IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9130 of 2004 SAKAL THAKUR Versus THE STATE OF BIHAR & ORS ----------- 5 30/3/2009 Heard counsel for the petitioner and counsel for the State. In this writ application prayer made by the petitioner as clearly set out in paragraph no.1 reads as follows:- “A. For issuance of writ/writs particularly in the name of writ of Certiorari for quashing of order dated 19.06.2004 passed by Session Judge in Miscellaneous Case No. 10 of 2004 (Annexure-1) whereby and whereunder appeal filed by the petitioner to include petitioner’s saw mill in the Final Seniority list of saw mills, has been dismissed on a hyper technical ground. B. For issuance of writ/writs particularly in the nature of writ of certiorari for quashing of notice contained in letter no. 1016 dated 06.05.2004 issued by the Divisional Forest Officer, Saran at Chapra whereby and whereunder petitioner has been directed to close down his saw mill within the period of two months. C. For issuance of order or orders, direction/ directions, writ/ writs particularly in the nature of writ of Mandamus or any other appropriate writ for the direction upon the respondents to include petitioner’s saw mill in the Final Seniority list. D. For issuance of order or orders, 2 direction/directions, writ/ writs particularly in the nature of writ of Mandamus for the direction upon the respondents not to disturb petitioner’s Saw Mill. E. For any other relief/ reliefs for which the petitioner is entitled for. Counsel for the petitioner with reference to the aforementioned relief would submit that on account of subsequent events this writ application now has become infructuous as the State Government has itself withdrawn the restriction of total number of Saw Mills in the State being 1450 including 44 in the district of Saran. He would therefore pray that this Court should pass an interim order for restoring the functioning of the Saw Mill of the petitioner. In the opinion of this Court such prayer of the petitioner must be rejected on the sole ground that an interim order can only be furtherance of the relief prayed for in the writ application. If there is nothing in the prayer of the writ application for allowing the petitioner to function, such prayer cannot be allowed unless Annexure-1, the order of the 3 Sessions Judge is set aside. This Court would therefore find it difficult to allow prayer of the petitioner. Coming to the prayer of the petitioner it would be found that Annexure-1 has been passed on mere technical ground that the appeal filed by the petitioner in terms of order of the Apex Court was barred by limitation of some twenty days. Counsel explains that as the order giving effect to number of mills fixed was communicated on 6.5.2004, the appeal filed by the petitioner on 12.4.2004 after acquiring knowledge of the list cannot be said to be barred by limitation. In the opinion of this Court when substantive right have been sought to be created under the orders of the Supreme Court and the right of livelihood of every owner of saw mills is going to be affected the appeal ought to have been disposed of on merits and not mere on technicality specially when the appeal cannot be held to be barred by limitation. That being so, this Court would set 4 aside the order as contained in Annexure-1 and remit the matter back to the District Judge, Vaishali to rehear the Misc. Appeal No. 10 of 2004. As the matter has remained pending before this Court for the last almost five years, this Court would expect that the appeal of the petitioner would be disposed of within a period of three months from the date of receipt/production of a copy of this order. It goes without saying that if the appeal of the petitioner is allowed he would definitely be entitled for the same treatment as is being given to other saw mill in the district of Vaishali. With the above observation and direction this application is disposed of. (Mihir Kumar Jha, J.) Abhay Kumar