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2014 DIGILAW 757 (JHR)

State of Jharkhand v. Itki Saw Mill

2014-07-18

P.P.BHATT, R.BANUMATHI

body2014
JUDGMENT R.BANUMATHI, C.J.- 1. These Letters Patent Appeals are preferred against the order dated 9.9.2003 passed in W.P.(C) No.2124 of 2003 and other analogous cases, whereby the learned Single Judge quashed the impugned order dated 7.3.2001 and 1.9.2001 issued by the Divisional Forest Officer, Ranchi by holding that the judgment of the Hon’ble Supreme Court rendered in the case of T.N. Godavarman Thirumulkpad Vs. Union of India and Ors.( AIR 1997 S.C. 1228 ) cannot be applied to the petitioners and the directions are not applicable to the Saw Mills of the respondents. 2. The Hon'ble Supreme Court while dealing with a case of T.N.Godavarman Thirumulkpad’s (supra), relating to conservation of forest throughout the Country, by an interim order dated 12.12.1996 issued general directions to all the States and Union Territories to constitute an Expert Committee who will examine the running Saw Mills and also the number of Saw Mills required in a particular State on the basis of the sustainability vis-à-vis availability of the timber from all the sources of respective State, the optimum distance from the forest where Saw Mill should be located. In paragraphs-5 to 9, the Hon'ble Supreme Court issued the following directions: “5. We further direct as under : I. General : 1. In view of the meaning of the word “forest” in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any “forest”. In accordance with Section 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind including veneer or ply- wood mills, and mining of any minerals are non- forest purposes and are, therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity is prima-facie violation of the provisions of Forest Conservation Act, 1980. It is, therefore, clear that the running of saw mills of any kind including veneer or ply- wood mills, and mining of any minerals are non- forest purposes and are, therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity is prima-facie violation of the provisions of Forest Conservation Act, 1980. Further, State Government must promptly ensure totally cessation of all such activities forthwith …...” Said paragraph-5 further lays down certain directions wherein direction no.4 incorporates “Each State Government should constitute within one month an Expert Committee to: (i) Identify areas which are “forests”, irrespective of whether they are so notified, recognized or classified under any law, and irrespective of the ownership of the land of such forest; (ii) Identify areas which were earlier forests but stand degraded, denuded or cleared, and ; (iii) Identify areas covered by plantation trees belonging to the Government and those belonging to the private persons. 6. Each State Government should within two months, file a report regarding:- (i) The number of saw mills, veneer and plywood mills actually operating within the State, with particulars of their real ownership ; (ii) The license and actual capacity of these mills for stock and sawing ; (iii) Their proximity to the nearest forest; (iv) their source of timber.” 7. Each State Government should constitute within one month, an Expert Committee to assess: (I) the sustainable capacity of the forests of the State qua saw mills and timber based industry; (ii) the number of existing saw mills which can safely be sustained in the State; (iii) the optimum distance from the forest, qua that State, at which the saw mill should be located.” 8. The Expert 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. 3. In compliance of the direction of the Hon'ble Supreme Court, the erstwhile State of Bihar constituted the Expert Committee to fix the optimum distance from the forest at which the Saw Mill should be located and also to ascertain the number of running Saw Mills with licence and also the unlicensed Saw Mills and to take legal action for closing down those unlicensed Saw Mills. Thus, on the report of the Expert Committee, the erstwhile State of Bihar sent letter no.343 dated 28.10.2000 to the Principal Chief Conservator of Forest, Bihar. The relevant portion of the letter based on the Expert Committee regarding fixation of distance reads as under : “The minimum distance of the Saw Mills, Veneer Mills and Plywood Mills and any other timber based industry in the notified forest areas of the State is fixed to be 5 kilometers but the mills established in the notified municipality, Municipal Corporations and notified area prior to 12.12.1996 are hereby exempted from this distance. The mills situated near the mines, industrial area and Railway Stations are exempted from this distance. No exemption of any type will be given to the Mills that do not come under the aforesaid notified areas. The Mills functioning legally be given chance to shift their Mills without loss of time to any other place and the remaining Mills be got closed. It will not be applicable on the establishments that are eligible for exemption under section 25 of Timber Cutting (Regulation) Act, 1990.” 4. After bifurcation of the State and creation of new State of Jharkhand on 15.11.2000, the Principal Chief Conservator of Forest, State of Jharkhand, based upon letter no. 343 dated 28.10.2000, issued letter no.1802 dated 16.5.2001(Annexure-4), to all the Chief Conservator of Forests and Regional Chief Conservator of Forests, Jharkhand, Ranchi, to the effect that initially two years time schedule be fixed for shifting all those licensed Saw Mills which are situated within a radius of five kilometers of the notified forest areas to other places and only thereafter steps be taken for closing down those Saw Mills. 5. In the light of the directions contained in letter no.343 dated 28.10.2000 and the letter no.1802 dated 16.5.2001 issued by the Principal Chief Conservator of Forest, Ranchi, notices dated 7.3.2001 were issued to the respondents-Saw Mills stating that the Saw Mills are situated within five kilometer radius from the notified forest area and calling upon them to shift the Saw Mills by 15.5.2003 to other place which falls under the notified area or the Municipality or the Corporation and if the Mill is not shifted latest by 15.5.2003 then the said Mill will be required to be closed down. 6. 6. In the case of respondent- L.B.R. Industries (L.P.A. No. 615 of 2004), the respondent was carrying on business of Saw Mill which was established in the year 1985 and the Saw Mill is situated over Plot No. 1434A at Arrah Gate, village Mahilong, Ranchi and the licence granted under Bihar Saw Mill Regulation Act was renewed from time to time. The respondent-M/s L.B.R. Industries had applied before the competent authority for renewal of its License no.53 of 2003 for the calendar year 2003 but the Divisional Forest Officer, Ranchi renewed the license only for a period of five months from 1.1.2003 to 15.5.2003. Subsequently, a letter no.2760 dated 1.9.2001 was also issued to LBR Industries to close down the Saw Mill. 7. In the case of respondent- Chhotanagpur Timber Works (L.P.A. No. 624 of 2004) , the respondent Saw Mill was established in the year 1984, which is situated upon plot no.227, BIT More, Neori, District- Ranchi. According to the respondent, the Chhotanagpur Timber Works was in existence since 1984, and the licence was renewed from time to time but the last renewal was done in the year 2000 vide licence no.50 of 2000 and the application for licence for the years 2001, 2002 and 2003 was kept pending. The impugned letters dated 7.3.2001 and 1.9.2001 were issued by the authority to close down the Timber works, on the ground that they are situated within five kilometers of Notified Forest Area and they are to shift their Saw Mills before 15.5.2003 or otherwise they will be required to be closed down. 8. M/s Itki Saw Mill (respondent in LPA No. 625 of 2004) was established in the year 1990 upon plot no.2063 is situated at Itki, PS-Itki, District- Ranchi. The said respondent was also granted license under the Bihar Saw Mill (Regulation) Act, 1990 and the license was renewed from time to time and the last renewal vide licence no.56 of 2003 having been done for a period of less than one year i.e. 1.1.2003 to 15.5.2003. 9. The Divisional Forest Officer, Ranchi issued notices to the respondents-Saw Mills on 7.3.2001 and 1.9.2001 stating that the respondents-Saw Mills are situated within the prohibitory distance of five kilometer from the Notified Forest Area and, therefore the Saw Mills are to be shifted by 15.5.2003 to other places, which falls under the notified area or municipality or Corporation. 10. 9. The Divisional Forest Officer, Ranchi issued notices to the respondents-Saw Mills on 7.3.2001 and 1.9.2001 stating that the respondents-Saw Mills are situated within the prohibitory distance of five kilometer from the Notified Forest Area and, therefore the Saw Mills are to be shifted by 15.5.2003 to other places, which falls under the notified area or municipality or Corporation. 10. The respondents-Saw Mills filed the writ petitions, inter alia: (I) For quashing the letter no.343 dated 28.10.2000 issued by the erstwhile State of Bihar, inter alia, directing that) Saw Mills, Veneer Mills, Plywood Mills and other timber based industry should not be allowed to function within 5 kilometer from the Notified Area and the licensee Saw Mills should be directed to move 5 kilometer away from the Notified Forest Area; (II) For quashing letter no. 745 dated 7.3.2001 issued by the Divisional Forest Officer, Ranchi mentioning that the respondents-Saw Mill is to be closed because it is situated within 5 kilometer of the Notified Forest Area; (III) For quashing letter no.1802 dated 16.5.2001 issued by the Principal Chief Conservator of Forest, Ranchi to his subordinate authorities mentioning therein that all such Saw Mills situated within 5 kilometers from the Notified Area to close down their Units and directed all such Saw Mills to move five kilometers away from the Notified Forest Area within two years; (IV) For quashing letter no.2707 dated 1.9.2001 issued by the Divisional Forest Officer, Ranchi, calling upon the respondents-Saw Mills to shift to a place which is neither Notified Area or the Municipal area or falling under the Municipal Corporation by 15.5.2003; and (V) For a direction upon the Divisional Forest Officer, Ranchi to extend the validity of the respondents-Saw Mills which have been renewed by him only for the period of five months from 1.1.2003 to 15.5.2003 which, according to the respondents, is contrary to the mandate of Rule 6(4)of the Bihar Saw Mills (Regulation) Rules, 1993. 11. While allowing the writ application, the learned Single Judge in paragraphs-16 and 17 in extenso extracted the judgment rendered in the cases of Rajeev Ranjan Sinha Vs. State of Bihar & Ors. ( 1999) 3 PLJR-955 and M/s Anand Timber Vs. State of Jharkhand & Ors. (2002)3 JLJR 340 and agreed with the views taken in those judgments. 11. While allowing the writ application, the learned Single Judge in paragraphs-16 and 17 in extenso extracted the judgment rendered in the cases of Rajeev Ranjan Sinha Vs. State of Bihar & Ors. ( 1999) 3 PLJR-955 and M/s Anand Timber Vs. State of Jharkhand & Ors. (2002)3 JLJR 340 and agreed with the views taken in those judgments. Referring to those judgments, the Writ Court held that the direction to close down all unlicensed Saw Mills related to the State of Maharashtra and State of Utter Pradesh and there was no such direction is given, so far State of Bihar is concerned. In view of the clear directions of the Hon'ble Supreme Court in paragraph-5(I) of T.N.Godavarman Thirumulkpad's case(supra), the views taken in Rajeev Ranjan Sinha and M/s Anand Timbers' case and also the Writ Court do not reflect the direction of the Hon'ble Supreme Court issued in general in respect of each of the States. As is clear from the various subsequent orders passed by the Hon'ble Supreme Court, the Supreme Court was monitoring the matter regarding the steps taken by various States in prescribing the optimum distance from the forest and also the number of existing Saw Mills which can be safely sustained in each States. 12. In view of the clear direction in paragraph-5 (I) in T.N.Godavarman Thirumulkpad's case(supra) wherein the Hon'ble Supreme Court passed general order applicable to all the States, the order of the learned Single Judge to the extent that the directions were issued only for the State of Utter Pradesh and Maharashtra cannot be accepted. 13. In so far as challenge to letter no.343 dated 28.10.2000, by perusal of the same, it is clear that the same was issued by the erstwhile State of Bihar, pursuant to the direction of the Hon'ble Supreme Court and the Expert Committee Report relating to (i) regularization of the operating licensed Saw Mills, Veneer Mills, Ply Wood Mills and other timber based industry; (ii) to take legal action for closing down the unlicensed Saw Mills immediately; (iii) fixing the minimum distance of the Saw Mills as five kilometers from the Notified Forest Area and as such the respondents cannot have any valid grievance. 14. 14. Based on the letter no.343 dated 28.10.2000, the Principal Chief Conservator of Forest, Jharkhand, Ranchi issued letter no.1802 dated 16.5.2001 stating that all the Saw Mills situated within five kilometers from the Notified Forest Area to close down their Units and further direction was issued to all the subordinate authorities to direct all such Saw Mills to move five kilometers away from the Notified Forest Area, within two years. Since letter no.1802 dated 16.5.2001 of the Principal Chief Conservator of Forest is based on the letter no.343 dated 28.10.2000, which are in compliance of the direction of the Hon’ble Supreme Court, the respondents cannot challenge the letter no.1802 dated 16.5.2001. 15. In paragraph-21 of the judgment, the Writ Court held that after creation of State of Jharkhand, fresh Expert Committee was constituted by Notification dated 27.7.2001 and the said Committee submitted its report on the points mentioned in the order dated 12.12.1996 passed by the Hon'ble Supreme Court in T.N.Godavarman Thirumulkpad's case, but however no decision has been taken by the State of Jharkhand on the said report. The Writ Court was not right in saying that no decision has been taken by the State of Jharkhand on the basis of the report of the Expert Committee. 16. After bifurcation of the State and after coming into existence of the State of Jharkhand on 15.11.2000, the Expert Committee was constituted by the State of Jharkhand vide Notification no.252(33) dated 27.7.2001 and the Committee was asked to submit the report in compliance of the direction of Hon’ble Supreme in the case of T.N. Godavarman Thirumulkpad (supra). After perusal of the record and the reports received from the field level and also the letter no.343 dated 28.10.2000 of the Government of Bihar, the Expert Committee constituted by the State of Jharkhand recommended for adoption of the recommendation made in the aforesaid letter regarding running of Saw Mills the optimum distance of five kilometers from the notified forest area. In so far as the number of Saw Mills in the aforesaid letter dated 28.10.2000 of Government of Bihar, the Expert Committee recommended for regularization of 496 Saw Mills which were earlier allotted for the 18 districts of South Bihar (newly created Jharkhand). In so far as the number of Saw Mills in the aforesaid letter dated 28.10.2000 of Government of Bihar, the Expert Committee recommended for regularization of 496 Saw Mills which were earlier allotted for the 18 districts of South Bihar (newly created Jharkhand). After meticulous examination of the report of the Expert Committee, the Government of Jharkhand issued letter no.3730 dated 22.7.2003, fixing the number of Saw Mills for whole of the Jharkhand State as 496 on the basis of sustainability of timber product , other practical aspects and in the public interest. 17. The Writ Court further held that the respondents- Saw Mills were established prior to 1996 and the judgment of Hon'ble Supreme Court in T.N.Godavarman Thirumulkpad's case would not apply to the respondents-Saw Mills. In T.N.Godavarman Thirumulkpad (supra), the Hon'ble Supreme Court issued directions to fix the optimum distance of forest qua that State at which the Saw Mills should be located. Accordingly the Expert Committee fixed the distance as 5 kilometers from the Notified Forest Area for all the Saw Mills. As per the report of the Expert Committee only those Mills which were established in the notified Municipality, Municipal Corporations and notified areas prior to 12.12.1996 are exempted from this distance. It is not the case of the respondents that their Mills were situated within the limits of Municipal Corporation or Notified Area. Therefore, the respondents are not right in contending that merely because the respondents-Saw Mills were established prior to 1996, the parameter of minimum distance from the notified forest area do not apply. 18. To appreciate the contention, we may refer to the gist of the notice issued to Itki Saw Mills dated 1.9.2001 and directions thereof : “ M/s Itki Saw Mill, Itki, Ranchi is required to be closed down within two years because this Saw Mill falls within 5 k.m. from the Notified Forest Area. In this regard, the following directions are given: 1. You may shift your Saw Mill latest by 15.05.2003 to other place, which falls under the Notified area or Municipality or the Corporation. 2. In this regard, the following directions are given: 1. You may shift your Saw Mill latest by 15.05.2003 to other place, which falls under the Notified area or Municipality or the Corporation. 2. If the said Mill is not shifted latest by 15.05.2003 then the said Mill will be required to be closed down and after 16.05.2003 no orders of transportation of the remains of the timber will be issued and if the Saw Mill is found working necessary action will be taken under the provisions of law. 3. Under the provisions of Section 2-4(g) of Bihar Timber Cutting (Regulation) Rules, 1993 the full details of the new site along with the prescribed application is to be submitted in this office and only after seeking the permission the Saw Mill can be shifted.” Similar notices were also issued to other respondents- L.B.R. Industries and M/s Chhotanagpur Timber Works. Challenging the said notices, the writ petitions were filed by the respondents. 19.The impugned letters dated 7.3.2001 and 1.9.2001 were issued to the respondents- Saw Mills, in view of the judgment of Hon’ble Supreme Court in T.N.Godavarman Thirumulkpad's case(supra) and in view of the direction of letter no.343 dated 28.10.2000 of Government of Bihar and the letter dated 16.5.2001 of the Principal Chief Conservator of Forest, State of Jharkhand, the respondents’ industries are to be closed with immediate effect because the said Saw Mills are within five kilometers of the notified forest area and calling upon the respondents that the same should be shifted to a place either in the Municipal Corporation or Notified Area Committee by 15.5.2003 and after so shifting, to submit an application in the prescribed form under the Bihar Saw Mills Regulation Act, 1993. 20. There is no merit in the contention of the respondents that by the impugned notice the respondents-Saw Mills were directed to be closed. From the tenor of the impugned notice, it is clear that it directs the respondents-Saw Mills to shift the Saw Mills latest by 15.5.2003 to other place which falls under the Notified Area or Municipality or the Corporation. The impugned notice further stipulates that if the Saw Mill is not shifted latest by 15.5.2003 then the said Mill will be required to be closed down. The impugned notice further stipulates that if the Saw Mill is not shifted latest by 15.5.2003 then the said Mill will be required to be closed down. The notices issued to the respondents-Saw Mills were only a prior notice, calling upon them to shift the Saw Mills within the specified time and the writ Court was not right in quashing the notices issued to the respondent-Saw Mills. 21. At the time of argument, it was submitted that M/s Itki Saw Mill is still located within the prohibited distance of five kilometers from the Notified Forest Area. In so far L.B.R. Industries, the learned counsel appearing for the Respondent-Saw Mill submitted that vide Notification no.3239 dated 31.12.2005 village Mahilong where L.B.R. Industry is situated has been included under Ranchi Municipal Corporation. Likewise, it was submitted that M/s Chhotanagpur Timber Works also falls within Ranchi Municipal Corporation. 22. The respondents are relying upon the Notification dated 31.12.2005 to contend that L.B.R. Industries is now situated within the limits of Ranchi Municipal Corporation. As per letter no.343 dated 28.10.2000, which was accepted by the State of Jharkhand, Saw Mills are not to be situated within five kilometers of the notified forest area and that the same should be shifted to a place either within the Municipal Corporation or Notified Area Committee. It was also stated that license of the respondents' Saw Mills ( except Itki Saw Mill) are periodically renewed. 23. Whether the respondents’ Saw Mills are situated within the limits of Municipal Corporation or Notified Area Committee and whether they are still required to be shifted, it is for the authorities to examine the same in the light of the directions issued in letter no.343 dated 28.10.2000 and letter no.1802 dated 16.5.2001 and also the subsequent decisions of the Central Empowered Committee. 24. The learned counsel for the appellants submitted that the Central Empowered Committee on 6.6.2006 has directed the State Government to file assessment of timber availability in the State of Jharkhand and after discussion the following decision was taken : “(i) …. (ii) ….. (iii) the permission of the relocation and/or change in the ownership of the wood-based industries may be given by the authorized authority in the Forest Department. For this purpose, detailed guidelines with adequate checks and balances will be issued by the Principal Chief Conservator of Forests, Jharkhand Forest Department. (ii) ….. (iii) the permission of the relocation and/or change in the ownership of the wood-based industries may be given by the authorized authority in the Forest Department. For this purpose, detailed guidelines with adequate checks and balances will be issued by the Principal Chief Conservator of Forests, Jharkhand Forest Department. This is however subject to the condition that no splitting of license or relocation of a wood based industry in a prohibited area will be permissible; (iv) the State may take a decision about the relocation of wood-based units from one place to another to ensure that the spatial distribution of wood based industry is properly maintained. However, wherever the license of an existing unit is cancelled and in lieu thereof a new license to another unit is to be given, prior approval of the CEC will be necessary; and (v) units based on imported timber also require a saw mill license for which approval of CEC will be necessary”. 25. Again the Central Empowered Committee had taken the following decision on 7.8.2009 : “2. During the meeting, it was stated by the PCCF, Jharkhand that presently the availability of timber from all sources in Jharkhand is about one lakh cubic meters. There are about 448 licensed saw mills in the State with an installed capacity of about 2.2 lakh cubic meters. In view of the above, presently, the State is not in favour of grant of license to any new wood based industry. 3. In view of the above, it was decided that at present no new license to any wood based industry in the State of Jharkhand will be considered. As and when the timber availability is assessed to be more than the installed capacity of licensed wood based industries in the State, the grant of new license will be considered by the CEC.” 26. As per the decision of the Central Empowered Committee, the permission of relocation has to be taken by the authorized authority in the forest department and adequate checks and balance will be issued by the Principal Chief Conservator of Forests. 27. As per the decision of the Central Empowered Committee, the permission of relocation has to be taken by the authorized authority in the forest department and adequate checks and balance will be issued by the Principal Chief Conservator of Forests. 27. Having regard to the submissions of the learned counsel for the respondents, it is for the concerned authority to consider the case of the respondents as per the directions contained in the letter no.343 dated 28.10.2000 and letter no.1802 dated 16.5.2001 issued by the Principal Chief Conservator of Forests, Ranchi, and also in the light of the decision of the Central Empowered Committee. 28. In view of the aforesaid discussions and reasoning, the authorities have rightly directed the respondents-Saw Mills to move from five kilometers of the Notified Forest Area within the period of two years. The Writ Court was not right in quashing the various letters and notices which were under challenge and the order of the Writ Court is liable to be set aside. 29. In the result, the order of the learned Single Judge in W.P.(C) Nos.2124 of 2003, 2122 of 2003 and 2126 of 2003 are set aside and these Letters Patent Appeals are allowed. The respondents are directed to submit their applications in the prescribed forms under the Bihar/Jharkhand Saw Mills Regulation Act. On filing of such applications in the prescribed form, the concerned authority shall consider the case of the respondents, as per the directions contained in letter no.343 dated 28.10.2000 and letter no.1802 dated 16.5.2001 issued by the Principal Chief Conservator of Forests, Ranchi, and also in the light of the decision of the Central Empowered Committee and the subsequent directions, if any, and pass orders in accordance with law.