IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Misc. Application No. 8901 of 2008 In WRIT PETITION No. 2244 of 2008 (M/S) Ashok Stone Crusher, Chorpani, Ram Nagar, through its Proprietor Sri Ashok Kumar. ……Petitioner. Versus State of Uttarakhand and nine others. ..Respondents. Mr. Pankaj Miglani, Advocate for the petitioner. Mr. K.P. Upadhyay, Addl.C.S.C. for the respondent Nos. 1 to 3. None for the other respondents. Date: - 16-03-2010 Hon’ble B.S. Verma J. Heard learned counsel for the parties and perused the record. Despite of sufficient opportunity no counter affidavit has been filed by the respondent Nos. 1 to 3. By means of this writ petition, the petitioner has sought a writ in the nature of mandamus directing the respondents not to levy and collect transit fee on the transit of minor and mineral while being transported by the petitioner. The petitioner is the owner of the Stone Crusher known as Ashok Stone Crusher, Chorpani, Ramnagar Nainital. The petitioner is carrying on the business of manufacturing of stone grits, stone chips and sand etc. The petitioner purchases the boulders and bajri etc from the Uttarakhand Forest Corporation who is the lessee on payment of royalty and other charges including taxes and road taxes using forest road by the petitioner, the lessee 2 had allowed him to remove certain quantity of boulders and bajri etc. On the purchase of boulders, bajri etc, a transit pass in Form MM-11 was issued by the respondent No.4 to the petitioner under the provisions of U.P. Minor Mineral Concessions Rules, 1963. Learned counsel for the petitioner has relied upon the Judgment passed on 26-06-2007 by the Division Bench of this Court in Writ Petition No.993 of 2004 (M/S), Ms. Gupta Builders Vs. State of Uttaranchal and others. Para 21 of the said judgment is quoted below:- “Thus, it is clear that the forest produce provides fees and can be imposed under the MMRD Act. If the produce is sold on payment of royalty, then it is a sale in accordance with the provisions of Rules made under the MMRD Act. Therefore, it is not a sale under the Forest Act and hence the definition of Forest Act cannot be applied on such sale and hence the transit fee cannot be levied as such. The forest produce is sold on the consideration while the minerals under the Mines and Mineral Concession Rules are sold on the payment of royalty”. It has been held in para 22 of the said judgment that the sale made under the MMRD Act [(Mines and Minerals (Regulations and Development) Act] and Rules thereunder the Sate Government is in transit and minor minerals on the basis of sale cannot be to be a sale under the Forest Act and Rules framed thereunder. Therefore, the transit fees which have been framed under the Forest Act by the State of U.P. and State of Uttaranchal cannot be made applicable on the transit of minor and minerals under the MMRD Act and it has been held that the either the State of U.P. or the State of Uttaranchal is entitled to levy and collect transit fee on the transit of such minor and minerals 3 as a result of sale under the U.P./Uttaranchal Minor Mineral Concession Rules. Learned counsel for the petitioner has urged that this Court has also allowed Writ petition No.993 of 2004, Ms. Gupta Builders Vs. State of Uttaranchal vide order dated 26-6-2007 and the facts of the case at hand are almost identical to the facts of the aforesaid writ petition already decided by this Court. Accordingly, the writ petition is allowed in terms of the Division Bench Judgment of this Court passed in Writ Petition No.993 of 2004 (M/S), Ms. Gupta Builders Vs. State of Uttaranchal and others. In view of the aforesaid judgment, no transit fees can be levied on the petitioner under the Forest Act. All pending applications stand disposed of. (B.S. Verma, J.) 16-03-2010 MK