KASI PRASAD SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution by an Excise contractor residing in Bolarigir district challenging the validity of the Orissa Timber and Forest Produce Transit Rules, 1958 (hereinafter referred to as the Rules)requiring a permit from the authorised forest officials for transit of mahua flowers and other forest produce even though they have been collected from the lands of private parties and not from lands or forests belonging to Government. The divisional Forest Officer, Bolangir Division, made it absolutely clear that Mahua flowers collected from trees standing on the lands of the tenants may be sold by them to anyone they liked and that there was no control over the sale of such flowers. But he pointed out that the transit of such flowers cannot be made without, a permit under the Rules and that the permit would be issued free of costs on a proper application by a Forest Officer. The petitioner however felt aggrieved by the said rules and the main contentions on his behalf by Mr. Das are as follows:

(2.) IT is necessary to notice some of the relevant provisions of the Indian Forest act. The preamble and the long title of the Act show that the Act was intended to consolidate the laws relating to forests, the transit of forest produce, and the duty leviable on timber and other forest produce. Thus transit of forest produce was dealt with as a separate subject under the Act. The Act does not say that the forest produce must necessarily belong to Govt. Clause (4) of Section 2 (Interpretation Section) divides forest produce into two classes. One class is defined in Sub-clause (a) and the other class is defined in Sub-clause (b) of Clause (4 ). 'mahua flowers' (mahua seeds) 'myrabolam' etc. are described in Sub-clause (a) and it is expressly stated that these articles shall be forest produce whether found in or brought from a forest or not. But in Sub-clause (b) of clause (4) while describing other forest produce it is expressly stated that they shall be forest produce only when found in or brought from a forest. Hence the Legislature by express definition made it absolutely clear that mahua flowers shall be deemed to be forest produce for the purpose of the Indian Forest Act whether they were brought from a forest or not. Giving the natural meaning to the words the obvious inference is that mahua flowers from trees grown even on private lands would come within the definition of forest produce. "timber" has been separately denned in Clause (6) of the interpretation section. But the expression has also been included in the definition of 'forest produce' given in Sub-clause (a) of Clause (4)of Section 2, Apparently the Legislature felt the necessity of giving a wide meaning to the expression 'timber', chapters II, III and IV of the Act deal with Reserved Forests, village Forests and protected Forests and they are not material for our purpose. Chapter V deals with control over forests and lands, not being the property of Government. The provisions of this Chapter would themselves show that the Forest Act is intended to be a piece of legislation not only in respect of Govt. forests but also in respect of forests and lands not belonging to Government. Chapter VI deals with duty on timber and other forest produce. This chapter also is not relevant. Chapter VII deals with control over timber and other forest produce in transit. Section 41, confers on the State Government the power to make rules to regulate the transit of forest produce. The power conferred under this section is merely of regulatory nature in respect of transit of timber and other forest produce. The rules have been framed under this section. It was urged -- though somewhat faintly -- that the words "timber" and "other forest produce" occurring side by side would support the view that the word "other" must be given an ejusdem generis construction and that the transit of only such forest produce as is analogous to 'timber' could be regulated by Government in exercise of the rule making powers conferred under this section. This argument must be rejected because once, the interpretation clause has given a definition for the expression 'forest produce' and the expression 'timber' has also been defined separately the question of applying the ejusdem generis construction with a view to further restrict the scope of the expression "forest produce" in section 41 does not arise. Section 43 says that Government or any forest officer shall not be liable for any loss or damage to any timber or other forest produce at any depot of Government established under the rules made under Section 41. This special power, indemnifying Government and Govt. servants would not have been conferred if the forest produce referred to in Section 41 was limited to forest produce grown on the property of the Government only. In that case there would be no question of indemnifying Government from any loss or damage occurring to their own property. Thus Section 43 read with Section 41 would by necessary implication show that in Section 41 also 'forest produce' includes not only forest produce grown on or collected from the property of Government but also that grown on or collected from the property of private individual. Chapter VIII which deals with collection of Drift and Standard Timber also supports this view. Under Section 45 certain classes of Timber shall be deemed to be the property of Government until title thereto is proved, thereby impliedly recognising the position that some timber may not be the property of Government, Similarly chapter IX deals with penalty and procedure and recognises that some forest produce may, in the first instance, not be the property of the Government. Section 52 (1) authorises the seizure of any forest produce in respect of which a forest offence has been committed. Section 53 authorises a Forest Officer to release such property in favour of the owner on his executing the necessary bond. This section by implication shows that the forest produce may belong to some private owner. It is only when such property is eventually confiscated by the Court, after conviction of the offender under the Forest Act, that by virtue of Section 60 the property becomes the property of Government. Chap. XII deals with additional powers of govt. to make rules in respect of timbers, but this is not material for our purpose.

(3.) THUS though most of the sections of the Indian Forest Act deal with Government forests and Govt. lands and forest produce grown on such property, nevertheless, there are many sections--especially those in Chapter VII which confer regulatory power on Government to control movement of forest produce even though the produce may not be the property of Government. It is well known that government may exercise regulatory power over movement of property even though the property may not belong to Government.