THE COLLECTOR MUST APPLY HIS MIND TO THE PROVISIONS OF THE RULES AND CONDUCT AN ENQUIRY AS CONTEMPLATED IN THE PROVISO TO RULE 3(1) BEFORE REFUSING PERMISSION TO CUT AND SELL TREES STANDING IN THE PETITIONERS' PRIVATE LAND.

U.L. Bhat, C.J.

1. Petitioners belong to an aboriginal tribe by caste Gond. They are Bhumiswamis of certain land within the Government Forest Land. They desire to cut and sell trees standing in their private land some of which fall within the category of specified trees under the provisions of the M. P. Protection of Aboriginal Tribes (Interest in Trees) Act, 1956. Petitioner filed application before the Collector as required under Rule 2 of the Rules dated 6-1-1960 framed by the State Government under Section 241 of the M. P. Land Revenue Code, 1959. Applications were submitted in Form A prescribed into Rules. Some of the applications were submitted in 1981 and the rest in 1983. By orders dated 30-11-1983, the Collector rejected these applications. These orders are now challenged under Article 226 of the Constitution of India.

2. The impugned orders indicate that the petitioners had already sold quite a large number of trees from their land and that cutting of trees has led to diminution in quantity of rain and erosion of soil. These are the reasons which persuaded the Collector to decline permission for sale of trees.

3. Section 241 is a statutory provision intended to prevent theft of timber from Government forest. The section reads as follows :

"241. Measure to prevent theft of timber from Government forest. -

(1) If the State Government is satisfied that in order to prevent the theft of timber from any Government forest it is necessary in the public interest to regulate the felling and removal of timber in the village comprised in any area adjoining such forests, the State Government may, by an order published in the Gazette, declare such area to be a notified area for purposes of this section.

(2) Every order published under sub-section (1) shall be proclaimed in the prescribed manner in all the villages comprised in the notified area.

(3) Notwithstanding anything contained in Section 179 but subject to the provisions of sub-section (5), when an order has been proclaimed in any village under sub-section (2), no person shall in pursuance of a transaction of sale or for purposes of trade or business fell any timber tree in any holding in such village or remove the corpus of any such tree from any such holding except in accordance with such rules as may be made in that behalf.

(4) Any person who contravenes or attempts to contravene or abets the contravention of the provisions of sub-section (3) or of any rule made thereunder, shall, without prejudice to any other action that may be taken against him be liable on the order in writing of the Collector, to pay a penalty not exceeding one thousand rupees as may be imposed by him and the Collector may, further order confiscation of any timber trees felled in contravention of the provisions of this sub-section.

(5) Nothing in sub-sections (3) and (4) shall apply to the felling or removal of timber trees by any person from this land for his bona fide agricultural or domestic purposes, if such felling or removal is otherwise in accordance with the other provisions of this Code."

The above provision enables the Government to regulate the felling and removal of timber in the villages comprised in any area adjoining Government forest. The legislative purpose is sought to be achieved by requiring every owner of trees to fell trees only in accordance with Rules. The Rules will be applicable in regard to areas where Government has passed appropriate orders.

4. The rules were framed on 6-1-1960. Rule 1 relates to the order to be published by the State Government under sub-section (1) of Section 241. Rule 2 requires that when an order has been proclaimed in any village under sub-section (2) of Section 241, any person desirous of felling any timber trees in his holding for sale or for purposes of trade or business shall apply in writing to the Collector in Form A. Rule 3 requires the Collector to furnish a copy of the application to the Divisional Forest Officer who shall ascertain which timber