TMI Blog1997 (2) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Punjab etc.etc. [1997 (1) J.T. (S.C.) 40]. Chapter II of the Act deals with reserved forests while Chapter III deals with village forests. Chapter IV deals with protected forests and while Chapter V with State government control over forests and lands not being the property of the government. Chapter VI provides for levy of duty on timber and other forest-produce. Chapter VII provides for control on timber and other forest-produce in transit. Chapter VIII deals with drift timber. Chapters IX, XI and XIII contain machinery provisions. A perusal of the provisions of the Act shows that the Act is designed to protect and increase the forest wealth and its proper utilisation for the purposes of the State and the people. For the purpose of the present case, it is not necessary to notice the provisions of the several chapters of the Act except Chapters VI, VII and XII. Section 39 in Chapter VI confers upon the Central Government the power to levy duty on timber and other forest-produce. Section 39 reads as follows: 39. Power to impose duty on timber and other forest-produce--(1) The Central Government may levy a duty in such manner, at such places and at such rates as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imber as well as the control of all timber and other forest-produce in transit by land or water. It also empowers the State government to make rules to regulate the transit of all timber and other forest-produce . Sub-section (2) elucidates several matters in respect of which rules can be framed. It would be appropriate to set out Section 41 in its entirety: 41. Power to make rules to regulate transit of forest produce. -- (1) The control of all rivers and their banks as regards the floating of timber, as well as the control of all timber and other forest-produce in transit by land or water, is vested in the State Government, and it may make rules to regulate the transit of all timber and other forest-produce. (2) In particular and without prejudice to the generality of the foregoing power such rules may-- (a) prescribe the routes by which alone timber or other forest- produce may be imported, exported or moved into, from or within the State; (b) prohibit the import or export or moving of such timber or other produce without a pass from an officer duly authorised to issue the same, or otherwise than in accordance with the conditions of such pass; (c) provide for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any Forest- officer under this Act; (b) to regulate the rewards to be paid to officers and informers out of the proceeds of fines and confiscation under this Act; (c) for the preservation, reproduction and disposal of trees and timber belonging to Government, but grown on lands belonging to or in the occupation of private persons; and (d) generally, to carry out the provisions of this Act. 77. Penalties for breach of rules. -- Any person contravening any rule under this Act, for the contravention of which no special penalty is provided, shall be punishable with imprisonment for a term which may extend to one month, or fine which may extend to five hundred rupees, or both. 78. Rules when to have force of law. -- All rules made by the State Government under this Act shall be published in the Official Gazette, and shall thereupon, so far as they are consistent with this Act, have effect as if enacted therein. A reading of Sections 41 and 74 discloses that besides vesting total control over the forest-produce in the State government and empowering it to regulate the transit of all timber or other forest-product, the State government is also empowered to make ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Government in the Official Gazette. Provided further that such period of validity shall not exceed 6 (six) months. (7) Every licence granted under this Rules may be renewed. An application for renewal of licence shall be made in form-E within 30 (thirty) days before the expiry of the licence. the Divisional forest Officer having the jurisdiction over the area shall on receipt of application for renewal of licence, make such inquiry as he may think fit and within a period of 60 (sixty) days from the date of receipt of such application, either grant or refuse to grant renewal of the licence; Provided that no renewal of licence shall be granted unless the Divisional forest Officer is satisfied about the location, availability of the raw materials, financial capacity, past records in business and relevant antecedent of such person. Whether the Divisional Forest Officer refuses to grant such renewal of licence, he shall record the reasons therefor and such reasons shall be communicated to the person in writing. For the purpose of inquiry under this rules, the Divisional Forest officer may enter into or upon any land, survey and demarcate the same, make a map thereof or auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d percent of the market value of the timber/firewood concerned would be leviable. Sub-rule (6) empowers the government to notify the route or routes along which the forest-produce shall be transported to a place outside the State. Sub-rule (7) deals with renewal of licences, Sub-rule (8) says that the quantity of timber and firewood to be exported from the State shall be determined on the basis of availability of forest-produce after catering to the needs of the local people of the State and the requirements of the people of the State. The High Court has declared that the levy of application fee of Rupees one thousand and of licence fee of Rupees two thousand amounts to levy of tax and is bad. This is on the ground that the State has not established the service rendered in lieu of the said fees. The High court has also held that sub-rule 5), which levies export duty on export of timber from the State is beyond the rule-making power conferred upon the State government by Section 41. It has also found fault with sub-rule 98). The High Court has been of the further opinion that rule 3 violates Article 301 of the Constitution and since the proviso to clause (b) of Article 304 has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that in the case of regulatory fees, no quid pro quo need be established. The following observations may usefully be quoted; This contention is not really open to the respondent for s.548 does not use the word `fee'; it uses the words `licence fee' and those words do not necessarily mean a fee in return for services. In fact in our Constitution fee for licence and fee for services rendered are contemplated as different kinds of levy. The former is not intended to be a fee for services rendered. This is apparent from a consideration of Art.110(2) and Art.199(2) where both the expressions are used indicating thereby that they are not the same. In Shannon v.Lower Mainland Dairy Products Board, 1938 A.C.708: (AIR 1939 PC 36) it was observed at pp.721-722 (of AC): (at pp.38-39 of AIR): `if licences are granted, it appears to be no objection that fees should be charged in order either to defray the costs of administering the local regulation or to increase the general funds of the Province or for both purposes.....It cannot, as their Lordships think, be an objection to a licence plus a fee that it is directed both to the regulation of trade and to the provision of rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the relevant provisions, and as has been repeatedly observed, the court while interpreting the expression must necessarily keep in view the object to be achieved and the mischief sought to be remedied [at Page 79]. Having regard to the context and other relevant circumstances, it has been held in some cases that the expression regulation does not include prohibition whereas in certain other contexts, it has been understood as taking within its fold prohibition as well. it has been held in K.Ramanathan v. State of Tamil Nadu Anr. [1985 (2) S.C.C.116] that: The word `regulation' cannot have any rigid or inflexible meaning as to exclude `prohibition'. The word `regulate' is difficult to define as having any precise meaning. it is a word of broad import, having a broad meaning, and is very comprehensive in scope.....It has often been said that the power to regulate does not necessarily include the power to prohibit, and ordinarily the word `regulate' is not synonymous with the word `prohibit'. This is true in a general sense and in the sens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctment was regulatory or something more or whether a restriction was direct or only remote or only incidental involved, not so much legal as political, social or economic consideration and that it could not be laid down that in no circumstances could the exclusion of competition so as to create a monopoly, either in a State or commonwealth agency, be justified. Each case, it was said, must be judged on its own facts and in its own setting of time and circumstances and it might be that in regard to some economic activities and at some stage of social development, prohibition with a view to State monopoly was the only practical and reasonable manner of regulation. The statute with which we are concerned, the Mines and Minerals [Development and Regulation] Act, is aimed, as we have already said more than once, at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is that most effective method of conservation and prudent exploitation. if you want to conserve for the future, you must prohibit in the present. We have no dou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of the forest-produce in the interest of the States and their people. It is for achieving the above purpose that the Act provides for declaration of reserve forests, formation of village forests and declaration of protected forests. It is for achieving the very purpose that the Act vests, in the government, control over forest and lands not being the property of the government controls even the collection and movement of drift and stranded timber. It is not a taxing enactment but an enactment designed to preserve, protect and promote the forest wealth in the interests of the nation. It must necessarily take within its fold catering to the needs to the people of the State and that is what sub-rule (8) provides. In our opinion, therefore, sub-rule (8) of Rule 3 is perfectly valid. We shall now consider the attack based upon Article 301. In our opinion, the reason for which Rule 3 has been held to be in contravention of Article 301 of the Constitution are unsustainable in law. The impugned Rule 3 is made by the State as the delegate of the Parliament to carry out the purposes of the Act. It is not a law made by the legislature of the State of Tripura nor is it a rule made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibiting the production, supply and distribution of essential commodities and trade and commerce therein. For the above reasons, we are of the opinion that Rule 3 of the Tripura Transit Rules cannot be said to be violative of Article 301 nor is it required to comply with the requirement of the proviso to clause (b) of Article 304 of the Constitution. The levy of duty is sought to be sustained by the learned counsel for the State of Tripura with reference to sub-section (3) and/or sub-section (4) of Section 39. It is submitted that the Princely State of Tripura has imposed the said duty and that the same is being continued after the commencement of the Constitution. Article 305 of the Constitution is also invoked in this behalf. We are unable to appreciate the submission. No order or proceeding of the Princely State of Tripura has been produced before the High Court or this Court levying the duty. We also do not know at what rate and on what basis, if any, the duty was being levied. We are also not sure whether the said plea can fall within the four corners of either sub-section (3) or sub- section (4). Sri Javali requested for grant of sometime to enable the State to produce the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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