MOHAN GAMIRA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners herein have challenged the vires of the Gujarat Ordinance No. 1 of 1978 called The Gujarat Minor Forest Produce Trade Nationalization Ordinance 1978 The petitioners are concerned with the minor forest produce called Timru leaves. The petitioners are carrying on the trade of plucking and collecting Timru leaves. Petitioner No. 8 has entered into a contract to pluck and collect Timru leaves from the field of petitioner No. 1 who is one of the occupants in village Vavdi in Jetpur-Pavi Taluka Baroda District. He has also entered into similar contracts for the fields of other occupants of village Vavdi. Similarly petitioner No. 9 has entered into a contract to pluck and collect Timru leaves from the field of petitioner No. 2 who is one of the occupants of village Amrol in the same taluka in the same district. He has also entered into contracts for the fields of other occupants of the said village. Petitioner No. 9 has also entered into a contract to pluck and collect from the fields of petitioner No. 3 who is one of the occupants of village Devmohi of Jetpur-Pavi Taluka. In this manner petitioners Nos 10 11 and 12 have entered into contracts with some of the other petitioners for the purpose of plucking and collecting Timru leaves from the occupants of the fields in question. These fields are situated in different villages all situated in Baroda District either in Chhota-Udepur Taluka or Jetpur-Pavi Taluka. According to the petitioners the season of plucking and collecting Timru leaves starts by the second week of April each year and comes to an end by the third or the fourth week of May every year. Petitioner No. 8 had applied on March 27 1978 to respondent No. 2 who is the Divisional Forest Officer for issuance of necessary permit to enable petitioner No. 8 to take Timru leaves to Jetpur Chhota-Udepur Piplod and Godhra from Vavdi village where petitioner No. 8 was to collect Timru leaves from the various fields of that village. Similar applications were made by the other petitioners to respondent No. 2 for issuance of necessary permits in favour of the petitioners. Pursuant to these applications respondent No. 2 had given a reply in more or less the same terms to all those applicants and the reply was that before issuing the necessary permits Panchnamas had to be prepared showing the quantity of Timru leaves collected in the respective fields and survey numbers and accordingly the Panchnamas had already been prepared and it was found that greater quantities than shown in the Panchnamas could not be collected in the respective fields. It was also pointed out by respondent No. 2 that the collected Timru leaves should not be removed without the necessary permit from the Forest Department. For the purpose of carrying on the trade of sale of Timru leaves plucking and collecting of the leaves were finished by 28th April 1978. According to the petitioners there are two pluckings of Timru leaves in each season and there is an interval of about two weeks between the two pluckings. After the leaves are plucked and collected the leaves are allowed to dry for a period of fifteen days and immediately within the other fifteen days Timru leaves are required to be disposed of lest they may deteriorate in quality. The first plucking of Timru leaves was therefore required to be disposed of on or before May 10 1978 and the second crop of Timru leaves would be ready after ten days after the leaves of the first growth had been plucked and collected. When the leaves of the first growth had been plucked by the petitioners and punchnamas were prepared recording the quantity of the first plucking of Timru leaves the panchnamas showed lesser quantity of Timru leaves than in fact was the case. In spite of the fact that the panchnamas were prepared by officers of Government the necessary permits were not issued to any of the petitioners and on April 28 1978 a reply dated April 26 1978 was received from respondent No. 2 and in the letter it was stated that on April 8 1978 Government had promulgated an Ordinance and according to that Ordinance Timru leaves could only be sold to the Gujarat State Forest Development Corporation Ltd. at the price to be fixed by Government and to none else. Moreover by the said letter the petitioners were asked to sell Timru leaves to the office of the Corporation situated at Chhota-Udepur and it was further made clear that sale to anyone else amount to a breach of the said Ordinance and the petitioner would be liable to punishment as provided in the Ordinance. After receipt of the letter of respondent No. 2 dated April 28 1978 the petitioners have filed the present petition on May 5 1975 challenging the vires of the different sections of the Ordinance and they have also challenged the order by which the second respondent refused to issue permits to the different petitioners on the ground that the provisions of the Ordinance required that Timru leaves which was one of the minor forest produce referred to in Gujarat Ordinance 1 of 1978 could only be sold to the Gujarat State Forest Development Corporation Ltd. (hereinafter referred to as the Corporation) and to none else and that too at the price or prices fixed in accordance with the procedure laid down in the Ordinance.

(2.) In our opinion it is not necessary for us to go into the question of vires of the Ordinance because we find that even assuming that the Ordinance is intra vires the instructions contained in the letter of April 28 1978 issued by respondent No. 2 were such that they could not have been complied with at least so far as Timru leaves plucked in 1978 were concerned and in the events that have happened so far as the year 1978 is concerned the Ordinance has become unenforceable.

(3.) Under the scheme of the Ordinance agent means an agent appointed under sec. 6. Committee means the Advisory Committee constituted under sub-sec. (1) of sec. 7 and Corporation means the Gujarat State Forest Development Corporation Limited formed and incorporated under the Companies Act 1956 Minor forest produce under sec. 2 (9) means any of the following classes of forest produce : (a) timru leaves (b) mhowra flowers (c) mhowra fruits seeds and doli and (d) any other class of forest produce which the State Government may by notification in the Official Gazette declare to be a minor forest produce for the purposes of the Ordinance. Under sec. 3 of the Ordinance notwithstanding anything contained in any law for the time being in force in any statement grant agreement usage custom or any decree or order of a Court or any Tribunal or any document having the force of law no person other than the State Government an authorised officer or an agent shall sell purchase or transport with effect on and from the appointed day any of the minor forest produces specified in sub-clauses (a) (b) and (c) of sec. 2 (9). Appointed day for the purposes of this Ordinance means the day on which the Ordinance comes into force and the Ordinance came into force at once on the promulgation of the Ordinance i.e. on April 8 1978 Sec. 4 of the Ordinance is the material section for the purposes of this judgment and it provides that the State Government shall after consultation with the Committee and having regard to the factors specified in sub-sec. (3) fix in respect of each class of minor forest produce the price at which such produce shall be purchased by it or by an authorised officer or by an agent from grower. of that produce in the year following the year in which the price is fixed. It is therefore clear that any price fixed in 1978 can only be the price of the minor forest produce concerned in 1979 and so on and sub-sec. (2) makes it clear that the price fixed under sub-sec. (1) of sec. 4 shall be published in the Official Gazette in such manner as may be prescribed not later than the 31st day of December of the year in which it is fixed and the price so fixed shall not be altered during the year to which it relates. We are not concerned with the different factors which have got to be taken into consideration under sub-sec. (3) of sec. 4 by the State Government to fix the price after consultation with the Committee appointed under sec. 7 sub sec. (3). Agents may be appointed for the purposes of selling purchasing or transporting any minor forest produce on its behalf and under sub-sec. (3) of sec. 6 if the Corporation is appointed by the State Government as its sole agent under the proviso to sub-sec. (2) it shall be lawful for the Corporation to authorise any of its officers for the purpose of selling purchasing or transporting any minor forest produce on its own behalf under the provisions of the Ordinance. Sec. 8 sub-sec. (1) requires that the State Government shall having regard to the convenience of growers and collectors of minor forest produce set up at such places in each unit such number of purchasing centres or depots as it may think fit for the purchase and sale of minor forest produce under the provisions of the Ordinance. Sub-sec. (2) is material for this judgment and it requires that at every such purchasing centre and depot there shall be displayed prominently on a notice board kept for the purpose a list showing in Gujarati and in such other script or language as may be intelligible to the persons in the locality the price of each of the minor forest produce fixed by the State Government under sec. 4 and the hours at which any minor forest produce shall be purchased or sold at that centre or depot. It is obvious that fixation of price for the whole year is contemplated by sec. 4(1) and the price so fixed after consultation with the Committee has to be announced before the commencement of the year to which the price of the minor forest produce in question relates. Under sec. 9 sub-sec. (1) the State Government or the authorised officer or agent shall be bound to purchase at the price fixed under sec. 4 any minor forest produce offered for sale at the purchasing centre or depot during the hours notified for the purpose under sub-sec. (2) of sec. 8.