ASHOK KUMAR ANANDANI Vs. STATE OF U P

JUDGEMENT

(1.) By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioners who are 15 in number, have sought the following reliefs:-

(2.) Briefly stated, the facts giving rise to the present petition are as follows:- According to the petitioners, they have been granted mining leases for excavation of stone ballast, Khanda and boulder under the provisions of the U.P. Minor Minerals Concession Rules, 1963 (hereinafter referred to as "the Rules"). The lease has been granted for a period of 10 years and is still subsisting either on account of its renewal or on account of initial grant. They are excavating stone ballast, Khanda and boulder from their respective areas. According to the petitioners, villages Digara, Gora Macchiya, Dunara, Bijauli, Dangriya, Palli Pohari and Khailar situate in Pargana, Tehsil and District Jhansi are outside the forest area. There is neither any reserved forest nor any protected forest nor any private forest adjoining to the aforementioned villages. These villages are in the shape of Pathari villages where Khanda and boulder are available. After the mining activities, the excavated minerals are lifted and transported from the mining site and are transported using Gaon Sabha road and thereafter it reaches the national highway no.25. These villages are situated near the national highway and there is no forest at all anywhere while transporting the mineral from the mining site of the lease holder areas and going to purchaser destination in Etawah, Jalaun, Lucknow, Kanpur, Unnao etc.

(3.) The mining leases have been granted to the petitioners after obtaining no objection from the Department of Forest in view of the directions given by the Apex Court in the matter of T.N.Godavarman Thirumulkpad v. Union of India and others, decided on 12.12.1996. According to the petitioners, prior to the judgment of 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, no transit fee was being charged from the petitioners in respect of transportation of stone ballast, Khanda and boulder. The Conservator of Forest/Regional Director, Bundelkhand Region, Jhansi, vide order dated 25.11.2005, has directed for establishment of check post at various places in the district of Jalaun for checking/regulating the export of timber and other forest produce. By another order dated 29.11.2005, the Deputy Conservator of Forest, Orai, has directed the Forest Range Officer, Jalaun, Kalpi, Orai, Eta and Kadaura to act in accordance with the judgment of this Court in Civil Misc. Writ Petition No. 975 of 2004, dated 27.4.2005 wherein boulder, Gitti, sand, etc. have been treated as forest produce. According to the petitioners, the order dated 29.11.2005 is wholly misconceived as the decision in Civil Misc. Writ Petition No.975 of 2004 are not applicable to the minerals excavated in the lease hold area which is outside the forest and transportation is through the State highway or the national Highway where the Forest Department has no concern. Stone ballast, Khanda and boulders are not and cannot be included within the definition of the forest produce as given in sub-section (4) of Section 2 of the Indian Forest Act, 1927 (hereinafter referred to as "the Act"). The petitioners have further claimed that they are lifting and transporting the minerals accompanied by Form MM 11 after depositing the royalty and other expenses in accordance with the provisions of the Rules and, therefore, the respondent authorities cannot charge any transit fee on the same in pursuance of the provisions of the U.P. (Transport of Timber and other Forest Produce) Rules, 1978 (hereinafter referred to as "the Transit Rules"). The sole purpose of the regulation of transit of minor minerals is to check illegal transit which is fully achieved by the Rules and there is no occasion for the Forest Department, U.P., to realise the transit fee for transporting the said minerals from the lease hold areas of the petitioners on the pretext that the said minor minerals comes within the definition of the forest produce and the Transit Rules are not applicable for transporting of minor minerals. The plea of violation of Articles 14 and 19(1)(g) of the Constitution of India has also been raised. The petitioners have also assailed the levy and imposition of transit fee on the ground that no service is being rendered. In the supplementary affidavit filed by the petitioners, it has been stated that they are using Gaon Sabha land or private land of the tenure holders before they reach the national highway no.25 and there is no forest road surrounding 25 Km. nor there is any forest while transporting the minerals from the mining site of the lease hold area and going to the purchaser destination in Jalaun, Etawah, Lucknow, Kanpur, Unnao, etc.