Case: State Of Mysore Vs. H. Sanjeeviah

1. By S. 37 of the Mysore Forest Act 11 of 1900 the State Government is authorized to make rules to regulate the transit of * * forest produce. In exercise of the powers conferred by S. 37 the State Government of Mysore has framed rules to regulate the transit of timber, fire-wood, charcoal and bamboos from all lands. By R. 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 Sch. A (hereinafter referred to as the Scheduled area), unless such forest produce is accompanied by a permit prescribed in R. 3. On April 15, 1959 the State of Mysore issued a notification adding a provision to R. 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 Sch. A.By another notification, dated September 14, l960, the State Government introduced the second proviso to R. 2 which read:Provided further that permission may be granted to timber merchants on their requisition to transport timber upto 10 p.m. (22 hrs.) 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 condition of the Timber Transit Rulesrespondent who is a dealer in timber filed a petition under Art. 226 of the Constitution for an order quashing the two provisos to R. 2. on the grounds inter alia that the two provisos were beyond the rule making authority conferred upon the State Government by S. 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 R. 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 S. 37 of the Act. The High Court also held that the two provisos were not saved by Art. 305 of the Constitution and since the function of the two provisos was not regulatory but prohibitory, they were violative of Art. 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.

Reasoning:
Prima facie, a rule which totally prohibits the movement of forest produce during the period between sun-set and sun-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 goodIt 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 forests. 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 clothing 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 clearing 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 R. 2 are not regulatory in character, but are restrictiveThis Court in Kalyani Stores v. State of Orissa. AIR 1966 SC 1686   held that a notification issued after the Constitution imposing additional duty under the power reserved under S.90 read with S. 27 of the Bihar and Orissa Act, 1915, was not existing law within the meaning of Art. 305 of the Constitution read with Art. 366 (10) and the notification was invalid unless it complied with the requirements of Arts. 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 S. 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, AIR 1968 Orissa 24 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 S. 41 of the Orissa Forest Act, 1927.were existing law, and on that account not open to challenge because of Art. 305 of the Constitution even though they violated the guarantee under Art. 301, cannot be regarded as correctArticle 304 which is an exceptions to Art. 301 has no application to this case because that Article saves certain laws from the operation of Art.301 if the law is passed by the Legislature of a State. The provisos to R. 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 S. 77 of the Mysore Forest Act). Again Art.304 (b) exempts from the operation of Art. 301 reasonable restrictions 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 impositions of any restriction trade, commerce on intercourse throughout the territory of India and by the enactment of the two provisos clearly a restrictions is imposed upon the freedom of trade. The provisos to the rule enacted by the State Government must therefore be deemed to be valid as infringing the guarantee under Art. 301 on the freedom of trade, commerce and intercourse.