- (1.) DHARAM Veer, J. By means of this writ petition, the petitioner has prayed for writ of certiorari quash ing the impugned order dated 18-5-1994 (Annexure VII) and to quash the im pugned notifications dated 31-10-1991 (Annexure I) and the impugned demand notices dated 29-2-1993 and 22-4-1993 (Annexures II and III respectively ). The petitioner has also sought a writ of mandamus restraining the respondents from realizing licence fee in pursuance of the impugned notices dated 23-7-1993 and 22-4-1993.
(2.) IN brief, the facts of the case ac cording to the petitioner are that the fac tory of the petitioner established in the year 1986 and at that point of time even though the Zila Parishad was not render ing any services at all, a licence fee carne to be imposed at the rate of Rs. 1000/- per annum. The petitioner's unit at that point of time did not realise the implications thereof and simply contin ued to deposit the licence fee as and when demanded by the respondents. Thereafter, the resopondent Zila Parishad proposed an amendment in its byelaws which was published by the State Government and the said byelaws were introduced in view of the purposes and objects as contemplated under Schedule D, sub-clause x of Schedule (E) of Section 239 (2) of the U. P. [kshettra Panchayats & Zila Panchayats] Adhiniyam, 1961 [u. P. Act No. XXXIII of 1961] (hereinafter will be referred to as the Act ). The petitioner has alleged that the Zila Parishad with out consciously applying its mind straightway, issued demand notices to the petitioner demanding the licence fee at the rate of Rs. 25,000/- per annum. It has also been alleged by the petitioner that his firm manufactures portable gen erators and the plant is mostly fixed with automatic equipments which nei ther brings any environmental pollution nor cause any nuisance which result any public inconvenience which directly or indirectly requires any rendering of serv ices by the Zila Parishad. The petition er's unit does not either require any serv ice nor does the Zila Parishad render any service at all for the benefit of the unit in any manner whatsoever. It has also been alleged that the petitioner's unit does not fall within any of the cat egories as enumerated in the Act and hence the notification dated 31-10-1991 is challenged by the petitioner on the ground that the same is absolutely irra tional and based on no valid reasons. The petitioner being aggrieved by the said action of Zila Parisad, preferred a Misc. Appeal No. 67 of 1992-93 before the Commissioner, Kumaon Region, Nainital. The learned Commissioner af ter considering the material on record rejected the appeal of the petitioner vide his order dated 18-5-1994. According to the petitioner, there is absolutely no pro vision for levying the licence fee on the petitioner's firm/unit. The objects of the byelaws and the directives contained un der the Act itself even did not bring the petitioner's unit within its subject mat ter and hence it has been alleged that the impugned order is liable to be set aside. A counter affidavit has been filed by Zila Parishad, Nainital in which the Zila Parishad has denied the contents of the writ petition. It has been stated that the Zila Parishad, Nainital is competent to charge licence fee from any person who carries any industry or business ac tivities within the limit of Zila Parishad, Nainital under Section 143 of the U. P Act No. XXXIII of 1961. U. P [kshettra Panchayats & Zila Panchayats] Adhiniyam, 1961 ). According to the pro visions of the aforesaid Act, the Zila Parishad is entrusted with the duty to prohibit and regulate offensive trade which may or likely to cause public nui sance or which Involves risk of fire. Therefore, the Zila Parishad Nainital in exercise of its powers under Section 239 (2) of the aforesaid Act has framed byelaws whereby the Zila Parishad has regulated the industrial activities which are likely to cause public nuisance and with the purpose of regulating such of fensive trade, the Zila Parishad, Nainital framed byelaws u/s 239 (2) of the Act vide notification dated 18-1-1973 which was published on 24-2-1977. Thereafter, the Zila Parishad, Nainital made an amendment in the aforesaid byelaws which was duly confirmed by the Commissoner, Kumaon Division, Nainital under the provision of Section 242 of the aforesaid Act. The Zila Parishad, Nainital before making amendment in the aforesaid byelaws, published the same in the leading daily Hindi newspaper of the locality for in viting objections, if any, from the pub lic at large to the amended byelaws. However, no objections were received from any quarter whatsoever and the amended byelaws were published in the Official Gazette which have now be come final and binding upon all parties concerned. It has also been stated in the counter affidavit that the petitioner's company runs a large scale industry in the name and style of M/s Sriram Honda Power Equipment Ltd. and it manufac tures Portable as well as big Generator Sets and other power equipments within the limit of Zila Parishad, Nainital. The licence fee was being charged from the petitioner's company for the last so many years which was being paid by the petitioner without any objections. How ever, the petitioner's company has now challenged the levy of licence fee by the Zila Parishad according to the amended byelaws and it has been alleged that in fact that the petitioner's company is a licence holder from Zila Parishad, Nainital, the Zila Parishad is competent to impose and levy licence fee in pursu ance of its power under the provisions of the aforesaid Act. It has further been stated that there is no infirmity in the order dated 18- 5-1994 passed by the learned Commissioner, Kumaon Divi sion, Nainital whereby he has dismissed 26 appeals filed by different persons. The industry of the petitioner was estab lished in the year 1986 and a licence was also obtained by him from the Zila Parishad, Nainital after payment of req uisite fee. The licence issued to the pe titioner company was renewed from time to time after the receipt of the requisite licence fee for the period 1-4-1991 to 31-3-1992. The proposed amendment in byelaws No. 11 was firstly put for dis cussion before the Full Board Meeting of Zila Parishad, Nainital and after resolv ing the same by the Board Meeting, it was published in a daily newspaper viz. Amar Ujala. The amended byelaws were notified in the official gazette dated 17-7-1993 and as such it has now become final and irrevocable. It has further been stated that the Zila Parishad, Nainital is providing basic civic amenities to all persons who resides within its territorial jurisdiction and all residents within its jurisdiction avail the facilities provided by the Zila Parishad and as such it is absolutely erroneous to state that the petitioner does not require any service from the Zila Parishad. The workmen employed in the industry are also ben eficiaries of the facilities provided by the Zila Parishad, Nainital in addition to the industry itself belonging to the petitioner. The petitioner's unit squarely comes within the purview of the byelaws as it stood before its amendment dated 31-10-1991 and the amended byelaws are also applicable to the petitioner's unit with equal force. The amended byelaws have also classified in the industries on the basis of the number of workmen em ployed in such industry. As the petition ers's unit has employed more than 250 workmen and as such the licence fee of Rs. 25. 000/- per annum has rightly been charged from him in pursuance of the amended byelaws, Accordingly, it has been prayed that the writ petition is de void of merit and is liable to be dis missed.
(3.) WE have heard learned counsel for the parties and perused the entire material available on record. Learned counsel for the petitioner confines his argument only to this point that the Zila Panchayat, Nainital has no power to amend the byelaws which was published vide notification dated 31-10-1991 and as such the same is against the provisions of the Act. He specially emphasized his argument on Section 239 (2) (D) (d) and Section 239 (2) (E) (a) (x) of the Act, which are reproduced as under : D (d) providing for the establishment, and for the regulation and inspection of markets and slaughter- houses, of livery stables, of encamping grounds, of sarais, of flour-mills, of bakeries, of places for the manufacture, prepa ration or sale of specified article of food or drink, or for keeping or ex hibiting animals for sale or hire or ani mals of which the produce is sold, and of places of public entertainment or resort, and for the proper and cleanly conduct of business therein. E (a) (x) for any other purpose if such use is likely to cause a public nuisance or involve risk of fire; Section 143 of the aforesaid Act is also relevant in this case and for the sake of convenience, the same is also being reproduced as under : 143. Licence fee, etc.- A Zila Panchayat or Kshettra Panchayat may charge a fee to be fixed by bye-law for any licence, sanction or permis sion which is entitled or required to grant by or under this Act.;