The government's decision to settle the sand mahal with Khamphri was arbitrary and capricious as there was no material to show that he belonged to a Scheduled Tribe.

This is a writ petition. The petitioner's case is that the Divi­sional Forest Officer, Nowgong by a noti­fication dated 20-2-68 called for sealed tenders for working the Lumding Sand Mahal No. 1 on royalty cum monopoly basis. The petitioner and five others in­cluding opposite party No. 5 Shri Upendra Nath Khamphri submitted tenders and the petitioner offered the highest bid. Opposite party No. 5 was offered to ac­cept the settlement at the highest bid but he did not accept the offer. Then the settlement was made with the petitioner by the Conservator of Forests. Three ap­peals were filed before the Government against the settlement and the Govern­ment set aside the settlement made by the Conservator of Forests and settled the Mahal with the opposite party No. 5. This petition has been filed against the settlement made by the Government.

2. In the Assam Forest Regulation there are provisions for constitution of Reserved forests and Village forests. Land at the disposal of the Government which is neither a Reserved forest nor a Village forest is "Unclassed State forest". The Government has framed Rules regard­ing such forests and in it provision has been made for collection of sand there­from, vide Assam Forest Manual Vol. I 1947 Edn. page 39. The Government has also made "the Assam Settlement of Forest coupes and Mahals by Tender Sys­tem Rules 1967" (hereinafter called the Rules) for the settlement of Mahals of forest produce. Therefore the first ques­tion that arises is whether sand is "forest produce". The term "forest produce" has been defined in Section 3 (4) of the Regulation as follows:

"(4) "forest produce" includes -

(a) the following, whether found m, or brought from, a forest or not, that is to say,-

timber, charcoal, caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, myrabolams, rhinoceros horns, and

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

(i) trees and leaves, 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 and horns, bones other than rhinoceros horns, silk, cocoons, honey and wax, and all 'other parts or produce of animals, and

(iv) peat, surface soil, rock and mine­rals (including limestone, laterite, mine­ral oils and all products of mines or quarries)."

3. It may be noted that the definition is not exhaustive. It "includes" the above and there may be other kinds of forest produce. In short what is usually found in a forest is forest produce. When sur­face soil can be forest produce, I see no reason why sand will not be the same.

4. Mr. Chaudhury argues that the term "Mahal" as defined in the Rules is vague. I see no vagueness in it. A "Mahal" will mean a defined area where-from a certain type of forest produce is sold. A certain type of forest produce means any particular type of forest pro­duce. As I have said above, sand in land at the disposal of the Government is a forest produce and as such the Rules will apply when a Sand mahal is settled.

5. It Is argued by Dr. Medhi that In the settlement of the mahal with oppo­site party No. 5, statutory rules were violated. I quote below the relevant provisions of the Rules.

"6 (4). The tender shall be accompani­ed with the following documents, name­ly-

(i).....

(ii) An up-to-date income tax clearance certificate.

(iii) * * * * *

(iv) If the tender is submitted by a per­son belonging to any of the Scheduled Castes, Scheduled Tribes or other Back­ward Classes, then in addition to the requirements of (i) to (iii) above, the ori­ginal or certified copy of the certificate in support of his claim to belong to such community from the Deputy Commis­sioner of the District or the Subdivisional Officer of the Subdivision within whose territorial jurisdiction the tenderer permanently resides.

(v) * * * * "

6. It is argued by Dr. Medhi that