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TMI Blog1986 (8) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... ph 3. But that would not save the notification since there is no material placed before the court to uphold the notification on that ground. No evidence is placed before the court showing the expenses incurred by the District Council towards the services rendered and the total amount of royalty realised by it. Appeals fail but, we, 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. - C.A. 2069 OF 1972 - - - Dated:- 14-8-1986 - Judge(s) : E. S. VENKATARAMAIAH., G. L. OZA JUDGMENT The judgment of the court was delivered by VENKATARAMIAH J.--Civil Appeals Nos. 2069 of 1972 and 2070 of 1972 by special leave are filed against the common judgment dated July 31, 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. The respondents in these two appeals are forest contractors and they were operating in two forests called Lum Lang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 contended 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 detailed reference would be made hereafter, 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 was, therefore, entitled to levy. It was next 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 private forests. Lastly, it was contended that the fores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 of the territories which formed part of the Autonomous District of United Khasi Jaintia Hills including jowai Autonomous District and the Garo Hills. Certain provisions of the Sixth Schedule to the Constitution were amended by the said Act and the 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 of 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 Area's in the States of Assam, Meghalaya and the Union Territory of Mizoram." The Sixth Schedule to the Constitution as it now stands, is entitled "Provisions as to the Administration of the Tribal Areas in the States of Assam and Meghalaya and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect to such areas. The District Council of jowai Autonomous District, appellant No. 1, is one such District Council. But as mentioned earlier, it was a part of the United Khasi Jaintia Hills Autonomous District prior to December 1, 1964. Paragraphs 3 and 8 of the Sixth Schedule to the Constitution read thus: " 3. Powers of the District Councils and Regional Councils to make laws.-(I) The Regional Council for an autonomous region in respect of all areas within such region and the District Council for an autonomous district in respect of all areas within the district except those which are under the authority of Regional Councils, if any, within the district 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 grazing or for residential or other non-agricultural purposes or for any other purpose likely to promote the interests of the inhabitants 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on passengers and goods carried in ferries ; and (d) taxes for the maintenance of schools, dispensaries or roads. (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 assented to by him, shall have no effect." It 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 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. (vide District Council of United Khasi Jaintia Hills V. Miss Sitimo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am.-These are forests set apart for religious purposes and hitherto managed or controlled by the Lyng-doh or other person or persons to whom the religious ceremonies for the particular locality or village or, villages are entrusted. Explanation.-Lyng-doh in this particular respect is a religious head and not the administrative head mentioned in section 2(r). (iii) Law-adong 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 headman with the help of the Village Durbar. (iv) Protected forests.-These are areas already declared protected for 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 individual 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 maybe declared by rules under this Act. (v) Raid forests:-These are forests managed by the raid and under the control of the local admin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forests. It reads thus: "11. All timber or forest produce removed from Private 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 : Provided that the Executive Committee may direct that any rule made under 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 District Council may regulate felling of trees, etc. Section 13 of the Act reads thus: " 13. Powers to regulate felling of trees, etc.-The Executive Committee shall have power to (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, marking, lopping, tapping or injuring by fire or otherwise of any trees, the Sawing, conversion and removal and the collection and removal of other forest produce; (c) regulate or prohibit the boiling of catechu or the burning of lime or ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution. It cannot be 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 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. State of Kerala [1961] 3 SCR 77, in support of the plea that lands on which forests grew could be taxed under the entry " tax on lands and buildings ". The impugned levy being not a tax levied on land, as we 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 levie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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