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Uttarakhand High Court · body

2014 DIGILAW 243 (UTT)

Jaiprakash Associates v. Tehri Hydro Development

2014-05-29

ALOK SINGH

body2014
Judgment Alok Singh, J. In Village Asena, Tehsil Ghanshali, District Tehri Garhwal land was proposed to be leased out in favour of T.H.D.C. for taking out sand, mines and minerals therefrom for the construction of Tehri Dam. State of U.P. vide Government Order No. 135/14-03-83 dated 13th January, 1983, annexure No.S.C.A.-4 of the supplementary counter affidavit filed by respondent Nos. 2 and 3, issued directions to the effect that to transfer any land in the hill area of State of U.P., other than forest land, permission is also required to be taken from the Government of India under Section 2 of the Forest Conservation Act, 1980. In other words, scope of Section 2 of the Act was extended to the land belonging to the State or Panchayat, situated in the hilly areas of the State other than forest land. 2. Undisputedly, permission was sought under Section 2 of the Act from the Central Government to transfer the land of Village Asena by way of lease for five years for mining purpose to the T.H.D.C. Government of India, Ministry of Environment and Forest, vide order dated 4th February, 2002, annexure No.SCA-1 of the supplementary counter affidavit of respondent Nos. 2 and 3 was pleased to accord approval / permission to the then State of U.P. to grant of mining lease in favour of the T.H.D.C. T.H.D.C. having obtained the mining lease from the State of U.P., granted contract to the petitioner to undertake mining activities on the land leased out to T.H.D.C. and to transport the sand, mines and mineral at the site of the construction of Tehri Dam. Meanwhile, Forest Department decided to recover transit fee for transporting the sand, mines and minerals from the mining site to the dam site. Feeling aggrieved, petitioner preferred Suit, being O.S. No. 20 of 2003, in the Court of District Judge, Tehri Garhwal alongwith ad-interim injunction application restraining the Forest Department from recovering the transit fee from the petitioner. However, application seeking ad-interim injunction was rejected by the Trial Judge. Plaintiff/petitioner, herein, thereafter filed A.O. No. 330 of 2003 before this Court wherein Division Bench of this Court passed order on 23.10.2003 which reads as under:- “Being aggrieved by refusal of interim relief by the District Judge, Tehri Garhwal, the appellant has filed this appeal against the order dated 30.09.2003. Appellant is the contractor of Tehri Dam Construction Corporation. Plaintiff/petitioner, herein, thereafter filed A.O. No. 330 of 2003 before this Court wherein Division Bench of this Court passed order on 23.10.2003 which reads as under:- “Being aggrieved by refusal of interim relief by the District Judge, Tehri Garhwal, the appellant has filed this appeal against the order dated 30.09.2003. Appellant is the contractor of Tehri Dam Construction Corporation. Appellant has alleged that D.F.O. wrongly arrested his trucks on the ground of non-payment of transit fees. Appellant submits that appellant was not liable to pay the said fees as he had removed and carried the material from Asena Quarry which was not a forest. That it was a Banjar. On the above basis, appellant instituted the suit in which the impugned order was passed. In the interest of justice and to put an end to the controversy expeditiously the following order is passed; as we do not have any basis as to why D.F.O. has stopped the truck. Accordingly, we direct the D.F.O. to issue Show Cause Notice to the appellant within two weeks from the date of communication of this order to which appellant would reply within one week thereafter. On receipt of the reply the D.F.O. will decide the matter in accordance with law within three weeks from the receipt of the reply from the appellant. In the meantime, we do not want further trucks to be detained till final orders are passed in the above enquiry by the D.F.O. because it would delay the work of construction undertaken by Tehri Dam. However, to secure the revenue, we direct the contractor to deposit Rs.75,000/- within two weeks from today with the D.F.O. and give bank guarantee for Rs. 75,000/- in favour of the concerned D.F.O. within two weeks from today. On deposit of Rs. 75,000/- and bank guarantee truck to be released. The D.F.O. will also maintain an account of number of trucks and material therein during the period of enquiry. In view of the above order, appellant undertakes to withdraw the pending suit. Appeal stands disposed of, accordingly. No costs.” 3. Suit was ultimately withdrawn pursuant to the undertaking furnished before the Division Bench of this Court in A.O. No. 330 of 2003 and matter was referred for decision to the Divisional Forest officer. In view of the above order, appellant undertakes to withdraw the pending suit. Appeal stands disposed of, accordingly. No costs.” 3. Suit was ultimately withdrawn pursuant to the undertaking furnished before the Division Bench of this Court in A.O. No. 330 of 2003 and matter was referred for decision to the Divisional Forest officer. Learned Divisional Forest Officer, vide order dated 08.12.2003, was pleased to reject the submissions of the petitioner and was further pleased to hold that petitioner is liable to pay transit fee as asked by the Forest Department. Feeling aggrieved, petitioner preferred present writ petition before this Court. 4. I have heard Mr. V.K. Kohli, learned Senior Counsel assisted by Mr. Kanti Ram Sharma, Advocate for the petitioner and Mr. B.D. Kandpal, Deputy Advocate General assisted by Mr. R.C. Arya, Standing Counsel for respondent Nos. 2 to 4 and Mr. Shobhit Saharia, Advocate for respondent No.1 and have carefully perused the record. 5. Section 2 (4) of the Indian Forest Act defines the “forest produce”, which reads as under:- ““forest produce” includes – (a) the following whether found in, or brought from, a forest or not, that is to say – timber, charcoal, caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds, kuth and myrobalans, and (b) the following when found in, or brought from a forest, that is to say- (i) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees, (ii) plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of such plants, (iii) wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax, and all other parts or produce of animals, and (iv) peat, surface oil, rock and mineral (including lime-stone, laterite, mineral oils, and all products of mines or quarries); (4-A) "owner" includes a Court of Wards in respect of property under the superintendence or charge of such Court;” 6. Having read sub-section (4) of Section 2 of the Indian Forest Act, I have absolutely no hesitation to hold that timber, charcoal, caoutchouc, catechu, wood-oil, resin, natural varnish, bark, lac, mahua flowers, mahua seeds, kuth and myrobalans, shall always be treated as forest produce, irrespective of the fact that these products were found in and brought from any forest area or not. While the products as mentioned in sub-section (b) of sub-section (4) of Section 2 of the Act, if found in, or brought from the forest area then only shall be treated as forest produce. In other words, material mentioned in sub-section (b) of sub-section (4) of Section 2 of the Act, if found beyond the forest area and not brought from the forest area, shall not be treated as forest produce. 7. Undisputedly, State Government is competent to levy and recover the transit fee on the forest produce. 8. Let me now examine as to whether State is competent to levy and recover the transit fee for excavation of sand, mines and minerals from the leased out area and for transporting the same to the Tehri Dam site ? 9. As per the definition given in sub-section (b) of sub-section (4) of Section 2 of the Act, sand, mines and minerals shall be called as forest produce only when same are found in and brought from the forest area. 10. In view of the above, the next question arises as to whether leased out area to the T.H.D.C. of village Asena, District Tehri Garhwal is a forest area or not ? 11. Perusal of the extract of khatuni issued by the Revenue Department, annexure No.7 to the writ petition, would reveal that nature and classification of the land of khasara numbers mentioned therein is recorded as Varg - 9 [3 (M)]. 12. Undisputedly, this land was never recorded as forest land nor was ever declared as reserved forest under Section 4 of the Act or as protected forest under Section 29 of the Forest Act. 13. Let me now examine as to what would be the meaning of Varg – 9 [3 (M)] as mentioned in the revenue record. 14. As per the report of the District Magistrate dated 8th October, 2004 and enclosure thereof, annexure No.SCA-3 of the supplementary counter affidavit of respondent Nos. 2 and 3, Varg-9 [3 (M)] would mean “fit for agriculture, however, laying as barren (banjar) land”. 15. As per the definition given in U.P. Land Record Manual, Barren (Banjar) land means; Agricultural land, however, is not being used for agriculture, horticulture or animal husbandry for quite long time and is laying as barren (banjar) on the spot. 16. 2 and 3, Varg-9 [3 (M)] would mean “fit for agriculture, however, laying as barren (banjar) land”. 15. As per the definition given in U.P. Land Record Manual, Barren (Banjar) land means; Agricultural land, however, is not being used for agriculture, horticulture or animal husbandry for quite long time and is laying as barren (banjar) on the spot. 16. In view of the above, in my considered opinion, the leased out land was although agricultural land but was not being used for the agricultural purposes for quite long time and was laying barren on the spot belonging to the State of U.P.. 17. Mr. B.D. Kandpal, learned Deputy Advocate General, while referring Section 20-A of the Act, vehemently argued that if any land was recognized or declared as the reserved forest by the Ruler of the particular Estate before the merger, shall be deemed to be a reserved forest even after the merger of that Estate. 18. Perusal of annexure No.8 to the counter affidavit of respondent No.3 would only reveal that the then Ruler of Tehri Garhwal declared that there would be Band and Awval Jungle (closed and superior types of forest) within the four corner of Minars (pillars) and there would be Soyam Jungle (inferior type of forest) beyond the boundaries of Minars (Pillars) under the management of Patti Panchayat. Undisputeldy, as per the common local understanding, Soyam Jungle (inferior type of forest) means, land full of different bushes and grass. 19. Let me now examine as to whether the only land within the boundaries of Minar/Pillar should be deemed as reserved forest or land commonly known as inferior type of forest (SOYAM JUNGLE) beyond the boundaries of Minars/pillars under the management and control of Patti Panchayat could also be deemed as reserved forest by invoking Section 20-A of the Act ? 20. To understand the definition of “reserved forest” let me now look into Section 4 of the Forest Act, which says that the State Government by notification may declare any area as reserved forest describing its limits and location. Meaning thereby, a forest, of which boundaries are described or, in other words, the area within particular boundaries may be declared as reserved forest. Meaning thereby, a forest, of which boundaries are described or, in other words, the area within particular boundaries may be declared as reserved forest. Meaning thereby, the area declared by the erstwhile Ruler of Tehri Garhwal, called as Band, Awval Jungle (closed and superior forest) within the four corners of the Minar/Pillar, can only be deemed as reserved forest by invoking Section 20-A of the Act and land beyond the boundaries of Minars (pillars) commonly known as Soyam Jungle, under the management and control of Patti Panchayat cannot be deemed as Reserved Forest. 21. Undisputedly, area of lease is situated in village Asena outside the boundaries of the Minar /Pillars, therefore, same cannot be deemed as Reserved Forest. Nor same was ever recorded as Forest in the Revenue Record. 22. In view of the above discussion, since mining was done outside the forest area in village Asena and products were brought from the mining area, which was not the forest area, therefore, as per the definition provided under sub-section (b) of sub-section (4) of Section 2 of the Forest Act, material so excavated, collected and transported to the Tehri Dam site cannot be called as forest produce. Consequently, no transit fee can be levied and recovered for transportation of such sand, mines and mineral, not amounting to forest produce. 23. Thus, writ petition succeeds and is allowed. Impugned orders are hereby quashed. It is held that State of Uttarakhand or its Forest Department is not competent to levy and recover the transit fee from the petitioner or its master THDC for sand, mines and minerals transported from the leased out site of village Asena to Tehri Dam site for construction of Tehri Dam. 24. Amount, paid or deposited towards the transit fee (from the mining site of village Asena to the Tehri Dam Site) under the interim directions of this Court or under the arrangement with the Forest Department, shall be refunded to the petitioner within eight weeks. 25. In the peculiar facts and circumstances of the case, no order as to costs.