JUDGMENT
Satyeshwar Roy, J.
1. In this batch of eight writ petitions the vires of the Bihar Rules for the Establishment of Saw Pits and Establishment and Regulation of Depots, 1983 (1983 Rules) has been challenged. They have been heard together and are being disposed of by this judgment.
2. On 18th of January 1983, the Governor of Bihar in exercise of the power conferred by Sections 41, 42 and 76 of the Indian Forest Act, 1927 (the Forest Act, framed 1983 Rules). By these rules establishment and running a saw pit or depot without previous obtaining the licence in proper form under 1983 Rules is prohibited. With regard to the detail provisions of 1983 Rules, I will refer the same as and when necessary.
A public notice was given by the Chief Conservator of Forest, Bihar to the effect that in view of 1983 Rules, all owners of sawpits and depots were required to obtain licence by 28-2-1983 and on and from 1-3-1983 if any unlicensed sawpit or depot was found, action would be taken for the same. Divisional Forest Officer of different divisions also gave notice to the owners of sawpits and depots by enclosing copies of 1983 Rules. The petitioners are sawmill owners and timber depot owners.
3. The vires of 1983 Rules was challenged on two grounds:
(i) whether the delegate exceeded its mandate and in the guise of exercising delegated legislative authority, it acted in colourable exercise of powers; and
(ii) if it is found that the delegate was competent in framing the rules nevertheless framed law, which, although within its authority and legislative competence, is vitiated on account of violation of fundamental rights guaranteed under Articles 14, 19 (1) (g) and 301 of the Constitution.
4. The main submissions were made by Sri B. P. Singh, learned Counsel appearing on behalf of the petitioners in CWJC No. 412 of 1983 (R) and Sri Bis-warup Gupta, learned counsel appearing in CWJC No. 373 of 1983 (R) adopted the argument of Mr. Singh and supplemented by his own submission. The learned counsel appearing in other cases adopted the argument of Mr. Singh and Gupta.
5. With regard to point No. (i) it was submitted by Mr. Singh that there was no authorisation under any of the provisions of the Forest Act to the State Government to frame rules impugned in these eases. He submitted that either under Section 41 nor under Section 76 of the Forest Act the delegate wag authorised to frame the rules in question.
Mr. Singh submitted that the pream-ble of the Forest Act will show that it was enacted to consolidate the law relating to the forest, the transit of forest produce and the duty leviable on timber and other forest produce and as 1983 Rules have been framed for neither of the three purposes, it is ultra vires the power of the delegate.
6. To find out whether the subordinate legislative authority acted within its authorisation, it is to be determined what actually is the authorisation and then to decide whether the subordinate legislative complied with that authorisation. The delegate cannot enlarge the object of the Act and cannot give an expanded or different meaning to any word used in that Act. In other words, it shall have to be determined whether the delegate acted within the four corners of the Forest Act and that 1983 Rules are capable of being related to the powers conferred by the Forest Act. It there has been misconstruction of the Forest Act, the rules must be struck down. Mr. Singh and other learned counsel for the petitioners and the learned Additional Advocate General, who appeared for the Respondents, agreed that the first point is to be determined keeping in view these principles.
7. Before the Forest Act was enacted, the law relating to forests in British India contained in the Indian Forest Act, 1878 and its amending Act. The Indian Forest Act, 1927 was, therefore enacted to consolidate the law relating to forests, the transit of forest produce and the duty leviable on timber and other forest produce.
Chapter II of the Forest Act deals with Reserve Forests, Chapter III with village Forests. Chapter IV with protected forests and Chapter V with the control aver the forests and lands not being the property of the Government. Chapter II to Chapter VI, therefore, deal with the first part of (he preamble of the Forest Act. The heading of Chapter VI is of the Duty on the Timber and other Forest Produce. This Chapter, therefore, deals with the third part of the preamble of the Forest Act. The heading of Chapter VII is of the control of timber and other forest produce in transit. This chapter, therefore, deals with the second part of the preamble of the Forest Act and it contains sections 41 to 44. In Chapter VIII, provisions have been made with regard to drift and stranded timber, Chapter IX provides for penalty and procedure, Chapter X makes Cattle-trespass Act, 1871 applicable to Reserve Forests and Protected Forests. Chapter XI provides for Forest Officers and Chapter XII empowers for framing of subsidiary Rules. The Chapter consists of Sections 71 to 78. The heading of Chapter XIII is Miscellaneous.
8. 1983 Rules were framed in purported exercise of the powers conferred by Sections 41, 42 and 76. As noticed earlier, Sections 41 and 42 are in Chapter VII under the heading of Control of Timber and other Forest Produce in transit. The relevant portion of Section 41 referred at Bar is as follows:–
“41. (1) 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.
(2) In particular and without prejudice to the generality of the foregoing powers such rules may —
(a) (b) (c) (d) … … … … … …
(e) provide for the establishment and regulation of depots to which such timber or other 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 it; and the conditions under which such timber or other produce shall be brought to, stored at and removed from such depots;
(f) (g) … … …… … … … …
(h) prohibit absolutely or subject to conditions, within specified local limits, the establishment of sawpits, the converting, cutting, burning, concealing or making of timber, the altering or effacing of any marks on the same, or the possession or carrying of marking hammers or other implements used for marking timber;
(i) … … … … … … … ”
The relevant portion of Section 42 reads as follows:
“(i) The State Government may by such rules prescribe as penalties for the contravention thereof imprisonment for a term which may extend to six months, or fine which may extend to five hundred rupees, or both.”
The relevant portion of Section 76 is as follows:
“76. The State Government may make rules:–
(a) ...... (b) ...... (c) ...... (d) generally, to carry out the provisions of this Act".
9. It was contended by Mr. Singh that the rules under Sections 41 and 42 of the Forest Act can be made with regard to timber and other forest produce in transit by land or water and to that effect rules were framed by the State Government in 1973 known as the Bihar Timber and other Forest Products Transit Regulations Rules, 1973. He urged that even if further rules are framed under Section 41 of the Forest Act, those rules cannot be challenged if by that timber and other forest produce in transit is sought to be regulated. He emphasised that the Rules must be made keeping in view the words ‘in transit’ and if 1983 Rules are not for regulating timber and other forest produce in transit, it cannot be saved with reference to Section 41 of the Forest Act.
The learned Additional Advocate General contended that timber and other forest produce shall be deemed to be in transit till the timber or the forest produce is put to the end-use and according to him, it should be held that the rules are referable to Section 41 of the Forest Act.
10. I will test the validity of 1983 Rules with reference to Section 41 (1) (2) (e) and (h) of the Forest Act as these are relevant provisions. The dictionary meaning of the word “transit” is: going from, convey, being conveyed, over, across or through. In Section 41 of the Forest Act, the word “transit” is preceded by the preposition “in”. The power to frame rules under Section 41 of the Forest Act is therefore, with regard to timber and forest produce which are being conveyed from one place to another. Once that timber or that forest produce ends its journey finally and reaches a depot, an establishments dealing with its sale timber or forest produce cannot be said to be in transit. In the counter-affidavit filed by the Respondents counter-affidavit has been filed only in CWJC No. 188 of 1983 (R) only it has been stated that the timber shall be deemed to be ‘in transit’, so long the timber is not to an end-use, namely finally converting timber through manufacturing or other processes to end use such as door frame, window frame, furniture or similar other uses. It has further been stated that the Rules framed in 1973 were not very much effective for checking illegal transporting and illegal trade in timber and forest produce. To meet those contingencies, it is said, 1983 Rules were framed.
We have already noticed what is meant by the word “in transit”. The contention made on behalf of the Respondents in the counter-affidavit and submitted by the learned Additional Advocate General that till the timber was put to its end-use, shall be deemed to be “in transit” cannot be accepted.
As noticed above, from the counter-affidavit it appears that 1983 Rules were framed to check illegal transporting and illegal trade in timber and forest, produce. So far making rules for checking illegal transporting of Umber and forest produce is concerned, no objection can be taken but the rules must relate to the alleged illegal transporting. Section 41 (2) (e) provides that rules may be framed for establishment and regulation of depots where timber or forest produce in transit may be taken by those in charge of its examinations. The words ‘such timber or forest produce’ in that ckayse mean timber or forest produce in transit and depots mean ‘those depots where timber of forest produce, while in transit, may be taken by those in charge of its examination for the purposes enumerated in that clause’. Depots in this clause do hot refer to the depots where timber or forest produce is ultimately brought for sale. If therefore, the power under Section 41 (2) (e) is sought to be utilized for the depots of the petitioners, the same must he held to be unauthorised,
11. The next provision is Section 4-1
(2) (h) of the Forest Act. This is regard
ing sawpits. In that clause, which has
been quoted hereinabove, the word used
is “sawpits”. The word sawpit has not
been defined in the Forest Act. The or
dinary dictionary meaning, therefore,
shall have to be followed. Sawpit
means a pit in which one sawer stands
while another stands. I, therefore, refer
to sawing by manual labour. In the
ordinary dictionary meaning the word
sawpit does not include sawmill. Saw
mill means where sawing is done by
power driven saw. If, therefore, by 1983
Rules, sawmills are sought to be re
gulated, the same must be held ultra
vires the powers of the delegate.
12. We will, therefore, have to scrutinise 1983 Rules, keeping in view the above findings.
In Rule 2 sawpit means machine operated saws which includes machine operated saws meant to cut, fashion of saw timber or poles Rule 4 provides that no person shall establish, maintain or run a sawpit or depot without previously obtaining a licence in proper form from the Divisional Forest Officer Applications are to be made to the Divisional Forest Officer. On receipt of an application, the Divisional Forest Officer shall either personally or through a subordinate staff make sued enquiries he deems fit and after satisfying himself about the safeguarding timber and poles in any reserved or protected forest, may grant licence for the establishment of sawpit or depot as prayed for in the form of. Schedule A and subject to the conditions set out therein or may refuse to grant the licence. Rule 5 provides that every licence or renewal of the licence under these rules shall, subject to the provisions regarding cancellation, be effective for a period not beyond the 31st day of December next following the date of the issue or renewal. Rule 6 is not material. Rule 7 provides for payment of a fee. Rule 8 empowers a Forest Officer to enter into the premises of any pit or depot and the appurtenances thereof and to inspect the storage-yards, all stored timber including poles, timber, sawn timber and wood wastes and all registers and returns prescribed by the Divisional Forest Officer. Rule 9 provides for a penalty for operating a depot or sawpit without renewing licence. Rule 10 empowers the Divisional Forest Officer to revoke the licence if contravention of the provisions of these rules or the conditions of the licence is found. Rule 11 provides for communicating the order by the Divisional Forest Officer if a licence is not issued or not renewed or revoked. Rule 11 provides for appeal. Rule 13 provides for seizure of all timbers and poles in depot or a sawpit. Rule 14 provides for penalty for contravention of the provisions of the rules or the condition of the licence.
13. From the perusal of the rules it will appear thai establishment, maintenance or running a sawpit or depot without previously obtaining a licence has been made penal. None of these rules relates to timber or forest produce, “in transit”. None of the rules relates to such depots as provided in Section 41 (2) (e). Sawpit defined in 1983 rules does not mean manually operated saw, but means machine operated saw. In the subordinate legislation the meaning of sawpit is not what is meant in the Forest Act. The delegate has exceeded its authorisation by framing rules with regard to saw mills. The rules, therefore, are not referable to any of the provisions o£ Section 41. That being the position, it raust be held that the rules have been framed for purposes not authorised under Section 41 of the Forest Act.” There is no dispute that if the rules cannot be saved under Section 41 of the Forest Act, Section 42 shall have no application.
14. The next question is whether 1983 Rules coul.d have been framed under Section 70 (d), which has been quoted above. Section 76 (d) of the Forest Act was referred by both the parties. Mr. Singh contended that the rules are not referable to that clause and the learned Additional Advocate General contended that it can be. By Section 76 (a) of the Forest Act, the State Government have been empowered to make rules generally to carry out the provisions of the Forest Act. Mr. Singh contended that if 1983 Rules can be said to have been framed to carry out the purpose and object of the Forest Act, they may be sustained. According to him the rules cannot be held to have been made to carry out the purpose and objects i.e., the provisions of the Forest Act. He drew our attention to some portions of the counter-affidavit and the application filed by the respondents for vacating the order of stay-Learned Additional Advocate-General also relied on these averments to base his argument that 1983 Rules were framed to carry out the provisions of the Forest Act. In the counter-affidavit it has been stated by the respondent that 1983 Rules were framed to cheek and control the illegal trade in Umber and to preserve and conserve the Forest. in the application for vacating the stay the respondents stated that there is illegal trade in timber, a large quantity of which is obtained by illegal felling of trees from forest. The petitioners denied the allegation. We are, therefore, to see whether in the Forest Act there is any provision which empowers the State Government to make rules to regulate trade in Umber or forest produce.
15. The scheme of the Forest Act has already been noticed in detail. Whether or not the ground stated on behalf of the Respondents for framing 1983 Rules and good grounds to do away with trade in illegally obtained timber, is not the matter with which we are concerned in these cases. If the power is there under Section 76 (d) of the Forest Act. the rules must be sustained. As noticed above, the State Government in order to check trade in timber illegally obtained, have framed the rules. From the perusal of the policy and the objects of the Forest Act and the provisions made thereunder, in my opinion, none of the sections in the Forest Act empowers the State Government to make rules for regulating the trade in timber. That being the position, 1983 Rules are not referable to Section 76 (d) of the Forest Act.
16. It must, therefore, be held that there was no authorisation either under Section 41 or under Section 76 of the Forest Act to the State Government to frame 1983 Rules and the Rules so framed must be held to be ultra vires the powers of the State Government. 1983 Rules must, therefore, be struck down Point No. (1) must be answered in favour of the petitioners.
17. In view of the above finding, it is not necessary to decide point No. (ii).
18. In the result, all the applications are allowed and ,1983 Rules are struck down. There will be no order as to costs. Abhiram Singh, J. 19. I agree.
