Supreme Court of India
THE STATE OF UTTAR PRADESH & ORS. ETC. ETCversusUDAY EDUCATION AND WELFARE TRUST AND ANR. ETC
- Citation
- 2022 INSC 1131
- Decided
- 21 October 2022
- Disposal
- Appeal(s) allowed
Holding
The Supreme Court held that the NGT’s order quashing the provisional licences was unsustainable in law, as the expert scientific assessment by the Forest Survey of India demonstrated sufficient timber availability, and the State’s grant of licences under the 2016 Guidelines, subject to compliance with prohibited‑species conditions, was lawful.
Summary
The State of Uttar Pradesh granted provisional licences to 1,215 wood‑based industries (WBIs) after an e‑lottery, relying on a timber‑availability assessment by the Forest Survey of India (FSI) under the 2016 Wood‑Based Industries Guidelines. The licences were challenged before the National Green Tribunal (NGT), which quashed the State’s notice and the licences on the ground that timber availability was not adequately proven and that natural‑justice principles were breached. The Supreme Court examined the scientific methodology of the FSI report, the role of expert bodies, the applicability of the 2016 Guidelines, and the need to balance sustainable development with economic interests. It held that the FSI’s assessment was sound, the State had complied with the Guidelines, and the NGT had erred in ignoring expert evidence and the principles of natural justice. Consequently, the Court set aside the NGT’s orders, upheld the State’s licence grants subject to conditions on prohibited‑species felling, and directed the State to enforce those conditions.
Issues considered
- Whether the NGT was justified in quashing the provisional licences for WBIs on the basis of alleged insufficiency of timber availability.
- Whether the scientific assessment by the Forest Survey of India constitutes a binding basis for the State to grant licences under the 2016 Guidelines.
- Whether the principles of natural justice under Section 19(1) of the NGT Act were violated by the NGT’s proceedings.
- Whether the State may grant licences for WBIs while ensuring compliance with the notification on prohibited species dated 7 January 2020.
- Whether the court should intervene in matters that fall within the domain of expert agencies.
Legislation cited
Subjects
Wood based industriesTimber availabilitySustainable developmentNatural justiceNational Green TribunalForest Survey of IndiaProhibited speciesLicensingEnvironmental law
Judgment
[2022] 19 S.C.R. 781 781
THE STATE OF UTTAR PRADESH & ORS. ETC. ETC A
v.
UDAY EDUCATION AND WELFARE TRUST AND ANR. ETC.
ETC.
(Civil Appeal Nos.2407–2412 of 2021) B
OCTOBER 21, 2022
[B. R. GAVAI AND B. V. NAGARATHNA, JJ.]
National Green Tribunal Act, 2010: ss. 19(1), 20, 22 – Wood
Based Industries [Establishment and Regulation] Guidelines 2016
C
– Need for sustainable development – Provisional license – Issuance
of, for establishment of Wood based industries-WBIs – Timber
assessment for Trees Outside Forest-TOF in the State of U.P. for
WBIs by the Forest Survey of India-FSI – E-lottery held for grant of
licenses to various WBIs and issuance of provisional licenses to
1215 successful applicants in the 8 categories to set up their WBIs D
– Subsequently, issuance of notice by the Government of UP
communicating the same to WBIs – Challenged to, by the respondent
– Direction by the National Green Tribunal to the U.P. State to submit
a report and to review its notice with regard to the establishment of
new WBIs –NGT then quashed and set aside the notice issued by
E
the State Government for establishing new WBIs and all the
provisional licenses given – NGT held that WBIs can be allowed to
operate only after ensuring timber and raw material availability to
sustain such industries and this was to be determined in actual terms
and not on mere assumptions – On appeal, held: Estimation arrived
at by the FSI was by applying a proper and adequate scientific F
method – Courts should not enter into an area that is the domain of
the experts – Duty of the State as well as its citizens to safeguard
the forest of the country – Principles of natural justice are required
to be followed even in administrative actions when such actions
adversely affect the rights of the citizens – Furthermore, before a
G
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 of the applicants must
be tested – While protecting the environment, the need for sustainable
development has also to be taken into consideration and a proper H
781
782 SUPREME COURT REPORTS [2022] 19 S.C.R.
A balance between the two has to be struck – 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 – Thus, the State Government directed
to ensure that while granting permission for felling trees of the
B
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 – Impugned orders of the NGT are
not sustainable in law andthus, are quashed and set aside.
Allowing the appeals, the Court
C
HELD: 1.1 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. Even as per the assessment
of the IPIRTI, the timber requirement of a plywood unit is
D 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. [Para 49 & 59][797-D; 801-D-E]
1.2 As per the 2016 Guidelines, the SLC was reconstituted
E in the State of U.P. 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. For conducting the survey,
F the FSI acquired satellite data for the inventoried districts of Uttar
Pradesh from National Remote Sensing Centre, Hyderabad. The
entire gambit of scientific methodology was applied. 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. The contention of the respondents that the rotation
G method was not applied is totally incorrect. [Para 64-67][803-G-
H; 804-A, F; 805-B-C]
1.3 Estimation arrived at by the FSI was by applying a proper
and adequate scientific method. However, it is surprising that
the learned NGT has brushed aside such a scientific exercise. A
H
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 783
WELFARE TRUST AND ANR. ETC. ETC.
body having expertise in the field, i.e. the FSI, upon a scientific A
study, has concluded that there is sufficient timber available in
the State of Uttar Pradesh. [Para 70, 71 & 89][806-B-C; 812-F-
G]
1.4 FSI has also emphasized the need of promoting TOF. It
has been observed that TOF are significant natural, renewable B
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. [Para 74][808-B-C]
2.1 Prohibited trees cannot be felled unless permission to C
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 [Para 76][808-E-F] D
2.2 It is 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. NGT has failed to take into consideration the stand of
the MOEFCC, which also supported the stand of the State that E
sufficient timber was available legally to run the new WBIs. [Para
79, 81][809-D-E; 810-A]
2.3 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 F
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 [1994] 6 SCC 651.[Para 83][810-F-G]
3.1 It is the duty of the State as well as its citizens to G
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. While
protecting the environment, the need for sustainable
H
784 SUPREME COURT REPORTS [2022] 19 S.C.R.
A development has also to be taken into consideration and a proper
balance between the two has to be struck. [Para 87 & 88][812-E-
F]
3.2 It is also emphasized that if the new WBIs are permitted,
it will reduce the import of WBIs produce. However, all these
B aspects have not been taken into consideration by the learned
NGT. Court is of the view that the NGT has taken a lopsided
view. It has failed to take into consideration the concerns
expressed by the State. NGT has committed patent error in
ignoring the expert’s report and sitting in appeal over the same.
NGT has also failed to take into consideration the stand taken by
C the MOEFCC, which supported the stand of the State. Impugned
orders of the learned NGT are not sustainable in law. [Para 91 &
94][813-F; 814-E-G]
3.3 On the date on which the review applications were
rejected, 1215 provisional licenses were already granted and 633
D units had already been established and commenced production,
NGT has passed the impugned order which adversely affects their
interest.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
E 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. [Para 95][815-
A-C]
3.4 This court finds that before a litigant is permitted to
F 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. [Para 99][816-C]
4.1 Though this court is allowing the appeals, setting aside
G
the orders of the learned NGT, and upholding the action of the
State Government in granting licenses, the court 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
H forest and tree cover. The court directs the State Government to
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 785
WELFARE TRUST AND ANR. ETC. ETC.
ensure that while granting permission for felling trees of the A
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. [Para 100 & 102][816-F;
819-E]
4.2 The impugned orders passed by the learned National B
Green Tribunal, Principal Bench, New Delhi as well as in the
Review Applications are quashed and set aside. [Para 103][819-
F-G]
Common Cause vs. Union of India and others (2017) 9
SCC 499: [2017] 13 SCR 361; Mantri Techzone Private
Limited vs. Forword Foundation and others [2019] 18 C
SCC 494; Municipal Corporation of Greater Mumbai
vs. Ankita Sinha and Ors.(2021) SCC OnLine SC 897;
Pragnesh Shah vs. Dr. Arun Kumar Sharma and others
[2022] SCC OnLine SC 79;T ata Cellular vs. Union of
India (1994) 6 SCC 651 : [1994] 2 Suppl. SCR 122 D
Para 83; Samatha vs. State of A.P. and Ors.(1997) 8
SCC 191 : [1997] Suppl. SCR 305; State of H.P. and
others vs. Ganesh Wood Products and others (1995) 6
SCC 363 : [1995] 3 Suppl. SCR 477; Essar Oil Ltd. vs.
Halar Utkarsh Samiti and others (2004) 2 SCC 392 :
[2004] 1 SCR 808; Indian Council for Enviro–Legal E
Action vs. Union of India and others (1996) 5 SCC
281 : [1996] 1 Suppl. SCR 507; Maharashtra Land
Development Corporation and others vs. State of
Maharashtra and another (2011) 15 SCC 616 : [2010]
15 SCR 37; Glanrock Estate Private Limited vs. State F
of Tamil Nadu (2010) 10 SCC 96 : [2010] 12 SCR 597;
T.N. Godavarman Thirumulkpad vs. Union of India and
others AIR 1997 SC 1228 : [1996] 9 Suppl. SCR 982
– referred to.
Case Law Reference
G
[2017] 13 SCR 361 referred to Para 36
[1994] 2 Suppl. SCR 122 referred to Para 83
[1997] Suppl. SCR 305 referred to Para 101
[1995] 3 Suppl. SCR 477 referred to Para 101
[2004] 1 SCR 808 referred to Para 101 H
786 SUPREME COURT REPORTS [2022] 19 S.C.R.
A [1996] 1 Suppl. SCR 507 referred to Para 101
[2010] 15 SCR 37 referred to Para 101
[2010] 12 SCR 597 referred to Para 101
[1996] 9 Suppl. SCR 982 referred to Para 101
B
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.2407-
2412 of 2021.
From the Judgment and Order dated 02.12.2020 of the National
Green Tribunal, Principal Bench, New Delhi in Review Application
C Nos.40 and 41 of 2020 and dated 21.12.2020 in Review Application
No.42 of 2020 and dated 18.02.2020 in Original Application Nos.313,
335 and 396 of 2019.
With
D Civil Appeal Nos.3144-3146, 3132-3134, 3135-3137, 3138, 4061-
4062, 3141, 2547-2548, 3142-3143, 3147-3149 Of 2022
Ms. Aishwarya Bhati, ASG, Vikas Singh, P.S. Patwalia, Rana
Mukherjee, V. Giri, Syed Waseem Qadri, Sr. Adv., V. K. Uniyal, Vinay
Navare, V.K. Shukla, Dhruv Mehta, Brijender Chahar, Sr. Advs.,
E Kamlendra Mishra, Ms. Prerna Singh, Guntur Pramod Kumar, Rajeev
Kumar Dubey, Saurabh Singh Chauhan, Ms. Saroj Tripathi, Md. Rashid
Saeed, Saeed Quadri, Dinesh Kumar Garg, Abhishek Garg, Dhananjay
Garg, Ishaan Tiwari, Satyajeet Kumar, Rajesh Srivastava, Gaurav Verma,
Neeraj Datt Gaur, Lokesh Kumar Choudhary, A. Lakshminarayanan,
F Rudraksh Gupta, A. Velan, Akhil P. Philip, Vishwadeep Chauhan, Vikalp
Sharma, Ankolekar Gurudatta, Ajay Singh, Ram Kumar, Debasis
Mukherjee, Lokesh Kumar Choudhary, Vivek Gupta, Mrinmay
Bhattmewara, Rajvir Singh Bhati, Shyam R. Agarwal, Namit Saxena,
Ms. Suhashini Sen, Ms. Archana Pathak Dave, Ms. Chinmayee Chandra,
Varun Chugh, Gurmeet Singh Makker, Ansar Ahmad Chaudhary, Rashid
G Hasan, Ms. Shehla Chaudhary, Md. Anas Chaudhary, Dr. Vinod Kumar
Tewari, Alok Kumar, Nihal Ahmad, Arvind Kumar Shukla, Amit Kumar,
Ms. Prachi Goyal, Ms. Anu Singla, Tushar Swahi, Vasu, Arvind Kumar
Shukla, Vasu Chaudhar, Ms. Prachi, S. K. Verma, Zulfiker Ali P. S,
Advs. for the appearing parties.
H
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 787
WELFARE TRUST AND ANR. ETC. ETC.
The Judgment of the Court was delivered by A
B. R. GAVAI, J.
1. For the reasons stated in the applications for impleadment/
intervention, the same are allowed.
2. This bunch of appeals challenges the order dated 18th February B
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 C
pursuance thereof.
3. The appeals also challenge the orders dated 18th March 2020,
2 December 2020, and 21st December 2020 vide which the review
nd
applications filed by the State of Uttar Pradesh and the provisional license
holders have been rejected. D
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.
E
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 F
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 G
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.
H
788 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B
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
C 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 available in the State, a reassessment may
D 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,
E 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
F 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 1 st March
2019, a notice was issued by the Government of Uttar Pradesh
communicating the grant of provisional licenses to the newly selected
G 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
H Committee comprising of the representative of Principal Secretary
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 789
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
(Forest), U.P. and the Principal Chief Conservator of Forest, U.P. to A
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. B
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 learned NGT directed the State Government to
review the notice dated 1st March 2019 with regard to the establishment C
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 D
No.732 of 2019 in O.A. Nos. 313, 335 and 396 of 2019, seeking
modification of the order dated 6th 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 E
set aside the notice dated 1st March 2019 issued by the State Government
for establishing new WBIs and all the provisional licenses given.
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 F
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 G
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
H
790 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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 and Shri Brijender Chahar, learned
Senior Counsels appearing on behalf of the respondent No.1.
B
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
C 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
D 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 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
E 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
F 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
G
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
2019, regarding the availability of timber, the learned NGT has totally
H ignored the same.
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 791
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
22. Shri V. Giri, learned Senior Counsel, submits that the learned A
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
B
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 C
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 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 D
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 E
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. F
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 G
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) H
792 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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 actual requirement. She submits that in the State of
B
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.
C
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
D 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
E precautionary principle and 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
F is raised, the appeal could not be tenable.
30. Shri Dhruv Mehta submits that this Court vide order dated
th
12 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
G 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 12th October 2006. He
H submits that an assessment has to be done on the basis of the district-
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 793
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
wise survey about timber availability from the TOF category. He submits A
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.
B
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 C
units has gone much higher and, therefore, the timber which is available
in the 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 D
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 E
said officer dated 11th September 2019 and 20th April 2018have 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”. F
34. The learned Senior Counsel submits that vide Notification dated
th
20 July 2012, the State of Uttar Pradesh 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 G
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 H
794 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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.
B 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
C others1, Mantri Techzone Private Limited vs. Forword Foundation
and others2, Municipal Corporation of Greater Mumbai vs. Ankita
Sinha and Others3and Pragnesh Shah vs. Dr. Arun Kumar Sharma
and others4.
37. Shri Dhruv Mehta, relying on the judgment of this Court in the
D 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 arguments made
on behalf of the appellants with regard to locus are without substance.
E 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
F 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.
G Learned Senior Counsel, therefore, submits that the impugned orders
deserve to be quashed and set aside.
1
(2017) 9 SCC 499
2
(2019) 18 SCC 494
3
2021 SCC OnLine SC 897
4
2022 SCC OnLine SC 79
H
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 795
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
EARLIER ORDERS OF THIS COURT A
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:
B
“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; C
(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.
D
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;
(ii) The number of existing saw mills which can safely E
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 F
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
G
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.”
5
(1997) 3 SCC 312 H
796 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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.
43. Vide order dated 29th October 20026, this Court further directed
thus:
B “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
C 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
D 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
E recommendation.
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
F 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.
G 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
6
H (2008) 16 SCC 337
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 797
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
considered the report of CEC and passed the following order on 18 th A
May 2007:
“The matters relate to Saw Mills, Plywood and Veneer Units.
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. B
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 C
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 D
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 E
(MDF) and Particle board in 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, F
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,
G
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
H
798 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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.
52. The matter again came up for consideration before this Court
on 30th April 2010, when this Court passed the following order:
B “(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,
C 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
D 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.
E 54. The CEC in its meeting held on 26th May 2010 with the SLC
and representatives of WBIs Associations in the State of 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
F 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.
G 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:
H
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 799
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
We have heard Shri Harish Salve, learned amicus curiae, A
Shri Ranjit Kumar, learned Solicitor General of India, Shri K.K.
Venugopal, learned senior counsel and other learned senior 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 B
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 C
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 D
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; E
(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 F
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
G
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 H
800 SUPREME COURT REPORTS [2022] 19 S.C.R.
A SLCs to be constituted in each State/Union Territory for which the SLC
was not yet constituted. The MOEF was also authorized to issue
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.
B
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
C 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 considered
D 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,
E 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
F 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
G 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 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.
H
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 801
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
The timber requirement of a plywood unit may be taken as A
‘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
B
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 C
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.”
D
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. E
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. F
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 G
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 H
802 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B
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 consumption of timber of sawmills
C 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
D 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
E 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
F 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
G 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
H total potential availability of timber per year in the State of
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 803
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
Uttar Pradesh is 80.30 lakh cubic meters, which includes A
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 cubic meters from the other
species. Out of 22 species, there are 10 species that are
B
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; C
(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 D
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.
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 E
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 F
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 G
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 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 H
804 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B 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
C 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-
D wise, species-wise and girth class-wise number of stems and
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
E 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
F 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
G 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. 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
H of each stratum for each district by combining the estimated stems
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 805
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
and volumes under block, linear and scattered stratum. By A
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 B
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:
C
“5.4 Estimates of Annual Potential Production of Wood from
TOF (Rural)
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 D
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 E
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 F
calculated using Von Mentel formula as given below:
Yield= 2GS/R
Where GS: Growing Stock
R: rotation period G
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.”
[emphasis supplied] H
806 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B 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.
C 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 alternative to
D 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
E (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
F 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 periods; the first one being from 1991
G 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:
H
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 807
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
“5. Conclusion A
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 B
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 C
will have to be further strengthened 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 D
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.
E
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 F
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, G
environmental amelioration in the urban areas and feed wood based
industries with the raw material and thus generate significant
employment. TOF form a 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. H
808 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B 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.
C 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
D takes into consideration the prohibited trees, 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
E 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
F 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
G number of years, the fruit bearing 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
H approved by this Court vide its order dated 18th May 2007.
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 809
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
78. It is further to be noted that in pursuance of the order of the A
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 3rd August 2019. Not only this, but in pursuance of the directions
issued by the learned NGT on 18th December 2019, another detailed
B
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 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 C
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.
D
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. E
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.
F
“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 G
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.”
H
810 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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.
82. Insofar as the contention of the learned counsel for the
respondents that, though in the meeting of the SLC dated 4th May 2018,
B 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
C 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
D 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 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
E 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
F 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:
G “77. The duty of the court is to confine itself to the question of
legality. Its concern should be:
1. Whether a decision-making authority exceeded its
powers?
7
H (1994) 6 SCC 651
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 811
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
2. Committed an error of law, A
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. B
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 C
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. D
(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 E
Brind [(1991) 1 AC 696] , Lord Diplock refers specifically to one
development, namely, the possible recognition of the principle of
proportionality. In all these 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”.” F
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 G
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 H
812 SUPREME COURT REPORTS [2022] 19 S.C.R.
A ‘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, 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
B
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
C 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.
D CONCLUSION
87. It cannot be disputed that Section 20 of the NGT Act itself
directs the learned Tribunal to apply the principles of 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
E 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
F 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
G 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 Statistics Division, Government of Uttar
Pradesh.The said report itself shows that the consultants, during the
field survey, observed resentment among the plywood manufacturers
H
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 813
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
against the process of issuing new licenses to the WBIs by the State A
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, B
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 C
report further finds that the western districts of Uttar Pradesh, i.e. Meerut,
Muzaffarnagar, Saharanpur, 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 D
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 E
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 F
emphasized that if the new WBIs are permitted, it will 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 G
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 H
814 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B
workers.
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
C 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
D 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
E 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 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
F 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
G 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
H
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 815
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
the review applications were rejected, 1215 provisional licenses were A
already granted and 633 units had 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
B
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 C
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.
96. Another aspect that needs consideration is that a serious issue D
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 E
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 F
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
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 G
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 H
816 SUPREME COURT REPORTS [2022] 19 S.C.R.
A (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
B
ignored.
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
C 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
D 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 to adversely affect the
E 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
F 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.
G 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.
H
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 817
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
(a) In the case of Samatha vs. State of A.P. and Ors.8, a three- A
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 others9observed that, even while considering the grant of
renewal of mining leases, the provisions of the Forest
(Conservation) Act, 1980 and the Environment (Protection) Act,
B
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 C
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 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
D
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 E
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 F
Council for Enviro-Legal Action vs. Union of India and
others11were 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 G
necessity to preserve ecology and environment should not
8
AIR 1997 SC 3297 = (1997) 8 SCC 191
9
(1995) 6 SCC 363
10
(2004) 2 SCC 392
11
(1996) 5 SCC 281
H
818 SUPREME COURT REPORTS [2022] 19 S.C.R.
A 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
B 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
C Court in T.N. Godavarman 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
D 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
E 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
F 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 Thirumulkpad vs. Union of India
and others14wherein this Court enunciated the definition of
“forest” in the following words:
G
“4. The Forest Conservation Act, 1980 was enacted with a view
to check further deforestation which ultimately results in ecological
12
(2011) 15 SCC 616
13
(2010) 10 SCC 96
14
H AIR 1997 SC 1228
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND 819
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
imbalance; and therefore, the provisions made therein for the A
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,
B
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 C
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…”
102. Though we find that for the sustainable development of the D
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 E
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. F
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.
104. Pending applications, if any, shall stand disposed of. No costs. G
Nidhi Jain and Anurag Bhaskar Appeals allowed.
(Assisted by : Rahul Kumar, LCRA)
H
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