M/S Giriraj Enterprises vs State Of U.P. And Others
2013 Latest Caselaw 7331 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 32
 

 
Case :- WRIT TAX No. - 484 of 2012
 

 
Petitioner :- M/S Giriraj Enterprises
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Vishwjeet
 
Counsel for Respondent :- C.S.C.
 
Connected with 
 
Writ Tax Nos.485 of 2012, 501 of 2012, 505 of 2012, 509 of 2012, 517 of 2012, 521 of 2012, 537 of 2012, 566 of 2012, 582 of 2012, 593 of 2012, 594 of 2012, 598 of 2012, 600 of 2012, 637 of 2012, 664 of 2012, 673 of 2012, 678 of 2012, 682 of 2012, 689 of 2012, 692 of 2012, 695 of 2012, 715 of 2012, 736 of 2012, 737 of 2012, 740 of 2012, 758 of 2012, 765 of 2012, 766 of 2012, 767 of 2012, 795 of 2012, 797 of 2012, 820 of 2012, 834 of 2012, 835 of 2012, 837 of 2012, 848 of 2012, 851 of 2012, 855 of 2012, 859 of 2012, 860 of 2012, 861 of 2012, 867 of 2012, 872 of 2012, 874 of 2012, 880 of 2012, 886 of 2012, 916 of 2012, 921 of 2012, 923 of 2012, 924 of 2012, 925 of 2012, 930 of 2012, 931 of 2012, 932 of 2012, 933 of 2012, 937 of 2012, 942 of 2012, 946 of 2012, 952 of 2012, 957 of 2012, 962 of 2012, 974 of 2012, 978 of 2012, 982 of 2012, 983 of 2012, 995 of 2012, 996 of 2012, 1009 of 2012, 1010 of 2012, 1011 of 2012, 1012 of 2012, 1008 of 2012, 679 of 2012, 1029 of 2012, 1015 of 2012, 1020 of 2012, 1023 of 2012, 1026 of 2012, 1028 of 2012, 571 of 2012, 1057 of 2012, 1058 of 2012, 1060 of 2012, 1061 of 2012, 1067 of 2012, 1035 of 2012, 1038 of 2012, 1039 of 2012, 1045 of 2012, 1078 of 2012, 1086 of 2012, 1065 of 2012, 1112 of 2012, 1117 of 2012, 1115 of 2012, 468 of 2012, 1094 of 2012, 1133 of 2012, 1136 of 2012, 1139 of 2012, 1142 of 2012, 1146 of 2012, 1153 of 2012, 1158 of 2012, 1159 of 2012, 1160 of 2012, 1172 of 2012, 1275 of 2012, 1276 of 2012, 1195 of 2012, 1308 of 2012, 1309 of 2012, 808 of 2012, 1303 of 2012, 1260 of 2012, 1292 of 2012, 1383 of 2012, 1262 of 2012, 1251 of 2012, 13 of 2013, 15 of 2013, 1253 of 2012, 19 of 2013, 47 of 2013, 54 of 2013, 55 of 2013, 57 of 2013, 58 of 2013 , 105 of 2013, 132 of 2013, 123 of 2013, 124 of 2013, 500 of 2012, 111 of 2013 , 977 of 2010, 980 of 2010, 1177 of 2012, 1192 of 2012, 1193 of 2012, 1198 of 2012, 1204 of 2012, 1219 of 2012, 1220 of 2012, 1221 of 2012, 1224 of 2012, 1231 of 2012, 1243 of 2012, 1279 of 2012, 1314 of 2012 , 1324 of 2012, 1325 of 2012, 1330 of 2012, 1338 of 2012, 1352 of 2012, 1380 of 2012, 1393 of 2012, 1395 of 2012, 9 of 2013, 28 of 2013, 30 of 2013, 32 of 2013, 36 of 2013, 97 of 2013, 115 of 2013, 141 of 2013, 153 of 2013, 163 of 2013, 166 of 2013, 176 of 2013, 184 of 2013, 185 of 2013, 188 of 2013, 196 of 2013, 198 of 2013, 210 of 2013, 211 of 2013, 213 of 2013, 216 of 2013, 218 of 2013, 220 of 2013, 226 of 2013, 238 of 2013, 241 of 2013, 246 of 2013, 256 of 2013, 259 of 2013, 264 of 2013, 266 of 2013, 277 of 2013, 280 of 2013, 287 of 2013, 290 of 2013, 292 of 2013, 308 of 2013, 318 of 2013, 320 of 2013, 333 of 2013, 370 of 2013, 382 of 2013, 392 of 2013, 393 of 2013, 395 of 2013, 401 of 2013, 407 of 2013, 410 of 2013, 420 of 2013, 428 of 2013, 457 of 2013, 461 of 2013, 485 of 2013, 491 of 2013, 496 of 2013, 497 of 2013, 504 of 2013, 510 of 2013, 513 of 2013, 515 of 2013, 516 of 2013, 525 of 2013, 527 of 2013, 528 of 2013, 532 of 2013, 536 of 2013, 537 of 2013, 543 of 2013, 552 of 2013, 555 of 2013, 561 of 2013, 567 of 2013, 568 of 2013, 577 of 2013, 588 of 2013, 592 of 2013, 613 of 2013, 616 of 2013, 621 of 2013, 625 of 2013, 626 of 2013, 665 of 2013, 1454 of 2008, 702 of 2013, 707 of 2013, 708 of 2013, 743 of 2013, 744 of 2013, 778 of 2013, 779 of 2013, 772 of 2013, 791 of 2013, 691 of 2013, 755 of 2013, 763 of 2013, 802 of 2013, 807 of 2013, 822 of 2013, 825 of 2013, 828 of 2013, 840 of 2013, 783 of 2013, 849 of 2013, 863 of 2013, 869 of 2013, 816 of 2013, 866 of 2013, 817 of 2013, 885 of 2013, 2301 of 2008, 889 of 2013, 895 of 2013, 853 of 2013, 903 of 2013, 904 of 2013, 908 of 2013, 911 of 2013, 918 of 2013, 919 of 2013, 923 of 2013, 942 of 2013, 950 of 2013, 951 of 2013, 1537 of 2008, 447 of 2013, 452 of 2013, 649 of 2013, 651 of 2013, 654 of 2013 , 661 of 2013, 662 of 2013, 456 of 2013, 675 of 2013, 724 of 2013, 784 of 2013, 788 of 2013, 792 of 2013 and 913 of 2013 
 

 
Hon'ble Sunil Ambwani,J.

Hon'ble Surya Prakash Kesarwani,J.

1. In this batch of writ petitions the petitioners have challenged the 4th and 5th Amendments to the U.P. Transit of Timber and Other Forest Produce Rules, 1978 (the Rules of 1978) made under Sections 41, 42, 51, and 76 of the Indian Forest Act, 1927, and have also raised issues of  imposition and realisation  of transit fees on the exempted goods or industrial by-products like Clinker and Fly ash.

2. The writ petitions challenging the constitutional validity of the Rules of 1978, as well as the validity of the 3rd Amendment to the Rules were decided by a Division Bench of this Court in Kanhaiya Singh and another vs. State of UP and others, Civil Misc. Writ Petition No.16488 of 2007 decided on 5.4.2007, following the judgment in State of UP & others vs. Sitapur Packing Wood Suppliers & others (2002) 4 SCC 566, and the earlier judgment of this Court in Kumar Stone Works & others vs. State of UP & others 2005 (3) AWC 2177. In SLP (C) No.11367 of 2007 (Kanhaiya Singh & anr vs. State of UP & ors) Hon'ble Supreme Court by its order dated 23.7.2008, stayed the realisation of any demand of transit fees.

3. The State Government amended the Rules of 1978 by 4th Amendment dated 20.10.2010 raising the transit fee from Rs.38/-  to Rs.200/75 per cubic meter capacity per lorry, and thereafter by the 5th Amendment  to the Rules of 1978 dated 4.6.2011 it further enhanced the  transit fees from 5% to 15% ad volarem on the value of the forest produce for transportation.  In NTPC Limited and ors vs. State of UP and others 2011 (11) ADJ 390  decided on 11.11.2011, this Court declared the 4th and 5th Amendments to the Rules as unconstitutional and allowed the State Government to charge transit fees on the rates prescribed in the 3rd Amendment to the Rules of 1978. The State of UP has challenged in the judgment in NTPC Ltd vs. State of UP (supra) in the Supreme Court.

4. All the matters are pending in Hon'ble Supreme Court, and in which a request was made by the State of UP for the matters to be listed for final hearing. Learned senior counsel appearing for the State of UP drew the attention of Hon'ble Supreme Court that the interim orders have been passed in the Special Leave Petitions from time to time, which are essentially in two categories namely those arising from the judgments in Kanhaiya Singh and another vs. State of UP and others (supra) and NTPC Limited and ors vs. State of UP and others (supra) and that these orders have not permitted the State to make recoveries of transit fees. It was contended that the interim orders will also make it difficult for the State to make recoveries except where the material is exempted or where the material is an industrial by product like Flyash and Klinker. He submitted that the interest of the private parties could be sufficiently protected by the Court directing that in the event of private parties succeeding in these proceedings the amount deposited/paid by them shall be refunded to them with interest @ 9% per annum from the date of the deposit till the actual refund.

5. In the writ petitions pending in this Court, though this Court has decided all the issues, which were brought before it in Kumar Stones vs. State of UP (supra); Kanhaiya Singh and another vs. State of UP and others (supra) and NTPC Limited and ors vs. State of UP and others (supra), interim orders have been allowed, on the ground that in all pending SLP's and Civil Appeals, the demand and realisation of transit fee has been stayed by the Apex Court. Consequently the entire recovery of the transit fee has been stayed in the State of UP. In some of the orders passed in the year 2012-13, this Court directed the parties to obtain the transit passes on giving the information as required in the Rules of 1978, for the purpose of realisation, in the event the Civil Appeals pending in the Supreme Court fail. The demand and realisation of transit fee, however, following the interim orders passed by Supreme Court, have been stayed.

6. Hon'ble Supreme Court on such prayers on behalf of State of UP, while fixing the matters for hearing in the month of February, 2014, found it expedient to modify the interim orders suitably so that a uniform and consistent picture may emerge, even though the controversy involved is more or less the same in all these cases. By its order dated 29.10.2013, Hon'ble Supreme Court has modified interim orders in all the pending Special Leave Petitions as follows:-

"We have given our anxious consideration to the  submissions made at the Bar.  It is true that the matters are now being listed for final hearing in the month  of  February,  2014.  but  it  is  equally true that the arrangements already made  do not present  a uniform  and  consistent  picture  even  though  the   controversy involved is more or less the same in  all these cases.

In some petitions, there is no interim order as noticed  by us earlier.  In some  others  the  direction  is  that  the  party concerned would pay but any such payment would remain  subject  to the outcome of these SLPs.  In  the  3rd  category  of  cases  the recoveries  have  been  stayed  unconditionally.     We   see   no justification for continuance of such varying arrangements  having regard to the totality of the circumstances.  We  are,  therefore, inclined to modify the orders suitably and the following effect:

1) The State shall be  free  to  recover  transit  fee  for forest produce removed from within the State of U.P. at  the  rate stipulated in the 3rd amendment to  the  Rules  mentioned  in  the earlier part of this order.

2) Any such recovery shall  remain subject to the ultimate outcome of present petitions pending in this Court.

3)  In  the  event  of  writ  petitioners/private  parties  succeeding in their cases,  the  amount  deposited/recovered  from them shall be  refunded to them with interest at the  rate  of  9%   p.a. from the date the deposit was made till actual refund.

4) The State shall maintain accurate  amount  of  recovery made and the nature  and  the  quantum/quantity   of  the  produce removed by the private parties concerned.

5) Even in the 2nd batch of  cases  arising  out  of  Writ Petition No. 975 of 2004 whereby the High Court  has  struck  down the 4th and 5th amendment to the Rules, the  State shall  be  free to   make recoveries in terms of the 3rd amendment  in  regard  to the forest produce removed from within the  State  of  U.P.    The operation of the orders passed by the High  Court  shall  to  that extent remain stayed.

6) This modification shall not apply to exempted goods  or industrial by products like Klinker and fly ash."

7. Upon hearing Shri C.B. Yadav, Additional Advocate General assisted by Shri Vishnu Pratap, Standing Counsel we are of the view that it will be appropriate to dispose of all the writ petitions, which are pending in this Court, on the same terms and conditions as provided in the interim orders issued by Hon'ble Supreme Court on 29.10.2013. This Court has already decided the issues brought before it. The judgments of this Court in Kumar Stone Works & others vs. State of UP (supra); Kanhaiya Singh and another vs. State of UP (supra); and NTPC Ltd vs. State of UP (supra), have not been stayed by Supreme Court, and thus nothing further has to be decided by this Court. The writ petitions were entertained and interim orders were passed only on the ground of interim orders passed by Hon'ble Supreme Court.

8. All the writ petitions were listed on 2.12.2013 and were directed to come up today. They were notified to be taken up for hearing.

9. We agree with the submission of the counsels appearing for the State of UP,  that since Hon'ble Supreme Court has considered the stay matter and has modified the interim orders, which are applicable to all the petitioners irrespective of the challenge to Amendments made to the Rules of 1978 and that this Court has already decided the matters finally in Kumar Stone & others vs. State of UP & others (supra);  Kanhaiya Singh and another vs. State of UP and others (supra) and NTPC Limited and ors vs. State of UP and others (supra), it would be in the interest of all the parties and in the fitness of thing to modify the interim orders on the same terms and conditions as the interim orders have been modified by Hon'ble Supreme Court on 29.10.2013.

10. We, therefore, following the order of Hon'ble Supreme Court,  modify all the orders passed in these writ petitions to the following effect:-

1) The State shall be  free  to  recover  transit  fee  for forest produce removed from within the State of U.P. at  the  rate stipulated in the 3rd amendment to  the  Rules  mentioned  in  the earlier part of this order.

2) Any such recovery shall  remain subject to the ultimate outcome of present petitions pending in this Court.

3)  In  the  event  of  writ  petitioners/private  parties  succeeding in their cases,  the  amount  deposited/recovered  from them shall be  refunded to them with interest at the  rate  of  9%   p.a. from the date the deposit was made till actual refund.

4) The State shall maintain accurate  amount  of  recovery made and the nature  and  the  quantum/quantity   of  the  produce removed by the private parties concerned.

5) Even in the 2nd batch of  cases  arising  out  of  Writ Petition No. 975 of 2004 whereby the High Court  has  struck  down the 4th and 5th amendment to the Rules, the  State shall  be  free to   make recoveries in terms of the 3rd amendment  in  regard  to the forest produce removed from within the  State  of  U.P.    The operation of the orders passed by the High  Court  shall  to  that extent remain stayed.

6) This modification shall not apply to exempted goods  or industrial by products like Klinker and fly ash.

11. Since all the issues raised in these writ petitions have already been decided by this Court in the aforesaid judgments, with the aforesaid modification of the  orders, all the writ petitions are disposed of. The orders as modified by us will continue and will be subject to the decision of Hon'ble Supreme Court in the matters pending before it. The State Government will circulate these modified orders for compliance to all the concerned authorities. There will be no order as to costs.

Order Date :- 9.12.2013

RKP