Dayashankar Soni, v. The Union Of India,
Page No.1 HIGH COURT OF CHHATTISGARH, BILASPUR W.P.(C) No. 4950 of 2021 Bhog Singh Sahu S/o Shri Nirbhay Ram Sahu Aged About 61 Years R/o Post Tundri, Tehsil Dabhara, District Janjgir Champa, Chhattisgarh. State Level Committee Chhattisgarh under Wood Based Industries Divisional Forest Officer-cum-Licensing Authority Janjgir-Champa, District Janjgir-Champa, Chhattisgarh.
W.P.(C) No. 4951 of 2021 Shriram Sahu Shri Jodhram Sahu Aged About 64 Years R/o Post Tundri, Tehsil Dabhara, District Janjgir Champa Chhattisgarh..
Page No.2 Divisional Forest Officer-cum-Licensing Authority Janjgir Champa, District Janjgir Champa Chhattisgarh.
W.P.(C) No. 4957 of 2021 Rameshwar Prasad Patel S/o Shri Baratram Patel Aged About 72 Years R/o Village Kotmi, Tehsil- Dabhra, District- Janjgir- Champa Divisional Forest Officer-cum-Licensing Authority Janjgir Champa, District Janjgir Champa Chhattisgarh.
W.P.(C) No. 4960 of 2021 Rekha Sahu D/o Shri Ramsharan Sahu Aged About 46 Years R/o Village Tushar, Tehsil Jejepur, District Janjgir Champa Chhattisgarh.
Page No.3 Divisional Forest Officer-cum-Licensing Authority Janjgir Champa, District Janjgir Champa Chhattisgarh.
W.P.(C) No. 4969 of 2021 Narendra Kumar Rathore S/o Shri Bhagwat Prasad Rathore Aged About 52 Years R/o Village Kachanda, Post Jharna, Tehsil Jejepur, District Janjgir Champa Chhattisgarh.
Divisional Forest Officer-cum-Licensing Authority Janjgir Champa, District Janjgir Champa Chhattisgarh.
W.P.(C) No. 4975 of 2021 Saheb Lal Sahu S/o Shri Mohar Sai Sahu Aged About 50 Years R/o Village Sasha, Tehsil Pamgarh, District Janjgir Chmapa, Chhattisgarh.
Page No.4 Divisional Forest Officer-cum-Licensing Authority Janjgir Champa, District Janjgir Champa Chhattisgarh.
W.P.(C) No. 4976 of 2021 Balaji Singh S/o Shri Chhatradhari Singh Aged About 72 Years R/o Village Mulmula, Tehsil Pamgarh, District Janjgir- Champa, Divisional Forest Officer-cum-Licensing Authority Janjgir Champa, District Janjgir Champa Chhattisgarh.
Page No.5 W.P.(C) No. 4977 of 2021 Purandar Kashyap S/o Ramsharan Kashyap Aged About 53 Years R/o Village Loharsi, Kharod, Tehsil Pamgarh, District Janjgir-Champa, Divisional Forest Officer-cum-Licensing Authority Janjgir Champa, District Janjgir Champa Chhattisgarh.
W.P.(C) No. 4979 of 2021 Dukhuram Patel S/o Mukund Ram Patel Aged About 76 Years R/o Village Kamrid, Post Tannod, Tehsil Pamgarh, District Janjgir-Champa (Chhattisgarh).
Page No.6 Divisional Forest Officer-cum-Licensing Authority Janjgir Champa, District Janjgir Champa Chhattisgarh.
W.P.(C) No. 4985 of 2021 Durga Prasad Pandey S/o Shri Chandrika Prasad Pandey Aged About 60 Years R/o Village Sukli, Tehsil Janjgir, District- Janjgir- Champa, Divisional Forest Officer-cum-Licensing Authority Janjgir Champa, District Janjgir Champa Chhattisgarh.
W.P.(C) No. 4987 of 2021 Laxmikant Kaushik S/o Late Shri Ramchandra Kaushik Aged About 43 Years R/o Village Dongakohrod, Tehsil Pamgarh, District- JanjgirChampa, Chhattisgarh.
Page No.7 Divisional Forest Officer-cum-Licensing Authority Janjgir Champa, District Janjgir Champa Chhattisgarh.
W.P.(C) No. 4990 of 2021 Bedram Dewangan S/o Samaru Ram Dewangan Aged About 74 Years R/o Village Kera, Tehsil Nawagarh, District Janjgir Champa Divisional Forest Officer-cum-Licensing Authority Janjgir Champa, District Janjgir Champa Chhattisgarh.
W.P.(C) No. 4991 of 2021 Bhagwat Sahu S/o. Suraj Prasad Sahu, aged About 65 Years R/o Village Sivni, Tehsil Champa, District- Janjgir-Champa (C.G.)
Page No.8 Divisional Forest Officer-cum-Licensing Authority Janjgir Champa, District Janjgir Champa Chhattisgarh.
AND W.P.(C) No. 3983 of 2021 Dayashankar Soni, S/o Banshi Lal Soni Tel, Aged About 52 Years Proprietor Shankar Saw Mill, Village Arjuni, Tehsil - Baloda Bazaar, District Baloda Bazar Bhatapara Chhattisgarh. Divisional Forest Officer-cum-Licensing Authority, Baloda Bazar, District Baloda Bazar, Chhattisgarh.
Page No.9 ________________________________________________________ Mr. Manoj Paranjpe, Advocate for petitioners in W.P.(C) No.4950, 4951, 4957, 4960, 4969, 4975, 4976, 4977, 4979, 4985, 4987, 4990 and 4991 of 2021.
Mr. Vaibhav Shukla, Advocate for petitioner in W.P.(C) No.3983 of 2021. Mr. Tushar Dhar Diwan on behalf of Mr. Ramakant Mishra, Asstt. S.G. for Union of India/Respondent No.1.
Mr. Chandresh Shrivastava, Dy. A.G., Mr. Rahul Jha, G.A., Mr. Ravi Bhagat, G.A., Mr. Ashish Tiwari, G.A., Ms. Akanksha Jain, P.L., Mr. Aman Kesharwani, P.L., Ms. Sameeksha Gupta, P.L. and Ms. Shriya Mishra, P.L. for respondents No.2 to 5. ----------------------------------------------------------------------------------------------- Hon'ble Shri Justice Rajendra Chandra Singh Samant Order On Board 03/12/2021 These writ petitions have been filed by the petitioners seeking following reliefs :- "(i) That, the Hon'ble Court may issue appropriate writ quashing clause 7 (ii) of the impugned 2016 Guidelines dated 11.11.2016 issued by Respondent No. 1 (Annexure P/1) and consequential notification bearing no. F 1951/Va/ 10-2/2005 (Part) dated 13.08.2021 (Annexure P/2) issued by respondent No. 2 and show cause notice dated 18.10.2021 and 05.08.2021 (Annexure P/3) respectively.
(ii) That, the Hon'ble Court may issue appropriate writ directing the SLC/expert committee (Respondent No. 4) to decide the optimum distance for establishment of saw mills from protected and notified area for the State of Chhattisgarh as directed by the Hon'ble Supreme Court in the matter of WPC No.202/98
Page No.10 T.N. Godavarman Thirumulpad vs. Union of India.
(iii) Pass any order(s) as this Hon'ble Court may deem fit and proper in the interest of justice." Learned counsels for the petitioners submit that pursuant to the guideline issued in the case of T.N. Godavarman Thirumulpad vs. Union of India & Ors.
in WPC No. 202/98, initially a notification was made by the Expert Committee and thereafter by the State Government which had fixed the aerial distance of 10 kms and within the periphery of forest, the operation of the Wood Based Industries have been prohibited. It is contended that pursuant thereto the show cause notices were issued by the State on 18.10.2021 and 05.08.2021 respectively to the petitioners. It is further contended that as per the guideline issued by the Ministry of Environment and Forest and Climate Change (hereinafter referred to as 'MoEFCC'), the restriction on location of wood based industries as per clause-7(ii), the 10 kms of aerial distance from the boundary of nearest notified forests and protected areas was notified.
It is stated that as per the Hon'ble Supreme Court's guideline, it was for the SLC who should have decided the optimum distance on which such restriction can be placed. Since the notice is served with decision already arrived at hearing would be a mere formality. As such, the notification of the Union of India dated 11.11.2016 (Annexure P/1) and the consequential notification dated 13.08.2021 (Annexure P/2) and the show cause notices dated 18.10.2021 and 05.08.
Page No.11 respectively be quashed as it is against the Hon'ble Supreme Court guideline and is issued arbitrarily.
Per contra, learned State counsel oppose the argument and would submit that the directions have been issued pursuant to the order passed by the Hon'ble Supreme Court on 05.10.2015 and as per the guideline, the MoEF is authorised to issue the appropriate guideline to decide the distance for establishing a Wood Based Industry near a forest. It is submitted that further the order purport that the person aggrieved by the decision taken by the SLC may filed an appeal before the MoEFCC seeking appropriate relief and thereafter may approach the concerned Court, therefore these petitions against show cause notices would not be maintainable.
Having heard the learned counsel for the parties on admission. The order of the Hon'ble Supreme Court dated 05.10.2015 in the matter of T.N. Godavarman Thirumulpad (supra) is perused. The relevant consideration with the guideline which was issued by the Hon'ble Supreme Court is reproduced hereinbelow :- "(iii) The MoEF is authorized to issue appropriate guidelines in conformation with the orders and directions issued by this Court and also the existing guidelines to the SLCs relating to assessment of timber availability for wood-based industries and grant of license/permission to the woodbased industries including addition of new machineries and also utilization of amounts recovered from the wood-based industries and connected matters;
Page No.12 (iv) Any person aggrieved by the decision taken by the SLC may file an appeal before the MoEFCC seeking appropriate relief within 60 days' time. If, for any reason, any person is aggrieved by the orders so passed in the appeal, he may prefer an appropriate petition/application/appeal before the appropriate forum/Court for grant of appropriate relief(s)."
6.
Pursuant thereto, the MoEFCC issued a notification on 11.11.2016 (Annexure P/1), the relevant part of restriction on the location of Wood Based Industries was resolved as under :- "7. Restriction on location of wood based industries. (i) In the North Eastern States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura and Sikkim the wood based Industries shall be permitted to be established within the Industrial estates.
(ii) In the State other than the aforementioned North Eastern States, wood based industries shall ordinarily be not allowed to be established within ten kilometers aerial distance from the boundary of nearest notified forests and protected areas. The State Level Committee for the reasons to be recorded in writing and after obtaining prior approval of the Central Government in the Ministry of Environment, Forest and Climate Change may permit to establish/operate a wood based industry at an aerial distance less than 10 kilometers from the boundary of a notified forest or a protected area."
7.
Subsequently, this notification was further amended on 11.09.2017 which reads as under:- "5. The entries under Para-7 (ii) of these Guidelines are substituted with the following:-
Page No.13 (a) In the States/UTs (other than North Eastern States), in respect of distance from the boundary of nearest notified forests or protected areas, wood based industries shall be allowed to operate as per statespecific order/approval of the Hon'ble Supreme Court/ Hon'ble High Court of the concerned state/Central Empowered Committee;
Or, beyond ten kilometers of aerial distance from the boundary of nearest notified forests or protected areas, excluding roadside/railway side/canal side plantations, whichever is less.
(b) A Wood Based industry can be established in an industrial Estate or a Municipal area, irrespective of the aerial distance from the boundary of nearest notified forest or protected area."
8.
The reading of the aforesaid direction of the Hon'ble Supreme Court and the notification show that the prima facie the MoEF was authorised by the direction of the Hon'ble Supreme Court to issue the guideline. The State Government thereafter has issued the notification on 13.08.2021 (Annexure P/2) wherein aerial distance of 10 kms from the forest has been fixed to put up the Wood Based Industry. In the instant case, the show cause notice has been issued subsequent to the notification by the State on 13.08.2021, therefore, on this premises alone, the prejudice cannot be inferred, otherwise also, it is for the State to ensure the protection of the forest and to establish Wood Based Industry at a particular distance from the forest.
9.
Since at present, the reply has not been filed by all the petitioners to the show cause notices. It is for the respondent authority to take a final decision on this issue. The petitioners, who have not filed reply are also at liberty to raise the grounds,
Page No.14 which has been raised before this Court, before the respondent authority by filing reply. From the respondents authorities, it is expected that, they would hear the case of the petitioners and thereafter decide it in accordance with law and the guideline which is issued by Hon'ble Supreme Court and the respondents authorities shall also consider the 16th minutes of the meeting of SLC dated 22.04.2019.
10.
In the meanwhile, it is directed that no coercive action shall be taken against the petitioners till final orders on show cause notices are passed. The case of the petitioners should be decided expeditiously.
11.
With the aforesaid observations/directions, all the writ petitions stand disposed off.
Sd/- (Rajendra Chandra Singh Samant) Judge Nimmi