DISTRICT, PIN-673 633.** **2. THE ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, KOZHIKODE, PIN-673 001.** **3. THE DIVISIONAL FOREST OFFICER, MATHOTTAM, KOZHIKODE DISTRICT-673 020.** **4. THE SUB INSPECTOR OF POLICE, FEROKE POLICE STATION, KOZHIKODE DISTRICT-673 631.** **5. KOCHALAN ABDU RAHIMAN, S/O ABDULLA HAJI, DHALINTAKOM HOUSE, KASABA AMSOM, KALATHINKUNNU, VELLAYIL, KOZHIKODE DISTRICT, PIN-673 019.** - **R1 BY ADV. SRI.P.C.SASIDHARAN, SC. R2 BY ADV. SRI. T.NAVEEN SC. R3 & R4 BY SPL. GOVT. PLEADER SRI.SANDESH RAJA.K. SR. GOVT. PLEADER SRI.SURIN GEORGE IPE.** - **R5 BY ADVS. SMT.VEENA HARI, SRI.NIRMAL. S.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-09-2016, ALONG WITH WP(C).NO.25713 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** - rs. **WP(C).No. 23566 of 2016 (U)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.980/2015 OF THE MUNSIFF COURT, KOZHIKODE.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION SUBMITTED BY THE FATHER OF THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 21.12.2015,** **EXHIBIT P3 TRUE COPY OF THE REPLY GIVEN BY THE 1ST RESPONDENT DATED 18.01.2016.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R5A COPY OF THE LICENSE TO RUN THE MILL ISSUED BY THE 1ST RESPONDENT DATED 16/03/2006.** **EXT.R5B COPY OF THE APPLICATION DATED 22/09/2010 SUBMITTED BY THIS RESPONDENT.** **EXT.R5C COPY OF THE ONLINE INDUSTRY REGISTRATION RECEIPT DATED 28/07/2016.** **EXT.R5D COPY OF THE REPRESENTATION DATED 23/07/2016 SUBMITTED BY THIS RESPONDENT.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **K. VINOD CHANDRAN, J.** **---------------------------------W.P(C). Nos.23566-U & 25713-L of 2016 ---------------------------------Dated this the 8[th] day of September, 2016** ## **JUDGMENT** The petitioners in the above writ petitions are concerned with the operation of a sawmill, which is conducted by the petitioner in WP(C) No.25713 of 2016. The petitioner in WP(C) No.23566 of 2016 is the son of the owner of the premises, in which such sawmill is carried on. The other petitioner is the 5[th] respondent and his father; the owner of the property has also been impleaded as the addl 6[th] respondent in WP (C) No.25713 of 2016.The parties are referred to from their status in WP(C) No.25713 of 2016. _W.P.(C) Nos.23566-U & 25713-L of 2016_ **2** 2. The petitioner submits that he had been carrying on the sawmill in the premises from 2001 onward, when the premises was obtained as per Ext.P13 agreement of license. Even prior to that, he had been carrying on the said business as per Ext.P14 registration issued by the District Industries Centre. The petitioner has filed Ext.P9 application for renewal of the D&O licence, which has not been considered yet by the Municipality. The petitioner also has applied for fresh D&O licence, as a abundant caution; is the argument. The petitioner relies on Ext.P3, a license issued by the Panchayat for the year 2005-2006 to contend that he had been continuously operating the sawmill with valid license and the renewal, now applied for, has to be considered by the 1[st] respondent _W.P.(C) Nos.23566-U & 25713-L of 2016_ **3** Secretary. 3. The addl. respondents 5 & 6 contend that the petitioner could not have continued a sawmill after the Kerala Forest (Regulation of Sawmill and Other Wood-based Industrial Unit) Rules, 2012 [for brevity, the Rules of 2012], came into force. The said rules stipulated that any sawmill operating prior to 30/10/2002 ought to have filed an application within six months of the bringing into force of the Rules of 2012 or within six months from the proviso, which was introduced by amendment of the year 2015. The petitioner has not filed such an application nor also established the sawmill prior to 30/10/2002; argues the party respondents. The application said to have been filed in the year 2010 cannot be said to be one _W.P.(C) Nos.23566-U & 25713-L of 2016_ **4** filed in accordance with the Rules of 2012, is the contention. 4. I have heard the learned Special Government Pleader [Forest], also, who appeared for the Department. He submits categorically that there is nothing to show that the petitioner's unit was conducted prior to 30/10/2002 and in such circumstance, the petitioner would have to make a fresh application under Rule 3(1) of the Rules of 2012 for establishment and operation of a sawmill before the Authorised Officer under the Rules of 2012. The application said to have been filed in 2010 has been responded to by Ext.P7 dated 08/07/2011, wherein it was categorically brought to the notice of the petitioner that there was nothing to indicate _W.P.(C) Nos.23566-U & 25713-L of 2016_ **5** that the unit was operated prior to 30/10/2002. There were also other discrepancies noticed in the application, which has to be rectified before an application is deemed to be one under sub-Rule (3) of Rule 6, which again would depend upon the petitioner establishing that the sawmill was operated prior to 30/10/2012. 5. The documents pointed out by the petitioner being Exts.P1,P13,P14 & P15 does not at all indicate that the petitioner had been carrying on a sawmill at any time prior to 30/10/2002. The petitioner, going by the above documents, can only be said to have been dealing in wood products. There is nothing to indicate that any manufacturing process or a sawmill was conducted in the premises, that too prior to 30/10/2002. Ext.P13 deed also speaks **6** _W.P.(C) Nos.23566-U & 25713-L of 2016_ of a license being issued for carrying on a business and not a sawmill. As far as the records produced before this Court, this Court is unable to find that there is a sawmill conducted prior to 30/10/2002. However, this will not preclude the petitioner from establishing before the Authorised Officer that there was a sawmill conducted prior to 30/10/2002, in which event, the deeming provision under sub-Rule (3) of Rule 6 of the Rules of 2012 can be availed of by the petitioner to seek a consideration of the application under the Rules, for a No Objection Certificate. 6. Be that as it may, consideration under the Rules of 2012 could only be made if the Municipality issues a license. For which, the _W.P.(C) Nos.23566-U & 25713-L of 2016_ **7** petitioner's contention is that he has filed a renewal application. The Municipality has gone on record with a statement, which clearly indicates that but for a D&O license issued in 2005-2006, there is no license issued prior or after that year. The petitioner also does not have any contention to the contrary, since the D&O licence issued is only Ext.P3 for the year 2005-2006. 7. In such circumstances, it cannot be said that the petitioner's application for renewal ought to be considered by the Municipality. The learned counsel would refer to the decision of the Hon'ble Supreme Court in **Sudhakaran v. Corporation of Trivandrum [2016 (3) KLT 247 (SC)],** wherein it was categorically held that the consent of the landlord is applicable only _W.P.(C) Nos.23566-U & 25713-L of 2016_ **8** when a person intends to obtain a license for the first time. Here, obviously there was a license issued to the petitioner in the year 2005-2006, which was not renewed in any of the successive years. Exhibit P3 license is also one permitting the manufacture of wooden packing cases and plywood cases and not a sawmill as intended by the petitioner now. In such circumstance, though a consent may not be required, the petitioner would have to make an application for establishment of an Industry, as is provided under Section 492 of the Kerala Municipality Act, 1994 and the Rules of 2011, if notified. The petitioner hence would be entitled to file an application for establishing an Industry as provided under Section 492, upon which, the 1[st] respondent _W.P.(C) Nos.23566-U & 25713-L of 2016_ **9** Secretary shall expeditiously consider the same, but however without insisting for the consent of the landlord, since the landlord had admittedly leased out the premises to the petitioner, in which; at least in the year 2005-2006 there was a sawmill carried on and there is also a Rent Control Petition pending before the Rent Control Court between the landlord and the tenant. 8. The consent of the landlord once having been issued, cannot be insisted at every renewal; lest the landlord use such requirement as a leverage to harass the tenant **[Sudhakaran v. Corporation of Trivandrum (2016 (3) KLT 247 (SC)]** . The petitioner also has filed an application before the Pollution Control Board evidenced by Ext.P8 and the same has to be _W.P.(C) Nos.23566-U & 25713-L of 2016_ **10** first expedited, to enable the Municipality to consider the application for establishment of the Industry and the 3[rd] respondent would expedite the consideration of Ext.P8 application after conducting an inspection of the premises with notice to the petitioner and the Municipality. 9. If such consent is received from the Pollution Control Board, the Municipality will not insist on a No Objection Certificate from the Authorised Officer under the Rules of 2012, since only on production of the D&O licence could the No Objection Certificate be considered under the Rules. After the D&O license is obtained, the petitioner could very well approach the Authorised Officer under the Rules of 2012 either to expedite consideration **11** _W.P.(C) Nos.23566-U & 25713-L of 2016_ of the application already filed before the State Level Committee, on which verification report has been issued by the Department as per Exts.P6 & P7, subject to the condition that the petitioner establishes before the Authorised Officer that there was a sawmill conducted as on 30/10/2002 or if the petitioner fails to establish the same, the petitioner could as well avail of sub-Rule(1) of Rule 3 of the Rules of 2012 to seek for a No Objection Certificate for establishment of a new woodbased Industry. 10. The petitioner would, on moving the Authorised Officer, be also obliged to provide the entire details as asked for in Ext.P7. The 3[rd] respondent shall expedite the consideration of consent to establish and finalise the same _W.P.(C) Nos.23566-U & 25713-L of 2016_ **12** within two months from the date of receipt of a certified copy of this judgment. With the above observations, both the writ petitions are disposed of; making it clear that this Court has not issued any positive direction to any of the authorities to grant or issue consent or license and the direction is only to make a consideration; in accordance with law. No costs. Sd/- ## **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/08/09/16