Allahabad High Court

Smt. Manu Kumari vs State Of U.P. And Others on 20 May, 2022

Bench: Vivek Kumar Birla, Vikas Budhwar




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40
 
Case :- WRIT - C No. - 25042 of 2011
 
Petitioner :- Smt. Manu Kumari
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Rahul Sahai
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Vikas Budhwar,J.

1. Today when the matter was taken up a request was made on behalf of the Sri Rahul Sahai, learned counsel for the petitioner for adjourning the matter. However, this Court finds that present petition is of the year 2011 and the petitioner has not been able to obtain any interim order.

2. Accordingly, present writ petition is being decided on the basis of pleadings so available on record and after hearing Sri Sharad Srivastava, learned Standing Counsel.

3. This is a petition under Article 226 of the Constitution of India seeking following reliefs:-

"1. Issue a writ, order or direction in the nature of certiorari for quashing the impugned order dated 4.4.2011 passed by the respondent no. 4 vide Patrank No. 4126/22-18 (Annexure-1 to the Writ Petition).

2. Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent authorities not to interfere in the peaceful running and functioning of the Saw Mill of the petitioner situated at Lalpur, Chitaula, Arniya, Bulandhshahar."

4. Perusal of relief as sought in the present writ petition reveals that the petitioner herein is challenging the order / notice dated 4.4.2011 issued by the fourth respondent, whereby the petitioner was required to shift its Saw Mill within a period of seven days. Further relief has also been sought in the nature of mandamus commanding the respondents herein not to interfere in the peaceful running and functioning of the Saw Mill of the petitioner situated at Lalpur, Chitaula, Arniya, Bulandhshahar.

5. As per the pleading so set forth in the present writ petition, which reveals that the petitioner was running the abovenoted Saw Mill with one Madan Pal Singh s/o Hardev Singh since 1987. A license to the said effect was issued in favour of Sri Madan Pal Singh bearing No. 205/2003 Arniya. It has also been pleaded that an agreement was also entered between the petitioner and Madan Pal Singh. However, as stated in paragraph 5 of the writ petition on 16.11.2004 Sri Madan Pal Singh s/o Hardev Singh transferred the license in favour of the petitioner. A copy of the license dated 16.11.2004 has been appended as Annexure-2 at page 21 of the paperbook in which there is a specific condition mentioned therein that the Saw Mill should not fall within 10 kms of existing forest.

6. Sofar as the procedure and the manner according to which licenses as well as ancillary and incidental issues are to be governed with respect of Saw Mills it is clearly provided by the Rule by name and the nomenclature of Uttar Pradesh Establishment and Regulation of Saw Mills Rules, 1978, which has been enacted in exercise of the powers under Clause (a) of Section 51-A of the Indian Forest Act, 1927.

7. As a matter of fact, in the case of T.N Godavarman Thirumulkpad vs. Union of India and others (1997) 5 SCC 760 the Hon'ble Apex Court in proceedings under Article 32 of the Constitution of India in Writ Petition (C) No. 202 of 1995 had issued certain directions vide order dated 8.5.1997, however, sofar as the same pertains to state of Uttar Pradesh. The same is being quoted as under:-

"1. After hearing the learned amicus curiae, the learned Attorney General and the other learned counsel, we direct as under:

A. In the State of Uttar Pradesh the following is permitted-

1. The Principal Chief Conservator of Forest (PCCF) may, on a case-to-case basis, consider grant of permission to an existing licensed saw mill to relocate itself, provided that the relocated site is not within 10 kms of any existing forest.

2. To alleviate the unintended hardship which may be caused to the ordinary populace in the hill areas who need forest produce for their survival, it is clarified as under:-

(a) Nothing contained in the orders passed by this Court would prevent the U.P. Forest Corporation from directly undertaking the exercise of collecting forest produce including fallen wood (but not any felling or cutting of trees or timber) to the extent strictly necessary, and disturbing the same ex depot to the people living in the hill areas.

(b) The Forest Corporation may, with the prior permission of the PCCF, remove dead or dry trees for supply in the same manner ex depot to people residing in those areas. The Forest Corporation shall (i) undertake such activity itself without engaging any outside agencies, and (ii) keep an account of the dead and dry trees felled and removed by them, and shall by way of an affidavit file the same in this Court."

8. In pursuance of the directions so issued by the Hon'ble Hon'ble Apex Court in the abovequoted decision on 8.5.1997 it was mandated that the Principal Chief Conservator of Forest (PCCF) may on case-to-case basis consider grant of permission to an existing license Saw Mill to relocate itself provided that the relocated existing area is not within 10 kms of any existing forest.

9. In the aforesaid factual backdrop, it appears that the respondents herein conducted survey for the purposes of determining the distance of the existing Saw Mill vis-a-vis the forest area so earmarked therein. It is come on record that on 28.2.2011 a communication has been issued under the signature of the respondent no. 2 addressed to Forest Conservator and Regional Director Forest, Meerut Area, Meerut, which is Annexure-9 to the writ petition at page 57 of the paperbook, wherein the details of the petitioner finds place at Sl. No. 11, according to which it is just 6.47 kms within the area earmarked as forest.

10. Consequently, a notice was issued on 4.4.2011, which is under challenge, by the respondent no. 4 requiring the petitioner to remove the Saw Mill, which is existing as continuance of the same would be in defiance of the orders / directions issued by the Hon'ble Apex Court.

11. Challenging the same, now the petitioner is before this Court.

12. This Court on 4.5.2011 connected the present petition with Writ C No. 23131 of 2011 (Subhash Chandra And Others vs. State of U.P. and others) in which on 22.4.2011 the following order was passed:-

"Connect and list this petition with Writ Petition 23131 of 2011."

13. Subsequently, Writ C No. 23131 of 2011 (Subhash Chandra And Others vs. State of U.P. and others) came to be dismissed vide order dated 22.11.2018 on the ground that as now no cause of action survives. The aforesaid order dated 22.11.2018 is also quoted as under:-

"Heard Sri R. K. Sharma, learned counsel for the petitioners and learned Standing Counsel for the State.

Learned counsel for the petitioners Sri R. K. Sharma submits that he does not wish to press the writ petition as no cause of action now survives.

The writ petition is, accordingly, dismissed."

14. This Court further finds that Uttar Pradesh Establishment and Regulation of Saw Mill Rules, 1978 under went amendment on 4.12.2017 the Uttar Pradesh Establishment and Regulation of Saw Mills (6th Amendment) Rules, 2017 have come into existence. The aforesaid amended Rules 2017 are quoted as under:-

"Uttar Pradesh Shasan

Van Avam Vanya Jeev Anubhag-2

The Governor is pleased to order the publication of the following English translation of Notification no. 2903 /14-2-2017-165G/2017, dated 04 December, 2017 for general information.

NOTIFICATION

No. 2903 /14-2-2017-165G/2017

Lucknow, Dated 04 December, 2017

In exercise of the powers under clause (a) of section 51-A of the Indian Forest Act, 1927 (Act no. 16 of 1927), read with section 21 of the General Clauses Act, 1897, (Act no. X of 1897), the Governor is pleased to make the following rules with a view to amending the Uttar Pradesh Establishment and Regulation of Saw Mills Rules, 1978 :-

THE UTTAR PRADESH ESTABLISHMENT AND REGULATION OF SAW MILLS (SIXTH AMENDMENT) RULES, 2017

Short title and Commencement

1 (1) These rules may be called the Uttar Pradesh Establishment and Regulation of Saw Mills (Sixth Amendment) Rules, 2017.

(2) They shall extend to the whole of Uttar Pradesh.

(3) They shall come into force with effect from the date of their publication in the official

Gazette .

General Amendment

2. In the Uttar Pradesh Establishment and Regulation of Saw Mills Rules, 1978, hereinafter referred to as the said rules for the words "Establishment and Regulation of Saw Mills" the words "Wood-Based Industries (Establishment and Regulation)", wherever occurring including heading shall be substituted.

Amendment of rules 2 to 12

3. In the said rules for rules, 2, 3, 4, 5, 5A, 6, 7, 8, 9, 10, 11, 11A and 12 set out in column-1 below the rules as set out in column-2 shall be substituted , namely:-

Column-1

Existing rules

Column-2

Rules as hereby substituted

Definitions

2. In these rules, unless the context otherwise requires :-

(a) "Saw mills" means and includes any mechanical devices whether operating with electric power, fuelpower or man power for the purpose of cutting, sawing or converting timber and wood into pieces or the like acts, but shall not include such mechanical devices whose engine power is up to 3 H.P.* (*Substituted by Notification No. 4219/14-2-98-405(209)96TC II dated 26.06.1998)

(b) 'One unit of saw-mill' shall be taken as equivalent to 25 H.P. engine or any part thereof. (Thus a saw mill using 65 H.P. engines will be deemed

as equivalent to 3 units).

Definitions

2. (1) In these rules, unless the context

otherwise requires :-

(a) ''Industrial Estate' means areas notified by the State Government for establishment of Wood Based Industries.

(b) ''License' means a license granted under the rules notified by the State in pursuance of these Rules.

(c) ''Principal Chief Conservator of Forests' means a Forest officer of the rank of Principal Chief Conservator of Forests and it also includes an officer designated as a Head of Forest Department in the State.

(d) ''Round log' means a piece of wood in its natural form, having mid girth of thirty centimeter or more under bark and it includes such round log even after its bark has been removed or its surface has been dressed, manually or by using a band saw or any other machine or equipment to make its cross section square or near-square for the purpose of ease in its transportation and/or storage.

(e) ''Saw Mill', means plants and machinery in a fixed structure or enclosure, for conversion of round logs into sawn timber.

(f) ''Sawn timber' means beams, scantlings, planks, battens and such other product obtained from sawing of a round log.

(g) ''State Level Committee' means a Committee constituted by the State Government under para 12 (i) of these Rules.

(h) ''wood based industry' means any industry which processes wood as its raw material (Saw mills/veneer/plywood or any other form such as sandal, katha wood etc.).

(2) Words and expressions used but not

defined under these Rules and defined in the Indian Forest Act, 1927 or the relevant local Forest Act as applicable in the State, and the Rules framed there under shall have the meaning assigned to them in such Act or Rules.

(3) In case of any dispute regarding interpretation of any word or expression, the decision of the Ministry of Environment, Forest and Climate Change shall be final.

Restriction of Establishment of Saw Mills

3.Within the limits of any reserved or protected forests and within a radius of 80 Kilometers of such limits No person shall establish, erect or operate any saw mill or machinery for converting or cutting timber and wood obtaining a license from the Divisional Forest Officer concerned.* *Substituted by Notification No.

1117/XIV-3-32-73 dated June 6,1990

Restriction on location of Wood Based Industries

3- (1) In respect of distance from the boundary of nearest notified forests or protected areas, Wood Based Industries shall be allowed to operate as per State-specific order/approval of the Hon'ble Supreme Court/Hon'ble High Court of the concerned state/Central Empowered Committee: or, beyond ten kilometres of aerial distance from the boundary of nearest notified forests or protected areas, excluding roadside/railway side/canal side plantations, whichever is less.

(2) A Wood Based Industries can be established in an industrial Estate or a Municipal area, irrespective of the aerial distance from the boundary of nearest notified forest or protected area.

Application for obtaining license

4. Any person desiring to establish, erect or operate any existing saw mill shall make an application in that behalf to the Divisional Forest Officer concerned for obtaining a license in the form given in the Schedule I appended to these Rules.

Application for obtaining license

4- Any person desiring to establish, erect or operate any wood based industry shall make an application in that behalf to the State Level Committee for obtaining a license in e-format prescribed by the State Level Committee. The application shall be made and disposed off through online system only as developed by U.P. Forest Department on behalf of State Level Committee. No application shall be disposed off manually. This online system shall be developed to facilitate public viewing and tracking status of application and their disposal.

Grant of license

5. On receipt of an application under rule 4, the Divisional Forest Officer shall acknowledge the same and thereafter shall make such enquiries as he may deem fit and after satisfying himself with regard to following factors, grant the license in the form given in Schedule II appended to these Rules:-

(i) that the required quantity of timber through legitimate means would be available at the proposed venue of the Saw Mill without causing any damage to the tree growth in the forests under the control of the Government and the adjacent rural areas;

(ii) that the applicant has acquired or is in a position to acquire necessary area for erecting and running a saw mill in accordance with the conditions specified in the license;

(iii) that the necessary machinery, power etc, is available or is likely to be available to the applicant,

(iv) that the applicant has obtained a "No objection Certificate" from the District Magistrate concerned for erecting and running the saw mill, In case the Divisional Forest Officer is not satisfied he may reject the application.

Grant of license

5- On receipt of an application under rule 4, the State Level Committee shall acknowledge the same and thereafter shall make such enquiries as it may deem fit and after satisfying itself State Level Committee shall approve the license. After approval from the State Level Committee the Divisional Forest

Officer shall grant the license, in the format prescribed by the State Level Committee, through online system only. In case, the State Level Committee is not satisfied, it may reject the application. The applicant must have facility to track status of the application thereof and receive the license or rejection through online system only.

Re-location of Saw Mills

5A- The Principal Chief Conservator of Forests, Uttar Pradesh, on an application and after such inquiry as he deems fit, may order for Relocation of an existing Saw mill from one place to another within the State.

Re-location of Wood Based Industries

5A- Any person desiring to relocate any wood based industry shall give an application to the Divisional Forest Officer or equivalent officer concerned in regard to re-location. Divisional Forest Officer or equivalent officer as the case may be on the receipt of an application shall give his comments to Conservator of Forests/Zonal Chief Conservator of Forests who may submit the application along with his comments to the State Level Committee, which may enquire, or if it deems right may allow re-location of wood based industry from one place to another.

Period of validity of license

6 - Every license granted under rule 5 or renewed under rule 7 shall remain valid for such period not exceeding five year from the date of issue or renewal as may be specified in the license.

Provided that in case of a license referred to in the proviso to rule 5 or rule 7 the period of validity shall be five year.

Period of validity of license

6- Any Wood Based Industries license granted shall remain valid for such period not exceeding five year from the date of issue or renewal as may be specified in the license.

Renewal of license

7- On the application made to the Divisional Forest Officer concerned for renewal of the license granted under rule 5, he may renew the same indicating thereon the period for which it has been renewed. The renewed application for license shall be disposed off within sixty days of its receipt.

Provided that in case the application is not disposed off within sixty days, from the date of the receipt of the application by the Divisional Forest Officer, the license shall be deemed to have been renewed for a period of three years:

Provided further that aforesaid proviso shall not apply to saw mills situated within ten kilometers of any existing forest.

Explanation- In this rule existing forest shall not include trees situated on either side of the roads and the railway tracks.

Failure to get the license renewed before the expiry of date, will make the licensee liable to punishment in accordance with Section 77 of the Indian Forest Act, 1927 for operating the saw mill without license.

Grant or renewal of a license to a wood based industry

7- No license to a wood based industry shall be granted or renewed without obtaining prior approval of the State Level Committee. However, a State Level Committee may delegate the power of renewal of license to a wood based industry to the Divisional Forest Officers of the concerned Forest Divisions. The renewal of license shall be done through online system only.

Revocation of the license

8-Notwithstanding anything contained in the foregoing Rules, the Divisional Forest Officer concerned may, where he has reason to believe that a licensee is operating the saw mill in contravention of the provisions of these Rules or conditions of license or the licensee is involved in activities prejudicial to the interests of forest conservancy at any time, after giving revoke the license granted under rule 5 or renewed under rule 7.

Revocation of the license

8- Notwithstanding anything contained in the foregoing Rules, the Divisional Forest Officer concerned may, where he has reason to believe that a licensee is operating wood based industry in contravention of the provisions of these Rules or conditions of license or the licensee is involved in activities prejudicial to the interests of forest conservancy at any time, revoke the license granted after giving one month notice.

Procedure of renewal non-renewal or revocation of license

9- Where the concerned Divisional Forest Officer refuses to issue or renew the license, he shall send intimation thereof to the applicant or the holder of the license, as the case may be giving reasons therefore.

Appeal against refusal to issue or renew or revoke license

10- Any person aggrieved by an order of the Divisional Forest Officer under rule 9, may within 30 days of the service of the order on him, appeal to the concerned Conservator of Forests.

The Conservator of forest there upon shall decide the appeal after giving the Divisional Forest Officer and or appellant, an opportunity of being heard. The decision of the Conservator of Forest on such appeal shall be final.

Appeal against revocation of license

9- Any person aggrieved by an order of the Divisional Forest Officer under rule 8, may within 30 days of the service of the order on him, appeal to the concerned Conservator of Forests/Zonal Chief Conservator of Forests.

The Conservator of Forests/Zonal Chief Conservator of Forests there upon shall decide the appeal after giving the Divisional Forest Officer and or appellant, an opportunity of being heard. The decision of the Conservator of Forests/Zonal Chief Conservator of Forests on such appeal shall be final.

Fees for grant and renewal of license

11- Fees for grant and renewal of license- An annual fee for grant or

renewal of licenses per unit shall be payable by the applicants/ licensees as below:-

Unit

Annual fee

Saw Mill

Rs. 25,000/- per unit

Veneer

Rs. 25,000/- per unit

Plywood

Rs. 50,000/-

Veneer & Plywood

Rs. 75,000/- per unit

A relocation fee per unit for transfer of saw mill/veneer/plywood unit shall be payable by the applicants/ licensees as below:-

Propose relocated site

Fee

Rural area

Rs. 50,000/-

District Headquarter

Rs, 1,00,000/-

Commissionery Headquarter

Rs. 2,00,000/-

Mahanagar area

Rs. 5,00,000/-

Fees for grant and renewal of license

10- Annual fees for applicants/license holder shall be paid by them as per decisions taken by State Level Committee from time to time. The fees shall be deposited online only.

Power of exempt from the provision and Rules

11A. Where the State Government is satisfied that the operation of the

timber based industries, such as, Plywood Mill, Veneer Mill, Katha industries, Paper and Pulp industries and Cooling towers manufacturing industries and like industries whose final product is not timber and also the machinery used as saw mills are integral parts of their production process, is not possible due to application of all or any of the provisions of these rules, the State Government may, by notifications, for reasons to be recorded, exempt such industries from the operation of such rules subject to such conditions, as it may deem fit, for the conservation of the tree-growth in the forests under the control of the Government and in the areas adjacent thereto.

Constitution of the State Level Committee

11-

(1) State Level Committee shall consist of the following members

Principal Chief Conservator of Forests/Head of Forest Department

Chairperson

A representative of the Regional Office of the Ministry of Environment, Forest and Climate Change

Member

A representative of the State Forest Department not below the rank of a Conservator of Forests dealing with preparation of Working Plans/Working

Member

Director/Additional Director of Department of Industries

Member

Representative of the Forest Development Corporation

Member

An officer not below the rank of Conservator of Forests working in the Forest Head Quarters

Member

Secretary

(2) The State Level Committee may co-opt an officer from Territorial wing of the Forest Department not below the rank of Conservator

of Forest and officers from Department of Agriculture and Department of Revenue of the State Government.

(3) The State Level Committee shall meet at least once in three months.

(4) The quorum of the State Level Committee meeting shall be at least fifty percent of these members.

(5) State Level Committee will invite one representative of the industry nominated by the saw-mill association as a special invitee to every meeting of the State Level Committee.

Savings

12- Nothing contained in these Rules shall apply to the ordinary operations of domestic carpentry or to other similar works on small-scale.

Powers and functions of the State Level Committee

12- The State Level Committee State Level Committee shall:- (a) assess the availability of timber in the State by way of appropriate study in demand and supply as and when it decide. State Level Committee shall devise suitable mechanism for sustainable use of timber in a way that does not affect the forests of the area adversely;

(b) approve the names of Wood Based Industries which may be considered for grant of fresh license or enhancement of the existing licensed capacity in case the State Level Committee is satisfied that timber is available legally for the said new Wood Based Industries (such as Trees outside forest, Forests etc.);

(c) ensure that the amount lying with the respective State Forest Department (recovered from Wood Based Industries) is utilized for the purpose of afforestation only;

(d) examine and make appropriate recommendations or any other matter referred to by the State Government to the Ministry of Environment, Forest and Climate Change.

Appeal against the decision of the State Level Committee

13 (1) Any person aggrieved by the decision taken by the State Level Committee may file an appeal before the concerned Regional Office of the Central Government in the Ministry of Environment, Forest and Climate Change seeking appropriate relief within 60 days.

(2) Head of Regional Office shall within 60 days of filing the appeal pass appropriate order.

(3) If, for any reason, any person is aggrieved by the orders so passed in the appeal, he may prefer an appropriate petition/application/ appeal in the High Court.

Records to be maintained by Wood Based Industries

14- Each wood based industry shall maintain and regularly update records as prescribed by State Level Committee.

Savings

15- Industries/processing plants not using round logs of domestic origin or operating without a band saw or re-saw or circular saw of more than thirty centimeter diameter shall not require license. (a) Sawn timber, cane, bamboo, reed, plywood, veneers or imported wood, procured for legitimate sources.

(b) Block board, MDF or similar wood-based products, procured from legitimate sources.

(c) Round log/timber form species declared as agro-forestry/agricultural crops and/or exempted from the purview of the felling and transit regime in the State, and procured form legitimate sources.

However, State Level Committee of the State may allow installation of circular saw of diameter upto 60 centimeter in such industries having specialized requirement.

Such industries shall be registered with the Forest Department of the State and shall be regulated, details of which are to be prescribed by the State.

Transfer of license on sale/succession etc shall be done only with the approval of State Level Committee.

By Order,

(Renuka Kumar)

Principal Secretary"

15. As per the amended Rule 3(1) the restriction with regard to establishment of Saw Mill is to be not within 10 kms of the forest. Here as per the onshowing of the petitioner as apparent from the document dated 16.11.2004 for transferring the license in favour of the petitioner, wherein one of the condition was to the extent that Saw Mill should not be within 10 kms of the forest and moreover a communication dated 28.2.2011, which has been the basis for passing of the order dated 4.4.2011 has also not been challenged by the petitioner, which itself shows that the distance of the petitioner's Saw Mill is 6.47 kms from the forest, which is within the restricted area. It has also come on record as per onshowing of the petitioner in paragraph 11 of the writ petition that the license of the petitioner had been extended for the period from February, 2010 to 31.12.2010 and there is nothing to show that the same has been extended beyond that.

16. A Division Bench of this Court had an occasion to consider the said contingency that certain existing Saw Mill was within 10 kms of the forest and this Court after considering the judgment of Hon'ble Apex Court in the case of T.N Godavarman Thirumulkpad (supra) had proceeded to pass the order dated 21.7.2015 in the case of Pradeep Kumar Saxena vs. State of U.P. and others, 2015 (7) ADJ 615 , which reads as under:-

"In these proceedings, the petitioner has called into question an order dated 3 December 2011 passed by the Principal Chief Conservator of Forest, holding that the licence granted to the petitioner for conducting a saw mill stands cancelled since the distance between the saw mill and the reserved forest is 4.66 kms. However, liberty was granted to the petitioner, should he desire to relocate the saw mill beyond the distance of 10 kilometres, to submit a fresh application for consideration.

The basis of the order of the Principal Chief Conservator of Forest was a direction issued by the Supreme Court in T N Godavarman Thirumulkpad v. Union of India1. Insofar as is material to these proceedings, the direction issued by the Supreme Court is as follows:

"A. In the State of Uttar Pradesh the following is permitted -

In the counter affidavit filed by the Principal Chief Conservator of Forest on 28 February 2012, it has been stated that the petitioner purchased a saw mill licence bearing 47/92/Atrauli and by a communication dated 30 November 2004 of the Principal Chief Conservator of Forest, the saw mill was relocated to plot no.99, khasra 382 Quarsi Road, Ram Ghat, Aligarh with a condition that the relocated site should not be within 10 kms from an existing forest. The Divisional Forest Officer, Aligarh issued a saw mill licence No.64/2009 on 6 September 2009. The Principal Chief Conservator of Forest, by a letter dated 29 April 2011, reiterated that in view of the order of the Supreme Court dated 8 May 1997, the relocated saw mill should not be within 10 kms from the existing forest. The saw mill of the petitioner was found to be within 4.66 kms from the nearest forest block on the basis of the following GPS data:

Division

Name of Saw Mill owner

GPS reading of relocated saw mill

GPS reading of nearest forest block

Distance from nearest forest block (in Km)

Aligarh

Pradeep Kumar Saxena

27°54'64.0"N

078°06'59.5"E

27°57'36.6"N

78°5'3.30"E

4.66 Km

It has been stated in the counter affidavit that the Divisional Forest Officer has afforded sufficient opportunity to the petitioner for a personal hearing and to present a written statement by a letter dated 20 May 2011. In response to the letter, the petitioner presented a written statement on 27 May 2011. A personal hearing was also held on 27 May 2011. It was found that the petitioner had not substantiated the case that the saw mill was not located within 10 kms from the nearest Chherat forest block or that it was outside the limits of the Nagar Nigam. Following this, the Principal Chief Conservator of Forest, revoked the order dated 30 November 2004 on 21 November 2011. While directing a closure of the operation of the saw mill, it has been provided that in case, the saw mill owner is willing to shift his saw mill beyond 10 kms from the forest area, a relocation proposal may be sent.

In the counter affidavit, it has been stated that the GPS data was relied upon to compute the distance between the relocated site of the saw mill and the existing forest. In this regard, during the course of the submissions, a reference has been made to the provisions contained in Section 11 of the General Clauses Act, 1897 under which measurement of distances for the purposes of any Act or Regulation made after the commencement of the said Act shall, unless a different intention appears, be measured in a straight line on a horizontal plane. This principle was accepted in a judgment of a Full Bench of the Andhra Pradesh High Court in Shaik Hussain v. Divisional Forest Officer, Proddatur2.

Though it has been urged on behalf of the petitioner that the conclusion of the Principal Chief Conservator of Forest to the effect that the saw mill of the petitioner was within a distance of 10 kms is not correct, absolutely no material has been placed on the record or drawn to the attention of the Court during the course of these proceedings to displace the finding of fact. Learned counsel appearing on behalf of the petitioner has placed reliance on the judgment delivered by the Supreme Court in Lafarge Umiam Mining Pvt. Ltd. v. Union of India3 in support of the submission that the Supreme Court has expected that there should be regular updating and creation of a GIS based decision support database.

The basic issue is that, if the petitioner was aggrieved by the finding that the distance of his saw mill from the reserved forest was not beyond the distance of 10 kms, as mandated in the order of the Supreme Court dated 8 May 1997, at least some cogent material ought to have been placed on the record which would have warranted the Court to scrutinize the matter. In the absence thereof, the Court cannot proceed either on the basis of hypothesis or surmise or come to a conclusion that the finding of fact recorded by the Principal Chief Conservator of Forest was erroneous.

For these reasons, we see no reason to entertain the writ petition. The petition is, accordingly, dismissed. There shall be no order as to costs."

17. Looking into the facts of the case as well as the judgment of Hon'ble Apex Court as referred above and the judgment of coordinate Bench of this Court this Court finds that the relief so claimed by the petitioner cannot be granted to its as admittedly the petitioner's Saw Mill is within 10 kms of the forest land and the said fact has also not been disputed by the petitioner and further the issue relating to the direction of the Hon'ble Apex Court contained in the order dated 8.5.1997, the amendment so made in Uttar Pradesh Establishment and Regulation of Saw Mills (6th Amendment) Rules, 2017 and in the light of the fact that writ petition pertains to the year 2011 and we are in 2022 as much water has flown therefrom.

18. Resultantly, present petition is dismissed. However, leaving it open to the petitioner to approach the competent authorities for the grant of license as per the Uttar Pradesh Establishment and Regulation of Saw Mills Rules 1978 as amended from time to time and in vogue for the grant of license of running Saw Mills and in case the petitioner approaches the competent authority as envisaged in the Uttar Pradesh Establishment and Regulation of Saw Mills Rules, 1978 as amended from time to time as in vogue after completing the formalities so prescribed therein this Court has no reason to disbelieve the fact that the application so preferred by the petitioner shall be considered in accordance with law.

19. With the aforesaid observations, present petition stands dismissed.

Order Date :- 20.5.2022

Lalit Shukla