W.P.(C) Nos. 25, 26 & 27 of 2010-C

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931** **WP(C).No. 25 of 2010(C)** **-----------------------------------** ## **PETITIONER(S):** **------------------------** **M/S. NIRAVATH INDUSTRIES, MINI INDUSTRIAL ESTATE, KATTAPPANA, REP. BY ITS PROPRIETOR, A.M. VARGHESE.** **BY ADVS. MR.T.RAMPRASAD UNNI, MR.PREM NAVAZ.** ## **RESPONDENT(S):** **---------------------------** **1. THE DIVISIONAL FOREST OFFICER, KOTTAYAM,** **2. KATTAPPANA GRAMA PANCHAYATH, REP. BY SPECIAL GR. SECRETARY.** ## ***ADDL.R3 IS IMPLEADED:** **R3. RUBY ABRAHAM, VEZHAMBATHOTTATHIL, KATTAPPANA SOUTH P.O., IDUKKI.** ## **(*ADDL.R3 IS IMPLEADED AS PER ORDER DTD. 11/01/2010 IN I.A.NO.290/10)** ## **R1 BY GOVERNMENT PLEADER MR. K. SANIL KUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/01/2010 ALONG WITH WPC.NO.26 OF 2010 AND WPC. NO. 27 OF 2010, THE COURT ON 20/01/2010 DELIVERED THE FOLLOWING:** ## **Kss** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos.25, 26 and 27 of 2010-C** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 20th day of January, 2010.** ## **JUDGMENT** These writ petitions raise a common question and therefore they are disposed of by a common judgment. The question is whether the Divisional Forest Officer is competent to entertain an application for No Objection Certificate from the petitioners in the light of the directions issued by the Apex Court in **T.N. Godavarman Thirumulpad v. Union of India** (2002 (9) SCALE ). 2. I will deal with the contentions of the parties as pleaded in W.P. (C) No.25/2010 since the legal contentions are the same. The petitioner therein is running an industry known as Niravath Industries in the Kattappana Mini Industrial Estate from the year 1979. It is a sawmill in which timber is used for various purposes. It is pointed out that the same is situated 8 k.ms. away from forest limit. The petitioner was granted No Objection Certificate by the Divisional Forest Officer, Kottayam as per its proceedings dated 22.6.2009. The second respondent Grama Panchayat has also issued a licence which is valid upto 31.3.2010. By Ext.P3 order the Divisional Forest Officer cancelled the No Objection Certificate without wpc 25, 26 & 27 /2010 2 issuing any notice to the petitioner. The second respondent Panchayat has thereafter cancelled the licence issued to the petitioner, as per Ext.P5. 3. It is the case of the petitioner that the unit was functioning from 1979 onwards. It was allowed to operate in the light of Ext.P1 judgment in O.P.No.3427/1999 and the cancellation of the No Objection Certificate is without any justification. It is further pointed out that at any rate, the petitioner was entitled to be issued notice in the matter. Ext.P4 is the copy of the No Objection Certificate issued by the Divisional Forest Officer after due enquiry. 4. As directed by this Court, a statement has been filed by the first respondent. The additional third respondent has also filed a counter affidavit. 5. Heard learned Senior Counsel Shri K.Ramakumar appearing for the petitioners, learned Govt. Pleader and Shri M.C. John, learned counsel for the additional third respondent. 6. The question turns round on the directions issued by the Apex Court in **Godavarman Thirumulpad’s case** (2002 (9) SCALE 81) and the procedure prescribed for grant of No Objection Certificate in terms of the directions therein which are covered by various Govt. Orders issued in the matter. wpc 25, 26 & 27 /2010 3 7. The contention raised by the respondents is that in the light of the directions issued by the Apex Court the Divisional Forest Officer is not competent to issue any No Objection Certificate for the unit after 30.10.2002. The Divisional Forest Officers are only competent to issue the certificates if the licence was valid as on 30.10.2002, i.e. the date of the judgment of the Apex Court. Ext.P4 was issued by the Divisional Forest Officer without any authority and therefore it was cancelled. The petitioners have got a remedy to approach the State level committee duly authorized by the Central Committee for issuance of No Objection Certificate as they are the only authority in this regard. 8. Even though it is contended by the learned Senior Counsel for the petitioner that the unit was having NOC prior to 30.10.2002, it turned out that the NOC which was granted in 1991 was not renewed thereafter after its expiry during 1992. 9. Along with the statement filed by the Divisional Forest Officer the application of the petitioner to grant the NOC has been produced as Ext.R1 (a). It is only an application for issuance of NOC afresh and not for renewal of an existing one. The application is dated 27.5.2009. It is therefore clear that the unit was not having NOC as on 30.10.2002, the crucial date. Ext.R1(b) is the direction issued by the Chief Conservator of Forests with wpc 25, 26 & 27 /2010 4 reference to the procedure for issuance of NOC, etc. It is provided therein that the Divisional Forest Officers can renew the licence in respect of the units which are functioning as on 30.10.2002 and which have got valid licence and NOC as on that date. It is further stated that if the NOC has not been renewed at the relevant time, such units will have to submit application for a fresh NOC to the State level committee. 10. It is clear that the application for NOC was submitted subsequent to the directions issued by the Chief Conservator of Forests, as per Ext.R3 (d) dated 27.6.2008. Herein, the NOC originally granted in 1991, had expired and it was not renewed. Ext.R1(a) is the application submitted for getting fresh NOC. This could have been considered only by the State level committee. In the statement filed by the first respondent, it is further pointed out that the State Level Committee is duly authorized by the Central Empowered Committee by its order dated 29.4.2008 to receive applications for starting wood based industries in the State of Kerala. In fact, this is the reason pointed out by the Divisional Forest Officer in Ext.P3 to cancel the NOC. It is stated in Ext.P3 that the petitioner has to approach the Central Empowered Committee/State Empowered Committee for getting a fresh NOC. 11. Learned Senior Counsel appearing for the petitioner relied upon wpc 25, 26 & 27 /2010 5 the judgment of a Division Bench of this Court in W.A. No.1593/1999 and connected cases, which is produced as Ext.P6, in support of the plea that the Divisional Forest Officers are competent in the matter of issuance of NOC. A reading of the judgment shows that the issue considered therein was different. Therein, the question arose whether in respect of units functioning within a distance of 5 k.m. from the reserve forest, NOC can be renewed or not. The Division Bench was of the view that there is no positive direction by the Supreme Court not to renew the licence of the saw mills which are already in existence within a distance of 5 kms. radius from a reserve forest. The Supreme Court has only directed that no fresh licence be issued within a radius of 5 kms. from the reserve forest, vested forest etc. It was also held that going by the decision of the Apex Court in **Jawaharlal Sharma and another v. Divisional Forest Officer** (2002 (3) SCC 42), the issue of fresh licence and renewal application has to be treated differently. 12. The question arises herein is totally different and therefore the said judgment will not help the petitioner. As far as this case is concerned, the objection is not on the basis of want of 5 kms. distance from the forest. It is clear from Ext.P4 order that the unit is situated about 6 kms. away from the reserve forest. wpc 25, 26 & 27 /2010 6 13. Shri M.C. John, learned counsel appearing for the additional third respondent submitted that in the light of Exts.R3(a) to R3(f), the petitioner cannot now contend for the position that NOC was not required prior to 30.10.2002. It is submitted that going by Ext.R3(a), it is clear that by various Govt. Orders, it was made compulsory that no wood based industry shall be permitted to function without getting NOC from the Forest Department. Ext.R3(a) is dated 15.11.1999. It is therefore submitted that the action taken by the Divisional Forest Officer is perfectly justified. The unit can function only if NOC is issued by the State Level Committee which is absent herein. It is also submitted that even if the contention that the impugned order was passed without any notice is accepted, still it can be legally sustained as the NOC was issued by the Divisional Forest Officer for which he was not empowered. In the light of the factual position emerging in this case, the petitioner’s unit cannot be allowed to function till the State Level Committee considers and passes orders on his application. 14. A reading of Ext.R3(a) order shows that as per Govt. Order dated 11.11.1992 it was specified that No Objection Certificate of the Divisional Forest Officer has to be obtained for starting any industry based on forest produce within a radius of 5 kms. from reserve forest. It is also specified that without NOC from the Divisional Forest Officer, no other wpc 25, 26 & 27 /2010 7 Government department or local authority shall issue permission. In Ext.R3(a), it is further specified that once NOC was issued, for renewal of the same for a period of five years, a fresh NOC by the department is not required. Ext.R3(b) is the order containing the directions issued by the Apex Court dated 29.10.2002 in **Godavarman Thirumulpad’s case** (supra). Ext.R3(c) contains the directions issued by the Central Empowered Committee directing each State to constitute State Level Empowered Committee and to deal with matters to be considered by each State Level Committee. The State Level Committee is empowered to deal with pre 30.10.2002 saw mill cases. Ext.R3(d) is the Circular dated 27.6.2008 issued by the Chief Conservator of Forests directing all the Forest Conservators and Divisional Forest Officers directing that instructions may be issued to all the applicants who submit application for NOC to function any wood based industry, to submit the same before the Chairman/Convener, State Level Committee and no application shall be received by the Divisional Forest Officers. Ext.R3(f) is the copy of the order dated 19.12.2003 issued by the Apex Court in respect of a matter wherein suo motu contempt action was taken by a Divisional Forest Officer for modification of the order dated 29/30/10/2002. 15. It is therefore clear from the various documents mentioned above wpc 25, 26 & 27 /2010 8 that only the State Level Committee is empowered to deal with the application for NOC in cases where the same is submitted after 30.10.2002. In respect of those applications, the Divisional Forest Officer cannot issue the certificate which is clear from Ext.R3(d) Circular. The direction issued by the Apex Court in para 43 of the judgment in **Godavarman Thirumulpad’s case** (supra) is to the following effect: “No State or Union Territory shall permit any unlicensed saw-mills, veneer, plywood industry to operate and they are directed to close all such unlicensed units 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. The Chief Secretary of each State will ensure strict compliance of this direction. Thre shall also be no relaxation of rules with regard to the grant of licence without previous concurrence of the Central Empowered Committee.” 16. Shri K. Ramakumar, learned Senior Counsel for the petitioner wanted to draw a distinction by pointing out that as far as the petitioners’ units are concerned, they are having licence issued by various statutory authorities prior to 30.10.2002 and they are not new units which started functioning after 30.10.2002 and therefore the directions of the Apex Court will not apply to them. wpc 25, 26 & 27 /2010 9 17. The said contention cannot be accepted in the light of the various procedures prescribed, as discussed above. It cannot be disputed that the units ought to have obtained NOC prior to 30.10.2002. As on 30.10.2002 the unit operated by the petitioner was not having NOC. The application filed by the petitioner is for issuance of NOC afresh and not for renewal. In that view of the matter, the said contention cannot be accepted. 18. The question whether the impugned order is bad for violation of the principles of natural justice, is the other moot question raised by the learned Senior Counsel for the petitioners. It is true that the petitioner was not issued notice and no hearing was offered prior to the cancellation of the NOC. The crucial aspect herein is that the NOC was cancelled on the ground that the Divisional Forest Officer was not having power to issue the same as per the proceedings Ext.P4. Since it is issued by an authority who has no power or authority, the same is liable to be cancelled. 19. It is now well settled by various decisions of the Apex Court that if on admitted facts, only one conclusion is possible, the court need not issue a futile writ, on the plea of violation of natural justice. The said principle is evident from the decision of the Apex Court in **S.L. Kapoor v. Jagmohan** {(1980) 4 SCC 379) which is reiterated in **M.C. Mehta v.** wpc 25, 26 & 27 /2010 10 **Union of India** (JT 1999 (5) SC 114). Herein, even if the order is bad for violation of the principles of natural justice, this Court, in the light of the decision of the Apex Court in **Godavarman Thirumulpad’s case** (supra) cannot direct the Divisional Forest Officer to reconsider the matter as it is the State Level Committee alone which has got jurisdiction. Therefore, this Court need not issue a futile writ. 20. Learned Senior Counsel then submitted that the petitioner will submit appropriate application before the State Level Committee and till a decision is taken, the unit may be allowed to function, especially since the workers will be affected. This is opposed by the learned Govt. Pleader and the learned counsel for additional third respondent by submitting that as there is no valid NOC, the unit cannot be allowed to function. In the light of the directions issued by the Apex Court, there cannot be any doubt that without a valid NOC the licences issued by the other departments and local authority will not help the petitioner to run the unit. As on today, the NOC stands cancelled. The directions issued by the Apex Court being mandatory, this Court cannot therefore, in these proceedings allow the units to function till the State Level Committee chooses to grant the NOC. 21. In W.P.(C) No.26/2010, Ext.P1 is the copy of the No Objection Certificate dated 13.5.2009 and Ext.P2 is the licence issued by the wpc 25, 26 & 27 /2010 11 Panchayat dated 25.9.2009. Ext.P3 is the order passed by the Divisional Forest Officer with a direction to the petitioner to approach the Central Empowered Committee/State Empowered Committee for getting fresh NOC. Similar contentions have been raised therein also. 22. Ext.R1(a) produced herein is the application submitted by the petitioner on 17.12.2008 for issuance of NOC afresh. It is not for renewal of the NOC issued already. In this case also the unit in question was not having NOC prior to 30.10.2002. 23. In W.P.(C) NO.27/2010, Ext.P1 is the copy of the NOC dated 10.6.2009 and Ext.P2 is the copy of the licence dated 31.7.2009 issued by the Panchayat. Ext.P3 is the order cancelling the NOC issued by the Divisional Forest Officer on the same ground. Ext.R1(a) is the application filed by the petitioner seeking NOC. The same is an application for issuance of a fresh NOC. There is no document to show that as on 30.10.2002 the petitioner was having a valid NOC. 24. In all these three cases it is clear that as on 30.10.2002 the petitioners were not having NOC issued by the Divisional Forest Officer. Only if there were valid NOC as on the said date, they are entitled for a renewal by the Divisional Forest Officer. In these circumstances, the proceedings granting NOC by the Divisional Forest Officer cannot be wpc 25, 26 & 27 /2010 12 supported, for want of jurisdiction. The applications could have been considered only by the State Level Committee, in the light of the direction issued by the Apex Court and the circular issued by the Chief Conservator of Forests which is produced as Ext.R3(d) in W.P.(C) No.25/2010. 25. The competent authority being the State Level Committee , it is up to them to consider the applications. Learned Govt. Pleader submitted that if the petitioners make an application immediately, the same will be considered and will be disposed of within five months. 26. Therefore, the challenge against the impugned orders fail and the writ petitions are dismissed. It is made clear that if the petitioners file applications for grant of NOC before the State Level Committee along with all the required documents within a period of three weeks, the State Level Committee will consider them and pass appropriate orders within a period of five months thereafter. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**