The State Of Uttar Pradesh vs Uday Education And Welfare Trust

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

JUDGMENT

B.R. GAVAI, J.

1. For the reasons stated in the applications for Signature Not Verified Digitally signed by GEETA AHUJA Date: 2022.10.21 impleadment/intervention, the same are allowed. 13:20:33 IST Reason: 1

2. This bunch of appeals challenges the order dated 18th

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 1st 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 18th March

2020, 2nd December 2020, and 21st 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 1st March 2019,

issued by the State of Uttar Pradesh.

2 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

5th 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

11th November 2016.

3

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 thereafter

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 4th 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

4 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 7th 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 12th December 2018 for grant of licenses to various

WBIs for the establishment of WBIs in 8 categories.

Between 12th December 2018 and 31st 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 1st March 2019, a notice was

5 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 28th 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 1st 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

3rd August 2019. Vide order dated 6th August 2019 passed

in Original Application nos. 313, 335 and 396 of 2019, the

6 learned NGT directed the State Government to review the

notice dated 1st 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 1st

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 1st October 2019. Vide order

dated 18th December 2019, the learned NGT issued

directions to the State Government to provide certain data.

Subsequently, vide the impugned order dated 18th February

2020, the learned NGT allowed the said Original

Applications and quashed and set aside the notice dated 1st

March 2019 issued by the State Government for

establishing new WBIs and all the provisional licenses given.

7

16. Being aggrieved thereby, Civil Appeal (Diary) No.12004

of 2020 was filed before this Court. Vide order dated 26th

October 2020, this Court dismissed the said appeals as

withdrawn with a liberty to file review application before the

learned NGT. Vide orders dated 18th March 2020, 2nd

December 2020, and 21st 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 Gupta, learned counsels

appearing on behalf of the appellants, who were granted

provisional licenses. We have also heard Shri Dhruv Mehta

8 and Shri Brijender Chahar, learned Senior Counsels

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

9 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 18th May 2007

and 5th October 2015 passed in Writ Petition (Civil) No.202

of 1995 (T.N. Godavarman Thirumulpad 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 18th December

10 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 elaborate procedure right from

11 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.

12

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

13 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

14 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 12th December 1996 has specifically prohibited the

felling of trees in any forest, public or private. He further

relies on the report of CEC dated 15th 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

15 12th 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 18th April 2007, accepted by this Court vide its order

dated 18th 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

16 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 4th 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 7th 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 11th

September 2019 and 20th 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 20th July 2012, the State of Uttar Pradesh

17 had notified 7 species of trees in the prohibited category.

However, vide another Notification dated 31st 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 11th 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 7th 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.

18

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 others1, Mantri Techzone Private

Limited vs. Forword Foundation and others2, Municipal

Corporation of Greater Mumbai vs. Ankita Sinha and

Others3 and Pragnesh Shah vs. Dr. Arun Kumar Sharma

and others4.

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

19 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 orders

deserve to be quashed and set aside.

20 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 12th 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;

21 (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 4th March 19975, 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 9th 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

22

43. Vide order dated 29th October 20026, 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 1st 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

23

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 3rd

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 18th May 2007:

“The matters relate to Saw Mills, Plywood and Veneer Units.

24 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 29th February 2008, this court

considered the issue regarding the manufacturing of

Medium Density Fiber board (MDF) and Particle board in

25 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.

26

52. The matter again came up for consideration before this

Court on 30th 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 26th May 2010 with the

SLC and representatives of WBIs Associations in the State of

27 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 Uttar 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 5th 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. Venugopal, learned senior counsel and other learned senior

28 counsel/counsels. Accordingly, we pass the following orders:

(i) The State Level Committees for Wood-Based Industries ("SLCs") are, subject to the compliance 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;

29 (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

30 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 5th October 2015, the MOEFCC issued

2016 Guidelines on 11th 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

31 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 the 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

32 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 upto 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.”

33

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 17th May 2017. Vide Notification

dated 11th 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

34 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 4th 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 7th 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 26th May 2010 had reduced the annual

35 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 1st 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 1st 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

36

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

37 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.

38 64. It is to be noted that after this Court allowed the

licenses to be issued to the closed sawmills vide order dated

1st September 2006, the SLCs were constituted. The

permissions were to be granted on the recommendations of

the CEC. Vide order dated 18th May 2007, this Court had

also accepted the recommendation of the CEC. Vide

another order dated 30th 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 5th 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

17th May 2017.

65. One of the duties which was cast upon the SLC was to

assess the availability of timber for wood based industrial

39 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

40 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.

41 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)

42 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.”

43 [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

44 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

45 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

46 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 TOF 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 ecological 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

47 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,

48 the felling of which is not permissible, it will be relevant to

note that the Notification dated 7th January 2020 issued by

the Government of Uttar Pradesh provides that the

prohibited trees shall not be felled till 31st 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 such tree has declined

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

49 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 19th 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 18th May 2007.

78. It is further to be noted that in pursuance of the order

of the learned NGT dated 28th 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 18th December

2019, another detailed affidavit was filed on behalf of the

State Government on 21st January 2020, giving therein the

details about the availability of timber. It was specifically

stated in the said affidavit that eucalyptus and poplar are

50 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.

51

80. It is relevant to note that MOEFCC, in pursuance of

the directions issued by the learned NGT had filed its

opinion on 18th 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 of 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.

52

82. Insofar as the contention of the learned counsel for the

respondents that, though in the meeting of the SLC dated

4th May 2018, it was decided to get the assessment done by

IPIRTI, the SLC in its meeting dated 7th 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 7th 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 29th 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

53 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 India7, 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

54

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. Shortly 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

55 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 5th 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,

56 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

57 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

58 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, Himachal

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,

59 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 areas. It is also

emphasized that if the new WBIs are permitted, it will

60 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.

61

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

62 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

63 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 provisional

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.

64

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

65 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.

66

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

67 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.

68

(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 others9

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

69 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 others10, this Court discussed the need

for a balance between the economic and social needs

and development on the one hand and environment

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

70 Action vs. Union of India and others11 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 another12 reference was made to Glanrock

Estate Private Limited vs. State of Tamil Nadu13

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

71 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

72 Thirumulkpad vs. Union of India and others14

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

73

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 7th

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.

74 104. Pending applications, if any, shall stand disposed of.

No costs.

..............................J. [B.R. GAVAI]

.............................J. [ B.V. NAGARATHNA]

NEW DELHI;

OCTOBER 21, 2022

75