Rajiv Sharma and Rakesh Srivastava, JJ.
1. The writ petitions, mentioned above, arise common question of facts and law. They are being heard together and are being disposed of by a common order. Misc. Bench No. 12659 of 2014, Suresh Kumar Mishra v. State of U.P., is being treated as the leading case, and for convenience, the facts are being extracted below.
2. The challenge in all the, writ petition, mentioned above, is an order dated 20.12.2013 passed by the Additional Principal Chief Conservator of Forest, Lucknow by means of which the Chief Conservator of Forest, Bundelkhand Zone, Uttar Pradesh, Allahabad, Meerut Central, Lucknow, West Kanpur, Eastern Gonda and Gorakhpur regions held the meeting with the concerned District Magistrate/Mines Officers and obtained the name and address of the lease holders so that the transit fee could be recovered as arrears of land revenue on the basis of Form M.M.-11, the details of which have already been requested from the concerned District Magistrate. The petitioners have also challenged the order dated 16.10.2014 passed by the Chief Conservator of Forest, Bundelkhand Zone, Jhansi, Uttar Pradesh by means of which the representation made by the petitioners, to the effect, that they are not liable to pay the transit fee, has been rejected.
3. The petitioners have been granted mining lease of building stone, khandas, gitti and boulders for an area known as plot No. 339, village Daharra, District Mahoba, measuring 4 acres for a period of ten years, which was renewed in 2006 for a further period of ten years, which was to expire in 2016, under the provisions of the Uttar Pradesh Minor Minerals (Concession) Rules, 1963 (for brevity 1963 Rules). However, in the year 2011, the lease of the petitioners was determined by the State Government by exercising power under Section 4A of the Mines and Minerals (Regulation and Development) Act, 1957 (for brevity "1957 Act") for raising the height of Kabrai dam for solving the problem of irrigation and drinking water in the Bundelkhand area. On 20.12.2013, the Additional Principal Conservator of Forest, Lucknow directed the Chief Conservators of Bundelkhand Zone, Uttar Pradesh, Allahabad, Meerut Central, Lucknow, West Kanpur, Eastern Gonda and Gorakhpur regions to hold a meeting with the concerned District Magistrate/Mines Officers and obtained the name and address of the lease holders so that transit fee can be recovered as arrears of land revenue on the basis of Form M.M.-11, the details of which have already been requested from the concerned District Magistrate.
4. In pursuance of the aforesaid order/circular, the Divisional Forest Officer, Mahoba Forest Division, Mahoba issued demand notice dated 20.1.2014 on the basis of Form M.M.-11 used by the petitioner/lease holder. Aggrieved by the order/circular dated 20.12.2013, and the demand notice dated 20.1.2014, the petitioners have approached this Court by filing writ petitions, which was disposed of finally vide judgment and order dated 12.3.2014 with the direction to the petitioners to submit a comprehensive representation to the Chief Conservator of Forest, Bundelkhand Division, Jhansi within fifteen days, and the latter was directed to examine the matter and dispose of the said representation after giving opportunity of hearing to the parties within next three months.
5. In pursuance of the order dated 12.3.2014 passed by this Court, the petitioners made representations to the Chief Conservator of Forest, Bundelkhand Division, Jhansi. Subsequently, the petitioners filed some additional documents in support of their case. The Divisional Forest Officer, Mahoba filed his reply to the objections, representations and the additional documents filed by the petitioners. On 14.10.2014, the petitioners filed their replication and after hearing both the contesting parties the Chief Conservator of Forest concerned passed the order dated 16.10.2014 by means of which the representations made by 22 lease holders were rejected, and the said lease holders including the petitioners were directed to deposit the amount, mentioned in the notice issued to lease holders earlier.
6. Shri Mukesh Prasad, learned counsel for the petitioners has submitted that since the area where the petitioners are carrying on mining operation has not been declared as forest area under Section 20 of the Forest Act, 1927 (for brevity 1927 Act), and as such no transit fee could be levied from the petitioners. He further submitted that on area on which the petitioners have carried on mineral excavation has not been declared forest area under Section 29 of the 1927 Act. He has further submitted that the transport fee could be realized on minerals, which are found in or are transported through the forest area, but not in cases where minerals are found on revenue land, and are not transported through the forest area, no transit fee could be levied. He has further submitted that the petitioners had sold goods from mining area, and as such they were not liable to pay any transit fee, and it was the transporters, who were liable to pay transit fee. In the circumstances, it has been submitted by the petitioners that the petitioners are not obliged to pay the transit fee, as demanded by the respondents.
7. Per contra, learned standing counsel supported the impugned orders and has submitted that it was the duty of the lease holders to issue Form M.M.-11 for facilitating the movement of minor minerals and in terms thereof, mining department vide letter No. 4389/MMC-30-Van dated 21.12.2013 sent the requisite information to the Mahoba Forest Division and since the minor minerals excavated by the petitioners are transported through "Protected Forest" area, it was compulsory for them to procure the transit fee and deposit the same before issuing Form M.M.-11 to the transporter or buyer.
8. Heard Shri Mukesh Prakash, learned counsel for the petitioners in all the writ petitions and the learned standing counsel and also perused the record.
9. Before considering the arguments advanced by the learned counsel for the petitioners, it would be prudent to examine the statutory provisions, which are relevant for the purposes of present controversy.
10. The transit fee is payable on forest produce. Forest produce has been defined in Section 2(4) of 1927 Act, which reads as under:
"2(4) "forest-produce" includes:
(a) the following whether found in, or brought from, a forest or not, that is to say timber, charcoal, caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds, [kuth] and myrabolams, and
(b) the following when found in, or brought from a forest, that is to say
(i) trees and leaves, flowers and fruits, and all other parts or produce not herein before mentioned, of trees,
(ii) plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of such plants,
(iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax, and all other parts or produce of animals, and
(iv) peat, surface soil, rock and minerals (including limestone, laterite, mineral oils, and all products of mines or quarries),"
11. Section 41 of 1927 Act empowers the State Government to frame rules to regulate transit of forest produce and while exercising that power State Government under Sections 41, 42, 51 and 26 of the 1927 Act amended the Uttar Pradesh Transit of Timber and other Forest Produce Rules, 1978 by the 1st Amendment Rules, 2004.
12. It is not in dispute that the Forest Department has got powers only to realize transit fee if the minerals pass through the forest or if the lease has been granted on forest area. The Forest Department has no powers to regulate excavation, transportation and storage of the minerals in non-forest land.
13. Section 4 read with Section 20 of the 1927 Act prescribes the mode of declaration of any area by notification as reserved area, specifying as nearly as possible, the situations and limits of such land. Sections 4 and 20 of 1927 Act reads as under:
"4. Notification by State Government.--(1) Whenever it has been decided to constitute any land a reserved forest, the State Government shall issue a notification in the Official Gazette--
(a) declaring that it has been decided to constitute such land a reserved forest;
(b) specifying, as nearly as possible, the situation and limits of such land; and
(c) appointing an officer (hereinafter called "the Forest Settlement-officer") to inquire into and determine the existence, nature and extent of any rights alleged to exist in favour of any person in or over any land comprised within such limits or in or over any forest-produce, and to deal with the same as provided in this Chapter.
Explanation.--For the purpose of Clause (b), it shall be sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily intelligible boundaries.
(2) The officer appointed under Clause (c) of sub-section (1) shall ordinarily be a person not holding any forest-office except that of Forest Settlement Officer.
(3) Nothing in this section shall prevent the State Government from appointing any number of officers not exceeding three, not more than one of whom shall be a person holding any forest-office except as aforesaid, to perform the duties of a Forest Settlement Officer under this Act.
20. Notification declaring forest reserved.--(1) When the following events have occurred, namely:
(a) the period fixed under Section 6 for preferring claims have elapsed and all claims (if any) made under that section or Section 9 have been disposed of by the Forest Settlement Officer;
(b) if any such claims have been made, the period limited by Section 17 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the appellate officer or court; and
(c) all lands (if any) to be included in the proposed forest, which the Forest Settlement Officer has, under Section 11, elected to acquire under the Land Acquisition Act, 1894 (1 of 1894), have become vested in the Government under Section 16 of that Act,
the State Government shall publish a notification in the Official Gazette, specifying definitely, according to boundary-marks erected or otherwise, the limits of the forest which is to be reserved, and declaring the same to be reserved from a date fixed by the notification.
(2) From the date so fixed such forest shall be deemed to be a reserved forest."
14. The Mines and Minerals (Regulation and Development) Act, 1957 framed in exercise of powers under List-I, Entry 54 of the 7th Schedule of the Constitution of India. Section 2 of 1957 Act provides that the Union has taken under its control regulation of mines and the development of minerals to the extent provided in Section 2 of the 1957 Act, which reads as under:
"Declaration as to the expediency of Union control.--It is hereby declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided."
15. Rule 3 of the 1978 Rules provides for regulation of transit of forest produce by means of passes and no forest produce can move into or from or within the State of Uttar Pradesh except without a transit pass. Rule 3 reads as under:
"3. Regulation of transit of forest produce by means of passes.--No forest produce shall be moved into or from or within the State of Uttar Pradesh except as hereinafter provided, without a transit pass in the form in Schedule A to these rules from the officer of the Forest Department or a person duly authorized by or under these rules to issue such pass or otherwise than in accordance with the conditions of such pass or by any route or any destination other than the route or destination specified in such pass:
Provided that no transit pass shall be required for removal--
(a) of any forest produce which is being removed for bona fide consumption by any person in exercise of a privilege granted in this behalf by the ''State Government'' or a right recognized under the Act, within the limits of a village in which it is produced;
(b) of forest produce by contractors'' agency from the forests managed by the Forest department, in which case the movement shall be regulated by the relevant conditions of sale and terms of the corresponding agreement deed executed by the buyers;
(c) of such forest produce as may be exempted by the State Government from the operation of these rules by notification in the Official Gazette."
16. It is apt to mention here that transit fee has been charged by the Forest Department from the transporters of minerals at the check post established under Rule 15 of the 1978 Rules and has never been charged or demanded from the petitioner. If as per case of the forest departments, transit fee was to be paid by the lease-holders, the petitioner fails to understand as to what had prevented the forest departments from charging transit fee from the petitioner from 2005-06 till date. It is always the responsibility of the Transporter who passes through the forest barrier to pay the transit fee. Transit fee cannot be calculated on the basis of Form M.M.-11, but is on the basis of per cubic meter of capacity on the number of vehicles passing through the forest area. Thus, method of calculating transit fee on the basis of total Form M.M.-11 is absolutely illegal, arbitrary and without any authority of law. Moreover, the transit fee is a single point fee which has already been charged at the barrier, thus, it cannot be realized again on the same consignment of forest produce/minerals.
17. For the reasons aforesaid, we are of the view that under the 1978 Rules, it is not the responsibility of the leaseholder to issue a transit pass. Transit pass, in Form in Schedule ''A'', under Rule 3 of the 1978 Rules is issued by an officer of the Forest Department or a person duly authorized by or under the Rules to issue such pass and not by the lease holder. Thus, the petitioners are not liable to pay the transit fee since they are not transporting the mineral but the Transit fee is to be paid by the person who transports the mineral from the mining area through the Forest.
18. For the reasons aforesaid, impugned orders dated 20.12.2013 and 16.10.2014 are hereby quashed. All the writ petitions are allowed in above terms. There is no order as to costs.
