WP(C) 3180/2008 BEFORE THE HON’BLE MR JUSTICE P.K. MUSAHARY . Heard Mr. G.N. Sahewalla, learned Sr. Counsel assisted by Ms. M. Jain, learned counsel for the petitioner, Mrs. V.L. Singh, learned Govt. Advocate A ssam appearing for the State respondents and Mr. A.K. Sarkar, learned Counsel ap pearing for respondent Nos. 9 to 14. 2. The petitioner firm claims that it is engaged in business of su pply of home grown bamboos out side the State of Assam. The petitioner is supply ing the home grown bamboos collected from bamboo cultivators who are growing the bamboos in their private patta land. There was no objection from the Forest Dep artment to collection and transportation of home grown bamboos. A clarification was issued by the Chief Conservator of Forest (Territorial) Assam, Guwahati in his letter No. FS.04/7/Pt.-II dated 19.7.1995 to the effect that no T.P. is requ ired for home grown bamboos and accordingly the officer concerned in the field w ere directed not to insist on T.P. for home grown bamboos. Another letter was issued by the Chief Conservator of Forests, Assam, Rehabari, Guwahati in this regard vide communication No. P. 50/TP/Genl. Dated 4.8.1997. Subsequently the DF O, Aie Valley Division, Bongaigaon issued the impugned order dated 24.08.2006 a ddressed to the Area Manager, N.F. Railway, New Bongaigaon to stop despatch from Chaprakata and Basugaon stations out side the State of Assam without transit pass. In the aforesaid letter it is stated that home grown bamboos when consume d at the place of origin requires no felling permission and T.P. but when the s ame home grown bamboos are intended to be transported out side the place of ori gin, felling permission and certificate of origin and T.P. are required. The pre sent petitioner is aggrieved by the aforesaid communication dated 24.08.2006 and the same is under challenge in this writ proceeding. 3. Mr. Sahewalla, learned Senior Counsel submits that there is no r ule as such framed by the government requiring felling permission and T.P. for t ransporting the home grown bamboos out side the State of Assam and even if ther e is one, it would according to him, is illegal and unauthorised. He has refer red to Assam Control of Felling and Removal of Trees from Non-Forest Land Rules, 2002 (hereinafter referred to as Control Rules in short) . Under Rule 4.1 there is no provision for issuing felling permission and T.P. f rom the Forest Department in respect of all species of home grown bamboos. The i mpugned communication dated 24.08.2006 is in contravention of the provisions of the aforesaid Control Rules and as such according to him the same is liable to b e quashed and set aside. 4. An affidavit-in-opposition has been filed on behalf of the respo ndent No. 3 and 5. The main contention of the respondent authorities is that the felling and transportation of home grown bamboo in Assam is regulated under pro vision of Assam Forest Regulation, 1891 (hereinafter referred to as Forest Regul ation in short) and its subsequent amendments. The further contention of the res pondent is that the Deputy Secretary to the Govt. of Assam, Environment and Fore sts Department vide communication No. FRM.88/2001/103 dated 23.05.03 clarified that in case the owner of these exempted tree species requires to transport t he timber outside the place of origin, the owner of such trees shall have to fol low the provisions of the Rules applicable for non-exempted tree species for obt aining the required certificate of origin. 5. I have gone through the relevant provisions of the Forest Regul ation, particularly definition of ’Tree’ under section 3(2) and ’forest produce under section 3(4). The definition of tree includes palms, bamboos, stumps , brushwood and canes. As per the definition ’forest produce’ u/s. 3(4), it incl udes the produce which are found in or brought from a forest or not that is to say, - timber, charcoal, caoutchoue, catechu, wood-oil, resin, natural varnish, bark, lac, myrabolams etc. to the trees and leaves; and fruits and all other pa rts or produce not hereinbefore mentioned as trees. U/s. 3(4)(a), the bamboos w hich are grown in the places out side the reserve forest would not be recorded a s forest produce. That position has further been clarified in the Control Rul es wherein the non forest land for the purpose of the said rules has been defin ed. ’Non forest land’ as defined under Rule 2(c), means area which is not forest . ’Forest’ has been defined under Rules 2(b) of the Control Rules. To get the c lear meaning of ’non forest land’ it is necessary to reproduce Rule 2(b) hereund er:- 2.In these rules, unless there is anything repugnant in the subject or context . (a) *** *** *** (b) Forest means (i) Reserved forest or Protected Forest or any other areas legally constituted as forest; (ii)Any area recorded as Forests in Government records maintained by the Forest Department or any other Government departments; and (iii)Land to be treated as deemed forest as per Supreme Court Orders dated 12.12.96. A continuous patch of 10 ha. Or more having not less than 200 naturally grown trees per ha.on an average. (c), (d), (e), & ’f’ *** *** *** 6. Having read the parent provisions under the Assam Forest Regulat ion, 1891 with the Control Rules one can clearly understand that in case of tran sportation of home grown bamboos no permission is required to be obtained from the government. The impugned communication dated 24.08.2006 is nothing but an official letter and it cannot be treated as an administrative circular. It is an official letter by a field officer in contravention of the aforesaid Regulatio n and Rules. If such official letter, even an administrative circular is in vi olation of the statutory rules and regulation, the same can be ignored and decla red as illegal and on that score only such administrative instruction/ circular can be set aside and quashed. 7. At the time of hearing, Mrs. V.L.Singh, learned Government Advoc ate, Assam placed some written instructions communicated to the Senior Governme nt Advocate, Gauhati High Court received from the Deputy Conservator of Fores ts, attached to the Principal Chief Conservator of Forests and Head of of Fores t Force, Assam vide No.FG.58/WP(C) No.3180/2008 dated 20.7.2011. The relevant portion of the said instructions are quoted below: \1. Govt. of Assam vide Notification No.FRM.88/2001/77, in compliance with the directions of the Hon’ble Supreme Court of india in its order dated 12.05.20 01 in WP(C)No.202 of 1995 and in exercise of powers conferred under sections 40 and 72(C) of the Assam Forest Regulation, 1891(Regulation VII of 1891), the Gove rnor of Assam is pleased to make the following Rules for controlling the felling and removal of trees from non-forest lands in the manner hereinafter appearing. (a) These rules may be called \Assam (Control of Felling and removal of trees from non-forest lands) Rules, 2002\: (b) These rules shall be applicable to the whole of Assam in respect of non forest land as defined in 2(c)below. (c) These rules shall come into force with effect from the date of publication in the official gazette. 2. As per provision of the Section-4 of the \Assam (Control of felling and removal of trees from non-forest lands) Rules, 2002\(copy enclosed) for felling and conversion of trees of the following specie s from non forest areas, no felling permission from the Forest Department under these rules is needed: Aam (Mangifer indica), Jamun (Syzygium cumim), Kathal (Artocar pus integrifolia), Eucalyptus, Poplar all specias, home grown bamboo, Leteku, Paniol and Madhuriam (Psidium guajava). 3. As per Govt.of Assam, Environment & Forest Department’s U/O No. FR M.88/2001/ 103, dated 23rd May,2003 (copy enclosed). Under the provision of Rule 4.1 of the \Assam (Control of Felling and removal of trees from non-forest lands) Rules, 2002\ , the tree species not requiring felling permission have no provision for their transportation from the place of origin. It is, therefore, clarified that in case the owner of these exempted tree species requires to transport the timbe r outside the place of origin, the owner of such trees shall have to follow the provisions of the Ruels applicable to non-exempted tree species for obtaining t he required Certificate of Origin. 4. The provisions of Section 3(2) & 3(3) of Assam Forest Regulation,1891, defin e bamboo as \Tree & Timber\ respectively. Though home grown bamboos are not foun d and brought from forest as per the definition of \Forest Produce\ in section 3 (4) of Assam Forest Regulation, 1891, it is a forest produce. 5.Tree and timber as defined under section 3(2), 3(3) and for regulation of tree s growing in non-forest land, the \Assam (Control of Felling and removal of tre es from non-forest lands) Rules, 2002\ has been framed and are in force since th en. For movement of forest produce from the place of origin requires Transit pas s under the section 40 of Assam Forest Regulation,1891 and Rule 6 of the non-For est land Rules,2002 and to issue transit pass the owner of the trees as timber h as first to obtain C.O(Certificate of origin). 6. In partial modification of the above provision, the Govt. has issued notifica tion No.FRM.88/2001/02/9, dated 27.09.2006 saying that \there would be no restri ction on felling and transportation of home grown bamboo to Hindustan Paper Corp oration Ltd. Jagiroad\. The restriction on felling and transportation of home gr own bamboo has been relaxed in case of supply of raw material to HPC Ltd. Jagiro ad only and is not applicable on felling and transportation of home grown bamboo s for any other purpose. 7.As per transit rule No.15 framed under section 40,41: The booking or moving of timber in logs or rough hewn, sawn timber (except tea shooks).bamboos exceeding 100 in number, canes exceeding 100 kaps, charcoal, exceeding 5 maunds, lac, aga r, elephants, elephant tusks, and any other forest produce by rail, aeroplane, s teamer or boat is prohibited unless such forest produce is accompanied by a tran sit pass under transit rules.\ 8. The aforesaid instructions have not been brought on record by way of f iling an affidavit. However, for the purpose of disposal of this case, it has be en referred to and kept on record, marked ’X’. The sole question involved in th is case is whether transit pass is necessary for transporting the home grown bam boos from the place of origin to destination outside the State. Under Rule 4.1 o f the aforesaid Control Rules, 2002 it is clearly stated that no felling permiss ion from the Forest Department is needed for felling and conversion of trees fro m non-forest areas. The species mentioned therein are Aam (Mangifer indica), Jam un (Syzygium cumim), Kathal(Artocarpus integrifolia), Eucalyptus, Poplar all spe cias, home grown bamboo, Leteku, Paniol and Madhuriam (Psidium guajava).All spec ies of home grown bamboo, as per this Rule are exempted from taking felling perm ission from the Forest Department. The Rule is silent about the requirement of p ermission from the Forest Department if the home grown bamboos are collected fro m non forest areas and transported outside the State. The Forest Department has taken note of this lacuna in the Co ntrol Rules and issued clarification vide U/O dated 23.5.2003 saying that in cas e the owner of those exempted tree species require to transport the timber which includes bamboos, outside the place of origin, the owner of such trees shall ha ve to follow the provisions of the Rules applicable to non exempted tree species for obtaining the required certificate of origin. The aforesaid U/O dated 23.5. 2003 speaks about the certificate of origin only without any mention about the t ransit pass. No clarification has been made as to whether a holder of certificat e of origin of timber including home grown bamboo in the non forest land, would be required to obtain transit pass for transporting them outside the State. 9. The State Government under Section 40 of the Forest Regulation is vested with power to make Rules to regulate transit of forest produce. Being vested with such power, the State Govt. has framed the transit Rules to regula te the transport of forest produce by land and water. In the said Rules, under R ule -2 (a)(iii)it has been clearly provided that no certificate of origin or oth er pass shall be required for the transport of home grown Fatti, Baruah Bakal a nd Bethua Bamboo and no royalty will be realised on bamboos of these kinds unles s they are known to have come from the Govt. forest. This provision is meant for home grown bamboos. Under the transit rules there is no provision for requirem ent of transit pass. It may be noted that after issuance of the impugned communi cation by the DFO of Aie Valley Division, Bongaigaon on 24.8.2006, the Commissi oner and Secretary to the Govt.of Assam Environment and Forest Department issued Notification No.FRM/88/2001/Pt/9 dated 27.9.2006 (Annexure-VII to the writ peti tion) to the effect that there would be no restriction of felling and transport ing of home grown bamboo to Hindustan Paper Corporation Ltd., Jagiroad. The Stat e Government has not clarified the issue raised by the said DFO regarding TP in respect of home grown bamboo when such bamboos are intended to be transported ou tside the State. The exemption granted under the State Government Notification d ated 27.9.06 is in respect of supply of home grown bamboos to Hindustan Paper Co rporation Ltd. only but it has not answered the question raised or the action in tended to be taken by the DFO concerned, which has far reaching consequence on t he collection of revenue by the State. It is not understood why the State Govern ment has not taken the said question seriously and left it still undecided. The Court is authorised to see and interpret the provision under the Act and Rules and while doing so it cannot travel beyond provision of the statute. What is fo und in Control Rules as well as Transit Rules, is that no provision has been mad e for obtaining transit pass in respect of the home grown bamboos. In absence o f such provision this court is not authorised to interpret the law/rules afore mentioned to decide as to whether the party concerned who wants to transport th e home grown bamboos outside the State should be required to obtain TP. It is th e wisdom of the legislature to make or not to make any provision regarding TP on home grown bamboos and when the legislature has decided not to make provision for TP, the judiciary has no authority to interpret in either way. If, under t he existing situation any change is required, the Govt. should take necessary st eps to amend the law/Rules to serve the present demand for TP in respect of home grown bamboos or other forest produce for the economic interest of the State. U nless such change in law/rules is brought into effect, the intended action of the executive to introduce system of issuance of TP on transportation of home grown bamboo can be regarded as illegal and unauthorised. 10. The lacuna in the Control Rules and the Transit Pass Rules is ap parent so far as it relates to requirement of issuing TP on home grown bamboos and unless such lacuna is removed by way of amending the rules, this court in ex ercise of power under Article 226 of the Constitution of India, in judicial re view, cannot permit the respondent-authorities to act what is not permitted unde r the existing Rules. In my considered view the respondent-authorities cannot a lso be allowed to insist on transit pass on transportation of home grown bamboos by way of issuing executive instructions or administrative circular without am ending the existing Rules. The Apex Court in Suresh Lohiya -Vs- State of Maharas htra and another, reported in (1996) 10 SCC 397 had an occasion to decide a que stion whether forest produce includes bamboo mat and in answering the said que stion in paragraph 7 it has been held as under: 7. The legislature having defined forest produce , it is not permissible to us to read in the definition something which is not there. We are conscious of the fact that forest wealth is required to be preserved; but , it is not open to us to legislate, as what a court can do in a matter like at hand is to iron out cr eases; it cannot weave a new texture. If there be any lacuna in the definition i t is really for the legislature to take care of the same. 11. The issue in question in the present case may be different from the ones raised in the above cited case but I am of the considered view that t he same principle can be applied to the present case also. If a Government is re ally interested to do something positive for the revenue and economic interest o f the State it may take necessary steps to get the existing Rules amended by in troducing and enacting appropriate legislation. The intended action of the resp ondent-authorities to introduce TP on transportation of home grown bamboo can no t be allowed before any appropriate amendment is brought into force to the relevant rules. Under such c ircumstances, the impugned communication dated 24.8.2006 is declared unauthorise d and illegal and accordingly the same is set aside and quashed. The petition st ands allowed. No order as to costs.