IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FOURTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.11635 of 2003 Between: Shri Venkateshwara Saw Mill & Depot Sy.No. 217/3, Harkapur Colony Utnoor, Adilabad District rep. by its Proprietor Shri S.K. Dharmapuri ..... PETITIONER AND 1 The Conservator of Forest Adilabad Circle, Adilabad. 2 The Divisional Forest Officer Adilabad, Adilabad District. 3 The Divisional Forest Officer vigilance-I, O/o. Principle Chief Conservator of Forest , Hyderabad. 4 Divisional Forest Officer Flying Squad, Mancherial Adilabad District. 5 The Sub Divisional Forest Officer Utnoor, Adilabad. 6 Forest Range Officer Utnoor, 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 an appropriate writ, order or direction particularly a writ in the nature of Mandamus declaring the proceedings in R.C. No. 4918/2002-S3 dated 20-2-2003 issued by the Divisional Forest Oﬃcer, Adilabad the 2dn respondent herein and the orders in proceedings No.1502/2003-M5 dated 5-5-2003 of the Conservator of Forest, Adilabad, the 1st respondent herein and the consequential orders in R.C. No. Saw Mills/03/UTR dated 28-4-2003 issued by the Sub Divisional Forest Oﬃcer, Utnoor, the 5th respndent herein as illegal, arbitrary and violative of Article 14, 19(1)(g) and 21 of Constitution of India and Principles of Natural justice and consequently direct the 2nd respondent herein to permit the petitioner to run the saw mill cum depot by issuing necessary licence and permits and to pass such other order or orders as this Hon’ble Court may deem ﬁt and proper in the circumstances of the case. Counsel for the Petitioner: SRI M.DHANANJAY REDDY Counsel for the Respondents: G.P FOR FORESTS The Court made the following : THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.11635 of 2003 ORDER: The petitioner is a proprietary concern, which was granted a licence under the Andhra Pradesh Saw Mills (Regulation) Rules, 1969 (the Rules, for brevity), and is represented by its Proprietor. The licence granted on 19.01.2002 was valid up to 31.12.2002. The Divisional Forest Officer, Vigilance (hereafter called, Vigilance DFO), in the Oﬃce of the Principal Chief Conservator of Forests (PCCF), Hyderabad, inspected the petitioner’s saw mill on 27.07.2002. On the ground that there were irregularities in the disposal of timber, he registered a case, being POR No.13/782, dated 05.08.2002, and also directed the subordinates to seize saw mill implements. Proceedings were initiated for revocation of saw mill licence as per Rule 9 of the Rules. While these proceedings are pending, the Divisional Forest Oﬃcer, Flying Squad (hereafter called, FSDFO), Mancherial, inspected the saw mill on 08.02.2003, conducted physical veriﬁcation of timber and sawn timber with reference to book balance and found that the petitioner allegedly disposed of excess of 11.264 Cmt sawn timber valued at Rs.3,04,251/-. The second respondent issued a show cause notice to the petitioner on 15.12.2002 based on the inspection report of Vigilance DFO. The petitioner was called upon to submit explanation with regard to irregularities pointed out by Vigilance DFO, which are as below. 1. The reasons for not getting the teak logs brought from Velganoor patta through TPs where in the volume was calculated basing on the basal girth instead of mid girth against the rules (except one TP). 2. The reasons for transporting and converting teak fuel in the sawmill though he was permitted to trade/store only teak timber. 3. During the calendar year of 2002 upto 26.07.2002 has traded over 190 cum against the permitted volume of 150 cum in a calendar year. 4. The reasons for installing two vertical saws and one horizontal saw instead of one vertical saw and to horizontal saws as permitted by the licensing authority. 5. Allowing the Forest Range Oﬃcer, Utnoor to write the sawmill registers. 6. Parata of 2.06 cum was included in the opening balance at later date and it has not been attested by any. If previous year balance of parata forms part of conversion, the quantity of parata obtained on conversion of about 88 cum of timber during the year is not indicated in the return. Does this indicate that no parata was obtained during 2002 as of the date of inspection by vigilance party? The sawmill register was totally rewritten by the Forest Range Oﬃcer, Utnoor and at no place the sawmill owner has attested the correction. 7. The Form-IIIA and IIIB were maintained upto 20.07.2002 only. The petitioner submitted explanation denying the allegations and also gave explanation with regard to other alleged irregularities. The second respondent after considering the material came to the conclusion that the petitioner used two vertical saws and one horizontal saw instead of one vertical saw and two horizontal saws, and therefore, violated the provisions of Andhra Pradesh Forest Act, 1967 (the Act, for brevity) and the Rules. It was also found that the petitioner committed oﬀence of illegal conversion of excess disposal of 11.264 Cmt sawn timber as found by FSDFO in the report, dated 08.02.2003. Accordingly, the second respondent ordered revocation of saw mill licence. The petitioner then preferred an appeal under Rule 11 of the Rules before the ﬁrst respondent. The ﬁrst respondent rejected the appeal, aggrieved by which, the present writ petition is ﬁled. It may also be mentioned that after the ﬁrst respondent’s order in petitioner’s appeal, ﬁfth respondent issued proceedings dated 28.04.2003 ordering conﬁscation of 41.466 Cmt (337 logs) of teak round timber and 7.859 Cmt (1038 sizes) of teak sawn sizes to the Government without issuing notice. This is also challenged in the writ petition. The petitioner contends that the second respondent revoked the licence without giving any reasons and that the order of the ﬁrst respondent suﬀers from non- application of mind. It is also contended that the order passed by respondent Nos.1 and 2 revoking the licence is improper and violative of principles of natural justice and that petitioner’s licence was cancelled for a reason, which was not mentioned in the show cause notice. Second respondent ﬁled counter aﬃdavit opposing the writ petition, inter alia, stating that the petitioner committed irregularities with regard to teak sawn sizes. It is also stated that renewal of licence in favour of the petitioner is contrary to Rule 3(2) of the Rules as it is within a distance of 1½ Km from the nearest reserve forest boundary. There is no dispute that the show cause notice was issued with reference to the report sent by Vigilance DFO and not FSDFO. Nonetheless, the second respondent recorded a ﬁnding that the petitioner violated provisions of the Act and the Rules, and such ﬁnding was also based on the report of the FSDFO. Secondly, as found by the ﬁrst respondent, there was no excess or deﬁcit quantity of round teak timber when Vigilance DFO inspected the saw mill. It was also found that there was excess of 17.609 Cmt of teak sawn sizes. When such is the case, curiously, the show cause notice was issued as if there is deﬁciency of 17.609 Cmt of teak sawn sizes. This would lead to an inference that the second respondent misdirected himself from the fact of the matter, presumably, for the reason that the inspection was made by Vigilance DFO on the instructions of PCCF. Thirdly, the appellate authority appears to have noticed these aspects and came to the conclusion that the matter has to be reconsidered afresh by the second respondent having regard to the fact that on the date of inspection by FSDFO on 08.02.2003 the petitioner’s saw mill had no valid licence. In spite of the same, curiously, ﬁrst respondent rejected the appeal, which is again an instance of misconception and misdirection in law. First respondent made the following observations. In view of the above the appeal preferred by the saw mill owner has been examined under the provisions of Rule-11 of A.P.Saw Mill (Regulation) Rules, 1969. The Divisional Forest Oﬃcer, Adilabad i.e., Licensing Authority has to dispose of the two cases i.e., A. case booked by Divisional Forest Oﬃcer Vig.I and case B. Booked by Divisional Forest Oﬃcer, Flying Squad, Mancherial and then come to proper conclusion. He should ﬁnalise the above two cases within 30 days. O R D E R:- The appeal preferred by Sri Shakkarikonda Dharmapuri Owner of Sri Venkateshwara Saw Mill and Timber Depot, Harkapur colony is hereby rejected due to failure to abide by the A.P.Saw Mill (Regulation) Rules, 1969 as well as A.P.Forest Act, 1967 and A.P.Forest Produce (Storage and Depot) Rules, 1989. Having regard to the conclusion that it is a matter to be reexamined by second respondent, ﬁrst respondent rejected the appeal, which is not correct. The appellate authority cannot remand/remit the case to original authority unless the order of the original authority is set aside, which only means that ﬁrst respondent ought to have allowed the appeal before remitting the matter to second respondent. Insofar as the order dated 28.04.2003 passed by ﬁfth respondent is concerned, the same is unsustainable, as order of conﬁscation under Section 44(2-A) of the Act cannot be passed unless a notice in writing informing the contravener of the grounds on which the property is proposed to be conﬁscated is issued (See Section 44(2-B) (a) of the Act). No such notice was issued, and therefore, the said order cannot be sustained. In the result, the writ petition is allowed and the following order is passed. The order dated 28.04.2003 bearing Rc.No.Saw Mills/03/Utr, passed by the ﬁfth respondent, namely, Sub Divisional Forest Oﬃcer, Utnoor, is set aside, and the matter is remitted to ﬁrst respondent to consider the validity or otherwise of the order dated 20.02.2003 passed by the second respondent revoking the saw mill licence of the petitioner with reference to the show cause notice dated 15.12.2002 issued to the petitioner, and without taking into consideration any other material about which the petitioner was not put on notice. This exercise shall be completed by the ﬁrst respondent within a period of four weeks from the date of receipt of a copy of this order. There shall be no order as to costs. ____________ (V.V.S.RAO, J) 04.11.2008 vs To 1 The Conservator of Forest Adilabad Circle, Adilabad. 2 The Divisional Forest Officer Adilabad, Adilabad District. 3 The Divisional Forest Officer vigilance-I, O/o. Principle Chief Conservator of Forest , Hyderabad. 4 Divisional Forest Officer Flying Squad, Mancherial Adilabad District. 5 The Sub Divisional Forest Officer Utnoor, Adilabad. 6 Forest Range Officer Utnoor, Adilabad. 7 2CCs to G.P for Forests, High Court of A.P., Hyderabad. 8 2CD copies. Form-NIC-OGS/WP{ }