High Court of Judicature at Allahabad

Reserved

Civil Misc. Writ Petition No.975 of 2004

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

and others

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

Hon'ble R.K.Agrawal, J.

Hon'ble Prakash Krishna, J.

(Delivered by R.K.Agrawal, J.)

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 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").

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:-

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.

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 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.

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 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.

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.

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.

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.

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.

In Civil Misc. Writ Petition No.1607 of 2004, the petitioners hold 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.

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.

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.

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.

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.

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 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.

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.

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.

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.

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

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 therefor. 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 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 sub-section (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."

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.

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.

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 -

(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."

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.

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.

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"

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 sub-section (4) of Section 2 of the Act being products of mines and quarries.

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.

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.

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 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'.

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.

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.

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".

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.

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

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.

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."

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".

Thus, from the various meanings given to the word ''brought' in various dictionaries, referred to above, it is 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.

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.

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.

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.

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.

In the case of M/s Indian Wood Products Co. Ltd. (supra), this Court has held that the State Government is 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.

In the case of T.N.Godavarman Thirumulkpad (supra) 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.

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.

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.

It may be mentioned here that under Rule 5 of the Rules, fee is payable at the check chowki or depot established under Rule 15 and specified under proviso (ii) to clause (b) of sub-rule (1) of Rule 4 of the Rules. The Divisional Forest Officers in the authorisation specifies the period during which the authorisation shall remain in force and the route to be adopted and the check chowki or depot through which the produce must pass. If a forest produce is being brought from a forest while in transit, the fee is payable, as it is regulatory in nature.

So far as the coal which is being imported from outside the State of U.P. or being transported within the State of U.P. is concerned, it may be mentioned here that during its transportation, it does pass through the forest in Sonebhadra. Thus, the transit fee is leviable.

So far as the challenge to the fee of Rs.38/- per metric tonne being arbitrary and discriminatory is concerned, it may be mentioned here that a uniform fee has been levied on all forest produce when it is brought by lorry load. It simply turns out to be 38 paise per Kg. which, in the present case, can hardly be said to be excessive or exorbitant or prohibitive. No details have been given by the petitioners to establish that the levy of transit fee @ Rs.38/- per metric tonne is prohibitive or confiscatory. Thus, the challenge to it being arbitrary and discriminatory has no substance.

In view of the foregoing discussions, we do not find any merit in these petitions. They are dismissed.

April 27, 2005

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