# Kumar Stone Works & others v. State of U.P. and others

- **Citation:** (2005) 2 ILRA 523
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-04-27
- **Case number:** Civil Misc. Writ Petition No.975 of 2004
- **Bench:** R.K. Agrawal, Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-stone-works-others-v-state-of-u-p-and-others-40483
- **Pages:** 14

## Headnote

(A) Forest Conservation Act-Section 2
(1)-forest includes-mines and quarriesremained beneath the surface of earth
with
minerals,
Stones
and
other
produce-lockup in the land.

Held: Para 46

From the aforementioned cases, it would
be seen 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. They are being brought from
the forest as during transportation they
cross the forest.

(B) U.P. (Transport of Timber and others
Forest Produce) Rules 1978-as amended
by first Amendment Rules 2004 Rule-5Transit
Fee-petitioner
Transporting
Stone Chips, Stone grit, Stone ballast,
sand, morrum, coal, lime stone etc. in
different part of U.P. for sale-whether
are they liable to pay the transit fee
held-"yes" all goods specified under 2
(4) (1)(iv) are covered under definition
of forest-realization of Transit fee held
proper.

Held: Para 47

Applying the principles laid down in the
aforesaid cases to the facts of present
cases, we find that under sub-clause (iv)
of clause (b) of sub-section (4) of
Section 2 of the Act all the goods in
question would be covered as forest
produce. All of them are being brought
from the forest. In the districts of
Sonebhadra, Chitrakoot, Saharanpur and
Bijnor, which are major districts where
the present petitioners deal with the
goods, there are large forest and it
cannot be believed that the goods are
not being brought from forest land. Even
the roads constructed by the Public
Works Department pass through forest
and, therefore, the goods would be
covered under the definition ''forest
produce' referred to above. Thus, they
are liable to transit fee. The decision in
the
case
of
Indian
Mica
Micanite
Industries (supra), relied upon by Sri
N.C. Gupta, wherein the Apex Court has
held that services are to be rendered and
should broadly corelate with the fee
charged would not be applicable in the
present case inasmuch as the Apex Court
in
Sitapur
Packing
Wood
Suppliers
(supra) has already held the transit fee
leviable under the Rules as regulatory in
nature and no quid pro quo is required to
be established.
Case law discussed:
2002 (II) ACJ 1170
1971 (2) SCC-236
AIR 1969 Tripura-62
AIR 1978 Bom. 110 (FB)
AIR 1999 Alld. 222
1997 (2) SCC-267
1976 (1) SCC-834
1994 (1) SCC (Supply)413
2000(5) SCC-511
1996(10) SCC-397
2000(3) SCC-525
2003 (1) SCC-70

## Text

_Characters 0–39,876 of 45,868. This is a partial read: ask again with offset=39876 for what follows._

2 All] State of U.P. V. Bharthu and others

 523
(4) All these five accused respondents are
convicted under Sections 325 I.P.C.
read with Section 149 I.P.C. and 323
I.P.C. read with Section 149 I.P.C.

(5) As accused respondent Chandradhari
was a child as per U.P. Children Act,
1951 at the time of incident, no
sentence is passed against him and he
is afforded the benefit of Children Act
which was then in force.

(6) The accused respondent Bharthu is
sentenced
to
undergo
rigorous
imprisonment for one year under
Section
148
I.P.C.
Accused
respondents Bechu, Chandar and
Chulli are sentenced to undergo six
months' rigorous imprisonment under
Section 147 I.P.C. Each of these four
accused respondents are sentenced to
undergo
three
years'
rigorous
imprisonment under Section 325
I.P.C. read with Section 149 I.P.C.
and to pay a fine of Rs.10,000/- each.
In default of payment of fine, each of
them shall undergo further rigorous
imprisonment for one year. All these
four are also sentenced to undergo six
months' rigorous imprisonment under
Section 323 I.P.C. read over Section
149 I.P.C.

If the fine is realized, half of it i.e.
Rs.20,000/- shall be paid as compensation
to the wife of the deceased Ram Karan. In
case she is not alive, such compensation
shall be paid to the other nearest relative
of Ram Karan deceased as per Hindu
Succession Act, 1956. The remaining
amount of fine of Rs.20,000/- shall go to
the State exchequer.

(7) Substantive
sentences
of
imprisonment shall run concurrently,
but that imposed in default of
payment of fine has to be undergone
separately.

(8) The accused respondents, namely,
Bharthu, Bechu, Chandar and Chulli
are on bail. The Chief Judicial
Magistrate, Azamgarh shall cause
them to be arrested and lodged in jail
to serve out the sentences passed
against
them.
He
shall
report
compliance within two months from
the date of receipt of this order.

Judgment be certified to the lower court
immediately.
Appeal Partly Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2005

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No.975 of 2004

Kumar Stone Works & others ...Petitioners
Versus
State of U.P. and others ...Respondents

Alongwith
Civil Misc. Writ Petition Nos.26734, 29568 and
35857 of 2002, and 947, 976, 985, 993, 995,
998, 1003, 1010, 1016, 1021, 1022, 1027,
1030, 1036, 1040, 1041, 1049, 1051, 1055,
1056, 1057, 1060, 1063, 1068, 1079, 1080,
1082, 1083, 1084, 1102, 1109, 1126, 1128,
1140, 1151, 1153, 1163, 1207, 1232, 1234,
1253, 1265, 1278, 1284, 1285, 1288, 1290,
1363, 1364, 1373, 1381, 1390, 1392, 1405,
1412, 1413, 1457, 1460, 1466, 1494, 1495,
1514, 1515, 1524, 1541, 1542, 1547, 1558,
1559, 1598, 1607, 1629, 1661, 1682, 1683,
1700, 1707, 1726, 1784, 1807, 1816, 1817,
1818, 1821, 1838, 1843, and 1850 of 2004
524 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Counsel for the Petitioners:
Sri Shashi Nandan
Sri M.L. Srivastava
Sri W.H. Khan
Sri B.P. Singh
Sri N.C. Gupta
Sri A.K. Gaur
Sri B.K. Narayan

Counsel for the Respondents:
Sri S.M.A. Qazmi
Sri S.P. Kesharwani
C.S.C.

(A) Forest Conservation Act-Section 2
(1)-forest includes-mines and quarriesremained beneath the surface of earth
with
minerals,
Stones
and
other
produce-lockup in the land.

Held: Para 46

From the aforementioned cases, it would
be seen 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. They are being brought from
the forest as during transportation they
cross the forest.

(B) U.P. (Transport of Timber and others
Forest Produce) Rules 1978-as amended
by first Amendment Rules 2004 Rule-5Transit
Fee-petitioner
Transporting
Stone Chips, Stone grit, Stone ballast,
sand, morrum, coal, lime stone etc. in
different part of U.P. for sale-whether
are they liable to pay the transit fee
held-"yes" all goods specified under 2
(4) (1)(iv) are covered under definition
of forest-realization of Transit fee held
proper.

Held: Para 47

Applying the principles laid down in the
aforesaid cases to the facts of present
cases, we find that under sub-clause (iv)
of clause (b) of sub-section (4) of
Section 2 of the Act all the goods in
question would be covered as forest
produce. All of them are being brought
from the forest. In the districts of
Sonebhadra, Chitrakoot, Saharanpur and
Bijnor, which are major districts where
the present petitioners deal with the
goods, there are large forest and it
cannot be believed that the goods are
not being brought from forest land. Even
the roads constructed by the Public
Works Department pass through forest
and, therefore, the goods would be
covered under the definition ''forest
produce' referred to above. Thus, they
are liable to transit fee. The decision in
the
case
of
Indian
Mica
Micanite
Industries (supra), relied upon by Sri
N.C. Gupta, wherein the Apex Court has
held that services are to be rendered and
should broadly corelate with the fee
charged would not be applicable in the
present case inasmuch as the Apex Court
in
Sitapur
Packing
Wood
Suppliers
(supra) has already held the transit fee
leviable under the Rules as regulatory in
nature and no quid pro quo is required to
be established.
Case law discussed:
2002 (II) ACJ 1170
1971 (2) SCC-236
AIR 1969 Tripura-62
AIR 1978 Bom. 110 (FB)
AIR 1999 Alld. 222
1997 (2) SCC-267
1976 (1) SCC-834
1994 (1) SCC (Supply)413
2000(5) SCC-511
1996(10) SCC-397
2000(3) SCC-525
2003 (1) SCC-70

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

1. In this batch of writ petitions, the
petitioners have challenged the realisation
of transit fee on transport of stone chips,
stone grit, stone ballast, sand, morrum,
coal, lime stone, dolomite etc., which they
transport within the State of U.P. and sell
2 All] Kumar Stone Works and others V. State of U.P. and others
 525
to different purchasers. The petitioners
have also challenged the validity of the
notification dated 14.6.2004 issued by the
Government of Uttar Pradesh amending
the U.P. (Transport of Timber and other
Forest Produce) Rules, 1978 (hereinafter
referred to as "the Rules").

2. Civil Misc. Writ Petition No.975
of 2004 is being treated as the leading
petition. Briefly stated, the facts of the
aforementioned petition are as follows:-

3. According to the petitioners, they
have been granted mining lease by the
District
Magistrate,
Sonebhadra,
for
excavation of boulders, rocks, sand and
morrum in the district of Sonebhadra from
the plots situated on the land owned by
the State Government which do not come
within any forest area. The petitioners
allege that they do not carry on any
mining operation in the forest area. After
excavation of boulders, rocks, sand and
morrum etc., they transport the goods
from the site to the destination by truck.
The petitioners convert the stone and
boulder into Gitti. It is the case of the
petitioners that while transporting the
goods, it does not pass through the forest
area and they are not using any forest road
for the purpose of transportation of their
goods. They pay royalty to the State
Government under the provisions of the
U.P.Minor Minerals Concession Rules,
1963 @ Rs.30/- per cubic metre. Prior to
the
amendment
in
the
Rules,
by
notification dated 14.6.2004, a fee of
Rs.5/- per tonne of lorry load on timber
and other forest produce was payable by
the person carrying or transporting the
forest produce which the petitioners were
paying. However, vide notification dated
14.6.2004, the Rules have been amended
and a fee of Rs.38/- per tonne has been
levied. The increase of the fee from Rs.5/-
to Rs.38/- is under challenge in the
present batch of petitions.

4. In the counter affidavit filed by
Sri R.P.Mall, Assistant Conservator of
Forest, Chopan, Forest Division Obra,
district Sonebhadra, on behalf of the
respondents 1 to 6, it has been stated that
the petitioners are procuring the grit,
boulder etc. from the land of village Billi
Markundi notified under Section 4 of the
Indian Forest Act, 1927 (hereinafter
referred to as "the Act"). They are
carrying out mining operations in the
forest land. It has also been stated that the
petitioners of Civil Misc. Writ Petition
No.28290 of 2004 are procuring river
sand of river Son from the land village
Patwah/Chopan and Sasnai notified under
Section 4 of the Act. In respect of the writ
petitions of the district of Sonebhadra, it
has been stated that the notification under
Section 4 of the Act was issued in the
year 1969-70 and forest settlement
process started. However, during the
course of the settlement, the Hon'ble
Supreme Court in the case of Vanwasi
Sewa Ashram's case, vide judgment dated
20.11.1986, directed the forest authorities
to decide the legitimate rights of Adiwasis
and Girijan living in south of Kaimur hills
on their ancestral land holdings. The
petitioners have been granted mining
leases/permits by the District Magistrate
and after the promulgation of the Forest
Conservation Act, 1980, the Forest
Department strongly opposed the mining
operation and the permits were stopped.
One Dharmendra Kumar Singh holding a
mining lease in village Billi Markundi,
filed Civil Misc. Writ Petition No.1126 of
2004 in which it was held that the Forest
Conservation
Act,
1980
was
not
applicable to the area notified under
526 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Section 4 of the Act. The State of U.P.,
feeling aggrieved, filed Civil Appeal
No.4956 of 1989 before the Apex Court
and the Apex Court, vide judgment and
order dated 11.10.1989, had set aside the
order passed by this Court. It has held that
the Forest Conservation Act, 1980 is
applicable and the application for mining
permit is to be decided in the light of the
provision of the said Act. Subsequently,
the Court of the Forest Settlement
Officer/Additional District Judge decided
the cases holding the land of the area
belonging to the State Government
without noticing the fact that these lands
were notified under Section 4 of the Act.
Consequently, a review application was
filed by the Forest Department in the
Court
of
the
Forest
Settlement
Officer/Additional District Judge, Anpara,
stationed at Obra, district Sonebhadra and
vide judgment and order dated 31.5.2003
the Court of the Additional District Judge
had upheld the claim of the Forest
Department for being a reserved forest
area notified under Section 4 of the Act.
The order dated 31.5.2003 passed by the
Additional District Judge is the subject
matter of various writ petitions before this
Court in which interim order has been
passed to the effect that the Forest
Department will not raise any objection or
hindrance in the mining operation of the
petitioners provided mining lease and
mining
rights
are
subsisting.
Thus,
according to the State respondents, grit,
boulder and sand being procured and
transported by the petitioners, are found
in or brought from the forest and as such
the same are forest produce within the
meaning of Section 2(4) of the Act. Even
the source of river sand is the forest area
from where by the flow of water, stones
are converted into small particles and
accumulated in the river bed and as such
sand is also undisputedly forest produce
within the meaning of the aforesaid
provision. It has also been stated that the
Rules was enacted in the year 1978 and
Rule 5 thereof initially provided for
realisation of transit fee on the forest
produce @ Rs.5/- per tonne. Its validity
was challenged before this Court. The
matter ultimately went up to the Apex
Court and in the case of State of U.P. v.
Sitapur Packing Wood Suppliers, JT
2002 (4) SC 341, the Apex Court has held
the levy of transit fee. Since 1978 the
transit fee @ Rs.5/- per tonne remained
the same till the amendment carried out in
the year 2004, i.e., after more than 25
years, whereby the transit fee has been
increased to Rs.38/- per tonne.

5. In the rejoinder affidavit filed by
Virendra Bahadur Singh, who is one of
the petitioners, it has been stated that as
far back as on 23.6.1998 the State
Government has issued notice stopping of
mining operation in the area which comes
within 100 meters of the reserved forest
area. The notice was challenged before
this Court by means of Civil Misc. Writ
Petition No.21008 of 1998 which has
been allowed vide judgment and order
dated 27.1.1999 and this Court has held
that the lease being not on the forest land,
cannot be cancelled. Further, only those
leases which have been granted within
100 meters of the forest land in future can
be cancelled. Special Leave Petition filed
against the judgment and order dated
27.1.1999, has been got dismissed by the
State Government as withdrawn on
14.12.2001.
Thereafter,
the
State
Government has taken a decision for
allotting an area of 98.200 hectares of the
land to the Forest Department in lieu of
the disputed 50 hectares of land which has
been transferred. According to the writ
2 All] Kumar Stone Works and others V. State of U.P. and others
 527
petitioners, the Apex Court had permitted
the appellate authority to review its earlier
decision but such review was to be filed
within a period of 30 days from 10.5.1991
and vide order dated 18.7.1994 a direction
was issued by the Apex Court that the
appellate authority shall function only till
30.9.1994 by which date he was to
conclude the hearing of all the appeals
and review petitions. Pursuant to the
aforesaid order of the Apex Court, the
appellate authority had passed an order on
30.9.1994 deciding all the appeals and
confirming the finding recorded by the
Forest
Settlement
Officer
and
as
thereafter no review was maintainable in
view of the direction given by the Apex
Court and no review could have been
filed by the Forest Department after
30.9.1994.

6. As there is some variation in the
facts of other writ petitions, we deem it
proper to briefly state the facts of other
writ petitions argued by the learned
counsel for the petitioners.

7. In Civil Misc. Writ Petition
No.985 of 2004, the petitioners have
established stone crushers in rural area of
district Saharanpur. They do not have any
mining lease. They purchase boulders,
stone papples, from the mining lease
holders who have been granted mining
lease under the provisions of the U.P.
Minor Mineral Concession Rules, 1963.
According to the petitioners, they are
purchasing the aforesaid goods which are
raw materials from M/s Abdul Wahid &
Company and M/s G.M.V.N., village
Banjarawal which is in the State of
Uttaranchal. After crushing the stone
boulders and stone papples, they get
converted into stone grit, stone chips and
stone dust which are sold to different
purchasers in the State of U.P. They are
being transported in vehicles. According
to the petitioners, the stone boulders and
stone papples which are extracted from
the mines under the valid mining lease
held by their sellers, are not situate in any
forest land and, on the other hand, it is
situate on the Government owned revenue
land and, therefore, the extracted minor
mineral cannot be said to be forest
produce. It is the case of the petitioners
that they do not use any forest land while
transporting the goods and, therefore, the
transit fee is not leviable.

8. In Civil Misc. Writ Petition
Nos.1010
and
1460
of
2004,
the
petitioners
purchase
limestone
from
different lease holder who are located in
Himachal
Pradesh
and
Dehradun
(Uttaranchal). The lease-holders excavate
limestone from the mines and after its
purchase, the petitioners transport it in
trucks. According to the petitioners,
limestone which is excavated from the
mines, is not situate in any forest land and
they do not pass through any forest land
while in transit and, therefore, the transit
fee is not leviable.

9. In Civil Misc. Writ Petition
No.1843 of 2004, the petitioner is holding
a mining lease in Tehsil Mau, district
Chitrakoot. She excavates sand, stone
boulders, grit, building stone etc. from her
own mining lease area and thereafter sells
the same to other persons. According to
the
petitioners,
while
in
transit/transportation, it is not passing
through the reserved forest area or any
forest land and, therefore, the transit fee is
not leviable.

10. In Civil Misc. Writ Petition
No.1607 of 2004, the petitioners hold
528 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
mining lease of limestone in the district
Sonebhadra.
They
excavate
limestone/dolomite
which
are
major
minerals and are used in steel plant,
cement factory, chemical and other core
industries. The area of lease for mining
operation operated by them are outside
the forest area and, according to the
petitioners, these areas have been given
after proper clearance from all concerned
departments including Forest Department.
After excavating the limestone and
dolomite, they send them to various
customers. According to the petitioners,
they do not use the forest land. They are
neither working on the forest land nor
utilising their land for any purpose
whatsoever and, therefore, the demand of
transit fee is wholly illegal.

11. In Civil Misc. Writ Petition
No.993 of 2004, the petitioner is engaged
in the business of sale and purchase of
coal from various dealers within the State
of U.P. as also from outside the State of
U.P. According to the petitioners, it is not
doing any business in any forest produce
nor
is
using
the
forest
land
for
transportation of its commodity, thus,
denying its liability for payment of any
transit fee.

12. In Civil Misc. Writ Petition
No.1838 of 2004, the petitioners are
engaged in the business of trading stone,
ordinary sand, Bajari and limestone at
Najibabad, district Bijnor. They purchase
the minor minerals from Uttaranchal Van
Vikas Nigam and after paying all dues
and taxes, transport it to their principal
place of business at Najibabad, district
Bijnor from where the goods are sold to
individual buyers. It is alleged that they
do not use any forest land and, therefore,
there is no liability for payment of transit
fee.

13. We have heard Sarvasri Shashi
Nandan, learned Senior Counsel, assisted
by Sri M.L.Srivastava, W.H. Khan,
B.P.Singh, N.C. Gupta, A.K. Gaur,
B.K.Narayan, on behalf of the petitioners,
and Sri S.M.A.Qazmi, learned Chief
Standing Counsel, assisted by Sri S.P.
Kesarwani, on behalf of the respondents.

14. Sri Shashi Nandan, learned
Senior Counsel, who led the arguments,
submitted that admittedly the notification
under Section 4 of the Act was issued
some times in the year 1969-70 and
thereafter no notification under Section 20
of the Act has been issued. Thus, he
submitted that land in question from
where the mining activities are being
carried out by the petitioners in the
district
of
Sonebhadra
for
which
necessary mining lease/permits have been
granted, cannot, by any stretch of
imagination, be called a reserved forest.
He further submitted that in paragraphs 11
and 13 of the writ petition it has been
specifically averred that the petitioners
are not using any forest land and,
therefore, the transit fee under the Rules is
not applicable.

15. Sri W.H. Khan, learned counsel
who appeared for the petitioner in Civil
Misc. Writ Petition Nos.985, 1010, 1460
and 1625 of 2004, submitted that the
petitioners are transporting the goods and
are not using any forest land. It cannot, by
any stretch of imagination, be treated as a
forest produce so as to levy the transit fee
under the Rules. Sri Khan has relied upon
a decision of this Court in the case of
Sonebhadra
Miner
Mineral
Lease
Permit Holders Association and others
2 All] Kumar Stone Works and others V. State of U.P. and others
 529
v. State of U.P. and others, 2002(II)
Allahabad Civil Journal 1170, for the
submission that sand is not found in or
brought from forest and, therefore, no
transit fee is chargeable.

16. Sri B.P. Singh, learned counsel
who appeared for the petitioner in Civil
Misc. Writ Petition No.1126 of 2004,
adopted the arguments advanced by Sri
Sahshi Nandan and Sri W.H. Khan, as it
related to stone ballast made from stone
and boulder excavated under the mining
lease/permit from the mines in the district
of Sonebhadra.

17. Sri A.K. Gaur, learned counsel
who appeared for the petitioner in Civil
Misc. Writ Petition No.1607 of 2004,
submitted that the limestone and dolomite
after excavating under a valid mining
lease from the mines in the district of
Sonebhadra, which the petitioners are
transporting, is outside the purview of the
forest produce and no transit fee is
payable.

18. Sri B.K. Narayan, learned
counsel who appeared for the petitioner in
Civil Misc. Writ Petition No.1838 of
2004, submitted that the petitioners are
required to pay more fee as compared to
other goods which is discriminatory. In
the aforesaid case, the petitioners are
transporting sand and Bajri excavated
from the sites for which the mining
lease/permits have been given.

19. Sri N.C. Gupta, learned counsel
who appeared for the petitioner in Civil
Misc. Writ Petition No.993 of 2004,
submitted that the petitioner brings coal
from outside the State of U.P. and does
not use any forest land. Further, no
services are being rendered as the
petitioner is not liable to pay any transit
fee. He has relied upon a decision of the
Apex Court in the case of Indian Mica
Micanite Industries v. The State of
Bihar and others, (1971) 2 SCC 236

20. Sri S.M.A. Qazmi, learned Chief
Standing Counsel, submitted that under
Section 41 of the Act, the State
Government has been empowered to
make rules to regulate the transit fee on
all timbers and other forest produce.
Under clause (a) of sub-section (2) of
Section 41 of the Act, the State
Government has been empowered to
make Rules to prescribe the route by
which alone timber or other forest
produce may be imported, exported or
moved into, from or within the State.
Under clause (c), the State Government
has been empowered to provide for the
issue, production and return of such
passes and for the payment of fees
therefore. The State Government has
further been empowered to make Rules
under Section 76 of the Act. According to
him, the Rules have been framed under
the aforesaid provisions. Rule 3 of the
Rules provides for regulation of transit of
forest produce by means of passes. Rule 4
specifies the officers and persons who
shall have power to issue the passes under
the Rules. Rule 5 provides for the fee
payable for different classes of passes.
According to him, since the year 1978, a
fee of Rs.5/- per tonne of capacity was
payable on a lorry load of timber and
other forest produce, which has been
amended and increased to Rs.38/- per
tonne by the U.P. Transit of Timber and
other Forest Produce (First Amendment)
Rules, 2004, published in the Gazette on
14.6.2004, (hereinafter referred to as "the
first amendment Rules"). He submitted
that the validity of the Rules have been
530 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
upheld by the Apex Court in the case of
Sitapur
Packing
Wood
Suppliers
(supra). All the petitioners had been
paying the transit fee @ Rs.5/- per metric
tonne of lorry load without any protest or
difficulty. After more than 25 years, the
fee has been revised upwards to Rs.38/-
per metric tonne, which cannot be said to
be arbitrary. The fee is regulatory in
nature and, therefore, rendering of any
service or the existence of quid pro quo is
not required. He submitted that under
Section 2(4) of the Act, ''Forest Produce'
has been defined. It has been given an
inclusive meaning. It does not speak of
any forest land and, therefore, the plea of
the petitioners that they do not use forest
land, is irrelevant for deciding the issue.
According to him, under clause (a) of subsection (4) of Section 2 of the Act, timber,
charcoal, coutchouc, catechu, wood-oil,
resin,
natural
varnish,
bark,
lac,
myrabalans and rhinoceros horns are to be
treated as forest produce whether they are
found in or brought from a forest or not.
However, under clause (b) of sub-section
(4) of Section 2 of the Act, the items
mentions in sub-clauses (i) to (iv) when
found in or brought from a forest, are
treated as forest produce. They are -

"(i) trees and leaves, and fruits and
all other parts or produce not herein
before mentioned of trees,
(ii) plants not being trees (including grass,
creepers, reeds, and moss), and all parts of
produce of such plants,
(iii) wild animals and skins, tusks and
horns other than rhinoceros horns, bones,
silk, cocoons, honey and wax, and all
other parts or produce of animals, and
(iv) peat, surface oil, rock and minerals
(including limestone, laterite, mineral oils
and all products of mines and quarries."

21. He submits that the goods in
question are all covered under sub-clause
(iv) of clause (b) of sub-section (4) of
Section 2 of the Act and, therefore, they
are to be treated as forest produce and
liable to transit fee. In support of his
aforesaid submissions, he has relied upon
the following decisions:-

(i) Nipendra
Chandra
Dutta
Majumder
and
others
v.
Administration of Tripura and
others, AIR 1969 Tripura 62;
(ii) Janu Chandra Waghmare and
others v. The State of Maharashtra
and others, AIR 1978 Bombay 110
(FB);
(iii) M/s Indian Wood Products Co.
Ltd. v. State of U.P. and another,
AIR 1999 Allahabad 222, and
(iv) T.N.Godavarman
Thirumulkpad
v. Union of India and others, (1997)
2 SCC 267.

22. At the outset it may be
mentioned here that the validity of the
Rules have not been challenged by any of
the petitioners and rightly so as its
validity has been upheld by the Apex
Court in the case of Sitapur Packing
Wood Suppliers (supra). In the aforesaid
case, the Apex Court has held that the
transit fee under Rule 5 is clearly
regulatory and, thus, it was not necessary
for the State to establish quid pro quo.

23. Having given our anxious
consideration to the various submissions
made by the learned counsel for the
parties, we find that the forest produce has
been defined in sub-section (4) of Section
2 of the Act as follows:-
"(4) ''Forest Produce' includes -
2 All] Kumar Stone Works and others V. State of U.P. and others
 531
(a)
the following, whether found in, or
brought from, a forest or not, that is
to say-
 timber,
charcoal,
coutchouc,
catechu, wood-oil, resin, natural
varnish, bark, lac, myrabalans and
rhinoceros horns, and
(b) the following when found in or
brought from a forest, that is to say
-
(i)
trees and leaves, and fruits and all
other parts or produce not herein
before mentioned of trees,
(ii) plants not being trees (including
grass, creepers, reeds, and moss),
and all parts of produce of such
plants,
(iii) wild animals and skins, tusks and
horns other than rhinoceros horns,
bones, silk, cocoons, honey and
wax, and all other parts or produce
of animals, and
(iv) peat, surface oil, rock and minerals
(including
limestone,
laterite,
mineral oils and all products of
mines and quarries."

24. The phrase "that is to say"
occurring in clause (b) is exhaustive and
indicates the intention of the Parliament to
limit the restriction to those goods alone
as are specifically mentioned therein, as
held by the Apex Court in the case of
State of Tamil Nadu v. M/s Pyare Lal
Malhotra, (1976) 1 SCC 834; Rajasthan
Roller Flour Mills Association and
another v. State of Rajasthan and
others, 1994 Supp (1) SCC 413;
Telangana Steel Industries and others
v. State of A.P. and others, 1994 Supp
(2) SCC 259; and Commissioner of Sales
Tax,
M.P.
v.
Popular
Trading
Company, Ujjain, (2000) 5 SCC 511.
Thus, only the items mentioned in various
sub-clauses of clause (b) of sub-section
(4) of Section 2 would be forest produce
when found in or brought from forest.

25. From a reading of the aforesaid
provision, it would be seen that there is no
reference to any reserved forest area. Any
of the items mentioned in clause (a) of the
aforesaid provision would constitute a
forest produce whether found in or
brought from a reserved forest area or not.
However, under clause (b) of the
aforesaid provisions, any of the items
mentioned in the various sub-clauses
would be a forest produce if found in or
brought from a forest. Thus, the plea
advanced by Sri Shashi Nandan, learned
Senior Counsel, that the petitioners
excavated the goods/items from the
mines/areas which are not situate in a
reserved forest area, is of no consequence.
The challenge to the order passed by the
Forest
Settlement
Officer/Additional
District Judge, Sonebhadra on the review
applications
filed
by
the
Forest
Department will also not have any
material bearing on the issue involved in
the present writ petitions. To set the
record straight, it may be mentioned here
that this Court in the case of Smt. Pyari
Devi v. State of U.P. and others, 2003
(5) AWC 3945, has upheld the powers of
the Additional District Judge to correct a
mistake which was apparent in the order
dated 23.2.1992. In the aforesaid case, the
application
made
by
the
Forest
Department, being Review Application
No.2180 of 1992, Forest Department v.
Mahendra Singh and others, has been
allowed and an order directing for
constituting a reserved forest under
Section 4 of the Act has been upheld,
which order has been passed pursuant to
the directions given by the Apex Court in
Writ Petition No.1081 of 1992, Banwasi
Sewa Ashram v. State of U.P. and others.
532 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
26. We find that in the case of
Suresh Lohiya v. State of Maharashtra
and another, (1996) 10 SCC 397, the
Apex
Court
while
considering
the
definition clause of sub-section (4) of
Section 2 of the Act, has held that the
legislature
having
defined
''forest
produce', it is not permissible for us to
read in the definition something which is
not there. It has held as follows:-

"7. The legislature having defined
"forest-produce", it is not permissible to
us to read in the definition something
which is not there. We are conscious of
the fact that forest wealth is required to be
preserved; but, it is not open to us to
legislate, as what a court can do in a
matter like at hand is to iron out creases;
it cannot weave a new texture. If there be
any lacuna in the definition it is really for
the legislature to take care of the same"

27. It may be mentioned here that
the Apex Court in the case of the
Commissioner of Sales Tax, U.P. v. Lal
Kunwa Stone Crusher (P) Ltd., (2000)
3 SCC 525, has held that the stone
boulders crushed into stone chips and
gittis and stone ballast still continues to be
stone and they are not commercially
different goods to be identified differently
for the purposes of sales tax. The Apex
Court has held that the stone as such and
gittis and articles of stone are of similar
nature though by size they may be
different. The aforesaid decision has been
followed subsequently by the Apex Court
in the case of State of Maharashtra v.
Mahalaxmi Stores, (2003) 1 SCC 70.
Thus, the conversion of stone and boulder
into Gitti Bajari etc. would remain stone
and would come under sub-clause (in this
view of the matter,) of clause (b) of subsection (4) of Section 2 of the Act being
products of mines and quarries.

28. From a reading of the provisions
of sub-section (4) of Section 2 of the Act,
as reproduced hereinbefore, we find that
while under clause (a) certain types of
produce have been declared to be a forest
produce, whether they are found in or
brought from a forest or not, under clause
(b), in various sub-clauses, the items have
been mentioned and for them being a
forest produce, it is necessary that they
should be found in or brought from a
forest.

29. The goods in question do not fall
under clause (a) of sub-section (4) of
Section 2 of the Act. The can come under
clause (b) of sub-section (4) of Section 2
of the Act only if the goods in question
are either found in a forest or brought
from a forest. The stone quarries situated
in the district of Sonebhadra, which are
being operated by the petitioners under a
valid lease, are in the forest. Even it is
assumed that the stone quarries are not in
the forest, they would still fall under
clause (b) of sub-section (4) of Section 2
of the Act in case the goods are not found
but have been brought from a forest. The
words ''brought from' have not been
defined under the Act or the Rules. In
order to ascertain its true meaning and
real concept, we have to take recourse to
various dictionaries and the meaning
ascribed therein.

30. In Collins Cobuild Advanced
Learner's English Dictionary, New
Edition, the New Shorter Oxford
English
Dictionary
on
Historical
Principles. Volume I, A-M, the World
Book Dictionary, Volume I, A-K, the
Concise English Dictionary, and the
2 All] Kumar Stone Works and others V. State of U.P. and others
 533
Random House Dictionary of the
English Language, Unabridged Edition,
the word ''brought' means the past tense
and past participle of bring. Thus, we
have to see the meaning of the word
''bring' as the word ''brought' is the past
tense and past participle of ''bring'.

31. In P. Ramanatha Aiyar's
Advanced Law Lexicon, 3rd Edition
(Extensively Revised and Enlarged)
Volume 1 A-C, 2005, the word ''brought'
means taken; carried.

32. In Merriam-Webster Online
Dictionary, the word ''bring' means to
convey, lead, carry, or cause to come
along with one towards the place from
which the action is being regarded.

33. The New Shorter Oxford
English
Dictionary
on
Historical
Principles. Volume I, A-M, various
meanings have been given to the word
''bring'. One of the meanings given is
"cause to come from, into, out of, to, etc.,
a state or condition, to an action" and
"cause to come or go into a certain
position or direction".

34. In the World Book Dictionary,
Volume I, A-K, the word ''bring' means to
come with (something or person) from
another place; take along to a place or
person; to cause (a ship etc.) to come or
go into a certain position or direction.

35. In the Concise English
Dictionary, the word ''bring' has been
given the meaning as to cause to come
alongwith oneself, to bear, to carry.

36.

In
the
Random
House
Dictionary of the English Language,
Unabridged Edition, the word ''bring'
means to carry, convey, conduct or cause
(someone or something) to come with or
to or toward the speaker.

37. In Black's Law Dictionary,
Revised Fourth Edition, 1968, the word
''bring' means to convey to the place
where the speaker is or is to be, to bear
from a more distant to a nearer place, to
make to come, procure, produce, draw to,
to convey, carry or conduct, move.
Frederick v. Great Northern Rly. Co., 207
Wis. 234, 240 N.W. 387, 390. The doing
of something effectual; the bringing of
someone
to
account,
or
the
accomplishment of some definite purpose.
Landrum v. Fulton, 47 Ohio App. 376,
191 N.E. 917, 918. The word ''brought'
has been given the meaning as "Taken,
carried. United States v. Townsend,
D.C.N.Y., 219 F. 761, 762. Past tense of
"bring". Frederick v. Great Northern Rly.
Co., 207 Wis. 234, 240 N.W. 387, 390, 80
A.L.R. 984."

38. In Words and Phrases,
Permanent
Edition,
1658
Todate,
Volume 5A, Boatable - B Zone, the
word "brought" is defined as the past
tense of "bring", which is defined as to
convey to the place where the speaker is
or is to be, to bear from a more distant to
a nearer place, to make to come, procure,
produce, draw to, to convey, carry or
conduct, move. Lessee's assumption of all
risks of damage or loss to property
"brought" upon or in proximity to
premises
affected
only
property
so
brought after execution of lease. Frederick
v. Great Northern Rly. Co., 240 N.W.
387, 390, 207 Wis. 234".

39. Thus, from the various meanings
given to the word ''brought' in various
dictionaries, referred to above, it is
534 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
absolutely clear that it is a verb and past
tense and past participle of the word
''bring'. Further, if a thing is being carried
from a particular place, it will be taken to
have been brought from that place. The
dictionary meaning of the word ''bring', as
given in various dictionaries, referred to
above, also conveys the same meaning.

40. The goods involved in the
present case are mentioned in sub-clause
(iv) of clause (b) of sub-section (4) of
Section 2 of the Act as the said clause (b)
of sub-section (4) of Section 2 of the Act
deals with all surface soil, rock and
minerals including lime stone and all
produce of mines or quarry. Each of the
goods involved in the present petitions are
products of either surface soil, rock or
minerals or produce of mines or quarries.
The only requirement of their being forest
produce would be as to whether they are
found in a forest or being brought from a
forest. So far as the goods involved in the
writ
petitions
relating
to
district
Sonebhadra are concerned, we find that
all the items are found in forest except
sand. The words "brought from forest"
necessarily implies that it passes through
the forest. In any event, they are being
brought from forest. Similar is the case in
respect of the goods involved in other writ
petitions which relate to other districts.

41. In the case of Sonebhadra
Miner Mineral Lease Permit Holders
Association (supra), this Court has held
that if the minor mineral excavated or not
found in or brought from the forest, as
defined under the Act, no transit fee can
be charged from the petitioners.

42. In the case of Nipendra
Chandra Dutta Majumder (supra), the
Gauhati High Court has held that the
expression ''forest produce' is defined in
sub-section (4) of Section 2 of the Act to
include timber whether found in or
brought from a forest or not. Hence, it can
be stated without demur that the Chief
Commissioner is possessed of ample
powers to make rules relating to the
transit of all timber and other forest
produce whether found in or brought from
reserved forests or private land.

43. In the case of Janu Chandra
Waghmare (supra), the Full Bench of the
Bombay High Court 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
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.

44. In the case of M/s Indian Wood
Products Co. Ltd. (supra), this Court has
held that the State Government is
2 All] Kumar Stone Works and others V. State of U.P. and others
 535
possessed of ample powers to make rules
relating to transit fee on timber and other
forest produce, whether found in or
brought from the reserved forest or
private land.

45.