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SARDAR KHAN versus VAN SANRAKSHAK/KSHETRIYA NIDESHAK SAMAJIK VANIKI & OTHERS

High Court of Judicature at Allahabad

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Sardar Khan v. Van Sanrakshak/Kshetriya Nideshak Samajik Vaniki & Others - WRIT - C No. 27433 of 2001 [2005] RD-AH 254 (25 January 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J

This writ petition is directed against the orders dated 7.7.2001 passed by respondent no. 1 and 5.10.2000 passed by respondent no.2.  The petitioner has prayed for :-

(i) quashing of the order dated 7.7.20001, annexure 9 to the writ petition, passed by respondent no. 1dismissing the appeal filed by the pettiioner against the order dated 5.10.2000;

(ii) quashing of the order dated 5.10.2000, annexure 7 to the writ petition, passed by the respondent no. 2 rejecting the application of the petitioner for grant of licence under the provisions of U.P. Establishment and Regulations of Saw Mills, 1978;

(iii) direction in the nature of mandamus commanding the respondent no. 1to grant licence to the petitioner as per provision contained in proviso to Rule 5 of the Rules

                                                            OR

              issuance of a writ in the nature of mandamus commanding the respondent nos. 1 and 2 to dispose of the application of the petitioner for grant of fresh licence under the Rules without taking into consideration the order dated 16.9.1998 passed by the respondent no. 3;

(iv) any other writ order or direction as may be deemed fit and proper by this court.

Civil Misc. Writ Petiiion No.36910 of 2000-Sardar Khan V. Prabhagiya Nideshak and others was filed by the petitioner with a prayer for mandamus for disposal of the application for grant of licence under Rules, as they stood after the amendment in 1998.  The said writ petition was disposed of with the following directions:-

              "We have heard learned counsel for the parties and have perused the record.

   The writ petition is disposed of with the direction that in case the petitioner moves a fresh application for grant of licence in accordance with U.P. Establishment and Regulations of Saw Mills Rules, 1978 as amended by U.P. Establishment and Regulations Saw Mills ( Second Amendment) Rules 1998 within a month the same shall be disposed of expeditiously keeping in view the directions issued by the Supreme Court in this regard.

Sd/- Shyamal Kumar Sen, C.J

                                        Sd/- G.P Mathur, J

                                                31.8.2000"

It is submitted by learned counsel for the petitioner that the Indian Forest Act, 1927 (hereinafter referred to as ''the Act'), has been enacted to consolidate law relating to Forests. The State Government has been clothed with the power to make rules under Section 51 of the Act in respect of the saw mills.  State legislature amended the Act by addition of Section 51-A provided for regulatory powers in respect of manufacture of articles based on forest produce and for making rules in respect of saw mills.  Relevant portion of Section 51-A for the purposes of the present case is quoted below :-

"51-A. Power to regulate, manufacture etc., of articles based on forest produce:-

The State Government may make rules

(a) to provide for establishment and regulations or otherwise and payment of fees therefor or saw mills and mills including factories engaged in the manufacture or preparation of

(i) ...

(ii) ...

(iii) ....

(iv) ....

(b)     ...."

The U.P. Establishment and Regulations of Saw Mills Rules, 1978 (hereinafter referred to as ''the Rules') were amended in 1998 by notification dated 26.6.1998.

Learned counsel for the petitioner submits that Rule 4 of the Rules  provides that any person desirous to establish a saw mill shall make an application  to the Divisional Forest Officer concerned.  Rules 6 and 7 deal with the matters regarding period of validity and renewal of licence.  He further submits that the petitioner is licence holder under various statutes, such as U.P. Krishi Utpadan Mandi Adhiniyam and U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam and was never convicted or prosecuted under Section 77 of the Indian Forests Act, 1927.  He also submits that a Public Interest Litigation being  Writ Petition (C )No. 202 of 1995- T.N. Goverdahn Thirumalpad Vs. Union of India and others  was filed before Hon'ble the Supreme Court wherein certain orders had been passed from time to time. One of the orders dated 4.3.1997 reported in T.N. Godavarman Thirmulpad Vs. Union of India -(1997)3 Supreme Court Cases -312=1997(3) J.T.-338 is to the effect that all the unlicenced saw mills should be closed forthwith.

State of U.P. filed an application for modification of orders passed by the apex court which was allowed by the apex court and orders passed in T.N. Goverdahn Thirumalpad (supra) were modified granting permission to the State to amend the Rules.  Accordingly, the State of U.P. amended the Rules with effect from 26.6.1989.

He further submits that notwithstanding the aforesaid clear position of law, the respondent no. 3 vide order dated 16.9.1998, which is quoted below, directed the respondent no.1 not to issue fresh licence:-

" fo�?; %& m0iz0 vkjk fey dh LFkkiuk ,oa fofu;eu fu;ekoyh (fOnrh; la'kks/ku) fu;ekoyh 1998 ij dk;Zokgh fd;s tkus ds laEcU/k esaA

lanHkZ %& izHkkxh; funs'kd] esjB dk Ik=kad 654@22&18 fnukad 3&8&98

     mijksDr lUnHkZ esa voxr djkuk gS fd �?klu ds i=kad 4220@ 14&2&98&403 (209) Vh0lh0 11 fnukad 26&6&98 ls la'kksf/kr fu;ekoyh tkjh dh xbZ gS A mDr fu;ekoyh esa ekuuh; mPpre U;k;ky; Onkjk fuxZr vUrfje vkns'kksa dks vfrdzfer ugha fd;k x;k gS A ekuuh; mPpre U;k;ky; ds vkns'k fnukad 4&3&97 ds vuqlkj xSj ykbZlsalh e'khuksa dk cUn fd;k tkuk gS rFkk u;s ykbZlsaUl ugha fn;s tkus gSa A

vr% of.kZr ifjfLFkfr;ksa esa u;k ykbZlsUl tkjh djuk mfpr ugha gS A

                                       g0 ,l0 lh0 tkSgjh

                                         izeq[k ou laj{kd

                                    eqY;kadu ,oa dk;Z;kstuk

                                       m0iz0 y[ku�? A  "

He also submits that the petitioner moved an application on 13.5.2000 before respondent no. 1 for renewal of his licence and in the alternate prayed for issuance of a fresh licence. He also moved an application on 13.5.2000 before respondent no. 2 for grant of no objection certificate under Rule 5(iv) of the Rules with retrospective effect i.e. from 1985.  The application of the petitioner dated 13.5.2000 was rejected by the respondent no. 4 vide order dated 31.5.2000/1.6.2000 on the ground that in view of the direction of the apex court in T.N. Goverdahn Thirumalpad (supra) licence cannot be granted.  The petitioner again moved an application with a reminder on 27.9.2000 for grant of licence. This application was rejected by respondent no. 2 on 5.10.2000 on the ground that in view of the order dated 4.9.1997 passed by Hon'ble the Supreme Court in Civil Misc. Writ Petition no. 202 of 1995 as also on account of orders of the Chief Conservator of Forests that no licence can be issued to the petitioner.

The petitioner filed appeal under Rule 10 of the Rules, which too was dismissed by the respondent no. 1 on 7.7.2001 holding that in view of orders of the apex court dated 4.3.1997, it was not possible to grant fresh licence and that no permission could be granted to run the saw mill to anyone without having a licence.

Counsel for the petitioner has vehemently urged that a perusal of the aforesaid order dated 7.7.2001 reveals that while passing the same, the respondent no. 1 was under the impression that what was being disposed of by him was an application/representation to permit  him to run the saw mill and did not apply his mind as to whether his application could be allowed under the amended Rules or not.  He submits that legal position has changed after the amendment made in the Rules in 1998 and on the own showing of the department the petitioner had complied with all requisite formalities of law as is evident that he was neither convicted nor prosecuted under Section 77 of the Act.  He also urged that it is evident that the amended rules do not offend any direction of the apex court contained in T.N. Goverdahn Thirumalpad (supra) dated 4.7.98 and the respondents and their officers are under statutory obligation to comply with the same.  He relied upon Division Bench decisions dated 16.12.1998 in Civil Misc. Writ Petition No. 14273 of 1998- Satish Kumar V. State of U.P. and others dated 12.9.2000 in Civil Misc. Writ Petition No. 40317 of 2000 Mahmood Hasan Vs. The Kshetriya Nideshak/Van Sanrakshak.

Learned Standing counsel appearing on behalf of the State has vehemently opposed the petition.  He drew the attention of the court to the averments made in paragraphs 1,3,6,7 and 8 of the application dated 13.3.2000 of the petitioner, contained in Annexure 3 to the writ petition wherein it has been stated that the petitioner has been running the saw mill from 1985 without any valid licence. The petitioner in the aforesaid application has averred that he had paid the registration fee but licence was not issued to him; that he has never contravened any provision of the Act and that he is entitled to renewal/issuance of fresh licence under the Rules as his saw mill is registered.  Paragraphs 1,3,6,7 and 8 of the aforesaid application are quoted hereinbelow :-

" ;g fd izkFkhZ o�?Z 1985 ls viuh vkjk e'khu pyk jgk gS vkSj fnukad 27&6&85 dks mlus mRrj izns'k vkjk fey dh LFkkiuk vkSj fofu;kekoyh 1978 ds vUrxZr ykbZlsaUl@jftLVzs'ku �?qYd tek fd;k Fkk] ijUrq dk;kZy; usa ykbZlsUl decree holder dkQh nsusa esa Hwky ,oa pwd dh gS A

2&  &&&&

3& ;g fd izkFkhZ 1985 ls yxkrkj viuh vkjk e'khu pykrk jgk vkSj mlus dHkh Hkh Hkkjrh; ou vf/kfu;e 1927 vFkok fdlh dkuwu dk dksbZ mYya/ku ugha fd;k vkSj u gh mlds fo:) dHkh dksbZ eqdnek pyk A

4& &&&&

5& &&&&

6& ;g fd izkFkhZ lnSo ;g dgrk jgk gS vkSj vc Hkh dg jgk gS fd og uohuhdj.k dk vf/kdkjh gS] ijUrq fQj Hkh ;fn vf/kdkjhx.k bl er ds gksrs gSa fd mls u;k ykbZlsaUl ysuk pkfg, rks og fodYi ds :Ik esa izkFkZuk djrs gq, izkFkZuk djrk gS fd mls ykbZlsUl iznku djus ds vkns'k ikfjr djus dk dIV djsa A

7& ;g fd izkFkhZ ;g nksgjkuk vko';d le>rk gS fd og la'kksf/kr fu;eks ds vUrxZr lHkh 'krksZ dks iwjk djrk gS A

8& izkFkhZ decree holder vkjk fey fu;eiwoZd jftLVMZ gS vkSj mldks vkids Onkjk jftLVMZ u ekuus dh =qfV gqbZ gS A"

The prayer of the petitioner in the application dated 13.3.2000 is for registration/renewal of licence and issuance of no objection certificate w.e.f. 1985, as under :-

" fuosnu gS fd izkFkhZ lu 1985 ls vkjk e'khu fLFkr dLck tykykckn esa pyk jgk Fkk ftldk jftLVzs'ku@ykbZlsaUl uohuhdj.k gksuk vko';d gS A bl dk;Z ds fy, vukifRr izek.k i= dh vko';drk gksrh gS A izkFkhZ fu;eksa esa nh x;h lHkh 'krksZa dks iw.kZ dj jgk gS A izkFkhZ dk jftLVzs'ku@ykbZlsUl uohuhdj.k gsrq vukifRr izek.k i= tkjh fd;k tkuk vko';d gS A

vr% Jhekuth ls izkFkZuk gS fd izkFkhZ dks o�?Z 1985 ls fLFkr vkjk e'khu jftLVzs'ku@ykbZlsUl ds uohuhdj.k gsrq vukifRr izek.k i= tkjh djusa decree holder dzz¤ik djsa A vkidh vfr dqik gksxh A  "

The aforesaid application was rejected by order dated 31.5.2000 by the competent authority on the following grounds :-

"1& izR;kosnu dk fcUnq ,d ekU; ugha gS A ek= ,d o�?Z ( 1985 ) dh ykbZlsUl Qhl ekg twu 1985 esa tek djuk gh Ik;kIr ugha gS A m0iz0 vkjk e'khu LFkkiuk ,oa fofu;eu fu;ekoyh 1978 ds izkfo/kkuksa ds vUrxZr ykbZlsUl izkfIr gsrq vU; vkSipkfjdrk,a iw.kZ djuh gksrh gSa tks vki Onkjk le;kUrZxZr iw.kZ ugha dh xbZ ! ftlds dkj.k vkidh rRdkyhu le; esa vkjk e'khu ykbZlsUl ugha fn;k x;k A orZeku esa �?k- vk0 la0 739@14&2&687@1988 fnukad 26&7&89 ds dze esa mDr fnukad ds I'pkr fdlh Hkh viathd`r vkjk e'khu dks u;k ykbZlsUl nsus ij iw.kZ izfrcU/k yxk;k x;k gS A blh ds lkFk lkFk ek0 loksZPp U;k;ky; ubZ fnYyh Onkjk fjV la0 202@95 Vh0,u0 xksMceZu cuke ljdkj esa fuxZr vkns'k fnukad 4&3&97 ds iSjk 4 esa LhHkh xSj ykbZlsaUlh vkjk e'khuksa dks rRdky izHkko ls cUn djus ds vkns'k fn;s x;s Fks rFkk ;g Hkh vknsf'kr fd;k x;k Fkk fd ykbZlsUl nsus dh izfdz;k esa fdlh izdkj dh NwV (fjysD'ks'ku )Z u nh tk;s ! ;g vkns'k orZeku esa Hkh izHkkoh gSa

2& izR;kosnu dk fcUnq 2 ekU; ugha gSa ! m0iz0 vkjk fey fu;ekoyh 1978 ds izkfo/kkuksa ds vUrxZr tkjh ykbZlsaUl /kkjh e'khu gh fof/kd :Ik ls iathd`r vkjk e'khu ekus tk;saxs A vU; lHkh vkjk e'khu xSj ykbZlsUlh vkjk e'khu dh Js.kh esa vkrh gSa A

3& ekU; ugha gS A xSj ykbZlsUlh vkjk e'khu ekfydksa Onkjk ek= blh vk/kkj ij ykbZlsUl izkIr ugha fd;k tk ldrk A foLr`r fooj.k bl i= ds fcUnq ,d esa fn;k x;k 1 4 Lok Sabha 10 rd & izR;kosun ds fcUnq 4 ls 10 rd ekU; ugha gS ! foLr`r fooj.k bl i= ds iSjk ,d esa fn;k x;k gS A ek= ,d o�?Z dh ykbZlsUl Qhl tek djuk gh ykbZlsaUl izkfIr ugha gS A vkids Onkjk ykbZlsUl izkfIr gsrq vU; vkSipkfjdrk,a iw.kZ u fd;s tkus ds dkj.k ykbZlsaUl tkjh ugha fd;k x;k A orZeku esa �?klu@ek0 loksZ0 U;k;ky; ds funs'kkuqlkj vkjk e'khu lapkyu gsrq u;k ykbZlsUl tkjh djus ij iw.kZ izfrcU/k yxk;k x;k gS A tgkW rd ykbZlsUl uohuhdj.k dh ekWx vki Onkjk mBkbZ x;h gS og Hkh lEHko ugha gS] D;ksafd tc vki Onkjk m0iz0vkjk fey fu;ekoyh 1978 ds izkfo/kkuksa ds vUrxZr fof/kd ykbZlsUl foHkkx ds le;kUrZxZr izkIr gh ugha fd;k x;k gS rks ykbZlsUl uohuhdj.k dk dksbZ vkSfpR; ugha gS "

Relying upon the averments made in the counter affidavit, the Govt. Counsel submits that the petitioner was never issued licence to run the saw mill. It is urged that merely because the petitioner had deposited certain amount towards fee for issuance of licence, it does not entitle him to run the saw mill untill the licence was issued to him and that the restrictions imposed by the apex court have not been removed in the Amended Rules, 1998.  He submits that any licence issued to the petitioner under U.P. Krishi Utpadan Mandi Adhiniyam and U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam is irrelevant for the purposes of running the saw mills under the provisions of the Indian Forest Act and the Rules framed thereunder. Therefore, the authorities below were justified in passing orders  dated 16.9.1998 and 7.7.2000. These orders, it is submitted, were passed after considering all the materials available on record.  

In Handicrafts Emporium V. Union of India (2003) 7 S.C.C-589; Balram Kumawat Vs. Union of India (2003) 7 S.C.C-62 and State of Bihar Vs. Kedar Sao (2003) 6 Scale-639, the concern of the Hon'ble Supreme Court is reflected. In State of West Bengal V. Sujit Kumar Rana (2004) 4 S.C.C- 129,the apex court has held as under :-

" The State Legislature of West Bengal has inserted the said provisions (relating to seizure and confiscation) with a laudable object.  Forest is a national wealth which is required to be preserved. In most of the cases, the State is the owner of  the forests and forest produce.  Depletion of forest would lead to ecological imbalance. It is now well settled that the State is enjoined with a duty to preserve the forests so as to maintain ecological balance, and, thus, with a view to achieve the said object forests must be given due protection.  Statutes which provide for protection of forests to maintain ecological balance should receive liberal construction at the hands of the superior courts.  Interpretive exercise of such power should be in consonance with the provisions of such statutes not only having regard to the principle of purposive construction so as to give effect to the aim and object of the legislature; keeping the principles contained in Articles 48-A and 51-A (g) of the Constitution of India in mind.  The provisions for confiscation is not made.

The Supreme Court, however, is not oblivious of the fact that whereas the courts must give purposive construction to the provisions of such statutes which also be borne in mind that illegal seizure amounts to deprivation of property and by reason of an order of confiscation, the owner thereof is deprived of his right of property as contained in Article 300-A of the Constitution of India.  The rights of the parties are, therefore, required to be delicately balanced."

In paragraphs 14,15,10,20,22, 23, 24, 25, 25,26,30.31,32,34,35, 40,42, and 43 in T.N.Godavarman Thirumalpad V. Union of India (2002) 10 S.C.C-606,it has been held that :-

" ''Environment' is a difficult word to define.  Its normal meaning relates to the surroundings, but obviously that is a concept which is relatable to whatever object it is which is surrounded.  Environment is a polycentric and multifaceted problem affecting the human existence. (paras 14,15).

The Stockholm declaration of the United Nations on Human environment, 1972 suggests safe actions with prudent care for maintaining an ecological balance.  It is necessary to avoid massive and irreversible harm to the earthly environment and strife for achieving for the present generation and the posterity a better life in an environment more in keeping with their needs and hopes. (paras 15 and 16).

Environmental law is an instrument to protect and improve the environment and to control or prevent any act or omission polluting or likely to pollute the environment.  In view of enormous challenges thrown by the industrial revolution, the legislatures throughout the world are busy in this exercise.  Many have enacted laws long back and they are busy in remodelling the environmental law. The problem of law-making and amending is a difficult task in this area. There are a variety of colours to this problem.  In this whole gamut of problems the Tiwari Committee came out with the data that we have in India " nearly five hundred environmental law" and that no systematic study had been undertaken to evaluate those legislative developoments. (para 19)

Environmental pollution was controlled rigidly in the ancient times.  It was not an affair limited to an individual or individuals but the society as a whole accepted its duty to protect the environment (para 20)

The issue of environment is a big issue in political terms, since protection of the environment is high on most people's priorities for the 1990s. (para 22)

Apart from the direct cost to business of complying with stricter regulatory controls, the potential liabilities for non-compliance are also increasing.  These liabilities fall into five general categories (a) criminal liabilities, (b) administrative liabilities (c ) clean-up costs (d) civil liability, and (e) adverse publicity. (para 23)

The tide of judicial considerations in environmental litigation in India symbolizes the anxiety of courts in finding out appropriate remedies for environmental maladies.  At global level, the right to live is now recognized as a fundamental right to an environment adequate for health and well-being of human beings. (para 24)

Progress and pollution go together. When science and technology are increasingly employed in producing goods and services calculated to improve the quality of life, there is a certain element of hazard or risk inherent in the very use of science and technology and it is not possible to totally eliminate such hazard or risk altogether.  There is increase in awareness of the compelling need to restore the serious ecological imbalances introduced by the depredations inflicted on nature by man (para 25 and 26)

To protect and improve the environment is a constitutional mandate.  It is a commitment for a country wedded to the ideas of a welfare State.  The trees, water, land and animals had gained important positions in the ancient times.  (para 29 and 30).

There may be boundless progress scientifically which may ultimately lead to destruction of man's valued position in life.  The Constitution has laid the foundation of Articles 48-A and 51-A for a jurisprudence of environmental protection. Today, the State and the citizen are under a fundamental obligation to protect and improve the environment, including forests, lakes, rivers, wildlife and to have compassion for living creatures. (para 31).

Man is nature's best promise and worst enemy.  If industry is a necessity, Pollution is inevitable.  Since progress and pollution go together, there can be no end of progress, and consequently, no escape from pollution.  If industry is a necessary evil, pollution surest sufferance.  Several enactments have been made to combat pollution.  ''Pollution' is a noun derived form the transitive verb ''pollute' which means to make foul or unclean, dirty, to make impure or morally unclean. (para 32)

The aesthetic use and the pristine glory cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for public good and in public interest to encroach upon the said resources.(para 34)

No development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment.  A balance has to be struck between the two interests.  Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed.  The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship. (para 35).

Sustainable development is essentially a policy and strategy for continued economic and social development without detriment to the environment and natural resources on the quality of which continued activity and further development depend. Therefore, while thinking of the developmental measures the needs of the present and the ability of the future to meet its own need and requirements have to be kept in view (para 40).

The Union Government framed the National Forest Policy in 1988.  It reflects the anxiety of the Union Government to protect and preserve natural forests with a vast variety of flora and fauna, representing biological diversity and genetic resources of the country. (para 42)

Duty is cast upon the Government under Article 21 to protect the environment and the two salutary principles which govern the law of environment are: (i) the principles of sustainable development and, (ii) the precautionary principle.  The Convention of Biological Diversity has been acceded to by the country and, between the domestic law and the international conventions, the rule of judicial construction in that regard must be had to international conventions and norms even in construing the domestic law.  It is, therefore, necessary for the Government to keep in view the international obligations while exercising discretionary powers under the Conservation Act unless there are compelling reasons to depart therefrom.(para 43)"

Similarly in Hinch Lal Tiwari v. Kamala Devi (2001) 6 S.C.C-496, it has been held by the apex court that :-

" The material resources of the community like forests, tanks, ponds, hillock, mountain etc., are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and  healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e., Respondents 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention on developing the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large.  Such vigil is the best protection against Knavish attempts to seek allotment of non-abadi sites (para 13)"

Thus, following facts emerge from the record:-

(i) He moved application for renewal/issuance of new licence in 2000 with retrospective effect i.e., w.e.f. 1985 in order to legalize his illegal acts, trade and business;

(ii) He had no licence  when he applied for same vide application dated 13.3.2000. He was never issued licence and a licence which has never been issued cannot be renewed.

(iii) The aforesaid application was moved by him to circumvent the law in the garb of the judgement of the apex court and the amended rules.

(iv) The petitioner has acquired wealth by destroying forest without any authority of law and has evaded payment of taxes and lawful dues of the Government.

It is admitted case of the petitioner that he deposited some fee for issuance of licence in 1985 for registration of the saw mills but licence was not granted to him as he had not completed the requisite formalities. Even if he had been issued licence in 1985, it could have been valid for the period of one year only.  Admittedly, neither licence was issued to the petitioner nor he thereafter deposited any licence fee nor completed the formalities and has been running the saw mill illegally w.e.f. 1985, as is apparent from paragraphs 1,3,6,7 and 8 of his application, quoted in the body of this judgement.  Even if it is assumed that the saw mill of the petitioner was registered, it does not give him any legal right to run the saw mill without a licence to run the same.

There is no averment in the writ petition that the petitioner has stopped his illegal activities when he was declined licence and his application and appeals had been rejected by the concerned authorities.  The apex court, time and again, has shown concern upon the indiscriminate theft of natural resources and disturbance of ecological balance. The effect of the Indian Forests Act and the Rules is to preserve the forests and maintain ecological balance.  It is laudable object and forest being national wealth necessary for maintenance of ecological balance, must be preserved.  Indiscriminate cutting of trees in irresponsible manner leads to depletion of forest and destroys flora and fauna resulting in ecological imbalance.

By protection of environment, human right to live enshrined in Article 21 of the Constitution is protected.  Forests being ''element of sustainable development' are required to be protected by strict enforcement of laws.  Convenience to the individual of grant of licence for trade or business attracting Art. 19(1) of the Constitution for running saw machine cannot be given precedence over right to live of larger section of the society, particularly to people such as the petitioner who is running the saw mill illegally, admittedly without any valid licence.  Such illegal activities of the petitioner cannot be regularised either by the authorities or by the court on the ground that the petitioner has right to trade or business because of non grant of licence would lead him to discontinue his business.  As held by the Hon'ble supreme Court in T.N. Godavarman Thirumalpad V. Union of India ((supra) a balance has to be struck between the two interests by following comparative hardships.

For these reasons and in view of the law I do not find any illegality or infirmity in the impugned orders dated 7.7.2001 and 5.10.2000 passed by respondent authorities.   The Forest as well as other authorities may take action against the petitioner in respect of illegal running of the saw mill since 1985.  

The writ petition is accordingly dismissed without any order as to costs.

Dated 25.1.2005

kkb


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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