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2002 DIGILAW 877 (JHR)

Narayan Saw Mill v. State of Bihar

2002-08-14

HARI SHANKAR PRASAD, M.Y.EQBAL

body2002
Judgment M. Y. Eqbal, J.-'Whether a person after making an application under Section 5 of the Bihar Saw Mills (Regulation) Act, 1990 (in short the said Act) becomes entitled to operate his Saw Mill or Saw pit after expiry of thirty days in terms of the proviso to Section 5 of the said Act, is a moot question to be decided in this case. 2. Before deciding this question it would be useful to refer some of the relevant facts of this case. The appellant filed an application under Section 5 of the said Act for grant of a licence for operating a Saw Mill. The said application dated 13.7.93 was received in the office of the Divisional Forest Officer, Giridih being the licensing authority on 19.7.93. When the application of the appellant was not disposed of, he filed a fresh application on 11.2.94 for grant of licence which remained pending for consideration. Appellant's further case is that since his application having not disposed of within 30 days he became a 'deemed licensee' and started operating the Saw Mill from 1.4.94. On 14.4.94 a raid was conducted by the respondents in the said Saw Mill and huge quantity of illegally procured wood was found in the premises of the appellant. The respondents then initiated a confiscation proceeding against the petitioner and final order in the confiscation proceeding was passed by the Divisional Forest Officer and the seized articles were confiscated. The appellant then preferred an appeal against the said order before the Conservator of Forest which was dismissed on 26.3.93. In the mean time the application filed by the appellant for grant of licence for operating Saw Mill was rejected and the said order was affirmed in appeal filed by the appellant before the Appellate Authority. These orders were challenged by the appellant in the aforementioned C.W.J.C. No. 2964/ 1997(R). 3. The learned Single Judge, by the impugned judgment dated 12.1.99, dismissed the writ petition holding that the appellant though applied for grant of licence but without passing any order in that regard started operating the Saw Mill. A raid was conducted and huge quantity of forest produce was recovered from the said Saw Mill. The learned Single Judge, therefore, held that since the appellant failed to comply the requirements of law, his application for grant of licence was rightly rejected by the licensing authority. 4. Mr. A raid was conducted and huge quantity of forest produce was recovered from the said Saw Mill. The learned Single Judge, therefore, held that since the appellant failed to comply the requirements of law, his application for grant of licence was rightly rejected by the licensing authority. 4. Mr. R. N. Sahay learned counsel appearing on behalf of the appellant mainly contended that the learned Single Judge has erred in holding that the appellant, without a licence having been granted, started operating his Saw Mill contrary to the provisions of Section 5 of the said Act. Learned counsel further submitted that proviso to Section 5 of the said Act very clearly provides that after expiry of 30 days from the date of filing of the application the applicant acquires the status of a deemed licensee and, therefore, he is entitled to operate Saw Mill without waiting for the disposal of his application for grant of licence. 5. Mr. R.S. Mazumdar, learned Government Advocate, on the other hand submitted that irrespective of the provisions of Section 5 of the said Act the court cannot direct the licensing authority to grant licence for the establishment of Saw Mill in the State of Bihar. Learned counsel relied upon a decision of the Supreme Court in the case of T.N. Godavarman Thirumulkpad vs. Union of India and Ors. reported in A.I.R. 1997 SC 1228. 6. Before appreciating the rival contentions of the parties it would be useful to look into the relevant provisions of the Act. Bihar Saw Mills (Regulation) Act. 1990 was enacted and published in the Bihar Gazette dated 7.12.90 and obtained the assent of the President in November. 1990. The said Act was enacted for regulating in the public interest the establishment and operation of Saw Mills and Saw Pit and Trade of sawing for the protection and conservation of forest and the environment. Section 2 of the said Act defines the word 'Saw Mill' which means the plant and machinery with which and the premises including the precincts thereof in which or in any part of which sawing is carried on with the aid of electrical or mechanical power. Section 2 (h) defines 'Saw Pit' which means a place where wood is sawn by manually operated saws. Section 2 (h) defines 'Saw Pit' which means a place where wood is sawn by manually operated saws. The word 'sawing' as defined in Section 2(i) with is grammatical variations and cognate expressions means operations of sawing, cutting, converting, fashioning or seasoning wood and includes preservation and treatment thereof either by mechanical process with the aid of electrical or mechanical power or manually operated saws. The term 'wood' as defined in Section 2(k) includes trees when they have fallen or have been felled, and all wood of any species whether cut, converted, fashioned, sawn or hollowed out for any purpose or not. Sections 3 and 4 of the said Act empower the State Govt. to appoint the licensing officer and the prescribed authority for the purpose of carrying out the provisions of the said Act. Section 5 is the relevant provision which reads as under:- "5. Application for licence.-On and from the appointed date:- (a) No person shall establish a saw mill or a saw pit except under the authority and subject to the conditions of a licence granted in that behalf under this Act; (b) no person shall operate a saw mill or a saw pit in existence on the said date, unless he is granted a licence in that behalf under this Act on an application made by such person within a period of thirty days from such date : Provided that for the period of thirty days and thereafter the period during which the application is pending for consideration, it shall be deemed as if such person was granted a licence under this Act and he was operating the saw mill or saw pit accordingly. Section 6 empowers the State Government to declare by notification the prohibited area for such period not exceeding 3 years. Sub-Section (2) of Section 6 provides that during that period no licence shall be granted or renewed for the establishment or operation of saw mill or a saw pit. Section 7 provides the procedure for filing of application for grant/renewal/revocation/suspension of licence. Section 8 empowers the licensing officer to make entry, inspect, search and seize. Section 12 is the provision of appeal against the order of refusal of licensing officer to grant or renew the licence. Section 13 lays down the provisions for confiscation of saw mills etc. It reads as under:- "13. Section 8 empowers the licensing officer to make entry, inspect, search and seize. Section 12 is the provision of appeal against the order of refusal of licensing officer to grant or renew the licence. Section 13 lays down the provisions for confiscation of saw mills etc. It reads as under:- "13. Confiscation of saw mills etc.(1) Save as provided in Clause (b) of Section 5, (a) where a saw mill or saw pit is established or operated in an area declared to be a prohibited area under sub-section (1) of Section 6; or (b) where a saw mill or saw pit is established or operated without a licence or without renewal of licence under sub-sections (2) and (4) respectively of Section 7; or (c) where the saw mill or saw pit is operated after suspension or revocation of a licence under sub-section (5) of Section 7; or (d) where the saw mill or saw pit is operated with the aid of electrical energy or electrical installation in contravention of the provision of sub-section (1) of Section 11; or (e) unaccounted wood is stored in the saw mill or saw pit, the licensing officer may order confiscation of the stock of wood unlawfully stored together with whole or portion of the plants and machinery, implements and equipments which have been used in the commission of the offence. (2) No order confiscating any property shall be made under sub-section (1) unless the person from whom the property is seized and in the case the owner of such property is known, such person is given (a) a notice in writing informing him of the grounds on which it is proposed to confiscate such property; (b) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds for confiscation; and (c) a reasonable opportunity of being heard in the matter. (3) Any forest officer not below the rank of a conservator of forest empowered by the State Govt. (3) Any forest officer not below the rank of a conservator of forest empowered by the State Govt. in this behalf by notification, may within 30 days from the date of order of confiscation by the licensing officer under sub-section (1), either suo motu or on application call for and examine the records of that order and may make such enquiry or cause such enquiry to be made and pass such orders as he may think fit : Provided that no order prejudicial to any person shall be passed without giving him an opportunity of being heard. (4) Any person aggrieved by an order passed under sub-section (3) may, within thirty days from the date of communication to him of such order, appeal to the District Judge having jurisdiction over the area in which the property has been seized and the District Judge shall, after giving an opportunity to the parties to be heard, pass such order as he may think fit and the order of the District Judge so passed shall be final. Where an order of confiscation of any property passed under sub-section (1) or subsection (3) or sub-section (4) has become final in respect of the whole or any portion of such property, such property or the portion thereof, as the case may be, shall vest in the State Govt. free from all encumbrances. (5) An order of confiscation under sub-section (1) or sub-section (3) or sub-section (4) shall not be deemed to bar the imposition of any other penalty to which the person from whom the property is seized is liable under this Act. 7. Bihar Saw Mills (Regulation) Rules, 1993 has been framed in exercise of powers conferred by Section 23 of the said Act which lay~ down the procedure for carrying out the provisions of the Act. 8. In the case of Ramcharitar Das vs. State of Bihar reported in 1996 (2) PLJR 69 the constitutional validity of the Bihar Saw Mills Regulation Act was challenged on the ground, inter alia, that the provisions of the Act are violative of Articles 14, 19 and 21 etc., of the Constitution. Upholding the vires of the said Act the Division Bench held as under: "The provisions of the Act are so comprehensive that they cover all the grievances of any person aggrieved. Upholding the vires of the said Act the Division Bench held as under: "The provisions of the Act are so comprehensive that they cover all the grievances of any person aggrieved. Sections 3 and 4 enact for appointment of the licensing officer and prescribed authority, and Section 6 provides for declaration of prohibited area. Once an area is declared prohibited no licence can be granted for establishment of a Saw Mill or a Saw Pit in that area. Section 7 postulates for grant, renewal, revocation or suspension of licence. Section 12 provides for appeal by any aggrieved person against the order of refusal of licence or against the order of licensing officer refusing to renew the licence within thirty days of the service of the order on him. Section 14 posts, penalty and section 15 enacts offence by the Companies. In this view of the matter details provisions have been made under the Act to safeguard the interest of any aggrieved persons and it is complete Code in respect of the forest produce. 9. The - constitutional validity of the said Act was again considered by the Division Bench of the Patna High Court (in which I was a party) in the case of M/s. Ranchi Timber Traders Association vs. State of Bihar reported in 1997 (2) PLJR 673 . In the said case the petitioner had prayed for quashing the notification of the State Government dated 9.10.96 by which sub rule (3) of rule 3 of the Bihar Timber and other Forest Produce Transit Rules, 1973 was deleted wherein exemption with regard to 10 varieties of timber from operation rules was given. The validity of the notification was assailed on the ground that after enactment of Forest Produce (Regulation of Trade) Act, 1984 and Bihar Saw Mills (Regulation) Act, 1990 and the transit rules have been impliedly overruled or ceased to have any utility. After considering the aforementioned Acts their Lordships held as under: 'The last point advanced on behalf of the petitioner is also devoid of any substance. After considering the aforementioned Acts their Lordships held as under: 'The last point advanced on behalf of the petitioner is also devoid of any substance. The Bihar Forest Produce (Regulation of Trade) Act has been enacted, as evident from the object and perusal of the different provisions of the Act for the purpose of providing monopoly to the State in trade of specified forest produce and the Bihar Saw Mills (Regulation) Act has been enacted to control the activities of the Millers of the Saw Mills. The Transit Rules control the transit of Forest Produce from the place of its cutting to the place where it is transported for consumption or other use. There is no provision in the aforesaid two Acts for controlling the transit from cropping point to the Saw Mills or to other place for consumption and other use. Thus, the rules can not be held to be impliedly repealed by virtue of the aforesaid two Acts". 10. It is worth to be mentioned here that the constitutional validity of the proviso to section 5 above "deemed licensee" in the light of the Forest Conservation Act was neither in issue nor was considered by the Division Bench of the Patna High Court in the cases referred to hereinabove. 11. As noticed above the appellant mainly put heavy reliance on the proviso to Section 5 of the said Act which provides that for 30 days and thereafter the period during which the application for grant of licence is pending for consideration, it shall be deemed as if such person was granted licence under the Act and he was operating the saw mill or saw pit accordingly. The question therefore, which falls for consideration is whether a person becomes entitled to operate the saw mill or saw pit as a deemed licensee only because he filed an application for grant of licence and period of 30 days has expired or whether the proviso to Section 5 is against the public policy and is liable to be struck down. 12. In order to come to a correct decision it is necessary to look into the provisions of other laws applicable in the present case. The Constitution (Forty-Second Amendment) Act of 1976 has transferred forests from Entry 19 of the State List to the Concurrent List Entry 17 A of the Constitution. 12. In order to come to a correct decision it is necessary to look into the provisions of other laws applicable in the present case. The Constitution (Forty-Second Amendment) Act of 1976 has transferred forests from Entry 19 of the State List to the Concurrent List Entry 17 A of the Constitution. Consequently this transfer empowers the Central Government to act directly in managing India's forests. In 1980, the Ministry of Environment and Forests was set up. In 1980, the Forest Conservation Act was passed which was amended in 1988. The National Forest Policy was adopted in 1952 and was also revised and the revised National Forest Policy was adopted in 1988. An analysis of the forest laws and National Forest Policy shows that the Indian Government has adopted a policy sympathetic to the needs of forest dwellers but has enacted laws which restrict access of these people to the forests. The Forest (Conservation) Act, 1980 as amended in 1988 places restrictions on the power of the State Government concerning preservation of forests or use of forest land for non-forest purposes. Section 2 of the Act directs that the State Government shall not make, except with the prior approval of the Central Government, any order directing that any forest land shall cease to be reserved or that any forest land may be used for any non forest purpose. The State Government is also prohibited from assigning any forest land by way of lease or otherwise to any private person or non-governmental body. 13. For better appreciation section 2 of the Forest Conservation Act, 1980 is quoted herein below: "Restriction on the dereservation of forests or use of forest land for non forest purpose.-Notwithstanding anything contained in any other law for the time being in force in a State, no State Govt. or other authority shall make, except with the prior approval of the Central Govt. any order directing: (i) that any reserved forest (within the meaning of the expression 'reserved forest' in any law for the time being in force in the State) or any portion thereof, shall cease to be reserved. (ii) that any forest land or any portion thereof may be used for any non forest purpose. any order directing: (i) that any reserved forest (within the meaning of the expression 'reserved forest' in any law for the time being in force in the State) or any portion thereof, shall cease to be reserved. (ii) that any forest land or any portion thereof may be used for any non forest purpose. (iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or any authority, Corporation, agency or any other organization not owned, managed or controlled by Government. (iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation. Explanation:- For the purpose of this section 'non-forest purpose' means the breaking up or clearing of any forest land or portion thereof for- (a) the cultivation of tea, coffee, spices, rubber, palms, oil bearing plants, horticultural crops or medicinal plants. (b) any purpose other than reafforestation. But does not include any work relating or ancillary to conservation, development and management of forests and wild life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes." 14. From a bare reading of the afore said provision it is manifest that nonobstante clause contained in the said section makes it clear that after commencement of the said Act the State Government cannot enact such law which permits a person to use the forest for non-forest purposes and that can be done only with the prior approval of the Central Government. The question whether running of a Saw Mill of any kind comes within the mischief of section 2 of the Forest Conservation Act, came for consideration before the Apex Court in the case of T.N.Godavannan Thirumulkpad's case (supra). Since great significant point was involved relating to protection and conservation of forest throughout the country the Apex Court noticed the Central Govt. as well as all the State Governments and they were heard. The Apex Court, after considering the provisions of the Forest Conservation Act, 1980 issued general directions to the Central Government and all the State Governments. Since great significant point was involved relating to protection and conservation of forest throughout the country the Apex Court noticed the Central Govt. as well as all the State Governments and they were heard. The Apex Court, after considering the provisions of the Forest Conservation Act, 1980 issued general directions to the Central Government and all the State Governments. One of the general directions issued by the Supreme Court is quoted herein below: "In view of the meaning of the word "forest" in the Act, it is obvious that prior approval of the Central Govt. is required for any non-forest activity within the area of any "forest' In accordance with Section 2 of the Act, all ongoing activity within any forest in any State throughout the country, without the prior approval of the Central Govt. must cease forthwith. It is therefore clear that the running of saw mills of any kind including veneer or ply wood mills and mining of any mineral are non-forest purposes and are. Therefore not permissible without prior approval of the Central Govt. Accordingly any such activity pima facie violation of the provisions of the Forest Conservation Act. 1980. Every State Govt. must promptly ensure total cessation of all such activities forthwith." 15. The aforesaid decision of the Supreme Court again came for consideration before their Lordships and in terms of the order dated 4.3.97 ( AIR 1997 SC 1233 ) it was held: "All unlicensed saw mills veneer and ply-wood industries in the of Maharashtra and the State of Utter Pradesh are to be closed forthwith and the State Govt. would not remove or relax the condition for grant of permission/licence for the opening of any such saw mill, veneer and ply wood industry and it shall also not grant any fresh permission/licence for this purpose. The Chief Secretary of the State will ensure strict compliance of this direction and file a compliance report within two weeks." 16. Having regard to the provisions contained in the Forest Conservation Act, 0980 and the Bihar Saw Mills (Regulation) Act, 1990 and in the light of the decisions of the Supreme Court, before deciding the validity of the proviso to section 5 of the said Act I would like to refer some of the relevant provisions of the Constitution of India. Having regard to the provisions contained in the Forest Conservation Act, 0980 and the Bihar Saw Mills (Regulation) Act, 1990 and in the light of the decisions of the Supreme Court, before deciding the validity of the proviso to section 5 of the said Act I would like to refer some of the relevant provisions of the Constitution of India. Article 249 of the Constitution of India empowers the Parliament to take up for legislation by itself any matter enumerated in list II when such legislation is necessary or expedient in national• interest. Article 249 of the constitution reads as under: Art. 249 : "Power of Parliament to legislate with respect to a matter in the State list in the national interest. - (1) Notwithstanding anything in the foregoing provisions of this chapter, if the council of States has declared by resolution supported by not less than two third of the members present and voting that it is necessary and expedient in national interest that Parliament should make laws with respect to any matter enumerated in the State list specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force. (2) A resolution passed under clause (1) shall remain in force for such period not exceeding one year as may be specified therein: Provided that, if and so often as a resolution approving the continuance in force of any such resolution is passed in the manner provided in clause (1), such resolution shall continue in force for a further period of one year from the date on which under this clause it would otherwise have ceased to be in force. (3) A law made by Parliament which Parliament would not but for the passing of a resolution under clause (1) have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period." 17. Article 251 of the Constitution provides that when there is inconsistency between the laws made by the Parliament and the laws made by the State Legislatures then the law made by the Parliament shall prevail and the law made by the State Legislatures shall, to the extent of repugnancy, be inoperative. Article 251 reads as under: Art. 251 : "Inconsistency between the laws made by the Parliament under Articles 249 and 250 and laws made by the legislatures of States.-Nothing in Articles 249 and 250 shall restrict the power of the Legislature of a State to make any law which under this Constitution it has power to make, but if any provision of law made by the legislature of a State is repugnant to any provision of a law made by Parliament which Parliament has under either of the said Articles power to make, the law made by Parliament, whether passed before or after the law made by the legislature of the State, shall prevail, and the law made by the Legislature of the State shall to the extent of the repugnancy, but so long only as the law made by Parliament continues to have effect, be inoperative:' 18. Article 253 of the Constitution provides that the Parliament may make any law for the whole or any part of the territory of India for implementing any treaty, agreement, or convention with any other country or countries or any decision made at any international conference, association or other body. 19. The next important provision in the Constitution is Article 254 which is relevant for the present case. The said Article reads as under: Art. 254 : "Inconsistency between laws made by Parliament and law made by the Legislatures of States.-(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State." 20. In the case of "R.M.D. Chamarbaugwalla and anr. VS. Union of India & Anr., [ AIR 1957 (SC) 628 ], the question that fell for consideration before the Apex Court was whether a statute which is void in part is to be treated as void in toto, or whether it is capable of enforcement as to that part which is valid is one which can arise only with reference to laws enacted by bodies which do not possess unlimited powers of legislation. The Apex Court also considering the scope and extent of "Doctrine of sever ability", held that when a statute is in part void, it will be enforced as regards that rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the competency of the legislature or by reason of its provision contravening constitutional prohibitions. Their lordships summarized certain rules of construction laid down by the American Courts where the question of sever ability has been subject of consideration in numerous authorities. Those are as under: 1. In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. 2. In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. 2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. 3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. 4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is to thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it, will be rejected in its entirety. 5. The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different sections, it is not the form, but the substance of the matter that is material, and that has to be ascertained or an examination of the Act as a whole and of the setting of the relevant provision therein. 6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of its must be struck down as void, as otherwise it will amount to judicial legislation. 7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object the title and preamble to it. 21. 7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object the title and preamble to it. 21. Article 254 of the Constitution of India clearly lays down that where there is a direct collision between a provision of a law made by the State and that made by Parliament with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the State law would be void to the extent of the repugnancy. This naturally means that where both the State and Parliament occupy the field contemplated by the Concurrent List then the Act passed by Parliament being prior in point of time will prevail and consequently the State Act to yield to the Central Act. While interpreting the provisions of Article 254 of the Constitution, the Apex Court in the Case of "M. Karunanidhi VS. Union of India" [ AIR 1979 (SC) 898 ] lays down the following circumstances when repugnancy arises: (1) Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconciliable, the Central Act will prevail and the State Act will become void in view of the repugnancy. (2) Where however, a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254. (3) Where a law passed by the State Legislature being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the 'four corners of the State List and entrenchment, if any, is purely incidental or inconsequential. (4) Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with or repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President• under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254". 22. In the case of the 'State of Bihar V5. Bansi Ram Modi and others' reported in (1985) 3 S.C.C. 643 , the Apex Court while considering the objects of the Forest Conservation Act, 1980, has held as under:- 'In order to appreciate the contentions of the parties on the limited question before us, it is necessary to ascertain the object of the Act. As its Statement of Objects and Reasons indicates, the Act was passed with a view to checking deforestation which had been taking place in the country on a large scale and which had caused ecological imbalance and thus led to environmental deterioration. It is well known that breaking up of the soil or the clearing of the forest land affects seriously reafforestation or regeneration of forests and therefore such breaking up of the soil can only be permitted after taking into consideration all aspects of the question such as the overall advantages and disadvantages to the economy of the country, environmental conditions, ecological imbalance that is likely to occur, its effects on the flora and the fauna in the area etc. The Act having stated in Section 2 thereof that no de-reservation of forests or use of forest land for non-forest purposes can be permitted without the previous approval of the Central Government has further provided for the constitution of an Advisory Committee to advise the Central Government on all cases in which the question of granting permission required by Section 2 of the Act arises. The Act is intended to serve a laudable purpose and it has got to be enforced strictly for the benefit of the general public. The Act applies not merely to cases of mining leases granted in respect of areas within the reserved forests but to all cases where forest land is sought to be used for non-forest purposes." 23. Undisputedly by the Constitution of India (Forty-second Amendment) Act, 1976 the subject 'Forest' appearing in Entry 19 of the State List has been omitted and transferred to the Concurrent List and thereafter, Forest Conservation Act, 1980 was enacted by the Parliament. 24. As noticed above, the main object and purpose of the Act is reservation and conservation of forest and maintenance of environmental and ecological balance. The Bihar Saw Mills (Regulation) Act, 1990 has also been enacted by the State Legislature to make provision for regulating, in the public interest, the establishment and operation of saw mills and saw pits for the protection and conservation of forest and the environment. The aim and object of both the Acts are the same and two legislations cover the same subject matter. In such a situation the doctrine of pith and substance will apply so as to attract the provisions of Article 254 of the Constitution. This theory has been elaborately dealt with in the case of the 'Vijay Kumar Sharma and others vs. State of Karnataka and others' reported in AIR, 1990, S.C. 2072. The Apex Court, after considering the earlier decision, held as under:- "The aforesaid review of the authorities makes it clear that whenever repugnancy between, the State and Central Legislation is alleged what has to be first examined is whether the two legislations cover or relate to the same subject matter. The test for determining the same is the usual one, namely, to find out the dominant intention of the two legislations. If the dominant intention, i.e. the pith and substance of the legislations is different, they cover different subject matters. If the subject matters covered by the legislations are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field. The legislation, to be on the same subject matter must further cover the entire field covered by the other. If the subject matters covered by the legislations are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field. The legislation, to be on the same subject matter must further cover the entire field covered by the other. A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). Both the legislations must be substantially on the same subject to attract the Article." 25. In the light of the settled proposition of law laid down by the Supreme Court, I am of the view that there is repugnancy in the proviso to Section 5 of the Bihar Saw Mills (Regulation) Act, 1990 and the Forest Conservation Act, 1980. The proviso to Section 5 of the said Act entitles a person to establish and operate a saw mill which is an activity for nonforest purposes even without having a valid licence after expiry of 30 days from the date of making such application for the grant of licence. The establishment of saw mill and operating it by sawing trees as a deemed licensee under the aforesaid proviso amounts to giving licence to a person to use the forest for non-forest purposes without complying the requirements of law. In my opinion proviso to main section regarding deemed licensee is separable from the valid part of section 5 and even without the proviso to the main section it shall be a valid piece of legislation. The main part of this section 5 regarding grant of license is separate from the proviso and if the proviso to section 5 is expunged or struck down then the main section can be enforced with full force. Prima facie I am of the opinion that the proviso to section 5 regarding deemed licensee is totally in conflict with the provisions of the Forest Conservation Act and, therefore, to that extent i.e. proviso to section 5 regarding deemed licensee is liable to be struck down as void. 26. Prima facie I am of the opinion that the proviso to section 5 regarding deemed licensee is totally in conflict with the provisions of the Forest Conservation Act and, therefore, to that extent i.e. proviso to section 5 regarding deemed licensee is liable to be struck down as void. 26. Besides above the proviso to Section 5 of the Regulation Act, 1990 in my considered opinion is against the public policy. If the proviso to Section 5 is allowed to stand it would give much scope to the mischiever to use the forest land for non-forest purposes by carrying on sawing activities of forest products immediately by filing an application for grant of licence awaiting expiry of thirty days therefrom. Proviso to Section 5 ought to have been for deemed rejection of the application for grant of licence after the expiry of thirty days instead of deemed permission to operate saw mill to use forest land for nonforest purposes in the garb of an application for the grant of licence. Proviso to Section 5, in my opinion, is also against the public policy which is liable to be struck down. 27. Coming to the instant case it appears that the petitioner immediately after the expiry of thirty days from the date of filing of application for grant of licence of saw mill started operating saw mill and a raid was conducted and huge quantity of illegally procured wood was found in the premises of the appellant. The learned single Judge therefore rightly held that the appellant started operating saw mills and having failed to comply the requirements of law his application of grant of licence was rejected. I therefore, do not find any reason to interfere with the order passed by the learned single Judge affirming the order passed by the appellate authority. 28. For the reason aforesaid, I firstly hold that proviso to section 5 of the Bihar Saw Mills (Regulation) Act, 1990 is void and against the public policy and therefore liable to be struck down. I further hold that the impugned judgment passed by the learned single judge is in accordance with law. This appeal is accordingly disposed of. 29. 28. For the reason aforesaid, I firstly hold that proviso to section 5 of the Bihar Saw Mills (Regulation) Act, 1990 is void and against the public policy and therefore liable to be struck down. I further hold that the impugned judgment passed by the learned single judge is in accordance with law. This appeal is accordingly disposed of. 29. The Registrar-General of this Court is directed to send a copy of this judgment forthwith to the Secretary, Forest Department, Government of Jharkhand and the Principal Chief Conservator of Forest, Jharkhand to enable them to circulate it to the licensing authority in all the Districts so that operation of Saw Mill and Saw Pit by any person without having any licence or on the basis of "deemed licensee" be stopped. H. S. Prasad, J.-I agree.