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2016 DIGILAW 3798 (ALL)

ASSAM NORTH BENGAL ROADWAYS v. STATE OF U. P.

2016-11-25

ARUN TANDON, SANGEETA CHANDRA

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JUDGMENT By the Court.—This writ petition has been filed for seeking a writ of mandamus directing the respondents not to recover/charge any amount in the name of “Registration Fee” from each truck transporting the Coal, Coke, Bamboo, Timber, Broom and Bamboo mats brought by the petitioner from outside the State of U.P. to the State of U.P. and further for a mandamus directing the respondents to refund the amount, which has been so collected from the petitioner in the name of “Registration Fee”. 2. Learned counsel for the petitioner has relied upon the judgment of Division Bench of this Court in the case of M/s Akanksha Enterprises v. State of U.P. and others, decided on 8.12.2011, for the purpose that no registration fee is contemplated under the Indian Forest Act, 1927 and U.P. Transit of Timber and other Forest Produce Rules, 1978. He has specifically referred to the following paragraphs: “The Indian Forest Act, 1927 and the U.P. Transit of Timber and other Forest Produce Rules, 1978 thus provide for registration of only marks of timber and foreign pass. There is no requirement for the registration of any dealer, who imports the forest produce in the State of U.P. The transit pass is required to be issued under the Rules of 1978 for movement of the forest produce in the State of U.P. whether imported from outside State of U.P., moved inside the State of U.P. or exported to outside the U.P.. In NTPC Limited and another v. State of U.P. and others, Writ Tax No. 327 of 2008, decided on 11.11.2011 the Court considered almost all the aspects of the applicability of the Rules. The question of registration under the Rules for the movement of forest produce within the State of U.P.. In the present case the petitioners are bringing coal from the collieries of Coal India Limited purchased by E-auction. They also purchase coal from the traders of Jharkhand, Bihar and Assam. There is no provision under the Indian Forest Act, 1927, and the Rules of 1978 for registration of any dealer. There is only a provision of registration of marks for issuance of foreign passes. The petitioners are not the importer of coal from outside the India nor exports the coal within the country to outside India.” 3. There is no provision under the Indian Forest Act, 1927, and the Rules of 1978 for registration of any dealer. There is only a provision of registration of marks for issuance of foreign passes. The petitioners are not the importer of coal from outside the India nor exports the coal within the country to outside India.” 3. At the very outset, we record that the Division Bench of this Court in the case of M/s Akanksha Enterprises v. State of U.P. and others, was dealing with transportation of coal and therefore any observations made in the said judgment have to be confined to the issue, which had come up for consideration before the Division Bench of this Court. 4. We, as a matter of fact, find that in exercise of powers under Sections 41, 42, 51 and 76 of the Indian Forest Act, 1927, State of U.P. has framed U.P. Transit of Timber and other Forest Produce Rules, 1978, (herein-after referred to as “Rule 1978”). Vires of these Rules was upheld in the case of State of U.P. v. Sitapur Packing Wood Suppliers and others, JT 2002 (4) SC 341 which was also followed in the case of NTPC Limited and another v. State of U.P. and others, 2011(11) ADJ 390 . 5. We may record that under Chapter VII of the Indian Forest Act, 1927, Section 41 confers the power upon the State to make Rules to regulate transit of forest produce. That Timber is a forest produce, is not in dispute. 6. We further find that under rule 18 of the Rules, 1978, a provision has been made for registration of the property marks, which reads as follows: “18. Registration of property marks.— (1) Any person may apply to the Divisional Forest Officer to have property mark to be attached to timber belonging to him, registered in the office of the Divisional Forest Officer of the Division from which it is sought to transport his timber under these rules. (2) Every property mark shall consist of a device to be approved by the Divisional Forest Officer for his Division, provided that no person shall be allowed to register a mark identical with, or liable to be mistaken for one already registered by another person or used by the State Government. (2) Every property mark shall consist of a device to be approved by the Divisional Forest Officer for his Division, provided that no person shall be allowed to register a mark identical with, or liable to be mistaken for one already registered by another person or used by the State Government. In case of dispute as to whether the marks proposed for registration has or has not too close in resemblance with any other previously registered property mark, the decision of the Conservator of Forests shall be final. (3) Registration fee [Section 41(2)(i)].—A fee of seventy five rupees shall be chargeable for each registration. A receipt shall be given in respect of the payment of the fee in the Form given in Schedule-‘C’. (4) A certificate of registration showing the device shall be given by the Divisional Forest Officer to each person registering his mark. The registration shall remain valid upto 30th September next following.” 7. Rule 18(3) provides for a fee of Rs. 75/- shall be chargeable for each registration. A receipt is to be given as provided under Schedule-C of the Rules for the purpose and on production, certificate of the registration shall be issued by the Divisional Forest Officer to each person registering his mark. The registration is to remain valid upto 30th September next following. It therefore, logically follows that the person desirous of bringing forest Timber within State of U.P. has to apply for registration of his property marks before the Divisional Forest Officer, under which he proposes to transfer his timber as per rules. It is further clear that a fee of Rs. 75/- per mark is payable and receipt is issued as per Schedule-C by the Divisional Forest Officer in favour of the person registering his mark. It is, therefore, necessary that a person must make an application for registration of his mark before the Divisional Forest Officer if he proposes to transport timber which includes the timber brought from outside the State of U.P. as well as that produced within the State of U.P. 8. We are, therefore, of the opinion that the demand of registration fee by the respondents-Officer is well protected under Rule 18 of the Act. We are, therefore, of the opinion that the demand of registration fee by the respondents-Officer is well protected under Rule 18 of the Act. However, we do find that such registration fee is to be demanded at the time of making of the application by a person proposing to transport the timber and not on per truck basis, but at the same time, if the timber is being transported without any registration mark, the authority will be justified in seizing such timber as its transportation would be per se contrary to the provisions of the Rules 1978. 9. We may record that the validity of the Rules 1978 has already been upheld and there is no challenge to the Rules in the present writ petition. 10. For all the aforesaid reasons, we dispose of the present writ petition by requiring the authorities to act in conformity with the provisions of Rules, 1978.