Agarbati sticks derived from bamboo are not classified as forest produce under the Indian Forest Act, 1927, as they undergo significant processing leading to a commercially distinct product.

1. These writ petitions being WP (C) 390 of 2001 and WP (C) 395 of 2001 are embedded with a common question whether the Agarbati sticks as entered into SI. No. 5 of the Notification No. F.7(179) / FOR - FP / 2001/3426-49 dated 14-5-2001 (Annexure - 2 to the writ petition) is a forest produce or in other words, whether the respondents are within their authority to realise the revised royalties or royalty by virtue of the said notification dated 14-5-2001. By the notification dated 14-5-2001 the following rates of royalities for the Agarbati sticks have been prescribed;
For Local Use  For Export
Rs. 45.00 Per ton  Rs. 204.110 per ton.

2. The writ petitioners contended that the Agarbati sticks (bamboo sticks) are not forest produce but the bamboo is the forest produce in terms of the definition as provided in S.2(4) of the Indian Forest Act, 1927 which is being excerpted for appreciation.
"(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, 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 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, 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)."
For purpose of understanding the present controversy S.2(7) requires to be referred to;
(7) "tree" includes palms, bamboos, skurnps, brush - wood and canes.

3. These writ petitioners questioned the legality of the said Notification dated 14-5-2001 (Annexure - 2 to the writ petition) purportedly issued without competence to charge such royalty on the Agarbati sticks. The impugned entry according to the writ petitioners, ultra vires to the provisions of the Indian Forest Act, 1927 whereby the control including the transit of the forest produce has been left with the designated Forest Officers as prescribed. There is no dispute that the authority which issued the impugned Notification dated 14-5-2001 by revising and including the royalties of Agarbati sticks as stated is competent to determine the royalties in respect of the forest produce but their authority cannot be extended to any produce which is not a forest produce.

4. Mr. S. M. Chakraborty, learned senior counsel appearing for the writ petitioners .submitted that the royalty can be charged on the bamboo but the royalty cannot be charged on the bamboo sticks which has been referred to as the Agarbati sticks at serial No. 5 of the impugned Notification dated 14-5-2001..
To buttress his contention, Mr. S. M. Chakraborty, learned senior counsel appearing for the writ petitioners relied on a decision of Gujarat High Court in Fatesang Gimba Vasava and Others v. State of Gujarat and Others as reported in AIR 1987 Gujarat 9 where it is held that:
"Now the expression 'forest - produce' as defined by S. 2(4) of the Act includes trees and leaves, flowers and fruits and all other, parts or produce of trees. S.2(7) which defines 'tree' includes a bamboo. Therefore, bamboos are undoubtedly forest - produce. Toplas, palas and supdas are undoubtedly prepared from bamboo chips and can be described as bamboo - articles, but do such articles