THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WP No. 15384 of 1996 ORDER: This writ petition has been instituted by a Ward Member of the 4th respondent – Gram Panchayat seeking a writ of prohibition for restraining the respondents 1 to 4 from granting licence to the 5th respondent for starting a saw mill contrary to sub-rule (2) of Rule 3 of the Andhra Pradesh Saw Mill (Regulations) Rules, 1969, hereinafter referred to as `Rules’. The writ petitioner submits that he is a member of the ward of the 4th respondent – gram panchayat, where the 5th respondent sought to establish a saw mill. Apart from elaborating in great detail, the ill effects of rapid deforestation, the writ petitioner has specifically asserted that the saw mill sought to be established by the 5th respondent is within 5 kms distance from the boundary of Jeerapadu Forest which is a reserved forest and hence establishment of such a saw mill being contrary to the Rules, the respondents 1 to 4 should be prohibited from granting licence for such a saw mill. It was further asserted that the 5th respondent owns a small extent of land of dimensions of 40’ x 60’ bearing Door No. 7-114, Devarapally village and that in the said premises there is already a rice mill, a flour mill and a grinding mill for grinding chillies, established. It is further stated that there is a Harijan colony very proximately close to the premises of the 5th respondent. Hence, it is asserted that establishing a saw mill in such a locality by the 5th respondent could be exceedingly contrary to the public interest also. The 5th respondent in his counter affidavit has asserted that the 4th respondent – Gram panchayat, after inspecting the site and also the existing buildings, has passed a resolution on 17.6.1996 granting permission to start the saw mill using 20 HP electrical motor. It is further stated that applications have been submitted to the District Medicial and Health Officer, Inspector of Factories and the Town Planning Officer for according the necessary permissions. It was further asserted that he has also obtained the signatures from the residents of the locality expressing their no objection for grant of licence for establishing a saw mill in his premises. Importantly, it is stated therein as under: “…. The petitioner herein is one of the signatories figured at Sl. No. 96…” It was further stated that the Inspector of Factories, Visakhapatnam, by his proceedings dated 12.6.1996 has approved the plans submitted by the 5th respondent for establishing a saw mill. The Town Planning Department also sanctioned the plans for constructing the saw mill on 13.8.1996 and that the Medical and Health Department after a due inspection of the site and locality found that the site in question is suitable from the public health point of view for establishing a saw mill and accordingly sanctioned him the necessary permission subject to usual conditions, which have been complied with by him. It was also asserted by the 5th respondent that the Divisional Forest Officer, S.C. Division, Visakhapatnam by his proceedings RC No. 3850/96-L, dated 17.4.1997 has granted licence for instalation and running of the saw mill in Sy.No. 271 of Devarapalli village in the name and style of “Satyanarayana Saw Mill.” It was also asserted that his brother by name Sri V.Satyanarayana Murthy is also owning a saw mill adjacent to his premises and as the proposed establishment of a saw mill by the 5th respondent will cause loss of business to him, and his brother has instigated the petitioner herein to file this writ petition and hence there are no bonafides behind this writ petition. A counter affidavit has been filed on behalf of the 1st respondent asserting that that the distance between the proposed saw mill by the 5th respondent from the nearest reserve forest at Peddakota was found to be 5.1 kms and hence the Divisional Forest Officer has granted the necessary permission for establishing a saw mill by the 5th respondent since all other departments have not raised any objection in that regard. Since this counter affidavit did not advert to the specific fact asserted by the writ petitioner that the distance between “Jeerapadu Reserve forest” under Visakhapatnam division and the proposed saw mill is less than 5 kms, I called for a detailed examination and a report in the matter by the Divisional Forest Officer. The Divisional Forest Officer has stated that the nearest reserve forest to Devarapally village is the Peddakota reserve forest and there is no reserve forest by name Jeerapadu reserve forest in Visakhapatnam division. In this factual backdrop, the question that is needed to be answered is whether the 5th respondent is entitled to be permitted to establish a saw mill at Devarapally village or not? Exercising power available under Section 29 read with Section 68 of the Andhra Pradesh Forest Act, the Governor of Andhra Pradesh made Andhra Pradesh Saw Mill (Regulation) Rules, 1969, with a view to regulate the establishment of saw mills. These rules have been amended through a notification dated 6.6.1985 and one of the important sub-rules introduced in the existing Rule (3) is sub-rule (2). It reads as under: “(2) No 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”. Therefore, pursuant to the amendment notified to the Rules on 6.6.1985, it became imperative for the licensing authorities not to grant any permission 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. Since the 5th respondent has proposed to establish a saw mill only after sub-rule (2) has been inserted in Rule 3, this condition relating to distance is squarely attracted in his case. Apart from the assertion of the 5th respondent that the distance between the site at which the saw mill is sought to be established and the nearest reserve forest is beyond 5 kms, the statement of the respondents in the counter is clear, in that, the Forest Range Officer, Chodavaram, through his report dated 26.10.1996 had submitted that the distance between the proposed saw mill and the Peddakota reserve forest was 5.1 kms. It is now brought out that this distance was calculated based upon estimate of the distance on the map scale available from the topo sheets. The Survey of India Topo sheet where 1:50000 scale was used for computing the distance, has formed the basis for calculation of the distance in the report submitted by the Forest Range Officer. It is brought out that when measured in the aforementioned scale 1 mm on the map represents 50 Mts on the ground and 1 Cm will represent 500 Mt distance. In the absence of other specified method for computing the distance, in the Rules, the method adopted by the Forest Range Officer cannot be faulted. It is therefore obvious that the Forest Range Officer, Chodavaram in his report dated 26.10.1996 has calculated the distance based upon the Survey of India Topo sheets and gave his report. Therefore, in my opinion, no fault in that respect can be attributed, though lot of care ought to have gone into such an exercise, inasmuch as a single centimeter distance on the map would have made a difference in a distance of 500 mts on ground. Importantly, the pleadings set up by the writ petitioner that for improper considerations, the 4th respondent – Gram panchayat has passed the resolution approving the proposed establishment of saw mill by the 5th respondent cannot be countenanced. He is a member of the Gram panchayat. He has not come out cleanly by stating as to whether he was a party to the said resolution or not? If, he participated at the meeting of the Gram Panchayat and voted for approving the proposal of the 5th respondent, he cannot turn round later on and question the propriety of the decision. No party can blow hot and cold simultaneously. In a democratic set up, even if one of the ward members of the gram panchayat has opposed a particular proposal and majority of the members have preferred to approve any such proposal, it is the majority view that should prevail. Aggrieved parties, including such members who have opposed any such proposal are entitled to canvass the propriety of such resolutions in accordance with the provisions contained in the Gram Panchayat Act. The writ petitioner has not adverted to any such attempt made by him. This apart the 5th respondent in so many words has asserted that that he has obtained the consent and opinion of several residents of his locality and the same was made available to the licensing authority. The writ petitioner has signed the same at Sl. No.96. This assertion of the 5th respondent has gone uncontroverted. Further, the 5th respondent has also nailed the writ petitioner by pointing out that the writ petitioner, in reality is espousing the cause of a rival businessman, none other than his own brother and that said brother was in fact running a saw mill next door. Therefore, clearly the writ petitioner lacked bonafides. Since the brother of the writ petitioner could not have opposed grant of licence to any other rival businessman including his own brother, he has obviously set up the writ petitioner. Clearly, the writ petition is lacking bonafides, inasmuch as no objection was raised therein with regard to the Saw MiIll run by the brother of the writ petitioners. However, Sri A.K.A.Venkataramana, learned counsel for the writ petitioner had tried to draw inspiration from the report filed by the Divisional Forest Officer, Visakhapatnam stating that the distance between the saw mill in question and the boundary of the nearest reserve forest was measured using GPS (Geo-positioning system) and GIS (Geo Information System technology) which is the latest technology available for securing reasonably accurate results. When this distance is so measured it came to light the actual distance was only 4624 Mts from Peddakota reserve forest boundary and contended that, now that the accurate measurements relating to the distance having become available, the 5th respondent should be restrained from operating the saw mill. At this juncture, it will be appropriate to notice that the State has carried out further amendments to the rules and notified the same through their G.O.Ms. No.99, dated 17.7.1998, introducing sub-rule (3) to Rule (3). The newly introduced sub-rule (3) reads as under: “the distance of 5 kms shall be computed from topo sheets as ariel distance as crow flies.” Therefore, the rule making authority has introduced a new mechanism for measuring the distance by inserting sub-rule (3) to Rule 3 with effect from 17.7.1998, which is after the licence has been granted in favour of the 5th respondent. As was already noticed supra, when the distance is sought to be measured using the Survey of India topo sheets, the possibility of the error margin of 1 cm could not have been ruled out. Only when the distance is measured using the GPS and GIS technology, the distance is now shown as 4624 mts. Therefore, whether the 5th respondent could still be permitted to operate the saw mill or not would be a decision that is required to be taken by the department afresh. By the time sub-rule (3) to Rule 3 came to be introduced on 17.7.1998, if the 5th respondent has already obtained a licence, he becomes an existing licensee and he would not be treated as a fresh licensee. In fact, a Division Bench of this court in Divisional Forest Officer, Kaghaznagar v. Sree Venkateswara Saw Mills,Kaghaznagar[1] as held as under: “4. The contention of the learned Government Pleader for Forests is not acceptable to us. Sub-rule (2) of Rule 3 of the Rules read as follows: (2) No 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.” Sub-rule (4) of Rule 5 of the Rules reads as follows: (4) In case the saw mill presmises 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. 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 the 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 in 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….” Therefore, different parameters would have come to be applied by the department pursuant to the introduction of sub-rule (3) of Rule 3 through G.O. Ms. No.99, dated 17.7.1998. That would be an entirely a different matter and it is for the 5th respondent to sort it out that the 1st respondent. The writ petitioner cannot be permitted to take advantage of the subsequently introduced sub-rule (3) of Rule 3 and also the measurement of distance using GPS and GIS technologies, which are distinct methods of measuring the distance from the method of computing the same based upon topo sheets, which is the prescribed method in Sub-Rule (3) of Rule 3 of the Rules. Since I found that the writ petition lacks bonafides, it deserves to be dismissed with costs quantified at Rs.1,000/- (Rupees one thousand only) payable to the 5th respondent. -------------------------------- N.RAMAMOHANA RAO,J 17.12.2009 knk [1] 2002(5) ALT 286 (DB)