JAIPRAKASH ASSOCIATES LTD Vs. TEHRI HYDRO DEVELOPMENT

JUDGEMENT

(1.) IN village Asena, Tehsil Ghanshali, District Tehri Garhwal land was proposed to be leased out in favour of T.H.D.C. for taking out sand, mines and minerals therefrom for the construction of Tehri Dam. State of U.P. vide Government Order No. 135/14 -03 -83 dated 13th January, 1983, Annexure No. S.C.A. -4 of the supplementary counter affidavit filed by respondent Nos. 2 and 3, issued directions to the effect that to transfer any land in the hill area of State of U.P., other than forest land, permission is also required to be taken from the Government of India under Section 2 of the Forest Conservation Act, 1980. In other words, scope of Section 2 of the Act was extended to the land belonging to the State or Panchayat, situated in the hilly areas of the State other than forest land. Undisputedly, permission was sought under Section 2 of the Act from the Central Government to transfer the land of village Asena by way of lease for five years for mining purpose to the T.H.D.C. Government of India, Ministry of Environment and Forest, vide order dated 4th February, 2002, Annexure No. SCA -1 of the supplementary counter affidavit of respondent Nos. 2 and 3 was pleased to accord approval/permission to the then State of U.P. to grant of mining lease in favour of the T.H.D.C., T.H.D.C. having obtained the mining lease from the State of U.P., granted contract to the petitioner to undertake mining activities on the land leased out to T.H.D.C. and to transport the sand, mines and mineral at the site of the construction of Tehri Dam. Meanwhile, Forest Department decided to recover transit fee for transporting the sand, mines and minerals from the mining site to the dam site. Feeling aggrieved, petitioner preferred Suit, being O.S. No. 20 of 2003, in the Court of District Judge, Tehri Garhwal alongwith ad -interim injunction application restraining the Forest Department from recovering the transit fee from the petitioner. However, application seeking ad -interim injunction was rejected by the Trial Judge. Plaintiff/petitioner, herein, thereafter filed A.O. No. 330 of 2003 before this Court wherein Division Bench of this Court passed order on 23.10.2003 which reads as under: -

(2.) SUIT was ultimately withdrawn pursuant to the undertaking furnished before the Division Bench of this Court in A.O. No. 330 of 2003 and matter was referred for decision to the Divisional Forest Officer. Learned Divisional Forest Officer, vide order dated 08.12.2003, was pleased to reject the submissions of the petitioner and was further pleased to hold that petitioner is liable to pay transit fee as asked by the Forest Department. Feeling aggrieved, petitioner preferred present writ petition before this Court.

(3.) SECTION 2(4) of the Indian Forest Act defines the "forest produce", which reads as under: -