MAKHANLAL CHOUBEY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The petitioners are bhumiswamis of Khasra No.75/12, Village Condia, Khasra No. 59 Jaisinagar, Revenue Circle, Tahsil and District Sagar. They had grown teak trees over the said area. According to the petitioners teak is a forest produce and the State Legislature has created a monopoly in favour of the State Government by enacting M. P. Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969 (hereinafter referred to as 'the Act'). Under the provisions of the aforesaid Act there is total restriction on purchase or transport on specified forest produce except in accordance with the provisions of Section 5 of the Act. Under the Scheme of the Act timber is required to be sold to the State Government, its officers or its agents and they are in turn to dispose of the same in accordance with the provisions of the Act. Under the provisions of Sections 240 and 241 of the M.P. Land Revenue Code, 1959 permission is accorded to a Bhumiswami to cut the trees. As per the said Code the Bhumiswami has to apply to the Collector for permission for cutting the trees. The Collector on the basis of a report obtained from the Forest and Revenue Authorities considers the application and may accord or refuse permission. On grant of permission the trees are felled and removed to the forest depot of the division under the transport permit. The timber is hammer marked for preserving the identification by the authorities. Thereafter the timber is cut into logs and hammer marked under the Supervision of the Forest authorities. It is set forth in the petition the cut timber is disposed of in public auction at the depot of the Divisional Forest Officer concerned. It is further averred that the petitioners applied to the Collector Sagar for grant of permission under Sections 240 and 241 of the M.P. Land Revenue Code. The said application was registered as Revenue Case No.17-A/63/93-94. The Collector after being satisfied by order dated 27-9-1994 accorded permission to the petitioners to cut 1465 teak trees. After the trees were felled they were hammer marked and removed to the forest depot of the Divisional Forest Office, Sagar and arranged in stacks duly numbered. After stacking was made the procedure for disposal commenced and upset price was worked out by the S.D.O. Forest South Division Sagar and the same was approved by the conservator of Forest. The upset price determined in respect of the timbers belonging to the petitioners has been brought on record as Annexure-P.2.

(2.) According to the writ petitioners the State Government had brought a circular dated 30th May 1984 which provided that the upset price determined shall be price payable to the Bhumiswami for his timber subject to deduction as provided for in the circular. It is set forth that two more circulars dated 4-7-1994 and 10-3-1995, Annexure P-4 and Annexure-P-5 respectively have come into existence providing for determination of the price of timber payable to the Bhumiswamis and the said circulars have given a go-by to the upset price as determined for the timber. The said circulars stipulate that there should be increase of 10% of the sale price of the preceding year. The Chief Conservator of Forest Production Bhopal has issued a letter/circular to all the Conservator of Forest in the State to fix upset price as per circular dated 5-1-1994. It is pleaded in the writ petition that the Divisional Forest Officer, South Sagar issued an auction notice for auction of timber at the Forest Depot Sagar. As per the notice the auction was to be held on 17-2-1995. The entire timber belonging to the petitioners contained in the lots were sold at the upset price on two dates namely 17-2-1995 and 10-3-1995. The State Government received Rs. 14,62,260.50. It is put forth that though the State Government had received the aforesaid price the petitioner was paid Rs. 8,81,300/-.

(3.) The petitioners while claiming differential sum have urged in the petition that the process for determining the price of the timber belonging to the Bhumiswami is regulated by the M.P. Disposal of the Timber and Forest Produce Rules, 1974 (hereinafter referred to as 'the Rules') framed by the State Government in exercise of powers conferred on It under Section 76 of the Indian Forest Act, 1927. It is further put forth that circulars dated 4-7-1994 and 16-3-1995 have been arbitrarily framed for fixing the price of the timber belonging to Bhumiswami by providing an increase of 10% over the average price. It is highlighted that the State Level Committee which has framed the circulars has exceeded its authority while deciding that the rate of timber to be paid to Bhumiswami would be on the basis of the last years price received from the entire circle. The State Government's action has been criticised on the ground that the State Government has adopted the recommendations of the State Level Committee which has unilaterally taken a decision in fixing the price and the same has no sanction of law.