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Gulam IntiozuddIn and ors. Vs. Secretary to Government of Andhra Pradesh, (Forest and Rural Development ), Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 989 of 1982
Judge
Reported inAIR1982AP397
ActsAndhra Pradesh Forest Act, 1967 - Sections 1, 2, 29 and 68; Constitution of India - Articles 19(1) and 31(1)
AppellantGulam IntiozuddIn and ors.
RespondentSecretary to Government of Andhra Pradesh, (Forest and Rural Development), Hyderabad and ors.
Appellant AdvocateM.B. Rama Sarma, Adv.
Respondent AdvocateGovt. Pleader for ;M & H
Excerpt:
.....imposed ban on felling of certain species of tress without prior permission of forest officials - 'forest produce' given wide definition - restrictions applied to reserved forests as well as private forest - non-exemption granted to certain species of trees can not be said to be improper - it is not for court to grant exemption - so long as exemption granted was proper court not to go into validity of such exemption or non-exemption - held, restrictions applied to petitioner's land and the same were valid. - - they have to obtain the permission of the forest authorities to fell the tamarind and durisanam trees or sell or transport the wood or other products of those trees under the andhra pradesh forest act, 1967, and andhra pradesh forest produce transit rules, 1970. they complain..........or other products of those trees under the andhra pradesh forest act, 1967, and andhra pradesh forest produce transit rules, 1970. they complain that the restrictions imposed by the rules have become very irksome and they are not able to dispose of the timber or the produce of those trees standing in their lands. therefore, they have filed this writ petition to quash g. o. ms. no. 697 forest and rural development dated 31st march, 1976 and g. o. ms. no. 165 forest and rural development dated 23rd february, 1979.2. firstly, it is submitted by the learned counsel for the petitioners that the andhra pradesh forest act, 1967 is not applicable to private lands of the petitioners, for they are not forests. secondly. sections 28-a and 28-b are unconstitutional, for they confer unbridled.....
Judgment:
ORDER

1. The petitioner own patta lands in Manchala n Batasingaram villages, previously in Hyderabad district, now in Rangareddy district. There are neem, babul, mango, durisanam and tamarind trees in those lands. They have to obtain the permission of the Forest authorities to fell the tamarind and durisanam trees or sell or transport the wood or other products of those trees under the Andhra Pradesh Forest Act, 1967, and Andhra Pradesh Forest Produce Transit Rules, 1970. They complain that the restrictions imposed by the rules have become very irksome and they are not able to dispose of the timber or the produce of those trees standing in their lands. Therefore, they have filed this writ petition to quash G. O. Ms. No. 697 Forest and Rural Development dated 31st March, 1976 and G. O. Ms. No. 165 Forest and Rural Development dated 23rd February, 1979.

2. Firstly, it is submitted by the learned counsel for the petitioners that the Andhra Pradesh Forest Act, 1967 is not applicable to private lands of the petitioners, for they are not forests. Secondly. Sections 28-A and 28-B are unconstitutional, for they confer unbridled power upon the Government and impose illegal and unwarranted restrictions upon the rights of the petitioners guaranteed to them under Article 19(1)(g) and Article 31(1) of the Constitution of India. Thirdly, in the Andhra Pradesh Forest Produce Transit Rules, 1970, made in G. O. Ms. Number 356 dated 4th March, 1970, certain items of trees including the mango, neem, tamarind and babul were exempted in Hyderabad district under R.16; again in G. O. Ms. No. 697 dated 31st March, 1976 by an amendment, those trees were deleted. It is submitted that the said deletion by virtue of the amendment to the Rules made in G. O. Ms. No. 426 dated 17th June, 1978, these species of trees were again substituted and thereafter in G. O. Ms. No. 165 dated 23rd February, 1979 by which date Rangareddy revenue district was formed, these species were included in that district and it is arbitrary and not valid.

3. Though it was urged in the writ petition that the amended rules were not placed before both the Houses of the State Legislature as contemplated by Section 68 (3) of the Act, it was subsequently given up, in view of the statement in the counter-affidavit filed of the Forest Department that the amended rules were placed on the able of each House of the State Legislature.

4. It was submitted by the learned Government pleader that the Andhra Pradesh Forest Act also covers private lands and the Andhra Pradesh Forest produce Transit Rules are validly made. It was further submitted amended rules are also validly made and they are not open to attack on any of the grounds urged by the petitioners.

5. In order to appreciate the questions raised in this writ petition it is necessary to refer to the relevant provisions of the Andhra Pradesh Forest Act. 1967 and the Andhra Pradesh Forest Produce Transit Rules, 1970 made thereunder.

6. The Andhra Pradesh Forest Act, 1967 (hereinafter referred to as the Act) was passed to consolidate and amend the law relating to the protection and management of forests in the State of Andhra Pradesh. In came into force with effect from 15th April, 1967. 'Forest produce' is defined by Section 2 (g) as follows:

'Forest Produce' includes:-

(1) the following whether found in, or brought from a forest or not. that is to say timber, bamboos , charcoal, rubber, cacutchour, catechu, wood-oil, resin, natural varnish, bar, lack, mahua seeds, myrobalans, tumki leaves, rouse grass, rauwolfia serphentina, adda leaves and gurn.

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

(i) trees, such leaves, flowers and fruits as my be prescribed 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, wild birds, skins, tusks, horns, bones, silk cocoons, honey, wax, and al other parts or produce of animals and birds;

(iv) peat, surface soil, rock and laterite), mineral oil and all products of mines or quarries; and

(3) such other produce as may be prescribed;'

'Timber' is defined by Section 2 (q) as including trees fallen or felled, and all wood, cut up or swan. 'Tree' is defined by Section 2 (r) as including bamboos, stumps, brush wood and canes. Chapter II deals with Reserved Forests. Admittedly, the lands in question are not constituted as a reserved forest, Chapter III deals with protected Forests. The lands in question are not declared as protected forests. Chapter III-A which was introduced on 17th November, 1977, refers to reservation of private forests. That Chapter applies to Scheduled Areas in the State of Andhra Pradesh. Therefore, that chapter has no application to the lands of the petitioners. Chapter IV refers to control of timber and other forest produce in transit or possession. Section 29 gives power to the Government to make rules to regulate the transit and possession of timber and other forest produce. Under sub-section (2) the Government can make rules to specify the routes by which alone timber or other forest produce may be imported, exported or moved into, from or within the State; prohibit the import or export or moving of such timber or other forest produce without permit from a Forest Officer duly authorised to issue the same, or otherwise than in accordance with the conditions of such permit, or in the case of timber without a transit mark affixed by such officer. Provide for the issue, production and return of such permit or in the cast of timber, for affixing transit mark and the payment of fees therefor and other connected matters. Under sub-section (3) the Government may by notification direct that any rule made under that Section shall not apply to such classes of timber or other forest produce or to such local area, as my be specified by them. Contravention of a rule made under that Section is made punishable. Chapter V relates to possession of sandalwood, Chapter VI to collection of bright and stranded timber, and Chapter VII to penalties and procedure. Section 67 empowers the Government to exempt any area from the provisions of the Act. Under S. 68 the Government can make rules to carry out all or any of their purposes of the Act.

7. Under Section 29 read with subsection (1) of Section 68 of the Act, the Government of Andhra Pradesh issued the Andhra Pradesh Forest produce Transit Rules, 1970 (hereinafter called the Rules) in G. O. Ms. No. 356, Food and Agriculture, 4th March, 1970. In Rule 2 of that Rules 'Firewood' is defined as meaning, all timber velow 25 cms. In girth at its thickest end and one meter in length. 'Forest produce in transit' is defined as including forest produce found stored in any place or in the margin of any public road or cart track or foot-path whether loaded in carts of other vehicles or not; forest produce found in any river, canal or water course whether in rafts or not Under R. 3. no forest produce shall be moved into or from or within the State by land or water, unless such produce is accompanied by a permit therefor issued under Rule 5 and produced for check immediately on demand. Under Rule 4 Timber exceeding 25 cms, in girth at its thickest part and one meter in length, except timber swan into sizes shall not be moved into or from or within the State of Andhra Pradesh unless such timber bears a distinguishable Government transit mark. Rule 5 provides that the Divisional Forest Officer or an officer authorised by him shall issue a permit in Form 1 in respect of forest produce removed by the lessees of Forest Department and in Form II in all other cases. For supply of such forms permits, a charge has to be paid. The Divisional Forest Officer or any officer nominated by him shall affix the Government transit mark on timber for which a transit permit is issued. Under Rule 6, the ownership of timber if moved within the State should be indicated by a separate property mark, and all such property marks shall be registered by the Divisional Forest Officer. Application for registration of property mark or renewal thereof should be made to the Divisional Forest Officer accompanied by a fee. Rule II, provides that the forest produce in transit shall be of the description mentioned in the permit and it shall be transported within the time allowed in the permit accompanying the produce on the route and to the destination mentioned therein. Under Rule 12 certain Officials of the Forest Department the Police Department and the Revenue Department are empowered to detain and examine the vehicle. Under R. 13 Check-posts in Sch. I, with view to stop detain and examine the vehicle and secure compliance with the rules. Rule provides that no person shall take any forest produce on any route or through check-post or barrier, without producing the forest produce for check at the check-post or barrier. Under Rule 15 the officer-in-charge of the check-post or barrier shall, after satisfying himself that the forest produce is genuinely covered by the permit, and in case of timber that it bears the Government transit mark, endorse on the permit the fact of checking before releasing the vehicle. Rule 6 says that the rules shall not apply to such classes of timber and firewood in such areas as specified in Schedule II.

8. Schedule I gives the place where check-posts may be set up and barriers erected in the Districts, Schedule II gives the description of local areas and the firewood which are exempted from the purview of rules. In Hyderabad Revenue District (whole Hyderabad district the species of timber and firewood that were exempted from the purview of Rules mentioned in their common and local names are:

(i) Mamidi, Mango

(ii) Ravi, and related species

(iii) Vepa, Neem

(vi) Imli, Tamarind, Chowka

(v) Nallathumma, Babul

(vi) Regi Ber

(vii) Tati, Tadi, Palmyra

(viii) Jamun, Neredu

9. In G. O. Ms. No. 697, 'Forest and Rural Development (Forest-III) 31st July, 1976, the Andhra Pradesh Forest Produce Transit Rules, 1970 were amended. In schedule II of the said Rules, in the entries relating to serial No. 7 in respect of Hyderabad Revenue District (whole Hyderabad district) in columns (2) and (3) items 1 to 6 and 7 were deleted. It means, that except item 7, that is, Tati, Tadi, Palmyra, the other species including mango, neem, tamarind and Babul were removed from exception. It means that the Rules were made applicable for those species of trees.

10. In G. O. Ms. No. 426 Forest and Rural Development (Forest-III) dated 17th June, 1978. Schedule II was amended, and under serial number 7 for Hyderabad Revenue District (whole Hyderabad district) the following were substituted, viz.,

(I) Mamidi, Mango

(ii) Ravi and related species

(iii) Coconut, Kobbari, Tenkai

(iv) Vepa, Neem

(v) Imli Tamarind, Chinta,

(vi) Sapota

(vii) Nallathumma, Babul

(viii) Regi, Ber

(ix) Tati, Tadi, Palmyra

(x) Jamun, Nerudu

(xi) Casuarina, Sarugudu, Chowka

(xii) Orange and related species

(xiii) Jama, Guava

(xiv) Seemathumma

It means that these species were once again exempted from the purview of the rules, so far as Hyderabad Revenue District was concerned.

11. Again in G. O. Ms. No. 165, Forests and Rural Development (For- III) dated 23rd February, 1979 Schedule II was amended and serial No. 11 - A was inserted, namely, Ranga Reddy Revenue District (whole district of Ranga Reddy) and the following species were mentioned:

(I) Mamidi, Mango

(ii) Ravi and related species

(iii) Coconut, Kobbari Tenkai

(iv) Vep, Neem

(v) Sapota

(vi) Nallathumma, Babul

(vii) Regi Ber

(viii) Tati Tadi, Plamyra

(ix) Nerudu, Jamun

(x) Casuarina, Sarugudu, Chowka

(xi) Orange and related species

(xii) Jama, Guava

(xiii) Seemathumma

It means , these species of trees were exempted from the purview of the rules in relation to Ranga Reddy Revenue District. Tamarind and Durisanam trees are not exempted.

12. Forests are our national wealth. That is why Article 48-A of our constitution directs the States to protect and improve the environment and to safeguard the forests and wild life of the country.

13. The Andhra Pradesh Forests Act was enacted in order to consolidate and amend the law relating to the protection and management of forests in the State of Andhra Pradesh. 'Forest produce' has been defined in wide terms by section 2 (g) of the Act. Sub-Cl (1) of section 2 (g) says that it includes the following whether found in, or brought from a forest or not that is to say, timber, bamboos, charcoal, rubber cacutchour, catechu, wood-oil, resin, natural varnish, bar, lack, mahua flowers, mahua seeds, myrobalans, tumki leaves. rousa grass, rauwolfia serpentina,. addalieaves and gum. Eveidently, the words brought from a forest or not are included in order to prevent pilferage and smuggling of forest produce mentioned therein, which is considered to be imprtant. Sub-cl (2) of section 2 (g) only speacks of the forest produce that is found in or brought from a forest. It does not use the words 'or not'. Further it is an inclusive definition. Somilrlyu, 'timber' and 'tree' are defined by clauses (q) and (r) of Sec. 2 respectively. In view of the wide definition of the 'forest produce' in sub-cl. (1) of Section 2 (g), timber

bamboos and charcoal even though not brought from forest are still forest produce. Therefore, if forest produce mentioned in sub-clause (1) is found even in private lands, nevertheless, it would be forest produce subject to other provisions of the Act. Further, the Act was enacted to protect the forests. The Act applies to the whole of the State of Andhra Pradesh. It does not apply only to the forests. Therefore, is not correct to state that the Act applies only to the reserve forests, protected forests and private forests.

14. Chapter IV deals with control of timber and other forest produce in transit or possession. 'Timber' is defined by Section 2 (q) as including trees fallen or felled, and all wood, cut up or sawn. 'Tree' is defined by S. 2 (r) as including bamboos, stumps, brush wood and canes. 'Forest Produce' includes in its definition timber also. Section 29 empowers the Government to make rules to regulate transit and possession of timber and other forest produce. A reading of that Section shows that the Government can make rules to regulate the floating of timber in the rivers in the State and the transit of timber and other forest produce may be imported, exported or moved into from or within the State or prohibit the import or export or moving of such timber or other forest produce without a permit from a Forest Officer or in the case of timber without a transit mark affixed by such an officer; to set up check-posts or erection of barriers with a view to prevent or check the carrying of smuggled forest produce; to regulate the property marks on timber and the registration of such marks etc. The Government also can direct that any rule made under that Section shall not apply to such classes of timber or other forest produce or to such local area as may be specified by them.

15. In view of the object of the Act to protect and preserve the forests,, the wide definition of 'Forest produce' and Section 29 empowering the Government to make rules to regulate transit and possession of timber and other forest produce, the contention of the learned Counsel for the petitioners that the Act applies only to reserved forests, protected forests and reserved private forests and the Government cannot make rules to regulate the transit of timber and other forests produce grown in private lands cannot be accepted.

16. Now I will refer to the Andhra Pradesh Forest Produce Transit Rules, 1970. They were made under S. 29 read with Section 68 of the Act. As stated by me already, Section 29 empowers the Government to make rules to regulate transit and possession of timber and other forest produce. Rule 3 says that no forest produce shall be moved into or from or within the State by land or water, unless such produce is accompanied by a permit therefore issued under R. 5 and produced for check immediately on demand. Rule 5 empowers the Divisional Forest Officer or an officer or person duly authorised by him to issue a permit in Form I in respect of forest produce removed by the lessees of Forest Department and in Form II in all other cases. Rule 6 provides that the ownership of timber may, if moved within the State in accordance with the rules be indicated by a separate property mark. Rule 16 provides that the rules shall not apply to such classes of timber, firewood and other forest produce and in such areas as are specified in Sch.II. It is not argued that these rules are made in excess of the provisions of the Act. Evidently, these rules are made to regulate the transit and possession of timber and other forest produce which is very necessary to preserve and protect the forest wealth.

17. The villages in which the petitioners have lands were originally in Hyderabad Revenue District. In G. O. Ms. No. .356 dated 4th March, 1970, when the rules were framed, timber and firewood from the species, namely (I) Mango (ii) Ravi, (iii) Neem, (iv) Tamarind, (v) Babul, (vi) Ragi (vii) Palmyra and (viii) Neredu were exempted from the purview of the rules in Sch. II of the Rules. Subsequently, in G. O. Ms. No. 697 dated 31st July, 1976 items (I) to (vi) and (viii) were deleted. It means only Palmyra was exempted and the other items lost exemption. Thereafter, in G. O. Ms. No. 426 dated 17th June, 1978, as many as 14 items, including the 8 items that were mentioned in G. O. Ms. No. 356 dated 4th March, 1970, were substituted. It means that, once again, species like, mango, neem, tamarind, babul and palmyra were exempted from the purview of the rules. Thereafter, in G. O. Ms. No. 165 dated 23rd February, 1979, by which date Ranga Reddy District was formed, serial No. 11-A was inserted under which 13 items of species were exempted. They are the same as mentioned with respect to Hyderabad Revenue District in G. O. Ms. No. 426 dated 17th June, 1978, except item (v), that is, Imli, Tamarind, Chinta. It means that in Ranga Reddy District, Imli, Tamarind, Chinta is not exempted. If the petitioners want to cut and transport timber of tamarind trees which are in their patta lands, they have to obtain permits from the Forest Department. With respect to other species like, Mango, Ravi, Cocoanut, Neem, Sapota, Babul, Ragi, Palmyra, Neredu, Casuarina, Orange, Guava and Seemathumma, they can cut and transport as they please and they need not obtain any permit under the rules.

18. The reasons for granting exemption from time to time for different kinds of species are given in the counter-affidavit filed by the concerned Assistant Conservator of Forests, the 2nd respondent. It is stated that the Schedule has been amended from time to time keeping in view the general conditions prevalent in each district. It is stated that the amendments had become necessary when there were representations from the public for addition to or deletion from Sch. II of the exempted woods. In G. O. Ms, No. 165 dated 23rd February, 1979, exemptions were given to such of the timbers which were not originally seen in the Government forests. It was represented to the Chief Conservator of Forests by Legislators and Collectors of some districts that in the name of exempted species, fruit bearing trees like Mango, Panasa, Neredu and Tamarind which occur both in private lands as well as in Government forests have been ruthlessly felled and pilfered from the Government forests and consequently the tribal economy was adversely effected, because the tribals depend on edible fruits of such trees for their food and livelihood. Therefore, the exemption was taken away.

19. In view of these averments I cannot say that the exemption granted to certain species and non-exemption of Tamarind and Durisanam is not proper. It is not for this Court to grant exemptions. So long as the exemptions granted for certain species by the Government is proper, this Court will not go into the validity of that exemption or non-exemption. In the petitioners' lands, there are Mamidi, Thumma, Vepa, Chinta and Durisanam trees. Of these trees the wood of Mamidi, Thumma and Vepa are exempted and the petitioners are at liberty to fell and remove the timber of these trees. They have to obtain permits only for the wood of Tamarind and Durisanam.

20. In the light of the above discussion I do not agree with the contentions of the learned counsel for the petitioners that the Act and the Rules do not apply to patta lands of private persons and the Government orders deleting certain trees from exemption under Rule 16 and again including them, are not valid. Here it may be noted that the transit rules apply to private lands only when the owners of these lands want to remove the forest produce form their lands that is not exempted under Rule 16.

21. The learned counsel for the petitioners has referred to Seaford Court Estates Ltd. v. Asher, (1949) 2 KB 481 at p. 498, Bangalore Water Supply and Sewerage Board v. Rajappa : (1978)ILLJ349SC , ,Union of India v. Sankalchand, 0065/1977 : [1978]1SCR423 , R. Raghava Rao V. Tenancy Tahsildar Tanuku, W.G. Dist., (1976) 1 APLJ (HC) 156 and also to some passages in Craies on Statute Law in order to impress upon me that the provisions of the Act and the Rules should not be construed in a manner that would lead to absurd results. I agree. In Seaford Court Estates Ltd. v. Asher (supra) Denning, L.J. observed (at page 498) as follows:

'Whenever a statute comes up for consideration it must be remembered that is not within human powers to foresee the manifold sets of facts which they arise, and , even it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. this is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then, he must supplement the written word so as to give 'force and life' to the intention of the legislature. That was clearly laid down by the resolution of the Judges in Heydon's case ( (1584) 3 Co. Rep 7a), and it is the safest guide today. Good practical advice on the subject was given about the same time by Plowden in his second volume Eyston v. Studd ( (1574) 2 Plowden 465). Put into homely metaphor it is this: A Judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A Judge must not alter the material of which it is woven, but he can and should iron out the creases.'

This passage was quoted with approval in the other decisions. It is unnecessary to refer to them, for, in my opinion, the construction of the Act, and the Rules in the present case does not lead to any absurd results.

22. In this connection, I may also refer to the Division Bench decision of this Court in Writ Petn. No. 5686/1979 dated 31st August, 1979, which is binding upon me. The Division Bench after referring to the definition of 'Forest Produce' in Section 2 (g) of the Act and Rule 3 of the Forest Produce Transit Rules, 1970 observed:

'We must remember that what the statute and the Rules seek to achieve is not to deny any substantive right of the petitioner. They only provide for the regulation of those activities. It is true that for that purpose, forest produce, has been widely defined under Section 2 (g) of the Act as 'including forest produce found in or brought from a forest or not'. The idea is to throw the burden of proving that a specified category of forest produce such as timber, bamboo and charcoal etc., belongs to the petitioner on the petitioner himself. If the petitioner proves that the forest produce belongs to him and not to the State, the Divisional Forest Officer or any other officer who is authorised, is bound to issue a permit for its transportation under Rule 5. In this, ,in our view, the Legislature has not exceeded its legitimate limits of authority and did not invade the petitioners' fundamental rights in any way. This is too small a price which a citizen may be called upon to pay for the protection of national wealth. Nothing is more sacred for the Legislature than the protection of our common good. The problem which confronts the Legislature in its attempt to protect and preserve the forests is to identify the forest produce. In order to solve that problem the Legislature has adopted this method. Given the validity of the objective to be achieved, which is to preserve and protect the forests, we cannot find anything irrational in this means, adopted by the Legislature. We are therefore unable to admit this writ petition.'

The learned Judges negatived the contention that S. 2 (g) of the Act and Rule 3 of the Rules place an unreasonable restriction on the petitioner's right to property guaranteed under Article 19(1)(f) and the petitioner's right to do business guaranteed under Article 19(1)(g) of the Constitution.

23. The contention of the learned counsel for the petitioners that S. 28-A and Section 28-B of the Act are unconstitutional has to be rejected out of hand for they relate to preservation of private forests in scheduled areas in the State of Andhra Pradesh and have no relevancy to private lands in ryoti villages.

24. In the result, the writ petition is dismissed, but in the circumstances of the case without costs.

25. Advocate's fees Rs. 150/-

26. Petition dismissed.


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