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2008 DIGILAW 195 (KER)

Sudevan v. Chief Conservator of Forest

2008-03-14

H.L.DATTU, K.M.JOSEPH

body2008
Judgment :- H.L. Dattu, C.J. The judgment of the learned single Judge in W.P.(C)No.33212 of 2007 dated 14th January, 2008 is the subject matter of this Writ Appeal. 2. Thepetitioner with an intention to commence a "furniture unit" has submitted an application before the officials of the Forest Department for grant of "No Objection Certificate"(for short NOC), to produce the same before the Industries Department to obtain permission to commence his furniture unit. In the application so filed, it is stated that there is no forest land within the radius of 5 Kms from the proposed site and that there is no restriction for grant of No Objection Certificate by the Forest Department. 3. After receipt of the application so filed by the petitioner, the Divisional Forest Officer, Nenmmara, Palakkad District has issued Ext.P3 order directing the petitioner to submit the application before the Central Empowered Committee. It is this order (Ext.P3) was questioned by the petitioner before this Court. This Court, while entertaining the Writ Petition had issued notice to the respondents. After receipt of the notice, the respondents have filed detailed counter affidavit stating that in terms of the Supreme Court order, no State Government or Union Territory will permit the opening of any sawmills , veneer or plywood industry without prior permission of the Central Empowered Committee. In the counter affidavit, they have also relied on Annexure R2(b) order passed by the Government of Kerala wherein it is stated that for all wood-based industries, clearance should be obtained from the Central Empowered Committee . 4. The learned single Judge keeping in view the dictum laid down by the Supreme Court and also orders passed by the State Government, has not taken exception to Ext. P3 order passed by the Divisional Forest Officer. Accordingly, the learned single Judge has rejected the Writ Petition. That is how, the petitioner in the Writ Petition has presented this Writ Appeal. 5. Shri K. Anand, learned counsel appearing for the appellant submits that the petitioner intends to commence a "furniture unit". May be that unit is a wood based industry and even then also, since the petitioners unit is not situated within the radius of 5 Kms from the forest area, the petitioner need not have to obtain No Objection Certificate from the Central Empowered Committee. 6. May be that unit is a wood based industry and even then also, since the petitioners unit is not situated within the radius of 5 Kms from the forest area, the petitioner need not have to obtain No Objection Certificate from the Central Empowered Committee. 6. Per contra, Shri Renjith Thampan, learned Special Government Pleader for Forest, would submit that the Central Empowered Committee had constituted a Sub-Committee to look into the various aspects of the wood based industries in Kerala. It is further stated that the Sub-Committee, after having a detailed discussion, has submitted a report to the Central Empowered Committee and that they are awaiting for the response from the Central Empowered Committee. Learned Counsel, therefore, submits that for the present, the Divisional Forest Officer is justified in issuing Ext. P3 order. Learned Counsel has also produced before us the relevant papers regarding the constitution of the Sub-Committee by the Central Empowered Committee and the reference made by the Central Empowered Committee to the Sub-Committee to deal with certain aspects of the matter and the report of the sub-committee to the Central Empowered Committee. 7. TheCentral Empowered Committee which was constituted by the Apex Court by its order dated 28.02.2006, had constituted a Sub-Committee consisting of Shri K. Balachandran Thampi, Addl. Principal Chief Conservator of Forests as the Chairman of the Sub-Committee and Shri N.V. Trivedi Babu, Chief Conservator of Forests (Protection) and a representative of the Director General of Forests for the following purposes: "(a) to assess the timber availability, before establishing of any new wood-based industries in Kerala after taking into consideration details of existing licensed wood-based industries, their installed capacity, total timber required by them and timber available from government states (net) and imported timber(net). (b) to examine feasibility of grant of permission to units based exclusively on rubber wood without linking it with the overall availability of timber after considering ground situation and whether effective steps could be taken to ensure that these units do not use any timber other than rubber, and .(c) to examine various applications filed/received by the CEC or referred to the CEC by the Honble Court regarding grant of permission to new wood-based industries in Kerala. For this purpose, a suitable and transparent guideline will be prepared and implemented by the Committee." 8. For this purpose, a suitable and transparent guideline will be prepared and implemented by the Committee." 8. The Sub-Committee so constituted by the Central Empowered Committee has made certain recommendations to the Central Empowered Committee for issuing No Objection Certificate to furniture units without using saw. The recommendations made by the Sub-Committee is as under: "About 660 wood based furniture units are presently functioning in Kerala which do not use any kind of saw. 405 numbers of such units are functioning without any permission or NOC from the Forest Department whereas 178 units are functioning with the permission of the Department. Permission from forest Department is not mandatory as per rules, the total quantity consumed annually by these units is 35782 m3 of wood which includes hard wood, soft wood and rubber wood obtained from Forest Department and other sources. Out of this, 21322 m3 is being consumed by the units functioning without permission from the Forest Department. The Committee noted that the furniture units are basically carpentry units which are not primary consumers of wood and undertake only re-sawing operation of carpentry works for small wooden articles. Therefore, the availability of wood or otherwise is not a material fact in allowing furniture units which do not use sawing of wood. The Committee decided to de-link the question of issuing NOC to the furniture units without saw mills to the availability of raw materials. The Committee also noted that there are only six applications pending issue of NOC for starting furniture units. The Committee therefore decided to recommend that the Divisional Forest Officers (Territorial) may be authorized to issue NOC to the furniture units that do not propose to use any saw based on the following guidelines. 1. Theapplicant shall not be involved in any forest offences. 2. They should maintain stock register and utilization register designated by the Department. 3. Theregisters are subject to verification by the Department as and when required. 4. They should function at an identified building or part of it. 5. The Range Officer of the area and staff should have access to the unit any time. 6. The units should not use any round logs. They will not be eligible to carry out any sawing of round logs. 4. They should function at an identified building or part of it. 5. The Range Officer of the area and staff should have access to the unit any time. 6. The units should not use any round logs. They will not be eligible to carry out any sawing of round logs. If the unit is found to have used round timber, whether from legal sources or otherwise, its license will be liable to be cancelled in addition to other penalties. They can use plaining machine, Leith, cross cut saw only. 7. The Annual installed capacity of the unit cannot be enhanced and shifting of the unit and conversion into other types of wood based units will not be permitted. 8. Thefurniture units without using saw should not be located in the same compound having any other wood based units. Furniture units and saw mill should not be under the same ownership also. The Committee also decided that the furniture units using saw, shall invariably require permission from CEC as described in the Honble Supreme Courts judgment dated 10.12.2002. The Committee also decided to recommend to issue NOC to all the furniture units without saw functioning already in the State. The Committee decided to take up the question of NOC to the saw mills and other wood-based units in their next sitting." 9. On the basis of the report of the Sub-Committee, the Central Empowered Committee is expected to take a decision on the question of issuing No Objection Certificate to the Saw mills and other wood based industries. Since the dispute involved in this case is as to whether No Objection Certificate can be granted or not to those Saw mills/wood-based industries/furniture units, a decision in this regard has to be taken by the Central Empowered Committee. Till a decision is taken by one way or other by the Central Empowered Committee, in our opinion, the Divisional Forest Officer cannot act upon an application filed by the petitioner/appellant. In that view of the matter, after going through the reference made by the Central Empowered Committee and the report of the Sub-Committee constituted by the Central Empowered Committee, we are of the opinion that the respondents are justified in issuing Ext.P3 order. Keeping all these aspects of the matter in view, the learned single Judge has rightly rejected the Writ Petition filed by the petitioner. Keeping all these aspects of the matter in view, the learned single Judge has rightly rejected the Writ Petition filed by the petitioner. We do not see any infirmity in the order passed by the learned single Judge. Therefore, no interference is called for with the orders passed by the learned single Judge. Accordingly, the Writ Appeal requires to be rejected and it is rejected. 10. However, liberty is reserved to the petitioner to revive his application before the Divisional Forest Officer, after a decision is taken by the Central Empowered Committee as recommended by the Sub-Committee constituted by the Central Empowered Committee. We also reserve liberty to the petitioner/appellant to approach the Central Empowered Committee, for appropriate reliefs, if he so desires. Ordered accordingly.