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Judgment
Subba Rao, C.J.—This batch of appeals has been filed against the order of Chandra Reddi J. and they raise the question of the constitutional validity of Section 3 (2) of the Madras Preservation of Private Forests Act, 1949 (hereinafter referred to as the Act).
The facts are not in dispute and they lie in a small compass. The land-holders of the various estates applied to the Collector concerned u/s 3 (2) of the Act for permission to cut the trees in the forests situated in their respective estates. The Collectors by their laconic orders refused to give the permission without assigning any reason for the same. Aggrieved by the orders of the Collectors, the land-holders filed petitions in the High Court under Art 226 of the Constitution of India for issuing Writs of mandamus to direct the State to forbear from interfering with the enjoyment of the forests. Their main, if not the sole, ground of attack against the orders was that the aforesaid section, preventing the owner of a forest from cutting trees therein without the previous permission of the District Collector, infringes the fundamental right enshrined in Art. 19 (1) (f) of the Constitution of India, namely, to acquire, hold and dispose of property, and therefore, was constitutionally void. Chandra Reddi J. who heard the petitions in the first instance, held that the said restrictions were reasonable restrictions imposed in the interests of the general public within the meaning of Art. 19 (5) of the Constitution and, therefore, the appellants'' fundamental right to hold and dispose of the property was not in any way infringed. He also held that the said section was also not hit at by the provisions of Art. 14 of the Constitution. In the result, he dismissed the petitions. Hence the appeals.
THE MADRAS PRESERVATION OF PRIVATI FORESTS ACT, 1949:
The impugned sub-section and the provisions of the Constitution on the basis of which the validity of the section is questioned read thus:
Section 3 (2) : No owner of any forest and no person claiming under him whether by virtue of a contract, licence or any other transaction entered into before or after the commencement of the Madras Preservation of Private Forests Act 1946, or any other person (sic) without the previous permission of the (sic) Collector, cut trees or do any act likely in (sic) the forest or diminish its utility as a forest.
Provided that nothing contained in this sub-section shall apply to the removal of lead or fallen trees or to any act done for the usual or customary domestic purposes or for asking agricultural implements.
CONSTITUTION OF INDIA
Art 19 (1): All citizens shall have the right (f) to acquire, hold and dispose of property. Art. 19 (5): Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes prevents the State from making any law imposing, reasonable restrictions on the exercise any of the rights conferred by the said sub-clauses either in the interests of the general public, or for the protection of the interests of any scheduled tribe.
Mr. Vedantachari, learned counsel for the appellants contends that the land holders are he owners of the forests, that sub-section 2 of section 3 of the Act does not impose any restrictions by regulating the manner of the enjoyment of the forests but puts them at the mercy an executive Officer, who could, in the exercise of his ungraded and arbitrary discretion, prohibit them from enjoying their property for a indefinite period of time. He asks, would be a reasonable restriction on a man''s right enjoy his property if an arbitrary power unregulated by any standards was conferred on a officer to deprive a person of the enjoyment of his property without compensation for an definite period?
He adds that such a power apart from the Act that is inherently bad is unrelated to and also in excess of the requirements of the objects of the Act, namely, the prevention of a indiscriminate destruction of private forests (sic)d interference with customary and prescriptive rights therein. He would further say that history of the legislation indicates that the eject of the legislature was to prevent for a temporary period, the discriminate cutting way of the trees by land holders pending the (sic)ssing legislation regulating the rights inter between land holders and ryots in regard to be forests and that it was never intended to event land holders from enjoying their forests definitely.
The counter arguments of the Government Pleader may be summarised thus. The (sic) is a temporary Act and its object is to present denudation or indiscriminate destruction forests pending legislation intended to be (sic)ssed for preventing such denudation and also regulating the rights inter se between land (sic)lders and tenants. To achieve that object, a machinery has been provided by the Legislature regulating the rights of the land holders, be Collector, who necessarily acts as a quasi-judicial tribunal, after considering the application filed by the land holder giving the necessary details prescribed by the rules under the disposes of his application judicially and an grieved party is given a statutory right to appeal to the State Government.
The rules framed under the Act also prescribe the conditions subject to which a permit be issued by the Collector. The entire regulatory machinery provided by the State and the rules framed thereunder is devoid of any arbitrariness about it and designed to achieve the object of the legislature namely, to prevent denudation of forests and therefore is a reasonable restriction on the fundamental right of the appellants within the meaning of the Constitution.
Pausing here, it would be convenient at this stage to consider the scope of Art 19(5) of the Constitution of India having regard to the terms of the Article and the decisions bearing on the same. The Article was the subject of judicial scrutiny by the Supreme Court of India and also by the High Courts of India. Some of the leading decisions may usefully be noticed.
The Supreme Court in Chintaman Rao Vs. The State of Madhya Pradesh, , has defined the Phrase ''reasonable restriction'' in Art. 19 (6) of the Constitution. For the present purpose, clauses 5 and 6 of Art. 19 are in pari materia and the construction of the one bears on the other. There, under the Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural Purposes) Act LXIV of 1948, the Deputy Commissioner was authorised by Notification to fix a period to be an agricultural season with respect to such villages as may be specified therein and he was also authorised by a general order to prohibit the manufacture of beedis during the agricultural season in the said villages.
The said provisions were impugned on the ground that they infringed the fundamental right of the villagers to carry on their trade or business guaranteed to them by clause (1) (g) of Art. 19 of the Constitution. The Supreme Court struck down the statute on the ground that it was not in conformity with the provisions of Part III of the Constitution. Mahajan J. as he then was, who delivered the judgment on behalf of the Court, made the following observations at p. 763: (of SCR): (at p. 119 of AIR):
The phrase ''reasonable restriction'' connotes that the limitation impugned on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word ''reasonable'' implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades tile right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Art 19 (1) (g) and the social control permitted by clause 6 of Art. 19 it must be held to be wanting in that quality.
The learned Judge proceeds to say:
The statute in substance and effect suspends altogether the right mentioned in Art. 19 (1) (g) during the agricultural seasons and such suspension may lead to such dislocation of the industry as to prove its ultimate rain. The object of the statute is to provide measures for the. supply of adequate labour for agricultural purposes, in bidi manufacturing areas of the Province and it could well be achieved by legislation restraining the employment of agricultural labour in the manufacture of bidis during the agricultural season. The effect of the provisions of the Act, however, has no reasonable relation to the object in view but it is so drastic in scope that it goes much in excess of that object.
The principle laid down in this decision is unexceptionable and indeed is binding on us. In that particular case, the restriction imposed went much in excess of the object intended to be achieved and, therefore, the Supreme Court declared the statute invalid.
The Supreme Court in Thakur Raghubir Singh Vs. Court of Wards, Ajmer and Another, ), applying the same principle held that the provisions of Section 112 of Act XLII of 1950 could not be regarded as a reasonable restriction imposed in the interests of the general public on the exercise of the right conferred by Art. 19 (1) (f) of the Constitution. Section 112 of the Ajmer Tenancy and Land Records Act provided that
if a land-lord habitually infringes the rights of a tenant under this Act he shall, notwithstanding anything in section 7 of the Ajmer Government Wards Regulation 1888 (1 of 1888) be deemed to be a land-lord, who is disqualified to manage his own property within the meaning of section 6 of the said Regulation and his property shall be liable to be taken under the superintendence of the Court of Wards.
Section 6 of the Regulation provided that the Court of Wards may with the previous sanction of the Chief Commissioner, assume the superintendence, of the property of any landholder who is disqualified to manage his property. The petitioner whose estate was taken over by the Court of Wards under the above mentioned provisions of law applied for relief under Art. 32 of the Constitution for restoration of his estate. Mahajan J. summarised the effect of the aforesaid provisions thus at page 1054 (of SCR): (at p. 375 of AIR):
The result then is that by the subjective determination of the Court of Wards both the questions whether a particular person habitually infringes the rights of his tenants and whether his property should be taken over by the Court of Wards stand settled and the land-lord cannot have recourse to a Civil Court on these questions.
The learned Judge when confronted with an argument based upon Art. 19 (1) of the Constitution of India proceeded to state:
In our judgment this argument also is not sound. As indicated above, the provisions of Section 112 of Act XLII of 1950 are penal in nature and are intended by way of punishment of a land-lord who habitually infringes the rights of his tenants. He is punished by being placed at the mercy of the Court of Wards and by being made subject to the stringent provisions of Regulation 1 of 1888. An enactment which prescribes a punishment or penalty for bad behaviour or for misconduct of a landlord cannot possibly be regarded as restriction on a fundamental right
This case shows that a section conferring arbitrary and unrestricted power on an authority enabling him to punish a landlord for bad behavior is not a reasonable restriction within the meaning of the Constitution.
Another decision of the Supreme Court which turned upon the interpretation of the provisions of Art 19 (1) (g) and 19(6) of the Constitution is Dwarka Prasad Laxmi Narain Vs. The State of Uttar Pradesh and Others, Under Clause 4 (3) of the Uttar Pradesh Coal Control Order 1953, the licensing authority has been given absolute power to grant or refuse to grant, renew, or refuse to renew, suspend, revoke, cancel or modify any licence under this order and the only thing he has to do is to record reasons for the action he takes.
The said power could be exercised by another, person to whom the State Coal Controller may choose to delegate the same. Applying the touch-stone of the constitutional provisions embodying the fundamental rights to the said order, the Supreme Court held it to be void as imposing an unreasonable restriction upon the freedom of trade and business guaranteed under Article 19 (1) (g) of the Constitution and not coming within the protection afforded by clause (6) of the article. In striking down the provisions, Mukherjea J. observed at page 812 (of SCR): (at p. 227 of AIR):
The licensing authority has been given absolute power to grant or refuse to grant, renew or refuse to renew, suspend, revoke, cancel of modify any licence under this order and the only thing he has to do is to record reasons for the action he takes. Not only so, the power could be exercised by any person to whom the State Coal Controller may choose to delegate the same and the choice can be made in favour of any and every person. It seems to us that such provision cannot be held to be reasonable.
No rules have been framed and no directions given on these matters to regulate of guide the discretion of the licensing Office Practically the order commits to the unrestrained will of a single individual the power to grant withhold or cancel licences in any way (sic) chooses and there is nothing in the order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same.
This decision, therefore, is another illustration of the doctrine that unrestricted and arbitrary power conferred on a single individual depending for its exercise on his will and pleasure in the circumstances is an unreasonable restriction on a citizen''s fundamental right at the mere fact that such an individual is under an obligation to give reasons for his active would not make it any the less unreasonable within the meaning of the Constitution.
The Supreme Court in Harishankar Bagla and Another Vs. The State of Madhya Pradesh, , sustained the constitutional validity of clause 3 of Cotton Textile (Control of Movement) Order 1948. The clause required a citizen to take a permit from the Textile Commissioner to enable him transport cotton textiles. It was contended (sic) the said provision infringed the rights of a citizen guaranteed under sub-clauses (f) and (sic) of Art. 19 (1) of the Constitution. In negating that argument, Mahajan C.J. observed at 640 (of SCJ) : (at P. 468 of AIR), as follows:
The policy Underlying the Order is to regulate the transport of cotton textile in a (sic)ner that will ensure an even distribution of commodity in the country and make it available at a fair price to all. The grant or refusal of permit is thus to be governed by this policy a the discretion given to the Textile Commissioner is to be exercised in such a way as effectuate this policy. The conferment of st(sic) discretion cannot be called invalid and if the is an abuse of the power there is ample po(sic) in the Courts to undo the mischief. Presumably appears from the different forms publish in the Manual, there are directions and rule laid down by the Central Government for the grant or refusal of permits.
At another place, the learned Chief Justice says:
The number of commodities held essential are mentioned in Section 2 of the Act and that requirement of a permit to transport such commodities by read or rail or other means of transport cannot, in any sense of the term, be said, en a temporary Act to be unreasonable restriction on the citizens'' rights mentioned in clauses (f) and (g) of Art 19 (1).
In that case, the Act was a temporary Act, the permit system was introduced to implement the policy underlying the order and the textile Commissioner''s discretion was regulated by the rules laid down by the Central Government. Having regard to the aforesaid circumstances, the Supreme Court held that the restrictions imposed are reasonable within the meaning of clause 5 of Art. 19 of the Constitution.
Before we close the discussion of the decided case, two Madras decisions decided by (sic) of us (The Chief Justice) may be briefly noticed. In Vedachala Mudaliar v. The State of Madras, 1951-2 Mad L. J. 411: AIR 1952 (sic)ad 276 (E), the manner of exercise of a statutory power by a quasi-judicial tribunal was indicated. There, the question was whether the government in the exercise of revisional jurisdiction had to give reasons for its disposal. At (sic) 417 (of Mad LJ): (at p. 280 of AIR), it was observed:
Further if reasons for an order are given, here will be less scope for arbitrary or partial exercise of powers and the order ex facie will (sic)dicate whether extraneous circumstances were taken into consideration by the tribunal a passing the order. The public should not deprived of this only safeguard unless the legislature expressed otherwise. I would, therefore, hold that the order of a Tribunal exercising judicial functions should ex facie show reasons in a sufficient form for setting aside the (sic)ders of the subordinate tribunals.
Narasimha Reddy v. District Magistrate, (sic)uddapah, 1953-1 Mad L.J. 418 : AIR 1953 Mad (6) (F), one of us (The Chief Justice) had to consider the constitutional validity of the order a District Magistrate refusing to give a (sic) without giving any reasons. At p. 422 of Mad LJ) (at p.478 of AIR), the following observations were made:
The Officer empowered to issue the licence a responsible officer of the Government the strict Magistrate. In his discretion, he may (sic)ve or refuse the licence. The discretion is obviously a judicial one his order is subject an appeal to the Revenue Board. When his under is subject to an appeal, it is his duty to (sic) reasons for his refusal for the appellate Tribunal must be in a positive to evaluate the correctness or reasonableness of his rejection." (sic) entirely agree with the aforesaid observation.
The following principles emerge from discussion of the aforesaid decisions. All citizens of India have a fundamental right to afire hold and dispose of property. But this is subject to control permitted by clause of Art 19 of the Constitution. That clause powers the State to impose reasonable resections on the exercise of'' such rights in the forests of the general public. There cannot hard and fast rule on the question of what (sic)trictions are reasonable. The reasonableness of a restriction depends upon the nature of the right claimed, the object to be achieved by the Act the means employed acid the limitations imposed.
They should be fair and commensurate with the purposes aimed at. Their variously should be tested by another yard-stick namely, whether they were conceived and enacted in the interests of the general public. The machinery provided by the restrictions should not confer an unregulated and arbitrary discretion on a single individual and the power conferred should not be far in excess of what is required in the interests of the public and for achieving the object for which the particular legislation was enacted. Legislative practice may provide different guides and checks for the exercise of individual discretion. The Act itself may prescribe the standard by which that discretion should be exercised or the statutory rules may afford a guide for its exercise. Such a power is almost always controlled by an appellate authority or by Civil Courts. Even if a statute does not in terms enjoin on the officer to give reasons for his order, it is implicit in the exercise of judicial or quasi judicial power that the person or tribunal exercising that power should give reasons, that is, should act judicially, particularly when his order is subject to an appeal. Even if a statute is not struck down as unconstitutional, particular orders made under that Act are liable to judicial review if the powers are exercised arbitrarily and capriciously and if they amount to unreasonable restrictions on the fundamental rights of citizens.
Bearing the aforesaid principles, we shall now proceed to consider the constitutional validity of the impugned provision. The short title of the Act reads:
An Act to prevent the indiscriminate destruction of private forests and interference with customary and prescriptive rights therein and for certain other purposes.
The Preamble of the Act says:
Whereas it is Necessary pending further legislation to prevent the indiscriminate destruction of private forests and interference with customary and prescriptive rights therein it is hereby enacted as follows.
Under Section 3(2) of the Act, presumably to carry out the aforesaid object, the persons mentioned therein are precluded from cutting trees or do any act likely to denude the forest or diminish its utility as a forest without the previous permission of the District Collector. Under the proviso nothing contained in the sub-section shall apply to the removal of dead or fallen trees or any act done for the usual or customary domestic purposes or for making agricultural implements. Section 4 says:
Any person aggrieved by an order under Clause (a) of sub-section (1) of section 3 or under sub-section (2) of that section in regard to the sanction or permission referred to in that clause or sub-section may, within two months of the receipt of such order, prefer an appeal in writing to the State Government. The State Government shall pass such orders on the appeal as they may think fit.
The State Government was empowered u/s 10 of the Act to make rules for carrying out the purposes of the Act. The State Government accordingly framed the following rules:
Nothing contained in these rules shall apply to (sic)
(a) the cutting of sandalwood trees, bamboos or palm trees, or
(b) the thinning of private plantations of teak, casuarina and eucalyptus without reference to the girth limits prescribed in Schedule 1 to those rules provided that such thinning is manifestly done for the silvicultural improvement of the crop or
(c) The cutting and removal of fuel, small timber and green manure leaf in head-loads for bona fide agricultural or domestic purposes but not for sale or
(d) the cutting and removal of fuel, small timber granted free of charge by the owner to poor people affected by floods or fires, or for charitable purposes.
The cutting of sandalwood trees in a forest and their transport outside it shall be governed by the rules in respect of sandalwood made under Sections 35 and 36 of the Madras Forest Act, 1882, in the areas in which those rules are in force.
(1) Before granting permission to cut trees by the clear felling methods in a forest, one or more compact blocks shall be selected so as to provide not less than seven annual coupes in respect of casuarina trees and eighteen annual coupes in respect of eucalyptus trees and in respect of other trees not less than
X X X X X
(b) Twenty five annual coupes in the case of any other forest.
A combined reading of the aforesaid provisions of the rules brings out the following salient features:
The Act was enacted as a temporary measure pending further legislation.
The object of the Act was to prevent indiscriminate destruction of private forests and interference with the customary and prescriptive rights therein.
The land holder or any person claiming under him was not completely excluded from enjoying the forest though certain limitations were placed on him.
The land holder could remove dead or fallen trees or do any act for his usual or customary dometsic purp oses or for making agricultural implements.
If he wanted to cut trees, he must take the previous permission of the Collector.
If the Collector refused to give him the permission, he could prefer an appeal to the Government.
Both the Collector as well as the Government on appeal exercised quasi judicial powers.
The rules provide for the filing of applications, the conditions to be imposed on the permission for cutting the trees under the clear felling method and the selection method, the considerations to be borne in mind by the District. Collector in granting the permission and the conditions to be imposed by him in issuing permits.
It is true, as the learned counsel for the appellant contends that the rules do not prevent the Collector from refusing a permit even if all the conditions prescribed in the rules are satisfied. But there is no reason to assume that a Collector, who is a responsible officer would arbitrarily and capriciously refuse permission notwithstanding the fact that all the conditions have been complied with by the appellant but even if he does so, his order is subject to an appeal to the State Government.
It is, therefore, clear that the Act is a temporary Act, that its policy is to prevent the indiscriminate destruction of private forests and interference with the customary rights of others for a temporary period, that the machinery provided for carrying it out is germane to that object, that the prevention of the cutting of the trees during the temporary period without affecting the customary rights of. the land holder is not a restriction in excess of the object to be achieved and that the conferment of Quasi judicial power on a responsible officer like the Collector subject to a right of appeal to the State Government having regard to the circumstance of the case is not a conferment of an arbitrary or capricious power.
Learned counsel for the appellants contends that though in terms the Act was intended to be temporary, the history of the legislation shows that the earliest Act, which was from time to time extended, was passed in 1946 and that though 11 years elapsed the promised Act has not come in the statute book. There is no doubt justification for this comment but in considering the constitutional validity of Section 3 (2) of the Act, we must take the conditions that were obtaining at the time the Act was passed and not the subsequent events. There, may be many reasons why there has been delay in passing the promised Act.
Nor can we accept the learned counsel''s contention that the legislature did not intend to make an Act to prevent the denudation of forests but contemplated the Act only to regulate the rights of land holders and ryots inter se in respect of their rights to forests. The reasons for the enactment of the Act are concisely given in the reasons for the re-enactment of the President''s Act XII of 1954. President''s Act XII of 1954 was passed as the life of the Act has to be extended from time to time. Therein, it is stated:
The Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949 was passed with a view to prevent the indiscriminate destruction of private forests and interference with the customary and prescriptive rights therein. It requires the previous sanction of the District Collector for selling, mortgaging, leasing or otherwise alienating private forests.
The Act applies to forests situated in estate as defined in the Madras Estates Land Act 1908 (Madras Act 1 of 1908) and also to private forests situated in other areas in the State of Andhra having a contiguous area of 100 acre which may be declared by the State Government to be forests for the purposes of the Act by notification in the Gazette.
The life of the Act was extended from time to time and on the last occasion when this was done up to the end December 1954. it was anticipated that a Bill which was then under contemplation for amending the Madras Forces Act, 1882, (Madras Act IV of 1882) and which was to embody inter alia the essential provisions of the Madras Preservation of Private Forests Act, would be passed into law before that date. This bill is, however, still under consideration. Apart from this, there are several estates which are yet to be taken over under the Madras Estates (Abolition and Conversion into Ryotwari) Act 1948 (Madras Act XXVI of 1948).
There are also several estates to which the Abolition Act aforesaid does not at present apply such as the estates in which both the melwaram as well as the kudivaram vest in the land holder etc. The need for preserving the forests in all such estates and for giving protection in respect of the private forests situated areas other than ''estates'' in the State, therefore remained as before. As the Madras Preservation of Private Forests Act, 1949, expired on the 2nd December, 1954, the provisions of that Act were re-enacted by President''s Act XII of 1954 and the life of this Act extends upto the 2nd December, 1956. As there is no change in the circumstances, which necessitated the enactment of this Act, the Government consider it desirable to re-enact this Act with the slight modification designed to extend the life of the Act upto the 2nd December, 1957.
It is clear not only from the provisions of the Act but also from the reasons for the re-enactment of the Act in 1954 that the object of the Act who not simply to regulate the rights of the disputants till some law regulating their rights was passed but its object was much more comprehensive. The Act dealt with not only forests in estates but also private forests situated in other areas. The Legislature intended to bring in legislation not only in regard to estates not covered by the Madras Estates (Abolition and Conversion into Ryotwari) Act but also to amend the Madras Forests Act, 1882.
The contemplated Act, therefore, was not only to regulate the rights inter se between contending parties namely land holders and ryots but also to prevent the denudation of forests. An anticipation of the Act, as a temporary measure, the land holders were prevented from putting the trees without the previous permission of the Collector. We, therefore, hold that the restriction is not in excess of the requirements for carrying out the object of the Act and that section 3(2) of the Act is constitutionally valid.
Learned counsel then argued that the orders of the Collector are arbitrary in as much (sic) they did not give any reasons for refusing (sic) permission. But it was conceded that (sic) hors the validity of the statutory provision the validity of the orders was not questioned before Chandra Reddi J. If really the orders were defective, the appellants could have preferred statutory appeals to the Government and obtained the necessary relief. We are therefore it justified in allowing the appellant to raise is contention for the first time before us.
Lastly, learned counsel contends that one of the appeals the question of the Constitutional validity of Section 3(1) arises for consideration. But it is not necessary to excess our view on that question as in all the cases the permits were refused by the Collector (sic)ether the application was made by the lessee land holder u/s 3(1) or 3(2) of the Act. As we have held that section 3 of the Act was valid, the orders are not liable to set aside.
For the aforesaid reasons, we hold that the provisions of Section 3(2) of the Act do (sic) infringe Art. 19 (1) of the Constitution of India and therefore are valid.
The appeals fail and are dismissed in costs. Advocate''s fee Rs. 100/-.