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2013 DIGILAW 1242 (SC)

KANHAIYA SINGH v. STATE OF U. P.

2013-10-29

T.S.THAKUR, VIKRAMAJIT SEN

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ORDER : 1. Learned counsel for the parties agree that the matters could be listed for final hearing in the month of February, 2014. They also undertake to complete the pleadings by that time. 2. List for final hearing in the month of February, 2014. 3. Mr. Rakesh Dwivedi, learned senior counsel for the State of U.P. has drawn our attention to the interim orders passed by this Court in these matters from time to time. He submits that there are essentially two category of cases that have arisen from the State of U.P. The first batch according to Mr. Dwivedi arises out of a judgment dated 27.04.2005 in Writ Petition No. 975 of 2004 by which a Division Bench of the High Court of Allahabad has upheld the constitutional validity of the 3rd amendment to U.P. Transit of Timber and other Forest Produce Rules, 1978. By that amendment, the State Government had enhanced the transit fee payable on transit of forest produce from Rs. 5/- to Rs. 38/- per ton of capacity per lorry. Mr. Dwivedi points out that the SLPs comprising the first batch of cases challenge the correctness of the order passed by the High Court and have been filed by the writ petitioners who failed before the High Court and who are engaged in transportation of forest produce from within and outside the State of U.P. 4. The second batch of cases arises out of another order dated 11.11.2011 by which a Division Bench of the High Court of Allahabad has struck down the 4th and 5th amendment to the Rules aforementioned. By the 4th amendment the State Government had enhanced the transit fee from Rs. 38/- to Rs. 200/75 per cubic meter capacity per lorry. By the 5th amendment, the said fee was further enhanced from 5% to 15% ad valorem on the value of the forest produce for transportation. Mr. Dwivedi submits that the appeals comprising the 2nd batch have been preferred against the said judgment in which the State has applied for an ad-interim stay of the operation of the judgment. No orders on the said application have however been passed by this Court. Mr. Dwivedi submits that the appeals comprising the 2nd batch have been preferred against the said judgment in which the State has applied for an ad-interim stay of the operation of the judgment. No orders on the said application have however been passed by this Court. Several appeals arising out of the said judgment have also been filed by the private parties to the extent, the judgment of the High Court permits recovery of transit fee in terms of 3rd amendment at the rate of Rs. 38/- per ton of capacity per lorry. 5. A perusal of the orders passed by this Court from time to time in all these cases shows that there are three different kinds of orders that have been made. There are cases in which this Court has not passed any interim order in the appeals filed whether by the State or by the private parties. The second category comprises cases in which this Court has directed the recovery of transit fee from the parties concerned to remain subject to the outcome of the petitions. The third category of cases comprises petitions in which this Court has granted unconditional stay against the recovery of transit fee from the parties concerned. Mr. Dwivedi submits that not only because this Court has passed different orders that need to be made uniform but also because of the financial implications, this court ought to pass orders that would serve the ends of justice and make an equitable arrangements avoiding further litigation in the matter. 6. He submits that while payments made to the State could always be refunded to those who make such payments it will be difficult for the State to recover the amount due from the parties concerned on account of the interim stay granted by this Court. He urged that this Court could direct vacation of the interim order where the same have been issued and permit the State to make recoveries at the rate stipulated by the Notification comprising the 4th and 5th amendment except where the material is exempted or where the material is an industrial byproduct like fly ash and klinker. He urged that this Court could direct vacation of the interim order where the same have been issued and permit the State to make recoveries at the rate stipulated by the Notification comprising the 4th and 5th amendment except where the material is exempted or where the material is an industrial byproduct like fly ash and klinker. Insofar as the rates are concerned he urged that the State was entitled to recover transit fee at the rate stipulated in the 3rd amendment which has since been upheld by the High Court in terms of its judgment impugned in the 1st batch of cases. He submitted that interest of the private parties could be sufficiently protected by this Court directing that in the event of private parties succeeding in these proceedings the amount deposited/paid by them shall be refunded to them with interest @ 9% p.a. from the date of the deposit till the actual refund. 7. Learned counsel appearing for the private parties on the other hand submitted that substantial questions of law arise for determination especially those touching the constitutional validity of the amendments and the Rules on the subject. It was contended that since the orders passed by this Court have remained in force for the past six years or so there is room for vacating or modifying the same. It was submitted that now that the writ petitions are being listed for final hearing in the month of February, 2014, the question of modification of the interim orders could be deferred till the matters came up for hearing. 8. We have given our anxious consideration to the submissions made at the Bar. It is true that the matters are now being listed for final hearing in the month of February, 2014, but it is equally true that the arrangements already made do not present a uniform and consistent picture even though the controversy involved is more or less the same in all these cases. 9. In some petitions, there is no interim order as noticed by us earlier. In some others the direction is that the party concerned would pay but any such payment would remain subject to the outcome of these SLPs. In the 3rd category of cases the recoveries have been stayed unconditionally. We see no justification for continuance of such varying arrangements having regard to the totality of the circumstances. In some others the direction is that the party concerned would pay but any such payment would remain subject to the outcome of these SLPs. In the 3rd category of cases the recoveries have been stayed unconditionally. We see no justification for continuance of such varying arrangements having regard to the totality of the circumstances. We are, therefore, inclined to modify the orders suitably and the following effect: (1) The State shall be free to recover transit fee for forest produce removed from within the State of U.P. at the rate stipulated in the 3rd amendment to the Rules mentioned in the earlier part of this order. (2) Any such recovery shall remain subject to the ultimate outcome of present petitions pending in this Court. (3) In the event of writ petitioners/private parties succeeding in their cases, the amount deposited/recovered from them shall be refunded to them with interest at the rate of 9% p.a. from the date the deposit was made till actual refund. (4) The State shall maintain accurate amount of recovery made and the nature and the quantum/quantity of the produce removed by the private parties concerned. (5) Even in the 2nd batch of cases arising out of Writ Petition No. 975 of 2004 whereby the High Court has struck down the 4th and 5th amendment to the Rules, the State shall be free to make recoveries in terms of the 3rd amendment in regard to the forest produce removed from within the State of U.P. The operation of the orders passed by the High Court shall to that extent remain stayed. (6) This modification shall not apply to exempted goods or industrial by products like Klinker and fly ash. 10. List SLP(C) No. 19445 of 2004, SLP(C) No. 24889 of 2004, SLP(C) No. 23547 of 2005, SLP(C) No. 24106 of 2007, SLP(C) No. 21868 of 2010, SLP(C) No. 22363 of 2010, SLP(C) No. 12318 of 2009, SLP(C) No. 12530 of 2009, SLP(C) No. 21930 of 2009, SLP(C) No. 26825 of 2011, SLP(C) No. 18094 of 2011, Civil Appeal No. 1007 of 2011, Civil Appeal No. 2047 of 2006, SLP(C) No. 2294 of 2008, SLP(C) No. 11846 of 2009 and SLP(C) No. 33180 of 2010 (relating to State of Uttarakhand) on 12.11.2013.