State
of Bihar & Ors etc. Vs. Ranchi Timber
Traders Association [1996] INSC 845 (23 July 1996)
Punchhi,
M.M.Punchhi, M.M.Venkataswami K. (J)
CITATION:
1996 SCALE (5)498
ACT:
HEAD NOTE:
O R D
E R
Eight
writ petitions were allowed by Division Bench of the Patna High Court holding
that the Rules for the establishment of Saw-pits and establishment and
regulation of depots framed in the year 1983 by the State Government, Bihar in
purported exercise of powers conferred under sections 41, 42 and 76 of the Indian
Forest Act, 1927 were in excess of delegation or authorisation, exceeding
mandate, and hence a colourable exercise. On the basis of these rules, a public
notice was given by the Chief Conservator of Forest, Bihar to the effect that
the rules required all owners of Saw-pits and depots to obtain licences in
terms by 28-2-1983, and as a consequence if any saw-pit or depot was found
unlicensed from 1-3-1983, that would attract action and penalties under the
rules. We are required to examine the correctness or otherwise of such view of
the High Court.
Straightaway,
we go to the Act and the provisions whereunder the State Government claims to
have framed the 1983 rules. As is clear from the prefatory portion of the rulest
those are sections 41, 42 and 76 of the Indian Forest Act, 1927. Section 41
empowers the State Government to make rules to regulate the transit of forest
produce. Sub-section 1 of Section 41 provides that the State Government can
make rules regulating the transit of all timber and other forest produce by
land or water. Clause (e) of sub section (2) provides for the establishment and
regulation of depots to which such timber or other forest produce shall be
taken by those in charge of it for examination, or for the payment of such
money, or in order that such marks may be affixed to its and the conditions
under which such timber or other forest produce shall be brought to, stored at
and removed from such depots. Section 42 is supportive of Section 41 inasmuch
as it empowers the State Government to frame rules prescribing penalties for
breach of the rules in 4 terms of punishment of imprisonment and imposition of
fines. Section 76 apparently is all comprehensive for it provides the State
Government the additional powers to make rules. Clause (d) thereof, authorises
the State Government to make rules generally, to carry out the provisions of
the Act.
Now,
the High Court has taken the view that regulation of the business of timber and
forest produce at Saw-pits and depots, is not covered by either of the three
sections above-mentioned.
On
hearing counsel for the parties on the subject, and giving our earnest
consideration, we get to the view that the conclusion of the High Court was
totally erroneous. The variety of subjects provided in the sub-heads of
sub-section (2) of Section 41 are preluded with the expression in particular
and without prejudice to the generality of the foregoing power". wholesome,
power stands conferred on the State Government to make rules under sub-section
(1) of Section 41 with regard to transit of timber and other forest produce by
land or water. Conferral of such powers inheres in it the power to frame rules
in order to regulate places for stoppage, reporting examination and marking of
timber or other forest produce. Necessarily, duty, fee, royalty or charges due
thereon become due, if imposed. In order to avoid breach of the rules, Section
42 gets into line. Then comprehensive power on the subject is given generally
to the State Government as additional powers to make rules to carry out the
provisions of the Act. No one can be permitted to deny that regulating the
activity of keeping a saw-pit or a depot is not an activity to which the
provisions of the Indian Forest Act, 1927 would not be attracted. Thus,
requiring all the saw-pit holders or depot holders to obtain regulatory licences,
squarely fall within clause (d) of Section 76, if not, (without holding so)
under the power to regulate transit by land or air available under Section 41
of the Act. These three provisions namely Sections 41, 42 and 76 reflect an
integrated scheme to carry out the provisions of the Act and as the preamble of
the Act is suggestive to consolidate the laws relating to forests, the transit
of forest produce and the duty leviable on timber and other forest produce. The
power to regulate by license the upkeep of saw-pits and Depots is in any event
ancillary to the main power. We, therefore, have no hesitation to upset the
view of the High Court by allowing these appeals and in this manner dismissing
the writ petitions which were preferred by the respondents before the High
Court. We are doing so because it is otherwise not disputed that the second
question framed by the High Court relating to the vires of the Act on the
touchstone of Articles 14, 19 and 301 of the Constitution, left undecided by
the High Court, is not required to be decided by us. We allow the appeal
accordingly. No costs.
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