High Court
Case Details
WA 89/2008 BEFORE THE HON’BLE CHIEF JUSTICE HON’BLE MR. JUSTICE N.KOTISWAR SINGH N.Kotiswar Singh,J. The issue raised in this writ appeal is whether wooden frames f or window and ventilator are (cid:28)forest produce (cid:29) within the meaning of section 3(4) of the Assam Forest Regulation, 1891, which the learned Single Judge had held t o be so, in the judgment and order dated 01.02.2008 in W.P(C) No.1853 of 2007, w hich is under challenge in present proceeding. [2] ed as follows.
Facts
The background facts of the present case as relevant may be stat The forest officials of Duminichowki Forest Check Gate intercept ed a truck bearing registration No.AS-12B-9732 on 29.12.2005, which was carrying wooden frames for window, ventilator and dinning table towards Guwahati. The sa id wooden frames were seized by the forest officials on the ground that these we re (cid:29)forest produce (cid:29) within the meaning of Section 3(4) of the Assam Forest Regu lation,1891, and these were transported without the necessary transit permit. A proceeding was accordingly initiated. The Authorised Forest Of ficer concluded that the said finished products of wood were (cid:28)forest produce (cid:29), t ransportation of which would require transit permit as per Government notificati on dated 4.5.2002 which was not obtained at the time of transportation of the sa id products and the vehicle in which the said wooden products were transported w as confiscated vide order dated 4.12.2006 passed by the Authorised Forest Office r. Against the aforesaid decision of confiscation by the Authorised Forest Offic er, an appeal was preferred by the present appellants as provided under section 49-C of the Assam Forest Regulation, 1891 before the learned Sessions Judge, Da rrang in Criminal Appeal No.35 (D-4)/2006 and the learned Sessions Judge, Darrang allowed the appeal vide order dated 28.3.2007 setting aside the order of confiscation dated 4.12.2006 and directed release of the vehicle to the owner . Being aggrieved by the decision of the learned Sessions Judge, [3] Darrang, the Authorised Forest Officer preferred a writ petition before this Cou rt which was registered as W.P(C) No.1853 of 2007, contending, inter-alia, that the definition of ’forest produce’ as given under section 3(4)(a) of the Assam F orest Regulation,1891 includes ’timber’, and ’timber’ has been also defined unde r section 3(3) of the said Regulation to mean ’trees’ also, when they have felle d or have been felled or ’all wood’, whether cut out or fashioned or hollowed ou t for any purpose. According to the Authorised Forest Officer, since the wooden frames for window and ventilator were cut or fashioned out of wood for the purpo se of window or ventilation frame, the same are to be treated as (cid:28)forest produc e (cid:29). The learned Single Judge, allowed the writ petition by distinguishing the de cision of the Supreme Court in Suresh Lohiya v. State of Maharashtra, (1996) 10 SCC 397 which was relied upon by the appellants and observed as follows:- (cid:28)17. My quest for an answer to the question, as to whether ’wooden frames’ of wi ndow and ventilator can be regarded as ’forest produce’ or not, brings me to the definition of ’timber and, when I turn to the definition of ’timber’, I notice that Section 3(3), which contains definition of ’timber’ reads thus: ’timber’ m eans trees, when they have felled or have been felled or all wood, whether cut o ut or fashioned or hollowed out for any purpose or not and includes trees when cut into pieces or sizes or peeled out or sliced out (veneer) for manufacturing of ply-board, block board or any other purposes or not. & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & 22. In the backdrop of the fact that ’bamboo’ or cane does not, ordinarily mea n ’timber’, let me revert to the definition of ’timber’. A careful and microscop ic reading of the ’timber’ as given in Section 3(3) and quoted above, shows tha t the definition of the word ’timber stands divided into two distinct parts, whi ch are to be read disjunctively and not conjunctively. The first part of the def inition of the word ’timber’ shall be read to mean ’trees’, when they have felle d or have been felled; whereas the second part of the word ’timber’ shall be re ad to mean all ’wood’, whether cut out or fashioned or hollowed out for any purp ose or not and includes trees, when cut into pieces or sizes or peeled out or s liced out (veneer) for manufacturing or ply-board, block board or any other purp oses or not. A correct manner of reading the definition of ’timber’ is, in the v iew of this Court, thus: ’timber’ means trees when they have felled or have bee n felled, or all wood, whether cut out or fashioned or hollowed out for any purp ose or not and includes trees, when cut into pieces or sizes or peeled out or sl iced out (veneer) for manufacturing of ply-board, bock board of any other purpos es or not & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & & &. 23. What logically follows from the above is that the word ’wood’ is not rel atable to the word ’bamboo’ or ’cane’; hence, the word ’wood’, occurring in the definition of the word ’timber’ in Section 3(3), would not relate to bamboo or cane, but only to the word ’tree’ as is, ordinarily understood. This aspect bec omes clear, when one reads carefully the decision in Suresh Lohiya vs. State of Maharastra and ors., reported in (1996) 10 SCC 397, which the respondents rely upon. In Suresh Lohiya (supra), the Supreme Court had an occasion to determine whether ’wood’ in the given definition of ’timber’, in the Indian Forest Act, 19 72, would include ’fashioned bamboo’, such as betti and chetti. 24 & & & & & & & & & & & & & & & & & & & & & & & & & & & & &. & & & & & & & & & & & & & & & & & & & & & & & & & & & & &. 27. What follows from the above discussion is that while reading the definition of ’tree’ as given in Section 3(2) the word ’tree’ would include palms, bamboos, stumps, brushwood and canes. However, while construing of ’timber’ as given in Section 3(3), the word ’wood’ would not be relatable to ’fashioned cane’ or ’fas hioned bamboo’. That is why, ’fashioned bamboo’ or ’fashioned cane’, such as, ’c hatti’ and ’betti’ would not be regarded as ’timber’; whereas the word ’tree’, e ven in the definition of ’timber’, would mean and include not only ’tree’ as i s ordinarily understood, but also ’fashioned wood’, such as, wooden frames of window and ventilator. To put is a little diffe rently ’betti’, and ’chetti’, which are fashioned bamboos and canes, will not fa ll within the definition of ’timber, as given in Section 3(3), but all whether c ut out or fashioned for any purpose, would remain ’timber’. 28. It is because of the reason that the ’fashioned wood’ ’does not include ’bamboo’ that the Apex Court, in Suresh Lohiya(supra), held that though bamboo , as a whole, is a forest produce’, but when ’fashioned bamboo’ is brought into existence by human labour, a new and distinct product, commercially known to the business, community totally different from its original, such an article and p roduct would cease to be ’forest produce’. All observations, made in Suresh Lohi ya (supra), have to be read in the light of the conclusions reached by the Apex Court as indicated hereinbefore. It cannot, therefore, be said that whenever a commercially new and distinct product is brought into existence by human labour out of ’wood’ it too would cease to be tree. At the cost of repetition, I must point out that when ’fashioned wood’ is admittedly tree, one cannot escape from the conclusion that when ’wood’ is cut or fashioned, it becomes ’fashioned wood ’, but it nevertheless still remains a ’tree’ it will within the ambit of the d efinition of ’forest produce’ as given in Section 3(4) (a). 29. In short, what emerges from the above discussion is that even ’fashioned wo od’ such as, wooden frames of window and ventilator are ’forest produce’ within the meaning of Section 3(4)(a). Hence, when the vehicle, in question, was, admit tedly, found carrying ’forest produce’ without requisite permit, a forest offen ce, within the meaning of Section 3(5), was committed and since the vehicle was used in the commission of the forest offence and the respondent No.1, who is the owner of the vehicle, has miserably failed to show that he took all reasonable and due precaution to ensure that his vehicle was used in the commission of na y forest offence, the vehicle was liable to confiscation and had been correctly confiscated. Viewed thus, it is clear that the impugned appellate order, passed by the learned Sessions Judge, Darrang, is contrary to law and cannot be allowed to survive. (cid:29) The conclusion of the learned Single Judge that the wooden frame s for windows and ventilators which are ’fashioned wood’ are ’forest produce’ is based on the reasoning that all ’wood’ whether, fashioned or hollowed out for a ny purpose would be covered by the definition of ’timber’ given in Section 3(3) and definition of (cid:28)forest produce (cid:29) under section 3(4) (a) of the Assam Forest Regulation, 1891. Ld. Single Judge also held that when ’fashioned wood’ is admitte dly ’tree’, one cannot escape from the conclusion that when ’wood’ is cut or fas hioned, it becomes ’fashioned wood’, but it nevertheless still remains a ’tree’ and it will fall within the ambit of the definition of ’forest produce’ as given in Section 3(4) (a) of the Assam Forest Regulation, 1891. The ld. Single Judge also distinguished the decision of the Su preme Court in Suresh Lohiya (supra) which was dealing with the issue whether ’’ fashioned bamboo’ or ’bamboo mat’ would be a ’forest produce’ under the Indian F orest Act, 1927 by stating that ’bamboo’ or ’cane’ is not relatable to the word ’wood’ in the second part of the definition of the word ’timber’ because of whic h ’fashioned bamboo’ or ’fashioned cane’ would not be regarded as ’timber’, wher eas the word ’tree’, even in the definition of ’timber’ would mean and include n ot only ’tree’ as is ordinarily understood, but also ’fashioned wood’ such as wo oden frames of window and ventilator. The Ld. Single Judge also held that all ob servations, made in Suresh Lohiya (supra), have to be read in the light of the c onclusions reached by the Apex Court in the said case and further held that it c annot be said that whenever a commercially new and distinct product is brought i nto existence by human labour out of ’wood’ it would cease to be ’tree’. [4]
Legal Reasoning
[8] We are of the view that the principle laid down in the a foresaid case of Suresh Lohiya (supra) will be applicable in the present case al so. Before we proceed further, it may be required to ascertained as to what actu ally were seized by the Authorised Forest Officer. A perusal of the records prod uced (which include the affidavit in opposition on behalf of the respondents in the writ petition) reveals that the following wood products were seized. 1. Window - 5’ x 7’ - 1 piece. 2. Window - 5’ x 5’ - 1 piece. 3. Window - 4’ x 3’ - 2 pieces. 4. Window - 5’ x 3’ - 1 piece. 5. Ventilator- 7’ x 1 ‰ ’ - 1 piece. 6. Ventilator - 5’ x 1 ‰’ - 1 piece. 7. Ventilator- 4’ x 1‰ ’ - 3 pieces. 8. Dining Table - 1 piece What were thus seized were not mere loose ’’fashioned wo od’, but assembled wooden frames. The said seized materials have been prepared o ut of the wood or timber by cutting and fashioning by applying human labour to g ive certain shape in the form of frame for window and ventilator for use as such . A new product has emerged out of tree or timber or wood which was not availabl e in the forest. The tree or timber or wood has undertaken certain transformatio n brought about by application of human labour with a new identity with commerci al value. A new identity has evolved. The wooden frames for window and ventilato r, though are derived from wood or tree, have acquired new attributes. In other words, these are finished products of wooden frames for window and ventilator kn own in the commercial parlance as substances having distinct characters and attr ibutes, different from the normal tree or timber or wood or any other fashioned wood and as such, can no longer be treated as ’forest produce’. [9] The learned Single Judge held that definition of ’timber’ not on ly includes ’tree’ as it is understood ordinarily but also all wood, whether cut up or ’fashioned’ and since the wooden frames of window and ventilator are also ’fashioned wood’, hence ’timber’, these will be covered by the definition of ’f orest produce’ even if a commercially new distinct product emerges. We are unabl e to agree with the reasoning given by the learned Single Judge. True, under the second part of the definition of ’timber’ in the Assam Forest Regulation,1891 a ll wood including ’fashioned wood’ would be considered ’timber’, hence a ’forest produce’, yet every ’fashioned wood’ need not be a forest produce, if the same has already undergone further changes by application of human labour to assume a new and distinct identity. If the wood are merely fashioned for the purpose of construction of window frame or ventilator frame and remain at the stage of ’fa shioned wood’ only without being assembled and taking the new shape of window or ventilator frames, perhaps these ’fashioned wood’ would still remain as ’forest produce’ within the meaning of Section 3(4) (a) of the Assam Forest Regulation,1891. However, once these ’fashioned wood’ are assem bled and take the form and shape of window frame or ventilator frames, these no more remain as mere ’fashioned wood’ as these have acquired an additional and ne w commercial identity as window frame or ventilator frame. The seized wooden products were not mere wooden pieces or stumps which w ere fashioned but fashioned wood subsequently assembled and taken the shape of w indow and ventilator frames, having assumed a distinct form with new commercial identity. In other words, the seized articles which are more than mere ’fashione d wood’ with new additional attributes and transformed into new distinct product , can no longer be treated as ’forest produce’.
Arguments
We have heard the learned counsel for the parties. The learned counsel for the appellants relying on the judgment o f the Supreme Court in Suresh Lohiya (supra) however, has urged that the said wo oden frames being finished products of wood or tree has assumed a commercially n ew and distinct identity, and can no longer be considered as ’forest produce’. [5] In Suresh Lohiya (supra), the Supreme Court held that even thoug h bamboo as a whole is a ’forest produce’, if a product, which is commercially n ew and distinct, known in the business parlance, has been brought into existence by application of human labour, such an article and product would cease to be a ’forest produce’. It was also held that the definition of ’forest produce’ woul d not take into its fold article or thing which is different from a forest produ ce having a distinct character and accordingly held that a bamboo mat is distinc t from bamboo in the commercial world and cannot be treated as a ’forest produce ’. [6] It may be noted that in Suresh Lohiya (supra), the Supreme Court was interpreting ’forest produce’ as defined in Indian Forest Act, 1927, and ’t imber’ and ’tree’ have similar definitions given under Assam Forest Regulation,1 891. In the said case, the Supreme Court decided that a bamboo mat which is deri ved from bamboo would not be considered a ’forest produce’ within the meaning of Indian Forest Act, 1927 in view of the fact that a product with commercially ne w and distinct character has been brought into existence. [7] The Supreme Court Suresh Lohiya (supra), considered the issue before it mainly from three perspectives. Under the Indian Forest Act, 1927 ’tim ber’ has been defined as follows: (cid:28)Sec. 2(6) ’timber’ includes trees when they have fallen or have been felled, an d all wood whether cut up or fashioned or hollowed out for any purpose or not; (cid:29) (emphasis added). It may be mentioned that in the definition of ’timber’ given in the Assam Forest Regulation, instead of conjunctive word and, the disjunctive wo rd or has been used. Referring to the aforesaid definition, the Supreme Court held th at the second part of the definition of ’timber’ does not take into its fold fas hioned bamboo as that part is relatable to wood and not tree. Therefore, as a c orollary, ’fashioned bamboo’ not being wood would not be covered by the definiti on of ’timber’ and hence not ’forest produce’, even though bamboo as a whole is a ’forest produce’. Secondly, referring to the definition of ’forest produce’ which is similarly defined as in the Assam Forest Regulation, the Supreme Court held that what is contemplated in the definition of ’forest produce’ is that of natu rally grown or produced and not man made products. Thirdly, by endorsing the view taken by the Gujarat High Court i n Fatesang Gimba Vasava vs. State of Gujarat, AIR 1987 Guj 1, the Supreme Court held that even if bamboo as a whole is a forest-produce, if a product, commerc ially new and distinct, known to the business community as totally different is brought into existence by human labour, such an article and product would cease to be a forest-produce. In Fatesang (supra), the Gujarat High Court had held, (cid:28)13. & & & & & & & Now the expression ’forest-produce’ as defined by S. 2(4) <javascr ipt:fnOpenGlobalPopUp(’/ba/disp.asp’,’22343’,’1’);> of the Act includes trees an d leaves, flowers and fruits and all other, parts or produce of trees. Section 2 (7) <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’22343’,’1’);> which defines ’t ree’ includes a bamboo. Therefore, bamboos are undoubtedly forest-produce. Topla s, palas and supdas are undoubtedly prepared from bamboo chips and can be descri bed as bamboo-articles, but do such articles fall within the definition of ’fore st produce’? A careful look at the various clauses of the definition of forest-p roduce makes it clear that it takes within its fold all that is produced by natu re but does not include man-made products such as toplas, palas, supdas, etc., m ade from bamboo chips. True it is that if bamboo as a whole is forest-produce, e very part thereof including chips would fall within that definition but once the chips cease to be a ’produce’ of nature and get merged into a ’product’ brought about by human labour and if the product so made is commercially new and distin ct, known to the business community as a totally different commodity having a di stinct character, such an article or product ceases to be a forest-produce, i.e. , furniture made from timber or paper produced from bamboo-pulp. Therefore, bamb oo being a tree would certainly fall within Clause (b) of the definition of ’for est-produce’, but toplas, supdas and palas made out of bamboo chips would not fa ll within the definition of forest-produce & & & &. & & & & &. (cid:29) Thus, In Suresh Lohiya (supra), the Supreme Court held, 6. We have given our considered thought to the rival contentions. It app (cid:28) ears to us that the High Court erred in taking the abovesaid view by referring t o the definition of ’timber’ inasmuch as we agree with Shri Bhatia that the seco nd part of the definition does not take within its fold fashioned bamboo as that part is relatable to woo d, and not tree. We have said so because the definition of tree includes even ca nes, and a cane cannot be taken as a wood, even if a tree could be. But then, th e High Court has also referred to sub-clause (i) (supra) which speaks of produce of tree as well. As to this, submission of the appellant’s counsel has been tha t when sub-clause (i) is read as a whole the same would clearly indicate that su ch produce of tree alone is contemplated which is a natural growth or product li ke flowers and fruits. This submission has force when the definition of forest-p roduce is read in its entirety which would show that the definition either inclu des nature’s gifts like charcoal, mahua flowers or minerals. Wild animals of whi ch sub-clause (iii) speaks of is also a God’s gift and not man-made. Wherever th e legislature wanted to include article produced with the aid of human labour, i t has said so specifically as would appear from sub-clause (iv), as it speaks, a part from minerals etc. of (cid:28)all products of mines or quarries (cid:29). 7. The legislature having defined (cid:28)forest-produce (cid:29), it is not permissible to us to read in the definition something which is not there. We are conscious of the fact that forest wealth is required to be preserved; but, it is not open to us t o legislate, as what a court can do in a matter like at hand is to iron out crea ses; it cannot weave a new texture. If there be any lacuna in the definition it is really for the legislature to take care of the same. 8. We may also state that according to us the view taken by the Gujarat Hi gh Court in Fatesang case1 is correct, because though bamboo as a whole is fores t-produce, if a product, commercially new and distinct, known to the business co mmunity as totally different is brought into existence by human labour, such an article and product would cease to be a forest-produce. The definition of this e xpression leaves nothing to doubt that it would not take within its fold an arti cle or thing which is totally different from forest-produce having a distinct ch aracter. May it be stated that where a word or an expression is defined by the l egislature, courts have to look to that definition; the general understanding of it cannot be determinative. So, what has been stated in Stroud’s Judicial Dicti onary regarding a ’produce’ cannot be decisive. Therefore, where a product from bamboo is commercially different from it and in common parlance taken as a disti nct product, the same would not be encompassed within the expression (cid:28)forest-pro duce (cid:29) as defined in Section 2(4) of the Act, despite it being inclusive in natur e. That bamboo mat is taken as a product distinct from bamboo in the commercial world, has not been disputed before us, and rightly. 9. In view of all the above, we hold that bamboo mat is not a forest-pro duce in the eye of the Act, and so, allow the appeal, set aside the impugned jud gment of the High Court and state that the order of confiscation passed by the C onservator of Forest was not in accordance with law. (cid:29)
Decision
[10] In our opinion, in the light of the decision in Suresh Lohiya ( supra) the decisive factor would be that, if any ’forest produce’, on applicati on of human labour acquires a new form or shape with distinct commercial identit y, the same would no longer remain a ’forest produce’ by virtue of the new and d istinct character and form assumed with input of human labour. Accordingly, we h old that the seized wooden frames for window and ventilator which, though initia lly may be fashioned wood, having assumed a distinct form, shape and character w ith commercial identity in the popular parlance because of application of human labour, would no more be covered by the definition of ’forest produce’ as define d under section 3(4) (a) of the Assam Forest Regulation, 1891. [11] In the result, the appeal is allowed. The judgment and order dat ed 01.02.2008 passed by the learned Single Judge in W.P(C) No. 1853/2007 is, ac cordingly, interfered with and set aside. Consequently, the confiscation order dated 4.12.2006 passed by the Authorised Forest Officer is also quashed and the order dated 28.3.2007 passed by the learned Sessions Judge, Darrang is upheld fo r the reasons given above. Parties are to bear their respect costs.