Chattisgarh High Court

Kaushila Bai And Shankar Lal Saw ... vs Union Of India on 13 January, 2022

                       HIGH COURT OF CHHATTISGARH, BILASPUR

                                            Order Sheet

                                Writ Petition (C) No. 177 of 2022

             Kuashila Bai and Shankar Lal Saw Mill & others Versus Union of India &
                                            others




13.01.2022         Mr. Vaibhav Shukla, counsel for petitioners.

                   Mr. Tushar Dhar Diwan under instruction of ASG, counsel for
             respondent no.1.

Mr. Ashish Tiwari, G.A. for State/respondents 2 to 5.

The petition is admitted for hearing.

Since all the respondents are represented through their respective advocates, issuance of notice stands dispensed with.

Heard on I.A. No.01, which is an application for grant of interim relief.

The petitioners through the present application have sought for an

interim relief to the extent of staying the effect and operation of the impugned

guidelines dated 11.11.2016 (Annexure P-3) as amended in 2017 and the

consequential notifications issued on 13.08.2021 (Annexure P-2) and also

the impugned order Annexure P-1 dated 29.12.2021.

The petitioners primarily as of now are seeking for an interim protection

to the extent of staying the effect and operation of Annexure P-1 dated

29.12.2021 whereby the Licensing Authority i.e. respondent no.5 has ordered

to close the saw mills operated by the petitioners from 01.01.2022 till

22.08.2024.

All the petitioners in the present writ petition are saw mill owners and

the saw mills are being operated in and around district Rajnandgaon. All the

petitioners have valid licence for establishing and running saw mills and the

licence to operate saw mills is still valid.

The Hon'ble Supreme Court in the land mark judgment of T. N.

Godavarman Thirumulpad Vs. Union of India, WPC No. 202/95, has been

periodically passing orders, instructions and guidelines in connection with the

protection and conservation of environment and forest throughout the

country. Two such orders were issued by the Hon'ble Supreme Court on

12.12.1996 and 05.10.2015.

Based on the instructions issued by the Hon'ble Supreme Court in the

aforesaid two orders, the Ministry of Environment, Forest and Climate

Change issued a detailed resolution in the form of guidelines dealing with

Wood-based Industries (Establishment and Regulation) dated 11.11.2016

Annexure P-3 which is also under challenge in this writ petition.

Pursuant to the guidelines framed by the Central Govt. and also taking

into consideration the provisions of the Chhattisgarh Kashtha Chiran

(Viniyaman) Adhiniyam, 1984 (hereinafter referred as "the Adhiniyam, 1984")

particularly Section 5, the State Govt. vide their notification dated 13.08.2021

(Annexure P-2 of the writ petition) have declared the areas falling within 10

kilometers aerial distance from the boundary of the nearest notified forest as

a prohibited area which is also under challenge in this writ petition.

Based upon the notification dated 13.08.2021, the impugned order

Annexure P-1 was passed whereby the respondent no.5 has taken a

decision for staying the renewal of licence for establishment and operating of

saw mills and also has ordered for closing of existing saw mills for a period

from 01.01.2022 to 22.08.2024 which are located/situated at an aerial

distance of less than 10 kilometers from the nearest notified forest boundary.

This has led to the filing of the present writ petition.

Learned counsel for petitioners submits that the said order of closure of

the petitioners' establishment firstly is in violation of the principles of natural

justice as no opportunity of hearing was given to the petitioners before the

impugned order was passed. Secondly it was contended that the impugned

order is bad to the extent that in terms of the directives of the Hon'ble

Supreme Court in the case of T. N. Godavarman (supra) all the States were

required to constitute a State Level Committee (in short "SLC") which in the

instant case had also been constituted. The said Committee had

recommended for establishment and operation of saw mills in the factual

backdrop of the State to be beyond 4 kilometers aerial distance whereas the

present notification Annexure P-2 published by the State Govt. is in contrary

to the recommendation made by the State Level Committee. The further

contention of the petitioners is that the State could not have gone contrary to

the recommendation made by the SLC and the same would also amount to

violating the guidelines and instructions laid down by the Hon'ble Supreme

Court in the case of T. N. Godavarman (supra). According to the petitioners, once the SLC have been established, the State Govt. is denuded of its power

so far as laying down the guidelines in respect of the establishment and

running of wood-based industry which includes saw mills are concerned. It

was also the contention of the petitioners that the decision of taking the

distance by areal measurement is not justifiable. It was further contended

that when on an earlier occasion the show cause notices were issued, the

same were questioned by the petitioners in a bunch of writ petitions and all

these bunch of writ petitions got disposed of by the Co-ordinate Bench of this

Court. The leading case of which being WPC No. 4950 of 2021 and other

connected matters. All the writ petitions got disposed of permitting the

petitioners to reply to the show cause notice and the respondent authorities

were expected to hear the case of petitioners and take a decision keeping in

view the law and guidelines issued by the Supreme Court and also keeping

in view the minutes of the 16 th meeting of SLC held on 22.04.2019 and

meanwhile, an interim protection was also granted in favour of the

petitioners. However, the observations and directions of the High Court in its

order in WPC 4950/2021 was not followed.

Learned State counsel, on the other hand, submits that the writ petition

is one which otherwise should have been seized by the Division Bench in

terms of Rule-23 of the High Court of Chhattisgarh Rules, 2007 as the

impugned notification Annexure P-2 falls within the category of a subordinate

legislation and would therefore fall under Clause-2 of Sub Rule-1 of Rule-23,

therefore, the matter should not be heard by a Single Bench.

Learned State counsel also opposing the interim application submits

that the nature of relief sought for by the petitioners at the first instance is

granting of full and final relief which otherwise would not be permissible while

hearing the interim application. He submits that let the issue itself be decided

finally on merits after permitting the State to file their reply in support of their

contention justifying the two orders i.e. Annexures P-1 & P-2. It is

contended that the impugned order is one which has a force of law as it has

been issued invoking the powers conferred upon the State under Section 5 of

the Chhattisgarh Kashtha Chiran (Viniyaman) Adhiniyam, 1984 and that an

order passed in exercise of the power conferred under the statute cannot be

stalled by way of an interim relief. It is further objected by the learned

counsel for State that neither the Supreme Court nor any order of the Central

Govt. has taken away the power of the State Govt. that is enshrined under

Rule-5 of the Adhiniyam, 1984. Therefore also, the petitioners do not

deserve any interim protection at this juncture. The contention of the state

counsel is that as of now it is not a case of cancellation of their licence or

ordering of the closure of their saw mills for all times to come, rather the

impugned order has been passed only because the petitioners'

establishment fall within the prohibited areas as notified by the State Govt.

This in other words, according to the state counsel, means that if at all if the

petitioners intend to carry on their business of saw mill, they would only have

to relocate themselves to an area beyond the prohibited area i.e. beyond 10

kilometers. That upon the petitioners relocating or reallocating themselves, they would be free to carry on their business that they were carrying on till

now.

The state counsel further was of the view that the paramount objective

behind the issuance of the impugned notification and orders is to ensure the

protection of forest and the environment adjacent to the forest. That it is

also in adherence to the guidelines issued by the Hon'ble Supreme Court in

the case of T. N. Godavarman (supra). The further contention of the state

counsel is that only because the SLC has made a recommendation does not

mean that the State Govt. is bound by the recommendation made by the SLC

and the State Govt. otherwise have all the powers to take an appropriate

decision in terms of Adhiniyam, 1984.

So far as the preliminary objection of the State that the matter to be

seized by the Division bench is concerned, this Court is of the opinion that

Annexure P-2 is not under challenge on the ground of it to be ultra vires to

the Constitution of India or any other statutory provision or the same has

been challenged on the competency of the Govt. in passing the said order.

In view of the same, this Court is of the opinion that the the matter is one

which is to be heard only by the Single Bench as what is under challenge

only so far as the determination of the aerial distance of 10 kilometers.

What is necessary to be considered while dealing with the interim

application at this juncture is the implication of the order Annexure P-1. The

plain reading of order Annexure P-1 would show that there was an abrupt

order of closing of the saw mills of petitioners overnight w.e.f. 01.01.2022 for

a period up till 22.08.2024 i.e. for almost three years time. The petitioners are all those Saw Mill owners who are running the business for a period of more

than two decades as contended by the petitioners, Prima facie, this Court is

of the opinion that when the respondents intended to take appropriate

measures in closing down of saw mills which fall within an aerial distance of

10 kilometers from the nearest forest boundary, the respondents, as a matter

of fact being a welfare State, ought to have granted some reasonable time to

the petitioners to relocate themselves to a distance beyond the prohibited

areas.

In the instant case, there does not seem to be prima facie any order by

the State Govt. granting the petitioners breathing time to firstly search for a

plot beyond 10 kilometers and to relocate there existing infrastructure to the

new location. Ordering for closure of an establishment like saw mills

overnight would be not only detrimental to the interest of the petitioners who