H.N. Seth, Actg. C.J. - (1.) VIDE notification dated 23rd February, 1974 (Annexure - -1 to the writ petition) Zila Parishad, Deoria framed certain bye -laws for regulating the running of brick -kilns within the district. According to these bye -laws no person is entitled to run a brick -kiln except in accordance with the conditions of a licence obtained by him from the Zila Parishad. The bye -laws further lay down that the licence for the purpose can be obtained on payment of licence fee of Rs. 150/ - and that the same can be renewed on payment of annual fee of Rs. 125/ -. The petitioners, 46 in number, are the owners of brick -kilns located at various places in the district of Deoria. They have, in this petition, questioned the validity of the bye -laws (Annexure -1 to the writ petition) inter alia on the following grounds: - -(i) Zila Parishad, Deoria is not competent to frame any bye -law for regulating running of brick -kilns in the district. (ii) The Zila Parishad did not follow the procedure prescribed for framing of Bye -laws by the U.P. Kshetra Samitis and Zila Parishads Adhiniyam, 1961 (hereinafter referred to as the Adhiniyam). (iii) (a) The provisions in the bye -laws obliging the licencees to pay a sum of Rs. 150/ - for obtaining a new licence and thereafter to have the same renewed on payment of an annual fees of Rs. 125 -stands vitiated inasmuch as the Zila Parishad neither renders any service to the brick -kiln owners nor does it provide any facility to them (b) in the circumstances, imposition of the licence fee, in substance, amounts to levy of tax. The Zila Parishad is neither competent to levy such tax nor did it follow the procedure prescribed by the Adhiniyam for levying the same. The petitioners, therefore, prayed for an appropriate writ under Article 226 of the Constitution for quashing the said bye -laws and for directing the respondents not to enforce the same against them.
(2.) ZILA Parishad, Deoria has contested the prayer made in the writ petition. In the counter affidavit filed on its behalf, it has been asserted that the petitioners, while running the brick -kiln were carrying on an offensive trade and the Zila Parishad is under section 239(1) of the Act, competent to frame the bye -laws in respect thereof. The Parishad also claimed that the due procedure in framing of said bye -laws has been followed and that it had been rendering service and providing facilities to the brick -kiln owners. According to the Parishad, most of the brick -kilns are situated by the side of roads constructed and maintained by the Zila Parishad and that the brick -kiln owners are using the same for transporting their products. In this connection Sri Raghav Singh, Tax Collector of the Zila Parishad, Deoria has in para 13 of the counter affidavit, claimed that the Zila Parishad is rendering following further services to the petitioners which can be taken into account in determining the propriety of the licence fee: (i) There are 20 dispensaries in the rural areas in which workers employed in brick -kiln get free medical facilities. (ii) Families of labourers who come from out of city also get education in the school situate in rural area. (iii) Smoke emitted by brick -kilns and chimnis cause disease to groves as well as to human beings, Zila Parishad maintains a large number of staff such as vaccinator, health inspectors etc. for preventing disease caused by such smoke. (iv) Zila Parishad provides medicines for preventing diseases in groves caused by smoke of chimnis. Sri Raghav Singh further claimed that during the years 1976 -78, sums of Rs. 21,820/ - and Rs. 25,870/ - respectively for each of the two years had been collected as licence fee from brick -kiln owners and the expenditure by the Zila Parishad in regulating the trade of brick -kilns in these years amounted to Rs. 26,174 -33 p. and Rs. 29,109/ -.
(3.) WHEN the petition came up for hearing, learned counsel for the petitioners did not press the grounds with regard to competence of the Zila Parishad to frame bye -laws under S. 239 of the Adhiniyam. He also did not press the objection with regard to the procedure adopted by the Zila Parishad in framing the impugned bye -laws. He confined his challenge to the bye -laws on the third ground viz. that the Zila Parishad is not competent to realise any amount as licence fee from the petitioners unless it renders some special service to them and the amount of fees so realised from them has some reasonable nexus with the amount spent by it in rendering such service. He urged that any amount realised from the petitioners as licence fee, unconnected with rendering of services amounted to imposition of tax which the Zila Parishad was not competent to do. He vehemently urged that the services which the Zila Parishad claims to be rendering to the licencees are illusory and that they cannot be considered to be special services to the class of persons from whom the licence fee is being realised. In fact these services partake the nature of general services which the Zila Parishad is otherwise bound to render to all the inhabitants residing in the district. Thus, main thrust of the submission made by the learned counsel is directed towards questioning the legality of the provision of bye -laws relating to prescription of licence fee on the ground that inasmuch as the said licence fee has no nexus with the services rendered by the Zila Parishad. It infact amounts to levying of tax which, in the instant case, has been levied by the Zila Parishad without authority.;