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Gujarat High Court · body

2008 DIGILAW 323 (GUJ)

Farsubhai Muljibhai Goklani v. State of Gujarat

2008-07-30

JAYANT PATEL

body2008
Judgment Jayant Patel, J.—Rule. Mr. Pujari, learned AGP waives service of notice of Rule for the respondents. With the consent of the learned Counsel appearing for both the sides, the matter is finally heard today. 2. The short facts of the case appear to be that the State Government vide Resolution dated 13.12.2004 in purported exercise of the powers under Indian Forest Act (hereinafter referred to as the ‘Act’) read with the Bombay Forest Rules, 1942 (hereinafter referred to as the ‘Rules’) had resolved that the permission for cutting Gandabaval (hereinafter referred to as ‘Babul Trees’ for the sake of convenience) shall not be required for manufacturing of the product charcoal if the trees are grow over the land other than protected or reserved forest. In the said Resolution, it was expressly provided in Para 4 that if the land is belonging to Government Forest land or private land or Panchayat land since the same is not touching the forest land, the Forest Department had not to undertake any activity. It appears that thereafter on 06.05.2008, the State Government passed another resolution, more particularly for Kutch District, whereby it is resolved for controlling the transportation of the wood of the Babul Trees or manufactured charcoal therefrom by issuance of the transit pass and in the said resolution it is also provided that the permission is not required if the trees are cut from the private land. However, it appears that the State Government passed the said resolution to control the transportation of the wood and charcoal of the babul trees by imposing the requirement of transit pass for transportation of such wood of babul trees or the charcoal made therefrom. It also appears that the representations were made before the State Government by the association of manufacturers of charcoal and other persons for grant of relaxation in the resolution dated 06.05.2008 contending, inter alia, that the charcoal if already manufacture prior to 06.05.2008 should be allowed to be transported. It also appears that the representations were made before the State Government by the association of manufacturers of charcoal and other persons for grant of relaxation in the resolution dated 06.05.2008 contending, inter alia, that the charcoal if already manufacture prior to 06.05.2008 should be allowed to be transported. The State Government in response to the said representations, passed another resolution dated 06.06.2008 whereby it was resolved to grant permission in cases of the charcoal already manufactured prior to 06.05.2008 for a period of 15 days, but with specific condition that charcoal shall not be exported outside Kutch District and shall be sold only to Gujarat State Forest Development Corporation Limited (hereinafter referred to as ‘Forest Corporation’ or ‘Corporation’) Some of the petitioners in the preset group did apply to the Forest Authorities for issuance of transit pass. However, the same has been declined on the ground that they may sell it to the Corporation as per the Government Resolution dated 6.06.2008. It is under these circumstances all these petitioners have approached this Court by the present petitions. 3. Heard the learned Counsel appearing for the petitioners and Mr. Pujari, learned AGP appearing for the respondent authorities in all the petitions. 4. As such on factual aspects for the change in the policy of the Government under the Act read with the Rules there is no dispute. It is also an admitted position that the policy is introduced for issuance of the transit pass for the first time after 2004 vide Resolution dated 06.05.2008. It is the contention of the State Authorities that transit pass will be required in all cases of transportation of charcoal even if they are manufactured prior to the resolution dated 06.05.2008. The resultant effect is that by the impugned resolution of the Government dated 06.05.2008 of regulating the transportation of forest produce namely; charcoal, the same is sought to be made applicable with retrospective effect. The learned AGP contended that the Government has resolved in the larger public interest to control illegal cutting of babul trees in the forest area and the manufacturing of charcoal and, therefore the action of the Government may be upheld by this Court. 5. It is by now settled that in normal circumstances, any change in policy or even subordinate legislature will have the prospective effect and it cannot be treated as effective with retrospective date. 5. It is by now settled that in normal circumstances, any change in policy or even subordinate legislature will have the prospective effect and it cannot be treated as effective with retrospective date. The resolution as such does not speak for issuance of transit pass even in respective of the charcoal already manufactured prior to 06.05.2008. Therefore, as such the resolution is to apply with prospective effect. It may be a different thing that the Forest Officer may insist for the verification on the aspects as to whether the charcoal was manufactured prior to 06.05.2008 and the proof thereof. But if the resolution is considered as it is, it would apply with prospective effect and not with retrospective effect. 6. It is also well settled that in normal circumstances, when the policy is to be framed or power is to be exercised under the delegated power by way of subordinate legislation, such cannot be exercised with retrospective effect. As in the resolution, there is no reference for giving retrospective effect, it may not be required for this Court to elaborately consider the question as to whether the resolution can be said as valid if it applies with retrospective effect, more particularly when the plain and simple reading thereof makes it clear that it is not to apply with retrospective effect. Therefore, the consequence would be that it would apply with prospective effect. 7. The attempt on the part of the learned AGP to contend that the Government has decided to regulate transportation by issuance of transit pass in the larger public interest, even if considered for the sake of examination may run counter, because it can hardly be contended by the State Government that earlier Government Resolution dated 13.12.2004 was not in the larger public interest. However, that does not mean that no change in the policy of the Government can be made. It may be within the power of the State Government to change the policy. However, that does not mean that no change in the policy of the Government can be made. It may be within the power of the State Government to change the policy. Even if the intention on he part of the State Government is to control the illegal cutting of forest trees namely babul trees, the same at the most may maintain the policy vide resolution dated 06.05.2008 with prospective effect and such public interest cannot be read to read the resolution dated 06.05.2008 of the Government with retrospective effect, so as to alter the rights of the citizen as already accrued on the basis of the policy prevailing then. 8. Since, the premises of the Government Resolution dated 06.06.2008 for grant of permission of transit pass during the period of 15 days is dependent upon the retrospective effect of the Government Resolution dated 06.05.2008, the same even otherwise also cannot be maintained as the policy of the Government vide resolution dated 06.05.2008 is to apply with prospective effect in respect of the cutting of the trees and the manufacturing of charcoal in cases where the activity is after 06.05.2008. The question of issuance of transit pass in respect of the charcoal already manufactured prior to 06.05.2008 would not arise. Further, even if the said resolution dated 06.06.2008 is considered for testing its validity on the other aspects than that of its retrospective effect vis-a-vis resolution dated 06.05.2008, the life of the said resolution dated 06.06.2008 so far as the issuance of the transit passes is concerned, was only for 15 days and the said period has, in any case, expired. Under these circumstances, as the basis of the resolution dated 06.06.2008 is non-existent on the premises of the retrospective effect of the resolution dated 06.05.2008, it can be said that the resolution dated 06.06.2008 of the State Government is ultra vires to its power, since the resolution dated 06.05.2008 does not authorise for making it effective prior to 06.05.2008. 9. Mr. Pujari, learned AGP contended that even if the resolution dated 06.05.2008 is treated with prospective effect, then also the requisite procedure vide resolution dated 13.12.2004 of the State Government would be required to be followed by the persons transporting the charcoal. It appears to the Court that the resolution dated 13.12.2004 is not the subject matter of the petition under challenge. It appears to the Court that the resolution dated 13.12.2004 is not the subject matter of the petition under challenge. Therefore, the position as was prevailing prior to 06.05.2008 including the applicability of the resolution dated 13.12.2004 shall prevail in respect of the charcoal manufactured prior to 06.05.2008. The State Government authorities shall be within their power to verify as to whether the procedure as required vide resolution dated 13.12.2004 is followed or not and if not followed, they may be at liberty to take action in accordance with law. 10. The learned Counsel appearing for the petitioners vehemently submitted that the officers of the Forest Department are not accepting any evidence to show that the babul trees were cut from the private land and the charcoal was manufactured therefrom. 11. Whereas it was submitted by Mr. Pujari, learned AGP that if the charcoal is manufactured from the wood of the babul trees over a private land, even otherwise also transit pass is required to be issued. However, it would be required for the person transporting the charcoal before issuance of the transit pass to satisfy the authority that the trees were cut form the private land and the charcoal is manufactured therefrom. It was also submitted that normally the forest officers are insisting for the revenue record of the owner of the land from where the trees were cut and other proof thereof. It was submitted that if the proper documents are produced in respect of the charcoal manufactured form the trees of the private land even after 06.05.2008, necessary transit pass shall be issued. 12. It deserves to be recorded that in normal circumstances, if babul trees have grown in its natural way over ay agricultural land or waste land, they would not be reflected in the village form 7/12, because the extracts of village form 7/12 are essentially meant for recording the agricultural cultivation. Still however, it would be within the power of the officers of the Forest Department to insist for the evidence, may be by way of affidavit of the owner of the land, the certificate of the Gram Panchayat or other reliable material on the basis of which the concerned officer, who has to issue the transit pass, can prima facie arrive at the satisfaction that the charcoal is manufactured from the trees grown on the private land. In cases where the officers doubt upon the reliability of the documents, they can verify with the revenue authority and may also verify the actual site. There can not be any exhaustive list for the degree of proof, the manner in which the satisfaction is to be arrived at, but suffice it to state that the concerned officer of the Forest Department would be at liberty to examine the genuineness of the claim that the charcoal is manufactured from the trees of the private land. If he finds that the charcoal is manufactured from the trees of the private land, it would be required from him to issue the transit pass and if he doubts the genuineness of the documents or there is a doubt that the trees were cut for the forest land, he may undertake the procedure in accordance with the law, but such doubt must be with some basis and it may not be upon ipse dixit of the officer concerned or in an arbitrary manner. Since, the transit passes are up till now not denied by the officers of the Forest Department after examining the poof from the person concerned, it may not be necessary for this Court to finally include on the said aspect but to leave it to the wisdom of the officer concerned, who is to issue the transit pass in such cases. 13. In view of the aforesaid, the following conclusion deserves to be recorded:— (a) The Resolution of the Government dated 06.05.2008 for issuance of the transit pass shall not apply in cases of the charcoal manufactured prior to 06.05.2008. However, it would be open to the officer of the Forest Department to verify that the charcoal was manufactured prior to 06.05.2008 and if yes, it would also be open to him to verify and ensure that the requisite procedure as was required pursuant to the Government Resolution dated 13.12.2004 has been followed. (b) The transportation or export outside Kutch District of the charcoal already manufactured prior to 06.05.2008, shall not be prohibited by the respondents on the ground that no transit passes are issued as per the Government Resolution dated 06.05.2008. (b) The transportation or export outside Kutch District of the charcoal already manufactured prior to 06.05.2008, shall not be prohibited by the respondents on the ground that no transit passes are issued as per the Government Resolution dated 06.05.2008. (c) The Government Resolution dated 06.06.2008 shall not survive in view of the non-existence of its basis to apply the Government Resolution dated 06.05.2008 with retrospective effect and also since the period of 15 days has expired form the date of the resolution. (d) In cases of charcoal manufactured after 06.05.2008, it would be open to the officers of the Forest Department to verify the genuineness of the claim that the charcoal was manufactured from the trees cut from the private land and it would also be open to the officers concerned to verify the site, if required. However, it would be required for the officer of the Forest Department to issue the transit pass or to take appropriate decision immediately or in any case, within reasonable time. 14. In view of the aforesaid conclusion, it is hereby declared that the Government Resolution dated 06.05.2008 shall apply with the prospective effect in cases of the charcoal manufactured after 06.05.2008 and shall not apply in cases of charcoal manufactured prior to 06.05.2008. The challenge to the Government Resolution dated 06.06.2008 shall not survive. In cases where charcoal is manufactured after 06.05.2008 by cutting trees from the private land, the procedure as observed herein above shall be followed by the officers of the Forest Department. If the claim is made for issuance of the transit pass, as observed earlier, such pass shall be issued upon the satisfaction arrived at within one week from the date of application and within two weeks thereafter in the event, the officer finds that the verification of actual site is required and he is satisfied after verification. However, it would be open to the officer of the Forest Department to decline transit pass in the event he is not satisfied with the documents produced or the claim is not found as genuine but in such cases also the decision shall be taken within one week or two weeks, as the case may be. However, it would be open to the officer of the Forest Department to decline transit pass in the event he is not satisfied with the documents produced or the claim is not found as genuine but in such cases also the decision shall be taken within one week or two weeks, as the case may be. It would be open to the officer of the Forest Department to get the verification of the charcoal manufactured prior to 06.05.2008, on the basis of the position prevailing prior to 06.05.2008, however, the transportation shall not be withheld on the ground that no transit passes are issued pursuant to the Government Resolution dated 06.05.2008. 15. It is also clarified that if the decision is rendered by the officer of the Forest Department against the concerned petitioner, he would be at liberty to resort to the proceedings as may be permissible in law. 16. The petition are allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.