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Sri Maula Baksh & Another v. State Of U.P. Thru' Principal Secy. & Others - WRIT - C No. 56244 of 2005 [2006] RD-AH 6499 (23 March 2006)


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Civil Misc. Writ Petition No.56244 of 2005

Sri Maula Baksh and another v. State of U.P. and others

Hon'ble R.K.Agrawal, J.

Hon'ble (Mrs.) Saroj Bala, J.

(Delivered by R.K.Agrawal, J.)

The two petitioners, namely, Sri Maula Baksh and Munna, by means of the present writ petition have sought the following reliefs:-

"(a) A writ, order or direction in the nature of mandamus decalring Rule 5(1) of the U.P.Transit of Timber and other Forest Produce (First Amendment) Rules, 2004 as ultra the provisions of Article 14 of the Constitution of India and also being contrary to the provisions of 2(4) of the Indian Forest Act 1927.

(b) A writ, order or direction in the nature of mandamus restraining to the respondents from realizing any forest produce fee from the petitioner in respect of transportation of sand and mourm from the petitioner under the provision of U.P. Transit and Timber and other Forest Produce Rule 1978 as amended by the Notification dated 14-06-2004 issued by the State Government.

(c) Such other and further order, direction or writ of suitable nature which this Hon'ble Court may deem fit and proper circumstances of the case.

(d) An order awarding cost of this petition to the petitioner."

Briefly stated, the facts giving rise to the present petition are as follows:-

According to the petitioners, they have been granted mining lease/permit by the District Magistrate, Sonebhadra on 28.7.2005. The petitioner no.1 has been granted mining lease for excavation of sand and morrum over plot no.594/305 Raqba 5 acres for the period 6.3.2003 to 5.3.2008 whereas the petitioner no.2 has been granted mining permit for excavation of sand and morrum from Aarazi no.89/91Ga, Raqba 1.960 hectares situate in village Bardiya for a period of three months beginning from 3.8.2005 to 2.11.2005. The land on which the mining lease/permit has been granted to the petitioners either belonged to the State Government or are Bhumidhari Kashta and according to the petitioners, they do not come within any forest area. The petitioners claim that they do not carry on any mining operation in the forest area. The Government of Uttar Pradesh vide notification dated 14.6.2004 had amended the U.P. Transit of Timber and other Forest Produce Rules, 1978 (hereinafter referred to as "the Rules") by which the transit fee @ Rs.38/- per metric ton has been imposed on a truck load of timber and other forest produce. The submission is that the sand and morrum which they excavated, do not come within the meaning of forest produce as defined under Section 2(4) of the Indian Forest Act, 1927 (hereinafter referred to as "the Act) and, therefore, they are not liable to pay any transit fee on the transportation of sand and morrum. The further contention is that the sand and morrum which they excavate, are not excavated from any forest area and, therefore, there is no liability for payment of transit fee. It may be mentioned here that, according to the petitioners, previously they used to pay Rs.25/- per truck transit fee on the transportation of sand and morrum but after 14.6.2004 the authorities are demanding Rs.38/- per metric ton, which is wholly illegal and without the authority of law. According to the petitioners, the transit fee is not in the nature of tax but as the name suggests it is a fee and, therefore, it has to bear a reasonable nexus with the nature of service being rendered by the forest department.

All the pleas raised by the learned counsel for the petitioner has been considered by this Court in the case of Kumar Stone Works and others v. State of U.P. and others, Civil Misc. Writ Petition No.975 of 2004, decided on 27.4.2005 wherein a batch of writ petitions challenging the validity of the notification dated 14.6.2004 issued by the Government of Uttar Pradesh amending the Rules were filed.  The Court has upheld the validity of the said notification. It has also repelled the contention that sand and morrum are not forest produce within the meaning of sub-clause (iv) of clause (b) of sub-section (4) of Section 2 of the Act if those goods are brought from the forest or pass through the forest. It is not the case of the petitioners that sand and morrum which they excavate in the district of Sonbhadra, do not pass through any forest area. Thus, the petitioners are liable to pay the transit fee. The learned counsel for the petitioners could not persuade us to take a different view or to refer the matter for reconsideration by a larger Bench.

In view of the foregoing discussions, following the decision given by this Court in the case of Kumar Stone Works (supra), we do not find any merit in this petition. It is dismissed.




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