Jharkhand High Court
(Ram Pukar Sharma vs . State Of Jharkhand & Ors.) on 8 March, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No.4808 of 2016
(Ram Pukar Sharma Vs. State of Jharkhand & Ors.)
With
W.P. (C) No.1355 of 2017
(M/s. Chotanagpur Wood Products Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.141 of 2017
(Md. Ataul Ansari Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.1714 of 2017
(Ashish Saw Mills Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.218 of 2017
(M/s. Maa Bhawani Timber Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.241 of 2017
(M/s. Patel Timber & Anr. Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.2518 of 2017
(M/s. Sharda Industries Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.3184 of 2017
(The Great Saw Mill Vs. State of Jharkhand & Ors.)
With
W.P. (C) No.4529 of 2016
(Munna Singh & Ors. Vs. State of Jharkhand & Ors.)
With
W.P. (C) No.4717 of 2016
(M/s. Gangotri Saw Mill Vs. State of Jharkhand & Ors.)
With
W.P. (C) No.4719 of 2016
(Harnath Sao Vs. State of Jharkhand & Ors.)
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W.P. (C) No.4722 of 2016
(Nageshwar Mahto Vs. State of Jharkhand & Ors.)
With
W.P. (C) No.4991 of 2016
(M/s. Nirsa Timber Supply Company & Ors. Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.5054 of 2016
(Ms. Hanuman Enterprises Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.5170 of 2016
(M/s. Biswakarma Timber Vs. State of Jharkhand & Ors.)
With
W.P. (C) No.5171 of 2016
(M/s. Deo Saw Mill Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.5172 of 2016
(M/s. Prakash Timber Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5173 of 2016
(M/s. Singh Timber Vs. The State of Jharkhand & Ors.)
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2
W.P. (C) No.5174 of 2016
(M/s. Shiv Shankar Saw Mill Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.5175 of 2016
(M/s. J. K. Timber Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5176 of 2016
(M/s. Durga Saw Mill Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.5177 of 2016
(M/s. Radha Timber Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.5181 of 2016
(M/s. Ranjeet Saw Mill Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5182 of 2016
(M/s. A. K. Timber Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5183 of 2016
(Ms. Vijay Saw Mill Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5184 of 2016
(M/s. Bharat Engineering Works & Ors. Vs. State of Jharkhand & Ors.)
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W.P. (C) No.5185 of 2016
(Ms. Jai Jawan Kasth Bhandar Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5186 of 2016
(Ms. Om Aluminum Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5240 of 2016
(M/s. Mohan Timber Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5275 of 2016
(Ms. Shree Mohan Timber Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5276 of 2016
(M/s. Singh Saw Mill Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5282 of 2016
(M/s Gosia Timber Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5283 of 2016
(M/s. Bhakat Saw Mill Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5284 of 2016
(M/s. Bhawani Steel Chem Works Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5285 of 2016
(M/s. Nav Bharat Kashth Bhandar Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5286 of 2016
(M/s. Laxmi Udyog Vs. The State of Jharkhand & Ors.)
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3
W.P. (C) No.5288 of 2016
(M/s. Gayatri Timber Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5289 of 2016
(M/s. Shankar Saw Mill Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5290 of 2016
(Ms. Dewdi Timber Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5291 of 2016
(M/s. Chhinmastika Steel Industries Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5292 of 2016
(M/s. United Timber Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5293 of 2016
(Ms. Omkar Bijay Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5297 of 2016
(M/s. Das Saw Mill Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5299 of 2016
(M/s. Sahu and Company Vs. State of Jharkhand & Ors.)
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W.P. (C) No.5302 of 2016
(M/s. Bokaro Timber Seasoning Plant Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5303 of 2016
(M/s. Raj Shree Udyog Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5304 of 2016
(M/s. New Bhagwati Timber Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5305 of 2016
(M/s. Shree Durga Enterprises Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5307 of 2016
(M/s. Sahu Timber Vs. State of Jharkhand & Ors.)
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W.P. (C) No.5341 of 2016
(M/s. Saroj Timber Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5342 of 2016
(M/s. Baliapur Timber Traders, Jharia Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5348 of 2016
(M/s. Thakur Timber Vs. State of Jharkhand & Ors.)
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W.P. (C) No.5355 of 2016
(M/s. Bokaro Timber Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5384 of 2016
(M/s. Trimurti Saw Mill Vs. The State of Jharkhand & Ors.)
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4
W.P. (C) No.5508 of 2016
(M/s. Achal Udyog Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5529 of 2016
(Romnik Lal Solanti @ Rominak Lal Solanky Vs. State of Jharkhand & Ors.)
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W.P. (C) No.5530 of 2016
(Chandeshwar Mistri & Anr. Vs. State of Jharkhand & Ors.)
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W.P. (C) No.5565 of 2016
(M/s. Vina Pani Shaw Mill Vs. State of Jharkhand & Ors.)
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W.P. (C) No.5567 of 2016
(M/s. Krishna Timber Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5718 of 2016
(M/s. Kailash Timber Vs. State of Jharkhand & Ors.)
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W.P. (C) No.5725 of 2016
(M/s. Singh Saw Mill Vs. State of Jharkhand & Ors.)
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W.P. (C) No.5756 of 2016
(M/s. Kamal Saw Mills Vs. State of Jharkhand & Ors.)
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W.P. (C) No.5765 of 2016
(Parmeshwar Kumar Ray & Ors. Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.5791 of 2017
(M/s Sri Baba Timber Vs. State of Jharkhand & Ors.)
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W.P. (C) No.5813 of 2016
(Runkini Traders Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.6145 of 2016
(M/s. Vishwakarma Timber Vs. State of Jharkhand & Ors.)
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W.P. (C) No.6148 of 2016
(M/s Kasth Udyog (P) Ltd. Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.6226 of 2016
(M/s Mahadev Saw Mills Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.6355 of 2016
(Shyam Himatsinghka Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.6356 of 2016
(Md Mustafa Jamal & Ors. Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.6540 of 2016
(M/s Durga Body Builders Vs. State of Jharkhand & Ors.)
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W.P. (C) No.6769 of 2016
(M/s Bhardwaj Timber Vs. The State of Jharkhand & Ors.)
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W.P. (C) No.6827 of 2016
(Shyam Prasad Sahu Vs. The State of Jharkhand & Ors.)
With
W.P. (C) No.996 of 2017
(Md Anwar Ali Vs. The State of Jharkhand & Ors.)
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner(s) : M/s. P.A.S. Pati, Anil Kumar, Mahesh Tewari, Vishal Kumar, A. K. Sahani, Mrinal Kanti Roy, Dhirendra Kumar Deo, Vijay Shankar Jha, Shree Krishna Murari, Ashutosh Anand, Vikas Pandey & Kumar Vaibhav, Advocates For the State : Mr. H. K. Mehta, AAG & A.C. to AAG & Mr. Rajiv Anand, G.A.IV & A.C. to G.A.IV For U.O.I. : Mr. Rajiv Sinha, ASGI
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17/08.03.2018: These batch of writ petitions have been preferred challenging the decision of the Government of Jharkhand fixing the distance of saw mills to be 5 kms. from the notified forest area and also the consequential action like notices issued to the petitioners directing them to shift the saw mills beyond 5 kms from the notified forest area as well as the letters of suspension/cancellation of licences issued thereunder in the event of non-observance of the said direction of the State Government.
2. All these writ petitions involve common question of law and as such same are being heard together and decided by this common judgment. With the consent of the learned counsel for the parties, W.P.C No. 4808 of 2016 is taken as a lead case for one set of writ petitions and W.P.C No. 5240 of 2016 is taken as a lead case for another set of writ petitions.
Facts of W.P.(C) No. 4808 of 2016
3. The factual background of the case is that the petitioner is the proprietor of M/s Om Timber Mill situated at Patel Nagar, Bhurkunda. A license under the provisions of The Bihar/Jharkhand Saw Mills (Regulation) Act, 1990 (in short Act, 1990) was issued in favour of M/s Om Timber Mill vide license no. 34 dated 27.08.1986 and the same was renewed from time to time and the last renewal was made till 31.12.2015. The petitioner applied for renewal of license of saw mill in the prescribed form in the year 2016 but the respondent did not pass any formal order thus it continued to operate the saw mills 6 treating deemed renewal of licence in view of Rule 6 of the Bihar (now Jharkhand) Saw Mills (Regulations) Rules, 1993 (in short 'Rules 1993'). However, the Divisional Forest Officer (Respondent No. 4) vide letter no. 1955 dated 09.08.2016 directed the petitioner to shift his saw mill beyond 5 kms from the notified forest area in view of the order of the Hon'ble Supreme Court rendered in the case of T.N Godavarman Thirumulkpad Vs. Union of India, reported in (1997) 2 SCC
267. Thereafter, the petitioner personally met the Divisional Forest Officer (respondent no. 4) requesting him not to act in pursuance with the letter no.1955 dated 09.08.2016 requesting that the order of the Hon'ble Supreme Court rendered in the case of T.N Godavarman Thirumulkpad (Supra.) is not applicable for the petitioner as the said saw mill has been established prior to the judgment of Hon'ble Supreme Court and he has not violated the terms and conditions of the licence. However the said request was not taken into consideration by the respondent no.4. Hence the present writ petition.
Facts of W.P.(C) No. 5240 of 2016
4. The factual background of the case is that the petitioner is the owner of M/s. Mohan Timber which was established way back in the year 1992 which is being run after following due procedure of law as applicable from time to time. After promulgation of the Act, 1990 and the Rules, 1993, the petitioner continued to run its saw mill on periodic renewal of its licence. The Government of Jharkhand scrutinized the viability as well as importance of several similar units including that of the petitioner and took a decision vide Memo No. 1865 dated 27.04.2005, to the effect that till further order, those units which are engaged in supply of wooden materials to the Bokaro Steel Limited (in short 'BSL') shall not be disturbed or closed. According to the petitioner though the unit also sells its products in the local market but ultimately, the same culminate in the services of BSL since most of the ancillary units are primarily dependent upon various kinds of orders placed by the BSL itself. Even otherwise, the petitioner's unit is situated in Chas Area over the sub-leased industrial land of BSL engaged in supply of required wooden products by way of raw materials to the BSL. However, suddenly vide impugned Letter no.2921 dated 25.08.2016 issued under the seal and signature of the 7 Divisional Forest Officer-cum-Licensing Authority, Bokaro, the petitioner has been directed to shift his saw mill beyond 5 kms. from the notified forest area which gives rise to filing of the present writ petition.
Submissions on behalf of the petitioners
5. First set of writ petitioners are represented by Mr. Anil Kumar Sinha, learned Senior Counsel, who argues the matter at length and submits that the licences of the petitioners have been suspended arbitrarily without violation of any terms and conditions of the licence granted to them under the Act, 1990 and the Rules, 1993. It is further submitted that the impugned letter(s) have been issued in violation of the principles of natural justice as neither any show cause notice has been issued nor opportunity of hearing has been provided to the petitioners before issuing the impugned letters. It is further submitted that the respondents have misinterpreted the order passed by the Hon'ble Supreme Court in the case of T.N Godavarman Thirumulkpad (Supra.) as the said order is not applicable to the saw mills of the petitioners which were established and have been operating since 1996. The impugned letters issued by the D.F.Os of different Forest Divisions directing the petitioners to shift their saw mills beyond 5 kms. from the notified forest area is discriminatory, as the said direction has not been given to those saw mills which are situated within the municipal area or a notified area. By way of the said direction, the respondents cannot create two different classes of saw mills. The main purpose of the Forest Conservation Act, 1980 and the Act, 1990 is to control theft of forest produce. However, by out rightly directing the petitioners to shift their saw mills beyond 5 kms. from the notified forest area would not achieve the said purpose, as it is possible that the certain municipal or notified area may fall within 5 kms. from the notified forest area. It is also submitted that the Act, 1990 has been enacted for the purpose of establishment and operation of saw mills. Section 6(1) of the Act, 1990 empowers the State Government to issue notification declaring any area to be a prohibited area for a period not exceeding three years at a time as may be specified in the said notification. In view of the said specific provision of Section 6(1) of the Act, 1990, the respondents by way of any 8 letter/executive decision cannot override the provisions of Section 6(1) of the Act, 1990 as the impugned letters directing the petitioners to shift their saw mills beyond 5 kms. from the notified forest area cannot be treated as a statutory notification issued under Section 6(1) of the Act, 1990. Moreover, the then Government of Bihar framed the Rules, 1993 under the Act, 1990 which has also been adopted by the State of Jharkhand. Rule 4 of the Rules, 1993 enumerates the terms and conditions of the saw mill licence. On perusal of the Rules, 1993, it would be evident that no such condition has been mentioned therein that a saw mill cannot be operated within a distance of 5 kms. from the notified forest. Unless the terms and conditions of the licence, as enumerated in Rule 4 of the Rules 1993 are amended, the respondents cannot put any new condition/restriction by way of an executive order. Moreover, the authorities of the State of Jharkhand have also not followed the mandates of the order dated 12.12.1996 passed in T.N Godavarman Thirumulkpad (Supra.) and order dated 05.10.2015 in T.N Godavarman Thirumulkpad Vs. Union of India, reported in (2016) 13 SCC 586. Before taking any action against the saw mills situated within the State of Jharkhand, the State Government should have filed its report before the Hon'ble Supreme Court, as has been directed in paragraph 5 of the order dated 12.12.1996 in the case of T.N Godavarman Thirumulkpad (Supra.). and after approval of the same by the Hon'ble Supreme Court, the suitable decision should have been taken in this regard. However, the State authorities hurriedly issued the impugned letters without making any impeccable reason so as to justify the rationale behind issuing the direction to the saw mill owners to shift their saw mills beyond the 5 kms. from the notified forest area. The state authorities have miserably failed to adopt proper procedure in relation to the affairs of the saw mill owners. Even if the State authorities intended to curb theft of forest produce, they should have framed the scheme, submitted the same before the Central Empowered Committee to be further placed before the Hon'ble Supreme Court and on approval of the same, the existing provisions of the Act, 1990 and the Rules, 1993 should have been suitably amended so as to take appropriate action against the saw mills operating in the State of Jharkhand.
96. Mr. S. K. Murari, Advocate appearing on behalf of the second set of writ petitioners [led by W.P. (C) No. 5240 of 2016], apart from adopting the arguments advanced by Mr. Sinha, submits that the saw mills of the petitioners represented by him are situated in "Chas" over sub-leased industrial land of BSL and are engaged in supply of required wood products by way of raw material to BSL. It is further submitted that since the concerned saw mills are situated within the sub-leased area of BSL meant for establishing industry, the same should be treated as Industrial Estate and, thus, in view of the guidelines mentioned in the resolution dated 11th September, 2017 issued by the Ministry of Environment and Forest Climate Change (in short 'MoEFCC'), the petitioners are exempted from the condition of shifting the saw mills beyond the 5 kms. from the notified forest area. It is also submitted that the petitioners were not granted any opportunity of hearing before issuance of the impugned notices, directing them to shift their saw mills beyond 5 kms. from the notified forest area, and thus the action of the respondents is in violation of the principles of natural justice.
Submission on behalf of the respondents:
7. Mr. H. K. Mehta, learned AAG appearing on behalf of the respondents, submits that the Hon'ble Supreme Court vide order dated 12.12.1996 in the case of T.N Godavarman Thirumulkpad (Supra.) had directed all the States and Union Territories to constitute Expert Committee to examine the functioning of saw mills and to suggest the number of saw mills required in a particular State/Union Territory on the basis of sustainability vis-à-vis availability of timber from all the sources of respective States/Union Territories and also the optimum distance from the forest where saw mills should be located. In compliance of the order of the Hon'ble Supreme Court, the Forest and Environment Department of the erstwhile State of Bihar constituted the Expert committee and on the basis of the report of the Expert Committee, the erstwhile State of Bihar vide letter no. 343 dated 28.10.2000 intimated the Principal Chief Conservator of Forest, Bihar that the minimum distance of the saw mills, veneer mills and plywood mills and any other timber based industry has been fixed to be 5 kms. from the notified forest area, however the mills/industries 10 established in the notified Municipality/Municipal Corporation and notified area prior to 12.12.1996 have been exempted from the said distance. It is submitted that after reorganization of the erstwhile State of Bihar, an expert committee was also constituted by the State of Jharkhand in compliance of the order of the Hon'ble Supreme Court in the case of T.N Godavarman Thirumulkpad (Supra.) and on the basis of the report of the expert committee, Commissioner and Secretary, Forest and Environment Department, Government of Jharkhand issued letter fixing the number of saw mills for the entire State of Jharkhand as 496 on the basis of the sustainability of timber product and in the public interest. The Chief Secretary, Government of Jharkhand during the review of the functioning of saw mills activities in the State directed that the saw mills located within 5 kms. from the notified forest area should be closed immediately and to be proceeded with as per law. It is also submitted that the petitioners' saw mills are not located within the limit of municipal corporation or any notified area and as such the petitioners have no right to contend that merely because their saw mills were established prior to 1996, the parameters fixed for maintaining minimum distance from the notified forest would not apply. It is further submitted that since the petitioners did not submit any proposal to change the location of their saw mills within stipulated period, the orders of suspension of licenses of the petitioners have been passed. It is also submitted that the Division Bench of this Court in the case of the State of Jharkhand & Ors. Vs. M/s Itki Saw Mill and Anr. (L.P.A No. 625 of 2004 with other analogous cases) has already held that the state authorities have rightly directed the saw mills to move beyond 5 kms. of the notified forest area. It is further submitted that the impugned notices are for the purpose of calling upon the petitioners to submit their proposals to shift the saw mills within the specified time and if they had any grievance against any order of the licensing authority, they had the option to file appeal under the provisions of Section 12 of the Act, 1990 before the prescribed appellate authority. The petitioners have, however, not availed the said remedy available under the Act, 1990 and as such the present writ petitions are not maintainable. It is further submitted that in view of the order dated 05.10.2015 passed by the Hon'ble Supreme Court in T.N Godavarman Thirumulkpad 11 Vs. Union of India, reported in (2016) 13 SCC 586, the MoEFCC, Government of India, vide letter dated 19.11.2015 has issued certain directions for the constitution of the State Level Committee (in short 'SLC') under the Chairmanship of Principal Chief Conservator of Forests and accordingly the Government of Jharkhand vide notification no.2/Ra.Yya. 08/2007-985 dated 19.02.2016 has constituted the said committee. Further the Department of Forest & Environment and the Chief Secretary, Govt. of Jharkhand vide letters dated 17.06.2016 and 25.07.2016, respectively, instructed the forest authorities to take time bound action with regard to the saw mills which are situated within 05 kms. from the notified forest. Accordingly, the impugned letters have been issued to the petitioners.
Finding of the Court
8. Heard the learned counsel for the parties and perused the materials available on record. Before appreciating the rival contentions made on behalf of the parties, it would be appropriate to take note of the background of these cases.
9. Increase in human population and industrialization augmented the demand for wood and wood-based products. As a consequence, saw mills and wood based industries emerged as essential urban and rural forces. These industries being dependent upon wood, created direct/indirect pressure upon trees and forests. Thus, to regulate their operation and to have check on their excessive proliferation, several laws i.e., enactments, rules and guidelines were framed. All of these have their genesis in the provisions of Forest Conservation Act, 1980. Several States framed their own sets of laws pertaining to the said issue. Despite this, most of the States faced the situation of growth of illegal saw mills, which were considered detrimental to the cause of forest conservation. In this regard, the Hon'ble Supreme Court passed a landmark order on 12.12.1996 while hearing the case of T.N. Godavarman Thirumulkpad (Supra.).
10. The Hon'ble Apex Court vide order dated 12.12.1996 passed in the said case, issued directions for all the State Governments/Union Territories which reads as following:-
12"5. Each State Government should constitute within one month an Expert Committee to:
(i) Identify areas which are "forests", irrespective of whether they are so notified, recognised or classified under any law, and irrespective of the ownership of the land of such for-est;
(ii) identify areas which were earlier forests but stand degraded, denuded or cleared; and
(iii) identify areas covered by plantation trees belong-ing to the Government and those belonging to private persons.
6. Each State Government should within two months, file a report regarding :
(i) the number of saw mills, veneer and plywood mills actually operating within the State, with particulars of their real ownership;
(ii) the licensed and actual capacity of these mills for stock and sawing;
(iii) their proximity to the nearest forest;
(iv) their source of timber.
7. Each State Government should constitute within one month, an Expert Committee to assess:
(i) the sustainable capacity of the forests of the State qua saw mills and timber based industry;
(ii) the number of existing saw mills which can safely be sustained in the State;
(iii) the optimum distance from the forest,- qua that State, at which the saw mill should be located.
8. The Expert Committees so constituted should be requested to give its report within one month of being constituted.
9. Each State Government would constitute a Committee compris-ing of the Principal Chief Conservator of Forests and another Senior Officer to oversee the compliance of this order and file status reports."
11. In compliance of the aforesaid direction of the Hon'ble Supreme Court, the erstwhile State of Bihar constituted an Expert Committee to fix the optimum distance of the saw mills and other wood based industries from the forest, and also to ascertain the number of running saw mills with and without licence. Later on, on the basis of report of the expert committee, the Forest and Environment Department of the erstwhile State of Bihar issued letter no. 343 dated 28.10.2000 addressed to the Principal Chief Conservator of Forests, Bihar, intimating that the minimum distance of the saw mills, veneer mills and plywood mills and any other timber based industry has been fixed as 5 kms. from the notified forest area.
12. The relevant portion of the letter dated 28.10.2000 based on the decision of the Expert Committee regarding fixation of the distance of the saw mills reads as under:
"The minimum distance of the Saw Mills, Veneer Mills and Plywood Mills and any other timber based industry in the notified forest areas of the State is fixed to be 5 kilometres but the mills established in the notified municipality, Municipal Corporations and notified area prior to 12.12.1996 are hereby exempted from this distance. The mills situated near the mines, industrial area and Railway Stations are exempted from this distance. No exemption of any type will be given to the Mills that do not come under the aforesaid notified areas. The Mills functioning legally be given chance to shift their Mills without loss of time to any other place and the remaining Mills 13 be got closed. It will not be applicable on the establishments that are eligible for exemption under section 25 of Timber Cutting (Regulation) Act, 1990."
13. After reorganisation of the erstwhile State of Bihar and thereby creation of the State of Jharkhand w.e.f 15.11.2000, the Principal Chief Conservator of Forest, State of Jharkhand based upon letter no.343 dated 28.10.2000 issued letter no.1802 dated 16.05.2001 to all the Chief Conservator of Forests and Regional Chief Conservator of Forests to the effect that initially two years' time schedule for shifting all those licensed saw mills which are situated within 5 kms. is to be given. Thereafter, under the Chairmanship of Chief Conservator of Forest, an Expert Committee was constituted by the State of Jharkhand vide notification dated 27.07.2001 to submit the report in compliance of the direction of Hon'ble Supreme Court in the case of T.N Godavarman Thirumulkpad (Supra.). Based on the report of the Expert committee, Commissioner and Secretary, Forest and Environment Department, Government of Jharkhand issued letter no. 3730 dated 22.07.2003 fixing the number of saw mills for entire State of Jharkhand as 496 on the basis of sustainability of timber products, other practical aspects and in the public interest.
14. Earlier also, some saw mill owners filed writ petitions in this Court being W.P.(C) No. 2124 of 2003 and other analogous cases against the notices issued by the Divisional Forest Officer, Ranchi for shifting of the saw mills beyond 5 kms. from the notified forest. The said writ petitions were allowed by learned Single Judge of this Court vide order dated 09.09.2003 holding inter alia that the order dated 12.12.1996 passed by the Hon'ble Supreme Court in the case of T.N Godavarman (Supra.) is not applicable to the said petitioners. The State of Jharkhand preferred appeal being L.P.A No. 625 of 2004 with other analogous cases which were finally allowed by the learned Division Bench of this Court vide judgment dated 18.07.2014.
15. In view of the direction of the Hon'ble Apex Court passed in the case of T.N Godavarman Thirumulkpad Vs. Union of India [W.P.(C) No. 202 of 1995] contained in the order dated 09.05.2002 for monitoring the implementation of the orders of the Hon'ble Apex Court, the Central Empowered Committee (in short 'CEC') was 14 constituted, which vide order dated 06.06.2003 issued following directions:-
i. ******* ii. ******* iii. *******
(iv) the State may take a decision about the relocation of wood based unit from one place to another to ensure that the spatial distribution of wood based industry is properly maintained.
However, wherever the license of an existing unit is cancelled and in lieu thereof a new license to another unit is to be given prior approval of the CEC will be necessary and
(v) units based on imported timber also require a saw mill license for which approval of CEC will be necessary."
16. It appears that the CEC held a meeting with Principal Chief Conservator of Forest, Jharkhand and took a decision on 07.08.2009 that no new license to any wood based industry in the State of Jharkhand will be considered. As and when the timber availability is assessed to be more than the installed capacity of licensed wood based industries in the State, the grant of new license will be considered. On 05.10.2015 again W.P. (C) No. 202 of 1995 was taken up by the Hon'ble Supreme Court and it was brought to the notice of the Hon'ble Court that many matters are pending before the Green Bench under different heads such as matters (i) relating to wood based industries,
(ii) National Parks/Wildlife Centuries, (iii) exemptions from the payment of the NPV etc. Thus, for early disposal of the pending matters relating to wood based industries, following directions were issued by the Hon'ble Apex Court in T.N Godavarman Thirumulkpad Vs. Union of India, reported in (2016) 13 SCC 586:-
Category I - Matters relating to wood based industries:-
We have heard Shri Harish Salve, learned Amicus Curiae, Shri Ranjit Kumar, learned Solicitor General of India, Shri K.K. Venugopal, learned Senior Counsel and other learned Senior Counsel/counsel. Accordingly, we pass the following orders:
i. The State Level Committees for Wood-based Industries ("SLCs") are, subject to the compliance with the prescribed guidelines and procedure, authorised to take decisions regarding the grant of licence/permission to the wood-based industries.
ii. In each State/UT for which SLC has so far not been constituted, SLC under the chairmanship of the Principal Chief Conservator of Forests with a representative of the Ministry of Environment and Forest and Climate Change (MoEFCC) and an officer of the State Forest Department/Industries Department not below the rank of the Chief Conservator of Forests/equivalent rank will immediately be constituted.
iii. MoEF is authorised to issue appropriate guidelines in conformation with the orders and directions issued by this Court and also the existing guidelines to SLCs relating to assessment of timber availability for wood-based industries 15 and grant of licence/permission to the wood-based industries including addition of new machineries and also utilisation of amounts recovered from the wood-based industries and connected matters.
iv. Any person aggrieved by the decision taken by SLC may file an appeal before MoEFCC seeking appropriate relief within 60 days' time. If, for any reason, any person is aggrieved by the orders so passed in the appeal, he may prefer an appropriate petition/application/appeal before the appropriate forum/court for grant of appropriate relief(s)."
17. Thereafter, in compliance of the order dated 05.10.2015 passed by the Hon'ble Supreme Court in T.N Godavarman Thirumulkpad Vs. Union of India, reported in (2016) 13 SCC 586, the MoEFCC vide letter no. 19.11.2015 ordered for the Constitution of SLC under the chairmanship of Principal Chief Conservator of Forests and other official representatives and accordingly, the Government of Jharkhand vide notification No. 2/Ra/Yya.08/2007-985 dated 19.02.2016 constituted the SLC. During Review meeting of Forest Department, the Chief Secretary, Government of Jharkhand on 17.06.2016 and subsequently on 25.07.2016 directed to take time bound action against illegal saw mills and the saw mills situated within 05 kms. from notified forest and as such notices were issued to the petitioners directing them for reallocation of their saw mills beyond 05 kms from the notified forest. The MoEFCC, Government of India, vide Resolution No. S.O 3456 (E) dated 11.11.2016 issued detailed guidelines for constitution of SLC under Chairmanship of the Principal Chief Conservator of Forests along with 6 other members. In the said guidelines, the Government of India directed to constitute SLC under the Chairmanship of the Principal Chief Conservator of Forests alongwith 6 more members.
18. In para 7(ii) of the said guidelines regarding restriction on location of wood based industries -
"In the States other than the aforementioned North Eastern States, wood based industries shall ordinarily be not allowed to be established within ten kilometers aerial distance from the boundary of nearest notified forest and protected areas. The State Level Committee for the reasons to be recorded in writing and after obtaining prior approval of the Central Government in the Ministry of Environment, Forest and Climate Change may permit to establish/operate a wood based industry at an aerial distance less than 10 kilometres from the boundary of a notified forest or a protected area."
19. Based upon the resolution no. 3456 dated 11.11.2016, the Forest, Environment and Climate Change Department, Government of 16 Jharkhand issued a fresh notification no. 2/Ra/Vya-08/2007-1055 dated 09.03.2017 regarding reconstitution of SLC under the chairmanship of Principal Chief Conservator of Forest, Jharkhand. The first meeting of the newly constituted SLC was held on 27.03.2017, wherein recommendations were made for relaxation in maintaining aerial distance of 10 kms. for location of wood based industries.
20. Further, The Govt. of India vide resolution dated 11.09.2017 carried out amendment in the Wood Based Industries (Establishment and Regulation) Guidelines, 2016 providing inter alia that the wood based industries shall be allowed to operate as per state-specific order/approval of the Hon'ble Supreme Court/Hon'ble High Court of the concerned State/Central Empowered Committee. The relevant paragraphs of the resolution dated 11.09.2017 are quoted as under:-
(5) The entries under Para-7 (ii) of these guidelines are substituted with the following:-
(a) In the States/UTs (other than North Eastern States), in respect of distance from the boundary of nearest notified forests or projected areas, wood based industries shall be allowed to operate as per state-specific order/approval of the Hon'ble Supreme Court/Hon'ble High Court of the concerned State/Central Empowered Committee.
Or, beyond ten kilometres of aerial distance from the boundary of nearest notified forests or protected areas excluding roadside/railway side/canal side plantations, whichever is less.
(b) A Wood Based industry can be established in an Industrial Estate or a Municipal area, irrespective of the aerial distance from the boundary of nearest notified forest or protected area.
21. Mr. Anil Kumar Sinha, the learned Senior Counsel appearing on behalf of the petitioners has contended that the Hon'ble Supreme Court vide order dated 05.10.2015 has modified the earlier order passed on 12.12.1996 and the States have been directed to dissolve the earlier expert committees and constitute a fresh SLC in terms with the direction contained in the order dated 05.10.2015, thus before taking any action against the petitioners, the issue was required to be revisited by the newly constituted SLC.
22. The said argument of Mr. Sinha does not appear to be convincing since while passing the order dated 05.10.2015, no observation has been made by the Hon'ble Supreme Court that all the earlier exercises undertaken by the expert committees pursuant to the direction given in terms with the earlier orders got redundant, rather 17 in the order dated 05.10.2015 itself, the Hon'ble Apex Court has authorized the MoEFCC, Government of India to issue guidelines in conformity with the orders and directions issued by the Hon'ble Supreme Court relating to assessment of timber availability for wood- based industries and grant of license/permission to the said industries including addition of new machineries and also for utilization of amounts recovered from the wood-based industries and connected matters. The guidelines issued by MoEFCC, Government of India also does not provide that the new SLC will undertake all the exercises afresh/denovo without any change in circumstance. Moreover, the background of the present case is that after the order dated 12.12.1996 passed in T.N. Godavarman Thirumulkpad (Supra.), the erstwhile State of Bihar constituted an Expert Committee which after meticulous examination of all the relevant factors submitted its report recommending the distance of saw mill, veneer mills and plywood mills or any other timber industry from the notified forest area to be 05 kms. from the notified forest and on the basis of such recommendation the Government of Bihar issued Circular No. 343 dated 28.10.2000. After reorganization of the erstwhile State of Bihar, the newly created State of Jharkhand also constituted an expert committee which adopted the recommendation, made by the expert committee of erstwhile State of Bihar. Earlier also the letter no. 243 dated 28.10.2000, letter no. 745 dated 07.03.2001, letter no. 1802 dated 16.05.2001 and the letter no.2707 dated 01.09.2001 issued in this regard were put to challenge by some of the saw mill owners by filing writ petitions being W.P.(C) No.2124 of 2003 and analogous cases which were allowed by the learned Single Judge, however, in appeal preferred by the State of Jharkhand, being L.P.A. No.625 of 2003 and analogous cases, the order of the writ court was set aside by the learned Division Bench of this Court holding, inter alia, that the authorities have rightly directed the saw mills to move 05 kms. beyond the notified forest area within the period of two years.
23. The relevant parts of the judgment rendered by the learned Division Bench of this Court in L.P.A. No. 625 of 2003 and analogous cases of M/s Itki Saw Mills (Supra.) are quoted as under:-
"17. The Writ Court further held that the respondents- Saw Mills were established prior to 1996 and the judgment of 18 Hon'ble Supreme Court in T.N. Godavarman Thirumulkpad's case would not apply to the respondents Saw Mills. In T.N. Godavarman Thirumulkpad (supra), the Hon'ble Supreme Court issued directions to fix the optimum distance of forest qua that State at which the Saw Mills should be located. Accordingly the Expert Committee fixed the distance as 5 kilometres from the Notified Forest Area for all the Saw Mills. As per the report of the Expert Committee only those Mills which were established in the notified Municipality, Municipal Corporations and notified areas prior to 12.12.1996 are exempted from this distance. It is not the case of the respondents that their Mills were situated within the limits of Municipal Corporation or Notified Area. Therefore, the respondents are not right in contending that merely because the respondents-Saw Mills were established prior to 1996, the parameter of minimum distance from the notified forest area do not apply.
20. There is no merit in the contention of the respondents that by the impugned notice the respondents-Saw Mills were directed to be closed. From the tenor of the impugned notice, it is clear that it directs the respondents-Saw Mills to shift the Saw Mills latest by 15.05.2003 to other place which falls under the Notified Area or Municipality or the Corporation. The impugned notice further stipulates that if the Saw Mills is not shifted latest by 15.05.2003 then the said Mill will be required to be closed down. The notices issued to the respondents-Saw Mills were only a prior notice, calling upon them to shift the Saw Mills within the specified time and the Writ Court was not right in quashing the notices to the respondent-Saw Mills.
23. Whether the respondents' Saw Mills are situated within the limits of Municipal Corporation or Notified Area Committee and whether they are still required to be shifted, it is for the authorities to examine the same in the light of the directions issued in letter no. 343 dated 28.10.2000 and letter no. 1802 dated 16.05.2001 and also the subsequent decisions of the Central Empowered Committee.
28. In view of the aforesaid discussions and reasoning, the authorities have rightly directed the respondents-Saw Mills to move from five kilometres of the Notified Forest Area within the period of two years. The writ Court was not right in quashing the various letters and notices which were under challenge and the order of the Writ Court is liable to be set aside."
24. In the present batches of cases, this Court vide order dated 11th August, 2017, had directed the respondent-State to measure the distance of the concerned saw mills from the nearest forest boundary in presence of the parties and to prepare a report and file counter affidavit enclosing the same. In pursuance of the order dated 11th August, 2017, a supplementary counter affidavit has been filed on behalf of the respondents, enclosing the copies of the reports submitted by the concerned Forest Divisions. It has been stated inter alia in the said supplementary counter affidavit that the representatives of ten saw mills of different Forest Divisions of Hazaribagh region have refused to put their signatures on the distance measurement report and one saw mill owner of Simdega Forest Division could not sign it as he was out of Jharkhand during the measurement. The rest saw mills owners have duly signed the 19 measurement reports. Learned AAG, while referring to the reports submitted by different Forest Divisions, informs that the distance of the concerned saw mills from the notified forest has been found to be less than 05 Kms.
25. The contention of the petitioners that their saw mills have been established prior to the year 1996 and as such the direction contained in the order passed by the Hon'ble Supreme Court in T.N. Godavarman Thirumulkpad (supra.) is not applicable to their cases is not acceptable as the said issue has already been settled by the learned Division Bench of this Court in the case of M/s Itki Saw Mills (Supra.). The petitioners have also failed to show any document on record that their saw mills come under the Municipal Area, Notified Area or Industrial Area notified by the State Government and as such, petitioners do not come under the exempted category so as not to maintain the optimum distance of 05 kms. from the notified forest.
26. Under the aforesaid circumstance, once the validity of the earlier circulars have attained finality and most of the petitioners by impliedly accepting the circulars requested the Government to give them time to shift their saw mills, the arguments of the learned Senior Counsel for the petitioners that the order dated 05.10.2015 passed by the Hon'ble Apex Court has given new breath to the petitioners cannot be accepted. Moreover, it appears from the record that when the MoEFCC, Government of India by framing the guidelines dated 11.11.2016 fixed the minimum limit of location of wood based industries as 10 kms. aerial distance from the notified forest, the newly constituted SLC of the State of Jharkhand vide letter dated 07.04.2017 requested the MoEFCC, Government of India for relaxation of the said distance explaining the reason that if the said limit is fixed as 10 kms aerial distance, 382 Saw Mills out of 414, will come under the said 10 kms. distance. Subsequently, the MoEFCC, Government of India issued amended notification dated 11.11.2016 providing inter alia that in the States/UTs (other than North Eastern States), the wood based industries shall be allowed to operate as per state-specific order/approval of the Hon'ble Supreme Court/Hon'ble High Court of the concerned State/Central Empowered Committee so far as their 20 distance from the boundary of nearest notified forests or projected areas is concerned. The writ petitioners, however, have not been able to show any material change in the circumstances so as to seek any relaxation in the distance fixed by the State Government after due examination of the issue.
27. Mr. Sinha, learned senior counsel for the petitioners, has further contended that the Act, 1990 and Rules, 1993 framed for the purpose of establishment and operation of the saw mills nowhere put any restriction of distance of a saw mill from the notified forest and unless the terms and conditions of the licence as enumerated in Rule 4 of the Rules 1993 are amended, the respondent authorities cannot put such restriction by way of an administrative order. In the State of West Bengal, the distance of the saw mill from the forest boundary has been fixed after amending the Rules vide "The West Bengal Forest (Establishment and Regulation of Saw Mills and other Wood-Based Industries) Rules, 1982", however, no such exercise has been done in the State of Jharkhand.
28. So far as the said issued is concerned, in the case of Comptroller & Auditor General of India and others Vs. Mohan Lal Mehrotra and Ors., reported in [1992] 1 SCC 20, the Hon'ble Supreme court has held as under:-
12. The High Court is not right in stating that there cannot be an administrative order directing reservation for Scheduled Castes and Scheduled Tribes as it would alter the statutory rules in force. The rules do not provide for any reservation. In fact, it is silent on the subject of reservation. The Government could direct the reservation by executive orders. The administrative orders cannot be issued in contravention of the statutory rules but it could be issued to supplement the statutory rules. (See: the observations in Santram Sharma v.
State of Rajasthan, (1968) 1 SCR 111. In fact similar circulars were issued by the Railway Board introducing reservations for Scheduled Castes and Scheduled Tribes in the Railway services both for selection and non-selection categories of posts. They were issued to implement the policy of the Central Government and they have been upheld by this Court in Akhil Bhartiya Soshit Karamchari Sangh (Railways) v., Union of India, (1981) 1 SCC 246.
29. In the case of Dhananjay Malik & Ors. Vs. State of Uttaranchal & Ors. reported in [2008] 8 SCC 171, the Hon'ble Supreme Court has held as under:-
"14. A Constitution Bench of this Court in the case of Sant Ram Sharma vs. State of Rajasthan, AIR 1967 SC 1910, has pointed out at p.1914 SC that the Government cannot amend or supersede statutory Rules by administrative instructions, but 21 if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."
30. There can be no dispute with regard to the proposition that any administrative order of the government cannot go against the tenor of any rules or any other statutory law, but where the rules are silent on a particular point, there can be an executive order/instruction to supplement the statutory rules. It is not the case of the petitioners that the rules framed for establishment and operation of the saw mill provides contrary provision. Moreover, the administrative order has been issued in the present case on the basis of the recommendation of the expert committee constituted in compliance of the order(s) passed by the Hon'ble Supreme Court. Thus, merely due to the reason that before issuing the administrative/executive order, the rules/relevant provisions have not been amended, does not make the said order(s) ineffective.
31. Moreover, Section 5 of the Act, 1990 provides that no person shall establish a saw mill or saw pit except under the authority on and from the appointed day subject to the conditions of a licence granted in that behalf under the Act. It further provides that no person shall operate a saw mill or a saw pit in existence on the appointed day unless he is granted a licence in that behalf under the Act on an application made by said person within a period of 30 days from such date. Section 6 of the Act, 1990 itself empowers the State Government to declare any area as prohibited for a period of three years and in that case no licence shall be renewed during the said period and a saw mill or saw pit situated in that area shall cease to operate and the sawing operation has to be closed. It is, thus, evident that regulatory provisions of the Act, 1990 contemplate not only for refusal to grant or renewal of licence but also cessation of the saw mill business even during the currency of licence without any compensation to be paid by the State Government in the interest of the conservation of forests and environment. No person can thus claim an absolute right to carry on business of saw mill.
32. On perusal of the order dated 12.12.1996 passed in the case of T.N. Godavarman Thirumulkpad (Supra.), it appears that the Hon'ble Supreme Court had directed the State Governments to 22 constitute an Expert Committee. In para 7(iii) of the said order, it has been observed that the expert committee would assess the optimum distance from the forest- qua that State at which the saw mill should be located. In compliance thereof, the expert committee was constituted by the erstwhile State of Bihar and the committee reported that the minimum distance of the saw mills, veneer mills and plywood mills and any other timber based industry should be 05 kms. from the notified forest area, however, the mills situated in the notified municipality, municipal corporation and notified area prior to 12.12.1996 were exempted from the said distance. The CEC constituted for implementation of the orders passed by the Hon'ble Supreme Court in the case of T.N Godavarman Thirumulkpad (Supra.), also empowered the State Government vide notification dated 11.9.2017 for reallocation of wood based units from one place to another. The Hon'ble Supreme Court, vide order dated 05.10.2015 authorized the MoEFCC, Government of India to issue appropriate guidelines in conformity with the order(s) of the Hon'ble Supreme Court relating to assessment of timber availability for wood-based industries and grant of licence/permission to the said industries including addition of new machineries and also utilization of amounts recovered from the wood-based industries and connected matters. Accordingly, the guidelines dated 11.11.2016 regarding the restriction on location of wood based industries was made and as per the amended guideline dated 11.9.2017, the issue of location of the wood based industries has been left to be decided as per the specific order of the State or the approval of the Hon'ble Supreme Court/High Court of the concerned State or by the Central Empowered Committee. The petitioners have not brought on record any such decision whereby approval for running the saw mill has been made in their favour by any of the court/authorities mentioned in the guidelines of the MoEFCC, Government of India dated 11.9.2017. On the other hand, it appears that the learned Division Bench of this court while dealing with the similar issue in the case of Itki Saw Mills (Supra.), has already held the action of the State Government fixing the minimum distance of saw mills as 05 kms. from the notified forest as legal and justified.
33. Further, on perusal of the impugned notices issued to the petitioners, it appears that the same were issued in compliance of the 23 order of the Hon'ble Supreme Court dated 12.12.1996 whereby the petitioners were asked to give proposal either to shift their saw mills within one month or it would be presumed that they are not desirous of shifting their saw mills. The directions issued by the Hon'ble Supreme Court in the order dated 12.12.1996 has wide amplitude. It is true that the ban imposed by direction no.1 prohibiting any non- forest activity within the area of any "forest" or all on-going activity within any forest in any state throughout the country without the prior approval of the Central Government, applies to forest areas as understood by its dictionary meaning but there is a clear nexus between the "activities" inside the forest and running of saw mills etc. outside it. The timber for running saw mills comes from the forest and that is why while putting a general ban on non-forest activity, the Hon'ble Supreme Court also directed to regulate the number of saw mills, veneer and plywood mills, depending on the extent of forest which could sustain saw mills as well as for fixing the optimum distance from the forest, qua that State, at which a saw mill should be located. It is thus, clear that if the saw mills, veneer and plywood mills are allowed to run adjacent the forest, it will inevitably encourage and necessitate illegal cutting and felling of trees in the forest. Therefore, the object of preservation of forest and environment cannot be achieved without regulating the number and location of the saw mills. That is why, to begin with, the Hon'ble Supreme Court directed the State Governments to constitute Expert Committee to identify the "forest", ascertain the sustainable capacity of the forest qua the saw mills, veneer and plywood mills etc. and further to ascertain the number of existing saw mills which could "safely be sustained" in a State, their optimum distance from the forest qua that State at which the saw mills should be located by constituting Expert Committees. The expert committee constituted by the erstwhile State of Bihar carried out meticulous work in this regard and submitted its report and only thereafter the Government of unified Bihar fixed the optimum distance as 05 kms from the notified forest which has been adopted by the expert committee of the State of Jharkhand.
34. The next argument of Mr. Sinha is that the impugned notices have been issued in violation of principles of natural justice as the same have been issued without any prior show cause notice to the 24 petitioners. I do not find any merit in this contention also. The impugned letters have been issued in accordance with the general decision taken by the State Government in compliance of the order(s) of the Hon'ble Supreme Court passed in the case of T.N Godavarman Thirumulkpad (supra.). It is not the case of the petitioners that their saw mills are situated beyond the limit of 05 kms. from the boundary of notified forest, rather in response to the impugned letters/notices, many of the petitioners have sought time to shift their saw mills. If any universal decision is taken and applied universally to all the units coming under the effective zone, there is no need to serve show cause notices to each and every individual. In the present case, it has not been alleged against the petitioners that they have violated the terms and conditions prescribed under any rules/statute which would require serving of show cause notices to explain the alleged violation. Even if prior show cause notices had been issued to the petitioners, it would not have changed the position.
35. Now, coming to the argument of Mr. Krishna Murari, learned counsel appearing for the second set of the writ petitions. I have perused the latest resolution issued by the MoEFCC, Government of India dated 11th September, 2017. In view of Paragraph No. 5(b) of the said resolution, a Wood Based Industry can be established in an Industrial Estate or a Municipal Area, irrespective of the distance from the boundary of the nearest notified forest or protected area. The words "Industrial Area" cannot be construed as Industrial Estate in its general meaning. The term "Industrial Estate" has been defined under sub-clause (a) of clause 1 of the said resolution dated 11th September, 2017 as any area notified by the State Government or Union Territory Administration for establishment of wood based industries. It is not the case of the petitioners that their saw mills are situated within the industrial area notified by the State Government, rather the same are situated over the subleased land of BSL for undertaking industrial activities.
36. The interference of this court has been sought under its extraordinary writ jurisdiction against the decision of the State Government fixing the optimum distance of saw mills as 5 Kms. from the notified forest in pursuance of direction of the Hon'ble Supreme 25 Court and on the basis of the finding of the expert committee. In my opinion, it would not be appropriate to exercise the power conferred under Article 226 of the Constitution in view of the fact that increase of population, urbanisation and industrialisation has led to mushrooming of saw mills and other wood based industries which resulted in rapid depletion of forest cover. Thus, the same has resulted in serious ecological imbalance which is an alarming situation and it was required to be checked at the earliest. No material has been brought on record by the petitioners to show that the decision of the State Government is illegal or incorrect so as to warrant any interference in writ jurisdiction. The petitioners have also not contended that the respondent authorities should have fixed any lesser distance than 05 kms. from the notified forest area for location of wood based industries for any justified reason, rather the petitioners have put challenge to the very decision of the state government itself fixing the distance of 05 kms. from the notified forest area.
37. In the case of Sachldanand Pandey vs. State of West Bengal, reported in (1987)2 SCC 295, the Hon'ble Supreme Court had the occasion to deal with the question of interference by Courts in matters having bearing on the environment. In para 4 of the said judgment it is held as under:--
"4. .........Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Article 48- A of the Constitution, Directive Principle which enjoins that "The State shall endeavour to protect and Improve the environment and to safeguard the forests and wild life of the country", and Article 51A(g) which proclaims it to be the fundamental duty of every citizen of India "to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures." When the Court is called upon to give effect to the Directive Principle and the fundamental duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy-making authority. The least that the Court may do is to examine whether appropriate considerations are borne in mind and irrelevancies excluded. In appropriate cases, the Court may go further, but how much further must depend on the circumstances of the case. The Court may always give necessary directions. However, the Court will not attempt to nicely balance relevant considerations. When the question involves the nice balancing of relevant considerations, the Court may feel Justified in resigning itself to acceptance of the decision of the concerned authority. ............"
38. As already observed hereinabove, the directions issued by the Hon'ble Supreme Court vide order dated 12-12-96 and subsequent orders referred to above are intended to protect and safeguard the 26 forests and environment and those directions can neither be fully implemented nor the forests and environment can effectively be safeguarded without regulating the business affairs of saw mills and other timber-related industries i.e., plywood and veneer mills etc. As the impugned notices were issued to the petitioners in the light of the directions of the Hon'ble Supreme Court, no interference in this regard is warranted so as to permit unregulated and unchecked running of saw mills and other wood based industries.
39. In view of the aforesaid facts and circumstances and the discussions made herein above, all these writ petitions are hereby dismissed. However, the petitioners, after shifting the saw mills in terms with the decision of the Government of Jharkhand, are at liberty to file respective applications before the concerned licensing authorities for consideration of their cases of renewal/grant of licenses which shall be considered by said authorities in accordance with law and appropriate decision shall be taken within a period of 2 (two) months from the date of receipt of respective applications from the petitioners on shifting of their saw mills beyond the distance of 05 kms. from the nearest boundary of the notified forest.
40. Consequently, I.A. No.6852 of 2016, I.A. No.7453 of 2017 & I.A. No.9174 of 2017 in W.P.(C) No.4808 of 2016; I.A. No.1212 of 2018 & I.A. No.9070 of 2017 in W.P.(C) No.1355 of 2017; I.A. No.2062 of 2018 in W.P.(C) No.218 of 2017; I.A. No.8257 of 2016 in W.P.(C) No.4529 of 2016; I.A. No.6893 of 2016 in W.P.(C) No.5529 of 2016; and I.A. No.6895 of 2016 in W.P.(C) No.5530 of 2016 also stand dismissed.
(Rajesh Shankar, J.) Sanjay/AFR