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2001 DIGILAW 881 (PAT)

Bhartia And Sons v. State Of Bihar

2001-09-18

AFTAB ALAM

body2001
Judgment 1. As prayed by Mr. S. C. IV appearing for the State, this order is being passed to decide, as a preliminary issue the question arising in this case whether there was any legislative sanction for the directions contained in the letter, dated 10-7-2001 (Annexure 5) issued by the Commissioner-cum-Secretary, Department of Forest and Environment, Government of Bihar which in effect prohibit transportation of sisam wood (Dalbergia Sisoo) from Bihar to any place outside the State. In this letter, a declaration is made, purportedly of the legal position, that from the Ist paragraph of the notification of Bihar Timber and Other Forest Produce (Regulation of Transit) Rules, 1973 (framed under Sec. 41 of the Indian Forest Act) it was evident that those rules were framed to regulate the movement of timber and other forest produce within the State. Hence, there was no provision in those rules for issuing transit permit for transportation (of timber etc.) outside the State. The previous practice of issuing transit permits for transportation to different places outside the State was wrong. In that letter, it was further directed that in future it must be ensured that in terms of Sec. 3(ga) of the Rules the details of routes and names of destinations in the transit permit must confine within the boundaries of this State and it should also be borne in mind that those goods were being carried for consumption within the State. On the basis of this letter, the forest authorities are not only refusing to issue transit permits for transportation of sisam wood to any place outside the State but also seem to maintain that any transportation of sisam wood outside the State is impermissible and will not be allowed. 2. This writ petition has been filed challenging the aforesaid order and seeking a direction to the Divisional Forest Officer, Muzaffarpur Division to issue transit permit to the petitioner for transportation of sawn sisam in logs and pieces from East Champaran in this State to different places outside the State. The petitioner is a partnership firm engaged in the running of a Saw Mill. For running the Saw Mill, it holds a licence in Form C bearing Licence No. 261 of 1996, issued under the provisions of the Bihar Saw Mills (Regulation) Act, 1990 and the Saw Mills (Regulation) Rules, 1993 framed thereunder. The petitioner is a partnership firm engaged in the running of a Saw Mill. For running the Saw Mill, it holds a licence in Form C bearing Licence No. 261 of 1996, issued under the provisions of the Bihar Saw Mills (Regulation) Act, 1990 and the Saw Mills (Regulation) Rules, 1993 framed thereunder. According to the petitioner, it has purchased certain quantity of sisam wood standing on raiyati lands from the respective holders of the lands under valid permit(s) issued by the Forest Department. The petitioner wishes to transport the sawn pieces of sisam to different places outside the State and it approached the Divisional Forest Officer, Muzaffarpur for issuance of transit permit(s), as on many occasions in the past. The Divisional Forest Officer, however, refused either to issue the transit permits as requested by the petitioner or to allow movement of the consignment(s) in the absence of the permits. The refusal of the Divisional Forest Officer either to issue transit permits or to allow movement of the consignment(s) without the permits is based on the directions given in the impugned order issued by the Commissioner-cum-Secretary, Department of Forest and Environment on 10-7-2001. 3. Mr. Ram Balak Mahto, learned Senior Counsel appearing for the petitioner forcefully contended that the action of the respondent-authorities in refusing to issue transit permits and to allow the movement of the consignment(s) was violative of the constitutional mandate as contained in Article 301 and was an infringement of the petitioners fundamental right guaranteed under Article 19(1)(g) of the Constitution. Mr. Mahto contended that leaving aside the issue of reasonableness of the ban sought to be imposed by the impugned order, there was no legislative sanction for the executive to issue such a prohibitory order. 4. Faced with this argument advanced on behalf of the petitioner, Mr. S.C. IV submitted that the Court may first decide whether there was sufficient legislative foundation for prohibiting movement of sisam wood from the State to places outside. Mr. 4. Faced with this argument advanced on behalf of the petitioner, Mr. S.C. IV submitted that the Court may first decide whether there was sufficient legislative foundation for prohibiting movement of sisam wood from the State to places outside. Mr. Dutta submitted that in the event the Court found that the Legislature had given the executive the power to impose such a prohibition, then on the basis of the material facts and circumstances he was quite sanguine to satisfy the Court on the issue of reasonableness of the ban but on the other hand if the Court came to the conclusion that there was no legislative basis for the executive to impose a ban against the movement of sisam wood outside the State, then no amount of submissions on the reasonableness of the impugned order would save it. 5. Mr. Dutta is very correct in his submission. And this takes us to examine whether there is sufficient legislative basis for the executive to impose a complete ban against the movement of sisam wood outside the State. 6. Mr. Dutta agreed that by virtue of Standing Order No. 78, dated 8-2-1985 sisam wood was kept out of the purview of the Bihar Forest Produce (Trade) Act, 1984 and the Bihar Forest Produce (Trade) Rules framed thereunder and hence, all the legislative basis for the impugned order can only be found in the Indian Forest Act and the Bihar Timber and Other Forest Produce (Regulation of Transit) Rules, 1973 framed under that Act. Sec. 41 of the Indian Forests Act empowers the State Government to make rules to regulate the transit of all timber and other forest produce. Sec. 41(1) reads as follows : "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 State Government, and it may make rules to regulate the transit of all timber and other forest produce." 7. In exercise of this power, the State Government framed a set of rules called the Bihar Timber and Other Forest Produce (Regulation of Transit) Rules, 1973. The opening para of the notification of the Rules reads as follows : "In exercise of powers under Secs. In exercise of this power, the State Government framed a set of rules called the Bihar Timber and Other Forest Produce (Regulation of Transit) Rules, 1973. The opening para of the notification of the Rules reads as follows : "In exercise of powers under Secs. 41, 42 and 76 of the Indian Forests Act, 1927 (16, 1927) and cancelling all previous rules on this subject, the Government of Bihar makes the following rules for regulating transit WITHIN THE STATE of timber, firewood ...... through road, rail and air routes and other ancillary matters." 8. From the passage quoted above, it is evident that while exercising its rule-making power the State Government limited the field to transit of timber and other forest produce within the State. 9. Mr. Dutta submitted that the Rules provided regulatory mechanism only in respect of transit of timber etc. within the State. According to him, from this it followed, by implication that transportation of timber etc. outside the State was not permissible. Learned counsel pointed that no form was prescribed in the Rules for a transit permit for movement of timber etc. outside the State and no officer was authorised to issue such a permit. Mr. Dutta made a reference to Rule 3 which prohibits import, export, or even removal from its place any timber etc. until a permit in writing for the purpose was issued by a duly authorised officer. Learned counsel submitted that taking a consignment of timber etc. outside the State would naturally involve its removal from the place where it was originally kept and that was prohibited by Rule 3 without a permit in writing. Further that no permit for taking the consignment outside the State could be issued for the simple reason that there was no such provision in the Rules. From this also it would follow that movement of timber etc. outside the State was not permissible. This according to Mr. Dutta gave sufficient legislative sanction to the impugned order issued by the Commissioner-cum-Secretary, Department of Forest and Environment. 10. I am totally unable to accept the submission. From this also it would follow that movement of timber etc. outside the State was not permissible. This according to Mr. Dutta gave sufficient legislative sanction to the impugned order issued by the Commissioner-cum-Secretary, Department of Forest and Environment. 10. I am totally unable to accept the submission. On the one hand is the mandate of Article 301 and the question of a fundamental right of the petitioner guaranteed under Article 19(1)(g) of the Constitution and on the other hand what is offered to restrict the constitutional mandate and to circumscribe the fundamental right under the Constitution is a far fetched authorisation to the executive by implication based on omission of the rule to cover the field of movement of timber etc. outside the State. The respondent-authorities seem to view the omission and the deficiency in the 1973 Rules as a source of their power to prohibit movement of timber etc. outside the State in disregard of Articles 301 and 19(1)(g) of the Constitution. To me this stand appears to be based on inverted logic. The failure of the State Government to frame rules regulating the transit of timber etc. outside the State does not mean that the movement of timber outside the State is prohibited or that it empowers the executive to issue an order imposing ban against movement of timber outside the State. On the contrary, the State Governments failure to frame rules to regulate the movement of timber outside the State simply means that the field is uncovered and there is no control or regulation over movement of timber etc. outside the State. 11. I am also not impressed by the submissions made on Rule 3 of the Rules. Rule 3 cannot be taken out of its context. It is part of the Rules which were admittedly for regulating transit of timber etc. within the State. Therefore, if a consignment of timber etc. is removed from its place with the object of being carried outside the State and it is in fact carried to a place outside the State, then the prohibition of Rule 3 will not apply to the transportation. 12. In this view of the matter, the State Government will be well advised to make comprehensive rules, regulating the movement of timber etc. 12. In this view of the matter, the State Government will be well advised to make comprehensive rules, regulating the movement of timber etc. both within and outside the State, in exercise of the powers under Sec. 41 of the Indian Forest Act; or alternatively to take sisam wood also within the ambit of the Bihar Forest Produce (Trade) Act, 1984 and the Rules framed thereunder. But till such time as necessary legislative measures are taken, the respondent- authorities have no authority or power to prohibit movement of sisam wood outside the State. The impugned directions as contained in the letter, dated 10-7-2001 issued by the Commissioner-cum-Secretary, Department of Forest and Environment are accordingly set aside. 13. The preliminary issue being decided against the State, this writ petition is allowed but with no order as to costs. Petition allowed.