STATE OF MYSORE versus H. SANJEEVIAH

Citation: [1967] 2 S.C.R. 361 · Decided: 16-01-1967 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Dismissed

Cited by 7 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A 
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H 
STATE OF MYSORE 
v. 
H. SANJEEVIAH 
January 16, 1967 
[K. SUBBA RAO, C. J., J.C. SHAH, S. M. SIK.RI, V. RAMASWAMI 
AND C. A. VAIDIALINGAM, JJ.j 
Madras Forest Act (II of 1900), s. 37-Power to make rules regulat-
ing 
transit of forest 
produce-Rule 
2, 
provisor-:-1 hese 
pro.h.ibiiing 
removal of forest produce b!!tween 10 p.1n. and ~un-r1~·e and cond~tionally 
permitting removal between sun-set and 10 0.111.-.Sucll restrlction..r; <>n 
contractors whether prohibitory .or regulatory-Whether within rule mak-
ing power. 
Constitution of India, Arts. 301, 304, 305-Freedom of trade-Pro-
viso to Rule 2 framed under s. 37 of Madras Forest Act whether restric-
tive of such freedom, whet Im saved by Art. 304-W hetlier 'existing /aw' 
for the purpose of Art. 305. 
Section 37 of the Madras Forest Act, 1900, gave power to the State 
Government to make rules regulating the transit of forest produce. Rule :Z. 
fr;.med thereunder prohibited the removal of forest produce without a 
permit. After the promulgation of the Constitution in 1950 two provisos 
were added to the said rule the first of which prohibited the issue of 
permits allowing forest produce to be removed between sun-set and sun-
rise, while the second permitted such removal between 
sun-set and !O 
p.m. on certain conditions. The respondent who was a forest contractor 
filed a writ petition in the High Court challenging the validity of the pro-
visos on the ground that they were beyond the rule making power under 
s. 37 of the Madras Forest Act and were restrictive of his freedom of 
trade and commerce declared by Art. 301 of the Constitution. The peti-
tion was allowed and the State appealed. 
HELD: (i) Power to impose restrictions of the nature contemplated 
by the two provisos to r. :Z. is not to be found in any of the clauses of 
sub-s. (2) of s. 37. By sub-s, (l) the State Government is invested with 
the power to "egulate transport of forest produce "in transit by land or 
water." The power which ti-c State Government may exercise is however 
power to regulate transport of forest produce, and not the power to pro-
hibit or restrict transport. 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 
i conditions devised to pwmote transport: such a rule aims at making trans-
port 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 good. [364 G-H; 365 A] 
Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, [1963] 
1 S.C.R. 491, relied on. 
· 
If the ll_rovisos are in truth restrictive of the right of transport of the 
~ores! produce, however good the grounds appa·rently may be for restrict-
mg the transport of forest produce. they cannot on that account tram-
form the power conferred by the provisos into a power merely regulatory 
~~ 
-
. 
(ii) Article 301 in terms prohibits the impos;tion of any restriction 
on trade, commerce and intercourse throughout the territory of India and 
361 
361 
SUPREME COURT REPORTS 
[1967] 2 S.1;;.R. 
by the enactment of the two provisos clearly restriction is imposed on the 
freedom of trade. The provisos to the rule 
must therefore be deemed 
to be invalid as infringing the guarantee under Art. 30 I of the freedom 
of trade commerce. and intercourse. (366 C-D] 
The provisos were not protec:ed by Art. 305. Section 37 which 
conferred power to make rules was .. existing law" within the moaning of 
that expression in Art. 305 but the rules made in exercise of that power 
after the Constitution cannot be deemed to be 
0 cxisting law". The mere 
fact that there was authority in the State under a pre-Constitution 
Act 
to make 
rules which may impose restrictioQS 
o_n trade, commerce and 
intercour~. but which was not exercised, will not make the rule made 
in exercise of the authority after the Constitution .. existing law" within 
the meaning of the Constnution. (366 G] 
Ka/vat1i Stores v. Stale of Orissa, A.LR. (1966) S.C. 1686, relied on. 
Kasi Prasad v. Sate of Orissa, A.1.R. <!963) Orissa 24, disapproved. 
Article 304 which is an exception to Art. 301 had no application to 
the case because that Article saved cenain laws from the operation of 
An. 301 if the law was passed by the

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