# Uttar Pradesh Udyog Vyapar Pratinidhi Mandal and others v. State of U.P. and others

- **Citation:** (2003) 1 ILRA 143
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-02-07
- **Case number:** Civil Misc. Writ Petition No. 42320 of 2002
- **Bench:** M. Katju, Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uttar-pradesh-udyog-vyapar-pratinidhi-mandal-and-others-v-state-of-u-p-and-39907
- **Pages:** 6

## Headnote

Constitution of India, Article 226 read
with section 142 of U.P. Kshetriya
Panchayat Adhiniyam 1961- bye laws
from for realization of fees and tolls-
never published in well known popular
news paper as required under section
239 read with 242(2)- fee realized
against the facility of drinking water,
first aid, treatment at the place of load
and unloading the articles- without
providing such facility the toll tax cannot
be realized.

Held- para 12
The Zila Panchayat has failed to establish
that it is providing any service either
directly or remotely to the persons from
whom it is realizing the impugned fee.
There is total lack of element of quid pro
quo. Hence the levy in question is not a
fee but tax in nature.

## Text

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1All] U.P. Udyog Vyapar Pratinidhi Mandal and others V. State of U.P. and others 143
no reason for disbelieving the complaint
of Smt. Anita Mehta and we are of the
opinion that her complaint, copy of which
is Annexure SCA-7 to the Supplementary
counter affidavit, is factually correct. As
stated
in
paragraph
35
of
the
supplementary
counter
affidavit,
the
management did not hold a full fledged
disciplinary proceedings as that would
have caused further embarrassment to the
lady officer who was already suffering
from mental trauma. The enquiry held by
the respondents in our opinion was
adequate. Rules of natural justice are
flexible and depend on the facts and
circumstances of each case, vide Hira
Nath Misra v. Principal, AIR 1973 SC
1260. On the facts of the present case
opportunity of hearing was given to the
petitioner and in sufficient compliance of
the Rules of natural justice, considering
the fact that it is a case of sexual
harassment. In fact the Bank has acted
leniently by only ordering compulsory
retirement instead of dismissal which the
petitioner deserves.

10. An Apparel Export Promotion
Council v. A.K. Chopra (supra) the
Supreme Court held that in a case of
sexual harassment for the offending
action to be outrageous actual assault or
touch by the offender is not essential.
Objectionable
overtures
with
sexual
overtone is enough.

The facts, of the aforesaid case
squarely applies to the present case. The
petitioner's
remarks
were
clearly
outrageous and had sexual overtones.
Moreover, this is not a fit case to exercise
our discretion under Article 226 of the
Constitution. The petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD FEBRUARY 7, 2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 42320 of 2002

Uttar Pradesh Udyog Vyapar Pratinidhi
Mandal and others
 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Subodh Kumar

Counsel for the Respondents:
Sri B.P. Singh
Sri Bhagwati Prasad
Sri S.S. Upadhyaya
Mr. Sadhna Upadhyaya

Constitution of India, Article 226 read
with section 142 of U.P. Kshetriya
Panchayat Adhiniyam 1961- bye laws
from for realization of fees and tolls-
never published in well known popular
news paper as required under section
239 read with 242(2)- fee realized
against the facility of drinking water,
first aid, treatment at the place of load
and unloading the articles- without
providing such facility the toll tax cannot
be realized.

Held- para 12
The Zila Panchayat has failed to establish
that it is providing any service either
directly or remotely to the persons from
whom it is realizing the impugned fee.
There is total lack of element of quid pro
quo. Hence the levy in question is not a
fee but tax in nature.

(Delivered by Hon'ble Prakash Krishna, J.)

1. These are four writ petitions. The
controversy
involved
in
all
the
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144 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
abovementioned writ petitions is common
and hence they are being disposed of by
the common judgment.

2. The petitioners have filed the writ
petitions challenging the validity of the
bye-laws filed as Annexure 2 to the writ
petition, framed by the Zila Panchayat,
Agra. The said bye-laws were published
in the official gazette on 11th May, 2002.
These bye-laws were framed for the
purpose or regulation of transportation by
vehicles from Agra district to outside and
from outside districts to Agra of Gitti,
Patthar, Bolder, Coal, Marble, Yamuna
sand and Balu etc. Bye law no. 19
provides the charges to be paid on every
trip of the vehicle, namely trolly, mini
truck and truck. It further provides that
the amount thus realized shall be utilized
for providing drinking water facility to the
vehicle owners and drivers and medical
facilities shall also be provided at the
point of loading or at any other specified
place.

3. The petitioners have challenged
the validity of the aforesaid bye-laws on a
number of grounds. They have pleaded
that the Zila Panchayat has no power to
frame such bye laws in view of provisions
of sections 142 to 145 of U.P. Kshettra
Panchayat
and
Zila
Panchayats
Adhiniyam, 1961 (hereinafter referred to
as the Act). They have further pleaded
that the aforesaid sections 142 to 145
contemplate imposition of certain fees
and tolls but the impugned leavy does not
come within the ambit of aforesaid
sections, namely, sections 142 to 145. A
plea has also been raised by the
petitioners that the aforesaid bye laws
were never published in any reputed
newspaper, such as Amar Ujala', Dainik
Jagran', Times of India, Hindustan Times,
Rastriya Sahara, etc. vide paragraph 14 of
the writ petition. The petitioners or other
persons were not made aware about any
proceedings for framing of bye laws by
the Zila Panchayat, Agra. These bye laws
were never published as required by
Section 239 read with sub section 2 of
section 242 of the Act, while previous
publication is mandatory. In paragraph 17
of the writ petition it has been mentioned
that the fee which is being sought to be
recovered by the respondents against the
facility of drinking water and first aid
treatment at the places of loading and
unloading are the statutory functions of
the
Kshettra
Panchayat
and
Zila
Panchayat. It is the duty of the Zila
Panchayat to provide drinking water and
medical facilities vide Part A to schedule
II clauses (xi) and (xxiii) of the Act, the
respondents have failed to take any
decision on the representations filed by
the petitioners and other persons hence
the present writ petitions.

4. A counter affidavit has been filed
in writ petition no. 42320 of 2002 on
behalf of respondents no. 3 and 4 by one
Gaya Prasad Gupta, clerk in Zila
Panchayat,
Agra.
The
said
counter
affidavit has been relied upon for the
purpose of other writ petitions also as
jointly agreed between counsel for parties.
It has been stated that in the meeting
dated 28.2.2001 vide Resolution no. 4, the
Zila Panchayat, Agra decided to frame the
said bye laws. Proceedings of the meeting
have been filed as Annexre CA-1. The
said resolution was published in the
newspaper, namely , daily Hindi Dainik
Aaj, dated 24.4.2001 filed as Annexure
CA-2. Thereafter the said bye- laws were
submitted to the Commissioner of the
Division and were published in the
official gazette. In paragraph 26 of the
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1All] U.P. Udyog Vyapar Pratinidhi Mandal and others V. State of U.P. and others 145
counter affidavit it has been stated that the
objections were invited from the public
and since no objections whatsoever were
received, the bye laws were sent for
confirmation by the Prescribed Authority,
that is the Commissioner, Agra Region,
Agra. The impugned bye laws fall under
the provisions of sections 142, 143, 144
and 145. In paragraph 29 of the counter
affidavit it is stated that the respondents
have provided medical facilities as well as
drinking water and other facilities. One
receipt issued by New Prince Medico
dated 17.6.2002 in the name of one Ram
Prakash had been filed as Annexure CA-5
to the counter affidavit to show that the
Zila Panchayat is rendering medical
service. The Zila Panchayat is suffering a
loss of Rs.50,000/- per day on account of
the stay order passed by this Court and the
impugned levy is perfectly justified.

5. We have heard counsel for parties
and also Smt. Sadhna Upadhyaya on
behalf on Contractors.

6. It has been submitted by the
counsel for the petitioners that the
respondents have got no power to frame
such bye laws under sections 142 to 145
of the Act which contemplate imposition
of certain fees and tolls. The impugned
fee does not come within the ambit of
sections 142 to 145 of the Act. The
impugned bye laws imposes different fee
and the Zila Panchayat is not competent
to do so. The further argument is that the
said fee is in the nature of tax as the Zila
Panchayat is not rendering any special
service either directly or remotely to the
persons from whom the aforesaid fee is
being realized. There is a distinction
between fee and tax. Since there is
complete absence of quid pro quo in the
present case, the impost is wholly illegal
and invalid. It has further been submitted
that fee can be imposed only for a
specified purpose. It is the statutory duty
of the Zila Panchayat to provide drinking
water and medical facility and for the said
purposes the impost of the present levy
cannot be justified.

7. In this connection it is relevant to
quote relevant portions of paragraph 21
and 29 of the counter affidavit.

"para 21......whereas the new bye
laws has been framed by the answering
respondent under the provisions of the
Act to provide facilities to the public of
the district by enhancing its resource for
meeting out the need of the public and for
the purpose of providing at least there is
no facilities for the people of Agra.

"29......that
the
answering
respondents
providing
the
medical
facilities as well as drinking water and
other facilities also either itself or through
its'
agents.........
The
photographs
containing the Medical facilities drinking
water being provided by the Zila Parishad
to the public at large including the
employees of trolleys, mini truck, truck
and tractor, the photographs of the same is
being filed herewith and is marked as
Annexure No. CA 6 to this affidavit. "

From the above it is crystal clear that
the Zila Panchayat is using the money
thus realized under the impugned bye
laws for the purposes of providing
medical facilities and drinking water to
the public at large.

8. The question arises whether in the
facts of the present case the impost is a
fee or a tax. In Nagar Palika Varanasi vs.
Durga Das Bhattacharya AIR 1968 SC
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146 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
1119, while dealing with the provisions of
U.P. Municipalities Act the Supreme
Court held that there is generic difference
between a tax and fee, both are
compulsory exactions of money by public
authorities, but whereas a tax is imposed
for public purposes and is not supported
by any service rendered in return, a fee is
levied essentially for services rendered
and as such there is an element of quid
pro quo between the person who pays the
fee and the public authorities which
imposes it. In the aforesaid case it has
been further held :-

"In this context it is important to
notice that the power in the American
Municipal Law - (Dillon on 'Municipal
Corporations', Vol. IV 5th Edn. P. 2400).
It has been held that the police and taxing
powers of the legislature though coexistent, are distinct powers. Boradly
speaking, the distinction is that the taxing
power is exercised for the purpose of
raising revenue and is subject to certain
designated constitutional limitation, while
the police power is exercised for the
promotion of the public welfare by means
of the regulation of dangerous or
potentially
dangerous
businesses,
occupations, or activities, and is not
subject to the constitutional restrictions
applicable to the taxing power. "It may
consequently be said that if the primary
purpose of a statute or ordinance exacting
an imposition of some kind is to raise
revenue, it represents an exercise of the
taxing power, while if the primary
purpose of particular occupation, calling
or activity., it is an exercise of the police
power, even if it incidentally produces
revenue'. (American Jurisprudence 2nd
Edn. Vol. 16, p. 519.

9.

Learned
counsel
for
the
petitioners has placed reliance upon the
judgment of the Supreme Court in the
cases of Hansraj and Sons vs. State of
Jammu and Kashmir (2002) 3 UPLBEC
2015 and Okhla Sand Supply Company
vs. State of U.P. and others (2001) 1
AWC 803. In the aforesaid judgments of
the Supreme Court it has been held that
the expression ' toll' normally means a
definite payment exacted by the State or
the
local
authority
by
virtue
of
sovereignty or lordship or in return of
protection, more especially, for doing
some
act,
perform
such
functions.
Another meaning attributed to the term is
a charge for landing or shipping goods at
a
port.
In
Okhla
Sand
Supply
Company's case it was held that the mere
purpose of imposition of toll tax is to
recover the cost of construction and
maintenance of a bridge. Tax can only be
imposed in respect of items enumerated in
section 144 of the Act. Zila Panchayat is
authorized to impose tax only in respect
of items mentions in section 239 of the
Act. Section 239 of the Act provides that
a Parishad may make a bye laws in
respect of the 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. Sub section (2)
of section 239 enumerates various subject
upon which bye laws can be framed.

10. The question with regard to
distinction between a fee and tax has been
subject matter of debate since long. The
Supreme
Court
in
the
case
of
Commissioner,
Hindu
Religious
Endowments
vs.
Sri
Lakshimndra
Thirtha Swaiar of Sri Shirur Mutt (AIR
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1All] U.P. Udyog Vyapar Pratinidhi Mandal and others V. State of U.P. and others 147
1954 SC 282) examined the matter in
detail . It also considered Article 110 of
the
Constitution
and
came
to
the
conclusion that there is no generic
difference between a tax and fee. Our
constitution
has
made
a distinction
between a tax and a fee. The Court also
pointed out that as indicated by Article
110 of the constitution ordinarily there are
two
classes
of
cases
where
the
Government imposes fees upon persons.
In the first class of cases the Government
simply grants a permit or privilege to a
person to do some thing which that person
would otherwise not be competent to do
and extracts fee from that person in return
for the privilege that in conferred. In other
class of cases the Government does some
positive work for the benefit of person
and the money is taken as return for the
work done or the services rendered. The
Court also pointed out that in cases falling
in the second category, that is, where the
fee is being charged for the services
rendered, it is absolutely necessary that
the levy of fee should, on the face of the
legislative provision, be co-related to the
expenses incurred by the Government in
rendering of services. However, there are
subsequent
pronouncements
by
the
Supreme Court wherein it has been held
that the element of quid pro quo in strict
sense is not otherwise a sine quo non of a
fee. Sec. 1980 AIR SC 1963. But the fact
remains that the principal criterion for the
purposes as propounded in the earlier
cases of the Supreme Court that in order
to qualify as a fee, the impost must have
relation
to
services
rendered
or
advantages conferred, however, still holds
good. The communication need not be
direct and mere actual relationship may be
regarded as sufficient. In this background
we have to examine the facts of the
present case.
11. As mentioned in earlier
paragraphs of this judgement , the fee so
realized is being utilized by the Zila
Panchayat for the purposes of providing
drinking water and medical facilities.
Section 23 of the Act gives the general
powers and functions of Zila Panchayat.
The powers and functions in Part A of
Schedule II have been mentioned in
clause (v) of section 33 (i). In the said
Schedule Entry (xi) reads as follows -
Drinking water
(a) Maintenance of drinking water
of public use,
(b) Plan and programme for drinking
water, and
(c) Supervision and Control of water
pollution. "

Entry (xxiii) Medical and Sanitation.

Thus, it is the statutory function of
Zila Panchayat to provide drinking water
and medical facilities etc. The Supreme
Court in the case of Nagar Mahapalika
Varanasi (supra) has held that for the
expenditure incurred by the Municipal
Board in the discharge of its statutory
duties the licence fee cannot be imposed
for reimbursing the cost of statutory
duties or ordinary medical services which
the municipal board was bound under the
statute to provide to the general public
vide paragraph 10 of the judgment, in
view of the judgment of the Supreme
Court rendered under section 294 of the
U.P. Municipalities Act, which is in para
materia with the provisions of Khettriya
Panchayat
and
Zila
Panchayat
Adhiniyam. The Zila Panchayat Agra in
its counter affidavit has sought to justify
the impost on the basis that it is incurring
expenditure towards its ordinary services
which the Zila Panchayat was bound to
provide under the statute to the general
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148 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
public. No attempt has been made in the
counter affidavit in any manner that as
against the fee sought to be levied and
recovered, the Zila Panchayat is going to
render any special service to the persons
from whom the fee is being realized. It
has been stated in the counter affidavit
that it is incurring a loss of Rs.50,000/-
per day on account of the stay order
granted by this Court, but in the counter
affidavit the Zila Panchayat has not given
the details of any special services
provided to the persons from whom the
fee was realized . The power to impose
tax under the Act has been given under
section 23. It also provides that a
preliminary proposal for imposition of tax
shall be framed which shall be passed by
a special resolution. The Zila Panchayat
in its counter affidavit has sought to
justify the action with reference to
sections 142 to 145. The counter affidavit
is silent as to under which section the
aforesaid by laws were framed. The
impugned fee does not come within the
ambit of sections 142 to 145 of the Act.
To provide drinking water and first aid or
medical facility is a statutory duty of Zila
Panchayat as indicated above. Hence no
separate bye laws can be framed and no
separate fee can be charged for providing
drinking water or medical facilities to the
public at large. The respondents have
realized fee till October, 2002 meaning
thereby a sum of about Rs.90,00,000/- has
been realized by them. It is strange that
out of this huge sum the Kshettra
Panchayat has not been able to show that
it has done some special service to the
persons from whom money was realized.
Along with counter affidavit a bill of
Rs.10,000/- and odd, showing purchase of
some medicines, has been filed. The
petitioners
have
disputed
the
said
purchase as the bill is not in the name of
Zila Panchayat or its officers/officials.

12. Thus, the Zila Panchayat has
failed to establish that it is providing any
service either directly or remotely to the
persons from whom it is realizing the
impugned fee. There is total lack of
element of quid pro quo. Hence the levy
in question is not a fee but tax in nature.

13. In view of the above, the
impugned bye laws, a copy of which has
been filed as Annexure 2 to the writ
petition, published in the official Gazette
dated 11.5.2002 is quashed. The writ
petition is allowed. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 3.2.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 3694 of 2000

IC No.39255W Major Surendra Singh
Sajwan

...Petitioner
Versus
The Union of India and others

 ...Respondents

Counsel for the Petitioner:
Sri Yogesh Agarwal
Sri G.D. Mukerji
Sri Satyajit Mukerji
Sri S.K. Singh

Counsel for the Respondents:
Sri S.K. Rai
Sri Subartee Banerjee
S.C.

Constitution of India, Article 226- Army
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provides Constitution selection board-