Bava Sharafudheen vs The Secretary To Government
2023 Latest Caselaw 4406 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945
                 WP(C) NO. 11459 OF 2023
PETITIONER:

         BAVA SHARAFUDHEEN
         AGED 52 YEARS
         S/O KUNHI MOHAMMED HAJI,
         RARAMAKANDATH HOUSE,
         THRIKKANNAPURAM P.O.,
         PONNANI TALUK,
         PIN - 679582

         BY ADVS.
         A.AMRUTHA VIDYADHARAN
         T.KRISHNANUNNI (SR.)(K/280/1973)


RESPONDENTS:

    1    THE SECRETARY TO GOVERNMENT
         FOREST & WILD LIFE DEPARTMENT,
         SECRETARIAT,
         THIRUVANANTHAPURAM,
         PIN - 695001

    2    THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS
         (SA & NODAL)
         FOREST HEADQUARTERS,
         VAZHUTHACAUD,
         THIRUVANANTHAPURAM,
         PIN - 695014

    3    THE DIVISIONAL FOREST OFFICER AND WILDLIFE WARDEN
         OFFICE OF WILDLIFE WARDEN
         NILAMBUR SOUTH DIVISION,
         NILAMBUR P.O.,
         MALAPPURAM DISTRICT,
         KERALA,
         PIN - 679329

    4    THE FOREST RANGE OFFICER
         FLYING SQUAD RANGE NILAMBUR P.O.,
         MALAPPURAM DISTRICT,
         KERALA,
 W.P.(C.) No. 11459/2023              2




              PIN - 679329



              BY SRI. T.P. SAJAN, SPECIAL GOVERNMENT PLEADER


       THIS    WRIT       PETITION   (CIVIL)      HAVING    COME    UP    FOR
ADMISSION      ON   12.04.2023,          THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C.) No. 11459/2023             3




                               JUDGMENT

This writ petition is filed by the petitioner seeking the

following reliefs:-

"1) To call for the records leading to Ext. P16 and quash the same by a writ of certiorari.

2) To direct the Respondents to process the application submitted by the Petitioner as per Ext.P8 receipt and issue him license for running the sawmill by name M/s. R.K. Wood Industries;"

2. Predominantly, petitioner is challenging Ext.P16

order, dated 24.02.2023 passed by the Divisional Forest

Officer, Nilambur, South Division, Malappuram District - the

third respondent; whereby the licence application submitted

by the petitioner to run a wood based industry as per the

provisions of the Kerala Forest (Regulation of Sawmills and

Other Wood Based Industrial Units) Rules, 2012 (for short,

the 'Rules, 2012') is declined on the ground that brother of

the petitioner, namely, one Aboobacker has filed a

complaint against licence being granted to the petitioner to

run the wood based industry, in a building belonging to

Aboobacker. It is thus challenging the legality and

correctness of Ext.P16, the writ petition is filed.

2. The case projected by the petitioner is that

petitioner's father was the licensee of the sawmill in

question. The father has executed Ext.P1 gift deed

assigning the licence of the sawmill in favour of the

petitioner. It is also the case of the petitioner that as per

Ext.P13 dated 23.01.2016, it is clear that the application

submitted by the petitioner for renewal of the licence is

pending consideration before the State Level Committee as

per the Rules in question.

3. It is the further contention of the petitioner that

Ext.P16 order was passed without providing an opportunity

of hearing and considering the documents produced by the

petitioner in order to substantiate that the licence is

entitled to be transferred and renewed in the name of the

petitioner.

4. On the other hand, learned counsel Sri. Nabil

Khader submitted that he is actually engaged by the

brother, Sri. Aboobacker to appear in this case and make

submissions. Since I propose to dispose the writ petition, I

thought it fit to hear learned counsel for Aboobacker also

exercising my powers conferred under Rule 152 of the

Kerala High Court Rules.

5. Learned counsel for Aboobacker submitted that

even though the sawmill is gifted to the petitioner, the

building in which the sawmill was conducted is assigned in

favour of Aboobacker. Therefore, according to Aboobacker,

the claim raised by the petitioner to transfer and renew the

license and conduct the sawmill in the premises in question

may not be a correct submission made by the petitioner in

this writ petition.

6. I have heard learned Senior Counsel for the

petitioner Sri.T. Krishnan Unni, learned Special Government

Pleader for Forest, Sri. T.P.Sajan and Sri. Nabil Khader,

learned counsel appearing for the brother, Sri. Aboobacker,

and perused the pleadings and material on record.

7. As I have pointed out above, the paramount

contention advanced by learned Senior Counsel for the

petitioner revolves around Ext.P16 order, dated 24.02.2023

passed by the Divisional Forest Officer. On a perusal of the

said order, it is convincing and clear that no opportunity of

hearing was provided to the petitioner or any other person

before passing Ext.P16 order. The contents of Ext.P16

shows that on the basis of complaint submitted by

Aboobacker, the application for transfer and renewal of the

licence for the wood based industry was declined by the

Divisional Forest Officer. This I say because, it is an

admitted fact that petitioner's father was holding a licence

as per the Rules, 2012 and therefore, the petitioner or any

other legal heirs of the licensee is entitled to submit an

application for transfer and renewal of the licence by virtue

of Rule 15(4) of the Rules, 2012.

8. In that view of the matter, even if there was a

complaint filed by Aboobacker, the Divisional Forest Officer

ought to have heard petitioner as well as Aboobacker and

considered the issue taking into account all relevant

documents for the purpose.

Having not done so, Ext.P16 order suffers from the

vice of arbitrariness and illegality and I am also of the view

that it is violative of principles of natural justice.

Accordingly, Ext.P16 is quashed and there will be a

direction to the Divisional Forest Officer - the third

respondent to re-consider the matter, after providing notice

of hearing to the petitioner and the brother, Aboobacker or

any other interested persons, at the earliest, at any rate,

within one month from the date of receipt of a copy of this

judgment.

Sd/-

SHAJI P. CHALY JUDGE

DCS/12.04.2023

APPENDIX

PETITIONER EXHIBITS

EXHIBIT P-1 A TRUE COPY OF THE GIFT DEED NO.3817/2007 OF S.R.O., EDAPPAL DATED 24/08/2007

EXHIBIT P-2 A TRUE COPY OF THE LATEST BASIC TAX RECEIPT DATED 23/04/2022 ISSUED FROM THAVANUR VILLAGE OFFICE

EXHIBIT P-3 A TRUE COPY OF THE POSSESSION CERTIFICATE DATED 19.09.2022 ISSUED FROM THAVANUR VILLAGE OFFICE

EXHIBIT P-4 A TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 5/11/1986 ISSUED TO THE PETITIONER'S FATHER SRI. R. K.

KUNHIMOHAMMED HAJI BY THE DIVISIONAL FOREST OFFICER, NILAMBUR

EXHIBIT P-5 A TRUE COPY OF THE BUILDING TAX RECEIPT DATED 22/08/2022 ISSUED BY THE THAVANNOOR GRAMA PANCHAYATH

EXHIBIT P-6 A TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 22/08/2022 ISSUED BY THE THAVANUR GRAMA PANCHAYAT OF BUILDING BEARING THAVANUR GRAMA PANCHAYATH DOOR NUMBER IX/623 9 (OLD DOOR NO. VII/862)

EXHIBIT P-7 A TRUE COPY OF THE LOCATION SKETCH DATED 09/09/2022 ISSUED BY THE VILLAGE OFFICER, THAVANNOOR

EXHIBIT P-8 A TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT NO. FC3-2534/08 DATED

30.08.2008 ISSUED BY THE 2ND RESPONDENT

EXHIBIT P-9 A TRUE COPY OF FACTORIES, TRADERS, ENTREPRENEURS AND OTHER SERVICES LICENSE NO.302/2022-2023/SC2/3933 DATED 22/08/2022 ISSUED BY THE THAVANUR GRAMA PANCHAYATH

EXHIBIT P-10 A TRUE COPY OF THE PROFESSION TAX-

TRADERS RECEIPT DATED 22/08/2022 ISSUED BY THE THAVANUR GRAMA PANCHAYATH

EXHIBIT P-11 A TRUE COPY OF THE SANITARY FITNESS CERTIFICATE DATED 14/09/2022 ISSUED BY THE HEALTH INSPECTOR, CHC THRIKKANAPURAM, MALAPPURAM

EXHIBIT P-12 A TRUE COPY OF THE VERIFICATION REPORT DATED 26/05/2009

EXHIBIT P-13 A TRUE COPY OF THE LETTER DATED 23/01/2016 ISSUED TO THE 3RD RESPONDENT

EXHIBIT P-14 A TRUE COPY OF THE LETTER DATED 17/09/2022 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER

EXHIBIT P-15 A TRUE COPY OF THE ORDER DATED 17/09/2022 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT

EXHIBIT P-16 A TRUE COPY OF THE STOP MEMO DATED 24/02/2023 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER