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2023 DIGILAW 1508 (AP)

Gayathri Saw Mill & Timber Merchant v. Govt. of Andhra Pradesh Rep. by its Principal Secretary, Forest Department

2023-12-06

VENKATESWARLU NIMMAGADDA

body2023
ORDER : The present Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief: “... to issue a writ or order, orders or direction more particularly one in the nature of Writ of Certiorari, calling for the records relating to issuance of the impugned proceedings Rc.No.1450/2013/M5 dated 03.08.2013 form the file of the 3rd Respondent and after perusing the same, quash and said proceedings dated 03.08.2013 and as well as the cancellation order Rc.No.109/2004/NP3 dated 15.05.2013 of the 4th Respondent and consequently direct the Respondent Nos.4 & 5 not to interfere with my running the Saw Mill and with all other consequential benefits …” 2. The case of the petitioner is as follows: 3. Petitioner’s saw mill was established in April, 1998 and the licence was granted on 27.11.1998 for a period of one year. The said licence was renewed thereafter vide licence No.19 of 2010, dated 30.03.2010 for a period of three years and ‘the petitioner’s saw mill had been continued accordingly. While so, Respondent No.1 issued G.O.Ms.No.99, EFS&T (For-III) Department, dated 17.07.1998 which was came into effect on 03.08.1998. As per the said G.O., no person shall install, erect or operate a Saw Mill for cutting, converting or sawing of timber without obtaining a licence for such installation from the Licensing Authority. It is further contemplates that no licence for setting up fresh saw mills within a distance of 5.00 kms from the boundary of any forest under the control of the Forest Department whether notified or not shall be granted, except when it is required for Departmental use. Pursuant to the issuance of the said G.O., the Respondents issued show cause notice dated 27.04.2013 indicating that the petitioner’s saw mill was fell within the radius distance of 5.00 kms from the notified Reserved Forest Boundary, for which the petitioner submitted an explanation on 09.05.2013 stating that 5.00 kms stipulation under the provisions of G.O.Ms.No.99 dated 17.07.1998 is not applicable to the existing saw mills, since the petitioner saw mill is an existing one and requested to drop any proposed action under show cause notice. 4. Learned counsel for the petitioner submits that the petitioner’s saw mill was established in April, 1998 and licence was granted on 27.11.1998. But, without application of mind and contrary to its own exceptions the Respondents issued licence cancellation order, vide Rc.No.109/2004/NP3, dated 15.05.2013. 4. Learned counsel for the petitioner submits that the petitioner’s saw mill was established in April, 1998 and licence was granted on 27.11.1998. But, without application of mind and contrary to its own exceptions the Respondents issued licence cancellation order, vide Rc.No.109/2004/NP3, dated 15.05.2013. Having aggrieved by the same, he preferred an appeal before Respondent No.3 on 27.05.2013 and also filed stay application on 01.06.2013. To the surprise of the petitioner, the appellate authority i.e. Respondent No.3 rejected the appeal of the petitioner, vide its Rc.No.1450/2013/M5, dated 11.06.2013, without giving any notice and any opportunity of hearing to the petitioner and mechanically confirmed the cancellation order of the original authority. He further submits that challenging the order in appeal dated 11.06.2013, the petitioner preferred a W.P.No.17687 of 2013, wherein this Court was pleased to pass an order directing the appellate authority as under: “The writ petition is accordingly allowed setting aside the impugned proceedings. The matter is remitted to the appellate authority for consideration of the appeal afresh shall afford an opportunity of hearing to the parties and pass appropriate orders in accordance with law, be it in the appeal or on the stay application filed therein, expeditiously and in any event, within two weeks from the date of receipt of a copy of this order. W.P.M.P.No.21511 of 2013 shall stand closed in the light of this final order. No order as to costs.” 5. Learned counsel for the petitioner further submits that pursuant to the orders of this Court, on 01.08.2013, the petitioner again submitted a detailed appeal to Respondent No.3. He further submits that without complying the orders of this Court as directed and without application of mind, the appellate authority dismissed the appeal along with stay application vide Rc.No.1450/2013/M5, dated 03.08.2013. The order in appeal as well as order of cancellation of licence was assailed in this present writ petition. 6. Learned counsel for the petitioner further submits that the terms and conditions of G.O.Ms.No.99, dated 17.07.1998 would applicable prospectively w.e.f. 03.08.1998, when the same was came into effect. But, not retrospectively. It is settled principles of law that the terms and clauses of any G.O. cannot be made implemented retrospectively. Admittedly the petitioner’s saw mill was established in April, 1998 and it has been running thereafter, as such the same cannot be made applicable to the petitioner retrospectively. 7. But, not retrospectively. It is settled principles of law that the terms and clauses of any G.O. cannot be made implemented retrospectively. Admittedly the petitioner’s saw mill was established in April, 1998 and it has been running thereafter, as such the same cannot be made applicable to the petitioner retrospectively. 7. Pending writ petition, Respondent No.1 issued G.O.Ms.No.48, Environment, Forests, Science & Technology (Section-II) Department, dated 08.05.2018 and framing the new rules i.e. The Andhra Pradesh Wood Based Industries (Establishment and Regulation) Rules, 2018 (for short “the Rules, 2018”). According to which Rule 2(f), 2(i) and 3(4) of the Rules, 2018, the petitioner is entitled to continue his licence without reference to the distance of 5.00 kms radius as claimed by the Respondents. He further prays that the petitioner is entitled for continuation as wood based industry as defined under Rule (2) of the Rules, 2018. 8. On the other hand, learned Government Pleader for Forests filed counter affidavit on behalf of Respondent No.4 wherein it is stated that once the cancellation orders were issued by the licensing authority i.e. Divisional Forest Officer, Wildlife Management Divison, Tirupati vide Ref.No.109/2004/NP-3, dated 15.05.2013 duly canceling the saw mill licence which was issued to the petitioner’s saw mill in the year 1998. Consequent upon the function of saw mill must be stopped. But, the owner of the saw mill i.e. Sri M.M. Patel, M/s. Gayathri Saw mill, Renigunta Road, Tirupati, Chittoor District has ignored the cancellation orders and has been running the saw mill as usual. In this connection, the necessary instructions had been issued to the concerned Forest Range Officer, S.V. National Park, Tirupati to stop the functioning of the saw mill. Accordingly the Forest Range Officer, S.V. National Park, Tirupati has informed the vide Ref.No.03/2010, dated 18.07.2013, that the saw mill functioning is stopped at present. It is further stated that in obedience of the interim orders of this Court, the necessary instructions were issued to the concerned Forest Range Officer, S.V. National Park, Tirupati to reopen the saw mill till the disposal of the appeal by the appellate authority. 9. It is further stated that the owner of the said saw mills, have shown the records and submitted written statement that the saw mill has been running from 27.11.1998. 9. It is further stated that the owner of the said saw mills, have shown the records and submitted written statement that the saw mill has been running from 27.11.1998. On verification of the petitioner’s saw mill licence, it is noticed that it is contradictory as per the Rule 4(1) (b) of the Andhra Pradesh Saw Mill (Regulation) Rules, 1969 (for short “the Rules, 1969”) as amended vide G.O.Ms.No.99, EFS&T(For.III) Department, dated 17.07.1998 that every proprietor of an existing saw mill shall obtain a licence from the Licensing Authority within sixty days from the date of publication of these rules and any existing saw mill should not be operated beyond sixty days without a valid licence under these rules. But, the petitioner has failed to obtain a licence from the licensing authority i.e. Divisional Forest Officer, Chittoor, East Division, Chittoor within 60 days i.e. 03.08.1998 to 03.10.1998 from the date of publication of the said rules and as per the Section 5 (2) of the Rules, 1969 that the licence granted for Saw Mills which are located within 5.00 kms radius / distance of forest boundary shall not transferable and no transfer of owner ship of saw mill licence should be resorted to within 5.00 Kms radius / distance from the forest boundary. 10. Learned Government Pleader for Forests submits that the petitioner’s saw mill, as per the enquiry report it is observed and also as per the orders of cancellation dated 15.05.2013 and also as per the order in appeal dated 03.08.2013, the petitioner’s saw mill is situated within the 5.00 kms distance from the boundary of the notified reserved forest area, as such the petitioner is not entitled to run saw mill as per Rule 5(2) of the Rules, 1969 and also Rule 3 of the Rules, 2018. He further submits that the petitioner’s saw mill does not fall in the category of wood based industry as defined under Rule 2 (i) of the Rules, 2018 and admittedly the petitioner’s saw mill is situated within the 5.00 kms radius/distance to the notified forest area boundary. Therefore, the impugned order of cancellation dated 15.05.2013 and order in appeal dated 03.08.2013 do not warrant any interference of this Court. As such the writ petition is liable to be dismissed. 11. Heard the learned counsel for the petitioner, learned Government Pleader for Forests and perused the material placed on record. 12. Therefore, the impugned order of cancellation dated 15.05.2013 and order in appeal dated 03.08.2013 do not warrant any interference of this Court. As such the writ petition is liable to be dismissed. 11. Heard the learned counsel for the petitioner, learned Government Pleader for Forests and perused the material placed on record. 12. On perusal of the material placed on record, petitioner’s saw mill was established on April, 1998, prior to the issuance of G.O.Ms.No.99 dated 17.07.1998 and it was granted licence vide Licence No.33 of 1999, dated 27.11.1998 in accordance with the Rule 4(1)(a) with the of the Rules, 1969. As such it appears that the petitioner’s saw mill was established before the new rules which are framed under G.o.Ms.No.99 dated 17.07.1998. Hence the restrictions if any as enumerated under G.O.Ms.No.99 are not applicable retrospectively and also against the existing saw mills. The impugned order in the appeal dated 03.08.2013 passed by the appellate authority is contrary to the judgment rendered by this Court in W.P.No.17687 of 2013, dated 21.06.2013. 13. It is further observed that pursuant to the orders of this Court dated 21.06.2013, the petitioner submitted detailed statutory Appeal dated 01.08.2013 but the appellate authority passed an impugned order dated 03.08.2013 considering the earlier representation / earlier Appeal dated 01.06.2013, which is contrary to the observations / orders of this Court. 14. It is further observed that Respondent No.1 framed the Rules, 2018 under which Rule 2 (i) of the Rules, 2018 defined wood based industry as under: 2(i) Wood Based Industry’ means any industry which processes wood as its raw material such as saw mills/veneer/plywood or any other form of wood. 15. As per the definition, the petitioner’s saw mill can be termed as wood based industry. That the Rule 3(4) of the Rules, 2018 which is extracted as under: 3. No Wood based industry without licence: (4 )The distance restriction as mentioned in sub-rule(2) above will not be applicable to a wood based industry established in an industrial Estate or a Municipal area. 16. The restriction of distance of 5.00 kms from the notified reserved forest area was not applicable to the wood based industries which were already established at Municipal area. 17. Admittedly the petitioner saw mill / wood based industry was established in Tirupati municipal area. 16. The restriction of distance of 5.00 kms from the notified reserved forest area was not applicable to the wood based industries which were already established at Municipal area. 17. Admittedly the petitioner saw mill / wood based industry was established in Tirupati municipal area. Therefore, the restriction enumerated under G.O.Ms.No.99, dated 17.07.1998 vide Rule 5(2) of the Rules, 1969 and the Rule 3(1)(2)(3) of the Rules, 2018 are not applicable to the petitioner. 18. From the above, undoubtedly, an existing sawmill could be shifted to another location within the same forest division. The bar contained in sub-rule (2) of Rule 3 of the Rules applies only for setting up fresh sawmills. If the argument of the learned Government Pleader for Forests is accepted that the bar contained in sub-rule (2) of Rule 3 would also apply to the shifting of the existing sawmills. But, this Court is of the considered opinion that the word “fresh” connotes in sub-rule (2) of Rule 3 of the Rules would be rendered redundant. It is well settled principle of construction of statute that no such interpretation can be placed to render any word or expression used in a statute waste or surplusage. The rule making authority, in its wisdom, with clear intendment as specified that the bar contained in Rule 3(2) is applicable only to the setting up of 'fresh' saw mills and, therefore, that bar cannot be applied to the shifting of the existing saw mills. 19. In Divisional Forest Officer, Kaghaznagar and another vs. Sree Venkateswara Saw Mills, Kaghaznagar, 2002 (5) ALT 286 (D.B), the Division Bench of the High Court of Judicature at Hyderabad held as follows: “4. The contention of the learned Government Pleader for Forests is not acceptable to us. 19. In Divisional Forest Officer, Kaghaznagar and another vs. Sree Venkateswara Saw Mills, Kaghaznagar, 2002 (5) ALT 286 (D.B), the Division Bench of the High Court of Judicature at Hyderabad held as follows: “4. The contention of the learned Government Pleader for Forests is not acceptable to us. Sub-rule (2) of Rule 3 of the Rules reads as follows: "(2) No licence for setting up fresh saw mills within a distance of 5 Kms., from the boundary of any Forest under the control of the Forest Department whether notified or not shall be granted, except when it is required for Departmental use." Sub-rule (4) of Rule 5 of the rules reads as follows: "(4) In case the saw mill premises is to be changed, or when the machinery is to be shifted from one place to another within same forest division, such changes should not be done without prior approval of licensing authority." Undoubtedly, an existing saw mill could be shifted to another location within the same forest division but only after prior approval of the licensing authority - in the instant case, the Divisional Forest Officer, under Rule 5(4) of rules. The bar contained in sub-rule (2) of Rule 3 applies only for setting up fresh saw mills. If the argument of the learned Government Pleader for Forests is accepted that the bar contained in sub-rule (2) of Rule 3 would also apply to the shifting of the existing saw mills, then, we are of the considered opinion that the word "fresh" occurring in sub-rule (2) of Rule 3 of the rules would "be rendered redundant and surplusage. It is well settled principle of construction of statute that no such interpretation can be placed to render any word or expression used in a statute waste or surplusage. The rule making authority, in its wisdom, with clear intendment has specified that the bar contained in Rule 3(2) is applicable only to the setting up of 'fresh' saw mills and, therefore, that bar cannot be applied to the shifting of the existing saw mills. In Gwalior Rayon Silk Mfg. The rule making authority, in its wisdom, with clear intendment has specified that the bar contained in Rule 3(2) is applicable only to the setting up of 'fresh' saw mills and, therefore, that bar cannot be applied to the shifting of the existing saw mills. In Gwalior Rayon Silk Mfg. (Wvg.) Company Limited v. Custodian of Vested Forests, Mohammad Ali Khan v. Commissioner of Wealth Tax, AIR 1997 SC 1165 , Institute of Chartered Accountants of India v. Price Waterhouse, AIR 1998 SC 74 , it is held that the intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. Further in Shyatn Kishori Devi v. Patna Municipal Corporation, AIR 1996 SC 1678, Management, Shahara (Delhi) Sahranpur Light Railway Company Limited v. S.S. Railway Workers Union, S. Narayanaswami v. G.Panneerselvam, , Union of India v. Sankalchand, , A.R. Antuely v. Ramdas Srinivas Nayak, , Mohammad Ali Khan v. Commissioner of Wealth Tax (supra), Institute of Chartered Accountants of India v. Price Waterhouse (supra), the Apex Court held that "a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. From this it follows that the Courts attempt should be to give meaning to each and every word used by the Legislature. In Aswini Kumar Ghose v. Arabinda Base, , Patanjali Shastry, CJ., said that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh, Jagannadhadas, J., said : "It is incumbent on the Court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning of application". In Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh, Jagannadhadas, J., said : "It is incumbent on the Court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning of application". In J.K. Cotton Spinning and Weaving Mills Company Limited v. State of UP., , Das Gupta, J., speaking for the Supreme Court observed: "In the interpretation of Statutes, the Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect." The Privy Council in Quebec Railway, Light, Heat and Power Company v. Vandry, AIR 1920 PC 181 , held that the Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the Legislature will not be accepted except for compelling reasons. In Hill v. Williams Hill (Park Lane) Limited, (1949) 2 All ER 452 (HL) referred to in Gherulal Parakh v. Mahadeodas Maiya, and Umed v. Rajsingh, Viscount Simon observed: "Though a parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in the case of any Act of Parliament is not to be assumed. When the Legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words and something which would not be there if the words were left out". In State of Bombay v. Ali Gulshan, , in construing 6(4) of the Bombay Land Requisition Act, 1948, which provides that 'the State Government may requisition the premises for the purpose of a State or any other public purpose', the Supreme Court rejected the argument that the words 'any other public purpose' are restricted to a public purpose which is also a purpose of the State and said: "If the words 'any other public purpose' in the statute in question have been used only to mean a State purpose, they would become mere surplusage; Court should lean against such a construction as far as possible." 20. From the judgment referred above, the interpretation and analogy laid down by the Hon’ble Division Bench holds good. Therefore, for the reasons stated above and in view of the ratio laid down by this Court as stated supra, the petitioner is entitled for the relief prayed. 21. In view of the foregoing discussion, the present writ petition is allowed by setting aside the proceedings in order of appeal vide Rc.No.1450/2013/M5 dated 03.08.2013 and cancellation order vide Rc.No.109/2004/NP3 dated 15.05.2013. The Respondents are directed not to interfere with the activities of the petitioner’s saw mill or wood based industry. There shall be no order as to costs. 22. As a sequel thereto, interlocutory applications pending, if any in the writ petition, shall also stand dismissed.