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Gujarat High Court
Judgename :A.M.AHMADI, R.A.MEHTA
FATESANG GIMBA VASAVA - Appellant
Versus
STATE - Respondent
S.C.A. 1932 of 1982
Decided On : 03/19/1986
Indian Forest Act ,1927 – Section 2 and 26 - Elephants Preservation Act - Writ petitions making a grievance that they are being harassed by officers of Forest Department with a view to depriving them of privileges conferred upon them by State Government - These petitioners have their residence in reserved forests and they claim certain privileges in regard to collection of forest produce including bamboos - According to them they are privileged to collect a certain quantity of bamboos per family from the reserved forests for the purpose of making toplas supdas palas etc. for their hutments and livelihood - Petitioners of Writ Petition No. are residing in the forests of and in and and of erstwhile State of Baroda - Forest Department from interfering with free transit of these articles prepared from bombs from forest area and for refund of the amount of Rs. 3 0 taken as deposit from him by the officers of Forest Department - Said writ petition was summarily rejected by on and it is against that order that the petitioner has preferred aforesaid appeal. Since the questions involved in three writ petitions as well as appeal are identical we propose to dispose them of by this common judgment - Expression timber includes trees when they have fallen or have been felled and all wood whether cut up or fashioned or hollowed out for any purpose or not and the expression tree includes palms bamboos stumps brush-wood and canes - It is not necessary to notice the various provisions relating to reserved forests since it is an admitted fact that all petitioners of the three writ petitions except the appellant are residing in reserved forest areas - It may however be necessary to refer to sec. 26 to which our attention was drawn in the course of arguments – Held, Forest-produce makes it clear that it takes within its fold all that is produced by nature but does not include man-made products such as toplas palas supdas etc. made from bamboo chips - True it is that if bamboo as a whole is forest-produce every party thereof including chips would fall within that definition but once the chips cease to be a produce of nature and get merged into a product brought about by human labour and if the product so made is commercially new and distinct known to the business community as a totally different commodity having a distinct character such an article or product ceases to be a forest-produce e. g. furniture made from timber or paper produced from bamboo-pulp - Articles produced from bamboo-chips do not fall within the definition of forest-produce the appellant could not he said to be removing forest-produce within the meaning of sec. 26 (g) of the Act – Court are therefore of view that appellant was not removing forest-produce when he transported and (bamboo-articles) out of forest area after purchasing them from residing in the forest – Court are therefore inclined to think that learned single Judge was wrong in holding that appellant was removing forest produce which was not permissible unless it was done with the express permission of Forest Officer or under any rule made by State Government in that behalf - In that view that we take the letters patent appeal must be allowed - petitioners and purchasers will be allowed to remove bamboo articles so purchased from forest areas to non-forest areas without treating them as forest produce within the meaning of sec. 2 (4) of the Act - Court may make it clear that we do not express any opinion on the question whether any private dealer or purchaser is required to obtain permission of Forest Officers for entry of his vehicle into forest area for purpose of transporting the bamboo articles purchased from petitioners since no action was taken against appellant on that count – Appeal allowed.
( 1 ) POOR Adivasis known as Kotwalias and Vansfodias have preferred these writ petitions making a grievance that they are being harassed by the officers of the Forest Department with a view to depriving them of the privileges conferred upon them by the State Government. These petitioners have their residence in reserved forests and they claim certain privileges in regard to the collection of forest produce including bamboos. According to them they are privileged to collect a certain quantity of bamboos per family from the reserved forests for the purpose of making toplas supdas palas etc. for their hutments and livelihood. The petitioners of Writ Petition No. 1932 of 1982 are residing in the forests of Umarpada and Vankal in Mangrol taluka and Mangrol Songadh and Vyara talukas of the erstwhile State of Baroda. The petitioners of Writ Petition No. 6252 of 1983 are Kotwalias residing in the forests of Netrang and Jhagadia range in Mangrol and Jhagadia talukas of Broach District. The petitioners of Writ Petition No. 6275 of 1983 are also Kotwalias residing in the forests of Songadh-Tapti range in Songadh taluka of Surat District. Letters Patent Appeal No. 211 of 1981 arises out of Writ Petition No. 1412 of 1981 which was initiated by a businessman who was purchasing toplas supdas and palas prepared from bamboos by these Adivasis. Since the officers of the Forest Department did not permit the removal of these articles from the forest area without pass or permit the said merchant demanded a writ of mandamus to restrain the officers of the Forest Department from interfering with the free transit of these articles prepared from bombs from the forest area and for refund of the amount of Rs. 3 0 taken as deposit from him by the officers of the Forest Department. The said writ petition was summarily rejected by P. D. Desai J on 24/07/1981 and it is against that order that the petitioner has preferred the aforesaid appeal. Since the questions involved in the three writ petitions as well as the appeal are identical we propose to dispose them of by this common judgment.
( 2 ) IN order to understand the exact nature of the controversy it would be advantageous to refer to some of the provisions of the Indian Forest Act 1927 (hereinafter called the Act) which have a bearing. The Act was enacted inter alia to consolidate the law relating to the transit of forest produce and the duty livable thereon. The term forest-produce is defined in sec. 2 (4) as under: forest-produce includes- (A) the following whether found in or brought from a forest or not that is to say timber charcoal caoutchouc wood-oil resin natural varnish bark lac mahua flowers mahua seeds kuth apta and temburni leaves rosha grass rauwolfia serpentina and myrabalans; 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 hereinbefore 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 slik cocoons honey and wax and all other parts of produce of animals and (iv) peat surface soil rock and minerals (including limestone laterite mineral (oils and all products of mines or quarries);the expression timber includes trees when they have fallen or have been felled and all wood whether cut up or fashioned or hollowed out for any purpose or not; and the expression tree includes palms bamboos stumps brush-wood and canes. It is not necessary to notice the various provisions relating to reserved forests since it is an admitted fact that all the petitioners of the three writ petitions except the appellant are residing in reserved forest areas. It may however be necessary to refer to sec. 26 to which our attention was drawn in the course of arguments. That section reads as under: 26 Acts prohibited in such forests (1) Any person who- (a) makes any fresh clearin
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