P. Ramakrishnan, J.
1. These writ petitions deal with connected matters and therefore they were heard together. The petitioners in these writ petitions seek for relief against the operation of the Madras Preservation of Private Forests Act, 1949 (Madras Act (XXVII of 1949), which has been extended to certain well-known jagirs on the Kalriyan Hills, known as Jadaya Goundar Jagir and Kurumba Goundar Jagir. The South Arcot District Gazetteer refers to a third similar jagir on the same hills called Ariya Goundar Jagir. But we are concerned in these writ petitions only with the first two jagirs. The present proprietor of Kurumba Goundar Jagir is the petitioner in Writ Petition No. 1896 of 1965 and the first petitioner in Writ Petition Nos. 1571 of 1964 and 4622 of 1965, and the present proprietor of Jadaya Goundar Jagir is the petitioner in Writ Petition No. 1828 of 1964. The principal contentions of the petitioners in the writ petitions can be set down briefly as under.
2. The petitioners in Writ Petition No. 1828 of 1964 and 1896 of 1965, who are the proprietors of Jadaya Goundar and Kurumba Gaundar Jagirs respectively urge that from time immemorial a certain form of cultivation had been carried on in the hill tracts of the jagirs described as ponal kadu cultivation, a process which can be succinctly described as shifting cultivation. The hill folks who reside in the hills obtain their food by such cultivation. This is a customary right which they had been enjoying. After the notification of the forest areas in the jagirs as private forests under Section 1 (2) of the Madras Preservation of Private Forests Act, 1949 (hereinafter called the Act), the officials in the forest department, under threat of prosecution, have been preventing the petitioners as well as the inhabitants of the hills, from carrying on ponal kadu cultivation, on the plea that such cultivation involve the clearing of shrubs and trees, that for the purpose of cutting trees, prior permission of the District Collector is required under Section 3 (2) of the Act, and that without such permission ponal kadu cultivation cannot be allowed. The petitioners in these two petitions urged that such prevention involves an interference with the customary rights of the petitioner as well as the inhabitants of the hills. The very purpose for which the Act was passed, includes the preservation of customary and prescriptive rights in private forests, besides the prevention of indiscriminate destruction of private forests. It is urged by the petitioners, that arbitrarily putting a stop to ponal kadu cultivation, has interfered seriously with the customary and prescriptive rights mentioned above, and that a writ of mandamus should issue to the respondents, namely, the District Forest Officer, South Arcot at Cuddalore and the State of Madras by the Collector of South Arcot at Cuddalore, forbearing them from interfering with ponal kadu cultivation in the limits of the jagirs above mentioned.
3. In Writ Petition No. 1571 of 1964, the petitioner is the proprietor of the Kurumba Goundar Jagir. It is alleged by the petitioner, that one of the incomes of the jagirdars consists of the receipts for the removal of timber and forest produce, from the hills. It was usual for the jagirdars to grant licences to the residents of the hills, to cut and gather wood and minor forest produce, subject to the obligation of selling them to the jagirdar or his nominee at market price, without selling to anybody other than the jagirdar. The jagirdar leases out his right in respect of such produce to a contractor. It was the practice for the residents of the hills to gather the produce and bring them to a depot maintained by the contractor of the jagirdar, and afterwards the contractor transports the produce thus gathered, to other places. To enable the contractor to transport the produce outside the Jagir limits, it was the practice for the jagirdar to issue permits in respect of the produce. After the Act was extended to the jagirs in question, an objection was taken to the grant of permits for transport of produce by the jagirdar. The jagirdar and his contractor filed a writ petition (W.P. No. 887 of 1952) and it came before Rajagopala Iyengar, J., who directed that the Government ought not to interfere with the rights of the jagirdars to purchase and dispose of the forest produce in accordance with the customary usage and transport it in the customary manner. Thereafter, till 1959, the jagirdar was allowed to remove the said produce on permits issued by him, without any interference by the officials of the forest department. However in 1959, the forest department began to insist that for such transport, Form II permits issued under the Timber Transport Rules of the forest department should be issued. When the jagirdar approached the forest officials at Kallakurichi, for the issue of Form II permits, they gave him a great deal of trouble including delay on issue, and restricted the number of permits. On each occasion when the jagirdar wanted to obtain a permit, the Forester would insist upon an examination of the stock, and this would lead to a greatdeal of delay in the issue of permits in question. In the meantime the forest materials being liable to speedy decay, would have decayed, and led to considerable loss and damage. The jagirdar again filed a writ petition in this Court (Writ Petition No. 12 of 1962) which came up for hearing before Jagadisan, J. While dealing with that writ petition, the learned Judge noticed that even under the Timber Transport Rules, the owner of a private forest, can himself issue the transport permits, provided the permits are affixed with a seal by the forest department--Officials to ensure the bona fides of the receipts subsequently produced by the contractor engaged in transporting them. An assurance was given before the learned Judge by the Additional Government Pleader, that the department would take steps to issue permits without unnecessary dealy in future. Learned Counsel appearing for the petitioner also made a complaint to the Court, that he would have no objection to the transport of goods under permits so long as there was no delay or obstruction caused by the forest department. The learned Judge observed that in the above circumstances, the petitioner had failed to make out a case for the issue of a writ of mandamus. But he closed the judgment with the remark that in future, if the petitioner were to meet with any opposition or obstruction, on the part of the forest department, in the matter of removal or disposal of the forest trees, contrary to the provisions of the rules and the relevant statute, it would, of course be open to him to move the Court for appropriate relief.
4. The petitioner now urges that the officers of the Forest Department instead of affixing their seal to permit books produced by the petitioner as was the practice at the time when the above judgment of Jagadisan, J., was given, now rely upon an amendment of the relevant Timber Transport Rules, and insists that the petitioner should purchase on every occasion permits issued by the officials of the forest department at 5 nP. for each permit. The petitioner urges that by this insistence, the same difficulties that prevailed at the time when the earlier writ petition came before this Court, have come into existence again and the petitioner is constrained to file this writ of mandamus for directing the respondents to forbear from interfering with his transport of forest material gathered within the limits of his jagir to places outside the jagir.
5. Writ Petition No. 4622 of 1965 is filed by the first petitioner, the proprietor of Kurumba Goundar-Jagir, and petitioners 2 and 3, to whom the first petitioner granted a lease for two years from 23rd July, 1965, for gathering produce, for extracting timber, bamboos etc., and for removal of wind-fallen and dead trees from the jagir area. While the Collector of South Arcot had granted sanction for such lease to a lessee Dasaratha Mudaliar on 12th July, 1963, in regard to the lease of petitioners 2 and 3 the Collector had refused the necessary permission by order dated 14th October, 1965, purporting to be passed under Section 3 (1) (a) of the Act and without any reasons for the refusal.
6. The petitioners urge that both Section 3(1) and Section 3 (2) of the Act constitute unreasonable restrictions on the rights of the first petitioner to hold and enjoy property that they are ultra vires and invalid, and that they should be struck down as unconstitutional being opposed to Articles 14 and 19 (1) (f) of the Constitution of India. The prayer in this petition is for the issue of a writ of mandamus directing the respondents, namely, the State of Madras and the District Forest Officer to forbear from interfering and obstructing the enjoyment of the first petitioner of the forest at all by granting leases or licences. Before dealing with the prayers of the petitioners and the reliefs which could be granted to them, I will consider briefly the scope of the Act and the background against which the Act was enacted. At the time when the President's Act (XII of 1954) was passed for extending the life of the Act, there is a reference in the following terms to the background of the Act:
The Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949) was passed with a view to prevent the indiscriminate destruction of private forests and interference with the customary and prescriptive rights therein. It requires the previous sanction of the District Collector for selling, mortgaging, leasing or otherwise alienating private forests.
The Act applies to forests situated in estates as defined in the Madras Estates Land Act, 1908 (Madras Act I of 1908) and also to private forests situated in other areas in the State of Andhra having a contiguous area of 100 acres which may be declared by the State Government to be forests for the purposes of the Act by notification in the Gazette.
The life of the Act was extended from time to time and on the last occasion when this was done upto the 2nd December, 1954, it was anticipated that a Bill which was then under contemplation for amending the Madras Forests Act, 1882 (Madras Act IV of 1882) and which was to embody inter alia the essential provisions of the Madras Preservation of Private Forests Act, would be passed into law before that date. This Bill is, however, still under consideration. Apart from this, there are still several estates which are yet to be taken over under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 to which the Abolition Act aforesaid does not at present apply, such as the estates in which both the melwaram as well as the kudiwaram vest in the landholder etc. The need for preserving the forests in all such estates and for giving protection in respect of the private forests situated in areas other than ' estates' in the State, therefore, remained as before. As the Madras Preservation of Private Forests Act, 1949, expired on the 2nd December, 1954, the provisions of that Act were enacted by-President's Act (XII of 1954) and the life of this Act extends upto the 2nd December, 1956. As there is no change in the circumstances, which necessitated the enactment of this Act, the Government consider it desirable to re-enact this Act with a slight modification designed to extend the life of the Act upto 2nd December, 1957.
The Andhra High Court in a decision reported in Balarama Chetty v. State of Andhra Pradesh (1957)2 An.W.R. 272, to which I shall make a further reference later in this judgment, observed at page 279 of the report:
The Legislature intended to bring in legislation not only in regard to estates not covered by the Madras Estates (Abolition and Conversion into Ryotwari) Act but also to amend the Madras Forests Act, 1882. The contemplated Act, therefore, was not only to regulate the rights inter se between contending parties namely landholders and ryots but also to prevent the denudation of forests. In anticipation of the Act, as a temporary measure, the landholders were prevented from cutting the trees without the previous permission of the Collector.
7. In Madras, following the Act passed in 1949, another legislation, Madras Act (LV of 1961) was passed, providing for the taking over of the management of the private forests in certain areas in the State of Madras. The gist of this last mentioned Act, is that the Government is empowered to take over the management of any private forest whenever the Government think that it is necessary to take over its management, in the public interest or in order to secure proper management, After takingover such management, the Government is required under Section 7 of the said Act to pay compensation at a certain rate to the owner of the forest. During the period of management, the Government have got powers of preserving, administering and managing the private forest as stated in Section 5. Section 6 provides for the release of the forest from the Government management, either at the time specified in the notification, or even earlier, and the Government at that time is required to restore the private forest to the owner in as good a condition as it was when possession was taken. This later Act also states that it provided for the taking over of the management of private forests only for a limited period. It may be noticed that this last mentioned Act was passed long after the Estates Abolition Act, it did not exclude from its operation even forests belonging to private owners if the requirements of ' forest' as defined in the Act are satisfied. The prime purpose of these temporary enactments was to safeguard forest wealth of the country and also the public interest in such forests. Whereas in Madras State the steps contemplated by the Legislature for ensuring a measure of protection over private forests to preserve the forest wealth of the country in the interest of the public, comprised two stages, one under the Preservation of Private Forests Act, 1949, and the second under Madras Act (LV of 1961), in a similar provision for the taking over of the management of private forests, in Bihar, Bihar Act (XI of 1948), the entire process was covered by a single enactment. The procedure outlined in the Bihar Act has got analogies to the procedure for land acquisition. There is an initial notification, when there is a proposal before the Government to constitute a private protected forest. These objections are heard, an enquiry is held, and finally the forest is declared to be a private protected forest. On such declaration, the Government take over the management of the forest, and there is a provision for payment, during the period of the control by the Government, of an allowance to the owner of the forest at a prescribed rate by way of compensation. Unfortunately, in the working of the corresponding enactments in Madras State long intervals ensued between the notification extending the provisions of the Act (XXVII of 1949) to particular private forests as in the present case, and the subsequent action under Act (LV of 1961) which provides for the actual taking over of the management of such forest by the Government with payment of a compensation to the owner. In the interval, the owner has himself to manage the forest subject to the several restrictions imposed by the Act of 1949. That is the position of the two private forests in these present writ petitions. Even today their management had not been taken over under Act (LV of 1961) and the landholder continues to be subject to the restrictions imposed upon him by the Act of 1949. This state of affairs appears to ignore the fundamental position that the Act of 1949 was by its Very nature only to be temporary. The Preamble to the Act has left it vague as to whether the interim nature of the Act of 1949, was pending an Act like Act (LV of 1961) providing for the management by the State of such forests or pending the taking over of such forests by the Government under the Estates Abolition Act. But it is clear that the Madras Estates (Abolition and Conversion into Ryotwari) Act had become law even in 1948. But the application of that Act to particular estates followed by the taking over of the estates by the Government very often took a great deal of time, and it is quite possible that the Act of 1949 also had in view the time covered by such a procedure also. It was stated at the time of the hearing of the present writ petitions that the taking over of the two hill jagirs by the Government under the Estates Abolition Act has been stayed by an order of the Supreme Court, and therefore the Government have not found it possible to take over either temporary management under Act (LV of 1961), or the estates altogether under the Abolition Act. This situation led to the forest lands in the two jagirs mentioned in the petitions being made subject to the restrictions imposed by the Act of 1949, without either of the two subsequent proceedings, which were naturally expected to follow, taking place within a reasonable limit of time, whether the taking over of temporary management under Act (LV of 1961) or abolishing the jagirs altogether and vesting in the Government under the Abolition Act. With this preliminary account of the background of the relevant legislation it is possible to deal with the claims of the petitioners in these writ petitions under the following headings:
1. Ponal kadu cultivation is a customary right enjoyed by the villagers resident in the hill villages in the jagirs. Requests from the cultivators for permission for the purpose had been turned down summarily by the forest authorities on the ground that ponal kadu cultivation involved the cutting of trees, and the permission of the District Collector for such cutting of the trees under Section 3 (2) should be required; but the Collector was not prepared to grant such permission on the ground that ponal kadu cultivation would have the effect of destroying the forests, or, as put in the counter-affidavit of the respondents, ponal kadu cultivation:
is the most undesirable form of cultivation one could think of, and by the indiscriminate burning of saplings, in the course of large scale ponal kadu cultivation, quick denudation of vast forest areas is the resulting evil which has to be prevented, and the Madras Preservation of Private Forests Act and its provisions are available to prevent this evil.As against this, the petitioner's Learned Counsel has referred to an account in the South Arcot District Gazetteer (1906) in two places. At page 149, there is the following reference to the adverse effect of ponal kadu cultivation:.the growth in these poligars' forests has been greatly degraded by the unrestricted shifting cultivation (punakadu) which has been carried on in them for years and which consists in felling and burning a patch of jungle, cultivating it in a casual manner for a couple of years and then deserting it in favour of a fresh patch.What is objected to is only the unrestricted ponal kadu cultivation, but not where it could be suitably restricted. At page 333 of the Gazetteer it is observed that ponal kadu or shifting cultivation is carried on the wooded slopes, the jungle being cleared and burnt, the ground ploughed, and the seed sown broadcast, and that after one or two crops have been thus taken off it, the land is left fallow for a time until the growth has re-established itself, when the process is repeated. Learned Counsel for the petitioners also has referred to a similar practice in the private forests in the Northern Sircars, which the forest department itself has recognised as proper for suitable control. At page 41 of the Madras Forest Manual, Volume II, under the heading ' Rules to regulate the management of the forest and waste lands in the Vizianagaram Estate ', there is a provision for residents in the hill villages to carry on the kondapodu cultivation subject to restrictions as to how the cultivation has to be effected. At page 22 of the same Manual, provision is made for podu cultivation by jungle people in the forest and forest lands in Bhimavaram estate. These provisions are relied on by the learned Counsel for the petitioners in these writ petitions for the purpose of urging that a wholesale prohibition of ponal kadu cultivation will interfere with the customary rights of the residents of the hill villages, and considering that for a long time the two hill estates have been put under the restrictions of the Act of 1949 and it cannot be predicted when these restrictions will be removed, it will be appropriate to permit ponal kadu cultivation with suitable restrictions regarding acreage. locality, the kind of trees that may be removed for making the land fit for cultivation, and also providing for the regeneration of the forest. Such restrictions may be provided for by a suitable notification under Section 6 of the Act. This is the subject-matter of Writ Petition Nos. 1828 of 1964 and 1896 of 1965.
It appears to me, on a careful consideration of the circumstances set out above, that the approach made by the respondents that ponal kadu cultivation should be completely prohibited as it would have the effect of destroying the forests, and that it is a most undesirable form of cultivation one could think of as it would lead to quick denudation of vast forest areas, cannot be supported. That hill areas, which contain jungle growth, can be cultivated and were being customarily cultivated by the hill tribes living therein, appears to be plain from the circumstances set out in the South Arcot District Gazetteer and also from the practice recognised by the rules framed in regard to private forests in the other zamindari areas of the Northern Sirkars when they were part of the Madras State before 1953. What appears from these rules is that such cultivation is liable to a great deal of abuse, and even destructive of the forests, if they are not carefully controlled by permit, and the controls enforced by the suitable supervision by the forest authorities, whenever the request is made for permits for such cultivation by the tribes who live inside the hill forests. Total deprivation of this customary right must be viewed as one which cannot be permitted under the Act of 1949. The Preamble to the Act itself states that one of its objects was to preserve customary rights and at the same time save private forests from denudation. Where a system of permits and also proper control for enforcing the condition of those permits can be improvised, there is no reason why the Collector, purporting to act under the powers granted to him by Section 3 (2) of the Act, should prohibit ponal kadu cultivation altogether as he has done in this case.
In this context, petitioners' learned Counsel draws my attention to the fact that while there is a power granted to the State Government in Section 10 (1) of the Act to make rules for carrying out the purpose of the Act, the rules so far framed by the Government contain only directions to the Collector for the purpose of exercising his discretion under Section 3 (2) of the Act for grant of permits to cut trees; the rules provide for the classes or kinds of trees which may be permitted to be cut and the girth of such trees, the terms and conditions subject to which permissions may be granted and the procedure to be followed by the Collector before granting permission, items which are also mentioned in Section 10 (2) (a), (b) and (c) of the Act. It is urged by the learned Counsel that grant of permission for ponal kadu cultivation must be viewed in a wider context than permission for cutting trees under Section 3 (2); and such permission should be provided by Section 6 (ii) of the Act which enables the State Government to issue notifications to regulate the exercise of customary or prescriptive rights in private forests. What is, therefore, urged by the learned Counsel for the petitioners, is that this Court should give a direction to the State Government to issue a notification under Section 6 (it) of the Act for the regulation of ponal kadu cultivation on the analogy of parallel notifications extracted earlier in regard to Zamindari's private forests in the former Northern Sirkars. Learned Counsel also draws my attention to the observations of the Andhra Pradesh High Court in Balarama Chetty v. State of Andhra Pradesh (1957) 2 A.W.R. 27 viz.:
The machinery provided by the restrictions should not confer an unregulated and arbitrary discretion on a single individual and the power conferred should not be far in excess of what is required in the interests of the public and for achieving the object for which the particular legislation was enacted. Legislative practice may provide different guides and checks for the exercise of individual discretion. The Act itself may prescribe the standard by which that discretion should be exercised or the statutory rules may afford a guide for its exercise. Such a power is almost always controlled by an appellate authority or by civil Courts. Even if a statute does not in terms enjoin on the officer to give reasons for his order, it is implicit in the exercise of judicial or quasi-judicial power that the person or tribunal exercising that power should give reasons, that is, should act judicially, particularly when his order is subject to an appeal. Even if a statute is not struck down as unconstitutional, particular orders made under that Act : are liable to judicial review if the powers are exercised arbitrarily and capriciously and if they amount to unreasonable restrictions on the fundamental rights of citizens.Summing up, in my opinion, the circumstances clearly justify the issue of notification by the State Government regarding the regulation of ponal kadu cultivation. The necessary notification may be issued under Section 6 (ii) of the Act or by rules under Section 10 (2) of the Act, which gives power to the State Government to make rules for carrying out the purpose of the Act. Such power would also include the preservation of customary or prescriptive rights. Such rules would prevent the officers, entrusted with the duty of granting permits or permission, from acting arbitrarily or capriciously in individual cases. But until such time when a notification of the above kind is issued or rules like those mentioned above are prescribed, it appears to me that the present order of the District Collector summarily rejecting the request for ponal kadu cultivation cannot be upheld. He has not given any reasons for the order, and the Andhra Pradesh High Court decision above cited, has commented that the failure to give reasons will deprive the appellate authority as well as the aggrieved party, of an opportunity to find out whether the refusal has been for proper reasons or for arbitrary reasons. In the circumstances, the order has to be, and is accordingly, quashed with a direction that the District Collector should reconsider the application on merits and dispose of it in the light of the principles set down above.
2. Secondly it is urged that relying upon an amendment of the Timber Transport Rules, the forest authorities are insisting upon the petitioners-landholders obtaining a permit every time when minor forest produce or windfallen or dry timber is removed by a contractor from the places where those articles are stored inside the forest. They are also required to pay 5 paise for each permit. The judgment of Jagadisan, J., in Writ Petition No. 12 of 1962, referred to earlier, clearly gave a direction that the landholder should use his own forms for the necessary transport licences, after getting them affixed with the seal of the forest department. The giving up of this procedure and insisting upon individual permits issued by the forest department cause undue harassment to the contractors under the landholders and should be remedied.
The answer of the department to this claim in their counter affidavit states that when in compliance with the directions in W.P. No. 12 of 1962 the petitioner produced his privately printed permit books before the Forest Officer for affixture of seals, the Forest Officer called upon the petitioner to furnish certain particulars regarding the locality and the approximate quantity for which Form II permits were required by him. Thereupon, the petitioner preferred a petition to the Collector of South Arcot to direct the District Forest Officer to affix unconditionally his seal on the printed Form II books produced by him. The Collector declined to comply with the request. The counter proceeded to allege that there was, subsequent to the disposal of W. P. No. 12 of 1962, an amendment of the Madras Timber Transport Rules, which obliged private owners of forests to restrict themselves to Form II permits printed and supplied by the Range Officer on payment of 5 paise for each Form and directed that no other permits should be used. In view of the above subsequent developments the forest department were not in a position to comply with the directions in W.P. No. 12 of 1962. It was urged that the Timber Transport Rules imposed reasonable restrictions in the interest of the public, and the petitioner, even though he is the owner of the private forest', is obliged to comply with the rules.
After a careful consideration of the arguments for and against, it appears to me that the real conflict between the petitioner on the one hand and the authorities of the forest department on the other can be narrowed down to a very limited area and is also capable of a simple way of resolution. The petitioner's real grievance arises from the fact that every time when there is an application by a contractor to remove a heap of timber or forest produce from the depot where the villagers have stocked it, the contractor with the assistance of the landholder is obliged to seek the local Forest Officer and apply for a separate permit. Often the Forest Officer will be camping in a distant place and during the time taken to arrange for a meeting with him and for answering the points raised by him, the produce itself would decay or deteriorate and would be of no use to anybody. It was to provide against such a contingency that, before the amendment of the Timber Transport Rules, the landholder used a set of Form II books prepared by him; but to see that there is no abuse of such forms, the safeguard of getting the seal of the forest department affixed to the form books in advance was resorted to. At the present moment the forest department has gone a step further and insist upon the landholder using the forms got printed by the department itself. In such a situation it will be proper for the forest department to direct the landholder to purchase Form II books from the forest department in advance and use forms from such books for supply to the contractor. The books containing the forms can be supplied by the forest department to the landholder on the latter making an indent for the purpose in advance, and the actual quantity of the books being calculated on a reasonable estimate of the landholder's requirements based upon the previous years' figures. Learned Counsel for the petitioner states that the landholder will be quite willing to pay for such books issued in advance the charges calculated at the rate of 5 paise for each form in the book. If this course is adopted, it will amount to substantial compliance with the revised Timber Transport Rules and at the same time carry out the spirit of the directions given by Jagadisan, J., in W.P. No. 12 of 1962 and also save the landholder as well as his contractor from undue hardship envisaged above. Therefore, in regard to this complaint of the petitioner, there will be a direction that the authorities of the forest department should issue permit books in Form II in advance to the landholder on the latter's indent, keeping in mind the other principles mentioned above.
3. The third point arises from the pleadings in W.P. No. 4622 of 1965. The gravamen of the charge of the petitioner in this case is that while the Collector of South Arcot had been granting in prior years sanction for the leasing out of the forest produce, suddently and arbitrarily he had refused to approve a lease granted by the proprietor for two years from 23rd July, 1965 to petitioners 2 and 3 in this writ petition for gathering forest produce and for removal of windfallen and dead trees from the jagir area. It is urged by the learned Counsel for the petitioners that the section of the Act in the above form interferes with the fundamental rights of the petitioner in regard to enjoyment of his property and must be struck down as ultra vires under Article 19 (1) of the Constitution. Learned Counsel also submitted that when a similar ground about the constitutional validity of Section 3 (1) was raised before the Andhra Pradesh High Court in the decision cited earlier Balarama Chetty-v. State of Andhra Pradesh (1957) 2 A. W.R. 272, while the Bench held that Section 3 (2) was intra vires, they observed that the question of the vires of Section 3 (1) did not arise for consideration in the circumstances of the particular case. Learned Counsel urged that under the definition of owner ' in Section 2 (b) of the Act, a mortgagee, lessee or other person having right to possession and enjoyment of the forest by assignment from the original owner would still be within the scope of the control proposed to be exercised in view of the Preservation of Forest Act. Therefore, a ' blanket order ' by the District Collector refusing to sanction a lease as in the present case, must be considered to be arbitrary and not in furtherance of the purpose of the Act. One can visualise a case where an owner of a forest proposes to parcel out the forest into small bits with the result that each bit is less than the required minimum area, under the Act to constitute a forest, and by such sale in fragments he can defeat the purpose of the Act by making it very difficult to enforce control and also management. A similar objection may be raised also in respect of mortgages of forests in piecemeal portions. But on the other hand it is a well-known method of forest exploitation recognised even in the case of Government forests for the owner of the forest to lease out the rights to gather produce to contractors whether in respect of the entire area or in respect of parcelled-out areas with suitable conditions. When the District Collector, as in the present case, refused to accord sanction for the leasing out of the right to collect forest produce to a contractor without assigning any reasons, it is difficult to determine by reading the order whether the Collector acted capriciously or within his rights for proper reasons. As pointed out by the petitioner there is the circumstance that on a prior occasion. the Collector had granted sanction. It appears to me that so far as the prayer in this writ petition is concerned, it is not necessary to strike down Section 3(1) (a) of the Act itself as ultra vires and unconstitutional. For one thing Section 3 (1) does not contain an absolute prohibition. It allows for certain transaction to be sanctioned with the previous sanction of the Collector. This restriction can be viewed as reasonable where the provision for the grant of previous sanction is enforced from the point of view of the public good visualised in the Preamble to the Act, namely, preventing indiscriminate destruction of private forest and interference with the customary and prescriptive rights. But where in any given case the data show that the power under Section 3 (1) (a) had been exercised arbitrarily or capriciously, it will be a proper case for striking down the order and for a direction that the application for sanction be considered on merits and in the light of relevant principles. Therefore, so far as this prayer is concerned, I shall content myself in this writ petition with striking down the order of the Collector refusing to sanction the lease outright without any reasons being given in support. The Collector will be directed to restore the application to his file and dispose it of on merits and for adequate reasons.
8. The Writ Petitions are allowed as above. No order as to costs.