1. In these writ petitions, petitioners seek for a declaration that Rules 1-A, 3(b), 2, 3(iii) and 8(4) of the Tamil Nadu Timber Transit Rules, 1968 (hereinafter referred to as the Rules) are null, void and hence unenforceable against the petitioners. The relevant rules under challenge are Rules Nos. l-A (3)(b), 2, 3(iii), and 7(4). Though at the time of the filing of the writ petitions, these are the relevant rules, petitioners by misconception have referred to different rule numbers, as if they are the relevant rules. It was by G.O.Ms.No. 518, Agriculture, dated 23.2.1968, and as amended from time to time, Tamil Nadu Timber Transit Rules were made, in exercise of the powers conferred under Sections 35 and 36 of the Tamil Nadu Forest Act, 1882 (III of 1882) a pro-Constitution enactment. The said Act was enacted 'for the protection and management of forests' in the State of Tamil Nadu. Apart from this Act, Tamil Nadu Preservation of Private Forests Act, 1949, Tamil Nadu Hill Stations (Preservation of Trees) Act, 1955, Gudalur Jenmam Estates (Abolition and Conversation into Ryotwari) Act, 1969, etc have been enacted for the preservation of trees and in the larger interests of the State. Respondents state that, in the earlier stages, Timber Transit Rules were promulgated on district basis and that it was only in 1968, for the first time, consolidated rules were made applicable to the whole State of Tamil Nadu. Subsequent to 1968, two amendments brought about in G.O.Ms.Nos. 1409, F.&F.;, dated 30.10.1980 and G.O.Ms.No. 971 F.&F.;, dated 11.8.1983, are relevant for the purposes of these petitions.
2. By G.O.Ms.No. 1409, Rules 1(3)(b) and 8 were amended to the following effect:
In the said Rules, -
1. in Rule 1, in Clause (3), for Sub-clause (b), the following sub-clause shall be substituted, namely:
(b) timber cut up or fashioned as manufactured articles. 2. in Rule 8, after Sub-rule (3), the following sub-rule shall be added, namely:(4) After the application for the removal of timber is received, the District Forest Officer or the District Range Officer concerned shall, as soon as possible, inspect and, if the timber stored qualifies for issue of transport permit, affix the departmental hammer mark on the timber.
By G.O.Ms.No. 971, the following amendments were made:
In the said Rules,
(1) Under the Title of the Rules, the words from 'in Revenue Districts and Forest divisions other than Nilgiris and areas transferred from Travancore Cochin State' shall be deleted and the words 'in Tamil Nadu' shall be added after the word, 'Timber'.
(2) Under Rule 1(2), the words from 'including the Kanyakumari District, the Shencottah taluk of the Tirunelveli district and the territories specified in the second schedule, the Andhra Pradesh and Tamil Nadu' should be deleted.
(3) Under the preamble to these Rules, the words from 'in the Revenue districts and the Forest divisions specified in the Annexure to those rules' shall be deleted and the words 'in the Tamil Nadu' shall be added after the word 'Timber'.
(4) In Sub-rule(3) of Rule 1-A, for Clause (b), the following clause shall be substituted, namely:
(b) All sawn timber where the smallest dimension is less than 5 cm. in thickness and does not exceed 12 decimetres in length; (5) for Rule 2, the following rule shall be substituted, namely:
2. Conditions of transit of Timber: No person shall move timber into or from or within the State by land, water or air unless such timber is accompanied by a permit prescribed therefor under Rule 4:
Provided that where timber is moved within the limits of a Municipality or a Corporation under an invoice given by the Timber Merchants, no permit is necessary for the transport of such timber
(6) in Rule 3,-
(a) Sub-rule (ii) shall be omitted and after Sub-rule (ii) as so omitted, Sub-rules (iii), (iv), (v) and (vi) shall, respectively, be renumbered as Sub-rules (ii), (iii), (iv) and (v).
(b) in Sub-rule (ii) as so renumbered, the word, expression and words 'imported' 'referred to in Sub-rule (ii),' 'and' or 'by any Revenue Officer not below the rank of Revenue Inspector' shall be omitted.
(7) In Rule 4,-
(a) in Sub-rule (b), the words 'or any Revenue Officer not below the rank of Revenue Inspector' shall be omitted
(b) in Sub-rule (c) the words 'or Revenue Officer not below the rank of Revenue Inspector' shall be omitted; and
(c) Sub-rule (c) shall be omitted; and after Sub-rule (c) as so omitted, the Sub-rules (f), (g) and (h) shall, respectively, be renumbered as Sub-rules (c), (f) and (g).
(8) Rule 5 shall be omitted; and after Rule 5 as so omitted, Rules 6,7,8,9,10 and 11 shall respectively, be renumbered as Rules 5,6,7,8,9 and 10.
(9) in Sub-rule (i) of Rule 5 as so renumbered, the words and expression. 'Revenue' and. 'Any Revenue Officer not below the rank of Revenue Inspector' in charge of a firka or 'respectively', wherever it occurs, shall be omitted.
(1) for Rule 6 as so renumbered, the following rule shall be substituted, namely:
6. Situation of checking stations: (i) The checking stations for timber in transit shall be fixed at any place as deemed necessary by the Government and checking of timber in transit shall not be made within the limits of Municipalities and Corporations, except.
(a) in cases in which it is considered necessary to guard against smuggling from unreserved lands into towns; or
(b) in places which afford special facilities for. the regulation of traffic such as the mooting of roads and water ways.
(10) No demand shall be made under those rules for the production of a permit within the limits of Municipalities and Corporations, except at the checking stations.
(11) in Rule 7 as so renumbered,-
(a) the words 'if moved within the areas specified in Schedule B' shall be omitted;
(b) in the Explanation, the following shall be added at the end, namely:
All sawn timber where the smallest dimension is not less than 5 cm. in thickness and does not exceed 12 decimetres in length shall qualify as 'Timber' for fixing with departments. 12. for the Annexure, the following Annexure shall be constituted, namely:
All Revenue Districts in the State.
13. Schedule A,B,C shall be omitted.
3. The impugned rules and they are force as on date, are as follows:
Rule 1-A(3)(b)- 'timber' includes all classes of timber as defined in the Act, except:
(b) All sawn timber where the smallest dimension is less than 5 c.m. in thickness and does not exceed 12 decimetres in length.
Rule 2: Conditions of transit of timber: No person shall move timber into or from or within the State by land, water, or air unless such timber is accompanied by a permit prescribed therefor under Rule 4:
Provided that where timber is moved within the limits of a Municipality or a Corporation under an invoice given by the Timber merchants, no permit is necessary for the transport of such timber.
(G.O.Ms.No. 971, F. & F. dt.11.8.83).
Explanation;- Timber found on, or on the margin of, any public road, whether loaded in carts or other vehicles or
not and timber found in any river or stream whether tied into rafts or not or loaded in boats on coracles or not, and timber found in, or on the margin of, any canal or reservoir, whether-tied into rafts or not, or loaded in boats or coracles or not, shall for the purpose of those rules be deemed to be timber in transit.
Rule 3(ii):In the case of timber, fuel, and bamboos from private lands, markets or depots in the District and in the case of subsequent movement of timber, fuel and bamboos, the permit shall be in the form of cart load or in Form II (lorry Load) as the case may be and shall be in print.
The permit shall, on application, be issued by the Range Officer having jurisdiction on payment of a fee calculated at the rates specified below:
Form of permit Fee.Cart Load Rs. 1.00 each.Form II (Lorry Load) Rs. 10.00 each.No other permit shall be used.
Proviso: 'Provided that Foresters may issue permits for removal of firewood from patta lands subject to the condition that they may issue such permits for not more than two cart loads at a time and not more than ten cart loads in a month in respect of the same individual, on production of Certificate of ownership of his patta land issued by appropriate revenue authority'.
(G.O.Ms.No. 1361, F.&F.; dt.20.11.81 and G.O.Ms.No. 971, F.&F.; Dt.11.8.83.
Rule 7(4): After the application for the removal of timber is received, the Asst. Conservator of Forests or the Ranger concerned shall, as soon as possible, inspect and, if the timber stored qualifies for issue of transport permit, affix the departmental hammer mark on the timber.
4. Consequent to these amendments being effected, petitioners claim in spite of sufficient checks and verifications which could be made under the then existing rules which were reasonable, it had led to unreasonable restrictions imposed on their right to freedom of trade and carry on business. They are unwarranted, uncalled for, unjustified and unnecessary. Already, the timber handled by them bear their registration mark. Rules as framed, are prohibitive than-regulatory,' and therefore, Articles 301 to 304 of the Constitution of India are violated. In implementing the rules, which are inpracticable, innumerable difficulties are experienced and the delay and loss occasioning are the result of unreasonable restrictions imposed upon their right to carry on their trade. The insistence on hammer mark being affixed, at every stage, i.e., till the cut wood reaches the consumer, leads to considerable delay and an additional burden upon the traders. Hence, introduction of this additional stipulation being an unreasonable fetter on their right to trade. Article 19(1)(g) of the Constitution is contravened. The rules, as framed, are beyond the rule-making power of the Legislature under Sections 35 and 36 of the Tamil Nadu Forests Act, 1882, henceforth shortly put as 'Act'. So, saw-mill owners, retail traders in timber, private owners of forests, contractors, persons who are involved in transit of timber etc., are petitioners in this batch of writ petitions. It is claimed that dependant upon the nature of business carried, they are concerned with trading in logs, cut-ups, trees fallen or have been felled, bamboos, firewood, timber slices, sawn timber wood in different forms, etc. By the increase in fees in issue of permits from 10 paise to Rs. 10 there is no quid pro quo to services rendered, and it is unreasonably prohibitive and is intended to boost up the general revenues of the State, and hence illegal. As for forests owned privately, when trees are felled after securing permits as provided under Acts 22/49 and 17/55, and the said Acts having not provided for, any rules to be framed under the Forest Act cannot be made applicable in respect of such trees. Yet another contention taken is that, the word 'subsequent' in Rule 3(ii) is a legacy of the old rule and it was referable to subsequent movement of imported timber, and on the old rule having been deleted, the words 'subsequent movement' cannot acquire a larger meaning, and be read as 'every subsequent movement.' In any event, neither Rule 3(ii) nor Form II can be stretched to mean a permit being obtained for every movement of the sawn timber till the ultimate purchase is made by a consumer.
5. These points are countered by respondent State by claiming that rules have been validly made by virtue of Sections 35 and 36, and that they are not prohibitive in nature but only regulatory, so as to preserve valuable forest wealth and to detect illicit removal of trees. Affixing of property mark, was for identifying the ownership of the timber, whereas the hammer mark is necessary for identifying its legal pronouncement. Wherever a tree, timber or forest produce, as defined under Section 2 of the Act is found, the State has the right to find out whether its removal from the forest,. was covered by valid pass issued under the Act or not. Hence, the process of checks, counter--checks and cross-checks being carried out, till manufactured articles are brought into existence, is necessary to prevent illicit removal of valuable trees from forests owned by State or privately. Hence, affixing of hammer mark in different, stages, depending upon changing circumstances developing from time to time, cannot be termed as an unreasonable restraint on freedom on trade. 'The rules are applicable in respect of trees cut and removed under T.N. Acts 22/49 and 17/55, because they do not deal with the aspect of transit of trees and that the only apposite enactment is the T.N, Forest Act and the Rules framed thereunder. Though under the Act 'timber' as defined, and as admitted by the petitioner, will rope in several categories, for the purpose of Timber Transit Rules, certain categories have been exempted. Though all sawn timber could be covered under the Act, still, after discussions between the Chief Conservator of Forests and the Office Bearers of the Tamil Nadu Timber Merchants and Saw Mill Owners Federation, Madras, on 18.2.1981 and 10.9.1981, on their agreeing for the sizes to be specified, the amendment rules were brought into existence exempting certain sizes for the purposes of the rules. Hence, the rules, as framed, are not beyond the provisions of the Act nor in any manner beyond the rule-making power of the State. Section 35(d) and (k) empower the Government to make the said rules, read with Section 36. As far as private forests and trees which are covered by T.N. Act 17/55 are concerned, the permits issued, are not comprehensive, and hence for transit of such trees, and for proper identification to be made, it is necessary to affix hammer marks and to issue transit passes under the Act. As for increase in fees, even the rate now enforced is nominal, and that, while revising the cubit content of timber involved under each category had been taken into account, and furthermore, the claim that there is no quid pro quo is baseless. On the contention that the subsequent movement referred to in Rule 3(ii) has become redundant consequent to the amendment cannot mean every subsequent movement till the timber reaches the consumer; it is stated that, unless and until manufactured articles name into existence so long as the product bears the character of a tree or timber, as defined under the Act, irrespective of the forms and shapes into which they may not into in different stages, the State has the tight to verify their lawful origin, and hence even in respect of sawn, timber, transported from point to point, a pass under Form 11 can be insisted upon.
6. I, Do Sections 35 and 36 of the Act empower the Government to frame the impugned Rules
Mr. D. Raju, one of the learned Counsel appearing for some of the petitioners, submits that the rules, as framed, are beyond the rule-making authority of the State of Tamil Nadu because under Section 35, rules could be made only confined to certain local limits and not for the entire State. Furthermore, it is obligatory for the State to show that necessity exists for promulgating the rules. The scheme of the Act is referred to, for contending that more than one section exists in the Act to make rules, in contingencies contemplated for different categories, and hence, Sections 35 and 36 will have to be construed strictly. By adverting to the scheme of the enactment it is pointed out that power is given to make the rules only in respect of certain categories mentioned in Chapter III. It is in Chapter V, Sections 35 and 36 are found relating to 'Control of Timber in Transit'. Again relating to royalties, in Chapter VI-B, Section 40-U confers additional powers on the Government to make rules generally to carry out the provisions of the Act. When distinct and separate sections exist for enacting rules, the usual contention that, what are found enumerated are only illustrative and not exhaustive, is not available. The expression 'local limit' assumes great significance in the context of what had been done prior to 1968, and hence, the rules as framed are void.
7. Learned Advocate-General, by referring to Emperor v. Sibnathi Banerji and in turn to S.K. Singh v. Shri V.V. Gixi : 2SCR197 and Om Prakash v. Union of India : AIR1971SC771 submits that, what are found in Sections 35(a) to (1) are only illustrative and not exhaustive, and the generality of the powers conferred under the Act to frame rules, to carry out the provisions; of the Act, being available, Section 35 does not prevent the State from making rules applicable to the entire State. The first sentence in Section 35 being disjunctive, and when the expression 'such rules may among other matters', would be equatable to the usual expression 'without prejudice to the generality of the provisions', anything contained in the later portion is not intended to cut down the operative effect in the preceding portion of the section. As pointed out in Om Prakash v. Union of India : AIR1971SC771 it is a well established proposition of law that where a specific power in conferred without prejudice to the generality of the general powers already specified, the particular power is only illustrative and does not in any manner restrict the general power. Learned Advocate-General laboured to make out how disjunctiveness exists in the first sentence of Section 35. What are enumerated in Clauses (a) to (1) are only illustrative of the matters in respect of which, among other matters, rules could be made for such identifiable categories. The expression 'such rules may among other matters' clears the way for the construction to be put, that Government is empowered to make rules to regulate the transit of timber, as the circumstances may warrant in implementing the provisions of the Act. Section 63 has to be read along with Section 35 in comprehending the extent of powers available to Government to make rules under the Act.
8. Contrasting with what are found in Section 26, it was pleaded that framing rules districtwise is contemplated therein, and if such manner of framing of rules is contemplated under Section 35, then the words would have been used. Petitioners contend that rules need not be districtwise but depending upon the nature of forest produce, the pattern of trade, manner of scrutiny and checks called for dependent on prevailing conditions in a particular area or locality, different rules will have to be framed, as may be found necessary, and therefore, framing of rules treating the whole State as if it is one locality, is illegal. It is on this aspect on behalf of the State, it is submitted that . the expression 'local limits' would be referable only if rules are framed restricted to certain classes of timber, taking into account certain peculiar features. But, if the rules are of general nature applicable to any category of timber, then it is the earlier part of the section which will be applicable, in which event the aspect of necessity has no applicability. In short, it is submitted that the first sentence will have to be read disjunctively, and that the words 'the Government may make rules to regulate the transit of all timber' empowers framing of such rules which could be applied for the whole State, and that it is only when circumstances warrant framing of different types of rules for certain classes of timber alone, then alone the later part being 'or of certain classes of timber as may appear to be necessary', would come into play.
9. When a tree is cut at one end of the State and transported to the other end of the State, it would be anomalous to think of different rules being made applicable, depending upon localities through which it passes, instead of uniform rules to be applied. It is only when necessity exists to limit the applicability of certain rules in respect of certain classes of timber within limited areas, the State is empowered to make such rules, so that it may not be contended that within certain local limits alone differential treatment cannot be applied. Hence, the later portion of this sentence, which envisages a different situation of peculiar nature, cannot be read in the manner done by petitioners as to take away the power of the State to make rules applicable to the entire State. When such statewide rules are made, no obligation rests on the State to show that necessity exists for framing them. Hence, the Tamil Nadu Timber Transit Rules, 1968, have been validly made under Section 35(d) and (k) read with Sections 36 and 63(c).
10. II. Has not Article 19 (1)(g) been contravened by the rules being amended consequent to G.O,Ms.Nos. 1049 and 971
Mr. V.P. Raman, learned Counsel, who has led the other counsel appearing in these petitions, submits, that by amendments effected, the impugned rules had brought about a situation, wherein unreasonable restrictions are imposed, which are avoidable fetters, and which have no norms with the objects to be achieved under the Act. The Act having been passed for the protection and management of forests, after the trees are cut, removed and passed through forest checkposts, by issue of a Form II pass, thereafter, there is no need for any further regulatory measures to be taken in respect of the converted trees and timber. The rules, as they stood prior to the amendments by the said G.Os. sufficiently safeguarded the interests of the State, and to further the objects to be achieved under the Act, they being protection and management of forests. After timber leaves the forest areas, the authorities have no right to insist on any further verification to be made. Appearing on behalf of certain saw-mill owners, he submits that once Form II is exchanged for Form III, and the timber is cut in the saw mills, they lose the characteristics of a forest produce or timber, as defined under the Act. The expression 'subsequent' in Rule 3(ii) is now being misinterpreted to mean every subsequent stage of movement in respect of transferred timber, without understanding the circumstances under which the expression 'subsequent movement' existed earlier to amendment in Rule 3(ii). This part of the rule was referable to imported timber in Rule 3(ii) as it originally stood, and hence, after the first stage of Form II pass gets exhausted while crossing the forest frontiers, again and again for every subsequent movement like from new mill to dealer or from one saw mill to another saw mill etc, the same form II type of passes, cannot be insisted upon. Once timber is sawn into different sizes, they would not fall within the ambit of timber as defined under the Act, and hence, the entirety of the rules cannot be applied to sawn timber. One of the letters of the Department dated 23.4.1980 is referred to for pleading that this is the manner in which the authorities understood the provisions of the Act and the Rules, and hence, the revised procedure now evolved results in harassment and intended for extraneous purposes. When applications are made, long delay ensures resulting in considerable loss to traders. Once registered property mark is affixed, there is no need to affix any hammer mark. When trees are cut under T.N. Acts. 22/49 and 17/55, after careful scrutiny by a Committee which issues the permits, thereafter, any further insistence on securing a Form II pass is unwarranted, uncalled for, unjustified and an unnecessary check on transactions effected by traders. In implementing the rules, which are impractical, trades have experienced humiliation, harassment and suffered monetary loss. Experience hitherto clearly shows the ulterior motive in formulating the rules, which is well within the knowledge of respondents.
11. Timber is got from hill areas, private forests, reserved forests and from outside Tamil Nadu. In respect of the first two areas, under the provisions- of T.N. Acts 17/55 and 22/49, the constituted Committees issue orders for felling trees. These two Acts do not provide for the manner and the conditions under which they could be transported from place to place. 'The Act' deals with timber derived from reserved forests also. When they are sold in auction, a 'pass in form I is issued by the duly authorised Officer for transporting them. When timber is brought from outside, a no-objection certificate is issued. As for timber secured under T.N. Acts 22/49 and 17/55, they will be dealt with separately hereunder. For the present, in respect of timber to be removed under Form I, no grievance is expressed. Even then, as far as saw mills and other traders are concerned it is claimed that after the timber is sawn in a saw mill, they lose the characteristics of timber, as defined in the Act. Furthermore, prior to the amendment of the rules 'timber cut up and fashioned as manufactured articles' being one of the categories exempted, by substitution of Rule 1-A (3)(b), in G.O.Ms.No. 971 F.&F.; dated 11.8.1983, an unworkable situation had been developed, and hence it is claimed that what appears to tie an exemption is a mirage and no more.
12. Petitioners themselves state in their affidavit that timber cut up or fashioned as manufactured articles, timber removed under the concession granted under Rule 7 of the General Rules under Section 26 of the Act, small wood for fuel and bamboos and headloads of smaller quantities and firewood purchased from depots or markets for domestic consumption if transported within the municipal limits, under cover or invoice given by depot keepers are excluded and add by stating that, being an inclusive definition, it ropes in all other timber. Tree, timber and forest produce are defined under Section 2 in the Act, as follows:
Timber includes trees when they have fallen or have been felled, and all wood, whether cut up or fashioned or hollowed out for any purpose or not;'
' 'Tree' includes stumps, bamboos and brushwood;'
' 'Forest Produce' includes the following things when found in, or brought from a Forest (that is to say):minerals (including limestone and laterite), surface soil, trees, timber, plants, grass, peat, canes, creepers, reeds fibres, leaves, moss, flowers, fruits, seeds, roots galls, spices, juice, catechu, bark, catechu gum, wood-oil, rosin, varnish, lac, charcoal, honey and wax's skins, tusks, bones and horns;
Under the rules, 'timber' is defined as hereunder:
(3) 'timber' includes all classes of timber as defined in the Act, except:
(a) timber not grown in India
(b) all sawn timber where the smallest dimension is less than 5 cm. in thickness and does not exceed 12 decimetres in length;
(c) timber removed under the concession granted in Rule 7 of the general rules under Section 26 of the Act,
(d) small wood for fuel and bamboos in head-leads or smaller quantities;
(e) firewood purchased from depots or markets for domestic consumption if transported within the municipal limits under cover of invoice given by depot keepers.
13. This definition shows that, for the purposes of the rules, only restricted categories of timber are taken into account. When all categories mentioned in Section 2 could also be be covered,
and which is an inclusive definition while making rules under Section 35, and the necessary power to that effect having been already found to exist, it is for the petitioners to establish that the State ought to exempt more categories than what it has chosen to exempt. Nowhere it has been held that exempting certain categories tantamounts to an unreasonable restriction within the scope of Article 19. South Gujarat Roofing Tiles v. Gujarat : 1SCR878 is relied upon to counter the claim that an inclusive definition could only invariably mean a wider application, and that the word 'includes' can also be used as one of limitation. In construing the scope of Entry 22 the word 'includes' is generally used as a word of extension, but in Entry 22 it has been used in the sense of 'means', which alone the said word can bear in the context in which it appears. In that view, it was not a word of extension, but limitation. No such peculiar circumstance is brought out to give restrictive meaning to the definitions of Tree, Timber and Forest Produce. Realising this position, the main onslaught is to claim that Form II requirement cannot be insisted, after the timber crosses Forest frontiers.
14. Merely because they cross the forest frontiers they would not cease to be timber till they get transferred into manufactured articles. The definitions of 'saw' and 'fashion' in Oxford dictionary are relied upon. The definitions read as follows;
To cut with a saw
1. A cutting tool consisting of a plate of metal (usually steel) one edge of which is forced into a continuous series of teeth.... In the origional form of the tool represented by the HAND-SAW and in some varieties of more modern invention (e.g.) the pit saw the saw is moved backwards and forwards, each movement in one direction deepening the groove or 'Korf' made in the wood or other material to be cut. In other varieties, as the circular saw and the band saw a continuous movement in one direction
So long as the inclusive definition of timber in the Act is to the effect that, even when wood is cut up or fashioned or hollowed out for any purpose or not, it would be timber, and merely because logs are cut in a saw mill, they would not cease to be timber for the purposes of the Act and the rules. It may assume different forms and shapes, but still, cut up wood so long as it does not partake the character of the categories which are exempted under Rule 1-A, any movement from point to point, calls for verification by the authorities to find out their origin. This is why, under Rule 3(ii) subsequent movements of timber, fuel and bamboo obtained from private lands, markets or depots will have to be covered by a Form II pass. If illicitly procured timber is sawn in saw mills or purchased by timber 'depots, and removed to different places inside the State, it would be impossible for the authorities to trace their illegal origin, unless the rugulatory measures as envisaged in the rules are enforced effectively and dutifully. The expression 'protection and management of forests,' in the context of the definition of timber in Section 2, calls for sustained and continuing regulatory measures to be taken, till the concerned timber becomes a manufactured product. Hence, the requirement of a Form II pass for every movement of timber as prescribed under the rules being imperative in preventing illicit removal of trees, timber and forest produce etc., the alleged violation does not exist.
15. (1) Rights of those covered by T.N. Acts 22/49 and 17/55. On behalf of owners of private forests (Act 22/49) and owners of trees in areas covered by T.N. Act 17/55, it is claimed that after permits are secured from the Committees, and when the logs are numbered before granting such permission and the property mark is also affixed, thereafter it is superfluous is substituted for the reciprocating movement.
To give fashion or shape to form, mould or shape. To give a specified shape to; to model according to, after or like something; to form into the shape of something, to shape into or to something.
to insist on issue of Form II pass and furthermore, in so far as these two enactments are concerned, no nexus exists in insisting on this requirement, to achieve the objects envisaged under the Acts. Mr. S. Sivasubramaniam, learned Counsel, appearing for some of the petitioners, by referring to R.D. Shetty v. International Air-port Authority : (1979)IILLJ217SC pleads that the State will have to eschew arbitrariness in its actions, and while it is expected to act fairly and reasonably, it is imposing conditions which are restraints on free trade and if their main genuine intention is only to identify the origin of timber, the permit issued by the Committee (coupled with log numbers and registered mark of owner are adequate, and that hammer marking is redundant. It is further claimed that in issuing Form II not only considerable delay occasions for obvious reasons. As far as owners of private forests are concerned, they have the right to issue Form II passes and the authorities highhandedly choose to write them, and limit their duration to such a short period that it becomes impossible to remove the timber within the time granted. More than one counsel had pleaded harassment in the hands of authorities, and claimed that more restrictions have been imposed for the monetarily benefit the enforcing authorities rather than in public interest or to preserve the National wealth.
16. When the Committees issue permits under Act 22/49 or Act 17/55, they are only confined to felling of trees and not for removal of trees from the. site where they were cut. Property mark affixed or log numbers put, have limited applicability. They indicate the ownership of the timber. They do not continue to maintain the same form and shape till converted into manufactured articles. There are several intermediary stages in Which they assume different forms and shapes. Hence, when they are being removed and there being no provision made under the said Acts regarding transit of these trees and the only enactment which cold apply being T.N.Act 5/82, their removal will have to be covered by Form II pass at every stage. Therefore, no insuperable or unreasonable demand is made on such owners in enabling them to issue Form II passes.
17. (2) Alleged non-adherence to Rules: Though it was contended that authorities have been adopting a procedure which is not in accord with rules, on behalf of the respondent State, a supplemental-affidavit was filed by the Chief Conservator of Forests on 24.4.1984, stating therein the- procedure followed in issue of Form II passes. In so far as timber, fuel and bamboos removed from private lands are concerned, Form II will be issued only by the owner and not by the authorities. All the entries will have to be filled up, only by the private owner. In the light of such an affidavit filed and the respondent State being bound by the same, there is no area of dispute existing, as to who would issue Form II pass under such circumstances.
18. (3) Time Limit in Rule 4(f) is unreasonable: It is then pleaded that the other unreasonable stipulation is in the issue of forms restricted only to 30 days and for no longer period. Rule 4(f) prescribes that the permit shall be valid not exceeding a period of one month from the date of the issue of the permit. A person who requires Form II to be issued, will have to apply to the Range Officer under Rule 4 (d) strictly in serial order. While the authorities supply printed forms in books, they make an endorsement at the top of the forms indicating the period within which they must be utilised. Petitioners claim that they must be granted at least a year's time to utilise the forms. Prescribing 30 days' time for utilisation, taking note of the nature of transactions involved and the type of trade, it cannot be claimed that any unreasonableness exists in fixing such a time limit under Rule 4(f) for utilisation of the forms. As and when the forms get exhausted or period granted had expired, then they can always secure additional books on showing to the authorities that they have the required stock, for which the forms are required. Some of the petitioners state that, without reference to the stocks on hand, taking note of the respective acquisitions to be made, the books should be issued. There is no substance in such a claim because, without necessary stocks on hand, there is no purpose in issuing sets of forms indiscriminately. Hence, by prescribing 30 days' time or by issuing forms in booklets with serial numbers; or in asking for return of the counterfoils of the permits if any supplied previously, and forms being issued by taking into account the stock position, no unreasonable restriction exists as to hamper the orderly functioning of this trade.
19. (4) Hammer mark under Rule 7(4): Yet another forcible plea raised in pleading unreasonableness relates to the requirement of affixing hammer marks. Mr. V.P. Raman, learned Counsel, contends that, when a Form II is issued and which has to be necessarily accompany the timber in lorries, alongside the registration parks affixed to timber, and having been once checked at the check-post and thereafter a Form III is issued; any further insistence on affixing hammer mark results in additional delay in completing sale transactions. Rules as framed are impracticable and the procedure envisaged cannot lead to or enable the authorities to make any precise verification, with whatever particulars they have noted at the check-posts. Except that it is cumbersene, nothing more; could be its outcome. He submits that the State has failed to satisfactorily explain as to how and in what manner by insisting on hammer marks beings affixed time to time, the so called illicit removals, could be detected. Hammer marks freshly put on sawn timber in saw mills, leads only to artocities being Committed by authorities and not for preserving the Nation's wealth.
20. Respondents stated as follows: 'It is submitted that it is not necessary that the petitioner should approach the departmental officials to get the hammer mark affixed on sawn timber every now and then; but it is enough if they seek for affixing hammer mark for all the sawn timber lying in his depot at given times and when necessary.' It is again stated, 'It is submitted that the marking by affixing departmental hammer mark is necessary for identifying its legal procurement. Property marking is to indicate the ownership of the timber. So both the markings are necessary to regulate the transit of timber properly'.
21. When a Committee grants the permit, the trees are numbered, and thereafter when the logs are cut into bits, the marks so affixed would not be available in all the cut pieces. As for the registered property marks, the same situation develops, when further cut in Saw Mills. Unauthorisedly when the owner affixes the property mark in illicitly cut trees, then at the check-posts, complete verification cannot be achieved, particularly when Form II passes are issued by owners themselves. Affixing of hammer mark, right from the site where the trees are cut, till they are converted into manufactured products, ensures that, only trees which have been permitted to be removed were being utilised in different stages, in different processes. The main intention in amending the rules is to prevent the large scale of illicit felling of trees, which is taking place to the detriment of National wealth. What is to be achieved under Article 48-A of the Constitution of India would be lost, if indiscriminate felling of trees is to take place, and regulatory measures are not meticulously taken at every stage of the movement of forest produce, till they are properly utilised. Rather, of all the marks, it is the hammer marks which assumes considerable importance in preventing illicit felling and removal of trees. On what is stated by the respondents in preceding paragraph, even on sawn timber, hammer marks can be conveniently affixed, so long as the owner' is able to establish that his stocks are covered by valid permits and passes issued as required under law.
22. On behalf of the respondents it is stated that 'on an average a Forest Guard and Forest Watcher are placed in charge of protective work and to carry out the provisions of the Tamil Nadu Forests Act, 1882, over an area of 5 to 7 thousand acres. It is well known that there are several paths, tracks and roads going in and out of the reserved forests and these two subordinates cannot exercise total control or carry out effective protection of the forest under their control nor the State could afford to employ more staff. Consequently, there are opportunities for pilferage, pooaching and smuggling by anti- social elements'. It is further stated that forest defences have considerably increased and illegal exploitation of forest wealth, is ever on the increase. When such is the existing situation regarding control of forest produce, the stipulation for affixing hammer marks at every stage, is a move in the right direction to preserve the wealth of the Nation. Illicit and unauthorised removal of trees, if could be prevented by such and many mere regulatory measures, they could only be understood as aimed at disciplining the trade involved in exploitation of Forest wealth. Merely because such requirements call for maintenance of certain records or marks being affixed from time to time, which may result in such procedural requirements to be adhered to, they can never lead to holding that they are restraints on right to trade or coercion on freedom to carry on business.
23. (5) Registration of Property Mark: Rules 7(1), (2) & (3) and 8: On the requirement of affixing property mark, it is contended that once in a year, they are issued, taking into account the quantity for which certificate had been obtained; and if in the course of the year, the dealer had already sold away the permitted quantity, thereafter he is prevented from carrying on his trade. No factual details in support of this allegation had been placed before the Court. In any event learned Advocate-General had clearly stated that such a thing had not happened, and that Form IV issued under Rule 7, nowhere prevents the concerned dealer to secure registration, from time to time, for quantities which he intends to sell, irrespective of the year for which it had been issued. He states that if a certificate issued for a quantity mentioned in Clause 3 therein is exhausted before 31st March of the concerned year, the dealer can always seek for further registration for such additional quantities for which he seeks a renewal in the same year. Hence, Rules 7(1) to (3) as framed and now in force, in no manner impose any unreasonable restriction on these who have to use property marks.
24. A Plea is raised referring to the difficulties of consumers, to the effect that they cannot readily purchase, unless and until the trader had passed through a cumbersome procedure of no use to any one, and hence they are compelled to pay disproportionately to the real value of timber. Even very small pieces of wood, when bought in a timber depot, unless they bear the hammer mark, and satisfy the other requirements, cannot be readily purchased. Proviso to Rule 2 states that where timber is moved within the limits of a Municipality or a Corporation under invoice given by timber merchants, no permit is necessary for transport of such timber. As for the hammer marks, even when timber pieces leave the saw mills, the marks are affixed. Thereafter when they are sold, no difficulty could be experienced by a consumer, when he buys within Municipal towns or in Corporation areas; and when he moves timber from place to place inside these limits no pass in Form II is required. Therefore, the consumer is not in any way affected by the rules, so long as the movement is restricted within the permitted limits, under the proviso, to Rule 2.
25. Yet another plea is that, every wooden piece has three dimensions and Rule 1-A(3)(b) by providing only for the thickness and the length, had made it unworkable. Respondents would state that when the thickness is furnished, it would mean 5 cm. x 5 cm. x 12 cm. When the Federation itself had agreed on 18.2.1981 and 10.9.1981 in evolving the specification for sizes, and no reply affidavit having been filed repudiating this claim made at page 10 of the counter affidavit in W.P.No. 9558 of 1983, this point is of no assistance to petitioners.
26. Apart from relying on Article 48-A, respondents advert to T.N.Act 29/49 under which timber was declared as an essential article and therefore, the rules, as framed, aim at imposing the necessary restrictions required to prevent illicit trade in timber. This is a relevant factor to be taken note of. That apart, learned Advocate-General by referring to Pathu mm a v. State of Kerala : 2SCR537 would pertinently point out that Courts should take into account the increasing needs of the Nation, the burning problems of the day and the complex issues facing the people which require to be solved,' and that the judicial approach should be dynamic rather than static, pragmatic rather than pedantic and clastic rather than rigid, and if so done, the Court would strike a just balance between the fundamental rights and the larger and broader interests of the Society. In Lax mi Khadsari v. State of U.P. : 3SCR92 , it was held that, when violation of fundamental rights contained in Article 19(1)(g) is complained of, the onus is on the State to prove or justify that the restraints Or restrictions imposed, are reasonable, and as to what are reasonable restrictions would naturally depend on the nature and circumstances of the case, the character of the statute, the object which it seeks to serve, the existing circumstances, the extent of the evil sought to be eradicated as also the nature of the restraint or restriction placed on the rights of the citizen. Restrictions may be partial, incomplete, permanent or temporary but they must bear a close nexus with the objects and the interests for which they are imposed, and they must be in public interest and done for striking a just balance between the deprivation of right and the danger or evil sought to be avoided. A Division Bench of the Allahabad High Court in Mohd. Karrar Ali v. State of U.P. : AIR1954All753 in dealing with the validity of the U.P. Private Forests Protection Act, held that private owners having not been divested of any of their rights in forests, groves or trees, and when the restrictions imposed were to compel them to apply for permits before cutting, collecting and removing timber, which belongs to them and their right to transfer having been left intact, and the nature of restrictions imposed on the exercise of ownership was in the larger public interest, and in turn when indiscriminate cutting down of trees would be controlled, it was held that the provisions of the Act were not unreasonable. A Division Bench of the Madhya Pradesh High Court had occasion to deal with the rules requiring permits for transit of timber framed under Indian Forests Act, and it was held in V.L. Patel and Company v. State of M.P. : AIR1965MP211 that, when the rules as framed are intended to subserve the aims of the Act which was meant to consolidate the law relating to the forest produce, the transit thereof and the duty leviable thereon; and hence those rules were meant to effectuate same or all of these objects. Having noticed the uphill task faced by the Government in preventing illicit felling of trees, over large extents with limited man power, and checking at check-posts at forest frontiers having been found to be insufficient, ineffective and being no match to the swift manner in which they are carried away by lorries; and on raids conducted in places like Mettupalayam, Tambaram and elsewhere large stocks of illicit timber having been found in saw-mills and with dealers, the impugned rules, which insist on a Form II pass to accompany during every movement of timber, and hammer mark being affixed on the transported timber, are absolutely necessary for the protection and management of forest wealth in the State of Tamil Nadu. Hence, the impugned rules are not violative of Article 19(1)(g).
27. III. Is the increase in fees under Rule 3 illegal and invalid? Petitioners claim that the fee now charged, has no relation to the service, if any rendered, and no quid pro quo is involved, and that the Department cannot recoup from the petitioners administrative charges of maintenance of the Department under the guise of license fee, and that general revenues cannot be augmented by increasing the licence fee, and that the onus is upon the State to justify the increase in licence fees. Reference is made to Mica Industries Ltd. v. State of Bihar : AIR1971SC1182 to show that any amount spent for taking preventive actions cannot be collected from citizens, by way of fees. A careful reading of the said decision shows that it was a case in which the State by negligence failed to place the required materials before the High Court, and that resulted in the matter being remanded, giving a fresh opportunity to the State to place the required materials to show that what was collected had a reasonable correlationship of a general character for the service rendered by the Government. In Southern Pharmeceuticals and Chemicals v. State of Kerala : 1SCR519 it was held that the element, of Quid pro quo stricte sense is not always a sine qua non to a fee and that merely because supervisory staff is doubled, for its own protection to prevent leakage of revenue, it cannot be a denying of the fact that in turn the licensee undoubtedly receives the required services. In the counter-affidavit filed in W.P.No. 9558/83 in paragraphs 5 and 6, the relevant factors taken into account have been enumerated. It is seen that even as on date, the rate of 10 paise is retained provided the headload of 25-30 kilograms is carried, valued between Rs. 10 and Rs. 15. When a cart-load of 1/2 tonne to 3/4 tonne valued at Rs. 150 to Rs. 200 is carried, then one rupee is charged, since the quantity carried is ten times the value carried by headload. When a lorry load of an average of 8-10 tonnes is carried valued between Rs. 2400 and Rs. 3000, Rs. 10 is charged. This by itself would suffice to show that the fee charged is extremely nominal, and the increase is in proportion to the value of the quantity removed and the extent of service required in checking them. Apart from this aspect, the rapid change which has occasioned in the mode of transport of timber which calls for mobilising patrolling operations in checking; the increase in price of timber per cubit foot, the increase in cost of supervision, as furnished, goes to show that fixation of fee, as prescribed, is just and reasonable. Rather, they appear to be nominal compared with the value of the goods being removed and the nature of supervision henceforth to be carried out under the impugned rules.
28. IV. Can those rules be made applicable in respect of timber removed under the provisions of T.N. Acts 22/49 and 17/55?
T.N.Act 27/49 was passed to prevent the indiscriminate destruction of private forests and for interfering with customary and prescriptive rights therein and for certain other purposes. T.N, Act 17/55 was enacted for regulating the cutting of trees and the cultivation of lands in hill areas in the State of Tamil Nadu. Under these two enactments, no provision is made regarding transit of trees permitted to be cut, on permission granted by constituted Committees. A careful reading of these enactments goes to show that they deal only with preservation of forests covered by the Acts and regarding constitution of Committees and the powers to be exercised, and as to what penalties could be imposed for contravention of the provisions of the Acts. Section 10 of the Act 27/49, and Section 12 of Act 17/55 which deal with power to make rules by the Government, do not provide for any rules to be framed regarding transit of timber cut under the provisions of the said enactments. Therefore, consequent to permits secured under the said enactments, when timber is cut and removed from the site, they would come within the folds of the definition of timber under T.N. Act 3/1882, read with the Timber Transit Rules.
29. V. Do the impugned rules interfere with the freedom of trade, (sic) and intercourse guaranteed under Article 301?
Petitioners contend that under Article 302 only Parliament can impose restrictions on trade, commerce and intercourse between one State and another or within any part of the territory of India and when Article 304(b) confers power on the State Legislature to make a law imposing reasonable restrictions on freedom of trade, commerce or intercourse without or within the State in public interest, after the previous sanction of the President of India, and, such a condition precedent having not been complied with, and the rules having been made by the executive Government, and not by the State Legislature, they are illegal. Mr. D. Raju, learned Counsel for some of the petitioners, in strenuously advancing this point relied Upon State of Mysore v. H. Sanjeeviah : 2SCR673 wherein it was held that the two provisos to Rule 2 of the Transit Rules framed under Mysore Forest Act are restrictive in nature, and they having not been made by the Legislature of that State, but by the executive Government in exercise of delegated authority, Article 304 being an exception to Article 301, the impugned provisos therein were invalid. By referring to The Dist. Collector of Hyderabad V. Ibrahim and Company : 3SCR498 it is pleaded that the guarantee under Article 301 cannot be taken away by executive action and being subject to certain restrictions specified in Articles 302 to 305, it would be impossible to hold that the State by executive order can do something Which it is incompetent to do by legislation. His endeavour is to show that the State Government being fully aware that it cannot secure the sanction of the President, if the Act is to be amended incorporating those restrictions, had resorted to framing of impugned rules under Sections 35 and 36 of the Act.
30. Learned Advocate-General relying upon Automobile Transport Ltd. v. State of Rajasthan : 1SCR491 advances the proposition that Articles 301 and 304(b) would come into play, only if the rules are restrictive in nature, and if they are regulatory and facilitate trade and commerce then the point, as raised, does not require any consideration. It was held therein that the word 'free' in Article 301. cannot mean freedom to do whatever one wants to do, but if what are prescribed are regulatory in nature, then the said Articles are not violated. It is the reality or substance of the matter that has to be determined and the freedom postulated by Article 301 must be understood in the context of an orderly society recognising the need and the legitimacy of some degree of regulatory control being imposed. Hence, if regulatory measures are ushered in, then they are not hit by the freedom declared by Article 301. In Narendra Kumar and others v. The Union of India and others : 2SCR375 it was held that the test of reasonableness is applied by considering the question in the background of the facts and circumstances under which the rules were made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, the beneficial act reasonably expected to result to the general public and whether the restraint caused by the law was more than was necessary in the interests of the general public. In Kasi Prasad v. State of Orissa : AIR1963Ori24 a Division Bench held that the Orissa Timber and Forest Produce Transit Rules framed under Forest Act, 1927, contain only regulatory measures relating to movement of forest produce even though the produce may not be the property of the Government. Reliance was also placed on Article 305 to hold that, though the rules were made in 1958, they were framed under Section 41 of a pre-Constitution enactment, and hence by virtue of Article 305, an existing law is saved from the operation of Article 301. This aspect is also apposite, as far as 'the rules' are concerned. Reference is then made to State of Tamil Nadu v. Hind Stone : 2SCR742 for contending that, if an Act is enacted for the purpose of regulating a particular type of industry, then such an Act and the rules made thereunder are outside the purview of Article 301, and on this basis, construing that the Mines and Minerals (Regulation and Development) Act was enacted as a regulatory measure, Rule 8(c) of Tamil Nadu Mineral Concession Rules, was upheld. Forest Act was enacted for the protection and management of the forests in the State of Tamil Nadu. It deals with forest wealth found in reserved forests and for preservation and their protection in any forest land not in the control of the Government, and under Chapter V the Government is authorised to make rules to regulate the transit of all timber. Alongside this Act, T.N. Acts 22/49 and 17/55 having been enacted, and the main purpose in framing the rules being 'to regulate transit of timber in the State of Tamil Nadu' they do not bring about any restrictions, but only regulate the movement of timber on complying with certain requirements pertaining to verification of timber right from the stage of cutting of trees upto final utilisation. He also relies upon Writ Appeals Nos. 579 to 591 of 1983 wherein the validity of Clause 3(1)(a) of Tamil Nadu Paddy (Restriction of Movement) Order, 1982, came up for consideration and which was held to be regulatory in nature, and hence stood excluded by Articles 301 to 304.
31. Section 35(d) of the Act empowers the Government to make rules providing for the stoppage, reporting, examination and marking of timber in transit, and Section 35(k) enables rules being made to regulate the use of property marks for timber and the registration of such marks. Under the Act, the said power having been specifically provided for, the rules as framed, come into existence by exercise of the statutory powers conferred on the Government under the Act. Therefore, the contention that for enforcing these regulatory measures, the Act itself ought to have been amended by satisfying the requirements contemplated under proviso to Article 304(b), carries no substance. In State of Mysore v. Sanjeeviah : 2SCR673 it was held that the two impugned provisos to Rule 2 were restrictive in character, whereas the impugned rules are regulatory in nature. Though Mr. Raju, learned Counsel, while referring to paragraph 8 therein would plead that if the rules are made by the executive Government in exercise of delegated authority, it would have the force of law, and that Article 301 could be invoked, it is stated therein that the impugned provisos, do not become part of the Act by virtue of Section 77 of the Mysore Forest Act. If only the impugned rules in these petitions are found to be restrictive, then irrespective of the fact that they have been framed under Section 35 of the Act, they could be held as offending Article 301. By resorting to rule making power, the freedom guaranteed under Article 301 cannot be bypassed. But, once the rules are held to be regulatory in nature, this point advanced by him does not nullify the rules. As to what is the scope, the controlling circumstances which impelled the introduction of the amendments, the evil to be eradicated, and the object to be achieved, have already been considered in the proceeding paragraphs and they clearly show that the Rules are only regulatory in nature. By securing the hammer mark, and a Form II pass, it enables the certified timber being moved from point to point without hindrance or delay, which may occur if the owner is to satisfy authorities otherwise about lawful procurement, at every stage, till manufactured articles come into existence. Hence, the impugned rules are not hit by Articles 301 and 304(b).
32. In some of these petitions, certain Associations have also been impleaded as petitioners, but Counsel appearing in these petitions state that as Individual dealers, who are members of these Associations are also impleaded as petitioners in these petitions, the impleaded Associations are given up for the purposes of these petitions, and hence, the writ petitions are to be disposed of as if filed only on behalf of the individual petitioners named in the writ petitions.
33. In the result, the writ petitions are dismissed with costs fixed at Rs. 250/-to be paid by each of the petitioners in these writ petitions.