K.C. Agrawal, C.J.
1. This writ petition challenges the validity of the Rajas-than Forest Produce (Establishment and Regulation of Saw Mills) Rules, 1983 (hereinafter referred to as 'Rules of 1983) framed by the State Government in exercise of powers conferred by Sections 41 and 42 of the Rajasthan Forest Act, 1953 (hereinafter referred to as the 'Act1).
2. The petitioner is an Association of ,Aara Machinery and Lakri Vikreta Sangh and all those who are engaged in this business in the district of Nagaur are its members. The association looks after the interest of its members.
3. In exercise of power conferred by Sections 41 and 42 of the Act, the State Government made the rules to provide for the establishment and regulation of saw mills. Rule 3 of the Rules of 1983 is as under :--
'(i) No person or authority shall, after the commencement of these Rules, establish any new saw mill except under and in accordance with a permit granted under Rule 4.
(ii) No owner of a Saw Mill:--
(a) in respect of which a licence has been granted under Rule 7, shall carry sawing operation in that mill after the licence has ceased to be valid;
(b) in respect of which the' licence has' beencancelled or suspended under Rule 7 shallcarry on sawing operation or suspension, asthe case may be, during the period for whichthe' licence has b6en suspended.
To give effect to provisions of this clause thelicensing officer shall take such steps which he thinks necessary in this regard, including sealing of saw mill with or without its accessories 'to stop' sawing operation.
(iv) No saw mill owner shall receive any, timber from any customer for sawing on hire unless he furnishes a certificate of rightful ownership issued by a Revenue Officer not below the rank of a Tehsildar, or any officerauthorised in this behalf.
For the purpose of meeting the requirementcontained in this clause, the following certi-ficates of origins shall be considered as certificate of rightful ownership--
(a) transit pass, issued by the Forest Deptt.
(b) permission issued by Collector to the land holder under the provisions of LandRevenue Act or Tenancy Act;
(c) certificate from Gram Panchayat Tortimber obtained from the trees standing in theland holding of Gram Panchayats; for feltingfor which the permission of the Collector isnot required; . '
(d) certificate from any competent auth-ority if the timber which has been brought forsawing belongs to a Govt. Department, or apublic sector undertaking.
(v) It shall be the duty of the saw mill owner to inform the nearest officer of the Forest or Police Department about any timber brought by any customer without any legal permit.
(vi) No owner of saw mill
(a) shall without the previous permission of the Government, change the location of the whole or any part of saw mill in respect' of which a permit has been granted under, Rule4;
(b) shall, after the commencement of theserules, effect any expansion or production! ofdiversification of capacity of the saw mille,xcept with the previous, permission, of thelicensing officer.'
4. Rule 4 provides that any person; who is interested for the grant of permit for, the establishment of a new timber saw mill may make an application for the grant of the same in the prescribed pro forma. Rule 6 lays down the fee which would be necessary for the purposes of fee and security. Under Rule 9, the customers getting their timber sawn-at the sawmill are bound to furnish to the saw mill owner a certificate mentioned in Clause (iv) of Rule 3 regarding rightful ownership of the timber brought for sawing. By Rule 10, the power of inspection for ascertaining the position or examining the working of any saw mill has been conferred on forest officers or the licensing officers in this behalf.
5. The petitioner has claimed that the rules are beyond Sections 41 and 42 of the Act and, therefore, they are invalid. The petitioner also claimed that the rules framed by the State Government impose unreasonable restrictions on the trade and profession of the petitioner and they are in contravention of Article 19 of the Constitution of India.
6. ' In the counter affidavit filed on behalf of the State of Rajasthan, justification for the rules has been made. It has been averred that illicit felling of trees was leading to deforestation of waste land, forest land and agri-cultural land of the State, particularly those situated in the desert region. Most of the illicit felling was on account of saw mills where the timber for sawing purpose is sold and easily Converted. It was for this reason that the State Govt. thought that running of saw mills was required to be controlled and regulated. These rules controlled the transit of timber and other forest produce to put a check at a point of saw mill.
7. The'validity of the aforesaid rules has been challenged mainly on 'the followinggrounds:--
(i) Establishment of saw mill for general business.
(ii) Establishment of saw mill exclusively for private use in timber business; and
(iii) rule 2 of the Rajasthan Forest (Pro-duce Transit) Rules, 1957 is challenged which prohibits movemet of forest produce with out obtaining transit pass from the Forest Officer.
8. Learned counsel for the petitioner, in support of the grounds stated above, con-tended that the conditions laid down for sawing the timber are unreasonable and they infringe the fundamental rights of the petitioner to carry on the trade and business, which is guaranteed by Article 19(1)(g) of the Constitution.
9. Apart from challenging the validity of the aforesaid Rules, the petitioner has also challenged the validity of Rule 2 of Rajasthan Forest (Produce Transit) Rules, 1957 (hereinafter referred to as the 'Transit Rules'). By this rule, the movement of timber has been regulated. This runs as under:--
'No forest produce shall be moved into or from or within any area in the State of Rajasthan except as hereinafter provided without a pass issued by a forest officer or person duly authorised by or under these rules or otherwise than in accordance with the condition of such pass or by any route or to any destination other than the route and destination specified in such pass;
Provided that no pass shall be required for the removal of any forest produce....'
10. Rules of 1983 regulate and control the transit of timber and other forest produce. This was framed with an object to put a check at the point of saw mills where timber is taken. The rules required that a saw mill owner cannot accept or buy the timber from a.ny person, who does not have a permit or certificate issued by the officer empowered to do so. These rules are also made to achieve the object of Article 51A of the Constitution, which was inserted by the Constitution (42nd Amendment) Act, 1976. The relevant portion of Article 51A is quoted below:--r,'
'It shall be the duty of every-citizen ofIndia--
' (a) to (f)............:..
(g) to, protect and improve the natural environment including forests 'fakes', rivers and wild life, 'and to 'have compassion! forliving creatures;.....'
11. Article 51A, appears to, be, in pursuance of the following observations made by the Supreme Court in Chandra Bhavan v. State of Mysore, AIR 1970 SC 2042 ; 19.70 LabIC 1632:--
'It is a fallacy to think,, that under ourConstitution there are only rights and no duties. The provisions in Part IV enable the Legislatures to impose various duties on the citizens. The mandate of our Constitution is to build a welfare society and that object may be achieved to the extent the Directive principles are implemented by legislation.'
12. Having regard to Article 51A(g), the Hon'ble Supreme Court issued directions to the State cases to keep Article 51A(g) in view.
13. Learned counsel for the petitioner contended that to run an industry or business of saw mill, every person is required to obtain a licence under Rule 4, which places unreasonable restrictions on the right of a person desiring to instal a saw mill. Such a requirement does not serve the objects sought to be achieved by the Rules of 1983. In support of his submission, the learned counsel cited a number of case laws and vehemently argued that the rules framed by the State Govt. under Sections 41 and 42 of the Act being against the provisions of law, the same are ultra vires.
14. We are, however, unable to find any substance in the aforesaid submission of the learned counsel for the petitioner. The object behind regulating the saw mills and its activities is to prevent illicit felling of trees on account of which ecological problems and many others had cropped up. Felling of trees is likely to be controlled by regulating the trade of timber cutting by the saw mill owners. The State Government will have the power to prosecute a person who does it without obtaining prior permission. The case of the petitioner that there is absolute bar to the cutting of timber is not correct. This can be found from the conditions as enumerated in Rule' 24(H) of Rajasthan Tenancy Government (Amendment) Rules, 1977, which are quoted below:
(i) if it will help any work of construction by and on behalf of the village community or
(ii) if such removal is necessary for the extension of cultivation or other agricultural' activities of the tenant or
(iii) if it will mitigate any real existinggrievance of the tenant or
(iv) if the existing trees are dried up and their removal is in the interest of plantation of new trees or
(v) in the case of fruit trees, if such trees have become over mature and rot and deterioration having set in or
(vi) if such trees are so dense that they affect the fertility of the soil or otherwise cause damage to the soil or standing crops, if there be any.'
15. Any customer who brings goods to the saw mills for cutting, has to show that the felling of the trees took place under the permission of the authorities and for this purpose, he will have to obtain the necessary certificate from the authority concerned. In our opinion, the Govt. have put a check on the felling of indiscriminately trees, which is necessary for effectually implementing the rules.
16. So far as the contention of the learned counsel for the petitioner regarding infringement of the right guaranteed under Article 19(a)(g) of the Constitution is concerned, the freedom given by Article 19(l)(g) means that - every citizen has the right to practice any profession, or to carry on any occupation, trade or business subject to the restriction as may be required in the public interest. requirement of obtaining permission cannot mean 'unreasonable restriction' in the enjoyment of a right for carrying on a trade orbusiness by a person.
17. Learned counsel for the petitioner next urged that the Transit Rules hit Articles 301 and 304 of the Constitution. We are not inclined to accept this submission as well. The freedom under both Articles 19(l)(g) and 301 is subject to certain restrictions imposed, by the State which must be reasonable and not arbitrary or excessive. These regulatory measures do not constitute restrictions, under either provision. There is a violation of the freedom guaranteed by Article 301 only where a legislative or executive act operates to restrict trade, commerce or intercourse, directly and immediately, as distinct from creating someindirect or inconsequential impediment which may be regarded as remote. It follows that regulatory or compensatory measures cannot be regarded as violative of the freedom (see State of Madras v. Nataraja, AIR 1969 SC 147; Lakshaman v. State of M. P., AIR ' 1969 SC 656 (sic) and Krishnan v. State of T.N., AIR 1975 SC 583 :1975 Tax LR 1361). So long, a rule or regulation is regulatory, it will not offend against the freedom guaranteed by Article 301. The same tests, which are applicable to determine reasonableness under Article 19(6) are also applicable to determine reasonableness under Article 304(b). An imposition of restriction requiring a person to obtain a permission from the proper authority for cutting trees cannot be held to be unreasonable. Consequently; we are not satisfied that the Rules framed by the State Government in exercise of power conferred by Sections 41 and 42 of the Act, in any way, are in contravention of the provisions of the Constitution of India.
18. Learned counsel fo'r the petitioner cited as many as 14 rulings of the Supreme Court' and we have'examined all those cases. 'We are unable to uphold the submission that the timber Rules are invalid having exceeded the rule making power or are in violation of any of the provisions of the Constitution. They are well within the powers conferred under the Act. They do not transgress any of the powers of the Act,
19. Section 78 of the Act though incorpo-rates that the rules shall be of the same effectas if they are contained in the Act, but this'cannot be given any other construction thanthis that they/shall for all purposes of con-struction' be treated exactly as if they were in'the' Act. In other' words, if validly made therules are to 'be give the same effect as theprovisions of the Act. The true position is thatthe Rules 'and Regulations do not lose their'character rules and regulations, 'eventhough they are 'to be of the same effect as if'contained in the 'Act'. They continue' to berules subordinate to the Act. No additionalsanctity attaches to those' which under theprovisions of statute of a' statute are to have the effect'as if enacted in the Act.' This clause' goes' hofurther than saving the intra vires rules. The rules made in exercise of a delegated authority to that effect must be consistent with the statute under which they came to be made. It is, therefore, absolutely necessary that the rules framed under an act must be consistent with the Act and a forced or unnatural construction must not be put upon the language of the Act in order to bring it into conformity with the rule.
20. The test to apply in considering whether rules are within the powers of the rule making authority under the stature are : (1) whether the rules are reasonable and convenient for carrying the Act into full effect, (2) whether the rules relate to matters arising, under the provisions of the Act, (3) whether they relate to matters not in the Act otherwise provided for and (4) whether they are consistent with the provisions of the Act. The basic law applicable for interpretation of the rules is whether it confers right or merely regulates procedure.
21. After examination of the rules, we are satisfied that the power given covers the purported exercise of it and that no other provision in the Rajasthan Forest Act, 1953 is being infringed.
22. Another aspect of the controversymay now be considered and that is whetherthe rules challenged are prohibitive or regula-- tory. This controversy was considered by theHon'ble Supreme Court in the followingcases.
23. In, Automobiles Transport v. State ofRajasthan, AIR 1962 SC 1406, the Hon'bleSupreme Court, held that if a provision, isregulating, then it is valid but if it is prohi-bitive, then it is invalid. The relevant portion'of that decision is quoted below (at page1430):-
'Restrictions obstruct the freedom whereas regulations promote it. Police regulations, though they may specifically appear to res- trict the freedom of movement in fact provide ' ,the necessary conditions for the free movement. Regulations such as provision for lighting, speed, good conditions of vehicles, :'timins fule of the road and similar 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 road, waterways and airways 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'.
24. In our view, the rules challenged by means of this petition, are not prohibitive butthey are regulatory.
25. In state of Mysore v. Sanjeeviah, AIR 1967 SC 1189, it was held by the Supreme Court that (at page 1191):--
'Power to impose restrictions of the naturecontemplated by the two provisos to Rule 2 isnot to be found in any of the clauses of Sub-section (2) of Section 37. By Sub-section (1), the State Govt. isinvested with the power to regulate transportof forest produce 'in transit by land or waterThe power which the State Govt. may exer-cise is, however, power to regulate transportof forest produce, and not the power toprohibit or restrict transport. Prima facie, arule which totally prohibits the movement offorest produce during the period between sunset and sun rise is prohibitory or restrictive ofthe right to transport forest produce. A ruleregulating transport forest produce in itsessence, permits, transport subject to' certainconditions devised to promote transport;such a rule aims at making transport orderlyso that it does not harm or: endanger otherpersons, following a similar vocation or thepublic and enables transport to functiont forthe public good.'
26. Aforesaid two decisions of theHon'ble Supreme Court negative the 'chal-Henge of Rule 2 of Transit Rules.
27. The alidity of the Transit Rules had been challenged before one of us in S. B. Civil Writ Petition No. 1776 of 1985. The challe'nge was repelled by the judgment dated'1-10-1985. We are in respectful agreement with the view taken in that case.
28. In view of what has been discussed above,we find no force in this writ' petition and it is dismissed without any order as to costs.