IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. Nos. 697, 698, 699 & 700 of 2004 Date of decision: 24.12.2008 1. CWP No. 697 of 2004 Kartar Singh ..Petitioner Versus The State of H.P. and others ..Respondents 2. CWP No. 698 of 2004 M/s Gian Chand ..Petitioner Versus The State of H.P. and others ..Respondents 3. CWP No. 699 of 2004 Rajinder Singh .. Petitioner Versus The State of H.P. and others ..Respondents 4. CWP No. 700 of 2004 Ranjjit Singh ..Petitioner Versus The State of H.P. and others ..Respondents Corum: The Hon’ble Mr. Justice R. B.Misra, J. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 For the Petitioners: Mr. M.M.Khanna, Senior Advocate, with Mr.Sanjeev Kuthiala and Ms. Pushpa Atri, Advocates. For the Respondents: Mr.P.K.Sharma, Additional Advocate General with Mr.P.M. Negi, Deputy Advocate General. ____________________________________________________________ Per Surjit Singh, Judge(Oral) By this common judgment, we are deciding four Civil Writ Petitions, i.e. CWP Nos. 697, 698, 699 and 700 of 2004, as the same question of law, based on similar facts, arises in all of them. First we may notice the relevant facts. Petitioners are agents of farmers, on whose lands trees of Khair, which are used for manufacture of Katha, stand. The Government of Himachal Pradesh, in exercise of its power under Section 42-B of the Himachal Pradesh Sales Tax Act, issued Notification dated 7th February, 1992, giving concession in the rate of tax on sale to an entrepreneur of goods (other than those specified in items No. 25 and 34 of Schedule A, appended to the Act), specified in its certificate of registration, for use by him, as raw material, in the manufacture in Himachal Pradesh of any goods (a) for sale in the State of Himachal Pradesh, or (b) for sale in the course of inter-State trade or commerce. 2. Item No. 34 of Schedule A, appended to the Act is timber, but not including converted timber. Petitioners had been selling converted Khair trees for manufacture of Katha to entrepreneurs and enjoying the concession granted vide aforesaid Notification dated 7th February, 1992. In the year 1999, the State Government issued another 3 Notification dated 23rd July, 1999, in exercise of a power under Section 42-B of the H.P. General Sales Tax Act amending the earlier Notification, dated 7th February, 1992, thereby, inter alia, including converted timber into definition of timber within the meaning of the Notification, which had the effect of taking away converted timber from the purview of concession granted vide Notification dated 7th February, 1992. Thereafter notices were issued to the petitioners for assessing to tax the converted Khair trees sold by them to the entrepreneurs, according to normal sale tax rate and ultimately assessment orders were also passed. Though remedy of appeal against those orders was available to the petitioners under Section 30 of the H.P. General Sales Tax Act, they chose not to avail that remedy. They filed the present writ petitions challenging the amending Notification dated 23rd July, 1999, whereby converted timber has been included within the meaning of timber. 3. Amending Notification dated 23rd July, 1999 has been challenged on the ground that the same is ultra vires of the Constitution of India. 4. Reply has been filed on behalf of the respondents in which a preliminary objection has been raised that the writ petition is not maintainable as the remedy of appeal was available to the petitioners. On merit, it has been stated that earlier the petitioners had been availing the concession because the converted timber, as per Entry No. 34 of the Schedule A to the Act, is excluded from the term timber, but on account of the amendment, converted timber has also been 4 included in the term of timber, so the same stands excluded from the benefit given by Notification dated 7th February, 1992. 5. We have heard the learned counsel for the parties and gone through the record. 6. When confronted with the objection raised by the respondents that the petitioners have sought to invoke the jurisdiction of this court under Article 226 of the Constitution of India, without availing the alternative remedy of appeal, learned counsel for the petitioners submitted that the petitioners may be granted the relief of quashing the amending Notification of 23rd July, 1999 alone and the prayer for remaining reliefs may be taken to have been given up. 7. We do not find any merit in the contention of the petitioners that the Notification dated 23rd July, 1999 is ultra vires. No body has the right to seek any exemption. The State, on its own, with a view to encouraging the entrepreneurs to set up industry in the State granted concession in the rate of sales tax in respect of certain goods used as raw material by entrepreneurs vide Notification dated 7.2.1992 and while granting that concession, it excluded items No. 25 and 34 of Schedule A to the H.P. General Sales Tax Act from the goods, on the sale of which concession was available. Item No. 34 of the said schedule is timber, but it does not include converted timber, meaning thereby that the entry pertains to only the standing timber trees. 8. However, the definition of timber, as given in the General Sales Tax Act, vide Section 2 ( ll ) and its definition in Section 2(6) of the Indian Forest Act, which are verbatim the same, includes not only the 5 standing trees, but also the fallen and the felled trees and also woods which are cut up or fashioned or hollowed out for any purpose or not. That means, the general definition of timber not only under the Indian Forest Act, 1927, but also for the purposes of H.P. General Sales Tax Act, includes converted timber. It is only in Entry No. 34 of Schedule A to the H.P. General Sales Tax Act that converted timber has been excluded from timber. With a view to excluding not only the standing trees, but also the converted timber, amending Notification, dated 23rd July, 1999 has been issued so that the concession is rendered inapplicable not only to standing furniture trees, but also to converted timber. 8. Timber and timber trees, as per dictionary meaning as also the interpretation of these words by various judgments, including those of the Supreme Court, are those trees or the wood of those trees which are used as material for construction of houses or for manufacture of items of furniture. Trees, the wood of which is not used for the aforesaid two purposes, are not timber trees nor is the wood of such trees timber. Analysed on this touch-stone, Khair trees may not be timber trees and similarly, the wood of such trees may also not be timber. In support of this observation of ours, we may refer to a Division Bench Judgment of the High Court of Punjab and Haryana in Panwar Timbers Vs. State of Punjab (207) 30 PHT 264 (P&H). 9. The Government, which granted concession vide Notification dated 7.2.1992, on its own could not recall that Notification or amend the same with a view to narrowing down or expanding its scope. 6 Therefore, it cannot be said that the amending Notification dated 23rd July, 1999 is ultra vires. 10. For the foregoing reasons, we do not find any merit in the present writ petitions. So the same are dismissed. However, petitioners may, if so advised, appeal to the appellate authorities under the H.P. General Sales Tax Act, challenging the orders of assessment, passed by the Assessing Authority. If such appeals are filed, the period spent by the petitioners, in pursuing these writ petitions, will be excluded while computing limitation. All the aforesaid writ petitions are disposed of. ( R. B. Misra ), J. December 24, 2008(K) ( Surjit Singh ), J.