Hargovind Nagaich vs State of M.P. and Others

Sanjay Yadav, J.

Though many a reliefs have been sought by the Petitioner in the present writ petition; viz. (i) That this Hon''ble Court may kindly be pleased to direct the Respondents to produce the entire record leading to the passing of the impugned advertisement passed by the Respondent No. 2 DFO Burhanpur as contained in Annexure P/1, P/3 and P/4 respectively, (ii) That, this Hon''ble Court may be pleased to direct the Respondent No. 2 not to take any coercive steps against the Petitioner by issuance of writ of Mandamus and to further direct him to release the seized article forthwith (iii) that this Hon''ble Court may further be pleased to command the Respondent No. 2 by a writ of mandamus to allow the Petitioner to continue his business/trade of Salai Gond, in view of the circulars contained in Annexure P/7 to P/9 above as also in view of Section 2(b) and 5 of the Madhya Pradesh Van Upaj (Jaiv Vividta Ka Sanrakshan Aur Poshriya Katai) Niyam, 2005.

However, learned Counsel for the Petitioner as per his undertaking dated 18.3.2010 has confined his submission, questioning the validity of notification issued in succession since last four years under Rule 5 of the Madhya Pradesh Forest Produce (Conservation of Biodiversity and sustainable Harvesting) Rules, 2005 (hereafter referred to as Rules of 2005).

Rules of 2005 are framed by the State Government in exercise of its power conferred by Clause (b) of Section 76 of the Indian Forest Act, 1927 for the conservation of biodiversity (Flora and Fauna) and Sustainable Harvesting of Forest Produce from Government Forests.

Questioning the legality of the order issued by Divisional Forest Officer (Samanya) Forest Division, Burhanpur prohibiting extraction of Salai Gum from Forest Range Aseer, Nepanagar, Khaknar, Burhanpur and Amullah, Kamtha Circle, all protected and reserved forest from time to time for the period of one year each, it is contended that, under Rules 2005 it is beyond the powers of the Divisional Forest Officer to issue notification regarding prohibition of extraction of Salai gum. It is further submitted that even the notice which is to be issued in pursuance to Rule 5 of the Rules 2005 the same can be only for a singular forest area and not for composit forest area. It is further contended on the strength of the notification dated 28.6.2003 issued by the State Govt. in exercise of powers conferred by Sub-section (1) of Section 22A of the Madhya Pradesh Van Upaj (Vyapar Viniyam) Adhiniyam 1969 whereby w.e.f. 1.7.2003 Harra and all types of gum except Kullu gum ceased to be a specified forest produce in whole of the State of Madhya Pradesh, that it is beyond the powers of the Divisional Forest Officer prohibiting the extraction and conservation of Salai gum that would tentamount to violation of the right of the Petitioner to carry out trade.

It is on these ground that the Petitioner seeks quashment of the notification issued in pursuance to Rule 5 of the Rules 2005.

The State Government on its turn supports the action contending inter alia that it is within the powers of the D.F.O to issue notification under Rule 5 of the Rules, 2005 as the D.F.O''s have been authorized vide notification dated 13.5.2005. Furthermore, it is contended that even if the Salai Gum is not a specified forest produce under Adhiniyam 1969, the same can still be dealt with under Rule 2005 which are framed in exercise of powers u/s 76(b) and the "forest produce" as defined u/s 2(4) of the Indian Forest Act, 1927 will include with its fold the Salai Gum. It is further contended that the provision as contained under Rule 5 of the Rules, 2005 speaks of specified Forest area and not a singular area and, therefore, it is within the powers of the State Govt. or the authorized officer to issue a composite notification for comprising of forest ranges, reserved forests and protected forests area. Having thus submitted, it is contended that the petition being devoid of substance deserves to be dismissed.

Heard the learned Counsel for the parties at length.

Few background facts would be necessary for proper appreciation of the rival submissions.

The Petitioner resident of Maharanipur, Jhansi is engaged in the business of Gum including Salai gum and to facilitate the business he has taken on rent a godown situated at Burhanpur named and styled as ''Super Sizing Mill''. That in pursuance to a notification issued on 29.3.2005 under Rule 5 of Rules 2005 regarding prohibition of extraction of Salai gum from the area stipulated therein the Petitioner informed the authorized officer, on 4.4.2005 having possession of 158 quintals and 26.500 k.gs of Salai gum. The notification issued on 29.3.2005 was for the period from 1.4.2005 to 31.3.2006. Subsequent thereafter notifications were issued from time to time, i.e., 15.3.2007 for the period 1.4.2007 to 31.3.2008 (Annexure P/3); 20.3.2008 for the period 1.4.2008 to 31.3.2009 (Annexure P/4).

That, during currency period of notification dated 20.3.2008 a notice was issued to the Godown owner Shri Hazi Kaleem Uddin where the concern of the Petitioner, i.e., ''Super Sizing Mill'', is located, on 11.6.2008 calling uypon him to explain the circumstances under which the Salai gum was found stocked in the Godown. The said Hazi Kaleen Uddin responding to the notice stated that the premises is being let out to Hargoving Nagaich, i.e., the Petitioner and he has been informed about the proceedings. Pertinent it is to note that the information which was sought for from said Hazi Kaleem Uddin was in pursuance to a seizure effected on 7.6.2008 as is evident from Annexure R-6. It is at this stage, i.e., the seizure that the Petitioner has preferred a criminal revision and without waiting for the outcome has rushed to this Court for quashment of notification dated 29.3.2005 (Annexure P/1), 15.3.2007 (Annexure P/3) and 20.3.08 (Annexure P/4) and a direction to the Respondents to release the seized article forthwith.

Since the action against the Petitioner is during the currency of the notification dated 20.3.2008 and whereas the notification issued in earlier point of time having expired on completion of term and since no cause of action accrued during the currency of those notifications, the validity of notification dated 20.3.2008 is only gone into, as no cause of action accrue to the Petitioner qua notifications dated 29.3.2005, and 15.3.2007.

The notification dated 20.3.2008 is apparently in exercise of powers under Rule 5 of the Rules 2005 issued by Divisional Forest Officer (Samanya) Burhanpur.

Section 2(b) of the Rules 2005 defines Authorized Officer which means

2(b) "Authorised Officer" means an officer authorized under these rules by the State Government who shall not be below the rank of a Deputy Conservator of Forest for exercising the powers specified in these rules;

The State Govt. in exercise of its power under Clause (b) of Rule 2 issued a notification on 13.5.2005 published in Madhya Pradesh Gazette Part I page 877 dated 27.3.2005 (Annexure R/9) which is in the following terms:

Bhopal, the 13th May 2005

No. F-25-135-2004-X-3.- In exercise of the powers conferred by Clause (b) of Rule 2 of the Madhya Pradesh Forest Produce (Conservation of Biodiversity and Sustainable Harvesting) Rules, 2005, the State Government hereby, authorize all Divisional Forest Officers (Territorial and Wildlife), all Directors/Deputy Directors of National Parks and Divisional Managers of the Madhya Pradesh State Forest Development Corporation, as Authorised Officers for the purposes of the said rules.

By order and in the name of the Governor Of Madhya Pradesh Ratan Purwar, Secy.

Thus with effect from 13.5.2005 the Divisional Forest Officer (Territorial and Wildlife) are authorized as Authorized Officer under Rules 2005. A controversy is raised that the authorization having of the Divisional Forest Officers (Territorial and Wildlife) and not of the Divisional Forest Officer (Samanya) the notification dated 20.3.2008 issued by a Divisional Forest Officer (Samanya) is without any authority. Though none of the parties to this petition have brought on record any statutory classification/caderising of the Divisional Forest Officers having different nomenclature; however, it is gathered from the record that the posting of a Divisional Forest Officer (Samanya) is a territorial posting which is different than the posting as in Production or Wildlife. It is thus within the powers of the Division Forest Officer posted in a territorial Forest Division, being an official authorized under Rules 2005 to issue notification under Rule 5.

Next contention of the Petitioner that under Rule 5 notification can only be issued for a singular forest area, if accepted would than tantamount to violate the mandate of Rule 5 which stipulates:

Power to declare Closed Area.- The State Government or the authorized officer may declare certain forest areas as closed areas for a specified period, for the collection or extraction of any forest produce, in order to ensure the sustainable harvesting of such forest produce in future.

Thus, though it is mandatory under the Rule to specify the area, but to say that composite area cannot be included, is in the considered opinion of this Court, not the object of Rule 5. Thus, the notification in question which is issued for entire Protected and Reserved Forest is in consonance to Rule 5 and does not call for interference.

Regarding the contention that Salai gum being excluded from the ambit of specified forest produce under Adhiniyam 1969, suffice it to say that said exclusion does not exclude the forest produce under Rules 2005 which owe its existence to Indian Forest Act, 1927 whereunder the Forest Produce is defined u/s 2(4) as under:

(4) "forest-produce" includes-

(a) the following whether found in, or brought from, a forest or not, that is to say timber, charcoal, caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds, 4 [kuth] and myrabolams, and

(b) the following when found in, or brought from a forest, that is to say

(i) trees and leaves, flowers and fruits, and all other parts or produce not herein before mentioned, of trees,

(ii) plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of such plants,

(iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax, and all other parts or produce of animals, and

(iv) peat, surface soil, rock and minerals (including lime-stone, laterite, mineral oils, and all products of mines or quarries);

STATE AMENDMENTS

Madhya Pradesh.- (A) In Section 2, in Clause (4), in Sub-clause (a),-

(i) after the word "lac" insert the words "shellac, gum".

[Vide Madhya Pradesh Act 9 of 1965, Section 2 (w.e.f. 20.3.1965]

(ii) after the words "Mahua seeds" insert the words "tendu leaves"

[Vide Madhya Pradesh Act 1 of 1990, Section 3]

(B) in Section 2, in Clause (4), in Sub-clause (b), after item (iv) add the following item, namely:

(v) standing agricultural crops.

Vide Madhya Pradesh Act 9 of 1965, Section 2 (w.e.f. 20.3.1965).

Thus, Salai gum being a ''forest produce'' the notification issued under Rule 5 of Rules 2005 cannot be found fault with.

In view of above analysis, the petition fails and is hereby dismissed. However, no costs.