Madhya Pradesh High Court: In a writ petition challenging the notification amended on 11-04-2017 exempting 63 species of forest produce from the operation of regulatory provisions under the Transit Rules, 2000, a 3-judges bench of Suresh Kumar Kait, CJ., Sushrut Arvind Dharmadhikari* and Vivek Jain, JJ., struct down the impugned notification as unconstitutional and held that the striking down the impugned notification does not automatically revive past exemptions. The Court ordered the Status quo and directed the State to do fresh review. The Court further directed the State to implement stricter environmental oversight before future exemptions.
Factual Matrix
In the instant matter, the State of Madhya Pradesh, in exercise of its statutory powers under Section 41(3) of the Forest Act, 1927 (Forest Act), issued a Gazette Notification on 24-09-2015 exempting 53 species of forest produce from the operation of regulatory provisions under the Transit Rules. This notification was subsequently amended on 11-04-2017, extending the exemption to an additional 9-10 species, thus bringing the total number of exempted species to 62-63. The exemption was challenged through a writ petition in Anand v. State of M.P., W.P. No. 26802/2018, before the Indore Bench of the High Court, which was later transferred to the Principal Bench at Jabalpur in form of present case.
Moot Point
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Whether the challenge to the impugned notification can be repelled on the grounds of delay and laches for belated challenge after 4 years of its issuance?
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Whether the scheme of Section 2(4) of the Forest Act permits to separate exemption differentially for government as well as the private lands?
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What is the interrelation between Articles 41(1), (2) on one hand and 41(3) on the other; the nature and character of powers of exemption available under Section 41(3)?
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Whether the impugned notification dated 24.09.2015 is valid and Constitutional; the impact of Reports, Recommendations and Policies of MoEF and MoA, Government of India on the validity of the same?
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Whether the impugned exemption notification suffers from the vice of ‘manifest arbitrariness’, resultantly being unconstitutional and invalid?
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Whether the annulment or quashing of the impugned exemption notification would lead to revival of previously issued exemption notifications of 2005 and 2007; the directions in respect thereof?
Petitioners’ Contentions
The petitioners, comprising environmentalists and public-spirited individuals, contended that the exemption notification violated the scheme of the Forest Act, and contravened constitutional provisions aimed at environmental protection. It was contended that the notification was issued without any empirical study, research, or assessment, thereby rendering it arbitrary and unreasonable as per Shayara Bano v. Union of India, (2017) 9 SCC 1. It was argued that the exemption facilitated illegal deforestation by removing regulatory oversight over species crucial for maintaining ecological balance.
The petitioners cited M.K. Ranjitsinh v. Union of India, (2021) SCC OnLine SC 359, and contended that the principle of Public Trust Doctrine is violated, as the State failed to act as a trustee of natural resources. The petitioners cited In Re: Sec. 6A of the Citizenship Act, 1955, 2024 SCC OnLine SC 2880, and contended that there is a substantial delay in filing the writ petition due to a lack of financial resources and awareness among stakeholders, but environmental concerns warrant relaxation of the limitation principle.
Respondents’ Contentions
The respondents’ defended the impugned notification and contended that the exemption merely expanded upon previous notifications issued in 2005 and 2007, which had not been challenged, thereby granting it implied validity. It was argued that Section 41(3) of the Forest Act granted the State legislature competence to issue such an exemption, and in the absence of a challenge to the parent provision, the notification is now immune to judicial review.
The respondents’ referred to Satyadev Singh Tiwari v. State of M.P., WP No. 7491/2015, and contended that the challenge to the impugned notification is barred by delay and laches, as the notification had been in effect since 2015 without challenge until 2019.
It was contended that the exemption applied only to forest produce cultivated on private land and not from notified forest areas, ensuring no illegal deforestation. It was further contended that the impugned notification is based on the recommendations of the Ministry of Environment and Forests, MoEF Report, 2012 and other expert committees advocating a liberalised transit regime for agroforestry species.
Court’s Observations
The Court noted that the Forest Survey of India (FSI) Reports from 2019 to 2023 demonstrated a net reduction of 420 sq. km in forest cover. The Court stated that the Judicial notice can be taken from the reports indicating a steady decline in forest cover in Madhya Pradesh and “it can be safely assumed that the spectre of environmental degradation is ‘existential’ and ‘not futuristic’; it is right in front of the current generation, staring at us eye to eye, sounding an alarming call that the environment has to be at the forefront and priority, whilst framing or implementation of any of the developmental policies by the State.”
Impugned Notification of Exemption Being ‘Manifestly Arbitrary’
The Court noted that the State failed to conduct any independent study or assessment before issuing the notification. The Court stated that the absence of such empirical justification rendered the exemption manifestly arbitrary as per Cellular Operators Association of India v. TRAI, (2016) 7 SCC 703. The Court stated that the notification was issued based solely on administrative discretion without concrete scientific backing, thereby making it susceptible to judicial review.
The Court asserted that the absence of an impact assessment study meant that the economic benefits projected by the State are speculative and not grounded in data. The Court reiterated that policy decisions with environmental ramifications must be backed by empirical research and stakeholder consultations to ensure their legitimacy and effectiveness.
Maintainability of Instant Writ Petition on Ground of Delay & Laches
The Court held that delay and laches cannot be used to defeat a challenge involving environmental concerns, as environmental protection is a continuing obligation under Article 21 and Article 48-A of the Constitution of India. The Court referred to In Re: Sec. 6A of the Citizenship Act, 1955 (Supra), where the Supreme Court held that constitutional challenges should not be defeated merely due to the passage of time, particularly when larger public interest is at stake. The Court emphasised that environmental matters require heightened scrutiny, and courts must take proactive measures to address environmental degradation, even if the challenge is belated.
“Right to life is deeply entrenched in the protection and conservation of environment, forests, and all the natural resources of the State, as a facet of Article 21 r/w 48-A of the Constitution of India. Judicial review of any legislative action or subordinate legislation must be guided by the well settled concepts of Precautionary Principle, public trust doctrine, when questions about utilization or exploitation of natural resources or forest wealth are concerned”
Fundamental Rights, DPSP’s & Environmental Law
The Court underscored that every act of deregulation must be examined against the backdrop of environmental degradation and that any policy facilitating such degradation must be struck down in furtherance of Article 21 and Article 48-A of the Constitution of India.
“The interdependence and interrelation of fundamental rights of human beings and environmental concern arising out of any governmental policy decision is well established and embedded in Indian jurisprudence. Any policy framed by the government must withstand strict scrutiny of judicial review – of being the least damaging policy for the environment and giving environment primacy over interests of humans, apart from balancing the same equally.”
‘Precautionary Principle’ as Facet of Articles 21 and 48-A
The Court observed that while economic and industrial development is essential, it must be pursued within the framework of sustainable development. The Court noted that Article 21 guarantees a pollution-free environment, and that presence of forests is necessary for enabling the citizens to enjoy their ‘right to life’ in a pollution-free environment in the preceding section.
“‘Precautionary Principle’ has been accepted as one of the insegregable facets of environmental jurisprudence, whereunder the State is mandated to protect, improve the environment and safeguard the forests. It requires the government to anticipate, prevent, preempt and remedy or eradicate all the possible causes of environmental degradation including to act sternly against the violators.”
The Court stated that the Precautionary Principle, a well-established doctrine in environmental jurisprudence as explained in A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718, mandates that where there is uncertainty about the potential environmental damage, the burden of proof falls upon the party advocating deregulation. The Court held that the State failed to discharge this burden, making the exemption legally untenable.
“Even if the environmental risk arising out of the proposed action by its proponents are uncertain, but ‘non-negligible’, then ‘Precautionary Principle’ warrants and justifies implementation of regulatory action … ‘Precautionary Principle’ therefore mandates Constitutional Courts to predict the ‘non-negligibility’ of the environmental harm and to encourage regulatory action if the ‘non-negligibility’ is manifest/ foreseeable in such an environmental harm arising out of any human activity or governmental decision.”
Public Trust Doctrine & Obligation of State as ‘Eternal Trustee’ of all Natural Resources
The Court stated that the Public Trust Doctrine enjoins the State to protect and preserve natural resources for the benefit of present and future generations. The Court referred to M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388, Intellectuals Forum v. State of A.P., (2006) 3 SCC 549, and Fomento Resorts & Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571, where the Supreme Court, time and again, held that natural resources like forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The Court held that by removing regulatory control over 62 species, the State had relinquished its obligation as a trustee of the environment, placing commercial interests above ecological sustainability.
The Court asserted that the exemption covered species known to be naturally abundant in the state’s dense forests. The Court noted that these species are not just cultivated on private lands but are crucial components of Madhya Pradesh’s biodiversity and any exemption facilitating unchecked harvesting of these species could have far-reaching consequences on the local ecosystem, wildlife, and climatic conditions.
The Court asserted that that impugned notification granting exemption from regulatory control to large number of species, which are found equally in abundance in the natural deciduous forests of the State must be tested strictly on the anvil of the aforementioned ‘Precautionary Principle’ and from the standpoint of State as a ‘trustee’ on behalf of its citizens.
Separate exemption differentially for government and private lands
The Court clarified that Section 2(4) of the Forest Act does not distinguish between government and private lands when defining ‘forest produce.’ The Court held that exemptions cannot be arbitrarily granted for species that are commonly found within government forests and are ecologically significant. The Court held that the exemption of species from regulatory oversight based on ownership of land is inconsistent with the legislative intent of the Forest Act.
Temporary Nature of Exemptions Granted under Section 41(3)
The Court examined Section 41(1) and (2), which grant the State the power to regulate the transit of forest produce, and contrasted it with Section 41(3), which provides exemption powers. The Court held that exemptions under Section 41(3) must align with the broader regulatory framework and cannot be exercised in a manner that defeats the purpose of Sections 41(1) and (2).
The Court held that there are two inbuilt limitations on the exercise of powers of exemption available with the State Government under Section 41(3) —
“a. The power is discretionary and such a discretion cannot be invoked ordinarily, but exceptionally and sparingly, when the necessity for exercise of such discretion of exemption exists. The existence of power to exempt is one thing and exercise that power is entirely different when exigencies for its exercise exist;
b. The usage of word ‘may direct’ indicates the mandatory precondition of existence of the exigency, viz. compelling circumstances as a precursor to exercise of discretion of exempting any timber or other ‘forest produce’ from the rigour of the Rules enacted by the State.”
The Court stated that the exemption, instead of being temporary, had assumed an indefinite character, contrary to the transient nature of powers under Section 41(3). The Court emphasised that Section 41(3) is not an absolute power but must be exercised in a manner that is consistent with environmental protection principles. The Court remarked that regulatory exemptions must be carefully designed with periodic assessments and reviews to ensure they serve the intended purpose without compromising the environment.
Constitutional Validity of notification dated 24-09-2015
The Court noted that while the MoEF Report, 2012 and MoA Recommendations, 2014 suggested regulatory relaxation, they did not advocate indiscriminate exemption of forest species. The Court held that the impugned notification is inconsistent with national policies on environmental conservation, particularly the National Forest Policy, 1988. The Court further held that mere reliance on reports and recommendations without conducting an independent environmental impact assessment rendered the notification unconstitutional.
Court’s Decision
The Court held that the impugned notification dated 24-09-2015 and its subsequent amendment of April 2017 are ultra vires to Section 41 of the Forest Act and struck them down. The Court declared the exemption, unconstitutional on the grounds of manifest arbitrariness and lack of due diligence. The Court held that the earlier notifications of 2005 and 2007 are not automatically revived; instead, a status quo is maintained pending a comprehensive review by the State.
Court’s Directions
The Court the following direction —
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Transit Rules, 2000 are restored in full effect for all previously exempted species, to be implemented immediately by the State Government.
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A six-month period is granted for the State to collect and collate data before enforcing the earlier exemption notifications.
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A 10-day period is given for individuals and entities involved in transit/transportation of exempted species to comply with Transit Rules. Applications for transit passes must be filed within 10 days and disposed of within 30 days. For 30 days after filing an application, no coercive measures (civil or criminal) shall be taken against applicants. If necessary, the State may apply for an extension to dispose of a large number of applications.
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No movement of exempted forest produce, or timber is allowed for 10 days unless an application for a transit pass is filed.
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Individuals transporting exempted forest produce without a valid transit pass after the stipulated period will face legal action.
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If an application is not processed within 30 days, the responsible officer may face contempt proceedings under the Contempt of Courts Act, 1971.
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The State Government must disseminate the judgment through print and electronic media within 3 days. The judgment must be circulated among government officials and Gram Panchayats for strict implementation. The operative part of the judgment should be published on official government websites for public awareness.
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The State is expected to act as a public trustee in implementing the directions promptly.
The Court issued the following directions for compliance and future proceedings —
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The State or aggrieved parties can seek clarification or extension of time for compliance by filing an appropriate application before the designated Division Bench.
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All matters related to the exemption notifications will be heard by the designated Division Bench at the Principal Seat, Jabalpur. Any related cases pending at Indore or Gwalior Benches shall be transferred to Jabalpur.
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Compliance and monitoring proceedings shall continue for at least six months under the supervision of the designated Division Bench.
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The Chief Justice shall constitute the designated Division Bench at Jabalpur to address compliance-related matters.
[Vivek Kumar Sharma v. State of M.P., Writ Petition No. 13864 of 2019, Decided on 01-03-2025]
*Judgment by Justice Sushrut Arvind Dharmadhikari
Advocates who appeared in this case:
Shri Anshuman Singh, Counsel for the Petitioner
Shri Amit Seth, Addl. Advocate General, Counsel for the Respondent/State
Shri Sanjay Agarwal, Senior counsel with Shri Rahul Gupta, Shri Aditya Khandekar, Shri Akshay Sapre and Shri Mukhtar Ahmad, Counsel for the Respondent/ Interveners
Shri Kaushalendra Nath Pethia, Counsel for the respondent 5/NHAI
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