Venkateswara Timber Dept. And Others Etc. Etc. v. Government Of Andhra Pradesh And Others

ORDER S.B. Sinha, CJ

1. The vires of sub-rule (9) of Rule 5 of A.P. Forest Produce Transit Rules, 1970 inserted by G.O. Ms. No.87, Environment, Forests, Science and Technology (For.III) dated 5-7-1999 is questioned in these writ petitions.

2. The petitioners herein are retail timber merchants engaged in the trade of purchase of timber and conduct of retail sale of timber in Rangareddy and Hyderabad districts. The Government of Andhra Pradesh in exercise of the powers conferred under Section 68 of A.P. Forests Act, 1967 (for short 'the Act') has framed rules known as A.P. Forest Produce Transit Rules, 1970 (for short 'the Rules'). Rule 5 of the said rule provides for issuance of a permit in respect of forest produce to be removed from forest or Government Timber Depots in Form I and Form II. By reason of the amendment issued in G.O. Ms. No.87 dated 5-7-1999, sub-rules (9) and (10) were inserted in Rule 5 purporting to require that the saw mill owner or depot owner trading in Municipalities and Municipal Corporation areas where the saw mills or depots are situated should issue delivery challan in Form No.IV along with the forest produce sold and Form IV should be maintained for certification of the Forest Officers.

3. Mr. Venkataramana, the learned Counsel appearing on behalf of the petitioners submit that the restriction which is sought to be imposed on the depot owners is being restricted to the timber deposits situate in municipal and municipal corporations and the same is ultra vires Article 14 of the Constitution of India. No reasonable purpose, submits the learned Counsel, would be achieved by insertion of the said provision. In any event, contends the learned Counsel, the said restriction is wholly unworkable and impracticable and thus void for uncertainty. According to the learned Counsel, if such restriction had been issued for the purpose of curbing of illegal transit of the forest produce, even the timber depots situated in Gram Panchayats should have also been put to such restriction. Some of the Municipalities or Municipal Corporations may be nearer to forest but many of the municipalities are far away from forest and thus it is not at all understandable as to how sub-rule (9) of Rule 5 may be made applicable to the sawmills situated within the Municipalities or Municipal Corporations. Timber, according to the learned Counsel, is not a controlled item.

4. A somewhat peculiar stand had been taken in the counter-affidavit. The formats for Form II and IV had been issued after series of deliberations with Timber Merchants Federations. It is stated:

Since the utility of sawn timber in timber depots situated in Gram Panchayat is less compared to the consumers in Municipalities/Municipal Corporations. Form II is prescribed for both sawn sizes and round timber in the Gram Panchayats. Thus, the delivery Challan (Form IV) has been introduced to take care of source of material and name and address of purchaser for retail sale of sizes only under intimation to the Forest Range Officer and Divisional Forest Officer.

As per the representation made by the A.P. Timber Merchants, Saw Millers and Allied Industries Federations the procedure of issue of Form II permits for sawn sizes in Municipalities/ Municipal Corporations which are large consumers of sawn sizes is dispensed with and saw mill owners can issue delivery challan in the Form IV instead of permit under Form II. The format is prescribed (Form IV) and that will help in streamlining the procedure of issue of delivery challans in lie of Form II permits in Municipality/Municipal Corporation areas, which are large consumption centers for sawn timber. But round timber cannot be transported on the Form IV (Delivery challan). Thus, it is manifest that the form of Form IV is the alternative/substitution of Form II issued by the Saw Mill owners in Municipality and Municipal Corporations.

5. Sub-section (1) of Section 68 of the Act reads as follows:

Power of the Government to make rules:--(1) the Government may, by notification make rules to carry out all or any of the purposes of this Act.

6. The competence of the State, therefore, to make the rules cannot be disputed. Sub-section (1) of Section 68 authorizes the State to make rules pursuant whereto A.P. Forest Produce Rules, 1970 were framed to carry out the purposes of the Act.

7. Forest produce has been defined under Section 2(g) to mean:

(1) The following whether found in, or brought from a forest or not, that is to say timber, bamboos, charcoal, rubber, cacutchour, catechu, wood-oil, resin, natural varnish bark, lac, mahua flowers, mahua seeds, myrobalans, tumki leaves, rousa grass, rauwolfia serpentina, adda leaves;

(1) The following when found, or brought from a forest that is to say-

(i) trees, such leaves, flowers and fruits as may be prescribed and all other parts or produce not herein before mentioned of trees;

(ii) plants nor being trees (including grass, creepers, reeds and moss) and all parts or produce of such plants.

(iii) wild animals, wild birds, skins, tusks, horns, bones, silk cocoons, honey wax, and all other parts or produce of animals and birds;

(iv) peat, surface soil, rock and minerals (including lime stone and laterite) mineral oil and all products of mines or quarries; and (2) Such other product as may be prescribed;

Section 2(q) defines 'timber' as under:

Timber includes trees fallen or felled, and all wood, cut up or sawn.

8. Sub-rule (3) Rule 2 of the Rules defines 'forest produce in transit' to mean:

Forest produce in transit includes forest produce found stored in any place in margin of any public road or cart track or foot-path whether or not loaded in carts or other vehicles and forest produce fund in any river, canal or water course whether in rafts or not.

9. Sub-rule (4) of Rule 2 defines 'form' to mean form appended to the said rules. Rule 3 prohibits transit of forest produce by land or water unless the same in accompanied by a permit issued under Rule 5 and produced for check immediately on demand. Rule 5 empowers the Divisional Forest Officer or an officer or person duly authorized by him in this behalf to issue a permit in From-I in respect of forest produce to be removed from the forest areas or Government Timber Depots and in Form-II in all other cases. The specified authority may also refuse to issue such permit. Sub-rule (3) of Rule 5 empowers the Divisional Forest Officer to ascertain about the rights and titles over the forest produce if any produce is to be removed from private lands from such revenue officer as may be specified by the Conservator of Forests.

10. sub-rule (9) of Rule 5, which is impugned in the present writ petition, reads thus:

In Municipalities and Municipal Corporation areas where the saw mill owner, depot owner dispose Forest produce except round timber within the local limits of Municipalities or Municipal Corporation, they should issue delivery Challan in Form-IV along with the forest produce sold. Form-IV can be got printed by the saw mill owners or depot owners themselves and use them after informing Book No. and No. of leaves in ach book to concerned Ranger Officers and Divisional Forest Officers by registered post with acknowledgment due.

11. The submission of Mr. Venkataramana is to the effect that the State is denuded of its power in making a rule inasmuch as the timber is not a controlled item under the Essential Commodities Act, but the same admittedly is a forest produce as defined in Section 2(g) and Section 2(q) of the Act. In terms of the aforementioned definitions, the trees fallen or felled or all wood cut up or sawn would come within the purview of definition of 'timber'.

12. The said Act was enacted for protection and management of forests, which, undoubtedly, would include within its purview regulation of the movement of forest produce in the State.

13. The hollowness of the submission of the learned Counsel that the State has no power to make the rules is fortified by the fact that the vires of sub-rule (10) of Rule 5 has not been questioned. It is true that all timber is required to be removed in Form-II permits. However, as noticed hereinbefore, from the counter-affidavit, it appears that sub-rule (9) of Rule 5 of the rules was introduced on the representation of the A.P. Timber Merchant Federation to the effect that the procedure of issue of Form II permits for sawn sizes in Municipalities/Municipal Corporations may be dispensed with to enable the saw mill owners to issue delivery challans in Form IV instead of permit under Form-II.

14. Unfortunate though it may seems to be that seeking to give certain benefit to the saw mill owners situated within the Municipalities and Municipal Corporations, they have now been asked to issue the delivery challans in Form-IV although no amendment has been made to sub-rules (1) and (3) of Rule 5 so as to clarify that those retail saw mill and timber depot owner need not take permits in Form-II.

15. It may be relevant to note that the aforementioned amendment was made having regard to the decision of a Division Bench of this Court in M. Venkateswara Rao v. Government of A.P., 1997 (3) ALD 685, wherein it was held:

We cannot accept the contention of the learned Government Pleader as a whole. Though the Government Pleader, with some credit, can take the ground that these three Municipalities in question can be singled out on the ground that they are nearer to the forest areas, that itself is not sufficient to impose stringent restrictions requiring the transit permits for the transport of sawn sizes and timber cut in the saw mills within the said Municipal in all cases. As rightly contended by the petitioners, the timber (unsawn) in the depot is already covered by the transit permit. If it is not covered, the authorities can verify and take action. In such a case, the further insistence of transit permit for every retail sale of sawn sizes to the consumers certainly works out hardship. Even for a small quantity of sawn sizes sold to consumer, transit permit has to be obtained if the stand of the Government is accepted. This involves unnecessary expenditure and also delay causing much inconvenience to the trading activities of the petitioners and also the consumers. There are sufficient provisions in the A.P. Forest Act to check transit of illicit timber even in the municipal limits. Ordinarily, the retail sales of sawn sizes will be covered by cash memos and delivery challans. The authorities can verify the genuineness of these documents to ascertain the source of the timber. The authorities cannot insist transit permits in respect of these retail sales to the consumers in the guise of checking transport of illicit timber within the limits of the municipalities in question. The Government in their good sense have already issued the Memo dated 5-9-1994. But, for the reasons best known to them, again kept this Memo in abeyance.

16. Having held that there exists presumption as regards the constitutionality of legislation, the Court without assigning any further reasons, proceeded to read down the same and, while doing so, directed:

It is a settled principle that in considering the validity the provisions of a statute, the Court will presume that the legislation was intended to be intra vires and also reasonable and that the rule followed is that the section ought to be interpreted consistent with the presumption which imputes to the Legislature an intention of limiting the direct operation of its enactment to the extent that is permissible, as held by the Supreme Court in All Saints High School v. Government of Andhra Pradesh, AIR 1980 SC 1032. In the same decision, the principle of reading down the provisions of a statute has been explained as follows:

This Court has in several cases adopted the principle of reading down the provisions of the statute. The reading down of a provision of statute puts into operation the principle that so far as it is reasonably possible to do so, the legislation should be considered as being ' within its power. It has the principle effect that where an Act is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond the relevant legislative power, the Court will construe it in a more limited sense so as to kept it within power.

If the broad and liberal interpretation is given to the impugned rule, the rule will operate harshly and in an unreasonable manner. Therefore, we fee that it must be suitably read down without striking down the rule itself. In the circumstances, it would suffice if we direct the Forest authorities not to insist on the transmit permits in respect of the sales of timber sawn sizes sold in retail to the consumers when the same are transported from saw mills and/or depots to the places of consumers. The authorities can however verify the relevant documents viz., cash memo, delivery challan etc. If they feel genuine doubt with regard to the authenticity of these documents, they can probe further in the matter to ascertain whether the sawn sizes involved are illicit timber or not and take necessary action in accordance with law.

17. The reading down of a statute so as to uphold the constitutionality of a provision is no doubt available. But, before doing so, the Court must come to a conclusion that in the event it cannot be so read down, it must be held that the legislation as it is would be ultra vires.

18. In Delhi Transport Corporation v. DTC Mazdoor Congress, , Ray, J., observed.

Seervai in his book 'Constitutional Law of India', Third Edition has stated at p.119 that:-

"..... the Courts are guided by the following rules in discharging their solemn duty to declare laws passed by a Legislature unconstitutional:

(1) There is a presumption in favour of constitutionality and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; "to doubt the constitutionality of a law is to resolve it in favour of its validity:"

.....

.....

(6) A statute cannot be declared unconstitutional merely because in the opinion of the Court it violates one or more of the principles of liberty, or the spirit of the Constitution, unless such principles and that spirit are found in the terms of the Constitution."

214. On a proper consideration of the cases cited hereinbefore as well as the observations of Seervai, in his book 'Constitutional Law of India' and also the meaning that has been given in the Australian Federal Constitutional Law by Colin Howard, it is clear and apparent that where any term has been sued in the Act which per se seems to be without jurisdiction but can be read down in order to make it constitutionally valid by, separating and excluding the part which is @ page-SC 170 invalid or by interpreting the word in such a fashion in order to make it constitutionally valid and within jurisdiction of the Legislature which passed the said enactment by reading down the provisions of the Act. This, however, does not under any circumstances mean that where the plain and literal meaning that follows from a bare reading of the provisions of the Act, Rule or Regulation that it confers arbitrary, uncanalysed, unbridled, unrestricted power to terminate the services of a permanent employee without recording any reasons for the same and without adhering to the principles of natural justice and equality before the law as envisaged in Article 14 of the Constitution, cannot be read down to save said provision from constitutional invalidity by bringing or adding words in the said legislation such as saying that it implies that reasons for the order of termination have to be recorded. In interpreting the provisions of an Act, it is not permissible where the plain language of the provision gives a clear and unambiguous meaning can be interpreted by reading down and presuming certain expressions in order to save it from constitutional invalidity. Therefore, on a consideration of the above decisions, it is impossible to hold by reading down the impugned provisions of Regulation 9(b) framed under Section 53 of the Delhi Road Transport Act, 1950 read with Delhi Road Transport (Amendment) Act, 1971 that the said provision does not confer arbitrary, unguided, unrestricted and uncanalised power without any guidelines on the authority to terminate the services of an employee without conforming to the principles of natural justice and equality as envisaged in Article 14 of the Constitution of India. I am, therefore, constrained to uphold the judgment of the Delhi High Court in CWP No. 1422 of 1985, Reported in 1987 Lab IC 1070 (Delhi) and dismiss Civil Appeal No. 2876 of 1986. I allow Civil Appeal No. 1115 of 1976 and agree with the order proposed to be passed thereon by the learned Chief Justice. The other appeals as referred to in detail in the judgment of the learned Chief Justice be placed before the Division Bench of this Court to be disposed of in accordance with the observations made herein. I agree with conclusion arrived of by my learned brother K. Ramaswamy, J.

Sawant, J observed:

228. It is thus clear that the doctrine of reading down or of recasing the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations are possible one rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intentions of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made.

However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the Court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the Courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires an extensive additions and deletions. Not only it is no part of the Court's duty to undertake such exercise, but its beyond its jurisdiction to do so.

19. Furthermore, while reading down the statute, the Court, in exercise of its jurisdiction under Article 226 cannot re-legislate in the guise of reading down of the provisions of the statute. We are, therefore, of the opinion that the decision of this Court in M. Venkateswarao case (supra) does not lay down the correct proposition of law and must be overruled.

20. However, on that ground alone, sub-rule (9) of Rule 5 cannot be held to be invalid. The submission of the learned Counsel to the effect that a distinction has been made between depot owners whose mills are situated within the Municipal/ Corporation limits on one hand and the depot owners whose mills are situated in the Panchayat areas on the other hand cannot also be sustained keeping in view the fact that those saw mill owners dealing in small cut timbers form a class by itself and they can be subjected to a greater regulation. Article 14 does not, in our considered opinion, forbid such legislation particularly when justification therefor has been laid down in the counter-affidavit.

21. Yet again, in Madanlal Sethi v. State of M.P., , it has clearly been held that the State has legislative competence.

We have perused the relevant forms submitted by the parties. After perusing the same, we are satisfied that the details, as have been provided, for are required only with the object of ensuring that the licensees who are the persons in the control of the saw mill and saw-pit or employee etc., are in lawful possession of the wood and of further ensuring that the wood in their possession was obtained from a lawful source and they have duly accounted for such a wood. Otherwise, unaccounted wood would be presumed to have been obtained from unlawful source and thereby they are liable to account for, and on failure to account for the same, they should face the consequences ensuing thereunder, viz., confiscation, cancellation of licence or prosecution. It is also seen that an Expert Committee came to be constituted to lay down modalities for identification of the logs and wood purchased from the auction depots in the forest area etc. It is true that these are the administrative instructions and they do not have flavour of statutory rules.

22. In Vijayalakshmamma v. B.T. Shankar, , the Apex Court while considering the provisions of Hindu Adoption and Maintenance Act, 1956 vis-a-vis the Old Hindu Law, clearly held that Courts may not add to or alter provisions of statutes by reading into them what was never intended by the legislature or may have been deliberately or consciously avoided by it. The Apex Court further observed that the extent to which aspects of law would require modernisation, modification and alteration are matters of legislative policy and Courts may not add to or alter the language, structure or contents of a provision by reading into it that which was not intended by the Legislature.

23. Yet again in Gurudevdatta Vksss Maryadit v. State of Maharashtra, , the Apex Court dealing with legislative malice has categorically held that existence of malice in the legislation making process cannot be gone into by the Courts while considering the validity of a statute.

24. The contention of the petitioners that the impugned Amendment Acts as an unreasonable restriction offending their right to business guaranteed under Article 19(1)(g) of the Constitution of India has also no merit. The object of the Transit Rules is to regulate the movement of forest produce. The prescription of issue of delivery challans by the saw-mill owner or depot owner while disposing of the forest produce is only to regulate the movement of forest produce as underlined by the Act and the Rules framed thereunder. By no stretch of imagination such a regulatory measure can be termed as unreasonable restriction. By reason of the impugned amendment, the right of the petitioners to carry on the trade or business had neither been taken away nor has been put to any restriction. The delivery challan now to be issued by the saw mill owners is in substitution of Form II hitherto issued by them. Even assuming such a regulatory measure or prescription can be called as a restriction under Article 19(1)(g), in view of the alarming situation of degradation of forests which has an impact on the environment and ecology of the earth, the same cannot be termed as an unreasonable restriction when it is meant to serve the public good.

25. At this stage, we may refer to the decision of Apex Court in State of Tamil Nadu v. M/s. Sanjeetha Trading Company, , wherein the notification issued by the Tamil Nadu Government making amendment to clause 3 of the Tamil Nadu Timber (Movement Control) Order, 1982 was challenged as violative of Article 19(1)(g) and Article 301 of the Constitution of India. Under the Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, 1949, 'timber', was declared to be an essential article. Clause 3 of the above order prescribes that 'no person shall transport, move or otherwise carry or prepare or attempt to transport, move or otherwise carry, or and or abet in the transport, movement or otherwise carrying of timber from any place within the State of Tamil Nadu to any place outside the State except under and in accordance with the terms and conditions of a permit issued under the Tamil Nadu Timber Transit Rules, 1968'. By reason of the notification which was under challenge before the Apex Court, the expressions "except under ..... Transit Rules, 1968" were omitted; thereby it prohibited transport and movement of timber from any place within the state of Tamil Nadu to any place outside the State. However, by the said notification, certain types of wood and furnished produce were excluded. Reversing the decision of the Madras High Court, the Apex Court observed:

It was also impressed that in order to satisfy the local requirement of timber and to make timber which is an essential article available to the common man at a reasonable price it was necessary to impose impugned prohibition on the movement and transport of timber outside the State. The writ-petitioners did not challenge the declaration of timber as an essential article. It was not suggested that the declaration of timber as an essential article has been made on extraneous considerations and not in public interest. As such it has to be assumed that for arranging the supply of timber at fair prices and for equitable distribution thereof the prohibition has been imposed. In such a situation there is no escape from the conclusion that prohibition shall be deemed to be regulatory in nature and not restrictive so as to attract Articles 301 or 304 or 19(1)(g) of the Constitution.

26. As noticed hereinbefore, it is not a case where a ban has been imposed on the movement of timber within the State, but it has been subjected to a regulatory measure. Even though in the State timber has not been declared as an essential article. In view of the degradation of forests on account of illicit felling of trees etc., affecting the environment, it assumes importance. Therefore, by reason of such regulatory measure, it cannot be said that the right of the petitioners under Article 19(1)(g) has been infringed. The petitioners are only required to issue delivery challans in Form IV in substitution of From II.

27. For the reasons aforesaid, we find no merit in the writ petitions, which are accordingly dismissed. No costs.