District Council Of The Jowai vs Dwet Singh Rymbai Etc

 

Supreme Court of India

District Council Of The Jowai vs Dwet Singh Rymbai Etc on 14 August, 1986

Equivalent citations: 1986 AIR 1930, 1986 SCR (3) 569

Author: E Venkataramiah

Bench: Venkataramiah, E.S. (J)

PETITIONER: DISTRICT COUNCIL OF THE JOWAI

Vs.

RESPONDENT: DWET SINGH RYMBAI ETC.

DATE OF JUDGMENT14/08/1986

BENCH: VENKATARAMIAH, E.S. (J) OZA, G.L. (J)

CITATION:  1986 AIR 1930; 1986 SCR (3) 569; 1986 SCC (4) 38 JT 1986 146; 1986 SCALE (2)240

ACT:

United Khasi and Jaintia                Hills Autonomous  District (Management and Control of Forests) Act, 1958-ss. 3, 4, 8, 11 &  13 and Jowai Autonomous District (Administration) Act, 1967-Royalty on timber brought from private forests-Whether in the nature of a tax-Whether constitutionally valid.

Constitution of India, Art.  244(2)/Sixth Schedule, Paragraphs 3  and 8-Nature  and scope  of powers of District Councils-Competency to levy fees.

HEADNOTE:

Jowai was previously a subdivision of United Khasi Jaintia Autonomous Distict.

Jowai became autonomous district on Dt. 1.12.1964 when Governor of Assam on Dt. 23.11.1964 published a notification, declaring it a separate autonomous district, in official gazette of State of Assam.

The District Council of Jowai was constituted on Dt. 23.03.1967.

In 1967, Jowai District Council (JDC) passed the Jowai Autonomous District (Administration) Act, 1967 (JADAA).

As per Section 3 of JADAA the United Khasi and Jaintia Hills Autonomous District (Management and Control of Forests) Act, 1958 (UKJHADMCFA) and Rules framed under it were made applicable to the Autonomous District of Jowai.

There were two private forests called Lum Langkaraw and Lumkhliem Moriap were situated within jurisdiction of JDC. These forests were belonging to Joseph and Kailla Rymbai. The respondents of the case were forest contractors and were working in these two forests.

Executive committee of JDC levied new royalty on red pine, white pine and log pine timber grown in the private forests by publishing a notification as the executive committee of JDC is empowered to fix new royalty rates under section 8 of UKJHADMCFA as adopted by JADAA.

The area which lies under the jurisdiction of JDC is a tribal area.

Part X of the Constitution provides for the administration of the Scheduled and Tribal Areas.

Originally Article 244 (2) reads as, “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 1969) the autonomous State of Meghalaya was formed within the State of Assam comprising the territories which formed part of the Autonomous District of United Khasi-Jaintia Hills including Jowai Autonomous District and the Garo Hills.

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, 1972, reads thus: "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."

Paragraph 1 of the Sixth Schedule to the Constitution provides that subject to the provisions of that paragraph, the tribal areas in each item of Parts I, II and III of the table appended to paragraph 20 of that Schedule shall be an autonomous District.

If there are different Scheduled Tribes in an autonomous district, the Governor may, by public notification divide the area or areas inhabited by them into autonomous regions.

The Governor has been given power to alter the boundaries of the autonomous districts and the procedure for doing reorganisation of the autonomous district is given in sub-paragraph (3) of Paragraph I 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 rest shall be elected on the basis of adult suffrage.

There shall be A separate Regional Council for each area constituted an autonomous region 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 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 autonomous region shall be vested in the Regional Council for such region.

In an autonomous district with Regional Councils, the District Council shall have only such powers with respect to the areas under the authority 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.

It is seen from Paragraph 3 and Paragraph 8 of the Sixth Schedule to the Constitution that the District Councils and Regional Councils in addition to specified executive functions conferred on them by the other Paragraphs in that Schedule have been 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 enjoyed 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 make laws.

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 8, Paragraph 3 does not contain any subject which authorises the District and Regional Councils 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 reserved forest under the Assam Forest Regulation, 1891 or under any other law for the time being in force, in the area in question.

Section 3 of the UKJHADMCFA refers to six different kinds of forests.

Private 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).

The section 4 of the UKJHADMCFA 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 UKJHADMCFA under which the impugned notification is issued merely says that the Executive Committee may make rules fixing the rates of royalty for each class of trees, timber or forest A produce which shall be published in the Assam Gazette.

'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'.

The appeals were dismissed by the Supreme Court.

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