J. M. MAHAPATRA, J. ( 1 ) IN this writ application the petitioner calls in question the section of the State in granting long term lease of mango kernel along with other minor forest produce in favour of opposite party No. 4, a joint sector company under IPICOL with a prayer to quash the same on the ground that mango kernel is not a forest produce under the Forest law of the State and praying for a declaration that the petitioner has a right to collect mango kernel throughout the State without any let and hindrance and without payment of any royalty and for ancillary reliefs. ( 2 ) SHORN of unnecessary details and verbose reproduction, the facts of the case, and events leading to filing of the present writ petition, most of which are undisputed, may be stated thus : The petitioner, a private company with head office in Bombay, is engaged amongst other things in collection of mango kernels in Orissa as well as other States during last several years and in manufacturing solvent extract mostly for foreign export. The State Government on the recommendation of a High Court Level Committee decided on 11-4-1985 to grant lease of several items of minor forest produce including mango kernel to a joint venture company that would be floated by IPICOL, and pursuant to the aforesaid policy decision the State Government granted long term lease of 32 items of forest produce including mango kernel, 29 items to opposite party No. 4 and the rest of the items to the T. D. C. C. Orissa. With the change of Government, the lease was cancelled for a certain period from 2-5-1990, and again with the present Government, coming to power, the lease for a period of ten years in favour of opposite party No. 4 was restored/renewed sometime on 14-12-1990. The lease is still continuing, and opposite party No. 4 has been collecting 29 items of minor forest produce including mango kernel in the State of Orissa. The grievance of the petitioner in a nutshell is that mango kernel is not a forest produce in terms of the provisions of the Orissa Forest Act, 1972 (for short, 'the Act'), and as such it is not legally permissible to be leased out. The grievance of the petitioner in a nutshell is that mango kernel is not a forest produce in terms of the provisions of the Orissa Forest Act, 1972 (for short, 'the Act'), and as such it is not legally permissible to be leased out. It is also averred that for the aforesaid reason the State Government cannot have any control over this produce in the matter of collection. It cannot put any restriction on those engaged in collection, nor can it legally collect royalty for such collection. It is further averred that over a period of last 15 to 20 years, petitioner was collecting mango kernel throughout the State as also in several other States without any restriction, and the impugned act of the State Government in granting long term lease to opposite parry No. 4 has adversely affected the business of the petitioner, and besides such restriction on the part of the State Government is hit by Arts. 14 and 19 of the Constitution. On these averments the petitioner has sought for a declaration that mango kernal is not a forest produce, that the settlement on long term basis in favour of opposite party No. 4 by the State Government is illegal and without jurisdiction. It has also sought for a further declaration that the petitioner has a right to collect and transport from the entire State without any restriction and without any payment of royalty and without having any necessity for TT permit. ( 3 ) THE State opposite party No. 1 and its functionaries, opposite parties 2 and 3 have not filed any reply or counter to the writ petition. It is only opposite party No. 4 who has stoutly contested the claim of the petitioner and has filed the counter. The contention of opposite party No. 4 in substance is that pursuant to the policy decision of the State Government the joint venture Company with IPICOL was floated and incorporated under the Companies Act on 6-12-1989. The idea of giving long term lease of minor forest produce is to generate employment in the scheduled caste and scheduled tribe communities living in the interiors of the State and for promoting the economic upliftment of the State. The idea of giving long term lease of minor forest produce is to generate employment in the scheduled caste and scheduled tribe communities living in the interiors of the State and for promoting the economic upliftment of the State. It is averred by opposite party No. 4 that pursuant to the decision of the State Government the IPICOL invited partners for forest products joint venture Project, and 18 entrepreneurs applied for the same and opposite party No. 4 was eventually selected to form the joint venture undertaking with the IPICOL. It has not disputed that initially the lease was granted pursuant to the decision of the High Court level committee on 6-9-1989, and that for a short spell of time the lease was cancelled, and that again with the change of Government the lease has been renewed and resusticated to life. It is further asserted by opposite party No. 4 that mango kernel being a part of produce of the trees of the forest are forest produce so long as they are found in or brought from the forest. It is contended that the interest of petitioner is not prejudicially affected by grant of long term lease for collection of mango kernel by opposite party No. 4, inasmuch as the petitioner is at liberty to collect mango kernels from such of the areas which are not covered by forest, and the petitioner may also procure mango kernel from opposite party No. 4 and from other agencies who collect mango kernel. ( 4 ) THE petitioner has filed rejoinder to the counter-affidavit of opposite party No. 4, wherein it has reiterated its stand by elaboration and elucidation of certain facts more lucidly. No new fact as such has been stated therein. ( 5 ) HAVING regard to the rival contentions of the parties and in the light of the reliefs claimed by the petitioner in this writ petition, the core point for decision is whether the mango kernel is a forest produce in terms of the forest law prevalent in the State. Both parties rely on the definition of "forest produce" contained in S. 2 (g) of the Act. Both parties rely on the definition of "forest produce" contained in S. 2 (g) of the Act. For proper appreciation of the rival contentions, it would be profitable to excerpt the aforesaid provision hereunder :-"2 (g) "forest produce" includes - (I) the following whether found in, or brought from a forest or not, that is to say - (a) timber, charcoal, caoutchoue, catechu, wood-oil, resin, natural varnish, bark, Tussar Cocoon, las, gums, roots of Patal Garuda, Mahua flowers, mohua seeds, myrabolans, tendu leaves, sandalwood; tamarind, hillbroom, siali leaves, siali fibres, sal seeds; (b) wild animals and wild birds, skins, tusks, horns, bones and all other parts or produce of wild life; and (c) such other produce as may be notified by the State Government; and (II) the following when found in or brought from a forest, that is to say - (a) trees and leaves, flowers and fruits and all other parts or produce of trees not hereinbefore mentioned; (b) plants not being trees (including grass, creepers reeds and moss) and all parts or produce of such plants; (c) honey, wax and arrowroot; (d) peat, surface soil, rock, sand minerals (including limestone, laterite mineral oils and all products of mines or quarries);" ( 6 ) THE first part of the definition contained in Cl. (i) categorically enumerates the different items of forest produce. Mango Kernel is admittedly not including therein. On behalf of the contesting opposite party as well as for the State contention is raised that mango kernel would come within the Cl. (ii) of the definition when it is found in or brought from a forest. This second part of the definition leaves us with the question whether the mango kernel can be said to be a fruit even when found in or brought from a forest. There may not be any controversy that mango as such is a fruit, and therefore, when mango trees are grown inside the forest the mango fruit found in or brought from inside a forest would be called a forest produce within the ambit of the definition in the second part of Cl. (g ). Adopting this definition, it is manifest that the mango fruits plucked from trees grown outside a forest would not be forest produce, as in such a case mango cannot be said to be found in or brought from a forest. (g ). Adopting this definition, it is manifest that the mango fruits plucked from trees grown outside a forest would not be forest produce, as in such a case mango cannot be said to be found in or brought from a forest. On the basis of the situation of mango trees, whether inside or outside a forest, mango fruits can, therefore, be said to fall into two categories according to the definition referred to above. But the question that still remains to be considered is whether when mango trees which are largely and extensively grown all throughout the State in mango topes, groves and orchards which would far outnumber the mango trees found inside forests, the mango fruit in the circumstance can still be said to be a forest produce in the strict sense of the term. No doubt, in Cl. (ii) (a) "flowers and fruits" have been included to connote any flower and any fruit found in a forest. But considering the use / consumption of a particular item, the flower or fruit, in our considered opinion would partake of the character whether it is a forest produce or a produce other than a forest produce. Several other fruits like mango which are commonly consumed by human beings as also livestock are jack fruit, guava, lichu, banana, sepeta and the like. Adopting the definition indicated above, can it be said that all the above named fruits can be designated as forest produce? In this view of the matter we are inclined to hold that the term and expression "flower and fruits" used in Cl. (ii) (a) of the definition would refer to the wild flowers and wild fruits which normally grow inside the forest and which do not require any care, protection or nurturing. No doubt one often comes across mango trees inside vast stretches of forest in our State particularly in the ex-State areas and in the districts of Koraput and Phuibani and Ganjam. But it is common knowledge that most of the mango trees of good variety were all planted several years ego, and as such those mango trees cannot be said to have wild growth. But it is common knowledge that most of the mango trees of good variety were all planted several years ego, and as such those mango trees cannot be said to have wild growth. It is also common knowledge that during last several decades mango topes and groves have been set up by private farms and individuals, and existence of such topes and groves are commonly available, and these are common sight almost in every village inhabited by human being. On the aforesaid analysis can it be said that mango fruits which are commonly used fruits of human consumption can come within the category of forest produce. We are of the view that considering the position about the growth, situation and plantation of mango trees and general availability of mango fruits in the State, mango fruits cannot be said to be strictly a forest produce. Even if, strictly construed, mango fruits which are found in or brought from a forest is taken as a forest produce, the number of such trees and fruits would be very insignificant when compared with mango trees and fruits grown outside the forest areas. ( 7 ) THE question which is still more important is whether the mango kernel which though forms part of and drawn from a mango fruit, can it be said to have a separate entity. It is common knowledge that after consuming the mango fruit the stone of the mango fruit is thrown away, and mango kernel is brought out by tearing or breaking open the mango stone. The kernel is the soft substance found inside the mango stone which is a hard shell. It is only after processing the mango stone that mango kernel is brought out, and it is only after the kernel is dried up when it is fit for marketing. It is common ground that only such dry mango kernels are meant for collection and sale when these are utilised by business community and industrial entrepreneurs for utilisation in solvent extract plants. In such view of the matter, mango kernel though contained inside mango fruit can be said to have a separate entity. It is common that mango fruits offered for sale in the market after consumption are thrown away and the stones are collected and the kernels are brought out by the unemployed and poor working class to earn their livelihood. In such view of the matter, mango kernel though contained inside mango fruit can be said to have a separate entity. It is common that mango fruits offered for sale in the market after consumption are thrown away and the stones are collected and the kernels are brought out by the unemployed and poor working class to earn their livelihood. The mango fruits whether grown outside the forest or inside the forest or brought from outside the State when consumed and stones thrown away the kernels are all mixed up and it is not possible to say whether a particular kernel is from a mango collected from inside a forest or otherwise. Although timber is a forest produce, yet furnitures and other finished products prepared from the timber cannot be said to be forest produce within the definition of forest law. This is an example which may compare well with a kernel in the sense that even if mango fruit is grown inside a forest, after consumption of the fruit and the extraction of the kernel from inside the fruit, the kernel does not possess the characteristic of the mango fruit in the original form. ( 8 ) APART from what is discussed in the preceding paragraphs, it would be worthy to note that at some stage in the decision making process, prior to grant of long term lease, it was decided that mango kernel should not be included as forest produce. Top ranking forest officers like the Principal, CCF, Orissa had subscribed to the view that mango kernel is not a forest produce. Annexures 11 and 13 dated 12-7-90 and 31-9-90 respectively from the Principal, C. C. F. to the Secretary of the state Government in the Forest Department bear testimony to such views. There is yet another fact which would support the proposition that mango kernel is not a forest produce. The materials on record would go to indicate that for past several decades no restriction had been imposed by the State Government through its Forest Department for collection of mango kernels or stones. This would obviously mean that mango kernel was never treated as a forest produce in the past. No doubt some of the agencies like T. D. C. C. and S. F. D. C. used to be given lease for collection of such items over small areas and for short period. This would obviously mean that mango kernel was never treated as a forest produce in the past. No doubt some of the agencies like T. D. C. C. and S. F. D. C. used to be given lease for collection of such items over small areas and for short period. But never in the past the entire State was taken as the unit for grant of lease in respect of mango kernels. ( 9 ) LEARNED counsel for opposite party No. 4 relying on a Bench decision of this Court in the case of Gangadhar Sahu v. State, O. J. C. Nos. 1162 and 1228 of 1990 relating to the case of siali leaves has contended that by parity of reasoning the aforesaid decision could be pressed into service by the opposite party. In the aforesaid case the question for decision was whether the siali leaf plates prepared out of siali leaves could be said to be forest produce within the meaning of Forest Act as defined under S. 2 (g) of the Act. It was held that as siali leaves are included in the definition "forest produce" and as the siali leaves do not cease to be siali leaves when they are stitched together to make a plate, no process of manufacture being involved and the intrinsic quality of the article remaining unchanged the siali leaves would be called forest produce and would come within the definition of forest produce. The aforesaid case is clearly distinguishable on facts from the present one. Siali plates stitched from siali leaves do not lose the character of siali leaves, but mango kernel is not the same as mango fruit which is consumed by human beings and by others; the mango kernel in a sense is rather waste product of mango fruit. The kernel is prepared by undergoing certain process (sic) or trearing out the mango stone. We are therefore of the view that the aforesaid decision (supra) would be of no avail for the present case. ( 10 ) IN the light of our foregoing discussions in the preceding paragraphs, we are inclined to hold that mango kernel is not a forest produce as defined in the Forest Act. It would therefore follow that the petitioner would have no restriction in his right to collect and transport mango kernel throughout the State. ( 10 ) IN the light of our foregoing discussions in the preceding paragraphs, we are inclined to hold that mango kernel is not a forest produce as defined in the Forest Act. It would therefore follow that the petitioner would have no restriction in his right to collect and transport mango kernel throughout the State. He would have also the right to trade in mango kernel. We would further hold that in view of our decision, the grant of lease by the State Government in favour of opposite party No. 4 in respect of if mango kernel cannot be said to be valid, and as such it is quashed. ( 11 ) IN the result, the writ petition is allowed leaving the parties to bear their own costs. ( 12 ) D. P. MOHAPATRA, J. :- I agree. Petition allowed.