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Mayur Kattha Industries vs State Of U.P. And Ors.

High Court Of Judicature at Allahabad|30 January, 2002

JUDGMENT / ORDER

JUDGMENT Sudhir Narain, J.
1. The petitioner seeks writ of certiorari quashing the order dated 19.6.2001 rejecting the prayer of the petitioner to run its unit for manufacturing kattha and grant the licence under the provision of the Uttar Pradesh Establishment and Regulation of Saw Mills Rules, 1978 (in short the Rules, 1978).
2. The version of the petitioner is that it manufactures kattha by processing and cutting khair-wood. It purchases khair-wood from the State of Uttar Pradesh and Madhya Pradesh in auctions held by the Government Agencies. Respondent No. 3 started interfering in the manufacturing of kattha by the petitioner on the ground that the petitioner has no licence for running saw-mill in accordance with the provisions of Uttar Pradesh Establishment and Regulation of Saw Mills Rules, 1978. The petitioner is alleged to have deposited licence fee for the year 1986 to 1995 under the U.P. Saw Mills Rules, 1978 and further deposited licence fee for the period 1996 to 1999. The licence fee for the year 2000-2001 was not however, accepted by the officials of the Forest Department. It made representation on 10.3.2001 to respondent No. 3 in this respect. The representation has been rejected by the impugned order dated 19.6.2001.
3. We have heard Sri N. K. Chaturvedi, learned counsel for the petitioner, and Sri H.R. Misra, learned standing counsel for the respondents.
4. The learned counsel for the petitioner submitted that the unit of the petitioner is registered as a small scale industry with the Director of Industries, Government of Uttar Pradesh. It uses khair-wood for manufacturing kattha and in the process of manufacturing kattha, cutting machine is used for cutting khair-wood. H is not timber in its final product and it is not liable to obtain licence under the rules and in any case it had applied for the licence and deposited licence fee but it has not been granted.
5. Respondent No. 2 found that the unit of the petitioner is not a small one. On a routine checking of the unit of the petitioner on 18.4.2001 about 1000 quintals of khair-wood, 4 quintals of kattha and 5 quintals of Kutch were found in its premises which indicates that the petitioner uses machine for cutting timber. Rule 2(a) of the Rules 1978 reads as under :
"2(a) "Saw Mill" means and includes 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 shall not include such mechanical, devices whose engine power is upto 3 H.P."
6. The petitioner is covered by the definition of "Saw Mill" as it uses cutting machine for cutting khair-wood. It requires a proper licence from the competent authority under the Rules.
7. The question is as to whether the petitioner should be granted licence for the Saw Mill. The State Government has framed Uttar Pradesh Establishment and Regulation of Saw Mills Rules, 1978. The Rules have been amended by Uttar Pradesh Establishment and Regulation of Saw Mills (Second Amendment) Rules, 1998. These rules provide for the grant of licence for Saw Mills.
8. The Supreme Court in T.N. Godavarman Thirumulkpad v. Union of India, AIR 1997 SC 1228, while considering the provisions of Forest (Conservation) Act, 1980, gave certain directions. One of the directions given in para 5 is as follows :
"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."
Their Lordships of the Supreme Court further in para 7 gave the following direction :
This order is to operate and to be implemented, notwithstanding any order at variance, made or which may be made by any Government or any authority, tribunal or Court, including the High Court."
9. In T.N. Godavarman Thirumulkpad's case (supra) an application was filed for seeking further direction. The Apex Court again reaffirmed the view taken in the case in T.N. Godavarman Thirumulkpad's case (supra) in (1997) 3 SCC 312 and in para 6 again emphasised as follows :
"6. All unlicensed saw-mills, veneer and ply-wood 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 for 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."
10. The matter was again considered by the Supreme Court after receiving the report in T.N. Godavarman Thimmulkpad v. Union of India and Ors., (1997) 7 SCC 440. In respect of Uttar Pradesh the Supreme Court permitted to grant permission to the existing licensed saw-mills provided that the relocated site is not within 10 Kms. of any existing forest. Para 4 contains certain directions which reads as under :
"A. In the State of Uttar Pradesh the following is permitted :
(1) Principal Chief Conservator of Forest (P.C.C.F.) may, on a case-to-case basis, consider grant of permission to an existing licensed saw-mill to relocate itself, provided that the relocated site is not within 10 Kms. of any existing forest.
(2) To alleviate the unintended hardship which may be caused to the ordinary populace in the hill areas who need forest produce for their survival, it is clarified as under :
(a) Nothing contained in the orders passed by this Court would prevent the U.P. Forest Corporation from directly undertaking the exercise of collecting forest produce including fallen wood (but not any felling or cutting of trees or timber) to the extent strictly necessary, and distributing the same ex-depot to the people living in the hill areas.
(b) The Forest Corporation may, with the prior permission of the P.C.C.F., remove dead or dry trees for supply in the same manner ex-depot to people residing in those areas. The Forest Corporation shall (i) undertake such activity itself without' engaging any outside agencies, and (ii) keep an account of the dead and dry trees felled and removed by them, and shall by way of an affidavit file the same in this Court."
11. On behalf of respondents, a counter-affidavit has been filed. In para 7 of the counter-affidavit, it is asserted that the petitioner's industry, namely. M/s. Mayur Kattha Industries is located within 10 Kms. from the reserved forest area. The second proviso to Rule 5 of U.P. Establishment and Regulation of Saw-Mills Rules, 1978, provides that if the saw-mill is situate within 10 Kms. area of any existing forest, the application shall not be entertained. The petitioner filed rejoinder-affidavit. In para 6 of the rejoinder-affidavit, it has not been specifically denied that the saw-mill of the petitioner is not situate within 10 Kms. of the forest, area. In view of the aforesaid provision, the application of the petitioner for the grant of licence was rightly rejected.
12. The next contention of the learned counsel for the petitioner is that Rule 11A has been inserted by U.P. Establishment and Regulation of Saw-Mills (Second Amendment) Rules, 1998, providing for exemption of certain industries from operation of the Rules.
Rule 11A reads as under :
"11 A. Where the State Government is satisfied that the operation of the Timber based industries, such as, Plywood mill, Veneer Mill. Kattha Industries, Paper and Pulp Industries and Cooling Towers Manufacturing Industries and like Industries whose final product is not timber and also the machinery used as Saw Mills are integral parts of their production process, is not possible due to application of all or any of the provisions of these rules, the State Government may by notification, for reasons to be recorded, exempt such industries from the operation of such rules--subject to such conditions, as it may deem fit, for the conservation of the tree-growth in the forests under the control of the Government and in the areas adjacent thereto."
13. Rule 11A confers power on the State Government to exempt certain industrial units from operation of the Rules. The petitioner has not shown that Government has issued any notification in respect of exemption of any unit manufacturing kattha and there is no special reason that the petitioner's unit be exempted.
14. In view of the above discussion we do not find any merit in the writ petition. It is accordingly dismissed.
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Title

Mayur Kattha Industries vs State Of U.P. And Ors.

Court

High Court Of Judicature at Allahabad

JudgmentDate
30 January, 2002
Judges
  • S Narain
  • V Sahai