P L D 1965 (W (PLP)

(a) Forest Act (XVI of 1927), S. 41, read with S 2 (4), (6), (7) and Jhelum Firewood and Charcoal Depots Rules, 1950, rr. 2 to 9 Firewood and charcoal coming, or made from "timber", from any source (including privately owned trees), held subject to rules framed by Provincial Government. Held that under clause (a) of subsection (4) of section 2, Forest Act, 1927 timber whether brought from a forest or not to be treated as "forest‑produce". On the other hand trees not coming from a forest are to treated as "forest produce" under clause (b)(i). Charcoal is covered by the definition of "forest‑produce" and under clause (a) of subsection (4) of section 2 of the Act coal coming from a forest or not is included within the definition of the "forest‑ produce" for the purposes of the Act. Thus even the charcoal made out of privately owned trees growing on private land will be a" forest‑produce" under the Act. For the purposes of this Act once a tree has fallen or is felled or cut up it becomes timber irrespective of its kind, quality or use to which the wood is likely to be put. So long a tree is rooted to the earth and continues to receive its substance from the earth or is not felled it retains its character as a "tree" for the purposes of the Act. The Act does not recognize any distinction between different kinds and species of wood. A kikar tree for firewood remains a tree so long as it keeps standing with roots embedded to the earth. Once it is felled its wood is to be treated as "timber" for the purposes of the Act irrespective of the use to which it may be or is likely to be put. In this view of the definition a "tree" so long as it is growing on a privately owned land is not included in the definition of "forest‑produce" but once it is felled and cut up it is converted into "timber" which is also included in the definition of "forest‑produce" in the same way in which charcoal prepared from the tree will become a "forest‑produce". Wood or firewood irrespective of the fact it has its source or origin in a forest or not is included in the definition of "timber or other forest‑produce" for the purposes of section 41 of the Act. This being so, the Provincial Government has the powers to frame rules in order to regulate and control the transit, storage and distribution of charcoal and firewood produced from trees growing on privately owned lands as well. The term "timber" has been specially defined in the Forest Act and interpretation of similar terms in another enactment cannot be of any help. Lai Badshah v. Emperor A I R 1928 Lah. 80 ref. Lai Badshah v. King‑Emperor A I R 1925 Lah. 225 considered. (b) Forest Act (XVI of 1927), S. 41 read with Jhelum Firewood and Charcoal Depots Rules, 1950, r. 5 (2)‑Rule 5(2) held ultra vires the Provincial Government's rule‑making powers in so far as it authorises demanding of security for registration of depot‑Rest of the rules intra vires. The Provincial Government has by framing the impugned rules made certain provisions for registration of the depots and to keep authentic accounts of their business. It cannot be said that the Government has assumed to itself any unwarranted powers. These rules have been framed for the primary purpose of regulating and control over coal and firewood in the District of Jhelum and the restrictions if any are by no means unreasonable under the circumstances of the case. However, rule 5(2) of the impugned rules which empowers the Divisional Forest Officer to demand security not exceeding Rs. 250 from the applicants for the registration of the depots and to forfeit it for breaches of the terms of the licence is ultra vires of the Act. Section 41 of the Forest Act nowhere empowers the Government to levy any fee or tax or to demand any payment by way of security in the name of regulation and control on the transit and storage of timber or other forest produce. Said Omar v. Federation of Pakistan and others P L D 1956 Lah. 382 and Small Town Committee, Ram Nagar v. Firm Muhammad Sadiq‑Barkat Ali and others P L D 1960 S C 394 ref. On the 21st of September 1950 the Governor of the Punjab promulgated the Jhelum Firewood and Charcoal Depots Rules, 1950, under the Punjab Government Notification No. 3121‑D(F), dated the 21st of September 1950. These rules were framed for the local limits of Jhelum District and they came into effect immediately. Rule 2(3) defines a "Depot" to mean any building or place where firewood or charcoal is brought or stored for sale and includes the kilns made for burning charcoal for sale and also brick‑kilns in which firewood or charcoal is used. Under rule 3, it is obligatory for the person who wishes to establish or maintain a depot to have it registered in accordance with the rules. The depot is registered by the Divisional Forest Officer. Jhelum Forest Division, on the application of the person wishing to establish or maintain a depot. As required under rule 4, this application should contain the details about the source from which firewood or charcoal present in the depot or disposed of or used in it were acquired. Rule 5 empowers the Divisional Forest Officer or the appellate Authority in granting an appli cation for registration to demand security not exceeding Rs. 250 from the applicant to ensure that firewood and charcoal are not a brought from the Government Forests except in accordance with law. In this connection the Divisional Forest Officer is empowered to forfeit this security in whole or in part for breach of any of these conditions. Rule 6 provides that except in so far as otherwise exempt no depot shall be allowed to be established within two miles of the Government reserved, protected or un-classed forest. Under rule 7, the owner or person in charge of a registered depot is to maintain two registers for receipt and sale and removal of the firewood and charcoal giving the particulars of receipt and disposal in, the prescribed manner. These registers are subject to scrutiny by any Forest Officer under rule

9. Rule 9 makes the infringement of the rules punishable.

2. On the 8th of June 1954, Karam Elahi and others, the appellants, filed a suit in their representative capacity under Order I, rule 8 of the Code of Civil Procedure in the Court of the Senior Civil Judge, Jhelum, against the Punjab Province for a declaration that the above‑mentioned rules purporting to have been made under sections 40, 41 and 42 of the Forest Act, 19 27, are without lawful authority, ultra vires and illegal and are not binding on them. Their case as disclosed by them in the plaint is that they are dealers in firewood, charcoal prepared from wood and some of them are maintaining kilns for the burning charcoal and running the brick‑kilns in which they are burning wood and charcoal, in the District of Jhelum and unwarranted interference is being caused to them in their business and trade. They are being compelled to set up their depot, obtain licences for them and pay the fees and securities and keep accounts in order to run their business. In short, the plaintiffs have challenged the validity of all these rules as ultra vires and without jurisdiction.

3. The allegations of the plaintiffs were controverted by the defendant. The defendant also contested the validity of the notice sent by the plaintiffs under section 80 of the Code of Civil Procedure and also raised the plea that the suit by the plaintiffs was barred by time. The learned trial Court framed the following issues arising from the pleadings of the parties:‑ (1) Has a valid notice under section 80 of the Code of Civil Procedure been served? (O. P. P.) (2) Are the rules in suit ultra vires as alleged? (O. P. P.) (3) Is the suit barred by time? (O. P. D.) (4) Relief.

4. Mirza Bashir Ahmad, Senior Civil Judge, Jhelum, has decreed the suit of the plaintiffs in part only. The learned trial Court has made a distinction in favour of the timber and charcoal prepared from the trees growing on private property and has held that the rules are ultra vires of the Provincial Government in so far as they purport t4 regulate the storage and disposal of firewood and charcoal which pertain to trees grown on private property but these rules are not ultra vires qua the produce which has its source in a forest.

5. The Province of Punjab filed an appeal against the decree passed by the Senior Civil Judge, Jhelum, which was accepted by the learned District Judge, Jhelum. According to him the Government was empowered to frame these rules and no distinction can be made in respect of the fuel‑wood and charcoal produced from the trees growing on private properties. The suit of the plaintiffs was dismissed in its entirety on these findings.

6. This is a second appeal by the plaintiffs against the judgment and decree of the learned District Judge, Jhelum, On behalf of the appellants it has been argued before me that firewood and charcoal produced from trees belonging to private persons grown on their lands do not fall within the scope arid ambit of the rule‑making power of the Provincial Government under section 41 of the Forest Act and any rules framed by the Government imposing restrictions and regulating the trade in respect of the firewood and charcoal derived from privately owned trees grown on private lands are ultra vires of the Act. In short the learned counsel has adopted the reasoning followed by the learned Senior Civil Judge, Jhelum, partly decreeing the suit of the plaintiffs.

7. In order to appreciate the controversy between the parties it is better to reproduce the relevant provisions of section 41 of the Forest Act, 1927, hereunder: "Section 41.‑ (1) The control of all. rivers and their banks as regards the floating of timber as well as the control of all timber and other forest produce in transit by land or water, is vested in the Provincial Government, and it may make rules to regulate the transit of all timber and other forest produce, (2) In particular and without prejudice to generality of the foregoing powers such rules may:‑ (a) prescribe the routes by which alone timber or other forest produce may be imported, exported or moved into rom or within the province; (b) prohibit the import or export or moving of such timber or other produce without a pass from an officer duly authorised to issue the same or otherwise than in accordance with the conditions of such pass; (c) . . . . . . . . . . . (d) provide for stoppage, reporting, examination and mark ing of timber or other forest produce in transit, in respect of which there is reason to believe that any money is payable to the Crown on account of price thereof or on account of any duty, fee, royalty or charge due thereon or, to which it is desirable for the purposes of this Act, to affix a mark; (e) provide for the establishment and regulation of depots to which such timber or other produce shall be taken by those in charge of it for examination, or for payment of such money, or in order that such marks may be affixed to it; and the conditions under which such timber or other produce shall be brought to, stored at and removed from such depots; . . . . . . . . . . . . (3) The Provincial Government may direct that any rule made under this section shall not apply to any specified class of timber of other forest‑produce or to any specified local area.

8. The impugned rules were framed by the Provincial Government in exercise of the powers under sections 41 and 42 of the Forest Act. Broadly speaking, these rules enjoin upon those engaged in the sale of firewood and charcoal in the District of Jhelum to register depots with the Divisional Forest Officer, Jhelum Forest Division, who may demand security not exceeding Rs. 250 from the applicants to ensure that firewood and charcoal are not brought from Government forests except in accordance with law and the Divisional Forest Officer is authorised to forfeit the security for breach of any of the conditions. No depot can be established within two miles of the Government reserved, protected or un-classed forest. The owner or the person in charge of the registered depot is required to maintain registers for the receipt, sale and distribution of firewood and charcoal. Infringement of these rules is liable to punishment by imprisonment of either description for a term-which may extend to 6 months or to a fine which may extend to Rs. 500 or both.

9. Under section 41(1) of the Act the control on timber and other forest‑produce in transit by land or water is vested in the Provincial Government and it may make rules to regulate the transit of all timber and other forest produce. In particular under the various clauses to subsection (2) of section 41, the Government may frame the rules to regulate and control the transit, movement, storage of all timber and other, forest‑produce. Under this section the Government has no power to make rules in respect of things other than timber and other forest produce within the meanings of the Act. The case of the appellants in nutshell is that firewood and charcoal derived out of the trees and wood growing on privately owned land cannot be termed as timber or other forest‑produce for the purposes of this section.

10. The various words and phrases employed in t are defined in section 2 of the Act Subsection (4) of section 2 defines forest‑produce as follows:‑ "forest‑produce" includes‑ (a) the following whether found in or brought from, a forest or not, that is to say, timber, charcoal, caoutchouc natchu, wood‑oil, resin, natural varnish, bark, lac. mahua flowers, mahua seeds kith and myrabolams, and (b) the following when found in, or brought from, a forest that is to say, (i) trees and leaves, flowers and fruits and all other part or produce not hereinbefore mentioned, of trees, (ii) plants not being trees (including grass, creepers, reef and moss) and all parts or produce of such plants, (iii) wild animals and skins, tusks, horns, bones, sill cocoons, honey, and wax, and all other parts and produce animals, and (iv) peat, surface soil, rock and minerals (including limestone laterite, mineral oils and all products of mines or quarries)." A distinction has been made in clauses (a) and (b) of the above definition. Under clause (a) the things enumerated therein whether coming from a forest or not are included in the definition of forest‑produce" but under clause (b) the things coming from the forest alone are included in the definition. Thus under clause (a) timber whether brought from a forest or not is to be treated as "forest‑produce". On the other hand trees not coming from a forest are to be treated as "forest‑produce" under clause (b) (i) of the definition. The terms "timber" and "tree have also been defined in subsections (6) and (7) of section 2 of the Act as follows:‑ "2(6) `timber' includes trees when they have fallen or have been felled, and all wood whether cut up or fashioned or allowed out for any purpose or not; and (7) `tree' includes palms, bamboos, stumps, brush‑wood and canes."

11. As regards charcoal there is hardly any doubt that it is cohered by the definition of "forest‑produce" and under clause (a) of subsection (4) of section 2 of the Act coal coming from a forest or not is included within tile definition of the "forest B produce" for the purposes of the Act. Thus even the charcoal made out of privately owned trees growing on private land wilt be a "forest‑produce" under the Act.

12. For the purposes of the Act "timber" has to be distinguished from a "tree". According to the definition of the terra "timber" it includes trees when they have fallen or felled and all wood whether cut up or fashioned or hallowed out for any purpose. For the purposes of this Act once a tree has fallen or is Celled or cut up it becomes timber irrespective of its kind quality or use to which the wood is likely to be put. So long a tree is rooted to the earth and continues to receive its substance from the earth or is not felled it retains its character as a "tree" C for the purposes of the Act. The Act does not recognize any distinction between different kinds and species of wood. A kiker tree for firewood remains a tree so long as it keeps standing with roots embedded to the earth. Once it is felled its wood is to be treated as "timber" for the purposes of the Acc irrespective of the use to which it may be or is likely to be put In this view of the definition a "tree" so long as it is growing on a privately owned land is not included in the definition of `forest‑produce" but once it is felled and cut up it is converted into "timber" which is also included in the definition of "forest produce" in the same way in which charcoal prepared from the tree will become a "forest‑produce". It is thus clear from this discussion that wood or firewood irrespective of the fact it has its source or origin in a forest or not is included in the definition of "timber or other forest‑produce" for the purposes of section 41 of the Act. This being so the Provincial Government has the powers‑ to frame rules in order to regulate and control the transit, storage and distribution of charcoal and firewood produced from trees growing on privately owned lands as well. In Lal Badshah v. Emperor (A I R 1928 Lah. 80), it was held that the words "timber and forest produce" in section 41 are used in the widest sense as given in the definition to be found in section 2 and not in the narrow and restricted sense especially introduced to define and limit the powers described in Chapter

7. On a careful analysis of the relevant provisions, Harrison, J., dissented from the view expressed by him earlier in Lal Badshah v. King Emperor (A I R 1925 Lah. 225), and held that Chapter 7 of the Act gives power to the local Government without any control whatever to regulate transit, and if the illustration given in the matter regarding which such rules can be made be read carefully it is clear from the initial evidence of these explanations themselves that such control must apply to all forest produce whatever its source or origin and to whomsoever it may belong.

13. The learned counsel has cited before me a number of other authorities mainly dealing with the definition of the terms "trees" and "standing timber" in. the light of the provisions of Transfer of Property Act or the Registration. Act. These authorities are hardly in point. The term "timber" has been specially defined in the Forest Act and interpretation of similarly terms in another enactment' cannot be of any help.

14. The learned 'counsel for the appellants has further argued that section 41 of the Act only enables the Government to make rules with a view to "regulate" the transit and storage of timber and other forest produce. He has argued that the power of the Government to regulate does not vest in it with any plenary and unrestricted powers. The dictionary meaning assigned to the word "regulate" is "to control, govern or direct by rules or regulations, subject to guidance or restriction, to adopt to circumstances or surroundings, to adjust in respect of time, quantity, . . . ." In this connection, the learned counsel has relied on Said Omar v. Federation of Pakistan and others (P L D 1956 Lah. 382). He has also cited before me Small Town Committee, Ram Nagar v. Firm Muhammad Sadiq‑Barkat Ali and others (P L D 1960 S C 394), which lays down that in the garb of regulations the Provincial Government cannot exercise powers so as to charge fee for the use of marks by farming out the lands and appointing sole auctioneers and `arhties' within its own area. The principle of law; laid down in these authorities is well recognized. The Provincial Government has by framing the impugned rules made certain provisions for registration of the depots and to keep authentic accounts of their business. It cannot be said that the Government has assumed to itself any unwarranted powers. These rules have been framed for the primary purpose of regulating and control over coal and firewood in the District of Jhelum and the restrictions if any are by no means unreasonable under the circumstances of the case. However, rule 5(2) of the impugned rules which empowers the Divisional Forest Officer to demand security not exceeding Rs. 250 from the applicants for the registration of the depots and to forfeit it for breaches of the terms of the licence is ultra vires of the Act. Section 41 of the Forest Act nowhere empowers the Government to levy any fee or tax or to demand any payment by way of security in the name of regulation and control on the transit and storage of timber or other forest produce.

15. In Small Town Committee, Ram Nagar v. Firm Muhammad Sadiq‑Barkat Ali and others cited above, it was held that on the pretence of operating under regulatory provision, the authority cannot utilize its power as a measure for self‑enrichment. ' In my opinion, rule 5(2) of the impugned rules is ultra vires of the powers of the Government under section 41 of the Forest Act, 1927.

16. For the foregoing reasons I hold that only rule 5(2) of the impugned rules to the extent it authorises the Divisional Forest Officer, Jhelum Forest Division, to demand security from the applicants for the registration of depots is 'vires of section 41 of the Act and the suit of the plaintiffs for declaration to this extent only is decreed. There is no force in any of the remaining contentions raised on behalf of the plaintiff‑appellants and the rest of the suit of the plaintiffs shall stand dismissed. A. H.