Citation Codes

Equivalent Citations

citation codes

Case Number

IA No. 680/2019 / DELHI

Judges

Mr. Justice Adarsh Kumar Goel
Mr. Justice Sonam Phintso Wangdi
Dr. S.S. Garbayal
Dr. Nagin Nanda

Acts

Section 21 and 23 of the Uttar Pradesh Protection of Trees Act, 1976 read with Section 21 of the Uttar Pradesh General Clauses Act, 1904.
U.P. Protection of Trees Act, 1976 (as Amended).

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Smart Summary

National Green Tribunal — Principal Bench, New Delhi: Summary of Order dated 18.02.2020

Factual and Procedural Background

This consolidated proceeding arises from Original Application No. 335/2019 with connected Original Applications No. 313/2019, 396/2019 and others (including applications by Samvit Foundation, Uday Education & Welfare Trust and U.P. Timber Association versus State of Uttar Pradesh & others). The core matter for consideration was the validity of the State of Uttar Pradesh's proposal and notice dated 01.03.2019 to grant licences for a large number of new wood-based industries (WBIs) / saw mills (approximately 1,350 units), without a conclusive determination of whether sufficient timber/raw material exists to sustain them, in light of prior judgments of the Hon'ble Supreme Court and this Tribunal's earlier orders.

Procedurally, the Tribunal had issued earlier directions: order dated 11.09.2018 (quashing an exemption notification in a related matter), order dated 28.03.2019 (seeking a joint Committee report), order dated 06.08.2019 (which the State sought to modify), and order dated 01.10.2019 (directing maintenance of status quo). An order of 18.12.2019 required additional data and asked for the Ministry of Environment, Forest & Climate Change (MoEF&CC) opinion. In compliance, the State filed an affidavit dated 22.01.2020 (Divisional Director of Forest, Hathras) providing district/species-level summaries and capacity figures; the State later filed an additional written note (18.02.2020) referring to ISFR/FSI data (ISFR 2019).

Legal Issues Presented

Whether the proposal / notice dated 01.03.2019 to grant licences for new wood-based industries / saw mills in Uttar Pradesh is valid where the State has not conclusively determined the actual availability of timber / raw material to sustain such industries, in light of Supreme Court judgments (including T.N. Godavarman and related authorities) requiring protection of forests and regulation of felling.
Whether provisional licences already granted pursuant to the notice dated 01.03.2019 can continue pending further assessment of timber availability.
Whether the State's assessments and data (including FSI/ISFR-based estimates and the State's affidavit figures) are sufficiently reliable for permitting the establishment of additional WBIs or whether a more detailed inventory (district-wise, species-wise, diameter-class-wise) is necessary before any further licensing.

Arguments of the Parties

State of Uttar Pradesh — Contentions and Evidence

The State asserted, through affidavits and notes, that there is surplus timber availability in Uttar Pradesh and that new WBIs can be sustained. It relied on FSI/ISFR data (including a figure of total potential timber availability of 80.30 lakh cubic meters per year, comprising approximately 77.74 lakh cubic meters from Trees Outside Forests (TOF) and 2.56 lakh cubic meters from Government Forests).
The State relied on an exemption notification dated 31.12.2000 (and distinguished it from a later notification of 31.10.2017 that was quashed) to support the use of certain farm-grown species (principally Eucalyptus and Poplar) as legitimate raw material for WBIs.
The State provided a break-up of proposed additional units (e.g., 615 sawmills, 344 plywood (press), 89 veneer, etc.) and claimed that existing around 5,000 sawmills have sufficient legitimate supply and that an additional 1,215 units could be sustained (632 of which had already established units by February 2019).
Economic and social benefits were emphasized: market development, employment (state projected ~80,000 jobs), investment (~Rs. 3,000 crore), turnover (~Rs. 1,200 crore), reduced imports and transportation pollution, and encouragement of tree-planting by farmers.
Regulatory safeguards were cited: felling on private/farmer land is regulated under the Uttar Pradesh Protection of Trees Act, 1976 (as amended); the State issued a notification dated 07.01.2020 prohibiting felling of 29 specified species and requiring plantation of 10 trees in place of each tree felled with a security amount deposited at time of permission.
The State contended that Eucalyptus and Poplar together constituted 43.02 lakh cubic meters per year (about 80% of timber requirement for WBIs) and that large quantities of timber are presently exported from U.P. to other States, indicating surplus production.

Applicant(s) / Environmental Applicant — Contentions and Evidence

The applicant(s) challenged the reliability and methodology of the State's statistics, arguing the State's capacity figures are based on erroneous assumptions (e.g., not accounting for variation in machinery Horse Power (HP) across mills) and inconsistent with the Central Empowered Committee (CEC) reports submitted to the Supreme Court (reports dated 18.04.2007 and 08.12.2009 / filed 15.12.2009).
They argued that timber availability for some categories (e.g., plywood units) had been wrongly taken as nil by the State, contrary to CEC observations.
The applicant asserted that the State included trees which cannot be felled (i.e., prohibited categories) in its totals and provided its own tabulation of species-wise totals (repeating numbers from the State tables but emphasizing Eucalyptus and Poplar totals and asserting total availability of Eucalyptus + Poplar of 43,02,465 cubic meters per year in one table; elsewhere they relied on a PCCF letter (07.12.2015) to support a different available figure reported as 65,540 cubic meters).
They highlighted that recorded forest area (RFA) in U.P. is only 16,592 sq. km (6.88% of geographical area) and expressed concern that further WBIs may adversely affect existing forests.
The applicant also contended that with installation of advanced machinery existing units' consumption could rise substantially (claimed up to fourfold), further undermining the State's availability estimates.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of H.P. v. Ganesh Wood Products, (1995) 6 SCC 363	The opinion references this authority as one of the Supreme Court judgments relevant to regulation of wood-based activities (context: need to ensure lawful sourcing and compliance with judicial restrictions on felling and forest use).	The Tribunal relied on the body of Supreme Court authority including this case to underscore that WBIs/saw mills can be allowed only after ensuring timber/raw material availability and legitimate sources, and to caution against permitting operations that may lead to illegal cutting.
T.N. Godavarman Thirumulpad v. Union of India, (1997) 2 SCC 267	Established extensive jurisprudence on forest protection, restrictions on tree felling and the need for regulatory oversight; cited generally for the proposition that industries requiring forest produce must comply with principles established by the Supreme Court.	The Tribunal treated the Supreme Court's directions in the T.N. Godavarman line of cases as binding context: the State could not allow establishments without ensuring legitimate sources; the Tribunal noted earlier orders and judgments and invoked the precautionary approach arising from that jurisprudence to require proper inventory before licensing.
T.N. Godavarman (2006) 1 SCC 1	Part of the continuing set of Supreme Court decisions in the Godavarman matter concerning forest governance and restrictions on felling.	Cited alongside other Godavarman decisions as authority supporting the Tribunal's requirement that timber availability and lawful sourcing must be ensured prior to granting licences.
T.N. Godavarman (2009) 16 SCC 398	Another pronouncement in the Godavarman series relevant to forest protection and restrictions on exploitation.	Used by the Tribunal as part of the jurisprudential basis for refusing to permit expansion based on uncertain timber availability and to justify the need for accurate inventory and adherence to legal restrictions.
T.N. Godavarman (2012) 12 SCC 297	Later authority in the same line; generally cited for the continuing legal standards on forest protection, restrictions and required safeguards in relation to tree felling and forest use.	The Tribunal invoked the Godavarman decisions collectively (including this citation) to emphasize that allowing WBIs without appropriate determination of sustainable raw material availability would be contrary to Supreme Court guidance and could foster illegal cutting; this supported quashing of the State notice and licences.

Court's Reasoning and Analysis

The Tribunal proceeded through a sequence of factual and legal evaluation based on the material on record:

The Tribunal reiterated the settled legal position (as reflected in Supreme Court authority) that WBIs/saw mills may be allowed only after ensuring real and sustainable availability of timber/raw material — not on assumption.
It noted the State's primary evidentiary basis: FSI/ISFR-derived potential figures (total potential availability stated by the State as 80.30 lakh cubic meters per year, of which 77.74 lakh cubic meters are from Trees Outside Forests (TOF)). The State's figures included substantial quantities of Eucalyptus (c. 28 lakh cu.m.) and Poplar (c. 15 lakh cu.m.).
The Tribunal analyzed the nature of FSI/ISFR estimates: they represent potential production based on inventories and growth models (Von Mantel formula), not actual annual production. The Tribunal observed that such figures are presumptive and may overstate immediate availability because they assume harvest according to rotation and do not exclude timber not harvestable in the short term.
The Court highlighted statistical uncertainty: standard error in FSI-type surveys is substantial (as stated in the opinion: national ~5%, State ~15%, district ~25–30%; species-wise error larger). The Tribunal found that the State had not accounted for such errors.
Using the available data and recognizing statistical and practical limitations, the Tribunal concluded that the State's assertion of 43 lakh cu.m. of Eucalyptus + Poplar actually available was optimistic. The Tribunal estimated (on the basis of the data and the recognized margins of error) that actual available Eucalyptus + Poplar would be around 32 lakh cu.m., with other species contributing 10–12 lakh cu.m., yielding a realistic total of about 40–45 lakh cu.m. per year — substantially below the State's claimed 80.30 lakh cu.m.
The Tribunal compared realistic availability to existing consumption/capacity: the State reported c. 6,686 existing saw mills/WBIs with an aggregate capacity of c. 41.5 lakh cu.m. per year. Given the Tribunal's adjusted availability estimate (40–45 lakh cu.m.), there would be marginal or negligible additional timber actually available for new industries. The Tribunal noted that the State-level committee's allotment of 18 lakh cu.m. to new WBIs was therefore "absurdly unrealistic."
The Tribunal raised policy and legal concerns: permitting more WBIs beyond carrying capacity would contravene principles of sustainable development, the precautionary principle and the public trust doctrine. It could incentivize illegal cutting and clandestine supply if legal sources were insufficient.
Accordingly, the Tribunal determined that before any further licensing or implementation, the State must produce a detailed, credible inventory — district-wise, species-wise and diameter-class-wise — and species-wise consumption data for existing WBIs. The Tribunal suggested that FSI could be assigned to carry out such a credible assessment, as FSI has undertaken similar studies elsewhere.

Holding and Implications

Core Ruling:

The notice dated 01.03.2019 issued by the State of Uttar Pradesh for establishing new wood-based industries / saw mills and all provisional licences granted pursuant to that notice are quashed.

Direct consequences and practical implications (as stated in the opinion):

All the connected applications are disposed of in terms of the order.
Any provisional licences issued pursuant to the 01.03.2019 notice stand quashed and cannot continue where there is no availability of raw material to sustain such licences, consistent with the Supreme Court's holdings referenced by the Tribunal.
The Tribunal directed that before any further decision on permitting additional WBIs, the State must undertake (or commission through FSI) a credible species-wise, district-wise and diameter-class-wise inventory and provide species-wise consumption data of all WBIs to ascertain actual sustainable availability of timber.

The order did not purport to set out a novel legal precedent beyond applying established Supreme Court principles (e.g., T.N. Godavarman line) and environmental law principles (precautionary principle, sustainable development, public trust doctrine) to the facts and data deficiencies in this case. The immediate effect is to prevent expansion under the challenged notice and to require a credible factual baseline before any further licensing.

Panel: Hon'ble Mr. Justice Adarsh Kumar Goel (Chairperson), Hon'ble Mr. Justice S.P. Wangdi (Judicial Member), Dr. Satyawan Singh Garbyal (Expert Member), Dr. Nagin Nanda (Expert Member). Date of final order: 18.02.2020.

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UDAY EDUCATION & WELFARE TRUST v. STATE OF U.P.

Item Nos. 02 to 04 Court No. 1

BEFORE THE NATIONAL GREEN TRIBUNAL

PRINCIPAL BENCH, NEW DELHI

Original Application No. 335/2019

WITH

Original Application No. 313/2019 (I.A. No. 172/2019 & I.A. No. 616/2019, I.A. No. 676/2019, I.A. No. 680/2019, I.A. No. 695/2019, I.A. No. 732/2019, I.A. No. 755/2019, I.A. No. 756/2019, I.A. No. 748/2019 & I.A. No. 757/2019)

WITH

Original Application No. 396/2019 Samvit Foundation Applicant(s) Versus

State of U. P. & Ors. Respondent(s)

WITH

Uday Education & Welfare Trust Applicant(s) Versus

State of U. P. & Ors. Respondent(s)

WITH

U. P. Timber Association Applicant(s) Versus

State of U. P. & Ors. Respondent(s) Date of hearing: 13.02.2020 Date of uploading on the website: 18.02.2020

CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON HON'BLE MR. JUSTICE S.P WANGDI, JUDICIAL MEMBER HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER HON'BLE DR. NAGIN NANDA, EXPERT MEMBER

ORDER

1. This order is in continuation of order dated 18.12.2019. The issue for consideration is validity of proposal to establish more wood based industries/saw mills in the State of Uttar Pradesh without correctly determining availability of timber to sustain the same as

required in terms of judgments of Hon'ble Supreme Court inter-alia in State of H.P. v. Ganesh Wood Products, (1995) 6 SCC 363, T.N. Godavarman v. U.O.I., (1997) 2 SCC 267, (2006) 1 SCC 1, (2009) 16 SCC 398 and (2012) 12 SCC 297.

2. Grievance of the applicant is that vide notice dated 01.03.2019, the State proposes to give license for 1350 new units which is not viable in view of limited wood available in the State. It is also submitted that the State has ignored the order of this Tribunal dated 11.09.2018 in O.A. No. 805/2017, Kshitij Agnihotri v. Ministry of Environment, Forest and Climate Change & Ors. quashing exemption to certain categories of forest species from the restrictions on cutting of the forest. In connected matter being O.A. No. 313/2019, grant of provisional licenses for establishment of about 1350 units by wrongly assuming availability of the wood as per FSI report dated 08.01.2018 has also been specifically challenged. Both the matters have been heard together and are being disposed of simultaneously.

3. Vide order dated 28.03.2019 in O.A. No. 313/2019, a report was sought from a joint Committee comprising of Principal Secretary (Forest), U.P. and Principal Chief Conservator of Forest, U.P. The matter was considered further on 06.08.2019 in the light of the report dated 03.08.2019 which was to the effect that the wood was available. The Tribunal directed that the notice dated 01.03.2019 be reviewed. Again, on 01.10.2019, the Tribunal directed that status quo be maintained with regard to establishment of wood based industries.

4. Wood availability was claimed in the report of the State of UP in view of exemption notification dated 31.12.2000. It was submitted that the exempted species principally are Poplar, Eucalyptus etc. and it was based on this assumption that the new wood based industries are proposed to be allowed. This Tribunal observed that notice dated 01.03.2019 for establishing new wood based industries, without ensuring legitimate sources of availability of wood, may result in clandestine supply of wood by illegal cutting of trees, in violation of judgments of the Hon'ble Supreme Court and order of this Tribunal dated 11.09.2018, supra.

5. The matter was then considered on 18.12.2019 in the light of application filed by the State of UP for modification of order dated 06.08.2019. It was observed:

"5. Though no further report has been filed, the State of U.P. has filed I.A. No. 732/2019 for modification of order dated 06.08.2019 by submitting that the exemption notification dated 31.12.2000 is not in conflict with the restrictions in the judgment of the Hon'ble Supreme Court in T.N. Godavarman v. U.O.I., supra and the said notification is qualitatively different from the notification dated 31.10.2017 which was quashed by this Tribunal. It is submitted that sufficient wood is available to make new wood industries viable based on the data available with the State. New wood industries will utilize Poplar and Eucalyptus trees excluding possibility of illegal cutting of trees.

6. On our query, learned ASG - Ms. Pinky Anand has stated that as at present 5000 saw mills are in existence in the State of U.P. and they have sufficient supply of wood from legitimate sources. Additional 1215 units can also be sustained. Break up is as follows:

Sr. No.	Type of WBI	Number of Units
1.	Sawm ill	615
2.	Veneer	89
3.	Plywoo d (Press)	344
4.	Veneer & Plywood	75
5.	Standa lone Chipper	83
6.	MDF/H DF	0

7.	Particl e Board	3
8.	MDF/H DP + Particle Board	6

7. To consider the above, we find it necessary to require following data:

(i) District wise data of the existing saw mills/Wood Based Industries with their number, capacity and availability of wood species wise for the said saw mills for the period of three years.

(ii) Justification for new saw mills/Wood Based Industries in terms of availability of demand and supply of timber - species wise. This data be supplied for the districts where such new saw mills/Wood Based Industries are proposed to be set up along with the note on carrying capacity of such areas to sustain new saw mills/Wood Based Industries.

(iii) Mechanism to ensure that no trees are cut from the government forests or private trees of categories which are not exempted.

8. We are further of the view that MoEF&CC may also examine the issue and give its opinion in the matter for consideration by this Tribunal. The applicant may furnish a set of papers to the MoEF &CC forthwith."

6. Before considering the matter further, we may note that apart from the application filed by the State of UP, seeking modification of order dated 06.08.2019 requiring the State of UP to review the notice dated 01.03.2019 and order dated 01.10.2019 (directing maintenance of status quo on the issue) for establishing 1350 new wood based industries, applications for impleadment and to seek modification of orders dated 06.08.2019 and 01.10.2019 have been filed by many wood based industries to whom provisional licenses have been given. Without formally passing an order on the said applications, we permitted counsel for the said applicants to make their submissions. Their contentions stand covered by the stand of the State since the issue is in rem relating to general decision of the State which is applicable uniformly to all the proposed/provisional licensees. Thus, it is not necessary to refer to

the contents of individual applications. No separate arguments have been advanced by the counsel for the said applicants inspite of opportunity being given. All the said applications will accordingly stand disposed of in terms of this order. Any provisional licenses will stand governed by the present final order. Such licenses cannot continue once it is held that there is no availability of raw material timber to sustain such licenses, as held by the Hon'ble Supreme Court.

7. In pursuance of order dated 18.12.2019, an affidavit dated 22.01.2020 has been filed by the Divisional Director of Forest, Hathras, on behalf of the State of UP, giving data of the existing saw mills/wood based industries with their number, capacity and availability of wood species wise for the said saw mills for the period of three years as follows:

"Summary of number of existing saw mills / WBIs for 2017, 2018 &

2019

" Year Saw Only Plywood Veneer Standal MDF/ Particle MDF/HDF Total mill veneer (only and one HDF Board +

Press) Press Chipper Particle

Board

2017 6161 209 59 178 0 0 0 0 6607

2018 6167 221 62 186 0 0 0 0 6636

2019 6208 228 63 187 0 0 0 0 6686 ^"

"Summary of capacity of existing saw mills / WBIs for 2017, 2018 & 2019 vis-à-vis availability of timber

" Year Saw Only Plywood Veneer Standal MDF/ Particle MDF/ Total Timber mill veneer (only and one HDF Board HDF + availability Press) Press Chipper Particle (In lac

Board cubic

meters per

year)

2017 33.03 3.13 0 4.66 0 0 0 0 40.82 80.30

2018 33.04 3.31 0 4.86 0 0 0 0 41.22 80.30

2019 33.15 3.42 0 4.98 0 0 0 0 41.56 80.30 ^"

8. The total availability of timber in the State, wood species wise and Agro Climatic Zone wise for Trees Outside Forest (TOF) as per assessment of FSI of 2018, for the said saw mills and other wood based industries, has been indicated in the following table:

Agro Climatic Zone Wise Annual Potential Production of Timber (in cubic meters)

" S. No. Species Name Mid Central Plain Eastern Plain North Tarai Western Plain Bundelkhand Central Vindyan Total Western Eastern Plain Zone Western Semi

Plain Arid Plain

(1.Agra (1.Auraiya (1.Amethi (1.Balrampur (1.Bareilly

2. Aligrah 2. Allahabad 2. Azamgarh 2. Basti (1.Baharaich (1.Baghpat (1.Banda 2. Badaun (1.Mirzapur

3. Etah (Prayagraj) 3. Ambedkar 3. Deoria 2. Bijnor 2. Buland 2. Chitrakoot 3. Jyotiba Phule 2.

4. Firozabad 3. Farrukhabad Nagar 4. Gonda 3. Kheri Shahar 3. Hamirpur Nagar Sonbhadra)

5. Hathras 4. Etawah 4. Barabanki 5. Gorakhpur 4. Rampur 3. Ghaziabad 4. Jalaun 4. Moradabad

6. Mainpuri 5. Fatehpur 5. Ballia 6. Kushi Nagar 5. Pilibhit 4.Gautam 5. Jhansi 5. Shahjahanpur

7. Mathura 6. Hardoi 6. Chandauli 7. Maharajganj 6. Saharanpur Budha Nagar 6. Lalitpur 6. Sambhal

8. Kasganj 7. Kannauj 7. Faizabad 8. Siddharth 7. Shrawasti) 5. Meerut 7. Mahoba (Kansiram 8. Kanpur 8. Ghazipur Nagar 6. Muzafarnagar

Nagar) 9. Kanpur 9. Jaunpur 9. Sant Kabir 7. Shamli

Dehat 10. Mau Nagar) 8. Hapur)

10. Kanpur 11. Sultanpur Nagar 12. Sant

11. Kaushambi Ravidas Nagar

12. Lucknow 13. Varanasi)

13. Raibareli

14. Pratapgarh

15. Sitapur

16. Unnao)

1 2 3 4 5 6 7 8 9 10 11 12

1. Acacia arabica 29481 87911 49382 0 0 6097 45936 0 10848 229655

2. Azadirachta Indica 49004 0 63162 9741 8243 9948 22126 16741 6970 185935

3. Dalbergia sissoo 23146 47650 30088 65877 36822 23068 32884 18814 3099 281448

4. Eucalyptus species 80323 1101150 327403 39083 599654 96213 0 399966 54366 2698158

5. Ficus religiosa 23996 28731 0 0 0 4363 0 3910 0 61000

6. Holoptelea 10221 27307 36717 0 0 0 8361 0 0 82606

integrifolia

7. Mangifera Indica 68330 307977 277090 99756 138497 83124 18221 131711 26241 1150947

8. Morus Species 4109 0 0 0 4234 7163 0 0 0 15506

9. Porsopis juliflora 14387 0 0 0 0 0 0 0 0 14387

10. Syzygium cumini 11513 38800 26149 5169 17589 7816 5542 13530 0 126108

11. Bombax ceiba 0 168583 0 20248 102505 0 0 28573 7703 327612

12. Madhuca latifolia 0 29060 59742 18991 0 0 66493 0 19299 193585

13. Polulus species 0 129971 0 0 904158 411270 0 56119 0 1501518

14. Artocarpus 0 0 13778 8494 0 0 0 0 0 22272

heterophyllus

1 2 3 4 5 6 7 8 9 10 11 12

15. Tectona grandis 0 0 0 30291 6142 0 0 0 0 36433

16. Terminalia arjuna 0 0 0 7326 5246 0 0 2330 2032 16934

17. Aegle marmelos 0 0 0 0 0 2617 0 0 0 2617

18. Acacia lenticularis 0 0 0 0 0 0 32430 0 0 32430

19. Z1izyphus 0 0 0 0 0 0 18419 0 6811 25230 m9 auritiana

20. R2est of Species 52017 246257 164987 69453 73701 31479 48816 44577 32853 770140

Total 372527 2213397 1048498 374429 1896791 683158 299228 716271 170222 7774521 "

Based on the above, contention of the State of UP is that there is surplus timber availability.

9. After conclusion of the hearing, the State of UP has filed on 18.02.2020 a written note referring to India State of Forest Report (ISFR) 2019 to the effect that there is increase of 'Forest and Tree Cover' as per table given below:

"Table - 1 Increase in Forest and Tree Cover in Uttar Pradesh from 2013 to 2019 as per India State of Forest Report (ISFR), 2015, 2017 & 2019 by Forest Survey of India (FSI)

Sr. Detail for the Uttar Forest Tree Total Forest No. Pradesh as per India Cover Cover and Tree Cover State of Forest Report (Sq. Km.) (Sq. Km.) (Sq. Km.) (ISFR) 2015, 2017 & (Col. 5 = 4+3)

2019

1 2 3 4 5

1 ISFR, 2013 14349 6995 21344

2 ISFR, 2015 14401 7044 21505

3 ISFR, 2017 14679 7442 22121

4 ISFR, 2019 14806 7342 22148

3 Increment from 2013 to +457 +347 +804

2019

4 % Increment of the Forest +3.18% +4.96% +3.77% "

and Tree Cover respectively from 2013 to

2019

It is further stated that provisional licenses have been given to 1215 WBIs in February 2019 before the order of status quo granted by this Tribunal. 632 WBIs have already established their units.

10. Justification for new saw mills/wood-based industries in terms of availability of demand and supply of timber species wise given by the State of UP is that such industries are required to cope up with the demand, without potential of cutting of trees from the Government Forests or private trees of categories which are not exempted. New wood based industries will lead to development of

market, generate employment, encourage planting of seedlings, reduce migration of people, reduce dependence on traditional /cash crops, boost new technology, boost export, reduce import and utilization of resources. Further justification for permitting new industries, according to the State of UP, is as follows:

"a. xx xx xx b. Eucalyptus and Popular are the main species used in WBIs, which is grown mainly by farmers on their land. Eucalyptus and Popular are exempted species in all the districts of the State. It may be submitted, with emphasis, that Eucalyptus and Popular constitute 43.02 lac cubic meter per year out of total timber requirement of 53.94 lac cubic meter per year for all categories of WBIs, which constitutes about 80% of the total timber requirement.

c. It is also submitted that Timber of other species to be used by the WBIs also come mainly from private and farmer's land.

d. It may be noted that the wood production in the State is much higher than the present capacity of existing WBIs in the State. The same is also reflected from the fact that Large quantity of wood (unsawn timber) which is part of the surplus timber i.e. 38.74 lac cubic meter per year is being exported daily from U.P. to WBIs of other States, mainly Haryana, M.P., Uttarakhand and even Punjab. e. The felling of trees from private and farmer's land is regulated by U.P. Protection of Trees Act, 1976 (as Amended). The scope of the Act is also important to be kept In hindsight and the same is provided in Section 2 of the Act. It has already been placed before this Hon'ble Tribunal in modification application filed by the State and therefore the same is not reproduced here for sake of brevity. The felling permits are being issued for non-exempted species as per provisions of the Act. It is necessary to bring to the knowledge of this Hon'ble Tribunal that the State government has issued a notification dated 07.01.2020 in exercise of the powers under Section 21 and 23 of the Uttar Pradesh Protection of Trees Act, 1976 read with Section 21 of the Uttar Pradesh General Clauses Act, 1904. The said notification is annexed herewith and marked as Annexure No. 10.

f. That from the perusal of the said notification, it would be evident that felling of 29 species of trees has been prohibited and other species situated on individual cultivated and un-cultivated holding have been exempted. It

is further provided in the notification that the tree owner shall plant and maintain 10 trees in place of each tree felled. Furthermore, security amount for planting 10 trees is deposited by the farmer with the Forest Department at the time of permission.

g. That as per the Govt. of India Agro Forestry Policy, 2014, India imports about 7-8 billion dollar per year worth of WBIs produce. With the establishment of new WBIs, the imports will reduce thus saving precious foreign currency. h. That it may be noted that the farmers in U.P. are not getting remunerative price and are forced to sell their produce at very cheap rate mainly to middlemen. Moreover, the large- scale daily transportation of wood from U.P. to other States is causing lot of vehicular, noise and air pollution besides heavy expenditure on transportation.

i. That it is relevant to point out that the trees in Govt. Forest are felled, as per the provisions of Working Plans duly approved by the Government of India and the directions of the Hon'ble Supreme Court in T.N. Godavarman (supra) case.

j. That there would be expected investment of about Rs. 3,000 crore in the State with the establishment of new WBIs and employment generation of 80,000 people, mostly in the rural areas of the State. Apart from above, total expected annual turnover is Rs. 1200 Crore, which would be recurring in nature.

k. That 632 out of 1,215 WBIs Provisional License holders have established their units and ready for operation. Such units have been established after huge investments and by taking loans from the banks etc. Apart from the above 632, many other Provisional License holders are also in advance stage of establishment.

Therefore, the status quo granted by Hon'ble Tribunal in order dated 01.10.2019 will cause irreparable hardships to these Provisional License holders."

11. In opposition to the above, an affidavit has been filed on behalf of the applicant on 12.02.2020. Substance of the stand of the applicant is that the statistics furnished by the State are not reliable as the capacity given is based on erroneous assumption. Actual requirement has to be calculated with reference to the use of Horse Power (HP) by different saw mills which may vary. The capacity assumed is contrary to the capacity determined by CEC in

its report dated 18.04.2007 submitted to the Hon'ble Supreme Court. Timber availability for plywood units has been wrongly taken as nil which is against the observations of the CEC, appointed by the Hon'ble Supreme Court, in its report dated 08.12.2009 filed before the Hon'ble Supreme Court on 15.12.2009. Actual consumption capacity of each and every existing unit is available with the forest department but the same has not been furnished. Figure of availability of timber is not factually correct as trees which cannot be felled have also been included. The same have been highlighted by the applicant in the following table:

" Sr. Species Name Common Name Total No.

1. Acacia Arabica BABUL 2,29,655

2. Azadirachta Indica NEEM 1,85,935

3. Dalbergia Sissoo SHEESHAM 3,07,600

4. Eucalyptus Species EUCALYPYUS 28,00,947

5. Ficus Religiosa PIPAL 61,000

6. Holoptelea CHIL-BILL KANJU 82,606 Integrifolia

7. Mangifera Indica MANGO 11,50,947

8. Morus Species MULBERRY 15,506

9. Prosopis Juliflora Keckar 14,387

10. Syzygium Cumini JAMUN 1,26,108

11. Bombax Ceiba COTTON TREE 3,27,612

12. Madhuca Latifolia MAHUA 1,93,585

13. Populus species POPLAR 15,01,518

14. Artocarpus JACK FRUIT 22,272 Heterophyllus

15. Tectona Grandis TEAK 48,390

16. Terminalia Arjuna ARJUN 16,934

17.	Aegle Marmelos	JAPENSE BITTER ORGANGE	2,617
18.	Acacia Lenticularis	INDIAN PLUM	32,430
19.	Zizyphus Mauritiana	SAL	25,230
20.	Shorea Robusta	INDIAN KINOO	29,828
21.	Pterocarpus Marsupium Roxb	Bijasaal	1,196
22.	Acacia Catechu	Khair	3,829
23.	Rest of Species		8,50,345
	Total		80,30,477

12. Total availability, according to the applicant, should be taken as 43,02,465 cubic mtrs. per annum as per following table:

SR. NO.	NAME OF SPECIES	AVAILABILITY
1.	EUCALYPTUS	28,00,947 Cubic Mtrs.
2.	POPLAR	15,01,518 Cubic Mtrs.
	TOTAL	43,02,465 Cubic Mtrs.

13. In support of its stand that total available of timber is 65,540 cubic mtrs., the applicant has relied upon letter dated 07.12.2015 of the office of Principal Chief Conservator of Forest, UP. It is also submitted that with the installation of new advanced machineries, consumption of existing units will go up by four times. With regard to availability of forest cover, it is stated that extent of recorded forest area (RFA) is 16,592 sq. km which is only 6.88% of its geographical area in UP as against target of 33% (as per the India State of Forest Report 2019). Any further wood based industry/saw mills may adversely affect the existing forests.

14. We have given due consideration to the rival contentions and analyzed the data furnished on behalf of the State.

15. It is well settled that wood based industries/ saw mills can be allowed only after ensuring timber and raw material availability to sustain such industries. This has to be determined in actual terms and not on mere assumption. In the present case, we find it difficult to accept the stand of the State of Uttar Pradesh that there was availability of timber/raw material to sustain new WBIs/saw mills. In the Affidavit filed on behalf of the State of Uttar Pradesh, in compliance of order of this Tribunal dated 18.12.2019, it has been stated that total potential availability of the Timber per year

in the State of Uttar Pradesh is 80.30 lakh cubic meters, which includes 2.56 cubic meters from the Government Forest and 77.74 lakh cubic meters from Trees Outside Forest (TOF). Out of 80.30 lakh cubic meter 71.8 lakh cubic meters is stated to be available from 22 different species and 8.50 lakh from the other species. Out of 22 species, there are 10 species which are prohibited from felling from individual and uncultivated holdings as per the Government of Uttar Pradesh Notification of 07.01.2020 which contribute 20.75 lakh cubic meter. Out of the rest of the species, the major contribution is from Eucalyptus (28 lakh cubic meter) and Popular species (15 lakh cubic meter) total of which is 43 lakh cubic meter. When FSI report says 77 lakh cubic meter of industrial wood is potentially available in the State of UP from Trees Outside Forests (TOF), it means that on the basis of the inventory of trees outside forests, 77 lakh cubic meter can be available annually, if the farmers harvest them. Thus, the figure is not actual but presumptive. It does not exclude the timber which may not be harvested immediately or in the near future. The potential volume of wood provided is not, thus, actual production. This has been arrived at using Von Mantel formula which takes into account species wise growing stock and rotation age. At the national level survey¹, the standard error percentage is around 5%, at State level around 15% and at the district level it is 25 - 30%. For species wise estimates, the standard error is still higher. Such standard error has not been kept in mind in the report filed by the State. In view of this, the Eucalyptus and Poplars that will be actually available for wood based industries in UP will not be 43

1 INDIA STATE OF FOREST REPORT 201 9

lakh cubic meter as assumed by the State of U.P., but will only be about 32 lakh cubic meter and other species not more than 10 to 12 lakh cubic meter. Therefore, the total timber available for consumption every year from all the species including those from Government Forest will be of the order of 40 to 45 lakh cubic meter per year, as against assumed availability of 80.30 lakh cubic meter. Our comments remain the same with respect to the ISFR 2019 filed today.

16. Based on satellite data of October - December 2015, the total growing stock in TOF as per FSI report of 2017 was 88.340 lakh cubic meter and potential production of industrial wood from TOF was 70.6 lakh cubic meter and total production from Government Forests during 2015-2016 was 2.11 lakh cubic meter. During the period between 2013 and 2017, TOF has gone up by 7.82 percent, therefore, the potential availability of industrial wood from TOF should be assumed to be about 76 lakh cubic meter. In our view, potential availability of 77.74 lakh cubic meter from TOF as given in affidavit appears to be overestimation. In order to arrive at accurate assessment of timber that will be available for consumption by the industries, it is necessary to have District wise, species wise and diameter-class wise inventory. Such a study, if not already done, can be assigned to FSI who have undertaken similar studies for many States like Punjab and Maharashtra and others. It is only after such credible study and assessment that any further decision ought to be taken.

17. It has been mentioned in the Affidavit of the State that during 2019 there were 6,686 saw mills/wood based industries operating

in the State of Uttar Pradesh and the capacity of these units is

41.5 lakh cubic meter per year. Therefore, the total Timber that will be actually available for new industries as per the data given in the Affidavit of the State is not going to be more than about 2 lakh cubic meter per year. It, therefore, appears that the Timber that has been allotted for new wood based industries by the State Level Committee (SLC) of wood based industries which is 18 lakh cubic meter appears to be absurdly unrealistic. In view of our above comments, such allotment will be against the tenets of principle of sustainable development, precautionary principle and public trust doctrine. Allowing more number of saw mills/WBIs, than the carrying capacity, will, in the given facts and circumstances, undermine these principles.

18. We are, therefore, satisfied that there will be hardly any industrial wood actually available for new wood based industries, based on above data made available by the State. In these circumstances, if new industries are allowed to open, based on wrong estimation of availability of timber, a situation may arise when there may not be any timber to be allotted to the unit or the industry may resort to illegal means to procure round timber in order to keep its unit afloat. Such a situation may not be allowed to come up in view of 'Precautionary' principle of environmental law. State should therefore make an inventory species wise and district wise and also have species wise consumption data of all the wood based industries and their capacity to utilize them and not proceed with the present proposal till further exercise of making inventory and assessment of actual availability of timber / raw material is done.

19. In view of above, we quash notice dated 01.03.2019 issued by the State of UP for establishing new wood based industries/ saw mills and all provisional licenses given in pursuance thereof. The applications are disposed of accordingly.

Adarsh Kumar Goel, CP

S.P Wangdi, JM

Dr. Satyawan Singh Garbyal, EM

Dr. Nagin Nanda, EM

February 18, 2020

O.A. No. 335/2019 &

other connected matters

UDAY EDUCATION & WELFARE TRUST v. STATE OF U.P.

National Green Tribunal — Principal Bench, New Delhi: Summary of Order dated 18.02.2020

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

State of Uttar Pradesh — Contentions and Evidence

Applicant(s) / Environmental Applicant — Contentions and Evidence

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

UDAY EDUCATION & WELFARE TRUST v. STATE OF U.P.

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