TMI Blog1967 (1) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... has framed rules to regulate the transit of timber, firewood, 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 proviso 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 Schedule A . By another notification dated September 14, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck down as unconstitutional.With special leave granted by this Court, the State of Mysore has appealed to this Court. 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. 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; By r. 2 which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 S. 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 cl. (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 cl. (1) rules may be made prohibiting absolutely or subject to conditions, the establishment of sawpits, or saw mills or any other sawing contrivance. But cls. (j) (1) do not operate to prohib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, in our view, right in holding that the two provisos to r. 2 are. not regulatory in character, but are restrictive. 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. 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 Art. 301. It has been held by this Court in Automobile Transport (Rajasthan) Ltd.'s case([1963] 1 S.C R, 491, 549.) that regulatory measures, which do not hamper trade, commerce and intercourse, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcised, 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 (A.1 R. 1966 S.C. 1686.) held that a notification issued after the Consitution imposing additional duty under the power reserved under S. 90 read with s. 27 of the' Bihar 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 Orissa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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