Transit regulation cannot become prohibition: timber transport restrictions were beyond delegated power and offended freedom of trade.

A rule-making power to regulate transit of forest produce does not extend to provisions that operate as an absolute or qualified prohibition on transport. The impugned timber transit provisos, which barred movement during part of the night and imposed a cash-deposit condition for the remaining hours, were treated as substantive restrictions rather than mere regulation and were therefore beyond section 37 of the Mysore Forest Act. They also directly burdened freedom of trade, commerce and intercourse, and were not protected by Articles 304 or 305 because they were post-Constitution delegated rules, not existing law, and were not shown to be reasonable restrictions in the public interest. The provisos were struck down.

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Issues: (i) Whether the provisos added to the timber transit rule were within the rule-making power conferred by section 37 of the Mysore Forest Act; and (ii) whether the provisos were saved from challenge by Articles 304 and 305 of the Constitution or were invalid under Article 301.

Issue (i): Whether the provisos added to the timber transit rule were within the rule-making power conferred by section 37 of the Mysore Forest Act.

Analysis: The power under section 37 was to regulate the transit of forest produce. A rule requiring a pass was regulatory, but the impugned provisos imposed an absolute prohibition during part of the night and a qualified prohibition for the remaining hours before 10 p.m., subject to a cash deposit. Such provisions did not merely facilitate or orderly regulate transport; they curtailed the right to transport forest produce. The fact that the restrictions may have been intended to prevent smuggling or unauthorized felling did not convert them into regulation within the statutory power.

Conclusion: The provisos were beyond the rule-making power and were invalid.

Issue (ii): Whether the provisos added to the timber transit rule were saved from challenge by Articles 304 and 305 of the Constitution or were invalid under Article 301.

Analysis: The provisos directly restricted freedom of trade, commerce and intercourse. They were not regulatory measures that facilitated movement, and therefore could not avoid Article 301 on that basis. Article 305 did not protect them because post-Constitution rules made under an existing pre-Constitution statute were not themselves existing law. Article 304 also did not apply, since the provisos were made by the executive under delegated authority and not by the State Legislature, and no case was made out of reasonable restrictions in the public interest.

Conclusion: The provisos were not saved by Articles 304 or 305 and were unconstitutional under Article 301.

Final Conclusion: The impugned provisos were struck down, and the State's appeal failed.

Ratio Decidendi: A power to regulate transit does not authorize provisions that operate as prohibitions or substantive restrictions on movement, and post-Constitution delegated rules that restrain trade cannot be protected by Article 305 as existing law.

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