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High Court Of Madhya Pradesh
J. S. VERMA, B. M. LAL
ITARSI TIMBER MERCHANTS ASSOCN. - Appellant
Versus
STATE - Respondents
M. P. 3629 Of 1985
Decided On : 01/29/1986
The word 'forests' is wide enough to include trees even after they are felled and not merely standing trees within it.
Ordinarily and naturally the expression 'forests' used in Entry 17-A of List III is wide enough to cover the field of legislation pertaining to timber which is a 'forest produce' as well as the preservation and conservation of the forests.
The State Legislature was competent to enact such a law and there is no defect of lack of legislative competence. AIR 1978 Bom. 119 relied on. [Para 6]
An argument not based on unconstitutionality of an enactment but unwisdom of legislation is not within the narrow area of judicial review. AIR 1974 SC 497 relied on. [Para 7]
(2) Transit (Forest Produce) Rules, 1961 (M.P.)-R. 27-validity of-is not in excess of the powers given by the Act-Indian Forest Act, 1927 [Para 8]
(3) Kashta Chiran Viniaman) Adhiniyam, 1984 (M.P.)-Ss. 4, 8, 9, 10 & 15-Kastha Chiran (Viniyaman) Niyam, 1984 (M.P.)-R. 3 (6)-constitutionality of-Constitution of India-Art, 14. [Para 9]
Clause (6) of rule 3 lays down certain factors which are all relevant for considering whether the applicant is a fit person to be granted the licence keeping in view the object for which the enactment has been made. These factors relate to the site of the saw-mill, availablity of the wood in the area, connection of the saw-mill or saw pit with illicit felling of the trees in the past and the conviction, if any, of the applicant for any forest of· fence of grave nature. These factors are not only relevant in the context but also provide guide lines to the licensing authority. There is no basis for treating them as arbitrary. [Para 10]
The provisions contained in the 1984 Act and the rules framed thereunder requiring an enquiry with opportunity to the applicant for the licence before deciding the application and reasons to be given for refusal, revocation or suspension of the licence; taking into account all relevant factors of which some are specified for deciding the application; similar provisions relating to confiscation of saw-mill and other property; and provisi0n for appeal in all such matters is sufficient to provide guide lines to the concerned authorities and to check exercise of arbitrary power by any of them. We are satisfied that no ground is made out to attack the constitutional validity of any of these provisions contained in the 1984 Act and the Rules framed thereunder as also rule 27 of the 1961 Rules. [Para 11]
The challenge to the constitutionality of these provisions is not correct. 1985 JLJ 793 & 1986 JLJ 7 relied on. [Para 10]
(4) Constitution of India-Art. 226-alternative remedy-should first be availed of. Where an appeal lies in accordance with the statute and that remedy has not yet been exhausted by the petitioners, there is no occasion to examine the impugned order on merits. [Para 12]
( 1 ) THIS petition is one of the several petitions in which challenge is made to the constitutional validity of provisions of the M. P. Kashtha Chiran (Viniyaman) Adhiniyam, 1984 and the rules framed thereunder. Challenge is also made in some petitions to the validity of R. 27 of the M. P. Transit (Forest Produce ). Rules, 1961. The points urged in all the connected petitions are considered and decided here.
( 2 ) A brief reference may be made at the outset to the relevant statutory provisions in the background of which the questions raised in this batch of petitions have to be considered. The Forest Act, 1927 is an Act to consolidate the law relating to forest, transit of forest produce and the duty leviable on timber and other forest produce. The M. P. Van Upaj (Vyapar Viniyaman) Adhiniyam, 1969 makes provision for regulating in the public interest the trade of certain forest produce by creation of State monopoly in such trade and it applies to the 'specified forest produce' as defined in S. 2 (1) of that Act. All kinds of timber, though forest produce, is not 'specified forest produce' and accordingly timber which is not 'specified forest produce' within the meaning of the 1969 Act is not governed by that Act. The Forest Act, 1927 does not apply to 'specified forest produce' which is governed by the 1969 Act. Section 41 of the 1927 Act contains the rule making power to regulate transit of forest produce and clause (h) of Sub-Sec. (2) therein provides particularly for the rule making power to prohibit absolutely or subject to conditions within specified local limits the establishment of saw-pits, the converting, cutting etc. of timber. Section 42 provides the penalty for breach of rules made under S. 41. Section 76 confers additional rule making power to the State Government and one of the purposes mentioned therein is the preservation, reproduction and disposal of trees and timber. The M. P. Transit (Forest Produce) Rules, 1961 have been framed in exercise of this rule making power under the Forest Act, 1927. Rule 3 regulates transit of forest produce by means of passes. Rule 17 deals with registration of property marks to be attached to timber. Rule 27 which has been challenged in some of the petitions prohibits conversion of timber within specified limits or the establishment of saw-pit for the cutting, converting or fashioning of timber without the previous sanction in writing of the specified forest officer. As earlier stated, the 1969 Act was enacted to provide for 'specified forest produce' which does not cover all kinds of timber. In exercise of the rule making power conferred by S. 21 of the 1969 Act the State Government has made rules known as M. P. Van Upaj (Vyapar Viniyaman) Kashtha Niyam, 1973. Rule 7 therein relates to registration of manufacturers, traders and consumers of specified timber. Sub-rule (4) of R. 7 requires every registered manufacturer, trader and consumer of the specified timber to maintain accounts of specified timber and submit returns to Divisional Forest Officer in the prescribed manner.
( 3 ) IN addition to the above statutory provisions, M. P. Kashtha Chiran (Viniyaman) Adhiniyam, 1984 has been enacted to make provisions for regulating in the public interest the establishment and operation of saw-mills and saw-pits and trade of sawing for the protection and conservation of forests and the environment. This Act has replaced an earlier Ordinance to the same effect and has been applied from 15th Dec. , 1983, the date on which the Ordinance had come into force. It has also received the assent of the President. Sec. 23 provides for the overriding effect of this Act over other laws relating to saw-mills and saw-pits. Section 24 provides for the savings in respect of ordinary operations of carpentry and any saw-mill or saw-pit owned by the State Government. In exercise of the rule making power given by S. 32 of this Act, the State Government has framed the M. P. Kashtha
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