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High Court Of Madhya Pradesh
T. P. Naik and V. R. Newaskar, JJ.
VIRJI LALJI PATEL - Appellant
Versus
STATE OF MADHYA PRADESH THROUGH SECRETARY FOREST - Respondents
Misc. Petn. 294 Of 1962
Decided On : 03/15/1963
Where the grant or refusal of permit under the rules 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 the policy of the legislation, then it could not be said that the enforcement of such discretionary power under the rules creates unreasonable restrictions on the freedom guaranteed under Article 19(1)(g) of the Constitution. AIR 1954 SC 465 and AIR 1961 SC 1602 relied on. [Para 7]
Rules 3 and 4 made under S. 41 of the Forest Act under Regulation No. 4660 published on 23-6-1961 are meant to effectuate some or all of the objects of the Act. 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 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 timber 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 there fore that the burden is cast upon such a person cannot mean that there is unreasonable restriction upon the right to acquire and hold property or to deal with it. Further, the circumstances 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. [Para 21]
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 or discretionary power vested in the Government officer concerned is untenable. [Para 22]
As the petitioner had not at all applied for a transit pass any question of discriminatory treatment due to actual working of the rules did not arise. [Para 23]
(2) Constitution of India - Arts. 301, 305 - Forest Act 1927 - S. 41 – Rules -Rules 3, 4- validity of-repugnancy to Art. 301 - effect of Art. 305 – rules having been made ill exercise of powers under existing low are not Invalid.
It is clear from Article 305 that it has got the effect of saving existing jaws which arc repugnant to Articles 301 and 305 subject to the direction of the President. Thus where a pre constitutional statutory provision is continued as an existing law then any rule of bye-law flamed in pursuance of the powers under that valid legislation is not affected by what is contained in Article 301.
The impugned rules 3 and 4 made under section 41 of the Forest Act, 1927 and published on 23-6-1961 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 therefore, 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, AIR 1954 Raj. 260 and AIR 1951 Mys. 65 relied on, [Paras 25, 26, 27]
( 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 saw mill situated on the Nagpur road in jabalpur where he carries on business of sawing timber in rafters etc. The petitioner is a forest contract or and has taken Government forest on lease in 5 forest Divisions-South and North-Mandla-Divisions, Chhindwara Division, Sagar division, and Seoul Division. According to him he extracts timber from the aforesaid Forest Divisions which pertain to his contract in the shape of logs bearing hammer-mark assigned to them by the Forest Officers. The timber is moved out of the Forest and is check ed by the Forest Guards at the Check Posts and checking receipts are issued in the prescribed forms in duplicate one of which is retained by the Forest Officer while its counter-foil is given to the petitioner's servant or agent who in in-charge of the vehicle making transportation. Even while bringing thegoods within the precincis of the Jabalpur City there are 5 different various Nakas where again the goods brought in are checked. The goods thereafter are brought in the saw mill belonging to the petitioner and are made into planks, rafters etc. As a result of this operation the identity of the goods is lost by reason of the separation of the hammer-mark from the various pianks and rafters into which it is cut. The petitioner there after 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 801 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) ff) 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.
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