As per the case facts, the appeals challenged an order from the National Green Tribunal concerning the felling of trees of prohibited species. The State sought to continue granting licenses ...
No Acts & Articles mentioned in this case
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.2407-2412 OF 2021
THE STATE OF UTTAR PRADESH
& ORS. ETC. ETC. …APPELLANT (S)
VERSUS
UDAY EDUCATION AND WELFARE
TRUST AND ANR. ETC. ETC. …RESPONDENT(S)
WITH
CIVIL APPEAL NOS. 3144 -3146 OF 2022
CIVIL APPEAL NOS.3132 -3134 OF 2022
CIVIL APPEAL NOS.3135 -3137 OF 2022
CIVIL APPEAL NO.3138 OF 2022
CIVIL APPEAL NOS.4061 -4062 OF 2022
CIVIL APPEAL NO.3141 OF 2022
CIVIL APPEAL NOS.2547 -2548 OF 2020
CIVIL APPEAL NOS.3142 -3143 OF 2022
CIVIL APPEAL NOS.3147 -3149 OF 2022
J U D G M E N T
B.R. GAVAI, J.
1. For the reasons stated in the applications for
impleadment/intervention, the same are allowed.
2
2. This bunch of appeals challenges the order dated 18
th
February 2020, passed by the learned National Green
Tribunal, Principal Bench, New Delhi (hereinafter referred to
as “the learned NGT”) in Original Application Nos.313, 335
and 396 of 2019, thereby quashing and setting aside the
notice dated 1
st March 2019 issued by the State of Uttar
Pradesh for establishing new wood based industries
(hereinafter referred to as “WBIs”) and also setting aside all
the provisional licenses given in pursuance thereof.
3. The appeals also challenge the orders dated 18
th March
2020, 2
nd December 2020, and 21
st December 2020 vide
which the review applications filed by the State of Uttar
Pradesh and the provisional license holders have been
rejected.
4. Civil Appeal Nos.2407-2412 of 2021 are filed by the
State of Uttar Pradesh. The rest of the Civil Appeals are
filed by the provisional license holders, who were granted
licenses in pursuance of the notice dated 1
st March 2019,
issued by the State of Uttar Pradesh.
3
FACTUAL BACKGROUND
5. For the sake of convenience, we will refer to the facts
as found in Civil Appeal Nos. 2407-2412 of 2021 filed by the
State of Uttar Pradesh.
6. There are series of orders passed by this Court and the
Central Empowered Committee (hereinafter referred to as
“CEC”) appointed by this Court, issuing various directions
for prohibiting/regulating the felling of trees as well as the
establishment of WBIs. We will refer to them extensively in
the subsequent paragraphs.
7. In pursuance of the order passed by this Court dated
5
th October 2015 in Writ Petition (Civil) No.202 of 1995 (T.N.
Godavarman Thirumalpad vs. Union of India), the Ministry
of Environment and Forest and Climate Change (“MOEFCC”
for short) issued Wood Based Industries (Establishment and
Regulation) Guidelines 2016 (hereinafter referred to as
“2016 Guidelines”) vide Notification No. S.O. 3456 (E) dated
11
th November 2016.
4
8. Subsequent to the 2016 Guidelines, timber
assessment for Trees Outside Forest (“TOF” for short) in the
State of Uttar Pradesh for WBIs was done for the period
between February 2017 and December 2017 by the Forest
Survey of India (“FSI” for short). The FSI there after
submitted its report, which contains district wise, species
wise and diameter class wise number of stems (trees),
volume and annual potential production of timber from TOF
in rural areas of all the districts of the State.
9. In pursuance of the 2016 Guidelines, the matter was
placed before the State Level Committee (“SLC” for short) for
grant of licenses to various WBIs. The SLC in its meeting
held on 4
th May 2018, considered the matter about the
grant of licenses to various WBIs after taking into
consideration the availability of wood in the State of Uttar
Pradesh for determining the amount of timber available for
new WBIs. In the said meeting, it was also decided that, in
order to determine the correct number of new licenses to be
issued to WBIs under different categories against the timber
5
available in the State, a reassessment may be done by the
Indian Plywood Industries Research and Training Institute
(“IPIRTI” for short).
10. In the meeting of the SLC, held on 7
th September 2018,
since it was found that the capacity of plywood units is
taken as fixed by the 2016 Guidelines, which, in turn, was
based on the assessment of IPIRTI, a decision was taken
that there was no need for the fresh assessment of the
capacity by IPIRTI.
11. In pursuance of the aforesaid decision, E-lottery was
held on 12
th December 2018 for grant of licenses to various
WBIs for the establishment of WBIs in 8 categories.
Between 12
th December 2018 and 31
st December 2018,
online letters of offer were issued to 1348 successful
applicants. Subsequently, in the months of February and
March 2019, provisional licenses were issued to 1215
successful applicants in the 8 categories to set up their
WBIs. Subsequent thereto, on 1
st March 2019, a notice was
6
issued by the Government of Uttar Pradesh communicating
the grant of provisional licenses to the newly selected WBIs.
12. Being aggrieved thereby, Original Application No. 313
of 2019 came to be filed by Uday Education and Welfare
Trust before the learned NGT in March 2019. Vide order
dated 28
th March 2019, the learned NGT directed the State
Government to submit a report from the Joint Committee
comprising of the representative of Principal Secretary
(Forest), U.P. and the Principal Chief Conservator of Forest,
U.P. to examine the issues.
13. Being aggrieved by the notice dated 1
st March 2019
issued by the State Government, Original Application Nos.
335 and 396 of 2019 also came to be filed by Samvit
Foundation and U.P. Timber Association respectively before
the learned NGT.
14. In pursuance of the directions issued by the learned
NGT, the Joint Committee Report came to be submitted on
3
rd August 2019. Vide order dated 6
th August 2019 passed
in Original Application nos. 313, 335 and 396 of 2019, the
7
learned NGT directed the State Government to review the
notice dated 1
st March 2019 with regard to the
establishment of new WBIs by 1350 units strictly in terms
of the judgment of this Court in the case of T.N.
Godavarman vs. Union of India . Vide order dated 1
st
October 2019, the learned NGT directed the status quo to be
maintained.
15. The State of Uttar Pradesh filed an Interlocutory
Application No.732 of 2019 in O.A. Nos. 313, 335 and 396
of 2019, seeking modification of the order dated 6
th August
2019 and the order dated 1
st October 2019. Vide order
dated 18
th December 2019, the learned NGT issued
directions to the State Government to provide certain data.
Subsequently, vide the impugned order dated 18
th February
2020, the learned NGT allowed the said Original
Applications and quashed and set aside the notice dated 1
st
March 2019 issued by the State Government for
establishing new WBIs and all the provisional licenses given.
8
16. Being aggrieved thereby, Civil Appeal (Diary) No.12004
of 2020 was filed before this Court. Vide order dated 26
th
October 2020, this Court dismissed the said appeals as
withdrawn with a liberty to file review application before the
learned NGT. Vide orders dated 18
th March 2020, 2
nd
December 2020, and 21
st December 2020, the learned NGT
rejected the Review Applications.
17. The appellants, therefore, approached this Court being
aggrieved by the orders passed by the learned NGT in the
Original Applications as well as in the Review Petitions.
SUBMISSIONS
18. We have heard Shri Vikas Singh, Shri P.S. Patwalia
and Mr. Rana Mukherjee, learned Senior Counsel appearing
on behalf of the State of Uttar Pradesh, Shri V. Giri, Shri
Syed Waseem Qadri, Shri V.K. Uniyal, Shri Vinay Navare,
Shri V.K. Shukla, learned Senior Counsels, Ms. Prerna
Singh, and Mr. Rudraksh Gupt a, learned counsels
appearing on behalf of the appellants, who were granted
provisional licenses. We have also heard Shri Dhruv Mehta
9
and Shri Brijender Chahar, learned Senior Counsel s
appearing on behalf of the respondent No.1.
19. Shri Vikas Singh, learned Senior Counsel, submitted
that the decision of the State Government to establish WBIs
is in accordance with the 2016 Guidelines issued by the
MOEFCC. He submits that the timber requirement by 1215
new WBIs, which were issued provisional licenses is only
12.35 lakh cubic meters per year, whereas the total timber
available in the State is 80.30 lakh cubic meters per year.
It is, therefore, submitted that, as such, the requirement is
not even 20% of the total availability of timber. Learned
Senior Counsel submitted that the only authorized agency
in the country to conduct a survey of the forest as well as
TOF is FSI. It is submitted that the object of IPIRTI is not to
conduct a survey of either forest or TOF. It is submitted
that, as a matter of fact, the learned NGT itself has directed
such a study to be conducted by FSI, who has already
undertaken similar studies for many States like Punjab,
Maharashtra and others. It is submitted that when the
10
survey with regard to availability of timber in the State of
Uttar Pradesh was done by the very same agency, the
learned NGT fell in gross error in again directing the State
Government to conduct such a survey through the FSI.
20. It is submitted that even the MOEFCC had supported
the stand taken by the State of Uttar Pradesh and,
therefore, the learned NGT ought not to have interfered with
the decision of the State Government.
21. Shri P.S. Patwalia, learned Senior Counsel also
submitted that the decision of the State Government was in
tune with the decision of this Court dated 18
th May 2007
and 5
th October 2015 passed in Writ Petition (Civil) No.202
of 1995 (T.N. Godavarman Thirumu lpad vs. Union of
India). It is submitted that when an expert body like the
FSI had done an elaborate study, there was no reason for
the learned NGT to have sat in appeal over the same. He
further submits that though a detailed affidavit has been
filed on behalf of the State of Uttar Pradesh in compliance
with the order of the learned NGT dated 18
th December
11
2019, regarding the availability of timber, the learned NGT
has totally ignored the same.
22. Shri V. Giri, learned Senior Counsel, submits that the
learned NGT erred in passing orders which have vitally
affected the rights of the citizens who were granted
provisional licenses. He submits that the order impugned is
totally in breach of the principles of natural justice. It is
submitted that, from the perusal of the record, it is clear
that the State of Haryana while calculating its requirement
for wood also takes into consideration the import from the
State of Uttar Pradesh. It is submitted that when there is
excess wood available in the State of Uttar Pradesh, there is
no reason why the same should be permitted to be exported
to the State of Haryana at the cost of entrepreneurs in the
State of Uttar Pradesh.
23. Shri Vinay Navare, learned Senior Counsel, submitted
that the timber used in the WBIs is from the trees which are
agro-based. He submits that though the State of Uttar
Pradesh had adopted an elabo rate procedure right from
12
June 2018 till the grant of licenses, the applicants before
the learned NGT had taken no steps. Shri Navare submits
that only after the provisional licenses were issued and 632
out of 1215 WBIs provisional license holders had already
been established and commenced operations , the
applications were entertained and the orders were passed to
the prejudice of the WBIs. It is submitted that Section 19(1)
of the National Green Tribunal Act, 2010 (hereinafter
referred to as “the NGT Act”) mandates following of the
principles of natural justice. It is submitted that though
the applications for impleadment were made by the WBIs,
the applicants were not granted an opportunity of being
heard.
24. Shri V.K. Uniyal, learned Senior Counsel submitted
that the learned NGT had erred in using the word “allotted”.
It is submitted that there is no question of allotment of
timber to the WBIs and they are required to purchase the
same from the open market.
13
25. Shri V.K. Shukla, learned Senior Counsel submitted
that the State Government decided to grant provisional
licenses for 8 different categories of WBIs. The requirement
of raw material for different categories of WBIs is different.
It is submitted that the learned NGT has grossly erred in
considering all categories of WBIs together and setting aside
the licenses granted to all of them. It is submitted that the
said industries are established in pursuance of the National
Agro Forestry Policy of 2014 and as such the learned NGT
ought not to have interfered.
26. Ms. Prerna Singh, learned counsel appears for the
appellants, who have been granted provisional licenses for
plywood (press only) category. She submits that for plywood
(press only) industries, there is no requirement of
consumption of timber directly. It is submitted that initially
veneer is manufactured out of round/fresh timber. Veneer
then so manufactured is glued and pressed together to
manufacture plywood. It is submitted that the learned NGT
has considered the requirement of timber as twice the
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actual requirement. She submits that in the State of Uttar
Pradesh, veneer is manufactured in surplus, which is
exported to the State of Haryana.
27. Shri Rudraksh Gupta, learned counsel, submits that
the learned NGT has failed to take into consideration the
report of the National Poplar Commission of India.
28. All the learned counsel appearing on behalf of the
appellants, in unison, submit that the original applicants
before the Court were not bonafide litigants. It is submitted
that there are reasons to believe that the proceedings were
initiated at the instance of either the existing WBIs in the
State of Uttar Pradesh to prevent competition or they were
filed at the instance of the WBIs in the State of Haryana who
were importing timber from the State of Uttar Pradesh at
cheaper rates.
29. Shri Dhruv Mehta, learned Senior Counsel appearing
on behalf of the respondent No.1, on the contrary, submits
that this Court has repeatedly held that the principles of
sustainable development, the precautionary principle and
15
the polluter pays principle are to be followed consistently.
He raised a preliminary objection on the ground that in view
of Section 22 of the NGT Act, the scope of an appeal before
this Court could be limited to that of Section 100 of the
Code of Civil Procedure, 1908. It is, therefore, submitted
that unless a substantial question of law is raised, the
appeal could not be tenable.
30. Shri Dhruv Mehta submits that this Court vide order
dated 12
th December 1996 has specifically prohibited the
felling of trees in any forest, public or private. He further
relies on the report of CEC dated 15
th March 2005 to
buttress his submission that WBIs can be permitted only if
they exclusively use timber derived from poplar and
eucalyptus species or agriculture waste products. It is
submitted that the said guidelines also specifically provided
that if the unit is found to have used any timber other than
poplar and eucalyptus whether from a legal source or
otherwise, the license granted to the unit shall be liable to
be cancelled. He further relies on the report of CEC dated
16
12
th October 2006. He submits that an assessment has to
be done on the basis of the district-wise survey about
timber availability from the TOF category. He submits that
the said report of CEC itself would reveal that the
assessment of the State is much less than what was initially
projected by the State Government. He submits that unless
the timber availability for the new WBIs is assessed and the
SLC examines and recommends its approval, it is not
permissible to establish new WBIs.
31. Shri Mehta further submits that the report of CEC
dated 18
th April 2007, accepted by this Court vide its order
dated 18
th May 2007, would show that the availability of
timber for WBIs in the State of Uttar Pradesh is only 45.70
lakh cubic meters per year. Learned Senior Counsel
submits that taking into consideration the fact that
presently many imported machines from China are being
used, the capacity of the existing units has gone much
higher and, therefore, the timber which is available in the
17
State of Uttar Pradesh would not be sufficient to meet the
demand of the existing industries.
32. Shri Mehta submits that when SLC in its meeting
dated 4
th May 2018 had decided to get a report from IPIRTI,
there was no occasion for it to review its decision in its
subsequent meeting dated 7
th September 2018. He submits
that the Senior Officer of the Forest Department of the rank
of Chief Conservator of Forest, Kanpur Division, Kanpur
recommended that the report from IPIRTI should be
obtained before deciding to issue the new licenses. It is
submitted that the letters of the said officer dated 11
th
September 2019 and 20
th April 2018 have been ignored by
the SLC.
33. Shri Dhruv Mehta further submits that Annexure-I to
the 2016 Guidelines is in contravention of the
recommendations of CEC, which takes the requirement of
timber for plywood unit as “NIL”.
34. The learned Senior Counsel submits that vide
Notification dated 20
th July 2012, the State of Uttar Pradesh
18
had notified 7 species of trees in the prohibited category.
However, vide another Notification dated 31
st October 2017,
the said trees were taken out of the prohibited category.
The learned NGT had set aside the said Notification of 2017
by order dated 11
th September 2018. It is submitted that
the said order of the learned NGT has been accepted by the
State of Uttar Pradesh and a fresh notification has been
issued on 7
th January 2020, again bringing the said trees in
the prohibited category. The learned Senior Counsel
submits that while assessing the availability of timber, the
trees under the said prohibited category have also been
taken into consideration. He submits that if 20.75 lakh
cubic meters is deducted from the availability of the timber,
then the timber available in the State would be much less.
35. The learned Senior Counsel further submits that the
survey has not been conducted for all the districts and has
been conducted only for 30 districts and, therefore, the
survey itself is erroneous.
19
36. The learned Senior Counsel further submits that FSI,
while conducting the survey, has not taken into
consideration the rotation period and, therefore, the survey
is erroneous on the said count also. Learned Senior
Counsel, in support of his submissions, relies on the
judgment of this Court in the cases of Common Cause vs.
Union of India and others
1, Mantri Techzone Private
Limited vs. Forword Foundation and others
2, Municipal
Corporation of Greater Mumbai vs. Ankita Sinha and
Others
3 and Pragnesh Shah vs. Dr. Arun Kumar Sharma
and others
4.
37. Shri Dhruv Mehta, relying on the judgment of this
Court in the case of Ankita Sinha and Others (supra) ,
submits that this Court itself has considered the learned
NGT to be a special Tribunal and held that it will even have
jurisdiction to take suo motu cognizance of the
environmental issues. He, therefore, submits that the
1
(2017) 9 SCC 499
2
(2019) 18 SCC 494
3
2021 SCC OnLine SC 897
4
2022 SCC OnLine SC 79
20
arguments made on behalf of the appellants with regard to
locus are without substance.
38. Shri Vikas Singh, learned Senior Counsel, in rejoinder,
submits that the only distinction between the prohibited
trees and non-prohibited trees is that the non-prohibited
trees can be felled without permission, whereas prohibited
trees can be felled only in certain circumstances and only
after the requisite permission is granted. He submits that
the perusal of the FSI survey would reveal that even after
the timber requirement for 1215 new units is taken into
count, the State, still, will have 26.36 lakh cubic meters in
reserve. He submits that if the new WBIs are permitted, it
would result in more farmers going in for agro forestry in
the State, which, in turn, will increase the forest cover. It is
submitted that said 1215 units are likely to give
employment to around 80000 people. Learned Senior
Counsel, therefore, submits that the impugned order s
deserve to be quashed and set aside.
21
EARLIER ORDERS OF THIS COURT
39. For appreciating the rival submissions, it will be
apposite to refer to certain orders passed by this Court.
40. This Court in the case of T.N. Godavarman (supra)
passed an order on 12
th December 1996. The relevant part
thereof is as under:
“6. Each State Government should within
two months, file a report regarding –
(i) the number of saw mills,
veneer and plywood mills
actually operating within the
State, with particulars of their
real ownership;
(ii) the licenced and actual
capacity of these mills for
stock and sawing;
(iii) their proximity to the nearest
forest;
(iv) their source of timber.
7. Each State Government should
constitute within one month, an Expert
Committee to assess:
(i) the sustainable capacity of the
forests of the State qua saw
mills and timber based
industry;
22
(ii) The number of existing saw
mills which can safely be
sustained in the State;
(iii) The optimum distance from
the forest, qua that State, at
which the saw mill should be
located.”
41. Vide subsequent order dated 4
th March 1997
5, this
Court directed thus:
“6. All unlicensed saw mills, veneer
and plywood industries in the State of
Maharashtra and the State of Uttar
Pradesh are to be closed forthwith and
the State Government would not
remove or relax the condition for grant
of permission/licence for the opening
of any such saw mill, veneer and
plywood industry and it shall also not
grant any fresh permission/licence for
this purpose. The Chief Secretary of
the State will ensure strict compliance
of this direction and file a compliance
report within two weeks.”
42. Vide order dated 9
th May 2002, this Court constituted
CEC for monitoring of the implementation of the orders
passed by this Court and for placing non-compliances of the
cases before it.
5
(1997) 3 SCC 312
23
43. Vide order dated 29
th October 2002
6, this Court further
directed thus:
“44. No State or Union Territory shall
permit any unlicensed sawmills,
veneer, plywood industry to operate
and they are directed to close all such
unlicensed unit forthwith. No State
Government or Union Territory will
permit the opening of any sawmills,
veneer or plywood industry without
prior permission of the Central
Empowered Committee. The Chief
Secretary of each State will ensure
strict compliance with this direction.
There shall also be no relaxation of
rules with regard to the grant of
licence without previous concurrence
of the Central Empowered Committee.
45. It shall be open to apply to this
Court for relaxation and or appropriate
modification or orders qua plantations
or grant of licences.”
44. Vide order dated 1
st September 2006, this Court
allowed licenses to be issued to the closed sawmills, Veneer
and Plywood units as per availability of timber and eligibility
and seniority as per CEC recommendation.
6
(2008) 16 SCC 337
24
45. In pursuance of the orders passed by this Court, SLC
was constituted by the State of Uttar Pradesh for verification
and compilation of information about closed WBIs.
46. The FSI conducted its assessment and assessed the
annual availability of wood from TOF in the State of Uttar
Pradesh at 55.61 lakh cubic meters vide report dated 3
rd
April 2007.
47. On the basis of the report of the FSI, the SLC assessed
the annual availability of timber for WBIs from TOF at 53.01
lakh cubic meters. CEC further reduced the same to 43.70
lakh cubic meters. However, it added 2 .00 lakh cubic
meters per year as timber available from government
forests, and, therefore, assessed the annual availability of
timber at 45.70 lakh cubic meters.
48. It is to be seen that in its report itself, the CEC
included 17.77 lakh cubic meters of timber from the
prohibited species. This Court considered the report of
CEC and passed the following order on 18
th May 2007:
“The matters relate to Saw Mills, Plywood
and Veneer Units.
25
The CEC has considered the availability
of wood for the industries, which was
assessed as 43.70 lakh cu. mt from trees
outside forests and 02.00 lakh cu. mt
from Government Forests.
It has also assessed the units into four
categories.
We accept the CEC's recommendations.
The Saw Mills, Plywood and Veneer Units
may be permitted, on the basis of the
recommendations made by the CEC.
Licences may be given by the State Level
Committees.
If there are any objections regarding
grant of Iicences, the parties would be at
liberty to submit their applications
before the CEC for consideration.”
49. It could thus be seen that in 2007 itself, this Court
had accepted the recommendations of the CEC wherein the
CEC had computed the total availability of timber and had
also taken into consideration the availability of timber from
the prohibited category.
50. Vide order dated 29
th February 2008, this court
considered the issue regarding the manufacturing of
Medium Density Fiber board (MDF) and Particle board in
26
the States of Punjab, Uttarakhand and Karnataka. While
considering the same, this Court passed the following order:
“The matter relates to the manufacturing
of Medium Density Fiber board (MDF)
and Particle Board in the States of
Punjab, Uttarakhand and Karnataka.
CEC has filed its report and stated that
there is a growing trend to use more and
more MDF / Particle Board in place of
industrial timber. The MDF/Particle
Board help in reducing the pressure on
natural forests. The lops and tops and
small wood available from the
plantations of eucalyptus, poplar, etc.
raised on the non-forest can be used by
MDF/Particle Board plants.”
51. In view of the permissions granted by this Court, the
licenses were granted to the unlicensed sawmills which were
closed on account of the orders passed by this Court taking
into consideration the availability of timber between 2007
and 2010. However, it is to be noted that the said licenses
were granted only to the units which were closed and not to
the new units.
27
52. The matter again came up for consideration before this
Court on 30
th April 2010, when this Court passed the
following order:
“(II) after meeting the requirement of the
licensed wood based industry, the units
permitted by this Hon'ble Court and the
units whose category is yet to be
finalised, the plywood/veneer units
falling in category IV may be considered
for grant of license to the extent of
timber availability and strictly in the
order of seniority, subject to the one-time
payment of Rs.9 lakhs per press in
respect of the veneer units and
compliance of the other conditions that
have been stipulated. The one -time
payment of penalty will be in addition to
the normal licence fee and the other
charges, if any, payable to the U.P.
Forest Department. As decided earlier,
the above said amount should be kept in
a designated interest bearing bank
account and should be utilized only after
the scheme in this regard is approved by
this Hon'ble Court;”
53. It could thus be seen that this Court permitted
granting of additional licenses if additional timber was
found to be available.
54. The CEC in its meeting held on 26
th May 2010 with the
SLC and representatives of WBIs Associations in the State of
28
Uttar Pradesh, after taking into consideration the capacity
of timber for Vertical Band Saw (VBS) sawmill,
modified/reduced the value of capacity of timber for VBS
sawmills upto 10 Horse Power from 540 to 270 cubic meters
per year for the State of Uttar Pradesh in line with other
States. As such, additional 9,58,230 cubic meters of timber
became available for licenses from 3,549 such VBS units.
In view of this position between 2010 and 2015, licenses
came to be issued by the State of U ttar Pradesh to
unlicensed WBIs, which were closed earlier by the order of
this Court, as per the criteria recommended by the CEC and
accepted by this Court.
55. The matter again came up for consideration before
this Court on 5
th October 2015 with regard to WBIs, when
this Court passed the following order:
“CATEGORY I - MATTERS RELATING
TO WOOD BASED INDUSTRIES:
We have heard Shri Harish Salve,
learned amicus curiae, Shri Ranjit
Kumar, learned Solicitor General of
India, Shri K.K. Venu gopal, learned
senior counsel and other learned senior
29
counsel/counsels. Accordingly, we pass
the following orders:
(i) The State Level Committees
for Wood-Based Industries ("SLCs") are,
subject to the compli ance of the
prescribed guidelines and procedure,
authorized to take decisions regarding
the grant of license/permission to the
wood-based industries;
(ii) In each State/UT for which
the SLC has so far not been constituted,
the SLC under the Chairmanship of the
Principal Chief Conservator of Forests
with a representative of the Ministry of
Environment and Forest and Climate
Change ("MoEFCC") and an officer of the
State Forest Department/Industries
Department not below the rank of the
Chief Conservator of Forests/ equivalent
rank will immediately be constituted;
(iii) The MoEF is authorized to
issue appropriate guidelines in
conformation with the orders and
directions issued by this Court and also
the existing guidelines to the SLCs
relating to assessment of timber
availability for wood-based industries
and grant of license/permission to the
wood-based industries including
addition of new machineries and also
utilization of amounts recovered from the
wood-based industries and connected
matters;
30
(iv) Any person aggrieved by the
decision taken by the SLC may file an
appeal before the MoEFCC seeking
appropriate relief within 60 days’ time. If,
for any reason, any person is aggrieved
by the orders so passed in the appeal, he
may prefer an appropriate
petition/application/appeal before the
appropriate forum/Court for grant of
appropriate relief(s).
We also permit the MoEFCC to
condone the delay, if any, in filing an
appeal, if sufficient cause is made out by
the applicant(s)/appellant(s)”
56. It is thus seen that vide the said order, SLCs were
authorized to take decisions regarding the grant of
license/permission to the WBIs. Vide the said order, it was
also directed to constitute SLC under the Chairmanship of
the Principal Chief Conservator of Forest with a
representative of MOEFCC and an officer of the State Forest
Department/Industries Department not below the rank of
the Chief Conservator of Forests/equivalent rank. This
Court further directed the SLCs to be constituted in each
State/Union Territory for which the SLC was not yet
constituted. The MOEF was also authorized to issue
31
appropriate guidelines in conformity with the orders and
directions issued by this Court and also the existing
guidelines to the SLCs relating to the assessment of timber
availability for WBIs. Appeals could be filed before MOEFCC
against the decision of the SLC.
MOEFCC GUIDELINES
57. In accordance with the directions issued by this Court
vide order dated 5
th October 2015, the MOEFCC issued
2016 Guidelines on 11
th November 2016. The 2016
Guidelines provided for the constitution of the SLC as well
as the powers and functions of SLC. Under clause 4 of the
2016 Guidelines, the SLC was authorised to assess the
availability of timber for wood based industrial units in the
State/UT every five years. The SLC was also authorised to
approve appropriate locations for setting up of wood based
industrial units. It was also authorized to approve the
name of wood based industrial units which may be
32
considered for grant of fresh license or enhancement of the
existing licensed capacity.
58. Clause 5 of the 2016 Guidelines provides for the
assessment of the availability of timber for wood based
industrial units. It requires that the quantity of timber
would be assessed by commissioning the study, preferably
in collaboration with institutes/universities of repute, once
in five years. Under clause 6 of the 2016 Guidelines, the
timber requirement for various units as assessed by IPIRTI
was given in Annexure I. The said Annexure I reads thus:
“The Indian Plywood Industry Research
and Training Institute (IPlRTI), Bangalore
an autonomous body under the Ministry
of Environment, Forest and Climate
Change has assessed the timber
requirement per unit for peeling length of
4 feet and 8 feet size in th e
plywood/veneer units as 5 cu.mt and 11
cu.mt. respectively per day on an
average of 8 working hours per day. By
assuming that the peeling units work for
8 hours per day on an average for 300
days in a year the normal timber
requirement of the peeling length of 4
feet size in veneer units is 1500 cu.mt.
The total timber requirement for the
33
stand alone veneer units may be
assessed by calculating the equivalent
number of 4 feet length machines and by
taking its normal installed capacity as
1500 cu.mt. per annum.
The timber requirement of a
plywood unit may be taken as 'nil' on the
ground that the round timber is used as
timber in the veneer units only and that
the plywood units are the secondary
users which use the veneer as the raw
material produced by the veneer units.
The plywood units use presses of various
sizes such as 8x4x6, 8x4xl2, 8x4xl5,
4x4x7, 4x4x10. A 8x4xl0 capacity press
can produce upto 10 plywood pieces of
8'x4' size per hour whereas a 8x4xl5
capacity press can produce up to 15
plywood pieces of 8'x4' size per hour and
so on. The normative installed capacity
of the plywood units will accordingly
depend upon the number and the type of
presses. This number and type of
presses installed in each of the plywood
unit may be assessed and thereafter
equivalent number or presses of 8x4x10
capacity may be calculated. The
normative annual timber requirement for
a integrated plywood unit having a
8x4x10 capacity press may be taken as
2000 cu.mt. per annum, and accordingly
the total requirement of timber for the
plywood units should be calculated.”
34
59. It could thus be seen that even as per the assessment
of the IPIRTI, the timber requirement of a plywood unit is
required to be taken as ‘NIL’ on the ground that the round
timber is used as timber in the veneer units only and that
the plywood units are the secondary users which use the
veneer as raw material. It could thus be seen that the
plywood units use presses of various sizes.
60. In pursuance of the 2016 Guidelines, the SLC was
reconstituted in the State of Uttar Pradesh under the
Chairmanship of Principal Chief Conservator of Forest/Head
of Forest Department on 17
th May 2017. Vide Notification
dated 11
th September 2017, the MOEFCC amended the
2016 Guidelines.
61. Subsequently, in accordance with the 2016 Guidelines,
the SLC assessed the availability of timber for WBIs in the
State of Uttar Pradesh, through the FSI. For assessing the
availability of timber, the FSI conducted a survey and
arrived at the annual potential production of timber from
TOF in rural areas of all the districts of the State. FSI
35
assessed the annual potential production from TOF at 77.74
lakh cubic meters. Subsequent to the survey and
assessment, the SLC in its meeting dated 4
th May 2018
considered the matter for grant of license to various WBIs.
The SLC decided to get the reassessment done by IPIRTI to
determine the correct number of new licenses to be issued
to WBIs under different categories against the available
timber. However, subsequently, the SLC, in its meeting
dated 7
th September 2018, found that IPIRTI had not done
any new study/assessment of the consumption of timber by
various WBIs in any State/Union Territory. It was also
found that the State of Haryana had adopted the timber
consumption figures based on the CEC figures of 2007. It
was therefore unanimously resolved by the SLC that there
was no need for any fresh study/assessment for the
consumption of timber by WBIs to be conducted by IPIRTI
and to adopt the figures for WBIs as were referred to in the
2016 Guidelines. It further found that the CEC in its
meeting dated 26
th May 2010 had reduced the annual
36
consumption of timber of sawmills upto 10 Horse Power or
less HP to 270 cubic meters from 540 cubic meters.
62. On the basis of the decision of the SLC, e-lottery was
held. After following the procedure, provisional licenses
were issued to 1215 successful applicants in 8 categories of
WBIs in February and March 2019. After the issuance of
provisional licenses, on 1
st March 2019, the State
Government issued a Notice with regard to grant of
provisional licenses to the newly selected WBIs which came
to be challenged before the learned NGT by way of filing the
aforesaid Original Applications by the respondents. The
learned NGT after passing various interlocutory directions
finally passed the impugned order and quashed and set
aside the notice dated 1
st March 2019 issued by the State
Government and provisional licenses given in pursuance
thereof. As such we are required to examine the correctness
of the decision of the learned NGT.
CONSIDERATIONS
37
63. The learned NGT while passing the impugned order
has set aside the notice of the State of Uttar Pradesh on the
following grounds:
(1) that the WBIs can be allowed to operate only after
ensuring timber and raw material availability to
sustain such industries and this has to be
determined in actual terms and not on mere
assumptions;
(2) that it is difficult to accept the stand of the State
of Uttar Pradesh that there was availability of
timber/raw material to sustain the new WBIs;
(3) that it is the stand of the State of Uttar Pradesh
that the total potential availability of timber per
year in the State of Uttar Pradesh is 80.30 lakh
cubic meters, which includes 2.56 lakh cubic
meters from the Government forests and 77.74
lakh cubic meters from TOF. Out of 80.30 lakh
cubic meters, 71.8 lakh cubic meters were stated
to be available from 22 species and 8.50 lakh
38
cubic meters from the other species. Out of 22
species, there are 10 species that are prohibited
from felling and as such, 20.75 lakh cubic meters
from these 10 species are liable to be excluded;
(4) that the major contribution is from Eucalyptus
(28 lakh cubic meters) and Poplar species (15
lakh cubic meters), a total of which is 43 lakh
cubic meters. Thus, the figure is not actual but
presumptive;
(5) that the standard error percentage adopted by the
FSI is not correct and is much higher;
(6) that the total availability of timber for
consumption including that from the government
forests would not be more than 40-45 lakh cubic
meters per year;
(7) that the potential availability of 77.74 lakh cubic
meters from TOF as given in the affidavit has
been overestimated.
39
64. It is to be noted that after this Court allowed the
licenses to be issued to the closed sawmills vide order dated
1
st September 2006, the SLCs were constituted. The
permissions were to be granted on the recommendations of
the CEC. Vide order dated 18
th May 2007, this Court had
also accepted the recommendation of the CEC. Vide
another order dated 30
th April 2010, this Court permitted
additional licenses to be granted if additional timber was
available. Accordingly, licenses were granted between 2010
and 2015. Vide subsequent order dated 5
th October 2015,
this Court allowed the grant of license/permission to
unlicensed WBIs in the country. This Court had directed
the reconstitution of the SLCs for WBIs. In pursuance of
the directions issued by this Court, the 2016 Guidelines
were issued by the MOEFCC. As per the 2016 Guidelines,
the SLC was reconstituted in the State of Uttar Pradesh on
17
th May 2017.
65. One of the duties which was cast upon the SLC was to
assess the availability of timber for wood based industrial
40
units in the State. The SLC was to assess the availability of
timber by commissioning studies, preferably in
collaboration with institutes/universities of repute, once in
five years. In accordance with the 2016 Guidelines, the FSI
conducted the survey and submitted its report in March
2018. It will be relevant to refer to the relevant part of the
Foreword of the said report of the FSI.
“In the recent past, a number of
requests were received for establishment
of wood based industries in the state for
which the raw material would come from
outside the forest areas. Since accurate
assessment of TOF is needed for effective
planning & management, Uttar Pradesh
Forest Department requested FSI to
make Agro -Climatic zone wise
assessment on the basis of inventory
already done during its regular course of
inventory conducted in the State. As per
the final report, the total stems as
estimated from the study is 299.43
million with a volume of 79.40 m. cum.
The total yield in the Uttar Pradesh is
estimated 7.8 million cum.
The report gives an assessment of
the growing stock existing outside state
forest reserves. The report has also
indicated district-wise, species-wise and
girth class-wise number of stems and
41
volume in each Agro-Climatic Zone wise
of inventoried districts. I am confident
that this report would provide useful
data for arriving at informed policy and
programme interventions to give a fillip
to forestry sector in the state besides
providing benchmark data for tree crop
in non-forest area.”
66. After conducting the survey, the FSI has come to a
finding that the State of Uttar Pradesh had an annual
potential production of 77,74,521 cubic meters of timber.
For conducting the survey, the FSI acquired satellite data
for the inventoried districts of Uttar Pradesh State from
National Remote Sensing Centre, Hyderabad. The entire
gambit of scientific methodology was applied. The data
processing was carried out independently for all the
inventoried districts of Uttar Pradesh. It will be relevant to
refer to the following part of the report of the FSI:
“The data processing was carried out
independently for all the inventoried
districts of Uttar Pradesh. Estimates of
stems per ha and volume per ha were
generated according to species and
diameter class for block, linear and
scattered stratum under each district.
42
Estimated stems and their volumes were
generated according to species and
diameter class by aggregating stem per
hectare and volume per hectare over the
entire Rural CNF Area of each stratum
for each district by combining the
estimated stems and volumes under
block, linear and scattered stratum. By
aggregating the estimates of stems and
volume of all the three strata, the
estimates of stems and volumes
according to species and diameter class
has been prepared for Rural area
separately.”
67. The FSI had also divided the State of Uttar Pradesh
into 9 Agro-climatic zones to generate the estimate of
growing stock and annual potential production. District-
wise production was estimated before concluding that
77,74,521 cubic meters of timber was the annual potential
production. The contention of the respondents that the
rotation method was not applied is totally incorrect. It will
be relevant to refer to paragraph 5.4 of the said report,
which reads thus:
“5.4 Estimates of Annual Potential
Production of Wood from TOF (Rural)
43
Yield of a forest depends on several
factors such as its structure, growth,
density, productive capacity of site etc.
The estimate of yield been generated for
rural area using growing stock
estimates. The Uttar Pradesh Forest
Department was supplied the complete
list of tree species which were found in
the survey. The Uttar Pradesh Forest
Department was asked to indicate tree
species being used as 'timber' and 'non
timber' and rotation period of specified
timber species. The Uttar Pradesh
Forest Department informed that they
do not have rotation period of all
species and requested Forest Survey
of India to use their rotation period
used for estimation of annual
potential production of wood. The
species are arranged into two groups;
one containing the species having timber
values and another containing rest by
agro-climatic zone wise. The yield has
been calculated using Von Mentel
formula as given below:
Yield= 2GS/R
Where GS: Growing Stock
R: rotation period
Using the information of timber
value, growing stock and rotation period
in the above mentioned formulae species
wise yield were calculated. The Agro-
Climatic Zone wise yield has been given
in Annexure-11.”
44
[emphasis supplied]
68. The standard error was also determined by applying
the appropriate scientific method.
69. The FSI, hence, considered various aspects before
concluding and submitting its 101 page report.
70. It could thus be seen that the estimation as arrived at
by the FSI was by applying a proper and adequate scientific
method.
71. However, it is surprising that the learned NGT has
brushed aside such a scientific exercise by merely observing
that the figures arrived at were by estimation and not
realistic.
72. The FSI has published a paper on “Trees Outside
Forest Resources in India”. The contributors to the said
paper are (1) Dr. Subhash Ashutosh, DG, FSI; (2) Prakash
Lakhchaura, DDG, FI, (3) Kamal Pandey, DD, FI; (4) Dr.
Sourav Ghose, Proj. Scientist D; (5) Sushila Tripathi; and (6)
H.K. Tripathi. The paper shows that the timber and panel
products of TOF origin have emerged as the major
45
alternative to timber from forests and thus TOF have
significantly obviated pressure from forests. The report
shows that, the extent of TOF in the country has been
assessed at 29.38 m hectare, which is around 8.94% of the
total geographical area of the country. The report further
shows that based on the recommendations of the National
Commission on Agriculture (NCA, 1976), the Government of
India launched a social forestry program in the late
seventies on a large scale. The paper further shows that,
these days satellite data in a wide range of spectral, spatial,
radiometric and temporal resolutions are available from
various Remote Sensing Agencies of several countries. It
further shows that there has been a rapid advancement in
the development of digital image processing software. It,
therefore, observes that the desired mapping of natural
resources with reasonable accuracy is possible. The report
refers to the methodology of assessment of TOF in different
countries of the world and refers to various authorities. It
refers to different types of methodologies used for different
46
periods; the first one being from 1991 to 2001; the second
period being from 2001 to 2016; and the third period being
from 2016 onwards. The report shows that the State of
Maharashtra has the highest potential annual yield of
timber in India followed by the States of Uttar Pradesh and
Karnataka.
73. It will be relevant to refer to the conclusion of the said
paper, which is as follows:
“5. Conclusion
TOF play a significant role in the socio-
economic lives of people both in rural
and urban areas of the country by
enriching the people and society at large
economically as well as ecologically. The
management of TOF assumes high
significance in the country for realizing
much higher potential which it offers in
generating wood based economy and
ecosystem services including carbon
sequestration. Periodic assessment of
TOF resources including its spatial
distribution is prerequisite for its
scientific management in the country.
FSI is mandated with this task however
there is need for continuous
improvement in the methodology and
inclusion of more number of variables in
the assessment. The organization will
have to be further strengthened
47
particularly in terms of man power, to
address the emerging information needs
on TOF. There has been regular
refinement in methodologies in the last
three decades to quantify TOF resources
using various statistical designs and
estimates with better precision. The
advancement of technologies in the field
of remote sensing, satellite image
processing and availability of high
resolution satellite data made the
methodology much precise and easier.
The progression of science may further
refine the existing method of T OF
assessment in near future.
TOF also act as an important source for
timber and fuel wood to meet the
demands of fast growing population of
the country. There is a need to put focus
on increasing the growing stock per
hectare or yield of TOF by better
management and planning. There is also
a need for a separate policy on TOF to
ensure its expansion and sustainable
management for multiple eco logical
benefits, timber production, carbon
sequestration and for obviating pressure
from the natural forests.
Occupying nearly 9% of the geographical
area of the country, TOF are significant
natural, renewable resource which make
vital contribution to the agro-ecology,
socio-economy of the rural areas,
environmental amelioration in the urban
areas and feed wood based industries
with the raw material and thus generate
significant employment. TOF form a
48
nearly 38% of the carbon sink in forest &
tree cover of the country. TOF offers the
path for achieving the national policy
goal of 33% of forest & tree cover in the
country. Through expansion of TOF,
particularly in agro-forestry and on
culturable waste lands, India can
substantially increase its carbon sink to
achieve its international commitments of
NDC and LDN by 2030.”
74. It could thus be seen that the FSI has also emphasized
the need of promoting TOF. It has been observed that TOF
are significant natural, renewable resources which make
vital contributions to the agro-ecology, socio-economy of the
rural area, and environmental amelioration in the urban
area and feed WBIs with raw material and thus generate
significant employment.
75. It is our considered view that, when the estimation was
done by the FSI by applying the scientific method and had
arrived at the conclusion based on satellite data, such a
report could not have been brushed aside by the learned
NGT lightly.
76. Insofar as the finding of the learned NGT that the
survey also takes into consideration the prohibited trees,
49
the felling of which is not permissible, it will be relevant to
note that the Notification dated 7
th January 2020 issued by
the Government of Uttar Pradesh provides that the
prohibited trees shall not be felled till 31
st December 2025
except under unavoidable circumstances, such as when a
tree is dead or dying or it constitutes a danger to persons or
property, or its felling is necessary for executing
development work approved by the Government , or if the
fruit bearing capacity of s uch tree has decline d
substantially. Such trees cannot be felled unless
permission to fell such tree has been obtained in writing
from the competent authority. The tree owners are also
required to maintain 10 trees in place of each tree felled. It
is thus clear that there is no absolute prohibition for felling
the trees which are in the prohibited category. However, the
same can be done only in exceptional circumstances.
77. It is to be noted that the prohibited trees also include
trees like Mango, Jamun, etc. which are fruit bearing trees.
After a particular number of years, the fruit bearing
50
capacity of such trees drastically reduces and as such, the
farmers normally fell such trees and go in for replantation of
the orchard. Apart from that, it is to be noted that the CEC
itself approved the availability of timber for the State of
Uttar Pradesh in its report dated 19
th April 2007, which
included 17.77 lakh cubic meters of prohibited trees. The
said report of the CEC was approved by this Court vide its
order dated 18
th May 2007.
78. It is further to be noted that in pursuance of the order
of the learned NGT dated 28
th March 2019, a Committee of
Experts [Joint Committee comprising of representative of
Principal Secretary (Forest), U.P. and Principal Chief
Conservator of Forest, U.P.] had submitted its report on 3
rd
August 2019. Not only this , but in pursuance of the
directions issued by the learned NGT on 18
th December
2019, another detailed affidavit was filed on behalf of the
State Government on 21
st January 2020, giving therein the
details about the availability of timber. It was specifically
stated in the said affidavit that eucalyptus and poplar are
51
the main species of TOF and 80% of the wood is derived
therefrom. It was further pointed out that the farmers in
the State of Uttar Pradesh were not getting remunerative
prices and are forced to sell their produce at a very cheap
rate mainly to middlemen. It was also pointed out that
there would be an expected investment of about Rs.3000
crore in the State with the establishment of new WBIs. The
same would employ more than 80000 people, mostly in the
rural areas of the State. However, all these factors have
been ignored by the learned NGT.
79. As such, the learned NGT has grossly erred in
deducting the availability of timber from the prohibited
trees. By now, it is more than settled that the Courts
should not enter into an area that is the domain of the
experts. FSI, which is undisputedly an expert body, had
arrived at its estimation based on the scientific method.
The learned NGT could not have sat in appeal over the
opinion of the expert.
52
80. It is relevant to note that MOEFCC, in pursuance of
the directions issued by the learned NGT had filed its
opinion on 18
th December 2019. It will be relevant to refer
to paragraph 8 of the said opinion.
“8. That based on the examination of
available documents in light o f the
provisions of the Wood Based Industries
(Establishment and Regulation) Rules,
2016, MoEFCC is of the opinion that the
State of U.P. has followed the Wood
Based Industries (Establishment and
Regulation) Guidelines, 2016 (as
amended in 2017) issued by MoEFCC.
The availability of wood in the State has
also been assessed by the SLC through
FSI. The Ministry is, therefore, of the
view that the SLC may approve setting
up of new industries in the State if it is
satisfied that sufficient timber is
available legally to run the new wood
based industries.”
81. The learned NGT has failed to take into consideration
the stand of the MOEFCC, which also supported the stand
of the State that sufficient timber was available legally to
run the new WBIs.
53
82. Insofar as the contention of the learned counsel for the
respondents that, though in the meeting of the SLC dated
4
th May 2018, it was decided to get the assessment done by
IPIRTI, the SLC in its meeting dated 7
th September 2018 did
a volte-face and decided not to get the assessment done
from IPIRTI, the perusal of the minutes of the meeting of the
SLC dated 7
th September 2018 would reveal that it was
found that the IPIRTI had not done any new
study/assessment of the consumption of timber by various
WBIs in any State/Union Territory. It was noticed that, as
per the report of the FSI, the TOF available was 77,74,522
cubic meters. Adding the timber available in the forest area
of 2,57,273 cubic meters, the total quantity of availability of
timber was 80,31,795 cubic meters. It is to be noted that
the SLC had taken note of the letter dated 29
th August 2018
issued by the Director, IPIRTI, where he had communicated
that no assessment pertaining to the annual consumption
of timber by Veneer and Plywood Industries was undertaken
by the IPIRTI during the last two years in any State of the
54
country. It was found that the 2016 Guidelines itself
provided for annual consumption of timber based on the
report of IPIRTI. In this premise, it was found that there
was no need to conduct a fresh study/assessment for the
consumption of timber by WBIs by IPIRTI. It was decided to
accept the figures as provided in the 2016 Guidelines.
83. It can thus be seen that the decision of the SLC for not
getting the assessment done by the IPIRTI is based on
sound reasons. When the 2016 Guidelines itself provided
for the consumption of timber by WBIs based on the report
of the IPIRTI, there was no purpose to again get the
assessment done by IPIRTI. The scope of judicial review has
been succinctly explained by this court in the case of Tata
Cellular vs. Union of India
7, which has been consistently
followed in a catena of cases. This Court, in the said case,
observed thus:
“77. The duty of the court is to confine
itself to the question of legality. Its
concern should be:
7
(1994) 6 SCC 651
55
1. Whether a decision -making
authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of
natural justice,
4. reached a decision which no
reasonable tribunal would have
reached or,
5. abused its powers.
Therefore, it is not for the court to
determine whether a particular policy or
particular decision taken in the
fulfilment of that policy is fair. It is only
concerned with the manner in which
those decisions have been taken. The
extent of the duty to act fairly will vary
from case to case. Sh ortly put, the
grounds upon which an administrative
action is subject to control by judicial
review can be classified as under:
(i) Illegality : This means the decision-
maker must understand correctly
the law that regulates his decision-
making power and must give effect
to it.
(ii) Irrationality, namely, Wednesbury
unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds
but it does not rule out addition of
further grounds in course of time. As a
matter of fact, in R. v. Secretary of State
for the Home Department, ex
Brind [(1991) 1 AC 696] , Lord Diplock
refers specifically to one development,
namely, the possible recognition of the
principle of proportionality. In all these
56
cases the test to be adopted is that the
court should, “consider whether
something has gone wrong of a nature
and degree which requires its
intervention”.”
84. Applying the aforesaid principle to the present case, it
cannot be said that the decision-making process has been
vitiated either on account of illegality, irrationality or
procedural impropriety.
85. With regard to the contention of Shri Dhruv Mehta,
learned Senior Counsel, that Annexure I to the 2016
Guidelines providing the timber requirement of a plywood
unit to be taken as “NIL” is contrary to the CEC
recommendations is concerned, we do not find any
substance in the said submission. Firstly, 2016 Guidelines
have been issued by the MOEFCC in pursuance of the
directions issued by this Court dated 5
th October 2015. In
any case, the raw material for plywood industries is ‘Veneer’
and the raw material for veneer is ‘timber’. We find
substance in the contention of the appellants that, if timber
is to be considered again as a raw material for plywood,
57
then it will amount to showing the consumption of the same
timber more than once, which is, in fact, not consumed. It
is not in dispute that veneer is a raw material for plywood,
which is derived from timber. The same timber is used for
deriving veneer and such veneer, which is used for
manufacturing plywood, cannot be counted twice. In any
case, as long as the 2016 Guidelines which are issued in
pursuance of the directions issued by this Court are not set
aside, the contention in that regard is without substance.
86. That leads us to consider the contention of the
respondents that this Court has repeatedly emphasized the
principles of sustainable development, the precautionary
principle and the polluter pays principle. No doubt that the
protection of the environment is of utmost importance. It is
the duty of this generation to protect the environment for
future generations.
CONCLUSION
87. It cannot be disputed that Section 20 of the NGT Act
itself directs the learned Tribunal to apply the principles of
58
sustainable development, the precautionary principle and
the polluter pays principle. Undisputedly, it is the duty of
the State as well as its citizens to safeguard the forest of the
country. The resources of the present are to be preserved
for the future generations. However, one principle cannot
be applied in isolation of the other.
88. It is necessary that, while protecting the environment,
the need for sustainable development has also to be taken
into consideration and a proper balance between the two
has to be struck.
89. A body having expertise in the field, i.e. the FSI, upon
a scientific study, has concluded that there is sufficient
timber available in the State of Uttar Pradesh. Not only
that, but the respondents themselves have placed on record
a project report on “Study to know the percentage and value
of the raw material sourced through U.P. Forests by
Plywood and Khair (Kattha) Industries in U.P.”. The said
report is prepared by RAK Management Consultants on the
instructions of the Department of Planning, Economic and
59
Statistics Division, Government of Uttar Pradesh. The said
report itself shows that the consultants, during the field
survey, observed resentment among the plywood
manufacturers against the process of issuing new licenses
to the WBIs by the State Government.
90. The report further goes on to show that on average
1500-1700 trucks/tractor trollies of the eucalyptus and
popular wood from all over Haryana, Punjab, Himacha l
Pradesh and Uttar Pradesh go to Yamuna Nagar, Haryana
daily. Out of the said trucks/trollies, approximately 300-
350 tractor trollies and some other small vehicles per day
come from Uttar Pradesh . The report shows that
approximately 5 to 6 lakh metric tons of timber per year is
exported to Yamuna Nagar. The said material belongs to
the western districts of Uttar Pradesh, i.e. Muzaffarnagar,
Saharanpur, Shamli, Baghpat and Meerut. It is stated that
there is no sufficient market for this produce in the said
area. The report further finds that the western districts of
Uttar Pradesh, i.e. Meerut, Muzaffarnagar, Saharanpur,
60
Baghpat and Shamli, etc. do not have sufficient number of
plywood and veneer units and as such , they are not
sufficient for the entire farmers’ produce available in the
said area. The report itself shows that the western districts
need around 80-85 plywood and veneer units. The report
goes on further to show that there is dissatisfaction among
the already existing industrialists about the assessment
made by the FSI.
91. It is further to be noted that the State has specifically
pointed out before the learned NGT that on the
establishment of WBIs, an investment of about Rs.3000
crore was likely to be attracted in the State; employment
opportunities to over 80000 people will be available and the
farmers of the State would get a more remunerative price.
This would result in more impetus for large-scale plantation
and agro-forestry. The State also emphasized that this will
reduce dependence on traditional/cash crops and also
reduce migration of people to urban area s. It is also
emphasized that if the new WBIs are permitted, it wi ll
61
reduce the import of WBIs produce. However, all these
aspects have not been taken into consideration by the
learned NGT.
92. It will be relevant to note that the Forest Research
Institute, Dehradun, Uttarakhand has published ‘Country
Report of Poplars and Willows Period : 2012-2015’. The
report states that the timber from poplar and willow is the
backbone of vibrant plywood, board, match, paper and
sports goods industries. The report further states that in
tune with Indian Agroforestry Policy 2014, the plantation of
poplar has been promoted. It further states that the
Planning Commission of India has given special grants to
certain States for the diversification of agriculture where
farmers are advised to move away from paddy cultivation to
sustain agricultural production. Poplar and eucalyptus are
among the few trees promoted under this diversification
plan. The report states that Poplar plays a significant role
in rural development by generating employment for many
categories of skilled, semi-skilled and unskilled workers.
62
93. The paper on “Trees Outside Forest Resources in
India” published by the FSI, cited supra, also emphasizes
that TOF are significant natural, renewable resources which
make vital contributions to the agro-ecology, socio-economic
improvement of the rural areas, environmental amelioration
in the urban areas and feed WBIs with raw material and
thus generate significant employment. TOF form nearly
38% of the carbon sink in the forest and tree cover of the
country. It states that TOF offers the path for achieving the
national policy goal of 33% of forest and tree cover in the
country. It states that through the expansion of TOF,
particularly in agro-forestry and on culturable waste lands,
India can substantially increase its carbon sink to achieve
its international commitments of NDC and LDN by 2030.
94. As already discussed herein above, the majority of TOF
is from two species, i.e. Poplar and Eucalyptus. These trees
are fast growing. If a market is available for the said trees,
there will be impetus to the farmers for large scale
plantations. The rotation in these species is quite fast. This
63
will, in turn, increase the green coverage. We are of the
considered view that the learned NGT has taken a lopsided
view. It has failed to take into consideration the concerns
expressed by the State. The learned NGT has committed
patent error in ignoring the expert’s report and sitting in
appeal over the same. The learned NGT has also failed to
take into consideration the stand taken by the MOEFCC,
which supported the stand of the State. As already
discussed herein above, the State had emphasized many
advantages of granting new licenses to WBIs. It was also
emphasized that the timber from the State of Uttar Pradesh
was being exported to the State of Haryana. However, none
of these aspects have been considered by the learned NGT.
We are, therefore, of the considered view that the impugned
orders of the learned NGT are not sustainable in law.
95. There is another reason, in our view, why the order of
the learned NGT would not be sustainable. Though, on the
date on which the review applications were rejected, 1215
provisional licenses were already granted and 633 units had
64
already been established and commenced production, the
learned NGT has passed the impugned order which
adversely affects their interest. Either some of such
industries ought to have been impleaded in their
representative capacity or a public notice should have been
given so that such license holders could have represented
their case. However, the said contention is lightly brushed
aside by the learned NGT by holding that, since the issue is
related to the general decision of the State which is
applicable uniformly to all the proposed provisio nal
licensees, it is not necessary to consider the issue raised in
the impleadment applications. It is more than a settled law
that the principles of natural justice are required to be
followed even in administrative actions when such actions
adversely affect the rights of the citizens. When the learned
NGT exercised its judicial powers, it could not have ignored
the principles of natural justice, which, even under Section
19(1) of the NGT Act, it is bound to follow.
65
96. Another aspect that needs consideration is that a
serious issue was raised before the learned NGT by the
appellants herein with regard to the credentials and
bonafides of the original applicants.
97. When the matter was heard by us, we too made
pertinent queries to Shri Mehta and Shri Chahar with
regard to the credentials of the applicants before the learned
NGT. One applicant is Uday Education and Welfare Trust;
the second applicant is Samvit Foundation and the third
applicant is U.P. Timber Association. Undisputedly, the
U.P. Timber Association was a litigant interested in the
litigation. However, insofar as the other original applicants,
i.e. Uday Education and Welfare Trust and Samvit
Foundation, for whom Shri Dhruv Mehta and Shri Brijender
Chahar, learned Senior Counsel are appearing, specific
queries with regard to the activities undertaken by the said
original applicants were made as to whether they were
involved in any activity with regard to the protection of the
environment; had they at least been engaged in promoting
66
plantation; what were the aims and objectives of the said
original applicants; and what are the sources of funding,
etc. Shri Mehta and Shri Chahar, learned Senior counsel,
fairly submitted that apart from the fact that they (original
applicants) had previously filed some public interest
litigations wherein orders were passed in their favour, they
had no other information.
98. Shri Dhruv Mehta, learned Senior Counsel has rightly
relied on the judgment of this Court in the case of Ankita
Sinha and Others (supra) to submit that the learned NGT
is empowered to take suo motu cognizance. This Court has
held that, taking into consideration the nature of functions
of the learned NGT, it cannot be equated with other
Tribunals and in environmental matters, it will also have a
power to take suo motu cognizance. However, when the
credentials and bonafides of a litigant approaching the
learned NGT are seriously raised, the same cannot be
ignored.
67
99. We find that before a litigant is permitted to knock the
doors of justice and seek orders which have far reaching
effects of affecting the employment of thousands of persons,
stopping investment in the State, prejudicing the interests
of the farmers; the credentials and bonafides of the
applicants must be tested. In the present case, there is
scope to infer that the litigation could be at the behest of the
existing WBIs who wanted to avoid competition and
continue to get raw material at a cheaper rate. There is also
scope to infer that it could be at the behest of the WBIs in
the adjoining Yamuna Nagar district of Haryana where
lakhs of tons of timber is exported from the State of Uttar
Pradesh. There is scope to infer that it could be in the
interest of middlemen who are engaged in exporting timber
from Uttar Pradesh to Haryana. We would, therefore, only
request the learned NGT that , when credentials and
bonafides of such litigants are seriously raised and when
entertaining the grievance of such litigants, which is likely
68
to adversely affect the rights of many, it should ensure the
bonafides and credentials of such litigants.
100. Though we are allowing the appeals, setting aside the
orders of the learned NGT, and upholding the action of the
State Government in granting licenses, we would like to
remind the State and its authorities that it is their duty to
protect the environment. The State and its authorities
should ensure that necessary steps are taken for arresting
the problem of declining forest and tree cover. The State
and its authorities should make meaningful and concerted
efforts to ensure that the green cover in the State of Uttar
Pradesh is not reduced and to ensure that it increases.
101. The conservation of forest plays a vital role in
maintaining the ecology. It acts as processors of the water
cycle and soil and also as providers of livelihoods. As such,
preservation and sustainable management of forests deserve
to be given due importance in formulation of policies by the
State. In this regard, it will be apposite to refer to certain
earlier pronouncements of this Court.
69
(a) In the case of Samatha vs. State of A.P. and
Ors.
8, a three-Judge Bench of this Court after referring
to the earlier judgment in the case of State of H.P.
and others vs. Ganesh Wood Products and others
9
observed that, even while considering the grant of
renewal of mining leases, the provisions of the Forest
(Conservation) Act, 1980 and the Environment
(Protection) Act, 1986 would apply. This Court held
that the MOEF and all the States have a duty to
prevent mining operations affecting forests. It further
observed that, whether mining operations are carried
on within the reserved forest or other forest area, it is
their duty to ensure that the industry or enterprise
does not denude the forest to become a menace to
human existence nor a source to destroy flora and
fauna and biodiversity. It has further been held that if
it becomes inevitable to disturb the existence of
forests, there is a concomitant duty upon the State to
8
AIR 1997 SC 3297 = (1997) 8 SCC 191
9
(1995) 6 SCC 363
70
reforest and restore the green cover and to ensure
adequate measures to promote, protect and improve
both man-made and natural environment, flora and
fauna as well as biodiversity. It further held that there
can be no distinction between government forests and
private forests in the matter of forest wealth of the
nation and in the matter of environment and ecology.
(b) In the case of Essar Oil Ltd. vs. Halar Utkarsh
Samiti and others
10, this Court discussed the need
for a balance between the economic and social needs
and development on the one hand and environme nt
considerations on the other. It was observed that laws
on environment should be to create harmony between
the two since neither one can be sacrificed at the altar
of the other. In this regard, the observations of this
Court in the case of Indian Council for Enviro-Legal
10
(2004) 2 SCC 392
71
Action vs. Union of India and others
11 were quoted
as under:
“While economic development should
not be allowed to take place at the cost
of ecology or by causing widespread
environment destruction and violation;
at the same time, the necessity to
preserve ecology and environment
should not hamper economic and
other developments. Both development
and environment must go hand in
hand, in other words, there should not
be development at the cost of
environment.”
(c) In the case of Maharashtra Land Development
Corporation and others vs. State of Maharashtra
and another
12 reference was made to Glanrock
Estate Private Limited vs. State of Tamil Nadu
13
wherein it was observed as under:
“27. …. Forests in India are an
important part of the environment.
They constitute [a] national asset.
In various judgments of this Court
delivered by the Forest Bench of
this Court in T.N. Godavarman
11
(1996) 5 SCC 281
12
(2011) 15 SCC 616
13
(2010) 10 SCC 96
72
Thirumulpad v. Union of India (Writ
Petition No. 202 of 1995), it has
been held that ‘intergenerational
equity’ is part of Article 21 of the
Constitution.
28. What is intergenerational
equity? The present generation is
answerable to the next generation
by giving to the next generation a
good environment. We are
answerable to the next generation
and if deforestation takes place
rampantly then intergenerational
equity would stand violated.
29. The doctrine of sustainable
development also forms part of
Article 21 of the Constitution. The
‘precautionary principle’ and the
‘polluter pays principle’ flow from
the core value in Article 21.
30. The important point to be
noted is that in this case we are
concerned with vesting of forests in
the State. When we talk about
intergenerational equity and
sustainable development, we are
elevating an ordinary principle of
equality to the level of overarching
principle.”
(d) Of course, one cannot ignore one of the several
dicta of this Court in T.N. Godavarman
73
Thirumulkpad vs. Union of India and others
14
wherein this Court enunciated the definition of “forest”
in the following words:
“4. The Forest Conservation Act, 1980
was enacted with a view to check
further deforestation which ultimately
results in ecological imbalance; and
therefore, the provisions made therein
for the conservation of forests and for
matters connected therewith, must
apply to all forests irrespective of the
nature of ownership or classification
thereof. The word “forest” must be
understood according to its dictionary
meaning. This description covers all
statutorily recognised forests, whether
designated as reserved, protected or
otherwise for the purpose of Section
2(i) of the Forest Conservation Act. The
term “forest land”, occurring in Section
2, will not only include “forest” as
understood in the dictionary sense,
but also any area recorded as forest in
the Government record irrespective of
the ownership. This is how it has to be
understood for the purpose of Section
2 of the Act. The provisions enacted in
the Forest Conservation Act, 1980 for
the conservation of forests and the
matters connected therewith must
apply clearly to all forests so
understood irrespective of the
ownership or classification thereof…”
14
AIR 1997 SC 1228
74
102. Though we find that for the sustainable development of
the State and on account of the availability of the timber,
sanction of granting licenses can be permitted to continue,
however, as a responsible State, it needs to ensure that
environmental concerns are duly attended to. We, therefore,
direct the State Government to ensure that while granting
permission for felling trees of the prohibited species, it
should strictly ensure that the permission is granted only
when the conditions specified in the Notification dated 7
th
January 2020 are satisfied. The State Government shall
also ensure that when such permissions are granted to the
applicants, the applicants scrupulously follow the mandate
in the said notification of planting 10 trees against 1 and
maintaining them for five years.
103. In the result, the appeals are allowed. The impugned
orders passed by the learned National Green Tribunal,
Principal Bench, New Delhi in Original Application Nos.313,
335 and 396 of 2019 as well as in the Review Applications
are quashed and set aside.
75
104. Pending applications, if any, shall stand disposed of.
No costs.
..............................J.
[B.R. GAVAI]
.............................J.
[ B.V. NAGARATHNA ]
NEW DELHI;
OCTOBER 21, 2022
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