P.K. Tare, J.
1. This petition under Article 226 of the Constitution of India challenges the collection from the petitioner of a fee of Re. 1/- per return trip by bus for use of the forest roads between Birgudi and Borai and between Nagari and Sankra.
2. The petitioner holds stage carriage permits for operating bus services on Sihawa-Borai route, which passes via Birgudi. From Sihawa to Birgudi, there is a public highway. But from Bir-gudi to Borai, there is a forest road. Similarly he holds a permit to ply buses from Dharatari to Sankra, which goes via Gattasilli Sihawa and Nagari. The road between Nagari and Sankra is a forest road, while the rest of it is a public highway.
3. The petitioner's buses were not permitted to pass through the forest roads without the sanction of the respondent On 5-12-1955, he applied for the requisite sanction. The respondent granted sanction on the following conditions.
(a) that the company runs the service entirely on their own risk.
(b) that they run the service from Sihawa and back during day light.
(c) that they take out rated pass for Rs. 5/-per return trip, or remit Rs. 150/- in advance every month.
(d) that smoking inside or outside the bus is prohibited.
(e) only petrol driven trucks are to be employed.
4. The petitioner represented to the respondent and asked for an exemption from payment of the fee. By letter dated 3-11-1956, the respondent informed that the conservator had agreed to re-duce the fee to Re. 1/- per return trip. The petitioner made further representations, which proved infructuous. From 6-12-1955 to 31-3-1958 the respondent collected Rs. 2800/- towards the fee imposed. The petitioner challenged the imposition of the fee as illegal and demanded a refund. Upon the respondent's refusal, the petitioner filed this writ petition.
5. In the present petition, the petitioner contends that the forest road is a public highway belonging to the Public Works Department o the State. He challenges the imposition of a fee by the respondent. He does not challenge the imposition of conditions (a), (b), (d) and (e) above rioted. The learned counsel for the petitioner contends that the levy of a fee for plying the bus is not warranted by any provisions of the Indian Forest Act, 1927, or any other law, and, therefore, is in contravention of Article 265 of the Constitution of India.
6. Section 25 of the Indian Forest Act, 1927 is as follows:
'The Forest Officer may, with the previous sanction of the Provincial Government or of any officer duly authorised by it in this behalf, stop any public or private way or water-course in a reserved forest, provided that a substitute for the way or water-course so stopped, which the Provincial Government deems to be reasonably convenient already exists, or has been provided or constructed by the Forest Officer in lieu, thereof.'
Rules 55 and 56 (to be found at pages 64 and 65 of Forest Manual Vol. I of 1950 Edition) are as follows;
'55. The following rules regulate the management of Public Works Department roads passing through Government forests:
(1) The area of forest land required for the construction of a Public Works Department road shall remain part of the reserved forest, but shall be placed at the disposal of the Public Works Department so far as the actual construction and maintenance of the road is concerned.
(2) The leasing of grazing and forest produce contained in such area shall remain in the hands of the Forest Department.
(3) Subject to Rule (4) below, the Forest Department shall have complete control of, and shall be competent to do any act to take any necessary measure in the area with the object of fire-protection.
(4) All trees planted by the Public Works Department alongside the road shall remain under the control of that Department
(5) The Public Works Department may remove any material required for the construction or maintenance of the road, including wood, from the area.
Areas which have already been disforested under previous rules remain unaffected by these rules.
(6) The width of first and second class roads, metalled or murrumed, will be 120 feet during the period of construction, reduced to 80 feet for permanent maintenance, that of third class or fair weather roads will be 60 feet and 30 feet, respectively.''
'56. Newly constructed forest roads within forest limits, over which no right-of-way is attached as an easement or as an easement of necessity, may be closed to other than forest traffic if such traffic is heavy and liable to damage the new road. Use of this rule should be sparingly made and only if the road in question is along an entirely new alignment or, if following an old alignment, thereis an alternative route of similar length and suitability to the old road. Before taking any action under this rule the district council affected should be informed and given an option of contributing to the cost of upkeep. When taking action under this rule the average number of carts per day carrying forest and non-forest traffic should be recorded.
The district council should be approached before a forest road is constructed and an agreement reached as to what is a reasonable contribution or improvement. It is only if such a condition is refused that the question of closure may be considered.'
Rule 6 (1) (4) (to be found at page 32 of the Forest Manual Vol. 1, 1950 edition) is as follows:
'6. (1) It is the duty of the Conservator to make frequent tours of inspection and to visit once a year as many of the forests under his control as possible. During these tours the following points should receive particular attention, and, if necessary, be especially reported on to the Provincial Government:
(4) Roads, buildings and other similar works, in existence or under construction, their cost, state or repair, new roads, buildings, or other works required.'
7. From the above, it is to be seen that the forest roads are not public highways. No person has an unrestricted right to the user of forest roads. The State Government and the conservator have the power to impose restrictions. Considering the cost of maintenance incurred by the Forest Department, it has the power to levy a fee on the user of the road to meet the costs of maintenance. A fee is in the nature of a charge for service rendered. The service is undoubtedly rendered in the present case. In return, the department is entitled to charge a fee from the petitioner of the use of the roads.
8. As the forest roads are the property of the Forest Department of the State normally meant for persons connected with the working of the department, they do not stand in the same position as public highways. The department has the right to regulate user of the roads by persons or for purposes not connected with the working of the department. We are of the opinion that the imposition of a reasonable fee for such user is neither illegal nor in contravention of Article 265 of the Constitution of India.
9. This petition fails and is dismissed summarily without notice to the other side.