IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 12012 of 2007 Between: Sri Venkateswara Saw Mill & depot, Utnoor, Adilabad District, rep. by its Proprietor, S.K. Dharmapuri, S/o.Sailoo. ..... PETITIONER AND 1. Government of Andhra Pradesh (Environment, Forests, Science & Technology) department, rep. By Special Chief Secretary to Government, at Secretariat, Hyderabad. 2. The Principal Chief Conservator of Forests, Adilabad Circle, Adilabad District. 3. The Divisional Forest Officer, Adilabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ in the nature of Writ of Mandamus or any other appropriate writ or Writs, order or direction, declaring and setting aside the order dt. 3.5.2007 in Lr.No.550/ForIII/07-5 on the file of the first respondent and the order dt. 5 12 2006 in Rc.No. 875/2003- S7-Vol-II on the file of the third respondent as illegal, arbitrary and without jurisdiction and to consequently direct the third respondent herein to forthwith grant licence to the petitioner pursuant to its representation dt. 26.10.2006; Award costs and pass such other or further orders as are deemed fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.K.RAGHUVEER REDDY Counsel for the Respondent No.: GP FOR FORESTS The Court made the following : THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.NO.12012 OF 2007 & W.P.M.P.No.20598 of 2007 ORDER: This writ petition has been instituted questioning the action of the respondents in insisting the petitioner to shift his Sawmill and Timber Depot to any place beyond the 5 kilometres distance from the boundary of the reserve forest. The facts, which are relevant, are that originally Sri S . Gangaram Sawmill established the Sawmill in Sy.No.602/B of Utnoor Gram Panchayat of Adilabad District. The petitioner has taken over the said Sawmill. He submitted an application in August 2001 seeking permission to shift the said Sawmill from Sy.No.602/B to Sy.No.217, Harkapur of Utnoor Gram Panchayat and the name of the Sawmill is changed as “Sri Venkateswara Sawmill” and a fresh registration under Andhra Pradesh General Sales Tax Act, is also obtained in the name of its proprietor Sri S.K. Dharmapuri. The license of the Sawmill was renewed for the year 2002-03. However, the license was cancelled by the Proceedings dated 22- 11-2003 on the ground that the Sawmill is located within 1½ kilometers of reserve forest area contrary to the Andhra Pradesh Sawmill (Regulation) Rules, 1969. The petitioner challenged the same by instituting W.P.No.25865 of 2003. The said writ petition was allowed directing the 3rd respondent to issue notice to the petitioner and after considering the explanation submitted by the petitioner, to pass appropriate orders thereon. Thereafter, another order came to be passed on 15-04- 2004 by the 3rd respondent rejecting the application for renewal of the Sawmill. Against this order of rejection of renewal of the Sawmill, the petitioner filed Review before the State Government under Section 66 of the Forest Act. The said Revision was allowed by the State Government by its orders passed in G.O.Rt.No.176, Environment, Forests, Science & Technology (For..III) Department, dated 24-06-2004. The operative portion of the orders passed by the State Government read as follows: “2. Government after careful consideration and also in view of the compelling circumstances of the case, have allowed the revision petition and hereby order that the licence of Sri Venkateswara Saw Mill-cum-Deport, Harkapur Colony, Utnoor, Adilabad district be renewed for the period applied by its owner Sri S.K.Dharmapuri in the ref.5th cited since he has paid the requisite fee v i d e chalan No.2193, dt.29.10.2003(for 3 years). 3. The Prl.Chief Conservator of Forests is requested to take necessary action accordingly and report compliance. The petitioner should be directed by the end of this licence period to move out beyond the statutory 5 kms radial distance and the license would not be renewed again, unless the concerned DFO certifies that there indeed is no suitable site within 65 kms radius.” Subsequently, after the expiry of this period of three years, the petitioner submitted an application for renewal of license along with requisite fee, but, without renewing the license, as solicited, orders have been passed by the 3rd respondent in his Proceedings dated 05-12-2006, directing the petitioner to comply with the orders passed by the State Government to shift his Sawmill beyond 5 kilometres radial distance from the reserve forest on or before 31-12-2006. The petitioner has once again approached the State Government on 10-01-2007 seeking its intervention. The State Government passed orders on 03-05-2007 in their letter No.550/For.III/07-5, pointing out that the request could not be considered as it is not feasible in view of the orders passed by the State Government earlier through their Memo. Dated 15-10- 2005. It will be appropriate to notice that the State Government has insisted the petitioner to shift and relocate his Sawmill at a distance beyond 5 kilometres from the boundary of the reserve forest. Therefore, the petitioner has filed W.P.M.P.No.20598 of 2007 seeking amendment of the prayer of the writ petition, thus, mounting a challenge to the order passed by the State Government in their G.O.Rt.No.176, dated 24-06-2004, insisting upon the petitioner to shift his Sawmill, as noted supra. The learned counsel for the petitioner has placed reliance upon a judgment of a Division Bench reported in DIVISIONAL FOREST OFFICER, KAGHAZNAGAR, ADILABAD DISTRICT AND ANOTHER v. SREE VENKATESWARA SAW MILLS[1], which considered Rules 3 and 5 of the A.P. Saw Mill (Regulation) Rules, 1969 and concluded that the bar to grant licences for setting up Sawmills thin a distance of 5 kilometres radius from the reserve forest boundary could be attracted only in cases of fresh licences and does not apply to an existing Sawmill from being shifted from one locality to another. The Division Bench has concluded the said issue in the following manner: “ Undoubtedly, an existing saw mill could be shifted to another location within the same forest division but only after prior approval of the licensing authority – in the instant case, the Divisional Forest Officer, under Rule 5(4) of rules. The bar contained in sub-rule(2) of Rule 3 applies only for setting up fresh saw mills. If the argument of the learned Government Pleader for Forests is accepted that the bar contained sub- rule (2) of Rule 3 would also apply to the shifting of the existing saw mills, then, we are of the considered opinion that the word “fresh” occurring in sub- rule (2) of Rule 3 of the rules would be rendered redundant and surplusage. It is well settled principle of construction of statute that no such interpretation can be placed to render any word or expression used in a statute waste or surplusage. The rule making authority, in its wisdom, with clear intendment has specified that the bar contained in Rule 3(2) is applicable only to the setting up of ‘fresh’ saw mills and, therefore, that bar cannot be applied to the shifting of the existing saw mills.” The 3rd respondent has filed the counter affidavit in the main case as well as in the miscellaneous petition. The case of the respondents is that the State has taken a policy decision not to allow establishment of Sawmills within a distance of 5 kilometres from the boundary of the reserve forest and that certain measures have been put in place to achieve this objectve. According to the respondents, the A.P. Sawmill (Regulation) Rules, 1969 do not permit or allow establishment of Sawmills within a distance of 5 kilometres radius from the boundary of the reserve forest. In Rule 2, the expression “Sawmill” has been given the following definition: “Saw Mill” means a mechanical contrivance for sawing, cutting, or conversion of timber (with the aid of electrical or Mechanical power) and includes the premises but does not include a contrivance operated solely by manual power.” Rules 3 and 5 will have a bearing upon the present controversy and hence, it will be profitable to extract them in toto: “Rule 3(1) No person shall install, erect or operate a Saw Mill for cutting, converting or sawing of timber without obtaining a licence for such installation from the Licensing Authority. 3(2) N o licence for setting up fresh saw mills within a distance of 5 Kms from the boundary of any Forest under the control of the Forest Department whether notified or not shall be granted, except when it is required for Departmental use. 3(3) The distance of 5 Kms shall be computed from topo sheets as aerial distance as crow flies. Rule 4 xxxxxxxxxxxxxx. Rule 5(1) E very licence granted under Rule 4 shall, subject to provisions of Rule 9, be effective from the date of issue or from the date of expiry of the period specified in the proviso to Clause (a) of sub-rule (1) of Rule 4, as the case may be, to the 31st December of the year upto which licence is granted, both days inclusive. Note : F o r licences granted to the existing Saw Mills before 3rd October, 1998 (i.e., from 3.8.1998 to 3.10.1998) the period of validity shall be as follows, namely : (i) One year licence from the date of issue to 31.12.1999 (ii) Two years licence from the date of issue to 31.12.2000 (iii) Three years licence from the date of issue to 31.12.2001. 5(2) The licence granted under these rules for saw mills located within five kilometers of forest boundary shall not be transferable. 5(3) The saw mill machinery and premises shall not be leased to any person without intimation of the licensing authority. For any acts of omission of lessee, licence holder shall be held responsible. 5(4) In case the saw mill premises is to be changed, or when the machinery is to be shifted from one place to another within same forest division, such changes should not be done without prior approval of licensing authority.” From a perusal of the above Rules, it would emerge that prior to installation, erection or operation of a Sawmill, license in that regard should be obtained from the Licensing Authority. Further, no license for setting up a fresh Sawmill within a distance of 5 kilometres from the boundary of any forest, whether notified or not, shall be granted, except when it is required for departmental use. Rule 5 dealt with the manner in which the license has got to be sanctioned. Subrule (2) thereof has imposed an embargo upon the transferability of a license granted to a Sawmill located within 5 kilometres of forest boundary. Therefore, a combined reading of Rules 3 and 5 make the position clear that no fresh license for establishment of a Sawmill within 5 kilometres distance from the boundary of a reserve forest, whether notified or not, shall be granted and that any such license existing in favour of a Sawmill, which is already located within the 5 kilometres distance, is to be transferred. In other words, the existing Sawmills, which are located within 5 kilometres distance from the boundary of a reserve forest, are not totally prohibited from being operated upon by the licensee concerned. In the instant case, the petitioner has pleaded that the license originally granted in favour of Sri S.Gangaram to operate the Sawmill, which is located within the 5 kilometres distance from the boundary of the reserve forest, is what is sought to be transferred in favour of the petitioner upon acquisition of the interests of Sri S.Gangaram. Such a transfer has been ordered in August 2001 and the petitioner was also accorded permission to relocate the Sawmill from Sy.No.602/B to Sy.No.217, Harkapur of Utnoor Gram Panchayat. Therefore, the question that is to be answered now is whether the transfer of license in favour of the petitioner and his application for renewal of the license does amount to granting permission for establishing a new Sawmill at all or not. It is common ground that the State Government has taken a policy decision and announced various measures for the purpose of conserving the forests in the State. It will be important to notice that the State Government has taken such a decision pursuant to the judgment rendered by the Supreme Court on 30-10-2002 in W.P.No.2002 of 1995, instituted by SRI T.N.GODAVARAMAN THIRUMALPAD v. UNION Of INDIA AND OTHERS. The policy decision of the State Government has been notified through their G.O.Ms.No.91, Environment, Forest, Science & Technology (For.III) Department, dated 11-07-2006. The guidelines concerning shifting and transfer of the Sawmills have ben approved by the State Government through this G.O. On the ownership issue, the State Government has permitted transfer of ownership by way of a sale, inheritance, division of property, family arrangements and dissolution of partnership or by lease of Sawmill. Therefore, the transfer of ownership of the Sawmill in favour of this petitioner, which took place by way of a sale from Sri S.Gangaram, does not fall foul of the scheme of guidelines approved by the State Government and announced through their G.O.Ms.No.91, dated 11-07-2006. On ‘relocation’ the State Government has set out in the aforementioned G.O., as under: “1. No relocation shall be allowed into the area prohibited under A.P. Saw mill Rules. It means no saw mill shall be shifted from outside of 5 km radius from the forest area to within 5 km of forest area. However, shifting will be allowed from within the 5 km of forest area to outside.” This decision indicates that no relocation of a Sawmill shall be allowed in any area prohibited under the A.P. Saw Mill (Regulation) Rules. While trying to explain this policy measure, it has been indicated that no Sawmill shall be allowed to be shifted from outside the 5 kilometres radius from the boundary of a reserve forest to any location within the 5 kilometres radius of the forest area. It was also clarified that shifting will, however, be allowed, of Sawmills, which are located within the 5 kilometres radius to outside the 5 kilometres radius. This measure, which has been put in place by the State Government as a measure of compliance with the directions issued by the Supreme Court in its order passed on 30-10-2002, is primarily intended as a policy measure of conserving the forests. The State Government, obviously, considered maintaining a distance of 5 kilimetres as a safe distance from the boundary of the reserve forest for establishing of Sawmills. This could be a measure considered to be effective to prevent any unauthorized or illegal felling or conversion of the trees into timber. However, the State Government has not made its position explicitly clear as to whether it is also not allowing existing Sawmills located within the 5 kilometres radius from the boundary of the reserve forest, to be allowed to operate or not and as to whether such Sawmills are also required to be relocated at any place outside the 5 kilometres radius. If the existing Sawmills are allowed to operate even though they are located within the 5 kilometres distance from the reserve forest boundary, then, perhaps, the question of their relocation, which has been sought to be prohibited by G.O.Ms.No.91, does not arise. In the instance case, relocation of the Sawmill by the petitioner from the previous Sy.No.602/B to Sy.No.217, Harkapur of Utnoor Gram Panchayat, has been ordered in August 2001 itself. No doubt such an action of allowing a transfer of the license in favour of the petitioner may not have been in conformity with Subrule (2) of Rule 5 of the A.P. Sawmill (Regulation) Rules, 1969. Clearly, the petitioner has not been put on a notice of any such violation of Subrule (2) of Rule 5, before the State Government, while entertaining his Revision, passed orders through its G.O.Rt.No.176, dated 24-06- 2004. However, the State Government is seeking to recall the transfer of license, which was standing earlier in the name of Sri S.Gangaram, which is now sought for transfer in the name of the Proprietor of Sri Venkateswara Sawmill and Depot Sri S.K.Dharmapuri, as it is contrary to Subrule (2) of Rule 5. An opportunity must have been specifically afforded in this regard to the petitioner so as to make out his case specifically. Clearly, the petitioner has been denied a fair opportunity to putforth his case. If, on the other hand, the State Government, as a policy measure is insisting for relocation of the Sawmills, which are existing and which are located within the prohibitory distance of 5 kilometres from the boundary of a reserve forest, the case should have been so specifically put against the petitioner. While granting renewal such a condition requiring the relocation of the Sawmill after a certain period could not have been incorporated as a condition. If the State Government has taken any such policy measure, it must have announced the same, or if the State Government has been contemplating to read such a measure in the guideline No.1 on the issue of relocation announced in G.O.Ms.No.91, dated 11-07-2006, referred to supra, the same also requires to be specifically adverted to. There is also one other reason that the policy measures announced by the State Government through their G.O.Ms.No.91, notified on 11-07-2006, as to whether they will also be applicable to cases like that of the petitioner also, need to be considered. Since, the petitioner has been denied an opportunity to putforth effectively his case, I consider the action of the State Government in passing the orders in their G.O.Rt.No.176, as opposed to principles of natural justice. No person shall be condemned unheard. This right is too basic and elementary principle, to be allowed to be breached. The petitioner shall be provided a specific opportunity by putting him on a clear notice of the case against him by the respondents before passing any order against him. I, therefore, set aside the order passed by the State Government in their G.O.Rt.No.176, Environment, Forests, Science & Technology (For..III) Department, dated 24-06-2004 and remit the matter back to the State Government for consideration afresh. I hope and trust that a decision considered appropriate on merits would be taken and communicated to the petitioner within a maximum period of three months from the date of receipt of a copy of this order. The writ petition, therefore, stands allowed to the extent indicated above. -------------------------------- Nooty Ramamohana Rao, J mrk June 2008 ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KURR} [1] 2002(4) ALD 55 (DB)