H.N. Sarma, J.
1. This batch of writ petitions having given raise to a common question for adjudication and as prayed for by the learned Counsels appearing for the respective parties, all the petitions are heard analogously and disposed of by this common judgment.
2. Heard Mr. T.C. Khatri, learned Senior counsel, Mr. G.N. Sahewalla, learned Senior counsel, Mr. D. Mazumdar, Mr. P.J. Saikia, Mr. D. Das and other learned Counsel appearing for the respective writ petitioners. Also heard Mr. R.K. Bora and Ms. R. Chakraborty learned Additional Senior Government Advocate appearing for the official respondents.
3. The basic challenge made in this batch of writ petitions is the jurisdiction and competence of the respondents/authorities to insist for Transit Pass and Transit Challans under the provision of Section 40 of the Assam Forest Regulation to the petitioners in respect of the stone which is being processed in the crushing units, operated by them.
4. The essential facts necessary for disposal of these writ petitions which is common to all the petitions, are that the petitioners are operating stone crushing units in their respective area on the basis of permit issued by the respondents/authorities. The purpose of setting up of this stone crushing units are for crushing stones taken from different forest mahals from the respective lessee/mahaldar and/or from the private persons. After transforming such stones/bowlders into the desired sizes after crushing in their crushing machines, the products are supplied to the different persons for selling in the market. Such permits to establish stone crushing units have been granted by the authorities in terms of the provisions contained in the Notification No. FRM 152/2001/54 dated 29th January, 2003 issued by the Principal Secretary, department of Forest, State of Assam. The aforesaid notification lays down the various provision regarding issuance of such licence to set up stone crushing unit and the necessary requirement thereof. Clause 17 of the said Notification, it is provided that any type of stone entering or leaving the premises of the Stone Crusher Unit shall be governed by TP and Transit Challan duly issued under the provision of rules. On the basis of the aforesaid enabling clause, the officials of the Forest Department are insisting for TP and Transit Challan from the petitioners in respect of the stone chips, produced in their crushing units. It is the case of the petitioners that the stone not being a forest produce within the meaning of law, the authorities are not empowered to insist for such TP and Transit Challans. Against the aforesaid action of the State authorities demanding such documents, the present batch of writ petition has been filed.
5. Contesting the petition a counter has been filed in WP (C) No. 3485/2007. It is submitted by Mr. Bora, learned State counsel that the stand taken in the aforesaid counter is the stand of the State Government in all the cases. The respondents contend that the propriety for insisting for such TP and Transit Challans has been made clear by the Notification mentioned above under which licences were issued to the petitioners allowing to set up the stone crushing unit. That apart, taking note of the meaning of the word 'stone' and referring to the Assam Minor Mineral Concessions Rules, 1994 as well as Section 3(4)(b)(iv) of the Assam Forest Regulation, 1891, it is submitted that 'stone' falls within the definition of 'forest produce'. Accordingly, the officials of the Forest Department are empowered to demand TP and Transit Challans in exercise of their right to regulate the transit of forest produce within the State.
6. I have considered the rival submissions made by the learned Counsel appearing for the parties.
7. In the backdrop of what has been noted above, now let me consider and examine the contention of the learned Counsel for the petitioners as to whether the 'stone' falls within the definition of forest produce as defined under Section 3(4)(b)(iv) of the aforesaid Regulation or not. For our ready reference provisions of Section 3(4) of the Act defining 'forest produce' is quoted below:
3(4) 'forest-produce' includes
(a) the following, whether found in, or brought from, a forest or not that is to say, timber, charcoal, cautchoue, catechu, wood-oil, resin, natural varnish, bark, lac, myrabolams, (and rhinoceros horns) and
(b) the following when found in, or brought from a forest that is to say--
(i) trees and leaves; and fruits and all other parts or produce not hereinbefore mentioned of trees.
(ii) Plants not being trees (including grass creepers, reeds and moss) and all parts of produce of such plants.
(iii) Wild animals and skins, (tusks and horns other than rhinoceros 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, bate rite mineral oils and products of mines or quarries).
8. An analysis of Section 3(4)(b) discloses that the materials stated therein including rock and minerals (including limestone, late rite mineral oils and products of mines or quarries) falls within this Clause. Whether found in, or brought from forest area are also included in the definition of 'forest produce'. The definition is an inclusive one and not exhaustive. Therefore, in order to come within the definition of forest produce, rock or minerals must be found in or brought from the forest.
9. Chapter VI of the Assam Forest Regulation, 1891 lays down the provision relating to control of Forest produce in Transit. Section 40 of the said Regulation speaks about control of all the forest produce in transit in land or water. The State Government is also empowered to make Rules regulating the transit of any forest produce. It is stated at the bar that in terms of Section 40, no such Rule regulating the transit of forest produce by land or water has been framed so far. Nonetheless the forest authorities are issuing necessary TP/Transit Challans in respect of the forest produce on transit through the departmental officers under certain executive instructions.
10. The Principal Secretary, Forest vide Notification dated 29.1.2002, indicated above has issued certain guidelines for installation of Stone Crushing Machines identified as 'stone crusher' within the State and lays down therein the procedure to be followed to obtain such permit for installation of 'Stone Crusher' Machine. While issuing such guidelines, as indicated above at Clause 17, it is provided that the 'stone' entering or leaving the premises of the Stone Crusher Unit shall be governed by TP and Transit Challan to be issued as per provisions of the rules. Therefore, it is clear that in order to attract the provisions of Clause 17 of the aforesaid Notification, the item in question i.e., 'stone' must fall within the definition of 'forest produce'. The learned Counsel for the petitioners referring to the definition of 'forest produce' and provisions of Section 3(4)(b)(iv) submits that word 'stone' is not to be found in the said definition although the word 'Rock and Minerals' have been mentioned therein. It is also contended that the query as to whether stone falls within the definition of 'forest produce' or not, came up for consideration before the Apex Court in the case of The Divisional Forest Officer, South Kamrup Division, Gauhati and Ors. v. Moolchand Saraugi Jain reported in . The Apex Court in the said case has observed that 'it is again difficult to hold that 'stone' is forest produce within the meaning of the Act.
11. The aforesaid decision of the Apex Court placed into service for consideration before the Division Bench of this Court in one case of Shri Bejiram Ingty v. State of Assam and Ors. reported in . The Division Bench referring to the decision of the Moolchand Saraugi (supra) at paragraph 6 inter alia held as follows:
The next question is whether 'stone' is a 'Forest produce'. The expression 'Forest produce' has been defined in Section 3(2) of 'the Regulation'. The question as to whether stone is a forest produce as contemplated under 'the Regulation', came up for consideration before the Supreme Court in the Divisional Forest Officer v. Mool Chand Saraugi Jain . The Supreme Court has held that it s doubtful whether stone is a forest produce. We extract the exact words used by their Lordships in Moolchand (supra).
It is again difficult to hold that 'stone' is a forest produce within the meaning of the Act.
The view expressed by their Lordships is binding on me. In fact a Division Bench of this Court, laid down the law in Praneswar Das v. State of Assam AIR 1973 Gau 51, holding that 'We are therefore constrained to hold that we are in great doubt as to whether 'stone' is a forest produce or not. We wonder how, notwithstanding the decision in Moolchand (supra), the State has remained silent as a star and immobile? Why has it failed to recast, change or amend the definition of the term 'forest produce' in 'the Regulation'? It follows, therefore, that the State has accepted that stone is not a forest produce and the meaning of the word requires no reformation. So we find no amendment in Section 3(4) of 'the Regulation'. Under these circumstances we are confirmed that 'stone' is not a forest produce. We do not propose to paraphrase the definition as the point has been concluded by the authoritative pronouncement just alluded.
12. As against this Mr. R.K. Bora, learned Government Advocate referring to another decision of this Court reported in AIR 1970 Assam and Nagaland 32, Mahendra Nath Pathak v. State of Assam and Ors., submits that in the said case it is held that what is usually found in a forest is a 'forest produce' and accordingly 'stone' falls within the definition of the 'forest produce'. In Mahendra Nath's case (supra) at paragraph 3, it has been held as follows:
3. It may be noted that the definition is not exhaustive. It 'includes' the above and there may be other kinds of forest produce. In short what is usually found in a forest is forest produce. When surface soil can be forest produce, I see no reason why sand will not be the same.
13. Contention of Mr. Bora is that in Mool Chand (supra) the Apex Court has not categorically held that the 'stone' is not a forest produce and referring to the aforesaid interpretation given to the item 'stone'. It is contended that since 'stone' falls within a particular species of rock it would fall within the definition of 'forest produce'. In Mahendra Nath (supra) the Division Bench of this Court made an observation that what is usually found in a forest is forest produce. But in Mool Chand (supra), the Apex Court has not accepted that 'Stone' is a 'forest produce'. Later on in the case of Praneswar (supra), the Division Bench of this Court also held that the 'stone' is not a 'forest produce'. In view of the above discussions, I am in respectful agreement with the interpretation given by the Division Bench of this Court holding that 'stone' is not a forest produce within the meaning of the regulation.
14. Now let me examine the jurisdictional authority of the Forest Officer to insist for TP and Transit Challans in respect of stone entering or leaving the premises of the stone crusher unit. The regulatory power of the State Government for issuing transit pass in manifest from Section 40 of the Regulation. As regards the regulation in transit of forest produce by land or water, there is no doubt about existence of such power to regulate the transit of any forest produce vested with the State authority. (Reference : and 1992 (Suppl) 1 SCC 684). The state authority having felt the necessity to regulate the transit of stone treated in stone crusher units incorporated such provisions at Clause 17 of the aforesaid Notification issuing guidelines for setting stone crushing unit, whereby the said stone crushing unit has been the subjected for issuing necessary TP and Transit Challans. The aforesaid guidelines are not in the form of rules as contemplated under Section 40 of the Regulation. Those guidelines have not been published in the Official Gazette which is one of the requirement of the rule to make such provision applicable under Section 72 of the Regulation. Such executive instruction or direction clearly appears in various forms such as, circulars, memorandum etc. and legislation which are issued by the higher authority directing the lower authority how discretionary powers are to be exercised. They also contain how internal matter are going to be governed and how the rules may be interpreted. They may also fill up the gaps in the legislation including subordinate legislation (Reference A.G. v. Doraiswami).
15. It is one of the principle of law that so long such circulars or guidelines or memorandum are not contrary to rules or any provision of law, it would remain as applicable. In the instant case, while holding that the 'stone' is not a forest produce within the meaning of definition as provided in the Regulation, such power to regulate the transit of such stone either in original or in modified form would not be the subject to the regulatory authority of the forest officials. Such regulatory however would be applicable to the 'forest produce' only. In view of the aforesaid situation Mr. Bora tried to salvage the situation taking the assistance from Assam Minor Mineral Concessions Rules, 1994 and from Section 15 of the Mines and Minerals (Development and Regulation) Act, 1957. Referring those provisions, it is contended that stone is also included in the quarry leases, mining leases under the said rules and designated forest officers have been declared as competent to issue lease on such mines or minerals. But, it is to be noted that the scope of Mines and Minerals (Development and Regulation) Act, 1957 is entirely different. The said Act was enacted to provide for development of mines and minerals under the control of Union. The rules so framed provides as to how such lease of mines and minerals are granted. No doubt, the forest officials have been made as competent authority empowering them with the duties and responsibilities with the scope and provisions of the statute as well as Assam Forest Regulation. In exercising the power under the forest regulation, the respondents/authorities cannot be permitted to fi11 up the lacuna by borrowing some provisions from the Mines and Minerals Act, in the absence of such power under the Regulation. The jurisdictional authority to deal with mine and minerals may be with higher forest officials but that does not authorize them to do certain act which are not empowered under the Assam Forest Regulation.
16. Mr. Bora also refers to the undertaken given by the petitioners while they were granted licences to set up the stone crushing units and submits that in view of the said undertaking, the petitioners have waived their right. By giving such undertaking the petitioners agreed to abide by the provisions of law regarding installation of the stone crushing machines and referring such undertaking the respondents/authorities cannot be permitted to exercise such power which are not contemplated under the provisions of law.
17. In view of the above discussions, I find that the petitioners have made out a case for interference against the action of the respondents requiring judicial review of their administrative action, impugned in this batch of writ petition. Accordingly, the action of the respondents authorities in demanding TP and Transit Challans in respect of the stone processed/to be processed in the crushing units of the petitioners stand quashed. Mr. Khatri, learned Senior counsel though raised other.' grievance regarding the authority of the present officials to demand for taking such TP and Transit Challans in respect of the finished produce, but in view of the above discussion, the learned Counsel does not finally press those points, accordingly those are not required to be answered.
18. In the facts and circumstances of the case, the parties are directed to bear their own costs.