Jharkhand High Court
Ntpc Limited Through Rama Krishna ... vs The State Of Jharkhand Through ... on 10 January, 2022
Author: Rajesh Shankar
Bench: Rajesh Shankar
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 4036 of 2021
With
I.A. No. 108 of 2022
NTPC Limited through Rama Krishna Adhikari, AGM (mining) NTPC
Limited, Hazaribagh ... ... Petitioner
-Versus-
The State of Jharkhand through Principal Secretary, Department of Forest,
Environment & Climate Change, Ranchi & Ors. ... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
For the Petitioner : Mr. Prashant Pallav, Advocate
For the Respondents : Mr. Ravi Prakash Mishra, A.C. to A.A.G.-II
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05/10.01.2022 The present case is taken up through video conferencing.
2. The present writ petition has been filed for quashing letter no. 4470 dated 23.12.2020 (Annexure-10 to the writ petition) issued by the Divisional Forest Officer, Hazaribagh West Division, District- Hazaribagh (the respondent no. 3) whereby the Executive Director, Pakri Barwadih Coal Mining Project, N.T.P.C. Limited, Coal Mining Projects, Sikri, Barkagaon, Hazaribagh has been informed that since coal is a forest produce, the transit permit fee would be leaviable/payable on 100% of its quantum irrespective of the fact that the same has been excavated from the forest area or non-forest area.
3. The petitioner has also filed an interlocutory application being I.A. No. 108 of 2022 for staying the aforesaid impugned letter dated 23.12.2020 issued by the respondent no. 3.
4. Learned counsel for the petitioner submits that the respondent no. 3 while issuing the impugned letter dated 23.12.2020 has not properly interpreted the judgment of Hon'ble Supreme Court rendered in Civil Appeal No. 14874/2017 (State of Uttarakhand & Ors. Vs. Kumaon Stone Crusher) reported in (2018) 14 SCC 537. Though as per the said judgment of the Hon'ble Supreme Court, "coal" is a forest produce, yet for taking the transit permit, transportation of the same has to originate from forest area within the State or outside the State. The Joint Secretary, Department of Forest, Environment and Climate Change, Government of Jharkhand, in letter no. 3145 dated 13th October, 2020 has though referred paragraph nos. 215.1(b) [mentioned as paragraph no. 221(1)(b)], but has perhaps overlooked paragraph no. 215.3 of the said judgment, wherein the Hon'ble supreme Court has concluded as under:
"215.3. The words "brought from" as occurring in Section 2(4)(b) of the 1927 Act mean brought from forest from where forest produce has originated. The words "brought from forest" cannot be read as "brought -2- through forest". We, however, clarify that for an item to be treated as forest produce, its origin may be in any forest within the State of U.P. or in a forest outside the State of U.P."
5. It is further submitted that the word 'Vanopaj' (forest produce) mentioned in rule 3(Ka) of Jharkhand Forest Produce (Regulation of Transportation) Rules, 2020 (in short, "the Rules, 2020) has been given the same meaning as defined in Section 2(4)(b) of the Indian Forest Act, 1927 (in short, "the Act, 1927"). Section 2(4)(b) of the Act, 1927 defines forest produce as under:
"2. Interpretation clause.-
(4) forest produce includes;
(a). ..................
(b). the following when found in, or brought from, a forest, that is to say,-
(i) ...............
(ii) ..............
(iii) .............
(iv) peat, surface soil, rock, and minerals (including limestone, laterite, mineral oils and all products of mines or quarries);"
6. Learned counsel for the petitioner while referring the supplementary affidavit dated 05.01.2022 also submits that environmental clearance was granted to the petitioner by the Ministry of Environment, Forest and Climate Change, Government of India vide letter no. J-11015/692/2007-IA-II(M) dated 19.05.2009 restricting to the explored lease area of 3319.42 hectares (phase-1 for 39 years) out of which 643.9 hectares is forest land. The forest clearance for 1026.438 hectares of land was accorded by the said ministry vide letter no. F.No. 8-56/2009-FC dated 11.05.2010. An additional area over and above 643.9 hectares was made available on account of the fact that at the time of grant of forest clearance, 'jungle-jhari' was also considered as forest land and therefore, forest clearance was granted for 1026.438 hectares. Thus, the mining from forest land increased to 1026.438 hectares out of the total area of 3319.42 hectares. It is further submitted that lease for mining was granted for 39 years and the coal mining is being carried on both forest land as well as non-forest land at NTPC Pakri Barwadih Coal Mining Project. The average charge towards transit permit fee while taking into consideration the coal produced form forest land will come to about 40% of the total produced coal based on the period for which coal block has been allocated and the available coal reserve. The petitioner- company was initially paying the coal transit fee amounting to Rs.2,11,00000/- based on the consideration that forest land would come to about 40%. Under the aforesaid factual background, the issuance of the impugned letter -3- dated 23.12.2020 by the respondent no. 3 observing inter alia that the transit permit fee would be levied to the petitioner on the entire (100%) quantum of coal excavated and transported from the concerned coal mine, is illegal and arbitrary. It is also submitted that this Court while entertaining similar writ petitions being W.P.(C) No. 3505 of 2020 (Eastern Coalfields Limited Vs. The State of Jharkhand & Ors.) with W.P.(C) No. 3529 of 2020 (Eastern Coalfields Limited Vs. The State of Jharkhand & Ors.), vide order dated 15.12.2020, has passed interim order directing the respondent authorities not to take coercive action against the petitioners of the said writ petitions for transportation of coal from their respective mines.
7. Mr. Ravi Prakash Mishra, learned A.C. to A.A.G.-II appearing on behalf of the respondents, submits that the impugned letter dated 23.12.2020 issued by the respondent no. 3 making observation that the transit permit fee would be leaviable on 100% quantum of coal excavated and transported from the petitioner's concerned coal mine irrespective of the fact that the coal is being excavated and transported from the forest area or otherwise, is justified and legal. He, however, prays for and is allowed six weeks' time to seek instruction and file counter affidavit.
8. Having heard the learned counsel for the parties and looking to the content of the present writ petition, supplementary affidavit dated 05.01.2022 as well as I.A. No. 108 of 2022 filed on behalf of the petitioner, the following interim arrangement is being made till further order:-
(i) The petitioner shall continue to make payment of transit permit fee for 40% of the total coal excavated and transported from the concerned coal mines as it had paid to the respondent no. 3 till January, 2021.
(ii) The petitioner shall duly furnish the details of the entire coal to be excavated and transported by it monthly to the respondent no. 3 to enable the said authority to verify payment of the transit permit fee for 40% of the said quantum.
9. I.A. No. 108 of 2022 stands disposed of.
10. At the request of the learned counsel for the petitioner, put up this case along with W.P.(C) No. 3505 of 2020 and other analogous cases after six weeks under appropriate heading.
(Rajesh Shankar, J.) Ritesh