TMI Blog2005 (4) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... a. The petitioners allege that they do not carry on any mining operation in the forest area. After excavation of boulders, rocks, sand and morrum etc., they transport the goods from the site to the destination by truck. The petitioners convert the stone and boulder into Gitti. It is the case of the petitioners that while transporting the goods, it does not pass through the forest area and they are not using any forest road for the purpose of transportation of their goods. They pay royalty to the State Government under the provisions of the U.P. Minor Minerals Concession Rules, 1963 @ Rs. 30/- per cubic metre. Prior to the amendment in the Rules, by notification dated 14.6.2004, a fee of Rs. 5/- per tonne of lorry load on timber and other forest produce was payable by the person carrying or transporting the forest produce which the petitioners were paying. However, vide notification dated 14.6.2004, the Rules have been amended and a fee of Rs. 38/- per tonne has been levied. The increase of the fee from Rs. 5/-to Rs. 38/- is under challenge in the present batch of petitions. 3. In the counter affidavit filed by Sri .R.P.Mali, Assistant Conservator of Forest, Chopan, Forest Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court of the Additional District Judge had upheld the claim of the Forest Department for being a reserved forest area notified under Section 4 of the Act. The order dated 31.5.2003 passed by the Additional District Judge is the subject matter of various writ petitions before this Court in which interim order has been passed to the effect that the Forest Department will not raise any objection or hindrance in the mining operation of the petitioners provided mining lease and mining rights are subsisting. Thus, according to the State respondents, grit, boulder and sand being procured and transported by the petitioners, are found in or brought from the forest and as such the same are forest produce within the meaning of Section 2(4) of the Act. Even the source of river sand is the forest area from where by the flow of water, stones are converted into small particles and accumulated in the river bed and as such sand is also undisputedly forest produce within the meaning of the foresaid provision. It has also been stated that the Rules was enacted in the year 1978 and Rule 5 thereof initially provided for realisation of transit fee on the forest produce @ Rs. 5/- per tonne. Its vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the petitioners. 6. In Civil Misc. Writ Petition No. 985 of 2004, the petitioners have established stone crushers in rural area of district Saharnpur. They do not have any mining lease. They purchase boulders, stone papples, from the mining lease holders who have been granted mining lease under the provisions of the U.P. Minor Mineral Concession Rules, 1963. According to the petitioners, they are purchasing the aforesaid goods which are raw materials from M/s Abdul Wahid Company and M/s G.M.V.N., village Banjarawal which is in the State of Uttaranchal. After crushing the stone boulders and stone papples, they get converted into stone grit, stone chips and stone dust which are sold to different purchasers in the State of U.P. They are being transported in vehicles. According to the petitioners, the stone boulders and stone papples which are extracted from the mines under the valid mining lease held by their sellers, are not situate in any forest land and, on the other hand, it is situate on the Government owned revenue land and, therefore, the extracted minor mineral cannot be said to be forest produce. It is the case of the petitioners that they do not use any forest l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bajari and limestone at Najibabad, district Bijnor, They purchase the minor minerals from Uttaranchal Van Vikas Nigam and after paying all dues and taxes, transport it to their principal place of business at Najibabad, district Bijnor from where the goods are sold to individual buyers. It is alleged that they do not use any forest land and, therefore, there is no liability for payment of transit fee. 12. We have heard Sarvasri Shashi Nandan, learned Senior Counsel, assisted by Sri M.L. Srivastava, W.H. Khan, B.P.Singh, N.C. Gupta, A.K. Gaur, B.K. Narayan, on behalf of the petitioners, and Sri S.M.A.Qazmi, learned Chief Standing Counsel, assisted by Sri S.P.Kesarwani, on behalf of the respondents. 13. Sri Shashi Nandan, learned Senior Counsel, who led the arguments, submitted that admittedly the notification under Section 4 of the Act was issued some times in the year 1969-70 and thereafter no notification under Section 20 of the Act has been issued. Thus, he submitted that land in question from where the mining activities are being carried out by the petitioners in the district of Sonebhadra for which necessary mining lease/permits have been granted, cannot, by any stretch of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries v. The State of Bihar and Ors., (1971) 2 SCC 236. 19. Sri S.M.A.Qazmi, learned Chief Standing Counsel, submitted that under Section 41 of the Act, the State Government has been empowered to make rules to regulate the transit fee on all timbers and other forest produce. Under clause (a) of Sub-section (2) of Section 41 of the Act, the State Government has been empowered to make Rules to prescribe the route by which alone timber or other forest produce may be imported, exported or moved into, from or within the State. Under clause (c), the State Government has been empowered to provide for the issue, production and return of such passes and for the payment of fees therefor. The State Government has further been empowered to make Rules under Section 76 of the Act. According to him, the Rules have been framed under the aforesaid provisions. Rule 3 of the Rules provides for regulation of transit of forest produce by means of passes. Rule 4 specifies the officers and persons who shall have power to issue the passes under the Rules. Rule 5 provides for the fee payable for different classes of passes. According to him, since the year 1978, a fee of Rs. 5/- per tonne of capacity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons:- (i) Nipendra Chandra Dutta Majumder and Ors. v. Administration of Tripura and Ors., AIR 1969 Tripura 62; (ii) Janu Chandra Waghmare and Ors. v. The State of Maharashtra and Ors., AIR 1978 Bombay 110 (FB); (iii) Indian Wood Products Co. Ltd. v. State of U.P. and Anr., AIR 1999 Allahabad 222, and (iv) T.N. Godavarman Thirumulkpad v. Union of India and Ors., (1997) 2 SCC 267. 21. At the outset it may be mentioned here that the validity of the Rules have not been challenged by any of the petitioners and rightly so as its validity has been upheld by the Apex Court in the case of Sitapur Packing Wood Suppliers (supra). In the aforesaid case, the Apex Court has held that the transit fee under Rule 5 is clearly regulatory and, thus, it was not necessary for the State to establish quid pro quo. 22. Having given our anxious consideration to the various submissions made by the learned counsel for the parties, we find that the forest produce has been defined in Sub-section (4) of Section 2 of the Act as follows:- "(4) Forest Produce includes - (a) the following, whether found in, or brought from, a forest or not, that is to say - timber, charcoal, coutchouc, catechu, wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in the case of Smt. Pyari Devi v. State of U.P. and Ors., 2003 (5) AWC 3945, has upheld the powers of the Additional District Judge to correct a mistake which was apparent in the order dated 23.2.1992. In the aforesaid case, the application made by the Forest Department, being Review Application No. 2180 of 1992, Forest Department v. Mahendra Singh and Ors., has been allowed and an order directing for constituting a reserved forest under Section 4 of the Act has been upheld, which order has been passed pursuant to the directions given by the Apex Court in Writ Petition No. 1081 of 1992, Banwasi Sewa Ashram v. State of U.P. and Ors. 25. We find that in the case of Suresh Lohiya v. State of Maharashtra and Anr., (1996) 10 SCC 397, the Apex Court while considering the definition clause of Sub-section (4) of Section 2 of the Act, has held that the legislature having defined 'forest produce', it is not permissible for us to read n the definition something which is not there. It has held as follows:- "7. The legislature having defined "forest-produce", it is not permissible to us to read in the definition something which is not there. We are conscious of the fact that fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o take recourse to various dictionaries and the meaning ascribed therein. 29. In Collins Cobuild Advanced Learner's English Dictionary, New Edition, the New Shorter Oxford English Dictionary on Historical Principles. Volume I, A-M, the World Book Dictionary, Volume I, A-K, the Concise English Dictionary, and the Random House Dictionary of the English Language, Unabridged Edition, the word 'brought' means the past tense and past participle of bring. Thus, we have to see the meaning of the word 'bring' as the word 'brought' is the past tense and past participle of 'bring'. 30. In P. Ramanatha Aiyar's Advanced Law Lexicon, 3^rd Edition (Extensively Revised and Enlarged) Volume 1 A-C, 2005, the word 'brought' means taken; carried. 31. In Merriam-Webster Online Dictionary, the word 'bring' means to convey, lead, carry, or cause to come along with one towards the place from which the action is being regarded. 32. The New Shorter Oxford English Dictionary on Historical Principles. Volume I, A-M, various meanings have been given to the word 'bring'. One of the meanings given is "cause to come from, into, out of, to, etc., a state or condition, to an action" and "cause to come or go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me meaning. 39. The goods involved in the present case are mentioned in sub-clause (iv) of clause (b) of Sub-section (4) of Section 2 of the Act as the said clause (b) of Sub-section (4) of Section 2 of the Act deals with all surface soil, rock and minerals including lime stone and all produce of mines or quarry. Each of the goods involved in the present petitions are products of either surface soil, rock or minerals or produce of mines or quarries. The only requirement of their being forest produce would be as to whether they are found in a forest or being brought from a forest. So far as the goods involved in the writ petitions relating to district Sonebhadra are concerned, we find that all the items are found in forest except sand. The words "brought from forest necessarily implies that it passes through the forest. In any event, they are being brought from forest. Similar is the case in respect of the goods involved in other writ petitions which relate to other districts. 40. In the case of Sonebhadra Miner Mineral Lease Permit Holders Association (supra), this Court has held that if the minor mineral excavated or not found in or brought from the forest, as defined under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the word 'forest' would include all that goes with it and even the mines and quarries which remained beneath the surface of the earth with minerals, stones and other products locked up in the land, will form part of the forest. They are being brought from the forest as during transportation they cross the forest. 46. Applying the principles laid down in the aforesaid cases to the facts of present cases, we find that under sub-clause (iv) of clause (b) of Sub-section (4) of Section 2 of the Act all the goods in question would be covered as forest produce. All of them are being brought from the forest. In the districts of Sonebhadra, Chitrakoot, Saharanpur and Bijnor, which are major districts where the present petitioners deal with the goods, there are large forest and it cannot be believed that the goods are not being brought from forest land. Even the roads constructed by the Public Works Department pass through forest and, therefore, the goods would be covered under the definition 'forest produce referred to above. Thus, they are liable to transit fee. The decision in the case of Indian Mica Micanite Industries (supra), relied upon by Sri N.C.Gupta, wherein the Apex Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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