High Court Kerala High Court

M/S Niravath Industries vs The Divisional Forest Officer on 20 January, 2010

Kerala High Court
M/S Niravath Industries vs The Divisional Forest Officer on 20 January, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 25 of 2010(C)


1. M/S NIRAVATH INDUSTRIES,
                      ...  Petitioner

                        Vs



1. THE DIVISIONAL FOREST OFFICER,
                       ...       Respondent

2. KATTAPPANA GRAMA PNCHAYATH, REP. BY

                For Petitioner  :SRI.T.RAMPRASAD UNNI

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :20/01/2010

 O R D E R
                     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/