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Judgment
Vivek Singh Thakur, Judge
These petitions, involving identical questions of fact and law for adjudication and seeking almost identical reliefs in both petitions, are being decided by this common judgment.
In CWP No.10525 of 2025, initially prayers ‘A’ and ‘B’ were made. However, during the pendency of the petition, vide order dated 17.09.2025 passed in CMP No.14900 of 2025, amendment was allowed and prayer ‘B.1’ was also added. Accordingly, the substantive reliefs prayed for in this petition are as under:–
“A. Issue an appropriate writ to quash and set-aside the notification dated 29.04.2008 (Annexure P-2) as being bad in the eyes of law to the extent it put restrictions on Katha Bhatti using IBR Boiler for the reason that the same is discriminatory and against Article 14 & 19(1)(g) of the Constitution of India.
B. Issue an appropriate writ to set-aside the decision of the 15th meeting of the SLC dated 04.07.2024 related to Agenda No.3 (Annexure P-9), and also the appeal order dated 30.04.2025 (Annexure P-11) taken by the Appellate Authority (Respondent No. 1), as being arbitrary and without jurisdiction.
B.1. Issue an appropriate writ or direction to quash and set-aside all the subsequent and consequential action of the Respondent State, as a consequence of the decision of the SLC dated 04.07.2024 related to Agenda 3 (Annexure P-9) & Appeal Order dated 30.04.2025 (Annexure P-11) including the consequential conversion order by the Respondent No. 6 (Annexed as Annexure R-6/16) and also the notification dated 15.03.2025 issued by the Respondent State (Annexed as Annexure R-6/17).”
In CWP No.14736 of 2025, the substantive relief prayed for in the petition is as under:-
“A. Issue an appropriate writ or direction to quash and set-aside the decision of the SLC dated 04.07.2024 related to Agenda 3 (Annexure P-9) & Appeal Order dated 30.04.2025 (Annexure P-15) and all the subsequent and consequential action of the Respondent State, as a consequence of the said decision including the consequential conversion order by the Respondent No. 6 and also the notification dated 15.03.2025 issued by the Respondent State (Annexed as Annexure P-14).”
Replies on behalf of respondent-State, i.e. respondents No.2, 5 and 6, as well as respondent No.7, have been filed. Respondents No.8 to 33 in CWP No.10525 of 2025 have adopted the reply filed on behalf of respondent No.7. No reply has been filed on behalf of respondents No.1, 3 and 4, keeping in view the nature of the petitions and the reliefs prayed for therein.
A. FACTS OF THE CASE
Certain undisputed facts, emerging from the pleadings of the parties, are being enumerated hereinafter.
The Legislative Assembly of the State of Himachal Pradesh enacted the Himachal Pradesh (Sale of Timber) Act, 1968 (Act No.18 of 1968) (hereinafter referred to as the “Timber Act, 1968”), which received the assent of the President of India on 12.11.1968 and was published in the Rajpatra Himachal Pradesh (Extraordinary) dated 17.02.1968. The relevant provisions thereof, referred to by the parties, are reproduced as under:–
“3. Power to make rules, regulating sale of timber and the establishment of sale depots.-
(1)The State Government may, by notification in the Official Gazette, make rules to regulate the sale of timber and the establishment of sale depots for such timber.
(2)In particular and without prejudice to the generality of the foregoing powers, such rules may,-
(a)prescribe the classes of timber to which the rules shall apply;
(b)define what shall be deemed to be a sale depot;
(c)provide for the establishment, registration, regulation and inspection of the depots, and the levy of fees for registration; prescribe the period for which registration shall hold good and the conditions under which timber may be brought to, stored at, and removed from, sale depots; and prohibit the sale of timber at or the establishment or maintenance of unregistered sale depots;
(d).. .. .. .. .. .. .. ..
(3)All rules made under this section shall be so made after previous publication in the Official Gazette.
(4)All rules made under this Act shall be laid before the Legislative Assembly as soon as may be after they are made.”
In exercise of the powers conferred under Section 3 of the Timber Act, 1968, the Himachal Pradesh Forest (Sale of Timber) Rules, 1969 (hereinafter referred to as the “Timber Rules, 1969”) were framed. The relevant Rules thereof, referred to by the parties, read as under:–
“2.Definition: - In these rules unless there is anything repugnant in the subject or context,-
(i)"timber" includes trees when they have fallen or have been felled and all wood whether cut-up or fashioned or hallowed out for any purpose or not;
(ii)"Depot" means any building or place where timber is brought or stored for sale, as it is or processed through sawing or any other method/process.
[Explanation- Saw mills which process timber through sawing for whatever purpose shall be deemed to be depot.]
3.No person shall establish or maintain a depot unless it is registered in accordance with these rules.
4.Any person wishing to establish or maintain a depot shall register the same in the office of the Forest Division in which the depot is situated, and shall give in respect of such depot such details in regard to origin of timber as may be required by the Divisional Forest officer. Every person registering a depot shall be and remain responsible for the observance of all rules which may from time to time be notified by the Himachal Pradesh Government under section 3 of the Himachal Pradesh Forest (Sale of Timber) Act, 1968, provided that the Divisional Forest Officer, with the approval of the Conservator, may exempt by order in writing any timber dealer from the operation of such rules as he may consider necessary. Each depot registered under this rule shall be assigned a number by the registering officer. In the case of persons having depots at the late of the publication of these rules a period of six months from such will be allowed within which the deposit existing shall be registered.”
In the year 2008, draft amendment Rules titled the Himachal Pradesh Forest (Sale of Timber) Rules, 2008, were published in the Rajpatra Himachal Pradesh (Extraordinary) on 04.01.2008 vide Notification No. FFE-B-F(7)-1/2000 dated 31.12.2007, in pursuance of Section 3 of the Timber Act, 1968, inviting objections and suggestions from persons likely to be affected thereby, as required under Section 3(3) of the Timber Act, 1968, within a period of thirty days from the date of publication.
For receiving no objection or suggestion, in the specified period, the Himachal Pradesh Forest (Sale of Timber) Rules, 2008 (hereinafter referred to as ‘Timber Rules, 2008’), were notified. Amongst amendment of other Rules, amendment of Rules 2 and 4, as referred to by the parties, read as under:-
Amendment of rule 2 2 In rule 2 of the Himachal Pradesh Forest (Sale of Timber) Rules,1969 (hereinafter referred to as the said rules) after clause (ii), the following shall be added, namely:-
"Explanation: Katha Bhatti and Katha Bhatti using IBR boiler which process khairwood for the manufacture of katha and allied products shall be deemed to be a depot."
Amendment of rule 4 3 After rule 4 of the 'said rules' the following shall be added, namely:-
The Operation of the Katha Bhatties and Katha Bhatties using IBR boilers shall be regulated as per conditions enumerated in Annexure-A appended to these rules.
As a result of aforesaid amendment, the amended Rules 2 and 4 of the Timber Rules, 1969, as amended by the Timber Rules, 2008, read as under:-
“2.Definition: - In these rules unless there is anything repugnant in the subject or context,-
(i)"timber" includes trees when they have fallen or have been felled and all wood whether cut-up or fashioned or hallowed out for any purpose or not;
(ii)"Depot" means any building or place where timber is brought or stored for sale, as it is or processed through sawing or any other method/process.
Explanation- Saw mills which process timber through sawing for whatever purpose shall be deemed to be depot.
Explanation: Katha Bhatti and Katha Bhatti using IBR boiler which process khairwood for the manufacture of katha and allied products shall be deemed to be a depot. .. .. .. ..
4.Any person wishing to establish or maintain a depot shall register the same in the office of the Forest Division in which the depot is situated, and shall give in respect of such depot such details in regard to origin of timber as may be required by the Divisional Forest officer. Every person registering a depot shall be and remain responsible for the observance of all rules which may from time to time be notified by the Himachal Pradesh Government under section 3 of the Himachal Pradesh Forest (Sale of Timber) Act, 1968, provided that the Divisional Forest Officer, with the approval of the Conservator, may exempt by order in writing any timber dealer from the operation of such rules as he may consider necessary. Each depot registered under this rule shall be assigned a number by the registering officer. In the case of persons having depots at the late of the publication of these rules a period of six months from such will be allowed within which the deposit existing shall be registered.
The Operation of the Katha Bhatties and Katha Bhatties using IBR boilers shall be regulated as per conditions enumerated in Annexure-A appended to these rules.”
Relevant clauses of Annexure-A, appended to the Timber Rules, 2008 in terms of Rule 4 thereof, read as under:-
1 The number of traditional katha bhatties allowed to operate in H.P. shall be 40 as were operating during 2006-07.
2 The number of katha units using boilers will be restricted to 39, which was the number of units allowed to install baby boilers upto 31.3.2007.
3 The traditional katha bhatties will be allowed to operate at their current level of consumption of khairwood.
4 .. .. .. ..
5 .. .. .. ..
6 .. .. .. ..
7 The modified system of katha extraction through IBR Boilers will continue to remain seasonal. Katha will be extracted during the winter months traditional from 1 November to 31 March only, as is being done through the traditional Bhatti system.
8 On the basis of the production of Khairwood in the State, maximum quantity of khair heartwood allowed to be used by boiler units will be 3750 qtls = 5435 qtls khairwood with bark (2534 M.G or say 2500 MG) of khair in the season. If at any time the quantity of khair heartwood or equivalent khair wood with bark is found to be more than the permissible limit applicable at the time of inspection, its registration will be cancelled. .. .. .. ..”
Till the year 1975, Katha in the State of Himachal Pradesh was being manufactured only through traditional Katha Bhatties. In the year 1975, a mechanized unit, namely Shanker Trading Company, was established in the State of Himachal Pradesh. Thereafter, in the year 1992–93, certain units applied before the Industrial Purchase Approval and Review Authority (‘IPARA’)/Director of Industries for permission to establish mechanized units for manufacturing Katha. Out of fifteen applicant units, some were recommended for grant of approval, whereas proposals of others were rejected.
In sequel to the aforesaid approval and rejections, certain writ petitions were preferred in this High Court, both against granting permission as well as denial of permission to establish mechanized Katha units, including CWP Nos. 1445 of 1993, 1475 of 1993, 1489 of 1993, 1576 of 1993, 1590 of 1993, 1679 of 1993, 145 of 1994 and 611 of 1994. These writ petitions were decided by a Division Bench by a common judgment dated 30.12.1994, whereby petitions challenging grant of permissions were dismissed, whereas the orders denying permission were set aside.
The aforesaid judgment dated 30.12.1994 was assailed before the Apex Court in Civil Appeal No.8184-93 of 1995. The Apex Court, vide judgment dated 08.05.1995 in State of H.P. and others vs. Ganesh Wood Products and others, reported in (1995) 6 SCC 363, set aside the judgment of the High Court and remitted the matters to the High Court for fresh disposal of the writ petitions in light of judgment rendered by the Apex Court and the law applicable thereto.
In the aforesaid judgment, following directions were also passed by the Apex Court:-
“63.The Government of Himachal Pradesh shall make a survey and assess the approximate availability of khair wood in the year 1996 and the ensuing years. This shall be done through an expert body to be appointed by the government. The government shall be entitled to rely upon the expert committee's report and its own assessment arrived on the basis of such report before the High Court for its consideration as provided in this judgment.
64.No new industry/unit for manufacture of katha shall be approved by the government pending a final decision by the government on the question of availability of raw material in the years to come.”
Out of the aforesaid petitions, CWP No.1445 of 1993 was re-registered as CWP No.1301 of 2006, titled Yogendra Chandra vs. State of H.P. & others. Yogendra Chandra, who was the petitioner in the earlier CWP No.1445 of 1993, filed CWP No.1301 of 2006 espousing the cause of environmental degradation in the State of Himachal Pradesh on account of manufacture of Katha, alleging that, after passing of the judgment dated 08.05.1995 in the remanded matters, the State Government had acted in defiance of the mandate of the Apex Court by granting permission to certain units for manufacturing Katha. The said writ petition was decided vide judgment dated 07.04.2011.
The aforesaid writ petition was dismissed with observation that question of grant of permission of use of boilers in place of traditional Bhatties was never an issue before the Apex Court and traditional Bhatties were already functioning, and therefore, there had been no technical change in manufacturing process from traditional Handies to Boilers. However, in public interest, certain directions were issued, relevant whereof are as under:–
“52.We are of the view that in public interest, certain directions are also required to be issued. Though the Committee has proposed several conditions, it is not clear from any affidavit as to whether any Committee has gone into the impact of Khair tree plantation and availability of Khair wood after the functioning of the units for the last around four years. It is also not clear from the affidavits as to whether there have been periodic inspections in the units and as to whether they stick to the permit conditions as required by the technical order and other guidelines. Still further, as is clear from the report of the Committee itself, no scientific survey has been conducted as to the availability of Khair wood on the basis of the Khair tree plantation. The assessment, as above, has not been made only on the basis of felling. That is and that cannot be a scientific basis. Therefore, there will be a direction to the Committee constituted by the State as per the notification dated 15.2.2007 for the preparation of draft guidelines for regulating the working of Katha Bhatties in the State of H.P., to conduct scientific survey as to the availability of Khair wood in the State. This survey shall be completed within a period of six months. On the basis of the survey, if required, there shall be review of the licences already granted. Needless to say, in such an event, the affected parties shall be issued notice. There will also be a direction to the Committee to take steps to inspect all the licenced units and see whether they are functioning within the permitted conditions and if not, stringent action shall be taken in the cases of such units which have violated the conditions, be it even the cancellation of licences. Till the scientific survey, as above, is conducted, no new licence shall be granted to any Katha manufacturing unit either for starting afresh or for conversion of Handies to boiler system.”
In view of the aforesaid restraint order, no new licence was granted to any Katha manufacturing unit either for establishment afresh or for conversion of units to IBR boiler system. However, as no scientific survey was conducted within the period of six months granted by the Court, the existing position continued, whereby 40 traditional Bhatties, 39 semi-mechanized units and 3 fully mechanized units remained operational for manufacture of Katha in the State of Himachal Pradesh.
On 05.10.2015, the Apex Court in T.N. Godavarman Thirumulpad vs. Union of India, reported in (2016) 13 SCC 612 (2), in matters relating to wood-based industries (‘WBIs’), passed the following order:-
“127.On our request, Shri Harish Salve, the learned Amicus Curiae has given us a brief note on the matters pending before the Green Bench in different categories. He has also made certain suggestions for early disposal of those matters. He has exchanged the aforesaid note with Shri Ranjit Kumar, the learned Solicitor General of India, who represents the Union of India, Shri K.K. Venugopal, learned Senior Counsel, who appears for some of the parties.
128.The learned Amicus Curiae has classified the matters pending before the Green Bench under different heads such as: (i) matters relating to wood-based industries, (/i) matters relating to national parks/wildlife sanctuaries, (iii) matters relating to exemptions from the payment of the NPV, etc. etc.
129.We intend to take up the first category viz. matters relating to wood-based industries.
Category I: Matters relating to wood-based industries
130.We have heard Shri Harish Salve, learned Amicus Curiae, Shri Ranjit Kumar, learned Solicitor General of India, Shri K.K. Venugopal, learned Senior Counsel and other learned Senior Counsel/counsel. Accordingly, we pass the following orders:
130.1.The State Level Committees for Wood-based Industries ("SLCs") are, subject to the compliance with the prescribed guidelines and procedure, authorised to take decisions regarding the grant of licence/permission to the wood-based industries.
130.2.In each State/UT for which SLC has so far not been constituted, SLC under the chairmanship of the Principal Chief Conservator of Forests with a representative of the Ministry of Environment and Forest and Climate Change (MoEFCC) and an officer of the State Forest Department/Industries Department not below the rank of the Chief Conservator of Forests/equivalent rank will immediately be constituted.
130.3.MoEF is authorised to issue appropriate guidelines in conformation with the orders and directions issued by this Court and also the existing guidelines to SLCs relating to assessment of timber availability for wood-based industries and grant of licence/permission to the wood-based industries including addition of new machineries and also utilisation of amounts recovered from the wood-based industries and connected matters.
130.4.Any person aggrieved by the decision taken by SLC may file an appeal before MoEFCC seeking appropriate relief within 60 days' time. If, for any reason, any person is aggrieved by the orders so passed in the appeal, he may prefer an appropriate petition/application/appeal before the appropriate forum/court for grant of appropriate relief(s).
131.We also permit MoEFCC to condone the delay, if any, in filing an appeal, if sufficient cause is made out by the applicant(s)/appellant (s).
132.The amounts lying with the respective State Forest Departments (recovered from wood-based industries) will be utilised for the purpose of afforestation only.
133.The respective State Forest Departments will intimate the amount(s) spent by them for afforestation purpose to MoEFCC at the earliest.
134.With the aforesaid observations and directions, we dispose of the interlocutory applications/matters specified in Annexure I to the note supplied by Shri Harish Salve, learned Amicus Curiae.”
In compliance with the aforesaid directions, the Ministry of Environment, Forest and Climate Change (Survey and Utilization Division) issued the Wood-Based Industries (Establishment and Regulation) Guidelines, 2016, vide Resolution dated 11.11.2016, which was amended vide Resolution No.11.09.2017. The relevant portion of the Resolution dated 11.11.2016 reads as under:-
“1. Short Title and commencement.
(i)These guidelines shall be called the Wood-Based Industries (Establishment and Regulation) Guidelines, 2016.
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2. Definition.
(i)In these guidelines, unless the context otherwise requires –
(a)xx xx xx
(b)xx xx xx
(c)'License' means a license granted under these guidelines.
Amended as :-
'License' means a license granted under the rules notified by a State/UT in pursuance of these guidelines.
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(h)'State Level Committee' means a Committee Constituted by the State Government under Para 3 (2) of these guidelines.
Amended as :-
'State Level Committee' means a committee constituted by the State Government under Para 3 (2) of these guidelines.
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(k)'Wood Based Industry' means any industry which processes wood as its raw material (Sawmills/veneer/plywood/pulp or any other form such as sandal, katha wood etc.). It includes a mill but does not include a furniture unit.
Amended as :-
'Wood Based industry' means any industry which processes wood as its raw material (Saw mills/veneer/plywood or any other form such as sandal, katha wood etc.).”
In the aforesaid Resolution, Clause 4 pertaining to powers and functions of the State Level Committee (‘SLC’), was amended as under:-
“4. Powers and functions of the State Level Committee.
The State Level Committee shall:-
(i)Assess the availability of timber for wood based industrial units in the State/UT every five years.
(ii)Assess quantity of different raw material requirement for wood based industrial units which may be sustainably harvested from trees outside forest areas in the State/UT.
(iii)Assess annual requirement of timber and other forest produce in the domestic markets in the State.
(iv)Maintain a database of timber and other raw materials utilized by each wood based industrial unit permitted to establish and operate in the State/UT during each financial year.
(v)Approve appropriate locations for setting up of wood based industrial units.
(vi)Approve the name of wood based industrial units which may be considered for grant of fresh license or enhancement of the existing licensed capacity in case the committee is satisfied that timber is available legally for the said new Wood Based Industries (such as Trees outside forest, Forests etc.).
(vii)The State Level Committee will ensure that the amount lying with the respective State Forest Departments (recovered from Wood Based Industries) will be utilized for the purpose of afforestation only.
(viii)Examine and make appropriate recommendations on any other matter referred by the State Government or the Ministry of Environment, Forest and Climate Change.
Amended as:-
3.The entries under Para- 4 of these guidelines are substituted with the following:-The State Level Committee (SLC) shall:--
i.assess the availability of timber in the state by way of appropriate study on demand and supply as and when it decides. SLC shall devise suitable mechanism for sustainable use of timber in a way that does not affect the forests of the area adversely.
ii.approve the name of wood based industries which may be considered for grant of fresh license or enhancement of the existing licensed capacity in case the SLC is satisfied that timber is available legally for the said new Wood Based Industries (such as Trees outside forest. Forests etc.).
iii.ensure that the amount lying with the respective Stute Forest Departments (recovered from Wood Based Industries) is utilized for the purpose of afforestation only.
iv.examine and make appropriate recommendations or any other matter referred by the State Government to the Ministry of Environment. Forest and Climate Change.”
In the aforesaid Resolution, Clause 8 pertaining to grant, renewal and revocation of a license to a wood-based industry, was amended as under:-
“8. Grant, renewal and revocation of a license to a wood based industry:
(i)No license to a wood based industrial unit shall be granted or renewed without obtaining prior approval of the State Level Committee.
(ii)No wood based industrial unit shall be established/ operate in a State except under and in accordance with the license granted by an officer authorized by the State Government in this regard (Preferably DCF/DFO or equivalent).
(iii)The State Level Committee may maintain a separate list of wood based industries working solely on the timber imported from international market. The license to such industries shall specifically contain a condition to the effect that such units shall not be allowed to use timber produced in country. If in future, the said units want to use timber produced in the country on account of abundant availability they will seek specific permission from SLC to do so.The SLC will ensure that the interests of the units using domestic produce are protected. Fresh licenses can be granted by the Committee for units which operate solely on imported raw material irrespective of the result of wood availability assessment in the State/UT.
(iv)The license granted to a wood based industry shall remain valid for five years, from the date of such issue or renewal of License. However, notwithstanding anything contained in these guidelines, the Licensing Authority may, where there are reasons to believe that the Licensee is operating the wood based industry in contravention of the provisions of these guidelines or conditions of License or any Rules framed by the State Government or is in activities prejudicial to the interest of forest conservation or public interest, at any time after giving one month notice, revoke the license granted to such wood based industry.
(v)Application for renewal of license granted to a wood based industrial unit shall be made at least three (3) months before the expiry of validity period.
(vi)Transfer of license on sale/succession etc shall be done only with the approval of State Level Committee.
Amended as :-
The entries under Para-8 of the Guidelines are substituted with the following:-
i.No license to a wood based industry shall be granted or renewed without obtaining prior approval of the SLC. However, a SLC may delegate the power of renewal of license to a wood based industry to the Divisional Forest officers of the concerned Forest Divisions.
ii.Following industries/processing plants not using round logs of domestic origin or operating without a hand saw or re-saw or circular saw of more than thirty centimetre diameter shall not require license. Industries/processing plants which use:
a. sawn timber, cane, bamboo, reed, plywood, veneers or imported wood, procured from legitimate sources.
b. block board, MDF or similar wood -based products, procured from legitimate sources
c. round log/timber from species declared as agro-forestry/agricultural crops and/or exempted from the purview of the jelling and transit regime in the concerned state/UT, and procured from legitimate sources
However, SLC of the concerned State may allow installation of circular saw of diameter upto 60 centimetre in such industries having specialized requirement. Such industries shall be registered with the Forest Department of the concerned state/UT and shall be regulated, details of which are to be prescribed by the concerned state/UT.
iii.Transfer of license on sale/succession etc shall be done only with the approval of SLC.”
In compliance of Guidelines dated 11.11.2016, as amended vide Resolution dated 11.09.2017, Government of Himachal Pradesh constituted the State Level Committee vide notification dated 18.11.2017.
Certain persons, including respondent No.7-Mast Mohammad, who were carrying on Katha manufacturing through traditional means, had preferred CWP No.1942 of 2018 titled ‘Neelaksh Lakhanpal & Ors. vs. State of Himachal Pradesh & Anr.,’ seeking directions to the respondents to permit them to convert their traditional units into mechanized/semi-mechanized units.
On 11.07.2023, 01.08.2023, 28.08.2023 and 12.09.2023, present petitioner in CWP No.10525 of 2025, preferred representations to the Hon’ble Chief Minister and Additional Chief Secretary (Forest), Himachal Pradesh, praying for withdrawal of restrictions imposed under Annexure-A under amended Rule 4 vide Notification dated 29.04.2008 upon IBR Boilers and for permitting such units to run at par with other industrial units. It was also prayed that, till such restrictions were withdrawn, the ban on export of Khair wood outside the State should not be lifted.
Thereafter, Katha Manufacturing Association filed CWP No.2570 of 2024 titled ‘Katha Manufacturing Association & Ors. vs. Union of India & Ors.,’ inter alia, other reliefs, including seeking quashing of certain portion of Notification dated 29.04.2008, which were restricting trade and business by Katha bhatties. The Division Bench of this Court vide judgment dated 26.03.2024, taking into consideration that some of petitioners had submitted representation dated 12.09.2023 to the Hon’ble Chief Minister of Himanchal Pradesh as well as Additional Chief Secretary (Forest), highlighting their grievances and pointing out the necessity for modifying the notification, and observing that petitioners can approach the SLC with similar representations to address their grievance, had decided the petition directing the petitioners to submit their representations to the SLC and and the SLC was directed to consider the same within two months and communicate its decision to them.
In sequel to the aforesaid order dated 26.03.2024 passed in CWP No.2570 of 2024, the petitioner, in the capacity of Pradhan of Laghu Katha Udyog, submitted representations to the Principal Chief Conservator of Forests-cum-Chairman, SLC on 16.04.2024 and 02.05.2024. Vide communication dated 16.05.2024, he was directed to attend personal hearing on 10.06.2024, whereafter the proceedings of the meeting held on 10.06.2024 were communicated to him vide communication dated 24.06.2024.
During pendency of CWP No.1942 of 2018, respondent No.7-Mast Mohammad also preferred CWP No.5967 of 2024 titled ‘Mast Mohammad vs. Union of India & Ors.,’ intending to convert his traditional Katha Bhatti into Katha Bhatti using IBR boilers at par with similar permission granted to certain Katha Bhatties with submission that he had already submitted representation to the respondent-State.
Aforesaid CWP No.5967 of 2024 was decided by a Division Bench of this Court on 28.06.2024, permitting the petitioner therein to submit a detailed representation before the competent authority regarding his grievance, with direction to the competent authority, upon receipt of such representation, to decide the same within two weeks and communicate its decision to the petitioner.
Respondent No.7-Mast Mohammad had submitted his representation on 29.06.2024 in pursuance of the order dated 28.06.2024 passed in CWP No.5967 of 2024.
Representations submitted by petitioners and respondent No.7-Mast Mohammad in pursuance of orders passed in CWP Nos.2570 and 5967 of 2024, along with other similar representations, were placed before the SLC in its 15th meeting held on 04.07.2024 for consideration.
The SLC in its 15th meeting held on 04.07.2024, after taking into consideration the annual Khairwood availability and consumption in the State as per field data (Forest Department Committee, 2007) in Table 1; Potential Khairwood Production as per TOF-R (Forest Survey of India, 2024) in Table 2; Annual Khairwood availability and consumption in the State as per field data collected in 2024 in Table 3; Comparative statement of Khairwood availability w.r.t. 2007, 2024 & (TOF-R) Study by FSI, in Table 4; on the basis of inference drawn from the critical analysis of the data determining Current Annual average Khairwood Availability in the State in Table 5; and Maximum annual potential productivity (tentative), representation of Himachal Katha Manufacturing Association through its President, i.e. the petitioner (in CWP No.10525/25) was considered in Agenda No.15.8. Relevant portion thereof is as under:-
“Agenda item No. 15.8: In continuation to previous SLC meeting dated 08.05.2024 agenda item No. 14.5.2:
"Discussion on enhancement of installed capacity and
upgradation of machinery of IBR A boilers. Representation by the Himachal Katha Manufacturing Association through its President Shri Ashok Kumar response to CWPNo. 2570/2024 titled as Katha Manufacturing Association and others (order passed dated 26.03.2024)"
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1. Enhancement of installed capacity.
The Association presented its case for enhancing the installed capacity on account of opening up of green felling in selected forest divisions and import of khair wood from other states. The main demand is as follows:
"The restriction of 3750 Qtls khair wood imposed on our IBR boilers may kindly be withdrawn"
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xx xx xx
Decisions:
In view of above discussion the availability of khair wood production in the states has shows substantial increase.
SLC is of considered opinion that limits prescribed for Khatta Bhatties with IBR boilers can be easily enhanced from the current capacity on account of increased availability of khair wood in the state considering current level of khair wood production in the state of HP and also, on the basis of TOF-R report submitted by Forest Survey of India in 2024. the Khairwood based industries in the state will be regulated as following conditions:
a)On the basis of the Current Annual average Khairwood Availability in the state (Table 5), Kattha bhattis with IBR boilers will be allowed to process Khairwood with bark in the range between 5435 to 7500 quintals in entire year sourced from within the state of Himachal Pradesh.
b)There would be no restriction on import of Khairwood from outside the state.
c)Each Kattha Bhatti with IBR boilers requires to register its unit afresh with the concerned DCF/DFO after paying a processing fee of Rs.1 lac.
2. Enhancement in time schedule of operation:
Presently the Katha Bhatties using IBR Boilers are allowed to operate from November to March. The President Katha Association demanded enhancement in time limit on following account:
1)For regular maintenance of machinery.
2)For processing Khair Wood that can be imported from outside the State of HP.
Decision taken
In view of the SLC decision above, IBR boilers may be allowed to operate throughout the year as it is an industrial activity capable of running throughout the year.”
In the same meeting in Agenda No.3, representation of respondent No.7-Mast Mohammad was considered by taking into consideration the comparison between traditional system and mechanized system pointed out by the petitioner with the prayer and arrived at a decision as under:-
“Prayer of applicant:
i)Offending part of the notification dated 29.04.2008 restricting trade and business of katha bhatties in the State of H.P. may kindly be modified in view of the subsequent events.
ii) The representation may kindly be allowed to convert traditional katha bhatties into IBR Boiler as per permissions are granted to other 39 traditional katha bhatties to convert into IBR Boilers.
Decision taken:
After detailed discussion, SLC is of the considered view that the present mode of operation of traditional Kattha Bhattis is highly inefficient and poses a direct threat to the forests and wildlife through environmental hazards. Such traditional units are energy inefficient with limited production efficiency. Moreover, they pose direct occupational hazards to the labor employed due to lack of safety provisions. In the context of a) increased Khairwood availability in the state as per above, and to promote secure, safe and efficient Kattha extraction and processing in the state, SLC decides the following in the case of Sh. Mast Mohammad:
a)To promote technical upgradation and to ensure environmentally safe and economically efficient Kattha extraction and processing, henceforth, all traditional Kattha Bhattis will have to be converted to Kattha Bhattis with IBR boilers. This will ensure uniformity as well as promote security of the unit through Inspector, Boiler to prevent any possible industrial damage or loss to the labor.
b)Each traditional Kattha Bhatti which will be converted to Kattha Bhattis with IBR boilers requires to register its unit afresh with the concerned DCF/DFO after paying a processing fee of Rs. 1 lac.
c)Each such newly registered Kattha Bhattis with IBR boilers will be allowed to process Khairwood with bark in the range between 5435 to 7500 quintals in entire year sourced from within the state of Himachal Pradesh.
SLC is also of the considered view that as other traditional Kattha Bhattis are similarly situated as in the case of Sh. Mast Mohammad, any owner of other traditional Kattha Bhattis can convert to Katta Bhatti with IBR boiler with the same conditions as listed above (a to c).”
Respondent No.7-Mast Mohammad was directed by Principal Chief Conservator of Forests (HoFF)-cum-Chairman, State Level Committee (SLC), vide communication dated 18.07.2024, to attend his office.
On 29.07.2024, minutes of the meeting of the SLC held on 04.07.2024 were approved by Principal Chief Conservator of Forests (HoFF)-cum-Chairman, SLC.
In the aforesaid backdrop, the Principal Chief Conservator of Forests, Himachal Pradesh, in compliance with order passed in CWP No.2570 of 2024, passed order dated 30.07.2024 (Annexure R-7/5) by considering and deciding the representation of the petitioner in terms of the decision taken by the SLC in its meeting held on 04.07.2024.
Similarly, in pursuance of the order passed in CWP No.5967 of 2024, the representation of respondent No.7-Mast Mohammad was also considered and decided vide separate order dated 30.07.2024 (Annexure R-7/6) in terms of decision taken by the SLC in the said meeting.
Thereafter, Principal Chief Conservator of Forests, vide letter dated 31.07.2024 addressed to Principal Secretary (Forest) to the Government of Himachal Pradesh, submitted a proposal seeking amendment of Notification dated 29.04.2008 governing the regulations of Katha Bhatties and Katha Bhatties using IBR Boilers, particularly with respect to Annexure-A thereof, as per decision taken by SLC in its meeting held on 04.07.2024 approved on 29.07.2024 and endorsed in two even dated office orders issued on 30.07.2024.
The aforesaid communication was considered by the Government on 07.10.2024 and 15.10.2024 through Additional Chief Secretary (Forest) to Government of Himachal Pradesh, and vide communication dated 16.10.2024, requisite information, as discussed in the meeting, was sought from Principal Chief Conservator (HoFF), Shimla.
In response to aforesaid communication dated 16.10.2024, the Principal Chief Conservator of Forests (HoFF), vide letter dated 04.11.2024, submitted the requisite information, comments and detailed remarks along with Annexure-I, containing the existing provisions, proposed amendments and justification for the proposed amendments.
In the meanwhile, on 26.09.2024, petitioner preferred an appeal before the Deputy Director General of Forests-cum-Appellate Authority, Ministry of Environment, Forest and Climate Change, Regional Office, Chandigarh, as provided under Clause 9(i) and (ii) of the Guidelines, 2016, assailing the decision dated 04.07.2024 taken by the SLC on certain points.
In the interregnum, on 26.10.2024, thirteen applicants, including Neelaksh Lakhanpal and others, who were petitioners in CWP No.1942 of 2018, engaged in manufacturing of Katha through traditional Bhatties, submitted representation to the Principal Chief Conservator (HoFF) with prayer to consider and decide their representation, in view of order dated 30.07.2024 passed by Principal Chief Conservator (HoFF) in compliance of judgment dated 28.06.2024 passed in CWP No.5967 of 2024.
On 09.12.2024, CWP No.1942 of 2018 was also decided by learned Single Bench of this High Court by taking into consideration order dated 28.06.2024 passed in CWP No.5967 of 2024, directing the competent authority to consider and decide the representations of the petitioners therein in terms of order dated 30.07.2024 passed by competent authority, i.e. Principal Chief Conservator of Forests, Himachal Pradesh.
The appeal filed by petitioner (in CWP No.10525/2025) before Appellate Authority on 26.09.2024, against decision of SLC dated 04.07.2024, was not decided within the period of sixty days, as prescribed under the Guidelines. Consequently, the petitioner approached this Court by filing CWP No.15763 of 2024, titled Ashok Kumar vs. Union of India and others, which was decided on 20.12.2024, whereby the Appellate Authority was directed to decide the appeal within four weeks.
In pursuance of the order dated 09.12.2024 passed in CWP No.1942 of 2018, petitioner-Neelaksh Lakhanpal and others also submitted separate representations on 27.12.2024 for consideration of their cases in accordance with decision of the SLC dated 30.07.2024 and in terms of the directions passed by this Court vide order dated 09.12.2024 in CWP No.1942 of 2018.
Vide communication dated 03.01.2025, petitioner-Neelaksh Lakhanpal was requested to attend personal hearing on 04.01.2025 by Principal Chief Conservator of Forest (HoFF).
Pending consideration representations preferred by the petitioners in CWP No.1942 of 2018, Principal Chief Conservator of Forest (HoFF) vide letter No.Ft 783-53(Mgt) Katha Bhatti Vol.IX dated 04.01.2025 submitted final proposal of necessary amendments to Government for approval.
Vide office order No.11/2025 dated 06.01.2025, the Principal Chief Conservator of Forests, after taking into consideration the decision of the SLC dated 04.07.2024, concluded that the petitioners in CWP No.1942 of 2018 could convert their traditional Katha Bhatties into Katha Bhatties using IBR Boilers after fulfilling all codal formalities, as prescribed by the SLC in its meeting held on 04.07.2024, subject to Government approval.
Thereafter, on 06.01.2025 itself vide letter No.Ft 42-1548/2018(Mgt)Neelaksh Lakhan Pal./3339 dated 06.01.2025, the Principal Chief Conservator of Forest, had communicated the decision taken vide order No.11/2025 dated 06.01.2025 along with copy thereof with request to carry out necessary amendment as proposed vide communication dated 04.01.2025.
After undertaking the aforesaid exercise, Government of Himachal Pradesh, Department of Forest, vide notification dated 15.03.2025, amended Annexure-A of Notification dated 29.04.2008 regarding conditions for regulating working of traditional Katha Bhatties and Katha Bhatties using IBR boilers with revised Annexure A-I, relevant conditions whereof are as under:-
“1.Presently, the number of traditional katha bhatties allowed to operate in H.P. are 40. All: these traditional Katha Bhattis will have to be converted to Katha Bhatti with /BR boiler subject to payment of processing fee.
2.Presently, the number of Katha units using IBR boilers are 39, which was the number of units allowed to install baby boilers upto 31.03.2007.
2(a) The total.number of katha bhattis with IBR boilers will remain fixed at 79.
3.All the boilers will have/to be registered with the Chief Inspector of Boilers of the State.
4.Each such newly registered Kattha Bhattis with IBR boilers will be allowed to process Khairwood with bark in the range between 5435 to 7500 quintals in entire year sourced from within the state of Himachal Pradesh. If at any time the quantity of khair heartwood of equivalent khair wood with bark is found to be more than the permissible limit applicable at the time of inspection, its registration will be cancelled.”
In pursuance of the decision taken by the SLC on 04.07.2024 and Notification dated 15.03.2025 issued by the Government of Himachal Pradesh vide Registration No.3/2025-26, M/s Priya Katha Udhyog, a proprietary concern of petitioner-Ashok Kumar, was registered as a depot for extraction of Katha through Katha Bhatti using IBR Boiler under the provisions of the Timber Act, 1968 and the Rules framed thereunder for a period of one year, on year-to-year basis, for the year 2025–2026, i.e. from 01.04.2025 to 31.03.2026. The said was granted after deposit of Rs.1,000/- as registration fee, realized on 07.04.2025 vide HIMGRAN No.A25D189232 dated 07.04.2025 and Rs.1,00,000/- as processing fee, realized vide Demand Draft No.668325 dated 29.03.2025, in terms of the recommendation of the SLC, thereby permitting the petitioner to process Khairwood with bark allowed in the range of 5435 to 7500 quintals throughout the year, sourced from within the State of Himachal Pradesh.
On 30.04.2025, the appeal preferred by the petitioner (in CWP No.10525/2025) against decision dated 04.07.2024 of SLC was dismissed by Appellate Authority.
After rejection of appeal on 30.04.2025, petitioner in CWP No.10525 of 2025 has preferred this writ petition on 01.07.2025, by assailing the Notification dated 29.04.2008 to limited extent with prayer to set aside decision of the SLC taken with respect to Agenda No.3 in this meeting held on 04.07.2024 and also to set aside the order dated 30.04.2025 passed by the Appellate Authority. Subsequently, challenge has also been laid to Notification dated 15.03.2025 issued by respondent-State to amending Annexure-A appended to Notification dated 29.04.2008.
The petitioner in CWP No.14736 of 2025 has also preferred this petition on similar lines by filing the same on 10.09.2025.
B. SUBMISSIONS OF THE PETITIONERS:
In CWP No.10525 of 2025, as also noticed supra, Notification dated 29.04.2008 has also been assailed on the ground that it is arbitrary and discriminatory to the extent that it imposes restrictions upon Katha Bhatties using IBR Boilers without there being any intelligible differentia, and, therefore, it is violative of Article 14 as well as Article 19(1)(g) of the Constitution, because it is not reasonable restriction, as mentioned in Article 19(6) of the Constitution.
The remaining grounds urged in both petitions are almost identical.
It been contended on behalf of petitioners that decision of the 15th meeting of SLC held on 07.04.2024 related to Agenda No.3 and also the order dated 30.04.2025 passed in appeal by Appellate Authority, are arbitrary, inasmuch as the SLC exceeded its jurisdiction by taking the impugned decision.
Referring the directions issued by the Apex Court in T.N. Godavarman Thirumulpad vs. Union of India, reported in (2016) 13 SCC 612 (2), it has been submitted that neither in the directions of the Apex Court nor in the Guidelines framed by Ministry of Environment, Forest and Climate Change, Government of India, there is any power to SLC to issue direction for conversion of category of wood-based industry.
It has been further submitted that conversion is a legislative function in terms of Timber Act, 1968 read with Timber Rules, 1969, as amended from time to time, but ignoring the same SLC has passed its impugned decision, which is beyond jurisdiction and the said fact has also been ignored by Appellate Authority while dismissing the appeal preferred by the petitioner.
It has been submitted that the decision of the SLC dated 04.07.2024 relating to Agenda No.3, permitting and directing the traditional Katha Bhatties to be converted into Katha Bhatties using IBR Boilers, would amount to repealing the sub-classification of traditional Katha Bhatties and Katha Bhatties using IBR Boilers introduced under the Timber Rules, 1969, as amended in 2008, and would also amount to abolishing the categorization of wood-based industries depots in terms of Rule 2 of the Timber Rules, 1969. Whereas, the SLC does not have any power to repeal any legislative Act, dehors the validity of reasons for the same, and therefore, it amounts to abuse of process of law, and the same is arbitrary and violative of Article 14 of the Constitution.
It has been submitted that, while taking the decision under Agenda No.3 in the SLC meeting dated 04.07.2024, the SLC has taken a decision in rem by making this decision applicable to all traditional Katha Bhatties without there being any representation on their respective sides, but there was only one representation of respondent No.7, and therefore, in terms of direction of the Apex Court and the Guidelines, the SLC has no power to initiate suo motu proceedings and pass such general directions, as has been passed with regard to Agenda No.3 in impugned decision dated 04.07.2024.
It has been submitted that the power to issue directions in the nature of mandamus vests only with the High Court or the Apex Court, whereas the SLC neither was nor is vested with any such authority to issue directions mandating that all traditional Katha Bhatties be converted into Katha Bhatties using IBR Boilers and, therefore, the impugned decision of the SLC is without jurisdiction and authority of law.
It has been submitted that order dated 30.04.2025 passed in appeal is a non-speaking order, having been passed without proper discussion on the validity and legality of the impugned decision taken by the SLC.
It has been advocated that Guidelines issued by the Ministry of Environment, Forest and Climate Change, Government of India, provides that function of SLC is to assess the availability of timber in the State and, while it enhanced its capacity, to satisfy itself that timber has to be available for future, and other wood-based industries, and in present case, on one hand the SLC has enhanced the capacity of Katha Bhatties using IBR Boilers to 7500 quintals, but by converting all traditional Katha Bhatties to Katha Bhatties using IBR Boilers, there would be an implied increase of the capacity of consumption of Khair wood, which would lead to ecological imbalance, and also would prejudice the petitioners, who have set up and taken license for Katha Bhatties using IBR Boilers, wherein this act is contrary to the scope of function, prescribed in the Guidelines for SLC.
It has been submitted that as SLC has no power to convert or recommend for conversion under existing Rules, not only decision of the SLC, but also the subsequent conversion order, recommendation and all consequential action, including amendment of relevant provision of law, are bad in law and suffers from vice of excessive delegation, and therefore, impugned amendment vide notification dated 15.03.2025, is also not sustainable.
It has been submitted the action of Principal Chief Conservator of Forest, Himachal Pradesh, in converting Katha Bhatties into Katha Bhatties using IBR Boilers, is arbitrary, and he has taken such decision in January, 2025, despite pendency of the appeal, in haste and it shows arbitrariness in the action of Principal Chief Conservator of Forest, Himachal Pradesh.
It has been submitted that perusal of Section 3 of the Timber Act, 1968 demonstrates that it was and is incumbent upon the Government to publish the draft amendment in the Official Gazette, invite objections and suggestions, and thereafter publish the final amendment. However, according to the petitioners, the said mandatory exercise has never been undertaken while issuing Notification dated 15.03.2025 and, therefore, the action of the State is arbitrary and contrary to Section 3 of the Timber Act, 1968.
It has been submitted that vide amendment Timber Rules, 2008, respondent-State has provided setting of two type of sale depots, i.e. Katha Bhatties and Katha Bhatties using IBR Boilers, whereas Annexure-A incorporated by Timber Rules, 2008, provides only regulatory conditions and nothing more, as stated in the Timber Rules as amended in 2008. Though vide impugned notification, respondent-State has sought to amend only conditions and nothing more, however, in the guise of amending the condition, respondent-State has sought to delete the ‘sale depot’, which it incorporated through amendment Timber Rules, 2008, but the said deletion is being carried out without any amendment, which is impermissible in law.
It has been submitted that, while issuing the impugned Notification dated 15.03.2025, there was no independent application of mind by the Executive, inasmuch as the only justification for such amendment was the implementation of the impugned decision of the SLC in the case of Mast Mohammad dated 30.07.2024, whereas, according to the petitioners, the decision of the SLC itself was and is without jurisdiction and, therefore, the impugned Notification, which seeks to implement a non est decision, is also bad in law.
It has been submitted by learned counsel that it is evident from the proceedings of the meetings and subsequent office orders passed by Department of Forest through Principal Chief Conservator of Forest, Himachal Pradesh, and correspondence between the Forest Department and the Government as well as reason for issuing impugned notification dated 15.03.2025, it was not the recommendation of the SLC, but it was the decision of the SLC, which has been implemented by the State without applying the mind by considering it as binding decision, whereas SLC was a recommendatory body, was not competent to take impugned decision, and the decision was to be taken by the competent authority by applying its independent mind.
It has been submitted that the issuance of Notification dated 15.03.2025 when decision of SLC was sub judice before Appellate Authority in terms of the Guidelines, much prior to passing of decision dated 30.04.2025 passed by Appellate Authority, was also impermissible under law.
It has been submitted that, throughout the impugned action, the proceedings of the SLC have been referred to and treated as a “decision” rather than a “recommendation,” thereby demonstrating that the SLC exceeded its recommendatory jurisdiction.
It has been submitted that power and role assigned to the SLC was only to ascertain availability of Khair wood after undertaking the exercise on the basis of data available from survey, and that the SLC was not empowered to recommend conversion and as it has no authority to recommend conversion, the impugned decision regarding conversion of Katha Bhatties into Katha Bhatties using IBR Boilers is usurpation of power, which vests in the legislature, and therefore, decision of the SLC is illegal.
It has further been submitted that Annexure A-I has been notified solely on the basis of the decision of the SLC, without any independent justification or due consideration by the competent authority.
It has further been submitted that the conditions notified in Annexure-A appended to the Rules after amendment of Rule 4 form part of the Rules themselves and, therefore, the procedure prescribed for amendment of the Rules was required to be followed. According to the petitioners, Notification dated 15.03.2025 has been issued without adopting the prescribed procedure.
It has been submitted that it is settled law that where an Act prescribes that something is to be done in a particular manner, the concerned authority is bound to follow that prescribed procedure alone, and any deviation therefrom would render the decision or action illegal and non est in the eyes of law.
C. SUBMISSION OF RESPONDENT-STATE:
Learned Advocate General has submitted that the issue involved in the present case pertains to regulation of wood-based industries, specifically Katha processing units in the State of Himachal Pradesh, under the overarching framework established by the Apex Court in T.N. Godavarman Thirumulpad vs. Union of India, reported in (2016) 13 SCC 612 (2), and the Guidelines issued by the Ministry of Environment, Forest and Climate Change, Government of India, in pursuance thereto.
It has been further submitted that the impugned decision regarding conversion of traditional Katha processing units into Katha Bhatties using IBR Boilers was taken on the basis of recommendations of the SLC submitted to the State Government, but only after due consideration, queries and responses exchanged between the Government and the Forest Department, culminating into Government Notification. According to the respondent-State, the underlying objective was to align the functioning of Katha processing units with the National mandate of linking processing capacity to sustainable availability of raw material, thereby preventing ecological degradation and promoting responsible utilization of forest produce.
With the aforesaid submissions, learned Advocate General has contended that the petitioners have failed to present a complete and accurate picture of the facts, the regulatory process and the governing principles underlying regulation of wood-based industries and the proposed conversion of traditional Katha Bhatties into Katha Bhatties using IBR Boilers.
It has been submitted that the decision taken by the SLC in its 15th meeting held on 04.07.2024 under Agenda No.3 was essentially a recommendation to the State Government concerning conversion of traditional Katha Bhatties into Katha Bhatties using IBR Boilers, stemming from the need to address multiple pending applications and to bring such units within an effective regulatory framework, and, therefore, it was not a final unilateral order directing conversion in rem. The State Government, according to the respondent-State, independently considered the said recommendation, raised queries and sought clarifications from the Forest Department regarding feasibility and implications thereof, including aspects relating to raw material availability and regulatory compliance.
It has been submitted that the decision to permit conversion of traditional Katha Bhatties into Katha Bhatties using IBR Boilers, subject to certain conditions, was and is ultimately embodied in the Government Notification issued after the aforesaid process of consideration and deliberation, and that such decision was not taken solely on the basis of the individual case of respondent No.7, but also in view of several pending representations received from similarly situated traditional Katha Bhatti owners seeking such conversion/ modernization.
It has been submitted that the orders passed by the Apex Court and Guidelines issued by the State, particularly Clause 4(i) of the Guidelines, authorize the SLC to devise suitable mechanisms for sustainable use of timber in a manner that does not adversely affect the area of forests.
It has been advocated on behalf of the respondent-State that modernization through IBR Boilers, which are significantly more efficient in extraction of Katha from Khairwood as compared to traditional methods and which often utilize wood chips, potentially sourced from non-forest areas or processing residue, as fuel, is a step towards more efficient raw material utilization and minimization of waste of valuable Khair resource. Such conversion, according to the respondent-State, would contribute not only to sustainable use of primary raw material, but also in increasing the overall processing capacity. It has been submitted that this crucial aspect has been entirely omitted by the petitioners while presenting the facts.
It has been submitted that after taking into consideration, the recommendations of SLC, Government took a policy decision, which fundamentally aimed at bringing unregulated units within regulated units framework by attempting to balance economic activity with ecological mandate of sustainable resource use, guided by the principles emanating from the Apex Court, such as principle of sustainable development and precautionary principle. It has been further submitted that precautionary principal requires anticipatory action to be taken to prevent harm, and it is not always necessary that there should be direct evidence of harm to the environment.
Referring Scientific Assessment Report, placed on record as Annexure R-6/1 with reply of the State, it has been submitted that in compliance with the mandate of the Apex Court and the applicable Guidelines framed by the Ministry of Environment and Forest and Climate Change, prior to recommending the framework for conversion of traditional Bhatties into IBR Boiler units, the Forest Department conducted a thorough scientific assessment of availability of Khairwood in the State and the SLC's recommendations as well as the subsequent Government notifications were made after due consideration of finding of this assessment, aiming to ensure that any permitted conversion and resulting capacity remained aligned with sustainably available raw material.
It has been submitted that the recommendations and decision of the SLC is in consonance with the order passed by the Apex Court on 05.10.2015 in T.N. Godavarman Thirumulpad vs. Union of India, reported in (2016) 13 SCC 612 (2).
It has been submitted that in Clause 4(i) of the Guidelines 2016, amended in 2017, explicitly requires the SLC to devise a suitable mechanism for sustainable use of timber in a manner that it does not adversely affect the forest of the area by assessing the availability of timber in the State by way of appropriate study on demand and supply.
It has been submitted that the SLC was constituted for a specific purpose, which includes, inter alia, the function of assessing timber availability and regulating grant of license and enhancement of capacity strictly on the basis of sustainable raw material availability and the impugned decision/recommendation of the SLC is in consonance with such functions.
In order to substantial the plea that several pending applications received from traditional Katha Bhatties owners seeking permission for conversion into IBR Boilers units, copies of such applications/requests have been placed on record along with reply as Annexure R-6/2 to R-6/14. Referring these applications, it has been submitted that the SLC considered the representation of respondent No.7-Mast Mohammad in a broader context so as to devise a framework applicable to all similarly situated units seeking modernization through IBR boilers. It has been submitted that these applicants had already filed CWP No.1942 of 2018 in the year 2018 for the same purpose.
It has been submitted that it is not a mandamus issued in rem, but it is a decision taken after considering the survey report, which has already been referred by the SLC while considering Agenda No.15.8, wherein data received from field agencies have been reproduced in various tables, and therefore, the SLC has not exceeded its jurisdiction, as it has recommended/taken decision by addressing the numerous pending requests with reference to availability of the Khair wood, which was available with the committee in that meeting. Therefore, it has been submitted, the decision taken by the SLC under Agenda No.3 is not a legislative act in rem, but a recommendation or proposal, forwarded to the State Government within a regulatory framework.
It has been submitted that it is not a case where recommendations or decision of the SLC, in the shape of decision under Agenda No.3, were the sole basis for issuance of Notification dated 15.03.2025. Rather, on the basis of decision of the SLC, the Principal Chief Conservator of Forest, Himachal Pradesh, submitted the matter for consideration of the Government, whereafter due deliberations were undertaken, as is evident from the record and other communications placed on record, and only thereafter the impugned notification was issued after subjective satisfaction of the competent authority.
It has been further submitted that Appellate Authority while deciding the appeal preferred by petitioner (in CWP No.10525 of 2024), has also duly considered the prayers of the petitioner and the proceedings of the SLC, and after taking into account the entire material before it, has dismissed the appeal. Therefore, it has been contended that the order passed by the Appellate Authority, in no manner, can be said to be a non-speaking order passed without assigning reasons.
Learned Additional Advocate General has further submitted that, in no manner, decision of the respondents is violative of Article 19(1)(g) of the Constitution, inasmuch as the conditions framed for regulating Katha Bhatties, which are wood-based industries, constitute reasonable restrictions in public interest aimed at conserving forests, preventing illegal felling and ensuring sustainable resource management.
It has been submitted by learned Advocate General that, vide notification dated 15.03.2025, there has been no amendment to the Rules themselves, but only the regulatory terms contained in Annexure-A have been reframed, and therefore, there was no necessity for pre-publication of Annexure A-I as is required for amendment of the Rules. In the alternative, it has been submitted that, in case it is considered that the pre-publication of Annexure A-I was required, even then failure in pre-publication will not render Notification dated 15.03.2025 illegal, as in the Rules, pre-publication is directory in nature, because it does not provide any consequences for not publishing the draft notification before issuance of final notification.
Report on Inventory of Trees Outside Forest Rural (TOF-R) in Himachal Pradesh, published by Forest Survey of India, Ministry of Environment, Forest and Climate Change, Government of India, placed on record as Annexure R-1 along with the reply filed by the State, has been referred by learned Advocate General for demonstrating availability of Khair wood in the State of Himachal Pradesh and for justifying the recommendations/decision of the SLC taken in its meeting held on 04.07.2024
With regard to policy decision, learned Advocate General has placed reliance upon following paras of judgment of the Apex Court in Balco Employees’ Union (Regd.) vs. Union of India & Ors., reported in (2002) 2 SCC 333:-
“46.It is evident from the above that it is neither within the domain of the Courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our Courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical.
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92.In a democracy, it is the prerogative of each elected Government to follow it's own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court.”
Learned Advocate General has also referred to the following paras of the decision of the Apex Court in Divisional Manager Aravali Golf Club & Anr. vs. Chander Hass & Anr., reported in (2008) 1 SCC 683:-
“17.Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State.
18.Judges must exercise judicial restraint and must not encroach into the executive or legislative domain vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC 408 and S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279.
19.Under our Constitution, the Legislature, Executive and Judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.
20.Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State - the legislature, the executive and the judiciary - must have respect for the others and must not encroach into each other’s domains.”
Learned Advocate General has also referred to the following paras of the decision of the Apex Court in Brij Mohan Lal vs. Union of India & Ors., reported in (2012) 6 SCC 502:-
“96.It is a settled principle of law that matters relating to framing and implementation of policy primarily fall in the domain of the Government. It is an established requirement of good governance that the Government should frame policies which are fair and beneficial to the public at large. The Government enjoys freedom in relation to framing of policies. It is for the Government to adopt any particular policy as it may deem fit and proper and the law gives it liberty and freedom in framing the same. Normally, the Courts would decline to exercise the power of judicial review in relation to such matters. But this general rule is not free from exceptions. The Courts have repeatedly taken the view that they would not refuse to adjudicate upon policy matters if the policy decisions are arbitrary, capricious or mala fide.
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98.We must examine the cases where this Court has stepped in and exercised limited power of judicial review in matters of policy. In Asif Hameed v. State of Jammu & Kashmir and Anr. [1989 Suppl.(2) SCC 364], this Court noticed that, where a challenge is to the action of the State, the Court must act in accordance with law and determine whether the State has acted within the powers and functions assigned to it under the Constitution. If not, it must strike down the action, of course, with due caution. Normally, the Courts do not give directions or advise in such matters. This Court held as under: -
“19.When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an Appellate Authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.”
(emphasis supplied)
99.It is also a settled cannon of law that the Government has the authority and power to not only frame its policies, but also to change the same. The power of the Government, regarding how the policy should be shaped or implemented and what should be its scope, is very wide, subject to it not being arbitrary or unreasonable. In other words, the State may formulate or reformulate its policies to attain its obligations of governance or to achieve its objects, but the freedom so granted is subject to basic Constitutional limitations and is not so absolute in its terms that it would permit even arbitrary actions.
100.Certain tests, whether this Court should or not interfere in the policy decisions of the State, as stated in other judgments, can be summed up as:
(I)If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.
(II)The change in policy must be made fairly and should not give impression that it was so done arbitrarily on any ulterior intention.
(III)The policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc.
(IV)If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.
(V)It is dehors the provisions of the Act or Legislations.
(VI)If the delegate has acted beyond its power of delegation.
101.Cases of this nature can be classified into two main classes: one class being the matters relating to general policy decisions of the State and the second relating to fiscal policies of the State. In the former class of cases, the Courts have expanded the scope of judicial review when the actions are arbitrary, mala fide or contrary to the law of the land; while in the latter class of cases, the scope of such judicial review is far narrower. Nevertheless, unreasonableness, arbitrariness, unfair actions or policies contrary to the letter, intent and philosophy of law and policies expanding beyond the permissible limits of delegated power will be instances where the Courts will step in to interfere with government policy.”
D. SUBMISSION OF PRIVATE RESPONDENT(S)
Learned counsel for the private respondents by referring to the history of establishment of traditional Katha Bhatties, mechanized units and conversion of Katha Bhatties using IBR Boilers since 1975 till date, as well as the litigation by way of various petitions filed from the year 1993, has submitted that, in terms of the directions issued by this Court vide judgment dated 07.04.2011 passed in CWP No.1301 of 2006 titled ‘Yogendra Chandra vs. State of H.P. & Ors.’, a scientific survey was required to be conducted by the respondent-State within a period of six months for the purpose of renewing licenses. However, since no such survey was conducted for sufficiently long period, CWP No.1942 of 2018 came to be filed by some persons, who were intending conversion of their tradition Katha Bhatties into mechanized units, and ultimately, survey was completed in the year 2023 and the same was placed before the SLC, which become basis for taking decision/making recommendations with respect to representations of the petitioners as well as the private respondents related to Agenda Item No.15.8 and Agenda No.3 of 15th meeting of SLC held on 04.07.2024.
It has been submitted that, in fact, there is no substantial difference between persons manufacturing Katha through traditional Bhatties and those manufacturing Katha through IBR Boilers, except quantum of consumption of wood, raw material utilization and output, and Katha Bhatties using IBR Boilers are more beneficial from the standpoint of ecology and sustainable use of resources. Therefore, according to private respondents, the impugned recommendation regarding conversion of traditional Katha Bhatties to Katha Bhatties with IBR Boilers, is well within the domain of the SLC.
It has been further submitted that, in fact, it is not a conversion, but establishment of fresh Katha Bhatties using IBR Boilers, because such units are required to be registered, processed and established independently by undertaking the prescribed procedure, like a fresh Katha Bhatti. Though the word ‘conversion’ has been used, yet, in effect, it is establishment of Katha Bhatties using IBR Boilers in place of traditional Katha Bhatties, and there is no automatic conversion unless the requisite process is completed and the equipment is installed afresh.
It has been submitted by learned counsel for the private respondents that, in the very meeting held on 04.07.2024, on the basis of same survey report, recommendations have been made by the SLC for enhancement of capacity of the petitioner and permitted use of Khair wood throughout the year. However, the petitioner is not aggrieved by that part of the decision and, rather, in consequence thereof, he himself applied for enhancement of his capacity by depositing Rs.1,00,000/- and availed such benefit, as is evident from Registration Certificate No.3 of 2025 dated 07.04.2025 (Annexure R-7/4) issued in his favour by the competent authority.
It has been further submitted that petitioners and the private respondents are competitor in the same business and petitioners, being in advantageous position, are abusing the dominant position to refrain the private respondents to convert their Katha Bhatties into Katha Bhatties using IBR Boilers, despite the fact that they themselves got permission for manufacturing Katha using IBR Boilers as far back as in 1992-93. According to the private respondents, the present petitions are, therefore, motivated and intended to restrain competitors rather than protect legality.
It has been submitted that like the petitioners, private respondents have also invested huge money for installation of mechanized units in crores and have deposited Rs.1,00,000/- for Katha Bhatties using IBR Boilers, but petitioners with intention to ruin them have filed present petitions and obtained restraint order against the private respondents, which according to private respondents is definitely an abuse of position, as petitioners have already got benefitted of the decision taken by the SLC in the same meeting on the basis of the same Survey Report.
It has been submitted that the directions passed by the Apex Court as well as the Guidelines issued by Ministry of Environment and Forest and Climate Change in sequel to direction of the Apex Court, clearly depicts that the SLC was vested with jurisdiction to take decision for making recommendations related to Agenda No.3 as has been recommended and decided by the SLC.
It has been submitted that the petitioners have failed to point out any illegality or irregularity committed at any stage by any authority, while considering the case of the private respondents, which is similar to that of the petitioners. It has been submitted that, in case decision in Agenda Item No.3 is to be considered as a legislative act, on the ground that instead of recommendation, decision has been taken by the SLC, then, on the same analogy, the decision under Agenda Item No.15.8 also amounts to legislative act by the SLC, and in case it is prohibited for Agenda No.3, then certainly decision taken in case of petitioner in Agenda Item No.15.8 is also illegal and unconstitutional as the case of the petitioner on this count is similarly situated to the private respondents.
Learned counsel for the private respondents has submitted that the petitioners are estopped from challenging Notification dated 29.04.2008, as they have availed its benefits.
Learned counsel for private respondents, referring judgment of the Apex Court in The Nagar Rice & Flour Mills & Ors. vs. N. Teekappa Gowda & Bros. & Ors., reported in (1970) 1 SCC 575, has submitted that, though there is a right to carry on business and such right is a Fundamental Right under Article 19(1)(g) of the Constitution, yet its exercise is subject to reasonable restrictions imposed by law in the interest of the general public under Article 19(6) of the Constitution. It has been further submitted that the restrictions imposed through the regulatory conditions in Annexure A-I are reasonable and in public interest.
Learned counsel for private respondents has placed reliance upon the following paras of the decision of the Apex Court in State of Uttar Pradesh & Ors. vs. Uday Education and Welfare Trust & Anr., reported in (2024) 16 SCC 781:-
“56.It is thus seen that vide the said order, SLCs were authorized to take decisions regarding the grant of license/permission to the WBIs. Vide the said order, it was also directed to constitute SLC under the Chairmanship of the Principal Chief Conservator of Forest with a representative of MOEFCC and an officer of the State Forest Department/Industries Department not below the rank of the Chief Conservator of Forests/equivalent rank. This Court further directed the SLCs to be constituted in each State/Union Territory for which the SLC was not yet constituted. The MOEF was also authorized to issue appropriate guidelines in conformity with the orders and directions issued by this Court and also the existing guidelines to the SLCs relating to the assessment of timber availability for WBIs. Appeals could be filed before MOEFCC against the decision of the SLC.
xx xx xx
64.It is to be noted that after this Court allowed the licenses to be issued to the closed sawmills vide order dated 1-9-2006, the SLCs were constituted. The permissions were to be granted on the recommendations of the CEC. Vide order dated 18-5-2007, this Court had also accepted the recommendation of the CEC. Vide another order dated 30-4-2010, this Court permitted additional licenses to be granted if additional timber was available. Accordingly, licenses were granted between 2010 and 2015. Vide subsequent order dated 5-10-2015, this Court allowed the grant of license/permission to unlicensed WBIs in the country. This Court had directed the reconstitution of the SLCs for WBIs. In pursuance of the directions issued by this Court, the 2016 Guidelines were issued by the MoEFCC. As per the 2016 Guidelines, the SLC was reconstituted in the State of Uttar Pradesh on 17-5-2017.
65.One of the duties which was cast upon the SLC was to assess the availability of timber for wood based industrial units in the State. The SLC was to assess the availability of timber by commissioning studies, preferably in collaboration with institutes/universities of repute, once in five years.
xx xx xx
84.It can thus be seen that the 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 , which has been consistently followed in a catena of cases. This Court, in the said case, observed thus: (SCC pp. 677-78, para 77)
“77.The duty of the court is to confine itself to the question of legality. Its concern should be:
1.Whether a decision-making authority exceeded its powers?
2.Committed an error of law,
3.committed a breach of the rules of natural justice,
4.reached a decision which no reasonable tribunal would have reached or,
5.abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: 1 (1994) 6 SCC 651
(i)Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii)Irrationality, namely, Wednesbury unreasonableness.
(iii)Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696] , Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, ‘consider whether something has gone wrong of a nature and degree which requires its intervention’.” xx xx xx
107.Though we find that 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. We, therefore, direct the State Government 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 7-1-2020 are satisfied. The State Government shall also ensure that when such permissions are granted to the applicants, the applicants scrupulously follow the mandate in the said notification of planting 10 trees against 1 and maintaining them for five years.”
Learned counsel for the private respondents has also adopted and relied upon the submissions advanced on behalf of the respondent-State in support of the impugned action.
E. PLEA IN REBUTTAL ON BEHALF OF THE PETITIONER
In response to the plea of the respondent-State that the impugned action constitutes a policy decision with which this Court ought not ordinarily to interfere, learned counsel for the petitioners has placed reliance upon the judgment passed by the Apex Court in State of T.N. and Anr. vs. P. Krishnamurty & Ors., reported in (2006) 4 SCC 517 by referring following paragraphs:-
“Whether the Rule is valid in entirety?
15.There is a presumption in favour of constitutionality or validity of a sub-ordinate Legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a sub-ordinate legislation can be challenged under any of the following grounds :-
a)Lack of legislative competence to make the sub-ordinate legislation.
b)Violation of Fundamental Rights guaranteed under the Constitution of India.
c)Violation of any provision of the Constitution of India.
d)Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
e)Repugnancy to the laws of the land, that is, any enactment.
f)Manifest arbitrariness/unreasonableness (to an extent where court might well say that Legislature never intended to give authority to make such Rules).
16.The court considering the validity of a sub-ordinate Legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate Legislation conforms to the parent Statute. Where a Rule is directly inconsistent with a mandatory provision of the Statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non- conformity of the Rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the Parent Act, the court should proceed with caution before declaring invalidity.
17.In Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India [1985 (1) SCC 641], this Court referred to several grounds on which a subordinate legislation can be challenged as follows: (SCC p.689, para 75)
"75.A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary." [Emphasis supplied]”
It has been submitted on behalf of petitioners that the aforesaid judgment has also been followed by the Constitution Bench of the Apex Court in Association for Democratic Reforms and Anr. (Electoral Bond Scheme) vs. Union of India & Ors., reported in (2024) 5 SCC 1, and referred para of the judgment reads as under:-
“203.In Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. CST , a Constitution Bench of this Court held that a subordinate legislation is ancillary to the statute. Therefore, the delegate must enact the subordinate legislation “consistent with the law under which it is made and cannot go beyond the limits of the policy and standard laid down in the law.” Since the power delegated by a statute is limited by its terms, the delegate is expected to “act in good faith, reasonably, intra vires the power granted and on relevant consideration of material
2 (1974) 4 SCC 98 facts.” This Court has to be cognizant of this distinction. In fact, the doctrine of manifest arbitrariness, as developed by this Court in Indian Express Newspapers in the context of subordinate legislation, was applicable to the extent that “it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution.” ”
In response to the plea of estoppel raised by learned counsel for the private respondents, learned counsel for the petitioners has submitted that the grievance raised in the representations, appeal as well as in the present petitions is confined to assailing Notification dated 29.04.2008 only to the extent it imposes restrictions on Katha Bhatties using IBR Boilers and the restriction on export of Khair wood outside the State. It has been submitted that the petitioners have neither challenged the remaining conditions of the said Notification nor sought to assail the same and, therefore, they are not precluded from questioning the Notification to the limited extent to which it adversely affects them.
It has been submitted on behalf of the petitioners that provisions of the Competition Act, 2002, are not applicable in present case and for attracting the provisions of the said Act, the allegations
3 Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223
4 Indian Express Newspapers (Bombay) (P) Ltd. V. Union of India, (985) 1 SCC 641
5 In Khoday Distilleries Ltd. V. State of Karnataka, (1996) 10 SCC 304, this Court reiterated Indian Express Newspapers (supra) by holding that a delegated legislation is manifestly arbitrary if it “could not be reasonably expected to emanate from an authority delegated with the law-making power.” Similarly, in State of Tamil Nadu v. P Krishnamurthy, (2006) 4 SCC 517 this Court held that subordinate legislation can be challenged on the ground of manifest arbitrariness to an extent “where the court might well say that the legislature never intended to give authority to make such rules.” are required to be established through an inquiry as provided under Section 19 by the Commission constituted under Section 7 of the said Act. Mere allegations, without such inquiry, as contemplated under the Act, are of no consequence. Whereas respondent No.7 has not approached the Commission constituted under the Act with any such complaint.
It has been further submitted that the benefit availed by the petitioners on the basis of the decision of the SLC is only with respect to enhancement of capacity, as the SLC had express power under the Guidelines, 2016 in relation to enhancement and, therefore, the same has not been challenged and the petitioners have availed the benefit thereof.
It has been submitted that the petitioner (in CWP No.10525 of 2025) had a right to file an appeal, which he duly availed by assailing the decision of the SLC before the Appellate Authority, and, after dismissal of the appeal, he also have a right to maintain the present writ petition (CWP No.10525 of 2025), there being no other efficacious alternative remedy available. Rather, the Guidelines itself provides that the decision of the Appellate Authority can be assailed further in accordance with law and, except by way of judicial review, no other remedy is available to the petitioner, he thus has locus standi and cause of action to file and maintain the petition (CWP No.10525 of 2025).
It has been submitted that the plea of the respondent-State and the private respondents that the impugned decision of the SLC is merely a recommendation is not a correct version, inasmuch as the Principal Chief Conservator of Forests, Himachal Pradesh and the Government itself have not treated it merely as a recommendation, but rather as a decision of the SLC to be implemented and, therefore, according to the petitioners, the SLC exceeded its jurisdiction by taking a decision instead of confining itself to making recommendations.
In response to the plea that there was no requirement of prior publication for amending the conditions regulating Katha Bhatties, it has been submitted that, as the Notification has been issued under Section 3 of the Timber Act, 1968, prior publication was necessary, as provided under Section 3(3) itself. Therefore, it has been contended that non-publication of the draft notification is fatal and renders Notification dated 15.03.2025 illegal and non est.
F. ANALYSES AND CONCLUSION
In order dated 05.10.2025 passed by the Apex Court in T.N. Godavarman Thirumulpad vs. Union of India, reported in (2016) 13 SCC 612 (2), in para 130.1, it has been ordered that the State Level Committees (SLCs) for wood-based industries (WBIs) are authorized to take decisions regarding grant of licence/permission to wood-based industries.
In para 130.3 of the aforesaid judgment, it has been further directed that Ministry of Environment and Forest and Climate Change is authorised to issue appropriate Guidelines in conformity with the orders and directions issued by Apex Court as well as the existing Guidelines to SLCs relating to assessment of timber availability for wood-based industries and grant of license/permission to wood-based industries, including ‘addition of new machineries.’
In the Guidelines 2016 dated 11.11.2016, amended vide Resolution dated 11.09.2017, Clause 4 pertaining to Power and Functions of State Level Committee provides that SLC shall assess the availability of timber in State by way of appropriate study, devise suitable mechanism for sustainable use of timber in a manner that does not affect the forest of the area adversely, and also to approve the name of wood-based industries which may be considered for ‘grant of fresh license’ or ‘enhancement of existing licensed capacity’, subject to satisfaction of the SLC regarding legally available timber, including trees outside forests.
Clause 8 of the aforesaid Guidelines, 2016, as amended in 2017, provides that no licence to a wood-based industry shall be granted or renewed without obtaining prior approval of the SLC, though the SLC is also at liberty to delegate powers of renewal of licence to the Divisional Forest Officer of the concerned Forest Division.
Bare reading of the order of the Supreme Court and the Guidelines issued by the Ministry of Environment, Forest and Climate Change makes it apparent that it is within the domain of the SLC to consider grant of licence/permission to wood-based industries, including addition of new machineries, as also grant of fresh licence or enhancement of existing licensed capacity, subject to satisfaction regarding legal availability of timber, and that no licence to a wood-based industry can be granted without prior approval of the SLC.
Para 130.3 of the aforesaid judgment of the Apex Court, Clause 4.2 read with Clause 8.1 of the aforesaid Guidelines, 2016, amended in 2017, in unambiguous terms, mandate that for enhancement of capacity or for fresh license to establish wood-based industry, recommendation of SLC is mandatory. Therefore, it is within the domain of the SLC to determine matters relating to grant of fresh license or to enhance the capacity, subject to survey report and sustainable timber availability, though such decision is thereafter to be communicated to and considered by the competent authority, including the Government, for implementation or otherwise.
In view of above, it is definitely in domain and jurisdiction of the SLC to recommend or decide matters relating to conversion of traditional Katha Bhatties into Katha Bhatties using IBR Boilers for enhancing the existing licensed capacity by converting traditional Katha Bhatties into new WBI, i.e. Katha Bhatties using IBR Boilers. Without recommendation or decision of the SLC, no traditional Katha Bhatties could have been permitted to be converted into Katha Bhatties using IBR Boilers. Though the word ‘conversion’ has been used by the SLC, in effect, as evident from the decision as well as the impugned Notification issued pursuant thereto, it is not a conversion, but the enhancement of capacity of Katha Bhatties instead of using traditional handies to run the Katha Bhatties using IBR Boilers. In case, as observed by this Division Bench in CWP No.1301 of 2006 that there is no difference in traditional Katha Bhatties and Katha Bhatties using IBR Boilers, inasmuch as both are engaged in manufacture of Katha, then the impugned decision of the SLC would amount to addition of new machinery to already existing traditional Katha Bhatties, which is also permissible for consideration by the SLC, as is apparent from para 130.3 of the judgment dated 05.10.2015 (supra) passed by the Apex Court, as well as the Guidelines, 2016, as amended in 2017.
Even otherwise, in case both Katha Bhatti units are treated as independent of each other, then permission to convert traditional Katha Bhatties into Katha Bhatties using IBR Boilers would amount to establishment of a fresh wood-based industry, for which grant of fresh licence would be necessary. In that eventuality also, as provided in para 130.3 of the judgment dated 05.10.2015 (supra), grant of licence/permission to wood-based industries is within the domain of the SLC. Similarly, as per Clause 4(ii) of the Guidelines, 2016, grant of fresh licence is subject to approval of the SLC and, therefore, for such conversion, recommendation/decision of the SLC is a pre-condition. Thus, the decision taken by the SLC in Agenda No.3 of the meeting held on 04.07.2024 is within its jurisdiction.
Conversion of traditional Katha Bhatties into Katha Bhatties using IBR Boilers is also in consonance with the duties assigned to the SLC, which require it to consider legally available timber, including timber from trees outside forests, and to devise mechanisms for sustainable use of timber without adversely affecting forests. It has also come on record that traditional Katha Bhatties involve greater wastage of raw material and forest timber, whereas Katha Bhatties using IBR Boilers ensure comparatively lesser wastage of raw material and can also utilize chips available from outside forest areas. This aspect is relevant for the SLC to assess the availability of timber on the basis of appropriate study, which has been placed on record by the respondent-State as Annexure R-1 with its reply.
In view of the above observations, this Court is of the considered opinion that, in light of the order passed by the Apex Court on 05.10.2015 and the Guidelines, 2016, as amended in 2017, the impugned decision of the SLC does not suffer from lack of jurisdiction and, therefore, cannot be said to be a decision taken beyond its powers. Consequently, on this count, the Appellate Authority has also rightly upheld the decision.
Challenge laid to the restrictions imposed by Annexure-A to Notification dated 29.04.2008, as well as Annexure A-I notified vide Notification dated 15.03.2025, on the ground that the same are violative of the Fundamental Right guaranteed under Article 19(1)(g) of the Constitution, is also misconceived, because permission to use unlimited quantity of timber would have adverse impact on the forests of the area and would also impact the public at large, including other license holders engaged in the same business of manufacture of Katha. In order to ensure equal distribution of availability of work, without causing any adverse impact on forest resources, the restriction on use of timber by limiting it to 7500 quintals definitely has nexus with the object sought to be achieved by the directions issued by the Supreme Court, as well as the Guidelines, 2016, as amended in 2017, to ensure availability of timber to all stakeholders and sustainable use of timber without adversely affecting forests, while at the same time having due regard to the Fundamental Right of the petitioners to carry on business. Not only petitioners, but others, including private respondents, are also having Fundament Right to run business. Therefore, the challenge to the regulatory conditions contained in Annexure-A, now Annexure A-I, is not sustainable and is liable to be rejected.
It has been rightly pointed out by the respondents that, in case the decision under Agenda No.3 is treated not as a recommendation, but as a final decision by the SLC, and consequential action of the concerned authority is held to be lacking independent application of mind, then the same principle would equally apply to the decision under Agenda Item No.15.8, which was decided in favour of the petitioners, inasmuch as, in both agenda items, the SLC has recorded its decision, which was thereafter accepted and implemented by the concerned authority. Though this Court is of the considered opinion that the said decisions were approved by the Principal Chief Conservator of Forests, Himachal Pradesh, in his capacity as Chairman of the Committee, but were thereafter recommended for consideration of the Government in his capacity as Principal Chief Conservator of Forests heading the Department. However, if the impugned decision under Agenda No.3 was to be set aside on this ground alone, then the entire proceedings of the meeting held on 04.07.2024 would also be liable to be questioned and quashed, inasmuch as the SLC has recorded its decision on each and every agenda item.
From the subsequent action taken by the Department, it is apparent that, though recommendations of SLC has been referred to as a “decision,” but the same did not automatically culminate into statutory amendment or implementation, but was followed by consultation, deliberation and governmental consideration. The Principal Chief Conservator of Forests acted in dual capacities, i.e. as Chairman of the SLC while approving the decision/recommendation of the SLC on 29.07.2024 and as Head of the Forest Department, while issuing office order date 30.07.2024 on the representations of the petitioners as well as the private respondent, and also on 31.07.2024, at the time of submitting proposal for amendment in the regulatory conditions related to traditional Katha Bhatties as well as Katha Bhatties using IBR Boilers. Therefore, plea of the petitioners on this count is also liable to be rejected.
As discussed supra, there is no conversion of category of wood-based industry. The unit remained a Katha manufacturing unit. The traditional Katha Bhatties have been permitted to be mechanised or modernized by installation of IBR Boilers, and therefore, there is no direction qua conversion of category of wood-based industry. The category remains the same, only the equipment used for manufacturing Katha have been permitted to be upgraded.
Permitting conversion of all traditional Katha Bhatties into new Katha Bhatties using IBR Boilers does not amount repeal of depots classified in the Rules, because the SLC has not abolished the establishment of traditional Katha Bhatties unless a traditional Katha Bhatti unit holder applies for registration of Katha Bhatties using IBR Boilers by depositing Rs.1,000/- as registration fee and Rs.1,00,000/- as processing fee. Such unit shall not be automatically converted into new Katha Bhatties using IBR Boilers in absence of applying for conversion/establishment of Katha Bhatti with IBR Boilers, the same shall remain as Katha Bhatti. Therefore, it is also a misconception that, in view of decision related to Agenda No.3 in the meeting held on 04.07.2024, Katha Bhatties units or depots have been abolished by the SLC.
From the material on record, it is also apparent that, though the application of respondent No.7-Mast Mohammad was specifically referred to in Agenda No.3, there were a large number of applications received from traditional Katha Bhatti owners seeking permission to shift to Katha Bhatties using IBR Boilers and some of such persons had also filed CWP No.1942 of 2018, and therefore, in view of the powers and functions of the SLC, as provided under Clause 4 of the Guidelines, 2016, as amended in 2017, the SLC acted well within its domain and jurisdiction in taking a decision to permit all desirous traditional Katha Bhatti unit holders to establish Katha Bhatties using IBR Boilers, subject to fresh registration and the process to be undertaken by the Department upon submission of applications by such unit holders.
The impugned decision is also justified on the ground that it would not only decrease consumption of Khairwood for yielding increased Katha, but continuation of traditional Katha Bhatties would result in greater wastage of raw material and ecological concerns, besides causing prejudice to private respondents who intend to shift to Katha Bhatties using IBR Boilers, which are comparatively more environment friendly. The petitioners, who themselves are running Katha Bhatties using IBR Boilers, therefore, have no locus to claim a right to restrain the private respondents or the respondent-authorities from permitting such traditional Katha Bhatti units to shift to Katha Bhatties using IBR Boilers in accordance with law.
In view of the above observations, this Court does not find any ground to interfere with the decision dated 30.04.2025 passed by the Appellate Authority in the appeal preferred by the petitioner.
It is also relevant to observe that, during pendency of the appeal, the respondents were not inhibited from considering the recommendations of the SLC and from taking consequential action related thereto. Therefore, issuance of impugned Notification during pendency of appeal does not suffer any illegality on this court.
As observed hereinabove, neither the decision/proposal of the SLC nor Annexure A-I, notified vide Notification dated 15.03.2025, deletes the ‘sale depot’ incorporated in the Rules by way of amendment in the year 2008. There is no abolition of traditional Katha Bhatties and, in case any unit holder intends to continue with a traditional Katha Bhatti or is otherwise permitted to run the same, subject to all relevant provisions of law, including approval of the SLC, the depot related to traditional Katha Bhatti will be available with respect to the said traditional Katha Bhatti unit.
It is true that in recommendations and proposals submitted to the Government, justification seeking amendment, was stated for compliance of the decision of SLC in case of Mast Mohammad dated 30.04.2024. However, from the subsequent exercise undertaken by the Government as evident from meetings held on 07.10.2025, 15.10.2025 and communication dated 16.10.2025 as well as communication/deliberations held thereafter in December and January, the amendment cannot be said to be mechanical compliance of the decision of the SLC, but rather it is a policy decision of the Government taken after due consideration of the issue involved. Even otherwise, same principle would equally apply to implementation of decision of SLC relating to Agenda No.15.8, but in that the petitioners are is not finding any fault and enjoying the benefit thereof, but with respect to issue related to Agenda No.3 in the identical circumstances, petitioners are advancing argument that entire exercise is illegal.
Under Section 3(3) of the Timber Act, 1968, it has been provided that all Rules under this Section shall be so made after previous publication in the official Gazette. Section 3(4) further provides that all such Rules shall be laid before Legislative Assembly as soon as may be after they are made. However, no adverse consequences for non-adherence to the provisions of Section 3(3) or Section 3(4) have been incorporated in the Act. It is settled law that where previous publication or laying down the Rules before the Legislative Assembly is not followed by any adverse consequences, including nullity of the Rules so framed, such provision has to be considered ‘directory’. In case re-publication would have been mandatory, there must have been a Clause providing the consequences thereof. For absence of previous publication, Rules framed or amended, shall not become illegal or nullity. Therefore, on this count also, Notification dated 15.03.2025 cannot automatically be rendered illegal or non est. It may only give opportunity to assail such Notification on such ground, which would have raised in objections. Such objections raised in present petition, in our view, are of no worth and this failure in pre-publication of amendment is not fatal in given facts and circumstances.
Though this Court is not finally adjudicating upon the issue of pre-publication in absolute terms, however, there is considerable force in the contention of the respondents that there is no amendment to the Rule itself, which remains intact, and that it is only the Annexure appended to the Rules which has been modified in consonance with the spirit of the Act and the Rules. Since Section 3 empowers the respondent-State to frame Rules for regulating establishment of sale depots, replacement/amendment of Annexure-A by Annexure A-I vide Notification dated 15.03.2025 cannot, on this ground alone, be rendered illegal or a nullity.
Petitioners and the private respondents are in the same business, i.e. manufacturing of Katha. The petitioners were originally having traditional Katha Bhatties, which have been now mechanised and they are having Katha Bhatties using IBR Boilers. Apparently, petitioners as well as private respondents, are competitors with each other, being in the same business. Petitioners are praying for removing the cap of limit provided in regulations regarding using of Khair wood upto 7500 quintals, which means they intend to use unlimited Khair woods for manufacturing Katha and, at the same time, they are opposing conversion of Katha Bhatties of private respondents into Katha Bhatties using IBR Boilers. The intention of the petitioners is clear that they are intending to capitalise the business of manufacturing Katha by enhancing use Khair wood unlimitedly. The SLC has to consider establishment for wood-based industries on the basis of availability of wood in the State of Himachal Pradesh with sustainable development. Sustainable development also includes equal distribution of resources and availability of work to all who intend to enter into or continue the business of manufacturing Katha.
Concept of ‘Swaraj’ propounded by Bal Gangadhar Tilak, Gandhian concept of Swaraj and Self-Government and Deen Dayal Upadhyay’s Ekatma Manavvad (Integral Humanism) propagates equal distribution of resources to all and system to ensure upliftment of every section of society by extending benefit to the last person by providing work and opportunities to all.
The conduct of the petitioners, who are in the same business, enjoying benefit in terms of the same regulations, is highly depreciable. While claiming infringement of their right to carry on business under Article 19(1)(g) of the Constitution, but they are forgetting that the similar right is also available to private respondents. Private respondents have also right to run their business and to upgrade their machinery. The SLC has to take decision by protecting the interest of all to ensure equal distribution of resources and work for sustainable development of the society.
In view of above discussion, we do not find any merit in these petitions. From the overall perusal of the petitions, it appears that petitioners are trying to set personal scores with their competitors and to refrain them from competing with them, they have devised a method by filing appeal against decision taken in favour of private respondents and thereafter present petitions, but with ulterior motive. Therefore, petitions are not only liable to be dismissed, but with exemplary cost. However, by taking lenient view, no cost is being imposed.
Accordingly, these petitions are dismissed in above terms, so also the pending miscellaneous application(s), if any.