JUDGMENT Saroj Bala, J.
1. In all the writ petitions a common question of law about the grant/renewal of licence for operating saw-mills having been raised, they are being decided simultaneously.
1. Writ Petition No. 36598 of 2004
2. The petitioners seek a writ, order or direction in the nature of mandamus directing the respondent No. 1 to consider the case of the petitioners for renewal of licence.
3. The contention of the petitioners is that the saw-mill was established in the year 1989 by his father who submitted licence fee with penalty from 1989 to 1997 (Annexure-1 to the writ petition). The petitioners' father had been running the saw-mil! earlier than the year 1989 without any licence. According to the petitioners in the year 1996 some officers of the forest department informed him that licence is required for the running of sawmill. When the petitioners applied for licence 'no objection certificate' from the District Magistrate, Aligarh was required to be furnished. According to the petitioners after filing of no objection certificate licence to run the sawmill was given in the year 1996. The assertion of the petitioners is that the U.P. Establishment and Regulations of Saw Mills Rules, 1978 provide that if an application for grant of licence is not disposed of within 60 days from the date of receipt of the application the licence shall be deemed to have been granted. The petitioners have stated that the respondent No. 3 having not disposed of the application of the petitioners' father within a period of 60 days the licence for running the saw-mill shall be deemed to have been granted. After the death of petitioners' father on 1.2.1997 they became the owners of the saw-mill and approached the respondent No. 3 for the renewal of licence. The petitioners made representations on 24.11.2003 and 31.9.2004 (Annexures-2 and 3 to the writ petition) to the respondent No. 3 in view of the judgment of this Court in the case of Nand Lal v. State of U.P. and Ors. AIR 2002 Allahabad 141 but the respondents did not consider their representations. The contention of the petitioners is that the respondents have misinterpreted the order of the Apex Court in the case of T.N. Godawarman Thirumulkpad v. Union of India wherein the direction to close down the saw mills having no valid licence on 1.4.1997 was issued. The petitioners stated that the decision in the said case was reconsidered by the Apex Court in relation to the State of U.P. more particularly the question of renewal or grant of fresh licence for running the saw mills.
4. No counter affidavit on behalf of the respondents has been filed.
2. Writ Petition No. 50612 of 2004
5. The petitioners seek a writ, order or direction in the nature of certiorari quashing the order dated 22.11.2004 (Annexure-1 to the writ petition) passed by the respondent No. 4 whereby declining to grant fresh licence for the running of saw mill. Each of the petitioners is the owner of saw-mill running with the aid of electric power upto 10 to 12 HP. The contention of the petitioners is that their applications for grant of licence have been rejected on the basis of the order dated 4.3.1999 passed by the Apex Court in Godavarman's case. The petitioners have stated that the import of the decision of the Supreme Court is not that no fresh licence for the running of the saw-mill can be granted. According to the petitioners this Court had the occasion to consider the decision of the Apex Court in the case of Nand Lal v. State of U.P. The petitioners assert that the authority concerned has not taken into consideration the provisions of U.P. Establishment and Regulations of Saw Mills Rules 1978 as amended by second amendment of 1998. The petitioners have stated that the applications for grant of licence having been moved under Rule 5 of the Rules, 1978 they should have been considered under the said provision. According to the petitioners in the entire district of Deoria there is no forest area, which can be governed by the Forest Act or Forest Conservation Act, 1980. The contention of the petitioners is that there is no legal bar for the grant of licence to the saw-mills situated within the radious of 10 Kms. from the forest. The petitioners have contended that the impugned order is violative of Article 19(1)(g) and Article 14 of the Constitution of India.
6. No counter affidavit has been tiled on behalf of the respondents.
3. Writ Petition No. 52784 of 2004
7. The petitioner seeks a writ, order or direction in the nature of certiorari quashing the impugned order dated 12.10.2004 (Annexure-5 to the writ petition) passed by the respondent No. 2 whereby declining to grant fresh licence for the running of saw mill. The petitioner also seeks a writ, order or direction in the nature of mandamus commanding the respondent No. 2 to reconsider the application for grant of licence.
8. The petitioner is said to have established a saw-mill in the year 1981 in village Sahlolva, Tahsil Karchana, district Allahabad and had been depositing the requisite licence fee with the forest department under the provisions of U.P. Establishment and Regulations of Saw Mills Rules, 1978. In the year 1997 the saw-mills having no valid licence were closed by the forest department in pursuance of the directions of the Apex Court in Godawaraman's case. The petitioner states that the Apex Court in the said case vide judgment dated 29.4.2002 set aside the amendment of U.P. Establishment and Regulations of Saw Mills Rules, 1978 so far as it exempted the saw mills using mechanical device with the use of power up to 3 HP from obtaining licence and directed that each and every saw mill running in the State of U.P. would require a licence. The contention of the petitioner is that it is clear from the orders passed by the Apex Court from time to time in the case of Godawaraman that a licence is required for the running of saw mill. According to the petitioner the respondents were bound to issue licence prior to the restriction imposed by the Apex Court as licence fee was deposited by him. The contention of the petitioner is that after the amendment of the U.P. Establishment and Regulations of Saw Mills Rules, 1978, the Divisional Forest Officer was required to consider and issue fresh licence to operate the saw mill. The petitioner states that his application for grant of licence having been rejected by the respondents without assigning reasons the impugned order is vitiated.
9. No counter affidavit has been filed on behalf of the respondents.
4. Writ Petition No. 54595 of 2004
10. The petitioner by means of the present writ petition has sought a writ, order or direction in the nature of certiorari quashing the order dated 1.12.2004 (Annexure-8 to she writ petition) whereby declining to grant renewal of licence.
11. The contention of the petitioner is that he had established a saw-mill in the year 1989. The petitioner deposited the licence fee with penalty from 1989 to 1997 vide receipt dated 20.11.1997 (Annexure-1 to the writ petition). According to the petitioner he had not applied for issuance of licence for saw-mill prior to the year 1997 as he was ignorant about the fact that licence is required for the said purpose. According to the petitioner in the year 1996 the Forest Officer came to the saw-mill and informed that licence is required for running the saw-mill. The petitioner applied for licence under Rule 5 of the U.P. Establishment and Regulations of Saw Mill Rules, 1978. According to the petitioner he has been continuously running the saw-mill since the year 1992. The petitioner has stated that in the year 1998 he applied for renewal of the licence and his prayer for grant of the same has been rejected by the respondent No. 3. The contention of the petitioner is that his application for grant of licence has been illegally and arbitrarily rejected by the respondent No. 3.
12. No counter affidavit has been filed on behalf of the respondents.
5. Writ Petition No. 1674 of 2005
13. The petitioner by way of the present writ petition claims a writ, order or direction in the nature of certiorari quashing the order dated 16.10.2004 (Annexure-7 to the writ petition) passed by the respondent No. 2. The petitioner also seeks a writ, order or direction in the nature of mandamus commanding the respondents to grant/renew his licence for the running of saw-mill situated at Jangigunj, district Sant Ravi Das Nagar in view of the U.P. Establishment and Regulations (IInd Amendment) Saw Mill Rules, 1998. The petitioner asserts that he has been running the saw-mill since the year 1981 under a valid licence. The last renewal of the licence was made in the year 1988. The contention of the petitioner is that after the year 1988 he applied for renewal of the licence but it was not renewed. According to the petitioner he deposited a sum of Rs. 15,000/- on 8.3.2003 as renewal fee for the period 1988 to 2003 vide treasury challan (Annexure-2 to the writ petition). On 29.2.2004 the petitioner deposited the sum of Rs. 20,000/- as renewal ice for the years 2003 to 2005 (Annexure-3 to the writ petition). The contention of the petitioner is that his saw-mill is situated at a distance of more than 10 Kms. from the forest area. The petitioner approached this Court on previous occasion by filing Civil Misc. Writ Petition No. 38580 of 2004-Ram Adhar Vishwakarma v. State of U.P. and Ors. which was disposed of vide order dated 20.9.2004 directing the respondent No. 2 to decide petitioner's application dated 15.2.2002 by a reasoned order within a period of three months. According to the petitioner in pursuance of the direction of this Court the respondent No. 2 rejected the representation as well as the application for grant of licence vide order dated 16.10.2004 (Annexure-7 to the writ petition). The petitioner states that in view of the U.P. Establishment and Regulations (IInd Amendment) of Saw Mills Rules, 1998 and the decisions of this Court, the petitioner is entitled to the grant of licence. The petitioner states that the impugned order has been passed by the authority concerned ignoring the amendment made in the Rules and guidelines issued by the Apex Court in the case of Godawarman.
14. No counter affidavit has been filed on behalf of the respondents.
6. Writ Petition No. 1728 of 2005
15. By virtue of the preset writ petition the petitioner seeks a writ, order or direction in the nature of mandamus commanding the respondent to decide petitioner' representation dated 23,8.2003 (Annexure-1 to the writ petition).
16. The petitioner, the proprietor of M/s Janta Plywood Industries,. Fateh Ullah Ganj, Thakur Dwara, district Mordabad, applied for the registration of the said Industry as Small Scale Industry, The application dated 23.7.2003 moved for the registration of the said Industry was dismissed vide order dated 25.7.2003 by the General Manager, District Industry Center, Moradabad. The petitioner made a representation on 23.8.2003 to the State Government against the said order, The petitioner has stated that for registration of an Industry for the purpose of manufacturing plywood no restrictions have been imposed by the Apex Court or the State authorities. The contention of the petitioner is that in the case of Godawarman the Apex Court has not placed any restriction for the grant of licence to operate in the area not falling within the specified forest area. According to the petitioner he is proposing to establish the industry in an area from where the nearest reserved forest area is 40 Kms. away.
17. No counter affidavit has been filed on behalf of the respondents.
7. Writ Petition No. 6078 of 2005
18. The petitioner by means of the present writ petition seeks a writ, order or direction in the nature of certiorari quashing the impugned order dated 18.1.2005 (Annexure-18 to the writ petition) passed by the respondent No. 4 whereby declining to grant licence for the running of saw-mill. The petitioner also seeks a writ, order or direction in the nature of mandamus commanding the respondent No. 4 to process his application dated 3.6.2004 moved for grant of licence,
19. The Conservator of Forest, Eastern Circle, Gorakhpur vide order dated 4.3.3995 directed the respondents, to issue licence in favour of the petitioner after taking necessary fees etc. but the licence was not granted to the petitioner though vide order dated 8.1.1999 licence for running of sawmill was granted to Daya Nand and Prem Narain Singh. The petitioner filed Civil Misc. Writ Petition No. 9354 of 1999-Sunil Kumar Singh v. State of U.P. and Ors. which was finally disposed of vide order dated 9.4.1999 directing the respondents to decide the application of the petitioner for grant/renewal of licence within a period of 60 days. Pursuant to the order of this Court the petitioner moved an application before the respondent No. 4 on 20.4.1999 together with the copy of the order dated 9.4.1999. The application having not been decided by the respondent No. 4, a Contempt Petition No. 1957 of 1999 was moved. The respondent No. 4 vide letter dated 3.8.1999 informed the petitioner that due to the order dated 4.3.1997 passed by the Apex Court no fresh licence can be granted. The petitioner made a representation on 23.8.200? before the respondent No. 4 for grant of licence under Circular letter dated 26.6.1998. The contempt petition was dismissed on 10.5.2004 with the observation that the petitioner may challenge the order dated 19.10.2002 before the appropriate Court. The petitioner filed Civil Misc. Writ Petition No. 19655 of 2004 challenging the order dated 19.10.2002 which was disposed of by order dated 28.5.2004 directing the respondent No. 4 to consider petitioner's application in accordance with law. In compliance of this Court's order dated 28,5.2004 the petitioner moved a fresh application on 3.6.2004 for the grant of saw-mill licence under the amended Rules 1998. The said application was rejected by the order dated 15.7.2004 (Annexure-15 to the writ petition). The petitioner filed Civil Misc. Writ Petition No. 27089 of 2004 against the order dated 15.7.2004 which was finally disposed of by this Court vide order dated 4.10.2004 directing the petitioner to make fresh representation for the grant/ renewal of the licence before the authority concerned. The authority concerned was directed to decide the same in view of the direction given in the decision of Nand Lal v. State of U.P. and Ors. 2002 (1) AWC 781. The petitioner in pursuance of the direction of this Court made a representation before the respondent No. 4 which has been rejected vide impugned order dated 18.1.2005. The petitioner states that the impugned order is violative of Article 19(1)(g) of the Constitution of India. According to the petitioner the respondent No. 3 has illegally and arbitrarily rejected the application for the grant/renewal of licence.
20. No counter affidavit has been filed on behalf of the respondents.
8. Writ Petition No. 9050 of 2005
21. The petitioner seeks a writ, order or direction in the nature of certiorari quashing the impugned order dated 7.12.2004 (Annexure-9 to the writ petition). The petitioner also seeks a writ, order or direction in the nature of mandamus commanding the respondents to grant licence for running of saw-mill.
22. The petitioner is the owner of a saw-mill and deposited licence fee on 22.9.1994 for grant of licence for the years 1994 to 1997. The petitioner applied for issuance of no objection certificate on 26.9.1992. No objection certificate was granted to the petitioner on 24.10.1992. The petitioner has stated that under the government order 26.6.1998 no licence was required for running of saw-mill using machinery of 3 HP power. The petitioner states that he has been running the saw-mill from the year 1989 to February 1 1, 2004, On 12.2.2004 he was forced to close the saw-mill by the Forest Officer. Pursuant to the direction of the Apex Court. The petitioner moved an application for grant of licence on 26.2.2004 which remained pending despite repeated reminders. The petitioner filed Civil Misc. Writ Petition No 15017 of 2004 before this Court which was disposed of vide order dated 12.4.2004 directing the petitioner to make a representation before the authority concerned. The petitioner's representation was rejected by the respondent No. 2 vide order dated 29.4.2004. A Civil Misc. Writ Petition No. 27141 of 2004 was filed by the petitioner challenging the order dated 29.4.2004. The said writ petition was disposed of vide judgment and order dated 4.10.2004 directing the petitioner to make fresh representation for grant of licence before the licensing authority which was to be decided by the authority concerned within a period of two months from the date of production of a certified copy of the order in view of the direction given in the decision of Nand Lal v. State of U.P. and Ors.. The petitioner filed a representation in compliance of the said order which was rejected by the impugned order dated 7.12.2004. The contention of the petitioner is that the action of the respondent is arbitrary and against the law.
23. No counter affidavit has been filed on behalf of the respondents.
9. Writ Petition No. 13655 of 2005
24. The petitioner by means of the present writ petition seeks a writ, order or direction in the nature of certiorari quashing the impugned order dated 12.11.2001 (Annexure-5 to the writ petition) and order dated 21.8.2004 (Annexure-7 to the writ petition). The petitioner also seeks a writ, order or direction in the nature of mandamus directing the respondent to renew the licence of the petitioner's saw mill since the year 1997.
25. The petitioner is the proprietor of Usha Saw Mill situated at Shivpur Bazar, Vindhyachal, district Mirzapur, The said unit was registered as a Small Scale Industrial Unit with the Directorate of Industries vide registration certificate dated 3.12.1986 (Annexure-2 to the writ petition). According to the petitioner fee for renewal of the licence of saw-mill for the years 1986 to 1996 has regularly been deposited by the petitioner through receipts (Annexure-3 to the writ petition). Since the year 1997 the respondents have refused to accept the fee for renewal of the licence on the ground of an order passed by the Apex Court in Case No. 202 of 1995 on 4.3.1997. According to the petitioner the respondents vide order dated 12.11.2001 has rejected the application for grant renewal of the licence. According to the petitioner the impugned order is illegal, arbitrary and against the principles of natural justice, equity and fair play. The contention of the petitioner is that by an order dated 31.8.2004 the respondents have ordered for the closure of petitioner's industry in view of the directions of the Apex Court given in case of T.N. Godawarman v. Union of India and Ors. and have seized the saw-mill and other instruments connected with it. The contention of the petitioner is that his saw mill is situated out side the radious of 10 Km of the forest area. The petitioner has stated that taking into consideration the amendment made by the State Government in the U.P. Establishment and Regulations of Saw Mills Rules, 1978 this Court in a bunch of writ petitions has directed the respondents to dispose of the application for grant of new licence or for renewal in accordance with law within the time bound period. According to the petitioner he is using his saw-mill for cutting woods for domestic and agricultural purpose.
26. No counter affidavit has been filed on behalf of the respondents.
10.Writ Petition No. 15676 of 2005
27. The petitioner seeks a writ, order or direction in the nature of certiorari quashing the impugned order dated 31.1.2005 (Annexure-5 to the writ petition) whereby declining to grant a new licence for running the sawmill.
28. The petitioner is the owner of a saw-mill. An application was moved on 2.12.2002 for the grant of licence under the provisions of Rules 4 and 5 of the U.P. Establishment and Regulations of Saw Mill Rules, 1978. The contention of the petitioner is that under Rule 5 the application for grant of licence has to be considered and decided within 60 days otherwise the licence shall be deemed to have been granted. The contention of the petitioner is that the licence for running the saw-mill having not been granted to the petitioner despite the expiry of the period of 60 days from the date of presentation of the application, the licence would be deemed to have been granted. The petitioner sent an application through registered post for the grant of licence, which has been rejected by the order dated 31.1.2005. The contention of the petitioner is that the authority concerned has not taken into consideration the aspect that after the expiry of the period of 60 days the application for grant of licence should have been treated as granted. According to the petitioner the impugned order is violative of Articles 14 and 21 of the Constitution of India.
29. No counter affidavit has been filed on behalf of the respondents.
11. Writ Petition No. 19954 of 2005
30. The petitioner seeks a writ, order or direction in the nature of certiorari quashing the impugned order dated 13.9.2002 (Annexure-6 to the writ petition). The petitioner also seeks writ, order or direction in the nature of mandamus commanding the respondents to renew or grant fresh licence. Another writ, order or direction in the nature of mandamus has been sought commanding the respondent to accept the renewal fee for all the previous years as well as of the current year for grant of licence.
31. The petitioner and his father established a small unit of saw-mill in the year 1984 which is run with machinery of 10 HP power and deposited licence fee vide receipt No. 47 book No. 235. The petitioner also deposited the licence renewal fee for the period 1989 to 1997. According to the petitioner his saw-mill is duly licensed under the U.P. Zila Parishad Krishi Utpadan Mandi Adhiniyam, 1964. According to the petitioner he is entitled to get a licence for the running of his saw-mill under the provisions of Rules 4, 5, 6 and 7 of the U.P. Establishment and Regulation of Saw Mill Rules, 1978 as amended on 26.6.1998. The contention of the petitioner is that his saw-mill is not situated within the forest area. The petitioner has stated that in Civil Misc. Writ Petition No. 16684 of 2000 filed by his father this Court passed an order directing the authority concerned to decide the application for grant of licence in view of the amended Rules, 1998. According to the petitioner the Apex Court having not imposed any restriction on the grant of new licence or renewal of existing licence for running the saw-mill, the impugned order is against the law.
32. No counter affidavit has been filed on behalf of the respondents.
33. We have heard Sri M.K. Kushwaha, Sri S.C. Mandhyan and Sri Mansoor Ahmad, learned Counsel appearing on behalf of the petitioners and the learned Standing Counsel appearing on behalf of the respondents and have carefully examined the records of all the writ petitions.
34. The learned Counsel for the petitioners argued that the petitioners had been depositing the requisite licence fee with the forest department to operate their saw-mills as per the directions of the forest department. It was submitted that the saw-mills of the petitioners were closed in the year 1997 by the respondents in view of the directions of the Apex Court given in Civil Misc. Writ Petition No. 202 of 1995 T.N. Godawarman Thirumulkpad v. Union of India and Ors.. The learned Counsel for the petitioners urged that under the provisions of Rule 5 of the U.P. Establishment and Regulations of Saw Mills Rules, 1978, holding of licence is a pre-requisite for carrying on the saw-mills business. The submission of the learned Counsel for the petitioners was that the petitioners though applied for grant of licence on requisite pro forma but the licence was not issued by the forest department. It was submitted that the petitioners had been operating the sawmills as a deemed licencee and were permitted by the forest department to deposit licence fee/renewal fee. The learned Counsel argued that the U.P. Establishment and Regulations of Saw Mill Rules, 1978 were amended vide notification No. 4219/40-2-98-405 (209)/96 T.C. II, Lucknow dated 26.6.1998 and were called as the U.P. Establishment and Regulation (IInd Amendment) Rules, 1998 and under the amended Rules 5 and 7 there was provision for deemed licence, in the event of the application for grant of licence not dealt with within a period of 60 days from the date of its presentation. The learned Counsel submitted that the aforesaid amendment was struck down by the Apex Court in the case of T.N. Godawarman Thirumulkpad v. Union of India. The learned Counsel urged that the Divisional Forest, Officer is required to enquire on receipt of the application for licence and after satisfying himself he is under an obligation to grant licence. The argument of the learned Counsel was that due to inaction on the part of the forest department licence could not be issued to the petitioners to operate their saw-mills though they applied on a prescribed proforma and complied with all the terms and conditions laid down in Rule 5 of 1978 Rules. The submission of the learned Counsel for the petitioners are that the applications for grant/renewal of the licence have been rejected mechanically by a non-speaking order. The learned Counsel argued that in the case of Nand Lal v. State of U.P. and Ors. AIR 2002 Allahabad 141, in bunch cases Civil Misc. Writ Petition No. 2022 of 1999 Suraj Prakash and Anr. v. Divisional Forest Officer, Jaunpur and Ors. connected with 19 other writ petitions decided on 9.4.1999 this Court after going through the various directions issued by the Apex Court in the case of T.N. Godawarman Thirumukpad v. Union of India has held that the Apex Court was only clarifying that no fresh licence should be granted in violation of the provisions of Forest Conservation Act, 1980. The submission of the learned Counsel for the petitioners is that the Apex Court has not prohibited the grant of licence to operate saw-mills. The learned Counsel for the petitioners vehemently argued that some saw-mill owners had approached the Apex Court in the case of Jawahar Lal Sharma v. Divisional Forest Office U.P in similar matters and the Apex Court held that no order or direction made by the Supreme Court of India to the effect that even the existing licence shall not be renewed, has been brought to notice.
35. The learned Standing Counsel submitted that after the decision in the case of Nand Lal (supra), Suraj Prakash and others (supra) and Jawahar Lal Sharma (supra) there has been a drastic change in the legal sinerio. The learned Counsel pointed out that specific directions issued by the Apex Court in the case of T.N. Godawarman Thirumulkpad v. Union of India (supra) had not been noticed by this Court and the Apex Court while passing orders in the said cases. The learned Counsel submitted that amendments incorporated in Rules 5 and 7 of the U.P. Establishment and Regulations of Saw Mills Rules, 1978, have been struck down by the Apex Court. The learned Counsel urged that the petitioners were not having valid licence on 4.3.1997 or prior to the said date.
36. We have given our anxious consideration to the factual matrix of each of the case and the submissions raised on behalf of both the parties.
37. All the petitioners are the owners of the saw-mills situated in different areas and districts of Uttar Pradesh. The petitioners have sought grant/renewal of saw-mills licences. The petitioner have tiled receipts indicating lump sum deposit of licence fee for the years prior to the year 1997. None of the petitioners has filed the licence, if any, issued in his favour. The lump sum deposits of licence lee were made in the year 1996 which means that the saw-mills were operating without licence though Rule 3 of the U.P. Establishment and Regulations of Saw Mills Rules, 1978 (hereinafter referred to as 1978 Rules) provided that no person shall establish, erect or operate any saw-mill or machinery for converting as cutting timber and wood without obtaining a licence from the Divisional Forest Officer concerned. Rule 5 of 1978 Rules provided that on receipt of an application under Rule 4 the Divisional Forest Officer shall acknowledge the same and thereafter shall make such inquiries as he may deem fit after satisfying himself with regard to the following factors, grant licence in the form given in Schedule II appended to this Rules: (i) the required quantity of timber through legitimate means would be available at the proposed value of the saw-mill without causing any damage to the tree growth in the forest under the control of government and adjacent rural areas; (ii) that the applicant 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' from the District Magistrate concerned for erecting and running the saw-mill. There was no provision in Rule 5 of 1978 Rules about the presumption of grant of deemed licence in case of pendency of an application before the licensing authority for a period of more than 60 days. The petitioners did not challenge the action of the licensing authority in keeping the applications pending since long. The Rules 2, 5, 6 and 7 of 1978 Rules were amended vide notification dated 26.6.1998 and the amended rules were called as the U.P. Establishment and Regulations of Saw Mills (IInd Amendment) Rules 1998. The definition of saw-mill as contained under Rule 2 was changed 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 shall not include such mechanical device whose engine power is upto 3 HP'. The first proviso added to Rule 5 by the amendment provided that in case the application for grant of licence is not disposed of within 60 days from the date of receipt 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 said 60 days and in that event the acknowledgement shall he adequate proof of the licence. In the amended Rule 7 relating to renewal of licence, the first proviso was added which provided that in case the application is not disposed of within 60 days from the date of receipt by the Divisional Forest Officer the licence shall be deemed to have been renewed for a period of three years. The amended Rules 2, 5 and 7 of the U.P. Establishment and Regulations of Saw Mills Rules 1998 came up for consideration before the Supreme Court on April 29, 2002 in the case of T.N. Godawarman Thirumulkpad v. Union of India and it was held as below:
Our attention has been drawn to the rules which have been amended by the State of Uttar Pradesh on 26.6.1998 permitting sawmills having engine power of 3 UP not to have a licence. This amendment was made after this Court's order dated 4.3.1997 directing closure of all unlicensed sawmill in the State of Uttar Pradesh and Maharashtra. It is quite obvious that with a view to circumvent this Court's order dated 4.3.1997, the State of Uttar Pradesh has used the device of changing the law. That this was done with a view to help the sawmills is quite evident from the affidavit of Sri Anupam Malik, Forest Utilisation Officer, U.P., Lucknow, who in paragraph 4 of the affidavit states that three' sawmills, namely, M/s Punjab Sawmill, M/s Rana Sawmill and M/s Nur Handicraft having sawmills of 15 HP, 19 HP and 8 HP respectively within the Municipal limits of Saharanpur were sealed pursuant to the orders of this Court dated 4.3.1997. This affidavit further goes on to state that presently these very sawmills are in operation using power less than 3 HP. We refused to believe that the sawmills which were having 15 HP, 19 HP and 8 HP would today be functioning using less than 3 HP. It is only the State of Uttar Pradesh which can be gullible, willingly or unwillingly, to accept this. We, therefore, set aside the amendment of the U.P. Establishment and Regulation of Sawmills Rules, 1978, which was effected on 26.6.1998, in so far as it exempted sawmills 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 sawmill running in the State of Uttar Pradesh would require a licence, whether the sawmill is running with the aid of power or otherwise. The rule which provides for deemed licences in the event of the application for the grant of licence not being dealt with, contained in the sawmills Rules, being Rule 7, is also held to be contrary to the letter and spirit of the Indian Forest Act and the orders of this Court and is, accordingly, set aside.
38. The Apex Court having struck down the amendments relating to exemption of saw-mills using mechanical device with the use of power upto HP from obtaining the licence and the provision for deemed licence in the event of the application for grant of licence not disposed of within 60 days and there being no provision for presumption of grant of licence in 1978 Rules, the claim of the petitioners that on failure of the authority concerned to consider their applications for grant of licence within 60 days, there is presumption of grant of licence, is devoid of merit. The mere deposit of licence fee does not amount to grant or renewal of the licence. The petitioners who had been running saw-mills without licence seem to have become conscious to have licence for the operation of saw-mills after the directions of the Apex Court passed on 12.12.1996 in T.N. Godawarman Thirumulkpad's case wherein the Apex Court while considering the matter of protection and conservation of forest observed as under:
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.
(2) to (5)...
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) the proximity to the nearest forest ;
(iv) the source of timber.
7. Each State Government should constitute within one month, an Expert Committee to assess;
(i) the sustainable capacity of the forests of the State qua saw-mills and timber-based industry;
(ii) the number of existing saw mills which can safely be sustained in the Slate;
(iii) the optimum distance from the forest, qua the State, at which the saw mill should be located.
8. The Expert Committee so constituted should be requested to give its report within one month of being constituted.
9. Each State Government would constitute a committee comprising of the Principal Chief Conservator of Forests and another Senior Officer to oversee the compliance of this order and file status reports.
39. On 4th March 1997 some modifications were made by the Supreme Court in the order dated 12.12.1996 passed in the case of T.N. Godawarman Thirumulkpad which are reproduced below:
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 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 the direction and file a compliance report within two weeks.
40. Again on May 8, 1997, T.N. Godawarman Thirumulkpad's case Civil Misc. Writ Petition No. 202 of 1995 came up for consideration before the Apex Court and directions were issued which are as follows:
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 sawmill to relocate itself, provided that the relocated site is not within 10 Kms. of any existing forest.
41. On May 9, 2002, further directions were issued by the Supreme Court in the aforesaid case of T.N. Godawarman Thirumulkpad which are as follows:
After hearing the learned amicus curiae, 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 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 orders and to place the non-compliance cases before it, including in respect of encroachment removals, implementation of working plans, compensatory afforestation, plantations and other conservation issues.
(2) The Empowered Committee shall comprise of a Chairman to be nominated by Ministry of Environment and Forest (MOEF) in consultation with the amicus curiae. It will have one nominee of the MOEF, and two NGOs (also to be nominated in consultation with the amicus curiae). Sri M.K. Jiwrajka will be its member-secretary. The persons so appointed (other than the nominee of the Ministry) shall not be removed without leave of the Court.
(3) Pending interlocutory applications in these two writ petitions as well as the reports and affidavits filed by the States 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 any steps taken by the Government or any other authority in purported compliance with the orders 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 person or 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.
42. The government in pursuance of the direction of the Supreme Court constituted the Central Empowered Committee by notification dated June 3, 2002. The aforesaid Central Empowered Committee considered the cases of those saw-mills where 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 sawmill 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 licence for any sawmill 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 fulfillment of this vital requirement. Mere deposition of 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.
43. The matter was again taken up for consideration before the Supreme Court on October 29/30, 2002 in the case of T.N. Godawarman Thirumulkpad (supra) and 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 the direction. There shall also be no relaxation of Rules with regard to the grant of licence without previous concurrence of Central Empowered Committee.
44. A perusal of various orders and directions of the Supreme Court brings out that there is a sea change in the legal position after the judgment of this Court in the case of Nand Lal v. State of U.P. and Ors. (supra), bunch cases Suraj Prakash and Anr. v. Divisional Forest Officer (supra) and the Apex Court decision in Jawahar Lal Sharma's case (supra). The subsequent orders/directions of the Supreme Court in the case of T.N. Godawarman Thirumulkpad (supra) were not noticed by this Court in the case of Nand Lal and other bunch cases. The Apex Court in the case of Jawahar Lal Sharma v. Divisional Forest Officer of U.P. has 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 order 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 petitioners therein shall be granted if 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.
45. The Supreme Court in the case of Jawahar Lal Sharma had considered that the saw-mill owners placed in similar situation and circumstances should be treated alike. In some cases this Court had directed the respondents that on completing all the necessary formalities by the petitioner therein and depositing the licence renewal fee for all the previous years as well as current year, licence to run the saw-mill in favour of the petitioners therein shall be granted if there be no legal impediment. As observed earlier there is drastic change in the legal position in view of the orders and directions passed by the Apex Court on May 9, 2002 and 29/30 October 2002 which did not fall for consideration before this Court in the case of Nand Lal and others (supra) and the Apex Court in the case of Jawahar Lal Sharma (supra). this Court in the case of Chaudhary Chandan Singh v. State of U.P. 2005 ALJ 3067 while dealing with similar matter distinguished the case of Nand Lal and held that the decision of this Court in the case of Nand Lal AIR 2002 Allahabad 141 have also not taken note of the subsequent orders/directions of the Supreme Court in the case of T.N. Godawarman Thirumulkpad. The Division Bench in the aforesaid case of Chaudhary Chandan Singh has further held as below:
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.
46. In these bunch cases the licence to operate saw-mills were never issued in favour of the petitioners. The petitioners deposited the licence fee for previous years in the year 1996. None of the petitioners was having a valid licence to operate saw-mill prior to March 4, 1997, therefore, there was no question of renewal of their licence. Moreover, after the orders and directions of the Apex Court on May 9, 2002 and 29/30 October 2002 it was mandatory for the petitioners to place the applications for grant of licence before the Central Empowered Committee. The Divisional Forest Officer and the Regional Forest Officers have passed the impugned orders rejecting the applications for the fresh grant/renewal of the licence for the operation of saw-mills in view of the directions passed by the Supreme Court on 9.5.2002 and 29/30 October 2002. The petitioners' applications for grant of licence having not been placed before the Central Empowered Committee, we find no infirmity or illegality in the orders impugned in each of the writ petition.
47. In the result, all the writ petitions fail and are dismissed, accordingly with no order as to costs.