Decided on August 07,2012



TARUN AGARWALA,J. - (1.) HEARD Sri Pankaj Kumar Singh, the learned counsel for the petitioners and Sri U.K. Uniyal, the learned Advocate General, assisted by Sri Paresh Tripathi, the learned Additional Chief Standing Counsel for the State of Uttarakhand.
(2.) LEARNED Addl. C.S.C. for the State/respondent nos.1, 2 and 3 is allowed four weeks' time to file counter affidavit. Thereafter, three weeks' time is allowed to the petitioners to file rejoinder affidavit. List this matter for admission and final disposal immediately after the expiry of the aforesaid period. The petitioner no.1 is a Public Limited Company and is engaged in the manufacture of pulp and paper. For the manufacture of pulp and paper, timber is the essential raw material, which is transported in the State of Uttarakhand by petitioner nos.2 to 8, on behalf of the petitioner no.1. These petitioners are questioning the validity and legality of Rule 5 (i) of The Uttarakhand Transit of Timber and Other Forest Produce Rules, 2012, by which, transit fee on forest produce, being brought in the State of Uttarakhand, has been levied @ Rs.50/- per tonne per lorry. Prior to the enforcement of the aforesaid Rules, the levy was being charged @ Rs.5/- under The U.P. Transit of Timber and Other Forest Produce Rules, 1978. It transpires that under the Rules of 1978, transit fee @ Rs.5/- was increased to Rs.38/-, which led to the filing of various petitions. During the pendency of the writ petitions, Rule 5 of the Rules of 1978 was amended, which resulted in the increase of the levy fee from Rs.38/- to Rs.75/- to Rs.100/-, etc. and then it was per cubic meter and subsequently it was amended to be charged on the basis of ad valorem, ranging from 5% to 15% per lorry. All these amendments were questioned before the Allahabad High Court in various petitions, which was ultimately decided by a judgment dated 11.11.2011, whereby the increase of transit fee @ Rs.38/- was held to be valid, leaving it open to the Forest Department to recover transit fee @ 38/- per tonne per lorry. The petitioners as well as the Forest Department, not being satisfied with the judgment of the Allahabad High Court, filed various special leave petitions before the Supreme Court, which were entertained and interim orders were passed, staying the recovery of transit fee. These orders are continuing till date. Pursuant to the orders of the Supreme Court, various Benches of the Allahabad High Court are also passing similar orders. The U.P. Rules of 1978 was being followed by the State of Uttarakhand, but now these Rules of 1978 has been substituted by the Rules of 2012. According to the learned counsel for the petitioners, the Rules of 2012 are pari materia to the Rules of 1978 except for the rate of transit fee and, consequently, in this regard, the learned counsel for the petitioners laid emphasis that similar orders, as passed by the Supreme Court of India, should also be passed by this Court.
(3.) ON the other hand, the learned Advocate General for the State of Uttarakhand submitted that the State of Uttarakhand has the power and the competence to frame its own Rules, which Rules have been framed. The competence of the Rules of 1978 has been upheld by the Supreme Court. The State has the power to enhance the fee. The fee of Rs.5/-, which was being charged from 1978, is now, if inflation is to be considered, goes up to Rs.200/- and, therefore, the demand of Rs.50/- as transit fee is very reasonable. Considering the aforesaid facts, since the validity of the Rules have been questioned and the same has been struck down by the Allahabad High Court, which matter is now pending consideration before the Supreme Court of India, the Court is of the opinion that the petitioners are also entitled for a similar relief, subject to certain modifications, since the Court is of the opinion that the State Government cannot run on stay orders and certain amount of revenue is required to be generated by the State Government in order to survive. Considering the aforesaid, the Court is of the opinion that the petitioner will pay a sum of Rs.15/- per tonne per lorry as transit fee, during the pendency of the writ petition, for the forest produce brought inside the State of Uttarakhand. For the balance amount, the petitioners including their agents and transporters will give an undertaking before the Forest Department to the effect, that in the event, the writ petition is dismissed, they would be liable to pay the balance amount within three months from the date of judgment. On the other hand, the Court directs the Forest Department to issue the transit pass on the basis of the aforesaid and, will also keep a record of the movement of the forest produce, namely, the details of the forest produce, the quantity, the value, the name of the consigner and consignee, place of origin, destination, vehicles numbers, etc. Such record will be maintained by the Forest Department and will be countersigned by the petitioners at the time of the issuance of the transit fee.;

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