AMITAVA LALA, J. - (1.) Basically this writ petition has been filed by the petitioner company, through its constituted attorney one Sri K.M. Abraham, praying inter alia quashing of all demands and collection of fee/toll on transportation of limestone from the quarries forming part of the mining lease area of the petitioner to its factory gate, and also for a direction upon the respondent nos. 2 and 3 to refund all collections of fee/toll collected by the Zila Panchayat, Sonebhadra, respondent no. 2 herein, through the contractor, respondent no. 3 herein, on the transportation of minerals, as aforesaid. Briefly stated case of the petitioner is that it is a company, which, amongst other businesses, is also engaged in the manufacture of Portland cement. Pursuant to the proceedings of sale conducted in the Company Court, the assets of the Uttar Pradesh State Cement Corporation Limited, a Government company, were transferred in favour of the petitioner upon payment of a sum of Rs. 459 crores. Such sale was confirmed by the Company Judge by order dated 11/12th October, 2006. Thereafter, the petitioner undertook major renovation and refurbishment of the factory and the unit commenced commercial production of Portland cement on or about 2008. Upon confirmation of sale, the mining lease, which stood granted in favour of the company as well as all those independently promised and forming part of the sale, were transferred to the petitioner by the State under the provisions of the Mineral Concession Rules, 1960 (hereinafter in short called as the ''Rules, 1960').
(2.) THE present dispute pertains to the limestone lease. Mining lease area granted to the petitioner under the transfer deeds also included existing roads leading from the quarries to the factory gate of the units of the company. These roads run over numerous revenue plots which are duly recorded in the revenue records in the name of Public Works Department, Government of Uttar Pradesh, petitioner company and individual land holders. However, on or about 05th April, 2011 the representatives of the respondent no. 3 have started demanding Rs.100/- per truck carrying limestone from the quarry to the Dala Cement Factory as a pre-condition to the transit of the said vehicles. Thereafter, upon enquiry the petitioner came to know that Zila Panchayat-respondent no. 2 had framed certain bye-laws on 05th December, 1994 for levy of a fee on vehicles transporting minerals over roads in District Sonebhadra. Such bye-laws were published in the Gazette on 10th December, 1994. Subsequently, the rates of fee to be levied on transport of minerals were further revised by means of a notification dated 06th November, 2008, which were published in the Gazette on 20th December, 2008. On 31st March, 2011 the contract was awarded by the Zila Panchayat-respondent no. 2 in favour of the respondent no. 3 for collection of fee on transport of minerals. Mr. Yashwant Varma, learned Counsel appearing for the petitioner, has contended that according to the respondent no. 2, in exercise of power under Section 239 of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter in short called as the "Adhiniyam") the rates of fee to be levied on transport of minerals were revised by the notification dated 06th November, 2008, published in the Gazette on 20th December, 2008. According to him, levy of fee under the bye-laws is wholly without jurisdiction or authority of law, inasmuch as no provision of Section 239 of the Adhiniyam empowers the Zila Panchayat to levy a fee on the transportation of minerals. More fundamentally, the limestone is not transported by the petitioner on or over any property vested in or entrusted to the management of Zila Panchayat nor does it traverse any public road or place, the use or occupation of which may have been allowed by the said Zila Panchayat. The road, over which the limestone is transported from the quarry to the factory gate of the petitioner, falls within the mining lease area granted to the petitioner by the State. A perusal of revenue records of the plots, over which road traverses, also establish that it runs over no plots which may belong to or vest in the Zila Panchayat. The road has been constructed and is maintained by the Public Works Department of the State Government and it does not belong to Zila Panchayat. Since the road is neither maintained nor has been constructed by the Zila Panchayat, levy of fee is wholly unjustified. Moreover, grant of mining lease to the petitioner confers upon it a right to use all roads and pathways falling within the lease area either existing or those which may be constructed without any fetter. Mr. Varma has further submitted that in connection with the authority of the Panchayat to levy the fee on minerals, a challenge was thrown before the writ Court and this Court by its judgement dated 15th January, 2001 reported in 2001 (1) AWC 803 (Okhla Sand Supply Co. and another Vs. State of U.P. and others) was pleased to hold that the levy was without legislative competence, therefore, it is unjustified in the light of the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter in short called as the ''Act, 1957'). The Court further held that the provisions of the Act clearly eclipsed the power of the State to levy any fee and, therefore, the Panchayat was not entitled to impose the fee. Doubting the correctness of such Division Bench judgement, the issue was referred to the Full Bench and the Full Bench by its judgement dated 20th July, 2007 reported in 2007 (4) AWC 3470 (B. Agarwal Stone Product Ltd. Vs. State of U.P. and others) was pleased to hold that the aforesaid Division Bench judgement did not lay down the correct law and the levy of fee would be fully justified in the case of transport of minerals over the roads constructed by the Zila Panchayat. The Full Bench was also pleased to notice the contention of the petitioners (therein) that the minerals were not being transported over roads, which were either built or maintained by the Zila Panchayat. The Full Bench further observed that since it was deciding only legal issues, the other factual issues were left open to be decided by the concerned Division Bench. According to the information of the petitioner, consequent to the above observations, the writ petitions are still pending disposal before this Hon'ble Court.
(3.) BY filing counter affidavit, Mr. P.N. Saxena, learned Senior Counsel appearing for the Zila Panchayat-respondent no. 2, has brought to our notice legal provisions involved herein. According to him, Section 142 of the Adhiniyam gives power to the Zila Panchayat to charge fee fixed by the bye-laws for use and occupation of the immovable properties, as follows: "142. Fees for use, otherwise than under a lease of property of a Zila Panchayat or a Kshettra Panchayat.--(1) A Zila Panchayat or a Kshettra Panchayat may charge fees to be fixed by bye-law or by public auction or by agreement for the use or occupation (otherwise than under a lease) of any immovable property vested in, or entrusted to the management of, the Zila Panchayat or the Kshettra Panchayat, as the case may be, including any public road or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise. (2) Such fees may either be levied along with the fees charged under Section 143 for the sanction, licence or permission or may be recovered in the manner prescribed by Chapter VIII." ;