- (1.) CYRIAC Joseph, C. J. The petitioner is holder of a licence issued under the U. P. Establish ment and Regulation of Saw Mills Rules, 1978. The licence was originally issued in the name of Sri Abdul Rashid S/o Sri Abdul Hakim, R/o Bhawaniganj, Ram Nagar, District Nainital. As per Annexure 5 order dated 22-02-2000 of the Principal Chief Conservator of Forest, Uttar Pradesh, permission was granted to transfer the licence in the name of the petitioner and to relocate the saw mill at Lakri Mandi, Amritpur, District Udham Singh Nagar. On the basis of the said permission, the petitioner has been operating the saw mill at Lakri Mandi, Amritpur in Udham Singh Nagar. Suddenly, the petitioner re ceived Annexure 1 letter dated 16-09-2005 from the Principal Chief Conser vator of Forest, Uttaranchal stating that the petitioner's saw mill is located within 10 Kms. at an approximate aerial distance of 4 Kms. from the boundary of the forest and that such lo cation of the saw mill is against the order dated 05-05-1998 passed by the Hon'ble Supreme Court in Interim Ap plication No. 385/1997 in Writ Petition No. 202/95 and also against the terms and conditions regarding relocation of saw mill in the order dated 22-02-2000 of the Principal Chief Conservator of Forest. The petitioner was also directed to relocate his saw mill beyond an aerial distance of 10 Kms. from the boundary of the forest within 10 days failing which the permission granted in the order dated 22-02-2000 would be cancelled. The petitioner did not com ply with the above direction to relocate the saw mill beyond an aerial distance of 10 Kms. from the boundary of the forest. Therefore, by Annexure 10 or der dated 29-09-2005, the Principal Chief Conservator of Forest cancelled the permission granted to the petitioner as per his earlier order dated 22-02-2000. Challenging the said Annexure 10 order dated 29-09-2005, the peti tioner has filed this writ petition.
(2.) THE first contention raised by the learned counsel for the petitioner is that the competent authority to issue or cancel the licence under the Uttaranchal Establishment and Regula tion of Saw Mills Rules, 2004 is the Divisional Forest Officer and a person aggrieved by the order or decision of the Divisional Forest Officer has a right of appeal to the Conservator of Forest. As a result of Annexure 10 order passed by the Principal Chief Conservator of Forest, the petitioner has been denied the right of appeal to the appellate au thority. It is pointed out that the Prin cipal Chief Conservator of Forest is an authority superior to the Conservator of Forest. We do not find any merit in this contention. THE petitioner has not pro duced any licence issued to him by the Divisional Forest Officer or any order canceling the licence by the Divisional Forest Officer. He has also not chal lenged any order passed by the Divi sional Forest Officer canceling the li cence issued to him. What is challenged in the writ petition is Annexure 10 or der passed by the Principal Chief Con servator of Forest. As per Annexure 10 order, the Principal Chief Conservator of Forest only cancelled his own order passed on 22-02-2000 (Annexure 5 ). It cannot be disputed that an authority which issued the order is competent to cancel the said order for valid and suf ficient reasons and in accordance with the principles of natural justice. THE impugned order (Annexure 10) was passed by the Principal Chief Conservator of Forest after issuing Annexure 1 notice dated 16-09-2005 by which the petitioner was given 10 days for re locating the saw mill beyond an aerial distance of 10 Kms. from the boundary of the Forest. THE reasons for such a directory were stated in the notice dated 16-09- 2005. If the petitioner had any valid objection to the said direction, he had the opportunity to raise it before the Principal Chief Conservator of For est and if such an objection was raised, he would have considered such objec tion before passing the final order (Annexure 10 ). THEre is nothing to in dicate that the petitioner had filed any objection to Annexure 1 notice before the Principal Chief Conservator of For est. In such circumstances, it cannot be held that Annexure 10 order was issued by the Principal Chief Conservator of Forest without competence or in viola tion of the principles of natural justice. It cannot also be said that by canceling his own order, the Principal Chief Con servator of Forest deprived the petitioner of the right of filing appeal against any cancellation of the licence. The second contention raised by the learned counsel for the petitioner is that the Principal Chief Conservator of Forest has erred in taking the view that, as per the order dated 05-05-1998 of the Hon'ble Supreme Court in Writ Pe tition No. 202/95, the distance of 10 Kms. from the boundary of the forest should be aerial distance. According to the learned counsel, what the Hon'ble Supreme Court intended is 'road dis tance' and not 'aerial distance'. In Writ Petition No. 202/95, the Hon'ble Su preme Court had passed the following order on 08-05-1997 [vide (1997) 7 SCC 440] : "4. After hearing the learned amicus curiae, the learned Attorney General and the other learned counsel, we direct as under : A. In the State of Uttar Pradesh the following is permitted : 1. Principal Chief Conservator of Forest (PCCF) may, on a case-to-case basis, consider grant of permission to an existing li censed saw mill to relocate itself, provided that the relocated site is not within 10 Kms. of any ex isting forest. 2. To alleviate the unintended hardship which may be caused to the ordinary populace in the hill areas who need forest pro duce for their survival, it is clari fied as under : (a) Nothing contained in the orders passed by this Court would pre vent the U. P. Forest Corporation from directly undertaking the ex ercise of collecting forest pro duce including fallen wood (but not any felling or cutting of trees or timber) to the extent strictly necessary, and distributing the same ex-depot to the people liv ing in the hill areas. (b) The Forest Corporation may, with the prior permission of the PCCF, remove dead or dry trees for sup ply in the same manner ex-depot to people residing in those areas. The Forest Corporation shall (i) undertake such activity itself with out engaging any outside agen cies, and (ii) keep an account of the dead and dry trees felled and removed by them, and shall by way of an affidavit file the same in this Court. " The State of U. Pfiled Interim Ap plication No. 385 of 1997 before the Hon'ble Supreme Court seeking certain directions and modifications of the above-mentioned order dated 08-05-1997. Disposing of the said application, the Hon'ble Supreme Court passed the following order on 05-05-1998 [vide (1998) 6 SCC 192] : "10. On 08-05-1997, this Court per mitted the Principal Chief Conserva tor of Forest of the State of U. R, on case-to-case basis, to consider grant of permission to an existing licensee of a sawmill to relocate itself, pro vided that the relocated site is not within 10 Km. of any existing forest. Mr. Goel, learned counsel for the State of U. R, submits that a clarifi cation is necessary to be made that the area of 10 Km. would not in clude trees standing on either or both sides of the road and the rail ways. We. clarify that the direction dated 8-5-1997 not to relocate the sawmill within 10 Km. of any exist ing forest, would mean and imply 10 Km. of any existing forest, ex cluding the trees on either side of the roads and the- railways outside the existing forests and the 10 Km. ban be considered in that light. 11. Mr. Goel further submits that the State Government has examined the Rules on the subject and is of the opinion that the Rules require to be amended and a Cabinet decision has been taken to amend the Rules but before notifying the same to bring it to the notice of this Court, and seek permission. 12. We allow the State Government to amend the relevant rules in ac cordance with the law keeping in view various orders and directions issued by this Court from time to time on the subject. It is, however, made clear that the permission, hereby granted is not in dilution of any order passed by this Court on this subject. We also clarify that by the grant of this permission, we should not be taken to have pronounced as the validity or otherwise of the Rules nor expressed any opin ion on the correctness or otherwise of the proposed amendments. 13. In case any other clarification or modification is required of the ear lier orders of this Court, the State of U. P. shall be at liberty to file an ap propriate application in that behalf. 14. Application (IA No. 385) is dis posed of. " The State of U. P. was bifurcated and the State of Uttaranchal was cre ated w. e. f. 9-11-2000. The Govern ment of Uttaranchal framed the Uttaranchal Establishment and Regula tion of Saw Mills Rules, 2004. In the U. P. Establishment and Regulation of Saw Mills Rules, 1978, Rule 3 had pro vided that within the limits of any re served or protected forest and within a radius of 80 Kms. of such limits, no person shall establish, erect or operate any existing saw mill or machinery for converting or cutting timber or wood without obtaining the licence from the Divisional Forest Officer concerned. A corresponding provision is not seen in corporated in the Uttaranchal Establish ment and Regulation of Saw Mills Rules, 2004. However, from the Sec ond Proviso to Rule 5 of the Uttaranchal Rules, it is clear that a saw mil! cannot be located within 10-Kms. from an existing forest. It is also clear from the conditions of licence con tained in the form of application. In ad dition to the above provisions in the Rules, there is a specific direction is sued by the Hon'ble Supreme Court on 08-05-1997 that permission cannot be granted to relocate an existing licensed saw mill within 10 Kms. of any exist ing forest. It is in clear violation of the said direction of the Supreme Court that the Principal Chief Conservator of Forest granted permission to relocate the petitioner's saw mill as per his or der dated 22-02-2000. When the mis take came to his notice, he has rightly taken the action to cancel the said per mission granted on 22- 02-2000. The said action of the Principal Chief Con servator of Forest cannot be said to be illegal or arbitrary.
(3.) HOWEVER, the contention of the learned counsel for the petitioner is that the distance of 10 Kms. should not be taken as aerial distance, but as road distance. We do not find any valid reason or justification for giving such an interpretation to the order of the Hon'ble Supreme Court. The ob ject of prohibiting relocation of saw mills within 10 Kms. from any exist ing forest is to preserve and protect forests and to prevent illicit felling of trees and destruction of forests and also to avoid the adverse impact of pollution, if any, caused by saw mills, on the forests. Considering the above object, it is necessary and proper to understand the distance of 10 Kms. specified by the Hon'ble Supreme Court as aerial distance and not road distance. If it is understood as road distance, there are various possibili ties of circumventing the restriction and frustrating the object of the re striction and locating saw mills near the forests. The roads need not al ways be straight and short and very often in a Hill State like Uttaranchal, roads are zigzag and circular. Bearing in mind the public interest and the national interest, this Court cannot accept an interpretation which will di lute the rigour of the restriction im posed by the Hon'ble Supreme Court. Therefore, we are of the view that the Principal Chief Conservator of Forest was right and justified in un derstanding the order of the Hon'ble Supreme Court as one which prohib its relocation of saw mills within an aerial distance of 10 Kms. from an existing forest. The petitioner has no case that if the aerial distance is taken into account, the petitioner's saw mill is not located within 10 Kms. Hence, the challenge against Annexures 1 and 10 orders is bound to fail and the writ petition is liable to be rejected. Learned counsel for the peti tioner submitted that the above view taken by this Court will make it im possible for persons like the peti tioner to operate their saw mills in the State of Uttaranchal. It is con tended that if an aerial distance of 10 Kms. from the boundary of a forest is taken as the prohibited distance, practically no saw mill can be estab lished in most parts of the State of Uttaranchal. The contention may be or may not be factually correct. How ever, the question is what is more important - the existence of saw mills or the preservation of forests ? In our view, what is more important is the preservation of forests and not the existence of saw mills. The Principal Chief Conservator of Forest has only acted in accordance with Article 48a of the Constitution of India which is extracted hereunder : "48a. Protection and improve ment of environment and safe guarding of forests and wild life.-The State shall endeavour to pro tect and improve the environment and to safeguard the forests and wild life of the country. " Further, Article 51a (g) of the Constitution of India casts a duty on every citizen "to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living crea tures". Hence, forests have to be preserved and protected even at the cost of the business interest of the peti tioner.;