Raj Mani Chauhan, J. - (1.) This writ petition under Article 226 of the Constitution of India has been filed by the petitioner Khalid Nizami @ Sullu, S/o Sheikh Mohammad Nizamuddin, R/o Yusufpur, Railway Station, District Ghazipur against the respondents State of UP. through the Secretary, Ministry of Panchayat Raj/Local Self Government of U.P., Lucknow and 4 others for the following reliefs: (i) Issue a writ, order or direction in the nature of mandamus declaring clause (8) of the bye-laws framed by Zila Panchayat, Ballia approved by the Commissioner Azamgarh Division, Azamgarh and published in the U.P. Gazette dated 23.8.1997 filed as Annexure No. 7 to the writ petition as ultra vires article 19(1)(g) of the Constitution of India; and ultra vires of Sec. 239(2) clause (H) sub-clause (1) of the U.P. Kshetra Panchayats and Zila Panchayats Adhiniyam 1961 and clause (xxii) of part A of Schedule-2 of the Adhiniyam 1961; and the Model bye-laws framed by the State Government vide notification dated 14.2.1995. (ii) Issue a writ, order or direction in the nature of certiorari quashing the order dated 26.4.2003 passed by the Upper Mukhya Adhikari Zila Panchayat Ballia, in exercise of his powers as licensing authority vested under the bye- laws framed by the Zila Panchayat Ballia, filed as Annexure No. 4 to the writ petition. (iii) Issue a writ, order or direction in the nature of mandamus restraining the respondents from interfering in the holding of cattle fair by the petitioner in the Bhumidhari land situate in Mauza Bharauli Khas and Baghama Khurd, Pargana Garh, District Ballia. (iv) Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. (v) To award cost of the writ petition to the petitioner.
(2.) The relevant facts giving rise to the present writ petition may be summarized asunder: The dispute relates to holding of a cattle fair in Mauza Bharauli Khas and Baghama Khurd, Pargana Garh, District Ballia. As per allegation in the petition the revenue plots on which the cattle fair is being held belong to as many as 159 persons who are Bhumidhar of the plots. The petitioner and all the 159 Bhumidhars entered into a partnership agreement on 31.12.1994 to hold a cattle fair on the above plots. They executed deed of partnership in support of their partnership agreement. They executed a registered power of attorney in favour of petitioner for holding cattle fair to institute or defend suit and to manage the fair etc without right to sell those plots. As per partnership agreement, the petitioner was allowed 50% of the profits earned from the fair which was to be held thrice in a year. The petitioner has alleged that he has been holding cattle fair thrice in a year on the plots under the partnership agreement since before 1990. The Zila Panchayat, Ballia also claimed that it was holding a cattle fair in Mauza Bharauli Khas and Baghama Khurd, Pargana Garh, District Ballia since 1976. The Zila Panchayat, Ballia, thereafter created some interference in holding the cattle fair to the petitioner. Therefore, the petitioner had to file original Civil Suit No. 155 of 1995 in Civil Court, Ballia for permanent injunction against Zila Panchayat, Ballia for restraining it as well as its officers from causing any interference in holding the cattle fair. The petitioner moved an application under Order XXXIX, Rule 1 of the Code of Civil Procedure for ad interim injunction which was allowed by the Trial Court. The Trial Court vide order dated 4th May, 1995 granted temporary injunction in favour of the petitioner with the following two conditions: (i) The opposite parties-defendants were restrained by temporary injunction from interfering in the plaintiff's holdings of cattle fair till according to the Government order the bye-laws are framed by the Zila Panchayat and approved by the Divisional Commissioner, published in the official Gazette and enforced. (ii) The opposite parties-defendants were restrained from interfering in the plaintiff's holding cattle fair till the application of the plaintiff given to the Zila Panchayat for grant of license is not disposed of.
(3.) The Zila Panchayat, Ballia feeling aggrieved by the ad interim injunction granted by the Trial Court in favour of the plaintiff filed Misc. Civil Appeal No. 107 of 1995 before the District Judge, Ballia which was dismissed by the Appellate Court. The Zila Panchayat, Ballia being aggrieved by the Appellate Court's judgment filed Writ Petition No. 23945 of 1995 in the High Court of Judicature at Allahabad which was dismissed on 31th August, 1995. The Court while dismissing the writ petition had observed that the petitioner if so advised may apply for review of the order. The Zila Panchayat, Ballia thereafter moved an application for review which was dismissed by the Court on 25th September, 1998. The Zila Panchayat, Ballia thereafter moved an application before the Trial Court under Order XXXIX Rule 4 of the Code of Civil Procedure for vacating the ad interim injunction order dated 4th March, 1995 on the ground that the conditions imposed by the Trial Court while granting ad interim injunction order have been fulfilled, therefore, ad interim injunction order granted by the Court stands vacated. The Trial Court after hearing both the parties allowed the defendants application on 22nd March, 1999 and cancelled the ad interim injunction order dated 4th May, 1995. The Trial Court found that the bye-laws framed by the Zila Panchayat, Ballia had been published in the Gazette on 23rd August, 1997 after approval of the Commissioner, Azamgarh and the plaintiff's application for grant of license to hold cattle fair had also been rejected by the competent authority. The petitioner-plaintiff feeling aggrieved by the order of the Trial Court filed Civil Misc. Appeal before the District Judge which was rejected by the Appellate Court on 21st May, 1999. The petitioner had challenged the order passed by the Trial Court as well as the lower Appellate Court by filing Civil Misc. Writ Petition No. 25609 of 1999 before the High Court, which was dismissed by the Court on 11.11.2005. In that writ petition the petitioner- plaintiff had challenged clause 8 of the bye-laws framed by the Zila Panchayat, Ballia as being ultra vires. He had also prayed for the relief that the order of rejection of his application for grant of license for running cattle fair was illegal but the Court did not go through these reliefs rather; these reliefs were not pressed by the learned counsel for the petitioner. The Court, however, observed that these reliefs could be gone into in an appropriate proceedings. Consequently, the petitioner has filed the present writ petition.;