Allahabad High Court
Nand Lal vs State Of U.P. And Ors. on 30 January, 2002
Equivalent citations: 2002(1)AWC781, AIR 2002 ALLAHABAD 141, 2002 ALL. L. J. 1255, 2002 A I H C 2730, 2002 (1) CURCC 558, 2002 (47) ALL LR 83
Author: V.M. Sahai
Bench: V.M. Sahai
JUDGMENT Sudhir Narain, J.
1. The petitioner seeks writ of certiorari quashing the impugned order dated 21.1.1999, whereby the Divisional Forest Officer, respondent No. 2, rejected the application of the petitioner for grant of licence for running saw-mill.
2. The petitioner is owner of a saw-mill alleged to be situate in village Dabauliya, Post Banskhor, district Basti. He had a licence for saw-mill obtained from respondent No. 2 in the year 1986 and his licence of saw-mill was renewed up to the year 1991. He deposited fee for renewal of licence for the subsequent period but it was not renewed. The petitioner filed Writ Petition No. 38139 of 1998. The writ petition was disposed of with the observation that the petitioner may file application for grant of new licence or an application for renewal of the old licence if pending and such application shall be disposed of within a month in accordance with law.
3. The petitioner submitted representation to respondent No. 2. The said representation has been rejected by respondent No. 2 vide Impugned order dated 21.1.1999 with the observation that those persons who had valid licence up to the year 1996, only they were entitled for the renewal and no fresh licence could be issued in view of the decision in T.N. Godavarman Thirumulkpad v. Union of India, (1997) 3 SCC 312. This order has been challenged in the present writ petition.
4. The question is as to whether the petitioner should be granted licence for the Saw-Mill. The State Government has framed U. P. Establishment and Regulation of Saw Mills Rules. 1978, The Rules have been amended by U. P. Establishment and Regulation of Saw Mills (Second Amendment) Rules, 1998. These rules provide for the grant of licence for Saw Mills.
5. The Supreme Court in T.N. Godavarman Thirumulkpad v. Union of India, AIR 1997 SC 1228. while considering the provisions of Forest (Conservation) Act, 1980, gave certain directions. One of the directions given in para 5 is as follows :
"In view of the meaning of the word "forest" in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any "forest". In accordance with Section 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw-mills of any kind including veneer or plywood mills, and mining of any mineral are non-forest purposes and are, therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity is prima facie violation of the provisions of the Forest (Conservation) Act, 1980. Every State Government must promptly ensure total cessation of all such activities forthwith."
Their Lordships of the Supreme Court further in Para 7 gave the following direction :
"This order is to operate and to be Implemented, notwithstanding any order at variance, made or which may be made by any Government or any authority, tribunal or Court, including the High Court.'
6. In T.N. Godavarman Thirumulkpad's case, (supra), an application was filed for seeking further direction. The Apex Court again reaffirmed the view taken in the case in T.N. Godavarman Thirumulkpad's case (supra), in (1997) 3 SCC 312 and in Para 6 again emphasised as follows :
"6. All unlicensed saw-mills, veneer and plywood industries in the State of Maharashtra and the State of Uttar Pradesh are to be closed forthwith and the State Government would not remove or relax the condition for grant of permission/licence for the opening of any such saw mill, veneer and ply-wood industry and it shall also not grant any fresh permission/licence for this purpose. The Chief Secretary of the State will ensure strict compliance of this direction and file a compliance report within two weeks."
7. The matter was again considered by the Supreme Court after receiving the report in T.N. Godavarman Thirumulkpad v. Union of India and Ors., (1997) 7 SCC 440. In respect of Uttar Pradesh, the Supreme Court permitted to grant permission to the existing licensed saw-mills provided that the relocated site is not within 10 Kms. of any existing forest. Para 4 contains certain directions which read as under :
"A, in the State of Uttar Pradesh the following is permitted :
(1) Principal Chief Conservator of Forest (P.C.C.F.) may. on a case-to-case basis, consider grant of permission to an existing licensed saw-mill to relocate Itself, provided that the relocated site is not within 10 Kms. of any existing forest.
(2) To alleviate the unintended hardship which may be caused to the ordinary populace in the hill areas who need forest produce for their survival, it is clarified as under:
(a) Nothing contained in the orders passed by this Court would prevent the U. P. Forest Corporation from directly undertaking the exercise of collecting forest produce including fallen wood (but not any felling or cutting of trees or timber) to the extent strictly necessary, and distributing the same ex-depot to the people living in the hill areas.
(b) The Forest Corporation may, with the prior permission of the P.C.C.F., remove dead or dry trees for supply in the same manner ex-depot to people residing in those areas. The Forest Corporation shall (i) undertake such activity Itself without engaging any outside agencies, and (ii) keep an account of the dead and dry trees felled and removed by them, and shall by way of an affidavit file the same in this Court."
8. The State of Uttar Pradesh, to regulate saw-mills, framed U. P. Establishment and Regulation of Saw Mills Rules, 1978. The Rule was amended by U. P. Regulation of Saw Mills (Second Amendment) Rules, 1998. Rule 3 prior to its amendment reads as follows :
"Restriction on establishment of saw-mills.--With the limits of any reserved or protected forests within a radius of 80 kilometres of such limits no person shall establish, erect or operate any existing saw-mill or machinery for converting or cutting timber and wood without obtaining a licence from the Divisional Forest Officer concerned."
Rule 3, after its amendment, reads as under :
'Licence for restriction of Establishment of Saw Mills.--No person shall establish, erect or operate any saw-mill or machinery for converting as, cutting timber and wood obtaining a licence from the Divisional Forest Officer concerned."
9. The unamended rule laid restriction that no licence shall be granted. If the saw-mill is situated within the limits of any reserved or protected forest and is within a radius of 80 kms. of such limit but this condition has been deleted under the aforesaid Rule 3.
10. The second proviso to Rule 5 of the amended rules provides that deeming clause 'grant of licence' shall not apply to saw-mills situated within 10 kms. area of any existing forest.
11. None of the rules put any restriction regarding grant of saw-mill outside the forest area provided it is not within specified limit of forest area. There is no provision for obtaining prior approval of the Central Government. The Second Amendment in Rule 3 was framed after the decision rendered by their Lordships of the Supreme Court in Godavarman's case (supra). The procedure provided for grant of licence prior to the amendment and after amendment is as follows :
11A. What should be the extent of forest area was considered tn Godavarman's case (supra), while interpreting Section 2 of the Forest (Conservation) Act. 1980, which reads as under :
"Restriction on the de-reservation of forests or use of forest land for non-forest purpose.--Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing-
(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved ;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose.
Explanation. -- For the purposes of this section "non-forest purposes" means breaking up or clearing of any forest land or portion thereto for any purpose other than reafforestation."
12. The Supreme Court considered the meaning of "forest" in Godavarman's case, and held that firstly, the word forest must be understood according to its dictionary meaning, secondly, it must apply to all forest irrespective of nature of ownership and classification thereof and thirdly, it will not only include the forest as understood in dictionary sense but also any area recorded as forest in the Government record irrespective of ownership. The relevant observation reads as under :
"The Forest (Conservation) Act, 1980, was enacted with a view to check further deforestation which ultimately results in ecological imbalance ; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word "forest" must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest (Conservation) Act. The term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest (Conservation) Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof."
13. In Yashwant Stone Works v. State of Uttar Pradesh and Ors. AIR 1988 All 121, the Court considering the meaning of word "any forest land" in Section 2 of 1980 Act held that Section 2 uses the words "any forest land". The word "any" has a very wide meaning and prima facie the use of the word excludes limitation or qualification. It is not confined to reserved forest. The word forest has been used in general sense and its definition was taken from Food and Agriculture Organisation. The Court relying on the meaning of word 'forest' made the following observation :
"The words important in Clause (ii) of Section 2 are : "any forest land". The word "forest" has not been defined in the Act. This word has been used in the general sense, which means "all lands bearing vegetative associations demarcated by trees of any size exploited or not, capable of producing wood or other forest products of exerting an influence on the climate or on the water regime or providing shelter for livestock and wildlife." This definition has been given by Food and Agriculture Organisation (F.A.O.) of the United Nations. The prohibition, thus, being that no forest land or any portion thereof can be used for non-forest purposes, prior approval of the Central Government would be needed."
14. As the forest area was to be protected, the Supreme Court further put a restriction in so far as Uttar Pradesh is concerned that in the State of Uttar Pradesh the Principal Chief Conservator of Forest (P.C.C.F.) may consider grant of permission to the existing licensed saw-mills to relocate itself provided that the relocated site is not within 10 Kms. of an existing forest. The basic purpose is that while granting permission for using a forest area, the non-forest activity should be regulated by obtaining prior approval of the Central Government.
15. The word "forest area" may cover the area covered with the forest in the dictionary sense as observed by the Supreme Court in Godavarman's case (supra), but while granting permission to establish a saw-mill or renew the licence for sawmill, the authority is to keep in mind that if trees are cut for one purpose or the other, the forest area is affected. The distance from the forest area itself may not be very much relevant as the transport facilities being available, wood can be transported after cutting the trees which may ultimately lead to deforestation or resulting in ecological Imbalance. In such a situation the distance must not be less than 10 Kms. of the existing forest as observed in T.N. Godavarman Thirumulkpad v. Union of India. (1997) 7 SCC 440, but it is open to the State Government to frame rules in this respect. In unamended Rule 3 of U. P. Establishment and Regulation of Saw Mills Rules, 1978, the limit fixed was 80 kilometres, but after 1998 amendment ft is 10 kilometres under second proviso to Rule 5.
16. The authority has to consider the location where the saw-mill is to be established and all the relevant factors keeping in view the decision of the Supreme Court in Godavarman's case (supra). It may be noted that the State Government has framed U. P. Establishment and Regulation of Saw Mills Rules. 1978. In exercise of powers under Clause (a) of Section 51A of the Indian Forest Act. 1927, but it does not put any restriction on establishment of saw-mills. It has further not laid down the guidelines for granting licence to saw-mills keeping in view the observation made in Godavarman's case (supra), and the necessary provisions for obtaining approval of the Central Government in case it affects the forest area.
17. The renewal can be granted of a valid licence. The petitioner is alleged to have obtained the licence in the year, 1986 and according to the petitioner it was renewed till the year 1991 but after the said period. It has not been renewed. According to him fee for renewal of licence was deposited but no order was passed. The petitioner did not challenge the action of the respondents in the year 1991. The mere deposit of the fee does not amount to renewal of licence. The petitioner cannot claim as a matter of right to get renewal of licence which was renewed only for the period 1991.
18. The petitioner could have, however, filed a fresh application for grant of licence as provided under Rule 5 of U. P. Establishment and Regulation of Saw Mills Rules. 1978. The authority was to consider it in accordance with law. The Supreme Court in its decision delivered on 12.12.1996 in T.N. Godavarman Thirumulkpad v. Union of India and Ors., AIR 1997 SC 1228, explained the meaning of the word "forest" and necessity for conservation of forest and referred to the provisions of Forest (Conservation) Act, 1980. There was no observation that the licence for running saw-mill is not to be granted in an area which is not covered with the forest or within the specified area outside the limit of forest. The Supreme Court again in its judgment dated 4.3.1997 in Godavarman Thirumulkpad v. Union of India, 1997 (3) SCC 312, observed that all unlicensed saw-mills, veneer and plywood industries in the State of Maharashtra and the State of Uttar Pradesh are to be closed and the State Government will not remove or relax the condition for grant of licence for the opening of any sawmill, veneer and plywood industry and it shall not grant any fresh permission/licence for this purpose. The Apex Court was only clarifying that no fresh licence should be granted in violation of the provisions of the Forest Conservation Act, 1980. It did not prohibit that licence to qperate saw-mills should not be granted on any condition. The basic condition is that the licence for sawmill shall not be granted in a forest area. The second proviso to Rule 5 itself provides that an application for grant of licence for a saw-mill situate within 10 kms. area of any existing forest shall not be deemed to have been allowed if not disposed of within 60 days as provided under the first proviso to Rule 5. This provision implies that an application for grant of licence to establish, erect or operate any existing saw-mill if it is situate within 10 Kms. area of any existing forest is not to be granted. It is for the State Government to define the forest area and the area within which the licence to establish, erect or operate the saw-mill should be granted. Respondent No. 2 has rejected the application without considering this aspect of the matter.
19. As discussed above, respondent No. 2 while rejecting the representation of the petitioner vide impugned order dated 21.1.1999 has not considered the limit of forest area, location of the saw-mill of the petitioner and the nature of the Industry run by the petitioner.
20. The writ petition is allowed and the impugned order dated 21.1.1999 (Annexure-4 to the writ petition) is hereby quashed. Respondent No. 2 is directed to decide the matter afresh in accordance with law and keeping in view the observation made above within a period of two months from the date of production of a certified copy of this order.
21. The State Government may also frame necessary rules or amend the rules keeping in view the decision of the Supreme Court and the observation made in this judgment. Copies of the Judgment shall be forwarded to the Chief Secretary to Government of Uttar Pradesh, Secretary to Department of Home and Secretary to the Department of Forest, Government of Uttar Pradesh, by the Registry.