A.I.S. Cheema, J.
1. Heard. Rule. Rule made returnable forthwith and heard finally with consent of both sides.
2. In nutshell, the case of petitioner is that, he had taken contract of collection of gum from Chalishgaon Forest area for the period 26.11.2008 to 30.6.2009. He had got a pass issued to transport the gum from Chalisgaon to village Pal in Taluka Raver, District Jalgaon and transported the gum. The forest officials at Pal seized the gum at Pal and sealed the same in two rooms of the house of petitioner. Petitioner claims, this act of the forest officials is illegal.
3. The petitioner has supported his claim referring to various documents filed on record. Respondents have filed affidavit-in-reply and opposed the claims made by the petitioner. The learned counsel for petitioner, on the basis of the contentions raised and documents, has submitted as follows:-
(a) The petitioner was the highest bidder in auction for collection of gum from 26.11.2008 to 30.6.2009 from Chalisgaon forest area. As per the procedure, he was required to store the gum collected at a particular godown, which was allotted to him by the forest officials. He was allotted godown at Hirapur, Taluka Chalisgaon. As per the procedure, he received transit passes to carry gum from the forest range up to the given godown. The passes are pointed out as "Annexure C" from the record. It has been submitted for the petitioner that, he had requested the Range Forest Officer, Chalisgaon and was given transit pass/order, permitting him to carry 22 quintals of Salai gum and 15 guintals of ordinary Kad gum from Hirapur godown to village Pal as per order dated 21.2.2009 (Annexure D) and the transit pass dated 11.3.2009 (Annexure E). According to the petitioner, on the basis of such pass (Annexure E), the gum was transported to village Pal at his residence and kept in two rooms.
(b) It has been submitted that, on 6.4.2009, respondent No. 4 came to the residence of petitioner and carried out two panchanamas (Annexure F) and the gum stored in two rooms was seized and the rooms were sealed. On 9.4.2009, again a panchanama was done and the gum attached was weighed and found to be 3089 Kgs. Of Salai gum and 220 Kgs. of Kad gum. The Range Forest Officer forwarded report dated 20.4.2009 to Assistant Conservator of Forest, reporting that there was no permission for storing of the said gum and truthfulness of the claim that the gum was brought on Government pass was required to be verified (Annexure G). Submission is that, the petitioner was issued another order dated 9.7.2009 (Annexure H) that the gum has been illegally collected and so, the same should be handed over to the Range Forest Officer. The petitioner moved an appeal (Annexure J), which can be said to be representation to higher authorities of the respondent No.4, claiming that the action of seizure was illegal and the gum should be handed over to the petitioner. The appeal-cum-representation was rejected on the ground that appeal was not maintainable (Annexure K). The petitioner claims that, the gum is a minor forest produce and under the jurisdiction/ control of respective village panchayats; and forest officials have no control over the same.
(c) According to the learned counsel for the petitioner, being aggrieved by the order dated 9.7.2009 (Annexure H), earlier Writ Petition No.6265/2010 (later converted into Criminal Writ Petition No.525/2012) was filed before this Court. At the time of hearing, it transpired that, principles of natural justice had not been followed while passing the impugned order and the A.P.P. submitted that show-cause-notice would be served and the points raised by the petitioner would be considered by the Deputy Conservator of Forest concerned. Consequently, the then impugned order dated 9.7.2009 was quashed and set aside and the matter was remanded to the Deputy Conservator of Forest, Yawal Forest Region at Jalgaon with certain directions. The petitioner then refers to the further developments of issue of notice to him, dated 29.10.2012; his reply dated 19.11.2012 and detailed reply dated 30.11.2012. It has been submitted that, the petitioner had then filed Writ Petition No.3643/2013 to quash and set aside the enquiry on the ground of delay and violation of directions of the Court. Respondents stated that, decision would be taken within four weeks and the Writ Petition No.3643/2013 came to be disposed of accordingly.
(d) According to the petitioner, the Range Forest Officer then conducted an enquiry and submitted report dated 3.4.2013 (Annexure S). Some statements were also recorded. According to the petitioner, empty formalities were completed by recording statements and respondent No.4 passed order dated 23.7.2013 (Annexure T), and the petitioner has been directed to hand over the gum alleging that the same has been collected from adjacent forest area. This order dated 23.7.2013 is now challenged by the petitioner, claiming that it has been wrongly held that the gum was not the same which was transported from Chalisgaon. Even otherwise, according to the learned counsel, in the area of Pal, "The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 ("Forest Rights Act" in short) has been enforced on 31.12.2007 and the rights to minor forest produce vest in the Gramsabha. It is submitted by learned counsel for the petitioner that, gum is only of Kad and ordinary type and Pal is a tribal forest area, where no auction is held. Since Chalisgaon was non-tribal forest area, there auction had been held. Pal falls within scheduled forest area under the Forest Rights Act and the tribal people in the area are entitled to collect the gum from the Pal forest area. Learned counsel submitted that, the gum was transported from Chalisgaon and even otherwise, petitioner can purchase such gum from the local tribals at Pal also and so, according to him, the seizure could not have been done. It is claimed that, the seized gum by now has become useless due to fungus and respondents are liable to pay rent for the gum stored as well as compensation.
4. Against the claim of the petitioner, the learned A.P.P. for respondents has relied on the affidavit-in-reply filed by the Assistant Conservator of Forest and referring to the documents filed on record, learned A.P.P. claims that the petition has no substance and should be rejected. Case put up and arguments for respondents are as follows:-
(a) The petitioner was given contract to collect ordinary and Kad gum at Chalisgaon Range in Jalgaon Forest Division. Ordinary gum includes Dhawada, Babool, Khair, which are edible gums, but Salai gum is not edible as it is used for making pastels (Dhoop Batti) and so it is not ordinary gum. Village Pal is remote place in Raver Forest Range of Jalgaon district. The petitioner was transporting gum from Jalgaon Forest Division to Yawal Forest Division, and so he was required to get godown approved at Pal from Deputy Conservator of Forest, Yawal Division. It is accepted that, on 6.4.2009 the house of petitioner was searched and it was found that, 3089 Kgs. of Salai gum and 220 Kgs. of Kad gum was there, but it is claimed that the gum was freshly collected and was moist. The same was seized and panchanamas of seizure and sealing of rooms were carried out. It is accepted that, on 9.4.2009 again panchanama was done and the gum was actually weighed and found that there was 3089 Kgs. of Salai gum and 220 Kgs. of Kad gum. The same was kept in the custody of petitioner. Range Forest Officer, Raver reported that the truthfulness of the claim that the gum was brought on Government Pass was required to be verified. It is submitted by the learned A.P.P., that the gum which was seized at the house of petitioner, was different as it was wet and quantity was also different. According to the respondents, the petitioner was in illegal possession of Salai and Kad gum. The Deputy Conservator of Forest, Yawal Division, under powers as per Section 72(1)(c) of Indian Forest Act, 1927 (Forest Act for short) was entitled to search the gum which had been stored.
(b) The affidavit for respondents claims that the transit permit was of 22 quintals of Salai gum and 15 quintals of ordinary and Kad gum whereas what was found was 3089 Kgs. of Salai gum and 220 Kgs. of Kad gum. According to the respondents, Maharashtra Minor Forest Produce (Regulation of Trade) Act, 1969 is applicable only to Tendu and Apta and the petitioner is wrongly referring to the said Act. The Transfer of Ownership of Minor Forest Produce in Scheduled Areas Act, 1997 does not apply in the present matter as Chalisgaon does not fall under the scheduled area.
(c) According to learned A.P.P., the gum which was seized by respondent No.4 from the house of petitioner, had been spread out for drying, as can be seen from the panchanama. Apparently it was wet. The gum which was collected in the Chalisgaon range had been transported to Hirapur godown on 21.1.2009 and 25.1.2009 as per the passes at Exhibit C. It is argued that, such gum could not have remained moist for 3-4 months when gum was seized vide panchanama dated 6.4.2009. Learned A.P.P. submits that, the forest officials rightly claimed that, the gum found in the Yawal Forest Division from the house of petitioner was not the same and that it had been illegally collected from Yawal Division where there are ample Salai andKad trees. It has been submitted that, Yawal Forest Division has many Salai, Dhawada, Khair, Kad trees, from which gum is extracted. According to respondents, there was illegal extraction in the area by making notches and removing of barks whereby the trees were being damaged and so, forest cases were required to be filed as because of such activities the trees die after some days. Respondents claim that, as per Section 78 of the Bombay Forest Rules, 1942, if a forest produce is transported, it is necessary that the pass is examined and the articles are stored in depots for the purpose. The learned A.P.P. has submitted that, the impugned order has been passed after considering all relevant factors and the petition deserves to be rejected. Reliance has been placed on Section 69 to claim that, whenever question arises whether forest produce is the property of the Government the same has to be presumed to be the property of the Government till the contrary is proved. According to learned A.P.P., the claim of the petitioner that the gum seized was transported from Chalisgaon needs to be rejected for want of proof of actual transporting and due to the difference in quantity. According to learned A.P.P., the argument of learned counsel for petitioner that Pal being in scheduled area, the gum can be purchased from local tribals also, is not maintainable as the petitioner has all along claimed that this gum was brought from Chalisgaon in Jalgaon Forest Range and no documents have been shown of purchase from local tribals in Pal area. According to learned A.P.P., although transit pass was taken from Chalisgaon, there is no evidence of actual transportation else the pass would have got endorsed on the way as required.
5. We have perused the impugned order dated 23.7.2013 of the Deputy Conservator of Forest, Yawal Division (Exhibit T). The Deputy Conservator of Forest considered the concerned documents and orders in Writ Petition filed earlier and gave opportunity to the petitioner. The concerned documents which are also part of present record, were discussed. He also obtained an enquiry report from Range Forest Officer (Annexure S in the present matter) and has dealt with the specific averments made by the petitioner, and recorded his reasons. After considering the material, he has recorded findings as follows:
"(i) Salai gum 3089 Kg. and Kad gum 220 Kg. which was seized on 6.4.2009 in the residential premises of petitioner and quantity of gum which was shown to Forest Officials vide T.P. No.093555 dt. 11.3.2009 2200 Kg. of salai gum and 1500 Kg. Kad and sada gum. The quantity of gum seized is in excess of that shown as per Transit Permit. The seized gum was wet and was spread for drying.
(ii) The petitioner was granted a contract and was authorized to collect gum from Chalisgaon Range of Jalgaon Forest Division for the period 2008-09. He has signed an agreement with Dy. C.F., Jalgaon.
(iii) On 11.3.2009 while transporting gum material from Hirapur (Chalisgaon) to Pal he has not produced T.P. at Forest check post at Bhusawal. The petitioner himself was present with the vehicle. As responsible govt. contractor of gum he should have himself shown the T.P. at Forest check post Bhusawal of Jalgaon Division. It seems that he purposefully avoided.
(iv) When he was transporting the gum material to Pal which is in the jurisdiction of Yawal Forest Division he should have applied for approval of godown to Dy. Conservator of Forest, Yawal/ R.F.O. Raver in writing. At least he should have intimated in writing to concerned R.F.O. Raver and got his stocks verified. It seems that he purposefully avoided it. Enquiry carried out by R.F.O. Raver also inferred that the gum material seized seems to be collected from adjoining forest areas around Pal village. This has been substantiated by seizure of illegal gum vehicles and Forest Officers registered for illegally making notches on Salai and other gum exuding trees in forest areas of Yawal Forest Division and in Pal forest round. Deputy Conservator of Forest Jalgaon Division letter vide No.1655 dt. 15.6.2009 also clarified that the gum material seized at residential premises of petitioner is not the same as collected by the petitioner in Chalisgaon Range considering the difference in quantity.
(v) The petitioner has collected gum from Chalisgaon Range of Jalgaon Division in the month of January 2009. He transported the gum material on 4.3.2009 as per transit permit issued by R.F.O. Jalgaon. Gum material was seized from petitioner's residential premises on 6.4.2009. After a period of 2 months from collection the gum will not remain wet. The petitioner Shri A.R. Jadhav, R/o Pal, Tal. Raver has failed to prove substantially the ownership of gum material seized from his residential premises on 6.4.2009 by Forest Officials irrespective of all the opportunities given to him. Mere possession of Transit Permit does not prove his ownership beyond doubt. There are reasonable grounds to believe that he has not transported the gum material collected by him in Chalisgaon Range to Pal, Tal. Raver which is very remote place in Tribal areas and is far from market. He purposefully avoided verification of vehicle carrying gum (forest produce in Transit) permit as per provision of Indian Forest Act 1927, and provision of Section 41. There are grounds on record to believe that petitioner had malafide intention and was found to possess 3089 Kg. Salai and 220 Kg. of Kad, sada gum collected by illegal means from forest areas around Pal. This has been confirmed by the enquiry conducted by R.F.O. Raver.
(vii) Bombay Forest Rules 1942 Section 78 prescribes Depots and their purposes to which Forest produce should be taken for examination previous to the grant of a pass in respect thereof.
(viii) As per provisions of Indian Forest Act 1927, Section 69 which states as under ;
Sec. 69- Presumption that the Forest Produce belongs to Government -
When in any proceedings taken under this Act, or in consequence of anything done under this Act a question arises as to whether any Forest Produce is the property of Government, such produce shall be presumed to be the property of Government until the contrary is proved.
In view of facts and circumstances mentioned above, the gum seized at residential premises of the petitioner Salai gum 3089 Kg. and Kad, Sada gum 220 Kg. is Govt. property as per provisions of Sec. 69 of Indian Forest Act 1927 explained earlier."
6. The petition itself shows, that when the petitioner got the tender for collection of gum in Chalisgaon area, as per procedure, he was required to deposit the same at particular godown allotted by the forest officials and was required to take transit pass even within the Chalisgaon forest range as can be seen at Exhibit C. Thus, he is aware that it is necessary to have pass for transporting and need to keep the forest produce at specified place after collection. Respondents are referring to the Bombay Forest Rules, 1942. Chapter VI deals with "Transit of Forest Produce". Rules show that no forest produce shall be moved into or from or within district except as provided in the Chapter, without a pass from some officer or person duly authorized. The chapter deals with not only Forest Passes but also Forest Depots. Petitioner claims that, from the forest division of Chalisgaon, the gum was brought to Pal, Taluka Raver vide Pass (Exhibit E). This pass specifically describes the forest produce as âSalai Gumâ â 22 quintals and "ordinary and Kad gum" as 15 quintals. Even the route is specified as Chalisgaon, Pachora, Bhusawal, Faizpur, Nhavi and via Mahemandli. No material is there to show that although transit pass (Exhibit E) was taken, the gum mentioned therein was actually transported to Pal as on the way there is Bhusawal Forest Check Post and there is no record that the petitioner got endorsed the transit pass at Bhusawal Forest Check Post. The learned counsel for petitioner has submitted that, there was nobody at the Forest Check Post and so the pass was not shown. However, there is no material to show that any effort was made to inform the authorities that there was nobody at the Check Post, so the goods have been transported further. Even when approaching remote area of Pal, the petitioner did not get the godown (or place for storage) approved for keeping the forest produce as per rules referred above.
7. The panchanamas recorded (Exhibit F), which are dated 6.4.2009, show that, when the forest officials carried out the inspection, it was found that, while some gum was stored in bundles, some of it had been spread out on the floor. The report of the Deputy Conservator of Forest having enquired into the matter, discussed the material and found that the gum found in the house of petitioner was wet. The gum as regards collection at Chalisgaon Range, was in the month of January 2009. Petitioner claims that he transported the gum in March 2009 and the same was seized on 6.4.2009. Forest officials, in discharge of their duty and experience, claim that, after a period of two month from collection, the gum will not remain wet. The learned A.P.P. says that, this is one of the reasons why forest officials have found that the gum seized at the residence of petitioner at Pal is not the same for which the pass was taken at Chalisgaon.
8. Although Pass (Exhibit E) relied on by the petitioner himself mentions that the goods were "Salai gum" to the extent of 22 quintals and "ordinary and Kad gum" to the extent of 15 quintals, (which is also the description in the passes at Exhibit C), at the time of arguments, the learned counsel for the petitioner claimed that even Salai gum is ordinary gum. He has thus tried to justify the quantity found in the house of petitioner. However, the petitioner did not object to the type of gum recorded in the documents at Chalisgaon. Even at the time of panchanamas in April 2009 he does not appear to have disputed when it was being recorded that Salai gum is found although he was present and even signed the panchanamas. As such, now he cannot claim that even Salai gum is ordinary gum. The affidavit on behalf of respondents, in para 7, claims that, ordinary gum includes Dhawada, Babool, Khair, which are edible gum, but Salai gum is not edible as it is used for making pastels. The affidavit claims (in para 19), that in the Yawal Forest Division, there are various gum producing trees viz. Salai â 7,17,802, Dhawada â 18,34,029, Khair â 3,15,936, Kad â 12,996. Thus, the affidavit is that, these are gum from different trees. In the transit pass (Exhibit E), "Salai" was shown separately and "ordinary and Kad gum" was shown separately. Record shows that, although petitioner claims that he transported 2200 Kgs. "Salai gum" and 1500 Kgs. of "ordinary and Kad gum", what was seized at his residence was 3089 Kgs. of "Salai gum" and 220 Kgs. of "Kad gum". It is apparent that, the Salai Gum seized at his house was much more than what he claimed to have transported from Chalisgaon forest area. There is substance in the submission on behalf of respondents that the gum seized at the residence of petitioner at Pal is not from authorized source and the petitioner has not been able to satisfy that it was the gum transported by him from Chalisgaon area.
9. Petitioner submitted that, gum is minor forest produce. The learned A.P.P. accepts this. It is further submitted on behalf of petitioner that, Pal is in scheduled area. Even this is not in dispute. It is then argued by the learned counsel for petitioner that, looking to the provisions of Forest Rights Act, the right of ownership of the minor forest produce vests in the Gramsabha of Pal and so, the petitioner can acquire such gum even from the local traditional forest dwellers and scheduled tribes. This argument needs to be discarded as, soon after the panchanamas dated 6.4.2009, when the respondents issued order dated 9.7.2009 (Annexure H) to the petitioner, informing that the gum is not one which has been collected from Chalisgaon and has been illegally collected, the petitioner had taken up representation to superiors vide Exhibit J. In this representation dated 24.7.2009 and even subsequently, the petitioner has all along claimed that it was the same gum which he had collected in the Jalgaon Forest Division from Chalisgaon and had claimed that he had transported the same and so, he was legally in possession. In the representation dated 24.7.2009 (Annexure J), petitioner did not claim that the gum had been purchased locally from persons who have acquired forest rights under the Forest Rights Act, 2006. It is rightly argued by the learned A.P.P. that the petitioner has even otherwise failed to show any document of locally purchasing at Pal. According to the respondents, as per Section 4 of Forest Rights Act, there is recognition and vesting of forest rights mentioned in Section 3 in forest dwelling Scheduled Tribes and other traditional forest dwellers. As per Section 6, the Gramsabha is the authority to initiate the process for determining the nature and extent of individual or community forest rights or both that may be given to forest dwelling scheduled tribes and other traditional forest dwellers within the local limits of its jurisdiction. Petitioner has not shown document to show purchase from any such Scheduled Tribes as traditional forest dwellers.
10. Respondents claim that, outside the jurisdiction of the Panchayat, the rights still remain with the Government. Pal village is adjoining forest area belonging to the forest as well as Wildlife Sanctuary Area. Section 4(1) of The Maharashtra Transfer of Ownership of Minor Forest Produce in the Scheduled Areas and the Maharashtra Minor Forest Produce (Regulation of Trade) (Amendment) Act, 1997 reads as under: -
"4. Ownership of Minor Forest - Procedure to vest Panchayat.
(1) The ownership of Minor Forest Produce found in the Government lands in the Scheduled Areas, excluding the National Parks and Sanctuaries, shall vest in the Panchayat within whose jurisdiction such area falls.
Explanation.- The expressions "National Parks" and "Sanctuaries" used in this section shall have the same meanings respectively, assigned to them under the Wild-life (Protection) Act, 1972."
11. Thus, areas of National Parks and Sanctuaries are excluded. Again, Panchayat also has to adhere to the prescriptions contained in the Working Plan, Management Plan or Working Scheme under Section 5. Respondents are claiming that the gum seized is illegally obtained from adjoining forest of Pal and in the circumstances, is suspect. Respondents, in the circumstances, rely on presumption under Section 69 of the Indian Forest Act, 1927 to claim that until contrary is proved, the forest produce shall presume to be the property of the Government. Keeping in view the particulars as to how illegal extraction of gum leads to death of trees, if petitioner has to succeed, reliable proof has to be there. The same is wanting.
12. For reasons discussed, it cannot be found that the petitioner is able to show that the gum seized from his residence at Pal was one which he transported from Chalisgaon area. In the absence of showing legal source of acquiring of the minor forest produce, the action of the respondents cannot be faulted with. The impugned order (Annexure T) cannot be said to be illegal or arbitrary.
13. There is no substance in the Writ Petition. The same is rejected. Rule is discharged.
14. Heard. Interim relief dated 6th September 2013 is extended till 23rd November 2013.