SUSHILA SAW MILL Vs. STATE OF ORISSA

JUDGEMENT

(1.) This special leave petition arises from the order of the Division Bench of Orissa High Court dated March 16, 1995, in Civil Writ Petition No. 1545 of 1995. The petition has established a Saw mill in the year 1980, in Keonjhar District of Orissa State. The notice under S.4(1) of Orissa Saw Mills and Saw Pits (Control) Act 1991, (for short 'the Act') was issued to the petitioner to close down its operations with immediate effect. Challenging the validity of S.4(1) of the Act and the notice, he filed the writ petition contending that it violates his fundamental right to carry on trade and business and also created invidious discrimination to the Saw Mills/Saw Pits situated in that district vis-a-vis other districts. It was also contended that the act did not create any total ban but gave discretion to the licensing authority to grant or refuse the renewal of licence. Without considering their application for renewal, direction to close down the mill is arbitrary. The Division Bench negatived both the contentions relying upon its Full Bench judgment in Lakshmi Narayan Saw Mills v. State of Orisss, (1995) 1 Orissa LR 1 (FB). The petitioner placed reliance on a Division Bench judgment of that Court in M/s. Saraswati Saw Mills v. State of Orissa, 1995 (79) CRT 61. It is contended for the petitioner that the views of the Full Bench and the Division Bench judgment in question are not correct. A reading of the Act does not indicate that the statute imposed total prohibition on the right to carry on the Saw Mill business. Even otherwise, mills situated within the district have been discriminated as its geographical contiguity of District is such that no Saw Mills can be established or exist within 10k.m. as envisaged under proviso to S.4(1) of the Act. Therefore, it violates their fundamental rights under Arts. 14, 19(1)(g) and 301 of the Constitution.

(2.) The Act came into force on November 20, 1991. The Rules made in exercise of the power under S.23 have come into force on November 18, 1993. The Act was enacted to regulate establishment and operation of Saw Mills and Saw Pits and trade of sawing to protect and conserve forest and environment and for matters incidental thereto or connected therewith. The "forest area" is defined to mean all notified lands as forest under any law and administered as forest whether State-owned or private and whether wooded or maintined as a potential forest land. Section 5 empowers the Government to declare for a specified period reserved forest etc. Section 4 of the Act provides establishment and operation of Saw Mills and Saw Pits. The said section provides as under :

(3.) The petitioner-Saw Mill is admittedly situated within the reserved forest or protected forest or forest area within 10 k.m. fromthe boundary of such forest area. Thus, the petitioner's Saw Mill is situated within the prohibited area. The question, therefore, is whether the prohibition contained in statute is valid in law Section 4 regulates establishment and operation of Saw Mills and Saw Pits under the act enjoining that on and after the appointed day no person shall establish or operate a Saw Mill or Saw Pit or sawing operation except under the authority and subject to the conditions of licences granted under the Act. The proviso which was assailed in this petition puts further embargo that no person shall establish or operate any Saw Mill or Saw Pit which is situated in a reserved forest,protected forest or any forest area or within 10 k.m. from the boundary of such forest or forest area. By applying non-obstante clause, sub-s. (2) of S. 4 relieves from the operation of proviso to sub-s. (1) of S.4, only a Saw Mill or a Saw Pit established by Orissa Forest Development Corporation Ltd. or any other agency of the Government prior to the appointed day. Their continuance and operation are only saved and they are deemed to be the licensee for the purpose of regulation of the Act. Clause (ii) thereof mandates that the Saw Mill or Saw Pit other than covered by Clause (i) of S. 4(2) established prior to the appointed day may continue to be operated and shall be deemed to be Saw Mill or Saw Pit and deemed to have been licensed under the Act but it is only a transitory provision as indicated in sub-clauses (a) and (b) thereof. In other words, the Saw Mill established prior to the Act coming into force, i.e., the appointed day and continuing to operate after the Act has come into force, shall be entitled to carry on its operations for a period of three months from the appointed day or till the application for licence or renewal made under S.6 is pending consideration and is disposed of under sub-s.(2) of S.7. Section 5 gives power to the State to declare prohibited area and sub-s.(2) envisages that during the subsisting period of the prohibited area the consequences have been enumerated under sub-s.(2) of S.4 and proviso to S. 4(1), namely, prohibiton to grant a licence for establishment of a Saw Mill or a Saw Pit, or operation of the existing saw mill or saw pit was restricted to the period specified in Clauses (a) and (b) of S.4(2) (ii); and prohibition to renew the licences to a Saw Mill situated within the prohibited area during that period. A Saw Mill or a Saw Pit "shall cease to operate and keep its saw operation closed". The only enabling power given to the licensing authority was to see that existing stock may be disposed of and no claim for damages was permitted. For their contravention S.13 gives power to confiscate the property. Sections 6 and 7 operate to grant licences in areas other than the prohibited area. Rule 3 of the rules gives effect to the provision of the Act and the grant of the licence will be subject to the conditions enumerated in Clauses (i) to (v) of Rule 6. Section 7 enjoins the Licensing Officer to grant or refuse to grant licence in accordance with the provision of the Act and the Rules and for the reasons enumerated thereunder.