CHANGA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri P.N. Saxena, learned Senior Advocate assisted by Sri Vishal Mohan Gupta for the petitioner, Sri S.P. Shukla learned Counsel appearing for the respondents No. 6 and 7 as well as Sri Neeraj Upadhyaya, learned Additional, Chief Standing Counsel representing the respondents No. 1 to 5. Counter-affidavit and rejoinder affidavit have been exchanged between the parties and with the consent of the learned Counsel for the parties, the writ petition is being finally decided.

(2.) By this writ petition, the petitioner has prayed for quashing the order dated 29.5.2011 passed by the District Magistrate, Mahoba, directing the Upper Mukhya Adhikari to get unauthorized barriers closed and take action against the concerned persons who are realizing Tahbazari more than the prescribed rate and are making realisation forcibly by stick The order dated 15.6.2011 of the Upper Mukhya Adhikari has also been challenged by which the petitioner has been directed that he may not use any kind of force for realization of Tahbazari fee from vehicles carrying Balu, Bajra, Moram, Patthar, Gitti etc. The petitioner has been also directed not to realise the fee in excess to the prescribed rate.

(3.) We have heard learned Counsel for the parties and have perused the record. Zila Panchayat has framed byelaws under Section 239 of the U.P. Kshetra Panchayat and Zila Panchayat Act, 1961 for collection of fee from vehicles which are transporting minor minerals from the territory of Zila Panchayat, Mahoba. From the contract which has been filed by the petitioner as Annexure- 1 to the writ petition, it is clear that the contract was granted to the petitioner to realize Tahbazari fee from vehicles carrying out sand, Bajra, Moram from the rivers and ponds in the rural area of the district. Further similarly, the petitioner was allowed to realize Tahbazari from the vehicles carrying out Gitti and boulders from the hills in the rural areas of Mahoba. The right to realize Tahbazari is thus confined to the vehicles which are taking out sand, Moram and Bazra from the rivers and ponds of the district and similarly from the vehicles taking out boulders and gitti from the hills/lease area situated in the rural area of district Mahoba. The petitioner himself has brought on record, a copy of the Government order dated 14.7.2010 by which Upper Mukhya Adhikari, Zila Panchayat, Mahoba has been informed that under the Government order dated 7.7.2008, Zila Panchayat cannot realize any fee/tax royalty etc. by putting barrier. The Government order however, clarified that there is no restraint on realizing fee without putting barriers. The question of right of realizing of Tahbazari fee according to the byelaws framed under Section 239 of 1961 Act by Zila Panchayat came for consideration before the Division Bench of this Court in Subhash Tiwari v. State of U.P. and others, 2010 5 ADJ 181. The Division Bench had occasion to consider the Government order dated 7.7.2008 by which the State Government has directed removal of all barriers in the State. A contractor of Zila Panchayat, who was granted contract for collection of fee from the vehicles carrying Gitti, Patthar, Boulder, Surkhi, Chuna, Koyla, Bhassi etc. from the mining area situated within the rural areas of Zila Panchayat, Sonebhadra , challenged the Government order dated 7.7.2008 on the ground that the Government order dated 7.7.2008 cannot take away right of contractor to realize Tahbazari as per the contract granted by Zila Panchayat by putting the barriers. This Court upheld the Government order by which State Government has directed removal of al the barriers. This Court held that although contractor has no right to make any realization by putting barriers but there is no prohibition in realization of revenue/ tax, fee, royalty etc. Following was laid down in paragraph 32 :