Full Judgment Text
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PETITIONER:
T.N. GODAVARMAN THIRUMULPAD,ENVIRONMENT AWARENESS FORUM
Vs.
RESPONDENT:
UNION OF INDIA & ORS., STATE OF J & K & ORS.
DATE OF JUDGMENT: 15/04/1998
BENCH:
A.S. ANAND, B.N. KIRPAL
ACT:
HEADNOTE:
JUDGMENT:
WITH W.P. (C) No. 171/96
THE 15TH DAY OF JANUARY, 1998
Present:
Hon’ble the Chief Justice
Hon’ble Mr. Justice A.S. Anand
Hon’ble Mr. Justice B.N. Kirpal
Mr. Ashok Desai, Attorney General, Mr. A.K.Goel, Addl,
Advocate, General Mr. Harish N.Salve, Mr. N.N. Goswami, Mr.
Rajiv Doawan, Mr. Shanti Bhushan, Mr. Dipankar P.Gupta, Mr.
H.Nabakumar Singh, Mr. Prashant K.Goswami, Mr. Anil B.Diwan,
Mr. G.l.Sanghi, Mr. T.L.V.Iyer, Mr. Jayant Das, Mr. Tapas C.
Roy., Mr. P.K. Aggarwal, Sr. Advocates, Mr. U.U. Lalit, Ms.
Meenakshi Sakharande, Mr. A.D.N.Rao, Mr. P. Parmeswaran, Mr.
S.Wasim A. Qadri, Mr. Sushma Suri, Mr. U.Hazarika, Mr. S.R.
Hedge, Mr. Saikia, Mr. A.S. Bhasme, Mr. Zailre Angami, Mr.
C.K. Sasi, Mr. Kailash Vasdev, Mr. Gopal Singh, Mr. h. Wahi
Mr. S. Hazarika, Ms.Nelithono Rhetso, Mr, K.H. Nobin Singh,
Ms.S. Janani, Mr. Ranjan Mukherjee, Mr. Rajiv Mehta, Mr.
Anil Agarwalla, Mr. P.C.Sharma, Mr. Gujarmal, Mr. K.M.K.
Nair, Mr. M.L. Lahoty, Mr. Himanshu Shekhar, Mrs. Madhur
Dadlani, Mr. S.K. Agnihotri, Mr. Aruneshwar Gupta, Mr.
G.Prakash, Ms.Beena Prakash, Mr. R.K. Mehta, Mr. B.S.
Chahar, Mr. Ashok Mathur, Mr. Jasbir Malik, Mr. P.P.
Malhotra, Mr. K.R.Nagaraja, Mr. K.K.Tyagi, Ms. A.Subhashini,
Mr. R.B. Mishra, Mr. Kamlendra Mishra, Mr.H.K. Puri, Mr.
Ujjwal Banerjee, Mr. K.B.Rohtagi. Ms. Aparna Rohtagi Jain,
Mr. S.M. Jadhav, Mr. D.M. Nergolkar, Mr. R.S. Sodhi, Mr.
B.B. Singh, Mr. G.M.Kawoosa, Mr. A. Mariarputham, Ms. Aruna
Mathur, Mr. Rana Mukherjee, Ms. Sumita Mukherjee, Mr.
Goodwill Indeevar, Mr. Maheer Vyas, Mr. P.K. Nanohar, Mr.
D.N. Misra , Mr.Parag P. Tripathi, Mr. Vijay Panjwani, Mr.
D.N. Goburdhan, Ms. Pinky Anand, Mr. M.N. Shroff, Ms.
Shabnam Lone, Ms Purnima Bhat, Mr. R. Sasiprabhu, Mr. Manish
Garg, Mr. Anees Ahmad, Mr. P.H. Parekh, Mr. Sameer Parekh,
Mr. Zafar Shah, Ms. Rekha Palli, Ms. Indu Malhotra, Mr. S.K.
Bhattacharya, Mr. S.K. Dhingra, Mr.Ashok K. Srivastava, Mr.
Umesh Bhagwat, Mr. Sanjay R.Hegde, Advocates with them for
the appearing parties.
O R D E R
The following order of the Court was delivered:
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W I T H
WRIT PETITION (C) NOT. 171 OF 1996
Learned Attorney General submits that the perception of
the Ministry of Environment and Forests is as under:
1. It has been estimated by the HPC that about 1.20
lakhs cubic meters of illicitly felled seized timber,
belonging to the State Governments is lying in the forests
and depots for varying periods of time between 1 to 2 years
and is thereby getting degraded on account of decay and
rotting of the wood. It is necessary to dispose it off at
the earliest to minimise any further loss in the monetary
value. There is, in addition, considerable quantity of
timber claimed by the private industry and local people. In
view of the approaching monsoon season (April 98) all such
timber needs to be disposed off with urgency to save further
loss in quality, as also in value, albeit with proper checks
and balances.
2. Given the weak infrastructure in the North-Eastern
region, it does not seem feasible to transport such huge
quantities of timber for auction in markets outside the
region in a short time. Moreover, there would be uncertainty
of the response in timber markets far away from the source
of timber which has been subject to elements of degradation
in varying degrees. There is also the likelihood of local
resentment, in an otherwise sensitive area, if all such
material is removed from the region without processing and
value addition, which could be conceived as creating an
adverse effect on the region’s economy.
3. Even though the proliferation of wood-based
industries has been the main cause of degradation of forests
in the North-Eastern States, considering the extent of
forests (64% of the geographical area) and the dependence of
the local people on the forest resources in the region it is
neither feasible, nor desirable, to ban completely either
the timer trade or running of the wood based industries.
However, their numbers and capacities need to be regulated
qua the sustainable availability of forest produce and they
are also required to be relocated in specified industrial
zones. Moreover, the industrial requirements have to be
subordinated to the maintenance of environment and ecology
as well as bonafide local needs.
4. There shall be no fresh fellings in the forests
belonging to the Government, District and Regional Councils
till the disposal of their existing stocks of legal and
illegal timber.
5. In view of the multidimensional issues impinging
upon forest protection, foolproof institutional arrangements
need to be put in place, and made functional under the
strict supervision of the North-East Council (NEC).
Technical backstopping in the forestry matter will be
provided by MoEF by opening a separate cell in the Ministry
under an officer of the rank of CCF and starting a satellite
office of the Forest Survey of India at Shillong.
We appreciate the perception of MoEF as reflected by
the learned Attorney General.
We have heard the amicus curiae, the learned Attorney
General and learned counsel for North-Eastern States. In
view of the report of the High Power Committee and taking
into account the factors which require an order to be made
by the Court for disposal of the felled timber and ancillary
matters which are lying in the North-Eastern States, we
consider it appropriated to make the following order:-
1. Disposal o timber shall commence only after the
concerned Principal Chief Conservator of Forests irrevocably
certifies that inventorisation of all felled timber in the
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State has been completed.
2. As a first measure all inventorised timber,
including seized timber lying in the forests should be
immediately transported to specified forest depots.
3. All illegal/illicit timber found in possession of an
offender or abandoned in the forest shall be confiscated to
the State Government and shall be disposed off in accordance
with the procedure to be adopted for disposal of Government
timber.
4. Out of the seized timber, logs found suitable for
manufacture of veneer and plywood shall be processed by the
State Governments within their own factories and by hiring
such facilities. The finished product can be marketed
freely.
5. The remaining timber belonging to Government and
District Councils shall be first offered for sale to
Government Departments for their bonafide official use and
the rest shall be sold in public auction or through sealed
tenders after fixing floor price by an Expert Committee with
representative from the MOEF. Private timber owners whose
stocks have been cleared by HPC shall have the option of
selling the timber either in the auctions organised by the
State Forest Departments/Forest Development Corporations or
directly.
6. The State Governments shall formally notify
industrial estates for locating the wood based industrial
units in consultation with the Ministry of Environment and
Forests.
7. Timber as per inventory cleared by HPC may be
allowed to
(a) be converted/utilised if the unit is located
within the notified industrial estate. As the relocation in
proposed industrial estates may take some time, existing
units with only legal stocks may convert this timber, as one
time exception, notwithstanding anything contained in para
12 hereunder, till such stocks last subject to the maximum
period as per the norms prescribed by the High Power
Committee (vide their III report) or six months whichever is
less. Any stock remaining thereafter shall vest in the state
Government. However, fresh trees/Timber will be allotted to
these units only when they start functioning within the
designated industrial estates. The territorial Deputy
Conservator of Forests/Divisional Forest Officer shall be
responsible for ensuring that such units process the legal
stocks only and will closely monitor the various transit
permits (inward and outward) and maintenance of the
prescribed records. All such records shall be countersigned
(with date) by an officer not less than the rank of an
Assistant Conservator of Forests.
(b) allowed to be sold to other units which are located
in these industrial estates subject to the condition that
such transactions are routed through an authority
notified/constituted by the Principal Chief Conservator of
Forests.
(c) The state Governments shall ensure disposal of
illegal timber before permitting the conversion/disposal of
legal/authorised timber available with the wood based
industries.
8. Transportation of auctioned timber (as well as legal
timber) including sawn timber outside the North-Eastern
Region shall only be done through railways under the strict
supervision of the Forest Department. The Railway Board
shall give Priority for Providing rakes/wagons for such
transportation.
9. Modalities for transportation of timber/timber
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products and alternative modes in case of difficulties in
transportation by Railways, will be worked out by the State
Governments in concurrence of the Ministry of Environment
and Forests.
10. Existing inventorised stock of timber originating
from plantations in private and community holdings in the
States of Meghalaya, Mizoram, Tripura, Manipur and Nagaland
may be disposed of by their owners under the relevant State
laws and rules. In States where such laws and rules do not
exist, the necessary laws and rules may be framed within six
months.
Pricing of Timber
11. The state Governments shall ensure that
timber/forest produce is supplied to industries including
Government Undertakings, at full market rate. The existing
royalty shall be reviewed and revised upwardly by a
committee constituted under the Chairmanship of Principal
Chief Conservator or Forests with representatives from the
concerned Departments and shall also include a
representative of ministry of Environment and forest. The
prices of timber for which royalty has not been realized in
full shall also be reviewed by this committee and the
concerned industry shall be required to pay the revised
price or the royalty (including surcharge, fee etc.,)
whichever is higher after deducting the part royalty already
paid.
Licensing
12. Licenses given to all wood based industries shall
stand suspended.
13. Wood based industries which have been cleared by
the High Power Committee without any penalty shall have the
option to shift to industrial estates which shall be
identified by the states within 45 days and developed within
six months thereafter.
14. Units which have been penalised because they were
found to exceed normal recovery norms, but were within 15%
of the said norms, will have a right to approach the High
Power Committee on or before 9th February 1998. The High
Power Committee shall examine all relevant material, in
particular the income tax and excise records for the
preceeding three years. The High Power Committee shall
dispose of all such applications within 45 days thereafter
and such mills may be granted licence if the High Power
Committee finds that it is not against public interest so to
do.
15. nits which have not furnished details/information
to the High Power Committee so far or which have not been
cleared by the High Power Committee, shall not be granted
any licence and the stock in their custody if any, shall be
confiscated to the state Government. In case of leased mills
belonging to corporations/trusts/cooperative societies
owned/controlled/managed by the State Government and where
the lessees have been penalised by the High Power Committee,
the leases shall stand revoked. Such mills shall, however,
be eligible for relicensing subject to the condition that
these mills are not leased out in future except to a entity
fully owned by the Government.
16. Units who do not want to shift to the designated
industrial estates shall be allowed to wind up as per law.
17. Henceforth, licenses of units shall be renewed
annually only in those cases where no irregularity is
detected.
18. There shall be a complete moratorium on the issue
of new licenses by the State Governments or any other
authority for the establishment of any new wood based
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industry for the next five years after which the situation
shall be reviewed with the concurrence of Ministry of
Environment and Forests.
19. Number of wood based industries shall be determined
strictly within the quantity of timber which can be felled
annually on sustainable basis as determined by the approved
working plans from time to time . If t is found that units
after relocation in industrial estate have excess capacity
then their capacities shall be reduced pro rate to remain
within the sustainable levels.
Forest Protection
20. An action plan shall be prepared by the Principal
Chief Conservator of Forests/Chief Forest Officer for
intensive patrolling and other necessary protective measures
to be undertaken in identified vulnerable areas and
quarterly report shall be submitted to the Central
Government for approval. The approved plan together with the
modifications, if any, shall be acted upon.
21. To ensure protection of the forest wealth the
forest officers in the North Eastern States may be empowered
with authority to investigate, prosecute and confiscate on
the lines of the powers conferred on the forest officers in
many other States in the country.
22. The State Government shall be responsible for
providing all facilities including security and police force
to strictly enforce forest protection measures to stop
illicit felling, removal and utilisation of such timber. The
Chief Secretary shall review the various matters concerning
forest protection and development in his State at least once
every six months with senior forest officers upto the rank
of Conservator of Forests. Regional Chief Conservator of
Forests of MoEF shall be invited to all such meetings.
Scientific Management of Forest
23.Working Plans for all forest division shall be
prepared by the Sate Governments and got approved from the
Government of India. Forest working shall be carried out
strictly in accordance with the approved prescriptions of
the working plans. The working plans should be prepared
within a period of two years. During the interregnum the
forests shall be worked according to an annual felling
programme approved by the MoEF which shall be incorporated
in the concerned working plan. In case a working plan is not
prepared within this time frame, future fellings will remain
suspended till the regular working plan is prepared and got
approved.
24. The forests under the District, Regional and
Village Councils shall be worked in accordance with working
schemes which shall specify both the programme for
regeneration and harvesting and whose period shall not be
less than 5 years.
25. The maximum permissible annual yield in the ad
interim measures suggested above, shall not exceed the
annual harvestable yield determined by Ministry of
Environment and Forests. The plantation schemes raised on
private and community holdings shall be excluded from these
requirements but shall be regulated under respective State
rules and regulations.
26. The States shall identify ecologically sensitive
areas in consultation with leading institutions like the
India Council of Forestry Research and Education, Wildlife
Institute of India, North Eastern Hill University, North
Eastern Regional Institute of Science and Technology,
leading NGOs. etc., and ensure that such areas are totally
excluded from any kind of exploitation. The minimum extent
of such areas shall be 10% of the total forest area in the
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State.
Action against officials
27. The State Government shall identify within 45 days
all those forest divisions where significant illegal
fellings have taken place and initiate disciplinary/criminal
proceedings against those found responsible. The first
action taken report (ATR) in this regard shall be submitted
to the Central Government within three months which shall be
followed by quarterly reports (QRs.) till the culmination of
the matter.
General
28. Timber extraction in forests irrespective of
ownership, except in private plantations, shall be carried
out by a State agency only. The States shall endeavor to
adopt pattern obtaining in the State of Himachal Pradesh as
described in para 2.5.3 of the Rajamani committee Report.
If there be any local laws/customs relating to the
forest in any State. the concerned State Government may
apply to this Court for the needed modification, if any,
with alternative proposal.
29. The penalties levied on the wood based industries
as ordered by the High Power Committee shall constitute the
revolving fund to meet the expenses involved in collection
and transportation of seized illegal timber. These can be
augmented by utilising the funds generated by the initial
sales of illegal timber already available in the forest
depots.
30. Each State shall constitute a State level Expert
Committee for matters concerning the preparation of working
plans, their implementation, development of industrial
estates, shifting of industrial units to these estates,
rules and regulations regarding the grant and renewal of
licenses to wood based industry and other ancillary matters,
under the chairmanship of principal Chief Conservator of
forests and with a nominee of Ministry of Environment and
forests as one of its members. Any decision of this
committee which is not acceptable to the State Government
shall be referred to the Central Government.
31. The existing permit system in Arunachal Pradesh
shall stand abolished. The State Government may provide
financial assistance in case or kind in the form of timber
only for the bonafide use of the local tribals alone. Such
concessional timber shall not be bartered or sold. Felling
of trees for such purpose shall be carried out only by
Government agency.
32. The total sale proceeds from the sale of seized
timber, as well as timber products manufactured and disposed
by the State Government (vide para 4) and penalties would be
credited to the State Revenues. Out of this, the State shall
utilise one half of the amount for as assistance to the
tribals. population and as assistance to the tribals. The
remaining one half of the total sale proceeds, after
deduction of the expenses therefrom, would go to the State
coffers for other developmental activities in the State.
33. The States shall ensure that sufficient budgetary
provisions are made for the preservation of biodiversity and
protection of wildlife.
34. To ensure that timber/forest produce smuggled
across the border may not be used as a cover for trade in
illegal timber, it is directed that all such timber seized
by Customs/Border security Force should not be redeemed in
favour of individuals who are smuggling it but should be
confiscated and handed over to the concerned State Forest
Department along with offenders, vehicles, tools and
implements for prosecution under the relevant acts.
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35. For the proper and effective implementation of
these order, Ministry of Environment and Forests will have
the liberty to issue suitable directions consistent with
this order.
36. Action taken report be filed by each State
Government and the Ministry of Environment and Forests every
two months.
37. Liberty to apply for modification/clarification in
case of need.
(NOTE: In this order the term "State Government" would
include District council also except where the context
implies otherwise.)