Before :- B.P. Jeevan Reddy and M.K. Mukherjee, JJ.
Reported in JT 1995(6) SC 485 = (1995) 6 SCC 363 = AIR 1996 SC 149. 1995 AIRSCW 3847 .
B.P. Jeevan Reddy, J. - Leave granted. Heard counsel for the parties.
2. These appeals arise from a judgment of the Himachal Pradesh High Court disposing of eight writ petitions together.
3. Katha is a necessary ingredient in pan and pan masales. Katha is derived from the khair tree. The central portion of the tree is used for this purpose. These trees are found in considerable number in the State of Himachal Pradesh. They are also found in other State but it appears that one after the other, various State have banned the cutting of khair trees, with the result that those intending to manufacture katha have been flocking to Himachal Pradesh over the last few years.
4. Till the year 1975, katha was being manufactured in the State of Himachal Pradesh only 'bhattiwalas'. Since the manufacture of katha requires extremely cold conditions, it is stated, the manufacture of katha was being undertaken in bhatties only during the winter season. In the year 1975, however, a mechanised unit was established in the State by Shankar Trading Company for the manufacture of katha. The manufacture of khatha can go on around the year in a mechanised unit. The mechanised unit consumes for larger quantities of khair wood than all the bhatties put together.
"(i) To act as the focal point for dissemination of information regarding programmes of Government assistance and incentives to entrepreneurs.
(ii) To receive all application for setting up of factories in medium and large scale sector.
(iii) To process the applications for establishment of new industries and select projects for Government approval.
(iv) To arrange all necessary assistance required for the successful implementation of approved projects from various Govt. Departments and to act as the channel of correspondence and the coordinating agency between the entrepreneurs and various concerned Govt. Departments.
(v) To review the progress of approved projects.
(vi) To recommend necessary changes in the Government policy regarding Industrial Development in the light of experience gained.
(vii) Such other matter as the Government may refer or delegate to the Authority from time to time."
6. On November 29, 1990 IPARA was abolished by the Government. It appears to have been revived later. By Notification dated September 3, 1993, the President of India (Himachal Pradesh was then under the President's rule) reconstituted IPARA with a more expansive membership. The terms of reference and the activities to be undertaken by the IPARA, however, remained the same as were contained in the Notification dated May 13, 1977. It is stated that during the period IPARA was not in existence, the Director of Industries, Himachal Pradesh was looking after that work. Applications received from entrepreneurs proposing establishment of industrial units in Himachal Pradesh were being processed in the first instance by IPARA and during the period when IPARA was not in existence, by the Director of Industries.
8. As indicated in the Table, the applications made by these units were considered by the sub-committee of IPARA, which granted "approval' to all the applicants. Since the said "approval" was supposed to be provisional in nature, all the proposals were put up for fuller consideration before the full committee of IPARA. The full committee met on August 28, 1993 and decided to recommend units at Sl. Nos. 1 to 3 and 5 to 7 for government's approval. It rejected the proposals of others including the unit at Sl. Nos. 4 and 8 in the Table on the ground that they failed to take any steps to set up the factories pursuant to sub-committee's approval. The matter was then placed before H.E. the Governor.
10. Just about the time the Governor (Government) was taking his decision, Writ Petition No. 1455 of 1993, came to be filled by Shri Yogendra Chandra, M. L. A. for issuance of an appropriate writ restraining the Government from permitting the establishment of any katha units in the State on the ground that such establishment would lead to indiscriminate felling of khair trees which would have a deep and adverse effect upon the environment and ecology of the State. He submitted that the raw material available in the State (khair trees) for manufacturing katha is not sufficient to sustain the proposed Industries, as many as fifteen in number, and hence no permission should be granted for new units. Soon afterwards, Shankar Trading Company, the existing mechanised unit, filed Writ Petition No. 1475 of 1973 for an appropriate writ restraining the Government of Himachal Pradesh from granting permission for establishment of any new unit on the ground that the raw material available in the State is not adequate to sustain any new units. According to this petitioner. the entire raw material available is hardly sufficient to meet its own requirement and the requirement of bhattiwalas. It relied upon an agreement entered into with the Government of Himachal Pradesh whereunder fifty per cent of the raw material extracted in a year has to be sold to it.
11. Soon after the Governor's decision aforementioned was communicated to the concerned parties, three writ petitions came to be filed by the units at Sl. Nos. 5 to 7 in the aforementioned Table, viz, Writ Petition No. 1576 of 1993, by Dev Bhoomi Industries, Writ Petition No. 1590 of 1993, by Ganesh Wood Products and Writ Petition No. 145 of 1994, by Naman Wood Products. Two other Writ Petitions, Nos. 1479 of 1994, and 611 of 1994, were filed by Indian Wood Products and Chander Katha Products. There was yet another Writ Petition (1489 of 1993), filed by one Ved Prakask espousing the cause of Bhattiwalas.
12. After hearing the parties and perusing the relevant records, the High Court dismissed Writ Petitions Nos. 1455 of 1993, and 1475 of 1993,filed by Shri Yogendra Chandra and Shankar Trading Company respectively. It allowed Writ petitions Nos. 1576 of 1993, 1590 of 1993, and 145 of 1994, and quashed the orders of the Government refusing permission to these three persons to establish their units. So far as the writ petition filed by Indian Wood Products and Chander Katha Industries (Writ Petitions Nos. 1479 of 1993 and 611 of 1994), are concerned, they were allowed with a direction to the authorities of the State to reconsider their case in the light of the (Sic), preferred by Yogendra Chandra and S. L. P. (C) Nos. 11086-11089 of 1995, by Shankar Trading Company against the judgment of the High Court.
13. The learned Additional Solicitor General, Shri V. R. Reddy, submitted that the provisional registration or "approval", as it is called by IPARA, did not confer any right upon any of the units inasmuch as the said "approval" was subject to final approval by the Government. The Governor has taken into consideration the availability of raw material in the State and arrived at the conclusion that it can sustain only three units viz., Doon Katha, Orient Herbs and Sagar Katha besides the existing one. Of these three units, Doon Katha is a very small units; its consumption is almost as much as that of a bhatti. Thus, in truth, only two units have been permitted. It is true that the IPARA recommended the case of six units, viz., the three units aforesaid and Ganesh Wood Products, Naman Wood Products and Dev Bhoomi Industries but the Governor did not agree with the said recommendation and selected the first three units applying the principle 'first come, first served'. No valid objection can be taken to the orders of the Government since they are conceived in public interest keeping in view the availability of the raw material. The learned Additional Solicitor General submitted that the High Court exceeded the well recognised constraints of writ jurisdiction in taking upon itself the determination of the availability of raw material and on that basis quashing the orders of the Government.
14. Shir K. Madhava Reddy, learned counsel for Shri Yogendra Chandra submitted that the High Court was not justified in holding that the appellant Yogendra Chandra cannot be "accepted as a public spirited citizen approaching this Court to protect the public interest", merely because he was not able to place before the Court reliable data in support of his allegation of illicit felling of trees in the past. Learned counsel contended that while rightly holding that there was no evidence of collusion between Yogendra Chandra and Shankar Trading Company, the Court erred in not entertaining his writ petition as a bona fide public interest litigation.
15. Shri P. P. Rao, learned counsel appearing for Shankar Trading Company submitted that the raw material available in the State is not sufficient to feed any new units and that this fact has been repeatedly brought to the notice of the Government by the Chief Conservator of Forests, who must be deemed to be the person fully aware of the true situation regarding the availability of raw material. Learned counsel submitted that the permission granted to the respondent-units is in violation of the provisions of several statutes, both Central and State.
16. Shri Dushyant Dave, learned counsel appearing for Ganesh Wood Products (one of the respondents in these appeals) submitted that after the introduction of the New Industrial Policy (Liberalisation Policy) and the notification issued in that behalf by the Government of India, a citizen of this Country has an unquestioned and an absolute right to establish a small-scale industry at any time, at any place and of whatever capacity he may choose. He submitted that Katha Industry is not governed by Industries Development (Regulation) Act, 1951, (I. D. R. Act) hence no licence or permission is necessary from the authorities under the said Act for establishing a katha factory, more so in the small scale sector. The Government's duty is merely to register the units being set up. It is bound to register any and every application for establishing a small scale industry and it has no power to cancel, revoke or disapprove such registration. Learned counsel submitted further that on the basis of approval granted by IPARA, the Government granted registration to Ganesh Wood Products on June 21, 1993, and has communicated the same to it. Indeed, by a subsequent communication dated 18th August, 1993, the Government restricted its capacity to 3600 metric tons (2400 cu. meters). Even the full IPARA meeting held on August 28, 1993, recommended the case of Ganesh Wood Products. The rejection by the Governor is based on no reasons and is, therefore, liable to be set aside as an arbitrary decision. Learned counsel relied upon certain material in support of his proposition that the particulars of raw material available in the State is more than sufficient to sustain not only the three units permitted by the Governor but also the three units recommended by the IPARA in its meeting held on August 28, 1993. He submitted that bona fides of Shri Yogendra Chandra are suspect and that he has been put up really by Shankar Trading Company. So far as Shankar Trading Company is concerned, the learned counsel submitted that it is seeking to merely ensure that all the raw material in the State is reserved for itself by excluding all other units. It is submitted that in the interest of growers of khair trees and in the interest of public and the State of Himachal Pradesh, new units must be allowed to come up.
4. The recommendations of IPARA made in its meeting held on August 28, 1993, were considered decisions arrived at after taking into consideration all aspects of the matter. It applied a legitimate criteria in distinguishing Ganesh Wood Project, Naman Wood Projects and Dev Bhoomi Industries from others. IPARA was of the opinion that no new units should be permitted but those units that have already acted upon the approval granted by IPARA should be allowed to come up and function. The Governor's action is devoid of any reasons. The alleged protest of Chief Conservator of Forests contained in his letters are of no significance in view of the fact that though he was a member of IPARA, he never recorded his protest to any of the approvals granted to several units.
18. Learned counsel further pointed out that khair trees were included in the Schedule to the Himachal Pradesh Forest Produce (Regulation of Trade) Act, 1982, Notification dated April 30, 1991, but that the same was deleted by another Notification issued on November 18, 1991. In this view of the matter, the learned counsel contended, the Governor's action is unsustainable in law.
19. Mrs. Roxana Swamy, learned counsel appearing for the Naman Wood Products (another respondent) supported the contentions of Shri Dave and Shri Gopal Subramaniam.
20. Shri Arun Jaitley, learned counsel appearing for Indian Wood Products and learned counsel for Chandra Katha respectively (respondents) submitted that they too had acted upon the approval granted by IPARA and have invested substantial amounts in acquiring the land and setting up the units and if only they had been given an opportunity, they would have established their contention. They supported the submissions of Shir Gopal Subramaniam and Shri Dave.
21. Shri Dholakia and Shri M. S. Ganesh appearing for Sagar Katha (yet another respondent) disputed the several contentions raised by the learned counsel for the appellants and submitted that the Governor has rightly granted permission to Sagar Katha and that there are absolutely no grounds to interfere with the same at the instance of Yogendra Chandra or Shankar Trading Company. Shri Balakrishnan, learned counsel for Orient Herbs advanced submissions on the same lines.
22. Katha industry is not in the schedule to the Industries Development and Regulation Act. The provisions regulating the establishment of industries contained in the said Act, therefore, have no application to this industry. There is no corresponding enactment made by the legislature of the State of Himachal Pradesh governing the establishment of industries similar to I. D. R. Act. At the same time, by virtue of Entry 24 of List-II of the Seventh Schedule to the Constitution,"industries"-subject, of course, to the provisions of Entries 7 and 52 of List-I is a matter within the exclusive province of the State. In the absence of an enactment, the executive power of the State extends to the said subject matter (Raj Sahib Ram Jawaya Kapur v. State of Punjab, 1955(2) SCR 225. The Himachal Pradesh Government has not only evolved a forest policy but has also framed certain guidelines with a view to encourage the industrialisation of the State. It has constituted IPARA, as far back as 1974, with the same purpose. The functions of the said authority have been the same throughout, viz., to act as the focal point for dissemination of information regarding programmes of Government assistance and incentives to entrepreneurs generally. In particular, it is empowered "(ii) to receive all application for setting up of factories in medium and large scale sector, and (iii) to process the application for establishment of new industries and select projects for Government approval". Indubitably, Clause (iii) takes in industries in small scale sector as well. The authority is further required "(iv) to arrange all necessary assistance required for the successful implementation of the approved projects from various Government departments and to act as the channel of correspondence and as the coordinating agency between the entrepreneurs and various concerned Government departments". In short, this authority is to act as the nodal agency. It is also expected to review the progress of approved projects and to recommend necessary changes in Government policy regarding industrial development in the light of experience gained.
23. We may reiterate that IPARA is not established under any statutory provision and its acts and proceedings do not have any statutory sanction. The idea is to encourage new industries and to provide necessary assistance to them. The more relevant function of the authority from the point of view of the controversy herein is the power, or function, as it may be called, "to process the applications for establishment of new industries and select projects for Government approval". This clause makes it clear that the function of the authority was not to grant approval for any industry but only to process their applications and to select projects for Government's consideration; it was for the Government to approve them. It is equally relevant to note that the Notification constituting or reconstituting the IPARA do not say anywhere that no industry can be established unless it applies to IPARA or unless its application is processed by IPARA, nor do they say that unless approved by the Government, no industry can be established in the State. This means that if there are any enactments or other statutory provisions governing the establishment of industries, they have to be complied with by the intending entrepreneurs. The IPARA or the Government of Himachal Pradesh propose neither to add to those provisions nor do they purport to detract therefrom.
24. Evidently because it was in their interest, the fifteen units proposing to establish katha factories in Himachal Pradesh (including the units concerned in this batch of appeals) applied to IPARA and during the period the IPARA was not in existence, to the Director of Industries for approval of their projects. They knew full well that if their applications are approved by the Government, they will have several advantages in the matter of acquiring land, obtaining power connection, obtaining water supplies and in various other matters relevant to successful establishment and running of the industry. Now, it cannot be denied that the power to approve includes the power to decline approval and the power to disapprove. And that is all that has happened now. The Government of Himachal Pradesh has chosen to approve only three units, viz., Doon Khata, Sagar Khata and Orient Herbs and it has refused to approve the rest including Ganesh Wood Products, Naman Wood Products and Dev Bhoomi Industries (Hari Krishan). So far as Indian Wood products and Chander Katha Products are concerned, their cases were not even put to the Government because their cases were rejected even by the IPARA. When this is done, it is argued by learned counsel Shri Dave, appearing for Ganesh Wood Products that the Government has no power to decline the approval or to disappove the provisional approval granted by IPARA. Learned counsel contended that the Government can only register a unit but it cannot de-register it nor can it refuse to register it. We cannot agree. The notifications constituting IPARA, whether of 1974 or of 1993, do not speak of registering unit. The argument of learned counsel, therefore, means that any and every application for establishment of new industry must necessarily be approved by the Government and that the Government has no power to refuse to approve nor can it disapprove any provisional approval granted earlier. We are unable to understand or appreciate the logic behind this argument, more particularly, in view of the further contention of the learned counsel that since the I. D. R. Act does not govern the establishment of this industry and also because of the liberalisation policy introduced by the Central Government in 1991, no permission of any authority whatsoever is required for establishing the katha industry in small scale sector. If the contention of the learned counsel is that virtue of the liberalisation policy or by virtue of the position of law obtaining as on today- as understood by him-a citizen of this country has an absolute and unbridled freedom to establish any small industry anywhere in the country, he is free to do so. The impugned order of the Government does not say that he cannot. It does not prohibit him from establishing the industry. All that the Government says, and means, is that if any one wants to come to it or to the authority established by it, viz, IPARA, for approval then he must submit to the regimen established by the Government in that behalf and to its policies. While approving the projects, it is certainly open to the Government to say that having regard to the availability of the raw material it shall not approve more than a particular number of units in a particular industry or of more than a particular capacity. It is entitled to say that the available raw material in the State should be exploited in an even and balanced manner keeping in mind the availability of the raw material in the years to come. It is entitled to make an estimate of the raw material available from the Government sources as also from the private sources and say that the raw material so available can feed only so many industries and no more.
25. We may make it clear that we do not approve or accept the contention urged by Shri Dave that as on today there is no law preventing any person from establishing any industry anywhere so long as it is not governed by the I. D. R. Act. That question does not arise in these writ petitions and appeals. All that we have stated is that if that is what any person thinks, it is for him to act according to his conviction and take the consequences, if any, of his action.
26. In short, the position is this : the impugned order of the Government of Himachal Pradesh (made by the Governor of Himachal Pradesh) on September 3, 1993, is not traceable to any statutory provision or statutory power. It is made in exercise of its executive power. While action in its executive capacity, the Government is entitled to lay down policies and preferences in the interest of State, its economy and keeping in view the National Forest Policy, Himachal Pradesh Forest Policy and the Central and State enactments relevant in that behalf. The only obligation of the State in such an event would be to extend a fair and equitable treatment to all persons coming before it. Having approached the IPARA and the Government of approval, the respondents (persons intending to set up katha units) cannot-when the approval is refused- turn round and say that the Government has no power to refuse approval. They cannot be heard to say so. It is not as if - be it reiterated - the Government has prohibited the said respondents from establishing their factories in the State. The approval and non-approval or disapproval, as it may be called, is administrative in nature. If anyone wishes to seek approval from the Government, he has to abide by the Government's policies and guidelines evolved or enunciated in that behalf.
1. Wildlife Protection Act, 1972.
2. The Water (Prevention and Control of Pollution) Act, 1974 (amended in 1978, 1988 and later).
3. The Forest (Conservation) Act, 1980 (as amended in 1988).
4. The Air (Prevention and Control Pollution) Act, 1981 (as amended in 1988).
6. The Industries Development and regulation Act, 1951 (as amended from time to time) - to the extent it is applicable.
1. The H. P. Private Forest Act, 1954.
2. The H. P. Land Preservation Act, 1978 and the Rules made thereunder.
3. The Himachal Pradesh Forest Produce (Regulation of trade) Act, 1982.
4. Various Municipal/Panchayat and Development Acts, wherever applicable."
"An Act to provide for the protection and improvement of environment and for matters connected therewith.
And whereas it is considered necessary further to implement the decision aforesaid in so far as they relate to the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plant and property."
"Environment' includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property."
(iv) restriction of areas in which any industries, operation or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;....."
31. Section 6 confers upon the Central Government the power to make rules in respect of all or any of the matters referred to in Section 3. Section 6(2)(e), in particular, empowers the Central Government to make rules providing for "(e) the prohibition and restrictions on the location of industries and the carrying on of process and operations in different areas."
(v) The biological diversity of the area which, in the opinion of the Central Government needs to be preserved.
(vii) Net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted."
33. These provisions establish and emphasise the power of the Central Government to regulate the location of industries which also includes the power to prohibit their establishment as well. Having regard to the objectives underlying the Act and the alarming diminution of forest cover in the country, the said provisions should be understood not so much as conferring power on the Central Government but as creating an obligation upon it to exercise those power for achieving the objectives underlying the Act. It is absolutely essential that the Central Government issues orders under and as contemplated by Rule 5, if not already issued.
34. The Himachal Pradesh Forest Produce (Regulation of Trade) Act, 1982 contains elaborate provisions regulating sale, purchase, transfer and trade of forest produce including the forest produce from private lands. It is, of course, true that khair trees were first included in the Schedule to the Act in April 1991 and deleted in November 1991, but it can always be included in the schedule again, if the Government thinks it necessary, as contemplated by Section 18 of the Act. The Act permits Government monopoly in the matter of sale of forest produce covered by the Act.
35. The Himachal Pradesh Land Preservation Act, 1978 confers extensive powers to regulate, restrict, prohibit cutting of trees and their removal from notified areas. So does the Himachal Pradesh Private Forests Act, 1955 contain elaborate provision empowering the State Government to prohibit the cutting and felling the trees in the specified private forests. The provisions of these Acts have a crucial bearing on the establishment and running of forest based industries.
36. It is well to remember that manufacture of katha requires cutting of khair trees. Only the central portion of the trunk of the tree is used for the manufacture of katha and the rest is of no use except perhaps as firewood. The more the number of industries, the more pressure there will be for cutting these trees. Himachal Pradesh is a hill State. The considerations of environment and ecology and preservation of forest wealth are absolutely relevant considerations which the Government must keep in mind while devising its policies and programmes. A brief examination of the fundamental significance of forests in the matter of environment and ecology would be in order at this juncture.
The excerpts are drawn from the book "Our Common Future : World Commission on Environment and Development" Published by Oxford University Press in 1987. India was represented on this Commission by its representative Shri Nagendra Singh. The Report was submitted in the year, 1987.
........ many present development trends leave increasing numbers of people poor and vulnerable, while at the same time degrading the environment. How can such development serve next century's world of twice as many people relying on the same environment ?
The other great institutional flaw in coping with environment/development challenges is Government's failure to make the bodies whose policy action degrade the environment responsible for ensuring that their policies prevent that degredation."
"Developing countries face the challenges of desertification, deforestation, and pollution, and endure most of the poverty associated with environmental degradation............. The next few decades are crucial for the future of humanity. Pressures on the planet are now unprecedented and are accelerating at rates and scales new to human experience : a doubling of global population in a few decades, with most of the growth in cities; a five to ten fold increase in economic activity in less than half a century; and the resulting pressures for growth and changes in agricultural, energy, and industrial systems. Opportunities for more sustainable forms of growth and development are also growing. New technologies and potentially unlimited access to information offer great promise ......... Environmental protection and sustainable development must be an integral part of the mandates of all agencies of Government, of international organizations, and of major private-sector institutions. These must be made responsible and accountable for ensuring that their policies, programmes, and budgets encourage and support activities that are economically and ecologically sustainable both in the short and longer terms."
39. Similar views were expressed at the United Nations Conference on the Human Environment held at Stockholm from June 5th to 16th, 1972. We do not, however, wish to burden this judgment with them. Suffice to refer to Article 51-A of our Constitution which makes it a duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.
The writers of history have seldom noted the important of land use. They seem not to have recognized that the destinies of most of man's empires and civilizations were determined largely by the way the land was used. While recognizing the influence of environment on history, they fail to note that man usually changed or despoiled his environment.
How did civilized man despoil this favourable environment ? He did it mainly by depleting or destroying the natural resources. He cut down or burned most of the usable timber from forested hillsides and valleys. He over-grazed and denuded the grasslands that fed his livestock. He killed most of the wildlife and much of the fish and other water life. He permitted erosion to rob his farm land of its productive topsoil. He allowed eroded soil to clog the streams and fill his reservoirs, irrigation canals, and harbours with silt. In many cases, he used and wasted most of the easily mined metals or other needed minerals. Then his civilization declined amidst the despoilation of his own creation or he moved to new land. There have been from ten to thirty different civilizations that have followed this road to ruin ( the number depending on who classifies the civilisations)."
Quoted in "Small is beautiful - A study of economics as if people mattered" by E. F. Schumacher.
41. We may add that in the present-day world, there is hardly any space left for anyone to move from his place to another.
42. This digression was necessary to put in proper perspective the obligation of the State and the significance of the concept of "sustainable development" and "inter-generational equity" * vis-a-vis the legal submissions made on the basis of principles of natural justice, estoppel and so on.
Inter-generational equity means the concern for the generations to come. The present generation has no right to imperil the safety and well-being of the next generation or the generation or the generations to come thereafter.
43. When a person applied for approving his project for establishment of a katha industry, the sub-committee of IPARA communicated its approval clearly envisaging that soon after receiving the said approval, the person concerned should take immediate and effective steps for setting up the industry.
Tilak Bazar, Delhi - 110006.
Subject : APPROVAL OF PROJECT BY IPARA.
1. The letter of approval is valid for a period of 12 months from the date of issue. You shall take effective steps within this validity period for the implementation of the project, if an extension to the period of validity is found necessary you should apply preferably 3 months in advance with full justification for any extension of time sought along with a detailed statements of the steps taken for the implementation of the project.
2. Adequate steps shall be taken to the satisfaction of the Govt. to Prevent Air, Water and Soil Pollution. Such anti-pollution measures to be installed should conform to the effluent and emission standard prescribed by the H. P. State Pollution Control Board. The equipment for anti-pollution measures will form a part of your project report. The design of the equipment will have to be got approved from the H. P. State Pollution Control Board. Further, adequate industrial safety measures as provided in the relevant Act should be made to the satisfaction of the State Government.
3. This letter of approval does not constitute an authorisation under Industrial Development and Regulation Act, 1951, or any other relevant acts of the Govt. of India. Wherever applicable such permission or clearances as may be required under the provisions of such Acts should be separately obtained by you before taking any effective steps for the implementation of the project.
4. Further this approval for project does not imply any commitment whatsoever on the part of the Government to provide finance, raw materials, land etc. or any other assistance. Request for such assistance would be considered separately on merits after you have made the necessary application to the concerned authorities. You are, therefore, advised to initiate the steps, for procurement of land, finance and other assistance as required for the project at your own.
5. You will have to make own arrangement for the procurement of water from the source to the factory site at your own cost. In case you sink a tube well for your unit, you will ensure that it does not upset the water table in that area significantly.
6. Your are required to furnish quarterly progress report until the commencement of production. This report will have to be furnished every quarter ending 31st. March, 30th June, 30th Sept.
7. You will inform this office about the commencement of production.
8. You will notify the vacancies to all the employment exchanges in Himachal Pradesh. These vacancies shall be filled in as per notifications issued by the Department from time to time. You shall have to employ only bona fide residents of H. P. and also trained and technical persons from ITI's RITI's, Polytechnics and Engineering Colleges in the State in your industrial unit. You are further required to give quarterly return regarding employment of Himachal and non-Himachali to the General Manager, Distt. Industries Centre, of your district.
9. You will have to make in built parking facilities within factory area or separately for parking of trucks and other vehicles and these will not be allowed to be parked on National Highway/State Highway/other public utility road.
10. This proposal has been approved without any commitment of availability of Khair Wood by State Government.
11. You will have to raise green belt around the factory premises.
We are hopeful that you will now immediately initiate effective steps to implement this project. In case of any difficulty / assistance required, kindly feel free to get in touch with us. We assure you of our full co-opeartion.
Wishing you and your enterprise a success.
44. The terms of approval are clear enough and we do not think it necessary to set out their substance in our own words.
Paryavaran Bhawan, C.G.O., Complex, Lodi Road, New Delhi, Pin-110 003.
No. 3-13/93-94 Dated : 6th October, 1993.
Subject : Registration of New Katha units - availbility of Khair wood.
I am directed to refer to this Ministry's letter No. 7-4-92-SU dated 18-9-92 (copy enclosed) regarding review of production and disposal of Khair Wood and to say that the information sought has not yet been received by this Ministry. However, it has come to the notice of this Ministry that the State Govt. have issued orders for registration of 15 new katha units for manufacturing of Katha from Khair Wood and is also contemplating to issue more licences for setting up of new units. This is being done without due consideration to the principle of sustainable management of the forest and is not commensurate to the annual yield for Govt. and private forests. This is against our National Forest Policy of 1988, which clearly says that no forest based enterprise, except that at the village or cottage level be permitted in future unless it has been first cleared after a careful scrutiny with regard to assured availability of raw material.
2. It is, therefore, requested that review of the earlier decision taken by the State Govt. in regard to the registration of 15 new units of Katha may be taken keeping in view the availability of Khair Wood in the State as per sustainable annual yield available from Government and private forest area. Action taken in this regard may kindly be sent immediately.
Asstt. Inspector General of Forests."
46. Evidently, this letter was written by Government of India before it was apprised of the action taken by the Government of Himachal Pradesh impugned herein. It is legitimate to presume that similar views must also have been expressed earlier.
Para 5 - sub-para 2(3) Shri Hari Krishan Bajaj, Prop. M/s. Dev Bhoomi Industries, Baddi District, Solan (4) M/s. Naman Wood Products, Tahilwala, District Una and (5) M/s. Ganesh Wood Products, Sansarpur Terrace, Distt. Kangra, H. P., as approved by IPARA sub-committee should not be implemented.
Only units at para 5 sub-para 2(1) Shri Anil Kumar Arya, Pro., M/s. Orient Herbs, Baddi, Distt. Solan (2) M/s. Sagar Katha Factory, Kala Amb, Distt. Sirmour and one small proposal of Bhatti type being set up by Mrs, Sushma Chauhan, a woman entrepreneur at Panota Sahib (para 5 sub-para 1) are approved and be implemented.
48. The decision was communicated to the concerned persons - leading to the filing of sevral writ petitions in the High Court.
(i) National Forest Policy : Para 4.9 of the National Forest Policy states that 'as for as possible", a forest based industry should raise the raw material needed for meeting its own requirement preferably by establishment of a direct relation between the factory and the individuals who can grow the raw material by supporting the individuals with inputs including credit, constant technical advice and finally harvesting and transport services."
(ii) State Forest Policy : Para No 25 of the H. P. State Forest Policy states that " until detailed forest resources, wood production and consumption studies have been carried out to determine wood balances specially of broad leaved species, available at present and in future (projections over a period of twenty years) for various industries, not commitment for supply of raw material should be held out to the wood-based industries. The consequences of proposed moratorium of commercial felling shall also have to be fully kept in view."
(2) Working Plan of Khair trees : Khair trees are not found all over the State. These are confined to the lower belt of H. P. from Sirmaur District in the East to Chamba in the West. All the khair trees in Government Forests have not been enumerated. However, working plans have been prepared in respect of Forest Divisions which prescribe annual yield in terms of numbers of trees and volume and area. The yield is exactly known after carrying out markings and feelings. However, the average annual yield is 2838 cubic metres. It is average of 1990-91 to 1992-93. Periodicity of Working Plans is 15 years. It is not, therefore, possible to furnish information for 30 years.
5. Approval of the State Government : IPARA had initially cleared 14 projects and conveyed to clearance to the respective parties in anticipation of the Government approval. However Government reviewed the decision of IPARA taken in its meeting held on 28-8-1993 and decided that 6 units out of 14 which were recommended by IPARA, only 3 units in order of precedence or receipt of applications be allowed to continue. Accordingly, IPARA withdrew the approval of all units except 3 as allowed by Government.
6. Policy regarding import/export of khair wood from outside the State of Himachal Pradesh : There is no ban on export of khair wood from the State in respect of khair wood obtained from private land. However, the export from the State of khair wood obtained from private land is regulated in terms of the Government's order contained in Annexure-R-19. The khair wood extracted from Government Forest by H.P. State Corporation Ltd. and disposed through open auction is required to be utilised within the State of Himachal Pradesh only.
There is no restriction on the import of khair wood from outside the State."
50. It is clear from the above affidavit that there has been no systematic or a proper survey of the availability of khair wood in the State. The availability of Khair wood is determined on the basis of quantity extracted during the years 1990-91 to 1992-93 in the case of Government forests and 1990-91 and 1991-92 in the case of private forests. It is obvious, and an indisputable proposition, that extraction in a given year or in certain given years is no index of availability. The estimate of availability on the basis of extraction in a given two or three years ' period is bound to be faulty. Extraction in a given year or years may be more or less than the average annual availability.
51. During the years 1992 and 1993, the sub-committee of IPARA seems to have been proceeding on the assumption that so long as there is no commitment on the part of the Government to supply khair wood to the proposed factories, there is no harm in approving any and every proposal that comes before it. This cannot but be termed as a totally faulty and a myopic approach. It is also violative of the National Forest Policy and the State Forest Policy evolved by the Government of India and Himachal Pradesh Government respectively - besides the fact that it is contrary to public interest involved in preserving forest wealth, maintenance of environment and ecology and consideration of sustainable growth and inter-generational equity. After all, the present generation has no right to deplete all the existing forests and leave nothing for the next and future generations. Not keeping the above considerations in mind, it is obvious, has vitiated the approvals granted by the sub-committee of IPARA - apart from the fact that it was not empowered to grant any such approval. The obligation of sustainable development requires that a proper assessment should be made of forest wealth and the establishment of industries based on forest produce should not only be restricted accordingly but their working should also be monitored closely to ensure that the required balance is not disturbed. In this view of matter, we must say that insofar as forest-based industries are concerned, there is no absolute or unrestricted right to establish industries not withstanding the policy of liberalisation announced by the Government of India. The policy of liberalisation has to be understood in the light of the National Forest Policy devised by the Government of India itself and in the light of the several enactments applicable in that behalf, some of which have been referred to hereinbefore. It is meaningless to prescribe merely that the Government need no supply the raw material and that the units will have to get their khair trees/raw material from private land/forests. No distinction can be made between Government forests and private forests in the matter of forest wealth of the nation and in the matter of environment and ecology. It is just not possible or permissible. The National Policy and the Himachal Pradesh Forest Policy do not make any such distinction. The perils of ignoring the above policies and considerations cannot be over-emphasised.
52. We must say that in the light of above considerations, the High Court was not right in observing that Shri Yogendra Chandra cannot be accepted as a public spirited citizen approaching the Court to protect public interest- more so, when it has recorded a simultaneous finding that there is no evidence of collusion between him and Shankar Trading Company (Mahesh Udyog). The credentials of Shri Yogendra Chandra appear to be impeccable. He is not only a member of the Himachal Pradesh Legislative Assembly but also the Governor of the Indian National Trust for Art and Cultural Heritage. He is also the President of the Himalayan Wild Life and Environment Preservation Society. The said organisations may be big or small, may be well-established ones or recently started ones-that is immaterial. Once it is found that he was not acting at the instance of or at the behest of or for protecting the interests of Shankar Trading Company, there was no reason to hold that he was not acting bond fide in approaching the Court to preserve the forest wealth of the State in the interest of environment and ecology. His inability to produce material in support of his allegation of illicit felling in state dose not tell upon his bond fides.
53. We may also mention, even at this stage, that so far as Shankar Trading Company is concerned, there is absolutely no doubt in our mind that it is not entitled to question the approvals granted to new units since there was no indication at any stage that the supplies which it was receiving in the previous years pursuant to the agreement with the Government were going to be affected. Its attempt to stop the new industries from coming up in the State, while enjoying an almost monopoly status in the matter of Khair wood supplies, is certainly a strong factor militating against its bona fides in approaching the Court.
"I desire to add that the time may soon come when the whole sequence of cases based upon promissory estoppel since the war, beginning with Central London Property Trust Ltd. v. High Trees House Ltd., 1947(1) K.B. 130 may need to be reviewed and reduced to a coherent body of doctrine by the Courts. I do not mean to say that they are to be regarded with suspicion. But as is common with an expanding doctrine, they do raise problems of coherent exposition which have never been systematically explored."
55. Though the above view was expressed as far back as 1972, it is no less valid today. The dissonance in the view expressed by this Court in some of it decisions on the subject emphasis such a need. The view expounded in M/s. Motilal Padampat Sugar Mills Company Limited v. State of Uttar Pradesh, 1979(42) SCC 409 was departed from in certain respects in Jit Ram Shiv Kumar v. State of Haryana, 1981(1) SCC 11, which was in turn criticised in Union of India v. Godfrey Phillips India Limited, 1985(4) SCC 369. The divergence in approach adopted in Sri Bakul Oil Industries v. State of Gujarat, 1987(1) SCC 31 and Pournami Oil Mills v. State of Kerala, 1986 (Suppl) SCC 728, is another instance. The fact that the recent decision in Kasinka Trading v. Union of India, 1995(1) SCC 274 is, being reconsidered by larger Bench is yet another affirmation of the need stressed by Lord Hailsham for enunciating "a coherent body of doctrine by the Courts'. An aspect needing a clear exposition - and which is of immediate relevance herein - is what is the precise meaning of the words "the promisee...... alters his position', in the statement of the doctrine. The doctrine has been formulated in the following words in M/s. Motilal Padampat Sugar Mills Co. Ltd.
"The law may, therefore, now be taken to be settled as a result of this decision, that where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee, acting in reliance on it, alters his position, the Govt. would be held bound by the promise and the promisee would be enforceable against Govt. at the instance of the promise, notwithstanding that there is no consideration for the promise and the promisee is not recorded in the form of a formal contract by Art. 299 of the Constitution."
56. What does altering the position mean ? Does it mean such a change in the position of the promisee as a result of acting on the faith of representation of the promissor that compensating him in money would not be just and equitable to him, i. e., a situation where the ends of justice and requirements of equity demand that the promissor should not be allowed to go back on his representation and must be held to it or does altering his position mean doing of some act, big or small, which the promisee does acting on the faith of the representation which he would not have done but for the representation ? In other words, is it enough that the promisee has spent some money or has taken some step acting on the basis of representation, which can be recompensed in money or otherwise ? Is it not ultimately a matter of doing equity and justice between the parties a case of holding the scales even between the parties and deciding whether in the interest of justice and equity the promissor can be allowed to resile from his promise and compensate the promisee appropriately to the promissor ought to be held to his promise and not allowed to go back since such a course is necessary in view of the change in position of promisee ? Our view of the matter is probably evident from the way we have posed the above questions. To wit the rule of promissory estoppel being an equitable doctrine, has to be moulded to suit the particular situation. It is not a hard and fast rule but an elastic one, the objective of which is to do justice between the parties and to extend an equitable treatment to them. If it is more just from the point of view of both promissor and promisee that the latter is compensated appropriately and allow the promissor to go back on his promise, that should be done; but if the Court is of the opinion that the interest of justice and equity demand that the promissor should not be allowed to resile from his representation in the facts and circumstances of the case, it will do so. This, in our respectful opinion, is the proper way of understanding the words "promisee altering his position". Altering his position should mean such alteration in the position of the promisee as it makes it appear to the Court that holding the promissor to his representation is necessary to do justice between the parties. The doctrine should not be reduced to a rule of thumb. Being an equitable doctrine it should be kept elastic enough in the hands of the Court to do complete justice between the parties. Now, can the doctrine of promissory estoppel be put on a higher pedestal than the written contract between the parties ? Take a case where there is a contract between the parties containing the very same terms as are found in the "approval" granted by IPARA(sub-committee) and then the Government resile from the contract and terminates the contract. The promisee will then have to file a suit for specific performance of the contract in which case the Court will decide, having regard to the facts and circumstances of the case and the provisions of the Specific Relief Act, whether the plaintiff should be granted specific performance of the contract or only a decree for damages for breach of contract. It must be remembered that the doctrine of promissory estoppel was evolved to protect a promisee who acts on the faith of a promise/representation made by promissor and alters his position even though there is no consideration for the promise and even though the promise is not recorded in the form of a formal contract. Surely a representation made or undertaking given in a formal contract is as good as, if not better than, a mere representation. All that we wish to emphasise is that anything and everything done by the promisee on the faith of the representation does not necessarily amount to altering his position so as to preclude the promissor from resiling from his representation. If the equity demands that the promissor is allowed to resile and the promisee is compensated appropriately, that ought to be done. If, however, equity demands, in the light of the things done by the promisee on the faith of the representation, that the promissor should be precluded from resiling and that he should be held fast to his representation, that should be done. To repeat, it is a matter of holding the scales even between the parties - to do justice between them. This the equity implicit in the doctrine.
57. The matters before us have to be approached and decided keeping the above principles in mind. The Court should first ascertain what precisely has each the said five respondents (Ganesh Wood Products, Naman Wood Products, Dev Bhoomi Industries, Indian Wood Products and Chander Katha Industries) have done on the basis of and on the faith of the "approval" granted by the IPARA (sub-committee of IPARA ) by the date of the communication of the decision of the Government - and IPARA in the case of two last mentioned units. (The expression"communication" in this behalf should be understood as explained in State of Punjab v. Khemi Ram, AIR 1970 SC 214. After ascertaining the same, the Court shall have to decide whether it is case - separately in case of each of the said respondents - where the Government should or should not be allowed to go back on the said "approval" granted by the IPARA (sub-committee). It is obvious that this decision has to be taken after giving an opportunity to both the parties to adduce material in support of their respective stands. In as much as the High Court has not approached and examined the case from the above standpoint, the matter has to go back. While deciding the appropriate course, it is evident that the Court shall also have to keep in mind the plea of Government that IPARA or its sub-committee was not competent to accord approval and that the power lay only with the Government, as also the plea of the respondents that in the circumstances they believed and acted in good faith that IPARA is but another name for, or a mouthpiece of, the Government. It is equally evident that while deciding where the interests of justice and equity lie, the Court will also take into account, and balance, public interest and the interest of the respondents aforesaid. The Court shall also take into consideration the estimate of raw material (khair trees) and its expected availability - at present and in the years to come - to be made by the Himachal Pradesh Government pursuant to the directions contained herein with the aid of an expert committee. The High Court may give six months time to the Government to arrive at such an estimate and to place it before the Court.
"But when where there is no such overriding public interest, it may still be competent to the Government to resile from the promise 'on giving reasonable notice, which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position' provided of course it is possible for the promisee to restore the status quo ante. If, however, the promisee cannot resume his position, the promise could become final and irrevocable. Vide Ajayi v. Briscoe, 1964(3) All ER 556."
59. It is this aspect which has been elaborated by us keeping in mind the facts and circumstances of this case.
60. It is true that in case of the three units (Ganesh Wood Products, Naman Wood Products and Dev Bhoomi Industries), the full meeting of IPARA (held on August 28, 1993), opined that "it would not be appropriate to rescind the approval keeping in view the progress made in implementation of their projects......", yet it is not clear what exactly had they done by the date of rejection of their proposal by the Government (23rd September, 1993). Even the High Court has not recorded any clear finding on this aspect. All that it said is : "It is apparent that the Units recommended by IPARA were earlier registered with industries Department and have thereafter purchased lands, constructed factory buildings, and/either purchased or placed orders for machinery. In some cases even the raw-material has been purchased." There is no reference to any material in support of the said opinion nor is the case of each of the petitioners separately examined. Probably, the High Court was influenced by the opinion expressed by the IPARA (at the meeting held on August 28, 1993), referred to above. But it would be seen that it too is quite general and vague. Hence, the necessity for the remand to High Court.
61. The facts stated above to establish the imperative necessity of a proper estimate of the availability of raw material, namely, khair wood in the State. We are told that any and every khair tree is not fit for cutting for obtaining katha. Only a tree with a particular girth(20cm. at breast height) yields the optimum quantity or requisite material and is allowed to be cut. Trees with lesser growth are not allowed to be cut as per the Technical Order No. 670 dated 13th August, 1993, issued under the Himachal Pradesh Land Preservation Act, 1978, and the Rules made thereunder. This Order, it may be noted, is applicable to private lands/forests. The State Government should obtain a proper estimate of the khair wood in the State and also to make an estimate of its availability in each of the coming years with the assistance of an expert body to be appointed in consultation with the Ministry of Environment, Government of India. Such an estimate should cover both the Government and private lands/forests and must be arrived at keeping in view the National and State forest policies and the relevant statutory provisions. It is only then one can say, what is the quantity of khair wood available and how many industries it can feed - and upto what capacity. Further, it is on the basis of such estimate that the capacity of the katha factories, at any given point of time, may have to be restricted, if need be. Some of them may even have to be closed if warranted by public interest.
62. We must say that the estimate of availability of raw material arrived at by the High Court is based upon the quantity extracted over a period of two or three year. As pointed out therein above, the quantity extracted in a given year or given years can never be treated as a proper estimate of the availability of the raw material. Hence, the need for a proper and credible survey by an expert body. In this view of the matter, it is not necessary to deal with the criticism mounted by the learned counsel for respondents to the varying estimates of raw material put forward by the Government at various stages of this litigation and to other alleged contradictions in its case from stage to stage.
63. The appeals are accordingly allowed, the judgment of the High Court is set aside and the matters remitted to High Court for a fresh disposal of writ petitions in accordance with law and in the light of this judgment.
64. Pending the passing of final orders by High Court pursuant to these directions, none of the said five units - Ganesh Wood Products, Naman Wood Products, Dev Bhoomi Industries, Indian Wood Products and Chander Katha - shall take any further steps towards setting up the factory. The Status quo as on today shall continue. The Government and all concerned shall take steps to ensure observance of this direction.
65. The Government of Himachal Pradesh shall make a survey and assess the approximate availability of khair wood in the year 1996 and the ensuing years. This shall be done through an expert body to be appointed by the Government. The Government shall be entitled to rely upon the expert committee's report and its own assessment arrived on the basis of such report before the High Court for its consideration as provided in this judgment.
66. No new industry/unit for manufacture of katha shall be approved by the Government pending a final decision by the Government on the question of availability of raw material in the years to come.
67. No order as to costs in these appeals.


RICHARD WILKINSON, RICHARD LEBLANC, RYAN WILSON, JAMES NELSON, JUAN PADILLA, PENELOPE GRAY, NANCY MENDOZA, RODNEY MARTIN, ANDREA DISTIN-CAMPBELL and ORANGE COUNTY FLORIDA, Defendants.
7. Officer-Defendants' Reply to Plaintiffs' Response to Their Motion to Dismiss (Doc. 50), filed November 27, 2017.
With briefing complete, the matter is ripe for review.
This action centers on the death of William Howard (“Mr. Howard”). Mr. Howard died from injuries sustained while in the custody of correctional officers at the Orange County Jail (or the “Jail”), who broke Mr. Howard's neck while relocating him to a different cell within the Jail. His injuries went untreated for more than twenty-four hours, and at 9:10 a.m. on November 20, 2016, Mr. Howard was pronounced dead. His family brought this action, claiming wrongful death and § 1983 claims for Fourteenth Amendment violations, against Orange County, Florida, and various Jail employees. Defendants deny any responsibility.
At 9:52 p.m., a correctional officer found Mr. Howard unresponsive in his cell. (Id. ¶ 50.) He was taken to Orlando Regional Medical Center in critical condition, and pronounced the dead the following morning. (Id. ¶¶ 51-52.) An autopsy determined that Mr. Howard's cause of death was blunt force impact resulting in neck fracture with cervical spinal cord trauma and hypoxic encephalopathy. (Id. ¶ 53.) The medical examiner ruled Mr. Howard's death a homicide. (Id.) Following this ruling, Plaintiff brought this action.
The Complaint proceeds in thirteen Counts. Counts I through IV allege 42 U.S.C. § 1983 claims for excessive use of force against the Officer Defendants (apart from Defendant Nelson). Count V brings a § 1983 excessive force claim against Defendant Nelson-who filmed the use of force incident-premised on Defendant Nelson's deliberate indifference to the excessive use of force. Counts VI through IX assert § 1983 claims against the Nurse Defendants for their deliberate indifference to Mr. Howard's serious medical needs. Count X alleges a municipal liability claim against Orange County, Florida, for delegating final policymaking authority to the Nurse Defendants. Counts XI through XIII aver wrongful death claims against Orange County premised on (XI) battery, (XII) negligent hiring and retention, and (XIII) negligence.
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the plaintiff's complaint. To survive the motion, the complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the plaintiff alleges enough facts to “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The mere recitation of the elements of a claim is not enough, and the district court need not give any credence to legal conclusions that are unsupported by sufficient factual material. Id. District courts must accept all well-pleaded allegations within the complaint and any documents attached thereto as true and must read the complaint in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994) (per curiam).


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Minnesota Med-Tech Companies Helped Shape the State’s Noncompete Law - Trepanier MacGillis Battina P.A.
News that St. Jude Medical, Inc. will soon be acquired by Chicago-based Abbott Laboratories for $25 billion (subject to antitrust review), following Medtronic’s $42.9 billion acquisition of Dublin-based Covidien PLC and overseas headquarters move in 2014, gives one the sense the heydays of Minnesota-headquartered medical device companies may be in the past.
Regardless of the coming industry changes, medical device companies have made a noticeable mark on the state’s law regarding noncompetes, as “[c]ourts have repeatedly recognized that noncompete agreements in the medical device industry serve employers’ important and legitimate interests in long-term customer relationships and preserving goodwill.” Boston Scientific Corp. v. Duberg, 754 F. Supp.2d 1033, 1039 (D. Minn. 2010), (citing Guidant Sales Corp. v. Niebur, No. 01–1772, 2001 WL 1636502, at *7 (D. Minn. Oct. 18, 2001)). In 2009, U.S. District Court Judge Joan Ericksen noted, “Enforcement of noncompete agreements related to the CRM [Cardiac Rhythm Management] device industry has been a frequent subject of litigation.” St. Jude Med. S.C., Inc. v. Ord, Civ. No. 09–738, 2009 WL 973275, at *4 (D. Minn. Apr. 10, 2009).
Before acquisitions, tax inversions, and other strategic moves shifted local med-tech headquarters across state borders and overseas, Minnesota was known as “medical alley.” Medtronic launched the Minnesota medical device industry in 1949 and dozens of spinoff med-tech companies followed suit. By the 2000s, Minnesota was home to hundreds of med-tech companies, including Guidant’s Cardiac Rhythm Management division in Arden Hills, and Boston Scientific, which acquired the now Indianapolis-based Guidant in 2006.
During the industry’s zenith, cutting edge technology, new scientific research and offers of increased pay often lured professionals from one local med-tech competitor to another, thrusting Minnesota med-tech companies into an increased number of lawsuits, especially in the areas of noncompete and nonsolicitation agreements, trade secrets, and unfair competition. For some professionals, the offer to switch companies was irresistible, as Minnesota recruiters promoted the dense cluster of med-tech businesses in the metropolitan area, allowing Minnesotans to change their job without changing their residence. Likewise, the gain of a competitive advantage in the med-tech industry could be extremely profitable for individuals and companies vying to control sales territories and steer purchasing decisions worth millions of dollars.
While numerous high-profile med-tech disputes were litigated, the resulting decisions often became the leading authority interpreting noncompete law in Minnesota. One of the most famous noncompete cases, Kallok v. Medtronic, Inc., 573 N.W.2d 356 (Minn. 1998), established an immediate precedent, after Kallok, a research scientist and senior manager at Medtronic, left to work for a competitor, who had actively recruited him in knowing violation of Medtronic’s noncompete agreement. The Minnesota Supreme Court called that tortious interference, for which attorney’s fees are recoverable. Medtronic was granted injunctive relief enforcing the noncompete agreement and third-party damages in the form of attorney’s fees, as the court determined recruiting companies were required to investigate and exercise due diligence regarding the effect and scope of any potential employee’s noncompete agreement. See also, Medtronic, Inc. v. Hughes, No. A10–998, 2011 WL 134973 (Minn. Ct. App.2011) (reinforcing damages available under Kallok when a third-party employer interfered with employee’s noncompete agreement by employing him in a department directly prohibited by the noncompete agreement).
Four years later, Medtronic was also responsible for a pair of decisions that addressed the question of choice of law provisions, and whether an employee who moved to California, which does not enforce noncompete agreements, can escape from the restrictions of a Minnesota contract. In Advanced Bionics Corp. v. Medtronic, Inc., 29 Cal.4th 697 (Cal. 2002), the California Supreme Court reversed the California Appellate Court’s temporary restraining order against Medtronic’s parallel proceeding in Minnesota, subsequently giving deference to the contractual Minnesota choice of law provision. The ruling represented a significant departure from California’s steadfast stance against noncompete agreements, but was determined appropriate based on principles of judicial restraint and comity. Id. at 708. Meanwhile, the Minnesota Court of Appeals affirmed the use of Minnesota law, enforcing Medtronic’s noncompete agreement and providing Medtronic with injunctive relief. Advanced Bionics Corp. v. Medtronic, Inc. 630 N.W.2d 438 (Minn. Ct. App. 2001); see also, Medtronic, Inc. v. Gibbons, 684 F.2d 565, 568 (8th Cir. 1982) (affirming enforcement of choice of law provisions if they are made “in good faith and without an intent to evade the law”).
The enforceability of a noncompete agreement with a broad scope and lengthy duration was also called into question in a recent Minnesota Court of Appeals case involving St. Jude and Medtronic. In Medtronic, Inc. v. Hughes, the court ruled that a “worldwide” geographic scope was permissible when the employee held confidential information applicable in international markets, but only to the extent the noncompete applied to certain industry products. Medtronic, Inc. v. Hughes, No. A10–998, 2011 WL 134973, at *5, 6 (Minn. Ct. App. 2011). The court blue penciled the noncompete duration of two-years to one-year after Medtronic failed to prove its confidential information warranted two years of protection.
Moreover, employers have recently been successful in enforcing noncompete agreements that restricted or prevented employees from soliciting business from any prior client or customer, as the courts have found that “[i]rreparable harm may be inferred from breach of a valid noncompete agreement if the former employee obtained a personal hold on the good will of the former employer.” Boston Scientific Corp. v. Duberg, 754 F.Supp. 2D at 1039, citing St. Jude Med. S.C., Inc. v. Ord, 2009 WL 973275, at *5); see Guidant Sales Corp. v. George, Civ. No. 01–1638, 2001 WL 1491317, at *7 (D. Minn. Nov. 19, 2001).
As Minnesota courts continue to define and interpret the enforceability of noncompete agreements, some states like Massachusetts have discussed legislative limitations on the enforceability and scope of noncompete agreements, modeling the strict stance taken by California in an effort to spur innovation. It is unclear if this approach will prove successful, but considering Minnesota’s relatively firm enforcement of med-tech noncompete agreements, it is almost surprising that so many employees from Medtronic and other companies were able to depart and start second- and third-generation med-tech businesses.
Today, Minnesota med-tech companies remain a source of innovation and profits, employing thousands of individuals in the state. It remains to be seen if the med-tech industry will continue to generate litigation and new legal interpretations surrounding unfair competition in the future.
V. John Ella is a shareholder at Trepanier MacGillis Battina P.A. and practices in the area of noncompete litigation.
Anna Koch is a student at the University of Minnesota Law School, J.D. expected 2018.

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WOLFE v. BROWN-WRIGHT HOTEL SUPPLY CORPORATION.
Complaint; from Fulton Civil Court--Appellate Division. June 2, 1952.
Where, in a suit on an open account for the price of goods sold, the evidence was insufficient to establish that the defendant owed the plaintiff any definite amount as the contract price of the goods or as the market value of the goods, it was not error to grant a nonsuit.
Harry M. Wolfe brought suit against the Brown-Wright Hotel Supply Corporation for $280.25 on an open account for the price of four chairs and a sofa. The defendant denied the indebtedness. The evidence submitted by the plaintiff on the trial of the case showed that the defendant had ordered furniture from Wolfe, whose place of business was in Chicago, on a form dated May 5, 1950, which stated, "Invoice in duplicate." The furniture was to be shipped to the Waverly Hotel, Columbus, Georgia; the items were specified by model name and number; the frames were to be finished as mahogany, and the upholstery was to be dark green leatherette. Wolfe received this order about May 10, and he in turn sent his own order to a factory in Indiana. Wolfe's order to the factory listed the prices of the pieces of furniture, but in the defendant's order to Wolfe, no prices were specified. The furniture was shipped to the Waverly Hotel in July, and an invoice was sent to the defendant on July 13. This invoice was not in evidence. The defendant wrote to the plaintiff on July 28, "with reference to our order No. A 3867, billed on your invoice No. 25187 of July 13," and in this letter stated that its salesman was at the hotel when the furniture arrived; that the furniture was upholstered in light green Duran plastic, and that "This order is being returned in the original carton and we ask that you please issue us a credit on same." This letter reached Wolfe on July 31, and later, on that same date, he received notice that the furniture was in his receiving department. He sent an assistant to see that material had been used to cover it. Wolfe's assistant found that all the pieces had the same covering, and he cut some of the covering from the selvage underneath the sofa as a sample, which was introduced in evidence. The covering was what is known in the furniture trade as dark green leatherette, that is, a synthetic coating applied to cotton cloth backing, and it was not Duran, which is a plastic covering material without backing. On July 31, Wolfe sent a part of the sample of the covering to the defendant and wrote that he would not credit the defendant with the price of the furniture because it had been made to order, had he requested shipping instructions. The defendant wrote back on August 8, stating that it was through error that the hotel had shipped the goods to Wolfe by express collect, and offering to pay the express charges if Wolfe would accept the goods for credit "until we can contact the customer [Waverly Hotel] and find out what his complaint of the material actually could be." Wolfe wrote two more letters on August 12 and 24, in which he insisted that the goods were exactly as ordered, asked for shipping instructions, and notified the defendant that if no such instructions were given he would ship the merchandise to the defendant in Atlanta. Wolfe shipped the furniture by rail from Chicago on September 11; the shipment arrived in Atlanta on September 22, but the defendant refused to take the furniture on the ground that it was "not furn. ordered," according to the notice of refusal given to Wolfe by the railroad. Wolfe instructed the railroad that the merchandise belonged to the defendant.
At the close of the plaintiff's evidence, the defendant moved for a nonsuit, which was granted . . . From this ruling, the plaintiff appealed to the Appellate Division of Fulton Civil Court, and he also assigned error on the court's exclusion of the plaintiff's exhibits 5, 6, 7 and 8, which were the letters from the plaintiff to the defendant dated August 7, 12 and 24, and the letter liens the defendant to the plaintiff under date of August 8. The appellate division affirmed the rulings of the trial court, on the ground that the defendant, not having agreed to a price for the merchandise, was obligated to pay the reasonable market value thereof, and that, as no evidence of market value was introduced at the trial, the plaintiff was properly nonsuited. The exception here is to this judgment.
Considered as an action of assumpsit for the reasonable value of goods sold without an agreed price, this case was properly terminated by a nonsuit because there was no evidence of the value of the goods or data from which such value could have been inferred. See Pickert v. Jones, 19 Ga. App. 488 (91 S. E. 908). Of course, a suit on an open account may be maintained for the price of goods sold under a contract where the price has been agreed upon by the seller and purchaser and where the seller has performed his part of the agreement and nothing remains to be done except for the purchaser to make payment. Chatham Abattoir &c. Co. v. H. K. Painter &c. Co., 28 Ga. App. 383 (111 S. E. 82). If any such contract was entered into by the parties here, then what were the provisions of the contract with respect to the price of the goods shown to be? The invoice, a copy of which was attached to the petition, was not introduced in evidence. While secondary evidence of the contents of a writing (if admitted without objection) is sufficient to support a verdict (Maynard v. Rawlins, 45 Ga. App. 91, 163 S. E. 269; Thomas N. Baker Lumber Co. v. Atlantic Mill & Lumber Co., 24 Ga. App. 749 (2), 102 S. E. 135), the evidence of the contents of the invoice in the present case was too uncertain and indefinite to support a verdict as to what was alleged to be a certain and fixed amount. The plaintiff's assistant testified: "At the moment I don't remember the amount due Harry M. Wolfe. I have to check that. I would say around $250. I have charge of the books and records of Harry M. Wolfe. I assist in the control of them. I don't have a copy of the invoice. As nearly as I can remember it is approximately $250." While the correspondence offered as evidence fails to show that there was any dispute between the parties over the price, still no mention of any price was made in the letters. The price was one of the essentials of the contract (Code 96-101) giving rise to the alleged indebtedness, which was denied by the defendant in its answer, and proof of the price, as the amount sued for, was necessary to prove the case as alleged. The evidence was insufficient to establish that the defendant owed the plaintiff any definite amount, as the contract price of the goods or as the market value of the goods, and therefore the nonsuit was proper. McCoy v. Meador, 140 Ga. 253 (78 S. E. 848); Sapp Brothers v. Mathis, 12 Ga. App. 273 (77 S. E. 102).
Concerning the exception to the court's refusal to admit in evidence some of the correspondence between the parties, the evidence so excluded, if it had been admitted, would not have rendered the judgment of nonsuit erroneous, and so this ruling, leaving no effect on the final judgment, need not be considered.
Smith, Kilpatrick, Cody, Rogers & McClatchey, contra.
I. A. Blanch, for plaintiff in error.

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Poet and writer Tamam Kahn had the wit to contrast these two aerial photos of temporary cities — the Zaatari camp for Syrian refugees in northern Jordan, and the Burning Man encampment in the Black Rock Desert in Nevada. The desperate on the left, the Dionysiac on the right (below).
She also had the fortitude to use the Zaatari one as her screen saver for the past two weeks.
I wonder what the Rainbow Family encampment would look like from the air. It is dis-assembled and the site restored afterwards. I’m curious to know what the average income for Zataari is, compared to the average income for Burning Man and the Rainbow Family. It would be fascinating to convene a panel of representatives.
Burningman is an amazing experiment in communal living. Aside from the initial cost, there is generally no money exchanged there. I went several times, took an old RV and was part of a group camping there. One evening a bicycle rider brought our camp a hot pizza in a box, delicious and free. Our neighbor hooked up a bicycle to an ice-cream maker and gave out cold treats. The infrastructure is admirable in that a responsible number of people hold the energy for 50,000 people to celebrate and visit the art and music that is available 24/7. On one level it is a “party” but on another it is so much more. Ritual actions — like honoring the dead of the last year and writing their names on a beautiful sculptural temple for 5 days, then celebrating the “burn” as it goes back to dust. And the clean-up takes a month or more until nothing is left in that pristine desert. You bring in what you need and leave with it all. It is so colorful that everyday life — when you return— seems in black and white. It was started by the dot com-ers back in the 90’s. I went just after that. Everyone I brought there had a memorable time. The “wildness” is just a small part of the picture.
Someone just suggested that Burningman could contribute to the refugee camp — helping purchase water. I think that’s a great idea!
East v. West. Wealth v. poverty. Choice v. no-choice. Freedom v. no-freedom. Indulgence v. necessity. One week v. indeterminate time. Desperation v. partying. Survival v. art. Danger v. safety.
These multiple ironies are what made the twinned photos so powerful for me.

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The California Supreme Court has recognized that an employer's termination of an employee for reporting an alleged violation of a statue of public importance represents one category of wrongful discharge in violation of public policy, Gantt v. Sentry, 1 Cal.4th 1083, 1090-1091 (1992) citing approvingly in Turner v.
Anheuser-Busch, 7 Cal.4th 1238, 1256, 32 Cal.Rptr.2d 223, 235 (1994). Moreover, wrongful termination can be based upon an employee checking on and trying to report possible illegal conduct to company officials, Collier v. Sup. Crt. 228 Cal.App.3d 1117, 1121, 279 Cal.Rptr. 453 (1991). "Retaliation by an employer when an employee seeks to further...public policy by responsibly reporting suspicions of illegal conduct to the employer seriously impairs the public interest" and is enough for wrongful termination, at 1127, 458. [A]n employee need not provide an actual violation of the law; it suffices if the employer fired him for reporting his 'reasonably based suspicions' of illegal activity, Green v. Ralee Eng. Co. 19 Cal.4th 66, 87, 78 Cal.Rptr.2d 16 , 29 (1998) referencing Collier, 1125.
In Holmes v. General Dynamics, 17 Cal.App.4th 1418, 1423, 22 Cal.Rptr.2d 172, 174 (1993) the appellate court upheld a jury verdict for wrongful termination in which the evidence was that the plaintiff was fired for telling management their conduct violated a statute regulating public policy. The Holmes court held it was proper to instruct the jury that "employers shall not terminate employees in retaliation for disclosing to the employer's management a practice of the employer that violates the False Statements Act," at 1433, 181. The Holmes court held the instruction was proper and provided clarification what the word disclose means. The Holmes court held that disclosing means to "expose to view, as by removing a cover; uncover...The make known; divulge," Id. An employer who fires an employee for 'exposing to view or 'making known' an employer's illegal conduct plainly violates a 'fundamental' or 'substantial' public policy regardless of the militancy or the decibel level of the report and even if the employee has chosen not to actively oppose the illegal conduct. A contrary rule would provide corporate managers incentive to terminate any employee after the employee has reported illegal activity but before the employees has had the opportunity to 'protest' such activity. Moreover, such rule would unfairly penalize an employee, such as Holmes, who deems it appropriate to address the situation by working through company channels rather than engaging in some form of adversarial conduct, Id.
An action for tortious discharge is not strictly limited to those situations where an employer retaliated against an employee for refusing to violate a statute, performing a statutory obligation, exercising a statutory right, or reporting an alleged violation of a statute of public importance, Gould v. Maryland, 31 Cal.App.4th 1147, 37 Cal.Rptr.2d 723 (2nd Dist. 1995). An action for tortious discharge exists wherever the basis of the discharge contravenes a fundamental public policy, Id. Additionally, Soules v. Cadam, 2 Cal.App.4th 390, 401-402 3 Cal.Rptr.2d 6, 12 (review denied 1992) held "The rule that an employee may pursue an action for tortious constructive discharge in violation of public policy is not limited to situations where, as a condition of employment, the employer coerces the employee to commit an act that violates public policy or restrains the employee from exercising a fundamental right. Such an action will lie wherever the basis of the discharge contravenes a fundamental public policy," Fundamental public policies, for the purpose of the tort of wrongful termination, include statutes, regulations, and constitutional provisions, Green at 71. Where the lawmaking power speaks on a subject over which it has constitutional power to legislate, public policy is what the statute enacts, Thome v. Macken, 58 Cal.App.2d 76 (1943). Defendant has not cited a single case stating that any statute Masey bases his public policy argument on fail to inure to the public benefit thereby creating a wrongful termination cause of action.
In order to go forward with a Tameny styled wrongful termination lawsuit, the employee does not have to affirmatively refuse to engage in statutorily prohibited conduct, or complain about statutorily prohibited conduct. The courts have ruled that terminations in order to violate certain statutes create liability under this tort. Gould v. Maryland, 31 Cal.App.4th 1137, 1148, 37 Cal.Rptr.2d 718, 724 (1995) held an employer's termination of an employee to avoid paying accrued commissions and vacation pay violated California Labor Code Section 201 and created a wrongful termination case.
Contact us or call 1-877-525-0700 to speak to a Bakersfield employment lawyer.
California Labor Code Sections 6400, 6402, failing to provide safety devices as required in 6401, 6403, 6404, 6406(d).
California Labor Code Section 6308 requires employers to provide necessary information about the correct safety gear.
California Labor Code Section 6306 requires employers to provide safety equipment to workers.
California Labor Code Section 6310 prohibits discharge and discrimination because an employee has participated in a health and safety committee under Section 6401.7, or caused to be instituted any proceeding relating to an employee's rights about safety.
The letter and spirit of California Labor Code Section 6300 indicates it was enacted for the purpose of ensuring a safe and healthful work environment and encouraging employers to provide training about such.
The Labor Code also prohibits employers from exposing workers to hazardous substances, California Labor Code Section 6370.
Workplaces where the employees are subjected to unsafe or unhealthful conditions are not legal. If an employee is discharged or retaliated against for complaining about these types of work environments, they may have a wrongful termination case.
Call us today at 1-877-525-0700 to speak to a Bakersfield wrongful termination lawyer. If you live in Los Angeles click here Job Lawyer CA.
Firing an employee to avoid paying a wage due, including a large commission or bonus that is due.
Failing to properly dispute the level of treatment being prescribed to the employee.
If you have been wrongfully terminated, or excused due to unhealthy work environments we can help you with your case. Contact an experienced Bakersfield employment attorney today. Serving All Of Kern County Including: Arvin, Bakersfield, Lebec, Mojave, Ridgecrest, Taft, And Wasco. Give us a call for a free consultation at 1-877-525-0700 to talk to a Bakersfield employee lawyer.
Since 1993 firm owner Karl Gerber has handled more than 1,675 separate California employment cases with a 46/48 win rate of all binding arbitration and jury trials he has first chaired. To talk to a labor lawyer call us at 877-525-0700 (toll free).