PETITIONER:
SUSHILA SAW MILL
Vs.
RESPONDENT:
STATE OPF ORISSA & ORS.
DATE OF JUDGMENT31/07/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
PARIPOORNAN, K.S.(J)
CITATION:
1995 AIR 2484 1995 SCC (5) 615
1995 SCALE (4)776
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This specila leave petition arise from the order of the
Division Bench of Orissa High Court dated march 16, 1995 in
civil Writ Petition No. 1545 of 1995. The petitioner has
established a Saw Mill in the year 1980 in Keonjhas District
of Orissa State. The notice under s.4(1) of Orissa Saw Mills
& Saw Pits (Control) Act 1991 (for short `the Act’) was
issued to the petitioner to close down its operations with
immediate effect. Challenging the validity of s.4(1) of the
Act and the notice, he filed the writ petition contending
that it violates hbis fundamental right to carry on trade
and business and also created invidious discrimination to
the Saw Mills/Saw Pits situated in that district vis-a-vis
other districts. It was also contended that the Act did not
create any total ban but gave discretion to the licensing
authority to grant or refuse the renewal of licence. Without
considering their application for renewal, direction to
close down the mill is arbitrary. the Division Bench
negatived both the copntentions relying upon its Full Bench
judgment in Lakshmi Narayan Saew Mills & Ors. v. State of
Orissa and Ors. (1995(1) OLR 1 FB). The petitioner placed
reliance on a Division bench judgment of that Court in in
M/s. Saraswati Saw Mills etc. etc. v. State of Orissa and
Ors (1995 (79) C.R.T. p.61). It is contended for the
petitioner that the views of the full Bench and the Division
bench judgment in question are not correct. A reading of the
ACt does not indicate that the statute imposed total
prohibition on the right to carry on the Saw Mill business.
Even optherwise, mills situated within the district have
been discriminated as its geographical contiguity of
District is such that no Saw Mill can be established or
exist within 10 k.m. as envisaged under proviso to s.4(1) of
the Act. Therefore, it violates their fundamental rights
under Arts. 14, 19(1)(g) and 301 of the Constitution.
The Act came into force on november 20, 1991. The Rules
made in exercise of the power under s.213 have come into
force on novemnber 18, 1993. The Act was enacted to regulate
establishment and operation ofd Saw Mills and Saw Pits and
trade of sawing to protect and conserve foprest and
environment and for matters incidental thereto of connected
therewith. The “forest area” is defined to mean all
noptified lands as forest under any law and administered as
forest whether State-owned oir private and whether wooded or
maintained as a potential forest land. Section 5 empowers
the Government to declare for a specified period reserved
forest etc. Section 4 of the Act provides establishment and
operation of Saw Mills and Saw Pits. The said section
provides as under:
“4. Establishment and operation of Saw
mill and Saw Pit.
1) On and after the appointed day, no
person shall establish or operate a saw
mill or saw pit except under the
authority and subject to the conditions
of a licence granted under this Act:
Provided that no person shall establish
or operate any saw mill or saw pit
within a reserved forest, protected
forest or any forest area within ten
kilometers from the boundary of any such
forest or forest area.
2) Notwithstanding anything contained in
sub-s.(10
(i) a saw mill or saw Pit, established
by the Orissa Forest DEvelopment
Corporation Limited or by any other
agency of the Government prior to the
appointed day, may continue to be
operated by such Corporation or agency,
as the case may be, and in such a case,
the Corporation or agency, as the case
may be, shall be deemed to be licensee
for the purposes of the Act;]
(ii) a Saw mill or saw pit other than
one referred to in clause (i) and
establishment prior to the appointed day
may continue to be operated and shall be
deemed to be a saw mill or saw pit, as
the case may be, licensed under this
Act:-
a) for a period of three months from the
appointed day; or
b) if an application made in accordaqnce
with section 6 for a licence is pending
on the expiry of the period specified in
clause (a0, till the disposal of such
application under sub-s.(2) of s.7″
The petitioner-saw Mill is admittedly situated within
the reserved forest or protected forest or forest area
within 10 K.m. from the boundary of such forest area. thus,
the petitioner’s Saw Mill is situated within the prohibited
area. The question, therefore, is whether the prohibition
contained in statute is valid in law? Section 4 regulates
establishm,ent and operation of Saw Mills and Saw Pits under
the Act enjoining that on and after the appointed day no
person shall establish or operate a Saw Mill or Saw Pit or
sawing operations except under the authority and subject to
the conditions of licences granted under the Act. The
proviso which was assailed in this petition puts further
embargo that no person shall establish or operate any SAw
Mill or Saw Pit which is situated in a reserved forest,
protected forest or any foprest area or within 10 k.m. from
the boundary of such forest or forest area. by applying non-
obstante clause, sub-s.(2) of s.4 relieves from the
operation of proviso to sub-s.(1) of s.4, only a Saw Mill or
a Saw Pit established by Orissa Forest DEvelopment
Corporation Ltd. or any other agency of the Government prior
to the appointed day. Their continuance and operationm are
only saved and they are deemed to be the licensee for the
purpose of regulation of the Act. Clause (ii) thereof
madates that the Saw mill or Saw Pit other then covered by
Clause (i) of S.4(2) established prior to the appointed day
may continue to be operated and shall be deemed to be sae
mill or Saw Pit and deemed to have been licensed under the
Act but it is only a transitory provision as indicated in
sub-clauses (a) & (b) thereof. In other words, the Saw Mill
established prior to the Act coming into force, i.e., the
appointed day and continuing to operate after the Act has
came into force, shall be entitled to carry on its
operations for a period of three months from the appointed
day or till the application for licence or renewal made
under s.6 is pending consideration adn is disposed of under
sub-s.(2) of s.7. Section 5 gives, power to the State to
declare prohibited area and ss. [2] envisages that during
the substisting period of the prohibited area the
consequences have been enumerated under sub-s.(2) of s.4 and
proviso to s.4[1], namely, prohibition to grant a licence
for establishment of a Saw Mill or a Saw Pit, or operatuion
of the existing saw mill or saw pit was restricted to the
period specificied in clauses[a] and [b] of s.4 [2] (ii);
and prohibition to mrenew the licences to a Saw Mill
situated within or a Saw pit ”shall cease to operate and
keep oits saw operation closed”. The only enablisng power
given to the licensing authority was to see that existing
stock may be disposed of any no claim for damages was
permitted. For their contravention s.13 gives power to
confiscate the property. Sections 6 and 7 operates to grant
licences in areas other than the prohibited area. Rule 3 of
the rules gives effect to th3e provision of the Act and the
grant of the licence will be subject to the conditions
enumerated in clauses (i) to (v) of Rule 6. Section 7
enjoins the licensing Officer to grant of refuse to grant
licence in accordance with the provision of the ACt and the
Rules and for the reasons enumerated thereunder.
It would thus be seen that the Act intended to regulate
the operatiuons of the Saw Mill and saw pit or sawing. The
right to carry on trade of business envisaged under Art.
19(1) (g) and Art. 301 is subject to the statutory
regulation. When the stature prescribs total prohibition to
continue to operate even tye existing Saw Mills situated
within the prohibited area, the right to carry on trade or
business is subject to the provisions of the ACt. proviso to
Section 4(1) puts a total embargo on the right to carry on
trade or business in Saw Milling operation or Sawing
operation within the prohibited area. It is settled law that
in the public interest restriction under Art. 19 [1] (g) may
in certain rare cases include total prohibition. This Court
in Narendra kumar & Ors. v. Union of India & ors. (AIR 1960
SC 430) held the it is reasonable to think that makers of
the constitution considered the word`restriction’ to be
sufficiently wide to save laws inconsistent with Art.19 (1).
or taking away the rights conferred by the Article,
provided this inconsistency or taking away was reasonable in
the interest of the differenmt matters mentioned in the
clause. There can be no doubt, therefore, that they intended
the word `restriction’ to include cases of prohibition also
in certain rare cases. The contention that a law prohibiting
the exercise of a fundamental right is in no case saved
cannot, therefore, be accepted. It is seen that the reserved
forest is being denuded or depleted by illicit felling.
Thereby denudation of the reserved forest was noticed by the
legislture. The preservation of the forest is a matter of
great public interest and one of the rare cases that
demanded the total ban by the leguslature. the Act came to
be enacted to impose a total ban in prohibited area for the
period during which the ban is in operation, to carry on Saw
mills business or Sawing operation within the prohibited
area. It is, therefore, clear that the statute intends to
impose a total ban which is found to be in “public
interest”. The individual interest, therefore, must yield
place to the public interest. Accordingly, it is neither
arbitrary not unreasonable. The Full Bench of the High Court
upheld the provision as valid and in this case it has
rightly declared the law. It is true that by geographical
contiguity, Keonjhar District appears to have been situated
within the prohibited area but that is the legislative
mandate that the entire area covered within the prohibited
zone is treated as a class as against the other area.
Therefore, when the limits of that district are within
prohibited zone of the reserved or protected or forest area
etc. or within 10 k.m., it is a legislative scheme to give
effect to the legislative object in the public interest to
preserve forest wealth and environment and to put end to
illicit felling of forest growth. Therefore, it is a class
legislation; it is not discriminatory and does not offend
Art. 14 or Article 301 of the Constitution. it is a valid
law. The Special leave petition is accordingly dismissed.