Andhra Pradesh High Court - Amravati
The State Of Ap vs P Sattibabu on 29 October, 2024
APHC010319262024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3483]
WRIT APPEAL NO: 661/2024
Between:
The State Of Ap and Others ...APPELLANT(S)
AND
P Sattibabu ...RESPONDENT
Counsel for the Appellant(S):
1. GP FOR FORESTS
Counsel for the Respondent:
1. ARUN SHOWRI G
CORAM : THE CHIEF JUSTICE DHIRAJ SINGH THAKUR
SRI JUSTICE RAVI CHEEMALAPATI
DATE : 29.10.2024
JUDGMENT:
(Per Justice Ravi Cheemalapati
Cheemalapati)
This letter patent Appeal has been preferred by the State feeling
aggrieved by the orders dated 24.01.2024 passed by the learned Single Judge
whereby the writ petition No.8489 of 2023 filed by respondent here
herein was
allowed.
2. Appellants herein
in were respondents and respondent herein was the writ
petitioner in the Writ Petition covered by the orders impugned in this Writ Appeal.
3. The grievance of the writ petitioner as set out in the writ affidavit, in
nutshell, is that he is the owner of Sri Venkata Satyanarayana Swamy Sawmill
located in R.S.No.3/170, Bypass Road, Kaikaluru Village, Krishna District and he
applied for change of name and relocation of the subject sawmill from Kaikaluru
Village to Butchayyapeta Village of the then Visakhapatnam District (now
Anakapalli District). Considering the report of the Forest Range Officer,
Chodavaram, that the location of the sawmill is at the distance of 9.2Kms from
the Comp.No.778 of Gollapalem RF and 5.82Kms from Comp.No.596 of Pangidi
RF, on 19.01.2022 the 2nd respondent approved for change of name and
relocation of the sawmill and communicated the same to the petitioner vide
Ref.No.6843/2021/Prod.3 dated 09.02.2022 and based on the same, the 3 rd
respondent granted permission to the petitioner for establishment of sawmill in
Butchayyapeta Village. While so, the 4th respondent issued notice dated
20.04.2022 informing the petitioner that the location of the said sawmill is 2Kms
away from Kandipudi Compensatory Afforestation Area (CA) and as the
relocation of sawmill is within 5kms from the nearest land under the control of
Forest Department, the license is liable to be cancelled and advised to shift the
sawmill to any location beyond 5Kms from the nearest forest boundary.
It is the further case of the petitioner that the 3 rd respondent issued show
cause notices dated 14.09.2022 and 01.12.2022, for which, replies dated
03.10.2022 and 23.12.2022 were submitted by the petitioner. Pending
consideration of the same, the authorities interfered with the functioning of
petitioner's sawmill. Aggrieved by the action of respondents in issuing show
cause notices and interfering with the functioning of the sawmill, the petitioner
filed the Writ Petition covered by the orders impugned in the Writ Appeal.
4. The respondents in the writ petition through counter of respondent No.3
while justifying their action contended that as per Rule 11(2) of the Andhra
Pradesh Wood Based Industries (Establishment and Regulation) Rules, 2018
(for short 'Rules, 2018), no relocation of wood based industries shall be allowed
into the area prohibited under these rules. As per Rule 3(2) of the said rules, no
license for setting up of the wood based industry shall be permitted within a
distance of 5Kms from the boundary of any Forest under control of Forest
Department, whether notified or not shall be granted except when it is required
for departmental use and the Kandipudi Compensatory Afforestation land was
already handed overby the Tahsildar, Buchayyapeta on 15.08.2009 for
departmental use and the petitioner proposed for relocation in 2022. There are
no merits in the writ petition warranting interference of this Court and the writ
petition is liable to be dismissed.
5. The learned Single Judge, upon considering the pleadings as well as
submissions made by the learned counsel for both the parties, allowed the writ
petition, holding that the prohibition contained in Sub-Rule (2) of Rule 3 of Rules,
2018 would only apply to fresh wood based industries but not to
relocation/shifting of existing sawmills and moreover without issuing any
notification declaring the Kandipudi Compesatory Afforestation land area as
reserve forest, the authorities issued show cause notice dated 01.12.2022
informing the petitioner that the location of the said sawmill is within 5Kms from
the nearest forest boundary. The said orders are assailed by the State in this
Writ Appeal.
6. Heard Sri P.Vishnu Teja, learned Special Government Pleader for the
Appellants and Sri G.Arun Showri, learned counsel for the respondent.
7. Learned Special Government Pleader for the appellants while reiterating
the grounds of the appeal submits that the order of the learned Single Judge is
contrary to Sub-Rules (2) & (3) of Rule 11 of the Rules, 2018, which prohibit
even relocation of the wood based industries within 5Kms radius of the forest
area. The learned Special Government Pleader would further submit that the
learned Single Judge failed to consider that Section 24 of the Andhra Pradesh
Forest Act, 1967 (for short Act, 1967), empowers the Government to declare any
forest or waste land to be a protected forest and upon such declaration the
provisions of this chapter shall apply and proviso to the said provision further
authorizes the Government to declare the land as protected forest, pending
enquiry and record at a survey of settlement and therefore, the orders impugned
are unsustainable and are liable to be set aside. Accordingly, prayed to allow the
writ appeal by setting aside the orders impugned and to dismiss the writ petition.
8. Per contra, the learned counsel for the respondent/writ petitioner sought to
justify the orders passed by the learned Single Judge terming it as impeccable
and needs no interference. The learned counsel for the respondent would further
submit that as the government did not issue any notification as required by Sub-
section (1) of Section 24 of the Act, 1967, declaring Kandipudi Compensatory
Afforestation Area to be a protected forest, the learned Single Judge had rightly
allowed the writ petition setting aside the notice dated 01.12.2022 impugned in
the writ petition. The orders of the learned Single Judge suffers neither from
illegality nor irrationality and the said orders do not deserve any interference of
this Court. Accordingly, prayed to dismiss the appeal being meritless.
9. Perused the material available on record and considered the submissions
made by both the learned counsel.
10. The show cause notice dated 01.12.2022, impugned in the writ petition
shows that as the site of relocation of the subject sawmill is within 5Kms from
Kandipudi Compensatory Afforestation Forest Area, it is not feasible to run the
sawmill to that area and advised to shift the sawmill to any location beyond
5Kms from the nearest forest boundary in view of the prohibition contained in
Rule 11(2) of the Rules, 2018.
11. Rule 11 of the Rules, 2018, deals with Transfer of license on sale
succession and relocation of any wood based industry. Sub-Rule (2) of Rule 11
envisages that no relocation of wood based industries shall be allowed into the
area prohibited under these rules and Sub-Rule (3) Prohibits relocation of Wood
Based Industry located within 5kms of forest area within 5kms radius of the
forest area.
12. Section 2(d) of the Andhra Pradesh Forest Act, 1967, defines 'forest
division' in the following terms:
"2(d) Forest division means such area as may be declared, by notification, by the
Government or by such authority as may be empowered by the Government in
this behalf to be a forest division for the purposes of this Act"
The above definition in clear terms says that the Government or an
authority empowered by the Government shall be competent to declare an area
as a forest division but only by way of issuance of notification.
13. It is apposite here to mention that, a coordinate bench of this Court vide
orders dated 28.08.2023 passed in W.P.No.1888 of 2023 held that since the
respondents have not issued notification with respect to Kandipudi
Compensatory Afforestation land as required under Section 24 of the Act, 1967,
declaring it to be reserve forest, the petitioner therein is entitled for consideration
of his application for relocation of the sawmill at the proposed location.
14. Section 24 of the Andhra Pradesh Forest Act, 1967, empowers the
Government to issue notification for declaration of any forest or waste land
placed under its management and control to be a protected forest. For
expediency, the said provision is extracted hereunder:
"24 Protected Forests: 1) The Government may, by notification, declare any
forest or waste land which is the property of the Government or which is placed
under their control for management and which is not included in a reserved
forest, to be a protected forest and, on such declaration, the provisions of this
Chapter shall apply to such protected forest.
(2) No such notification shall be made in respect of any land unless the nature
and extent of the rights of the Government and of private persons in or over
such land have been inquired into and recorded at a survey of settlement, or in
such other manner as may be prescribed, and every such record shall be
presumed to be correct until the contrary is proved:
Provided that, where in the case of any land, the Government consider that
such inquiry and record are necessary, but that the completion thereof will
occupy such length of time, as in the meantime, to endanger the rights of the
Government, the Government may, pending such inquiry and record, declare
such land to be protected forest but such declaration shall not affect or abridge
any existing rights of individuals or Communities."
15. Section 24 of the Act, 1967, no doubt empowers the Government to
declare any forest or waste land which is its property or placed under its control
for management, to be a protected forest by issuing a notification and upon
issuance of such declaration, the provisions of this chapter shall apply to such
protected forest. Therefore, issuance of notification declaring the land to be a
'reserved forest' or 'forest division' is very much essential on the part of the
Government or any authority empowered by it to make the provisions of the Act,
1967, and Rules, 2018, made thereunder applicable to the said land. It is not at
all the version of the government in the earlier round of litigation in the writ
petition or in this writ appeal that any such notification declaring Kandipudi
Compensatory Afforestation area has ever been issued. The said aspect of non-
issuance of any notification has been highlighted in the writ petition for allowing
the said writ petition. Without issuing notification under Section 24 of the Act,
1967, which is a must for declaring Kandipudi Compensatory Afforestation land
area to be a protected forest, the provisions of the Act and Rules made
thereunder cannot be made applicable to the said land including Rule 11(2) & (3)
of the Rules, 2018.
16. The learned Single Judge while considering the impact of non-issuance of
notification in a proper perspective had rightly allowed the writ petition setting
aside the show cause notice dated 01.12.2022 impugned therein and therefore,
the orders impugned in this writ appeal do not deserve any interference of this
Court. The Writ Appeal lacks merits and deserves dismissal.
17. Accordingly, the Writ Appeal is dismissed. However, this order does not
preclude the appellants from taking steps upon issuance of notification by the
concerned in terms of Section 24 & 2 (d) of the Act, 1967, if they so desire.
There shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any, in this Appeal
shall stand closed.
DHIRAJ SINGH THAKUR,CJ
RAVI CHEEMALAPATI,J
RKS
