B. AGARWAL STONE PRODUCT LIMITED THROUGH ITS MANAGING DIRECTOR, BIRSH BHAN AGARWAL S/O THANDI RAM AGARWAL Vs. STATE OF U.P. THROUGH PRINCIPAL SECRETARY, PANCHAYATI RAJ ANUBHAG, GOVERNMENT OF U.P.

JUDGEMENT

(1.) A Division Bench of this Court, while examining the validity of the bye -laws framed by the Zila Panchayat, Sonebhadra relating to levy of fee on tractor and truck used for collecting 'gitti', stones, boulders, 'surkhi', coal and coal dust from the mining areas situated within the rural areas of Zila Panchayat Sonebhadra and transporting or storing the said minerals within or outside the district, expressed its inability to agree with the view taken in paragraph 6 of the judgment of another Division Bench of this Court in Okhla Sand Supply Co. and Anr. v. State of U.P. and Ors. 2001 (1) AWC 803 and has, therefore, referred the following two questions of law to the larger Bench: (1) Whether the view taken in paragraph 6 of the judgment of the Division Bench in Okhla Sand Supply Co. v. State (supra) lays down the correct legal position? (2) Whether Section 239 read with Sections 142, 143 and Ors. 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

(2.) IN the case of Okhla Sand (supra), a Division Bench of this Court, while considering a similar notification issued by the Zila Panchayat, Gautam Budh Nagar held that the bye -laws were beyond the purview and ambit of the provisions of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Aahiniyam, 1961 (hereinafter referred to as the 'Zila Panchayat Act') and that such tax could not be imposed by the State Legislature. The relevant paragraph 6 of the said judgment is quoted below: It appeals to us the 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 n 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 (Regulations 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 felling within the purview of the Mines and Minerals (Regulation and Development) Act, 1957, as well as U.P. Minor Minerals (Concession) Rules, 1963.

(3.) THE notification dated 5.12.1994 containing the bye -laws that had been framed by the Zila Panchayat. Sonebhadra was published in the U.P. Gazette on 10.12.1994 Clause 1 of the bye -laws states that the bye -laws shall be called the bye -laws empowering the Zila Panchayat, Sonebhadra to levy fee on trucks and tractors engaged for transporting 'gitti', stone, boulders, 'surkhi', lime, coal and coal dust collected from the mining places situated within the rural areas of Zila Panchayat, Sonebhadra to places within or outside the district. Clause 3 provides that every person who on his own or through labourers collects gitti, stone, boulders, lime, coal and coal dust from the mining places of rural areas falling within district Sonebhadra and transports them by land from the rural areas by tractor of luck shall pay the prescribed fee to the Zila Panchayat, Sonebhadra and that such fee shall be paid at the place fixed by the Zila Panchayat, Sonebhadra to such officers or contractor authorised by the Zila Panchayat. Clause 4 stipulates that the fee per trip per tractor shall be Rs. 10/ - while fee per trip per truck shall be Rs. 20/ -. These fees were subsequently enhanced to Rs. 15/ - and Rs. 30/ - respectively by the notification dated 23.8.1999. Clause 11 of the Bye -laws provides that if there is any default of payment of fee while taking the aforesaid minerals for the personal use or sale, the mineral shall be confiscated and Clause 12 provides that in case the fee is not paid within a period of 15 days, then the mineral shall be sold for realisation of the fees. - - - -