Orissa High Court
Afr vs State Of Odisha And Others ..... Opp. ... on 15 December, 2023
Author: B.R. Sarangi
Bench: B.R. Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 20221 OF 2023
In the matter of an application under Articles 226 and
227 of the Constitution of India.
---------------
AFR
Sanjib Kumar Mohanty ..... Petitioners
and others
-Versus-
State of Odisha and others ..... Opp. Parties
For Petitioners : M/s. B. Bhuyan, S. Sahoo
and S.S. Bhuyan, Advocates.
For Opp. Parties : Mr. D.K. Mohanty,
Addl. Government Advocate
[O.P. Nos. 1 to 5]
Mr. Abhishekh Dash,
A.K. Dash, A. Khandelwal
and A. Mishra, Advocates
[O.P. Nos. 6, 7 & 8]
P R E S E N T:
THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R. SARANGI
AND
THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
Date of hearing: 06.12.2023:: Date of judgment: 15.12.2023
DR. B.R. SARANGI, J. The petitioners, in this writ petition filed
by way of public interest litigation, seek direction to the
opposite parties to cause an enquiry with regard to
involvement of two Saw Mills, namely, "M/s Behera Saw
Mill" and "M/s Jalaram Saw Mill", of which opposite
parties no.6 and 7 are respectively the proprietors, in
illegal wood logging and wood laundering and take
appropriate action. They further seek direction to the
opposite party-authorities to take action for
relocating/shifting of those Saw Mills to a radial distance
beyond the restrictive area of Similipal Reserve Forest
(National Park), Hatikote Reserve Forest, Mancha Bandha
Reserve Forest and Village Forest.
2. The factual matrix of the case, in brief, is that
the petitioners, claiming to be public spirited persons
having no personal interest, individual gain, private
motive or oblique reasons, have filed this public interest
litigation, stating inter alia that the private opposite
parties no.6 and 7 are the proprietors and owners of M/s
Behera Saw Mill and M/s Jalaram Saw Mill situated in
Chancha Industrial Estate, Baripada. M/s Behera Saw
Mill is located over IDCO-Plot Nos.85 (P), 86(P), 87 and 88
measuring Ac.0.300 for 2500 cft per month, whereas M/s
Jalaram Saw Mill is located on IDCO Plot Nos.8284, 860
(P), measuring Ac.0.344 for 2900 cft. per month. Validity
of the licenses of both the Saw Mills were from 15.11.2021
up to 24.11.2023. The conditions attached to the licenses
were as follows:-
a) License is not transferable.
b) The licenses shall maintain the registers in
Forms D, E, F, and post them up to date at
i.e end of each day 8 p.m. of the day.
c) The registers shall be produced for
inspection and check when demanded by
any Forest Officer of and above the rank of
Forester. Any such Forest officer shall have
the power to enter into the premises of this
Saw Mill or Saw Pit. For the purpose of
inspection and securing compliance with the
condition of the license and any obstruction
given in coming out, the said inspection and
non-production of registers shall be deemed
to be violation on the conditions of the
license.
d) Monthly consolidated account shall be
submitted to the Divisional Forest Officer
before the 10th of the succeeding month.
e) The Saw Mill or Saw Pit as well as the
timber shall be open for inspection by the
Officer mentioned in condition (3) whenever
required.
f) The Saar Mill or Saw Pit shall be closed at
the end of the period prescribed in the
license and the license shall be returned to
the Divisional Forest Officer.
g) The license shall not undertake sawing of
timber belonging to other persons or job
work, unless he is satisfied about the
bonafides of such limber by examining the
connected permits and the marks on the
timber,
h) If the bonafides of the timber is suspected,
he shall detain it and immediately report
the fact to the nearest.
i) Forest Officer or Police Officer for taking
further action.
j) The timber received from other persons for
saving on job work shall be stacked
separately both before and after sawing.
k) For breach of any of the above condition,
the license is liable to punishment as
provided under Section 14 of the Act."
2.1. The above two Saw Mills are situated within 1
KM radial distance of Mancha Bandha Reserve Forest, 5
KM radial distance from Hatikote Reserve Forest and 10
KM radial distance from Similipal Reserve Forest (National
Park). Though opposite parties no.6 and 7 are the owners
and proprietors of two Saw Mills, in fact they are not
operating the said Saw Mills and those two Saw Mills are
operated by opposite party no.8, who is a wood mafia and
involved in illegal felling of trees and wood laundering by
utilizing these two Saw Mills which are situated within
close proximity of Mancha Bandha, Hatikote and Similipal
Reserve Forest (National Park). As such, every day a large
number of trees are illegally cut and removed without any
valid permit and in violation of Forest Act and Rules in
force and brought to these Saw Mills for sawing and,
thereby, making raw materials for production of different
wood items in cheaper rate. To justify the same, it is
pleaded that though these two Saw Mills belonged to two
different persons, namely, opposite parties no.6 and 7,
but the mobile number, which was given by both the Saw
Mills, belonged to opposite party no.8. Thereby, those two
Saw Mills are controlled and operated by opposite party
no.8. It is further alleged that though the normal rate for
sawing wood is Rs.50/- to Rs.100/- per cft., but opposite
party no.8 is charging Rs.300/- per cft. from the local
people as per his desire.
2.2. Section 4 of the Odisha Saw Mills and Saw Pits
(Control), Act 1991 prohibits establishment or operation
of Saw Mills within reserve forest, protected forest or any
forest area or within 10 KM from the boundary of any
forest or forest area. No Saw Mills are to be allowed to be
operated within such restricted area. For the purpose of
granting license to the Saw Mills, the Odisha Saw Mills
and Saw Pits (Control) Rules, 1993 were formulated by
the Govt. of Odisha. Rule-4 of the Odisha Saw Mills and
Saw Pits (Control) Rules, 1993 governs the field in the
matter of granting license to the Saw Mill. Though it is the
duty of the Saw Mill owner, whenever there are reasons to
believe that wood brought to his Saw Mill is illegal/
unauthorized, to immediately inform the Forest
Authorities regarding such illegal/unauthorized wood,
opposite party no.8, who is a wood mafia, is not carrying
out the purpose of the Rules, rather causing harassment
to the public at large. Though grievances are made by the
petitioners to the authorities, namely, forest officials and
police, no action is being taken.
2.3. Earlier, one Bholanath Behera, for the selfsame
allegations, had approached this Court by filing W.P.(C)
PIL No.13051 of 2023, which was disposed of by this
Court, vide order dated 27.04.2023, directing the
petitioner to file fresh representation to the appropriate
authority. The forest authorities are not enquiring into the
matter nor taking any legal action on the grievance made
by the petitioners along with other inhabitants. It is
further pleaded that since Similipal Reserve Forest
(National Park) is situated at a distance of 10 KM radial,
the Saw Mill owners should not be allowed to operate
their Saw Mills within the restricted zone and the same
should be either stopped or relocated/shifted to a radial
distance beyond the restrictive area of the Similipal
Reserve Forest (National Park), Hatikote Reserve Forest,
Manchabandha Forest and Village Forest. Hence, this writ
petition.
3. Mr. S.S. Bhuyan, learned counsel appearing for
the petitioners contended that opposite parties no.6 and
7, contrary to the terms and condition no.16(a) of the
license, have transferred the control of the Saw Mills in
the name of opposite party no.8, who is a wood mafia and
is involved in illegal felling of trees, which was admitted by
opposite party no.4 in the counter affidavit. But opposite
party no.4, having hands in gloves with the private
opposite parties no.6, 7 and 8, is not taking any action. To
fortify his argument, it is contended that the mobile
number provided by opposite party nos.6 and 7 in the
Govt. website belonged to opposite party no.8 and,
therefore, there is nexus between opposite parties no.6
and 7 with opposite party no.8 for illegal using of Saw
Mills for illegal gain. It is further contended that the Saw
Mills are being operated within the prohibitory zone and
the forest officials are not regularly monitoring the
activities of the Saw Mills by installing CCTV and taking
any real time data, because of which they are heavily
involved in illegal felling of trees in the reserve forest.
Thereby, the action of the authority is illegal, arbitrary
and contrary to the provisions of law. It is further
contended that the Saw Mills have also not taken consent
to establish and operate from the State Pollution Control
Board, whereas other Saw Mills are operating after
obtaining the said permission. It is further contended that
the Saw Mills even though are engaged in felling of trees
from the reserve forest, but they have not obtained any
license, as is mandated by the Forest Conservation Act,
1980. It is further contended that Baripada City in the
year 2023 has been recorded as the hottest place, which
warrants an immediate action to prevent the work being
carried out by the Saw Mills directly affecting the
environment. It is further contended that even if the Saw
Mills have rehabilitated as per the orders of the Supreme
Court, but the said orders never intended for the
rehabilitation of the Saw Mills inside the prohibitory zone
by establishing industrial estate. It is contended that the
legislative intent behind the Act was to regulate the Saw
Mill operation throughout the State and to control
deforestation. Before enactment of the Act, the license was
required by private individuals to operate within forests
and in the surrounding. Subsequently, the 1991 Act was
introduced incorporating the absolute ban in the
prohibitory zone. It is further contended that the 3rd
proviso introduced after amendment has to be read
constructively with the first proviso and not destructively
and if done the latter would defeat the legislative intent of
the Act so also the force of the Act would be stripped away
and would result in the whole Act being reduced to mere
pieces of paper.
To substantiate his contention, learned counsel
appearing for the petitioners has relied upon the
judgments of this Court, as well as apex Court in the
cases of Laxminarayan Saw Mill v. State of Odisha,
1995 (1) OLR 1; Saraswati Saw Mill v. State of Odisha,
(1995) 79 CLT 61, Sushila Saw Mill v. State of Odisha,
(1995) 5 SCC 615; T.N. Godavarman Thirumulpad v.
Union of India, (1997) 2 SCC 267; and Samatha v.
State of Andhra Pradesh, AIR 1997 SC 3297.
4. Mr. D.K. Mohanty, learned Addl. Government
Advocate appearing for the State-opposite parties no.1 to
5 vehemently contended that action has been taken in
compliance of the orders passed by the apex Court, but
that itself cannot enure to the benefit of the petitioners.
Rather, the present writ petition, in the nature of public
interest litigation, is not maintainable either in facts or in
law. As such, the nature of allegations, which have been
made by the petitioners against opposite parties no.6, 7
and 8 is purely of "personal interest" but not of "public
interest". It is further contended that the apex Court in
W.P.(C) No. 356 of 2007 and in different IAs passed orders
on 16.08.2010 that the State of Odisha to implement the
directions of the apex Court contained in orders dated
10.07.2009 and 07.05.2010 and carry out necessary
amendments to the provisions of the Act and Rules
framed thereunder in order to give effect to the
rehabilitation plan and that the industrial estates have to
be identified so that the Saw Mills are appropriately
rehabilitated in terms of the directions issued by the apex
Court. It is further contended that the allegations made
by the petitioners that the two Saw Mills of opposite
parties no.6 and 7 are operated and controlled by opposite
party no.8 involving rampant illegal felling of trees and
wood laundering and these two Saw Mills are situated
within 10 KM radial distance of reserve forest is not
correct. It is contended that opposite parties no.6 and 7,
being the proprietors of the above named Saw Mills,
submitted the documents like monthly returns, show
cause notices, etc. and, as such, opposite party no.8 is
being authorized by the proprietors of the Saw Mills to
receive any type of letters, documents from all sources
and execute documents as well as verification on behalf of
them. As such, if the allegations made by the petitioners
are taken into consideration, then opposite party no.8 has
not involved in any forest offence nor any case is pending
against him for illegal felling of trees and removal of the
same. It is further contended that the representation
dated 17.04.2023 has not been received by the authority
and after receipt of the representation dated 15.05.2023,
the ACF (Enforcement), Baripada Forest Division was
directed to conduct an enquiry with regard to the
allegations made in the representation, who in turn
conducted the enquiry and submitted his report vide
letter dated 04.07.2023 indicating that the allegations
regarding illegal establishment of two Saw Mills are not
correct. Similarly, the allegation of furtive sawing of
timbers by the smugglers with the help of illegal Saw Mills
is also not correct. As such, the allegations made in the
representation are incorrect and the same have been
denied by the ACF (Environment). Furthermore, the
functioning of the Saw Mills is recorded in the CCTV
cameras. To ensure working of all the cameras,
continuous power supply along with provision for power
back up was there. The CCTV footages were submitted on
weekly basis to the Division Forest Office for smooth
monitoring as well as functioning of their Saw Mills.
Thereby, the allegations so made by the petitioners are
not correct and, as such, the writ petition filed by the
petitioners in the nature of "personal interest litigation"
should be dismissed with cost.
5. Mr. Abhishekh Dash, learned counsel
appearing for opposite parties no.6, 7 and 8 vehemently
contended that the allegations made by the petitioners,
that the establishment and operation of the Saw Mills by
opposite parties no.6 and 7 within 1 KM radial distance of
Mancha Bandha Reserve Forest, 5 KM radial distance of
Hatikote Reserve Forest and 10 KM radial distance of
Similipal (National Park) is in violation of Section 4 (1) of
the Odisha Saw Mills and Saw Pits (Control) Act, 1991;
and that the delegation of control with respect to Saw
Mills by the licensee-opposite parties no.6 and 7 in favour
of opposite party no.8 is impermissible under the terms of
the license; and that there are reasons to believe that
woods brought to the Saw Mills are illegal and
unauthorized and, as such, the Mills are involved in wood
laundering, have no legs to stand. It is contended that
establishment of Saw Mills inside the identified industrial
estate (Chancha Industrial Estate) is not violative of
Section 4 (1) of the Odisha Saw Mills and Saw Pits
(Control) Act, 1991, as those Saw Mills, which were closed
down, were established again in obedience to the direction
of the apex Court, referred to above, for rehabilitation of
the Saw Mills in the State, and in pursuance of the
amendment made to Section 4(1) of the Act by inserting
third proviso thereto. It is further contended that there is
no transfer or delegation of control over Saw Mills by the
proprietors-opposite parties no.6 and 7 in favour of
opposite party no.8. As such, the Saw Mills are not
involved in any kind of illegal timber business, as is
evident from their track record, and they have no criminal
antecedent till date. Therefore, in absence of any
materials, the writ petition, which has been filed by way of
public interest litigation by making bald allegations, is not
maintainable. Consequentially, dismissal of the writ
petition is sought for with heavy cost.
6. This Court heard Mr. S.S. Bhuyan, learned
counsel appearing for the petitioner; Mr. D.K. Mohanty,
learned Addl. Government Advocate appearing for
opposite parties no.1 to 5; and Mr. Abhishekh Dash,
learned counsel appearing for opposite parties no.6, 7 and
8 and perused the record. Since pleadings have been
exchanged, with the consent of learned counsel for the
parties, this writ petition is being disposed of finally at the
stage of admission.
7. To resolve the dispute, this Court framed the
following issues:
(i) Whether the public interest litigation is
maintainable on the basis of the allegations
made in the writ petition?
(ii) Whether the authorities are empowered to
establish/rehabilitate the Saw Mills of opposite
parties no.6 and 7 in the locations, where they
are established in terms of the provisions of the
Act and the Rules framed thereunder and in
compliance of the direction given by the apex
Court?
(iii) Whether the opposite parties no.6 and 7 have
transferred the control of their Saw Mills to
opposite party no.8? and
(iv) Whether the Saw Mills of opposite parties no.6
and 7 are involved in any kind of illegal timber
business so as to direct for their closure?
Issue No.(i) :
8. Now, it is to be seen whether the present writ
petition filed in the guise of public interest litigation is for
the betterment of the society at large or for benefiting any
individual.
8.1. In Malik Bros v. Narendra Dadhich, (1999) 6
SCC 552, the apex Court held as follows:-
"... a public interest litigation is usually
entertained by a Court for the purpose of
redressing public injury enforcing public duty,
protecting social rights and vindicating public
interest. The real purpose of entertaining such
application is the vindication of the rule of law,
effect access to justice to the economically
weaker class and meaningful realization of the
fundamental rights. The direction and
commands issued by the courts of law in a
public interest are for the betterment of the
society at large and not for benefiting any
individual. But if the Court finds that in the garb
of a public interest litigation actually an
individual's interest is sought to be carried out
or protected, it would be the bounden-duty of
the Court not to entertain such petitions as
otherwise a very purpose of innovation of public
interest litigation will be frustrated. It is in fact
a litigation in which a person is not aggrieved
personally but brings an action on behalf of the
downtrodden mass for the redressal of their
grievance."
In view of the law laid down by the apex Court, in our
considered opinion, on Public Interest Litigation (PIL),
redressal of public injury, enforcement of public duty,
protection of social rights and vindication of public
interest must be the parameters for entertaining a PIL.
The Court has a bounden duty to see whether any legal
injury is caused to a person or a cluster of persons or an
indeterminate class of persons by way of infringement of
any constitutional or other legal rights while delving into
a PIL. The existence of any public interest as well as bona
fide are the other vital areas to come under the Court's
scrutiny. In absence of any legal injury or public interest
or bona fide, a PIL is liable to be dismissed at the
threshold. It is to be borne in mind that ultimately it is
the rule of law that is to be vindicated. As such, there is a
need for restrain on the part of the public interest
litigants when they move Courts. The Courts should also
be cautious and selective in accepting PIL as well.
8.2. Public Interest Litigation which has now come
to occupy an important field in the administration of law
should not be 'publicity interest litigation' or 'private
interest litigation'. If not properly regulated and abuse
averted, it becomes also a tool in unscrupulous hands to
release vendetta and wreck vengeance, as well. There
must be real and genuine public interest involved in the
litigation and not merely an adventure of knight errant or
poke ones nose into for a probe. It cannot also be invoked
by a person or a body of persons to further his or their
personal causes or satisfy his or their personal grudge
and enmity. Courts of justice should not be allowed to be
polluted by unscrupulous litigants by resorting to the
extraordinary jurisdiction. A person acting bona fide and
having sufficient interest in the proceeding of public
interest litigation will alone have locus standi and can
approach the Court to wipe out violation of fundamental
rights and genuine infraction of statutory provisions, but
not for personal gain or private profit or political motive or
any oblique consideration.
8.3. In Ashok Kumar Pandey v. State of West
Bengal, 2003 (9) Scale 741, the apex Court held as
follows:
"Public Interest Litigation is a weapon which
has to be used with great care and
circumspection and the judiciary has to be
extremely careful to see that behind the
beautiful veil and public interest an ugly private
malice, vested interest and/or publicity seeking
is not lurking. It is to be used as an effective
weapon in the armory of law for delivering
social justice to the citizens. The attractive
brand name of public interest litigation should
not be used for suspicious products of mischief.
It should be aimed at redressal of genuine
public wrong or public injury and not publicity
oriented or founded on personal vendetta. Court
must be careful to see that a body of persons or
member of public, who approaches the Court is
acting bona fide and not for personal gain or
private motive or political motivation or other
oblique consideration. The Court must not allow
its process to be abused for oblique
consideration. Some persons with vested
interest indulge in the pastime of meddling with
judicial process either by force of habit or from
improper motives often they are actuated by a
desire to win notoriety or cheap popularity. The
petitions of such busybodies deserves to be
thrown out by rejection at the threshold and in
appropriate cases with exemplary costs."
Laying down certain conditions on which the
Court has to satisfy itself it was observed:
"The Court has to be satisfied about-
(a) the credentials of the applicant;
(b) the prime facie correctness or nature of
the information given by him;
(c) the information being not vague and
indefinite;
The information should show gravity and
seriousness involved. Court has to strike a
balance between two conflicting interest;
(i) nobody should be allowed to indulge in
wild and reckless allegations besmirching
the character of others; and
(ii) avoidance of public mischief and to avoid
mischievous petitions seeking to assail,
for oblique motives, justifiable executive
action. In such case, however, the Court
cannot afford to be liberal."
The apex Court, on the point of exercising
restraint, held that it has to be very careful that under the
guise of redressing a public grievance, it does not
encroach upon the sphere reserved by the Constitution to
the executive and the legislature. The Court hardening its
stand said:-
"The court has to act ruthlessly while dealing
with imposters and busy-bodies or meddlesome
interlopers impersonating as public-spirited holy
men. They masquerade as crusaders of justice.
They pretend to act in the name of pro bono
public, though they have no interest of the
public or even of their own to protect."
8.4. In T.N. Godavarman Thirumulpad v. Union
of India, (2006) 5 SCC 28, the apex Court, relying upon
the judgments of S.P. Gupta v. President of India, AIR
1982 SC 149 : 1981 Supp. SCC 87, Janata Dal v. H.S.
Chowdhary, AIR 1993 SC 892, after noticing that lakhs
of rupees had been spent by the petitioner to prosecute
the case, held as under:-
"it has been repeatedly held by the Court
that none has a right to approach the Court as a
public interest litigant and that Court must be
careful to see that the member of the public who
approaches the Court in public interest, is
acting bona fide and not for any personal gain
or private profit or political motivation or other
oblique consideration.
................. while the Court has laid
down a chain of notable decisions with all
emphasis at their command about the
importance and significance of this newly
developed doctrine of PIL, it has also hastened
to sound a red alert and a note of severe
warning that courts should not allow their
process to be abused by a mere busybody, or a
meddlesome interloper or wayfarer of officious
intervener without any interest or concern
except for personal gain or private profit or other
oblique consideration."
8.5. Undisputedly, the petitioners have approached
this Court of equity invoking jurisdiction under Articles
226 and 227 of Constitution of India.
In Ramjas Foundation v. Union of India, AIR
1993 SC 852, the apex Court held that who seeks equity
must do equity. The legal maxim "Jure Naturae Aequum
Est Neminem cum Alterius Detrimento Et Injuria Fieri
Locupletiorem", means that it is a law of nature that one
should not be enriched by the loss or injury to another.
Similar view has also been taken in K.R.
Srinivas v. R.M. Premchand, (1994) 6 SCC 620, where
the apex Court held that when a person approaches a
Court of Equity in exercise of its extraordinary
jurisdiction under article 226/227 of the Constitution, he
should approach the Court not only with clean hands but
also with clean mind, clean heart and clean objective.
In Noorduddin v. K.L. Anand (1995) 1 SCC
242, the apex Court held that Judicial process should not
become an instrument of oppression or abuse of means in
the process of the Court to subvert justice for the reason
that the interest of justice and public interest coalesce.
The Courts have to weigh the public interest vis-à-vis
private interest while exercising their discretionary
powers. Easy access to justice should not be misused as
a licence to file misconceived and frivolous petitions.
Similar view has also been taken in Dr. Buddhi
Kota Subbarao v. K. Parasaran, AIR 1996 SC 2687,
and Ramniklal N. Bhutta v. State of Maharashtra,
AIR 1997 SC 1236.
8.6. In Kishore Samrite v. State of U.P., (2013) 2
SCC 398, the apex Court laid down guidelines to the
Court, in the matter of entertaining the PIL, to the
following effect:-
"(1) The obligation to approach the Court
with clean hands is an absolute obligation.
(2) Quests for personal gains haver
become so intense that those involved in
litigation do not hesitate to take shelter of
falsehood and misrepresent and suppress
facts in the court proceedings. Materialism,
opportunism and malicious intent have over-
shadowed the old ethos of litigative values
for small gains.
(3) A litigant who attempts to pollute the
stream of justice or who touches the pure
fountain of justice with tainted hands is not
settled to any relief, interim or final.
(4) The Court must ensure that its process
is not abused and in order to prevent abuse
of the process the Court, it would be justified
even in insisting on furnishing of security
and in cases of serious abuse, the Court
would duty bound to impose heavy costs.
(5) Wherever a public interest is invoked,
the Court must examine the petition carefully
to ensure that there is genuine public interest
involved. The stream of justice should not be
allowed to be polluted by unscrupulous
litigants.
(6) It is the bounden duty of the Court to
ensure that dishonesty and any attempt to
surpass the legal process must be effectively
curbed and the Court must ensure that there
is no wrongful, unauthorised or unjust gain
to anyone as a result of abuse of the process
of the Court. One way to curb this tendency
is to impose realistic or punitive costs"
.
Similarly, in K.D. Sharma v. Steel Authority
of India Ltd., (2008) 12 SCC 481, the apex Court held
that no litigant can play 'hide and seek' with the Courts or
adopt 'pick and choose'. True facts ought to be disclosed
as the Court knows law, but not facts. One, who does not
come with candid facts and clean breast cannot hold a
writ of the court with soiled hands. Suppression or
concealment of material facts is impermissible to a
litigant or even as a technique of advocacy. In such cases,
the Court is duty bound to discharge rule nisi and such
applicant is required to be dealt with for contempt of
court for abusing the process of the Court.
8.7. In State of Uttaranchal v. Balwant Singh
Chaufal, (2010) 3 SCC 402, the apex Court in
paragraphs-143 and 181 of the judgment held as follows:-
"143. Unfortunately, of late, it has been
noticed that such an important jurisdiction
which has been carefully carved out, created
and nurtured with great care and caution by
the courts, is being blatantly abused by filing
some petitions with oblique motives. We think
time has come when genuine and bona fide
public interest litigation must be encouraged
whereas frivolous public interest litigation
should be discouraged. In our considered
opinion, we have to protect and preserve this
important jurisdiction in the larger interest of
the people of this country but we must take
effective steps to prevent and cure its abuse on
the basis of monetary and non-monetary
directions by the courts.
181. In order to preserve the purity and
sanctity of the PIL, it has become imperative to
issue the following directions:
(1) The Courts must encourage genuine
and bona fide PIL and effectively discourage
and curb the PIL filed for extraneous
considerations.
(2) Instead of every individual Judge
devising his own procedure for dealing with
the public interest litigation, it would be
appropriate for each High Court to properly
formulate rules for encouraging the genuine
PIL and discouraging the PIL filed with
oblique motives. Consequently, we request
that the High Courts who have not yet
framed the rules, should frame the rules
within three months. The Registrar General
of each High Court is directed to ensure that
a copy of the rules prepared by the High
Court is sent to the Secretary General of this
Court immediately thereafter.
(3) The Courts should prima facie verify
the credentials of the petitioner before
entertaining a PIL.
(4) The Courts should be prima facie
satisfied regarding the correctness of the
contents of the petition before entertaining a
PIL.
(5) The Courts should be fully satisfied
that substantial public interest is involved
before entertaining the petition.
(6) The Courts should ensure that the
petition which involves larger public interest,
gravity and urgency must be given priority
over other petitions.
(7) The Courts before entertaining the PIL
should ensure that the PIL is aimed at
redressal of genuine public harm or public
injury. The Court should also ensure that
there is no personal gain, private motive or
oblique motive behind filing the public
interest litigation.
(8) The Courts should also ensure that the
petitions filed by busybodies for extraneous
and ulterior motives must be discouraged by
imposing exemplary costs or by adopting
similar novel methods to curb frivolous
petitions and the petitions filed for
extraneous considerations".
Similar view has also been taken by this Court
in Chhabindra Mukhi v. State of Odisha, 122 (2016)
CLT 609.
8.8. Taking into consideration the above principles
of law laid down by the apex Court and applying the same
to the present context, the contention raised by learned
counsel appearing for the opposite parties, that the
petitioners have filed "personal interest litigation" in the
nature of "public interest litigation" to vindicate their
grievance against opposite parties no.6, 7 and 8, is not
tenable in the eye of law. But fact remains, the Saw Mills
of opposite parties no.6 and 7, which have been
rehabilitated by virtue of the direction given by the apex
Court, are being managed by opposite party no.8. More
so, Baripada City in the year 2023 was recorded as the
hottest city and this has happened due to deforestation
affecting the environment greatly. Therefore, to protect
and save the human lives and environment, if such a
petition is filed, it cannot be said that it is a "personal
interest litigation" and is liable to be dismissed. Rather,
this is a public interest litigation, by which the petitioners
otherwise seek to protect the environment, by bringing to
the notice of the Court that such an irregularity has been
caused, which is to be rectified by relocating the Saw Mills
in conformity with the provisions of law. Thereby, issue
no.(i) is answered in affirmative in favour of the
petitioners.
Issue No.(ii):-
9. Before delving into this issue, the provisions of
Section 4 of the Odisha Saw Mills and Saw Pits (Control)
Act, 1991, which are relevant for the purpose of the case,
are to be referred to:-
"4. Establishment and Operation of Saw
Mill and Saw Pit--(1) On and after the
appointed day, no person shall establish or
operate a saw mill or saw pit except under
the authority and subject to the conditions
of a license granted under this Act:
Provided that no person shall
establish or operate any saw mill or saw pit
within a reserved forest, protected forest or
any forest area or within ten kilometers
from the boundary or any such forest or
forest area.
Provided further that the Government
shall for reasons to be recorded in writing
disallow a saw mill or saw pit other than
those referred to in Clause (i) of Sub-section
(2) established and operating prior to the
appointed day within the area mentioned in
the first proviso to continue such operation
and may, In order to meet the needs of saw
facilities for local population, allow a saw
mill or saw pit referred to in Clause (i) of
Sub- section (2), established and operating
prior to the appointed day in such area, to
continue such operation or may allow
further establishment of saw mill or saw pit
in such area either through the Department
of Forest or through a State Public Sector
Undertaking fully owned by it.
**
[Provided also that the State
Government may identify industrial estates
within such area not exceeding two in one
district and shall subject to compliance of
the guidelines issued from time to time
allow the Saw mills or Saw Pits for their
establishment relocation and functioning in
such Industrial estates.
*1. Inserted vide O.A. 2 of 2007, Orissa Gazette Ext. No.273
dated 22.02.2007.
**2.Inserted vide O.A. No.2 of 2011 Orissa Gazette Ext.
No.208 dated 25.01.2011.
Explanation- For the purpose of this sub-
section, the expression "industrial estate"
shall have the same meaning assigned to it
under clause (i) of Section 2 of the Orissa
Industrial Infrastructure Development
Corporation Act, 1980.]
(2) Notwithstanding anything contained in
Sub-section (1):
(i) a saw mill or saw pit, established by the
Orissa Forest Development Corporation
Limited or by any other agency of the
Government prior to the appointed day,
may continue to be operated by such
Corporation agency; as the case may be,
and in such a case, the Corporation or
agency, as the case may be, shall be
deemed to be a licensee for the purposes of
this Act;
(ii) a saw mill or saw pit other than one
referred to in clause (i) and established
prior to the appointed day, may continue to
be operated, and shall be deemed to be a
saw mill or saw pit, as the case may be,
licensed under this Act;
(a) for a period of three months from the
appointed day; or
(b) in an application made in accordance
with Section 6 for a licence is pending on
the expiry of the period specified in clause
(a) till the disposal of such application
under sub-section (2) of Section 7."
9.1. Section 4(1) of the Act, 1991 puts a mandate
that on and after the appointed day, no person shall
establish or operate a saw mill or saw pit except under the
authority and subject to the conditions of a license
granted under the Act. The first proviso attached to this
Sub-section (1) of Section 4 also gives clarification that no
person shall establish or operate any saw mill or saw pit
within a reserved forest, protected forest or any forest area
or within ten kilometers from the boundary of any such
forest or forest area. By virtue of the provisions of Section
4 (1), the saw mills, established within the prohibited
zone, as mentioned in the proviso, have stopped operating
overnight by virtue of enactment of the Act.
9.2. Purpose of the proviso attached to the main
provision is very clear that if the enacting portion of the
Section is not clear, a proviso appended to it may give an
indication as to its true meaning.
9.3. In West Derby Union v. Metropolitan Life
Assurance Society, 1897 A.C. 647, Lord Herschell
stated as under:-
"Of course a proviso may be used to
guide you in the selection of one or other
of two possible constructions of the words
to be found in the enactment, and show
when there is doubt about its scope,
when it may reasonably admit of doubt
as to having this scope or that, which is
the proper view to take of it."
Lord Watson in the same case stated as under:-
"There is no doubt that where the main
provision is clear, its effect cannot be cut
down by the proviso. But where it is not
clear, the proviso, which cannot be
presumed to be a suplusage, can
properly be looked into to ascertain the
meaning and scope of the main
provision."
The aforesaid view has also been referred to in Jennings
v. Kelly, 1940 A.C. 2006 : (1939) 4 All E.R. 464.
9.4. In Hindustan Ideal Insurance Co. v. Life
Insurance Corporation, AIR 1963 SC 1083 : (1963) 2
SCR 56, the apex Court held that there is no doubt that
where the main provision is clear, its effect cannot be cut
down by the proviso, but where it is not clear, the proviso,
which cannot be presumed to be a surplusage, can
properly be looked into to ascertain the meaning and
scope of the main provision.
9.5. The words of a proviso must be given their full
and natural meaning and cannot be restricted by an
artificial construction unless the intention of the
legislature is clearly expressed to show that they were
intended to apply only to a limited number of cases.
9.6. In Devadsan T. v. Union of India, (1964) 4
SCR 680 : AIR 1964 SC 179, the apex Court held that a
proviso should receive a strict construction. It cannot be
so interpreted as to nullify or destroy the main provision.
It is not open to add words to a proviso with a view to
enlarge the scope of the provision. It must be restricted to
the scope reasonably conveyed by the words used therein.
The rule is applied with such strictness that it is not
permissible even to draw any implication from the
specification of any particular case in a proviso by the
application of the maxim expression unius est exclusion
alterius so as to affect the interpretation of the enacting
clause. A proviso unlike an exception should be taken in
connection with the general language of the previous
portion of the clause to which it is attached.
9.7. In view of the aforementioned interpretation
attached to the meaning of the proviso, if Section 4 (1) of
the Act is read as a whole, it would be evident that the
first proviso creates a bar to establish or operate any saw
mill or saw pit within a reserved forest, protected forest or
any forest area or within ten kelometres from the
boundary of any such forest or forest area. The issue
relating to distance criteria for establishment of saw mills
and saw pits contained in the first proviso, which is
clarified to be radial distance (as crow flies), has been
considered by this Court in the case of Maa Mangala
Saw Mill v. State of Orissa, OJC No.11164 of 1996
decided on 08.11.1996.
9.8. In Laxminarayan Saw Mill v. State of
Orissa and others, AIR 1995 ORISSA 114 : 79 (1995)
CLT 189 (FB), this Court, taking into consideration
Section 4 (1), held that Section 4 (1) imposes an absolute
bar which falls under the criteria of reasonable restriction
and has been introduced for the welfare of the general
public and the whole section has to be read completely
and not in isolation. Section 4 (1) is the spirit of the Act
and if allowed to be circumvented, the whole act loses its
force. Paragraphs 7, 8, 10, 12, 15, 16, 18 and 21 of the
said judgment, being relevant, are extracted hereunder:-
"7. The language employed in the proviso
is simply clear. It creates a total ban
against establishing a new saw mill/pit or
operating the existing saw mill/ pit in the
areas specified which can be described as,
prohibited zone. Sub-section (1) of Section 4
mandates against establishing or operating
a saw mill/pit except under the authority
and subject to the conditions of a licence
granted under the Act. In view of Section
24, all old licences come to an end. Clause
(i) of sub-section (2) of Section 4 carves out
an exception in respect of existing saw mill/
pit established by the Orissa Forest
Development Corporation Limited or by any
other agency of the Government prior to the
appointed day. As a result, that saw
mill/pit, even though within the prohibited
zone, can continue to operate. Exception is
only about existing saw mill/ pit, and even
that class of operator cannot establish a
new saw mill/ pit within the prohibited
area. Clause (ii) (a) of Section 4(2) provides
for continuation of the existing saw mill/pit
as a deemed licensee under the Act for a
period of three months from the appointed
day. This was clearly necessary as a
transitory measure to avoid hardship to the
operator and also to gain time to apply
fresh mind by the authorities. Section 6(2)
provides for an application to be made at
least one month before the expiry of the
period of three months from the appointed
day. Clause (ii)(b) of Section 4(2) provides
that if such application is pending, the
period of deemed licence shall be extended
till the disposal of the application under
Section 7(2). Section 7(2) provides for
disposal of the application under Section
6(1) within a period of three months from
the date of its receipt.
8. Before the Act was brought into force, the
saw mill/pit belonged to two categories -
one established beyond the prohibited zone
and the other established within the
prohibited zone. The former did not require
any licence, but the latter did. Section 4
created two classes of saw mills/pits, one
situated within the prohibited zone and the
other beyond that zone, Former class was
banned and the latter was regulated. Thus,
under the Act, even those saw mills/pits
which did not require licence were brought
in the net of the licensing provision. A
transitory provision was made for all
varieties of saw mills/pits for a period of
three months in the first instance and
thereafter till the disposal of the application
for licence under Section 6 in accordance
with Section 7(2). The assumption that
clause (ii)(b) of Section 4(2) applies even to
the mills/pits situated within the newly
created prohibited zone appears to be
erroneous. It will have to be borne in mind
that the non-obstante clause contained in
sub-section (2) was meant not only to apply
to the proviso to Section 4(1) but also to the
substantive provision. Clause (ii)(b) of
Section 4(2) was not meant for mills which
are undisputedly in the prohibited area.
One of the points to be considered while
granting licence is whether or not the saw
mill/pit is situated within the prohibited
zone. On that question, there may be a
dispute and if there is a dispute the matter
has to be adjudicated upon. Such
contingency was also required to be
provided for. Under the circumstances,
there is no scope for an interpretation that
Section 4(2)(ii)(b) provides for a discretion in
the officer to grant or refuse a licence to a
saw mill/pit even within a prohibited zone.
A discretion to grant or refuse licence in
accordance with the law very much exists,
but not in respect of cases governed by total
ban. If discretion even in cases covered by
the proviso is read to exist, the proviso is
rendered otiose. Normally, interpretation
leading to such result has to be avoided.
Moreover, the provision as a whole will
have to be read together and no part of it
can be read in isolation.
xxx xxx xxx
10. The language employed in the proviso
to Section 4(1) is plain and clear. It is
capable of only one interpretation. It also is
quite in consonance with the very object of
the new Act. In this context, taking aid of
any other principle of interpretation is
unnecessary. Section 4 will have to be read
as a whole and each part thereof will have
to be reconciled to the other. Hence clause
(ii)(b) to sub-section (2) or any other clause
cannot be read in isolation. Even if the
language of the statute in its ordinary
meaning and grammatical construction
leads to a manifest contradiction of the
apparent purpose of the enactment or to
absurdity presumably not intended,
construction may be put upon it which
modifies the meaning of the word and even
the structure of the sentence. All this is
permissible only when two constructions
are reasonably possible and not when only
one construction is possible. In that case,
the opinion of the Court, howsoever strong,
must yield to the language and it is Court's
duty to give effect to the inevitable result
and leave it to the legislature to amend or
alter the law.
xxx xxx xxx
12. The basic approach to the interpretation
of a statute has' been pithily put in the case
of Utkal Contractors and Joinery Pvt. Ltd. v.
State of Orissa, AIR 1987 SC 1454 thus
(para 9):-
"...... .A statute is best understood
if we know the reason for it. The
reason for a statute is the safest
guide to its interpretation. The
words of a statute take their colour
from the reason for it. How do we
discover the reason for a statute?
There are external and internal
aids. The external aids are
Statement of Objects and Reasons
when the Bill is presented to
Parliament, the reports of
Committees which preceded the
Bill and the reports of
Parliamentary Committees.
Occasional excursions into the
debates of Parliament are
permitted. Internal aids are the
preamble, the scheme and the
provisions of the Act. Having
discovered the reason for the
statute and so having set the sail
to the wind, the interpreter may
proceed ahead. No provision in the
statute and no word of the statute
may be construed in isolation.
Every provision and every word
must be looked at generally before
any provision or word is attempted
to be construed. The setting and
the pattern are important. It is
again important to remember that
Parliament does not waste its
breath unnecessarily. Just as
Parliament is not expected to use
unnecessary expressions.
Parliament is also not expected to
express itself unnecessarily. Even
as Parliament does not use any
word without meaning something,
Parliament does not legislate
where no legislation is called for.
Parliament cannot be assumed to
legislate for the sake of legislation;
nor can it be assumed to make
pointless legislation."
xxx xxx xxx
15. It is true that non-obstante clause is
usually used to indicate the overriding
effect, but it is not the rule of thumb.
Sometimes, proviso can be treated as a
substantive provision and a non-obstante
clause as another provision. But assuming
for a moment that Sub-section (2) has an
overriding effect, is on the whole sub-
section (I) and not merely on the proviso.
Moreover, the overriding effect can be only
to the extent of inconsistency and cannot
travel beyond that limit. We are unable to
notice any such inconsistency that would
obliterate the substantive provision of total
ban designedly created by the proviso to
Section 4(1).
16. This takes us to the question No. 2.
Fundamental right to practise any
profession or to carry on as occupation,
trade or business is specified under Article
19(1)(g) of the Constitution. But this right is
subject to limitations provided for in Sub-
article (6), which permits the State to make
a law imposing, in the interest of general
public, Reasonable restrictions on the
exercise of that right. The key words are
"reasonable restrictions" and "in the interest
of general public". What is reasonable
restriction and what is in the interest of
general public cannot be put in any strait
jacket formula. All depends upon the object
of the Act and its scheme. But the very
words "reasonable restrictions" connote
that they should not be arbitrary or of an
excessive nature beyond what is required
in the interest of public. Though there is a
presumption in favour of constitutionality of
a statute, determination of reasonableness
by legislature is not conclusive. It is subject
to judicial review. These are the broad
features and touchstones on the basis of
which the validity of an enactment has to
be tested. Considering the object sought to
be achieved and the legislative background
of the Act, it cannot be said that the total
prohibition of saw mill/pit in the prohibited
zone is not a reasonable restriction and is
not in public interest. On the face of it, it is
in public interest. No law can claim to be
perfect for all times to come. Passage of
time, new experiences etc. necessitate
changes. The extent of the changes
depends upon many factors. Forest is a
national wealth. It is being denuded by
illegal cutting. Considering the vast area
involved and their situation in the far off
places from the habitat area, it is becoming
increasingly difficult to control the illegal
activities. Earlier after experiemnt of
imposing condition of licence within 80
Kms. did not serve the purpose. More
drastic measure to achieve the same result
was thought of. The saw mills/pits in or
around the forest and forest area can be
and has been the recipients of the illegal
forest produce. They have great potentiality
of destroying the evidence of unauthorised
denuding of the forest. Physical control,
though possible theoretically is not always
practicable. If in this context a total ban has
been put on the establishment and
operation of the saw mills/pits within the
forest and a radius of 10 . Kms. therefrom,
there is no legal justification to make a
grievance. There has to be a balance
between an individual and public interest,
and in case of conflict, individual interest
must yield to public interest. In the whole
context, it cannot be said that this
restrictions, which is obviously in general
public interest, is unreasonable or
excessive. The measure is essentially
regulatory in nature and is neither
unguided, nor unreasonable, nor
discriminatory.
xxx xxx xxx
18. It was substituted that the right to
regulate does not include the right to
destroy. The business of saw mill and raw
pit has not been completely destroyed.
Beyond the prohibited zone, the business
can be carried on. There is no right to carry
on business at a particular spot.
xxx xxx xxx
21. Next submissions is that permitting
continuation of the saw mills/pits
established only by the Orissa Forest
Development Corporation or other agencies
of the Government is discriminatory. Now,
private persons on one hand and
Government or public bodies on the other
belong to two distinct classes. Giving
special facilities to the Government, its
agents and statutory corporations has been
recognised as valid and reasonable. In this
case, classification has clear nexus to the
object. Hence, the provisions cannot be
faulted even on that ground."
9.9. In Saraswati Saw Mills (supra), this Court
held that proviso to Section 4 (1) of the Act is not ultra
vires and, thereby, is not violative of Article 14 of the
Constitution of India.
9.10. In Sushila Saw Mill (supra), the apex Court
held that Article 19(1)(g) and 301 of the Constitution of
India is subjected to statutory regulation and Section 4 (1)
puts a total embargo on the right to carry out saw mill
operation within the prohibitory zone. The preservation of
forest is a matter of great public interest and demanded
for the total ban by legislation via the Act. The size and
contiguity of the district does not matter, if all the area of
the district falls under the prohibitory zone then no saw
mill be permitted to function in the said district and it
does not affect Articles 14 and 301 of the Constitution.
9.11. In T.N. Godavarman Thirumulpad (supra),
the apex Court issued detailed directions for the
sustainable use of forests and created its own monitoring
and implementation system through regional and State
level communities, regulating the felling, use and
movement of timber across the country in hope of
preserving the nation's forest. The apex Court examined
in detail all the aspects of the National Forest Policy, the
Forest Conservation Act, 1980, which was enacted with a
view to check further deforestation. It emphasized that the
word "forest" must be understood according to its
dictionary meaning of the term irrespective of the nature
of ownership and classification thereof. According to this
new broader definition, any forest thus defined, regardless
of ownership, would be subject to Section 2 of the Act.
Under new interpretation of forest land under Section 2 of
the Act, States could no longer de-reserve protected
forests for commercial or industrial (non-forestry) use
without permission.
9.12. A "Forest" having not been defined, the
meaning attached to forest has been considered by
various judgment of the apex Court, and some of which
has been taken up for adjudication of the present case.
9.13. In T.N. Godavarman v. Union of India,
AIR 1977 SC 1228, the apex Court, while considering
Section 1 of Forest Conservation Act, held that the word
"forest" covers all statutory recognized forests, whether
designated as reserved, protected or otherwise for the
purpose of Sec.2(i) of the Forest Conservation Act.
9.14. In Bhavani Tea and Produce Co. Ltd. v.
State of Kerala, (1991) 2 SCC 463, the apex Court held
that forest means a parcel of land on which trees have
been grown. Similar view has also been taken by the apex
Court in State of Kerala v. Pullangode Rubber and
Proudce Co. Ltd. (1999) 6 SCC 99.
9.15. In Indian Airlines Ltd. v. Samaresh
Bhownick, (1999) 6 SCC 99, the apex Court held that
meaning of forest must be understood according to its
dictionary meaning. It would, thus, appear that the
rubber plantation containing rubber trees, would be
regarded as a private forest the destruction of which was
sought to be prohibited by the 1949 Act.
9.16. In M.C. Meheta v. Union of India, (2004) 12
SCC 118 : AIR 2004 SC 4016, while considering Article 21
of the Constitution of India, the apex Court held that the
term 'forest' is to be understood in the dictionary sense
and also that any area regarded as a forest in government
accords, irrespective of ownership, would be a forest.
9.17. In B.L. Wadhera v. Union of India, (2002) 9
SCC 108 : AIR 2002 SC 1913, the apex Court held as
follows:
"Forest has not been defined under the Act but
the Supreme Court in T.N. Godavarman
Thirumulpad v. Union of India (1997) 2 SCC 267
has held that the word "forest" must be
understood according to its dictionary meaning.
It would cover all statutorily recognized forests
whether designatred as reserved, protected or
otherwise for the purposes of Section 2(i) of the
Forest Conservation Act. The term "forest land"
occurring in Section 2 will include not only the
forest as understood in the dictionary sense but
also any area regarded as forest in the
government record irrespective of the ownership.
The gifting of land, in the instate case, cannot in
any way, be termed to be for a forest purpose as
postulated by Section 2 of the Forest
Conservation Act."
9.18. In view of the meaning attached to the
word 'forest', it would cover all statutorily recognized
forests whether designated as reserved, protected or
otherwise for the purposes of Section 2(i) of the Forest
Conservation Act. Therefore, it is the pivotal duty and
responsibility of the State to protect the same through
their forest officials and for growing consciousness among
the citizens.
9.19. Therefore, to save the forest, by enacting the
provisions contained in Section 4 (1) of the Act along with
the proviso, there is a full restriction with regard to
operation of the Saw Mills in the State of Odisha within
prohibited zone of 10 KM radial distance from the
preserved forest. The aforesaid view of the Court, in the
case of T.N. Godavarman (supra), has been implemented
by the State Government, vide order dated 10.07.2009,
stating that there should be no Saw Mills within 10 kms
radial distance from the boundary of the forest area. The
relevant extracts of the orders passed by the apex Court
in T.N. Godavarman (supra) are quoted hereunder:-
Order dated 10.07.2009 :
"I.A. No.941 IN I.A. No. 754-755 WITH
I.ANo.777, 1131-1133, 1138-1146, 1148,
1184, 1272, 1361, 1579-1580 in W.P.(C)
/2007.
These matters relate to saw mills in
the State of Orissa. This Court had earlier
directed that there should be no saw mills
within 10kilometers from the boundary of
the forest area. Many of the saw mills in
the State of Orissa were closed down. The
applicants in I.A. Nos. 1579 and 1580 also
closed down their saw mills. We are told
that some of the saw mills had obtained
interim orders from the High Court but as
those are contrary to the direction given by
this Court, all those saw mills must also
be closed down immediately.
We are told that the Orissa Forest
Corporation has its own saw mills and
these mills are given on lease to private
parties. Such practices shall be stopped
forthwith.
The State of Orissa to file a fresh
affidavit to this effect within a period of
four weeks.
The State shall arrange to have an
industrial estate and take urgent steps to
this effect and shall also take steps to see
that there shall be appropriate amendment
to the Saw Mills Rules of 1991. It shall file
an affidavit to this effect."
"I.A. No.941 IN I.A. No. 754-755 WITH
I.ANo.777, 1131-1133, 1138-1146, 1148,
1184, 1272, 1361, 1579-1580 in W.P.(C)
/2007.
After this Court passed Order dated
10.07.2009 regarding closing of the mills
in the State of Orissa, a large number of
saw mills were closed. The State is of the
view that for the saw mills were closed.
The State is of the view that for the saw
mills appropriate location could not be
found as many of the areas are covered by
the definition of forest. Now the State has
proposed and want to set-up Industrial
Estate (s) for establishment of saw mills
for which they require amendment of the
Orissa Saw Mills and Saw Pits (Control)
Act, 1991.
In view of the statement made by
the learned counsel for the State of Orissa,
we direct that urgent steps may be taken
in this direction at the earliest.
Post on 20.11.2009."
9.20. The above direction given by the apex Court
resulted in closing down of majority of Saw Mills in the
State of Odisha. Consequentially, the affected Saw Mill
owners of the State approached the apex Court by filing
various interim applications seeking clarifications/
modifications/relaxation of the aforesaid directions.
Evaluating the contentions raised, the apex Court, vide
order dated 16.08.2010, directed for rehabilitation of
those closed down Saw Mills and thereby directed the
State of Odisha to make necessary arrangements to have
industrial estates and take appropriate steps in that
regard, if necessary, by making amendments to the
provisions of the Saw Mills Act and the Rules framed
thereunder. The relevant extract of the order dated
16.08.2010 passed by the apex Court is quoted below:-
"ORISSA SAW MILL MATTERS:
We have learned counsel for the parties as
well as Mr. P.S. Narasimha, learned
Amicus Curiae.
These applications relate to the saw
mills in the State of Orissa. This Court has
earlier directed that no saw mills should
be established within a radius of 10 kms.
from the boundary of the forest area.
Pursuant to the directions of the
Court many of the saw mills in the State of
Orissa were closed down. At the same
time, this Court having realised that those
saw mills which were closed down are
required to be rehabilitated, passed the
orders on 10.7.2009 directing the State of
Orissa to make necessary
arrangements to have industrial estates
and take appropriate steps in that regard,
if necessary, by making amendments to
the provisions of Orissa Saw Mills and
Saw Pit (Control) Act, 1991 (hereinafter
referred to as 'the Act) and the rules
framed thereunder.
The Court vide its order dated
10.7.2009 accordingly, directed the State
of Orissa to take urgent steps in that
regard and ensure appropriate
amendments to the said provisions of the
Act and the Rules made there under so
that the eligible amongst the closed saw
mills could be appropriately rehabilitated
in due course.
By another order dated 7.5.2010
based on the instructions submitted before
the Court, a direction was issued requiring
the State to take appropriate
decision concerning amendments to the
provisions of the said Act and Rules within
a period of six weeks there from. already
taken appropriate decision in the matter
and complied with the directions of this
Court. The necessary amendments to the
provisions of the Act are required to be
made by the Legislature.
In the circumstances, it would be
appropriate to direct the State of Orissa to
directions of this Court dated 10.7.2009
and 7.5.2010 and accordingly make and
carry implement the out necessary
amendments to the provisions of the Act
and Rules framed there under in order to
give effect rehabilitation plan. The
industrial estates have to be indentified so
that these applicants are appropriately
rehabilitated in terms of the directions
issued by this Court from time to time. The
exercise in this regard shall be completed
within a period of six months from today.
In such view of the matter, no adjudication
is required in these applications and they
are accordingly disposed of."
9.21. Now, in the name of rehabilitation, closed Saw
Mills are being permitted to be opened at industrial estate
area. The word "rehabilitation", as has been defined in
Volabulary.com, reads thus:-
"Rehabilitation is the act of restoring
something to its original state, like
the rehabilitation of the forest that had once
been cleared for use as an amusement park.
The noun rehabilitation comes from the Latin
prefix re-, meaning "again" and habitare,
meaning "make fit." When something falls in
to disrepair and needs to be restored to a
better condition, it needs rehabilitation."
Primary Meanings of rehabilitation
1.n. the treatment of physical disabilities
by massage and electrotherapy and
exercises.
2.n. the restoration of someone to a useful
place in society.
3.n. the conversion of wasteland into land
suitable for use of habitation or
cultivation."
9.22. In Collector of 24 Parganas v. Lalit Mohan
Mullick, AIR 1986 SC 622 : (1986) 2 SCC 138, the apex
Court held that by rehabilitation what is meant is not to
provide shelter alone. The real purpose of rehabilitation
can be achieved only if those who are sought to be
rehabilitated are provided with shelter, food and other
necessary amenities of life. Providing medical facilities
would come, within the concept of the word
'rehabilitation'.
9.23. In State of M.P. V. Narmada Bachao
Andolan, (2011) 7 SCC 639: AIR 2011 SC 1989, the apex
Court, keeping in view Sections 3 and 20 of the Land
Acquisition Act, 1894 and Article 300-A of the
Constitution of India, considered the "Rehabilitation" in
paragraphs-26, 27, 28 to 31, 52, 94, 96 and 93, 75, 88,
101 and 183 to the following effect:-
"It is desirable for the authority concerned to
ensure that as far as practicable persons
who had been living and carrying on
business or other activity on the land
acquired, if they so desire, and are willing to
purchase and comply with any requirement
of the authority or the local body, be given a
piece of land on the terms settled with due
regard to the price at which the land has
been acquired from them. However, the
State Government cannot be compelled to
provide alternate accommodation to the
oustees and it is for the authority concerned
to consider the desirability and feasibility of
providing alternative land considering the
facts and circumstances of each case. (Para
26)
In certain cases, the oustees are entitled
to rehabilitation. Rehabilitation is meant
only for those persons who have
been rendered destitute because of a loss of
residence or livelihood as a consequence of
land acquisition. The authorities must
explore the avenues of rehabilitation by way
of employment, housing, investment
opportunities, and identification of
alternative lands. For people whose lives
and livelihoods are intrinsically connected to
the land, the economic and cultural shift to a
market economy can be traumatic. The
fundamental right of the farmer to
cultivation is a part of right to livelihood.
"Agricultural land is the foundation for a
sense of security and freedom from fear.
Assured possession is a lasting source for
peace and prosperity." India being a
predominantly agricultural society, there is a
"strong linkage between the land and the
person's status in [the] social system".(Para
27)
However, in case of land acquisition,
"the plea of deprivation of right to livelihood
under Article 21 is unsustainable". Article
300-A is not only a constitutional right but
also a human right, but acquisition of land
does not violate any
constitutional/fundamental right of the
displaced persons. However, they are
entitled to resettlement and rehabilitation as
per the policy framed for the oustees of the
project concerned. (Paras 28 to 31)
In the process of development, the
State cannot be permitted to displace tribal
people, a vulnerable section of our society,
suffering from poverty and ignorance,
without taking appropriate remedial
measures of rehabilitation. The Court is not
oblivious of the fact that social and economic
reasons had caused disaffection, and thus,
the tribal areas are today in the grip of
extremism, as the tribal youths have become
easy prey to the extremists' propaganda.
(Para 52)
Rehabilitation on the other hand, is
restoration of the status of something lost,
displaced or even otherwise a grant to
secure a dignified mode of life to a person
who has nothing to sustain himself. This
concept, as against compensation and
property under Article 300-A, brings within
its fold the presence of the elements of
Article 21 of the Constitution of India. Those
who have been rendered destitute, have to
be assured a permanent source of basic
livelihood to sustain themselves. This
becomes necessary for the State when it
relates to the rehabilitation of the already
depressed classes like Scheduled Castes,
Scheduled Tribes and marginal farmers in
order to meet the requirements of social
justice.(Para-94)
The rehabilitation has to be done to
the extent of the displacement. The
rehabilitation is compensatory in nature
with a view to ensure that the oustee and
his family are at least restored to the status
that was existing on the date of the
commencement of the proceedings under the
1894 Act. Each State has a right to frame
the rehabilitation policy considering the
extent of its resources and other priorities.
One State is not bound if in a similar
situation, another State has accorded
additional facilities even over and above the
policy. (Para-96)
Compensation has to be understood in
relation to the right to property. The right of
the oustee is protected only to a limited
extent as enunciated in Article 300-A. The
tenure-holder is deprived of the property
only to the extent of land actually owned
and possessed by him. This is, therefore,
limited to the physical area of the property
and this area cannot get explained or
reduced by any fictional definition of the
word "family" when it comes to awarding
compensation. Compensation is awarded by
the authority of law under Article 300-A
read with the relevant statutory law of
compensation under any law made by the
legislature and for the time being in force,
only for the area acquired. Hence, major
sons could not have been made allotments
of land as separate family units. (Paras 93
and 75, 88 to 101 and 183"
Thereby, in compliance of the order passed by the apex
Court, the closed Saw Mills are to be opened at the
industrial estate area by way of rehabilitation.
9.24. In compliance to the direction given by the apex
Court, the State Government implemented the provisions
contained in Section 4 of the Act, 1991 and added 3rd
proviso, which has been inserted vide O.A. No. 2 of 2011
published in the Gazette Notification No.208 dated
25.01.2011, where power has been vested on the State
Government that the State Government may identify
industrial estates within such area not exceeding two in
one district and shall, subject to compliance of the
guidelines issued from time to time, allow the saw mills or
saw pits for their establishment, relocation and
functioning in such industrial estate.
9.25. Therefore, in the case at hand, the Saw Mills,
which were closed by virtue of the preliminary orders of
the apex Court issued in T.N.Godavarman case (supra),
have been rehabilitated and established inside the
identified industrial estate, in terms of the third proviso to
Section 4 (1) of the Saw Mills Act leading to establishment
of the two saw mills (two being the maximum mills
permissible in one district).
9.26. Guidelines have also been issued by the
Government for establishment, relocation and functioning
of Saw Mills, which have been published on 30.07.2011 to
the following effect:-
"Guidelines for Establishment, Relocation
and functioning of Saw Mills
( The 30th July 2011)
No.-13891_ 10F-legal -3/2011-F& E Guidelines
for establishment relocation and functioning of
Saw Mills in the identified industrial estates of
the State is indicated below as per the
provisions contained in Orissa Saw Mills and
Saw Pits (Control) Act, 1991 and Orissa Saw
Mills and Saw Pits ( Control) Amendment Act,
2010.
Background
Prior to 1980, the control of timber in transit or
possession was regulated by the provision of
Section 45 of the Orissa Forest Act, 1972.
Under the said section of the Act, the Orussa
Forest Saw Pits and Saw mills (Control) Rules,
1980 was brought in during 1980 which
prohibited establishment of Saw Mills inside
the forest land within 80kms. From it's
boundary without a valid license. In 1991, the
Orissa Saw Mill and Saw Pits (Control) Act,
1991 was rought in for regulation of Saw Mill
and Saw Pits in the State. The Act came into
force on the 13th December 1991 after its
publication in the Orissa Gazette. To facilitate
implementation of the Act, Orissa Saw Mills
and Saw Pits (Control) Rules, 1993 were
framed which came into effect from the 18th
November 1993. As per the Orissa Saw Pits
and Saw Mills (Control) Rules, 1980, 427 Saw
Mills existed in the State till 1991. After
promulgation of the Saw Mills Act, 1991 and
Rules, 1993 a further 132 number of Saw Mills
were given licence based on the criteria of
"more than 10 kms. distance" by road from the
forest boundary. Thus the total number of
licence holding Saw Mills in the State became
559 till 2002. Hon'ble High Court of Orissa in
OJC No. 11164/1996 (Maa Mangala Saw Mill
vrs. State & others) clarified that 10 kms.
Distance from boundary of the nearest forest is
to be the radial distance (as crow-flies). As per
this clarification of the Hon'ble High Court,
radial distance criteria was followed in
implementation of the Saw Mills and Saw Pits
(Control) Act, 1991 and most of the Saw Mills
were closed. On the 2nd July 2008 only 24
Saw Mills existed in the State. After
amendment in the Saw Mill Act during 2007,
Orissa Forest Development Corporation started
operating Saw Mills on contract basis and the
total number of Saw Mills increased to 41.
However, after the order of Hon'ble Supreme
Court dated the 10th July 2009, 34 Saw Mills
were closed and only 7 Saw Mills are
functioning at present. As per the orders of
Hon'ble Supreme Court, Orissa Saw Mills &
Saw Pits, Amendment Act, 2010 has been
enacted which allows establishment, relocation
and functioning of Saw Mills in two identified
industrial estates (maximum two in one district)
subject to compliance of the guidelines issued
by the State Government from time to time.
Hence, it has become necessary to formulate
the guidelines for establishment, relocation and
functioning of Saw Mills closed due to
enforcement Of the Saw Mills & Saw Pits
(Control) Act, 1991 and subsequent orders of
the Supreme Court.
THE GUIDELINES
Identification of Industrial Estate
1. The Industries Department shall identify
industrial estates (maximum two in each
district) for the purpose of establishment,
relocation and functioning of Saw Mills in those
industrial estates, the Department shall also
indicate the sheds/ area available for
establishment, relocation and functioning of
Saw Mills.
2. Preference may be given to the industrial
estate which is closer to the office of D.F.O
/Forest Ranger/ Forester.
Eligibility for establishment, relocation
and functioning of Saw Mills in identified
industrial estate.
3. The eligibility of Saw Mills to be
rehabilitated in the identified industrial estate
will be determined by the following criteria:-
a) Priority will be given to Saw Mills in
the State functioning for a longer
period on the strength of valid
license.
b) Saw Mills which were functioning
with no-offence record, will only be
rehabilitated. In case the Saw Mills
have been booked for committing
offences, first the offences need to
be condoned by the Government
seeing their gravity for considering
them for rehabilitation in the
identified industrial estate.
c) A list of Saw Mills having no record
of offence against them will be
prepared as per their seniority
basing on duration of functioning on
the strength of valid license. Such a
list will be prepared by the
P.C.C.D., Orissa.
d) Saw Mills having modern
technology and equipment will be
preferred.
4. The eligibility list of Saw Mills as per
criteria narrated at Point 4 above will be put on
the Notice board of the office of the P.C.C.F.,
Orissa and the Website of Forest &
Environment Department. The eligible Saw
Mills owners will be required to furnish their
willingness for rehabilitation in the Industrial
Estate giving three choices of industrial estates,
to the P.C.C.F., Orissa by a specified date in
sealed cover. The option exercised will be final.
5. The shed/land allotted to Saw Mills for
establishment or relocation should be able to
accommodate at least one horizontal bandsaw,
one vertical bandsaw, one cross-cut-saw and
other accessories.
6. Basing on the option exercised within
the stipulated period, the decision regarding
rehabilitation of the eligible Saw Mills will be
taken up by a Committee headed by P.C.C.F.,
Orissa. The decision of the Committee will be
final. The decision of the Committee will be
communicated to the eligible Saw Mills owners
and forest field functionaries concerned. A copy
of the decision will also be submitted to the
Forest & Environment Department and
Industries Department for necessary action at
their end.
7. On receipt of the decision of the Committee
headed by the P.C.C.F., Orissa, Industries
Department will take steps for allotment of
shed/land in different industrial estates by the
authority competent to make such allotment.
8. On allotment of shed/land in the industrial
estate, the Saw Mills owners
will have to apply for license to the concerned
D.F.O., under Saw Mills Act, enclosing a sketch
of shed/land allotted, equipment to be installed
etc. within 15(Fifteen) days.
9. The Cone The concerned D.F.O. shall
forward the said applications with his
recommendation to the P.C.C.F Orissa within
15(Fifteen) days of its receipt. The P.C.C.F,
Orissa, after examining the content will allow
rehabilitation of Saw Mills. Then the D.F.O
concerned will issue license to the applicant for
the Saw Mills.
10. The day-to-day functioning (operation) and
control of Saw Mills would be done as per the
existing provisions of Orissa Saw Mills & Saw
Pits ( Control) Act, 1991 and rules framed
thereunder in 1993."
9.27. In terms of the provisions contained under
Section 4(1) of the Act, 1991 read with the guidelines for
establishment, relocation and functioning of saw mills,
the above named two Saw Mills were established within
Chancha industrial estate by the Industries Department
vide gazette notification dated 04.08.2009. As such, it
qualifies the parameters laid under the guidelines for
establishment, relocation and functioning of saw mills,
vide notification no.13891-10F-Legal/3/2011 dated
30.07.2011. The factors for identification are two folds,
i.e., (i) having requisite sheds/area for relocation for two
saw mills (i.e., the maximum no. permissible); and (ii) the
estate being closer to the office of DFO/Forest
Ranger/Forester.
In view of the discussions made above, issue
no.(ii) is answered in affirmative.
Issue No.(iii)
10. So far as this issue is concerned, it has been
vehemently contended that opposite parties no.6 and 7
have transferred the management of their Saw Mills to
opposite party no.8 and such contention has been raised
as because opposite parties no.6 and 7 have relied upon
the mobile number, which is stated to have been used by
opposite party no.8. But, as it appears, opposite parties
no.6 and 7, who are proprietors of the Saw Mills, are in
charge of all the affairs and business, as is evident from
the statutory forms, i.e., Form-D, E and F, which are
stock register, sawing and sawn timber account filed every
day and month wise extract of receipt and disposal of logs
and sawn wood respectively. Furthermore, pursuant to a
petition dated 17.04.2023, the Asst. Conservator of Forest
(Enforcement, Baripada, Division), on causing an enquiry,
found that opposite party no.8 has been authorized by the
proprietors of the Saw Mills to receive any type of letters,
documents and give verification on their behalf in their
absence as well as represent them before the respective
authorities. Thereby, opposite parties no.6 and 7, who are
proprietors of the Saw Mills, have been regularly filing
returns under the statutory forms and have at no point of
time violated the provisions of law and the terms of the
license. The DFO, Baripada, vide letter dated 26.06.2023,
also caused inquiry for effective monitoring and
functioning of the Saw Mills in consonance with the
statutory provisions and rules. As such, the proprietors
have also taken all measures and stood in strict
compliance with the said instructions. Therefore, the
allegation made that opposite parties no.6 and 7, being
the proprietors of the respective Saw Mills, have
authorized opposite party no.8 to manage the said Saw
Mills, has no legs to stand. The contention to that extent
cannot be sustained in the eye of law and issue no.(iii) is
answered accordingly.
Issue No.(iv)
11. The petitioners have not produced any
materials before this Court to indicate that opposite
parties no.6 and 7 are involved in any kind of illegal
activities of timber business. On the other hand, as it
reveals from the materials available on record, on receipt
of the representation dated 15.05.2023, the Asst.
Conservator Forest (Enforcement) conducted a full-fledged
enquiry and reported on 04.07.2023 that the allegations
regarding illegal sawing of timbers is without any basis.
Furthermore, on causing enquiry to the said petition, the
Asst. Conservator Forest (Enforcement) conducted a
surprise visit by personally inspecting the premises on
11.07.2023 and undertook verification of the stock
registers and monthly returns and consequentially found
that the Saw Mills were running within monthly capacity
as per the license. Therefore, in absence of any materials
before this Court, no conclusion can be drawn that the
Saw Mills are involved in illegal timber business. The
issue no.(iv) is answered accordingly.
12. Before parting with the case, this Court deems
it apposite to make a mention that in the name of
rehabilitation of closed saw mills, the State authorities
including the forest officers, cannot and should not act
detrimental to the interest of the public at large, which
affects the public policy and very well come in realm of
judicial review. Therefore, the forest department has to
ensure that in the name of rehabilitation of closed saw
mills, the forest resources made available should not be
destroyed. In the event of any destruction thereof, the
authorities, who are in the helm of affairs, should be put
to task, because the human habitation are now facing
severe crisis for their survival in a healthy environment,
which should not be jeopardized further in any manner.
In the interest of justice, equity and fair-play, both the
human habitation and the forest growth simultaneously
should have a healthy atmosphere and environment, as
because any damage caused to the forest resources would
definitely jeopardize human habitation.
13. This Court hopes and trusts, the committee
which has been constituted should take care of the above
mentioned aspects, when we are facing acute pollution of
air and water. The burning example before this Court is
New Delhi, capital of India, suffers from acute air
pollution. Had there been enough growth of forest, this air
pollution could have been averted. Similarly, the State of
Orissa, mainly its capital, Bhubaneswar is heading
towards similar problem which is faced in New Delhi, may
be within a short span of time. Therefore, now time has
come for all the stake holders to act strictly in consonance
with the provisions of law to give better environment for
survival of human habitation, and that to allow human
beings to live with dignity in consonance with Article 21 of
the Constitution of India. The primary objective is survival
of human habitation, which should not be lost sight of,
while considering the rehabilitation of the closed saw mills
and also notification issued for consideration of the State
Level Committee for taking decision regarding grant of
license/ permission to the wood based industries subject
to compliance of the prescribed guidelines and procedures
issued by Ministry of Environment, Forest and Climate
Change, Government of India, New Delhi.
14. This Court, before closing the case, would like
to endorse its appreciation regarding the assistance
rendered by the two young counsels of this Bar, namely,
Mr. S.S. Bhuyan, learned counsel appearing for the
petitioners and Mr. Abhishekh Dash, learned counsel
appearing for opposite parties no. 6, 7 and 8.
15. In the result, the writ petition merits no
consideration and the same is hereby dismissed. However,
there shall be no order as to costs.
..................................
DR. B.R. SARANGI,
ACTING CHIEF JUSTICE
M.S. RAMAN, J. I agree.
..................................
M.S. RAMAN,
JUDGE
Orissa High Court, Cuttack
Digitally Signed The 15th December, 2023, Ashok
Signed by: ASHOK KUMAR JAGADEB
MOHAPATRA
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 15-Dec-2023 18:01:40
