Orissa High Court
Afr vs State Of Odisha And Others ..... Opp. ... on 15 December, 2023
Author: B.R. Sarangi
Bench: B.R. Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 20221 OF 2023
In the matter of an application under Articles 226 and
227 of the Constitution of India.
---------------
AFR Sanjib Kumar Mohanty ..... Petitioners and others
-Versus-
State of Odisha and others ..... Opp. Parties For Petitioners : M/s. B. Bhuyan, S. Sahoo and S.S. Bhuyan, Advocates.
For Opp. Parties : Mr. D.K. Mohanty, Addl. Government Advocate [O.P. Nos. 1 to 5] Mr. Abhishekh Dash, A.K. Dash, A. Khandelwal and A. Mishra, Advocates [O.P. Nos. 6, 7 & 8] P R E S E N T:
THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R. SARANGI AND THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN Date of hearing: 06.12.2023:: Date of judgment: 15.12.2023 Page 1 of 71 DR. B.R. SARANGI, J. The petitioners, in this writ petition filed by way of public interest litigation, seek direction to the opposite parties to cause an enquiry with regard to involvement of two Saw Mills, namely, "M/s Behera Saw Mill" and "M/s Jalaram Saw Mill", of which opposite parties no.6 and 7 are respectively the proprietors, in illegal wood logging and wood laundering and take appropriate action. They further seek direction to the opposite party-authorities to take action for relocating/shifting of those Saw Mills to a radial distance beyond the restrictive area of Similipal Reserve Forest (National Park), Hatikote Reserve Forest, Mancha Bandha Reserve Forest and Village Forest.
2. The factual matrix of the case, in brief, is that the petitioners, claiming to be public spirited persons having no personal interest, individual gain, private motive or oblique reasons, have filed this public interest litigation, stating inter alia that the private opposite parties no.6 and 7 are the proprietors and owners of M/s Page 2 of 71 Behera Saw Mill and M/s Jalaram Saw Mill situated in Chancha Industrial Estate, Baripada. M/s Behera Saw Mill is located over IDCO-Plot Nos.85 (P), 86(P), 87 and 88 measuring Ac.0.300 for 2500 cft per month, whereas M/s Jalaram Saw Mill is located on IDCO Plot Nos.8284, 860 (P), measuring Ac.0.344 for 2900 cft. per month. Validity of the licenses of both the Saw Mills were from 15.11.2021 up to 24.11.2023. The conditions attached to the licenses were as follows:-
a) License is not transferable.
b) The licenses shall maintain the registers in Forms D, E, F, and post them up to date at i.e end of each day 8 p.m. of the day.
c) The registers shall be produced for inspection and check when demanded by any Forest Officer of and above the rank of Forester. Any such Forest officer shall have the power to enter into the premises of this Saw Mill or Saw Pit. For the purpose of inspection and securing compliance with the condition of the license and any obstruction given in coming out, the said inspection and non-production of registers shall be deemed to be violation on the conditions of the license.
d) Monthly consolidated account shall be submitted to the Divisional Forest Officer before the 10th of the succeeding month.
e) The Saw Mill or Saw Pit as well as the timber shall be open for inspection by the Page 3 of 71 Officer mentioned in condition (3) whenever required.
f) The Saar Mill or Saw Pit shall be closed at the end of the period prescribed in the license and the license shall be returned to the Divisional Forest Officer.
g) The license shall not undertake sawing of timber belonging to other persons or job work, unless he is satisfied about the bonafides of such limber by examining the connected permits and the marks on the timber,
h) If the bonafides of the timber is suspected, he shall detain it and immediately report the fact to the nearest.
i) Forest Officer or Police Officer for taking further action.
j) The timber received from other persons for saving on job work shall be stacked separately both before and after sawing.
k) For breach of any of the above condition, the license is liable to punishment as provided under Section 14 of the Act."
2.1. The above two Saw Mills are situated within 1 KM radial distance of Mancha Bandha Reserve Forest, 5 KM radial distance from Hatikote Reserve Forest and 10 KM radial distance from Similipal Reserve Forest (National Park). Though opposite parties no.6 and 7 are the owners and proprietors of two Saw Mills, in fact they are not operating the said Saw Mills and those two Saw Mills are Page 4 of 71 operated by opposite party no.8, who is a wood mafia and involved in illegal felling of trees and wood laundering by utilizing these two Saw Mills which are situated within close proximity of Mancha Bandha, Hatikote and Similipal Reserve Forest (National Park). As such, every day a large number of trees are illegally cut and removed without any valid permit and in violation of Forest Act and Rules in force and brought to these Saw Mills for sawing and, thereby, making raw materials for production of different wood items in cheaper rate. To justify the same, it is pleaded that though these two Saw Mills belonged to two different persons, namely, opposite parties no.6 and 7, but the mobile number, which was given by both the Saw Mills, belonged to opposite party no.8. Thereby, those two Saw Mills are controlled and operated by opposite party no.8. It is further alleged that though the normal rate for sawing wood is Rs.50/- to Rs.100/- per cft., but opposite party no.8 is charging Rs.300/- per cft. from the local people as per his desire.
Page 5 of 71 2.2. Section 4 of the Odisha Saw Mills and Saw Pits (Control), Act 1991 prohibits establishment or operation of Saw Mills within reserve forest, protected forest or any forest area or within 10 KM from the boundary of any forest or forest area. No Saw Mills are to be allowed to be operated within such restricted area. For the purpose of granting license to the Saw Mills, the Odisha Saw Mills and Saw Pits (Control) Rules, 1993 were formulated by the Govt. of Odisha. Rule-4 of the Odisha Saw Mills and Saw Pits (Control) Rules, 1993 governs the field in the matter of granting license to the Saw Mill. Though it is the duty of the Saw Mill owner, whenever there are reasons to believe that wood brought to his Saw Mill is illegal/ unauthorized, to immediately inform the Forest Authorities regarding such illegal/unauthorized wood, opposite party no.8, who is a wood mafia, is not carrying out the purpose of the Rules, rather causing harassment to the public at large. Though grievances are made by the Page 6 of 71 petitioners to the authorities, namely, forest officials and police, no action is being taken.
2.3. Earlier, one Bholanath Behera, for the selfsame allegations, had approached this Court by filing W.P.(C) PIL No.13051 of 2023, which was disposed of by this Court, vide order dated 27.04.2023, directing the petitioner to file fresh representation to the appropriate authority. The forest authorities are not enquiring into the matter nor taking any legal action on the grievance made by the petitioners along with other inhabitants. It is further pleaded that since Similipal Reserve Forest (National Park) is situated at a distance of 10 KM radial, the Saw Mill owners should not be allowed to operate their Saw Mills within the restricted zone and the same should be either stopped or relocated/shifted to a radial distance beyond the restrictive area of the Similipal Reserve Forest (National Park), Hatikote Reserve Forest, Manchabandha Forest and Village Forest. Hence, this writ petition.
Page 7 of 71
3. Mr. S.S. Bhuyan, learned counsel appearing for the petitioners contended that opposite parties no.6 and 7, contrary to the terms and condition no.16(a) of the license, have transferred the control of the Saw Mills in the name of opposite party no.8, who is a wood mafia and is involved in illegal felling of trees, which was admitted by opposite party no.4 in the counter affidavit. But opposite party no.4, having hands in gloves with the private opposite parties no.6, 7 and 8, is not taking any action. To fortify his argument, it is contended that the mobile number provided by opposite party nos.6 and 7 in the Govt. website belonged to opposite party no.8 and, therefore, there is nexus between opposite parties no.6 and 7 with opposite party no.8 for illegal using of Saw Mills for illegal gain. It is further contended that the Saw Mills are being operated within the prohibitory zone and the forest officials are not regularly monitoring the activities of the Saw Mills by installing CCTV and taking any real time data, because of which they are heavily Page 8 of 71 involved in illegal felling of trees in the reserve forest. Thereby, the action of the authority is illegal, arbitrary and contrary to the provisions of law. It is further contended that the Saw Mills have also not taken consent to establish and operate from the State Pollution Control Board, whereas other Saw Mills are operating after obtaining the said permission. It is further contended that the Saw Mills even though are engaged in felling of trees from the reserve forest, but they have not obtained any license, as is mandated by the Forest Conservation Act, 1980. It is further contended that Baripada City in the year 2023 has been recorded as the hottest place, which warrants an immediate action to prevent the work being carried out by the Saw Mills directly affecting the environment. It is further contended that even if the Saw Mills have rehabilitated as per the orders of the Supreme Court, but the said orders never intended for the rehabilitation of the Saw Mills inside the prohibitory zone by establishing industrial estate. It is contended that the Page 9 of 71 legislative intent behind the Act was to regulate the Saw Mill operation throughout the State and to control deforestation. Before enactment of the Act, the license was required by private individuals to operate within forests and in the surrounding. Subsequently, the 1991 Act was introduced incorporating the absolute ban in the prohibitory zone. It is further contended that the 3rd proviso introduced after amendment has to be read constructively with the first proviso and not destructively and if done the latter would defeat the legislative intent of the Act so also the force of the Act would be stripped away and would result in the whole Act being reduced to mere pieces of paper.
To substantiate his contention, learned counsel appearing for the petitioners has relied upon the judgments of this Court, as well as apex Court in the cases of Laxminarayan Saw Mill v. State of Odisha, 1995 (1) OLR 1; Saraswati Saw Mill v. State of Odisha, (1995) 79 CLT 61, Sushila Saw Mill v. State of Odisha, Page 10 of 71 (1995) 5 SCC 615; T.N. Godavarman Thirumulpad v. Union of India, (1997) 2 SCC 267; and Samatha v. State of Andhra Pradesh, AIR 1997 SC 3297.
4. Mr. D.K. Mohanty, learned Addl. Government Advocate appearing for the State-opposite parties no.1 to 5 vehemently contended that action has been taken in compliance of the orders passed by the apex Court, but that itself cannot enure to the benefit of the petitioners. Rather, the present writ petition, in the nature of public interest litigation, is not maintainable either in facts or in law. As such, the nature of allegations, which have been made by the petitioners against opposite parties no.6, 7 and 8 is purely of "personal interest" but not of "public interest". It is further contended that the apex Court in W.P.(C) No. 356 of 2007 and in different IAs passed orders on 16.08.2010 that the State of Odisha to implement the directions of the apex Court contained in orders dated 10.07.2009 and 07.05.2010 and carry out necessary amendments to the provisions of the Act and Rules Page 11 of 71 framed thereunder in order to give effect to the rehabilitation plan and that the industrial estates have to be identified so that the Saw Mills are appropriately rehabilitated in terms of the directions issued by the apex Court. It is further contended that the allegations made by the petitioners that the two Saw Mills of opposite parties no.6 and 7 are operated and controlled by opposite party no.8 involving rampant illegal felling of trees and wood laundering and these two Saw Mills are situated within 10 KM radial distance of reserve forest is not correct. It is contended that opposite parties no.6 and 7, being the proprietors of the above named Saw Mills, submitted the documents like monthly returns, show cause notices, etc. and, as such, opposite party no.8 is being authorized by the proprietors of the Saw Mills to receive any type of letters, documents from all sources and execute documents as well as verification on behalf of them. As such, if the allegations made by the petitioners are taken into consideration, then opposite party no.8 has Page 12 of 71 not involved in any forest offence nor any case is pending against him for illegal felling of trees and removal of the same. It is further contended that the representation dated 17.04.2023 has not been received by the authority and after receipt of the representation dated 15.05.2023, the ACF (Enforcement), Baripada Forest Division was directed to conduct an enquiry with regard to the allegations made in the representation, who in turn conducted the enquiry and submitted his report vide letter dated 04.07.2023 indicating that the allegations regarding illegal establishment of two Saw Mills are not correct. Similarly, the allegation of furtive sawing of timbers by the smugglers with the help of illegal Saw Mills is also not correct. As such, the allegations made in the representation are incorrect and the same have been denied by the ACF (Environment). Furthermore, the functioning of the Saw Mills is recorded in the CCTV cameras. To ensure working of all the cameras, continuous power supply along with provision for power Page 13 of 71 back up was there. The CCTV footages were submitted on weekly basis to the Division Forest Office for smooth monitoring as well as functioning of their Saw Mills. Thereby, the allegations so made by the petitioners are not correct and, as such, the writ petition filed by the petitioners in the nature of "personal interest litigation"
should be dismissed with cost.
5. Mr. Abhishekh Dash, learned counsel appearing for opposite parties no.6, 7 and 8 vehemently contended that the allegations made by the petitioners, that the establishment and operation of the Saw Mills by opposite parties no.6 and 7 within 1 KM radial distance of Mancha Bandha Reserve Forest, 5 KM radial distance of Hatikote Reserve Forest and 10 KM radial distance of Similipal (National Park) is in violation of Section 4 (1) of the Odisha Saw Mills and Saw Pits (Control) Act, 1991;
and that the delegation of control with respect to Saw Mills by the licensee-opposite parties no.6 and 7 in favour of opposite party no.8 is impermissible under the terms of Page 14 of 71 the license; and that there are reasons to believe that woods brought to the Saw Mills are illegal and unauthorized and, as such, the Mills are involved in wood laundering, have no legs to stand. It is contended that establishment of Saw Mills inside the identified industrial estate (Chancha Industrial Estate) is not violative of Section 4 (1) of the Odisha Saw Mills and Saw Pits (Control) Act, 1991, as those Saw Mills, which were closed down, were established again in obedience to the direction of the apex Court, referred to above, for rehabilitation of the Saw Mills in the State, and in pursuance of the amendment made to Section 4(1) of the Act by inserting third proviso thereto. It is further contended that there is no transfer or delegation of control over Saw Mills by the proprietors-opposite parties no.6 and 7 in favour of opposite party no.8. As such, the Saw Mills are not involved in any kind of illegal timber business, as is evident from their track record, and they have no criminal antecedent till date. Therefore, in absence of any Page 15 of 71 materials, the writ petition, which has been filed by way of public interest litigation by making bald allegations, is not maintainable. Consequentially, dismissal of the writ petition is sought for with heavy cost.
6. This Court heard Mr. S.S. Bhuyan, learned counsel appearing for the petitioner; Mr. D.K. Mohanty, learned Addl. Government Advocate appearing for opposite parties no.1 to 5; and Mr. Abhishekh Dash, learned counsel appearing for opposite parties no.6, 7 and 8 and perused the record. Since pleadings have been exchanged, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.
7. To resolve the dispute, this Court framed the following issues:
(i) Whether the public interest litigation is maintainable on the basis of the allegations made in the writ petition?Page 16 of 71
(ii) Whether the authorities are empowered to establish/rehabilitate the Saw Mills of opposite parties no.6 and 7 in the locations, where they are established in terms of the provisions of the Act and the Rules framed thereunder and in compliance of the direction given by the apex Court?
(iii) Whether the opposite parties no.6 and 7 have transferred the control of their Saw Mills to opposite party no.8? and
(iv) Whether the Saw Mills of opposite parties no.6 and 7 are involved in any kind of illegal timber business so as to direct for their closure?
Issue No.(i) :
8. Now, it is to be seen whether the present writ petition filed in the guise of public interest litigation is for the betterment of the society at large or for benefiting any individual.
8.1. In Malik Bros v. Narendra Dadhich, (1999) 6 SCC 552, the apex Court held as follows:-Page 17 of 71
"... a public interest litigation is usually entertained by a Court for the purpose of redressing public injury enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the vindication of the rule of law, effect access to justice to the economically weaker class and meaningful realization of the fundamental rights. The direction and commands issued by the courts of law in a public interest are for the betterment of the society at large and not for benefiting any individual. But if the Court finds that in the garb of a public interest litigation actually an individual's interest is sought to be carried out or protected, it would be the bounden-duty of the Court not to entertain such petitions as otherwise a very purpose of innovation of public interest litigation will be frustrated. It is in fact a litigation in which a person is not aggrieved personally but brings an action on behalf of the downtrodden mass for the redressal of their grievance."
In view of the law laid down by the apex Court, in our considered opinion, on Public Interest Litigation (PIL), redressal of public injury, enforcement of public duty, protection of social rights and vindication of public interest must be the parameters for entertaining a PIL. The Court has a bounden duty to see whether any legal injury is caused to a person or a cluster of persons or an indeterminate class of persons by way of infringement of Page 18 of 71 any constitutional or other legal rights while delving into a PIL. The existence of any public interest as well as bona fide are the other vital areas to come under the Court's scrutiny. In absence of any legal injury or public interest or bona fide, a PIL is liable to be dismissed at the threshold. It is to be borne in mind that ultimately it is the rule of law that is to be vindicated. As such, there is a need for restrain on the part of the public interest litigants when they move Courts. The Courts should also be cautious and selective in accepting PIL as well. 8.2. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be 'publicity interest litigation' or 'private interest litigation'. If not properly regulated and abuse averted, it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant or poke ones nose into for a probe. It cannot also be invoked Page 19 of 71 by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration.
8.3. In Ashok Kumar Pandey v. State of West Bengal, 2003 (9) Scale 741, the apex Court held as follows:
"Public Interest Litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil and public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive Page 20 of 71 brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. Court must be careful to see that a body of persons or member of public, who approaches the Court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique consideration. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserves to be thrown out by rejection at the threshold and in appropriate cases with exemplary costs."
Laying down certain conditions on which the Court has to satisfy itself it was observed:
"The Court has to be satisfied about-
(a) the credentials of the applicant;
(b) the prime facie correctness or nature of the information given by him;
(c) the information being not vague and indefinite;
The information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interest;
(i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and Page 21 of 71
(ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive action. In such case, however, the Court cannot afford to be liberal."
The apex Court, on the point of exercising restraint, held that it has to be very careful that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The Court hardening its stand said:-
"The court has to act ruthlessly while dealing with imposters and busy-bodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono public, though they have no interest of the public or even of their own to protect."
8.4. In T.N. Godavarman Thirumulpad v. Union of India, (2006) 5 SCC 28, the apex Court, relying upon the judgments of S.P. Gupta v. President of India, AIR 1982 SC 149 : 1981 Supp. SCC 87, Janata Dal v. H.S. Chowdhary, AIR 1993 SC 892, after noticing that lakhs Page 22 of 71 of rupees had been spent by the petitioner to prosecute the case, held as under:-
"it has been repeatedly held by the Court that none has a right to approach the Court as a public interest litigant and that Court must be careful to see that the member of the public who approaches the Court in public interest, is acting bona fide and not for any personal gain or private profit or political motivation or other oblique consideration.
................. while the Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow their process to be abused by a mere busybody, or a meddlesome interloper or wayfarer of officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration."
8.5. Undisputedly, the petitioners have approached this Court of equity invoking jurisdiction under Articles 226 and 227 of Constitution of India.
In Ramjas Foundation v. Union of India, AIR 1993 SC 852, the apex Court held that who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Page 23 of 71 Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another.
Similar view has also been taken in K.R. Srinivas v. R.M. Premchand, (1994) 6 SCC 620, where the apex Court held that when a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective.
In Noorduddin v. K.L. Anand (1995) 1 SCC 242, the apex Court held that Judicial process should not become an instrument of oppression or abuse of means in the process of the Court to subvert justice for the reason that the interest of justice and public interest coalesce. The Courts have to weigh the public interest vis-à-vis private interest while exercising their discretionary Page 24 of 71 powers. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions.
Similar view has also been taken in Dr. Buddhi Kota Subbarao v. K. Parasaran, AIR 1996 SC 2687, and Ramniklal N. Bhutta v. State of Maharashtra, AIR 1997 SC 1236.
8.6. In Kishore Samrite v. State of U.P., (2013) 2 SCC 398, the apex Court laid down guidelines to the Court, in the matter of entertaining the PIL, to the following effect:-
"(1) The obligation to approach the Court with clean hands is an absolute obligation.
(2) Quests for personal gains haver become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-
shadowed the old ethos of litigative values for small gains.
(3) A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not settled to any relief, interim or final. Page 25 of 71 (4) The Court must ensure that its process is not abused and in order to prevent abuse of the process the Court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would duty bound to impose heavy costs. (5) Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
(6) It is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as a result of abuse of the process of the Court. One way to curb this tendency is to impose realistic or punitive costs"
.
Similarly, in K.D. Sharma v. Steel Authority of India Ltd., (2008) 12 SCC 481, the apex Court held that no litigant can play 'hide and seek' with the Courts or adopt 'pick and choose'. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a Page 26 of 71 litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the Court.
8.7. In State of Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402, the apex Court in paragraphs-143 and 181 of the judgment held as follows:-
"143. Unfortunately, of late, it has been noticed that such an important jurisdiction which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives. We think time has come when genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged. In our considered opinion, we have to protect and preserve this important jurisdiction in the larger interest of the people of this country but we must take effective steps to prevent and cure its abuse on the basis of monetary and non-monetary directions by the courts.
181. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:
(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.Page 27 of 71
(2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter. (3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting Page 28 of 71 similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations".
Similar view has also been taken by this Court in Chhabindra Mukhi v. State of Odisha, 122 (2016) CLT 609.
8.8. Taking into consideration the above principles of law laid down by the apex Court and applying the same to the present context, the contention raised by learned counsel appearing for the opposite parties, that the petitioners have filed "personal interest litigation" in the nature of "public interest litigation" to vindicate their grievance against opposite parties no.6, 7 and 8, is not tenable in the eye of law. But fact remains, the Saw Mills of opposite parties no.6 and 7, which have been rehabilitated by virtue of the direction given by the apex Court, are being managed by opposite party no.8. More so, Baripada City in the year 2023 was recorded as the hottest city and this has happened due to deforestation Page 29 of 71 affecting the environment greatly. Therefore, to protect and save the human lives and environment, if such a petition is filed, it cannot be said that it is a "personal interest litigation" and is liable to be dismissed. Rather, this is a public interest litigation, by which the petitioners otherwise seek to protect the environment, by bringing to the notice of the Court that such an irregularity has been caused, which is to be rectified by relocating the Saw Mills in conformity with the provisions of law. Thereby, issue no.(i) is answered in affirmative in favour of the petitioners.
Issue No.(ii):-
9. Before delving into this issue, the provisions of Section 4 of the Odisha Saw Mills and Saw Pits (Control) Act, 1991, which are relevant for the purpose of the case, are to be referred to:-
"4. Establishment and Operation of Saw Mill and Saw Pit--(1) On and after the appointed day, no person shall establish or operate a saw mill or saw pit except under Page 30 of 71 the authority and subject to the conditions of a license granted under this Act:
Provided that no person shall establish or operate any saw mill or saw pit within a reserved forest, protected forest or any forest area or within ten kilometers from the boundary or any such forest or forest area.
Provided further that the Government shall for reasons to be recorded in writing disallow a saw mill or saw pit other than those referred to in Clause (i) of Sub-section (2) established and operating prior to the appointed day within the area mentioned in the first proviso to continue such operation and may, In order to meet the needs of saw facilities for local population, allow a saw mill or saw pit referred to in Clause (i) of Sub- section (2), established and operating prior to the appointed day in such area, to continue such operation or may allow further establishment of saw mill or saw pit in such area either through the Department of Forest or through a State Public Sector Undertaking fully owned by it.
** [Provided also that the State Government may identify industrial estates within such area not exceeding two in one district and shall subject to compliance of the guidelines issued from time to time allow the Saw mills or Saw Pits for their establishment relocation and functioning in such Industrial estates.
*1. Inserted vide O.A. 2 of 2007, Orissa Gazette Ext. No.273 dated 22.02.2007.
**2.Inserted vide O.A. No.2 of 2011 Orissa Gazette Ext.
No.208 dated 25.01.2011.
Page 31 of 71
Explanation- For the purpose of this sub- section, the expression "industrial estate"
shall have the same meaning assigned to it under clause (i) of Section 2 of the Orissa Industrial Infrastructure Development Corporation Act, 1980.] (2) Notwithstanding anything contained in Sub-section (1):
(i) a saw mill or saw pit, established by the Orissa Forest Development Corporation Limited or by any other agency of the Government prior to the appointed day, may continue to be operated by such Corporation agency; as the case may be, and in such a case, the Corporation or agency, as the case may be, shall be deemed to be a licensee for the purposes of this Act;
(ii) a saw mill or saw pit other than one referred to in clause (i) and established prior to the appointed day, may continue to be operated, and shall be deemed to be a saw mill or saw pit, as the case may be, licensed under this Act;
(a) for a period of three months from the appointed day; or
(b) in an application made in accordance with Section 6 for a licence is pending on the expiry of the period specified in clause
(a) till the disposal of such application under sub-section (2) of Section 7."
9.1. Section 4(1) of the Act, 1991 puts a mandate that on and after the appointed day, no person shall Page 32 of 71 establish or operate a saw mill or saw pit except under the authority and subject to the conditions of a license granted under the Act. The first proviso attached to this Sub-section (1) of Section 4 also gives clarification that no person shall establish or operate any saw mill or saw pit within a reserved forest, protected forest or any forest area or within ten kilometers from the boundary of any such forest or forest area. By virtue of the provisions of Section 4 (1), the saw mills, established within the prohibited zone, as mentioned in the proviso, have stopped operating overnight by virtue of enactment of the Act. 9.2. Purpose of the proviso attached to the main provision is very clear that if the enacting portion of the Section is not clear, a proviso appended to it may give an indication as to its true meaning.
9.3. In West Derby Union v. Metropolitan Life Assurance Society, 1897 A.C. 647, Lord Herschell stated as under:-
Page 33 of 71
"Of course a proviso may be used to guide you in the selection of one or other of two possible constructions of the words to be found in the enactment, and show when there is doubt about its scope, when it may reasonably admit of doubt as to having this scope or that, which is the proper view to take of it."
Lord Watson in the same case stated as under:-
"There is no doubt that where the main provision is clear, its effect cannot be cut down by the proviso. But where it is not clear, the proviso, which cannot be presumed to be a suplusage, can properly be looked into to ascertain the meaning and scope of the main provision."
The aforesaid view has also been referred to in Jennings v. Kelly, 1940 A.C. 2006 : (1939) 4 All E.R. 464. 9.4. In Hindustan Ideal Insurance Co. v. Life Insurance Corporation, AIR 1963 SC 1083 : (1963) 2 SCR 56, the apex Court held that there is no doubt that where the main provision is clear, its effect cannot be cut down by the proviso, but where it is not clear, the proviso, which cannot be presumed to be a surplusage, can Page 34 of 71 properly be looked into to ascertain the meaning and scope of the main provision.
9.5. The words of a proviso must be given their full and natural meaning and cannot be restricted by an artificial construction unless the intention of the legislature is clearly expressed to show that they were intended to apply only to a limited number of cases. 9.6. In Devadsan T. v. Union of India, (1964) 4 SCR 680 : AIR 1964 SC 179, the apex Court held that a proviso should receive a strict construction. It cannot be so interpreted as to nullify or destroy the main provision. It is not open to add words to a proviso with a view to enlarge the scope of the provision. It must be restricted to the scope reasonably conveyed by the words used therein. The rule is applied with such strictness that it is not permissible even to draw any implication from the specification of any particular case in a proviso by the application of the maxim expression unius est exclusion Page 35 of 71 alterius so as to affect the interpretation of the enacting clause. A proviso unlike an exception should be taken in connection with the general language of the previous portion of the clause to which it is attached. 9.7. In view of the aforementioned interpretation attached to the meaning of the proviso, if Section 4 (1) of the Act is read as a whole, it would be evident that the first proviso creates a bar to establish or operate any saw mill or saw pit within a reserved forest, protected forest or any forest area or within ten kelometres from the boundary of any such forest or forest area. The issue relating to distance criteria for establishment of saw mills and saw pits contained in the first proviso, which is clarified to be radial distance (as crow flies), has been considered by this Court in the case of Maa Mangala Saw Mill v. State of Orissa, OJC No.11164 of 1996 decided on 08.11.1996.
Page 36 of 71 9.8. In Laxminarayan Saw Mill v. State of Orissa and others, AIR 1995 ORISSA 114 : 79 (1995) CLT 189 (FB), this Court, taking into consideration Section 4 (1), held that Section 4 (1) imposes an absolute bar which falls under the criteria of reasonable restriction and has been introduced for the welfare of the general public and the whole section has to be read completely and not in isolation. Section 4 (1) is the spirit of the Act and if allowed to be circumvented, the whole act loses its force. Paragraphs 7, 8, 10, 12, 15, 16, 18 and 21 of the said judgment, being relevant, are extracted hereunder:-
"7. The language employed in the proviso is simply clear. It creates a total ban against establishing a new saw mill/pit or operating the existing saw mill/ pit in the areas specified which can be described as, prohibited zone. Sub-section (1) of Section 4 mandates against establishing or operating a saw mill/pit except under the authority and subject to the conditions of a licence granted under the Act. In view of Section 24, all old licences come to an end. Clause
(i) of sub-section (2) of Section 4 carves out an exception in respect of existing saw mill/ pit established by the Orissa Forest Development Corporation Limited or by any other agency of the Government prior to the Page 37 of 71 appointed day. As a result, that saw mill/pit, even though within the prohibited zone, can continue to operate. Exception is only about existing saw mill/ pit, and even that class of operator cannot establish a new saw mill/ pit within the prohibited area. Clause (ii) (a) of Section 4(2) provides for continuation of the existing saw mill/pit as a deemed licensee under the Act for a period of three months from the appointed day. This was clearly necessary as a transitory measure to avoid hardship to the operator and also to gain time to apply fresh mind by the authorities. Section 6(2) provides for an application to be made at least one month before the expiry of the period of three months from the appointed day. Clause (ii)(b) of Section 4(2) provides that if such application is pending, the period of deemed licence shall be extended till the disposal of the application under Section 7(2). Section 7(2) provides for disposal of the application under Section 6(1) within a period of three months from the date of its receipt.
8. Before the Act was brought into force, the saw mill/pit belonged to two categories -
one established beyond the prohibited zone and the other established within the prohibited zone. The former did not require any licence, but the latter did. Section 4 created two classes of saw mills/pits, one situated within the prohibited zone and the other beyond that zone, Former class was banned and the latter was regulated. Thus, under the Act, even those saw mills/pits which did not require licence were brought in the net of the licensing provision. A transitory provision was made for all Page 38 of 71 varieties of saw mills/pits for a period of three months in the first instance and thereafter till the disposal of the application for licence under Section 6 in accordance with Section 7(2). The assumption that clause (ii)(b) of Section 4(2) applies even to the mills/pits situated within the newly created prohibited zone appears to be erroneous. It will have to be borne in mind that the non-obstante clause contained in sub-section (2) was meant not only to apply to the proviso to Section 4(1) but also to the substantive provision. Clause (ii)(b) of Section 4(2) was not meant for mills which are undisputedly in the prohibited area. One of the points to be considered while granting licence is whether or not the saw mill/pit is situated within the prohibited zone. On that question, there may be a dispute and if there is a dispute the matter has to be adjudicated upon. Such contingency was also required to be provided for. Under the circumstances, there is no scope for an interpretation that Section 4(2)(ii)(b) provides for a discretion in the officer to grant or refuse a licence to a saw mill/pit even within a prohibited zone. A discretion to grant or refuse licence in accordance with the law very much exists, but not in respect of cases governed by total ban. If discretion even in cases covered by the proviso is read to exist, the proviso is rendered otiose. Normally, interpretation leading to such result has to be avoided. Moreover, the provision as a whole will have to be read together and no part of it can be read in isolation.
xxx xxx xxx Page 39 of 71
10. The language employed in the proviso to Section 4(1) is plain and clear. It is capable of only one interpretation. It also is quite in consonance with the very object of the new Act. In this context, taking aid of any other principle of interpretation is unnecessary. Section 4 will have to be read as a whole and each part thereof will have to be reconciled to the other. Hence clause
(ii)(b) to sub-section (2) or any other clause cannot be read in isolation. Even if the language of the statute in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment or to absurdity presumably not intended, construction may be put upon it which modifies the meaning of the word and even the structure of the sentence. All this is permissible only when two constructions are reasonably possible and not when only one construction is possible. In that case, the opinion of the Court, howsoever strong, must yield to the language and it is Court's duty to give effect to the inevitable result and leave it to the legislature to amend or alter the law.
xxx xxx xxx
12. The basic approach to the interpretation of a statute has' been pithily put in the case of Utkal Contractors and Joinery Pvt. Ltd. v. State of Orissa, AIR 1987 SC 1454 thus (para 9):-
"...... .A statute is best understood if we know the reason for it. The reason for a statute is the safest guide to its interpretation. The Page 40 of 71 words of a statute take their colour from the reason for it. How do we discover the reason for a statute?
There are external and internal aids. The external aids are Statement of Objects and Reasons when the Bill is presented to Parliament, the reports of Committees which preceded the Bill and the reports of Parliamentary Committees.
Occasional excursions into the debates of Parliament are permitted. Internal aids are the preamble, the scheme and the provisions of the Act. Having discovered the reason for the statute and so having set the sail to the wind, the interpreter may proceed ahead. No provision in the statute and no word of the statute may be construed in isolation.
Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important. It is again important to remember that Parliament does not waste its breath unnecessarily. Just as Parliament is not expected to use unnecessary expressions.
Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation;Page 41 of 71
nor can it be assumed to make pointless legislation."
xxx xxx xxx
15. It is true that non-obstante clause is usually used to indicate the overriding effect, but it is not the rule of thumb. Sometimes, proviso can be treated as a substantive provision and a non-obstante clause as another provision. But assuming for a moment that Sub-section (2) has an overriding effect, is on the whole sub- section (I) and not merely on the proviso. Moreover, the overriding effect can be only to the extent of inconsistency and cannot travel beyond that limit. We are unable to notice any such inconsistency that would obliterate the substantive provision of total ban designedly created by the proviso to Section 4(1).
16. This takes us to the question No. 2.
Fundamental right to practise any profession or to carry on as occupation, trade or business is specified under Article 19(1)(g) of the Constitution. But this right is subject to limitations provided for in Sub- article (6), which permits the State to make a law imposing, in the interest of general public, Reasonable restrictions on the exercise of that right. The key words are "reasonable restrictions" and "in the interest of general public". What is reasonable restriction and what is in the interest of general public cannot be put in any strait jacket formula. All depends upon the object of the Act and its scheme. But the very words "reasonable restrictions" connote that they should not be arbitrary or of an Page 42 of 71 excessive nature beyond what is required in the interest of public. Though there is a presumption in favour of constitutionality of a statute, determination of reasonableness by legislature is not conclusive. It is subject to judicial review. These are the broad features and touchstones on the basis of which the validity of an enactment has to be tested. Considering the object sought to be achieved and the legislative background of the Act, it cannot be said that the total prohibition of saw mill/pit in the prohibited zone is not a reasonable restriction and is not in public interest. On the face of it, it is in public interest. No law can claim to be perfect for all times to come. Passage of time, new experiences etc. necessitate changes. The extent of the changes depends upon many factors. Forest is a national wealth. It is being denuded by illegal cutting. Considering the vast area involved and their situation in the far off places from the habitat area, it is becoming increasingly difficult to control the illegal activities. Earlier after experiemnt of imposing condition of licence within 80 Kms. did not serve the purpose. More drastic measure to achieve the same result was thought of. The saw mills/pits in or around the forest and forest area can be and has been the recipients of the illegal forest produce. They have great potentiality of destroying the evidence of unauthorised denuding of the forest. Physical control, though possible theoretically is not always practicable. If in this context a total ban has been put on the establishment and operation of the saw mills/pits within the forest and a radius of 10 . Kms. therefrom, there is no legal justification to make a Page 43 of 71 grievance. There has to be a balance between an individual and public interest, and in case of conflict, individual interest must yield to public interest. In the whole context, it cannot be said that this restrictions, which is obviously in general public interest, is unreasonable or excessive. The measure is essentially regulatory in nature and is neither unguided, nor unreasonable, nor discriminatory.
xxx xxx xxx
18. It was substituted that the right to regulate does not include the right to destroy. The business of saw mill and raw pit has not been completely destroyed. Beyond the prohibited zone, the business can be carried on. There is no right to carry on business at a particular spot.
xxx xxx xxx
21. Next submissions is that permitting continuation of the saw mills/pits established only by the Orissa Forest Development Corporation or other agencies of the Government is discriminatory. Now, private persons on one hand and Government or public bodies on the other belong to two distinct classes. Giving special facilities to the Government, its agents and statutory corporations has been recognised as valid and reasonable. In this case, classification has clear nexus to the object. Hence, the provisions cannot be faulted even on that ground."Page 44 of 71
9.9. In Saraswati Saw Mills (supra), this Court held that proviso to Section 4 (1) of the Act is not ultra vires and, thereby, is not violative of Article 14 of the Constitution of India.
9.10. In Sushila Saw Mill (supra), the apex Court held that Article 19(1)(g) and 301 of the Constitution of India is subjected to statutory regulation and Section 4 (1) puts a total embargo on the right to carry out saw mill operation within the prohibitory zone. The preservation of forest is a matter of great public interest and demanded for the total ban by legislation via the Act. The size and contiguity of the district does not matter, if all the area of the district falls under the prohibitory zone then no saw mill be permitted to function in the said district and it does not affect Articles 14 and 301 of the Constitution. 9.11. In T.N. Godavarman Thirumulpad (supra), the apex Court issued detailed directions for the sustainable use of forests and created its own monitoring Page 45 of 71 and implementation system through regional and State level communities, regulating the felling, use and movement of timber across the country in hope of preserving the nation's forest. The apex Court examined in detail all the aspects of the National Forest Policy, the Forest Conservation Act, 1980, which was enacted with a view to check further deforestation. It emphasized that the word "forest" must be understood according to its dictionary meaning of the term irrespective of the nature of ownership and classification thereof. According to this new broader definition, any forest thus defined, regardless of ownership, would be subject to Section 2 of the Act. Under new interpretation of forest land under Section 2 of the Act, States could no longer de-reserve protected forests for commercial or industrial (non-forestry) use without permission.
9.12. A "Forest" having not been defined, the meaning attached to forest has been considered by Page 46 of 71 various judgment of the apex Court, and some of which has been taken up for adjudication of the present case. 9.13. In T.N. Godavarman v. Union of India, AIR 1977 SC 1228, the apex Court, while considering Section 1 of Forest Conservation Act, held that the word "forest" covers all statutory recognized forests, whether designated as reserved, protected or otherwise for the purpose of Sec.2(i) of the Forest Conservation Act. 9.14. In Bhavani Tea and Produce Co. Ltd. v. State of Kerala, (1991) 2 SCC 463, the apex Court held that forest means a parcel of land on which trees have been grown. Similar view has also been taken by the apex Court in State of Kerala v. Pullangode Rubber and Proudce Co. Ltd. (1999) 6 SCC 99.
9.15. In Indian Airlines Ltd. v. Samaresh Bhownick, (1999) 6 SCC 99, the apex Court held that meaning of forest must be understood according to its dictionary meaning. It would, thus, appear that the Page 47 of 71 rubber plantation containing rubber trees, would be regarded as a private forest the destruction of which was sought to be prohibited by the 1949 Act. 9.16. In M.C. Meheta v. Union of India, (2004) 12 SCC 118 : AIR 2004 SC 4016, while considering Article 21 of the Constitution of India, the apex Court held that the term 'forest' is to be understood in the dictionary sense and also that any area regarded as a forest in government accords, irrespective of ownership, would be a forest. 9.17. In B.L. Wadhera v. Union of India, (2002) 9 SCC 108 : AIR 2002 SC 1913, the apex Court held as follows:
"Forest has not been defined under the Act but the Supreme Court in T.N. Godavarman Thirumulpad v. Union of India (1997) 2 SCC 267 has held that the word "forest" must be understood according to its dictionary meaning. It would cover all statutorily recognized forests whether designatred as reserved, protected or otherwise for the purposes of Section 2(i) of the Forest Conservation Act. The term "forest land"
occurring in Section 2 will include not only the forest as understood in the dictionary sense but also any area regarded as forest in the Page 48 of 71 government record irrespective of the ownership. The gifting of land, in the instate case, cannot in any way, be termed to be for a forest purpose as postulated by Section 2 of the Forest Conservation Act."
9.18. In view of the meaning attached to the word 'forest', it would cover all statutorily recognized forests whether designated as reserved, protected or otherwise for the purposes of Section 2(i) of the Forest Conservation Act. Therefore, it is the pivotal duty and responsibility of the State to protect the same through their forest officials and for growing consciousness among the citizens.
9.19. Therefore, to save the forest, by enacting the provisions contained in Section 4 (1) of the Act along with the proviso, there is a full restriction with regard to operation of the Saw Mills in the State of Odisha within prohibited zone of 10 KM radial distance from the preserved forest. The aforesaid view of the Court, in the case of T.N. Godavarman (supra), has been implemented Page 49 of 71 by the State Government, vide order dated 10.07.2009, stating that there should be no Saw Mills within 10 kms radial distance from the boundary of the forest area. The relevant extracts of the orders passed by the apex Court in T.N. Godavarman (supra) are quoted hereunder:-
Order dated 10.07.2009 :
"I.A. No.941 IN I.A. No. 754-755 WITH I.ANo.777, 1131-1133, 1138-1146, 1148, 1184, 1272, 1361, 1579-1580 in W.P.(C) No. 202/1995 with W.P.(C) No. 356 /2007.
These matters relate to saw mills in the State of Orissa. This Court had earlier directed that there should be no saw mills within 10kilometers from the boundary of the forest area. Many of the saw mills in the State of Orissa were closed down. The applicants in I.A. Nos. 1579 and 1580 also closed down their saw mills. We are told that some of the saw mills had obtained interim orders from the High Court but as those are contrary to the direction given by this Court, all those saw mills must also be closed down immediately.
We are told that the Orissa Forest Corporation has its own saw mills and these mills are given on lease to private parties. Such practices shall be stopped forthwith.
The State of Orissa to file a fresh affidavit to this effect within a period of four weeks.
The State shall arrange to have an industrial estate and take urgent steps to Page 50 of 71 this effect and shall also take steps to see that there shall be appropriate amendment to the Saw Mills Rules of 1991. It shall file an affidavit to this effect."
"I.A. No.941 IN I.A. No. 754-755 WITH I.ANo.777, 1131-1133, 1138-1146, 1148, 1184, 1272, 1361, 1579-1580 in W.P.(C) No. 202/1995 with W.P.(C) No. 356 /2007.
After this Court passed Order dated
10.07.2009 regarding closing of the mills in the State of Orissa, a large number of saw mills were closed. The State is of the view that for the saw mills were closed. The State is of the view that for the saw mills appropriate location could not be found as many of the areas are covered by the definition of forest. Now the State has proposed and want to set-up Industrial Estate (s) for establishment of saw mills for which they require amendment of the Orissa Saw Mills and Saw Pits (Control) Act, 1991.
In view of the statement made by the learned counsel for the State of Orissa, we direct that urgent steps may be taken in this direction at the earliest.
Post on 20.11.2009."
9.20. The above direction given by the apex Court resulted in closing down of majority of Saw Mills in the State of Odisha. Consequentially, the affected Saw Mill owners of the State approached the apex Court by filing Page 51 of 71 various interim applications seeking clarifications/ modifications/relaxation of the aforesaid directions. Evaluating the contentions raised, the apex Court, vide order dated 16.08.2010, directed for rehabilitation of those closed down Saw Mills and thereby directed the State of Odisha to make necessary arrangements to have industrial estates and take appropriate steps in that regard, if necessary, by making amendments to the provisions of the Saw Mills Act and the Rules framed thereunder. The relevant extract of the order dated 16.08.2010 passed by the apex Court is quoted below:-
"ORISSA SAW MILL MATTERS:
We have learned counsel for the parties as well as Mr. P.S. Narasimha, learned Amicus Curiae.
These applications relate to the saw mills in the State of Orissa. This Court has earlier directed that no saw mills should be established within a radius of 10 kms. from the boundary of the forest area.
Pursuant to the directions of the Court many of the saw mills in the State of Orissa were closed down. At the same time, this Court having realised that those saw mills which were closed down are required to be rehabilitated, passed the orders on 10.7.2009 directing the State of Page 52 of 71 Orissa to make necessary arrangements to have industrial estates and take appropriate steps in that regard, if necessary, by making amendments to the provisions of Orissa Saw Mills and Saw Pit (Control) Act, 1991 (hereinafter referred to as 'the Act) and the rules framed thereunder.
The Court vide its order dated 10.7.2009 accordingly, directed the State of Orissa to take urgent steps in that regard and ensure appropriate amendments to the said provisions of the Act and the Rules made there under so that the eligible amongst the closed saw mills could be appropriately rehabilitated in due course.
By another order dated 7.5.2010 based on the instructions submitted before the Court, a direction was issued requiring the State to take appropriate decision concerning amendments to the provisions of the said Act and Rules within a period of six weeks there from. already taken appropriate decision in the matter and complied with the directions of this Court. The necessary amendments to the provisions of the Act are required to be made by the Legislature.
In the circumstances, it would be appropriate to direct the State of Orissa to directions of this Court dated 10.7.2009 and 7.5.2010 and accordingly make and carry implement the out necessary amendments to the provisions of the Act and Rules framed there under in order to give effect rehabilitation plan. The industrial estates have to be indentified so that these applicants are appropriately Page 53 of 71 rehabilitated in terms of the directions issued by this Court from time to time. The exercise in this regard shall be completed within a period of six months from today. In such view of the matter, no adjudication is required in these applications and they are accordingly disposed of."
9.21. Now, in the name of rehabilitation, closed Saw Mills are being permitted to be opened at industrial estate area. The word "rehabilitation", as has been defined in Volabulary.com, reads thus:-
"Rehabilitation is the act of restoring something to its original state, like the rehabilitation of the forest that had once been cleared for use as an amusement park. The noun rehabilitation comes from the Latin prefix re-, meaning "again" and habitare, meaning "make fit." When something falls in to disrepair and needs to be restored to a better condition, it needs rehabilitation."
Primary Meanings of rehabilitation
1.n. the treatment of physical disabilities by massage and electrotherapy and exercises.
2.n. the restoration of someone to a useful place in society.
3.n. the conversion of wasteland into land suitable for use of habitation or cultivation."
Page 54 of 71 9.22. In Collector of 24 Parganas v. Lalit Mohan Mullick, AIR 1986 SC 622 : (1986) 2 SCC 138, the apex Court held that by rehabilitation what is meant is not to provide shelter alone. The real purpose of rehabilitation can be achieved only if those who are sought to be rehabilitated are provided with shelter, food and other necessary amenities of life. Providing medical facilities would come, within the concept of the word 'rehabilitation'.
9.23. In State of M.P. V. Narmada Bachao Andolan, (2011) 7 SCC 639: AIR 2011 SC 1989, the apex Court, keeping in view Sections 3 and 20 of the Land Acquisition Act, 1894 and Article 300-A of the Constitution of India, considered the "Rehabilitation" in paragraphs-26, 27, 28 to 31, 52, 94, 96 and 93, 75, 88, 101 and 183 to the following effect:-
"It is desirable for the authority concerned to ensure that as far as practicable persons who had been living and carrying on business or other activity on the land Page 55 of 71 acquired, if they so desire, and are willing to purchase and comply with any requirement of the authority or the local body, be given a piece of land on the terms settled with due regard to the price at which the land has been acquired from them. However, the State Government cannot be compelled to provide alternate accommodation to the oustees and it is for the authority concerned to consider the desirability and feasibility of providing alternative land considering the facts and circumstances of each case. (Para
26) In certain cases, the oustees are entitled to rehabilitation. Rehabilitation is meant only for those persons who have been rendered destitute because of a loss of residence or livelihood as a consequence of land acquisition. The authorities must explore the avenues of rehabilitation by way of employment, housing, investment opportunities, and identification of alternative lands. For people whose lives and livelihoods are intrinsically connected to the land, the economic and cultural shift to a market economy can be traumatic. The fundamental right of the farmer to cultivation is a part of right to livelihood.
"Agricultural land is the foundation for a sense of security and freedom from fear. Assured possession is a lasting source for peace and prosperity." India being a predominantly agricultural society, there is a "strong linkage between the land and the person's status in [the] social system".(Para
27) However, in case of land acquisition, "the plea of deprivation of right to livelihood under Article 21 is unsustainable". Article Page 56 of 71 300-A is not only a constitutional right but also a human right, but acquisition of land does not violate any constitutional/fundamental right of the displaced persons. However, they are entitled to resettlement and rehabilitation as per the policy framed for the oustees of the project concerned. (Paras 28 to 31) In the process of development, the State cannot be permitted to displace tribal people, a vulnerable section of our society, suffering from poverty and ignorance, without taking appropriate remedial measures of rehabilitation. The Court is not oblivious of the fact that social and economic reasons had caused disaffection, and thus, the tribal areas are today in the grip of extremism, as the tribal youths have become easy prey to the extremists' propaganda.
(Para 52) Rehabilitation on the other hand, is restoration of the status of something lost, displaced or even otherwise a grant to secure a dignified mode of life to a person who has nothing to sustain himself. This concept, as against compensation and property under Article 300-A, brings within its fold the presence of the elements of Article 21 of the Constitution of India. Those who have been rendered destitute, have to be assured a permanent source of basic livelihood to sustain themselves. This becomes necessary for the State when it relates to the rehabilitation of the already depressed classes like Scheduled Castes, Scheduled Tribes and marginal farmers in order to meet the requirements of social justice.(Para-94) Page 57 of 71 The rehabilitation has to be done to the extent of the displacement. The rehabilitation is compensatory in nature with a view to ensure that the oustee and his family are at least restored to the status that was existing on the date of the commencement of the proceedings under the 1894 Act. Each State has a right to frame the rehabilitation policy considering the extent of its resources and other priorities. One State is not bound if in a similar situation, another State has accorded additional facilities even over and above the policy. (Para-96) Compensation has to be understood in relation to the right to property. The right of the oustee is protected only to a limited extent as enunciated in Article 300-A. The tenure-holder is deprived of the property only to the extent of land actually owned and possessed by him. This is, therefore, limited to the physical area of the property and this area cannot get explained or reduced by any fictional definition of the word "family" when it comes to awarding compensation. Compensation is awarded by the authority of law under Article 300-A read with the relevant statutory law of compensation under any law made by the legislature and for the time being in force, only for the area acquired. Hence, major sons could not have been made allotments of land as separate family units. (Paras 93 and 75, 88 to 101 and 183"
Page 58 of 71
Thereby, in compliance of the order passed by the apex Court, the closed Saw Mills are to be opened at the industrial estate area by way of rehabilitation.
9.24. In compliance to the direction given by the apex Court, the State Government implemented the provisions contained in Section 4 of the Act, 1991 and added 3rd proviso, which has been inserted vide O.A. No. 2 of 2011 published in the Gazette Notification No.208 dated 25.01.2011, where power has been vested on the State Government that the State Government may identify industrial estates within such area not exceeding two in one district and shall, subject to compliance of the guidelines issued from time to time, allow the saw mills or saw pits for their establishment, relocation and functioning in such industrial estate.
9.25. Therefore, in the case at hand, the Saw Mills, which were closed by virtue of the preliminary orders of the apex Court issued in T.N.Godavarman case (supra), Page 59 of 71 have been rehabilitated and established inside the identified industrial estate, in terms of the third proviso to Section 4 (1) of the Saw Mills Act leading to establishment of the two saw mills (two being the maximum mills permissible in one district).
9.26. Guidelines have also been issued by the Government for establishment, relocation and functioning of Saw Mills, which have been published on 30.07.2011 to the following effect:-
"Guidelines for Establishment, Relocation and functioning of Saw Mills ( The 30th July 2011) No.-13891_ 10F-legal -3/2011-F& E Guidelines for establishment relocation and functioning of Saw Mills in the identified industrial estates of the State is indicated below as per the provisions contained in Orissa Saw Mills and Saw Pits (Control) Act, 1991 and Orissa Saw Mills and Saw Pits ( Control) Amendment Act, 2010.
Background Prior to 1980, the control of timber in transit or possession was regulated by the provision of Section 45 of the Orissa Forest Act, 1972. Under the said section of the Act, the Orussa Forest Saw Pits and Saw mills (Control) Rules, 1980 was brought in during 1980 which Page 60 of 71 prohibited establishment of Saw Mills inside the forest land within 80kms. From it's boundary without a valid license. In 1991, the Orissa Saw Mill and Saw Pits (Control) Act, 1991 was rought in for regulation of Saw Mill and Saw Pits in the State. The Act came into force on the 13th December 1991 after its publication in the Orissa Gazette. To facilitate implementation of the Act, Orissa Saw Mills and Saw Pits (Control) Rules, 1993 were framed which came into effect from the 18th November 1993. As per the Orissa Saw Pits and Saw Mills (Control) Rules, 1980, 427 Saw Mills existed in the State till 1991. After promulgation of the Saw Mills Act, 1991 and Rules, 1993 a further 132 number of Saw Mills were given licence based on the criteria of "more than 10 kms. distance" by road from the forest boundary. Thus the total number of licence holding Saw Mills in the State became 559 till 2002. Hon'ble High Court of Orissa in OJC No. 11164/1996 (Maa Mangala Saw Mill vrs. State & others) clarified that 10 kms. Distance from boundary of the nearest forest is to be the radial distance (as crow-flies). As per this clarification of the Hon'ble High Court, radial distance criteria was followed in implementation of the Saw Mills and Saw Pits (Control) Act, 1991 and most of the Saw Mills were closed. On the 2nd July 2008 only 24 Saw Mills existed in the State. After amendment in the Saw Mill Act during 2007, Orissa Forest Development Corporation started operating Saw Mills on contract basis and the total number of Saw Mills increased to 41. However, after the order of Hon'ble Supreme Court dated the 10th July 2009, 34 Saw Mills were closed and only 7 Saw Mills are functioning at present. As per the orders of Hon'ble Supreme Court, Orissa Saw Mills & Page 61 of 71 Saw Pits, Amendment Act, 2010 has been enacted which allows establishment, relocation and functioning of Saw Mills in two identified industrial estates (maximum two in one district) subject to compliance of the guidelines issued by the State Government from time to time. Hence, it has become necessary to formulate the guidelines for establishment, relocation and functioning of Saw Mills closed due to enforcement Of the Saw Mills & Saw Pits (Control) Act, 1991 and subsequent orders of the Supreme Court.
THE GUIDELINES Identification of Industrial Estate
1. The Industries Department shall identify industrial estates (maximum two in each district) for the purpose of establishment, relocation and functioning of Saw Mills in those industrial estates, the Department shall also indicate the sheds/ area available for establishment, relocation and functioning of Saw Mills.
2. Preference may be given to the industrial estate which is closer to the office of D.F.O /Forest Ranger/ Forester.
Eligibility for establishment, relocation and functioning of Saw Mills in identified industrial estate.
3. The eligibility of Saw Mills to be rehabilitated in the identified industrial estate will be determined by the following criteria:-
a) Priority will be given to Saw Mills in the State functioning for a longer period on the strength of valid license.Page 62 of 71
b) Saw Mills which were functioning with no-offence record, will only be rehabilitated. In case the Saw Mills have been booked for committing offences, first the offences need to be condoned by the Government seeing their gravity for considering them for rehabilitation in the identified industrial estate.
c) A list of Saw Mills having no record of offence against them will be prepared as per their seniority basing on duration of functioning on the strength of valid license. Such a list will be prepared by the P.C.C.D., Orissa.
d) Saw Mills having modern
technology and equipment will be
preferred.
4. The eligibility list of Saw Mills as per criteria narrated at Point 4 above will be put on the Notice board of the office of the P.C.C.F., Orissa and the Website of Forest & Environment Department. The eligible Saw Mills owners will be required to furnish their willingness for rehabilitation in the Industrial Estate giving three choices of industrial estates, to the P.C.C.F., Orissa by a specified date in sealed cover. The option exercised will be final.
5. The shed/land allotted to Saw Mills for establishment or relocation should be able to accommodate at least one horizontal bandsaw, one vertical bandsaw, one cross-cut-saw and other accessories.
6. Basing on the option exercised within the stipulated period, the decision regarding rehabilitation of the eligible Saw Mills will be taken up by a Committee headed by P.C.C.F., Page 63 of 71 Orissa. The decision of the Committee will be final. The decision of the Committee will be communicated to the eligible Saw Mills owners and forest field functionaries concerned. A copy of the decision will also be submitted to the Forest & Environment Department and Industries Department for necessary action at their end.
7. On receipt of the decision of the Committee headed by the P.C.C.F., Orissa, Industries Department will take steps for allotment of shed/land in different industrial estates by the authority competent to make such allotment.
8. On allotment of shed/land in the industrial estate, the Saw Mills owners will have to apply for license to the concerned D.F.O., under Saw Mills Act, enclosing a sketch of shed/land allotted, equipment to be installed etc. within 15(Fifteen) days.
9. The Cone The concerned D.F.O. shall forward the said applications with his recommendation to the P.C.C.F Orissa within 15(Fifteen) days of its receipt. The P.C.C.F, Orissa, after examining the content will allow rehabilitation of Saw Mills. Then the D.F.O concerned will issue license to the applicant for the Saw Mills.
10. The day-to-day functioning (operation) and control of Saw Mills would be done as per the existing provisions of Orissa Saw Mills & Saw Pits ( Control) Act, 1991 and rules framed thereunder in 1993."
9.27. In terms of the provisions contained under Section 4(1) of the Act, 1991 read with the guidelines for Page 64 of 71 establishment, relocation and functioning of saw mills, the above named two Saw Mills were established within Chancha industrial estate by the Industries Department vide gazette notification dated 04.08.2009. As such, it qualifies the parameters laid under the guidelines for establishment, relocation and functioning of saw mills, vide notification no.13891-10F-Legal/3/2011 dated 30.07.2011. The factors for identification are two folds, i.e., (i) having requisite sheds/area for relocation for two saw mills (i.e., the maximum no. permissible); and (ii) the estate being closer to the office of DFO/Forest Ranger/Forester.
In view of the discussions made above, issue no.(ii) is answered in affirmative.
Issue No.(iii)
10. So far as this issue is concerned, it has been vehemently contended that opposite parties no.6 and 7 have transferred the management of their Saw Mills to Page 65 of 71 opposite party no.8 and such contention has been raised as because opposite parties no.6 and 7 have relied upon the mobile number, which is stated to have been used by opposite party no.8. But, as it appears, opposite parties no.6 and 7, who are proprietors of the Saw Mills, are in charge of all the affairs and business, as is evident from the statutory forms, i.e., Form-D, E and F, which are stock register, sawing and sawn timber account filed every day and month wise extract of receipt and disposal of logs and sawn wood respectively. Furthermore, pursuant to a petition dated 17.04.2023, the Asst. Conservator of Forest (Enforcement, Baripada, Division), on causing an enquiry, found that opposite party no.8 has been authorized by the proprietors of the Saw Mills to receive any type of letters, documents and give verification on their behalf in their absence as well as represent them before the respective authorities. Thereby, opposite parties no.6 and 7, who are proprietors of the Saw Mills, have been regularly filing returns under the statutory forms and have at no point of Page 66 of 71 time violated the provisions of law and the terms of the license. The DFO, Baripada, vide letter dated 26.06.2023, also caused inquiry for effective monitoring and functioning of the Saw Mills in consonance with the statutory provisions and rules. As such, the proprietors have also taken all measures and stood in strict compliance with the said instructions. Therefore, the allegation made that opposite parties no.6 and 7, being the proprietors of the respective Saw Mills, have authorized opposite party no.8 to manage the said Saw Mills, has no legs to stand. The contention to that extent cannot be sustained in the eye of law and issue no.(iii) is answered accordingly.
Issue No.(iv)
11. The petitioners have not produced any materials before this Court to indicate that opposite parties no.6 and 7 are involved in any kind of illegal activities of timber business. On the other hand, as it Page 67 of 71 reveals from the materials available on record, on receipt of the representation dated 15.05.2023, the Asst. Conservator Forest (Enforcement) conducted a full-fledged enquiry and reported on 04.07.2023 that the allegations regarding illegal sawing of timbers is without any basis. Furthermore, on causing enquiry to the said petition, the Asst. Conservator Forest (Enforcement) conducted a surprise visit by personally inspecting the premises on 11.07.2023 and undertook verification of the stock registers and monthly returns and consequentially found that the Saw Mills were running within monthly capacity as per the license. Therefore, in absence of any materials before this Court, no conclusion can be drawn that the Saw Mills are involved in illegal timber business. The issue no.(iv) is answered accordingly.
12. Before parting with the case, this Court deems it apposite to make a mention that in the name of rehabilitation of closed saw mills, the State authorities including the forest officers, cannot and should not act Page 68 of 71 detrimental to the interest of the public at large, which affects the public policy and very well come in realm of judicial review. Therefore, the forest department has to ensure that in the name of rehabilitation of closed saw mills, the forest resources made available should not be destroyed. In the event of any destruction thereof, the authorities, who are in the helm of affairs, should be put to task, because the human habitation are now facing severe crisis for their survival in a healthy environment, which should not be jeopardized further in any manner. In the interest of justice, equity and fair-play, both the human habitation and the forest growth simultaneously should have a healthy atmosphere and environment, as because any damage caused to the forest resources would definitely jeopardize human habitation.
13. This Court hopes and trusts, the committee which has been constituted should take care of the above mentioned aspects, when we are facing acute pollution of air and water. The burning example before this Court is Page 69 of 71 New Delhi, capital of India, suffers from acute air pollution. Had there been enough growth of forest, this air pollution could have been averted. Similarly, the State of Orissa, mainly its capital, Bhubaneswar is heading towards similar problem which is faced in New Delhi, may be within a short span of time. Therefore, now time has come for all the stake holders to act strictly in consonance with the provisions of law to give better environment for survival of human habitation, and that to allow human beings to live with dignity in consonance with Article 21 of the Constitution of India. The primary objective is survival of human habitation, which should not be lost sight of, while considering the rehabilitation of the closed saw mills and also notification issued for consideration of the State Level Committee for taking decision regarding grant of license/ permission to the wood based industries subject to compliance of the prescribed guidelines and procedures issued by Ministry of Environment, Forest and Climate Change, Government of India, New Delhi. Page 70 of 71
14. This Court, before closing the case, would like to endorse its appreciation regarding the assistance rendered by the two young counsels of this Bar, namely, Mr. S.S. Bhuyan, learned counsel appearing for the petitioners and Mr. Abhishekh Dash, learned counsel appearing for opposite parties no. 6, 7 and 8.
15. In the result, the writ petition merits no consideration and the same is hereby dismissed. However, there shall be no order as to costs.
..................................
DR. B.R. SARANGI,
ACTING CHIEF JUSTICE
M.S. RAMAN, J. I agree.
.................................. M.S. RAMAN, JUDGE Signature Not Verified Orissa High Court, Cuttack Digitally Signed The 15th December, 2023, Ashok Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Reason: Authentication Location: HIGH COURT OF ORISSA Date: 15-Dec-2023 18:01:40 Page 71 of 71