V. M. Moosa vs The Government of Tamil Nadu and Others

R. Sudhakar, J.—This writ petition has been filed to issue a Writ of Declaration, to declare that Rules 3 and 4 of Tamil Nadu Sandalwood

Trees on Patta Land Rules, 2008, is only discretionary, not mandatory and subsequently, amend the provision to enable the owner of the

Sandalwood Tree to sell the Sandalwood Tree not only to the Government, but also any other Nodal Agencies. Heard Mr. S. Muthalraj, learned

Counsel appearing for the petitioner and Mr. K. Chellapandian, learned Additional Advocate General, assisted by Mr. A.K. Baskarapandian,

learned Special Government Pleader appearing for the respondents.

By consent, the writ petition itself is taken up for final disposal.

Why the Writ Petition:-

The Petitioner claims to be the owner of certain extent of land and cultivating coconut trees, mango trees and other trees including the

sandalwood trees. According to the petitioner, 1500 sandalwood saplings are in a grown up stage and in a good condition and he wants to have a

tie-up with Karnataka Soaps and Detergent Limited which is recognised as a Nodal Agency by the State of Karnataka to procure sandalwood in

order to sell the sandalwood to the said Nodal Agency.

According to the petitioner, the Agency is giving technical and financial support to the sandalwood growers and they will give better returns. The

grievance of the petitioner is that despite his request to the respondents i.e., Forest Department, to give prior permission so as to enable the

petitioner to enter into a bipartite agreement with the Nodal Agency of the other State, the authorities refused to grant the permission and therefore,

he filed W.P. (MD) No. 12315 of 2011, which came to be dismissed as withdrawn with liberty to challenge the Rules and as a consequence the

present writ petition is filed for the relief as above.

Legal plea:-

The present writ petition has been filed challenging Rules 3 and 4 of the Tamil Nadu Sandalwood Trees on Patta Land Rules, 2008, notified

vide G.O.Ms. No. 140, Environment and Forests (FR4) dated 27.11.2008 and published in the Gazette for a declaratory relief. It will be relevant

to extract the Rules as such for better clarity of the issue.

Rules 3 and 4 of the Tamil Nadu Sandalwood Trees on Patta Land Rules, 2008, reads as follows:

Form and manner of making an application to sell the sandalwood tree to the Government (1) The owner of a sandalwood tree who desires to

sell the sandalwood tree to the Government shall make an application to the District Forest Officer in Form-I appended to these Rules.

(2) The application for sale of sandalwood tree shall be accompanied with the following documents namely:-

(i) A certificate of ownership of the land in which the sandalwood trees are grown, as issued by the Tahsildar;

(ii) Extract of Chitta/Adangal;

(iii) Sketch of the patta land;

(iv) A copy of the deed of tenancy, lease, mortgage with possession or otherwise executed in favour of the owner of the sandalwood tree;

(v) List of sandalwood trees proposed to be sold.

Verification of ownership of sandalwood tree on patta land.- The District Forest Officer, shall examine the application in Form-I and other

documents furnished by the applicant and satisfy himself as to the ownership of the sandalwood trees that are proposed to be sold to the

Government.

(Emphasis supplied.)

The petitioner''s plea is that the word ''desire'' connotes discretion and therefore, the Rule is discretionary and not mandatory insofar as sale of

sandalwood trees cut from the private land. Hence, he should be allowed to sell to agency other than the Government also,

According to the learned Counsel for the petitioner, the word ''desire'' found in clause (1) of Rule 3 should be interpreted in a manner that would

enable the sale of sandalwood trees grown on patta/private land to be sold at the discretion of the petitioner. There should be no mandate to sell

the sandalwood to the Government only. The option is that of the grower of the sandalwood trees and therefore, at the time of sale, discretion

vests with the owner of the sandalwood trees cut from his private land to sell as per his desire. He pleads for literal and liberal interpretation of the

word ''desire'' and if the Rule does not permit for such a relief, then to declare it so.

The learned Counsel for the petitioner relies upon the dictionary meaning of the word ''desire'' to contend that the word ''desire'' should be read

as strong wish of the land owner to sell to any other person other than the Government. Therefore;, the Rule should be suitably amended to enable

the owner of the sandalwood trees grown on patta land to sell the sandalwood trees not only to the Government but also to the other Nodal

Agencies as per his desire. The interpretation made by the learned Counsel for the petitioner on clause (1) of Rule 3 of the above said Rules and

the consequential relief is now for consideration. The New Oxford Dictionary meaning of the word ""desire"" is as follows:-

Strongly wish for or want.

The word ""desire"" as per the Advanced Law Lexicon is as follows:-

To wish or long for; be solicitous for; have a wish for the possession, enjoyment, or being of; crave or covet.

The View of the State:-

Mr. K. Chellapandian, learned Additional Advocate General assisted by Mr. A.K. Baskarapandian, learned Special Government Pleader

appearing for the respondents, raised a preliminary objection with regard to the writ petition by referring to the specific condition in the Act with

regard to the sale of sandalwood trees grown on patta land. He referred to Section 36-F of the Tamil Nadu Forest Act, 1882, which reads as

follows:

36-F. Rights and sale of sandalwood tree grown on private lands:- (1) Every person who grows sandalwood tree on any patta land held by him as

owner, tenant, lessee, mortgagee with possession or otherwise, shall be the owner of such sandalwood tree.

(2) No sandalwood tree grown on patta land shall be sold or otherwise alienated to any person other than the Government.

(3) The Government may make rules for the purpose of, -

(a) prescribing the form and the manner in which application for sale of sandalwood tree to the Government shall be made;

(b) verification of ownership of sandalwood tree on patta land;

(c) extraction and processing of sandalwood tree on patta land;

(d) fixation of price of sandalwood tree grown on patta land and payment to the owners of such sandalwood tree.

He contended that Clause (2) of Section 36-F of the Act, clearly prohibits the sale of sandalwood trees grown on patta lands or alienation by

any method to any person other than the Government. The writ petition is blissfully silent on this provision, The petitioner has not referred to this

provision in the Act before proceeding to interpret the Rules as above. In any event, the Rule 3 itself is for sale of sandalwood tree to the

Government. No other interpretation is contemplated and possible. Legal position and the implementation of the Act and the Rule:-

Section 36-F(2) of the Act prohibits the sale of sandalwood trees grown on patta land to any person other than the Government. Clause (3) of

Section 36-F of the Act enables the Government to make Rules for the implementation of the provisions of the Act and in furtherance to the said

power, Rules have been framed.

Rule 3 as is evident, is procedural and it deals with the form and manner for making the application to sell the sandalwood trees to the

Government. Clause (1) of Rule 3 states that when the owner of a sandalwood tree, who desires to sell the sandalwood tree to the Government,

shall make an application to the District Forest Officer in Form-I appended to these Rules.

Rule 4 provides that on an application in Form-I, the District Forest Officer will examine all the documents furnished so as to enable the land

owner to sell the same to the Government. A conjoint reading of the Act and Rules makes it clear that the owner, tenant, lessee, mortgagee with

possession or otherwise who grows sandalwood trees on patta lands, shall be the owner. However, clause (2) of Section 36-F of the Act

prohibits the sale or otherwise alienation of the sandalwood trees grown on patta land to any person other than the Government. Therefore, while

recognizing the right to grow sandalwood trees on patta lands, a bar is imposed u/s 36-F(2) of the Act on sale and alienation. In order to

implement the provisions of the Act, Section 36-F(3) enables the Government to make the rules to prescribe the form and the manner in which

application for sale of sandalwood trees to the Government. It is in furtherance to this power, the Tamil Nadu Sandalwood Trees on Patta Land

Rules, 2008 was framed. The above Rules as is evident prescribes the procedure for sale of the sandalwood trees grown en patta lands by the

owner in the event of his desire, intention, etc., to sell the sandalwood trees. Neither in the Act nor in the Rules, there appears to be any other

provision which empowers the owner of sandalwood tree grown on patta land to sell or alienate sandalwood trees in any other manner and to any

other person other than the Government.

The Government in this case has been defined u/s 2 of the Tamil Nadu Forest Act, 1882 as follows:-

Government"" means the State Government

The plea of the petitioner is to amend the above said Rules 3 and 4 so as to enable the petitioner to sell the sandalwood not only to the

Government, but also to any other Nodal Agencies at his desire and therefore, a declaratory relief is sought for.

Interpretation of the statute:-

The interpretation, sought to be made by the petitioner that the sandalwood trees grown on patta/private lands can be sold by the owners is at

his discretion or desire, is misnomer. Clause 2 of Section 36-F of the Act makes it clear that no sale of sandalwood trees is permitted other than to

the Government. Under Rule 3, as and when the owner of the sandalwood trees grown on patta/private lands desires to sell the same to the

Government as per the mandate of Section 36-F(2) of the Act, he shall make an application in Form-I. At the stage when the land owner intends

or desires to cut and sell the sandalwood trees, Rule 3 comes into operation. So long as the owner does not desire to cut and remove the

sandalwood trees for sale, no permission of the Government is required. This is the plain meaning of the Rule 3 read with Section 36-F(2) of the

Act.

Therefore, the writ petition filed to declare Rules 3 and 4 of the Tamil Nadu Sandalwood Trees on Patta land Rules, 2008, as discretionary and

not mandatory is misconceived. The main provision of Section 36-F of Tamil Nadu Forest Act, 1882 has not been challenged. Further, the Act

and the Rules have to be read in relation to each other and not disjunctively. A provision has to be read and understood in the context of the entire

scheme of the enactment. [(See Administrator, Municipal Committee, Charkhi Dadri and another Vs. Ramji Lal Bagla and others,

A Rule has to be read in its entirety and it cannot be read disjunctively and interpreted as it is sought to be done by the petitioner. The

provisions of Section 36-F of the Act and the Rules 3 and 4 should be read together and harmoniously constructed. If read together, it will give a

clarity on the issue that the sale other than to the Government is prohibited. As and when the grower/land owner desires to sell the sandalwood

trees, he has to follow certain procedures and that is specified in the Rules. What is specifically prohibited u/s 36-F of the Act cannot be whittled

down by misreading or misinterpreting Rule 3.

Rules of interpretation requires a harmonious reading of the words contained in the statute. (See. D. Sivakumar and A. Chandrasekaran Vs.

The Government of Tamil Nadu, ) This proposition is stated in the Constitution Bench decision of the Hon''ble Apex Court headed by Patanjali

Sastri, C.J., in the case of Poppatlal Shah Vs. The State of Madras, of the decision reads as follows:-

(7) It is settled rule of construction that to ascertain the legislative intent, all the constituent parts of a statute are to be taken together and each

word, phrase or sentence is to be considered in the light of the general purpose and object of the Act itself. The title of the Madras Sales Tax Act

describes it to be an Act, the object of which is to provide for the levy of a general tax on the sale of goods in the Province of Madras and the very

same words are repeated in the preamble which follows. The title and preamble, whatever their value might be as aids to be construction of a

statute, undoubtedly throw light on the intent and design of the Legislature and indicate the scope and purpose of the legislation itself. The title and

preamble of the Madras Sales Tax Act clearly show that its object, is to impose taxes on sales that take place within the province, though these

words do not necessarily mean that the property in the goods sold must pass within the province. The expression ""sale of goods"" is a composite

expression consisting of various ingredients or elements. Thus, there are the elements of a bargain or contract of sale/the payment or promise of

payment of price, the delivery of goods and the actual passing of title, and each one of them is essential to a transaction of sale though the sale is

not completed or concluded unless the purchaser becomes the owner of the property. The question is what element or elements have been

accepted by the Madras Legislature as constituting a sale in the province upon which it is the object of the statute to levy tax, Section 2(h) gives the

definition of ''sale'' and it is defined as meaning,

every transfer of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other

valuable consideration, but does not include a mortgage, hypothecation, charge or pledge.

This decision clarifies the scope and object of the present Act and the Rules. In this case, the purpose of the Rules has to be read with the intention

of the legislature, as set out in the Act which prohibits sale of sandalwood except to the Government. There can be no other manner of

interpretation.

All that Rule 3 provides is the procedure to be followed for sale of sandalwood trees grown on patta/private lands if the owner desires to sell

the same at any point of time. It is not to be mistaken as desire to sell to any body of his choice. The word ''desire'' mentioned in Rule 3 comes into

operation when the land owner desires to cut and sell the sandalwood trees to the Government as per Section 36-F(2) of the Act.

The word ''desire'' does not amount to discretion given to the owner to sell the sandalwood trees to any other person other than the

Government, The language of Section 36-F(2) of the Act is very clear and unambiguous and no other interpretation is possible based on the Rules.

To construe the word ""desire"" so as to permit the petitioner to sell the sandalwood to any other person other than the Government, the State

Government in this case would amount to misreading the rule contrary to the words in Section 36 which is emphatic and certain. The rule cannot

traverse beyond the scope of the section when the legislature has thought it fit not to grant such liberty. (See Administrator, Municipal Committee,

Charkhi Dadri and another Vs. Ramji Lal Bagla and others,

In A.K. Roy and Another Vs. State of Punjab and Others, , the Supreme Court while considering the scope of Rule 3 of Prevention of Food

Adulteration (Punjab) Rules 1958 and the provisions contained in Section 20(1) of Prevention of Food Adulteration Act, 1954, held that Rule

cannot be construed to authorise sub-delegation of powers of Food (Health) Authority to the Food Inspector to launch prosecution and while

holding so held that the Rule cannot proceed or go against the specific provisions of the statute. In Para 12 of the decision reported in A.K. Roy

and Another Vs. State of Punjab and Others, it was held as follows:-

12...If R. 3 were to be literally interpreted, the words ""to authorise the launching of prosecutions"" may lead to the consequence that the Food

(Health) Authority who had been delegated the power of the State Government under S. 20(1) of the Act could, in his turn, sub-delegate his

powers to the Food Inspector. Such a consequence is not envisaged by S,20(1) of the Act. It is well settled that rules framed pursuant to a power

conferred by a statute cannot proceed or go against the specific provisions of the statute. It must therefore follow as a logical consequence that R.

3 of the Prevention of Food Adulteration (Punjab) Rules, 1958 must be read subject to the provisions contained in S. 20(1) of the Prevention of

Food Adulteration Act, 1954 and cannot be construed to authorise sub-delegation of powers by the Food (Health) Authority, Punjab to the Food

Inspector, Faridkot If so construed, as it must, it would mean that the Food (Health) Authority was the person authorised by the State Government

to initiate prosecutions. It was also permissible for the Food (Health) Authority being the person authorised under S. 20(1) of the Act to give his

written consent for the institution of such prosecutions by the Food Inspector, Faridkot as laid down by this Court in The State of Bombay Vs.

Parshottam Kanaiyalal, and The Corporation of Calcutta Vs. Md. Omer Ali and Another,

(Emphasis supplied)

This reasoning in the decision above, will squarely apply to the facts of the present case as Rule 3 of the Tamil Nadu Sandalwood Trees on Patta

Land Rules 2008 cannot confer a benefit which has been specifically denied in Section 36 of the Act.

In any event, the petitioner''s interpretation of the Rule 3 without reference to the main provision namely clause 2 of Section 36-F of the Act, is

a futile exercise and a misconceived plea. In this connection, the decision of the Honourable Supreme Court in Union of India (UOI) and Others

Vs. S. Srinivasan, answers the issue thus:

At this stage, it is apposite to state about the rule-making powers of a delegating authority. If a rule goes beyond the rule-making power

conferred by the statute, the same has to be declared ultra vires. If a rule supplants any provision for which power has not been conferred, it

becomes ultra vires. The basic test is to determine and consider the source of power which is relatable to the rule. Similarly, a rule must be in

accord with the parent statute as it cannot travel beyond it.

(emphasis supplied)

In this case, the Rule under challenge is in consonance with Section 36-F of the Act. By misinterpreting the word ""desire"" the Rule cannot be made

to traverse beyond the parent provision, namely, Section 36-F(2) of the Act.

Section 36-F (2) of the Act clearly prohibits the sale or alienation of sandalwood trees grown on patta/private lands to any other person other

than the Government and Rule 3 framed in terms of clause (3) of Section 36-F of the Act, provides the manner in which the sale of sandalwood

trees grown on patta/private lands should be effected. There is, therefore, no element of doubt or ambiguity.

The reason for framing such Rules is clarified by Rule 4 which mandates the District Forest Officer to examine the application in Form-I and

other documents furnished by the applicant and satisfy himself as to the ownership of the sandalwood trees that are proposed to be sold to the

Government. Therefore, there is no scope for any other interpretation.

A reading of Rules 3 and 4 makes it clear that there is no ambiguity in the Rules and it is in consonance with the main provision, namely,

Section 36-F of the Act. In such view of the matter, the writ petition filed for a Writ of Declaration that Rules 3 and 4 are to be held discretionary

and not mandatory, has no basis and is totally misconceived and opposed to the main statute.

Effect of interpretation of words in a statute:-

The interpretation of the word ''desire'' in common English parlance as contended by the learned Counsel for the petitioner, is a fallacious

argument, as the petitioner failed to advert to Section 36-F (2) of the Act in the writ petition. The meaning of an ordinary word of the English

Language is not a question of law. The proper construction of a statute is a question of law. Brutus vs. - Cozens (1972) 3 WLR 521, 525 (HL).

To further amplify this view, it may be relevant to quote Frankfurter. J., in FTC - vs. - Bunte Bros Inc. (1941) 312 US 349.

In FTC v. Bunte Bros Inc, Frankfurter J, stated:

To be sure, the construction of every such statue presents a unique problem in which words derive vitality from the aim and nature of the specific

legislation.

Decision is not to be reached by a strict construction of the words of the Act, nor by application of artificial canons of construction. On the

contrary, we are to read the statute language in its ordinary and natural sense, and if doubts remain, resolve them in the light, only if the policy

intended to be served by the enactment, but, as well, by all other available aids to construction. But it is not our function to engraft on a statute

additions which we the legislature logically might or should have made.

In this case, the provision u/s 36-F (2) of the Act which prohibits the sale has not been challenged and the writ petition filed challenging the

Rules, on a misconstruction of the language in the rule is, therefore, not permissible. The petitioner has not shown any valid legal plea to challenge

the said Rule.

Two grounds raised in the writ petition that are relevant to answer, are set out hereunder:

(a) That the petitioner having the right guaranteed by the Article 19(1)(g) of the Constitution of India to ensure the citizen for the Right to business

doesn''t depend grant by the state and that the state cannot prevent a citizen from carrying on business, except by a law imposing a reasonable

restriction with the interest of the general public and a citizen cannot compelled to do a certain business.

(b) It is the duty of the Respondents to give prior permission for doing a business by the Petitioner as guaranteed by the Constitution of India as the

rules are only in nature of discretionary and not mandatory.

(extracted as such)

The grounds in writ petition are self explanatory as the petitioner accepts the principle of reasonable restriction in the light of the right under Article

19(1)(g) of the Constitution of India. This principle is well settled by catena of decisions of the Apex Court.

The two grounds as above raised in the writ petition cannot be sustained as the main provision, namely, Section 36-F (2) of the Act has not

been challenged as the absolute restriction is imposed under that provision only. Therefore, when the petitioner has not challenged the main

provision i.e., Section 36-F(2) of the Act, he is not entitled to maintain this writ petition challenging the Rules, which are procedural. In any event,

no benefit can be derived under the Rules even on the basis of the so-called interpretation.

Power of the Court to legislate:-

The further misconception in the writ petition is the prayer to direct the amendment of the Rule as discretionary and not mandatory. The Act

gives the Government the power to frame Rules. This Court will not usurp the power of the Government nor it will direct the Government to frame

Rule in any particular manner. It is not the role of the Court to adorn the mantle of the legislature as held by the Hon''ble Apex Court in

Bharathidasan University and Another Vs. All India Council for Technical Education and Others,

In District Mining Officer and Others Vs. Tata Iron and Steel Co. and Another, , the principle that court should not usurp legislative function

under the disguise of interpretation has been emphasized. The declaratory relief that the petitioner seeks is one such relief and therefore, the same is

rejected as misconceived and one without any legal basis. For all the above reasons the Writ Petition has to fail. In the result, finding no merits, the

Writ Petition is dismissed. Consequently, the connected Miscellaneous Petition is also dismissed. No costs.