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2000 DIGILAW 1176 (PAT)

Basudeo Yadav v. State Of Bihar

2000-09-29

R.M.PRASAD

body2000
Judgment 1. As in all these writ petitions the question involved is common, they have been heard for final disposal by a common order. 2. In all these writ petitions the petitioners are aggrieved either by rejection of their applications for renewal of licence; cancellation of licence to run saw mills granted under the provisions of the Bihar Saw Mills (Regulation) Act, 1990 (hereinafter referred to as the Act); or denial of consideration of their cases for renewal/grant of licences for running saw mills, though they claimed to have submitted applications and in some cases also deposited the requisite fees. 3. The case of the petitioners is that they have established saw mills which are their source of livelihood outside the forest area, yet the licensing authorities have arbitrarily denied grant of licence under the Act to run the saw mills either by refusal of renewal; cancellation of licence or by their non-disposal of the applications for renewal/grant of licence. It is to be noted here that earlier there was no requirement of taking licence for running saw mills. However, in the year 1990, for the first time, the saw mill owners were required to have licence to run the saw mills from Forest Offices under the provisions of the Act and the petitioners accordingly applied for renewal/grant of licence. 4. In C.W.J.C. Nos. 9295 and 9461 of 2000, the petitioners are aggrieved by the suspension of the licence of saw mill granted to them, vide orders dated 29-12-1999 and 28-12-1999 respectively, pending enquiry on the grounds that the relevant documents with respect to licence of saw mill was not verified by the Forest Conservator, Forest Extension Division, Muzaffarpur and that the original licence was not certified by the officer concerned. 5. In all these writ petitions the common question involved is as to whether the general directions dated 12-12-1996 and 4-3-1997 issued by the Apex Court in the case of T.N. Godavarman Thirumulkpad V/s. Union of India, reported in AIR 1997 SC 1228 and AIR 1997 SC 1233 respectively in a case relating to Forest (Conservation) Act (69 of 1980) would come in the way of their right to do business of running saw mills outside a forest or non-forest area. It is to be noted here that the orders impugned in the writ petitions or non-consideration of the case of the petitioners for grant of renewal/fresh licence for running saw mills are based on the instruction issued by the Principal Chief Conservator of Forests pursuant to the aforementioned decisions of the Apex Court. 6. A common counter-affidavit has been filed on behalf of the State of Bihar (respondent No. 1) in C.W.J.C. No. 9058 of 2000 in which it is stated that in compliance of the order of the Apex Court in the case of T. N. Godavarman Thirumulkpad V/s. Union of India, ( AIR 1997 SC 1228 ) (supra) giving general direction in sub-paragraphs 7, 8 and 9 of paragraph 5, certain steps have been taken by the Forest and Environment Department. Sub-paragraphs 7, 8 and 9 of the said judgment of the Apex Court read as follows :- "7. Each State Government should constitute within one month, an Expert Committee to assess :(i) the sustainable capacity of the forest 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 Committee so constituted should be requested to give its report within one month of being constituted. 9. Each State Government would constitute a Committee comprising of the Principal Chief Conservator of Forests and another Senior Officer to oversee the compliance of this order and file status reports."It is stated that in view of the above direction of the Apex Court, an Expert Committee was constituted which has submitted its report to the State Government in the Department of Forest and Environment. The report of the Expert Committee, in brief, as mentioned in paragraph 5 of the counter-affidavit, is as follows :" I. Based on the estimate that aggregate annual supply of timber from all sources in the State is about five lakh cubic meters, the number of saw mills out of existing 3991 such mills that can be sustained in the State has been assessed at 1110.II. The recommendations have been made that the saw mills in excess of the above- mentioned number i.e. 1110, should be closed in a phased manner over a period of three years.III. The recommendations have been made that the saw mills in excess of the above- mentioned number i.e. 1110, should be closed in a phased manner over a period of three years.III. Location of saw mills from the forests should be located at a minimum distance of five kilometers from the forests but this restriction should not be applicable in case of saw mills operating in Urban locality under a Municipal body."A photo copy of the report of the Expert Committee has also been annexed as Annexure-A to the counter-affidavit. It is stated that the Principal Chief Conservator of Forests, Bihar has given his concurrence and further recommended that the number of plywood mills and veneer mills which could be safely operated in the State should be 90 and 100 respectively as against the existing number of 109 and 265 respectively. It is further stated that the said report has been examined by the Department of Forest and Environment and a proposal is being moved for approval of the State Government by which no saw mills, plywood mills and veneer mills will be issued licence in the State. According to the respondents, the total number of saw mills allowed to be operated in the State of Bihar is to be fixed at 1950 and, therefore, the excess number of saw mills shall be closed in a phased manner over a period of three years. After the proposal is approved by the State Government, the instructions will be issued in this regard by the State Government in the Department of Forest and Environment. It is also stated that as per the direction of the Apex Court in paragraph 4, there shall be a complete ban on the movement of cut trees and timber except that it will not apply to the movement of certified timber required for defence or other Government purposes and felling in any private plantation comprising of trees planted in any area which is not a forest. It is thus stated that no new licence can be granted to saw mills in view of the fact that the number of saw mills sustainable in the State of Bihar is much-less than what is already existing. 7. It is thus stated that no new licence can be granted to saw mills in view of the fact that the number of saw mills sustainable in the State of Bihar is much-less than what is already existing. 7. A rejoinder has also been filed in C.W.J.C. No. 9058 of 2000 on behalf of the petitioner to the said counter-affidavit in which it is stated that until and unless the report of the Expert Committee is accepted by the State Government, no action can be taken on the basis of the said report. The petitioner has also annexed the copy of the letter issued by the Principal Chief Conservator of Forests, Bihar, Ranchi on 2nd February, 2000 to all the concerned authorities as Annexure-6 which shows that there has been no Government decision till date and under such circumstances, he has issued instruction that for the renewal of licence and grant of licence, the old procedure will be followed. 8. It is, thus, contended on behalf of the petitioners that denial of renewal and/or grant of fresh licence to the petitioners under the Act is wholly arbitrary and violative of their fundamental rights under Articles 14 and 19 (1)(g) of the Constitution of India, besides being mala fide in the garb of general direction of the Apex Court which, in fact, does not at all apply to the present case. In this regard learned counsel also cited a decision of this Court in the case of Rajeeva Ranjan Sinha V/s. State of Bihar, reported in (1999) 3 Pat LJR 955, wherein the learned single Judge has explained and distinguished the said general directions of the Apex Court and has held that the direction of the Apex Court does not relate to running of saw mills in a town or an area which is admittedly a non-forest area and that the direction to close down all unlicensed saw mills related to the State of Maharashtra and the State of U. P. and there was no such direction so far as this State is concerned. 9. Mr. 9. Mr. Dutta, learned Standing Counsel No. IV appearing for the State, on the other hand, submitted that the decision of the learned single Judge in the case of Rajeeva Ranjan Sinha V/s. State of Bihar, (1999 (3) Pat LJR 955) (supra) is quite distinguishable as the report of the Expert Committee was not available on the record of the said case and the learned single Judge had no occasion to consider the said report submitted on 31-7-1997. In fact, the State authorities have found themselves unable to direct for further action in regard to the renewal or fresh grant of licence as the report of the Expert Committee has recommended that the number of plywood mills and veneer mills which could safely be operated in the State should be 90 and 100 respectively as against the existing number of 109 and 265 respectively and that no new licence can be granted to saw mills in view of the fact that the number of saw mills sustainable in the State of Bihar has been found in the report to be much-less than what is already existing. He submitted that it is true that no Government decision has been taken till date but the State authorities considering the anxiety expressed by the Apex Court in the case of T.N. Godavarman Thirumulkpad V/s. Union of India, ( AIR 1997 SC 1228 ) (supra) with regard to enforcement of Forest (Conservation) Act (69 of 1980) which was enacted with a view to check further deforestation which ultimately results in ecological imbalance and direction issued to each State Government to constitute Expert Committee to assess the sustainable capacity of the forests of the State qua saw mills and timber based industry; the number of existing saw mills which can safely be sustained; the optimum distance from the forest, qua the State at which the saw mill should be located whereupon the report of the Expert Committee has been submitted on 31-7-1997 and are pending decision before the State Government, have rightly decided not to grant any renewal or fresh licence for running of saw mills. Thus, according to the learned counsel for the State, there is no merit in the writ petitions warranting any interference with the action of the State authorities in not considering the cases for grant of renewal and/or fresh licence. 10. Thus, according to the learned counsel for the State, there is no merit in the writ petitions warranting any interference with the action of the State authorities in not considering the cases for grant of renewal and/or fresh licence. 10. Learned counsel for the petitioner in the case of Shreelal Bhagat (C.W.J.C. No. 9058 of 2000), in reply, submitted that Sec. 5 of the State Act provides for deemed approval of licence in case the application filed for grant of licence is not disposed of within the stipulated time and as such, according to him, his case is covered by the provisions regarding deemed approval and in compliance of it the licensing authority is only required to formally issue the licence. In reply, learned Standing Counsel appearing for the State has submitted that Sec. 5 does not apply to the facts of the present cases. It only applied to such saw mills which were operative since before the enactment and were required to take licence after the enactment of the State Act. In the case of Laxman Prasad and Nagina Singh (C.W.J.C. Nos. 9295 and 9461 of 2000 respectively) it is submitted on behalf of the petitioners that the suspension of licence is not at all related to the renewal/grant of licence and as such the arguments advanced on behalf of the State in their case at least are not at all tenable. 11. Thus Court does not find substance in any of the submissions advanced on behalf of the petitioners. It is true that in the case of Rajeeva Ranjan Sinha V/s. State of Bihar (1999 (3) Pat LJR 955) (supra), the learned single Judge has held that the direction given by the Apex Court does not relate to running of saw mills in a town or an area which is admittedly a non-forest area and that the direction to close down all unlicensed saw mills related to the State of Maharashtra and the State of U. P. and there was no such direction so far as this State is concerned, but this Court finds force in the submission of the learned counsel for the State. It has rightly been submitted by the learned counsel for the State that the anxiety and approach of the Apex Court in the case of T. N. Godavarman Thirumulkpad V/s. Union of India, ( AIR 1997 SC 1228 ) (supra) is for enforcement of Forest (Conservation) Act, 1980 with a view to check further deforestation which ultimately results in ecological imbalance and, therefore, the provisions made therein for conservation of forests and for matters connected therewith must apply to all forests irrespective of the nature of ownership or classification thereof. The Apex Court while considering the scope of the words forest and forest land issued direction to all the State Governments which failed to appreciate the correct position in law and directed to forthwith correct its stance and take the necessary remedial measure without any further delay. The Apex Court thus issued further general directions which are mentioned in paragraph 5 of its first order in the first case. One of the directions was to constitute an Expert Committee to 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 forest; identify area which were earlier forest but stand degraded, denuded or cleared; and identify areas covered by plantation trees belonging to the Government and those belonging to private persons. It was also directed that the State Government should file report regarding the number of saw mills, veneer and plywood mills actually operating within the State, with particulars of their real ownership; the licensed and actual capacity of these mills for stock and sawing; their proximity to the nearest forest and their source of timber. In sub-paragraph 7 the Apex Court also directed to constitute Expert Committee to assess the sustainable capacity of the forests of the State qua saw mills which can safely be sustained in the State and the optimum distance from the forest qua the State, at which the saw mill should be located. The said directions were given obviously for the purpose of taking final decision as to what number of saw mills and the timber based industry should be allowed to continue their operation in the State and as to what order should be issued with respect to further grant of licence to saw mills and timber based industry. 12. The said directions were given obviously for the purpose of taking final decision as to what number of saw mills and the timber based industry should be allowed to continue their operation in the State and as to what order should be issued with respect to further grant of licence to saw mills and timber based industry. 12. Thus, even after the report of the Expert Committee if the State authorities are allowed to continue to grant renewal/fresh licences with respect to saw mill and timber based industry, the very object for constituting the Expert Committee and submission of report by it will stand frustrated where the report of the Expert Committee is that the number of existing saw mills and other timber based industry already exceeds the optima, which ultimately is found to be sustainable according to the capacity of the forest of the State qua saw mill and timber based industry and as to what should be the optima on which basis the sustainable capacity of the forest of the State qua saw mill and timber based industry can be assessed and also in relation to the optimum distance from the forest qua the State at which the saw mill should be located can be determined. Thus, in the facts and circumstances aforementioned, during the interregnum period if the authority decides to proceed with the grant of renewal or fresh licence, the very object as contemplated in the direction of the Apex Court shall stand frustrated. Learned counsel for the State has rightly pointed out that in the case of Rajeeva Ranjan Sinha V/s. State of Bihar (1999 (3) Pat LJR 955) (supra) the report of the Expert Committee was not available and as such, the decision rendered by the learned single Judge therein is quite distinguishable. 13. This Court does not find force in the submission of the learned counsel for the petitioner in the case of Shreelal Bhagat that under Sec. 5 of the State Act, the application filed by the petitioner having not been disposed of within the stipulated time, his case shall be covered by the provision regarding deemed approval and in compliance thereof the licensing authority is only required to formally issue the licence. In my opinion, the said provision has no application to the facts of the present case. In my opinion, the said provision has no application to the facts of the present case. Learned counsel for the State has rightly submitted that Sec. 5 only applies to such saw mills which were operative since before the enactment and were required to take licence after the enactment of the State Act. Sec. 5 provides that on and from the appointed day, no person shall establish a saw mill or a saw pit except under the authority and subject to the conditions of a licence granted in that behalf under this part and under sub-clause (b) no person shall operate a saw mill or a saw pit in existence on the said date, unless he is granted a licence in that behalf under this Ordinance on an application made by such person within a period of thirty days from such date. Proviso to sub-clause (b) provides that for the period of thirty days and thereafter the period during which the application is pending for consideration, it shall be deemed as if such person was granted a licence and he was operating the saw mill or saw pit accordingly. Proviso to clause (b) only applies where application is made within a period of thirty days on and from the appointed day and not to cases where the applications are made for grant/renewal of licence under clause (a) of Sec. 5. 14. This Court does not find substance in the submission of the learned counsel appearing for the petitioners in C.W.J.C. Nos. 9295 and 9461 of 2000 that the impugned suspension of licence is not at all related to renewal/grant of licence. The licence of the petitioners has been suspended pending enquiry on the ground that the relevant documents with respect to licence of saw mill was not verified by the Forest Conservator and that the original licence was not certified by the Officer concerned which prima facie show that the licence was not granted after following the necessary procedure for which an enquiry has been initiated. Moreover, from the facts stated in both the writ petitions (C.W.J.C. Nos. 9295 and 9461 of 2000) it is evident that renewal of their licence was not granted and, as such, their cases shall also stand on identical footing where despite filing of application for renewal, the same has not been granted and thus the principle decided above, shall also apply to their cases. 9295 and 9461 of 2000) it is evident that renewal of their licence was not granted and, as such, their cases shall also stand on identical footing where despite filing of application for renewal, the same has not been granted and thus the principle decided above, shall also apply to their cases. 15. Under the aforementioned facts and circumstances, in my opinion, these writ petitions are not fit cases for exercise of discretionary jurisdiction of this Court under Article 226 of the Constitution of India and all the writ petitions are, thus, dismissed, but without costs. However, this order shall not be understood by the authorities to disturb the number of saw mills which were in existence and had licence on the date of submission of the report by the Expert Committee until the State Government accepts it and the Apex Court passes any further order.Petitions dismissed.