ORDER
1. These writ petitions, though at the instance of different petitioners, are dealt with together, as they involve a common question. It would suffice in this connection to notice the facts in W.P. No. 10061 of 1984. The petitioner in that case had taken a lease from the pattadars of the right to peel off bark in the trees standing thereon. In the course of enjoying such rights as lessee, the petitioner had been peeling off bark from Wattle trees, Bluegum trees, etc. The Wattle bark thus peeled of by the lessee is packed and transported from the patta lands of the pattadars to the markets. In the process of moving the wattle bark and other bark so removed from the patta lands, the Forest officials stopped either the pattadars of lessees and obstructed the movement of the bark and even attempted to confiscate it, as if some provision of law had been violated claiming that Wattle bark is not tree or timber and that the Timber Transit Rules would not apply, that as the lessees of the right to remove or peel off bark from the trees standing in the lands of the pattadar they had the right to transport the bark peeled off and that the forest officials had no authority whatever to obstruct them, the petitioners have prayed for the issue of a writ of mandamus directing the respondents and their officers and servants to forbear from interfering with the rights of the lessees to peel off, store and transport wattle bark to the market from the private patta lands of the lessor-pattadars.
2. In the counter-affidavit filed by the respondents, they did not refer to any statutory provision under the Forest Act or the related enactments and the rules framed there under as justifying the interference with the movement of bark by the Forest officials. While accepting that Wattle bark collected by peeling off the bark from the natured wattle trees which are grown in the Reserve Forests as well as patta lands, it was admitted in Para 2 of the counter-affidavit that movement of bark may have to be regulated by the issue of transport certificates by the Ranger after verifying the origin of the bark. The respondents took the stand that though wattle bark is not timber as defined in the Tamil Nadu Forest Act, 1882, yet it would be forest produce and therefore subject to the relevant provisions contained in the Forest Manual. The interception and checking of the movement of the bark by the officials of the Forest Department was stated to have been resorted to prevent illegal removal and illicit transport of Wattle bark from the Government forests under the guise of removal of the same from the trees belonging to the pattadars. The respondents therefore maintained that they were only attempting to check and prevent illegal transactions and unlawful acts and not to interfere in the lawful pursuit of business activities in wattle bark.
3. The teamed counsel for the petitioners contended that there is no provision either in the Tamil Nadu Forest Act or other related enactments or the rules there under to prevent the peeling off and transport of wattle bark from the trees in the patta lands and that the respondents had no authority or power to intercept and obstruct the movement or the transport of the Wattle bark collected from the wattle trees standing in the patta lands. The learned Government Advocate for Forest Cases, while frankly accepting that there is no statutory provision or rule in the matter of regulation of the movement of peeled wattle bark similar to Timber Transit Rules, however submitted that wattle bark would be forest produce and relied upon Ss 41 and 56 of the Tamil Nadu Forest Act to sustain the power of the Forest officials to check and intercept the movement of wattle bark
4. The learned counsel for the petitioner in W.P. No. 1457 of 1984 invited attention to the communications of the second respondent herein dt. 14-2-1981 and 28-5-1981 to support the contention that wattle bark does not come under the description of 'timber' and the Timber' Transit Rules do not apply and. therefore, the Forest authorities did not have the power to stop the movement of wattle bark peeled off from the trees standing in the patta lands of the private owners.
5. It is necessary at this stage to bear in mind the process by which the wattle bark is removed from the tree. Ordinarily the bark is peeled off from a standing tree and this does not involve the felling of the tree also That the collection of wattle bark is done merely by peeling the bark is also admitted in Para1 of the counter of the respondents. It is not the case of the respondents that unless the trees are felled, the wattle bark cannot be peeled. Therefore, the peeling off the bark and the felling of the tree are two distinct and unrelated operations. Under S. 2 of the Tamil Nadu Forest Act, 1882, 'timber' is defined as incl4ded trees when they have fallen or have been felled, and all wood, whether cut up or fashioned or followed out for any purpose or not. It is not the case of either the petitioners or the respondents that the wattle bark trees have been felled or cut up or fashioned or hollowed- out and, therefore, the wattle bark would not fall within the definition of 'timber'. However, under S. 2 of the Tamil Nadu Forest Act, 1882, 'Forest produce' has been defined to include 'bark' Wattle bark would, therefore, be forest produce within the meaning of the Tamil Nadu Forest Act. While the Timber Transit Rules govern the movement of timber as defined in the Act, there is no corresponding statutory provision or even rules with reference to the transit of forest produce Indeed, the learned Government Advocate for Forest cases, Was repeatedly asked whether there are such statutory provisions or rules governing the forest produce and he frankly admitted that there are no provisions either in the Act or in the rules governing forest produce. It therefore follows that in the absence of any statutory provision or rules regarding forest produce the forest officials are not in order in intercepting the collection, movement And transport of wattle bark collected b) the lessees from the trees standing on the lands of the lessors pattadars.
6. Besides, it is seen from the communication Reference No. T3/7034081-3 dt. 14-2-1981 of the second respondent that wattle bark does not answer the description of timber and, therefore, it is not correct to book cases of transport of the wattle bark from the private lands under Timber Transit Rules. That communication also calls upon all lower subordinates and staff empowered to detect offences to stop the booking of erroneous offences. In the subsequent communication Ref. No. B/4/59327 81-2 dt. 28-5-1981 issued by the second respondent, the removal of wattle bark from the Government forest under the guise of removal from the patta lands has been referred to and it- is further stated that unauthorised felling of the trees, after the removal of the wattle bark and illicit removal of wattle bark from the Government forest, should be prevented by ensuring that necessary permission had been accorded. In Para 3 of that letter it has been stated that movement of bark maybe regulated by the issue of transport certificate by the Ranger after certify the origin of the bark and satisfactory compliance of the provisions of Tamil Nadu Hill Stations (Preservation of Trees) Act, 1955and the Tamil Nadu Preservation of Private Forest Act as bark does not fall under the purview of Timber Transit Rules. It is at once cleat that when the wattle bark is not timber even according to the second respondent and there are no statutory provisions or rules regulating the transport of forest produce like wattle bark, the second respondent was not in order in directing the regulation of the movement of wattle bark by the issue of certificates by the Ranger. It is true that every effort must be taken by the Government to see that the wattle bark from the trees standing in the forest belonging to the Government is not illicitly or illegally removed and transported; but at the same time, in the absence of conferment of powers either under the statutory provisions or the rules regulate the collection movement and transport of wattle bark collected by the essees from the tees standing in the private laids of the pattadars, the Forest authorities cannot arrogate to the4yselves the power to regulate the same
7. The reliance placed upon Ss. 41 and 56 of the Tamil Nadu Forest Act by the learned Government Advocate for Forest cases does not in any manner support the power to regulate. S. 41 enables a Forest Officer or a Police Officer to, seize timber or forest produce together with all tools, ropes, chains, boats, vehicles and cattle used in committing an offence when there is reason to believe that a forest offence has been committed in respect of the same. Forest offence 'has been defined as an offence punishable under did Act or any rule made there under. The peeling off wattle bark, as collection, its movement and transport by the lessees from the trees standing in the lands of the pattadars cannot be equated to commission of a forest offence. If under the guise of removing the wattle bark from the trees standing in the lands of the pattadars, the lessees peel off wattle bark from the trees standing in the forest belonging to the Government, then, that would be clearly a case of a commission of forest offence i.e. theft of forest- produce, in respect of which suitable action may be taken against the erring persons. But that cannot be pressed into service to claim that even when the trees are engaged in the lawful activities of collecting the peeled wattle bark and transporting them in the exercise of their rights as lessees, they are committing an offence, to prevent which the Forest Officials have the power under S. 41 of the Tamil Nadu Forest Act. 1882. Therefore the reliance placed on S. 41 is of no avail to the respondent. Similarly the presumption indicated in S. 56 which was also relied by the learned Government Advocate for Forest cases does not assist the respondents. If in the course of a proceeding taken under the Tamil Nadu Forest Act or in consequence of anything done under that Act, a question arises as to whether any forest produce is to be property of the Central or State Government such produce shall be presumed to be the property of the Central or State Government, until the contrary is proved. This presumption can apply only when proceedings are taken under the Act or the question arises in consequence of anything done under the Tamil Nadu Forest Act. It is the admitted case that no proceedings have been taken under the provisions of the Tamil Nadu Forest Act and that nothing has also been done by the respondents under the provisions of the Tamil Nadu Forest Act and therefore, no consequential question regarding the right of the Central or State Government to any forest produce, had arisen. Therefore, this section also, does not, in any manner, assist the respondents.
8. It is thus seen that the respondents have no power whatever either under the statutes or any rule there under to regulate the peeling off, collection and transport of wattle bark by the lessees from the trees standing in the lands of the pattadars from whom they have taken the lease and the respondents cannot, therefore, interfere with the right of the petitioners to peel off. Collect, move and transport the wattle bark either by insisting upon their obtaining a transport certificate or even otherwise. Under those circumstances the petitioners are entitled to the issue of a writ of mandamus as prayed for. Consequently, the rule nisi is made absolute and all the writ petitions will stand allowed and there will be a direction to the respondents and their officers and servants to forbear from interfering in any manner with the right of the lessees petitioners to peel off, store and transport the wattle bark to the market from the patta lands of the lessors. There will be no order as to costs.
9. Petitions allowed.