# Gitti Balu Truck Operator Association Varanasi v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 577
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-03
- **Case number:** Civil Misc. Writ Petition No. 18330 of 2014
- **Bench:** Amreshwar Pratap Sahi, Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gitti-balu-truck-operator-association-varanasi-v-state-of-u-p-ors-42820
- **Pages:** 5

## Headnote

578 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Indresh Kr. Singh, Sri Syed Nadeem
Ahmad, Sri V.K. Chandel, Sri K.D. Rai, Sri
Dev Dayal

U.P. Kshetra Panchayat & Zila Panchayat
Adhiniyam 1961-Section 239- Validity of
clause 4 of bye-laws-empowering zila
parishad to realize transportation feechallenged on ground in absence of any
mining activity within territorial limittransportation fee from those vehicle
passing through territorial limit concern
parishad-provision of clause 4 ultra
virus-held in view of full Bench decisionpetition dismissed.

Held: Para-8
The ratio of the said Full Bench judgment
clearly states that over and above the
powers conferred under Section 239, the
Zila Panchayat can frame a bye-law and
impose a fee as has been done in the
present case as well in exercise of the
powers under Section 142 of the Act. The
answer of the full bench is therefore
complete
and
squarely
repels
the
submissions raised by the counsel for the
petitioner. Thus, there is no ground to
strike down the impugned bye-laws
merely because Section 142 has not
been mentioned in the notification.

Case Law Discussed:
2007(68) ALR 688

## Text

2 All] Gitti Balu Truck Operator Association Varanasi Vs. State of U.P. & Ors.
577
Commissioner, Income Tax, Chandigarh
v. Pearl Mechanical Engineering and
Foundry Works Pvt. Ltd. A Constitution
Bench of the Hon'ble Apex Court in
Commissioner of Income Tax, Mumbai v.
Anjum
M.H.
Ghaswala
and
Ors.
reaffirmed the general rule that when a
statute vests certain power in an authority
to be exercised in a particular manner
then the said authority has to exercise it
only in the manner provided in the same
itself.

28. If Section 31 (4) of the Act requires
the Selection Committee for the post of
Reader of the University to comprise of three
experts to be nominated by the Chancellor
then no other Selection Committee can be
constituted which does not include such
nominees from the Chancellor.

29. We, therefore, find no substance
in the contention raised on behalf of the
petitioner.

30. Although we are of the opinion
that it is hard to remove the petitioner
because of the fault committed by the
University
in
the
matter
of
the
constitution of the Selection Committee
after more than 12 years of the alleged
selection but hardship to the petitioner
cannot be a ground to permit illegal
appointments.
We
may
not
direct
recovery of the salary paid to the
petitioner
because
of
his
illegal
appointment but his continuance will not
be perpetuated by this Court any further.

31. So far as the plea that other
appointments of like nature are being
permitted by the University to continue
and no action has been taken against them
is concerned, we clarify that having
received the order of the Chancellor now
which has clarified the position with regard
to
the
constitution
of
the
Selection
Committee and effect on selection made with
reference to illegally constituted Selection
Committee, the University must revisit all
such appointment which has been made
contrary to Section 31 of Act and shall deal
with him uniformly without any favoritism.

32. Learned counsel for the petitioner
has placed reliance upon Section 66 of the
Act for submitting that even if certain
unauthorized person has taken part in the
Selection Committee, proceedings may not
be invalid. The contention has only been
raised on behalf of the petitioner to be
rejected. The constitution of the Selection
Committee with experts to be nominated by
the Chancellor is statutory requirement and if
no expert were asked for or appointed by the
Vice Chancellor, it cannot be said that there
was a defect covered by Section 66 (b) of the
Act.

33. For the reasons recorded above,
the writ petition is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.04.2014

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE VIVEK KUMAR BIRLA, J.

Civil Misc. Writ Petition No. 18330 of 2014

Gitti Balu Truck Operator Association
Varanasi ......................... Petitioner
Versus
State of U.P. & Ors. ......Respondents

Counsel for the Petitioner:
Sri N.L. Pandey, Sri Suyash Pandey

Counsel for the Respondent:
C.S.C., Sri V.K. Singh, Sri R.P. Srivastava
578 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Indresh Kr. Singh, Sri Syed Nadeem
Ahmad, Sri V.K. Chandel, Sri K.D. Rai, Sri
Dev Dayal

U.P. Kshetra Panchayat & Zila Panchayat
Adhiniyam 1961-Section 239- Validity of
clause 4 of bye-laws-empowering zila
parishad to realize transportation feechallenged on ground in absence of any
mining activity within territorial limittransportation fee from those vehicle
passing through territorial limit concern
parishad-provision of clause 4 ultra
virus-held in view of full Bench decisionpetition dismissed.

Held: Para-8
The ratio of the said Full Bench judgment
clearly states that over and above the
powers conferred under Section 239, the
Zila Panchayat can frame a bye-law and
impose a fee as has been done in the
present case as well in exercise of the
powers under Section 142 of the Act. The
answer of the full bench is therefore
complete
and
squarely
repels
the
submissions raised by the counsel for the
petitioner. Thus, there is no ground to
strike down the impugned bye-laws
merely because Section 142 has not
been mentioned in the notification.

Case Law Discussed:
2007(68) ALR 688

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard Sri N.L. Pandey, learned
counsel for the petitioner, Sri V.K. Singh,
learned senior counsel assisted by Sri Ravi
Prakash Srivastava, Sri V.K. Chandel, Sri
Indresh Kumar Singh and Sri Dev Dayal for
the respective Zila Panchayats who have
been arrayed as respondents no.6 to 9. We
have also heard the learned standing counsel
for the respondents no.1 to 5.

2. The issue raised in this petition is
the
power
and
authority
of
the
respondents-Zila
Panchayats
to
realize
transportation fee from vehicles loaded with
mining material which are being transported
from other districts and are passing and
repassing through the territorial limits of the
respective Zila Panchayats.

3. The grievance of the petitioner is,
therefore, confined to clause 4 of the byelaws that have been appended as
Annexure 1 to the writ petition to urge
that if any mining material is being
excavated from within the district and is
being transported outside the district, then
the Zila Panchayat of that district can
realize such transportation fee, but the
clause which authorizes the charging of
such transportation fee from vehicles
coming from outside the district is ultra
vires the bye-laws itself as well as Section
239 of the U.P. Kshetra Panchayat and
Zila Panchayat Adhiniyam, 1961.

4. Learned counsel submits that
since the bye-laws are confined in its
operation for the movement of vehicles
within the Zila Panchayat limits, the same
cannot be applied to vehicles that are just
passing through the limits of the Zila
Panchayat without involved in any
activity of mining within the said district.

5. The argument is, therefore, pure
and simple. If the mining activity is being
carried
out
within
the
same
Zila
Panchayat where the vehicle is passing or
repassing then only the transport fee can
be charged and not otherwise.

6. The matter had been heard earlier
and Sri V.K. Singh, learned senior
counsel, had cited the decision in the case
of B. Agarwal Stone Product Ltd. Vs.
State of U.P., 2007 (68) ALR 688, to urge
that this issue has already been answered
2 All] Gitti Balu Truck Operator Association Varanasi Vs. State of U.P. & Ors.
579
by the Full Bench decision categorically
laying down that even if the bye-laws
cannot be located to the exercise of
powers
of
framing
bye-laws
under
Section 239 of the 1961 Act, yet the
provisions of Section 142(1) of the same
Act authorizes the Zila Panchayat to
charge the transportation fee from any
vehicle passing or repassing through the
district even if the excavation or mining
operations are not within the same
district.

7.
Having
considered
the
submissions raised and having perused
the Full Bench judgment, the ratio of the
said Full Bench as answered can be
gathered
from
a
bare
perusal
of
paragraphs 4, 48, 49 and 51 of the
judgment that are extracted hereinunder:-

"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',
stones, 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 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.

48. Dr. L.M. Singhvi, learned Senior
Counsel for the petitioner submitted that
the impugned bye-laws are beyond the
powers of the Zila Panchayat as the
transportation
of
mineral
is
not
contemplated by sections 142, 144 and
239
of
the
Zila
Panchayat
Act.
Elaborating his submission, he contended
that section 142(1) of the Act is not
attracted inasmuch under this section the
Zila Panchayat can charge fee to be fixed
by the bye-laws for use and occupation of
any immovable property vested in, or
entrusted to the management of the Zila
Panchayat including any public road or
place by which it allows the use or
occupation
whether
by
allowing
a
projection thereon or otherwise but the
use or occupation which fall under the
expression "or otherwise" are specifically
provided for under the provision of
section 239 and do not provide for
framing bye-laws for imposing fees for
passing of vehicles on public roads. His
contention, therefore, is that the scope of
"or otherwise" mentioned in section 142
of the Act is defined in section 239 and
for the purposes of the present case is
under section 239 (2) C namely Streets
but this does not contemplate the
580 INDIAN LAW REPORTS ALLAHABAD SERIES
imposition of fee by Zila Panchayat
merely on passing of vehicles on public
road and, therefore, the levy of fees is
without jurisdiction.

49. Learned Advocate General Sri
S.M.A. Kazmi and Sri Ravi Kiran Jain,
learned Senior Counsel for the Zila
Panchayat on other hand, submitted that
section 142 (1) of the Zila Panchayat Act
is
an
independent
provision
which
authorises the Zila Panchayat to levy fee
for use or occupation of immovable
property of Zila Panchayat including
public roads or places and section 239 (2)
has no application since bye-laws under
this sub-section are framed without
prejudice to the generality of the power
conferred on the Zila Panchayat by subsection (1) or section 239. They further
contended that under section 239 (1) the
Zila Panchayat could make bye-laws
applicable to the whole or any part of the
rural area of the district in respect of
matters required by the Act to be
governed by bye-laws and since under
section 142, the Zila Panchayat could
charge fees to be fixed by the bye-laws
for use or occupation of any immovable
property vested in or entrusted to the
management of the Zila Panchayat
including any public road, the Zila
Panchayat had validly framed the byelaws. It was also contended by the learned
Senior Counsel for the respondents that in
view of the definition of public road in
section 2 (37) of the Zila Panchayat Act,
the Zila Panchayat was competent to levy
fees every if a person had an enforceable
right to use the road.

51. The contention of Dr. Singhvi,
learned Senior Counsel for the petitioner
is that the Zila Panchayat can impose fee
under section 142 of the Act only on such
use of occupation as are prescribed under
section 239 (2) of the Act. In this
connection he pointed out that the
limitations are prescribed under 'CStreets' contained in section 239(2) of the
Act and mere passing or repassing of the
vehicles on public road is not covered
under this. In our opinion, section 142(1)
is
an
independent
section
which
empowers the Zila Panchayat to charge
fee to be fixed by the bye-laws for use
and occupation of the public road. Section
239 (1) of the Zila Panchayat Act clearly
empowers the Zila Panchayat to make
bye-laws for its own purposes in respect
of matters required by this Act to be
governed by bye-laws. Thus, in view of
section 142 (1) of the Zila Panchayat Act
read with section 239 (1) of the Zila
Panchayat Act, the Zila Panchayat can
frame bye-laws for charging fees for use
or occupation of any public road. Section
239 (2) of the Zila Panchayat Act
empowers the Zila Panchayat to make
bye-laws
without
prejudice
to
the
generality of the power conferred by
section 239 (1) of the Zila Panchayat Act.
In such circumstances the contention of
the learned Senior Counsel for the
petitioner that the power to frame byelaws under section 142 (1) of the Zila
Panchayat Act is circumscribed by the
conditions contained in section 239 (2) of
the Act and in particular to 'C-Streets'
cannot be accepted."

8. The ratio of the said Full Bench
judgment clearly states that over and
above the powers conferred under Section
239, the Zila Panchayat can frame a byelaw and impose a fee as has been done in
the present case as well in exercise of the
powers under Section 142 of the Act. The
answer of the full bench is therefore
complete
and
squarely
repels
the
submissions raised by the counsel for the
petitioner. Thus, there is no ground to
2 All] Sri Bechu Rai Gram Sewak Vs. State of U.P. & Ors.
581
strike down the impugned bye-laws
merely because Section 142 has not been
mentioned in the notification.

9. Consequently, there is no merit in this
writ petition. Rejected
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.03.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 18717 of 2004

Sri Bechu Rai Gram Sewak .....Petitioner
Versus
State of U.P. & Ors. ..........Respondents

Counsel for the Petitioner:
Sri Chandra Shekhar Srivastava, Sri
Pradeep Kumar Rai

Counsel for the Respondent:
C.S.C.

Constitution of India, Art. 21- Right to
pension-petitioner retired on 31.07.97
working
as
Gram
Sewak-prior
to
retirement all formalities completed-but
can not be finalized-only reason that
service
record
not
traceable-
heldpetitioner can not be blamed-being
instrumentality of state authorities are
duty bound to discharge duties in more
responsible and caution manner-petition
allowed with direction to pay entire
amount of pension @ 10% per annum
w.e.f. date of retirement to the date of
actual payment is made-with cost of Rs.
10,000/-.

Held: Para-23&24
23. In view of the above, I have no
hesitation in holding that non payment
of
retiral
benefits
and
others
to
petitioner is arbitrary and unreasonable.
There was no justification at all for
respondents to delay payment thereof.
24. In the circumstances, the petition is
allowed. The respondents are directed to
pay entire retiral dues of petitioner
alongwith interest @ 10% per annum,
which shall be computed from the date
of his retirement till actual payment is
made. This payment shall be made
within two months from the date of
service of this order.

Case Law Discussed:
AIR 1983 SC 130; 1972 AC 1027; 1964 AC
1129; JT 1993(6) SC 307; JT 2004(5)SC 17;
(1996) 6 SCC 530; (1996) 6 SCC 558; AIR
1996 SC 175; W.P. No. 34804 OF 2004.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. The only grievance of petitioner is
that he has not been paid retiral dues
though he has retired on 31.7.1997.

2. In the counter affidavit the
respondents have given the reason that
service record of petitioner could not be
verified by them and "no objection
certificate" has not been produced by
petitioner.

3.

Learned
counsel
for
the
respondents submitted that the petitioner
absconded from duty frequently and,
therefore, there was break in his service.
It is further submitted that the petitioner
could not make available photograph and
other
necessary
documents
for
the
purposes of pension despite several
reminders and as such, in absence of
requisite documents for sanction of
pension, the retiral dues could not be paid
in time for which petitioner was solely
responsible.

4. The brief facts relevant for the
purpose of writ petition are that the
petitioner was appointed on 17.1.1964 as
Gram Sewak and continued to work as