ORDER
1. This writ petition has been filed for quashing the order dated 6th April, 2005 which has been passed by the Regional Director, Samajik Vaniki Van Prabhag, Fatehpur (hereinafter referred to as the 'Regional Director') rejecting the application filed by the petitioner for grant of Saw Mill licence. The said order was passed pursuant to the directions issued by this Court on 21st January, 2005 in Writ Petition No. 27395 of 2004.
2. The facts stated in the petition reveal that earlier the Saw Mill belonged to Sri Ram Agarwal who had been granted a licence to run saw mill. The saw mill was sold to one Sri Narendra Kumar Singh on 2nd February, 1989 and thereafter it was sold by Sri Narendra Kumar Singh to the petitioner for a consideration of Rs. 25,000/-. The petitioner then submitted an application dated 2nd April, 1989 to the Range Officer for transfer of the licence in his favour and for permission to deposit the renewal licence fee. It appears on the basis of the aforesaid application, the petitioner deposited the licence fee of Rs. 1,000/- in 1990, 1991 and 1992. The licence was, however, not renewed and, therefore, the petitioner filed a writ petition in this Court which was disposed of on 20th October, 2003 with a direction to decide the representation of the petitioner. The application of the petitioner for renewal of the licence was rejected and this was challenged by the petitioner by filing a writ petition being Writ Petition No. 12350 of 2004 which was disposed of on 25th March, 2004 with a direction that the application filed by the petitioner for grant of saw mill licence shall be considered afresh in accordance with law. By the order dated 24th June, 2004 the application was again rejected. Feeling aggrieved, the petitioner filed yet another Writ Petition No. 27395 of 2004. The Court by means of the judgment and order dated 28th January, 2005 set aside the order dated 24th June, 2004 and remanded the matter back to the Regional Director to decide it afresh in accordance with law. Pursuant to the aforesaid directions of this Court, the matter has been considered at length by the Regional Director in the order dated 6th April, 2005 which has been impugned in the present petition.
3. We have heard the petitioner in person and the learned Standing Counsel appearing for the respondents and have perused the material available on record.
4. The petitioner in person has assailed the order dated 6th April, 2005 contending that once the petitioner was permitted to deposit the licence fee, the respondents could not have refused the grant of the licence and in any view of the matter, the order of the Supreme Court has not been correctly interpreted by the Regional Director. Learned Standing Counsel on the other hand has supported the impugned order and has submitted that there is no infirmity as it is based upon the orders issued by the Supreme Court from time to time.
5. We have carefully considered the submissions advanced by the parties. Before examining the rival contentions, we consider it proper to refer to the Rules framed by the State Government and to the orders passed by the Supreme Court from time to time with regard to the grant of licence to the Saw Mills.
6. The State Government has framed the "Uttar Pradesh Establishment and Regulation of Saw-mills Rules, 1978 (hereinafter referred to as the 'Rules'). Rule 2 defines 'Saw-mills' to mean and include any mechanical device whether operating with electric power, fuel power or man-power for the purpose of cutting, sawing or converting, timber and wood into pieces or the like acts. Rule 3 provides that no person shall establish, erect or operate any saw-mill or machinery for converting or cutting timber and wood without obtaining a licence from the Divisional Forest Officer concerned. Under Rule 4 an application has to be submitted by person desiring to establish, erect or operate any existing Saw Mill to the Divisional Forest Officer concerned for obtaining a licence in the form given in the Schedule I appended to the Rules. Rule 5 deals with grant of licence by the Divisional Forest Officer after satisfying himself with regard to the factors enumerated. Rule 7 deals with renewal of licence.
7. The matter regarding protection and conservation of forest was considered by the Supreme Court in T N. Godavarman Thirumulkpad v. Union of India, and we reproduce the relevant general directions issued by the Supreme Court contained in paragraph 5 of the judgment.
"1. In view of the meaning of the word "forest" in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any "forest". In accordance with Section 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind including veneer or plywood mills, and mining of any mineral are non-forest purposes and are, therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity is prima facie violation of the provisions of the Forest Conservation Act, 1980. Every State Government must promptly ensure total cessation of all such activities forthwith.
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3. The felling of trees in all forests is to remain suspended except in accordance with the working plans of the State Governments, as approved by the Central Government. In the absence of any working plan in any particular State, such as Arunachal Pradesh, where the permit system exists, the felling under the permits can be done only by the Forest Department of the State Government or the State Forest Corporation.
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6. Each State Government should within two months, file a report regarding:
(i) the number of saw mills, veneer and plywood mills actually operating within the State, with particulars of their real ownership;
(ii) the licensed and actual capacity of these mills for stock and sawing;
(iii) their proximity to the nearest forest; (iv) their source of timber.
7. Each State Government should constitute within one month, an Expert Committee to assess :
(i) the sustainable capacity of the forest of the State qua saw mills and timber based industry;
(ii) the number of existing saw mills which can safely be sustained in the State;
(iii) the optimum distance from the forest, qua that State, at which the saw mill should be located."
8. Certain minor variations were made in the aforesaid order and the same are T.N. Godavarman Thirumulkpad v. Union of India and Ors. and are as follows :-- (Para 4) "All unlicensed saw mills, veneer and plywood industries in the State of Maharashtra and the State of Uttar Pradesh are to be closed forthwith and the State Government would not remove or relax the condition of grant of permission/licence for the opening of any such saw mill, veneer and plywood industry and it shall also not grant any fresh permission/licence for this purpose. The Chief Secretary of the State will ensure strict compliance of this direction and file a compliance report within two weeks".
9. Thereafter certain applications were filed in the aforesaid case of T. N. Godavarman Thirumulkpad in which directions were issued. These are and the relevant direction is reproduced below :--
"After hearing the learned amicus curiae, the learned Attorney General and the other learned counsel, we direct as under :
A. In the State of Uttar Pradesh the following is permitted--
1. Principal chief Conservator of Forest (PCCF) may, on a case-to-case basis, consider grant of permission to an existing licensed saw-mill to relocate itself, provided that the relocated site is not within 10 Kms of any existing forest."
10. In the meantime the State Government made various amendments in the Rules in the year 1998. The definition of 'Saw mill' was amended to mean and include any mechanical device whether operating with electric power, fuel power or man-power for the purpose of cutting, sawing or converting, timber and wood into pieces or the like acts, but would not include such mechanical device whose engine power is upto 3 H. P.
11. The amended rules, 5, 6 and 7 which deal with grant of licence, period of validity of licence and renewal of licence are as follows :--
"5. Grant of licence.-- On receipt of an application under Rule 4 the Divisional Forest Officer shall acknowledge the same and thereafter shall make such enquiries as he may deem fit and after satisfying himself with regard to following factors, grant the licence in the form given in Schedule II appended to these rules :--
(i) that the required quantity of timber through legitimate means would be available at the proposed venue of the saw-mill without causing any damage to the tree-growth in the forests under the control of the government and the adjacent rural areas;
(ii) that the applicant has acquired or is in a position to acquire necessary area for erecting and running a saw mill in accordance with the conditions specified in the licence;
(iii) that necessary machinery, power etc., is available or is likely to be available to the applicant;
(iv) that the applicant has obtained a "No Objection Certificate"
In case the Divisional Forest Officer is not satisfied he may reject the application within sixty days of its receipt:
Provided that in case the said application is not disposed of within sixty days from the date of the receipt of the application by the Divisional Forest Officer, the licence shall be deemed to have been granted to the applicant under this rule on the terms and conditions as laid down in Schedule II appended to these rules with effect from the expiry of the said sixty days and in that event the acknowledgment, shall be adequate proof of the licence.
Provided further that the aforesaid proviso shall not apply to saw mills situated within ten kilometre area of any existing forest.
Explanation.-- In this rule existing forest shall not include trees situated on either side of the roads and the railway tracks.
"6. Period of validity of licence.-- Every licence granted under Rule 5 or renewed under Rule 7 shall remain valid for such period not exceeding three years from the date of issue or renewal as may be specified in the licence:
Provided that, in case of a licence referred to in the proviso to Rule 5 or Rule 7 the period of validity shall be three years."
"7. Renewal of licence.-- On an application made to the Divisional Forest Officer concerned for renewal of the licence granted under Rule, 5 he may renew the same indicating thereon the period for which it has been renewed. The renewal application for licence shall be disposed of within sixty days of its receipt:
Provided that in case the application is not disposed of within sixty days, from the date of the receipt of the application by the Divisional Forest Officer, the licence shall be deemed to have been renewed for a period of three years :
Provided further that the aforesaid proviso shall not apply to saw mills situated within ten kilometers of any existing forest.
Explanation :-- In this rule existing forest shall not include trees situated on either side of the roads and the railway tracks.
Failure to get the licence renewed before the expiry of date will make the licensee liable to punishment in accordance with Section 77 of the Indian Forest Act, 1927 for operating the saw mills without licence."
12. The aforesaid Rules along with the 1998 amendments came up for consideration before the Supreme Court in the aforesaid case of T. N. Godavarman Thirumulkpad on 30th April, 2002 and the relevant portion of the order is quoted below:--
"Our attention has been drawn to the rules which have been amended by the State of Uttar Pradesh on 6th June, 1998 permitting saw mills having engine power of 3 HP not to have a licence. This amendment was made after this Court's order dated 4th March, 1997 directing closure of all unlicensed saw mill in the State of Uttar Pradesh and Maharashtra. It is quite obvious that with a view to circumvent this Court's order dated 4th March, 1997 the State of Uttar Pradesh has used the device of changing the law. That this was done with view to help the saw mills, is quite evident from the affidavit of Shri Anup Malik Forest Utilization Officer, U. P. Lucknow who in paragraph 4 of the affidavits states that three saw mills, namely M/s. Punjab Saw Mill, M/s. Rana Saw Mill and M/s. Nur Handicraft having saw mills of 15 HP, 10 HP, and 8 HP respectively within the municipal limits of Saharanpur were sealed pursuant to the orders of this Court dated 4th March, 1997. This affidavit further goes to show that presently these very saw mills are in operation using power less than 3 HP. We refuse to believe that the saw mills which were having 15 HP, 10 HP, and 8 HP, would today be functioning using less than 3 HP. It is only the State of Uttar Pradesh which can be fallible, willingly, or unwillingly, to accept this. We, therefore, set aside the amendment of the U. P. Establishment and Regulation of Saw Mills Rules 1978 which was effected on 26th June, 1998 insofar as it exempts saw mills using mechanical devices with the use of power up to 3 HP from obtaining a licence. As a result of the order passed today each and every saw mill running in the State of Uttar Pradesh would require a licence, whether the saw mill is running with the aid of power or otherwise. The rule which provides for deemed licence in the event of the application for the grant of licence not being dealt with contained in the Saw Mills Rules, being Rule 7, is also held to be contrary to the letter and spirit of the Indian Forest Act, and the order of this Court and is accordingly set aside."
13. On 9th May, 2002 the Supreme Court issued further directions in the aforesaid case of T. N. Godavarman Thirumulkpad and Writ Petition No. 171 of 1996 and the same are as follows :--
"After hearing the learned Amicus Curie, counsel for the parties and taking into consideration the suggestions placed before us by the learned Attorney General, we pass the following order :--
"(1) It is submitted that till the Central Government constitutes a statutory agency as contemplated by Section 3 of the environment (Protection) Act, 1986 it is necessary and expedient that an authority be constituted at the National level to be called Central Empowered Committee (hereinafter the 'Empowered Committee') for monitoring of implementation of Hon'ble Court's order and to place the non compliance cases before it, including in respect of encroachment removals, implementations of working plans, Compensatory afforestation, plantations and other conservation issues."
14. By a notification dated 3rd June, 2002 the Government constituted the Central Empowered Committee and the powers and functions were defined as follows :--
"The power and functions of the Committee as per the order of the Hon'ble Supreme Court of India are as under :--
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"(3) Pending interlocutory application in these two writ petitions as well as the report and affidavit filed by the State in response to the orders made by the Court shall be examined by the Committee, and their recommendations will be placed before Hon'ble Court for orders.
(4) Any individual having any grievance against steps taken by the Government or any other Authority in purported compliance with the order passed by this Hon'ble Court will be at liberty to move the Committee for seeking suitable relief. The Committee may dispose of such applications in conformity with the orders passed by Hon'ble Court. Any application which cannot be appropriately disposed of by the Committee may be referred by it to this Hon'ble Court.
(5) The Committee shall have the power to:--
(a) Call for any documents from any persons of the Government of the Union or the State or any other official.
(b) Summon any person and receive evidence from such person on oath either on affidavit or otherwise.
(c) Seek assistance/presence of any person(s) official(s) required by it in relation to its work."
15. The aforesaid Central Empowered Committee considered the cases of those saw mills where the licence fee had been deposited prior to the restrictions placed by the Supreme Court in its order dated 4th March, 1997 but the licence to operate the Saw-mill had not been issued. It submitted its report dated 3rd October, 2002 and the relevant portion of the report is as follows :--
"Further as per the Uttar Pradesh Establishments and Regulations of Saw Mills Rules, provides that on application being made, the Divisional Forest Officer is empowered to grant the licence for any Saw Mill only after satisfying himself that the required quantity of timber is available for the Saw Mill through legal sources besides a No Objection Certificate will have to be obtained by the applicant Saw Mill from the concerned District Magistrate. The documents made available do not establish fulfilment of this vital requirement. Mere deposition money for registration does not mean that a valid licence for running of the Saw Mill has been granted by the Competent Authority.
It is, therefore, concluded that the applicant Saw Mill were not having valid licence for running the Mill on the relevant date i.e. 4-3-1997 and were required to be closed forthwith as per the order dated 4-3-1997".
16. The matter was again considered by the Supreme Court on 29/30th October, 2002 and the following order was passed.
"No State or Union Territory shall permit any unlicensed Saw Mills, veneer, plywood industry to operate and they are directed to close all such unlicensed unit forthwith. No State Government or Union Territory will permit the opening of any Saw Mills, veneer or plywood industry without prior permission of the Central Empowered Committee. The Chief Secretary of each State will ensure strict compliance of this direction. There shall also be no relaxation of rules with regard of licence without previous concurrence of Central Empowered Committee. It shall be open to apply to this Court for relaxation and or appropriate modification of orders que plantations or grant of licenses."
17. Despite the aforesaid directions contained in the order dated 29/30th October, 2002 certain licences were granted to five Saw Mills by the Divisional Forest Officer, Puri Division, Khurda, Orissa on 23rd December, 2002. In these matter the Supreme Court issued suo motu contempt notice. The following order was passed by the Supreme Court on 19th December, 2003 in the said matter :--
"The respondent has tried to overreach this Court by violating the order dated 30th October, 2002 and is clearly guilty of contempt of Court. Having regard to the facts abovenoted, we are unable to accept the apology tendered by the respondent. Having bestowed anxious considerations on the aspect of punishment, considering that respondent had joined as DFO only few days before grant of licences and it to being a case of first lapse on his part, on the facts of the case, in our view the ends of justice would be met by reprimanding the respondent and by issue of a warning to him so that he will be careful in future so as not to repeat such an act and also by imposing on him heavy amount which can be utilized for protection of environments. We order accordingly and impose a cost of Rs. 50,000/-, which shall be deposited by the respondent in the Registry within four weeks. The suo motu petition is disposed of accordingly."
18. It is upon a consideration of the aforesaid provision of the rules and the orders of the Supreme Court that the Regional Director has rejected the application of the petitioner for grant of licence. It has been noticed that the licence had never been issued in favour of the petitioner prior to 4th March, 1997 but even without the issue of such licence the petitioner had been depositing the licence fee. It has further been noticed that the Central Empowered Committee in its recommendations placed before the Supreme Court had made it clear that the licence cannot be granted merely upon deposit of the licence fee and in such circumstances, the petitioner cannot take the benefit of the decision given by this Court in Nand Lal v. State of U. P., 2002 All LJ 1255 : (AIR 2002 All 141). The Regional Director has also referred to the directions issued by the Supreme Court that no State Government or the Union of India shall permit the opening of saw mill without prior permission of the Central Empowered Committee. In such circumstances the Regional Director has concluded that the licence could not be issued but it has been observed that in case the petitioner desired he could place his application before the Central Empowered Committee.
19. It is this order dated 6th April, 2005 of the Regional Director which has been challenged in this writ petition. The petitioner in person has placed reliance upon the decision of the Supreme Court in the case of Jawahar Lal Sharma v. Divisional Forest Officer, U. P., and upon the decision of this Court in Nand Lal v. State of U. P., 2002 All LJ 1255 : (AIR 2002 All 141).
20. In the case of Jawahar Lal Sharma : (supra) the Supreme Court in paragraph 6 of the said decision observed as follows :--
"No order or direction made by the Supreme Court of India to the effect that even existing licences shall not be renewed, has been brought to our notice. On the contrary the learned counsel for the appellants has invited our attention to orders dated 24-1-2000 passed in Civil Misc. Writ Petition No. 991/2000, Gyaneshwar Prasad Singh v. Van Sanrakshak, Varanasi Vritya, Varanasi and Ors. order dated 19-2-2000 in Civil Misc. Writ Petition No. 9148 of 2000, Kanwal Deen Chauhan and Ors. v. Conservator of Forests and Ors., order dated 31-3-2000 in Civil Misc. Writ Petition No. 15002/2000, Vishwa Bhandar Saw Mills v. Divisional Forest Officer and Anr., wherein having noticed the directions made by this Court in T.N. Godavaraman Thirumulkpad v. Union of India, , the High Court of Allahabad has, in similar circumstances quashed the orders passed by the respondents and directed that on completing all the necessary formalities by the petitioners therein and depositing the licence renewal fee for all the previous years as well as the current years, licences to run the saw mill in favour of the petitioner therein shall be granted of there be no legal impediment. The learned counsel submitted that there is no reason why the same High Court should not have taken a similar view in the cases of these appellants. We find merit in the submission of the learned counsel."
21. It is clear from the observations made above that the subsequent orders/directions of the Supreme Court were not placed before the Court. We have referred to the orders/directions of the Supreme Court which make it mandatory for the licensee to place his application before the Central Empowered Committee for grant of licence.
22. In the case of Nand Lal (AIR 2002 All 141) (supra) the Court observed as follows :--(Para 21) "The Apex Court was only clarifying that no fresh licence should be granted in violation of the provisions of the Forest Conservation Act, 1980. It did not prohibit that licence to operate saw mills should not be granted on any condition."
23. The decision of this Court in the case of Nand Lal (AIR 2002 All 141) have also not taken note of the subsequent orders/directions of the Supreme Court in the case of T. N. Godavaraman Thirumulkapad (supra).
24. In the present case the licence of the saw mill of the petitioner had not been renewed prior to 4th March, 1997. The directions of the Supreme Court make it obligatory in such cases, for the applicants to place their application before the Central Empowered Committee. This is precisely what has been observed in the order of the Regional Director.
25. Such being the position, there is no infirmity in the order dated 6th April, 2005 passed by the Regional Director rejecting the application filed by the petitioner for grant of saw mill license.
The writ petition is, accordingly, dismissed.