IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 WA.No. 1044 of 2011() --------------------- AGAINST THE JUDGEMENT IN WPC.16396/2011 Dated 07/07/2011 .................... APPELLANT : PETITIONER --------------------------------------- ANEESH CHACKO, AGED 31 YEARS, S/O.CHACKO AUGUSTINE, MANGALATHIL HOUSE, ANAVILASOM P.O., KUMILY, IDUKKI DISTRICT. BY ADV. MR. S.SANAL KUMAR MS. BHAVANA VELAYUDHAN MS. T.J.SEEMA RESPONDENTS : --------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE DIVISIONAL FOREST OFFICER, KOTTAYAM-686001. * 3. KERALA FINANCIAL CORPORATION REP. BY ITS MANAGING DIRECTOR, THIRUVANANTHAPURAM (impleaded as additional respondent No.3 as per order dated 25.08.2011 in I.A. No. 1044 of 2011) R1 AND R2 BY SPECIAL GOVERNMENT PLEADER FOR FOREST MR. T.R. RAVI R3 ADV. MR. M.M.SAYED MUHAMMED, SC, KFC THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. NO. 1044 OF 2011 APPENDIX APPELLANT'S ANNEXURES : ANNEXURE A1 : COPY OF THE LETTER OF CONFIRMATION OF SALE ISSUED BY KERALA FINANCIAL CORPORATION DATED19.12.2001 ANNEXURE A2 : COPY OF THE CASH RECEIPT VOUCHERS EVI- DENCING PAYMENT OF AMOUNT. /TRUE COPY/ P.A. TO JUDGE MANJULA CHELLUR, Ag. C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.A. No. 1044 OF 2011 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 16th day of November, 2011 JUDGMENT Ramachandra Menon, J. The unsuccessful writ petitioner is the appellant before this Court. 2. The challenge raised in the writ petition was, against Ext. P7 proceedings issued by the second respondent directing the petitioner to close down the saw mill, which he was operating without licence. The reason for ordering closure was that the writ petitioner did not produce any material to substantiate the fact that the saw mill was in existence as on 30.10.2002, which was the cut off date prescribed, in view of the verdict passed by the Supreme Court in T.N. Godavarma Thirumulpad Vs. Union of India (2002 (9) SCC 502). The operative portion of the said verdict has been extracted in the impugned order dated 19.05.2011, which reads as follows : “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 saw mills, veneer or plywood industry without prior permission of the Central Empowered W.A No. 1044 of 2011 :2: Committee. The Chief Secretary of each State will ensure strict compliance of this direction. There shall also be no relaxation of rules with regard to the grant of licence without previous concurrence of the Central Empowered Committee.” 3. The challenge raised by the writ petitioner was that, the unit belonging to him was very much in existence as early in the Nineties, though it was in the name of somebody else and that the writ petitioner happened to be the owner of the unit, on becoming the successful bidder in the public auction conducted by the Kerala Financial Corporation. The sequence of events as narrated in the proceedings reveals that the erstwhile owner was running the unit based on the licence issued by the concerned local authority and also on the basis of the no-objection certificate issued by the Divisional Forest Officer, vide Ext. P2. The said unit had borrowed some amount from the financier i.e. Kerala Financial Corporation. Pursuant to the default committed by the erstwhile owner, the unit was taken over by the Kerala Financial Corporation, invoking the power and procedure under Section 29 of the State Financial Corporation Act on 04.03.1998. The unit was lying closed down for nearly four years and thereafter finally leading to the public auction. The Kerala Financial Corporation informed the writ petitioner, vide Annexure A1 proceedings W.A No. 1044 of 2011 :3: dated 19.12.2001, as to the confirmation of the bid in his favour. Pursuant to the above sale, Ext. P4 sale deed was executed on 03.06.2003 and it was thereafter, that the petitioner revived the unit. 4. The case of the writ petitioner was that, by virtue of the turn of events the unit was liable to be held as in existence, though in the name of the erstwhile owner, much prior to the cut off date i.e. 30.10.2002 and as such, the writ petitioner ought to have considered as beneficiary of the verdict passed by the Apex Court for continuing the operation of the saw mill. The plea raised by the writ petitioner as above was considered by the learned Single Judge and was rejected as per the judgment under challenge in this appeal. Referring to the factual position, it was observed that, by no stretch of imagination, could it be said that the unit was in existence prior to 30.10.2002. 5. Heard the learned special Government pleader as well. 6. The licence issued by the local authority produced by the writ petitioner (Ext. P6) is dated 07.12.1994. There is no case for the writ petitioner that the said licence was renewed after its expiry on 31.03.1995. Going by the terms of the relevant provisions of law and also the mandate given by the Apex Court, the licence was to be issued only subject to the W.A No. 1044 of 2011 :4: previous concurrence of the 'Central Empowered Committee' for continuing the operation of the saw mill. The words used by the Supreme Court are also specific, that, “No State Government or Union Territory shall permit the opening of any saw mills, veneer or plywood industry, without prior permission of the Central Empowered Committee”. The word 'opening' contemplates the opening of new unit as well as a closed down unit. It is also an admitted/undisputed fact that the writ petitioner or the erstwhile owner was not operating the saw mill on 30.10.2002. The sale of the premises with the plant and machinery by the Kerala Financial Corporation effected in the year 2003, cannot be termed as a 'green card' for the writ petitioner to have the benefit of the verdict passed by the Apex Court, treating it as an existing unit as on 31.10.2002, even though the statutory prescription under Section 29 will enable the transferee of the unit to have all the rights and interests of the transferor, the original owner. The unit, which was transferred to the writ petitioner was only a 'closed down unit' and not an existing unit or operating unit. In view of the specific observation made by the Apex Court that no 'opening' of the unit shall be permitted and no licence shall be issued without previous concurrence of the Central Empowered Committee, it was obligatory on the W.A No. 1044 of 2011 :5: part of the writ petitioner to have obtained necessary 'NOC' of the prescribed authority for continuing the operations of the saw mill. 7. The learned counsel for the appellant also made a submission that Ext. P7 order was passed by the Divisional Forest Officer without giving any opportunity of hearing and hence there was violation of the principles of natural justice. True, going by the contents of Ext. P7, it is seen that, no prior notice was issued to the writ petitioner. But it is a fact that Ext. P7 order was issued to give effect to the verdict passed by the Apex Court, which specifically mandates that the units which were in existence as on 30.10.2002 alone could have an exception. There is no material with the appellant to show that the unit in question was in existence/operation as on the said date. This being the position, even if an opportunity is ordered to be to have Ext. P7 reconsidered after hearing, it could only be an 'empty formality', as nothing more could have been brought out by the writ petitioner before the said authority, in view of the admitted facts. We see no reason to interfere with the judgment under appeal. The writ appeal fails and the same is dismissed accordingly. It is made clear that, this will not bar the way of the appellant in W.A No. 1044 of 2011 :6: approaching the concerned authority to get the No-objection Certificate or to have the licence renewed to operate the saw mill under the relevant provisions of law. Sd/- MANJULA CHELLUR, Ag. CHIEF JUSTICE Sd/- P. R. RAMACHANDRA MENON, JUDGE kmd