1. This is a first appeal filed by the plaintiffs against the dismissal of their suit C. S. No. 2-B of 1952 by the Additional District Judge, Rajnandgaon.
2. The undisputed facts in this case are --, these. The plaintiff (1) had removed 425 logs of teak from the Government reserved forest village Kholarghat, Tahsil Khsiragarh, in the beginning of 1950. He was being prosecuted for the offence of illicit felling but the matter was compounded. The composition of the offences was made by plaintiff No. 1, Birsingh, and the plaintiff No. 2 Sugansingh Mohta had stood surety for the amount. Sugansingh Mehta (Plaintiff No. 2) deposited the price of timber, Rs. 13,225, as determined by the Forest Officer, in composition proceedings. Besides, this, a sum of RS. 150 was deposited as composition fee for three offences.
3. The contention of the plaintiff was that the timber should have been valued by the Forest Officer at the rates given in Schedule 2 to the plaint, which are stated to be rates of royalty in force in the former Khairagarh State before the date of merger (1-1-48). At these rates, the royalty would have been only Rs. 3,018-8-0. The suit was for the recovery of the amount paid in excess.
4. On behalf of the defendant, Madhya Pradsh Government, it was stated that under Section 68 of the Indian Forest Act, the Divisional Forest Officer has full discretion to assess the valuation as he thought best and there was no thing wrong or illegal in his assessing the value at market rates. It was further stated that the-composition of the offence by the plaintiffs was voluntary and the matter is beyond the jurisdiction of the civil Court.
The rates of royalty charged to regular licensees are not applicable to offenders illegally felling the timber. Another contention raised on their behalf was that the notice given by the plaintiffs under Section 80, Civil P. C., was stated to be defective.
5. The lower Court found that the assessment made by the Divisional Forest Officer at Market rates was within his powers and was proper. On the technical objections raised by the defendant, the Court held that civil Court had jurisdiction and the notice under Section 80, Civil P.C., was not defective. The suit was dismissed. Hence this appeal.
6. Ex. D-l is Birsingh's (plaintiff No. 1) statement in which he admitted that he had illegally removed 425 logs of teak wood. Ex. D-2 is an agreement by him to compound the offence wherein he agreed to pay the composition fee in addition to 'the price, of seized forest produce and other property which may be assessed by the forest officer.' Sub-section (1) of Section 68 of the Indian Forest Act is as follows :
'The Provincial Government may, by notification in the local official Gazette, empower a Forest Officer -
(a) to accept from any person against whom a reasonable suspicion exists that he has committed say forest offence other than an offence specified in Section 62 or Section 63, a sum of money by way of compensation for the offence, which such person is suspected to have committed, and
(b) when any property has been seized as liable to confiscation, to release the same on payment the value thereof as estimated by such officer.'
In the present case, the timber which the plaintiffs had removed was liable to confiscation. According to this Section, it could be released on 'payment of the value thereof.' So far as the Act is concerned, there is nothing wrong on the part of the Forest Officer, in charging market value of the timber as the word 'value' used in Section 68 is comprehensive enough to include the 'market value'. Although the agreement Ex. D-2 is not of much consequence, the recitals therein also give authority to the Forest Officer to assess the price of the timber and there is nothing inconsistent in such price being assessed as equal to the market price.
7. Our attention has been drawn to Ex. D-8 which is a standing order issued by the Divisional Forest Officer to all Range Officers, laying down the manner in which royalty should be assessed in cases of composition of offences. This order is dated 15th April 1950 and runs as follows:
'The royalty for forest produce which is to be handed over to the accused in Forest Offence cases, should in future, be calculated at the current market rates and not the schedule of rates as was done so far.'
It appears from this document that prior to the date of the instructions contained therein the assessment of value used to be made on the basis of the 'schedule of rates' and not on the rates current in the market. It was after these orders that the method of valuation was changed.
8. It is contended by the learned counsel for the plaintiffs that the mode of valuation as laid down in Ex. D-8 should not have been applied to the present case as the offence was committed prior to the issue of these orders. Ex. D-l and Ex.D-2 which contain the request for composition are dated 21st May 1950, while the instruction in Ex. D-8 were issued earlier on 15th April 1949. This request for composition was thus made after the issue of instructions in Ex. D-l.
9. According to Section 68 of the Indian Forest Act, the discretion to assume the value is vested in a Forest Officer, duly authorized by the State Government. Divisional Forest Officers have been so authorized, is common knowledge that the Divisional Forest Officer cannot do the valuation of each item personally and has to entrust this partly to his subordinates. He can issue instruction for the sake of uniformity. Ex. D-8 is an instruction of this type. The validity of the assessment of value made has to be tested in the light of his powers under Section 68 of the Act so long as the limits imposed by that Section are not transgressed, the assessment will be proper.
10. The instructions in Ex. D-8 are not valid and have not the force of law and the argument that they could not apply retrospectively to offences committed prior to their issue has no force. They would be applicable to all valuations made after their issue and it would not be illegal to apply them to compositions of previously committed offences. Our view is that so long as the limits permissible under Section 68 of the Forest Act are adhered to, the mode of valuation lies entirely within the discretion of the Forest Officer and he cannot be compelled to adopt any particular mode.
11. To support the contention that the Schedule of rates was intended to apply to the valuation, a reference was made to the memorandum dated 17th November 1950 from the D. F. O. to plaintiff No. 2 (Ex. P-7) in which the word 'royalty' has been used in the context of the amount of assessment. It is argued that the intention all along was to charge 'royalty only and not 'market value.'
It appears that the word 'royalty' is used by Forest Officers for the amount assessed for composition without any special significance. In Ex. D-8 itself which is the standing order prescribing the market value for the purposes of assessment, the word 'royalty is used. If this word were to apply to the schedule of rates only, it would not be used at least in this document. No interference as suggested on behalf of the plaintiffs can therefore be drawn by the use of the word 'royalty' in the correspondence.
12. Our attention was next drawn, to para 114 of the Forest Manual Vol. 1 under which power has been given to the Commissioner and conservator to fix the rates for timber and forest produce district by district. The instructions contained in this paragraph have not been issued under the authority of any statute. Wherever any rules made under the authority of a statute and quoted in the Forest Manual, the section under which they are framed and the number of the relevant notification has always been given (see paras. 90, 91, 92 and 103).
The instructions given in para 114 are merely for the guidance of the Forest Officers for the sake of introducing, uniformity of the rates throughout the district. These instructions will not limit the discretion of the Forest Officer under Section 68 of the Act. Nor would the assessment of value made by a Forest Officer under Section 68 be invalid merely because it is not in consonance with these executive instructions. The rates fixed under para. 114 of the Forest Manual seem to be for the purpose of removal of forest produce by licences and are in the nature of concessions.
We hold that even if the rates prevailing in Khairagarh State are deemed to have been, continued under para. 114, they would not fetter thediscretion of the Forest Officer under Section 68 of theAct.
13. Am ther contention raised on behalf of the appellant is that as the word 'price' used in Ex. D-2 was not understood in the same sense by the parties, there was really no contract to compound. We may say that in the first place, it was not necessary to have any writing like Ex. D-2 at all. The appellants could have refused composition when they were finally asked to pay the assessed value on the ground that it was not acceptable to them. The result would have been a prosecution for the offence.
They accepted the valuation, deposited the amount and thus averted the prosecution. It is not now open to them to contend that there was no contract to compound at all. The valuation is not contrary to the provisions in Section 68 of the Indian Forest Act and is binding on the appellants.
14. In view of this finding, the contention raised on behalf of Respondent need not be discussed.
15. The appeal fails and is hereby dismissed with costs. The appellants will pay the costs of Respondent.