IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1301 of 2006 Decided on: April 7,2011. Yogendra Chandra …….Petitioner. Versus State of H.P. and others …….Respondents. ________________________________________________ Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Ahuja, Judge Whether approved for reporting? Yes. For the petitioner: Mr.R.L.Sood, Senior Advocate, with Mr.B.C. Negi and Mr.Arjun K. Lal, Advocates. For the respondents: Mr.R.K. Bawa, Advocate General, with Mr.Ankush Dass Sood, Additional Advocate General & Mr.J.K. Verma, Deputy Advocate General, for respondents 1 to 5. Mr.Ajay Sharma, Advocate, for respondents No.7 to 10 & 12 to 16. Mr.Deepak Kaushal, Advocate, for respondent No.11. Mr.Satya Pal Jain, Senior Advocate, with Mr.Ajay Sharma, Mr.Devesh Moudgil & Mr.Dheeraj Jain, Advocates, for applicant in CMP No.11480 of 2010. ---------------------------------------------------------------- Justice V.K. Ahuja,J.: In this public interest litigation, petitioner has challenged the policy of the State in granting new licences to Katha manufacturing units. Briefly stated, the facts, as alleged by the petitioner, are that the petitioner is a social and public activist associated with a number of organizations including the Environmental Protection Society engaged in the preservation of flora and fauna and safeguarding the forest and wild life in the State of Himachal Pradesh. The controversy in the present writ 2 petition, as alleged by the petitioner, relates to the grant of illegal sanctions by the State of H.P. to various Katha Manufacturing Units in the State in complete defiance of the judgment, dated l8.5.1997 (Annexure P-1) passed by this Court as well as the report of the Expert Committee formulated by the State Government to assess the availability of Khair trees. It was alleged that it was clearly stated therein that up to the year 2003-04, there would be no Khair wood available for any new unit. The said averment is alleged to be based on para 29 of Annexure P-1, wherein this Court had noticed the above fact after taking into consideration the report of the Committee comprising of 7 Members including the Principal Chief Conservator of Forests, H.P. as its Chairman. 2. It was further alleged that this fact had been brought to the notice of this Court initially through writ petition No.1455 of 1993 filed by the petitioner but was dismissed by this Court. It was further alleged that the matter was carried in appeal to the Supreme Court by the petitioner and other affected persons. The orders of this Court passed on 30.12.1994 were set aside by the Supreme Court in case State of H.P. versus Ganesh Wood Products 1995(6) SCC 363, whereupon the Supreme Court was pleased to remand the matter to this Court for deciding the same afresh. Consequent thereof, Annexure P-1 judgment dated 8.5.1997 was delivered by this Court. 3. It was further alleged that till the year 1975, Katha, which is derived from Khair trees was being manufactured in the State of H.P. by only Bhattiwalas. The manufacture of Katha requires cold conditions and the 3 Bhattiwalas used to manufacture the same only during the winter season. By the year 1975, a mechanized unit was established for the manufacture of Katha. That unit was the only mechanized unit for the manufacture of Katha. Thus, it was alleged that with the establishment of this unit, Katha could be manufactured round the year on account of mechanized extraction, cooling systems etc. which were employed and put to use in the said unit. It was further alleged that the State of H.P. had been evolving schemes for encouraging industrialization in the State. Vide notification dated 13.5.1974, the Governor of Himachal Pradesh established the Industrial Projects Approval and Review Authority (IPARA) comprising of the Chief Secretary to the Government, Secretaries of various departments, Chief Conservator of Forests, Director of Industries etc. The terms of reference and activities to be taken by the IPARA were specified, which may be reproduced below: “To process the applications for establishment of new industries and select projects for government approval.” 4. It was further alleged that the said IPARA was abolished by the Government on 29.11.1990. However, the same was constituted again vide notification dated 3.9.1993. During the intervening period, the Director of Industries, Himachal Pradesh, was looking after the work of IPARA. It was further alleged that during the year 1992-93, several units applied to IPARA/Director of Industries proposing to establish mechanized units for the manufacture of Katha. In all, 50 units applied. However, the details of only 8 such units, as alleged, would be relevant. The applications made 4 by all these 8 units were considered by the Sub Committee of IPARA, which granted approval to all the said units. The statement showing the projects approved by the IPARA giving details of the units etc. are detailed in Annexure P-1 as well in the judgment of the Apex Court in Ganesh Wood Products case (supra). It was further alleged that since the approval was provisional in nature and had been granted by the Sub Committee of the IPARA, all the proposals were put up for consideration before the Full Committee of IPARA. The Full Committee met on 28.8.1993 and recommended that units such as M/s Shankar Trading Company, M/s Doon Katha Udyog, M/s Orient Herbs and M/s Sagar Katha Factory, which units were already existing and functioning, were recommended for the Government’s approval. The proposals for establishment of units such as M/s Indian woods and M/s Chander Industries were rejected. The matter was put up before the Governor and consequently, M/s Hari Krishan Bajaj (Dev Bhumi Industries), M/s Naman Wood Products, and M/s Ganesh Wood Products were approved. It was also alleged that alongwith the said units, the existing unit of M/s Shankar Trading Company was also approved by the Governor on 15.9.1993. 5. It was further alleged that during this period, a writ petition being CWP No.1455 of 1993 was filed by the petitioner in this Court seeking issuance of appropriate writ restraining the Government from permitting the establishment of Katha Units in the State as it was likely to have an adverse effect on the environment and the ecology of the State due to indiscriminate felling of Khair trees. Thereafter, M/s Shankar Trading Company, Una, a Katha 5 manufacturing unit, also filed a writ petition being CWP No.1475 of 1993 on the ground that the raw material available in the State was not adequate to sustain any new unit. It was further alleged that after the decision of the Governor, dated 15.9.1993, three writ petitions were filed by the units i.e. the aforementioned three new approved units, namely, M/s Hari Krishan Bajaj (Dev Bhumi Industries), M/s Naman Wood Products and M/s Ganesh Wood Products, vide CWPs No.1576 & 1590 of 1993 and 145 of 1994. Two other writs were also filed by Indian Wood Products and Chander Katha Products and one was filed by Vaid Parkash on behalf of Bhattiwalas. It was alleged that this Court, vide judgment in Yogendra Chandra vs. State of H.P. and others, reported in 1995(2) Shim.L.C. 100, dismissed the writ petitions filed by the present petitioner and M/s Shankar Trading Company, while the other two writ petitions were allowed and the orders of the Government refusing permission to the three units were quashed. Two writ petitions were allowed with directions to the State authorities to consider their cases in the light of observations made in the judgment. It was further alleged that against the aforesaid judgment, the State of H.P., the present petitioner and M/s Shankar Trading Company filed SLPs in the Supreme Court and vide judgment referred to above, the SLPs were allowed and the case was remanded for fresh disposal. The Government of H.P. was directed to make a survey and assess approximate availability of Khair wood in the year 1996 and the ensuing years. This was directed to be done through an expert body to be appointed by the Government. The Government was also held entitled to rely 6 upon the report of the Expert Committee before this Court for its consideration. Further directions were given that no new industry/unit for the manufacture of Katha would be approved by the Government pending a final decision on the question of availability of raw material in the years to come. The case was decided by this Court again after remand vide judgment dated 8.5.1997 and the decision of the State Government was upheld of refusing permission for setting up some of the new Katha units. It was also held that the objections filed against the findings of the Expert Committee report were unfounded. Thus, the findings of the Expert Committee were upheld by this Court. It was further held that availability of Khair wood from 1996-97 to 2003-04 was adequate only to serve the requirements of the existing two units of Himachal Pradesh, namely, M/s Sagar Katha Factory and M/s Shankar Trading Company as well as M/s Oriental Herbs which was in working condition. The categorical stand of the State Government in the said affidavit was that no Khair wood would be available for any fresh unit. 6. It was further alleged that after the passing of the judgment by this Court on 8.5.1997 and after considering the findings of the Expert Committee regarding the non- availability of Khair trees for setting up of the new units in the State of H.P. up to the year 2003-04, the State Government in gross violation of this Court’s judgment and the Expert Committee report, started giving indiscriminate permissions to new Katha Units in the garb of naming such units as small scale cottage industries. Some of the units illegally granted permission, as alleged by the petitioner, 7 have been arrayed as respondents No.7 to 16. It was further alleged that in pursuance of the judgments of the Apex Court and this Court, only existing four mechanized units had been permitted to function and carry out Katha manufacturing activities in the State. Other than these units, the traditional ‘Bhatties’ which do not employ any mechanized/mechanical means for the extraction of the Katha and its cooling etc. were permitted to continue to function and were given licences/permission for the extraction of the Katha. The process of manufacturing employed by these traditional Bhatties is detailed in para 159.3 of The Fifth Working Plan for the Forests of Una and Dehra (Part) Forest Divisions. It was alleged that the State Government has been granting permission to respondents No.7 to 16, amongst others, who are similarly placed units and are using boilers, whether big or small/baby boilers, auto claps and other mechanical cooling devices and are no longer functioning as traditional Bhatties which only use the Handies for boiling and extraction of Katha from the Khair tree. Thus, it was alleged that such illegal permission has been granted by the authorities to such units which are in fact mechanized units and cannot be permitted to function in view of the law laid down by the Apex Court as well as by this Court. The State Government had granted permission to these units terming them as Bhatties but these units are nothing but tiny mechanized units which have boilers with auto claps. It was alleged that the establishment of these units is not only in violation of the directions of the Apex Court, this Court as well as of the Expert Committee report, but also these units 8 are not even registered with the Industries Department. These units had not taken the necessary permission under the Indian Boilers Act, 1923 and have not paid the necessary fees etc. 7. It was further alleged that the ‘Bhatti’ is the traditional method used in the manufacturing of Katha. Wood is used as fuel to heat up 20 kg capacity Handies of Aluminum filled with Khair wood. However, in the mechanized unit system, the Katha is manufactured with the use of machinery i.e. Bandsaw, Chipper, Auto Claps (40 quintal capacity) which are run on electricity. It was further alleged that the Financial Commissioner-cum-Secretary, Forest Department, Govt. of H.P. wrote a letter dated 4.11.1991 to the Principal Chief Conservator of Forests regarding the export of Khair wood outside the State of H.P. for which permission was to be given by the DFO concerned after obtaining prior approval of the State Government. This step was highly illegal in view of the stand taken by it before this Court as well as before the Apex Court since there is no availability of Khair wood for setting up of additional mechanized units except the three units which were approved alongwith the existing unit of Shankar Trading Company. Further, vide notification dated 20.8.2001, the State permitted the export of Khair wood which is illegal since no fresh assessment has been carried out by respondent No.1 to assess the availability of Khair wood. Thus, the State Government has permitted the export of Khair Billets (with Bark) from the State of Himachal Pradesh to outside States. The said notification also deserves to be quashed since the orders were passed without considering the availability of Khair wood as assessed by the Expert 9 Committee, which report was considered by the Apex Court as well as by this Court. Thus, it was alleged that the illegal felling of Khair trees on account of the export policy will lead to denudation of Khair trees which is on the increase, which will adversely affect the forest wealth, flora and fauna of the State. It was further alleged that while granting licence to respondents No.7 to 16 Katha Udyogs, various conditions were imposed. One of such condition was that the Katha would be extracted during the winter months from November to March only while the traditional un- mechanized Bhatties can operate without the aid of any mechanical cooling devices. However, with the introduction and use of mechanical devices, most of these Katha Udyogs are extracting Katha throughout the year which is resulting in illegal felling of Khair trees as they are consuming Khair trees much beyond their permitted entitlement. The capacity of these Katha units in terms of the licence granted is 25 quintals per day. However, all the aforesaid units are operating at over 100 quintals per day. Thus, it was alleged that due to grant of permission to the said Katha Udyogs, the illegal felling of Khair trees has increased disturbing the environment. Thus, it was alleged that the State Government should cancel the licence granted to all these Katha Udyogs being in violation of the orders of the Apex Court and the terms of licence. 8. In view of the above submissions, the petitioner claimed the following reliefs: “a) To quash the permission/licences granted to illegal mechanized units for Katha manufacturing such as respondents No.7 to 16. 10 b) To quash the notification dated 6.1.2006 amending the H.P. Forest Produce Transit (Land Routes) Rules, 1978 and consequently export of Khair Billets (with Bark) outside the State of Himachal Pradesh, which was permitted as per these Rules.” 9. In the reply filed by the respondents/State, it was pleaded that some of the Katha Bhatties established prior to the judgment of this Court, dated 8.5.1997, have been registered by the Industries Department. However, registration as a tiny or small unit with the Department of Industries is not mandatory but in case the units intend to have the facilities and incentives of the State Government, they require to get themselves registered with the Industries Department. Some of the units have also applied for registration to Chief Inspector of Boilers. It was further pleaded that upto the year 2000, Katha was being manufactured by the Bhattiwalas by way of boiling the Khair chips obtained from Khair wood, in Handies. However, during the year 2000, some Bhattiwalas made a representation that they may be allowed to manufacture Katha by installing baby boilers in replacement of traditional Handies. The issue was got examined by a Committee constituted by the Government which approved the installation of Katha Bhatties with baby boilers in favour of 10 Katha Bhattiwalas. The Government got examined the issue of installation of baby boilers in replacement of traditional Handies and the issue was examined and it was observed that this will not be in violation of the orders passed by the Apex Court as well as by this Court in the decisions referred to above. It was alleged that the permission to manufacture Katha has been allowed to various 11 Bhattiwalas using baby boilers, which is not in violation of the orders of the Apex Court. It was further pleaded that three Katha Bhatties have been given permission to install baby boilers during the period August 2006 to January 2007. However, from 2001 to 2007, 39 Katha Bhatties have been permitted to switchover to the use of baby boilers. It was further pleaded that the permission for manufacture of Katha is granted to the Bhattiwalas using baby boilers if the requisite quantity of Khair wood is available with them through legal means. The raw material to these Bhatties is procured by Bhattiwalas from Khair trees which are allowed to be felled from the private land under 10 year felling programme approved by the Government. The Bhattiwalas are required to maintain proper record of the raw material and are allowed to function only from November to March on seasonal basis as is being done by the Bhatties manufacturing Katha through traditional means. Thus, it was pleaded that the permission was granted to a selected few and no fresh permissions have been granted and these are not in violation of the orders passed by this Court as well as by the Apex Court. It was also pleaded that while allowing use of baby boilers by the Bhattiwalas for manufacturing of Katha, the Government has followed the orders passed by the Courts and have acted in public interest and the present writ petition by the petitioner is not maintainable. 10. We have heard the learned counsel for the parties and have gone through the record of the case. 12 11. The following points arise for consideration from the pleadings of the parties and the submissions made during the course of arguments: i) Whether the writ petition filed by the petitioner is maintainable? ii) Whether the policy decisions taken by the State Government can be looked into by this Court? iii) Whether the decisions taken by the State Government in sanctioning the permission to install baby boilers to some of the units can be said to be in violation of the orders passed by the Apex Court and this Court? iv) Whether the relief as claimed by the petitioner can be granted without impleading the affected parties i.e. the units to whom permission has been given for use of the baby boilers? 12. On the first point in regard to maintainability of the petition, the petitioner had alleged that he is a public spirited person and had been engaged in preservation of flora and fauna and safeguarding forest and wild life in the State of H.P. and had been continuing his crusade in this manner for the last number of years. It was also argued by the learned counsel for the petitioner that previously such a petition had been filed by the petitioner in public interest and it had been held by the Apex Court that the petitioner is such a person and is entitled to file such petition in public interest. Reliance was placed upon the observations made by the Apex Court in State of H.P. versus Ganesh Wood Products, 1995(6) SCC 363, wherein in para 52 it was observed by their Lordships as under: 13 “52. We must say that in the light of the above considerations, the High Court was not right in observing that Shri Yogendra Chandra cannot be accepted as a public-spirited citizen approaching the court to protect public interest – more so, when it has recorded a simultaneous finding that there is no evidence of collusion between him and Shankar Trading Company (Mahesh Udyog). The credentials of Shri Yogendra Chandra appear to be impeccable. He is not only a member of the Himachal Pradesh Legislative Assembly but also the Convener of the Indian National Trust for Art and Cultural Heritage. He is also the President of the Himalyan Wild Life and Environment Preservation Society. The said organizations may be big or small, may be well-established ones or recently started ones – that is immaterial. Once it is found that he was not acting at the instance of or at the behest of or for protecting the interests of Shankar Trading Company, there was no reason to hold that he was not acting bona fide in approaching the court to preserve the forest wealth of the State in the interest of environment and ecology. His inability to produce material in support of his allegation of illicit felling in the State does not tell upon his bona fides.” 13. In the present case, no material has been placed on record which could even suggest that the petitioner was protecting the interests of Shankar Trading Company or any other company or was acting in collusion with the said companies or was protecting their interests and as such the bonafides or credentials of the petitioner in filing the petition in public interest cannot be challenged in the absence of any material on record. He was recognized as a public spirited person interested in the preservation of forest wealth and as such his right in approaching the court in public interest cannot be doubted. However, in case any such facts were brought on record, which showed his collusion or personal interest or interest of the companies, it could be said that the petition was not in public interest. However, keeping in view the material placed on record, there is nothing to doubt his credentials and he has been carrying 14 his crusade in this manner to protect the forest wealth and maintenance of environment and ecology. Therefore, the objection raised as to the right of the petitioner to challenge the decision of the State Government is without any basis. 14. The second question raised by the learned Advocate General for the respondent State is that the policy decisions of the State Government to permit boiler units in place of traditional Handies and in permitting the export of Khair wood outside the State are the decisions taken by the State Government in accordance with the policy of the State Government, which cannot be challenged or looked into by this Court. It was submitted by the learned Advocate General that the State has to consider that there is an encouragement to Katha growers to grow more such trees for their upliftment and for that purpose permission was granted to the Katha units for using the boilers etc. and also the permission for export was granted to encourage the people to grow more Khair wood trees. It is for the State Government to consider on the basis of the material placed on the record including the report of the Expert Committee as to whether the Khair wood will become extinct from the State of H.P. by permitting the mechanized units to operate or not and as to whether the permission for export should be given or not, which would encourage only the growers to grow more Khair wood for their upliftment. It is for the State Government to consider that the Khair wood does not become extinct or its felling in an excessive manner does not spoil the environment and ecology and as such these questions cannot be considered by this 15 Court in its jurisdiction under Article 226 of the Constitution of India. The jurisdiction of the Court was only limited to the question as to whether it would not be in public interest but all such considerations are to weigh with the State Government in accordance with the policy framed by it and cannot be subject to the scrutiny of the Court. 15. To substantiate his above submissions, the learned Advocate General for the State had relied upon the