Alok Singh, J.
1) By means of present writ petition, petitioner seeks following relief, among others:
“Issue a writ, order or direction in the nature of certiorari quashing the bye-laws dated 31.05.2012 as framed by respondent no.2 & 4 under Section
239(2) of the U.P. Kshettra Panchayat and Zila Panchayat Act, 1961 as ultra vires to the provisions of U.P. Kshettra Panchayat and Zila Panchayat
Act, 1961 (contained as Annexure no.4 to the writ petition)â€
2) According to the petitioner, respondent no.4-Zila Panchayat Dehradun has started collecting toll taxes through its agents w.e.f. 01.05.2015. Earlier,
respondent no.4-Zila Panchayat, Dehradun was not collecting toll taxes. Now, the Zila Panchayat is imposing toll tax of Rs.50/- for a six tyre truck
and Rs.100 for a ten tyres truck or more. The petitioner came to know that a Government Order dated 31.05.2012 was issued by respondent authority
under Section 239(2) of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Act, 1961 (hereinafter referred to as the Act) whereby for the
purpose of collection of toll taxes, bye-laws has been framed with regard to loading and carrying of trucks within the rural area of District Dehradun
and a provision was also made that the respondent no.4 will provide a suitable place of transaction, stand for trucks, other amenities, etc. By making
barricading on national highways at 5 different places, toll tax is being collected by the agents of respondent no.4. It is alleged by the petitioner that
petitioner’s association is having its truck stand on the land earmarked by the SIDCUL and none of the petitioner’s trucks is involved in any
activity belonging to the rural area of Dehradun and these trucks are only concentrated in Selaqui industrial area, which is a notified area and does not
come under the purview of rural area or the area of Zila Panchayat.
3) Learned counsel for the petitioner submitted that the Zila Panchayat is not empowered to make bye-laws for collection of tax from the trucks plying
on the national highways; the Zila Panchayat can make bye-laws in respect of the list/items mentioned in sub-section (2) of Section 239 of the Act:
national highways do not come under the purview of sub-section (2) of Section 239 of the Act; and thus the bye-laws for collection of toll tax on
national highways, which were framed under the garb of the Act, is totally illegal; the trucks of petitioners are being operated from Selaqui industrial
area, which is notified by SIDCUL as ‘industrial area’; under Section 2(10) of the Act, ‘rural area’ has been defined, which means the
area of a district excluding every municipality, notified area, town area, cantonment and area of Municipal Corporation situated in the district; the Zila
Panchayat has no power to levy toll tax for the use of road within the industrial area/notified area as Silaqui industrial area has been earmarked and
notified by the Government and SIDCUL is the nodal agency for maintenance and to provide all amenities, i.e., roads, water supply, street lighting,
power supply, sewerage, drainage, treatment, disposal of industrial waste, etc.
4) Learned counsels for the respondents refuted the contentions made by learned counsel for the petitioner and supported the impugned bye-laws by
which tax is being imposed upon the trucks for plying on national highways.
5) So far as the prayer declaring the impugned bye-laws as ultra vires is concerned, learned counsel for the petitioner did not want to press the same.
Thus, the prayer to declare the impugned bye-laws as ultra vires is dismissed as withdrawn. Learned counsel for the petitioner is only pressing for a
writ of certiorari quashing the bye-laws dated 31.05.2012 framed by the respondent authority.
6) The scope and authority of the Zila Panchayat to frame bye-laws appears to be very much restricted and circumscribed by the provision of Section
239 of the Act. The provisions of Section 239 of the Act is reproduced hereinbelow for convenience : -
“239. Power of Zila Panchayat to make bye -laws - (1) A Zila Panchayat may, and where required by the State Government shall, make bye-laws
for its own purposes and for the purposes of Kshettra Panchayats, applicable to the whole or any part of the rural area of the district, consistent with
this Act and with any Rule, in respect of matters required by this Act to be governed by bye-laws and for the purposes of promoting or maintaining the
health, safety and convenience of the inhabitants of the rural area of the district and for the furtherance of the administration of this Act in the khand
and the district.
(2) In particular and without prejudice to the generality of the power conferred by sub-section (1), a Zila Panchayat may, in the exercise of the said
power, make any bye-laws described in the list below:
A. Building . …………………………
B. Drains, privies, cesspools, etc. ………………………………………………………..
C. Steets
(a) Determining the information and plans to be furnished to the Kshetra Panchayat under Section 176:
(b) Permitting, prohibiting or regulating the use or occupation of any or all public streets or places by itinerant vendors or by any person for the sale of
articles, or for the exercise of any calling or for the setting up of any booth or stall and providing for the levy of fees for such use or occupation; and
(c) Regulating the conditions on which permission may be given by the Kshettra Panchayat under Section 181 for projections over streets and drains
and by the Zila Panchayat under Section 209 for the temporary occupation of streets.â€
7) Perusal of the aforesaid provisions of Section 239 of the Act shows that the Zila Panchayat is authorized to make bye- laws in respect of the
items/list mentioned in Section 239(2) of the Act. As the roads and national highways do not come under the purview of Section 239(2) of the Act,
therefore, the Zila Panchayat is not empowered to impose toll tax from the trucks plying on the National Highways. The main purpose of imposition of
toll tax is to recover the cost of construction and maintenance of a road/national highway. Admittedly, the roads/national highways have not been
constructed by the Zila Panchayat.
8) Section 239(1) of the Act, which is the source of power of Zila Panchayat to frame bye-laws, provides that a Zila Panchayat may, and where
required by the State Government shall, make bye-laws for its own purposes. Thus, the Commissioner, Garhwal Mandal (respondent no.2 herein) has
no powers to frame bye-laws and to direct the Zila Panchayat to levy toll tax under Section 239 of the Act.
9) The aforesaid view is fortified by a decision of Hon’ble Allahabad High Court in Okhla Sand Supply Co. and another vs. State of U.P. &
others, 2001(1) A.W.C. 803.
10) There is another aspect of the matter. It needs to be reproduced here the provision of Section 37 of the Act, which is read as under:-
“37. Savings in respect of jurisdiction of Zila Panchayat and Kshettra panchayats. â€" Nothing in this Act shall â€
(1) confer on any Kshettra Panchayat or Zila Panchayat any right in respect of any work or institution carried out and maintained by any agency not
under the control of such Kshettra Panchayat or Zila Panchayat; or
(2) entitle a Kshettra Panchayat or Zila Panchayat to exercise within the limits of any Municipal Corporation, municipality, notified area, cantonment
or town area any authority which is vested in the Municipal Corporation, Municipality, notified area committee, cantonment board, district magistrate,
any other magistrate or town area committee, as the case may be, provided that the Kshettra Panchayat or Zila Panchayat may nevertheless â€
(a) deleted
(b) construct, maintain and control within the aforesaid limits any school, library, ………………
(c) ……………………
11) The aforesaid Section 37 specifically provides that nothing in this Act shall entitle the Zila Panchayat to exercise within the limits of any Municipal
Corporation, municipality, notified area, etc. The imposition of toll tax has been made applicable within the ‘rural area’ of Zila Panchayat.
‘Rural area’ has been defined under Section 2(10), which means the area of a district excluding every municipality, notified area, town area,
cantonment and area of Municipal Corporation situated in the district.
12) Thus, the Zila Panchayat has no power to levy toll tax for the use of road within the industrial area/notified area as Silaqui industrial area has been
earmarked and notified by the Government and SIDCUL is a nodal agency for maintenance of industrial area and for providing all amenities.
Therefore, this Court holds that the Zila Panchayat has acted beyond its authority in framing the impugned bye-laws.
13) In the light of observations made above, the writ petition is liable to be succeeded. The writ petition is allowed. The impugned bye-laws dated
31.05.2012 framed by the respondents is hereby quashed.
