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Abdul Sattar Khan Vs. Divisional Forest Officer, (Vikas) South Seoni Forest Division, Seoni and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 2530 of 1983
Judge
Reported inAIR1985MP235; 1985MPLJ438
ActsConstitution of India - Articles 14, 19(1) and 19(6); Madhya Pradesh Kastha Chiran (Viniyaman) Adhiniyam, 1984 - Sections 4, 6, and 11
AppellantAbdul Sattar Khan
RespondentDivisional Forest Officer, (Vikas) South Seoni Forest Division, Seoni and ors.
Appellant AdvocateR.K. Pandey, Adv.
Respondent AdvocateK.L. Kathal, Dy. Govt. Adv.
Excerpt:
- - according to him, the site was duly inspected and recommended for sanction but the petitioner was surprised by letter dated 12-12-1980 of the respondent no. wrongly recommended the case of thepetitioner as he was a new person recently posted there......the petitioner, there was restriction on installation of saw mills under rule 27 of m.p. transit (forest produce) rules, 1961, framed under indian forest act, 1927, but that restriction no longer remained after the enactment of this adhiniyam whereby state monopoly has been created in respect of trade of certain forest produce. under section 22 of the adhiniyam, nothing contained in the indianforest act or the rules shall apply to specified forest produce in respect of matters for which provisions are contained in the adhiniyam. however, under section 11 of the adhiniyam registration of manufacturers, traders and consumers of specified forest produce is necessary. under this adhiniyam, m.p. van upaj (vyapar viniyaman) kastha niyam, 1973, has been framed. rule 7 deals with registration.....
Judgment:

C.P. Sen, J.

1. This is a petition under Articles 226 and 227 of the Constitution against the rejection of the petitioner's application tor registration of his saw mill under M.P. Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969, (hereinafter referred to as the Adhiniyam).

2. The petitioner's case is that he owns aplot area 0.133 hectare in Sayeed Ward, Katangi Road, Seoni and on 24-7-1980 he filed an application before the respondent No. 1 for installation of a saw mill on that plot. According to him, the site was duly inspected and recommended for sanction but the petitioner was surprised by letter dated 12-12-1980 of the respondent No. 1 that his application has been rejected without disclosing any reason and without hearing him. The petitioner approached the respondent No. 1 and pointed out that the refusal was unjustified and then he was advised by the respondent No. 1 that he should get the said plot diverted and should obtain necessary sanction from the Municipal Committee and also from the Town and Country Planning Authority for that purpose. He was also advised to install necessary machinery and electrical appliances and he deposited Rs. 200/- as registration fee for the year 1981. The petitioner duly complied with the advice and he got the plot diverted and obtained sanction from the Town and Country Planning Authority and the Municipal Committee also issued a no objection certificate. He installed the machinery and electrical appliances and obtained electric connection from the M.P. Electricity Board, Still the respondent No. 1 did not issue the registration certificate. He made a complaint to the Collector that respondent No. 1 had made demands' from him which he could not comply. On 18-1-1982 the petitioner made further deposit of Rs. 200/-as registration fee for the year 1982. In the meanwhile, 'the appeal which the petitioner had preferred before Conservator of Forest was dismissed. The petitioner again approached the Conservator of Forest on 9-4-1982 for registration certificate for his saw mill. He was informed by the Conservator of Forest that the matter has been forwarded to the Chief Conservator of Forest for decision but on 7-10-1983 the petitioner was informed by the Conservator of Forest that his application has been rejected. According to the petitioner, there was restriction on installation of saw mills under Rule 27 of M.P. Transit (Forest Produce) Rules, 1961, framed under Indian Forest Act, 1927, but that restriction no longer remained after the enactment of this Adhiniyam whereby State monopoly has been created in respect of trade of certain forest produce. Under Section 22 of the Adhiniyam, nothing contained in the IndianForest Act or the Rules shall apply to specified forest produce in respect of matters for which provisions are contained in the Adhiniyam. However, under section 11 of the Adhiniyam registration of manufacturers, traders and consumers of specified forest produce is necessary. Under this Adhiniyam, M.P. Van Upaj (Vyapar Viniyaman) Kastha Niyam, 1973, has been framed. Rule 7 deals with registration of manufacturers, traders and consumers of specified timber. Against the rejection of an application for registration, appeal is provided to the Conservator of Forest. Rejection of the petitioner's application for registration of his saw mill is illegal and without jurisdiction because there is no need of prior sanction of the Forest Department for establishment of a saw mill and the M.P. Transit (Forest Produce) Rules have no application. Though registration certificate has been granted to other persons but the same has been refused to the petitioner on no justifiable ground and this violates Article 14 of the Constitution. Although the petitioner had obtained sanction of the Town and Country Planning Authority and also the Municipal Committee for establishment of the saw mill and on the assurance of the respondent No. 1 he had installed machineries and electrical appliances and taken electric connection, yet his application for registration has been refused for no valid reason. During pendency of this petition, M.P. Kashtha Chiran (Viniyaman) Adhiniyam, 1984, has been enacted and M.P. Kashtha Chiran (Viniyaman) Niyam, 1984, has been framed but this Adhiniyam and the Rules can have no application to the petitioner's application for registration of his saw mill as it was prior in point of time. Besides, restriction put under both the Adhiniyam and the Rules framed thereunder is unreasonable restriction to the fundamental right of the petitioner guaranteed under Article 19(1)(g) of the Constitution and they give arbitrary and unchannelised power to the authorities to reject an application for registration certificate.

3. The respondents in their return submitted that all the saw mills for which registration certficates have been granted are located in one particular locality where all the saw mills are located and the petitioner could not be granted certficate as it, was not possible to keep a check against illicit felling and wrongful use of specified forest produce on account of paucity of manpower. The S.D.O. wrongly recommended the case of thepetitioner as he was a new person recently posted there. The petitioner was informed the reason for rejecting his application for registration. Even if the petitioner desires to establish a saw mill in the area where the saw mills are located in Seoni, his application will be considered afresh. No advice or assurance was given to the petitioner to get his plot diverted or get necessary sanction from the Town and Country Planning Authority or for purchase of machinery, electrical appliances or for obtaining electric connection. The petitioner did deposit Rs. 200/- as registration fee for the year 1980-81 but the amount was returned as it was accepted by mistake. The petitioner may have installed the machinery and electrical appliances and completed his work at his own risk. His allegation about any illegal demands by the respondent No. 1 is false. The petitioner had filed Civil Suit No. 5 B of 1978 in the Court of Civil Judge, Class-I Seoni, against the S.D.O. but the same was dismissed. Fresh deposit of Rs. 200/- as registration fee for the year 1981-82 has also been returned. It is denied that M.P. Transit (Forest Produce Rules, 1961) are not operative because of the enactment of the Adhiniyam. Since there is no provision in the Adhiniyam for establishment of a saw mill, the Transit Rules are still applicable. The Adhiniyam does not permit establishment of unlimited number of saw mills. It is further submitted that after the enactment of the Adhiniyam of 1984, the petition has become untenable inasmuch as the petitioner has now to apply afresh under this Adhiniyam for establishment of his saw mill which will be duly considered on its merit. There is no arbitrary or unchannelised power given to the authorities to reject an application for registration under either of the enactments, or the rules framed thereunder. Therefore, the petition is liable to be dismissed on this short ground alone.

4. After hearing the parties, we are of the opinion that no relief can be granted in view of the enactment of the Kashtha Chiran Adhiniyam. Though the petitioner's application was prior in point of time before coming into force of this Adhiniyam on 15-12-1983 but in view of Section 23 of this Adhiniyam, nothing contained in any other Act, or law, rule, order or any other thing having a force of law in any areas of the State, shall apply to the saw mill and saw pit, and sawing in respect of matters for whichprovisions are contained in this Act. An application for a licence for establishment of a saw mill has to be made under Section 4. Licence can be granted or refused under Section 6. Before refusing a licence, the licensee has to be heard and reasons have to be disclosed in the order rejecting the application. An appeal lies against the refusal under Section 11 and the appeal shall be disposed of after hearing the parties. An application for a licence has to be made under Rule 3 and under Sub-rule (6) while refusing to grant licence the licensing officer shall apart from any other consideration which in his opinion justifies his action of refusing to grant the licence, consider the matters enumerated therein. Therefore, in view of these provisions, it cannot be said that arbitrary and unchannelised powers have been given to the licensing authority to reject an application for licence. The licensing authority has to hear the applicant before rejecting his application and has to disclose reasons for rejecting the application. This is subject to an appeal and the appellate authority is required to hear the parties before passing the order. License can be rejected on any of the grounds enumerated in Rule 3(6) or on any valid ground which is subject to scrutiny by the appellate authority. This Act was enacted to make provisions for regulating in the public interest, the establishment and operation of saw mills and saw pits and trade of sawing for the protection and conservation of forests and the environment. As there is already State monopoly in trading in specified forest produce, it is necessary to regulate the establishment and working of the saw mills and the petitioner has no unrestricted right for trading or manufacturing any specified forest produce. Under Article 19(6)(ii) nothing contained in Sub-clause (g) of Clause (1) shall affect carrying on by the State any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise if it is in the interest of general public. So there is no question of any contravention of Article 19(1)(g) of the Constitution. It is true that the petitioner's application for registration under the Adhiniyam of 1969 was rejected by a non-speaking order but it is no longer necessary to go into the validity of that order because it is of mere academic interest. Even if that application is allowed, still the petitioner will be required to apply for a licence underKashtha Chiran Adhiniyam of 1984, for establishment of a saw mill. Till the licence is granted for establishment of a saw mill, there is no question of registration of saw mill. Under Rule 7(2) of 1973 Rules, the Divisional Forest Officer is required to make such enquiry as he deems necessary before granting or refusing a registration certificate and the person aggrieved by such an order can prefer an appeal to the officer next higher in rank. So there is no arbitrary or unchannelised power to reject an application for registration. Rejection has to be on valid grounds. As there was no provision regarding establishment of the saw mill under the Adhiniyam of 1969 and the rules framed thereunder, M.P. Transit (Forest Produce) Rules did not become redundant in view of Section 22 of the Adhiniyam. Under the circumstances, the petitioner has to make a fresh application under the Kashtha Chiran Adhiniyam, 1984 which will be considered by the respondents under the provisions of that Act and the rules framed there without adverting to the earlier order rejecting the petitioner's application for registration of a saw mill.

5. Accordingly, the petition is disposed of. There shall be no order as to costs. The outstanding security amount be refunded to the petitioner.


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