IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 09.11.2009 CORAM THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY W.P. NO. 36235 OF 2007 AND M.P. NOS. 1 & 2 OF 2007 The Tamilnadu Forest Staff Association, rep. by its General Secretary Mr.Nazir, 6 Shaj Liberty Garden, TVS Nagar, Edayar Palayam Post, Coimbatore 25. (Head Office under article 4 of the bye laws) .. Petitioner - Vs - 1. The State of Tamil Nadu, rep. by Secretary to Government Environment and Forest Department Fort St. George, Chennai 9. 2. The Principal Chief Conservator of Forest Panagal Maligai, Saidapet Chennai 600 015. .. Respondents Writ petition filed under Article 226 of the Constitution of India for the issue of writ of certiorarified mandamus to call for the records of the first respondent issued in G.O. Ms. No.239 Environment and Forest (FR-X) department dated 12.08.1998 and quash the same and to consequently direct the respondents to take all positive steps and emergent steps for proper implementation of the orders of apex Court in letter and spirit and the Acts and Rules in a proper perspective. For Petitioner : Ms.Selvi George For Respondents : Mr.S.N.Kirubanandam, Spl. G.P. (Forests) https://hcservices.ecourts.gov.in/hcservices/ ORDER (ORDER OF THE COURT WAS MADE BY S.J.MUKHOPADHAYA, J.) By amended rule in G.O. Ms. No.239 dated 12th Aug., 1998 issued from Environment and Forest Department of the State, following substitution has been made in sub clause (b) of sub-rule (3) of Rule 1 of the Tamil Nadu Timber Transit Rules, 1968 (hereinafter referred to as 'Transit Rules, 1968') :- (a) timber not grown in India; (b)timber cut up or fashioned otherwise than is usually done or permitted to be done before removal from the forest in which it has been felled. The aforesaid amended rule is under challenge on the ground that it will go against public interest. 2. The petitioner association, which claims to be working in the interest of environment and forest has challenged the amended rule on the following grounds:- i) There is absolutely no need to exempt any timber from the purview of Transit Rules, 1968; ii) Timber being protected forest wealth, impugned amendment will cause destruction of timber on the ground of exemption; and iii) The officers will have no supervisory control over the movement of timber at large. 3. Learned counsel for the petitioner submitted that Transit Rules, 1968 was framed in exercise of powers conferred u/s 35 and 36 of the Tamil Nadu Forest Act, 1882 (hereinafter referred to as the 'Act') with an intention to regulate the transit of timber in Tamil Nadu. The rule is not a prohibitory rule, but is regulatory in nature. Under Rule 2, no person shall move timber in or from or within the State by land, water or air, unless such timber is accompanied by a permit prescribed under Rule 4. Under Rule 3, in case of timber from Government land, a permit is required under Form- I and a fee calculated to be paid as fixed per lorry load. Similarly, in case of timber from private forest land, markets of depots in the District, a permit is to be taken in Form-II. If the amendment is allowed, then in the name of “timber not grown in India” and “all timber cut up or fashioned otherwise than is usually done”, unscrupulous elements will cut timber and transit the same as there will be no supervisory control of the officials of the forest department. 4. Aforesaid submission has been refuted by learned counsel for the State. It was submitted that number of timbers were not earlier https://hcservices.ecourts.gov.in/hcservices/ included within the meaning of timber under sub-rule (3) of Rule 1. For example, “silver oak” was not included as it was under exemption. Subsequently, the exemptions that were granted with regard to “silver oak” was withdrawn by amendment made vide G.O. Ms. No.45 dated 3rd March, 2003. Similarly, the timber not grown in India was earlier exempted from the purview of the rules, which was later on included and, now, stands excluded in view of the amended rule. Similarly 'all swan timber' where the smallest dimension is less than 5 cm in thickness and does not exceed 12 decimetres in length were exempted from the purview of the Transit Rules, 1968. Reliance was placed on paras-6 to 13 of the counter affidavit, wherein the following reasons have been shown for making amendment in sub-rule (3) of Rule 1:- “6. It is respectfully submitted that in the National Forest Policy and National Forest Commission Report, it is emphasized that the public should be encouraged for growing more number of trees, in their patta land by amending the relevant provisions of law. The Government of India have formulated suggestive guidelines for the simplification of felling and transit regulation of trees grown on non-forest private lands for achieving the object of additional tree planting in private lands. Government of India in their letter 8-14/2004-FP dated 15.12.2004 have requested the State Governments to consider the suggested guidelines to increase the pace of the tree plantation in private lands. The Government of India have suggested only three to five species, such as sandalwood, red sanders, rosewood, khair, sal and deodar in the category of highly restricted tree species. The Government of India also suggested that there would be no regulation in respect of other species to encourage the individual to adopt farm/agro/homestead forestry. In the State of Tamil Nadu, the species, such as sandalwood, teak, red sanders, black wood, rosewood are notified as scheduled timber and are well protected in the forest areas by enforcing the special provisions under the Tamil Nadu Forest Act, 1882 and the amendments thereon. 7. It is respectfully submitted that because of ban on felling of trees in Forest areas and lesser availability of herbs from private lands most of the timber requirements are met by timber imported into Tamilnadu. By virtue of species variation it can be easily identified, whether it is grown in the country or an imported one. 8. It is respectfully submitted that the forest areas are bifurcated into Beats, Sections, Ranges, Divisions and Circles. The Forest areas are protected with well- https://hcservices.ecourts.gov.in/hcservices/ knit protection system manned by trained forest officers such as Forest Guard and Forest Watchers, Forester, along with the Forest Rangers at field level and supervisory and administrative control by Assistant Conservator of Forests and District Forest Officer with the intrinsic supervision and guidance of Conservator of Forests and Chief Conservator of Forests at Circle and Regional level, respectively. The said officers are well experienced with the forest species. They are capable of identifying the wood either from the forest or from the private land at the first sight itself, by virtue of their knowledge and experience. Hence, a well-tested forest protection system exists in our State to protect the forest areas. 9. It is respectfully submitted that according to section 41 of the Tamil Nadu Forest Act, 1882, when there is reason to believe that a Forest offence has been committed in respect of any timber or Forest produce, such timber or produce, together with all tolls, ropes, chains, boats, vehicles and cattle used in committing any such offence, may be seized by a Forest Officer or Police Officer. According to section 53 of the said Act, every Forest Officer and Police Officer shall prevent and may interfere for the purpose of preventing the commission of any forest offence. In exercise of this provision, the Forest Officers may very well check any means of transport, when there is a reasonable doubt for commission of any offence. The impugned order will not take away the powers vested to the Forest officials to check the vehicles. 10. It is respectfully submitted that in addition to the regular forest officers, there are special squads such as Forest Protection Squad and Flying Squad, headed by Officers along with supporting staff. The said squads conduct frequent raids and perambulation of the forest areas. There are 110 check posts in the forest and in other areas to prevent/regulate movement of timber and other forest produce. In the case of necessity, special teams are also formed for conducting raids and perambulation for augmenting protection and management of forests. Cell phones, wireless equipments, motor vehicles, arms and ammunition are provided to the forest officers. Hence, the forest areas are protected in a systematic and scientific manner. 11. It is respectfully submitted that the Tamil Nadu Timber Transit Rules, 1968 is only a regulation for movement of timber. This rule will not regulate the https://hcservices.ecourts.gov.in/hcservices/ felling of trees in private lands. Hence, exemption under Tamil Nadu Timber Transit Rules, 1968, will not have any effect on felling of trees in private lands. The farmers and other forums very often represent that they are facing undue delay in getting Form II permit to transport their timber for their genuine domestic use. The exemption from the purview of Tamil Nadu Timber Transit Rules, 1968, will not take away the powers of the Forest Officers from booking offence for felling of trees in the Forest areas, even if the timber is found in sawn size. 12. It is respectfully submitted that the Tamil Nadu Forest Act, 1882, and Wild Life (Protection) Act, 1972 are well enforced by the Forest Officers for the protection and management of forests. Even trespass into the forest area is an offence under the provision of the said Acts. Felling of trees are punishable upto five years imprisonment and fine upto Rs.20,000/-. Hence, there are sufficient provisions of law to prevent felling of trees in forest areas. The impugned order will not in any way result in indiscriminate felling of trees in forest areas. 13. It is respectfully submitted that this writ petition has been filed by the Tamil Nadu Forest Staff Association under the guise of interest of protecting the Forest and Forest produces and environment. The Forest officers are appointed to protect and manage the forests. The primary duties and responsibilities of the Forest Officers lie within the Forest area. The Forest officers in this petition are justifying protecting the Forest by standing on the road side. The regulation outside the Forest area shall be minimal without harassment to the public. Regulations should not also act as a bane, i.e., discouraging the public from growing trees. Number of representations have been received from the public regarding the difficulties in getting transit permit from the Forest officials and it is considered as an hindrance to growing trees on private lands. The impugned order is one of the policy decisions taken by this welfare State to alleviate such difficulties and harassment to the public. By virtue of this petition, some of the Forest officials desire to perpetuate the licence for reasons other than protection of forests in its real sense.” 5. We have heard the learned counsel appearing on behalf of the parties and perused the records. It will be evident from the Transit Rules, 1968 that timber not grown in India was excluded while notification dated 23rd Feb., 1968 was published. Subsequently, it https://hcservices.ecourts.gov.in/hcservices/ was included and now again excluded. Similarly, many other timbers were excluded from the purview of the rule. 6. The Tamil Nadu Forest Act, 1882 has been enacted with the object to conserve the forests of the country and also to regulate the extraction of forest produce on scientific lines. U/s 35, the State Government has been empowered to make rules to regulate the transit of all timbers or certain class of timber within the local limits. The extraction of forest produce being regulated, while in some cases prohibition has been made. In case of some exempted timber there is no such prohibition for movement of timber from one place to another place. It is the State Government, which is empowered to decide which class of timber to be exempted from the Transit Rules, 1968 and it is not for the Court to decide the same. It is only if it is shown that public interest will suffer, the Court may interfere with the law. Further, if the rule is shown to be arbitrary, the Court can interfere with the rule, if violative of Article 14 of the Constitution of India. 7. So far as timbers not grown in India is concerned, as they are not grown in the country and the trees are not fell in the country, it is open to the State to exempt such timber, as was originally exempted under the rule when rule was framed in 1968. Similarly, if any timber is found to have been cut up for being fashioned otherwise than is usually done, the State is empowered to decide whether for such timber permit is required for transit or it can be exempted. 8. Learned counsel for the State submits that there will be supervision with regard to all the timbers. Merely on the ground that a timber is grown outside India, i.e., timber not grown in India, or timber cut up for being fashioned otherwise than is usually done or permitted to be done, no person can transit timber from one place to another place. It is always open to the officers of the forest department to ask to produce relevant document in support of such claim. In absence of such document it cannot be accepted that a particular timber was not grown in India, nor it can be presumed that such timber was cut up for being fashioned otherwise than is usually done. In case of any violation, no person can take advantage of the exemption clause and regulatory measures have to be taken under the Transit Rules, 1968. 9. In view of such specific stand taken on behalf of the State and as we find no infirmity in the impugned amendment made vide G.O. Ms. No.239 dated 12th Aug., 1998, no interference is called for with the said rule. However, the respondents are to ensure that no timber is transited in violation of the rules under the caption 'timber not https://hcservices.ecourts.gov.in/hcservices/ grown in India' or 'timber cut up for being fashioned otherwise than is usually done or permitted to be done before removal from the forest, in which it has been felled'. If necessary, proper guidelines may be issued and instructions be forwarded to the concerned officers of the State. The writ petition stands disposed of with the aforesaid observations. But there shall be no order as to costs. The Miscellaneous Petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar MF/GLN To 1. The Secretary to Government State of Tamil Nadu Environment and Forest Department Fort St. George, Chennai 9. 2. The Principal Chief Conservator of Forest Panagal Maligai, Saidapet Chennai 600 015. + 1 cc to the Spl. Govt., Pleader (Forests) SR 59779 W.P. NO. 36235 OF 2007 LA (CO) RH (9.12.09) https://hcservices.ecourts.gov.in/hcservices/