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2020 DIGILAW 423 (KER)

Eappen T. Thomas v. State of Kerala

2020-05-21

ANU SIVARAMAN

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ORDER : Anu Sivaraman, J. 1. The prayers in the writ petition are as follows:-- "(i) To issue a writ of certiorari or other appropriate writ order or direction to call for the records leading to the issuance of EXHIBIT - P16, P18 and P19 and quash the same and all further proceedings thereon; (ii) To issue a writ of mandamus or other writ, order or direction directing the respondents to permit the petitioner to install band saw in the petitioner's Sawmill namely Thekkeparambil Sawmill, Vechoochira, Ranni, without any reference to the availability of adequate quantity of wood from all sources. (iii) To issue a writ of mandamus or other writ, order or direction declaring that the petitioner is entitled to install band saw in the petitioner's Sawmill namely Thekkeparambil Sawmill, Vechoochira, Ranni, without any reference to the availability of adequate quantity of wood from all sources." 2. Heard the learned counsel for the petitioner and the learned Special Government Pleader appearing for the respondents. 3. It is submitted that the petitioner inherited a Sawmill which was working from 1969, which had a band saw, re-saw and other machineries with a power connection of 35 HP. There were some objections from the neighborhood for using re-saw and band saw together. The Vechoochira Grama Panchayath had granted D and O Licence for the use of 35 HP machineries and the installed capacity of the saw mill was 200 metric cubes annually. There were litigation between the predecessor in interest of the petitioner and some neighboring residents. This was compromised by agreeing that the petitioner will shift the saw mill from the premise in which it was functioning. Accordingly, the petitioner inherited the Sawmill and purchased land at suitable new location and installed the saw mill with all necessary permits and D and O Licence. 4. It is contended that the Forest Department directed the petitioner to submit an application for using the band saw and re-saw together in the light of the Kerala Forest Rules, 2012. Though the petitioner made such an application, it was rejected by Ext. P7 order dated 19.2.2013. Though further litigations ensued, the respondents have rejected the petitioner's request for reconnecting the band saw which 'as in existence prior to 30.10.2002, which is under challenge. 5. Though the petitioner made such an application, it was rejected by Ext. P7 order dated 19.2.2013. Though further litigations ensued, the respondents have rejected the petitioner's request for reconnecting the band saw which 'as in existence prior to 30.10.2002, which is under challenge. 5. It is submitted by the learned counsel for the petitioner that assessment of availability of adequate quantity of wood from all sources is not applicable in petitioner's case as the D and O Licence was granted for the unit with re-saw and band saw together prior to 30.10.2002. Moreover, the petitioner is not intending to enhance the installed capacity for more than 200 metric cubes of wood per year. It is contended that the band saw is essential for the functioning of the Sawmill to improve quality of work, save time and cost, reduce labour dependence, etc. and it is only the continuation of the earlier sawmill. It is argued that there is no restriction in Kerala Forest Rules or Court Order to re-install a band saw existed prior to 30.10.2002 in a sawmill functioning with all permits and licences, without enhancing the annual installed capacity in terms of wood consumption. 6. The learned counsel places reliance on the documents produced along with the reply affidavit to contend that the sawmill was functioning with the capacity of 35 HP and therefore the action taken without considering the relevant aspects of the matter is completely unsustainable. 7. A counter affidavit has been placed on record by the 1st respondent. It is stated that as per Rule 12(1) of the Kerala Forest (Regulation of Sawmills and other wood based Industrial Units) Rules, 2012, no person shall enhance the capacity of any sawmill or wood based industrial units without the written permission of the authorised officer. It is stated that as per Rule 12(3), the licence for enhancing the capacity of sawmill shall be granted only after assessing the availability of wood from all sources by the Advisory Committee. It is stated that it was pursuant to the directions issued by the Apex Court that the 2012 Rules were framed. It is contended at paragraph 6 of the counter affidavit as follows:- "6. It is stated that it was pursuant to the directions issued by the Apex Court that the 2012 Rules were framed. It is contended at paragraph 6 of the counter affidavit as follows:- "6. It is submitted that the petitioner, the owner of Thekkeparambil Sawmill in Vechoochira Gramapanchayat, Ranni had applied for installation of a band saw in his saw mill as part of modernization on 15-01-2013 and the same was rejected by the Divisional Forest Officer, Ranni. Against this, the petitioner filed a representation dated 11-06-2013 before the Chief Conservator of Forests (Special Afforestation) and Nodal Officer. In the meantime Sri. Eappen T. Thomas, the petitioner filed Writ Petition (C) No. 27484/13 before the Hon'ble High Court of Kerala and the Hon'ble High Court disposed of the Writ Petition with a direction to the first respondent i.e. the Chief Conservator of Forests (Special Afforestation) and Nodal Officer to consider and pass appropriate order on the petition dated 11-06-2013 after giving an opportunity of hearing to the petitioner within 2 months from the date of judgment. Accordingly the Additional Principal Chief Conservator of Forests (Special Afforestation) and Nodal Officer after hearing the petitioner, rejected vide order FC3-46984/2013 dated 3-2-2014 as there was no ground to consider the request. Subsequently, Sri. Eappen T. Thomas filed a Revision petition before the Government. The main argument raised by the petitioner was that the band saw will help to reduce over dependence on labour to improve the quality of work, to avoid chance for uneven cutting and irregular cut-" ting and help for uniform output as compared to re-saw. The petitioner has also argued that it is difficult to cut timber logs with different diameter and shape at the top, center and bottom using resaw alone. As requested, the petitioner was heard on 06-11-2014, 28-11-2014 and 26-05-2015. The petitioner reiterated that installation of bandsaw is not for increasing the capacity of the sawmill and not intended to increase wood consumption but as a part of modernization, it will result in better production, reducing wastage, simplifying the process and increasing output. He has also submitted that there is no intention to enhance the quantity of timber used since permission to consume 200m3 timber annually was already granted. He has also submitted that there is no intention to enhance the quantity of timber used since permission to consume 200m3 timber annually was already granted. The direction of the Hon'ble Supreme Court dated 30-10-2002 in IA No. 566 in WP(C) 202/1995 (T.N. Godavarman Thirumulpad Case) is that - "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 unit forthwith. 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. The Chief Secretary of the State will ensure strict compliance of this direction. There shall also be no relaxation of rules with regard to the grant of license without previous concurrence of Central Empowered Committee. It shall be open to apply to this court for relaxation and or appropriate modification of orders qua plantations or grant of licenses". The Kerala Forest (Regulation of Sawmills and Other wood-based Industrial Units) Amendment Rules, 2015, sub-rule (3) of Rule 12 says that "Licence for enhancing the installed capacity of a sawmill or other wood based industrial units using all types of wood, by installing additional Bandsaw, resaw of having the power above 5HP or any other machine having the power above 5HP suitable for converting round log and hydraulic press for plywood manufacturing shall be granted only after assessing the availability of wood from all sources by the Advisory Committee and on satisfaction that adequate quantity of wood is available for permitting such enhancement of capacity of the unit". In accordance with the above provisions of the said amendment rules, the Government vide Order GO(Rt) No. 515/20015/F and WLD dated 26-11-2015, disposed of the revision petition filed by Sri. Eappen T. Thomas by giving direction to the petitioner to apply before the Advisory Committee." It is stated that all the materials produced by the petitioner had been looked into and it was specifically found that there was no material to support the contention of the petitioner that the petitioner was operating a sawmill or wood based industrial unit with 35 HP as claimed by him. It is stated that the petitioner's representation itself would make it clear that though permission was granted to operate the band saw, it could not be operated due to the objections of the neighboring land owners. It is stated that the petitioner's representation itself would make it clear that though permission was granted to operate the band saw, it could not be operated due to the objections of the neighboring land owners. It is stated that Ext. P9 statement given by the petitioner clearly admits these facts. It is further contended that the documents produced by the petitioner along with the writ petition and the reply affidavit also do not disclose the conduct of the unit with the additional band saw. 8. I have considered the contentions advanced. The claim of the petitioner is that he is entitled to operate the unit with machineries having 35 HP. The issue has been specifically considered by the respondents taking note of all the documents produced by the petitioner. It is clear that a permission to use a band saw with 15 HP had been granted to the petitioner. However, in Ext. P9 statement, the petitioner submits that there were objections from certain persons to the operation of the said band saw and the band saw could not be operated due to the objections. He states that he purchased the sawmill in the year 2010. Thereafter also; a writ petition has been filed before this Court with regard to the machineries used in the sawmill. It is stated that an affidavit had been filed on 15.2.2012 before this Court and a direction was issued that the band saw would not be operated in the premises. It is apparent from what is stated in Ext. P9 that the band saw for which permission had been obtained should not be operated in the sawmill before 2002 or at any time thereafter. The 2012 Rules specifically provides for licence for operation of sawmill or wood based industrial units at the same capacity that they were operating as on the relevant date, i.e.; 1.10.2002. Rule 6(1) of the 2012 Rules contemplates an application in Form No. 1A for licence under Rule 7. Only a person running a sawmill or wood-based industrial unit under a licence obtained from the Local Self Government Institution or a licence obtained from the Department of Factories and Boilers, Government of Kerala, as on 30th October, 2002 can apply for a licence under Rule 7 in terms of Rule 6(1). Only a person running a sawmill or wood-based industrial unit under a licence obtained from the Local Self Government Institution or a licence obtained from the Department of Factories and Boilers, Government of Kerala, as on 30th October, 2002 can apply for a licence under Rule 7 in terms of Rule 6(1). Rule 6(2) provides that any person intending to obtain a licence to establish a new sawmill or other wood-based industrial unit after the commencement of the rules shall apply in Form No. 1B. Rule 9(ii) provides that any sawmill which started functioning after 30.10.2002 shall be given licence only after assessing the availability of wood from all sources by the Advisory Committee and on satisfaction that adequate quantity of wood for the unit is available. Rule 12 provides that no person shall enhance the capacity of any sawmill or wood-based industrial unit without the written permission of the Authorised Officer and licence for enhancing the installed capacity shall be granted only after assessing the availability of wood. It is therefore clear that what is contemplated by the rules is the grant of licence to a sawmill or wood-based industrial unit to carry on operations with the same capacity at which it was functioning as on 30.10.2002. In case the petitioner requires licence for any enhanced capacity, there has to be a separate application submitted for the same, which has to be considered appropriately by the Authorised Committee. An assessment as to the availability of wood has also to be undertaken. In the instant case, the respondents have considered the contentions raised by the petitioner and have held that the petitioner is entitled to renewal of licence with 20 HP capacity as he was running as on the relevant date, i.e.; 1.10.2002. After considering the contentions advanced and the provisions of the Rules, I find that the refusal to grant licence for any enhanced capacity cannot be said to be illegal or arbitrary. In the above view of the matter, the writ petition fails and the same is accordingly dismissed.