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Subhash Stone Products through its Proprietor, Subhash Chandra Agrahari son of Sri Kapoor Chandra Agrahari Vs. State of U.P. through Principal Secretary Forest and Ors.

País/Territorio
India
Tipo de la corte
Nacional - corte superior
Fecha
Mar 19, 2007
Fuente
UNEP, InforMEA
Nombre del tribunal
High Court of Allahabad
Juez
Misra, R.P.
Umeshwar Pandey
Idioma
Inglés
Materia
Bosques, Recursos minerales
Palabra clave
Medidas de protección forestal Minería Ordenación forestal/conservación de montes Uso social del bosque/bosques comunitarios Servicio forestal/oficiales forestales
Resumen
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, 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 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. The controversy which 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? Based on previous cases, the respondents submitted that irrespective of publication of notification under Section 20 of the Forest Act, the land if once decided by the Government to constitute a reserve forest, it becomes a forest land and the forest department in that view of the matter has every right to levy transit fee in regard thereto. But in the Court view nowhere in those judgments, it has been propounded that even without such notification under Section 20 of the Act, the forest department would be entitled to realize transit fee from the person carrying his or her goods through such land so decided to constitute reserve forest. Before a land shall be deemed to be a reserve forest the formalities, as required within the Act and stated from Section 5 to Section 19, unless are gone into, such declaration under Section 20 is not possible. Before deeming a particular chunk of land or area of land to be a reserve forest, the Clauses (a), (b) and (c) of Section 20 also describe certain conditions, which have to be necessarily fulfilled. Admittedly, in the present case such declaration, as provided under Section 20 of the Act has not been done. The Court finds that the issue in the present case is only as to whether the goods taken out by the mining operation by the petitioner are being carried through the land of forest reserve or not? The decision on this question actually hinges on the point as to whether any land, which has not been declared under Section 20 of the Act as forest reserve, should be legally treated as forest reserve or not? This point was not touched by the Division Bench in Kumar Stone Works and therefore, the land through which the vehicles of the petitioner pass through carrying forest produce being not the land of reserve forest, the respondents-Forest department cannot levy transit fee for such carriage. Of course, any transit fee, which is permissible under the Rules with regard to transportation of such goods being forest produce, if possible, can definitely be realised by the State Government but the transit fee for passing through the land of non reserve forest can definitely not be legally realised by the respondents-Forest department. The Court accordingly directed that such transit fee for using the non reserve forest land for the carriage of forest produce through which the vehicles of the petitioner pass, shall not be realised from it.
Texto completo
COU-156244.pdf
Página web
www.indiankanoon.org