SUDHIR KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) This appeal is directed against the order of the trial court dated 4.5.2000 rejecting the application of the appellant seeking injunction restraining the defendant-respondents from interfering in realising toll tax in respect of sand and moram at the Markundi and Tilgurva barriers, district Sonbhadra.

(2.) The controversy between the parties arises on these facts. The Zila Panchayat, Sonbhadra, decided to auction the right to realise toll tax for the barriers Markundi and Tilgurva, district Sonbhadra to the bidders by asking them to participate in the auction. It published the auction notice in its office on 19.2.1999 and also advertised in the newspaper on 17.2.1999. On 4.3.1999 auction took place. Sudhir Kumar Misra, the appellant, made the highest bid for sand and moram for Rs. 5,70,000 for the year 1999-2000. An agreement was executed in respect of the right to realise toll tax on 2.4.1999. In para 2 of the agreement, it was incorporated that for the first year, i.e., for the period 1.4.1999 to 31.3.2000 the amount of Rs. 5,70,000 (auction money) shall be payable. In para 3, it was stated that in the second year (1.4.2000 to 31.3.2001) 20% of the enhanced amount shall be payable and for the third year (1.4.2001 to 31.3.2002) 20% of the enhanced amount of the second year shall be payable. In paragraph 6 of the agreement it was provided that enhanced rate of toll tax could be realised after the rates are enhanced after amendment of bye-law on obtaining approval of the Commissioner. Paragraph 12 of the agreement provided that clauses 3, 4 and 6 of the agreement will be applicable only after the publication of amended bye-law in the Gazette otherwise the period of the agreement shall remain operative till 31st March 2000.

(3.) The appellant deposited the amount of Rs. 5,70,000 and he continued to realise toll tax at the barriers. The Zila Panchayat, district Sonbhadra, submitted the proposed amended bye-law before the Commissioner who approved it on 3rd July, 1999 and it was published in the Gazette dated 28.8.1999 whereby the bye-law was amended and the rates of toll tax were increased and further it provided that the period of theka can be made for three years on the condition that in the second year 20% of the enhanced amount of the first year and for the third year again 20% of the enhanced amount of second year is offered by the contracting party.