YOGENDRA CHANDRA Vs. STATE OF H.P.

JUDGEMENT

(1.) The petitioner, Yogendra Chra is a Member of the Himachal Pradesh Legislative Assembly claims to have filed C.W.P. No. 1455 of 1993, in public interest. He also claims to be the Convenor of the Indian National Trust for Art Cultural Heritage President of Himalayan Wild Life Environment Preservation Society alleges that grant of permission by the respondent State Government to respondents Sagar Katha Factory, M/s Doon Katha Factory Orient Herbs, for establishing their Katha manufacturing units is contrary to National Forest Policy H. P. Forest Policy besides detrimental to environment protection. He, therefore, prays for a writ of certiorari for quashing the permission granted to the aforesaid Units with a further writ in the nature of mamus to the respondent State Government to properly manage khair wood forests in the State by framing a working plan in that behalf. Petitioner Shankar Trading Co. (C.W P. No. 1475/93) is the only mechanised unit in the State of Himachal Pradesh producing katha since 8 -2 -1973 in the name of Mahesh Udyog It is challenging the grant of permission to establish similar mechanised units to the aforesaid three respondents on similar grounds. Petitioner Ved Prakash in C W.P. No. 1489/93 represents Bhattiwalas feels similarly aggrieved by grant of permission to new units has made similar submissions on their behalf. Petitioners in other writ petitions were registered as Industrial Units for producing katha in the S ate of Himachal Pradesh claim to have invested large sums of money in purchase of l, machinery construction erection of their factories. The permission granted to them has been either refused or registration withdrawn either by the respondent State Government or the Industrial Projects Approval Review Authority (IPARA for short). They, therefore, feel aggrieved by the aforesaid action have preferred their separate writ petitions claiming necessary relief from this Court in exercise of its writ jurisdiction under Article 226 of the Constitution. Since these petitions deal with the same subject -matter, they were ordered to be heard disposed of together. That is, how these writ petitions are being decided by this judgment.

(2.) The submission of the learned Counsel s Yogendra Chra, Ved Prakash Shankar Trading Co. in the main, are that the forest coverage in the State of HP. is fast depleting causing imminent danger to environment. For this reason, they submit that the Central Government has framed promulgated the National Forests Policy which aims at increasing the forest coverage thereby protect environment which is so precious to human life. Pursuance to the National Forest Policy, the State of Himachal Pradesh has also framed Himachal Pradesh Forest Policy. Both these policies, according to these petitioners, discourage establishment of forest based industries. Since Katha manufacturing is forest based, establishment of industrial units for this purpose is likely to deplete kair wood forest further reduce the forest coverage. This would, according to the petitioners violate their fundamental rights under Article 21 of the Constitution It is, therefore, submitted that grant of permission to the three respondents to establish katha manufacturing Units is illegal unconstitutional. It is particularly submitted that so many katha manufacturing units cannot be support ed by the available khair wood in the State , therefore, there is imminent possibility of illicit felling which will further reduce the forest coverage. Since reduction of forest -coverage would effect the right of these petitioners to live in a pollution free atmosphere, the permission granted to the respondents Units is said to be violative of Article 21 of the Constitution These petitioners further submit that the available khair wood in the State is not sufficient to support so many industrial Units hence the petitioner Shankar Trading Company is likely to be adversely effected. This would, therefore, be violative of their fundamental rights under Article 19(n(g) of the Constitution. As regards the grant of permission by the respondent State of Himachal Pradesh, it is submitted that applications in this behalf were required to be considered by IPARA decision taken in its meeting which has not been done. The decision, according to these petitioners, has been taken by a sub -committee of IPAPA which was not lawfully constituted. More particular submission in this behalf is that IPARA itself is a body appointed by the President of India enjoying limited authority jurisdiction. Such a body could not, in law, delegate its powers functions to any one including a sub -committee of its own The recommendation of the sub -committee is, therefore, said to be illegal Then, the sub -committee did not hold the meeting but decided the matter by circulation. It is, therefore, submitted that there was no meeting of minds which is possible only when the meeting is summoned to deliberate discuss the matter in issue It is further submitted that the decision of the respondent State to grant permission to three units does not take into consideration either the National Forest Policy or the H. P. Forest Policy is otherwise arbitrary as it is not based on any reason It is also submitted that in fact there is no order in favour of the three respondents to establish their industrial units as required under Article 166 of the Constitution hence they are not entitled to establish them

(3.) The three industrial Units in whose favour the permission has been granted, have however, deny the alleged illegalities submit that permission granted to them is in accordance with the National State Forest Policies which promote export or value added products rather than raw material. They deny that there is any likelihood of illicit felling of khair trees or depletion of forests due to establishment of new Units. They further submit that availability of khair wood in the State is sufficient to sustain not only the three units but many more. They have particularly submitted that so far the State of Himachal Pradesh has been exporting khair wood was not getting any substantial benefits out of it. The policy formulated in 991 requires them to promote value added products for that purpose, the respondent State has permitted establishment of katha factories. After these factories go in production, the State would, instead of exporting khair wood, start exporting katha which will be more profitable. As regards submissions regarding invalidity of State action in granting permission, it is submitted that no law or statutory rules have been violated. The matter, according to these respondents has been considered at various levels has, therefore, received detailed consideration of the concerned authorities. The so called illegalities are also denied. These respondents particularly assert that the so called public interest claimed by the petitioner Yogendra Chra is really the interest of petitioner Shankar Trading Company both of them are colluding against new units to protect the existing Unit -Mahesh Udhyog. The petition is nothing but an attempt to create a monopoly in favour of the said Company. It is also submitted that the Writ Petition by Shankar Trading Company is really a petition by a business competitor intended to prevent entry of others in the find is an instance of misuse of the process of this Court.