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The Indian Forest Act, 1927
Article 301 in The Constitution Of India 1949
Section 3 in The Indian Forest Act, 1927
Section 2 in The Indian Forest Act, 1927
The Land Acquisition Act, 1894
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Nagar - 2, Amravati vs Ou on 24 February, 2014

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Bombay High Court
Janu Chandra Waghmare And Ors. vs The State Of Maharashtra And Ors. on 14 July, 1977
Equivalent citations: AIR 1978 Bom 119, (1977) 79 BOMLR 499
Author: Tulzapurkar
Bench: V Tulzapurkar, V Deshpande, S Desai, N Naik, R Kambli

JUDGMENT

Tulzapurkar, Ag. C.J.

1. These petitions raise common questions as to constitutional validity of the Maharashtra Private Forests (Acquisition) Act, 1975, being Act No. 29 of 1975, as amended by Act No. 72 of 1975. The constitutional validity of the said Act has been mainly challenged on three grounds: (a) that the State Legislature of Maharashtra lacks legislative competence to enact the measure, particularly Section 3 thereof, to the extent to which it purports to vest in the State Government the 'forest produce' while acquiring all private forests in the State, (b) that the said enactment, particularly Sections 3 and 5 thereof, contravene the freedom of trade, commerce and intercourse guaranteed under Article 301 of the Constitution and (c) that the enactment, particularly Section 3 thereof, which purports to acquire not merely of mines and minerals, major as well as minor but also mining leases, licences and other rights in mines and minerals conflicts with and trenches upon the occupied field under the Central Act 67 of 1957 -- Mines end Minerals (Regulation and Development) Act, 1957 -- passed by Parliament under Entry 54 of List I and therefore is void. The validity of Section 3 of the said enactment to the extent to which it purports to acquire and vest the 'forest produce' in the State Government was also sought to be challenged on the ground that such acquisition was violative of Article 31(2) of the Constitution but in view of the fact that the said enactment has now been put in the 9th Schedule of the Constitution by the 40th Constitutional Amendment Act, the said challenge no longer survived. But the 40th Constitution Amendment Act itself was also challenged as being invalid and ultra vires the powers of the Parliament on certain grounds, but the said challenge was not pressed by the petitioners at the hearing. The challenge to the constitutional validity of the said Act on the three grounds mentioned above arises in the following circumstances:

2. The aforesaid bunch of three petitions have been referred to this larger Bench as they involve common grounds of challenge to the constitutional validity of the aforesaid Act but it will be sufficient if facts pertaining to Special Civil Application No. 1553 of 1974 in which common questions were raised for the first time are set out in detail. The first petitioner (Janu C. Waghmare) was the proprietary Jagirdar and owner of the private forest comprised in Section Nos. 3, 16/1, 19, 42 and 147 situate in village Ambatha, Taluka Surgana, District Nasik. The said jahagir stood abolished under Section 3 of the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 (Bombay Act 39 of 1954) and thereafter the let petitioner continued to be the owner and occupant of the said pirvatt forest. A dispute had arisen as regards the exact nature of rights of Jagirdar incluling the 1st petitioner which was finally resolved by judgment and order bearing No. WTN/US/2680/69 dated 11-9-1969 passed by the Collector of Nasik by which the nature of jahagir of the 1st petitioner was held to be a proprietary one and he got physical possession of the private forest on or about 21-1-1974. By a registered agreement of sale dated 7-2-1974 the 1st petitioner and other male members of joint Hindu family of which he was the Karta, agreed to sell all the teak and injaili trees (10,700 teak trees and 12,000 injaili trees) grown in the said private forest to the 3rd petitioner-firm of which the 2nd petitioner was a partner. The said contract for sale of the trees and the benefits thereunder were subsequently assigned with the consent of the 1st petitioner and the members of his joint family, to the 5th petitioner-firm of which the 4th petitioner was a partner. No sooner the agreement for sale of trees was entered into by the 1st petitioner on 7-2-1974 with the 3rd petitioner-firm the 1st petitioner made an application to the Tehsildar of Surgana Taluka for permission to fell the teak trees under S. 3 of the Maharashtra Felling of Trees (Regulation) Act, 1964 being Act No. 34 of 1964; no permission was necessary for felling injaili trees under the said Act as it then stood. On 28-3-1974 permission was granted by the Tehsildar to the 1st petitioner for felling 9719 teak trees. The 1st petitioner being an Adivasi, the said agreement for sale required permission/approval of the Collector under S. 5 of the Maharashtra Sale of Trees by Occupants belonging to Scheduled Tribes (Regulation) Act, 1959 being Act No. 23 of 1969 (hereinafter referred to as the 'Scheduled Tribes Act') under which the Collector had to be satisfied that the agreement for sale was voluntary and the price, as determined on valuation, was reasonable. Since for such approval valuation of the felled trees was required to be made the 1st petitioner moved the Range Forest Officer on 29-3-1974 for valuation of the felled material. In April 1974 orders for valuation were passed and by 7/8-5-1974 valuation of the part of the felled material was made by the Forest authorities and the panchanama dated 8-5-1974 made in that behalf recited that from Survey No. 42, 2494 teak trees had been felled and teak wood logs number-Ing 6795 admeasuring 825.280 cubic meters of approximate value of Rs. 2,56,675 were lying there. Valuation of the trees that were subsequently felled was however delayed in spite of the 1st petitioner's attempt to get the same done. However, indisputably by June 1974 all 9719 teak trees and all injaili trees had been felled by the petitioners. On 27-6-1974 the 1st petitioner applied to the Assistant Collector of Nasik under S. 5 of the Scheduled Tribes Act for approval of the contract dated 7-2-1974 which had in the meantime been assigned in favour of the 5th petitioner-firm. He also made an application for transit passes for removing the felled material of teak and injaili trees. As no reply was received Special Civil Application No. 1553 of 1974 was filed on 5-7-1974 for a writ directing the State of Maha-rashtra and its officers to approve the eaid contract and to issue transit passes for the felled material.

3. During the pendency of the petition the Scheduled Tribes Act was amended on 16-7-1974 by Maharashtra Ordinance No. 15 of 1974 whereby Section 5 of the parent Act was deleted, Section 6 was amended and injaili trees were included within the purview of the Act. The Ordinance was repealed and replaced by the Maharashtra Act 31 of 1974 under which the amendments made in the parent Act were made effective from 16-7-1974. The result was that whereas under the unamended Scheduled Tribes Act the sale of trees could be effected by-a member of the Scheduled Tribe in one of the two alternative ways viz. by private contract, subject to approval of the Collector under Section 5 or by the official machinery of seeking the assistance of the Collector under Section 6, under the amendment only one mode of effecting sale of trees by a member of the Scheduled Tribe remained available to him viz. by using the official machinery of seeking the assistance of the Collector under Section 6 and further that even the injaili trees had to be disposed of in accordance with the provisions of Section 6. It appears that while the application dated 27-6-1974 for approval of the contract was still pending, another application in continuation of earlier application was made on 20-7-1974. The earlier application was rejected on the ground that it was not in the prescribed form, while the second application was rejected on the ground that the same was not maintainable and did not survive after the amendment effected in the Scheduled Tribes Act on 16-7-1974 and the 1st petitioner was directed to apply for the Collector's assistance for selling the trees under Section 6 of the Scheduled Tribes Act as amended. This order rejecting the second application was passed on 28-10-1974. On 14-5-1975 the State Government issued a notification under Section 35(1) of the Indian Forest Act, 1927 in respect of the 1st petitioner's said private forest.

4, Further, during the pendency of the petition the Maharashtra Private Forests (Acquisition) Act, 1975 being Act No. 29 of 1975 was passed on 29-8-1975 and it came into operation on 30-8-1975 (being the 'appointed day' under Section 2 (a) of the Act). Under Section 3 thereof all private forests were compulsorily acquired and stood vested in the State with effect from the appointed day (30-8-1975). The Act 29 of 1975 as it then stood did not define the expression 'Forest' but Section 2 (f) thereof defined the expression 'private forest' as meaning 'any forest which is not the property of the Government' and further including six heads specified in Clauses (i) to (vi), but significantly enough the expression 'forest produce' was neither defined in Section 2 nor was referred to in Section 3 under which all private forests stood vested in the State Government with effect from the appointed day. During the hearing of the petition the principal contention of the petitioners before the Division Bench was that the process of cutting, dismembering and converting trees (9719 teak trees and 12,000 injaili trees as also other trees of minor importance) into logs had been completed and such cut logs of wood had been stored in the godowns in the forest long prior to the coming into force of Act 29 of 1975, that such forest produce (felled material} was an independent and distinct species of property, that the legislative head 'forest' in Entry 19 of List II of the 7th Schedule to the Constitution would not cover such forest produce and therefore the same would not vest in the State Government under Section 3 of the said Act. In other words, the contention was that under Section 3 of the said Act all private forests had been acquired and became vested in the State Government but not the aforesaid forest produce and since acquisition of private forest under Section 3 of the said Act did not cover acquisition of the forest produce, nothing in the said Act could prevent the petitioners from claiming title to such forest produce and removing the felled material which, had already become theirs and had been lying therein before the enactment was brought into force. The Division Bench (consisting of Vimadalal and Sapre JJ.) at the end of the hearing gave an indication that it was inclined to accept the aforesaid contention of the petitioners. The delivering of the judgment by Vimadalal J, commenced in Court on 30-9-1975. The next day being an admission day the Bench could not devote any time to the further delivery of part-delivered judgment. On 2-10-1975 the Bench, which was thus half-way through its judgment, was informed that by Maharash-tra Ordinance No. 13 of 1975 passed on 1st Oct. 1975 Act No. 29 of 1975 had been amended. A definition of the expression 'forest' which was not there at all in the Act was supplied for the first time under an added Clause (c-1) and by Clause (c-2) a definition of expression 'forest produce' was also introduced and that expression, it was stated, would have the same meaning as assigned to it in the Indian Forests Act, 1927. In the definition of the expression 'private forest' contained in Section 2(f) a new clause being Clause (vii) was introduced with the result that the said expression included 'all the forest produce therein, whether standing, felled, found or otherwise'. The attention of the learned Judges of the Division Bench was drawn to these amendments which were made retrospectively effective from the date of commencement of the Act viz. 30-8-1975. The Division Bench first completed the delivery of its judgment in regard to the finding which It had arrived at before the Ordinance was promulgated and indicated that it would have allowed the application by directing the respondents to issue transit passes in favour of the 5th petitioner-firm in respect of timber cut from injaili trees and in favour of the 1st petitioner in respect of timber cut from teak trees. In view of the amendments effected by the Ordinance the petitioners, after obtaining permission from the Division Bench, amended their petition and included appropriate grounds to attack the constitutional validity and effect of the amendments made by the Ordinance. Then the Bench heard the arguments of counsel on either side as to the effect of the Ordinance on the controversy raised before it. The learned Judges of the Division Bench differed on the question of construction as to whether logs cut and fashioned by the petitioners would be covered by the fresh definition of the expression 'forest' according to which trees, whether standing, felled, found or otherwise were included within the expression 'forest'. Vimadalal J. by his judgment dated 21-10-1975 held on construction of the new Clause (c-1) of Section 2 that felled and cut timber (logs cut and fashioned by the petitioners) would not come within the artificial definition of the expression 'forest' while Sapre J. held that the same did, The two learned Judges also differed on the question as to whether Act 29 of 1975 and the Amending Ordinance were beyond the legislative competence of the State Legislature, inasmuch as, they sought to acquire felled and cut timber lying in the forest on 30-8-1975 and also on the question whether the Amending Ordinance was ultra vires the provisions of Article 31(2) of the Constitution, inasmuch as, it sought to acquire felled and cut timber without fixing any principles for determining the amount to be paid for the same and .also because the said felled and cut timber was sought to be acquired without any public purpose merely for augmenting the State revenue. Vimadalal J. upheld the contentions of the petitioners, namely that the Acquisition Act and the Amending Ordinance were beyond the competence of the State Legislature and that the Amending Ordinance was ultra vires Article 31(2), while Sapre J. rejected the said contention of the petitioners. Both the learned Judges, however, were agreed on the point that the addition of Clause (vii) to the definition of the expression 'private forest' could not improve the matter in the absence of the expression 'forest' itself including such forest produce in its definition. In view of this difference, points of difference were formulated and referred to a third Judge for decision under Clause 36 of the Letters Patent.

5. While the matter was pending he-fore Deshmukh J. as the third Judge, Ordinance 13 of 1975 was replaced by Maharashtra Act 72 of 1975 under which the parent Act 29 of 1975 was further extensively amended with effect from the date of its original commencement (30-8-19-75). The definition of the expression 'forest produce' in Section 2(c-2) was deleted, obviously because it was superfluous in view of the original Clause (h) of Section 2 under which it had been provided that words and expressions used in this (parent) Act but not denned therein shall have the meanings assigned to them in the Forest Act, 1927. Clause (vii) of Section 2 (f) introduced under the Ordinance was deleted therefrom and was now introduced as Clause (v) in the definition of expression 'forest' under Section 2(c-1). Further one more clause was added viz. Clause (iv) in the inclusive part of the definition of 'forest' in Section 2(c-1). Apart from these amendments made in the definition section of the parent Act, the preamble and Section 4 and 5 of the parent Act were also extensively amended. . When the matter was taken up for hearing by Deshmukh J., counsel appearing for the State requested the learned Judge to take into consideration the amendments introduced by the Amending Act 72 of 1975 while answering questions referred to him. The learned Judge declined to do so holding that such a course was not permissible on. a reference made to him under Clause 36 of the Letters Patent. Out of four points that were referred to him, Deshmukh J. agreed with Vimadalal J. on three points and disagreed with him on the fourth point, which is not material to the disposal of this petition. The three points on which Deshmukh J, agreed with Vimadalal J. were: (i) that felled and cut timber lying in the private forest could not be regarded as 'trees' and could not fall within the definition of 'forest' under Section 2(c-1) of the Act; (ii) that Act 29 of 1975 and the Amending Ordinance were beyond the legislative competence of the said legislature, Inasmuch as, they sought to acquire felled and cut timber lying in the forest on 30-8-1975 and (iii) that the Amending Ordinance to the above extent was ultra vires Article 31(2) because (a) acquisition was not for the public purpose and (b) acquisition was without fixing any principles for determination of the amount payable therefor, or alternatively, (c) the so-called compensation had no relation whatsoever to the property acquired. The matter was then placed before the Division Bench on 8-3-1976 and the petition was allowed in accordance with the majority opinion on the material pointa It may be stated that before the Division Bench on 8-3-1976 the petitioners insisted that the case should be decided in the light of amendments introduced in the parent Act by amending Act 72 of 1975, but curiously enough counsel for the State opposed the move and accordingly the Bench disposed of the petition without taking into account the amendments effected in the parent Act by Amending Act 72 of 1975.

6. The State of Maharashtra preferred an appeal to the Supreme Court, being Civil Appeal No. 343 of 1976 but by this time the Acquisition Act 29 of 1975 as amended by Act 72 of 1975 was Included in the 9th Schedule under the Constitution (40th) Amendment Act, 1976. By consent, the order of the High Court dated 8-3-1976 was set aside by the Supreme Court on 1-11-1976 and the case was remitted to the High Court "to hear the parties on Maharashtra Private Forests (Acquisition) (Amendment) Act, Act 72/75, and after hearing the rival contentions of the parties the High Court will pronounce its judgment". When the matter came up for hearing before the Division Bench, it was realised that the Constitution (42nd) Amendment Act, 1976 was being made effective from 1st Feb. 1976 and the hearing by the Division Bench was not likely to be concluded before that date and since the constitutional validity of the enactment was challenged the matter was referred to this Bench of five Judges so that the hearing as well as decision of the Court could comply with Article 228A of the Constitution.

7. It was noticed that several other petitions are also pending in this Court on the Appellate side in which validity of this very enactment has been challenged and the petitioners therein are Interested in the common questions of law. At the instance of some of them their petitions have been placed for hearing along with the above petitions for decision of common questions only. Similarly, several miscellaneous petitions are pending on the original side the petitioners in which are interested in the common questions of law that arise before us and hence on an application being made on their behalf to intervene they have been permitted to intervene. However, as in their petitions other disputed questions have been raised as to whether quarry lands and other lands concerned in each are forest or not, an agreed statement was filed by counsel appearing for the petitioners and counsel appearing for the respondents that the decision on the constitutional points will not prejudice the rights of either party to agitate before the appropriate authority or authorities the disputed question as to whether the said quarry lands and other lands are or are not forest in the ordinary natural meaning of the word 'forest' and all factual questions already raised or which may be raised have been kept open.

8. We have already indicated at the commencement of the judgment that constitutional validity of the Maharashtra Private Forests (Acquisition) Act, 1975 being Act 29 of 1975 as amended by Act 72 of 1975 (hereinafter referred to as 'the Acquisition Act') has been challenged principally on three grounds, namely (a) lack of legislative competence, (b) contravention of Article 301 of the Constitution and (c) trenching done by the enactment upon the field occupied by or under the Central Act 67 of 1957 -- Mines and Minerals (Regulation and Development) Act, 1957 -- and we shall deal with each of these grounds separately. But before we do so, it would be necessary and desirable to consider the object and purpose for which the enactment has been put on the statute book as well as its main provisions and salient features in order that the rival submissions that have been made on each one of the grounds of challenge should be properly appreciated.

9. At the outset we may point out that the Acquisition Act as its name would show was enacted on 29th Aug. 1975 for the purpose of acquiring private forests in the State and to provide for certain other matters. According to preamble, which was extensively amended by the Amending Act 72 of 1975, it was noticed that the forest land in the State of Maharashtra was inadequate, that, private forest in the State was generally in a highly degraded and over-exploited state and was adversely affecting agriculture and agricultural population and that therefore it was expedient "to acquire private forests in the State of Maharashtra generally for conserving their material resources and protecting them from destruction or over-exploitation by their owners and for promoting systematic and scientific development and management of such forests for the purpose of attaining and maintaining ecological balance in the public interest, for improving the socio-economic conditions of the rural population, and particularly of the adivasis and other backward communities who generally live in forest areas, for developing as pasture the forest suitable for the purpose, for assigning a part of the private forest to the rural community, for controlling the soil erosion both in the forest areas and in the lower level agricultural lands, for conserving soil moisture, for improvement of the water regime and raising the water table, for retarding the siltation of dams and tanks, for distribution of forest produce for the common good and preventing the concentration of forest wealth to the common detriment, for distribution of the mature exploitable forest produce as best to subserve the common good, for promoting employment opportunities based on forest, for meeting the requirements of forest produce including fire-wood with a view inter alia to decrease the dependence on cow-dung, and in particular, for afforestation of private forest wherever feasible on scientific lines, and thereby create conditions for the preservation of soil, conservation of water, prevention of erosion of soil and for improvement of land and underground water resources to the best interests of agriculture and agriculturists in such private forests and other lands in the State and for undertaking schemes for these and other purposes as hereinafter provided and to provide for matters connected therewith". The Act has been brought into force on 30-8-1975 which has been regarded as the 'appointed day' under Section 2 (a) of the Act. Section 2 of the unamended Act 29 of 1975 contained definitions of several expressions. As stated earlier, there was no definition of the expression 'forest' or 'forest produce' therein at all. The expression 'private forest' was defined in Section 2 (f)which ran as follows:--

"Private forest' means any forest which is not the property of Government and includes-

(i) any land declared before the appointed day to be a forest under Section 34A of the Forest Act;

(ii) any forest in respect of which any notification issued under Sub-section (1) of Section 35 of the Forest Act, is in force immediately before the appointed day;

(iii) any land in respect of which a notice has been issued under Sub-section (3) of Section 35 of the Forest Act, but excluding an area not exceeding two hectares in extent as the Collector may specify in this behalf;

(iv) land in respect of which a notification has been issued under Section 38 of the Forest Act;

(v) in a case where the State Government and any other person are jointly interested in the forest, the interest of such person in such forest;

(vi) sites of dwelling houses constructed in such forest which are considered to be necessary for the convenient enjoyment or use of the forest and lands appurtenant thereto." By the Ordinance No. 13 of 1975 Clause (vii) was added to the aforesaid definition of 'private forest' which ran thus:

"(vii) all the forest produce therein, whether standing, felled, found or otherwise."

Section 2 (h) is material and it runs as follows:--

"Words and expressions used in this Act but not defined therein shall have the meanings assigned to them in the Code or, as the case may be, in the Forest Act."

By Ordinance No. 13 of 1975 the definition of the expression 'forest' was introduced in Section 2 Of the parent Act (29/75) by insertion of Clause (c-1) and it ran thus:

"(c-1): 'forest' means a tract of land covered with trees .(whether standing, felled, found or otherwise), shrubs, bushes, or woody vegetation whether of natural growth or planted by human agency and existing or being maintained with or without human effort, or such tract of land on which such growth is likely to have an effect on the supply of timber, fuel, forest produce, or grazing facilities, or on climate, stream flow, protection of land from erosion or other such matters, and shall include,--

(i) land covered with stumps of trees of a forest;

(ii) land which is part of a forest or lies within it or was part of a forest or was lying within a forest on the 30th day of Aug. 1975;

(iii) such pasture land, waterlogged or cultivable or non-cultivable land, lying within or adjacent to, a forest, as may be declared to be a forest by the State Government." By the Amending Act 72 of 1975 the definitions of the expressions 'forest' and 'forest produce' were further amended and toy these amendments Clause (vii) which had been added in the inclusive part of the definition of the expression 'private forest' was deleted therefrom and the same was with one more additional clause introduced in the definition of the expression 'forest'. The definitions of the two expressions 'forest' and 'private forest' as finally amended run thus:

"(c-1): 'forest' means a tract of land covered with trees (whether standing, felled, found or otherwise), shrubs, bushes or woody vegetation, whether of natural growth or planted by human agency and existing or being maintained with or without human effort or such tract of land on which such growth is likely to have an effect on the supply of timber, fuel, forest produce, or grazing facilities, or on climate, stream flow, protection of land from erosion, or other such matters and includes,--

(i) land covered with stumps of trees of a forest;

(ii) land which is part of a forest or lies within it or was part of a forest or was lying within a forest on the 30th day of August 1975;

(iii) such pasture land, water-logged Or cultivable or non-cultivable land, lying within or linked to a forest, as may be declared to be forest by the State Government;

(iv) forest land held or let for purpose of agriculture or for any purposes ancillary thereto;

(v) all the forest produce therein, whether standing, felled, found or otherwise."

"2 (f): 'private forest' means any forest which is not the property of Government and includes-

(i) any land declared before the appointed day to be a forest under Section 34A of the Forest Act;

(ii) any forest in respect of which any notification issued under Sub-section (1) of Section 35 of the Forest Act, is in force immediately before the appointed day;

(iii) any land in respect of which a notice has been issued under Sub-section (3) of Section 35 of the Forest Act, but excluding an area not exceeding two hectares in extent as the Collector may specify in this behalf;

(iv) land in respect of which a notification has been issued under Section 38 of the Forest Act;

(v) in a case where the State Government and any other person are jointly interested in the forest, the interest of such person in such forest;

(vi) sites of dwelling houses constructed in such forest which are considered to be necessary for the convenient enjoyment or use of the forest and lands appurtenant thereto." On reading of these two definitions it will appear that each one has some artificiality in it and the question will be whether the artificiality in these definitions introduces something over which the State Legislature has no legislative competence and if so to what extent?

10. The most material provision of the Acquisition Act is contained in Section 3 which provides for vesting of all private forests in the State Government and that section runs thus:

"3. (1) Notwithstanding anything contained in any law for the time being in force or in any settlement, grant, agreement, usage, custom or any decree or order of any Court, Tribunal or authority or any other document, with effect on and from the appointed day, all private forests in the State shall stand acquired and vest, free from all encumbrances, in, and shall be deemed to be, with all rights in or over the same of appurtaining thereto, the property of the State Government, and all rights, title and interest of the owner or any person other than the Government subsisting in any such forest on the said day shall be deemed to have been extinguished.

(2) Nothing contained in Sub-section (1) shall apply to so much extent of land comprised in a private forest as is held by an occupant or tenant and is lawfully under cultivation on the appointed day and is not in excess of the ceiling area provided 'by Section 5 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, for the time being in force or any building or structure standing thereon or appurtenant thereto.

(3) All private forests vested in the State Government under Sub-section (1) shall be deemed to be reserved forests within the meaning of the Forest Act." The aforesaid provision is the key provision in the entire enactment. Two or three things become clear on a reading of this section. Sub-section (1) thereof provides for compulsory acquisition of all private forests by the State Government and vesting of such private forest in the State with effect on and from the appointed day i.e. 30-8-1975; secondly such vesting of private forest takes place notwithstanding anything contained in any law for the time 'being in force or in any settlement, grant, agreement, usage, custom or any decree or order of any Court, Tribunal or authority or any other document; and thirdly such vesting of private forest in the State shall be free from all encumbrances and all rights, title and interest of the owner or any person other than the Government subsisting in any such forest on the said day shall be deemed to have been extinguished. Sub-section (2) thereof is a saving clause which says that in the case of an occupant or tenant of a private forest so much of land as is under his lawful cultivation on the appointed day shall not vest in the State Government provided such land does not exceed the ceiling area provided by Section 5 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. Sub-section (3) thereof declares that all private forests vested in the State Government under Sub-section (1) shall be deemed to be reserved forest within the meaning of the Forest Act, 1927.

11. Under Section 4 it is provided that on acquisition of private forests the State Government shall take steps for afforestation of forest lands on scientific basis for developing the lands and utilising them according to their capability including pastures, for regulating the felling of trees on scientific lines, for promoting soil and water conservation as would best subserve agriculture, for distribution of the mature exploitable forest produce as to best subserve the common good and for securing those purposes undertake schemes, particularly in the best interest of the agriculture and agricultural population of the State; the said section then goes on to indicate what several other matters may be provided for by such schemes. Original Section 5 created an obligation upon a person in possession of private forest to surrender and hand over the same to the Collector forthwith, but under the amended Section 5 it has been provided that no sooner any private forest would stand acquired and vested in the State Government the person authorised by the State Government or Collector in that behalf shall enter into and take over possession thereof and any person resisting taking over of such possession will be liable to be removed by use of such force as may be necessary. Section 6 provides machinery for determining whether a particular piece of property is private forest or not and whether the same has vested in the State Government or not and the Collector's decision oft the point, subject to an appeal to the Tribunal or revision to the State, has been made final. Sections 7 to 11 provide for a scheme and procedure for determination by the Collector of the amount payable to the owner of private forest and the manner of making payment to him and deductions of amounts of encumbrances to be made therefrom. Section 12 provides for payment of amount to a person other than the owner of the private forest for extinguishment of his right, if any, qua private forest enjoyed by him otherwise than as a member of the public and it further provides that if any amount is awarded to such a person, the same will be liable to be deducted from the amount determined as payble to the owner of such private forest. Section 13 provides for an appeal against an order of the Collector under Sections 9, 11 and 12 while Section 14 lays down the procedure for hearing of such appeal by the Tribunal and Section 15 deals with limitation for preferring such an appeal. Sections 17 and 18 provide for finality of the Collector's award subject to appeal to the Tribunal and revision to the State Government under certain circumstances. The provisions of Section 21 enable the State Government to make declaration of certain lands as private forest and the effect that would follow after such a declaration is made. Section 22 casts an obligation on the owners of private forests to deliver records relating to such private forests which have vested in the State Government under the provisions of the Act to an officer authorised by the State Government. Section 23 confers rule making power upon the State Government for carrying out the purposes of the Act while Section 24 repeals some of the sections including Sections 34A and 35 of the Indian Forest Act, 1927 as it is made applicable to the State of Maharashtra with effect from the appointed day viz. 30-8-1975.

12. It will appear clear from the aforesaid broad survey of the provisions of enactment as also its title and preamble that the Act was mainly put on the statute book for the purpose of acquisition of private forests in the State of Maharashtra. In other words, the pith and substance of the enactment Ss acquisition of private forests.

13. We shall now proceed tp deal with the challenge to the constitutional validity of the Acquisition Act, particularly Section 3 thereof based on lack of lative competence. Before setting out the contentions urged in support of the aforesaid ground of attack, we would' like to refer to certain admitted factual position to which our attention was drawn by Mr. Singhvi appearing for the petitioners in Special Civil Application No. 1553 of 1974. According to Mr. Singhvi, the process of cutting dismembering and converting trees (9719 teak trees, 12000 injaili trees and other trees of minor importance) into logs and stacking of such cut logs of wood in the godowns in the forest had been completed long prior to 30th Aug. 1975 (the day when the Act came into force); in other words, cut timber had been fashioned into logs and stacked. In that behalf reference may be made to certain admissions made by Mr. B. D. Mirchan-dani, Divisional Forest Officer (East), Nasik in his affidavit dated 27-3-1975, which is on record. In that affidavit Mr. Mirchandani has admitted that certain material viz. (i) converted, logs of, teak wood admeasuring 2453.486 cubic metres (ii) converted logs of Hed, Kalam, Tiwas and Bibla trees admeasuring 144.051 cubic metres, (iii) unmeasured quantity of logs of tops and. hollow wood from teak, Hed, Kalam, Tiw.as and Bibla trees yet to be converted, into- fire, wood: and (iv) partly converted and partly unconverted logs from 9500 injaili trees, was lying hi the Jagir area. He has further admitted that the value of the material under categories (i) and. (ii) above could be Rs. 16,52,781 and, the value of the material under categories (iii) and (iv) could be about Rs. 1,50,000; that is to say, the total material, lying in the Jagir area would be to the tune of Rs. 13,02,781 and he has further stated that in view of rising trend of prices in timber, the upset price (reserve bid) for auction sale of such material should be fixed at Rs. 21 lacs. Further in his affidavit dated 4-12-1975 Mr. Mirchandani has admitted that by then he had completed the inventory of felled material lying in the said forest area and the total felled material lying in the forest as per the inventory admeasured 2788.650 cubic metres of teak wood and 726 cubic metres of fire wood and that in addition to the aforesaid material indicated in the inventory some more felled material had, earlier to coming into force of the Act on 30th Aug. 1975, been dragged by the petitioner and collected in the adjacent private malki survey number and that such felled material comprises of 960 teak and injaili timber pieces having approximate outturn of 131.215 cubic metres. Mr. Singhvi also invited our attention to e clear finding of fact that has been recorded by Mr. justice Deshmukh in his judgment after referring to the pleadings and affidavits of parties to the effect that the teak trees and injaili trees as also the other trees of minor importance had been converted into logs and stacked in the godowns long prior to coming into force of the Acquisition Act on 30-8-1975. The learned Judge has recorded his aforesaid finding in these words:

"On a proper reading of the allegations in the petition together with those references, I am satisfied that all the teak trees and injaili trees as also the other trees of minor importance referred to in the affidavit of Mr. Mirchandani have been converted into logs and stacked in the godowns, which is nothing but a part of the forest land itself.........

It is, therefore, clear that the process of cutting, dismembering and converting trees ;into log was complete at a stage when Act No. 29 of 1975 came into force."

Belying upon this factual position which indisputably arises on record, Mr, Singhvi ior the petitioners has raised the question about legislative competence of the State Legislature to enact Section 3 of the Acquisition Act to the extent to which it purports to vest the aforesaid 'forest produce' in the form of timber cut and fashioned into logs in the State Government. Mr. Singhvi's argument challenging the legislative competence of the State Legislature to enact Section 3 of the Acquisition Act runs thus: According to him, the pith and substance of the Acquisition Act is acquisition of private forests; the topic 'forests' falls under Entry 19 in List II while the topic 'acquisition and requisitioning of property' falls under Entry 42 in List III of the 7th .Schedule to the Constitution and as such under Entry 19 in List II read with Entry 42 in List III it would be perfectly competent to the State Legislature to legislate upon the subject of acquisition of private forests which it has done under Section 3 of the Act. However, neither in Article 366 of the Constitution nor in the General Clauses Act, 1897 (which has been made applicable for interpretation of the Constitution under Art, 367) has the expression 'forest' been denned nor was there any legislative practice prior to enactment of the Constitution throwing any light on the precise meaning of the expression 'forest' inasmuch as neither the Government of India Act, 1935 (legislative practice prior to the introduction of federal structure accompanied by distribution of legislative powers being irrelevant) nor any other Indian enactment had defined 'forest' and therefore the topic 'forests' appearing under Entry 19 in List II must be given its plain dictionary meaning. He pointed out that out of the three meanings given in Oxford English Dictionary the applicable meaning of the expression 'forest' is 'an extensive tract of land covered with trees end undergrowth, sometimes intermingled with pasture; also the trees collectively a forest' which shows that forest is essentially or 'basically land of certain description, namely land covered with trees etc. and that forest produce in the form of cut and fashioned logs of wood or cut timber would not come within that concept as it is a separate and distinct species of property end therefore the State Legislature exercising its legislative powers under Entry 19 in List II read with Entry 42 in List III lacks competence to legislate on acquisition of such forest produce. No doubt it is true, he has argued, that while legislating on forests the State Legislature can legislate on matters necessarily incidental to effectuate legislation on forests but according to him acquisition of forest produce would not be incidental to the main purpose of the Act, namely acquisition of private forests themselves. He has further contended that the State Legislature cannot obtain legislative competence under Entry 19 in List II to legislate for acquisition of forest produce by giving to the expression 'forest' an artificial meaning which it does not bear as a matter of plain language, even taking the widest meaning which is given to that expression in standard dictionaries. He has pointed out that the expression 'forest' has been artificially denned in Section 2(c-1) of the Act by including within its compass 'all forest produce therein, whether standing, felled, found or otherwise' and further since the said definition includes certain lands which are 'deemed forests', even the forest produce of such deemed forest would also be included in the definition of 'forest', which would be beyond the competence of the State Legislature, inasmuch as, under Entry 19 in List II read with Entry 42 in List III the Stat Legislature is entitled to legislate only upon the topic of acquisition of private forest, the expression 'forest' receiving its ordinary dictionary meaning. Mr. Paranjpe appearing for some of the interveners has contended that both the definitions of 'forest' and 'private forest' have been artificially extended by including in them lands as well as forest produce, which by no stretch of imagination can be included therein accordr ing to the normal connotation of forest o* private forest; for instance, according to him, by artificially extending the meaning of the 'forest' the State Legislature has brought within its fold lands where quarrying of stones would be in operation and that. the definition of private forest in Section 2 (f) is made so large and extensive that it would include quarries and mines and other lands, which may not be described as forests by the device of (a) issuing a notification under Section 34A of the Forest Act, 1927 or (b) by issuing a notification under Section 35(1) of the said Act or (c) by giving a notice under Section 35(3) of the said Act or (d) by issuing a notification under Section 38 of the said Act and as such these definitions would be beyond the legislative compe-tence of the State Legislature. Looking at the question from another angle counsel for the petitioners have contended that by the device of enacting artificial definitions of the expressions 'forest' and 'private forest' the State Legislature has enacted this measure for the purpose of acquiring forest produce under the guise of legislating on acquisition of private forest under Entry 19 in List II read with Entry 42 in List III, but since the legislature can be said to have transgressed its limits, the enactment to the extent to which it purports to vest forest produce in the State is a piece of colourable legislation and as such the same is, to that extent, liable to be struck down as being beyond its competence. (Vide K.C. Gajapati Narayan Deo v. State of Orissa, ). Counsel for the , petitioners have also urged that since the topic of 'forest produce' is a distinct and independent species of property, and the same is not covered by any other specific entry in any of the three Lists in the 7th Schedule it will fall hi the residuary Entry 97 in List I and as such Section 3 of the Act will be trenching upon that Union entry and therefore to the extent that it purports to vest forest produce in the State Government will have to be struck down. Lastly, counsel have contended that in any event on its proper construction Section 3 of the Act vests in the State Government all 'private forests' and the expression 'private forest' occurring in the operative part of Section 3 must mean private forest as defined in Section 2 (f), in which definition 'forest produce' is not included and as such on a strict construction of Section 3 read with Section 2 (f) forest produce of the private forests would not vest in the State; the contention is that by the Amending Act 72 of 1975 Clause (vii) which spoke of 'all forest produce there-in, whether standing, felled, found or otherwise' which had been initially added to the definition of 'private forest' was deleted therefrom and the same has-been inserted as Clause (v) in the definition of the expression 'forest' in Section 2(c-1) and as such the amending measure has misfired.

14. On the other hand, Mr. Gursa-hani appearing for the Advocate General and State of Maharashtra and counsel for the other respondents have refuted the challenge to Section 3 of the Acquisition Act based on the ground of lack of legislative competence. Mr. Gursahani has urged that the entries in the three lists are legislative heads or fields of legislation, that they demarcate the area over which appropriate legislation can operate and as per the well settled rules of interpretation widest amplitude is required to be given to the language of the entries and therefore, according to him, the legislative head 'forest' under Entry 19 in List II if liberally construed would include 'forest produce', a kind of property that owes its origin to 'forest'; in other words, according to him, the concept of 'forest' in its natural and popular connotation includes forest produce as a part and parcel thereof. He has urged that the dictionary meaning of the word 'forest' would not be the correct guide while interpreting or construing a legislative head under any particular entry in any of the three Lists of the 7th Schedule. He has therefore contended that Section 3 of the Act even when it seeks to vest forest prodiice in the State Government along with private forests that are acquired by the State thereunder would be within the legislative competence of the State Legislature under Entry 19 in List II read with Entry 42 in List III of the 7th Schedule to the Constitution. Alternatively, he has contended that Section 3 in so far as it seeks to vest forest produce in the State Government along with private forests would also fall within the legislative competence of the State Legislature on the basis of doctrine of ancillary and incidental .powers, inasmuch as, according to him, acquisition of forest produce would be incidental to the main purpose of the Act, namely acquisition of private forests themselves. As regards the so-called artificiality to be found in the definitions of the two expressions 'forest' and 'private forest' and the submissions based thereon, he has in the first place contended that if the legislative head 'forest' is construed liberally so as to include 'forest produce' also, then, there will be no question of the State Legislature having obtained legislative competence by resorting the device of giving an artificial meaning to the expressions 'forest' and 'private forest' and secondly, according to him, even if there be some artificiality in the definitions of the two expressions, that artificiality does not introduce any matter over which the State Legislature lacks legislative competence and as such Section 3 along with the definitions would be valid. He has disputed that the State Legislature has transgressed its limits or on that account the Act is liable to be struck down as a piece of colourable legislation. Further, apart from contending that the Acquisition Act and Section 3 thereof properly falls under Entry 19 in List II read with Entry. 42 in List III, Mr, Gursahani and counsel for the other respondents have also suggested that the said Act would fall within the legislative competence of the State Legislature either under Entry 42 (Acquisition and Requisitioning of Property) in List III simpliciter or under Entry 18 (Lands etc.) in List II read with Entry 42 (Acquisition and Requisitioning of Property) in List III or under Entry 20 (economic and social planning) in List III of the 7th Schedule. It was emphatically disputed by them that the Act and Section 3 thereof to the extent to which it seeks to vest forest produce in the State Government along with private forests impinges on the residuary Entry 97 in List I or that on that account the same is liable to be struck down. Lastly counsel for the respondents have also refuted the contention that the Amending Act 72 of 1975 has misfired in the manner suggested.

15. Counsel for the petitioners have rejoined to the contention urged on behalf of the State and other respondents that the impugned Act would fall within the legislative competence of the State Legislature either under Entry 42 in List III simpliciter or under Entry 18 in List II read with Entry 42 in List III or under Entry 20 in List III of the 7th Schedule. It has been contended on behalf of the petitioners that Entry 42 in List III by itself would not be sufficient to cover the impugned Act for Entry 42 in List HI will have to be read along with some other entry in List II or List III over which the State Legislature has competence to legislate and for diverse substantial reasons such a limitation will have to be read into Entry 42 in List III; according to counsel for the petitioners, the State Legislature would have power to acquire property provided such property falls under any other head of the legislation either in List II or List III over which the State Legislature has power to legislate; in other words, just as topics like 'Land' or 'Forests' falling in Entry 18 or 19 by themselves do not carry with them the power to legislate for their acquisition, that is to say, these entries by themselves do not confer power on the State Legislature to acquire them without recourse to Entry 42 in List III, so also Entry 42 in List III by itself is not sufficient to confer power on the legislature to acquire any property but the property sought to be acquired by the State Legislature must fall in some entry in either List II or List III over which it has competence to legislate. Counsel for the petitioners have also urged that the avowed object of the enactment being acquisition of private forests the measure cannot be justified under Entry 18 in List II which refers to land and rights in and over land read with Entry 42 in List III. As regards Entry 20 in List III counsel for the petitioners have contended that the said Entry is too vague to sustain the impugned enactment and in any case no materials have been placed by the respondents before the Court on the basis of which the enactment can toe justified under that Entry.

16. Having regard to the rival contentions that have been summarised above in regard to the ground of legislative competence of the State Legislature, it will be clear that the principal question that arises for our determination is whether the impugned Act and Section 3 thereof to the extent to which it seeks to vest forest produce in the State Government along with private forests are within the legislative competence of the State Legislature under Entry 19 (Forests) in List II read with Entry 42 (acquisition and requisitioning of property) in List III of the 7th Schedule to the Constitution? As indicated earlier, the gravamen of attack of Messrs Singhvi, Seervai, Paranjpe, Rana and other counsel for the petitioners has been that the expression 'forests' in Entry 19 in List II does not include 'forest produce' and therefore the main question is : What is the true scope of Entry 19 when it uses only one word 'forests'? What would it properly include? Before we address ourselves to this question, it will be desirable to notice in brief the scheme of our Constitution pertaining to distribution of legislative powers and to refer to the general principles governing the construction of the entries in the three Lists of the 7th Schedule which are well settled.

IT. Under our constitutional scheme the entire legislative power is distributed between the Parliament and the State Legislatures; the framers of the Constitution have divided all conceivable topics or subjects, being 209 in number, in three legislative lists, the division between Parliament and State Legislatures depending broadly on their national and local importance, with the third list containing subjects of common interest. List I being Union List comprises 96 heads or subjects; List II being the State List comprises 66 heads or subjects while List III comprises 47 heads or subjects and ordinarily all the Entries in the three Lists in between them exhaust all conceivable subjects of legislation. By way of abundant caution, residuary power in regard to unforeseen topics or subjects is vested in the Parliament under residuary Entry 97 in List I. The Lists merely contain enumeration of subjects while the actual distribution of legislative powers has been made by Articles 245 and 246 and under the scheme of these two articles the position becomes clear that Parliament as well as State Legislatures are sovereign legislative bodies possessing plenary legislative powers within the ambit of Entries assigned to them, subject to primacy being given to the laws made by Parliament over the State laws with respect to 'any of the matters enumerated in the Concurrent List. Article 248 confers exclusive residuary powers of legislation upon Parliament to make any law with respect of any matter not enumerated in the Concurrent List or State List and this article has to be read with Entry 97 [n the Union List. In connection with the aforesaid scheme pertaining to distribution of legislative powers two things appear to be well settled. First, every effort having been made to make the three Lists as comprehensive and exhaustive as .possible, the specific Entries in the three Lists in between them must be held to exhaust all conceivable topics or subjects of legislation and therefore whenever any matter is dealt with by any particular Act, an attempt will have to be made to allocate such matter to one or the other of the Entries in these Lists and secondly, it is only when such attempt fails that the Court can fall back upon the residuary Entry 97 in List I, for, resort to residual power should be the last refuge. It has been so held by the Federal Court In the case of Subrahmanyan Chettiar v. Muttuswami, AIR 1941 FC 47, in the context of the scheme of distribution of legislative powers under the Government of India Act, 1935, which scheme has been substantially borrowed by the Constitution-makers in the Constitution. Head-note (d) which is relevant runs thus:

"For the purpose of determining the category in Lists I, II and III into which the matters with which a particular Act of the Provincial Legislature deals, fall resort to the residual power under Section 104 should be the very last refuge. It is only when all the categories in the three Lists are absolutely exhausted that the Court should fall back upon a nondescript."

18. We may now refer to a few decisions in which the general principles governing interpretation or construction of Entries in the legislative Lists in a Federal Constitution have been laid down. In the leading case of United Provinces v. Mt. Atiqa Begum , the question that arose before the Court was whether the power to legislate in regard to 'collection of rents' in Entry 21 in List II of the 7th Schedule to the Government of India Act, 1935 (corresponding to present Entry 18 in List II in 7th Schedule to the Constitution) could include the legislative power to grant 'remission of rents' and the Court answered the question in the affirmative after holding that none of the items in the Lists should be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in it. Chief Justice Maurice Gwyer at p. 25 of the report has observed thus:

"The subjects dealt with in the three legislative lists are not always set out with scientific definition. It would be practically impossible for example to define each item in the Provincial List in such a way as to make ii exclusive of every other item in that listj and Parliament seems to have, been content to take a number of comprehensive categories and to describe each of them by a word of broad and general import...... I think however that none of the items in the lists is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it."

In Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal, , the question before the Court was whether the West Bengal Oriental Gas Company Act, 1960 was within the legislative competence of West Bengal State Legislature and while discussing the scope of the expression 'industry' occurring in Entries 7 and 52 in List I and also occurring in Entry 24 in List II and the limits introduced thereon by the wording of the Entries 25, 26 and 27 in List II, Subba Rao J. referred to certain well settled rules of interpretation governing the construction of Entries in the Lists given in Schedule 7 of the Constitution, which have been succinctly summarised in head note (c) of the report which runs thus:

"In the matter of construing entries in the Lists given in Schedule VII of the Constitution, the following rules of interpretation are now well settled, The power to legislate is given to the appropriate Legislatures by Article 246 of the Constitution, The entries in the three Lists are only legislative heads or fields of legislation, they demarcate the area over which the appropriate Legislatures can operate. It is also settled that widest amplitude should be given to the language of the entries. But some of the entries in the different lists or in the same list may overlap and sometimes may also appear to be in direct conflict with each other. It is then the duty of the Court to reconcile the entries and (bring about harmony between them. The 'underlying principle in such cages is that a general power ought not to be so construed as to make a nullity of a particular power conferred by the same Constitution and operating in the same field, when by reading the former in a more restricted sense effect can be given to the latter in its ordinary and natural mean-Ing. Thus, every attempt should be made to harmonize the apparently conflicting entries not only of different Lists but also of the same List and to reject that construction which will rob one of the entries of its entire content and make it nugatory."

In the case of Harakchand Ratanchand Banthia v. Union of India, , the question before the Court was whether preparation and manufacture .of gold ornaments by goldsmith in India, though it involved personal skill .and craft, would fall within the connotation of the word 'industry' in Entry 52 in List I and Entry 33 in List II and the same was answered in the affirmative and the Court held that such manufacture could properly come within the purview of the Gold (Control) Act, 1966 enacted by Parliament Hamaswaroi J. reiterated some of the principles enunciated by Subba Rao J. in Calcutta Gas Co. case and observed thus:

"...... The entries in the three Lists are only legislative heads or fields of legislation; they demarcate the area over which the appropriate legislatures can operate. It is well established that the widest amplitude should be given to the language of the entries." (Para 6)

"...... The legislative entries must be given a large and liberal interpretation, the reason being that the allocation of subjects to the lists is not by way of scientific or logical definition but is a mere enumeration of broad and comprehensive categories." (Para 7) In Second Gift Tax Officer, Mangalore v. D.H. Hazareth AIR 1970 SC 999, the Court while coming to the conclusion that the Gift Tax Act enacted by the Parliament lell within the residuary Entry 97 of List I read with Article 248 Of the Constitution and was therefore validly enacted, has made certain general observations which are material. In paragraph 5 Hidayatullah C.J. observed thus:

"It will, therefore, be seen that the sovereignty of Parliament and the Legislatures ig a sovereignty of enumerated entries, but within the ambit of an entry, the exercise of power is as plenary as any legislature can possess subject, of course, to the limitations arising from the Fundamental Rights. The entries themselves do not follow any logical classification or dichotomy As was said in State of Rajasthan v. G. Chawla, , the entries in the lists must be regarded as enumeratio simplex of broad categories. Since they are likely to overlap occasionally, it is usual to examine the pith and substance of legislation with a view to determining to which entry they can be substantially related, a slight connection with another entry in another list notwithstanding. Therefore, to find out whether a piece of legislation falls within any entry, its true nature and character must be in respect to that particular entry. The entries must of course receive a large and liberal interpretation because the few words of the entry are intended to confer vast and plenary powers......"

It may be stated that Article 246 of the Constitution confers power upon the Parliament as well as the State Legislatures to make laws 'with respect to' any of the matters enumerated in their respective Lists as well as in the Concurrent List. Similar expression 'with respect to' also occurred in the corresponding Section 100 of the Government of India Act, 1935 and Sulaiman J. has explained the impact of that expression in the case of Subrahmanyan Chettiar v. Muttu-swami Goundan the learned Judge has observed thus:

"No doubt, every effort appears to have been made to make the three lists as comprehensive and exhaustive as well as exclusive as possible......... Nevertheless, in view of the large number of items in the three lists, it is almost impossible to prevent a certain amount of overlapping. Absolutely sharp and distinct lines of demarcation are not always possible, Rigid and inflexible watertight compartments cannot be ensured. A hard and fast rule of exclusion derived from the strict literal language of Section 100 may therefore, be quite impracticable and unworkable. To avoid such difficulties the Imperial - Parliament has thought fit to use the expression 'with respect' which obviously means that looking at the legislation as a whole, it must substantially be with respect to matters in one list or the other. A remote connexion is not enough."

19. A few decided cases may be referred to for illustrating how widely and broadly some of the Entries have been construed in spite of their limited dictionary connotation. Entry 11 of List II deals with education and runs thus: "Education including universities subject to the provisions of Entries 63, 64, 65, 66 of List I and Entry 25 of List III". The expression 'education including universities' occurring in this Entry has been interpreted in the case of Gujarat University v. Krishna Ranganath Mudholkar, , by Shah J. (as he then was) who spoke for the majority as to include 'all matters relating to imparting and controlling education' as also 'medium of instruction'. Subba Rao J. who delivered a dissenting judgment on other points, observed at p. 722 as follows:

"To illustrate: education cannot be imparted effectively without books, professors, students, equipment, buildings, finance, proper medium of instruction, etc. All the said matters admittedly are comprehended by the word 'education', for they are the necessary concomitants of education."

In the case of Katra Education Society, Allahabad v. State of Uttar Pradesh, , legislative power under this very Entry 'Education' (Entry 11 of the List II) has been held to include power to impose restrictions on the management of educational institutions in matters relating to education. In the case of Manikkasundara Bhattar v, R. S. Nayudu AIR 1947 FC 1, the Madras Temple Entry Authorisation and Indemnity Act of 1939 was held to be within the legislative competence of the State Legislature under the expression 'charities' occurring in Entry 34, List II of the Government of India Act, 1935. The Court held that the word 'charities' was "an appropriate generic term of wide scope and meaning apt to include all public secular charitable and religious trusts and institutions recognised as such by British Indian Law and a power to legislate in respect of 'charities' will include a power to legislate in respect of all matters connected with religious charities and institutions." In the State of Bombay v. F. N. Balsara AIR 1951 SC 318, the expression 'intoxicating liquor' in Entry 31 of List II of Government of India Act, 1935 was interpreted to in elude all liquids containing alcohol irrespective of whether it was used for beverage purposes and produced intoxication or not, though the ordinary popular or dictionary meaning of liquor was not so wide and was confined to beverages. Of course, it must be stated that this was so held because of legislative practice in the country, ,but all the same dictionary meaning was not regarded as conclusive, in Kesavananda Bharati's case, Justice Chandrachud while considering the true meaning and scope of words like 'amending' in Article 363 or 'law' in Article 13(2) of the Constitution (at p. 2027) has observed thus:

"It is useful to have a dictionary by one's side and experience has it that a timely reference to a dictionary helps avert many an embarrassing situation toy correcting one's inveterate misconception of the meaning of some words. But I do not think that mere dictionaries will help one understand the true meaning and scope of words like 'amendment' in Article 368 or 'law' in Article 13(2). These are not words occurring in a school text-book so that one can find their meaning with a dictionary on one's right and a book of grammar on one's left. These are words occurring in a Constitution and one must look at them not in a schoolmasterly fashion, not with the cold eye of a lexicographer, but with the realization that they occur in "a single complex instrument, in which one part may throw light on another", so that "the construction must hold a balance between all its parts". Per Lord Wright in James v. Commonwealth of Australia, (1936) AC 578, 613. Such words, having so significant an impact on a power as important as the power to amend the Constitution cannot fee read in vacuo." These observations clearly show that in construing the words occurring in a document like the Constitution either in its Articles or in the Entries obtaining in the three Legislative Lists, dictionaries may not afford an infallible guide.

20. From the above discussion the following general principles would be clearly deducible: (a) Entries in the three Lists are merely legislative heads or fields of legislation, they demarcate the area over which the appropriate legislatures can operate; (b) Allocation of subjects in the Lists is not by way of scientific or logical definition but is a mere enumeration of broad and comprehensive categories; dictionary meaning of the words used, though helpful, is not decisive; (c) Entries should be interpreted broadly and liberally, widest amplitude being given to the words employed, because few words of an entry ere intended to confer vast and plenary powers; (d) Entries being heads of legislation, none of the items in the Lists is to fee read in a narrow and restricted sense but should be read broadly so as to cover or extend to all cognate, subsidiary, ancillary or incidental matters, which can fairly and reasonbly be said to be comprehended in it; (e) Since the specific entries in the three Lists between them exhaust all conceivable subjects of legislation, every matter dealt with by an enactment should as far as possible be allocated to one or the other of the Entries in the Lists and the residuary Entry 97 in List I should be resorted to as the last refuge; and (f) If entries either from different Lists or from the same List overlap or appear to conflict with each other, every effort is to be made to reconcile and bring out harmony between them by recourse to known methods of reconciliation. It is by reference to these general principles that the question about the true scope and ambit of Entry 19 of List II which deals with 'forests' will have to be decided.

21. Entry 19 of List II consists of only one word or expression 'forests' and the principal question is whether as a legislative head that expression takes within its sweep 'forest produce' so as to render Section 3 valid as falling within the State's legislative competence. In order to decide this question, we will have to answer two queries: (1) What is really meant by expression 'forest produce'? and (2) What is it that the State Legislature has intended to include in the concept of 'forest produce' for the purpose of vesting the same in the State Government along with private forests under Section 3 of the impugned Act? It is these two queries which form the crux of the problem before us and the answers to these queries will furnish a satisfactory solution to the problem. Dealing first with the expression 'forest' it cannot be disputed that that expression in its normal and popular connotation includes all that goes with it, such as, trees with fruits on them, shrubs, bushes, woody vegetation, undergrowth, pastures, honey-combs attached to trees, juices dried on trees, things embedded in the earth like mines and quarries with their produce locked up in the land, wild and stray animals (excluding domestic animals like cows, buffalos, goats, sheep etc.) living in the forest; in other words, forest produce in its primary and natural state lying in the forest as well as wild animals living therein unquestionably go with the forest and there can be no dispute that such forest produce and such wild animals would be included in the concept of forest and the expression 'forests' as a legislative head would surely include within its compass all these things. The next question is whether when such forest produce gets severed from its place of birth or origin it ceases to be a part of the forest? Standing trees laden with fruits, shrubs, bushes, honey-combs, etc. may get uprooted or may fall by forces of nature like strong gale, hail-storms, etc. but may continue to lie in a fallen condition in the forest. It is true that ordinarily fallen trees cease to be trees due to loss of connection with land that provides them sustenance and nourishment but surely fallen trees if they continue to lie there in the same condition form part of the forest and similarly uprooted shrubs and busheg and even fruits and honeycombs that have fallen if these continue to lie in the same condition in the forest they would form part of the forest. Therefore, such forest produce though severed from its place of birth or origin will certainly continue to. form part of the forest and as such will be included in the concept of forest. The further question is what happens if the severance occurs by the intervention of a human agency? In our view, even if any forest produce is severed from its place of birth or origin through the intervention of a human agency, if such severed forest produce continues to lie in the forest in its primary or predominantly primary state without anything being done to it for altering or changing its natural condition, the same will still form part of the forest. In our view, in principle there is no difference between the forest produce that has naturally fallen and the forest produce that has been felled or detached from its place of birth or origin by human agency so long as it continues to lie in the forest in its primary or predominantly primary state; for instance, if the standing trees are felled and such felled trees continue to lie in the forest in the same condition without anything being done to them in the direction of converting or fashioning them into logs, these would still form part of the forest; similarly, if honey-combs are detached from trees by a human agency but continue to lie in the forest in the same condition without the process of extracting honey therefrom in containers being undertaken, they would form part of the forest. Similarly, if mines and quarries remain beneath the surface of the earth with minerals, stones and other products locked up in the land, these will form part of the forest. What types of processes undertaken will make such forest produce, severance whereof from its place of birth or origin has been effected by a human agency, ceases to be in its primary or predominantly primary state will depend upon the nature or kind of the produce and the degree of sophistication done to it and will have to be decided on the facts of each case, but so long as any such forest produce, whether attached to or detached from its place of birth or origin, is lying in the forest in its primary or predominantly primary state, it will form part of the forest and the expression 'forest' will include it within its compass.

22, Looked at from this angle, it is difficult to accept the broad proposition urged by counsel for the petitioners that the expression 'forests' in Entry 19 in List II because of its dictionary meaning will not include forest produce on the ground that the forest produce is a distinct and separate species of property. In our view, even the dictionary meaning of the word 'forest' does not lend support to such a contention. It is true that in Oxford English Dictionary, Vol. IV, at p. 422 three meanings of the word 'forest' have been given viz. (i) an extensive tract of land covered with trees and undergrowth, sometimes intermingled with pasture; also the trees collectively of a 'forest'; (ii) (legal meaning) a woodland district, usually belonging to the King, set apart for hunting wild beasts and game etc and (iii) a wild uncultivated waste, wilderness. Relying on the first of the three meanings which would be applicable, counsel for the petitioners have contended that the dictionary meaning shows that a forest is basically a land of a particular description viz. land covered with trees and undergrowth etc.; and therefore the further contention is that the expression 'forest' cannot as a matter of plain language apply to forest produce in the form of moveable property lying on the land; in other words, forest produce being a distinct and separate species of property the same is not covered within the expression 'forest'. In our view, to say that forest is basically a land of particular description and that it does not include 'forest produce' as it is a distinct species of moveable property is to adopt a technical and an erroneous approach. The words 'covered with trees and undergrowth, sometimes intermingled with pasture' which follow the expression 'an extensive tract of land' cannot be regarded as mere words of description, describing a particular type of land, but are words which show what is included in the 'forest'. In other words, even the dictionary meaning clearly shows that 'forest' means 'an extensive tract of land together with the trees and undergrowth which covers such tract and also includes pastures which intermingled with such tract. That a forest includes trees' becomes very clear from the second part of the applicable meaning where it is stated: 'forest' means 'also the trees collectively of a forest'. In our view, therefore, even the dictionary meaning of the expression 'forest' makes the position clear that 'forest' means not only an extensive tract of land but includes the trees, undergrowth and pastures grown or found lying on such tract of land. The expression 'forest produce' need not and cannot be confined only to that type of produce which has got severed or detached from its place of birth or origin and has become moveable property as is sought to be suggested but includes both types of produce, severed as well as unsevered from its place of birth or origin. In other words, the aspect whether a particular forest produce has become moveable property or not by reason of either physical severance from its place of birth or origin or legal severance, as in the case of standing trees under a contract of sale where property has passed to the purchaser, is not of much consequence, but the test would be whether the forest produce, even if it were severed from its place of birth or origin either physically or legally, is lying in the forest in its primary or predominantly primary state and if it is so lying, it will form part of the forest and the expression 'forests' as a legislative head under Entry 19 of List II will include the same within its compass but if such produce has ceased to be in its primary or predominantly primary state by reason of any sophistication done to it the same will not form part of the forest and the legislative head 'forests' under Entry 19 of List II will not include it within its scope.

23. Having answered the first query in the aforesaid manner, we shall now deal with the second question as to what is it that the State Legislature has intended to include in the expression 'forest produce' for the purpose of vesting the same in the State Government under Section 3 of the Act, for, having regard to our aforesaid conclusion on the first query if the State Legislature has attempted to vest in the State Government only such forest produce as lies in its natural or primary condition in the private forest concerned, Section 3 would be within its competence, but on the other hand, if the State Legislature has attempted to include forest produce which has ceased to be in its natural or primary condition or in its predominantly natural or primary condition by reason of any processes being applied to it, such attempt would obviously be beyond its legislative competence and Section 3 to that extent will have to be struck down. In order to decide this question we will have to consider the true effect of the artificial definitions of the two expressions 'forest' and 'private forest' given in Section 2(c-l) and Section 2(f) read with Section 3 of the impugned Act. Two or three contentions have been urged before us by counsel for the petitioners in this behalf. In the first place, it is contended that the expression 'forest' has been so artificially defined in Section 2(c-1) that besides including within its compass a natural forest as per dictionary meaning (vide meaning part of the definition), the expression includes certain types of lands (vide Sub-clause (i) to (iv) which are not natural forests but are regarded as deemed forests and by the inclusive sub* Clause (v) all the forest produce not merely of the natural forest but of such deemed forests has been included in the definition of forest; that even where the definition seeks to define a natural forest (in the meaning part of the definition) an artificiality is introduced, inasmuch as, trees which form part of natural forest are qualified by the words 'whether standing, felled, found or otherwise' and that even in Sub-clause (v) when it artificially includes all the forest produce in the definition of forest, the same type of artificiality is introduced toy qualifying the expression 'forest produce' by the words 'whether standing, felled, found or otherwise'. Secondly, it is contended that the expression 'private forest' has been similarly artificially defined so as to include within its compass six heads under Sub-clauses (i) to (vi) out of which the first four sub-clauses at any rate refer to lands in respect of which some action has been taken by Government under Sections 34A, 35(1), 35(3) and 38 of the Indian Forest Act, 1927 and by such device mines and quarry lands, which may not be properly described as 'forest' have been included and it has been urged that at least in respect of lands covered by Sub-clause (iii) these would become 'forest' by mere issuance of a notice under Section 35(3) without any inquiry or hearing, since with effect from 30-8-1975. Section 35 of the Forest Act has been repealed and what is more, all the produce of such lands as would fall within Sub-clauses (i) to (iv) is sought to be vested in the State Government irrespective of whether such lands are truly forests in the natural sense of the term or not; in other words, both these artificial definitions are beyond the legislative competence of the State Legislature. Thirdly, it has been contended that the expression 'forest produce' has not been defined in the impugned Act but by reason of Section 2 (h) that expression will have the same meaning as has been assigned to it in Section 2(4) of the Forest Act, 1927 and it is further pointed out that under Section 2(4) of the Forest Act forest produce includes under Sub-clause (a) 'timber' and under Sub-clause (b-i) 'trees' and these two expressions 'timber' and 'trees' ere further defined in Section 2(6) and Section 2(7) of the Forest Act and the contention is that these definitions contained in Section 2(4), 2(5) and 2(7) of the Forest Act will have to be read into the expression 'forest produce' occurring in Section 2(c-1)(v) and if that is done, forest produce under Section 2(c-1)(v) would include several items of forest produce wherever found and in whatever form (natural or sophisticated) and irrespective of whether they belong to the concerned private forest or not and that would certainly be ibeyond the legislative competence of the State Legislature.

24. At the outset it may be pointed out that we are not concerned in this case with forest produce that may grow or would be found lying in the private forests after 30th Aug. 1975, for, it was not dispute before us that all forest produce in future after the private forests have vested in the State Government under Section 3 of the impugned Act would belong to the State Government and in these petitions we are merely concerned with forest produce of these private forests already grown therein or which was lying there prior to 30th Aug. 1975 and the question is how much such forest produce vests in the State Government under Section 3 of the Act, particularly having regard to the artificial definitions of 'forest' and 'private forest' having been incorporated in the enactment. Now, it cannot be disputed that it is permissible to the State Legislature to introduce artificial definitions in an enactment and even to direct that assumptions of facts be made for the purpose of the enactment, which facts may not in reality exist. However, such device obviously cannot be resorted to for enabling it to legislate on matters over which it has no legislative competence. Therefore, if it is found that an enactment seeks to cover under such artificial definition something over which the legislature has no competence, the enactment to that extent is liable to be struck down as invalid. The question in the instant case that arises for our consideration is whether by introducing artificial definitions of the two expressions 'forest' and 'private forest' in Section 2(c-1) and Section 2 (f) respectively in the Acquisition Act, the State Legislature has sought to cover or provide for something over which it has no competence. A detailed examination of these definitions, therefore, becomes necessary. 25. Dealing first with the definition of 'forest' in Section 2(c-1) it consists of the main clause indicating what the expression 'means' according to legislature and five other clauses indicating what the expression 'includes' according to legislature. The main ('meaning') clause is again in two parts; the first part refers to what can be described as natural forest except to the extent that the parenthetical words 'whether standing, felled, found or otherwise' describe trees in an artificial manner. for. it, is obvious that fallen or felled trees ordinarily cease to be trees with the loss of their connection with the land that nourishes them it is true that the parenthetical words introduce some sort of artificiality. Further in connection with the trees the expreseion 'standing, felled and found' are understandable but the expression 'or otherwise' appears to be a little inapt and it is difficult to understand what is sought to be conveyed thereby. However, it appears that the expression 'or otherwise' seems to have been used out of abundant caution for describing some condition of trees which is not covered by the earlier expressions. It is true that fallen or felled trees ordinarily cease to be trees but as discussed earlier, these without anything more being done to them, do not cease to be part of the forest if they are lying there in their primary or natural state and therefore it cannot be said that the artificiality introduces something over which the State Legislature has no competence. The second part of the main ('meaning') clause refers to another tract of land on which the growth of trees, shrubs, bushes and woody vegetation is found but not as thick as is ordinarily found in the natural forest and even such tract of land is brought within the purview of the expression 'forest' because such growth is likely to have effect on certain aspects or matters as any natural forest would have and diverse aspects or matters have been enumerated on which such growth is likely to have effect, such as, (i) on the supply of timber, fuel, forest produce, or grazing facilities, (ii) on climate, stream flow, protection of land from erosion, and (iii) on such other matters. The effect of the growth on the 'aforesaid matters is made the determinative factor for bringing in such tract of land within the purview of 'forest'. Unfortunately this clause is not happily worded, but it does appear clear that the word 'such' in the expression 'such tract of land' refers to another tract of land and the word 'such' occurring in the expression 'such growth' refers to 'similar growth' of the type mentioned in the first part of the main clause but not as thick and the expression 'other such matters' occurring at the end of the clause will have to be read jusdem generis with matters or aspects which precede that expression. In our view, this is the only reasonable manner in which the second part of the main clause can be interpreted. In other words, the second part of the main clause, seems to be intended to bring within the definition of 'forest' such other tracts of land on which growth of trees, shrubs, bushes etc. is less thicker than that of naturalj forest, conceived under the first part of the main clause, but where the growth is still capable of having the effect on the aspects or matters enumerated therein. It is clear that a reasonable nexus exists between the tract of land covered by this second part of the main clause with natural forest and the tract of land covered by this part of the main clause has ensured the existence of essential attributes of natural forest and therefore cannot be regarded as artificial. Turning to the inclusive part of the definition, Sub-clauses (i) to (iv) refer to lands of particular description viz. land covered with stumps of trees of a forest; land which is part of a forest or lies within it or was part of a forest or was lying within a forest on 30th Aug. 1975; such pasture land, water-logged or cultivable or non-cultivable land, lying within or linked to a forest, as may be declared to be forest by the State Government; and forest land held or let for purpose of agriculture or for any purposes ancillary thereto; while Sub-clause (v) includes within the definition of 'forest' "all the forest produce therein, whether standing, felled, found or otherwise". Items of land included in the first four sub-clauses unquestionably have some nexus with the natural forest. Actually lands sought to be covered by Sub-clauses (i), (ii) and (iv) present no difficulty whatsoever, (or, these sub-clauses in terms refer to pieces of lands which were essentially forests or parts thereof but have undergone some changes and alterations indicated; for instance, in Sub-clause (i) trees have been cut or dismembered and merely stumps have been left and in Sub-clause (iv) land which is essentially forest is used for the purpose of agriculture and other ancillary purposes. The changed or altered user indicated cannot alter the basic character of land being a forest. Sub-clause (iii) gives an impression as if the State Government can declare any land, even non-cultivable land, as forest and that too without leaving any remedy to an aggrieved person to demonstrate to the contrary. It is true that there its no separate section in the Act authorising the State to make such a declaration or indicating any criteria for that purpose. Even so, it seems to us clear that Sub-clause (iii) cannot be regarded as conferring unregulated authority on the State Government to make such declaration. In th first place, pasture land mentioned in Sub-clause (iii) falls within the normal dictionary meaning of the expression 'forest' but that apart, the types of land mentioned in this sub-clause viz. pasture lands water-logged or euftiva-able or non-cultivable land must either 'lie within' or be 'linked to' a forest and it is only when this condition is satisfied that the State Government can make a declaration that such land is a forest. Therefore, it cannot be said that there exists no criteria for making a declaration with regard to type of land covered by this sub-clause; its (land's) lying within or being linked to forest affords the basis ,and obviously it is left to the State Government to decide to what extent or degree such pieces of land should be closely linked with 'forest'. Objections of persons interested in such land can be adjudicated under Section 6; It is true that in the enquiry and adjudication of disputes contemplated by Section 6 the objections that are required to be considered by the Collector are whether any forest is a private forest or not and whether any private forest or portion thereof OT dwelling houses constructed therein stands acquired or vested in the Government or not. But, in our view, the objection that the land is not a private forest would also include the objection that it is not forest at all. This position, it may be stated, was conceded by Counsel appearing for the State of Maharashtra. The types of land that are sought to be included within the definition of 'forest' under Sub-clauses (i) to (iv) of the inclusive part of the definition therefore cannot be said to be remotely connected with the natural forest but are- such as possess reasonable nexus, close connection with and attributes of a natural forest and therefore, in our view, the artificiality, if any. cannot be said to introduce such matters over which the State Legislature has no competence.

26. Turning to the most material sub-clause of inclusive part of the definition viz. Sub-clause (v) whereby 'all the forest produce therein, whether standing, felled, found or otherwise' is sought to be brought within the compass of the definition, it may be stated that the expression 'forest produce' is again described in an artificial manner by qualifying the same with words 'whether standing, felled, found or otherwise -- the same type of artificiality as is to .be found in the first part of the main (meaning) clause where natural forest is defined but trees whereof are qualified by similar words 'whether standing, felled, found or otherwise. Here again, in connection with forest produce, which among others would include trees, fruits honeycombs, etc., the expressions 'standing, felled and found' are understandable, but the expression 'or otherwise' seems to 'be a little inapt, but also the expression 'or otherwise' must be taken to have been used out of abundant caution for describing some condition of forest produce which is not covered by the earlier expressions. Here also, as, discussed earlier, the fallen or felled forest produce without any changes being brought about by any process of sophistication and lying in its primary] or natural state in the forest would form part of forest and as such the; aforesaid artificiality cannot be said to I introduce something over which the State Legislature has no competence.

27. The next contention with regard to expression 'forest produce' occurring in Sub-clause (v) of Section 2(c-1) has been that the expression has not been defined in the impugned Act and by reason of Section 2 (h) the meaning that has been assigned to it in Section 2(4) of Forest Act, 1927 will have to be read into it and according to Counsel for the petitioners reading the definition of 'forest produce' in the Forest Act, 1927 in Sub-clause (v) of Section 2(c-1) of the impugned Act would lead to consequences which would be clearly beyond the legislative competence of the State Legislature It is pointed out that Section 2(4) of the' Forest Act gives merely an inclusive definition of that expression and is in two parts. Under Sub-clause (a) 'forest produce' includes several enumerated items, such as, timber, charcoal, caoutchouc, catechu, wood-oil resin, natural varnish bark, lac, rauwalfia, serpentina, etc. Whether found in, or brought from, a forest or not; and under Clause (b) forest produce includes several enumerated items, such as, trees end leaves, flowers and fruits, plants not being trees (including grass, creepers, reeds and moss) and all parts or produce or such plants, wild animals and skins, tusks, horns, bones, silk, cocoons, honey, wax and all other parts of produce of animals, peat, surface, soil, rock and minerals and all products of mines or quarries, when found in, or brought from, a forest. It is further pointed out that timber which is one of the items included in Section 2(4)(a) is separately defined in the Forest Act in Section 2(6) thereof and it includes trees when they have fallen or have been felled and all wood whether cut up or fashioned or hollowed out for any purpose or not; similarly, tree which is one of the items enumerated in Section 2(4)(b) is separately defined in Section 2(7) as including palms, bamboos, stumps, brushwood and canes. According to Counsel for the petitioners reading these three definitions given in Sections 2(4), 2(6) and 2(7) of the Forest Act, into the expression 'forest produce' occurring in Sub- Clause (v) of Section 2(c-1), it will appear clear that 'forest produce' under Section 2(c-1)(v) would include several items of forest produce wherever found and in whatever form, natural or sophisticated and irrespective of whether they belong to concerned private forest or not and this would certainly be beyond the legislative competence of the State Legislature. It is not possible to accept this contention for the reasons which we shall presently indicate.

28. In the first place, notwithstanding Section 2 (h) of the Acquisition Act, the (definition of 'forest produce' given in Section 2(4) of the Forest Act together with two ancillary definitions of 'timber' and 'trees' given in Section 2(6) and Section 2(7) cannot be read into the expression 'forest produce' occurring in Section 2(c-1)(v), not because one definition cannot be read into another as has been the contention of Counsel for the petitioners in different context, but principally for the definition of 'forest produce' in two or three reasons. In the first place, Section 2(4) of the Forest Act as also the definitions of 'timber' and 'tree' in Sections 2(6) and 2(7) occurring in the Forest Act have been given there for the purposes of Forest Act and the aims and object intended to be served by the Forest Act, 1927 are entirely different from the aims and object intended to be served by the Acquisition Act before us. The Forest Act was put on the Statute Book for the purpose of 'consolidating the law relating to forests the transit of forest produce and the duty leviable on timber and other forest produce' and it was with a view to carry out the aforesaid purposes of that enactment that certain expressions, particularly 'forest produce', timber' and 'tree' have been defined in the manner done in the definition Section 2. Width of the definitions under Sections 2(4), 2(6) and 2(7) was necessitated by the legislative anxiety to ensure prevention of thefts, proper transportation across custom frontiers and evasion of leviable duty. In contrast the aim or object of the Acquisition Act is nothing more and nothing less than the acquisition of private forests along with its produce, and the enactment has nothing to do with thefts or transportation of produce or levying of any duty thereon. The aims and objects of the two enactments being different, it would be unreasonable to read the definitions of Sections 2(4), 2(6) and 2(7) of the Forest Act into the expression 'forest produce' occurring in| Section 2(c-1)(v) of the Acquisition Act. Secondly, if so read, it would lead to incongruous and absurd results. Thirdly, Sub-clause (v) runs 'all the forest produce therein', and the juxtaposition in which the two expressions 'forest produce' and 'therein' occur clearly suggests that the context requires that the definitions in Section 2(4), 2(6) and 2(7) of the Forest Act should' not be read into Section 2. It is, therefore, not possible to read these definitions of the Forest Act, 1927 into Section 2(c-1)(v) of the Acquisition Act.

29. What then would be the true connotation of the expression 'forest produce' occurring in Sub-clause (v)? In the first place, the expression 'forest produce' occurs in Sub-clause (v) which is in the inclusive part of the definition of the expression 'forest' itself and the effect is that 'Forest' includes "all the forest produce therein". Secondly, toe-sides defining the expression 'forest' as above, the Act also defines the expression 'private forest' and thirdly, under the operative part of Section 3 of the Act all private forests have been acquired and stand vested in the State Government on and from 30th Aug 1975. This scheme of the enactment in the context of its main aim and object together with the language employed in Sub-clause (v) gives rise to certain implications, the first implication is that the produce must necessarily be the growth in and produce of the private forest concerned which is to vest in the State; the second implication is that such produce must be found or must lie in such private forest on the appointed day; and the third implication is that such produce even if severed from its place of birth (whether standing, felled or found) must be capable of being called forest produce and hence must be in its primary or predominantly primary state. The word 'therein' following immediately after the words 'forest produce' in Sub-clause (v) is not without significance and, in our view, produce removed out of the concerned forest would be outside the definition and only such produce which is still lying in the concerned forest even after severance from its place of birth or origin on 30th August 1975 is alone liable to be included provided such produce so lying there carries with it the imprints of its primary or natural condition. No sooner such produce has ceased to be in its natural or primary or predominantly natural or primary state by reason of any processes of sophistication being undertaken, the same even if it is lying there would be outside the definition. In our view, the scheme of Section 3 read with the two definitions and the word 'therein' occurring in Sub-clause (v) which is full of significance clearly bring out the legislative intent to include within expression 'forest produce' such produce which satisfied three conditions viz., (i) it must be the produce of the private forest concerned, (ii) it must be lying in the forest in normal course on the appointed day and (iii) irrespective of whether it is attached or embedded or severed from its place of birth or origin, it must be found in its primary or predominantly primary state or condition without any process of sophistication having been undertaken in regard to it. As stated earlier what types of processes undertaken will make such forest produce cease to be in its primary or predominantly primary state will depend upon the nature or kind of the produce and the degree of sophistication done to it and will have to be decided on the facts of each case. If this is the true meaning of the expression 'forest produce' occurring in Sub-clause (v) which is the inclusive part of the definition 'forest' in Section 2(c-1), in our view, the artificiality that is to be found in this part of inclusive definition the expression 'forest' cannot be said to introduce anything over which the State Legislature has no competence. Having regard to the above discussion, we have no hesitation in coming to the conclusion that Section 2(c-1) which defines 'forest', notwithstanding some amount of artificiality therein, is within the legislative competence of the State Legislature.

30. Turning to the definition of 'private forest' given in Section 2 (f), it will appear clear that even this definition consists of two parts; the first part indicating what the expression 'means' according to the Legislature and the second part indicating what the expression 'includes' according to the Legislature. In the first part 'private forest' has been defined to mean 'any forest which is not the property of the Government' while under the inclusive part six items or heads mentioned in Sub-clauses (i) to (vi) have been included in the definition. The 'meaning' part presents no difficulty and the question is about the inclusive part of the definition. The true impact of this inclusive part of the definition cannot be realised without bearing in mind the provisions of Chapter V of the Forest Act, 1927. It may be stated that the Indian Forest Act, 1927 deals with different types of forest, such as, (i) Reserved forests, (ii) Village forests, (iii) Protected forests and (iv) Forests which are not the property of Government; Chapter V deals with the fourth category of forest and contains Sections 34-A, 35 and 38. Under Section 34A it has been provided that for the purposes of that Chapter 'forest' includes any land containing trees and shrubs, pasture lands and any other land whatsoever which the State Government may, by notification, declare to be a forest. Section 35(1) enables the State Government to issue a notification regulating or prohibiting certain acts, such as, breaking up or clearing of the land for cultivation, pasturing of cattle, firing or clearing of the vegetation, girdling, tapping or burning of any tree or the stripping off the bark or leaves from any trees, cutting, sawing, conversion and removal of trees and timber; or quarrying of stone or the burning of lime or charcoal, etc., when such regulation or prohibition appears necessary for any forest not belonging to Government, for the purpose of conservation of trees and forests, preservation and improvement of soil, improvement of grazing, maintenance of a water supply In springs, rivers and tanks, maintenance, increase and distribution of the supply of fodder, leaf manure, timber or fuel, maintenance of reservoirs or irrigation works, protection of roads, bridges, railways and other lines of communication and preservation of the public health, etc. Under Sub-section (3) of Section 35 it is provided that no notification under Sub-clause (1) shall be issued until after a show cause notice to the owner of such forest has been issued and until his objections, if any are heard and considered by Government. Section 38 provides for protection of private forest at the request of the owners and states that upon a request in that behalf being made by the owners the State Government can apply the provisions of the Forest Act to such private forest by means of a notification. If Sub-clauses (i) to (iv) of Section 2(f) are read in the light of the aforesaid provisions of Sections 34A, 35 and 38 of the Forest Act, 1927, it will appear clear that these Sub-clauses bring within the definition of private forest four types of land in respect of which action has been taken by the State Government under Sections 34A, 35(1), 35(3) and 38 of the Forest Act. Sub-clause (i) brings within the definition of 'private forest' any land declared before the appointed day to be a forest under Section 34A of the Forest Act and Sub-clause (ii) brings any forest in respect of which a notification under Section 35(1) of the Forest Act has been issued immediately before the appointed day within the category of 'private forest'. Both the sections viz. 34A and 35 of the Forest Act have been repealed with effect from 30th Aug. 1975 after the coming into force of the Acquisition Act and in view of such repeal no fresh declaration by issuing a notification under Section 34A or fresh issuance of a notification under Section 35(1) is now possible. As regards action taken either under Section 34A or under Section 35(1) prior to 30-8-1975 our attention was not drawn to any defective declaration or defective notification issued under either of these provisions. Moreover, it would be reasonable to assume that such prior declaration under Section 34A was in respect of such land as possessed the essential attributes of a forest. Prior action under Section 35(1) must have been merely regulatory or prohibitory of certain acts specified in the section and that too in respect of 'forest' inasmuch as the power to issue such regulations or prohibitions is confined to forests. No grievance can be made with regard to action taken by means of a notification under Section 38 of the Forest Act in respect of land mentioned in Sub-clause (iv), inasmuch as, such action is taken with a view to formation or conservation of forest over such land at the request of the owners of land. It is thus clear that Sub-clauses (i), (ii) and (iv) of Section 2(f) deal with declared, adjudicated or admitted instances of forests. Sub-clause (iii) of Section 2(f) no doubt seeks to cover land in respect of which merely a notice has been issued to the owner of a private forest under Section 35(3) and his objections may have remained unheard till 30-8-1975 as Section 35 has stood repealed on the coming into force of the Acquisition Act. Here also, as in the case of owners of land falling under Sub-clause (iii) of Section 2(c-1), his objections, if any, including his objection that his land cannot be styled as forest at all can be heard and disposed of under Section 6 of the Acquisition Act, and this position was conceded by Counsel appearing for the State of Maharashtra. Sub-clause (v) includes within the definition of private forest the interest of another person who along with Government is jointly interested in a forest, while Sub-clause (vi) includes sites of dwelling houses constructed in such forest which are considered to be necessary for the convenient enjoyment or use of forest and lands appurtenant thereto. In our view, the artificiality involved, if any, in the definition of 'private forest' in Section 2(f) is indeed of a very minor nature and does not introduce anything over which the State Legislature has no competence. The contention of Mr. Singhvi and Mr. Paranjpe that under the artificial definitions even lands which cannot by any stretch of imagination be regarded as forest in its normal or natural connotation have been brought within that concept as well as their apprehension that lands which may be barren tracts where quarrying operations may be carried on may be included in the artificial definitions under the power of declaration conferred on the State without any hearing are misconceived. In the first place, the artificial parts of the two definitions of 'forest' and 'private forest' do not do anything of the kind as suggested and secondly under Section 6 of the Act owners of such land which is sought to be declared as forest would have an opportunity of raising objections to the proposed declarations and of satisfying the Government that their lands are not and cannot be treated or declared as forests.

31. We may now deal with two more submissions that have been urged by Counsel for the petitioners in support of the contention that the forest produce, of the private forests which vest in the State Government under Section 3 of the Act, was not intended to pass to the State Government, one based on the construction of Section 3 read with the two definitions of 'forest' and 'private forest' given in Sections 2(c-1) and 2(f) respectively and the other based on the absence of any provision for payment of compensation or amount for acquisition of forest produce in the Act. Dealing with the first aspect Mr. Seervai has contended that on its proper construction Section 3 of the impugned Act vests in the State Government all private forests and the expression 'private forest' occurring in the operative part of that section must mean 'private forests' as defined in Section 2 (f) in which definition 'forest produce' is not included and therefore on a strict construction of Section 3 read with Section 2 (f) no forest produce of the private forests which have vested in under Section 3 would vest in the State. He has urged a two-fold argument in support of this construction. In the first place the word 'forest' in the composite expression 'private forest' must mean natural forest according to the dictionary meaning and that word cannot be given the artificial meaning which has been assigned to it in Section 2(c-1), for, according to him, one definition cannot be read into another definition and as such though the definition of 'forest' in Section 2(c-1) includes 'forest produce' under Sub-clause (v) of that definition, the same cannot he read into or form part of 'private forest under Section 2 (f). Secondly, when Act 29/75 was initially amended by Ordinance 13 of 1975 Sub-clause (vii) which spoke of 'all the forest produce therein' was added in the definition of 'private forest' in Section 2 (f) but when the Act was further amended by the Amending Act 72 of 1975 (which replaced the Ordinance) that Sub-clause (vii) was deleted from Section 2 (f) and was added as a new Sub- Clause (v) to the definition of 'forest' under Section 2 (c-1) and as such the amending measure (Act 72 of 1975) must be held to have misfired. The net result, according to Mr. Seervai, is that the forest produce would not vest in the State Government along with private forests on a proper construction of Section 3 of the Act. It is not possible to accept this contention for the reasons which we shall presently indicate.

32. In the first place, the scheme clearly shows that under Section 3 all private forests vest in the State Government and since both the expressions --'forest' as well as 'private forest' --have been defined in the Act what vests in the State Government is 'private forest' as per Section 2 (f) and in order to be 'private forest' under Section 2 (f) it must be 'forest' under Section 2 (c-1) in the first instance and read in this manner the expression 'all the private forests' occurring in Section 3 will include 'forest produce.' it is not possible to accept the argument that the word 'forest' occurring in the composite expression 'private forest' should not be given the meaning which has been assigned to it in Section 2 (c-1). It has been urged that the function of a definition section or Interpretation Clause is to define the words so that when they are used in the enacting parts of the Act they have the meaning assigned to them in the definition section 'unless the context otherwise requires' and it is pointed out that the words in the opening part of Section 2 viz. 'unless the context otherwise requires' are inapplicable to the definition sections themselves, for, the definitions in Interpretation Clauses have no context and the question of context only arises when the words defined are used in a section (enabling part of the Act) and it is possible that the context of that section by itself or read along with other sections may require a different meaning being given to that word than the meaning assigned to it by the definition section. No authority was cited for the proposition that one definition cannot be read into another definition in an enactment. In fact, such proposition runs counter to the mandate contained in the opening words of Section 2 itself, which directs 'in this Act unless the context otherwise requires', the words defined shall be given the meanings assigned to them. The definition section, it cannot be disputed, is a part of the Act and as such pursuant to the direction or mandate the word 'forest' occurring in the composite expression 'private forest' in Section 2 (f) must be given the meaning assigned to that word in Section 2(c-1). Reference to 'context' and the submission based on the words 'unless the context otherwise requires' occurring at the commencement of Section 2 appears to us to toe irrelevant. The function of the words 'unless the context otherwise re-quires' occurring at the commencement of Section 2 is merely to direct that wherever context otherwise requires a different meaning and not the meaning assigned to the word by the definition should be given. These words do not have any bearing on the mandate which is to be found in Section 2. Definitions in Interpretation Clauses may have no context (though this may not be true of all definitions) but therefore, all the more reason, why the word 'forest' in the composite expression 'forest-produce' in Section 2 (f) should be given the meaning assigned to it in Section 2 (c-1). Moreover, as stated earlier, the scheme itself suggests that what vests in the State under Section 3 are private forests as defined by Section 2 (f) but such private forests must in the first instance be 'forests' as defined by Section 2 (c-1) and read in that manner the forest produce would vest in the State Government along with the private forest under Section 3 of the Act.

33. On the question whether the amending measure viz. Act 72 of 1975 has misfired, a little legislative history will be material. From the outset the intention of the Legislature has been very clear, namely to include forest produce lying in all private forests for the purpose of vesting the same in the State Government along with the private forests themselves. As stated earlier. Act 29 of 1975 initially did not define the expression 'forest' nor 'forest produce' but merely defined the expression 'private forest'. When during the hearing of Special Civil Application No. 1553 of 1974 it became clear that the contention of the petitioners that the forest produce in the form of cut timber or felled material would not be includible in the concept of forest and therefore would not pass to the State Government under Section 3 was likely to succeed before the Division Bench the Ordinance 13 of 1975 was promulgated which supplied the definition of 'forest' as also of the expression 'forest produce' and in the definition of 'private forest' Clause (vii) was added which spoke of 'all the forest produce therein' and on the strength of these amendments the State sought to include 'forest produce including the cut timber or felled material within the expression 'forest' but both the learned Judges of the Division Bench unanimously took the view that the definition of 'private forest' was subordinate to the main definition of 'forest' and as such the addition of Clause (vii) to the definition of 'private forest' could not improve the matter in the absence of the expression 'forest' itself including such forest produce in its definition. It was as a result of such unanimous expression of opinion on the part of the learned Judges of the Division Bench that the State Legislature while replacing the Ordinance by the Amending Act 72 of 1975 effected the necessary change by deleting Sub-clause (vii) from the definition of 'private forest' in Section 2 (f) and adding it as Sub-clause (v) to the definition of 'forest' in Section 2 (c-1). This legislative history is a clear pointer to the legislative intention of including 'forest produce' and vesting the same in the State Government along with all the private forests that vest in the State Government under Section 3 of the Act. The amending measure, therefore, when it was introduced in conformity with the unanimous judicial opinion expressed by the Division Bench of this Court cannot be said to have misfired. Moreover, as stated above, if the definition of 'forest' including Sub-clause (v) thereof is read into the definition of 'private forest' in Section 2 (f) it will be clear that forest produce was intended to and does actually vest in the State Government along with private forests that are vested in the State Government under Section 3 of the Act.

34. The next aspect that has been pressed into service is the absence of a provision for payment of compensation or amount for acquisition of forest produce, particularly felled timber, in the Act, which it is contended, clearly indicates a legislative intent that the forest produce of private forests should not vest in the State Government under Section 3 of the Act. In this behalf reference was made to Section 7 of the Act and the following sections which make a provision for payment of amount to the owners of private forests and the machinery for determination of that amount. It is pointed out that Section 7 contemplates payment of amount only for land and the basis of such payment is land revenue assessment actual or notional and the contention is that if felled trees and other forest produce had been intended to be acquired payment therefor would have been separately provided for and the absence of such provision indicates that forest produce, particularly felled timber, was not intended to pass to the State Government. We are unable to draw such an inference from the mere fact that there is absence of separate provision for payment of compensation or amount in respect of forest produce, in the first place, as we have held above, it is only such forest produce which satisfies the three conditions mentioned earlier that vests in the State Government along with private forest and it is conceivable that since the forest produce which the Legislature intends to vest in the State Government is the one which is lying in the private forest in its primary or predominantly primary state, the Legislature may not have thought fit to provide for payment of separate compensation or amount in respect of such produce, compensation or the amount for the land being considered sufficient. In any case, this circumstance of absence of separate provision for compensation in respect of such forest produce may render the provision invalid as being violative of Article 31(2) of the Constitution (which challenge is not open, the enactment having been put on the 9th Schedule) but it has certainly no relevance to the question of legislative, competence of the State Legislature. Both these submissions are, therefore, liable to be rejected.

35. The next contention of Mr. Seervai has been that in several petitions the owners of private forests have agreed to sell the trees under written contracts of sale authorising the contractors to cut and remove them and even property in the standing trees under such agreements for sale has passed to the contractors. According to him, at least in such cases where the property has become 'goods' and third party's rights have intervened, such trees are liable to be excluded from the definition of 'forest' and such produce must be held to have not vested in the State Government under Section 3 of the Act. It is not possible to accept this contention for two or three reasons. In the first place, the contention loses its force in view of the conclusion which we have reached above that even severed forest produce -- be it a physical severance or legal severance -- so long as it is lying in the forest in its primary or predominantly primary condition would form part of the forest and would vest in the State Government under Section 3 of the Act. Secondly, it is irrelevant for the purpose of Section 3 as to in whom the title in the forest produce vests. Apart from these aspects of the matter the only foundation for the aforesaid contention of Mr. Seervai lies in the wide definition of the expression 'goods' given in Section 2(7) of the Sale of Goods Act where that expression has been defined to include standing trees (being things attached to or forming part of the land) 'which are agreed to be severed before sale or under the contract of sale'. But in our view, this special definition intended for Sale of Goods Act will have no relevance for the purposes of the impugned Act.

36. On the question of Legislative competence Mr. Singhvi has faintly argued that even if our view happens to be different from Vimadalal and Deshmukh JJ. their decision will operate as res judicata as far as Special Civil Application No. 1553 of 1974 is concerned and we will have no option but to hold that 'forest' does not and cannot include forest produce that has become move-able property like felled material etc. According to him, the Supreme Court has not set aside the findings recorded by them by reference to Ordinance 13 of 1975 and Act 72 of 1975 has not made any material difference to the legal position. We fail to see any merit in this contention. The final order passed by this Court on 8th March 1976 in accordance with the majority view of the two learned Judges has been set aside by the Supreme Court and this Court is in terms directed to decide the case afresh in the light of rival contentions of the parties in regard to the effect of Amending Act 72 of 1975. In other words, the validity of Act 29 of 1975 as amended by Act 72 of 1975 is expressly remitted to us for our determination. Impliedly therefore the finding of the Division Bench rendered in the context of Ordinance 13 of 1975 is open for reconsideration. But apart from this aspect of the matter, a larger Bench of five Judges cannot be said to be bound by the view of two Judges of this Court. The contention is thus untenable.

37. Having regard to the aforesaid discussion, we are clearly of the view that challenge to the legislative competence of the State Legislature in regard to two artificial definitions of 'forest' and 'private forest' fails and must be rejected. Furthermore, since on construction we have taken the view that all that the Legislature has intended to include within the concept of 'forest produce' which it has sought to vest in the State Government is the 'forest produce which satisfies three conditions mentioned above, the Acquisition Act and Section 3 there-: of fall within the legislative competence of the State Legislature under Entry 19 of List II read with Entry 42 of List III of the Seventh Schedule to the Constitution.

38. In view of our aforesaid conclusion that the provisions of Section 3 of the impugned Act read with the two definitions 'forest' and 'private forest' -- given in Section 2(c-1) and Section 2(f) directly fall within the legislative Entry 19 of List II read with Entry 42 of List III, there is no necessity for us to discuss and/or to invoke the doctrine of ancillary and incidental powers on the basis of which Mr. Gursahani wanted to support the validity of Section 3 and the impugned Act, Similarly, there will be no question of the impugned enactment being regarded as a colourable piece of legislation as, in our view, in enacting the measure the State Legislature has not transgressed its limits. Further since we have come to the conclusion that the impugned Act and Section 3 thereof properly fall within the legislative competence of the State Legislature under Entry 19 of List II read with Entry 42 of List III, it is unnecessary for us to consider whether the said enactment and the provisions of Section 3 fall or can be justified under alternative legislative heads suggested by Mr. Gursahani viz. under Entry 42 of List III simpliciter or under Entry 18 of List II read with Entry 42 of List III or under Entry 20 of List III of the Seventh Schedule to the Constitution. Further we may also observe that in view of our aforesaid conclusion, there will be no question of the impugned Act or Section 3 thereof trenching upon the residuary Entry 97 of List I of the Seventh Schedule.

39. The second ground of challenge to the constitutional validity of the Acquisition Act is that the said enactment and particularly Sections 3 and 5 thereof contravene or violate the freedom of trade, commerce and intercourse throughout the territory of India guaranteed under Article 301 of the Constitution. Mr. Seervai and other counsel for the petitioners have pointed out that the owners of private forests grow forest produce, particularly trees and the contractors purchase such forest produce for the ultimate purpose of selling the same in the market and according to them, right from the time the owners of forests proceed to enter into contracts of sale and further proceed to make applications for cutting trees in pursuance of and towards fulfilment of such contracts, the process of trade and commerce conceived in Article 301 of the Constitution must be said to have commenced and acquisition by the State Government under Section 3 of the Act of such forest produce which, sO to speak, constitutes the stock-in-trade interferes directly with the freedom of trade and commerce assured to the owners and contractors under Article 301. It has been pointed out that in Special Civil Application No. 1553 of 1974 teak and injaili trees had been cut and fashioned into logs of wood and these had been stocked in godown long prior to 'appointed day' and that under the registered contract of sale dated 7-2-1974 such felled timber and firewood had to be transported from village Ambatha in Surgana Taluka in Maharashtra State, to Gujarat State and similarly in the other petitions standing trees were the subject-matter of contracts for sale which had been agreed to be severed and transported from the concerned forest to outside places for their ultimate sale in markets, but by reason of the provisions of Section 3 read with the provisions of Section 5 of the Acquisition Act, the petitioners have been deprived of their right to take away the said material out of the concerned forest and as such the enactment which thus provides for compulsory acquisition of stock-in-trade directly interferes with the inter-State trade as also intra-State trade in timber and fire-wood in contravention of Article 301 of the Constitution and is not protected by Clause (b) of Article 304 of the Constitution, inasmuch as, restrictions imposed on freedom of trade and commerce within and without the State of Maharashtra are highly unreasonable and not in public interest and also for the reason that neither the original enactment nor the amendments made therein were introduced or moved in the Maharashtra State Legislature with the previous sanction of the President of India. In support of this contention counsel for the petitioners have placed reliance principally upon three decisions of the Supreme Court (viz. the Atiabari case , the Automobile case and the Krishnan case ) which lay down the law on the topic of freedom of inter-State and intra-State trade, commerce and intercourse under Part XIII and the tests to be applied for determining the violation of freedom guaranteed by Article 301 of the Constitution as also on several decisions of Australian High Court and Privy Council on similar provisions contained in Section 92 of the Australian Constitution.

40. On the other hand, counsel for the State of Maharashtra and other respondents have contended that impugned Act is a law of acquisition simpliciter having been enacted in exercise of power of 'eminent domain' and as such would be outside Part XIII which includes the relevant Articles 301 to 307 on the topic of freedom of trade, commerce and intercourse within the territory of India. It is further contended that the impugned Act is not a part of any scheme to control, restrict or adversely affect trade and commerce, that it applies to all traders as well as non-traders alike--, that the object and purpose of the enactment is acquisition of all private forests in the State and that therefore the total divesting of all such private forests including all their produce lying therein free from encumbrances being a normal incident of such acquisition, the enactment, if at all, indirectly and remotely affects or interferes with the forests produce belonging to the owners of private forests or their contractors. Since the Act or the provisions thereof do not directly and immediately affect or interfere with the trade or commerce, the same are not violative of Article 301. It is pointed out that the 'direct and immediate effect' test laid down in the Supreme Court decisions holds the field for the purpose of determining as to whether the impugned legislation offends Article 301 of the Constitution. In support of these pleas counsel relied upon some of the Australian decisions and the decisions of the Privy Council rendered in the context of Section 92 of the Australian Constitution. It is also contended that in substance the petitioners are making the grievance of violation of their fundamental right under Article 19(1)(g) and since the grievance of violation of that fundamental right is not available, the petitioners are indirectly making such grievance by alleging violation of Article 301 of the Constitution, in the alternative counsel for the respondents have raised a contention at the hearing, though no such specific plea has been raised in the affidavits in reply, that if Article 301 is attracted, then, the restrictions contained in the impugned Act are in public interest and the same are reasonable and as such the enactment is saved under Article 304(b). The submission that the impugned Act as well as the amendments made therein were not moved in the State Legislature with the previous sanction of the President of India has been denied.

41. Since the contention on behalf of the petitioners is based on violation of Article 301, it will be desirable' to set out the provisions of that article which occurs in Part XIII of the Constitution as well as the scheme of that Part in brief. Part XIII which comprises Articles 301 to 307 deals with the topic of 'Trade, Commerce and Intercourse within the territory of India'. Article 301 guarantees freedom of trade, commerce and intercourse throughout the territory of India while the remaining articles principally deal with restrictions which could be imposed either by Parliamentary law or by State law on" such freedom. Article 301 which has for the marginal note: 'Freedom of trade, commerce and intercourse' runs thus:

"Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free."

It is clear that the above article assures freedom of inter-State as well as intra-State trade and commerce, inasmuch as, the Articles states that trade, commerce and intercourse shall be free 'throughout the territory of India'. This conclusion is further supported by the language employed in Articles 302 and 304(b) where the restrictions contemplated are on freedom of trade, commerce and intercourse 'between one State and another' or 'within a State'. Under Article 302 power has been conferred upon the Parliament to impose by law restrictions on freedom of trade, commerce and intercourse between one State and another or within any part of territory of India and the only qualification is that such restrictions must be in public interest. Article 303(1) imposes restrictions on the legislative powers of Parliament and under this Article it is provided that notwithstanding anything in Article 302 Parliament shall not have the power to make any law giving any preference to any one State over another or discriminating between one State and another by virtue of any Entry relating to trade and commerce in Lists I and III of the Seventh Schedule. Article 303(1), which thus places a ban on the Parliament against the giving of preferences to one State over another or of discriminating between them, is again made subject to an exception which is carved out in Sub-Article (2) which provides that nothing in Sub-Article (1) shall prevent Parliament from making any law giving preference to one State over another or discriminating between one State and another, if it is necessary, to do so for the purpose of dealing with a situation arising from the scarcity of goods in any part of the territory of India. Article 304 confers power on the State Legislature to impose by law restrictions on trade, commerce and intercourse amongst States. It comprises of two clauses and each clause operates as a proviso to Articles 301 and 303. Clause (a) of that Article provides that the State Legislature may by law 'impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or purchased in that State are subject, so however, as not to discriminate between goods so imported and goods so manufactured or produced'. This clause therefore permits the levy on goods imported from sister States or the Union territories any tax which similar goods manufactured or produced in that State are subjected to under its taxing laws; in other words, in the matter of levy of tax on goods imported no discrimination is to be made. Clause (b) of Article 304 provides that notwithstanding anything contained in Article 301 or Article 303 the State Legislature may by law impose such reasonable restrictions on the freedom of trade, commerce and intercourse with or within that State as may be required in the public interest and the proviso to Clause (b) says that no Bill or amendment for the purpose of Clause (b) shall be introduced or moved in the Legislature without the previous sanction of the President. This provision appears to be the State analogue to the Parliament's authority denned by Article 302. However, three qualifications are required to be complied with before a State Legislature can by law impose restrictions on freedom of inter-State or intra-State trade, commerce or intercourse, namely (a) restrictions must be reasonable, (b) they must be in public interest and (c) requisite Bill or any amendment thereof can be introduced or moved in the State Legislature with the previous sanction of the President. In contrast, it will be noticed that Parliament's power to impose restrictions under Article 302 upon freedom of trade and commerce is subject to only one qualification, namely the restrictions must be in public interest and is not subject to requirement of reasonableness as is the case with the State's power. Article 305 saves existing laws and laws provided for State monopolies. Article 306 has been repealed. Under Article 307 power has been conferred on the Parliament to appoint by law such authority as it considers appropriate for carrying out the purposes of Articles 301 to 304.

42. It may be stated that Article 19(1)(g) guarantees to a citizen fundamental right to practice any profession or to carry on any occupation, trade or business but this right is subject to reasonable restrictions as specified in Article 19(6). The two Articles 19(1)(g) and 301 apparently deal with different aspects of trade and commerce though to some extent overlapping is inevitable. The contrast between the two articles has been clearly indicated by S.K. Das J. in the Automobile case thus:

"The first contrast 'between Article 19 end Article 301 is that Article 19 guarantees the right to freedom to a citizen whereas freedom granted by Article 301 is not confined to citizens. Another distinction which has been drawn is that Article 19 looks at the right from the point of view of an individual, whereas Article 301 looks at the matter from the point of view of freedom of the general volume of trade commerce and intercourse. We do not think that this distinction, if any such distinction at all exists, is material in the present cases, because an individual trader may complain of a violation of his freedom guaranteed under Article 19(1)(g) and he may also complain if the freedom assured by Article 301 has been violated. In a particular set of circumstances the two freedoms need not be the same or need not coalesce."

That an individual trader adversely affected by any enactment or executive order can challenge the validity thereof by reference to Article 301, though that article looks at the matter from the view point of freedom of general volume of trade, commerce and intercourse, has been reiterated by the Supreme Court in the case of District Collector of Hyderabad v. Ibrahim and Co. where the court has referred to Article 301 in these words (see H. N. Pt. C): "The guarantee under Article 301 which imposes a restriction upon legislative power of the Parliament or the State Legislature and the declaration of freedom is not merely an abstract declaration. There is no reason to think that while placing a restriction upon legislative power the Constitution guaranteed freedom in the abstract and not of the individuals."

In fact, in this case the State had not enacted any legislation impairing the fundamental right of the firm (Ibrahim & Co.) under Article 19(1)(g) but had proceeded to make an executive order which Ibrahim & Co. had challenged by a petition on the ground that their freedom under Article 301 had been violated and the Supreme Court not merely held that the petition was maintainable but quashed the impugned executive order as being violative of Article 301. The two freedoms, one under Article 19(1)(g) and the other under Article 301 are thus separately available to an individual trader and therefore prima facie there is no substance in the respondent's contention that because the right under Article 19(1)(g) is not available to them the petitioners herein cannot seek redress by alleging violation of Article 301 but it is unnecessary for us to decide this contention in view of our ultimate decision on merits of the contention based on Article 301.

43. At this stage the difference between our Article 301 and Section 92 of the Australian Constitution may also be pointed out. In the Atiabari case Shah J. has no doubt observed that the basic principle underlying Art, 301 appears to have been adopted from Section 92 of the Australian Constitution and in fact in the case of Ibrahim & Co. he has observed that "Article 301 of the Constitution is borrowed almost verbatim from Section 92 of the Commonwealth of Australian Constitution Act 63 and 64 Vict. c. 12 of 1900." However, since decisions of the Australian High Court and of the Privy Council under Section 92 have been referred to and relied upon by counsel on either side it will be desirable to note the differences between these two similar provisions. In the first place, the setting of Section 92 of the Australian Constitution is different from our Constitution under which individual right as to freedom of trade is also guaranteed separately under Article 19, apart from the general freedom of trade, commerce and intercourse in Article 301. Secondly, whereas by Section 92 of the Australian Constitution freedom of trade, commerce and intercourse is guaranteed among the States i.e. at inter-State level, our Constitution has made trade, commerce and intercourse free throughout the territory of India; in other words, freedom guaranteed by our Constitution under Article 301 is more pervasive in the sense that it is available at both levels, inter-State as well as intra-State. Thirdly, restrictions that could be imposed on this freedom are expressly codified in Article 19(6) and Articles 302 to 307 unlike the Australian Constitution under which the Courts have been left to work them out. We feel that these differences may have to be borne in mind while considering the applicability of the ratios of several decisions of the Australian High Court and of the Privy Council rendered under Section 92 of the Australian Constitution to the problem that has arisen before us. In this context our attention was invited by Mr. Dhanuka to a few decisions of the Federal Court and Supreme Court where a note of warning has been struck against indiscriminate reliance being placed on Australian and American decisions while interpreting our Constitution : vide in the matter of the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act ; M P V Sundararamier & Co. case : ; the Atiabari case: and the Automobile case: . Therefore, our endeavour shall be to see if the Australian cases cited on either side can be of any assistance in the solution of problem arising in the instant case bearing in mind the aforesaid differences as well as the said warning.

44. We shall now deal with the three Supreme Court cases which give authoritative exposition of law on the freedom of inter-State and intra-State trade, commerce and intercourse assured by Article 301 read with the other articles contained in Part XIII of the Constitution.

The three cases are: (Atiabari Tea & Co. Ltd. v. State of Assam, , Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, and G.K. Krishnan v. State of Tamil Nadu, . In the Atiabari case the constitutional validity of the Assam Taxation (on Goods carried by Roads on Inland Waterways) Act, (13 of 1954) aimed at collection of revenue, was challenged by the dealers and producers of tea. Tea produced in some parts of West Bengal and Assam was required to pass through Assam by road and inland waterways on its way to Calcutta for sale and the same was sought to be taxed under this Act. The enactment was alleged to be violative of freedom of trade and commerce assured under Article 301 and was claimed to be void for want of (a) assent of the President as required under Article 304 (b) and (b) compliance with other provisions of the said article. The learned Judges presiding over constitutional Bench differed on the question whether the provisions of the impugned Act attracted Article 301 at all. Two extreme views were expressed, one by Chief Justice Sinha, who constituted minority and the other by Justice Shah who for his own reasons, along with the remaining three Judges, agreed in striking down the impugned enactment Chief Justice Sinha took the extremely narrow view that taxation simpliciter was not within the terms of Article 301 and the tax on movement of goods or passengers did not necessarily connote impediment or restraint in the matter of trade and commerce; he drew a distinction between tax as such for the purpose of revenue on the one hand and discriminatory or penal tax on the other and according to him, the latter could be treated as impediment to free trade and commerce. On the other hand, Justice Shah took extremely wide view that every tax and several other impediments, such as, prohibitions, tariffs, licencing, marketing regulations, price control, nationalisation, economic or social planning, discriminatory tariffs, compulsory appropriation of goods, freezing or stand-still orders and similar other impediments operating directly and immediately on the freedom of trade, commerce and intercourse would offend the freedom guaranteed by Article 301 and all enactments containing such impediments can be valid only if they comply with the conditions specified in the other articles of Part XIII. According to him, what was guaranteed under Article 301 was "freedom in its widest amplitude -- freedom from prohibition, control, burden or impediment in commercial intercourse". The remaining three Judges Gajendragadkar, Wanchoo and Das Gupta JJ. (who along with Shah J. constituted majority), however, took the view that taxing enactments could come within the purview of Article 301 but it was only such taxes as directly and immediately restricted the trade i.e. free flow or movement of trade and commerce that would offend the freedom assured under Article 301. Gajendragadkar J. who delivered the leading majority judgment of three Judges held as follows (at p. 254 of AIR 1961 SC):

"Thus considered we think it would be reasonable and proper to hold that restrictions, freedom from which is guaranteed by Article 301, would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade. Taxes may and do amount to restrictions; but it is only such taxes as directly and immediately restrict trade that would fall within the purview of Article 301. The argument that all taxes should be governed by Article 301 whether or not their impact on trade is immediate or mediate, direct or remote, adopts, in our opinion, an extreme approach which cannot be upheld. If the said argument is accepted it would mean, for instance, that even a legislative enactment prescribing the minimum wages to industrial employees may fall under Part XIII because in an economic sense an additional wage bill may indirectly affect trade or commerce. We are, therefore, satisfied that in determining the limits of the width and amplitude of the freedom guaranteed by Article 301 a rational and workable test to apply would be: Does the impugned restriction operate directly or immediately on trade or its movement? It is in the light of this test that we propose to examine the validity of the Act under scrutiny in the present proceedings."

Since in this case the majority of the three learned Judges took the view that the purpose and object of the impugned Act which was passed by the Assam State Legislature under Entry 56 of List II was to collect taxes on goods solely on the ground that they were carried by road and inland waterways out of the area of the State and had put direct restrictions on the freedom of trade and since in doing so it had not complied with the provisions of Art 304(b) nor had it been validated by the assent of the President tinder Article 255(c), the impugned Act was void and Shah J. concurred in this conclusion. It will thus appear clear that the ratio of the aforesaid case is that the restrictions, freedom from which is guaranteed under Article 301, would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade and that if the impact or effect of the impugned restrictions on trade and commerce is direct and not remote and immediate and not mediate, such restrictions would offend the freedom guaranteed by Article 301.

45. In the Automobile case the constitutional validity of Rajasthan Motor Vehicles Taxation Act, 1951 and the provisions of Sections 4, 8 and 11 thereof was challenged on the ground that the taxes imposed by those provisions hindered the freedom of trade, commerce and intercourse assured by Article 301. Passengers and transporters of goods to and from Rajasthan were required to bear the incidence of tax, though the vehicles happened to be the apparent targets thereof. It was a case of consolidated tax on vehicles as against the tax on carriage of goods in the Atiabari case . The enactment was challenged as being violative of Article 301 and was claimed to be void on the ground that the President's sanction as required by the proviso to Article 304(b) had not been obtained. Since it was felt that the majority view propounded by Gajendragadkar J. in Atiabari case did not strike a proper balance between the freedom of trade guaranteed under Article 301 and the autonomy of the State Legislature enshrined in Article 246(3) of the Constitution and had serious impact on the question of autonomy of the State and in particular its financial independence, the matter was referred to a larger bench of seven Judges. S.K. Das J. spoke for the majority, Kapoor and Sarkar JJ. concurring with him while Subba Rao J. delivered a separate but concurring judgment, the minority dissenting judgment was delivered by Hidayatullah J., Iyenger and Mudholkar JJ. agreeing with him. It may be stated that the majority disapproved and rejected the extreme narrow view of Chief Justice Sinha in Atiabari case as also the extreme wide view of Shah J. in that case and held that the majority view expressed by Gajendragadkar J. for himself and two learned Judges was correct but required a clarificatory rider to the effect that regulatory measures or measures imposing compensatory taxes for the use of trade facilities do not come within the purview of restrictions contemplated by Article 301 and such measures need not comply with the proviso to Article 304(b) (requiring the sanction of the President). This conclusion appears in para 17 of the judgment, which runs thus:

"We have, therefore, come to the conclusion that neither the widest interpretation nor the narrow interpretations canvassed before us are acceptable. The interpretation which was accepted by the majority in the Atiabari Tea Co. case is correct, but subject to this clarification. Regulatory measures or measures imposing compensatory taxes for the use of trading facilities do not come within the purview of the restrictions contemplated by Article 301 and such measures need not comply with the requirements of the proviso to Article 304(b) of the Constitution." In other words, the ratio of the Supreme Court decision in Atiabari's case to the effect that restrictions, freedom from which is guaranteed by Article 301 would be such restrictions as directly and immediately restricted or impeded the free flow or movement of trade and that taxes may or do amount to restrictions was accepted in the Automobile case but the further view that all such taxes as directly and immediately restricted trade would fall within the purview of Article 301 and would therefore require compliance with the proviso to Article 304(b) was modified or clarified to the effect that regulatory measures or measures imposing compensatory taxes which far from restricting or impeding the freedom of trade and commerce facilitate and help trade and commerce would fall outside the purview of restrictions contemplated by Article 301 and such measures need not comply with the requirement of the proviso to Article 304(b). After reaching the aforesaid conclusion and accepting the ratio of the Atiabari case subject to clarification indicated, the Court examined the question whether the relevant provisions of the impugned Act (Sections 4, 8 and 11 read with Schedule) fell within the category of compensatory taxes or not and ultimately came to the conclusion that the taxes imposed under the impugned provisions of the Act were compensatory taxes which did not hinder the freedom of trade, commerce and intercourse, being taxes for the use of trading facilities and hence the Act was not violative of that article and the measure did not require the compliance of the proviso to Article 304(b) of the Constitution.

46. Before reaching the aforesaid conclusion, however, Mr. Justice S.K. Das in para 10 of his judgment posed a question of vital importance viz. "From what burdens or restrictions is the freedom assured under Article 301?" and answered it by quoting two general propositions set out by Lord Porter, as having been well settled by decided cases on Section 92 of the Australian Constitution, in Commonwealth of Australia v. Bank of New South Wales, 1950 A. C. 235 in the context of Section 92 of the Australian Constitution, namely "(i) that regulation of trade, commerce and intercourse among the States is compatible with its absolute freedom, and (ii) that Section 92 of the Australian Constitution is violated only when a legislative or executive act operates to restrict such trade, commerce and intercourse directly and immediately as distinct from creating some indirect or inconsequential impediment which may fairly be regarded as remote." He agreed with the second proposition which refers to the "direct and immediate effect" test which had also been enunciated in the Atiabari Case . The learned Judge proceeded to dilate on the first proposition of Lord Porter, both as regards its content and the effect of its disregard on autonomy of the State Legislature. Having regard to unqualified language employed in Article 301 the learned Judge observed that the Court, bearing in mind the fact that the provision has to be applied in the working of an orderly society, has necessarily to add certain qualifications subject to which alone that freedom may be exercised. After referring to several examples which brought out the distinction between what was merely permitted regulation and what was true interference with the freedom of trade and commerce, the learned Judge has observed thus

"In our view the concept of freedom of trade, commerce and intercourse postulated by Article 301 must be understood in the context of an orderly society and as part of a Constitution which envisages a distribution of powers between the States and the Union, and if so understood, the concept must recognise the need and the legitimacy of some degree of regulatory control whether by the Union or the States: this is irrespective of the restrictions imposed by the other Articles in Part XIII of the Constitution. We are, therefore, unable to accept the widest view as the correct interpretation of the relevant Articles in Part XIII at the Constitution."

On the aspect of State's financial autonomy the learned Judge has observed thus:

"An examination of the entries in the lists of the Seventh Schedule to the Constitution would show that there are a large number of entries in the State list (list II) and the Concurrent list (list III) under which a State Legislature has power to make laws. Under some of these entries the State Legislature may impose different kinds of taxes and duties, such as property tax, profession tax, sales tax, excise duty etc., and legislation in respect of any one of these items may have an indirect effect on trade and commerce. Even laws other than taxation laws, made under different entries in the lists referred to above, may indirectly or remotely affect trade and commerce. If it be held that every law made by the Legislature of a State which has repercussion on tariffs, licensing marketing regulations, price-control etc. must have the previous sanction of the President, then the Constitution in so far as it gives plenary power to the States and State Legislatures in the fields allocated to them would be meaningless."

Subba Rao J. has also expressed the last mentioned thought by stating: "We would be making the Legislature of a State elected on adult franchise the handmaid of the Central executive." The above discussion will show that two things seem to have weighed with the learned Judges in excluding regulatory measures and measures imposing compensatory taxes from the purview of Article 301:

(a) these measures far from hindering or restricting trade, commerce and intercourse facilitate or further the cause of freedom of trade and commerce and (b) the necessity to avoid curtailment of the autonomy, particularly financial autonomy of the State Legislatures enshrined by Article 246(3) of the Constitution.

47. In the Krishnan case the Supreme Court has accepted the position that the statement of law on the freedom of inter-State and intra-State trade, commerce and intercourse as enunciated in the Automobile case is the correct one. In fact, Mathew J. in that case has pointed out that the 'direct and immediate restriction' test enunciated in the Atiabari ease had great adverse effect upon the financial autonomy of States, for instance, a law passed by State Legislature under Entry 56 of List II (taxes on goods and passengers carried toy road or inland waterways) would be a restriction which was immediate and direct on the movement part of trade and commerce and would be bad which meant that Entry 56 of List II was rendered otiose and that in view of grave impact of this judgment in the Atiabari case a larger bench was constituted for deciding the Automobile case and the decision in the Automobile case has practically overruled the decision in the Atiabari case in so far as it held that if the State Legislature wanted to impose tax to raise monies necessary in order to maintain roads, that could only be done after obtaining the sanction of the President as provided in Article 304(b). Mathew J. has further observed in "Khyerbari Tea Co. case it was said that the decision in Atiabari case was affirmed in Automobile case with a clarification that regulatory measures or measures imposing compensatory tax do not come within the purview of restrictions contemplated in Article 301 and that such measures need not comply with the requirement of the provisions of Article 304(b)". Mathew J. has concluded thus:

"In whatever way one may choose to put it, the effect of the majority decision in the Automobile case is that a compensatory tax is not a restriction upon the movement part of trade and commerce,"

However, it may be stated that in Krishnan case the validity of the imposition of an enhanced tax on contract carriages under a Government order issued under Section 4 of Madras Motor Vehicles Taxation Act was challenged as being violative of Article 301 of the Constitution and Mathew J. speaking for the Court has approved the decision in Automobile case as laying down the correct law on the subject. The Court has pointed out that the word 'free" in Article 301 does not mean freedom from regulation and that there is a clear distinction between laws interfering with freedom to carry out activities constituting 'trade' and laws imposing on those engaged therein rules of proper conduct or other restraints directed to the due and orderly manner of carrying out the activities. The court has further held that regulations like rules of traffic facilitate freedom of trade and commerce, whereas restrictions impeded that freedom and similarly the collection of toll or tax for the use of roads, bridges or aerodromes etc. do not operate as barriers or hindrance to trade. For a tax to become a prohibited tax it has to be a direct tax the effect of which is to hinder the movement part of trade. If the tax is compensatory or regulatory it cannot operate as a restriction on the freedom of trade and commerce.

48. It may be stated that the aforesaid three decisions and many other decisions of the Supreme Court where, the question of validity of restrictions on freedom assured under Article 301 came up for consideration, the enactments concerned were fiscal enactments imposing taxes or fiscal burdens, but it cannot be disputed that restrictions or hindrances which impede trade and commerce may take diverse forms and even to such restrictions or hindrances the same test will have to be applied in order to determine whether these offend the freedom assured under Article 301 of the Constitution. From the above discussion of the three cases two propositions could be said to get crystallised: (a) Restrictions, freedom from which is guaranteed by Article 301, must be such restrictions as directly or immediately restrict or impede trade and commerce; in other words, in determining the limits of width and amplitude of freedom guaranteed by Article 301, the test to apply would be: Does the impugned restriction operate directly or immediately on trade and commerce? (b) Laws regulatory of trade, commerce and intercourse or laws imposing compensatory taxes are beyond the purview of the restrictions contemplated by Article 301.

49. Relying on the aforesaid crystallised position Mr. Seervai for the petitioners has contended that encroachment on freedom of trade and commerce assured under Article 301 can take various forms and compulsory acquisition of goods or stock-in-trade of a trader is one such form of encroachment and since in the instant case all the forest produce, which, so to speak constitutes the stock-in-trade of the owners of private forests or their contractors, stands compulsorily acquired under Section 3 of the Acquisition Act, the said section has the effect of directly interfering with the freedom of trade and commerce assured to such owners of private forests and their contractors under Article 301, inasmuch as, the petitioners have been deprived of their right to take away the said produce out of the concerned forest for being ultimately sold in the market or to deal with it in any manner. According to him, the question whether a particular law violates Article 301 has to be answered not by asking what that law is about but by considering the impact or effect of such law on the freedom proclaimed by Article 301 and if the impact or effect on such freedom is direct and immediate the law must be held to be violative of Article 301; in other words, the proper test to decide whether Section 3 of the impugned Act contravenes the freedom guaranteed to the petitioners under Article 301 is to ascertain the reaction of the said provision on the right conferred on them by Article 301 and while the scope and object of the impugned Act may be of assistance in determining the effect of the operation of the impugned Act on a proper construction of this provision, if the effect of the Act so determined involves an infringement of such right, the object of enactment, however laudable, will not save it from contravention of Article 301. He has pointed out that this test has been laid down by the Privy Council in the case of Punjab Province v. Daulat Singh and the same has been applied by S.R. Das J. in State of Bombay v. Bombay Education Society, . He has further pointed out that several enactments that were impugned in several Australian cases were struck down as being violative of Section 92 of the Australian Constitution on the basis of this very test. In this context he has urged that what the legislature intends to do or not to do must be gathered from that which it has chosen to enact, either in express words or by necessary implication, and it must be presumed that the Legislature intends that which is the necessary effect of its enactment: the object, the purpose and the intention of enactment being the same. He has, therefore, urged that the aspect that the impugned Act is a law of acquisition simpliciter is immaterial and since its effect is expropriation of stock-in-trade of the petitioners the enactment must be regarded as interfering directly with the freedom of trade and commerce of the petitioners and therefore Section 3 of the Act contravenes or violates the freedom guaranteed under Article 301. In support of this contention strong reliance was placed by him upon the following observations of Lord Porter in the Privy Council decision in Commonwealth of Australia v. Bank of New South Wales, 1950 AC 235, which appear at p. 307:

"It appears to their Lordships that this contention ignores the actual decisions and is based on a misapprehension of certain language used in the judgments of the Board. In James v. Cowan, (1932) A. C. 542, 555, Lord Atkin speaks of Section 20 and the determinations made under it as 'directed at inter-State commerce as such.' Elsewhere he speaks of the 'objects' of the Minister and the Board, and of the 'real object' of arming the Minister with a certain power. It is possible that this language is open to misconception. But, in whatever sense the word 'object' or 'intention' may be used in reference to a Minister exercising a statutory power, in relation to an Act of Parliament it can be ascertained in one way only, which can test be stated in the words of Lord Watson in Salomon v. Salomon & Co., (1897) A. C. 22,38,:

"In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication." The same idea is felicitously expressed in an opinion of the English law officers Sir Roundell Palmer and Sir Robert Collier cited by Isaacs J. in James v. Cowan, 43 CLR 386, 409,:

"It must be presumed that a legislative body intends that which is the necessary effect of its enactments: the object, the purpose and the intention of the enactment, is the same"."

50. In reply Mr. Dhanuka and other Counsel for the respondents have contended that though compulsory acquisition or expropriation of moveables -- goods or stock-in-trade-- may amount to interference with free trade, every compulsory acquisition would not constitute an encroachment on free trade, for in that event no law of acquisition of movables which can be or are subject-matter of trade and commerce would be valid and every such law would violate Article 301. According to Mr. Dhanuka, a distinction must be made between acquisition simpliciter and acquisition resorted to as a means or instrument of exercising control over trade and commerce and unless the law of acquisition is enacted as a means or instrument to restrict, impade, hinder or destroy trade and commerce such law would not offend the freedom of trade and commerce contemplated by Article 301 and since the impugned Act is a law of acquisition simpliciter and not a legislation which is part of any scheme to control, restrict or adversely affect trade and commerce, the Act and Section 3 thereof would not offend Article 301, the vesting of movables --forest produce -- being incidental to the vesting of the private forests in the State Government. In support of this contention he relied upon the decisions of the Australian High Court in what has come to be known as the Wheat case (20 CLR 54) and Privy Council decisions in James v. Cowan (1932 AC 542) and James v. Commonwealth (1936 AC 578). Secondly he has contended that in any event 'the direct and immediate effect' test laid down in the Supreme Court judgments which holds the field for the purpose of determining whether the impugned legislation offends Article 301 of the Constitution is not satisfied in this case inasmuch as the impugned Act does not directly or immediately restrict, impede or adversely affect trade or free flow or movement of trade, and if at all its effect is indirect or remote. We find considerable force in both the contentions of Mr. Dhanuka.

51. To appreciate the first contention of Mr. Dhanuka it will be necessary to discuss the Australian cases in some detail on which he has relied. The first case, known as the Wheat case State of New South Wales v. Commonwealth 20 CLR 54, dealt with an acquisition enactment simpliciter and the same was held not to violate Section 92 of the Australian Constitution. Section 3 of the Wheat Acquisition Act, 1914 (NSW) provided for compulsory acquisition of all wheat specified in the notification to toe published under that section and for such wheat becoming the absolute property of His Majesty and for converting the rights and interest of several persons in that wheat into claims for compensation. By Sections 8 and 9 all pending contracts for sale of wheat or flour were declared to be void and of no effect These provisions were challenged as being violative of Section 92 but the Australian High Court negatived the challenge and held that the Act was intra vires the Parliament of New South Wales. Griffith C. J. took the view that acquisition merely transferred ownership of wheat to the new owner (Crown) and the enactment closed only the pending intra-State contracts (Sections 8 and 9 were read down) and the new owner (the Crown) was free to do what it liked with that wheat, dispose of it inter-State or not as it chose; in other words, the power of the new owner to deal with it as it liked was not interfered with end therefore there was no question of Section 92 being violated, in fact Section 92 was not attracted. It must be pointed out, however, that the aforesaid view of Griffith C. J. stated in such broad form was not approved by the Privy Council in James v. Cowan, 1932 A. C. 542. where Lord Atkin has observed about this view thus: "Their Lordships would not be prepared to assent to it in the simple form which commended itself to Griffith C. J.," which, in other words, means that all compulsory acquisition which effected transfer of ownership of commodities would not be outside the purview of Section 92, that some acquisitions may fall within the purview of Section 92 and some may not . The next important Australian case is James v. Cowan (43 CLR 386) and the dissenting judgment of Isaacs J. when the case was done by the Australian High Court reported in 43 CLR 386. It may be pointed out that the Dried Fruits Act, 1924, a State Legislation of South Australia, by Section 19 created a Dried Fruit Board and empowered it to fix the maximum prices to be charged for sale of dried fruit and under Section 20 empowered the Board to determine where and in what quantities dried fruits produced in any particular year should be marketed. Section 28 provided that, subject to Section 92 of the Constitution the Minister might acquire or purchase or authorise the Board to" acquire on his behalf and for the purposes of the Act, any dried fruit in South Australia grown and dried therein. In an earlier action brought by James against South Australia (vide James v. South Australia, 40 CLR 1) Section 20 and the determination of the Board and seizure of stock thereunder were challenged on the ground that Section 20 was violative of Section 92 and the Australian High Court had unanimously held that the determination by the Board fixing the proportion of dried fruits which might be marketed within Commonwealth was authorised by Section 20, that the same had prejudiced James and therefore Section 20 was violative of Section 92. This view was later confirmed by the Privy Council. Thereafter when James's stock of dried fruits was again seized under orders of the Minister for Agriculture for South Australia issued under Section 28, James brought this action challenging the seizure contending that the orders of the Minister were invalid and claimed damages. The question was raised whether Section 28 as also the Minister's exercise of power thereunder were such as to restrict the absolute freedom of inter-State trade under Section 92. The majority held that Section 28 authorised compulsory acquisition of 'any dried fruits in South Australia grown and dried in Australia' and did not violate the provisions of Section 92 of the Constitution being an interference with the freedom of 'trade, commerce, and intercourse among the States' and the seizure of James's stock was duly and lawfully made and dismissed the claim. Isaacs J. delivered a dissenting judgment and came to the conclusion that plaintiff James ought to succeed. The Privy Council in appeal (1932 A. C. 542) reversed the majority judgment of the High Court and granted damages to plaintiff James and while doing so approved the dissenting view of Isaacs J. We may point out that in his dissenting judgment Isaacs J. approved the ratio of the Wheat case (20 CLR 54), but in a qualified manner, by making a clear distinction between acquisition simpliciter and acquisition as means or instrument of interfering, impeding or repressing free trade and commerce. He took the view that Section 28 did not authorise acts complained of by the plaintiff, but that on the assumption that it did, he held that Act was invalid. According to him. "the distinctive feature of the Act in that case (Wheat case) was that it authorized expropriation of the property as such simpliciter, and did not expressly or implicitly refer to inter-State trade or commerce, either as a criterion of authority or as a description or attribute of the property to be acquied ...... Here, by the assumption, we have a statute (Dried Fruits Act) which Is the very antithesis of the Wheat Acquisition Act. It (Dried Fruits Act) makes the repression of inter-State trade the causa causans of the expropriation, which is only the means selected to carry out effectively the attempted control of the inter-State trade." (vide page 415 of the report). Isaacs J. also held that the impugned orders of the Minister under Section 28 under which James's stock of dried fruits had been seized were also violative of Section 92, inasmuch as, the object and purpose of the exercise of power was to interfere with inter-State trade, it may be pointed out that in Appeal (1932 A. C. 542} this minority judgment of Isaacs J. was approved by Lord Atkin, though the learned Law Lord could not approve the wide form in which Griffith C. J. had expressed his view in the Wheat case, namely that once acquisition takes place no question of contravention of Section 92 can arise. At page 561 of the report Lord Atkin has expressly observed thus: "In the result their Lordships find themselves in accord with the convincing judgment delivered by Isaacs J. in the High Court." We may further point out that the following observations made by Lord Atkin while holding that the Minister's executive action under Section 28 was violative of Section 92 are material: "If the real object of arming the Minister with the power of acquisition is to enable him to place restrictions on inter-State commerce, as opposed to a real object of taking preventive measures against famine or disease and the like, the legislation is as invalid as if the legislature itself had imposed the commercial restrictions. The Constitution is not to be mocked by substituting executive for legislative interference with freedom. But, in the present case, the Courts are not faced with the problem of construing an Act of the legislature which contains no reference to Section 92. In this case the powers given to the Minister are expressly conditioned as subject to the section. Section 28 appears to mean that the Minister may acquire compulsorily so that he does not interfere with the absolute freedom of trade among the States and acquires for the purposes of the Act. Thus the only question in this case appears to be whether the Minister did exercise his powers so as to restrict the absolute freedom of inter-State trade. It may be conceded that, even with powers granted in this form, if the Minister exercised them for a primary object which was not directed to trade or commerce but to such matters as defence against the enemy, prevention of famine, disease and the like, he would not be open to attack because incidentally inter-State grade was affected. But, in the present case, it appears to their Lordships, as it did to Isaacs J., that the statement of the objects of the Minister and the Board, as expressed in the finding of Starke J. set out above, makes it plain that the direct object of the exercise of the powers was to interfere with inter-State trade."

The Privy Council decision and the aforesaid observations clearly bring out two things, in the first place, every acquisition or expropriation of stock-in-trade would not amount to interference with freedom of trade and commerce, and secondly, according to Lord Atkin the real object of the legislation as well as the real object of executive action taken under power conferred by the legislation are aspects that are relevant and material for the purpose of deciding whether the legislation or executive action thereunder would violate Section 92. We may point out further that these observations were later on approved by Lord Wright in the third case of James, being James, v. Commonwealth, 1936 A. C. 578. In that case while dealing with the aforesaid observations of Lord Atkin, Lord Wright at p. 623 observed thus:

"The importance of this 'decision for the present purpose is that the test there adopted was whether the object of the Act was to prevent "the sale of the balance of the output in Australia, (1932 A. C. 559);" the Act was directed "against selling to any of the States" in Lord Atkin's words; so regarded, the case is simply that of a restriction or prohibition of export from State to State which necessarily involves an interference with the absolute freedom of trade among the States. The Board found it unnecessary to undertake the difficult task of defining the precise boundaries of the absolute freedom granted to inter-State commerce by Section 92." Further at page 630 of the report Lord Wright has made the following observations which again are very material:

"But it has become clear from the various decisions already cited that such burdens and hindrances may take diverse forms, and indeed appear under various disguises. One form may be a compulsory acquisition of goods, as in James v. Cowan, (1932) A. C. 542, or the Peanut case, 48 CLR 266 if in truth the expropriation is directed wholly or partially against inter-State trade in the goods, that is, against selling them out of the State."

These observations of Lord Atkin and Lord Wright in the aforesaid cases clearly show that compulsory acquisition of goods can amount to restriction, burden or hindrance on trade and commerce but only if such acquisition or expropriation is undertaken with the object or purpose of impeding repressing or destroying trade or commerce or is directed wholly or partially against free trade and commerce. Having regard to the aforesaid decisions, we find considerable force in the contention of Mr. Dhanuka that acquisition simpliciter must be distinguished from acquisition which is undertaken as a means or instrument of interference with trade or as a part of the scheme to control, restrict, impede or adversely affect trade or commerce. Our attention was invited to the aspect that the scope of freedom of trade and commerce declared by Article 301 cannot be limited to interference only under such laws as the Parliament or the State Legislatures may enact by virtue of entries relating to trade and commerce, that is to say, entries referred to in Article 303 (being Entry 4l of List I--"Trade and Commerce with foreign countries, import and export, across customs 'frontiers, definition of customs frontiers,' Entry 42 of List I 'Inter-State Trade and Commerce', Entry 26 of List II 'Trade and Commerce within the State subject to provisions of Entry 33 of List III' and Entry 33 of List III) and Mr. Seervai has rightly pointed out that an argument by way of so limiting the freedom under Article 301 to interference from such laws only was expressly rejected by the Supreme Court in the Automobile case by all the Judges (vide S. K. Das J. at p. 1422, Subba Rao J. at p. 1430 and Hidayatullah J. at p. 1453-4 of the report) but this only means that laws made under other entries in the three lists can and may more effectively interfere with, or impede or restrict free trade and commerce and offend Article 301, but even under such laws made under the other entries, the effect or impact of the restrictions must be direct or immediate and not indirect or remote and this is what has been pointed out as the sequitur of the rejection of the argument by Subba Rao, J., in para 36 of the judgment (vide p. 1430). In other words, even under such laws the acquisition or expropriation must, in truth, be directed, wholly or partially, against free trade and commerce. Moreover, it is not possible to take the view that the effect of pronouncements of Lord Atkin in James v. Cowan and Lord Wright in Jemes v. Commonwealth of Australia has been wiped out by the observations of Lord Porter in Commonwealth of Australia v. Bank of New South Wales, 1950 AC 235 on which Mr. Seervai has relied. In our view, the observations appearing at p. 307 of the report (quoted earlier) on which Mr. Seervai has relied were made in the context of the contention that was urged by counsel on behalf of the appellants (Commonwealth of Australia) that the decision of the majority of the High Court in that case in relation to Section 92 was inconsistent with the two decisions of the Judicial Committee in James v. Cowan, 1932 AC 542 and James v. Commonwealth, 1936 AC 578 and it was pointed out by the Privy Council that the said contention ignored the actual decision in those two cases and was based on misapprehension of certain language used in the two judgments of the Board. The Privy Council then went on to point out that though the language used in those two judgments was open to misconception, what was intended to be conveyed was that in relation to an Act of Parliament the object or intention can be ascertained only in one way, namely by finding out that the Act has chosen to enact and the Privy Council ultimately made the position clear that it was because Section 20 of the Dried Fruits Act of South Australia operated according to natural meaning of its words to authorise a direct restriction on the manner in which James could dispose of his product by Inter-State transaction that it offended against Section 92 and not because some other extraneous purpose, object or intention was ascribable to the South Australian Legislature. Similarly the Privy Council pointed out that in James v. Commonwealth Lord Wright in delivering the opinion of the Board used somewhat similar language when he spoke of 'the real object' of an Act and its 'admitted object' etc. but when counsel for the appellants attempted to fasten on these expressions used by Lord Wright for contending that an Act cannot offend against Section 92 unless it can be shown that the intention of the Legislature was to interfere in some way with inter-State trade and counsel further went on to say that in the impugned Banking Act, 1947 no intention to interfere with inter-State trade was found and that the Act was not directed or aimed at such trade, the Privy Council reiterated the test in these words: "Does the Act not remotely or incidentally but directly restrict the inter-State business of Banking?" and proceeded to hold that beyond doubt it did since it (Section 46 of the Act) authorised in terms the total prohibition of private banking and that if that were so, the Privy Council pointed out that, in the only sense in which those words could be appropriately used in that case, it was an Act which was aimed or directed at, and the purpose, object and intention of which was to restrict inter-State trade, commerce and intercourse. It is true that the test laid down by the Privy Council in Daulat Singh's case to decide whether a particular enactment contravenes any right guaranteed to a party is to ascertain the reaction thereof on the right conferred and if the effect of the enactment involves an infringement of such right, the object of the enactment, however laudable, will not save it from the alleged contravention but in regard to encroachment or contravention of the freedom guaranteed under Article 301 a slightly more rigorous test has been laid down by our Supreme Court, namely the effect or impact of the restriction on free trade, must be direct or immediate and not indirect or mediate and in the context of such test the object or purpose for which the acquisition or expropriation is authorised by the enactment would be relevant and material.

52. Having regard to the above discussion, it is clear to us that since in the impugned Act there is nothing to indicate that compulsory acquisition or expropriation of forest produce authorised by Section 3 is directed, wholly or partially, against inter-State or intra-State trade or commerce or has been undertaken for the purpose of interfering, restricting or impeding trade or commerce, the said provision cannot be said to offend Article 301 of the Constitution 53. Even assuming that we are wrong in the aforesaid view, we have no hesitation in coining to the conclusion, quite independently of the aforesaid view, that 'the direct and immediate effect' test laid down by the Supreme Court is not satisfied in the instant case. In our view, the only direct and immediate effect of acquisition of forest produce authorised by Section 3 of the impugned Act is divesting of title; the impugned provision deprives the owners of private forests and their contractors primarily of their title to the forest produce and such title gets vested in the State with effect from the appointed day. The further consequence which ensues upon such divesting of title, namely that the owners and contractors are prevented from removing or taking out the said produce from the concerned forest for being used in the course of their trade is really a consequence upon a consequence and as such will have to be regarded as an indirect or remote effect on their right to carry on trade freely. The acquisition of the forest produce under the impugned provision hits the forest owners and contractors (having interest in the produce) in their capacity as owners or as persons having proprietary interest in the produce and not as traders and as such the effect of the acquisition on their trade is secondary and mediate and not direct or immediate. In our view, the position arising under the Acquisition Act would be comparable to a couple of instances which would be in pari materia. Suppose a person because of his prejudicial activities was detained under a law authorising preventive detention, the direct and immediate effect of such detention is that he is put behind the bars and no freedom of movement or action is permitted to him but if the detenu happens to be a trader he is also deprived of his right to carry on his normal trading activities and in a given case of a sole proprietary business the detention may even completely cripple his trade and trading activities hut it can hardly be suggested that the law of detention under which such a trader is detained is violative of Article 301 because it has the effect of interfering with the freedom of trade and commerce which a trader enjoys under that article; such effect of depriving him his right to carry on trade freely would be an indirect or remote effect and not direct or immediate effect Rowing from the action taken under the law of preventive detention. The other illustration is of a legislative enactment prescribing minimum wages to industrial employees cited by Justice Gajendragadkar in the Atiabari case . It is conceivable that the employer, as a result of additional wage bill that he may be required to meet in consequence of action taken under the Minimum Wages Act, may be so much adversely affected that he may even be driven out of business but the legislative enactment cannot fall within the mischief off Part XIII because as has been pointed out by the Supreme Court such effect has to be regarded as being indirect and remote for the purposes of Article 301 of the Constitution. In our view, therefore, the only direct and immediate effect of Section 3 which authorises compulsory acquisition of forest produce under the impugned Act is that the owners of private forests and the contractors are divested of their title to the forest produce which may be lying on the appointed day in the concerned forest and the title to that produce gets vested in the State Government. Its effect on their trade on commerce must be held to be indirect or remote. We are, therefore, of the view that even on the ground that 'the direct and immediate effect' test has not 'been satisfied in this case, Section 3 and Section 5 of the Act do not contravene or violate Article 301 of the Constitution. The aforesaid challenge to the constitutional validity therefore fails. In view of this conclusion of ours, it is not necessary for us to deal with the other defences which were set up by Mr. Dhanuka to this attack on the impugned Act qua Article 301 of the Constitution.

54. The last ground on which the validity of the impugned Act and Section 3 thereof has been challenged is that the said enactment, particularly Section 3 thereof since it purports to acquire not merely mines and minerals, major as well as minor, but also mining leases, licences and other rights in mines and minerals lying in the private forest, it conflicts with and trenches upon the 'occupied field' under the Central Act 67 of 1957 -- Mines and Minerals (Regulation and Development) Act, 1957 -- passed by Parliament under Entry 54 of List I and the same is therefore void. The contention, in our view, is without any substance and is capable of being disposed of on a very short ground, since a wrong assumption underlies this contention that the impugned Act is a legislation, under Entry 23 of List II.

55. In order to appreciate the contention, however, it will be necessary to refer to Entry 23 of List II and Entry 54 of List I under which the Central Act 67 of 1957 has been enacted. Entry 23 of List II runs thus: "Regulation of mines and mineral development subject to the provision of List I with respect to regulation and development under the control of the Union." Entry 54 of List I runs thus: "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest." On reading the aforesaid two Entries it will appear clear that the State Legislature can legislate on the topic of Regulation of mines and mineral development including quarries and products thereof under Entry 23 of List II but such power is made subject to the power of Parliament to so legislate under Entry 54 of List I and once Parliament makes a declaration as required under Entry 54, of List I, then, to the extent to which the area or field of legislation (pertaining to regulation of mines and mineral development) is occupied by the Central enactment, the State Legislature ceases to have any competence to legislate on matters covered by the occupied field and even if there be any State Legislation in existence, which trenches upon the occupied field under the Central enactment, the same would become void. As stated earlier, Parliament enacted the Mines and Minerals (Regulation and Development) Act, 1957 (Act 67/57) under Entry 54 of List I, which came into force on 1st June 1958 and was applicable to the whole of India. It contained the requisite declaration in Section 2 thereof to the effect that it was expedient in the public interest that the Union should take under its control the regulation of mines and development of minerals to the ex-tent provided in the Act itself. Sections 4 to 13 of the Act clearly cover the field by way of controlling the regulation of mines and development of minerals qua major minerals while Section 14 excludes the application of Sections 4 to 13 to minor minerals by expressly stating that the provisions of Sections 4 to 13 (inclusive) shall not apply to prospecting licences and mining leases in respect of minor minerals Section 15 confers power upon the State Government to make rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith. Even so the Supreme Court in the case of Baijnath Kedia v. State of Bihar, , took the view that the whole field relating to minor minerals came within the jurisdiction of Parliament by reason of declaration made and the enactment of Section 15. In para 20 the Court has observed that "By giving the power to the State Government to make rules the control of the Union is not negatived. In fact, it establishes that the Union is exercising the control. In View of the two rulings of this Court referred to earlier (Hingir-Rampur case, and Tulloch case ) we must hold that by enacting Section 15 of Act 67 of 1957 the Union has taken all the powers to itself and authorised the State Government to make rules for the regulation of leases. By the declaration and the enactment of Section 15 the whole of the field relating to minor minerals came within the jurisdiction of Parliament and no scope was left for the enactment of the second proviso to Section 10 in the Land Reforms Act." There were some very significant changes made in Act 67 of 1957 by the Mines and Minerals (Regulation and Development) Amending Act, 1972, particularly in Sections 16 and 17 which had repercussions on the declaration contained in Section 2 of the Act, which were considered by the Supreme Court in the case of State of Haryana v. Chanan Mal, . In Chanan Mal's case the Supreme Court has clearly expressed the view that in view of Sections 16 and 17 as they now stand the field of acquisition of mines and minerals cannot be regarded as having been occupied by or under Act 67 of 1957. In that case the provisions of the Haryana Minerals (Vesting of Rights) Act, 1973 the object and effect of which enactment was to acquire proprietary rights to mineral deposits in 'land', was challenged as trenching upon the occupied field under the Central Act 67 of 1957, The provisions of the Haryana Act did not mention leasehold or licence rights but merely sought to vest proprietary rights to mineral deposits in 'land' in the State Govt. and the question was whether that enactment trenched upon the occupied field under the Central Act 67/1957. The Supreme Court took the view that it could not be said that the provisions of the Central Act were really unworkable by mere change of ownership of land in which mineral deposits were found and the Court ha to judge the character of the Haryana Act by the substance and effect of its (provisions. The Court held that in view of Section 16(1)(b) of the Central Act 67 of 1957 as it stood after the amendment in 1972 Parliament itself contemplated State Legislation for vesting of lands containing mineral deposits in the State Government and that Parliament did not intend to trench upon the powers of the State Legislature under Entry 18 of List II read with Entry 42 of List III; and further Section 17 of the Central Act 67 of 1957 showed that there was no intention to interfere with vesting of lands in the States by the provisions of the Central Act.

56. In view of the aforesaid position emerging clearly from the Supreme Court decision in Chanan Mal's case the contention that Section 3 of the impugned Act trenches upon the occupied field under the Central Act 67 of 1957 has been pressed by Mr. Paranjpe and Mr. Rana in a limited way. The field of acquisition of mines and minerals not having been occupied under the Central Act 67 of 1957 and the same being still available to the State Legislature to legislate upon, the contention that Section 3 of the impugned Act, to the extent that it purports to acquire mines and minerals, major as well as minor, conflicts with or trenches upon the occupied field under the Central Act 67 of 1957 has not been pressed. However, Mr. Paranjpe and Mr. Rana have contended that Section 3 of the impugned Act, to the extent to which it affects or interferes with mining leases and prospecting licences (leasehold rights and rights of prospecting licensees) and other rights in mines and minerals lying in the private forest it conflicts with and trenches upon the occupied field under the Central Act 67 of 1957. In fact, according to Mr. Paranjpe and Mr. Rana, under Section 3 all such leasehold rights under mining leases and rights of prospecting licensees under prospecting licences stand extinguished on and from the appointed day. It has been urged that such rights of a lessee and a licensee in mines or quarries can he regulated only by the Central Act 67 of 1957 and not by any State enactment and to this extent Section 3 must be regarded as being in conflict with and as having trenched upon the occupied field under the Central Act 67 of 1957 and as such Section 3 to that extent must be held to be void. In our view, the contention has no merit as it proceeds on a wrong assumption that the impugned Act and Section 3 thereof which affects leasehold interest in mining leases or interest of prospecting licensees in prospecting licences in mines is a piece of legislation under Entry 23 of List II. On an analysis of the preamble and the provisions of the Acquisition Act we have already come to the conclusion that the same was put on the statute book mainly for the purpose of acquisition of all private forests in the State of Maharashtra. In other words, the pith and substance of the enactment is acquisition of private forests and properly falls under Entry 19 of List II read with Entry 42 of List III of the Seventh Schedule. The Act does not deal with mines or quarries as such or in any manner with mineral development. The minerals and quarry products are forest produce like any other produce in private forest and along with private forests that vest in the State Government under Section 3 of the Act mines and quarries, if any, lying in such forests together with their products would vest in the State Government. The Act deals with leasehold interest in mining leases or rights of licensees in prospecting licences including the extinguishment thereof clearly incidentally for properly vesting all the private forests in the State Government free from all encumbrances. That being the position the Acquisition Act and Section 3 thereof cannot become invalid due to such incidental encroachment on the occupied field. We have already come to the conclusion that the Act is perfectly valid as falling within the legislative competence of the State Legislature under Entry 19 of List II read with entry 42 of List III of the Seventh Schedule and such an enactment cannot he invalidated by reason o: such incidental encroachment on occupied field under the Central Act 67 of 1957. This position in law is clearly well settled. If necessary, reference may be made to two or three decisions in that behalf. In Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., AIR 1947 PC 60 the Judicial Committee of the Privy Council held that the Bengal Money-lenders Act, 1940 was not void either in whole or in part as being ultra vires the provincial legislature on the ground that it incidentally trenched upon matters reserved to the Federal Legislature; the Court held that as the pith and substance of the Act was mone lending it fell within Item 27 of List II of the Seventh Schedule to the Government of India Act, 1935 and was therefore within the competence of the State Legislature and that the Act was not rendered invalid because it incidentally trenched upon the matters reserved to the Federal Legislature viz. promissory notes and banking being Items 28 and 38 of List I of the Seventh Schedule of the Government of India Act, 1935. In the case of A.M.S.S.V.M & Co. v. State of Madras AIR 1954 Mad 291 the validity of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 in so far as it related to fisheries in the seas was challenged as being beyond the competence of the Madras Legislature as the topic of 'Fishing, or fisheries beyond territorial waters' was a Central subject but the challenge was negatived and the Court held that the impugned Act was in pith and substance a legislation in respect of land and land tenure and not a legislation of fishing and fisheries in the seas, that the provisions of the Act in respect of fisheries in the seas were incidental to the effective legislation on the subject which was within the competence of the Madras Legislature. It is true that the decision was to some extent based on the elaborate history pertaining to Zamindari estate which was abolished and became vested in the State Government under the impugned Act but the general principle that the incidental encroachment will not invalidate an enactment if in pith and substance it deals with the subject properly falling within the legislative competence of the State Legislature was approved and applied. In the case of the State of Bombay v. F.N. Balsara AIR 1951 SC 318, the same principle has been enunciated that the validity of Act is not affected if it incidentally trenches upon matters outside the authorised field; therefore, it is necessary to enquire in each case what is the pith and substance of the Act impugned and if the Act when so viewed, substantially falls within the powers expressly conferred upon the Legislature which enacted It, then, it will not be held to be invalid merely because it incidentally encroaches upon matters which have been assigned to another legislation. The same principle was reiterated by the Supreme Court in Katra Education Society v. State of Uttar Pradesh, .

57. Mr. Paranjpe, however, relied upon the observations of the Supreme Court in para 19 of its judgment in Baijnath Kedia's case for the purpose of contending that the doctrine of pith and substance and incidental encroachment has no application to the facts of the present case. In our view, these observations do not avail Mr. Paranjpe. In that case the mines stood vested in the State under the Bihar Land Reforms Act (Act 30 of 1950) and the State had become lessors of mines underlying the land but the leasehold rights of the lessees were sought to be touched under the Act. Act 30 of 1950 which was amended by the Amending Act 4 of 1965 and the amended Section 10 of the Act authorised the State to alter the terms of lease. The lessees were called upon to pay higher rent and royalty under the amended provision and it was the validity of this Amending Act, which in terms interfered with lessee's right, that was challenged in that case. The challenge was upheld on the ground that the legislative power of the State Legislature under Entry 23 of List II was wiped out because of the declaration made under Section 2 of the Central Act of 67 of 1957. The Court held that abolition of rights in the intermediaries in the mines and vesting of these rights in the State as lessors was a topic connected with land and land tenure under Entry 18 of List II but regulating of mining leases sought to be done under impugned amending Section 10 fell within the Entry 23 of List II and only incidentally touched the land in Entry 18 of List II. That is how the contention as to incidental encroachment raised by Mr. Lal Narain Sinha was rejected. The position in the instant case before us is just the opposite, inasmuch as, the Acquisition Act in pith and substance is for acquisition of private forests and touches minerals and leasehold rights in mining leases etc. incidentally. In fact, the observations in para 19 of the judgment in Baijnath Kedia's case itself makes this position very clear. Mr. Lal Narain Sinha's argument was that the topic of legislation concerned in the case was land and therefore fell in Entry 18 of the State List and as such the impugned Amending Section 10 was saved under the doctrine of incidental encroachment. The Supreme Court rejected the contention by observing thus: "The pith and substance of amendment to Section 10 of the Reforms Act falls within Entry 23 although it incidentally touches land and not vice versa." In other words, if vice versa position had obtained the impugned Amending Section 10 would have been saved under the doctrine of incidental encroachment. As we have stated above, in the instant case the Aquisition Act in substance deals with acquisition of private forests under Entry 19 of List II read with Entry 42 of List III and incidentally touches leasehold rights and other rights in mining leases or prospecting licences and therefore the encroachment being incidental the enactment must be held to be valid. This challenge, therefore, also fails,

58. Mr. Paranjpe has next contended that the Acquisition Act was placed in the Ninth Schedule in the month of May 1976 but prior to that the enactment was already void as contravening Articles 14, 19 and 31 of the Constitution and his contention is that putting such invalid or void enactment in the Ninth Schedule cannot cure the infirmity that had attached to it before it was placed in the Ninth Schedule, in our view, there is no substance in this contention. Article 31-B introduces a legal fiction requiring everyone to deem an Act, on being placed in the Ninth Schedule, to be valid and to have been always valid, The material portion of the said Article runs thus:

"...... none of the Acts and Regulations' specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part,........."

Such validity of the enactment is to continue and is to be assumed notwithstanding any judgment or decree to the contrary. It was conceded by Mr. Paranjpe that such a contention has already been overruled not only by this Court earlier but also by the Supreme Court.

59. Having regard to the aforesaid discussion, we are clearly of the view that the challenge to the constitutional validity of the Acquisition Act fails on each of the grounds of attack urged against it. However, in our view, in view of the admitted position to which we have already made a reference in the earlier part of our judgment viz. that in Special Civil Application No. 1553 of 1974 the cut timber or felled material has already been converted into fashioned logs of wood it will not come within the expression 'forest produce' under Section 2(c-1)(v) of the Act and consequently wilt not vest in the State under Section 3 of the Act. Since this felled material which has been lying in the forest, not in its primary or predominantly primary state but is lying there in a highly sophisticated state since 5th July 1974 i.e. prior to the appointed day, the petitioners would be entitled to remove the same or to its price.

60. In the result, though the petition fails on constitutional points raised therein, it is liable to succeed on the aforesaid ground and the necessary directions as prayed for will have to be issued.

61. In Special Civil Application No. 1553 of 1974 rule is made absolute in terms of prayer (b) in respect of the items of property mentioned therein. Similar mandamus is also issued in respect of additional quantity of 131.215 cubic metres which was lying in the Malki land of petitioner No. 1. Mr. Singhvi, however, states that so far this latter item of property viz. 131,215 cubic metres there will be no question of executing the mandamus, inasmuch as, his clients have already removed that quantity under interim orders of this Court.

62. The issuance of the aforesaid writs in terms of prayer (b) in respect of the quantity mentioned in that prayer as well as in respect of additional quantity in favour of the petitioners will be without prejudice to the 4th respondent's rights and remedies, if any, against petitioner No. 1.

63. The Registrar will return the Bank guarantees, duly cancelled, furnished by petitioner No. 3 pursuant to the order dated 29th April 1977.

64. Whichever party has deposited the amount in this Court pursuant to the interim order dated 29th April 1977 as end by way of providing for costs, charges end expenses of the valuer is at liberty to withdraw the amount so deposited.

65. Respondents Nos. 1 to 3 are directed to carry out the mandamus issued above by issuing necessary authorizations and transit passes on or before 31st Aug. 1977.

66. Orders for costs reserved till Thursday, 14th July 1977.

67. Rest of the petitions and matters which have been placed on Board are directed to be placed before the Division Bench or learned single Judge as the case may be for disposal according to law in the light of the aforesaid judgment.

68. Costs of hearing before us in these petitions will be costs before the Division Bench or the learned single Judge as the case may be.

69. As far as the costs of hearing that took place before the Division Bench and before the learned third referee Judge, we direct that the costs of those hearings should be quantified at the rate of Rs. 500 per day and such quantification comes to Rs. 21,000 and the same should be paid by respondents Nos. 1 to 3 to the petitioners. As regards the costs of hearing that took place before us, we are informed that the total hearing has lasted 36 days. We feel that the same quantification at the rate of RS. 500 per day would be the proper costs payable in respect of such hearing. It is true that on the constitutional points that were pressed the petitioners have failed but the petitioners have ultimately succeeded in getting back all the felled material; besides, the other constitutional challenges could not be made in view of the Act having been put in the 9th Schedule. In the circumstances, we feel that two-thirds of the costs of hearing before us at the aforesaid rate should be paid by respondents Nos. 1 to 3 to the petitioners. In other wordsy respondents Nos. 1 to 3 will pay to the petitioners the sum of Rs. 12,000 as and by way of costs of hearing before us.

70. As regards cancellation of the Bank guarantees, the Registrar to act on the minutes.

71. Petition allowed.