[WA 1746/2015 and WA.2239/2015]

Ramachandra Menon, J.

1. Right to conduct a sawmill, in the property concerned, is the subject matter of dispute. When the owner of the property contends that he is having all the requisite licenses and has been operating the unit as above, the rival party [nearby inhabitant] contends that the licence was obtained in a fraudulent manner availing the concession given to the units which were functioning before 30.10.2002; whereas the owner of the property admittedly purchased the land and building situated therein only in the year 2010 and no sawmill was in existence at any point of time. As it stands so, the law laid down by a Full Bench of the Apex Court in T.N. Godavarman Thirumulpad Vs. Union of India and others [(2002) 9 SCC 502 = 2002 (9) Scale 81] was to be given effect to and if at all any licence was to be given/obtained, it was to be based on a new application and only on satisfying the requirements/credentials specified in this regard.

2. Obviously, the two appeals arise from the common judgment whereby two different writ petitions filed by the opposite sides were considered together and disposed of. Writ Appeal No. 2239 of 2015 filed by the appellant/objector/nearby inhabitant is to the extent he is aggrieved of the direction given by the learned single Judge in W.P.(C) No. 4460 of 2014 in favour of the sawmill owner; whereas other appeal [W.A. No. 1746 of 2015] has been preferred by the Owner of the Sawmill, to the extent he is aggrieved. W.A. No.2239 of 2015 is treated as the lead case and the parties and proceedings are referred to as given therein. Rival parties are referred to as the owner [owner of the saw mil] and the objector [nearby inhabitant] for convenience of reference.

3. Heard Sri. E. K. Nandakumar, the learned senior counsel appearing for the first respondent in W.A. No. 2239 of 2018 [owner], who happens to be the appellant in other appeal [W.A. No. 1746 of 2015]; Mr. James Kurien, the learned counsel appearing for the appellant in W.A. 2239 of 2015 [objector], who happens to be the first respondent in the other appeal. We heard Mr. Nagaraj Narayanan, the learned special Government Pleader appearing for the Forest Department; Sri. Siby Chenappady, the learned standing counsel for the Local Authority and also Mr. T. Naveen, the learned standing counsel for the Pollution Control Board.

4. The owner of the property purchased an extent of 27 cents of land comprised in Re-survey Nos.502/4; 502/5; 502/6 and 502/7 along with a building and electrical fittings [including the right on the deposit made with the Electricity Board], as per Ext. P1 sale deed dated 10.03.2010. It is stated that a wood furniture unit was in existence in the said property, which however had become defunct even years before the purchase as above. Nothing is discernible from Ext.P1 sale deed as to the existence of any such unit or as to the purchase of machinery stated as installed therein. After effecting the purchase as above; the owner with intent to start a sawmill, made an application before the Local Authority. Ext.P2 is the licence issued by the Local Authority on 25.03.2010 with the validity period of just seven days i.e. till 31.03.2010, subject to the conditions mentioned therein. It is stated that the validity of the licence came to be extended further on 06.05.2013, till 31.03.2014, as revealed from Ext. P2 (a). The Owner approached the Pollution Control Board and obtained Ext. P3 Consent to Operate on 03.09.2011, which was valid till 30.06.2014, subject to the conditions imposed therein. Ext. P4 is the licence dated 06.04.2013 issued by the Divisional Forest Officer, Kottayam in Form No. II A in favour of the sawmill unit [as if it were a unit existing prior to 30.10.2002], subject to the conditions stipulated therein.

5. Different complaints were raised against running of the sawmill from different corners. Taking note of the same, inspections were being conducted and instructions were being issued from time to time by the Pollution Control Board, directing to comply with the requirements as mentioned therein, as discernible from Exts. P5 to P8. Later, observing that further running of the unit would be contrary to the directions given by this Court as per the judgment in O. P. No. 27582 of 2000, Ext. P9 notice was issued by the Pollution Control Board asking why the Consent to Operate shall not be withdrawn.

6. On receipt of the said notice, Ext. P11 reply was submitted by the Owner pointing out that the above unit was purchased from the erstwhile owner who was the 4th respondent in O.P. No. 27582 of 2000; that the Pollution Control Board had granted Consent to Operate the furniture manufacturing unit to the erstwhile owner on 16.05.2000; that the complainants were not on good terms with the Owner; that the Owner has been complying with all the requirements as and when intimated by the Pollution Control Board [based on Exts. P5 to P8] investing huge amount; that the judgment in O. P. No. 27582 of 2000 [produced as Ext.P10] was having no application in the case of the Owner, which had to be read and understood with reference to the facts mentioned therein. Specific reliance was placed on the clearance given by the Divisional Forest Officer and the further proceedings based on Ext. P9 were sought to be dropped.

7. Apprehending coercive steps, the owner moved this Court by filing W.P.(C) No. 4460 of 2014 seeking to quash Ext. P9 notice and to direct the Pollution Control Board to consider Ext. P11 explanation, after affording an opportunity of being heard. Because of the various disputes, the consent was not being renewed and hence an I.A. was filed before this Court seeking for a direction to have it considered. Despite the direction, since it was not complied with, contempt of court proceedings were filed and thereafter, renewal of the consent to operate was given and the Owner was running the unit accordingly.

8. In the meanwhile, the Objector who is a nearby resident, joining hands with another person had filed W.P.(C) No. 7799 of 2015 before this Court seeking to quash the licence issued by the Divisional Forest Officer, Kottayam [produced there as Ext. P2], contending that it was issued in violation of the Rules for granting licence for sawmill, asserting that the sawmill was never functioning as on 30.10.2002 or before. It was also pointed out that functioning of any sawmill in the property was restrained by this Court as per the judgment dated 03.04.2001 in O. P. No. 27582 of 2000. The Objector contended that all similarly placed sawmills started and functioning unauthorisedly after the cut off date had been caused to be closed down by the Forest Department. Though several complaints were filed before the Forest Authorities, it did not yield any positive and hence the Writ Petition.

9. Both the writ petitions were considered together by the learned single Judge. With regard to the judgment in O.P. 27582 of 2000, it was held that the said judgment cannot place any bar or hurdle with regard to the right of the Owner to conduct the sawmill as it was only an inter party judgment between the petitioner concerned and the respondents in the party array. In other words, the contention was that the restriction imposed therein would not bind the Owner in the instant case. This according to the Objector is not correct, as the injunction/restriction/prohibition is with reference to the specific property and not with reference to the particular petitioner and hence it will bind the subsequent Owners of the property as well, who are bound by the law declared by the Apex Court in Godavarman Thirumulpads case [cited supra] and the relevant Rules. This made the first writ petitioner in O.P. 27582 of 2000 to challenge the verdict passed by the learned single Judge in W.P.(C) No. 4460 of 2014, to the extent he is aggrieved, as mentioned above, by filing W.A. No. 2239 of 2015.

10. Regarding the remaining portion/grievance projected by the parties concerned, it was observed by the learned single Judge that the licence issued [Ext.P2 in W.A. No. 1746 of 2015 and Ext. P4 in W.A. No. 2239 of 2015] by the Forest Department was not in conformity with the relevant Rules and hence it was set aside. However, the owner/writ petitioner in W.P. (C) No. 4460 of 2016 was declared as entitled to approach the authorised officer under the Kerala Forest [Regulation of Sawmills and other wood based Industrial Units] Rules, 2012 [hereinafter referred to as 2012 Rules] for setting up a new sawmill and if licence was granted, liberty was reserved to approach the Pollution Control Board for getting the Consent to Operate and also then the Local Authority for getting the necessary licence. If owner succeeded in obtaining all the clearances as above, it was made clear that the judgment in O.P. No. 27582 of 2010 would not operate against him. The interdiction of the existing licence and the direction to apply for new licence in terms of the 2012 Rules and the further direction that the Owner/writ petitioner in W.P.(C) No. 4460 of 2014 definitely cannot operate the sawmill until all the statutory licenses are obtained, made him to feel aggrieved, who has approached this Court by filing W.A. No. 1746 of 2015.

11. W.A. No. 1746 of 2015 was admitted on 12.08.2015 and an interim order was passed on the next day i.e. on 13.08.2015, whereby the judgment under challenge was stayed, letting the operator to whom the licence was issued to conduct the operation subject to further orders. It was subject to the riders imposed; that it shall not be operated between 6 p.m. and 8 a.m. and that all the directions and restrictions issued by the Pollution Control Board shall be strictly complied with; simultaneously directing the Forest Authorities to maintain status quo and to keep in abeyance any further proceedings initiated on the strength of the judgment under challenge. As mentioned already, the Owner of the sawmill is running the unit on the basis of the interim order passed by this Court.

12. The primary point to be noted is, whether any sawmill could be established or operated with the close proximity to the forest area [within 5 kms], after the judgment passed by the Apex Court in Godavarman Thirumulpads case [cited supra]. Relevant portion as contained in paragraph 43 of the said judgment reported in 2002 (9) Scale 81 reads as follows :

No State or Union Territory shall permit any unlicensed sawmills, 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 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.

13. From the above, it is clear that only a sawmill which was established and was in existence before 30.10.2002 could alone continue in the property concerned, situated in close proximity with the forest as above subject to the condition that it had to apply for and obtain clearance from the competent authorities of the Forest Department within the specified time and obtain the licenses from such other authorities concerned.

14. In the course of time, the 2012 Rules were introduced and a clear procedure was set up for issuance of necessary clearances/licenses in respect of saw mill unit existed prior to 30.10.2002. A different procedure for the units which were sought to be set up after the said date was also provided therein. It was accordingly, that separate forms were also prescribed for issuing licenses viz. Form No. IIA for licence to be issued in respect of sawmill unit existing prior to 30.10.2002, whereas Form No. IIB in respect of new unit set up after the said date.

15. From the verdict passed by the Apex Court, the relevant Rules and the separate forms prescribed, it is quite discernible that the prohibition is virtually with reference to the property concerned [which is situated in close proximity to the forest area] and not with reference to the owner of the property. In other words, if there is any prohibition in respect of a person from starting a sawmill [but for sanction given to start a wood based industry as per the judgment passed by this Court] that will continue to be operative with reference to the property concerned and any clandestine deal or such other conveyances, even if valid, will not make the assignee eligible to continue or start sawmill, which right the assignor did not have.

16. The contention of the Owner of the sawmill [appellant in W.A. No. 1746 of 2015] is that the observation/direction of the learned single Judge in paragraph 10 of the judgment dated 03.04.2001 in O.P. No. 27582 of 2000 that The 1st and 2nd respondents will ensure that the 3rd respondent is conducting only a furniture unit in Sy. No. 502/4, 5, 6 & 7 of Panachikkadu village, Kottayam District and that the 3rd respondent does not conduct any saw mill as alleged by the petitioners is not a universal declaration, but applicable only to the parties therein. It is contended that, for a furniture unit, no consent of Pollution Control Board was necessary, which in fact was required only in the case of sawmill.

17. In this context, it is to be noted that the petitioner in O.P. 27582 of 2000 was having no case that he was running a sawmill or that he wanted to set up any sawmill. In so far as no sawmill was in existence as on 30.10.2002 - the crucial/appointed date mentioned by the Apex Court, no sawmill could be established in the property of the said petitioner after the said date, though he was entitled to run the furniture unit, for which consent of the Pollution Control Board was not necessary. This made the learned single Judge to make it clear point blank, that no sawmill shall function, while granting liberty to run the furniture unit. This being the position, the declaration made by the learned single Judge in paragraphs 8 and 16 of the common judgment under challenge, that the judgment in O.P. No. 27582 of 2000 will operate only against the vendor of the property and not the vendee is not correct. It is liable to be interdicted, as the said declaration/restriction is akin to a charge on the property. The said declaration stands set aside accordingly.

18. The next point to be considered is with regard to the licence procured by the Owner of the sawmill in Form No. IIA [mentioning of the forms as Form Nos. IA and IB in paragraph 11 of the common judgment appears to be a typing mistake]. Whether it could be an inadvertent mistake on the part of the Forest authorities [without involvement of the Owner/applicant] or whether there was any contribution from his part/Owner in applying for and obtaining Form IIA licence [as if it were a sawmill existing as on 30.10.2002 and hence entitled for protection / continuation of the licence] and whether there was any element of fraud or misrepresentation on the part of the Owner, is the pertinent question to be answered.

19. Mr. James Kurian, the learned counsel appearing for the objector/appellant in W.A. No. 2239 of 2015 submits that the Owner has conceded in paragraph 2 of W.P.(C) No. 4460 of 2014 that the assignor of the property was running a furniture unit, which had became defunct, and it was in the year 2010, that the present Owner purchased the property along with a building situated therein, which housed the furniture unit.

20. Admittedly, the property was purchased by the Owner only on 10.03.2010 as per Ext. P1 sale deed. The description of the property given in the schedule to the sale deed clearly mentions the extent of land and the buildings with electrical fittings - including the right over the deposit made to the KSEB in respect of the Electric meter. Nothing is mentioned in the sale deed with regard to the existence of any furniture unit and no installation/machinery attached to the furniture unit is referred to anywhere. Similarly, no consideration is specified or stated as paid or received in this regard. The Owner himself concedes, as put forth by Mr. E. K. Nandakumar, the learned Senior counsel appearing for him that the furniture unit owned by the vendor of the property had become defunct in the year 2005. This being the position, even the furniture unit was not in existence as on the date of purchase of the property by the Owner on 10.03.2010. The licence from the Local Authority was applied for and granted as per Ext. P2 dated 25.03.2010 just for 7 days, till 31.03.2010, stating that the purpose of the licence was for purchase and sale of wood and for sawing the same. In other words, the licence applied for by the Owner before the Local Authority [after purchasing the property on 10.03.2010] was apparently for running the sawmill, which was simply granted by the Local Authority, which came to be renewed for the subsequent periods till 31.03.2014 as discernible from Ext. P2(a) dated 06.05.2013, without any regard to the law declared by the Apex Court in Godavarman Thirumulpads case [cited supra].

21. After obtaining Ext. P2, the Owner moved the Pollution Control Board for obtaining Consent to Operate the sawmill and the same was granted as per Ext. P3 dated 03.09.2011, with validity up to 30.06.2014. It is stated that the Owner obtained necessary licence for running the sawmill from the Divisional Forest Officer, Kottayam as per Ext P4 dated 06.04.2013 which was valid up to 05.04.2016. It is stated that the Owner was conducting the sawmill, complying with all the statutory requirements prescribed by the authorities concerned.

22. Mr. James Kurien, the learned counsel for the Objector submits that the Owner was not having a consistent case at any point of time and that he was going on making wilful misrepresentation to cater to his requirements, wherever possible. Reference is made to Ext. P11 reply submitted by the Owner in response to Ext. P9 notice issued by the Pollution Control Board. In Ext. P11 reply, it is stated that he was running the sawmill along with his brother, having purchased it from the vendor by name John K. Thomas on 10.03.2010 and that the said unit was being run on the basis of necessary licence from the local authority from 2000 onwards. The relevant portion in Ext.P11 is extracted below for convenience of reference :

I am running a saw mill unit at Paruthumparara, Kuzhimattom P.O, Kottayam in the name and style M/s St. Thomas Timber Industries. The above unit is situated in the property having an extent of 9.67 Ares in Re-survey number 502/4, 502/5, 502/7 and 502/6 in Panachikkadu Village. Myself and my brother purchased the above unit from our predecessor Mr. John K. Thomas on 10.03.2010 by virtue of sale deed bearing No. 4964/2010 of the Sub Registrars Office, Puthuppally. We have also purchased another extent of 8.5 cents (3.34 ares) in Survey No. 502/3-1 adjoining the above property during the year 2011.

The above unit is run in the above property after obtaining the necessary license from the Panachikkadu Grama Panchayath from the year 2000 onwards. The above license issued by the Panachikkadu Grama Panchyath has been periodically extended from time to time. The latest license issued by the above Grama Panchayath is valid upto 31.03.2014.

This is cited as nothing but a total misrepresentation, in the light of the specific averments in W.P.(C) No. 4460 of 2010 [in paragraph 2 and elsewhere including in Ground D] that the owner commenced the sawmill only after purchase in the year 2010.

23. Similarly, reference is made to the counter affidavit dated 20.06.2015 filed by the Owner, [who was the 4th respondent] in W.P.(C) No. 7799 of 2015 [filed by the Objector]. In paragraph 3 of the said counter affidavit, it is conceded that the vendor of the property was running a wood based industry till the date of purchase by the petitioner i.e. 10.01.2010 and that the sawmill was established by him after the purchase; obtained licence from the Local Authority, got Consent to Operate from the Pollution Control Board and the clearance from the Divisional Forest Officer in From IIA in the year 2013, which was valid upto 05.04.2016. The relevant portion of paragraph 3 of the above counter affidavit is extracted below :

.............The erstwhile owner of the property covered by Ext. P1 sale deed, Mr. John K. Thomas was running a wood based industry in the said property till then. In the aforesaid properties, I have established as saw mill unit after obtaining all the requisite licenses from the local authority and also from various other statutory authorities including the Kerala State Pollution Control Board. In 2013, I obtained Ext. P2 license for Saw Mill in Form IIA from the 3rd respondent which is valid up to 05.04.2016. It is submitted that I am conducting the saw mill in the properties in question, complying with all the directions issued by the statutory authorities concerned.

24. Coming back to the sale deed dated 10.03.2010, it is attached with a table in From 1 B [under Rule 3 (1A)], showing the various items conveyed as part of the transaction. Apart from the land, there is a building as well. The land value is shown as Rs.4,35,000/- in Column No. 4. The building No. is given as 3/209A. The year of construction is shown as 1990; the extent is shown as 800 sq.ft. and the value of the building and other improvements shown in Column No. 9 is Rs.1,65,000/-. The total sale consideration has been shown as Rs.6,00,000/- in column No. 10/11. Against Column No. 7, as to the particulars of electrical installation, if any, it has been answered as Nil. Under Column No. 8, the number of electrical points has been shown as 5; the no. of fans has been shown as Nil and the no. of motor pump sets has been shown as Nil. Nowhere has it been stated, that any furniture unit or saw mill was in existence at the time of conveyance. It is now conceded by the learned senior counsel, during the course of hearing, that the furniture unit had become defunct in the year 2005, whereas the property was purchased by the Owner only in the year 2010. Contrary to the above admitted version, something else has been spoken to by Forest Range Officer in his statement. Paragraph 4 of the said statement [in W.A. No. 1746 of 2015] is extracted below, for convenience of reference :

4. The application of the 4th respondent was forwarded to the Divisional Forest Officer, Kottayam the 3rd respondent in this W.P.(C) who is the authorized officer for taking necessary steps in this regard based on the Kerala Forest [Regulation of Saw mills and other Wood based Industrial Units] Rules, 2012. This application has been filed as E3-5410/11 and verified through the Range Forest Officer, Erumely. The Erumely Range Forest Officer submitted Enquiry Report by letter No. E2-452/13 dated 12.02.2013. In the verification report of the Range Officer, Erumely, it is recorded that the unit is fitted with Band Saw 15 HP 1 [LQ/HimHC/1985/104] No., Re-saw 15 HP 1 [LQ/HimHC/1985/104] No. Plainer 5 HP 2 No., Carving Machine 1 HP 1 [LQ/HimHC/1989/3] No. Bandsaw life motor 1 HP 1 [LQ/HimHC/1989/3] No., Grinder 1 HP, 2 No before 30.10.2002. These machineries [except Carving Machine 1 HP 1 [LQ/HimHC/1989/3] No.] are used in the saw mill. The Range Forest Officer reported that the applicant is not involved in any forest offence and the said unit, as saw mill, was found to start functioning prior to 30.10.2002 and hence the unit will be eligible for license. A true copy of the verification report of the Range Forest Officer is produced herewith and marked as Exhibit R3(a).

25. Ext. R3(a) is the report of the Range Forest Officer, addressed to the Divisional Forest Officer, Kottayam; wherein he refers to the enquiry conducted through the Deputy Range Officer and vouches that a sawmill under the name and style as St. Thomas Timber Industries, started in the year 1999 with the installation of Band saw, Re-saw, Plainer, Carving machine, Band Saw Lift Motor, Grinder etc. along with 8 machines installed prior to 30.10.2002 was functioning. It was accordingly that he had certified that licence could be given by the Divisional Forest Officer. The version of the Range Forest Officer, as contained in Ext. R3(a) report and as contained in paragraph 4 of the counter affidavit is an instance of total misrepresentation, as, even the Owner or the assigner did never have any case that any sawmill was functioning in the property prior to 30.10.2002, but for a furniture unit started by the assignor, which even according to the assignee/Owner had become defunct in the year 2005. Similarly, Ext. R3(b) report of the Secretary of the Local Authority, addressed to the Divisional Forest Officer, Kottayam vouches that a sawmill by name Kunnappallil Furniture Industries, Paruthumpara owned by the assignor of Ext. P1 sale deed was functioning in the said property and that the Panchayath had given licence from the year 2001; adding that the establishment, as on the date of Ext.R3(b), was standing in the name of Sri. Mathew Thomas, present Owner to whom the licence was given in 2012 - 13 and that the saw mill was functioning in the said property. It was based on the said reports, that Ext.P4 clearance/licence dated 06.04.213 was issued by the Divisional Forest Officer, permitting operation of the sawmill by the present Owner. Obviously, since the report of the Range Forest Officer and the Panchayath Secretary as to the alleged existence of sawmill even prior to 30.10.2002 is cent percentage contrary to the actual facts and even beyond the case put up by the present Owner, the said reports are not liable to be sustained, nor could have been the basis for granting licence, as if it were a sawmill existing before 30.10.2002, to have protection under the relevant Rules, read with the declarations and directions made by the Apex Court in T.N. Godavarman Thirumulpads case [cited supra]. To put it more clear, Ext. P4 licence applied for and obtained by the present Owner/appellant in W.A. No. 1746 of 2015 [1st respondent in W. A. No. 2239 of 2015] was obviously on the basis of clear misrepresentation/ fraud, and hence not liable to be acted upon. Fraud and justice do not co-exist, as made clear by the Apex Court in United India Insurance Company Vs. Sanjay Singh [(2000) 3 SCC 581] [LQ/SC/2000/520] . In the said circumstances, this Court cannot but hold that Ext. P4 licence and all such other proceedings/clearances obtained by the present Owner, seeking to extend the benefits as if the sawmill were in existence before 30.10.2002, are liable to be set aside.

26. Another point to be considered is with regard to the submissions made by the learned senior counsel, for the Owner during the course of hearing, that continued existence of the Unit is not necessary, to have had the benefit of the Rules 2012/verdict of the Apex Court in Godavarman Thirumulpads case [cited supra] and what is required is only the mere existence of the Unit prior to 30.10.2002, on any date, which requirement is stated as satisfied. This Court finds it difficult to accept the said proposition. There is no case for the present Owner/appellant in W.A. No. 1746 of 2015 that any saw mill was in existence prior to 30.10.2002, as the only unit existing was a furniture unit; which required no consent of the Pollution Control Board as per the relevant provisions of law as it was required only in the case of a sawmill. Even the said furniture unit admittedly had become defunct in the year 2005. The submission made by the learned senior counsel is that there is no much difference between a furniture unit and a sawmill and that the definition of the term furniture unit/wood based industrial unit under rule 2 (r) of the 2012 Rules includes sawmill as well, as defined under Rule 2 (m) of the Rules.

27. As discussed already, there is total ban in starting a sawmill with close proximity to the forest area [within a radial distance of 5 km. from the boundary] as per the declaration of law by the Apex Court and the relevant rules famed in this regard; except on satisfying the requirements as specified. The only concession given is to the sawmills which were in existence before 30.10.2002, which could continue the operation for a further period of six months; within which time, an application had to be submitted to get licence in Form No. IIA, as insisted under the 2012 Rules. In the case of new units proposed to be started after 30.10.2002, various requirements had to be satisfied; upon which alone would the licence be issued in Form IIB of the 2012 Rules.

28. According to the learned senior counsel for the Owner, the law does not distinguish between a sawmill and a wood based industrial unit and no Act/Rule says that operation should be continued in all respects. Even for a unit was started prior to 30.10.2002, the restriction is only with reference to the area and it is to curb the unlicensed activity. As such, it is to be treated as a licence given to the erstwhile unit, with liberty to the present Owner to have it continued. In support of the said contention, it is stated that the unit might have been closed due to various reasons [monetary, labour, electricity and such other issues] and there is no bar in curing the defects or settling the issue and to have it revived. We find it difficult to accept the said proposition as well. Even if we give a wider interpretation, still the benefit for those units which existed before 30.10.2002 cannot be capitalized by the present Owner, in so far as the unit in existence as on 30.10.2002 was only a furniture unit and admittedly no sawmill was there. It is true that the definition of the term wood based industrial unit/furniture unit as defined under 2 (r) includes a sawmill as well, as defined under rule 2 (m) of the Rules. This cannot in any manner absolve the party from satisfying the mandate to start or for running a sawmill in all respects and the specific requirements as prescribed are to be satisfied in the case of a sawmill.

29. Coming to the legal provisions, the Kerala Forest [Regulation of Sawmills and other Wood-based Industrial Units] Rules, 2012 were framed by the Government of Kerala, in exercise of the powers conferred by Sections 39 and 76 of the Kerala Forest Act 1961. Rule 3 of the said Rules imposes certain restrictions for establishment of sawmill and other wood-based units including the necessity to obtain a proper licence from the authorized Officer under the Rules. Sub Rules 3,4,5,6 and 7 are relevant in the context and hence they are reproduced below for convenience of reference :

3. Restriction on Establishment of Sawmill and other Wood Based Industrial Units - (1) ...................

(2)...............................

(3) Every person owning or running a sawmill or any other wood based industrial unit on or before 30th October, 2002 shall apply for a licence under these rules within a period of six months from the date of commencement of these rules.

Provided that any person owning or running a saw mill or other wood based industrial unit on or before the 30th October, 2002, who failed to apply for a licence within six months from the date of commencement of these rules due to inadvertent omission or any other reasonable cause, shall apply for a licence under these rules within a period of six months from the date of commencement of the Kerala Forest (Regulation of Sawmills and Other Wood-based Industrial Units) Amendment Rules, 2015.

(3A) The Advisory Committee shall examine the reason for the delay and the bona fides of the application submitted as per subrule (3) of Rule 3 and forward the same to the Authorised Officer for considering it under the provisions of these rules.

(4) The Authorised Officer may grant a licence under the provisions of these rules to a sawmill or other wood-based industrial unit which was functioning on or before the 30th October. 2002, on the strength of a licence issued by a Local Self Government Institution or a licence issued by the Department of Factories and Boilers. Government of Kerala, with the installed capacity permitted as per the licence valid on or before the 30th October, 2002.

(5) No sawmill or other wood based industrial unit established after 30th October. 2002 except the sawmill or other wood based industrial unit owned by the Government or exclusively using rubber wood or the small scale furniture unit, shall be granted licence to function within a radial distance of five kilometres from the nearest boundary of any forests owned by Government and having an extent of and above forty hectares:

Provided that the above restriction shall not apply to a sawmill or other wood based industrial unit which is functioning within a radial distance of five kilometres from the boundary of Reserved Forest areas which were transferred by Government for non forestry purposes and non revertible forest lands which have not been disreserved by a notification.

(6) The sawmill or other wood based industrial unit which has been functioning on the date of commencement of these rules under the licence issued by a Local Self Government Institution [or the Department of Factories and Boilers, Government of Kerala] may continue to function till a decision is taken by the Authorised Officer on the application for licence under Rule 7.

(7) The Authorized Officer may, on receipt of an application for licence, grant a temporary licence subject to the general and special conditions stipulated under these rules and allow any sawmill or wood based industrial unit which was functioning as on 30th October. 2002 under the licence issued by a Local Self Government Institution [or the Department of Factories and Boilers, Government of Kerala] to continue to function with the machinery and equipments available as on 30th October, 2002, till a final decision is taken on the application for licence.

30. Rule 4 (1) of the 2012 Rules stipulates that no licence can be given to a sawmill and other wood-based industrial unit established within the radial distance of 5 k.m. from the boundary to the forest owned by the Government, except for those units which were established and running on or before 30.10.2002 and such other units which are exempted under Rule 3 (5). Sub Rule 2 of Rule 4 specifies the conditions for granting licence to sawmill and woodbased industrial units, which were functioning and existing under the licence issued by the local authority within the radial distance of 5 k.m. from the boundary of the forest owned by the Government on or before 30.10.2002. Rule 9 stipulates that the special terms and conditions applicable for grant of licence to a sawmill and other wood-based industrial unit. The licence so issued shall also be subject to the special terms and conditions provided therein for various categories specified in Schedule A, adding that no sawmill and small scale furniture unit shall be located in the same premises, unless they were existing together in the same premises prior to 30.10.2002.

31. From the above, it is quite evident that some concession was intended to be given to the units established and were running as on 30.10.2002. It was in the said circumstances, that benefit was given to the erstwhile owner of the property to the requisite extent, to run the furniture unit as stipulated under paragraphs 9 and 10 of the judgment dated 03.04.2001 in O. P. No. 27585 of 2000, subject to the rider that no sawmill shall be permitted to be operated. The said rider was placed with reference to the relevant Rules and the nature of the unit set up and run by the erstwhile owner as on 30.10.2002. Admittedly, since it was only a furniture unit and not sawmill, which required the clearance of the Pollution Control Board, the declaration and direction given by the learned single Judge is obviously with specific reference to the location where the unit is situated [admittedly within 5 k.m. from the boundary of the Government Forest] and this being the position, the said direction very much operates against assignee/present owner [appellant in W.A. No. 1746 of 2015]. This is more so in view of the mandate of Section 146 read with Order XXI Rule 16 and the explanation thereunder under the Code of Civil Procedure. The said provisions are extracted below, for easy reference :

Section 146

146. Proceedings by or against representatives : Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.

O XXI Rule 16

16. Application for execution by transferee of decree : Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder Provided that where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the trasnferor and the judgmentdebtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution.

Provided also that, where a decree for the payment of money against two or more persons has been tansferred to one of them, it shall not be executed against the others.

32. Section 146 of the Code of Civil Procedure provides that the proceedings that may be taken against any person, can be taken against any other person claiming under him as well. It was made clear by the Apex Court in Zila Singh Vs. Hazari [AIR 1979 SC 1066 [LQ/SC/1979/155] ] that even in the case of a pre-emption decree, the decree could be executed by an assignee of the property in view of the mandate under Section 146 of the CPC. Referring to the above provision and the judgment of the Apex Court along with such other aspects and the scope of Section 52 of the Transfer of Properties Act, a learned single Judge of this Court held in Chothy Theyyathan Vs. John Thomas [1997 (1) KLT 464] that the assignor or a legal representative is bound by the decree of injunction obtained against the assignor or predecessor in interest.

33. This being the position, the contention of the present owner/appellant in W.A. No. 1746 of 2015 that the judgment passed by the learned single Judge in O.P. No. 27585 of 2010 holding that no sawmill shall be permitted to be operated in the property is not applicable to him, but for to parties to the said judgment, is not correct or sustainable. The said declaration/rider goes along with the rider, it being situated within the prescribed distance.

34. In the light of the above discussion, we are of the view that the appellant in W.A. No.2239 of 2015 is entitled to succeed and the appellant in W.A. No. 1746 of 2015 has necessarily to lose. Accordingly, the judgment passed by the learned single Judge, to the extent it is challenged in W.A. No. 2239 of 2015, stands set aside. Ext. P4 licence issued by the Divisional Forest Officer, Kottayam and the subsequent renewal and clearance given by the Local Authority and the Pollution Control Board also stand set aside. It is declared that the petitioner in W.P.(C) No. 4460 of 2014 [appellant in W.A. No. 1746 of 2015] is not entitled to get the licence renewed, as if it were a sawmill unit existing prior to 30.10.2002, to have the benefit/concession provided under Rule 6(1) of the 2012 Rules. W.A. No. 2239 of 2015 stands allowed. W.A. No. 1746 of 2015 stands dismissed.

35. Now comes the question of Cost. Cost is to follow the cause. As mentioned already, a total misrepresentation has been made by the present Owner in the memorandum of writ petition [W.P.(C) No. 4460 of 2010], in paragraph 2 and elsewhere, including in Ground D, and also in paragraph 3 of the counter affidavit dated 20.06.2015 filed by him in W.P.(C) No. 7799 of 2015 [who was the 4th respondent in the said Writ Petition filed by the Objector/appellant in W.A.2239 of 2015] that the Unit was in existence before 30.10.2002. Misrepresentation was made in the application seeking for licence before the Divisional Forest Officer leading to Ext. R3(a) report of the Range Forest Officer [produced in W.A. 1746 of 2015] and so also in the application preferred for getting consent from the Pollution Control Board, as revealed from paragraph 2 of the report filed by the Pollution Control Board in W.P.(C) No. 4460 of 2014. Filing of false affidavit/making misrepresentation before Court amounts to contempt of Court, which is liable to be taken serious note of, as held by the Apex Court in Dhananjay Sharma Vs. State of Hariyana [1995 (3) SCC 757 [LQ/SC/1995/608] = AIR 1995 SC 1795 [LQ/SC/1995/608] ].

36. Considering the question whether there was any role or contribution from the part of the present Owner in obtaining Form IIA licence from the Divisional Forest Officer [as if it were a sawmill unit existing prior to 30.10.2002] or was it an inadvertent mistake on the part of the authorities in having issued the licence in Form IIA [instead of Form IIB as applicable for unit which was set up after 30.10.2002], it will be worthwhile to have a look into the report dated 13.06.2014 filed by the Kerala State Pollution Control Board in W.P.(C) No. 4460 of 2014. Paragraph 2 of the said report is relevant and hence, it is extracted below :

2. As per the minutes of the meeting held on 25.01.2011 and directions from this office, the petitioner had submitted an application for operating a saw mill vide application dated 03.08.2011. This application was to operate an existing saw mill in Sy. No,502/4, 502/5, 502/6 and 502/7 of Panachikkad Village, Kottayam Taluk in Kottayam District. Accordingly, consent to operate the saw mill was issued on 03.09.2011 with validity upto 30.06.2014. Copy of the consent issued is produced herewith and marked as Annexure R2(b).

37. From the above, it is quite evident that the application preferred on 03.08.2011 itself was to operate an existing sawmill in the property concerned and it was accordingly, that Ext. R2(b) Consent to Operate the sawmill was given on 03.09.2011 with validity upto 30.06.2014 [which is Ext. P3 in the Writ Petition]. This being the position, the present Owner could never plead ignorance in connection with the mischief done. Almost similar is the modus operandi in pursuing the matter before the Forest authorities and the Local Authority as well, leading to Ext. R3(a) and Ext.R3(b) reports [submitted by the Forest Range Officer and Secretary of the Local Authority respectively] as discussed above, giving a totally distorted picture as to the factual situation.

38. The present Owner [appellant in W.A. No. 1746 of 2015 and 1st respondent in W.A. No. 2239 of 2015] was enjoying the fruits of misrepresentation all throughout, by running the sawmill, which was legally forbidden. Since we have arrived at a finding that Ext. P3 consent from the Pollution Control Board as well as Ext. P4 licence from the Divisional Forest Officer, Kottayam were applied for and obtained as if the saw mill were in existence on or before 30.10.2002 [claiming concession in terms of Rule 6 (1) of the 2012 Rules] and since it involved an element of fraud, we find it appropriate to mulct cost upon the petitioner in W.P.(C) No. 4460 of 2016 who is the appellant in W.A. No. 1746 of 2015 all through out, in respect of both the writ petitions/appeals. Considering the totality of facts and circumstances, we restrict ourselves and fix the total cost as Rs.1,00,000/- [Rupees One lakh only]. The appellant in W.A. No. 1746 of 2015 is directed to remit the cost as ordered above to the Chief Ministers Distress Relief Fund within one month from the date of receipt of a copy of this judgment. We direct the Registry to forward a copy of the judgment to the Principal Secretary to the Department of Finance, Government of Kerala, Thiruvananthapuram for information and realization of cost.