{"id":33431,"date":"2010-01-20T00:00:00","date_gmt":"2010-01-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-niravath-industries-vs-the-divisional-forest-officer-on-20-january-2010"},"modified":"2016-01-09T09:51:04","modified_gmt":"2016-01-09T04:21:04","slug":"ms-niravath-industries-vs-the-divisional-forest-officer-on-20-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-niravath-industries-vs-the-divisional-forest-officer-on-20-january-2010","title":{"rendered":"M\/S Niravath Industries vs The Divisional Forest Officer on 20 January, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
M\/S Niravath Industries vs The Divisional Forest Officer on 20 January, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 25 of 2010(C)\n\n\n1. M\/S NIRAVATH INDUSTRIES,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE DIVISIONAL FOREST OFFICER,\n                       ...       Respondent\n\n2. KATTAPPANA GRAMA PNCHAYATH, REP. BY\n\n                For Petitioner  :SRI.T.RAMPRASAD UNNI\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR\n\n Dated :20\/01\/2010\n\n O R D E R\n                     T.R. Ramachandran Nair, J.\n                  - - - - - - - - - - - - - - - - - - - - - - - -\n                W.P.(C) Nos.25, 26 and 27 of 2010-C\n                  - - - - -- - - - - - - - - - - - - - - - - - - - -\n            Dated this the 20th day of January, 2010.\n\n                                JUDGMENT\n<\/pre>\n
       These writ petitions raise a common question and therefore they are<\/p>\n
disposed of by a common           judgment.       The question is whether the<\/p>\n
Divisional Forest Officer is competent to entertain an application for No<\/p>\n
Objection Certificate from the petitioners in the light of the directions<\/p>\n
issued by the Apex Court in T.N. Godavarman Thirumulpad v. Union of<\/p>\n
India<\/a> (2002 (9) SCALE ).\n<\/p>\n
      2. I will deal with the contentions of the parties as pleaded in W.P.<\/p>\n
(C) No.25\/2010 since the legal contentions are the same. The petitioner<\/p>\n
therein is running an industry known as               Niravath Industries in the<\/p>\n
Kattappana Mini Industrial Estate from the year 1979. It is a sawmill in<\/p>\n
which timber is used for various purposes. It is pointed out that the same is<\/p>\n
situated 8 k.ms. away from forest limit. The petitioner was granted No<\/p>\n
Objection Certificate by the Divisional Forest Officer, Kottayam as per its<\/p>\n
proceedings dated 22.6.2009. The second respondent Grama Panchayat has<\/p>\n
also issued a licence which is valid upto 31.3.2010. By Ext.P3 order the<\/p>\n
Divisional Forest Officer cancelled the No Objection Certificate without<\/p>\n
wpc 25, 26 & 27 \/2010                 2<\/span><\/p>\n
issuing any notice to the petitioner. The second respondent Panchayat has<\/p>\n
thereafter cancelled the licence issued to the petitioner, as per Ext.P5.<\/p>\n
      3. It is the case of the petitioner that the unit was functioning from<\/p>\n
1979 onwards. It was allowed to operate in the light of Ext.P1 judgment in<\/p>\n
O.P.No.3427\/1999 and the cancellation of the No Objection Certificate is<\/p>\n
without any justification. It is further pointed out that at any rate, the<\/p>\n
petitioner was entitled to be issued notice in the matter. Ext.P4 is the copy<\/p>\n
of the No Objection Certificate issued by the Divisional Forest Officer after<\/p>\n
due enquiry.\n<\/p>\n
      4. As directed by this Court, a statement has been filed by the first<\/p>\n
respondent.    The additional third respondent has also filed a counter<\/p>\n
affidavit.\n<\/p>\n
      5. Heard learned Senior Counsel Shri K.Ramakumar appearing for<\/p>\n
the petitioners, learned Govt. Pleader and Shri M.C. John, learned counsel<\/p>\n
for the additional third respondent.\n<\/p>\n
      6. The question turns round on the directions issued by the Apex<\/p>\n
Court in Godavarman Thirumulpad’s case (2002 (9) SCALE 81) and the<\/p>\n
procedure prescribed for grant of No Objection Certificate in terms of the<\/p>\n
directions therein which are covered by various Govt. Orders issued in the<\/p>\n
matter.\n<\/p>\n
wpc 25, 26 & 27 \/2010                   3<\/span><\/p>\n
       7. The contention raised by the respondents is that in the light of the<\/p>\n
directions issued by the Apex Court the Divisional Forest Officer is not<\/p>\n
competent to issue any No Objection Certificate for the unit after<\/p>\n
30.10.2002. The Divisional Forest Officers are only competent to issue the<\/p>\n
certificates if the licence was valid as on 30.10.2002, i.e. the date of the<\/p>\n
judgment of the Apex Court. Ext.P4 was issued by the Divisional Forest<\/p>\n
Officer     without any authority and therefore it was cancelled. The<\/p>\n
petitioners have got a remedy to approach the State level committee duly<\/p>\n
authorized by the Central Committee for issuance of No Objection<\/p>\n
Certificate as they are the only authority in this regard.<\/p>\n
       8. Even though it is contended by the learned Senior Counsel for the<\/p>\n
petitioner that the unit was having NOC prior to 30.10.2002, it turned out<\/p>\n
that the NOC which was granted in 1991 was not renewed thereafter after<\/p>\n
its expiry during 1992.\n<\/p>\n
       9. Along with the statement filed by the Divisional Forest Officer the<\/p>\n
application of the petitioner to grant the NOC has been produced as Ext.R1<\/p>\n
(a). It is only an application for issuance of NOC afresh and not for renewal<\/p>\n
of an existing one. The application is dated 27.5.2009. It is therefore clear<\/p>\n
that the unit was not having NOC as on 30.10.2002, the crucial date.<\/p>\n
Ext.R1(b) is the direction issued by the Chief Conservator of Forests with<\/p>\n
wpc 25, 26 & 27 \/2010                  4<\/span><\/p>\n
reference to the procedure for issuance of NOC, etc. It is provided therein<\/p>\n
that the Divisional Forest Officers can renew the licence in respect of the<\/p>\n
units which are functioning as on 30.10.2002 and which have got valid<\/p>\n
licence and NOC as on that date. It is further stated that if the NOC has<\/p>\n
not been renewed at the relevant time, such units will have to submit<\/p>\n
application for a fresh NOC to the State level committee.<\/p>\n
      10. It is clear that the application for NOC was submitted subsequent<\/p>\n
to the directions issued by the Chief Conservator of Forests, as per Ext.R3<\/p>\n
(d) dated 27.6.2008.      Herein, the NOC originally granted in 1991, had<\/p>\n
expired and it was not renewed. Ext.R1(a) is the application submitted for<\/p>\n
getting fresh NOC. This could have been considered only by the State level<\/p>\n
committee.    In the statement filed by the first respondent, it is further<\/p>\n
pointed out that the State Level Committee is duly authorized by the Central<\/p>\n
Empowered Committee by its order dated 29.4.2008 to receive applications<\/p>\n
for starting wood based industries in the State of Kerala. In fact, this is the<\/p>\n
reason pointed out by the Divisional Forest Officer in Ext.P3 to cancel the<\/p>\n
NOC. It is stated in Ext.P3 that the petitioner has to approach the Central<\/p>\n
Empowered Committee\/State Empowered Committee for getting a fresh<\/p>\n
NOC.\n<\/p>\n
      11. Learned Senior Counsel appearing for the petitioner relied upon<\/p>\n
wpc 25, 26 & 27 \/2010                  5<\/span><\/p>\n
the judgment of a Division Bench of this Court in W.A. No.1593\/1999 and<\/p>\n
connected cases, which is produced as Ext.P6, in support of the plea that<\/p>\n
the Divisional Forest Officers are competent in the matter of issuance of<\/p>\n
NOC. A reading of the judgment shows that the issue considered therein<\/p>\n
was different.    Therein, the question arose whether in respect of units<\/p>\n
functioning within a distance of 5 k.m. from the reserve forest, NOC can be<\/p>\n
renewed or not. The Division Bench was of the view that there is no<\/p>\n
positive direction by the Supreme Court not to renew the licence of the saw<\/p>\n
mills which are already in existence within a distance of 5 kms. radius from<\/p>\n
a reserve forest. The Supreme Court has only directed that no fresh licence<\/p>\n
be issued within a radius of 5 kms. from the reserve forest, vested forest etc.<\/p>\n
It was also held that going by the decision of the Apex Court in<\/p>\n
Jawaharlal Sharma and another v. Divisional Forest Officer (2002 (3)<\/p>\n
SCC 42), the issue of fresh licence and renewal application has to be treated<\/p>\n
differently.\n<\/p>\n
       12. The question arises herein is totally different and therefore the<\/p>\n
said judgment will not help the petitioner. As far as this case is concerned,<\/p>\n
the objection is not on the basis of want of 5 kms. distance from the forest.<\/p>\n
It is clear from Ext.P4 order that the unit is situated about 6 kms. away from<\/p>\n
the reserve forest.\n<\/p>\n
wpc 25, 26 & 27 \/2010                  6<\/span><\/p>\n
      13. Shri M.C. John, learned counsel appearing for the additional third<\/p>\n
respondent submitted that in the light of Exts.R3(a) to R3(f), the petitioner<\/p>\n
cannot now contend for the position that NOC was not required prior to<\/p>\n
30.10.2002. It is submitted that going by Ext.R3(a), it is clear that by<\/p>\n
various Govt. Orders, it was made compulsory that no wood based industry<\/p>\n
shall be permitted to function without        getting NOC from the Forest<\/p>\n
Department. Ext.R3(a) is dated 15.11.1999.        It is therefore submitted that<\/p>\n
the action taken by the Divisional Forest Officer is perfectly justified. The<\/p>\n
unit can function only if NOC is issued by the State Level Committee which<\/p>\n
is absent herein.    It is also submitted that even if the contention that the<\/p>\n
impugned order was passed without any notice is accepted, still it can be<\/p>\n
legally sustained as the NOC was issued by the Divisional Forest Officer for<\/p>\n
which he was not empowered. In the light of the factual position emerging<\/p>\n
in this case, the petitioner’s unit cannot be allowed to function till the State<\/p>\n
Level Committee considers and passes orders on his application.<\/p>\n
      14. A reading of Ext.R3(a) order shows that as per Govt. Order<\/p>\n
dated 11.11.1992 it was specified that No Objection Certificate of the<\/p>\n
Divisional Forest Officer has to be obtained for starting any industry based<\/p>\n
on forest produce within a radius of 5 kms. from reserve forest. It is also<\/p>\n
specified that without NOC from the Divisional Forest Officer, no other<\/p>\n
wpc 25, 26 & 27 \/2010                  7<\/span><\/p>\n
Government department or local authority shall issue permission.         In<\/p>\n
Ext.R3(a), it is further specified that once NOC was issued, for renewal of<\/p>\n
the same for a period of five years, a fresh NOC by the department is not<\/p>\n
required. Ext.R3(b) is the order containing the directions issued by the<\/p>\n
Apex Court dated 29.10.2002 in Godavarman Thirumulpad’s case<\/p>\n
(supra). Ext.R3(c) contains the directions issued by the Central Empowered<\/p>\n
Committee directing each State to constitute State Level        Empowered<\/p>\n
Committee and to deal with matters to be considered by each State Level<\/p>\n
Committee. The State Level Committee is empowered to deal with pre<\/p>\n
30.10.2002 saw mill cases. Ext.R3(d) is the Circular dated 27.6.2008<\/p>\n
issued by the Chief Conservator         of Forests directing all the Forest<\/p>\n
Conservators and Divisional Forest Officers directing that instructions may<\/p>\n
be issued to all the applicants who submit application for NOC to function<\/p>\n
any   wood      based    industry,   to  submit    the  same    before  the<\/p>\n
Chairman\/Convener, State Level Committee and no application shall be<\/p>\n
received by the Divisional Forest Officers. Ext.R3(f) is the copy of the<\/p>\n
order dated 19.12.2003 issued by the Apex Court in respect of a matter<\/p>\n
wherein suo motu contempt action was taken by a Divisional Forest<\/p>\n
Officer for modification of the order dated 29\/30\/10\/2002.<\/p>\n
      15. It is therefore clear from the various documents mentioned above<\/p>\n
wpc 25, 26 & 27 \/2010                 8<\/span><\/p>\n
that  only the State Level Committee is empowered to deal with the<\/p>\n
application for NOC in cases where the same is submitted after 30.10.2002.<\/p>\n
In respect of those applications, the Divisional Forest Officer cannot issue<\/p>\n
the certificate which is clear from Ext.R3(d) Circular. The direction issued<\/p>\n
by the Apex Court in para 43 of the judgment in Godavarman<\/p>\n
Thirumulpad’s case (supra) is to the following effect:<\/p>\n
       “No State or Union Territory shall permit any unlicensed saw-mills,<\/p>\n
       veneer, plywood industry to operate and they are directed to close all<\/p>\n
       such unlicensed units forthwith. No State Government or Union<\/p>\n
       Territory will permit the opening of any saw-mills, veneer or<\/p>\n
       plywood industry without prior permission of the Central<\/p>\n
       Empowered Committee.        The Chief Secretary of each State will<\/p>\n
       ensure strict compliance of this direction. Thre shall also be no<\/p>\n
       relaxation of rules with regard to the grant of licence without<\/p>\n
       previous concurrence of the Central Empowered Committee.”<\/p><\/blockquote>\n
      16. Shri K. Ramakumar, learned Senior Counsel for the petitioner<\/p>\n
wanted to draw a distinction by pointing out that as far as the petitioners’<\/p>\n
units are concerned, they are having licence issued by various statutory<\/p>\n
authorities prior to 30.10.2002 and they are not new units which started<\/p>\n
functioning after 30.10.2002 and therefore the directions of the Apex Court<\/p>\n
will not apply to them.\n<\/p>\n
wpc 25, 26 & 27 \/2010                   9<\/span><\/p>\n
      17. The said contention cannot be accepted in the light of the various<\/p>\n
procedures prescribed, as discussed above. It cannot be disputed that the<\/p>\n
units ought to have obtained NOC prior to 30.10.2002. As on 30.10.2002<\/p>\n
the unit operated by the petitioner was not having NOC. The application<\/p>\n
filed by the petitioner is for issuance of NOC afresh and not for renewal. In<\/p>\n
that view of the matter, the said contention cannot be accepted.<\/p>\n
      18. The question whether the impugned order is bad for violation of<\/p>\n
the principles of natural justice, is the other moot question raised by the<\/p>\n
learned Senior Counsel for the petitioners. It is true that the petitioner was<\/p>\n
not issued notice and no hearing was offered prior to the cancellation of the<\/p>\n
NOC. The crucial aspect herein is that the NOC was cancelled on the<\/p>\n
ground that the Divisional Forest Officer was not having power to issue the<\/p>\n
same as per the proceedings Ext.P4. Since it is issued by an authority who<\/p>\n
has no power or authority, the same is liable to be cancelled.<\/p>\n
      19. It is now well settled by various decisions of the Apex Court that<\/p>\n
if on admitted facts, only one conclusion is possible, the court need not<\/p>\n
issue a futile writ, on the plea of violation of natural justice. The said<\/p>\n
principle is evident from the decision of the Apex Court in S.L. Kapoor v.<\/p>\n
Jagmohan<\/a> {(1980) 4 SCC 379) which is reiterated in M.C. Mehta v.<\/p>\n
wpc 25, 26 & 27 \/2010                 10<\/span><\/p>\n
Union of India (JT 1999 (5) SC 114). Herein, even if the order is bad for<\/p>\n
violation of the principles of natural justice, this Court, in the light of the<\/p>\n
decision of the Apex Court in Godavarman Thirumulpad’s case (supra)<\/p>\n
cannot direct the Divisional Forest Officer to reconsider the matter as it is<\/p>\n
the State Level Committee alone which has got jurisdiction. Therefore, this<\/p>\n
Court need not issue a futile writ.\n<\/p>\n
      20. Learned Senior Counsel then submitted that the petitioner will<\/p>\n
submit appropriate application before the State Level Committee and till a<\/p>\n
decision is taken, the unit may be allowed to function, especially since the<\/p>\n
workers will be affected. This is opposed by the learned Govt. Pleader and<\/p>\n
the learned counsel for additional third respondent by submitting that as<\/p>\n
there is no valid NOC, the unit cannot be allowed to function. In the light<\/p>\n
of the directions issued by the Apex Court, there cannot be any doubt that<\/p>\n
without a valid NOC the licences issued by the other departments and local<\/p>\n
authority will not help the petitioner to run the unit. As on today, the NOC<\/p>\n
stands cancelled.      The directions issued by the Apex Court being<\/p>\n
mandatory, this Court cannot therefore, in these proceedings allow the units<\/p>\n
to function till the State Level Committee chooses to grant the NOC.<\/p>\n
      21. In W.P.(C) No.26\/2010, Ext.P1 is the copy of the No Objection<\/p>\n
Certificate dated 13.5.2009 and Ext.P2 is the licence issued by the<\/p>\n
wpc 25, 26 & 27 \/2010                11<\/span><\/p>\n
Panchayat dated 25.9.2009. Ext.P3 is the order passed by the Divisional<\/p>\n
Forest Officer with a direction to the petitioner to approach the Central<\/p>\n
Empowered Committee\/State Empowered            Committee for getting fresh<\/p>\n
NOC. Similar contentions have been raised therein also.<\/p>\n
      22. Ext.R1(a) produced herein is the application submitted by the<\/p>\n
petitioner on 17.12.2008 for issuance of NOC afresh. It is not for renewal<\/p>\n
of the NOC issued already.     In this case also the unit in question was not<\/p>\n
having NOC prior to 30.10.2002.\n<\/p>\n
      23. In W.P.(C) NO.27\/2010, Ext.P1 is the copy of the NOC dated<\/p>\n
10.6.2009 and Ext.P2 is the copy of the licence dated 31.7.2009 issued by<\/p>\n
the Panchayat.     Ext.P3 is the order cancelling the NOC issued by the<\/p>\n
Divisional Forest Officer on the same ground. Ext.R1(a) is the application<\/p>\n
filed by the petitioner seeking NOC.      The same is an application for<\/p>\n
issuance of a fresh NOC.      There is no document to show that as on<\/p>\n
30.10.2002 the petitioner was having a valid NOC.\n<\/p>\n
      24. In all these three cases it is clear that as on 30.10.2002 the<\/p>\n
petitioners were not having NOC issued by the Divisional Forest Officer.<\/p>\n
Only if there were valid NOC as on the said date, they are entitled for a<\/p>\n
renewal by the Divisional Forest Officer.      In these circumstances, the<\/p>\n
proceedings granting NOC by the Divisional Forest Officer cannot be<\/p>\n
wpc 25, 26 & 27 \/2010                12<\/span><\/p>\n
supported, for want of jurisdiction.     The applications could have been<\/p>\n
considered only by the State Level Committee, in the light of the direction<\/p>\n
issued by the Apex Court and the circular issued by the Chief Conservator<\/p>\n
of Forests which is produced as Ext.R3(d) in W.P.(C) No.25\/2010.<\/p>\n
      25. The competent authority being the State Level Committee , it is<\/p>\n
up to them to consider the applications. Learned Govt. Pleader submitted<\/p>\n
that if the petitioners make an application immediately, the same will be<\/p>\n
considered and will be disposed of within five months.<\/p>\n
      26. Therefore, the challenge against the impugned orders fail and the<\/p>\n
writ petitions are dismissed.   It is made clear that if the petitioners file<\/p>\n
applications for grant of NOC before the State Level Committee along with<\/p>\n
all the required documents within a period of three weeks, the State Level<\/p>\n
Committee will consider them and pass appropriate orders within a period<\/p>\n
of five months thereafter. No costs.\n<\/p>\n<\/p>\n
                                    (T.R. Ramachandran Nair, Judge.)<\/p>\n
kav\/<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-33431","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nM\/S Niravath Industries vs The Divisional Forest Officer on 20 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-niravath-industries-vs-the-divisional-forest-officer-on-20-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S Niravath Industries vs The Divisional Forest Officer on 20 January, 2010 - 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