VIRJI LALJI PATEL AND CO Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(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 the goods 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. 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 801 to 804 or Article 19 (1) If) of the Constitution.