K. Ussainar vs The State of Tamil Nadu

Sanjay Kishan Kaul, C.J.—The petitioner is a Forest Contractor stated to be engaged in the business of purchase and sale of forest produce, including purchase and sale of wattle bark. The wattle trees are stated to be in abundance in Nilgiris and Palani Hills on account of nature of soil and are stated to be useful trees as wind breakers and soil binders to check erosion. These trees also regenerate quickly and grow to a height of 15 to 20 feet in two years. Thus, small land holders in their patta lands in the hill areas grow these wattle trees as the wattle bark and pulp wood are marketable products. The bark of wattle contains tannin and juice which is used for processing and tanning of leather, while the pulp wood of the wattle trees is used as raw material for paper industries. The bark of wattle is capable of being easily peeled and after being dried for a few days, it is cut into small pieces and transported to various places where tanneries are located.

In the course of business, the petitioner has entered into lease agreements with pattadars of private lands to peel off wattle bark from wattle trees standing in their patta lands. Permission to fell the wattle blue gum trees is applied to the District Committee constituted under the District Collector under Section 2-A of the Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955 (hereinafter referred to as ''the Act''). However, no such permission is obtained for wattle bark.

In the year 1984, the Forest Department is stated to have intercepted lorries transporting wattle bark belonging to various merchants on the ground that even for transporting wattle bark, a transport permit in Form-II has to be issued under the Tamil Nadu Timber Transit Rules, 1968 (hereinafter referred to as ''the Rules''). This resulted in filing of Writ Petition No. 9558 of 1981, seeking the relief of transportation of wattle bark without insisting on transport permit. This writ petition was allowed, following the earlier judgment in Kodaikanal Wattle Bark Vyaparikal Sangam Vs. State of Tamil Nadu and Others, . Apparently, interim orders protected the parties during this period, including the petitioner herein. This judgment was predicated on a reasoning that while bark is a "forest produce", as defined under Section 2 of the Tamil Nadu Forest Act, 1882, the Timber Rules govern the movement of timber, as defined in the Act, and there is no corresponding statutory provision or even rules with reference to the transit of forest produce.

There was apparently subsequent judicial development, as a Division Bench of this Court opined so on account of a reference by another learned Judge of this Court, who differed from the view taken in Kodaikanal Wattle Bark case, cited supra. In the Civil Appeal Nos. 2274 to 2277 of 1991, the Honourable Supreme Court observed that the relevant facts would have to be analysed, including the plea that trees are not damaged by peeling of bark and its normal life is not reduced, and that aspect of regeneration, would have to be looked into, all of which is the concern of the statutory authorities. Since these aspects had not been examined by the Division Bench of this Court, the matter was remitted for reconsideration. We may however note that the appellant in the Civil Appeals is the petitioner in Writ Petition No. 10501 of 1989, which we have disposed of by a separate order stating that the petitioner is not interested in prosecuting the present petition, but, the issue survives in the present matter being dealt with by us.

The present petition was filed, as once again transport permits were demanded by the authorities concerned. In view of the differing view of the learned Judges of this Court, a distinction is sought to be made between ''timber'' and ''forest produce'' to contend that the bark cannot be treated as timber and thus, there can be no insistence on obtaining permission under the Timber Rules. There have been no amendments to the Act or Rules. The prayer made is that the petitioner should be permitted to transport wattle bark peeled off from the private patta land after obtaining permission from the land owners and remove the wattle and blue gum trees under Section 3 of the Act.

A counter affidavit to the present petition has been filed only belatedly by the Additional Principal Chief Conservator of Forests (Planning and Budget), affirmed on 17.12.2014, stating that wattle plantations are stated to be exotic species introduced in Nilgiris as early as 1883. The various varieties and uses of such trees are set out in paragraphs 4 and 5 as under:

"4. It is respectfully submitted that the wattle plantations is an exotic species and it was introduced in the Nilgiris as early as 1883. Mainly three varieties, i.e., Acacia decurrence,(Green wattle) Acacia dealbata(Silver Wattle) Acacia meansii (Black wattle). Comparatively, Acacia meansii bark has more tanin contents than the other two varieties. Optimum age for felling and debarking the wattle trees for pulp wood and tanin is eight years and maximum age of wattle trees may range between 30 and 35 years. In the case of matured trees (over eight years), the bark may not be suitable for tanning extraction. Wattle trees are grown extensively in Forest Department land and also in private patta lands of Nilgiris District and Kodaikanal hills of Dindigul district which may cause heavy pressure on the natural indigenous species in Nilgiris.

It is respectfully submitted that as regards the functions of the bark to the tree are as follows:-

(1) The term bark refers to all tissues of a woody stem or root occurring just outside of the vascular cambium, i.e., all tissues that could be stripped away from the woody core. The petiole or rachis of a long- lived leaf can theoretically also form patches of bark, but this normally is not observed. Stems of monocotyledons, especially trunks of arborescent types, often have an outer cover, sometimes appearing like a form of bark, but in these cases the origin of the cover is very different from that of dicotyledons and gymnosperms. Ferns and other seedless vascular plants never form bark of any type.

(2) Inner and Outer Bark

Where present, the bark most typically serves two very important functions. The outer, mostly dead tissues (outer bark) form a protective barrier between the plant axis and the abiotic and biotic environment. The inner tissue (secondary phloem), including living cells (inner bark), is where sugar transport for the plant occurs, and the inner bark also can have defenses against herbivores, such as cells with tough cell walls (secondary phloem fibers or sclereids) or cells and tubes filled with bitter or toxic chemicals.

(3) Bark is a very complex structure, consisting of cells that formed from lateral meristems (cambia producing secondary tissues) but often containing some cells (living or dead) that remain from the first-formed plant (primary tissues, such as epidermis, cortex, and primary phloem). In general, the inner bark is defined very narrowly as the innermost sector consisting only of secondary phloem, which is produced to the outside of and by the vascular cambium. The outer bark always includes all tissues formed by the lateral meristem known as the cork cambium (phellogen) or a number of individual and often discontinuous cork cambia.

(4) Periderm and its Cell Types

Each cork cambium produces a sector of cells called a periderm. The dividing cells (initials) of the cork cambium (phellogen) divide to produce cells, most of which are "pushed" toward the outside, and some may be pushed toward the inside. Cells pushed to the outside generally have layering of suberin in their walls, and thereby become cork cells (also called phellem). Suberin, often composed of suberic acid and phellonic acid, is a fatty and waxy substance, which makes the cells mostly impervious to water and unable to exchange gases and nutrients, hence these cells soon die and entrap air. In some species, cells pushed to the outside of the cork cambium can develop with thickened cell walls but lacking suberin (phelloids). Cells pushed from the cork cambium to the inside are called phelloderm, and these can remain alive because they have unthickened and unspecialized cell walls and, hence, can exchange gases and obtain nutrients.

(5) General Functions of Bark

In general, outermost bark layer is considered to be a replacement for the epidermis of the stem and root, as the plant axis becomes older and grows thicker. What would occur if the cells on the outer zone of the cylinder, increasing in radius, did not keep pace via new cell divisions. The circumference of the axis would increase greatly, and the likely outcome would be stretching and tearing of the outer cell layers. In fact, this can be observed. A plant could experience extra cell divisions of the existing surface layers, to thereby increase the surface area, but this generally is not the case. Instead, seed plants, especially dicotyledons and gymnosperms, have solved this problem by producing new layers of cells (periderm) to accommodate tangential growth (lateral expansion) of the stem or root while, at the same time, helping to reduce water loss from the stem or root by forming the water- repellent cork cells.

The functions of the outer bark have been speculated about, but there has been relatively little scientific testing. Bark, and cork in particular, are excellent for thermal insulation, and thick bark is particularly common on trees in cold biomes, whereas thin barks are more typical of tropical habitats. During fires, thermal insulation by thick bark, or bark that does not burn into inner bark, can be an adaptation for plant species inhabiting fire-adapted communities. Cork is indigestible, creating a surface that is not very attractive to many animals, although many herbivores (mammals and boring insects) attack the inner bark, where the secondary phloem is loaded with sucrose.

Cork, with its fat and wax, is fairly water repellent, and thus creates a resistance to water loss from the plant to a drier atmosphere.

Occurrence of dead cells, without nutritional value, on the outer surface likely is a strategy to discourage growth of fungi and bacteria. However, in very wet habitats, such as cloud forests and rain forests, algae, bryophytes, lichens, and fungi may grow luxuriantly on wet bark, and branches can support huge loads of epiphytes.

Thus, the bark is silvicultural part of the tree and the peeling of wattle bark from the wattle tree will affect the survival of the tree. Thus, the peeling of the bark shall be regulated. "

The counter affidavit thereafter refers to the order of the Honourable Supreme Court in Writ Petition (C) No. 202 of 1995, dated 12.12.1996, in respect of the issue of felling of trees and plantations located in State of Tamil Nadu, which reads as under:

(i) limited to trees which have been planted and not those which have grown spontaneously;

(ii) limited to the species identified in the TANTEA report;

(iii) in accordance with the recommendations of (including the extent recommended by) TANTEA; and

(iv) under the supervision of the statutory committee constituted by the State Government.

(emphasis applied)

(b) In so far as the fuel trees planted by the plantations for fuel wood outside the forest area are concerned, the State Government is directed to obtain within four weeks a report from the TANTEA as was done in the case of shade trees, and the further action for felling them will be as per that report. Meanwhile eucalyptus and wattle trees in such area may be felled by them for their own use as permitted by the statutory committee. (emphasis applied).

(c) The state Government is directed to ascertain and identify those areas of the plantation which area "forest" and are not in active use as a plantation. No felling of any trees is however to be permitted in these areas, and sub-paras (b) and (c) above will not apply to such areas.

(d) There will be no further expansion of the plantation in a manner so as to involve encroachment upon by way of clearing or otherwise of "forests".

It is very clear that the felling of trees including wattle trees shall be done only according to the guidelines of the TANTEA and under the supervision of the Committee.

(xii) Any other related issue for removing the exotic species and restoring shola and rain forests.

In view of the aforesaid directions, it is pleaded that felling of any tree including the wattle trees, requires permission of the Committee formed under the Act.

It is the say of the respondents that the prohibition contained in the Act applies to even wattle trees, as Section 3 prohibits cutting of trees, while Section 4 prohibits cultivation. Since wattle bark is commercially utilised in many fields including for tannin, the same is also alleged to be requiring permission for transportation.

The wattle bark was being utilised in 1980 by a reputed factory in the name of TAN India and obtained a good price, but, due to bankruptcy of the company, the demand for wattle bark was reduced to the barest minimum. Tannin materials were allowed to be imported freely from other countries, further curtailing the demand. But, recently on account of pulp wood being utilised for paper manufacturing, the demand has again escalated. It is alleged that at present the bark is peeled off after cutting of the trees rather than bark being peeled off from the standing trees.

Writ Petition (MD) No. 3633 of 2014 was filed in the Madurai Bench of Madras High Court, seeking appropriate measures to remove the wattle and eucalyptus trees grown in the forests in the western ghats in Tamil Nadu region and orders were passed on 27.02.2014 in the following terms:

"4. In order to ensure that the valuable shola forests and grass lands are maintained, effective steps have to be taken by the Department of Forests and Environments and the Principal Chief Conservator of Forests, Government of Tamil Nadu, Chennai to ensure that Shola forests and tropical rain forests are restored to its original state. In this regard, the authority concerned has to be take steps to annihilate wattle and eucalyptus trees in the forests of Kodaikanal hills, Palani hills and in the Western Ghats of Tamil Nadu region and save the forests.

Taking serious note of the matter, the respondent authorities are directed to formulate a comprehensive scheme, if not already framed, for restoration of Shola forests and tropical rain forests in the Kodaikanal hills, Nilgiris, Palani Hills and the Western Ghats. This should be done in a systematic and Phased Manner.

An action taken report in this regard should be filed before this court along with proper records on or before 7.4.2014.

Since the restoration of Shola forests as well as the tropical rain forests in the Kodaikanal Hills, Palani Hills, Nilgiris and the Western Ghats of Tamil Nadu is a long drawn process, we are of the view that this petition will have to be listed periodically so as to issue directions from time to time, so that, the above stated object is achieved in public interest.

Admit. Notice to the respondents returnable by 7.4.2014.

This writ petition shall be listed on the first working day of every month before this court to ensure continuous monitoring and for passing appropriate orders as may be necessary.

List the matter on 7.4.2014 under the caption "Kodaikanal Shola Forest Restoration".�

Pursuant to the aforesaid directions, a Meeting was called on 18.03.2014 by the Principal Chief Conservator of Forests on the issue of removal of wattle and eucalyptus trees in the Kodaikanal and Nilgiris Hills and an Expert Committee was constituted comprising of Officers at various levels. The Expert Committee has been assigned with the task in the following terms of references:

"(i) To study the wattle and Eucalyptus menace in the Shola and other forests of Tamil Nadu.

(ii) Suggest possible methods to eliminate the wattle and eucalyptus trees from the forests of Tamil Nadu.

(iii) Post for the conservation, protection and rejuvenation of the forests in Western Ghats Region within the State of Tamil Nadu.

(iv) The Chairman of the Expert Committee may pursue necessary action and issue direction to the Committee members as deemed fit and proper from time to time and send action taken report to the Principal Chief Conservator of Forests at least on bimonthly basis.

(v) A separate comprehensive study report comprising all the above aspects for restoration Shola and rain forest separately in respect of Kodaikanal and Nilgiris District may be submitted in 10 copies.

(vi) The study report shall consists the entire area of region shola area of the earlier period / shola area in the present / area planted invaded by wattle / eucalyptus and pine.

(vii) Period of operation to replant the area to restore the shola forest and rain forest with indigenous species.

(viii) The study report shall also contains the present methodology and project being implemented and its impact and results.

(ix) The financial implication which includes revenue by the sale of wattle / eucalyptus / pines and also the expenditure for replanting / maintenance with replacement of causality conservation / protection for 2/3 plan period (Working Plan/Management Plan period)

(x) The committee may co-opt any person based on the need for formulation of strategy for eradication of Wattle/removal of Eucalyptus.

(xi) The Committee may also examine the various methodology (removing the seeds at present in the field, clear felling wattle plantations, felling the wattle and eucalyptus plantations and replanting with indigenous species, after removal exotic species, the area may be conserved by fencing to facilitate the natural generalists regrowth of indigenous species and other methods). The plan for removal of wattle/Eucalyptus may be worked out for 2/3 Working plan /Management Plan period. Committee may suggest strategy under (a) short strategy (b) Long strategy on scientific ecological principle."

The aforesaid thus shows that the Expert Committee is looking into the matter, whose report is stated to be expected soon. The Government Order in G.O.Ms.No. 289, Environment and Forests Department, dated 09.10.2014 has also been issued, allotting 42,594 tonnes of eucalyptus blue gum trees and 27567 tonnes of wattle trees to TNPL from the Nilgiris North Division, to be removed within a period of one year. The area will be restored with indigenous species to its originality and these two trees are stated to be in the process of removal in a systematic manner.

Despite the aforesaid, it has been pleaded that permit in Form-I from private area and permit in Form-II under Timber Rules would be required for transportation of wattle trees and bark from the forest area, as the act of peeling off bark is stated to be an act amounting to cutting or causing to cut a tree and the act of peeling off bark is stated to be the death of the wattle trees and such trees may die without corresponding activities for re-plantation of the trees. A comprehensive plan under the forest department is stated to be under consideration and even the removal of wattle trees from the private areas is required to be coded to maintain the eco sensitivity of the area, otherwise the tree cover would be completely wiped out. The problem has been sketched out in paragraph 16 as under:

"16. It is respectfully submitted that the predominant idea is to remove the exotic species and restore of the grassland. In order to accomplish this goal is rather simple � cut the invasive trees and the grasslands will return. In this case, the private land owner is not going to allow grass lands or sholas to come in their own land by removing the exotic species. Any management interventions should be implemented with caution, patience, and initially on a small scale. The landscape is variable, which means different sections on the landscape should get different levels of priority and interventions. Thus, the existing law may be enforced in the private lands and the management of private lands in to its originality with biodiversity is to be planned after the restoration plan in forest areas for a considerable period mixing up will definitely bring malpractices and illegal activities which is injurious to the fragile ecosystem of the Nilgiris."

In the aforesaid conclusion of the factual matrix, it is suggested that since an Expert Committee has already been constituted, the question as to whether wattle bark should be permitted to be removed without the requirement of any regulation may be examined by that Expert Committee itself. Such a course of action is acceptable to both the parties. We are, thus, of the view that this issue, keeping in mind the conspectus of the stand of the two parties, as recorded aforesaid, be referred to the Expert Committee, which would take a considered decision within a maximum period of three months from the date of receipt of the order. In that process, all interested parties, including the petitioner, may be heard and a reasoned decision be taken.

The writ petition accordingly stands disposed of. No costs. Consequently, WMP.Nos. 15174 of 1995, 25349 of 1991 and 272 of 1992 are closed.

Copy of the order be sent to the second respondent to be conveyed to the Expert committee.