# THE STATE OF UTTAR PRADESH & ORS. ETC. ETC v. UDAY EDUCATION AND WELFARE TRUST AND ANR. ETC. ETC

- **Citation:** [2022] 19 S.C.R. 781
- **Court:** Supreme Court of India
- **Decided:** 2022-10-21
- **Case number:** Civil Appeal Nos.2407-2412 of 2021
- **Bench:** B. R. Gavai, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-uttar-pradesh-ors-etc-etc-v-uday-education-and-welfare-trust-and-36004
- **Pages:** 39

## Headnote

National Green Tribunal Act, 2010: ss. 19(1), 20, 22 - Wood
Based Industries [Establishment and Regulation] Guidelines 2016
- 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
- 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
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
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
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
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[2022] 19 S.C.R.
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
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
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
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
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,
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 contenti

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 [2022] 19 S.C.R. 781
781
THE STATE OF UTTAR PRADESH & ORS. ETC. ETC
v.
UDAY EDUCATION AND WELFARE TRUST AND ANR. ETC.
ETC.
(Civil Appeal Nos.2407-2412 of 2021)
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
- 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
- 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
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
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
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
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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
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
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
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
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,
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
method was not applied is totally incorrect. [Para 64-67][803-GH; 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
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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. [Para 70, 71 & 89][806-B-C; 812-FG]
1.4 FSI has also emphasized the need of promoting TOF. It
has been observed that TOF are significant natural, renewable
resources which make vital contributions to the agro-ecology,
socio-economy of the rural area, and environmental amelioration
in the urban area and feed WBIs with raw material and thus
generate significant employment. [Para 74][808-B-C]
2.1 Prohibited trees cannot be felled unless permission to
fell such tree has been obtained in writing from the competent
authority. The tree owners are also required to maintain 10 trees
in place of each tree felled. It is thus clear that there is no absolute
prohibition for felling the trees which are in the prohibited
category. However, the same can be done only in exceptional
circumstances [Para 76][808-E-F]
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
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
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
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
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND
WELFARE TRUST AND ANR. ETC. ETC.
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development has also to be taken into consideration and a proper
balance between the two has to be struck. [Para 87 & 88][812-EF]
3.2 It is also 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. 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
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
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
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][815A-C]
3.4 This court finds that before a litigant is permitted to
knock the doors of justice and seek orders which have far reaching
effects of affecting the employment of thousands of persons,
stopping investment in the State, prejudicing the interests of the
farmers; the credentials and bonafides of the applicants must be
tested. [Para 99][816-C]
4.1 Though this court is allowing the appeals, setting aside
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
forest and tree cover. The court directs the State Government to
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ensure that while granting permission for felling trees of the
prohibited species, it should strictly ensure that the permission
is granted only when the conditions specified in the Notification
dated 7th January 2020 are satisfied. [Para 100 & 102][816-F;
819-E]
4.2 The impugned orders passed by the learned National
Green Tribunal, Principal Bench, New Delhi as well as in the
Review Applications are quashed and set aside. [Para 103][819F-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
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
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
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
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
[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
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND
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[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
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.24072412 of 2021.
From the Judgment and Order dated 02.12.2020 of the National
Green Tribunal, Principal Bench, New Delhi in Review Application
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
Civil Appeal Nos.3144-3146, 3132-3134, 3135-3137, 3138, 40614062, 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.,
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,
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
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.
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The Judgment of the Court was delivered by
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
2020, passed by the learned National Green Tribunal, Principal Bench,
New Delhi (hereinafter referred to as "the learned NGT") in Original
Application Nos.313, 335 and 396 of 2019, thereby quashing and setting
aside the notice dated 1st March 2019 issued by the State of Uttar Pradesh
for establishing new wood based industries (hereinafter referred to as
"WBIs") and also setting aside all the provisional licenses given in
pursuance thereof.
3. The appeals also challenge the orders dated 18th March 2020,
2nd December 2020, and 21st December 2020 vide which the review
applications filed by the State of Uttar Pradesh and the provisional license
holders have been rejected.
4. Civil Appeal Nos.2407-2412 of 2021 are filed by the State of
Uttar Pradesh. The rest of the Civil Appeals are filed by the provisional
license holders, who were granted licenses in pursuance of the notice
dated 1st March 2019, issued by the State of Uttar Pradesh.
FACTUAL BACKGROUND
5. For the sake of convenience, we will refer to the facts as found
in Civil Appeal Nos. 2407-2412 of 2021 filed by the State of Uttar Pradesh.
6. There are series of orders passed by this Court and the Central
Empowered Committee (hereinafter referred to as "CEC") appointed
by this Court, issuing various directions for prohibiting/regulating the
felling of trees as well as the establishment of WBIs. We will refer to
them extensively in the subsequent paragraphs.
7. In pursuance of the order passed by this Court dated 5th October
2015 in Writ Petition (Civil) No.202 of 1995 (T.N. Godavarman
Thirumalpad vs. Union of India), the Ministry of Environment and Forest
and Climate Change ("MOEFCC" for short) issued Wood Based
Industries (Establishment and Regulation) Guidelines 2016 (hereinafter
referred to as "2016 Guidelines") vide Notification No. S.O. 3456 (E)
dated 11th November 2016.
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND
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8. Subsequent to the 2016 Guidelines, timber assessment for Trees
Outside Forest ("TOF" for short) in the State of Uttar Pradesh for WBIs
was done for the period between February 2017 and December 2017 by
the Forest Survey of India ("FSI" for short). The FSI thereafter submitted
its report, which contains district wise, species wise and diameter class
wise number of stems (trees), volume and annual potential production of
timber from TOF in rural areas of all the districts of the State.
9. In pursuance of the 2016 Guidelines, the matter was placed
before the State Level Committee ("SLC" for short) for grant of licenses
to various WBIs. The SLC in its meeting held on 4th May 2018,
considered the matter about the grant of licenses to various WBIs after
taking into consideration the availability of wood in the State of Uttar
Pradesh for determining the amount of timber available for new WBIs.
In the said meeting, it was also decided that, in order to determine the
correct number of new licenses to be issued to WBIs under different
categories against the timber available in the State, a reassessment may
be done by the Indian Plywood Industries Research and Training Institute
("IPIRTI" for short).
10. In the meeting of the SLC, held on 7th September 2018, since
it was found that the capacity of plywood units is taken as fixed by the
2016 Guidelines, which, in turn, was based on the assessment of IPIRTI,
a decision was taken that there was no need for the fresh assessment of
the capacity by IPIRTI.
11. In pursuance of the aforesaid decision, E-lottery was held on
12th December 2018 for grant of licenses to various WBIs for the
establishment of WBIs in 8 categories. Between 12th December 2018
and 31st December 2018, online letters of offer were issued to 1348
successful applicants. Subsequently, in the months of February and March
2019, provisional licenses were issued to 1215 successful applicants in
the 8 categories to set up their WBIs. Subsequent thereto, on 1st March
2019, a notice was issued by the Government of Uttar Pradesh
communicating the grant of provisional licenses to the newly selected
WBIs.
12. Being aggrieved thereby, Original Application No. 313 of 2019
came to be filed by Uday Education and Welfare Trust before the learned
NGT in March 2019. Vide order dated 28th March 2019, the learned
NGT directed the State Government to submit a report from the Joint
Committee comprising of the representative of Principal Secretary
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(Forest), U.P. and the Principal Chief Conservator of Forest, U.P. to
examine the issues.
13. Being aggrieved by the notice dated 1st March 2019 issued by
the State Government, Original Application Nos. 335 and 396 of 2019
also came to be filed by Samvit Foundation and U.P. Timber Association
respectively before the learned NGT.
14. In pursuance of the directions issued by the learned NGT, the
Joint Committee Report came to be submitted on 3rd August 2019. Vide
order dated 6th August 2019 passed in Original Application nos. 313, 335
and 396 of 2019, the learned NGT directed the State Government to
review the notice dated 1st March 2019 with regard to the establishment
of new WBIs by 1350 units strictly in terms of the judgment of this
Court in the case of T.N. Godavarman vs. Union of India. Vide order
dated 1st October 2019, the learned NGT directed the status quo to be
maintained.
15. The State of Uttar Pradesh filed an Interlocutory Application
No.732 of 2019 in O.A. Nos. 313, 335 and 396 of 2019, seeking
modification of the order dated 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
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
review application before the learned NGT. Vide orders dated 18th March
2020, 2nd December 2020, and 21st December 2020, the learned NGT
rejected the Review Applications.
17. The appellants, therefore, approached this Court being
aggrieved by the orders passed by the learned NGT in the Original
Applications as well as in the Review Petitions.
SUBMISSIONS
18. We have heard Shri Vikas Singh, Shri P.S. Patwalia and Mr.
Rana Mukherjee, learned Senior Counsel appearing on behalf of the
THE STATE OF U.P. & ORS. ETC. ETC v. UDAY EDUCATION AND
WELFARE TRUST AND ANR. ETC. ETC. [B. R. GAVAI, J.]
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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.
19. Shri Vikas Singh, learned Senior Counsel, submitted that the
decision of the State Government to establish WBIs is in accordance
with the 2016 Guidelines issued by the MOEFCC. He submits that the
timber requirement by 1215 new WBIs, which were issued provisional
licenses is only 12.35 lakh cubic meters per year, whereas the total timber
available in the State is 80.30 lakh cubic meters per year. It is, therefore,
submitted that, as such, the requirement is not even 20% of the total
availability of timber. Learned Senior Counsel submitted that the only
authorized agency in the country to conduct a survey of the forest as
well as TOF is FSI. It is submitted that the object of IPIRTI is not to
conduct a survey of either forest or TOF. It is submitted that, as a matter
of fact, the learned NGT itself has directed such a study to be conducted
by FSI, who has already undertaken similar studies for many States like
Punjab, Maharashtra and others. It is submitted that when the survey
with regard to availability of timber in the State of Uttar Pradesh was
done by the very same agency, the learned NGT fell in gross error in
again directing the State Government to conduct such a survey through
the FSI.
20. It is submitted that even the MOEFCC had supported the
stand taken by the State of Uttar Pradesh and, therefore, the learned
NGT ought not to have interfered with the decision of the State
Government.
21. Shri P.S. Patwalia, learned Senior Counsel also submitted that
the decision of the State Government was in tune with the decision of
this Court dated 18th May 2007 and 5th October 2015 passed in Writ
Petition (Civil) No.202 of 1995 (T.N. Godavarman Thirumulpad vs.
Union of India). It is submitted that when an expert body like the FSI
had done an elaborate study, there was no reason for the learned NGT
to have sat in appeal over the same. He further submits that though a
detailed affidavit has been filed on behalf of the State of Uttar Pradesh
in compliance with the order of the learned NGT dated 18th December
2019, regarding the availability of timber, the learned NGT has totally
ignored the same.
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22. Shri V. Giri, learned Senior Counsel, submits that the learned
NGT erred in passing orders which have vitally affected the rights of
the citizens who were granted provisional licenses. He submits that the
order impugned is totally in breach of the principles of natural justice. It
is submitted that, from the perusal of the record, it is clear that the State
of Haryana while calculating its requirement for wood also takes into
consideration the import from the State of Uttar Pradesh. It is submitted
that when there is excess wood available in the State of Uttar Pradesh,
there is no reason why the same should be permitted to be exported to
the State of Haryana at the cost of entrepreneurs in the State of Uttar
Pradesh.
23. Shri Vinay Navare, learned Senior Counsel, submitted that
the timber used in the WBIs is from the trees which are agro-based. He
submits that though the State of Uttar Pradesh had adopted an elaborate
procedure right from June 2018 till the grant of licenses, the applicants
before the learned NGT had taken no steps. Shri Navare submits that
only after the provisional licenses were issued and 632 out of 1215 WBIs
provisional license holders had already been established and commenced
operations, the applications were entertained and the orders were passed
to the prejudice of the WBIs. It is submitted that Section 19(1) of the
National Green Tribunal Act, 2010 (hereinafter referred to as "the NGT
Act") mandates following of the principles of natural justice. It is
submitted that though the applications for impleadment were made by
the WBIs, the applicants were not granted an opportunity of being heard.
24. Shri V.K. Uniyal, learned Senior Counsel submitted that the
learned NGT had erred in using the word "allotted". It is submitted that
there is no question of allotment of timber to the WBIs and they are
required to purchase the same from the open market.
25. Shri V.K. Shukla, learned Senior Counsel submitted that the
State Government decided to grant provisional licenses for 8 different
categories of WBIs. The requirement of raw material for different
categories of WBIs is different. It is submitted that the learned NGT
has grossly erred in considering all categories of WBIs together and
setting aside the licenses granted to all of them. It is submitted that the
said industries are established in pursuance of the National Agro Forestry
Policy of 2014 and as such the learned NGT ought not to have interfered.
26. Ms. Prerna Singh, learned counsel appears for the appellants,
who have been granted provisional licenses for plywood (press only)
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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
Uttar Pradesh, veneer is manufactured in surplus, which is exported to
the State of Haryana.
27. Shri Rudraksh Gupta, learned counsel, submits that the learned
NGT has failed to take into consideration the report of the National
Poplar Commission of India.
28. All the learned counsel appearing on behalf of the appellants,
in unison, submit that the original applicants before the Court were not
bonafide litigants. It is submitted that there are reasons to believe that
the proceedings were initiated at the instance of either the existing WBIs
in the State of Uttar Pradesh to prevent competition or they were filed
at the instance of the WBIs in the State of Haryana who were importing
timber from the State of Uttar Pradesh at cheaper rates.
29. Shri Dhruv Mehta, learned Senior Counsel appearing on behalf
of the respondent No.1, on the contrary, submits that this Court has
repeatedly held that the principles of sustainable development, the
precautionary principle and the polluter pays principle are to be followed
consistently. He raised a preliminary objection on the ground that in view
of Section 22 of the NGT Act, the scope of an appeal before this Court
could be limited to that of Section 100 of the Code of Civil Procedure,
1908. It is, therefore, submitted that unless a substantial question of law
is raised, the appeal could not be tenable.
30. Shri Dhruv Mehta submits that this Court vide order dated
12th December 1996 has specifically prohibited the felling of trees in any
forest, public or private. He further relies on the report of CEC dated
15th March 2005 to buttress his submission that WBIs can be permitted
only if they exclusively use timber derived from poplar and eucalyptus
species or agriculture waste products. It is submitted that the said
guidelines also specifically provided that if the unit is found to have used
any timber other than poplar and eucalyptus whether from a legal source
or otherwise, the license granted to the unit shall be liable to be cancelled.
He further relies on the report of CEC dated 12th October 2006. He
submits that an assessment has to be done on the basis of the district-
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wise survey about timber availability from the TOF category. He submits
that the said report of CEC itself would reveal that the assessment of
the State is much less than what was initially projected by the State
Government. He submits that unless the timber availability for the new
WBIs is assessed and the SLC examines and recommends its approval,
it is not permissible to establish new WBIs.
31. Shri Mehta further submits that the report of CEC dated 18th
April 2007, accepted by this Court vide its order dated 18th May 2007,
would show that the availability of timber for WBIs in the State of Uttar
Pradesh is only 45.70 lakh cubic meters per year. Learned Senior Counsel
submits that taking into consideration the fact that presently many
imported machines from China are being used, the capacity of the existing
units has gone much higher and, therefore, the timber which is available
in the State of Uttar Pradesh would not be sufficient to meet the demand
of the existing industries.
32. Shri Mehta submits that when SLC in its meeting dated 4th
May 2018 had decided to get a report from IPIRTI, there was no occasion
for it to review its decision in its subsequent meeting dated 7th September
2018. He submits that the Senior Officer of the Forest Department of
the rank of Chief Conservator of Forest, Kanpur Division, Kanpur
recommended that the report from IPIRTI should be obtained before
deciding to issue the new licenses. It is submitted that the letters of the
said officer dated 11th September 2019 and 20th April 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".
34. The learned Senior Counsel submits that vide Notification dated
20th July 2012, the State of Uttar Pradesh had notified 7 species of trees
in the prohibited category. However, vide another Notification dated 31st
October 2017, the said trees were taken out of the prohibited category.
The learned NGT had set aside the said Notification of 2017 by order
dated 11th September 2018. It is submitted that the said order of the
learned NGT has been accepted by the State of Uttar Pradesh and a
fresh notification has been issued on 7th January 2020, again bringing the
said trees in the prohibited category. The learned Senior Counsel submits
that while assessing the availability of timber, the trees under the said
prohibited category have also been taken into consideration. He submits
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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.
36. The learned Senior Counsel further submits that FSI, while
conducting the survey, has not taken into consideration the rotation period
and, therefore, the survey is erroneous on the said count also. Learned
Senior Counsel, in support of his submissions, relies on the judgment of
this Court in the cases of Common Cause vs. Union of India and
others1, Mantri Techzone Private Limited vs. Forword Foundation
and others2, Municipal Corporation of Greater Mumbai vs. Ankita
Sinha and Others3and Pragnesh Shah vs. Dr. Arun Kumar Sharma
and others4.
37. Shri Dhruv Mehta, relying on the judgment of this Court in the
case of Ankita Sinha and Others (supra), submits that this Court itself
has considered the learned NGT to be a special Tribunal and held that it
will even have jurisdiction to take suo motu cognizance of the
environmental issues. He, therefore, submits that the arguments made
on behalf of the appellants with regard to locus are without substance.
38. Shri Vikas Singh, learned Senior Counsel, in rejoinder, submits
that the only distinction between the prohibited trees and non-prohibited
trees is that the non-prohibited trees can be felled without permission,
whereas prohibited trees can be felled only in certain circumstances and
only after the requisite permission is granted. He submits that the perusal
of the FSI survey would reveal that even after the timber requirement
for 1215 new units is taken into count, the State, still, will have 26.36
lakh cubic meters in reserve. He submits that if the new WBIs are
permitted, it would result in more farmers going in for agro forestry in
the State, which, in turn, will increase the forest cover. It is submitted
that said 1215 units are likely to give employment to around 80000 people.
Learned Senior Counsel, therefore, submits that the impugned orders
deserve to be quashed and set aside.
1(2017) 9 SCC 499
2 (2019) 18 SCC 494
3 2021 SCC OnLine SC 897
4 2022 SCC OnLine SC 79
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EARLIER ORDERS OF THIS COURT
39. For appreciating the rival submissions, it will be apposite to
refer to certain orders passed by this Court.
40. This Court in the case of T.N. Godavarman (supra) passed
an order on 12th December 1996. The relevant part thereof is as under:
"6. Each State Government should within two months, file a report
regarding -
(i)
the number of saw mills, veneer and plywood mills
actually operating within the State, with particulars
of their real ownership;
(ii)
the licenced and actual capacity of these mills for
stock and sawing;
(iii)
their proximity to the nearest forest;
(iv)
their source of timber.
7. Each State Government should constitute within one month,
an Expert Committee to assess:
(i)
the sustainable capacity of the forests of the State
qua saw mills and timber based industry;
(ii)
The number of existing saw mills which can safely
be sustained in the State;
(iii)
The optimum distance from the forest, qua that State,
at which the saw mill should be located."
41. Vide subsequent order dated 4th March 19975, this Court
directed thus:
"6. All unlicensed saw mills, veneer and plywood industries in the
State of Maharashtra and the State of Uttar Pradesh are to be
closed forthwith and the State Government would not remove or
relax the condition for grant of permission/licence for the opening
of any such saw mill, veneer and plywood industry and it shall
also not grant any fresh permission/licence for this purpose. The
Chief Secretary of the State will ensure strict compliance of this
direction and file a compliance report within two weeks."
5 (1997) 3 SCC 312
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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:
"44. No State or Union Territory shall permit any unlicensed
sawmills, veneer, plywood industry to operate and they are directed
to close all such unlicensed unit forthwith. No State Government
or Union Territory will permit the opening of any sawmills, veneer
or plywood industry without prior permission of the Central
Empowered Committee. The Chief Secretary of each State will
ensure strict compliance with this direction. There shall also be
no relaxation of rules with regard to the grant of licence without
previous concurrence of the Central Empowered Committee.
45. It shall be open to apply to this Court for relaxation and or
appropriate modification or orders qua plantations or grant of
licences."
44. Vide order dated 1st September 2006, this Court allowed
licenses to be issued to the closed sawmills, Veneer and Plywood units
as per availability of timber and eligibility and seniority as per CEC
recommendation.
45. In pursuance of the orders passed by this Court, SLC was
constituted by the State of Uttar Pradesh for verification and compilation
of information about closed WBIs.
46. The FSI conducted its assessment and assessed the annual
availability of wood from TOF in the State of Uttar Pradesh at 55.61
lakh cubic meters vide report dated 3rd April 2007.
47. On the basis of the report of the FSI, the SLC assessed the
annual availability of timber for WBIs from TOF at 53.01 lakh cubic
meters. CEC further reduced the same to 43.70 lakh cubic meters.
However, it added 2.00 lakh cubic meters per year as timber available
from government forests, and, therefore, assessed the annual availability
of timber at 45.70 lakh cubic meters.
48. It is to be seen that in its report itself, the CEC included 17.77
lakh cubic meters of timber from the prohibited species. This Court
6 (2008) 16 SCC 337
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considered the report of CEC and passed the following order on 18th
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.
It has also assessed the units into four categories.
We accept the CEC's recommendations. The Saw Mills, Plywood
and Veneer Units may be permitted, on the basis of the
recommendations made by the CEC. Licences may be given by
the State Level Committees.
If there are any objections regarding grant of Iicences, the parties
would be at liberty to submit their applications before the CEC for
consideration."
49. It could thus be seen that in 2007 itself, this Court had accepted
the recommendations of the CEC wherein the CEC had computed the
total availability of timber and had also taken into consideration the
availability of timber from the prohibited category.
50. Vide order dated 29th February 2008, this court considered
the issue regarding the manufacturing of Medium Density Fiber board
(MDF) and Particle board in the States of Punjab, Uttarakhand and
Karnataka. While considering the same, this Court passed the following
order:
"The matter relates to the manufacturing of Medium Density Fiber
board (MDF) and Particle Board in the States of Punjab,
Uttarakhand and Karnataka. CEC has filed its report and stated
that there is a growing trend to use more and more MDF / Particle
Board in place of industrial timber. The MDF/Particle Board help
in reducing the pressure on natural forests. The lops and tops and
small wood available from the plantations of eucalyptus, poplar,
etc. raised on the non-forest can be used by MDF/Particle Board
plants."
51. In view of the permissions granted by this Court, the licenses
were granted to the unlicensed sawmills which were closed on account
of the orders passed by this Court taking into consideration the availability
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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:
"(II) after meeting the requirement of the licensed wood based
industry, the units permitted by this Hon'ble Court and the units
whose category is yet to be finalised, the plywood/veneer units
falling in category IV may be considered for grant of license to
the extent of timber availability and strictly in the order of seniority,
subject to the one-time payment of Rs.9 lakhs per press in respect
of the veneer units and compliance of the other conditions that
have been stipulated. The one-time payment of penalty will be in
addition to the normal licence fee and the other charges, if any,
payable to the U.P. Forest Department.