ORDER
Tapen Sen, J.
1. In this Writ Application the Petitioner has prayed for quashing of the order dated 12.7.2001 passed by the Divisional Forest Officer, Deoghar (Respondent No. 3) in Confiscation Case No, 27 of 2000 by which the application for grant of licence was refused and the Petitioner was. directed to displace his Saw Mill within fifteen days from the order and deposit those 21 logs (which had been confiscated during the year 1995) with the Range Officer of Forest, Deoghar soil Conservation Range at Kalyanpur Range Campus. By the same order the other 63 pieces of logs and 25 pieces of Sawn Timber were released with a direction upon the Petitioner to dispose off the same within fifteen days from the order.
2. The Petitioner has also made a prayer for a direction upon the Respondents to grant him the necessary licence treating him to be licencee with effect from 1995 (from the date the Petitioner had deposited the requisite fee) and further, to renew the licence in terms of the Bihar Saw Mill Regulation Act, 1990.
3. The Petitioner filed an application for grant of licence in the year 1995 for operation of a Saw Mill in terms of the said Act, Subsequently, on or about 29.5.1995, twenty one pieces of logs were seized and a confiscation proceeding was initiated being Confiscation Case No. 3 of 1995 whereafter, the order of confiscation was passed on 18.10.1995. Being aggrieved, the Petitioner filed an appeal before the Conservator of
Forest, Santhal Pargana, Circle Deoghar, who by order dated 20.6.1996 held that the Confiscation of the Mill was illegal.
4. The Petitioner has further stated that the criminal case which was instituted against the Petitioner on the same allegations was tried and the Judicial Magistrate, 1st Class, by his Judgment dated 6.8.1997 held that the prosecution had miserably failed to prove the allegations and accordingly, he acquitted the accused for allegations leveled against under Section 33 of the Indian Forest Act and. Section 14 of Bihar Kashtha Chiran (Vinimiyan) Act, 1990 and the Petitioner was discharged from the liabilities of bail bonds. No appeal was filed by the Respondents against the Judgment dated 6.8.1997. A photocopy of the aforementioned Judgment dated 6.8.1997 is Annexure-1 to the Writ Petition.
5. Pursuant to the aforementioned Judgment, the Petitioner filed an application that since he had been given a clean acquittal, therefore, the matter relating to grant of licence pending since 1995 should be taken up and licence should be granted and renewed so that the Petitioner could carry on his business. Since the Respondents went on sitting tight over the matter, the Petitioner filed an application on 12.1.2001 vide annexure 2. The Petitioner has stated that on 7.2.1997, the Respondent No. 3 (Divisional Forest Officer, Deoghar) asked the Petitioner to be present on 18.2.1997 along with all documents for purposes of registration/renewal. Copy of this letter has been marked as Annexure-4. Pursuant to the aforementioned letter dated 7.2.1997, the Petitioner approached the Respondent No. 3 but the grievance of the Petitioner is, that inspite of this, the Respondents are sitting tight over the matter for reasons best known to them.
6. The Petitioner has further made a grievance that on 29.12.2000 the Respondents again seized the Saw Mill of the Petitioner together with 63 pieces of wood which were termed to be illegal although the Petitioner went on showing valid documents in support of his contention that the wood had been validly purchased and bought on the basis of a valid loading certificate.
7. On the basis of the aforesaid seizure, Confiscation Case No. 27 of 2000
was started against the Petitioner and the Petitioner has asserted that this Confiscation Case is illegal because the wood had been validly purchased and inspite of valid documents having been shown, the Respondents went on treating the wood to have been illegally procured. Consequently, the Petitioner filed Writ Petition CWJC No. 2170 of 2001 before this Court and by order dated 30.5.2001 the matter was remanded to Divisional Forest Officer, Deoghar (Respondent No. 3) who was directed to dispose off the representation of the Petitioner by a reasoned order within a period of six weeks from the date of receipt/production of a copy of this order.
8. On 17.7.2001, the Petitioner received a letter in the which the impugned order dated 12.7.2001 was annexed.
9. A counter affidavit in this case has been filed wherein it has been stated that M/s. Singh Saw Mill at Deoghar, the owner where of is Vidya Sagar Singh (Petitioner) established a Saw Mill without obtaining licence and he was running the Saw Mill illegally and so he was asked by the Divisional Forest Officer to close down the Mill. He applied for grant of licence on 17.5.1995 and upon inquiry it was found that the Saw Mill Campus had on 28.5.1995, sixteen logs of Sisham, Two logs of Gamhar and three logs of Semal which were brought there without any Transit Permit. Therefore, according to the Respondents, the Petitioner had violated Section 41 and 42 of the Indian Forest Act, 1927 (Bihar Amendment Act, 1989). Consequently, these logs were seized and Confiscation Case No. 03/1995 had been initiated and on 18.10.1995, an order of confiscation of the twenty one logs together with the saw mill as also cancellation of licence fee and security money was passed. Against the aforementioned order, the Petitioner appeared before the Conservator of Forests, Deoghar and filed an appeal numbered as Appeal No. 1 of 1995. On 26.6.1996, an order was passed confirming the confiscation of twenty one logs of timber referred to above as also the cancellation of licence and forfeiture of security money. However, the saw machine was ordered to be released on the ground that the forest officers had not mentioned the same in the seizure list.
10. Thereafter, the same matter was beared in a parallel criminal case and a judgment was passed acquitting the accused persons. The Respondents have taken a plea that while passing the order of acquittal, the learned Judicial Magistrate had no power to hear the matter relating to confiscation of saw machines and seized timber logs, the Respondents have further stated in the counter affidavit that twenty one seized timber logs, even after the order of confiscation are still lying in the custody of the son of the Petitioner and Vidya Sagar Singh, the owner of the Saw Mill has not returned the same in spite of many reminders.
11. A further contention of the Respondents is that Vidya Sagar Singh was never issued a licence and he was running the mill illegally. The State Government vide his letter No. 343, dated 28.10.2000 had instructed all Divisional Forest Officers to close down all illegal Saw Mills and restrict the Saw Mills in the District of Deoghar.
12. The Respondents have further contended that as per the direction of the Hon’ble Supreme Court in PIL No. 202 of 1995 there has been a complete restriction in the issuance of new licences and as per report of the Committee constituted by the State Government upon direction of the Supreme Court, the number of Saw Mills in Deoghar district has been fixed to twenty one. In these circumstances, the Respondents have said that by reason of the impugned order, a sympathetic view has been taken by the Court and last chance has been given to Vidya Sagar Singh to displace the Saw Mill from its foundation within fifteen days and do the needful as indicated in the impugned order. According to the Respondents and as stated above, it had been decided that there would be only twenty one number of Saw Mills in the District of Deoghar although thirty six Saw Mills had already been granted licence and therefore, the State Government had been directed to minimize the Saw Mills within a period of three years and pursuant to the aforementioned direction of the State Government, a three member Committee consisting of the Deputy Commissioner, Superintendent of Police and Divisional Forest Officer of the district of Deoghar held its meeting on 14.2.2001 and decided that new Saw Mill
Licences could not be granted to the Petitioner as it would be violating the Supreme Court’s order.
13. Thus, from what appears from the pleadings made is that the Petitioner had applied for renewal in the year 1995 but it was never granted to him. the learned counsel for the Petitioner contends that as per the Proviso appended to Section 5(b) of the Bihar Saw Mill Regulation Act, 1990 the Petitioner would be deemed to have been granted a licence since the Respondents did not pass any orders on his application. The learned counsel for the Petitioner, therefore, contends that the petitioner operated the Saw Mill on the basis of a deemed licence, the aforementioned contention of the learned counsel for the Petitioner is rejected outright as establishment of Saw Mill and operating it as a deemed licence amounts to giving a licence to a person to use the forest for non-forest purposes without complying with the requirements of law. A Division Bench of this Court, in the case of Narayan Saw Mill v. State of Bihar and Ors., reported in 2002 (3) JLJR 306 : 2002 (3) JCR 690 (Jhr) has held that the proviso to Section 5 is against public policy and is liable to be struck down and that there cannot be a deemed permission to operate a Saw Mill.
14. The learned counsel for the Petitioner then contended that the impugned order is illegal and it has misinterpreted the order of the Supreme Court. The learned counsel for the Petitioner relied upon a Judgment of Anand Timber v. State of Jharkhand and Ors., wherein it has been held that refusal to renew a licence on the basis of the order of the Supreme Court reported in AIR 1997 SC 1228 and also the order dated 4.3.1997, reported in AIR 1997 SC 1233 is not sustainable in law because the direction of the Supreme Court was in relation to closing down of unlicenced Saw Mill in Maharastra and Uttar Pradesh and there was no such direction concerning the unified State of Bihar. The aforementioned Judgment of Anand Timber v. The State of Jharkhand and Ors., is reported in 2002 (3) JCR 54 (Jhr) : 2002 (3) JLJR 340. It would be relevant to quote paragraphs 8, 9 and 10 of the said Judgment (JCR Page 55).
“8. From the orders of the Supreme Court quoted hereinabove it is clear that the Supreme Court has not issued direction to close down all saw mills and to stop grant of renewal of licence for such saw mills which are situated outside the forest area. The direction of the Supreme Court is to close down all unlicensed saw mills related to the State of Maharashtra and the State of Uttar Pradesh and there was no such direction so far State of Bihar (now Jharkhand) is concerned. As noticed above it is not the case of the respondents that since the saw mill of the petitioner is situated within the forest area, therefore, licence could not be renewed. The authority refused to renew the licence only because of order dated 12.12.1996 passed by the Supreme Court.
9. Similar question arose before the Patna High Court in the case of Rajeev Ranjan Sinha v. State of Bihar and Ors., 1999 (3) PLJR 955. In that case also application for establishing saw mill in the district of Aurangabad out-side the forest area was rejected on the similar ground. The Bench considering the order passed by the Supreme Court observed :
“I am, therefore, clearly of the view that the direction of the Principal Chief Conservator of Forest not to issue any fresh licence for saw mill in this State was quite unjustified and cannot be sustained in the eyes of law. In so far as this State is concerned prior permission of the Central Government would be required for establishing a saw mill within a forest or within a forest area. But a saw mill outside a forest or a forest area will not attract this restriction and it would not be covered by the direction of the Supreme Court relied upon by the AAG III.”
10. Taking into consideration the entire facts of the case and the orders passed by the Supreme Court, I am of the view that the impugned order issued by the authority refusing to renew the licence is not sustainable in law. The matter needs reconsideration by the respondent-authority.”
15. The learned counsel for the Petitioner, however, relied upon an unreported Judgment of Madan Lal Gupta v. State of Bihar and Ors., passed on 23.7.2002 in LPA No. 275 of 1997 (R) [now reported in 2002 (3) JCR 317 (Jhr)]. It appears that in the said Judgment, the Supreme Court’s order in the case of T.N. Godavarman Thirumulkpad v. Union of India, reported in (1997) 2 SCC 267 was considered. Paragraphs 5, 6, 7, 8 and 9 are relevant to be quoted (See JCR Page 318-319).
“5. We have very carefully gone through the judgment of the Supreme Court in the case of T.N. Godavarman Thirumulkpad (Supra) and find that whereas the better part of the judgment deals with some of the individual States, Part I being general in nature, deals with the entire country and in para 1 of Part I there is indeed a mention of Section 2 of 1980 Act but it is with respect to the “Forest area” and the on going activities within any forest area. The running of a saw mill, therefore, as has been mentioned in para 1 of Part I of the aforesaid judgment relates to a saw mill operating within a forest area. We are saying so because their Lordships were themselves referring to and relying upon Section 2 of the 1980 Act and while dwelling upon the scope and ambit of Section 2, their Lordships were issuing directions with respect to the running of a saw mill within a forest area.
6. The aforesaid judgment in T.N. Godavarman Thirumulkpad (supra) came up for fresh consideration recently by the Supreme Court in the case of Jawahar Lal Sharma and Ors. v. Divisional Forest Officer, U.P. and Ors., reported in (2002) 3 SCC 42. In para 5 of this judgment, their Lordships by making observations that because of the Supreme Court being seized or the matter there has been reluctance on the part of the government officials to deal with the grant of saw mill licences and their renewals, observed that no direction or order has been made by the Supreme Court to the effect that even existing licences should not be renewed. Actually in para 6 of the aforesaid judgment their Lordships very clearly made
pertinent and specific observations to the effect that the holders of the existing licences could not be denied the right of their renewal. The two judgments, therefore, read together clearly point out that if a saw mill is situated in a non forest area and if the applicant is the holder of an existing licence, Section 2 of 1980 Act cannot be made applicable in such a case and therefore, there is not any requirement of any prior approval of the Central Government before grant of the renewal of such a licence.
7. As has been noticed at the outset, the petitioner was holding the licence granted to him under the Bihar Saw Mills (Regulation) Act, 1990, Section 5 of the aforesaid Act deals with the question of an applicant making an application for the grant of a licence and Section 7 deals with all matters relating to the grant and renewal of the licence. On gong through the aforesaid 1990 Act, we find that this Act also nowhere lays down that the prior approval of the Central Government should be a requirement before grant of renewal of a licence under the Act.
8. We have been told that the saw mill of the appellant is located in Dhanbad Town which, according to the appellant is not a forest area.
9. For the reasons aforesaid, therefore, this appeal is allowed, the order of learned Single Judge is set aside. The respondents are directed to reconsider the application of the appellant-writ petitioner for renewal of the licence on the basis of the observations made hereinabove and if, indeed it is found that the saw mill is located in a place which is not a forest area (hence not covered by Section 2 of 1980 Act) to decide and dispose of the application accordingly.”
16. In view of the observations made in the aforementioned cases which have been quoted above, it is, therefore, clear that one of the grounds on which the Respondents have refused to grant licence is on the basis of the Judgment of the Supreme Court. The aforementioned unreported Judgment has taken into
consideration some relevant paragraphs of the Judgment of the Supreme Court which has explained the case of T.N. Godavarman Thirumulkpad v. Union of India, this Judgment has been passed in the case of Jawaharlal Sharma and Ors. v. Divisional Forest Officer, U.P. and Anr., reported in 2002 (3) SCC 42. The relevant paragraphs of the aforementioned Judgment are necessary to be quoted and paragraphs 4 to 8 are as follows :
“4. In civil appeal arising out of SLP (C) No. 4694 of 2001 also the two appellants, namely, Azeemun Nisha and Govind Prasad Sharma are holding licences for establishment and operation of saw Mills, they have been seeking renewals. Renewal was not granted in the years 1998 and 1999 and rejected by order dated 26.7.2000. They also filed a writ petition before the High Court of Allahabad which has been disposed of by a similar order by a Division Bench allowing liberty to the appellants to move fresh applications for grant of licence.
5. It is not necessary for us to go into noticing further details of facts in view of the direction which we propose to make. It appears that a larger issue dealing with ecology, protection and conservation of forests in T.N. Godavarman Thirumulkpad v. Union of India, is pending in this Court, wherein from time to time directions are being issued. Two such directions dated 12.12.1996 and 4.3.1997 are to be found reported as (1997) 2 SCC 267 and (1997) 3 SCC 312. On account of the Supreme Court of India being seized of the matter and monitoring the issue, there has been reluctance on the part of the government officials to deal with saw mill licences and their renewals. In the cases before us, the renewal fees have been deposited by the appellants but orders of renewal are not passed, A vague plea is raised on behalf of the respondents that the applications for renewal were not in prescribed proforma. If that be so, the defect could have been pointed out to the applicant concerned and an appropriate application in the prescribed
proforma could have been called for to be substituted in place of defective application, if any, or such other particulars as may be necessary could have been called for. The relevant consideration for, and the rights and obligations flowing from a prayer for renewal of a pre-existing licence are different, rather substantially at variance from those for an application for the grant of a fresh licence. The learned counsel for the appellants submitted that an application for the grant of a fresh licence may not be entertainable at all though the appellants may be entitled to renewal subject to such directions, as the Supreme Court of India may be pleased to make. The orders made by the High Court do not, therefore, meet the ends of justice. Admittedly, the licence of any of the appellants has not been cancelled.
6. No order or direction made by the Supreme Court of India to the effect that even existing licences shall not be renewed, has been brought to our notice. On the contrary, the learned counsel for the appellants has invited our attention to orders dated 24.1.2000 passed in Gyaneshwar Prasad Singh v. Van Sanrakshak Varanasi Vritya, Varanasi, order dated 19.2.2000 in Kanwal Deen Chauhan v. Conservator of Forests, order dated 31.3.2000 in Vishwa Bhandar Saw Mills v. Divisional Forest Officer, wherein having noticed the directions made by this Court in T.N. Godavarman Thirumulkpad v. Union of India, the High Court of Allahabad has in similar circumstances, quashed the orders passed by the respondents and directed that on completing all the necessary formalities by the petitioners therein and depositing the licence renewal fee for all the previous years as well as the current years, licences to run the saw mill in favour of the petitioner therein shall be granted if there be no legal impediment. The learned counsel submitted that, there is no reason why the same High Court should not have taken a similar view in the cases of these appellants. We find merit In the submission of the learned counsel.
7. For the foreging reasons, the appeals are allowed and disposed of by directing that the prayer for renewal of the licence made by each of the ap-pelalnts shall be dealt with by the competent authorities of the State in accordance with law. In doing so, the authorities shall keep in view the directions issued or which may be issued by the Supreme Court of India from time to time.
8. We make it clear that we have disposed of the individual cases of the appellants before us and if any orders generally made or to be made by the Supreme Court of India in public itnerest may be inconsistent with the directions made hereinabove, then the former shall be given effect to. The appeals stands disposed of accordingly.”
17. Thus, from a bare perusal of the observations of the Supreme Court, it is appearent that there is no ban on renewal of licences and the Respondents, while passing the impugned order appear to have not properly appreciated this aspect of the matter. Therefore, so far as the refusal to grant the licence on the basis of the order of the Supreme Court is concerned, the same needs reconsideration on the basis of reasonings which would be appropriate in the facts and circumstances of the case. In the instant case, the Petitioner had no licence at all. He had applied for one and therefore what was the basis for restricting the saw mills to a limited number is not well explained save and except a vague plea that the Committee decided to do so. However and as has already been noticed earlier, the direction of the Hon’ble Supreme Court was in relation to Maharashtra and Uttar Pradesh only.
18. In that view of the matter, the impugned order is set-aside and the matter is remanded for reconsideration of the entire matter in the light of the observations made above and after taking into consideration the foregoing paragraphs strictly in accordance with law. This order would not prejudice the case of the Petitioner in case they prefer to file appeal against the impugned orders in accordance with law.
19. With these observations and directions this Writ Petition stands disposed off. There shall, however, be no order as to costs.