Tulsi Ram Adwani vs State Of Rajasthan And Ors

Pursuant to the directions of the Hon'ble Supreme Court of India dated 9th August, 2012 issued in the case of Bhopal Gas Peedith Mahila Udyog Sangathan and Others Vs. Union of India & Others (2012) 8 SCC 326 the Hon'ble High Court of Rajasthan Bench at Jaipur, ordered transfer of Writ Petition No. 2359/2010 to the National Green Tribunal, Central Zone Bench, Bhopal. On receipt of the case from the Hon'ble High Court of Rajasthan, it was registered as Original Application No. 87 of 2014 and vide order dated 03.11.2014, notices were ordered to be issued to the parties.

In the Writ Petition the Applicant states that he is carrying on the business of trading in charcoal made from the wood particularly from those trees which commonly grow in the State of Rajasthan such as Babul, Vilayati Babul (Prosopis juliflora) etc. He further states that looking into the public interest involved in production and transportation of forest produce including the charcoal from the trees which are usually found growing in the private and common lands in the villages in the State of Rajasthan, the Respondent State Forest Department exempted forest produce of the following species from the purview of the Rajasthan Forest Produce (Transit) Rules, 1957 issued under the Rajasthan State Forest Act, 1953 vide Notification dated 19.01.1991. Safeda, Subabul,Kharad, Vilayati Babul, Israeli Babul, Deshi Babul and Shisham.

In view of the above notification issued exempting the forest produce of the above species from the purview of Rajasthan Forest Produce (Transit) Rules, 1957 it has become convenient for the people to transport charcoal without permit and without any restrictions imposed within the State of Rajasthan and the trading was going on unhindered benefitting large number of poor people. However, in some cases due to interference of the authorities causing inconvenience to the people, the Principal Chief Conservator of Forests, Forest Department, Rajasthan vide order dated 22.02.2000 clarified that charcoal produced from the wood of Vilayati Babul does not require any permit for transportation within the limits of State of Rajasthan.

The Applicant vide Annexure-3 of the petition also filed a copy of the notification dated 29.06.1989 issued by the Revenue Department of the State under rule 24 EE of the Rajasthan Tenancy (Government) Rules, 1955 wherein it was notified that no permission is required for removal of the trees such as Ecualyptus, Subabul, Vilayati Babul and Israeli Babul growing in the private lands. He has also quoted certain instructions issued by the Inspector General of Police, Kota Range, Kota vide circular dated 05.10.2002 directing the subordinate officers not to harass the people involved in the production and transportation of charcoal, in view of the aforesaid notifications and orders issued by the State government.

The Applicant contended that when such process of exemption of forest produce including the charcoal produced from the aforesaid tree species from the purview of the Rajasthan Forest Produce (Transit) Rules, 1957 benefitting large number of poor people particularly villagers in the State of Rajasthan who earn their livelihood by producing the charcoal from the wood of these trees which is otherwise unfit for utilization as timber was going on smoothly, the Respondents No. 1 & 3 issued orders dated 11.11.2009 and 18-11-2009 respectively under the Rajasthan Wasteland Development programme leading to harassment by the officials and interference in conducting their business. In the order dated 11-11-2009 it was ordered that uprootal of entire plant of Vilayati Babul sold in the auctions or for preparation of charcoal is prohibited, keeping in view that such activity is leading to soil erosion and affecting the Wasteland Development programme in the State and therefore such ban is required to save the land from soil erosion and preventing vast expanses of lands turning into Wastelands. The said order dated 11.11.2009 was issued by the Principal Secretary, Rural Development & Panchayati Raj Department, State of Rajasthan, Respondent No.1 herein. Consequently, the Respondent No. 3/Chief Executive Officer, Bi-fuel Corporation, Jaipur issued circular dated 18.11.2009 to the Development officers of Panchayat Samitis in the State of Rajasthan for strict implementation of the order dated 11.11.2009.

The Applicant contends that in view of the aforesaid orders dated 11.11.2009 and 18.11.2009 the officers of the Respondents No. 1 and 3 have started harassing him and similar other persons involved in trading of charcoal and interfering in their business. It is the contention of the Applicant that there are no compelling reasons and circumstances which warranted issuance of such orders by the Respondents No. 1 & 3 which go against the public interest hampering the trade and business activities of producing and transporting charcoal from Vilayati Babul in the State of Rajasthan which is detrimental to the poor people. As per the Applicant the orders issued by the Respondents No. 1 and 3 are illegal and without any jurisdiction. He further stated that charcoal is nothing but transformed timber as defined under the Rajasthan Forest Act, 1953 and it is produced from the old and heavy branches of the shrub Vilayati Babul and therefore uprooting/removal of entire plant does not arise. The definition of timber under the Forest Act is inclusive and for all intends and purposes under the Act, charcoal is a part of definition of timber and therefore the same is exempted from the operation of Rajasthan Forest Produce (Transit) Rules, 1957. He prayed that the orders dated 11.11.2009 and 18-11-2009 are illegal and against the legal provisions. Section 41 of the Rajasthan Forest Act, 1953, empowers the State Government to regulate the transit of timber and other forest produce. Therefore in exercise of these powers the Rajasthan Forest Produce (Transit) Rules, 1957 have been notified. Further, rule 24 EE of Rajasthan Tenancy (Government) Rules, 1955 clearly provides for exemption from seeking permission for the removal/cutting of the trees of the aforesaid species. The Rajasthan Forest Produce (Transit) Rules, 1957 empower the State to prohibit/restrict movement of forest produce in the State. However, there is a provision under rule 2 of the aforesaid rules which empowers the State Government to exempt forest produce of any species from the operation of these rules and allow it's transport without transit pass/permit. Therefore, in exercise of these powers the State Government issued notification dated 19.01.1991 and subsequent clarification dated 22.02.2000.

The Applicant further pleads that when such exemption given under the above said rules having been in force for more than 2 decades and since the scheme is working well in the interest of public at large, there is absolutely no necessity and justification in withdrawing the exemption by way of issuance of executive orders dated 11.11.2009 and 18.11.2009 which goes against the public interest. He states that it is not necessary that preparation of charcoal from Vilayati Babul amounts to uprootal/removal of entire plant. The process of production of charcoal is a mere conversion of timber and it can not in any way be distinguished from timber and therefore continuing exemption for timber and withdrawal for charcoal cannot be justified and also results into infringement of the rights of the Applicant affecting his livelihood and therefore the orders dated 11.11.2009 and 18.11.2009 are liable to be set aside. He further averred that authorities failed to appreciate that while under the process of preparation of charcoal from Vilayati Babul there is no question of uprooting/removal of entire plant which infact is not a tree but a large shrub and it is nothing but simply cutting and using the old branches in preparation of the charcoal. However, the Applicant agreed that it is true that if the entire plant is removed/uprooted it will certainly lead to soil erosion. Finally he concluded with a prayer to quash the order dated 11.11.2009 and consequential order dated 18.11.2009 issued by the Rural Development and Panchayati Raj Department and Bio-fuel Corporation, Jaipur respectively stating that they do not have any legal sanctity.

The Respondent State filed their reply to the Writ Petition stating that the Government of Rajasthan has constituted Wasteland Development Board vide its order dated 07.08.2009 and in the first meeting of the Wasteland Development Board, held on 19.02.2010, for which Minutes of the Meeting were issued on 25th/26th February, 2010, it was thoroughly discussed by the Members on the issue of large scale uprootal of the Vilayati Babul by the traders for making charcoal leading soil erosion and severely affecting the planting programme taken up for controlling the expansion of wastelands in the State. Therefore in the interest of State at large it was felt by the Members of the Board that it is necessary to stop such uncontrolled and extensive uprootal of Vilayati Babul for making of charcoal in the State of Rajasthan. However, keeping the interests of the general public in view, it was suggested that there should not be any restriction for making charcoal from the branch wood of the shrub Vilayati Babul. Therefore in compliance of the decision taken in the aforesaid Board meeting the Rural Development and Panchayati Raj Department issued executive orders dated 11.11.2009, 16.02.2010 & 22.03.2010 to control the uprooting of the entire Vilayati Babul plant and no prohibition was imposed either for cutting of the branches or making charcoal from the wood of such branches. It was further stated in the reply that uncontrolled uprootal of Vilayati Babul is leading to soil erosion and the very purpose for which planting of such species i.e. for controlling the expansion of wastelands, is getting defeated and therefore after elaborate discussion in the Board meeting it was decided to control the activity of uprootal of whole plant for making charcoal.

Discussion and Conclusion

The exemption provided for movement of forest produce of certain species including Vilayati Babul in the State of Rajasthan under the Rajasthan Forest Produce (Transit) Rules, 1957 permits to transport the material without transit permit and therefore if the charcoal once made is under transit, it is legally valid whether it is converted from the wood derived from the branches or root wood or stump wood even though it is distinguishable by looking at the shape and size of the charcoal. There is no law to seize the material if it is found converted from root wood or stump wood which is possible only when the whole plant is uprooted. However, at the time of cutting and conversion/preparation process itself at the site where such activity is taken up if there is a mechanism to control the uprootal/removal of the entire plant then it is possible to prevent such damage and therefore the orders issued by the Respondents No. 1 & 3, keeping in view of the impact of uprootal/removal of the whole plant on the environment particularly on soil erosion and in preventing the expansion of the wastelands in the desert State like Rajasthan, is fully in consonance with the principle 'Sustainable Development'. The Applicant himself stated that he is converting only the branch wood into charcoal and not resorting to uprootal of whole plant and therefore there is no grievance at all on his part if he is really following the aforesaid provisions and only cutting the branches and using branch wood in making the charcoal.

Vilayati Babul is an exotic species which grows up in a variety of soils including highly saline and alkaline soils. It is highly drought resistant and not browsed by cattle, goats etc. It is quite aggressive and spreads/colonizes very fast by producing root suckers and quickly covers degraded fallow and Wastelands which otherwise are highly prone for soil erosion. People meet part of their requirement of fuel wood from the vegetation of wild growth of Vilayati Babul. With its thorns and many low branches it forms impenetrable thickets. Thanks to the invasive nature of this thorny species, this has now spread fast in different agro-cimatic regions on account of its multifarious uses. The growth and spread of Vilayati Babul is tremendous mainly due to its inbuilt mechanism to overcome adverse conditions. With deep penetrating roots, it can draw water from deeper layers and can thrive in adverse conditions where other species die. Though the species has played a role in changing land use and in providing the livelihood security to poor villagers in the arid regions, it has colonised many important ecosystems, creating a negative pressure on biodiversity. Vilayati Babul can be a very aggressive invader and replaces native vegetation and takes over a variety of lands. The tree resprouts easily after damage.

Though Vilayati Babul is considered as a menacing weed in certain localities and removed for the improvement of habitat and under certain management practices, it is undoubtedly highly suitable in the arid regions where no other indigenous species thrives for planting under the Wasteland Development programme particularly in the desert State of Rajasthan which is prone for severe droughts and expansion of desert. This species is environmental friendly in these localities and its uncontrolled removal and conversion into charcoal for short-sighted benefits for commercial purpose leading to the soil erosion and expansion of the desert, requires to be regulated. Therefore the decision taken by the Members of the Wasteland Development Board of the State of Rajasthan and consequent orders issued by the State of Rajasthan followed by the instructions given to the officers not to allow the uprootal of whole plant for preparing charcoal, is legally valid and does not amount infringement of the rights of the Applicant and he is free to convert charcoal from the branch wood of the aforesaid species and transport/sell it for his livelihood purpose as there is no bar for such activities and it is fully exempted from the Rajasthan Forest Produce (Transit) Rules, 1957. The restriction imposed in the government order and notification against the use of root wood is a reasonable restriction in terms of Article 19 (1) (g) of the Constitution of India.

However, the point to be noted here is that the executive orders of the Rural Development and Panchayati Raj Department of the State of Rajasthan dated 11.11.2009, 16.02.2010 & 22.03.2010 can be enforced only at the time of cutting/removal of the plant Vilayati Babul for producing wood and converting it into charcoal and therefore one has to physically verify at the time of cutting the plant for producing the charcoal. But once the charcoal is made there is no bar to transport the produce and even if one understands that the charcoal is made from the root wood or stump wood implying that whole plant has been removed, no offence case can be booked as the charcoal is exempted from the Transit rules and does not require permit. Generally stump wood and root wood is also used to produce charcoal along with the branch wood and therefore if it is necessary to impose restrictions and prevent uprootal of whole plant then there must be total restriction on production and transport of charcoal at least in those areas where wasteland development works are taken up. It is for the State to examine the issue and come out with clear directions/notifications which can be legally enforceable and also ensure that people are not put to unnecessary harassment and lodging of cases.

However during the course of hearing the Learned Counsel for the State of Rajasthan has stated that the State is examining the existing provisions under the Rajasthan Forest Act, 1953 and the Rajasthan Forest Produce (Transit) Rules, 1957 and likely to come up with revised notifications/amendment of Rules making it more transparent and environment friendly duly keeping in view the environmental degradation and other related issues which will take care of not only the interest of the common man but also the protection of environment.

With the above observations, we conclude that the orders issued by the Respondent No. 1 & 3 are in no way contrary to the Rajasthan Forest Produce (Transit) Rules, 1957 and does not call for any interference by this Tribunal.

This Original Application No. 87/2014 accordingly stands disposed of. No order as to costs.