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Y. Penchalaiah v/s The Government of Andhra Pradesh, Environment, Forests, Science & Technology, (Section. II) Department, Rep., by its Principal Secretary, Secretariat, Velagapudi & Others

    Writ Appeal Nos. 365 & 366 of 2021

    Decided On, 27 August 2021

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE CHIEF JUSTICE MR. ARUP KUMAR GOSWAMI & THE HONOURABLE MR. JUSTICE NINALA JAYASURYA

    For the Appellant: P. Nagendra Reddy, Advocate. For the Respondents: GP for Forests.



Judgment Text

(Taken up through video conferencing)

Common Judgment: (Arup Kumar Goswami, CJ.)

1. Heard Mr. P. Nagendra Reddy, learned counsel for the appellant. Also heard Ms. V. Sujatha, learned Government Pleader for Forests appearing for the respondents.

2. W.A.No.365 of 2021 is preferred against the common judgment and order dated 23.04.2021 passed by the learned single Judge in W.P.No.5482 of 2019 and W.P.No.28856 of 2014, insofar as it relates to W.P.No.5482 of 2019, while W.A.No.366 of 2021 arises out of the same common judgment and order dated 23.04.2021, insofar as it relates to W.P.No.28856 of 2014.

3. Since the issue involved in both the writ appeals and the parties are one and the same, they are heard together and are being disposed of by this common judgment.

4. The writ petitioner, who is the appellant in both the writ appeals, is the proprietor of M/s Sri Lakshmi Saw Mill, situated at Kaligiri Village and Mandal, SPSR Nellore District. He filed W.P.No.28856 of 2014 stating that he had purchased the saw mill along with the site and machinery from Smt. V. Kanakamma, who sold the same due to her ill-health and financial problems, and thereafter, he made an application to respondent No.3, viz., Divisional Forest Officer, Nellore, for changing ownership and also for shifting the saw mill to the existing place in Sy.No.631/2-1 of Kaligiri village, by enclosing all relevant documents. Based on the recommendations made by respondent No.2 after inspecting the site and saw mill, respondent No.3 granted permission for change of ownership and for shifting the saw mill to a place in Sy.No.631/2-1 of Kaligiri village, vide proceedings dated 22.10.2011. The licence was renewed by respondent No.3 for 2012 by proceedings dated 06.11.2012 and on 30.11.2013, the petitioner made an application to respondent No.3 by enclosing all the requisite certificates and paying requisite fee for renewal of licence for the period 2014 as per subclause( 2) of Rule No.4 of A.P. Saw Mills (Regulation) Rules, 1969 (for short, ‘the Rules of 1969’).

5. It is further stated that respondent No.3 issued a notice dated 20.01.2014 stating that the competent authority vide Rc.No.4981/2000/F9 dated 07.11.2011 cancelled the permission granted to the petitioner and that the saw mill is within 5 K.M. radial distance of Reserved Forest, which is against the Rules of 1969 and therefore, the petitioner was requested to vacate the present place of saw mill and to apply for shifting to a place which is beyond 5 K.M. radial distance from any Reserved Forest. It is asserted that bar of setting up of a saw mill within 5 K.M. of Reserved Forest boundary under the Rules of 1969 applies only to new saw mills and not to the existing saw mills. It is pleaded that respondent No.2 also issued similar notices on 07.03.2014, 11.04.2014 and 17.06.2014 requesting the petitioner to vacate the present place of saw mill. It is also pleaded that cancellation order dated 07.11.2011 was not served upon the petitioner and that without issuing any notice, as required under Rule 9 of the Rules of 1969, the order of cancellation was passed.

6. Challenging the notices dated 20.01.2014, 07.03.2014, 11.04.2014 and 17.06.2014, the petitioner filed W.P.No.28856 of 2014 along with a prayer to direct respondent Nos.2 and 3 to permit the petitioner to run the saw mill by accepting the renewal fees.

7. On 07.10.2014, this Court passed an interim order in W.P.No.28856 of 2014, restraining the respondents from taking any action in pursuance of the impugned notice dated 17.06.2014 of respondent No.2, pending further orders.

8. While matter rested thus, the petitioner filed another writ petition being W.P.No.5482 of 2019 questioning the action of respondent Nos.2 and 3 in interfering with the running of the petitioner’s saw mill. It is stated in the affidavit that in view of the interim order passed by this Court on 07.10.2014 in W.P.No.28856 of 2014, though no interference with the running of the saw mill was caused till March, 2019, on 31.03.2019, all of a sudden, the staff of respondent No.2 visited the saw mill and asked the petitioner not to run it. It is pleaded that no prior notice or reasons were assigned before directing to stop operation of the mill. On 03.04.2019, the staff of respondent No.2 warned the petitioner not to operate the saw mill and again on 04.04.2019, the staff of respondent No.3 inspected the saw mill and directed the petitioner not to operate it. It is pleaded that though the petitioner brought to the notice of respondent Nos.2 and 3 about the interim order passed by this Court, respondent No.3, without considering the same, was threatening to close down the saw mill on the ground that the same is within 5 K.M. Radial distance of the Reserved Forest boundary. It is pleaded that the petitioner has been paying the renewal fees by enclosing the relevant documents till November, 2018 without any default.

9. Respondents filed counter-affidavit in W.P.No.28856 of 2014 stating, amongst others, that on verification of G.P.S. readings in Arc-view software, it was noticed that the proposed place for shifting of saw mill is less than 5 K.M. from Chinnannalur Reserved Forest and the permission granted for shifting of the mill to the newly proposed location in Sy.No.631/2-1 of Kaligiri Village, is against the order of the Hon’ble Supreme Court. It is pleaded that a notice dated 25.10.2011 was issued to the petitioner asking him to show cause as to why the permission for shifting of saw mill accorded by order dated 22.10.2011 shall not be withdrawn as the proposed location is within 5 K.M. from the Reserved Forest area, and the said notice on being served upon the petitioner, he submitted a reply on 03.11.2011. Subsequently, by order dated 07.11.2011, respondent No.3 passed an order to the effect that order to the extent of permitting the shifting of saw mill accorded was withdrawn as per Rules, while keeping the change of ownership intact. The licence of the petitioner was renewed for the year 2012 to run the saw mill at the place for which original licence was granted i.e., location in Sy.No.775/12 of Kaligiri village. The petitioner had not submitted renewal application for the year 2013 and the validity of his licence expired on 31.12.2012. However, the petitioner had submitted an application to respondent No.3 on 30.11.2013 for renewal of licence for the year 2014, without enclosing timber accounts in Form-III(A) and Form- III(B). It is pleaded that though the licence was not cancelled by the Licensing Authority, it lapsed due to non-submission of renewal application and payment of required fee for renewal of saw-mill licence for the year 2013 within the stipulated time.

10. In the counter-affidavit filed in W.P.No.5482 of 2019, in addition to the stand taken in the counter-affidavit filed in W.P.No.28856 of 2014, it is stated that subsequent to the judgment of the Hon’ble Apex Court in W.P. (Civil) No.202 of 1995, dated 12.12.1996, in exercise of the powers conferred by Section 29 read with Section 68 of the Andhra Pradesh Forest Act, 1967 and in supersession of the Rules of 1969, the Government of Andhra Pradesh made Rules called the Andhra Pradesh Wood Based Industries (Establishment and Regulation) Rules, 2018 (for short, ‘Rules of 2018’), which was issued vide G.O.Ms.No.48, Environment Forests Science & Technology (Section-II) Department, dated 08.05.2018, to regulate the location and functioning of the wood based industries in the State of Andhra Pradesh and the same came into effect from 11.05.2018. At paragraph No.5, the respondents, while admitting that the writ petitioner had submitted an application along with necessary challan and documents to respondent No.3 on 30.11.2013 for renewal of licence for the year 2014, stated that no such application was filed along with requisite fee and necessary documents for renewal of licence for the year 2013. It is pleaded that Rule 4 of the aforesaid Rules of 2018 requires any person desiring to install or erect or operate a wood based industry to make an application in Form No.I by enclosing prescribed documents and paying necessary fees, etc. Every Proprietor of an existing wood based industry is required to obtain licence from the Licensing Authority within sixty days from the publication of the Rules of 2018 and any existing wood based industry shall not operate beyond sixty days from the date of publication of these Rules, without a valid licence under these Rules. It is averred that the writ petitioner had also not made any application in compliance of the Rules of 2018 and he is running the saw mill without any valid licence.

11. The writ petitioner filed reply affidavit in W.P.No.5482 of 2019, wherein it is, amongst others, stated that he had submitted application on 24.11.2012 for renewal of licence for the year 2013 by enclosing the challan, and similarly for the purpose of getting renewal for the year 2015, he had submitted application on 08.11.2014. It is stated that when the Rules of 2018 had come into force in the year 2018, he submitted application by enclosing challans for a sum of 5,000/- on 26.06.2018.

12. Upon considering the materials on record and hearing the learned counsel appearing for both the parties in the writ petitions, the learned single Judge dismissed both the writ petitions.

13. The learned single Judge observed that the Rules of 1969 as well as Rules of 2018, which came into force on 11.05.2018, apply to the facts of the case. The learned single Judge did not advert to the aspect relating to the proceedings dated 07.11.2011 and proceeded to consider as to whether the petitioner had renewed his licence in order to determine as to whether the petitioner has got any subsisting right to run the saw mill. The learned single Judge while dealing with that aspect of the matter, observed in the following manner:

“The W.P.No.28856 of 2014 and the facts therein make it clear that 1969 Rules are applicable. These rules clearly specify in Rule 5(6) the manner in which the application is to be filed. If the renewal application is not filed before the end of February, it is clearly stipulated that the licence will lapse and the Saw Mill owner should apply for a fresh licence. The necessary documents which have to be furnished are mentioned in Rule 4(1)(a) along with the form of the application which is given in Appendix (1) as Form 1. Rule 7 talks of the registers called 3(a) and 3(b) registers which are to be submitted.

In the case on hand, the petitioner’s licence had expired and no documentary proof is filed to show that the renewal was applied for. Form-1 and the enclosures as per the relevant Rules were to be filed before February. Except for producing some challans showing the payment, in November, 2014, November, 2016 and November, 2017, no document is filed to show that a proper application complete in all respects has been filed. It is the settled law that once a rule or a statute prescribes the method in which an action has to be taken, it should be done in that manner alone. It is clear that 1969 Rules were not followed. Even if the 2018 Rules are taken into consideration, the condition for a licence and renewal are stipulated. These provisions are in pari materia with the earlier provisions. If the renewal application is not submitted with Form 1 as per Rule 4, and before the end of February, as per clause 10 (2), it shall be deemed to have been lapsed. Rule 10 (3) talks of the licence holder enclosing the proof of submission of timber accounts. It is clarified if the accounts are not furnished, the application shall not be considered by the licencing authority. The Rules, therefore, are very clear. The petitioner was under an obligation to submit an application as mandated by law. He did not do so. The mere fact that he has paid some challans will not give him a right to state that his licence should be extended as the fees is paid. Admittedly, the licence has lapsed. No proof was filed to show that a correct and proper application complete in all aspects has been submitted. In the absence of such proof, the petitioner cannot claim any relief from this Court. With a lapsed/expired licence the petitioner cannot get any relief from this Court. Unless he makes a proper application complete in all respects and strictly as per the rules he cannot claim any relief.

Accordingly, both the writ petitions are dismissed. No order as to costs. As a sequel, miscellaneous petitions, if any pending shall stand dismissed.”

14. Mr. P. Nagendra Reddy, learned counsel for the appellant, submits that the finding of the learned single Judge that the appellant had not submitted application for renewal of licence is perverse as the appellant/writ petitioner had submitted renewal applications in accordance with the Rules. He has drawn our attention to the letters available at page Nos.76 and 78 of the appeal papers in W.A.No.366 of 2021 by way of illustration to contend that the writ petitioner was regularly applying for renewal of licence. It is to be noted that the said documents are also available in W.A.No.365 of 2021 at page Nos.76 and 78.

15. The learned Government Pleader for Forests, while supporting the order of the learned single Judge, urged that the petitioner is running the mill unauthorizedly without any licence.

16. At this juncture, it will be relevant to take note of relevant portion of Rules 6 and 7 of Rules of 1969, which are as follows:

“6. (1) The licensee should submit renewal application within one month prior to expiry of existing licence.

(2) If no renewal application is submitted to the licensing authority upto 1st December, a late fee of Rs.250/- shall be levied upto February succeeding year, irrespective of duration of delay, if renewal application is not submitted before the end of February it will be deemed that the licence has lapsed and the Saw Mill owner should apply for fresh licence. The security deposit available with the licensing authority shall stand forfeited.

(3) When renewal application is made, the licence holder should furnish the timber accounts in the format prescribed in these rules for the entire licence period and if the accounts are not furnished, the renewal application shall not be considered by licensing authority.

(4) When renewal application is submitted to licensing authority, and till renewed licence is received, the acknowledgment given by the licensing authority shall be treated as licence by inspecting officers.

7. (1) Registers as given in Form-III (A) and (B) of these rules shall be maintained by every licence holder for accounting fully and properly the timber received excluding the exempted species under transit rules in the Saw Mill for conversion, and its disposal. The registers should be made available at any time to all inspecting officers along with permits/invoices in original, within the Saw Mill premises.”

17. Perusal of Rule 6 (1) of the Rules of 1969 would go to show that the licencee should submit renewal application within one month prior to expiry of existing licence. Rule 6 (2) provides that if no renewal application is submitted to the licensing authority upto 1st December, a late fee of Rs.250/- shall be levied upto February of the succeeding year, irrespective of duration of delay. It also provides that if renewal application is not submitted before the end of February, it will be deemed that the licence has lapsed and the saw mill owner should apply for fresh licence and that the security deposit available with the licensing authority shall stand forfeited.

18. The undated letter, which is available at page No.76, would go to show that the petitioner had requested the District Forest Officer, SPSR Nellore District, for renewal of licence of saw mill for the years 2013-14-15. As per Rule 6 (3) of the Rules of 1969, when renewal application is made, the licence holder should furnish the timber accounts in the format prescribed in the rules for the entire licence period and if the accounts are not furnished, the renewal application shall not be considered by the licensing authority. Though it was stated that he had submitted copies of accounts and 3(A) & 3(B) Challan Forms relating to the year 2013-2014 in the office of Kavali Range, the petitioner had not produced any acknowledgement in support thereof. Though some challans were produced by the writ petitioner for renewal of licence, none of them demonstrates payment of fee for renewal of licence for the year 2013.

19. Perusal of the letter dated 18.11.2014, available at page No.78, goes to show that the petitioner had paid an amount of Rs.1000/- vide Challan No.65106, dated 18.11.2014 for renewing the licence of saw mill. The said challan, available at page No.34 of appeal papers in W.A.No.365 of 2021, indicates that the same was for renewal of saw mill licence for the year 2015. However, it was also stated in the said letter that the petitioner would submit related 3A and 3B forms in the first week of January. No material is laid showing that the same were actually submitted in the month of January.

20. There is no evidence to show that the petitioner had made application enclosing all documents and fee for renewal of licence for the year 2013. Therefore, we are in agreement with the finding of the learned single Judge that in the absence of any application made by the petitioner as per the Rules of 1969, the saw mill licence cannot be renewed as the saw mill licence had lapsed.

21. There is another aspect of the matter.

22. Perusal of counter-affidavit goes to show that a show cause notice dated 25.10.2011 was issued by the Divisional Forest Officer, Nellore asking the petitioner to show cause as to why the shifting of saw mill accorded by proceedings dated 22.10.2011 should not be withdrawn within a period of 10 days from the date of receipt of the notice and that the petitioner had submitted his written explanation dated 03.11.2011 admitting that the location of saw mill in Sy.No.631/2-1 of Kaligiri village is within 5 K.Ms of Reserved Forest area. The statement made by the respondents that the petitioner had submit

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ted explanation to the show cause notice on 03.11.2011 has not been contested. Perusal of the order dated 07.11.2011 goes to show that the writ petitioner had submitted a reply stating that he had purchased the saw mill and hence, requested for permission for shifting of saw mill stating that he did not know about the provision in the Rules that the saw mill cannot be shifted to a place which is within 5 K.M. from the boundary of Reserved Forest. 23. Though in the affidavit it is stated that the petitioner himself admitted in the written explanation dated 03.11.2011 that he had admitted the fact of location of the saw mill in Sy.No.631/2-1 of Kaligiri village is 5 K.Ms from the Reserved Forest, such admission does not find place in the order dated 07.11.2011. In the un-dated document at page 65 of W.A.No.365 of 2021, however, there is an admission on the part of the petitioner that he would shift the mill to old premises or another place beyond 5 K.Ms from the Reserved Forest, while making a request to renew the saw mill licence for the year 2013. The said un-dated letter refers to the order dated 07.11.2011 by which shifting permission was cancelled. Therefore, obviously, the aforesaid document at page 65 was not the reply to the show-cause notice dated 22.10.2011. What is, however, more important to note is that in the reply-affidavit filed by the petitioner, he did not raise any dispute with the aforesaid un-dated letter. 24. The fact that the writ petitioner was aware of the order dated 07.11.2011 is, thus, evident from the un-dated letter at page No.65 of appeal papers in W.A.No.365 of 2021. It is significant to note that in W.P.No.28856 of 2014, the petitioner had not put to challenge the aforesaid proceedings dated 07.11.2011. 25. In view of the above discussions, we find no good ground to interfere with the order of the learned single Judge. 26. Accordingly, the Writ Appeals are dismissed. No costs. Resultantly, all the pending miscellaneous applications shall stand closed.
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