C.F. Joseph vs District Collector, Erenakulam

N.Nagaresh, J

These writ petitions concern the same issue and hence are heard together and being disposed of by a common judgment.

In WP(C) No.21792/2015, the petitioner is seeking to quash Ext.P3 order of the Sub Divisional Magistrate by which the petitioner is directed to stop the functioning of "St. Antony's Saw Mill" and to adopt scientific methods to reduce the sound and air pollution. In WP(C) No.24279/2016, the petitioner prays to direct respondents 1 to 7 to ensure that the unlicensed saw mill of the 8th respondent (petitioner in WP(C) No.21792/2015) is closed down forthwith for want of requisite licence from the 1st respondent. The parties and documents are referred to in this judgment as they are arrayed/marked in WP(C) No.21792/2015.

In WP(C) No.21792/2015, the petitioner stated that he is the proprietor of St. Antony's Saw Mill and Furniture Mart, an SSI Unit registered with District Industries Centre, Ernakulam. The 5th respondent (the petitioner in WP(C) No.24279/2016) is the wife of petitioner's brother. The Industrial Unit was issued Ext.P1 Consent to Operate, by the Pollution Control Board. The petitioner' s brother and his wife, the 5th respondent, are inimical to the petitioner and have been filing complaints before various authorities against functioning of petitioner's industrial unit.

On such a complaint made to the District Collector, the 2nd respondent-Sub Divisional Magistrate issued Ext.P3 Preliminary Order under Section 133 Cr.P.C. Ext.P3 order required the petitioner to stop the functioning of "St. Antony's Saw Mill" and to adopt scientific methods to reduce the sound and air pollution within 7 days. The petitioner sought time to file objection. While so, the 4th respondent-Grama Panchayat issued Ext.P4 Stop Memo, based on another complaint of the 5th respondent.

The petitioner states that he has Consent to Operate issued by the Pollution Control Board. However, the Panchayat is not renewing their licence on the ground that NOC from the Chief Conservator of Forests is not received. The process of issuing NOC by the Chief Conservator of Forests is going on, as evidenced by Ext.P8. However, the Panchayat is insisting on production of NOC from the Forest Department. The petitioner would submit that for renewing an existing licence, the Panchayat need not insist on production of Forest Department's NOC.

Pending the writ petition, the 6th respondent-Chief Conservator of Forests issued Ext.P11 order holding that as per the Kerala Forest (Regulation of Saw Mills and Other Wood Based Industrial Units) Rules, 2012, the petitioner is not eligible to run the saw mill as the saw mill was started after 30.10.2002. Based on Ext.P11, the Divisional Forest Officer issued Ext.P12 notice directing the petitioner to close down the Unit.

The petitioner states that Pollution Control Board Authorities held a hearing on the basis of complaints made against the Unit and drew Ext.P14 minutes in which the petitioner was directed to relocate the existing gate of the industrial unit and to heighten the existing compound wall using bricks and sheets. The petitioner has complied with those directions and reported compliance as per Ext.P15. Nevertheless, the Panchayat issued Ext.P16 requiring the petitioner to stop the functioning of the Saw Mill. Hence, the petitioner challenges Exts.P3, P4, P11, P12 and P16.

The 5th respondent has filed WP(C) No.24279/2016 alleging that the Saw Mill of the petitioner is causing severe nuisance and pollution adversely affecting the residents in the neighbourhood. The Saw Mill is functioning just 7 metres away from the house of the 5th respondent. The District Medical Officer has given Ext.P1 (in WP(C) No.24279/2016) report to this effect. The Panchayat has not renewed their licence. The Divisional Forest Officer has ordered to stop the functioning of the Mill invoking the Kerala Forest (Regulation of Saw Mills and Other Wood Based Industrial Units) Rules, 2012. The petitioner is not entitled to operate the Saw Mill based on Ext.P8 consent of the Pollution Control Board.

Respondents 1 and 2 filed counter affidavit in WP(C) No.21792/2015. Respondents 1 and 2 stated that a Preliminary Order has been issued under Section 133 Cr.P.C. against the petitioner. The Panchayat Secretary was directed to investigate the matter and take necessary steps. The Panchayat Secretary was directed to verify NOC from Pollution Control Board, Health and Forest Departments, before allowing any licence.

Heard the learned counsel for the petitioners in the writ petitions, learned Government Pleader representing official respondents, the learned counsel for the Grama Panchayat, the learned Special Government Pleader (Forests) and the learned Standing Counsel for the Pollution Control Board.

The petitioner wants to run a Saw Mill which is a wood based industry. The petitioner requires Consent from the Pollution Control Board, Licence from Grama Panchayat and NOC from Forests Department to run the Industry. In the petitioner's case the Sub Divisional Magistrate has initiated Section 133 proceedings also under the Code of Criminal Procedure. The aforesaid authorities have taken action against petitioner's unit based on the complaints raised by the 5th respondent.

The petitioner held Ext.P1 Consent to Operate issued by the Pollution Control Board. On receipt of complaints, the Pollution Control Board Authorities convened a hearing on 19.04.2016 as per Ext.P13 and the Board directed certain corrective measures to be taken by the petitioner, as per Ext.P14 minutes. According to the petitioner, he has implemented the suggestions of the Board. If that be so, there cannot be any objection in the petitioner getting the Board's Consent to Operate renewed.

As regards Ext.P3 proceedings impugned by the petitioner, Ext.P3 is only a preliminary order issued under Section 133 Cr.P.C. The petitioner can file his objections to the proceedings if the proceedings still survive and it will be up to the Sub Divisional Magistrate to conclude the proceedings. The challenge against Ext.P3 is therefore premature.

The Grama Panchayat has issued Ext.P4 Stop Memo based on the Preliminary order of the Sub Divisional Magistrate. Subsequent to Ext.P4, the competent authority, namely the Pollution Control Board, has intervened in the matter and suggested remedial measures to reduce pollution to permissible levels. Therefore, the Grama Panchayat has to reconsider the issue based on Exts.P14 and P15 as also the proceedings of the Sub Divisional Magistrate.

Exts.P11, P12 and P16 orders are based on the Kerala Forest (Regulation of Saw Mills and Other Wood Based Industrial Units) Rules, 2012. The specific case of the petitioner in this regard is that the Forest authorities have proceeded treating the petitioner's unit as falling under Category-I, whereas the petitioner's unit is a Small Scale Wood Industry and hence is Category-II. If that be so, the petitioner's unit will fall under the exempted categories in Rule 3(7) and consequently, the cut off date 30.10.2002 will not apply to the petitioner. It is the case of the petitioner that his unit is a registered Small Scale Industry.

According to the petitioner, even assuming that it is a Category-I Industry, while considering the application for licence, the competent authority has to obtain a report on availability of wood from all sources, in view of Rule 9(ii). Ext.P11 has been issued without obtaining such a report. The petitioner has a further case that an order in the nature of Ext.P11 can be passed only by State Level Committee as defined under Rule 2(u) of the Rules.

This Court do not deem it necessary to decide the legality of Ext.P11 in these proceedings as the petitioner has statutory alternate remedy of appeal and revision under the Kerala Forest (Regulation of Saw Mills and Other Wood Based Industrial Units) Rules, 2012.

In the facts and circumstances of the case, the writ petitions are disposed of relegating the petitioner in WP(C) No.21792/2015 to avail statutory remedy under the Kerala Forest (Regulation of Saw Mills and Other Wood Based Industrial Units) Rules, 2012 against Ext.P11 order. If the petitioner obtains NOC/Licence under the said Rules, the Grama Panchayat shall consider the application for renewal of licence submitted by the petitioner untrammelled by Ext.P4 order. The petitioners in both the writ petitions will be free to prosecute/defend the proceedings initiated as per Ext.P3 if the cause of action and proceedings are still pending.