C D KAMDAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) All the petitioners, thirty -nine in number, carry on the business of purchase of Mohua flowers in the State of Orissa and export of the same outside the State. They have assailed the legality and validity of the Board's Excise ( Fixation of Fees on Mohua Flowers) Rules 1976, and, in particular, notification No. 454 -XIV. 3/82 -EX. dated the 5th February, 1982, enhencing the rate of fee for issue of pass to export Mohuaflower. As all the writ applications involve common question of law, they are heard together and shall be disposed of by this Judgment.

(2.) MOHUA flower is the matured sugary flower of Mohua tree the botanical name of which is Bassia Latifolia or Bassia Longifolia. These trees grow in abundance in the forests of Orissa and also in some private lands. A reference to the commercial Products of India by Sir George Watt, published in the year 1908 at Page -118 and the Silviculture of India. Trees, Volume 11 by Mr. R. S. Troup, published in 1921 at page -( 41 botl under the authority of His Majesty's, Secretary of State for India it Council, reveals that the flowers of Mohua tree appear as great cluster near the ends of the thick branchlets early in February and the flower open from the end of February to April each year. The cream -coloured corolls fleshy, and sweet fall in showers to the ground soon after opening every morning just after sunrise. Fall from a single tree is completed within 7 to 10 days. Yeild of each tree ranges from 5 to 8 maunds (1maund 37 -3242 Kgs.). The chief purchasers of the flowers are the distillers. In past, it was exported to Europe to be used for distillation. Mohua flower was a forest produce under the Indian Forest Act,1927 (Act 16 of 1927) and is also a forest produce under the Orissa Forest Act, 1972, (Orissa Act 14 of 1972) whether found in or brought from forest or not. Thus, Government has regulatory power on the. movement of Mohua flower under the forest legislations -See 29 (1.963) C. L. T. 150 (Kasi Prasad Sahu v. State of Orissa and Anr..) There was however, no law empowering the State Government to impose restriction on sale, possession and import and export of Mohua flower. In order to ensure adequate supply of Mohua flower to the 'distilleries, it was felt necessary to impose such restrictions. Accordingly, taking into consideration the charactristics and use of Mohua flower, it was included as an intoxicant by amending the Bihar and Orissa Excise Act, 1915 (B. and O. Act 2 of 1915) (here in after referred to as the 'Act'), in Orissa Act 36 of 1975. Since there after, the provisions of the Act also govern Mohua flower. To carry out the purposes of the Act in connection with Mohua flower, the State Government is in exercise of the powers under Section 89 of the Act made a set of rules called the Orissa Excise (Mohua flower) Rules 1976 (here in after referred to as the 'State Rules'). The Board of Revenue, Orissa (here in after referred to as the 'Board') in exercise of the powers under Section 90(7) of the Act has also made a set of Rules for prescribing the scale of fee etc. which are called Board's Excise (Fixation of fees on Mohua flower) Rules, 1976 (here in after called the 'Board Rules). Both the sets of Rules came into force on 1. 4. 1976.

(3.) FROM the allegations in the petitions and the replies there to the following facts are revealed : (a) Total Fees collected under the Board's Rules : 1976 -77 ... Rs. 11, 57, 000 - - - - 1977 -78 ... Rs. 11,52,000 1978 -79 ... Rs. 14,99,000 1979 -80 ... Rs. 12,00,000 1980 -81 ... Rs. 13,28,780 1981 -82 ... Rs. 18,86,904 1982 -83 ... Rs. 49,22,425 1983 -84 ... Rs. 65,74,300 (b) Fees in respect of a pass for export under Board's Rules 1976 -77 ... Nil. 1977 -78 ... Nil. 1978 -79 ... Rs. 6,43,884 1979 -80 ... Rs. 4,96,303 1980 -81 ... Rs. 9,91,817 1981 -82 ... Rs. 10,69,820 1982 -83 ... Rs. 8,42,735 1983 -84 ... Rs. 31,09,000 (c) Yearwise expenditure towards pay and allowances as of the staff sanctioned by the Government ... Rs. 5,05,500 (d) Yearwise expenditure on communication (Roadways) under State Plain of Forest Department : 1980 -81 ... Rs. 1,86,300 1981 -82 ... Rs. 1,94,000 1982 -83 ... Rs. 2,00,000