- (1.) Heard Sri W.H. Khan, Senior Advocate, assisted by Sri J.H. Khan for the petitioner and Sri Pankaj Saxena, learned Additional Chief Standing Counsel for the State-respondents.
(2.) Two supplementary counter affidavits and a second supplementary counter affidavit have been filed on behalf of the respondents to which rejoinder affidavit and supplementary rejoinder affidavit have also been filed by the petitioners. The parties were heard on 13th November, 2009, 18th November, 2009 and 15th December, 2009. Pleadings are complete between the parties and with the consent of the parties the writ petition is being finally decided.
(3.) Brief facts of the case necessary to be noted for deciding the writ petition are; the Zila Panchayat, Sonebhadra has framed bye-laws under Sub-section (2) of Section 239 of the Uttar Pradesh Kshetra Panchayat and Zila Panchayat, Adhiniyam, 1961 (hereinafter referred to as the 1961 Act) for collection of fee from the tractors and trucks carrying Gitti, Patthar, Boulder, Surkhi, Chuna, Koyala, Bhassi etc. from the mining area situate within the rural areas of Zila Panchayat, Sonebhadra. The petitioner being the highest bidder was awarded a contract for the period 12th December, 2008 to 31st March, 2010 for collection of fee from the above mentioned vehicles for an amount of Rs. 4,30,00,000/-. Under the contract dated 11th December, 2008 entered into between the petitioner and Zila Panchayat, Sonebhadra, the contractor was entitled to realise fee at the rate mentioned in the agreement from tractors trucks (including the trucks having 10 wheels). The petitioner was also entitled to establish check post in the district for collection of fee. An order dated 6th July, 2009 was issued by the District Magistrate, Sonebhadra directing the Sub Divisional Officer, Robertsganj and Sub Divisional Officer, Duddhi to close barriers/check posts since the State Government has taken decision to close barriers and check posts looking to the difficulties of citizens, industrialists and traders due to establishment of barriers on national highways and main roads in the district. The order of the District Magistrate also referred to the Government order dated 2nd July, 2008 and 12th June, 2009. The petitioner has filed this writ petition challenging the order of the District Magistrate dated 6th July, 2009 and the Government orders dated 2nd July, 2008 and 12th June, 2009. By amendment the petitioner also was permitted to challenge the order dated 7th July, 2008 issued by the State Government. Following reliefs have been prayed for in this writ petition: (i) issue a writ, order or direction in the nature of certiorari quashing the order dated 6th July, 2009 (Annexure-1) passed by respondent No. 2, Government order dated 2nd July, 2008 (Annexure-2) issued by respondent No. 1 and the Government order dated 12th June, 2009 (Annexure-3) and the letter dated 7th July, 2008 (Annexure-11) issued by Special Secretary, Government of U.P., Lucknow. (ii) issue a writ, order or direction in the nature of mandamus commanding the respondents not to close/remove the barriers & check posts of Zila Panchayat Sonbhadra installed for collection of fee prescribed by bye-laws published in Gazette dated 10.12.1994 under Sub-section 2 of Section 239 of Zila Panchayat Act as amended in 1999 authorising the petitioner/contractor to collect the prescribed fee at the barriers & check posts installed by Zila Panchayat at Markundi, Teilgudwa, Murdahwa, Dudhi Chunna, Khadiya, Aaudi Mod and Sukrit.;