1. By this petition under Articles 226 and 227 of the Constitution the petitioner seeks to assail the vires of the Regulation No. 4660 published in the Madhya Pradesh Raj Patra Part IV-Ga dated 23-6-1961. The impugned rules are made by the State Government in pursuance of its powers under Section 41 of the Indian Forest Act.
2. The material circumstances Riving rise In the present petition are as follows:--
The petitioner is the proprietor of a sawmill situated on the Nagpur road in Jabalpurwhere he carries on business of sawing timberin rafters etc. The petitioner is a forest contractor and has taken Government forest on leasein 5 Forest Divisions-South and North-Mandla-Divisions, Chhindwara Division, Sagar Division, and Seoul Division. Accordingto him he extracts timber from the aforesaidForest Divisions which pertain to his contractin the shape of logs bearing hammer-markassigned to them by the Forest Officers. Thetimber is moved out of the Forest and is checked by the Forest Guards at the Check Postsand checking receipts are issued in the prescribed forms in duplicate one of which is retainedby the Forest Officer while its counter-foil isgiven to the petitioner's servant or agent whoin in-charge of the vehicle making transportation. Even while bringing the goods within theprecincis of the Jabalpur City there are 5 different various Nakas where again the goodsbrought in are checked. The goods thereafterare brought in the saw mill belonging to thepetitioner and are made into planks, rafters etc.As a result of this operation the identity of thegoods is lost by reason of the separation of thehammer-mark from the various pianks andrafters into which it is cut. The petitioner thereafter has to send these planks, rafters etc. to places both within the State of Madhya Pradesh and outside according to the availability of a suitable market and in many cases this is to be done by railway. In pursuance of this business of his, it is said, the petitioner applied for regulation of indent for transporting one wagon of such sawn timber from the Madanmahal Station of the Central Railway for New Delhi but the goods-clerk in-charge refused to accept the same without a Transit-pass in pursuance of the order of the Divisional Superintendent Central Railway.
The transit pass aforesaid has reference, according to the petitioner, to the pass ordered to be issued under Regulation--No. 4660 published in, the Madhya Pradesh Raj Patra Part IV-Ga dated 23-6-1961 at page 436. The aforesaid regulation consists of rules made by the State Government in pursuance of their power under Section 41 of the Forest Act. It is contended that these rules, having been made subsequent to the promulgation of the Constitution, are violative of Articles 301 to 304 of the Constitution as the same constitute a post-constitutional law which has the effect of preventing free trade or commerce contrary to the requirement of Article 301 of the Constitution. It is submitted that although the 'Forest' is included in the Concurrent List any Legislation pertaining to that subject could only be made with the previous permission of the President and that what cannot be done directly could not have been done indirectly by recourse to the rule-making power.
It is further contended that the rules aforesaid have the effect of forging unreasonable restrictions on the right of the petitioner to acquire and dispose of property guaranteed under Article 19(1)(f) of the Constitution inasmuch as there are no reasonable criteria under the rules nor any standard for the grant or refusal of the transit-passes and no method of enquiry is prescribed nor is any provision made for hearing the petitioner. The officer authorised to issue transit-pass, it is said, is invested with arbitrary powers in that respect. It is also contended that the rules purporting to have been framed under Section 41 of the Forest Act go beyond the scope of that Section of the Act. On these grounds it is prayed that an appropriate writ or direction might be issued quashing the aforesaid rules and Regulation No. 4660 dated 23-6-1961, referred to above, as being ultra vires the power of the State Government. In the alternative it is prayed that at least relevant provisions of these rules, which might be held to be vitiated by reason of the aforesaid constitutional provision, might be declared as being beyond the rule-making power of the State Government.
3. In the return submitted on behalf of the State it is contended that the regulation consisting of the rules framed under Section 41 of the Forest Act referred to in the petition are within the rule-making power of the State Government under Section 41 of the Forest Act and does not any way contravene the provisions of Articles 301 to 304 or Article 19(1)(f) of the Constitution.
4. It is contended that the restrictions imposed as a result of the rules in question are reasonable and in public interest for safeguarding the Government property and public revenue. There is absolutely no restriction on the petitioner's right to carry on his trade. It is further contended that the rules in question in no way contravene Articles 301 to 304 of the Constitution.
5. In view of these respective contentions of the parties the principal question to be considered is whether the rules framed by the State Government subsequent to the promulgation of the Constitution contravened either Article 19(1) (f) or (g) of the Constitution or Articles 301-304 thereof.
6. It cannot be disputed that in case the rules in question contravene either Article 19(1) (f) or (g) of the Constitution they would be invalid. For considering this question the main point that will have to be considered is whether the rules in question, so far as they control and regulate transit of forest produce, create reasonable restriction in public interest or otherwise.
7. In Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118, it was held that a law or order, which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities, cannot but be held as imposing unreasonable restrictions in the freedom of trade guaranteed under Article 19(1)(g) of the Constitution. It was pointed out that the phrase 'reasonable restriction' connotes that the limitation imposed upon a person in enjoyment of a right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public and that the legislation, which arbitrarily or excessively invades the right, cannot be said to contain the quality of reasonableness and further that unless it strikes a proper balance between the freedom guaranteed under Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in reasonableness.
Principle thus enunciated by their Lordships WHS applied by them in a later decision reported in Messrs. Dwarka Prasad v. State of U.P. AIR 1054 SC 224, In that case question arose regarding the validity of Clause 4 (3) of the Uttar Pradesh Coal Control Cyder, 1953. Under the aforesaid Order Clause 3 (1) of it required a licence for stocking, selling, storing for sale or utilising coal Clause (2) of Section 3 authorised to exempt any person from the licening provision. Then Clause 4 (3) authorised the Licensing Authority to grant, refuse to grant renew or refuse to renew, revoke or modify any licence for reasons to be recorded. Dealing with Clause 3(2) (b) and Clause 4(3) their Lordships observed with reference to the former that the Control Order nowhere indicated what the grounds for exemption were nor had any rule been framed on that point and that an unrestricted power had been given to the State Controller to make exemptions and even if he acted arbitrarily there was no check over it and no way for obtaining redress. With reference to the latter it was observed that the Licensing Authority had been given absolute power to grant or refuse to grant, renew, cancel or modify any licence and the only thing he had to do was to record reasons for the action he took. No rules had been framed, it was observed, and no directions had been given to regulate or guide the Licensing Officer and that consequently the said Clauses namely Clause 3(2) (b) and Clause 4 (3) of the U.P. Coal Control Order, 1953, ought to be held to be void as imposing an unreasonable restriction upon the freedom of trade and business guaranteed under Article 19(1)(g) of the Constitution and not coming within the protection afforded by Clause (6) of it.
In a later decision reported in the same volume in Harishankar Bagla v M.P. State AIR 1954 SC 465 the legality of Clause 3 of the Cotton Textiles (Control and Movement) Order, 1948, came up for consideration. The said Order had been issued in pursuance of the powers vested in the Central Government under Clauses 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946. The impugned Clause of the Cotton Textiles (Control of Movement) Order, 1948, provided that no person shall transport or cause to be transported by rail, road, air, sea or inland navigation any cloth, yarn or apparel except under and in accordance with a general permit notified in the Gazette of India by the Textile Commissioner. It was contended that the Textile Commissioner had been given arbitrary and unrestricted power of granting or refusing to grant permits and consequently contravened the freedom guaranteed under Article 19(1)(g) of the Constitution by imposing unreasonable restrictions The Supreme Court held that the restriction imposed by the said order was valid. Their Lordships distinguishing that case from the case of ATR 1954 SC 224 observed:
''In the present Control Order there is no such provision as existed in the U.P. Coal Control Order. Provisions of that Control Order bear no analogy to the provisions of the present Control Order. The policy underlying the Order is to regulate the transport of cotton textile in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all. The grant or refusal of a permit is thus to be governed by this policy and the discretion given to the textile Commissioner is to be exercised in such a way as to effectuate this policy. The conferment of such a discretion cannot be called invalid and if there is an abuse of the power there is ample power in the Courts to undo the mischief. Presumably, as appears from the different forms published in the Manual, there are directions and rules laid down by the Central Government for the grant or refusal of permits'
Their Lordships further pointed out that in that case the person seeking to assail the validity of the impugned provision had never applied for a permit and had made no effort to obtain any. They observed that if the permit had been applied for and refused arbitrarily the parson applying might have had the right to attack the Law on the ground that it vested arbitrary and unrestricted power in the Textile Commissioner. In the absence of any attempt to secure permit it could not be said that he was injured by any act of the Textile Commissioner and that the only way he could get any relief is by attacking the provision which obliged him to take the permit before he could transfer by rail a commodity which was declared as essential. It is thus clear from this decision that where the grant or refusal of a permit is to be governed by the policy clearly enunciated in the legislation and a discretionary power is given to an authority named therein to act in a way so as to effectuate that policy then it could not be said that the enforcement of such discretionary power creates unreasonable restrictions in the freedom guaranteed under Article 19(1)(g) of the Constitution
8. In a recent decision of the Supreme Court in Jyoti Pershad v Administrator Union Territory of Delhi AIR 1951 SC 1602 their Lordships, after referring to the case of AIR 1954 SC 465 observed at page 1609:--,
'Such guidance may thus be obtained from or afforded by (a) the preamble read in the light of the surrounding circumstances which necessitated the legislation, taken in conjunction with well-known facts of which the Court might take judicial notice or of which it is appraised by evidence before it in the form of affidavits, Kathi Raning Rawat v. State of Saurashtra, 1952 SCR 435 : AIR 1962 SC 123 being an instance where the guidance was gathered in the manner above indicated, (b) or even from the policy and purpose of the enactment which may be gathered from other operative provisions applicable to analogous or comparable situation or generally from the object sought to be achieved by the enactment.'
9. Bearing in mind the principle thus enunciated by their Lordships we shall presently consider the material provisions of the Act and the Rules in question.
9a. The preamble of the Act is as follows :-
'Whereas it is expedient to consolidate the law relating to forests, the transit of forest-produce and the duty leviable on timber and other forest-produce; it is hereby enacted '
10. Chapter II of the Act deals with reserved forests, power of the State Government to reserve forests, to issue notification for the purpose, extinction of rights of private individuals subject to certain conditions, acquisition of land over which right is claimed by any person if found proper etc. Section 26 contained in this Chapter provides for prohibition of acts by any person in the forests thus reserved including clearing prohibited by Section 5, trees, damage by negligence or otherwise felling any tree or cutting or dragging any timber, burning charcoal etc.
11. Chapter III deals with village forests and empowers the State Government to assign to any village community the rights of Government to or over any land which has been constituted a reserved forest and further empowers to make rules for regulating management of such forests.
12. Chapter IV provides for what are called protected forests and the State Govern-mint is empowered to constitute any land other than reserved forests as protected forests and the Government is further empowered to make rules to regulate cutting, sawing, conversion or removal of trees etc. Penalties are prescribed for acting in contravention of the prohibitions contained in the earlier part of the Act.
13. Chapter V empowers the State Government to regulate or prohibit in any forest land which is not the property of the Government bringing up or clearing of land for cultivation, firing or clearing of vegetables when this appears necessary for some special purposes such as for protection against storms, winds, rolling stones, floods etc. or for soil preservation for maintenance of water supply in springs and for protection of roads, bridges etc. It also empowers it to assume the management of such forests at the request of the owner
14. Chapter VI deals with imposition of duty on timber and other forest-produce by the Central Government whether it is produced within the territories to which the Act extends or is brought from outside
15. Chapter VII provides for control of timber and other forest-produce in transit.
16. Section 41 of the Act contained in this Chapter provides for control of all river and river banks as regards floating timber as well as control of all timber and forest-produce in transit by land or water, as being vested in the State Government and it empowers the State Government to make rules to regulate the transit of all timber and forest-produce. It particularly, but without prejudice to the general power as above, empowers it to make rules for prohibition of export, import or moving of timber etc without pass from a duly authorised officer and for providing for the issue, production and return of such passes and for taking other measures indicated in the Section to carry out various purposes mentioned there. Provision is also made for penalties for breach of these rules.
17. Chapter VIII deals with collection of drift and stranded timber. Section 45(1) provides for a special rule of evidence that all wood or timber bearing marks which are not registered in accordance with the rules made under Section 41 or on which the marks are obliterated, altered or defaced by fire or otherwise and in certain specified areas all unmarked wood or timber shall be deemed to be the property of the Government unless and until any person establishes his right and title thereto.
18. Material part of Rules 3 and 4 of Rules framed by the State of Madhya Pradesh under Section 41 of the Act, the legality of which is impugned, are as follows: -
'No forest produce shall be moved into or from or within the State of Madhya Pradesh except as hereinafter provided without a transit pass in form annexed to these rules from an officer of the Forest Department or a person duly authorised by or under these rules to issue such pass or otherwise than in accordance with the conditions of such pass or by any route or to any destination other than the route or destination specified in such pass: ...........'
'(1) The following officers and persons shall have power to issue passes under rules:
(a) for forest produce belonging to Government or not owned by any person; the Conservator of Forests, the Divisional Forest Officer,the Sub-Divisional Forest Officer or anyother officer authorised in this behalf inwriting by the Conservator of Forests, Divisional Forest Officer or Sub-Divisional ForestOfficer;
(b) for forest produce owned by any person, such persons or his agent if so authorised in writing by the Divisional Forest Officers Provided that;
(i) any person who desires to obtain a transit pass or authorisation to issue passes under Clause (b) of Sub-rule (1) shall produce evidence to the satisfaction of the officer concerned regarding his claim or ownership of the forest produce for the movement of which a transit pass is required;
(ii) such authorisation shall specify the period during which it shall remain in force; and
(iii) any authorisation may at any time be cancelled by the Divisional Forest Officer.
2. The Officer competent to issue transit pass or to authorise any person to issue transit pass may refuse to issue or authorise to issue transit pass.'
19. It is contended that the person desiring to obtain a transit pass is required to produce evidence to the satisfaction of the officer concerned regarding his claim or ownership of the produce for the movement of which transit pass is required in pursuance of the proviso to Rule 4 and by Sub-rule (2) of Rule 4 officer competent to issue transit pass is authorised to refuse or issue such transit pass. There is no method provided in the rules for guiding the officer for his being satisfied about the claim or ownership of the forest produce which the person desiring to obtain transit pass wishes to transport. The satisfaction of the officer concerned is nothing but subjective. There is no provision in the rules for controlling improper refusal on the part of the officer concerned to issue transit pass. No appeal is provided under the rules.
20. This contention, in our opinion, cannot be accepted. In the first place preamble of the Act indicates that the Act is meant to consolidate the law relating to forest produce, the transit thereof and the duty leviable thereon. The forests are categorized as reserved forests, protected forests, village forests and forests owned by others besides the Government With a view to secure protection of forests and forest produce and regulate and control their transit and to prevent illegal destruction, felling, removal by stealth or otherwise powers are vested in the State Government to make rules for their import, export, moving of timber etc. without pass from a duly authorised officer and for production and return of such passes. Difficulties such as are envisaged in the petition are also contemplated namely where there are no marks on Umber due to obliteration of these marks and special rule of evidence is provided that in such cases the burden will be upon the person laying claim to the properly to establish that it is his and he is entitled to deal with it. This special rule of evidence casting the burden of proof upon the person in possession is necessitated by reason of peculiar nature of the property and difficult task of providing for plugging every nook and corner of large tracts of forest lands owned by Government as reserved, protested and village forests and distinguish their produce from that of private individuals holding stock of their own or acquired by them under contracts from Government.
21. The impugned Rules 3 and 4 are meant to effectuate some or all of these objects. The provision contained in Rule 4(1) (b) of the Rules requiring a person or his duly authorised agent to secure and produce a pass as contemplated in the rule is an appropriate way to control or regulate the transit and to prevent undue or unauthorised fellings or removal. The person laying a claim or alleging ownership on any such limber is obviously in a better position to establish such a claim before an official whose duty it is to see the proper enforcement of the rules. The fact that such burden is cast upon a person who is in a better position to discharge if cannot mean that there is unreasonable restriction upon the right to acquire and hold property or to deal with it. The Rules clearly indicate what he has to see. The circumstance that no appeal is provided does not necessarily mean that there is arbitrary and unregulated power in the officer concerned when he is required by law to see materials produced before him in connection with the claim or title, since the object and the policy of law for carrying out and effectuating which he is empowered to act are indicated. In case there is misuse of power confided in him in individual cases contrary to the object and due to improper or illegal motives an aggrieved person is sufficiently protected by the safeguard provided for discriminatory official acts by Article 14 of the Constitution. It may be stated here that the petitioner does not assail the vires of Section 41 of the Indian Forest Ad, No. XVI of 1927.
22. The contention, therefore, that the aforesaid Rules 3 and 4 are contrary to the fundamental right guaranteed under Article 19(1) (f) or (g) of the Constitution due to amplitude of discretionary power vested in the Government Officer concerned is untenable.
23. As Ihe petitioner had not at all applied for a transit pass any question of discriminatory treatment due to actual working of the rule does not arise and he could only have succeeded in case the impugned provision had been ruled out as being in contravention of Article 19(1) (f) or (g) of the Constitution.
24. As regards the second contention based on Article 301 of the Constitution it does not appear in Part III which deals with fundamental rights and consequently the validity of the rules in question will have to be considered in view of Articles 301 and 306 of the Constitution. Under Article 301 it is no doubt provided that trade, commerce and intercourse throughout the territory of India should be free but this is subject to the other provisions in that Part in which the above Article occurs. Article 305 moreover makes matter further clear. It is as follows:
'Nothing in Articles 301 and 308 shall affect the provisions of any existing law except in so far as the President may by order otherwise direct; and nothing in Article 301 shall affect the operation of any law made before the commencement of the Constitution (Fourth Amendment) Act, 1956, in so far as It relates to, or prevent Parliament or the Legislature of a State from making any law relating to, any such matter at is referred to in Sub-clause (ii) of Clause (6) of Article 19.'
25. It is clear from this Article that it has got the effect of saving existing laws which are repugnant to Articles 301 and 303 subject to the direction of the President. It is not suggested that any otherwise direction of the President directing anything to affect the continuance of the existing law--Indian Forest Act, 1927--exists. That law consequently continues as valid. Section 41 of that Act therefore is also valid and good and it confers upon the State Government power to make rules to regulate the transit of the forest produce and in particular authorises the State Government to make rules for issue, production and return of such passes and for payment of fees therefor. The impugned rules, no doubt, are made subsequent to the promulgation of the Constitution but they are in pursuance of the powers vesting in the State Government under the existing law which is valid and good. It is not suggested on behalf of the petitioner that Section 41 of the Indian Forest Act, 1927, is no longer a good law. If that be so it is not open, for the petitioner to contend that the action of the State Government in making rules pursuant to a valid piece of legislation is invalid.
26. In Surajmal Baj v. State of Rajasthan AJR 1954 Raj 260, a question arose regarding the validity of Bye-Laws framed by the Municipality at Jaipur on 15-7-1953 in pursuance of the Jaipur Municipal Act, No. 53 of 1953. It was contended that inasmuch as the Bye-Laws had been made subsequent to the promulgation of the Constitution they were hit by the terms of Article 301 of the Constitution. In answer it was sought to contend that these Bye-laws had been made in pursuance of the powers vested in the Government under Section 77 of the Act No. 53 of 1948 that is a pre-constitutional legislation and are consequently not affected by the provisions of Article 301 by reason of the specific provisions contained in Article 305. It follows from this decision that where a pre-constitutional statutory provision which(Sic) if continued as an existing Law then any rule or Bye-law framed In pursuance of the powers under that valid legislation is not affected by what is contained in Article 301.
27. Similar view is taken in Government of Mysore v. Mahantha Devaru AIR 1951 Mys. 65. In that case the question regarding validity of a Notification dated 31-1-1950 issued in pursuance of the power conferred under Mysore Food Acquisition (Harvest) Order, 1949, was called in question. The said Food Acquisition (Harvest) Order was passed in pursuance of the power under the Defence of India Act and the Rules made thereunder. This Defence of India Act as well as the Rules made thereunder were continued by the Miscellaneous Provisions Act, No. 20 of 1947, and they formed what is termed as existing law as provided by Article 372(1) of the Constitution. It was contended that though the rules under the Defence of India Act had been continued as the existing law no power was reserved in the State Government under the said Rules to pass orders for regulating or prohibiting the storage, distribution and disposal of the foodgrains as was sought to be done by the new notification. It was held that so long as the Defence of India Rules continue unabrogated the powers vested in the State Government under those Rules could he exercised to issue orders for the purpose of maintaining supplies and services essential to the life of the community. Consequently it was said that the amendment to the Harvest Order did not constitute a new Law requiring the previous permission of the President contemplated under Article 301 of the Constitution.
28. These decisions, in our opinion, fully support the view expressed above. This part of the contention therefore cannot he accepted.
29. For these reasons the petition is without force and is dismissed with costs. Counsel's fee shall be taxed at Rs. 50/-.