(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 power such rules may
(a) prescribe the routes by which alone timber or other forest-produce may be imported, exported or moved into, from or within 14[the State];
(b) prohibit the import or export or moving of such timber or other produce without a pass from an officer duly authorized to issue the same, or otherwise than in accordance with the conditions of such pass.
(c) provide for the issue, production and return of such passes and for the payment of fees therefore;
(d) provide for the stoppage, reporting, examination and marking of timber or other forest-produce in transit, in respect of which there is reason to believe that any money is payable to the Government on account of the price thereof, or on account of any duty, fee, royalty or charge due thereon, or, to which it is desirable for the purposes of this Act to affix a mark;
(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) prohibit the closing up or obstructing of the channel or banks of any river used for the transit of timber or other forest-produce, and the throwing of grass, brushwood, branches or leaves into any such river or any act which may cause such river to be closed or obstructed;
(g) provide for the prevention or removal of any obstruction of the channel or banks of any such river, and for recovering the cost of such prevention or removal from the person whose acts or negligence necessitated the same;
(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) regulate the use of property marks for timber, and the registration of such marks prescribe the time for which such registration shall hold good; limit the number of such marks that may be registered by any one person, and provide for the levy of fees for such registration.
(3) The State Government may direct that any rule made under this section shi-11 not apply to any specified class of timber or other forest-produce or to any specified local area.
Judgements :
- Supreme Court Judgements
Case: Bhartia and Sons vs State of Bihar - 2001 (3) BLJR 2230
A letter was issued by the Commissioner-cum-secretary of Department of Forest of Bihar which in effect prohibited the transportation of sisam wood from Bihar to any place outside the State. In the letter, a declaration of the legal position was also made that the Bihar Timber and Other Forest Produce Rules 1973 under Section 41 of IFA was framed to regulate the movement of timber within the State. Hence, there was no provision in the Rules for issuing transit permit for transportation outside the State. On the basis of this, the Forest authorities were refusing to issue transit permit for transport of sisam to any place outside the state.
A writ petition was filed challenging the aforesaid order by the petitioner (Bhartia and Sons), which is engaged in running a sawmill. The petitioner bought a certain quantity of sisam wood under a valid permit issued by the Forest Department. The DFO, Muzaffarpur refused to either issue transit permit for transporting the timber outside the State or to allow movement of consignment in the absence of permits.
The petitioner contended that the refusal of a permit was violative of Article 301 of Constitution and an infringement of petitioner�s fundamental right guaranteed under Article 19(1)(g). They also contended that there was no legislative sanction for the executive to issue such a prohibitory order.
Judgment:
- 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.
- 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 Section 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.
Case: T.V.Balakrishnan vs State of Tamil Nadu - 1994 (2) SCALE 661, 1995 Supp (4) SCC 236
The petitioners, T V Balakrishnan sought the Madras High Court to declare the Rules have been framed by the State Government under Sections 35 and 36 of the Tamil Nadu Forest Act, 1882 unconstitutional and unenforceable. The legality of the rules were challenged on the following grounds: (i) The Rules were beyond the rule making power u/s 35 and 36 of the Act. (ii) Rules impose an unreasonable restriction on the fundamental under Article 19(i)(g) of the Constitution of India. (iii) Rules obstruct the trade, commerce and intercourse through at the territory of India and as such were violative of Articles 301-304 of the Constitution of India (iv) That the increase in fees for grant of permits could not be justified on the principle of quid pro quo.
Judgement:
- When such statewide rules are made, no obligation rests on the State to show that necessity exists for framing them.
- Rules were only regulatory and did not in any manner infract the right of the petitioners guaranteed under Article 19(1)(g) and Articles 301-304.
- With regard to fee enhancement, State Government was providing sufficient services to the timber merchants at every check-point and as such the principle of quid pro quo was satisfied
SC Judgement:
-Entirely agreed to the judgement of the High Court.
Case: State of Bihar vs Ranchi Timber Traders Association - AIR 1998 Pat 31, 1997 (45) BLJR 1598
1983 State Government of Bihar made rules for establishment of saw pits and establishment and regulation of depots excising powers conferred under sections 41,42 and 76. On the basis of these rules, a public notice was given by the Chief Conservator of Forest, Bihar to the effect that the rules required all owners of Saw-pits and depots to obtain licenses and as a consequence if any saw-pit or depot was found unlicensed, would attract action and penalties under the rules.
High Court has taken the view that regulation of the business of timber and forest produce at Saw-pits and depots, is not covered by either of the three sections above-mentioned.
Judgement:
- Powers conferred u/s 41(1) and 41(2) allows to make rules in order to regulate places for stoppage, reporting, examination and marking of timber or other forest produce.
- Regulating the activity of keeping a saw-pit or a depot is an activity to which the provisions of IFA, 1927 shall be attracted. Thus requiring all saw-pit holders and depot holders to obtain license falls within Section 76(d)[power to make rules to carry out the provisions of IFA] and power to regulate transit by land or water under section 41.
- High Court Judgements
Case: Kasi Prasad Sahu vs State of Orissa
Orissa Timber and Forest Produce Transit Rules, 1958 required permit from authorized forest officials for transit of mahua flowers even though collected from lands of parties. The petitioner Shri Kasi Prasad Sahu was aggrieved by the rules.
Judgment:
- The government has regulatory power to control movement of forest produce even though the produce may not be the property of Government.Also the Rules do not affect the freedom of Profession(article 19(g)) or freedom of trade.
