P. Bharathi vs The Principal Chief Conservator of Forests

S. Manikumar, J.—Being aggrieved by the proceedings in Ref. No. WR4/33903/2013 dated 26.09.2013 dated 26.09.2013 of the Principal Chief Conservator of Forests, Chennai, 1st respondent herein, and Na.Ka. No. 6193/13/T, dated 18.10.2013 of the District Forest Officer, Salem Division, Salem 3rd respondent herein, rejecting the request of the petitioner for transfer of licence, in favour of the writ petitioner, and refusal to grant permission for shifting the place of business, on the ground that it would amount to granting a fresh licence and aggrieved over the direction that the petitioner should apply afresh, through the State Level Committee, and thereafter, get orders from the Central Empowered Committee, New Delhi, the petitioner has filed the present writ petition, to quash the above said proceedings and consequently, prayed for a direction to the respondents, to transfer Form II License issued under the Tamil Nadu Regulation of Wood Based Industries Rules, 2010, standing in the name of Thiru. C. Palani in favour of the petitioner. It is the case of the petitioner that his father, Thiru C. Palani was running a Saw Mill, under the name and style of Palani Andavar Saw Mill at Plot No. 13/3, SIDCO industrial Estate, Mettur Dam-2 for nearly two years. After coming into force of the Tamil Nadu Regulation of Wood Based industries Rules 2010 hereinafter referred to as ''the Rules''), his father was issued with a licence, bearing licence No. 82/2012 dated 21.12.2012 by the Licensing Officer, viz., the District Forest Officer, Salem Division, Salem, 3rd respondent herein.

It is the further case of the petitioner that his father has become old and due to suffering from certain ailments, he has decided to transfer the said Saw Mill Licence to him and accordingly, he has executed a Deed of Settlement, dated 12.07.2013. Both the petitioner''s sisters, Ms. P. Thangamani and Ms. P. Bhuvaneswari, have given No Objection Certificate, dated 31.03.2013. In the above said circumstances along with petitioner''s father''s letter dated 12.07.2013, he submitted an application to the District Forest Officer, Salem Division, Salem, the 3rd respondent, for effecting transfer of licence, in his favour he has enclosed the settlement deed and the No Objection Letters, issued by his sisters.

It is the further case of the petitioner that the above said papers were duly forwarded to the Conservator of Forests, Salem Circle, Salem, 2nd respondent herein. He has recommended to consider the petitioner''s request and sent the same to the Principal Chief Conservator of Forests, Chennai 1st respondent herein, for approval. However, vide impugned order, dated 26.09.2013 the 1st respondent has rejected the request of the petitioner, stating that petitioner''s application for transfer of licence and shifting of place, have to be treated as a fresh case and hence, the petitioner should apply to the State Level Committee and get orders from the Central Empowered Committee, New Delhi. Consequently, the District Conservator of Forests, Salem Division, Salem, the 3rd respondent herein, has also passed the another order, dated 18.10.2013 rejecting the case of the petitioner, reiterating the abovesaid reasons. Hence the present writ petition, for the relief, as stated supra.

Inviting the attention of this Court to Rule 6 of the Tamil Nadu Regulation of Wood Based Industries Rules 2010 Mr. K.M. Ramesh, learned counsel for the petitioner submitted that transfer of licence can be allowed from one person to another, in cases of sale, inheritance, division of property, family arrangement and dissolution of partnership, subject to the guidelines issued by the Principal Chief Conservator of Forests, Chennai from time to time. According to him, due to ill-health and old age, when the petitioner''s father has decided to settle the business, in favour of the petitioner and when his sisters have also given No Objection Certificates, there is no impediment, whatsoever, to transfer the license in the name of the petitioner, in terms of Rule 6 of the Tamil Nadu Regulation of Wood Based Industries Rules 2010.

Learned counsel for the petitioner further submitted that the principal Chief Conservator of Forests, Chennai 1st respondent herein, has erred in arriving at the conclusion that transfer of licence, should be treated as a afresh case, to start a wood based industry according to him when there is a statutory provision for effecting transfer of licence under Rule 6 of the abovesaid Rules, the reason for rejecting the request, amounts to failure to exercise the jurisdiction, conferred on the authority and hence, rejection of the petitioner''s request is not in accordance with the abovesaid rule.

Learned counsel for the petitioner further submitted that when the petitioner has sought for shifting of the Saw Mill from Plot No. 13/3, SIDCO Industrial Estate, Mettur Dam 2 to Door No. 40, Salem Main Road, PN Patti Panchayat Office, Inspection has been conducted by the District Forest Officer, Salem Division, Salem 3rd respondent herein, and he has also given a report, stating that there would not be any problem, if the Saw Mill is shifted to a new place.

Apparently. When the rules contemplate transfer of license, for the reasons stated supra, prima facie, the rejection did not appear to be in consonance with the rules. However, the ascertain, as to whether, any inspection has been made for shifting, Mr. N. Inbanathan, learned Government Advocate (Forest), representing Forest Department was directed to get instructions. On receipt of the same, he submitted that inspection has been made on 13.07.2013 and after enquiry, recommendation has been made by the District Forest Officer, Salem Division Salem, 3rd respondent herein, for effecting transfer of licence and shifting of the place.

Learned Government Advocate fairly submitted that though there is a provision for transfer of licence, from one person to another, as per Rule 6, there is no provision, granting permission for shifting, However, it is well known that if a Saw Mill has to be re-located to some other place from the place, to which, licence had already granted, it is incumbent, on the part of the licensee, or transferee, to comply with the requirements, under the statutory provisions, for establishment of a Saw Mill, which is governed by Tamil Nadu Regulation of Wood Based industries Rules 2010.

The counter affidavit filed by District Forest, Salem Division, Salem 3rd respondent, runs as follows:

"(i) The petitioner has approached the respondents, with documents of Settlement Deed, said to have been executed by his father, dated 12.07.2013, along with No Objection Certificate, from his sisters, dated 31.10.2013. But he has failed to produce the document that the petitioner is the only son to the original license holder, Thiru C. Palani, which may cause a rival claim in future, if the license is transferred to the petitioner, as per the Rule 6 of the abovesaid Rules. Therefore, the impugned orders are in the line with the decision of the Apex Court.

(ii) G.O. Ms. No. 323, Environment and Forest Department, dated 21.10.2010, cannot go beyond the abovesaid Rules and guidelines, issued by the 1st respondent, from time to time. Therefore, when any request for change of name is made, it can be considered only as a fresh case and orders have to be obtained from the Central Empowered Committee, New Delhi."

Mr. K.M. Ramesh, learned counsel for the petitioner, also invited the attention of this Court to the minutes of the Meeting held on 12.05.2011, by the Central Empowered Committee, regarding grant of licence to Wood Based Industries, in Tamil Nadu and further submitted that in the abovesaid meeting held on 12th May, 2011, a decision had been taken to the effect that permission for effecting transfer of licence and shifting of saw mills may, in individual cases, can be granted on merits, by the Principal Chief Conservator of Forests, Tamil Nadu and thereafter, appropriate formal orders may be issued for the same as per the abovesaid rules. He also submitted that when a decision has been made by the Central Empowered Committee, New Delhi, that individual cases need not be referred to the committee, rejection of the petitioner''s request for transfer of licence, is not in consonance with the decision stated supra.

Learned counsel for the petitioner further submitted that as regards, grant of licence to wood based industries in Tamil Nadu, before 30th October, 2002, the Committee has resolved to consider only after assessment of timber availability from all sources, in the State of Tamil Nadu.

Heard the learned counsel for the parties and perused the materials available on record.

Before adverting to the facts of this case, this Court deems it to fit to extract the rules, relevant for this case. In exercise of the powers conferred by Section 26 read with Sections 35 and 63 of the Tamil Nadu Forest Act, 1882 (Tamil Nadu Act v of 1882), the Government of Tamil Nadu have framed the Tamil Nadu Regulation of Wood Based Industries Rules, 2010, vide G.O. Ms. No. 156, Environment and Forests (FR 13), 21st October, 2010.

As per Rule 2(h) ''Wood Based Industries'' means saw mill, veneer industries, plywood industries, particle board units, Medium Density Fiber Units, block board units, paper pulp and rayon units and includes any other unit involved in cutting, re-sawing of converting timber.

As per Rule 3, which deals with restriction on establishment of wood based industries, no person shall establish or operate any wood based industries, including the existing unit, unless a license is obtained by him in accordance with these rules. Rule 4 deals with the application for grant licence, which reads as follows:

"4. Application for grant of licence:- (1) Any person, seeking a licence under these rules, shall make an application to the Licencing Officer in Form. The person seeking licence, shall pay such fee as may be specified by the Government from time to time along with application, The fees paid shall not be refunded under any circumstances.

(2) The licence shall be granted by the Licencing Officer in Form-II after satisfying himself that the application is in accordance with all the regulatory mechanism in force for the time being and that the establishment of wood based industries will not have any adverse impact on forests, The licence will be valid for a period of five years.

(3) No licence for setting up new wood based industries within a distance of two kilometers from the boundary of any forest whether notified or not, shall be granted, except when it is required for Departmental use. The distance of two kilometers shall be computed from topo sheets as aerial distance as crow flies."

Rule 5 speaks about the renewal of licence and the same extracted hereunder:

"5. Renewal of Licence:- (1) Any person who has been granted licence under these rules, may apply for renewal of the licence in Form-I within a period of three months before the expiry of the period, for which licence was granted to him along with such fee as may be specified by the Government from time to time. In case the licensee fails to submit his application for renewal within the stipulated period, renewal of licence can be considered by the licencing authority, provided a fee equal to double the fee specified by the Government for renewal is paid by the applicant and the application is made before the expiry of the licence. The renewal application received after the prescribed time limit will be considered and decided by the competent authority as per the guidelines notified by the State Government in this regard from time to time.

(2) On receipt of an application under sub-rule (1) the licensing Officer, after satisfying himself that the application is in accordance with all the regulatory mechanism in-force for the time being and that the establishment of wood based industries will not have any adverse impact on forests shall renew the licence in Form-II for a further period of five years."

Transfer of licence is provided in Rule 6 of the said Rules, which states that the licence shall normally be non-transferable. However, transfer of license can be allowed from one person to another can be ordered, by the Conservator of Forests or Field Director, as the case may be, in cases of sale, inheritance, division of property, family arrangement and dissolution of partnership, subject to the guidelines issued by the Principal Chief Conservator of Forests, from time to time.

On the earlier occasion, when the matter came up for hearing, it was ascertained that no specific guidelines have been framed by the Principal Chief Conservator of Forests, Chennai, 1st respondent, in this regard.

Rule 11 speaks about shifting of the licenced premises and it reads as follows:

"11. Shifting:- (1) if the licensee desires to shift the Wood based industry from one place to another, within the territorial jurisdiction of the same Licencing Officer, then Licensee shall apply to such Licencing Officer stating reasons thereof. The Licencing Officer may permit the shifting of the Wood based industry. If the request is refused, then the Licencing Officer shall record the reason for the refusal in writing.

(2) If the application is made to shift the unit outside the jurisdiction of the Licencing Officer, he shall forward the application along with all relevant papers and documents together with a report after proper enquiry on the good conduct or otherwise of the unit to the Licencing Officer to whose jurisdiction the unit is requested to be shifted. The Licencing Officer in whose jurisdiction the unit is proposed to be shifted shall deal with the matter in the same manner as mentioned under sub-rule (1)."

An appeal remedy is provided under Rule 12 of the Rules, against the refusal or renewal to grant licence or revocation of licence, The said rule is extracted hereunder;

"12. Appeal against the refusal or renewal to grant licence or revocation of licence? (1) Any person who has been refused to grant licence under rule 4, or renew the licence under rule 5, or transfer the licence under rule 6, or whose licence has been revoked under rule 10, or whose request for shifting has been refused under rule 11 may within a period of thirty days from the date of the receipt of such orders prefer an appeal to the conservator of Forest or the Field Director of Tiger Reserve as the case may be.

(2) On receipt of the appeal filed under sub-rule (1), the Conservator of forest or the Field Director of Tiger Reserve shall decide the same after giving the person concerned an opportunity of being heard.

(3) The decision of the Conservator of Forests or Field Director of Tiger Reserve on such appeal shall be final."

From the reading of the abovesaid Rules, it is clear that both transfer of licence and shifting of place from one place to another, within the territorial jurisdiction of the same licensing authority, are permissible and appropriate orders can be issued, by the conservator of Forests or field Director, as the case may be, in cases of sale, inheritance, division or property, family arrangement and dissolution of partnership, subject to the guidelines issued by the Principal Chief Conservator of Forests, from time to time and that the location of a sawmill, as per Rules 4(2) and 5(2) of the abovesaid Rules, should be as follows:

"4(2) The licence shall be granted by the Licencing Officer in Form-II after satisfying himself that the application is an accordance with all the regulatory mechanism in force for the time being and that the establishment of wood based industries will not have any adverse impact on forests. The licence will be valid for a period of five years.

5(2) On receipt of an application under sub-rule (1) the licensing Officer, after satisfying himself that the application is in accordance with all the regulatory mechanism in-force for the time being and that the establishment of wood based industries will not have any adverse impact on forests shall renew the licence in Form-II for a further period of five years."

Admittedly, in terms of the statutory provisions, the Licensing Authority has granted a licence on 21.12.2012 to Thiru. C. Palani, to establish a wood based industry at Door No. 40, Salem Main Road, PN Parti Panchayat Office, near Salem Main Road, Mettur Dam-2 Salem District, valid upto 21.12.2017, subject to the following conditions:

"1. The licensee shall renew the Wood Based industry at D. No. 40, Salem Main Road, PN Patti panchayat Office, near Salem Main Road, Mettur Dam-2 Salem District.

The licensee shall not alter location of the Wood Based Industry, without obtaining prior permission in writing of the Licencing Officer concerned.

The licensee shall ensure that:--

(a) the site of the saw mill including the depot/yard for storage of round timber, sawn timber and waste wood is properly fenced/boundary wall erected with proper gates.

(b) all the round timber sawn timber and wood waste are properly stacked according to the instructions that may be issued from time to time by the Licencing Officer.

The Saw Mill should not posses any wood cut and brought unauthorisedly or cut against TNH(PT) Act, 1955/TN PPF Act/TNF Act, or any other Act or Rules. If found violating the conditions, action will be taken to cancel the licence of the Saw Mill."

Material on record discloses that petitioner''s father has executed a settlement deed, dated 12.07.2013 setting the saw mill in favour of the petitioner, and both the petitioner''s sisters, Ms. P. Thangamani and Ms. P. Bhuvaneswari, have submitted No Objection Certificates for effecting transfer of licence, to and in favour of the petitioner. For effecting transfer, both the petitioner, as well as his father, have made separate applications. At this juncture, it is relevant to extract the inspection note of the Forest Officer Mettur Forest Circle, Mettur in his report, dated 13.07.2013, as follows:--

Translated version of the above contents, as follows:

Tamil Nadu Forest Department

From

G. Palanisamy, Forest Ranger, Mettur Forest Range, Mettur.

To,

The District Forest Officer, Salem Forest Division, Salem.

R.C. No. 156/2013 dated 13.07.2013

Respected Sir,

Sub: License-submitting of report by auditing with regard to the petition requesting for effecting change of name of the license of the Saw Mill regarding.

Ref: Memorandum dated 12.07.2013 of the District Forest Officer.

----

I humbly submit that as per the memo of the District Forest Officer, cited under reference, I audited Palani Aandavar Saw Mill functioning, at Door No. 40, Salem Main Road P.N. Patty to-day on 13.07.2013 The owner of this mill is C. Palani son of Chinnu. He runs this mill by obtaining the license number 82/2012. Presently since, he has become very old, he is not in a position to run this mill further continually. Therefore, C. Palani the owner of this mill has executed a deed of Gift Settlement properly in the name of P. Bharathy, his own son and gave the mill to him. As per this settlement, Thiru C. Palani consented to effect change of name of the license of Palani Aandavar Mill which is functioning at Door No. 40 P.N. Patty Mettur Taluk, Salem District, in favour of his son P. Bharathy S/o. C. Palani, Palani Andavar Saw Mill, Plot No. 13/3, SIDCO Industrial Estate, Mettur Dam-636 402 and gave a petition to that effect. Therefore, I humbly submit that as per his desire and in accordance with his requisition, the transfer of license to the address of P. Bharathy his son, may be affected.

Yours Faithfully,

Sd/ Forest Range Officer, Mettur Forest Range, Mettur.

Consequently the District Forest Officer, Salem Division, Salem 3rd respondent herein, has also recommended for transfer of licence/shifting of place. Proceedings in Rc. No. 6193/2013 DT, dated 26.07.2013 and 04.09.2013. are extracted hereunder:

Translated version of the above contents, as follows:

Tamil Nadu Forest Department

From

Thiru N. Thangaraju, I.F.S. District Forest Officer, Salem Forest Division, Salem.

To

The Conservator of Forests, Salem Division, Salem.

R.C. No. 6193/2013T, dated 26.07.2013

Thiruvalluvaraandu 2044, Vijaya year, 10th day in the month of Aadi Respected Sir,

Sub: License- As per the Tamil Nadu Regulation of Wood based industries Rules 2010 granting of license to the establishment relating to trees, started before 30.10.2002 Requisition to effect change of name and address of M/s. Palani Aandavar a Saw Mill belonging to one Thiru C. Palani S/o Chinnu, to the address Thiru P. Bharathi, S/o. C. Palani, Plot No. 13/3 SIDCO industrial Estate, Mettur Dam-2 Salem District - regarding.

Ref: (1) G.O. Rt. No. 156 Forest (F 13) Department dated 21.10.2012

(2) License No. 82/12 dt. 21.12.2012 (Form II)

(3) Application of Thiru P. Bharathi S/o/C. Palani Plot No. 13/3 SIDCO Industrial Estate, Mettur Dam-2 Salem District.

(4) Letter No. 2-31/CEC/SC/2010-Pt-II dated 13.05.2011 of Central Empowered Committee.

As mentioned in the application 3rd cited under reference, Thiru P. Bharathi s/o. C. Palani has applied by enclosing the below-mentioned documents requesting for permission to effect change of name and address of M/s. Palani Aandavar Saw Mill, belonging to Thiru. C. Palani. S/o. Chinnu to plot No. 13/3 SIDCO industrial Estate, Mettur Dam-2 Salem District and to operate the mill.

Petition of the Applicant.

Petition of the person who gave the saw mill through the deed of gift settlement.

License No. 82/12 dated 21.12.2012 (Form II)

Copy of the letter 9059/D3/2005 dated 16.03,2007 of Tamil Nadu Small scale industries Development Corporation.

Sketch of the place where the mill will function.

Copy of the letter of recommendation dated 13/07/2013 of the Forest Ranger, Mettur.

M/s. Palani Aandavar Saw Mill was audited by the District Forest Officer, on 23.07.2013 Since Thiru C. Palani S/o/Chinnu the owner of the aforesaid mill has become old, I recommend that Palani Aandavar Saw Mill may be transferred to the name of Thiru P. Bharathi S/o C. Palani and shifted to the address, Plot No. 13/3 SIDCO Industrial Estate, Mettur Dam-2 Salem District. I humbly submit that the application of the petitioner is sent, by enclosing the application with enclosures, to pass orders for effecting change of name/place/address of the Saw Mill.

Yours Faithfully,

Sd/ N. Thangaraj, District Forest Officer, Salem Division, Salem

Encl:- As said above

Tamil Nadu Forest Department

From

Thiru N. Thangaraju, I.F.S. District Forest Officer, Salem Forest Division, Salem.

To

The Conservator of Forests, Salem Division, Salem.

R.C. No. 6193/2013T dated 04.09.2013

Respected Sir,

Sub: Requisition to change the name and address of M/s/Palani Aandavar Saw Mill belonging to Thiru C. Palani S/o. Chinnu to Thiru P. Bharathi S/o. C. Palani - regarding.

Ref: (1) Proceedings dated 30.8.2013 in WRA/33904/2013 of the Principal Chief Conservator of Forests, Chennai

(2) Proceedings dated 08.08.2013 in R.C. No. M2/6460/2013 of the conservative of Forests, salem Region Salem.

No Objection certificate of the siblings (son/daughter) of the owner of M/s. Palani Aandavar Mill has been called for in the letter of the Principal Chief Conservator of Forests cited under reference.

Tmt. P. Bhuvaneswari (2) Tmt. P. Thhangamani the own sisters of the owner of the aforesaid mill, wholeheartedly have consented and assured that they will not raise any objection, whatsoever, for changing the license and name of the aforesaid saw mill.

The copies of the documents of No Objection Certificate has been enclosed and sent here with,

The new place where the saw mill is to be functioned is at a distance of 8 kms from the reserved forest. Further, in Tamilnadu cutting off trees has been stopped in the reserved forests. There will not be any damage to the reserved forest, since this saw mill is shifted and established. Further, as per the Tamilnadu Regulation of Wood based industries rules 2010, since change of name and address is made to M/s/Palani Aandavar Saw Mill belonging to one Thiru C. Palani, S/o Chinnu in the name of Thiru P. Bharathi, S/o. C. Palani at the address Plot No. 13/3, SIDCO Industrial Estate Mettur Dam-2 Salem District and since the conditions stipulated in these rules are not violated the Tamil Nadu Forest Act, 1882 and Tamilnadu Regulation of wood based industries Rules 2010 are also not violated in anyway, I humbly submit that I recommend to pass order for effecting the change of name of the Saw Mill and the change of place of this mill.

Yours faithfully,

Sd/- N. Thangarasu, District Forest Officer, Salem Division, Salem.

From the above, it could be seen that after making necessary inspection at the proposed site for shifting, the District Forest Officer, Salem Division Salem 3rd respondent herein, has categorically observed that if the saw mill is shifted to the proposed place, it would not be detrimental to the reserve forest. According to the 3rd respondent, the proposed site for shifting is 8 Kms far away from the reserve forest. He has also observed that in Tamil Nadu, cutting of trees, in reserve forest has been stopped. He has also observed that shifting of saw mill from plot No. 13/3, SIDCO industrial Estate, Mettur Dam-2 to door No. 40, Salem Main Road, PN Patti Panchayat Office, near Salem Main Road, Mettur dam-2 Salem District is not violative of the Tamil Nadu Regulation of wood based industries Rules 2010.

As stated supra, through licence is normally, not transferable, but the same can be allowed from one person to another, in cases of sale, inheritance, division of property, family arrangement and dissolution of partnership, subject to the guidelines issued by the Principal Chief Conservator of Forests, Chennai from time to time. In the case on hand, it is a family arrangement. Settlement has been executed. No Objection Certificate has been given by the other legal heirs. When the District Forest Officer, Salem Division, Salem 3rd respondent herein in Rc. No. 6193/2013 DT, dated 26.07.2013 and 04.09.2013 respectively, has already forwarded the report, stating that the proposed site is 8 kms away from the reserve forest, and also observed that there will not be any violation of the abovesaid rules, for the first time, in the counter affidavit, the abovesaid authority has stated that the petitioner has failed to produce the documents, to prove that he is the only son to the licence holder and an apprehension has been raised that there may be a rival claim, in future, if the license is transferred to the petitioner, as per Rule 6 of the above said Rules. Nowhere in the earlier proceedings, the district Forest Officer, Salem Division Salem has raised this objection. On the contra, he has even recommended for shifting and effecting transfer of licence. The counter affidavit sworn by him, on behalf of the other respondents 2 and 3, runs contrary to his own specific recommendation. When petitioner''s sisters have given a No Objection Certificate, to effect transfer of licence, and when the authority has made a clear statement that there is no violation of the rules, the apprehension now raised in the counter affidavit is unfounded and without any basis. At this juncture, it is relevant to extract the impugned orders, which is as follows:

By Email/Most Urgent:

Ref. No. WR4/33903/2013

Office of the Principal Chief Conservator of Forests (Head of Forest Force), Panagal Maaligai Saidapet, Chennai 600 015.

Dated 26.09.2013

Sub: Sawmill - Baggiyalakshmi Sawmill Transfer of licence - Requested-Regarding.

Conservator of forests, Salem Circle, Salem Lr. No. 6461/2013, dated 08.08.2013, Principal Chief Conservator of Forests, Chennai Ref. No. WR4/33903/2013, dated 30.08.2013.

Conservator of Forests, Salem Circle, Salem ref No. M2/6461/2013, date 10.09.2013.

Attention of the Conservator of Forests is invited in the reference cited.

2) It is informed that as per Rule 6 of the Tamil Nadu Regulation of Wood Based Industries Rules, 2010 ''The licence shall normally be non-transferable''. This is the spirit of Rule (6). Hence, transfer of licence and shifting of place amount to new connection.

3) Further, it is also informed that the Maharashtra State Contempt case against Hon''ble Minister and the Secretary was also on the subject of shifting of sawmill and the Tamil Nadu Government have also faced the contempt case pending in Hon''ble Supreme Court of India (Thiru Rajasekar v. Chief Secretary to Government, Secretary to Government E&F PCCF and the Chairman TNEB).

4) Hence, this case is summarily rejected, as this is to be treated as fresh case by furnishing application to the SLC and then to get orders from the CEC, New Delhi.

Sd/A. Ramkumar,

For Principal Chief Conservator of Forests, (Head of Forest Force),

To

The Conservator of Forests, Salem Circle, Salem.

Though the Principal Chief Conservator of Forests, Chennai 1st respondent has observed that granting transfer of licence and shifting of business from one place to another, would amount to granting a new licence, it can only be construed to mean that insofar as requirements for establishing a saw mill is concerned, the same has to be in accordance with the statutory provisions, governing the same, but, when the location of the proposed saw mill had already been inspected and found to be far away from the reserve forest, the 1st respondent ought not to have summarily rejected the application of the petitioner, for transfer of licence, without considering the fact such transfer is permissible, under the rules, for the reasons, stated therein. Yet another factor to be considered is that even at the time of granting licence, in the year 2012, a condition has been imposed in the licence that the licencee shall not alter the location of the wood based industry, without obtaining the prior permission in writing from the licencing authority, which means that shifting is permissible and the competent authority is bound to consider the request, in terms of Rule 11 of the Tamil Nadu Regulation of wood based industries Rules 2010.

In a given case, if licence is granted to one x and if, on account of his illness or for any other bona fide reason, the licencee intends to transfer the licence, by effecting sale of the premises or if the licencee dies and thereafter, his legal representatives succeed to the estate or if there is a division of family properties or a family arrangement and dissolution of partnership of the business, in the humble opinion of this Court, there may not be any necessity, once again to apply to the Central Empowered Committee, New Delhi, for a fresh licence, for the reason that the place of business or saw mill had already been inspected and found suitable for issuance of licence.

As per Sub-rule (2) of Rule 4 of the Tamil Nadu Regulation of wood based industries Rules 2010 licence shall be granted by the Licencing officer in Form II after satisfying himself that the application in accordance with all the regulatory mechanism to force for the time being and that the establishment of wood based industries will not have any adverse impact on forests. The licence will be valid for a period of five years. Sub-rule (3) of Rule 4, states that no licence for setting up new wood based industries within a distance of two kilometers from the boundary of any forest whether notified or not, shall be granted, except when it is required for departmental use. The distance of two kilometers shall be computed from topo sheets as aerial distance as crow flies.

In the case on hand, all the above conditions have been found to be satisfactory, at the time when the District Forest Officer, Salem Division, Salem 3rd respondent, issued the licence to the petitioner''s father on 27.12.2012 under Rules 4(2) and 5(2) of the abovesaid Rules., On 13.05.2011, the Member Secretary of the Central Empowered Committee, constituted by the Hon''ble Supreme Court of India In W.P.(Civil) Nos. 202 of 1995 and 171 of 1996, has minuted that permission for transfer of license and shifting of saw mills may in individual cases, be granted on merits, by the Principal Chief Conservator of Forests, Tamil Nadu and thereafter, the appropriate authority may issue formal orders for the same. The Member Secretary in his Minutes of the Meeting held on 12th May, 2011, has also recorded that individual cases need not be referred to the Central Empowered Committee.

As regards grant of licence, for the cases of post 30th October, 2002, to the wood based industries in Tamil Nadu, the member Secretary of Central Empowered Committee, New Delhi, has further stated that those cases would be considered by the CEC, only after assessment of timber availability from all the sources in the State of Tamil Nadu, qua timber requirement of existing units is completed and pending the above, the CEC would not consider grant of permission of establishment of any post 30th October 2002, Wood Based Industries in the State of Tamil Nadu. At this juncture, it should be noted that the licence to the petitioner''s father to establish a saw mill at the present place, has been granted only after the rules have come into force.

Attention of this Court was also invited to the recommendations of the Member Secretary of Central Empowered Committee, dated 16.06.2004, regarding shifting or re-location of the licenced saw mill from one place to another, within the State. The said recommendations are as follows:

Recommends that for shifting or relocation of licensed saw mills from one place to another place within the state, approval of this Hon''ble Court in terms of its order, dated 12.12.1986 or 30.10.2002, is not required.

These I.As, have been filed by Shri Keshav Prasad Sahoo, resident of Village Pendra, District Bilaspur, Chhattisgarh, for directions for granting permission to transfer the applicant''s saw mill situated at Pendra Road to Village Pendra. The following relief''s have been sought:

(a) grant permission to shift the existing saw mill from Pendra Road (Gorela-I) to Village Pendra (Gorela-2) and

(b) Pass such other orders as considered appropriate in the circumstances of the case.:--

These I,As, were listed for hearing before the Hon''ble Court on 25.08.2003 when the following order was passed.

"Issue notice to the Union of India These I As, be transmitted to CEC for its recommendations."

This report is being filed pursuant to the above order after examining the matter during the hearing held on 16.09.2003.

The Issue:

The applicant has been granted a licence by the Forest Department for a saw Mill at Pendra Road, District Bilaspur. His application seeking permission to shift the saw mill from Pendra Road to village Pendra was not approved by the Forest Department for want of permission from the Hon''ble Supreme Court.

According to the applicant the saw mill has a valid licence and the place where he wants to shift the saw mill is permissible under the relevant saw mill Rules.

View of the State of Chhattisgarh :

During the hearing, it was informed by the State Government of Chhattisgarh that shifting of a saw mill from one place to another place in Chhattisgarh is not being allowed by the Forest Department because pursuant to Para 7 of the Hon''ble Court''s order 12.12.1996 the details of the existing saw mills have been placed before the Hon''ble Supreme Court through an affidavit. No formal order on the affidavit has so far been passed by the Hon''ble Court. Since the matter is pending before the Hon''ble Court, the State of Chhattisgarh is not allowing shifting of the saw mills from one place to another place without the specific approval of the Hon''ble Court. During the hearing it was also informed that the State has no objection to shifting of the saw mill to the proposed site as it is not a restricted areas for the purpose of setting up a saw mill.

Vice of Ministry of Environment & Forests:

The Ministry of Environment and Forests vide affidavit dated 16th September, 2003, have supported the application and stated that the Hon''ble Court may consider to grant permission to the shifting of the licenced saw mill from one location to another with the approval of the Principal Chief Conservator of Forests, Chhattisgarh.

Observations and Recommendations:

This Hon''ble Court in by order dated 12.12.1996 has directed that each State Government should continue an Expert Committee to assess:

(i) the sustainable capacity of the forests of the State quo saw mills and timber based industry.

(ii) the number of existing saw mills which can safety be sustained in the State;

(iii) the optimum distance from the forest, qua that state, at which the saw mill should be located.

Pursuant to the above order the states/union territories has constituted the expert committees and filed their report before this Hon''ble Court. No restriction was imposed by this Hon''ble Court relocation of the saw mill within the state.

This Hon''ble Court by order dated 30.10.2002 has directed closure of all the unlicensed saw mills, in this order also no restriction has been imposed on the shifting of the licenced saw mills from one place to another place.

In view of the above, the CEC of the view that for the shifting or relocation of licensed saw mills from one place to another place within the State, approval of this Hon''ble Court in terms of its order dated 12.12.1996 or 30.10.2002 is not required. The competent authority in the forest department can take a decision for permitting the shifting of the saw mills from one place to another place keeping in view the optimum distance from the forest, the carrying capacity of the State, the recommendations of the Expert Committee and the directions issued by this Hon''ble Court from time to time.

This Hon''ble Court may place consider the above recommendation and may place pass appropriate order in the matter.

The learned counsel for the petitioner has not placed any further orders passed by the Hon''ble Supreme Court on the basis of the recommendations of the Central Empowered Committee on the aspect of shifting or relocation of the saw mills, However reading of the Tamil Nadu Regulation of Wood Based industries Rules 2010, in particular Rules 4(2) and 6 and the Inspection Reports extracted supra, makes it clear that the proposed place is 8 kms away from the Reserve Forest and that the District Forest Officer, Salem District, Salem the 3rd respondent has also categorically stated that there is no violation of the rules, stated supra, The respondents have not produced any order of the Hon''ble Supreme Court on the aspect of transfer of licence or shifting as the case may be. Hence, this Court is constrained to consider the Rules, which permit transfer and shifting. Of course, if shifting has to be done, the new place should certainly satisfy all the requirements under the Forest Laws and the licencee or the transferee, as the case may be should ensure compliance, of all the factors to be taken into consideration for establishment of a saw mill. But at the same time once licence had already been granted to one X, and when the rules permit transfer of the same, then it is obligatory on the part of the licencing authority to apply the rules in consonance with the directions or decision of the Central Empowered Committee, as extracted supra and also the orders of the Hon''ble Supreme Court. At this juncture this Court deems it fit to extract the decision of the Central Empowered Committee, New Delhi, in the Minutes of the meeting held on 12th May, 2011 with the Tamil Nadu Forest Department regarding grant of licence to the wood based industries in Tamil Nadu as follows:

"(i) In Tamil Nadu, there were no saw mill rules in existence to regulate the working of the wood based industries and consequently, no saw mill license was required to be obtained at the time of establishment of wood based industries. The Government of Tamil Nadu vide notification dated 21.10.2010 has notified the ''Tamil Nadu Regulating wood-based Industries Rules, 2010.'' These Rules inter-alia provide that the wood based industries established before the notification of these rules will also require a licence under these Rules;

The State Level Committee for Wood Based Industries in Tamil Nadu (SLC) has, after considering the applications received from various units, categorized 3007 units, as per 30th October 2002, units, i.e., established prior to 30th October, 2002. A final decision in respect of the other units has so far not been taken. The Principal Chief Conservator of Forests, Tamil Nadu Forest Department vide letter, dated 11th May, 2011 has recommended that the CEC may permit grant of licence to these 3007 units. The CEC hereby gives its concurrence for the same.

(ii) The CEC does not agree with the recommendation made by the SLC for grant of licence to M/s. U.B. Board, as the said unit fails in the category of post 30th October, 2002, unit. The grant of licence to the said unit will be considered by the CEC after detailed assessment is completed regarding timber availability in the State quo requirement of existing wood based.

(iii) The permission for the transfer of license and shifting of saw mills may in individual cases, be granted on merits, by the Principal Chief Conservator of forests, Tamil Nadu and thereafter, the appropriate authority may issue formal orders for the same as per the relevant saw mills rules individual cases need not be referred to the CEC.

(iv) There are a number of saw mills whose cases are yet to be decided in compliance of the orders of the Hon''ble Tamil Nadu High Court the SLC is requested to take appropriate action in the matter at the earliest.

(v) The cases of post 30th October 2002 wood based industries will be considered by the CEC, only after assessment of timber availability from all sources to the state of Tamil Nadu qua timber requirement of existing units of completed, pending the above the CEC will not consider grant of permission for establishment of any post 30th October 2002 wood based industries in the State of Tamil Nadu."

In the light of the statutory provisions, this Court is of the view that the applications submitted by the petitioner and his father dated 12.07.2013 for effecting transfer of licence and shifting of the place of business ought to have been considered, in terms of Rules 6 and 11 of the abovesaid Rules and the minutes of the committee. When the 3rd respondent himself has stated that the proposed site is far away from the Reserve Forest and satisfy the requirements under Rule 4 of the abovesaid rules, shifting of Saw Mill ought to have been considered subject to the other requirements, such as, safety, location, etc., contemplated for establishment and running of a saw mill. The site has been inspected by the Forest Officials, It has not been objected to, by them, on any ground, it has not been objected to by them, on any ground. But at the same time, at this juncture, there are no materials as to whether the petitioner has provided adequate safety measures of satisfied any other requirements under the act of the Rules framed thereunder.

For the reasons stated supra the impugned orders are set aside and the matter is remitted back to the Principal Chief Conservator of Forests, Chennai, 1st respondent herein, for consideration of the entire materials afresh, in the light of what is discussed above and the competent authority under the Rules shall pass necessary orders, on the applications of the petitioner and his father, dated 12.07.2013 submitted for transfer of licence and shifting of the premises, within a period of two months from the date of receipt of a copy of this order. In the result the Writ Petition is allowed so the extent stated supra. No costs. Consequently, connected Miscellaneous Petition is also closed.