Indiscriminate Cutting Of Trees Violates Art. 21, Exemption Clauses Only In Exceptional Situations, Holds NGT While Quashing UP Govt’s Tree Cutting Permit Exemption Notification [Read Order]

Holding that felling of trees indiscriminately, even in the absence of state Tree Protection Act, is in violation of Article 21 of the Constitution, the National Green Tribunal (NGT) has quashed the Uttar Pradesh government’s notification exempting all but five species of trees from the purview of seeking prior permission for felling.

A bench headed by Chairperson Justice Adarsh Kumar Goel passed the order on an application filed by Kshitij Agnihotri, a law student and social worker, challenging the validity of a state government’s notification issued on October 31, 2017, that exempted all species of trees, barring five (mango, neem, sal, mahua and khair) outside the forest areas in 62 districts, from the mandatory permission regime under the Uttar Pradesh Protection of Trees Act, 1976. In 13 other districts, the notification allowed all varieties of trees leaving six (mango, neem, sal, mahua, khair and teak) to be cut down without any permission from the Forest Department.

The applicant had claimed that the notification had been issued by the government to encourage sawmills across the state and that it would adversely affect the environment, water bodies, water tables and would worsen the already-polluted air conditions in cities like Kanpur, Agra, Lucknow and parts of the National Capital Region.

“Instead of taking corrective measures, the state is issuing new license to wood-based industry without having availability of timber. This will only encourage cutting of trees,” the petition stated.

“We had argued that the notification issued by the state government was in violation of various Supreme Court’s orders and also against the legislative intent behind the enactment. The object of the notification was to actually promote the wood-based industries by allowing cutting of trees,” counsel for the applicant, Arvind Kumar Shukla told LiveLaw.

“Except six species, any species of trees could be cut without permission and there would be no restriction on the transportation of wood cut from trees. It takes about 10-12 years for a tree to assume some shape and if you allow a tree to be cut down without any regulation, there would be no greenery left. They have to think that environment is a bigger issue today,” Shukla said.

The state government, in its reply, stated that the exemption would allow planting of trees, which could be cut without any regulatory regime. The existing regulatory regime in the state discouraged farmers from planting more trees. Citing the national goal of having 33 per cent of country’s total geographical area under forest and tree cover, as per the National Forest Policy 1988, the National Agro Forestry Policy, 2014 that purportedly provided for liberalization of restrictive regulation of agro-forestry species and the Environment Ministry’s guidelines for Felling and Transit Regime for Tree Species Grown on Non-Forest/Private Land, the government maintained that the notification was consistent with the guidelines of the Central Government issued on November 11, 2016, and September 11, 2017, in pursuance of the Supreme Court’s orders in T.N. Godavarman Thirumalpad matter.

The state government admitted that it has only 8.9 per cent forest cover.

The state’s counsel also submitted that the NGT had no jurisdiction to go into the merits as the Trees Protection Act was not in the Schedule to the National Green Tribunal Act, 2010.

The Ministry of Environment, Forests and Climate Change maintained that agro-forestry species grown by farmers should be exempted from transit, permit and felling regulations.

The applicant, however, rebutted the state’s claim holding that the notification had no nexus to the increase of forest cover. The exemption applied even to 20-year-old trees and not merely to agro-forestry species.

“Plea of benefiting the farmers for the object of increasing the forest cover is only camouflage and smokescreen to cover up the real object of promoting wood-based industries at the cost of environment,” the applicant’s counsel argued.

While holding that “the Tribunal is a special forum for effective and expeditious disposal of civil cases relating to environment protection and conservation of forest and other natural resources”, the bench, also comprising Justices Dr. Jawad Rahim and S.P. Wangdi and Expert Member, Dr. Nagin Nanda, observed, “Once there is a nexus of an issue to the environment protection, it is difficult to understand why this Tribunal will not have a jurisdiction in the matter.”

“…we are unable to find any nexus in the object of encouraging agro forestry to exempting the cutting of all the trees, except few, from the purview of the regulatory regime under the UP Trees Protection Act. Omnibus exemption of all species, except few, can hardly be said to be promotion of agro-forestry,” the order, delivered on September 11, read.

“Even without the Uttar Pradesh Trees Protection Act, 1976, felling of trees indiscriminately is not permitted as it violates Article 21 of the Constitution. It is well settled that an exemption provision has to be applied to an exceptional situation. General exemption without creating defined category of exemption results in defeating the main statute, by an arbitrary exercise of power. The impugned notification does not merely restrict the exemption to agro forestry and goes much beyond,” the tribunal held.

“The State of UP has no power to permit unregulated cutting of trees in violation of the law laid down by Hon’ble Supreme Court,” the tribunal said, while leaving the discretion upon the state government to carry out a proper impact assessment and thereafter grant any exemption after making inventory of all the agro-forestry produces specifying species of agro-forestry, in sync with the requirements of the Forest Conservation Act as interpreted in the T.N. Godavarman Thirumalpad case.