1. By of the Mysore Forest Act 11 of 1900 - Section 37the State Government is authorized to make Rules to regulate the 'transit of ..... forest produce.' In exercise of the powers conferred by section 37 the State Government of Mysore has framed rules to regulate the 'transit of timber, firewood, charcoal and bamboos from all lands'. By rule 2 framed on October 13, 1952, it was provided that no person shall import forest produce into, export forest produce from, or move forest produce within, any of the areas specified in Schedule 'A' (hereinafter referred to as the Scheduled area), unless such forest produce is accompanied by a permit prescribed in rule 3. On April 15, 1959, the State of Mysore issued a notification adding a proviso to rule 2 which read as follows :
'Provided that no such permit shall authorise any person to transport forest produce between sun-set and sun-rise in any of the areas specified in Schedule 'A'.
2. By another notification dated September 14, 1960, the State Government introduced the second proviso to rule 2 which read :
'Provided further that permission may be granted to timber merchants on their requisition to transport timber upon 10 p.m. (22 hours) under the following conditions :-
(i) the party who wishes to avail of the concessions should pay a cash deposit of Rs. 1,000 as security for due compliance with the Timber Transit Rules as in force;
(ii) that the deposit may be forfeited to Government for breach of any of the conditions of the Timber Transit Rules.'
3. The respondent who is a dealer in timber filed a petition under Article 226 of the Constitution for an order quashing the two provisos to rule 2, on the grounds inter alia that the two provisos were beyond the rule-making authority conferred upon the State Government by section 37 of the Mysore Forest Act 11 of 1900, and that in any event the provisos imposed unauthorised restrictions on the freedom of trade, commerce and intercourse. The High Court of Mysore held that by the provisos inserted in rule 2 the State Government had while seeking to regulate the transport of timber 'stopped transport altogether', and in doing so the State Government acted in excess of the powers conferred upon it by section 37 of the Act. The High Court also held that the two provisos were not saved by Article 305 of the Constitution and since the function of the two provisos was not regulatory but prohibitory, they were violative of Article 301 of the Constitution and must be struck down as unconstitutional. With Special Leave granted by this Court, the State of Mysore has appealed to this Court.
4. Section 37(1) of the Mysore Forest Act 11 of 1900 provides :
'The control of all rivers and their banks as regards the floating of timber, as well as the control of all forest produce in transit by land or water, is vested in the State Government which may make rules to regulate the transit of any forest produce.'
5. Sub-section (2) provides :
'Such rules may, among other matters,
(a) ................................... (b) prohibit the import, export, collection, or moving of forest produce without a pass from an officer authorised to issue the same, or otherwise than in accordance with the conditions of such pass;'
6. By rule 2 which is framed in exercise of the power under section 37(2)(b) a person intending to transport forest produce must obtain a pass from an authorised officer. The rule so made is clearly regulatory of the right to transport forest produce. But a restriction is imposed on the right to transport forest produce by the two provisos incorporated in the rule in 1959 and 1960. By the first proviso the holder of a pass is not authorised to transport forest produce between the hours of sun-set and sun-rise in any area specified in Schedule 'A', and by the second proviso it is provided that the restriction imposed by the first proviso may be relaxed between the hours of sun-set and 10 p.m. if the person wishing to avail of the concession makes a cash deposit of Rs. 1,000 as security for due compliance with the 'timber transit rules'. By the terms of the two provisos there is an absolute prohibition against transportation of forest produce between the hours of 10 p.m. and sub-rise, and a qualified prohibition between the hours of sun-set and 10 p.m. If a transporter of forest produce makes a cash deposit of Rs. 1,000 as security, he may be permitted to transport forest produce between the hours of sun-set and 10 P.M.
7. It was contended on behalf of the State that the two provisos were regulatory and not prohibitory. It was urged that every injunction in the form of a prohibition cannot be regarded as a restriction upon the right to transport, and reliance was placed upon the form of clauses (b), (j) and (l) of sub-section (2) of section 37. What is decisive in each case, it was submitted, is not the form of the rule, but the substance thereof, and that the provisos sought merely to regulate transport of forest produce. Clause (b) of section 37(2) prohibits import, export, collection and movement of forest produce without a pass. The prohibition is, it is common ground, regulatory of the right to transport forest produce. Under clause (j) rules may be made imposing prohibition against the closing up or obstruction of the channel, or banks of any river used for the transport of forest produce, and under clause (l) rules may be made prohibiting absolutely or subject to conditions, the establishment of sawpits, or saw mills or any other sawing contrivance. But clauses (j) and (l) do not operate to prohibit or restrict the transport of any forest produce.
8. Power to impose restrictions of the nature contemplated by the two provisos to rule 2 is not to be found in any of the clauses of sub-section (2) of section 37. By sub-section (1) the State Government is invested with the power to regulate transport of forest produce 'in transit by land or water'. The power which the State Government may exercise is however power to regulate transport of forest produce, and not the power to prohibit or restrict transport. Prima facie, a rule which totally prohibits the movement of forest produce during the period between sun-set and sub-rise is prohibitory or restrictive of the right to transport forest produce. A rule regulating transport in its essence permits transport, subject to certain conditions devised to promote transport; such a rule aims at making transport orderly so that it does not harm or endanger other persons following a similar vocation or the public, and enables transport to function for the public good. It was observed by one of us (Subba Rao, J.) in Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan 0065/1962 : 1SCR491 .
9. 'Restrictions obstruct the freedom, whereas regulations promote it. Police regulations, though they may superficially appear to restrict the freedom of movement, in fact provide the necessary conditions for the free movement. Regulations such as provision for lighting, speed, good conditions of vehicles, timings rule of the road and similar others, really facilitate the freedom of movement rather than retard it. So too, licensing system with compensatory fees would not be restrictions but regulatory provisions : for without it, the necessary lines of communications, such as roads, water-ways and air-ways cannot effectively be maintained and the freedom declared may in practice turn out to be an empty one. So too, regulations providing for necessary services to enable the free movement of traffic, whether charged or not, cannot also be described as restrictions impeding the freedom.'
10. It was asserted in the affidavit filed on behalf of the State in reply to the petition that the restriction imposed by the rules on the freedom of citizens to transport timber, fire-wood, charcoal and bamboos is a reasonable restriction and in the public interest i.e. to prevent unauthorised felling of trees and bamboos and smuggling them from the State forest. It was said that checking transport of the forest produce during nights would require enormous increase in the number of checking staff of the Forest Department, that such staff will have to work in two or three shifts every day if they have to check transport of forest produce during nights also, further that such staff will have to be equipped with lanterns and warm clothings if they have to work during nights, that persons who indulge in smuggling of timber find nights more convenient to avoid detection, and that smuggling of forest produce is a serious menace to preservation of forests in the State and safeguarding of the property of the State. Whether or not these are good grounds for imposing restrictions on transport of forest produce is not a matter with which we are concerned in dealing with the power of the State by Rules to restrict the right to transport forest produce. The power conferred upon the State Government is merely 'to regulate the transit' of forest produce and not to restrict it. If the provisos are in truth restrictive of the right to transport the forest produce, however, good the grounds apparently may be for restricting the transport of forest produce, they cannot on that account transform the power conferred by the provisos into a power merely regulatory. The High Court was, therefore, in our view, right in holding that the two provisos to rule 2 are not regulatory in character, but are restrictive.
11. The alternative ground on which the High Court has decided against the State Government must also be sustained. Article 301 provides :
'Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free.'
12. The provisos are undoubtedly restrictive of trade and commerce and on that account would prima facie be void, as derogating from the freedom declared by Article 301. It has been held by this Court in Automobile Transport (Rajasthan) Ltd.'s case 0065/1962 : 1SCR491 , that regulatory measures, which do not hamper trade, commerce and intercourse, but facilitates them, are not hit by Article 301 of the Constitution. But it cannot be said of the two provisos, that they are in any sense regulatory. The plea that Article 301 does not come to the aid of the respondent because of the reservation made in Article 305 has, in our judgment, no substance. Article 305, insofar, as it is material, provides :
'Nothing in articles 301 and 303 shall affect the provisions of any existing law except in so far as the President may by order otherwise direct;'
13. The expression 'existing law' is defined in Article 366(10) as meaning any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of the Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation. Undoubtedly the Forest Act was passed before the Constitution and it was brought into force before that date. Rule 2 (as it stood originally) was promulgated after the Constitution, but that, as already observed, was regulatory of the right to transport forest produce. Section 37 which conferred power to make rules was undoubtedly 'existing law' within the meaning of that expression used in Art. 305, but the rules made in exercise of that power after the Constitution cannot be deemed to be 'existing law'. The mere fact that there was authority in the State under a pre-Constitution Act to make rules which may impose restrictions on trade, commerce and intercourse, but which was not exercised, will not make the rule made in exercise of the authority after the Constitution 'existing law' within the meaning of the Constitution. This Court in Kalvani Stores v. The State of Orissa : 1SCR865 held that a notification issued after the Constitution imposing additional duty under the power reserved under section 90 read with section 27 of the Bihar and Orissa Act, 1915, was not existing law within the meaning of Article 305 of the Constitution read with Article 366(10) and the notification was invalid unless it complied with the requirements of Articles 302, 303 or 304 of the Constitution. It was held by a majority of the Court that 'existing law within the meaning was therefore the provision contained in section 27 of the Bihar and Orissa Act 2 of 1915 authorising the State Government to issue a notification imposing a duty at the rate fixed thereby, and the notification issued pursuant thereto before the Constitution'. The decision of the Orissa High Court in Kasi Prasad v. State of Orissa : AIR1963Ori24 , in which it was held that rules framed in 1958 after the coming into force of the Constitution in exercise of the power conferred by Section 41 of the Orissa Forest Act, 1927, were 'existing law,' and on that account not open to challenge because of Article 305 of the Constitution, even though they violated the guarantee under Article 301, cannot be regarded as correct.
14. Article 304 which is an exception to Article 301 has no application to this case, because that Article saves certain laws from the operation of Article 301, if the law is passed by the Legislature of a State. The provisos to rule 2 are not made by the Legislature of the State; they are made by the Executive Government in exercise of delegated authority. The rules have the force of law, but when made did not become part of the Act : (see section 77 of the Mysore Forest Act). Again Article 304(b) exempts from the operation of Article 301 reasonable restriction on the freedom of trade, commerce and intercourse with or within the State as may be required in the public interest. There is no evidence of an enquiry made by the State before the provisos were framed, and no case is made out that they are reasonable restrictions on the freedom of trade, commerce and intercourse imposed in the public interest. Article 301 in terms prohibits the imposition of any restriction on trade, commerce and intercourse throughout the territory of India, and by the enactment of the two provisos clearly a restriction is imposed upon the freedom of trade. The provisos to the rule enacted by the State Government must therefore be deemed to be invalid as infringing the guarantee under Article 301 on the freedom of trade, commerce and intercourse.
15. The appeal fails and is dismissed with costs.
16. Appeal dismissed.