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2003 DIGILAW 1251 (ALL)

B. AGARWAL STONE PRODUCT LTD. v. STATE OF U. P.

2003-05-22

M.KATJU, R.S.TRIPATHI

body2003
M. KATJU, J. ( 1 ) THIS writ petition has been filed for a writ of certiorari to quash the bye-laws framed by the zila Panchayat, Sonebhadra, dated 5. 12. 1994 and 3. 7. 1997, Annexures-3 and 4 to the writ petition imposing transit fee/toll tax on the transportation of sand, ballast, stone, morum, chips, etc. and for quashing the impugned order dated 31. 3. 2003, Annexure-2 to the writ petition passed by the Upper Mukhya Adhikari, Zila Panchayat, Sonebhadra. The petitioner has also prayed for a mandamus directing the respondents not to collect transit fee/toll tax on the basis of the impugned by-laws on transportation of the above materials by the petitioner from the Mines to various places within or outside district Sonebhadra. ( 2 ) HEARD learned counsel for the parties. ( 3 ) THE petitioner is a company incorporated under the Companies Act and is engaged in the business of taking mining lease and supplying sand, morum, stone, chips and transporting the minerals from the mines. It has about 64 trucks for doing the transport work. In paragraph 4 of the petition it is alleged that it has taken a mining lease for 10 years on 25. 1. 1995 of plot No, 2751 measuring 4. 54 acre in village Billi Markundi, district Sonebhadra for extracting the above items. True copy of the lease is Annexure-1 to the writ petition. The Zila Panchayat, Sonebhadra, has given contract of collection of toll tax/transit fee to respondent No. 5 under the impugned bye-laws for the year 2003, and it is alleged that the said respondent No. 5 is forcibly and illegally collecting Rs. 30 per trucks as toll tax/transit fee from the petitioners trucks carrying the above materials from the mines. A true copy of the letter dated 31. 1. 2003, issued by the upper Mukhya Adhikari, Zila Panchayat, Sonebhadra to respondent No. 5 is annexed as annexure-2 to the writ petition. A true copy of the bye-laws framed by the Zila Panchayat, sonebhadra, are Annexures-3 and 4 to the writ petition. These bye-laws purport to have been framed under Section 239 (2) of the U. P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961. It is alleged in paragraph 10 of the writ petition that the Zila Panchayat had no authority or jurisdiction to impose transit fee/toll tax on the transportation of the above materials. These bye-laws purport to have been framed under Section 239 (2) of the U. P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961. It is alleged in paragraph 10 of the writ petition that the Zila Panchayat had no authority or jurisdiction to impose transit fee/toll tax on the transportation of the above materials. It is alleged that transit fee/toll tax does not come within the ambit of Section 144 of the Adhiniyam. ( 4 ) SECTION 239 of the Act has been quoted in paragraph 12 of the petition. In paragraph 13 it is stated that a perusal of Section 239 makes it clear that it does not authorise framing of bye-laws for imposition of transit fee/toll tax for the transportation of the minerals, and hence the bye-laws are illegal. It is further alleged that the subject is covered by the Mines and Minerals (Regulation and Development) Act, 1957, which covers the entire field regarding mines and minerals. ( 5 ) A counter-affidavit has been filed on behalf of the Zila Panchayat, Sonebhadra. In paragraph 5 of the same it is stated that the fee imposed by the impugned bye-laws is being charged on the trucks, tractors, etc. carrying the materials mentioned in the bye-laws through road and sites vested in Zila Panchayat and nobody including the petitioner had ever objected to it. The bye-laws were enforced without any objection from anyone. The Zila Panchayat has auctioned the right to collect the fees to the respondent No. 5 who was the highest bidder of Rs. 2,20,000. 00. It is alleged that the bye-laws were framed within the competence of the Zila panchayat. The fees imposed are for the use of the land roads, patries and quarries specially constructed from the quarries to other metal roads, which are vested in the Zila Panchayat and are maintained by it. The Zila Panchayat has ample jurisdiction to so under Sections 142 to 145 and Section 239 of the Act. In paragraph 10 of the same it is stated that the fees charged is very nominal while the service rendered by the Zila Panchayat is much more. The Zila Panchayat incurred heavy expenditure in maintaining the roads, patries etc. from the quarries connected with other roads. The fee charged by the Zila Panchayat is earmarked for the maintenance of the roads, streets, patries, and culverts, etc. The Zila Panchayat incurred heavy expenditure in maintaining the roads, patries etc. from the quarries connected with other roads. The fee charged by the Zila Panchayat is earmarked for the maintenance of the roads, streets, patries, and culverts, etc. which are being used by the persons carrying the materials on trucks and tractors, etc. ( 6 ) A counter-affidavit has also been filed by the respondent No. 5. In paragraph 4 of the same it is alleged that the contract has been taken by the respondent No. 5 in public auction by offering highest bid of Rs. 2,20,000. 00 for the year 2002-2003. It is alleged that the said respondent is charging fee at the rate prescribed by the bye-laws in a legal manner and not forcibly or illegally. It is alleged that the bye-laws are valid and the fees are reasonable. It is also alleged that the bye-laws had been framed under Section 239 (2) and are well within the competence of the Zila panchayat. In paragraph 8 of the same, it is alleged that the fee has not been imposed on coal or other minor minerals, but it has been imposed for use of the land, roads, patries, streets and quarries which leads to the metal roads and the same are maintained by the Zila Panchayat. It is alleged that the Zila Panchayat is rendering a special service for bringing the materials from the mines to other roads including the rural areas. In paragraph 10 of the same it is alleged that the zila Panchayat is not charging any tax but is charging a fee for a service of constructing and maintaining the roads from the rural areas of the Zila Panchayat where the quarries are situated and the other roads, patries, etc. which are maintained by the Zila Panchayat and through which the loaded truck passes. In paragraph 16 of the same it is stated that the bye-laws were validly framed. Before framing the bye-laws the Zila Panchayat invited applications and published the proposed bye-laws but the petitioners or any one else filed no objections and hence the competent authority duly approved the bye-laws. ( 7 ) THE Zila Panchayat, Sonebhadra, has also filed a supplementary counter-affidavit. Before framing the bye-laws the Zila Panchayat invited applications and published the proposed bye-laws but the petitioners or any one else filed no objections and hence the competent authority duly approved the bye-laws. ( 7 ) THE Zila Panchayat, Sonebhadra, has also filed a supplementary counter-affidavit. In paragraph 3 of the same it is stated that the Zila Panchayat has constructed several kachcha and pucca roads in order to facilitate the transportation of minerals and other products from the site of the Mines to the metal roads and several crores of rupee has been spent by the Zila Panchayat on this. The Mines are situate to the interior in village areas and much away from the public road, and if a proper facility is not provided to these carriers they cannot reach the metal road from the place of excavation. A list of some places where the Zila Panchayat has constructed roads has been annexed as Annexure-S. A.-1 to the supplementary-affidavit. ( 8 ) A rejoinder-affidavit and supplementary rejoinder-affidavit has also been filed and we have perused the same. In paragraph 28 of the same it is stated that the Zila Panchayat is not rendering any specific service and it has not constructed any road or parties entitling it to charge heavy amount at the rate of Rs. 30 per truck. ( 9 ) ONE of the point urged by learned counsel for the petitioner is that the field is covered by the mines and Minerals (Development and Regulation) Act, 1957 and the Rules made thereunder. In this connection learned counsel for the petitioner has relied on a Division Bench decision of this court in Okhla Sand Supply Company v. State of U. P. , 2001 (1) AWC 803 . In paragraph. 6 of the said judgment it has been observed : "it appears to us that the impugned notification does not relate to toll tax on vehicles, pack animals or porters bringing goods to sell in the market and as such, Section 145 (b) has no application in the facts and circumstances of the case. The notification relates to imposition of toll tax in respect of mines and minerals pertaining to U. P. Minor Minerals (Concession) Rules, 1963 and the Mines and Minerals (Regulation and Development) Act, 1957. The notification relates to imposition of toll tax in respect of mines and minerals pertaining to U. P. Minor Minerals (Concession) Rules, 1963 and the Mines and Minerals (Regulation and Development) Act, 1957. In our considered view, it is not permissible for the Zila Panchayat to impose such tax relating to transportation of sand being a part of mines and minerals falling within the purview of the Mines and Minerals (Regulation and Development) Act, 1957, as well as U. P. Minor Minerals (Concession) Rules, 1963. " ( 10 ) IN our opinion the above observations in Okhla Sand Supply Company v. State of U. P. , (supra) requires re-consideration by a larger Bench, as the view taken therein does not appear to be correct. ( 11 ) IT may be mentioned that Mines and Minerals (Development and Regulation) Act, 1957, was made for development and regulation of mines and minerals. A perusal of the Act shows that the main purpose of the Act was to regulate mines and minerals and it was not basically concerned with transportation of the minerals from the Mines to the main roads. Obviously the road or link road by which the minerals are carried on the trucks to the main roads have to be maintained and developed, and this matter is not the subject-matter of the Mines and Minerals (Development and regulation) Act, 1957, or only incidentally related to it. ( 12 ) IN our opinion, the Mines and Minerals (Development and Regulation) Act, 1957 can be only incidentally and indirectly said to be related to the question of maintaining the roads and sites for the trucks, which carries the minerals. ( 13 ) IN our opinion, where roads, patries, etc. are constructed with the principal object of facilitating transportation of minerals by the Mine owner, purchasers or transporters, then a fee can be levied for the said facility. The pith and substance has to be seen in such a matter. ( 14 ) IN our opinion, the impugned levy is really a fee under Section 239 of the U. P. Kshetra panchayat and Zila Panchayat Adhiniyam and the field is not covered by the Mines and Minerals (Development and Regulation) Act, 1957. The whole issue really turns on a simple question, namely, whether the State or the Local body can charge a fee or toll for constructing and maintaining roads, patries, sites, etc. The whole issue really turns on a simple question, namely, whether the State or the Local body can charge a fee or toll for constructing and maintaining roads, patries, sites, etc. In our opinion, the impugned levy is valid and it comes within the ambit of Section 239 read with Sections 142 and 143 of the U. P. Kshetra Panchayat and Zila Panchayat Adhiniyam and it only incidentally entrenches on the Mines and Minerals (Development and Regulation) Act, 1957 and the Rules made thereunder. ( 15 ) FOR the reasons given above, we are of the opinion that the view taken by the Division Bench of this Court in paragraph 6 of the judgment in Okhla Sand Supply Company v. State of U. P. (supra) is not correct and requires reconsideration by a larger Bench. We are also of the opinion that since a large number of cases are coming before this Court regarding the power of the Zila panchayat to levy and realize such fees and fees of a similar nature, an authoritative pronouncement is required by a larger Bench to decide this controversy. ( 16 ) HENCE we are of the opinion that the following two questions of law should be referred by honble the Chief Justice to a larger Bench : (1) Whether the view taken in paragraph 6 of the judgment of the Division Bench in Okhla Sand supply Company v. State (supra) lays down the correct legal position? (2) Whether Section 239 read with Sections 142, 143 and other provisions in the U. P. Kshetra panchayat and Zila Panchayat Adhiniyam, 1961, entitle the Zila Panchayat to frame the impugned bye-laws and levy the impugned fee/toll tax? let the papers of this case be placed before Honble the Chief Justice for constituting a larger bench at an early date. .