RANCHI TIMBER TRADERS Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this petition by M/s Ranchi Timber Traders Association in the representative capacity on behalf of 156 members, list whereof has been furnished in Annexure-1, the vires of the Bihar Saw Mills (Regulation) Act, 1990 ('the Act', in short) and the Bihar Saw Mills (Regulation) Rules 1993 ('the Rules', in short) has been questioned.

(2.) THE Act is said to be colourable exercise of legislative power. It is said, in support of the plea, that the State Government in exercise of power under Sections 41, 42 and 76 of the Indian Forest Act, 1927 had framed Bihar Rules for the Establishment of Saw Pits and Establishment and Regulation of Depots 1983 in respect of the establishment of saw pits and timber depots which was held by this Court to be ultra vires, vide judgment reported in 1984 BBCJ 8. THE State Preferred S.L.P. (Civil) Nos. 16877-84 of 1983 against the said judgment. By order dated 16.4.84, the Supreme Court stayed the judgment of this Court and restored the interim order of this Court passed in the connected writ petitions. Reference was made to the order dated 15.3.1983 passed in C.W.J.C. 188 of 1983 (R), Annexure-2. By the said interim order the petitioners were permitted to apply for licence and the Divisional Forest Officer was directed to grant the licence without prejudice to the contentions. It was, accordingly, submitted that by reason of the aforesaid interim order of the Supreme Court dated 16.4.84 granting stay of the High Court's judgment and restoration of its interim, as aforesaid, the 1983 Rules must be deemed to have continued to be in force. Counsel for the petitioners, however after making submissions on the point very fairly conceded that mere, interim order of stay does not result in revival of the law which has already been held to be ultra vires. THE Government Advocate on behalf of the State stated that the State does not wish to pursue the aforesaid appeals in the Supreme Court. He, in fact, drew our attention to an order dated 17.2.92 passed in one of them, namely, Civil Appeal No. 2091 of 1984 by which the appeal was dismissed and the interim order dated 16.4.84 vacated. Government Advocate further stated that the statement may be recorded that the other appeals too will not be pressed, Accordingly, the plea that the impugned legislation is colourable exercise of legislative power on the aforesaid ground is rejected.

(3.) IT is well settled that although the preamble is part of the Act it does not enact the law. IT can be looked into for the purpose of finding out its aims and objects or resolving any ambiguity as an aid in construction of a provision. The question of legislative competence has to be judged not on the basis of what is said in the preamble but what is contained in the substantive provision of the Act. Counsel for the petitioners could not point out any provision in the Act or the Rules touching upon the environment. The provisions are intended to regulate the establishment and operation of saw-mills and saw-pits and trade of sawing. The Act is fully covered by Entry 17-A of List III of VIITh Schedule to the Constitution, namely, 'Forests'. The said entry was Entry 19 of List II until the 42nd Amendment of the Constitution. Dealing with the scope and meaning of the term 'forests' as occurring in Entry 19 of List II as it stood prior to the 42nd Amendment, a Full Bench of Five Judges of the Bombay High Court in the case of Janu Chandra Waghmare v. The State of Maharashtra held that the term 'forests' in its normal and popular connotation includes all that goes with it, such as, trees with fruits on them, shrubs, bushes, woody vegetation, undergrowth, pastures, honey-combs attached to trees, juices dried on trees, things embedded in the earth like mines and quarries with their produce locked up in the land, wild and stray animal living in the forest, described by the Compendious expression 'forest produce'. IT was stated that even if any forest produce is severed from its place of birth or origin through the intervention of a human agency, if such severed forest produce continues to lie in the forest in its primary or predominantly primary state without anything being done to it for altering or changing its natural condition, the same will still form part of the forest produce. I have no manner of doubt having regard to the extended meaning of the term 'forests', as interpreted by the Bombay High Court, that any law to regulate the trade of sawing and establishment and operation of saw-mills and saw-pits will fall under Entry No. 17-A of List III.