SHAJI P. CHALY, J.
1. The captioned writ appeals are filed by one and the same appellant challenging the common judgment of the learned single Judge dated 31st March, 2021 in W.P.(C) Nos. 36021 of 2019 and 21156 of 2018 respectively, in which an e-auction proceedings issued by the Range Forest Officer, Marayoor, Munnar, Idukki District, in regard to the sale of 71.953 tonnes of sandal wood, and also the constitutional validity of Sections 47C and 47F of the Kerala Forest Act, 1961 ('Act, 1961' for short) and the Rules thereto respectively were challenged.
2. Therefore, we heard them together and proposed to pass this common judgment. Insofar as W.A. No. 1051 of 2021 is concerned, challenge was made in the writ petition to Ext.P7 invitation dated 16.12.2019 issued by the Range Officer, Marayoor, Munnar, Idukki District for e-auction sale of an approximate quantity of 71.953 tonnes of sandal wood, which was scheduled to be held on 08.01.2020 and 09.01.2020.
3. In fact, there was no stay of the auction proceedings and virtually, the subject matter of the said writ petition has become infructuous in the sense that e-auction proceedings were already completed by virtue of Ext. P7 invitation. Therefore, we confine our consideration to the challenge made by the appellant to the constitutional validity of Sections 47C and 47F of the Act, 1961, in W.A. No. 1054 of 2021.
4. Brief facts leading to the filing of the writ petition leading to the said appeal are as follows:
The appellant is the Managing Partner of a firm, which according to him, is one of the largest dealers/suppliers of sandal wood, sandal oil and related products to different perfumery and cosmetic industries in India as well as abroad.
5. The Act, 1961 was amended by the Kerala Forest Amendment Act, 2010 and consequential Rules were framed namely the Kerala Forest (Restriction on cutting and selling of sandal trees and grant of license for possession and transport of sandalwood and sandalwood oil), Rules, 2012 ('Rules, 2012' for short). The said amendment has introduced Sections 47C and 47F into the Act, 1961.
6. The further case of the appellant is that for giving effect to the said provisions, in the Rules, 2012, Rules 6 and 7 were introduced. The sum and substance of the contention advanced by the appellant is that the binding effect of the said provisions of the and the Rules is that there is a total prohibition of private players coming into the field of handling sandalwood and its products in the State, including a total prohibition of trade in such products, including inter State trade. Therefore, the validity of the aforesaid provisions are challenged, as the same are ultra vires the provisions of Article 304(b)">Article 304(b) of the Constitution of India, basically dealing with 'the restrictions on trade, commerce and intercourse among States'.
7. The further case of the appellant is that Article 301 of the Constitution of India specifies that subject to the other provisions of that Part (Part XIII), trade, commerce and intercourse throughout the territory of India shall be free. It is further submitted that Article 302 authorises the Parliament to make laws imposing such restrictions on the freedom of trade, commerce or intercourse. Article 304 enables the Legislature of a State in making laws restricting trade, commerce or intercourse among States. However Article 304(b)">Article 304(b) permits the State Legislature to make any laws imposing such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest.
8.The basic contention advanced by the appellant is that even though the State is vested with powers to impose reasonable restrictions on the freedom of trade, commerce, intercourse etc., the proviso to Section 304(b) makes it clear that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President. Therefore, according to the appellant, no previous sanction of the President was secured before amending the Act, 1961 and introducing Sections 47C and 47F into the Act, 1961, whereby the restrictions are created on the freedom of trade, commerce or intercourse within or outside the State. It is, therefore, contended that the said provisions and the relevant Rules of 2012 are arbitrary and unconstitutional.
9. The learned single Judge, after taking into account the contentions put forth by the appellant as well as the State, has arrived at the following conclusions, while dismissing the writ petitions:
14. The petitioner would contend that Sections 47(C) (i) and (ii) and Section 47F of the Kerala Forest Act, 1961and the Kerala Forest (Restriction on Cutting and Selling of Sandal Trees and Grant of Licence for Possession and Transport of Sandalwood and Sandalwood Oil) Rules, 2012 offend the fundamental right guaranteed to the petitioner under Article 19(1)(g)">Article 19(1)(g) of the Constitution. The question therefore is whether the petitioner has a fundamental right to trade in sandal or sandalwood oil.
15. Restriction on cutting and selling of Sandalwood trees and grant of licence for possession and transport of Sandalwood and Sandalwood Oil has been introduced to curb the rampant felling, smuggling and illegal trade of Sandalwood and Sandalwood oil within and across the State and similar legislative interventions are made in the States of Karnataka, Tamil Nadu, etc. as per the directions of the Apex Court in Godavarman Thirumulpad T.N. (Supra). In the said case, the Apex Court held that “We are also inclined to give a direction to the Central Government to formulate a policy for conservation of sandalwood including provision for financial reserves for such conservation and scientific research for sustainable use of biological diversity in sandalwood. Central Government would also formulate rules and regulations under Sections 3 and 5 of Environmental Protection Act, 1986 for effective monitoring, control and regulation of sandalwood industries and factories and that it should also formulate rules to ensure that no imported sandalwood is sold under the name of Indian sandalwood and adequate labelling to this effect be mandated for products manufactured from or of import of sandalwood. States are directed to immediately close down all unlicensed sandalwood oil factories, if functioning and take effective measures for proper supervision and control of the existing licensed sandalwood oil factories in states.”
Thus, in tune with the directions of the Apex Court in this regard, various States have formulated their own policies, rules and laws to deal with the situation. Sections 47C and 47F and the 2012 Rules were framed to deal with illicit felling, removal and distillation of sandalwood, smuggling of the sandalwood and its products, in the State of Kerala. The legislative intention is to deal with the above situations as directed by the Apex Court.
16. Sandalwood oil is a forest produce falling within the definition of Section 2(f) of the Kerala Forest Act, 1961 as held by the Hon'ble Apex Court in Forest Range Officer v. Mohammed Ali [1993 Supp (3) SCC 627]. In the judgment in Godavarman Thirumulpad T.N. (supra), the Hon'ble Apex Court has directed the Central Government to examine the issue of inclusion of sandalwood in Schedule VI of the Wild Life (Protection) Act, 1972 in consultation with National Board of Wild Life (NBWL) and to take a decision within a period of six months as to whether it is to be notified as a specific plant and be included in Schedule VI of the. The Hon'ble Apex Court also directed the Central Government to formulate a policy for conservation of sandalwood including provision for financial reserves for such conservation and scientific research for sustainable use of biological diversity in sandalwood and also directed the Central Government to formulate rules and regulations under Sections 3 and 5 of Environment Protection Act, 1986 for effective monitoring, control and regulation of sandalwood industries and factories. It was also directed that the Government should formulate rules to ensure that no imported sandalwood is sold under the name of Indian sandalwood and adequate labelling to this effect be mandated for products manufactured from or of import of sandalwood.
17. States were also directed to immediately close down all unlicensed sandalwood oil factories, if functioning and take effective measures for proper supervision and control of the existing licensed sandalwood oil factories in States. The Hon'ble Apex Court has also expressed its hope that the parliament would bestow serious attention regarding framing of a new legislation in this regard. It is also relevant to note that the Hon'ble Apex Court has observed that the Central Empowered Committee and the States of Tamil Nadu and Kerala have produced enough materials to show that the sandalwood trees are critically endangered and illegal felling and trade are going on unabatedly. Regulation on cultivation and use of sandalwood would definitely be in the public interest and therefore constitutional.
18. In the light of the directions of the Hon'ble Apex Court and consequential amendments to statutory framework regulating sandalwood, the trade in sandalwood and sandalwood oil has attained the status of “Res extra Commercium.”
19. The rights protected by Article 19(1)">Article 19(1) are not absolute. The right therefore is to be read along with the qualifications contained in Articles 19(2)">Articles 19(2) to 19(6). The right to practice any profession or to carry on any occupation, trade or business does not extend to practising a trade in a critically endangered forest species. In respect of such species, the State can create monopoly either in itself or in an agency created by it. The State can impose limitations and restrictions on the trade of sandalwood or sandalwood oil. The restrictions and regulations introduced by Sections 47C and 47F are reasonable and in public interest. Such restrictions cannot be said to be offending the fundamental right of the petitioner under Article 19(1)(g)">Article 19(1)(g) of the Constitution of India.
20. The further argument is that Sections 47C and 47F are hit by Article 304 of the Constitution of India. Article 304 of the Constitution reads as follows:
“304. Restrictions on trade, commerce and intercourse among StatesNotwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law-
(a) impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and
(b)impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest:
Provided that no Bill or amendment for the purposes of clause shall be introduced or moved in the Legislature of a State without the previous sanction of the President.”
The argument is that Sections 47C and 47F could not have been brought into the statute book without the previous sanction of the President.
21. It is to be kept in mind that the sandalwood tree is a critically endangered species. Therefore, there does not arise any question of fundamental right to free trade and business in sandal tree, sandalwood oil and other sandalwood products. Articles 301 to 305 are intended to ensure free trade and to regulate legislative restrictions on free trade, commerce and intercourse among States. Article 305 would apply only to those trades which the citizens have right to engage in, without restrictions. As this Court has found that no one has a fundamental right to carry on trade or business in sandalwood, sandalwood oil and other sandalwood products, it being opposed to public policy and public interest, the petitioner cannot be heard to contend that Sections 47C and 47F do not satisfy the requirements under Article 305(b)">Article 305(b).
For the afore reasons, this Court finds that the writ petitions are devoid of any force or merit. The writ petitions are therefore dismissed.”
It is, thus, challenging the legality and correctness of the findings rendered by the learned single Judge, so far as concerning the challenge made to the constitutional validity of the said provisions, the writ appeal in question is filed, and the learned Senior counsel has confined his arguments solely to that point.
10. We have heard, learned Senior Counsel Sri. Kurian George Kannanthanam assisted by Sri. Babu Joseph Kuruvathazha for the appellant, Sri. Manu S, learned Assistant Solicitor General of India along with Sri Jai Shankar V. Nair, Central Government Counsel appearing for the Union of India and its officials— respondent Nos. 1 and 2, Sri. T.P. Sajan, learned Special Government Pleader for the State and its officials— respondent Nos. 3 to 6, and perused the pleadings and material.
11. The learned Senior Counsel has advanced arguments on the basis of the contentions recorded above. The gravamen of the contentions revolves around the constitutional validity of Sections 47C and 47F of the Act, 1961 and they read thus:
“47C. Prohibition of possession and transport of sandalwood and sandalwood oil.—(1) Notwithstanding anything contained in any law for the time being in force or in any Judgment, decree, or order of any court, no person shall, —
(i) possess or transport any quantity of sandal wood in excess of one kilogram; or
(ii) possess or transport any quantity of sandalwood oil in excess of one hundred millilitre :
“Provided that the authorised officer may issue license for the possession or transport of sandalwood in excess of one kilogram to religious institutions, artisans, licensed manufacturers and registered practitioners of indigenous medicines or any corporation or society owned or controlled by the Government for their bona fide purposes, on payment of such fees, in such manner and subject to such restrictions and conditions as may be prescribed:
Provided further that the authorised officer may issue license for the possession or transport of sandalwood oil in excess of one hundred millilitre to the licensed manufacturers of cosmetics, drugs and other material in which sandalwood oil is an essential ingredient, for their bona fide purposes, on payment of such fees, in such manner and subject to such restrictions and conditions as may be prescribed.
(2) Notwithstanding anything contained in any law for the time being in force or in any judgment, decree or order of any court, no person except the Government or public sector undertakings owned by Government shall disintegrate or attempt to disintegrate sandalwood in mills or by other contrivance, manufacture or distil, or attempt to manufacture or distil oil from sandalwood or redistil, refine or sell oil extracted from sandalwood.
(3) The authorised officer may cancel or suspend any license granted under subsection (1), if he is satisfied, after giving an opportunity to the holder thereof being heard, that the licensee has contravened, or failed to comply with any of the provisions of this Chapter or the rules made thereunder or any of the terms and conditions of the license.
(4) Any person aggrieved by the decision of the authorised officer refusing to grant or renew a license or cancelling or suspending such a license under this section may, within such time as may be prescribed appeal to the Government and the Government may make such order as they may think fit.
47F. Restriction on purchase, sale etc. of sandalwood and sandalwood oil.— (1) No person shall purchase, receive or acquire sandalwood or sandalwood oil otherwise than from the Government or the authorised officer or public sector undertakings owned by Government or any other agency authorised by Government on this behalf
(2) No licensee under this Chapter, shall keep in his control, custody or possession or acquire, receive, sell or offer for sale or process or transport sandalwood or sandalwood oil except in accordance with the conditions of the license granted.”
12. On a reading of the clauses (i) and (ii) of Section 47C (1) of Act 1961, it is clear that notwithstanding anything contained in any law for the time being in force or in any judgment, decree, or order of any court, no person shall possess or transport any quantity of sandal wood in excess of one kilogram; or possess or transport any quantity of sandalwood oil in excess of one hundred milliliter, subject to the exceptions carved out as per the proviso to the said Section.
13. Section 47F (1) makes it clear that no person is entitled to purchase, receive or acquire sandalwood or sandalwood oil otherwise than from the Government or the authorised officer or public sector undertakings owned by Government or any other agency authorised by Government on that behalf; and other restrictions are also incorporated in sub-Section (2) thereto.
14. The basic contention advanced by the State is that the Act, 1961 was amended in 2010 with a view to impose control over the illicit felling, removal and distillation of sandalwood and smuggling of the sandalwood products in the black market and the Rules, 2012 was enacted for implementing the provisions of the Act, 1961 on account of the amendment made to the Act, 1961. It is further contended that due to the introduction of the amendments and the Rules, 2012, illicit felling and removal of sandal wood trees from the Government and private lands were considerably reduced; and that if any other person or firm other than the Government or agency authorised by the Government is permitted to conduct sale of sandalwood or sandalwood products in tune with the contentions advanced by the appellant, illicit felling of sandal trees from the State will increase disproportionately and the sandal mafia will re-establish in Kerala.
15. It is further submitted that Chapter VIA containing Sections 47F and 47H was introduced into the Act, 1961 with the objective of imposing regulations on the possession and transport of sandalwood and sandalwood oil in the State. That apart, it is submitted that by virtue of Section 47C, religious institutions, artisans, licensed manufacturers and registered practitioners of indigenous medicines or any corporation or society owned or controlled by the Government for their bona fide purposes are permitted to possess or transport sandalwood oil above the specified quantity only on the basis of the licence issued by the authorised officer.
16. The learned Special Government Pleader Sri. T.P. Sajan further contended that by virtue of Article 19(6)">Article 19(6) of Part III of the Constitution of India, the State is vested with powers to impose restrictions by making any law in the interest of the sovereignty and integrity of India or maintaining public order etc. The sum and substance of the contention advanced by the learned Special Government Pleader is that Sections 47 C and 47 F of Act, 1961, are only a reasonable restriction to regulate and control, possession and transportation of the sandalwood and sandalwood oil in the State with the noble intention of preventing smuggling of sandalwood and sandalwood oil from the State by unauthorised persons. Therefore, according to the learned Special Government Pleader, the said provisions are intra vires the Constitution of India and the Rules are made to translate the true intention of the aforesaid provisions and the judgments of the Honourable Apex Court referred to by the learned Single Judge.
17. We have evaluated the rival submissions made across the Bar, and perused the pleadings and materials on record.
18. The question that emerges for consideration revolves around Articles 301 to 304 of the Constitution of India. It is true, Article 301 enables the citizens to carry on trade, commerce and intercourse through the territory of India freely. However, Article 302 empowers the Parliament by law to impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest.
19. It is also clear from Article 304 that the Legislature of a State is entitled to make restrictions on trade, commerce and intercourse among States made by law. Clause (b) of Article 304 empowers the State to impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest.
20. Therefore, we have no doubt in our mind that the Legislature of a State is vested with ample powers to make laws reasonably restricting the freedom of trade, commerce or intercourse with other States or within that State in public interest. Therefore, there is force in the contention put forth by the learned Special Government Pleader that Sections 47C and 47F are incorporated in the Act, 1961 in public interest. Taking into account the value, importance and relevance of sandalwood, we are of the view that the contention of the State that the provisions under challenge are only reasonable restrictions under Article 19(6)">Article 19(6) of the Constitution, appears to be correct. But, the question is whether any previous sanction was secured from the President in contemplation of Article 304(b)">Article 304(b) of the Constitution of India, which, from the phraseology employed therein, is a mandatory Constitutional requirement liable to be followed by the State Legislature. This we say because, the State has failed to establish before the writ court that it has secured the assent of the President of India before introducing the amendments under challenge; however, the learned Single Judge held that since the sandalwood being a forest produce requires regulatory methods in its manufacture, possession and sale, and therefore the contention raised in regard to the assent may not be of much relevance.
21. This writ petition was heard on 17.03.2022 and the matter was adjourned for orders. Thereafter, the learned Special Government Pleader for Forest had represented before court that in pursuance of the proviso to clause (b) of Article 304 of the Constitution of India, the Hon'ble President of India, as per order dated 14.01.2005, has given assent for the introduction of the Kerala Forest (Amendment) Ordinance, 2004 and the Bill was introduced as the Kerala Forest (Amendment) Bill, 2008 in the 12th Kerala Assembly as Bill No. 200 and promulgated as Kerala Forest (Amendment) Act, 2010 and published in the Extraordinary Gazette No. 1077 dated 04.05.2010. Accordingly, the matter was reposted for hearing.
22. Today, when the matter is taken up, learned Government Pleader has produced the gazette notification dated 4th May, 2010 along with the assent so granted by the President of India, as per order dated 07.07.2006, approving the introduction of Ordinance, 2004 to be introduced as a Bill in the Legislature of the State of Kerala, whch is extracted hereunder:
“No. 14/1/2005Judl & PP
Government of India/Bharat Sarkar
Ministry of Home Affairs/Grih Manthralaya
Jaisalmer House, Mansingh Road,
New Delhi, dated the July 7, 2006.
ORDER
In pursuance of the proviso to clause (b) of the Article 304 of the Constitution, the President approves the introduction of the Kerala Forest (Amendment) Ordinance, 2004 as a Bill in the Legislature of the State of Kerala.
By order and in the name of the President.
sd/
(K.K. Kalra)
Under Secretary to the Government of India
Tel. No. 23381509”
23. In that view of the matter, since the assent as is required under the proviso to clause (b) of Article 304 of the Constitution of India was given by the President of India, the contention raised by the appellant that the amendment is bad, cannot be sustained under law.
24. Therefore, the contentions raised by the appellant that the appeals are to be allowed on the said ground cannot be sustained. In fact, the assent of the President was not brought to the notice of the learned single Judge and since the same is brought to our notice, we hold that the amendment of the Forest Act is in accordance with law and as contemplated under Article 304(b)">Article 304(b) of the Constitution of India. Therefore, the contentions raised by the learned Senior Counsel for the appellant, based on Article 304(b)">Article 304(b) of the Constitution of India, are negatived.
25. Upshot of the above discussion is that the writ appeals have no sustenance, either legally or factually, to interfere with the judgment of the learned single Judge, though for our own reasons as deliberated above. Needless to say appeals fail, accordingly they are dismissed.
