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J. PARLIAMENTARY INTENT OF 'FOREST PRODUCE' UNDER SEC.

2(4) OF THE FORESTS ACT CITATION NO. 2025:MPHC-JBP:8363

51. Sec. 2 titled as 'Interpretation Clause' is the definition clause of the enactment, whereunder Secs. 2(4) and 2(6), defines 'forest-produce' and timber as follows:

"2. Interpretation clause.--In this Act, unless there is anything repugnant in the subject or context, --
(1) ....
(4) 'forest-produce' includes--
(a) the following whether found in, or brought from, a forest or not, that is to say:-- timber, charcoal, caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds [kuth] and myrabolams, and

57. The interpretation of Sec. 2(4) defining forest produce fell for interpretation before the Division Bench of the Orissa High Court in the matter of Kasi Prasad Sahu v. State of Orissa & Anr., AIR 1963 Ori 24, wherein validity of the Orissa Timber and Forest Produce Transit Rules, 1958 requiring a permit from the authorised forest officials for transit of mahua flowers and other forest produce was challenged. Explaining the scheme of Sec. 2(4), the Division Bench of the High Court held that the Parliament has made it absolutely clear that Mahua flowers shall be deemed to be forest produce under the Forest Act, regardless whether they were brought from a forest land or not and even if grown on private lands, they would still be treated as a forest produce. Once it is a forest produce, the Government therefore possesses ample powers under Sec. 41 to regulate by rules the transportation, storage and transit of forest produce as defined under the Forest Act, even though the said produce may not have stricto sensu generated or originated from within the confines of the forest. Rebuttable presumption under Sec. 69 of the Forest Act also gets attracted to such 'forest produce' wherein it is presumed to be treated as a government property.

88. For yet another reason, we are constrained to hold that all the aforementioned reports/ recommendations of policy documents are essentially recommendatory in nature, expressing the desirability of 'what should be', instead of 'what it is'. Even though at first blush they appear to be laudable towards promoting a liberalized regime for trading and business of forest produce grown on private and non-forest lands, however on a closer scrutiny, such a distinction is not borne out by the express wordings of Sec. 2(4) of the Forest Act as explicated above. Whilst defining 'forest produce', the Parliament took extreme caution in attributing what should be treated as forest produce, regardless of its source or genesis. We had in the earlier part of the judgment made reference to Kasi Prasad Sahu v. State of Orissa & Anr. (supra) to hold that a forest produce like mahua or timber does not cease to be forest produce within the rigours of Chapter IX of the Forest Act simply because its grown or cultivated on private land outside the forest area. Likewise in case of forest produce falling within the definition provided under Sec. 2(4)(b), it would be presumed as a forest produce, till and until it is shown or demonstrated that the class of material or product claimed to be falling under Sec. 2(4)(b) has not originated from within the forest area. Meaning thereby that burden of proof to show that material or product is not a forest produce qua the ingredients mentioned under Sec. 2(4)(b) is on the person/ transporter carrying it and not on the State or the forest department. If blanket exemption is granted to a large number of species then it leads to defeating the very objective of enactment of penal provisions under Chapter VII of the Forest Act and special provisions like Sec. 69.

115. Therefore, even though the validity of the previously issued notifications of 2005 and 2007 would revive (since they were substituted by the impugned exemption notification), we deem it fit to restrain the State Government from enforcing them by staying their operation and effect by keeping them in abeyance for a period of 6 months from the date of this judgment. During this period of 6 months, if the State intends to come out with any fresh exemption notification of any number of species, then it shall undertake a State wide study and survey by a High Powered Committee (for short, 'HPC') constituted by it for finding out which all species proposed to be exempted are present substantially/ significantly in the local and regional forests of the State. By forest we mean not only notified forest, but the forests as defined and interpreted by the Hon'ble Supreme Court in the matter of T.N. Godavarman Thirumulpad v. Union of India, (supra). Therefore, if any species proposed to be exempted (or exempted under 2005 & 2007 notifications) by the State is found present substantially/ visibly in the local or regional forests of the State by necessary implication, it cannot remain exempted from the regulatory regime of the Transit Pass Rules, even though it may lead to incidental hardships to all those who intend to trade or transport the forest produce of such species.