DUTTA, C. J.: This is a writ petition. The petitioner's case is that the Divi­sional Forest Officer, Nowgong by a noti­fication dated 20-2-68 called for sealed tenders for working the Lumding Sand Mahal No. 1 on royalty cum monopoly basis. The petitioner and five others in­cluding opposite party No. 5 Shri Upendra Nath Khamphri submitted tenders and the petitioner offered the highest bid. Opposite party No. 5 was offered to ac­cept the settlement at the highest bid but he did not accept the offer. Then the settlement was made with the petitioner by the Conservator of Forests. Three ap­peals were filed before the Government against the settlement and the Govern­ment set aside the settlement made by the Conservator of Forests and settled the Mahal with the opposite party No. 5. This petition has been filed against the settlement made by the Government. 2. In the Assam Forest Regulation there are provisions for constitution of Reserved forests and Village forests. Land at the disposal of the Government which is neither a Reserved forest nor a Village forest is "Unclassed State forest". The Government has framed Rules regard­ing such forests and in it provision has been made for collection of sand there­from, vide Assam Forest Manual Vol. I 1947 Edn. page 39. The Government has also made "the Assam Settlement of Forest coupes and Mahals by Tender Sys­tem Rules 1967" (hereinafter called the Rules) for the settlement of Mahals of forest produce. Therefore the first ques­tion that arises is whether sand is "forest produce". I 1947 Edn. page 39. The Government has also made "the Assam Settlement of Forest coupes and Mahals by Tender Sys­tem Rules 1967" (hereinafter called the Rules) for the settlement of Mahals of forest produce. Therefore the first ques­tion that arises is whether sand is "forest produce". The term "forest produce" has been defined in Section 3 (4) of the Regulation as follows: "(4) "forest produce" includes - (a) the following, whether found m, or brought from, a forest or not, that is to say,- timber, charcoal, caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, myrabolams, 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 or produce of such plants, (iii) wild animals and skins, tusks and horns, bones other than rhinoceros horns, silk, cocoons, honey and wax, and all 'other parts or produce of animals, and (iv) peat, surface soil, rock and mine­rals (including limestone, laterite, mine­ral oils and all products of mines or quarries)." 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. 4. Mr. Chaudhury argues that the term "Mahal" as defined in the Rules is vague. I see no vagueness in it. A "Mahal" will mean a defined area where-from a certain type of forest produce is sold. A certain type of forest produce means any particular type of forest pro­duce. As I have said above, sand in land at the disposal of the Government is a forest produce and as such the Rules will apply when a Sand mahal is settled. 5. It Is argued by Dr. Medhi that In the settlement of the mahal with oppo­site party No. 5, statutory rules were violated. I quote below the relevant provisions of the Rules. "6 (4). The tender shall be accompani­ed with the following documents, name­ly- (i)..... (ii) An up-to-date income tax clearance certificate. 5. It Is argued by Dr. Medhi that In the settlement of the mahal with oppo­site party No. 5, statutory rules were violated. I quote below the relevant provisions of the Rules. "6 (4). The tender shall be accompani­ed with the following documents, name­ly- (i)..... (ii) An up-to-date income tax clearance certificate. (iii) * * * * * (iv) If the tender is submitted by a per­son belonging to any of the Scheduled Castes, Scheduled Tribes or other Back­ward Classes, then in addition to the requirements of (i) to (iii) above, the ori­ginal or certified copy of the certificate in support of his claim to belong to such community from the Deputy Commis­sioner of the District or the Subdivisional Officer of the Subdivision within whose territorial jurisdiction the tenderer permanently resides. (v) * * * * " 6. It is argued by Dr. Medhi that the above Rules are mandatory and as op­posite party No. 5 neither submitted any income tax certificate, nor the requisite certificate to support his claim that he belonged to a Scheduled tribe, his tender should have been at once rejected. 7. It may be noted that the Mahal was settled with the petitioner by the Conservator of Forests. The settlement was set aside by the Government which gave the following grounds: "The second appellant, Shri Upendra Nath Khempri is the third highest ten­derer and is a tribal candidate. But his case has not been found favour on the ground that he has an arrear to the tune of Rs. 2,500.00 P. (Rupees two thousand five hundred) as Sales Tax in the Sales Tax Department, Nowgong. Ordinarily, a defaulter of this description should not get consideration. But in this case he (Shri Upendra Nath Khempri) being a tribal is entitled to some concession. His appeal petition is therefore, allowed. The Mahal should be settled with him at the highest bid provided he clears up his Sales Tax arrear within 30th October, 1968. The order will be absolute only when the Sales Tax arrear is completely cleared up by 30th October 1968. Other­wise the settlement order passed by the Conservator of Forests, Upper Assam Circle will prevail." 8. It will be seen from the above, that the only ground on which the petitioner was deprived of the Mahal was the fact that opposite party No. 5 belonged to a Scheduled tribe. Other­wise the settlement order passed by the Conservator of Forests, Upper Assam Circle will prevail." 8. It will be seen from the above, that the only ground on which the petitioner was deprived of the Mahal was the fact that opposite party No. 5 belonged to a Scheduled tribe. I may quote below the relevant portion of Article 15 of the Constitution of India which reads as follows: "15. (1) The State shall not discrimi­nate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) * * * * * (3) * * * * * (4) Nothing in this article or in cl. (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educa­tionally backward classes of citizens or for the Scheduled Castes and the Sche­duled Tribes." 9. There is no doubt that there has been discrimination against the petitioner and in favour of opposite party No. 5 on racial ground. But this is permissible in case the discrimination is in favour of a member of the Scheduled tribe. So, it is vitally important to find out whe­ther a person in whose favour a discrimination is made actually belongs to a Scheduled caste or Scheduled tribe or a backward class. That is why Rule 6 (4) (iv) has been made providing for the certificate to be produced to establish a claim by any person to have belonged to a Scheduled caste or Scheduled tribe or Backward class. I think that if such a certificate is not produced, but there are materials enough to show that the person belongs to a Scheduled caste, Scheduled tribe or Backward class, non-submission of a certificate will not vitiate a settle­ment. But if a person is regarded as belonging to a Scheduled caste. Scheduled tribe or Backward class without any material whatsoever, such an action will be arbitrary and capricious and must be struck down. 10. Under Article 342 of the Consti­tution, the President, after consultation with the Governor, may specify the tri­bes or tribal communities or parts of or groups within tribes or tribal communi­ties which shall, for the purpose of the Constitution, be deemed to be Scheduled tribe. Under this Article the President has made the Constitution of the Sche­duled Tribes Order 1950. 10. Under Article 342 of the Consti­tution, the President, after consultation with the Governor, may specify the tri­bes or tribal communities or parts of or groups within tribes or tribal communi­ties which shall, for the purpose of the Constitution, be deemed to be Scheduled tribe. Under this Article the President has made the Constitution of the Sche­duled Tribes Order 1950. It appears from Part II of the Schedule of the said Order that Dimasa (Kachari) is a Scheduled tribe so far as regards members thereof are resi­dents in an autonomous district. Kachari including Sonowals is a Scheduled tribe so far as regards the members thereof are residents in the State of Assam exclud­ing the tribal areas. It appears from the affidavit filed by opposite party No. 5 himself that he is a resident in the dis­trict of Nowgong which is not a Tribal area. Therefore, he can claim to have belonged to a Scheduled tribe only if he is a Kachari or Sonowal. Nowhere op­posite party No. 5 discloses to what type of tribal community he belongs. In his tender he simply said "I am belonging to the Scheduled tribe community. The cer­tificate will be submitted later on." This certificate was never submitted. In his affidavit he says that he is a "Kachari Bandu". On the other hand, his conten­tion is that he is not to submit an income-tax clearance certificate as the tribals do not pay any income-tax. But S. 10 (26) of the Indian Income Tax Act 1961 exempts a Tribal from income-tax pro­vided he is a resident of a Tribal area. But if opposite party No. 5 is a resident of a Tribal area, he can claim to have belonged to a Scheduled tribe only if he is a Dimasa Kachari and not a mere Kachari or Sonowal. Thus from the con­tentions of the opposite party No. 5, it cannot be ascertained to what tribal com­munity he claims to have belonged. The appellate authority had no material what­soever to hold that he belonged to a Scheduled tribe. When the petitioner has been discriminated against, his fun­damental right has been involved and in such a case scrupulous care should be taken to find out whether such discrimi­nation can be sustained under the law. Any arbitrary discrimination must be struck down. Here discrimination against the petitioner and in favour of opposite party No. 5 has been arbitrary and capri­cious. When the petitioner has been discriminated against, his fun­damental right has been involved and in such a case scrupulous care should be taken to find out whether such discrimi­nation can be sustained under the law. Any arbitrary discrimination must be struck down. Here discrimination against the petitioner and in favour of opposite party No. 5 has been arbitrary and capri­cious. In this view of the matter, the order of the appellate authority disturb­ing the settlement cannot be sustained and it is set aside. The settlement made by the Conservator of Forests with the petitioner will stand. The petition is allowed and the rule is made absolute. We make no order as to costs. 11. K. C. SEN, J.: I agree. Petition allowed.