ASHOK GOTMARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Advocate Badar states that there are total 12 Writ Petitions in this lot drawn by Respondent Forest Department. All Saw Mills involved therein have been given licence after 16/7/1987 by officer other than the State Government or Chief Conservation of Forest. Forest Department states that therefore, Chief Conservation of Forest (Protection), Nagpur vide government letter dated 12/1/2005 revoked those licences. Writ Petitions 2884/ 2006, 3040/2006, 4283/2006, 4657/2006, 4658/2006, 2288/2007 are admitted matters while Writ Petitions 3041/2006, 3739/2006, 5312/2006,1349/2007,5402/2007, 5945/2007 are for admission. As the matters pertain to Saw Mills and conservation of Forest, it appears that this Court has been making effort to dispose of them finally and all matters were kept therefor at the end of admission board since quite some time. All Petitioners before this Court are running Saw Mills and by interim orders passed in the matter, their Mills continue to function. As few matters are already admitted, we hereby admit Writ Petition Nos.3041/2006, 3739/2006, 5312/2006, 1349/2007, 5402/2007, 5945/2007 for final hearing and proceed to hear them finally by consent.

(2.) The facts essential for determination of issues involved show that the basic challenge in all these matters is same. The different Petitioners challenge respectively the orders dated 22/5/2006 in W.P. No.2884/ 2006 or dated 24/5/2006 in W.P. No.3041/ 2006 or dated 26/5/2006 in W.P. No.3040/ 2006 or dated 30/5/2006 in W.P. No.2288/2007, W.P. No.5402/2007, W.P. No.4658/ 2006 or dated 31/5/2006 in W.P. No.3739/ 2006 or dated 1/6/2006 in W.P. No.4657/2006 or dated 30/6/2006 in W.P. No.4283/2006 or dated 18/8/2006 in W.P. No. 1349/2007 and dated 16/9/2006 in W.P. No.5312/2006 passed by Respondent 2 Chief Conservator of Forest (Protection) and seek quashing of communications dated 11/1/2005 and 12/1/ 2005; notification dated 1671981. Though all these orders by the Chief Conservator of Forest (Protection) are of different dates, they are identical. Petitioners also pray for a declaration that the issuance of licence by Respondent No.3 Deputy Conservator of Forest Nagpur in their favour in 1982/1983 is legal, valid and binding upon the Respondents. Respondents before this court are State of Maharashtra through its Secretary (Forest), The Chief Conservator of Forest (Protection) at Nagpur, Deputy Conservator of Forest formerly known as Divisional Forest Officer, Nagpur, The Chief Conservator of Forest (Territorial), Nagpur and The Central Empowered Committee constituted by Hon'ble Apex Court. Identical order dated 30/ 6/2006 passed by Respondent 2 Chief Conservator of Forest (Protection) is also questioned by Petitioner in W.P. No.5945/ 2007 but then he challenged that order in appeal before Respondent 1 State of Maharashtra. Appellate Authority dismissed his appeal "for the present" on 18/6/2007 but by recording the findings that as per government decision dated 27/4/2007, for bringing uniformity in government policy and Rufes regarding Saw Mills, a Committee has been constituted and said committee is going to consider the orders passed by Hon'ble Apex Court and High Court with Rules to bring in such uniformity and consistency. However, said order is only a proposal put up by office before Hon'ble Minister because language therein reveals that it was only for information of Hon'ble Minister. Even the "dismissal of appeal for the present" appears to be a mere recommendation which states that after receipt of report of committee, government may consider it and resolve future policy.

(3.) At this stage it is necessary to briefly point out the decision taken by State Government on 16/7/1981. By notification issued in exercise of powers under section is 41 and 76 of Indian Forest Act, 1927 in its application to State of Maharashtra, Government of Maharashtra amended Bombay Transit of Forest Produce (Vidarbha Region and Saurashtra and Kutch Areas) Rules, 1960 and a subrule "11" came to be added therein after subrule "10" of Rule 23. By subrule (11a) the exercise by Divisional Forest Officer of his powers to grant licence for erecting or operating any machinery or Saw Mill for cutting or converting of timber and his power to refuse, renew and revoke such licence has been subjected to Superintendence, direction and control of the State Government. By sub rule (11b) State Government has reserved to itself power to issue directions to Divisional Forest Officers in the matter either generally or in any specified category of cases by notification in Official Gazette. These directions are binding on licensing authorities, licensees and other persons concerned. The directions can be issued when State Government is satisfied that for conservation of trees and forest or for carrying out any other purposes of Act it is necessary to issue the same. On same day, in exercise of powers conferred by subrule (11) of a Rule 23 of Bombay Forest Rules, 1942, State issued certain directions for guidance of licensing authorities in relation to grant of new licences. Vide its clause 1 it specified that until further orders by State Government no new licences shall be granted by Divisional Forest Officer. But then an exception has been made in matters where no objection certificate for establishment of Saw Mill was given by Forest Department prior to 16/7/1981 and even there prior approval of Chief Conservator of Forest has been made compulsory. But then for use of power under this exception, 3 conditions are required to be satisfied. Those conditions are : (l)the applicant has purchased machinery or incurred financial or other liabilities of substantial nature, prior to the date of issue of said directions, (2)he has fulfilled other formalities relating to industrial licence, municipal licence etc. and (3)the Saw Mill is to be located at least 10 km. outside the boundary of any reserved or protected Forest. On 19th August, 1981, in exercise of powers under above subrule (11) an amendment is issued and requirement of prior approval of Chief Conservator of Forest in clause 1 has been substituted by prior approval of the Conservator of Forest. In the guidelines, after clause 2, a new clause i.e. clause 3 has been added and a special provision has been made for grant of licence by Divisional Forest Officer to Saw Mill actually in operation on 16/7/1981 without a valid licence if State Government is satisfied that it's closure would not be proper in the public interest having regard to the substantial investment made and the services rendered by it to the members of the community in the area. But then this is subject to conditions specified in subclauses (2) and (3) of clause 1. The application for such licence needs to be made before 30th September, 1981 and applicant has to pay necessary licence fee and renewal fee for the entire period right from initial commencement of the operation by his Saw Mill. By explanation a Saw Mill is deemed to have been actually in operation on 16/7/1981 notwithstanding fact that it's operation was stopped or suspended earlier at the instance of the Divisional Forest Officer on the ground of not holding a valid Saw Mill licence. On the 1st August, 1982, these guidelines/directions have been further amended and in its clauses 2 and 3. at both places word "State Government" have been replaced by words "Chief Conservator of Forest". Same substitution has also been effected in its clause 4. In short, after 1/8/1982, to enable Divisional Forest Officer to grant licence to Saw Mill, no objection certificate by Forest Department prior to 16/7/1981 and prior approval of Conservator of Forest is essential.