By the Court.—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 Company and another v. State of U.P. and others, 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 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.”

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 Adhiniyam, 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 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 (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 falling 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 referring order has been made in Writ Petition No. 18035 of 2003. Civil Misc. Writ Petition No. 587 of 2003 (Tax) was also filed for quashing the aforesaid bye-laws framed by the Zila Panchayat and the said petition was also connected with Civil Misc. Writ Petition No. 18035 of 2003 and on 22-5-2003 the same order as in Civil Misc. Writ Petition No. 18035 of 2003 was passed in the said petition.

4. 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 or truck 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 contractors 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