DISTRICT COUNCIL OF THE JOWAI v. DWET SINGH RYMBAI ETC.

The Judgment of the Court was delivered by

VENKATARAMIAH, J. Civil Appeal Nos. 2069 of 1972 and 2070 c of -1972 by special leave are filed against the common Judgment dated· 31.7 .1972 in Civil Rule Nos. 477 of 1968 and 483 of 1968 respectively on the file of the High Court of Assam, Nagaland, Meghalaya, Manipur & Tripura. Since common questions of law arise for consideration in these two cases, they are disposed of by this common judgment. D The respondents in these two appeals are forest contractors and they were operating in two forests called Lum Langkaraw and Lumk- hliem Moriap alleged to be belonging to Joseph and Kailla Rymbai. , These forests are situated within the jurisdiction of the District -• Council of the Jowai Autonomous District, Jowai (hereinafter refer- red to as 'the District Council')-Appellant No. 1 herein. On April 20, E 1968 the Secretary of the Executive Committee of the District Council issued a notification levying royalty in exercise of its power under the United Khasi and Jaintia Hills Autonomous Districts (Management and Control of Forests) Act, 1958 (Act 1 of 1959) (hereinafter referred to as 'the Act') on red pine, white pine and log pine timber grown in F .the private forests situated within the jurisdiction of the District Council at the rates specified therein. The Notification reads thus:

"No. JAD/FOR/68/26Dated, Jowai, April20, 1968.

In exercise of the power conferred under Section 8 of G the U. K. and J. Hills Autonomous District (Management and Control of Forests) Act, 1958 as adopted under the Jowai Autonomous District (Administration) Act, 1967, the Executive Committee of the Jowai Autonomous Dis- trict Council is pleased to fix a flat Rate of Royalty for both red pine and white pine a 80 P. per cubit foot for all H ...

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A the squared log pine timber irrespective of the girth classes other than the pine timber that come from private forests, for the squared log pine timber from the private forests that are to go outside the Jowai Autonomous District for trade purposes, the rate of Royalty is fixed at half of the above B scheduled rate, i.e., 40 P. per cft. The above rates will take immediate effect and modify Rule 2 of the U .K. and J. Hills Autonomous Dist!. (Management and Control of Forests Rates of Royalty) Rules, 1959 as far as its applica- tion to white pines and red pines is concerned. This supercedes all orders on the subject.

c Sd/-D. Passah Secretary, Executive Committee District Council Jowai Autonomous District Jowai"

As the respondents became liable to pay the royalty, as specified in the Notification, they instituted the writ petitions in the High Court, out of which these appeals arise, questioning the competence of the District Council and its Executive Committee and officers to levy the royalty in accordance with the Notification on the timber that came from private forests within its jurisdiction. The respondents, among other pleas contended that the royalty, in question, which was in the nature of tax was not leviable by the District Council since it had no authority under the Constitution and the laws made thereunder to impose the said levy. On behalf of the District Council it was con- tended that since the private forests were also under the management and control of the District Council under the provisions of the law in force in that area, to which a detailed reference would be made hereaf- F ter, it was open to it to levy the royalty even though it may be in the nature of a tax. It was next contended on behalf of the District Council that even though a tax cannot be levied on the trees grown in private forests, since the District Council had the competence to levy tax on lands and buildings and the trees in the private forests were grown on the land the. tax in question could be treated as tax on land which it G was, therefore, entitled to levy. It was text contended that even if it could not levy a tax, such amount can be realised by way of fee in order to meet the expenses incurred by the District Council in connection with the management and control of the private forests. Lastly it was contended that the forests in question were not private forests and so the respondents could not maintain the petition at all. After hearing H

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the learned counsel for the parties, the High Court found that the A forests in question were private forests and further held that the Dis- trict Council had no constitutional authority to impose either royalty or tax or fee on private forests and that the Notification dated 20th April, 1968 issued under section 8 of the Act was ultra vires and not sanctioned by the Sixth Schedule of the Constitution ..As a consequ- B . ence of the above finding, the High Court issued a writ of mandamus to the appellants (respondents in the writ petitions) restraining them from realising royalty from the respondents in respect of timber ex- tracted by them from the two forests, referred to above.

Aggrieved by the judgments/orders passed by the High Court in the said writ petitions, the District Council and others who were res- c pondents in the writ petitions, have preferred these appeals to this Court by special leave.

The Autonomous District of Jowai was previously a sub-division of the United Khasi Jaintia Autonomous District and took.the present , D shape of an autonomous district with effect from December 1, 1964 pursuant to a notification issued by the Governor of Assam on November 23, 1964. The District Council came into being on March 23, 1967 and in that very year it passed the Jowai Autonomous District (Administration) Act, 1967. By virtue of section 3 of that Act, the Act and the Rules framed under it were made applicable to the Autonom- E -0us District of Jowai. Subsequently, on April 20, 1968 the.Executive Committee of the District Council issued the impugned notification which is set out above in exercise or its powers conferred by section 8 of the Act, fixing the rates of royalty chargeable on the different types of timber mentioned therein at the rates specified in it.

t In these appeals we are concerned with the constitutional validity F of the abovesaid notification. The area ·which lies within the jurisidc- tion of tM District Council is a tribal area, which originally formed part of the State of Assam. Part X of the Constitution provides for the administratfon of the Scheduled and Tribal Areas. Clause (2) of Arti- cle 244 of the Constitution, as it was originally enacted., reads thus: G "244 (2). The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the State of Assam."

By the Assam Reorganisation (Meghalaya) Act, 1969 (Act 55 of H

576 SUPREME COURT REPORTS [19861 3 S.C.R.

A 1969) the autonomous State of Meghalaya was formed within the State of Assam comprising the territories which formed part of the Auto- nomous District of United Khasi-Jaintla Hills including Jowai Auto- nomous District and the Garo Hills. Certain provisions of the Sixth Schedule to the Constitution were amended by the said Act and the B same were brought into force from April 2, 1970. By the North- Eastern Areas (Reorganisation) Act, 1971 the new State of Meghalaya was created comprising the territories of the autonomous State of Meghalaya and the cantonment and municipality areas of Shillong town. The said State was inaugurated on January 21, 1972.

Article 244(2) of the Constitution, with effect from January 21, ) c 1972, reads thus: I

"244 (2) The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the States of Assam, Meghalaya and the Union Territory of Mizoram." D The Sixth Schedule of the Constitutions, as it now stands, is entitled 'Provisions as to the Administration of Tribal Areas in the States of Assam and Meghalaya and in the Union Territory of Mizoram'. The provisions of that Schedule with which we are con- cerned have not undergone any material change although there have E been several amendments in that Schedule since th~ commencement of the Constitution. They are applicable to the tribal areas within the jurisdiction of the District Council of Jowai-Appellant No. 1 in these appeals.

F Paragraph 1 of the Sixth Schedule to the Constitution provides that subject to the provisions of thatparagraph, the tribal areas in each item of Parts I, II and III of the table appended to paragraph 20 of that '1 Schedule shail be an autonomous District. If there are different Scheduled Tribes in an autonomous district, the Governor may, by public notification divide the area or area8 inhabited by them into autouomous regions. The Governor has been given power to alter the boundaries of the autonomous districts and the procedure for doing G reorganisation of the autonomous district is given in sub-paragraph (3) of Paragraph 1 of the Sixth Schedule to the Constitution. Paragraph 2 of that Schedule provides that there shall be a District Council for each autonomous district consisting of not more than thirty members, of whom , not more than four persons shall be nominated by the Governor and the H

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rest shall be elected on the basis of adult suffrage. There shall be a A .__"?tf . separate ·Regional Council for each area constituted an autonomous re- gion under sub-paragraph (2) of Paragraph 1 of that Schedule. Each District Council and each Regional Council shall be a body corporate by the name respectively of "the District Council of (name of district)" and "the Regional Council of (name of region}'', shall have perpetual B . succession and a common seal and shall by the said name sue and be sued. Subject to the provisions of that Schedule, the administration of an autonomous district shall, insofar as it is not vested under that Schedule in any Regional Council within such district, be vested in the District Council for such district and the administration of an auto- - (, nomous region shall be vested in the Regional Council for such region. In an aufonomous district with Regional Councils, the District,Council c shall have only such powers with respect to the areas under the author- ity of the Regional Council as may be delegated to it by the Regional Council in addition to the powers conferred on it by that Schedule with · respect to .such areas. The· District Council. of Jowai Autonomous District-Appellant No. 1 is one such District Council. But as men- D tioned earlier it was a part of the United Khasi-Jaintia Hills Auto- nomous district prior to December, J, i964.

Paragraphs 3 and 8 of the Sixth Schedule to the Constitution read thus: E "3. Powers of the District Councils and Reginnal Councils to make laws.-(1) The Regional Council for an autono- mous region in respect of all areas within such region and the District Council for an autonomous district in respect of all areas withjn the district except those which are under the ·~. authority of Regional Councils; if any, within the district F ' shall have power to make laws with respect to-

(a) the allotment, occupation or use; or the setting apart, of land, other ·than any land which is a ·reserved forest, for the purposes of agriculture or graz1ng .or for residential or other non-agricultural purpoiiCS or fo.r any G' other purpose likely to promote the interests of the inhabit' ants of any village or town:

Provided that nothing in such laws shall prevent the compulsory acquisition of any land, whether occupied or unoccupied, for public purposes (by the Government of the .H

578 SUPREME COURT REPORTS [1986) 3 S.C..R.

A State concerned) in accordance with the law for the time being in force authorising such acquisition;

{b) the management of any forest not bein.g a reserved forest; B ( c) the use of any canal or water-course for the purpose of agriculture;

(d) the regulation of the practice of jhum or other forms of shifting cultivation;

c (e) the establishment of village or town committees or councils and their powers;

(f) any other matter relating to village or to"\11 ad- ministration, including village or town police and public D health and sanitation;

(g) the appointment or succession of Chiefs or Headmen;

(h) the inheritance of property; E (i) marriage and divorce;

(j) social customs.

{2). In this paragraph, a 'reserved forest' means any area which is a reserved forest under the Assam Forest Regula- tion, 1891, or under any other law for the time being in force in the area in question.

(3) All laws made under this paragraph shall be submitted forthwith to-the Governor and; until assented to by him; shall have no effect."

"8. Powers to assess and collect land revenue and to impose taxes.-{1) The Regional Council for an autonomous re- gion in respect of all lands within such region and the Dis- trict Council for an autonomous district in respect of all H , district except those which are in the areas .lands within the

DISTRICT COUNCIL v. D.S. RYMBAI [VENKATARAMIAH, J.l. 579

under the authority of Regional Councils, if any, within the A district, shall have the power to assess and collect revenue in respect of such lands in accordance with the principles for the time being followed by the Government of the State in assessing lands for the purpose of land revenue in the State generally. B

(2) The Regional Council for an autonomous region in res- pect to areas within such region and the District Council for an auionomous district in respect of all areas in the district except those which are under the authority of Re- gional Councils, if any, within the district, shall have power to levy and collect taxes on lands and buildings, and tolls on c persons resident within such areas.

(3) The District Council for an autonomous district shall have the power to levy and collect all or any of the follow- ing taxes within such district, that is to say- D (a) taxes on professions, trades, callings and emp- loyments;

(b) taxes on animals, vehicles and boats; E (c} taxes on the entry of goods into a market for sale therein, and tolls on passengers and goods carried in fer- ries; and

(d) taxes for the maintenance of schools, dispensa- ries of roads. F (4) A Regional Council or District Council, as the case may be, may make regulations to provide for the levy and collection of any of the taxes specified in sub-paragraphs (2) and (3)° of this paragraph and every· such regulation shall be submitted forthwith to the Governor and, until G assented to by him, shallhave no effect."

I( is seen from Paragraph 3 and Paragraph 8 of the Sixth Schedule to the Constitution set out above that the District Councils and Regional Councils in addition to specified executive functions conferred on them by the other Paragraphs in that Sc)ledule have been H

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A given legislative powers in respect of certain topics mentioned in Paragraph 3 and the power to levy the taxes specified in Paragraph 8 of that Schedule. The powers en joyed by these District Councils cannot be equated with*the plenary powers enjoyed by a legislature. Their powers to make laws are limited by the provisions of the Sixth Schedule. The Courts cannot constructively enlarge their powers to ll make laws. (Vide District Council of United Khasi '& Jaintia Hills & Ors. Etc. v. Miss Sitimon Sawian Etc.) [1972] l S.C.R. 398 at page 407. Paragraphs 3 and 8 of the Sixth Schedule to the Constitution follow almost the same pattern in which the subjects in List I and List II of the Seventh Schedule to the Constitution have been enumerated. While the subjects relating to taxation are dealt with separately in Paragraph c 8, Paragraph 3 does not contain any subject which authorises the Dis- trict and Regional Cquncils to levy taxes. Paragraph 3 confers powers on the said Councils to make laws only to regulate matters specified therein. Paragraph 3(1)(b) empowers the District Council to make laws with respect to the management of any forest not being a reserved forest. Paragraph 3(2) defines a 'reserved forest' as any area which is a D reserved forest under the Assam Forest Regulation, 1891 or uuder any other law for the time being in force, in the area in question. It may also be noted that there is no specific reference to the power to levy any fees in respect of any matter mentioned in Paragraph 3 in the Sixth Schedule to the Constitution similar to the corresponding provi- sions in the penultimate entry in List I and the last entry in the other E two List~ in the Seventh Schedule to the Constitution. But having regard to the nature of a fee, which is an amount levied as quid pro quo for services rendered, the power to levy fees i.n respect of any of the matters mentioned in Paragraph 3 should be necessarily implied. But such fee should not be disproportionately very high, i.e., a tax in dis-· ,~

guise. The Act was enacted for the purpose of making provisions re- F garding the management and the control of forests (which are not reserved forests) in the area within the jurisdiction of the District Council in exercise of the powers conferred by Paragraph 3{1){b) of the Sixth Schedule to the Constitution.

Section 3 of the Act refers to six different kinds of forests. That G section reads thus:

"3. Classification of Forests-The forests to which this Act applies are classified under the following categories:

(i) (a) Private Forests-These are forests belonging lo an H

DISTRICT COUNCIL v. D.S. RYMBAI [VENKATARAMIAH, J.] • 581

individual or clan or joint clans which are grown or in- A f herited by him or them in recognised Private lands (Ri Kynti);

(b) Law-Ri-Summar-These are forests belonging to an individual clan or joint clans (which are) grown (or in- B herited) by him or them in a village or common raj land.

(ii) Law Lyng-doh, Law Kyntang, Law Niam: These are forests set apart for religious purpose~ and hith.erto man- aged or controlled by the Lyngdoh or other person or persons to whom the religious ceremonies for the particular c locality or village or villagers are entrusted.

'. Explanation: Lyngdoh in this particular respect is a religi- ous head and not the administrative head mentioned in section 2(r). D' (iii) Lawcadong and Law-shnong: These are village forests hitherto reserved by the villagers themselves for conserving water, etc. for the use of the villages and managed by the Sirdar or headmen with the help of the Village Durbar. E (iv) Protected Forests: These. are areas already declared protected fo.r the growth of trees for the benefit of the local inhabitants and also forests that may be so declared by rules under this Act.

(v) 'Green Blocks: These are forests belonging to an indi- F vidual family or clan or joint clans and raj lands already declared as Green Block by Governments for aesthetic · beauty and water supply of the town of Shillong and its suburbs and also forests that may be declared by rules un- der this Act. G (vi) Raid Forests: These are forests managed by the Raid and under the control of the local adminis\rative head sub- ject to rules to be prescribed by the District Council."

S'eciion 4(a) of the Act provides that Private Forests and Law-R·i- Sumar which are mentioned in section 3(i)(a) and (b) of the Act shall H

582' SUPREME COURT REPORTS [1986] 3 S.C.R.

A be managed by the owners thereof subject to the rules that may be framed by District Council from time to time in the general interest of '"I the forestry of the district. Privaie Forests are forests belonging to an individual or clan or joint clans which are grown or inherited by him or them in recognised private land (Ri Kynti). In section 4 of the Act, as B regards removal of forest produce it is provided thus:

"Removal of Forest produce: No timber or forests produce shall be removed for the purpose of sale, trade or business from Protected Forests, Green Blocks, Raid Forests without the order in writing of the Forest Officer of the District Council which order may be given only on pre- c vious receipt of the royalty on such timber or forest pro- duce at rates as may be prescribed by the District CYouncil.

Provided:

D (i) that the royalty on timbers of reserved trees from Raid Forests shall be half the full rates in respect of persons living in the neighbouring area of the Forest where the timber is needed for their own domestic use, i.e., for build- ing purpose only;

·.E (ii) that no royalty shall be charged for the removal of timber from Green Blocks by the owners thereof, or for the removal of the timber or any forest produce from a Raid '-, Forest by the members of the Raid for their own domestic use;

F (iii) that all royalty realised shall be credited to the District ~ Fund;

(iv) that the District Council shall· quarterly give to th~ Siemships, Dolloiships and Sirdarships a share of the roy- aliy at a percentage to be prescribed by it." G It may be noticed that the abov.e part of section 4 of the Act refers to Protected Forests, Green Blocks and Raid Forests and if any person wants to remove timber for sale etc. he should pay royalty at the rates to be prescribed by the District Council. It does not refer to ' Private Forests. Section 8 of the Act under which the impugned notifi- H cation is issued merely says that the Executive Committee may make

DISTRICT COUNCIL v. D.S. RYMBAI [VENKATARAMIAH, J.) -583

rules fixing·the rates of royalty for each class of trees, timber or fprest A produce which shall be published in the Assam Gazette. Section 11 of the Act refers to royalty. payable in respect· of timber in Private Forests. It reads thus:

"11. AIJ timber or forest produce removed from Private B Forests and Law-Ri-Sumar shall be liable to payment of half the full rates of royalty prescribed for such timber or forest produce under section 8 above, when exported beyond the District or when brought to Shillong in vehicles for purposes of trade; ( ! I Provided tbat the Executive Committee may direct c that any rule made owder this Section shall not apply to any specified class of timber or other forest produce or to any specified local area."

Under section 13 of the Act, the Executive Committee of the D District Council may regulate felling of trees etc. Section 13 of the Act reads thus:

"13. Powers to regulate felling of trees; etc.-The Execu- tive Committee shall have power to- E (a) regulate or prohibit the kindling of fires, and prescribe the precautions to be taken to prevent the spread of fires;

(b) regulate or prohibit the felling, cutting, girdling, mark- "ing; lopping, tapping or injuring by fire .;r otherwise of any trees, the sawing conversion and removal and the collec- F tion and removal of other forest produce;

(c) regulate or prohibit ihe boiling of catechu or the burn- ing of lime or charcoal;

(d) regulate or. prohi bi\ the cutting of grass and pasturing of cattle and regulate the payment, if any, to be made for such cutting or pasturing;

\ (e) regulate the sale or free grant of forest produce; and

(.f) prescribe or authorise any forest officer to prescribe H

584 SUPREME COURT REPORTS (1986) 3 S.C.R.

I I . . . A subject' to the control of the Executive Committee, the fees, royalties for other payments for forest produce, and the manner in which such fees, royalties, or c '.her payments are to be levied, in transit or partly in transit or otherwise."

B . The question before. us is whether the royaity levied by the im- pugned notifieation can be realised by the District Council in respect of trees in private forests. 'Royalty' according to Jowitts' Dictionary of ..... English. Law means 'a payment reserved by the grantor or patent, lease of a mine or.similar right and payable proportionately to the use made ~'. of the right by the grantee'. In the true sense what is sought to be r~covered under the Act is not royalty since the forest does not belong c to the District Council. The amount claimed by way of royalty under the Notification is a compulsory exaction of money by a public author- ity for public purposes enforceable by law and is not a payment for services rendered. It is truly, in the nature of a tax. ·~

D . In'the High Court various claims were put forward in support of the impugned levy. It was contended that the royalty in question came under clauses (a) and (c) of Paragraph 8(3) of the Sixth Schedule to the Constitution, namely, taxes on profession, trades, callings and emp- loyment, or taxes on the entry of goods into market for sale therein. It being neither of the two kinds of taxes, referred to above, the High E Court rightly _rejected the above contention. 't:· ' \ It was next urged before the High Court that the levy came. within sub-paragraphs (1) and (2) of Paragraph 8 of the Sixth Schedule to the Constitution which authorised levy of tax on lands on the ground . that the trees were growing on the land. The 'same contention is again f, pressed before us. We find it difficult to agree with the above submis- .. '- sion since if the levy is land revenue.then it should have been fixed in · accordance with the principles for the time being followed by the Government of the State in assessing lands for the purpose of land revenue in the State generally as required by sub-paragraph (1) of Paragraph 8 of the Sixth Schedule to'the Constitution. It cannot be G ·.sustained as any other kind of tax on land since the· royalty payable has no reference to the extent of the land and the nature of the land and its potentialities. It is a tax only on the timber which is brought from -..___ private forests. The notification in unambiguous terms says that the ··royalty shall be on the squared log pines. It has no reference to the land on which those trees have grown. In pith and substance it is a tax on forest produce grown on private lands. The District council has no

DISTRICT COUNCIL v. D.S. RYMBA! [VENKATARAM!AH. J.] 585

A •' power to levy such a tax on forest produce under Paragraph 8 of the . Sixth Schedule to the Constitution. Reliance was, however, placed on the minority judgment of Justice Sarkar in K. T. Moopil Nair v. The State of Kera/a & Ors., [1961] 3 S.C.R. 77 in support of the plea that lands on which forests grew could be taxed under entry .'tax on fands and buildings'. The impugned levy being not a tax levied on land as we B have pointed out above, the said observation in the above decision is not .useful to the appellants. We may add that the very same learned Judge has observed at page 106 that no tax could be levied by a State Legislature on forests as such while tax may be levied on the land on which forests grew. But we are convinced that the levy in question is not a levy on land. This contention has, th~refore,.to fail. c The appellants have.not been able to establish that the impugned royalty was leviable under any other provision. It was no doubt true that it was argued before the High Court that it was open to the District Council to ·levy fees as quid pro quo for the services rendered by it to the forest owners or contractors. The High Court erred in D holding that even fees could not be levied under Paragraph 3 of the Sixth Schedule to the Constitution. We have already held that even though there is no express provision to levy such fees, the District Council can levy fees under Paragraph 3. But that would not save the Notification since there is no material placed before the Court to up- hol<hhe Notification on that ground. No evidence is placed before the E Court showing the expenses incurred "by the District Council towards the services rendered and the total amount of royalty realised by it. · Unless the levy·satisfied the true characteristics of fee as laid down by this Court in The Commissioner, Hindu Religious Er.dowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] S.C.R. 1005 it cannot be upheld even as a fee (See also Om Parkash F Agarwal and Ors. v. GiriRajKishoriandOrs., [1986] 1S.C.C.722.)

Insofar as the question whether the forests from which the res- pondents were bringing timber were private forests or not, we find that the High Court after considering all the relevant facts before it has recorded a finding that they are private forests. It is not also shown by G the appellants that they belong to •any other category of forests refer- red in section 3 of the Act. The plea of the appellants in the statement of objections before the High Court was that tliere were no private forests at all jn Jowai District. This statement cannot he accepted as the Notification purports to levy royalty on timber brought from pri- vate forests. If there were no private forests at all the District Council H

586 SUPREME COURT REPORTS [1986] 3 S.C.R.

A would not have issued the Notification levying royalty on timber got from private forests. In any view of the matter, there is no sufficient ground to disturb the finding of the High Court on the above question.

In the result these appeals fail and they are dismissed but, we B however, set aside the finding of the High Court that no fees can be levied by the District Council in respect of matters enumerated in Paragraph 3 of the Sixth Schedule to the Constitution.

There is no order as to costs. I

P.S.S. Appeals dismissed. ~