R.P. Misra, Umeshwar Pandey, JJ. - (1.) HEARD Sri Shashi Nandan, learned Sr. Advocate assisted by Sri Madan Lal Srivastava for the petitioner and Sri C.B. Yadav, learned Chief Standing Counsel for the respondents.
(2.) THE petitioner has come to the court seeking relief for issue of writ in the nature of certiorari quashing the order dated 14.11.2006 (Annexure -10) passed by the respondent No. 2 and also for a writ in the nature of mandamus restraining the respondents from realising any transit fee from the petitioner on the basis of the aforesaid impugned order. The short admitted facts in the present matter are that the petitioner had earlier approached this Court in writ petition No. 24911 of 2004 seeking relief for issue of writ in the nature of mandamus restraining the respondents from realising the transit fee from it while lifting and transporting the stone chips, stone grids and boulders from the mining site to different destinations. In the judgment (Annexure -7 of this writ petition) the Division Bench had though dismissed the petition itself but it had left open to the petitioner to move an application before the authority concerned to prove that the goods, which were being transported by the petitioner, do not pass through forest land as to make it not liable for payment of transit fee in that regard. In pursuance to the aforesaid direction of the court, a representation was made to the forest department and by the impugned order (Annexure -10) the respondents rejected the same holding that the goods are 'forest produce' and in the light of the judgment of this Court in writ petition No. 975 of 2004 Kumar Stone Works and Ors. v. State of U.P. and Ors. it is liable for being levied and charged with transit fee under the rules. It is however, also not disputed that in the earlier judgment delivered by the learned Single Judge in writ petition No. 29546 of 2003, Ved Prakash Garg v. Additional District Judge, it is held that the land in question over which the present petitioner is carrying out the mining work, cannot be treated as land belonging to the forest department as the same was admitted by the Principal Secretary (Forest) in his affidavit given in that case stating 'that in view of decision taken in the meeting dated 6 December, 2004...it has been resolved that the land in question should be treated as the land belonging to the Revenue department of the State Government. The mining operation thereon should be permitted as earlier'. In the petition of Ved Prakash Garg, there was another controversy relating to the permission to be given to the petitioner for mining operation over the land of plot No. 7536 Gha of village Billi Markundi. It is also admitted that the land over which the petitioner passes while carrying its goods to different destinations was though decided by the State Government for its constitution as reserved forest under Section 4 of the Forest Act (hereinafter referred to as the 'Act') but the declaration of the total area of such land as reserved forest, as provided under Section 20 of the Act, has not yet been done. Therefore, the only controversy which now remains for decision in the present petition is, therefore, whether the land from which the petitioner's vehicles pass carrying the goods taken out in the mining operation is the land of forest reserve or not?
(3.) IT has been contended by Sri Shashi Nandan, learned Sr. Advocate, that since the gitti and boulders, which are taken out from the land under the mining operation when not carried through the forest reserve land and the vehicles carrying boulders etc. do not pass through such land, there is absolutely no justification for imposing or levying any transit fee for carriage of goods by the respondents in its impugned order.;