K.N. Singh, J.
1. The State of Uttar Pradesh has filed this petition under Article 226 of the Constitution through the Divisional Forest Officer, Bijnor, for the issue of a writ of certiorari quashing the order of the District Judge, Bijnor, dated Nov. 3, 1971 and the order of the Forest Settlement Officer, Bijnor dated Nov. 27, 1967.
2. Briefly the facts are that the notifications under Ss. 4, 6, and 20 of the Indian Forest Act, 1927 were issued bv the State Govt. for declaring a certain area as a reserved forest in the district of Bijnor. The village Shahnagar Kurali falls within that area and river Ramganga flows through the reserved forest. Abdul Latif respondent No. 3 claiming himself to be the secretary of the Union of Fishermen and representative of fishermen Biradari of village Shahnagar Kurali, made an application before the Forest Settlement Officer under Section 12 of the Indian Forest Act, 1927, hereinafter referred to as the Act, for the grant of fishing right free of charge in the river Ramganga to the fishermen of the village. He asserted that the fishermen of the village Shahnagar Kurali have been fishing in the river since times immemorial prior to the Zamindari Abolition Act, and they have been carrying on their livelihood by catching fish in the river Ramganga without any charge. Even after the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1950 they have continued to enjoy that right without any interference by the State Government. The Divisional Forest Officer filed a written statement asserting that the fishermen are not entitled to any customary right of fishing in the river Ramganga free of charge. Abdul Latif applicant produced seven witnesses in support of the allegation that the fishermen of the village had a customary right to carry on fishing operation in the river Ramganga without any charge. No oral evidence was produced on behalf of the State. The Forest Settlement Officer by his order dated 27-2-69 accepted the plea of the fishermen of village Shahnagar Kurali and permitted them to exercise their right of fishing in the river. Ramganga free of charge subject to the condition that the Government will have authority to pass orders regarding auction of fishing right, if considered necessary. The State preferred appeal against that order but the District Judge by his order dated Nov. 3, 1971 dismissed the appeal and affirmed the order of the Forest Settlement Officer. Aggrieved the State Government has filed this petition under Article 226 of the Constitution.
3. Learned Standing Counsel urged that fish is not a 'forest produce' as such the Forest Settlement Officer had no jurisdiction to grant any customary right to the fishermen under Section 12 of the Act. While considering this contention, it is necessary to refer to the scheme of the Act. Once the State Government takes a decision to declare a certain area as reserved forest, it issues a notification under Section 4 of the Act specifying the situation and limits of the land which is sought to be covered by the reserved forest The Government appoints an officer known as the Forest Settlement Officer to enquire and to determine the existence, nature and extent of any right in favour of any person over the land comprised within the proposed area, Section 11 requires the Forest Settlement Officer to issue a proclamation of the land explaining the consequences which would ensue on the reservation of such forest and fixing a period of not less than three months requiring every person to make application claiming right, if any, in the land in the area. After making enquiry into such claim, the Forest Settlement Officer is empowered to pass orders admitting or rejecting the right as a whole or in part as provided under Section 12 of the Act. Under Section 13 of the Act, the Forest Settlement Officer is required to record the right in the village paper to the extent admitted by him. Section 20 lays down that the State Government may publish a notification in the Official Gazette, specifying the boundary marks and the limits of the forest which is to be reserved and declaring the same to be reserved from a date fixed by the notification. On the issue of notification such forest shall be deemed to be a reserved forest from the date so fixed. The effect of the notification under Section 20 of the Act is that no person is entitled to acquire or exercise any right over the reserved forest except under contract in writing made by or on behalf of the Government as provided by Section 23 of the Act. Section 26 prohibits felling of trees and taking of forest produce from the reserved forest, its contravention is punishable with imprisonment for a term which may extend to six months. These provisions clearly show that on the notification of a reserved forest no person has any right to obtain forest produce. But if the Forest Settlement Officer accepts the claim of a person he would be entitled to exercise his right to that extent
4. The interesting question which now arises as to whether fish is a forest produce. It is a matter of common knowledge that water channels, ponds and lakes (where) fish is produced by natural process. If such water channels, ponds or lakes or rivers fall within the area of the reserved forest, any fishing in such water channels, lakes or ponds would naturally be subject to the effect of a notification issued under Section 20 of the Act Section 2(4) defines forest produce in the following terms:--
(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 myrobalans, 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 of produce not hereinafter 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 limestone, laterite, mineral oils and all products of mines or quarries.
The definition is not exhaustive instead it is inclusive. Legislative intent appears to be that anything produced or found in the forest would be forest produce. The produce need not be confined to trees, plants, or bushes, but it relates to soil, minerals and animals also. The test appears to be that any article or the thing which is ordinarily found in forest shall be treated as forest produce. It, therefore, follows that all articles or goods which are produced or found in the forest would be 'forest produce'. As discussed earlier if fishes are found in a pond or water channel situate within the area of reserved forest, the restriction as contemplated by Section 26 of the Act would apply. Section 26(1)(i) prohibits fishing within a reserved forest. If the definition of 'forest produce' as contained in Section 2(4) of the Act is considered, bearing in mind the provisions of Section 26(1)(i) of the Act, the legislative intent would be clear that no person can carry on fishing within the reserved area unless the same is permitted by the Forest Settlement Officer or by the State Government in accordance with the provisions of the Act. If fish is not a forest produce, no restrictions could be placed by Section 26 on fishing rights within the reserved forest. Ordinarily fish is a natural produce of pond, water channel, lake or river situate within the forest, it has to be treated as forest produce for the purposes of the Act otherwise the State Government will have no right to prohibit fishing in a pond, lake, water channel or river situate within a reserved forest. I have therefore no hesitation in holding that fish is a forest produce within the meaning of Section 2 read with Section 12 of the Act and as such the Forest Settlement Officer has jurisdiction to grant fishing right in favour of the fishermen of the village.
5. Learned counsel then urged that since no notification under Sections 4 and 6 was issued, the Forest Settlement Officer had no jurisdiction to hear and decide the claim of respondent No. 3. This plea relates to the jurisdiction of the Forest Settlement Officer but the plea was never raised before the Forest Settlement Officer in the written statement filed by the Divisional Forest Officer. Even in appeal this plea was not raised before the District Judge. In the circumstances, it is not open to the petitioner to raise this plea for the first time in these proceedings. But even assuming that this question can be raised in the present petition, I find that inconsistent versions have been given in the affidavits filed before this court. In the original petition no such plea was raised. In the supplementary affidavit filed by A.A. Ansari, Assistant Conservator of Forest, it was asserted in para 3 of the affidavit that no notification under Sections 4 and 6 was issued regarding the portion of Ramganga which flows in District Bijnor but in para 5 of the same affidavit, it is stated that the record of village Shahnagar Kurali prepared by the Forest Settlement Officer under Section 20 of the Indian Forest Act, no fishing right in the river Ramganga had been recorded in favour of the inhabitants of village Shahnagar Kurali. The averments contained in paras 3 and 5 of the affidavit are inconsistent. No reliance can, therefore, be placed on these averments.
6. For the reasons stated above. I do not find any error apparent in the order of the Forest Settlement Officer or of the District Judge, dismissing the appeal. The petitioner is not entitled to any relief. The petition fails and is accordingly dismissed with costs.