# Ashok Kumar Anandani and others v. The State of U.P. and others

- **Citation:** (2006) 2 ILRA 692
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-03-23
- **Case number:** Civil Misc. Writ Petition No.78955 of 2005
- **Bench:** R.K. Agrawal, Mrs.) Saroj Bala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-anandani-and-others-v-the-state-of-u-p-and-others-40635
- **Pages:** 5

## Headnote

forest procedure) rule 1978-Transit Feepetitioners
having
mining
lease
for
excavation of stone ballast, Khanda
boulder the village from where such
activities going on neither reserved for
forest nor any private forest-villagers
question in shape of pathari having
khanda
and
boulder
etc.-They
approached to the National Highway
either from the private of land of formers
or belongs to Gaon Sabha-whether are
they liable to pay any levy and the
demand of transit fee? Held-'yes'.

Held: Para 13

This Court in the case of Kumar Stone
Works (supra) has held that the word
''forest' would include all that goes with
it and even the mines and quarries which
remained beneath the surface of the
earth with minerals, stones and other
products locked up in the land, will form
part of the forest. Such goods are being
brought from the forest as during
transportation they cross the forest, they
would be covered under the definition of
forest produce under sub-clause (iv) of
clause (b) of sub-section (4) of Section 2
of the Act. Thus, the transit fee is
payable on stone ballast, Khanda and
boulder if they cross the forest during
transportation.
From
the
map
filed
alongwith the supplementary counter
affidavit we find that there are several
forest blocks along the national highway
no.25
and
merely
because
the
petitioners
are
using
the
national
highway no.25 for transportation of their
produce to various destination situated
in Jalaun, Etawah, Lucknow, Kanpur,
Unnao etc., it cannot be said that the
goods are not brought from the forest.
They do pass through the forest and,
therefore, the levy and demand of transit
fee is perfectly within the four corners of
the Transit Rules.
Case law discussed:
W.P. No.975/04 decided on 27.4.05
1997 (2) SCC-267
AIR 1978 Bomb. 110 (FB)

## Text

692 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
respondents herein. This exercise shall be
completed
within
one
month
and
compliance report shall be submitted
immediately thereafter.

The appeal as well as the writ
petition giving rise to this appeal are
allowed and stand disposed off finally in
accordance with directions contained
hereinabove. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2006

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE (MRS.) SAROJ BALA, J.

Civil Misc. Writ Petition No.78955 of 2005

Ashok Kumar Anandani and others

 ...Petitioners
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioners:
Sri Satya Prakash Singh

Counsel for the Respondents:
Sri Vishnu Pratap
Sri S. Rathi
S.C.

U.P. (Transport of Timber and other
forest procedure) rule 1978-Transit Feepetitioners
having
mining
lease
for
excavation of stone ballast, Khanda
boulder the village from where such
activities going on neither reserved for
forest nor any private forest-villagers
question in shape of pathari having
khanda
and
boulder
etc.-They
approached to the National Highway
either from the private of land of formers
or belongs to Gaon Sabha-whether are
they liable to pay any levy and the
demand of transit fee? Held-'yes'.

Held: Para 13

This Court in the case of Kumar Stone
Works (supra) has held that the word
''forest' would include all that goes with
it and even the mines and quarries which
remained beneath the surface of the
earth with minerals, stones and other
products locked up in the land, will form
part of the forest. Such goods are being
brought from the forest as during
transportation they cross the forest, they
would be covered under the definition of
forest produce under sub-clause (iv) of
clause (b) of sub-section (4) of Section 2
of the Act. Thus, the transit fee is
payable on stone ballast, Khanda and
boulder if they cross the forest during
transportation.
From
the
map
filed
alongwith the supplementary counter
affidavit we find that there are several
forest blocks along the national highway
no.25
and
merely
because
the
petitioners
are
using
the
national
highway no.25 for transportation of their
produce to various destination situated
in Jalaun, Etawah, Lucknow, Kanpur,
Unnao etc., it cannot be said that the
goods are not brought from the forest.
They do pass through the forest and,
therefore, the levy and demand of transit
fee is perfectly within the four corners of
the Transit Rules.
Case law discussed:
W.P. No.975/04 decided on 27.4.05
1997 (2) SCC-267
AIR 1978 Bomb. 110 (FB)

(Delivered by Hon'ble R.K. Agrawal, J.)

1. By means of the present writ
petition filed under Article 226 of the
Constitution of India, the petitioners who
are 15 in number, have sought the
following reliefs:-

"(i) to issue a writ of certiorari,
order or direction in the nature of
certiorari quashing the orders dated
2 All] Ashok Kumar Anandani and others V. The State of U.P. and others
693
25.11.2005 and 29.11.2005 filed as
Annexures 1 and 2 to the writ petition;
(ii) to issue a writ of mandamus,
order or direction in the nature of
mandamus commanding and directing the
respondents not to realise transit fee from
the petitioners or from any truck of the
petitioners carrying excavated mineral
from the lease hold area of the petitioners
going to purchaser destination while using
national highway passing through JalaunAuraiya road, Shivpuri-Bhignipur road,
Orai-Rath road, Ate-Kotra road and
Kalpi-Hamirpur road;
(iii) to issue any other writ, order or
direction which this Hon'ble Court deem
fit and proper under the facts and
circumstances of the case and to which
the petitioners are entitled in law;
(iv) to award cost of the petition to
the petitioners."

2. Briefly stated, the facts giving rise
to the present petition are as follows:-

According to the petitioners, they
have been granted mining leases for
excavation of stone ballast, Khanda and
boulder under the provisions of the U.P.
Minor Minerals Concession Rules, 1963
(hereinafter referred to as "the Rules").
The lease has been granted for a period of
10 years and is still subsisting either on
account of its renewal or on account of
initial grant. They are excavating stone
ballast, Khanda and boulder from their
respective
areas.
According
to
the
petitioners,
villages
Digara,
Gora
Macchiya, Dunara, Bijauli, Dangriya,
Palli Pohari and Khailar situate in
Pargana, Tehsil and District Jhansi are
outside the forest area. There is neither
any reserved forest nor any protected
forest nor any private forest adjoining to
the
aforementioned
villages.
These
villages are in the shape of Pathari
villages where Khanda and boulder are
available. After the mining activities, the
excavated
minerals
are
lifted
and
transported from the mining site and are
transported using Gaon Sabha road and
thereafter it reaches the national highway
no.25. These villages are situated near the
national highway and there is no forest at
all anywhere while transporting the
mineral from the mining site of the lease
holder areas and going to purchaser
destination in Etawah, Jalaun, Lucknow,
Kanpur, Unnao etc.

3. The mining leases have been
granted to the petitioners after obtaining
no objection from the Department of
Forest in view of the directions given by
the Apex Court in the matter of T.N.
Godavarman Thirumulkpad v. Union
of
India
and
others,
decided
on
12.12.1996. According to the petitioners,
prior to the judgment of this Court in the
case of Kumar Stone Works and others
v. State of U.P. and others, Civil Misc.
Writ Petition No.975 of 2004, decided on
27.4.2005, no transit fee was being
charged from the petitioners in respect of
transportation of stone ballast, Khanda
and
boulder.
The
Conservator
of
Forest/Regional Director, Bundelkhand
Region,
Jhansi,
vide
order
dated
25.11.2005, has directed for establishment
of check post at various places in the
district of Jalaun for checking/regulating
the export of timber and other forest
produce.
By
another
order
dated
29.11.2005, the Deputy Conservator of
Forest, Orai, has directed the Forest
Range Officer, Jalaun, Kalpi, Orai, Eta
and Kadaura to act in accordance with the
judgment of this Court in Civil Misc. Writ
Petition No. 975 of 2004, dated 27.4.2005
wherein boulder, Gitti, sand, etc. have
694 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
been treated as forest produce. According
to the petitioners, the order dated
29.11.2005 is wholly misconceived as the
decision in Civil Misc. Writ Petition
No.975 of 2004 are not applicable to the
minerals excavated in the lease hold area
which
is
outside
the
forest
and
transportation
is
through
the
State
highway or the national Highway where
the Forest Department has no concern.
Stone ballast, Khanda and boulders are
not and cannot be included within the
definition of the forest produce as given
in sub-section (4) of Section 2 of the
Indian Forest Act, 1927 (hereinafter
referred to as "the Act"). The petitioners
have further claimed that they are lifting
and
transporting
the
minerals
accompanied by Form MM 11 after
depositing the royalty and other expenses
in accordance with the provisions of the
Rules and, therefore, the respondent
authorities cannot charge any transit fee
on the same in pursuance of the
provisions of the U.P. (Transport of
Timber and other Forest Produce) Rules,
1978 (hereinafter referred to as "the
Transit Rules"). The sole purpose of the
regulation of transit of minor minerals is
to check illegal transit which is fully
achieved by the Rules and there is no
occasion for the Forest Department, U.P.,
to realise the transit fee for transporting
the said minerals from the lease hold
areas of the petitioners on the pretext that
the said minor minerals comes within the
definition of the forest produce and the
Transit Rules are not applicable for
transporting of minor minerals. The plea
of violation of Articles 14 and 19 (1)(g) of
the Constitution of India has also been
raised. The petitioners have also assailed
the levy and imposition of transit fee on
the ground that no service is being
rendered.
4. In the supplementary affidavit
filed by the petitioners, it has been stated
that they are using Gaon Sabha land or
private land of the tenure holders before
they reach the national highway no.25 and
there is no forest road surrounding 25
Km. nor there is any forest while
transporting the minerals from the mining
site of the lease hold area and going to the
purchaser destination in Jalaun, Etawah,
Lucknow, Kanpur, Unnao, etc.

5. In the counter affidavit filed by
Sri S.D.Pandey, Forest Range Officer,
Chirgaon, Jhansi, on behalf of the
respondent no.3, it has been stated that
there are so many forest areas along the
national highway no.25, for example,
Baral Forest Block, Bhujaund Forest
Block, Ghateshwar Forest Block, Karguan
Forest Block etc. which are situated along
the national highway no.25 in Jhansi
Forest Division.

6. In the supplementary counter
affidavit filed by Nagendra Bahadur
Singh, Forest Range Officer, Jalaun, a
copy of the map of Jhansi Forest Division
has been filed to show the barriers of the
Forest Department through which the
petitioners and other persons transport
their minor minerals.

7. In the rejoinder affidavit filed by
Ashok Kumar to the counter affidavit of
Sri S.P.Pandey, it has been stated that
there may be several forest areas adjacent
to the national highway no.25 but so far
the area from where the petitioners are
having the right of egress and ingress,
there is no forest. They are not using any
forest road but are using only Public
Works Department road and the national
highway and, therefore, there is no
2 All] Ashok Kumar Anandani and others V. The State of U.P. and others
695
question of applicability of transit fee
over the petitioners.

8. We have heard Sri S.P. Singh,
learned counsel for the petitioners, and Sri
Vishnu Pratap, learned Standing Counsel.

At the outset it may be mentioned
here that Sri S.P. Singh, learned counsel,
did not question the correctness of the
decision of this Court in the case of
Kumar Stone Works (supra) and the
arguments proceeded on the question of
levy and demand of transit fee on
transportation of stone ballast, Khanda
and boulder in the light of the aforesaid
decision.

9. Sri S.P. Singh, learned counsel,
submitted that this Court in the case of
Kumar Stone Works (supra) has not
held as a rule that stone ballast, Khanda,
boulder, rocks, sand, morrum to be the
forest produce in general. It would
become forest produce only when it is
brought from the forest and would fall
under sub-clause (iv) of clause (b) of subsection (4) of Section 2 of the Act. As the
petitioners had not transported the goods
in question from any forest or through any
forest land, they are not liable to pay any
transit fee. The demand of transit fee from
the petitioners on the assumption that this
Court in the case of Kumar Stone Works
(supra) has declared boulders, rocks, sand
and morrum etc. to be forest produce
under the Act and the Transit Rules, is
wholly misconceived and on a wrong
assumption.

10. Sri Vishnu Pratap, learned
Standing Counsel, however, submitted
that the national highway no.25 passes
through forest as there are several forest
blocks over the said national highway and
transit fee is being realised at the check
post only when the vehicles of the
petitioners transporting the goods in
question cross the forest area. Referring to
the
map
filed
alongwith
the
supplementary
counter
affidavit,
he
submitted that it is incorrect to state that
there is no forest area along the national
highway no.25 and, in fact, the said
national highway passes through the
forest. Thus, the levy of transit fee is in
accordance with the judgment of this
Court in the case of Kumar Stone Works
(supra).
According
to
him,
if
the
petitioners are not transporting the goods
from the forest, there would be no
question of crossing the check post
established by the Forest Department as
these check posts have been established
near the forest area.

11. Having given our thoughtful
consideration to various points raised by
the learned counsel for the parties, we
find that in the case of T.N. Godavarman
Thirumulkpad v. Union of India and
others, (1997) 2 SCC 267, the Apex
Court has held that the word "forest" must
be understood according to its dictionary
meaning which description covers all
statutorily recognised forests, whether
designated as reserved, protected or
otherwise for the purposes of Section 2(1)
of the Forest Conservation Act.

12. A Full Bench of the Bombay
High Court in the case of Janu Chandra
Waghmare and others v. The State of
Maharashtra and others, AIR 1978
Bombay 110 (FB), has held that the
expression ''forests' in its normal and
popular connotation includes all that goes
with it, such as, tress with fruits on them,
shrubs,
bushes,
woody
vegetation,
undergrowth,
pastures,
honey-combs
696 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
attached to trees, juices dried on trees,
things embedded in the earth like mines
and quarries with their produce locked up
in the land, wild and stray animals
(excluding domestic animals like cows,
buffaloes, goats, sheep etc.) living in the
forest. The Full Bench of the Bombay
High Court has given a wide meaning to
the term ''forest'. It has held that if the
mines and quarries remain beneath the
surface of the earth with minerals, stones
and other products locked up in the land,
these will form part of the forest. While
referring to the dictionary meaning given
in Oxford English Dictionary, Vol. IV at
page 422, the Full Bench has held that
even the dictionary meaning clearly
shows that forest means an extensive tract
of land together with the trees and
undergrowth which covers such tract and
also includes pastures which intermingled
with such tract.

13. This Court in the case of Kumar
Stone Works (supra) has held that the
word ''forest' would include all that goes
with it and even the mines and quarries
which remained beneath the surface of the
earth with minerals, stones and other
products locked up in the land, will form
part of the forest. Such goods are being
brought from the forest as during
transportation they cross the forest, they
would be covered under the definition of
forest produce under sub-clause (iv) of
clause (b) of sub-section (4) of Section 2
of the Act. Thus, the transit fee is payable
on stone ballast, Khanda and boulder if
they cross the forest during transportation.
From the map filed alongwith the
supplementary counter affidavit we find
that there are several forest blocks along
the national highway no.25 and merely
because the petitioners are using the
national highway no.25 for transportation
of their produce to various destination
situated in Jalaun, Etawah, Lucknow,
Kanpur, Unnao etc., it cannot be said that
the goods are not brought from the forest.
They do pass through the forest and,
therefore, the levy and demand of transit
fee is perfectly within the four corners of
the Transit Rules.

14. So far as the question of creating
the check posts by the Forest Department
under the order dated 25.11.2005 is
concerned, the learned counsel has not
raised any grievance while making his
submissions.

In view of the foregoing discussions,
we do not find any merit in this petition. It
is dismissed. Petition dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.03.2006

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No.2373 of 2006

Sharda Prasad Tiwari & others ...Applicants
Versus
State of UP

...Opposite Party

Counsel for the Applicants:
Sri Jagdish Singh Sengar
Sri Sudhir Solanki

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure-Section 204Summoning
order-contradiction
of
statements of witness-can be seen after
the
trail-even
on
strong
suspicion
against the accused-magistrate has to
issue process-recording those reasonswhile passing summoning order not
necessary.