RANCHI TIMBER TRADERS ASSOCIATION Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners have filed the writ application for quashing the notification of the State Government dated 9-10-1996, a copy of which has been annexed As Annexure-4 to the writ application, by which sub-rule 3 of Rule 3 of the Bihar Timber and other Forest Produce Transit Rules, 1973 (hereinafter referred to as the Transit Rules) has been deleted wherein exemption with regard to 10 varieties of timber from operation of Transit Rules was given and for a direction restraining the respondents from acting pursuant to and in furtherance of the Transit Rules against the petitioner No. 1 and the members of the petitioner No. 1 and also to restrain them from enforcing direction contained in letter dated 18-10-96 issued by the Range Officer Timber Depots Range Ranchi (respondent No. 5). Subsequently, by an amendment petition filed on 21-11-1996 they have challenged the vires of the Transit Rules aned also sought for declaration that the Transit Rules has been impliedly repealed pursuant to enactment of the Bihar Saw Mills (Regulation) Act, 1990.

(2.) The petitioner No. 1 is a Society registered under the Societies Registration Act and is an Association of Timber Traders specially of Ranchi district. Petitioner No. 2 is its Secretary and petitioner Nos. 3 to 6 are its members. All the members of the Society carry on the business of Saw Mills and the present writ application has been filed in representative capacity. It is asserted that the State Government in exercise of power under Sections 41, 42 and 76 of the Indian Forest Act ( hereinafter referred to as the Forest Act) framed a Transit Rule, 1973 which require permit by a competent authority for transportation of the timber and other forest produce as detailed in the said Rules. The State Government issued a notification published in the Official Gazette on 4-7-94 byy which sub-rule 3 was added after sub-rule 2 Rule 3 of Transit Rules. It also amended rules 6 and 8 of the aforesaid Transit Rules. A copy of the said notification has been annexed as Annexure-2 to the writ application. By virtue of the aforesaid amendment the provision of the Act was made in applicable to ten varities of timbers, namely, Aam, Imli, Jamun, Kathal, Mahua, Gramin Bas, Pipal, Bargad, Pakar and Barhar. Rules 6 and 8 were also amended. Rule 6 prescribes the Form to be filed by the private owners of the forest who wanted to transport the timber from their land. Rule 8 was also amended by which punishment prescribed earlier was enhanced. Thereafter the impugned notification has been issued deleting sub-rule 3 of Rule 3, the effect of which is that the exemption from operation of the Transit Rule to 10 varieties of timbers or trees has been withdrawn. It is asserted that the aforesaid notification contained in Annexure-4 cannot be given effect to as the same has not been published in the Official Gazette in terms of Section 78 of the Forest Act. It is also asserted on their behalf that the provision of the Forest Act does not apply to the timber and other forest produce grown on the raiyati lands as the same is not the forest produce as defined under the Forest Act and as such no Transit permit is required with regard to the export or import of the timber and other forest produce grown on the land of the raiyats. The Bihar Government has enacted Forest Produce (Regulations of Trade) Act, 1984 and Bihar Saw Mills (Regulations) Act, 1990 with a view to regulate the establishment and running of the Saw Mills in the State of Bihar as well as the trade in the forest produce and there is an elaboration provision under the aforesaid Acts controlling the movement of the timber and forest produce and as such the transit rules stands impliedly overruled or ceased to have any utility. It is also submitted that the Transit Rules of 1973 is violative of Article 19(1)(g) of the Constitution of India on the ground of substantive and procedural unreasonableness. It has put unreasonable restriction on the petitioners in carrying on their business/trade. The rules have given unfettered power to the authorities to refuse or grant permit. No guideline has been laid down. No remedy has been provided to challenge the order of the authority and as such the same is to be declared void/ ultra vires.

(3.) Counter affidavits have been filed on behalf of the respondents-State and its Officers and their stand is that the notification dated 9-10-96 was published in the Official Gazette on 12-10-1996 and a copy of which has been annexed as Annexure-A to the counter affidavit. According to them two enactments, namely, Bihar Forest Produce (Regulation of Trade) Act and Bihar Saw Mills (Regulation) Act operate in different fields. Former has been enacted for the purpose of providing for State monopoly in trade of specified forest produce in order to enable the grower to get the fair price of the produce. The forest produce has been defined under the said Act and the private forest produce has not been included in the said Act and it is applicable only to the specified forest produce as specified under the Schedule of the Act and the latter has been enacted for the purpose of regulation of Saw Mills in the State under which the Saw Millers have to get them-selves registered and file regular returns of timber etc. obtained converted and sold in their esta-blishments. It applies only after forest produce reaches at Saw Mills. Major portion of forest produce are transported for consumption in the form of poles, ballies, agriculture equipment, beams, rappers, fencing posts and fire wood etc. without Saw milling or conversion through mechanical means or minor dressing or axes and other hand tools.