R.K. Agrawal, J. - (1.) In this is batch of writ petitions, the petitioners have challenged the realisation of transit fee on transport of stone chips, stone grit, stone ballast, sand, morrum, coal, lime stone, dolomite etc., which they transport within the State of U.P. and sell to different purchasers. The petitioners have also challenged the validity of the notification dated 14.6.2004 issued by the Government of Uttar Pradesh amending the U.P. (Transport of Timber and other Forest Produce) Rules, 1978 (hereinafter referred to as "the Rules").
(2.) Civil Misc. Writ Petition No. 975 of 2004 is being treated as the leading petition. Briefly stated, the facts of the aforementioned petition are as follows:According to the petitioners, they have been- granted mining lease by the District Magistrate, Sonebhadra, for excavation of boulders, rocks, sand and morrum in the district of Sonebhadra from the plots situated on the land owned by the State Government which do not come within any forest area. 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 Division Obra, district Sonebhadra, on behalf of the respondents 1 to 6, it has been stated that the petitioners are procuring the grit, boulder etc. from the land of village Billi Markundi notified under Section 4 of the Indian Forest Act, 1927 (hereinafter referred to as "the Act"). They are carrying out mining operations in the forest land. It has also been stated that the petitioners of Civil Misc. Writ Petition No. 28290 of 2004 are procuring river sand of river Son from the land village Patwah/Chopan and Sasnai notified under Section 4 of the Act. In respect of the writ petitions of the district of Sonebhadra, it has been stated that the notification under Section 4 of the Act was issued in the year 1969-70 and forest settlement process started, However, during the course of the settlement, the Hon'ble Supreme Court in the case of Vanwasi Sewa Ashram's case, vide judgment dated 20.11.1986, directed the forest authorities to decide the legitimate rights of Adiwasis and Girijan living in south of Kaimur hills on their ancestral land holdings. The petitioners have been granted mining leases/permits by the District Magistrate and after the promulgation of the Forest Conservation Act, 1980, the Forest Department strongly opposed the mining operation and the permits were stopped. One Dharmendra Kumar Singh holding a mining lease in village Billi Markundi, filed Civil Misc. Writ Petition No. 1126 of 2004 in which it was held that the Forest Conservation Act, 1980 was not applicable to the area notified under Section 4 of the Act. The State of U.P., feeling aggrieved, filed Civil Appeal No 4956 of 1989 before the Apex Court and the Apex Court, vide judgment and order dated 11.10.1989, had set aside the order passed by this Court. It has held that the Forest Conservation Act, 1980 is applicable and the application for mining permit is to be decided in the light of the provision of the said Act. Subsequently, the Court of me Forest Settlement Officer/Additional District Judge decided the cases holding the land of the area belonging to the State Government without noticing the fact that these lands were notified under Section 4 of the Act. Consequently, a review application was filed by the Forest Department in the Court of the Forest Settlement Officer/Additional District Judge, Anpara, stationed at Obra,, district Sonebhadra and vide judgment and order dated 31.5.2003 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 validity was challenged before this Court. The matter ultimately went up to the Apex Court and in the case of State of U.P. v. Sitapur Packing Wood Suppliers, JT 2002 (4) SC 341 the Apex Court has held the levy of transit fee. Since 1978 the transit fee @ Rs. 5/- per tonne remained the same till the amendment carried out in the year 2004, i.e., after more than 25 years, whereby the transit fee has been increased to Rs. 38/- per tonne.;