Bombay High Court
Kisan Bhagwan Gawali And Others vs State Of Maharashtra And Others on 12 June, 1989
Equivalent citations: AIR1990BOM343, AIR 1990 BOMBAY 343
ORDER V. A. Mohta, J.
1. Is a total ban on grant of licence required for grazing cattle in Government forest units permitted for grazing to 'Kathewadi' graziers Constitutional? In our view the answer to the above question has to be in the negative.
2. First the small factual background against which the question falls for consideration. The petitioners are graziers owning herds of cow and calves from Kathewad region in the Gujarat State. They move all over India in search of fodder for their cattle, specially because of the conditions of famine prevailing in that area. They survive on sale of milk and manure from the cattle. They also settle down at fixed places preferably where cattle can be fed easily. Such graziers were granted grazing licences for some period earlier, but the respondents -- State of Maharashtra and its Forest Officers -- Off late took a policy decision not to grant such licences to any Kathewadi grazier and totally excluded that class from for consideration for grant of licence in future. The justification put forth is that some of them indulged in illegal grazing and created law and order problem.
3. Indian Forest Act, 1927 (the Act) regulates, inter alia, pasturing of cattle in the Government forests. Section 32(f) and Section 76 of the Act contains rule making power vested in the State Government, under which Grazing Rules for the Maharashtra State (the Rules) have been framed under Government Resolution No. MFP-1365/132211-Y dated 6th December, 1968 supplemented by Government Resolution No. MFP 1371 / 237035-2 dated 3rd November, 1973. Rule 44 of the 1973 resolution refers to the areas in respect of which and persons to whom grazing licences can be granted. It uses the terminology "cultivator family and others" as a category of persons to whom licences can be granted.
4. It is contended on behalf of the State that only those who permanently reside in the neighbourhood of the grazing unit are qualified to get the licence under Rule 4 and since Kathewadi graziers do not fall in that category, even under the Rules they are not entitled to grazing licence. The submission sounds hollow to us. Clear meaning that can be given to the said terminology is that anyone can be considered for grant of licence. The very fact that so far such licences were being freely granted to Kathewadi graziers indicates that even the respondents never understood the terminology to carry that narrow interpretation, which we are pursuaded to accept.
5. The right of the forest officers to refuse licence to an individual on merits cannot be or has not been questioned before us. The crux of the matter is whether only because some of the persons belonging to a particular class were in the past guilty of breach of the Act and had created law and order problem, the class as a whole can be totally barred from consideration for grant of licence, and prevented from carrying on the business or profession upon which only their livelihood depends.
6. It is difficult to accept that only Kathewadi graziers have been and can be guilty of violation of the Act and not others, We are unable to see any justification for a distinction between Kathewadi graziers on one hand and all other graziers on the other hand. Indeed very scanty material is placed before us to justify such an extreme and harsh stand and policy decision. The Return specifies commission or forest offence for illicit grazing against only one such grazier. There is only a vague reference in the Return to the violent behaviour of that class and of creation of law and order problem.
7. Having regard to the above position, the impugned policy decision is violative of Articles 14, 19 and 301 of the Constitution.
8. We are not left unguided on the issue of restrictions on such graziers based on pollibility of destruction of forest wealth by them. The Grazing Rules framed by the Madhya Pradesh Government under Section 32(1) and 76 of the Act provided for a levy of higher grazing rate upon the cattle not belonging to that State and for ceiling of 45 days in which that "foreign" cattle must pass through the State. The Rules also provided for the prescription of routes along with cattle had to be taken. The validity of those rules was questioned in the case of Lakshman v. State of Madhya Pradesh, . That part of the rules which provided for levy of higher grazing rates and ceiling of 45 days was declared unconstitutional by the Supreme Court. The following observations arc to the point -- and we can do no better than to quote them -- and apply with more rigour to the instant case of total ban: (Para 3) "Forests of Madhya Pradesh are not graz-
ing grounds reserved for cattle belonging to residents of Madhya Pradesh only, even as, the towns and villages of Madhya Pradesh cannot be reserved for the residence of the original residents of Madhya Pradesh only. Accidents of birth and geography cannot furnish the credentials for such discrimination and authorise prejudicial treatment in matters of this nature. We do not say that geographical classification is never permissible. For example, a preference given by a State to its residents in the matter of admission to educational institutions maintained by the State from its revenues may be well justified. But we are unable to see any such justification for the levy of virtually penal grazing charges in the case of owners of cattle belonging to other States. The only attempt at justification is that the influx of 'foreign cattle' is resulting in the distruction of the forest wealth of the State. It is difficult to understand this justification. If cattle belonging to residents of Madhya Pradesh are allowed to graze, will it not lead to the same damage as by the cattle belonging to persons of other State? Surely it cannot be that the Madhya Pradesh cattle are less destructive than the cattle belonging to persons of other States."
9. To conclude, the petition is allowed and the impugned policy decision is struck down as unconstitutional. Needless to mention that the respondents are free to reject the individual applications on merits in accordance with law. Rule made absolute in the above terms. No costs.
10. Petition allowed.