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2015 DIGILAW 2909 (ALL)

ANIL KUMAR PANDEY v. STATE OF U. P.

2015-09-16

ARUN TANDON, ASHWANI KUMAR MISHRA

body2015
JUDGMENT By the Court.—This writ petition has been filed by the petitioner, who claims to have been granted lease for mining of minor minerals by the concerned district officer. 2. The petitioner is aggrieved by the order of the District Magistrate, whereunder he has been called upon to deposit the transit fee in respect of the minor minerals which have been excavated at a particular place and have been thereafter transported through reserved forest. Such transit fee has been demanded under the U.P. Transit of Timber and other Forest Produce Rules, 1978 (hereinafter referred to as ‘1978 Rules’). 3. According to the petitioner, the liability for deposit of the transit fee is upon the person transporting the minor minerals. Petitioner claims that he had supplied the minor minerals to various persons at the mining site. The forest department is not justified in raising the demand of transit fee upon the petitioners only with reference to various Form MM-11 issued to the petitioners, which is necessarily required for transportation of the minor minerals from mines to the place of consumption/storage under the Minor Minerals Rules, 1963. 4. The petitioner has referred to the judgment of the Division Bench of High Court Lucknow Bench, Lucknow, passed in a bunch of writ petitions, leading being Writ Petition No. 12659 of 2014 (Suresh Kumar Mishra v. State of U.P. and others), decided on 20.3.2015. In the said Division Bench judgment it has been held that the responsibility to issue the transit pass in Form-A under Rule 3 of 1978 Rules is not upon the leaseholder, and therefore, they are not liable to pay the transit fee. Further the transit fee is liable to be paid by the person who transports the minor minerals from the mining area through the forest and not upon the leaseholder. 5. Counsel for the State disputes the correctness of the judgment of the Division Bench in the case of Suresh Kumar Mishra (supra). It is his case that from a simple reading of Rule 3, which is the charging section, no forest produce can be moved into or from the forest area except alongwith a transit pass in Form-A being issued by the competent authority. It is his case that from a simple reading of Rule 3, which is the charging section, no forest produce can be moved into or from the forest area except alongwith a transit pass in Form-A being issued by the competent authority. Since in the facts of the case mining of the minor minerals, which answers the description of forest produce, by the petitioner is admitted and further since it is admitted that these forest produce have been transported through forest area without any transit pass having been issued, the petitioner cannot evade the liability of payment of transit fee, more so, when he has failed to disclose the identity of the persons, who had actually transported the said minor minerals after obtaining the same from the petitioner at the mining site. 6. He submits that the Division Bench in the case of Suresh Kumar Mishra (supra) has failed to examine that the collection of the transit fee by putting of a barrier is only a method of collection and not the source for quantification of the liability. The method of collection will not defeat the right of the State Government to determine the liability and to recover the same. 7. It is then stated that the Division Bench has also failed to take into notice that once pass in Form MM-11 has been issued to the leaseholders, and they admit transportation of the minor mineral through forest area, a further corresponding obligation is cast upon them to demonstrate as to who had actually transported these minor mineral under Form MM-11. Since the petitioner has failed to discharge the said part of the obligation, the State is justified in calling upon the petitioner to deposit the transit fee in respect of the quantity of the forest produce covered by Form MM-11, as it is to be presumed under law that the minor mineral has been transported by the leaseholder himself. 8. Standing Counsel also refers to Column 7 of Form MM-11, which specifically requires disclosure of the details of the person alongwith address, who is incharge of the consignment of the minor minerals during transportation. 9. It is, therefore, submitted that the judgment and order of the Division Bench needs to be referred to a Larger Bench. 10. 8. Standing Counsel also refers to Column 7 of Form MM-11, which specifically requires disclosure of the details of the person alongwith address, who is incharge of the consignment of the minor minerals during transportation. 9. It is, therefore, submitted that the judgment and order of the Division Bench needs to be referred to a Larger Bench. 10. We further find that in the Writ Petition No. 4187 of 2008 (M/s Nagarjuna Construction Company Limited v. State of Uttar Pradesh and others), a reference has already been made by a Division Bench of this Court on 4.3.2008, regarding interpretation of the words “brought from” as used in Section 2(4)(b) of the Indian Forest Act, 1927. The Division Bench has found it difficult to accept the view expressed in the case of Kumar Stone Works and others v. State of U.P. and others, 2005 (3) AWC 2177 . 11. We have heard learned counsel for the parties and have gone through the records of the writ petition. Without entering into the factual issues raised as to whether the minor mineral has actually passed through forest area or not, following questions needs to be examined by a Larger Bench of this Court : “(a) Whether the petitioner, who is holder of lease and has necessarily to transport the minor minerals after excavation under a pass in form MM-11, is duty bound to disclose the person in whose custody the minor minerals are handed over for transportation at the mining site, in the relevant column of the form, in absence thereof the transportation has to be presumed to have been done by the person excavating the minor minerals himself i.e. the leaseholder? (b) Whether the Division Bench in the case of Suresh Kumar Mishra (supra) has lost sight of the mandatory requirement of the disclosure of the person, in whose favour the consignment is given at the mining site for purpose of transportation, as required under form MM-11 and its effect on levy of transit fee? (c) Whether the transit fee is attracted upon the movement of the consignment, through the forest area, and it is the liability of the person in custody of minor minerals, irrespective of the installation of barriers which is only a method of collection? (c) Whether the transit fee is attracted upon the movement of the consignment, through the forest area, and it is the liability of the person in custody of minor minerals, irrespective of the installation of barriers which is only a method of collection? (d) Can the petitioner avoid payment of transit fee merely by stating that the consignment had been transported by somebody else without disclosing the identity of such transporter? (e) Whether the judgment and order of the Division Bench of this Court lays down the correct law?” 12. Let the matter be placed before Hon’ble the Chief Justice for constituting a Larger Bench to answer the aforesaid questions inasmuch as large number of petitions involving similar and identical questions, are pending consideration before this Court.